How Appealing

Friday, May 31, 2002
HERE AND THERE: FindLaw has posted the emergency motion that the U.S. government filed to stay an order of a Virginia federal district court that granted "the federal Public Defender * * * private, unmonitored access to an enemy combatant * * * who was captured in Afghanistan and is being held by the United States military" at the Naval Station Brig in Norfolk, Virginia. You can access a copy of the motion here.

It's once again the time of year when the financial disclosures of the U.S. Supreme Court's Justices are reported as news. You can access this evening's Associated Press report here.

Finally for now, FindLaw also has posted a book review in which Roger Clegg, general counsel of the Center for Equal Opportunity, reviews a book entitled "The Rehnquist Court: A Retrospective." The book, edited by Martin H. Belsky, is an anthology. Each of its fifteen chapters is written by one or more different authors. You can access Mr. Clegg's book review here.
Posted at 19:51 by Howard Bashman

MAY 31, 2002 OFFICIALLY DECLARED FIRST AMENDMENT DAY: At least here on the east coast of the USA, where today the D.C. Circuit has ruled unconstitutional a regulation banning leafleting and other demonstration activities on the sidewalk at the foot of the House and Senate steps on the East Front of the United States Capitol. You can access the D.C. Circuit's decision here.
Posted at 14:10 by Howard Bashman

BREAKING NEWS: A three judge federal district court panel in Philadelphia has just declared unconstitutional the federal law known as the Children's Internet Protection Act. You can read early news coverage of this development here. You can access the opinion, written by Third Circuit Chief Judge Edward R. Becker, here (in HTML format) or here (in PDF format). The federal government now has the right to appeal from this ruling directly to the Supreme Court of the United States.

You can access the text of the Act here. The ACLU has a Web page devoted to the case, which you can access here.
Posted at 09:37 by Howard Bashman

A MUST READ: Journalist Susan Konig has written an extraordinarily moving essay about turning 40 yesterday, on the final day of the World Trade Center cleanup and recovery effort. A childhood friend of hers was among the many people murdered in the September 11th terrorist attack on New York City.
Posted at 08:12 by Howard Bashman

A QUICK LOOK AT FRIDAY'S NEWSPAPERS: The Washington Post reports that the federal government is defending Washington, D.C.'s handgun ban, even though that ban appears to conflict with the Justice Department's current understanding of what the Second Amendment means. And, University of Chicago Law School Professor Cass R. Sunstein has an op-ed piece in The New York Times criticizing the U.S. Supreme Court's ruling earlier this week in Federal Maritime Commission v. South Carolina State Ports Authority. You can read my summary of that decision here.
Posted at 00:16 by Howard Bashman

Thursday, May 30, 2002
FOR THE LOVE OF BEANIE BABIES: Today, for the second time in twenty days, the U.S. Court of Appeals for the Seventh Circuit issued an opinion involving Beanie Babies. On May 10, 2002, it was Circuit Judge Terence T. Evans who had the pleasure of addressing the sentencing challenge of a criminal defendant who had been convicted of bilking individuals intending to purchase Beanie Babies and Pokemon cards of their hard earned cash. You can access that opinion here, and you can access my related posting of May 10th here.

The only collectibles involved in today's opinion were Beanie Babies, and the author of today's opinion was Circuit Judge Richard A. Posner. The case decided today arose when the manufacturer of Beanie Babies sued a publisher of collectible guidebooks for copyright and trademark infringement. You see, the publisher sold a variety of Beanie Baby guidebooks that contained color photographs of the entire Beanie Baby product line. The publisher conceded that its photographs of Beanie Babies were derivative works, which, being copies of copyrighted works, can be produced only under license from the manufacturer. And the publisher, of course, had no license. But, while lacking a license, the publisher did possess a defense, namely the doctrine of fair use. And this is where Judge Posner's opinion began to get quite interesting. He explained:

The defense of fair use, originally judge-made, now codified, plays an essential role in copyright law. Without it, any copying of copyrighted material would be a copyright infringement. A book reviewer could not quote from the book he was reviewing without a license from the publisher. Quite apart from the impairment of freedom of expression that would result from giving a copyright holder control over public criticism of his work, to deem such quotation an infringement would greatly reduce the credibility of book reviews, to the detriment of copyright owners as a group, though not to the owners of copyright on the worst books. Book reviews would no longer serve the reading public as a useful guide to which books to buy. Book reviews that quote from ("copy") the books being reviewed increase the demand for copyrighted works; to deem such copying infringement would therefore be perverse, and so the fair-use doctrine permits such copying. On the other hand, were a book reviewer to quote the entire book in his review, or so much of the book as to make the review a substitute for the book itself, he would be cutting into the publisher's market, and the defense of fair use would fail.

* * *

A photograph of a Beanie Baby is not a substitute for a Beanie Baby. No one who wants a Beanie Baby, whether a young child who wants to play with it or an adult (or older child) who wants to collect Beanie Babies, would be tempted to substitute a photograph. * * *
And, before the opinion concludes, Judge Posner spends some time discussing the television programs "Twin Peaks" and "Seinfeld." By reading today's ruling, you thus will learn not only about copyright law and the fair use doctrine, but you may also learn a thing or two about American culture today and over the past decade or so. Oh, by the way, the Seventh Circuit vacated the district court's injunction in favor of the manufacturer of Beanie Babies -- the injunction had prevented the publisher from selling the books -- and sent the case back to the trial court for further proceedings.

Trust me, I don't go out looking for the opinions that deal with Beanie Babies, Pokemon cards (see my post of May 10th), and toy trolls (see my post of May 17th). But, for better or worse, there seems to be no escaping them.

Finally for now, thanks to William Quick of for his kind words of recommendation earlier today.
Posted at 21:20 by Howard Bashman

HECKLING IS NOT NICE: And, in Texas, it may also be a crime. The Court of Criminal Appeals of Texas, that state's highest court in criminal cases, yesterday voted 6-3 to require a defendant to stand trial on the Class B misdemeanor offense of disrupting a meeting or procession. The heckler in question, a college student then enrolled at the University of Texas at Austin, was charged with interrupting a speech by former President Bush (you know, the one who served between Presidents Reagan and Clinton). You can access the majority opinion here. You can access the dissenting opinion here.
Posted at 17:11 by Howard Bashman

THIRD CIRCUIT IN THE NEWS: The Associated Press offers this report on a case that the U.S. Supreme Court re-conferenced today involving the lawfulness of death penalty instructions that had been widely used in Pennsylvania state courts. You can access the Third Circuit's ruling here. The AP's report states that the Third Circuit's ruling, if allowed to stand, may require at least 30 additional death sentences to be set aside in Pennsylvania. You can access the U.S. Supreme Court's docket in the case here. A decision on whether the Supreme Court will grant review may issue on Monday, June 3, 2002.
Posted at 14:29 by Howard Bashman

GET ME RE-WRITE!: The Associated Press has just posted a news article entitled: "Arkansas to Offer Clinton Class." Hmm, what does that mean?
Posted at 12:20 by Howard Bashman

GET READY THIRD CIRCUIT: The Immigration and Naturalization Service has expressed its intent to appeal from the ruling yesterday of the U.S. District Court for the District of New Jersey requiring that deportation hearings for individuals caught-up in the Justice Department's terrorism probe be open to the public unless specific compelling evidence exists in a given case demonstrating a need for secrecy. The Los Angeles Times has this report. According to the news article, the federal government has already appealed to the Sixth Circuit from a similar ruling by a Detroit-based federal district judge. The article further reports that the Sixth Circuit denied the government's request for an emergency stay of that earlier ruling. Update: Courtesy of, you can access the text of the New Jersey district court's ruling here. Careful readers may note that at the top of page 4 of the PDF file containing the opinion, the trial court writes of "the terrorist attacks of September 11, 2002." The year that the court actually had in mind, of course, is 2001. Further update: CNN is now reporting that the Justice Department definitely will be appealing this decision to the Third Circuit. You can access CNN's report here.
Posted at 06:53 by Howard Bashman

GUNS AND TELEPHONES: Thursday's edition of The Washington Post contains a front page article on how the Solicitor General's Second Amendment footnote is being used to challenge the District of Columbia's sweeping handgun ban. You can read that article here. Also in that paper, an article suggesting that unlisted telephone numbers would not have been sufficient to save the Court of Appeals of Maryland -- that state's highest court -- from the redistricting-related controversy in which it now finds itself embroiled.
Posted at 01:03 by Howard Bashman

Wednesday, May 29, 2002
FIRST UP TONIGHT, a new blogger template. The old template -- with its three columns -- caused my posts to seem quite lengthy, especially on 15-inch computer monitors. The new template has just two columns, allowing more room for the text of my posts and requiring less scrolling from you, the reader. Let me know whether you like the new template; I do.
--- AND NOW, back to our regularly scheduled programming.

MORE PROOF THAT TIME IS MONEY: Economics Professor Ian Walker of the University of Warwick, in Great Britain, has mathematically proven that time is money. Various major news outlets, which apparently harbored great doubts about the truthfulness of that common saying, have treated Professor Walker's proof as an astonishing accomplishment. Click here for coverage from the BBC. Click here for coverage from CNN. Click here for a "time is money" calculator from the corporate sponsor of Professor Walker's study, which -- get this -- is a bank. Be forewarned, the "time is money" calculator will require you to identify the region of Great Britain in which you work. This may require most of my readers to answer creatively (but not my friends at OxBlog, of course).

LEARNING THE HARD WAY THAT TIME IS MONEY: Today a ruling from the Superior Court of Pennsylvania helped further prove the accuracy of Professor Walker's study. Unfortunately, it does not appear that the newspaper reporters whose contempt citations that court affirmed by a 2-1 vote are sponsored by a major bank, although they probably wish they were right about now. (That use of Fatboy Slim lyrics was entirely unintentional, although I'm reliably advised he's also of British origin.) A Pennsylvania state trial court judge fined two newspaper reporters -- one from The Philadelphia Inquirer, the other from The Philadelphia Tribune -- $100 per minute starting at 12:00 noon on December 13, 2000 until the Commonwealth finally rested its case on rebuttal for failing to disclose to the government unpublished statements that the defendant in a murder case had previously made to these reporters. Neither reporter complied, and each was fined $40,000. In today's decision, the Superior Court affirmed these contempt citations but remanded for imposition of a smaller fine. Senior Judge Olszewski wrote the majority opinion. Judge Stevens dissented and would have held that the First Amendment barred the contempt citations in their entirety.

READING IS FUNDAMENTAL?: Instead of mentioning yesterday's excellent opinion by Judge Posner at the close of my lengthy (but riveting) summary posted last night of yesterday's U.S. Supreme Court developments, I saved the decision for today. A plaintiff with an eye condition that prevents him from holding a job in which he has to spend more than fifty percent of his time reading sued his former employer, AT&T, for allegedly failing to place him in a job that would require less reading than his former job necessitated. AT&T won the appeal, however, because in the United States of America reading isn't a major life activity. You can access the court's opinion here.

Judge Posner explained:

We can imagine, though with some difficulty, a society of bookworms in which a person unable to read more than 50 percent of the time would be deemed unable to engage in a major activity of life. That is not our society. To be unable to read all day long is a misfortune for someone who loves to read or who wants to hold a job (a judgeship for example!) that requires continuous reading, but the ability to read all day long is not a major life activity. * * * True, he cannot read at all without some discomfort, because his difficulty in focusing is continuous; but discomfort and disability are not synonyms. Otherwise a very large fraction of the work force would be disabled.
Under the Americans with Disabilities Act, not all medical or physical conditions that might be described as "major" or "disabling" in common parlance qualify as actionable. Last year I briefed an appeal on behalf of a corporate defendant that was sued by a former employee whose medical condition caused a seven-month absence from work. The Third Circuit ruled in favor of my client, holding that the plaintiff was not disabled. You can access my brief in that case here.

At the close of his opinion, Judge Posner rejected the plaintiff's argument that the defendant had committed a procedural error that should result in taking away the victory that the defendant won in the trial court. In explaining why the Seventh Circuit panel was refusing the plaintiff's procedural argument, Judge Posner wrote that to accept the argument "would ordain redundancy and create a trap for the unwary, of which the law contains a sufficient number as is to keep us entertained." It's not every day that a federal appellate judge gets to be both eloquent and facetious in the very same sentence. And that's just one more reason why this jurist is among my favorite writers and thinkers in the federal appellate system.

Finally for tonight, those of you who may have thought that I made mention earlier today of the Ninth Circuit's reversal of the Supreme Court of Guam's ruling concerning the right of Rastafarians to bring marijuana onto that island simply because it involved Rastafarians, marijuana, Guam and/or the Ninth Circuit would be very wrong. The legal issues that the Ninth Circuit's ruling addresses are indeed most fascinating.
Posted at 21:33 by Howard Bashman

RASTAFARIANS DEALT SETBACK IN GUAM: Yesterday a Ninth Circuit panel ruled 3-0 that Rastafarians don't have a right to bring marijuana onto that island even though marijuana use is sacramental in the practice of the religion. In so ruling, the Ninth Circuit reversed the decision of Guam's Supreme Court, which had held that banning the importation of marijuana violated the defendant's right to free exercise of religion. You can access the Ninth Circuit's ruling here.
Posted at 09:55 by Howard Bashman

YAY! WE WIN: Yesterday, the U.S. Court of Appeals for the Third Circuit, in the pro bono prisoner's civil rights appeal that that Court appointed me to handle last summer, ruled in favor of my client, the prisoner. You can access my prior posting on this case here. You can access the appellate brief that I filed in the case here. Because the Third Circuit decided the appeal by means of a "not for publication, not precedential, unreported, per curiam opinion," the decision's text is not available on the Third Circuit's Web site. In three weeks, the case will return to the U.S. District Court for the Western District of Pennsylvania, where Chief District Judge D. Brooks Smith had dismissed the prisoner's suit in April 2000.
Posted at 08:07 by Howard Bashman

Tuesday, May 28, 2002
THE U.S. SUPREME COURT TODAY issued four opinions, granted review in four new cases, and allowed Texas to administer the death penalty to a man who, at the age of 17, killed the father of a federal appellate judge.

The four opinions issued today don't qualify as end of the Term "blockbusters," but then again it's still May. Two of the four decisions were at least moderately important, unless you are a patent lawyer or a states' rights booster, in which event they were really important rulings. A third decision might qualify as really important to lawyers who handle social security cases on a contingent fee basis. You know who you are. And the fourth case -- well, I'll save that one for last. The Court is scheduled to take the bench again, and issue more opinions and orders, on Monday, June 3, 2002.

Score another 5-4 victory for states' rights: Perhaps the most divisive issue to roil the Supreme Court over the past five to ten years came to the fore again today when the Court issued its opinion in Federal Maritime Commission v. South Carolina State Ports Authority, No. 01-46 (U.S. May 28, 2002). Today it was Justice Thomas's turn to lead the charge on behalf of himself and his four other states' rights colleagues, the Chief Justice and Justices O'Connor, Scalia and Kennedy. Justice Breyer wrote the principal dissent, in which Justices Stevens, Souter and Ginsburg joined. Justice Stevens chimed in with a short additional dissent too. According to news reports, Justice Breyer read a portion of his dissent from the bench, which is often understood as signifying how firmly the dissenters disagree. (Its practical effect, however, is simply to hold up distribution of the Court's decision and the dissents to those many of us who aren't then seated in the U.S. Supreme Court's courtroom.)

The crux of today's disagreement is this. The Federal Maritime Commission, a federal government agency, allows individuals and companies to file claims against state agencies alleging that the state agencies have violated federal maritime law. In this case, the state agency in question maintained that its sovereign immunity, as reflected in the Eleventh Amendment to the U.S. Constitution, relieved the agency from having to respond to the claim. The five Justice majority reasoned that the Eleventh Amendment is simply one example of the far broader protection that non-consenting states possess against having to respond to claims made against them by individuals and companies in a federal forum. The four dissenters would have ruled that the Eleventh Amendment means what it says, that states don't have protection from suit beyond that amendment's text, the amendment only speaks of suits filed in a federal court, and a federal administrative agency is not a federal court. Thus, according to the dissenters, the state's Eleventh Amendment immunity would only kick-in if the individual or company won some relief from the administrative agency and then sued in federal court to enforce that administrative decision. The catch, though, is that the Federal Maritime Commission could itself sue the state agency to enforce the award, and in that event the state could not assert Eleventh Amendment immunity in response to the federal government's suit.

A few quick observations: The Court's Eleventh Amendment jurisprudence is unusual in that the four more liberal Justices find themselves in the role of strict constructionists while the five-member majority expounds upon a theme that the majority freely admits transcends the Constitution's text. The four dissenters have gone on record in earlier dissents as ready to overrule the foundation of the Court's jurisprudence in this area should a fifth vote to do so ever become available. These cases thus involve a subject matter where a change in the Court's personnel could make a big difference. Finally, although Sixth Circuit nominee Jeffrey S. Sutton has been involved on the winning side of a bunch of these 5-4 states' rights rulings, he seems (from the docket of this case) to have had no involvement here. It therefore does not appear that pro-federal-maritime-law interest groups will be joining any protests against his nomination.

Hard to pronounce, but easy to decide: In Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., No. 00-1543 (U.S. May 28, 2002), the Court unanimously vacated the Federal Circuit's ruling -- a ruling that critics asserted improperly made it more difficult for inventors to prove patent infringement. Former D.C. Circuit Judge, and U.S. Supreme Court nominee, Robert H. Bork argued this case for the petitioner. As the transcript of oral argument in this case indicates, while the friends and colleagues of a former judge may still call him or her "Judge," in the U.S. Supreme Court a former judge arguing a case is simply called "Mr.," "Mrs.," "Ms.," or "Miss" as appropriate under the circumstances.

Lawyers for social security claimants may be paid on a contingent fee basis: What more is there to say? Click here for today's 8-1 ruling. Justice Ginsburg wrote the majority opinion; Justice Scalia, her former D.C. Circuit colleague, was the lone dissenter. (The Court's description of the circuit conflict that led the Court to grant review suggests that the Third Circuit was on the losing side of today's ruling. I'm not sure I agree, but I promise to make up my mind by July 2002 when The Legal Intelligencer will publish my annual U.S. Supreme Court/Third Circuit round-up. Click here to see last year's installment of that column.)

When the Chief Justice begins the Court's opinion in your criminal case by describing in lurid detail the murders you have been convicted of committing, a favorable ruling is most unlikely to follow: Further confirming this observation is today's decision in Bell v. Cone, No. 01-400 (U.S. May 28, 2002). The Sixth Circuit had granted habeas relief based on its conclusion that the defendant had failed to receive any assistance of counsel when his defense attorney called no witnesses and made no closing argument in the sentencing phase of this capital murder trial at which the defendant was sentenced to death. The U.S. Supreme Court, by a vote of 8-1, reversed. Justice Stevens was the lone dissenter. The Chief Justice's opinion does a fine job of explaining how the defense attorney's conduct under the circumstances was quite reasonable.

Cert. granted in four cases: And here they are: 1. The cross-burning case from the Virginia Supreme Court which I summarized in this post from early this morning (congrats to David Savage for picking this one correctly). As Mr. Savage's Los Angeles Times article of this morning (which has since been updated to note the granting of review) observed, the U.S. Supreme Court may use this Virginia case to address the issues more recently raised by the Ninth Circuit's ruling in the so-called Nuremberg Files case. Indeed, if review is sought in the U.S. Supreme Court from the Ninth Circuit's ruling in that case, the petition likely will be held pending the Court's ruling on the cross-burning case granted review today. Then the Ninth Circuit's decision could be bounced back for reconsideration if the Court affirms the Virginia Supreme Court's ruling. 2. United States v. Recio, a case that the Solicitor General's Office suggested in its cert. petition could be relevant to the war against terror. 3. A case involving federal benefits for orphaned children. (See this AP report.) This case has been a likely candidate for review for some four months now, since Justice O'Connor granted a motion to recall and stay the mandate of the Supreme Court of Washington on January 29, 2002. 4. Finally, the Court will review a case in which Boeing Corp. seeks a tax refund of $419 million. As someone famous once said, $419 million here, $419 million there, and soon you're talking real money. The AP has this report.

What a country: On the same night that the state of Texas executed the man who, at the age of 17, killed the father of a federal appellate judge, the Supreme Court of Missouri granted a stay of execution to another man who killed at the age of 17. The Missouri court's stay appears to be based on that court's belief that a pending U.S. Supreme Court case involving the constitutionality of executing the mentally retarded may shed light on the constitutionality of executing someone who killed before reaching the age of 18. See this report on the Missouri court's stay. The contrast between these developments did not escape the attention of The New York Times, which offers this article in its Wednesday edition.

Finally, as promised earlier today: Here's the link to Jonathan Groner's in-depth story behind the story on the D. Brooks Smith confirmation battle (courtesy of Legal Times). And don't miss Eugene Volokh's post from earlier today suggesting that Benjamin N. Cardozo may already have secured for himself the distinction of being the first Hispanic U.S. Supreme Court Justice.
Posted at 21:19 by Howard Bashman

COURT SAYS "YES" TO COOL MOTTO, "NO" TO VIDEO POKER: The Supreme Court of Georgia, whose Web site sports the cool motto "fiat justitia, ruat caelum" (which translates into "let justice be done, though the heavens may fall"), today reinstated Georgia's law criminalizing the use of video poker machines. You can access the ruling here. A state trial court had struck down that law, finding it to be unconstitutionally vague and overinclusive.
Posted at 15:49 by Howard Bashman

COMING SOON TO A BLOG NEAR YOU: This week's edition of Washington, DC's Legal Times contains an article that promises to provide "[a]n inside look at the successful Senate Judiciary Committee journey for [Third Circuit nominee] D. Brooks Smith." As soon as the full text of that article is available online (which could occur tonight), "How Appealing" will provide a link to the article.
Posted at 14:18 by Howard Bashman

THREATS, INTIMIDATION, AND THE FIRST AMENDMENT: In today's edition of The Los Angeles Times, U.S. Supreme Court correspondent David G. Savage reports that the Court today could grant review of a Virginia Supreme Court ruling that, by a vote of 4 to 3, struck down that state's law criminalizing cross-burning as violative of the First Amendment. [Update: Indeed, the U.S. Supreme Court did grant review in this, and several other, cases today.] Be sure to check back here tonight for a summary and analysis of today's U.S. Supreme Court opinions and orders.

Thanks to PejmanPundit for his very kind words about my site yesterday. He wrote: "Howard Bashman has a terrific blog that is devoted to the issue of appellate litigation. If you want a good explanation of how appellate law is being shaped, you can do no better than to go to his site and learn." You are simply too kind.
Posted at 08:23 by Howard Bashman

WILL THIS POND BE CLOSED TO FISHING?: Tuesday's edition of The Washington Post contains an editorial that criticizes Senate Judiciary Committee Chairman Patrick J. Leahy for asking U.S. Court of Appeals for the D.C. Circuit nominee Miguel A. Estrada to produce copies of all of Mr. Estrada's written recommendations made while serving in the Solicitor General's Office concerning whether cases should be appealed and what position the government should take as friend of the court. These two articles provide possible reasons why Senator Leahy has sought access to the documents.
Posted at 00:14 by Howard Bashman

Monday, May 27, 2002
E-JURISDICTION: According to The New York Times, the U.S. Court of Appeals for the Fourth Circuit is scheduled to hear oral argument on Monday, June 3, 2002 in an important Internet libel case that poses the question whether a plaintiff can bring suit wherever allegedly defamatory online material is read. You can access the NYTimes article here.
Posted at 23:47 by Howard Bashman

JUST IN TIME FOR SUMMER: reports there's water ice on Mars. No mention is made of what flavors are being offered. Plus, still no appellate courts on that planet, as best as anyone can tell.
Posted at 20:46 by Howard Bashman

JOHN WALKER LINDH AND THE SECOND AMENDMENT: Over at The National Review's Web site, columnist Dave Kopel has written a very interesting piece addressing the Second Amendment defense recently asserted by counsel for defendant John Walker Lindh.
Posted at 17:43 by Howard Bashman

ON THIS MEMORIAL DAY: You must read this editorial from today's New York Times. Please be sure not to miss its last paragraph.

DEATH PENALTY NEWS: 1. The U.S. Court of Appeals for the Third Circuit has scheduled oral argument in a very important death penalty appeal for Monday, July 8, 2002 at 3:30 p.m. The Commonwealth of Pennsylvania has appealed from a federal district court's decision that set aside the death sentence in this case. Several other federal district judges in Pennsylvania have since set aside death sentences relying on the same rationale. 2. Today's New York Times contains a lengthy article reporting that the man who, at age 17, killed the father of a federal court of appeals judge is scheduled to be put to death by the state of Texas on Tuesday night.
Posted at 11:16 by Howard Bashman

Sunday, May 26, 2002
ONLY ON THE INTERNET: U.S. News & World Report Senior Writer Michael Barone has penned an opinion piece entitled "Making the case: The lawlessness of today's racial quota and gun control liberals may be coming under serious challenge." You can access this "Web exclusive" here.

LET THE RIVER FLOW: Thanks to a reader in Omaha, Nebraska for emailing information about an appeal pending in the U.S. Court of Appeals for the Eighth Circuit challenging court orders that blocked the U.S. Army Corps of Engineers from changing the Missouri River's flow. As the reader's email explains, "a tremendous fight is going on over whether the Corps of Engineers should change the river's flows to encourage animal propagation. Farmers and boosters of the barge industry and recreational interests strongly oppose any change, saying they would be harmed. Environmentalists support the change, saying the river has been converted into a drainage ditch sapped of ecological vitality." The reader advises that the appeal is "of great interest to" those living in "states along the Missouri River." The reader also provided this link to recent coverage of the appeal in The Omaha World-Herald newspaper. And, here's an editorial about the case published in today's edition of that newspaper.

U.S. SUPREME COURT GETS NEW IN-HOUSE COUNSEL:'s U.S. Supreme Court correspondent Tony Mauro has an interesting article on attorney Scott Harris, who on June 10, 2002 assumes the post of Counsel to the Supreme Court of the United States. What does that job entail? Read all about it here.

NEW NINTH CIRCUIT NOMINEE: President Bush has nominated Jay S. Bybee, who currently holds the very important job of assistant attorney general heading the Department of Justice's Office of Legal Counsel, to serve on the U.S. Court of Appeals for the 9th Circuit. The Recorder, via, offers this report on the nomination.
Posted at 22:00 by Howard Bashman

IN TODAY'S EDITION OF THE LOS ANGELES TIMES: U.S. Supreme Court correspondent David Savage summarizes the important cases still awaiting decision this Term on the Court's docket. Those rulings are expected by late June 2002. An op-ed contributor criticizes California's U.S. Senators for blocking conservative judicial nominees. And, the author of a letter to the editor recounts her experience attending jury duty on the day of the courthouse shooting that led to last week's California Supreme Court decision limiting government liability for that occurrence. You can access my posting on that decision here.
Posted at 12:13 by Howard Bashman

SCIENTIFICALLY RELIABLE EVIDENCE, part 2: In a posting last week, I mentioned the difficulty a highly regarded Philadelphia-based federal trial judge experienced in determining whether expert fingerprint comparison testimony was of sufficient scientific reliability to be admitted in a criminal trial. Today's edition of The New York Times contains an article which reports, not surprisingly, that federal trial courts have reached differing conclusions on the scientific reliability of handwriting analysis evidence. I am advised that these developments have caused believers in the scientific reliability of phrenology to become quite concerned.
Posted at 10:10 by Howard Bashman

Saturday, May 25, 2002
ALBERTO R. GONZALES -- White House Counsel, former Texas Supreme Court Justice, and leading candidate to be the first Hispanic nominated to serve on the U.S. Supreme Court -- is the subject of an interesting profile in the May 27, 2002 issue of The New Republic. You can access the article here.

WHAT REALLY HAPPENED AT SHOREWOOD HIGH SCHOOL: For one thing (as Justice Breyer might write), protestors did not prevent Chief Justice Rehnquist from receiving an award from his high school alma mater. For another (as Justice Breyer might also write), the Milwaukee Journal Sentinel was there to report on events. You can read its news coverage of the Chief Justice's appearance here.

OXBLOG has an excellent post about the very touching article that runs in tomorrow's New York Times chronicling the final communications received from those who had the horrible bad fortune to be on the floors above where the airplanes struck towers one and two of the World Trade Center last September 11th. Words simply cannot describe the sorrow and anger that the article justifiably will provoke.
Posted at 22:12 by Howard Bashman

GETTING TOO MUCH SLEEP?: Holiday weekends are a fine time to catch up on one's sleep. If you find yourself getting too much sleep, however, be sure to check out the cover story of this Sunday's New York Times Magazine. It is entitled "Nuclear Nightmares--Not if but when," and it addresses various nuclear terrorism scenarios that could occur in the USA. Correspondent/columnist Bill Keller is the author. After reading this article, you may never sleep worry-free again.

What to do with that extra awake time? An essay/book review in today's New York Times suggests that we should take a moment to embrace our own stupidity. Why should everyone admit to being stupid? Denying it, the essay states, would be sheer stupidity.
Posted at 14:04 by Howard Bashman

HEY NINTH CIRCUIT: Here's how the editorial board of The New York Times thinks you should rule in the medical marijuana/free speech case currently pending before you. Surprisingly, the editorial entirely overlooks the U.S. Supreme Court's ruling last term in United States v. Oakland Cannabis Buyers' Cooperative, where the High Court (pardon the pun) held that patients currently have no right to obtain marijuana for medical uses. Thus, while there certainly is a First Amendment component to the pending Ninth Circuit appeal that is the subject of today's NYT editorial, doctors who advise patients to acquire marijuana for medicinal use are, in effect, advocating the commission of a crime by their patients. And that, ironically, takes us full circle back to the Ninth Circuit's 6-5 en banc ruling in the so-called Nuremberg Files case. (Click here and here for my postings of last week discussing that decision.)
Posted at 13:46 by Howard Bashman

Friday, May 24, 2002
HOLIDAY WEEKEND ROUND-UP: Free speech; free silence (so long as you don't count the attorneys' fees); the judicial candidate whom The Wall Street Journal is promoting now; a different view on courthouse security from a reader; and another record-breaking day.

Free speech: The student protestors who caused the cancellation of Chief Justice William H. Rehnquist's speech at his high school alma mater today (see my posting from earlier today) likely missed out on a very interesting talk. The Chief Justice can be both charming and quite funny in his public appearances. The C-SPAN program "America & the Courts" provides a Web feed (using Real Player) of a profile of the Chief Justice, and the profile includes clips from various of his speaking appearances. As of this moment, though, the link is not working. You can try again later by clicking here and then clicking again on the link for the profile of the Chief Justice toward the bottom right of the "America & the Courts" Web page. One of the obviously very intelligent contributors to OxBlog takes issue with my characterization of today's events as involving the freedom of speech. I don't entirely disagree with Josh Chafetz's post. (How could I? He calls my site "excellent.") Obviously, the Chief Justice's public remarks were cancelled to avoid what probably would have been an embarrassing protest during what was supposed to be an event in his honor to present him with the school's first Tradition of Excellence Award. He could have spoken and endured the protestors, but either the school or the guest speaker (or both) elected not to go that route. My point, though, is that there is no reason why the protestors, to be effective, had to promise the disruption of the Chief Justice's remarks. They could have protested nearby, but outside of the auditorium, and anyone who sided with the protestors' views could have attended the protest rather than the Chief Justice's speech. In this ever diminishing world of ours, there remains more than adequate space (as the Blogosphere exemplifies) for all speakers to be heard without encroaching upon (or drowning out) one another. In this sense, then--by unnecessarily threatening to use their free speech rights in a way that caused someone else not to speak--the protestors engaged in action that diminished the listener's right to hear from his or her preferred speaker.

Free silence (so long as you don't count the attorneys' fees): Today Pennsylvania's Commonwealth Court issued a five-page opinion that should not be overlooked. An individual whom authorities had charged with interfering with the hunting of wildlife (he was acquitted of that charge) was convicted of the summary offense of refusing to produce identification to a Pennsylvania Wildlife and Game Commission Officer. The court held that because the defendant was not engaged in any unlawful activity at the time of the refusal--in fact he was at his house, where the officer had sought him for questioning--the defendant had no legal obligation to speak with or identify himself to the officer. Unfortunately for the defendant, both a district justice and a common pleas court judge had found him guilty of violating the law, which states: "When an officer is in the performance of any duty required by this title, it is unlawful for any person to resist or interfere in any manner or to any degree or to refuse to produce identification upon request of the officer. A violation of this section is a summary offense of the first degree." The Commonwealth Court's ruling not only overturned the defendant's conviction but also held that the statute was facially unconstitutional under the Fourth Amendment to the United States Constitution. So, in Pennsylvania, the right to freedom of silence remains, although that freedom, to be vindicated, may require the expenditure of a sizeable amount of attorneys' fees.

The judicial candidate whom The Wall Street Journal is promoting now: In Friday's edition, The Wall Street Journal's editorial page called on the U.S. Senate to move forward on President Bush's nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. You can access the editorial here. I, too, have previously praised Mr. Estrada's qualifications for a seat on that court (see the bottom of this linked article). The D.C. Circuit now has a total of four active judge vacancies, and President Bush has so far nominated two very highly qualified appellate advocates to serve on that court.

A different view on courthouse security from a reader: I received the following email from a reader in response to my post of last night advocating increased courthouse security for Pennsylvania's appellate courts:

"I would like to encourage you to rethink your advocacy of airport-style security screening for courthouses. These systems are expensive, waste everyone's time, place an artificial barrier between the public and their judicial system, and provide only an illusory sense of security. * * *

"When people call for costly new programs, they seem to forget that financial resources are limited. At the time the Los Angeles County Courthouse screening system was implemented, subscriptions to legal research materials for the judges' chambers were cancelled and budgets for judicial travel and continuing education were severely curtailed. I'm all for blind justice, but not ignorant justice. Perhaps it would have been better to fund the security system by cutting back on indigent medical care, forgoing the planned update of the County's 911 system, or raising sales taxes during the local recession?

"Your clients may be happy to let you bill them for the time you are queued up waiting in line to show the contents of your briefcase and wallet, especially in the morning and after the lunch recess. Or perhaps your bench officers don't mind if you stroll in late. If so, consider yourself unusually lucky. To those who argue that it is fine to trade off some time for increased safety, I would like to observe that limiting freeway speeds to 25 miles per hour would surely save more judges lives than implementing courthouse screening systems.

"As we lawyers work to make the courthouses our exclusive domain, we wonder why the public is slowly defunding the courts. Increasing judicial salaries, creating additional judgeships, or even upgrading courtrooms to handle new technologies, are political nonstarters in the state legislatures. Courthouses no longer provide the civic education and public entertainment functions that they once did. Rather than tell the public: 'Welcome. This is your justice system. and Thank you,' mass screening systems say: 'We assume you are a criminal. and You probably shouldn't be here anyway.' * * *

"I do not recall any instances in California of a judicial officer killed in a courthouse * * * . There were, however, several judges who appeared to have been assassinated at home. If the goal is to protect judges, lawyers, and the public in our courthouses, there are other policies far more effective than courthouse entrance screening. These include: subtle architectural modification of the bench, enhanced bailiff training, firearm training for bench officers, allowing criminals to understand that concealed carry permit holders will not be disarmed or identified in the courtroom, resources for off-premises judicial protection, better awareness and tracking of violent offenders, and, yes, wanding or other weapons screening for certain criminal and family law courtrooms."

This reader's thoughtful and insightful email hasn't caused me to change the views that I expressed last night, but these ideas and opinions certainly do merit consideration. And that's why I've quoted the most pertinent parts of that email here.

Finally, today was another record-breaking day: Thanks so much to Glenn Reynolds of InstaPundit.Com (sometimes also now known by the catchy title for his two links to my site today. Thanks, once again, to Eugene Volokh of The Volokh Conspiracy for his mention today. Thanks also to OxBlog, PejmanPundit, and everyone else who has found "How Appealing" worthy of mention. Until next time, I wish you, my readers, all the best.
Posted at 23:16 by Howard Bashman

GET READY NINTH CIRCUIT: The U.S. Department of Justice has appealed from an Oregon federal district court's ruling that rejected the federal government's challenge to Oregon's voter-approved assisted suicide law. (You can access the trial court's rulings here and here. The trial court's opinion was none too kind to the feds.) You can read a news story reporting on the federal government's appeal here. Can we infer anything from the fact that this hit the news on Friday evening before a holiday weekend? And, could another 6-5 en banc Ninth Circuit ruling be lurking not too far around the corner here? Just after the trial court's ruling issued approximately one month ago, The Portland Oregonian ran this story on the possibility of an appeal by the federal government to the Ninth Circuit.
Posted at 20:50 by Howard Bashman

FREEDOM OF SPEECH?: Protestors today caused the high school alma mater of Chief Justice William H. Rehnquist to cancel an assembly at which the Chief Justice was to receive the school's very first Tradition of Excellence Award. The group protesting the award called itself "Ad Hoc Coalition Protesting the Rehnquist Award." The Associated Press has this report.
Posted at 16:17 by Howard Bashman

THE DAY AFTER: Yesterday, the Senate Judiciary Committee voted 12-7 to approve the nomination of D. Brooks Smith to serve on the U.S. Court of Appeals for the Third Circuit. You can access press coverage on yesterday's vote here, here, here, here and here. Also yesterday, in advance of the vote, The Los Angeles Times ran this editorial entitled "Payback Game Over Judges." I can't provide a link to coverage from the nominee's hometown newspaper, The Altoona (Pa.) Mirror, because it doesn't post its articles to the Web.

A reader emailed yesterday to ask whether I thought that Chief Judge Smith, during his nearly fourteen years as a federal district judge, has been reversed in an unusually large number of cases. The number of times that a judge has been reversed is not as important as the reasons why a judge has been reversed. I have not undertaken to review the cases in which Judge Smith has been reversed to evaluate those reasons, but everyone should be very encouraged by the report in today's edition of The Legal Intelligencer that Third Circuit Chief Judge Edward R. Becker has taken a look at those reversals and found no reason for concern. One cannot find anyone smarter, more thorough or more hardworking in the entire federal appellate judiciary than Judge Becker, and his evaluation makes it unnecessary for me to conduct my own.

As I have previously explained, the Judiciary Committee's action yesterday is good news for both the Third Circuit and litigants who have cases on appeal there. I have no doubt that Judge Smith is qualified to serve on that federal appellate court, and the Third Circuit badly needs the assistance of an additional active judge at this time.
Posted at 14:00 by Howard Bashman

IT'S OK FOR PRISONS TO PROHIBIT SPERM SHIPMENTS TO PRISONERS' WIVES, SHARPLY DIVIDED EN BANC 9TH CIRCUIT RULES: To access the opinions of the eleven-judge en banc panel, which split 6-5 in this case, click here. The 9th Circuit decided this matter yesterday.
Posted at 06:17 by Howard Bashman

Thursday, May 23, 2002
TONIGHT, SOMETHING FOR EVERYONE: A look at today's reader mail; securing our nation's courthouses; electing state court appellate judges; in today's court rulings, one that's not quite all there; see who qualifies as "feeder judges" for U.S. Supreme Court clerkships; and, finally, wow what a day today was!

Today's reader mail: The following quotations are taken directly from today's reader mail. 1. "You really do run an excellent blog." 2. "I followed Eugene Volokh's link to your site, and enjoyed reading it very much. Your writing is accessible for non-lawyers, and certainly balanced and useful for lawyers." 3. "Just found your site today via Volokh- I imagine I will be coming here quite a bit. Even as a non-lawyer your site really intrigues me." 4. "I suspect you'll find that you've got an increasingly popular blog on your hands (I've already sent the link to a number of people), and I congratulate you on it." 5. "Hello. I recently discovered your excellent blog and thought I'd introduce myself." 6. "Hello from Omaha. Congratulations on your blog. Great stuff." Thanks to all who have written and to the many, many hundreds of others who visited today. My email address is appellateblog -at- You keep reading and I'll keep writing.

Securing our nation's courthouses: Earlier today, I posted an item about a woman who was shot dead by her husband inside a California county courthouse. That tragic occurrence has caused my thoughts to return, once again, to the important subject of courthouse security. In the federal court system, courthouse security is a top priority. This afternoon I had to attend a meeting with a judge in Philadelphia's federal courthouse, and before I could gain admission to the building I had to pass through a metal detector and have my possessions scanned through an x-ray machine much like you would see at an airport. In Pennsylvania's state court system, however, courthouse security is far from uniform. In fact, what is most distressing to me as an appellate lawyer is the current absence of any security screening at oral argument sessions for the Pennsylvania Supreme Court, the Pennsylvania Superior Court and the Pennsylvania Commonwealth Court, the three state appellate courts in Pennsylvania. For an attorney or member of the public to gain admission to the Court of Common Pleas of Montgomery County, Pennsylvania -- a trial court -- he or she must pass through a metal detector and have his or her possessions x-rayed. For an attorney or member of the public to gain admission to a state appellate courtroom in Pennsylvania, just walk right in -- no security screen exists. Given the great admiration that I possess for the fine men and women serving as Pennsylvania state appellate judges, this absence of security strikes me as intolerable. These judges are already overworked and far underpaid; the least we can do is provide them with adequate security to guarantee their safety. Please, Pennsylvania, provide adequate security for your state's appellate judiciary and courtrooms immediately.

Electing state appellate court judges: And, speaking of Pennsylvania's state appellate judiciary, now that the citizens of Pennsylvania have chosen the two major party candidates who will vie for the governorship in the fall, I would like to know the candidates' position(s) on whether Pennsylvania should continue its practice of electing state court appellate judges. I have expressed my views on this practice previously, in the September 2001 installment of my monthly appellate developments column, and I won't extend tonight's post by repeating those views here. Former Pennsylvania Governor Tom Ridge, who left Pennsylvania to secure our homeland, was a major proponent of abolishing elections for Pennsylvania's state appellate court judges. He failed in that effort. If you know the position(s) of Mike Fisher and/or Ed Rendell on this issue, please send me an email and tell me what you know.

In today's court opinions, one that's not quite all there: I have never had any problem using Adobe Acrobat to transform my Microsoft Word document into PDF files. Others, however, do not seem to have been as fortunate. Consult, for example, this non-precedential decision that the U.S. Court of Appeals for the Third Circuit posted today to its Web site. The opinion isn't all there. Something is amiss. How long will it take to fix this? Stay tuned and we'll see.

Who qualifies as "feeder judges" for U.S. Supreme Court clerkships?: Let's say, hypothetically speaking, you're a certain midwestern public law school from a state that happens to have an upper peninsula. Your thoughts right now might be turning to the Supreme Court of the United States, where your attorneys likely will be seated at respondent's table in several months. And, perhaps you'd be wondering where those exceptionally bright law clerks to the Justices worked before they reached the High Court. Fortunately, you can find some very relevant information right on your very own Web site. Click here to see a list of the federal court trial and appellate judges whose law clerks have gone on to clerk for U.S. Supreme Court Justices from 1989 through 1999.

Wow, what a day today was!: Thanks to Professor Eugene Volokh and his excellent blog, The Volokh Conspiracy, this very site that you are now reading has experienced approximately 1,000 page views in the past 24 hours. I join him in saying "wow" to that. Another blog site with quite a bit of interesting law-related posts is entitled "The Sound and Fury," written by Max Power. He posted this on his site earlier today: "IF I CAN'T BE Eugene Volokh or Glenn Reynolds when I grow up, Howard Bashman would be a pretty nifty alternative career path. And he's got an equally nifty blog, plus shares my fandom of Judges Easterbrook and Posner." That's very kind of you to say, Max.

Also today, the Senate Judiciary Committee approved the nomination of D. Brooks Smith to the Third Circuit. Here's a link to the story that runs in Friday's edition of The Legal Intelligencer. The article also explains that the nomination has the enthusiastic support of Third Circuit Chief Judge Edward R. Becker. The Associated Press's account of the vote explains that North Carolina Democratic Senator -- and likely presidential candidate -- John Edwards explained that he voted in favor of Smith because he believed Judge Smith would not let his personal views affect his judgment. Coincidentally, this blog made precisely this same argument with respect to judicial nominees one week ago today.
Posted at 20:48 by Howard Bashman

ONE LARGE STEP CLOSER: The Senate Judiciary Committee has just voted 12-7 to approve the nomination of D. Brooks Smith to serve on the U.S. Court of Appeals for the Third Circuit. According to this article just posted to The National Review's Web site, three Democratic Senators -- Delaware's Joseph Biden, Wisconsin's Herb Kohl, and North Carolina's John Edwards -- joined with the committee's nine Republicans in voting in favor of the nomination. The nomination will now have to be brought before the full U.S. Senate for a vote. Once that vote is scheduled -- it won't be happening today-- I will let you when it will take place.
Posted at 11:55 by Howard Bashman

UM, AREN'T YOU BASED IN THE D.C. CIRCUIT? Today The Washington Post's editorial board joins the editorial board of The New York Times (which weighed in on the subject yesterday) in urging the Senate Judiciary Committee to reject President Bush's nomination of D. Brooks Smith to the U.S. Court of Appeals for the Third Circuit. You can read the Post's editorial here. Anyone interested in my views on this subject can consult my posting of last night, which you can reach by clicking here.
Posted at 10:38 by Howard Bashman

FEEL SAFE NOW?: Individuals killed by a private person inside of a state courthouse have no stronger claim against the county and the local sheriff's department than individuals killed on the sidewalk in front of the courthouse, the Supreme Court of California ruled this week. You can access the opinion here.

The Associated Press is offering a report on today's Senate Judiciary Committee vote on Third Circuit nominee D. Brooks Smith. You can access that report courtesy of The New York Times at this link.
Posted at 10:25 by Howard Bashman

Wednesday, May 22, 2002
A VERY SPECIAL THANK YOU to UCLA Law Professor Eugene Volokh, currently the most active contributor to one of my favorite blogs, The Volokh Conspiracy, for his extraordinarily kind words this evening. Every nice thing he said about my site goes double for his. Plus, now that I've been endorsed by a leading proponent of the individual rights view of the Second Amendment, I'm starting to feel much more secure.
Posted at 23:21 by Howard Bashman

HERE AND THERE: It was a rather quiet day today in the appellate courts that I regularly monitor. The U.S. Court of Appeals for the Third Circuit posted no precedential or non-precedential opinions to its Web site today. With apologies to anyone who thought that the Pennsylvania state appellate courts issued one or more interesting decisions today, the Pennsylvania state appellate courts issued no interesting decisions today. Over in the Seventh Circuit, Judge Posner issued an opinion in a rather mundane construction contract case that was argued over six months ago. That opinion, before concluding, does a nice job of explaining when a contract between party A and party B would permit non-party C to sue as a third-party beneficiary. The opinion also clarifies the distinction between an express contract, an implied contract, and an action for restitution, the last of which he notes is sometimes "confusingly called in this context 'quasi-contract' or 'contract implied in law.'" The ability of Seventh Circuit Judges Posner, Easterbrook and Evans to explain clearly even the most difficult legal principles is what causes that jurisdiction to be high on my list as a source for legal authority regardless of where an appeal on which I am working is pending.

Ironically, the most newsworthy appellate decision that came to my attention today was a ruling issued yesterday in the media capital of the world. The U.S. Court of Appeals for the Second Circuit yesterday issued a decision that affirmed the ruling of the U.S. District Court for the Eastern District of New York that New York state's kosher fraud statutes violate the First Amendment's establishment clause because the statutes excessively entangle the state with religion and impermissibly advance orthodox Judaism. You can access the Second Circuit's decision here. I was thinking about making this decision my lead item tonight and perhaps including a humorous reference to the Hebrew National slogan which states that the company answers to a higher authority than the government, but the Second Circuit beat me to it on the very first page of its opinion. Instead, I'm simply left to express my amazement that this decision issued yesterday in New York City but didn't receive any significant press coverage until today. UCLA Law Professor Eugene Volokh today added an interesting posting about the decision to his law blog, and you can access that posting by clicking here.

The U.S. Senate's Judiciary Committee is scheduled tomorrow morning to vote on President Bush's nomination of Chief District Judge D. Brooks Smith of the U.S. District Court for the Western District of Pennsylvania to join the U.S. Court of Appeals for the Third Circuit. Given the attention that nomination has been receiving, it is possible that C-SPAN may provide coverage of the session. You can access C-SPAN's video and audio feeds over the Internet through its Web site, I'll try to provide updates tomorrow as developments merit. The Third Circuit over the past several years has admirably managed to cope with its heavy workload despite two active judge vacancies, but now that three active judge vacancies exist, the struggle to keep current and yet give each case the thorough attention that justice requires becomes all the more difficult. I have no doubt that Chief Judge Smith would serve with distinction on the Third Circuit, and it would be a shame for all of the active and senior judges who are now working so hard to keep current with their caseloads if the nomination were defeated simply because of perceived political disagreements between the nominee and the Democrats who make up a majority of the senators on the committee. The Judiciary Committee's Web site contains an interesting score-card on the status of pending nominees to the nation's federal appellate courts, and you can access that listing here. Later in the day tomorrow, the Judiciary Committee will hold initial hearings for various other federal judicial nominees, including Eighth Circuit nominee Lavenski R. Smith and Eastern District of Pennsylvania District Judge nominee Timothy J. Savage.

In case you were wondering when more opinions will likely issue from the Supreme Court of the United States, that Court retakes the bench next on Tuesday, May 28, 2002 (Monday, May 27, 2002 is the federal holiday Memorial Day), and more opinions are expected then.
Posted at 20:49 by Howard Bashman

UM, AREN'T YOU BASED IN THE SECOND CIRCUIT?: Today's lead editorial in The New York Times calls on the U.S. Senate's Judiciary Committee to reject President Bush's nomination of D. Brooks Smith to fill a Third Circuit vacancy that has existed for nearly three years. No mention is made of the fact that the Third Circuit today has only eleven of its authorized fourteen active judges. No mention is made of the fact that no nominations have yet been made to fill the other two Third Circuit vacancies (one of which just arose). No mention is made of the fact that the odds are quite small that President Bush will nominate for these federal appellate court vacancies candidates who share The Times's political agenda.
Posted at 16:06 by Howard Bashman

INFORMATION CHER - ING: Having granted review in the blockbuster case of Eldred v. Ashcroft, the Supreme Court of the United States next Term will decide the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998.

A very helpful Web site ( provides an excellent set of resources about the case. Included there is a page that provides access to many of the briefs that are being filed in the case. It even contains a link to the amicus brief filed two days ago in the Eldred case by good friend, and highly successful U.S. Supreme Court advocate, Roy T. Englert, Jr.
Posted at 08:09 by Howard Bashman

Tuesday, May 21, 2002
FINGERPRINTS vs. NO FINGERPRINTS: Fingerprints. Early this year, Senior District Judge Louis H. Pollak of the U.S. District Court for the Eastern District of Pennsylvania caused quite a stir when he issued an opinion in a criminal case holding that "no expert witness for any party will be permitted to testify that, in the opinion of the witness, a particular latent print is--or is not--the print of a particular person." You can access Judge Pollak's original opinion here. The federal government was stunned by this ruling and sought reconsideration. Two months later, in March 2002, after agreeing to reconsider his ruling and after holding a live evidentiary hearing to consider the testimony of fingerprint comparison experts, Judge Pollak vacated his earlier ruling and entered an order that allowed "the presentation of expert fingerprint testimony by the government, and the presentation of countering expert fingerprint testimony by any of the defendants." You can access Judge Pollak's opinion on reconsideration here.

How did this become newsworthy once again today, some two months later? The New Yorker magazine, in its issue of May 27, 2002, has an article that takes a close look both at the reliability of fingerprint evidence and at Judge Pollak's two rulings. The article's author, Michael Specter, even includes an interview that he conducted with Judge Pollak about how so many federal judges have backgrounds that make them poor candidates to screen scientific evidence for adequate reliability. You can access The New Yorker's article, entitled "Do Fingerprints Lie?," at this link.

No fingerprints. That's what non-precedential (also known as "unpublished") appellate opinions leave behind. As you already know if you're a regular reader of my monthly column on appellate developments published in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, I'm not a fan of non-precedential appellate opinions. (See here, here, and here to learn more.) In my view, the U.S. Court of Appeals for the District of Columbia Circuit, in its 2002 revisions to its local rules (see, in particular, page 102 of this PDF file), arrived at the right answer. All decisions issued there on or after January 1, 2002, whether published or unpublished, will be binding precedent on the court, but the court will continue to try to use unpublished opinions only in cases that, in the views of the participating judges, lack precedential value. So, in the D.C. Circuit today, there should be no reason to cite unpublished opinions, but if the court is wrong in its prediction of precedential value, the court will be bound even by an unpublished ruling.

As an appellate lawyer who represents actual appellate clients, I do not allow myself to confuse "how it is" with "how it should be." Thus, when it is my client that wins an appeal by means of an unpublished opinion, I could not be more happy for the client, because the designation of that victory as "unpublished" causes the victory to have virtually no chance of being overturned on rehearing or being reviewed by a higher court. Why would an appellate court rehear en banc a ruling that the original three-judge appellate panel has designated as non-precedential and entirely uncontroversial? My thoughts exactly. Yet, today through Friday, I will be (among other things) preparing an answer in opposition to my adversary's petition for reargument, pending in the Superior Court of Pennsylvania, that seeks to challenge an unpublished, non-precedential, unanimous decision of that court in favor of my client. So it sometimes goes in the glamorous world of appellate litigation.

Finally tonight, thanks to fellow law blogger Eric C. Hallstrom for stating in his weblog that "How Appealing" is a place to turn for a "quality, informative breakdown" of newly issued U.S. Supreme Court rulings. As Yoda might say, "try I do."
Posted at 20:44 by Howard Bashman

FRIEND OF THE COURT: The Third Circuit's Web site this afternoon has posted a non-precedential, single-judge decision written by Circuit Judge Samuel A. Alito, Jr. that resolves a contested motion for leave to file a brief amicus curiae. You can access the decision here. To summarize, Judge Alito believes that the federal appellate courts should take a more permissive view in favor of allowing amicus briefs than certain other federal appellate courts--most notably the Seventh Circuit--have taken. In these two opinions written by Seventh Circuit Judge Richard A. Posner, that court has taken a dim view of the usefulness of amicus briefs and has, at least in these cases, refused to permit them.

As long-time readers of this blog know well, I am a huge fan of Judge Posner. But, on the amicus brief issue, I think that Judge Alito has reached the correct result. Better to err on the side of allowing amicus briefs in those few federal appellate court cases in which such briefs are sought to be filed than to spend the time reviewing a proposed amicus brief with a jaundiced eye favoring rejection. If the brief turns out to be useless--and take it from me, if only appellate courts could reject at the filing stage parties' briefs when they are useless(!)--then the court is free to ignore the brief. That, after all, is what happens when a party's brief proves useless.
Posted at 16:32 by Howard Bashman

Monday, May 20, 2002
YOUR LIBRARY BOOK SWIMS WITH THE FISHES ON SUNDAY: Tonight, How Appealing looks at this morning's crop of three new U.S. Supreme Court opinions, a case from the Second Circuit in which the High Court granted review this morning, and opinion-writing for new judges (a/k/a "the Dog").

Opinions in two criminal cases and in the Court's other Verizon case issued today. Thankfully, today's Verizon decision wasn't 104 pages long and didn't directly address the substance of telephone regulation, decreasing the chances that this post will revisit the meaning of Bollywood (but see here). Because today's Verizon decision will be of interest only to those attorneys who enjoyed taking "Federal Courts" in law school (don't fret, that group includes me too), I'll save that summary for last. Fans of opinion-writing for new judges (a/k/a "the Dog") should persevere through that segment, to reach tonight's grand finale.

Criminal defense attorneys hoping to wring as much benefit as conceivably possible out of the Court's unexpected ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), were dealt a severe blow by the Court today. In a unanimous decision, the Court ruled in United States v. Cotton, No. 01-687 (U.S. May 20, 2002), that defendants who did not object to Apprendi-type errors before Apprendi issued (and few did) had to make the extraordinarily difficult showing of plain error to obtain reversal. Thus, even though the indictment in defendant Cotton's case did not charge that he possessed more than 50 grams of crack cocaine, and even though the jury made no such finding, the trial judge was permitted to sentence the defendant to serve up to life in prison based on the trial judge's own finding of that drug quantity because the undisputed evidence showed that the defendant was involved with way, way more than 50 grams of crack. Because "the error did not affect the fairness, integrity, or public reputation of judicial proceedings," the defendant's failure to raise any Apprendi-type objection until his case was pending on appeal proved fatal, even though the Supreme Court didn't announce its ruling in Apprendi until this defendant's case was pending on appeal. In so holding, the Supreme Court reversed the Fourth Circuit's ruling, below. What was bad news for the Fourth Circuit, though, was excellent news for the Third Circuit. The High Court's ruling in Cotton reached the exact same result that the Third Circuit reached en banc, by the slimmest of margins (7 to 6), in United States v. Vazquez, No. 99-3845 (3d Cir. Oct. 9, 2001). In my 2001 Third Circuit en banc round-up column, I had predicted that the government likely would win Vazquez by a decisive margin. Today's unanimous U.S. Supreme Court ruling on this issue demonstrates that maybe my projected outcome wasn't too far off the mark after all.

The Court today issued another opinion that also involved the criminal law, but this case was not quite as unanimous. By a 5-4 vote (with Justice O'Connor siding with the four Justices who are viewed as more liberal), the Court held in Alabama v. Shelton, No. 00-1214 (U.S. May 20, 2002), that a defendant who is charged with a criminal offense that may result in a suspended sentence must receive the assistance of court-appointed counsel at trial if the defendant cannot afford to hire a lawyer. According to the High Court, Pennsylvania is one of a minority of states that does not already provide state-sponsored defense attorneys in these sort of misdemeanor cases. Justice Ginsburg wrote the majority opinion, and her former D.C. Circuit colleague, Justice Scalia, wrote the dissent. Justice Ginsburg's opinion for the Court notes in footnote 10 on page 14 of the official slip opinion that in Pennsylvania, only a few summary offenses expose defendants to suspended sentences of 90 days' imprisonment without the assistance of court-appointed counsel. And what are those offenses, you wonder? Failing to return a library book within 30 days, and fishing on a Sunday, of course. Justice Scalia's dissent observes, in response, that under Pennsylvania law when a library book is not returned within 30 days because it was accidentally dropped into a lake during a Sunday fishing expedition, the defendant is afforded counsel because Pennsylvania law mandates a five-year sentence. (O.K, that last sentence is entirely made up.) But what is true is that Pennsylvania will now need to provide more court-appointed defense lawyers than it currently does, and somebody (i.e., the taxpayers of this Commonwealth) will be required to foot that bill.

For you fans of "Federal Courts" class in law school, the High Court's ruling today in Verizon Maryland Inc. v. Public Service Commission of Maryland, No. 00-1531 (U.S. May 20, 2002), addresses federal question jurisdiction under 28 U.S.C. sec. 1331 and the Ex parte Young "exception" to the Eleventh Amendment. Not quite as dry as last Monday's Verizon opinion involving telephone regulation, but close. At this rate, in about ten more years the Court is bound to have a quite interesting Verizon decision. Please wake me when it arrives.

The Court granted cert. today in the aptly named Connecticut Department of Public Safety v. John Doe, No. 01-1231 (U.S.). Under Connecticut's version of Megan's Law, that state hosts on its Web site a registry of convicted sex offenders containing those individuals' names, addresses, photographs and physical descriptions. Not surprisingly, some of these persons didn't like that extra notoriety, so they brought suit in federal district court in Connecticut. The trial court enjoined the public release of that information, and the Second Circuit affirmed. In essence, the Second Circuit held that "the plaintiff and the members of the due process class are entitled to the opportunity to have a hearing consistent with due process principles to determine whether or not they are particularly likely to be currently dangerous before being labeled as such by their inclusion in a publicly disseminated registry." I'm going to go out on a limb and predict that the U.S. Supreme Court will reverse the Second Circuit's ruling, either by a 5-4 or 6-3 margin. The Solicitor General of the United States filed an amicus brief in support of Connecticut's petition for writ of certiorari, and you can access that amicus brief here.

Speaking of cases heading to the U.S. Supreme Court, legal correspondent and all-around excellent writer Dahlia Lithwick had this to say about the Sixth Circuit's ruling in the University of Michigan Law School race-based admissions preferences case.

Finally, did you know that many new judges attend "judge school" where, as part of the curriculum, there are courses that teach how to produce well-written judicial opinions? Because so many lawyers don't write very well, and because judges are drawn from the population of lawyers, it's no surprise that not every judge is an excellent writer. One of the stylistic idiosyncrasies that lawyers seem to adore is defining parties' names in parentheses with quotation marks, even though this tends to get in the way of comprehension and thus prevents good writing. You could be reading a brief in a lawsuit involving only one plaintiff, and only the plaintiff is named Richardson, yet the lawyer's brief would read: 'Plaintiff Timothy Richardson (hereafter "Richardson" or "the Plaintiff") was driving down the Interstate 95 (hereinafter "the Road" or "I-95") . . . .' You get the idea, I'm sure. Well, thanks to this opinion that issued today from Pennsylvania's Commonwealth Court, you have the pleasure of meeting "the Dog." Perhaps if everyone had previously shown the canine this high level of respect, he would have attacked and bitten fewer people?
Posted at 20:50 by Howard Bashman

SLOGANEERING: With Pennsylvania's primary election just one day away, thoughts here have turned to sloganeering. I've noticed that some law blogs have slogans or catchy quotes, but mine doesn't. Some possibilities: "Scrupulously observing the distinction between its and it's since 1980" (or similar slogans for their, there and they're (yes, I've corrected that there/their typo from a few days back) or affect and effect). Or, because this is a law related blog, perhaps something in Latin, such as the aspirational "omnia vincit amor," the functional "manus manum lavat," or the legalistic "cessante ratione legis, cessat et ipsa lex." Or, I could try to be clever, adopting a slogan such as "if you believe in telekinesis, raise my hand." Perhaps now you can appreciate why, on further reflection, I'm sticking with no slogan.

How about a photo then? The instructions that would allow me to upload a photo of myself and link to it are quite complex, so that is all but out of the question. The Philadelphia Bar Association's monthly publication The Bar Reporter is everyone's favorite source for attorney photos in Philadelphia. The April 2002 issue of that publication ran a very oddly cropped photo of me taken at the Philadelphia Bar Association's Appellate Courts Committee meeting several months ago, and you can see it toward the bottom of page six of this PDF file.
Posted at 08:15 by Howard Bashman

Sunday, May 19, 2002
POINT, COUNTERPOINT, and what's the point: Monday's edition of The Legal Intelligencer contains three essays on the recent federal court challenge to Pennsylvania's Congressional redistricting effort. You can access them here. The essay by election law attorney Gregory M. Harvey of Montgomery, McCracken, Walker & Rhoads, LLP does a very nice job of explaining how the three-judge federal district court panel happened to hold the redistricting illegal and yet, soon thereafter, agree to stay its ruling to allow this Tuesday's primary election to go forward in Pennsylvania. And I'm not just saying this because Greg Harvey was responsible for my first appearance on the Pennsylvania Cable Network. (Or maybe you only noticed the two gubernatorial candidates on the panel?)

The most entertaining of the three essays is written by Alfred W. Putnam, Jr. of the Drinker, Biddle & Reath law firm. Putnam, who The Legal has reported may be in line to fill a Third Circuit vacancy, demonstrates a sense of humor and style of writing that would make him a welcome addition to most any court.

Speaking of the judicial confirmation process, reporter Stuart Taylor Jr. writing last week in The National Journal had a very interesting article on the subject. That article is accessible at the prior link, which takes you to the portion of The Atlantic Monthly's Web site that contains various National Journal articles. The Atlantic is worth mentioning for two reasons. Its June 2002 issue contains an essay by Seventh Circuit Judge Richard A. Posner about why increases in university tuition continue to far outstrip inflation. Among other reasons, the high cost of retaining public intellectuals is to blame. (Come to think of it, doesn't Judge Posner have a new book out about public intellectuals?) Unfortunately for nonsubscribers and those too stingy to purchase a copy, The Atlantic's Web site does not make Judge Posner's essay available online. But the publication does make available online its article from last November that won a 2002 National Magazine Award, written by reporter and pilot William Langewiesche, on the cause of the crash of EgyptAir flight 990. While the article is quite long, it is very well-written and very interesting.

More U.S. Supreme Court opinions and orders are due to issue tomorrow (Monday), so be sure to check back to see if anything newsworthy has been handed down. Also tomorrow, the summer associates arrive.
Posted at 22:30 by Howard Bashman

Friday, May 17, 2002
THINGS MAY NOW BE LOOKING BETTER for Third Circuit nominee D. Brooks Smith according to today's article in The National Review online, which states that toward the wire yesterday the Republicans were angling to go ahead with the Judiciary Committee vote and the Democrats engineered the one week delay. The article makes clear, though, that the outcome remains extraordinarily difficult to predict. There's no end to The National Review's coverage to the judicial confirmation slowdown; today the site also runs a brand new guest comment on the topic, and you can access it here. An earlier National Review piece from the same guest author, supporting President Bush's nomination of John G. Roberts, Jr. to fill a D.C. Circuit vacancy, appears here.

What's new with me? It was a very busy week at work, with a major Third Circuit brief due and filed on Monday and a similarly important Pa. Superior Court brief for appellant due and filed today. Today's brief turned out just great, but you won't find it online. The case, before I became involved, was the subject of an article in Pennsylvania Law Weekly, so it is possible that you might see some additional news coverage once the Superior Court issues a decision. That could be many months from now. Happily, the appellate work keeps rolling in. I now have an application for reargument to oppose in the Pa. Superior Court, a Fifth Circuit appeal to work on, a brand new Pa. Superior Court appeal that was just filed, a Third Circuit oral argument that likely will occur on June 10th, and a very newsworthy criminal appeal that surely will be back in the news next month.

THANKS to everyone who has made visit after visit to this site in the week that has just ended. The site has had hits from the east coast, the west coast, the north, the south, and pretty much everywhere in between this week, not to mention Mexico and Singapore. While there are perhaps two or three jobs that, if offered, might entice me to leave the private practice of appellate litigation, becoming a full-time law blogger isn't one of them. But, as long as you keep visiting, I will keep writing in my spare moments as developments merit. And, if you see a newly released court decision that deserves mention, drop me a line--my contact information is listed on the upper left hand side of this page. Coming on Monday, more opinions from the U.S. Supreme Court. I'm not giving myself favorable odds for reading all the way through this past Monday's 104-page telephone regulation decision before then.

For now, I'll leave you with my favorite Justice Kennedy quote from this past Monday's decision in Ashcroft v. ACLU: "When a key issue has 'no evidence' on one side and 'no reason to believe' the other, it is a good indication that we should vacate for further consideration."

Posted at 22:51 by Howard Bashman

"BTW, WHEN CAN I ROLLOVER MY 401(k)?": Speaking of the Left Coast, yesterday attorneys for Kourosh Kenneth Hamidi filed their opening brief in the Supreme Court of California in Intel Corp. v. Hamidi, No. S103781 (Cal.). Hamidi, a former Intel employee, sent an unsolicited email after leaving Intel's employ to somewhere between 8,000 and 35,000 current Intel employees highlighting what he believed to be the company's unfair and discriminatory employment practices. Intel was not amused, and it brought a trespass suit that resulted in the entry of an injunction against Hamidi prohibiting him from sending further unsolicited emails to Intel employees at their place of work.

In his opening brief on appeal, Hamidi argues that the intermediate state appellate court that rejected his challenge to the injunction incorrectly treated the case as one involving trespass to real property (such as real estate) rather than as involving trespass to chattel (such as goods or animals that someone owns). Hamidi argues that he at worst trespassed onto Intel's computer system, but that Intel can show no harm to its computer system as a result of having received that one email.

Although this case is pending in California's highest court, it does have a Philadelphia connection. The now eponymous Dechert law firm has three lawyers from its Philadelphia office on the brief, and two of those are recent law clerks to Third Circuit judges. As a former Third Circuit law clerk myself, I admire that strategy.

I've yet to read through the entire brief, but what I've seen so far seems nicely done. One question: would there be a Thirteenth Amendment problem if Intel were to argue that the chattel whom Hamidi trespassed upon were its employees, not its computers? One can only imagine that those employees were more distracted from their usual tasks by the email than were the computers on which they work. Appellant's opening brief also contains a cite to a Yale Law Journal piece written by fellow blogger, and UCLA Law Professor, Eugene Volokh.

Posted at 19:06 by Howard Bashman

TROLLING ACROSS COUNTRY FOR NEWS: It's fitting that my highly recommended fellow law blogger Denise Howell, based in California, makes mention today of the Third Circuit's troll copyright case, because I, based in Philadelphia, Pennsylvania, have been giving the Ninth Circuit a bit of coverage over the past day or so.

To quote Denise's excellent posting (but not her links, click here for those): "'Troll Reversal' [via], discussing a Third Circuit decision to lift an injunction on the sale of plastic, smiling, pot bellied, neon haired trolls. The appellate court found the trolls could be derivative works entitled to a mandatory license, and faulted the lower court for generalizing about the trolls covered by the injunction, which never were subjected to an 'exacting comparison' with the Danish copyrighted trolls (book your seats early for that day in court)."

Ironically, her parenthetical closing remark may be even more true than she perhaps realized. According to one of the Third Circuit judges on the panel that decided this appeal, during the oral argument the Third Circuit's courtroom was resplendent with trolls. It must have made for quite a show, and I, for one, am sorry I missed it.

Posted at 17:02 by Howard Bashman

YOU CAN ACCESS Chief Justice Rehnquist's in-chambers opinion issued today in Bartlett v. Stephenson, No. 01A848, at this link. In a nutshell, the Chief Justice denies North Carolina's request for a stay of the Supreme Court of North Carolina's decision invalidating that state's 2001 state legislative redistricting plan. So, it's back to the drawing board in North Carolina.

Several judicial appointments, including Richard R. Clifton, a nominee from Hawaii to serve on the U.S. Court of Appeals for the Ninth Circuit, received favorable votes from the Senate Judiciary Committee yesterday. Here are two reports. These reports confirm that the committee's vote on the nomination Chief District Judge D. Brooks Smith to fill a Third Circuit vacancy has been postponed until next week.

If you wish to see a database that lists pending and recently confirmed federal judicial nominees, victorious Sixth Circuit litigant the University of Michigan Law School offers this site. The database is an excellent tool for law students who wish to expand their judicial clerkship searches to include individuals who have been nominated to serve as federal judges. Presumably, the moratorium on hiring federal appellate law clerks during the fall of 2002 does not apply to newly confirmed judges.

Posted at 14:07 by Howard Bashman

Thursday, May 16, 2002
IT'S POINTLESS for the U.S. Senate to base its judicial confirmation decisions on the perceived political or personal philosophies of the individuals nominated to serve on the nation's federal appellate courts. Take, as the most recent example, today's 6-5 en banc ruling of the U.S. Court of Appeals for the Ninth Circuit in Planned Parenthood v. American Coalition of Life Activists, No. 99-3520 (9th Cir. May 16, 2002) (en banc). One need only read through the majority and dissenting opinions there to see what a difficult and unpalatable case that must have been to decide for all eleven judges on the en banc panel. Physicians who performed abortion services and organizations that supported and/or provided access to those services sued anti-abortion activists who had distributed flyers and posted information on the Internet that could be construed as calling for the killing of those physicians. The question presented was whether that speech was, or was not, protected under the First Amendment.

My purpose here is not to debate the merits of the Ninth Circuit's decision. Here is a link to the decision, and you can and should read the various opinions and make up your own mind about that. Instead, I will explain how the identities of at least two of the five dissenting judges proves that perceived judicial philosophy is no guarantee that a judge will rule a certain way in a given difficult case. The dissenters in today's ruling believed that the Ninth Circuit should have held that the First Amendment protected the anti-abortion activists from monetary liability for having engaged in speech that could be viewed as calling for the death of the abortion service provider physicians who were the plaintiffs in this case. Now, allow me to greatly oversimplify matters for just one sentence: If judging were merely a political contest whereby judges decide which side of a case they personally prefer and vote in favor of that side, one would have expected that conservative judges who perhaps might be personally opposed to abortion rights would vote in favor of the defendants' First Amendment rights, and that the liberal judges who favor abortion rights would have voted in favor of the plaintiff physicians and organizations.

But, of course, appellate judging is not about a judge voting his or her personal preference in a result-oriented fashion. Rather, appellate judging involves setting aside one's personal beliefs and prejudices, discovering what the law is, and applying the law in a principled way to the facts. And this may explain why Ninth Circuit Judge Stephen Reinhardt, a very liberal and extraordinarily intelligent judge, dissented from the en banc ruling. In this case, he very well may have put his personal and political preferences aside in deciding that the anti-abortion activists' First Amendment rights took precedence.

Similarly, Ninth Circuit Clinton appointee Marsha S. Berzon, who had to wait two years before Senate Republicans would allow her nomination to come up for a vote, also dissented. After law school, she clerked for a Ninth Circuit judge and then took a U.S. Supreme Court clerkship with Justice William J. Brennan, Jr., himself a fervent supporter of both the First Amendment and abortion rights. Ironically, in performing a search on Google this evening for Judge Berzon, I was directed to the Web site of New Hampshire Senator Bob Smith. Now, let me be the first to admit that I know absolutely nothing about Senator Smith, but his Web site even today continues to provide access to a press release that Senator Smith's office issued on March 9, 2000 entitled "Smith Leads Effort to Block Activist Judicial Nominees." One of the supposedly activist judicial nominees whom Senator Smith denounces in that press release is Judge Berzon. With respect to her, the press release states, "Berzon, according to Smith, has been the general counsel of the AFL-CIO since 1987 and has also espoused pro-abortion causes. Ms. Berzon also has served on the board of the Brennan Center for Justice, a liberal organization noted for its defense of activist judges." But, even if Senator Smith is correct that Judge Berzon before she joined the Ninth Circuit "espoused pro-abortion causes," today's Ninth Circuit ruling shows that she is willing to put aside whatever personal preferences she has and follow her understanding of the law even if that means concluding that the First Amendment protects the speech of anti-abortion activists who could be understood as calling for the death of abortion providers.

Judge Alex Kozinski, who was also among the five dissenters, described as "inspired" Judge Berzon's dissent. And here's why. She began her dissent by writing: "This case is proof positive that hard cases make bad law, and that when the case is very hard -- meaning that competing legal and moral imperatives pull with impressive strength in opposite directions -- there is the distinct danger of making very bad law." And she closed her dissent by explaining: "If we are not willing to provide stringent First Amendment protection and a fair trial to those with whom we as a society disagree as well as those with whom we agree -- as the Supreme Court did when it struck down the conviction of members of the Ku Klux Klan for their racist, violence-condoning speech in Brandenburg -- the First Amendment will become a dead letter. Moreover, the next protest group -- which may be a new civil rights movement or another group eventually vindicated by acceptance of their goals by society at large -- will (unless we cease fulfilling our obligation as judges to be evenhanded) be censored according to the rules applied to the last."

Accordingly, Senators should not obsess over whether federal appellate court nominees hold the same political or personal views about issues likely to come before the courts, because judges are required to put -- and each day do put -- those political and personal views aside to decide cases according to the law. What the Senate should strive to ensure is that nominees possess a great deal of intelligence, reason, discretion and judgment. And that should be more than enough to qualify a nominee for confirmation. As Assistant U.S. Attorney General Viet D. Dinh recently explained in his interview on the C-SPAN program "America & the Courts," the Bush Administration understands that it would be useless to ask potential judicial nominees about their stance on issues likely to come before the courts because, once confirmed, the judge is free to decide the case however he or she thinks is correct under the law. Because a judicial nominee's personal views on issues, and his or her political outlook, should play no role in how he or she decides cases, questions about those subject matters should be kept off limits during the judicial confirmation process.

Posted at 20:59 by Howard Bashman

BREAKING NEWS: In a 6-5 vote, the en banc U.S. Court of Appeals for the Ninth Circuit today has ruled that anti-abortion protesters may be held liable in damages for printed posters and Web postings that condemned doctors who provide abortion services. In so ruling, the en banc court reverses the ruling of the Ninth Circuit panel that had previously considered in the case. The full en banc decision, including dissents, is 118-pages in length.

The line-up of judges in the Ninth Circuit's en banc ruling may strike some as unusual, but this is an unusual case, pitting two judicially-recognized fundamental rights against one another: the right to freedom of speech, and the right to abortion services.

Posted at 17:20 by Howard Bashman

NATIONAL REVIEW ONLINE this afternoon posted this very interesting guest comment that addresses the ongoing battle in the U.S. Senate to confirm Chief District Judge D. Brooks Smith of the U.S. District Court for the Western District of Pennsylvania to fill a longstanding vacancy on the U.S. Court of Appeals for the Third Circuit. The comment's author is Roger Pilon, vice president for legal affairs at the Cato Institute. If you find this topic to be of interest, you may also enjoy reading these two recent articles on the same general subject matter written by Byron York, the National Review's White House correspondent.
Posted at 15:50 by Howard Bashman

YESTERDAY, the Supreme Court of Ohio struck down, on First Amendment grounds, a state statute that prohibits same-sex importuning. You can access the decision here.
Posted at 14:22 by Howard Bashman

THANKS TO MY MEMBERSHIP in the Supreme Court Historical Society, today's mail included a very large postcard bearing on its front the formal portrait of the Justices currently serving on the Supreme Court of the United States. The card doesn't say whether the photo is this year's official portrait, nor does the card explain why it's being sent. But it is a very nice picture, and I have taped it to the door of my office.

My other mail from Washington today actually came from the U.S. Supreme Court itself. It was the Court's formal notification that it had denied the petition for writ of certiorari that I filed in my Criminal Justice Act case. This news, thanks to the Internet, came as no surprise. The Court posts its orders to its official Web site on the date of issuance.

So, while I may not be conversing with the Justices in person anytime in the near future, at least I now have the postcard portrait to enjoy.

Posted at 12:19 by Howard Bashman

VIET D. DINH, Assistant U.S. Attorney General, heads President Bush's judicial selection process. C-SPAN, on the most recent installment of its wonderful program "America & the Courts," ran a very interesting interview with Mr. Dinh on the federal judicial nomination process. You can access a video feed of the interview here for the next several weeks. (Note: Real Player required.)
Posted at 08:11 by Howard Bashman

Wednesday, May 15, 2002
A FEW ODD OCCURRENCES top off this evening's posting. Can you believe that National Public Radio's Nina Totenberg is still catching flack for having had Justice Ruth Bader Ginsburg officiate at Ms. Totenberg's wedding in November 2000? This story from yesterday's Buffalo (NY) News relates the details. And, even more odd, in late March 2002 the U.S. Court of Appeals for the First Circuit addressed a gun club's attack on a Massachusetts statute that prohibits "shooting at targets that depict human figures, human effigies, human silhouettes or any human images thereof, except by public safety personnel performing in line with their official duties." In an ingenious challenge, the gun club plaintiffs alleged that the statute violated their First Amendment freedom of expression. The First Circuit's ruling in the case disagreed, but that ruling has already been subject to criticism by a visiting law professor at the University of Pennsylvania who has a column on FindLaw.

In other news,'s Tony Mauro has an interesting piece on the U.S. Supreme Court oral argument in the case from Minnesota that challenges speech restrictions on candidates for elected judicial office in that state. Click here for that article. My appellate developments column to be published in The Legal Intelligencer on the second Monday in June 2002 will address that case and its likely impact in Pennsylvania state judicial races.

Thanks to Ernie the Attorney for suggesting to his readership that they should check here for a discussion of the Sixth Circuit's ruling yesterday in the University of Michigan Law School racial preferences case. As Ernie's readers have discovered, I discussed at length the aspect of that decision which I found the most intriguing in my posts of this morning and last night.

Speaking of en banc cases, allow me to update my earlier report in my Legal Intelligencer column on the en banc case of Thomas v. Commissioner of Social Security, No. 00-3506 (3d Cir.), which was argued before the en banc U.S. Court of Appeals for the Third Circuit on February 13, 2002. A decision has not yet issued. The Third Circuit took this case en banc before the original three-judge panel assigned to the matter had issued any ruling, and the parties' briefs (which I had reviewed in researching my Third Circuit en banc round-up column) did not shed any light on why this case went en banc. I attended the oral argument on February 13th, and it soon became clear how the case came before the full court--the federal government was taking a rather idiotic position in seeking to deny social security disability income (SSDI) benefits to this claimant. To qualify for SSDI benefits, a claimant must satisfy all five parts of a well-established test. The fifth and final step requires the claimant to prove that he or she cannot perform any substantial gainful employment in the national economy. But, in order for a claimant to reach step five, he or she must first satisfy the four preceding steps. And step four requires the claimant to prove that he or she cannot perform his or her former job. Ms. Thomas's former job was serving as an elevator operator. Many of my readers probably remember what elevator operators did. For the younger generation, suffice it to say that today's fully automated elevators are a relatively new development, and before they came into being an elevator operator would ride along in the elevator, work the seemingly complex manual controls to move the elevator from floor to floor, and manually open and shut the elevator's doors. The evidence in Ms. Thomas's case established that she would win at step five of the SSDI inquiry because there were no jobs in the national economy that she could fill. Unfortunately, though, Ms. Thomas had a problem with step four of the benefits inquiry, because the evidence in her case established that she could still work as an elevator operator. But the Commissioner of Social Security had a problem with step four, too, which was that no jobs remain in today's economy for elevator operators. So, to summarize, Ms. Thomas couldn't work any actually existing jobs, but she could work her former job, which no longer existed anywhere. And, based on these facts, the federal government was arguing that Ms. Thomas didn't qualify for SSDI benefits. The government's position in this case strikes me as quite absurd, and that is the identical reception that it received from the en banc Third Circuit at oral argument. Government attorneys who will be arguing in the Third Circuit should anticipate that that court will not treat them any better than the average lawyer; indeed, a poorly prepared government lawyer, or a government lawyer arguing a completely absurd position, may get treated even more harshly by the Third Circuit at oral argument than a private lawyer in the same position. So be prepared, government lawyers, when setting foot into the Third Circuit for oral argument.

I'm not quite sure why I'm providing this advice, given that my next Third Circuit oral argument is scheduled for June 10, 2002 in an immigration case against a lawyer from the U.S. Department of Justice's Office of Immigration Litigation. Maybe I prefer a fair fight at the podium. Now, however, I must return to my Pennsylvania Superior Court brief for appellant due this Friday.

ONE SCHEDULING NOTE: I'm modifying my posting schedule slightly. Each day I will make one large post in the evening, and I no longer will be posting regularly each weekday morning. Of course, I reserve the right to post earlier in the day as developments merit. Usually those earlier-in-the-day posts will be rather short. Thanks for reading, and keep checking back for updates, which can and will pop up at most any time.

Posted at 23:13 by Howard Bashman

IN THE NEWS: Conservative publication The National Review within the hour has posted to its Web site a report from its White House correspondent which states that the nomination of Chief District Judge D. Brooks Smith of the U.S. District Court for the Western District of Pennsylvania to serve on the U.S. Court of Appeals for the Third Circuit may be in trouble.

According to the article, the Judiciary Committee of the U.S. Senate is currently scheduled to vote on Chief Judge Smith's nomination tomorrow, but Republicans may request a one-week postponement, which they can obtain as of right one time. The article observes that supporters of a nomination only request such a postponement when a favorable vote in support of the nominee is in doubt.

The National Review article also comments more generally on the Democrats' strategy toward President Bush's judicial nominations to the federal appellate courts.

Posted at 12:55 by Howard Bashman

UNUSUAL, yes; unprecedented, no: For those still in stunned disbelief about yesterday's harsh exchanges between various Sixth Circuit judges in the course of deciding Grutter v. Bollinger, an en banc ruling that by a 5-4 margin upheld against constitutional challenge the University of Michigan Law School's use of race-based admission preferences in selecting students, allow me to observe that Grutter wasn't the first time that a federal appellate court's process of determining en banc review has given rise to heated controversy.

Take, for example, the Ninth Circuit's handling of Thompson v. Calderon (9th Cir. 1997), a case so unusual that its clashing opinions over whether rehearing en banc was properly granted have remained in my memory for nearly five years. In a nutshell, the Ninth Circuit granted rehearing en banc in Thompson after the U.S. Supreme Court denied certiorari to review a Ninth Circuit panel's ruling that affirmed the dismissal of Mr. Thompson habeas corpus case that challenged California's imposition of the death penalty against him. Usually, of course, the decision whether to grant rehearing en banc occurs before, not after, U.S. Supreme Court review is sought and denied. Here, though, a majority of the Ninth Circuit apparently believed that the Court had failed internally, at the proper time, to give its judges a fair opportunity to decide whether to grant the prisoner's original rehearing en banc petition. This debate became rather acrimonious, and Judges Reinhardt and Kozinski vociferously disagreed with one another over the propriety of the Ninth Circuit's actions in the case.

To quote just briefly from Judge Reinhardt's concurring opinion:

"Perhaps to those who read his recent musings in The New Yorker magazine regarding his personal experiences in voting in death penalty cases, Judge Kozinski's rambling analysis will come as no surprise. Others surely will be astounded by some of the conclusions he reaches and some of the factual errors he makes.";

"Reading Judge Kozinski's strange dissent, one would think that justice is irrelevant in this nation and that all that matters in our system of law is whether a single piece of paper was misplaced in a judge's chambers, or whether some recondite internal General Order was complied with to the last detail. That is surely not the type of legal system in which most of us believe. That is surely not the type of nation that we represent ourselves to be when we offer ourselves as a model of fairness and decency, democracy and civilization, throughout the world."

And, to quote just briefly from Judge Kozinski's dissenting opinion:

"I regret having to delve into internal court communications, especially as I do not believe any of this matters at all. However, as the majority has opened the door by giving what I see as an inaccurate description of what happened, I feel constrained to set the record straight. I believe this is especially appropriate since the parties do not have access to these facts and thus have no way of challenging or defending the majority's assertions."

If you are interested in these sorts of matters, you certainly should read both of these Ninth Circuit opinions in full. And, by the way, the U.S. Supreme Court later granted certiorari to determine whether the Ninth Circuit behaved lawfully in granting rehearing en banc even after the Ninth Circuit's mandate had issued and even after the U.S. Supreme Court had denied review in the case. The Supreme Court ruled 5-4 that the Ninth Circuit's decision to recall its mandate rested on the most doubtful of grounds and constituted an abuse of discretion. So, perhaps Judge Boggs is correct in his Sixth Circuit dissenting opinion that some further "remediation" may be "possible."

Posted at 09:09 by Howard Bashman

Tuesday, May 14, 2002
ANTACIDS were the subject of today's most newsworthy Third Circuit opinion, which is quite a fitting coincidence given that in the days to come a large number of federal appellate judges will be reaching for their supplies of those products as the repercussions from today's ruling by the Sixth Circuit in Grutter v. Bollinger reverberate through the system. Sure, the ruling in Grutter is incredibly significant simply because the en banc Sixth Circuit ruled 5 to 4 that the University of Michigan Law School's use of race-based admission preferences in selecting students did not violate the U.S. Constitution. For that reason alone, the decision is very likely to be front page news in tomorrow's editions of The New York Times, The Washington Post, and The Los Angeles Times. In so ruling, the Sixth Circuit overturned a trial court decision that had declared the law school's race-based admission preferences unconstitutional. The Sixth Circuit's holding further deepens an existing split of authority between federal appellate courts, all but guaranteeing U.S. Supreme Court review, which could very well produce its own 5-4 outcome.

But what seems to have gotten the nine Sixth Circuit judges even more bent out of shape than the merits of the Grutter case is the procedure whereby that case came before the court en banc. Various Sixth Circuit judges clashed brutally over that procedure and laid bare for all to see why the next Sixth Circuit judges' retreat might require a platoon of U.S. Marshals simply to protect these judges from one another. Later in this post I will quote passages from the various opinions in order to vividly illustrate this point.

It will be very interesting to watch how this procedural dispute gets covered in the national media, because it involves rather complex and (as far as most of the public is concerned) unfamiliar rules and principles. But you've come to the right place if you want to understand what actually happened, what it all really means, and what ramifications are likely to follow. My lawyer friends don't call me the "appellate guru" for nothing, you see.

First, some background. The U.S. Court of Appeals for the Sixth Circuit has within its geographical jurisdiction the states of Kentucky, Michigan, Ohio, and Tennessee. Congress has authorized a total of sixteen active federal appellate judges to serve on the Sixth Circuit. Unfortunately, the Court today only has eight active judges. Nine judges took part in the Grutter decision because Senior Judge Siler had not yet taken senior status when the case was argued, and under applicable law he was therefore entitled to participate in the ruling.

The term "en banc" (which other appellate courts variously spell "in banc" and "in bank") means "by the full court." More specifically, when a case is heard en banc it is heard by all active, non-disqualified judges serving on the court. Typically in the federal court system, appeals are assigned for a hearing by a three-judge panel, and the composition of the panel is established and known (at least within the court) long before cases are randomly assigned by the Clerk's Office to the panel.

Under federal law, judges who have served a certain number of years in the federal court system and who are of a certain age may elect to take senior status--which reduces a judge's case load--and yet retain full salary. Federal judges have lifetime tenure and can serve as active judges until death, health considerations permitting, but many judges elect senior status when it becomes available to free up time for other things and/or to free up a vacancy for new active judges who can then be nominated and confirmed to the court. Senior judges are not allowed to participate in en banc rehearings unless they sat on the original panel that decided the case in their permanently assigned circuit, and senior judges aren't allowed to participate in original en banc hearings. An original en banc hearing occurs where the full federal appellate court votes to hear the case en banc before the case has been decided by a three-judge panel of the appellate court. Original en banc hearings are extraordinarily rare.

Sometimes, a case pending in a federal trial court will spawn several appeals that arise at various stages over several years. Grutter was such a case. A three-judge panel of the Sixth Circuit decided the first appeal in the Grutter case in 1999. That three judge panel consisted of Sixth Circuit Judges Martha Craig Daughtrey and Karen Nelson Moore and Senior U.S. District Judge William H. Stafford, Jr. of the U.S. District Court for the Northern District of Florida. (Judge Stafford, by the way, has connections to both the Third and Sixth Circuits. He was born in the Sixth Circuit, in Masury, Ohio, and he attended college and law school at Temple University in Philadelphia, Pa., here in the Third Circuit.)

The Sixth Circuit is one of the federal appellate courts that attempts to assign subsequent appeals in a case that has already been before the court to the same panel that heard and decided the earlier appeal(s). Some federal appellate courts follow this policy; others, including the Third Circuit, do not. In April 2001 when the current appeal arose in the Grutter case, Senior District Judge Stafford was unavailable to participate. So, the Sixth Circuit had to pick a third judge to take part in the case. Most federal appellate courts would probably randomly assign a third judge from the remaining non-recused active and senior judges on the court. But the Sixth Circuit, surprisingly, has an informal policy whereby its chief judge, in his discretion, can volunteer to serve as the third judge. Here, Carter appointee Chief Judge Boyce F. Martin, Jr. did just that. Thus, the three-judge panel to whom the current Grutter appeal was originally assigned consisted of Chief Judge Martin and Circuit Judges Daughtrey and Moore.

On May 14, 2001, counsel for the plaintiff, Barbara Grutter, who had won in the trial court, filed a petition in the Sixth Circuit asking for an initial en banc hearing. As of that date, Circuit Judges Alan E. Norris and Richard F. Suhrheinrich, both Republican appointees, remained in active service on that court. The most shocking procedural aspect of the Sixth Circuit's process, in my view, was its policy at that time for the original panel assigned to the case to decide whether the petition for initial en banc hearing ever was presented to the Sixth Circuit's other active judges. In the Sixth Circuit, a motion for initial hearing en banc sits, undistributed to the judges, in the Sixth Circuit's Clerk's Office until all of the parties' briefs are filed. Here, on July 1, 2001, while Ms. Grutter's motion for original en banc hearing was sitting on the Clerk's Office's shelf, Judge Norris took senior status. And, on August 15, 2001, while the motion was still sitting on that shelf, Judge Suhrheinrich took senior status. Finally, on August 23, 2001, after the parties' briefs had been on file in the Clerk's Office of the Sixth Circuit for at least nearly a month, the Clerk's Office forwarded Ms. Grutter's petition for initial hearing en banc to the three-judge panel consisting of Chief Judge Martin and Circuit Judges Daughtrey and Moore. That panel did not think that initial hearing en banc was warranted, so it scheduled oral argument before itself and failed to refer the motion to the whole court.

Next, and perhaps somewhat out of the blue, Senior Sixth Circuit Judge Ralph B. Guy, Jr. sent a letter to Chief Judge Martin complaining about the court's failure to randomly select a third judge to fill the original panel's vacancy that Chief Judge Martin volunteered to fill. That letter caused the three-judge panel, which was then scheduled to hear oral argument of Ms. Grutter's appeal eight days later, to circulate her petition for initial hearing en banc to the entire court. And, the entire court quickly voted in favor of initial hearing en banc.

All of this information became public in the Sixth Circuit's opinion in Grutter because Sixth Circuit Judge Danny J. Boggs was so frustrated with the Sixth Circuit's procedures (and perhaps because those procedures deprived his dissenting view on the merits of the case of the two votes necessary to turn that dissent into the court's opinion) that he believed the public had a right to know. In Judge Boggs's view, the petition for initial hearing en banc should either have been circulated as soon as it was filed or at least before both Judges Norris and Suhrheinrich had taken senior status. Moreover, although Judge Boggs never says this, if the Sixth Circuit had deadlocked 5-5, it would have resulted in the affirmance of the trial court's decision, which had declared the law school's race-based admissions preference unconstitutional, by an evenly divided court.

Judge Boggs is correct that it is quite unusual for the chief judge to have the ability to personally occupy any panel vacancy that he wishes to fill, and it is quite unusual to give the assigned panel veto power over circulating a petition for initial hearing en banc. As best I can recall from my clerkship for a judge on the Third Circuit, in the Third Circuit petitions for initial hearing en banc are circulated to all active judges when filed. If that had happened in Grutter, Judge Boggs may have been on the winning side of this case right now. On the other hand, if the panel had never referred the initial en banc petition to the full court but, instead, simply kept the case for itself, the case likely would not have reached the rehearing en banc stage until now. And, now, Judge Siler has also taken senior status, and he sided with the dissent in today's 5-4 ruling. What the Sixth Circuit should do going forward is institute the following two practices: make random assignments to fill panel vacancies; and circulate petitions for original en banc hearings to the full court as soon as they are filed.

NOW, HERE ARE THE QUOTES from the various opinions in Grutter. From Judge Moore's concurring opinion:

"In publishing their 'Procedural Appendix,' I believe that Judge Boggs and those joining his opinion have done a grave harm not only to themselves, but to this court and even to the Nation as a whole.";

"The baseless argument of the 'Procedural Appendix' is that the decisions of this court are not grounded in principle and reasoned argument, but in power, and that the judges of this court manipulate and ignore the rules in order to advance political agendas. I am saddened that Judge Boggs and those joining his opinion believe these things. But, more importantly, I am concerned that my dissenting colleagues' actions will severely undermine public confidence in this court.";

"The damage done by such exposes is, at least in part, the responsibility of those who report them, despite the efforts of Judge Boggs and those joining his opinion to disclaim responsibility for their own conduct. It is understandable, however, that they do so, as their conduct in the present case is nothing short of shameful.";

"But unhappiness over the outcome of the case cannot justify the dissenters' 'Procedural Appendix.' Judge Boggs's opinion marks a new low point in the history of the Sixth Circuit. It will irreparably damage the already strained working relationships among the judges of this court, and, as discussed in Part I supra, serve to undermine public confidence in our ability to perform our important role in American democracy. And for what reason? What purpose does the 'Procedural Appendix' serve? Its author does not defend its inclusion, except to suggest that by placing his version of events in the record, some 'remediation' may be 'possible.' Whatever 'remediation' Judge Boggs may envision is properly the subject of a court meeting, but not the basis for an unprecedented 'Procedural Appendix.'"; and

"This response is truly a recourse of last resort, as several members of this court have endeavored to persuade Judge Boggs to withdraw the 'Procedural Appendix.' He has steadfastly refused to do so. The three members of the hearing panel have also personally assured Judge Boggs that we did not engage in the manipulation of which he has accused us, but he has refused to accept our assurances."

Here's what Judge Boggs said in his "Procedural Appendix":

"Judge Moore's concurrence makes several remarkable points. She first notes that the irregular constitution of the panel can be excused because 'Chief Judge Martin has frequently substituted himself in a variety of matters, of varying degrees of importance, throughout his tenure as chief judge, in order to avoid inconveniencing other circuit judges.' But, of course, the very point is that such a practice, to the extent it exists, was unknown to the other members of the court, who had every reason to believe that the panel had been regularly constituted.";

"Judge Moore also contends that the Chief Judge regularly fills 'vacancies in other cases,' that no one has previously objected to his practice, and that his practice has become 'a matter of common knowledge among the judges of this court.' I absolutely deny that this judge has had any 'knowledge' of, or that the Chief Judge has announced or admitted to, any such practice of inserting himself onto panels without a random draw.";

"Judge Moore suggests that my objections to the composition of the three-judge panel are 'minor' because the decisions regarding the composition did not 'actually change[] the outcome of the present case.' But as I have always made clear, it is difficult to know what body would have decided this case if the rules had been correctly implemented.";

"Contrary to Judge Moore's concurring opinion, I do not contend that the legal opinions of any member of this court do not represent that judge's principled judgment in this case. However, under these circumstances, it is impossible to say what the result would have been had this case been handled in accordance with our long-established rules. The case might have been heard before a different panel, or before a different en banc court."; and

"Judge Moore correctly states that our 'only source of democratic legitimacy is the perception that we engage in principled decision-making.' If actions are taken that may imperil that legitimacy, a member of this court who observes them is left with two alternatives, both unpalatable. One is to allow the actions to pass in silence, even after explanations have been requested, but have not been produced. Silence simply allows those actions to continue and to be repeated, with real consequences for both the court and the litigants who appear before it. The other alternative is to place the actions on the record, for such remediation as may be possible. I have not revealed the substance of any internal communications on this case between members of our court, with the exception of the letter of one senior judge who asked me to do so. . . . I will leave to the candid reader to consider the distinction between laying out very significant and obvious violations of rights of members of this court, and revealing, in contravention of long-honored custom, the internal votes of members of this court. Legitimacy protected only by our silence is fleeting. If any damage has been done to the court, it is the work of the actors, not the reporters."

AND THAT CONCLUDES OUR QUOTATIONS. The recriminations voiced in today's decision in Grutter may make it even more difficult (if that were possible) for President Bush to get his seven pending nominees confirmed to fill vacancies on the Sixth Circuit. But the troublesome issues raised by, and accusations leveled in, today's Sixth Circuit opinions will undoubtedly be the subject of discussions for some time to come among federal appellate judges. So, let's hope that the nation's federal appellate judges have stocked up on their antacids--at least today's Third Circuit opinion on that subject may allow the reader to learn whether one type of that over-the-counter medication works better than another.

IN OTHER NEWS, today was by far this blog's biggest traffic day yet. Keep reading, and I'll keep trying my best to give you reasons to check back regularly. We also broke some news today, becoming one of the first Web sites to post a working link to the Sixth Circuit's decision through FindLaw. The Sixth Circuit's web site was swamped and unreachable.

Finally, thanks to fellow blogger Denise Howell for all of her very kind words over the past few days. And thanks to new blog The Chilicheeze Weblog for describing "How Appealing" as a blog that its author has come to enjoy.

Posted at 21:01 by Howard Bashman

BREAKING NEWS: If you'd like to access a copy of the Sixth Circuit's en banc ruling issued today upholding the University of Michigan Law School's use of race-based preferences but can't get through to that court's official Web site due to so much traffic, click here to access the opinion courtesy of FindLaw. A "procedural appendix" to the dissenting opinion of Sixth Circuit Judge Danny Boggs has spawned harsh criticism from certain of his colleagues on that court in their separate opinions and surely is worth a look. I've just found the link to the opinion thanks to the University of Michigan's Web site, which is already trumpeting the school's victory in the case. You can be sure that the next stop for this case will be the Supreme Court of the United States.
Posted at 15:37 by Howard Bashman

THE AMICUS BRIEF that I filed yesterday in the U.S. Court of Appeals for the Third Circuit is now online, and you can access it directly by clicking here.

The U.S. Supreme Court yesterday granted review in no new cases, but it did ask the Solicitor General's Office to weigh in on an interesting case that arises from the Second Circuit. In Attorney General of Canada v. R.J. Reynolds Tobacco Holdings, Inc., the government of Canada brought a RICO suit against various cigarette manufactures and accused the manufacturers of promoting cigarette sales on the Canadian black market in order to avoid the imposition of Canadian taxes. In 1991, Canada doubled its tax on a carton of cigarettes, which raised the average price of a carton from $26 (Canadian) to $48 (Canadian); the result established that cigarette taxation actually does work to reduce consumption. In any event, the Second Circuit affirmed the district court's dismissal of Canada's complaint (you can access the Second Circuit's ruling here), causing Canada to seek U.S. Supreme Court review. Sixth Circuit nominee and Jones, Day partner Jeffrey S. Sutton was among the lawyers who represented R.J. Reynolds in the Second Circuit and, now, in opposing U.S. Supreme Court review. It will be interesting to see what position the Solicitor General takes in this case.

Speaking of the S.G., the editorial page of today's New York Times characterizes his footnotes about the Second Amendment's scope, expressed in two recent U.S. Supreme Court briefs, as "an ominous reversal on gun rights." For reasons I have previously explained, in earlier postings that you can find below, I disagree.

One of the more interesting passages in yesterday's lengthy U.S. Supreme Court decisions came in Justice Thomas's lead opinion in Ashcroft v. ACLU, No. 00-1293 (U.S. May 13, 2002). There, in describing the Internet, Justice Thomas explained that "While 'surfing' the World Wide Web, the primary method of remote information retrieval on the Internet today, individuals can access material about topics ranging from aardvarks to Zoroastrianism." What is "Zoroastrianism," you ask? Click here to find out.

Posted at 10:43 by Howard Bashman

Monday, May 13, 2002
A RATHER QUIET DAY on the opinion front from both the Third Circuit and the state appellate courts of Pennsylvania. Similarly, my favorite Seventh Circuit judges issued no opinions today. But, the Supreme Court of the United States did not disappoint expectations. The High Court issued more opinions in argued cases today--a total of four--than it has issued in any other single day so far this Term. One of today's decisions was truly massive, tipping the scales at 104 pages (counting the syllabus). Two others clocked in at around 50 pages. The final decision was a mere 13 pages, including its syllabus. The Court's total output today: 216 pages of printed text. And, regrettably, today's lengthiest opinion would also appear to be the most boring, unless, that is, you're a fan of telephone deregulation. The Third Circuit did not emerge entirely unscathed today; one of the four decisions (the 54-pager) vacated the Third Circuit's ruling that had declared the Child Online Protection Act (COPA) unconstitutional and sent the case back to the Third Circuit for additional proceedings. But since a majority of the Justices expressed doubts about the law's constitutionality, supporters of the COPA law viewed the decision more pessimistically than the law's opponents. I'll discuss today's rulings in a bit more detail below after addressing a few other things. The U.S. Supreme Court takes the bench again on Monday, May 20, 2002, and you can expect more opinions to issue then.

Thanks to the appearance of my column on appellate developments published in today's issue of The Legal Intelligencer, this blog saw lots of traffic today. Also, thanks to the blog Outside Counsel for providing a link to this blog and for the readers who have found their way here as a result. Amazingly, the Internet's best search engine, Google, added this blog to its directory over last weekend, and as of that time this site hadn't even been in existence for one whole week. That's what I call a timely and comprehensive search engine. Surprisingly, I'm in The Legal Intelligencer again tomorrow (Tuesday, May 14, 2002). My former law firm just named a new chair of its litigation department, but for whatever reason the article reporting that news still finds time to mention me and my colleagues who left for Buchanan Ingersoll over one year ago. Oh, and speaking of me, I got my amicus brief (garish green covers and all) filed in the Third Circuit today with plenty of time to spare. Before the end of the day Tuesday, you should be able to access it here; it's the brief whose subject matter involves attorney discipline, due process, and the First Amendment.

A columnist for Newsweek says in its current issue, dated May 20, 2002, that blogs pose no threat to the established media. Let me be the first to say that the established media pose no threat to this blog. Touche. While on the subject of the established media, today's edition of The New York Times contains, between its editorial and op-ed pages, a total of four law related items. Two are worthy of special mention. Columnist Bob Herbert continues his battle against the death penalty. And an editorial suggests that New York City, to save hundreds of millions of dollars, could and should become much stingier when it comes to paying generous settlements in lawsuits alleging injuries from the conditions of the city's streets and sidewalks.

Returning, now, to today's U.S. Supreme Court news. In Ashcroft v. ACLU, No. 00-1293 (U.S. May 13, 2002), the Supreme Court vacated and remanded the Third Circuit's decision that had affirmed the district court's entry of a preliminary injunction prohibiting the Child Online Protection Act from going into effect. But, the Supreme Court allowed the injunction to remain in place. Senior Third Circuit Judge Leonard I. Garth wrote the decision the Supreme Court vacated; Third Circuit Judges Richard L. Nygaard and Theodore A. McKee rounded out the panel and joined in that ruling. Typically, the Third Circuit assigns the same judges when a case is sent back for further proceedings by the U.S. Supreme Court. On the dispositive issue in this case, the Supreme Court split in its rationale 3-2-3 with Justice Stevens dissenting; he was the lone member of the Court who would have voted to affirm the Third Circuit's judgment. The Third Circuit had ruled unlawful, given the Internet's global reach, COPA's use of local community standards to determine whether material on the Internet was obscene. The Supreme Court disagreed that this reason, standing alone, was sufficient to strike down the law as unconstitutional, although a majority of the Justices seemed to question whether the law could survive after other related First Amendment considerations were placed into the balance.

In a second case involving adult entertainment, the Court failed to issue a majority opinion, splitting 4-1-4, with Justice Kennedy's vote serving as tie-breaker. At issue here was whether the City of Los Angeles could prohibit more than one adult entertainment business in a single building without violating the First Amendment. The Ninth Circuit answered "no," and whenever the Ninth Circuit is involved the chances of reversal are pretty high (although the 9th has, admittedly, won its fair share of affirmances already this Term). This case ends up in the Ninth Circuit's loss column, however. As a result, Los Angeles now gets to defend the constitutionality of its zoning ordinance at trial.

When a state removes a case from state court to federal court, it waives its Eleventh Amendment immunity, the Court ruled in today's only unanimous decision. This result marks a victory for the Emory Law School professor who argued this case on behalf of the petitioner, a Kennesaw State University professor. You can find an interesting article about the case here.

Finally, for those readers who love telephone regulation, you can read 104 pages about it in the Court's ruling today in Verizon Communications Inc. v. FCC, No. 00-511 (U.S. May 13, 2002). Justice Souter wrote the majority opinion, and Justice Breyer wrote a lengthy dissent. Justice Scalia joined part of the majority opinion and part of Justice Breyer's dissent. I haven't had a chance yet to wade through the issues that caused these two former First Circuit colleagues (Justices Souter and Breyer, that is) to reach different results. Given the fireworks that often erupt when Justice Scalia and Justice Souter hold views on opposite sides of an issue, it's too bad that Justice Scalia didn't write a his own partial dissent, although one could understand why he might not pick a telephone regulation case as a matter in which to get particularly exercised.

What might I find more interesting than telephone regulation? For one thing, the derivation of the term "Bollywood." Now that the nearly four-hour-long movie "Lagaan," an import from India, has been getting rave reviews, I've been wondering how the term "Bollywood" came to describe India's film industry. Thanks to the Internet, I've learned that "the term Bollywood is an amalgam of Bombay and Hollywood." One of the very best parts of Terry Zwigoff's fine film "Ghost World" was the opening credits sequence, in which the song "Jaan Pehechaan Ho," performed by Mohammed Rafi, is shown from the Bollywood film "Gumnaam" (1965). The "Ghost World" DVD contains the entire song's performance from "Gumnaam," with lots of wild singing and dancing, as an added extra. You can hear a far too brief excerpt of the song here, if you have Real Player installed and have your speakers turned on. Happy listening!

Posted at 23:49 by Howard Bashman

A SPECIAL WELCOME to everyone who has found his or her way here thanks to either the print or online edition of The Legal Intelligencer, Philadelphia's daily newspaper for lawyers. My monthly column on appellate advocacy, which appears in today's issue, addresses the impact that technology has had and likely will have on appellate litigation. You can access my most recent column right now at The Legal's Web site using this link.

And thanks to all of the other law blog sites that have so far enjoyed their visits here enough to post a positive comment about this place on their sites. I've mentioned a few of these already in previous posts, which appear below. My most recent mention is on the blog of Ernie the Attorney. He seems to know a whole lot about technology and has a nicely rhyming name, giving me two reasons to envy him. He wishes that my blog were an "XML/RSS feed," and I'm certain I'd agree with him if I only knew what he was talking about.

FOR YOU FIRST TIME VISITORS, let me tell you a little about what is going on here and how this all works. I try to make postings to this site twice-daily every weekday, once in the morning and again at night. Most of what I have to say deals with appellate litigation, courts, lawyers and the law, although I've been known to lapse into tangents that are either entirely irrelevant or that seem to prove only that I have an overly aggrandized view of myself. So, let me apologize in advance for when that happens. For people truly new to Web logs, I type this text into my computer, which is connected to the Internet, then I press a button, and voila, my text is available over the worldwide Web. My most recent entries appear here at the top of the page (where this posting once was, believe it or not), and previous entries, in descending order of recency, appear below.

The reason I'm making this morning's posting at such an early hour is that I have a very busy day ahead of me. For starters, I have a Third Circuit brief due today. It's about 98 percent finished and out the door, but there's still a bit more finalizing to do before it can be filed. (And then there's the photocopying, which sometimes goes more smoothly than others.) I've always been a little compulsive about trying to make sure that my appellate briefs, to borrow the former slogan of a certain military force, be all that they can be. And, now that I'm an appellate columnist for a major legal publication, co-chair of the Appellate Courts Committee of the Philadelphia Bar Association, and head of the appellate group at a large law firm--well, you can see where this is leading. But, this appellate brief is now entirely written but for its Summary of the Argument, which I always save for last, and I am already quite satisfied with it. The text of the brief should be posted on my law firm's Web site at this link sometime on Tuesday, May 14, 2002, so please check back and see for yourself how it turned out. I can guarantee you that you haven't seen too many cases like this one. Another added piece of pressure is that I took this case as a pro bono assignment from the U.S. Court of Appeals for the Third Circuit, and my task is to file a brief seeking affirmance of an order that the entire federal district court here in Philadelphia, Pennsylvania voted on. So, not too much pressure there(!).

In addition to my Third Circuit brief, on the day that my column appears I email a copy of it to various friends, family and fellow appellate lawyers who have expressed an interest in receiving it. Thanks to this blog, I'm sure that my column will now be coming to the attention of many people who don't usually see The Legal Intelligencer or regularly practice in the Third Circuit or the state appellate courts of Pennsylvania. Sometimes my column focuses on topics that might not be of interest to lawyers from outside of the region where I practice, but other times (like this month, when I'm addressing technology's impact on appellate litigation) I simply refuse to be confined by arbitrary borders. If you'd like to receive my column by email each month, you can sign-up at my law firm's Web site using this link. I send out the column in PDF format, which will require you to have the free Adobe Acrobat reader installed. Chances are you already have this program on your machine. But if you don't--well, my mom figured out how to install the reader on her computer, so don't fear.

Today, in addition to all of the other appellate courts that I regularly monitor, I'll be on the lookout for U.S. Supreme Court decisions. The High Court last month heard the last of its oral arguments for this Term, and now it will focus on producing written opinions in all of the argued cases before going on summer recess at the end of June. Tonight's posting will summarize today's opinions (or will observe that, in a surprise development, only orders were handed down).

Finally for this morning, I've spent so much time working this weekend that I barely had a chance to glance at Saturday's New York Times and hardly even saw any part of Sunday's. But the cover of Saturday's paper contained a story that predicts that summer air travel will be an "endurance test." That news makes me feel even better that I have decided to drive to Pittsburgh late next month for my law firm's litigation department retreat. Of course, driving 300 miles across Pennsylvania and then back later the next day might prove to be something of an endurance test itself. At a minimum, it's guaranteed to cause me to reminisce about my car trips late each summer in 1986, 1987 and 1988 from the southern New Jersey shore to law school in Atlanta, Georgia in my eight-cylinder 1980 Ford Mustang with no air conditioner and a radio that barely worked. It wasn't nearly as bad as it may sound.

Posted at 00:32 by Howard Bashman

Friday, May 10, 2002
THE LEGAL INTELLIGENCER has posted online tonight the text of my column that will run in that publication's print edition on Monday, May 13, 2002. The person who posted the column online was very kind to provide a live link to this blog, for which I truly thank him or her.

Thanks also to Denise Howell and Rick Klau for the mentions on their blogs. I enjoy your sense of humor Denise! And Rick, I wish I had time right now to respond more fully to your comment that the federal judicial confirmation standstill might cut down on the number of cases reaching the U.S. Supreme Court--a result you imply would be justly ironic. Unfortunately, I don't have enough time to provide an explanation, but my short take is I don't agree that the confirmation slowdown will reduce the number of cases on the High Court's docket. Jonathan Groner of has an article in Monday's Legal Times that telegraphs the chances of those eight men and women in President Bush's first crop of appellate court nominees who have yet to be confirmed or rejected by the U.S. Senate. You can access the article here.

UCLA Law Professor Eugene Volokh of The Volokh Brothers blog wrote a very interesting op-ed piece on the still swirling controversy over the correct meaning of the Second Amendment. It ran in today's issue of The Wall Street Journal. You can access it on The Journal's Web site at this link, although you may have to complete a "free" registration process to gain access. (Oh no! Have I now trotted out the dreaded "scare quotes"? If you love them as much as I do, you must check out this link.)

And speaking of something for nothing, today's Seventh Circuit gem of an opinion comes from Judge Terence T. Evans in United States v. Cross, No. 01-2720 (7th Cir. May 10, 2002). Notwithstanding his repeated brushes with the law, the defendant in that case while still on supervised release from his last federal criminal sentence devised a scheme whereby purchasers of Beanie Babies and Pokemon cards would send him money and in exchange--get this--receive nothing. As the father of a Pokemon obsessed youth, it is clear to me that stiff punishment of the offender was warranted. U.S. District Judge for the Northern District of Illinois Charles P. Kocoras agreed and sentenced the defendant far off the Sentencing Guidelines charts to 180 months of imprisonment--15 years to you and me. The criticism most often leveled at the U.S. Sentencing Guidelines is that they are too harsh, not too lenient. But in defendant Cross's case, both Judge Kocoras and the unanimous Seventh Circuit panel reviewing the legality of the defendant's sentence agreed that an upward departure was appropriate, making this one of the atypical cases in which the Guidelines are too weak. Nevertheless, the defendant won his appeal, because the trial judge didn't follow the proper method in determining how much extra prison time to impose. So Judge Kocoras, who told the defendant at sentencing that "[t]he only thing that guides me, Mr. Cross, in my consideration is to incapacitate you for as long as I can," will now get another chance to send this defendant away for a very long time. For all you Beanie Baby and Pokemon fans out there, I'll remain on the lookout for any further appeals from this defendant that the Seventh Circuit decides.

Posted at 23:35 by Howard Bashman

WORTH checking out: She's an appellate lawyer and she's got her own blog; so what if it's not totally devoted to appellate litigation. Who? Attorney Denise Howell from the law firm of Crosby, Heafey, Roach & May. You can access her very interesting law-related blog here.

2,000 words: That's the word limit for my monthly column on appellate developments published in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers. It's plenty of room, substantially more than most of the regular op-ed columnists get for each of their columns at The New York Times. But sometimes even 2,000 words is not enough.

Although my column for this month, discussing technology's impact on appellate litigation, has in my humble opinion turned out just great (you can see for yourself by reading The Legal Intelligencer on Monday, May 13, 2002 or by clicking here after Tuesday, May 14, 2002), I didn't have enough space to relate in that column one recent, unusual story of relevance. But here, I have no limitations on space; all I must fear are limitations on my readers' patience.

Appellate lawyers usually labor in obscurity, but the Internet no longer makes that as easy as it once was. On Monday, April 15, 2002, I received an email from a junior high student in Tahoma, Washington who was working on an honors project at her school that involved the U.S. Supreme Court case of Celotex Corp. v. Edwards, 514 U.S. 300 (1995). That was the very first U.S. Supreme Court case in which I sat at counsel table in that Court, and the party on whose behalf I had written the merits briefs ended up winning by a margin of 7-2. Thanks to the Internet, this young lady was able to learn that I was one of the lawyers for one of the parties, and she had a whole bunch of questions about the case in connection with her honors project. And, in return, I had one big question for her: Why did she pick this obscure and complicated case?

When most lawyers think of the Celotex U.S. Supreme Court case, they have in mind a widely cited ruling that addressed when federal trial courts should grant summary judgment. The Celotex case on which I worked, by contrast, involved the effect of bankruptcy on supersedeas bonds that a party had filed before it went into bankruptcy. (Supersedeas bonds are, in essence, guarantees from a financial institution, such as a bank or insurance company, that the bank or insurance company will pay the judgment if the losing party doesn't or can't. In Celotex, the losing party had gone into bankruptcy after posting the bond.) Her answer to my question was that the case involved so many different subject matters, such as science (because the claimant had an asbestos-related injury), business, and law, that her project on the case allowed her to get honors credit in all of her classes. We have spoken by telephone once and exchanged a number of emails about the case, and this young lady seems to have a very good understanding of a very difficult case and subject matter. She says that her project will culminate in a Web site devoted to the case.

While I never would have anticipated that this case would spawn a Web site, when it does go online I certainly will provide you with a link to it. Working on that case, which took me repeatedly to Tampa, Florida (mostly during the summer, I'm sorry to say), was one of the best professional experiences I have had to date. Reminiscing about this case has also caused me to recall one of the sad coincidences that occurred. The U.S. Supreme Court decided the case on April 19, 1995, just moments before a horrendous bomb blast destroyed the Alfred P. Murrah federal building in Oklahoma City. Not that the Supreme Court's ruling in Celotex Corp. v. Edwards was all that newsworth to begin with, but the bombing assured that the decision received no newspaper coverage the next day anywhere other than in The Wall Street Journal.

If you have Real Player installed and speakers attached to your PC (and, in 2002, who doesn't?), you can watch online C-SPAN's weekly program America and the Courts. The episode that aired on Saturday, May 4, 2002 contained the remarks that Justice Clarence Thomas delivered on April 8, 2002 at Holy Cross College in Worcester, Mass. (his undergraduate alma mater) and the question and answer session that followed. For those who have seen Justice Thomas speak recently at other events, his prepared remarks included little new material. However, the question and answer session contained some unusually hostile questioning, and Justice Thomas did a fine job of handling those questions and keeping the overwhelming majority of the audience on his side.

Unless anything really newsworthy happens today, you'll hear from me next on the morning of Monday, May 13, 2002.

Posted at 09:14 by Howard Bashman

Thursday, May 09, 2002
THE CONTROVERSY over the Solicitor General's Second Amendment footnote is beginning to subside. Findlaw has provided access to the two briefs in question; you can see them here and here. Charles Lane, the reporter who covers the U.S. Supreme Court for The Washington Post, has a news analysis piece on the subject in today's paper. And, in The New York Times, columnist Bob Herbert devotes today's installment of his column to the topic.

Of course, in order for the vast majority of cases to reach the U.S. Supreme Court, they must first pass through the lower courts. Due to increasing judicial vacancies in the federal court system, it's becoming harder and harder for cases to be processed and decided in a timely manner. With the U.S. Senate under the control of the Democrats and a Republican President who obtained that position, in the view of many, due to the votes of the most conservative members of the U.S. Supreme Court, it has become all but impossible for President Bush to get confirmed the many conservative judges he has been nominating. True, when the Republicans were in control of the Senate, they did not make it easy for President Clinton to get the most liberal of his nominees onto the federal appellate courts. But, at present, the nomination process has nearly slowed to a halt, and Democratic Senators are saying on the record that they simply will not confirm conservative nominees. Which side will blink first remains to be seen. For now, the sides are merely trading harsh words and accusations. Today it was President Bush's turn to comment. You can read his remarks here on the White House's Web site. is running two stories, one from the Associated Press and the other from two of its correspondents. Professor Marci A. Hamilton of the Benjamin N. Cardozo School of Law, who happens to be a former law clerk to Third Circuit Chief Judge Edward R. Becker and U.S. Supreme Court Justice Sandra Day O'Connor, urges an end to the judicial confirmation deadlock crises in her column today on

Speaking of judicial vacancies, the Third Circuit currently has three unfilled seats among its allotment of fourteen active judges. Thanks to the hard work of the Court's eleven remaining active judges, the very hardworking senior judges on the Court, and the federal judges on the district courts and other circuits who are willing to sit on the Third Circuit by designation in addition to doing their regularly assigned work, the Third Circuit has remained current so far. President Bush should make a nomination to fill the Third Circuit vacancy in New Jersey, which has been open for nearly two years, and the Senate should decide as promptly as possible whether to approve President Bush's nomination of Chief U.S. District Judge for the Western District of Pennsylvania D. Brooks Smith. Tomorrow marks the eight month anniversary of Chief Judge Smith's nomination to the Third Circuit, and one cannot predict how much longer it will take for the Senate to give him a thumbs-up or thumbs-down. The only known cure to a modern-day federal judicial nomination logjam is to elect a Senate majority from the same political party as the President.

The opposite of a vacancy is having one member more than the organization's rules allow, and that was the situation the U.S. Commission on Civil Rights appeared to be facing until today. The U.S. Court of Appeals for the District of Columbia Circuit ruled today that President Bush's appointee to the commission, Peter N. Kirsanow, in fact replaced Victoria Wilson, whom President Clinton appointed to the commission on January 13, 2000. You can access the D.C. Circuit's opinion here. At issue was whether Wilson was entitled to a full six-year term or only could serve the balance of the term remaining for the member she replaced, who had died before his term was completed. Thanks to this imbroglio, the commission had, in essence, an extra member for a while. Because no opinions of note issued today from the Third Circuit, it is worth pointing out that this D.C. Circuit case had two Third Circuit connections. The commission member whose term Wilson was appointed to complete was former Third Circuit Chief Judge A. Leon Higginbotham, Jr. (The D.C. Circuit's opinion omits the "Jr." in his name.) The other Third Circuit connection is that Gregory G. Katsas, U.S. Deputy Assistant Attorney General, argued the case for the U.S. Department of Justice. If memory serves, Katsas also clerked for Third Circuit Chief Judge Becker before heading to Washington, D.C. to a U.S. Supreme Court clerkship.

The Superior Court of Pennsylvania issued a decision today that should serve to remind appellate practitioners there that indolence is not appreciated by the court. According to the Court's opinion, the appellant's brief consisted of just three perfunctory paragraphs that sought to incorporate by reference arguments set forth in two trial court briefs and in a brief filed in an earlier Pa. Superior Court appeal. In the final sentence of its six-page opinion, the Court writes: "We are constrained to conclude that such incorporation by reference constitutes waiver of Appellant's issues on appeal."

Penthouse Magazine (sorry, you'll have to find the link on your own) has, as you may have heard, gotten itself into hot water because the photographs that its latest issue says show tennis star Anna Kournikova in the nude are in fact photos of someone else. Both Anna and that someone else have threatened suit against Penthouse. Findlaw provides a link to the complaint that Anna has filed in the U.S. District Court for the Central District of California. Be forewarned--the complaint contains some graphic language.

Finally, today's issue of The Los Angeles Times contains on its front page a troubling news story about a new, even younger generation of mesothelioma victims who probably contracted the disease through exposure to asbestos fibers. An asbestos-related case produced my first victory in the U.S. Supreme Court, but I'll save that story for another time.

Posted at 22:35 by Howard Bashman

WINNING and losing. At yesterday's meeting of the Philadelphia Bar Association's Appellate Courts Committee, one of the lawyers in attendance asked our guest, a Judge on the Superior Court of Pennsylvania, if the quality of the lawyering in an appeal impacts the result. The Judge, without any hesitation, answered "yes." This response, as regular readers of my monthly appellate developments column in The Legal Intelligencer already know, accords with my previously expressed views on this topic.

Yet I cannot help but feel that the question and answer oversimplify the subject. Appellate judges do not read the opposing parties' briefs and then decide which party will win depending on which party has the better brief or the better lawyer. Instead, the judges decide cases based on their understanding of what the facts are, what the law is, and which side deserves to win based on those facts and that law. How, then, does quality of lawyering factor in? An effective lawyer, who submits an effective brief, has a better chance of persuading appellate judges to adopt his or her client's view of the facts and the law than does an ineffective lawyer. Nevertheless, if the law and the facts favor the client of a lawyer who is horrendous at appellate advocacy, that lawyer's client should, and usually does, win. Appellate advocacy is not a contest to judge which side's lawyer is best; instead, it is a contest to reach the right result under the facts and the law.

The appellate court that may best exemplify this point is the Supreme Court of the United States. That Court, which possesses essentially absolute control over the cases it decides to hear, typically grants review when a case presents an important question of federal law as to which lower courts have divided. Thus, when the Court grants review of a case, the question of law at issue usually has been thoroughly examined in the lower courts. The quality of lawyering in the Court is generally quite high, and often amicus briefs will be filed by lawyers for non-parties that have an interest in the issue presented. Additionally, each of the nine Justices serving on the Court has a fairly well-known approach for how he or she addresses a legal question. All this leads me to conclude that, in the U.S. Supreme Court at least, the quality of a party's lawyer perhaps has less of an impact on the result than it might have in the lower federal appellate courts or in the state appellate courts. Lawyers who practice regularly before the U.S. Supreme Court tend to be top-notch appellate advocates, but a lopsided victory record there may establish little more than a knack for picking the side of a case that is likely to win.

Posted at 09:24 by Howard Bashman

Wednesday, May 08, 2002
FOR TWO OTHER educated views on the Solicitor General's Second Amendment footnote, be sure to visit today's postings from UCLA School of Law Professor Eugene Volokh, on his blog entitled The Volokh Brothers, and today's postings from University of Tennessee College of Law Professor Glenn Harlan Reynolds, on his blog entitled InstaPundit.Com. Both sites are worth visiting on a regular basis.

Seventh Circuit Judge Terence T. Evans's opinion today in United States v. Traeger, No. 01-2154 (7th Cir. May 8, 2002), provides another example of why I enjoy his style of writing so much. That case not only had as its protagonist a bank robber nicknamed "Mountain" who tipped the scales at 6'5" and 350 pounds, but it also involved a trial transcript that was in surprisingly serious disrepair. Judge Evans on the transcript: "If there were awards for sloppiness, the court reporter (who, out of charity, we will not name) here would win first prize." Judge Evans on the defendant's objection to the fact that he was the most massive person in the line-up from which the bank tellers identified him: "Additionally, we note that it would have been difficult to find five other men approximating Traeger in size and physical appearance--outside of the NFL, six and a half footers who tip the scales at 350 pounds are fairly rare. Authorities conducting lineups are required only to make reasonable efforts under the circumstances to conduct a fair and balanced presentation. They are not required to search for identical twins in age, height, weight, or facial features."

Closer to home, two decisions that appeared today on the Third Circuit's Web site are worthy of mention. In a for publication order issued today, the Court withdrew its grant of rehearing en banc in Robinson v. Johnson, No. 00-1979 (3d Cir. May 8, 2002), and instead returned the case to the original panel for a panel rehearing. It's too soon to know what this means, so stay tuned. The original panel, which again has control over the case, consisted of Circuit Judges Dolores K. Sloviter, Richard L. Nygaard and Thomas L. Ambro. Judge Nygaard wrote the panel's original opinion, which held that the Commonwealth of Pennsylvania had waived a statute of limitations defense in this habeas corpus action. Judge Sloviter dissented; while she agreed that the statute of limitations defense could be waived, she disagreed that it was waived in this case. Attorney David C. Glebe of the Philadelphia District Attorney's Office represented the defendants-appellees. Attorney Paul Rosenzweig represented the plaintiff-appellant in this habeas action. Rosenzweig is noteworthy because he served as an attorney on Kenneth Starr's staff in the Whitewater investigation. Before that, he served as law clerk to Eleventh Circuit Judge R. Lanier Anderson, III. When I was interviewing for a judicial clerkship, I too interviewed with Judge Anderson, but instead of getting a clerkship in Macon, Georgia, the fates intended for my federal appellate clerkship to be based in Pottsville, Pennsylvania. Thanks to the un-en-banc-ing of Robinson, I will have one fewer case on which to report in my October 2002 column, which is to be this year's installment of my annual round-up of Third Circuit en banc cases. (Click here for my 2001 en banc round-up.) In its most recent en banc ruling, issued just over one week ago, the Third Circuit in Crissman v. Dover Downs Entertainment Inc., No. 00-5178 (3d Cir. Apr. 30, 2002), ruled as I had predicted it would and held that the plaintiff could not assert a federal civil rights claim against the private, non-governmental defendant named in the suit. That ruling was unusual in that a judge not on the original panel had to be assigned to write the majority opinion, because the two Third Circuit judges on the original panel both dissented from the en banc decision.

The second Third Circuit decision issued today that is of note is the not precedential ruling in Thompson v. Kelchner, No. 01-3406 (3d Cir. May 8, 2002). This decision is noteworthy both for its sizeable length and because it reverses the district court's grant of habeas corpus relief to the plaintiff. In the most recent of my appellate columns to address the subject of unpublished opinions, I argued that reversals should rarely if ever be unpublished. The Third Circuit, since January 1, 2002, has seemed largely to agree--only a few of its unpublished opinions have produced reversals. The opinion in Thompson has precedential value, in my view, because it contains a necessary reminder for district judges of the perils of trying to define and re-define the key term "reasonable doubt" in a criminal trial.

Today's meeting of the Philadelphia Bar Association's Appellate Courts Committee, which I co-chair, went very well. The guest, a Judge from the Superior Court of Pennsylvania, gave a very interesting talk, and the lawyers in attendance had plenty of questions to ask once the talk ended. My appellate column on the impact that technology has had on appellate litigation, which will be published in The Legal Intelligencer next Monday, is essentially finished, except for the one last read through I'll give it before emailing it on to my editor tomorrow. My appellate brief due in the Superior Court of Pennsylvania next Friday is drafted, and now it just needs editing and cites to the record. A colleague with plentiful common sense read it over tonight and found it persuasive, which is always a good sign. Tomorrow I will spend most of the day writing the text of my amicus brief that the Third Circuit appointed me to file in an attorney discipline case. It is due next Monday. Some people take days to draft an appellate brief, but I prefer to do the bulk of my writing of an appellate brief all on one day whenever possible. And I don't like to start writing until I understand everything I need to know to write the whole brief. What I say on page 5 affects what I say on page 35, and vice versa, which is why I need a firm grasp on the middle and end of the brief before I start to write the beginning. When I write an appellate brief, I write the brief. The idea of having two writers divide an appellate brief doesn't make sense to me, although it is probably better than having one really bad writer do the whole brief if the other writer is half decent.

Posted at 22:06 by Howard Bashman

ON RARE OCCASION, a party's appellate brief can create front page news. Take today, for instance. The Solicitor General of the United States, who serves as the federal government's attorney in cases pending in the Supreme Court of the United States, filed two briefs in that Court yesterday in which the federal government announced its new understanding of "the right of the people to keep and bear Arms" found in the Second Amendment to the United States Constitution.

According to news reports, the briefs contained a footnote stating: "In its brief to the court of appeals, the government argued that the Second Amendment protects only such acts of firearm possession as are reasonably related to the preservation or efficiency of the militia. The current position of the United States, however, is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse." When those briefs are posted to the Solicitor General's Web site, I will post links to them here.

Although I am no Second Amendment expert--few appellate lawyers are--I cannot help but feel that the negative reaction that this development has and will provoke from gun control groups and others is unwarranted. Why, you ask? For two reasons.

First, the briefs that the Solicitor General filed in the Supreme Court yesterday do not ask the Supreme Court to adopt the SG's view of the Second Amendment, and the cases in which those briefs were filed do not require the Supreme Court to resolve (or, more accurately, to reconsider) whether the Second Amendment confers any rights on individuals to bear arms. The footnotes are merely an expression of policy, rather than a request for a particular ruling on the Second Amendment's meaning. Those footnotes, while understandably newsworthy, thus border on the irrelevant. Consider a comparable scenario. If those briefs had instead contained a footnote stating that "the current position of the United States is that spring is the best season of the year," few people would be up in arms (pardon the pun). But the actual footnote is quite similar. The U.S. Department of Justice doesn't get to have the final word on what season is best, nor does it get to have the final word on the Second Amendment's meaning. Instead, the federal courts, and the Supreme Court in particular, have the final word on what the Second Amendment means. And, in 1939, in United States v. Miller, 307 U.S. 174 (1939), the Supreme Court ruled that the Second Amendment only protects gun ownership rights that have "some reasonable relationship to the preservation or efficiency of a well regulated militia." Until the Supreme Court overrules that decision, which a majority of the Court does not appear to be on the verge of doing, the Justice Department's view on the Second Amendment's meaning doesn't carry much weight.

Second, it would be unfair for gun control supporters to suggest that the executive branch of the federal government is willing to do whatever it takes to put guns in the hands of the populace. The footnote itself recognizes that any Second Amendment right is "subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse." Even more telling is the position the Solicitor General is taking in the case known as United States v. Bean, No. 01-704 (U.S.), which will be argued in the Supreme Court this fall. Under federal law, someone convicted of a felony is prohibited from possessing a firearm unless the Secretary of the U.S. Treasury grants an exception. The federal government has placed the Director of the Bureau of Alcohol, Tobacco and Firearms in charge of considering applications for such exceptions from convicted felons who have served their sentences. Since 1992, however, Congress refused to authorize the expenditure of any funds to consider applications from convicted felons seeking the restoration of firearm rights. The question presented in Bean is whether that prohibition on funding prevents federal courts from considering such applications simply because the ATF is prohibited from doing so. The Solicitor General's merits brief in that case, filed last month, argues that Congress's action in refusing to fund the ATF's consideration of such applications prevents the federal courts from reinstating gun possession rights to convicted felons. This is not the argument of an administration that wants to get as many guns into the hands of the people as possible.

The Second Amendment is, undeniably, a controversial provision. By typing the term "Second Amendment" into a search engine such as Google, you would probably turn up enough rantings and ravings on the topic from our fellow citizens to keep you glued to your computer screen for days. My views on the Second Amendment's meaning, as I have implied earlier in this post, are rather undeveloped. Guns in the hands of criminals are a bad thing. Guns make it rather easy to kill or seriously injure another, although knives and baseball bats can also inflict grievous, deadly harm. Let's remember, though, that today's footnote in the scheme of things won't have very much effect on anything. To quote entirely out of context from a recent dissenting opinion issued by Justice Clarence Thomas, "After all, '[i]n the long run we are all dead.' John Maynard Keynes, Monetary Reform 88 (1924)."

Posted at 09:06 by Howard Bashman

Tuesday, May 07, 2002
THE U.S. COURT of Appeals for the Third Circuit posted a precedential decision today on its Web site that is likely to receive a whole lot of news coverage tomorrow, because the decision reinstates a class action alleging that the NCAA has intentionally discriminated on the basis of race against black student athletes. Pryor v. NCAA, No. 01-3113 (3d Cir. May 6, 2002). Yes, it's true that the Third Circuit posted this decision to its Web site today even though the decision is dated yesterday. Moreover, the case's Third Circuit docket confirms that the decision issued yesterday. Usually the Third Circuit posts its decisions on the day of issuance, not the day after, and no explanation appears for why the decision didn't appear on the Court's Web site until today.

This case arose when plaintiff Kelly Pryor filed suit against the NCAA in the U.S. District Court for the Eastern District of Pennsylvania. She and a co-plaintiff alleged in their complaint that the NCAA purposefully discriminated against black students when it adopted a policy that caused an increased number of black students, during their freshman year, to lose eligibility both to receive athletic scholarships and to participate in intercollegiate athletics. The plaintiffs sought to bring the case as a class action on behalf of similarly situated plaintiffs. The case was assigned to U.S. District Judge Ronald L. Buckwalter, who dismissed plaintiffs' claims for failure to state a claim for which relief may be granted.

Dismissals at that early stage of litigation are the type of order that appellate courts tend to reverse the most. The Federal Rules of Civil Procedure, which govern the pleading of a claim in federal court, provide simply that a complaint shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). Federal Rule of Civil Procedure 84 provides that "[t]he forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate." The form complaints contained in the Appendix of Forms are quite succinct, yet many plaintiffs' lawyers refuse to take advantage of the brevity of pleading that the federal rules allow and encourage. The Third Circuit's opinion in the Pryor case states that the complaint there was 49 pages long, which does not meet my definition of succinct. Of course, a lengthy complaint did not prove fatal in Pryor, because the Third Circuit reinstated the central claim at issue in the case.

Aside from its newsworthy subject matter, the Pryor case also merits mention because it pitted two very highly regarded Philadelphia litigators against one another on appeal. Andre L. Dennis of Stradley Ronon Stevens & Young, LLP (the opinion incorrectly lists his middle initial as "J.") represented the plaintiff who won on appeal. David P. Bruton of Drinker Biddle & Reath, LLP represented the NCAA. Dennis and Bruton argued the case just over one month ago, on April 1, 2002, before a Third Circuit panel consisting of Third Circuit Judges Dolores K. Sloviter and Julio M. Fuentes and visiting Circuit Judge Paul R. Michel from the U.S. Court of Appeals for the Federal Circuit. Judge Michel wrote the 33-page opinion, which is noteworthy in two respects.

First, the Third Circuit in Pryor correctly recognizes that the Federal Rules of Civil Procedure do not require much for a plaintiff to allege a viable claim. The Seventh Circuit, particularly in opinions written by Judge Posner, has for quite some time taken the correct view that stating a viable claim is easily accomplished under the FRCP. In the Seventh Circuit, so long as any state of facts can be imagined, consistent with plaintiff's pleading, under which plaintiff would have a valid claim against the defendant, the plaintiff's complaint should not be dismissed. The Third Circuit, in the past, has not taken so permissive a view. The Seventh Circuit's approach should be the law in the Third Circuit too, and Pryor is a step in the right direction.

Second, however, Pryor is not entirely bad news for defendants looking to escape the burdens of litigation early. Judge Michel quotes, on pages 15 and 16 of the slip opinion, from a treatise which states that "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading," may nonetheless be considered by the trial court in deciding whether to dismiss a complaint. Traditionally, only the complaint and documents attached to it could be considered. This aspect of the Pryor decision will allow defendants to get the trial court to consider documents not attached to the plaintiff's complaint, so long as they are referred to in the complaint. It will be interesting to see how trial courts will react, in light of this aspect of the Pryor decision, when the defendant produces an authentic document referred to in the plaintiff's complaint that contradicts and demolishes the basis for the plaintiff's claim. Will a dismissal for failure to state a claim be granted, or will the trial court require that the motion to dismiss be converted into a motion for summary judgment? Only time will tell. Judge Michel's reliance on a treatise to establish this proposition, instead of citing to an earlier Third Circuit decision, suggests that this aspect of the Pryor opinion establishes new law in the Third Circuit.

Judge Michel's opinion is very well done. On the Federal Circuit, he probably does not see too many race discrimination claims arising under Title VI of the Civil Rights Act of 1964. Coincidentally, one of my first oral arguments in the Third Circuit was before a panel that included Judge Michel. Third Circuit Judges Becker and Stapleton were the other two judges on that panel. That case, Moscato v. Federal Bureau of Prisons, 98 F.3d 757 (3d Cir. 1996), was the very first pro bono appointment that I ever accepted from the Third Circuit. Judge Becker wrote the opinion there, ruling against my client based on a procedural default that the client committed before he had a lawyer. In footnote five of the opinion, however, Judge Becker kindly noted that I had accepted the Court's pro bono appointment, and that "Mr. Bashman has done an outstanding job, and we commend him for his excellent legal work." 98 F.3d at 760 n.5. Even aside from his participation on various Third Circuit panels, Judge Michel is no stranger to Philadelphia. He began his career as a lawyer in that city, working in the Philadelphia District Attorney's Office. And, before joining the Federal Circuit in 1988, he served on the staff of Pennsylvania Senator Arlen Specter.

In other news, I have decided to drive, rather than to fly, to Pittsburgh in late June for my law firm's litigation department retreat. According to my Chrysler dealer, the ticking noise and unpleasant odor that my car's engine now gives off are both normal after replacement of a catalytic converter, a repair that Chrysler recently completed free of charge under warranty. The dealer further says that these issues will disappear after about 500 miles of use. Given my short commute each day to the train station, it could take quite some time to drive that distance. Driving to Pittsburgh and back, though, will put 600 miles on the car. And, I will save my firm money; the cost of milage is less than the round trip cost of an airplane ticket right now, and that cost doesn't even include parking and the cost of ground transportation to and from the Pittsburgh airport. Plus, I hate few things more than circling Harrisburg for 30 minutes on what should be a 45-minute flight from Pittsburgh to Philadelphia, but that's what one usually endures when flying back to Philadelphia on a weekday evening as I would be doing if I had chosen to fly.

I made significant progress today toward completing my Third Circuit brief due on Monday, May 13, 2002. When I write an appellate brief, I separate the process into three phases. One, I read the record to learn all of the relevant facts and procedural history of the case on which I am working. Two, I read all of the applicable cases, statutes and other relevant sources of legal authority. Then, after completing steps one and two, I write the brief. On this project, I'm almost done researching and reading through the law, and then I plan on looking through the record one more time. Come Thursday, if not sooner, I will be ready to start writing (or, more accurately, typing away on my keyboard, perhaps from home, where I have many fewer distractions than in the office). In reading through the relevant case law, I was reminded that former West Virginia Supreme Court Justice Richard Neely has quite a way with words. I read a decision that he had written on a topic that is relevant to this appeal, and I look forward to finding a way to use several passages from his opinion in my Third Circuit brief, which, next week, you should be able to access here.

Posted at 22:54 by Howard Bashman

I AM DUE TO SUBMIT the text of my monthly column on appellate developments to my editor at The Legal Intelligencer in two days. The column appears in that newspaper on the second Monday of each month, and my deadline is the preceding Thursday. In months when things go according to plan, I write a first draft of the column on the weekend before it is due to be submitted. That, thankfully, is what happened this month, so now I simply have to edit and perfect the thing, but at least something resembling my May 2002 column now exists on paper. When midday Thursday arrives, I will email the column to my editor, and then she or someone on her staff will edit the column to fit the publication's style (which, among other things, means adding the first names of judges where I have omitted them and changing "Third Circuit" to "3rd Circuit").

Whether my work benefits from being edited by The Legal Intelligencer is a question whose answer I will leave up to my faithful readers. Here you get me unexpurgated; there you don't. My law firm's Web site publishes the text of my columns two days after they appear in The Legal, and you can see how they appeared before editing by looking there. I only have a few minor beefs about how my column is edited. In most every instance, what I have written is what you see in print in the newspaper and on The Legal's Web site, where my column usually appears the weekend before it shows up in newsprint. On rare occasion, however, a sentence that I have written will be changed to deprive it of the meaning that I intended. Usually the change deprives the sentence of all meaning, so I trust that my readers will know that what they are reading wasn't the sentence that I wrote. To see what I really said, the reader can check the column posted to my law firm's Web site two days later.

Because writing is the part of my job that I enjoy doing the most, and because appellate litigation is a subject near and dear to my heart, I love having a column devoted to appellate developments in The Legal Intelligencer. One of the best things about the column is that people actually read it and contact me with their thoughts on what I have written. Appellate, trial and administrative law judges have all written, telephoned or emailed me about various columns. Lawyers sometimes write or call. Law students and judicial law clerks read the column and comment. The column has even been cited in law review articles, and you can access the column on Westlaw. Although I truly enjoy receiving praise on my column, one of my favorite reader submissions was an email I received from a law clerk who worked at the Federal Courthouse in Philadelphia about my column addressing the constitutionality of recess appointments to the federal judiciary. That was the fourth column that I had written, and I had yet to adopt the practice of inserting myself the first names of the judges mentioned in the column. That column mentioned a Ninth Circuit en banc dissenting opinion from 1985 that Judge Fletcher joined. My editor at The Legal added "William" as Judge Fletcher's first name. While "William" is the first name of the Judge Fletcher whom President Clinton appointed to the Ninth Circuit (joining that court in 1998), it was his mother, Ninth Circuit Judge (and Carter appointee) Betty Fletcher, who joined the dissent in 1985.

This month's installment of my column addresses the past, present and future impact of technology on appellate litigation. Thanks to technology, I could do my job as an appellate lawyer without hardly ever needing to leave my house. For now, though, I do my best to wake up each day at 5:45 a.m. to slog into the office in downtown Philadelphia. I think that I will mention this weblog in my column this month, so that anyone who needs more than a monthly dose of me can get it here.

One benefit of technology is that, using the Internet, I can access online the docket of the Supreme Court of the United States. I have noticed that certain docket entries (see, for example, this one) include the notation "VIDED" after the filing is described. I asked one of my friends who handles many cases in that Court if he had any idea what the entry meant, and this may be the first time I have ever stumped him on an issue pertaining to the Supreme Court. I could call the Court to ask what it means, but that would take time, effort and the cost of a long distance call. I bet that U.S. Supreme Court trivia expert (and lower court conflict spotter) Thomas C. Goldstein would know the answer to this question. Tom, are you out there?

Today I hope to spend the bulk of my time working on a Third Circuit brief that is due next Monday, May 13, 2002. In this pro bono matter, I have been appointed to serve as amicus curiae and file a brief in support of a disciplinary order that suspended an attorney from the practice of law in the U.S. District Court for the Eastern District of Pennsylvania for thirty months. The Third Circuit rarely appoints lawyers to serve as counsel in support of a result, rather than to represent a party. Here, I represent a position, rather than a party, and I am essentially my own client, which is a role in which I rarely find myself. This case has received plenty of news coverage during the past year, and all non-disqualified district court judges, active and senior, voted on the disciplinary order that is the subject of the appeal. I viewed it as quite an honor to be asked, in essence, to represent the ruling of the entire bench of the U.S. District Court for the Eastern District of Pennsylvania in this appeal. My law firm will post this brief to its Web site when it is finalized, so check back here next week. Meanwhile, you can access the district court's opinions here, here and here.

Judge Easterbrook's opinion of May 2, 2002 in In re Bridgestone/Firestone, Inc., Tires Products Liability Litigation, No. 02-1437 (7th Cir. May 2, 2002), offers a fine example of why I view him to be an excellent writer and thinker. The opinion not only clearly and persuasively explains why a nationwide class action was inappropriate in that case, but in its first footnote the opinion summarizes well how tort law run amuck can overcompensate potential victims and lead to the problem of excess precautions. In reading that particular footnote, I could not help but recall a scene from the movie Fight Club where the same principle was rather graphically portrayed by Edward Norton's character. Oops, now I've gone and violated the cardinal rule of the fight club, which is (of course!) don't talk about the fight club.

Posted at 09:35 by Howard Bashman

Monday, May 06, 2002
TODAY WAS a rather quiet day for the appellate courts that I regularly monitor. The Third Circuit posted a total of zero new opinions to its Web page today. For those who demand even more detail, that means zero precedential opinions and zero not precedential opinions. Similarly, neither the Supreme Court of Pennsylvania, the Superior Court of Pennsylvania, nor the Commonwealth Court of Pennsylvania issued any new opinions today.

As coincidence would have it, though, the Seventh Circuit issued one published opinion today, and it came in a case in which I was listed among counsel on the brief for appellees. The panel of Bauer, Posner and Easterbrook, in an opinion by Judge Posner, ruled in favor of the appellees, pharmaceutical wholesalers, and against the class action opt-out pharmacy plaintiffs in a complicated antitrust suit that challenged a method of selling and distributing brand name prescription drugs. See In re Brand Name Prescription Drugs Antitrust Litigation, No. 00-4206 (7th Cir. May 6, 2002). The parties' briefs can be accessed here. The brief for the defendants-appellees, which bears my name, can be viewed here. My role in this appeal was rather minimal--I reviewed and commented on the draft brief for appellee written by a lawyer at another firm, and I suggested questions that might be asked of our side at the oral argument in Chicago. Tom Rosch of Latham & Watkins argued the case for defendants-appellees; David Boies of Boies, Schiller & Flexner LLP argued for the plaintiffs-appellants. You can listen online to an audio recording of the Seventh Circuit oral argument. Earlier today I mentioned what a great writer Judge Posner is. His opinion in this complex antitrust case, however, would probably make the most sense to someone with a solid background in economic theory.

I live approximately twenty miles northwest of downtown Philadelphia, and according to driving directions available through Expedia, it would take me approximately five hours to drive from home to my law firm's principal office, located in Pittsburgh. Toward the end of June, my firm is holding a day and a half of meetings at its Pittsburgh office for all attorneys in its litigation group, and we are expected to attend in person if at all possible. I'm trying to decide whether to drive my 1995 Chrysler Cirrus, with its new catalytic converter recently replaced under warranty, across this glorious Commonwealth or to travel 45 minutes from home to the Philadelphia International Airport, wait an hour for a plane, fly for an hour, and then sit in a taxi from the airport to downtown Pittsburgh. Five hours to drive, four hours to fly. It's a difficult choice. At the Third Circuit Judicial Conference several months ago, I spoke with a Third Circuit Judge based in Newark, New Jersey who had recently driven from there to Pittsburgh instead of flying. The Judge's description did not make it seem that driving would remain the preferred method of getting to Pittsburgh next time. Which reminds me, the Third Circuit now holds oral arguments not only in Philadelphia and the U.S. Virgin Islands but also in Newark, New Jersey and Pittsburgh.

Since I joined Buchanan Ingersoll over one year ago, the firm has been quite kind in allowing me to accept three pro bono appointments from the Third Circuit. "Pro bono" is short for the Latin phrase "pro bono publico," which translates roughly into "for the public good." In essence, if the Third Circuit discovers that a party's arguments on appeal likely have merit but the party lacks an attorney, the court will ask an attorney with appellate experience to handle the case without compensation. The first of the three pro bono cases that I accepted during the past year from the Third Circuit involved a prisoner's civil rights case in which the central issue was the subject of a circuit split. That means that other U.S. Courts of Appeals had addressed the identical issue but had disagreed over whether the particular type of prisoner's claim should or should not survive dismissal. Cases like this that involve actual, longstanding circuit splits have a very good chance of being granted review by the Supreme Court of the United States. So, I felt quite honored to receive this appointment.

Whether a case is pro bono or for a paying client, you as the lawyer still have a client. After receiving a copy of the entire case file from the Third Circuit, my next step was to visit my client. Because he in prison, that meant I had to travel to where he was. At the time, my client was confined at the State Correctional Institution in Frackville, Schuylkill County, Pennsylvania. During my two-year clerkship for Judge Hutchinson of the Third Circuit, I lived approximately ten miles south of Frackville in Pottsville, Pa. It was quite an experience to get back to that region, and to drive through my old neighborhood, after spending ten years away. SCI-Frackville had not yet been built when I lived in that region, and it appeared to be a very modern correctional facility. As part of its efforts to ensure that no visitor brings any illegal drugs into the facility, the prison performs a search of all visitors--including lawyers--using a system that suctions air from the surface of the visitor's clothing and shoes through a filter that is then removed from the device and scanned in a machine that detects the presence of illicit drugs. Thankfully, the machine produced no false positive with me, and I was allowed in to see my client. My work as an attorney has taken me to nearly ten federal and state prisons. Maybe someday soon I will write about the other prisons, including the Passaic County Jail in Paterson, New Jersey, where I have made a handful of visits recently in connection my pro bono appointment from the Third Circuit to represent an INS detainee from the West African nation of Burkina Faso. Although these pro bono clients are among the most appreciative a lawyer may ever have, I cannot deny that the best part of visiting prison comes at the conclusion of my stay when I walk the path that leads outside to freedom.

Fortunately for my client at SCI-Frackville, he had the much more persuasive side of the circuit split at issue in his case. I filed my brief on his behalf on September 24, 2001. The Office of the Attorney General of the Commonwealth of Pennsylvania would be serving as the lawyer for the prison guards and administrators whom my client sued, but because the trial court dismissed my client's complaint before it was even served on these defendants, the Attorney General's office was not participating in this appeal. The appeal was scheduled to be submitted in January 2002 on my brief alone before a Third Circuit panel consisting of Circuit Judge Anthony J. Scirica, Senior Circuit Judge Max Rosenn, and U.S. District Judge Yvette Kane of the Middle District of Pennsylvania, sitting by designation. Perhaps out of concern that it might be viewed as unfair to decide an appeal involving a circuit split with the benefit of just one party's brief, this panel directed Pennsylvania's Attorney General's Office to file a brief responding to the brief that I had filed. On March 4, 2002, the Pennsylvania Attorney General's Office filed its brief, and, happily, that brief forthrightly admitted that my client deserved to win his appeal and that the circuit split at issue should be resolved in my client's favor. Suffice it to say that this doesn't happen too often. Tomorrow, my client's brief and the brief of the Attorney General of the Commonwealth of Pennsylvania, which agrees that my client's claims against the prison guards and administrators should be reinstated, will be submitted for a decision before a Third Circuit panel consisting of Circuit Judges Richard L. Nygaard and Samuel A. Alito, Jr. and Senior Circuit Judge Max Rosenn. My client's quest to have his claims restored has gained additional help from the Third Circuit's resolution in my client's favor of the identical question presented in the case of Leamer v. Fauver, No. 98-6007 (3d Cir. Apr. 19, 2002). Stay tuned for the Third Circuit's ruling, which could issue at any time after tomorrow.

Finally, the Supreme Court of the United States on April 29, 2002 took the unusual step of refusing to transmit to Congress a proposed amendment to the Federal Rules of Criminal Procedure that had backing of the Judicial Conference of the United States and of the relevant committees thereof that are in charge of amending those rules. Justice Scalia issued an opinion explaining his reasons for not approving the amendment, and Justice Breyer issued a dissent that Justice O'Connor joined. It thus appears that the vote was 7-2 against transmitting this particular amendment, which would have made it easier to admit live testimony in criminal trials from a remote location using a two way video system. Both opinions acknowledge that Congress retains the power to approve the rule that the Supreme Court rejected. However, one must believe that the Supreme Court would only have rejected the rule if it was patently unconstitutional, so Congress would be acting at its own peril if it ignored the Court's action and nevertheless adopted the rule.

Posted at 22:30 by Howard Bashman

How and why I became an appellate lawyer? I became enamored with appellate litigation during the course of my two-year judicial clerkship with the Honorable William D. Hutchinson of the United States Court of Appeals for the Third Circuit. To succeed, appellate lawyers need to be able to write well and debate obscure points of law effectively with appellate judges. Perhaps owing to my background as a student journalist at Columbia College in the City of New York (where I was a John Jay National Scholar) and at the William Penn Charter School in Philadelphia, others have always told me that I am a good writer. And, at Columbia I somehow won the undergraduate version of the George William Curtis prize in oratory, so arguing a point orally also seemed to be within my capabilities. Thanks to doing well at law school at the Emory University School of Law, serving as managing editor of its law journal, my judicial clerkship, and eleven years of private practice as an appellate lawyer, here I am today. Many thanks should also be directed toward my former employer. Before joining Buchanan Ingersoll in March 2001, I served as chair of the appellate litigation section at the Philadelphia law firm of Montgomery, McCracken, Walker & Rhoads, LLP.

During my eleven years as an appellate lawyer in private practice, I have had the pleasure of appearing at counsel table twice in the Supreme Court of the United States, although I have yet to argue a case there. If I may count an additional case in which I submitted an important amicus brief in support of the prevailing party (National Private Truck Council, Inc. v. Oklahoma Tax Commission), my record in the High Court is two victories and one loss. In the U.S. Court of Appeals for the Third Circuit--the appellate court in which I practice most often--my victories have made The Legal Intelligencer's annual round-up of significant Third Circuit appeals three of the past four years. My most recent appellate victory came in the Superior Court of Pennsylvania on April 24, 2002. I represented the plaintiff-appellee who had won what my adversary says is the largest amount of punitive damages ever awarded under Pennsylvania's insurance bad faith statute. After oral argument and a review of the parties' briefs (my brief in that case is available here), the Court affirmed the judgment in full. A story on that ruling is the lead article in this week's edition of The Pennsylvania Law Weekly.

The next two weeks promise to be quite busy for me. I have two significant appellate briefs due--one in the Third Circuit on Monday, May 13, 2002 and the other in the Superior Court of Pennsylvania on Friday, May 17, 2002. My Legal Intelligencer column for May 2002, which will address the impact of technology on appellate litigation, is due to my editor on Thursday of this week. The Appellate Courts Committee that I co-chair is on Wednesday hosting at its luncheon meeting a Judge of the Superior Court of Pennsylvania. A very interesting prisoner's civil rights pro bono appeal that I briefed is being submitted for a decision in the Third Circuit tomorrow, and a ruling could come at any time thereafter. (Click here to see my brief in that case.) Two other appeals are lurking a bit further off in the distance but will soon require my attention.

In the news, if you are waiting with bated breath, as I am, for the remaining U.S. Supreme Court decisions from this Term, the Court does not return from its current recess until Monday, May 13, 2002. Two Third Circuit-related developments are reported in today's Legal Intelligencer. Former Third Circuit Judge Timothy K. Lewis has joined Schnader Harrison Segal & Lewis LLP as of counsel. (See the article here.) And it is reported that supporters of U.S. District Judge Eduardo Robreno of the Eastern District of Pennsylvania are now lobbying to have him nominated to fill the Third Circuit vacancy created by the untimely and very sad recent death of Judge Carol Los Mansmann.

And, finally for now, who are my favorite Seventh Circuit Judges? Richard A. Posner, Frank H. Easterbrook, and Terence T. Evans. They are great writers and great thinkers. Unfortunately, far too many lawyers are substandard writers. That's a theme I'm sure to touch on from time to time in the days to come.

Posted at 10:16 by Howard Bashman

WELCOME to day one of the Web's first(?) blog devoted to appellate litigation. I am Howard J. Bashman, and I work as a shareholder in the Philadelphia office of the law firm Buchanan Ingersoll Professional Corporation, where I chair its Appellate Group. In my spare time, I serve as co-chair of the Appellate Courts Committee of the Philadelphia Bar Association, and I write a monthly column on appellate developments for The Legal Intelligencer, Philadelphia's daily newspaper for lawyers. To read my online professional biography, simply click here.

How and why did I become an appellate lawyer, why am I beginning this weblog, and what are today's most interesting decisions from the U.S. Court of Appeals for the Third Circuit, the Pennsylvania state appellate courts, and my favorite Seventh Circuit Judges?

Check back later for the answers to these and other questions.

Posted at 09:35 by Howard Bashman

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