How Appealing

Saturday, August 24, 2002
Recharging the batteries: Traditionally, when faced with the choice between spending the last week of August -- (a) behind a computer screen in a downtown office tower, where outside the streets are sweltering, and inside the air conditioning makes it feel like mid-January, or (b) at the sea shore, on the beach, playing miniature golf with my son, walking on the boardwalk, eating pizza and caramel corn -- I choose the latter. And so it is again this year.

This Web log will next be updated on September 2, 2002. Until then, there's plenty below and in the archives from which to choose. I hope that you too, between now and when I return, will take the opportunity to get up from behind the computer screen and go outdoors to relax and enjoy this wonderful planet on which we reside.
Posted at 00:59 by Howard Bashman

A link to my original coverage of the U.S. Supreme Court's ruling that declared the death penalty unconstitutional for the mentally retarded: Those visiting here thanks to my recent essay on Slate might be interested to see what I had to say about the U.S. Supreme Court's ruling in Atkins v. Virginia just after that decision issued. If so, you can access my post of June 21, 2002 by clicking here.
Posted at 00:41 by Howard Bashman

Some analysis of the Fifth Circuit's affirmance of former Louisiana Gov. Edwin Edwards's conviction: First, today's ruling proves the old adage that even Alan Dershowitz doesn't always win. Several aspects of the Fifth Circuit's opinion issued Friday are worthy of mention. But first, a special thank you to the Fifth Circuit for switching the format of its opinions earlier this week from html to pdf.

Beginning on page 6 of the opinion, the court discusses the defendants' challenge to the trial court's decision to keep the jurors' identities and places of work secret. The opinion contains a clear explanation of when that is proper and concludes that this case was one such instance.

The second part of the decision worth noting starts on the bottom of page 24. Co-defendant Bobby Johnson had a bad heart condition and a fear of doctors. Instead of getting his condition addressed through bypass surgery long before trial, he pursued other, more questionable treatment that proved ineffective. Then, in the very middle of the trial, he required emergency surgery and was forced to be absent for a while. The trial court ultimately ruled that the trial could proceed against Johnson in his absence. And today the Fifth Circuit upheld that ruling.

Finally, no high profile criminal trial would be complete without a troublesome juror. This trial involved a juror (see page 35 of the opinion) who repeatedly violated the trial court's instructions, brought notes from home into the deliberations, refused to discuss the case with any of the other jurors during the deliberations, and then was less than honest and forthcoming to the trial court when it conducted an inquiry into the juror's conduct. This all caused the trial court to dismiss the juror on the eleventh day of deliberations. The defense, which of course would have benefited from an obstinate juror, challenged that dismissal on appeal. The Fifth Circuit's ruling rejected the defendants' arguments challenging the dismissal of this juror. The opinion, at page 40, even includes a discussion of jury nullification.
Posted at 00:14 by Howard Bashman

Friday, August 23, 2002
Repetition does not always equal persuasion: Akhil Reed Amar is back at it, this time with his brother Vikram David Amar in tow. (Kinda makes me want to bust out my middle name, Jonathan, for the discussion.) ARA, joined now by VDA, is back to press his argument that U.S. Supreme Court Justices should be subject to term limits. As I said when ARA first broached the subject, this proposal is quite bizarre. So bizarre, in fact, that I couldn't resist returning to the subject later that day to deride it further. So, for what it's worth, HJB still votes "no" on term limits for U.S. Supreme Court Justices.
Posted at 23:59 by Howard Bashman

Judge Posner on a T-shirt: Today, in a short but worthwhile opinion, Seventh Circuit Judge Richard A. Posner addresses whether attorneys' fees should be allowed in a willful but minimally harmful case of copyright infringement involving T-shirt designs. Click here to find out the answer. And this reminder for district judges -- a little explanation goes a long way:
Since the factors aren't exclusive, and seem rather miscellaneous and ill-assorted, they leave the decision on whether to grant or deny attorneys' fees to the prevailing party in a copyright case pretty much to the discretion of the district judge, subject to necessarily highly deferential appellate review--for the vaguer a standard to be applied by a trial judge, the greater his roaming room. But we do have to insist that the judge explain the grounds for his decision in sufficient depth to enable their reasonableness to be determined; otherwise there would be no appellate control at all over such decisions.
The lack of an adequate explanation in this case has won the trial judge another chance to visit with the record.
Posted at 23:54 by Howard Bashman

An Australian law blog: It's too soon to call Ken Parish the long lost Australian Volokh, but Ken does describe himself as "a sometimes opinionated Australian legal academic based in Darwin, Northern Territory."
Posted at 23:48 by Howard Bashman

The Eleventh Amendment and its applicability in bankruptcy cases: Today the U.S. Court of Appeals for the Seventh Circuit issued a decision that is a must read for anyone interested in the ongoing debate over the Eleventh Amendment, States' rights, sovereign immunity, and whether States waived their sovereign immunity in the bankruptcy context by ratifying the U.S Constitution. The conclusion of Circuit Judge Daniel A. Manion's opinion, on behalf of a unanimous three-judge panel, states in pertinent part:
For the foregoing reasons, we conclude that Congress lacked authority under Article I of the Constitution to abrogate state sovereign immunity by enacting Section 106(a) of the Bankruptcy Code. As such, the State is entitled to Eleventh Amendment immunity from Mrs. Nelson's bankruptcy adversary proceeding. Furthermore, we reject Mrs. Nelson's argument that the States waived their sovereign immunity in the bankruptcy context by ratifying the Constitution under the "plan of the Convention." We also conclude that the State did not waive its sovereign immunity from suit in Mrs. Nelson's personal bankruptcy case by filing a proof of claim in a separate bankruptcy proceeding for the corporation that employed her. Finally, we reject Mrs. Nelson's argument that the bankruptcy court may exercise in rem jurisdiction over her adversary proceeding against these defendants.
The opinion contains a scholarly review of the current state of the law on these controversial issues. Those who have been considering whether to purchase the book on these subjects that Ninth Circuit Senior Judge John T. Noonan, Jr. has written (click here for my earlier posting about that book) should be sure to read this Seventh Circuit opinion first. It's available free of charge right here and right now, and it's very nicely done.
Posted at 23:24 by Howard Bashman

Undercover informant sues for unlawful termination: Never thought I'd see anything quite like this decision, which the U.S. Court of Appeals for the Sixth Circuit issued today.
Posted at 23:11 by Howard Bashman

Doing the cybersquat: The U.S. Court of Appeals for the Fourth Circuit today decided two appeals involving the Anticybersquatting Consumer Protection Act. Cases arising under that law seem to have catchy names. Today's offerings: Porsche Cars North America, Inc. v. and Harrods Limited v. Sixty Internet Domain Names.
Posted at 23:05 by Howard Bashman

Attorneys' fees and the Private Securities Litigation Reform Act: Today the U.S. Court of Appeals for the Second Circuit grappled with the unclear statutory language that Congress enacted in the Private Securities Litigation Reform Act of 1995 to require courts to impose sanctions on parties involved in abusive securities fraud lawsuits. As the court's lead opinion explains, "While the mischief that Congress was addressing is clear, the statutory language Congress employed is not." Chief Judge John M. Walker, Jr. concurred in the judgment in an opinion that criticized the majority's reliance on legislative history. Making something of a surprise cameo appearance in both opinions is Third Circuit Judge Anthony J. Scirica, who heads the rulemaking process for the federal judiciary. Judge Scirica had some advice for Congress when it was considering the provisions discussed in these opinions, but Congress only followed part of it, which perhaps explains why the resulting law proved less than optimal.
Posted at 22:39 by Howard Bashman

Hey Ninth Circuit -- you can save time by certifying questions to Prof. Volokh: Just yesterday, the U.S. Court of Appeals for the Ninth Circuit certified some complicated questions of California law to the Supreme Court of California. You can access the Ninth Circuit's certification order here. The Ninth Circuit's order requires the parties to report back on the status of the matter six months after California's highest court accepts the certification and every six months thereafter. Well, today UCLA School of Law Professor Eugene Volokh, over on his blog, answers the certified questions. Didn't quite take him six months, a year, or even longer, did it?
Posted at 22:18 by Howard Bashman

Fifth Circuit affirms former Louisiana Gov. Edwin Edwards's criminal conviction: You can access the Fifth Circuit's ruling, issued this afternoon, at this link. More commentary later, if warranted.
Posted at 17:49 by Howard Bashman

No one is to blame: Michele Landis Dauber, a recent law clerk to Circuit Judge Stephen Reinhardt and now an assistant professor of law at the Stanford Law School, argues in an essay on that the Ninth Circuit isn't to blame for its high reversal rate. Rather, the responsible party is the U.S. Supreme Court. And indeed she's absolutely correct -- no U.S. Supreme Court and the Ninth Circuit would never be reversed. It probably wouldn't be affirmed much then either. (Link courtesy of Sam Heldman; this post's title courtesy of Howard Jones.)
Posted at 12:34 by Howard Bashman

In today's Los Angeles Times: Today's edition of The Los Angeles Times contains this report on an oral argument yesterday before California's Second District Court of Appeal in an appeal from an order prohibiting Burbank City Council meetings from beginning with a sectarian prayer. Today's LATimes also contains this article on the ruling released yesterday by the Foreign Intelligence Surveillance Court. That ruling is discussed in more detail in the post immediately below.
Posted at 08:39 by Howard Bashman

In Friday's newspapers: Both The New York Times and The Washington Post report (see here and here, respectively) on the rather extraordinary rebuke that the U.S. Department of Justice received back in May 2002 from the U.S. Foreign Intelligence Surveillance Court. As the first paragraph of The Post's article explains:
The secretive federal court that approves spying on terror suspects in the United States has refused to give the Justice Department broad new powers, saying the government had misused the law and misled the court dozens of times, according to an extraordinary legal ruling released yesterday.
The NYTimes article reports that the Justice Department misled the court some seventy-five times. You can access the court's order from May 2002, just made public yesterday, at this link.
Posted at 00:12 by Howard Bashman

Thursday, August 22, 2002
Rhythm stick: Over the past seven days, this blog has had more than 13,000 page hits. Thanks for visiting, everyone!

(Fans of the referenced song can, using RealPlayer, see and hear Kirsty MacColl sing it via this link.)
Posted at 23:34 by Howard Bashman

Beam me up, Scotty: is reporting that the U.S. Court of Appeals for the Second Circuit is on the verge of regularly conducting appellate oral arguments via video conference. Next on the agenda, technology soon will allow for judges to be replaced by super-computers.
Posted at 23:17 by Howard Bashman

Today's must read: Back on August 13th, I mentioned here the account of a Texas resident whose efforts to avoid federal jury service weren't appreciated. Today has posted an article containing the complete text of the order to show cause to avoid contempt of court that the juror received from U.S. District Judge Fred Biery. Here is an excerpt:
Although Mr. Williamson could live in a country which does not require jury service, such as Iraq, Cuba, North Korea, or Russia, Mr. Williamson wants the benefits of American citizenship but apparently without fulfilling the responsibility. Mr. Williamson's arrogant attitude is reminiscent of the Vietnam era appellation given to those who were all in favor of war so long as someone else made the military sacrifice. They were known as the "chicken hawks." (During the seven years that Mr. Williamson has whined, I and at least one other local federal judge of whom I am aware, have reported to jury service three times. I will be reporting for jury service during the first part of October 2002.)
To see the full text of Judge Biery's order and an accompanying news story, click here.

Update: And this news story from today's edition of The Hartford Courant provides another example of how not to respond to a jury summons.
Posted at 23:08 by Howard Bashman

Who says what?: Thanks also to Law Professor Eugene Volokh and Weblogger extraordinaire Pejman Yousefzadeh for their especially kind words about my Slate essay. I promise to mention it here a whole lot less often tomorrow and probably not at all on Saturday.
Posted at 22:47 by Howard Bashman

A stunning decision from California's highest court: The Supreme Court of California issued a 6-1 ruling today in a criminal case that makes it more difficult for trial courts to require defendants to wear stun belts. The dissenting Justice, meanwhile, criticized the majority for relying on (Fortunately, in this blog's three and a half months of existence, no one has criticized me for my heavy reliance on Google.)

Today's majority opinion begins:
In this case we must determine under what circumstances a defendant in a criminal trial in California may be required, as a security measure, to wear a remote-controlled electronic "stun belt" -- a device that, in its current design, delivers an eight-second long, 50,000-volt, debilitating electric shock when activated by a transmitter controlled by a court security officer. The Courts of Appeal have reached conflicting conclusions with regard to whether the principles set forth in this court's decision in People v. Duran (1976) 16 Cal.3d 282 (Duran), establishing the limited circumstances under which a defendant may be subjected at trial to physical restraints such as shackles or manacles, apply as well to the use of a stun belt, and we granted review in part to resolve that issue. In addition, because this is the first occasion this court has been called upon to address the use of a stun belt in courtrooms in California, we also determine whether there are features and aspects of such a device that are sufficiently distinct to require a trial court to consider additional factors before compelling a defendant to wear one during a criminal trial.

As we shall explain, with respect to the first point we conclude that the Court of Appeal in this case correctly determined that the general principles set forth in Duran that apply to the use of traditional types of physical restraints also apply to the use of a stun belt. Unlike the Court of Appeal, however, we further find that the trial court's ruling in this case compelling defendant to wear a stun belt while testifying on his own behalf was erroneous under Duran, and also conclude that this error was prejudicial.

Accordingly, we conclude that the judgment of conviction must be reversed and the matter remanded for a new trial. In addition, to provide guidance both to the trial court in this case (should a question as to the potential use of a stun belt arise on retrial) and to other courts that may be faced with the question of the use of a stun belt in future trials, we discuss a number of distinct features and risks posed by a stun belt that properly should be taken into account by a trial court, under the Duran standard, before compelling a defendant to wear such a device at trial.

Unlike shackles and manacles, which have been used for hundreds of years and whose operation is predictable and effects well known, the stun belt is a relatively new device with unique attributes and whose use has not been without problems or controversy. In light of the nature of the device and its effect upon the wearer when activated, requiring an unwilling defendant to wear a stun belt during trial may have significant psychological consequences that may impair a defendant's capacity to concentrate on the events of the trial, interfere with the defendant's ability to assist his or her counsel, and adversely affect his or her demeanor in the presence of the jury. In addition, past cases both in California and in other jurisdictions disclose that in a troubling number of instances the stun belt has activated accidentally, inflicting a potentially injurious high-voltage electric shock on a defendant without any justification. The potential for accidental activation provides a strong reason to proceed with great caution in approving the use of this device. Further, because the stun belt poses serious medical risks for persons who have heart problems or a variety of other medical conditions, we conclude that a trial court, before approving the use of such a device, should require assurance that a defendant's medical status and history has been adequately reviewed and that the defendant has been found to be free of any medical condition that would render the use of the device unduly dangerous.

Finally, inasmuch as the governing precedent establishes that even when special court security measures are warranted, a court should impose the least restrictive measure that will satisfy the court's legitimate security concerns, we conclude that a trial court, before approving the use of a stun belt, should consider whether there is adequate justification for the current design of the belt -- which automatically delivers a 50,000-volt shock lasting 8-10 seconds, a shock that cannot be lowered in voltage or shortened in duration -- as opposed to an alternative design that would deliver a lower initial shock and incorporate a means for terminating the shock earlier. Particularly in view of the number of accidental activations, we conclude that a trial court should not approve the use of this type of stun belt as an alternative to more traditional physical restraints if the court finds that these features render the device more onerous than necessary to satisfy the court's security needs.
In contrast, the dissenting Justice ends her opinion in this manner:
We are a court of review. The question for review here was whether the judgment of conviction must be overturned because defendant was required to wear a stun belt, and the answer is, we should have affirmed the judgment because no prejudice was shown. Full stop. The question in this case was not whether stun belts pose serious medical risks for persons with heart problems or other medical conditions, nor was it whether the current design of the stun belt could be improved upon. There is absolutely no evidence in the record bearing on these questions. In the absence of such evidence, we had two choices. We could have deferred to the Legislature, which can make law after hearing from distinguished experts on all sides of controversial issues. Or we could have waited for a case that raised these questions on an adequate record. Instead, the majority, rushing to judgment after conducting an embarrassing search for information outside the record, has tied the hands of the Legislature, to the likely peril of judges, bailiffs, and ordinary citizens called upon to do their civic duty.'s California affiliate, The Recorder, offers this additional coverage of today's ruling.
Posted at 22:28 by Howard Bashman

Dahlia Lithwick schools us on comparative legal studies: And she concludes, in a provocative yet thoughtful essay just posted on Slate, that when it comes to suspects caught in the post-September 11th dragnet, the British are doing a better job of living up to the principles enshrined in the U.S. Constitution than we are.
Posted at 19:24 by Howard Bashman

Showing signs of sanity: Zacarias Moussaoui prefers to deal with lawyers only indirectly, The Associated Press reports here.
Posted at 16:35 by Howard Bashman

True story: It takes just one essay on Slate for a nationally-syndicated talk show host to want to interview me live, on the air, for twenty minutes tonight. But I've turned down that kind invitation, because I have said everything in the essay that I wanted to say, and I haven't said all the things that I didn't want to say. Now if someone were to offer a national television appearance -- that might just prove to be too tempting to refuse.
Posted at 15:45 by Howard Bashman

One possibly negative consequence of my Slate piece: A female reader just sent along the following email:
What a great article - it is so nice to see someone with a logical, unemotional perspective. I have been making the same argument for years and people just don't get it. I really enjoyed your clear and concise explanation.
Uh oh! Now women I've never even met find me to be "logical and unemotional."
Posted at 15:14 by Howard Bashman

An FAA form that's too vague and confusing to support criminal charges for lying: The U.S. Court of Appeals for the Ninth Circuit has ruled today, in a quite short and interesting opinion you can access here, that Federal Aviation Administration Form 8500-8 -- a medical information form that pilots must complete each year to achieve recertification -- is too vague and ambiguous to support federal criminal charges for materially false responses. The opinion is also notable because it explains the game of "Dizzy Izzy":
"Dizzy Izzy" is a contest, often put on between innings of baseball games, in which two spectators are invited down to the field, where they place their foreheads on top of a baseball bat standing on the ground and then circle the bat a number of times, after which they must run in a straight line down the field.
I observed my first game of "Dizzy Izzy" just a few weeks ago between innings at the home field of this minor league baseball team.
Posted at 14:06 by Howard Bashman

I'm right, InstaPundit says: Whew! I was hoping for that. Plus, I'm all for anything that encourages the public en masse to download a law review article, or two.
Posted at 10:56 by Howard Bashman

Clamoring for more: Now that my Slate essay is available online, people are emailing me or posting elsewhere to encourage me to write more stuff. First, though, a quick thank you to four individuals who have inspired me to write or keep writing this Web log for their kind words about my Slate piece: Denise Howell, Jeff Cooper, Ernie the Attorney, and Sam Heldman.

As for whether there will be more, what do you think this blog is, chopped liver? But seriously -- I think there will be more. Happily, the person at Slate who originally encouraged me to write something was already encouraging me to write another thing before the piece published yesterday hit your computer screen. But I'm not writing another thing just yet, so be patient or breathe a sigh of relief as appropriate.

Last night I received an email that began: "I posted this in the discussion forum at Slate, but, frankly, there's a lot of dreck there and I'm not confident that anyone interested in the issue will read it." I'll try to keep that in mind.
Posted at 09:40 by Howard Bashman

Today at National Review Online: Jonathan Adler has his long-awaited (at least by me) piece that refutes some attacks that environmentalist groups have launched against Fifth Circuit nominee Priscilla R. Owen. (O.K., Jonathan, there's your link; now you can link back to my Slate piece at The Corner. Update: Thanks, Jonathan -- you didn't waste any time!)

Also at NRO, this essay examining a dispute between Connecticut's Attorney General and that State's highest court. You can access the Connecticut Supreme Court's ruling in question at this link.
Posted at 09:23 by Howard Bashman

Hey Second Circuit, Pete du Pont says you're wrong too: In a forceful essay that appeared yesterday on OpinionJournal, former Delaware Governor Pete du Pont castigates the Second Circuit's decision upholding Vermont's campaign finance reform law. He also observes that George Washington probably wouldn't have liked the law or the Second Circuit's ruling either. You can access my original report on that decision, which contains links to the majority and dissenting opinions, by clicking here.
Posted at 09:05 by Howard Bashman

In Thursday's newspapers: The Christian Science Monitor explains the pretrial conditions of confinement for Zacarias Moussaoui. The Washington Post contains a report that the trial judge considering whether the U.S. military may continue to detain Yaser Esam Hamdi as an enemy combatant has allowed the government to take an interlocutory appeal to the U.S. Court of Appeals for the Fourth Circuit from the order requiring the government to turn over more evidence to justify the detention. Next, the Fourth Circuit must decide whether it will permit an appeal now.
Posted at 00:30 by Howard Bashman

Wednesday, August 21, 2002
Who is Ray Lupa?: The Recorder also reports on a California federal court case involving the Religious Land Use and Institutionalized Persons Act. The article happens to explain that the Act is "known as RLUIPA (pronounced RAY-lupa)." So, Ray Lupa isn't a person; rather, it's a "law [that] was created to give religious groups a legal tool to fight overly strict local land rules." You can access an entire Web site devoted to Ray Lupa (the law, not the person) at this link.
Posted at 23:57 by Howard Bashman

California Supreme Court's justices deluged with amicus briefs: That's what can happen when a court is hearing several cases of great concern to the business community, this article from affiliate The Recorder reports.
Posted at 23:57 by Howard Bashman

These two women feel ostracized for supporting a woman: I'm not really sure what to make of this article written by two young supporters of Priscilla R. Owen's nomination to serve on the U.S. Court of Appeals for the Fifth Circuit.
Posted at 23:44 by Howard Bashman

Aren't there bigger fish to fry?: The other day (see my post here), I mocked The Associated Press for seeming to mix metaphors in an article reporting that the "dirty bomber" may be a "small fish." Today, courtesy of the U.S. Court of Appeals for the Tenth Circuit, I learned that it is a federal crime to fish in violation of state law and then transport the catch across state lines. You can access here the Tenth Circuit's opinion.
Posted at 23:30 by Howard Bashman

On the front page: Just received an email in response to my Slate piece (click here to access it) stating "Interesting essay on MSN on line. Thanks. Something to think about." The email caused me to surf on over to the site, and there I saw that my essay was the lone Slate item currently mentioned on the page. That was surprising, but in a very pleasant way.
Posted at 23:17 by Howard Bashman

Privately funded educational junkets for federal judges -- a cause for concern?: Back on August 8, 2002, I posted here to announce that my September 2002 appellate column, to be published in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, will address the continued controversy over privately-funded educational junkets for federal judges. Since then, I have received from readers of "How Appealing" helpful materials and emails sympathetic to each side of the controversy. The organization leading the charge against the current state of things, Community Rights Counsel, has provided me with a print copy of its lengthy report on the subject.

On my train ride home this evening, I began reading the report, which I had previously spent some time reviewing online. At its outset, the report explains that some conservative judges had attended educational seminars sponsored by conservative organizations and -- shockingly! -- emerged to rule in quite conservative ways. Perhaps what is needed is for judges associated with one end of the political spectrum to be allowed only to attend educational presentations sponsored by the opposite side. For example, Ninth Circuit Judge Stephen Reinhardt would only be able to attend educational seminars sponsored by George Mason University Law School or Richard M. Scaife, while U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas would only be able to attend seminars sponsored by the ACLU or similar groups. I can't help but think that these three members of the judiciary would emerge from those seminars essentially unaffected by what they had learned. Now, of course, my discussion to this point ignores the important issue of appearance of impropriety, but on the matter of actual impact, I remain skeptical.
Posted at 22:48 by Howard Bashman

Now available online: My Slate essay.
Posted at 18:27 by Howard Bashman

Examining the minute particulars of jury nullification The author of the Minute Particulars Web log is back from jury duty, and he shares both his views and the thoughts of a moral philosopher on the general subject of jury nullification. If you'd like to see my original post that launched the blogosphere into a tizzy over this issue, click here.
Posted at 17:07 by Howard Bashman

To bungee-jump or not to bungee-jump, that is the question: The plaintiff in this opinion that the U.S. Court of Appeals for the Eighth Circuit issued today received a $6,180,000 settlement for injuries received while bungee-jumping at a fair in St. Louis. Thus, I say no bungee-jumping for me.
Posted at 16:41 by Howard Bashman

A sad coincidence, or doomed from the outset?: The U.S. Court of Appeals for the Seventh Circuit today affirmed a 408-month sentence (or, as you and I might say, 34 years) of imprisonment given to a defendant who had pleaded guilty to conspiracy to distribute 50 grams or more of crack cocaine. The defendant's last name? Partee. This result provides just one more reason to stay away from illegal drugs, no matter what your last name happens to be.
Posted at 16:22 by Howard Bashman

In this version of Jordan v. Jordan, Michael and Nike win: And the Jordan Blouse Division of Chattanoga (just one "o"; I've checked and checked again) Manufacturing, Inc. loses. You can access here the Seventh Circuit's opinion in this case, issued today.
Posted at 16:09 by Howard Bashman

The spotlight nears: Within the hour, an essay I wrote will be published on Slate's Web site. The piece addresses whether the majority benefits or is harmed when the U.S. Supreme Court relies on public opinion to determine the Constitution's meaning. And now I can publicly observe that Slate Senior Editor Dahlia Lithwick is not just an amazing author, but also the best editor that one could ever hope to have.

So how does one get an essay published on Slate? I'm reminded of the old Steve Martin routine, where he promises to share the secret of how to become a millionaire and never pay any taxes: step one -- obtain one million dollars; step two -- don't pay any taxes.

Update: For those who might be thinking -- hey, the hour's up and it's not there -- patience, my good readers, it's coming.
Posted at 15:11 by Howard Bashman

A double dose of Hamdi: Today's two columnists on FindLaw don't offer the eclectic mix of views that one typically finds there. Instead, they both wax longiloquent about Yaser Esam Hamdi. In his essay, Law Professor Michael C. Dorf suggests that Senator Tom Daschle could be the next person declared an enemy combatant. I enjoy arguments based on exaggeration as much as the next person, but that's just a bit improbable. In the second piece, Anita Ramasastry, an Assistant Professor of Law at the University of Washington School of Law in Seattle, asks "Do Hamdi and Padilla need company?" While the answer, probably, is "yes" -- after all, it must get quite lonely in a military brig when you're an enemy combatant -- Ms. Ramasastry is sensibly opposed to the idea of citizen internment camps.
Posted at 14:34 by Howard Bashman

Another "absurd" law struck down: The Supreme Court of Pennsylvania yesterday struck down a Pennsylvania law that prohibited a homosexual person from adopting his or her partner's child even while homosexual couples were permitted to adopt children related to neither parent. The court's ruling, which favors so-called "second parent adoptions," reverses a ruling of Pennsylvania's intermediate appellate court that upheld the law barring such adoptions. You can access the Court's unanimous ruling (which calls the law "absurd" three times) at this link. You can access news coverage of the ruling here, courtesy of The Philadelphia Inquirer.
Posted at 14:11 by Howard Bashman

Who ever would have known?: A site called "Unknown News," which features the catchy motto "if you're not pissed off, you're not paying attention," has discovered "How Appealing" thanks to my "forever and a day" post from last night. And the host of TalkLeft has conducted some independent legal research pertaining to the subject-matter of that same post, and she/they set(s) for her/their thoughts, umm, here.
Posted at 13:41 by Howard Bashman

One bad ruling and you're the next "Ninth Circuit": An opinion piece published this morning at National Review Online says that the U.S. Court of Appeals for the Second Circuit is the new Ninth Circuit based on the Second Circuit's recent decision upholding most of Vermont's campaign finance reform law. You can access my prior coverage of that ruling, including links to the majority and dissenting opinions, by clicking here.
Posted at 09:36 by Howard Bashman

Elsewhere in today's newspapers: The New York Times contains a bunch of letters to the editor about the University of North Carolina at Chapel Hill Islamic book flap (oh no, a pun). The Washington Post contains an op-ed on school choice, vouchers, and the Blaine Amendment. The Los Angeles Times contains this report on the Florida law requiring some women to publish their sexual histories before putting a child up for adoption. The LATimes also reports that Los Angeles is considering a law that would restrict "solicitors" at that city's International Airport to certain locations. And, no, it doesn't appear that the article is referring to attorneys who practice in the United Kingdom.
Posted at 09:31 by Howard Bashman

Who you callin' a hypocrite?: Today's edition of The New York Times contains an editorial describing the current state of the U.S. Supreme Court's States' rights-sovereign immunity-Eleventh Amendment jurisprudence as "judicial hypocrisy."
Posted at 09:07 by Howard Bashman

Where and when: I am so on the verge of saying where and when my op-ed piece will appear, because it's due to appear in the very near future. But then I'd be tempted to say a few words about the subject of my piece, and I'm not yet going to do that.

Thanks to those of you who have emailed to say "congratulations" without knowing any of the details. In a totally unrelated development, I'm pleased to add Kausfiles to my list of recommended Web logs. This is something I've been meaning to do for some time and truly has nothing to do with where my piece is being published. I don't even know if Mickey reads "How Appealing." I do read his blog, though. For any who care, the final hit count tally for my blog yesterday was 3905.
Posted at 08:31 by Howard Bashman

Tuesday, August 20, 2002
Working that InstaMagic: Thanks to the kind proprietor of InstaPundit, this Web log has experienced some 3800 hits during the first twenty-three hours of today. That's some 800 more hits than "How Appealing" had on this site's previous busiest day. I am most thankful for the 1200 to 1500 hit this blog receives on an average day when it's mentioned nowhere. But a brief mention on InstaPundit, and the counter starts spinning out of control -- which is pretty cool in its own right.

In other news, it now looks fairly certain that my op-ed piece that is being published in a "real" media outlet will become available either late tomorrow or late Thursday, and when I'm able to drop the word "fairly" from that statement I will be sure to announce here precisely where and when you can find it.
Posted at 23:00 by Howard Bashman

Pure Posner: As I forthrightly noted in my very second post ever on this blog, one of my most favorite writers and thinkers in the entire federal judiciary is Circuit Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit. Why? Well, not only is he brilliant, but his style of writing is especially accessible to expert and non-expert alike. Today's he has provided another characteristic example of his excellence in judicial opinion writing. In this opinion: (a) he gets to criticize the parties for not understanding federal subject matter and removal jurisdiction; (b) he gets to say "But the Wright and Miller treatise is wrong" and, of course, Judge Posner is right; and (c) he gets to remind us that when parties agree to arbitrate a dispute under state law, the arbitrators get to have the last word on the facts and the law even if the ruling is wrong on the merits. I would provide excerpts of the good parts of this opinion except that the opinion itself is thirteen pages long and there are few if any non-good parts. So, if you've got a moment or two, take a look for yourself and see how a judicial opinion can be written in a manner that makes it both interesting to read and easy to understand. And then ask yourself why more judges don't write opinions meeting that description.
Posted at 22:45 by Howard Bashman

Innominate bloggers? In this opinion issued today by the U.S. Court of Appeals for the Eleventh Circuit, the court explains: "We will refer to the jury as 'innominate' rather than 'anonymous' because, after a thorough voir dire, the parties knew everything about the jurors except their names." Hmm, under that theory, maybe we should be referring to bloggers who don't reveal their actual names as "innominate" too? I'll wait for the blogosphere's scholar of classical languages, Dr. Weevil, to weigh in on this one.
Posted at 22:20 by Howard Bashman

Forever and a day: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled that federal habeas corpus relief is unavailable to a state prisoner confined on charges of civil contempt so long as the prisoner possesses the ability to comply with the order whose violation led to the prisoner's incarceration.

When someone is jailed for civil contempt, he is said to hold the key to his own release, because the imprisonment lasts only as long as the defendant is unwilling to obey the court's order. Yet some lower federal court rulings have recognized a prisoner's right to release from confinement for civil contempt when the prisoner has shown there is no substantial likelihood he ever will comply with the order.

Today, however, the Third Circuit ruled that the U.S. Supreme Court has never recognized such a limitation, and thus a state court may constitutionally keep a prisoner jailed for civil contempt indefinitely, so long as the prisoner retains the ability voluntarily to comply with the state court order that he is disobeying.

What does "indefinitely" mean in this context, you may be wondering? The state prisoner whose case the Third Circuit was considering today has been behind bars since April 5, 1995. Seven years, four months, fifteen days, and counting, without having faced any criminal charges or having been proved guilty of a crime beyond a reasonable doubt. You can access the Third Circuit's opinion at this link.
Posted at 22:02 by Howard Bashman

Sexy, no; incredibly important, yes: A divided three-judge panel of the U.S. Court of Appeals for the First Circuit ruled today that the provisions of Title II of the Americans with Disabilities Act allow a private citizen to bring a damages suit against an unconsenting State. Circuit Judge Sandra L. Lynch wrote the majority opinion, in which Circuit Judge Kermit V. Lipez joined. Circuit Judge Juan R. Torruella dissented and would have held that the suit was barred by the Eleventh Amendment. You can access the court's opinion here.

As the majority's opinion explains: "This case arises in the rapidly changing landscape of the Supreme Court's recent jurisprudence regarding the states' immunity from suit by private parties under federal law." A split among the federal appellate courts already exists on this issue, and the U.S. Supreme Court is quite likely to grant review in a case presenting this very issue sometime late next month.
Posted at 21:40 by Howard Bashman

The Supreme Court skullcap photo contest -- we have a winner! This Web log, focussed as it is on appellate courts, often discusses judging, but it is a rare occasion when I actually get to play the role of judge. This, however, is one of those rare instances. In a post that appeared on this blog at 2:50 p.m. eastern daylight time today, I wrote that "The opportunity thus remains open for any of this blog's readers to be the first to find such a photo online and email the link to me." Such a photo, in the context of the post, referred to a photo of the ceremonial skullcaps that U.S. Supreme Court Justices have worn to presidential swearing-in ceremonies.

First, another thank you to Tony Mauro, who does a superb job covering the Supreme Court for and The Legal Times. I was on the telephone this afternoon with a journalist who also writes about the Supreme Court quite frequently, and she too had nothing but wonderful things to say about Tony. Were it not for Tony's email to me on the subject of these skullcaps -- an email from which I quoted liberally here -- this contest would not have occurred.

Now for the results: At 3:47 p.m., law student Alice W. of the already justifiably famous "a mad tea-party" blog wrote in with the first of her two entries. Her email asked only "similar?" To that I will now answer "yes," but the goal wasn't to find similar; rather, the contest was to find the actual thing, and sadly Alice W.'s first entry didn't do that. In a second email showing the time as 3:41, but which arrived after her 3:47 email, Alice W. wrote: "are they complete skullcaps, or do they have points? english judges apparently wore black ones when they pronounced death sentences (pre-1969). see the catholic encyclopedia for more general history on birettas. kind of cool. love historical tidbits." This second submission, I regrettably conclude, doesn't constitute an entry because it doesn't link directly to any photographs and merely seeks information. For the record, I didn't provide information beyond the publicly-available post to any contestants, even those who don't capitalize the first letters of their sentences.

The winning entry was submitted by attorney Sam Heldman, he who once proposed a group blog with a different lawyer covering each circuit, he who sometimes tries to draw me into debates by using his blog to attack things I have posted here that seemed perfectly innocuous when written, and he who I sometimes torment by making passing references to in my posts in ways that only he would notice. Sam, congratulations! This win should be a cause for relief, as you have already publicly claimed victory on your blog. (Well, not quite, but almost.) Here is Sam's winning entry, via an email dated 4:28 p.m. The image that Sam submitted, by the way, is one of "Chief Justice William H. Taft administering the oath of office to Herbert Hoover on the east portico of the U.S. Capitol, March 4, 1929."

The recipient of first runner-up status, who will serve out the balance of Sam's term if and when Sam discovers something better to do, is a visitor from the Greedy Clerks Board who is known by the name of Signed Epstein's Mother. Signed's entry, which clocked in at 4:42 p.m., is so clever that I must reproduce it in full:
I accepted your challenge and found two pictures showing the caps worn by the Supreme Court justices. Although I looked thoroughly I could not find any picture of Chief Justice White wearing one when he swore in President Wilson. White was indeed hatless in the picture I do find of the swearing in ceremony. The best view of the hat was the picture of Chief Justice Taft swearing in President Hoover: [providing exactly the same photo submitted by Sam Heldman].

Additionally, you can see in this picture of the Clinton 1997 ceremony to the bottom right Justice Ginsburg with a hat on, but it does not appear to be the style of hat worn by Justices Scalia (it appears that is Scalia at least) and Breyer or Souter (again I'm guessing it's Breyer pictured though you can't see his face).

If the links do not work let me know as I have the files saved.

By the way, as a member of the Greedy Clerks Board I am shocked, mortified, dismayed that you would chose as the best moniker someone with a passing reference to the Simpsons. While the series serves as a wonderful way to pass the day I believe my screenname, at least in terms of obscurity, wins the day.
You can see close-ups of the hats in question at the bottom right of two of the photos (here and here) available on the page to which Signed linked. Signed does achieve a moral victory, in that the original nomination of these caps arose in the context of the 1997 inauguration, and Signed is the only entrant to have found photos of the caps in use then. Is the name "Signed Epstein's Mother" too obscure for you? If so, click here or here to learn more.

Congratulations to all three participants, and thanks for playing.
Posted at 19:52 by Howard Bashman

U.S. Supreme Court ceremonial cap photo contest is now closed: Unlike Haley Barbour and the RNC, I of course didn't offer any prize other than the never-ending fame that a fleeting mention on this blog is sure to bring. Three entries arrived in close proximity to one another. I must examine them all before declaring a winner and giving credit to all three for their efforts. Thanks to everyone who has taken time away from actual productive work to be of help to the readership of "How Appealing." I will describe all three entries, and the links they provide, before this day is over.
Posted at 16:52 by Howard Bashman

Republican National Committee and Haley Barbour get to keep their million dollars: Today the U.S. Court of Appeals for the District of Columbia Circuit issued a unanimous three-judge panel decision that begins:
After publishing an offer to pay one million dollars to the first person who could demonstrate that a statement about Republican plans for Medicare spending was false, the Republican National Committee (RNC) denied all claims for the prize. Two of those claims are now before this court. The RNC prevailed in the district court on its motion for summary judgment, and we affirm.
The offer in question consisted of, among other things, the following assertion:
Heard the one about Republicans 'cutting' Medicare? The fact is Republicans are increasing Medicare spending by more than half. I'm Haley Barbour, and I'm so sure of that fact I'm willing to give you this check for a million dollars if you can prove me wrong.
Today's ruling allows Barbour and the RNC to keep their million dollars (or at least that part of it which legal fees did not consume). You can access the complete opinion here.
Posted at 16:15 by Howard Bashman

An update on those U.S. Supreme Court skullcaps: The other day, I posted an email from a reader nominating the U.S. Supreme Court's traditional Presidential Inauguration headgear as an entry in my odd judicial fashion contest.

Today I received a very helpful and informative email from U.S. Supreme Court correspondent Tony Mauro forwarding the text of his article about these caps published in The Legal Times on January 27, 1997, following President Clinton's second inauguration ceremony. Here are some excerpts:
Before and after the ceremony, according to eyewitnesses, the justices were unusually animated -- like schoolchildren let out to play, one observer said. Justice Clarence Thomas was meeting and greeting everyone in sight, Justice Stephen Breyer was singing along with "This Land Is Your Land," and Justice Antonin Scalia was depicted in a Washington Times photo waving to his mother.

In the same picture, Scalia, O'Connor, and Anthony Kennedy were all depicted wearing black skullcaps, which have come back into fashion among the justices for outdoor ceremonial wear. Justices Clarence Thomas and Stephen Breyer also wore them.

The origin of the headdress is obscure, and even a helpful fact sheet from the Court curator's office is somewhat uncertain on the point. "The skullcap used by the Supreme Court today may be a descendant from European judicial headgear, but there does not seem to be a direct lineage," the sheet reports. "Skullcaps do not appear to have been adopted for use by Supreme Court justices directly from England."

According to the curator's office, there is no evidence that skullcaps were worn by justices during the Court's first 100 years. Back then, most justices seemed to wear top hats or some other kind of ordinary headgear.

Although in England, the caps were often worn by judges inside the courtroom, the curator's office notes, the justices' caps never are; they are dusted off for use at formal outdoor events only.

A small display at the Court shows what one of the caps looks like and contains photographs of Chief Justice Edward White wearing one as he swore in Woodrow Wilson in 1913 -- apparently the earliest documented use of a skullcap by a justice. Chief Justice William Howard Taft also wore one of the caps while swearing in Herbert Hoover in 1929.

At President John F. Kennedy's inaugural in 1961, seven of the nine justices wore skullcaps, according to a memo in the Court's files. Associate Justice Tom Clark would have worn one, but it was too small. The memo directed, "For the next inauguration get Mr. Justice Clark a size 7 3/8 skullcap."

Between 1965 and 1985, though, there is no evidence of justices wearing the caps-except in 1977, when Thurgood Marshall wore one. It was during the Bush-Quayle inaugural in 1989 that the use of the brimless black hats or skullcaps blossomed again, with Rehnquist and O'Connor sporting them anew -- and at least some of the justices have worn them at the inaugurals since, though not during the actual swearing-in.
Thanks so very much, Tony, for sending this along!

Tony's email also noted that his Legal Times article "was accompanied by photos both current and historical showing the headgear worn over the years, but they are not available online, I regret to say." The opportunity thus remains open for any of this blog's readers to be the first to find such a photo online and email the link to me.
Posted at 14:50 by Howard Bashman

Next they'll bring a RICO action to put bubble-gum back in the pack: Trading cards remain big business. Today the U.S. Court of Appeals for the Ninth Circuit decided an appeal in a class action lawsuit brought by trading card purchasers against the manufacturers and distributors of trading cards and the licensors of the images shown on the cards. The opinion explains:
These are consolidated appeals from the dismissals of eight virtually identical actions brought by sports and entertainment trading card purchasers. The defendants-appellees are manufacturers and distributors of trading cards and licensors of the intellectual property depicted on these cards. In each of these actions, the purchasers alleged that the random inclusion of limited edition cards in packages of otherwise randomly assorted sports and entertainment trading cards constituted unlawful gambling in violation of RICO.

The foundation of most trading card products is a base set of cards, which may include as many as eighty different cards, each with a different picture on it. Beginning in the early 1990's most trading card products also included smaller sets of "insert" or "chase" cards, which may include as many as ten or fifteen different cards, or as few as one card. These insert cards are more rare than base cards and, thus, they generally are more desirable to card collectors. Trading card packs and display boxes typically state the odds of receiving in a given pack an insert card from any of the various insert sets. Almost every card manufacturer also includes a disclaimer which states that the advertised odds are an average for the entire production run and are not guaranteed within an individual pack or box. There is a secondary market for trading cards, active at trading card conventions, trading card stores, and on the Internet, which places higher values on some cards than others.

In these actions, the plaintiffs asserted that the marketing and distribution of trading cards constituted gambling, a RICO violation, because the essential elements of gambling -- price, chance, and prize -- were all present. That is, the purchasers paid at least a portion of the purchase price for the chance to win an insert card. They sought compensatory and treble damages.
In concluding its opinion, the Ninth Circuit explained:
We agree with those courts, with the district court, and with all other courts that have considered this issue. Purchasers of trading cards do not suffer an injury cognizable under RICO when they do not receive an insert card. At the time the plaintiffs purchased the package of cards, which is the time the value of the package should be determined, they received value -- eight or ten cards, one of which might be an insert card -- for what they paid as a purchase price. Their disappointment upon not finding an insert card in the package is not an injury to property. They, therefore, lack standing to sue under RICO.
The putative class member in my family is currently visiting the zoo with his mother and thus is unavailable for comment.
Posted at 14:16 by Howard Bashman

Florida sperm donor loses appeal seeking to enforce visitation rights: The Associated Press provides this report. The article makes clear this was not an anonymous donation case; rather, the sperm donor had a contract with the mother, and the contract provided for visitation rights. Update: Courtesy of FindLaw, you can access here the Florida appellate court's ruling.
Posted at 10:53 by Howard Bashman

A Modest Proposal for dividing the Ninth Circuit: My good man Stuart Buck has drawn my attention to an unusual suggestion for splitting the Ninth Circuit that might have made Jonathan Swift envious.

Disclaimer: When I say that I favor dividing the Ninth Circuit, this proposal isn't what I have in mind.
Posted at 09:29 by Howard Bashman

Big time: I'm on the verge of being able to announce some good news -- that the op-ed piece I wrote for a major media outlet will be published soon. So, stay tuned for more details, including (of course) where and when it will appear. Does this prove the truth of Newsweek correspondent Steven Levy's observation in an online video interview (click here and scroll down to just below mid-page) that mainstream media outlets will co-opt those bloggers capable of developing an audience? Far too soon to tell, because it's still quite a long road between here and there.
Posted at 09:12 by Howard Bashman

In Tuesday's newspapers: Both The New York Times (article here) and The Washington Post (article here) confirm that no serious or lasting harm appears to have occurred when a book on Islam was discussed yesterday at an orientation session for new students at the University of North Carolina at Chapel Hill. In other news, The Washington Post is reporting that the federal government has asked the trial court presiding over the case of alleged enemy combatant and so-called second American Taliban Yaser Esam Hamdi for the right to appeal from an order requiring the government to provide more factual justification for his detention. Update: Courtesy of FindLaw, you can access here the government's motion, filed in the trial court, seeking permission to take an interlocutory appeal.
Posted at 00:36 by Howard Bashman

Monday, August 19, 2002
Louisiana Supreme Court removes trial judge from the judiciary: The Associated Press is reporting tonight that the Supreme Court of Louisiana has removed a trial judge from that State's judiciary "because her office lost court transcripts or turned them in late or inaccurately, leading to the reversal of 11 convictions." You can access the Louisiana Supreme Court's lead opinion here, and two concurring opinions here and here. You can access here an appendix to the high court's ruling.

Will TalkLeft condemn today's action by Louisiana's Supreme Court, because it removed from office a trial court judge whose conduct caused convicted criminals to obtain their freedom? Only time will tell.

Update: TalkLeft has risen to the challenge and -- lest that site disappoint anyone who has come to depend on its consistency of thought -- concludes that the trial judge was treated unfairly. It's great that the Internet has spawned a strong voice for the rights of those accused and/or convicted of crime; why, after all, should victims of crime monopolize our sympathies? My one and only piece of advice to TalkLeft's author -- she should abandon her use of the Royal "we," which I find to be a distracting affectation.

Second Update: Ernie the Attorney, who practices law in New Orleans, writes on Tuesday morning: "there is no question, in my mind, that the Supreme Court did the right thing." Even more recently, Ernie has written a lengthy yet thoughtful response to TalkLeft's commentary on this matter. Ernie's response contains insights that probably wouldn't otherwise readily be available to someone not based in Louisiana.
Posted at 23:13 by Howard Bashman

ABA appoints Philadelphia lawyer to head its Commission on the 21st Century Judiciary: Go get 'em, Ned.
Posted at 23:05 by Howard Bashman

The Seventh Circuit again reminds advocates to include a proper jurisdictional statement in diversity of citizenship appeals: The U.S. Court of Appeals for the Seventh Circuit today issued a unanimous opinion written by Circuit Judge Richard A. Posner, on behalf of a three-judge panel, the second paragraph of which stated:
A jurisdictional issue managed to elude notice by the district judge and -- despite the stakes in the case and the sophistication of counsel -- all four parties (well, three really, so far as legal advice is concerned, because May and the plan have the same counsel). The jurisdictional statement in the appellants' opening brief properly alleges the citizenship of the corporate plaintiff and of the defendants, but with regard to the pension plan states only that it "is a defined benefit plan with its principal place of business in Missouri." The jurisdictional statements in the appellees' briefs state incorrectly that the appellants' jurisdictional statement is complete and correct. It seems that we shall have to keep repeating until we are blue in the face that whenever a party to a diversity suit is neither a business corporation nor a human being, the district judge and the lawyers for the parties must do careful legal research to determine the citizenship of the party rather than content themselves with making a wild stab in the dark, as the parties did in this case when they chose the principal place of business to be the state of citizenship of a pension plan, a choice for which there is no basis in law. While we are about chastising the parties for their insouciance regarding the existence of federal jurisdiction, we note our displeasure at the conduct of the appellants' counsel, Covington & Burling, in having without our authorization appended to its response to our jurisdictional query what amounts to a second reply brief, purporting to correct a factual error in its previous briefs; and in having, in its opening brief, used ellipses in quotations to create a misleading impression of the meaning of the quoted passages. These tactics are especially unworthy of so distinguished a law firm.
Some lawyers don't like to practice in a court where the judges demand actual compliance with the governing rules; me, I prefer it.
Posted at 22:56 by Howard Bashman

Federal trial court certifies chaplains' class action against the Navy: Judge Ricardo M. Urbina of the U.S. District Court for the District of Columbia today certified a class action against the United States Navy in which the plaintiffs allege "a pervasive pattern of religious preferences favoring liturgical Christian chaplains over non-liturgical Christian chaplains." As the first paragraph of the court's opinion explains:
This case comes before the court on the plaintiffs' motion for class certification. The plaintiffs, current and former Navy chaplains, bring this suit alleging that the Navy's policies and practices favor one religion over another in violation of the First Amendment's Establishment and Free Exercise Clauses, and in violation of the Fifth Amendment's Equal Protection Clause. Specifically, the plaintiffs charge that the hiring, retention, and promotion policies of the Navy Chaplain Corps demonstrate an unconstitutional endorsement of liturgical Christian sects over non-liturgical Christian sects. For the reasons that follow, the court grants the plaintiffs' motion for class certification. [Footnote omitted.]
You can access the trial court's entire opinion at this link.
Posted at 19:21 by Howard Bashman

A look at some free speech cases on the U.S. Supreme Court's certiorari docket: The Associated Press this afternoon provides this preview of some First Amendment free speech cases that the U.S. Supreme Court likely will decide whether to review on the merits this fall. First on The AP's list -- a case that challenges a Massachusetts law forbidding target practice on human images at gun clubs. According to the article, gun enthusiasts in Massachusetts are demanding the right to shoot at images of Saddam Hussein and Osama bin Laden. You can access the First Circuit's ruling upholding the law at this link.
Posted at 16:32 by Howard Bashman

Comparing the federal judiciary to OPEC when it comes to law clerk hiring: Today's edition of The Wall Street Journal contains an op-ed written by Chief District Judge James M. Rosenbaum of the U.S. District Court for the District of Minnesota that is severely critical of the federal judiciary's clerkship hiring plan. He calls the current plan "a restraint of trade," compares it to OPEC and DeBeers, and suggests that the judiciary try the free market instead. He also predicts that the current plan will fail just as all previous efforts to regulate judicial law clerk hiring have. One tiny bit of free market irony -- the op-ed is only available in the Journal's paid content section, so I can't provide you with a link directly to the piece right now.
Posted at 13:51 by Howard Bashman

Fourth Circuit refuses to stop Quran discussions at University of North Carolina at Chapel Hill: The Associated Press offers this report. You can access additional information from the University's Web site at this link.
Posted at 11:15 by Howard Bashman

Ohio appeals trial court ruling that found death penalty prosecution too expensive: The Associated Press offers this report. Adam Liptak, in yesterday's New York Times, provided the background of this dispute.
Posted at 09:55 by Howard Bashman

Proudly agnostic: InstaPundit asks for my views on jury nullification. I'm proudly agnostic. I can think of both proper and improper uses of jury nullification, and Professor Glenn Harlan Reynolds's very well written book review on the topic contains examples of both. I'm certainly not calling for an end to jury nullification, if that were even possible.

For those who aren't especially familiar with jury nullification, the term refers to the power that a jury possesses in a criminal trial to find the defendant not guilty even if the facts and the applicable law require a guilty verdict. In essence, twelve citizens whose main qualification is that they haven't found a way to evade jury service (note: I'm personally a big fan of jury service and don't believe that it should be evaded, but I may be in the minority of the general public on that score) are able to override the criminal law currently in effect to find a defendant not guilty even when he or she is guilty.

While I don't oppose the existence of jury nullification, I do question the wisdom of explaining more clearly to juries the availability of the option. If I may generalize greatly, currently criminal juries are instructed by the trial judge at the close of the evidence that the court has the final word on what the law means and that the jurors are not to question the wisdom of the law. Then the jurors are instructed that if they find beyond a reasonable doubt that the defendant did x, y and z, they should (not must) vote to convict.

In his book review, Professor Reynolds suggests that he would favor explaining more clearly to jurors the option of nullification, but he doesn't say how he would phrase such instructions. I have two main concerns.

First, instructions that tell the jury it has the final say on what the law should be -- which is one way a jury could understand being told "you need not convict even if the evidence proves the defendant guilty beyond a reasonable doubt" -- could be used by the jury to rewrite the law in ways that favor the prosecution. In other words, telling the jury "the law is what you say it is" doesn't necessarily always help the defendant. Second, if the jury is to be told expressly of the option of nullification, fairness would dictate that a criminal defendant be allowed to introduce evidence concerning why generally applicable criminal laws shouldn't be applied to his or her conduct. While such "mitigating circumstances" evidence is now a common feature (see, it's not a bug!) of the penalty phase in death penalty cases, making such evidence relevant to the guilt phase of all criminal trials would be something to behold.

For these reasons, when it comes to jury nullification, I favor leaving things as they are.

Update: Since the time of my posting, above, Law Professor Eugene Volokh, over on his blog, filed a post that raises many of the same (and some additional) concerns about jury nullification. (How is Eugene's post, which clocked in at 7:58 a.m. later than my post, which clocked in at 9:20 a.m.? The Volokh Conspiracy is on Pacific Daylight Time, while my blog is on Eastern Daylight Time.) Again, neither I nor Eugene calls for an end to jury nullification; rather, I (and apparently Eugene, too) believe that the current state of things is preferable to one in which jury nullification is expressly made an option for the jury to consider.
Posted at 09:20 by Howard Bashman

Mini Cooper: To see the adorable new Mini Cooper, click here or here (and scroll down a little). With respect to the latter, I hope the little Mets fan doesn't join my rabid Mets fan friend down in Atlanta in hoping for a players' strike based on the horrible performance of the Mets this season. A strike would greatly disappoint this Philadelphia-based Atlanta Braves fan and his seven-year-old son, who has recently become quite a fan, and player, of baseball.
Posted at 09:04 by Howard Bashman

Sunday, August 18, 2002
Announcing "How Appealing for the PDA": A few days ago, a reader currently clerking for a U.S. Supreme Court Justice wrote to ask if I would consider making it more convenient to download "How Appealing" to one's PDA. Drum roll, please . . . . I'm pleased to announce the creation of a companion Web log with the catchy title of "How Appealing for the PDA." You can access it online at

The companion blog will be updated late each night to contain the posts from that day and the day before. "How Appealing for the PDA" will only contain the text of my posts, but none of the links and no archives of its own. When the companion blog is updated, posts there that are older than from the day before will be deleted. Here, on my original site, all posts, and the complete archives, will remain available (Blogger and Blog*Spot willing!). Lastly, if you think this blog is confusing and borderline useless now, believe me it's only worse without the links. So, don't visit "How Appealing for the PDA" unless your purpose is to download the most recent text of this blog to a PDA.
Posted at 23:37 by Howard Bashman

An entry received for the judicial fashion competition: While I'm on the subject of reader mail, a California-based appellate attorney whom I greatly admire sent along the following missive this past Friday:
Loved your post today. If you indeed have critics (the suspension of disbelief that requires is well beyond my current capacities), I'll be happy to supply an unlimited quantity of Orange County water!

By the way, I am trying to locate a wonderful picture to send you that went around in my department after the most recent of the Clinton inaugural festivities. It was of the Justices of the U.S. Supreme Court on their way to the swearing-in. Now, I'd never seen this before (maybe to you down-easters, this is old hat - ha), but the esteemed Justices, to a man and woman, were all wearing the most ridiculous headwear. It was a little, square, close-fitting cap, the silliness of which cannot adequately be verbalized. It definitely needs to make your funny judicial attire discussion, assuming one of us can find it. Searches of Google images are not helping me. Maybe some of your readers at the Court could lend a hand.
I know precisely what headgear this email refers to -- the traditional U.S. Supreme Court cap, but I too have been unable to find any photos on the Web. Anyone willing and able to lend a hand?
Posted at 23:02 by Howard Bashman

"How Appealing" answers its reader mail: The following email arrived yesterday afternoon:
The more I read blogs (and I have only just started, being referred to this blog by the greedy clerks board), the more it appears that 75% of what is posted is actually useful information and opinions, while the remaining posts are dedicated to plugging other blogs, pointing out where your blog has been plugged and returning the favor, pointing out where someone returned the favor and likewise returning that favor, and so on.

The more posts like this appear, the more I begin to feel like an outsider to the 'blog clique.' It's as if there is some party where everyone knows each other and I am merely eavesdropping.

I truly appreciate the information you provide, and I hope you will endeavor to avoid the spiral of blog-plugs.


p.s.: I simply did not get the post about Alice W. launching a bid to clerk for Judge Selya. Was there a link missing or was the point that she should clerk for Selya because of her vocabulary? (The irony of the preceding question is not lost on me).
Well, Ted, here is my response:
If you find 75% of what's discussed on my blog to be useful, you're probably way ahead of most people. The only person guaranteed to understand 100% of my blog is me, and even that might be pushing it. (For the overly literal reader, might I actually be saying I don't understand 100% of what's on my blog? Looks like it. Am I trying to be funny? Maybe.)

As for Alice W., I think you actually did get the joke, and thus perhaps deserve credit for understanding 75.01% of my blog.

In all seriousness, I'm continually amazed at just how many people read every last word of what I write on the blog. This either suggests that I'm writing something somewhat interesting or their lives are pitifully dull. Between those two choices, I prefer the former. So many other blogs have a far wider focus than mine, and with those I find myself skimming, skimming, and skimming in the hope of finding something interesting. So if I connect with you 75% of the time, I am way ahead of the game.

The incestuous nature of blogs -- someone mentions me, I mention them, etc. -- is just a way of trying to share the spotlight. In all likelihood, it was that sort of a mention that brought you to my blog. In other words, even if you had never read a blog before seeing mine, chances are that some other blogger mentioned mine, and that brought my blog to the attention of the person who mentioned it to you.

In closing, thanks for taking the time to write, and please do keep reading if you are so inclined.
Happily, Alice W. seems to have gotten the joke, too. Finally, and in the spirit of this discussion, I offer tonight's SysTem Of A DoWn lyric: "What do you own the world? How do you own disorder?"
Posted at 22:33 by Howard Bashman

Carrying on the debate over federal judicial recess appointments: There is a strong historical argument in favor of recess appointments to the federal judiciary, as Skip Oliva notes in a brand new post on his blog, responding to an email that I quoted here last night. And, indeed, I have already conceded the historical support for the practice.

Whether the practice is constitutional or not, what is interesting to me is the apparent lack of interest in challenging it. Of course, the Executive Branch has zero interest in challenging the constitutionality of judicial recess appointments because it is making the appointment. The Legislative Branch has shown no interest beyond passing a law requiring that many recess appointees serve without pay (ouch!). As for the Judicial Branch, reported appellate decisions exist in only two appeals challenging recess appointments of federal trial court judges (you can find cites to these cases here in my article). A three-judge Second Circuit panel unanimously rejected such a challenge in 1962. An eleven-judge en banc panel of the Ninth Circuit upheld the lawfulness of the practice by a vote of 7-4 in a decision issued in 1985. And, for reasons both obvious and not so obvious, it would be even more difficult to challenge the legality of a recess appointment to a federal appellate court.
Posted at 21:58 by Howard Bashman

A remarkable discussion of race and its impact on judging: Thanks to a reader for an email directing my attention to a post this morning by Susanna Cornett about an en banc ruling last month from the U.S. Court of Appeals for the Eighth Circuit and a federal district judge's quite remarkable reaction thereto. The conclusion of U.S. District Judge Charles A. Shaw's opinion on remand, issued August 2, 2002, provides a hint of just how out-of-the-ordinary his opinion is:
The recusal and racial issues discussed herein weigh heavily on this court's mind. The disrespect that this court feels has been visited upon it by fellow Article III judges makes the orderly administration of justice extremely difficult, if not impossible, in further presiding over this case. This court has struggled with and prayed over its heretofore expressed concerns, and affirms its sincere commitment to its judicial responsibilities, the fundamental requirement of judicial impartiality, and the rule of law. Nevertheless, these concerns have caused this court such extreme discomfort that it is inappropriate for the undersigned to have any further involvement with this case. For this reason, this court hereby recuses itself. Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly reassign this case to another judge.
And, as a second example, consider this earlier excerpt from Judge Shaw's decision on remand:
8. On rehearing of the appeal en banc, a majority of six white men conclude that Moran established a plausible case of, among other things, "improper consideration of his race" by a police department headed by an African-American.

9. The appellate minority of four judges, two white men, one white woman and an African-American man, disagrees with the majority's substantive due process analysis and observes that the majority "introduces possible racial bias . . . into the equation, when Moran neither pleaded an equal protection claim nor alleged in his complaint that any defendant's conduct was racially motivated." The minority describes the "I want the white sergeant" statement relied on by the majority as "one scrap of testimony that has little or no credibility."

Despite the foregoing, the majority's decision claims ignorance of the racial issue by stating that "[t]he record on appeal does not clearly set forth the race of the various parties and participants . . . ." It has often been said that justice is blind but the appellate majority appears to embrace willful blindness with respect to issues of race. It is patently obvious which of the primary protagonists in this case are black and which are white. The appellate majority places great weight on evidence that Chief Henderson said he wanted the "white sergeant." The four dissenting judges recognize that Chief Henderson is African-American. The majority explicitly recognizes that plaintiff Moran is white. As to Gregory Bell, the majority refers to a May 22, 1998 report of the Police Department's monetary settlement with the Bell family in the St. Louis Post-Dispatch. This reference, along with the surrounding facts and circumstances of the case, raises an inference that the appellate majority may also have some awareness of Bell's race.

With regard to the race of the judges herein, we all know each other. As to Clarke and Smith, the deposition of Clarke allows for an inference as to their race. Furthermore, Clarke and Smith are prominent, well respected and publicly active attorneys in the St. Louis community.

It appears that the appellate majority may be in denial with its refusal to acknowledge the race of the parties and participants involved, or perhaps wishes to appear color-blind and above issues of race. In any event, the undersigned is at a loss to explain the majority's justification and reasoning for choosing to demean the character of this court with such zeal. The majority goes beyond inference and resorts to rank speculation with regard to this court's relationship with Clarke. The undersigned is left with the deeply troubling impression that had I been white, or had plaintiff Moran been African-American, and all the other facts of this "hard case" remained the same, the majority's opinion on the recusal issue would have been significantly different.

If this court has wrongly inferred that race played a role in the majority's decision, please allow it to apologize. Yet, at present this court remains offended, insulted, troubled and confused not only by the attack on its impartiality, but also by the disparaging tone of the majority opinion, its conflict-supportive word selection, and its blatant refusal to acknowledge the race of the participants, much less the underlying racial issues so clearly present in this case.

[citations and footnotes omitted]
I don't know enough about this case right now to offer my views -- indeed, I've yet to read closely the Eighth Circuit's en banc opinion, and I've only skimmed the trial judge's decision on remand. Nevertheless, I can say that the trial judge's opinion on remand is quite remarkable and definitely newsworthy, and in that spirit I am offering up these items for further consideration.
Posted at 14:04 by Howard Bashman

InstaPundit discusses jury nullification: Another reason in favor of blogging on the weekend: one could spur Glenn Harlan Reynolds to pen some especially thoughtful remarks.
Posted at 13:24 by Howard Bashman

In Sunday's newspapers: Forget, for a moment, about whether the death penalty is unfair and has too high a risk of error; Adam Liptak reports in today's New York Times that one Ohio trial court judge prohibited the prosecution from seeking the death penalty simply because defense costs would bust the budget. But here's the rub -- not having the death penalty in play, according to the article, means that the defendant can't receive the sentence of life imprisonment without the possibility of parole. In today's edition of the New York Times Magazine, soon-to-be-former Minnesota Governor Jesse Ventura expresses his agreement with the Ninth Circuit's ruling in the Pledge of Allegiance case.

Today's edition of The Washington Post has a front page article reporting that lie detector tests are increasingly being relied on by corporate America. Finally, today's edition of The Los Angeles Times reports on the uproar in Hawaii over an "already rancorous debate statewide about race, preferences and sovereignty." (Some readers of "How Appealing" may remember that Adam Liptak had a similar article in The NYTimes back on July 27, 2002.)
Posted at 10:58 by Howard Bashman

In next week's Newsweek magazine: Newsweek, in its issue dated August 26, 2002, finally gets around to discussing the phenomenon of blogging (see here and here).
Posted at 10:51 by Howard Bashman

Saturday, August 17, 2002
Recess appointments to the federal judiciary -- a final point, for now: Good news for those who fear I may be spending too much time on this blog. The moment is fast approaching when the blog will nearly write itself. When I put out the call, and even when I don't, this blog's incredibly intelligent and thoughtful readers send me emails responding to arguments with which they (and often I) disagree. Here's one recent example of a very well-argued reader-supplied response. And below I quote another, which arrived via email just moments ago.

This morning, I linked to another blog's different take on the President's power to make recess appointments to the federal judiciary. Tonight, this guy, a regular contributor to the Greedy Clerks Board and someone who previously endorsed my views questioning the constitutionality of such appointments, writes in his email:
I'm sure you realized this already, but there's an obvious problem with Skip Oliva's argument regarding recess appointments. Assume he's right and the recess appointment power applies only to vacancies that become newly vacant while Congress is out of session. So what? The fact remains that making a recess appointment to the federal judiciary--even under these much narrower circumstances--conflicts with Article III's tenure and salary protections. And since tenure and salary protection are essential to being an Art. III judge, recess appointments for Art. III judges are unconstitutional. So Skip Oliva may make a nice point, but it doesn't clash with your basic argument about the constitutionality of recess appointments.

I've long (well, relatively) held the view that all Art. III judges, whether S.Ct., CTA, or D.Ct., are institutionally equal to each other. By this, I mean that Art. III's tenure and salary protections render them all equal when it comes to exercising the judicial Power of the United States, that is, the power "to say what the law is." The hierarchical judicial structure we have today is a later-developed expedient for structuring how the body of Art. III judges exercises its power. Just because some Art. III judges can overrule some other Art. III judges and bind them to a certain extent via stare decisis, that doesn't mean that all Art. III judges are not equally competent to say what the law is. (I think this accords with Justice Jackson's view that "we [the S.Ct.] are infallible because we are final.") In other words, the similarity among judges inherent in their institutional protections afforded by the Constitution is far more fundamental to the exercise of the judicial Power than the (mere?) happenstance of where their office is in the judicial hierarchy established by Congress.

On this view, Art. III's tenure and salary protections are the most important things about federal judges, and any "judge" lacking them---like a recess appointed judge---just isn't a true federal judge.
That's good stuff, and I didn't have to write any of it! (Note to self: If you ever become a judge, remember to have law clerks who are just like this guy.) And speaking of the Greedy Clerks Board, the time has come for me to reveal the poster's pseudonym in use there that amuses me the most -- the Simpsons inspired (yet still judicially-related) "Mmmm, Burger (C.J.)." Fans of The Simpsons might enjoy accessing sound files of Homer saying that and many other funny things at this link.
Posted at 22:11 by Howard Bashman

UNC Islamic book dispute now on appeal: The Associated Press is reporting that a conservative Christian group's effort to stop the University of North Carolina at Chapel Hill from going forward with its assignment asking incoming students to read a book about Islam has moved to the U.S. Court of Appeals for the Fourth Circuit. Now I know better than to blithely rely on the popular press for absolute accuracy in reporting on court proceedings (sorry, popular press, I do still love ya!), but the reports I read about what happened in the trial court said that the court had denied the conservative group's request for a temporary restraining order. The denial of a TRO usually doesn't produce an appealable order. So, unless the trial court also tossed out the whole case, the Fourth Circuit could just deny the appeal for lack of appellate jurisdiction. (For all you appellate jurisdiction experts out there, the distinction I'm trying to draw is that the grant or denial of a TRO usually isn't appealable, while the grant or denial of a preliminary injunction usually (and I wish I could say "always") is.)
Posted at 15:08 by Howard Bashman

Alice W. launches her bid to clerk for First Circuit Judge Bruce M. Selya: If I may so boldly asseverate, she certainly possesses the vocabulary for it (click here for an example of Judge Selya's extraordinary vocabulary). P.S. to Alice: Please try to be nicer to Dahlia, whose truly wonderful writings far outnumber any that don't fit into that category (which is more than can be said for many authors the public admires).
Posted at 11:19 by Howard Bashman

Five beats four except in golf: As I wrote here back on May 28, 2002, "Perhaps the most divisive issue to roil the Supreme Court over the past five to ten years" is the dispute over the Eleventh Amendment's meaning and the issue of congressional "intrusion" on States' rights. New York Times correspondent Linda Greenhouse -- the dean of U.S. Supreme Court news reporters -- has a book review in tomorrow's NYTimes of "Narrowing the Nation's Power: The Supreme Court Sides with the States," written by Senior Ninth Circuit Judge John T. Noonan, Jr.

Note to Judge Noonan -- Ms. Greenhouse isn't predicting that you've got a bestseller on your hands.

Thanks to both Stuart Buck and Sam Heldman for the pointers to these items. P.S. An etiquette note -- see how nice it is to thank fellow bloggers for pointing out stuff? In their current posts, both Stuart and Sam link to the second page of the NYTimes book review. Coincidence? Possibly, because neither Stuart nor Sam thanks the other for having drawn the book review to his attention. Me, I've linked to the marvelous "full page" view of the book review, so no additional clicking is required here. What a service I provide!
Posted at 10:47 by Howard Bashman

Another view on the lawfulness of federal judicial recess appointments: Non-lawyer Skip Oliva offers his views on the lawfulness of federal judicial recess appointments and suggests another quite radical way for the President to establish leverage in the battle. He too appears to have been up early this morning blogging, although it doesn't seem that Skip (unlike Max) has yet come to Moxie's attention.
Posted at 10:32 by Howard Bashman

Power to the Max: Max Power, over on his blog, has mentioned me a couple of times between last night and the early hours of this morning, so I'm now returning the favor. He wrote last night that "For a month I've been on the borderline of deciding whether to shut down the 'Max Power' persona and start a new Howard-Bashman-style blog under my real name and focus on a single subject." But Max, for all I've got going here, little pseudonymous ol' you have managed to capture the attention of Moxie. So you've certainly already made the right choice of blog style. Now go get some rest instead of blogging the whole entire night away, man!

P.S. The outcry for more Howard Bashman-style blogs is obviously starting to grow. You heard it here first.
Posted at 10:21 by Howard Bashman

Speedy trial act requirement still has teeth: So the Fifth Circuit has indicated, in this opinion issued yesterday. To see the text of the Sixth Amendment -- the amendment that requires a speedy trial in criminal cases -- click here.
Posted at 10:05 by Howard Bashman

Friday, August 16, 2002
No quarter: A reader of this blog whose request for anonymity I am honoring -- and thus who may or may not be from Indiana -- responded to my most recent post that linked to some Indiana-based views on the federal appellate judicial confirmation quagmire. The email states:
I actually don't think there are solid legal arguments against the Senate using "ideology" as a criterion in carrying out its "advise and consent" function. What is truly awful about the judicial-confirmation process today is not so much that "ideology" is considered, but that nominees' "ideologies" are caricatured, misrepresented, and defined by extremists who are more interested in fundraising-letter fodder than a well functioning judiciary. No sober, serious person thinks that John Roberts, Michael McConnell, and Jeff Sutton are radical, crazy ideologues. And yet, we're told by handwringing staffers and Senators that there are "concerns" about their fitness, and that the President should send up more "mainstream" nominees. This is nuts. John Roberts is the best appellate lawyer in the country, and Michael McConnell enjoys the support of something like 600 law professors. Clearly, the "mainstream" is far broader than Senators Leahy and Schumer, or Ralph Neas, think it is. Support for parental-notification laws does not an extremist make. The fact is, Neas, Leahy, and Michelman are not screening for fringe ideologues, they are simply demanding loyalty oaths. So: If the Senators want to consider ideology, fine, but they should not let the benchmarks be determined by groups like PFAW or NARAL -- groups that are, themselves, far removed from the American political and legal center.
My correspondent's email also broaches the possibility of judicial recess appointments -- a practice I view as unlawful whether engaged in by a Democratic or Republican President. The subject of recess appointments has also arisen over on the Greedy Clerks discussion board (see here and here, for example), and I seem to have convinced those two anonymous contributors of the unconstitutionality of the practice. By the way, this blog generated a slew of email today, and I thank all who took the time to write.
Posted at 23:53 by Howard Bashman

In California, capital punishment is dying a slow death: Scott Graham of The Recorder offers these views. Among his observations: "Seven death sentences reversed in a row by the Ninth Circuit U.S. Court of Appeals. Only three executions in California in the past three years."
Posted at 23:44 by Howard Bashman

Hamdi case still providing little judicial happiness: Today the federal district judge presiding over the case of the so-called second American Taliban, Yaser Esam Hamdi, issued an order requiring the federal government to provide the very same information that the government tried not to provide in the last go-round on the matter -- plus, for good measure, the court denied the government's reconsideration motion. According to news reports (AP here; Reuters here) the government is "assessing its options" -- which, where I come from, means drafting appellate papers to be filed very soon in the U.S. Court of Appeals for the Fourth Circuit.
Posted at 23:38 by Howard Bashman

Shhh! It's a secret -- the never-mentioned power of jury nullification: If someone were to propose a group blog where each participant got to cover a single federal circuit court, I'd certainly try my best to be selected to cover the U.S. Court of Appeals for the Ninth Circuit because it far and away provides the most -- and the best -- material on which to comment. Take, for example, today's divided three-judge panel ruling addressing whether the standard grand jury instructions in use in the federal court system adequately advise the grand jury that it is under no obligation to indict even if the prosecution has established probable cause. But first . . . a little background.

At issue in today's decision is the matter of "jury nullification." If you've ever served on a jury you might be wondering what in the world I'm talking about, because juries simply aren't told that they possess the power, in their discretion, to find in favor of the defendant even if the evidence and the court's instructions would mandate a finding in favor of the government. In federal court, there are two types of juries in criminal matters. There's the regular old jury that decides whether the defendant is guilty or not guilty, and that jury is technically known as the "petit jury." Before a felony charge can be brought against a defendant, however, the Fifth Amendment to the U.S. Constitution requires that a grand jury return an indictment. Now, grand juries are run under the auspices of a federal district court, but the prosecution effectively controls the grand jury's actions. The defendant and his attorney have no right to participate in the grand jury process. The prosecution brings an indictment to the grand jury, presents some evidence, and then asks the grand jury to agree that probable cause exists to issue the indictment. And probable cause, in this context, means simply evidence that is sufficiently strong to cause a reasonable person to believe that the accused is probably guilty of the offense(s) at issue.

The law is well established that petit juries -- the ones that decide a defendant's guilt or innocence -- are not to be told of the option of jury nullification. They can refuse to convict regardless of the strength of the evidence, but jury nullification simply is not an option expressly given to the jury for the reasons discussed in today's Ninth Circuit ruling. The question presented in today's case, however, was whether the instructions given to the grand jurors when they are sworn into service adequately communicate the option of nullification. In fact, those instructions in their current form contain nothing that expressly addresses the question of nullification; at most, some inferences can be drawn from the use of the word "should" rather than "shall." (Don't laugh -- we lawyers get paid the big bucks to argue the difference between should and shall, may and must, and when or means and and and means or.) Another point worth noting is that when a petit jury exercises nullification and finds a defendant not guilty, the protection of double jeopardy kicks in, preventing the government from trying the defendant on those charges a second time. When a grand jury refuses to issue an indictment (like that ever actually happens!), no double jeopardy issues arise. The government is free to return the next month to the next seated grand jury and ask for the same indictment to be approved that the prior grand jury had rejected.

The majority in today's case ruled that the current standard grand jury instructions, which do not expressly mention the option of grand jury nullification, are completely lawful in all respects. In a stirring dissent, Ninth Circuit Judge Michael Daly Hawkins argues that the instructions should be declared unconstitutional. Judge Hawkins writes in his dissent:
My own predilection would offer language instructing the jurors that they are the conscience of the community and are not bound to indict in every case where a conviction can be obtained. This may have the effect of creating more dialogue among grand jurors and prosecutors. Such exchange would be a step in the direction of greater civic participation in the practice of federal criminal justice.
Now I've got to give Judge Hawkins credit for the passion that he brings to his argument, and for the sheer boldness of it, but I'm entirely unpersuaded by it. Jury nullification is something our system endures because there's no other alternative, but it's not something to be encouraged. And, as an added bonus, Judge Hawkins's preferred outcome would call into question the convictions of all criminal defendants whose cases are now pending on appeal. It's one thing to strike down the Pledge of Allegiance, but it's quite another thing to require the invalidation of hundreds if not thousands of criminal convictions of people who had been proved guilty beyond a reasonable doubt simply because some grand jury might have refused the indictment under the lesser probable cause standard. Thanks to Senior Ninth Circuit Judge Robert Boochever and Philadelphia-based Senior District Judge Charles R. Weiner, sitting by designation from the U.S. District Court for the Eastern District of Pennsylvania, the Ninth Circuit doesn't have to face the huge disruption that the holding preferred by Judge Hawkins would have caused. (For those who care about such things, all three judges on the panel were Democratic appointees, and each of the last three Democratic Presidents was responsible for nominating one of the judges on the panel.)
Posted at 22:49 by Howard Bashman

Thieves serve coffee: Jesse Lichtenstein, in this week's New Yorker, takes a true story and runs with it.
Posted at 20:20 by Howard Bashman

Please indict this ham sandwich: The saying goes that a good prosecutor can have a grand jury indict a ham sandwich. Today a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled on whether the standard grand jury instruction in use in the federal court system adequately advises the grand jury that it is under no obligation to indict even if the prosecution has established probable cause. You can access this very interesting decision here.
Posted at 14:47 by Howard Bashman

Minnesota's highest court decides that man who lost wife to pastor can sue him: A reader who via email kindly volunteers to be my newest source of appellate news from Minnesota has forwarded along news of this decision issued yesterday by the Supreme Court of Minnesota. That state's intermediate appellate court had dismissed the suit, explaining: "By interpreting and analyzing the language and intent of the ministers handbook, the district court did precisely what the First Amendment forbids, resulting in the excessive entanglement of the district court in religious doctrine, practice, or church polity. Resolution of the negligent counseling claim would therefore violate the First Amendment." The Supreme Court of Minnesota's ruling reverses that dismissal and reinstates the lawsuit. The Minneapolis Star Tribune offers this report. The St. Paul Pioneer Press provides this coverage.
Posted at 14:22 by Howard Bashman

Judge's campaign tactics questioned in Florida: The AP offers this report.
Posted at 14:11 by Howard Bashman

Launch pad delay at the "rocket docket": The start date for Zacarias Moussaoui's criminal trial has been postponed to January 6, 2003, with interviews of potential jurors to begin on December 9, 2002. You can access here the court's order. You can access here a news report from The Associated Press.
Posted at 14:06 by Howard Bashman

Massachusetts high court rules priest can't sue church for slander: You can access here The AP's report. Unfortunately, you must have more computer skills than I possess to access online the opinions of the Supreme Judicial Court of Massachusetts, so right now I can't provide a link to the ruling.

Update: Not only does she run a fine site, but she knows helpful stuff, too. Thanks to Alice W. for sending along a link to this ruling (click here and select the link for Supreme Judicial Court opinions and then, from that page, select the link for the Hiles v. Episcopal Diocese of Massachusetts case).
Posted at 11:46 by Howard Bashman

File under "courthouses are expensive": See this report from The Associated Press.
Posted at 11:38 by Howard Bashman

Trial date set for Mrs. Condit's libel suit: The Los Angeles Times has this report today on the status of the libel suit that the wife of Congressman Gary Condit has brought against The National Enquirer.
Posted at 11:25 by Howard Bashman

Infinity plus one: The readership of "How Appealing" continues to grow, bit by bit, day by day, and for that I say thank you. Who reads this blog? Joining regular folks like you and me are reporters for The New York Times, The Washington Post, and, writers for Slate, National Review Online, and The Philadelphia Inquirer, former and current judicial law clerks serving on the U.S. Supreme Court, intermediate federal appellate courts, and state courts, and many other important people who either have emailed in the past, or who should have no hesitation to email in the future, to share words of praise or disagreement (and sometimes both). This week, in the middle of an oppressively hot August, "How Appealing" has received between 1200 and 1500 page visits per day. That's up a bit from the amount of visits this blog had on the first full day of counting, May 7, 2002, when the number was 33. This blog's readership is sure to continue to grow, especially in the very near future, as law professors throughout the nation begin recommending this site to law students who will report for classes in the days and weeks ahead.

As a result, this is not only now the most popular Web log written by a blue-eyed, brown-haired appellate lawyer born in Philadelphia, Pa. in late October 1964, but it may also be the most popular law-related blog written by a lone individual (I was going to say "single person," but alas I'm married), and the second most popular law-related blog there is. (Yes, The Volokh Conspiracy is more popular, and deservedly so.) (P.S. I'm ready to issue retractions pertaining to this paragraph if anyone shows me to be wrong.) (P.P.S. Is a blog? If so, I probably need to alter my rankings a notch.)

One byproduct of my blog's popularity is that, thanks to you my readers, I have the ability to forward a good number of readers elsewhere via the links and mentions I provide here. I'm no InstaPundit, mind you -- I'm far from it -- but I have the ability to send along a few more readers than that hypothetical blogger who writes principally about belly-button lint. For example, over the past few days I've linked several times to the wonderful, Lewis Carroll-inspired law student Web log "Who Stole the Tarts?" Early this morning I received an email from that site's author noting that she "ha[d] 600 unique visitors (944 visits). 339 of them came from you!" So, if I understand the email correctly, I've originated over half of her site's traffic in its infancy, and now, perhaps, even more. And that's how this all works, folks! Others were kind to link to me back when this blog was brand new, and I somehow managed to get and keep the attention of many of those visitors, for which I'm pleased as Punch (no, that doesn't refer to a certain publisher).

As this blog has become more established, there are some who have expressed concern that maybe a neutral link provided here to a controversial person or view represents my endorsement of the individual or his or her positions. I have two answers. First, I link to things that I find interesting and think that you may find interesting, whether I agree with them or not. (For example, happy thirtieth birthday gummi, and this guy's very interested in both Sammy Sosa and Anna Kournikova, while I'm only obsessed with Anna.) Second, if I agree or disagree with something to which I am linking and care to share my views, I know full well how to do so explicitly and unambiguously. So, I invite my critics (or perhaps I should say "critic," because I know I've at least spawned one) to lighten up, but also to keep visiting and reading. For everything about this blog that has captivated or dumbfounded you, made you feel happy or exasperated, there's plenty more to come in the days, weeks and months ahead.
Posted at 10:03 by Howard Bashman

On candor and blogging: Supreme Court of Appeals of West Virginia Clerk of Court Rory Perry shares his views, at his blog, on my recent post that took issue, in part, with the argument Hugh Hewitt advanced about what's required to be a successful blogger. I've also added a comment, on Rory's site, responding to his post. Perhaps an even more interesting question is what defines "success" in the world of blogging? I may have some thoughts about that posted here soon, and it's also a topic I'm sure to revisit from time to time in the future.
Posted at 09:56 by Howard Bashman

"Deciding when a slur is a crime": Today's edition of The Philadelphia Inquirer contains an excellent essay by lawyer/columnist Mitchell Sommers addressing the very difficult question of when racist speech can and should be criminalized.
Posted at 09:41 by Howard Bashman

Eight glasses a day? I vaguely recall seeing in the past few weeks a news report that eight glasses of water per day is more than most people actually need to consume. Residents of Orange County, California may view that as good news in light of this story, courtesy of MSNBC and The Wall Street Journal.
Posted at 09:24 by Howard Bashman

In Friday's Washington Post: A news article reporting that the U.S. Court of Appeals for the Fourth Circuit has rejected the death penalty appeal of the man who shot five people (two of whom died) outside the grounds of the CIA (you can access here the court's opinion); an editorial asserting that U.S. military detainees held outside of this country matter too; a piece by columnist Charles Krauthammer arguing that both sides are right in the Hamdi case; and an editorial that comments on the ethics dispute swirling around the Court of Appeals of Maryland, that State's highest court, in connection with a legislative redistricting case.
Posted at 00:17 by Howard Bashman

Thursday, August 15, 2002
In tomorrow's Christian Science Monitor: Friday's edition of The Christian Science Monitor contains three items of note. First, the Monitor contains an editorial proposing ways to reform judicial elections in States that have them. Could the Monitor's editorial writers have been reading my recent post on the subject, which linked to my column from last September in which I proposed many of the same reforms? Second, the Monitor contains an article entitled "Pressure up to balance rights and security in terror war: Federal judges and the bar association rebuke secrecy of detainee identities." Finally, tomorrow's edition contains an op-ed by a writer affiliated with the Carr Center for Human Rights Policy at the John F. Kennedy School of Government, Harvard University, entitled "Moral relativism won't defeat terrorists."
Posted at 23:44 by Howard Bashman

Law student bloggers react to a defection from the federal judicial law clerk hiring plan cartel: Two law students, each with an intelligent and entertaining blog, react (see here and here) to my recent post about a federal appellate judge who has gone on record as not following the federal judicial law clerk hiring plan.
Posted at 23:38 by Howard Bashman

Four items worth a look from Now available online via -- 1. A profile of the federal district judge presiding over the Yaser Esam Hamdi case, and, guess what, he has a reputation for being hard on the federal government. 2. A lengthy profile of the first Hispanic Supreme Court Justice appointed by Bush. Appointed by Jeb Bush, that is, to the Supreme Court of Florida. 3. An essay (a) arguing that Justice Scalia has saved the federal sentencing guidelines from unconstitutionality and (b) explaining a possible basis for Justice Scalia's vote in United States v. Harris (you can access here my original post about that decision, and oh what an informative and entertaining post it was!). 4. An article reporting that "An unusual alliance of California Supreme Court justices banded together Thursday to produce a ruling that weakens criminal suspects' Miranda rights in certain situations." You can access that very interesting California Supreme Court ruling at this link.
Posted at 23:03 by Howard Bashman

Point, counterpoint: Law Professor Jeff Cooper, over at his blog, has penned a very thoughtful explanation of why he disagrees with some of the matters I raised in a recent post that examined the drawbacks of the various methods of selecting judges in the United States. Coincidentally, Dawn Johnsen, a law professor at Indiana University School of Law in Bloomington, recently published an essay in The Washington Monthly that suggests she too might disagree with my views. The coincidence, by the way, is that Jeff serves as a law professor at Indiana University School of Law in Indianapolis. Umm, any of my readers in the South Bend, Indiana area wish to come to my defense?
Posted at 22:28 by Howard Bashman

Some additional thoughts elsewhere about bonding with the Establishment Clause: Yesterday I mentioned here that a divided Sixth Circuit panel had decided a case involving tax exempt bonds and the Establishment Clause. Fritz Schranck, over at his blog, has much more to say about the ruling. And, if you scroll to the bottom of his blog's front page, you'll see that Fritz is organizing a "beach blogger weekend" in Delaware this fall that I hope my schedule will allow me to attend. Fritz has compiled a very impressive guest list for the event, which I'm sure he will announce when the time is right.
Posted at 22:01 by Howard Bashman

Temporary restraining order to block reading of Islamic book at UNC denied: The Associated Press is reporting this evening that a federal district judge has refused to block an assignment given to incoming students at the University of North Carolina at Chapel Hill that required them either to read a book about Islam or write a short essay explaining why they refused to do so (the University has issued this fact sheet on the controversy). My very first post on this matter suggested that this lawsuit was "absurd," so I'm not at all surprised that plaintiffs' request for a temporary restraining order has been rejected.
Posted at 21:42 by Howard Bashman

Dahlia Lithwick says don't go to law school, but here's some advice if you do: Her latest effort is now available online here, courtesy of Slate. And thanks for speaking kindly (I think?) about those who "make law review, clerk for a Reagan appointee, and spend the rest of their days in a leviathan corporate law firm where they will do whatever it is that's done in such places."
Posted at 17:01 by Howard Bashman

Before the "kids" arrive, Professor Volokh gets some serious blogging done: Just as law students are on the verge of reporting for another year of learning, Eugene Volokh has found time to address several issues of great significance over on his blog (see here and here).
Posted at 14:54 by Howard Bashman

This just in from the District of Columbia federal district court: U.S. District Judge Gladys Kessler has today entered the following order:
On August 2, 2002, this Court ordered the Government to produce a list of the identities of all individuals detained in connection with the investigation of the September 11, 2001 terrorist attacks, and a list of the identities of their attorneys. The Government has filed an appeal, will ask the Court of Appeals for expedited consideration, and now seeks a stay of this Court's Order pursuant to Fed. R. Civ. P. 62(c).

Given the fact that stays are routinely granted in FOIA cases; that disclosure of the names of the detainees and their lawyers would effectively moot any appeal; and that the Government has promised to seek expedited consideration from the Court of Appeals; the Court deems the granting of a stay appropriate.
You can access a copy of the order at this link.
Posted at 14:48 by Howard Bashman

Dear Mr. President: Stuart Buck has some advice for President Bush on the subject of longtime pending judicial nominations to the federal appellate courts. It's good to see that some really important people are reading Stuart's blog too.
Posted at 11:53 by Howard Bashman

Further demonstrating the inadequacy of money: Not even one trillion dollars can compensate for the once unimaginable losses that these plaintiffs have suffered, but perhaps it will help ensure that those allegedly responsible for bankrolling terrorism won't be able to cause us harm again anytime soon.

Update: You can access the plaintiffs' complaint here, courtesy of FindLaw. Caution! This is a very large PDF file.

Additional Update: Since my first posting, has changed the substance of the article that I originally linked to, above, to report that the value of the suit is in fact $116 trillion. The rest of my original remarks remain applicable.
Posted at 11:44 by Howard Bashman

Some comments on's U.S. Supreme Court advocates' round-table: Law librarian Leah Sandwell-Weiss, who works at the James E. Rogers College of Law of the University of Arizona, in Tucson, Arizona (a town that I love to visit, especially in the winter), anticipates over on her blog that I might offer some substantive commentary about's U.S. Supreme Court advocates' round-table. Well, I did link to the item the other day. But the round-table discussion was very informative, so let me highlight two points that I found especially worthy of emphasis.

First, the participants in the discussion, who have collectively argued a whole slew of U.S. Supreme Court cases, agreed completely with the proposition that oral argument in that Court rarely if ever has any impact on the outcome of a case. Indeed, the discussion suggested that even the merits briefing -- the briefing that occurs after the Court grants certiorari -- doesn't have a tremendous impact on the outcome of most cases. Not sure I agree with that last point. But I certainly do agree that perhaps the most important point of the whole process, for the party that is happy with the result achieved in the court immediately below the U.S. Supreme Court, is the brief in opposition to the petition for writ of certiorari in cases where the grant or denial of certiorari will be a close call.

Second, and finally, I will merely quote the following remarks from former Acting Solicitor General Walter Dellinger about how often the most important work for appellate lawyers and their clients occurs in the appellate courts below the U.S. Supreme Court:
If you're a firm with large clients and ongoing clients, often the most important case for those clients is the case that may be in an intermediate state court. That's the place to overturn an $80 million punitive damage charge, rather than trying to take a long shot at certiorari. And sometimes the cases that wind up in the Supreme Court are not particularly important to a client. It may be a single employment discrimination case, for example, where it involves one employee, whereas you could have a company that has a $3.42 billion claim pending before a state supreme court that is much more important. So I think if you're thinking in terms of what a practice looks like, it's really an overall appellate practice at the major firms and where you've got to keep your eye on the ball in the lower courts.
Now I may be biased, because the appellate courts about which Dellinger is speaking are the ones on which I focus my practice, but I think that he is absolutely right-on in his views. It is far better to get experienced appellate attorneys involved in complicated and important cases at the earliest possible time rather than only after it will take a miracle to achieve victory.
Posted at 10:43 by Howard Bashman

Judicious fashion: This blog usually avoids the hard and pointless questions (such as, how is it that a female federal appellate court judge has the first name "Frank"?), because they're, well, . . . so very hard and pointless. But given how frequently the Court of Appeals of Maryland, that State's highest court, has been in the news lately, today "How Appealing" must ask whether the robes the judges on that court wear are the least attractive judicial attire now in use in this country. Need examples? Click here, here, or here. Nominations for even worse looking judicial attire currently in use within the United States will be accepted by email.
Posted at 10:31 by Howard Bashman

In Thursday's newspapers: An editorial in today's Washington Post proposes a stunning suggestion on how to solve the impasse over whether the U.S. military may continue to hold Yaser Esam Hamdi as an enemy combatant -- just ask Hamdi "Are you now, or have you ever been, an enemy combatant?" The answer might also shed some light on his I.Q. score. Additionally, today's Post reports that the controversy over whether state legislators had improper contacts with the judges serving on Maryland's highest court has spawned a criminal inquiry.

Those who think that the trial courts of our Nation's deep south are most hospitable to class action lawsuits may learn something from Adam Liptak's article in today's New York Times. Liptak reports that the courts of Madison County, Illinois lead the nation in class-action filings on a per capita basis. The article makes no mention, however, of the county's bridges.
Posted at 10:15 by Howard Bashman

Wednesday, August 14, 2002
A concise summary of the history of mankind: Fifth Circuit Judge Jacques L. Wiener, Jr., began his dissent in this asylum case yesterday as follows:
Recorded history is replete with examples of class struggles over land between the land-less and the landed. Some clashes have been armed and violent; others have been political and non-violent. In most instances, the land-less protagonist comprised the poor, the dispossessed, the disenfranchised; the landed protagonist comprised the wealthy, the socially prominent, the politically potent. In combination, these traits have produced multi-faceted motivations, defying analytical efforts to isolate any single factor as the sole producing "cause" of the conflict. Indeed, in these class struggles cum land use or ownership struggles, the intertwining of the political, economical, social, and property-holding motivations inevitably proves inextricable, rendering fruitless any analytical effort to isolate one causal factor. As such, attempts to parse these elements invariably prove speculative at best, presenting classic examples of the venerable riddle, "which came first, the chicken or the egg?"

Thus history's lesson is that when the political-social-economic "haves" (hereafter the "elite") are the ones who initiate the land grab (whether by facially lawful processes, by coercion, by duress, or even by force), they do so not solely to entrench or enhance their financial worth, but also to entrench or enhance their political and societal standing, influence, and control. Conversely, when the political-social-economic "have nots" (hereafter, the "underclass") are the ones who initiate the land grab (whether by exercising the vote or engaging in non-violent acts of civil disobedience, or even by fomenting violent risings or revolutions) they do so not solely to improve their economic well being and obtain landed status; they also do so to dislodge the numerically inferior elite from exclusive land ownership and control, social preeminence, and political domination.
Very nicely done.
Posted at 23:31 by Howard Bashman

News and views on the Hamdi case: The Associated Press this evening offers an article that describes as a "test case" the holding of "enemy combatant" so-called second American Taliban Yaser Esam Hamdi in a military brig in Virginia. Meanwhile, in an op-ed published in today's Los Angeles Times, Law Professor Jonathan Turley views it as the beginning of the end for civilization as we know it.
Posted at 23:15 by Howard Bashman

IP lawyers answer the burning question "Does Robert Bork have a future as a patent litigator?": You will find answers to this question, and to other questions relating to the U.S. Supreme Court's recent decision in the Festo case, at this link courtesy of You can access my original coverage of the Festo ruling and its consequences here and here.
Posted at 22:49 by Howard Bashman

Correcting this morning's New York Times correction: When I made mention early this morning of the correction that The New York Times ran today about the University of Michigan Law School race-based admissions preferences case, I was struck by the correction's breezy tone and wordiness. An attorney with the Pacific Legal Foundation has just emailed to suggest a different theory:
I found it curious that the Times characterized the Grutter case as a "desegregation" decision, when the Court was so careful to refer to it as a "diversity" case and to note that race was only one of a number of potential "plus factors" in the consideration of applicants. Is this characterization unique to the Times, or is there a move afoot to recast this case?
Interesting question.

Update: OpinionJournal's Best of the Web Today takes issue with another of group of corrections that the NYTimes published this morning (click here and then scroll down approximately 80% of the page). Those corrections pertained to an article about the HBO series "The Sopranos," which caused BOTWT to observe: "Forget facts -- * * * the guys at the Times can't even get their fiction straight!"
Posted at 17:02 by Howard Bashman

USDOJ's rehearing petition in Pledge of Allegiance case: The petition for rehearing en banc that the U.S. Department of Justice has filed in the U.S. Court of Appeals for the Ninth Circuit in the Pledge of Allegiance case is now available online. You can access it here.
Posted at 16:47 by Howard Bashman

A liberal view on the federal judicial confirmation imbroglio: Tapped offers these thoughts.

Update: John Rosenberg, over on his fine blog Discriminations, begs to differ with Tapped's view.
Posted at 16:41 by Howard Bashman

Graduate student whose thesis was rejected will seek rehearing en banc: The San Francisco Chronicle offers this report. You can access here my prior post on the Ninth Circuit's recent decision in this unusual and interesting dispute.
Posted at 14:23 by Howard Bashman

Yale is to blame for being hacked by Princeton: That's what Daniel Rosenheck argues in this essay posted a short time ago on Slate.
Posted at 14:20 by Howard Bashman

Bonding with the Establishment Clause: A divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit today decided a case that is more interesting than my description is likely to convey. At issue was whether the federal trial court properly enjoined local government entities from issuing tax-exempt revenue bonds for the benefit of David Lipscomb University in Nashville, Tennessee because the issuance such bonds would provide an impermissible benefit to a pervasively sectarian institution, thereby violating the First Amendment's Establishment Clause. By a vote of 2-1, the Sixth Circuit reversed the trial court's injunction that had prohibited issuance of these bonds. Judge Edmund A. Sargus, Jr. of the U.S. District Court for the Southern District of Ohio wrote the majority opinion, in which Senior Sixth Circuit Judge Alan E. Norris joined. Circuit Judge Eric L. Clay dissented, in an opinion that begins:
Because David Lipscomb University ("Lipscomb") is indisputably a "pervasively sectarian" educational institution and because the low-interest loan to Lipscomb through the issuance of the tax-exempt bonds by the Industrial Development Board ("the Board") amounted to a direct economic benefit in violation of the Establishment Clause of the First Amendment of the U.S. Constitution, I would find that the district court did not err in granting Plaintiffs' cross-motion for summary judgment, denying the separate motions for summary judgment filed by the Board and the Metropolitan Government ("Metro") and entering a permanent injunction prohibiting the Board and Metro from issuing additional tax-exempt bonds to Lipscomb or tax-exempt bonds to any pervasively sectarian institution.

As will be conclusively demonstrated below, Lipscomb fits the profile of a pervasively sectarian educational institution by imposing religious restrictions on student admissions and faculty and staff appointments; enforcing obedience to its religious dogma, which is the "supreme purpose" of the University; requiring daily Bible study and attendance at chapel as an integral part of its religious mission; and placing religious limitations on how and what the faculty teach. The low-interest loan of $15 million originated by the Board at Lipscomb's request constituted a direct economic benefit because it enabled Lipscomb to advance its sectarian mission by funding improvements to the University. Given its pervasively sectarian character, the direct economic benefit to Lipscomb results in excessive governmental entanglement with the religious mission of the University in violation of the Establishment Clause.
You can access full text of the Sixth Circuit's decision at this link.
Posted at 14:07 by Howard Bashman

Now available online: The August 2002 installment of my monthly appellate column published in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, is now available online at this link. This month's column is entitled "Your Third Circuit Appeal, From Start To Finish, In Ten Easy Steps." Lawyers will certainly find the piece to be of greater interest than non-lawyers (damning myself with faint praise!), but anyone is of course free to take a look. In fact, a friend who frequently handles appeals on behalf of the government against pro se litigants has told me she'd like to distribute this column to her non-lawyer adversaries in those cases.

One thing that continually interests me is how it is impossible to predict just who will find my appellate columns useful. Several months back I attended an oral argument of an interesting and important case that the full en banc U.S. Court of Appeals for the Third Circuit was hearing. Right after the argument wrapped-up, I grabbed one of the first elevators to the building's lobby. Joining me in the elevator was a young, casually dressed fellow who quite obviously was carrying a photocopy of a prior appellate column of mine that described the then-pending Third Circuit en banc cases. I asked him how my column had come to his attention, and he replied that he was taking a class at a local law school taught by a Third Circuit Judge, and that Judge had distributed this installment of my column to the class as an easy way to inform the students about the pending en banc cases. That's the type of quite indirect feedback I sometimes get. By the way, my next Third Circuit en banc round-up is due to be printed in October.
Posted at 13:25 by Howard Bashman

Hugh Hewitt on blogging: Thanks to InstaPundit for the pointer to this interesting piece. I don't agree with Hugh's statement that "Ultimately, the blogs force a choice upon you: If you join in and have the goods, you are opting out of elected life and any prayer of eventual judicial or other high-level governmental selection because candor is the first requirement of successful blogging," but his other observations are worth considering.
Posted at 12:07 by Howard Bashman

Mixing metaphors: The "dirty bomber" may be a "small fish," The Associated Press reports here.
Posted at 11:59 by Howard Bashman

The federal judicial clerkship hiring cartel is beginning to crumble: Thanks to the "Greedy Clerks" Web site for drawing this to my attention -- Fifth Circuit Judge Jerry E. Smith, one of the federal appellate judiciary's shining stars, is now on record as refusing to follow the ban on hiring judicial law clerks until candidates are in their third-year of law school. Judge Smith's entry on the federal judiciary's law clerk hiring database states: "I accept apps. from 2nd & 3rd year students. Letters of recomm. not required if schools refuse to provide them. I don't abide by any suggested plan to hire only 3rd years but don't object to judges/students who choose to go along." As contributors to the Greedy Clerk's site suggest, this should allow Judge Smith to choose from the cream of the crop of candidates. And, as economists recognize, cheating on a cartel is a recurrent problem and often leads to the cartel's downfall. Of course, it's not accurate to say that Judge Smith is "cheating" on the cartel, as he apparently never agreed to be a part of it.
Posted at 10:13 by Howard Bashman

Making "How Appealing" more PDA-friendly: A longtime reader of this blog who recently began a judicial clerkship at the U.S. Supreme Court emails:
Still enjoying your site very much; it's a great respite from the cert pool. That said, there is no open internet access at the Court, and as my free time has decreased dramatically during the last month or so, I've had to rely upon my PDA to keep up with web sites I enjoy. [stuff omitted] Again, your site is easily one of the best out there, as the acclaim you report confirms. [slightly more stuff omitted] Best wishes for continued success.
First, thanks for those very kind words. Second, to make a long story short, AvantGo allows PDA users to download Web pages. To make "How Appealing" more PDA-friendly, I'm considering adding a second front page that would contain just the most recent two-days' worth of posts. If anyone has any other, even better, suggestions on how to make this blog more accessible to PDA users, please let me know via email.
Posted at 09:53 by Howard Bashman

Bail for Michael Skakel? The Supreme Court of Connecticut on Monday issued a decision that, according to this article, could allow Kennedy relative Michael Skakel to obtain release on bail.
Posted at 09:44 by Howard Bashman

Quran vs. Koran: The Associated Press this morning provides this update (which favors the spelling "Quran") on the University of North Carolina at Chapel Hill Islamic reading assignment controversy. At National Review Online, guest commentator James Bowman has these thoughts about the controversy (and he prefers the spelling "Koran").
Posted at 09:32 by Howard Bashman

Today's LATimes terrorism and the law round-up: Click here -- plus, the article mentions at its close who's been elected to serve as the American Bar Association's president in 2004.
Posted at 09:24 by Howard Bashman

Taking a serious look at the "big fat" class action lawsuit: Law Professor Anthony J. Sebok, on FindLaw, offers these thoughts in the first of a two-part series.
Posted at 09:20 by Howard Bashman

Oops, a correction: Wednesday's edition of The New York Times contains the following correction:
An article on Monday about a federal lawsuit seeking to overturn a school desegregation plan in Lynn, Mass., misidentified the court that approved a plan in May for racial diversity at the University of Michigan law school. In one of the few recent desegregation rulings by federal courts, it was the United States Court of Appeals for the Sixth Circuit, in Cincinnati -- not the Supreme Court -- that ruled that race could be a factor in admissions to college and graduate schools.
Of course, if you regularly read this blog, you'd be well-aware of the current status of the referenced suit from Michigan.
Posted at 00:46 by Howard Bashman

Tuesday, August 13, 2002
Some hints for the first year law student: Alice W. is back at her keyboard, and I couldn't have said it better myself.
Posted at 23:32 by Howard Bashman

Federal judge presiding over the second American Taliban case still isn't happy about the government's evidentiary showing: The AP offers this report, which says that the trial court judge could order (or refuse to order) the release of Yaser Esam Hamdi sometime within the next several days.

Update: In Wednesday's newspapers, The Washington Post has this report, and The New York Times has this report. Both publications describe in detail why the trial judge is not pleased with the government's presentation.
Posted at 23:22 by Howard Bashman

Update on my op-ed piece that likely will be published somewhere pretty cool: I've all but completed work on my op-ed piece and will be submitting it for review tomorrow morning. I am pleased with how it turned out, and it very well may serve to trigger debate on a variety of interesting and controversial subjects. That's all I can add now to my prior posting on this subject, but do stay tuned for more details soon.
Posted at 23:12 by Howard Bashman

Wrap-up of ABA annual meeting's final day: Tonight's Barwatch Bulletin email from The Federalist Society provides, among other things, the following details:
The ABA's 2002 Annual Meeting wrapped up today (without any further ABA Watch volunteers being evicted from the Marriott Wardman). What follows is a round-up of action taken by the House of Delegates.

--We previously reported on a resolution offered by former White House Counsel C. Boyden Gray, which: (1) called upon the President of the United States to promptly nominate candidates to fill vacant federal judicial positions; (2) urged the Senate Judiciary Committee, absent extraordinary circumstances, to clear nominees for a vote within six months of the receipt of the nomination; and (3) called upon the Senate to promptly advise and consent to or reject nominees. Mr. Gray withdrew his resolution and supported Revised Recommendation 10A, which also addresses the vacancies crisis. Revised Recommendation 10A does not set any time frame for Senate action, but it does call for prompt action by the Senate Judiciary Committee for action on nominees, as well as prompt action by the Senate to advise and consent to or to reject nominees. Recommendation 10A was approved by the House of Delegates.

Although the ABA has passed prior resolutions concerning judicial confirmations (by the House of Delegates in 1990 and 1998 and by the Board of Governors in 1997), this is the only time the Senate Judiciary Committee has been singled out by the Association as responsible for the pace of the confirmations process. The report states, "The present resolution focuses with greater emphasis on the role of the Senate Committee on the Judiciary as a cause of blockage in the confirmations process: The notion that that Committee, by the simply expedient of refusing to hold timely hearings may avoid confirmation proceedings in the full Senate, is simply unacceptable to our notion of an appropriate and constitutional nomination process." (The full report is available at

Judah Best, the chairman of the Litigation Section, described 10A as a "wonderful resolution" that would encourage expediting the "languid pace" of Senate confirmations. He cited John Roberts, who has been nominated by both President George H.W. Bush and George W. Bush for the D.C. Circuit Court of Appeals, as an example of a nominee who is adversely affected by the delays-- private practitioners will have no incentive to be nominated in the future if their professional lives and obligations to clients remain in limbo for extended periods of time. He urged the ABA to not simply vote "yes, but a roaring yes" to this resolution.
Relatedly, correspondent Jonathan Groner of offers this report tonight.
Posted at 23:04 by Howard Bashman

The AP has another story on the Florida adoption law that sometimes requires the mother to publish her sexual history: The Atlanta Journal-Constitution once had (and for all I know may still use) the motto "We cover Dixie like the dew." Well, The Associated Press probably deserves some kind of motto for its tenacious coverage of the Florida adoption law that sometimes requires the mother to publish her sexual history. Today the AP offers two items on this story, here and here. How can I poke fun at the AP's coverage of a story fraught with overtones of sexual promiscuity when this blog has faithfully pointed to all reports on the case? Hmm . . . the case is on appeal, after all, making it fair game for this blog to cover.
Posted at 22:51 by Howard Bashman

A talented panel of U.S. Supreme Court veteran advocates speaks about the Court: You can access the discussion about the U.S. Supreme Court and its 2001 Term at this link. Tony Mauro served as the discussion's moderator.
Posted at 22:36 by Howard Bashman

Some appellate judges just seem to get all the good cases: First Barbie, now Circuit Judge Alex Kozinski is one lucky (not to mention extraordinarily talented) individual. Jason Hoppin, via California's version of (which, of course, is not usually confused with, has this report on today's Ninth Circuit oral argument in the appeal.
Posted at 22:31 by Howard Bashman

Tenth Circuit mistakes itself for the U.S. Supreme Court: The first substantive footnote of an opinion written by Senior Circuit Judge Monroe G. McKay that the U.S. Court of Appeals for the Tenth Circuit issued today states:
Issues 1-3 and 5 are joined by Judges Ebel and Sam. Issue 4 is joined by Judge Sam. Judge Ebel, joined by Judge Sam, delivers the opinion of the court on Issue 6. Judge McKay has filed a separate dissent on Issue 6. Judge Ebel has filed a separate dissent on Issue 4.
For a moment there I thought I was suffering a flashback to the end of any recent U.S. Supreme Court Term.
Posted at 22:20 by Howard Bashman

Sixth Circuit affirms dismissal of suit against entertainment industry stemming from Paducah high school shootings: The opinion of Circuit Judge Danny J. Boggs, on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, begins:
On December 1, 1997, Michael Carneal walked into the lobby of Heath High School in Paducah, Kentucky, and shot several of his fellow students, killing three and wounding many others. The parents and estate administrators of Carneal's victims -- Jessica James, Kayce Steger, and Nicole Hadley -- (hereinafter collectively referred to as "James") appeal the judgment of the district court dismissing, for failing to state claims on which relief could be granted, their actions against several video game, movie production, and internet content-provider firms. According to James's complaint, Carneal regularly played video games, watched movies, and viewed internet sites produced by the defendant firms. These activities, James argues, "desensitized" Carneal to violence and "caused" him to kill the students of Heath High School. James claims that the distribution of this material to impressionable youth like Carneal constitutes actionable negligence under Kentucky law, entitling James to recover wrongful death damages from the distributing firms. Moreover, James contends that the defendant firms purveyed defective "products," namely the content of video games, movies, and internet sites, triggering strict product liability under Kentucky law.

The defendant firms argue that they owe no duty to protect third parties from how players, watchers or viewers process the ideas and images presented in their video games, movies, and internet sites. Specifically, the defendants contend that Carneal's actions were not sufficiently foreseeable to trigger the defendants' liability. Even if they were to owe such a duty to protect third parties from the consumers of their ideas and images, the defendants argue that Carneal's independent decision to kill his fellow students constitutes a superseding cause of the claimed damages and defeats the proximate cause element of James's prima facie case. The defendants further contend that tort liability for the non-defamatory ideas and images communicated in their respective media would raise significant First Amendment questions that ought to be avoided. Finally, the defendants note that James's theory of product liability is flawed as they have not distributed "products" under Kentucky law.

For the reasons set forth below, we affirm the district court's dismissal of James's actions.
You can access the Court's entire opinion here.
Posted at 16:36 by Howard Bashman

Ann Coulter may have more fans than C-SPAN has viewers: If so, let me announce that the full transcript of her Booknotes interview with C-SPAN CEO Brian Lamb, which aired this past weekend, is now online at this link. You can access a video feed of the program there too.
Posted at 16:07 by Howard Bashman

The ABA condemns secret custody of INS detainees in terror probe: The Associated Press offers this report, which explains that Solicitor General Theodore B. Olson observed, but did not participate in, the debate. The American Bar Association's annual meeting, held this year in Washington, D.C., wraps up today.
Posted at 15:58 by Howard Bashman

Drats, I'm Cornered! Jonathan Adler, who kindly emails to say that he's a big fan of this blog, has an interesting and dare I say modest proposal to solve the most serious aspects of the federal judicial vacancy crisis. His suggestion is posted at National Review Online's The Corner, one of the finest group blogs in operation today.

Update: Now Jonathan's gone and turned this into a mutual love-fest.
Posted at 13:08 by Howard Bashman

Don't mess with Texas -- federal jury service version: According to The Associated Press, this summoned Texas resident's efforts to avoid federal jury service weren't appreciated.
Posted at 12:44 by Howard Bashman

Overseas, a growing hunger for appellate news: A recent posting here discussed readers from overseas who had visited this blog on a given night. Since then, the blog has had visitors from nations that use the following Internet suffixes: .cc; .cn; .gr; .il; .my and .ru. Welcome! In case the text of this blog ever needs to be introduced into evidence in federal court in Puerto Rico, the principal language of "How Appealing" shall continue to be English.
Posted at 09:29 by Howard Bashman

What position will the Bush Administration take on the Univ. of Mich. Law School racial preference in admissions case? On National Review Online, Shikha Dalmia, an editorial writer at The Detroit News, offers these thoughts. You can access my most recent discussion of this case (with a link to the Sixth Circuit's ruling) here.
Posted at 09:14 by Howard Bashman

An update on the battle over school choice: Today's edition of The Christian Science Monitor contains this report.
Posted at 09:07 by Howard Bashman

Why mention another sarcastic law student blogger? Maybe because she's damn clever, and her site is quite visually attractive too.
Posted at 00:53 by Howard Bashman

In Tuesday's newspapers: The Wall Street Journal contains an editorial that castigates the ACLU for its stand on the University of North Carolina at Chapel Hill's Islamic reading assignment donnybrook. The Washington Post contains a report that Maryland's Republican leaders are calling for an ethics inquiry into the conduct of the Chief Judge of the Maryland Court of Appeals, that State's highest court. Finally, The New York Times reports here that New Jersey's intermediate appellate court has upheld against challenge a drug testing program for high school students similar to the one that the U.S. Supreme Court approved in June 2002. Those willing to step back in time can read my original coverage of that U.S. Supreme Court ruling at this link.
Posted at 00:14 by Howard Bashman

Monday, August 12, 2002
The debate rages on over how best to select judges: What method of selecting judges is the best -- the federal model whereby the executive nominates a candidate and a legislative body must vote to confirm?; the model that many states follow in which candidates for judicial office are selected by voters at the polls, either in partisan or non-partisan contests?; or the method whereby a "non-partisan" panel of "experts" proposes a list of candidates from which the executive chooses one who then becomes a judge? All three systems have obvious drawbacks. The federal model suffers from the capacity for legislative gridlock (and even the executive can merit blame if nominations are not forthcoming). The popular election model may cause the public to feel that the judges are indebted to contributors and special interests, and an election may not result in a victory by the most qualified judicial candidate. Even the system whereby the executive chooses from a list of nominees proposed by a supposedly non-partisan commission has its drawbacks -- hey, wasn't that the method that led to the selection of the Florida Supreme Court that worked so diligently to install President Gore and Vice President Lieberman?

In short, all three methods have their drawbacks. Instead of trying to switch from one method to another -- which is next to impossible (see, for example, this article, which reports that seventy-five percent of the people surveyed expressed more confidence in judges publicly elected than in judges who are appointed) -- people of good faith should try to improve the existing methods. One way to improve the federal method is to restore federal judges to the traditional role of judging rather than forcing them to be arbiters of the most difficult social/legislative issues of the day. Todd Gaziano of The Heritage Foundation explained this point very well in his essay published last Friday on And, in my appellate column published September 10, 2001 in The Legal Intelligencer, I discussed ways to improve the process of electing state court judges.
Posted at 22:23 by Howard Bashman

Highest courts of Texas split over "do not publish" designation: offers this report. You can access here my most recent column on the controversial issue of non-precedential appellate opinions, published in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, on January 14, 2002.
Posted at 22:17 by Howard Bashman

Two topics under discussion in the blogosphere today: Pseudonymous blogging (see here) and weekend blogging (see here and here). On these two subjects the author of "How Appealing" votes no and yes, respectively. And, although I don't practice pseudonymous blogging, I did write a blog entry just the other day that mentioned pseudo-feces. So, this blog cannot accurately be characterized as an entirely pseudo-free zone.
Posted at 22:00 by Howard Bashman

The federal government opposes any delay of the Moussaoui trial: You can access the government's response brief here.
Posted at 21:48 by Howard Bashman

Ninth Circuit decides graduate thesis dispute that spawned First Amendment claim: Given the large number of readers who access this blog from .edu Internet suffixes, I hereby note that a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today released a decision in a case where the lead opinion begins:
In this appeal, we consider the extent to which the First Amendment and due process guarantees are implicated when a graduate student's thesis committee declines to approve a thesis that meets academic and professional standards in all respects except one: The acknowledgments section does not conform to established academic and professional standards. We conclude that the Amendment does not require university professors to assign a passing grade to such a thesis. We further hold that the university's review procedures satisfied due process. Accordingly, we affirm the district courtís grant of summary judgment in favor of Defendants, who are university professors and officials. However, we remand the case for the district court to address a state constitutional claim that it did not resolve.
You can access the Ninth Circuit's ruling here. Circuit Judge Stephen Reinhardt was on the panel and wrote a nineteen-page dissent from the panel's resolution of the First Amendment issue.
Posted at 14:13 by Howard Bashman

Ninth Circuit reverses dismissal of suit challenging Arizona prison ban on same-sex snuggling in the visiting room: A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today reversed a trial court's dismissal of a lawsuit challenging as unconstitutional a policy of the Arizona Department of Corrections that prohibits same-sex kissing and hugging during prison visits unless the visitor in question is a member of the inmate's family. You can access the Ninth Circuit's opinion here.

I watched a videotape of the oral argument in this case aired by C-SPAN and, I must admit, am not surprised with the result. The prison maintained that its policy protected inmates from being labeled as homosexuals and from being targeted for abuse. The plaintiff, however, countered that prisoners who wish to hide their sexual orientation will not openly display same-sex affection during visits, and thus the policy only punishes those prisoners who are already open about their sexual orientation. The Ninth Circuit's ruling does not mean that the policy necessarily will be invalidated, but it does mean that the prison's victory in getting the suit dismissed at a very early stage of the litigation has been reversed.
Posted at 13:58 by Howard Bashman

Opening terrorism-related alien-removal hearings is a big mistake, Victoria Toensing argues: Today on National Review Online, Victoria Toensing (credited as a former Justice Department official who created the terrorism section) argues that a New Jersey-based federal district judge made a serious error when he held that the deportation hearings of individuals detained in the government's terrorism probe should be open to the public. (You can access here my prior coverage of this dispute, which is now pending on appeal before the U.S. Court of Appeals for the Third Circuit.)
Posted at 13:46 by Howard Bashman

In Monday's newspapers: The Washington Post contains an editorial critical of Justice Antonin Scalia for the thoughts expressed in his article from May 2002 addressing religion and the death penalty. Monday's Post also includes a column by Jonathan Yardley about the dispute over the University of North Carolina at Chapel Hill's request that incoming students read a book on Islam. Finally, OpinionJournal, a site run by The Wall Street Journal, offers an op-ed suggesting that the Posse Comitatus Act should be amended to allow more military involvement in the domestic fight against terrorism.
Posted at 00:25 by Howard Bashman

Sunday, August 11, 2002
Jeffrey Rosen reviews the two failed U.S. Supreme Court television dramas: Dare I credit Jeffrey Rosen with two must reads in two days? Well, visitors to "How Appealing" interested in the U.S. Supreme Court past and present really shouldn't miss this essay posted last Tuesday on The New Republic's Web site. In his lengthy but quite interesting essay, Rosen not only reviews the two failed major network Supreme Court dramas, but he also reviews two books. The first book contends that the line between popular culture and the law is vanishing (hmm, was that book's author anticipating the Ninth Circuit's ruling in the Barbie doll case?), while the second book is the memoir of John Knox, who served from 1936 to 1937 as law clerk for U.S. Supreme Court Justice James Clark McReynolds. (I originally mentioned the Knox memoir in a post here on June 9, 2002).
Posted at 22:10 by Howard Bashman

Now we can see why he wasn't amused: Earlier this month, I mentioned here that former D.C. Circuit Judge and U.S. Supreme Court nominee Robert H. Bork had expressed his disappointment that American Spectator magazine used a cover illustration in which "[s]ix of the nine Justices of the Supreme Court are depicted as clowns of one sort or another, and a dog in a dunce cap is placed in the middle, for no intelligible reason" to promote an interview with Bork contained in the magazine. The illustration in question can now be viewed online here at the American Spectator's Web site (although the interview with Bork is not available online yet), and it is objectionable indeed.
Posted at 21:55 by Howard Bashman

Evidence of a vast left-wing conspiracy? Attorney-blogger Sam Heldman reports that he has found evidence of "a left-wing conspiracy, among major corporate media interests, to suppress right-of-center voices."
Posted at 21:48 by Howard Bashman

Newsweek says the case against alleged dirty bomber Jose Padilla may be quite weak: The edition of Newsweek magazine that hits newsstands tomorrow contains an article reporting that the case against Jose Padilla, alleged to have been al Qaeda's so-called dirty bomber, is very weak. Padilla is one of two Americans currently being held, uncharged and essentially incommunicado, as enemy combatants by the U.S. military. Just nine days ago, Slate Senior Editor Dahlia Lithwick argued in an op-ed published in The New York Times that the federal government may have brought more serious charges against alleged twentieth hijacker Zacarias Moussaoui than the evidence will support. An editorial in today's Washington Post criticizes a plan by the U.S. Department of Justice to designate as enemy combatants those against whom the government's evidence is too weak to prevail in the nation's regular criminal justice system. (The Post says its editorial is based on a report that ran last week in The Wall Street Journal.) For these reasons, the government's military detention of Padilla, an American citizen arrested in Chicago for plotting to harm our nation, is of much greater significance than the military detention of Yaser Esam Hamdi, who was taken into American custody after fighting on the side of Taliban forces in Afghanistan.
Posted at 12:05 by Howard Bashman

Rating the best of Philadelphia's cheesesteaks: The wonderful city where I work and in which I was born and raised is well-known today for its fine dining. But Philadelphia has been justly famous for many years for the wonder that is the Philly cheesesteak. Today's edition of The Philadelphia Inquirer Magazine contains a cover story, written by the newspaper's restaurant critic, describing a quest that he and four suburban high school students set out on to find the best cheesesteak in the region. You can access the cover story here and the ratings here. For the listed cheesesteak establishments at which I have eaten during the past several years (Tony Luke's, Geno's, The White House Sub Shop, and Pat's King of Steaks), the ratings are right-on. Now if only there were some way to eat cheesesteaks frequently without qualifying to be the plaintiff in an obesity lawsuit.
Posted at 11:43 by Howard Bashman

Pledge of Allegiance dad defends his right to bring that suit: is reporting this morning that the father of the little girl on whose behalf the Pledge of Allegiance lawsuit was filed contends that he has the ability to maintain that challenge even though the girl's mother has full custody and neither the mother nor the girl objects to the girl's saying of the Pledge. You can access here the Ninth Circuit's three-judge panel ruling in that case. As this blog has previously noted, both the U.S. Department of Justice and the State of California are seeking rehearing en banc in the Ninth Circuit (you can access California's petition here), and the girl's mother has recently filed a petition to intervene asking the appellate court to reverse its ruling or at least remove the girl from further involvement in the case.
Posted at 08:43 by Howard Bashman

In Sunday's newspapers: In The New York Times, one week after describing the worst that prison cuisine has to offer, today's newspaper explains that prison camp for the white-collar offender might not be so wonderful either. Today's Times also contains an article about a lawsuit brought by a Muslim woman against the State of Florida because it, in the aftermath of September 11th, refused to allow her to be photographed for her driver's license wearing a veil that reveals only her eyes.

Sunday's edition of The Washington Post contains a bunch of interesting items. The Post contains editorials: (1) criticizing the U.S. Department of Justice's expected increased reliance on military tribunals in terrorism cases; and (2) arguing for the reversal of an Iowa trial court's ruling that ordered hospitals to turn over to the authorities the names of women who had tested pregnant in the past nine months to assist in determining the identity of a dead newborn found abandoned in the trash. The Post also contains this item (which is under the heading of "letters to the editor" but reads like an editorial) criticizing the particular manner in which judicial elections are conducted in Maryland. Sunday's Post also contains an op-ed entitled "A Jury of Your Peers? Only If You're Clueless"; an op-ed that reviews various States' laws on write-in candidacies; and an op-ed that addresses the subject of junk science both in and out of the courtroom.
Posted at 00:44 by Howard Bashman

Saturday, August 10, 2002
Justice Ginsburg today honored the first female ever to serve as a federal district judge: The Associated Press, in its recap this evening of the noteworthy happenings today at the American Bar Association's annual meeting, mentions that U.S. Supreme Court Justice Ruth Bader Ginsburg spoke in honor of Burnita Shelton Matthews, the first woman ever to serve as a United States District Judge.

The Internet offers a wealth of material about Judge Matthews. You can access at this link her official Federal Judicial Center biography (the link was down at the time of this posting, but it should be working again sometime soon). Stanford University has a Web page about Judge Matthews that links to seven other resources, including this law review article that Justice Ginsburg co-authored, this biographical profile of Judge Matthews, and this essay focusing on Judge Matthews's lengthy service on the bench. You can access at this link an image of the obituary of Judge Matthews that the The New York Times published. You can access the text of an interview with Judge Matthews that is part of an oral history project at this link. Finally, this Clinton White House press release thought it worth noting that Judge Matthews first joined the federal bench as a recess appointee.
Posted at 22:17 by Howard Bashman

Today's news from the ABA's annual meeting in Washington. D.C.: According to The Federalist Society's Barwatch Bulletin for August 10, 2002 (which arrived this afternoon via email), today at the American Bar Association's annual meeting another Federalist Society member was evicted from the meeting's premises for trying to hand out the Society's August 2002 ABA Watch publication. Also, the meeting hosted a very interesting panel that discussed the role that ideology should play in the judicial confirmation process. Today's Barwatch Bulletin provides the following additional details:
Day 3 of the ABA Annual meetings brought a second eviction of an ABA Watch volunteer from the Marriott Wardman Hotel. Dave Smith was asked to leave the premises around 8 a.m. while distributing copies of ABA Watch. We'll continue to bring you updates Monday morning, as volunteers will once again attempt to distribute copies of the Watch at the meeting's main hotel.

In other news...

A Saturday panel considered the question: "What role should ideology play in the selection of federal judges?" UCLA law professor Erwin Chemerinsky stated that Republican efforts to argue that ideology should not be a factor were both "disingenuous and wrong." He argued ideology has been a factor throughout history, since George Washington's presidency. It is desirable to take ideology into account because ideology influences how a judge votes on the bench and because the president takes ideology into account when making his nomination. Chemerinsky related a story on how he was considered for the federal bench, but was not nominated because of his opposition to California Proposition 209 on racial preferences. On a similar basis, it is appropriate for Democrats to say ideological judges such as Carolyn Kuhl, Priscilla Owen, and Charles Pickering do not belong on the federal bench. Yale law Professor Judith Resnick made the argument that the current talk about the vacancy crisis is disingenuous, because several years ago some thought we had too many federal judges. She made the argument that there is no judicial vacancy crisis, and we should slow down the confirmations process. She believes ideology is only an issue because important values are often not shared by all.

Berkeley Law Professor Jesse Choper believes ideology could be considered a factor when it comes to Supreme Court appointments because the Supreme Court makes the law for the entire country by its rulings in such matters as the death penalty, abortion, and race. He does not believe ideology is as important on the circuit court level, as the decisions are not final and only a small number of cases that come to this court can be considered ideological.

Boyden Gray commented on his resolution before the House of Delegates, discussed in yesterday's Barwatch, that calls for a six-month deadline for judges to be considered and voted upon by the Senate. Senator Charles Schumer staffer Jeff Berman does not believe this resolution would be very effectual to the Senate Democrats. The Senate Democrats, he argues, would prefer not to consider ideology as part of the confirmations process, but the White House is making it a factor. Nominees "in the mold of Scalia and Thomas [are] who we have concern about [as] being conservative activists." Brett Kavanaugh, associate white house counsel, countered Berman's arguments, pointing to an "unprecedented slowdown of the judicial confirmations process." The Senate has not returned President Bush's good faith in confirming judges. Certain Democrats, Kavanaugh stated, have made a commitment to block Bush's nominees. Berman interrupted Kavanaugh's remarks (with the moderator not stopping the interruption), claiming that moderates have been confirmed and nominees such as Miguel Estrada have been promised timely hearings. Kavanaugh refuted this last assertion.

The two judges on the panel "just happened to be" Clinton Administration appointees (the moderator's observation, not ours). 9th Circuit Court of Appeals Judge Margaret McKeown believes transparency, timelines, and temperance are the keys to the ideology debate. District Judge Andre Davis believes the Senate should consider ideology and has the prerogative to not believe a nominee's answers if the Senate feels that he or she lacks credibility.

Also on the subject of nominations, Carol Dinkins, who served under President Bush when he was governor of Texas, is the new chair of the ABA's Standing Committee on the Federal Judiciary. The ABA also announced at its convention that the Committee had given more top ratings to Bush nominees than it had to Clinton or Bush I nominees. ABA President Robert Hirshon was quoted as saying, "We don't look at the political background, the ideology. Guess what. Nobody on the extreme right believes us." Last summer, ABA Watch published a survey, updated in the new issue of ABA Watch, proving Bush I nominees received lower ratings from the Committee than comparable Clinton nominees.
The ABA's annual meeting runs through Tuesday, August 13, 2002, so "How Appealing" will provide additional updates if developments warrant.
Posted at 20:44 by Howard Bashman

Committee for Economic Development issues lengthy report opposing judicial elections: The Committee for Economic Development, a group about which I know next to nothing, has issued a lengthy report opposing the election of judges. The report, issued yesterday, will be the subject of tonight's episode of "America and the Courts" scheduled to air at 7 p.m. eastern time on C-SPAN.
Posted at 13:28 by Howard Bashman

Break on through to the other side: Thanks to the coaxing of someone in the mainstream media who has become quite a fan of "How Appealing" (which, of course, is very pleasing in its own right), I am in the midst of preparing a 1200-word not particularly time-sensitive op-ed that might just permit me to experience crossing-over from the blogosphere to the big time. So, wish me luck, and I'll have more details about this within the next several weeks if anything actually comes of it.

In related news, I've been toying with the possibility of writing a biweekly (that's once every other week, for those of you challenged by "bi") 1000- to 1200-word column based on the items discussed here either for a nationwide news outlet or for a nationwide legal news outlet. Joanne Jacobs, who runs a top-notch Web log devoted to educational developments, does exactly this for her column published on the FoxNEWS Web site. So, if you are affiliated with a news outlet that might be interested in this proposal (in other words, if you would like to contact me before I perhaps get around to contacting you), send me an email at appellateblog -at-
Posted at 12:46 by Howard Bashman

A must read: Tomorrow's edition of The New York Times Magazine contains an especially thoughtful and balanced essay by Jeffrey Rosen entitled "Obstruction of Judges: Why has it become next to impossible for a president -- Democrat or Republican -- to get a nominee to a federal appeals court approved by the Senate?" In researching the essay, Rosen interviewed former U.S. Court of Appeals for the D.C. Circuit nominee Allen Snyder and two-time D.C. Circuit nominee John Roberts.

Update: Challenged via email by a reader who correctly points out one instance where Rosen's essay is not balanced (and I could cite others myself), let me clarify that I don't endorse every single aspect of his essay. Rather, the essay strikes me as especially thoughtful and balanced compared to what one usually sees written about this politically divisive topic. And that's what makes Rosen's essay worth reading wherever you find yourself on the political spectrum.
Posted at 12:34 by Howard Bashman

In Saturday's newspapers: The New York Times contains this article reporting on the decision of the U.S. Court of Appeals for the Second Circuit that yesterday overturned a trial court's ruling that had opened Connecticut's primary ballot to any registered voter affiliated with a political party. The Washington Post carries a wire service report stating that the federal government has appealed "a judge's order that the Justice Department must reveal the names of all those held in the investigation of the Sept. 11 terrorist attacks." The article says the government is arguing that the trial court's order aids the enemy. The Post also runs this front page article on an investigation into whether certain Maryland state legislators violated ethics rules when they had contact with the judges who serve on that State's highest court, the Court of Appeals of Maryland, in connection with a redistricting dispute then pending before that court.
Posted at 08:29 by Howard Bashman

Francis Lorson, longtime U.S. Supreme Court chief deputy clerk, is to retire: Tony Mauro of has this report. Frank Lorson is one of the nicest and most knowledgeable individuals ever to work in a court's clerk's office anywhere. "How Appealing" wishes him all the best in his retirement.
Posted at 08:26 by Howard Bashman

Friday, August 09, 2002
Today's creative thinking award goes to Akhil Reed Amar. Not only did he co-author an op-ed published in today's Washington Post calling for term limits for U.S. Supreme Court Justices (a proposal I described earlier today as bizarre), but he has also co-authored with his brother, Vikram David Amar, an essay on FindLaw suggesting a "compromise" result that the U.S. Supreme Court could have reached in the judicial elections-First Amendment case. In essence, the Amar brothers suggest that States should hold non-binding electoral beauty contests with a government agency or state senate committee to make the final selection based on the candidates' judiciousness during the election campaign. Thankfully there is no need to decide which of Akhil Reed Amar's two quite farfetched proposals is less likely to be adopted -- that would be a very difficult question to answer.
Posted at 22:44 by Howard Bashman

Some news from the ABA's annual meeting in Washington, D.C.: The American Bar Association is in the midst of holding its annual meeting, which is taking place this year in Washington, D.C. Reporter Jonathan Groner of The Legal Times reports here that "[p]olitical infighting over the selection of federal judges has spilled into the deliberations of the American Bar Association."

In other news, the ABA's Task Force on Treatment of Enemy Combatants issued its preliminary report, which you can access here. If I may grossly oversimplify -- and I may, as it's my blog -- the report says that even though these enemy combatants may be trying to kill us, we should nevertheless be a bit more protective of their rights.

On each day of the ABA's meeting, The Federalist Society sends an email to subscribers summarizing the day's events. Additionally, twice each year The Federalist Society issues a publication entitled ABA Watch, the most recent installment of which became available online today. Today's Federalist Society email, which isn't yet available on the Society's Web page, describes an occurrence that leads me to believe that the ABA is not especially fond of the ABA Watch publication:

As the ABA Convention kicks into high gear, it will be exploring some important and interesting topics of the day. One notable panel will include a discussion on how the views of Americans have changed regarding civil liberties titled, "Will September 11 Change the Constitution?" The description of the panel asks several important questions including, "Are we willing to forego the right of free speech and unfettered press in order to thwart terrorism? Who decides what speech is allowable or suppressible?"

As an organization that has long supported the free and open dissemination of ideas, the American Bar Association created its own "ABA Dialogue" Web site in order to "promote a series of dialogues celebrating our Constitution and encouraging debate on important issues facing our nation . . . ." [T]he ABA [also] has established goals to create open dialogue. As expressed on [its] Division for Public Education Web site, two of the ABA's goals are "To stimulate public awareness of, and dialog about, law and its role in society" as well as "To include diverse peoples, organizations, and perspectives in the planning and implementation of programs and in the audiences our programs serve." Do these goals also apply at the ABA Annual Meeting?

Juli Walker isn't so sure how to answer that question. She learned quickly at the Marriott Wardman in Washington, D.C., the ABA Annual Meeting host hotel, that the ABA was less than enthusiastic about diverse perspectives and was apparently willing to decide "what speech is allowable or suppressible."

As Ms. Walker was peacefully distributing copies of ABA Watch, which features one of the first interviews with incoming ABA President A.P. Carlton, around the public areas of the Marriott Wardman she was stopped by Loss Prevention staff of the hotel and asked if she was distributing pamphlets. She truthfully replied "yes" and then was told that the loss prevention supervisor would like to speak to her. As she was whisked away to the loss prevention office, Juli asked if she had done something wrong and it was explained to her that she was distributing material at the hotel that was not authorized by the ABA and thus was not allowed in the hotel. When asked if this is normal hotel policy, the staffer explained that ABA staff had directed them to stop the distribution of "your materials," as she pointed to the ABA Watch issues Ms. Walker was carrying.

In the Loss Prevention office, the supervisor explained that the ABA had asked the hotel staff to make sure this material, as he picked up a copy of ABA Watch, was not distributed anywhere in the hotel. The supervisor then warned Ms. Walker that she was "barred from the hotel," and if she returned she would be "arrested for trespassing." Juli was then escorted out of the hotel and watched as she walked away, to ensure that she left the hotel grounds.

ABA Watch asked Juli what she thought of all this. She replied, "So let me get this straight: the ABA wants open hearings for suspected terrorists but not openness at its convention? Am I missing something here?"
And that concludes tonight's news from the ABA's annual meeting.
Posted at 21:56 by Howard Bashman

Thurgood Marshall postage stamp unveiled: Today the U.S. Postal Service unveiled the postage stamp honoring U.S. Supreme Court Associate Justice Thurgood Marshall. You can see the stamp at this link. The 37-cent stamp is scheduled to go on sale in January 2003.
Posted at 21:43 by Howard Bashman

Sorry everybody, you're off the ballot in Connecticut: The Associated Press, via, is reporting that the U.S. Court of Appeals for the Second Circuit today overturned a Connecticut federal district judge's ruling that had opened up next month's primary elections in that State to virtually any registered voter who wished to run for office.
Posted at 21:36 by Howard Bashman

UMich Law School racial preference in admissions case reaches U.S. Supreme Court: Barbara Grutter today filed a petition for writ of certiorari in the Supreme Court of the United States in her case challenging the racial preference in admissions policy of the University of Michigan Law School. The AP has this report. There is a very strong likelihood that the U.S. Supreme Court will grant review and decide this case on its merits. When the en banc U.S. Court of Appeals for the Sixth Circuit on May 14, 2002 denied Grutter's challenge by a vote of 5-4 in a decision that contained quite a bit of fireworks, I had this to say. And, the following morning I had these additional comments.
Posted at 20:55 by Howard Bashman

USDOJ seeks rehearing en banc in Pledge of Allegiance case: The Associated Press is reporting that the U.S. Department of Justice has today filed its own petition seeking rehearing en banc of the U.S. Court of Appeals for the Ninth Circuit's ruling in the Pledge of Allegiance case.
Posted at 20:25 by Howard Bashman

UNC Islamic book controversy takes an unexpected turn: The Associated Press is today reporting on a development in the continuing battle over a requirement that incoming University of North Carolina at Chapel Hill students read a book about Islam. According to this report, North Carolina's legislature is considering a ban on the use of public funds for the university's reading assignment on the Quran unless other religions get equal time. The requirement is also currently the subject of a lawsuit (click here and here for more details about the suit). Update: Slate's William Saletan later today had this to say about the controversy.
Posted at 16:55 by Howard Bashman

Lexi's sniff and touch of defendant's groin area wasn't a Fourth Amendment violation, the Fifth Circuit rules: When James Patrick Kelly walked across a bridge from Mexico into Laredo, Texas, a trained narcotics canine named Lexi "began walking alongside him. Lexi then touched her snout to Kelly's groin area and alerted." Today the U.S. Court of Appeals for the Fifth Circuit ruled that the canine's sniffing and touching of defendant's groin area did not violate the Fourth Amendment. You can access the court's opinion here.
Posted at 14:36 by Howard Bashman

USDOJ files amicus brief in support of Ohio law banning late-term abortions: The Village Voice reports that the U.S. Department of Justice has filed an amicus brief in the U.S. Court of Appeals for the Sixth Circuit urging that court to uphold an Ohio law banning a form of late-term abortion. You can access the exclusive article here. If the Voice's report is correct, I would expect to see the mainstream news media all over this story in just a few minutes from now.

Update: I've conducted a slight bit of Internet research, and despite the Village Voice's claim of an "exclusive," it seems that this is all actually old news (or, if it didn't make news then, at least it happened a while back). You can access the DOJ's brief, filed in the Sixth Circuit in February 2002, here. A FindLaw columnist also discussed the DOJ's brief in this column published February 14, 2002.
Posted at 10:09 by Howard Bashman

Both sides appeal net radio ruling: IDG News Service offers this report. The requests for appellate review were filed with the U.S. Court of Appeals for the D.C. Circuit.
Posted at 09:59 by Howard Bashman

Update on Florida appeal challenging law that requires certain women who put babies up for adoption to publish sexual history: The Sun-Sentinal of Fort Lauderdale, Florida has this report.
Posted at 09:55 by Howard Bashman

Why this blog is available online 24/7 (Blog*Spot willing): Between midnight and 6 a.m. this morning, "How Appealing" had visitors from countries that use the following Internet suffixes: .au; .fi; .hk; .sk; .tw; and .uk. Time to check the helpful Internet suffix list. Still no recorded visitors from the Axis of Evil, .kp; .iq, or .ir. And, speaking of the Axis of Evil, be sure to check out this article from, dateline Beijing, entitled "Angered by Snubbing, Libya, China, Syria Form Axis of Just as Evil; Cuba, Sudan, Serbia Form Axis of Somewhat Evil; Other Nations Start Own Clubs."
Posted at 09:39 by Howard Bashman

In Friday's newspapers: The New York Times reports that the U.S. Court of Appeals for the Second Circuit yesterday heard oral argument in an appeal challenging a criminal sentence that prohibits the defendant from watching television during his period of home confinement. You can access the article here. The Times also reports that Zacarias Moussaoui's standby counsel are seeking a two-month postponement of his trial's start date, which is currently scheduled for September 30, 2002.

Friday's edition of The Washington Post contains: an article reporting on what Yaser Esam Hamdi was really doing in Afghanistan, at least according to his father; a report that "[f]ederal prosecutors want to play the cockpit tape from United Airlines Flight 93 -- in which passengers wrested control of the hijacked plane -- for the jury hearing the case of Zacarias Moussaoui"; an editorial that delivers a mixed reportcard on the Democratic-controlled Senate Judiciary Committee's confirmation of federal judges; and a quite bizarre op-ed by law professors Akhil Reed Amar and Steven G. Calabresi calling on Congress to establish term limits for U.S. Supreme Court Justices.
Posted at 00:45 by Howard Bashman

Thursday, August 08, 2002
Taking a stand on privately-funded educational junkets for federal judges: After much deliberation, I have decided that the subject of my September 2002 appellate column to be published in affiliate The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, will address the continued controversy over privately-funded educational junkets for federal judges. If anyone wishes to share views on this issue, I would welcome input via email sent to appellateblog -at- Especially thoughtful emails might even find themselves published here on this blog. For those who would rather hear me pontificate on other appellate-related issues, a complete collection of my prior published appellate columns can be accessed here.

P.S. To keep my editorial independence, I regrettably must place a moratorium until September 9, 2002 (the date of this column's publication) on any free trips offered to me by persons or entities having an axe to grind on this issue. Moreover, I will likewise be unable until September 9, 2002 to sell the rights to exclusively host this blog to Westlaw, Lexis, FindLaw or any other corporate entity that has or might sponsor trips for judges.
Posted at 23:15 by Howard Bashman

Praise be to the alphabet: Thanks to the wonders of alphabetical ordering, "How Appealing" is the very top legal news link among today's listing of "Recommended Links for Legal Researchers" on the Law Library Resource Xchange (LLRX) Web site. Let it now be known that the author of "How Appealing" has always had a thing for law librarians (or at least certain ones) and is quite pleased to see them reciprocating (click here for more evidence of this phenomenon).
Posted at 22:58 by Howard Bashman

Tonight "How Appealing" asks -- would you grant habeas corpus in this case? The U.S. Court of Appeals for the Sixth Circuit today decided a rather difficult habeas corpus case by a 2-1 vote, with each of the three judges writing a separate opinion. The majority opinion concisely summarizes the facts as follows:
In 1990, Miller and Haynes were fifteen and sixteen years old, respectively. Each, on the advice of his own defense counsel, pled guilty in Michigan state court to first degree murder. Their attorneys believed it likely that the trial court would impose juvenile sentences. The trial court did sentence them as juveniles [to confinement in a juvenile institution until age twenty-one]. In each case, the prosecution appealed and the Michigan Court of Appeals reversed. Miller and Haynes each then received the only available adult sentence under Michigan law: life in prison without possibility of parole. Neither Miller's nor Haynes' trial counsel considered or advised their respective clients that the prosecutor could appeal the imposition of a juvenile sentence.
The panel consisted of Circuit Judge Danny J. Boggs, Circuit Judge Ronald Lee Gilman, and Senior Circuit Judge Myron H. Bright, who was visiting from the U.S. Court of Appeals for the Eighth Circuit. Care to guess the outcome? Then you can click here to see the court's ruling.
Posted at 22:40 by Howard Bashman

Devlin v. Scardelletti ends not with a bang, but with a whimper: On June 10, 2002, the Supreme Court of the United States ruled in Devlin v. Scardelletti 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. (You can access my complete summary of Devlin and the five other Supreme Court decisions announced that day by clicking here.) But while Devlin certainly won a significant battle back in June, today he lost the war when the U.S. Court of Appeals for the Fourth Circuit issued this unpublished per curiam opinion holding that Devlin's objection to the class action settlement was without merit.
Posted at 22:25 by Howard Bashman

Third Circuit rules that U.S. Constitution doesn't mandate competent rescue services: Congratulations to Jane L. Istvan, an appellate lawyer in Philadelphia's City Solicitor's Office and my co-chair of the Philadelphia Bar Association's Appellate Courts Committee, for her impressive win in the U.S. Court of Appeals for the Third Circuit today in this case, which just happens to be the lead news story tonight on the nationwide version of
Posted at 22:16 by Howard Bashman

Analysis overload -- looks at the U.S. Supreme Court's 2001 Term: Tonight has posted a whole slew of articles and charts that analyze in depth the U.S. Supreme Court's 2001 Term. You can access the entire set of materials at this link. You can access the lead article here. You can access a review of the Term's business cases, co-authored by my friend Roy T. Englert, Jr., at this link.
Posted at 22:07 by Howard Bashman

There's plenty of room on the Ring v. Arizona bandwagon: The AP now reports that another federal criminal defendant facing charges that could bring imposition of the death penalty is arguing that the federal death penalty is unconstitutional as a result of the U.S. Supreme Court's June 2002 ruling in Ring v. Arizona. Move over Zacarias Moussaoui and make room for retired Air Force sergeant, and accused spy, Brian Patrick Regan.
Posted at 17:21 by Howard Bashman

"Law News & the Blog Revolution": Ernie the Attorney has a very interesting post under this heading at his blog.
Posted at 17:13 by Howard Bashman

Now it's liberals who dislike the ABA's judicial ratings Reporter Jonathan Groner of Washington, D.C.'s Legal Times has this report. And The Associated Press has just posted this related article.
Posted at 17:10 by Howard Bashman

BREAKING NEWS: The U.S. Court of Appeals for the Fourth Circuit has just issued the following order in the appeal involving Yaser Esam Hamdi, the so-called second American Taliban:
Appellees [meaning Hamdi and his father] have filed a motion to dissolve this Court's stay order of June 14, 2002. Appellants [meaning Donald Rumsfeld and a military commander] have filed a response in opposition.

The mandate in Hamdi v. Rumsfeld, No. 02-6895, shall issue forthwith and the stay is dissolved in order that the district court may proceed in strict compliance with our July 12, 2002 decision. In that decision, we directed the court to consider "the most cautious procedures first, conscious of the prospect that the least drastic procedures may promptly resolve Hamdiís case and make more intrusive measures unnecessary." Hamdi v. Rumsfeld, 2002 WL 1483908 (4th Cir. July 12, 2002). In accordance with the principles set forth in that opinion, the district court shall consider the sufficiency of the Mobbs declaration as an independent matter before proceeding further.

Entered at the direction of Chief Judge Wilkinson, with the concurrence of Judge Wilkins and Judge Traxler.
Thus, the question of what documents (if any) the government must produce to justify Hamdi's continued detention is now unambiguously back in the hands of the federal trial court judge.
Posted at 15:35 by Howard Bashman

Keep it copacetic: For anyone who might be interested in what's new with me, it's been another busy week. On Monday I filed a petition for rehearing en banc in the U.S. Court of Appeals for the Third Circuit in my INS detainee pro bono case. Yesterday I filed the opening brief for appellant/cross-appellee in the Superior Court of Pennsylvania in a case that has received some attention previously in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers. It is possible that the text of that brief will be posted online here by early next week. Within the next two hours I must dispatch to my editor at The Legal Intelligencer the text of my monthly appellate column for August 2002. This month's column describes the Third Circuit's processing of an appeal from start to finish. (Don't worry, it's more interesting than that description suggests, and, heck, you might learn something!) The text of that column will join my prior columns online here by Wednesday of next week. Finally, a couple of potential new clients, including one with a new appeal, have somehow managed to track me down. That's the latest from here; I now return you to your regular "How Appealing" programming. (This blog entry's title is courtesy of Local H.)
Posted at 12:36 by Howard Bashman

In today's newspapers: Both The New York Times and The Washington Post today contain news articles and editorials about the U.S. military's continued detention of enemy combatant and so-called second American Taliban Yaser Esam Hamdi. You can access the Times' news story here and the Post's news story here. You can access the Times' editorial here and the Post's editorial here. It now appears that the federal trial court's ability to proceed with the case is hung up on a procedural matter -- according to today's news reports, the U.S. Court of Appeals for the Fourth Circuit has not issued its mandate in the government's recent appeal, and until that happens the trial court (technically speaking) does not have the power to move the case forward.
Posted at 07:46 by Howard Bashman

Wednesday, August 07, 2002
Judges who bully lawyers aren't nice: A discussion on the Greedy Law Clerks Web site about a certain Texas-based federal district judge who has a penchant for ridiculing attorneys in published opinions has directed me to this interesting article written by Steven Lubet, a Northwestern University law professor who many years ago taught my legal ethics course. Lubet's article, originally published last year in The Green Bag, is entitled "Bullying from the Bench."
Posted at 23:19 by Howard Bashman

Stay issued in Iowa case seeking massive disclosure of pregnancy test results: tonight has posted this article, which reports that the Supreme Court of Iowa has issued a temporary stay of a trial court's order holding that pregnancy test records aren't confidential and requiring Planned Parenthood to turn over such records to help investigators find the mother of a newborn whose body was dumped in the trash.
Posted at 23:12 by Howard Bashman

PeTA protests a junior high school that dared to fly the flag of McDonald's: This decision issued today by a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit certainly involves an unusual set of facts:
PeTA members held demonstrations for animal rights on a public sidewalk across the street from Eisenhower Junior High School on January 6, 13, and 20, 1999. They chose to protest at this school because its flagpole displayed a flag from McDonald's, one of the school's sponsors. The school principal, Lori Gardner, had rejected PeTA's earlier request to remove the flag. On January 6, 1999, the protests lasted from noon to 1:00 p.m. About twelve protesters were present, including two who were arrested for trying to remove the McDonald's flag from the flagpole.
And that, I'm afraid, is just the beginning of the story.
Posted at 22:33 by Howard Bashman

Costa Rican extradition treaty saves defendant from having to serve an additional 105 years in federal prison: See this interesting decision issued today by the U.S. Court of Appeals for the Second Circuit.
Posted at 21:57 by Howard Bashman

The federal government's response to the order for production in the Hamdi case is now available online: Earlier news reports asserting that the federal government had willfully decided to disobey a federal district court's order that required the government to turn over notes taken by Yaser Esam Hamdi's military interrogators and statements made by the Northern Alliance forces who captured him appear to have been exaggerated. Rather, the federal government has merely asked the trial court to reconsider its order, as this copy of the federal government's motion and supporting brief make clear.
Posted at 21:44 by Howard Bashman

If you thought hanging chads were bad: According to this article issued tonight by The Associated Press, a Florida law "requires mothers who don't know who fathered their children to detail their sexual past in newspaper notices before they can put the children up for adoption." Is the law best viewed as "a humiliating invasion of privacy" or as a useful way "to prevent the biological father from coming forward later and disputing an adoption"? The article offers both views and reports that a handful of women are pursuing an appeal in an effort to have the law abolished.
Posted at 21:29 by Howard Bashman

Remember -- federal court proceedings in Puerto Rico must be conducted in English: Today the U.S. Court of Appeals for the First Circuit, in a unanimous three-judge panel opinion written by Puerto Rico-based Circuit Judge Juan R. Torruella, issued this reminder at the conclusion of its opinion:
With a disturbing frequency, district courts in Puerto Rico have allowed parties to offer briefs, documents, and testimony in Spanish without translation. Though we recognize that most jurors, and even judges, in Puerto Rico may be more comfortable speaking in Spanish than in English, district courts must be faithfully committed to the English language requirement. If not, the District of Puerto Rico risks disassociating itself from the rest of the federal judiciary. More importantly, appellate courts cannot properly review district court convictions on the basis of translations, later claimed as evidence, that were neither read nor heard by the jury.
As the appellate court explained earlier in its opinion:
It is clear, to the point of perfect transparency, that federal court proceedings must be conducted in English. Even if this practice were not intuitively obvious in Puerto Rico, Congress enacted section 42 of the Jones Act, which requires that "[a]ll pleadings and proceedings in the United States District Court for the District of Puerto Rico . . . be conducted in the English language."
A main purpose of this requirement, the opinion explains, is to allow the appellate court "to review evidence in the same language in which it was presented to the district court."
Posted at 21:17 by Howard Bashman

Have a salad, Caesar: Also in tomorrow's Christian Science Monitor, this article about plaintiff Caesar Barber's lawsuit against the fast-food industry for purportedly causing him to weigh 272 pounds and have health problems.
Posted at 20:54 by Howard Bashman

The Christian Science Monitor reports on efforts to split the Ninth Circuit: Tomorrow's edition of The Christian Science Monitor contains this article on efforts to divide the Ninth Circuit. (Link courtesy of InstaPundit.) While, as I explained here last night, I support efforts to divide the Ninth, I don't think that that court's ruling in the Pledge of Allegiance case adds anything of substance to the discussion of whether a split is, or is not, necessary or desirable (even though I accurately predicted at the very outset that the Pledge ruling was likely to cause pro-split-the-Ninth forces to re-energize).
Posted at 20:12 by Howard Bashman

Dahlia Lithwick's latest essay is now online: This week, her jurisprudence column on Slate focuses on a court case from Pennsylvania that has been in the news and explains "why dads don't count when it comes to abortion."
Posted at 19:55 by Howard Bashman

Fourth Amendment doesn't prohibit random searches of carry-on luggage at airports, Ninth Circuit holds: You can access the ruling here. And wouldn't you know it, the plaintiff challenging the security measure is an attorney.
Posted at 16:35 by Howard Bashman

Idaho's highest court to decide whether a man may be denied custody of his children because he is gay: The Associated Press has this report.
Posted at 16:27 by Howard Bashman

Do recent amendments cure the unconstitutionality of Arizona's death penalty? No, answers an editorial published in today's edition of The Tucson Citizen. The amendments in question became law last week in response to the U.S. Supreme Court's June 2002 ruling in Ring v. Arizona.
Posted at 16:21 by Howard Bashman

Very important election law ruling from the Second Circuit: A divided three-judge panel of the U.S. Court of Appeals for the Second Circuit today upheld against constitutional challenge that portion of a Vermont law which limits the amounts candidates for public office can spend on their campaigns. These limits apply whether or not the candidates have accepted public funding. You can access the majority opinion, written by Circuit Judge Chester J. Straub and joined in by Circuit Judge Rosemary S. Pooler, at this link. You can access the very lengthy dissenting opinion of Senior Circuit Judge Ralph K. Winter, Jr. at this link.
Posted at 16:03 by Howard Bashman

"The anatomy of a failed Borking": Thanks to a reader for bringing to my attention that The Weekly Standard has recently posted online this essay by Jeffrey Lord, who describes himself as a longtime friend of recently confirmed Third Circuit Judge D. Brooks Smith.
Posted at 10:17 by Howard Bashman

Byron York on the Priscilla Owen nomination: National Review Online today offers this essay from Byron York on the gloomy prognosis for Priscilla R. Owen's nomination to serve on the U.S. Court of Appeals for the Fifth Circuit. I noted many of the same points that York raises today in this posting made here on August 1, 2002.
Posted at 09:42 by Howard Bashman

Idaho's death penalty declared unconstitutional: The Supreme Court of Idaho yesterday ruled in a mercifully short opinion that the manner in which that State's trial courts determine whether the death penalty will be imposed on a criminal defendant is unconstitutional in the aftermath of the U.S. Supreme Court's ruling in Ring v. Arizona.
Posted at 00:30 by Howard Bashman

In Wednesday's newspapers: The battle over a requirement that incoming University of North Carolina at Chapel Hill students read a book about Islam makes the front page of today's Washington Post. "How Appealing," of course, has been covering that story for weeks now (see here and here). The Post also has a front page report on the federal government's defiance of a federal judge's order to provide him with documents that would have supported the government's classification of Yaser Esam Hamdi -- the so-called second American Taliban -- as an enemy combatant. The New York Times, meanwhile, has this report on a recess appointment that President Bush made yesterday. While recess appointments tend to stir controversy, recess appointments to the federal judiciary -- which yesterday's appointment was not -- are especially controversial for reasons I have previously explained here.
Posted at 00:19 by Howard Bashman

Tuesday, August 06, 2002
Firearms manufacturers lose constitutional challenge to the federal semi-automatic assault weapons ban: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit rejected a constitutional challenge brought by firearms manufacturers (and originally spearheaded by the National Rifle Organization) to Title XI of the Violent Crime Control and Law Enforcement Act of 1994, commonly referred to as the "semi-automatic assault weapons ban." You can access the Sixth Circuit's decision here.
Posted at 22:20 by Howard Bashman

A win by any other name: Some lawyers with whom I once practiced would joke that it was possible to view most any outcome in litigation as a victory. Whether former Secretary of Labor Alexis M. Herman will feel that way when she sees this ruling issued today by the U.S. Court of Appeals for the District of Columbia's Division for the Purpose of Appointing Independent Counsels, Ethics in Government Act of 1978, As Amended, remains to be seen. After all, she did win reimbursement of attorneys' fees and other expenses in the amount of $12,625.75. So what if her application sought reimbursement for fees and expenses totaling $335,919.52.
Posted at 22:15 by Howard Bashman

The key to good appellate judging? A healthy breakfast, of course! Tonight "How Appealing" is pleased to sing the praises of Circuit Judge Diarmuid F. O'Scannlain of the U.S. Court of Appeals for the Ninth Circuit, who now officially joins the ranks of this blog's favorite writers and thinkers in the federal judiciary (non-Seventh Circuit category (see the very bottom of this post if you care to understand what this parenthetical is all about)).

Why Judge O'Scannlain? Well, it's not simply because he works in a building with a really cool name, The Pioneer Courthouse in Portland, Oregon. Nor is it merely because he favors splitting the current Ninth Circuit into two smaller circuits, although this blog's author also finds that proposal appealing. You can likewise rule out as the cause a report that I received the other day from one of my former co-clerks that Judge O'Scannlain was a good friend of the deceased federal appellate judge for whom I clerked on the U.S. Court of Appeals for the Third Circuit. Finally, tonight's honor has nothing to do with the possibility that federal judicial law clerks working in the Pioneer Courthouse read this blog from time to time.

Rather, the cause of tonight's long overdue recognition is Judge O'Scannlain's opinion concurring in the judgment issued today in In re Watts. Judge O'Scannlain's concurring opinion begins:
I find myself in the perplexing position of being bound by a precedent counseling that I need not be bound by a precedent.
He then proceeds to explain (with footnotes and most citations omitted by me):
It is a bedrock principle of our court that the published decision of one three-judge panel binds every other panel, from that day forward. Put another way, one panel may not overrule another; the power to overrule is confided to the en banc court, and the en banc court alone. Panels may distinguish; they may question; they may deploy virtually any of the other verbs in the Shepard's vocabulary. But they may not overrule.

There are exceptions. We need not convene the en banc court when the Supreme Court reverses us directly. Nor must we do so when that Court, in reviewing a case from another circuit, knocks the props out from under one of our decisions. This practice represents our confidence, as a court, that our three-judge panels are able to tell the difference between a Supreme Court ruling that rips one of our decisions from the Federal Reporter altogether and one that leaves at least a hanging chad behind. But it also represents our confidence that the Supreme Court stands ready to review and to reverse us when necessary (a proposition for which, I think, no citation is required).
This last parenthetical remark, of course, is an example of the Ninth Circuit's self-deprecating humor.

The problem that Judge O'Scannlain is grappling with is best described as follows: Federal courts often decide cases in which state law provides the governing rules of decision. In those cases, the highest court of a State has the final say on what state law means. Unfortunately, federal trial and appellate courts must predict how a State's highest court would rule on a question that has yet to be addressed. As an added wrinkle, the Ninth Circuit follows a policy whereby if an intermediate state appellate court has addressed an issue that that State's highest court has yet to resolve, the Ninth Circuit will treat itself as bound by the intermediate appellate court's ruling unless it seems clearly mistaken.

In the case decided today, a state law question arose that the Ninth Circuit had predicted the outcome of back in 1997. In the interim, two intermediate state appellate courts from the State at issue addressed the very same question and ruled the opposite of how the Ninth Circuit had predicted. As a result, today the Ninth Circuit overruled its decision from 1997 and followed the holdings of the two intermediate state appellate courts.

I, like Judge O'Scannlain, view this approach to be questionable. As he explains today:
I believe this salutary predictability justifies following circuit precedent even when a state intermediate appellate court subsequently issues a contrary opinion. One never knows, after all, when the other shoe will drop and another state court will take the opposite position. California maintains a dispersed intermediate appellate court, with six independent districts. Are we to revisit our rulings each time the weight of authority shifts? (If the First District decides on holding A, the Second and Third hand down holding not-A the next year, and the Fourth, Fifth, and Sixth weigh in with holding A the following year, will we have to undertake three overrulings, with a fourth when the California Supreme Court finally settles on outcome not-A?) I would prefer to keep to a minimum the frequency with which we receive a new datum, revise our view of state law accordingly, and reverse ourselves.

But can we not ascertain from our own reading of the law how likely it is that this parade of horribles will actually march in any given case? To do so here, we would have to evaluate whether the [prior] panel's decision is so out of line with California law that no other Court of Appeal is likely to adopt it. And it is precisely that sort of on-the-merits reexamination of prior precedent that we are supposed to leave to the en banc court.

One could certainly argue that the mere fact of a panel opinion should not be given this near-conclusive weight. After all, the three judges (or two) who arrived at the precedential holding in question may or may not have had the benefit of thorough briefing, immersion in the pertinent state law, or a nutritious and balanced breakfast. Cf. Payne v. Tennessee, 501 U.S. 808, 834 (1990) (Scalia, J., concurring) ("[W]hat would enshrine power as the governing principle of this Court is the notion that an important constitutional decision with plainly inadequate rational support must be left in place for the sole reason that it once attracted five votes.").

But that is not our usual rule -- and for good reason. Stare decisis is of particular importance in federal courts. We are, after all, courts of limited jurisdiction that do not enjoy the general common lawmaking authority that many state courts do. And the fact that federal judges are not lawmakers is inextricable from the fact that we enjoy the constitutional armoring that secures our independence -- appointment (rather than election), life tenure, and salary protection. Cf. Chisom v. Roemer, 501 U.S. 380, 400 (1991); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59 n.10 (1982) (plurality opinion). Our status ill suits us to lawmaking; indeed, the Framers' expectation that we would not be making law secured us our judicial independence in the first place.

Stare decisis provides crucial reassurance on the latter point: it demonstrates that our decisions represent more than the subjective preferences of the concurring judges. The Federalist No. 78, at 471 (Alexander Hamilton) (Clinton Rossiter ed. 1961) ("To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them . . . ." ); see also, e.g., Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 652 (1895) (White, J., dissenting) ("The fundamental conception of a judicial body is that of one hedged about by precedents which are binding on the court without regard to the personality of its members."). In the courts of appeals, we three-judge panels bind ourselves rigorously to this mast and allow only the en banc court to release us. I find it unfortunate that [two previous governing Ninth Circuit decisions] have departed from this rule.
So, the next time you come across a federal appellate decision with which you disagree, remember these words of wisdom from Judge O'Scannlain: "After all, the three judges (or two) who arrived at the precedential holding in question may or may not have had the benefit of thorough briefing, immersion in the pertinent * * * law, or a nutritious and balanced breakfast." Indeed, while some may poke fun at the lawsuit alleging that the fast-food industry causes obesity, the law too often overlooks the importance of a healthy breakfast.
Posted at 21:09 by Howard Bashman

The vast majority of ethics complaints filed against federal judges are utterly meritless: Unfortunately, this article published this evening by The Associated Press suggests -- without much direct evidence -- that the current system of self-policing within the federal judiciary is too lenient.
Posted at 20:07 by Howard Bashman

If you thought the lawsuit filed against the fast-food industry for causing obesity was bad: The Onion, in its August 7, 2002 edition, has a very funny infographic listing eight other quite similar lawsuits. Hmmm, first The Onion moves from Madison, Wisconsin to New York City, then the editor of the New York City-based takes a temporary hiatus, and now this infographic appears. Wonder what M. Night Shyamalan would say about this set of apparent coincidences?
Posted at 19:36 by Howard Bashman

Federal government's brief filed in Eldred case: The federal government yesterday filed its Brief for Respondent in Eldred v. Ashcroft. The case, which the U.S. Supreme Court has agreed to review on the merits, could turn out to be one of the most significant copyright disputes ever decided. Two questions are at issue in the case: (1) Whether Congress's recent twenty-year extension of the terms of all unexpired copyrights violates the Copyright Clause of the Constitution insofar as it applies to works in existence when it took effect?; and (2) Whether Congress's twenty-year extension of the terms of all unexpired copyrights violates the First Amendment?
Posted at 19:22 by Howard Bashman

This could prove interesting: The Associated Press is reporting that the federal government has refused to comply with a federal district judge's order requiring the government to turn over "notes taken by Yaser Esam Hamdi's military interrogators and statements made by the Northern Alliance forces who captured him."
Posted at 16:13 by Howard Bashman

Learn something new every day: Until the U.S. Court of Appeals for the Ninth Circuit released this opinion today, I didn't know that "as a byproduct of their metabolism, the mussels * * * produce and release, as particulate matter, feces and pseudo-feces, and they generate dissolved materials in the form of ammonium and inorganic phosphate (collectively, 'mussel byproduct')." A Google search revealed helpful links here and here on the subject of pseudo-feces.
Posted at 15:13 by Howard Bashman

Welcome to South Carolina, plutonium: The U.S. Court of Appeals for the Fourth Circuit today formally rejected South Carolina's challenge to the U.S. Department of Energy's plan to store surplus plutonium in that State. You can access the court's ruling here. Governor Jim Hodges is now vowing to seek U.S. Supreme Court review.
Posted at 15:02 by Howard Bashman

Another last meal that wasn't: Yesterday the U.S. Court of Appeals for the Eleventh Circuit stopped an execution in Georgia after the prisoner had consumed what was to have been his last meal. The Atlanta Journal-Constitution has this report.
Posted at 13:13 by Howard Bashman

Coming in January, a Thurgood Marshall postage stamp: The U.S. Postal Service has announced that in January 2003 it will be releasing a postage stamp to commemorate former U.S. Supreme Court Associate Justice Thurgood Marshall. USAToday has this report.
Posted at 13:07 by Howard Bashman

In today's newspapers: The Los Angeles Times contains this report on yesterday's California Supreme Court rulings (see my original post, with links to these rulings, here) in two tobacco liability cases.

Today's New York Times is chock full of noteworthy news reports. The U.S. Court of Appeals for the Second Circuit is on the verge of hearing an appeal from an 80-year-old man who is suing for admission to law school. Later this week the Second Circuit will hear an appeal by the State of Connecticut from a federal district judge's ruling that has opened the floodgates for candidates who wish to be listed on that State's primary ballot for Congressional and statewide offices. And speaking of the Second Circuit, federal prosecutors have appealed from U.S. District Judge Shira A. Scheindlin's ruling that the government may not use a law that allows detention of material witnesses to hold people for grand jury investigations. Finally, today's NYTimes contains this editorial praising the recent ruling that requires the federal government to disclose the names of those it has arrested and detained in connection with the government's September 11th terrorist investigation (see my original post, with a link to this ruling, here).
Posted at 08:30 by Howard Bashman

A wrap-up of the Pa. ex-boyfriend abortion injunction case: Adam Litpak of The New York Times offers this report in today's paper. Plus, here's coverage from The Philadelphia Inquirer and a related editorial from The Times Leader of Wilkes-Barre, Pa.
Posted at 08:12 by Howard Bashman

Monday, August 05, 2002 is now offering this profile of U.S. District Judge Leonie M. Brinkema, who is presiding over the criminal trial of Zacarias Moussaoui.
Posted at 23:23 by Howard Bashman

Pledge mom says let it be: According to this report from The Associated Press, the mother of the child whose rights are at issue in the Pledge of Allegiance case has moved to intervene in that Ninth Circuit appeal and is asking the court to reverse its ruling and allow schoolchildren to continue to recite the words "under God" in the Pledge.
Posted at 23:15 by Howard Bashman

Don't obstruct illegal commerce either: Today Circuit Judge Richard A. Posner reminds us, in this opinion for a unanimous three-judge Seventh Circuit panel, that cocaine sellers who instead rob their customers at gunpoint can be prosecuted under the federal Hobbs Act for obstructing interstate commerce even though the commerce in question is illegal.
Posted at 22:58 by Howard Bashman

Sometimes panel rehearing causes more problems than it solves: Before panel rehearing, two of the three judges on this Seventh Circuit panel agreed on a single rationale. After panel rehearing, the three-judge panel is now split three different ways.
Posted at 22:54 by Howard Bashman

Possession of eagle feathers without a permit: Today the en banc U.S. Court of Appeals for the Tenth Circuit decided a case involving a federal law that prohibits the possession of bald or golden eagle feathers without a permit. At issue was whether the Religious Freedom Restoration Act excused violations of the eagle feather act committed by several followers of Native American religions. You can access the Tenth Circuit's 71-page en banc ruling here.
Posted at 22:41 by Howard Bashman

Racial slur case in Pennsylvania pits the ACLU against the NAACP: Thanks to Mitch Sommers, a longtime faithful reader of "How Appealing," for drawing my attention to this story. The case has drawn somewhat conflicting reactions from the ACLU and the NAACP.
Posted at 22:24 by Howard Bashman

Injunction prohibiting Pennsylvania woman's abortion is dissolved: The Associated Press is reporting that a Pennsylvania state trial court judge has today dissolved an injunction issued last week that had prohibited a woman from having an abortion. The injunction was issued in a lawsuit brought by the woman's former boyfriend, who had sought to force her to carry her pregnancy to term. Update: Courtesy of FindLaw, you can access here a copy of the court's decision.
Posted at 15:37 by Howard Bashman

Two important tobacco liability rulings from California's highest court: The Supreme Court of California has today issued two decisions that will be of interest both to tobacco producers and to smokers who live in that State. You can access the rulings here and here.
Posted at 14:58 by Howard Bashman

Brent Staples on school vouchers: On the editorial page of today's New York Times, Brent Staples discusses the aftermath of the U.S. Supreme Court's decision upholding Cleveland's school voucher program.
Posted at 14:48 by Howard Bashman

In today's Los Angeles Times: Today's edition of The Los Angeles Times contains this article about a lawsuit the Hale O Kaula church brought against the Maui (Hawaii) Planning Commission and others under the Religious Land Use and Institutionalized Persons Act (RLUIPA) to challenge the denial of a building permit that the church had sought. You can access more information about this lawsuit here.

According to a federal government attorney who emailed me last week: "If you're interested in courts of appeals cases dealing with RLUIPA, there are currently 3 cases in which the constitutionality of RLUIPA is definitely at issue (3rd, 6th, and 9th Circuits -- 9th Circuit will hear argument on 9/11/02), and at least one other (7th Circuit) in which merits issues related to RLUIPA are in play (and possibly the statute's constitutionality)."
Posted at 09:28 by Howard Bashman

His love of hard rock kept him from being trapped beneath it: You can access here the story of the tenth miner who wasn't, courtesy of this morning's Pittsburgh Post-Gazette.
Posted at 08:17 by Howard Bashman

Sunday, August 04, 2002
An unusual battle over a woman's right to have an abortion is underway in the Pennsylvania state court system. You can read local coverage of this dispute here, here, here, and here.
Posted at 23:34 by Howard Bashman

What's the only thing worse than an unarmed troublemaker? Watch out! In an article published in today's edition of The Boston Globe, Sasha Volokh admits that he's "a bit of a troublemaker" and he may be packing heat. The New York Times Co. (which owns The Globe) is providing complete coverage of the Volokh family today, as Sasha's brother Eugene was quoted in this article printed today in the company's flagship publication.
Posted at 16:56 by Howard Bashman

A look back at the past twenty months for Solicitor General Theodore B. Olson: Sunday's edition of The New York Times takes a look back at the past twenty months for Solicitor General Theodore B. Olson. Sadly, one very significant loss overshadows his quite impressive record of appellate court victories.
Posted at 00:50 by Howard Bashman

In Sunday's newspapers: In The Washington Post, columnist Gene Weingarten offers some humorous thoughts about the Ninth Circuit's ruling in the Pledge of Allegiance case (plus, Weingarten obtained some research assistance for his column from Harvard Law School Professor Laurence H. Tribe). In other news, The New York Times today reports that if you behave really badly in prison, you could get stuck eating "the loaf."
Posted at 00:45 by Howard Bashman

Saturday, August 03, 2002
A pantyhose fetish in New York, and golf and prostitution in California: The latest installment of the monthly column written by Associate Justice William W. Bedsworth of the California Court of Appeal, Fourth District, Division 3, in Santa Ana, California, is now available online. As usual, you don't want to miss it.
Posted at 23:01 by Howard Bashman

In Sunday's New York Times: Reporters Adam Liptak, Neil A. Lewis, and Benjamin Weiser have co-authored a lengthy article that examines the legal battle over the limits of civil liberties in the aftermath of September 11th.
Posted at 17:00 by Howard Bashman

Justice Clarence Thomas on the cover of tomorrow's Washington Post Magazine: The Washington Post's Magazine section for Sunday, August 4, 2002 features a cover story entitled "The Lonely Stand of Clarence Thomas: Why he still can't get past the past." You can access this lengthy profile of Justice Thomas here.
Posted at 13:04 by Howard Bashman

View the recent House subcommittee hearing on whether to split the Ninth Circuit: C-SPAN's fine program "America and the Courts," which airs tonight at 7 p.m. eastern time, will broadcast a portion of the recent hearing held by the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property on whether to divide the U.S. Court of Appeals for the Ninth Circuit. (You can access my thoughts about the hearing, written on the day the hearing occurred, at this link.) C-SPAN also makes available for online viewing the entire subcommittee hearing, and you can access a link to it on this Web page.
Posted at 12:07 by Howard Bashman

The Ninth Circuit and the death penalty: Motivated by my final post of August 1, 2002 (sorry, you'll have to scroll down because permalinks for August aren't working yet) about the Ninth Circuit case in which a 6-5 en banc panel vacated a prisoner's death penalty after a 2-1 three-judge panel had affirmed that sentence (producing an even 7-7 split among the fourteen different Ninth Circuit judges assigned to decide the case), a news reporter who frequently covers the Ninth Circuit sent me an email stating:
Your point about the equal division among the fourteen judges to have reviewed the case is well taken. I tend to think that if you have that many judges look at a case and the division is even close, let alone equal, there is probably something wrong with the case. A few Ninth Circuit judges will probably never allow a death case to go forward (I can think of one for sure). But despite having more Democratic nominees than Republican, I think the ideological split on the death penalty question is pretty even, if not slanted pro. That's because many of the Clinton appointees don't have a problem with it (see, for example, Judge Tallman's dissent).

You can make a good argument -- I've never heard it made before -- that the very nature of appellate review is arbitrary and capricious. There's a random selection of judges, and believe you me, which judges you get matters -- probably more so on the death penalty issue than any other. What I'd like to see is something completely different for these cases -- maybe a one-time, 5 or 7 judge panel for each death case. After that, it's "true en banc" or bust. And true en banc has never happened.

The numbers: (current through early May) The Ninth Circuit had decided 35 death cases since Jan 1, 2000. Only 8 denied the petitioner any relief. (the rest of the numbers overlap, but that one gives you an idea) 24 of the cases were from California -- in half, the sentence was vacated. One-quarter were remanded for an evidentiary hearing. Five denied relief, and two vacated the conviction. Arizona had the next largest number of cases with six. Five were remanded for an evidentiary hearing. One denied relief.

How these cases can meander through the courts for twenty years only to be sent back to 'go' to start over again is a good question. And how some of these cases make it to the Ninth Circuit without some other judge along the way seeing a problem, frankly, is also a pretty good question.
I thank the source of these remarks for sending them along.
Posted at 11:49 by Howard Bashman

Some kind words from Canada: Thanks to Canadian journalist and blogger Colby Cosh (you can access his bio here) for including "How Appealing" on an impressive list of his dozen favorite Web logs.
Posted at 11:37 by Howard Bashman

Friday, August 02, 2002
Coming Monday from the Supreme Court of California: The Supreme Court of California has announced that on Monday, August 5, 2002 it will issue two decisions likely to be of great importance to tobacco users in California and to tobacco producers wherever based. Look for an update here on Monday. By the way, it's quite handy for an appellate court to provide this sort of advance notice of forthcoming decisions -- too bad more courts don't currently do so.
Posted at 23:25 by Howard Bashman

Now available through (1) Tony Mauro addresses the likely next U.S. Supreme Court battle for school voucher advocates; (2) when neither Laurence Tribe nor Walter Dellinger suffices to assure U.S. Supreme Court review, you could always hire them both, as Nike has done in seeking review of a California Supreme Court decision holding that a company may be sued for false advertising over policy statements made in public relations campaigns; and (3) Jason Hoppin offers this report on today's Ninth Circuit ruling that executions are "public events." (Scroll down to see my post that discusses and links to this Ninth Circuit decision issued today.)
Posted at 23:12 by Howard Bashman

Yes, Virginia, there is a U.S. Court of Appeals for the Armed Forces: In this blog's nearly three months in existence, "How Appealing" has yet to even mention the U.S. Court of Appeals for the Armed Forces. Notwithstanding that appellate court's most impressive Web site, there is only so much interest one can generate for a court that is devoted to deciding appeals arising from criminal proceedings brought by the military against its own servicemen and servicewomen. Today, however, some news arose via a press release on President Bush's Web page:
The President intends to nominate Charles E. Erdmann to be a Circuit Judge of the United States Court of Appeals for the Armed Forces. Erdmann is currently a Judicial Reform Consultant with Booz-Allen and Hamilton. Erdmann was the Chief Judge of the Boznia and Herzegovina Election Appeals Sub-Commission and a Program Manager in the Office of High Representative of Bosnia and Herzegovina. From 1995 to 1997, Erdmann was a Justice on the Montana Supreme Court, and he operated a private law practice from 1986 to 1995. Erdmann has been a member of the Montana Air National Guard since 1981 and holds the rank of Colonel. He is a graduate of Montana State University and the University of Montana School of Law.
It's heartening to see someone so highly qualified (and a "judicial reform consultant" to boot) receive this nomination.
Posted at 19:14 by Howard Bashman

The Associated Press is reporting that: (1) The University of North Carolina at Chapel Hill has moved to dismiss a lawsuit challenging the "requirement for incoming freshmen to read 'Approaching the Qur'an: The Early Revelations'" (you can access my earlier post about this suit here); and (2) President Bush today has signed into law a bill that "will allow families and victims of Sept. 11 to watch on closed-circuit TV the trial of Zacarias Moussaoui, the only person charged in the terror attacks" -- assuming there is a trial, of course.
Posted at 19:02 by Howard Bashman

Terror detainees' names must be released, federal district court orders: Judge Gladys Kessler of the U.S. District Court for the District of Columbia has ruled today that the U.S. Department of Justice must "disclose within fifteen days the names of those it has arrested and detained in connection with its September 11, 2001 terrorist investigation" unless two quite limited exceptions apply. You can access Judge Kessler's ruling here. I expect that the Department of Justice will seek appellate review and a stay of this ruling.
Posted at 16:07 by Howard Bashman

Sixty sites in sixty minutes: "How Appealing" has recently received mention on two lists of Web sites compiled by legal technology specialists. The first list you can access here, courtesy of LexisNexis and those wacky librarians at the American Association of Law Libraries annual meeting. The second list you can access here, courtesy of a continuing legal education course offered earlier this week by the Pennsylvania Bar Institute.
Posted at 15:59 by Howard Bashman

Bork vs. Bork: Earlier this week former D.C. Circuit Judge and U.S. Supreme Court nominee Robert H. Bork appeared as a guest on C-SPAN's "Washington Journal" program. During his interview, Bork expressed his deep disappointment that American Spectator magazine used a cover illustration in which "[s]ix of the nine Justices of the Supreme Court are depicted as clowns of one sort or another, and a dog in a dunce cap is placed in the middle, for no intelligible reason" to promote an interview with Bork contained in the magazine. (In an amazing coincidence, the conservative magazine did not ridicule the Court's three most conservative Justices on the cover.) Today The Washington Post reports that the illustrator of the cover that Judge Bork found so objectionable was no one other than his 43-year old son, Charles Bork, who serves as the American Spectator's creative director. (See the second item at this link.) It would thus appear that further discussion of this issue will be occurring in private.
Posted at 15:24 by Howard Bashman

California must show more of the lethal injection process, Ninth Circuit holds: Today the U.S. Court of Appeals for the Ninth Circuit affirmed a trial court order striking down San Quentin Internal Procedure 770, which prohibits witnesses from observing a prisoner's execution until after the execution team members exit the chamber. As a result, the press, members of the public, and other interested observers will now be able to see the following:
Approximately 25 minutes before the execution is scheduled to take place, four guards escort the condemned inmate from a special overnight holding cell to the execution chamber. Though his legs are free, the condemned is handcuffed and his wrists are shackled to his waist. Upon entering the execution chamber, the condemned is laid on a gurney, to which he is secured with six straps. Next, two of the four guards leave and two medical technicians enter to insert two intravenous lines (one is redundant, in the event the main line fails). Once the intravenous lines are inserted, a saline solution begins to flow into the inmate's veins and all staff exit the chamber.
The victorious parties in this appeal were the California First Amendment Coalition and the Society of Professional Journalists, Northern California Chapter. To access the Ninth Circuit's unanimous three-judge panel decision in this matter, click here.
Posted at 14:26 by Howard Bashman

Constitutional law scholar Gerald Gunther died earlier this week. You can read profiles of him here and here, and you can access his online bio here.
Posted at 11:57 by Howard Bashman

Today's understatement of the day: From an article published in today's edition of The Atlanta Journal-Constitution: "In appealing its state Senate map to the U.S. Supreme Court, Georgia is laying the groundwork for a potential national precedent."
Posted at 10:05 by Howard Bashman

Los Angeles Times offers background on dispute between attorney author and West Publishing: Today's issue of The Los Angeles Times offers this article explaining the background of a dispute between West Publishing Company and the author of a treatise on the law of fiduciary duty that led to a Ninth Circuit ruling on June 7, 2002. Longtime readers of this blog will recall that I first mentioned that decision on the very day it issued.
Posted at 10:00 by Howard Bashman

Dahlia Lithwick's op-ed in today's New York Times: Moving from the big time (Slate) to the really big time (The New York Times), one of my favorite legal commentators (and hands down my very favorite reporter when it comes to coverage of U.S. Supreme Court oral arguments) -- Dahlia Lithwick -- has an op-ed in today's NYTimes. Her essay contends that "the United States government * * * deliberately charged [Zacarias Moussaoui] with a crime that it couldn't prove." You can access her op-ed here. As a longtime fan of Ms. Lithwick's writing, the author of this blog is quite pleased that her work is beginning to get the sort of attention that it deserves.
Posted at 00:36 by Howard Bashman

Thursday, August 01, 2002
After rehearing en banc, Ninth Circuit is split 7-7 in death penalty case: In what would have to rank as the worst nightmare for both supporters and opponents of dividing the U.S. Court of Appeals for the Ninth Circuit, after a total of fourteen judges of that court examined the result in a death penalty case from California, the Ninth Circuit has split 7-7 on whether the prisoner's death penalty was constitutionally imposed.

On August 2, 2001, a three-judge panel consisting entirely of Ninth Circuit judges in regular active service ruled 2-1 that the prisoner's death penalty was constitutionally imposed. Thereafter, however, the entire Ninth Circuit voted to take the case en banc. Today, just one day shy of the one year anniversary of the panel's original ruling, an eleven-judge en banc panel that included none of the three judges who served on the original panel divided 6-5 and held that the imposition of the death penalty was unconstitutional. (The Ninth Circuit's Chief Judge provided the decisive vote, proving the point I made in this recent post).

Fourteen different Ninth Circuit judges have reviewed this case, the parties' briefs, and the record, and those fourteen judges have divided evenly -- 7 to 7 -- over whether this death sentence was constitutionally imposed. Of course, the eleven judge en banc panel gets to have the final word -- that is, unless the full court agrees to grant rehearing en banc before the full court.

If there ever was a Ninth Circuit case that seemed to cry out for full court en banc, a death penalty case in which the fourteen judges who examined the ruling split 7-7 on its outcome would seem to fit the bill. Only time will tell whether such a full court en banc ever occurs in the current, humongous Ninth Circuit.
Posted at 23:05 by Howard Bashman

Inadmissible aliens qualify for parole if not deported within 90 days, Ninth Circuit holds: A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today ruled, by a 2-1 vote, that inadmissible aliens -- illegal aliens who are detained before successfully entering the country -- are entitled to seek parole from prison if not deported within 90 days under the same statute that allows formerly legal aliens subject to deportation to seek parole if not deported within 90 days. This ruling seems correct as a matter of statutory interpretation, but the dissent also makes a very compelling argument.
Posted at 22:57 by Howard Bashman

Marci A. Hamilton today defends the Ninth Circuit's ruling in the Pledge of Allegiance case in her column published on FindLaw.
Posted at 22:43 by Howard Bashman

Is Priscilla Owen's nomination doomed to die in the Judiciary Committee? Even though the Senate Judiciary Committee didn't hold a hearing on Priscilla R. Owen's nomination to join the U.S. Court of Appeals for the Fifth Circuit until July 23, 2002, the Senate Democrats who control the committee nevertheless scheduled her nomination for a committee vote yesterday -- a mere eight days later. The Republicans on the Judiciary Committee exercised their prerogative to postpone the vote -- typically the postponement lasts a week, but the Senate is due to go into recess next week, so the postponement will last a bit longer than that. However, the Democrats on the Judiciary Committee would never have scheduled the Owen nomination for a vote unless they were assured that her nomination was doomed to failure. If Owen's nomination is rejected, she will be the second of President Bush's nominees to the Fifth Circuit to have failed to get out of the Judiciary Committee. The first was Charles W. Pickering, Sr. Today the Fifth Circuit only has two vacancies. And, of course, the Senate did unanimously confirm Bush nominee Edith Brown Clement to the Fifth Circuit on November 13, 2001.
Posted at 22:33 by Howard Bashman

Ramesh Ponnuru should resign! Who? You know, that guy on National Review Online who today urges Chief Justice Rehnquist to resign -- in order to help conservatives, no less. Could this idea really be as utterly stupid as it seems? I'm afraid so.
Posted at 22:11 by Howard Bashman

Dahlia Lithwick's latest essay discusses the TIPS program, and you can access her thoughts on that seemingly failed initiative here.
Posted at 22:08 by Howard Bashman

When I wrote here two days ago that "the Third Circuit is not accustomed to having its nominees undergo contentious confirmation battles," I didn't mean to imply that the U.S. Court of Appeals for the Third Circuit has never experienced anything like the contentious battle that has just ended (see here and here) over the confirmation of D. Brooks Smith to serve on that court.

As predicted, the Senate yesterday, by a vote of 64-35, confirmed Smith to serve on the Third Circuit. To see how your Senators voted, click here. To read the debate that immediately preceded the vote, click here, then select the eighth item on the list, and finally click the link entitled "Full Display." Interestingly, of the Senators from the three States in the Third Circuit -- Delaware, New Jersey, and Pennsylvania -- only the Senators from New Jersey (Corzine and Torricelli) voted against Smith. New Jersey-based litigants thus might wish that Judge Smith isn't on their Third Circuit panels (just kidding!).

One must look back nearly eight years ago to find the last confirmation battle over a Third Circuit nominee. That battle also involved a then-sitting federal district judge who used a first initial rather than a first name. On October 4, 1994, the Senate confirmed H. Lee Sarokin, then a U.S. District Judge for the District of New Jersey, to serve on the Third Circuit. The vote on Sarokin's Third Circuit confirmation was 63-35. Just as Judge Smith's critics have attacked him as too conservative, Judge Sarokin's critics had attacked him as too liberal.

Judge Sarokin ended up serving fewer than two years on the Third Circuit. In his controversial resignation letter to President Clinton, Sarokin wrote: "It is apparent that there are those who have decided to 'Willie Hortonize' the federal judiciary, and that I am to be one of their prime targets." Others attributed Sarokin's resignation to the Third Circuit's rejection of his request to move his chambers to California. (See his second letter, written to other Third Circuit judges, at this link.) So, while the confirmation battle over Judge Smith is unusual for the Third Circuit, it certainly is not unprecedented.
Posted at 19:39 by Howard Bashman

Hot and really hot: I have been known to observe, on particularly cold winter days in Philadelphia, that it's not the cold -- it's the absence of humidity. Well, I have just returned from my trip to Phoenix, Arizona -- into the jurisdiction of the Ninth Circuit -- and have the following two observations to offer. First, a one-day trip to Phoenix, Arizona from Philadelphia, Pennsylvania is a recipe for exhaustion. I left Philly yesterday morning for Phoenix; I left Phoenix this morning for Philadelphia. Second, yesterday in Phoenix the high was only 103 degrees (yes, some radio station d.j. there actually said that), but it didn't feel all that bad because of the low humidity. Today in Philly the high is around 97 degrees, but it feels far worse than Phoenix because of the very high humidity. Of course, it's nice to be home nevertheless, and regular blogging should resume shortly.
Posted at 16:15 by Howard Bashman

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