How Appealing

Sunday, June 30, 2002
UNDER WHAT? Newsweek magazine features the Pledge of Allegiance controversy as its cover story in its July 8, 2002 issue, which hits newsstands tomorrow. Both Stuart Taylor Jr. and George F. Will have contributed essays that are well worth a look.
Posted at 11:50 by Howard Bashman

Saturday, June 29, 2002
IN SUNDAY'S NEW YORK TIMES: Adam Liptak has a front page story in Sunday's New York Times about the trouble with the U.S. Court of Appeals for the Ninth Circuit. You can access the article here. Although Liptak, who interviewed me for the story, does not quote me directly, he does prominently mention the White Commission Report, which I believe I was the first to draw to his attention. The Commission examined whether the Ninth Circuit should be split into two separate circuits. You can access transcripts of the oral testimony provided to the Commission at this link. You can access the very interesting written submissions to the Commission -- including letters from U.S. Supreme Court Justices and other federal appellate judges -- at this link.
Posted at 22:48 by Howard Bashman

THANK YOU for making yesterday this Web site's third largest traffic day ever! (Update: Plus, today "How Appealing" received a permanent link on InstaPundit, which is deservedly the most popular blog of all. Thanks Glenn!)
Posted at 01:25 by Howard Bashman

$290 MILLION PUNITIVE DAMAGES AWARD AFFIRMED IN CALIFORNIA: Click here to access the decision issued Friday by the California Court of Appeals for the Fifth Appellate District in Fresno, California. The judgment is against Ford Motor Company in a case involving a Ford Bronco that overturned, causing the deaths of three people in the vehicle.
Posted at 01:02 by Howard Bashman

Friday, June 28, 2002
U.S. SUPREME COURT ROUND-UP FOR JUNE 27 & 28, 2002: The Supreme Court of the United States today declared the start of its traditional summer recess that lasts until the first Monday in October (Monday, October 7, 2002, that is), secure in the knowledge that while the Justices are now free to travel to exotic European locations to teach, or travel by luxury bus to hidden hamlets in out-of-the-way places here in the United States, the most important issues of our time -- such as racial preferences in public university admissions or the legality of the words "under God" in the Pledge of Allegiance -- will continue to reach the Court as surely as day follows night. So, as everyone's thoughts start to turn to summer vacation destinations -- I hear that the National Cowgirl Hall of Fame, featuring 2002 honoree Sandra Day O'Connor, is quite nice -- it's time to talk about urination, tying a prisoner to a hitching post in the hot summer sun, religious school vouchers, and meaningful judicial elections. Plus, today the Court issued two per curiam death penalty decisions and granted review in six new cases. So, take a deep breath, sit back, and let's have some fun as we detail the final two days before the Court's summer recess, starting with yesterday's four opinions in the Term's remaining argued cases.

1. When urine school, check your Fourth Amendment rights at the door. Although I can understand the special interest in yesterday's religious school voucher decision, I think that in the long run the most important Supreme Court ruling delivered yesterday will turn out to be the Court's 5-4 decision in Board of Ed., Pottawatomie Cty.v. Earls, No. 01-332 (U.S. June 27, 2002). Thanks to the decisive vote of Justice Stephen G. Breyer, public high school students who participate in so-called competitive extracurricular activities can have their participation conditioned on suspicionless drug testing. Yup, if you want to march in the band, belong to the Future Homemakers of America, the Future Farmers of America, the math team, or the choir, you now have to pee in a cup and test drug free. Instead of engaging in further urine-related puns or efforts to twist the County's name -- Pottawatomie -- into something that resembles "potty what to me?," let's turn to examine the actual ruling.

Justice Clarence Thomas wrote the majority opinion, in which the Chief Justice and Justices Scalia, Kennedy, and Breyer joined. So, thanks to Justice Breyer siding with the Court's more traditionally conservative Justices, we're on the verge of a boom-time in the industry that conducts urine testing. Justice Ginsburg wrote the principal dissent, in which Justices Stevens, O'Connor, and Souter joined. Justice Breyer wrote a short separate (yet potentially important) concurrence, and Justice O'Connor wrote a short separate dissent.

Justice Thomas's majority opinion, standing alone, suggests to me that soon high schools will be allowed to conduct suspicionless drug testing of all students, not just students participating in competitive extracurricular activities. (Does anyone know why these extracurricular activities are called "competitive"?) In Justice Breyer's concurrence, he says that one reason he finds this drug testing program lawful is that it allows students to opt-out by refraining from participation in the covered extracurricular activities. Thus, five votes may not exist to allow the testing of all students. But, I wouldn't be so sure. After all, kids who don't want to be tested could just opt out of school altogether, or they could opt out of drug usage. And then it's just one small additional step to drug testing everyone in society, which would itself be a very effective way of addressing the drug scourge, were it not (again) for the Fourth Amendment. If you don't want to be tested, you could just opt out of your United States citizenship and your right to reside in this nation. What makes this ruling the day's most important for me is that, as a result of this decision, countless school children will be desensitized to what the Fourth Amendment (at least in my view and in the views of four Justices) actually requires, which in this setting would be reasonable particularized suspicion.

In 1995, the Supreme Court upheld the lawfulness of a high school's suspicionless drug testing program that was limited to student athletes. As a result, Justice Ginsburg's dissent spent some time discussing how today's much broader drug testing program lacked the same persuasive rationale as the program at issue in 1995. She wrote:
At the margins, of course, no policy of random drug testing is perfectly tailored to the harms it seeks to address. The School District cites the dangers faced by members of the band, who must "perform extremely precise routines with heavy equipment and instruments in close proximity to other students," and by Future Farmers of America, who "are required to individually control and restrain animals as large as 1500 pounds." For its part, the United States acknowledges that "the linebacker faces a greater risk of serious injury if he takes the field under the influence of drugs than the drummer in the halftime band," but parries that "the risk of injury to a student who is under the influence of drugs while playing golf, cross country, or volleyball * * * is scarcely any greater than the risk of injury to a student . . . handling a 1500-pound steer (as [Future Farmers of America] members do) or working with cutlery or other sharp instruments (as [Future Homemakers of America] members do)." One can demur to the Government's view of the risks drug use poses to golfers, for golfers were surely as marginal among the linebackers, sprinters, and basketball players targeted for testing in Vernonia as steer-handlers are among the choristers, musicians, and academic-team members subject to urinalysis in Tecumseh. Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree.
And what explains Justice Breyer's vote in this case, many students heading to the bathroom with plastic cups in their hands want to know. Justice Breyer aims to have all of his judicial opinions written in a style that allows them to be understood by the typical high school student. That goal, however, wasn't being achieved. Perhaps he feared that illegal drugs were to blame?

In closing, allow me to reemphasize: drug use bad; disregarding the Fourth Amendment also bad.

(Update: George Washington University Law School Professor, and media darling, Jonathan Turley makes an egregious error in an op-ed piece about this decision published in Friday's edition of The Los Angeles Times. His commentary (which you can access here) incorrectly asserts that Justice Sandra Day O'Connor wrote Justice Breyer's concurring opinion. Why is this such a big mistake? Those two Justices look nothing alike, and Justice O'Connor dissented from this ruling!)

2. Vouching for the constitutionality of government scholarships for religious schools. Unlike many of my friends, I never seriously doubted the outcome of this case. As everyone knows by now, the Court ruled 5-4 in the day's lengthiest ruling, see Zelman v. Simmons-Harris, No. 00-1751 (U.S. June 27, 2002), that municipalities that provide tuition vouchers to parents for use at the educational institution of the parents' choice do not unconstitutionally endorse religion when it turns out that many of the vouchers are used for religious schools. Chief Justice Rehnquist wrote the majority opinion, in which Justices O'Connor, Scalia, Kennedy, and Thomas joined. Justices O'Connor and Thomas wrote concurring opinions. Dissenting were Justices Stevens, Souter, Ginsburg, and Breyer. Justice Stevens wrote a short dissenting opinion. Justices Souter and Breyer both wrote fairly long dissents.

To me, the most interesting feature of this ruling was Justice Thomas's concurring opinion. Justice Thomas, who has been unfairly criticized many times in the past as insensitive to the issues facing African-Americans, wrote a thoughtful and heartfelt concurrence to explain that education is the key to escaping poverty and school vouchers allow those in poverty to obtain the type of meaningful education that many poor inner-city schools fail to provide.

Whether the school religious voucher decision will have a huge impact on the United States remains to be seen, but I do not expect that it will.

3. An important victory for voters in States that elect judges. In a surprisingly close decision, the Supreme Court yesterday ruled 5-4 in Republican Party of Minnesota v. Kelly, No. 01-521 (U.S. June 27, 2002), that States which prohibit candidates for elective judicial office from announcing their "views on disputed legal or political issues" unconstitutionally impinge on the freedom of speech guaranteed by the First Amendment. Justice Scalia wrote the majority opinion, in which the Chief Justice and Justices O'Connor, Kennedy, and Thomas joined. Justices O'Connor and Kennedy also filed concurring opinions. Justice Ginsburg filed the principal dissent, in which Justices Stevens, Souter, and Breyer joined. Justice Stevens also wrote a short dissent of his own.

As I explained in my column published last month in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, the regulation that was at issue in this case represented a significant burden on the right of candidates for elected judicial office to share views on disputed legal and political issues that were essential to an informed electorate. Justice Scalia's majority opinion touches on nearly all of the points that I raised in my column. The four Justices who dissented really seemed to have missed the boat on this one, which is surprising given how those Justices do usually appreciate the overriding importance of the First Amendment's free speech guarantee.

4. Sometimes I feel like I've been tied to the hitching post. In a case whose facts never fail to remind me of the lyrics of a certain Allman Brothers Band classic, the Court ruled 6-3 that Alabama prison guards who tied a inmate to a hitching post for seven hours without providing water or bathroom breaks weren't entitled to qualified immunity at the summary judgment stage. (See here for a piece of artwork depicting a horse tied to a hitching post.) This case provides further proof that, just as you don't ever want to repaint a BMW to be sold in Alabama, you should also do everything in your power not to be imprisoned in Alabama.

Anyhow, the same six Justices who recently joined together to invalidate the execution of mentally retarded inmates held a brief reunion yesterday to reverse the dismissal of a prisoner's Eighth Amendment claims against the guards who tied him to the post for seven hours and then provided neither water nor bathroom breaks. Justice Stevens wrote the majority opinion in Hope v. Pelzer, No. 01-319 (U.S. June 27, 2002), in which Justices O'Connor, Kennedy, Souter, Ginsburg, and Breyer joined. Justice Thomas wrote the only dissent, in which the Chief Justice and Justice Scalia joined. In recognition of the fact that this was the day's least talked about ruling, I will stop talking about it right now.

Two death penalty per curiam decisions issued today: Before hopping on that proverbial bus outta town, the Justices today handed down two per curiam decisions in death penalty cases, and each went against the prisoner. (See here and here.) In so ruling, the Supreme Court got to spank both the Sixth Circuit and the Ninth Circuit, two favorite targets for reversals in recent years.

Review granted in six new cases. I will summarize these six grants just as soon as I determine the question presented in each case. I'm already halfway there. Update: Here are the questions presented in these six cases. 1. Whether Kentucky's "any willing provider" law, which requires each health maintenance organization (HMO) in the State to make available to its subscribers the services of any medical provider in its geographical region that agrees to the terms and conditions offered by the HMO, is saved from preemption as a law that "regulates insurance" under ERISA. 2. Whether a Maine statute providing for affordable prescription drugs is preempted by the Supremacy Clause or violates the dormant Commerce Clause. 3. Whether a federal law that requires the detention without bail of lawfully admitted aliens who are deportable from the United States because they have committed an aggravated felony violates the Due Process Clause of the Fifth Amendment. 4. Whether municipalities are subject to suit under the federal False Claims Act, which subjects defendants to treble damages. (The Court has previously ruled that States cannot be sued under that Act.) 5. Whether a conviction on federal criminal charges became "final" within the meaning of the federal habeas corpus statute one year after the court of appeals issued its mandate on direct appeal or one year after the time for filing a petition for a writ of certiorari expired. 6. Whether, under the Foreign Sovereign Immunities Act of 1976, a corporation is an "agency or instrumentality" of a foreign state if that state owns a majority of the shares of a corporate enterprise that in turn owns a majority of the shares of the corporation; and whether a corporation is an "agency or instrumentality" of a foreign state if that state owned a majority of the shares of the corporation at the time of the events giving rise to litigation, but the foreign state does not own a majority of those shares at the time that a plaintiff commences a suit against the corporation. (Worth noting: The Court's order granting review in this sixth case misspells the word "enterprise" as "enterpise." Oops!)

No summer recess for "How Appealing": As much fun as this blog has summarizing U.S. Supreme Court developments, all of the nation's other federal and state appellate courts continue with business as usual over the summer months. And, as we have seen this week, sometimes a lower appellate court can make as much if not more news than our nation's highest court. So, keep checking this blog regularly for all of the latest appellate court-related developments from across the nation throughout the summer.

Update: Now that the last of the Supreme Court's opinions in argued cases have issued, it's time for the major news outlets to publish their year-end summaries of the Court's big cases. Charles Lane, who covers the Court for The Washington Post, offers this summary of the year's developments. He and I spoke by phone on Friday, June 28, 2002 to exchange views about the past year at the Court, and I think his article, which ran on Sunday, June 30, 2002, turned out quite nicely. David G. Savage, who covers the Court for The Los Angeles Times, has written this year-end summary, also published on Sunday, June 30. Look for Linda Greenhouse's retrospective in The New York Times early next week. And, coming soon to "How Appealing," this blog's first-ever year-end U.S. Supreme Court wrap-up.
Posted at 22:35 by Howard Bashman

MORE PLEDGE NEWS: The Associated Press reports that Ninth Circuit Judge Alfred T. Goodwin said in an interview with the AP that he believes his ruling is correct and reasonable. Not much of a surprise there; judges rarely decide cases incorrectly on purpose. In other news, the U.S. Court of Appeals for the Eleventh Circuit heard oral argument today in another Pledge-related appeal. As an added bonus, the Eleventh Circuit case also involves a school-administered spanking (in Alabama, of course).

(Update: Saturday's edition of The Los Angeles Times contains this profile of the two Ninth Circuit judges whose votes declared the words "under God" to be unconstitutional.)
Posted at 20:00 by Howard Bashman

FIRST CIRCUIT REVERSES FALSE LIGHT INVASION OF PRIVACY AWARD AGAINST NEWSPAPER REPORTER: The U.S. Court of Appeals for the First Circuit today reversed a sizeable verdict in favor of the plaintiff on his claim for false light invasion of privacy brought against a reporter who was then on the staff of The New York Times. The claim was based on an article printed in that newspaper. You can access the decision here.
Posted at 16:43 by Howard Bashman

TENTH CIRCUIT ALLOWS COLUMBINE HIGH SCHOOL TO BAN "GOD IS LOVE" TILES: God and federal appellate courts are back in the news again. Yesterday the Denver, Colorado-based U.S. Court of Appeals for the Tenth Circuit ruled that Columbine High School did not violate anyone's First Amendment rights by refusing to post wall tiles stating "God is love" in a project to restore the school at which a horrendous school shooting occurred.

According to the Court, "If the District were required to be viewpoint neutral in this matter, the District would be required to post tiles with inflammatory and divisive statements, such as 'God is Hate,' once it allows tiles that say 'God is Love.'" You can access the ruling here.
Posted at 15:27 by Howard Bashman

U.S. SUPREME COURT STAYS ORDER REQUIRING INS HEARINGS TO BE OPEN: The Supreme Court of the United States this morning issued its final orders for this Term. The Court has granted review in six new cases, which I will summarize later today.

Most noteworthy, however, is the following order entered in a case in which the U.S. Court of Appeals for the Third Circuit refused the federal government's emergency request to stay a New Jersey federal district judge's decision that struck down the INS's blanket policy of secrecy over deportation hearings for immigrants rounded-up in the post-September 11th anti-terrorism sweeps:
The application for stay presented to Justice Souter and by him referred to the Court is granted, and it is ordered that the preliminary injunction entered by the United States District Court for the District of New Jersey on May 28, 2002, is stayed pending the final disposition of the governmentís appeal of that injunction to the United States Court of Appeals for the Third Circuit.
You can access the district court's ruling at this link. You can access at this link an earlier posting of mine about this dispute.
Posted at 11:50 by Howard Bashman

TEEN SEX: I managed to stay out of the recent blogger debates over teen sex that occurred several weeks back. But maybe I was just waiting for an appellate decision presenting the issue. According to today's edition of The Atlanta Journal-Constitution, the sexual activity of two Georgia teenagers will soon present the Supreme Court of Georgia (whose motto I still love) with an opportunity to declare Georgia's fornication statute unconstitutional. You can access the newspaper article here. Perhaps the suit should also include an equal protection claim; the newspaper reports that, after being found guilty in juvenile court, "The girl, identified in court papers as J.D., was sent to boot camp. The Clayton County boy, identified as J.M., also 16, was ordered to pay a fine and write an essay." On the other hand, if today's teens are anything like the ones I grew up with, many might prefer boot camp over having to write an essay.
Posted at 11:44 by Howard Bashman

PROF. VOLOKH ON JUDICIAL ELECTIONS: UCLA School of Law Professor Eugene Volokh (whose excellent blog you can access here) agrees with me that the majority reached the correct result in yesterday's U.S. Supreme Court decision that vindicated the free speech rights of candidates for elected judicial office. You can access here his essay published today at National Review Online. Don't fret; my summary of yesterday's final four U.S. Supreme Court rulings is coming soon.
Posted at 11:29 by Howard Bashman

EVERYONE'S BLAMING THE NINTH CIRCUIT FOR EVERYTHING: Thanks to the Ninth Circuit's having declared the Pledge of Allegiance unconstitutional, my U.S. Supreme Court round-up for June 27, 2002 will appear this evening.

YOU MUST BE KIDDING: Critics of judicial elections in Pennsylvania are unwilling to concede that yesterday's U.S. Supreme Court ruling that strikes down a prohibition on the speech of candidates for elected judicial office that is identical to a prohibition in effect in Pennsylvania invalidates Pennsylvania's provision. See this article from Friday's Legal Intelligencer. The Supreme Court's ruling is so clearly correct for all of the reasons stated in my Legal Intelligencer column from last month, which you can access here.
Posted at 01:00 by Howard Bashman

Thursday, June 27, 2002
APPLE PIE AND MOTHERHOOD STILL LAWFUL IN THE NINTH CIRCUIT: Yesterday I drove my car from home in the northwestern Philadelphia suburbs to Pittsburgh for my law firm's litigation department retreat. And, like any good appellate lawyer, I brought along my Blackberry satellite email device, which allows me to send and receive emails through my work email account even while I am on the road.

Upon arriving in Pittsburgh, I checked my emails. And there was one of those CNN Breaking News email bulletins that you can sign-up for on CNN's Web site. The email, dated 2:57 pm Eastern Daylight Time, read:
Federal appeals court rules Pledge of Allegiance unconstitutional because of words "under God," according to The Associated Press.
On first read, the information the email was communicating struck me as absurd. Had The Onion, perhaps, commandeered CNN's news alert email list? Of course, the email made me feel quite sorry that I wasn't in my office yesterday, as I certainly would have broken news of the Ninth Circuit's ruling way before CNN did. Next, however, I began to wonder why CNN's email didn't say which federal appellate court had issued the ruling. And what was the significance of "according to The Associated Press"? Was there some reason why CNN couldn't independently confirm the ruling.

As soon as I got to my hotel room, I switched on the cable television version of CNN. And, of course, the federal appellate court was precisely the one that I would have bet good money on as the court to issue such a ruling, the U.S. Court of Appeals for the Ninth Circuit. You can access the Ninth Circuit's opinion in Newdow v. U.S. Congress here.

Now, I don't want to be seen as implying that the Ninth Circuit never reaches the right result; to the contrary, it reaches the right result in most every case it decides. However, it decides a whole lot more cases than most other federal appellate courts, and when the Ninth Circuit -- with its especially large number of rather liberal judges -- issues a controversial decision, it can often be quite a doozy. My next reaction was to ask myself whether Judge Stephen Reinhardt wrote the opinion. As I have said here previously, he is one of the most liberal and most brilliant judges currently serving on the federal appellate courts. As it turns out, he didn't write the opinion, but he was one of the two judges in the majority. And, as the only active judge in the majority, Judge Reinhardt had the power to assign the opinion to the authoring judge, former Ninth Circuit Chief Judge Alfred T. Goodwin. Which is not to imply that Judge Goodwin didn't want to write this opinion -- if I were a federal appellate judge who believed that the Pledge of Allegiance was unconstitutional, I'd be champing at the bit to get the assignment to write the opinion. The panel assigned to the case also included Senior Circuit Judge Ferdinand F. Fernandez, who dissented from the panel's ruling. Senior Judge Goodwin is a Nixon appointee, Judge Reinhardt is a Carter appointee, and Senior Judge Fernandez is an appointee of the original President Bush.

Yesterday, the Ninth Circuit ruled that the phrase "under God" contained in the Pledge of Allegiance violated the First Amendment's Establishment Clause because the Pledge contains "an impermissible government endorsement of religion." The court also held that the Pledge unlawfully coerces school students to participate in an exercise with religious content. Finally, the court held that the Pledge lacks a secular purpose and could reasonably be seen as a governmental endorsement of religion.

This decision is easy to parody; it is easy to denounce. One of the most interesting aspects of yesterday's television coverage of the ruling was when reporters took to the street to interview the average person. Those interviews suggest to me that it would be quite amusing for television stations to take to the streets regularly to ask the people what they think about having the Constitution enforced in ways that are not favored by the majority. For example, we could ask the person on the street what he or she thinks about the Fourth Amendment when it is used to exclude evidence that was necessary to convict an actually guilty individual, or what he or she thinks about excluding the unconstitutionally coerced confession of someone who is guilty. The beauty of the Constitution is that it doesn't matter if the person on the street likes the consequences of the document's provisions, because various parts of the document exist to protect the most vulnerable and least popular.

What are my views on yesterday's ruling? First, I think that the decision further highlights the need for the U.S. Supreme Court to reconcile a number of seemingly conflicting decisions in the establishment clause area. Under some of those rulings -- in particular, Lemon v. Kurtzman, 403 U.S. 602 (1971) -- the Ninth Circuit's decision seems to be a reasonable if unusually bold application of the law. But a majority of the currently-serving Justices have expressed serious doubts about Lemon, and this case from the Ninth Circuit may provide an opportunity to discard a rotting Lemon once and for all. Yet under this existing law, the challenged phrase is objectionable on two grounds. First, the mention of "God" shows government endorsement of monotheism, as opposed to atheism or the belief in multiple higher beings. Second, the use of the word "under" could be understood as saying that the nation is subservient to God, which would be problematic in its own right.

On the other hand, jurists who believe that the only proper method of constitutional interpretation is to determine the drafters' original intent assert that the Establishment Clause sought to prohibit what its name suggests, the governmental establishment of an official religion. The First Amendment provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
According to the original intent view, the government was not prohibited from recognizing that this is a predominantly religious nation. Under this view, I think that the Pledge would pass muster, because the Pledge does not come close to establishing an official religion.

I am not at all surprised that the losing parties in the Ninth Circuit have declared their intent to seek rehearing en banc. It would have taken an incredible amount of restraint for the losing parties to take the case straight to the U.S. Supreme Court, even though, given the existence of a conflicting ruling from the Seventh Circuit (an opinion by Circuit Judge Frank H. Easterbrook, who is himself exceptionally brilliant and also one of the federal judiciary's best writers) and the public importance of the issue, U.S. Supreme Court review would be a near certainty. I think that enough votes will exist among all active Ninth Circuit judges to take the case en banc. The Ninth Circuit then assigns an eleven-judge en banc panel which consists of the Chief Judge and ten other active judges chosen at random. Thus, both Senior Circuit Judge Goodwin and Senior Circuit Judge Fernandez will be excluded from any en banc panel, and even Circuit Judge Reinhardt is not guaranteed a seat on the en banc panel unless he is randomly selected to serve on it.

(Update: Further research discloses that the answer to the question whether Senior Judges Goodwin and Fernandez will be excluded from the eleven-judge en banc panel is not as clear-cut as the Ninth Circuit's governing Local Rule would seem. You see, the Local Rule says that the en banc panel will consist only of active judges, while an advisory committee note to the Local Rule states that senior Ninth Circuit judges who were on the three-judge panel in a case that goes en banc can elect to be put into the pool of judges from which the en banc panel will be randomly chosen. And, in the past, the Ninth Circuit has applied the Local Rule in accordance with the advisory committee note. So, on further review, it appears that Senior Judges Goodwin and Fernandez will have the same chance as any non-recused active Ninth Circuit judge of being one of the other ten judges on the en banc panel if this case goes en banc.)

To me, the most audacious aspect of the Ninth Circuit's ruling was that it issued a day before the close of the U.S. Supreme Court's term, when the High Court's ruling on religious school vouchers was going to issue. Today, the High Court upheld the constitutionality of government-funded vouchers that pay tuition for parents to send their children to religious schools. Thus, students may not be able to say the Pledge of Allegiance in public schools, but if they live somewhere that provides government-funded school vouchers, they can go to a school on the government's dime where they can say the Pledge and countless other religiously-influenced things.

Finally, today Judge Goodwin stayed the panel's ruling pending disposition of any rehearing en banc petition. As this article from Friday's Washington Post explains, the stay order is essentially a formality.

Would it help things if the Ninth Circuit were split into two separate courts? Here's what Justices Anthony M. Kennedy (click here) and Antonin Scalia (click here and here) had to say about that several years ago.
Posted at 23:08 by Howard Bashman

BLUES BROTHERS -- PART 2: The amazingly great John P. Elwood (see this post, in the unlikely event you're saying "Who?") checked in via email this morning. First, he definitely is now working at the Office of the Solicitor General of the United States. Second, he reads this blog from time to time.

He writes: "A while back I had bookmarked your page, which I think is really invaluable and, despite your protestations, at least as good as my old Supreme Court updates." And later he characterizes "How Appealing" as "great reading." Well, the fact that he is being so unjustifiably kind to me is further proof that he is the best there ever was and the best there ever will be at this genre. He even managed to include in his email three or four of his clever Elwood-isms!

IN OTHER NEWS, Adam Liptak, who covers courts and the law for The New York Times, also reads this blog. Liptak, who once was a practicing attorney, is writing a story for tomorrow's paper about the Ninth Circuit and whether it is constantly wacky or only periodically so. Adam made it seem as though I gave him some useful information, so we'll see soon whether anything that I said was noteworthy enough to be quoted in tomorrow's Times. And what did I say? See immediately above for my take on yesterday's Ninth Circuit ruling on the constitutionality of the Pledge of Allegiance.
Posted at 22:54 by Howard Bashman

I'M BACK home in one piece from my trip to Pittsburgh, which is more than the Pledge of Allegiance can say about its recent trip to the U.S. Court of Appeals for the Ninth Circuit. I'll have a whole lot more to say about that decision shortly in posts that will appear above this one. My visit to Pittsburgh was wonderful. PNC Park is an amazing place to watch baseball. And, it was great to see so many of my colleagues all at once. A special thanks to one of my colleagues who was not only kind enough to get me a copy of the Ninth Circuit's Pledge opinion but also, as an added bonus, made sure that I had copies of two of today's most significant U.S. Supreme Court rulings. And, of course, I'll be talking about all four of today's Supreme Court opinions shortly right here, in a post that will appear way above this one. So, keep checking back for updates throughout the night.

(Update: It turns out that driving to Pittsburgh and back wasn't as senseless as I had feared. Most of the lawyers traveling back to Philadelphia were stranded in Pittsburgh until Friday morning due to bad thunderstorms covering most of Pennsylvania on Thursday afternoon and evening. I, by contrast, made it back home at 9:45 pm Thursday night. Although I never would have thought it possible, the portions of the highway infrastructure that I experienced leading to and from Pittsburgh were even worse than the highways leading into and out of Philadelphia!

(I must thank Zeus for central Pennsylvania's Revolution 103.7, which made driving through the most boring part of the five-hour commute bearable. I must also thank Lao Tze and the entire Taoist movement for the band SYSTEm Of A DOWn. It rocks!)
Posted at 22:15 by Howard Bashman

Wednesday, June 26, 2002
GO WEST, YOUNG MAN: I have a work-related retreat that will be taking me to Pittsburgh, Pennsylvania today through tomorrow evening (and to the lovely new PNC Park tonight to see the Pittsburgh Pirates play baseball against the Montreal Expos). As a result, the next entry in this blog is likely to occur on Thursday night, when I summarize that day's final four U.S. Supreme Court decisions for the Court's current Term.

Which four cases remain to be decided?

1. Zelman v. Simmons-Harris, No. 00-1751 (argued February 20, 2002). Question presented: Does the establishment clause of the U.S. Constitution prohibit Ohio's school choice program from authorizing parents to use tax-funded scholarships at any private school, whether religious or not? (You can access here the Sixth Circuit's ruling in the case.)

2. Board of Ed., Pottawatomie Cty.v. Earls, No. 01-332 (argued March 19, 2002). Question presented: Does it violate the Fourth Amendment's protection against unreasonable searches and seizures for a public school district to enforce a policy requiring students who wish to participate in extracurricular activities to submit to random, suspicionless urinalysis drug testing, if the policy is supported by no more than negligible evidence of drug abuse problems among students subject to the test? (You can access here the Tenth Circuit's ruling in the case.)

3. Republican Party of Minnesota v. Kelly, No. 01-521 (argued March 26, 2002). Question presented: Does the provision of Minnesota's Code of Judicial Conduct that prohibits candidates for elective judicial office from announcing their "views on disputed legal or political issues" unconstitutionally impinge on free speech as guaranteed by First and Fourteenth Amendments? (You can access here the most recent installment of my monthly appellate column, which took an in-depth look at this case. You can access here the Eighth Circuit's ruling in the case.)

4. Hope v. Pelzer, No. 01-319 (argued April 17, 2002). Question presented: Are state correctional officers entitled to qualified immunity for subjecting inmates to prolonged, punitive restraint under circumstances that are obviously inconsistent with constitutional principles governing the necessity for and the duration of restraint articulated by clearly established prior law, even though the precise method of restraint was not addressed by such prior rulings? (You can access here the Eleventh Circuit's ruling in the case.)
Posted at 08:32 by Howard Bashman

IN TODAY'S NEWSPAPERS: Both The Washington Post and The New York Times offer coverage today of the oral argument that occurred yesterday in the U.S. Court of Appeals for the Fourth Circuit concerning whether the so-called second American Taliban, whom the U.S. military is holding incommunicado in the Norfolk, Virginia Naval Station Brig, should have the right to meet with a federal public defender. You can access The Post's report here; you can access The Times's report here. In related news, The NYTimes reports that Zacarias Moussaoui almost pleaded guilty by accident yesterday. In totally unrelated news, yesterday the House of Representatives passed a new ban on virtual child pornography -- images that appear to, but in fact do not, depict a minor engaging in sexually explicit conduct. According to this report from Declan McCullagh, the new ban may suffer from the same flaws that led the U.S. Supreme Court to strike down the prior law.
Posted at 07:54 by Howard Bashman

Tuesday, June 25, 2002
BLUES BROTHERS: Charles Lane, who covers the U.S. Supreme Court for The Washington Post, is more than just an excellent reporter; he is also a very nice guy. Today he contacted me by email, and this afternoon we spoke on the telephone for half an hour about this blog and the U.S. Supreme Court. Somehow I managed to refrain from telling him more than once that I wanted his job. In response, one of the many kind things that Mr. Lane had to say was that "How Appealing" reminded him of the Supreme Court Reports that attorney John P. Elwood used to write.

On that last point, however, I must beg to differ. Try as I may, "How Appealing" simply can't even come close to approaching the brilliance of Elwood's Supreme Court Reports. Indeed, the main advantage that "How Appealing" now has going for it is that the U.S. Department of Justice has clamped a cone of silence over Elwood while he is serving as Counselor to Michael Chertoff, the Assistant Attorney General for the DOJ's Criminal Division. (Update: An email advises that John is now an Assistant to the Solicitor General of the United States, which, if true, simply provides one more reason to envy him.) Still don't believe me? Well, then you should click here and/or here to see John Elwood's brilliance for yourself. Now if only John Elwood had a blog -- perhaps one of those "anonymous" blogs that so many lawyers seem to be resorting to. So, while the mystery of who's reading this site from The Washington Post's Internet domain is now at least partially solved, the mystery as to who's reading this site from The New York Times's Internet domain lives on.

Genie Tyburski is one of the true pioneers at the intersection of the law and the Internet. She runs a Web site known as The Virtual Chase, which, since 1996, has assisted legal professionals in conducting research on the Internet. The site is sponsored by the law firm of Ballard Spahr Andrews & Ingersoll, LLP. Today, The Virtual Chase has this to say about "How Appealing":
A blog by attorney Howard J. Bashman deserves mention. He highlights issues pertaining to appellate litigation. Current entries include information about a recent Third Circuit opinion on police misconduct and summaries of the current day's U.S. Supreme Court decisions. If you prefer reading Bashman via a newsreader, here's the RSS/XML address.
Thanks, Genie, for finding your way here, and especially for recommending "How Appealing" to your site's many readers.
Posted at 22:47 by Howard Bashman

FOURTH CIRCUIT HEARS ORAL ARGUMENT ABOUT ATTORNEY ACCESS TO SECOND AMERICAN TALIBAN: The U.S. Court of Appeals for the Fourth Circuit heard oral argument today about whether the so-called second American Taliban, whom the U.S. military is holding incommunicado in the Norfolk, Virginia Naval Station Brig, should have the right to meet with a federal public defender. The Associated Press offers this report.
Posted at 19:25 by Howard Bashman

COLORADO SUPREME COURT INVALIDATES RELEASE OF YOUTH'S CLAIMS IN SKIING INJURY CASE: The Supreme Court of Colorado yesterday held that a parent cannot release a minor's prospective claims for negligence against a skiing facility. You can access the court's ruling here.
Posted at 16:43 by Howard Bashman

TIPPING POINT: A divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has today reinstated Suzuki Motor Corporation's product disparagement claims against the Consumers Union of United States, which publishes Consumer Reports magazine. You can access the Ninth Circuit's ruling here. Judge Warren J. Ferguson dissents in an opinion that begins: "By failing to apply the full procedural protections afforded by the First Amendment, the majority intrudes on the field of free expression in two of its most important contexts -- consumer protection and public safety." The dissent also cites a law review article co-authored by UCLA School of Law Professor Eugene Volokh, whose fine blog you can access here.
Posted at 13:54 by Howard Bashman

POSSE COMITATUS ACT: I mentioned a few weeks back, in my hugely popular "No tank you" post, that we might soon be hearing more about the Posse Comitatus Act. And now we have, courtesy of this op-ed that appears in today's Washington Post.
Posted at 13:11 by Howard Bashman

THE JUDICIAL CONFIRMATION SPOTLIGHT SHIFTS: Today's Washington Post reports on the upcoming Senate Judiciary Committee hearing for Fourth Circuit nominee, and current U.S. District Judge, Dennis W. Shedd. You can access the Post's report here.

TOO OLD FOR BENEFITS?: The Supreme Court of California ruled yesterday that California law does not prohibit employers from discriminating against older workers when awarding job benefits. You can access the ruling here.
Posted at 08:45 by Howard Bashman

Monday, June 24, 2002
U.S. SUPREME COURT ROUND-UP FOR JUNE 24, 2002: Today was one of those rare days that make being a U.S. Supreme Court-watcher totally worthwhile. The Court today decided two very significant criminal cases, both involving the respective roles of the trial judge and the jury in sentencing a convicted criminal. The day's most noteworthy case declared unconstitutional the death penalty sentencing procedures of some nine States that require judges, rather than juries, to find the existence of facts essential to the imposition of the death penalty. As I will discuss, this ruling was hardly unexpected, but the press has managed to greatly exaggerate the decision's likely consequences. The day's second most noteworthy case presented a closely-related issue: whether the trial judge or a jury must decide facts that, if established, raise the mandatory minimum sentence for a crime. In this second case, the Court ruled 5-4 that judges can keep deciding such facts, although no single rationale in support of that result garnered a majority of Justices. The most shocking aspect of the result in this second case was that Justice Antonin Scalia offered no explanation whatsoever for why he had abandoned the views to which he had subscribed by joining most of Justice Clarence Thomas's concurring opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000), and instead sided with the majority in today's case. It's rare that Justice Scalia gets to be the swing vote as he was in this second case; at least Justice Sandra Day O'Connor, who normally occupies that role, typically provides a short statement of why she joined one outcome over the other. The day's other two opinions in argued cases, which I will summarize below, were much less noteworthy. Only really interesting cases remain to be announced this Thursday, June 27, 2002, when the Court will decide the remaining four argued cases from this Term. Finally, the Court today issued a per curiam opinion in a case from a Louisiana state court, summarily affirmed what appears to have been a redistricting challenge involving West Virginia, and granted review of three new cases. And now, on to the details!

Comprehending Apprendi: The two most noteworthy decisions issued today both required the Court to examine the limits of its decision issued two years ago this Wednesday in Apprendi v. New Jersey. Charles C. Apprendi, Jr. fired several bullets into the home of an African-American family that had moved into a previously all-white neighborhood in Vineland, New Jersey. Upon being arrested, he admitted that he fired the shots because the residents of the dwelling were black. Apprendi pled guilty to the state criminal charge of possessing a firearm for an unlawful purpose. That charge carried a maximum sentence of ten years' imprisonment. In sentencing Apprendi, the state court trial judge concluded after a hearing that the crime was motivated by racial bias. Under New Jersey law, this finding of motivation allowed the trial judge to increase Apprendi's sentence by ten years beyond the original maximum. The trial judge sentenced Apprendi to serve twelve years in prison based on the racial bias finding. Apprendi appealed all the way to the U.S. Supreme Court, which held by a 5-4 vote that the Constitution requires that any fact which increases the maximum penalty for a crime other than the existence of a prior conviction must be submitted to a jury and proved beyond a reasonable doubt. Because, under New Jersey law, the finding of a racially-biased motivation was neither submitted to a jury nor proved beyond a reasonable doubt, the Supreme Court set aside Apprendi's sentence as unconstitutional.

Almost as noteworthy as Apprendi's holding was the line-up of Justices that produced it. Justice Stevens wrote the majority opinion, in which Justices Scalia, Souter, Thomas and Ginsburg joined. Justice Thomas also wrote a lengthy concurring opinion, in which Justice Scalia largely joined, suggesting that the Court's decision would also likely require juries to decide facts that increased mandatory minimum sentences. The Chief Justice and Justices O'Connor, Kennedy and Breyer dissented from Apprendi's holding. It's no exaggeration to say that Apprendi has created a great deal of work for federal and state courts, as well as the U.S. Supreme Court. Just over one month ago, the Supreme Court in United States v. Cotton squelched the hopes of many criminal defendants whose lawyers had failed to make timely Apprendi-type objections before the Court's Apprendi decision issued in 2000. (Click here to see my summary of the Court's ruling last month in Cotton.) Today, the Court was confronted with having to decide both how Apprendi applies when the trial judge must find facts necessary to impose the death penalty and how the decision applies when the trial judge finds facts that increase the mandatory minimum sentence.

1. What's an extra two years when compared to death? In a decision that should have caught few by surprise, the Court today ruled (6-1)-2 that defendants facing the death penalty are entitled to have juries determine beyond a reasonable doubt the existence of all facts necessary to the imposition of a death sentence. See Ring v. Arizona, No. 01-488 (U.S. June 24, 2002). Justice Ruth Bader Ginsburg wrote the majority opinion, in which Justices Stevens, Scalia, Kennedy, Souter and Thomas joined. As the final paragraph of Justice Ginsburg's well-written opinion explains (okay, I admit it's redundant to say that a Justice Ginsburg opinion is well-written): "The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death."

Justice Breyer concurred in the judgment, explaining that while he still thinks that Apprendi was wrongly decided, "death is different," and so juries should be required to decide facts necessary to impose the death penalty. Justice Breyer's opinion concurring in the judgment can be read to say that, personally, he's no big fan of the death penalty. Justice Kennedy, who dissented from the ruling in Apprendi, joined the majority opinion and wrote a short concurrence in which he said that he is willing to accept Apprendi as the law of the land. (You see, unlike the rest of us who have no choice in the matter, U.S. Supreme Court Justices don't have to accept the law of the land if they don't like it. More about this in a moment.) Justice Scalia also wrote a short concurring opinion, in which Justice Thomas joined, to resume the needling of Justice Breyer that Justice Scalia began in his concurring opinion in Apprendi. Today Justice Scalia at the close of his concurrence urged Justice Breyer to "buy a ticket to Apprendi-land." (As my summary of the next case observes, sometimes Justice Scalia has been known to go missing in Apprendi-land himself.) Finally, Justice O'Connor wrote a dissenting opinion in which the Chief Justice joined. Although Justice O'Connor predicted today's result when she dissented from the Apprendi ruling (which perhaps made her a bit more honest than the Apprendi majority about the consequences of its ruling), she remains unwilling to accept Apprendi as a lawful result and thus refuses to sign-on to today's Apprendi-driven consequences.

So, the Court declares the manner of capital sentencing in five states unconstitutional and casts serious doubt on the capital sentencing schemes in use in four other states. Nearly 700 inmates are on death row in these states, presumably thanks to procedures that are now unconstitutional. The press today had a field day with this information, suggesting that within weeks the death rows in these nine states would be empty except for the sagebrush blowing on through. But, as Justice O'Connor's dissenting opinion correctly observed, most of these prisoners will have no realistic chance at obtaining a shot at a resentencing by a jury:
I believe many of these challenges will ultimately be unsuccessful, either because the prisoners will be unable to satisfy the standards of harmless error or plain error review, or because, having completed their direct appeals, they will be barred from taking advantage of today's holding on federal collateral review.
Certainly the courts will now become even more clogged with suits by death row inmates seeking to grasp onto Ring, but I think that Justice O'Connor has correctly predicted the outcome of those actions, as the Court's ruling last month in Cotton exemplifies.

2. Apprendi's mantra: Increased mandatory minimum -- good; increased maximum sentence -- bad. The outer limits of agreement among the five-Justice majority that produced Apprendi were exposed in today's second most noteworthy decision, the Court's ruling in Harris v. United States, No. 00-10666 (U.S. June 24, 2002). I'll be the first to admit that the holding of Apprendi did not mandate any particular outcome in Harris. Apprendi held that facts other than prior criminal history that expose the defendant to a sentence beyond the statutory maximum for the crime of conviction must be submitted to the jury and proved beyond a reasonable doubt. The issue in Harris was whether facts that increase the statutory minimum sentence likewise must be submitted to the jury and proved beyond a reasonable doubt. The Court today answered that question "no" by a 5-4 margin that lacked a majority rationale. Justice Kennedy wrote the principal opinion, in which the Chief Justice and Justices O'Connor and Scalia joined in full. Justice O'Connor wrote a short concurring opinion in which she explained that even if she accepted Apprendi as correct, she would still have joined Justice Kennedy's opinion. Justice Breyer wrote an opinion concurring in part and concurring in the judgment in part, and Justice Breyer's opinion certainly deserves (and will receive, below) discussion. Justice Thomas wrote a fine dissenting opinion in which Justices Stevens, Souter and Ginsburg joined.

Justice Kennedy's opinion strikes me as a very practical response to the mayhem that a contrary ruling in this case would have produced. It is a regular feature of federal and state sentencing law to have the judge find facts that increase a convicted criminal's prison sentence within the range that the legislature has prescribed. To hold that every increase in the allowed sentencing range (or nearly every increase except the existence of prior convictions) must be charged and presented to the jury would really have caused Apprendi to be a huge monkey-wrench thrown into the works of federal and state sentencing schemes. So, I personally don't find this ruling to be much of a surprise. Nor do I join with the majority of Justices (Stevens, Souter, Thomas, Ginsburg, and Breyer) who express the belief that Apprendi requires juries to find facts that increase a mandatory minimum sentence. (Justice Breyer concurs in the judgment by expressing his complete disagreement with Apprendi, which allows him to avoid applying it to facts that increase mandatory minimum setences. Looks as though three solid votes currently exist to overrule Apprendi. Oh, and by the way, just as Justice Breyer doesn't seem to like the death penalty (see his opinion concurring in the judgment in Ring), he really doesn't like mandatory minimum sentences, his opinion in Harris makes clear.)

What I do find surprising, however, is that Justice Scalia -- with no explanation offered whatsoever -- joined in Justice Kennedy's entire opinion. Just two years ago in Apprendi, Justice Scalia joined most of Justice Thomas's concurring opinion that provided the groundwork for Justice Thomas's dissent today. Now maybe someone much smarter than me can explain that when Justice Scalia joined only two-thirds of Justice Thomas's concurring opinion in Apprendi, it was clear how Justice Scalia would vote in a case such as Harris. But I think that even the parts of Justice Thomas's concurring opinion in Apprendi that Justice Scalia did join would have required Justice Scalia to vote with Justice Thomas in Harris. Did Justice Scalia change his mind about this case, and if so why? We don't have any insight whatsoever, as Justice Scalia failed to issue any explanation today for why he voted as he did in this case. His ticket to Apprendi-land certainly did not place him at the same destination as the other four Justices who joined him in the majority in that case.

To summarize, the result of Harris was not unexpected. Justice Scalia's vote, however, was both unexpected and unexplained, which of course will allow law professors everywhere to begin writing law review articles on what exactly happened here.

3. Before pleading guilty, the Ninth Circuit genie grants you three wishes. Well, not quite, but the U.S. Court of Appeals for the Ninth Circuit had ruled in the decision that gave rise to the Supreme Court's opinion today in United States v. Ruiz, No. 01-595 (U.S. June 24, 2002), that defendants charged with a crime were entitled to receive from the prosecution impeachment information relating to informants and other government witnesses before deciding whether to plead guilty. If that Ninth Circuit ruling strikes you as absurd, you are in good company, as the Supreme Court today reversed by a 9-0 vote. Justice Breyer wrote the majority opinion, which was so sound that even Justice Scalia was not goaded into making any separate comment.

4. And, in today's final opinion: In a case that presented the question whether the NLRB may impose liability on an employer for filing a losing retaliatory lawsuit even if the employer could show the suit was not objectively baseless, the Court held that the NLRB's standard for imposing liability violates the employer's First Amendment right to petition. If this decision interests you (sorry, but it doesn't interest me), you can access it here.

Even in Louisiana you can't just bust into someone's home to make an arrest absent exigent circumstances: In a per curiam decision issued today, the Court demonstrated that at least one intermediate state appellate court in Louisiana has a thing or two to learn about the Fourth Amendment.

Cert. granted in three cases: One of these three cases could prove to be next Term's Eleventh Amendment blockbuster, as the case presents the question whether the family medical care provision of the Family and Medical Leave Act of 1993 is a proper exercise of Congress's power under Section 5 of the Fourteenth Amendment, thereby constituting a valid exercise of congressional power to abrogate the States' Eleventh Amendment immunity from suit by individuals. A second case asks whether a referendum to stay the effectiveness of a lawfully approved site plan for low-income housing violates the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment and the Fair Housing Act. The final case presents the question whether a prepetition settlement of all tort claims against a debtor creates a novation, releasing the debtor from non-dischargeability claims after the debtor files for bankruptcy.

Time to prognosticate? With four opinions left to issue, it's time again to guess who is the likely author of the majority opinion in each case. Only one case remains from the Court's February session -- the religious school voucher case -- and neither Justice Scalia nor Justice Kennedy has written an opinion from that session. I'm guessing Justice Kennedy has that decision. Two decisions remain pending from March -- high school drug testing and the free speech rights of candidates for elected judicial office. Justice Thomas is the only Justice who has not yet written a majority opinion from that session. I'm guessing he has the free speech case, which may be good news for the outcome I am predicting. Finally, only one decision remains from the April session, involving whether Alabama prison guards who tied an inmate to a hitching-post are entitled to qualified immunity. Neither Justice Stevens nor Justice Thomas has written a majority opinion from that session. Your guess is as good as mine on this one.

And that concludes tonight's U.S. Supreme Court round-up.
Posted at 22:47 by Howard Bashman

COUNTER PRODUCTIVE: Time for a few site-related notes. I've recently switched to a counter that publicly discloses the number of page visits that "How Appealing" receives. You can view it at the bottom of my links list on the left-hand column of this page. The counter that I previously used disclosed nothing publicly. There's no reason not to let you see how many others are visiting here. In fact, making the counter number publicly available might even help me to accept how this endeavor has become so much more popular than I had ever imagined it would.

While my page visit numbers are now public, I have decided against making the rest of my counter's information public. What other information is there? Well, as you may know from visiting totally open counters on the pages of other bloggers, a counter captures the visitor's Internet Protocol address (essentially a string of four numbers, separated by three periods, such as and often can translate that address into the domain name of a particular organization. For example, at 7:39:25 pm tonight, "How Appealing" received a visit from the domain of my former law firm, "" To make the IP addresses and, in many instances, the domain names of all visitors to "How Appealing" publicly available strikes me as too intrusive. So, I won't be making my counter fully public. But now you do at least have access to the total number of page visits that "How Appealing" receives.

On a related note, some law bloggers have lamented that the Web sites of large law firms receive hardly any outside traffic while blogs that manage to capture a readership can receive over 15,000 page visits in a month. I'm not sure that it's fair to compare a law firm's Web site, which exists principally to advertise, with a blog such as this, which exists purely to provide information and commentary. Can many large law firm Web sites be made more interesting? Unquestionably yes. Can those Web sites manage to capture the readership of a halfway decent law blog? Probably not, for many reasons that are far too involved to state here.

In other site related news, over this past weekend I updated the list of blogs featured on the left-hand column of this page. New entries include N.Z. Bear, law professor Jeff Cooper, and Tony Pierce.
Posted at 21:52 by Howard Bashman

THIRD CIRCUIT REINSTATES POLICE OFFICERS' CONSPIRACY CONVICTIONS: Today the U.S. Court of Appeals for the Third Circuit reinstated the criminal conspiracy convictions of five former Orange, New Jersey police officers whose mistreatment of a suspect believed to have murdered one of their colleagues resulted in the suspect's death. You can access the court's opinion here. In fact, the suspect was not involved in the crime, and the person who had murdered the police officer was later apprehended.
Posted at 15:53 by Howard Bashman

UPDATE: The Supreme Court of the United States today decided four of the pending eight argued cases and will return on Thursday, June 27, 2002 to announce decisions in the remaining four cases. You can access my recent summary of these eight cases here. The Court today decided cases 3, 5, 7, and 8 listed in my summary.

The Court has saved until Thursday its decisions on: (a) the constitutionality of government-funded vouchers for religious schools; (b) the constitutionality of suspicionless drug testing of public high school students; (c) the scope of free speech rights of candidates for elected judicial office; and (d) whether Alabama prison guards who handcuffed an inmate to a hitching post for seven hours are entitled to qualified immunity.

Tonight "How Appealing" will offer a complete summary of today's opinions and other newsworthy developments at the Court.
Posted at 11:01 by Howard Bashman

Sunday, June 23, 2002
UNTRUSTWORTHY EYEWITNESSES AND UNTRUSTWORTHY CONFESSIONS: An "Ideas and Trends" piece in today's Week in Review section of The New York Times reminds us that eyewitness testimony -- which many people think is the most reliable type of evidence -- is often not very reliable at all. You can access the report here. The Atlantic Monthly, in its July/August double issue (which also contains an excellent article written by William Langewiesche about the arduous work to dismantle the remains of the World Trade Center buildings), contains an article that is similarly critical of eyewitness identifications. The article, which you can access here, further explains that even the confession of someone charged with a crime cannot always be trusted. The article suggests that authorities videotape their interrogations of suspects and that police line-ups be conducted differently.
Posted at 17:03 by Howard Bashman

IN TODAY'S NEWSPAPERS: Today's edition of The New York Times offers this report about how, in the war on terror, "two Americans are being held in military brigs without access to lawyers, while two foreigners accused of terrorist activities are being tried in federal court with the full range of protections usually accorded to Americans." The article includes quotes from law professors. Today's edition of The Los Angeles Times offers this report about whether the Supreme Court's ruling on Thursday barring the execution of the mentally retarded will be the start of an anti-death penalty trend at the Court.
Posted at 11:36 by Howard Bashman

Saturday, June 22, 2002
WHAT QUESTIONS ARE PRESENTED IN THE EIGHT SOON-TO-BE-DECIDED U.S. SUPREME COURT CASES?: With less than one week to go before the start of its summer recess, the Supreme Court of the United States has eight argued cases in which opinions remain to be announced. Can you recite the issues that all eight of those cases present? Unless you are a Justice or law clerk serving on the Court or a reporter covering the Court, chances are you cannot. But thanks to this posting, now you will be able to answer that question. Here is a list of the questions presented in the eight argued cases that the Court is expected to decide this upcoming week. The list begins with the cases argued longest ago and ends with the cases argued most recently.
1. Zelman v. Simmons-Harris, No. 00-1751 (argued February 20, 2002). Question presented: Does the establishment clause of the U.S. Constitution prohibit Ohio's school choice program from authorizing parents to use tax-funded scholarships at any private school, whether religious or not? (You can access here the Sixth Circuit's ruling in the case.)

2. Board of Ed., Pottawatomie Cty.v. Earls, No. 01-332 (argued March 19, 2002). Question presented: Does it violate the Fourth Amendment's protection against unreasonable searches and seizures for a public school district to enforce a policy requiring students who wish to participate in extracurricular activities to submit to random, suspicionless urinalysis drug testing, if the policy is supported by no more than negligible evidence of drug abuse problems among students subject to the test? (You can access here the Tenth Circuit's ruling in the case.)

3. Harris v. United States, No. 01-10666 (argued March 25, 2002). Question presented: Given that a finding of "brandishing" of a gun as used in 18 U.S.C. section 924(c)(1)(A), which prohibits the carrying a handgun in relation to a drug trafficking offense, results in an increased mandatory minimum sentence, must the fact of "brandishing" be alleged in the indictment and proved beyond a reasonable doubt? (You can access here the Fourth Circuit's ruling in the case.)

4. Republican Party of Minnesota v. Kelly, No. 01-521 (argued March 26, 2002). Question presented: Does the provision of Minnesota's Code of Judicial Conduct that prohibits candidates for elective judicial office from announcing their "views on disputed legal or political issues" unconstitutionally impinge on free speech as guaranteed by First and Fourteenth Amendments? (You can access here the most recent installment of my monthly appellate column, which took an in-depth look at this case. You can access here the Eighth Circuit's ruling in the case.)

5. BE&K Construction Co. v. National Labor Relations Board, No. 01-518 (argued April 16, 2002). Question presented: Did the Sixth Circuit err in holding that the NLRB may impose liability on an employer for filing a losing retaliatory lawsuit even if the employer could show the suit was not objectively baseless? (You can access here the Sixth Circuit's ruling in the case.)

6. Hope v. Pelzer, No. 01-319 (argued April 17, 2002). Question presented: Are state correctional officers entitled to qualified immunity for subjecting inmates to prolonged, punitive restraint under circumstances that are obviously inconsistent with constitutional principles governing the necessity for and the duration of restraint articulated by clearly established prior law, even though the precise method of restraint was not addressed by such prior rulings? (You can access here the Eleventh Circuit's ruling in the case.)

7. Ring v. Arizona, No. 01-488 (argued April 22, 2002). Question presented: Should Walton v. Arizona, 497 U.S. 639 (1990), be overruled in light of the Supreme Court's subsequent holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), making it an unconstitutional violation of a defendant's Sixth Amendment right to a jury trial for a judge to consider in a capital sentencing hearing aggravating factors that the jury did not address at trial? (You can access here the Supreme Court of Arizona's ruling in the case.)

8. United States v. Ruiz, No. 01-595 (argued April 24, 2002). Questions presented: Whether, before pleading guilty, a criminal defendant has a constitutional right to obtain exculpatory information, including impeachment material, from the government and, if so, whether that right may be waived through a plea agreement? (You can access here the Ninth Circuit's ruling in the case.)
In addition to this preview of the eight cases in which the U.S. Supreme Court will announce opinions next week, "How Appealing" will of course provide a complete nightly round-up on each day that decisions have issued.
Posted at 23:16 by Howard Bashman

EIGHTH CIRCUIT REJECTS DISPUTE OVER CO-ED BATHROOMS: Still playing catch-up on developments from the two days I was on vacation with the family. The U.S. Court of Appeals for the Eighth Circuit ruled this past Thursday that a federal trial court properly dismissed the claims of a female school teacher in Minneapolis alleging that the school district discriminated against her on the basis of her sex and her religion by allowing a transgendered coworker to use the women's faculty restroom. You can access the court's per curiam decision (the panel consisted of Chief Judge Hansen and Circuit Judges Fagg and Bowman) at this link. The panel gave the following recitation of the facts:
David Nielsen began working for the school district in 1969. Nearly thirty years later, in early 1998, Nielsen informed school administration that he was transgendered, that is, a person who identifies with and adopts the gender identity of a member of the other biological sex. Nielsen informed administration he would "transition from male to female" and be known as Debra Davis in the workplace. To plan for the transition, the school district collaborated with Davis, legal counsel, the parent teacher association, students' parents, and psychologists. Cruzan asked whether Davis would be allowed to use the school's women's restrooms, and administration informed her other arrangements would be made. Later, legal counsel informed the school that under the Minnesota Human Rights Act (MHRA), which prohibits discrimination on the basis of a person's "self-image or identity not traditionally associated with one's biological maleness or femaleness," Minn. Stat. section 363.01 subd. 45 (1998), Davis had the right to use the women's restroom. Thus, after Davis's transition in the spring of 1998, the school district permitted Davis to use the women's faculty restroom.
After the plaintiff encountered Davis leaving a stall in the women's bathroom, the plaintiff objected to the school's principal and then later sued asserting claims of religious discrimination and hostile work environment sex discrimination.

Upon rejecting the plaintiff's claims on the merits, the appellate panel next turned to reject the plaintiff's argument that her case should have been assigned to a female federal district judge:
Cruzan argues it is an abuse of the summary judgment procedure for a male judge to decide that reasonable women could not find their working environment is abusive or hostile when they must share bathroom facilities with a coworker who self-identifies as female, but who may be biologically male. No case law supports Cruzanís assertion, however. Judges routinely decide hostile environment sexual harassment cases involving plaintiffs of the opposite sex.
Posted at 19:41 by Howard Bashman

TONIGHT ON C-SPAN'S "AMERICA AND THE COURTS": On C-SPAN's wonderful program "America and the Courts," which is scheduled to air at 7 p.m. eastern time tonight, you can watch "a rally in support of President Bush's judicial nominees, followed by Justice Stephen Breyer discussing reasons for optimism in today's world." One reason for Justice Breyer to feel optimistic -- the Court's summer recess will begin in less than one week from now. Sometime next week, C-SPAN will provide online access to the program at this link.
Posted at 11:35 by Howard Bashman

IN SATURDAY'S NEWSPAPERS: Today's edition of The New York Times contains a report by U.S. Supreme Court correspondent Linda Greenhouse explaining that the Court's very recent decision prohibiting the execution of mentally retarded individuals may not herald a new era of even more stringent death penalty restrictions. You can access the report here. Separately, UCLA School of Law Visiting Professor Stuart Banner has an op-ed piece in today's NY Times explaining that "[h]istory shows that public opposition to capital punishment vacillates over time." So, according to Professor Banner, someday in the not too distant future the Court could reverse itself again and return to its original position that executing the mentally retarded does not constitute cruel and unusual punishment.

The Washington Post joins The NY Times in reporting that the U.S. Department of Justice has sought U.S. Supreme Court review of the Third Circuit's refusal to uphold the INS's rule providing for the closure of all deportation hearings involving illegal immigrants rounded-up in the federal government's post September 11th antiterrorism sweeps. The government's petition will first be considered by Justice David H. Souter, who serves as the Circuit Justice for the Third Circuit. You can access the Post's article here; you can access the Times's article here.

An op-ed in today's Washington Post suggests that Justice Anthony M. Kennedy should take a ride on a bus. The op-ed piece makes no mention of the bus that Justice Clarence Thomas owns. My only comment is that op-ed pieces criticizing rulings from this past Monday would have seemed so much more timely had they run before yesterday's decisions issued.
Posted at 11:10 by Howard Bashman

Friday, June 21, 2002
U.S. SUPREME COURT ROUND-UP FOR JUNE 20, 2002: Yesterday the Supreme Court of the United States announced six opinions in argued cases, leaving just eight argued cases left to decide with one week to go before the Court's summer recess. The Court is due to announce opinions next on Monday, June 24, 2002. Opinions in the eight remaining cases could all be announced then; if not, the Court will be back again sometime later next week to announce the balance of its opinions. Yesterday's decisions demonstrated for the second time in two weeks the risks inherent in relying on the Court's common practice of assigning at least one majority opinion to each Justice per sitting, as either Justice Scalia or Justice Kennedy will have missed out on a majority opinion from the February 2002 sitting. The other (probably Justice Kennedy) will have the pleasure of announcing the result in the long-awaited religious school vouchers case, which is now the oldest outstanding undecided case (a distinction it assumed following the Court's decision yesterday in Rush Prudential HMO, Inc. v. Moran). And now, on to the details of yesterday's rulings:

1. The mentally retarded "win" right to spend life in prison for committing capital murder: While one may legitimately debate whether the penalty of life imprisonment without parole is more cruel than the State's administration of the death penalty, as far as the U.S. Supreme Court is concerned the death penalty wins hands down on the cruelness comparison scale. Thus, yesterday the Court ruled 6-3 that evolving standards of decency in this nation compelled the holding that executing the mentally retarded violates the Eighth Amendment's prohibition on cruel and unusual punishment. See Atkins v. Virginia, No. 00-8452 (U.S. June 20, 2002). Justice Stevens wrote the majority opinion, which he assigned to himself as the most senior Justice in the majority. Justice Scalia wrote the principal dissent, in which the Chief Justice and Justice Thomas joined. The Chief Justice also chimed in with a short separate dissent of his own, in which Justices Scalia and Thomas joined. The most notable aspect of this decision, however, was that both Justices O'Connor and Kennedy joined with the Court's four-person moderate to liberal voting bloc to make this a 6-3 ruling rather than another harshly contested 5-4 ruling.

Having made the mistake of taking a two-day vacation that included yesterday and most of today, I can't be the first legal commentator to tell you that Justice Scalia's dissenting opinion struck me as much more persuasive than Justice Stevens' majority opinion. See here (excellent essay, Rick!), here, and here, for example. The only portion of Justice Stevens' majority opinion that I found particularly persuasive was toward the end, where he explained how a defendant who is retarded might be at a greater risk of being wrongfully convicted or wrongfully punished to death.

Justice Scalia's dissent, which had the bad fortune of following an eight-page informational chart that served as the appendix to the Chief Justice's dissent, began with sparks flying:
Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.
At the outset of his dissent, Justice Scalia traced how our nation has applied the death penalty to the mentally retarded. He explained that when the Bill of Rights was adopted, only a special class of the retarded then endearingly known as "idiots" were exempted from the death penalty because they could not tell right from wrong. (Today, ironically, the term is reserved for lawyers who seek career advice via a blog.) Reassuringly, however, imbeciles where not exempt even though they too were retarded, but less profoundly so. (This discussion allowed for a cite to everyone's favorite book from the early nineteenth century, A. Highmore's "Law of Idiocy and Lunacy" (1807)). Although Justice Scalia does not believe, as an original matter, that an emerging consensus of unconstitutionality should suffice to cause a punishment to violate the Eighth Amendment, his dissent next proceeded to explain why the majority is wrong to say that such a consensus exists with respect to executing the mentally retarded.

In Part III of his dissenting opinion, Justice Scalia returned to the big picture:
Beyond the empty talk of a "national consensus," the Court gives us a brief glimpse of what really underlies today's decision: pretension to a power confined neither by the moral sentiments originally enshrined in the Eighth Amendment (its original meaning) nor even by the current moral sentiments of the American people. "'[T]he Constitution,'" the Court says, "contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." (The unexpressed reason for this unexpressed "contemplation" of the Constitution is presumably that really good lawyers have moral sentiments superior to those of the common herd, whether in 1791 or today.) The arrogance of this assumption of power takes one's breath away. And it explains, of course, why the Court can be so cavalier about the evidence of consensus. It is just a game, after all. "[I]n the end," it is the feelings and intuition of a majority of the Justices that count -- "the perceptions of decency, or of penology, or of mercy, entertained * * * by a majority of the small and unrepresentative segment of our society that sits on this Court."
Before concluding, Justice Scalia also noted that mental retardation can easily be feigned.

In the aftermath of this ruling, I look forward to seeing how three issues are addressed in the days, weeks, months, and years ahead. First, is it truly more civilized to keep those who are retarded but unquestionably guilty of capital murder imprisoned for life? Many unquestionably guilty non-retarded capital defendants seem to prefer the death penalty to spending the rest of their natural lives behind bars. Second, will States that are already hard-pressed for funds find a way to provide better treatment and medical attention to mentally retarded convicts? And, finally, will society ever find a less negative term than "retarded" to describe these individuals (e.g., mentally impaired, or something), so that the term "retarded" can join "idiot" and "imbecile" as schoolyard taunts rather than remaining a medically-accepted descriptor? (See here and here for two discussions of this issue.)

2. ERISA preemption narrowed even further: Health Maintenance Organizations suffered a substantial defeat in yesterday's other blockbuster case when the Court ruled 5-4 that the Employee Retirement Income Security Act of 1974 did not prevent the State of Illinois from enacting an independent review mechanism providing that, whenever an HMO denies a claim for medical treatment, if "[i]n the event that the reviewing physician determines the covered service to be medically necessary," the HMO "shall provide" the service. See Rush Prudential HMO, Inc. v. Moran, No. 00-1021 (U.S. June 20, 2002). Justice Souter wrote the majority opinion, in which Justices Stevens, O'Connor, Ginsburg and Breyer joined. Justice Thomas wrote the dissenting opinion, in which the Chief Justice and Justices Scalia and Kennedy joined.

In recent years, HMOs have seemingly experienced one setback after another from the Court on the scope of ERISA preemption. If broad ERISA preemption is recognized, HMOs will rarely be subject to suit in state court under state law. If only very narrow ERISA preemption is recognized, HMOs will be regularly subject to suit in state court under state law. Originally, the Court suggested that the scope of ERISA preemption would be quite broad. But, that has over time has not proved correct. Yesterday's decision even seems to have deprived the HMOs of some of the more favorable aspects of the Court's recent ruling in Pegram v. Herdrich, 530 U. S. 211 (2000). Given the increasingly important role that HMOs are playing in the provision of health care in the United States, and given the increasing amount of State regulation of HMOs both through legislation and litigation, the Court's ruling in Rush Prudential is likely to prove quite significant.

As tempting as it may be to explain the details of the Court's decision here, were I to do so your eyes would likely glaze over. For the decision involves not only ERISA's preemption clause but also a separate clause that exempts from preemption state laws that regulate insurance. Indeed, one of the HMO's main arguments in Rush Prudential was that HMOs were primarily healthcare providers, not insurers. The Court's majority would have none of that, and instead concluded that HMOs are both healthcare providers and insurers. In the final analysis, more state regulation of HMOs may benefit patients who wish to dispute treatment decisions or those injured as the result of substandard care; however, more regulation also will likely increase the rate of health insurance premiums and could cause fewer employers to offer such coverage.

3. Time for this decade's installment of "Challenge The Census": The U.S. Constitution requires the federal government to count the nation's population every ten years. Originally, it was clear that counting the population meant just that -- sending out canvassers to roam across the nation to count each and every person. Today, of course, advances in technology allow the Census Bureau to have a fairly certain idea of precisely how many people live in each state and in the nation as a whole, so that the actual counting of people is reduced to something of a formality. Yet an attempt an actual count is what the Constitution requires, so that is what is done ever ten years.

For the past few decades, after each census one or more states have brought suit to challenge the methods by which the Census Bureau has employed statistical methods to render more accurate (at least that's what we hope is happening!) the actual enumeration. You see, not even avid bloggers remain home at all times, and sometimes the actual enumeration will establish nothing conclusively other than its own lack of reliability. Anyhow, these statistical methods are employed to increase the count the actual enumeration has produced to more closely approximate the count the actual enumeration would have produced if everyone had cooperated with the census and stayed home on the day of the count to be counted. (Yes, I know, door-to-door canvassing is just a small portion of the count, but it provides a much more colorful image than picturing the head of household filling out a multiple-choice questionnaire with a number 2 pencil.)

In this decade's installment of challenge the census, the State of Utah has sued to protest the fact that the method of count enhancement known as "hot-deck imputation" caused Utah to lose a seat in the U.S. Congress's House of Representatives to the State of North Carolina. (See this map, which the Census Bureau has helpfully provided.) Just as California now gets 53 U.S. Representatives and Idaho only two, population shifts from decade to decade can result in the movement of House seats from one state to another.

Yesterday the Court rejected Utah's challenge to "hot-deck imputation." See Utah v. Evans, No 01-714 (U.S. June 20, 2002). Justice Breyer wrote the majority opinion, in which only the Chief Justice and Justices Stevens, Souter and Ginsburg joined in full. Justice O'Connor dissented from the Court's holding that "hot-deck imputation" was statutorily lawful. Justice Thomas, joined by Justice Kennedy, concluded that the method was statutorily lawful but violated the Constitution. Finally, Justice Scalia dissented and would have held that Utah and the other petitioners lacked standing to bring this suit. All of which makes this complex case a 5-4 ruling!

None of the opinions in this case did a very good job of explaining what "hot-deck imputation" actually means. The term, which one might associate with a Las Vegas card table where the players are much happier than the house, actually appears to describe a statistical method that is not limited to census-taking. As this Web page explains,
In hot deck imputation, a donor case is selected from the current round of respondents by matching on related variables. The donor case's response is used as a proxy for the recipient's missing variable. Hot deck imputation is the method of choice for variables that may change over time, such as employment characteristics. Hot deck is preferable to model-based imputation in this application because it easily preserves correlation among variables and maintains the valid response rages for categorical variables.
So, today's lesson is that hot-deck imputation is good, while statistical sampling remains bad. How are the two methods dissimilar? Ask your local statistician. At a minimum, yesterday's ruling is bound to be good news for fans of Congressional redistricting challenges involving bizarrely shaped districts in North Carolina. So stay tuned for that likely companion case coming soon to a High Court near you.

4, 5 & 6 -- Proving that not every end-of-Term decision is a blockbuster: Sometimes the crop of decisions that issues on a given day during the final weeks of the U.S. Supreme Court's Term can resemble the banquet menu at a suburban Chinese restaurant. You've got the especially appealing dishes in "Column A," from which you'd prefer to select all of your table's entrees. And then there's "Column B," which contains the selections that can only be described as insipid. Yesterday, the Court decided three cases remaining in "Column B," guaranteeing that most of next week's rulings will consist of the tasty morsels remaining in "Column A."

4. Yesterday the grammatically-challenged Ours Garage and Wrecker Service, Inc. suffered a serious setback in its suit against the City of Columbus, Ohio. Ours Garage sued in federal court, arguing that a federal statute prohibited Columbus from regulating the operation of tow-trucks in that city. Although both the trial court and the U.S. Court of Appeals for the Sixth Circuit sided with Ours, the U.S. Supreme Court reversed by a vote of 7-2, holding that the federal law in question does not prevent a State from delegating to municipalities and other local units the State's authority to establish safety regulations governing motor carriers of property, including tow trucks. Justice Ginsburg wrote the majority opinion; Justice Scalia wrote a dissenting opinion, in which Justice O'Connor joined. You can access the Court's ruling here.

In an attempt at interesting sports fans in this case, Justice Scalia's dissenting opinion explained:
The situation is comparable to the following hypothetical using the term "football" (which may be used to include soccer, see Websterís New International Dictionary 983 (2d ed. 1950)): Assume a statute which says that "football and soccer shall not be played on the town green," except that "football and soccer may be played on Saturdays," "football and soccer may be played on summer nights," and "football may be played on Mondays." In todayís opinion, the Court says soccer may be played on Mondays. I think it clear that soccer is not to be regarded as a subset of football but as a separate category. And the same is true of "political subdivision" here.
Well, that certainly clears things up! For anyone concerned about the fate of Ours's challenge to the regulations in question, the Court remanded the challenge to consider whether federal law might preempt the regulations on another ground that the lower courts have yet to consider.

5. In the second-to-last case decided yesterday, the Court ruled 5-2-2 that the Family Educational Rights and Privacy Act of 1974 does not allow individuals to sue educational institutions under the federal civil rights act for violations of FERPA. You can access this ruling here. The Chief Justice wrote the majority opinion, in which the usually reliably conservative quartet of Justices O'Connor, Scalia, Kennedy and Thomas joined. Justice Breyer wrote an opinion concurring in the judgment, in which his former First Circuit colleague, Justice Souter, joined. Justice Stevens wrote a dissenting opinion in which Justice Ginsburg joined.

6. Finally, attorney Jennifer Harbury, who argued her very own case before the Court in March 2002, lost yesterday when the Court ruled unanimously that her assertion that various government officials had improperly denied her right of judicial access failed to state a claim. Justice Souter wrote the majority opinion. Justice Thomas wrote a very short opinion concurring in the judgment in which only he joined. You can access the decision here.

As Justice Souter's opinion explains at its outset:
Respondent-plaintiff in this case alleges that Government officials intentionally deceived her in concealing information that her husband, a foreign dissident, was being detained and tortured in his own country by military officers of his government, who were paid by the Central Intelligence Agency. One count of the complaint, brought after the husband's death, charges that the official deception denied respondent access to the courts by leaving her without information, or reason to seek information, with which she could have brought a lawsuit that might have saved her husband's life. The issue is whether this count states an actionable claim. We hold that it does not, for two reasons. As stated in the complaint, it fails to identify an underlying cause of action for relief that the plaintiff would have raised had it not been for the deception alleged. And even after a subsequent, informal amendment accepted by the Court of Appeals, respondent fails to seek any relief presently available for denial of access to courts that would be unavailable otherwise.
For these reasons, the Court reversed the decision of the U.S. Court of Appeals for the D.C. Circuit, which had denied defendants' motion to dismiss this aspect of Ms. Harbury's suit. This suit is not over, however. Ms. Harbury has asserted other claims not at issue before the Supreme Court that remain pending against the defendants.

What to expect from the Court in the week ahead: The Court will issue opinions in the remaining eight argued cases next week. At 10 a.m. on Monday, June 24, 2002, the Court will issue both opinions and orders. If fewer than eight opinions issue on Monday, the Court will return later in the week to announce the balance of its opinions. Also, the Court likely will release a second set of orders later next week after the Court's conference on Thursday, June 27, 2002. And that concludes tonight's U.S. Supreme Court round-up.
Posted at 23:26 by Howard Bashman

SHOULD JUDGES BE BARRED FROM ATTENDING SEMINARS SPONSORED BY INTEREST GROUPS?:, in an article by Tony Mauro, reports in its Monday edition that tensions are flaring between the governing body of the federal judiciary and the American Bar Association over the ABA's consideration of an ethics opinion that will address whether judges should attend seminars sponsored by interest groups. In July 2000, the organization Community Rights Counsel issued a report that began: "Every year more and more federal judges fly to resort locations to attend privately funded seminars. All of a judge's expenses are paid for, including tuition, transportation, food, lodging, and various leisure activities." Now the CRC has an entire Web site devoted to the issue. I have always viewed CRC's concern on this issue to be a bit overblown, because federal judges cannot and should not be hermetically sealed off from ideas that might impact a case that could later come before the judges. Many other reasonable people, however, believe that the CRC has the better argument, and that lavish corporate-funded educational seminars for federal judges give rise to an appearance of impropriety.
Posted at 22:55 by Howard Bashman

VIEWER MAIL: The Late Show with David Letterman every Friday night presents viewer mail, so tonight How Appealing will do likewise. This blog is fortunate to have among its readers a number of former U.S. Supreme Court law clerks. How do I know? Why, they send emails, of course.

Tonight's featured email is from someone who apparently will be starting a clerkship at the U.S. Supreme Court this fall:
I have been reading your blog for the last couple of days, and it is truly the best that I've seen. I am a law clerk on a federal circuit court, and I will clerk on another federal court next year. I rarely have time to take notice of interesting opinions or articles that surface on the Internet. Your blog strikes just the right balance between thoroughness and brevity, and your writing is so much more cogent than that of journalists who write about the law for major media outlets. [References to specific legal journalist and city where email's sender is now working omitted.] Nothing substantive here. Just wanted to let you know that your efforts are appreciated * * *.
Thank you so much for that very kind email.
Posted at 22:04 by Howard Bashman

LIBRARY INTERNET FILTERING CASE HEADS TO U.S. SUPREME COURT: The Washington Post is reporting that the U.S. Department of Justice has appealed to the U.S. Supreme Court from the three-judge ruling of the U.S. District Court for the Eastern District of Pennsylvania that recently struck down the Children's Internet Protection Act (CIPA). You can access The Washington Post's report at this link. You can access my prior posting on the district court's ruling here. Congress, when it enacted CIPA, included in the law a special provision that allowed for fast-track U.S. Supreme Court review. Because the initial challenge to the law was heard by a three-judge federal district court panel, the Supreme Court has mandatory jurisdiction and must hear the federal government's appeal. Expect oral argument to occur sometime late this year or early next year.
Posted at 17:53 by Howard Bashman

DEAL NEAR TO ALLOW CONFIRMATION OF MORE FEDERAL JUDICIAL NOMINEES?: The Associated Press is reporting this afternoon that Senate Majority Leader Tom Daschle and Senate Minority Leader Trent Lott are near a deal that would ensure the confirmation of more of President Bush's judicial nominees. You can access the report here. The report provides few specifics about which judicial nominees would benefit from the possible deal. Many federal appellate courts have far too many judicial vacancies, have had judicial seats go unfilled for extended periods of time, or both.
Posted at 17:31 by Howard Bashman

STAY TUNED: Coming tonight, my summary of yesterday's six U.S. Supreme Court decisions. At least two of those six decisions qualify as end-of-the-Term blockbusters.

WE NOW RETURN YOU BACK TO YOUR ORIGINAL PROGRAM: Thanks to everyone who took the time to respond to my post of yesterday morning. Those responses all were well-meaning, thoughtful and informative. No one knows better than I do how lucky I am to have the job I currently possess, along with a wonderful and healthy wife and son, and a group of terrific friends and colleagues. On the other hand, I think that anyone who works for a living -- even lawyers -- should regularly ask himself or herself whether the job that he or she possesses is the one that makes him or her the most content. The jobs that have made me the most content in my life have not always been the ones that have been the highest paying or what everyone might consider the most prestigious. My prior post was not intended to suggest that I am at all dissatisfied with my current law firm or that I am likely to leave there. In fact, I owe a great debt of gratitude to my current employer for reasons that are too numerous and personal to list here. It would be the easiest thing in the world for me to stay at my current place of employment for many years to come, and thus that is what I am most likely to do. At the same time, practicing lawyers know that there are just a few in our ranks who are not constantly thinking about whether there is something better "out there" compared to what we are currently doing. And, in that respect, lawyers are no different from anyone else who works for a living. One way to figure out the answer to that overarching question is to ask others for advice. I did that, and the responses that I received accomplished my goal. Thus, this blog now returns back to How Appealing's original programming, which involves me pointing you in the direction of noteworthy and/or interesting appellate rulings and developments.
Posted at 17:10 by Howard Bashman

Thursday, June 20, 2002
WHAT DO YOU THINK I SHOULD DO?: Welcome to How Appealing's first installment of "What Do You Think I Should Do?" While I'm off with my wife and son visiting one of central Pennsylvania's finest chocolate-related amusement parks, you now have this opportunity to offer me career advice.

I am currently chair of the appellate litigation practice at one of Pennsylvania's largest law firms. I am also co-chair of the Appellate Courts Committee of the Philadelphia Bar Association and appellate columnist for The Legal Intelligencer, Philadelphia's daily newspaper for lawyers. I am fortunate to have handled, and to be handling, numerous appellate matters of great significance to my clients and, sometimes, to the law generally. And, I have had a good record of success in these matters. To see examples of my recent work, click here and here.

My contract of employment at my current law firm expires at the end of 2002. Before that time, it will be necessary for me to decide whether to stay at my current firm, move to another law firm in Philadelphia (let the bidding wars begin!), or do something else. In the category of something else, I have begun to consider two other options: becoming a sole practitioner or becoming a law school professor.

Becoming a sole practitioner would allow me to avoid the problem of positional conflicts, which has caused my current firm to turn down work from potential clients of mine that would have generated some $600,000 in fees over the past year and four months.

What is a positional conflict? Let's say that a law firm does corporate work for Kraft Foods, which is a subsidiary of Philip Morris. Philip Morris, of course, is a company that produces cigarettes. Separately, a plaintiff that has won a large tobacco-related personal injury verdict against R.J. Reynolds Tobacco Co. seeks to hire a lawyer at that very same law firm to represent the plaintiff on appeal. The law firm might be concerned that representing a plaintiff in a personal injury case against a different tobacco company would cause Philip Morris to stop using the law firm to do corporate work for Kraft. As a result, the firm turns down the opportunity to represent the plaintiff in the appeal adverse to R.J. Reynolds. That, my good reader, is an example of a positional conflict.

With respect to becoming a sole practitioner, I have identified the following pros and cons. Pros: Many fewer potential positional conflicts; lawyers at other firms who seek an experienced appellate advocate would be more willing to use me because I, working alone, would pose no threat of poaching the client's other, non-appellate work; I would probably be able to work fewer hours but make the same or even more money; I could work from home or some other convenient location that did not require me to commute one hour per day each way to and from Center City Philadelphia. Cons: What if no one hires me?; I have never operated a law firm and donít know all that much about what it would involve; what if I end up with more work than I can handle?

Becoming a law professor also presents various pros and cons. Pros: I truly enjoy the intellectual side of the law, teaching others about the law, and writing and thinking about important and even obscure legal issues; being a law professor probably would allow me to handle appellate cases for pro bono and paying clients from time to time, although that could no longer be my principal focus; there are many very fine law schools located in and around Philadelphia; unlike becoming a sole practitioner, this path would guarantee a minimum income; I think that I would succeed at being a law professor, just as I have somehow managed to succeed at my prior jobs as a lawyer. Cons: I have the impression that the financial compensation law professors receive is less than (and maybe significantly less than) what I am currently being paid; although there are ways to earn additional outside income as a law professor, there are only so many hours in a day; if I am successful, other law schools might try to lure me away from Philadelphia, but it would be next to impossible for me to take a job elsewhere anytime in the foreseeable future.

Fortunately for me, among this blog's readers are lawyers at large and small firms, law professors, federal and state judges and law clerks, and many other very intelligent people who undoubtedly have much more wisdom and objectivity about the advantages and/or drawbacks of these options. If you have any insights to share as I ponder these career options, please send your thoughts along to me via email. You can reach me at appellateblog - at - or by clicking here. Next week, after I return from my brief respite in central Pennsylvania, I will post to this blog a summary of the most meaningful responses that I have received. Thank you for reading (and, I hope, participating in) How Appealing's first installment of "What Do You Think I Should Do?"
Posted at 06:57 by Howard Bashman

NOW AVAILABLE ONLINE: You can now access online the federal government's brief filed in the U.S. Court of Appeals for the Fourth Circuit opposing a federal district court's order that sought to give a federal public defender access to interview the so-called second American Taliban, who is being held in U.S. military custody at the Naval Station Brig in Norfolk, Virginia. The U.S. Solicitor General's Office is shown as among the government's counsel on appeal. Separately, The Washington Post in Thursday's edition offers this editorial that criticizes the government's position on appeal.
Posted at 00:36 by Howard Bashman

Wednesday, June 19, 2002
MORE U.S. SUPREME COURT OPINIONS TO ISSUE ON THURSDAY, JUNE 20, 2002: The Supreme Court of the United States is scheduled to issue more opinions in argued cases at 10 a.m. eastern time tomorrow, Thursday, June 20, 2002. Those decisions should be available at this link by 11 a.m. eastern time tomorrow. I, on the other hand, will not be available to summarize tomorrow's decisions until Friday night, because I, my wife and our son will be visiting an amusement park in central Pennsylvania tomorrow and Friday. Anyone concerned that it will feel so empty without me (thanks, Michelle, for your recent Eminem-related post) can see above for the very first installment of How Appealing's "What Do You Think I Should Do." It will appear here early Thursday morning and will provide you with a chance to offer me some career advice.
Posted at 23:43 by Howard Bashman

A VERY DISMAYING RESULT: Last year I accepted a pro bono assignment from the U.S. Court of Appeals for the Third Circuit to represent a Christian refugee from the West African nation of Burkina Faso whose applications for asylum, withholding of removal, and relief under the United Nations Convention Against Torture the INS had denied. This individual fled from his nation of origin in late November of 1999 and has been in INS lock-up since December 1, 1999, first at the Elizabeth Detention Center in the shadows of Newark International Airport and for over a year at the infamous Passaic County Jail in Paterson, New Jersey. My client fled Burkina Faso after his locality's tribal chief caused the murder of his parents and two sisters and threatened him with murder, all in order to take over my client's family's vast plot of land in a country plagued by an incredibly high rate of poverty. Before my client fled to the United States, he tried to relocate within Burkina Faso, but the chief's men tracked him down there in order to kill him. My client next fled to the neighboring country of Ghana, but again the chief's men tracked him down and sought to kill him. My client is at serious risk of death in Burkina Faso because he now is the lawful owner of the land that the tribal chief has already murdered four members of my client's family in order to seize.

I have visited my client in prison a half-dozen times, and there is no doubt he is legitimately in fear of being killed upon his return to Burkina Faso. The fact that he actually prefers imprisonment in the Passaic County Jail to a return trip home and release from confinement is itself compelling proof of the legitimacy of his fear. Today, to my dismay, the Third Circuit issued a not precedential opinion, which you can access here, denying my client's claims for asylum, withholding of removal, and relief under the Convention Against Torture. You can read the briefs that I filed in the case by clicking here and here.

The Third Circuit's decision does not question the veracity of my client's assertion that he will be killed upon his return to Burkina Faso. Rather, the Court concludes that he has not satisfied the legal tests for refuge in the United States. While it might strike many as heartless that a federal court would return a refugee to a foreign nation to be murdered by a lawless tribal chief, I would be willing to accept that result if I were persuaded that it was legally mandated. But, I am not so persuaded. And here is why.

The federal statute found at 8 U.S.C. section 1101(a)(42)(A) provides that a person qualifies as a refugee entitled to be considered for asylum if he is unwilling to return to his country of origin "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." My client's principal argument was that he was subject to persecution on account of membership in a particular social group consisting of his nuclear family. The Third Circuit, and other federal appellate courts, have held that persecution on account of one's membership in a nuclear family qualifies as persecution on account of membership in a particular social group.

Today, however, the Third Circuit in ruled in my client's case that nuclear family-related persecution only qualifies as persecution on account of membership in a particular social group if the main target of the persecution in the family is being persecuted on account of political opinion. That proposition, which I do not recall the INS to have argued in its Third Circuit brief, seems to me to conflate two entirely separate grounds for asylum in the governing statute. In other words, persecution on account of political opinion is an entirely separate ground for asylum from persecution on account of membership in a particular social group. If persecution on account of membership in a nuclear family can qualify as social group persecution, then that should remain true regardless of whether or not the family is being persecuted on account of one member's political opinion.

If any immigration law experts are reading this post, please send me an email to let me know whether you agree with my analysis here. You can reach me at appellateblog -at- or by clicking here. My client's only two remaining options are a petition for rehearing and/or rehearing en banc in the Third Circuit and a petition for writ of certiorari to the U.S. Supreme Court. I will keep you posted as to what happens next. But, it will undoubtedly be a very sad day for my client when he learns of this result.
Posted at 22:57 by Howard Bashman

ANOTHER FINE MOMENT IN THE ANNALS OF STATUTORY DRAFTING: 18 U.S.C. section 2251 prohibits the sexual exploitation of a child. The statute contains its own penalty provision in subsection 2251(d). The penalty provision states:
[a]ny individual who violates . . . this section [relating to the sexual exploitation of children] shall be fined under this title or imprisoned not less than 10 years nor more than 20 years, and both.
Today the U.S. Court of Appeals for the Fourth Circuit was forced to grapple with the meaning of this quite confusingly worded statute. As the Fourth Circuit explained:
The statute is confusing in two respects. The first and most glaring problem is the phrase "and both." Whatever sentencing options Congress may have intended to provide, it made no sense to add "and both" at the end of this part of section 2251(d). If Congress had intended to permit a district court to impose just a fine, just imprisonment, or both a fine and imprisonment, then it would have said "fined . . . or imprisoned . . . or both." If, on the other hand, Congress had intended to require both a fine and imprisonment, it would have simply said "fined . . . and imprisoned." It is hard to believe that Congress intentionally wrote "fined . . . or imprisoned" and then added "and both" at the end to cancel out the "or." Although the government acknowledges the confusion, it urges us to read "and both" as requiring on its face both a fine and imprisonment.
In the final analysis, the Fourth Circuit concluded that the statute indeed allows the trial court to impose only a fine, but that if a sentence of imprisonment is required, the minimum term must be ten years. In today's case, the applicable U.S. Sentencing Guidelines calculation required that the defendant be imprisoned, and thus the Fourth Circuit upheld the ten-year sentence that the trial court imposed on the defendant. You can access the Fourth Circuit's ruling here.
Posted at 22:39 by Howard Bashman

WHO WANTS TO BE A DEFENDANT?: The U.S. Court of Appeals for the Eleventh Circuit has reinstated a lawsuit claiming that the television show "Who Wants to Be a Millionaire" violates the Americans with Disabilities Act by requiring contestants to compete using a touch-tone phone in order to be selected to appear on the show. You can access the court's ruling here.
Posted at 14:59 by Howard Bashman

WALTER DELLINGER AND DAHLIA LITHWICK: In honor of the impending release before the end of next week of the Term's most important U.S. Supreme Court rulings, Slate Magazine today has begun running a two-week "breakfast table" discussion between former acting U.S. Solicitor General Walter E. Dellinger, III and Dahlia Lithwick, who covers the Court for Slate. So far, the most noteworthy thing about the conversation (the first installment of which you can access here) is that Mr. Dellinger's last name is misspelled with only one "L" in the fake "to" and "from" lines running with the feature. (Update: Slate has now fixed this typo.) The second most noteworthy thing is that Ms. Lithwick's follow-up entry (which you can access here) provides this link to an ex parte pleading filed by Zacarias Moussaoui.
Posted at 14:23 by Howard Bashman

ATTENTION BBC: Today the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of claims brought by The Diana Princess of Wales Memorial Fund against the Franklin Mint Company. As the court's opinion explains:
The Fund was established in 1997 after Princess Diana's death to accept donations to be given to various charities with which Princess Diana was associated during her lifetime. The Estate exclusively authorized the Fund to use Princess Diana's name and likeness for this purpose. The Fund in turn authorized about twenty parties -- but not Franklin Mint -- to use the name and likeness of Princess Diana in conjunction with products sold in the United States. Franklin Mint continued to market unauthorized Diana-related products.
The trial court eventually dismissed all of the Fund's claims against Franklin Mint and awarded Franklin Mint $2,308,000 in attorneys' fees. Today the Ninth Circuit has affirmed those rulings in full. You can access the Ninth Circuit's opinion here. You can click here to view the Franklin Mint's "Angel of Hope" Collector Plate, which features three images of Princess Diana.
Posted at 13:42 by Howard Bashman

PORTION OF ARIZONA'S PUBLIC CAMPAIGN FINANCE LAW STRUCK DOWN: The Arizona Court of Appeals, that State's intermediate appellate court, on Monday of this week struck down as unconstitutional one aspect of the funding mechanism for that State's "Citizens Clean Elections Act." You can access the court's ruling here. The law in question imposed a ten percent surcharge on persons paying civil and criminal fines. The money raised through the surcharge then went to fund publicly-financed election campaigns. The court held that the surcharge violated the First Amendment's guarantee of the freedom of speech by compelling those who owe such fines to finance speech (by paying surcharges that will later be given to candidates for elected office who qualify for public campaign financing) that was not directly related to the interests of the people who were paying such fines. On first glance, the ruling appears sound to me. You can find much more coverage of this case and its aftermath at the blog of "Edward Boyd," which you can access here.
Posted at 08:28 by Howard Bashman

Tuesday, June 18, 2002
PROVE IT: The Associated Press is now reporting, based on an academic's study, that then-Justice Rehnquist was one of the inside sources of information found in the book "The Brethren." You can access this report here. For what it's worth, I'm not convinced.
Posted at 16:58 by Howard Bashman

NINTH CIRCUIT RULES IN NUCLEAR EXPOSURE CASES: The U.S. Court of Appeals for the Ninth Circuit today decided two companion cases (see here and here) that involved the claims of thousands of plaintiffs who filed suit for damages allegedly arising out of their exposure to harmful levels of radioactive emissions from the Hanford Nuclear Reservation in the State of Washington over a period of many years. These opinions would appear to be a big deal, as the court has also issued this press release announcing the decisions.
Posted at 16:10 by Howard Bashman

TODAY'S ECONOMICS LESSON FROM JUDGE POSNER: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, in an opinion written by Circuit Judge Richard A. Posner, reversed the dismissal of a large class action against the major manufacturers of high fructose corn syrup, the sweetener that's probably in your carbonated beverage if you're not drinking diet soda. The case is now being sent back to federal district court for a trial. You can access here the Seventh Circuit's opinion in In re High Fructose Corn Syrup Antitrust Litigation, No. 01-3565 (7th Cir. June 18, 2002).
Posted at 14:56 by Howard Bashman

THE WORK OF A FEDERAL JUDGE NEVER ENDS: The Legal Times contains this report about a District of Columbia-based federal district judge who, according to the article, "has consistently been the slowest of the 14 active federal trial judges in the District of Columbia in dealing with motions." While a federal judgeship comes with life tenure, the federal courts exercise a form of self-governance that attempts to encourage each judge to perform his or her fair share of the work. Several times each year, "the list" is transmitted to the Administrative Office of the United States Courts showing which judges have taken an unusually long time to dispose of pending matters. The federal appellate judge for whom I clerked loathed being on the list unless he was drafting an opinion in a very, very complicated matter. So, it's not only the U.S. Supreme Court that is now trying to dispose promptly of undecided matters. Rather, it is the entire federal judiciary.
Posted at 14:40 by Howard Bashman

SIXTH CIRCUIT TO BE UNDER LEGISLATIVE SCRUTINY?: A columnist on the OpinionJournal site, run by The Wall Street Journal, reports in a column you can access here that the House Judiciary Committee may hold hearings to investigate the charges of two Sixth Circuit judges that procedural irregularities may have influenced the outcome of that court's en banc ruling in the University of Michigan Law School race-based admission preferences case. You can access my earlier postings on that subject here and here. Those who follow the Sixth Circuit closely know that this is not the first time the judges of that court have lost their temper with one another. See, for example, this report of November 12, 2001 from The Washington Post.

THIRD CIRCUIT KEEPS INS HEARINGS OPEN: The Washington Post reports in today's issue that the U.S. Court of Appeals for the Third Circuit yesterday refused the federal government's expedited request to stay or reverse a New Jersey federal district judge's decision that struck down the INS's blanket policy of secrecy over deportation hearings for immigrants rounded-up in the post-September 11th anti-terrorism sweeps. The vast majority of those rounded-up were found to be in the United States illegally but were not implicated in acts of terrorism. According to today's article, the federal government is considering whether to seek further appellate review, either from the en banc Third Circuit or from the U.S. Supreme Court.

NEW MEGAN'S LAW NOT AN EX POST FACTO VIOLATION: Yesterday the Superior Court of Pennsylvania rejected a defendant's challenge to an aspect of Pennsylvania's newly amended Megan's Law, which requires convicted sex offenders to register with the state police for the rest of their lives. The version of Megan's Law in effect in Pennsylvania when the defendant committed his crime only contained a ten-year registration requirement. A three-judge panel of the Superior Court held yesterday that requiring the defendant to register for the rest of his life did not violate the U.S. Constitution's prohibition on ex post facto laws.

IS THE FEDERAL DEATH PENALTY UNCONSTITUTIONAL: Today, The New York Times offers this report on a case pending before a federal district judge serving on the U.S. District Court for the Southern District of New York in which the judge has already express his view that the federal death penalty likely is unconstitutional. Whether the judge's final ruling in the case will strike down the federal death penalty remains to be seen.

LISTEN TO THIS: Yesterday, in an appeal arising from litigation between Dolby Laboratories and the person who invented "surround sound," Seventh Circuit Judge Richard A. Posner identified the U.S. Supreme Court ruling that is his latest candidate for reversal by the High Court. You can access his opinion here. On at least one prior occasion (which he happens to describe in yesterday's ruling), Judge Posner had identified a case that the Supreme Court should reverse, and the Court then granted review and followed Judge Posner's advice. Judge Posner's opinion also criticizes a district court decision written by Third Circuit nominee D. Brooks Smith (see page 10 of Judge Posner's opinion).
Posted at 11:06 by Howard Bashman

Monday, June 17, 2002
U.S. SUPREME COURT ROUND-UP FOR JUNE 17, 2002: Today the Supreme Court of the United States issued opinions in five argued cases, summarily reversed a Third Circuit ruling that overturned a state prisoner's death penalty, summarily affirmed a redistricting case from Texas that was within the High Court's mandatory appellate jurisdiction, granted review in no new cases, and ordered the Solicitor General of the United States to provide his views on whether two lawyers deserve to receive payment under the Criminal Justice Act for having represented a Texas-based habeas petitioner in a state clemency proceeding. The Court is next scheduled to issue opinions in argued cases on Thursday, June 20, 2002. Fourteen argued cases remain to be decided before the Court begins its summer recess. The Court is expected to decide all fourteen of these cases before the end of next week. And now, a summary of today's five opinions in argued cases:

1. Can I get a Witness? The answer will soon be yes for those who live in the Village of Stratton, Ohio. The Supreme Court today held that Stratton violated the First Amendment when it adopted an ordinance that prohibited canvassers from going onto residential property without first registering with the mayor's office and receiving a permit. In so ruling, the Court delivered an important victory for a group of Jehovah's Witnesses that brought this suit alleging that the ordinance violated the group's rights to free exercise of religion and freedom of speech. The Court's ruling reversed the Sixth Circuit's decision below, which had upheld the legality of the ordinance as judicially narrowed by the trial court. You can access here the Supreme Court's ruling in Watchtower Bible and Tract Society v. Village of Stratton, No. 00-1737 (U.S. June 17, 2002). The Supreme Court's ruling in this case was 8-1. Justice Stevens wrote the majority opinion, and Justices Scalia and Thomas concurred only in the judgment by means of a short opinion that Justice Scalia wrote. Chief Justice Rehnquist dissented, still very concerned about whether rulings such as this could lead to more instances of the type of crime that led to the killing in Hanover, New Hampshire of two Dartmouth College professors. Notwithstanding the Chief Justice's somewhat mournful dissent, Justice Scalia managed to work a small bit of levity into his opinion concurring in the judgment. The majority opinion mentioned:
There are no doubt other patriotic citizens, who have such firm convictions about their constitutional right to engage in uninhibited debate in the context of door-to-door advocacy, that they would prefer silence to speech licensed by a petty official.
Justice Scalia would have none of that, writing in his opinion concurring in the judgment:
As for the Courtís fairy-tale category of "patriotic citizens" who would rather be silenced than licensed in a manner that the Constitution (but for their "patriotic" objection) would permit: If our free-speech jurisprudence is to be determined by the predicted behavior of such crackpots, we are in a sorry state indeed.
Chief Justice Rehnquist's dissent was also noteworthy, because it represents the first time the Court has cited to Malcolm Gladwell's fine book, "The Tipping Point."

2. Justice Clarence Thomas owns a luxury tour bus that he and his family use to travel throughout the country, and therefore it may be significant that he sided with the majority today in ruling that the Fourth Amendment does not require police officers to warn bus passengers of their rights not to answer questions or to consent to searches. Oddly enough, it wasn't questioning or a search of luggage that led the police to find drugs on the respondents. Rather, after finding no drugs in the respondents' luggage, the police asked permission to pat down the two men, and, like many other unintelligent drug couriers before them, the two men consented, only to have the drugs they were attempting to hide on their bodies discovered. You can access here the Court's ruling in United States v. Drayton, No. 01-621 (U.S. June 17, 2002). Justice Kennedy wrote the majority opinion, which picked up the votes of his four other conservative colleagues and of Justice Breyer. Justice Souter wrote a dissenting opinion on behalf of himself and Justices Stevens and Ginsburg. None of the three dissenters is believed to own or operate a bus -- yes, that's correct, Justice Thomas pilots his own bus on those cross-country excursions mentioned a bit earlier. But, back to today's decision. Press coverage of this ruling may suggest that the Court is taking a less expansive view of Fourth Amendment rights in the aftermath of the September 11th terrorist attacks. With all due respect to those learned commentators, in my opinion this ruling would have turned out the same (or at least 5-4 in support of the identical holding) even if the attacks of September 11th had never occurred.

3. The Court unanimously ruled that punitive damages are unavailable to prevailing plaintiffs in suits brought against public entities under either the Americans with Disabilities Act or the Rehabilitation Act. Justice Scalia wrote the Court's opinion, which reasoned that both of these laws giving rise to public entity liability are contractual in nature (rather than tort-like in nature). Accordingly, because recovery of punitive damages is not a remedy that is typically available in a breach of contract action, punitive damages were not available. Justice Stevens wrote an opinion concurring only in the judgment, in which Justices Ginsburg and Breyer joined. Justice Stevens's criticisms of the majority's approach enabled Justice Scalia, in his majority opinion, to fire off a bunch of combative footnotes of the sort that he usually reserves for when someone dares to dissent from a majority opinion of his. (Of course, when Justice Scalia is himself in dissent, he allows the combativeness to rise up from the footnotes and permeate the actual text of his dissenting opinion.)

4. In a case that seemed to be a lot more fun back when it involved references to Gringott's Bank from the Harry Potter series, the Supreme Court today upheld the IRS's method of estimating the tip income that restaurant workers earn. The IRS's method, it may charitably be said, results in more taxes being paid both by the employee and by the employer. Yes, it's true, a restaurant worker's tip income is treated by the IRS as wages paid to the employee by the restaurant for purposes of calculating the FICA social security tax that the restaurant must pay to the government. Justice Breyer wrote the majority opinion in United States v. Fior D'Italia, Inc., No. 01-463 (U.S. June 17, 2002). Justice Souter wrote a dissenting opinion, in which Justices Scalia and Thomas joined. To see the Ninth Circuit's decision with its Harry Potter references, simply click here. (Ninth Circuit Judge Alex Kozinski deserves credit for the Harry Potter references, but it turned out to be all for naught, as the Supreme Court today reversed the result reached in his 2-1 opinion for the panel.)

5. Today's final decision was the Court's most closely contested ruling of the day, but the ruling won't have much application outside of California. The Court ruled 5-4, in an opinion by Justice Breyer, that state habeas corpus proceedings are pending both when actually before a state court for consideration and during the time the State's procedural rules provide for seeking further review in a higher court. As the Court's opinion explains, California has a unique procedure whereby, after a lower court denies collateral review of a criminal conviction and/or sentence, the petitioner's next step may involve initiating an original proceeding in a higher court. And, no strict statute of limitations governs the time in which such an original proceeding in a higher court must be initiated. Justice O'Connor joined with the more liberal four Justices in the majority opinion. Justice Kennedy filed a dissenting opinion on behalf of himself, the Chief Justice, and Justices Scalia and Thomas. The Court's majority ended up sending the case back to the Ninth Circuit for an evaluation of whether the petitioner's delay in seeking higher court review was reasonable under the circumstances. Under the majority's approach, this petitioner's federal habeas corpus petition may have been filed in a timely manner. Under the dissent's approach, it clearly was not filed in time and should have been dismissed as untimely.

SG's views requested: The Court requested the views of the Solicitor General of the United States on whether a federal court must compensate counsel under the Criminal Justice Act for pursuing state clemency proceedings. The Fifth Circuit held no, and the attorneys have now requested U.S. Supreme Court review. Who says the Court is only interested in disputes that have riveted the nation's attention?

Dare to predict the future?: Only two cases remain undecided from the Court's February 2002 sitting, and only two Justices have yet to write majority opinions for that session. Typically, during each argument session every Justice receives at least one majority opinion assignment. To make it more interesting, the two cases remaining from that session involve the constitutionality of executing the mentally retarded and the constitutionality of government-funded religious school vouchers. To make it even more interesting, the two Justices who have yet to write majority decisions from that sitting are Antonin Scalia and Anthony M. Kennedy. The betting money has Justice Scalia upholding the voucher program as legal and Justice Kennedy holding that executing the retarded can violate the Constitution.
Posted at 21:50 by Howard Bashman

RACIAL PREFERENCES IN DECIDING WHICH HIGH SCHOOL A STUDENT WILL ATTEND: The U.S. Court of Appeals for the Ninth Circuit on April 16, 2002 issued an opinion declaring illegal the use of race in determining which students will be admitted to oversubscribed high schools in Seattle, Washington. You can access that opinion here. Shortly thereafter, the Ninth Circuit issued an injunction prohibiting the use of a racial tie-breaker in high school assignments in Seattle. You can access that injunction here.

Today, in what could be described as a stunning about-face, the Ninth Circuit has vacated its injunction and its earlier ruling and has instead decided to certify to the Washington State Supreme Court a question of state law that the panel says must be resolved before the federal constitutionality of the preference system can be determined. You can access here the Ninth Circuit's opinion issued today in support of its certification order.
Posted at 16:20 by Howard Bashman

PROFESSOR VOLOKH ON SLATE.COM: UCLA School of Law Professor Eugene Volokh's essay for Slate Magazine is now available online here. The essay is entitled: "The Fourth Amendment Meets the War on Terror; Can the cops drive a Geiger counter down your street?"
Posted at 14:42 by Howard Bashman

THIRD CIRCUIT REVERSED IN DEATH PENALTY CASE: In a unanimous per curiam decision, the Supreme Court of the United States today reversed a ruling of the U.S. Court of Appeals for the Third Circuit that would have invalidated at least thirty death sentences in Pennsylvania. The Supreme Court is now sending the case back to the Third Circuit for further review. You can access the U.S. Supreme Court's per curiam opinion here. You can access the Third Circuit's original opinion here. (Note: The caption of the Supreme Court's opinion contains a typo stating that the case is on writ of certiorari to the Sixth Circuit, rather than the Third Circuit.) (Update: This error is now fixed on the U.S. Supreme Court's Web site, but you can view the originally-transmitted version of the decision, which contains the error, by clicking here.)
Posted at 14:21 by Howard Bashman

STATE BAR OF GEORGIA HONORS JUSTICE THOMAS: The State Bar of Georgia held its annual meeting this past weekend (in Florida, of all places), and in attendance on Saturday was Justice Clarence Thomas, who received the bar association's Amicus Curiae award, which is the group's highest honor. The Atlanta Journal-Constitution offers this report. The article mentions that Justice Thomas would like to become the Circuit Justice assigned to the U.S. Court of Appeals for the Eleventh Circuit, the federal appellate court that includes Georgia within its jurisdiction. Currently Justice Anthony M. Kennedy is assigned to the Eleventh Circuit. The article also says that Justice Thomas is looking forward to traveling to more places in the United States where Supreme Court Justices have never visited. As this earlier article from the Journal-Constitution explains, Justice Thomas owns a bus that he and his family use to tour the country during the summer months.
Posted at 13:38 by Howard Bashman

U.S. SUPREME COURT UPDATE: The Supreme Court of the United States issued five opinions today in argued cases, summarily affirmed a lower court's ruling in a redistricting challenge from Texas, and granted review in no new cases. The Court is due to issue more opinions on Thursday, June 20, 2002. Check back tonight for a full recap of today's developments at the Court.
Posted at 11:19 by Howard Bashman

ARTHUR ANDERSEN'S ODDS ON APPEAL: Today's issue of The Los Angeles Times contains this report on Arthur Andersen's chances on appeal to the U.S. Court of Appeals for the Fifth Circuit.

MORE FROM MICHIGAN ON FREE SPEECH VS. SEXUAL HARASSMENT: Detroit Free Press columnist Brian Dickerson today revisits a very interesting appeal pending in Michigan state court that pits the First Amendment's right to freedom of speech against that State's sexual harassment laws. You can access his column here.

JUSTICE SCALIA AND THE MORALITY OF THE DEATH PENALTY: I have finally gotten around to reading Justice Antonin Scalia's recent essay on the morality of the death penalty. It is definitely worth a look.

SOME SAD NEWS: Scott Shuger, a true pioneer of Internet journalism, has died at the age of 50 in a scuba diving accident. He is best known for having written the "Today's Papers" column for Slate Magazine. Today Slate offers this tribute to him.
Posted at 08:26 by Howard Bashman

IN MONDAY'S NEWSPAPERS: The Washington Post reports that Justice Anthony M. Kennedy would like to be the next Chief Justice of the United States. And while many people might share that ambition, Justice Kennedy has a far better chance of accomplishing it than most. You can access the Post's article here. In Monday's edition of The New York Times, columnist Bob Herbert criticizes the continued military detention of American al Qaeda Abdullah al-Muhajir, who has yet to be charged with committing any crime. You can access Mr. Herbert's column here.
Posted at 00:22 by Howard Bashman

Sunday, June 16, 2002
THE U.S. SUPREME COURT TOMORROW is scheduled to issue more opinions and orders. "How Appealing" will provide a complete wrap-up of all of tomorrow's newsworthy developments at the Court in a posting that you can find here tomorrow night. The Court has 19 argued cases left to decide and two weeks remaining before the scheduled start of its summer recess. Odds are that the Court will also announce more opinions sometime later this week. My post tomorrow night will confirm when the Court is due to issue opinions next after tomorrow. You can access a chart of the cases that remain to be decided at this link, courtesy of the fine appellate attorneys at Mayer, Brown, Rowe & Maw (f/k/a Mayer, Brown & Platt).

SOUTH CAROLINA ORDERED NOT TO BLOCKADE PLUTONIUM SHIPMENTS INTO THAT STATE: A federal district judge in South Carolina has ordered that State's governor not to block the federal government's shipments of plutonium from Colorado to South Carolina. On Saturday, news reports said that South Carolina's governor had ordered state troopers to prevent the plutonium shipments from coming into the State. Today's edition of The State, Columbia, South Carolina's daily newspaper, reports that a South Carolina-based federal district judge has ordered South Carolina not to block the plutonium shipments, because "[a]n arguably peaceful blockade * * * presents a target of opportunity for those with less peaceful intentions.'' In related news, South Carolina has appealed to the U.S. Court of Appeals for the Fourth Circuit from the judge's order allowing the plutonium shipments. No word yet from near South Carolina's borders on the arrest of any suspected terrorists who were hoping to cache in on the plutonium blockade.
Posted at 22:02 by Howard Bashman

A THANK YOU AND SOME NEWS: Before any more time passes, I must extend a very appreciative "thank you" to the kind people at the Paul L. Boley Law Library of the Northwestern School of Law of Lewis and Clark College in Portland Oregon. Recently they named "How Appealing" "our favorite new legal site." Wow! Turning now to some news, last Wednesday the Supreme Court of Iowa ruled 5-2 that indirect purchasers could sue Microsoft for anticompetitive overcharges allegedly imposed on the sale of the Microsoft Windows operating system. In so ruling, Iowa's highest court decided not to follow non-binding federal court decisions that allow only direct purchasers to sue for such overcharges. The Des Moines Register offers this report on the ruling. Finally for right now, today's issue of The Los Angeles Times contains an in-depth article on the practice of some state court judges to impose the death penalty even if the jury's advisory verdict recommends a penalty of life imprisonment. The U.S. Supreme Court, sometime within the next two weeks, will decide a case from Arizona that challenges the constitutionality of this practice. You can access here the decision of the Supreme Court of Arizona that the U.S. Supreme Court is now reviewing.
Posted at 12:13 by Howard Bashman

IN SUNDAY'S NEWSPAPERS: Harvard Law School Professor Laurence H. Tribe, who has literally written the book on federal constitutional law, has an op-ed piece in today's edition of The New York Times. Tribe's op-ed is entitled "Citizens, Combatants and the Constitution," and you can access it here. Meanwhile, the "Federal Diary" column contained in Sunday's edition of The Washington Post suggests that federal judges deserve significant pay raises. I wholeheartedly agree.
Posted at 00:37 by Howard Bashman

Saturday, June 15, 2002
FEDERAL MARSHALS SUE FEDERAL COURTS; PLUS, MANAGING THE DEATH PENALTY DOCKET: The Associated Press today offers two appellate court-related news stories. First, the union representing federal court security officers has sued the federal court system over the alleged wrongful firing of thirty-two security officers. See this report for details. Looks like it will be time to invoke the rule of necessity, which provides that if there would be no sitting judges who would not have to recuse themselves from hearing a case, then no judges need recuse themselves. (See footnote two of this decision for more information about the rule of necessity.) Second, the AP is running this report on the woman whose job at the U.S. Supreme Court involves preparing the "death lists" -- lists given to the Justices each week setting forth the names of the inmates scheduled to be executed in the week ahead. Although it may seem that last-minute requests for stays of execution are a regular feature of our nation's death penalty adjudication process, the U.S. Supreme Court usually has a working knowledge of these cases and the issues they present far in advance of any last-minute filing.
Posted at 23:00 by Howard Bashman

MORE COVERAGE OF CHIEF JUSTICE REHNQUIST'S REMARKS YESTERDAY: Today's edition of The Los Angeles Times contains this report on Chief Justice Rehnquist's remarks yesterday about the lawfulness of military tribunals during our nation's history. This evening at 7 p.m. eastern time, C-SPAN's wonderful program "America and the Courts" will be broadcasting a videotape of Chief Justice Rehnquist's remarks yesterday. According to C-SPAN's program guide, this evening's edition of the program "features Chief Justice Rehnquist and Judge [Patricia] Wald offering their perspectives on military and international tribunals. Judge Wald was a former judge at the International Criminal Tribunal for the former Yugoslavia. She also served on the U.S. Court of Appeals for the D.C. Circuit from 1979 to 1999. She was Chief Judge of that Court from 1986 to 1991." (Update: C-SPAN is now providing online access to Saturday's installment of "America and the Courts." You can access a video feed of the program by clicking here and then selecting the program of June 15, 2002.)
Posted at 10:06 by Howard Bashman

Friday, June 14, 2002

My colleagues join in my decision but not in my grammar: D.C. Circuit Judge David B. Sentelle knows the rules of grammar. But, relying on a case from the Second Circuit to the same effect, Judge Sentelle chooses to ignore those rules when it comes to setting forth the plural of the last name of plaintiffs Thelma and Christina Paraskevaides.

As Judge Sentelle explains in the first footnote of his opinion issued today in a suit against the Four Seasons Hotel in Washington, D.C.:

The author recognizes that the rules of grammar dictate that to create the plural form of a proper name that ends in an "s," one must add an "es." E.g., The Chicago Manual of Style section 6.5 (13th rev. ed. 1982). The plural of "Paraskevaides" would therefore be "Paraskevaideses." However, the author finds the name "Paraskevaideses" so distracting that he chooses to ignore the rule. See In re Gaston and Snow, 243 F.3d 599, 601 n.1 (2d Cir. 2001). No such willingness to ignore the rules of the English language should be imputed to Judge Garland or Senior Judge Silberman.
At least Judge Sentelle was kind enough to absolve his fellow panel members of any complicity in his intentional grammatical miscue.

For lawyers, the Internet provides not only pornography but also the ability to squabble over personal jurisdiction: Put something on the Internet and it becomes accessible from almost anywhere. Yesterday this site had its biggest traffic day ever, and that included a whole bunch of visits from various foreign countries, including Estonia and Uruguay. But enough about me. In another appeal decided today, the D.C. Circuit ruled that defendant Ameritrade could be held subject to personal jurisdiction in D.C.'s federal district court if Ameritrade received a significant amount of business from computer users in D.C. The court explained:

But Ameritrade maintains that those transactions do not occur in the District of Columbia. Rather, the firm declares, Ameritrade's business is conducted "in the borderless environment of cyberspace." "Cyberspace," however, is not some mystical incantation capable of warding off the jurisdiction of courts built from bricks and mortar. Just as our traditional notions of personal jurisdiction have proven adaptable to other changes in the national economy, so too are they adaptable to the transformations wrought by the Internet.
Luckily for Ameritrade, the court's consideration of personal jurisdiction was rendered immaterial by the plaintiff's failure to serve his summons and complaint properly on Ameritrade. Thus, the court's opinion concludes:

Ameritrade is quite wrong in treating "cyberspace" as if it were a kingdom floating in the mysterious ether, immune from the jurisdiction of earthly courts. Nevertheless, in this case Ameritrade is saved from the jurisdiction of the district court by a much more mundane problem: the plaintiff simply failed to serve the corporation properly. For that reason, and for that reason alone, the judgment of the district court is affirmed.
And for what non-gratuitous reason did I mention pornography, you must now be wondering? Well, an opinion addressing similar personal jurisdiction concerns issued today from the U.S. Court of Appeals for the Fourth Circuit in a case that involved, according to the court, a company that "creates and markets adult photographs of female models for distribution over the Internet."

As the first paragraph of the Fourth Circuit's decision explains:

The question presented in this appeal is whether a Georgia-based Internet Service Provider subjected itself to personal jurisdiction in Maryland by enabling a website owner to publish photographs on the Internet, in violation of a Maryland corporation's copyrights. Adapting the traditional due process principles used to determine a State's authority to exercise personal jurisdiction over out-of-state persons to the Internet context, we hold that in the circumstances of this case, a Maryland court cannot constitutionally exercise jurisdiction over the Georgia Internet Service Provider. Accordingly, we affirm the district court's order dismissing the complaint against the Internet Service Provider for lack of personal jurisdiction.
Do these two decisions, both issued today, appear to be in tension with one another? Suffice it to say that courts have only recently begun to grapple with the very difficult issue of what are the far-flung locations, if any, where defendants can be held liable in damages for activities that involve the Internet.

Here's a reason for Indian tribes to remain unincorporated: The U.S. Court of Appeals for the Ninth Circuit today ruled that an unincorporated Indian tribe is not a a citizen of any state and cannot be sued in federal court on the basis of diversity of citizenship jurisdiction. Apparently this is the majority rule among the federal courts, although a few federal trial courts have decided to the contrary. According to the Ninth Circuit, the company that was seeking to sue the unincorporated tribe in today's case argued that "the decisions underlying the majority rule offer little in the way of reasoning in support of their conclusion that an Indian tribe is not a citizen of any state." Does the Ninth Circuit's opinion do a better job of offering reasoning? Decide for yourself here.

No office hours today: According to this report, George Washington University Law School Professor Jonathan Turley is prohibited from having anyone visit his office due to a Ninth Circuit appeal he is handling that relates to that supposedly mysterious military installation near Groom Lake, Nevada known as "Area 51."
Posted at 23:04 by Howard Bashman

THE CHIEF JUSTICE ADDRESSES MILITARY TRIBUNALS: Today Chief Justice William H. Rehnquist, speaking to judges and lawyers in Williamsburg, Virginia, addressed the issue of military tribunals. The Chief Justice is quite an expert on this nation's legal history, and you can read coverage of his remarks here.
Posted at 17:35 by Howard Bashman

PROVIDING EXTRA TIME FOR MINORS TO SUE OVER SEXUAL ABUSE: Yesterday the Supreme Court of Minnesota ruled 5-2 that Minnesota's six-year statute of limitations for sexual abuse claims does not begin to run until a minor reaches 18 years of age. The ruling thus gives a person who was sexually abused as a youth until the age of 24 to file suit against the abuser. In so ruling, Minnesota's highest court reversed the decisions of the trial court and the State's intermediate appellate court. You can access the Minnesota Supreme Court's ruling here.
Posted at 15:50 by Howard Bashman

ONE PERSON'S SEXUAL HARASSMENT MAY BE ANOTHER'S FREE SPEECH: A reader from Michigan has forwarded the link to this column from today's edition of The Detroit Free Press. Columnist Brian Dickerson reports on an oral argument yesterday in the Michigan Court of Appeals in a case presenting the question whether the sexually offensive remarks attributed to the plaintiff's colleagues were protected speech under the First Amendment. Before dismissing this issue out of hand, it is important to note that the Supreme Court of Michigan, according to the column, thought the issue significant enough that it directed Michigan's Court of Appeals to address the subject on remand. You can access an amicus brief filed in the case here. (Interestingly, the amicus brief cites as support two law review articles by UCLA Law Professor Eugene Volokh, whose excellent blog you can access here.)

And, from Minnesota, the Twin Cities-based Web site -- a high-energy media watch-dog site -- has today linked to "How Appealing" for my post two nights ago about the M60-A3 tank repossession case that the Seventh Circuit recently decided. If you've never been to's site -- and I hadn't until today -- it is certainly worth a visit.
Posted at 13:04 by Howard Bashman

AN EMBRYONIC DISPUTE: The Supreme Court of the State of Washington yesterday decided a dispute between a husband and wife undergoing divorce proceedings over the fate of two cryopreserved preembryos, which is how that court described two donor eggs fertilized by the husband's sperm that have not been implanted in a woman. Anyone wishing to learn the fate of these two cryopreserved preembryos can access the court's opinion here, a concurring opinion here, and a dissenting opinion here.
Posted at 06:40 by Howard Bashman

Thursday, June 13, 2002

The American al Qaeda: InstaPundit earlier this evening posted about a Cox News Service report which, though rather vague, indicates that a federal district judge based in New York City told the lawyer for American al Qaeda detainee Abdullah al-Muhajir that the detainee's habeas corpus petition would not be granted. The way that I understand the report is that the New York-based federal district judge denied the habeas petition because the federal government had, before the judge announced a decision on the merits of the petition, relocated the detainee from New York City to South Carolina. In cases like this, habeas corpus petitions must be addressed to the federal district judge who presides over the locale where the prisoner is currently being held. Thus, the denial appears to have been for lack of jurisdiction over the detainee's jailor, rather than because the petition lacked merit. And that's not to imply that the petition has merit, but rather only that a South Carolina federal judge will have to be the one to decide.

The death penalty: The U.S. Supreme Court has put off for one more week a decision whether to grant review of a ruling by the U.S. Court of Appeals for the Third Circuit that, if allowed to stand, may require at least 30 death sentences to be set aside in Pennsylvania. Today marked the fourth time this case has come before the Supreme Court's conference, during which votes on whether to grant or deny review of cases occur. Interestingly, the Supreme Court's docket in this case reveals that on June 10, 2002 that Court's Clerk's Office made a request that the record in the case be sent from the Third Circuit to the High Court. The very next day, however, the Supreme Court canceled its request for the record. This suggests that whichever Justice or Justices may have been on the fence about whether to grant or deny review have reached a decision, and thus review likely will either be granted or denied in this case on Monday, June 17, 2002.
Posted at 21:55 by Howard Bashman

MOUSSAOUI TRANSCRIPT ONLINE: The Washington Post has placed on its Web site a transcript of today's hearing in the Zacarias Moussaoui case. At that hearing, the trial judge ruled that Moussaoui was competent to represent himself without the assistance of a lawyer. You can access the transcript here. Among the warnings the trial court gave to Moussaoui was that his lack of learning in the law might cause him to fail to preserve issues for appellate review.
Posted at 19:19 by Howard Bashman

FALSE IMPRESSION?: The U.S. Court of Appeals for the Ninth Circuit today reinstated the claim of an actor from the television show Baywatch who alleged that Playgirl Magazine (sorry, there are some links that this blog, consistent with its PG-13 rating, doesn't provide) created a false impression of him by placing his photograph on the cover of its January 1999 issue without his permission. Thanks to the miracle of modern technology, the court manages to include a photo of the magazine's cover in question as the final page of the court's opinion. You can access the Ninth Circuit's opinion here.

TYPOS: Anyone who writes anything is bound to have typos. Even judges in their judicial opinions. Sometimes the error can be numerical. Other times the error might be using the word "Civil" when in fact the word "Criminal" is intended, as in the very first sentence of this opinion issued yesterday by the U.S. Court of Appeals for the Fifth Circuit.
Posted at 15:07 by Howard Bashman

IN THE NEWS: Two local newspapers quote me in their editions of today as a case in which I am representing the defendant proceeds to the appellate stage. You can access the articles here and here.

HELP IS ON THE WAY: The horribly understaffed U.S. Court of Appeals for the Sixth Circuit moves another step closer to having one of its eight judicial vacancies filled. Sixth Circuit nominee Professor John M. Rogers of the University of Kentucky College of Law has a hearing today before the Senate Judiciary Committee. Click here for a chart showing the status of all current federal appellate judicial nominations. Of course, the Sixth Circuit nominee closest to Senate confirmation is U.S. District Judge Julia Smith Gibbons. The Judiciary Committee favorably reported her nomination to the entire Senate on May 2, 2002 by a vote of 19-0. She is now one of three federal appellate judicial nominees awaiting a vote from the full Senate.

READ THE TRANSCRIPT: A transcript of Judge Richard A. Posner's interview on the C-SPAN program Booknotes is now available online. You can access the transcript here. It is truly worth a look.
Posted at 11:55 by Howard Bashman

Wednesday, June 12, 2002

No tank you: Circuit Judge Terence T. Evans of the U.S. Court of Appeals for the Seventh Circuit is one of the best writers currently serving on the federal appellate bench. Today he made a substantial contribution to his fine body of work when he delivered that court's decision in Smith v. United States, No. 01-4000 (June 12, 2002). His opinion begins:

EVANS, Circuit Judge. Perched atop an M60-A3 tank parked on his farm, Randell L.D. Smith struck a proud pose as a newspaper reporter snapped his picture. At the age of 76, Smith was a bit of a fixture in the local news in Bloomington, Illinois. After he acquired the tank from the U.S. Army--one that once roared across the hot desert sands of Iraq during the Persian Gulf War--the Bloomington paper published several articles (with pictures), reporting that Smith had refurbished the tank for display on his farm. Passersby could see it from the street. In Bloomington it seemed that everyone knew about Smith and his tank. But the Army had no idea what was going on--it thought the local V.F.W. post had the tank. When the Army eventually discovered that Smith had the tank (a year after the Bloomington paper reported as much), government agents and the Illinois National Guard promptly repossessed it.
This being America, Smith sued the federal government, seeking return of the tank and damages for personal injuries he claimed to have suffered "when the agents roughed him up during the repossession."

And speaking of that repossession:

Eventually, the Army discovered that Smith, not the VFW, had the tank. Alarmed by this news, the Army deployed two agents to Smith's farm. The agents found that the tank remained partially operational, and, importantly, was within firing range of the Central Illinois Regional Airport. The agents notified members of the National Guard, who came to Smith's farm and towed the tank. Smith claims that when he objected, the agents restrained him and, at one point, threw him to the ground. The Army subsequently destroyed the tank during target practice.

Smith brought his suit against the government pro se, alleging that it had no right to seize the tank. He sought its return and a modest $23 million in damages for injuries he said he sustained.
For those of my readers who may be concerned that it's too easy for the common Joe, Dick, or Smith to obtain his own tank, the opinion reassures us that federal law prohibits the Army from donating a tank to a private citizen. (Do I sense consternation among Second Amendment individual rights' enthusiasts?) Before concluding, the opinion also makes mention of the Posse Comitatus Act, a statute that might have renewed relevance given the domestic war against terror. In short, this decision has something for everyone and would clearly merit inclusion in today's Obscure Store of appellate decisions (if only such a thing existed).

One man's free exercise of religion is another man's prohibited homeless campground: While Rudolph Giuliani may have ended his service as Mayor of New York City, he still manages to turn up as a party to this round-up's second most interesting decision. The Fifth Avenue Presbyterian Church of New York City, located at the corner of Fifth Avenue and 55th Street in Manhattan, designated two areas of its outdoor property where the homeless were allowed to sleep at night. According to today's opinion from the U.S. Court of Appeals for the Second Circuit, "The Church views its outdoor space as a sanctuary for the service-resistant homeless who prefer not to sleep in shelters."

The city's vision of Fifth Avenue was apparently somewhat different. In November 2001, the city notified the church that the homeless could no longer sleep on the church's outdoor property. And, in December 2001, the city removed the homeless from that location and threatened with arrest anyone who refused to leave voluntarily. The church sued, and the U.S. District Court for the Southern District of New York entered a preliminary injunction that prohibited the police from removing the homeless from large portions of the church's property. Today the Second Circuit affirmed that preliminary injunction.

Top-notch appellate attorney Carter G. Phillips argued the case for the church, presumably in a pro bono capacity. The Second Circuit concluded that "the Church has demonstrated a likelihood of success in establishing that its provision of outdoor sleeping space for the homeless effectuates a sincerely held religious belief and therefore is protected under the Free Exercise Clause." You can access the Second Circuit's opinion here.

Not the script he would have written: The final case in tonight's round-up is a ruling from Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit that reinstates a copyright infringement action against Steven Bochco and his co-defendants. A certain U.S. District Judge Breyer was sitting by designation on this Ninth Circuit panel, meaning that only eight Justices will vote on any cert. petition here. The plaintiffs claim that Bochco's show "City of Angels" was too similar to scripts and script ideas that the plaintiffs had proposed to him. Memo to Mr. Bochco: If David Lynch could successfully direct a movie about an old guy who rides 300 miles on a lawn mower tractor to visit his ailing brother, perhaps you could profit from a screenplay involving an old guy who acquires a Gulf War tank to honor World War II veterans, only to have the government reclaim the tank and destroy it in target practice. Just a thought.

In other news: The State of Virginia tonight executed Walter Mickens Jr., whose death penalty challenge the U.S. Supreme Court denied earlier this year by a 5-4 vote. The Associated Press offers this report. Mumia is still seeking to be free, but it's not entirely clear how this approach will achieve that goal.

Thanks to Law Professor Jeff Cooper for his kind words posted today on his blog. He wrote: "There are lots of blogs by lawyers out there (who'd have thought they'd have the time?), but few of them actually focus on legal issues. One exception is Howard J. Bashman, who offers superb coverage of the federal courts of appeals, the workings of which form the subject of much of my scholarly writing." For the reader who visited from the domain identified as "," a very special welcome! I'm not sure you will find much mention of New Zealand here (except for today, it would seem), but perhaps that's not why you're here. Relatedly, Colorado fire blogger N.Z. Bear explained yesterday that the abbreviated portion of his nom de plume in fact doesn't stand for New Zealand. And to the reader who emailed today to say "Thank you for setting up your Appellateblog. It is wonderful, informative and fun," I say thank you for writing.
Posted at 21:59 by Howard Bashman

COMING SOON IN TONIGHT'S APPELLATE ROUND-UP: 1. No tank you. 2. Providing overnight camp grounds for the homeless equals free exercise of religion. 3. Suit against Steven Bochco given greenlight. Details to follow soon.
Posted at 19:56 by Howard Bashman

NJ STATE APPELLATE COURT ENFORCES INS SECRECY: In a ruling based on the Supremacy Clause of the United States Constitution, the Appellate Division of the Superior Court of New Jersey today held that INS regulations mandating that the names of post-September 11th detainees be kept secret trump New Jersey's Right-To-Know Law. You can access this decision here.
Posted at 19:49 by Howard Bashman

TARGETING GUN MANUFACTURERS: The Supreme Court of Ohio today ruled 4-3 that a lower court had improperly dismissed a lawsuit brought by the City of Cincinnati against gun manufacturers to recover for the costs of gun-related violence. Other state and federal appellate courts have upheld the dismissal of such suits. You can access this decision here.
Posted at 14:19 by Howard Bashman

I AGREE, AND SO DO WE: A gimlet-eyed former colleague of mine has brought to my attention that Justice O'Connor's majority opinion in Devlin v. Scardelletti, No. 01-417 (U.S. June 10, 2002), contained in its initial version Justice O'Connor's statement "I agree" on page eleven of the slip opinion. A revised version of the opinion now found on the U.S. Supreme Court's official Web site corrects the statement to "we agree." Does this indicate that Justice O'Connor's position did not begin as the majority view? There is no way to know for sure.
Posted at 11:35 by Howard Bashman

A VICTORY FOR FREE SPEECH, OR A SERIOUS EROSION OF COPYRIGHT PROTECTION?: Last Friday, the en banc U.S. Court of Appeals for the Fifth Circuit ruled 9-6 that the organization that drafted model building codes which various towns had adopted as law could not sue for copyright infringement a Web site that posted the text of those towns' codes. You can access the opinion here. The majority's opinion begins:

EDITH H. JONES, Circuit Judge: The issue in this en banc case is the extent to which a private organization may assert copyright protection for its model codes, after the models have been adopted by a legislative body and become "the law". Specifically, may a code-writing organization prevent a website operator from posting the text of a model code where the code is identified simply as the building code of a city that enacted the model code as law? Our short answer is that as law, the model codes enter the public domain and are not subject to the copyright holder's exclusive prerogatives. As model codes, however, the organization's works retain their protected status.
Because the Web site reprinted the model codes "as law," rather than "as model codes," the majority dismissed the code-writing organization's copyright infringement claims, thereby reversing the trial court's ruling to the contrary.

Posted at 10:25 by Howard Bashman

THANK YOU!: Yesterday this blog had more visitors than on any other day in its short history save one -- the day several weeks back on which "How Appealing" somehow garnered two mentions on InstaPundit. As a result, in the wee hours of this morning our page visit count surpassed 10,000, which is not too bad given that this blog has only been in existence for one month and six days, the first two weeks of which were spent in relative obscurity.

Over the past several days, emails have arrived from two former U.S. Supreme Court law clerks about the site. UCLA School of Law Professor Eugene Volokh, the most active contributor to the excellent blog The Volokh Conspiracy, sent an email to several law professor mailing lists stating: "I've recently been reading and enjoying 'How Appealing,', a timely, lively, thoughtful, and well-written Web log that contains short reports and commentary on recent appellate decisions, both from the Supreme Court and other courts. I have no business or social relationship with the author, but I think he does very good work, so I thought I'd let my colleagues know about this." Thank you, Eugene! Another former U.S. Supreme Court law clerk who now teaches at a law school located within the jurisdiction of the U.S. Court of Appeals for the Seventh Circuit writes: "I appreciate the site (which I discovered through Eugene). It's very helpful and insightful. I'll be sending all my students." A young man who currently works for a state supreme court justice in a western state has just started a new blog that will appeal to fans of coffee and the law. He was kind enough to mention "How Appealing" in his very first post! I can confirm that caffeine did come in handy from time to time during my appellate clerkship, especially while working on cases involving the Federal Energy Regulatory Commission (sorry, FERC). Finally, a lawyer practicing in Lancaster County, Pennsylvania writes: "Just had to let you know what a terrific blog you've got." Thanks to you all.

In other news, here's additional coverage of the proceedings that caused me to be in court for most of yesterday. This news report is the front page story in today's edition of The Delaware County (Pa.) Daily Times. The trial judge has promised a ruling in this case before the end of today, so I could be back in the newpapers tomorrow, when I might even have something to say to the press.
Posted at 08:19 by Howard Bashman

MORE DEATH PENALTY NEWS: Tonight the State of Virginia is due to execute Walter Mickens, who was on the losing end of a 5-4 ruling that the U.S. Supreme Court issued on March 27, 2002. Today's edition of The Washington Post contains a very lengthy article on the case. The New York Times today also contains a story about the case. The trial lawyer for Mickens had served as the murder victim's lawyer in an unrelated matter immediately before he was assigned to serve as Mickens's lawyer in the murder case. The Supreme Court ruled by the smallest of margins that, for the defendant to prevail, he had to establish that a conflict of interest adversely affected his counsel's performance. And that, the majority concluded, Mickens had failed to prove.
Posted at 00:39 by Howard Bashman

Tuesday, June 11, 2002
DEATH PENALTY STAY; REDISTRICT AWAY: This evening the Supreme Court of the United States stayed the execution of a Texas convict due to be killed tonight. The convict's lawyers had argued in their stay papers that their client was mentally retarded. The Supreme Court is expected to rule on the constitutionality of executing the mentally retarded sometime before the end of this month. You can access a news report on this evening's stay here. In other news, the Court of Appeals of Maryland, that state's highest court, today issued an order that declared illegal the legislative redistricting map proposed by Maryland's governor. You can access the court's order here. You can click here to access a report on the Maryland court's action that will be published in Wednesday's edition of The Washington Post.
Posted at 22:54 by Howard Bashman

APPELLATE ROUND-UP FOR JUNE 11, 2002: The U.S. Court of Appeals for the First Circuit today issued an opinion affirming the dismissal of claims that the operator of a tannery brought against the author and publisher of the best-selling book "A Civil Action." As the opinion explains at its outset: "Objecting to his portrayal in Jonathan Harr's best-selling book 'A Civil Action,' an account of toxic tort litigation over contaminated well water in Woburn, Massachusetts, that allegedly caused the death of several children, [tannery operator] John J. Riley, Jr., sued Harr and his publisher for defamation and related torts." You can access the opinion here.

The U.S. Court of Appeals for the District of Columbia Circuit today issued a decision of its own involving a well-known litigant, former President Clinton. Part one of the D.C. Circuit's opinion begins:

This case involves appellant Dolly Kyle Browning's "long-standing friendship" with former President Clinton--a friendship she alleges "included an extramarital, sexual relationship"--and her "semi-autobiographical novel" in which the female protagonist has a long-standing extramarital affair with the governor of a southern state.
Clinton appointee David S. Tatel wrote the D.C. Circuit's opinion, which reinstated two of the plaintiff's eight claims against former President Clinton. Larry Klayman represented the plaintiff-appellant. David E. Kendall, John D. Aldock, and Floyd Abrams represented the defendants-appellees. You can access the D.C. Circuit's opinion here.

In a second decision issued today, the D.C. Circuit by a 2-1 vote upheld the National Labor Relations Board's order concluding that volunteers at the Seattle Opera were in fact employees under the National Labor Relations Act. Judge Randolph disagreed:

Randolph, Circuit Judge, dissenting: This is an important case to volunteers throughout the country and to the organizations they assist. By one estimate, more than 109 million Americans in 1998 freely gave their time and energy to help in the arts and humanities, in education, health, youth development, environment, and so forth. Some volunteers receive nominal payments to defray their expenses. Now the National Labor Relations Board, at the instigation of a union representing regular employees, has decided that volunteers are also "employees" and are entitled to bargain collectively over wages, hours and working conditions. The rule of "law" embedded in the Board's decision is this: if volunteers are paid a flat amount to reimburse them for expenses, the payment is "wages" and the volunteers become "employees." In my view, the Board's decision is arbitrary and ridiculous. The majority opinion only compounds the Board's errors. I therefore dissent.
Then, at the close of his dissent, Judge Randolph writes: "Something has gone terribly wrong in this case. Courts review Board decisions to correct such aberrations. Too bad we did not perform that function today. What fate awaits this precedent must now depend upon the inevitable petition for rehearing en banc." You can access this decision here.

While it might at first appear schizophrenic, federal appellate judges do sometimes write both the lead opinion and a dissenting opinion in the very same case. Here's the latest example, which issued today from the U.S. Court of Appeals for the Fifth Circuit.

Six Feet Under, the appeal. For reasons that will be immediately obvious to fans of that excellent HBO series, this opinion issued yesterday by the Commonwealth Court of Pennsylvania brought the show to mind.
Posted at 18:30 by Howard Bashman

BACK FROM COURT AND POTENTIALLY IN THE NEWS: I spent most of today in court with a colleague representing the defendant on a motion in a case that has been in the news a bit recently. Observing were many members of the print, television and radio news media. So, if you live in or near Philadelphia, Pennsylvania, you may get a glimpse of me on this evening's or tonight's local news, or may read some coverage of the matter in tomorrow's newspapers. I have no comment for the media other than what was said in court, but I do reserve the right to discuss the accuracy of the press coverage in connection with today's proceedings.
Posted at 16:04 by Howard Bashman

IN MONDAY'S NEWSPAPERS: The Washington Post contains a very well-written op-ed piece that bemoans the deadlock that both Democratic and Republican nominees to the U.S. Court of Appeals for the District of Columbia Circuit have recently faced. Both the Washington Post and The New York Times contain analysis of the legal plight facing the American Al Qaeda suspect whose arrest was disclosed yesterday (WP here -- NYT here). Interestingly, he is in a brig in South Carolina, which puts him in the jurisdiction of the U.S. Court of Appeals for the Fourth Circuit, along with the first and second American Talibans.
Posted at 00:19 by Howard Bashman

Monday, June 10, 2002
MY LEGAL INTELLIGENCER COLUMN FOR JUNE 2002 IS NOW AVAILABLE ONLINE: Simply click here to access it. This month's column takes a close look at the pending U.S. Supreme Court case that challenges the constitutionality of certain restrictions on the free speech rights of candidates for elected judicial office. You can access additional resources on the case and that topic by clicking here.
Posted at 23:30 by Howard Bashman

U.S. SUPREME COURT WRAP-UP FOR JUNE 10, 2002: Today the Supreme Court of the United States announced opinions in six cases, granted certiorari in two cases (including one with a name worth mentioning), and noted probable jurisdiction in an appeal and related cross-appeal. The Court is due to announce opinions again on Monday, June 17, 2002. After today, nineteen argued but undecided cases await the issuance of opinions. For the Court's final two weeks, it is likely that the Court will deliver opinions at least two times each week. And now for my summary of today's noteworthy developments.

Overview of today's six opinions. Today was a good day for: Justice O'Connor, who returned triumphant from her induction this past Friday into the National Cowgirl Hall of Fame to wield her decisive fifth vote in today's most interesting case; for fans of passionate dissents from Justice Scalia; for those who enjoy unusual voting alliances in civil rights cases; for the Third Circuit, on whose side of circuit splits the Court ruled in favor of twice; and for a client of mine that is currently opposing cert. in a case whose outcome will be controlled by one of today's decisions. Today was a bad day for: Justice Stevens, who lost his chance to write even one majority opinion from the Court's sitting that began in late November 2001; individuals who have been wrongfully convicted of sex offenses; and disabled workers who wish to occupy jobs that are especially dangerous for them. The specifics of today's six decisions follow.

1. STILL IN KANSAS: Today's most interesting decision further proves that Kansas remains on the cutting edge of dealing with criminals who may be suffering from mental illnesses or defects. Today the Court finally decided what as of yesterday had been its oldest undecided case, McKune v. Lile, No. 00-1187 (U.S. June 10, 2002). (For those keeping score, distinction of oldest undecided case has now shifted to the ERISA case of Rush Prudential HMO, Inc. v. Moran, No. 00-1021 (U.S.) (argued January 16, 2002)).

In Kansas, convicted sex offenders must participate in a sex abuse treatment program that requires them to accept responsibility for the crimes for which they have been convicted and list all other prior sexual activities, even if they would thereby disclose uncharged criminal offenses that the state could then choose to prosecute. In exchange, the convicts in the program get to reside in a medium security institution, have televisions in their cells, and live in two-man cells. Convicts who refuse to participate are sent to high security institutions, must live in four-man cells, and receive fewer visitors from outside the prison, fewer job opportunities, and fewer other privileges. Respondent Robert G. Lile, who had been convicted of rape and related offenses, sued, claiming that the treatment program's enticements violated his Fifth Amendment right against self-incrimination. By a vote of 5-4, the High Court disagreed.

Justice Kennedy wrote the opinion announcing the judgment of the Court, in which the Chief Justice and Justices Scalia and Thomas joined. Justice O'Connor wrote an opinion concurring in the judgment in which she said that she agreed mostly with Justice Stevens' dissent, saw little reasoning in Justice Kennedy's opinion that would attract her vote, but nonetheless was voting with Justice Kennedy anyway. As a result of the breakdown of the voting in this case, the decision establishes little precedent beyond holding that programs like the one in Kansas are legal, but anything worse might lose Justice O'Connor's vote. Speaking of which, informed U.S. Supreme Court watchers had thought it a lock that Justice Stevens would be writing the majority opinion in this case. Chances are that he originally found himself in the majority but failed to hold onto Justice O'Connor's vote. Some evidence of this can be found in Justice Kennedy's opinion. Take, for example, the concluding portion of the first full paragraph on page 16 of Justice Kennedy's opinion. It states:

As here, the inmate in Woodard claimed to face a Hobson's choice: He would damage his case for clemency no matter whether he spoke and incriminated himself, or remained silent and the clemency board construed that silence against him. Unlike here, the Court nevertheless concluded that the pressure the inmate felt to speak to improve his chances of clemency did not constitute unconstitutional compulsion.
Justice Kennedy's use of the phrase "unlike here," which I have placed in bold type, indicates to me that he originally wrote his opinion as a dissent from a ruling that would have struck down the Kansas program as an unconstitutional compulsion. Whoever was in charge of removing the dissent's dissenting aspects appears to have missed this one. (Oops!). The Court's opinion in this case is certainly worth a look, because it involves a very closely contested issue and one of the most important constitutional rights that citizens possess (sorry, Second Amendment fans, no offense intended).

2. DON'T SEEK PERMISSION TO KILL YOURSELF FROM US: The Americans with Disabilities Act does not require an employer to allow an employee with a liver condition that makes it especially dangerous to be exposed to certain toxins to work in a job requiring exposure to such toxins, the Court unanimously ruled in a decision by Justice Souter. The employee, in essence, was arguing that the ADA gave him the right to work in a job that was especially dangerous to him because the employer couldn't take into account his disability that made the job so dangerous. The Court unanimously refused to facilitate the employee's self-destruction, so the employee will simply have to enjoy whatever perverse pleasure losing in the U.S. Supreme Court can provide.

3. CLEAR RULES VS. A DAY IN COURT FOR EVERYONE: A colleague of mine who is substantially responsible for the existence of this blog (but not its contents -- I'm solely to blame for that) regularly observes that appellate courts tend to rule in a way that fosters, rather than discourages, litigation. Today, one of the Court's most skilled dissenters, Justice Scalia, passionately makes that very point:

The most pernicious aspect of today's decision, however, is not its result, but its reasoning. I mentioned in a recent dissent the Court's "penchant for eschewing clear rules that might avoid litigation." Today's opinion not only eschews such a rule; it destroys one that previously existed. It abandons the bright-line rule that only those persons named as such are parties to a judgment, in favor of a vague inquiry "based on context." ("The label 'party' does not indicate an absolute characteristic, but rather a conclusion about the applicability of various procedural rules that may differ based on context"). Although the Court does not say how one goes about selecting the result-determinative "context" for its oh-so-sophisticated new inquiry, I gather from its repeated invocation of this phrase that the relevant context in the present case is the "goals of class action litigation." This means, I suppose, that, in a labor case, who are the parties to a judgment will depend on the goals of the labor laws, and, in a First Amendment case, who are the parties to a judgment will depend on the goals of the First Amendment. Or perhaps not. What makes this exponential increase in indeterminacy especially unfortunate is the fact that it is utterly unnecessary.
The second to last paragraph of Justice Scalia's dissent also managed to work in a dig at the Ninth Circuit: "Courts of appeals cannot be staffed with too many judges without destroying their ability to maintain, through en banc rehearings, a predictable law of the circuit." Justice O'Connor wrote the majority opinion in this case, Devlin v. Scardelletti, No. 01-417 (U.S. June 10, 2002), in which the Court held that non-named class members in a class action who have objected to a settlement's approval can appeal without having intervened in the case. The Court's ruling thus sided with the Third Circuit's approach in such cases. In related news, it does not appear that Justice Scalia will be invited to visit the National Cowgirl Hall of Fame anytime soon.

4. A SURPRISE FROM JUSTICE THOMAS?: Each Term at least one decision must have an unexpected line-up of Justices in the majority. Today, in National Railroad Passenger Corp. v. Morgan, No. 00-1614 (U.S. June 10, 2002), Justice Thomas wrote the majority opinion. Although the decision was unanimous in part, the vote was 5-4 in support of the Court's holding that hostile work environment claims should be governed by a rather flexible statute of limitations accrual rule. And who were the other four Justices joining in this aspect of Justice Thomas's majority opinion? Why, it was Justices Stevens, Souter, Ginsburg, and Breyer, of course. Justice O'Connor wrote the dissent on behalf of herself and the three other Justices with whom Justice Thomas most often sides in close cases. The lack of intemperate rhetoric between Justices O'Connor and Thomas suggests that Justice Thomas's invitation to visit the National Cowgirl Hall of Fame remains open. My good friend Roy T. Englert, Jr. argued this case for Amtrak, and I think that this ruling should count at least as a partial victory (and perhaps even a total victory -- I'm willing to keep an open mind on that) for him.

5. ALIENAGE DIVERSITY JURISDICTION, MEET THE BRITISH VIRGIN ISLANDS: The Court unanimously ruled in JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd., No. 01-651 (U.S. June 10, 2002), that corporations organized under the laws of the British Virgin Islands qualify as "citizens or subjects of a foreign state" for purposes of the federal alienage diversity jurisdiction statute and the coordinate provision of Article III of the United States Constitution. The Chief assigned this decision to Justice Souter, ostensibly because the case required review of many antiquated sources of law, making it the perfect gift for one who disdains the use of a computer. This case arose from the Second Circuit, which decided to go in its own direction on this issue and hold that BVI companies aren't citizens or subjects of a foreign state. When both the government of the United Kingdom and the government of the United States filed amicus briefs in support of reversal, the Second Circuit's approach was doomed. The Second Circuit had the chance to take the issue en banc and cure the circuit split itself, but the Second Circuit takes the fewest cases en banc and is on record as preferring to suffer 100 reversals over the pain of a single en banc. (That last statement might be a bit of an exaggeration, but the Second Circuit truly doesn't like en bancs. Maybe we can merge it with the Ninth Circuit and produce a circuit with a reasonable number of en banc cases?) Because Justice Souter wrote two unanimous opinions this week, his invitation to visit the National Cowgirl Hall of Fame certainly remains open.

6. TODAY'S LEAST INTERESTING OPINION: Could a decision be even less interesting than one deciding whether a BVI corporation is subject to alienage diversity jurisdiction in federal court? I answer that with a resounding "yes!" Franconia Associates v. United States, No. 01-455 (U.S. June 10, 2002), involved the Housing Act of 1949, the Farmers Home Administration, the Emergency Low Income Housing Preservation Act of 1987, and a ruling from the U.S. Court of Appeals for the Federal Circuit. Justice Ginsburg wrote the Court's opinion (apparently Justice Breyer either found a way to be conveniently absent from the room or received an even worse case in April 2002), and no one cared enough to dissent. I plan on reading this case more carefully as soon as I have completed my review of the Court's 104-page Verizon telephone regulation decision from several weeks ago. And don't worry, there will be no more references to the National Cowgirl Hall of Fame in tonight's posting.

Cert. granted/Jurisdiction noted: The Court today also granted cert. in two cases and noted jurisdiction in a redistricting case involving an appeal and cross-appeal. The redistricting case arises from Mississippi and involves a challenge to a redistricting plan said to favor Republicans. If I have any readers in Mississippi, please email me at appellateblog -at- and I will, assuming sufficient interest, provide much more in-depth coverage of Mississippi-based redistricting challenges. The big case granted review today was Washington Legal Foundation v. Legal Foundation of Washington, No. 01-1325. That case presents another Fifth Amendment takings challenge to IOLTA programs. To those who hate acronyms, as I do, IOLTA stands for Interest On Lawyers' Trust Accounts. Most every state requires lawyers and law firms to open trust accounts for safekeeping of client funds. In many states, the interest on such accounts (where the amount is too small to pay to the depositor) is instead aggregated and paid over to organizations providing legal services for the poor. Some clients don't like that, and have challenged the program as unconstitutional. (Click here for my recent post about a similar IOLTA case in which the Fifth Circuit divided 7-7 over whether to grant rehearing en banc.) Let's not overlook the name of the case granted review today: Washington Legal Foundation v. Legal Foundation of Washington. Regardless of which side wins, the opposing parties have such similarly sounding names that each will be able to plausibly claim victory. The name of this suit reminds me of my former favorite U.S. Supreme Court case name, Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982). The other case in which cert. was granted today could also turn out to be a big deal. It involves a dispute between a California ranch owner and the U.S. E.P.A and Army Corps of Engineers over wetlands protection. The agencies fined the farmer for conducting deep plowing of wetlands without a permit. Tisk, tisk! It's not known whether wine connoisseurs on the Court will be required to recuse themselves as such deep plowing is done to prepare vineyards and orchards. Justice Kennedy, for whatever reason, recused himself from considering this cert. petition.
Posted at 20:57 by Howard Bashman

GOODBYE SECOND AMENDMENT FOOTNOTES; IT WAS NICE TO KNOW YOU: The Supreme Court of the United States denied review today in the two cases in which the Solicitor General of the United States filed briefs asserting that the Second Amendment to the United States Constitution protects an individual's right to possess guns. This is a victory for the United States government, which had urged the Court to deny review of these cases. Reuters offers this report.
Posted at 13:23 by Howard Bashman

SOMETIMES EMAIL WORKS, and amazingly sometimes it doesn't: Attorneys in the Philadelphia region who were hoping to see my "Upon Further Review" column in today's edition of The Legal Intelligencer got something of a surprise -- it's not there. Turns out that The Legal was having problems with the email account to which its columnists send their work, and of course the worst was assumed about me -- that I left town with no forwarding address and had failed to turn in anything for publication. Thankfully, The Legal expects to have sufficient room to publish my column in tomorrow's paper now that the mix-up has been brought to its attention. And, in especially good news for my column this month, the pending U.S. Supreme Court decision that is the subject of the column was not among the six cases that the High Court decided today. So, my column will be just as timely and full of insight tomorrow as it would have been today. In the interim, to access columns of mine from prior months, simply click here.
Posted at 12:23 by Howard Bashman

NO BYLINE STRIKE HERE: One of my favorite writers, Pulitzer Prize-winning author Louis Menand, has a Talk of the Town piece in the brand new issue of The New Yorker magazine about the byline strike that occurred last week at The Washington Post. You can access Mr. Menand's essay here.
Posted at 06:42 by Howard Bashman

Sunday, June 09, 2002
LOOKING AHEAD TO MONDAY: On Monday, June 10, 2002, the Supreme Court of the United States is due to announce additional opinions and orders. Check back here on Monday night for a complete wrap-up of the Court's actions.

TO READERS OF MY LEGAL INTELLIGENCER COLUMN: The Legal Intelligencer's print edition of Monday, June 10, 2002 contains the latest installment of my monthly column on appellate developments. This month's column addresses the constitutionality of certain speech restrictions on candidates for elected judicial office. Sometime during the next three weeks -- and perhaps as early as today -- the U.S. Supreme Court will announce its ruling in Republican Party of Minnesota v. Kelly, No. 01-521 (U.S.). That case presents a First Amendment free speech challenge to a regulation that prohibits any candidate for judicial office from "announc[ing] his or her views on disputed legal or political issues." That regulation exists in Minnesota, Pennsylvania and various other states. My column concludes that the regulation should be struck down as unlawful under the First Amendment. For those of you who don't have access to The Legal Intelligencer, my column will be posted online here by Tuesday evening.

Here are links to additional resources about the case and this issue: "On the Docket" from Northwestern University's Medill School of Journalism provides this useful introduction to the Kelly case. You can access many of the U.S. Supreme Court briefs filed in the Kelly case at this link. You can access the entire amicus brief filed by attorney Erik S. Jaffe, from which I quote in my column, at this link. You can access the U.S. Supreme Court's online docket in the case here. You can access Minnesota's version of the regulations at issue in the case at this link. You can access the ruling of the U.S. Court of Appeals for the Eighth Circuit, which the U.S. Supreme Court is reviewing in Kelly, at this link. You can access the transcript of the U.S. Supreme Court oral argument in Kelly at this link. Finally, once the U.S. Supreme Court announces its ruling in Kelly, this link to the Court's decision will begin to function.
Posted at 23:36 by Howard Bashman

IN TODAY'S MAIL: Just received the following email from a reader in Dallas, Texas:

Just started visiting your web site a little over seven days ago. I am enjoying it thoroughly. In fact, your reference a few days ago to two Ninth Circuit cases brought me a surprise. Counsel in the case against * * * turns out to be an old friend from college days many years past. I was able to contact him in his Los Angeles office to have a nice long overdue talk. One question - keeping your web site going daily - when do you have time to engage in the practice of law?
That's an excellent question. The business section of today's New York Times contains a very interesting article about David Boies in which a number of lawyers criticize him for having taken on too much work. But this blog doesn't threaten that result for me.

The master of the blogging craft, Glenn Reynolds of Instapundit fame, today posted here his response to the most frequently asked questions by journalists. (Apparently The New York Times is on the verge of publishing an article about blogging, so check Monday's edition closely. (Update: Here's the link to Monday's NYT blogging article.)) In response to the question "how do you find the time to do this?" he responds:

It takes less time than people think. Much of InstaPundit gets squeezed into the cracks of the day: with always-on Internet connections at home and at work, all I need is five or ten free minutes to come up with a post. * * * There are a lot of wasted five-minute intervals in most people's days. I've managed to put more of mine to work. Of course, it still takes up time. My other hobbies have suffered somewhat. But that's okay. I have a lot of hobbies.
I wholeheartedly agree. In fact, my roles as chief appellate lawyer at a large law firm and appellate columnist for a major regional daily legal newspaper require that I be aware of what's happening in the world of appellate litigation. So, the research part of this Web site I've pretty much always been doing. And most of my posts are quite short; those don't require very much time. My lengthier posts are written at night, when, after 9:15 p.m. on most nights, I'm the only one still awake at home.

True, it does take time to stay abreast of developments in the world of appellate litigation. But I'm constantly surprising myself with how often newly-issued decisions contain ideas or holdings that are relevant to appeals on which I am working. Other times, I will be working on an appeal that will cause me to remember a relevant decision that I had read many years ago. The combined effect of all of this extracurricular, but nonetheless work-related, reading is that I tend to have a fairly good handle on a rather large variety of substantive and procedural areas of the law. And that often allows me to provide meaningful help from the start to lawyers who come to me with their appellate problems and concerns.

In sum, the "research" that produces this blog is something that I have always done, and for very selfish reasons -- namely, to be successful in my chosen field of law. But the writing of this blog I do for a selfless reason, which is to bring the most topical aspects of what I know to people who share my interests in the law and public policy. And I'm glad to have you among that group.
Posted at 21:32 by Howard Bashman

THE POWER OF BLOG: I have been at this endeavor for one month and three days now (but who's counting?) and have just celebrated this blog's 8,500th page view. Stay tuned for 10,000 sometime in the week ahead. During the past few weeks, "How Appealing" has been experiencing anywhere between 400 to 900 page views per weekday. Among this blog's faithful readers are people who access the Internet using the federal judiciary's Internet gateways, law professors (some law schools even assign separate Internet Protocol addresses to each professor whereby the IP address identifies the professor by name -- how scary), lawyers at large and small law firms from throughout the United States, newspaper and magazine reporters from general interest and law-related publications, and individuals who have somehow found their way here from Slovakia, Taiwan, Japan, Israel, Iceland, and Singapore, to name just a few of the many the foreign locales from which readers have visited "How Appealing" over the past month.

I appreciate your interest in this site more than you can imagine. Having a large and enthusiastic readership motivates me to try to make this blog the very best that a blog devoted to appellate litigation can be. Of course, since "How Appealing" remains the only blog devoted to appellate litigation, it's not that hard to be the very best right now. But that hasn't stopped me from trying. And, at the same time, I can't help feeling that if only more people knew about this blog -- law students, lawyers, judges, judicial law clerks, professors, and regular people interested in public policy and the law -- the readership numbers would be going through the roof. So, dear reader, I officially give you permission to tell others who might be interested in "How Appealing" of this site's existence.

THE POWER OF BLOG, PART TWO: The other day on this blog I wrote that the word count feature of Corel's WordPerfect program counted the text FRAP 37(a)(7)(B) as five words, whereas Microsoft Word counted that very same text as two words. My earlier post explains why this could make quite a difference to lawyers who practice in federal appellate courts. Somehow -- owing to the power of blog -- my post came to the attention of the moderator of a discussion list on a site known as WordPerfect Universe. The moderator reprinted my post and sought comments from his list's members. Within twenty-four hours someone on that list came up with a proposed fix for the problem. Pretty cool! "How Appealing" has now done its first official good deed for verbose appellate lawyers. Questions do remain pending for Tom Goldstein, Mike Fisher, and Ed Rendell. If they only would find the time to answer the questions that I have recently addressed to them, then the power of blog would be established beyond any doubt.
Posted at 18:48 by Howard Bashman

ANOTHER "TELL ALL" BOOK BY A FORMER U.S. SUPREME COURT LAW CLERK: So what if the Term in question was 1936 to 1937 and the Justice for whom the law clerk worked was James Clark McReynolds? Today's edition of The Washington Post contains a book review of "The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in FDR's Washington." You can read excerpts from the book here.

MERCY PLEA: Challenges to New York state's death penalty law are now beginning to reach that state's highest court. Today's issue of The New York Times contains this report on the second such case to reach that court.
Posted at 09:27 by Howard Bashman

Saturday, June 08, 2002
AT HIGH COURT, FEDERALISM MEANS WAR: At least that's what U.S. Supreme Court correspondent Linda Greenhouse says in an essay in the Week in Review section of Sunday's New York Times. You can access her essay here. The essay includes an interesting discussion about whether "personal ideology rather than fidelity to legal principles best explains the justices' behavior" when they publicly vow to keep dissenting from an entire body of precedent.
Posted at 23:49 by Howard Bashman

LATER TODAY ON C-SPAN: This evening on C-SPAN's excellent program "America and The Courts," which is due to air from 6:57 p.m. to 7:58 p.m. eastern daylight time today (that's what C-SPAN's Web site says), you can see the address that Justice John Paul Stevens gave on May 6, 2002 to the U.S. Court of Appeals for the Seventh Circuit's Judicial Conference in Chicago. According to C-SPAN's program guide, Justice Stevens "spoke about his memories of Justice Byron White, who died last April. Justices Stevens and White served on the U.S. Supreme Court together for 18 years." If you miss the show on TV, you can access the program online next week at this link.
Posted at 16:56 by Howard Bashman

SUIT FILED TO CHALLENGE SELECTION OF FEDERAL JUDGES FOR CALIFORNIA: Today's edition of The Los Angeles Times reports that a "conservative legal foundation filed suit Friday challenging a bipartisan procedure established by President Bush's top political operative in California and the state's two Democratic U.S. senators to select federal judicial candidates." You can access the full story here. It is doubtful that this suit raises issues properly addressed to the Judicial Branch of the federal government, given that the Constitution expressly assigns the tasks of selecting and confirming federal judges to the other two branches of government. So, in all likelihood, this suit will be going nowhere fast.
Posted at 09:36 by Howard Bashman

SOME SAD NEWS FROM MINNESOTA: Yesterday a Minnesota state trial court sentenced a former judge on the Minnesota Court of Appeals to serve sixty-nine months in prison for having improperly taken for his own use a large sum of money while serving as trustee for a mentally retarded woman's estate. (One news story reports the amount as "about $300,000," while others say the amount exceeded $400,000.) The Minneapolis Star Tribune offers this report. The Saint Paul Pioneer Press offers this news report and a columnist's essay on the news.
Posted at 09:19 by Howard Bashman

RSS/XML IS FINALLY HERE (I HOPE!): For those loyal readers who have been urging "How Appealing" to offer an RSS/XML feed, I have good news for you. Your news aggregators can now pick up this blog's RSS/XML feed at beginning with this post, and from now into the future. Thanks for your persistence, and enjoy. (P.S. It remains the case that, as someone who is much more technologically clueless than this site probably indicates, I have no idea how or even whether my RSS/XML feed is working. Please drop me an email at appellateblog -at- to let me know. Thanks!)
Posted at 01:19 by Howard Bashman

FOR WHOM THE BELLE TOLD (a/k/a get me re-write, part 2): FindLaw has posted the federal government's brief that contends Zacarias Moussaoui is competent to defend himself without counsel on criminal charges pending against him in the U.S. District Court for the Eastern District of Virginia. Page two of the government's brief states: "All tolled, the defendant has filed a number of pro se motions and letters to the Court, including six that were provided to the Government."
Posted at 01:14 by Howard Bashman

IN SATURDAY'S NEWSPAPERS: On the op-ed page of The New York Times, law professor Harvey Rishikof advocates the creation of "a specialized, secure and protected federal court dedicated to matters involving domestic and international security." You can access his op-ed piece here.

Saturday's edition of The Washington Post contains two appellate-related items of interest to its local readers. An editorial criticizes the D.C. Court of Appeals for its chronic backlog of cases and extremely lengthy delays in resolving even uncomplicated appeals. You can access the editorial here. And, an article reports on the latest developments in the controversy surrounding ex parte contacts between legislators and the jurists serving on Maryland's highest state court in connection with a legislative redistricting appeal pending before that court. You can access the article here. You can view my prior post on this controversy here.
Posted at 00:29 by Howard Bashman

Friday, June 07, 2002
RETIREMENT RUMORS: U.S. Supreme Court correspondent Tony Mauro offers this report on the current crop of U.S. Supreme Court retirement rumors. Given how regularly these sort of rumors have been arising, someday one is bound to turn out true.
Posted at 23:47 by Howard Bashman

THIS JUST IN FROM THE NINTH CIRCUIT: The U.S. Court of Appeals for the Ninth Circuit has today decided two interesting appeals. In the first case, a defendant convicted of cocaine possession and distribution had appealed claiming that "he was denied due process of law when the district court had lead defense counsel removed from the courtroom, especially given the nature of that removal." As the Ninth Circuit's opinion explains: "A careful examination of the record * * * reveals a persistent pattern of surly, disruptive and contemptuous behavior by a defense counsel with a history of antagonizing judges. Over much of the trial and immediately prior to her removal, counsel was repeatedly warned about yelling at the court and making sarcastic remarks." The defendant argued on appeal that the "sight of his lawyer being led off in handcuffs must have prejudiced the jury against him." By a 2-1 vote, the Ninth Circuit disagreed and affirmed the conviction. You can access the opinion here.

The second case will be of interest to aspiring professional authors. (There seem to be so many of you in the blogosphere that I have put the phrase in bold type to catch your attention.) As Judge Reinhardt explains in his introduction to the panel's opinion, "This case presents the question whether a publisher retains the right to reject an author's manuscript written pursuant to a standard industry agreement, even though the manuscript is of the quality contemplated by both parties." The author in question, to quote again from the opinion, had written "a treatise on the intriguing subject of the law of fiduciary duty." Does the author win or does corporate legal publishing behemoth-defendant West Publishing Company prevail? Click here to find out.
Posted at 15:06 by Howard Bashman

FREE AGAIN: My visit to prison has concluded. And now KYW Newsradio reporter (and suburban bureau chief) Jay Lloyd wants to interview me for his radio reports to run next Tuesday morning in advance of the hearing scheduled to occur that day in a case that has previously been in the news. Sorry, I have no comment. We are trying that matter in the courtroom, not in the press. (As an aside, I must observe that Jay has a wonderful radio voice and is among my favorite KYW Newsradio reporters.)

INTRODUCING THE MOST RECENT INDUCTEE INTO THE NATIONAL COWGIRL HALL OF FAME: The Associated Press is reporting that Justice Sandra Day O'Connor was today inducted into that organization, whose museum, located in downtown Forth Worth, Texas, opens to the public on Sunday. This time of year is the most difficult to draw Justices away from Washington, D.C., so this honor must have meant much to her. You can access the AP report here. (Update: Here's an even more detailed AP report posted later in the day.)
Posted at 14:02 by Howard Bashman

PARENTAL RIGHTS: Two state court parental rights cases made news yesterday. The Supreme Court of Illinois ruled that grandparents still have no right to court-ordered visitation of a grandchild even if their child (who of course was one of the grandchild's two parents) has died. You can access this ruling here. A bit farther to the west, the Supreme Court of California ruled that a man who helped to raise a young boy since birth is the child's lawful father even though he is not the child's biological parent. You can access this ruling here.
Posted at 09:59 by Howard Bashman

AMISH TO APPEAL: A Common Pleas Court judge in Cambria County, Pennsylvania ruled yesterday that members of a fledgling, 80-member Amish community known as the Swartzentruber Amish must place state-mandated reflective orange triangles on the back of their horse-drawn black buggies. The members of this group had argued that such a ruling would violate their First Amendment rights because the gaudy color of the symbol violates their simple lifestyle and displaying the symbol would indicate that they rely on it rather than on God for their safety. Lawyers for the group are promising an appeal to the Superior Court of Pennsylvania. The Pittsburgh Post-Gazette offers this report on yesterday's developments. The Johnstown (Pa.) Tribune-Democrat is also covering the story.
Posted at 08:34 by Howard Bashman

Thursday, June 06, 2002
CRUNCH TIME: With just three weeks left before the U.S. Supreme Court's summer recess and 25 argued cases remaining to be decided, there is little doubt that the normally hardworking Justices and law clerks at the Court must now be toiling at their jobs nearly around the clock. Earlier this week Joan Biskupic, formerly U.S. Supreme Court correspondent for The Washington Post and now U.S. Supreme Court correspondent for USA Today, wrote a particularly insightful report on what life is like at the Court as the clock ticks down to the wire. You can access Ms. Biskupic's report here.

THE BATTLE OVER ABORTION CAM WEB SITES RAGES ON: UCLA Law Professor Eugene Volokh is currently visiting the home of our nation's capitol, which allows me to be among the first (and maybe perhaps even the first) to leap to his defense in response to a FindLaw's Writ commentary posted today by Laura Hodes, who currently works as a U.S. District Court law clerk based in Chicago. Let me begin by saying that I find the concept of abortion Web cams as distasteful as anyone, but nevertheless I agree with Professor Volokh that someone who is out in public where he or she is visible to others has no ability to prohibit his or her image from being freely transmitted to others. See Professor Volokh's posts here, here, here, here, and here for a reasoned explanation of his views. By contrast, I find little that I can agree with in Ms. Hodes's essay beyond the point that abortion Web cams aren't a very nice thing. I don't find her legal reasoning to be very persuasive, and I'm troubled by the fact that she refers to her chief ideological adversary as "Stanford Law School Professor Eugene Volokh." While I'm sure Stanford Law School would be most pleased to have Professor Volokh among its faculty, the UCLA School of Law is the educational institution that actually does have him among its faculty. And that's quite fitting, because UCLA is both his undergraduate and law school alma mater.

TWO NINTH CIRCUIT EN BANC RULINGS TODAY: One of the many great things about the U.S. Court of Appeals for the Ninth Circuit is the large number of cases that the court takes en banc. "En banc" is a French term that means that a case is being heard by all active judges on the court, rather than just a three-judge panel. Of course, the Ninth Circuit has such an inordinately large number of active judges that en banc cases aren't heard by the full court; instead they are heard and decided by eleven-judge en banc panels. Anyway, today the Ninth Circuit issued two en banc decisions. One was unanimous and involved a subject matter so repugnant that to describe the case would cause my blog to lose its current PG-13 rating. So, you'll have to check it out for yourself if you're able to attend NC-17 movies. The other decision involved whether an illegal alien convicted for the petty theft of cigarettes and beer had thus committed an aggravated felony that justified an increase in the length of his criminal sentence for illegal reentry to the country. An en banc panel consisting of a fair number of the Ninth Circuit's most liberal judges ruled 7-4 that no increase in sentence was appropriate. Judges Kozinski, Rymer, T.G. Nelson and Kleinfeld dissented. I sense a potential cert. petition here. We'll keep an eye on the S.G.'s Office to see whether one is eventually forthcoming.

SOLO EFFORT: Max Power had a post the other day that bemoaned the fact that his blog just had a single contributor. He and I generally seem to be of the same mind about most things, but I'm not sure I'm ever going to be receptive to turning over the keys to this thing to someone else. And you, dear reader, probably understand why. Haven't you ever launched into reading a new post on The Volokh Conspiracy only to think, hey, this doesn't sound like Eugene! And about four outta five times that I have that reaction it's not him, but rather one of that blog's other contributors. That variety might make the site great for some, but others may prefer a site featuring (dare I say this) only Eugene. Some bloggers can successfully pull it off (a collaboration, that is), like the good folks at The Blog of the Century of the Week (each of whom has his own page there), but most can't. And this is my very long-winded way of saying thanks, but no thanks, to the kind person who emailed me a few weeks back to ask if I was interested in guest contributors to the blog. Not yet, and maybe not ever. But keep emailing; I do quote heavily from those from time to time.

SPEAKING OF EMAIL: Today the email inbox was ringing off the hook/dinging away like crazy/or whatever one is supposed to say when lots of emails arrive. From my faithful reader in Kaohsiung, Taiwan: "Reading your website is like attending a marvelous feast where there's so much wonderful food one can't eat it all." Another reader writes: "I found your blog through Eugene Volokh. Although I'm not a lawyer, I find legal issues fascinating, and I really enjoy how your blog points me to good/interesting reads." He then proceeds to pose a few tough questions about yesterday's Oregon ruling involving Phillip Morris, which I hope to be able to ponder and perhaps answer someday soon. A lawyer practicing in Denver, Colorado writes: "As an attorney who includes appellate practice in his repertoire, I enjoy your informative and (of course well written) blog." Even fellow bloggers can join in; the author of just sent a timely email stating "BTW: Love your blog!" Thanks everybody!

TOMORROW I GO TO PRISON: Just to visit a client, though. I'm reliably advised that one's ability to accomplish blogging while in prison is quite limited, so I'll try my best to keep you updated about any noteworthy appellate developments during the balance of the day when I'm not behind bars.
Posted at 21:24 by Howard Bashman

APPEARING SOON: Just dispatched to my editor at The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, the text of my monthly column on appellate developments to be published on Monday, June 10, 2002. This month's column, tentatively entitled "Freeing the Speech of Candidates for Elected Judicial Office," analyzes the pending U.S. Supreme Court case of Republican Party of Minnesota v. Kelly, No. 01-521. A decision in that case will issue sometime over the next three weeks and could issue on June 10, 2002. I hope I have correctly predicted its outcome!

THANKS TO ALL MY READERS who have been inundating me with emails today, including one based in Taiwan (who thankfully shares at least one language in common with me).

THE ASSOCIATED PRESS reports that the September 11th terrorist attacks have made life even more difficult for refugees fleeing persecution. You can access the report here.

"NEVER MIND": Today a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit ruled that a Michigan state trial court judge couldn't successfully invoke Emily Litella's famous last words after having stated on the record that the evidence against a defendant charged with murder didn't suffice to establish first-degree murder. You can access the Sixth Circuit's quite interesting ruling here.
Posted at 14:19 by Howard Bashman

TIME FOR A WRITTEN CONSTITUTION?: c|net is reporting that a government television commission in the United Kingdom has banned a Microsoft Xbox advertisement from television as too shocking. You can access the report here.
Posted at 09:37 by Howard Bashman

IN TODAY'S NEWSPAPERS: The Los Angeles Times in today's edition runs an op-ed piece about the recent three-judge ruling of the U.S. District Court for the Eastern District of Pennsylvania striking down the Children's Internet Protection Act. You can access the op-ed piece here. (Fans of UCLA Law Professor Eugene Volokh will be pleased to know that he's mentioned in this op-ed. Click here to access his blog.) Today's edition of The New York Times contains an op-ed piece by Anita F. Hill (remember her?). Coincidentally, yesterday The New York Review of Books posted online the contents of its June 27, 2002 issue. In that issue (and available online here) is Jane Mayer's review of David Brock's controversial book "Blinded by the Right: The Conscience of an Ex-Conservative."
Posted at 08:19 by Howard Bashman

Wednesday, June 05, 2002
JUST LIKE THE MOVIES: Last night I watched the excellent Australian film import Lantana. Proving once again that truth can give fiction quite a run for its money, the U.S. Court of Appeals for the Fourth Circuit today decided a habeas corpus appeal whose facts rival those of Lantana's plot. In Rubin v. Gee, No. 01-6411 (4th Cir. June 5, 2002), a Fourth Circuit panel was presented with a case whose facts defy abbreviated description. Fourth Circuit Chief Judge Wilkinson, writing for himself and District Judge Howard, sitting by designation from the U.S. District Court for the Eastern District of North Carolina, ruled under the egregious facts of this case that the district court properly granted the petitioner's writ of habeas corpus even though the petition was governed by the strict standards of the Antiterrorism and Effective Death Penalty Act of 1996 (known colloquially to lawyers as the AEDPA). As Chief Judge Wilkinson explained: "Indeed, statutory terms of art fail to fully capture the appalling nature of the attorneys' misconduct here and the effect it had on Rubin's subsequent trial. What transpired requires us to take the rare and extraordinary step of granting Rubin the writ of habeas corpus under the rigorous standards of section 2254." Later in his opinion, Chief Judge Wilkinson observed: "[Two particular lawyers'] representation of Rubin was more than ineffective -- it was a perversion of the attorney-client relationship." Notwithstanding those harsh words in the majority opinion, Circuit Judge Diana Gribbon Motz dissented. You can access the Fourth Circuit's ruling here (in PDF format) and here (in HTML format). (Music video in this posting's first link is courtesy of Alien Ant Farm.)

A RARE EVENT: The U.S. Court of Appeals for the Second Circuit today affirmed the invalidation of a New York State law on the ground that it constituted an unconstitutional bill of attainder. The court explained: "In finding Chapter 190 to be a bill of attainder, we are mindful of the infrequency with which this constitutional provision has been used to strike down legislation. That rarity is attributable to the extraordinary scarcity of legislation of the type presented in Chapter 190." You can access the decision here.

Finally for tonight, thanks to Rafe Colburn of for his very kind mention of "How Appealing" earlier today. He wrote: "One of the better topical weblogs I've discovered recently is How Appealing, Howard J. Bashman's daily take on the goings on in the world of appellate litigation." That mention led to first time visits from readers in a whole bunch of foreign countries, allowing me to refer repeatedly to this handy online guide to Internet suffixes.
Posted at 21:16 by Howard Bashman

MAYBE LAWSUITS CAN VANQUISH TERRORISM?: The U.S. Court of Appeals for the Seventh Circuit today has affirmed "the viability of a claim brought under the never-tested 18 U.S.C. sec. 2333, which allows U.S. nationals who have been injured 'by reason of an act of international terrorism' to sue therefor and recover treble damages." This ruling is likely to be viewed as big news. You can access the opinion here. (Update: The New York Times, on June 6, 2002, ran this report on the Seventh Circuit's decision.)
Posted at 14:50 by Howard Bashman

BREAKING NEWS: The Oregon Court of Appeals today has issued an opinion that reinstates a $79.5 million punitive damages award against Phillip Morris, Inc. and in favor of the widow of a deceased smoker. You can access the opinion here.
Posted at 13:59 by Howard Bashman

THE ONION'S TAKE ON DAUBERT: This week's online edition of The Onion contains an article entitled "National Science Foundation: Science Hard." Between this article and several other very funny ones, including a brief mention of new cola-flavored Sprite, The Onion this week is certainly worth a look.
Posted at 12:57 by Howard Bashman

YI YI: Garrulous lawyers don't like the fact that the Federal Rules of Appellate Procedure limit the number of words that can be included in an appellate brief. As readers of my monthly column on appellate developments already know, I am a staunch believer in the overriding importance of brevity. (See my column "A Concise Guide To Writing Better Appellate Briefs," published in The Legal Intelligencer on February 11, 2002.) Now it appears that one's brand of word processing software may directly influence the size of one's word count -- and, no, I'm not rehashing the Microsoft Word doesn't count footnotes in selected text debate from several years back.

According to an appellate litigation listserve to which I subscribe, the most recent versions of Corel's Word Perfect count the text FRAP 37(a)(7)(B) as five words, whereas Microsoft Word would count that very same text as two words. That difference, three extra words every time a lengthy statutory or rule subsection is mentioned, can really add up over the course of a long brief. To me, it's self evident that FRAP 37(a)(7)(B) should count as only two words. Let's see how long it will take for Corel to correct this issue.

IN TODAY'S NEWSPAPERS: Today's issue of The Washington Post (whose staffers are today conducting a byline strike) contains: (1) an editorial praising the D.C. Circuit's ruling last Friday that struck down down a ban on demonstrations in parts of the Capitol grounds; (2) this report on the Fourth Circuit oral argument yesterday on whether a federal public defender should have access to the so-called second American Taliban; (3) an Associated Press report on the ruling of the Supreme Court of New Mexico declaring unconstitutional that state's ban on concealed handguns (can't find the actual ruling online yet, unfortunately); and (4) an Associated Press report that a federal district judge in Michigan has ruled that Michigan's sex offender registry is unconstitutional (update: courtesy of FindLaw, you can access the actual ruling here).

In an essay sure to shock many political liberals, John Fund writes in The Wall Street Journal that it's time for President Bush to start standing up to California's Senators, especially when it comes to the issue of federal judicial nominations. You can access today's installment of John Fund's Political Diary here.
Posted at 08:24 by Howard Bashman

Tuesday, June 04, 2002
QUITE QUOTIDIAN: Some federal district courts only allow plenary admission to attorneys admitted to practice law in the state in which the federal district court is located. Other federal district courts allow plenary admission to attorneys admitted to practice in the highest court of any state. If you have received plenary admission to practice in a federal district court located in a state in which you are not otherwise admitted to practice, you should take a look at this 2-1 decision issued yesterday by the U.S. Court of Appeals for the Sixth Circuit. The State Bar of Michigan sought to charge with unauthorized practice of law an attorney admitted to the practice of law in the state of Texas who, after obtaining plenary admission to the bar of the U.S. District Court for the Western District of Michigan, principally handled bankruptcy cases in that Michigan federal court. Does this story have a happy ending for the lawyer? Click here to find out.

Finally for tonight, the U.S. Supreme Court has decided to postpone for another week a decision whether to grant certiorari to review a Third Circuit ruling that threatens to overturn more than thirty death penalty sentences imposed in the state courts of Pennsylvania. You can access my original posting on this matter here.
Posted at 22:14 by Howard Bashman

CNN is offering this report on today's oral argument in the U.S. Court of Appeals for the Fourth Circuit over whether a federal public defender should have access to the so-called second American Taliban. He is currently being held at the Naval Station Brig in Norfolk, Virginia. A Virginia federal district court last week ordered the government to allow the public defender to have access to the prisoner.
Posted at 16:09 by Howard Bashman

RED BADGE OF SHOPLIFTING: The Superior Court of Pennsylvania has overturned a trial judge's order that required a woman to wear a red badge that stated "convicted shoplifter." The opinion is unreported and thus not available online, but you can access a news report about the ruling here. (Apologies to Stephen Crane for this posting's title.)
Posted at 11:24 by Howard Bashman

ALAN DERSHOWITZ IN NEW ORLEANS: Yesterday the U.S. Court of Appeals for the Fifth Circuit heard oral argument in the appeal of former Governor Edwin Edwards, who is challenging a jury verdict that convicted him of federal criminal offenses. The New Orleans Times-Picayune offers this report on yesterday's appellate oral argument.
Posted at 09:43 by Howard Bashman

UNCLE FESTO: The U.S. Court of Appeals for the Federal Circuit may wish to cry uncle now that the U.S. Supreme Court yesterday GVR-ed nine cases that will soon be headed back to the Fed. Cir. for reconsideration in light of the High Court's ruling last week in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. This development should at least assuage the concern of those who were wondering what the Federal Circuit would do with all of the spare time sure to result from yesterday's U.S. Supreme Court decision that cut back on the scope of the Federal Circuit's appellate jurisdiction. Of course, as in many sports, when it comes to jurisdiction it's best to play within the white stripes. For the rest of my complete wrap-up of yesterday's notable U.S. Supreme Court developments, just scroll down this page a tiny bit more.
Posted at 08:08 by Howard Bashman

Monday, June 03, 2002
TWO DOWN, TWENTY-FIVE TO GO: Today the Supreme Court of the United States issued two opinions in argued cases, leaving twenty-five more opinions to be issued in the three weeks that remain before the Court embarks on its summer recess. Last year, with three weeks to go before the summer recess, the Court had twenty opinions remaining. Also today, the Court granted review in three cases, and Justice Scalia, joined by the Chief Justice and Justice Thomas, dissented from two death penalty stays that the Court issued early last month in orders that then made no mention of any dissent. The Supreme Court will issue more opinions and orders on Monday, June 10, 2002. Plus, tonight's wrap-up includes mention of a very interesting decision issued today by Seventh Circuit Judge Frank H. Easterbrook.

ATTENTION NORMAL HUMANS: TODAY'S OPINIONS WERE IN REALLY BORING CASES: With that necessary disclaimer out of the way, let's launch into my summary of today's two rulings.

1. If I were forced to pick which of today's opinions was my favorite, I'd choose Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., No. 01-408 (U.S. June 3, 2002). For starters, Vornado products are really cool looking, and the look of those products was the reason why this suit got started. Holmes Group filed suit against Vornado in the U.S. District Court for the District of Kansas seeking a declaration that certain products that Holmes manufactured did not unlawfully look too similar to Vornado products. (FYI, the map of Kansas on the Kansas federal district court site is a must see.) Predictably, Vornado filed counterclaims asserting that its competitor's products looked far too similar. Vornado also filed a counterclaim alleging patent infringement.

The U.S. Court of Appeals for the Federal Circuit is a specialized federal appellate court. Unlike the twelve regional federal appellate courts, which hear appeals taken from federal district courts located within their geographical boundaries, the Federal Circuit's appellate jurisdiction is nationwide in scope but is limited to several rather narrow subject-matter categories. As relevant to today's decision, Congress gave the Federal Circuit exclusive appellate jurisdiction over appeals from final district court decisions where the district court had jurisdiction over a civil action arising under federal patent law. Thus, if the Holmes v. Vornado suit filed in Kansas federal district court arose under federal patent law, an appeal would properly go to the Federal Circuit. If the case did not arise under federal patent law, an appeal would go to Kansas' regional circuit court of appeals, the U.S. Court of Appeals for the Tenth Circuit.

In today's ruling, the Court unanimously concluded that Vornado's appeal from the trial court's ruling in Holmes's favor should have been taken to the Tenth Circuit, rather than to the Federal Circuit. Justice Scalia wrote the Court's opinion, in which the Chief Justice and Justices Kennedy, Souter, Thomas and Breyer joined in full and in which Justice Stevens joined in part. Justice Stevens wrote a separate opinion concurring in part and concurring in the judgment. Justice Ginsburg, joined by Justice O'Connor, wrote an opinion concurring in the judgment. In essence, Justice Scalia concluded that because the patent claim arose as a counterclaim asserted by the defendant, instead of as a claim asserted by the plaintiff, the Federal Circuit had no appellate jurisdiction, and the Tenth Circuit would have to decide the appeal. So, today's ruling holds that where the plaintiff asserts a patent claim, any appeal must go to the Federal Circuit. But, if the only patent-related issue arises from the defendant's having asserted a patent counterclaim, any appeal must go to the regional court of appeals.

My favorite passage from Justice Scalia's opinion: "It would be an unprecedented feat of interpretive necromancy to say that section 1338(a)'s 'arising under' language means one thing (the well-pleaded-complaint rule) in its own right, but something quite different (respondent's complaint-or-counterclaim rule) when referred to by section 1295(a)(1)." Necromancy indeed!

2. In SEC v. Zandford, the Court unanimously ruled (in an opinion by Justice Stevens) that a securities broker who was convicted of swindling an elderly man out of hundreds of thousands of dollars could be held civilly liable for securities fraud. That this ruling qualified as the newsworthy U.S. Supreme Court decision o' the day is persuasive evidence that today's opinions didn't offer much from which to choose.

Cert. granted in three cases: Today the Court granted review in three cases. 1. A case in which the Supreme Court of Utah reinstated a $145 million punitive damages award in an insurance bad faith case against State Farm Mutual Automobile Insurance Co. (You can access the state supreme court's opinion here.) Get ready fans and adversaries of large punitive damages awards! 2. The Solicitor General's office prevailed in obtaining review in a $600 million contract dispute between the federal government and the Navajo Nation. (Attention law students: the Supreme Court of the Navajo Nation appears to have a vacant law clerk position. Report to Window Rock, Arizona at once for interviews.) You can access the Solicitor General's cert. petition here. 3. Finally, the Court granted review of a Ninth Circuit case that posed the question whether "a police officer who conducts a coercive, custodial interrogation of a suspect who is being treated for life-threatening, police-inflicted gunshot wounds may invoke qualified immunity in a civil suit for damages under 42 U.S.C. section 1983." You can access the Ninth Circuit's decision here.

REMEMBER THOSE ORDERS FROM LAST MONTH? WELL, I DISSENT!: Today Justice Scalia, joined by the Chief Justice and Justice Thomas, dissented from two orders issued one month ago staying prisoners' executions in Texas. You can access the orders and the dissent here. When the orders originally issued, no dissents were noted. In these two cases, the Court granted stays of executions to prisoners who were asserting that it would be cruel and unusual punishment to execute them due to their alleged mental retardation. In his dissent, Justice Scalia argues that the prisoners had forfeited any right to have a federal court consider the claims. Justice Scalia's dissent may indicate to some that the Court is likely to hold, in a pending case that presents this issue, that it is cruel and unusual punishment to execute mentally retarded defendants. If that is how the Court rules, the Court likely would grant cert. in these two Texas cases, vacate the judgment below, and remand the cases to the lower court for reconsideration in light of the Supreme Court's opinion in the pending case.


     Easterbrook, Circuit Judge. A collision between a prison van and its chase car has led to this suit under the Federal Tort Claims Act. The van was carrying four prisoners from the federal prison in Pekin, Illinois, to the Metropolitan Correctional Center in Chicago. The driver of the chase car, trailing the van for security, was supposed to ensure that no other vehicle would come between the two. During stop-and-go driving on a congested road, the chase car hit the van. According to the Bureau of Prisons, the relative speed of the collision was between 5 and 10 miles per hour, all prisoners had been wearing seat belts, no injuries ensued, and the van (which suffered no damage from the impact) drove to its destination. According to Timothy Ueland, the plaintiff in this case, none of the prisoners had been secured with a seat belt, and he was thrown violently by a high-speed impact into the "cage" at the front of the van. Ueland contends that he suffered back and neck injuries that have caused him great pain.
Thus begins the opinion the Seventh Circuit issued today in Ueland v. United States. The opinion more or less excoriates the trial judge for having improperly resolved the case against the prisoner, and the appellate court sends the case back for a new trial before a different trial judge.

Favorite quote: In the course of rejecting an argument that the U.S. Attorney was advancing, Judge Easterbrook explains: "Nor does any other appellate decision support that view, and at least one rejects it. We are the second. As is true for many legal points, the paucity of support in appellate opinions does more to show that the proposition is too clear to be questioned than to show that it is debatable." And those words of wisdom conclude tonight's wrap-up of U.S. Supreme Court developments, with a Judge Easterbrook decision thrown in for good measure.
Posted at 21:50 by Howard Bashman

SHOULD THE SENATE HAVE ACCESS TO INTERNAL OFFICE OF SOLICITOR GENERAL MEMOS WRITTEN BY JUDICIAL NOMINEES?: Jonathan Groner of Washington, D.C.'s Legal Times has an article in today's issue concerning Senate Judiciary Committee Chairman Patrick J. Leahy's request that U.S. Court of Appeals for the D.C. Circuit nominee Miguel A. Estrada 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 federal government should take as friend of the court. You can access the article here. Also, you can access my previous posts about this nominee here and here.
Posted at 16:13 by Howard Bashman

EVENLY DIVIDED IN CASE OF INTEREST: By an evenly divided vote of 7-7 (with one active judge recused), the U.S. Court of Appeals for the Fifth Circuit has denied a petition for rehearing en banc in Washington Legal Foundation v. Texas Equal Access to Justice Foundation, a case in which a three-judge Fifth Circuit panel had ruled 2-1 that the Texas Interest on Lawyers' Trust Accounts program was unconstitutional. You can access the order denying rehearing en banc and the dissents therefrom here.
Posted at 15:30 by Howard Bashman

TOO MUCH PATIENCE?: For those of you patiently awaiting my summary to be posted tonight of today's two non-blockbuster U.S. Supreme Court opinions, I offer the tale of a prisoner who remained in prison two and a half years after the U.S. Court of Appeals for the Eighth Circuit had ordered his release. And, even then, he asked ever so nicely to be let out of jail. The Associated Press offers this report.

I UNDERSTAND SCIENCE, YOU DON'T: Today's edition of The Los Angeles Times contains an op-ed piece written by a professor of electrical engineering at the University of Southern California. He concludes that neither federal judges nor jurors serving in federal court understand enough about science to be deciding correctly cases in which scientific evidence is involved. You can access the op-ed piece here.

JEFFREY TOOBIN AND THE CHARLES SCHWARZ RETRIAL: The issue of The New Yorker magazine hitting newsstands today contains a lengthy article written by Jeffrey Toobin about the retrial of former New York City police officer Charles Schwarz. The U.S. Court of Appeals for the Second Circuit previously vacated his conviction arising out of the Abner Louima matter, and the retrial of Mr. Schwarz is getting underway today in the U.S. District Court for the Eastern District of New York. Toobin's article, which you can access here, discusses among other things the strategy that Mr. Schwarz's attorneys pursued in their Second Circuit appeal.
Posted at 12:03 by Howard Bashman

AN EARLY LOOK AT MONDAY'S NEWSPAPERS: The New York Times has an article on a recently-filed Third Circuit appeal involving a constitutional challenge to the federal law known as the Religious Land Use and Institutionalized Persons Act of 2000. You can access the NYTimes article here. In an editorial in its Monday edition, The Washington Post criticizes a recent Seventh Circuit decision that, according to the paper, further erodes the attorney-client privilege afforded to government executives. You can access the editorial here.
Posted at 00:15 by Howard Bashman

Sunday, June 02, 2002
C-SPAN INTERVIEWS JUDGE RICHARD A. POSNER: The C-SPAN program "Booknotes" is broadcasting tonight an interview with Seventh Circuit Judge Richard A. Posner in connection with his latest book, "Public Intellectuals: A Study of Decline." I stumbled upon this program this evening as I was getting my son ready for bed and inadvertently switched the television from his favorite channel, Nickelodeon, to C-SPAN. Upon seeing Judge Posner being interviewed by C-SPAN CEO Brian P. Lamb, I delayed switching the channel back. My son's response was "this is boring." I disagree. Among other things, Judge Posner answers whether he enjoys being a judge more than he enjoys being a professor. C-SPAN will rebroadcast the show at 11:30 p.m. eastern daylight time tonight. You can also access a video feed of the show online at this link. Trust me, the show is not boring.
Posted at 21:00 by Howard Bashman

COMING TOMORROW: The U.S. Supreme Court, on Monday, June 3, 2002, is scheduled to issue more opinions and orders. I will post my summary of those opinions and orders here by tomorrow night. For now, you can access my reports on previous weeks' developments at the Court here, here, and here.

Thanks to blogger N.Z. Bear for recommending "How Appealing" as a source for commentary on recent U.S. Supreme Court rulings. His blog has itself developed quite a large readership in just a short time. Plus, this past Friday, published a piece that he wrote.

WELL WORTH A LOOK: Associate Justice William W. Bedsworth of the California Court of Appeal, Fourth District, Division Three, in Santa Ana, California, has written a rather amusing column that you can access online here. Thanks to law blogger Denise Howell for the link.

The author of PejmanPundit turns 30 years old today, so happy birthday to him. He has posted some interesting reflections on reaching that milestone. Here, your blogger is due to turn 38 in just under five months from now, but still feels quite young most of the time.

But not quite as young as my little Pokemon fan, who is about to accompany me to see the Philadelphia Phillies battle the Montreal Expos at Philadelphia's Veterans Stadium this afternoon. He's really looking forward to it, as am I. Update: The Phillies won 18-3! Today's starting pitcher for the Phillies, Robert Person, won his first game of the year and recorded his first two hits of the year, both home runs. The first was a grand slam, the second a three-run homer, giving him a total of seven RBIs in just three at bats. And to think, in his first at bat, the Expos granted an intentional walk to the eighth-place batter, with runners already on first and second, to pitch to Person with the bases loaded and two outs, after which he hit the grand slam. By contrast, the starting pitcher for the Expos recorded one out before being replaced but was charged with five earned runs, giving him a 135.0 earned run average for today's game. Before the first inning was over, the Phillies had scored ten runs. You can access a recap of the game here.
Posted at 11:03 by Howard Bashman

Saturday, June 01, 2002
THANK YOU ISP: Due to some "service upgrades" in my residential area, my "always on" Internet connection was off this morning. Here are some quick updates of earlier posts. (Wow! Two uses of scare quotes in the same sentence, a new "How Appealing" record.)

ACCORDING TO THE WASHINGTON POST: The Fourth Circuit has granted a temporary stay of the Virginia federal district court's ruling that allowed a public defender to speak with a prisoner captured in Afghanistan who is now being held at the Naval Station Brig in Norfolk, Virginia. The WP's article says that the Fourth Circuit will hear argument in the matter on Tuesday. The WP also contains an editorial today that discusses this case and the New Jersey federal district court ruling that barred the closing of all INS deportation hearings for individuals swept up in the government's terrorist probe. Finally, the WP runs a short piece on the financial disclosures of the Justices currently serving on the U.S. Supreme Court. A previous column of mine, published in The Legal Intelligencer in February 2001, discussed the controversy then brewing over whether the financial disclosure forms of federal judges should be made available for public inspection over the Internet. You can access the text of that column here.

TODAY'S EDITION OF THE LOS ANGELES TIMES contains several letters to the editor that respond to a recent op-ed piece that the paper ran in which the author criticized California's U.S. Senators for blocking conservative judicial nominees. You can access the letters to the editor here. You can access the original op-ed piece here.

THIS WEEKEND I will be focusing on two appellate-related things. I hope to prepare a draft of the installment of my monthly Legal Intelligencer column to be published on Monday, June 10, 2002. It will focus on the pending U.S. Supreme Court case that presents a First Amendment free speech challenge to state regulations that limit what candidates for elected judicial office may address in the course of their campaigns. You can read more about that case here. I will also be wrapping up a petition for allowance of appeal to be filed in the Supreme Court of Pennsylvania this Monday in a case in which I have just gotten involved.

The U.S. Court of Appeals for the Third Circuit has decided not to hold oral argument on Monday, June 10, 2002 in the case in which it appointed me to represent, on a pro bono basis, an INS detainee from the West African country of Burkina Faso. This case may be one of the first to require the Third Circuit to address the meaning of the United Nations Convention Against Torture. From start to finish, the case is quite fascinating. You can access the briefs that I filed in the Third Circuit in this case here and here. The brief that the U.S. Department of Justice's Office of Immigration Litigation filed is not available online. A little over ten years ago, when I was clerking for a Third Circuit judge, that court's decision not to hold oral argument was a bad sign for the party that had lost below. That is no longer the case today. My unscientific observations lead me to conclude that the Third Circuit, in non-pro se appeals, is now as likely to reverse in a case submitted on the briefs as in an argued case.

Not having to present oral argument in the Third Circuit on June 10, 2002 will allow me to spend even more time preparing for a hearing on a post-sentencing motion that will occur on Tuesday, June 11, 2002 in the Court of Common Pleas of Montgomery County, Pennsylvania in a case that has previously been in the news.
Posted at 12:35 by Howard Bashman

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