How Appealing

Sunday, December 31, 2006

"Chief Justice Urges Pay Raise for Judges; Courts' Viability at Stake, Roberts Says": Robert Barnes will have this article Monday in The Washington Post.
Posted at 10:35 PM by Howard Bashman


"Next big test of power to seize property? The US Supreme Court will examine whether a private company can demand payment in exchange for not seizing private property." Warren Richey will have this article Tuesday in The Christian Science Monitor.
Posted at 06:48 PM by Howard Bashman


"Five Years and Counting in Cuba: There's still little clarity on the legal status of Guantanamo--and its prisoners." This article will appear in the January 8, 2007 issue of U.S. News & World Report.
Posted at 02:33 PM by Howard Bashman


"The verdict that keeps on taking": Today in The Boston Globe, columnist Jeff Jacoby has an op-ed that begins, "The big property rights story of 2005 was the Supreme Court's ruling, in Kelo v. New London, that the Bill of Rights doesn't prevent local governments from seizing private property by eminent domain and turning it over to private developers to generate 'economic development' or higher tax revenues. The anti-Kelo backlash was the big property rights story of 2006."
Posted at 02:25 PM by Howard Bashman


"The Kennedy Factor on the Roberts Court": In the Week in Review section of today's edition of The New York Times, Linda Greenhouse has an article that begins, "The Supreme Court, having decided only four cases since the term began in October, has not exactly been living in the fast lane. But the pace is about to pick up."
Posted at 02:20 PM by Howard Bashman


Saturday, December 30, 2006

"Brian Nichols judge on a singular mission": The Atlanta Journal-Constitution on Sunday will contain an article that begins, "His chambers are down a corridor removed from the commotion, up a flight and beyond three security checkpoints. It's there that, for most of the last eight months, DeKalb County Superior Court Judge Hilton Fuller, along with a staff of two and rotating security guards, has set up what amounts to an exile from the outside world."

The article goes on to report: "In his 24 years as a judge, Fuller has tried cases equally gruesome to the four slayings with which Nichols is charged, and he's rendered decisions that have reverberated far beyond his courtroom. But never has the spotlight shone as glaringly on him as it does in the case of State of Georgia v. Brian Gene Nichols. Nichols is charged in the March 11, 2005, shooting deaths of Superior Court Judge Rowland Barnes and court reporter Julie Ann Brandau inside a Fulton County courtroom, sheriff's deputy Hoyt Teasley outside the courthouse and customs agent David Wilhelm at Wilhelm's Buckhead home. The trial takes place in the same courthouse from which Nichols escaped. It will be prosecuted by six attorneys from the Fulton County district attorney's office who were colleagues of Barnes and Brandau. And, when trial opens Jan. 11, it will be covered by the national media and Court TV. The case is fraught with emotion. And Fuller is doing his best to shield himself from it."
Posted at 09:05 PM by Howard Bashman



"Recent Flexing of Presidential Powers Had Personal Roots in Ford White House": This article appears today in The New York Times.
Posted at 08:33 PM by Howard Bashman


"Appeals Court Rejects Brief Submitted by Ex-Judges": Adam Liptak has this article today in The New York Times.

Liptak's article contains some interesting comments from former D.C. Circuit Judge Abner J. Mikva, who was among the amici whose brief the D.C. Circuit rejected yesterday. According to the article:

Mr. Mikva said the rejection of his brief was motivated by personal animus, not politics. "It's not political at all," he said in an interview. "This was clearly aimed at me."

The judges in the majority, Mr. Mikva said, were furious with him because he opposed allowing judges to accept free trips to resorts for seminars sponsored by private groups.

"They're so close to retirement age," Mr. Mikva said of the judges in the majority. "They really should grow up."

It seems that even if the rejection of the amicus brief wasn't intended as a personal affront to former Judge Mikva, the issue certainly has now become personal between him and his former colleagues still on that court.

The issue of judicial junkets is one that can give rise to strong feelings, but I hadn't initially drawn any connection between yesterday's rejection of an amicus brief in the Guantanamo detainees case and that issue. My earlier coverage of yesterday's D.C. Circuit order can be accessed here.

And at "The Volokh Conspiracy," Jonathan Adler has a post titled "NYT on Judicial Amicus Brief Rejection."
Posted at 08:22 PM by Howard Bashman



"Truth, Justice, Abortion and the Times Magazine": Byron Calame, the Public Editor for The New York Times, will have this essay tomorrow in that newspaper. The focus of Calame's essay is an article about El Salvador headlined "Pro-Life Nation" that was the cover story of The New York Times Magazine on April 9, 2006.
Posted at 08:12 PM by Howard Bashman


"Gerald Ford's Affirmative Action": Jeffrey Toobin has this op-ed today in The New York Times.
Posted at 08:10 PM by Howard Bashman


"For Guantanamo Review Boards, Limits Abound": This article will appear Sunday in The New York Times.
Posted at 08:05 PM by Howard Bashman


"After 30 Years, Supreme Court History Project Turns a Final Page": Linda Greenhouse has this article today in The New York Times.
Posted at 07:55 PM by Howard Bashman


"Las Vegas judge under investigation; The 9th Circuit has hired a law firm to suggest action on James C. Mahan, sources say": The Los Angeles Times today contains an article that begins, "The U.S. 9th Circuit Court of Appeals in San Francisco has launched an investigation of a federal judge who awarded more than $4.8 million in judgments and fees without apparently disclosing his personal, political and business ties to those who benefited, two sources close to the inquiry told The Times. U.S. District Judge James C. Mahan of Las Vegas, a popular state judge who joined the federal bench in 2002 after his nomination by President Bush, was the subject of Times investigative reports in June."

You can access Judge Mahan's official U.S. Courts biography by clicking here.
Posted at 09:00 AM by Howard Bashman



"Racial ban back on for 3 colleges; Court rules admissions policies must comply with Prop 2 right away": The Detroit News today contains an article that begins, "A federal appeals court ruled Friday night that Michigan's three largest universities must immediately remove race and gender consideration from their admissions and financial aid decisions and fully comply with Proposal 2. The ruling of the three-judge panel of the 6th U.S. Circuit Court of Appeals effectively overturned the six-month delay a lower court judge granted last week to the University of Michigan, Michigan State University and Wayne State University."

The Detroit Free Press reports today that "U.S. panel rejects a delay for Prop 2; Affirmative action ban is upheld."

And The Associated Press provides a report headlined "Court: Mich. Schools Can't Admit on Race."

Circuit Judge Jeffrey S. Sutton wrote last night's decision of the U.S. Court of Appeals for the Sixth Circuit on behalf of a unanimous three-judge panel. Various pleadings filed in connection with the matter can be accessed via the home page of the Sixth Circuit's web site.
Posted at 08:57 AM by Howard Bashman



"Review of inmate's execution request; Can judges override wish to end appeals, set new sentencing?" Bob Egelko has this article today in The San Francisco Chronicle.

My earlier coverage appears at this link.
Posted at 08:54 AM by Howard Bashman



"Judges Uphold Law on Inmate Religion": The Associated Press provides this report. My earlier coverage appears here.
Posted at 08:48 AM by Howard Bashman


"The Bill of Wrongs: The 10 most outrageous civil liberties violations of 2006." Dahlia Lithwick has this essay online today at Slate.
Posted at 08:45 AM by Howard Bashman


Friday, December 29, 2006

"Dictator Who Ruled Iraq With Violence Is Hanged for Crimes Against Humanity": This article will appear Saturday in The New York Times.
Posted at 11:14 PM by Howard Bashman


"Appeals court reconsidering execution for Comer": David Kravets of The Associated Press provides this report. My earlier coverage can be accessed here.
Posted at 09:14 PM by Howard Bashman


"What's Wrong With Retired Federal Judges Filing a Friend-of-the-Court Brief?" Eugene Volokh has this post at "The Volokh Conspiracy."

My earlier coverage is at this link.
Posted at 08:55 PM by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "U.S. Judge Weighs Saddam Request" and "U.S. Court Refuses to Spare Iraqi."
Posted at 08:40 PM by Howard Bashman


In case you need one more reason to look forward to 2007: On January 23, 2007, Jan Crawford Greenburg's new book -- "Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court and America's Future" -- will be available for purchase. The book's publisher, Penguin Press, offers a description of the book that begins, "Drawing on unprecedented access to the Supreme Court justices and their inner circles, acclaimed ABC News legal correspondent Jan Crawford Greenburg offers an explosive, newsbreaking account of one of the most momentous political watersheds in recent American history."

Because the book apparently really is newsbreaking in various respects, advance copies aren't being distributed. But you can preorder (and also view the book's cover) at Amazon.
Posted at 05:48 PM by Howard Bashman



"Official: Saddam to Be Executed Tonight." The Associated Press provides this report.

And a related AP report headlined "Saddam Asks U.S. to Block Execution" begins, "Lawyers for Saddam Hussein on Friday made a last-minute appeal to an American court to avert execution in Iraq, asking a judge to block his transfer from U.S. custody to the hands of Iraqi officials."
Posted at 05:38 PM by Howard Bashman



A busy day for Ray Luipa in the Fourth Circuit: In the second of two published opinions that the U.S. Court of Appeals for the Fourth Circuit issued today involving the Religious Land Use and Institutionalized Persons Act, a three-judge panel divides over whether to reinstate certain claims asserted by a Virginia state prison inmate who sued to challenge his removal from the prison's Ramadan observance program.

Circuit Judge J. Harvie Wilkinson III issued a partial dissent that concludes, "It is unfortunate that a policy designed to respect the Ramadan fast for the profound observance that it is should become the means for potentially tying prisons up in knots. No one argues that a court should blindly accept any justification for a prison policy that interferes with religious exercise. But to substitute its own judgment for the accommodative judgment of prison administrators is just as bad." You can access the complete 65-page ruling at this link.
Posted at 05:32 PM by Howard Bashman



"We hold that RLUIPA is a valid exercise of Congress' spending power and that, because Virginia voluntarily accepted federal correctional funds, it cannot avoid the substantive requirements of RLUIPA." So holds a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit in an opinion that Circuit Judge J. Harvie Wilkinson III issued today.

Today's decision also holds: "With respect to sovereign immunity, we find that Congress unambiguously conditioned federal funds on a State's consent to suit. Because that condition does not clearly and unequivocally indicate that the waiver extends to money damages, however, the Eleventh Amendment bars [the plaintiff's] claim for monetary relief against the State."
Posted at 05:25 PM by Howard Bashman



For those who must be in federal court on Tuesday, January 2, 2007: In a post from earlier today, I noted that various federal appellate courts have announced that they will be closed for business on Tuesday, January 2, 2007 in recognition of the National Day of Mourning for President Ford.

The U.S. District Court for the District of Kansas today issued the following statement:

The Court decided this morning to remain open for business on Tuesday, January 2. The decision of the Court was made in part by the knowledge that the 10th Circuit Court of Appeals will remain open and the press of Court business in the District of Kansas. The Court believes that we can best honor the memory of President Ford by continuing to do the people's business.
The Tenth Circuit, meanwhile, which is closed again today due to the latest blizzard to strike Denver, has issued the following statement:
The nation has lost a great leader in President Gerald R. Ford this past week. We remember and honor him in memorial services and personal reminiscences. In the spirit of public service modelled by the late President Ford, the Tenth Circuit Courthouse in Denver, which has been particularly hard hit by the weather recently, will be open on Tuesday. We ask you all to honor the life and memory of President Ford as we express our gratitude for his life of service to this nation.
Those readers who simply must begin the new year by appearing in federal court on the first business day of January 2007 thus have the option of traveling to Denver, Colorado or the State of Kansas.
Posted at 03:38 PM by Howard Bashman


U.S. Court of Appeals for the Ninth Circuit ends 2006 by granting rehearing en banc in four separate cases: You can access all four en banc orders via this link.

The grant of rehearing en banc that's initially of most interest to me is today's order in Comer v. Schriro. The three-judge panel's divided ruling in that case was the subject of my law.com column from September 2006 headlined "When Can an Inmate 'Volunteer' for Death? 9th Circuit rejects a competent inmate's decision to abandon legal challenge to his capital sentence."

In that essay, I wrote:

I am confident that if the state of Arizona seeks further review in Comer's case, either from an en banc 9th Circuit or the U.S. Supreme Court, last week's divided decision holding that it violates the 8th Amendment to abide by the wishes of a so-called death penalty volunteer will be overturned. The three-judge panel majority's unwillingness to allow an unconstitutional execution to occur may be admirable from a policy perspective, but it exceeds their power as Article III judges to issue a ruling in the absence of any actual case or controversy. For better or worse, Article III's limits on judicial power contain no exceptions applicable to the death penalty or 8th Amendment challenges.
My earlier blog-based coverage of the Comer case can be accessed here and here.
Posted at 03:05 PM by Howard Bashman


"Court Won't Consider Judges' Arguments": The Associated Press provides a report that begins, "An appeals court considering whether Guantanamo Bay detainees have constitutional rights said Friday that it will not accept arguments by seven retired federal judges who oppose a new U.S. anti-terrorism law."
Posted at 02:33 PM by Howard Bashman


Seventh Circuit addresses the value of a saccharine claim that fountain Diet Coke isn't only sweetened with NutraSweet brand aspartame: A putative class action initiated in Illinois state court but then removed by the defendant to federal court alleged that the Coca-Cola Company deceived Diet Coke consumers in Illinois by failing to disclose that fountain Diet Coke and bottled Diet Coke are not the same product because the fountain variety of the beverage contains a blend of the sweeteners aspartame and saccharin.

After the federal district court sustained subject-matter jurisdiction over the case but refused to certify a class action, the proposed class representative accepted a settlement of $650 but retained the right to appeal from the denial of class certification and the sustaining of federal court jurisdiction. Today, in an opinion by Circuit Judge Diane S. Sykes, a unanimous three-judge Seventh Circuit panel holds that the federal district court did not err in concluding that the named plaintiff's claim exceeded $75,000 in value on the date of removal and affirms the denial of class certification.
Posted at 01:23 PM by Howard Bashman



Four-day weekend: Various federal appellate courts have announced that they will be closed for business on Tuesday, January 2, 2007 in recognition of the National Day of Mourning for President Ford. Those courts that have thus far posted on the internet news of their closure on Tuesday are the D.C. Circuit, the Second Circuit, the Sixth Circuit, the Eighth Circuit, and the Federal Circuit.

Meanwhile, the Tenth Circuit is closed today due to the latest Denver blizzard.

Update: The Fifth Circuit's web site has been updated to note that the court is officially closed on Tuesday but that oral arguments will proceed as scheduled in Houston. And according to this post from Lyle Denniston at "SCOTUSblog," the U.S. Supreme Court will also be officially closed for business on Tuesday.

Second update: The First Circuit's web site has been updated to note that the court will be closed Tuesday. And so has the Fourth Circuit's web site and the Ninth Circuit's web site.
Posted at 11:50 AM by Howard Bashman



Current judges remind former judges that former judges aren't "judges" any longer: The majority on a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit today issued an order that likely will strike many as rather petty. Today's order states, in full:
Upon consideration of the unopposed motion of retired federal jurists for leave to file brief amici curiae in support of petitioners regarding the Military Commissions Act of 2006, and the lodged brief, it is

ORDERED that the motion for leave to file be denied. See Advisory Opinion No. 72, Committee on Codes of Conduct, Judicial Conference of the United States ("Judges should insure that the title 'judge' is not used in the courtroom or in papers involved in litigation before them to designate a former judge, unless the designation is necessary to describe accurately a person's status at a time pertinent to the lawsuit.").

The Clerk is directed to return to movant-amici curiae the lodged brief.

Circuit Judge Judith W. Rogers issued a short statement noting her disagreement with the order rejecting the amicus brief. It is an interesting question whether the referenced Advisory Opinion, which says that former judges shouldn't be referred to as "judge" in the courtroom or in papers filed in litigation, was intended to prevent former judges from being referred to as "former judges."

At least the policy shouldn't prevent a former judge from operating a web log titled "X-Judge."

Update: Via "SCOTUSblog," you can access the rejected amicus brief at this link.
Posted at 10:20 AM by Howard Bashman



Former U.S. Air Force enlistee who viewed Osama bin Laden as a "hero" loses Sixth Circuit appeal challenging federal criminal conviction for having made false statements on application to become a baggage screener for the Transportation Security Administration: You can access today's ruling of the U.S. Court of Appeals for the Sixth Circuit at this link.
Posted at 10:08 AM by Howard Bashman


The Pittsburgh Post-Gazette is reporting: Today's newspaper contains articles headlined "Teen expelled for rap lyrics reaches $60,000 settlement" and "North Side adult theater exhausting its legal appeals; Garden Theater advocates could ask U.S. Supreme Court to review First Amendment case."
Posted at 09:58 AM by Howard Bashman


"Justices rebuff alumni; Association cannot challenge Milton Hershey School in court": The Harrisburg Patriot-News contains this article today.

My earlier coverage appears at this link.
Posted at 09:55 AM by Howard Bashman



"N.J. court rejects Neulander appeal; The ex-Cherry Hill rabbi said barred testimony led to his trial being unfair": This article appears today in The Philadelphia Inquirer.

The Newark Star-Ledger reports today that "Murderous rabbi loses his bid for a third trial."

And The Courier-Post of Cherry Hill, New Jersey reports that "Neulander loses bid for retrial."

My earlier coverage appears at this link.
Posted at 09:52 AM by Howard Bashman



"Justices asked to hear failure-to-appear case": The Stamford Advocate contains this article today.
Posted at 09:45 AM by Howard Bashman


"With a Game at Dartmouth, Fighting Sioux Stir Debate": This article appears today in The New York Times.

And The Boston Globe reports today that "Criticism of team's name heats up Dartmouth game; Sioux imagery is 'offensive,' says AD."
Posted at 09:35 AM by Howard Bashman



"'Chronicle' Reporters Face Jail Over Steroids Leak": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition."
Posted at 09:32 AM by Howard Bashman


"Baseball players to fight court ruling": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "A federal appeals court ruling allowing prosecutors to seize and use confidential drug-testing records of baseball players threatens the right to privacy and will be challenged, the head of the Major League Baseball Players Association said Thursday."
Posted at 09:30 AM by Howard Bashman


Gross disobedience of employer's safety instructions leads Supreme Court of Ohio to uphold denial of workers' compensation benefits to KFC employee injured in workplace mishap: The New York Times reports today that "Ohio Ruling Denying Pay in Job Injury Draws Debate."

The Columbus Dispatch reported yesterday that "Negligent may lose, judges rule."

The Toledo Blade reported yesterday that "Court rules against injured worker; Employee fired for causing own injury can be denied benefits, justices say."

And The Cleveland Plain Dealer reported yesterday that "Denial of on-job injury pay upheld; Stubborn teen gave up rights, top court rules."

You can access Wednesday's ruling of Ohio's highest court at this link.
Posted at 07:54 AM by Howard Bashman



All of the above: Question one in columnist William Safire's "The Office Pool, 2007" asks:
1. The "O'Connorless Supreme Court" will decide

(a) without reversing Roe v. Wade to uphold laws restricting late-term abortion because they do not impose an "undue burden" on women

(b) that public schools in Seattle and Louisville, in their zeal to prevent re-segregation, have gone too far in using race in selection of students

(c) to reject Massachusetts' case to force the Environmental Protection Agency to raise auto emissions standards, holding that "global warming" gives the state no standing to sue without new law

And Safire's own quite plausible prediction in response to this question is "All."
Posted at 07:40 AM by Howard Bashman


"McCain-Feingold in the Dock: Where do Alito and Roberts stand on free political speech?" This editorial (free access) appears today in The Wall Street Journal.
Posted at 07:35 AM by Howard Bashman


Thursday, December 28, 2006

"Appellate Justices Hopping Mad Over Superior Court Judge's 'Kangaroo Court' Reference": law.com provides this report, in which the trial judge who made reference to "the kangaroos up there in kangaroo court" explains that he wasn't referring to the California Court of Appeal. Indeed, according to the trial judge, he wasn't even referring to a court at all, but rather to the district attorney's office's "strike team." The article closes: "'They wasted a lot of pages,' [the trial judge] said. 'If they wanted to know what I meant, they should've asked me.'"

My earlier coverage appears at this link.
Posted at 10:30 PM by Howard Bashman



"Court Reprimands Ohio Governor Over Gifts": This article appears today in The New York Times.

The Columbus Dispatch reports today that "Court scolds Taft on ethics; Justices hand governor formal public reprimand."

The Cleveland Plain Dealer reports that "Ohio justices slap Taft over gifts; Failure to report nets reprimand."

And The Toledo Blade reports that "Taft given law-license reprimand; justices OK ethics sanction over failure to report gifts."

My earlier coverage appears at this link.
Posted at 10:24 PM by Howard Bashman



Chief Judge Easterbrook versus Circuit Judge Posner, once again: For the second time in the past eight days, the U.S. Court of Appeals for the Seventh Circuit has issued a ruling in which the Chief Judge Frank H. Easterbrook wrote the majority opinion from which Circuit Judge Richard A. Posner dissented.

In today's decision, a pro se prisoner whose claim of sexual abuse at the hands of a prison guard survived summary judgment but then was rejected by a jury at trial argues on appeal that the federal district judge abused his discretion in denying the prisoner's request for the recruitment of counsel pursuant to 28 U.S.C. sec. 1915(e)(1). The majority holds that the trial court's decision did not constitute an abuse of discretion and that a trial court's plausible decision whether to recruit counsel for a pro se litigant would never be subject to reversal. Judge Posner dissents, holding that while many pro se litigants are quite capable of representing themselves at trial, it should have been obvious to the trial judge that this pro se prisoner was unlikely to be one such minimally competent pro se litigant at trial.

Unlike in connection with last week's case, when I concluded that Judge Posner's dissent offered a much more convincing argument than Chief Judge Easterbrook's majority opinion, today's ruling presents a much closer call. It's easy to feel sympathetic toward the prisoner, who plainly was unable to equal counsel for the defendants in the quality of his presentation. But, at the same time, the majority opinion makes a very strong case for why a trial judge's reasoned exercise of discretion in advance of trial concerning whether to recruit counsel should not be second-guessed with the benefit of hindsight.
Posted at 10:08 PM by Howard Bashman



"MLB Players Union Vows to Fight Ruling": The Associated Press provides a report that begins, "Major League Baseball's players' association will fight a federal appeals court's decision to give prosecutors access to the names and urine samples of about 100 players who tested positive for steroids in 2003."

My earlier coverage appears here and here.
Posted at 08:22 PM by Howard Bashman



"Appeals court rejects rabbi's claim that murder trial was unfair": The Associated Press provides this article reporting that the Appellate Division of the Superior Court of New Jersey today issued a 66-page unpublished opinion affirming the murder conviction of Rabbi Fred Neulander.
Posted at 05:55 PM by Howard Bashman


Not an auspicious day to be a rescuer on the Pennsylvania Turnpike: Demonstrating the accuracy of the saying "No good deed goes unpunished," today the U.S. Court of Appeals for the Third Circuit issued a decision that involves some rather unfortunate facts. On the evening of May 12, 2002 in a heavy rain, a man traveling on the Pennsylvania Turnpike with his wife and children noticed that another car had just overturned off the right side of the highway. The man and his wife were both trained and certified in first aid by the Red Cross, so they pulled their car to the shoulder of the highway and went to assist the occupants of the overturned vehicle. Fortunately, both passengers in the overturned vehicle appeared unharmed and were able to remove themselves from their vehicle.

The male rescuer stood outside his vehicle while awaiting the arrival of the police. Before the police arrived, a third vehicle lost control, swerved, and hydroplaned into the rescuers' parked vehicle, killing the male rescuer. Thereafter, his widow sued the passengers of the overturned vehicle, alleging that their negligence in causing the first accident, which prompted the rescuers to respond, placed the male rescuer in the way of harm that ultimately led to his death.

Although the story is quite tragic, the rescuer's widow received somewhat happy news today, in that a unanimous Third Circuit panel has reversed the grant of summary judgment that had dismissed the widow's lawsuit against the passengers of the overturned vehicle. You can access today's ruling at this link.
Posted at 05:40 PM by Howard Bashman



The U.S. Court of Appeals for the Second Circuit is seeking a new Clerk of Court: You can access the job posting announcement at this link.
Posted at 05:20 PM by Howard Bashman


"Ford and the Court": Jess Bravin has this post at WSJ.com's "Washington Wire" blog.
Posted at 04:58 PM by Howard Bashman


"Uncertainty on Texas death penalty cases": Lyle Denniston has this post today at "SCOTUSblog." My related earlier post can be accessed here.
Posted at 04:54 PM by Howard Bashman


In news updates freely available online from The Legal Intelligencer: An update reports that "Fetal Homicide Statute Ruled Constitutional." Yesterday's ruling of the Supreme Court of Pennsylvania consists of both a majority opinion and a concurring opinion.

And a second update reports that "Hershey Alumni Assoc. Has No Standing to Sue School." Yesterday's ruling of the Supreme Court of Pennsylvania can be accessed at this link.
Posted at 04:50 PM by Howard Bashman



"Dems Likely to Resurrect Detainee Issue": The Associated Press provides a report that begins, "Senate Democrats plan to use their newfound power to revisit one of the most contentious national security matters of 2006: Deciding what legal rights must be protected for detainees held in the war on terrorism."
Posted at 04:45 PM by Howard Bashman


Programming note: My final appellate brief of 2006 is due to be filed today. As a result, I'll be away from the internet this afternoon while visiting with co-counsel to finalize the document. Additional posts will appear here this evening.
Posted at 10:58 AM by Howard Bashman


"Ruling Erases Players' Victories in a Steroids Case": Murray Chass has this "On Baseball" column today in The New York Times.

Today in The New York Sun, Josh Gerstein reports that "Baseball Players' Failed Steroid Tests May Be Examined."

In The San Francisco Chronicle, Bob Egelko reports that "100 big-leaguers steroid-positive in 2003 season; Court rules federal prosecutors can use tests for investigation."

And The Washington Post contains an article headlined "Court: Investigators Can Keep Positive Test Results."

My earlier coverage appears at this link.
Posted at 10:57 AM by Howard Bashman



"Testimony on tumor to be heard in drug case retrial": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "A federal appeals court overturned an East Bay man's drug-dealing conviction Wednesday, saying jurors should have been allowed to hear from medical witnesses who were prepared to testify that a large brain tumor made the defendant vulnerable to suggestion and entrapment by government informants."

And Josh Richman of The Oakland Tribune reports today that "Hayward man to receive new trial; Brain tumor damaged judgment, making convicted meth dealer susceptible to suggestion."

You can access yesterday's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 10:54 AM by Howard Bashman



"Ford's 1975 pick still a key player on high court; Justice John Paul Stevens has emerged as the leader of the liberal bloc": David G. Savage has this article today in The Los Angeles Times.
Posted at 10:48 AM by Howard Bashman


"Vote on gay marriage is due but can't be forced, SJC says; Next step is up to Legislature": This article appears today in The Boston Globe.

The Los Angeles Times reports today that "Gay marriage vote unlikely; Massachusetts high court says, unhappily, that it can't force lawmakers to address a bid to repeal the law."

And The Republican of Springfield, Massachusetts reports that "Court dismisses Romney suit."

My earlier coverage can be accessed here.
Posted at 10:44 AM by Howard Bashman



"U.S. arrest of brutal island employer legal: court." Reuters provides a report that begins, "U.S. officials acted correctly in arresting a brutal garment factory owner in the remote South Pacific island of American Samoa and sending him 2,300 miles to Hawaii to face trial, a federal appeals court ruled on Wednesday."

My earlier coverage appears at this link.
Posted at 10:40 AM by Howard Bashman



"Ford's Supreme Court Legacy: Justice John Paul Stevens Remains One of Ford's Most Enduring Legacies." Jan Crawford Greenburg of ABC News provides this written report.
Posted at 10:24 AM by Howard Bashman


"Judge won't revive charges against abortion doctor; He rules that Kansas' attorney general lacked authority to push the criminal case forward": The Los Angeles Times contains this article today.

The Wichita Eagle today contains articles headlined "Judge rejects appeal, Kline names prosecutor; Turf issues over Tiller case collide in district court" and "McKinney a longtime abortion foe."

The Kansas City Star reports that "Kline tries to keep investigation alive; Charges against abortion doctor are still blocked, but inquiry gets special prosecutor."

The Topeka Capital-Journal reports that "Kline loses fight to have charges against Tiller reinstated."

And The Lawrence Journal-World reports that "Abortion charges again rejected; Kline to appoint special prosecutor."
Posted at 09:10 AM by Howard Bashman



"He wanted to be judged on Supreme Court nomination": This article about former President Gerald R. Ford appears today in The Chicago Tribune.

President Ford's letter from 2005 to the Dean of the Fordham University School of Law honoring Justice John Paul Stevens' 30 years of service on the Supreme Court of the United States can be viewed at this link, while additional background on the letter can be accessed here.
Posted at 09:03 AM by Howard Bashman



"The Constitution, Capital Punishment And Clemency Proceedings": Carl Tobias has this essay online today at FindLaw.
Posted at 06:33 AM by Howard Bashman


Wednesday, December 27, 2006

Imagine that -- appellate judges don't take kindly to trial judge's characterization of appellate court as "kangaroo court": Coming hard on the heels of my posting this morning of the petition for writ of certiorari in Fieger v. Michigan Grievance Administrator -- a case asking whether an attorney has a First Amendment right to publicly express non-defamatory personal criticism of a judge -- is this gem of an opinion from California's Court of Appeal for the Third Appellate District.

According to that decision issued today, the trial judge on the record stated to counsel in open court, "You can't offend the kangaroos up there in kangaroo court." Although the Court of Appeal could have brushed off the insult by declaring that the trial judge must have been referring to the Supreme Court of California, instead the appellate judges decided that the trial judge must have been referring to their intermediate appellate court.

Additional coverage of the ruling can be found online at "California Appellate Report" and "PrawfsBlawg."
Posted at 08:55 PM by Howard Bashman



"Gerald Ford's impact on the Court": Lyle Denniston has this commentary online at "SCOTUSblog."
Posted at 08:30 PM by Howard Bashman


What's a federal appellate court to do when the U.S. Supreme Court grants a petition for writ of certiorari in a case in which a timely-filed petition for rehearing en banc remains pending before the federal appellate court? Today, the U.S. Court of Appeals for the Fifth Circuit issued an order denying the petition for rehearing en banc filed in Brewer v. Quarterman.

What makes that otherwise mundane action noteworthy is that the U.S. Supreme Court, on October 13, 2006, granted Brewer's petition for writ of certiorari and agreed to hear and decide that case on the merits. The questions presented can be accessed here, while the Supreme Court's docket entries can be viewed at this link.

The Supreme Court's grant of certiorari appears to have led eight of the Fifth Circuit's fifteen current active judges to abstain from voting on the petition for rehearing en banc. Today's order, entered by Circuit Judge Jerry E. Smith, states that "[t]his order is entered, and the court voted to deny rehearing en banc, solely to resolve any potential question of the judgment's finality in this court and to clarify the Supreme Court's jurisdiction over the case."

Circuit Judge James L. Dennis, listed as one of the eight active judges who refrained from voting on the petition for rehearing en banc, issued a five-page dissent "from the attempt to exercise jurisdiction" in which he writes: "In its haste to attempt to ensure that the Supreme Court keeps the case and reaches the merits, however, the minority of this court's judges attempting to exercise jurisdiction herein have ignored well-established limits on this court's jurisdiction and, in the process, trespassed upon the jurisdiction of the Supreme Court."

Both the order denying rehearing en banc and Judge Dennis's dissent from the attempt to exercise jurisdiction mention the en banc Fifth Circuit's ruling earlier this month in Nelson v. Quarterman, in which the en banc court by a vote of 9-7 overturned a Texas state court death sentence on a finding of a Penry violation. Some of the seven dissenters in Nelson are among the eight who refrained from voting on today's order denying rehearing en banc, so perhaps today's order ought not be viewed as a raw power-play by the dissenters in Nelson who may hope their views will receive a more sympathetic audience from the nine Justices upstairs.

It is interesting to note that, according to the U.S. Supreme Court's docket, Brewer himself on December 14, 2006 filed a motion in the Supreme Court asking that his case be remanded to the Fifth Circuit for reconsideration in light of that federal appellate court's recent en banc ruling in Nelson. That motion is scheduled to be considered at the Supreme Court's conference of January 5, 2007, while the case itself is currently scheduled to be argued on the merits in the Supreme Court on January 17th.
Posted at 08:18 PM by Howard Bashman



"This appeal raises the issue of whether a person arrested in American Samoa for allegedly committing federal crimes in American Samoa may be tried and convicted in the United States District Court for the District of Hawaii." So begins an opinion that the U.S. Court of Appeals for the Ninth Circuit issued today.

The question arises because, although the U.S. Congress made federal criminal law applicable to American Samoa, Congress did not create federal district courts for that territory. As a result, federal criminal charges must be tried someplace else that has a federal district court, and because Hawaii was the federal judicial district to which the defendant/appellant in today's case was "first brought," the Ninth Circuit rejects the defendant's challenge to his conviction.
Posted at 06:14 PM by Howard Bashman



"Court: Feds Entitled to MLB Steroid Data." The Associated Press provides a report that begins, "The names and urine samples of about 100 Major League Baseball players who tested positive three years ago can be used by federal investigators, a court ruled Wednesday - a decision that could have implications for Barry Bonds." You can access today's lengthy ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.

Today's ruling involves three consolidated appeals from three separate U.S. District Courts within the Ninth Circuit. The caption of the second consolidated appeal states that the case arises on "Appeal from the United States District Court for the Southern District of Nevada." As an eagle-eyed reader of this blog has helpfully observed via email, the entire State of Nevada is served by a single U.S. District Court for the District of Nevada.
Posted at 05:54 PM by Howard Bashman



Programming note: My final appellate brief of 2006 is due to be filed tomorrow. As a result, I'll be away from the internet this afternoon while visiting with co-counsel to finalize the document. Additional posts will appear here this evening.
Posted at 11:33 AM by Howard Bashman


"Ohio Gov. Taft Reprimanded Over Ethics": The AP provides a report that begins, "The state Supreme Court on Wednesday publicly reprimanded Ohio Gov. Bob Taft for his ethics violations in office, a black mark that will stay on his permanent record as an attorney."

And the Office of Public Information of the Supreme Court of Ohio has issued a news release headlined "Governor Taft Reprimanded." You can access that court's ruling, issued today, at this link.
Posted at 10:35 AM by Howard Bashman



"Mass. Court Won't Force Marriage Vote": The Associated Press provides a report that begins, "The state's highest court on Wednesday said it had no authority to force lawmakers to vote on a proposed constitutional amendment to ban gay marriage."

You can access this morning's ruling of the Supreme Judicial Court of Massachusetts at this link.
Posted at 10:25 AM by Howard Bashman



"Race ban backers try to lift colleges' delay": On Saturday, The Detroit News published an article that begins, "An anti-affirmative action group headed to the U.S. Sixth Circuit Court of Appeals in a last-minute effort to force the state's three largest universities to comply with Proposal 2 today -- the date when the constitutional amendment was scheduled to take effect."

Yesterday, the Sixth Circuit issued an order calling for expedited briefing of the Emergency Motion for a Stay Pending Appeal and the related petition for writ of mandamus.
Posted at 10:15 AM by Howard Bashman



"D.C. Circuit Panel to Reconsider Tax Ruling": Peter Lattman today has this post, in which I am quoted, at WSJ.com's "Law Blog."
Posted at 10:11 AM by Howard Bashman


"Justices lose one to Fieger; Federal appeals court gives him chance to prove bias": The Detroit Free Press today contains an article that begins, "Southfield lawyer Geoffrey Fieger scored a point in his feud with the state Supreme Court on Tuesday when a federal court ruled he can continue his efforts to disqualify certain justices he claims are biased against him from hearing his cases."

And The Detroit News reports today that "Fieger wins right to fight judges; Southfield attorney can challenge state high court justices' refusal to recuse themselves." The newspaper also contains an editorial entitled "Michigan's high court should have conflict of interest rules; The rules should be limited to real issues, not politics."

My earlier recent coverage of this matter can be accessed here and here.

As I noted in the earlier of those two posts, the Supreme Court of Michigan's ruling on the merits in the Fieger disciplinary case is now the subject of a petition for writ of certiorari pending before the U.S. Supreme Court in a case captioned Fieger v. Michigan Grievance Administrator at No. 06-596. I have obtained an electronic copy of that cert. petition, whose question presented asks:

Does an attorney have a First Amendment right to publicly express non-defamatory personal criticism of a judge when that criticism could not affect any pending trial, as the Ninth Circuit and the supreme courts of Colorado, Oklahoma, and Tennessee have held, or is an attorney subject to discipline for such criticism, as the Seventh Circuit and the supreme courts of Michigan, Mississippi, and Missouri have held?
You can access the complete cert. petition, with appendix, by clicking here.
Posted at 07:45 AM by Howard Bashman


"Iraqi Court Says Hussein Must Die Within 30 Days": This article appears today in The New York Times.

The Washington Post today contains a front page article headlined "Iraqi Court Upholds Hussein's Sentence; Hanging Could Happen Within 30 Days."

The Los Angeles Times reports that "Iraqi court upholds death for Hussein; Execution must take place within 30 days, judges rule; No more appeals are possible."

And USA Today reports that "Saddam to hang within 30 days."
Posted at 07:35 AM by Howard Bashman



"FBI Says Files In Leak Cases Are 'Missing'": Today in The New York Sun, Josh Gerstein has an article that begins, "The FBI is missing nearly a quarter of its files relating to investigations of recent leaks of classified information, according to a court filing the bureau made last week."
Posted at 07:33 AM by Howard Bashman


"Guantanamo needs courthouse, Pentagon says": The Los Angeles Times today contains an article that begins, "Although the Pentagon estimates that no more than 80 of the 400 or so terrorism detainees here will ever be tried, it is moving forward with plans for a $125-million legal complex."
Posted at 07:28 AM by Howard Bashman


"Remnants Of a Trial Prompt a Crusade; Va. Man Seeks End To Security Measures": The Washington Post today contains an article that begins, "Jim Savage has been living in a world of guard shacks, green security poles and Jersey barricades lining the street outside his home next to the federal courthouse in Alexandria. They were put there for the trial of a terrorist, Sept. 11 conspirator Zacarias Moussaoui, and they were supposed to come down when the trial was over. Seven months after it ended, they are still there."
Posted at 07:20 AM by Howard Bashman


"Maryland's Death Penalty: It's time to discuss giving it up." This editorial appears today in The Washington Post.
Posted at 07:18 AM by Howard Bashman


The Associated Press is reporting: An article headlined "Ford Once Sought Impeachment of Justice" reports that "In April 1970, at the request of White House aide John Ehrlichman, Ford led an effort by more than 100 House members to impeach Supreme Court Justice William O. Douglas." Of course, President Gerald R. Ford, who died overnight, was also the President who placed Justice John Paul Stevens on the U.S. Supreme Court.

And an article headlined "Cyberspace Sex Scandal Heads to Trial" begins, "When Robert Steinbuch discovered his girlfriend had discussed intimate details about their sex life in her online diary, the Capitol Hill staffer didn't just get mad. He got a lawyer. Soon, though, the racy tidbits about the sex lives of the two Senate aides faded from the front pages and the gossip pages. Steinbuch accepted a teaching job in Arkansas, leaving Washington and Jessica Cutler's 'Washingtonienne' Web log behind."
Posted at 07:10 AM by Howard Bashman



"Wallace withdrawal opens space; Bush can now select another nominee": The Biloxi Sun Herald today contains an article that begins, "Attorney Michael B. Wallace, in asking President Bush on Tuesday to withdraw his nomination for a U.S. Court of Appeals seat, said 'it is the right thing to do for Mississippi.' Wallace, a Biloxi native and Jackson attorney, was among six appellate court nominees whose approval was stalled earlier this year. Some political analysts have blamed the stall on the new Democrat-controlled Senate's clash with Bush's push to satisfy his conservative base."
Posted at 06:58 AM by Howard Bashman


"Ex-Judges Back Man Who Says U.S. Sent Him To Be Tortured": Today in The New York Sun, Joseph Goldstein has an article that begins, "A group of retired federal judges is backing a lawsuit by a Canadian citizen who claims America sent him to Syria to be tortured. The former judges, who come from the 3rd, 6th, 9th, and D.C. circuit courts of appeals, filed a brief urging the 2nd U.S. Circuit Court of Appeals, which sits in New York, to allow the lawsuit to go forward."
Posted at 06:55 AM by Howard Bashman


"Why the Public/Private Distinction Should Not Govern the Courtroom: The Supreme Court's Flawed Decision in Carey v. Musladin." Sherry F. Colb has this essay online today at FindLaw.
Posted at 06:50 AM by Howard Bashman


Tuesday, December 26, 2006

"Retiring justice laments influence of money; But he's hopeful times are changing": The Las Vegas Review-Journal today contains an article that begins, "Too many Nevadans hold the view that justice is for sale and only the rich can afford good lawyers, retiring Supreme Court Chief Justice Bob Rose says."
Posted at 10:05 PM by Howard Bashman


"Fieger wins partial victory in feud with state high court": The Detroit News provides an update that begins, "A federal appeals court today upheld lawyer Geoffrey Fieger's challenge to the way the Michigan Supreme Court handles requests for judges to recuse themselves. The decision of the U.S. 6th Circuit Court of Appeals in Cincinnati is a partial victory for Fieger and a setback for a Michigan Supreme Court that has been in the news because of internal dissension."

And The Associated Press provides a report headlined "Court: Fieger can continue recusal try against GOP justices."
Posted at 08:27 PM by Howard Bashman



"Miss. Attorney Asks Out of Nomination": The Associated Press provides a report that begins, "A Mississippi attorney asked President Bush to withdraw his nomination to the 5th U.S. Circuit Court of Appeals, saying he doesn't believe the senior Democrat on the Senate Judiciary Committee considers him a consensus nominee. Jackson attorney Michael Wallace, 54, told The Associated Press on Tuesday that he made the request in a letter sent late last week."
Posted at 08:20 PM by Howard Bashman


"Notice of Proposed Circuit Rule Changes And Opportunity for Comment": The U.S. Court of Appeals for the Seventh Circuit has today given notice of a proposed change to its local rules to accommodate Federal Rule of Appellate Procedure 32.1, which nominally took effect on December 1, 2006 but which really, really takes effect January 1, 2007.
Posted at 05:08 PM by Howard Bashman


"Questioning Capital Punishment": Bruce Shapiro will have this essay in the January 8, 2007 issue of The Nation.
Posted at 04:40 PM by Howard Bashman


"Texas City Tests Religion Law": The Associated Press provides an article reporting that "The Texas Supreme Court is expected to hear arguments in March or April on whether Sinton's zoning ordinance violates the state's Religious Freedom Restoration Act."

Thanks to the web site of the Supreme Court of Texas, you can access the briefs filed in the case via this link.
Posted at 04:33 PM by Howard Bashman



"Misjudging a judge": Last Thursday's edition of Newsday contained an editorial that begins, "In the annals of politicians using the federal judiciary as a foil to advance their own careers, the shenanigans of Sen. Sam Brownback (R-Kan.) will earn a special spot in the section dedicated to bigoted fools."

Also that day, U.S. Senator Sam Brownback (R-KS) had an op-ed in The Grand Rapids Press entitled "Assurance needed Neff won't be an activist judge."

And The Kalamazoo Gazette published a related editorial entitled "Senate should honor deal on federal judges."
Posted at 02:45 PM by Howard Bashman



"Kansas Judge Lets AG Press Abortion Case": The Associated Press provides a report that begins, "A judge agreed Tuesday to let Kansas' attorney general, a vocal abortion opponent, try to persuade him to reinstate charges against a well-known abortion provider."
Posted at 02:25 PM by Howard Bashman


"Court Upholds Saddam's Death Sentence": The Washington Post provides this news update.

And The New York Times provides a news update headlined "Court Upholds Death Penalty for Hussein."
Posted at 12:15 PM by Howard Bashman



D.C. Circuit grants panel rehearing in Murphy v. IRS: "TaxProf Blog" provides a post titled "D.C. Circuit Panel Agrees to Rehear Murphy." Because rehearing has been granted before the original three-judge panel, the en banc D.C. Circuit has dismissed the federal government's petition for rehearing en banc as moot. "TaxProf Blog" links to the orders granting panel rehearing and denying rehearing en banc as moot.

In Murphy, a unanimous three-judge D.C. Circuit panel held 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 now-vacated three-judge panel's ruling at this link. My initial coverage of that ruling appears here.
Posted at 11:10 AM by Howard Bashman



"Rising near the top of U.S. judicial hierarchy; Supreme Court goal in Easterbrook reach": The Buffalo News yesterday published an article that begins, "When Frank H. Easterbrook was a teenager, winning awards for playing the French horn and acting in plays at Kenmore West High School, his father could tell there was something special about him."
Posted at 10:12 AM by Howard Bashman


U.S. Court of Appeals for the Sixth Circuit reinstates attorney Geoffrey N. Fieger's challenge to the constitutionality of the recusal rules applicable to the Justices serving on the Supreme Court of Michigan: Last night, in a post you can access here, I noted some remarkably acrimonious developments last week among the Justices on Michigan's highest court in a case involving disciplinary sanctions against attorney Geoffrey N. Fieger. As last night's post notes, the state court proceedings from Michigan are now the subject of Fieger's petition for writ of certiorari pending before the U.S. Supreme Court at No. 06-596.

Today, a related aspect of attorney Fieger's recusal-related battle against various Justices on Michigan's highest court produced a ruling from the U.S. Court of Appeals for the Sixth Circuit. And today, Fieger achieved a significant if partial victory, as the Sixth Circuit has reinstated his challenge to the constitutionality of the recusal rules applicable to the Justices serving on the Supreme Court of Michigan.
Posted at 10:00 AM by Howard Bashman



"Court Upholds Saddam's Death Sentence": The Associated Press provides a report that begins, "An Iraqi appeals court has upheld the death sentence for Saddam Hussein, Iraq's national security adviser said Tuesday."

Reuters provides a report headlined "Saddam loses death sentence appeal: govt official."

BBC News reports that "Death sentence for Saddam upheld; An Iraqi appeals court has upheld the death sentence against ousted President Saddam Hussein, Iraq's national security adviser has said."

And CNN.com reports that "Iraqi court upholds Hussein death sentence."
Posted at 09:20 AM by Howard Bashman



"2006 Appellate Year in Review": Today's installment of my "On Appeal" column for law.com can be accessed at this link.
Posted at 07:00 AM by Howard Bashman


"Anonymous testimony pushes limits; Defense lawyers say justice isn't served if they can't know the identities of the Israeli agents": The Los Angeles Times today contains an article that begins, "In three current high-profile criminal cases, federal prosecutors have asked that the identities of Israeli government witnesses be withheld from defendants and their attorneys -- a move some legal scholars see as a highly unusual end run around the 6th Amendment."
Posted at 06:55 AM by Howard Bashman


"St. Louis judge's outspoken book causing controversy": The St. Louis Post-Dispatch today contains an article that begins, "A liberal-bashing book by a veteran St. Louis judge is to become available publicly this week, but it is already causing a stir in political and legal circles -- and prompting some to say it could cost him his job."
Posted at 06:48 AM by Howard Bashman


"A Delusional System of Justice": Today in The Washington Post, columnist Richard Cohen has an op-ed in which he writes, "My person of the year is Gregory Thompson. I choose him to call attention to the madness of the death penalty."
Posted at 06:45 AM by Howard Bashman


"Justice Dept. Database Stirs Privacy Fears; Size and Scope of the Interagency Investigative Tool Worry Civil Libertarians": This article appears today in The Washington Post.
Posted at 06:42 AM by Howard Bashman


"Courts Side With NSA On Wiretaps": Today in The New York Sun, Joseph Goldstein has an article that begins, "Defense lawyers who had hoped that the public disclosure a year ago of the National Security Agency's wiretapping program would yield information favorable to their clients are being rebuffed by the federal judiciary, which in a series of unusually consistent rulings has rejected efforts by terrorism suspects to access the records."
Posted at 06:32 AM by Howard Bashman


"All But the Name of Marriage: New Jersey Adopts 'Civil Unions' for Same-Sex Couples." Joanna Grossman has this essay online at FindLaw.
Posted at 06:30 AM by Howard Bashman


Monday, December 25, 2006

"Assessing the Supreme Court": Indian Country Today offers an article that begins, "A U.S. Supreme Court considered anti-Indian by the balance of opinion in Indian country didn't improve its standing with these critics in 2006, but worth noting is that it didn't render decisions against Indian interests so much as it allowed lower court decisions to stand. And it took on one case, to be argued in January, concerning federal impact aid funding to schools that serve Indian students."
Posted at 11:55 PM by Howard Bashman


"High court's feud erupts over case involving Fieger": The Detroit Free Press on Friday published an article that begins, "A bitter and long-standing feud within the Michigan Supreme Court erupted into open warfare Thursday as Justice Elizabeth Weaver issued a stinging denunciation of the court's Republican majority and what she said was an attempt to gag dissenters. In a flurry of opinions, Weaver and the other justices exchanged accusations over a variety of grievances stemming from a case involving firebrand Southfield attorney Geoffrey Fieger. Longtime observers of the court said the eruption was like nothing any of them could recall."

Also on Friday, The Free Press contained an editorial entitled "Fairness questioned at state Supreme Court." And columnist Brian Dickerson had an op-ed entitled "Oyez, oyez: God help this dysfunctional court!" One week earlier, Dickerson had a related op-ed entitled "Flustered court rushes to gag a rogue justice."

Booth Newspapers on Friday published an article headlined "Supreme Court revives Fieger-inspired tussle."

And The Associated Press provided reports headlined "Top state court denies Fieger request to postpone reprimand; Majority of justices say the action will not harm his ability to practice law as he makes an appeal" and "Justice Weaver again criticizes other Republicans on Michigan Supreme Court."

Last Thursday's ruling of the Supreme Court of Michigan denying a stay in the Fieger matter, which includes the previously suppressed dissent by Justice Elizabeth A. Weaver, can be accessed here. The December 6, 2006 order that, in the words of The Associated Press headline caused "Justice Weaver [to] again criticize other Republicans on Michigan Supreme Court" can be accessed here, while Justice Weaver's dissent from that order can be accessed here.

The Supreme Court of Michigan's ruling on the merits in the Fieger disciplinary case, issued on July 31, 2006, can be accessed here, while the briefs filed in that case can be accessed via this link.

The Supreme Court of the United States has docketed the petition for writ of certiorari in Fieger v. Michigan Grievance Administrator at No. 06-596.
Posted at 11:40 PM by Howard Bashman



"Stinging new book may cost judge job, some say": This article will appear Tuesday in The St. Louis Post-Dispatch.
Posted at 11:10 PM by Howard Bashman


"The meaning of Brown vs. the Board: The 1954 opinion did not establish colorblindness as a legal principle; There is no ambiguity to be decided in the high court's current cases." Law Professor Goodwin Liu has this op-ed today in The Los Angeles Times.
Posted at 05:10 PM by Howard Bashman


"FBI Chided for OKC Bomb Investigation": The AP provides a report that begins, "A two-year congressional inquiry into the Oklahoma City bombing concludes that the FBI didn't fully investigate whether other suspects may have helped Timothy McVeigh and Terry Nichols with the deadly 1995 attack, allowing questions to linger a decade later."
Posted at 05:04 PM by Howard Bashman


"High Court Becomes More Media Friendly": Mark Sherman of The Associated Press provides this report.
Posted at 04:50 PM by Howard Bashman


"Blawg Review Awards 2006": Available here, from "Blawg Review."
Posted at 04:45 PM by Howard Bashman


Sunday, December 24, 2006

"Md. Death Penalty May Come To Fore": This article appears today in The Washington Post.
Posted at 03:25 PM by Howard Bashman


"High court could rule school desegregation plans unconstitutional": The MetroWest Daily News of Framingham, Massachusetts today contains an article that begins, "Framingham's system for creating racially balanced schools - along with about 20 other policies in districts across the state - could be considered unconstitutional if the U.S. Supreme Court, as many expect, rules in favor of the plaintiffs in two cases it heard earlier this month."
Posted at 03:15 PM by Howard Bashman


"Supreme Court justice has surgery": The Associated Press provides this report from Vermont. The Supreme Court of Vermont has just five Justices, and Justice Brian L. Burgess is the court's newest member.
Posted at 03:14 PM by Howard Bashman


"Voiding of same-sex divorce is appealed": On Thursday, The Tulsa World published an article that begins, "A woman who sought a same-gender divorce in Tulsa County is appealing a judge's decision to set aside the divorce decree that he granted last month when he didn't know that both parties in the case were women. Documents filed Wednesday with the state Supreme Court indicate that issues being raised on appeal include whether the Oklahoma Constitution -- which states that a marriage in this state shall consist only of the union of one man and one woman -- is unconstitutional." You can also access the article in PDF format.
Posted at 03:10 PM by Howard Bashman


Saturday, December 23, 2006

"Kansas judge dismisses abortion charges; The outgoing attorney general's case against a doctor is tossed; 'This is war,' says the head of Kansans for Life": The Los Angeles Times today contains an article that begins, "Hours after the outgoing attorney general of Kansas charged one of the nation's few late-term abortion providers with illegally aborting viable fetuses, a judge dismissed the charges, ruling Friday that the attorney general had overstepped his authority"

The Kansas City Star reports today that "Kline's abortion charges derailed; A judge dismisses 30 counts filed by the attorney general against a Wichita doctor."

The Wichita Eagle reports that "Kline charges Tiller; Foulston intervenes."

The Topeka Capital-Journal reports that "Kline speaks out against dismissal of charges."

And The Lawrence Journal-World reports that "Soon as filed, charges against abortion doctor dismissed; Outgoing AG's actions criticized."
Posted at 11:50 PM by Howard Bashman



"Man arrested at Qwest resigns; Prosecutor was allegedly having sex": This article appears today in The Seattle Post-Intelligencer.
Posted at 11:45 PM by Howard Bashman


"Condemned killer claims innocence 25 years later": Reuters provides a report that begins, "Condemned killer Mumia Abu-Jamal isn't getting his hopes up. The former radio reporter who was convicted of murdering a Philadelphia policeman in 1981 is appealing his death sentence on grounds that his lawyer Robert Bryan says offer his best chance yet of a new trial."
Posted at 11:18 PM by Howard Bashman


"A Matter of Degrees: John Roberts is Taking His Time to Reshape the High Court." Tony Mauro will have this article (free access) in next week's issue of Legal Times.
Posted at 02:00 PM by Howard Bashman


"Judicial hopeful steps aside; Bush's nominee for 5th Circuit withdrawing amid criticism": The Clarion-Ledger of Jackson, Mississippi today contains an article that begins, "Jackson lawyer Michael Wallace said he will ask President Bush on Tuesday to withdraw his nomination to the the 5th U.S. Circuit Court of Appeals."
Posted at 11:25 AM by Howard Bashman


"Web error reveals censure of U.S. judge; In a rare move only inadvertently made public, action is urged against Manuel L. Real of L.A. for misconduct": Today in The Los Angeles Times, Henry Weinstein has an article that begins, "A judicial discipline council has voted overwhelmingly to impose sanctions on a veteran Los Angeles federal judge who improperly seized control of a bankruptcy case to protect a probationer he was supervising. But it is far from clear when, or even whether, the decision of the judicial council of the U.S. 9th Circuit Court of Appeals in San Francisco will become officially public."

The article goes on to report that "[t]he council's order was inadvertently posted for more than a week on the Internet by Thomson/West, a legal publishing service. Four legal scholars who reviewed the judicial council's opinion for The Times said the decision was well-grounded, and they expressed dismay that it had not been made public immediately."

I am attempting to obtain a copy of the decision so that I can post it online at "How Appealing."
Posted at 11:23 AM by Howard Bashman



"BALCO prosecutors urge jail for reporters; 18-month sentence sought for refusing to identify sources": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "Two Chronicle reporters acted 'in furtherance of crimes' in obtaining leaked grand jury transcripts of athletes testifying about steroids, and should be jailed for up to 18 months for not revealing the source of the transcripts, federal prosecutors told an appeals court Friday."
Posted at 11:20 AM by Howard Bashman


"Appeals Panel Cuts Award in Valdez Spill by Exxon": This article appears today in The New York Times.

Today in The San Francisco Chronicle, Bob Egelko reports that "Punitive damages in '89 Alaska spill cut nearly in half; Court rules Exxon's actions not malicious."

And The Anchorage Daily News reports today that "Exxon fine for oil spill is slashed on appeal; Punitive damages drop to $2.5 billion from $4.5 billion."
Posted at 11:18 AM by Howard Bashman



"'Lawyer' Accused of Doing a Little Too Much for a 'Client'": Adam Liptak has this article today in The New York Times.

And The Smoking Gun web site has an item headlined "Phony Lawyer In Jail Sex Ruse; Maryland woman impersonated attorney to orchestrate inmate tryst."

You can access my earlier coverage at this link.
Posted at 11:05 AM by Howard Bashman



Friday, December 22, 2006

Available online from law.com: An article reports that "Prisoners' Right to Internet Materials Contested; Bans on inmate mail generated from the Net are triggering lawsuits."

And the new installment of my "On Appeal" column is headlined "2006 Appellate Year in Review."
Posted at 09:28 PM by Howard Bashman



For the "Southern Appeal" blog, "The curtain closes": Details at this link.
Posted at 09:15 PM by Howard Bashman


"What Was Alberto R. Gonzales Thinking?: And what did Judge David Tatel write?" Jack Shafer has this Press Box essay online at Slate.
Posted at 06:00 PM by Howard Bashman


"Travelers Test Rules on Flying Without Identification": This audio segment (RealPlayer required) appeared on yesterday's broadcast of NPR's "Morning Edition." The segment refers to a related cert. petition (which you can access via this link) pending before the U.S. Supreme Court.
Posted at 05:10 PM by Howard Bashman


Another reason for Carter G. Phillips to drop the f-bomb? The U.S. Court of Appeals for the First Circuit today issued its ruling in Maine People's Alliance v. Mallinckrodt, Inc.

The First Circuit's opinion begins, "In the teeth of two decades of contrary precedent from four circuits, defendant-appellant Mallinckrodt, Inc. asks us to restrict the role of private citizens in the abatement of imminent and substantial threats to the environment and public health. In support of this entreaty, Mallinckrodt presents a gallimaufry of new, hitherto unconsidered arguments."

And the opinion ends, "Despite an impressive array of arguments, skillfully presented by extraordinarily able counsel, Mallinckrodt has not persuaded us that the plaintiffs lack standing to sue, that its cramped interpretation of RCRA § 7002(a)(1)(B) is what Congress had in mind, or that the district court acted outside the realm of its discretion in fashioning a remedy for the threatened harm. Consequently, we uphold the district court's rulings in all respects."
Posted at 04:05 PM by Howard Bashman



"Charges Against Kan. Abortion Doc Dumped": The Associated Press provides a report that begins, "Kansas' attorney general, a vocal abortion opponent, charged a well-known abortion provider with illegally performing late-term abortions, but a Sedgwick County judge on Friday threw out the charges after less than a day."
Posted at 03:14 PM by Howard Bashman


Corporations don't have sex lives, nor do they have a federal constitutional right to facilitate their customers' rights to engage in consensual homosexual sex acts: A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today rejected due to lack of standing an appeal taken by a Phoenix-based gay men's social club that was seeking to assert a constitutional challenge to a city ordinance prohibiting the operation of "live sex act" businesses. You can access today's ruling at this link.
Posted at 01:45 PM by Howard Bashman


Ninth Circuit orders reduction in Exxon Valdez punitive damages from $4.5 billion to $2.5 billion: Now both sides can claim victory, as it's not every day that a defense lawyer can save his client $2 billion, nor is it every day that a plaintiff's lawyer can have even a $2.5 billion punitive damages verdict upheld on appeal. You can access today's ruling by a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit at this link. The dissenting judge would have affirmed the entire $4.5 billion punitive damages award at issue in today's decision.

Update: In early news coverage, David Kravets of The Associated Press reports that "Court Cuts Valdez Judgment Against Exxon."

And Bloomberg News reports that "Exxon Valdez Oil Spill Damages Reduced by Almost Half."
Posted at 01:35 PM by Howard Bashman



D.C. Circuit Judge Brett M. Kavanaugh issues recusal-related opinion: In a short opinion issued today, Judge Kavanaugh explains why he denied a motion to recuse from hearing a case involving the "Softwood Lumber" dispute between the United States and Canada.

Also today, a three-judge D.C. Circuit panel issued a decision on the merits of the case, and Judge Kavanaugh was the author of the court's majority opinion.
Posted at 11:25 AM by Howard Bashman



"Indians lose state Supreme Court ruling; Justices narrowly back a political watchdog agency's lawsuit against a Palm Springs-area tribe over campaign law violations despite their sovereign immunity": Today in The Los Angeles Times, Maura Dolan has an article that begins, "A divided California Supreme Court ruled Thursday that Indian tribes can be sued for violating the state's campaign disclosure law even though tribes enjoy sovereign immunity under federal law. The 4-3 ruling is unprecedented and may be appealed to the U.S. Supreme Court, which has consistently protected Indian immunity from lawsuits."

Today in The San Francisco Chronicle, Bob Egelko has an article headlined "Ruling on campaign disclosure; Tribes can be sued for late gift reports."

And Claire Cooper, legal affairs writer for The Sacramento Bee, has an article headlined "Tribal immunity rejected in political-funding case."

You can access yesterday's 4-3 ruling of the Supreme Court of California at this link.
Posted at 08:24 AM by Howard Bashman



"Ruling weakens law's limits on corporate political ads": David G. Savage has this article today in The Los Angeles Times.

The New York Times reports today that "Court Overturns Limits on Political Ads, Part of the Campaign Finance Law."

The Washington Post reports that "Issue Advocacy Ads May Run During an Election, Three-Judge Court Rules."

The Washington Times reports that "Issue ads allowed in election run-up."

And at his "Election Law" blog, Law Professor Rick Hasen has a post titled "Court Adopts 'See No Evil' Approach in Campaign Finance Case; Major Changes Could Be on the Horizon."

You can access yesterday's ruling by a three-judge U.S. District Court for the District of Columbia at this link.
Posted at 08:20 AM by Howard Bashman



"Married names for grooms: Husbands have too hard a time adopting their wives' last names." The Los Angeles Times contains this editorial today.
Posted at 08:10 AM by Howard Bashman


"Gays get marriage without the name; Corzine signs bill creating civil unions": This article appears today in The Newark (N.J.) Star-Ledger. In addition, the newspaper contains an editorial entitled "One step forward for gays."

And The Philadelphia Inquirer reports today that "N.J. takes step with civil unions; Gov. Corzine made them official for gay couples; Advocates predicted state marriage rights would not be far behind."
Posted at 08:00 AM by Howard Bashman



"Media-Sourcing Debate on Deck at Capitol; Congress Is Likely to Revisit Calls for Federal Shield Law As Baseball Case Culminates": Jess Bravin and Sarah Ellison have this article (free access) today in The Wall Street Journal.
Posted at 07:48 AM by Howard Bashman


"The Israeli Supreme Court Rules on 'Targeted Killings'": Joanne Mariner has this essay online today at FindLaw.

My earlier coverage appears here and here.
Posted at 07:30 AM by Howard Bashman



Thursday, December 21, 2006

"Senator Brownback and the Judge": The New York Times on Friday will contain an editorial that begins, "If most people were asked to list the qualities they want in a federal judge, few would include 'has not attended a same-sex commitment ceremony.' But that was the outrageous litmus test that Senator Sam Brownback, Republican of Kansas, applied to Janet Neff, whose nomination he has been blocking."
Posted at 11:59 PM by Howard Bashman


"SJC role in gay marriage vote argued; Plaintiffs want legislators guided": This article appears today in The Boston Globe.

And The Republican of Springfield, Massachusetts reports today that "Gay marriage lawsuit argued."
Posted at 11:58 PM by Howard Bashman



"Sullivan Will Voluntarily Testify Before Judiciary Committee": Lynne Tuohy of The Hartford Courant provides a news update that begins, "Former Chief Justice William J. Sullivan has reversed his stance and said he will voluntarily testify before the legislature's Judiciary Committee about his withholding release of a controversial ruling on access to the courts."
Posted at 11:57 PM by Howard Bashman


"'Ask the Author' with David Stras": Law Professor David Stras, whose law review articles and Minnesota Public Radio appearances I've occasionally noted here in the past, is participating in this question-and-answer session at "SCOTUSblog."
Posted at 11:55 PM by Howard Bashman


Who knew that being an attorney was a free pass to sex with inmates? The Baltimore Examiner today contains an article headlined "Investigators: Woman fakes attorney pass for inmate sex."

And The Associated Press reports that "Woman Allegedly Steals ID for Inmate Sex."

At least this time, it's not a real lawyer who's accused of hanky panky with a prisoner.
Posted at 11:48 PM by Howard Bashman



Available online from law.com: An article reports that "Calif. High Court Takes Up Recusals Over Film, Book."

In other news, "After Shooting, Firms Think of Security; Wariness expressed over certain type of client."

Shannon P. Duffy reports that "Test Taker Sues to Gain More LSAT Time."

And Lawrence Savell has an essay entitled "Is Your Blog Exposing You to Legal Liability?"
Posted at 11:40 PM by Howard Bashman



Programming note: During the day today, I will be away from the office meeting with co-counsel to finalize a Brief for Appellants due to be filed today in an appeal pending in the Superior Court of Pennsylvania. Earlier media coverage of that case can be accessed here.

Additional posts will appear here later today.
Posted at 08:35 AM by Howard Bashman



Petition for writ of certiorari filed in grandparent visitation case: Yesterday, with the invaluable assistance of the University of Virginia School of Law's Supreme Court Litigation Clinic, a petition for writ of certiorari was filed in the U.S. Supreme Court presenting the following question over which state courts of last resort are profoundly divided:
Whether the Fourteenth Amendment's Due Process Clause is violated when a court orders grandparent visitation over a fit parent's objection, where the grandparent has not proved by clear and convincing evidence that such an order is necessary to prevent harm or potential harm to the child.
This is the case in which a client of mine was on the losing side before the Supreme Court of Pennsylvania. You can access the Pa. Supreme Court's opinions in that case via this link, while related earlier press coverage from Joan Biskupic of USA Today can be accessed here.

The cert. petition itself can be accessed at this link. Let me thank Mark T. Stancil, Law Professor Daniel R. Ortiz, David T. Goldberg, and UVA law students Andrew Carlon, Lisa Kinney, and Matt Madden for their tremendous work resulting in yesterday's court filing.

Update: The Supreme Court has docketed the case at No. 06-863. Respondent's brief in opposition is currently due on or before January 22, 2007.
Posted at 08:33 AM by Howard Bashman



"State high court to review same-sex marriage ban": Maura Dolan has this article today in The Los Angeles Times.

Today in The San Francisco Chronicle, Bob Egelko reports that "Marriage law goes to high court; State Supreme Court sets aside appellate ruling on same-sex issue, agrees to hear arguments."

In The Sacramento Bee, legal affairs writer Claire Cooper has an article headlined "Review for gay marriage; High court moves quickly in agreeing to study state's ban."

Josh Richman of The Oakland Tribune reports that "State Supreme Court takes gay marriage cases."

And The San Jose Mercury News contains an article headlined "Next step for gay marriage; State Supreme Court agrees to weigh whether ban violates civil rights."
Posted at 08:20 AM by Howard Bashman



"High court may take up question of Scouts' religious status; Ninth U.S. Circuit requests state review of federal case involving San Diego's $1-a-year lease of parkland to group": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 08:15 AM by Howard Bashman


"N.J. Gov. to Make Gay Unions Official": The Associated Press provides this report.
Posted at 08:14 AM by Howard Bashman


"Judge Questiions the FCC's Right To Police Network Television": Joseph Goldstein has this article today in The New York Sun.

And today in The New York Daily News, David Bianculli, that newspaper's television critic, has an essay entitled "F-bombs away at FCC wrangle."

You can access my earlier coverage of yesterday's Second Circuit oral argument at this link.
Posted at 08:05 AM by Howard Bashman



Wednesday, December 20, 2006

Available online from law.com: Marcia Coyle has an article headlined "For a High Court Battle, Two Words: Get Carter."

And in other news, "Ga. Lawyer Upbeat on Evolution Deal."
Posted at 11:22 PM by Howard Bashman



"Inviting A Federal Judge to A Seminar? You May Have to Report It." The Administrative Office of the U.S. Courts issued this news release yesterday. Also available online are FAQs and the text of the applicable Judicial Conference Policy.
Posted at 10:23 PM by Howard Bashman


"Best Law Blog (2006)": Congratulations to "The Volokh Conspiracy," which is the well-deserved winner of this honor in The 2006 Weblog Awards.

And thanks to everyone who voted for "How Appealing" in that contest, enabling this blog to achieve second place.
Posted at 10:15 PM by Howard Bashman



"Manchin not entitled to immunity, U.S. court rules": The West Virginia Record provides a news update that begins, "The United States Fourth Circuit Court of Appeals said Wednesday that Gov. Joe Manchin is not entitled to immunity in a suit brought against him by Massey Energy CEO Don Blankenship, affirming an earlier District Court ruling."

And The Associated Press reports that "Massey CEO wins procedural round in lawsuit against Manchin."

You can access today's ruling of the U.S. Court of Appeals for the Fourth Circuit at this link.
Posted at 08:15 PM by Howard Bashman



Chief Judge Easterbrook versus Circuit Judge Posner: Are you, like me, of the belief that any decision in which Frank H. Easterbrook or Richard A. Posner dissents from the other's opinion of the U.S. Court of Appeals for the Seventh Circuit is likely to be worth a look? If so, you won't want to miss this decision that the Seventh Circuit issued today.

The context of today's case is as follows. The U.S. Supreme Court has ruled that a governmental official who is being sued has the right to appeal from a federal district court's denial of the qualified immunity defense at both the pleadings stage and at the summary judgment stage. In an earlier case, the Seventh Circuit ruled that where a federal district court denied two summary judgment motions filed by the same defendant asserting qualified immunity, the defendant cannot appeal from the second ruling because he should have appealed from the first.

In today's case, the defendant asserted a qualified immunity defense at both the pleadings stage and the summary judgment stage, but at the summary judgment stage the defendant's argument in support of qualified immunity did not differ either factually or legally from the argument made at the judgment on the pleadings stage. Because the defendant did not appeal from the district court's denial of qualified immunity at the pleadings stage, the majority today holds that he cannot appeal from the denial of qualified immunity at the summary judgment stage, which is what the defendant was seeking to do in the case decided today.

Although the majority, in an opinion by Chief Judge Easterbrook, questions the soundness of the earlier decision, it views itself as bound by the outcome of that case here. Judge Posner, in dissent, concludes that the earlier decision does not dictate the outcome here, and therefore he would consider today's appeal on the merits. I think I agree with Judge Posner's dissent.
Posted at 08:00 PM by Howard Bashman



"Nudity law is struck down; The adult industry scores a victory; The law would have affected several clubs in KC": This article appears today in The Kansas City Star.

And The Associated Press provides a report that begins, "The Missouri Supreme Court struck down a state law Tuesday barring nude dancing and touching between strippers and customers."

You can access yesterday's ruling of the Supreme Court of Missouri at this link.
Posted at 07:25 PM by Howard Bashman



"The Lessons and Lasting Importance of Defeating the Nuclear Option": Ralph G. Neas, president, People For the American Way Foundation, issued this statement today.
Posted at 07:20 PM by Howard Bashman


"Judges Quiz Lawyer on FCC Indecency Rule": The Associated Press provides a report that begins, "Federal appeals judges Wednesday challenged a government lawyer over the Federal Communications Commission's tough new policy against accidental use of profanities in broadcasts."

WSJ.com's "Washington Wire" blog provides a post titled "C-SPAN’s Potty-Mouth Broadcast" that asks, "How often does noted Supreme Court specialist Carter Phillips get to drop the f-bomb (and worse) in open court?"

At CNN.com, Jeffrey Toobin reports that "Attorney argues FCC rules on profanity unfair."

Bloomberg News reports that "Fox TV Asks Court to Throw Out FCC's Indecency Policy."

MarketWatch reports that "Federal court grills FCC in Fox TV indecency case."

And Broadcasting & Cable provides a report headlined "Views Vary on Oral Argument." According to this report, "the judges may have been reluctant to swear in court, but Fox attorney Carter Phillips said 'fuck' and 'fucking' and 'shit' almost immediately in outlining the case, as if to get the words out, on the table and unabashedly part of the conversation."

You can access audio and video of attorney Carter G. Phillips's profanity-laden oral argument presented today before a three-judge panel of the U.S. Court of Appeals for the Second Circuit by clicking here (RealPlayer required) via C-SPAN.
Posted at 07:05 PM by Howard Bashman



"State's top court agrees to review same-sex marriage ruling": Bob Egelko of The San Francisco Chronicle provides this news update.

And David Kravets of The Associated Press reports that "Calif. High Court Reviewing Gay Marriage."
Posted at 07:00 PM by Howard Bashman



Programming note: During the day today, I will be away from the office meeting with co-counsel to finalize a Brief for Appellants due to be filed tomorrow in an appeal pending in the Superior Court of Pennsylvania. Earlier media coverage of that case can be accessed here.

Also today, thanks to the hard work of of the students and faculty members of the University of Virginia Law School's Supreme Court Litigation Clinic, a petition for writ of certiorari is being filed in the grandparent visitation case in which my client was on the losing side before the Supreme Court of Pennsylvania. You can access the rulings in that case via this link, while related press coverage from Joan Biskupic of USA Today can be accessed here. I'll post a copy of the cert. petition online sometime soon.

Additional posts will appear here later today.
Posted at 06:48 AM by Howard Bashman



"Md. executions halted; State court finds procedures established improperly": This article appears today in The Baltimore Sun.

Today in The New York Times, Adam Liptak reports that "Highest Court in Maryland Suspends Executions."

And The Washington Post reports that "Maryland High Court Calls Halt to Executions; Lethal Injection Blocked Over Procedural Issue."
Posted at 06:38 AM by Howard Bashman



"Cobb gives up on evolution book stickers; School board settles lawsuit that brought national limelight over disclaimers": The Atlanta Journal-Constitution contains this article today.

And The Los Angeles Times reports today that "Evolution warnings don't stick."
Posted at 06:35 AM by Howard Bashman



"Court orders FERC to review electricity pacts; The federal ruling on contracts signed by the state in 2001 could reap $1.4 billion in refunds or credits for ratepayers": This article appears today in The Los Angeles Times.

And The New York Times reports today that "Court Says U.S. Oversight of Power Industry Was Lax."

You can access yesterday's rulings of the U.S. Court of Appeals for the Ninth Circuit both here and here.
Posted at 06:32 AM by Howard Bashman



"Bush appointees signal court's new direction; Chief Justice Roberts and Justice Alito appear ready to steer bench to the right; affirmative action, abortion issues could see big impact": Joan Biskupic has this article today in USA Today.
Posted at 06:20 AM by Howard Bashman


"TV Profanity Will Go Before Appeals Judges": Joseph Goldstein has this article today in The New York Sun.
Posted at 06:15 AM by Howard Bashman


"The Supreme Court Rules that California's Upholding a Conviction, Despite Family Members' Wearing Buttons Bearing the Victim's Picture in the Courtroom, Did Not Violate Its Clearly Established Precedent": Vikram David Amar has this essay online today at FindLaw.
Posted at 06:14 AM by Howard Bashman


Tuesday, December 19, 2006

"Maryland High Court Calls Halt to Executions; Lethal Injection Blocked Over Procedural Issue": This article will appear Wednesday in The Washington Post. My earlier coverage is at this link.
Posted at 10:10 PM by Howard Bashman


"Governor demands changes in lethal injection protocol; The mandate comes in response to a judge's ruling that the procedure violates the Constitution": Henry Weinstein has this article today in The Los Angeles Times.

Today in The San Jose Mercury News, Howard Mintz reports that "Execution reforms ordered; Governor focuses on flaws mentioned in judge's decision."

The Sacramento Bee reports that "State seeks new plan for lethal injections; Responding to judge, governor wants improved training for executions."

And The San Francisco Chronicle reports that "Governor acts to save method of execution." In addition, columnist Debra J. Saunders has an op-ed entitled "Death penalty received no death blow."
Posted at 10:08 PM by Howard Bashman



A fine ruling on panhandling from New York State's highest court: The Associated Press reports that "Top NY court upholds fines for some panhandling." You can access today's ruling of the Court of Appeals of New York at this link.
Posted at 06:00 PM by Howard Bashman


Today's rulings of note from the U.S. Court of Appeals for the Seventh Circuit: In a federal criminal appeal in which the appendix was wholly insufficient, the court today ordered counsel for the defendant-appellant to show cause why a sanction of $1,000 should not be assessed.

And in a second criminal case decided today, Chief Judge Frank H. Easterbrook provides an interesting discussion of the risk of misidentification when the victim is asked to identify the perpetrator using a lineup. Today's decision describes an even better method than a lineup -- "the repeated sequential display."
Posted at 05:00 PM by Howard Bashman



This would appear to be a fact rather than a theory -- "Textbook stickers on evolution out in Cobb": The Atlanta Journal-Constitution provides a news update that begins, "The Cobb County School board has agreed to settle the long-running legal fight over its 2002 decision to place anti-evolution stickers in high school biology textbooks."

And The Associated Press reports that "Ga. School District Abandons Stickers."

The U.S. Court of Appeals for the Eleventh Circuit ordered further federal district court proceedings in this case in a ruling issued in May 2006. My coverage of that ruling can be accessed here.
Posted at 04:35 PM by Howard Bashman



A job applicant's failure to meet the job's objective qualifications does not disqualify her from bringing a gender discrimination claim if the male hired to perform the job also did not meet the job's objective qualifications: A unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit issued this decision today. The ruling states, "We must decide whether an employer that hires someone who lacks a job posting's objective qualifications can point to the absence of those same qualifications in another applicant as a basis for declining to hire that second applicant. We hold that it cannot, and in so doing conclude that Scheidemantle established a prima facie case of discrimination."
Posted at 02:40 PM by Howard Bashman


"Brownback Wants to Re-Question Nominee": The Associated Press provides a report that begins, "Sen. Sam Brownback, who wants to champion social conservatives in the presidential race, said Tuesday he wants a Senate panel to re-question a judicial nominee who attended a same-sex union ceremony. Brownback, a Kansas Republican, said he wants Michigan state judge Janet Neff to testify about her role in the 2002 Massachusetts ceremony, her legal views on same-sex unions and her ability to be impartial if called upon to rule on such cases."

As I noted in this post from last night, in today's edition of The New York Times, Neil A. Lewis has an article headlined "Senator Removes His Block on Federal Court Nominee."
Posted at 02:28 PM by Howard Bashman



"The 4th Circuit": The Washington Times today contains an editorial that begins, "Change is coming to a pillar of American constitutionalist jurisprudence. The 4th Circuit Court of Appeals in Richmond, widely regarded as the most conservative federal appellate court in the country and the site of Judges Terrence W. Boyle's and William J. Haynes II's confirmation battles, could soon be one-third vacant."
Posted at 02:07 PM by Howard Bashman


"Court orders lethal injection review; Ruling could lead to changes in state's death penalty procedures": The Baltimore Sun provides a news update that begins, "Maryland's highest court today ruled that state law requires prison officials to submit their lethal injection procedures to public input -- a decision that could lead to changes in how prisoners are put to death here."

You can access today's lengthy ruling of the Court of Appeals of Maryland -- that State's highest court -- at this link.

Coincidentally, today's print edition of The Baltimore Sun contains an article headlined "O'Malley awaits court action on lethal injection; Gov.-elect says he'll obey state law despite personal opposition to capital punishment."
Posted at 02:00 PM by Howard Bashman



"Judge: Sentence is too mild for mom who rented daughter to pedophile." The St. Louis Post-Dispatch today contains an article that begins, "A St. Louis woman who rented her 9-year-old daughter to a Granite City pedophile more than 200 times deserves more than 10 years in prison, a federal appeals court said Monday in overturning her sentence for a second time."

You can access yesterday's ruling of the U.S. Court of Appeals for the Eighth Circuit at this link.
Posted at 01:55 PM by Howard Bashman



"Wily 'court jester' is a frequent case-winner; Attorney Sy Gaer's courtroom antics are legendary, but the aging veteran of the defense is also known for his legal skills": This interesting article appears today in The Miami Herald.
Posted at 08:42 AM by Howard Bashman


"Terror suspect Padilla to undergo mental testing; A federal judge ordered the Bureau of Prisons to do a psychiatric evaluation of terror defendant Jose Padilla to determine whether he can stand trial": The Miami Herald contains this article today.

And The South Florida Sun-Sentinel reports today that "Terror suspect Padilla to get psychiatric exam; Attorney says client suffers post-traumatic stress syndrome."
Posted at 08:40 AM by Howard Bashman



"Suit says Haidl lawyer is still awaiting payment; Aggressive attorney in O.C. sexual-assault case says his former friend has yet to pay him more than $1 million to defend his son": This article appears today in The Los Angeles Times.
Posted at 08:35 AM by Howard Bashman


"Kan. Inmate Charged With Mailing Bomb To Va. Court": The Washington Post today contains an article that begins, "A prisoner at the famed high-security Leavenworth prison was charged yesterday with fashioning a letter bomb and mailing it to the federal courthouse in Richmond, authorities said." According to the article, "It was sent to the offices of the U.S. Court of Appeals for the 4th Circuit and addressed to the clerk but was diverted to a basement mailroom and later detonated by police, authorities said. No one was injured."

And The Richmond Times-Dispatch reports today that "Prisoner indicted in bomb case."
Posted at 08:30 AM by Howard Bashman



Teacher exiled to Canada after committing sex offense in Buffalo, New York is deported back to the United States: Canadian Press reports that "U.S. sex offender ordered deported from Canada."

And The Toronto Sun reports that "Deport order heard."
Posted at 08:20 AM by Howard Bashman



"Georgia Man Fights Conviction as Molester": The New York Times today contains an article that begins, "Genarlow Wilson, 20, is serving a prison sentence that shocked his jury, elicited charges of racism from critics of the justice system and that even prosecutors and the State Legislature acknowledge is unjust. He was sentenced to 10 years in prison without parole for having consensual oral sex with a 15-year-old girl at a New Year’s Eve party, an offense that constituted aggravated child molesting, even though Mr. Wilson himself was only 17."

And The Atlanta Journal-Constitution today contains an editorial entitled "Order justice under righted sex law."

My earlier coverage appears at this link. This matter was also discussed yesterday at "The Volokh Conspiracy" and "Sentencing Law and Policy."
Posted at 08:07 AM by Howard Bashman



"Justice Department Heads Off Legal Battle With ACLU": Josh Gerstein has this article today in The New York Sun.

And today in The Washington Post, Robert Barnes reports that "For ACLU, A Victory In Standoff With U.S."
Posted at 07:58 AM by Howard Bashman



"A Federal Court of Appeals Revives a Class Action Seeking Compensation for Slavery in America": Anthony J. Sebok has this essay online at FindLaw.
Posted at 07:55 AM by Howard Bashman


Monday, December 18, 2006

In Tuesday's edition of The New York Times: Neil A. Lewis will have an article headlined "Senator Removes His Block on Federal Court Nominee" that begins, "Senator Sam Brownback of Kansas, who blocked the confirmation of a woman to the federal bench because she attended a same-sex commitment ceremony for the daughter of her long-time neighbors, says he will now allow a vote on the nomination."

Adam Liptak will have an article headlined "Prosecutors Drop A.C.L.U. Subpoena in Document Fight."

And an article will report that "Inquiry Falters on Civilians Accused of Detainee Abuse."
Posted at 11:40 PM by Howard Bashman



"Gov. wants death penalty procedure corrected": Henry Weinstein of The Los Angeles Times provides this news update.

Howard Mintz of The San Jose Mercury News provides an update headlined "Schwarzenegger orders prison officials to fix execution problems."

And The San Francisco Chronicle provides a news update headlined "Governor acts to save method of execution."
Posted at 11:35 PM by Howard Bashman



"Mich. to Delay Affirmative Action Ban": The Associated Press provides a report that begins, "Michigan's three top-tier universities can continue using race and gender in admissions and financial aid awards through the current admission cycle, under an agreement proposed Monday."
Posted at 09:58 PM by Howard Bashman


"The Jury Snub: A conservative form of judicial activism." Seth Rosenthal has this jurisprudence essay online at Slate.
Posted at 07:40 PM by Howard Bashman


"Court to Hear Broadcast Indecency Case": The Associated Press provides a report that begins, "A federal appeals court in New York will hear arguments Wednesday over whether the government's decisions on what constitutes indecent speech violates the First Amendment rights of broadcasters."
Posted at 06:12 PM by Howard Bashman


Eligibility for leave under the Family and Medical Leave Act depends in part on an employee's having been employed by the employer "for at least 12 months": Today a three-judge panel of the U.S. Court of Appeals for the First Circuit resolves a question of first impression under the FMLA -- "whether and under what circumstances an employee who has had a break in service may count previous periods of employment with the same employer toward satisfying this 12-month requirement."

In the case decided today, the employee worked as a car salesman for the employer for five years. Thereafter, for the next five years, the employee did not work for the employer. Next, the employee was rehired by the employer, and seven months later sought to take FMLA leave. The First Circuit holds, thanks in large measure to an amicus brief from the U.S. Department of Labor, that the employee on these facts has satisfied the FMLA's requirement of having been employed by the employer "for at least 12 months"
Posted at 05:10 PM by Howard Bashman



"Myers' winding road to 9th Circuit takes final turn": This editorial appeared last Thursday in The Times-News of Twin Falls, Idaho. The editorial begins, "Call it Lesson One for the new U.S. Senate minority: Choose your battles wisely, and avoid battles that you've already lost. President Bush's dogged determination to put two conservative judges on the 9th Circuit Court of Appeals from Idaho is all well and good from this side of the Continental Divide. But the president's nomination of Boise lawyer William G. Myers III to the San Francisco-based court appears to be on a road to nowhere."
Posted at 04:30 PM by Howard Bashman


"U.S. Supreme Court to Consider Eminent Extortion Case for Review; Developer Demanded $800,000 or Village Would Take Property; Property Owners Refused, Village Condemned Land Next Day": The Institute for Justice issued this news release today. Additional information, including the cert. petition and some amicus briefs, can be accessed via this link.
Posted at 03:54 PM by Howard Bashman


"By what standard do we review a district court's determination that a defendant's sentence would not have been materially different, had it known that the Guidelines were advisory rather than mandatory?" That issue today divides a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. Circuit Judge Alex Kozinski wrote the majority opinion, in which Circuit Judge Richard C. Tallman joined. Circuit Judge Marsha S. Berzon dissented, arguing that the standard of review that the majority adopted was too deferential.
Posted at 02:35 PM by Howard Bashman


"Fenced In: At Guantanamo, Even 'Easy' Cases Have Lingered; Balky Intelligence Agencies, War-Torn Crime Scene Hinder Legal Process; Maj. Groharing's Village Hunt." Jess Bravin has this front page article (pass-through link) today in The Wall Street Journal.
Posted at 02:18 PM by Howard Bashman


"The Supreme Court Smacks the Ninth: And the Los Angeles Times smacks them again." The pseudonymous "Jack Dunphy" has this essay today at National Review Online.
Posted at 12:58 PM by Howard Bashman


Case challenging the Boy Scouts of America's leases of land from the City of San Diego causes the U.S. Court of Appeals for the Ninth Circuit to certify questions to the Supreme Court of California: You can access today's Ninth Circuit certification order at this link. Circuit Judge Andrew J. Kleinfeld dissents from the majority's conclusion that the plaintiffs have standing under Article III, and would therefore dismiss the case, but otherwise concurs in the certification. The federal district court decision that is the subject of today's ruling can be accessed here.
Posted at 12:54 PM by Howard Bashman


"Legal skeletons in your closet may go online; Pre-conviction information available Jan. 1": The Pittsburgh Post-Gazette today contains an article that begins, "Be advised, say employment attorneys and privacy advocates: With new rules allowing the public instant online access to your Pennsylvania court records, that youthful indiscretion or mistaken arrest may no longer be relegated to dusty file folders in your county courthouse, forgotten and, for all practical purposes, invisible."
Posted at 12:44 PM by Howard Bashman


U.S. Court of Appeals for the Federal Circuit holds that federal law enforcement officers are not entitled to compensation from the government for the time they spend commuting to and from work in government-owned police vehicles: You can access today's ruling at this link.
Posted at 12:05 PM by Howard Bashman


"A Georgia case calling for executive clemency?" At his "Sentencing Law and Policy" blog, Law Professor Doug Berman has this post discussing a case from Georgia involving consensual sodomy between two underage teens that I discussed here earlier today.
Posted at 10:30 AM by Howard Bashman


Why settle for a blog merely about drug law or device law, when you can have two for the price of none? Via "Adam Smith, Esq." I learned recently of the blog "Drug and Device Law," covering "various topics that arise in the defense of pharmaceutical and medical device product liability litigation." Even if you aren't interested in the topics of FDA preemption, proposed amendments to CAFA, or class action notice, you can nevertheless marvel at the blog's amazing "Disclaimer and Terms of Use."
Posted at 10:24 AM by Howard Bashman


"The terrorist you've never heard of: Unlike alleged al-Qaida terrorist Jose Padilla, right-wing 'dirty bomber' Demetrius Crocker was investigated and prosecuted the old-fashioned constitutional way." Alex Koppelman has this article today at Salon.com.
Posted at 10:00 AM by Howard Bashman


"Former U.S. Detainee in Iraq Recalls Torment": According to a lengthy article published today in The New York Times, "The detainee was Donald Vance, a 29-year-old Navy veteran from Chicago who went to Iraq as a security contractor."
Posted at 09:58 AM by Howard Bashman


"U.S. Military Rehearses Terror Hearings": The Associated Press provides a report that begins, "The U.S. military is rehearsing for hearings on whether 14 top terror suspects can be held indefinitely without charge as enemy combatants, but defense lawyers say the outcome is preordained."
Posted at 09:50 AM by Howard Bashman


"Gift Ideas for the Appellate Lawyer on Your Holiday Shopping List": That's the headline of this week's installment of my "On Appeal" column for law.com.

Meanwhile, subscribers to the Washington, DC-based Legal Times will be able to see in newsprint this week my "On Appeal" column from two weeks ago, under the headline "Your Computer, Your Porn: Courts Misapply Meaning of Possession."
Posted at 08:32 AM by Howard Bashman



"Demystifying the Implications of U.S. Supreme Court Appointments": The Stanford Graduate School of Business has issued this news release about a research paper by Professor Keith Krehbiel entitled "Supreme Court Appointments as a Move-the-Median Game."
Posted at 08:30 AM by Howard Bashman


"Justices weighing Portage case; Ohio court hears arguments on criminality of computer-generated child porn": The Associated Press provides this report.

And The Ravenna Record-Courier last week published an article headlined "A right to view kiddie porn? Portage case before Ohio Supreme Court."

The Ohio Supreme Court's summary of the case is titled "Are Provisions of Ohio Child Pornography Law Unconstitutionally Vague and Overbroad?" Once that court posts online the archived oral argument video in the case, you will be able to access it via this link.
Posted at 08:25 AM by Howard Bashman



"Supreme Court relaxes rules on hearsay evidence": Friday's issue of The Toronto Globe and Mail contained this article reporting on a decision that the Supreme Court of Canada issued on Thursday.
Posted at 08:17 AM by Howard Bashman


"Former playmate at SF court in dispute over late husband's estate": The Associated Press on Friday provided this report.
Posted at 08:11 AM by Howard Bashman


"I am very sympathetic to Wilson's argument regarding the injustice of sentencing this promising young man with good grades and no criminal history to ten years in prison without parole and a lifetime registration as a sexual offender because he engaged in consensual oral sex with a 15-year-old victim only two years his junior": So wrote Justice Carol W. Hunstein of the Supreme Court of Georgia Friday in an opinion concurring in that court's order denying reconsideration of a case in which a 17-year-old boy was sentenced to ten years' imprisonment without possibility of parole for aggravated child molestation based upon a consensual act of oral sodomy performed on him by his 15-year-old girlfriend.

The Associated Press reports that "Ga. Supreme Court rejects teen's appeal in sex case."

And yesterday, The Atlanta Journal-Constitution published an article headlined "Hunstein spent lifetime punching back."
Posted at 08:04 AM by Howard Bashman



"Supreme Court: 45% Have Favorable Opinion; 20% Report No Opinion of Country’s Highest Court." Rasmussen Reports provides this summary of the results of one of its recent opinion polls.
Posted at 07:54 AM by Howard Bashman


"Army subpoenas journalists over officer's quotes": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "Army prosecutors have sent subpoenas to journalists in Oakland and Honolulu demanding testimony about quotes they attributed to an officer who faces a court-martial after denouncing the war in Iraq and refusing to deploy with his unit."
Posted at 07:45 AM by Howard Bashman


"Give habeas a chance: Although it failed to pass the Senate in September, a measure letting enemy combatants challenge their detention is back in a new bill." This editorial appears today in The Los Angeles Times.
Posted at 07:44 AM by Howard Bashman


"Scalia Tells Group What It 'Ought to Hear'": In today's edition of The Washington Post, Robert Barnes has an article that begins, "The most obvious question about Supreme Court Justice Antonin Scalia's appearance before the Northern Virginia Technology Council last week was: What was he doing there?"
Posted at 06:48 AM by Howard Bashman


"Conservatives' Grip on Key Virginia Court Is at Risk": The Washington Post today contains a front page article that begins, "A growing list of vacancies on the federal appeals court in Richmond is heightening concern among Republicans that one of the nation's most conservative and influential courts could soon come under moderate or even liberal control, Republicans and legal scholars say."
Posted at 06:45 AM by Howard Bashman


"The Midas Touch": Today in The New York Times, Marc Maurer has an op-ed that begins, "In a ruling in a lawsuit last month, Judge James Robertson of Federal District Court said that United States currency discriminates against blind people because bills are all the same size and cannot be distinguished by touch."
Posted at 06:40 AM by Howard Bashman


"Executions drop as states debate lethal injection; Some see decline as temporary; others say death penalty is fading": This article appears today in USA Today.
Posted at 06:35 AM by Howard Bashman


Available online from FindLaw: Michael C. Dorf has an essay entitled "The Bush Administration Wins a Round on Military Commissions, But the District Court Ruling May Have a Silver Lining for Detainees."

And Austin Sarat has an essay entitled "When Executions Go Wrong: A Horribly Botched Florida Killing Adds Strong Impetus to a National Reconsideration of Capital Punishment."
Posted at 06:32 AM by Howard Bashman



"Blawg Review #88": Available here, at "HealthBlawg."
Posted at 06:28 AM by Howard Bashman


Sunday, December 17, 2006

In Monday's edition of The Christian Science Monitor: The newspaper will contain an article headlined "New twist on government control of data: use of subpoenas; Justice officials have asked a court to make the ACLU return a classified document; Is too much kept secret?"

And in other news, "The YouTube world opens an untamed frontier for copyright law."
Posted at 05:55 PM by Howard Bashman



"A dangerous attack on leaks": The Chicago Tribune contains this editorial today.

In addition, Law Professor Geoffrey R. Stone has an op-ed entitled "Secrecy, the enemy of democracy."
Posted at 02:04 PM by Howard Bashman



"Padilla terror case gets closer look; His lawyers, alleging abuse, want him freed; A judge may hold the first such hearing on the treatment of detainees": This article appears today in The Los Angeles Times.
Posted at 01:45 PM by Howard Bashman


"Offering Support for a Menorah, Unofficially": The New York Times today contains an article that begins, "For the second year in a row, this normally serene university town at the eastern base of the Rocky Mountains is embroiled in a dispute over holiday symbols. The controversy, similar to recent wrangling over Christmas trees at Seattle-Tacoma International Airport, centers on the refusal by Fort Collins to allow a menorah to be displayed downtown during Hanukkah, near a Christmas tree and other Christmas displays."
Posted at 01:10 PM by Howard Bashman


"Unfinished Business: The departing Republican Congress has left the new Democratic majority much urgent, unfinished business to restore due process, civil liberties and the balance of powers." This editorial appears today in The New York Times.
Posted at 01:05 PM by Howard Bashman


"BeldarBlog" analyzes the Fifth Circuit's recent splintered holding in the case challenging opening prayers at Tangipahoa Parish (Louisiana) School Board meetings: You can access Beldar's post at this link. My earlier coverage appears here.

Elsewhere, The Times-Picayune of New Orleans reports today that "Board prayer improper, judges say; But nonsectarian one may work."

And The Associated Press reports that "Court opens door for nonsectarian prayer at Tangi school board."
Posted at 01:00 PM by Howard Bashman



Bob Egelko is reporting: Today in The San Francisco Chronicle, he has an article headlined "With lethal injection halted, all eyes on governor."

And yesterday he had an article headlined "State appeals court expands use of battered-women's syndrome; Defense could apply to being forced to murder, judges rule." You can access Thursday's ruling by a divided three-judge panel of the California Court of Appeal for the Fourth Appellate District, Division One, at this link.
Posted at 09:50 AM by Howard Bashman



"Perez Hilton takes their best shots; The gossip blogger's use of an agency's paparazzi photos puts the legal spotlight on copyright infringement": This article appears today in The Los Angeles Times.
Posted at 09:42 AM by Howard Bashman


"Why Supreme Court Justices Should Ride Circuit Again": Law Professor David R. Stras has posted this article (abstract with links for download) online at SSRN (via "Legal Theory Blog").
Posted at 09:40 AM by Howard Bashman


In news from the Microsoft class-action consumer antitrust trial in Des Moines: On Wednesday, The Des Moines Register reported that "Microsoft judge orders plaintiffs to supply files; The software maker says lawyers used tricky language as a shield."

And on Tuesday, that newspaper contained an article headlined "Lawyer: Microsoft acts 'fair'; Software maker's attorney says plaintiffs' team's opening statements were 'openly misleading.'" In addition, columnist Marc Hansen had an essay entitled "Maybe Gates deserves praise, not hate."
Posted at 09:15 AM by Howard Bashman



The Associated Press is reporting: David Kravets reports that "Showdown Looms Over Domestic Spying."

And in other news, "'Fighting Sioux' Lawsuit Delayed."
Posted at 09:10 AM by Howard Bashman



Saturday, December 16, 2006

"Does separation equal suffering? Some state inmates spend years in solitary; Critics say that is cruel and unusual." This article will appear Sunday in The St. Petersburg Times.
Posted at 10:37 PM by Howard Bashman


"Cambridge courthouse workers can sue judge; Asbestos in building led to employees' case": The Boston Globe today contains an article that begins, "In a decision that a lawyer for Cambridge courthouse workers said bolsters their demands for asbestos protection, the Supreme Judicial Court ruled yesterday that employees can pursue a civil suit to ensure that their health is safeguarded during renovation of the problem-plagued 22-story building."

You can access yesterday's ruling of the Supreme Judicial Court of Massachusetts at this link.
Posted at 10:33 PM by Howard Bashman



"Rell Gets Help In Picking New Chief Justice": Today in The Hartford Courant, Lynne Tuohy has an article that begins, "The scandal set in motion by former Chief Justice William J. Sullivan's decision to withhold a controversial court ruling on behalf of a colleague followed its own unique path. So too, it seems, has the search for Sullivan's successor."
Posted at 10:30 PM by Howard Bashman


"N.C.'s ban on explicit dancing upheld": The Associated Press provides this report. My earlier coverage appears here.
Posted at 08:05 PM by Howard Bashman


"Former Steeler's Family Wins Disability Ruling": The New York Times on Thursday contained this article reporting on a 35-page non-precedential ruling that the U.S. Court of Appeals for the Fourth Circuit issued on Wednesday.
Posted at 08:02 PM by Howard Bashman


"In New Jersey, Gay Couples Ponder Nuances of Measure to Allow Civil Unions": This article appears today in The New York Times.

The Newark Star-Ledger reports today that "Some civil servants balk at performing civil unions; Mayors unsure of duties under pending law."

And The Philadelphia Inquirer contains an article headlined "N.J. civil unions and insurance: The cost, not the semantics, is the focus to businesses, which would be required to pay health benefits for workers' same-sex partners."
Posted at 08:00 PM by Howard Bashman



"He Does Take This Woman. Now, About Her Last Name...." The New York Times today contains an article that begins, "If John Smith falls in love with Marie Bakalaka and wishes to become John Bakalaka, should that cost him money? Should his wishes come with so much grief? Wouldn't his family be likely to give him enough of that? The American Civil Liberties Union filed a lawsuit in United States District Court here Friday asking for an overhaul of California laws that dictate the process of changing a name through marriage."

And the ACLU of Southern California yesterday issued a press release entitled "Make California Marriage Law Equal for Husbands Who Take Their Wives’ Last Name; ACLU/SC Will Represent Couple Who Faced $300 Name-Change Fee."

My earlier coverage appears at this link.
Posted at 07:45 PM by Howard Bashman



"Padilla's mental health in question; Evaluation requested for al-Qaida suspect": This article appears today in The South Florida Sun-Sentinel.
Posted at 01:12 PM by Howard Bashman


"Block That Branch: Why can Congress take cases away from the courts?" Emily Bazelon has this jurisprudence essay online at Slate.
Posted at 01:07 PM by Howard Bashman


"Ruling halts state method of execution; A judge says California's injection procedure is cruel and unusual": Henry Weinstein has this article today in The Los Angeles Times. A related graphic is here.

Today in The San Francisco Chronicle, Bob Egelko reports that "Judge issues ultimatum to state on executions; He sets 30-day deadline for officials to agree to change lethal injection -- or he'll declare it unconstitutional."

In The San Jose Mercury News, Howard Mintz reports that "Fix needed to resume executions." A related graphic is here.

The Sacramento Bee contains an article headlined "Judge: Rethink lethal injection; He says execution method can be fixed if the governor helps."

The Washington Post contains a front page article headlined "Lethal Injection Is On Hold in 2 States; Florida Governor Suspends Executions; Judge Orders California to Alter Methods."

And in The New York Times, Adam Liptak and Terry Aguayo report that "Florida Governor Halts the Death Penalty."
Posted at 01:04 PM by Howard Bashman



We're number two! Thanks to everyone who voted for "How Appealing" in the "Best Law Blog" category in The 2006 Weblog Awards. You can access the preliminary results at this link.

"How Appealing" achieved second place with 1483 votes, representing 19.75% of the votes cast in this category among ten finalists. The highly deserving first place winner is "The Volokh Conspiracy," with 2399 votes, representing 31.95% of all votes cast in the category.
Posted at 12:50 PM by Howard Bashman



Friday, December 15, 2006

"Military Taking a Tougher Line With Detainees": This article will appear Saturday in The New York Times.
Posted at 11:00 PM by Howard Bashman


Splintered three-judge Fifth Circuit panel holds that Tangipahoa Parish School Board cannot open its meetings using any of four specified prayers: Today's decision consists of separate opinions from each of the three judges on the panel. At first blush, this case appears to be a likely candidate for rehearing en banc.
Posted at 10:35 PM by Howard Bashman


Alcohol, nude dancing, simulated sexual acts, and fondling of sexual organs: A North Carolina statute provides that those things shouldn't mix, at least on the premises of a business licenced to serve alcohol by the North Carolina Alcoholic Beverage Control Commission. Today a unanimous three-judge Fourth Circuit panel holds that the North Carolina law passes muster under the federal constitution. You can access today's ruling at this link.
Posted at 10:25 PM by Howard Bashman


Fourth Circuit holds that public school board's policy of unfettered discretion concerning whether to waive fees for religious club meetings held in school buildings presents such a risk of viewpoint discrimination as to run afoul of the First Amendment: A unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued this ruling today. The decision, written by Circuit Judge J. Harvie Wilkinson III, reverses a federal district court's decision finding that the challenged policy, while vague enough to allow school administrators to violate the First Amendment by treating speakers differently based upon their views, presented no constitutional problem because the school district had not in fact engaged in viewpoint discrimination.
Posted at 09:28 PM by Howard Bashman


Access online the audio from the recent Yale Federalist Society blogging panel: If you didn't get to see me, Glenn Reynolds, and Jack Balkin at our joint appearance in New Haven on December 5th, you can listen to the festivities via audio files accessible here.
Posted at 08:55 PM by Howard Bashman


Lyle Denniston is reporting: At "SCOTUSblog," he has posts titled "New filings on detainees" and "South Carolina seeking historic papers." My earlier coverage of the historic papers case can be accessed here.
Posted at 08:44 PM by Howard Bashman


Who wants to be a sentencing judge? The "Ask the Audience" lifeline may sometimes prove valuable in "Who Wants to be a Millionaire?" but when it comes to criminal sentencing, apparently not so much.

The Pocono Record today contains an article headlined "Parents assail rulings in teen drinking case" that begins, "A district judge has drawn some community ire for how he conducted a Thursday court proceeding for a woman charged with providing alcoholic drinks to minors, specifically for polling the minors' parents on how large a fine they thought she should pay."
Posted at 06:00 PM by Howard Bashman



BREAKING NEWS -- "In ruling, judge calls California's lethal-injection procedure 'intolerable'": Henry Weinstein of The Los Angeles Times provides this news update.

Howard Mintz of The San Jose Mercury News provides a news update headlined "California's lethal injection system is 'broken' 'San Jose judge rules; Executions remain suspended indefinitely."

And David Kravets of The Associated Press reports that "Judge Says Executions Unconstitutional."

The LA Times has posted online at this link today's ruling by U.S. District Judge Jeremy Fogel of the Northern District of California.
Posted at 05:10 PM by Howard Bashman



"Subpoena Silliness: The feds overplay their hand against the ACLU." Jack Shafer has this Press Box essay online at Slate.
Posted at 02:20 PM by Howard Bashman


"Another Bush judge on the hot seat": Will Evans has this post today at Salon.com's "War Room" blog, focusing on Third Circuit nominee Thomas M. Hardiman's responses to written follow-up questions from two Democratic members of the Senate Judiciary Committee.

Back on November 28, 2006, Jason Cato of The Pittsburgh Tribune-Review had an article headlined "Hardiman could become political pawn."
Posted at 02:14 PM by Howard Bashman



"Posner: First Judge in Cyberspace." The blog "Eminent Domain" links to this fascinating transcript of Seventh Circuit Judge Richard A. Posner's foray into the cyber reality known as "Second Life" last week.

Here's one interesting excerpt (with an accompanying photo):

JRP [Judge Richard Posner]: Is that a raccoon?

Kear Nevzerov: I'm a "furry". Not sure how I got this way.

JRP: I think it's Al Qaeda.

KN: I'm really an IP lawyer from DC. Honest.

JRP: I like your tail.

Near the end of his visit to "Second Life," Judge Posner speaks further to the raccoon-like avatar (added bonus -- another photo):
JRP: My pleasure. But where's the raccoon? Come back here, raccoon. That's an order.

Kear Nevzerov: Yes, sir?

JRP: Hi. I have a Maine Coon cat--half raccoon. Her name is Dinah. She was in the New Yorker.

KN: It's what they gave me when I signed up yesterday. Would like to lose the tail.

JRP: Your tail is great.

You can access the complete transcript at this link, while an image of Judge Posner's cat can be viewed at page two of this PDF document.
Posted at 12:30 PM by Howard Bashman


"What wrong with equitable Booker retroactivity in the Ninth Circuit?": Law Professor Doug Berman has this post at his "Sentencing Law and Policy" blog, along with a related post titled "Distinguishing finality interests between convictions and sentences."
Posted at 12:15 PM by Howard Bashman


Happy Birthday First Amendment! (Or just one more reason to spend the winter in Florida?) "The First Amendment turns 215 years old today," Paul K. McMasters writes at the start of this essay posted today at the First Amendment Center.

A state trial court judge in Florida yesterday got a jump on the festivities, as The Associated Press recounts in an article headlined "Judge: Ormond Beach woman didn't break law by exposing breasts." An even more detailed article -- published today in The Daytona Beach News-Journal under the headline "Court rules in favor of topless protester" -- quotes the protester's attorney as having said, "I've never seen another city or case where the city has shown so much time and effort to shut down one person's First Amendment right of protected speech." And the article also reports that municipality has already appealed the case to a higher court.
Posted at 12:05 PM by Howard Bashman



D.C. Circuit rejects challenge by providers of internet telephone service to the FCC's order requiring them within 120 days to effectuate the ability to transmit 911 calls to a local emergency authority: You can access today's VoIP-related ruling at this link.

The importance of 911 service in our post-9/11 world did not escape the attention of Circuit Judge Brett M. Kavanaugh, whose concurring opinion concludes, "In sum, the evidence establishes that adequate 911 service is vital to the personal security of American citizens and the homeland security of our Nation. The broad public safety and 911 authority Congress has granted the FCC therefore includes the authority to prevent providers from selling voice service that lacks adequate 911 capability."
Posted at 10:44 AM by Howard Bashman



Unable to be heard, the mute swan loses protection under federal law from being hunted or killed: A unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit today ruled that the Migratory Bird Treaty Reform Act amended the Migratory Bird Treaty Act to revoke protection the mute swan enjoyed under the earlier act from being hunted or killed. The more recent of those two laws limits the protection afforded under the earlier law only to migratory birds native to the United States or its territories, which the mute swan is not. You can access today's ruling at this link.

Although the swan at issue may be mute, Circuit Judge Brett M. Kavanaugh was not, writing both the majority opinion and a concurring opinion in the case. The wikipedia entry for the mute swan can be accessed here. Wordplay experts have already denounced today's ruling, which deprives them of their hoped-for headline "Mute Swans Moot!"
Posted at 10:33 AM by Howard Bashman



Today is your final opportunity to vote for "Best Law Blog" in The 2006 Weblog Awards: Please do so, by clicking here to access the page where you can cast your vote.

"The Volokh Conspiracy" continues to maintain a well-deserved 900+ vote lead in first place, so please cast your vote in favor of "How Appealing" to help assure that this blog remains in second place. The battle for second place in the voting remains intense, so your vote in favor of this blog will be very much appreciated.
Posted at 08:35 AM by Howard Bashman



"N.J. lawmakers approve gay civil unions; Corzine applauds historic passage": This article appears today in The Newark Star-Ledger.

The New York Times reports today that "Legislators Vote for Gay Unions in New Jersey."

The Philadelphia Inquirer reports that "N.J. legislature OKs civil-union bill."

The Washington Post reports that "N.J. Legislature Votes to Allow Same-Sex Unions."

And The Los Angeles Times reports that "New Jersey is 3rd state to allow gay civil unions; The Legislature moves swiftly after it was ordered to allow same-sex marriages or create an equivalent."
Posted at 08:30 AM by Howard Bashman



"Lawyers for Ryan make case; Appeal hinges on 'avalanche' of judicial errors": The Chicago Tribune today contains an article that begins, "Attorneys for former Gov. George Ryan argued Thursday in appeal papers that Ryan's conviction should be reversed, citing 'an avalanche of errors' by the judge who presided over the historic, marathon trial."
Posted at 08:25 AM by Howard Bashman


"Israeli High Court Backs Military On Its Policy of 'Targeted Killings'": This front page article appears today in The Washington Post.

The Los Angeles Times reports today that "Israeli high court upholds 'targeted killings' of Palestinians."

And The Chicago Tribune reports that "Israeli high court OKs targeted killings policy."

My earlier coverage appears at this link.
Posted at 08:23 AM by Howard Bashman



"Adding color to farm-raised salmon lands on state Supreme Court menu": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 08:20 AM by Howard Bashman


"Take your wife's name? That'll cost you -- so ACLU steps in." This article appears today in The Los Angeles Times.
Posted at 08:17 AM by Howard Bashman


"Judge allows release of 'Alpha Dog' film": The Los Angeles Times today contains an article that begins, "A federal judge has refused to block next month's release of the movie 'Alpha Dog,' despite a defendant's argument that the film would bias jurors in his upcoming murder trial. On Thursday, an attorney for Jesse James Hollywood, 26, asked the 9th Circuit Court of Appeals to review the opinion by U.S. District Judge R. Gary Klausner before the movie's scheduled Jan. 12 release."
Posted at 08:15 AM by Howard Bashman


"Florida Death Row Inmate Dies Only After Second Chemical Dose": This article appears today in The New York Times.

The Miami Herald reports today that "State probes lengthy execution."

The St. Petersburg Times contains articles headlined "Bush orders in-depth look at Diaz execution" and "Slow death raises execution questions."

The Tampa Tribune reports that "Execution Puts Crist To Test."

The Orlando Sentinel contains an article headlined "Florida death-penalty system: In legal limbo?"

The Palm Beach Post reports that "Lengthy execution sparks protests from state death-penalty opponents."

The Gainesville Sun reports that "Diaz ordeal raises legal challenges."

And Associated Press reporter Ron Word, who has witnessed more than 50 Florida executions since 1984, including all 20 the state has conducted by lethal injection, has an article headlined "Florida inmate seemed like he 'would never die.'"
Posted at 08:12 AM by Howard Bashman



"Profs Assail Anti-Terror Act; Harvard professors take on Bush administration and enlist unlikely allies": The Harvard Crimson today contains an article that begins, "A group of elite law professors from Harvard filed a legal brief this week asserting that one of the Bush administration’s central anti-terror policies is unconstitutional, a move that brought together ideologues from across the political spectrum."
Posted at 07:55 AM by Howard Bashman


"Shooting of Lawyer and His Wife Remains a Mystery": Today's edition of The New York Times contains an article that begins, "There is a suspicious gun as well as a police sketch, but still no arrests. Nearly a month after a disbarred lawyer from this Westchester County town told the police that his wife was slain and he was slightly wounded by a stranger in a roadside ambush, the police say they are still vigorously seeking the gunman."
Posted at 07:44 AM by Howard Bashman


"A Gag on Free Speech": The New York Times today contains an editorial that begins, "The Bush administration is trampling on the First Amendment and well-established criminal law by trying to use a subpoena to force the American Civil Liberties Union to hand over a classified document in its possession."

And The Washington Post today contains an editorial entitled "Pentagon Papers Revisited: The Bush administration's ever-expanding war on the First Amendment."

Additional background on this matter can be accessed here, at the blog "National Security Advisors."
Posted at 07:40 AM by Howard Bashman



"Judges for Sale": Online at the web site of The New York Times, Dorothy Samuels has a "Talking Points" essay (TimesSelect temporary pass-through link) that begins, "It was bound to happen sooner or later. Special interests have long targeted candidates for executive offices, like president and governor, and legislative offices, like Congress and state legislatures. It was just a matter of time before well-heeled business and other interests would expand their influence-peddling efforts, and begin pouring large amounts of money into previously sleepy judicial campaigns."
Posted at 07:35 AM by Howard Bashman


"Death Sentences Decline, and Experts Offer Reasons": Neil A. Lewis has this article today in The New York Times.

And today in The Los Angeles Times, Henry Weinstein reports that "Executions in U.S. drop to a 10-year low; In 2006, 53 death sentences were carried out, down from 60 last year; Public opinion seems to be changing."
Posted at 07:30 AM by Howard Bashman



"The Racial Runaround: The University of Michigan isn't accepting voters' rejection of affirmative action." This editorial appears today in The Wall Street Journal.
Posted at 06:48 AM by Howard Bashman


"A Kidney Is Given Away, and Patient Can't Sue To Get It Back, Court Says": Joseph Goldstein has this article today in The New York Sun.

My most recent earlier coverage appears at this link.
Posted at 06:44 AM by Howard Bashman



Thursday, December 14, 2006

"Court: Man Not Entitled to Pal's Kidney." The Associated Press provides this report on a ruling that the Court of Appeals of New York, that State's highest court, issued today.

Believe it or not, the case reached New York's highest court on certification from the U.S. Court of Appeals for the Second Circuit. My earlier coverage of the Second Circuit's certification decision appeared in a post titled "Suing over a kidney vs. the common-law public policy against recognizing property rights in human corpses." That earlier post begins, "The majority on a divided three-judge Second Circuit panel recognizes that no oddball tort case would be complete without a certification of difficult questions to the New York Court of Appeals."
Posted at 04:44 PM by Howard Bashman



Bushmen (no relation) of Botswana win appellate court victory: The Washington Post reports today that "Eviction of Bushmen Is Ruled Illegal; Botswana Game Reserve Was Ancestral Home for Thousands."

The Los Angeles Times reports today that "Botswana's Bushmen win fight over Kalahari land; Court rules the tribal group has the right to live and hunt in a game reserve."

The Times of London reports that "Bushmen win the right to go home; High Court rules land eviction illegal; A victory 'for all indigenous peoples.'"

The Telegraph (UK) reports that "Bushmen return to their ancient homeland."

BBC News reports that "Botswana bushmen win land ruling; Bushmen from the Kalahari desert have won a court case in which they accused Botswana's government of illegally moving them from their land."

The Associated Press reports that "Botswana Gives Bushmen Tough Conditions."

Reuters reports that "Botswana Bushmen win battle for ancestral home."

And today's broadcast of NPR's "Morning Edition" contained an audio segment entitled "Botswana Bushmen Win Right to Return to Land."

Previous entries in this blog's recurring "no relation" series can be accessed here, here, here, here, and here.
Posted at 04:33 PM by Howard Bashman



"Shrinking Supremes: A less active Supreme Court will not be a less controversial one." This article appears in the current issue of The Economist (via "SCOTUSblog").
Posted at 04:12 PM by Howard Bashman


No escape Hatch for Senate Judiciary Committee: You may have read elsewhere reports that "Senator Hatch Really Is Leaving Judiciary." If your response was "Say it ain't so," you'll be glad to hear that apparently it ain't so.

Yesterday the Senate Republican Party issued a news release titled "McConnell Announces Republican Committee Assignments." According to the news release, the Republican members of the Senate Judiciary Committee for the 110th Congress, scheduled to convene in January 2007, will be "Specter, Hatch, Grassley, Kyl, Sessions, Graham, Cornyn, Brownback, and Coburn."
Posted at 02:58 PM by Howard Bashman



Seventh Circuit rejects argument that evidence gathered under Foreign Intelligence Surveillance Act ("FISA") cannot be used in domestic criminal investigations or prosecutions: Chief Judge Frank H. Easterbrook wrote today's opinion on behalf of a unanimous three-judge panel.
Posted at 12:40 PM by Howard Bashman


"Connerly gearing up for wider crusade; Affirmative action foe considers launching campaigns in 9 states": This article appears today in The San Francisco Chronicle.
Posted at 12:40 PM by Howard Bashman


"NVTC Titans Breakfast: Supreme Court Justice Antonin Scalia Warns Technology Business Community that Low Salaries Will Impact the Quality of Federal Judges; Justice Scalia Also Discusses Constitutional Interpretation and Other Vital Legal Issues." The Northern Virginia Technology Council issued this press release yesterday.

At "Balkinization," Mark Graber has a related post titled "Roughing It."

Meanwhile, Money Magazine reports here that it's difficult to make ends meet on a $150,000 per year income in in Elkhorn, Nebraska, just west of Omaha.
Posted at 12:30 PM by Howard Bashman



"Statute of Limitations Passes in Probe of Leaks to N.Y. Times": Today in The New York Sun, Josh Gerstein has an article that begins, "A key legal deadline has passed, raising doubts about whether criminal charges will ever be filed in an investigation of leaks to the New York Times about planned federal raids on Islamic charities in America."
Posted at 12:15 PM by Howard Bashman


Only two days remain to vote for "Best Law Blog" in The 2006 Weblog Awards: And that means that only one more annoying reminder to vote is yet to appear here this week at "How Appealing."

You can vote once every 24 hours per computer per web browser, meaning that if you have three PCs with two separate web browsers installed on each, you can cast a total of 12 votes before the polls close late Friday night.

"The Volokh Conspiracy" continues to maintain an insurmountable and well-deserved 800+ vote lead in first place, so please cast your vote in favor of "How Appealing" to help assure that this blog remains in second place. Simply click here to access the page where you can cast your vote.
Posted at 10:25 AM by Howard Bashman



"Israel Court Won't Ban Targeted Killings": The Associated Press provides a report that begins, "The Israeli Supreme Court decided Thursday not to issue a blanket ban against the targeted killing of Palestinian militants, ruling that some of the killings were legal under international law."

The Jerusalem Post provides a news update headlined "Court conditions targeted killings rule."

And Haaretz provides a news update headlined "High Court: International law does not forbid targeted killings."

Update: The Supreme Court of Israel's ruling can be accessed in English at this link (via "National Security Advisors").
Posted at 10:20 AM by Howard Bashman



Sixth Circuit overturns $40 million toy train-related jury verdict: The listing of counsel for the defendant-appellant on today's decision demonstrates, once again, that there's nothing like a huge verdict to cause a wealthy defendant to turn to some of the best legal talent money can buy.
Posted at 10:15 AM by Howard Bashman


"'I'm proud to be his son'; Family honors lawyer killed by high-rise gunman": This article appears today in The Chicago Sun-Times.

And The Chicago Tribune today contains an article headlined "In sea of sadness, a smile; Lawyer remembered for putting family 1st."
Posted at 09:08 AM by Howard Bashman



"Slavery reparation suit gets a reprieve": The Chicago Tribune today contains an article that begins, "A federal appeals court revived part of a slavery reparations lawsuit on Wednesday, giving a measure of hope to descendants of slaves who are seeking damages from firms they say profited from the slave trade."

My earlier coverage appears at this link.
Posted at 09:05 AM by Howard Bashman



"Leahy threatens to subpoena Bush officials; The incoming Senate judiciary chair says he'll use the oversight tool if they refuse requests for papers and testimony": This article appears today in The Los Angeles Times.

You can access the full text of U.S. Senator Patrick J. Leahy's remarks at this link or watch a video of the speech by clicking here (RealPlayer required).

Update: In other coverage, The Washington Times reports today that "Leahy vows to repair Bush 'damage.'"
Posted at 09:03 AM by Howard Bashman



"Judge Sets Back Guantanamo Detainees": Neil A. Lewis has this article today in The New York Times.

Today in The Washington Post, Robert Barnes reports that "Judge Rejects Detention Challenge of Bin Laden's Driver."

And David G. Savage of The Los Angeles Times reports that "Guantanamo inmates may not appeal, judge rules; Congress' tribunal law, however, cannot deny that right to legal immigrants in the U.S., the federal jurist says."
Posted at 08:54 AM by Howard Bashman



"Federal Judge Asked to Decide if Padilla Is Competent for Trial": This article appears today in The New York Times.

And The Washington Post reports today that "'04 Pentagon Report Cited Detention Concerns."
Posted at 08:50 AM by Howard Bashman



Don't use your money to make more money, or else: Today's edition of USA Today contains an article headlined "New rules outlaw melting pennies, nickels for profit" that begins, "People who melt pennies or nickels to profit from the jump in metals prices could face jail time and pay thousands of dollars in fines, according to new rules out today."
Posted at 06:45 AM by Howard Bashman


"ACLU Fighting Justice Department Over Secret Document": Josh Gerstein has this article today in The New York Sun.

Today in The New York Times, Adam Liptak reports that "U.S. Subpoena Is Seen as Bid to Stop Leaks."

And The Washington Post reports that "U.S. Gets Subpoena to Force ACLU to Return Leaked Memo."
Posted at 06:40 AM by Howard Bashman



Wednesday, December 13, 2006

"Execution of Fla. Inmate Takes 34 Min." The AP provides this report.
Posted at 10:11 PM by Howard Bashman


The Associated Press is reporting: Now available online are articles headlined "Judge Upholds Detainee Rights Terror Law" and "Court: Jury Didn't Need Smoke Breaks."
Posted at 06:10 PM by Howard Bashman


"Ex-Enron CEO Skilling reports to prison": The Houston Chronicle provides this news update.
Posted at 06:05 PM by Howard Bashman


Eleventh Circuit refuses to reconsider en banc whether a federal district court imposing sentence for a crack cocaine offense in this post-Booker regime may express disagreement with Congress's 100-to-1 powder cocaine-to-crack cocaine ratio: Today's order denying rehearing en banc is accompanied both by a concurring opinion and a dissenting opinion.
Posted at 04:28 PM by Howard Bashman


"Court Nixes Neb. Corporate Farm Ban": The Associated Press provides this report.
Posted at 03:55 PM by Howard Bashman


U.S. District Court for the District of Columbia dismisses Salim Ahmed Hamdan's petition for writ of habeas corpus as blocked by the jurisdiction-stripping language of the Military Commissions Act: I have posted a copy of today's ruling online at this link.

The opinion, by U.S. District Judge James Robertson, concludes: "Congress's removal of jurisdiction from the federal courts was not a suspension of habeas corpus within the meaning of the Suspension Clause (or, to the extent that it was, it was plainly unconstitutional, in the absence of rebellion or invasion), but Hamdan's statutory access to the writ is blocked by the jurisdiction-stripping language of the Military Commissions Act, and he has no constitutional entitlement to habeas corpus. Hamdan's habeas petition must accordingly be dismissed for want of subject matter jurisdiction."

Update: The opinion is now available online from the district court's web site, at this link. And at "SCOTUSblog," Lyle Denniston has a post titled "Hamdan's case dismissed, but new Act partly invalid."
Posted at 03:33 PM by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Scalia Argues for Better Judicial Pay"; "'Girls Gone Wild' Producer Sentenced"; and "Group Seeks Professionalism in Blogs."
Posted at 02:10 PM by Howard Bashman


"Accordingly, stripped of its facade of a finding of 'extraordinary circumstances' the majority's recall of the mandates in effect applies Booker retroactively to grant relief to defendants whose convictions were final years before Booker was decided." According to today's dissenting opinion of Circuit Judge Consuelo M. Callahan, the majority on a three-judge Ninth Circuit panel has today recalled its mandates "in cases that became final over fifteen years ago and six years ago" to enable resentencing under Booker. Today's ruling would appear to be a prime candidate for rehearing en banc or, if necessary, U.S. Supreme Court reversal.

Update: At "The Volokh Conspiracy," Orin Kerr comments on the ruling in a post that begins, "A lot of people have talked about the Supreme Court's small docket; Judge Harry Pregerson of the Ninth Circuit is actually doing something about it."
Posted at 01:45 PM by Howard Bashman



In In Re: African-American Slave Descendants Litigation, Seventh Circuit reinstates claim asserting that in violation of state fraud or consumer protection law members of the plaintiff classes have bought products or services from some of the defendants that they would not have bought had the defendants not concealed their involvement in slavery: You can access today's ruling of the U.S. Court of Appeals for the Seventh Circuit at this link.
Posted at 01:35 PM by Howard Bashman


Seventh Circuit rejects constitutional challenge to the federal the DNA Analysis Backlog Elimination Act of 2000: You can access today's ruling at this link.

Footnote three of the opinion states: "Hook provides an uncited, but novel assertion that the Founding Fathers would have considered 'blood extraction' to be 'cruel and unusual punishment' because, purportedly, '[v]ampires were feared and vilified' at the time of the Founding. Even accepting this proposition, blood extraction by a vampire is certainly distinguishable from a sanitary blood draw under current medical practice."
Posted at 01:32 PM by Howard Bashman



"Botswana Bushmen Win Court Case Over Land": The Associated Press provides this report on a decision of Botswana's High Court. You can view an image of the High Court building in Lobatse by clicking here (second item).
Posted at 12:00 PM by Howard Bashman


Federal Circuit issues an opinion that's decided in part by a three-judge panel, and in part by the en banc court: Section III B of an opinion the U.S. Court of Appeals for the Federal Circuit issued today was decided by that court sitting en banc, while the balance of today's opinion was issued by a three-judge panel. You don't see that every day.
Posted at 11:44 AM by Howard Bashman


Nebraska constitutional amendment prohibiting ownership of Nebraska farm or ranch land by any corporation, domestic or foreign, which is not a Nebraska family farm corporation violates dormant Commerce Clause, unanimous three-judge Eighth Circuit panel holds: You can access today's ruling of the U.S. Court of Appeals for the Eighth Circuit at this link.
Posted at 11:35 AM by Howard Bashman


"Levin criticizes Brownback offer on judicial nomination": The Associated Press provides a report that begins, " Sen. Carl Levin said Tuesday it would be 'very inappropriate' for Kansas Sen. Sam Brownback to request that a federal judicial nominee agree to recuse herself from any case dealing with same-sex unions."

And The Detroit Free Press today contains an editorial entitled "Break the hold on judge's confirmation."
Posted at 10:45 AM by Howard Bashman



"Most say Boise lawyer who is up for seat on 9th Circuit has little chance of being approved by Democratic Congress": The Idaho Statesman today contains an article that begins, "If President George W. Bush renominates a controversial Republican Idaho lawyer for a seat on the 9th U.S. Circuit Court of Appeals, he's going to have a tough fight ahead of him, Senate leaders say. The nomination of Boise lawyer William Gerry Myers III, which has been stalled in the Senate for three years, may have almost reached an end."

That newspaper today also contains an editorial entitled "Myers still a poor choice for 9th Circuit Court."
Posted at 10:40 AM by Howard Bashman



Only three days remain to vote for "Best Law Blog" in The 2006 Weblog Awards: And that means that only two more annoying reminders to vote are yet to appear here this week at "How Appealing."

You can vote once every 24 hours per computer per web browser, meaning that if you have three PCs with two separate web browsers installed on each, you can cast a total of 18 votes before the polls close late Friday night.

"The Volokh Conspiracy" continues to maintain an insurmountable and well-deserved 700+ vote lead in first place, so please cast your vote in favor of "How Appealing" to help assure that this blog remains in second place. Simply click here to access the page where you can cast your vote.
Posted at 08:30 AM by Howard Bashman



"Passion fills O.C. court in trial over student rights; Closing arguments are made in a suit over an O.C. principal's actions against two girls who went steady; The one suing says she was outed": This article appears today in The Los Angeles Times.
Posted at 08:20 AM by Howard Bashman


"Lawyer's letter: Toilet invention isn't new; Document found in killer's trunk." The Chicago Sun-Times today contains this article, along with an article headlined "Seeing worst, best of humanity; Solace amid tragedy after law firm slayings."
Posted at 08:20 AM by Howard Bashman


"Tribe Joins Private Firm as Consultant": The Harvard Crimson today contains an article that begins, "Laurence H. Tribe ’62, the prominent legal expert and Harvard Law School (HLS) professor who represented Al Gore in the 2000 post-election saga, will serve as a consultant on constitutional and Supreme Court matters for the law firm Akin Gump Strauss Hauer & Feld, the firm announced yesterday."

The law firm's press release can be accessed here.
Posted at 08:05 AM by Howard Bashman



"66% Think U.S. Spies on Its Citizens; 52% in Poll Back Hearings on Handling of Domestic Surveillance": The Washington Post contains this article today.
Posted at 08:00 AM by Howard Bashman


"Defense Employees Set For Another Suit to Halt Mandatory Anthrax Shots": This article appears today in The Washington Post.
Posted at 07:58 AM by Howard Bashman


"Israel Court Allows Some Suits by Palestinians": The New York Times today contains an article that begins, "The Israeli Supreme Court ruled Tuesday that Palestinians in the occupied areas who suffer harm by the army in noncombat operations may seek compensation from the government."

The Washington Post reports today that "Court Lets Palestinians Sue Israeli Military; Immunity Denied In Certain Cases."

The Jerusalem Post provides articles headlined "Law against Palestinian suits overturned" and "Meretz hails Palestinian suits decision."

And Haaretz provides articles headlined "Court: Palestinians can sue state for 'noncombat' damages"; "Right furious at 'Intifada Law' verdict's ramifications"; "Pines-Paz: Only seven justices or more should override legislation"; and "High Court's ruling: Human rights trump the Knesset's laws."
Posted at 07:50 AM by Howard Bashman



"Skilling's reprieve short-lived; Court rules the ex-Enron CEO must appeal 'frailties' in case from behind bars": This article appears today in The Houston Chronicle.

And The Washington Post reports today that "Appellate Ruling Pushes Skilling Closer to Prison."
Posted at 06:48 AM by Howard Bashman



"Chesterfield suspends art teacher": The Richmond Times-Dispatch today contains an article that begins, "Monacan High School art teacher Stephen Murmer was placed on paid administrative leave recently after school administrators learned of an online video in which he's demonstrating how he paints with his buttocks."

And The Associated Press reports that "Teacher in Crack Over Butt Art."
Posted at 06:45 AM by Howard Bashman



"Lobbying the Jury": The New York Times today contains an editorial that begins, "We are disappointed that the Supreme Court has upheld a defendant's conviction even though spectators at his trial put prejudicial material in sight of the jury."
Posted at 06:40 AM by Howard Bashman


Tuesday, December 12, 2006

"Scalia, Breyer Debate Unanimity on the High Court": law.com's Tony Mauro provides this report.
Posted at 10:44 PM by Howard Bashman


"Death row lawyers put on notice; Texas highest criminal court sets standards for dumping attorneys for shoddy work": This article appears today in The Austin American-Statesman.
Posted at 09:10 PM by Howard Bashman


"I am convinced that to treat drunk driving convictions, however numerous, as 'violent felonies' is unwarranted by the language of the ACCA and is contrary to the intent of Congress." So writes Circuit Judge Michael W. McConnell, in a dissent issued today from a three-judge panel's ruling of the U.S. Court of Appeals for the Tenth Circuit. In that dissent, Judge McConnell recognizes that his view is not only contrary to the decision his Tenth Circuit colleagues reach today, but his dissenting view is also contrary to recent holdings of the Seventh and Eighth Circuits (the latter, sitting en banc).
Posted at 09:05 PM by Howard Bashman


Do Not Pass Go, Do Not Collect $200: The Associated Press provides a report headlined "Court Denies Skilling's Bail Request" that begins, "A federal appellate court denied former Enron Chief Executive Officer Jeffrey Skilling's request to remain free during his appeal Tuesday and ordered him imprisoned immediately."
Posted at 07:10 PM by Howard Bashman


The Associated Press is reporting: Now available online are articles headlined "Government Appeals Currency Redesign" and "Terror Case Shows Bush, Libertarian Rift."
Posted at 05:58 PM by Howard Bashman


By a vote of 9-7, en banc Fifth Circuit overturns Texas state court death sentence on a finding of a Penry violation: You can access the en banc ruling, dated yesterday but posted online today, at this link. The 161-page en banc ruling consists of a majority opinion, a concurrence, and four separate dissenting opinions. Odds are good that if you aren't familiar with Penry yet, you will be by the time you are done reading today's lengthy adjudication.

Update: A reader emails to note that Circuit Judge James L. Dennis gives a shout-out to his current law clerks -- Kevin Kneupper, Jelani Jefferson, and Bradley Meissner -- in footnote one of his concurring opinion on page 48 of the PDF file. Sadly, only one of those law clerks appears to have a blog, while another appears to be mentioned on page 19 of this Harvard Law School fundraising brochure. Assuming that Judge Dennis is the only member of the en banc court to have offered a law clerk shout-out, it would appear that the en banc Fifth Circuit is aligned 15-1 against law clerk shout-outs.
Posted at 03:10 PM by Howard Bashman



"Colleges ask court to delay Proposal 2; State schools want to stall action for Class of '07; U-M may back off challenge of affirmative action ban": This article appears today in The Detroit News.

The Detroit Free Press reports today that "Universities want some more time on Prop 2; They cite fairness; U-M drops threat."

The Ann Arbor News reports that "U-M files for delay on Prop 2; MSU, Wayne State also seek to retain policies for 2007 admissions."

And The Michigan Daily contains an article headlined "'U' seeks to delay Prop 2; MSU, Wayne co-file motion" and a news analysis headlined "Is 'U' softening its strategy? Milder tack could prevent backlash from voters, legislators."

I have uploaded here and here yesterday's court filings that are the subject of these news reports.
Posted at 01:05 PM by Howard Bashman



"Akin Gump Strikes Deal With Larry Tribe": Peter Lattman has this post today at WSJ.com's "Law Blog."
Posted at 10:42 AM by Howard Bashman


Does Ohio's DOMA constitutional amendment affect whether that State's domestic violence law applies to unmarried persons? The Columbus Dispatch today contains an article headlined "Domestic-assault case tests effects of '04 marriage law" that begins, "When Ohioans voted two years ago to outlaw same-sex marriages, they also might have stripped away defenses for unmarried partners in abusive relationships, domestic-violence attorneys will argue today in a case before the state Supreme Court."

The court provides this summary about the case, and you can view the oral argument live, online by clicking here (RealPlayer required). The court is now (at 10:40 a.m. eastern time) hearing oral argument in the immediately preceding case on today's oral argument calendar.

Update: At 11 a.m. eastern time, Ohio's highest court has begun hearing oral argument in this case. Second update: Oral argument of the case concluded at 11:39 a.m. eastern time. Archived video of the oral argument should soon be available via this link.
Posted at 10:40 AM by Howard Bashman



"States, news groups back Chronicle's BALCO reporters; Appeals court to decide whether to jail men for withholding grand jury transcript source": This article appears today in The San Francisco Chronicle.

And The Associated Press reports that "States Side With SF Chronicle Reporters."
Posted at 10:28 AM by Howard Bashman



Thanks for propelling "How Appealing" into second place in the voting for "Best Law Blog" in The 2006 Weblog Awards: Just 24 hours ago, "How Appealing" had fallen to third place in the polls, trailing some British law blog that I had never heard of before this contest began. But my readers valiantly answered yesterday's plea, voting in droves to ensure that "How Appealing" now holds second place by approximately 200 votes over the third place blog.

"The Volokh Conspiracy" continues to maintain an insurmountable and well-deserved 600+ vote lead in first place, so please continue to vote once every 24 hours between now and December 15th, when the polls will close, to assure that "How Appealing" remains in second place.

You can vote once every 24 hours per web browser, so if you haven't voted recently, please do so by clicking here.
Posted at 08:55 AM by Howard Bashman



A reason for bloggers to praise The New York Times: I just noticed a new feature available at the web site of The New York Times. Immediately below the headlines of newly published articles, and to the right of the beginning of the text of those articles, are a series of links that now include a brand-new option titled "Share." Clicking on the "Share" option launches several other options, including one titled "Permalink."

Selecting the "Permalink" option launches a new window providing access to a link that The New York Times describes as follows: "Using this link will ensure access to the article, even after it becomes part of the NYT archive."

Previously, the only way that a blogger could ensure that he or she was linking to an NYTimes article that would not eventually become no longer freely available once consigned to that newspaper's archives was to use the RSS link that could either be generated via Blogspace or searched for manually using the newspaper's own RSS page.

Unfortunately, not every article published in each day's newspaper received an RSS link from the NYTimes, and therefore those articles that did not receive an RSS link would eventually become largely unavailable for free in the NYTimes archive.

Earlier this morning, I linked to a NYTimes article headlined "Bill on Civil Unions Moves Forward in New Jersey." No RSS link was available for that article either through Blogspace or the NYTimes' own RSS page. However, using the NYTimes' new "Permalink" option, I was nonetheless able to use this link to the article, which the newspaper says will provide full access to the article even after first of my two links to the article in this paragraph directs the user to the NYTimes archive.

What's happening here is that The NYTimes is making it easier for bloggers to link to articles published in that newspaper in a way that -- weeks, months, and years from now -- will enable others who click on those links to freely access the full text of those articles without either needing to have a TimesSelect subscription or needing to pay for full access. Here's an example: this is an RSS pass-through link to an article published on November 1, 2005 headlined "President Picks Judge on Appeals Court for O'Connor's Seat." By contrast, click here to see what sort of access to that very same article you'd receive if I had not furnished the RSS permalink.

As before, bloggers will of course have to execute a few more mouse-clicks to provide their readers with permalinks to NYTimes content, but I'm hoping that other bloggers will realize the value to their readers and their own archives in doing so.
Posted at 08:45 AM by Howard Bashman



"Skilling prison date postponed; 5th Circuit asks time for 'careful consideration' of his bail request, sets no timetable": This article appears today in The Houston Chronicle.

The Minneapolis Star Tribune reports today that "Waseca will have to wait for former Enron CEO; A court has stayed the order requiring Jeff Skilling to report to the federal prison in Waseca by Tuesday afternoon."

And The Washington Post reports that "Skilling's Arrival In Prison Delayed; Court Weighs Bail Pending Appeal."
Posted at 08:24 AM by Howard Bashman



"Letter reveals shooter's anger; It says lawyer 'destroyed his life'": The Chicago Tribune today contains an article that begins, "Angry, misspelled words and rambling sentences, scrawled by the hand of the man who last week killed three and tore a downtown law firm apart with gunfire, sketch a rough-edged portrait of a frustrated, fragile mind that would eventually break. Joe Jackson, a would-be inventor with a plan for a tractor-trailer toilet, believed a patent attorney had stolen his idea." Some excerpts from the letter can be viewed online at this link.

And the newspaper also reports today that "Shooting rampage casts pall of anxiety; Visitors to high-rise say they are scared."
Posted at 08:14 AM by Howard Bashman



"Judge Rejects Injunction Against 'Borat'": The Associated Press provides this report.

And BBC News reports that "Move to block Borat DVD rejected; A move by two university students to halt the forthcoming DVD release of the spoof movie Borat has been rejected by a Los Angeles judge."
Posted at 08:05 AM by Howard Bashman



"Senate panel approves civil unions bill; Gay pairs a step closer to marriage equality": This article appears today in The Newark (N.J.) Star-Ledger.

The New York Times reports today that "Bill on Civil Unions Moves Forward in New Jersey."

And The Philadelphia Inquirer reports today that "N.J. civil-union bill rushes to a vote."
Posted at 07:50 AM by Howard Bashman



"So This Manatee Walks Into the Internet": The New York Times today contains this article recounting the story of why the NBC television show "Late Night With Conan O'Brien" purchased the domain name www.hornymanatee.com.
Posted at 07:44 AM by Howard Bashman


"Novel Legal Challenge to Wal-Mart Appears To Be Faltering on Coast": Josh Gerstein has this article today in The New York Sun.
Posted at 07:33 AM by Howard Bashman


"High court's majestic library off limits; Repository of law getting makeover, closed until 2008": Joan Biskupic has this article today in USA Today.
Posted at 06:45 AM by Howard Bashman


"Victim-photo ruling is reversed; The Supreme Court unanimously reinstates a murder conviction that a California-based court rejected based on grieving observers' pins": David G. Savage has this article today in The Los Angeles Times. The newspaper also contains an editorial entitled "The 9th Circuit's deserved slap: Supreme Court rebuff in death penalty case points to a recurring problem with the appeals panel."

In today's issue of USA Today, Joan Biskupic reports that "Murder conviction stands in Supreme Court case; Lower court had said buttons worn by spectators might have biased jury."

The San Francisco Chronicle reports that "Murder verdict upheld -- appeals court lacked jurisdiction."

The San Jose Mercury News reports that "Buttons of victims permitted at trials; Supreme Court rules in San Jose murder case." And an editorial is entitled "Ruling misses opportunity to clarify courtroom displays."
Posted at 06:44 AM by Howard Bashman



"Miller-Jenkins v. Miller-Jenkins, and Vermont versus Virginia: How One Contested Custody Case Illustrates the Perils of Non-Uniform State Marriage and Parentage Laws." Joanna Grossman has this essay online today at FindLaw.
Posted at 06:35 AM by Howard Bashman


Monday, December 11, 2006

"Justices Overturn Ruling in Case on Buttons in Court": Linda Greenhouse will have this article Tuesday in The New York Times.
Posted at 11:48 PM by Howard Bashman


This past Saturday, the U.S. Senate apparently returned all pending Article III judicial nominees to the White House: You can confirm it for yourself at this link.

Thus, it's no longer correct to assert that U.S. Senator Sam Brownback (R-KS) is continuing to block the nomination of Michigan Court of Appeals Judge Janet Neff to a federal district judgeship, because her nomination was among those returned to the White House.

One could feel particularly sorry for Thomas Alvin Farr of North Carolina, whom the White House nominated on December 7, 2006 for a federal district judgeship. Just two days later, the U.S. Senate returned that nomination to the White House with all the others.
Posted at 10:20 PM by Howard Bashman



"Skilling won't have to report to prison yet": The Houston Chronicle provides a news update that begins, "The U.S. 5th Circuit Court of Appeals has delayed the start of former Enron CEO Jeff Skilling's prison sentence that was scheduled to begin here Tuesday. The court said today he would not have to report to prison while it considers his motion for bail pending his appeal on his conviction."

And somewhat relatedly, at the blog "Houston's Clear Thinkers" Tom Kirkendall has a post titled "The ordeal of Jamie Olis continues."
Posted at 10:04 PM by Howard Bashman



"Judge wants legal-fee payment plan from Blagojevich": The Associated Press provides a report that begins, "Warning that 'the time for waffling has passed,' a federal judge on Monday ordered Gov. Rod Blagojevich's administration to tell him next week how it plans to pay legal fees in a video-game lawsuit it lost. U.S. District Judge Matthew Kennelly gave the governor's office and Attorney General Lisa Madigan until Dec. 18 to say how they will pay $510,250 in legal fees to the video-game industry. Game representatives sued Blagojevich, Madigan and Cook County State's Attorney Richard Devine over a 2005 law that barred the sale of violent or sexually explicit video games to minors. Kennelly threw out the law as unconstitutional a year ago and ruled in August that the state should pay the industry's legal costs, relieving Devine's office of obligation."
Posted at 10:00 PM by Howard Bashman


Available online at SSRN: Justin Crowe and Christopher Karpowitz have a paper titled "Where Have You Gone, Sherman Minton? The Decline of the Short-Term Supreme Court Justice" (abstract with link for download).

And Law Professor Nan D. Hunter has a paper titled "Justice Blackmun, Abortion, and the Myth of Medical Independence" (abstract with links for download).

Thanks to "Legal Theory Blog" for the pointers.
Posted at 09:54 PM by Howard Bashman



Sorry, no topless photos here: A referral link that recently appeared on this blog's Site Meter counter reveals that "How Appealing" is at present the top-rated response when the phrase "topless photo" is searched at Google Blog Search, due to this earlier post. I don't know whether to feel good or bad that this blog is possibly impeding someone's search for actual topless photos.
Posted at 09:10 PM by Howard Bashman


"Victim Images Did Not Mar Trial, Justices Rule": Robert Barnes -- who is covering the U.S. Supreme Court for The Washington Post while Chuck Lane is on book leave -- will have this article Tuesday in that newspaper.
Posted at 08:57 PM by Howard Bashman


"Lawyers, Guns And History": CBS News legal analyst Andrew Cohen today has an essay that begins, "The Second Amendment was back in the news last week. In Washington, there was yet another hearing in a high-profile lawsuit brought to challenge the District of Columbia's sweeping prohibition against handguns."

Thanks to the law firm Gura & Possessky, P.L.L.C., which represents the plaintiffs in that lawsuit, you can access online via this link the pleadings and briefs filed in the trial court and in the currently-pending appeal before the U.S. Court of Appeals for the D.C. Circuit.

My earlier recent coverage of the D.C. Circuit's oral argument in that case can be accessed here.
Posted at 08:22 PM by Howard Bashman



"Sex and the City: New York City bungles transgender equality." Law Professor Kenji Yoshino has this jurisprudence essay online at Slate.
Posted at 08:15 PM by Howard Bashman


"High Court Restores Verdict in Victim-Button Case": This audio segment (RealPlayer required) featuring Nina Totenberg appeared on this evening's broadcast of NPR's "All Things Considered."
Posted at 08:11 PM by Howard Bashman


"The petition for a writ of certiorari is denied. Justice Kennedy and Justice Souter would grant the petition for a writ of certiorari." That entry appears on today's U.S. Supreme Court Order List for the case captioned Ingram v. United States, No. 06-207.

According to the Brief in Opposition that the Solicitor General filed, the question presented in the case was "Whether due process required the district court to exclude the testimony of a cooperating witness, where the government agreed to pay the witness a percentage of the proceeds from drug sales forfeited as a result of his cooperation."
Posted at 05:15 PM by Howard Bashman



"In a broadside directed at the district court proceedings as a whole, Calvi contends that summary judgment is an unconstitutional abridgement of her Seventh Amendment right to trial by jury. That contention is hopeless." So writes First Circuit Judge Bruce M. Selya in an opinion issued today on behalf of a unanimous three-judge panel.

In case you missed my post from yesterday, Judge Selya was the subject of an interesting article published yesterday in the Ideas section of The Boston Globe bearing a headline that begins, "The sesquipedalian septuagenarian."
Posted at 05:05 PM by Howard Bashman



"Former N.J. Supreme Court Chief Joins Drinker Biddle & Reath": The Legal Intelligencer provides this news update (free access).
Posted at 04:50 PM by Howard Bashman


"Webcast -- A Conversation with Justice Breyer and Harvard Law Professor Fried": If you have the latest version of Apple's QuickTime software installed, you can access via this link streaming video of last Friday's event at the Georgetown Law Center. I didn't have the latest version of QuickTime installed until moments ago, and as a result the video wouldn't play for me until I updated that software to version 7.

No software update will be necessary in all likelihood to enjoy a somewhat blurry photo essay from the event posted online today by David Lat at "Above the Law."
Posted at 04:40 PM by Howard Bashman



"An Inside Look at the Supreme Court: The Supreme Court justices differ on their view of the court's role in society." Jan Crawford Greenburg of ABC News provides this interesting video report.
Posted at 04:10 PM by Howard Bashman


"High Court Says Buttons Didn't Bias Jury in Murder Case": law.com's Tony Mauro provides this news update.
Posted at 04:02 PM by Howard Bashman


"Supreme Court says buttons did not bias jury against killer": David Savage of The Los Angeles Times provides this news update.
Posted at 03:54 PM by Howard Bashman


"Conviction upheld despite buttons worn at trial": James Vicini of Reuters provides this report. Reuters also reports that "US Supreme Court backs gov't on oil, gas royalties."

And Greg Stohr of Bloomberg News reports that "Conviction Reinstated by Top Court in Victim-Photo Button Case."
Posted at 03:45 PM by Howard Bashman



"U-M, MSU, WSU seek Proposal 2 delay": The Detroit Free Press provides a news update that begins, "Michigan's big three universities -- Michigan State University, the University of Michigan and Wayne State University -- announced today they are asking a federal court for a short-term delay in implementing the requirements of Proposal 2, which bans affirmative action programs. The delay would allow the universities to use existing policies to complete admissions and financial aid for students who will enroll for the fall 2007 semester."

The Detroit News provides an update headlined "Three universities ask for delay in Prop 2."

And The Associated Press reports that "Mich. Universities Seek Delay on New Law."

In addition, the University of Michigan issued a news release entitled "Three universities file motion seeking to complete this year's admissions and aid cycle under current rules," while that university's president issued this related statement.
Posted at 03:40 PM by Howard Bashman



"Skilling to start prison term; The former Enron chief is set to begin his sentence on Wednesday in a federal prison near Waseca, Minn." CNNMoney.com provides this report.
Posted at 11:32 AM by Howard Bashman


"FDA Proposes Broadening Access to Drugs": The Associated Press provides this report, which notes that "Next year, a federal court will rehear a 2003 case brought by the Washington Legal Foundation and the Abigail Alliance for Better Access to Developmental Drugs in seeking broader access to drugs that have undergone preliminary safety testing in as few as 20 people but have yet to be approved by the regulatory agency."
Posted at 11:28 AM by Howard Bashman


"Commentary: Have 7th Circuit Judges Gone Off the Deep End?" That's the rather provocative headline my editors at law.com have chosen for this week's installment of my "On Appeal" essay. The focus of my essay is the Seventh Circuit's recent ruling in Smoot v. Mazda Motors of America, Inc. The essay concludes:
If the 7th Circuit desires that the appellate record better reflect the precise basis for the federal district court's subject matter jurisdiction, those appellate judges should consider cracking the whip on their federal district court colleagues. It is the federal district court judges who, in the first instance, have the ability to ensure that the record is absolutely clear concerning what facts and allegations do or do not give rise to the district court's subject matter jurisdiction.

I continue to enjoy the intellect and writing of Judge Posner and Chief Judge Easterbrook, but sometimes, to use Judge Posner's own words, they do cross the line and become fusspots and nitpickers when the question arises of berating or sanctioning attorneys for minor and inconsequential transgressions.

My initial blog coverage of the Smoot ruling can be accessed here.
Posted at 11:20 AM by Howard Bashman


"Even without title, Specter still wields clout in Senate": The Philadelphia Inquirer today contains an article that begins, "Senate Judiciary Committee chairman Arlen Specter won't wield a gavel in the new Congress, but he may still carry a big stick."
Posted at 10:55 AM by Howard Bashman


"Stay Classy: Why liberals should forget about race-based admissions." In the December 18, 2006 issue of The New Republic, Richard D. Kahlenberg has an essay (pass-through link) that begins, "For decades, conservatives have been waiting for the moment when the Supreme Court would act decisively to curtail the use of race in education. With Justice Samuel Alito having replaced Sandra Day O'Connor, that moment may finally have arrived."
Posted at 10:44 AM by Howard Bashman


Today's U.S. Supreme Court decisions in argued cases and Order List: At "SCOTUSblog," Lyle Denniston has a post titled "Court overturns victim buttons ruling."

That ruling reverses a decision that Circuit Judge Stephen Reinhardt delivered on behalf of a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. Seven Ninth Circuit judges noted their dissent from that court's denial of rehearing en banc.

Lyle also reports that Justice Samuel A. Alito, Jr. today issued an opinion on behalf of a unanimous Court in BP America Production Co. v. Burton, No. 05-669. No other opinions in argued cases issued today.

In Carey v. Musladin, No. 05-785, the AEDPA-victim button case, you can access today's decision at this link and the oral argument transcript at this link. Dahlia Lithwick's take on the oral argument was headlined "Button It: The Supreme Court learns to stay out of this messy business of deciding cases."

And in BP America Production Co. v. Burton, No. 05-669, the other case decided today, you can access the decision at this link and the oral argument transcript at this link.

Finally, you can access today's Order List at this link.

In early news coverage, The Associated Press provides reports headlined "Court: Buttons at Trial Didn't Bias Jury" and "High Court Rules on Oil, Gas Royalties."
Posted at 10:14 AM by Howard Bashman



Please help "How Appealing" attain second place in the voting for the "Best Law Blog" in The 2006 Weblog Awards: "The Volokh Conspiracy" has an insurmountable and well-deserved 600+ vote lead in first place, while some British law firm's blog that I honestly had never heard of until now is in a pitched fight for second place with yours truly.

At midnight, "How Appealing" had around a 20-vote lead for second place. But because our colleagues across the pond get to their desks a few hours earlier than we here in the good ol' U.S. of A., the British law blog overnight managed to jump out to a 30 to 35 vote lead in the race for second place.

There's nothing like a silly popularity contest -- especially one lacking both a tangible prize and an awards ceremony -- to get the competitive juices flowing. So please vote for "How Appealing" so that this blog can regain second place. You can vote once per computer, per web browser, every 24 hours. Simply click here to access the page where you can cast your vote.
Posted at 08:45 AM by Howard Bashman



Scalia and Kennedy bobblehead dolls up for auction at eBay: An acquaintance who was the author of the one act play "Bobblehead Scalia and the never-ending search for marital bliss" has decided to opt for marital bliss after all by putting up for auction two U.S. Supreme Court Justice bobblehead dolls from The Green Bag.

The offering for the Justice Antonin Scalia bobblehead begins, "Nothing says 'Merry Christmas' like the gift of hardheaded conservative jurisprudence, in convenient desktop bobble form."

And the offering for the Justice Anthony M. Kennedy bobblehead begins, "We've finally solved the sweet mystery of life: Turns out, it's the Justice Kennedy Bobblehead Doll!"

Both auctions are scheduled to end this Friday.
Posted at 08:35 AM by Howard Bashman



"Town shrugs off concerns; Staff cuts, lack of strong fence not a big worry": Yesterday's issue of The Colorado Springs Gazette contained an article that begins, "You can’t see Supermax from the highway, but everyone knows it’s there. Hidden by the rolling slopes of the high desert 50 miles south of Colorado Springs, the prison houses 400 of the most dangerous inmates in the federal prison system -- psychopaths, gang leaders, Mafia bosses, multiple-murderers and terrorists, including Eric Rudolph, Ramzi Yousef and Zacarias Moussaoui."

And yesterday's newspaper also contained an article headlined "Bomber expresses no remorse for victims" that begins, "Unrepentant, Olympics and abortion clinic bomber Eric Rudolph sits in his cell at Supermax complaining about being treated like a 'terrorist' and composing 'satires' mocking his victims."
Posted at 08:23 AM by Howard Bashman



"Hostage: I talked him out of killing me; WWII veteran tried to save lawyer, had 'long' talk with gunman." This article appears today in The Chicago Sun-Times, along with articles headlined "'It'll be tough,' longtime lawyer says; Phillips was at dentist when tragedy unfolded"; "SWAT cop shot gunman from 25 yards away": and "Train station, offices beef up security." In addition, Felicia Dechter has an essay headlined "Victim's widow mourns: 'We were real partners'; Felicia Dechter, a reporter and longtime friend, talks to the wife of a victim of Friday's shootings."

And The Chicago Tribune today reports that "Family saw anger build; Killer thought he had been conned, they say."
Posted at 08:20 AM by Howard Bashman



"Jury pools can face probes in sensitive trials; Ryan case sparks move to avoid bias, scandal": The Chicago Tribune today contains an article that begins, "Hoping to avoid the jury controversy that threatens to overturn former Gov. George Ryan's conviction, federal court officials in Illinois have started conducting criminal background checks on prospective jurors in certain higher-profile trials."
Posted at 08:14 AM by Howard Bashman


"Texas is sending fewer to death row": The Los Angeles Times contains this article today.
Posted at 08:05 AM by Howard Bashman


"Scalia Speaks in Ames, Scolds Aggressive Student": This article appears in the current issue of The Harvard Law Record.
Posted at 08:00 AM by Howard Bashman


"A well-meaning end to discrimination": Today in The Boston Globe, Cathy Young has an op-ed that begins, "Depending on who you talk to, the passage of Proposal 2 in Michigan last month was either a great victory for freedom and equal rights or a disastrous setback for minorities and women. The ballot measure, known as the Michigan Civil Rights Initiative, attracted little national attention after 58 percent of voters approved it Nov. 7."
Posted at 07:55 AM by Howard Bashman


"Defamation on the Internet: With Courts Strongly Supporting Website Users' Immunity from Suit, Should Would-Be Plaintiffs Resort to ReputationDefender.com?" Julie Hilden has this essay online today at FindLaw.
Posted at 06:42 AM by Howard Bashman


"The Right to a Trial: Should dying patients have access to experimental drugs?" Jerome Groopman has this article in the December 18, 2006 issue of The New Yorker.
Posted at 06:40 AM by Howard Bashman


"Blawg Review #87": Available here, at "Legal Literacy."
Posted at 06:35 AM by Howard Bashman


Sunday, December 10, 2006

In second place! There's nothing like a silly popularity contest to get the competitive juices flowing. As of this moment, "How Appealing" has jumped back into second place in the voting for "Best Law Blog" in The 2006 Weblog Awards, edging out at least for the moment some law blog operated by a law firm located in the United Kingdom.

In first place with a very comfortable lead -- having more than three-times as many votes as the second place blog -- is "The Volokh Conspiracy." So, instead of wasting a vote for that fine blog -- which seems assured to finish first no matter what, as well it should -- vote for "How Appealing" so that this blog can retain second place.

You can vote once per computer, per web browser, every 24 hours. Simply click here to access the page where you can cast your vote.

Update: Overnight, my British rival for second place in the voting jumped out to a 40-vote lead, so please be sure to vote early and often today. Meanwhile, "The Volokh Conspiracy" continues to hold a very comfortable lead in first place.
Posted at 10:23 PM by Howard Bashman



"Crosses crusade handed 2nd defeat; Federal judge rejects Weinbaum suit aginst Las Cruces Public Schools": Yesterday's issue of The Las Cruces Sun-News contained this article. You can access last week's ruling of the U.S. District Court for the District of New Mexico at this link. Thanks to "Religion Clause" for the pointer.
Posted at 08:04 PM by Howard Bashman


"Adulterer wins the right to privacy; Celebrity figure protected by law; Husband's desire for revenge blocked": This article appeared last Tuesday in The Times of London, along with an article headlined "End of the affair for kiss-and-tell stories?"

The Telegraph (UK) reported last Tuesday that "Judge bans husband from naming adulterer."

The Daily Mail (UK) last Wednesday contained an essay by Melanie Phillips entitled "Amorality and a ruling that protects adulterers and punishes victims."

And today in The Observer (UK), Peter Preston has an op-ed entitled "We mustn't tell you about ... Oh, you know it all already." The essay concludes, "So the 'privacy' involved here is the narrow relief of not seeing something in print. That's dotty: it exalts whisperers and makes the law a most evident ass. We can't tell you what you already know, because ... well, because we can't. Judges often take too much stick from an aggrieved, astonished press. Not this time, alas."
Posted at 05:15 PM by Howard Bashman



"Courts - Status report on the availability and citation of not-for-publication opinions, at both the state and federal levels." Marcia Oddi has this post at "The Indiana Law Blog."
Posted at 02:33 PM by Howard Bashman


"In Re: Life or Death." Yesterday in The Wall Street Journal, Law Professor Randy E. Barnett had an op-ed (pass-through link) that begins, "Much discussion of 'judicial restraint' or deference overlooks a crucial question: deference to whom -- the legislature or the individual? This fundamental question is posed by two potentially landmark cases." (Via "The Volokh Conspiracy").
Posted at 02:18 PM by Howard Bashman


Please vote for "Best Law Blog" in The 2006 Weblog Awards: The polls opened Thursday evening and will remain open through December 15th. "How Appealing" is currently in third place out of ten contestants. Those who believe in the primacy of international law will be delighted to learn that the blog currently in second place, by a quite slender margin, is operated by a law firm located in the United Kingdom.

You can vote once per computer, per web browser, every 24 hours. Simply click here to access the page where you can cast your vote.

By the way, "The Volokh Conspiracy" already appears certain to win first place, having established a well deserved huge lead over every other law blog finalist in this popularity contest.
Posted at 02:15 PM by Howard Bashman



"Book ties enemy combatant to L.A. plot; Ashcroft writes that a man now in prison had a role in planned West Coast strikes; The charge mystifies some": Today in The Los Angeles Times, Richard A. Serrano has an article that begins, "Ali Saleh Kahlah al-Marri is the last enemy combatant imprisoned in this country. Yet four years after his arrest, government officials still cannot agree on what threat he posed."
Posted at 02:04 PM by Howard Bashman


"Disputed nominee Myers has an Abramoff problem": Today in The Los Angeles Times, Henry Weinstein has an article that begins, "Five years ago, high-powered Washington lobbyist Jack Abramoff went to a dinner with top officials of the Interior Department, representatives of the White House and leaders of the National Mining Assn. That Georgetown dinner has now come back to haunt one of the guests -- William G. Myers III, who was the Interior Department's top lawyer at the time and for the last three years one of President Bush's most controversial nominees for a federal judgeship."
Posted at 01:58 PM by Howard Bashman


"Race-Based Programs May Face Final Curtain in Supreme Court; Civil rights pioneers fear they're witnessing the dismantling of a half-century of jurisprudence": Tony Mauro will have this article (free access) in Monday's issue of Legal Times.

And today in The St. Petersburg Times, reporter Thomas C. Tobin has an essay entitled "Get ready for school resegregation; Listening to the Supreme Court argue an important schools case, I realized no matter the outcome, some schools here will certainly resegregate."
Posted at 01:50 PM by Howard Bashman



"When Winning Feels a Lot Like Losing": Today in The New York Times, business columnist Gretchen Morgenson has an interesting essay (TimesSelect temporary pass-through link) that begins, "If you're an investor who has filed an arbitration case against your stockbroker, you would be wise to steel yourself for an irrational and unjust outcome."

Morgenson's essay tells the story of an 86-year-old woman who sued Morgan Stanley Dean Witter for $281,729 in investment losses. Morgenson writes that the arbitration "ended in a truly bizarre twist: she was awarded damages of $5,000 but was ordered to pay $10,350 in fees even though an arbitration panel found Morgan Stanley liable for her losses."

Meanwhile, at "Ideoblog," Law Professor Larry Ribstein (perhaps the blogosphere's leading self-anointed Gretchen Morgenson watchdog) has this post about her column today.
Posted at 01:35 PM by Howard Bashman



"The Judiciary: Your Worst Suspicions Confirmed." Today in The Washington Post, Pulitzer Prize-winning historian David J. Garrow has this review of Benjamin Wittes's new book, "Confirmation Wars: Preserving Independent Courts in Angry Times."

On a related note, David Lat at the "Above the Law" blog on Friday had this post chronicling his recent lunch with Wittes.
Posted at 01:23 PM by Howard Bashman



"To him, Murrah blast isn't solved; Lawyer investigating 1995 Oklahoma City attack says loose ends indicate likelihood of neo-Nazi connections": This article appears today in The Chicago Tribune.
Posted at 12:08 PM by Howard Bashman


"Victims' families, friends grapple with law office tragedy": The Chicago Tribune today contains this article, along with an article headlined "Gunman felt cheated over his invention."

And The Chicago Sun-Times today contains articles headlined "'I believe he just snapped'; High-rise gunman became convinced attorney had stolen his idea, family says"; "News of victim's death 'like being hit by a thunderbolt'"; "Patent lawyers mourn colleagues' deaths; 'It's just a true tragedy and loss to us all'"; and "'Are you an attorney?' 'No' may have saved woman." In addition, Felicia Dechter has an essay entitled "Killing 'devastating' to longtime friend; Reporter, victim knew each other for decades."
Posted at 12:05 PM by Howard Bashman



"The sesquipedalian septuagenarian: That is, Judge Bruce M. Selya of the First Circuit Court of Appeals, who at 72 continues to write perhaps the wittiest and wordiest opinions in the federal judiciary." This article appears today in the Ideas section of The Boston Globe.

In March 2004, First Circuit Judge Bruce M. Seyla participated in this blog's "20 questions for the appellate judge" feature. You can access his interview at this link.

Those in search of the definition of "sesquipedalian" can find the answer here.
Posted at 08:40 AM by Howard Bashman



Saturday, December 09, 2006

"Witnessing Execution a Matter of Duty, Choice": Sunday's issue of The Washington Post will contain this front page article.
Posted at 11:58 PM by Howard Bashman


"Religion for Captive Audiences, With Taxpayers Footing the Bill": This lengthy article will appear Sunday in The New York Times.
Posted at 08:35 PM by Howard Bashman


"Brown v. Board of Education, Second Round": Adam Liptak will have this article Sunday in the Week in Review section of The New York Times.
Posted at 08:33 PM by Howard Bashman


"Police: Chi. Gunman Angry Over Invention." The Associated Press provides a report that begins, "The gunman who fatally shot three people in a law firm's high-rise office before he was killed by police felt cheated over an invention, authorities said Saturday."
Posted at 03:40 PM by Howard Bashman


"Pay-raise fallout fails to dim interest in Pa. Supreme Court": The Associated Press provides this report.
Posted at 01:48 PM by Howard Bashman


"Judge Plans Double Appeal; Ex-Chief Justice Not Going Quietly": Today in The Hartford Courant, Lynne Tuohy has an article that begins, "Former Chief Justice William J. Sullivan will appeal both his 15-day suspension and the findings last month by the Judicial Review Council that he violated the code of ethics in secretly withholding release of a controversial ruling. The appeal will prolong an episode that prompted an unprecedented crisis of confidence in the judiciary and created yet another uncomfortable chapter for Sullivan's colleagues on the high court."

And in somewhat related news, The Connecticut Post reports today that "Justice search widens; Rell to look past judges on state's highest court."
Posted at 01:40 PM by Howard Bashman



"MHSAA's latest appeal denied in Circuit Court": The Grand Rapids Press yesterday contained an article that begins, "For the second time in two years, the U.S. 6th Circuit Court of Appeals in Cincinnati denied the Michigan High School Athletic Association's appeal for an en banc hearing -- one before the entire panel of 13 judges -- to keep from having to switch when six of its sports seasons are played. Now, for the next round of this civil lawsuit, the MHSAA is expected to file a petition to the U.S. Supreme Court to see if it will consider hearing another appeal."
Posted at 01:35 PM by Howard Bashman


"Government wants Hamdan case dismissed": Lyle Denniston has this post at "SCOTUSblog."
Posted at 12:54 PM by Howard Bashman


"SJC rules on parental rights of lesbians; Woman is faulted for not adopting": This article appears today in The Boston Globe.

You can access yesterday's ruling of the Supreme Judicial Court of Massachusetts at this link.
Posted at 10:44 AM by Howard Bashman



"Sen. Brownback May Lift Hold on Nominee": The Associated Press provides a report that begins, "Kansas Sen. Sam Brownback, a potential presidential candidate, said Friday he would lift his hold on a federal judicial nominee if she agrees to step aside from any case dealing with same-sex unions."
Posted at 10:40 AM by Howard Bashman


Please vote for "Best Law Blog" in The 2006 Weblog Awards: The polls opened Thursday evening and will remain open through December 15th. "How Appealing" is currently in third place out of ten contestants. Those who believe in the primacy of international law will be delighted to learn that the blog currently in second place is operated by a law firm located in the United Kingdom.

You can vote once per computer, per web browser, every 24 hours. Simply click here to access the page where you can cast your vote.
Posted at 09:24 AM by Howard Bashman



"Ex-detainees seek right to sue Rumsfeld in abuse case; As noncitizens, the nine might not be allowed to pursue their claims in U.S. court, a judge suggests": This article appears today in The Los Angeles Times.

The New York Times reports today that "Former Detainees Argue for Right to Sue Rumsfeld Over Torture."

And The Washington Post reports that "U.S. Denies Liability in Torture Case; Attorney Urges Dismissal of Detainee Suit Against Officials."
Posted at 09:18 AM by Howard Bashman



"Ignore and appoint: Recess appointments rob the Senate of its advice-and-consent role and violate the spirit of the Constitution." The Los Angeles Times today contains this editorial.
Posted at 09:15 AM by Howard Bashman


"Man kills 3 in law office; Gunman dies in hostage standoff": This article appears today in The Chicago Tribune, along with an article headlined "Commuters caught in chaos, panic." In addition, the newspaper offers even more recently-issued news updates headlined "Law firm rampage has officials puzzled; Gunman's motive, how he got past security questioned" and "2 attorneys made marks beyond firm."

The Chicago Sun-Times today contains an article headlined "Rush-hour mayhem; Gunman with grudge kills 3 in law firm" that begins, "Zeroing in from about 25 yards away, a police sharpshooter Friday killed a gunman who had fatally shot three workers in a downtown patent law firm in a dispute over a toilet seat invention." The newspaper also contains related articles headlined "'He was always a smiling face'" and "Worker: 'I was just hysterical.'"
Posted at 09:12 AM by Howard Bashman



"Commute This Sentence: A clemency case not even President Bush can ignore -- or can he?" The Washington Post today contains an editorial that begins, "The Supreme Court this week declined to review the case of Weldon Angelos, leaving in place his obscene sentence of 55 years in prison for small-time marijuana and gun charges. The high court's move is no surprise; the justices have tended to uphold draconian sentences against constitutional challenge. But it confronts President Bush with a question he will have to address: Is there any sentence so unfair that he would exert himself to correct it?"
Posted at 09:03 AM by Howard Bashman


"Pataki Goes Far Afield to Find Political Allies for the City Appellate Bench": This article appears today in The New York Times.
Posted at 09:00 AM by Howard Bashman


Available online from law.com: An article reports that "Calif. High Court Weighs Whether Trickery OK in Research."

And the brand new installment of my "On Appeal" column is headlined "Have 7th Circuit Judges Gone Off the Deep End?" My essay concludes:

If the 7th Circuit desires that the appellate record better reflect the precise basis for the federal district court's subject matter jurisdiction, those appellate judges should consider cracking the whip on their federal district court colleagues. It is the federal district court judges who, in the first instance, have the ability to ensure that the record is absolutely clear concerning what facts and allegations do or do not give rise to the district court's subject matter jurisdiction.

I continue to enjoy the intellect and writing of Judge Posner and Chief Judge Easterbrook, but sometimes, to use Judge Posner's own words, they do cross the line and become fusspots and nitpickers when the question arises of berating or sanctioning attorneys for minor and inconsequential transgressions.

The focus of my essay is the Seventh Circuit's recent ruling in Smoot v. Mazda Motors of America, Inc., a decision that I first commented on in a post you can access here.
Posted at 08:50 AM by Howard Bashman


"Senate vote gives Jordan appellate seat": The News Journal of Wilmington, Delaware today contains an article that begins, "The U.S. Senate on Friday confirmed Kent A. Jordan to a seat on the U.S. Court of Appeals for the 3rd Circuit, Delaware's congressional delegation announced."

And law.com reports that "Senate Confirms Jordan to 3rd Circuit Replacing Senior Judge Jane Roth."
Posted at 08:40 AM by Howard Bashman



Friday, December 08, 2006

"High court says driving slow not probable cause": The Nevada Appeal of Carson City today contains an article that begins, "The Nevada Supreme Court ruled Thursday simply driving below the speed limit isn't enough reason legally for a police officer to pull someone over."

You can access yesterday's ruling of the Supreme Court of Nevada at this link.
Posted at 07:38 PM by Howard Bashman



"Rumsfeld's Detainee Liability Case Advances": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "All Things Considered."
Posted at 07:35 PM by Howard Bashman


"Judge Weighs Torture Claim Vs. Rumsfeld": The Associated Press provides a report that begins, "A federal judge on Friday appeared reluctant to give Donald H. Rumsfeld immunity from torture allegations, yet said it would be unprecedented to let the departing defense secretary face a civil trial."
Posted at 04:03 PM by Howard Bashman


"Bar fights court's 'invisible' rulings; Appellate findings should be accessible, Ariz. lawyers say": Today in The Arizona Daily Star, Howard Fischer has an article that begins, "Last month, the state Court of Appeals issued a 54-page ruling on the controversial issue of whether state lawmakers are constitutionally required to provide more cash to certain public schools. To the public affected, however, the decision was essentially invisible because the three judges issued it as a 'memorandum decision.' That designation means the legal reasoning and conclusions reached cannot be cited as precedent in future cases. It also means the rulings are not available to the public on the court's Web site. The only way to find out that the judges ruled at all is to go to the court's office and manually go through those files. And there are a lot of them. About nine out of every 10 appellate-court rulings are designated as memo decisions."

This exact issue also exists with the Superior Court of Pennsylvania. I wrote about it the June 2005 installment of my "Upon Further Review" column for The Legal Intelligencer headlined "In The Quest For Access To Non–Precedential Decisions, Don't Overlook The Possibility Of A Legislative Solution."
Posted at 03:45 PM by Howard Bashman



Vote for "Best Law Blog" in The 2006 Weblog Awards: The polls opened yesterday evening, and "How Appealing" is currently in third place out of ten contestants. The first place blog doesn't even yet have 500 votes in its favor, so the contest remains anybody's game. You can vote once per computer, per web browser, every 24 hours. Simply click here to access the page where you can cast your vote.
Posted at 03:35 PM by Howard Bashman


The Seventh Circuit provides no good news today for those particularly averse to paying taxes: On behalf of a unanimous three-judge panel, Circuit Judge Richard A. Posner today issued an opinion that begins, "Just five days before the expiration of the 10-year statute of limitations, the government filed a complaint in federal district court against Thomas McLaughlin for unpaid income taxes of almost $3 million, including penalties and interest." Yet, for reasons explained in the decision, the federal government failed to effectuate service of the complaint on McLaughlin until 271 days later. Today's Seventh Circuit ruling affirms the district court's rejection of McLaughlin's argument that belated service of the complaint should allow him to avoid having to pay the tax debt, all of which he concedes owing.

And in a separate ruling issued today, Circuit Judge Terence T. Evans issued an opinion that begins:

Benjamin Franklin said it in 1789: "In this world, nothing can be said to be certain except death and taxes." Glen Murphy, a chiropractor from the posh Waukesha County (Wisconsin) suburb of Elm Grove, didn't agree with the taxes part of Franklin's statement. Inappropriately acting on that belief earned Murphy an indictment for filing false income tax returns (seven counts) and willfully not filing any at all (three counts).
Today's ruling affirms Murphy's conviction on all counts following a jury trial and resulting sentence of 41 months of imprisonment.
Posted at 03:28 PM by Howard Bashman


"Minimum Wage: The $1.50 Attorney Fee." That was the title of the February 6, 2006 installment of my "On Appeal" column for law.com. I'm reminded of that column because today the U.S. Court of Appeals for the Seventh Circuit issued a decision upholding a $1.50 attorney's fee under the Prison Litigation Reform Act for representing a prisoner who recovered a $1.00 nominal damages award.
Posted at 03:10 PM by Howard Bashman


The U.S. Senate has confirmed U.S. District Judge Kent A. Jordan (D. Del.) to serve on the U.S. Court of Appeals for the Third Circuit: The roll call vote on the confirmation hasn't appeared online yet, but earlier today a cloture motion passed by a vote of 93-0. The confirmation leaves the Third Circuit, which has 14 authorized active judgeships, with three vacancies.

Update: The Senate's web site now reveals that Judge Jordan's confirmation to the Third Circuit occurred by a vote of 91-0.
Posted at 02:40 PM by Howard Bashman



"Bible fight not just local anymore; Out-of-town lawyers are helping both sides of case at appeals hearing": The Houston Chronicle today contains an article that begins, "The battle over a Bible displayed outside the former Harris County civil courts building had a distinctly local flavor. Randall Kallinen, a local lawyer and head of the Houston chapter of the American Civil Liberties Union, represented real estate broker Kay Staley and convinced a federal district judge that it was unconstitutional for the county to allow the display. Lawyers from the county attorney's office represented the county. But the appeals hearing next month before the full 5th U.S. Circuit Court of Appeals will have a different feel, with high-powered out-of-town lawyers working for both sides in a case that could set precedents on church-state issues."

In September, I discussed the case in an installment of my "On Appeal" column for law.com headlined "Monument at Houston Courthouse Tests the Limits of Ten Commandments Rulings."
Posted at 12:40 PM by Howard Bashman



"'Beautiful Braniac' to Join HLS": The Harvard Crimson today contains an article that begins, "A leading constitutional theorist who was once named the 'Most Beautiful Brainiac' by New York Magazine has accepted an offer to join Harvard Law School’s faculty next fall, the school announced yesterday."

Harvard Law School's official announcement is titled "Noah Feldman to join Harvard Law faculty."
Posted at 12:15 PM by Howard Bashman



But will the inmates receive internet access, too? The Toronto Globe and Mail today contains an article headlined "Top court upholds inmate's computer access" that begins, "The B.C. government may have to purchase laptops or provide increased computer access for alleged Hells Angels, Inderjit Singh Reyat and other inmates to ensure they have fair trials, as a result of a court decision yesterday."
Posted at 11:20 AM by Howard Bashman


Question of whether the crosses should remain in the logo of the City of Las Cruces, New Mexico heads to the U.S. Court of Appeals for the Tenth Circuit: The Las Cruces Sun-News reports today that "City crosses lawsuit appealed" (via "Religion Clause").

My most recent earlier coverage of this case can be accessed here.
Posted at 11:10 AM by Howard Bashman



"N.J. court upholds eminent domain; It said preserving open space is an adequate reason to take private property": This article appears today in The Philadelphia Inquirer.

And The Newark Star-Ledger reports today that "N.J. justices say towns can seize developers' land; Ruling expands eminent domain."

My earlier coverage appears at this link.
Posted at 11:04 AM by Howard Bashman



"Judge Holder must pay his own attorney's fees, state Supreme Court rules; The judge was cleared of misconduct charges last year but owes $1.8-million in legal bills": The St. Petersburg Times today contains an article that begins, "Circuit Judge Gregory Holder beat a plagiarism charge but remains on the hook for his attorney's fees, the Florida Supreme Court ruled Thursday."

You can access yesterday's ruling of the Supreme Court of Florida at this link.
Posted at 11:00 AM by Howard Bashman



"Fumo calls grand-jury judge biased; In a Supreme Court filing, Fumo said he and the judge overseeing the inquiry into him have a history of animosity": This article appeared yesterday in The Philadelphia Inquirer.
Posted at 10:32 AM by Howard Bashman


"Nudist colony to reinstate 'loner'; Man gets $12,000 for lost reputation, opportunity": The Victoria Times Colonist today contains an article that begins, "A Vancouver Island nudist, who was ejected from his colony for failing to be sociable with the other nudists, has been ordered reinstated. In a B.C. Supreme Court judgment yesterday, Justice Sunni Stromberg-Stein ordered Jerry Grenier be reinstated as a probationary member in the Sol Sante Club."
Posted at 10:25 AM by Howard Bashman


"Bandits steal car and strand Brazil's Supreme Court chief justice": The Associated Press provides a report that begins, "Armed men held up the chief justice of Brazil's Supreme Court and stole her car, leaving her standing on the side of a highway, police said Friday."

And Reuters reports that "Brazil's top judges robbed on Rio highway."
Posted at 10:15 AM by Howard Bashman



"High court to review double murder case; Defense says key witness not allowed to testify in 3rd trial": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "The U.S. Supreme Court agreed Thursday to review the case of a convicted double murderer from Solano County who says the jury should have heard from a woman who reported that her cousin confessed to the 1992 slayings."
Posted at 10:08 AM by Howard Bashman


"A Woman Of Firsts: The first female Supreme Court justice Sandra Day O'Connor recently served as the only female in the Iraq Study Group." CBS News has posted online at this link Katie Couric's interview yesterday of retired U.S. Supreme Court Justice Sandra Day O'Connor.
Posted at 09:08 AM by Howard Bashman


"Lame-duck House urged to OK judge security bill": The Chicago Tribune contains this article today. According to the article, "As passed by the Senate, the proposed act would create a federal crime, punishable by up to five years in prison, of the on-line posting of restricted personal information about federal judges with the intent of harming or threatening them or their family members."

You can access the text of the proposed legislation via this link, while the internet posting-related provision is here.
Posted at 09:05 AM by Howard Bashman



"Ex-Detainees Seek to Sue U.S. Officials; 9 Former Prisoners Want Rumsfeld and Others Held Responsible for Torture": This article appears today in The Washington Post.

And The Associated Press reports that "Rumsfeld Wants Torture Case Dismissed."
Posted at 08:50 AM by Howard Bashman



"Happy Birthday. Vacate Your Office." The New York Times today contains an article that begins, "As November drew near, A. Paul Victor, who spent decades at the law firm Weil, Gotshal & Manges defending corporate clients, kept a close eye on the calendar. For Mr. Victor, the dreaded date, Nov. 6, was his 68th birthday -- the mandatory retirement age at the law firm."
Posted at 08:45 AM by Howard Bashman


"High court to weigh ban on price fixing; A City of Industry firm challenges a 95-year-old rule that forbids setting minimum retail prices": David G. Savage has this article today in The Los Angeles Times.
Posted at 06:33 AM by Howard Bashman


Thursday, December 07, 2006

"Antitrust Policy Ambiguity to Be on Justices' Docket": Linda Greenhouse will have this article Friday in The New York Times.

Patti Waldmeir of Financial Times reports that "Supreme Court to hear Wall St appeal."

And The Flower Mound Messenger reports that "Case involving FM shop heads to Supreme Court."
Posted at 11:15 PM by Howard Bashman



Please cast your vote for "Best Law Blog" in the 2006 Weblog Awards: You can vote for "How Appealing" or any other of the finalists by clicking here and completing the ballot. You can vote once per day on each separate computer and separate web browser. If you choose to vote for this blog -- conveniently located at the top of the ballot -- you have my thanks in advance.
Posted at 07:54 PM by Howard Bashman


The Associated Press is reporting: Now available online are articles headlined "'Survivor' winner Richard Hatch appeals his conviction" and "No Dismissal for Killer of Abortion Doc."
Posted at 07:33 PM by Howard Bashman


In today's edition of The Providence Journal: An article headlined "U.S. appeals court to hear Indian case" begins, "The full 1st U.S. Circuit Court of Appeals has agreed to hear a case involving 31 acres of Narragansett Indian land in Charlestown."

And an article headlined "Question for the court" begins, "The Rhode Island Supreme Court is being asked to decide whether Family Court can hear a divorce case involving two Providence women who married in Massachusetts."
Posted at 07:32 PM by Howard Bashman



"U.S.: Padilla's Time in Brig Irrelevant." The Associated Press provides this report.
Posted at 06:03 PM by Howard Bashman


"Iraq Study Group Insiders Speak Out": Retired U.S. Supreme Court Justice Sandra Day O'Connor was interviewed on today's broadcast of the public radio program "On Point." You can listen to the broadcast using either RealPlayer or Windows Media Player. The interview with Justice O'Connor begins just after the 27-minute mark of the broadcast.
Posted at 05:20 PM by Howard Bashman


"Top court to hear Wall St. firms' appeal on IPO": James Vicini of Reuters provides this report.

Reuters also reports that "Supreme court to review retail price precedent."

And Greg Stohr of Bloomberg News reports that "Investment Banks Get High Court Hearing on IPO Suit."
Posted at 04:55 PM by Howard Bashman



"Supreme Court Will Review Murder Cases": The Associated Press provides this report.
Posted at 04:54 PM by Howard Bashman


"Court hears case of car seller; At issue is 'For Sale' sign on vehicle in Glendale": The Cincinnati Enquirer today contains this article reporting on a case that was reargued en banc yesterday before the U.S. Court of Appeals for the Sixth Circuit.

Back on May 19, 2006, I covered the original three-judge panel's ruling in this case in a post titled "Divided three-judge Sixth Circuit panel rejects attorney's commercial speech challenge to Village of Glendale, Ohio's ordinance prohibiting the display of 'for-sale' signs on a vehicle parked on a public street."
Posted at 03:25 PM by Howard Bashman



"Becoming What We Despise": At Truthdig, Robert Scheer has an essay that begins, "Jose Padilla, a U.S. citizen, has been tortured by his own government for the better part of three-and-one-half years, suffering years of systematic sensory deprivation documented in his attorneys' filings and supported by photos of the prisoner published this week by the New York Times."

My earlier coverage appears at this link.
Posted at 03:10 PM by Howard Bashman



"Blind Side: An argument for voluntary school integration that conservatives should like." Law Professor Kenji Yoshino has this jurisprudence essay online at Slate.
Posted at 03:00 PM by Howard Bashman


"Scope of 2nd Amendment's Questioned": The Associated Press provides a report that begins, "In a case that could shape firearms laws nationwide, attorneys for the District of Columbia argued Thursday that the 2nd Amendment right to bear arms only applies only to militias, not individuals."

The article reports on an oral argument that occurred today before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. According to that court's web site, the panel assigned to the case consists of "Judges Henderson, Griffith and Silberman."

In other coverage, Washington, DC's WTOP Radio reports that "Group Takes D.C. Gun Laws to Court."

And Robert A. Levy of the Cato Institute has had essays about the case entitled "Challenging the D.C. Gun Ban" and "A Woman's Right: One woman's fight to bear arms." Levy was listed as one of the attorneys for plaintiffs in the complaint that initiated the lawsuit that gives rise to today's appellate oral argument
Posted at 02:38 PM by Howard Bashman



"Court to rule on price fixing, 4 other cases": Lyle Denniston has this post at "SCOTUSblog."

And The Associated Press reports that "Supreme Court to Hear Stocks Lawsuit."

Update: The Order List that the U.S. Supreme Court issued today can be accessed here.
Posted at 02:33 PM by Howard Bashman



Replacing U.S. District Judge Royce C. Lamberth in the Indian Trust litigation known as Cobell v. Kempthorne is U.S. District Judge James Robertson: The chief judge of the U.S. District Court for the District of Columbia issued this order today.

My earlier coverage of the D.C. Circuit's decision from July 2006 ordering that the case be reassigned to a new federal district judge can be accessed here. Today's reassignment order states that the D.C. Circuit's mandate issued on Monday of this week.

The plaintiffs in the litigation maintain a web site devoted to the case.
Posted at 02:30 PM by Howard Bashman



"N.J. court backs eminent domain for open space": The Philadelphia Inquirer provides a news update that begins, "The New Jersey Supreme Court ruled this morning that Mount Laurel acted properly when it seized a developer's land in order to preserve open space."

You can access today's ruling of the Supreme Court of New Jersey at this link.
Posted at 02:20 PM by Howard Bashman



"Partial Solution: The Roberts Court's coming abortion bargain." Law Professor Jeffrey Rosen has this essay (pass-through link) in the December 11, 2006 issue of The New Republic.
Posted at 11:45 AM by Howard Bashman


"Hein v. Freedom from Religion Foundation: Some Background and Initial Thoughts." Professor Melissa Rogers has this interesting post at her eponymous blog about one of the cases in which the U.S. Supreme Court granted review last Friday.

My initial coverage of that cert. grant can be accessed here.
Posted at 11:38 AM by Howard Bashman



"Senate votes to bolster security of judges": Reuters provides a report that begins, "Security in America's courtrooms would be bolstered in response to attacks on judges in recent years under a measure approved on Wednesday by the U.S. Senate."
Posted at 11:33 AM by Howard Bashman


"Legislators may reconsider suspending habeas corpus for detainees": McClatchy Newspapers provide a report that begins, "President Bush's victory in getting the rules he wanted to try suspected terrorists could be diminished. The top Republican on the Senate Judiciary Committee signaled this week that he'll join prominent Democrats in seeking to restore legal rights to hundreds of suspected terrorists confined at Guantanamo Bay, Cuba, and elsewhere."
Posted at 11:30 AM by Howard Bashman


"Laughing all the way to the (en) banc after Booker": Law Professor Doug Berman has this post today at his "Sentencing Law and Policy" blog.
Posted at 11:15 AM by Howard Bashman


"Specter gets last licks as Senate Judiciary Committee chair; Grilling of FBI chief targets terror wiretaps": The Pittsburgh Post-Gazette today contains an article that begins, "The lights went out yesterday on Sen. Arlen Specter's chairmanship of the Senate Judiciary Committee -- literally."
Posted at 11:14 AM by Howard Bashman


"Myers grilled on Abramoff ties": The Denver Post today contains an article that begins, "A controversial Bush administration judicial nominee is facing additional questions about whether he had any contact with now-convicted lobbyist Jack Abramoff." The newspaper has also posted online, in PDF format, two related documents here and here.

And on Sunday, The Denver Post published an article headlined "Nominee attended Abramoff party; The court pick has said he had no contact with the convicted lobbyist, but his schedule hints otherwise."
Posted at 11:00 AM by Howard Bashman



"A problem bigger than busing": Yesterday in The Chicago Tribune, columnist Clarence Page had an op-ed that begins, "Affirmative action is on trial at the U.S. Supreme Court."
Posted at 08:40 AM by Howard Bashman


"Antiabortion measure falls short in House; Conservatives hoped for a symbolic 'yes' vote on the fetal pain bill": This article appears today in The Los Angeles Times.

And The New York Times reports today that "Anti-Abortion Bill Stalls; Session Nears End."
Posted at 08:33 AM by Howard Bashman



"Two states, big lawyers, one high-powered divorce; Texas high court hears billionaires' fight over whether local or California judge sets alimony": The Houston Chronicle contains this article today.
Posted at 08:22 AM by Howard Bashman


"Nevada judges can keep raising funds; The state's high court decides against one of several proposals to reform the judiciary": This article appears today in The Los Angeles Times.
Posted at 08:20 AM by Howard Bashman


"S.D. judge hands victory to medical marijuana advocates; Ruling rejecting county suit upheld": The San Diego Union-Tribune today contains an article that begins, "A Superior Court judge refused to overturn California's medical marijuana laws yesterday, upholding last month's preliminary ruling that rejected San Diego County's lawsuit against the state. Judge William R. Nevitt Jr. ruled that state law enforcement officials are not obligated to arrest and prosecute people who violate federal laws." I have uploaded a copy of yesterday's ruling at this link.
Posted at 08:15 AM by Howard Bashman


"Rhode Island courts face new frontier: gay divorce." This article appears today in The Los Angeles Times.
Posted at 08:05 AM by Howard Bashman


"A day of prayers for Kamehameha Schools faithful": The Honolulu Advertiser today contains an article that begins, "As prayerful thanks were offered up yesterday for a 9th Circuit Court of Appeals ruling that upheld Kamehameha Schools' century-old admissions policy favoring Native Hawaiians, some thoughts turned to building stronger legal barriers to future challenges against that controversial policy."
Posted at 07:50 AM by Howard Bashman


"Democrats Set to Press Bush on Privacy and Terrorism": The New York Times today contains an article that begins, "Leading Senate Democrats put the Bush administration on notice Wednesday that they intended to press for a fuller accounting on a wide range of counterterrorism programs, including wiretapping, data-mining operations and the interrogation and treatment of detainees."
Posted at 07:44 AM by Howard Bashman


"State of the Unions: Should you pay for someone else's opinions? A teachers union think so." Stephen Moore has this op-ed today in The Wall Street Journal. According to the op-ed, "The case has now been bumped up to the U.S. Supreme Court, which will hear oral arguments in January--in what could be the most important First Amendment decision in years."
Posted at 06:50 AM by Howard Bashman


"Federal Judges Order New Oral Arguments In Lawmakers' Case": Today in The New York Sun, Josh Gerstein has an article that begins, "A federal appeals court considering a First Amendment dispute between two congressmen has ordered an unusual second set of oral arguments before the court's full bench."
Posted at 06:45 AM by Howard Bashman


"The Supreme Court Decides Whether Race-Based Pupil-Assignment Systems Are Constitutional": Edward Lazarus has this essay online at FindLaw.
Posted at 06:40 AM by Howard Bashman


Wednesday, December 06, 2006

"How Appealing" is a 2006 Weblog Awards Finalist in the "Best Law Blog" category: Of course, it's an honor just to be nominated. You can view all the finalists at this link. At some point in the not too distant future, the polls will open and you'll be able to vote for a winner.
Posted at 11:55 PM by Howard Bashman


"Case of the Dwindling Docket Mystifies the Supreme Court": Linda Greenhouse will have this article Thursday in The New York Times.
Posted at 11:47 PM by Howard Bashman


Available online from law.com: Justin Scheck reports that "Divided En Banc 9th Circuit Panel Favors Race Policy for Hawaiian School."

In other news, "More Judges Packing Pistols in Courtrooms; Despite more security, states pass laws allowing jurists to arm themselves."

And in news from Georgia, "Defense Team Vows Appeal on DA's Access to TV Feed; Lawyers complain that TV cameras could have picked up recess talks; professor calls issue 'relatively unprecedented.'"
Posted at 11:44 PM by Howard Bashman



"There was particularly hot competition in 2006 for the prize for judge of the year." So wrote David Pannick, QC, in an essay entitled "A chilli-hot year for whiny garbage" published yesterday in The Times of London.

The essay spawned civic pride down under, where the Australian Associated Press reported that "NZ lawyer wins 'bizarre conduct' award."
Posted at 11:40 PM by Howard Bashman



"No Parole for Judge in Sex Toy Case": The Associated Press provides a report that begins, "A former judge convicted of exposing himself while presiding over jury trials by using a sexual device under his robes was denied parole on Tuesday. The Oklahoma Pardon and Parole Board voted 5-0 against granting early release to former Judge Donald Thompson, who was sentenced to four consecutive one-year jail terms in August for indecent exposure. Prosecutors claimed Thompson used a device called a penis pump while presiding over trials between 2002 and 2003."

And The Tulsa World reports today that "Former judge is denied parole" (also available in PDF format).
Posted at 11:30 PM by Howard Bashman



"Human smuggler could get death; Convicted in his second trial over Victoria deaths, he may be first to die under '94 law": Harvey Rice had this article yesterday in The Houston Chronicle.
Posted at 08:05 PM by Howard Bashman


"Justice Grover Versus Justice Oscar: Scalia and Breyer sell very different constitutional worldviews." Dahlia Lithwick has this jurisprudence essay online at Slate.

I'm looking forward with interest to the addition of the missing word(s) to the final sentence of Dahlia's essay. That sentence currently reads: "He's confident [add missing word(s) here] will do that." I'm betting that the missing word is "time," but perhaps it's "newsweek" or "u.s. news & world report."

Update: The missing word was "history," which also happens to be the name of a magazine.
Posted at 05:58 PM by Howard Bashman



"Should US bills be 'blind friendly'? A federal judge ruled that the Treasury should change paper currency to make denominations easily identifiable by the blind." This article will appear Thursday in The Christian Science Monitor.
Posted at 05:55 PM by Howard Bashman


"Presidential Signing Statements": That's the subject of this week's broadcast of NPR's "Justice Talking." Guest on the program include current Senate Judiciary Committee Chairman Arlen Specter (R-PA); Boston Globe reporter Charlie Savage; and Harvard Law Professor Laurence H. Tribe. You can listen online using Windows Media Player, or download the podcast (mp3 format).
Posted at 05:20 PM by Howard Bashman


"Distinguishing Law From Ideology in Judicial Decisions": Today at "Balkinization," Brian Tamanaha has a post that begins, "In response to my recent post warning against Judge Posner’s pragmatic adjudication, a number of readers defended Posner as merely being honest about the reality that judging is substantially political." Brian's earlier very interesting post can be accessed here.
Posted at 03:55 PM by Howard Bashman


"Stevens: Flag Burning Change Not Needed." The Associated Press provides a report that begins, "Justice John Paul Stevens twice voted to outlaw burning the U.S. flag, in memorable dissents that emphasized the flag's great symbolic value. Now, however, the 86-year-old justice says there is no need to amend the Constitution to protect Old Glory."
Posted at 03:50 PM by Howard Bashman


En banc rehearing without en banc oral argument in a U.S. Court of Appeals: At the "Sentencing Law and Policy" blog, Law Professor Doug Berman today has a post in which he reprints a communication he received from another law professor who questions the Eighth Circuit's failure to hold en banc reargument of a sentencing law case, which the en banc court decided yesterday, even though the case had originally been orally argued before a three-judge panel of that court.

Moreover, according to the communication that Professor Berman has reprinted, the Eighth Circuit never released the three-judge panel's ruling. Instead, the case went en banc before any ruling from the three-judge panel issued.

The en banc court's disposition of the case, by a vote of 10-2, consists of an opinion of the court by one judge on the original three-judge panel and a dissent in which the other two judges from the original three-judge panel joined. Thus, one can infer that had the three-judge panel actually issued its decision, it would have been 2-1 in favor of the outcome opposite from that which the en banc court reached.

I'm going to address separately the questions of no issuance of the three-judge panel opinion and no occurrence of reargument before the en banc court.

My guess, based on what occurred in this case, is that the U.S. Court of Appeals for the Eighth Circuit is one of those federal appellate courts that internally circulates to all active judges every precedential decision before the decision is issued to the public and the parties.

One purpose of that pre-issuance circulation of proposed precedential decisions is to allow the remainder of the court's active judges to vote to take a case en banc before the three-judge panel's opinion issues. It is rare but not unheard of for this to happen.

In this particular Eighth Circuit case, one can assume that the original panel intended to reach by a 2-1 vote the opposite result from the result the en banc court ultimately reached. Moreover, one of the two judges in the majority on the original three-judge panel was a Senior Eighth Circuit Judge. If the proposed dissenting opinion presented a convincing case for why the majority was reaching an erroneous result, a majority of the court's active judges would have been well within their discretion to take the case en banc without first having the three-judge panel's opinion issue.

Allowing a decision that reaches an incorrect result to issue as a precedential ruling of a federal appellate court can have quite deleterious consequences, and there is no way to guarantee that the losing party (which here would have been the federal government) would have decided to move for rehearing en banc itself after receiving an adverse result from the three-judge panel. Accordingly, I have no conceptual difficulty with a case going en banc in the absence of any opinion having issued from the original three-judge panel initially assigned to decide the case.

Turning next to the question of whether the en banc court should have convened to hear oral argument in the case after rehearing en banc was granted, I begin with the proposition that cases typically go en banc because they present especially difficult questions. This probably accounts for why rehearing en banc is ordinarily accompanied by a new oral argument of the case before the en banc court.

Nevertheless, there is no requirement that rehearing en banc include a new oral argument of the case, and if the en banc court in a particular case does not perceive any benefit to be gained from holding oral argument before the en banc court, then the en banc court is entirely within its discretion in refusing to hold oral argument. The 10-2 vote of the en banc court in this case demonstrates that the en banc court did not perceive this to be a case that presented a close question in which oral argument was likely to be helpful.

Whether the en banc court was correct in that perception is beyond the scope of this post, but I think that experienced appellate judges are more than competent to figure out whether oral argument in a case is likely to be helpful or not. And, it almost goes without saying, convening an en banc court for oral argument is not the most convenient thing to do.

Finally, on the oral argument issue, several times each year the U.S. Supreme Court issues summary reversals of U.S. Court of Appeals decisions based solely on the certiorari briefing without any oral argument or merits briefing. If the Court that is the final arbiter of federal law can overturn federal appellate court rulings without the benefit of either merits briefs or oral argument, then I see no problem in having an en banc federal appellate court decide a case based solely on the appellate briefs submitted to the panel if the appellate court believes those briefs provide a sufficient basis for decision.

I can understand why the party that lost the case en banc and its amici would wish that the original three-judge panel had issued its ruling or that the en banc court had held oral argument. But I see nothing whatsoever suspicious or unusual going on here.
Posted at 03:44 PM by Howard Bashman



"Justices Scalia and Breyer: Little in Common, Much to Debate; ABC Reporter Moderates Rare Public Talk Between Liberal and Conservative Members of the High Court." Jan Crawford Greenburg of ABC News provides this written report on the debate she moderated yesterday. In the post immediately below, I have linked to archived video of the debate available for viewing online, on-demand.
Posted at 02:45 PM by Howard Bashman


"Justices Breyer and Scalia Converse on the Constitution": "ACSBlog" provides this post, which links to archived video of yesterday's event in both RealPlayer and Windows Media Player formats.
Posted at 12:20 PM by Howard Bashman


Programming note: I'll be traveling home to the Philadelphia region from New Haven, Connecticut this morning. Additional posts will appear this afternoon.
Posted at 07:08 AM by Howard Bashman


"Private school is allowed to favor Native Hawaiians in its admissions; The 9th Circuit Court splits 8-7 on the policy for educational parity": Henry Weinstein has this article today in The Los Angeles Times.

The Honolulu Advertiser today contains articles headlined "Kamehameha allowed to stay 'Hawaiians first'"; "Decision a turning point in legal woes"; and "A sense that battle isn't over."

And The Honolulu Star-Bulletin contains articles headlined "Kamehameha rejoices over ruling; A 9th Circuit panel OKs the schools' Hawaiians-only admissions policy" and "Akaka: Ruling bodes well for recognition; The appeals court didn't mention sovereignty, but did note the plight of native Hawaiians."

My earlier coverage appears at this link.
Posted at 07:05 AM by Howard Bashman



"State lawyer, activist groups split on same-sex marriage; Lockyer wants court to grant a hearing to review challenges": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 07:02 AM by Howard Bashman


"High court considers privacy issue; In a case involving repressed memory, several justices suggest that a researcher who lies to get information may be breaking the law": Maura Dolan has this article today in The Los Angeles Times.
Posted at 07:00 AM by Howard Bashman


"Court bars automatic deportations in drug cases": David G. Savage has this article today in The Los Angeles Times.

Today in USA Today, Joan Biskupic reports that "Justices rule on deporting."

In The San Francisco Chronicle, Bob Egelko reports that "Legal immigrants can fight drug-related deportations; High court rules state crimes not grounds for automatic expulsion."

And The Washington Times reports that "Court bars deportation over drugs."
Posted at 06:55 AM by Howard Bashman



"Nevada judicial reforms gain traction; The state's Supreme Court justices indicate they're open to proposals to curb alleged corruption": This article appears today in The Los Angeles Times.
Posted at 06:50 AM by Howard Bashman


"End-of-life lawsuit outliving its subject; Kin to appeal dismissal ruling": The Boston Globe today contains an article that begins, "A judge of the Suffolk Family and Probate Court dismissed an end-of-life case yesterday involving 72-year-old Cho Fook Cheng, ruling that it is moot because the Buddhist died over the weekend. But a lawyer for Cheng's family said that they will continue seeking a ruling that points to the delicate issue on how hospitals should reconcile modern technology and patients' religious practices."
Posted at 06:45 AM by Howard Bashman


"Gay Unions Would Be 'Civil' in New Jersey, Not 'Spousal'": This article appears today in The New York Times.

And The Philadelphia Inquirer reports today that "N.J. bill would give gays marriage as civil unions."
Posted at 06:33 AM by Howard Bashman



"No Change in Definition of Gender": The New York Times today contains an article that begins, "New York City's Board of Health unexpectedly withdrew a proposal yesterday that would have allowed people to alter the sex on their birth certificates without sex-change surgery."
Posted at 06:25 AM by Howard Bashman


"Court Rejects Class Action Against Banks": The New York Times today contains an article that begins, "Wall Street banks, accused of manipulating the prices of initial public offerings of technology companies during the market boom of the late 1990s and cheating small investors out of hundreds of millions of dollars, will not have to face a huge securities class-action lawsuit, a federal appeals court ruled yesterday."

My earlier coverage is at this link.
Posted at 06:22 AM by Howard Bashman



"Why the Supreme Court Is Right to Be Skeptical of Race-Based Assignment Systems For Public School Students": Law Professor Douglas W. Kmiec has this essay online today at FindLaw.

And today in USA Today, Jonathan Turley has an op-ed entitled "It's not black and white: Affirmative action advocates should allow that someone can support minority advancement without endorsing flawed prescriptions."
Posted at 06:12 AM by Howard Bashman



Tuesday, December 05, 2006

"Court Rejects Interpretation of Immigration Drug Law": Linda Greenhouse will have this article Wednesday in The New York Times.

And The Washington Post on Wednesday will report that "Supreme Court Allows Discretion In Deportation For State Felonies."
Posted at 11:18 PM by Howard Bashman



Available online from law.com: An article reports that "Smokers Await Calif. High Court Ruling With Bated Breath."

And an article is headlined "The President's 'Lost Opportunity' for the 4th Circuit."
Posted at 11:15 PM by Howard Bashman



"US Supreme Court justices debate their views of Constitution": The Associated Press provides a report that begins, "A day after voicing starkly opposing views on voluntary public school integration, U.S. Supreme Court justices Stephen G. Breyer and Antonin Scalia shed their robes and kept up their debate about their differences in interpreting the Constitution. The justices' traveling Supreme Court road show Tuesday did not venture very far, just to a Washington hotel ballroom. But the liberal Breyer and the conservative Scalia took part in a rare public discussion touching on some of the most contentious issues that have come before the court, including abortion, religion and the death penalty."
Posted at 11:12 PM by Howard Bashman


"Hawaii Schools' Racial Enrollment Upheld": Adam Liptak will have this article Wednesday in The New York Times.
Posted at 11:10 PM by Howard Bashman


"Huge IPO Case Hits Big Snag at 2nd Circuit; Decision comes amid developing rifts among plaintiffs committee members over Milberg Weiss' status as lead counsel": law.com provides a report that begins, "A federal appeals court Tuesday vacated class certification in six key cases in the massive litigation over dot-com era initial public offerings -- a potentially devastating setback for plaintiffs in the biggest consolidated securities class action in U.S. history."

And Bloomberg News reports that "Morgan Stanley, 11 Securities Firms Win IPO Appeal."

You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 10:35 PM by Howard Bashman



Tonight's Federalist Society Event at Yale Law School: It was a pleasure to finally meet in person my co-panelists, Law Professor Jack M. Balkin, of "Balkinization," and Law Professor Glenn Harlan Reynolds, of "Instapundit." Moreover, the event itself was quite interesting.

Before the event, I enjoyed visiting with Will Baude of "Crescat Sententia." And earlier this afternoon, it was great to visit with a friend whose office is located in the U.S. Courthouse here in New Haven.
Posted at 10:20 PM by Howard Bashman



"National dollars find, defeat circuit judge; What happened in Cole County to Tom Brown represents a growing trend across the U.S." The Kansas City Star yesterday published an article that begins, "If you’re irritated by a local judge's decision on an issue dear to your heart, a national group opposed to 'judicial activism' has a blueprint to ease your angst."
Posted at 04:23 PM by Howard Bashman


"'For sale' sign tests speech; Full appeals court to hear Glendale car seller's suit": The Cincinnati Enquirer today contains this article reporting on a case to be reargued tomorrow before the en banc U.S. Court of Appeals for the Sixth Circuit.

Back on May 19, 2006, I covered the original three-judge panel's ruling in this case in a post titled "Divided three-judge Sixth Circuit panel rejects attorney's commercial speech challenge to Village of Glendale, Ohio's ordinance prohibiting the display of 'for-sale' signs on a vehicle parked on a public street."
Posted at 04:20 PM by Howard Bashman



"Eighth Circuit follows the herd on crack sentencing": Law Professor Doug Berman, at his "Sentencing Law and Policy" blog, has this post about an en banc ruling that the U.S. Court of Appeals for the Eighth Circuit issued today.
Posted at 04:05 PM by Howard Bashman


"Court Decision Favors Native Hawaiians": David Kravets of The Associated Press provides a report that begins, "A private school in Hawaii can favor Hawaiian natives for admission as a means of giving a helping hand to a downtrodden indigenous population, a divided federal appeals court ruled Tuesday."

The Honolulu Advertiser provides a news update headlined "Attorneys want to take case to high court."

The Honolulu Star-Bulletin provides a news update headlined "Kamehameha Schools admission policy upheld."

And Reuters reports that "Court backs Native Hawaiian school."
Posted at 03:44 PM by Howard Bashman



En banc Ninth Circuit issues its ruling in Doe v. Kamehameha Schools: The 110-page en banc ruling consists of an "Opinion by Judge Graber; Concurrence by Judge W. Fletcher; Dissent by Judge Bybee; Dissent by Judge Rymer; Dissent by Judge Kleinfeld; Dissent by Judge Kozinski."

According to a summary of today's ruling from the majority opinion, "We took this case en banc to reconsider whether a Hawaiian private, non-profit K-12 school that receives no federal funds violates § 1981 by preferring Native Hawaiians in its admissions policy. We now answer 'no' to that question and, accordingly, affirm the district court." The 15-judge en banc court appears to have divided 8-7 over the outcome of the case. I will surely be providing additional coverage of this ruling later today and in the days to come.

Update: Before going en banc, a divided three-judge Ninth Circuit panel ruled 2-1 in favor of Doe that "the Schools' admissions policy, which operates in practice as an absolute bar to admission for those of the non-preferred race, constitutes unlawful race discrimination in violation of § 1981." My earlier coverage of that ruling can be accessed here.

Both the judge who wrote the three-judge panel's opinion and the dissenting judge on the three-judge panel (who today emerges as the author of the en banc majority's opinion) were selected to serve on the 15-judge en banc panel. But Senior Circuit Judge Robert R. Beezer, who joined in the three-judge panel's majority opinion holding the Kamehameha Schools' policy unlawful, was not selected to serve on the 15-judge en banc panel. Thus, of the 16 Ninth Circuit judges to vote on the lawfulness of the Hawaiian schools' policy, the court is evenly divided 8-8.
Posted at 02:10 PM by Howard Bashman



Today's U.S. Supreme Court opinion in an argued case: You can access today's 8-1 ruling in Lopez v. Gonzales, No. 05-547, at this link.

The Court today also dismissed as improvidently granted the writ of certiorari in Toledo-Flores v. United States, No. 05-7664.

At "SCOTUSblog," Lyle Denniston has a post titled "Court limits deportation for drug crimes."

And The Associated Press reports that "Immigrant Wins in Drug Deportation Case."
Posted at 02:05 PM by Howard Bashman



"UVa law school well represented at Supreme Court; University 3rd nationwide in placing alumni in prestigious clerk post": The Daily Progress of Charlottesville, Virginia today contains an article that begins, "The University of Virginia School of Law has more graduates clerking for the U.S. Supreme Court this term than any other school save Harvard and Yale."

And speaking of Yale, I have arrived safe and sound in New Haven, Connecticut.
Posted at 01:58 PM by Howard Bashman



Programming note: Early this evening, I'll be at Yale Law School in New Haven, Connecticut to speak at a Federalist Society-hosted panel on law blogging. Also scheduled to speak at the event are Law Professor Jack M. Balkin, of "Balkinization," and Law Professor Glenn Harlan Reynolds, of "Instapundit." The event is slated to begin at 6:10 p.m. and is open to the public.

Additional posts will appear online here this afternoon, after I arrive in New Haven.
Posted at 09:00 AM by Howard Bashman



"Md. Court Urged To Toss Out Ban On Gay Marriage": This article appears today in The Washington Post.

The Baltimore Sun reports today that "Gay marriage case in Md. court; Judges ask few questions as scene outside is quiet." In addition, columnist Jean Marbella has an op-ed entitled "Their best argument is the lives they lead."

And The Washington Times reports that "State, ACLU square off over same-sex 'marriage.'"
Posted at 07:55 AM by Howard Bashman



"Prosecutor's death remains a mystery": The Baltimore Examiner today contains an article that begins, "Three years ago, federal prosecutor Jonathan Luna left the courthouse in Baltimore, never to return. He was found dead hours later in a Pennsylvania creek with multiple stab wounds, and his case remains unsolved." My most recent earlier coverage appears at this link.
Posted at 06:47 AM by Howard Bashman


The Newark (N.J.) Star-Ledger is reporting: Today's newspaper contains articles headlined "Gay-marriage supporters set to press lawmakers; Campaign starting today will stress that legalizing civil unions won't be enough" and "LaVecchia tapped for court tenure."
Posted at 06:45 AM by Howard Bashman


"Drug deals costly: 55 years; U.S. top court refuses to hear Utahn's appeal." This article appears today in The Salt Lake Tribune.

And The Deseret Morning News reports today that "Top court won't hear Salt Lake man's drug case."
Posted at 06:42 AM by Howard Bashman



"Justices question school policies; The Supreme Court debate suggests most favor halting the use of race to assign students to public facilities": David G. Savage has this article today in The Los Angeles Times.

In USA Today, Joan Biskupic reports today that "Diversity programs may face ax; Justices cool to using race in school choice." In addition, the newspaper contains an editorial entitled "52 years later, integration faces new Supreme Court test; 'Brown v. Board of Education' set standard; new case draws questions." And Law Professor Douglas W. Kmiec has an op-ed entitled "Stop discriminating by race: Rigid ratios of white, non-white only indulge ugly stereotypes."

The Seattle Times contains an article headlined "Aggressive questions from court in Seattle race case."

The Seattle Post-Intelligencer reports that "Justices uneasy with Seattle schools 'Open Choice'; U.S. high court looks at schools' race policy."

The Louisville Courier-Journal contains articles headlined "Justices may favor color-blind schools; Experts: Questions suggest Jefferson policy in danger" and "Some fear case may rekindle segregation."

In Newsday, Tom Brune reports that "Question of using race as a factor in voluntary plans sees little support from Supreme Court bench."

And The Washington Times reports that "Justices reconsider race-based school admissions."
Posted at 06:40 AM by Howard Bashman



"Trial strategy change postpones Gates' visit; The plaintiffs' attorney will use a taped deposition of the Microsoft founder": The Des Moines Register contains this article today.
Posted at 06:30 AM by Howard Bashman


"Nevada high court to debate judicial ethics; Proposed rules include banning jurists from personally soliciting campaign funds; Free speech may be an issue": This article appears today in The Los Angeles Times.
Posted at 06:23 AM by Howard Bashman


Monday, December 04, 2006

"Court Reviews Race as Factor in School Plans": Linda Greenhouse will have this article Tuesday in The New York Times.

And The Washington Post on Tuesday will report that "Justices Weigh Race, School Admissions; Cases Draw Wide Interest, Including Demonstrations."
Posted at 10:33 PM by Howard Bashman



"Supreme Court Revisits Race in Public Schools": This segment (transcript with link to audio) appeared on this evening's broadcast of the PBS program "The NewsHour with Jim Lehrer."
Posted at 10:20 PM by Howard Bashman


"Competing Models of Judicial Coalition Formation and Case Outcome Determination": Law Professor Tonja Jacobi has this paper (abstract with links for download) online at SSRN (via "Legal Theory Blog").
Posted at 09:55 PM by Howard Bashman


Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained an audio segment entitled "Supreme Court Hears School Diversity Case" featuring Nina Totenberg.

And today's broadcast of "Talk of the Nation" contained an audio segment entitled "Supreme Court and School Diversity" featuring David G. Savage.
Posted at 08:27 PM by Howard Bashman



"DoD Photos of Shackling Jose Padilla": Cryptome has posted them online at this link, while a PDF copy of the image is here.

As I noted here last night, The New York Times today contains a related article headlined "Video Is a Window Into a Terror Suspect's Isolation."
Posted at 08:10 PM by Howard Bashman



"Court appears likely to bar school 'racial balancing'": David G. Savage of The Los Angles Times provides this news update.

And Stephen Henderson of McClatchy Newspapers reports that "Supreme Court weighs school diversity cases."
Posted at 07:45 PM by Howard Bashman



"Affirmative Inaction: Anthony Kennedy is sort of horrified by voluntary school desegregation." Dahlia Lithwick has this Supreme Court dispatch online at Slate.
Posted at 07:40 PM by Howard Bashman


"With the recent 9th Circuit opinion and one in Pennsylvania, there has been a lot of discussion about what constitutes possession of child pornography in our modern Internet era." So begins a post at the blog "Sex Crimes" about my "On Appeal" essay headlined "Just Looking: Should Internet Ignorance Be a Defense to Child Porn Charges?" published today at law.com.

And the blog "Esoteric Appeal" discusses my essay in an interesting post titled "Why Tech Law Is Amazing."

Lots of other interesting comments about the essay have arrived by email, and I hope to have the time to respond to some or all of them soon.
Posted at 06:00 PM by Howard Bashman



"Balancing the races by racial edicts": The Christian Science Monitor on Tuesday will contain an editorial that begins, "The Supreme Court Monday heard arguments in a case involving the use of skin color to decide where a student attends school."
Posted at 05:50 PM by Howard Bashman


"Supreme Court Could Rule Against Use of Race for Public School Diversity": law.com's Tony Mauro provides a news update that begins, "The Supreme Court appeared headed on Monday toward a ruling that will sharply limit, if not eliminate, the use of race as a factor in assigning students to public schools to achieve diversity."
Posted at 05:04 PM by Howard Bashman


"Maryland Court Hears Same-Sex Marriage Arguments": The Washington Post provides this news update.

And The Baltimore Sun provides a news update headlined "Same-sex marriage arguments begin; Case starts in state's highest court as both sides brace for long battle."

By clicking here (RealPlayer required), you can watch archived video of today's oral argument in the Court of Appeals of Maryland, that State's higest court. The red robes that the court's judges wear at argument -- which are "red"-ily apparent on the video -- seem festively appropriate for this holiday season.
Posted at 04:40 PM by Howard Bashman



Tomorrow's Senate Judiciary Committee confirmation hearing for judicial nominees has been canceled: The notice of cancellation is at this link.
Posted at 04:23 PM by Howard Bashman


On today's broadcast of NPR's "Day to Day": The broadcast contained audio segments entitled "Supreme Court Considers Integration in Schools" (featuring Dahlia Lithwick); "Sperm Donor Challenges Parental Rights in Kansas"; and "Video Shows Treatment of Terrorism Suspect Padilla."
Posted at 03:50 PM by Howard Bashman


Available online from the First Amendment Center: Two news analysis items from Tony Mauro -- the first is headlined "'Faith-based' case tests establishment-clause lawsuit standing," while the second is headlined "Court may untangle student-speech cases with 'Bong Hits.'"
Posted at 03:33 PM by Howard Bashman


C-SPAN has posted online for on-demand viewing the audio of today's U.S. Supreme Court oral arguments in the race-based school assignment cases: You can view this morning's oral argument in Parents Involved in Community Schools v. Seattle School District, No. 05-908, by clicking here (RealPlayer required). In addition, the same-day transcript of this argument is available at this link.

And you can view this morning's oral argument in Meredith v. Jefferson County Board of Education, No. 05-915, by clicking here (RealPlayer required). Update: The same-day transcript of this argument is now available at this link.
Posted at 03:28 PM by Howard Bashman



"Key U.S. justice opposes use of race in school cases": James Vicini of Reuters provides this report.

And Greg Stohr of Bloomberg News reports that "Race-Based School Assignments Questioned by U.S. Supreme Court."
Posted at 03:20 PM by Howard Bashman



"Judge Posner's Seductive Realism and Pragmatic Adjudication--Beware the Pied Piper": Brian Tamanaha has this post today at "Balkinization."
Posted at 03:15 PM by Howard Bashman


"Correcting the Constitution": Today's broadcast of the public radio program "On Point" featured a lengthy segment (available in both RealPlayer and Windows Media Player formats) focusing on Law Professor Sanford Levinson's new book, "Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It)."
Posted at 03:12 PM by Howard Bashman


"Truck Driver Convicted in Smuggling Case": The Associated Press provides a report that begins, "A truck driver was convicted Monday for his role in the nation's deadliest human smuggling attempt, in which 19 illegal immigrants died from dehydration, overheating and suffocation inside a sweltering tractor-trailer. The trial's punishment phase was set to begin on Wednesday and was expected to last about a week. Jurors will decide whether the driver, Tyrone Williams, should be sentenced to death or life in prison."

And Harvey Rice of The Houston Chronicle provides a news update headlined "Truck driver convicted in smuggling deaths case."
Posted at 03:02 PM by Howard Bashman



"Judge Forgoes Salary, But May Not Forgo Income": "TaxProf Blog" has this post concerning the latest report on Pa. Superior Court Judge Joan Orie Melvin's efforts to decline Pennsylvania's controversial judicial pay raise.
Posted at 01:38 PM by Howard Bashman


Lyle Denniston is reporting: At "SCOTUSblog," he has posts titled "Schools' race experiments may be doomed" and "Court puts off school holiday display appeal."
Posted at 01:32 PM by Howard Bashman


"Supreme Court Looks at Race and Schools": The Associated Press provides this updated report.
Posted at 12:20 PM by Howard Bashman


C-SPAN has just begun its rebroadcast of today's oral arguments in the race-based school admission cases: You can access C-SPAN live, online using either Real Player or Windows Media Player.
Posted at 11:17 AM by Howard Bashman


"Supreme Court Lets Stand 55-Year Term": The Associated Press provides a report that begins, "The Supreme Court on Monday let stand a mandatory 55-year prison sentence, condemned as excessive by the federal judge who imposed it, for a man convicted of carrying a handgun during three marijuana deals."

And The AP also reports that "Court Turns Down Sex Survey Case Review."

Update: Today's U.S. Supreme Court Order List can be accessed at this link.
Posted at 10:25 AM by Howard Bashman



View the video of Justice Stephen G. Breyer's appearance yesterday on FOX News Sunday: You can view the video online by clicking here.

My earlier coverage of Justice Breyer's television appearance yesterday can be accessed at this link.
Posted at 10:09 AM by Howard Bashman



"Supreme Court to Weigh Schools' Racial Plans": This audio segment (RealPlayer required) featuring Nina Totenberg appeared on today's broadcast of NPR's "Morning Edition."

And The Associated Press reports that "Supreme Court Looks at Race and Schools."

C-SPAN plans to air the same-day oral argument audio in these cases as soon as it becomes available. The broadcast of the audio from this morning's first oral argument is likely to start at approximately 11:15 a.m. You can access C-SPAN live, online using either Real Player or Windows Media Player.
Posted at 09:50 AM by Howard Bashman



"Just Looking: Should Internet Ignorance Be a Defense to Child Porn Charges?" The brand new installment of my "On Appeal" column for law.com can be accessed here.

My essay begins, "Two appellate courts recently ruled that an individual who intentionally visited Web sites to view child pornography, but who did not intentionally save those images to his computer's hard drive, could not be convicted or punished for possessing images that were automatically saved due to the Web browser's cache functions. These rulings strike me as badly mistaken, for reasons that I explain below."
Posted at 08:17 AM by Howard Bashman



"Prosecutor of drug case found killed; Assistant U.S. attorney for Md. discovered shot, beaten and stabbed in Pa.; 'We will find out who did this'; Authorities retrace Luna's steps, ask for public's help": Three years ago tomorrow, The Baltimore Sun published an article that begins, "A federal prosecutor who disappeared as he was preparing to conclude a drug case against a would-be Baltimore rap artist and another man was found beaten, stabbed and shot in rural Pennsylvania yesterday, and top federal officials vowed to track down his killer."

Today thus marks the three-year anniversary of the date on which Assistant U.S. Attorney Jonathan Luna's lifeless body was found in Lancaster County, Pennsylvania. Yesterday, The Sunday News of Lancaster published an article headlined "Luna case takes turns; Book update tells of wounds to back, hands of assistant U.S. attorney found dead in 2003; mortician is source; lawsuit could force an inquest." And an archive of The Baltimore Sun's coverage of this still unsolved case can be accessed here.
Posted at 08:15 AM by Howard Bashman



"Politically correct abortion-speak": Nat Hentoff has this op-ed in today's issue of The Washington Times.
Posted at 08:11 AM by Howard Bashman


"We're Still Learning From Brown v. Board of Education; As long as we struggle to integrate schools, race-based measures should pass muster": Andrew J. Pincus has this essay (free access) in today's issue of Legal Times.
Posted at 08:10 AM by Howard Bashman


"The mock-amole defense: When a guacamole dip is only 2% avocado, it's mislabeled, but that's no reason to seek punitive damages." This editorial appears today in The Los Angeles Times.
Posted at 08:05 AM by Howard Bashman


"Global warming to gay rights: The worldwide trend of recognizing same-sex marriage will likely continue." Paula L. Ettelbrick has this op-ed today in The Los Angeles Times.
Posted at 08:04 AM by Howard Bashman


"As Md. Court Weighs Same-Sex Marriage, Plaintiffs Hear Echoes of Previous Fight": This article appears today in The Washington Post.

And The Washington Times reports today that "Religious liberty group takes up 'marriage' case."

Today's oral argument before the Court of Appeals of Maryland -- that State's highest court -- in the case of Conway v. Deane presents the question whether Maryland law prohibits the marriage of two persons of the same gender. The court is scheduled to webcast the oral argument live starting at 10 a.m. today. You can access the webcast online via this link. And the briefs filed in the case can be accessed here (link via "The Volokh Conspiracy").
Posted at 07:58 AM by Howard Bashman



"Cases retread Brown vs. Board of Education steps; The Supreme Court takes up two school integration disputes that could have far-reaching effects": David G. Savage has this article today in The Los Angeles Times.

The Louisville Courier-Journal reports today that "Court to hear unlikely advocate; Lawyer challenges Jefferson desegregation policy."

In The New York Sun, Joseph Goldstein reports that "Spitzer Argues For Race-Based School Admission."

The Newark (N.J.) Star-Ledger contains an article headlined "Jersey's stake in U.S. justices' integration ruling."

The Detroit Free Press reports that "Detroit eyes Supreme Court cases; Activists fear return to inequality in schools."

And The Washington Post today contains an editorial entitled "A Different Race Case: The Supreme Court considers whether race can be used in public school placement."
Posted at 06:48 AM by Howard Bashman



"Try bipartisanship on judge nominees; Delay on Iowa judge typifies polarization": This editorial appears today in The Des Moines Register.
Posted at 06:35 AM by Howard Bashman


"Top court asked to rule on Jewish rite; Montrealer wants her ex-husband to pay for refusing to give her a bill of divorce": CanWest News Service provides this report.
Posted at 06:33 AM by Howard Bashman


"The Supreme Court Oral Argument in the Global Warming Case Reveals What's Wrong with the Standing Doctrine": Michael C. Dorf, co-author of the blog "Dorf on Law," has this essay today online at FindLaw.
Posted at 06:28 AM by Howard Bashman


"Hot and Cold": In the December 11, 2006 issue of The New Yorker, Elizabeth Kolbert has this essay about the U.S. Supreme Court and global warming.
Posted at 06:24 AM by Howard Bashman


"Blawg Review #86": Available here, at "Infamy or Praise."
Posted at 06:20 AM by Howard Bashman


Sunday, December 03, 2006

Say hello to the new blog "International Civil Litigation": There are a bunch of posts up already at this interesting new law blog, and I give the blog's authors credit for having avoided the difficulties inherent in linking to Seventh Circuit opinions on that court's web site.

By the way, one of the blog's authors is a student at Yale Law School, which is where I'll be this Tuesday evening to give a Federalist Society-hosted talk together with two quite popular law professor bloggers. Details here.
Posted at 11:54 PM by Howard Bashman



"An Assault on Local School Control": The New York Times on Monday will contain an editorial that begins, "More than 50 years after the Supreme Court decided Brown v. Board of Education, the nation still has not abolished de facto segregation in public schools. But thanks to good will and enormous effort, some communities have made progress. Today the Supreme Court hears arguments in a pair of cases that could undo much of that work."
Posted at 11:40 PM by Howard Bashman


"Videotape Offers a Window Into a Terror Suspect's Isolation": Monday's edition of The New York Times will contain an article that begins, "One spring day during his three and a half years as an enemy combatant, Jose Padilla experienced a break from the monotony of his solitary confinement in a bare cell in the brig at the Naval Weapons Station in Charleston, S.C."
Posted at 11:35 PM by Howard Bashman


"Last Stop for Detainee Cases May Be High Court; With Democrats running Congress, and cases in the courts, detainees' rights remain in limbo": This article (free access) will appear in Monday's issue of Legal Times.

And Monday in The Miami Herald, Carol Rosenberg will have an article headlined "Pentagon invoking emergency authority for Guantanamo court."
Posted at 11:30 PM by Howard Bashman



"School Integration: Back To The Future? Supreme Court Will Hear Cases As Some School Districts Re-Segregate." The CBS Evening News provides this report.

And The Seattle Post-Intelligencer on Monday will contain an editorial entitled "Seattle Schools: Diversity's value."
Posted at 09:50 PM by Howard Bashman



"Court revisits school integration case": Patti Waldmeir will have this article Monday in Financial Times.
Posted at 08:50 PM by Howard Bashman


"Ruling favors prosecutors in death cases": Monday in The Atlanta Journal-Constitution, Bill Rankin will have an article that begins, "To the delight of district attorneys, the Georgia Supreme Court has ruled that a judge can sit as a jury in a criminal trial only when the prosecution consents. In past years, defendants have asked judges to sit as juries in death penalty cases with the hope of getting a life sentence. Defendants have been granted the request over objections by prosecutors. But the state Supreme Court, in a 6-1 decision, said that judges can now sit as juries in what are called bench trials only when prosecutors agree as well."

You can access last Thursday's ruling of the Supreme Court of Georgia at this link.
Posted at 07:54 PM by Howard Bashman



"High Court Will Hear School-Integration Arguments": This audio segment appeared on this evening's broadcast of NPR's "All Things Considered."
Posted at 07:30 PM by Howard Bashman


"Supreme Court to Weigh Schools' Racial Plans": Nina Totenberg provides this written report at National Public Radio's web site.
Posted at 05:44 PM by Howard Bashman


"Back to the Supreme Court: racial balance in schools; On Monday, the court takes up cases from Seattle and Louisville on the role of race in school enrollment." Warren Richey will have this article Monday in The Christian Science Monitor.
Posted at 05:40 PM by Howard Bashman


"Supreme Court arguments focus on diversity in Seattle schools": The Associated Press provides this report.
Posted at 04:28 PM by Howard Bashman


"Judge Karen Williams of Orangeburg in line to be chief judge of 4th Circuit Court": On Friday, this article appeared in The Times and Democrat of Orangeburg, South Carolina.
Posted at 04:25 PM by Howard Bashman


"New Senate leader's shortened recesses could cut off Bush judicial nominees": Today in The Chicago Sun-Times, columnist Robert Novak has an op-ed that begins, "Sen. Harry Reid, leading the Senate's new Democratic majority, is framing next year's schedule in a way that will make it difficult, if not impossible, for President Bush to give recess appointments to nominees blocked for confirmation."
Posted at 04:23 PM by Howard Bashman


"More Disorder in the Court? If there's a Supreme Court vacancy, the Democrats will have a lot to say about it." This article will appear in the December 11, 2006 issue of U.S. News & World Report.
Posted at 04:20 PM by Howard Bashman


"Breyer: Court Should Aid Minority Rights." Hope Yen of The Associated Press provides this report.
Posted at 04:15 PM by Howard Bashman


"Transcript: Justice Stephen Breyer Sits Down With 'FOX News Sunday.'" FOXNews.com has posted online this transcript of today's television appearance by Justice Stephen G. Breyer.

As someone who viewed the telecast on TV emailed me to point out, during the interview Justice Breyer refers to the U.S. Supreme Court's abortion ruling in "Casey v. Polino." From the context of Jusice Breyer's remarks, however, it appears that he is referring to the Court's ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey. When the video of the appearance becomes available online, I'll link to it.

Update: A resourceful "How Appealing" reader emails that then-Circuit Judge Breyer was the author of the First Circuit's ruling in Palino v. Casey, 664 F.2d 854 (1981), a non-abortion-related ERISA case.

Second update: You can download a 19MB podcast of today's FOX News Sunday broadcast via this link. Justice Breyer's mention of the Casey ruling appears at 21 minutes and 45 seconds into the podcast recording.
Posted at 12:50 PM by Howard Bashman



"State high court rules in favor of car-rental firm on license validity; Company not liable if driver lies": The Associated Press provides a report that begins, "Rental-car companies are not liable for accidents that result from their unknowingly leasing a car to a motorist who lies about having a valid driver's license, the Mississippi Supreme Court has ruled. The court, in a recent 5-4 decision, said if the driver presents a license that looks legal, the rental-car company can use that to defend itself against damage lawsuits."

You can access this past Thursday's ruling of the Supreme Court of Mississippi at this link.
Posted at 12:38 PM by Howard Bashman



"Another test of racial balance: Reminiscent of Brown v. Board of Education, Supreme Court will hear arguments against use of race as a factor in student placement." Tom Brune has this article today in Newsday, along with an article headlined "Historic case in the balance." In addition, the newspaper contains an article headlined "Challenge for LI schools."

The Richmond Times-Dispatch today contains articles headlined "A test for school integration: A closer look . . . race and education; Supreme Court to consider ability of school boards to voluntarily place students" and "Court ruling might have limited impact in Va."

The News & Observer of Raleigh, North Carolina reports that "High court's eyes on Wake schools; A Supreme Court case might consider Wake's decisions on race's role in school assignments."

In The Denver Post, John Aloysius Farrell has an essay entitled "The end of a civil rights era."

And in The Seattle Times, columnist Lynne Varner has an op-ed entitled "Race counts."
Posted at 12:30 PM by Howard Bashman



"Annapolis becomes gay marriage battleground: State's highest court hears case tomorrow." The Capital newspaper of Annapolis, Maryland today contains this article.
Posted at 12:23 PM by Howard Bashman


"Gay student won't give up fight for club; The Okeechobee High senior takes her case to court despite insults and fierce foes": This article appears today in The Orlando Sentinel.
Posted at 12:22 PM by Howard Bashman


"Conlin: 9 stories will illustrate Microsoft case; The Des Moines lawyer spends more than four hours Friday on her opening statement." Yesterday's edition of The Des Moines Register contained an article that begins, "Des Moines lawyer Roxanne Conlin will present her class-action lawsuit against Microsoft Corp. as a series of nine stories designed to show how Microsoft harmed Iowa consumers by destroying competition, Conlin said Friday as she began her opening statement to a Polk County jury."
Posted at 12:20 PM by Howard Bashman


"Kansas lawsuit could be landmark; The case involves a sperm donor who wants parental rights to twins born last year": This article appears today in The Kansas City Star.
Posted at 12:18 PM by Howard Bashman


"Where Is the Roberts Court on Race? The Supremes get ready to wade into the national debate." Debra Rosenberg has this article online at Newsweek's web site.
Posted at 11:54 AM by Howard Bashman


"Judgments about a chief justice: Ronald George has been reshaping the state's courts for a decade; Some L.A. jurists say he wields too much power." Maura Dolan has this article today in The Los Angeles Times.
Posted at 09:12 AM by Howard Bashman


"Court mulls schools' racial mix; Local schools to feel ruling's effect": This article appears today in The St. Petersburg Times.

The Seattle Times reports today that "U.S. Supreme Court to hear Seattle's school racial-tiebreaker case."

In The San Francisco Chronicle, Bob Egelko reports that "School integration back before Supreme Court." In addition, a related article is headlined "S.F. board watches high court carefully; Decision could prohibit race as enrollment factor."

And in the Los Angeles Times, Edward Lazarus has an op-ed entitled "Can affirmative action survive the new Supreme Court? A case being argued this week over racial balance in public schools could determine the future of affirmative action programs."
Posted at 09:10 AM by Howard Bashman



"After Buddhist dies, legal battle continues; Kin, hospital split on when death occurs": The Boston Globe contains this article today.
Posted at 09:07 AM by Howard Bashman


"Luna case takes turns; Book update tells of wounds to back, hands of assistant U.S. attorney found dead in 2003; mortician is source; lawsuit could force an inquest": This article appears today in The Sunday News of Lancaster, Pennsylvania. Tomorrow will mark the three-year anniversary of the date on which Assistant U.S. Attorney Jonathan Luna's lifeless body was found in Lancaster County, Pennsylvania.
Posted at 09:04 AM by Howard Bashman


"If It Feels Like a Dollar...." The New York Times today contains an editorial that begins, "Anybody who has ever handed over a $10 bill thinking it was a dollar knows the problem. Unlike the currency in 180 other countries, the American greenback comes in one size, and one dominant color -- green."
Posted at 08:50 AM by Howard Bashman


"Ban on Saucy Beer Labels Brings a Free-Speech Suit": This article appears today in The New York Times. My earlier coverage is at this link.
Posted at 08:42 AM by Howard Bashman


Saturday, December 02, 2006

"Supreme Court to Review Two School-Integration Plans; Justices to Consider Whether Race Can Still Be a Factor in Public School Placement": Sunday's edition of The Washington Post will contain this article.

And Sunday's edition of Newsday will report that "Supreme Court to rule on school diversity."
Posted at 11:15 PM by Howard Bashman



"The War on Terror, Under New Scrutiny": This article will appear in the Week in Review section of Sunday's issue of The New York Times.
Posted at 11:12 PM by Howard Bashman


"Schools argument 12/4/06: Could this be 'Brown III'?" Lyle Denniston has this post today at "SCOTUSblog."
Posted at 11:08 PM by Howard Bashman


"Timetable Set For Sullivan To Appeal; Judicial Review Council Sends Written Ruling To Former Chief Justice": Today in The Hartford Courant, Lynne Tuohy has an article that begins, "The Judicial Review Council has issued its written ruling in the case of former Chief Justice William J. Sullivan, setting in motion the timetable for any appeal of his 15-day suspension. Sullivan, now a senior justice, faced up to a one-year suspension for withholding release of a controversial ruling to help Associate Justice Peter T. Zarella's chances of succeeding him as chief justice."
Posted at 03:58 PM by Howard Bashman


"Five years after Enron's fall, its former CEO will trade a life of power for a modest federal lockup; A dramatic shift for Skilling": This article appears today in The Houston Chronicle.
Posted at 03:50 PM by Howard Bashman


"In Unusual Ruling, Law Firm Is Told to Pay Opponent's Legal Fees in Enron Case": The New York Times today contains an article that begins, "In a decision that she conceded flies in the face of previous rulings by other courts, a federal judge in Houston has ordered the law firm of William S. Lerach, a leading class-action lawyer, to pay the legal fees and costs of a company he sued."

Update: WSJ.com's "Law Blog" has posted online a copy of the ruling.
Posted at 03:48 PM by Howard Bashman



"State sees downside to Santa's backside": The Portland Press Herald yesterday published an article that begins, "Daniel Shelton is confident that Santa's Butt Winter Porter, brewed in England, eventually will be available at Maine stores -- though it may take a court order. On Thursday, the Maine Civil Liberties Union Foundation filed a lawsuit claiming government censorship after the Maine Bureau of Liquor Enforcement refused to allow Massachusetts-based Shelton Bros. to sell Santa's Butt and two other beers with label illustrations that the agency deemed 'undignified or improper.' The MCLU claims the denial is a First Amendment violation restricting freedom of expression."

And The Bangor Daily News reported yesterday that "State, beer distributors butt heads over label featuring Santa's backside."

A related news release from the Maine Civil Liberties Union Foundation can be accessed here.

You can learn more about the apparently offending brew at this link.
Posted at 03:30 PM by Howard Bashman



"High Court Probes K-12 School Diversity": The Associated Press provides this report.
Posted at 02:15 PM by Howard Bashman


"Justices to weigh race 'tiebreakers'; Seattle schools at center of issue": The Seattle Post-Intelligencer contains this article today.

And Sunday in The Washington Post. columnist George F. Will will have an op-ed entitled "Clueless In Seattle."
Posted at 11:00 AM by Howard Bashman



"Gay marriage issue resurfaces; Lawmaker says he'll reintroduce a bill that was vetoed by the governor in 2005": This article appears today in The Sacramento Bee.

And The Oakland Tribune reports today that "Bill rekindles debate on same-sex marriage; 'Growing support' cited by assemblyman as he prepares to introduce new legislation."
Posted at 10:58 AM by Howard Bashman



"Eminent domain case near trial": The San Luis Obispo Tribune today contains an article that begins, "A Templeton man is accusing the county of building a road across his property to benefit a private landowner in what he calls an abuse of the eminent domain process."
Posted at 10:55 AM by Howard Bashman


"Supreme silence": The Chicago Tribune today contains an editorial that begins, "The U.S. Supreme Court refused Monday to reinstate a $10.1 billion judgment against Philip Morris awarded in 2003 by a judge in Madison County."
Posted at 10:54 AM by Howard Bashman


"Vermont court may decide pet's legal value": This article appears today in The Barre (Vt.) Times Argus.
Posted at 10:50 AM by Howard Bashman


"Judge returns her paycheck to state": The Pittsburgh Tribune-Review today contains an article that begins, "Superior Court Judge Joan Orie Melvin, who filed a lawsuit because officials refuse to let her turn down a 15 percent salary boost, returned her entire paycheck this week to the state."
Posted at 10:47 AM by Howard Bashman


"A duck hunt for global warming": Today in The Boston Globe, columnist Derrick Z. Jackson has an op-ed that begins, "Supreme Court Justice Antonin Scalia needs to go duck hunting. It is the only way for him to understand global warming."
Posted at 10:45 AM by Howard Bashman


"Justices to Decide if Citizens May Challenge White House's Religion-Based Initiative": Linda Greenhouse has this article today in The New York Times.

Today in The Los Angeles Times, David G. Savage reports that "Justices to Hear Case of 'Bong Hits 4 Jesus' Banner at School Event; Supreme Court agrees to decide whether student had a right to display his sign."

And The Chicago Tribune reports that "Top court takes 'Bong hits' case on free speech."
Posted at 10:33 AM by Howard Bashman



"Chronicle appeals order to imprison reporters; Court asked to adopt test to weigh effects of grand jury leaks": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "The Chronicle, challenging a judge's order to imprison two of its reporters for refusing to reveal who leaked grand jury testimony about athletes and steroids, told a federal appeals court Friday that the public interest and evolving legal doctrines require recognition of a journalist's right to protect confidential sources."
Posted at 10:15 AM by Howard Bashman


"Supreme court to confront school racial diversity": James Vicini of Reuters provides this report.
Posted at 10:08 AM by Howard Bashman


"Fa-la-la-la-lawsuit: Get sued at the office holiday party!" Dahlia Lithwick has this jurisprudence essay online at Slate.
Posted at 10:00 AM by Howard Bashman


"Times Asks End to Suit on Anthrax Inquiry": Today in The New York Times, Neil A. Lewis and David Johnston have an article that begins, "The New York Times filed a motion with a federal judge on Friday asking him to dismiss a suit by a germ-warfare scientist who said a series of columns by Nicholas D. Kristof about the deadly anthrax mailings of 2001 defamed him."

And recently on Slate, Jack Shafer had a Press Box essay entitled "Hatfill v. Hatfill: The bio-warfare scientist and his dueling lawsuits."
Posted at 09:50 AM by Howard Bashman



Friday, December 01, 2006

This Sunday's broadcast of FOX News Sunday to include an interview with Justice Stephen G. Breyer: Details here.
Posted at 11:05 PM by Howard Bashman


Available online from law.com: An article is headlined "Calif. Court: Video Game Makers Can Base Characters on Real People."

And the brand new installment of my "On Appeal" column is headlined "Just Looking: Should Internet Ignorance Be a Defense to Child Porn Charges?"

My essay begins, "Two appellate courts recently ruled that an individual who intentionally visited Web sites to view child pornography, but who did not intentionally save those images to his computer's hard drive, could not be convicted or punished for possessing images that were automatically saved due to the Web browser's cache functions. These rulings strike me as badly mistaken, for reasons that I shall explain further below."

The three cases that I discuss in the essay can all be freely accessed online. Those cases are: the Pennsylvania Superior Court's recent ruling in Commonwealth v. Diodoro; the Ninth Circuit's recent ruling in United States v. Kuchinski; and the Tenth Circuit's September 2002 ruling in United States v. Tucker.
Posted at 11:00 PM by Howard Bashman



"Same-sex 'marriage' heads to high court": The Washington Times today contains an article that begins, "Maryland's highest court is scheduled to hear arguments Monday on the same-sex 'marriage' issue." As noted in this recent post, that court is now webcasting its oral arguments.
Posted at 10:15 PM by Howard Bashman


"Supreme Court agrees to hear 'Bong Hits 4 Jesus' case": Stephen Henderson of McClatchy Newspapers provides this report.
Posted at 10:08 PM by Howard Bashman


"Court to decide 'Bong hits 4 Jesus' banner case": James Vicini of Reuters provides this report.

Reuters also reports that "Court to decide case on Bush's faith initiative."

And Greg Stohr of Bloomberg News reports that "Attack on Bush's Faith-Based Initiative Draws Top Court Review."
Posted at 05:38 PM by Howard Bashman



"Debate Framers: How environmentalists can win over the Supreme Court." Douglas T. Kendall and Jennifer Bradley have this essay online today at The New Republic.
Posted at 05:30 PM by Howard Bashman


In commentary regarding a proposed Michigan law known as the Coercive Abortion Prevention Act: Yesterday, The Detroit News published two competing op-eds on the topic. Jeffery M. Leving and Glenn Sacks had an op-ed entitled "Bill assumes male guilt and opens door to unfair prosecutions." And Suanne Thompson had an op-ed entitled "Does abortion coercion bill trample rights? No. Women need protection from undue pressure to have abortions."

You can view the text of this proposed piece of legislation, and view where it stands in the enactment process, via this link.
Posted at 05:25 PM by Howard Bashman



"First Major Post-Bush v. Gore Case to Go Out Not with a Bang But a Whimper": Law Professor Rick Hasen has this post today at his "Election Law" blog.
Posted at 03:25 PM by Howard Bashman


"Harvard Law School Celebration of Justice Scalia": Ed Whelan has this post today at National Review Online's "Bench Memos" blog.
Posted at 03:15 PM by Howard Bashman


U.S. Supreme Court grants review in "Bong Hits 4 Jesus" case and case asking whether taxpayers may sue to challenge the White House program of promoting federal aid to religious "faith-based" organizations: You can access today's Order List at this link.

At "SCOTUSblog," Lyle Denniston has a post titled "Court grants three cases."

And The Associated Press reports that "Court Takes 'Bong Hits 4 Jesus' Case" and "Faith-Based Charities to Be Reviewed."

My earlier coverage of the Ninth Circuit's ruling in the "Bong Hits 4 Jesus" case can be accessed here.

And my earlier coverage of the Seventh Circuit's 2-1 ruling that taxpayer standing existed to challenge the White House's program of promoting federal aid to religious "faith-based" organizations can be accessed here, while my coverage of the denial of rehearing en banc over the dissent of four judges can be accessed here.
Posted at 03:00 PM by Howard Bashman



You're rehired! And now you're fired! A unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit today issued an opinion that begins, "The issue on appeal is whether an employer has satisfied an arbitrator's award when it pays the employee back wages and simultaneously terminates the employee a second time for conduct independent of the first termination. This is a novel issue for this court."

Today's ruling holds that "the employer's payment of back pay acted as an effective reinstatement and the employer was free to terminate the employee a second time based on independent grounds, pending a second arbitration."
Posted at 01:10 PM by Howard Bashman



"State ends battle for girls' health records; Attorney general settles with Planned Parenthood over seizure of medical data": The Indianapolis Star today contains an article that begins, "Indiana Attorney General Steve Carter has conceded a longstanding legal battle with Planned Parenthood of Indiana over minors' reproductive health clinic records. On Thursday, representatives from Planned Parenthood and Carter's office signed a settlement agreement worked out after a Sept. 22 Indiana Court of Appeals ruling said a minor's right to privacy trumps the state's desire to search for evidence of abuse."
Posted at 10:35 AM by Howard Bashman


"A Surfeit of Secrecy: The Bush administration relies on a little-known tool to hide its antiterrorism activities from public scrutiny." Dahlia Lithwick has this essay in the December 2006 issue of The American Lawyer.
Posted at 10:33 AM by Howard Bashman


"Benchslapped: Is Judge Posner Getting Enough Fiber These Days?" David Lat has this post today at "Above the Law."
Posted at 10:28 AM by Howard Bashman


"Court rejects inquiry into leak to O'Reilly": The Kansas City Star today contains an article that begins, "The leak of Kansas abortion records to television commentator Bill O'Reilly won't be investigated by the Kansas Supreme Court."
Posted at 10:11 AM by Howard Bashman


"New Rules on Retaining Digital Business Documents": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition."

Additional background on the amendments to the Federal Rules of Civil Procedure governing electronic discovery, which take effect today, can be viewed at this link.

My related post from earlier this morning can be accessed here.
Posted at 10:00 AM by Howard Bashman



"Judge's Words Cost Him a Suspension of 30 Days": The New York Times today contains an article that begins, "In a 50-page opinion issued on Thursday, the New Jersey Supreme Court thoroughly analyzed a defendant's bad behavior. Nothing unusual -- except that the defendant was a judge."

And The Trenton Times reports today that "Judge suspended for brashness; Supreme Court puts Mathesius on one-month leave."

You can access yesterday's ruling of the Supreme Court of New Jersey at this link.
Posted at 08:37 AM by Howard Bashman



"Mt. Soledad cross vote reaffirmed by justices; Land transfer upheld in appellate decision": The San Diego Union-Tribune today contains an article that begins, "An appeals court ruling yesterday that upheld a voter-approved measure to transfer land under the Mount Soledad cross to the federal government boosted the hopes of cross supporters but is far from the final word in the emotionally charged legal battle."

My earlier coverage appears at this link.
Posted at 08:27 AM by Howard Bashman



"Raiding your inbox: The Bush administration's assault on privacy rights soon could reach e-mail messages stored on the Web." The Los Angeles Times today contains an editorial that begins, "In the latest illustration of the Bush administration's disregard for your privacy, the Justice Department is trying to convince a panel of federal judges that the FBI should be free to read your e-mail without obtaining a warrant. It's not all your e-mail -- only messages left on a Web-based system such as Hotmail or on your Internet service provider's computers."
Posted at 08:24 AM by Howard Bashman


"Reid's skills on offense to be tested; His minority leadership was strong; now he'll tackle Bush head-on": This article appears today in The Los Angeles Times.
Posted at 08:20 AM by Howard Bashman


"Same-sex marriage hearing expedited; Judge rules SJC should take on suit": The Boston Globe today contains an article that begins, "Governor Mitt Romney will get another chance to rally against gay marriage before he leaves office in January after a single justice ruled yesterday that the full state Supreme Judicial Court should rush to hear his lawsuit seeking to override the Legislature and put a constitutional amendment on the ballot that would ban same-sex marriages."

The Boston Herald reports today that "Full court to hear gay wed ballot push."

And The Republican of Springfield, Massachusetts reports today that "SJC debate eyes gay nuptials vote."
Posted at 08:10 AM by Howard Bashman



"Supreme Court Advocacy Project On School Desegregation": This article appears in the latest issue of The Harvard Law Record.
Posted at 08:07 AM by Howard Bashman


"A Lawyer in Marine Corps Khaki Wins Australian Support for His Guantanamo Client": The New York Times today contains an article that begins, "David Hicks, a 30-year-old Australian who is about to begin his sixth year at Guantanamo Bay, is gaining supporters for his release from diverse quarters."
Posted at 07:50 AM by Howard Bashman


"Company challenges FCC rules on cell phone jamming gear": c|net News.com provides a report that begins, "A small Florida company is taking on the Federal Communications Commission to change regulations prohibiting the sale of equipment used to scramble cell phone signals to local and state agencies. The company, CellAntenna, filed a lawsuit in the U.S. Court of Appeals in the 11th Circuit in Atlanta on November 22 challenging the Communications Act of 1934, which is enforced by the FCC."
Posted at 07:45 AM by Howard Bashman


"If there could be a case, then don't delete that e-mail; New rules protect data in the event of legal action": Today's issue of USA Today contains an article that begins, "An obscure change in the rules regarding production of evidence in federal court -- which goes into effect today -- will force companies to better manage the volumes of electronic information they generate and keep."

The Associated Press reports that "New Rules Compel Firms to Track E-Mails."

And online at The Pocket Part of The Yale Law Journal, U.S. District Judge Lee H. Rosenthal has an essay entitled "A Few Thoughts on Electronic Discovery After December 1, 2006."

Also today, two amendments to the Federal Rules of Appellate Procedure officially take effect. My current "On Appeal" column for law.com is headlined "What Do the Federal Appellate Procedure Rule Changes Mean for You?"
Posted at 07:38 AM by Howard Bashman



"List of Candidates for State's Top Court Goes to Spitzer for an Early Decision": Joseph Goldstein has this article today in The New York Sun.
Posted at 07:30 AM by Howard Bashman






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