How Appealing

Monday, September 30, 2002
U.S. Supreme Court orders due 10 a.m. tomorrow: I am reliably advised that the Supreme Court of the United States will be handing down orders granting cert. in the most deserving of newly-filed cases that have accumulated over the summer recess at 10 a.m. tomorrow, Tuesday, October 1, 2002.

As longtime readers are aware, when it comes to covering the U.S. Supreme Court, "How Appealing" doesn't try to be first with the news. Rather, this blog tries to be funniest and, failing that, most insightful. Those who try to be first with U.S. Supreme Court news often end up looking like so many reporters did on the night of December 12, 2000: "Well, Dan, it's a very long opinion written by Justice Per Curiam, and it seems to say that the counting of votes in Florida can go forward."
Posted at 23:57 by Howard Bashman



That's Justice Smarty-Pants to you: Blogger Stuart Buck has an essay online at Tech Central Station entitled "Smarty Pants in Robes: Who is the smartest Supreme Court Justice?" Unfortunately, the link to the essay isn't currently working. So much for the "Tech" in TCS, I guess. Can't wait to see what Stuart has to say on this intriguing subject.

Update: The link to Stuart's essay is now working. A reader points out via email that a photo of the U.S. Supreme Court building that accompanies Stuart's essay is accompanied by the words "Department of Justice."
Posted at 23:40 by Howard Bashman



Fifth Circuit grants en banc review to determine proper punishment for embarrassing Kmart: You can access the Fifth Circuit's order issued today granting en banc review at this link. You can access here that court's divided three-judge panel opinion, which the order granting en banc review has vacated.
Posted at 23:23 by Howard Bashman



How else would you expect turtles to raise $286,082.73? In the case of Loggerhead Turtle and Green Turtle, et al. v. The County Council of Volusia County, Florida, the U.S. Court of Appeals for the Eleventh Circuit today ruled that the district court acted properly in awarding $286,082.73 to the turtles' lawyers (humans, presumably) under the partially discredited catalyst theory. You can access the Eleventh Circuit's ruling at this link.
Posted at 23:11 by Howard Bashman



Senate Judiciary Committee will hold a hearing tomorrow to consider U.S. Supreme Court's recent federalism rulings: The Senate Judiciary Committee has scheduled a hearing for 10 a.m. eastern time tomorrow to consider the U.S. Supreme Court's recent federalism rulings. The hearing is entitled "Building on 'Narrowing the Nation's Power: The Supreme Court Sides with the States'" and will be chaired by Senator Charles E. Schumer (D-NY).
Posted at 23:04 by Howard Bashman



Could Pennsylvania be on the verge of eliminating the election of state court judges? That's what some "local legal luminaries" believe, according to this article from The Legal Intelligencer. The local legal luminary who authors this blog remains quite skeptical, however, for the reasons I explained here in the installment of my monthly appellate column that was published in The Legal Intelligencer on September 10, 2001.
Posted at 23:00 by Howard Bashman



Appellate brief leads Fifth Circuit to chastise lawyers: law.com has this report.
Posted at 22:53 by Howard Bashman



"Estrada: Just One Vote Away?" That's the title of Jonathan Groner's article in this week's issue of The Legal Times. The article is now available online via law.com.
Posted at 22:47 by Howard Bashman



Fifth Circuit rejects former Louisiana Gov. Edwin Edwards's attempt to remain out of prison while seeking U.S. Supreme Court review: You can access the order that the U.S. Court of Appeals for the Fifth Circuit issued today at this link. The Associated Press reports here on what the order means.
Posted at 20:55 by Howard Bashman



Moussaoui trial postponed until May 2003: CNN.com is reporting that the trial of accused twentieth hijacker Zacarias Moussaoui has been moved back from January 2003 to May 2003. You can access a copy of the trial court's order at this link. The order makes clear that jury selection will begin in late May and the trial itself won't actually get underway until late June 2003. The order also grant's "the defendant's Motion to Get a Bigger Cave."
Posted at 16:45 by Howard Bashman



How not to win an IOLTA challenge: The U.S. Court of Appeals for the Third Circuit, by means of a not precedential opinion issued today, furnishes this example. Given that a circuit split exists over the constitutionality of such IOLTA programs, one might have expected that the second to last paragraph of this opinion would have shown more sensitivity to the plaintiff's claims. Here's a link to more information about an IOLTA challenge that the U.S. Supreme Court has agreed to review on the merits during its October 2002 Term.
Posted at 16:13 by Howard Bashman



From the "How Appealing" mailbag: "Check out the opening paragraph in Patel v. Searles, No. 00-9552, decided today by the Second Circuit":
This appeal deals with the constitutional right of intimate association. Although clearly recognized in a general way by the Supreme Court and in scholarly writings, all of its boundaries have not yet been fixed. We think it unnecessary for our purposes to attempt to fully remedy that lack. Like the wind that blows where it wills and can be heard, yet no one knows "from where it cometh and whither it goeth" John 3:8, this constitutional right is real despite the lack of exact knowledge regarding its derivation and contours.
The email had as its subject "best (worst?) opening paragraph in an opinion." Sorry, folks, but "How Appealing" is not launching that contest quite yet.
Posted at 14:34 by Howard Bashman



Ninth Circuit decides terrorism-related appeal: A divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today decided an appeal in which the majority opinion begins:
Among other issues, we must decide whether a federal district court may grant citizenship to resident aliens whose applications were rejected by the Immigration and Naturalization Service in part because of their past terrorist activities.
and concludes:
Finally, we stress that, unlike the dissent, we do not pass judgment on the wisdom of the INS's decision to initiate deportation proceedings based upon events that occurred twenty years ago. The applicants arranged for a bomb to be transported on a commercial airliner, and planned to detonate it in Philadelphia, with the potential of murdering between 2000 and 3000 people. On the other hand, the applicants by all accounts have lived exemplary lives and have become pillars of their communities since their release from prison. Whether the actions of their youth justify deportation under our immigration laws is a question for the political branches of government. Judicial sympathy only functions within prescribed parameters of the law.
You can access the opinion at this link. Circuit Judge Diarmuid F. O'Scannlain wrote the majority opinion, in which Circuit Judge Andrew J. Kleinfeld joined. Senior Circuit Judge Dorothy W. Nelson dissented.
Posted at 13:39 by Howard Bashman



Senate Judiciary Committee to vote this week on nomination of Dennis W. Shedd to serve on Fourth Circuit? That's what this anti-Shedd op-ed from today's edition of The Atlanta Journal-Constitution suggests.

Update: You can access here an Associated Press article from last Thursday entitled "NAACP, church, women's group oppose Shedd's nomination."
Posted at 11:43 by Howard Bashman



Tattoo you: Law Professor Jonathan Turley, in an op-ed published in today's Los Angeles Times, weighs in on the case from South Carolina in which Kenneth W. Starr is representing a tattoo artist who argues in a cert. petition now pending before the U.S. Supreme Court that his First Amendment rights are being unlawfully infringed.
Posted at 10:41 by Howard Bashman



Sunday, September 29, 2002
Would The Washington Post's plan for protecting wetlands pass constitutional muster? This past Friday, The Washington Post ran an editorial calling on Congress to pass strengthened wetlands protection legislation. The editorial explained that such legislation was needed in the aftermath of a U.S. Supreme Court ruling from 2001 that you can access here. An especially astute reader, who practices law in a State Attorney General's office in the Midwest, sent along these thoughts about the Post's editorial on the day of its publication:
In the "be careful what you wish for" category: Today's Washington Post editorial, about wetlands, suggests that the Army Corps and EPA are wrong to consider new regulations as a means to avoid the US Supreme Court's decision last year that invalidated the Corps' broad interpretation ("the migratory bird rule") of what constitutes a "navigable water" under the Clean Water Act. The Washington Post claims that the better approach would be for Congress simply to remove the requirement of the Clean Water Act limiting its application to "navigable waters." But considering that Chief Justice Rehnquist's majority opinion in SWANCC struck down the Army Corps' regulatory interpretation of "navigable waters" in part because it felt that the Corps' interpretation of "navigable waters" created "significant constitutional questions" under the Commerce Clause (i.e., undermining traditional local control over local water or land use), I'm not sure that the Washington Post is wise to support Congress's amending the law -- that might make the actual Clean Water Act, not just the regs, unconstitutional.
Thanks, astute reader, for drawing attention to this matter.
Posted at 23:42 by Howard Bashman



On Roe v. Wade and Michael W. McConnell: In an op-ed published last week in The Dallas Morning News, Terry Eastland, publisher of The Weekly Standard, had this to say.
Posted at 23:24 by Howard Bashman



In clerkship hiring process, Miguel Estrada was tough on conservatives, too: Writing on NRO's The Corner, Jonathan Adler has this report from an anonymous source of his own. While the information Adler puts forth does not fully debunk the charges that two anonymous liberal clerkship rejects have leveled against D.C. Circuit nominee Miguel A. Estrada, it's a start.

Update: Ha! The Corner's permalink to this item doesn't currently work. To access Adler's post until that problem is fixed, click here and then scroll down to the first entry (10:48 a.m.) on Sunday, September 29, 2002.
Posted at 23:08 by Howard Bashman



Horse country: Had a chance this afternoon to watch on tape a bit of Senator Edward M. Kennedy's speech last week to the American Constitution Society -- intended as the left's answer to The Federalist Society -- about the current state of the federal judicial nomination and confirmation process. Regardless of your opinion of Senator Kennedy, you must admit that he started off his speech with a good joke:
It's a privilege to be here tonight among friends. It isn't always that way. Not long ago, I was addressing a group, and shortly after I started speaking, a heckler in the audience jumped to his feet and shouted: "Senator Kennedy is a horse's rear end." I'm paraphrasing slightly. Right away, members of the audience rushed to my defense. They threw the heckler out, and told him never to come back. So I said to the chairman of the event, "I had no idea this was Kennedy country." And the chairman said, "It isn't. It's horse country."
You can access the full text of Senator Kennedy's remarks at this link.
Posted at 20:40 by Howard Bashman



"Tough-on-Crime Cases Top Supreme Court Fall Session": David G. Savage has this report in today's edition of The Los Angeles Times.
Posted at 09:11 by Howard Bashman



Judging the judicial nominees -- editorials from two leading newspapers contrast sharply with one another: Sunday's edition of The New York Times contains an editorial that calls on the Senate to reject the nomination of Michael W. McConnell to serve on the U.S. Court of Appeals for the Tenth Circuit. Sunday's edition of The Washington Post contains an editorial that calls on the Senate to approve the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. Previously, The Washington Post has editorialized in favor of McConnell's nomination, and The New York Times has, on its editorial page, taken a skeptical view of Estrada's nomination.
Posted at 00:28 by Howard Bashman



Saturday, September 28, 2002
In Sunday's New York Times: Sunday's edition of The New York Times contains an article by Tamar Lewin reporting on the aftermath of the U.S. Supreme Court's ruling last June that allowed more widespread suspicionless drug testing of high school students. You can access my original coverage of that ruling at this link. Tomorrow's Times also contains an article on the increasing prevalence of security cameras in society. The Christian Science Monitor published a similar article about security cameras this past Wednesday.
Posted at 23:06 by Howard Bashman



Tonight on C-SPAN's "America and the Courts": This week's installment of C-SPAN's fine program "America and the Courts," scheduled to air at 7 p.m. eastern time tonight, will feature Attorney General John Ashcroft's remarks from earlier in the week in favor of D.C. Circuit nominee Miguel A. Estrada and a speech entitled "The State of the Judiciary in America," which Senator Edward M. Kennedy delivered this week to the American Constitution Society. You can access a transcript of Senator Kennedy's speech at this link.
Posted at 10:40 by Howard Bashman



From tomorrow's New York Times Magazine: The Magazine section of tomorrow's New York Times contains a crash course in plea bargains and an interview with novelist Chuck Palahniuk, author of "Fight Club," whose latest novel was just released.
Posted at 09:50 by Howard Bashman



An update on the Iowa case in which prosecutors subpoenaed clinics' records of every woman who took pregnancy test between August 2001 and May 2002: Columnist Ellen Goodman, writing in The Boston Globe, provides this update.
Posted at 01:04 by Howard Bashman



Remember the Pledge of Allegiance case? This report from The Associated Press describes one recent development.
Posted at 00:55 by Howard Bashman



USDOJ files supplemental brief in Foreign Intelligence Surveillance Court of Review: You can access the supplemental brief that the U.S. Department of Justice filed in the Foreign Intelligence Surveillance Court of Review on Wednesday of this week at this link. Saturday's edition of The New York Times contains this article about the supplemental brief and the current status of the matter.
Posted at 00:50 by Howard Bashman



Friday, September 27, 2002
Readers respond to my recent "Not telling" post: On Monday of this week, in a post you can access here, I wrote:
Not telling: Today the U.S. Court of Appeals for the Eleventh Circuit decided a seemingly straightforward securities lawsuit by means of a nine paragraph opinion. Circuit Judge Susan H. Black was a member of the three-judge panel that decided the appeal. At the close of the majority opinion, the decision states: "BLACK, Circuit Judge, concurs in the result." And that's all the decision says about Judge Black's views of the case. Obviously, a judge concurs only in the result of an appeal if he or she disagrees with the majority opinion's reasoning. How and why Judge Black disagreed with the majority opinion's reasoning is unknowable. "This case is important enough for you to know that I don't fully agree but not important enough for you to know why" is what this type of "minute entry" has always indicated to me. Thankfully, these sort of "concurs in the result without opinion" are very rare in the federal appellate court system, but they are used more often in state appellate courts. Am I the only one who reacts negatively when a judge on an appellate court concurs in the result without opinion or dissents without explanation? I welcome your thoughts, whether you agree or disagree with my view, via email. Oh yeah, and feel free to provide reasons for your opinion.
The most interesting and, dare I say, clever response came from an attorney who works for a State Attorney General's Office in the Midwest. She wrote:
With regard to judges who either dissent or concur with a result without opinion:

I always assume that if there's no explanation given, it's because the explanation wouldn't be worth reading. And if it wouldn't be worth reading, I'm rather glad it's not given as I have enough other things to read these days.

If I were a judge, of course, I would want to write at least a brief opinion in these circumstances as I wouldn't want people to think me incapable of explaining my decision in a logical fashion. But if others are more comfortable appearing illogical in public, that is their choice. I'm more often concerned with the illogical things judges do write, than with the illogical things they don't.
Very well said. One of my favorite correspondents sends along these thoughtful remarks:
I looked at the recent 11th Circuit opinion you mentioned with some interest. I share your negative reaction to judges' not expressing their reasoning for the results they reach. In fact, I would make the stronger claim that giving reasons for decisions is an essential element of the "judicial Power of the United States" (though that's impossible to establish definitively on the basis of Constitutional exegesis). Law is, among other things, a discrete means of channeling political authority, and part of the way that authority is limited and directed to its proper ends is by articulating the ratio decidendi for each result. A legislator can vote yay or nay on the basis of what he had for breakfast, but a judge (qua judge) must explain the rationale behind the decision. Where rationales (even mistaken ones) are wholly absent, I don't think it is the peculiarly "judicial Power" that is being exercised.

(Let me say something about a slightly related point. I don't have a problem with unpublished or otherwise non-precedential opinions. I just think that judges should give opinions that explain---at length or briefly---the reasons for the decisions they make.)

In looking over this recent 11th Circuit opinion, I think I can speculate why Judge Black may have concurred without opinion. It seems to me that the ratio decidendi comes in paragraph four: "We find no fault in the court's reasoning or application of the law to the facts as pled." But note that the paragraph goes on to conclude with the statement, "We think it necessary, however, to say a few words about the plaintiffs' pleadings." It then goes on to criticize "shotgun" pleadings, and concludes by stating, "We do not focus on paragraph 30 because it is necessarily the fatal flaw in plaintiffs' second and third amended complaints, but rather because it is indicative of problems with the complaints as a whole and with most shotgun pleadings."

I know nothing about this case, but my superficial reading suggests that everything from the last sentence of paragraph four to the end of the opinion is mere dicta and not a part of the ratio decidendi. Judge Tjoflat more or less owns up to that in the final sentence I quoted above. All that needs to be said about this case is that the Circuit affirmed for the reasons given by the District Court. But the fact that they are going to publish this opinion suggests that Judge Tjoflat or Judge Wilson or both thought the dicta were important.

The bulk of the opinion being dicta may well be the reason that Judge Black concurred separately, though without opinion. She may have been satisfied with the statement in paragraph four, to the effect that the district court got it right, and we don't need to say much more. By concurring separately, she then disassociates herself from all the remaining extraneous material. I would have preferred, though, that she say as much (in one sentence or so).
The final quoteworthy email on this topic came from a lawyer who practices in Mississippi:
This sort of opinion has become a plague in the Mississippi Supreme Court. It was uncommon before 1990; it has become a constant on the weekly decision lists since. The weird variations in disagreements without opinions are even worse-- you will see votes that concur in part and dissent in part with no explanation whatsoever.

Last Thursday's hand down list had two. One was a case with normal opinions and a dissent (from one of the most consistent abusers of this practice):

>>Landmark Structures, Inc. v. The City Council for the City of Meridian, The City of Meridian and Caldwell Tanks, Inc. ; Lauderdale Circuit Court; LC Case #01-CV-071(R); Ruling: 09/12/2001; Larry Roberts; Majority Opinion: McRae, P.J. Disposition: Affirmed. Appellant taxed with costs of appeal. Votes: Smith, P.J., Waller, Cobb, Diaz, Carlson and Graves, JJ., Concur. Pittman, C.J., and Easley, J., Dissent Without Separate Written Opinion.<<

Then there was this one, relating to a short opinion denying reinstatement of a disbarred lawyer because he'd failed to comply with a condition the court had set (retaking the bar exam):

>>Emil, Gerald R., In the Matter of the Petition for Reinstatement to the Practice of Law of ; LC Case #94BA749; Ruling: 01/09/1997; Majority Opinion: Diaz, J. Disposition: Petition of Gerald R. Emil for Reinstatement or, Alternatively, for Termination of Suspension is denied. Gerald R. Emil taxed with costs of appeal. Votes: Pittman, C.J., Smith, P.J., Waller, Cobb, Easley, Carlson and Graves, JJ., Concur. McRae, P.J., Concurs in Result Only.<<

McRae does this all the time. What does it mean? I don't know. In the previous week, there was a McRae "dissent without written opinion" and the week before one where he "concurs in the result only." The week before that, "Easley, J., Concurs in Part and Dissents in Part Without Separate Written Opinion"!?! While these two justices do this sort of thing the most, I have seen it used by at least three others (making up a total of 4 of the sitting 9, plus one who has retired).

I looked at the last four weekly lists of cases, and each had one or more of these, with slightly more than two handfuls of cases on each.

This seems to me intellectual dishonesty; it allows these justices to not be responsible for the actual stated reasoning of an opinion. To the extent that stating a reason is a test for its soundness, they are defaulting on that test. Further, this is a court that can only be reached by cert and is therefore theoretically primarily in the business of explaining its decisions. They are defaulting on that responsibility, too.

I had thought this would make an interesting law journal article for the Miss. L.J., but it would be a lot of work and would have the effect of annoying a court I regularly appear before. So I haven't. It would be a good opportunity to give the Hart & Sachs LEGAL PROCESS materials a workout.
Thanks so much to everyone who took the time to write in on this important topic.
Posted at 23:49 by Howard Bashman



Awaiting the imminent kick-off of the October 2002 Term: The U.S. Supreme Court kicks-off its October 2002 Term behind the scenes with its first conference to consider pending petitions for writ of certiorari on Monday, September 30, 2002. You can access the Court's official calendar at this link. Last year the Court issued orders granting cert. in a bunch of cases on the day after the initial conference got underway, so it is possible that a list of grants could issue as early as Tuesday, October 1, 2002. Last week law.com's Supreme Court correspondent, Tony Mauro, with a large assist from Tom Goldstein, listed the cases to be conferenced next week in which cert. is most likely to be granted. You can access that article here. Tonight law.com has posted Tony's newest article, which among other things describes some of the most interesting cases that the Court already has agreed to review on the merits in the upcoming Term.
Posted at 23:30 by Howard Bashman



Your most humble host, quoted on law.com: Reporter Jonathan Ringel has an excellent article in Monday's edition of The Fulton County (Georgia) Daily Report about a very significant prisoner civil rights ruling that the Eleventh Circuit issued earlier this week. As an added bonus, the article contains a quote from me and also mentions this blog. The article is prominently featured this weekend throughout the entire law.com network of Web sites, so be sure to take a look. You can access my earlier coverage of the Eleventh Circuit's ruling, and links to the Fourth Circuit opinions discussed in Ringel's article, by clicking here.

Anyone interested in learning more about the current state of U.S. Supreme Court law on the boundary between habeas corpus actions and prisoner civil rights claims can take a look at this pro bono brief (starting at page 19 of the pdf file, which is page 14 of the brief itself) involving that issue which I filed one year ago in the U.S. Court of Appeals for the Third Circuit. (The Third Circuit ruled in favor of my pro bono client, reversing the dismissal of a prisoner civil rights suit by then-Third Circuit nominee (and now recently seated Third Circuit Judge) D. Brooks Smith.)
Posted at 23:12 by Howard Bashman



It was only a matter of time: Alice W. reports that Circuit Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit appears in an article in the October 2002 issue of Cosmopolitan magazine (see page 3). The article, by the way, is entitled "How to Seek Pleasure in Public Places."
Posted at 20:16 by Howard Bashman



White House Counsel Alberto R. Gonzales "Rips Senate on Judge Picks": The Associated Press has this report on his speech today to law students at SMU. The article states that Gonzales even went so far as to question whether he would accept a judicial nomination (to the U.S. Supreme Court, perhaps?) if one were offered by President Bush.
Posted at 20:08 by Howard Bashman



Shameless self, and non-self, promotion: Jonathan Adler, writing in NRO's The Corner, has several posts on yesterday's Senate Judiciary Committee hearing. Start here and scroll down for more.

Meanwhile, thanks to William Sulik, this other blogger, and Denise Howell for their recent very kind words about "How Appealing."
Posted at 16:18 by Howard Bashman



Let's go to the videotape: Courtesy of C-SPAN, you can access a video feed of yesterday's Senate Judiciary Committee hearing for D.C. Circuit nominee Miguel A. Estrada via this link.
Posted at 14:47 by Howard Bashman



Divided Ninth Circuit panel rejects California cities' challenge to census numbers: A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today ruled 2-1 that the U.S. Department of Commerce did not have a statutory duty to adjust census figures statistically for redistricting purposes. You can access the ruling here. Senior Circuit Judge Warren J. Ferguson wrote the majority opinion, in which Circuit Judge Susan P. Graber joined. Circuit Judge Stephen Reinhardt dissented.

Update: In a post dated October 2, 2002, Fritz Schranck of the Sneaking Suspicions blog takes a detailed look at the Ninth Circuit's ruling.
Posted at 13:51 by Howard Bashman



Setting the record straight on Justice Clarence Thomas: While Kaimi Wenger, over on his blog, has provided some interesting commentary on The Nation article that plagued Miguel A. Estrada during yesterday's confirmation hearing, in the final paragraph of his post here Kaimi expressed what I view to be unfair criticism of Justice Clarence Thomas. And I'm not alone. A law professor who clerked for another Justice has copied me on this email that he sent to Kaimi:
Greetings -- thanks for the new blog.

A question: You say "I don't think Thomas has shown himself to be a particularly good Justice, and if Estrada turns out to be Thomas-like, I think a court would be the worse for it. Even most conservatives don't really like Thomas. (Sure, they tolerate him because he votes right, but don't tell me they wouldn't generally prefer an opinion from Scalia or Kennedy, or maybe Rehnquist.)"

With all due respect, I think you're way off the mark here. The "conservative" legal intellectuals I know -- and I know a lot of them -- have more respect for CT's reasoning and work than, say, AMK's. Not even close. And while I am a big fan of the Chief (I worked for him a few years ago), I think CT is actually a lot like the early Rehnquist.

So, keep up the good work, but give CT's work another chance! The "he just votes right" canard was put to rest long ago. See CT in, e.g., Lopez, Camps Owatonna, Mitchell, Saenz, etc., etc.
Stuart Buck expresses similar thoughts in a post here.
Posted at 12:00 by Howard Bashman



Even more First Amendment vs. "true threat" rulings have issued this week: I mentioned the Eighth Circuit's en banc ruling from Wednesday here. The Supreme Court of Pennsylvania on Wednesday resolved a case presenting some of the same issues, and you can access the majority opinion here and concurring opinions here and here. Yesterday a divided Fourth Circuit panel added this ruling to the mix. What do all of these cases have in common? A not very pleasant set of facts.
Posted at 11:49 by Howard Bashman



The LA Times profiles a first-year UCLA law student who's both "affirmative and active": You can access the article here. But, in the words of Denise Howell, does this law student have a blog?
Posted at 11:42 by Howard Bashman



The day after the Estrada hearing: Byron York, writing at National Review Online, offers an insightful summary of yesterday's Senate Judiciary Committee hearing for D.C. Circuit nominee Miguel A. Estrada. York's final three paragraphs should not be missed. Elsewhere, in today's Los Angeles Times David Savage reports that the Estrada hearing was "surprisingly low-key." Hmmm, perhaps he missed the afternoon session?
Posted at 11:33 by Howard Bashman



Eugene Volokh gets inside the mind of a madman: You can access Eugene's essay published this morning on National Review Online via this link.
Posted at 11:31 by Howard Bashman



Divided Sixth Circuit panel reinstates Ford's claims against General Motors: This is the type of case an appellate court is bound to get when its jurisdiction includes the Motor City. You can access today's Sixth Circuit ruling at this link.
Posted at 11:28 by Howard Bashman



In Friday's newspapers: The Washington Post contains an editorial that closely echos my comments from Wednesday on the Justice Department's unfortunate press release about the Vermont federal trial court's ruling that declared the federal death penalty unconstitutional. Elsewhere in the Post, Charles Lane has this report on yesterday's Senate Judiciary Committee hearing for D.C. Circuit nominee Miguel A. Estrada. Astonishingly, the Post has also interviewed the two disgruntled individuals who blame Estrada for their having been rejected for a clerkship with Justice Anthony M. Kennedy, and the article states that "both people said their quotes in the Nation were broadly accurate. But they insisted on remaining anonymous." I talk with Charles Lane from time to time; maybe he'll tell me who the two rejected clerkship candidates are if I promise to keep the secret -- but I doubt it.

Tomorrow's edition of The New York Times contains this article on the Estrada hearing. The Times also contains a detailed report about the classified documents that federal government lawyers mistakenly provided to Zacarias Moussaoui. Both the Times and the Post cover yesterday's release of a letter that the U.S. Court of Appeals for the Third Circuit ordered unsealed over the objections of Senator Robert G. Torricelli. You can access the Times article here and the Post article here.
Posted at 00:56 by Howard Bashman



Thursday, September 26, 2002
Coming soon to a newsstand near you? Well, if you live in or around Atlanta, Georgia, the answer is probably yes. Today a reporter for the Fulton County (Georgia) Daily Report, Atlanta's newspaper for lawyers, sought my comments on this very interesting Eleventh Circuit ruling from Monday, which I first mentioned here. An article on that ruling is due to appear in the Daily Report either tomorrow or Monday, Sept. 30th, so I'm counting on my Atlanta-based readers to keep me posted. Thanks, y'all!
Posted at 22:54 by Howard Bashman



"Embattled Judicial Nominee Faces Grilling": That's the title of a wrap-up from Reuters of today's Senate Judiciary Committee hearing for D.C. Circuit nominee Miguel A. Estrada. Elsewhere, blogger Kaimi Wenger has some interesting musings about the two anonymous disgruntled individuals who blame Estrada for their not being hired to clerk for Justice Anthony M. Kennedy.
Posted at 22:32 by Howard Bashman



Hello, Heather! Heather Havrilesky's interview in LA Weekly is too funny, and too true.
Posted at 20:58 by Howard Bashman



Third Circuit orders immediate release of Torricelli-related memo that press sought to access: As I predicted here early yesterday morning, the U.S. Court of Appeals for the Third Circuit this afternoon ordered the immediate release of a sentencing memo, from the criminal case against David Chang, that Senator Robert G. Torricelli had asked the court to keep out of the hands of the press and public. The Associated Press offers this report on what the memo reveals. You can access the Third Circuit's original ruling in the matter at this link.
Posted at 20:49 by Howard Bashman



Dahlia Lithwick accuses John Ashcroft of duplicity on gun rights: You can access her latest Slate essay at this link. Hmmm, why didn't I think of that (or did I)?
Posted at 20:35 by Howard Bashman



Miguel A. Estrada's portion of today's Senate Judiciary Committee hearing has just concluded: Which means that, at 4:54 p.m., five federal district court nominees finally have the pleasure of sitting at the microphones before the committee. Whether Estrada will be able to obtain one Democratic vote on the committee remains in question. Senator Charles E. Schumer (D-NY), who chaired the hearing, engaged in some very contentious questioning of Estrada, who managed to keep his cool even though some Republicans on the committee said that they found Senator Schumer's conduct to be objectionable.
Posted at 16:54 by Howard Bashman



Yes, no, maybe so: That pithy saying, which my son says he learned last year from his first grade teacher, accurately describes the results that federal appellate courts have reached concerning whether a State's sovereign immunity and the Eleventh Amendment to the U.S. Constitution bar claims against a State arising under Title II of the Americans with Disabilities Act. Today a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit split 2-1 on this issue. The majority concluded that Congress acted unconstitutionally when it subjected States to claims arising under Title II of the ADA. You can access the Fourth Circuit's ruling at this link. Last month, a divided three-judge panel of the U.S. Court of Appeals for the First Circuit reached the opposite result and held that Title II of the ADA may lawfully be applied to States. As I noted last month in describing the First Circuit's ruling, a circuit split has existed on this issue for some time now.
Posted at 16:27 by Howard Bashman



On National Review Online: Byron York has a column that describes the Democrats' opposition to Miguel A. Estrada as "A Battle About Nothing." And guest commentator Robert Alt has a column which asserts that it is Estrada's main critic who is outside the mainstream.
Posted at 15:04 by Howard Bashman



Maybe he called her "chicken"? Today Circuit Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit issued a very interesting opinion on behalf of a three-judge panel, the second paragraph of which begins:
The conspirators operated adjacent bars that offered striptease shows. During intervals between the shows, the striptease dancers would sit with the patrons of the bars, and if the patrons wanted would have sex with them, either in the basement beneath one of the bars or in the motel in which the other bar was located, for a price. Thus the dancers doubled as prostitutes. One of the bars employed a bouncer named Dave Brown who was prone to violence. Once, when a customer called one of the prostitutes a foul name (spelled "fowl" in the transcript), Brown "bashed [the customer's] head into the jukebox and threw him out the door."
You can access the entire opinion at this link.
Posted at 14:44 by Howard Bashman



An email regarding Miguel Estrada: Attorney Jennifer Jaff, who practices law in Connecticut, has sent along the following email:
Although I would locate myself somewhere to the left of Democrat on the political spectrum, Miguel promoted my candidacy at the SG's office. That makes me think he's a fair-minded person since my politics are all over my resume. He certainly didn't judge me by my politics, and I think it's horrendous that people want to do that to him.

I've been interviewed by the Alliance for Justice (which told me that I was the 5th woman to say this about him), and wrote letters to the members of the Hispanic Caucus and all the Dems on the Committee. Makes you wonder -- why don't they publicize anything positive? This is not how we should be selecting judges, in my view.
Meanwhile, blogger/law professor Jeff Cooper has concluded that Estrada should not be confirmed.
Posted at 14:23 by Howard Bashman



A mid-hearing Miguel Estrada update: The afternoon session of the Senate Judiciary Committee's hearing on Miguel A. Estrada's nomination to serve on the U.S. Court of Appeals for the D.C. Circuit has just begun. William Sulik, over on his Blithering Idiot blog, sets forth his views on this morning's session.
Posted at 14:19 by Howard Bashman



Today's Wall Street Journal editorial in support of Miguel A. Estrada: You can access the editorial -- which asks "Will a 'Hispanic Clarence Thomas' face a Senate star chamber?" -- at this link. Meanwhile, as I had expected, the Senate Judiciary Committee's questioning of D.C. Circuit nominee Estrada did not get underway until about 11:10 a.m. this morning.
Posted at 11:38 by Howard Bashman



This morning's Senate Judiciary Committee hearing to consider D.C. Circuit nominee Miguel A. Estrada: The Senate Judiciary Committee is scheduled to convene at 10 a.m. eastern time today to hold a hearing to consider the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. You can access a live audio feed of the hearing via this link.

White House Counsel Alberto R. Gonzales has an op-ed in today's Washington Post in support of Estrada's nomination. And, The Associated Press offers this preview of today's hearing.
Posted at 08:34 by Howard Bashman



In Thursday's newspapers: The New York Times contains an op-ed from columnist Bob Herbert on the issue of judicial nominations. Relatedly, the paper publishes a letter to the editor from Senator Orrin G. Hatch responding to yesterday's editorial concerning Miguel A. Estrada's nomination to serve on the U.S. Court of Appeals for the D.C. Circuit. The Times also reports that Senior District Judge Milton Pollack of the U.S. District Court for the Southern District of New York is still getting the job done on the eve of turning ninety-six years old. Now that's what I call life tenure!

In news relating to the war on terror, The Washington Post reports here that "The Justice Department announced last night that it would comply with a federal court order and grant an open detention hearing to a Muslim activist who has been in custody for nine months because of suspected links to terrorism." And, The Christian Science Monitor contains an article entitled "Terror on trial: Citizen detentions in the spotlight -- The indefinite detention of two American citizens raises far-ranging legal rights issues."
Posted at 00:25 by Howard Bashman



Wednesday, September 25, 2002
Eugene Volokh on NPR's Talk of the Nation: You can access an audio feed of Eugene Volokh's appearance on NPR's Talk of the Nation program yesterday at this link. The program addressed the public's attitudes toward the First Amendment. Eugene does his usual wonderful job of speaking eruditely and quickly, but his persistence in the face of a segment break surprisingly leads NPR to turn off his microphone in the middle of a sentence at 14 minutes and 20 seconds into the program. Hey, that's not very nice (especially on a program about free speech)! Next thing you know, a city in Nebraska will tell him "pffft!" (Oops, that's already happened too.)
Posted at 23:51 by Howard Bashman



What's a trial judge to do? A colleague from down the hall (who humorously pretends to be considering whether to launch a blog by that title) had some interesting remarks today about yesterday's splintered Ninth Circuit en banc ruling concerning whether a homosexual man who was objecting to unwelcome physical contact from male co-workers stated a Title VII claim.

The appeal was decided by an eleven-judge en banc panel of the Ninth Circuit. Five judges -- one shy of a majority -- joined in the lead opinion. Three judges, including one who joined the lead opinion, joined in an opinion concurring in the judgment. The remaining four judges dissented from both the lead opinion and the opinion concurring in the judgment. The lead opinion, in which five judges joined, concluded that the plaintiff could pursue a valid Title VII claim under what I will call "theory number one." The opinion concurring in the judgment, in which three judges joined (including one judge who also joined in the lead opinion), concluded that the plaintiff could pursue a valid Title VII claim under a completely different theory, which I will call "theory number two." And, the dissenting four judges rejected theories one and two.

Thus, theory number one had the support of five judges on the en banc panel and was opposed by six judges. Theory number two had the support of three judges on the en banc panel and was opposed by a majority of the eleven judges on that panel. All that theory one and theory two have in common is the shared result that the plaintiff should have the opportunity to pursue his claim further in the trial court.

Yet how is the trial court to proceed on remand? If the plaintiff on remand successfully proves only theory one or only theory two, does the plaintiff lose, because neither theory alone commanded support from a majority of the Ninth Circuit's eleven-judge en banc panel? And, thus, must the plaintiff prevail on both theories one and two to win in the trial court? If you have any insights, feel free to comment via email.
Posted at 23:32 by Howard Bashman



Sometimes a correction only makes things worse: The Associated Press has issued a correction tonight of an earlier AP article (which admittedly did contain a whopping inaccuracy) reporting on yesterday's ruling by a Vermont federal trial court striking down the federal death penalty as unconstitutional. (You can access my coverage of that ruling, which remains correct although perhaps a bit indecipherable toward the very end, at this link.)

The AP's correction states, in full:
MONTPELIER, Vt. -- In a Sept. 24 story about a ruling declaring the federal death penalty law unconstitutional, The Associated Press erroneously reported that U.S. District Judge William Sessions cited two of the law's provisions as the reason for his decision. Sessions did not find unconstitutional the part of the law that gives grand juries a hand in death penalty decisions. He ruled the law was unconstitutional because the sentencing phase denies defendants the right to confront and cross-examine witnesses.
This correction, however, itself is inaccurate in two respects. The second to last sentence is misleading when it states that "Sessions did not find unconstitutional the part of the law that gives grand juries a hand in death penalty decisions." You see, the argument against the federal death penalty law is that it does not give grand juries enough of a role in the process, because the law does not require that the grand jury's indictment specify the aggravating circumstances that allow the imposition of the death penalty. Yesterday, Chief Judge Sessions ruled that the federal death penalty statute is not unconstitutional even though it doesn't expressly require a grand jury to specify the requisite aggravating circumstances in the indictment so long as the grand jury issues an indictment that nevertheless does specify those aggravating circumstances.

The final sentence of The AP's correction is misleading due to incompleteness. While Chief Judge Sessions did rely on the two reasons specified in that sentence in striking down the law, he also held that the federal death penalty law violates a defendant's due process rights by failing to make the Federal Rules of Evidence applicable to the sentencing phase of the trial. Now we can await The AP's correction of its correction, correct?
Posted at 22:35 by Howard Bashman



Big tobacco appeals from big liability verdict: The AP has this report from Florida.
Posted at 22:28 by Howard Bashman



"Bush Slams Dems on Judicial Nominees": The Associated Press has this report online tonight. Elsewhere, in press release-land, The Committee for Justice has this to say in support of Miguel A. Estrada's nomination to serve on the U.S. Court of Appeals for the D.C. Circuit, while People For the American Way has this to say in opposition.
Posted at 22:25 by Howard Bashman



The witness list for tomorrow's Senate Judiciary Committee hearing is now available online: You can access it here. If I had to guess, the testimony of D.C. Circuit nominee Miguel A. Estrada won't be getting underway much before 11 a.m.
Posted at 16:36 by Howard Bashman



Fifth Circuit closed due to inclement weather: The Web site of the U.S. Court of Appeals for the Fifth Circuit reports that the court will be closed today and tomorrow due to Hurricane Isidore. You can access the notice at this link.
Posted at 16:24 by Howard Bashman



Protected free speech or punishable true threat? En banc Eighth Circuit splits 6-4 over the answer: Today the en banc U.S. Court of Appeals for the Eighth Circuit issued a 6-4 ruling in a very interesting case. The majority opinion begins:
We granted en banc review to determine whether a school board ran afoul of a student's free speech rights when it expelled him for an offensive and vulgar letter that the student had prepared at home. The expelled student described in the letter how he would rape, sodomize, and murder a female classmate who had previously broken up with him. After a bench trial, the district court ordered the expelled student reinstated, concluding that the letter was not a "true threat" and that it therefore was protected speech under the First Amendment. A divided panel of our court affirmed the district court's decision. See Doe v. Pulaski County Special Sch. Dist., 263 F.3d 833 (8th Cir. 2001). We vacated the panel decision, ordered en banc rehearing, and now hold that the school board did not violate the student's First Amendment rights when it expelled him.
You can access the en banc decision at this link. You can access the earlier, vacated panel decision here. The same question presented here -- free speech versus true threat -- was at issue in a 6-5 Ninth Circuit en banc decision issued in May 2002 that I previously examined in detail here and here.

Update: An attorney who practices in Michigan emails to say that today's Eighth Circuit ruling reminds him of a criminal case that reached the U.S. Court of Appeals for the Sixth Circuit approximately five years ago, and he provides this link to more information about that case.
Posted at 16:19 by Howard Bashman



Even more about the federal judicial confirmation process: This Monday's edition of The Pittsburgh Post-Gazette contained a sensible editorial entitled "More courtly conversation -- Signs of a truce on judicial confirmations." Meanwhile, the world's most popular blogger argues here and here that competence, rather than ideology, should be the Senate's main focus in deciding which judicial nominees to confirm.
Posted at 14:38 by Howard Bashman



USDOJ press release on yesterday's death penalty ruling misses the mark: The U.S. Department of Justice yesterday issued a press release that denounced the ruling earlier in the day by Chief District Judge William K. Sessions III of the U.S. District Court for the District of Vermont that the federal death penalty is unconstitutional. The DOJ's press release states, in full:
STATEMENT OF BARBARA COMSTOCK, DIRECTOR OF PUBLIC AFFAIRS, REGARDING JUDGE SESSIONS' OPINION ON THE FEDERAL DEATH PENALTY:

"Today's decision underscores the importance of confirming President Bush's nominees to the federal bench -- well-qualified men and women who will apply the laws that Congress has passed in accordance with Supreme Court precedent.

"In our system of government, it is the legislature elected by the American people which determines the proper punishment for federal crimes, not lone members of the judiciary. Congress passed the Federal Death Penalty Act to save lives, and the Supreme Court of the United States has repeatedly said the death penalty does not violate the Constitution. Judge Sessions' decision to the contrary is under review."
I have essentially three qualms with the press release. First, it strikes me as odd that a denunciation of Chief Judge Sessions' ruling would at its outset focus on the desire to confirm President Bush's judicial nominees. Yes, Judge Sessions was a Clinton appointee, but his ruling (which I discussed at length here in a post made last night) is not so far outside the mainstream to qualify as a decision that no Bush judicial nominee could ever accept.

Second, the statement that "lone members of the judiciary" do not "determine[] the proper punishment for crimes" borders on the ludicrous. True, legislatures set ranges of punishment and decide, in the first instance, when the death penalty is available as punishment for a crime. But, judges -- and especially lone federal district judges -- then decide what sentence to impose, including the precise amount of prison time a convicted defendant must serve from within a range of available alternatives. Thereafter, judges examine and often re-examine whether the sentence is proper and, particularly in a death penalty case, whether the sentence was imposed using lawful procedures for a crime that merits that punishment.

Third, the final two sentences of the press release suggest that whoever drafted the release did not spend much time reviewing Chief Judge Sessions' ruling. Unlike U.S. District Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York, who ruled in early July 2002 that the federal death penalty is incurably unconstitutional, Chief Judge Sessions identified a relatively narrow procedural flaw that, once repaired, would eliminate the basis on which he struck down the federal death penalty law. Thus, to argue that the U.S. Supreme Court has repeatedly held that the death penalty does not violate the Constitution, while true, does nothing to rebut the narrow procedural flaw that Chief Judge Sessions identified, especially since Supreme Court has never directly addressed that matter.

Accordingly, while I can sympathize with the Justice Department's frustration over the judicial confirmation imbroglio, and while I can understand the department's skepticism of any ruling that invalidates the federal death penalty, yesterday's press release nevertheless strikes me as a bit of an overreaction. (Link to press release via Jurist.)
Posted at 13:43 by Howard Bashman



A recent former D.C. Circuit clerk weighs in on the Estrada battle: Blogger and recent former D.C. Circuit law clerk Stuart Buck shares his insightful views on efforts to derail the confirmation of D.C. Circuit nominee Miguel A. Estrada. Elsewhere, a brand new blogger reviews with a skeptical yet amusing eye Jack Newfield's recent article in The Nation entitled "The Right's Judicial Juggernaut." And, finally for now, blogger Mark A.R. Kleiman, a professor of policy studies at UCLA, calls on the Senate Judiciary Committee to reject Estrada's nomination, although Kleiman's post (which mentions the Estrada nomination in its final sentence) provides no explanation of why he is opposed to the nomination.
Posted at 12:09 by Howard Bashman



News and press coverage of D. Brooks Smith's Third Circuit investiture: My most reliable and enterprising source of D. Brooks Smith-related news attended Judge Smith's investiture into the U.S. Court of Appeals for the Third Circuit on Monday of this week and this morning sends along the following email:
On Monday (Sept. 23), I attended the investiture of Judge Smith as a United States Circuit Judge, so I can confirm the fact that he has become a United States Circuit Judge. The Pittsburgh Post-Gazette apparently did not run an article reporting on the ceremony, but the front page of yesterday's paper included a photograph of Judge Smith donning his robe. Senator Specter, Lt. Gov./Senator Jubelirer, and former Governor Thornburgh, among others, spoke at the ceremony

I scouted around and managed to find this report from the Johnstown Tribune-Democrat.

I think there was a reporter from the Altoona Mirror at the ceremony as well, but I haven't been able to locate a story from that paper on the web.
The first several paragraphs of the Tribune-Democrat article are not to be missed:
D. Brooks Smith, the only federal judge Johnstown has ever known, officially became the newest jurist on the 3rd Circuit Court of Appeals yesterday, ending a grueling nominating process that attacked his character and credibility.

Finally responding to the harsh criticism, Smith said he hoped "being an appellate judge is a damn site more satisfying than becoming one."

Smith, 50, of Altoona, a former Blair County prosecutor and judge, had come under fire from special interest groups and some Democrats in the Senate who challenged his conservation judicial record, federalist tendencies and ethics for taking what were described as "junkets" to judicial conferences.

He pledged yesterday to set aside personal ideology in deciding cases.

"There is no master plan, no hidden agenda, no man behind the curtain," said Smith, who served as Johnstown's first and only district judge for the past 14 years. "There should be no overarching ideology that compels a good judge to make a decision.

"Good judges must always remember that real people are affected by the decisions they reach."
As someone who supported Judge Smith's nomination to the Third Circuit (even while obtaining the reversal of his dismissal of a prisoner civil rights complaint in a pro bono appeal that the Third Circuit asked me to handle), I am very pleased that he has finally joined that appellate court.
Posted at 09:46 by Howard Bashman



Must be some memo: According to this report from The Associated Press, attorneys for Senator Robert G. Torricelli (D-NJ) have asked the U.S. Court of Appeals for the Third Circuit to bar a federal district court from complying with the Third Circuit's recent ruling ordering release to the press of a sentencing memo in the criminal case against David Chang. There is absolutely no reason to think that Senator Torricelli could obtain reversal of the Third Circuit panel's ruling either from the en banc Third Circuit or the U.S. Supreme Court, which leads me to wonder why the panel didn't originally order the immediate issuance of its mandate, thereby requiring the district court to disclose the sentencing memo immediately. This could prove interesting.
Posted at 00:54 by Howard Bashman



In Wednesday's newspapers: The New York Times contains what is sure to be a controversial editorial calling for the release of "memorandums [D.C. Circuit nominee Miguel A. Estrada] wrote while working for the solicitor general's office." Here's why the Times's request is misguided. Elsewhere, Linda Greenhouse reports on the other big news to come from yesterday's meeting of the U.S. Judicial Conference (click here to access my earlier report on other developments there). Adam Liptak chronicles yesterday's splintered en banc Ninth Circuit ruling involving homosexual harassment and Title VII (more links here). The Times also contains an article on yesterday's ruling from Vermont striking down the federal death penalty (my coverage is here and here). Finally, The Times reports that legal heavyweights will decide September 11th Fund appeals.

The Washington Post contains an article that begins, "The Congressional Hispanic Caucus, composed entirely of House Democrats, plans to announce today that it opposes the nomination of Miguel Estrada to a federal appeals court, deepening an already wide partisan chasm over the nomination." The Post also contains an article reporting that compensation remains elusive for asbestos victims.

Last but not least, The Christian Science Monitor explains here that you shouldn't expect to enjoy any privacy in public places.
Posted at 00:19 by Howard Bashman



Tuesday, September 24, 2002
It appears that D. Brooks Smith has now officially joined the Third Circuit: As noted in a post you can access here, D. Brooks Smith was due to be sworn into service on the U.S. Court of Appeals for the Third Circuit yesterday. Although the Third Circuit's Web site as of this moment doesn't note his arrival, the Web site of the U.S. District Court for the Western District of Pennsylvania does bear the name of a new Chief Judge who has succeeded Judge Smith in that post.
Posted at 23:39 by Howard Bashman



Remember U.S. Supreme Court Justice William Blackmun? Me neither. law.com reprints this article from The National Law Journal noting the twenty-fifth anniversary of Bates v. State Bar of Arizona, a blockbuster case that allowed attorneys to advertise. Unfortunately, the article says that the majority opinion in Bates was written by U.S. Supreme Court Justice "William Blackmun." Seems that his first name was Harry the last time that I checked.
Posted at 23:23 by Howard Bashman



Two differing judicial views on why the federal death penalty is unconstitutional: Today's ruling by Chief District Judge William K. Sessions III of the U.S. District Court for the District of Vermont that the federal death penalty is unconstitutional differs in its reasoning -- but not its result -- from the July 1, 2002 ruling of District Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York.

As I explained here on July 1st in my detailed analysis of Judge Rakoff's ruling, he struck down the federal death penalty law because he concluded that allowing the federal death penalty to be applied will foreseeably result in the executions of numerous innocent people. Chief Judge Sessions' reasoning for declaring the federal death penalty unconstitutional was much narrower and, dare I say, nuanced. Today's opinion notes that the federal death penalty statute:
provides that information relevant to the sentence, including any mitigating or aggravating factor, "is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury."
This broad admissibility of information at the penalty stage, without regard to the normal rules of evidence, confrontation, and cross-examination that govern the guilt aspect of the trial, causes the Federal death penalty law to be unconstitutional, Chief Judge Sessions ruled:
The Court concludes that the [Federal Death Penalty Act], which bases a finding of eligibility for imposition of the death penalty on information that is not subject to the Sixth Amendment's guarantees of confrontation and cross-examination, nor to rules of evidentiary admissibility guaranteed by the Due Process Clause to factfinding involving offense elements, is unconstitutional.
It would thus be quite easy for Congress to fix the flaw identified in today's opinion, or even for a court to extend the normal rules governing admissibility of evidence, confrontation, and cross-examination to the penalty phase (although Chief Judge Sessions concluded that it would be improper for a court to judicially remedy the statute in that manner). The flaws identified in Judge Rakoff's ruling, by contrast, are not so easily fixed. If no death penalty may lawfully be enforced so long as it is even theoretically possible for an innocent person to receive it, then no death penalty ever will be possible.

All of this may be causing some of you to ask, "How does this affect me, Al Franken?" (And here's another SNL Weekend Update transcript featuring Al Franken from around the time when Robert H. Bork's nomination to the Supreme Court was pending.) Well, that's difficult to say, but today's ruling contains some good news and some bad news for accused twentieth hijacker Zacarias Moussaoui. The good news, obviously, is that Chief Judge Sessions ruled that the federal death penalty is unconstitutional. The bad news is that Chief Judge Sessions rejected the argument that the prosecution can't remedy the statute's lack of a requirement that aggravating circumstances be charged in the grand jury indictment by having a grand jury issue a superseding indictment that nevertheless charges the aggravating circumstances. (For all of you who don't understand what the heck the previous sentence means, here's one more SNL Weekend Update transcript to enjoy.)

Update: law.com has this report, which reaches essentially the same conclusion (although it contains no links to SNL Weekend Update transcripts).
Posted at 22:15 by Howard Bashman



Thanks! Thanks to all who have already emailed in response to my request for reader input contained in my post from last night entitled "Not Telling." I will be posting here this Friday a bunch of very thoughtful reader responses that I have already received to that post; thus, if you too were hoping to respond, you still have time to do so.
Posted at 21:43 by Howard Bashman



Eleventh Circuit affirms $9 million judgment against Ford Motor Corporation to family of youth who died in Ford Explorer crash: You can access the ruling, which the U.S. Court of Appeals for the Eleventh Circuit issued today, at this link.
Posted at 21:39 by Howard Bashman



U.S. Judicial Conference asks Congress to authorize ten new appellate judgeships: The First Circuit would get one temporary judgeship, the Second Circuit would get two permanent judgeships, the Sixth Circuit would get two permanent judgeships (but, of course, the Senate would never allow them to be filled), and the Ninth Circuit would get two permanent and three temporary judgeships. You can access the Judicial Conference's press release issued today at this link. (Link to press release via Jurist.)

What is a temporary judgeship? In a circuit that has no temporary judgeships, when a judge in regular active service takes senior status, resigns from the judiciary, or dies, a vacancy on the court is created for the President to fill with the advice and consent of the Senate. If the circuit has a temporary judgeship, a specified number of years (I'm not precisely sure how many, although I think the answer is five, six, or seven) after the judgeship is created, the next event that would otherwise give rise to a judicial vacancy on the court (i.e., a judge in regular active service takes senior status, resigns, or dies) does not create a vacancy to be filled by the President.
Posted at 21:08 by Howard Bashman



Second district judge within Second Circuit declares federal death penalty unconstitutional: A second federal district judge based within the jurisdiction of the U.S. Court of Appeals for the Second Circuit has declared the federal death penalty unconstitutional. You can access today's ruling from Chief District Judge William K. Sessions III of the U.S. District Court for the District of Vermont at this link. Chief Judge Sessions joins fellow Clinton appointee Jed S. Rakoff of the U.S. District Court for the Southern District of New York in declaring the federal death penalty unconstitutional. You can access my detailed analysis of Judge Rakoff's ruling at this link.
Posted at 16:32 by Howard Bashman



Text of the jury nullification constitutional amendment under consideration in South Dakota: In a post here last Saturday night, I pointed to Adam Liptak's article in this past Sunday's New York Times on South Dakota's proposed constitutional amendment that, if approved, would cause jurors in state court criminal trials there to be expressly instructed about the option of jury nullification. Thanks to the never-ending wonders of the Internet, I can now present you with the actual text of the amendment (with the proposed new language underlined and the language to be deleted struck-through):
That Article VI, section 7 of the Constitution of the State of South Dakota, be amended to read as follows:

Section 7. In all criminal prosecutions the accused shall have the right to defend in person and by counsel; to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face; to have compulsory process served for obtaining witnesses in his behalf; and to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed; and to argue the merits, validity, and applicability of the law, including the sentencing laws.
An explanation of the amendment from South Dakota's Attorney General states merely, "The Constitution currently guarantees certain rights to a person accused of a crime. Amendment A would amend the Constitution to state that a criminal defendant may argue the merits, validity, and applicability of the law, including sentencing laws." A more detailed and interesting statement of arguments for and against this controversial jury nullification amendment can be found at this link.
Posted at 15:18 by Howard Bashman



Senator Hatch's remarks at today's hearing about the D.C. Circuit: I thought that Senator Orrin G. Hatch had some very thoughtful things to say in his opening remarks at today's Senate Judiciary Committee subcomittee hearing about the D.C. Circuit. You can access his remarks in written form at this link.

Update: Law bloggers Jeff Cooper and Sam Heldman don't exactly share my view of Senator Hatch's remarks.
Posted at 14:55 by Howard Bashman



Architect of the law: According to this report from The Associated Press, Justice Anthony M. Kennedy "dedicated the latest creation from architect Frank Gehry, the Loyola Law School's Albert H. Girardi Advocacy Center," and said that his profession and Gehry's are similar. You can see a depiction of the building at this link. Hmm, I was actually hoping to see something that looked more like this.

Update: A California-based reader emails:
Thanks for the chuckle about the design of the new building at LA's Loyola law school (my alma mater). Of course, the reason the Advocacy Center doesn't look like the Bilbao museum is that Gehry's already doing himself one better than Bilbao, and just down the street from Loyola. Here's what the new Disney Concert Hall will look like.
Aha, now that building would make a most impressive looking law school.

Second Update: A loyal reader who teaches at the Case Western Reserve School of Law has emailed to note that it sits in the shadows of this quite astonishing Frank Gehry creation (you can access more photos here and here). And click here for a photo of the new Loyola Law School building, together with a discussion of its design.

Third Update: Alice W. emails to say, don't forget MIT.
Posted at 14:43 by Howard Bashman



Checking the power of a hard-line judiciary and setting the stage for a possible battle over presidential powers: No, this is not the title of a subcommittee hearing scheduled for next week in the Senate Judiciary Committee. Rather, according to The Associated Press, it is a battle now being fought in Iran, of all places. Click here for the story.
Posted at 14:38 by Howard Bashman



Divided Ninth Circuit panel upholds Montana campaign finance reforms passed in 1994: You can access the Ninth Circuit's ruling, issued today, at this link. Circuit Judge Barry G. Silverman wrote the majority opinion, in which Senior Circuit Judge Arthur L. Alarcon joined. District Judge James A. Tielborg, sitting by designation from the U.S. District Court for the District of Arizona, dissented from the portion of the ruling that sustained a cap on the combined total amount of contributions a candidate could receive from all Political Action Committees.
Posted at 14:21 by Howard Bashman



En banc Ninth Circuit splits (5-2)-4 over whether homosexual man objecting to unwelcome physical contact from male co-workers states Title VII claim: You can access the Ninth Circuit's splintered en banc decision issued today, in which no one opinion commanded a majority of the en banc panel's judges, at this link.

Update: law.com has this report on the ruling. And you can access here the Ninth Circuit's original three-judge panel opinion in this case.
Posted at 14:12 by Howard Bashman



"Those Are My Words, Not My Bond": In case you missed it, New York Times reporter Neil A. Lewis had an interesting article by this title, focusing largely on Tenth Circuit nominee Michael W. McConnell's Senate Judiciary Committee testimony, in this past Sunday's Week in Review section of The Times.
Posted at 11:12 by Howard Bashman



Attorney General John Ashcroft urges prompt confirmation of D.C. Circuit nominee Miguel A. Estrada: The Associated Press has this report.
Posted at 10:56 by Howard Bashman



Listen live online: The Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts is this morning holding a hearing entitled "The DC Circuit: The Importance of Balance on the Nation's Second Highest Court." The hearing was scheduled to begin at 10 a.m. and is about to start. You can listen live online to the hearing by clicking here and then selecting the link for "SD-226" or "Dirksen-226." (At the time I am composing this post, you can hear two law professor witnesses chatting between themselves into the open microphone, apparently unaware that their comments are being sent across the audio network.)
Posted at 10:07 by Howard Bashman



West Virginia asbestos mega-trial shrinks on wave of settlements: Reuters offers this report.
Posted at 10:00 by Howard Bashman



FindLaw guest columnist criticizes "strict constructionism": Peter J. Rubin, formerly a law clerk to U.S. Supreme Court Justice David H. Souter and now an Associate Professor at the Georgetown University Law Center, appears as a guest columnist today on FindLaw. Rubin's column is entitled "Conservative Jurists and the Myth of 'Strict Constructionism.'"
Posted at 08:03 by Howard Bashman



In Tuesday's newspapers: Both The New York Times (article here) and The Washington Post (article here) profile D.C. Circuit nominee Miguel A. Estrada.
Posted at 00:53 by Howard Bashman



Monday, September 23, 2002
"Law Scholars Lift McConnell's Chances": That's the title of Jonathan Groner's article published today in The Legal Times about Tenth Circuit nominee Michael W. McConnell.
Posted at 23:30 by Howard Bashman



Guilty until proven innocent: In an opinion that purposefully creates a circuit split, the U.S. Court of Appeals for the Eleventh Circuit ruled today that a prisoner may pursue a claim alleged to arise under the federal civil rights statute, 42 U.S.C. sec. 1983, for access to DNA evidence that could establish the prisoner's innocence. You can access the Eleventh Circuit's ruling here. Circuit Judge Rosemary Barkett wrote the majority opinion. Chief Judge J.L. Edmondson issued a specially concurring opinion in which he stated:
Although I know that other federal circuit courts have reached conclusions inconsistent with my view, I -- largely for the reasons stated by Judge Barkett -- agree that Bradley's 42 U.S.C. sec. 1983 action is not the functional equivalent of a petition for habeas corpus. I write separately to stress that Bradley has at no time in this federal case asked a federal court to enjoin Alabama from executing him or even to stay his execution until his section 1983 case is decided. The lack of a request for a federal court to stop or to postpone the State execution is important to my decision.

I hint at no view about whether Bradley's lawsuit actually states a claim upon which relief can be granted.
Circuit Judge Stanley F. Birch, Jr. issued an opinion concurring dubitante in the Eleventh Circuit's reversal of the federal district court. Judge Birch's opinion stated, in relevant part:
I am inclined to affirm the judgment based upon my conclusion, tentative though it be, that under the circumstances presented here the petitioner does not enjoy a substantive or procedural due process right to the relief he seeks. Therefore, in my opinion, he does not state a predicate constitutional violation to support his sec. 1983 claim. However, before a final conclusion should be reached on this unsettled issue, a substantially greater amount of thought and briefing should be pursued: just what rights, if any, does a convicted petitioner, who has exhausted his direct appeals and post-conviction avenues of relief, enjoy relative to discovery and testing of DNA evidence? Perhaps on remand this issue will receive the added scrutiny that it deserves.
Judge Barkett's opinion for the court acknowledges that the result it reaches conflicts with a decision that the U.S. Court of Appeals for the Fourth Circuit issued earlier this year. The Fourth Circuit's decision, which you can access here, holds that the prisoner's claim for DNA testing at issue there was not a Section 1983 claim but rather was a successive petition for writ of habeas corpus prohibited by federal law. The prisoner in the Fourth Circuit case filed a petition for rehearing en banc that elicited a lengthy opinion from Circuit Judge J. Michael Luttig and a response from Chief Judge J. Harvie Wilkinson III, who had written the Fourth Circuit's panel opinion.

Given that the Eleventh Circuit's opinion creates a circuit split and involves the especially important question of when a death row prisoner can sue to obtain DNA testing to establish his or her actual innocence, it is quite likely that the U.S. Supreme Court would be willing to review the Eleventh Circuit's ruling if the State of Alabama, which lost in the Eleventh Circuit, so requests.
Posted at 21:53 by Howard Bashman



This opinion is rated PG-13: Circuit Judge Frank H. Easterbrook, writing today for a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, says that accepting the appellant's argument in this appeal would be the same as saying that a donkey has five legs. But it's not some Farrelly Brothers' movie concept that Judge Easterbrook has in mind -- the opinion states "To say that a claim arises under section 1651 does not make it so, any more than calling a donkey's tail a 'leg' gives the animal five legs."
Posted at 21:36 by Howard Bashman



Not telling: Today the U.S. Court of Appeals for the Eleventh Circuit decided a seemingly straightforward securities lawsuit by means of a nine paragraph opinion. Circuit Judge Susan H. Black was a member of the three-judge panel that decided the appeal. At the close of the majority opinion, the decision states: "BLACK, Circuit Judge, concurs in the result." And that's all the decision says about Judge Black's views of the case. Obviously, a judge concurs only in the result of an appeal if he or she disagrees with the majority opinion's reasoning. How and why Judge Black disagreed with the majority opinion's reasoning is unknowable. "This case is important enough for you to know that I don't fully agree but not important enough for you to know why" is what this type of "minute entry" has always indicated to me. Thankfully, these sort of "concurs in the result without opinion" are very rare in the federal appellate court system, but they are used more often in state appellate courts. Am I the only one who reacts negatively when a judge on an appellate court concurs in the result without opinion or dissents without explanation? I welcome your thoughts, whether you agree or disagree with my view, via email. Oh yeah, and feel free to provide reasons for your opinion.
Posted at 21:14 by Howard Bashman



Fifth Circuit denies rehearing en banc in criminal case against former Louisiana Gov. Edwin Edwards: You can access the order that the U.S. Court of Appeals for the Fifth Circuit issued today at this link. The order reveals that the rehearing petition did not even merit a poll of the Fifth Circuit's non-recused active judges. You can access my prior coverage of the Fifth Circuit's ruling upholding Edwards's criminal conviction here and here.
Posted at 19:51 by Howard Bashman



Miguel A. Estrada and the D.C. Circuit: If you thought that the noise from interest groups in advance of the Senate Judiciary Committee's hearing for Tenth Circuit nominee Michael W. McConnell last week was something, expect an even greater crescendo to accompany the committee's hearing this Thursday to consider D.C. Circuit nominee Miguel A. Estrada.

Kicking off the festivities, tomorrow Senator Charles E. Schumer (D-NY) will chair a subcommittee hearing entitled "The DC Circuit: The Importance of Balance on the Nation's Second Highest Court." Then, two days later, Schumer will chair the committee's hearing to consider Estrada's nomination. The Associated Press this afternoon has an article out that begins, "The stakes over the ideological makeup of the federal judiciary increase dramatically this week as the most controversial of President Bush's choices, Honduran native Miguel Estrada, gets a hearing before the Senate Judiciary Committee, 16 months after his nomination."

Liberal journalist Jack Newfield, writing in the October 7, 2002 edition of The Nation, has a long essay entitled "The Right's Judicial Juggernaut." In contrast, supporters of Estrada (or critics of Estrada's critics) can be heard from here and here. Likewise, some bloggers have spoken in support of Estrada's nomination (see Eugene Volokh and Stuart Buck), while others oppose it (see Sam Heldman, with undoubtedly more to come). I threw my support behind Estrada's nomination way back in June 2001 (click here and then scroll to the bottom of the page), when I was merely an appellate columnist, long before I started this Web log.

The next three days should shed some very revealing light on the current state of the federal judicial confirmation process, although I seriously doubt it will do anything to bridge the substantial differences that exist between Democrats and Republicans involved in that process.
Posted at 17:01 by Howard Bashman



U.S. Department of Justice files Ninth Circuit brief opposing Oregon's Death with Dignity law: The Associated Press offers this report. You can access here my prior coverage of this matter, which provides links to the trial court's rulings. While the U.S. Supreme Court back in 1997 rejected a constitutional challenge to a Washington State law that prohibited assisted suicide, that decision does not seem to mandate invalidation of Oregon's Death with Dignity Act, which allows doctor-assisted suicide. It will be very interesting to see how the U.S. Court of Appeals for the Ninth Circuit ultimately rules in this matter.
Posted at 15:56 by Howard Bashman



You've heard of a chicken in every pot: Today The Associated Press is reporting this strange variant.
Posted at 12:15 by Howard Bashman



Seymour M. Hersh profiles Zacarias Moussaoui: The September 30, 2002 edition of The New Yorker magazine contains one of the most lengthy and detailed profiles yet of alleged twentieth hijacker Zacarias Moussaoui. You can access Seymour M. Hersh's profile of Moussaoui at this link.
Posted at 08:15 by Howard Bashman



In Monday's newspapers: Monday's edition of The New York Times profiles the Office of White House Counsel and the individual who currently occupies it, Alberto R. Gonzales. You can access the article here. In an op-ed published in Monday's edition of The Washington Post, Victoria Toensing argues, if I may paraphrase this opinion by Justice Arthur J. Goldberg, that the Constitution is not a suicide pact.
Posted at 00:32 by Howard Bashman



Sunday, September 22, 2002
And in this corner: 8,000 plaintiffs versus 259 defendants. A courtroom in a West Virginia state court will play host beginning on Tuesday to an asbestos liability trial involving those parties, according to this report from Reuters.
Posted at 23:17 by Howard Bashman



Assessing the likelihood of U.S. Supreme Court review in the University of Michigan Law School race-based admission preferences case: On August 9, 2002, plaintiff Barbara Grutter asked the U.S. Supreme Court to review and reverse the Sixth Circuit's en banc decision upholding by a 5-4 vote the University of Michigan Law School's race-based admission preferences. I first noted this news in a post here on the evening of August 9th, and that post provides links to my earlier coverage of this case (including a link to my lengthy report on the evening of May 14, 2002 -- the date the decision issued -- which quotes the juiciest aspects of the court's ruling).

John Rosenberg, who co-authors the fine blog Discriminations the same way that Eugene Volokh co-authors The Volokh Conspiracy (seen any co-conspirators lately?), noted there the other day that the University of Michigan Law School had announced its intention to oppose Supreme Court review and that many other colleges and universities that supported racial preferences were expected to file amicus briefs urging the same result. As I have stated here repeatedly (or re-peat-ed-ly, for those who wish to see my prior statements for themselves), I believe there is a very strong likelihood that the Supreme Court will grant review and decide the Grutter case on the merits.

Grutter's Petition for Writ of Certiorari, the document in which she formally requests Supreme Court review, is available online at this link. The petition seems to hit all the proper points -- a split exists among the federal court of appeals on the question presented, and the question presented is of great national importance, as two current Supreme Court Justices have previously noted. These considerations cause me to conclude that the Supreme Court is nearly certain to grant review in the Grutter case, and if so I would anticipate reversal of the Sixth Circuit's ruling by a 5-4 vote with the usual suspects on each side. I don't quite know what the University of Michigan Law School will say in opposition to the cert. petition, and maybe the reason that the Law School obtained a thirty-day extension for its Brief in Opposition (see the Supreme Court's official docket sheet at this link) is that the Law School isn't sure yet either.

Parties do sometimes file briefs that acquiesce in the granting of certiorari in cases that plainly qualify for and deserve Supreme Court review (here's an example). Nevertheless, as Rosenberg notes in his post, the University of Michigan Law School's anticipated opposition to Grutter's cert. petition can be understood as motivated by the school's belief that it is likely to lose the case in the Supreme Court. Of course, if the Law School's attorneys oppose certiorari on grounds that are clearly without merit, the Law School risks alienating even those Justices who might be sympathetic to the Law School's position on the merits. Once the Law School files its Brief in Opposition, "How Appealing" will report on what that brief has to say.
Posted at 22:29 by Howard Bashman



Online at Salon.com: Political cartoonist Mark Fiore has an animated cartoon that parodies the U.S. Department of Justice's war on . . . well, you'll see. Any Cary Tennis, whose weekly advice column never makes it past my employer's Internet filtering software, has an especially entertaining and well-written essay explaining why you should buy a house. My guess is that this essay on the pleasures of home ownership will not trigger the Internet filter, but I'll find out for sure tomorrow morning.
Posted at 20:43 by Howard Bashman



Information Cher-ing: Four months ago to the day "How Appealing" offered a post that employed this same title, and now I can thank The Los Angeles Times for providing a reason to recycle it today. If you remain hungry for just one more profile of Larry Lessig, today's edition of the LATimes provides this to chew on. Will Lessig succeed in invalidating the Sonny Bono Copyright Term Extension Act of 1998? "How Appealing" certainly will keep you posted. For more information on the Eldred v. Ashcroft case, click here. (Link to LATimes article via Bag and Baggage.)
Posted at 19:12 by Howard Bashman



In Sunday's newspapers: Today's edition of The New York Times contains an "Editorial Observer" essay by Adam Cohen entitled "Justice Rehnquist's Ominous History of Wartime Freedom." Guess there was no room in the headline for the "Chief." Adam Liptak, whose article about jury nullification I've already noted in the post immediately below, also has a news analysis piece in The Week in Review section entitled "A Nation of Informers."

The Washington Post contains an article reporting that "in Texas, public debate over the death penalty is muted, and there is little official soul-searching." Another article reports on a pending U.S. Supreme Court case in which "the Bush administration and the pharmaceutical industry have laid out their objections to a Maine program that poses a test of states' power to constrain the escalating price of prescription drugs." Finally, a piece in the Book Review looks at "Courting Disaster: The Supreme Court and the Unmaking of American Law" by Martin Garbus. The reviewer does not seem to have liked this book very much.
Posted at 00:37 by Howard Bashman



Saturday, September 21, 2002
Attention fans of jury nullification -- South Dakota may be the State for you: Reporter Adam Liptak has this report, from tomorrow's edition of The New York Times.
Posted at 19:11 by Howard Bashman



Who's next? Anne Gearan, who covers the Supreme Court of the United States for The Associated Press, reports today on rumors that Chief Justice William H. Rehnquist might retire from the Court at the end of the upcoming Term. The AP also names those individuals who might be on the White House's short list if a Supreme Court vacancy were to arise.
Posted at 18:43 by Howard Bashman



Tonight on C-SPAN's "America and the Courts": Tonight's installment of C-SPAN's fine program "America and the Courts" is scheduled to broadcast a portion of this past Wednesday's Senate Judiciary Committee hearing for Tenth Circuit nominee Michael W. McConnell. If you miss the broadcast on television, you can watch the entire hearing over the Web via this link.
Posted at 18:10 by Howard Bashman



In Saturday's newspapers: Today's edition of The New York Times contains an op-ed from Yale Law School Professor Bruce Ackerman entitled " The Legality of Using Force." Josh Chafetz of OxBlog argues here that Ackerman's reasoning is flawed. The Los Angeles Times reports on the nationwide class action consisting of injured smokers that a New York-based federal trial court certified last week, and the article quotes commentators who believe the class certification order is likely to be overturned on appeal. Elsewhere, the LATimes editorializes in favor of the proposed federal Innocence Protection Act, which seeks to place into law even stronger safeguards for avoiding the execution of the innocent.
Posted at 10:29 by Howard Bashman



Friday, September 20, 2002
Trafficant can't get out of prison: That's what the U.S. Court of Appeals for the Sixth Circuit has ruled in the case of former Congressman James A. Traficant Jr., The Associated Press reports here.
Posted at 23:44 by Howard Bashman



Warning -- disclaimers ahead: Tony Mauro, with a large assist from Tom Goldstein, summarizes the cert. petitions now pending before the U.S. Supreme Court that have the best chance of being granted. A large part of the article is spent explaining how Kenneth W. Starr has turned into something of a tattoo aficionado.

Disclaimers: In one of the cases summarized, I worked on a rehearing en banc petition filed in the Third Circuit; in another, I consulted over lunch with the attorney who argued the case before the Third Circuit en banc; a third case was filed by a lawyer who was my co-clerk during my Third Circuit clerkship, and he and I discussed his cert. petition on a broad, theoretical level while he was preparing it; in a fourth case, the cert. petition was written by a friend who works at my former law firm, and whose sister was a summer associate at my current law firm, and happily the summer associate/sister received an offer of employment to join my current law firm in the fall of 2003; and, finally, I once worked with Tom Goldstein on a cert. petition (which the Court granted), Tom Goldstein reads this blog and sometimes even sends me emails, and I admire Tom Goldstein both as a person and as an appellate advocate.
Posted at 23:16 by Howard Bashman



Hispanic community split over Estrada: Tony Mauro has this report via law.com regarding D.C. Circuit nominee Miguel A. Estrada.
Posted at 23:15 by Howard Bashman



Supreme Court of Georgia denies review of $257 million punitive damages award: Those who contend size doesn't matter now have a court decision on which to draw. law.com is reporting that the Supreme Court of Georgia, cool motto and all (click here for more motto-related info), has voted to deny discretionary review of a $257 million punitive damages award entered against an affiliate of AOL Time Warner. You've got punitive damages.
Posted at 23:08 by Howard Bashman



Slate recycles Michael W. McConnell: Slate's constantly changing front page tonight contains an item linked as "Why the Judiciary Committee might be reading Slate right now." The answer is that back in November 2000, current Tenth Circuit nominee Michael W. McConnell engaged in a Dialogue about the Presidential election that then seemed as though it would never end. Slate can be sure of one thing -- those readers of "How Appealing" who are connected to the Senate Judiciary Committee or the Department of Justice's Office of Legal Policy will now be reading McConnell's Slate dialogue (although, in truth, they've all probably read it, and re-read it, long before today).
Posted at 22:41 by Howard Bashman



En banc First Circuit lets City of Lowell, Massachusetts off the hook for $500,000 in punitive damages: Although the City of Lowell failed to object to a jury instruction that allowed punitive damages to be imposed against it, the en banc U.S. Court of Appeals for the First Circuit today ruled 5-2 that the award was so contrary to law that the doctrine of plain error, even in this civil case, required reversal of the jury's $500,000 punitive damages award against the City. You can access the court's ruling at this link. And, did you know that the federal practice of holding en banc rehearings originated on my home turf, in the U.S. Court of Appeals for the Third Circuit? If that's news to you, be sure to read my monthly appellate column from April 2001, because it traces the history of rehearings en banc in federal appellate courts (and describes the flawed method for deciding whether to grant en banc rehearing that some circuits currently follow). You can sign-up for free email delivery of my column in PDF format, on the day of its publication on the second Monday of each month in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, by clicking here.
Posted at 22:32 by Howard Bashman



Sharply divided Fourth Circuit denies rehearing en banc in Virginia Confederate flag license plate case: The U.S. Court of Appeals for the Fourth Circuit, by a vote of 6-5, has today denied rehearing en banc of a three-judge panel decision striking down on First Amendment grounds a Virginia law that prohibited the display of the Confederate flag on a special license plate to be issued to the Sons of Confederate Veterans organization. Chief Judge J. Harvie Wilkinson III issued an opinion concurring in the denial of rehearing en banc stating, in full:
The closeness of the court's vote (6 to 5) leads me to explain my own. I concur in the denial of rehearing en banc because the legislative action here seems to me to violate basic First Amendment principles. The Virginia General Assembly has approved over one hundred special plates, and the statute authorizing the SCV special plate is the only one with design and logo restrictions. When a legislative majority singles out a minority viewpoint in such pointed fashion, free speech values cannot help but be implicated. And it is as a free speech case, not as a Confederate flag case, that this appeal must be resolved.

It is important to keep the issue here in some perspective. The vast majority of Virginians have no desire to display a Confederate logo on their license plates. The vast majority of Virginians seek venues other than a motor vehicle tag for the observance of their lineage, and do not view the Confederate flag as symbolically celebrating their line of descent. The vast majority of Virginians understand that one motorist's proclamation of heritage is another's reminder of the unspeakable cruelties of human bondage. The vast majority of Virginians recognize the sad paradox of Confederate history -- namely, that individual southerners, so many good and decent in themselves, swore allegiance to a cause that thankfully was lost, and to practices that no society should have sought to defend.

But the First Amendment was not written for the vast majority of Virginians. It belongs to a single minority of one. It is easy enough for us as judges to uphold expression with which we personally agree, or speech we know will meet with general approbation. Yet pleasing speech is not the kind that needs protection. Our Constitution safeguards contrarian speech for several reasons. As the Civil Rights Movement demonstrates, yesterday's protest can become tomorrow's law and wisdom. Other contrarian speech should move popular majorities to reaffirm their own beliefs rather than suppress those of others. The reminders of history's most tragic errors only deepen our commitment to the dignity of all citizens: The Constitution that houses the First Amendment also shelters the Fourteenth, an everlasting reminder that a nation betrothed to liberty and equal justice under law must remain vigilant to realize both.
Circuit Judge Roger L. Gregory was among those who dissented from the denial of rehearing en banc, and the dissent he wrote concluded with the following paragraph:
The issues presented here are important ones, unresolved by precedent, and, in my view, worthy of en banc review. Five members of this Court have voted for rehearing en banc. This Court should take pause and avail itself of its collective wisdom before striking down a statute of the Commonwealth of Virginia that, in my view, makes a rational attempt to balance government and private interests. This Nation has yet to heal from the deep wounds left by the Civil War. Ghosts from that terrible war and the issues of slavery still haunt America's public institutions. Somehow we, as Americans, must transcend this divide and find a way to "bind up the Nation's wounds." Abraham Lincoln, Second Inaugural Address (March 4, 1865), in The Living Lincoln 640 (Paul M. Angle & Earl S. Miers eds., Barnes & Noble Books 1992). Perhaps the legislature, duly elected by the people of Virginia, got it right. Enacting a statute that allowed members of the SCV to display their heritage in a proud and positive manner, without the Commonwealth of Virginia being perceived as promoting a symbol that has and continues to be the source of so much pain, was truly a step toward healing our Nation. Perhaps it would give many Virginians an opportunity to see the issues in a different light and begin to appreciate the SCV's celebration of heritage, without seeing "stars" or peering through "bars."
You can access the order denying rehearing en banc and the separate opinions of five Fourth Circuit Judges at this link.
Posted at 16:23 by Howard Bashman



Third Circuit rules against Senator Robert G. Torricelli: A a rather conservative three-judge panel of the U.S. Court of Appeals for the Third Circuit today issued a non-precedential opinion that begins:
Appellants, U.S. Senator Torricelli and Media Intervenors, appeal from the District Court's decision to partially seal, by selective redactions, the government's sentencing memorandum in its case against David Chang. The sentencing memorandum, here a letter filed pursuant to U.S. Sentencing Guidelines sec. 5K1.1 (hereinafter "5K letter"), details Chang’s cooperation and the government's reasons for seeking a downward departure in his sentence. The Senator seeks to deny access completely. The Media seek complete access. The government is content with the status quo.

* * * We will reverse the order of the District Court and release the 5K letter in its entirety.
Although the Third Circuit issued this as a non-precedential opinion, the ruling certainly will be of interest to the press.
Posted at 15:28 by Howard Bashman



A federal judicial nomination update: Today the full U.S. Senate confirmed U.S. District Judge Reena Raggi to serve on the U.S. Court of Appeals for the Second Circuit. The Senate Judiciary Committee's Web site says the vote was 85-0.

It can now officially be noted that Chief Judge Edward R. Becker of the U.S. Court of Appeals for the Third Circuit will take senior status on May 4, 2003. Last week, I posted here about who is next in line to serve as the Third Circuit's Chief Judge. Chief Judge Becker's taking of senior status will, of course, open up a Third Circuit vacancy in the Philadelphia region.

Finally, the Senate Judiciary Committee's Web site indicates that the committee on Wednesday of this week favorably reported to the full Senate the nomination of Lawrence J. Block to serve on the U.S. Court of Federal Claims. Usually the committee's Web site discloses the number of yes and no votes that a nominee receives, but not in this instance.
Posted at 13:51 by Howard Bashman



Ohio intermediate appellate court rules public defender must reveal information obtained from deceased client concerning girl's disappearance: The Associated Press offers this report. As of a few moments ago, the opinion had yet to be posted online at the court's Web site.
Posted at 11:11 by Howard Bashman



Second Circuit overturns $164.5 million judgment against Bear, Stearns and in favor of Canadian man: The U.S. Court of Appeals for the Second Circuit yesterday overturned a $164.5 million judgment against Bear, Stearns & Co. and in favor of a Canadian investor. The judgment reportedly was, at least at the time it issued, the largest ever won by an individual investor. You can access the Second Circuit's ruling at this link.
Posted at 09:37 by Howard Bashman



In Friday's Washington Post: Today's edition of The Washington Post contains an editorial arguing that "Michael McConnell is one of the best qualified nominees a president of either party has advanced for a court of appeals vacancy in many years." And, the Post reports that the U.S. Court of Appeals for the District of Columbia Circuit issued an order yesterday that prevents D.C.'s local government from putting a medical marijuana initiative on the ballot this November.
Posted at 06:49 by Howard Bashman



A victory for voyeurs in Washington State: The Washington State Supreme Court yesterday ruled that a statute outlawing voyeurism "does not criminalize upskirt photography in a public place." You can access the court's majority opinion here and a concurring opinion here.
Posted at 06:42 by Howard Bashman



Thursday, September 19, 2002
You don't say: "A year is a year is a year. A year in the context of a statute of limitations should have the same certainty as a year that represents the number of days required for one revolution of the earth around the sun." So writes Circuit Judge M. Margaret McKeown in her opinion concurring in the judgment issued in a habeas corpus case that the U.S. Court of Appeals for the Ninth Circuit decided today.
Posted at 23:04 by Howard Bashman



A preview of the U.S. Supreme Court's business cases on the docket for the upcoming Term: Tony Mauro, via law.com, offers this preview of business cases now pending on the merits before the U.S. Supreme Court. And, yes, State Farm is there, and so is a mention of "adult sex paraphernalia." Two different cases, though, in case you were wondering.
Posted at 22:39 by Howard Bashman



Who says the Tenth Circuit isn't important? Not I. Today the U.S. Court of Appeals for the Tenth Circuit decided an appeal arising from an antitrust case brought against Novell, Inc. by the Lantec companies. You can access the court's opinion here, but the short answer is Novell wins.
Posted at 20:47 by Howard Bashman



Is speech on campus less free post-9/11? Dahlia Lithwick's latest Slate essay, posted online this evening and available at this link, contends that wartime censorship is alive and well at our Nation's colleges and universities.
Posted at 20:36 by Howard Bashman



Are federalist principles hostile to feminism? The Federalist Society will be presenting a program on this issue at the Georgetown University Law Center on the afternoon of October 10, 2002. You can access more details at this link. The society's announcement explains: "Many feminists have long argued that the current Supreme Court's federalism jurisprudence is harmful to women and to the cause of women's rights; and many feminist organizations have been vocal in urging members of the Senate Judiciary Committee to oppose federal judicial nominees who share the current Court's federalist leanings. The Senate's recent rejection of Justice Priscilla Owen for a seat on the U.S. Court of Appeals for the Fifth Circuit has brought this debate into sharper focus."
Posted at 17:21 by Howard Bashman



Divided Fourth Circuit panel rejects constitutional challenge to South Carolina's regulation of abortion clinics: A divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit today rebuffed various constitutional challenges to a South Carolina regulation establishing standards for abortion clinics. You can access the court's opinion at this link. Circuit Judge Paul V. Niemeyer wrote the majority opinion, in which Senior District Judge James H. Michael, Jr. of the U.S. District Court for the Western District of Virginia joined. Circuit Judge Robert B. King filed a dissenting opinion that began:
We today address significant questions arising from one of the most divisive and contentious issues in our nation's history. Since Roe v. Wade was decided by the Supreme Court in 1973, the struggle over the existence and scope of a woman's constitutional right to choose has been a constant part of our political landscape. In recent years, state legislatures have taken an increasingly active role in regulating access to abortion; in many places, burdensome regulations have made abortions effectively unavailable, if not technically illegal. It is this type of regulation -- micromanaging everything from elevator safety to countertop varnish to the location of janitors' closets -- that is challenged in this case.

The State of South Carolina is entitled to make a value judgment, as a matter of its public policy, to favor childbirth over abortion. Rust v. Sullivan, 500 U.S. 173, 192-93 (1991); Maher v. Roe, 432 U.S. 464, 474 (1977). In accordance with this prerogative, South Carolina has made its preference clear. For example, while a citizen of the Palmetto State may obtain a "Choose Life" automobile license plate from the authorities, he may not obtain a "Choose Choice" license plate. S.C. Code Ann. sec. 56-3-8910 (West 2002). Insofar as the legislature in South Carolina wishes to limit the choices of its female citizens, it has been largely successful. Eighty percent of the State's counties lack an abortion provider, and between 1992 and 1996, the number of such providers in the State fell from eighteen to fourteen. Stanley K. Henshaw, "Abortion Incidence and Services in the United States, 1995-1996," Fam. Plan. Persp., Vol. 30, No. 6, November/December 1998.

South Carolina is not, however, entitled to adopt and pursue an anti-abortion agenda at the expense of constitutional rights. Having carefully examined the constitutional challenges made by Greenville Women's Clinic and other abortion providers (collectively, the "Plaintiffs") to aspects of the Regulation, I am inexorably led to conclude that certain of its provisions violate the Constitution.
A petition for rehearing en banc and/or a petition for writ of certiorari likely will follow, so stay tuned for further developments in this matter.
Posted at 16:09 by Howard Bashman



Senate Judiciary Committee has postponed its vote on Fourth Circuit nominee Dennis W. Shedd: The Associated Press has this report on this morning's developments. The AP report also contains other interesting information about the entire judicial confirmation imbroglio.
Posted at 13:39 by Howard Bashman



Wired on Lessig: Wired Magazine in its October 2002 issue features a lengthy article entitled "Lawrence Lessig's Supreme Showdown," which explains that "Now the cyberlaw star is about to tell the Supreme Court to smash apart the copyright machine." The article also notes that Eldred v. Ashcroft will be Lessig's "first argument before the Supreme Court -- and only his second appearance before any court, in any venue." After reading the Wired article, you can learn even more about the Eldred case at this link.
Posted at 11:50 by Howard Bashman



Attention adulterers! The U.S. Court of Appeals for the Sixth Circuit has ruled this morning that an adulterous relationship between two consenting adults is not a constitutionally protected form of "freedom of association" that would qualify as a fundamental element of personal liberty. As a result, the appellate court affirmed the dismissal of a deputy sheriff's civil rights suit alleging that he was unlawfully fired due to his intimate relationship and cohabitation with a woman who was married to someone else. You can access the Sixth Circuit's ruling here. In its opinion, the Sixth Circuit explains that the Supreme Court's controversial 1986 decision in Bowers v. Hardwick "is extremely instructive in the present case." Senior Circuit Judge Eugene E. Siler, Jr. wrote the majority opinion, in which Chief Judge Boyce F. Martin, Jr. joined. Circuit Judge Eric L. Clay wrote an opinion concurring in the judgment, in which he criticized his colleagues' categorical ruling that an adulterous relationship is never constitutionally protected but agreed that this particular adulterous relationship was not.
Posted at 10:28 by Howard Bashman



Didn't lay a glove on him: In Byron York's essay just posted to National Review Online within the hour, he writes that "Some of the committee's most combative Democrats didn't lay a glove on McConnell -- and didn't really seem to be trying." The final two paragraphs of York's essay are worth quoting here:
It all looks wildly erratic, but there is a certain logic to the Democrats' work. The Brooks Smith vote was old-fashioned political horse-trading. Lavenski Smith was pro-life and black, which made Democrats reluctant to go after him. Killing Owen was a slap at the president. (In addition, Owen was a pro-life woman, making her an especially egregious offender in some Democratic quarters.) Killing Pickering was a slap at Senate Minority Leader Trent Lott. Neither Pickering nor Owen had connections to the nation's elite law schools.

McConnell, on the other hand, is a widely respected professor who has the support of many liberal colleagues who are part of the Democratic/liberal judicial network. McConnell also has no record of judicial decisions to criticize. So he'll make it. There's some logic to it. But not, as Priscilla Owen might tell you, any fairness.
That's an interesting way of understanding recent events.
Posted at 09:49 by Howard Bashman



In Thursday's newspapers: First up, coverage of yesterday's Senate Judiciary Committee hearing for Tenth Circuit nominee Michael W. McConnell. You can access coverage from: The New York Times-here; The Washington Post-here; The Los Angeles Times-here; and, for some local perspective, The Salt Lake Tribune-here; and Deseret News-here.

In other news, the LATimes also contains a report on the Ninth Circuit's ruling in the Unocal/Myanmar (or, if you prefer, the nation formerly known as Burma) case. I mentioned that decision yesterday in a post you can access here. Release Stanley "Tookie" Williams from death row, Lewis Yablonsky argues in an op-ed in today's LATimes. I reported here on the Ninth Circuit's recent decision upholding Williams's death sentence. The Washington Post today has an editorial that discusses the Bush Administration's supposed "difficulty in figuring out what to do with, and how to classify, those it detains" in the war on terror. Finally, NYTimes columnist Bob Herbert in his column today profiles the ACLU's executive director, who reported to his office in lower Manhattan on September 4, 2001 for his first day in that job.
Posted at 09:12 by Howard Bashman



Today in the Senate Judiciary Committee: The Senate Judiciary Committee is scheduled to hold an executive business meeting today at 10:00 a.m. eastern daylight time during which, among other things, the committee is to vote on the nomination of U.S. District Judge Dennis W. Shedd to serve on the U.S. Court of Appeals for the Fourth Circuit and the nomination of Lawrence J. Block to be a Judge on the U.S. Court of Federal Claims. I previously mentioned a USA Today article about Block's nomination here.
Posted at 08:30 by Howard Bashman



Wednesday, September 18, 2002
Visit pool-side this November with the Judges of the Third Circuit: For the first time in twenty-four years the U.S. Court of Appeals for the Third Circuit is holding its annual Judicial Conference in the U.S. Virgin Islands. The conference, which is itself open only to Judges (circuit, district, magistrate, and bankruptcy), will kick-off on the night of Sunday, November 10, 2002 with a gala reception and dinner at the Renaissance Grand Beach Resort in St. Thomas. Justice David H. Souter, who serves as Circuit Justice for the Third Circuit, will be the featured speaker at the dinner. An invitation from Chief Judge Edward R. Becker explains that the evening "begins at 7:00 p.m. with a pool-side reception." For those of us who don't get to hang pool-side with Third Circuit Judges very often, it promises to be a treat.
Posted at 23:55 by Howard Bashman



What's a little hyperbole between friends? In dissent from a ruling issued today by two of his Fourth Circuit colleagues, Circuit Judge J. Michael Luttig writes, "at least on a principled application, Burford abstention would be required in virtually every diversity case by today's opinion, a result supported by no authority, not even those in our Circuit, and certainly none of those relied upon by the majority." Chief Judge J. Harvie Wilkinson III, who wrote the majority opinion, observes in a footnote that Judge Luttig's claim "goes beyond hyperbole."
Posted at 23:48 by Howard Bashman



What impressive stationery you have, Your Honor: Today the U.S. Court of Appeals for the Seventh Circuit resolved an appeal by two plaintiffs from the dismissal of their federal civil rights act claims against several defendants, one of whom was a state juvenile court judge. As Circuit Judge Richard A. Posner explained in his unanimous opinion for the three-judge panel:
Judge Vahle wrote a letter--the centerpiece of the Tierneys' case--on judicial stationery to the high school athletic director, which is to say Coach Powers's immediate superior.

* * * * *

Apart from the stationery, there is nothing to indicate that Judge Vahle's letter was anything other than a personal letter of support of Coach Powers, who had given swimming instruction to three of the judge's kids. Obviously Judge Vahle was not acting within the scope of his judicial office, and it is not alleged that he intended to use his judicial powers against the Tierney family. Nevertheless, if he was somehow using that office to magnify the impact of his private action, like a policeman who uses his uniform or his gun to intimidate a person with whom he is having an entirely private quarrel, he would be acting under color of state law within the meaning of the cases that interpret this term in 42 U.S.C. sec. 1983.

But the fact that a personal letter is written on judicial stationery cannot reasonably be thought to show, all by itself, that the sending of the letter was an act done under color of state law. It can give coloration to other facts indicative of an invocation of official power but no case holds that it is enough by itself, and it would make little sense to hold that. Some judges have only their official stationery and use it for their personal as well as official correspondence, and so with their phone and their e-mail. Of course they have to be careful not to create an impression that the power of the office is somehow behind the letter, and so it would be a mistake or worse for a judge to use his official stationery to question a bill or ask for a discount. But there is nothing like that here. It is apparent from the content of the letter that it was written in Vahle's capacity as a father rather than as a judge. No reasonable person could think himself being threatened by the letter with the fell powers of the juvenile court--threatened, for example, with Vahle's removing the Tierneys' children from their custody to punish them for their effrontery in accusing Powers of sexual improprieties. The plaintiffs claim that it is a violation of Illinois rules of judicial ethics for a judge to write a personal letter on his judicial stationery, but no citation is needed for the proposition that a violation of state law is not actionable under section 1983.
Interesting stuff.
Posted at 23:36 by Howard Bashman



Gotcha! The U.S. Court of Appeals for the Third Circuit ruled today that a criminal defendant whom the U.S. Coast Guard seized from beyond the territorial waters of the United States, while the defendant was on a boat sailing under a Brazilian flag, may be tried in federal court even though the United States didn't obtain Brazil's consent to intercept the defendant's boat or seize the defendant. You can access the ruling here.
Posted at 23:33 by Howard Bashman



We have ways to make you mediate: Today the U.S. Court of Appeals for the First Circuit ruled that a district court has the inherent authority -- in the absence of any authorizing contractual language, statute or court rule -- to order an unwilling party to participate in, and share the costs of, non-binding mediation conducted by a private, for-profit mediator. You can access the ruling here.
Posted at 23:28 by Howard Bashman



Today's Moneybox column on Slate: This looks interesting.
Posted at 23:22 by Howard Bashman



Please remain in your seats and keep your seatbelts securely fastened: On December 29, 1997, a United Air Lines flight from Tokyo, Japan to Honolulu, Hawaii encountered such sever turbulence over the Pacific Ocean three hours into the flight that one passenger died and many others were injured. Plaintiffs who sustained damages as a result of that flight filed suits in Northern California, but the federal district court, applying the federal common law doctrine of forum non conveniens, dismissed the suits in favor of a more convenient forum in Japan. Today, in an especially interesting decision that creates a conflict with a 1987 en banc Fifth Circuit ruling, the U.S. Court of Appeals for the Ninth Circuit held that Article 28(1) of the Warsaw Convention overrides the discretionary power of the federal courts to dismiss an action for forum non conveniens. As a result, the plaintiffs can now continue to pursue their lawsuits in California federal court.
Posted at 22:54 by Howard Bashman



Second Circuit recognizes that "life is a highway": A unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit, recognizing that life is indeed a highway, issued an opinion today that began:
Defendant City of New York seizes the motor vehicles of some of those accused of driving while intoxicated and of committing other crimes for which a motor vehicle could be considered an instrumentality. The City maintains possession of these vehicles in the hope of one day gaining title to them by prevailing in civil forfeiture proceedings. These proceedings generally await the resolution of criminal charges and can take months or even years to be finalized. The City claims and plaintiffs-appellants ("plaintiffs") do not contest that the proceedings are authorized, as is the seizure, by provisions of the City's Civil Administrative Code that cede to the City title to property found to be an instrumentality of crime.

Plaintiffs contend that their inability to challenge, promptly after the vehicles are seized, the legitimacy of and justification for the City's retention of the vehicles prior to judgment in any civil forfeiture proceeding violates their constitutional rights. We agree. A car or truck is often central to a person's livelihood or daily activities. An individual must be permitted to challenge the City's continued possession of his or her vehicle during the pendency of legal proceedings where such possession may ultimately prove improper and where less drastic measures than deprivation pendente lite are available and appropriate.

We vacate the judgment of the district court and remand for the court to order, after consultation with the parties, the appropriate injunctive relief.
(This post's title courtesy of Tom Cochrane.)
Posted at 22:50 by Howard Bashman



Play your sad Qatar: This post has no current appellate law relevancy, but with all the talk in the news of Qatar, I couldn't help but be reminded of a certain tune performed by the Carpenters.
Posted at 22:35 by Howard Bashman



One more reason to read "How Appealing": law.com's California site appears as of now to require a paid subscription to access almost all of its content. This would seem to mean no more free access to Jason Hoppin's fine work except for those days on which his article is selected as the one featured free item. Meanwhile, access to "How Appealing" continues to require little more than a Web browser, Web access, and a slight bit of free time. As the man once said, "You get what you pay for."
Posted at 22:29 by Howard Bashman



In case you didn't believe it when I said so: It's now official (well, at least The Associated Press is reporting) that next week the Senate Judiciary Committee will be holding a hearing on Miguel A. Estrada's nomination to serve on the U.S. Court of Appeals for the D.C. Circuit. The AP article reports that "Estrada probably will face a tough battle."
Posted at 22:24 by Howard Bashman



Tonight, a surfeit of noteworthy decisions: Fortunately for me, days like today are rare, because this day has brought a veritable plethora, superfluity, abundance, and/or profusion of decisions worthy of mention here. I will try my best to do each decision "justice," for lack of a better word.
Posted at 22:15 by Howard Bashman



You know the first Monday in October must be just around the corner when . . . . USA Today, um, today carries an interesting profile of Justice Antonin Scalia written by its U.S. Supreme Court correspondent, Joan Biskupic. Here's a sample: "Scalia's inattention to etiquette can be jarring. John Jeffries' biography of the late Justice Lewis Powell says that during Scalia's first session at the court, he asked so many questions that Powell whispered to Justice Thurgood Marshall, 'Do you think he knows that the rest of us are here?'" The article is well worth a look, and it makes one wonder whether there is any way Scalia can form a pun using Joan's last name (say what?). (Via Stuart Buck.)
Posted at 22:04 by Howard Bashman



Update on today's Senate Judiciary Committee hearing: The portion of today's Senate Judiciary Committee hearing that will focus on Tenth Circuit nominee Michael W. McConnell has just concluded, and Prof. McConnell did an excellent job testifying before the committee. Based on today's hearing, I would be most surprised if the committee rejected his nomination.
Posted at 15:36 by Howard Bashman



Day old commentary: Slate yesterday posted an essay subtitled "Why the battle for school vouchers isn't over," and you can access it here. And, on FindLaw, a commentator yesterday criticized the continued military detention of U.S. born "enemy combatants."
Posted at 14:18 by Howard Bashman



The confirmation process and Prof. McConnell: Law Professor Jeff Cooper, at his blog, offers some interesting views on the current process for confirming federal judicial nominees. And, I thank him for the very kind words he directs my way at the end of his post.

Update: Albert W. Alschuler, law professor at the University of Chicago Law School, has an op-ed supporting McConnell in today's edition of The Chicago Tribune. (Via Stuart Buck.)
Posted at 14:00 by Howard Bashman



Another example of the long arm of the law: The U.S. Court of Appeals for the Ninth Circuit today issued its ruling in John Doe I v. Unocal Corporation. Circuit Judge Harry Pregerson wrote the opinion on behalf of a three-judge Ninth Circuit panel. The opinion begins:
This case involves human rights violations that allegedly occurred in Myanmar, formerly known as Burma. Villagers from the Tenasserim region in Myanmar allege that the Defendants directly or indirectly subjected the villagers to forced labor, murder, rape, and torture when the Defendants constructed a gas pipeline through the Tenasserim region. The villagers base their claims on the Alien Tort Claims Act, 28 U.S.C. sec. 1350, and the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. sec. 1961 et seq., as well as state law.

The District Court, through dismissal and summary judgment, resolved all of Plaintiffs' federal claims in favor of the Defendants. For the following reasons, we reverse in part and affirm in part the District Court's rulings.
Circuit Judge Stephen Reinhardt was also on the panel, and he contributed a twenty-five page concurring opinion, which causes the entire decision to run seventy-eight pages. The third member of the panel was Circuit Judge A. Wallace Tashima. You can access here the complete Ninth Circuit ruling.
Posted at 13:50 by Howard Bashman



"Jury Selection Proving Difficult In Trial Of 'The Jury Killer'": This week's edition of The Onion, online today, contains a newsbrief that begins, "Defense attorneys for Thomas David Skrepnak, accused in 1999 of fatally stabbing all 12 members of the jury hearing his armed-robbery trial, are having trouble finding unbiased jurors for his upcoming murder trial."
Posted at 12:33 by Howard Bashman



Turning off the false light in Colorado: The Associated Press is reporting today that the Supreme Court of Colorado "has reversed a jury verdict awarding $106,507 to a man who said the Rocky Mountain News falsely portrayed him as a member of a crime family." The AP report goes on to note: "in Monday's 4-3 ruling, the state Supreme Court said the 'false light' invasion of privacy theory is not recognized as grounds for a lawsuit in Colorado, largely duplicates the defamation law and could have a chilling effect on constitutional freedoms." You can access here this very significant Colorado Supreme Court ruling.
Posted at 12:07 by Howard Bashman



Even more pepper spray: Apropos my recent post that noted the use of pepper spray by the police at this week's Monday Night Football game between the Redskins and the Eagles, yesterday the U.S. Court of Appeals for the Eighth Circuit decided an appeal arising from a prison inmate's lawsuit alleging that his constitutional rights were violated when he was sprayed in the face with capstun pepper spray by a prison guard. You can access here the Eighth Circuit's opinion.
Posted at 11:38 by Howard Bashman



A line in the cyberspace has been crossed: Moments ago, this Web log's hit counter recorded the 100,000th visit to "How Appealing." Considering that "How Appealing" has only been in existence for four months and twelve days, 100,000 page visits is not too shabby. "How Appealing" is well on its way to achieving more than 300,000 page visits in its first year of existence. Thanks so much for visiting, one and all!
Posted at 08:23 by Howard Bashman



Listen live to this morning's Senate Judiciary Committee hearing for Michael W. McConnell: The Web site CapitalHearings.org, a C-SPAN affiliate, will provide a live audio feed of this morning's Senate Judiciary Committee hearing for Tenth Circuit nominee Michael W. McConnell. The hearing is scheduled to begin at 10 a.m. eastern daylight time today. To access the audio feed, click here and select the link for the Judiciary Committee's audio feed.

Update: At National Review Online, Byron York this morning reports that insiders expect McConnell to gain approval from the Judiciary Committee. On the other hand, writing at The Corner last night, Jonathan Adler noted that "D.C. Circuit nominee Miguel Estrada * * * may face some obstacles on the road to confirmation" and that "[n]ext Tuesday, Senator Schumer is holding a subcommittee hearing on 'The DC Circuit: The Importance of Balance on the Nation's Second Highest Court.'"
Posted at 08:19 by Howard Bashman



In Wednesday's New York Times: Today's edition of The New York Times contains an article previewing this morning's Senate Judiciary Committee hearing for Tenth Circuit nominee Michael W. McConnell. Today's NYTimes also contains an op-ed from McConnell supporter Douglas Laycock.

Update: The Wall Street Journal early this morning has posted online a collection of McConnell's essays written for that publication, including the controversially titled "Roe v. Wade at 25: Still Illegitimate."
Posted at 00:33 by Howard Bashman



Tuesday, September 17, 2002
Coverage of today's Third Circuit oral argument in case challenging the INS's blanket closure of terror-related deportation proceedings: This afternoon the U.S. Court of Appeals for the Third Circuit heard nearly ninety minutes of oral argument in North Jersey Media Group, Inc., et al. v. John Ashcroft, etc., et al., a case that concerns the press's challenge to the blanket closure of INS hearings in post-9/11 terror detainee cases. The three-judge panel consisted of Chief Judge Edward R. Becker, Circuit Judge Anthony J. Scirica, and Senior Circuit Judge Morton I. Greenberg, all three of whom were appointed to the Third Circuit by President Reagan.

Gregory G. Katsas, a former law clerk to Circuit Judge Becker who then went on to clerk for Justice Clarence Thomas, argued the case for the U.S. government. Lee Gelernt of the ACLU argued on behalf of the media. As I had predicted, the government received a much friendlier reception today in the Third Circuit than it received when it argued a similar appeal (since decided adversely to the government) in the U.S. Court of Appeals for the Sixth Circuit.

The Legal Intelligencer's federal court correspondent, Shannon P. Duffy, has a characteristically fine report on today's oral argument, which you can access here. While Chief Judge Becker had some tough questions for his former law clerk Katsas, Becker seemed especially unimpressed with the oral argument of attorney Gelernt. It wasn't so much that Gelernt did a bad job -- he didn't -- but rather the panel wasn't buying his arguments or the foundation of the Sixth Circuit's ruling that in choosing between opening administrative hearings (which have no long historical pedigree of openness) and increasing the risk of terrorist attacks, openness must win.

Katsas argued that in the absence of a sufficiently well-established historic right of openness, the extent of access to deportation hearings was a matter to be decided by the political branches. He candidly admitted that "People like access and the political branches pay a price when they try to restrict it. We will pay a price if the people disagree." Turning to the Sixth Circuit ruling -- which surprisingly wasn't a central focus of today's Third Circuit argument -- Katsas stated that the federal government has not yet decided whether to seek rehearing en banc in the Sixth Circuit. In answer to Judge Scirica's question that sought to learn whether evidence of terrorist-related activities is ever actually relevant at a deportation hearing, Katsas argued that it certainly was, since being a terrorist is grounds for deportation, and terror-related activities can also be relevant to the setting of bond. Later, Judge Greenberg asked Katsas the surprising question whether the Third Circuit could rule in the government's favor consistent with the Sixth Circuit's decision or without saying the Sixth Circuit was wrong. Katsas forthrightly answered no and told the judges they should use their best judgment. At this juncture, Judge Greenberg observed for the first, but not the last, time that the Sixth Circuit's ruling looked very broad to him (and the remark was not said in approvingly). Katsas concluded his initial presentation by remarking that deportees retain the same rights whether their deportation hearings are open to the public or not. He also used the word panoply, but pronounced it as though it rhymed with -- and had the same number of syllables as -- the word monopoly.

When Gerlernt took the podium to begin his argument for the media seeking affirmance of the trial court's ruling, which had invalidated the INS's blanket closure order, Chief Judge Becker promptly questioned him about how the detainees aren't harmed by the closure because they retain the same rights in the deportation proceeding as they had before. Next, Chief Judge Becker launched into a very important area, asking whether the court could take into account not only the alleged positive effects of opening the hearings but also the alleged adverse effects, and whether it was proper for the court to defer to senior government counterintelligence experts in the war on terrorism. At this juncture, Judge Greenberg began to share his views of the case, stating "People may die, lots of people, if we're wrong. You want us to run that risk. How can we do that?" Judge Greenberg explained that he was working from home on September 11, 2001 and his wife told him to turn on the television after the first plane had hit the World Trade Center, and now "I can't erase the second hit from my mind." In later questioning, Chief Judge Becker noted that the government was arguing that deciding closure on a case-by-case basis would be unsafe and may cause critical information to be revealed to this Nation's enemies. Toward the end of Gerlent's time at the podium, Chief Judge Becker asked him "Why in a national security context in the war against terror can't a court defer to senior administration officials who face political accountability? Why is the sky falling in this context to permit closure in this narrow category of cases?" Shortly thereafter, Judge Greenberg revealed that he found the Sixth Circuit's ruling so unpalatable that he could barely read past its assertion early in the opinion that "Democracies die behind closed doors." According to Judge Greenberg, our Nation's Constitutional Convention was closed, even though the public had much more interest in what was going on behind those closed doors than what is going on in the special-interest deportation hearings. And what happened behind the closed doors at the Constitutional Convention did not kill a democracy; rather, it gave birth to one.

In his short rebuttal argument, Katsas noted that the harm shown in the record if these proceedings are opened to the press and the public is "potentially catastrophic." Instead of adopting the Sixth Circuit's aphorism that "Democracies die behind closed doors," the Third Circuit should remain mindful of the aphorism from World War II that "loose lips sink ships."

Although basing a prediction of an appeal's outcome on an appellate oral argument is an exercise fraught with risk, the friendly reception the government's arguments received, when compared with the rather frosty and quite skeptical reception the media's arguments received from Chief Judge Becker and Judge Greenberg, leads me to conclude that the government is likely to obtain a reversal of the district court's ruling that struck down the blanket closure order as unconstitutional. If that happens, the stage will be set for U.S. Supreme Court review, which is nearly certain to follow. Today's Third Circuit panel made only one promise, which was that it would do its best to issue a ruling as promptly as possible. Judge Greenberg is probably the most rapid opinion writer on today's three-judge panel, and if he writes the opinion the decision very likely will bring good news for the government.
Posted at 22:38 by Howard Bashman



He fought the good fight on behalf of federal common law and lost: Today's edition of The New York Times reports the death of Aaron L. Danzig, "a lawyer who served as counsel to the losing side in Erie Railroad Co. v. Tompkins, the landmark 1938 Supreme Court case" that requires federal courts to apply state law to decide cases pending in the federal court system that do not arise under federal statutory or constitutional law.
Posted at 22:01 by Howard Bashman



The long arm of the law: Congratulations to law blogger Denise Howell, whose article reporting on a significant recent California Supreme Court oral argument involving personal jurisdiction and the Internet has been published at LLRX.com.
Posted at 21:48 by Howard Bashman



Care for another summary of the current state of the U.S. Supreme Court's sovereign immunity/Eleventh Amendment jurisprudence? If so, then you don't want to miss this ruling issued today by the U.S. Court of Appeals for the Seventh Circuit. In its ruling, the Seventh Circuit affirms a district court decision which held that Congress validly abrogated Eleventh Amendment immunity when it extended Title VII to the States.
Posted at 21:35 by Howard Bashman



Ninth Circuit en banc panel votes 7-4 to set aside a death sentence imposed in Nevada: An eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit today voted 7-4 to set aside a defendant's death sentence imposed in a Nevada trial court. You can access the Ninth Circuit's ruling, which totals eighty-seven pages, at this link.
Posted at 21:28 by Howard Bashman



"Justice Dept. Enters Judicial Nominee Fray": You can access The Associated Press's article of this evening bearing that headline at this link. Also worth a look is a very interesting report entitled "Some of the False Attacks on Michael McConnell," compiled by Douglas Laycock, Professor of Constitutional Law, The University of Texas School of Law at Austin. You can access the report at this link. The report will cause you to conclude that many of the falsehoods that opposition groups have been spreading about McConnell are quite remarkable. The Senate Judiciary Committee tomorrow morning will hold a hearing to consider the nomination of McConnell to serve on the U.S. Court of Appeals for the Tenth Circuit.
Posted at 21:13 by Howard Bashman



Sorry Sixth Circuit, but the Third Circuit's likely to disagree with you on a very important matter: Just returned from this afternoon's Third Circuit oral argument in North Jersey Media Group, Inc., et al. v. John Ashcroft, etc., et al., which concerns the press's challenge to the blanket closure of INS hearings in post-9/11 terror detainee cases. I predict based on today's oral argument that the Third Circuit will uphold the lawfulness of that closure, thus creating a conflict with the recent Sixth Circuit ruling that struck down the closure to widespread acclaim in the press. I will provide a much more extensive report later this evening, but I wanted quickly to set forth my conclusion. For more details, you can access here my recent preview of today's oral argument.
Posted at 16:31 by Howard Bashman



Pro-McConnell op-ed in today's LATimes: Dean Douglas W. Kmiec of the Catholic University School of Law has a pro-Michael W. McConnell op-ed in today's edition of The Los Angeles Times. The op-ed, which you can access here, is entitled "The Judiciary Committee as Political Killer."
Posted at 10:18 by Howard Bashman



Would you like some fresh ground pepper with that? CNNSI reports here that the fourth quarter of last night's Philadelphia Eagles trouncing of the Washington Redskins was disrupted by police use of pepper spray in the stands, which wafted onto the field, making a number of Eagles players ill.

The report reminds me of one of my worst mass transit commuting experiences during my over ten years of riding a SEPTA commuter train from northwest of Philadelphia into the city each weekday. One night a few years back I had to work really late at the office, and at that time of night trains heading to where I live depart only once an hour. I caught the train departing center city Philadelphia at 10:50 p.m. A few stops later, a group of boisterous young women boarded the train at a stop in a less than pleasant area of town. They sat together at the opposite end of the car in which I was riding, and they were quite loud. About five minutes later they became loud in another way -- instead of talking and talking they began coughing, coughing, Coughing and COUGHING! And, soon, a handful of other people sitting between me and them started coughing too. Which led one of the women to say "sorry, I set off my mace." When the cloud of mace finally reached my end of the train car, it had dissipated quite a bit, but I too felt stinging in my eyes and did a little bit of coughing. That was quite a night -- working really late at the office, followed by getting maced as a result of riding the train home. (Click here to see a photo of a ceremonial mace.)
Posted at 08:54 by Howard Bashman



Michael W. McConnell and Miguel A. Estrada: The Senate Judiciary Committee's hearing for Tenth Circuit nominee Michael W. McConnell will occur tomorrow, Wednesday, September 18, 2002. Although it appeared for a while that Senator Edward M. Kennedy would chair the McConnell hearing (which could have proved interesting), it now looks like Committee Chairman Senator Patrick J. Leahy will chair the hearing. I received several emails yesterday pointing out that a remarkable assortment of liberal legal academics support McConnell's confirmation. That wasn't news to me, but if it's news to you then be sure to click here, here, or here for evidence and additional details. As Jeffrey Rosen explained writing in The New Republic, "McConnell is one of the most respected conservative legal scholars in the country--which is why distinguished liberal and moderate scholars such as Laurence Tribe of Harvard, Akhil Amar of Yale, and Cass Sunstein and David Strauss of the University of Chicago support his nomination." At the risk of unfairly piling on, let me close by noting that the organization known as The Committee for Justice yesterday issued this report in support of McConnell's confirmation.

D.C. Circuit nominee Miguel A. Estrada's Judiciary Committee hearing appears likely to occur next week, to be chaired by Senator Charles E. Schumer (D-NY). You can access a profile of Estrada prepared by The Latino Coalition at this link. As I have previously explained, both McConnell and Estrada are exceptionally well-qualified to serve as federal appellate judges.
Posted at 00:53 by Howard Bashman



Things that make you go hmm: The U.S. Court of Appeals for the Eighth Circuit yesterday decided the appeal of an individual with the last name of Piggie who had pled guilty to to one count of conspiracy to commit mail and wire fraud and one count of failure to file an income tax return. He was appealing, among other things, the calculation of the restitution award that the trial court had ordered him to pay. The appellate court affirmed, calling to mind the final line of a certain children's rhyme. (This post's title courtesy of C&C Music Factory.)
Posted at 00:42 by Howard Bashman



The death penalty and borderline mental retardation: A unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit yesterday vacated an Alabama death sentence due to the ineffective assistance of counsel the defendant received during the sentencing phase of the trial and due to the defendant's borderline mental retardation. You can access here the court's ruling.
Posted at 00:31 by Howard Bashman



Monday, September 16, 2002
News round-up for Monday, September 16, 2002: The U.S. Supreme Court refused today to block a massive asbestos trial due to get underway soon in the West Virginia state court system, The Associated Press reports here.

Adam Liptak, in Monday's edition of The New York Times, reports on the early consequences in Arizona and other affected States of the Supreme Court's ruling in Ring v. Arizona that juries, rather than judges, must decide whether to impose a death sentence on a criminal defendant. You can access my coverage of Ring, written on the night of that decision's issuance, at this link.

Short takes: Elsewhere today, the NYTimes reports that "Guantanamo Bay faces sentence of life as permanent U.S. prison." The Christian Science Monitor reports here on how the University of California is boosting racial diversity without affirmative action. And, The Washington Post reports that the Senate Judiciary Committee's rejection of Fifth Circuit nominee Priscilla R. Owen may help the candidacy of the Republican U.S. Senate candidate from Texas, John Cornyn (and see also this Wall Street Journal editorial available at Cornyn's Web site making the very same point).
Posted at 23:53 by Howard Bashman



CBS still could take a beating for having aired "Beating of Reginald Denny" video: The U.S. Court of Appeals for the Ninth Circuit today reinstated a copyright infringement suit against CBS Broadcasting, Inc. for having aired a videotape of Reginald Denny's beating. As Circuit Judge Diarmuid F. O'Scannlain's majority opinion explains:
In this age of television news, it is frequently the image accompanying the story that leaves an event seared into the viewership's collective memory. The riots that shook Los Angeles in April 1992 are bookended by two such images: the footage of police officers beating motorist Rodney King, which led to the trial and verdict that sparked the rioting, and the footage of rioters beating truck driver Reginald Denny, which through television synecdoche has come to symbolize in a few moments the multiple days of violence that swept over the city. The latter image gives rise to this litigation, the latest installment in a series of suits by which the owners of the rights to that videotape have sought to ensure that renown translates into remuneration.
The entire opinion is well-worth a look, as it provides further evidence (see my earlier post here) that Judge O'Scannlain is among the federal appellate judiciary's best writers and thinkers.
Posted at 23:46 by Howard Bashman



Today's second most significant federal appellate ruling -- Ninth Circuit rejects use of auctions to choose class counsel in PSLRA class actions: The U.S. Court of Appeals for the Ninth Circuit today ruled that the Private Securities Litigation Reform Act does not give a federal district judge the right to reject as lead plaintiff in a proposed PSLRA class action the party that sustained the largest alleged loss simply because that party is represented by a law firm that likely will cost more than other law firms that are willing to represent other parties who have suffered smaller losses. You can access here the Ninth Circuit's unanimous opinion, written by Circuit Judge Alex Kozinski.

After today, the law firm of Milberg Weiss Bershad Hynes & Lerach LLP will no longer need to hire advertising firms; it will instead be able to use pages 17 through 19 of today's Ninth Circuit opinion.

On a more serious note, today's Ninth Circuit ruling may (pardon the class action pun) sound the death-knell for auctioning the position of plaintiff's class counsel. In the December 2001 installment of my monthly appellate column (which you can receive via email each month by taking a moment to sign-up here), I registered my opposition to the concept of auctioning the role of plaintiff's class counsel in the course of reviewing the draft report of the Third Circuit's Task Force on the Selection of Class Counsel. (More recently, that Task Force's final report has issued, and you can access it here.) The importance of today's ruling was, of course, not lost on Jason Hoppin of The Recorder, who filed this report on the decision, which will appear in tomorrow's edition of that publication.

My favorite passage of Judge Kozinski's opinion had a religious flavor to it, which was fitting for an opinion issued during Yom Kippur: "We start, as always, with the language of the applicable statute, in this case 15 U.S.C. sec. 78u-4(a). While this section contains a number of requirements, it is neither overly complex nor ambiguous; we need be neither Talmudic scholars nor skilled in the use of Urim and Thummin to construe it." To learn more about the Urim and Thummin, click here and here.
Posted at 23:13 by Howard Bashman



Today's most significant federal appellate ruling -- Seventh Circuit allows Indiana's abortion informed consent statute to take effect: Today, a divided three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued a very important abortion-related ruling. Circuit Judge Frank H. Easterbrook, joined by Circuit Judge John L. Coffey, reversed a federal district court's injunction that for the past seven years had barred from taking effect the following Indiana statute:
An abortion shall not be performed except with the voluntary and informed consent of the pregnant woman upon whom the abortion is to be performed. Except in the case of a medical emergency, consent to an abortion is voluntary and informed only if the following conditions are met:

(1) At least eighteen (18) hours before the abortion and in the presence of the pregnant woman, the physician who is to perform the abortion, the referring physician or a physician assistant (as defined in IC 25-27.5-2-10), an advanced practice nurse (as defined in IC 25-23-1-1(b)), or a midwife (as defined in IC 34-18-2-19) to whom the responsibility has been delegated by the physician who is to perform the abortion or the referring physician has orally informed the pregnant woman of the following:

(A) The name of the physician performing the abortion.
(B) The nature of the proposed procedure or treatment.
(C) The risks of and alternatives to the procedure or treatment.
(D) The probable gestational age of the fetus, including an offer to provide:

(i) a picture or drawing of a fetus;
(ii) the dimensions of a fetus; and
(iii) relevant information on the potential survival of an unborn fetus;
at this stage of development.
(E) The medical risks associated with carrying the fetus to term.

(2) At least eighteen (18) hours before the abortion, the pregnant woman will be orally informed of the following:

(A) That medical assistance benefits may be available for prenatal care, childbirth, and neonatal care from the county office of family and children.
(B) That the father of the unborn fetus is legally required to assist in the support of the child. In the case of rape, the information required under this clause may be omitted.
(C) That adoption alternatives are available and that adoptive parents may legally pay the costs of prenatal care, childbirth, and neonatal care.

(3) The pregnant woman certifies in writing, before the abortion is performed, that the information required by subdivisions (1) and (2) has been provided.
The majority opinion provided the following summary of the district court's ruling:
By requiring information to be supplied "in the presence of the pregnant woman"--rather than by printed brochure, telephone, or web site--the statute obliges the woman to make two trips to the clinic or hospital. This raises the cost (both financial and mental) of an abortion. On the basis of studies concerning similar laws in Mississippi and Utah, the district court concluded that the higher cost will reduce by 10% to 13% the number of abortions performed in Indiana. Some of these women will travel to states that do not require two trips; others will forego an abortion; some who do have an abortion in Indiana will delay that procedure until the second trimester. These consequences show that the law creates an "undue burden" on abortion, the district judge held.
At the conclusion of his majority opinion, Judge Easterbrook provides the following summary of the court's holding:
For seven years Indiana has been prevented from enforcing a statute materially identical to a law held valid by the Supreme Court in Casey, by this court in Karlin, and by the fifth circuit in Barnes. No court anywhere in the country (other than one district judge in Indiana) has held any similar law invalid in the years since Casey. Although Salerno does not foreclose all pre-enforcement challenges to abortion laws, it is an abuse of discretion for a district judge to issue a pre-enforcement injunction while the effects of the law (and reasons for those effects) are open to debate. What happened in Mississippi and Utah does not imply that the effects in Indiana are bound to be unconstitutional, so Indiana (like Pennsylvania and Wisconsin) is entitled to put its law into effect and have that law judged by its own consequences.
As the conclusion suggests, Judge Easterbrook's majority opinion (at page 7 of the PDF file) contains an interesting attempt to make sense of current U.S. Supreme Court jurisprudence regarding when a facial challenge to a statute can succeed. As Judge Easterbrook explains: "This leaves us with irreconcilable directives from the Supreme Court. The Justices have insisted that courts lower in the hierarchy apply their precedents unless overruled, even if they seem incompatible with more recent decisions. When the Justices themselves disregard rather than overrule a decision--as the majority did in Stenberg, and the plurality did in Casey--they put courts of appeals in a pickle. We cannot follow Salerno without departing from the approach taken in both Stenberg and Casey; yet we cannot disregard Salerno without departing from the principle that only an express overruling relieves an inferior court of the duty to follow decisions on the books."

Judge Coffey's concurring opinion is also worthy of note, although he again employs his annoying habit of italicizing and underlining passages for added emphasis. At least he hasn't resorted to bold for a third dimension of harrumph. The concurring opinion begins with a passionate assault on The Journal of the American Medical Association and, in particular, a study that JAMA did on the type of law in question. To summarize Judge Coffey's lengthy critique of the JAMA study, he writes that "the trial judge's factual findings in this case are based on a faulty study by biased researchers who operated in a vacuum of speculation." Also, Judge Coffey is not likely to win many female fans in Mississippi when he implies that the intelligence of that State's women pales in comparison to the intelligence of women who reside in Indiana:
Mississippi, for example, consistently ranks among the lowest states in the nation in terms of government funding for public schools (48th in 2000). As a result of this lack of funding, products of these schools obviously cannot be as well prepared as their sisters in Indiana to throughly [sic] understand and operate the type of electronic maze of telephonic options (as the district court suggests), particularly when the decision is joined with the life or death decision.
Circuit Judge Diane P. Wood issued a lengthy dissenting opinion that began:
In today's opinion, the majority disregards the standards that were established by the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), for evaluating laws that impose burdens on a woman's right to seek an abortion, and it brushes aside the painstakingly careful findings of fact the district court made in support of the limited preliminary injunction it issued against Indiana's so-called informed consent law, Ind. Code sec. 16-34-2-1.1. The careful reader of the majority's opinion will see that the majority regrets the fact that the Supreme Court held in Stenberg v. Carhart, 530 U.S. 914 (2000), that pre-enforcement challenges of abortion statutes, like the one presently before us, are permissible. Nevertheless, Stenberg is the law of the land and we must follow its direction, including its endorsement of the constitutional standards governing abortion legislation first articulated by the Casey plurality. See Stenberg, 530 U.S. at 921. That direction is by no means the opaque mess the majority accuses the Supreme Court of creating. In my view, the Court has not left us with "irreconcilable directives" nor has it put courts of appeals "in a pickle." Ante at 7. At the most, if we were reviewing legislation in some field unrelated to abortion (or speech), we might be faced with the problems the majority describes. As for abortion regulation, the Court's guidance is crystal clear. In the end, the majority concedes that Stenberg governs, which ought to be enough for present purposes to lead to an affirmance of the district court's grant of the injunction.
You can access all three opinions, which combine to produce a ruling that totals sixty-four pages in length, at this link.

One final interesting fact to ponder -- even if the Seventh Circuit majority is correct that Planned Parenthood v. Casey requires upholding the constitutionality of the Indiana statute in question, since the issuance of that ruling Justice Ruth Bader Ginsburg has replaced Justice Byron R. White on the Court. As the Stenberg decision demonstrates, Justice Ginsburg is a strong supporter of abortion rights, while Justice White never abandoned his view that Roe v. Wade reached the wrong result. Thus, if the Court were to revisit Casey today, the votes may be there to overturn that part of the Casey decision which upheld a Pennsylvania statute similar to the Indiana statute at issue in today's Seventh Circuit ruling. Of course, whether the Supreme Court will have the stomach to revisit the abortion law morass in the current political and global climate remains to be seen. And, moreover, the losing party in the Seventh Circuit still has the option to pursue rehearing en banc before seeking U.S. Supreme Court review.

Update: Based on a passage from the above post, a colleague suggests that I rename my Web log "A third dimension of harrumph." Excellent idea, but I'm afraid this blog is stuck with the name "How Appealing" for better or worse. Anyone else who likes the suggested title can thus feel free to use it, especially if all of your blog posts will appear italicized, underlined, and in bold.
Posted at 21:50 by Howard Bashman



Not satisfied simply to debate stun belts, Supreme Court of California additionally debates usefulness of student law review comments: Attention law professors and law students -- you'll love this. As I explained here back on August 22, 2002, the Supreme Court of California issued a ruling that day making it more difficult for trial courts to require criminal defendants to wear stun belts. Well, last week the majority issued an amendment to its opinion rejecting the following statement from the original dissenting opinion (quote begins at the bottom of page 40 of this PDF file):
As for part III of the majority opinion, courtroom security is a serious business. Were this court to take it seriously, one would hope, with the resources available to us, we could find a better means of informing ourselves than by relying on such secondary sources as a student comment in a law journal (maj. opn., ante, at pp. 15-16, 32, 35) and a Progressive magazine article that bares its heart in its subtitle--Stunning Technology: Corrections Cowboys Get a Charge Out of Their New Sci-Fi Weaponry (maj. opn., ante, at p. 32). A high school student who turned in a research paper with a bibliography like that would be unlikely to get high marks for either the distinction or balance of the authorities cited.
Ironically, last week's amendment also included the dissent's elimination of a wholly gratuitous swipe at St. Mary's University School of Law, located in San Antonio, Texas. Hmm, wonder where that school ranks in the just-released U.S. News and World Report law school rankings. On second thought, I join the dissent in withdrawing the previous sentence of this post.
Posted at 21:29 by Howard Bashman



On December 1, 2002, significant amendments to the Federal Rules of Appellate Procedure take effect: Several very important amendments to the Federal Rules of Appellate Procedure go into effect on December 1, 2002, and I have summarized the three most important changes in my monthly appellate column published April 8, 2002, which you can access here. Perhaps par for the course, the most important change closes some traps for the unwary while seemingly opening others (as I explain in my column), so beware! Those readers who are especially ambitious can access the changes taking effect 12/1/02 to the Federal Rules of Appellate Procedure here and to the Federal Rules of Civil Procedure here. If you'd rather not wait more than five months after publication to hear about an appellate column of mine that may be of interest to you, sign-up here to receive the column each month via email, free of charge, on the second Monday of each month, which is when the column is published in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers.
Posted at 21:14 by Howard Bashman



Tonight on "How Appealing": Two very important federal appellate decisions issued today, along with a few other rulings that are worth mentioning. Plus, stay tuned for an update on the status of two pending federal appellate court nominees, and a round-up of some of the day's other appellate-related news. More details will appear here soon.
Posted at 20:11 by Howard Bashman



Sunday, September 15, 2002
The Tenth Justice: OpinionJournal today published an essay by Solicitor General Theodore B. Olson adapted from a speech he gave to the Federalist Society on Nov. 16, 2001 on the occasion of the Society's first annual Barbara K. Olson Memorial Lecture. You can access his complete remarks here.

Meanwhile, The Salt Lake Tribune reports here that General Olson and five of his predecessors in that post traveled to the J. Reuben Clark Law School of Brigham Young University late last week for a two-day conference in honor of the late former Solicitor General Rex E. Lee. (Via Delaware Law Office.)
Posted at 19:09 by Howard Bashman



Rock the masses, from Madrid to Calabasas: As promised, here is a sampling of the feedback that I received on this month's installment of my monthly appellate column published in The Legal Ingelligencer, Philadelphia's daily newspaper for lawyers. The title of this month's column was "Privately-sponsored educational junkets for federal judges -- should they be a cause for concern?"

Although my call for comments sought both favorable and unfavorable reader reactions (or, in the words of the P.O.D. song referenced in this post's title, "Is that all you got? I'll take your best shot"), this month I received only plaudits. (Kinda reminds me of the month when I wrote a column arguing that well-written appellate briefs are better than the alternative; shockingly, no one wrote back in defense of poorly-written appellate briefs.) So, here's this month's sampling of column-related email:

Someone who has been closely following the issue of privately-sponsored educational junkets for federal judges wrote:
Great column! While Nothing For Free played up the ideological aspects of these trips, [I] would generally agree with you that ideology is not the ultimate issue. Of course, just as a judge is free to read whatever books he or she wishes, a judge is free to attend ideological seminars, provided that he do so on his own time and with his own money.

You've hit squarely on the crux of the issue and raised a point I have not sufficiently considered -- how organizations like LEC and FREE choose which judges to invite. It's an excellent point, and I will have to look into that. Unfortunately, much of the judiciary--as evidenced by Mr. Mecham's letters [see here for more info]--still doesn't see anything wrong with accepting gifts of travel, food and lodging. They seem to view these trips as a perk of the office. That is unfortunate, and as you note it raises questions of impartiality.

Again, I appreciate the balanced and thoughtful work you did on this column.
An experienced appellate attorney based in western Pennsylvania who has a legitimate chance at a Third Circuit nomination wrote:
You make some very good points. But on the whole, I think it better that judges not attend such programs.
And, finally, an attorney friend from Atlanta who is not shy about registering his disagreement with me wrote:
Good column. A good example of drawing the line on impropriety grounds is the Asbestos decision involving the removal of Judge James McGirr Kelly after he was apparently targeted for invitation to a conference where all of [one side's] yet to be named experts would be speaking.
Thanks to everyone who sent comments on this month's column via email and to the many more people who signed-up at this link to receive each month via email, free of charge, my monthly appellate column on the day of its publication (the second Monday of each month).
Posted at 16:49 by Howard Bashman



One plus one equals eleven: My son, who is now in second grade, reports that double-dumb equals stupid and double-stupid equals idiot. I think that's about right. In my initial post of September 7, 2002, I reported how pleased I was that on this blog's six-month anniversary it had already received more than 90,000 page views. Of course, since this blog came into being on May 6, 2002, September 6, 2002 was merely this blog's four-month anniversary. "How Appealing" regrets the oversight, which definitely ranks somewhere between stupid and idiotic. On the bright side, over 90,000 page views in four months is even more impressive than that same number in six months.

While routine subtraction may not be my forte (or maybe it was the fact that both March and May share the same first letter), I have fared much better at spotting other Web logs that are well worth a visit. Here are three: 1. ScrappleFace is what you'd expect to find if The Onion ran a Web log. As an added plus, its name appears to be based on a Pennsylvania Dutch delicacy that you can learn more about here and here. 2. While the debate over whether I am a blogger with multiple talents rages on, the answer is clearly "yes" with respect to PhotoDude. He blogs, and he is an artist with the camera who generously lets you see his work free of charge. 3. Finally, as one of Philadelphia's most rabid Atlanta Braves fans, I'm so pleased I found the blog Braves Journal. All three of these fine blogs, and many more, have recently been added to the links you will find on the left-hand column of this page.
Posted at 14:17 by Howard Bashman



In Sunday's Los Angeles Times: Today's edition of The Los Angeles Times contains an article reporting that "[a] death row inmate who claims there is a computer in his head and a telephone in his shoulder is so mentally ill that the California Supreme Court has appointed a legal guardian for him." The LATimes also notes the recent death of Richard Holmes, "who became a central figure in thwarting a federal challenge to Oregon's Death With Dignity Act." That challenge is now pending on appeal before the U.S. Court of Appeals for the Ninth Circuit.
Posted at 12:35 by Howard Bashman



In Sunday's newspapers: The Washington Post publishes letters to the editor critical of its recent Sunday Magazine cover story on Justice Clarence Thomas. The Post also contains an op-ed by Jeffrey Rosen entitled "Liberty Wins -- So Far; Bush Runs Into Checks and Balances in Demanding New Powers." Today's edition of The New York Times Book Review examines the latest book by Law Professor Alan M. Dershowitz, "Why Terrorism Works: Understanding the Threat, Responding to the Challenge." Relatedly, you can access at this link Richard A. Posner's review, published in The New Repubic, of Dershowitz's latest book, as I first mentioned here.
Posted at 01:36 by Howard Bashman



Next in the Senate Judiciary Committee's hot seat -- Michael W. McConnell: The Senate Judiciary Committee has scheduled the confirmation hearing of Tenth Circuit nominee Michael W. McConnell for Wednesday, September 18, 2002. It is beyond question that McConnell possesses more than adequate qualifications to be a most distinguished federal appellate court judge. And, you'd think that liberals might find encouraging the fact that McConnell early in his career had judicial clerkships with both D.C. Circuit Judge J. Skelly Wright and U.S. Supreme Court Justice William J. Brennan, Jr. In fact, however, liberal groups are vociferously opposed to McConnell's nomination.

You see, he has what they call in the biz a "paper trail," and a most proliferous one at that. McConnell is one of legal academia's most outspoken critics of Roe v. Wade. Note to future federal appellate nominee hopefuls -- it's probably best not to write an op-ed published in The Wall Street Journal entitled "Roe v. Wade at 25: Still Illegitimate." Now certainly nominees may criticize Roe's reasoning, as even Justice Ruth Bader Ginsburg did in her Supreme Court confirmation hearings. But, candidly, McConnell's anti-Roe paper trail far exceeds the little available to opponents of failed Fifth Circuit nominee Priscilla R. Owen, and we saw how so little could be used to such great effect there. Both The National Abortion and Reproductive Rights Action League and People For the American Way are strongly on record as opposing McConnell's nomination (see here and here, respectively).

Ironically, Byron York argued Friday at National Review Online that McConnell's anti-abortion paper trail may make it more difficult for Democrats on the Judiciary Committee to kill his nomination in committee. Byron York can always be counted on to offer an optimistic view at this early stage of the proceedings.

For one thing, McConnell's chances in the committee are greatly helped by the strong support he has from his home-state Senator, Orrin G. Hatch, who serves as ranking Republican on the Judiciary Committee.

For another thing (as Justice Stephen G. Breyer has been known to write), McConnell has been nominated to a seat on the Tenth Circuit. With all respect to the fine people who reside in the States within the Tenth Circuit's geographical boundaries -- Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming -- the Tenth Circuit has managed to stay out of the spotlight in recent years, and perhaps since its inception in 1929. If you take a look at a list of the thirty-four individuals who have served as Tenth Circuit judges since 1929, only one has achieved any degree of nationwide fame, and that is because domestic terrorists blew-up a federal building named in his honor back in 1995. The Tenth Circuit today consists of the following judges in regular active service:
Chief Judge Deanell Reece Tacha; Judge Stephanie K. Seymour; Judge David Ebel; Judge Paul J. Kelly, Jr.; Judge Robert H. Henry; Judge Mary Beck Briscoe; Judge Carlos Lucero; Judge Michael Murphy; Judge Harris L. Hartz; and Judge Terrence L. O'Brien.
Adding Michael W. McConnell's name to the end of that list doesn't seem quite so scary after all, does it? Especially when he will testify this Wednesday that his oath of office as a federal judge will require him to honor and apply as precedent all U.S. Supreme Court rulings -- including Roe v. Wade -- whether he agrees with the rulings personally or not. And it's why I hope that Byron York's optimism proves well-founded, because the confirmation of someone as highly qualified as Michael W. McConnell to serve on an intermediate federal appellate court should not even pose a close question.

Update: Sam Heldman agrees that McConnell is likely to be confirmed, but Sam reserves judgment on whether he favors that outcome. The author of TalkLeft, who resides and practices law in the Tenth Circuit, calls on the Senate to reject McConnell's nomination.

Second Update: Monday's edition of The Los Angeles Times contains this article entitled "Liberals at Odds Over Appeals Court Nominee."
Posted at 00:15 by Howard Bashman



Coming this December, the next film from Spike Jonze: The trailer for Adaptation, starring Nicolas Cage, Nicolas Cage, and Meryl Streep, is now available online here. (Via Deadly Mantis.)
Posted at 00:13 by Howard Bashman



Saturday, September 14, 2002
Jonathan Adler speaks out against the "precautionary principle" in environmental law: You can access here his essay, published yesterday at National Review Online.
Posted at 23:58 by Howard Bashman



Gitmo tightens media restrictions: The Associated Press is reporting today that "[t]he U.S. government has tightened restrictions on media covering the 598 terrorism suspects being held at the Navy base at Guantanamo Bay, Cuba." You can access the full article here.
Posted at 12:46 by Howard Bashman



This evening on C-SPAN's "America and the Courts": This evening's installment of C-SPAN's fine weekly program "America and the Courts," which airs at 7 p.m. eastern daylight time, will broadcast an American Judicature Society symposium held in May 2002 on the role and responsibilities of the Legislative Branch in the selection of federal appellate and trial judges. You can access more details about tonight's program at this link.
Posted at 12:42 by Howard Bashman



Friday, September 13, 2002
Second Circuit examines lawfulness of Bush Administration's refusal to fund foreign organizations promoting abortion as a method of family planning: The U.S. Court of Appeals for the Second Circuit issued an opinion today examining the legality of the federal government's so-called Mexico City Policy, which "expressed the government's disapproval of abortion as an element of family planning programs and set forth various ways in which the government would prohibit its funds from being used to support abortion overseas." The opinion explains that the challenged restrictions originated in August 1984 during the Reagan Administration, then "[t]he Mexico City Policy was rescinded by President Bill Clinton in January 1993, but was reinstated by President George W. Bush in March 2001." You can be sure that any case bearing the caption (or, as my Southern friends might say, "the style") The Center for Reproductive Law and Policy v. George W. Bush is worth a look. You can access the Second Circuit's ruling, which refused to strike down the challenged policy, at this link.
Posted at 23:19 by Howard Bashman



Judge Posner on factual frivolousness: Today Circuit Judge Richard A. Posner, writing for a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, issued an opinion noting that "Sometimes, however, a suit is dismissed because the facts alleged in the complaint are so nutty ('delusional' is the polite word) that they're unbelievable, even though there has been no evidentiary hearing to determine their truth or falsity." In this particular case, Judge Posner writes:
The complaint alleges that on numerous occasions over a span of three years unnamed guards at three different prisons unlocked the door to the plaintiff's cell while he was asleep, allowing inmates to come in and drug and sexually assault him. He slept through all these outrages and only discovered what had happened when one day he noticed a needle mark under his lip. When he visited the prison infirmary to have the mark attended to, the medical personnel claimed not to see the mark because they were trying to make him think that he was delusional.
Later in the opinion, Judge Posner observes that "the primary duty of an appellate court * * * is to maintain the coherence and (reasonable) uniformity, as well as the lawfulness and intelligence, of legal doctrine." Well said, as usual.
Posted at 23:11 by Howard Bashman



Juror who wanted to recover lost wages from the court still seeks to do so: Apparently juror David C. Williamson enjoyed his recent experience with the federal judicial system so much that he can't wait to make a return visit. law.com offers this report on Williamson's latest antics. You can access my prior coverage of this matter at this link.
Posted at 22:59 by Howard Bashman



The U.S. Supreme Court's lunch club is not so secret anymore: Tony Mauro, via law.com, offers a full report, and more, at this link.
Posted at 22:52 by Howard Bashman



A humorous look at a rather astounding PR battle: Scott Graham of The Recorder takes a look at the possible future course of the press release battle between Latham & Watkins and Pillsbury Winthrop. You can access Scott's musings here.
Posted at 22:48 by Howard Bashman



Attention lawyers: If you submit a patently inadequate appellate brief to the U.S. Court of Appeals for the Second Circuit, the court will rule against your client for that reason alone. And if you submit a brief that is inadequate but less obviously so, you remain likely to lose on the merits. Here are some suggestions on how to avoid that fate on appeal.
Posted at 22:35 by Howard Bashman



Congratulating a colleague: "How Appealing" extends hearty congratulations to my law partner Arthur J. Schwab, a former Third Circuit law clerk whom the U.S. Senate today confirmed by a vote of 92-0 to a seat on the U.S. District Court for the Western District of Pennsylvania. Art is an excellent litigator and undoubtedly will be an outstanding federal judge. He is the second law partner of mine to be confirmed by the Senate to sit on that federal district court in the past two months. U.S. District Judge Joy Flowers Conti was the other.
Posted at 22:21 by Howard Bashman



Is veganism a religious creed? In an opinion issued today, the California Court of Appeal, Second District, Division Five, resolves the age-old question of whether veganism is a religious creed. You can access the court's ruling here. Patrons who enjoy this restaurant may disagree with the court's outcome. The California court's opinion notes that a Third Circuit concurring opinion written by former Circuit Judge Arlin M. Adams in 1979 remains "the most influential judicial opinion in the past several decades in terms of defining religion." Coincidentally, the Third Circuit judge for whom I clerked filled the vacancy created when Judge Adams resigned from that court.

Update: Minute Particulars takes a closer look at this ruling.
Posted at 22:10 by Howard Bashman



Courts can too stop terrorism: That's what Dahlia Lithwick argues in her essay published on Slate a few hours ago. And in the tussle between Dahlia and blogger Eugene Volokh, I say advantage Lithwick, because she has managed in her essay to successfully link to Volokh, while he has (at least as of the time of this posting) failed to link to the Lithwick essay he intended (which you can find here) or to any other useful destination. Of course, that's every blogger's worst nightmare -- links that are useless from the start!

P.S. Good news for Zacarias Moussaoui -- the actual twentieth hijacker has been arrested in Pakistan, Reuters reports here. Update: Thanks to the author of TalkLeft for bringing to my attention this article from Saturday's edition of The New York Times reporting that the arrestee in Pakistan and Moussaoui were, according to the U.S. government, each planning to serve as the twentieth hijacker at different times.
Posted at 20:01 by Howard Bashman



Ninth Circuit upholds constitutionality of Military Honor and Decency Act: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld against First and Fifth Amendment challenges the Military Honor and Decency Act, which proscribes the sale or rental of sexually explicit materials on property under the jurisdiction of the Department of Defense. You can access the court's opinion here. Regulations that the military adopted to implement the Act set up a Resale Activities Board of Review to "periodically review materials sold or rented on military property, and any such material it deems sexually explicit is withdrawn from military retail outlets."
Posted at 15:24 by Howard Bashman



A reader comments on the Supreme Court of Georgia's motto: While I was working long hours in Harrisburg earlier in the week, an email arrived from a California-based reader who wished to offer some comments on the Supreme Court of Georgia's motto, "Fiat Justitia, Ruat Caelum," which roughly translates into "Let Justice be done, though the heavens may fall." The email states:
Love the blog.

You're right about GA's judicial motto being cool--but it's also very ironic. During the Petition Crisis of the 1830s, John Quincy Adams routinely attempted to introduce petitions to ban slavery in Washington D.C., or to prohibit its expansion, &c. The Congress, of course, didn't want to hear this at all, so they actually passed a rule prohibiting the introduction of such petitions. JQA, rightly believing this violated the 1st Amendment's petition clause, worked for ten years to get that rule repealed, and was twice censured, and finally almost expelled from Congress. The entire dramatic story is detailed in one of my favorite books, ARGUING ABOUT SLAVERY by William Lee Miller.

At one point, JQA attempted to introduce a petition by a group of people in MA asking for the dissolution of the union. The southerners pounced on this as treachery and treason (which is also ironic in light of subsequent events). In one of the many dramatic moments in the confrontation that followed, someone asked JQA if he was actually encouraging Civil War. JQA bellowed out in his seventy-year old voice, "LET JUSTICE BE DONE THOUGH THE HEAVENS FALL!"

--whereupon he immediately became the hero of all us abolitionists (witness the movie AMISTAD).

That this motto should now be embraced by GEORGIA, whose Congressmen were among those seeking to expel JQA for his sentiment, is delicious.
You can learn more about John Quincy Adams at this link, via The White House Web site.
Posted at 14:44 by Howard Bashman



Examining the right to abortion for U.S. servicewomen based overseas: The New Republic yesterday posted this report online.
Posted at 13:25 by Howard Bashman



Wall Street Journal op-ed compares press coverage of Justice Clarence Thomas and Prof. Cornel West: And the result isn't likely to make conservatives happy. You can access the op-ed here. (Via The Volokh Conspiracy.)
Posted at 13:21 by Howard Bashman



Now pending before the Seventh Circuit -- EEOC v. Sidley Austin Brown & Wood: Thanks to a good friend and former co-clerk, who now practices law in the same city where I attended law school, for sending along a link to this article reporting on the oral argument one week ago today before the U.S. Court of Appeals for the Seventh Circuit in EEOC v. Sidley Austin Brown & Wood. The panel assigned to the case consists of Circuit Judges Richard A. Posner, Frank H. Easterbrook, and Diane P. Wood. You can access the appellate docket sheet at this link. You can access the parties' briefs at this link. You can access an audiotape of the oral argument at this link. How many other federal appellate courts give all this useful information away for free on their Web sites? None by my estimation.
Posted at 13:09 by Howard Bashman



In Friday's Los Angeles Times: Today's edition of The Los Angeles Times contains: an article reporting that the al Qaeda and Taliban detainees held at the Guantanamo Bay U.S. Naval Base in Cuba can look forward to being held there for at least three more years; a wire service article suggesting that Arthur Andersen's criminal conviction is now ready to be appealed to the U.S. Court of Appeals for the Fifth Circuit; a lengthy story reporting that "a Los Angeles Superior Court judge on Thursday swept aside a $78-million jury verdict against the family investment firm of Republican gubernatorial candidate Bill Simon Jr."; a report that a California state prison has, since August 12, 2002, denied visitors to all black inmates held in one of the prison's four cellblocks; and an editorial comparing Tupac and Tookie.
Posted at 08:55 by Howard Bashman



This post was written by a very minor celebrity: A colleague whose office is just down the hall spent yesterday interviewing summer associate candidates on-campus at the University of Pennsylvania Law School. Yesterday evening he sent along the following email:
As unlikely as it sounds, the last interviewee of the day was very disappointed that he was not being interviewed by Howard Bashman. He said he is a big fan of your Web site, and that it is one of his "top 3" sites.
Those attending Los Angeles-based Loyola Law School, and who were hoping to meet an actual law blog celebrity at an on-campus interview, were in luck yesterday. (P.S. to Dahlia L: You wuz right -- it's impossible to write about appellate issues on-line without generating groupies.)
Posted at 08:31 by Howard Bashman



In Friday's newspapers: The Washington Post contains a forceful editorial decrying the Senate Judiciary Committee's rejection of Priscilla R. Owen's nomination to serve on the U.S. Court of Appeals for the Fifth Circuit. Two excerpts: "Do senators really want a confirmation process in which conservatives vote against liberals because they are liberals and liberals oppose conservatives because they are conservatives? And will Democratic senators still want such a process the next time there's a Democratic president and Republicans vote down nominees who dare to support abortion rights?"; and the outcome "sends a message to the public that the confirmation process is not a principled exercise but an expression of political power."

The New York Times reports here that the Foreign Intelligence Surveillance Court of Review has promised to give a copy of its ruling in the wiretap case pending before it to the Senate Judiciary Committee. Whether the public will ever see the ruling apparently remains to be determined.

Friday's edition of The Christian Science Monitor examines, in an article you can access here, the current state of Florida's death penalty law following the U.S. Supreme Court's decision in Ring v. Arizona, which held that juries, rather than judges, must decide whether to impose the death sentence. And, The Monitor reports that the State of California has enacted into law broad abortion-rights legislation.
Posted at 00:33 by Howard Bashman



Thursday, September 12, 2002
They can see no reasons 'cause there are no reasons: Nine days ago I asked the readers of this blog to explain the rationale for why most federal appellate courts don't allow federal district judges sitting by designation on appellate panels to review the rulings of colleagues from their judicial districts. I then wrote, "If you can offer any insights on how this practice began, or whether it makes sense, please send me an email, and I will happily reprint the best responses here." Although I received a bunch of emails in response to my inquiry, none provided any persuasive justification for the practice. Thus, I am led to conclude that it would make sense for other federal appellate courts to follow the Second Circuit's lead and allow a three-judge panel on which a federal district judge is sitting by designation to hear and decide even those appeals that arise from the judicial district in which the district judge serves, unless the appeal arises from a case that the district judge serving on the appellate panel presided over in the trial court. As one of my colleagues observed when I told him recently that my readership had failed to supply any satisfactory explanation for the majority practice, "that's because the practice lacks any persuasive justification." (This post's title is courtesy of The Boomtown Rats.)

Update: Something about this post has struck a chord with Jeralyn of TalkLeft. And let's not overlook Juan Non-Volokh.
Posted at 22:25 by Howard Bashman



Pocket pool: Wow! Two pocket-related federal appellate rulings in one day (scroll down just a bit for the other) -- quick, somebody alert the author of the blog "rebecca's pocket." Today the New York City-based U.S. Court of Appeals for the Second Circuit addressed the question whether "a police officer's reach into [a criminal suspect's] pocket and removal of its contents * * * constitute[d] a reasonable weapons search under the Fourth Amendment." Click here to see how the federal appellate court headquartered closest to Ground Zero resolved this question.
Posted at 22:19 by Howard Bashman



$78 million civil fraud verdict against California GOP gubernatorial candidate's firm is overturned: The Associated Press offers this report on today's ruling.

Update: You can access the ruling here, courtesy of FindLaw.
Posted at 14:23 by Howard Bashman



Is that a sock in your pocket?: It may be difficult to conceive that an opinion the Seventh Circuit issued today -- which starts off noting that when the police frisked the defendant, the police "discovered a sweat sock in his pocket containing twelve bullets" -- concludes with a very interesting discussion of the limits of Congress's Commerce Clause authority under United States v. Lopez, but it's true.
Posted at 14:13 by Howard Bashman



Soda vs. pop: Although it has yet to result in any litigation -- appellate or otherwise -- the nationwide battle over what to call carbonated beverages continues to rage. The Associated Press (via CNN.com) today offers this report. You can register your vote on this disputed matter at this Caltech-hosted Web site.
Posted at 13:38 by Howard Bashman



Don't often see a first line like this in the mainstream press's coverage of an appeal: Yesterday's edition of The Los Angeles Times contained an article that began, "Members of the Burbank City Council are mulling over how far they will go for 'Jesus Christ,' as they consider whether to appeal this week's state appellate court decision upholding a ban on sectarian prayer prior to City Council meetings." You can access the appellate court ruling in question at this link.
Posted at 10:33 by Howard Bashman



A new, hot area of legal practice: Beauty pageant law.
Posted at 10:11 by Howard Bashman



D. Brooks Smith's Third Circuit investiture: Early this morning, in a post you can access here, I asked when D. Brooks Smith is likely to be sworn into service on the U.S. Court of Appeals for the Third Circuit. Someone in the know has emailed: "Judge Smith's investiture ceremony will take place on Monday, September 23d, in Pittsburgh. He has remained on the W.D. Pa. to help that Court while it continues to operate with numerous vacancies. (You'll note that even the three W.D. Pa. judges recently confirmed plus the one awaiting a floor vote will still not bring the Court to full strength.) I'm a regular reader of your blog, and I enjoy it greatly." Thanks for sending along this information and for the kind words.
Posted at 10:08 by Howard Bashman



In Thursday's newspapers: The New York Times contains an editorial criticizing the United States Foreign Intelligence Surveillance Court of Review for meeting in secret and hearing only one side of the controversy in question. Today's edition of The Washington Post includes an article noting that congressional hearings planned for next week on intelligence failures of 9/11 "might provide surprise disclosures or testimony that could affect the trial or give [Zacarias] Moussaoui significant grounds for appeal."
Posted at 06:46 by Howard Bashman



"Privately-sponsored educational junkets for federal judges -- should they be a cause for concern?": That's the title of this month's installment of my monthly appellate column published September 9, 2002 in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers. If you have comments or reactions to this column, please send me an email. I will post all thoughtful comments received -- whether positive, negative, or somewhere in between -- on this blog sometime late this weekend.

I have already received a bunch of favorable comments on this column from people who receive the column via email on the day of its publication (the second Monday of each month). You too can sign-up to receive the column in PDF format each month via email, free of charge, simply by clicking here. Not only, as I reported earlier this week, has a New York Times reporter recently joined the many other subscribers to the email list, but since then so has one of the nation's leading U.S. Supreme Court news correspondents.
Posted at 00:32 by Howard Bashman



Three Third Circuit observations: 1. The U.S. Court of Appeals for the Third Circuit posted to its Web site yesterday an "Order Establishing a Temporary Local Rule for Electronic Filing of Emergency Motions." You can access the order directly at this link. I wonder whether the court dated the order September 11, 2002 as a matter of coincidence or for purposes of symbolism.

2. The Third Circuit's order from yesterday, which bore the names of all of that court's current active judges, also reminds me it may be time to broach the question when will D. Brooks Smith get sworn into service as a Third Circuit judge? As this chart indicates, the full Senate confirmed Smith to a seat on the Third Circuit way back on July 31, 2002. But, for reasons unknown, he has yet to leave his post as Chief Judge of the U.S. District Court for the Western District of Pennsylvania to join the Third Circuit. By contrast, the last federal district judge to be promoted to the Third Circuit, Maryanne Trump Barry, joined the Third Circuit just nine days after her Senate confirmation. This blog's author was a staunch supporter of Chief Judge Smith's nomination to serve on the Third Circuit, so I'm looking forward to seeing him actually take his seat on that court.

3. From time to time someone will ask me who is next in line to be Chief Judge of the Third Circuit once Chief Judge Edward R. Becker completes his term or takes senior status. To figure out the answer, I begin with this chart of current and former Third Circuit judges and this statute setting forth the manner in which the chief judge of a federal appellate court is selected. Circuit Judge Anthony J. Scirica would thus succeed Chief Judge Becker in that post. And, if Judge Scirica serves sufficiently long as chief judge, his successor would be Circuit Judge Samuel A. Alito, Jr. Of course, Judge Alito may be (and certainly deserves to be) on the Bush Administration's short list for nomination to the U.S. Supreme Court, so this assumes he remains on the Third Circuit for a considerable while longer. Having Chief Judge Becker be succeeded by Chief Judge Scirica, who would then be followed by Chief Judge Alito, would give the Third Circuit three most impressive chief judges in a row.
Posted at 00:07 by Howard Bashman



Wednesday, September 11, 2002
Courthouse security finally coming to Pennsylvania state appellate courts: Back on May 23, 2002 I advocated here increased security precautions for Pennsylvania state appellate courts. This article published in today's edition of The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, suggests that Pennsylvania's appellate courts may soon be one large step closer to achieving that goal.
Posted at 22:14 by Howard Bashman



The war on terror and the law: Two things -- First, law.com today contains an interesting, in-depth article from Tony Mauro suggesting that federal courts, in the war on terror, have not been giving the executive branch the amount of deference traditionally seen during wartime.

Second, a case by the name of Chavez v. Martinez, which is currently pending on the merits before the Supreme Court of the United States, may also prove relevant to the war on terror. The petitioner in this case is a California police officer, and his counsel last week filed the Brief for Petitioner. You can access that brief at this link by scrolling down to the entry for the Chavez v. Martinez case. If the link to the brief fails to open properly in your Web browser (which is the very experience I had), you can right-click on the link and download the brief to disk (by selecting "Save Target As"), which allowed me to read the document from my local hard drive using Adobe Acrobat Reader. P.S. For those who enjoy the U.S. Supreme Court as much as I do, take note that the first Monday in October is already less than a month away.
Posted at 21:54 by Howard Bashman



Take it like a man: The U.S. Court of Appeals for the Eighth Circuit today dismissed for lack of taxpayer standing a suit brought by a group of male Minnesota taxpayers who sought a declaratory judgment that their State's statutory scheme for dispersing state and federal funds to assist battered women and victims of domestic abuse is unconstitutional. The men alleged that the statutory scheme discriminated against men in violation of the Equal Protection Clause of the United States Constitution by facilitating the expenditure of millions of dollars to assist battered women, but offering no money to assist battered males. You can access the court's opinion at this link.
Posted at 19:04 by Howard Bashman



An interesting prisoners' rights ruling from the Fifth Circuit: The U.S. Court of Appeals for the Fifth Circuit today issued a decision addressing whether it is constitutional for a state prisoner to be required to choose between having his money earn interest or having his money be available to purchase goods at the prison's commissary. You see, the prison system took the substantial interest earned on the commissary fund and used that interest for itself.
Posted at 18:49 by Howard Bashman



"Terror trials test U.S. legal foundation": That's the headline of an article posted this afternoon at CNN.com.
Posted at 18:33 by Howard Bashman



Not a day on which they are likely to receive much pity: The Associated Press has chosen September 11th as the day on which to report that al Qaeda and Taliban detainees held at the Guantanamo Bay U.S. Naval Base in Cuba are feeling disgruntled because of their continued detention in U.S. military custody.
Posted at 15:20 by Howard Bashman



Third Circuit orders closer look at propriety of death sentence imposed in notorious New Jersey murder-for-hire case: A unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit today issued a 101-page opinion that upholds the murder-related convictions of defendant Robert O. Marshall but requires the federal district court on remand to reevaluate the propriety of the death sentence the New Jersey state court system imposed on him. Circuit Judge Marjorie O. Rendell was the author of the Third Circuit's opinion. The Associated Press has described Marshall as "a man whose murder-for-hire killing of his wife became a best-selling book and television movie." You can access here a July 31, 2002 news account reporting that Marshall had lost his final available state court appeal. The best-selling book in question is Blind Faith by Joe McGinnis.
Posted at 14:58 by Howard Bashman



Appellate judges explain why court is in session this morning: Unlike last September 11th, when I spent the first part of the morning in my office and then the latter part of the morning heading home to be available to look after my son in case his school was dismissed early (in fact, it wasn't), this morning I was in court for an appellate oral argument. Upon taking the bench, the en banc panel explained why court was in session this morning. The president judge stated that terrorists sought to disrupt the functioning of this nation's system of government, and that by continuing to operate today as on any other day the court was through its actions demonstrating that terrorism has failed and never will be allowed to succeed.
Posted at 10:59 by Howard Bashman



As anticipated: Today's edition of The New York Times is not to be missed. It contains: an article by N.R. Kleinfield entitled "Still New York, in All Its Pain and Glory"; an article by Dan Barry entitled "Death as a Constant Companion"; and an op-ed by President George W. Bush entitled "Securing Freedom's Triumph."
Posted at 00:05 by Howard Bashman



Tuesday, September 10, 2002
Noting the death of a man who was "the model of a public-spirited lawyer": A law professor who from time to time contributes his great insight to benefit the readers of "How Appealing" has sent along the following email this evening:
I hope you will call your readers' attention to the obit in this morning's Times for John P. Frank.

John Frank was the model of a public-spirited lawyer. There are not many members of our profession who have lived to see so many of their proteges in high positions. (One of his proteges is now chief judge of the Ninth Circuit.) And "The Marble Palace" is surely one of the most readable books ever written about the Supreme Court.

Among his many other accomplishments - and one of particular interest to your readers - John was one of the organizers of the Advisory Council for Appellate Justice, which pioneered in addressing many of the issues of appellate process and structure that are still with us today.

In an era when so many people take a dim view of the legal profession, it's good to be reminded of the legacy of giants like John Frank.
You can access Adam Liptak's very interesting obituary of John P. Frank, published today in The New York Times, at this link.
Posted at 23:07 by Howard Bashman



Tenth Circuit affirms judgment in excess of $20 million against Southwestern Bell: A divided three-judge panel of the U.S. Court of Appeals for the Tenth Circuit today affirmed a judgment in excess of $20 million against Southwestern Bell Telephone Company in a case concerning alleged monopolization of the pay phone market in Oklahoma. Circuit Judge David M. Ebel wrote the majority opinion, in which Senior District Judge David K. Winder, sitting by designation from the U.S. District Court for the District of Utah, joined. Circuit Judge Paul J. Kelly, Jr. dissented from the decision. You can access both the majority and dissenting opinions at this link.
Posted at 22:54 by Howard Bashman



The Supreme Judicial Court of Massachusetts examines the controversial issue of grandparent's rights: And the result is a 4-3 decision issued yesterday that upholds a state law providing grandparents with visitation rights over a custodial parent's objection in very limited circumstances. The Associated Press offers this report. You can access the opinion online if you are willing to follow these instructions: first, click here; second, select the link for Supreme Judicial Court opinions; and, third, click on the link for the case by the name of Blixt v. Blixt.
Posted at 20:24 by Howard Bashman



The Ninth Circuit upholds a California death sentence today: And it only took a ninety-two-page opinion to do so. Senior Circuit Judge Procter Hug, Jr. wrote the opinion for a unanimous three-judge panel.

Update: Jason Hoppin of The Recorder has written this detailed report on the ruling. And the September 11th edition of The Los Angeles Times contains this article.
Posted at 14:16 by Howard Bashman



The very definition of irony: Turns out that electronic touch-screen voting devices don't work in Florida either. No problem with hanging chads, though.
Posted at 13:46 by Howard Bashman



Lookin' good!: Sometime between yesterday and now the U.S. Court of Appeals for the Ninth Circuit revamped the main page of its Web site, and today it looks quite good! True, the link for opinions isn't working right this second, but maybe that affects no one other than me.

Update: Here's a work-around until the Ninth Circuit gets its new Web site's opinion link working. You can still access opinions the old way via this link (which comes from my Internet Explorer history files).

Second Update: The Ninth Circuit has fixed the broken link to opinions on its new Web site by replacing it with this link that actually works.
Posted at 13:41 by Howard Bashman



How much is $20,000 worth?: Alice W. writes that newly minted lawyers might have to forego the benefits of Philadelphia's current new associate salary wars to work with me. And then she most kindly suggests I may be worth it. I'm not tied in to how, if at all, my law firm will respond to salary increases that other law firms have made, but in the current economy and hiring atmosphere there seem to be more very highly qualified second- and third-year law student candidates than there are available openings. My advice, in a nutshell, is that while I can understand the interest in making the most money possible at all times, young lawyers should remember that one day in the not too distant future their worth will be judged based on their experiences and capabilities. For those reasons, in choosing the firm where I went to work after my judicial clerkship, I sought a firm that handled a great amount and variety of litigation and would be able to offer much cutting-edge appellate work. Fortunately, that provided me with many appellate oral arguments early in my career and a seat at counsel table in the U.S. Supreme Court (in a case in which I was the principal author of petitioners' merits briefs and which my clients won 7-2 via an opinion that stuck close to those briefs) while I was still a mid-level associate. Did I forego some money to get that experience? Probably. Was it worth it? Definitely!
Posted at 13:09 by Howard Bashman



Secret appellate court meets for the first time ever: Well it's technically not an appellate court; rather, it is a court of "review." But, in any event, The New York Times is reporting that the United States Foreign Intelligence Surveillance Court of Review met yesterday in Washington, DC for the first time ever (which is why, not surprisingly, the federal government's brief bears docket number 02-001). Solicitor General Theodore B. Olson delivered the federal government's arguments. Now that I have read the government's brief, I can announce my view the government is likely to win this appeal. Whether we the public will learn the result of the appeal remains to be seen. On a less serious note, there also was no public mention made of whether James Bond, Austin Powers, or Underdog was guarding the door while the appeal was argued. (Thanks, Dahlia!)
Posted at 12:52 by Howard Bashman



Press coverage of yesterday's Ninth Circuit school Bible club ruling: Jason Hoppin of The Recorder has this report, and this article appears in today's edition of The Los Angeles Times (although it's oddly included in the "Nightlife" section of that newspaper's Web site!). You can access here my prior coverage of the ruling.
Posted at 09:27 by Howard Bashman



Here and there: Made it home last night, but this morning it's back to Harrisburg to work further on the same expedited Pennsylvania Commonwealth Court appeal that had me there on Sunday and Monday. Oral argument is scheduled for Wednesday morning, so I could be back home and in my regular office by Thursday. In terms of overall press interest, few Pennsylvania state court appeals would seem to top this one.

This month's installment of my appellate column published yesterday in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, addresses the controversy over privately-funded educational junkets for federal judges. I have already received several very kind emails from readers praising this month's column. It will go online at my law firm's Web site tomorrow, available at this link. Once the column goes online, I will provide an email address to which readers may send comments, and I will reprint here those comments worth sharing. This past Saturday night I posted on this blog a link to subscribe to receive my monthly column via email on the day of its publication, and that led to a bunch of sign-ups, including one from a New York Times reporter whose work I greatly admire.

This year's law clerk reunion, which occurred on Sunday, was excellent. Many clerks brought along their spouses and small children, or grand-clerks as I prefer to call them. One former law clerk suggested that I should get appointed to Pennsylvania's appellate rules advisory committee, on which the suggesting clerk already sits. Another suggested that I become a judge so that she could clerk for me, which I found a bit humorous because she was one of the law clerks who interviewed me when I was being considered for the clerkship that I accepted.
Posted at 07:00 by Howard Bashman



Monday, September 09, 2002
The death penalty and mental retardation argued before Georgia's highest court: law.com has this report about an oral argument that occurred today in the Supreme Court of Georgia (which still has one of the coolest judicial mottos around).
Posted at 22:08 by Howard Bashman



U.S. Supreme Court not as Ruthless as predicted: Early on the morning of Thursday, September 5, 2002, someone with whom I had never previously corresponded sent along an email drawing my attention to a post made late the night before on the Greedy Clerks Board predicting that U.S. Supreme Court Justice Ruth Bader Ginsburg would announce her retirement on Monday, September 9, 2002. If that were credible, it would certainly would have been worth mentioning here right away. But there was no indication that the post was true, and later on the morning of September 5th a different post made by a different contributor swore that the retirement rumor was false. Because I don't desire to have this blog serve as a source for unsubstantiated rumors, I never mentioned the retirement post until now, after it obviously has proved false. In contrast, last Thursday's edition of James Taranto's Best of the Web Today, which runs on OpinionJournal, mentioned the rumor. I have the utmost respect for Taranto, who runs a consistently fine site and whose writing often drips with irony (as his headline "A Ruthless Supreme Court?" exemplifies). On this occasion, however, it would have been much more prudent for him to have ignored the rumor instead of spreading it such a substantial extent further.
Posted at 21:38 by Howard Bashman



Online from The Associated Press: The AP is reporting that 250 corporate defendants in a huge consolidated asbestos liability case pending in the West Virginia state court system have asked the Chief Justice William H. Rehnquist for an emergency stay pending a decision on the companies' petition for writ of certiorari that seeks full U.S. Supreme Court review. The AP today also offers two Pledge of Allegiance-related articles. First, "President Bush and Education Secretary Rod Paige want school children across the nation to put their pencils down, put their hands over their hearts and join them next week in a national recitation of the Pledge of Allegiance" scheduled for 2 p.m. eastern daylight time on September 17, 2002. Even children who attend public school in the Ninth Circuit will be able to take part. The second AP article on this topic takes a more direct look at the aftermath of the Ninth Circuit's ruling in the Pledge of Allegiance case.
Posted at 21:18 by Howard Bashman



Transcripts of The Federalist Society's recent panels on judicial decisionmaking: The August 2002 edition of The Federalist Society's journal Engage is now available online at this link. The publication includes transcripts of four panels on judicial decisionmaking that met during the Society's 2001 National Lawyers Convention. Included on the panels were a number of distinguished federal judges, appellate lawyers, and law professors.
Posted at 17:43 by Howard Bashman



Did feminists betray that cause when opposing the nomination of Priscilla R. Owen?: Kay R. Daly of Coalition for a Fair Judiciary argues that the answer is "yes" in an essay published today at National Review Online.
Posted at 17:39 by Howard Bashman



Is being born in the USA sufficient to make one a citizen of this nation?: Here's an essay which takes the position that the Fourteenth Amendment to the U.S. Constitution has been "misinterpreted in recent years to mean simply that anyone born in the U.S, under any circumstances, is an American citizen." The author goes on to suggest that the understanding he proposes would have some beneficial consequences in the war against terrorism.
Posted at 17:33 by Howard Bashman



A ruling that might make Haagen-Dazs nuts: The U.S. Court of Appeals for the Seventh Circuit today issued a decision that holds Haagen-Dazs liable to pay nearly $1 million to SNA Nut Company for the ice cream maker's breach of supply contracts involving almonds, walnuts and madacamia nuts.
Posted at 17:26 by Howard Bashman



Bible clubs in the Ninth Circuit: A partially divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled today that a Washington State school district violated either federal statutory law or the First Amendment when the district denied a high school student's Bible club the same rights and benefits as other student clubs and refused to allow the Bible club equal access to school facilities on a religion-neutral basis. Circuit Judge Kim McLane Wardlaw wrote the majority opinion, in which Senior Circuit Judge Cynthia Holcomb Hall joined. Judge Hall also wrote a separate concurring opinion. Circuit Judge Marsha S. Berzon wrote an opinion concurring in part and dissenting in part. You can access all three opinions at this link.
Posted at 15:28 by Howard Bashman



"We know where you live": The U.S. Court of Appeals for the Sixth Circuit today issued an order denying rehearing en banc accompanied by an interesting dissenting opinion from Circuit Judge Danny J. Boggs. The dissent explains that the case involves an Akron, Ohio ordinance that "has a feature that appears not to exist in any other litigated campaign regulations statute: it requires everyone who wants to contribute to a political candidate to reveal his or her home address." As Judge Boggs notes later in his dissenting opinion, "The very fact that 'we know where you live' is a commonplace expression, implying coercion, in movies and the general culture, shows the vast difference between a mailing address (which could be a commercial establishment or Post Office box listing), and the revelation of one's home location and its connection to an unpopular political cause." You can access the Sixth Circuit's divided original three-judge panel ruling in this case, which will now stand as that court's final word in the matter, at this link. Circuit Judge Ronald Lee Gilman dissented from the panel's ruling on the same disclosure of home address issue that was the subject today of Judge Boggs's dissent.
Posted at 15:09 by Howard Bashman



"Environmentalists say Hatch trying to load courts": That's the headline of an article published in today's edition of USA Today. The article reports that Community Rights Counsel is objecting to the nomination of Lawrence J. Block, who since 1994 has served as Republican Senior Counsel to the Senate Judiciary Committee, to fill a vacancy on the United States Court of Federal Claims. The USA Today article is incorrect in asserting that "The fight over Block is part of a long-standing battle over the ideology of judges who have lifetime appointments." As explained here, the Court of Federal Claims is an Article I -- not an Article III -- court, and its judges are appointed to serve only fifteen-year terms.
Posted at 08:36 by Howard Bashman



Today's FindLaw columnists address -- what else? -- the war on terror and the law: You can access Law Professor Marci A. Hamilton's essay here, and you can access an essay by law student Jake Kreilkamp here.
Posted at 07:58 by Howard Bashman



Elsewhere in Monday's newspapers: The Washington Post today reports that "after a respectful pause, lawyers line up to sue" based on the events of 9/11. Today's Los Angeles Times contains an editorial entitled "Congress, Courts: Step In -- Overreaching by the executive branch is tipping the balance away from protecting Americans' precious freedoms."
Posted at 07:54 by Howard Bashman



Conflict of interest charges raised in pro-tobacco Second Circuit ruling: Today's edition of The Los Angeles Times reports that U.S. District Judge Lewis A. Kaplan of the U.S. District Court for the Southern District of New York "had represented Brown & Williamson Tobacco Corp. as a private attorney during the 1970s and '80s" and "participated in meetings of the Committee of Counsel, the inner sanctum of top tobacco lawyers that mapped the companies' joint legal and political strategies--including how to temper government action on tobacco smuggling." The article goes on to report that Kaplan recently sat by designation on a three-judge panel of the U.S. Court of Appeals for the Second Circuit that "gave the tobacco industry one of its biggest legal victories in recent years--a ruling upholding dismissal of Canada's cigarette smuggling case against R.J. Reynolds Tobacco Holdings Inc." You can access here the Second Circuit's majority opinion in that case. The article notes that not only did Kaplan participate in the appeal, but he failed to disclose to the parties his prior work as a tobacco defense lawyer. The article goes on to explain, however, that "legal experts contacted by The Times said the circumstances of the case did not require Kaplan to disclose his former ties or disqualify himself." You can access the LATimes article at this link.

Update: A reader with particular insight into these matters has emailed to remind me that the U.S. Supreme Court on April 1, 2002 issued a per curiam opinion reversing the Fifth Circuit's decision that had recused a federal district judge who had some quite tenuous ties to plaintiffs'-side tobacco liability litigation. The email goes on to note, "Most interesting is that the tobacco industry filed a brief vehemently arguing that any appearance of bias in these sorts of cases called for disqualification."
Posted at 07:47 by Howard Bashman



Sunday, September 08, 2002
Senate Judiciary Committee to hold hearings next for Miguel A. Estrada and Michael W. McConnell: I am reliably advised that the Senate Judiciary Committee in the next few weeks will hold hearings for two more federal appellate court nominees whom President Bush first nominated way back on May 9, 2001. Word is that the Democrats on the Committee have chosen Senator Charles E. Schumer (D-NY) to chair the rapidly approaching hearing for D.C. Circuit nominee Miguel A. Estrada, and that certainly promises to be interesting. I don't yet know who will chair the hearing for Tenth Circuit nominee Michael W. McConnell. Both of these nominees are exceptionally well-qualified to serve as federal appellate judges, a point that I first made at the close of the June 2001 installment of my monthly appellate column. Whether these candidates' exceptional qualifications will prove sufficient to gain them Senate confirmation, of course, remains to be seen.
Posted at 21:26 by Howard Bashman



Special section of The New York Times promised for September 11, 2002: Inserted with today's home delivery copy of The New York Times was a letter from the newspaper's senior vice president for circulation stating:
This Wednesday's New York Times will include a special section exploring the deep changes our nation has undergone since the tragic events of Sept. 11, 2001. This section will culminate four days of 9/11 related coverage, which begins in today's paper.

As a service to our subscribers who do not receive weekday delivery, we will include delivery of The Times on Wednesday, Sept. 11, as part of your normal subscription.
Kicking off that coverage, today's edition of the NYTimes contains a lengthy front page report entitled "Feeling Secure, U.S. Failed to Grasp bin Laden Threat."
Posted at 21:08 by Howard Bashman



State capitals for $200, Alex: What is Harrisburg? It's where you'll find me later today and most of Monday, because my assistance is needed on an expedited appeal in a state court appellate matter arising from a case that has received local, national, and international press attention over the past week. I was planning to be in the Harrisburg region anyway this afternoon to attend the annual gathering near Hershey, Pennsylvania of law clerks to Third Circuit Judge, and before that Pennsylvania Supreme Court Justice, William D. Hutchinson. Although Judge Hutchinson passed away several years ago, his widow has graciously continued to host these events, and quite an impressive turn-out among a most impressive group of former law clerks is expected. I had the honor of speaking on behalf of Judge and Justice Hutchinson's former law clerks at a recent ceremonial en banc session of the U.S. Court of Appeals for the Third Circuit at which his portrait was presented to that court, and anyone interested in learning more about this exceptionally fine jurist can access my remarks at this link. Because I will be working out of my law firm's Harrisburg office while I am away, blogging should continue as normal for the rest of today and tomorrow.
Posted at 00:39 by Howard Bashman



In Sunday's New York Times: Seventh Circuit Judge Richard A. Posner and other distinguished Americans offer their views on an America transformed; and Linda Greenhouse reports on the Imperial Presidency vs. the Imperial Judiciary.
Posted at 00:25 by Howard Bashman



Saturday, September 07, 2002
Expect nothing and then you won't be disappointed: John Scalzi's "Whatever" column for September 6, 2002 asks whether blogging "will finally become a viable way for a writer to make money." As one of the fortunate few to parlay a Web log into a paid writing gig -- remember this, and there's probably more to come -- I can't resist offering my views.

First off, take a look around. "How Appealing" asks you for nothing. There's no PayPal tip jar, no Amazon wish list. I don't want your money or your gifts. If you want to give me something in return for this Web log, give it instead to someone who really needs it and drop me an email describing your good deed. I don't begrudge those who try to make money or get stuff in exchange for blogging, but my day job pays me just enough money that I don't need any more money or things from you my readers -- but thanks anyway.

Perhaps this is my long-winded way of saying that being an appellate lawyer is probably one of the best jobs someone who likes to write persuasively and think critically can have. This Web log is tons-o'-fun, but what I like to do even more is write appellate briefs. See for example, this one in which the Third Circuit appointed me to serve as Amicus Curiae on appeal in support of an en banc district court order, issued over multiple dissents, suspending from the practice of law for three years the brother of a federal judge who sits on that same district court. Or see this brief in a pro bono case in which I accepted the Third Circuit's appointment to represent a state prisoner whose appeal involved an issue that was the subject of a pre-existing split among other federal appellate courts and in which my client's adversary remarkably agreed in its appellate brief that the conflict should be resolved in my client's favor.

The enjoyment I get from practicing as an appellate lawyer, and the income that brings me, could not be replaced by becoming a professional writer or even by becoming a law professor. So, don't look for this Web log ever to replace my day job. This will remain a strictly amateur effort, although hopefully not unbearably amateurish on too many occasions.
Posted at 23:57 by Howard Bashman



A preview of the Third Circuit's version of the press's challenge to the blanket closure of INS hearings in post-9/11 terror detainee cases: At 2:30 p.m. on Tuesday, September 17, 2002, the U.S. Court of Appeals for the Third Circuit will hear oral argument in North Jersey Media Group, Inc., et al. v. John Ashcroft, etc., et al., a case in which the press challenges the legality of the U.S. Department of Justice's blanket closure of INS hearings in post-9/11 terror detainee cases. Of course, late last month the U.S. Court of Appeals for the Sixth Circuit declared that very same blanket closure to be unconstitutional, but the Sixth Circuit's ruling in no way binds the Third Circuit in its consideration of the identical issue.

Indeed, as I shall explain momentarily, there is good reason for the federal government to be much more encouraged about the result it could achieve in the Third Circuit. But first, I hope to attend this oral argument myself if my schedule permits, and if any of my friends in the press find themselves traveling to Philadelphia that day, I would be more than happy to try to arrange to meet for lunch before the argument or maybe for a quick drink after to share views on what took place. I am very familiar with all three Third Circuit judges assigned to the panel that will hear this appeal.

The Third Circuit panel hearing the government's appeal in this matter consists of Third Circuit Chief Judge Edward R. Becker, Circuit Judge Anthony J. Scirica, and Senior Circuit Judge Morton I. Greenberg. All three judges were appointed to the Third Circuit by President Ronald Reagan. All three judges are incredibly smart and would qualify for selection were I fielding a team of the best appellate judges the federal judiciary has to offer. Of the three, Judge Greenberg is probably the most politically conservative. Judge Scirica is a bit more soft-spoken and moderate. Chief Judge Becker is probably the least politically conservative of the three. But the Third Circuit panel assigned to this case is nowhere near as politically liberal as the panel that heard and decided the same case in the Sixth Circuit.

Gregory G. Katsas of the U.S. Department of Justice argued the government's case in the Sixth Circuit, and (if memory serves) he is a former law clerk to Chief Judge Becker. Katsas then went on to clerk for one of the U.S. Supreme Court's more conservative Justices. So, I don't necessarily expect to see the federal government's attorney receive the same rough treatment in the Third Circuit that he reportedly received at oral argument in the Sixth Circuit.

An oral argument at which Chief Judge Becker presides is one at which preordained time limits can be entirely disregarded. Chief Judge Becker loves oral argument and seldom fails to give attorneys generous extra time to argue points at the podium. These three Third Circuit judges seldom pull any punches at oral argument, which is another way of saying that I expect those who observe the argument with an experienced eye to get a reliable feel for how the Third Circuit is likely to rule based on what the judges have to say. I will of course provide a complete roundup of the oral argument on September 17th after it occurs.
Posted at 23:41 by Howard Bashman



USA Patriot Act provides more privacy rights than previously existed?: Today's edition of The New York Times contains an article explaining how that might very well be so.
Posted at 23:19 by Howard Bashman



If you're tired of the Priscilla R. Owen controversy, don't read this post: The statements of several Senators at the Senate Judiciary Committee's vote on rejected Fifth Circuit nominee Priscilla R. Owen are available at this link. You can access the statements of other Senators, made on the floor of the full Senate after the Judiciary Committee's rejection, by clicking here and selecting items fifteen and nineteen from the list. To see all of item nineteen, it is also necessary to select "full display" on the result you receive upon clicking on the link for that item.
Posted at 23:12 by Howard Bashman



Back at the Supreme Court of Texas: law.com reports that the Supreme Court of Texas recently upheld a jury's finding that a cable television host defamed a trial judge when the host called the judge corrupt and otherwise subjected the judge to a torrent of harsh criticism and false accusations. You can access the article from law.com at this link.
Posted at 23:05 by Howard Bashman



And speaking of needles in a haystack: The Associated Press late yesterday had a news story about the large quantity of requests for review -- formally known as petitions for writ of certiorari -- that pile up at the U.S. Supreme Court over the summer months. Some of them arise from cases that are a bit unusual, this second AP item observes.
Posted at 22:58 by Howard Bashman



Zacarias Moussaoui given sensitive prosecution documents -- by accident!: CNN.com provides this report. Fortunately, the report says that the government has dumped such a large volume of non-sensitive information on Moussaoui that the alleged twentieth hijacker probably never knew of the government's error, which has since been rectified by removing the sensitive material from Moussaoui's possession.
Posted at 22:51 by Howard Bashman



More to come: I have seven more topics to blog about before turning in for the night, but now it's time to watch a DVD of the 1995 film "Devil in a Blue Dress," starring Denzel Washington.
Posted at 20:04 by Howard Bashman



The controversy over privately-sponsored educational junkets for federal judges: My appellate column addressing the controversy over privately-sponsored educational junkets for federal judges will be published in the print edition of The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, on Monday, September 9, 2002. Although many months my appellate column goes online at Pennsylvania's version of law.com the Friday before its appearance in print, that has not happened this month. Instead, it appears that site isn't posting columns online until the night after they appear in the newspaper. Of course, some months my column never appears online at law.com/pa, and I have given up trying to figure out what rhyme or reason explains why -- except to rule out the possibility that I'm to blame, especially since the site still prominently features my column from last June.

All I can do at this point is guarantee that the text of my column will appear on my law firm's Web site at this link on Wednesday, September 11th. Anyone interested in seeing the column sooner can subscribe to a list that will cause you to receive my monthly appellate column in PDF format via email on the morning of its publication. However, in order to receive this month's column via email, you must subscribe no later than 8 a.m. eastern daylight time on Monday, September 9, 2002. All recipients of the emailed version of my appellate column are listed as "bcc" recipients, so you need not fear having your email address disclosed to any other recipients of the email.
Posted at 19:54 by Howard Bashman



"How Appealing" celebrates its four-month anniversary: Four months ago yesterday, this Web log came into existence. Coincidentally, yesterday this Web log's hit counter recorded its 90,000th visit. I never imagined that this site would develop the widespread and devoted readership that it now has, let alone so very quickly. So I offer a most sincere "thank you" to each and every one of my readers, for your interest in this blog, the emails you send, and the kind mentions many of you have made of "How Appealing" elsewhere on the Web.

Speaking of site statistics, not only does this blog's hit counter now stand above 90,500, but more than 34,400 of those hits have come in just the past month -- which included one week when I was away on vacation and the blog prominently noted that no updates would then be forthcoming. This blog's readership continues to grow steadily, and in leaps and bounds. Indeed, over the last seven days "How Appealing" has had more than 7,000 page views.

Recently, I have added links to a whole bunch of other Web logs on the left-hand column of this page. If you wish to have your blog considered for inclusion there, just send me an email containing your site's address. Remarkably, just as both InstaPundit and The Volokh Conspiracy have been important sources of referrals to "How Appealing," if you look at those sites' statistics (see here and here, respectively) you will see that "How Appealing" is a major source of referrals for each of them, which only further demonstrates what an amazing group of readers I am fortunate to have here.

Update: This post has been edited to correct the number of months in which this blog has been in existence.
Posted at 19:24 by Howard Bashman



Friday, September 06, 2002
The debate club's on drugs: According to this report, the expected upswing in drug testing for high school students engaged in extracurricular activities has not yet materialized. You see, state courts remain free to construe state constitutional prohibitions on unreasonable searches and seizures to provide students with more protection from drug testing than the U.S. Supreme Court found the federal constitution to provide last June. (You can access my original post on the U.S. Supreme Court ruling in question at this link.)
Posted at 12:23 by Howard Bashman



Bork was Owened: JURIST offers a round-up of press releases on yesterday's Senate Judiciary Committee vote.
Posted at 11:42 by Howard Bashman



Silencing Moussaoui: The public will be hearing much less from alleged twentieth hijacker Zacarias Moussaoui in the coming days, weeks and months. The federal district judge presiding over the government's criminal prosecution against Moussaoui recently ruled that Moussaoui's pro se court filings will no longer be made publicly available. The Associated Press offers this report, which mentions that the organized press is not happy with the result. You can access the judge's ruling at this link.
Posted at 10:15 by Howard Bashman



Is the history profession in trouble again?: John Rosenberg of the fine blog Discriminations describes a brewing Bellesiles-like scandal in the history profession, previously unblogged to the best of his knowledge, that he argues is far more subversive of contemporary history than the Bellesiles affair.
Posted at 09:45 by Howard Bashman



In Friday's newspapers: The Christian Science Monitor has an interesting editorial entitled "Justice in Wartime." All three major papers cover the Senate Judiciary Committee's rejection yesterday of Priscilla R. Owen's nomination to serve on the Fifth Circuit: NYTimes - here; WaPo - here; LATimes - here. And this report from The Dallas Morning News says we may not yet have seen the last of Ms. Owen.
Posted at 07:40 by Howard Bashman



Now online at law.com: An obituary for Senior Ninth Circuit Judge Eugene A. Wright, who died earlier this week; a report on yesterday's vote on Priscilla R. Owen; and an article on an interesting case involving DVD encryption and personal jurisdiction argued Thursday in the Supreme Court of California (about which blogger Denise Howell has offered some first-hand observations).
Posted at 00:05 by Howard Bashman



Thursday, September 05, 2002
If you've never read Lileks: Now's the time to start.
Posted at 23:21 by Howard Bashman



Meanwhile, back at the Fifth Circuit: The judges whom the U.S. Senate has actually confirmed to serve on the U.S. Court of Appeals for the Fifth Circuit issued an en banc opinion today in a qualified immunity case that involved a most atypical factual scenario. That, of course, isn't usually good news for the plaintiff, nor was it good news for the plaintiff in today's case.

As the majority's per curiam opinion, in which eleven of the court's fifteen judges joined, explains at its outset:
In July 1993, Defendant-Appellee Detective James Carney, a City of Columbia police detective, loaned a gun to Kevin Loftin, an informant for the Columbia Police Department, to enable Loftin to protect himself from Plaintiff-Appellant Peter McClendon. Loftin subsequently used the gun to shoot McClendon. A panel of this court held that Detective Carney thereby violated McClendon's substantive due process rights and that the unconstitutionality of Detective Carney's conduct was clearly established at the time of his actions.
The eleven-judge majority disagreed and thus affirmed the district court's entry of summary judgment in favor of Detective Carney on qualified immunity grounds.

Circuit Judge Robert M. Parker issued a spirited dissent. He wrote:
What would a reasonable person think would happen if a police officer in the course of his employment takes a pistol from the evidence locker or from his desk and gives it to a gang member with a history of drug involvement who needs it for a confrontation with a drug dealer? Any reasonable person would conclude that the state created or enhanced a dangerous situation when the officer gave the pistol to the gang member. There is no dispute that the gang member, Kevin Loftin, used the pistol provided by Detective Carney to shoot the drug dealer, McClendon. So how does one read the majority opinion, particularly in light of the fact that the majority does not reject the state-created danger theory outright? The only way to explain the majority opinion is that it clearly reflects a court that aspires to be the only circuit in the country to reject the state-created danger theory but cannot bring itself to admit it. Instead, the Court has embarked on a ten-year course of back-door rejection by assuming arguendo that the theory is viable and then finding that the victim has just not made the case. Far better it would be if this Circuit wants to embrace the extreme position of being the only circuit to reject the theory to simply say so.

* * * *

In the face of such overwhelming authority, the majority cowers. It does not have the courage to be the only federal circuit court of appeals in the nation to explicitly reject the state-created danger theory even though that is clearly what it wants to do. Although the majority refuses to take the road less traveled in a principled albeit unpopular way, it is perfectly willing to accomplish its objectives through subterfuge. The majority knows only too well how to play the game. If the Circuit never rules on whether this is a viable theory, the Circuit makes it exceedingly difficult for the district courts to rule that the Circuit law in state-created danger cases is "clearly established" for purposes of a qualified immunity analysis. Thus, state actors who engage in behavior that falls within the confines of the "state-created danger" theory will always escape liability under the majority's view no matter how egregious their behavior. That is an insidious approach to the law and I reject it outright.

The Circuit should quit hiding the ball from the public and make a decision one way or the other. It has refused. However, I favor adopting, as has the rest of the country, the state-created danger theory as a viable mechanism for obtaining Section 1983 relief in this Circuit.
Good thing the Senate has already confirmed these judges, because the accusations they have traded would make them unconfirmable in the current climate.
Posted at 23:08 by Howard Bashman



Sorry, Libertarian Party, but the State of Georgia would rather not have your candidates on its ballot: Also today, the Eleventh Circuit rejected a constitutional challenge brought by the Libertarian Party of Georgia against Georgia's requirement that a candidate from a political body may appear on an election ballot only if the candidate obtains signatures in a nominating petition from at least five percent of all registered voters. The Libertarians argued that, in a race for the U.S. Congress, the signature requirement creates a new qualification for holding federal office in violation of the Qualifications Clause of the United States Constitution. The Eleventh Circuit, in an interesting opinion you can access here, disagreed.
Posted at 22:32 by Howard Bashman



Creator of Nuremberg Files Web site gets some of his defamation claims reinstated: The U.S. Court of Appeals for the Eleventh Circuit (which is still working to find a way to join every other circuit in making opinions easily available over its own Web site) today issued an opinion that restored certain defamation claims brought by anti-abortion activist Neal Horsley, who, among other things, created the so-called Nuremberg Files Web site, against defendants Planned Parenthood Federation of America and its president, Gloria Feldt. You can access the Eleventh Circuit's ruling at this link, courtesy of FindLaw.
Posted at 22:27 by Howard Bashman



One way to get mentioned on "How Appealing" -- pour on the flattery: Law Professor Bernard J. Hibbitts, who runs the fine JURIST site for the University of Pittsburgh School of Law, sends along an email tonight that begins "Howard, your 'How Appealing' blog is absolutely terrific!!" and ends "Keep up the great work - we'll be watching!" Between those two sentences he also points out that the JURIST site's front page has become "bloggified."

Beyond its front page, the JURIST site hosts Law Professor Peter Tillers's blog on the subject of evidence, which sounds as though it could be nearly as boring as a blog devoted to the subject of appellate litigation. (Hey, did I just say that!) I'm still waiting for Professor Tillers to address the subject that should be de rigueur for any blog on evidence -- namely, how would one go about introducing a Web log into evidence in a court of law. Sorry, Professor Tillers, but after tonight you're on your own when it comes to thinking up clever questions to explore.
Posted at 21:58 by Howard Bashman



Attention copyright law enthusiasts: The Eldred v. Ashcroft reply brief was filed yesterday in the U.S. Supreme Court and can now be viewed online at this link.
Posted at 19:34 by Howard Bashman



This just in: Dahlia Lithwick's Slate column this week, posted just moments ago, looks at the sacrifice of civil liberties in the Nation's continuing war on terror.
Posted at 18:39 by Howard Bashman



Even one more reason to hold Seventh Circuit Judge Richard A. Posner in the highest regard: Today he becomes what Westlaw reveals to be the first federal judge to ever use the term "scare quotes" in a published opinion. (See PDF file opinion at page 3.) The same opinion, however, contains unhappy news for plaintiffs hoping to qualify as disabled under federal law because they have bad backs. (See opinion at page 5.)
Posted at 18:01 by Howard Bashman



Sorry, you lose: Senior Third Circuit Judge Ruggero J. Aldisert schools former U.S. Solicitor General Kenneth W. Starr on the mechanics of appellate review and reasoning by analogy, and the result isn't pretty for Starr's clients or any other antitrust defendants hoping to avoid class certification in the U.S. Court of Appeals for the Third Circuit.
Posted at 17:52 by Howard Bashman



Reuters provides reaction on Priscilla Owen's defeat: Click here for the story.
Posted at 17:43 by Howard Bashman



No more Osama bin Ladens: Germany may have found a way, according to this report from CNN.com. The parents who wish to give their child that name, however, are planning to appeal to a judge.
Posted at 17:41 by Howard Bashman



Two wild and crazy guys: What do Chief Justice William H. Rehnquist and top-notch law blogger Eugene Volokh have in common? This interesting UPI profile of Volokh has him receiving a traffic ticket and admitting, "I really am way too impatient a driver." And, The New York Daily News recently published this article about a driving incident involving our Nation's Chief Justice.
Posted at 13:52 by Howard Bashman



Three updates: 1. As anticipated, the Senate Judiciary Committee has rejected Priscilla R. Owen's nomination to serve on the Fifth Circuit by a party-line vote of 10-9. That nomination has now officially been rejected, and President Bush gets the chance to nominate someone else. The committee also approved District Judge Reena Raggi's nomination to serve on the Second Circuit by a 19-0 vote, so that nomination will now go before the full Senate for a vote. Click here to access a chart showing the status of all pending U.S. Court of Appeals nominations.

2. A significant benefit of having a widespread and astute audience for this blog is that I no longer have to know everything myself. A reader in Ohio emailed this morning to note that the author of the Ohio Supreme Court's fireworks decision issued yesterday (click here to access my original post on the decision) was no one other than Justice Deborah L. Cook. She is among the large group of President Bush's appellate court nominees who were first nominated in May 2001 but who have yet to receive a Senate Judiciary Committee hearing. Her vote in yesterday's case can be viewed as pro-injured plaintiff.

3. My recent post about the "highest [basketball] court in the land" caused a fellow blogger to email along news of a California state trial court judge who challenged a pot smoking basketball player/defendant who was twenty-two years younger than the judge to a game of hoops to show the youth how drug use negatively affected the defendant's conditioning. The article says that not only did the judge taunt the defendant on the basketball court, but the judge also scored a convincing victory there.
Posted at 13:36 by Howard Bashman



Senate Judiciary Committee update: Although today's Senate Judiciary Committee mark-up grinds on even at this moment, it is pellucidly clear that the committee is going to generate a party-line vote, 10-9, to reject the nomination of Priscilla R. Owen to serve on the U.S. Court of Appeals for the Fifth Circuit. There seems to be great bitterness on both sides of the aisle in the committee. In other news, the committee today will approve the nomination of U.S. District Judge Reena Raggi to serve on the U.S. Court of Appeals for the Second Circuit. This puts Judge Raggi on what would now qualify as an unusually fast track toward confirmation, as she wasn't nominated until early May 2002.
Posted at 11:47 by Howard Bashman



The Priscilla Owen vote is live online via C-SPAN: C-SPAN is right now offering live, online coverage of the Senate Judiciary Committee's vote on Priscilla R. Owen's nomination to serve on the Fifth Circuit, and you can access the live feed here.
Posted at 10:17 by Howard Bashman



Edward Lazarus on hypocrisy: You can access at this link, courtesy of FindLaw, the views of Edward Lazarus on whether only conservative judges are prone to that flaw.
Posted at 09:27 by Howard Bashman



In Thursday's newspapers: The New York Times today publishes a letter to the editor from U.S. Senator Orrin G. Hatch (R-Utah) in support of Priscilla R. Owen's nomination to serve on the U.S. Court of Appeals for the Fifth Circuit. Today's edition of The Christian Science Monitor contains an op-ed from a high-ranking Amnesty International official calling for an end to the death penalty for juvenile offenders. This, of course, comes as no surprise, as that group opposes any use of the death penalty.
Posted at 06:44 by Howard Bashman



Wednesday, September 04, 2002
Injustice in Cook County, Illinois: A unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit delivered a stinging rebuke today to the criminal justice system of Cook County, Illinois. As the opinion's conclusion explains:
This case is a striking example of a legal system that processed this defendant as a number rather than as a human being; it signals a breakdown of a process that might very well be in need of review, adjustment, and repair. Brown's psychiatric illness was not given so much as a sideways glance by the parties involved. Not only did Brown's public defender trial attorneys drop the ball; so did the court-appointed mental health doctors (a psychologist and a psychiatrist) and probation officer, all of whom failed to conduct even a sufficient inquiry into his family background and extensive medical history. As a result, the state trial court proceeded without any awareness of his condition. We have a record before us that mandates -- in the interest of justice -- the conclusion that Brown was denied his Sixth Amendment right to effective assistance of counsel on the grounds that his counsels' failure to investigate his history of mental illness prejudiced the outcome of his trial.
The ruling represented a significant victory for the Northwestern University Legal Clinic, which took over the case on appeal in the Illinois state court system and persisted through numerous setbacks to achieve today's result.
Posted at 21:45 by Howard Bashman



Democrats on the Senate Judiciary Committee tomorrow will reject Priscilla R. Owen's nomination to the Fifth Circuit: That's what the usually dependable Byron York is reporting late this afternoon via National Review Online.
Posted at 17:02 by Howard Bashman



Department of understatement: The Associated Press has issued a news article this afternoon entitled "Judicial Rejections Concern GOP." You can access the article here.
Posted at 16:48 by Howard Bashman



Ninth Circuit decides appeal in sex.com case: The Silicon Valley edition of InternetNews.com offers this report (and here's an earlier story from the same source, for additional background). It would appear that the decision in question was non-precedential, as the ruling isn't available on the Ninth Circuit's Web site.
Posted at 16:43 by Howard Bashman



"Hotmail email accounts are extremely difficult to trace": That's what the federal government asserts in a court filing that the prosecution made today in the criminal case against Zacarias Moussaoui. A lengthy affidavit from an FBI Special Agent is appended to the government's response, and the affidavit provides a very interesting glimpse into the world of computer counter-terrorism.
Posted at 15:38 by Howard Bashman



Dusting off the sword of Damocles: It's looking more and more likely that the Senate Judiciary Committee will vote tomorrow on the nomination of Priscilla R. Owen to serve on the U.S. Court of Appeals for the Fifth Circuit. Speaking on the floor of the U.S. Senate yesterday, Orrin Hatch (R-Utah) delivered some passionate remarks in support of Owen's confirmation: "With the attempt by some to introduce ideology and base politics into the confirmations process, today a sword of Damocles hangs over the future of nominations and our constitutional role and no vote will hint the future more than this upcoming vote on Justice Owen." You can access Senator Hatch's complete remarks by clicking here and then selecting the sixteenth item on the list. For more information about the sword of Damocles, click here.
Posted at 14:10 by Howard Bashman



Justice O'Connor bronzed: Although many people this week are returning to work from summer vacations looking tan, a permanently bronze statue of U.S. Supreme Court Justice Sandra Day O'Connor will be unveiled today at the Phoenix, Arizona courthouse of the U.S. District Court for the District of Arizona. The Associated Press provides this report.
Posted at 09:58 by Howard Bashman



Clueless and quite sad: Online today at National Review, Washington editor Kate O'Beirne writes that critics of the military detention of enemy combatants are clueless. And Susan Konig offers another very touching essay on life after 9/11. Her writings on this subject (in particular this essay from May 30, 2002) never fail to bring tears to my eyes.
Posted at 09:36 by Howard Bashman



Dear Mr. Newdow: A friend from my pre-blog days who has compiled an exemplary record of success in cases that he has argued before the U.S. Supreme Court, both when at the Solicitor General's Office and, more recently, in private practice, emailed yesterday to suggest that I publicly alert Pledge-dad Michael A. Newdow that his recently-filed suit challenging the constitutionality of congressional chaplains could subject Newdow to sanctions in light of the D.C. Circuit's en banc ruling in Murray v. Buchanan, 720 F.2d 689 (1983) (per curiam), which explicitly rejected exactly such a challenge. Consider it done. You can access my earlier post on Newdow's latest suit at this link.
Posted at 08:52 by Howard Bashman



No golf jokes today: Columbia Law School Professor Michael C. Dorf, in an essay published today at FindLaw, offers some very interesting thoughts on the U.S. Supreme Court's refusal last week to grant review in a case challenging the constitutionality of using the death penalty to punish someone who committed murder at the age of seventeen. You can access my prior post on this matter, which includes links to the opinions dissenting from the denial of review, by clicking here.

Also available now on FindLaw, Anita Ramasastry, an Assistant Professor of Law at the University of Washington School of Law in Seattle, asserts here that the Foreign Intelligence Surveillance Court correctly rebuked the Justice Department in that court's recent ruling. I'm approximately halfway through reading the government's very strong appellate brief challenging the ruling, and when I've completed the brief I hope to offer my thoughts on the matter.
Posted at 08:30 by Howard Bashman



In Wednesday's New York Times: Wednesday's edition of The New York Times contains: (a) an editorial calling on the Senate Judiciary Committee to reject the nomination of Priscilla R. Owen to serve on the U.S. Court of Appeals for the Fifth Circuit; and (b) an article reporting on yesterday's oral argument before the U.S. Court of Appeals for the District of Columbia Circuit in a case that seeks to clear the name of Dr. Samuel A. Mudd, who was convicted before a military tribunal of aiding and abetting President Lincoln's assassins and sentenced to life in prison.
Posted at 00:48 by Howard Bashman



Tuesday, September 03, 2002
So very Ninth Circuit: Most days I try to report any newsworthy decisions of the U.S. Court of Appeals for the Ninth Circuit early in the afternoon, shortly after their issuance by the court. Today, however, brought a decision so characteristic, so interesting on many different levels, and yet at the same time so gosh-darn complicated that I had to save mention of the ruling until now. It'll prove worth it, though, trust me.

Donald Scott Lagatree applied to work as a legal secretary at the law firm of Luce, Forward, Hamilton & Scripps LLP. The firm was interested in hiring him as an at-will employee, and the firm offered him a written employment agreement that contained the following arbitration clause:
In the event of any dispute or claim between you and the firm (including employees, partners, agents, successors and assigns), including but not limited to claims arising from or related to your employment or the termination of your employment, we jointly agree to submit all such disputes or claims to confidential binding arbitration, under the Federal Arbitration Act. Any arbitration must be initiated within 180 days after the dispute or claim first arose, and will be heard before a retired State or Federal judge in the county containing the firm office in which you were last employed. The law of the State in which you last worked will apply.
Lagatree balked at signing the arbitration agreement -- which he viewed as "unfair" -- and, after having worked two days at the firm, the law firm told Lagatree that it was not going to hire him. According to the Ninth Circuit's opinion, "It is undisputed that Luce Forward refused to hire Lagatree only because he would not sign the arbitration provision."

Thereafter, Lagatree lodged a complaint with the U.S. Equal Employment Opportunity Commission, and the EEOC sued the law firm asserting that a then-fairly recent Ninth Circuit decision prohibited the law firm from conditioning a person's hiring on his or her willingness to agree to arbitrate all employment-related claims that may arise. Complicating matters further, however, the earlier Ninth Circuit ruling in question didn't exist at the time that the law firm refused to hire Lagatree, today its holding has been rejected by every other federal appellate court, and arguably its foundation has been weakened by a March 2001 ruling of the U.S. Supreme Court. Oh, and by the way, the earlier Ninth Circuit ruling was written by Circuit Judge Stephen Reinhardt.

Today's decision was issued by a panel consisting of Circuit Judge Harry Pregerson, Circuit Judge Stephen S. Trott (who remains first in line to be chief judge of the still-nonexistent Twelfth Circuit), and Senior District Judge James M. Fitzgerald of the U.S. District Court for the District of Alaska (which would be located within the still-nonexistent Twelfth Circuit).

In a lengthy opinion that you can access here, Circuit Judge Trott, joined by Senior District Judge Fitzgerald, seemed to take great pleasure in overruling Judge Reinhardt's earlier decision based on the intervening U.S. Supreme Court decision that had weakened its foundation. Judge Reinhardt's decision had not only been rejected by all other federal appellate courts to have considered the issue in question, but the decision was also based on a selective sampling of the legislative history of a section of the The Civil Rights Act of 1991 that relates to Title VII, Judge Trott observed. Judge Trott's opinion had an easy time of demonstrating that Judge Reinhardt's earlier ruling probably was wrong on the law; what was much more difficult, however, was establishing that the intervening U.S. Supreme Court precedent allowed today's panel to declare the prior Ninth Circuit decision no longer good law.

On that point, Judge Pregerson's dissent proved more convincing to me. Yes, the Supreme Court's intervening ruling did cast doubt on the underpinnings of Judge Reinhardt's earlier ruling, but the Supreme Court's opinion did not mention Judge Reinhardt's opinion in its ruling (and how rarely does the Supreme Court affirmatively pass-up the chance to reverse Judge Reinhardt? -- but of course Judge Pregerson couldn't make that observation in his dissent). And while the Supreme Court's ruling called into question the foundation of Judge Reinhardt's earlier decision, the holdings of both cases could survive one another.

In closing, today's decision was so characteristically Ninth Circuit in multiple respects. First, it involved a quite questionable prior ruling by Judge Reinhardt. Second, it involved a majority consisting of one active judge and one district judge sitting by designation and a dissent by another active judge. Third, the dissent probably was right that the majority was out of line in declaring dead Judge Reinhardt's earlier ruling. And, if I were serving on the Ninth Circuit, I might favor rehearing en banc in today's case simply to let an eleven-judge en banc panel properly assign the Reinhardt opinion to the dustbin of history. But, this being the Ninth Circuit, a rehearing en banc could lead to a reaffirmation of Judge Reinhardt's ruling. It is rare when the Ninth Circuit comes close to outdoing itself in a single ruling, but today's decision came mighty close to accomplishing just that.

As for the merits of today's ruling, I'd be curious to hear the views of employee-side labor lawyer/blogger Sam Heldman.

Update: Jason Hoppin has this report on today's ruling that will run in tomorrow's edition of The Recorder.

Second Update: You can now access Sam Heldman's views on this matter at this link.
Posted at 21:31 by Howard Bashman



A possible breakthrough on privately-sponsored educational junkets for federal judges: The September 2002 installment of my monthly appellate column published in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, will discuss the dustup over privately-sponsored educational junkets for federal judges. My column will be published on September 9, 2002, and two days later you will be able to access it at this link (where all my appellate columns go to enjoy their dotage). I'm due to submit the text of the column to my editor this Thursday, and thankfully tonight I had occur to me what I hope will prove to be a useful new idea on the subject. Unfortunately, you'll have to wait in suspense until next week to see whether you agree.
Posted at 21:28 by Howard Bashman



And let's not overlook the time when then-Justice Rehnquist sat by designation as a federal district judge: In response to this post, I received an email this evening from a former U.S. Supreme Court law clerk who now serves as a high-ranking Justice Department official in charge of some very important stuff. The email reminded me that the U.S. Court of Appeals for the Fourth Circuit in 1986 reversed and remanded a trial court ruling by then-Associate Justice William H. Rehnquist, who was sitting by designation as a trial judge in the United States District Court for the Eastern District of Virginia, at Richmond. Perhaps not surprisingly, the Fourth Circuit's reversal was both per curiam and unpublished. (For those with access to Westlaw, the cite to the Fourth Circuit's decision is 1986 WL 18609.) The Supreme Court later denied the petition for writ of certiorari filed by the party who had originally prevailed in the district court. That I would forget the Fourth Circuit's reversal of then-Justice Rehnquist's ruling but remember the Seventh Circuit's reversal of a trial court ruling by then-Chief Judge Posner caused me to ponder whether my regard for Judge Posner had grown too great -- but quickly I realized that simply isn't possible.
Posted at 21:04 by Howard Bashman



Area woman goes behind the scenes at The Onion, gains potentially unique insights: If you enjoy The Onion as much as I do, you won't want to miss Kathryn S. Wenner's behind-the-scenes report published today in the American Journalism Review. (Link courtesy of the Obscure Store & Reading Room.)
Posted at 19:44 by Howard Bashman



Sitting by designation: The vacancy crisis among federal appellate judges has caused an increase in the appearance of federal district judges sitting by designation on three-judge U.S. Court of Appeals panels. Most federal appellate courts either follow the practice or have a rule that a three-judge panel on which a federal district judge is sitting by designation will not hear any appeals from the judicial district in which the district judge serves. The U.S. Court of Appeals for the Second Circuit, however, is perhaps the most prominent of the federal appellate courts that does not follow this practice. So, for example, just today a three-judge Second Circuit panel reversed the ruling of a U.S. District Judge for the Eastern District of New York, and on the panel, sitting by designation, was a different U.S. District Judge for the Eastern District of New York.

Now, obviously, a district judge is prohibited from sitting by designation on an appellate panel that is reviewing one of that district judge's own rulings, but I'm wondering what is the rationale for why most federal appellate courts don't allow federal district judges serving on appellate panels to review the rulings of colleagues from their own judicial districts? If you can offer any insights on how this practice began, or whether it makes sense, please send me an email, and I will happily reprint the best responses here.

Relatedly, when a U.S. District Judge is confirmed to a federal appellate court, his or her colleagues on the appellate court continue to review appeals from orders that the district judge entered before his or her promotion. And, perhaps most intriguingly, I recall an instance where Circuit Judge Richard A. Posner, during his tenure as Chief Judge of the U.S. Court of Appeals for the Seventh Circuit, sat by designation as a federal district judge. The Seventh Circuit was then called on to decide an appeal arising from the case, and the appellate court reversed in part in an opinion by another exceptionally fine jurist, Circuit Judge Terence T. Evans (be sure to check out footnote one of the opinion, in which Judge Evans pays great homage to Chief Judge Posner). And, of course, federal appellate judges commonly dissent from one another's rulings or call for en banc review to overturn a colleague's decision. Why can't federal district judges be expected to do the same thing when serving by designation on an appellate panel -- especially when federal district judges are entirely free to disagree with the earlier rulings of their district court colleagues when deciding cases pending in the trial court?
Posted at 16:45 by Howard Bashman



Basketball at the highest court in the land: Gina Holland of The Associated Press today has written this interesting account of the U.S. Supreme Court's legendary basketball court. Plus, it's always great to see Law Professor Rick Garnett mentioned in the popular press.
Posted at 15:53 by Howard Bashman



As if my eyesight wasn't bad enough already: Today the U.S. Court of Appeals for the Third Circuit -- the federal appellate court in which I practice the most frequently -- has shrunk down to teensy-tiny the size of the print used in its PDF-formatted opinions posted online (click here for an example). Fortunately, the Adobe Acrobat Reader includes a magnification feature. (Update: The problem has been remedied, and the court is back to posting opinions in the prior, more legible format. Yay! As a result, however, the foregoing example no longer exists -- which just provides one more reason to read this blog early and often.)
Posted at 15:45 by Howard Bashman



Are Web logs changing our culture?: Kurt Anderson and Andrew Sullivan have begun a discussion of this issue today at Slate.
Posted at 15:30 by Howard Bashman



Who's guilty of a double standard?: Tom Jipping has an op-ed in today's edition of The Washington Times in which he criticizes Senate Democrats for advocating one standard when liberal Democratic judicial nominees are under consideration and quite another when conservative Republicans are nominated for judgeships. The hidden irony, though, is that Jipping himself is guilty of the same offense. He is a staunch defender of conservative Republican judicial nominees and has been a harsh critic of liberal Democratic judicial nominees. (See this USA Today article, this article originally printed in The Los Angeles Times, or this column that Jipping himself wrote for proof.)

How can I criticize Jipping's denouncement of Senate Democrats when this blog has supported the confirmation of numerous Republican nominees to the federal appellate courts? During this blog's existence, a Republican President has had the power to make judicial nominations to the federal courts. This blog will remain pro-confirmation of qualified judges regardless of which party controls the Presidency, and this blog does not view "qualified" as dependent on a judicial nominee's personal or political views. (Disclaimer: Tom Jipping clerked for the same federal appellate judge as I did, but our tenures as law clerks for that judge did not overlap.)
Posted at 14:00 by Howard Bashman



Not rocket science, but . . . : It isn't all that easy to provide humorous coverage of federal appellate courts and their rulings, as this effort from FindLaw demonstrates. (Update: My post originally targeted the August 2002 version of "Court Side" -- which you can now access here -- but FindLaw promptly went and replaced it with the somewhat funnier September 2002 version. Let that be a lesson to me, I guess.)
Posted at 12:01 by Howard Bashman



50 recommended links for legal researchers: Thanks to the kind folks at LLRX.com for again including "How Appealing" in that site's list of "50 Recommended Links for Legal Researchers," the most recent version of which issued yesterday. Anyone caught reading this blog instead of working can now legitimately claim to be engaged in legal research.
Posted at 10:16 by Howard Bashman



Handicapping the government's FISA appeal: Thanks to Tony Adragna, from the fine blog Shouting 'Cross the Potomac, for calling on me (among others) last week to weigh in on the U.S. Department of Justice's appeal from the recently unsealed opinion and order of the Foreign Intelligence Surveillance Court. As soon as I get the chance to read through the government's brief (which you can access online here), I will share my views on the matter.
Posted at 10:05 by Howard Bashman



law.com profiles InstaPundit: Congratulations to Glenn Harlan Reynolds for winning the distinction of being the first (as best I can tell) blogger to be profiled on law.com. (True, law.com once let me link to my blog in one of my columns published there, but self-profiling doesn't count). I had to stifle a snicker when I read in the profile that some of Glenn's colleagues on his law school's faculty resent his well-deserved fame in the blogosphere. Perhaps envy would be a better description of what they are feeling.
Posted at 09:49 by Howard Bashman



Jose Padilla belongs behind bars and has no right to a lawyer: That's what Professor Robert F. Turner argued in an essay published this past Sunday at OpinionJournal.com.
Posted at 00:13 by Howard Bashman



Monday, September 02, 2002
Why America's C.E.O.s hate Bill Lerach: Jeffrey Toobin offers this lengthy explanation in the September 9, 2002 edition of The New Yorker.
Posted at 19:54 by Howard Bashman



In today's Washington Post: Today's edition of The Washington Post contains two articles written by the newspaper's U.S. Supreme Court correspondent, Charles Lane. A front page article discusses the struggle courts are experiencing between fighting terror and protecting liberties. And an article inside the "A" section reports on the very recent retirement of U.S. Supreme Court Chief Deputy Clerk Francis J. Lorson. You can access my prior post on Lorson's retirement at this link.
Posted at 16:11 by Howard Bashman



In defense of the death penalty: This past Friday, National Review editor at large John O'Sullivan offered his strong views in favor of the death penalty, and you can access his essay here. At the conclusion of his piece, O'Sullivan writes:
What the "civilized" argument boils down to in the end, as the late Ernest Van Den Haag used to point out in his intellectual demolitions of the abolitionist case, is the circular logic that capital punishment is incompatible with a civilized society because a civilized society is one that rejects capital punishment. Or, to put the abolitionist case as simply as possible: "People like us don't like capital punishment."

A genuinely civilized society would take a very different view of the evidence cited above. It would pay more attention to the cries of the victims than to its own squeamishness. And it would transfer its compassion from the David Westerfields of this world to the Danielle Van Dams.

For if the death penalty would certainly have saved 820 innocent lives, and might arguably save tens of thousands of innocent lives in the future, almost certainly at the cost of no innocent lives at all, then surely a society that shrinks from using it deserves to be called sentimentalist and cruel rather than civilized. And if in addition it ignores majority opinion in order to indulge its refined sensibilities, then it deserves to be called undemocratic too.

When next the EU ambassadors come calling at the State Department to complain of executions in Texas, Colin Powell might tell them exactly that.
Whether you personally favor or oppose the death penalty, O'Sullivan's essay is certainly worth a look.
Posted at 15:55 by Howard Bashman



How not to conduct a prisoner transfer: The facts of this decision issued last week by the U.S. Court of Appeals for the Fourth Circuit were rather astounding:
After taking Robles into custody, the officers attempted to arrange a prisoner exchange with Montgomery County's police department. Formal custody transfers generally require that the arrested individual be taken to a commissioner in the county where arrested and then transferred by the sheriff's department to the county that issued the warrant. Because this procedure is time consuming, officers sometimes arrange informal transfers of arrestees at the county line. Rozar and DeBarros requested several times that the Montgomery County dispatcher send someone to meet them for such an exchange, but these requests were denied. The officers were told that the Montgomery County Police Department was too busy that evening to spare officers for a transfer.

Skeptical of this explanation, Rozar and DeBarros drove Robles to the deserted Hillandale Shopping Center parking lot in Montgomery County. There they tied Robles to a metal pole using three pairs of flex-cuffs and left a note at his feet explaining that there were outstanding warrants for him in Montgomery County. The officers then drove out of sight of Robles and placed a call to the non-emergency number of the Montgomery Police Department reporting the situation. They did not identify themselves to the operator or disclose the fact that PGC officers had tied Robles to the pole. Officers from Montgomery County arrived approximately 10 to 15 minutes later to untie Robles and take him into custody.
Not surprisingly, the police officers in question were found liable to the suspect for damages based on their conduct in the prisoner transfer.
Posted at 15:31 by Howard Bashman



Prison equals no privacy: In the unlikely event that there were any doubts, the U.S. Court of Appeals for the Second Circuit held last week, in a decision you can access here, that those who go to prison expecting privacy for their personal effects will be quite disappointed.
Posted at 15:25 by Howard Bashman



Biker insignias are so very in for this fall: Thanks to the U.S. Court of Appeals for the Ninth Circuit, you can now proudly wear your biker gear, inflammatory insignias and all, in most of the public areas of the Carson City, Nevada Public Safety Complex. Click here to access the court's ruling.
Posted at 15:16 by Howard Bashman



Death penalty, no; binding arbitration, yes: Although the U.S. Supreme Court has recently spared the mentally retarded from the death penalty, last week the U.S. Court of Appeals for the Fifth Circuit held that even the profoundly retarded cannot escape the force of a binding arbitration clause. In a concurring opinion that is worth a look, Circuit Judge James L. Dennis wrote that the arbitrator himself/herself would have to be, um, retarded to hold that the agreement in question is enforceable.
Posted at 14:52 by Howard Bashman



Whither Priscilla Owen?: Last Friday at National Review Online, Byron York wrote that the nomination of Priscilla R. Owen to serve on the U.S. Court of Appeals for the Fifth Circuit could just squeak through the Senate Judiciary Committee. Whether that is an accurate prediction or simply wishful thinking should be known fairly soon.
Posted at 14:47 by Howard Bashman



Re's at it again: Michael A. Newdow, whose efforts single-handedly caused the U.S. Court of Appeals for the Ninth Circuit to declare it unconstitutional for public school children to say the words "under God" in the Pledge of Allegiance, is at it again. This article from last Friday's edition of The Washington Post reports that Newdow has filed suit in the U.S. District Court for the District of Columbia "contending that it is unconstitutional for taxpayer-funded chaplains to pray in Congress and minister to lawmakers."

It seems that no lengthy article about Newdow would be complete without at least one absurd new revelation. This earlier profile, which ran in The New York Times on July 1, 2002, reported that Newdow desired to replace the "sexist" pronouns "he" and "she" with the non-gender-specific "re." Friday's Washington Post story reported that Newdow "claims he applied for the jobs of House and Senate chaplains, and was passed over" before he filed suit. The main obstacle that Newdow's latest suit faces is a ruling of the U.S. Supreme Court from 1983 holding that it does not violate the Establishment Clause for a state legislature to employ a chaplain who delivers prayers at the start of legislative sessions. A second impediment may be that any appeal from Newdow's likely loss in the trial court will be heard by the no-nonsense U.S. Court of Appeals for the District of Columbia Circuit.
Posted at 13:52 by Howard Bashman



Not quite seven veils: The U.S. Court of Appeals for the Fourth Circuit delivered a nude dancing decision this past Friday, and Circuit Judge Paul V. Niemeyer's dissent suggests that U.S. Supreme Court review could follow. Just last Monday law blogger Denise Howell provided this helpful summary of a recent development in the realm of nude dancing and the law. And to learn more about the Dance of the Seven Veils, click here.
Posted at 13:37 by Howard Bashman



Questioning whether juries should award punitive damages: One week ago today, Adam Liptak had an interesting article in The New York Times reporting on the increased attention being given to whether juries should continue to be entrusted with the power to award punitive damages. While that debate certainly is newsworthy, a strong argument can be made that the increasingly strict appellate review to which punitive damages awards are now subject has substantially decreased the power of juries to award shockingly large punitive damages awards that will survive appellate review. I wrote a column on this subject that was published in The Legal Intelligencer, Pennsylvania's daily newspaper for lawyers, back in August of 2001, and you can access it here.

While, as my column explains, the U.S. Supreme Court has held that appellate courts must conduct a de novo review of whether a jury's award of punitive damages is unconstitutionally excessive (you can access here the Supreme Court's ruling), it remains to be seen whether in practice this will cause appellate courts regularly to substitute their view of what constitutes an appropriate award of punitive damages for the jury's view, or whether de novo review is only used to determine the limit between punitive damages awards that are unconstitutionally excessive and those that are not. De novo review, for those readers who are neither lawyers nor scholars of classical Latin, means review in which an appellate court does not defer in the slightest regard to the decisions of the prior tribunals, but rather considers the question anew, based on the underlying facts and circumstances present in the case. The Supreme Court has another, very interesting punitive damages case on its merits docket for the soon-to-begin 2002 Term, and developments in this area should remain newsworthy for quite some time to come.
Posted at 10:33 by Howard Bashman



A nominee for the most unexpected twist in the first paragraph of a judicial opinion: On Monday, August 26, 2002, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued an opinion that began:
The law allowing victims of sexual harassment to sue their employers applies only to those businesses with fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. In order to proceed in his sexual harassment claim, Kerry Stinnett was thus required to show that his employer, Iron Works Gym/Executive Health Spa, Incorporated (collectively "Executive Health"), employed at least fifteen persons during 1995, 1996 or 1997. This proved to be an insurmountable task for Stinnett, however, because the Executive Health Spa was a house of prostitution and criminal enterprises rarely keep accurate personnel or payroll records. The district court granted summary judgment in favor of the employer because Stinnett had inadequate evidence to show the number of employees at Executive Health at the relevant time. We affirm.
Circuit Judge Ilana Diamond Rovner was the author of this opinion.
Posted at 10:23 by Howard Bashman



Two law professors evaluate six constitutional theorists: In The New York Times Book Review of August 25, 2002, law professor Garrett Epps reviewed a recent book by two other law professors in which the authors, according to Epps, "rebuke six thinkers they see as shoehorning the Constitution into idiosyncratic theoretical pigeonholes." You can access the book review at this link. The introduction to the review is worth quoting:
''What you suggest may be all very well in practice,'' complained the apocryphal French philosopher, ''but it will never work in theory.'' American law professors laugh uneasily. In recent years legal academe has been hungrily pursuing theoretical cachet. Law journals, once narrowly focused and written largely for judges and practicing lawyers, now feature work based on economics, history, philosophy and deconstructionist theory. Daniel A. Farber and Suzanna Sherry are concerned that the result -- in constitutional law, at least -- offers little help (and possible harm) to those who must argue or decide cases.
You can access here more information about the book.
Posted at 10:08 by Howard Bashman



How some U.S. Supreme Court Justices spent their summer vacations: Anne Gearan of the Associated Press offers this report.
Posted at 10:02 by Howard Bashman



Rejecting the blanket closure of INS deportation hearings in terror detainee cases: The biggest appellate news to break while I was away last week wasn't the latest wacky lawsuit from Michael Newdow, about which more later. Rather, it was the Sixth Circuit's passionate ruling that rejected as unconstitutional the U.S. Department of Justice's blanket secrecy order in INS deportation hearings involving suspects who had been rounded-up in the post-9/11 anti-terrorism sweeps. That ruling received front page coverage last Tuesday in both The New York Times (click here for Adam Liptak's article) and in The Washington Post (click here for Charles Lane's article). Carter-appointee Senior Sixth Circuit Judge Damon J. Keith wrote the opinion, in which Clinton-appointee Circuit Judge Martha Craig Daughtrey and Clinton-appointee U.S. District Judge James G. Carr, sitting by designation from the U.S. District Court for the Northern District of Ohio, joined.

Soon after oral argument in the Sixth Circuit in this case, I received an email reporting second-hand that the government expected to lose because it had been clobbered at the argument. So, I don't think that the result here came as much of a surprise to the government. While it can plausibly be asserted that the three judges on this panel are more liberal then the average Sixth Circuit judge (but remember, of course, that the Sixth Circuit is a very closely divided court that has produced some seemingly liberal decisions over quite harsh dissents, see both here and here, for example), that doesn't eliminate the likelihood that last week's decision was correct.

And I do think the decision was correct. The Sixth Circuit's ruling only rejects a blanket rule closing all deportation hearings involving post-9/11 anti-terrorism sweep detainees. The ruling does not prevent the government from having an Immigration Judge close those hearings at which sensitive information actually will be revealed. Moreover, most deportation hearings do not require proof of terrorism-related facts. Someone either is in this country illegally or not, and that determination rarely involves deciding whether the person intends to harm the United States if he or she is allowed to remain longer. As someone who has actually spent time inside an INS detention center (more specifically, the one located in Elizabeth, New Jersey, in the shadow of the Newark International Airport), I can advise that deportation hearings are usually attended by few if any members of the public or the press. It is next to impossible even to find the INS's Elizabeth Detention Center from the street, and deportation hearings are conducted in a secure portion of this prison-like facility, behind closed doors that don't beckon "c'mon in and take a look around." As a follow-up story, it might be interesting for the Times and/or the Post to send a reporter in to cover one such hearing and report on just how easy or difficult it was to gain admittance and who else, if anyone, was present observing in the audience.

In last Wednesday's edition of The Washington Post, columnist Michael Kelly had a very well-written piece on the Sixth Circuit's ruling. His column began:
The skeptical citizen should regard with an especially jaundiced eye any judicial pronouncement that reads as if it were written to be chiseled on a courthouse frieze. Consider the recent utterings of Judge Damon J. Keith. Judge Keith, writing the unanimous verdict of a three-judge panel for the 6th U.S. Circuit Court of Appeals, declared on Monday that the federal government had acted unlawfully in adopting a blanket policy to close hundreds of deportation hearings of noncitizens suspected of connection to terrorist activity. "Democracies die behind closed doors," declared the judge. "When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation.'' This is not legal reasoning. This is preening in a black robe, frieze-language of the finest kind, and nonsense.
Although Kelly ultimately agrees with me that the Sixth Circuit's ruling was correct, his column also contains some valid counter-points.

Judge Keith's eloquent words also spawned more wide-ranging essays from Dahlia Lithwick, writing in Slate, and from columnist Frank Rich, whose excellent op-ed appeared in this past Saturday's New York Times. And today NYTimes columnist Bob Herbert nominates Judge Keith for the status of true American hero (click here for Herbert's op-ed).

What will the U.S. Supreme Court do if/when the Department of Justice seeks further review of the Sixth Circuit's ruling? It is impossible to tell, but it is important to remember that the High Court on the last day of its 2001 Term stayed a New Jersey federal district judge's ruling that rejected the same blanket closure order until the Third Circuit reached the merits of the federal government's appeal. The U.S. Supreme Court's order was noteworthy in that it reversed the Third Circuit's order refusing to stay the decision pending appeal. You can click here to access my prior report on this aspect of the controversy, including the text of the Supreme Court's stay order.
Posted at 08:30 by Howard Bashman



Judge Posner on the death penalty, and on Dershowitz and terrorism: Before leaving the subject of the death penalty, Seventh Circuit Judge Richard A. Posner wrote a very interesting book review, published several months ago in The New Republic, that discussed the history of the death penalty in the United States.

And speaking of Judge Posner, book reviews, and The New Republic -- the September 2, 2002 edition of that publication contained a book review by Judge Posner of Alan M. Dershowitz's recently published book, "Why Terrorism Works: Understanding the Threat, Responding to the Challenge." In the review, Judge Posner fires at least a few zingers in the direction of Professor Dershowitz but, in the final analysis, has some rather nice things to say about the book.
Posted at 02:28 by Howard Bashman



The death penalty and juvenile offenders: On Wednesday, August 28, 2002, three U.S. Supreme Court Justices dissented from the denial of a stay of execution in the case of a Texas convict who was convicted of capital murder and sentenced to death for a crime he committed when he was seventeen years old. Justice John Paul Stevens wrote a short dissent that seemed to draw on his recent majority opinion that declared the death penalty unconstitutional for mentally retarded murderers (but failed to cite that recent ruling). Justice Stevens urged the Court to declare the death penalty unconstitutional for defendants who commit murder before the age of eighteen. Justice Ruth Bader Ginsburg issued a separate, even shorter dissent, in which Justice Stephen G. Breyer joined, agreeing that the time has come for the Court to reconsider whether administering the death penalty to punish defendants for crimes committed before they turn eighteen violates the Eighth Amendment to the U.S. Constitution.

I have two observations to add to this story, which made the front page of Friday's New York Times in a report by Adam Liptak. First, I will try to answer the question why Justice David H. Souter didn't join with his three other liberal colleagues on the Court in dissenting from the Court's denial of a stay of execution. Second, I will offer my views on whether subjecting seventeen-year-old murderers to the death penalty is cruel and unusual punishment.

1. The Times article suggests that this particular case suffered from problematic jurisdictional and procedural hurdles that might have prevented the Court from reaching the merits of whether the death penalty may constitutionally be imposed on juvenile offenders. Another possibility, however, is that whenever four Justices dissent from the denial of a death penalty stay, it brings to the fore a perplexing quirk in the Supreme Court's own procedures. While it takes the votes of only four Justices to grant certiorari and accept a case for review, it takes the votes of five Justices for the Court to issue a stay of execution that will prevent a State from administering the death penalty. Had Justice Souter joined with the dissenters, the Court would have been in the very awkward position of having sufficient votes to accept the case for review but insufficient votes to keep the State of Texas from putting the petitioner to death (which in fact is what Texas did later on August 28, 2002), thus mooting the case. I anticipate that Justice Souter will be more willing to lend a vote to grant review in a case presenting this issue in which the petitioner is not literally on death's doorstep.

2. A chart that accompanied Liptak's article in the Times showed that all but one of the so-called "juvenile offender" death penalty cases involved defendants who committed murders at the age of seventeen; the other involved a sixteen-year-old murderer. While I am not one of this country's most forceful advocates in favor of imposing the death penalty on seventeen-year-olds, I do not see any bar to the practice in the U.S. Constitution. Of course, I cannot help but draw on my own memories of being seventeen years old not too long ago and my ability to assume responsibility as an adult for my actions at that age. At the age of seventeen I left home to attend college in at Columbia University in New York City, and had I then committed an especially brutal murder or series of murders, I would have deserved to be punished as an adult and be subjected to the death penalty. The offender's youthful age is properly considered by the jury as a factor in deciding whether the death penalty is appropriate. In other words, should this youthful offender have another chance or not? If I were on a jury I might have a very hard time imposing the death penalty on a seventeen-year-old -- the criminal acts in question would have to be especially egregious and coldhearted -- yet I do not see any Eighth Amendment problem in allowing seventeen-year-olds to receive the death penalty in cases where a properly instructed jury determines it to be appropriate. And, unfortunately, there are seventeen-year-olds in this country who have such horrific criminal records, and who have committed not just one but multiple murders, that a jury could properly determine that the penalty of death is appropriate.

As in the case of the death penalty and the mentally retarded, Justice Sandra Day O'Connor and Justice Anthony M. Kennedy each holds the fifth vote that the liberal bloc needs to declare executing seventeen-year-olds unconstitutional. That fifth vote, I predict, will not be forthcoming any time soon.
Posted at 01:14 by Howard Bashman



This is not a love song: Nor is it my official "pitch" for my next op-ed piece. But, having debuted on Slate with an essay that discussed both the death penalty and abortion, for my next trick it seems only appropriate to turn to the issue of guns. In particular, a look at how both the executive and legislative branches of the federal government have been espousing theories that sound quite friendly to gun ownership advocates, while in practice those branches have delivered quite a different result. The piece that I have in mind would be especially timely in mid-October for reasons that I have previously explained here. (This post's title courtesy of Public Image Limited and the old WLIR radio.)
Posted at 00:52 by Howard Bashman



Fight the Power: Now that I've become a relatively minor power in the blogosphere, it occurs to me that it would be nice for "How Appealing" to provide links to more blogs than just the few now featured on the left-hand column of this page. Long ago I lost the ability to keep up with all the many blogs that have been kind enough to link to mine. If you would like to have your Web log's name and link appear on the left-hand column of this page, send me a brief email containing your blog's address and its name. I'll pay a visit to your site, and then once each week I will add links to all of those sites that don't offend my catholic (please note the lower-case initial "c") sensibilities.
Posted at 00:44 by Howard Bashman



Hello again: My week away was wonderful -- not to mention relaxing and fun -- and yet, as promised, I have returned. The weather in Margate, New Jersey did not cooperate with plans to spend many days on the beach. As a result, I can report that Stuart Little 2 was indeed quite a cute film, and that my son (at the age of 7) managed to hit two holes in one on Margate's miniature golf course by the bay (and I missed winning a free game on the 18th hole by only just this much).

Thanks to everyone who visited or emailed while I was away. In just moments from now, I'll be turning to discuss some of last week's interesting legal developments. While I had no computer access this past week, I did manage to spend some time perusing hard copies of both The New York Times and The Washington Post each evening (and was charged only 50 cents for the Post on those days that the boss wasn't working the register).

My favorite email that arrived while I was away was from a reporter for one of the nation's most highly regarded newspapers (I'd say it wins the battle hands down, but others might disagree) who has been a longtime fan of this blog. The email states: "I must say I'm suffering severe withdrawal symptoms from the absence of your blog. Shouldn't you get permission from your readers before you take a vacation?" Well, perhaps next time I'll try that approach.

As for the raw statistics, in August this Web log's hit counter registered 32,824 visits -- and people kept visiting last week even while this blog's lead post explained that no new items would be forthcoming until today. This site amazingly had more than 2300 visits during the past eight days -- and while that pales in comparison to the usual 1200 to 1500 visits this blog receives on the average weekday when I am around to provide updates, 2300 hits in a week still compares quite nicely to the number of visits that many other blogs receive in a typical week when they are being updated regularly. This Web log is well on pace to have its 100,000th page visit in September, and I assure you that amazes no one more than me.

And while I wasn't here to wish Glenn Harlan Reynolds a timely happy birthday on August 27th, I will try my best to be around to receive any and all birthday wishes sent my way on October 28, 2002, when I will turn 38.
Posted at 00:01 by Howard Bashman







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