How Appealing

Wednesday, December 6, 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 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

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