How Appealing

Saturday, November 30, 2002
Charles Lane reports on the "covert legal system" sought for terror suspects: Sunday's edition of The Washington Post contains a front page article by U.S. Supreme Court correspondent Charles Lane that begins:
The Bush administration is developing a parallel legal system in which terrorism suspects -- U.S. citizens and noncitizens alike -- may be investigated, jailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system, lawyers inside and outside the government say.
Some will undoubtedly wonder how this new system differs from what we've already seen in the cases of alleged enemy combatants, and U.S. citizens, Yaser Esam Hamdi and Jose Padilla.
Posted at 23:21 by Howard Bashman

Now that Thanksgiving is over: It's time to bring in the lawyers.
Posted at 21:39 by Howard Bashman

"New Light on Jogger's Rape Calls Evidence Into Question": Tomorrow's edition of The New York Times contains a lengthy article bearing this headline.
Posted at 20:21 by Howard Bashman

"Supreme Court Could Opt for a Momentous Term": Linda Greenhouse has a report in Sunday's edition of The New York Times that begins:
The Supreme Court faces choices in the next few weeks that could convert the current term from solidly interesting to potentially momentous.
You can access her full report at this link. I made a similar observation here in response to Dahlia Lithwick's recent essay about possible upcoming U.S. Supreme Court retirements.
Posted at 20:15 by Howard Bashman

"Ashcroft transforms the culture of Justice Department": Yesterday's edition of The Kansas City Star contained a very interesting article that began:
Most Americans know John Ashcroft as the public face of domestic security, announcing indictments of putative terrorists, warning of future attacks.

The role of attorney general, however, is much more than being the top cop in the war on terror. And after nearly two years in office, Ashcroft has significantly changed the Justice Department's culture and the way it interprets the law on a variety of domestic policy issues unrelated to the war.
You can access the complete article at this link.
Posted at 10:56 by Howard Bashman

Elsewhere in Saturday's newspapers: Today's edition of The Los Angeles Times reports here that "Geography is looming as a formidable barrier to Democrats' hopes of recovering from their 2002 losses and recapturing either the Senate or House in 2004." In yesterday's LATimes, the newspaper's U.S. Supreme Court correspondent, David G. Savage, had an article entitled "High Court Poised to Hear 2 Equal Protection Cases; In one, race as a 'plus' factor in admission policies is challenged; the other tests whether gays can be prosecuted for having sex at home."

The Boston Globe today reports here that those hoping to see a photo of the Nation's current President and Vice President on display at the J. Joseph Moakley U.S. Courthouse in Boston will be disappointed. The Globe contains this article reporting on Massachusetts' appeal of a federal district court's recent ruling approving the Microsoft antitrust settlement. Here you can access a report that begins, "Federal law enforcement officials are concerned that Al Qaeda is targeting what authorities fear is an increasingly fertile breeding ground for Islamic extremism: US prisons." Finally, here is an article entitled "Some Jews objecting to [public] menorah ceremony."
Posted at 10:40 by Howard Bashman

In Saturday's newspapers: Saturday's edition of The New York Times contains a lengthy article reporting that the "Administration Begins to Rewrite Decades-Old Spying Restrictions." The Times reports here on "an episode more than 80 years ago in which the Harvard administration methodically harassed a number of young men for being gay, on suspicion of being gay or simply for associating with gays." In an op-ed, legal ethics scholar Stephen Gillers explains "Why Judges Should Make Court Documents Public." Relatedly, The Times also contains an editorial calling on a federal district court to lift the veil of secrecy surrounding portions of court documents in the pending suit that challenges the McCain-Feingold campaign finance law. Two letters to the editor of The Times are worth a look: here's one in response to "Adam Cohen's derisive report on the recent Federalist Society conference"; and here's another on the subject of cameras in the jury deliberation room. Finally, The Times reports here on Massachusetts' decision to appeal to the D.C. Circuit from an order approving the Microsoft antitrust settlement; The Washington Post has an article on the same subject matter here.
Posted at 00:31 by Howard Bashman

Here's the text of the order that Justice John Paul Stevens entered yesterday allowing display of a menorah in a Cincinnati public square:
The Court of Appeals for the Sixth Circuit has entered a stay of a District Court order enjoining enforcement of a city of Cincinnati ordinance, and plaintiffs have filed a motion with me as Circuit Justice seeking an order vacating that stay.

As did the District Court, the Court of Appeals states that the ordinance in question "reserves the exclusive use of Fountain Square to the City" for the 7-week period beginning today.

Though the city has filed a narrowing interpretation of this ordinance with me, for the purposes of the present motion I accept the construction of the ordinance by the courts below (who also had the benefit of this narrowing interpretation) even if I might have arrived at a different conclusion without such guidance.

Under the District Court's reading, the ordinance is significantly broader than a reservation of the exclusive right to erect unattended structures on the square during this period of high use, which I assume the city could have reserved to itself.

Given the square's historic character as a public forum, under the reasoning in this Court's decision in Capitol Square Review and Advisory Bd. V. Pinette 515 U.S. 753 (1995), I think the District Court correctly enjoined the city from enforcing "those portions" of the ordinance "which give the City exclusive use of Fountain Square" for the next seven weeks.

It follows, I believe, that the Court of Appeals' stay should be vacated.
You can access additional coverage of this matter here, courtesy of The Cincinnati Enquirer.
Posted at 00:27 by Howard Bashman

Friday, November 29, 2002
In time for the first night of Hanukkah, U.S. Supreme Court lifts Sixth Circuit's stay prohibiting display of menorah in Cincinnati public square: The Associated Press is reporting this evening that the U.S. Court of Appeals for the Sixth Circuit suffered a quick reversal today at the hands of the U.S. Supreme Court:
The Supreme Court upheld a federal judge's ruling that the city of Cincinnati cannot bar a Jewish organization from displaying a menorah on a downtown plaza during the holidays.

In it's ruling Friday, the high court lifted a stay by the 6th U.S. Circuit Court of Appeals, noting the square's historic character as a public forum.
You can access the complete Associated Press report here.
Posted at 19:10 by Howard Bashman

"One state appeals Microsoft deal": CNN is reporting: "Massachusetts said Friday it is appealing a federal judge's antitrust settlement with Microsoft Corp. as seven states dropped out of the lawsuit against the software maker." The appeal will be heard by the U.S. Court of Appeals for the D.C. Circuit.
Posted at 16:35 by Howard Bashman

The Eighth Circuit has issued a bunch of opinions today: The U.S. Court of Appeals for the Eighth Circuit has issued four published and two unpublished opinions today, the Friday after Thanksgiving. One of the published opinions is worthy of mention. In it, the court upheld a judgment entered in favor of an employee of Yellow Freight System, Inc., and against Yellow Freight, on the employee's claims of same-sex sexual harassment under the Minnesota Human Rights Act. The employee who brought the suit was the subject of some particularly graphic and distasteful graffiti that appeared on the walls of Yellow Freight trailers. The opinion recounts the graffiti in detail and includes a discussion of whether graffiti saying simply that someone "sucks" is a sexual epithet or merely a term that connotes non-sexual disapproval or disparagement. You can access the opinion at this link.
Posted at 15:41 by Howard Bashman

The U.S. Supreme Court's 5-4 order from Wednesday vacating the Eleventh Circuit's stay of execution is now available online: You can access it here, and my earlier mention of this matter (providing a bit more background) is available here.
Posted at 15:30 by Howard Bashman

"Supreme Court to Consider Tribal Lands": The Associated Press has this report about a case to be argued before the U.S. Supreme Court on Monday.
Posted at 15:27 by Howard Bashman

Thanks for speaking, Dark Goddess of Replevin: A blog that goes by the name "The Dark Goddess Of Replevin Speaks" had some very nice things to say about "How Appealing" the other day. The post in question begins:
In some random googling this morning (for which I expect to receive a bill from myself for fifty bucks) I stumbled on a superlative blog on appellate matters across the country. Howard Bashman combines humor and heavy-duty substance in a manner that looks effortless, but I know it isn't, because I try.
You can access the entire post at this link. For those unfamiliar with the term "replevin,"'s legal dictionary provides a definition here.
Posted at 09:30 by Howard Bashman

On the agenda for today: Lunch in the Philadelphia suburbs with John and Jessie Rosenberg of the Discriminations blog.
Posted at 09:27 by Howard Bashman

In Friday's newspapers: Today's edition of The Los Angeles Times explains what's new with Gennifer Flowers, whose lawsuit against Hillary Rodham Clinton and others the U.S. Court of Appeals for the Ninth Circuit recently reinstated in part, as I previously reported here and here. The LATimes today also previews a pending U.S. Supreme Court case involving the battle over how much telemarketing firms can keep of the funds they raise for charity. And here you can access an LATimes article entitled "States Challenge Bush on Embryonic Stem-Cell Research."

Today's edition of The New York Times contains an article entitled "The High Cost of Losing the Senate." Among other things, the article explains:
Some prominent committees can also be a ticket to media exposure, especially crucial for ambitious lawmakers who want to keep their profile high. For instance, the most junior member of the Judiciary Committee, Senator John Edwards, Democrat of North Carolina, would almost certainly not be happy to be booted off the panel -- a strong platform for his budding presidential bid -- particularly given the prospect of a Supreme Court nomination and an ensuing battle over it in the next Congress.
The Boston Globe today contains an article that bears the headline "Some oppose antiterror law's time limit on review; 1-year deadline called unjust in some cases." The law in question is the so-called Antiterrorism and Effective Death Penalty Act of 1996, known to many lawyers a AEDPA. The Globe today also reports that F. Lee Bailey " is fighting to get his law license reinstated" in Massachusetts. He was recently in the news when he lost a battle against the federal government over funds he sought to claim as part of an attorney's fee.
Posted at 09:14 by Howard Bashman

Thursday, November 28, 2002
Must be that time of year again: Today's edition of The Cincinnati Enquirer contains an article entitled "Menorah, cross kept off square" that reports:
Cincinnati officials won a rare legal victory Wednesday when an appeals court ruled that the city could continue to ban private holiday displays on Fountain Square, at least for this holiday season.

The decision by the U.S. Sixth Circuit Court of Appeals came a few hours after U.S. District Judge Susan Dlott declared the city's ban unconstitutional.

The appeals court did not reverse Judge Dlott's decision, but it did stop enforcement of her order until the case can be considered on appeal.

The Sixth Circuit's decision means individuals and private groups that had hoped to install displays on the square this year will most likely be barred from doing so.
You can access the complete article at this link.
Posted at 23:19 by Howard Bashman

Puritans were not prudes, The Chicago Sun-Times reports: Maybe the L-tryptophan is beginning to make me sleepy, but this article seems interesting.
Posted at 23:15 by Howard Bashman

Third-year Yale Law School student, and brand new blogger, analyzes two very important appellate decisions recently featured here: Nick Daum shares some interesting thoughts about two important federal appellate court rulings issued this past Tuesday that he first read about below, here and here. For those confused by Nick's blog template, this is my Web log, and this is his.
Posted at 22:50 by Howard Bashman

"Spock out": Just in time for Thanksgiving, there's news from Alabama that will cause fans of the Vulcan to rejoice. As I mentioned in my earlier post on this matter, I thought the federal court trial judge would find this suit "most illogical." (Via Sam Heldman.)
Posted at 16:32 by Howard Bashman

Today's newspaper coverage of yesterday's resignation by the dean of the Boalt Hall School of Law: You can access here coverage from The Daily Californian, UC Berkeley's student newspaper. Here you'll find coverage from the San Francisco Chronicle; here you'll find coverage from the Contra Costa Times; and here's an article from today's edition of The Los Angeles Times.
Posted at 16:01 by Howard Bashman

"Sisters are doin' it for themselves": Today's edition of The New York Times reports here that there aren't enough female bloggers. Who would have guessed after last week's predominantly female law bloggers panel at the Yale Law School? And why focus on numbers when excellence is all that matters? One especially excellent blog -- Denise Howell's "Bag and Baggage" -- turns one year old today. Denise's blog played a major role in causing me to launch "How Appealing." Be sure to pay her a visit and say congratulations! (This post's title is via Aretha Franklin.)
Posted at 09:45 by Howard Bashman

Colleagues criticize rhyming Pa. Supreme Court justice: Hmm, this news makes me want to try my hand at a little poem of my own:
Into a published dissent,
The poetic stanza went;
The majority's usual love for rhyme
Did not extend to this particular time.

Although justice may well sometimes be poetic,
The dissent made the majority frenetic.
A rhyming dissent in Pennsylvania is quite rare;
Why is the majority pulling out its own hair?
The Associated Press has this report on yesterday's ruling of the Supreme Court of Pennsylvania. As soon as yesterday's opinions appear online, I will post links to them here.
Posted at 08:38 by Howard Bashman

Wednesday, November 27, 2002
Now available online at In an article that could have been entitled "Bolting from the Hall," The Recorder provides this coverage of the dean's resignation today from the University of California, Berkeley's Boalt Hall School of Law.

Marcia Coyle previews the pending U.S. Supreme Court challenge to IOLTA accounts under the Fifth Amendment's takings clause. I'm generally loathe to predict the outcome of pending cases, but in this instance I'm all but certain that the prevailing party will have in its name the words "Foundation," "Legal," and "Washington."

This article reports on a very important ruling today by the Supreme Court of California that answered in the negative the question "whether an individual may bring an action for money damages on the basis of an alleged violation of a provision of the California Constitution, in the absence of a statutory provision or an established common law tort authorizing such a damage remedy for the constitutional violation."

Finally, the Texas Lawyer reports here on the controversy underway in that State over whether a television program may record jury deliberations in a death penalty case.
Posted at 22:27 by Howard Bashman

Two pearls of wisdom from Judge Posner: It's rare to peruse an appellate opinion written by Seventh Circuit Judge Richard A. Posner without finding at least one or two passages that are worthy of mention. And today's example is no exception, as these two excerpts demonstrate:
We note preliminarily that the district court based its decision entirely on an unreported district court decision from another circuit, that FutureSource places great reliance on that decision, and that Reuters is at pains to distinguish it. The reasoning of district judges is of course entitled to respect, but the decision of a district judge cannot be a controlling precedent. The law's coherence could not be maintained if district courts were deemed to make law for their circuit, let alone for the nation, since district courts do not have circuit-wide or nationwide jurisdiction.
Later in the opinion, Judge Posner writes:
Nonsensical interpretations of contracts, as of statutes, are disfavored. Not because of a judicial aversion to nonsense as such, but because people are unlikely to make contracts, or legislators statutes, that they believe will have absurd consequences. This principle is apt to the present case.
So this Thanksgiving eve, I will spend a moment being thankful for all those federal and state appellate judges who are both really smart and really good writers too. Just as appellate judges prefer to receive briefs that make sense and are well written, appellate lawyers prefer to read opinions that exemplify those same two qualities.
Posted at 21:42 by Howard Bashman

News from here and there: The Associated Press reports here that plans to execute a Florida inmate are back on after a sharply divided U.S. Supreme Court voted 5-4 (order not yet available online) to vacate a stay of execution that the U.S. Court of Appeals for the Eleventh Circuit had recently entered.

We may learn as early as Monday whether the U.S. Supreme Court will review the constitutionality of the University of Michigan Law School's system of racial preferences in student admission decisions, CNN reports here. Because the case satisfies every relevant criteria for U.S. Supreme Court review, I would be quite surprised if review were not granted.

The AP reports here that the U.S. Court of Appeals for the First Circuit has denied the request of former Providence, Rhode Island Mayor Vincent "Buddy" Cianci Jr. to stay out on bail while he appeals from his recent federal corruption conviction. He is due to report to the Federal Correctional Institution at Ft. Dix, New Jersey on December 6, 2002.

The AP reports here that "[a] federal judge on Wednesday blocked the Bush administration's attempt to take a lawsuit against Vice President Dick Cheney's energy task force to a federal appeals court" because "the Justice Department had not shown adequate reason why he should turn the case over the appeals court before a final judgment."

Finally, MSNBC offers a report that attempts to answer this question: "If you are a U.S. citizen, should you care that alleged terrorists Jose Padilla and Yaser Hamdi are being jailed indefinitely, without access to their lawyers, in military brigs?"
Posted at 21:08 by Howard Bashman

Another prestigious law school deanship will soon have a vacancy: The Associated Press is reporting late this afternoon:
The dean of Berkeley's Boalt Hall law school has resigned after being accused of sexually harassing a former student
You can access the law school's Web site at this link.
Posted at 17:05 by Howard Bashman

"Conservative Court Could Be Dems' Best Friend": Glenn Harlan Reynolds and Brannon P. Denning explain why here.
Posted at 16:53 by Howard Bashman

Supreme Court of Missouri indefinitely suspends two lawyers from practice of law for assisting in suit against their former client, Chrysler Corporation: Yesterday the Supreme Court of Missouri, in an opinion you can access here, suspended two lawyers from the practice of law indefinitely -- with leave to apply for reinstatement in one year -- for having "engaged in professional misconduct by representing another person in a substantially related matter adverse to the interest of a former client." The former client in question was Chrysler Corporation. (Thanks to the reader who yesterday sent along news of this ruling.)
Posted at 16:42 by Howard Bashman

This news has no effect on the Victoria's Secret - Victor's Secret case: The Associated Press this morning issued a news report bearing the headline "Ky. Sex Shop Switches to Selling Bibles." Fortunately for those of us awaiting the outcome of the Victoria's Secret - Victor's Secret trademark dilution dispute, the Kentucky sex shop in the news today is not the Kentucky-based store formerly known as Victor's Secret. Anyone interested in learning more about the Victoria's Secret vs. Victor's Secret case can do so here and here.
Posted at 14:19 by Howard Bashman

"Live long and prosper": Former Alabama resident Sam Heldman writes here that someone "has sued claiming that Birmingham's statue of Roman god (or demi-god?) Vulcan is a violation of the First Amendment." (See also the news article that Sam links to, here.) Who will be the first to label this suit "most illogical"?
Posted at 09:45 by Howard Bashman

From this week's edition of The Onion: The Onion has two items of interest this week. First up, an article that begins, "Vowing to 'vigilantly defend the Second Amendment and preserve our most basic civil liberties,' the National Machete Association denounced congressional efforts to enact machete-control legislation Monday." And here the person on the street responds to the question, "Hillary in 2004?"

Update: Second Amendment scholar Clayton Cramer (whose blog you can access here) emails to note that "Oddly enough, some of the early case law associated with the Second Amendment and its analogs in state constitutions does involve Bowie knives, Arkansas toothpicks, and other toys not so terribly different from a machete." He also provides a link to this 1859 ruling (which becomes much easier to read once you find the "rotate view" button on the Adobe Acrobat Reader) of the Supreme Court of Texas.
Posted at 08:31 by Howard Bashman

Speech codes at Harvard Law School: Today's edition of The Boston Globe contains two op-eds on the subject of a proposed speech code at the Harvard Law School. You can access Alan M. Dershowitz's op-ed here, and here you can access the op-ed of Scot Lehigh.
Posted at 08:15 by Howard Bashman

Elsewhere in Wednesday's newspapers: Today's edition of The Boston Globe contains an article reporting that "Two liberal organizations are urging Republican Senators Olympia Snowe of Maine, Lincoln Chafee of Rhode Island, and Arlen Specter of Pennsylvania to switch sides." USA Today offers an article entitled "Republican control gives business hope in limiting liability." And a media columnist for The Los Angeles Times reports here that a proposed Securities and Exchange Commission regulation raises serious First Amendment free speech-free press concerns.
Posted at 07:47 by Howard Bashman

In Wednesday's newspapers: In Wednesday's edition of The Washington Post, Charles Lane reports on the knee surgery that Chief Justice William H. Rehnquist had yesterday. The Thanksgiving turkey that President Bush pardoned yesterday was the first female turkey ever to play the role of pardon recipient (interject your own joke here if need be), the Post reports in this article, which mentions Justice Sandra Day O'Connor among a lengthy list of first females.

In The New York Times, reporter Adam Liptak focuses attention on a very interesting recent ruling by the Supreme Court of Illinois:
Tabitha Pollock was sleeping when her boyfriend killed her 3-year-old daughter. For failing to anticipate that crime, Ms. Pollock was convicted of first-degree murder and has served 7 years of her 36-year sentence.

Last month, the Illinois Supreme Court overturned Ms. Pollock's conviction, saying the prosecution's theory -- that she should have known that her boyfriend, Scott English, who is serving a life sentence, was going to murder her child -- has no basis in the law. Barring something unusual, she will be released from the prison here in the next few weeks.

The case raises the question of whether some judges, prosecutors and communities ask too much of mothers and are prepared to punish them, even at the expense of the surviving family, when things go wrong. Legal experts said mothers had been held accountable for abuse by others, under various theories and often with more evidence, in hundreds of similar cases around the nation. They knew of no such cases involving fathers.
Lastly for now, The NYTimes also contains an editorial that advances a sensible argument against allowing cameras in to film jury deliberations.
Posted at 00:10 by Howard Bashman

Tuesday, November 26, 2002
Plan B: Today's edition of The Salt Lake Tribune reports here that "To get Salt Lake City to give up its easement through the Main Street Plaza, the LDS Church said Monday it is willing to pay an undetermined amount of money and give up its right to proselytize on the property."
Posted at 23:58 by Howard Bashman

Are Al and Tipper Gore's books selling up to expectations? Not exactly, according to Lloyd Grove, writing in today's edition of The Washington Post. But there's hope, the article explains:
Former Gore campaign press secretary Chris Lehane e-mailed: "As long as Justice Scalia -- Judge Grinch -- does not have the Supreme Court rule that the Gores' book cannot be a stocking stuffer for the holidays, I am sure it will do well. Also, Bush should like the Gore picture book -- with all the photos, it is right up his alley, while the Woodward book seems to be a little long and dense for his type of a read." Gore's current spokesman, Jano Cabrera, declined to try topping Lehane: "Why put my foot through a Picasso?"
Apparently Gore's current and former staffers believe that nothing works like a gratuitous shot at the U.S. Supreme Court to jump-start book sales.
Posted at 23:55 by Howard Bashman

"Judicial confirmation process is broken, and it needs fixing": Yesterday's edition of The Philadelphia Inquirer contained an op-ed bearing this title.
Posted at 23:52 by Howard Bashman

Circuit Judge Easterbrook grapples with the Economic Espionage Act of 1996: Before today, the U.S. Court of Appeals for the Seventh Circuit had not had the pleasure of deciding a case involving the Economic Espionage Act of 1996. Today, fortunately for fans of interesting-to-read appellate decisions, that task fell to Circuit Judge Frank H. Easterbrook. And he did not disappoint.

The opinion, which you can access here, mentions not only Avogadro's number and Einstein's theory of relativity, but it also goes on to observe:
Selling a copy of Zen and the Art of Motorcycle Maintenance is not attempted economic espionage, even if the defendant thinks that the tips in the book are trade secrets; nor is sticking pins in voodoo dolls attempted murder. Booksellers and practitioners of the occult pose no social dangers, certainly none of the magnitude of those who are tricked into shooting bags of sand that have been substituted for targets of assassination.
Circuit Judge Kenneth F. Ripple filed a concurring opinion which began, "I concur in the judgment of the court. I write separately because the panel majority's opinion deals with several matters that are not necessarily raised by this case, and, in my view, it is imprudent to confront these issues prematurely."
Posted at 22:28 by Howard Bashman

What would you call concrete that's similar to gelatin? "Retarded" is the answer that this opinion issued today by the U.S. Court of Appeals for the Tenth Circuit provides. And where was that "retarded" concrete intended to be installed? Oh, nowhere important; it was only going to be used in the construction of Runway 17L-35R at the Denver International Airport.
Posted at 22:12 by Howard Bashman

Tenth Circuit judge in concurring opinion sharply criticizes Oklahoma County District Attorney's Office: In a concurring opinion to a Tenth Circuit decision issued today, Circuit Judge Robert H. Henry of Oklahoma City sharply criticized the conduct of the Oklahoma County District Attorney's Office in this and certain other cases:
I write separately, however, to voice my concern regarding the prosecutorial misconduct that seems to have played a not insignificant role in this case.

Prosecutorial misconduct at trial has routinely been the issue of postconviction litigation. While it is true that any prosecutor will have his share of trial-outcome challenges, over the last fifteen years, the Oklahoma County District Attorney's office has been cited for actions deemed improper, "egregiously improper," deceitful and impermissible in striking foul blows, deplorable, "perhaps inappropriate," worthy of condemnation, and, in this very case, "condemned" and "certainly error." Actions by that office have been the basis for the invalidation of both sentences and capital convictions. It is hard to formulate any kind of justifiable characterization of the conduct in the present case, for the comments push hard against the boundaries of propriety. An experienced prosecutor should know better -- especially considering the frequent criticism of his tactics by both state and federal courts -- and should be willing to follow the law he has sworn to uphold. The prosecution's actions in this case suggest defiance of Oklahoma courts and disregard for Oklahoma law.

[footnotes omitted]
At the close of his concurring opinion, Judge Henry wrote:
Finally, I recognize that the Oklahoma County District Attorney’s Office has done much efficient work over the years. But as the cases chronicled by the Oklahoma Court of Criminal Appeals show, some prosecutors in that office over the last fifteen years, have repeatedly and seriously crossed the line in capital cases. I have voiced my concerns to warn against conduct that threatens otherwise valid convictions and to encourage more ethical behavior in the future.
You can access today's complete Tenth Circuit ruling at this link.
Posted at 22:01 by Howard Bashman

Tenth Circuit affirms the dismissal of libel claims against Bloomberg News Service: You can access today's ruling at this link.
Posted at 21:55 by Howard Bashman

En banc Fifth Circuit waiver-of-grounds-for-acquittal ruling triggers noteworthy dissenting opinion that touches on scope of Second Amendment rights: The en banc U.S. Court of Appeals for the Fifth Circuit today ruled 12-2 in a decision you can access here that "Where, as here, a [criminal] defendant asserts specific grounds for a specific element of a specific count for a [Federal] Rule [of Criminal Procedure] 29 motion [seeking entry of a judgment of acquittal], he waives all others for that specific count."

At issue was whether the defendant had preserved the strongest ground to challenge his conviction for having violated 18 U.S.C. sec. 922(g)(3), a statute that makes it a crime for "any person who is an unlawful user of or addicted to any controlled substance" to possess a gun. In proceedings before the trial court, the defendant only sought acquittal on the ground that he was not a drug addict. The defendant did not seek acquittal from the trial court on the ground that he was not an unlawful user of drugs. The en banc majority concluded that because the defendant only moved for an acquittal before the trial court on the ground that he was not a drug addict, the defendant lost the right to have the Fifth Circuit conduct a searching review of whether sufficient evidence existed to prove that the defendant was "an unlawful user" of illegal drugs.

Far more interesting than the majority's per curiam opinion was the dissenting opinion written by Circuit Judge Harold R. DeMoss, Jr., in which Circuit Judge Jerry E. Smith joined. The dissenting opinion begins by taking issue with the majority's holding that the defendant's specific challenge to the sufficiency of the evidence resulted in a waiver of other grounds for challenging sufficiency on appeal:
I am truly amazed at the ingenuity displayed by the en banc majority in fashioning a new rule of criminal procedure, which permits them to dispose of this case without addressing some tough substantive issues. If our primary purpose as appellate judges is to make appellate review as difficult as possible for criminal defendants, then I congratulate my colleagues for this new hyper technicality that they uncovered in Fed. R. Crim. P. 29.
From there, the dissenting opinion moves on to an even more interesting discussion of why, in the view of the two dissenting judges, the "an unlawful user of * * * any controlled substance" language in Section 922(g)(3) violates the Second Amendment to the U.S. Constitution. Judge DeMoss explains:
Even more fundamentally, I think the en banc majority errs in making any judgment about the sufficiency of the evidence without first coming to grips with the essential definitional problem that this case raises, i.e., what do the words "unlawful user," as they appear in sec. 922(g)(3), require in the way of proof beyond a reasonable doubt? * * *

During the time that Herrera's case was pending in the district court and coming up to our court on appeal, a panel of our court was deciding the case of United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) which held that the Second Amendment "protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded in Miller." Id. at 260.

Defense counsel for Herrera made a cryptic motion at the conclusion of the evidence in Herrera's case that he was entitled to Second Amendment protections and count 16 violated those protections. While Herrera's case was pending on our appellate docket, the Supreme Court of United States denied certiorari in Emerson, 122 S. Ct. 2362 (2002) (mem.), and consequently the panel decision in Emerson remains as the binding law in the Fifth Circuit. Emerson clearly recognizes that the Second Amendment right to keep and bear arms "does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." Id. at 261.

In light of Emerson, I would urge that Second Amendment rights can be abridged only if the restriction survives strict scrutiny. To the best of my research, Herrera's case presents the first occasion on which our court has been asked to evaluate the appropriateness of sec. 922(g)(3) in light of our circuit's interpretation of the Second Amendment in Emerson. I realize that there are some judges on our court who turn-up their noses and snicker at the Second Amendment, but until changed by a subsequent decision of the Supreme Court or by an en banc reconsideration in our court, Emerson stands as the applicable law in our circuit.

If some other statute of Congress purported to take away or restrict (1) "the right of the people peaceably to assemble and to petition the government for redress of grievances" under the First Amendment, or (2) "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures" under the Fourth Amendment, or (3) the right of any person to be free from being "compelled in any criminal case to be a witness against himself" under the Fifth Amendment, or (4) the right of any person "to have the assistance of counsel for his defense" in any criminal case under the Sixth Amendment because, in each event, such person was "an unlawful user of or addicted to a controlled substance," then surely this court would use the test of strict scrutiny to determine the validity of that statutory restriction.

The precise question raised by Herrera's case is whether sec. 922(g)(3) is a reasonable and narrowly tailored restriction, which accurately defines those categories of individuals who should be deprived of their Second Amendment right to keep and bear arms. I can certainly agree that the definition of "addict" set forth in 21 U.S.C. sec. 802(1) passes the test of Emerson as a reasonable restriction on Second Amendment rights. However, in my judgment the words "unlawful user" completely fail to pass Emerson's requirement of strict scrutiny because (1) there is no statutory definition of such words; (2) there is no common and ordinary meaning to such words; (3) there is nothing in the legislative history which would indicate what Congress had in mind by using such words; and, (4) there is nothing from which a court or jury can determine: (i) what quantities of (ii) what controlled substances, in (iii) what time frame on (iv) what occasions, and with (v) what side affects are necessary to constitute "an unlawful user."

[emphasis added]
I am pleased to see that this decision has already come to Eugene Volokh's attention, and I look forward to seeing his comments on the decision once he has a chance to study it, which will cause him to appreciate that even within the Fifth Circuit the continued recognition of the individual rights view of the Second Amendment remains far from certain.
Posted at 20:53 by Howard Bashman

"Chief Justice Rehnquist Has Surgery": The Associated Press is reporting that Chief Justice William H. Rehnquist had surgery today at Walter Reed Army Medical Center to repair a torn tendon he sustained when he fell and hurt his knee last Thursday. The article explains that if Chief Justice Rehnquist is unable to attend in person the U.S. Supreme Court's conference scheduled for tomorrow, he could lead the conference by telephone.
Posted at 16:43 by Howard Bashman

Mmm Mmm Mmm Mmm: The current issue of The Village Voice contains a piece entitled "Crash-Test Dummy: Bush Fronts Scalia for Chief Justice." (This post's title in memory of Crash Test Dummies.)
Posted at 15:58 by Howard Bashman

"Choose Life" license plates are becoming the equivalent of "Choose Litigation": has this report.
Posted at 15:23 by Howard Bashman

In case anyone forgot, the Sixth Circuit could really use some additional judges: I returned from lunch to find this email that had just arrived:
Hello! I'm a clerk for a judge on the 6th Circuit. Your post about the reams of paper showing up for the new Judge McConnell to read absolutely cracked me up. Over here, we're wondering if they can install an express chute from where a new judge is located when he or she is finally confirmed straight to Cincinnati. I was talking to a clerk of a senior judge who said her boss is at 125% case load.

Anyway, thanks for the blog. I adore it.
The Cincinnati-based Sixth Circuit is authorized to have a total of sixteen circuit judges in regular active service, but today it only has nine (and even after the recently-confirmed John M. Rogers takes the bench, the court will still have six vacancies).
Posted at 14:17 by Howard Bashman

In today's edition of The Wall Street Journal: Today's edition of The Wall Street Journal contains a very interesting article entitled "White House Counsel's Methods Outrage Military Legal Experts." According to the article, the "military experts" who are outraged at Alberto Gonzales' methods in "rewriting the laws of war" include "career Pentagon lawyers in the Judge Advocate General's Office" and "National Security Counsel legal advisers." Unfortunately, you need to be a subscriber to the Journal's electronic edition to access the article online.
Posted at 14:12 by Howard Bashman

Ninth Circuit overturns settlement of huge race discrimination in employment class action suit against Boeing: Today a divided panel of the U.S. Court of Appeals for the Ninth Circuit set aside the settlement of a class action suit alleging race discrimination and other claims against Boeing Company brought on behalf of a class of approximately 15,000 African-American Boeing employees. Circuit Judge Marsha S. Berzon wrote the majority opinion, in which visiting Senior Eighth Circuit Judge Donald P. Lay joined. Circuit Judge Stephen S. Trott dissented and would have upheld the settlement in its entirety.

Judge Trott's dissent explains, at its outset:
As they always do, my conscientious colleagues display a thorough and scholarly grasp of the issues that arise in the settlement of class lawsuits. With all respect, however, I see this settlement and the district court's approval of it in a different light. Thus, I respectfully dissent.

Three main worries, each of which in my view is just an illusion, appear to be driving the majority's decision to reverse the district court's approval of this consent decree: (1) the "possibility" that class counsel could have betrayed their clients in favor of their own fees; (2) that the "large differential" in the distribution of monetary awards between class representatives and certain identified class members, on one hand, and unnamed class members on the other, indicates something rotten in Denmark; and (3) that the district court inflated the $3.65 million value attached to the "largely precatory" injunctive relief. As I read this record, and as I shall attempt to demonstrate, these concerns have no foundation in fact or law.
You can access the court's ruling at this link. The opinion states that Philadelphia attorney and leading employment discrimination advocate Alan B. Epstein represented the objectors to the settlement, and today's ruling would appear to be a big victory for him and his clients.

Update: Later tonight, Jason Hoppin of The Recorder offers this report on the ruling.
Posted at 13:36 by Howard Bashman

A naked, highly intoxicated 110-pound female arrestee; male prison guards; a padded cell; and a restrainer board: The U.S. Court of Appeals for the Eighth Circuit today decided an appeal involving these facts. By a vote of 2-1, the panel held that the prison guards were entitled to qualified immunity on the arrestee's federal civil rights claim -- although the panel unanimously affirmed a $2,500 award in the arrestee's favor on a state law invasion of privacy claim. As a result of this ruling, the arrestee lost her right to collect her attorney's fees from the defendants. You can access the court's ruling at this link.
Posted at 11:49 by Howard Bashman

Elsewhere in today's newspapers: Today's edition of The Los Angeles Times reports here that "Calif. Court Limits Piracy Suits; State Supreme Court ruling on jurisdiction may set a precedent that could be followed by other states." And here the LATimes reports that "Court Fight Erupts Over Bid to Put Jury Talks on Camera; A Texas judge wants 'Frontline' to tape deliberations in a death penalty trial. Prosecutors are opposed to the idea."

The Boston Globe reports here that "Harvard Law School dean to step down in spring." And it's recommended that you get your mind out of the gutter before reading the first paragraph of this article:
A cease-fire was called yesterday in the ongoing feud between US Attorney Michael Sullivan and federal Judge Mark L. Wolf when Sullivan backed down and submitted to a public tongue-lashing from the judge.
Under the heading "Eighty percent of success is showing up," USAToday contains an article today entitled "Police lineups encourage wrong picks, experts say; Calls for reliability fuel push to show suspects one by one."

Finally, guest commentator Robert A. Levy addresses "Why civil libertarians are concerned" in an essay posted this morning at National Review Online.
Posted at 10:52 by Howard Bashman

Thou shalt not remove huge granite monument: Jonathan Ringel of the Fulton County Daily Report previews here the Eleventh Circuit's consideration an Alabama federal judge's recent ruling that requires the Chief Justice of Alabama's Supreme Court to remove a large granite monument to the Ten Commandments from Alabama's Judicial Building. The attorney for Chief Justice Roy Moore is already predicting victory in the Eleventh Circuit.

Relatedly, you can access here an interesting article about the legal debate surrounding if and when the Ten Commandments can be posted on government property. This article was published in the September-October 2002 issue of Liberty Online, a self-proclaimed "Magazine of Religious Freedom."
Posted at 10:13 by Howard Bashman

Just in time for the holidays: The Federalist Society emails to advise that it "now has an online store full of shirts, sweatshirts, mugs, and other items!" Although the online store (access here and here) is operated through CafePress, The Federalist Society did not follow law blogger Denise Howell's classic advice.
Posted at 09:56 by Howard Bashman

In the forecast: It appears very likely that "How Appealing" will receive its 300,000th page view at some point today, just six months and twenty days since this blog came into existence. Thanks everyone!

And in weather related news, the National Weather Service forecast for the town in which I live states:

Must remember to bring home with me tonight some extra work to do in case of a five-day weekend.
Posted at 06:41 by Howard Bashman

In Tuesday's newspapers: Adam Liptak, in today's edition of The New York Times, has an article entitled "Inviting TV Into Jury Room in a Capital Case." In other news, you can access here a report on a conference on free expression and the arts at Columbia University last week that focused on new limits on artistic freedom in a high-tech culture. Benjamin Weiser reports on the perp walk in the age of wealthy corporate executives charged with criminal wrongdoing. Not only did John Rawls die recently (obituary here), but so did Eugene Rostow (obituary here).

In today's edition of The Washington Post, this report asks "Is Judge's Past Prologue in Cheney Case?"
Posted at 06:37 by Howard Bashman

Monday, November 25, 2002
Now available online at An article entitled "California Justices Find Web Site Is out of Reach"; Jason Hoppin reports on the case the Ninth Circuit took en banc last Friday (and you can access my summary of that case here); Jonathan Ringel reports that "11th Circuit Reverses Church Arson Convictions" (I previously discussed that ruling here); and for those willing to undergo the free registration necessary to access articles on's Washington, DC site, you can access here Bruce Fein's review of John T. Noonan Jr.'s book critiquing the U.S. Supreme Court's federalism jurisprudence, and you can access here Evan P. Schultz's commentary critical of last week's ruling of the United States Foreign Intelligence Surveillance Court of Review.
Posted at 23:45 by Howard Bashman

"The reports of liberty's death are greatly exaggerated": Stuart Taylor Jr. offers a very sensible analysis of last week's ruling by the United States Foreign Intelligence Surveillance Court of Review.
Posted at 21:24 by Howard Bashman

Thanks SCOTUSblog! Today the Christian Broadcasting Network aired an interview that Pat Robertson conducted of Senator Orrin G. Hatch (R-UT). You can access a transcript of the very interesting interview here, under the headline "Will Democrats Filibuster Bush's Judicial Nominees?" Elsewhere, The Washington Post yesterday published Charles Lane's review of Kenneth W. Starr's new book, "First Among Equals." Compared to some of the other reviews that the book has received, Lane has some pretty favorable things to say about it. You can access three earlier reviews of the book via links available here, here, and here.
Posted at 21:07 by Howard Bashman

What do a Bridgestone tire and gangsta rap have in common? Adam Bonin provides the answer.
Posted at 21:00 by Howard Bashman

Texas trial judge says "Let's go to the videotape!" in juvenile death penalty deliberations, but appellate court responds "Not so fast!" A Texas state court trial judge was willing to allow the PBS program "Frontline" to videotape jury deliberations in the death penalty case about to get underway against a seventeen-year-old young man in Texas. Today, however, the Texas Court of Criminal Appeals -- that State's highest court in criminal cases -- said not so fast, The Associated Press reports here.
Posted at 20:41 by Howard Bashman

Sharply divided California Supreme Court decides anxiously awaited Internet jurisdiction case: c|net News.Com is reporting:
The California Supreme Court handed Hollywood's antipiracy efforts a setback Monday, ruling that a Texas resident who posted controversial DVD-cracking code online can't be sued in the Golden State.

The ruling, released by the court Monday, deals with just one part of Hollywood's multifaceted attack on DeCSS, a controversial bit of computer code that can assist in the copying of DVDs. The justices didn't address the legality of posting the software program online, saying only that Texas resident Matthew Pavlovich couldn't be sued in California for doing so.

"There is no evidence in the record suggesting that the site targeted California," the judges wrote in their majority opinion. But that didn't mean he couldn't be sued elsewhere, they noted. "Pavlovich may still face the music--just not in California," the court wrote.
Yoga aficionado Denise Howell, safely ensconced back in California after her recent trip to the Yale Law School bloggers conference, has this early report on the ruling, and she promises more coverage later. (And she's already delivered on that promise, twice.) You can access the California Supreme Court's ruling at this link. Associate Justice Janice Rogers Brown -- a jurist some have identified as a potential U.S. Supreme Court nominee -- wrote the majority opinion.
Posted at 19:12 by Howard Bashman

Political philosopher John Rawls has died: Today's edition of The Harvard Gazette contains this report that the author of "A Theory of Justice" died yesterday at the age of 81.
Posted at 17:12 by Howard Bashman

Supreme Court of Connecticut reverses $800,000 award in SIDS case: In a case that involves horribly tragic facts, today the Supreme Court of Connecticut reversed a $800,000 jury verdict awarded to the mother of a two-and-a-half-month-old infant girl who died from sudden infant death syndrome after a day care provider allowed the infant to nap on her stomach. The court ruled, in an opinion you can access here, that "expert testimony was required to assist the jury 'to understand the applicable standard of care and to evaluate the defendant's actions in light of that standard.'" Because plaintiff failed to introduce such expert testimony, the Connecticut Supreme Court reversed the jury verdict and ordered that judgment be entered in favor of the defendant day care provider.
Posted at 16:39 by Howard Bashman

Dean of Harvard Law School to step down at the end of this academic year: A press release that Harvard Law School issued today advises that "Robert C. Clark will conclude his service as Dean of Harvard Law School at the end of the 2002-03 academic year, he announced today." You can access Dean Clark's letter dated today declaring his intention to step down at this link.
Posted at 15:06 by Howard Bashman

Stuart Buck goes behind the scenes at the U.S. Supreme Court: And then he returns home and writes about what he saw in order to post it on his blog.
Posted at 14:36 by Howard Bashman

Second Circuit upholds preliminary injunction preventing sale of an allegedly copyright infringing Jewish prayerbook: Today the U.S. Court of Appeals for the Second Circuit affirmed the entry of a preliminary injunction that:
enjoins [the defendant] from disseminating a new version of Siddur Tehillat Hashem, a prayerbook widely used within the Lubavitch movement of Hasidic Judaism, pending resolution of [the plaintiff's] claim that [the defendant's] new version of the prayerbook violates [the plaintiff's] copyright in the original Siddur Tehillat Hashem by copying verbatim Rabbi Nissen Mangel's English translation of the Hebrew prayers, which appears in [the plaintiff's] Siddur Tehillat Hashem.
In so ruling, the Second Circuit rejected arguments that "the translation is not copyrightable" and that "the federal courts do not have jurisdiction to decide this dispute because adjudication of the dispute requires determinations of religious law and doctrine." Only five more shopping days till Hanukkah. You can access the Second Circuit's ruling at this link.
Posted at 14:13 by Howard Bashman

Dahlia Lithwick handicaps "the Supreme Court shuffle": In an essay just posted online at Slate, Dahlia Lithwick writes about how everyone else has been writing about whether the U.S. Supreme Court will soon be undergoing personnel changes now that Republicans are just about one month away from having control of both the White House and the U.S. Senate. She concludes by opining that Chief Justice William H. Rehnquist "won't let the curtain go down on him after the Lamest Term in History."

I certainly don't claim to have any special insight into Chief Justice Rehnquist's retirement plans, but I do know that the Supreme Court's merits docket could become a whole lot more interesting on December 2, 2002 if the Court grants review of a case challenging racial preferences in public law school admissions and of a case challenging criminal laws that prohibit homosexual sodomy.
Posted at 12:00 by Howard Bashman

FindLaw columnist says use the filibuster to block judicial nominees who are too conservative: FindLaw columnist Joanne Mariner has an essay today entitled "In Defense of the Filibuster."
Posted at 08:43 by Howard Bashman

In today's Los Angeles Times: Today's edition of The Los Angeles Times contains a profile of alleged dirty-bomber and enemy combatant Jose Padilla.
Posted at 08:36 by Howard Bashman

From the December 2, 2002 issue of The New Yorker: Jeffrey Toobin speaks with Linda Fairstein, the prosecutor who led the sex-crimes unit of the Manhattan district attorney's office, about recent developments in the Central Park jogger case. And Malcolm Gladwell answers the question, "What does 'Saturday Night Live' have in common with German philosophy?"
Posted at 08:25 by Howard Bashman

"Literally minutes of amusement!" Tom Tomorrow's cartoon this week about the war on terror and homeland security promises to provide "literally minutes of amusement!" See for yourself whether you agree.
Posted at 08:21 by Howard Bashman

In Monday's Washington Post: Monday's edition of The Washington Post contains an editorial calling on Congress next year to enact sensible, bipartisan tort reform measures. And a front page article entitled "GOP Looks To Move Its Social Agenda" explains:
Abortion rights will be a major battleground next year, too. Lott has promised a vote next Congress to outlaw a procedure that critics call "partial birth" abortion. The House can easily pass the ban on late-term abortions, and it appears Republicans should have the 60 Senate votes they need to follow suit and send it to the president.

Douglas Johnson, top lobbyist for the National Right to Life Committee, said an early head count shows at least 62 incoming senators will support the ban, which if enacted is destined for a Supreme Court challenge. Bush's plan to appoint many more conservative judges to the federal bench could pay dividends when abortion issues such as this reach the courts.

Republicans want to amend federal law to allow a person who violently harms or kills a pregnant woman to be charged for a separate offense of killing or harming the unborn child. This builds on the administration's efforts this year to classify a fetus as a human being worthy of health care coverage and embryos as "human research projects."

Many antiabortion activists believe there are two key preliminary steps to overturning Roe v. Wade: Solidly establish in law, government policy and the minds of voters that a fetus is a human being and, therefore, warrants equal protection; and get more conservative judges appointed, particularly to the Supreme Court.

Republicans also plan to press for legislation to make it a federal crime to transport minors from states with parental notification laws across a state line to obtain an abortion.
These provisions certainly will prove to be controversial, both among the general public and within the courts.
Posted at 00:26 by Howard Bashman

Sunday, November 24, 2002
"Civil liberties watchdogs are yapping over nothing": So says this editorial from The Wall Street Journal.
Posted at 19:24 by Howard Bashman

Ring is lord of Nebraska's death penalty: Last June, the Supreme Court of the United States ruled in Ring v. Arizona that juries, rather than judges, must find beyond a reasonable doubt the facts necessary to sentence a criminal defendant to the death penalty. You can access my contemporaneous coverage of that ruling here. In response to that ruling, a number of States -- not just Arizona -- have had to alter their laws governing the roles of the trial judge and the jury in deciding whether a defendant will receive the death sentence.

Today brings news that Nebraska's Legislature has concluded rewriting that State's death penalty laws (see local newspaper coverage here and here), although as I mentioned the other day Nebraska has decided to remain the only State in the Nation where the lone method of imposing the death penalty is the electric chair.
Posted at 17:18 by Howard Bashman

Did I promise I'd have more to say about judicial activism? Indeed I did. And I will. In fact, I have found the topic so worthy of discussion that I am making it the subject of my December 2002 appellate column to be published in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, on Monday, December 9, 2002. Sometime before then, while I am drafting that column, I will be certain to discuss here some of the very thoughtful emails that I received in response to my post on this topic from earlier this month, entitled "'Judicial activism' -- easy to criticize, but hard to define and identify." If you would like to receive via email a copy of my appellate column in PDF format on the second Monday of each month -- the day the column appears in the newspaper -- there's a free and easy sign-up form that you can complete here.
Posted at 15:42 by Howard Bashman

The time for celebration is over: Today's edition of The Denver Post is reporting: "A box of legal papers arrived at professor Michael McConnell's office at the University of Utah law school last week - reams of filings for cases before the 10th U.S. Circuit Court of Appeals."
Posted at 15:35 by Howard Bashman

Some additional coverage of the Alabama Judicial Building Ten Commandments monument controversy: The issue of U.S. News and World Report that hits newsstands tomorrow contains an interview with Chief Justice Roy Moore, who arranged for installation of the Ten Commandments monument in the Alabama Judicial Building. Last Monday, of course, a federal district judge in Alabama ruled that the monument had to be removed because its presence gave rise to an Establishment Clause violation. For a somewhat different take on the controversy, you can access here an article entitled "Roy Moore is a true Christian statesman." The article comes from the Baptist Press News Web site, operated by the Southern Baptist Convention. Accompanying this article is a high resolution photograph of the monument.
Posted at 11:48 by Howard Bashman

"Admirers, critics feel strongly about Shedd: Some people see an honest, caring judge; others see troubling biases": Today's edition of The State, a South Carolina-based newspaper, contains a lengthy profile of Dennis W. Shedd, whom the U.S. Senate recently confirmed to serve on the U.S. Court of Appeals for the Fourth Circuit. Update: The State today also published a second article about Judge Shedd, entitled "Senate clashed on judge's record," and you can access that article here.
Posted at 11:38 by Howard Bashman

In Sunday's major newspapers: Today's edition of The Washington Post contains an editorial that supports President Bush's proposal to restore order to the process of nominating and confirming federal judges. In a front page article about the war on terror, The Post reports that "Material Witness Law Has Many In Limbo." And here's an article entitled "Ads, Interest Groups New Factors in State High Court Races."

Today's edition of The New York Times contains a front page article on the aftermath of this week's ruling by the United States Foreign Intelligence Surveillance Court of Review. On a related note, Adam Liptak has the lead piece in today's Week in Review section, and his article is entitled "In the Name of Security." Finally, Adam Cohen offers an editorial observer essay about The Federalist Society entitled "Hell Hath No Fury Like a Conservative Who Is Victorious."

In today's edition of The Los Angeles Times, U.S. Supreme Court correspondent David G. Savage reports on a case to be argued December 4, 2002 that, according to legal experts, "has the potential to reshape the law governing everyday encounters between police and the public."

Update: Adam Cohen's harshly critical editorial observer essay about The Federalist Society published in The New York Times today is full of debatable assertions, but one error in particular cries out for correction. He writes toward the end of his essay:
The search for fictive liberal enemies reached a loopy low on the convention's last day, when an archconservative federal appeals court judge, Laurence Silberman, accused William Rehnquist's archconservative Supreme Court of having a secret plan to declare the death penalty unconstitutional. In an opinion just last month, the court reiterated its view that capital punishment is constitutional even for 16-year-olds. [emphasis added]
In truth, there was no U.S. Supreme Court opinion issued "just last month" holding "that capital punishment is constitutional even for 16-year-olds." Rather, last month, over the dissent of four Justices, the Court refused to review on the merits an original writ of habeas corpus in which the petitioner was contending that the death sentence he received was unconstitutional because he was under the age of eighteen when he committed his offense. The Supreme Court's refusal to consider that petitioner's case on the merits is far different from an opinion affirmatively expressing a ruling on the question presented. Moreover, the U.S. Supreme Court ruling that upheld the constitutionality of sentencing sixteen- and seventeen-year-olds to death issued back in 1989.
Posted at 10:12 by Howard Bashman

"Republicans vow to move on judicial nominees": See this article from today's edition of The Washington Times.
Posted at 10:04 by Howard Bashman

Miami-based federal district judge "sues over Nazi theft of family fortune": Sunday's edition of The Miami Herald contains this report on the lawsuit that Miami-based U.S. District Judge Ursula Ungaro-Benages has brought in federal court seeking millions of dollars in damages.
Posted at 00:54 by Howard Bashman

Saturday, November 23, 2002
Immigration judge orders deportation for alleged terror detainee whose hearings the Sixth Circuit ruled could not be closed to the press: The Associated Press is reporting that yesterday the immigration judge presiding over the removal hearing of Rabih Haddad, his wife, and three of their children ruled that they should be deported from the United States, rejecting their claim for political asylum. Whether the U.S. Department of Justice could prohibit press access to Haddad's deportation hearing was at issue in the widely-reported Sixth Circuit ruling (access here) released on August 26, 2002 holding that the USDOJ's blanket closure of deportation hearings for alleged terror-related detainees violated the First Amendment.
Posted at 23:24 by Howard Bashman

Don't get caught with too many sex toys in Texas: For those women who believe you can never be too thin, too gorgeous, or have too many sex toys, this news from the State of Texas will be of interest to you. An article published in Thursday's edition of The Longview (Texas) News-Journal reports that in Texas it is "illegal to 'wholesale promote' obscene materials or devices" and that "[t]he law allows investigators to assume that anyone with six or more of the items is intending to promote them." Of course, back on October 10, 2002 a federal district judge in Alabama struck down as unconstitutional that State's law banning the distribution of sex toys. (Access that ruling here and my original post reporting on it here.) Looks like Alabama is ahead of Texas on this score.
Posted at 23:09 by Howard Bashman

The AP provides a handy Ten Commandments litigation round-up: This afternoon The Associated Press issued a round-up of several cases pending throughout the nation that challenge the presence of monuments to the Ten Commandments on public property.
Posted at 22:58 by Howard Bashman

A bill to eliminate federal court jurisdiction over religious freedom-related cases: As mentioned here last night, recently I suggested in jest that Congress was considering legislation "sponsored by conservative religious groups, which would strip atheists of the ability to file Establishment Clause challenges in court."

Well, the joke may be on me after all. Reader Matthew Smith writes in to note that U.S. Representative Ron Paul (R-TX) had introduced a bill known as the First Amendment Restoration Act. The law would strip federal courts of jurisdiction over religious freedom-related cases. According to a press release that Congressman Paul issued after the Ninth Circuit announced its ruling in the Pledge of Allegiance case:
Congressman Ron Paul today condemned a federal appeals court ruling that the Pledge of Allegiance cannot be recited in schools because it contains the phrase "one nation under God."

"The judges who made this unfortunate ruling simply do not understand the First amendment," Paul stated. "It does not bar religious expression in public settings or anywhere else. In fact, it expressly prohibits federal interference in the free expression of religion. Far from mandating strict secularism in schools, it instead bars the federal government from prohibiting the Pledge of Allegiance, school prayer, or any other religious expression. The politicians and judges pushing the removal of religion from public life are violating the First amendment, not upholding it."

"The tired assertion of a separation of church and state has no historical or constitutional basis," Paul continued. "Neither the language of the Constitution itself nor the legislative history reveals any mention of such separation. In fact, the authors of the First amendment- Fisher Ames and Elbridge Gerry- and the rest of the founders routinely referred to "Almighty God" in our founding documents. It is only in the last 50 years that the federal courts have perverted the meaning of the amendment and sought to unlawfully restrict religious expression. We cannot continue to permit our Constitution and our rich religious institutions to be degraded by profound misinterpretations of the Bill of Rights."

Paul previously introduced "The First Amendment Restoration Act" to reassert true First amendment religious freedoms and end the kind of judicial overreach exhibited today. The bill becomes especially timely now, as it clarifies that federal courts have no jurisdiction whatsoever over matters of religious freedom. It also restores real religious freedom by making it clear that the federal government cannot forbid mention of religion, the Ten Commandments, or reference to God in both public and private life.
So, indeed there is proposed legislation that would prohibit anyone from filing Establishment Clause challenges in federal court. I seriously doubt that it will become law, however.
Posted at 16:03 by Howard Bashman

Senator Hatch expresses an interest in having more judges of Indian American heritage: Unlike American Indians, now known as Native Americans, Indian Americans are Americans whose ancestry traces back to the country of India. According to a press release issued yesterday by the US-India Political Action Committee (USINPAC), Senator Orrin G. Hatch "asked USINPAC to let him know about suitable Indian American candidates for Federal judgeships to increase their representation in the Federal judiciary. He will strive to get Indian Americans appointed to positions in the judicial and executive branches of the government." You can access the full press release here. Senator Hatch, of course, will chair the Senate Judiciary Committee in 2003.
Posted at 15:41 by Howard Bashman

Some noteworthy recusal news from across America: The Oklahoma state court trial judge who had been presiding over the criminal case against Terry Nichols, in which the State of Oklahoma is seeking the death penalty, has decided to recuse himself. You can access a report here via The Oklahoman. And this report from The Patriot-News of Harrisburg, Pennsylvania states that the trial judge who has been presiding over the federal criminal prosecution of four high ranking former and current Rite-Aid executives has decided to recuse herself from that case.
Posted at 15:29 by Howard Bashman

In Saturday's newspapers: The United States should revel in its litigiousness, rather than rue it, today's edition of The New York Times suggests in a feature article you can access here. The Los Angeles Times today contains an article entitled "Mormons vs. Misbehavior on Main St.; Court battle rages over a Salt Lake temple plaza where the church has enforced strict rules."
Posted at 15:24 by Howard Bashman

Computer glitch that omitted blacks from selection for jury pool leads Indiana Supreme Court to overturn death sentence: Yesterday's decision of the Supreme Court of Indiana does not yet appear to be available online, but you can read coverage of it here via the Gary, Indiana Post-Tribune and here via the Evansville Courier & Press.
Posted at 14:49 by Howard Bashman

Friday, November 22, 2002
Ears burning: Thanks to those people on the program at today's law blog conference at Yale who mentioned "How Appealing." Now if only this post's link to me actually took those who clicked on it to my blog, that would truly be something special. (Update: The link is now fixed; thanks LawMeme!)

After attending the conference, third-year Yale law student Nick Daum launched his own blog this afternoon. And in one of his earliest posts, he wrote:
One more unrelated thing before giving up on the initial posting euphoria.

Any law student out there who mistakenly stumbled onto this site, this is a message to you: read Howard Bashman's "How Appealing".

I remember I once had a college professor who told me that if you wanted to make yourself a better student with the least amount of effort, the simplest and best thing you could do would be to read the NY Times every day. For the law student, you can improve yourself effortlessly by reading How Appealing. It's now my first stop on the morning web surfing express.
Wow, you're too kind! (Link courtesy of The Comedian, who has created a cute little icon for linking through to "How Appealing" that you will find on the left-hand column of his blog.)

Finally, Philadelphia lawyer and friend Adam Bonin (also known as the husband of author Jennifer Weiner) has asked me to announce the launching of his blog, "Throwing Things," where the hit counter currently reflects the very lonely number of 000063. And if you're going to check out his hit counter, be sure also to check out the disclaimer located just above it.
Posted at 23:48 by Howard Bashman

My brand of humor lacks adequate sensitivity toward atheist concerns: Early on the morning of November 14, 2002, I posted this here:
President Bush signs Pledge of Allegiance law: The Associated Press reports here that "President Bush signed into law on Wednesday a bill reaffirming -- with a slap at the 9th U.S. Circuit Court of Appeals -- references to God in the Pledge of Allegiance and national motto."

Two related pieces of legislation -- one sponsored by conservative religious groups, which would strip atheists of the ability to file Establishment Clause challenges in court; and the other sponsored by small businesses, which would add the phrase "all others pay cash" to the motto "In God we trust" -- remain bogged down in committee.
This afternoon I received an email from a reader entitled "Atheists and the Constitution" which stated, in full:
"Two related pieces of legislation -- one sponsored by conservative religious groups, which would strip atheists of the ability to file Establishment Clause challenges in court;" ~

Wow, can you tell me how I could find more information on this? I looked for related bills on but there were no results. Also, would such a discriminatory law be Constitutional in your opinion? We would have heard about this sooner if it were Jews instead of atheists.
I wrote back in response:
I'm sorry, that was some tongue-in-cheek humor. Didn't mean to mislead anybody.
The person who sent the original email then replied:
It actually sounded realistic. As you know atheists are still prohibited by some State Constitutions from holding public office. And virtually the entire nation believes the "one nation under God" is an acknowledgment and not an assertion as if it actually said "one nation historically influenced by a belief in God."

"The recitation that ours is a nation 'under God' is not a mere acknowledgment that many Americans believe in a deity. Nor is it merely descriptive of the undeniable historical significance of religion in the founding of the Republic. Rather, the phrase "one nation under God" in the context of the Pledge is normative. To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and - since 1954 - monotheism" (Newdow v. US Congress, et al).
It's almost enough to cause me to pledge to forswear any further attempts at humor where atheism is concerned.
Posted at 23:28 by Howard Bashman

Now available online from You can access here an article entitled "Pennsylvania Justices Alter Judicial Election Conduct Rules," and here you can access Tony Mauro's preview (with an assist from Tom Goldstein) of some of the likely candidates for cert. in the weeks ahead, highlighting two very important cases in which review could be granted on the Monday following Thanksgiving.
Posted at 23:22 by Howard Bashman

"No decision holds that retarded suspects are unable to confess because they can't comprehend Miranda warnings": Seventh Circuit Judge Frank H. Easterbrook, in a very interesting unanimous three-judge panel opinion that you can access here, rejects the claim of a criminal defendant who "was sentenced to life imprisonment, which is essential to incapacitate [the defendant] (who appears to be undeterrable) and protect society" and who was claiming on appeal that "his mental shortcomings prevent him from making effective confessions and require him to be freed, because he can't understand the legal significance of Miranda warnings."

In a separate opinion issued today, also written by Judge Easterbrook, the Seventh Circuit created legal precedent for the mathematical proposition that "0 + 0 = 0." (See page 3 of this PDF file.)
Posted at 22:54 by Howard Bashman

Diversity of citizenship jurisdiction just became easier to establish in the Fifth Circuit: The normal rule is that a federal trial court can exercise diversity of citizenship jurisdiction if the amount in controversy exceeds $75,000 exclusive of interest and costs and the plaintiff is a citizen of one State and the defendant is a citizen of another State as of the date on which the suit is filed. Today a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled that even if actual diversity of citizenship was lacking when the plaintiff filed suit in federal court, if actual diversity of citizenship exists when the judgment is entered, the judgment will stand even though the suit never should have been allowed to proceed in federal court in the first place. Circuit Judge Emilio M. Garza dissented, arguing against the majority's expansion of the U.S. Supreme Court's 1996 ruling in Caterpillar, Inc. v. Lewis. You can access the Fifth Circuit's ruling at this link. I would not be surprised if the Fifth Circuit granted rehearing en banc in this case.
Posted at 22:42 by Howard Bashman

Is a criminal conviction for possession of child pornography a sure sign of mental illness? A federal district judge based in New York City thought the answer to this question was "yes" and therefore refused to consider departing below the applicable U.S. Sentencing Guidelines sentence for a defendant who introduced evidence showing that his mental illness caused him to commit the crime. Today the U.S. Court of Appeals for the Second Circuit reversed, thereby "recognizing the availability of diminished capacity departures in child pornography cases." You can access the Second Circuit's ruling at this link.
Posted at 22:25 by Howard Bashman

Late today, the Ninth Circuit granted rehearing en banc in a death penalty cases from Arizona that offers a little something for everyone: The U.S. Court of Appeals for the Ninth Circuit late today granted rehearing en banc in the death penalty case of Arizona state prisoner Warren Wesley Summerlin. You can access the order granting rehearing en banc at this link.

Careful followers of the Ninth Circuit's rulings might have gathered that this case was a likely candidate for rehearing en banc on several different occasions. Most recently, on November 4, 2002, the three-judge panel to which the appeal was originally assigned issued an order stating:
In response to the Motion for Clarification, the Court notes that when a case is heard or reheard en banc, the en banc panel assumes jurisdiction over the entire case, see 28 U.S.C. sec. 46(c), regardless of the issue or issues that may have caused any member of the Court to vote to hear the case en banc. If the Court votes to hear or rehear a case en banc, the en banc panel may, in its discretion, choose to limit the issues it considers. See, e.g., Rand v. Rowland, 154 F.3d 952, 954 n.1 (9th Cir. 1998); United States v. Perez, 116 F.3d 840, 843 n.2 (9th Cir. 1997). However, the en banc panel is under no obligation to do so. Neither General Order 5.2, nor the procedural posture of this case, alters this rule.

Thus, when the Court requests that the parties brief the question of whether a case should be heard or reheard by an en banc panel, it is referring to the entire case.
Rehearing en banc first appeared to be a legitimate possibility in this case on October 12, 2001, when the three-judge panel issued its ruling. Circuit Judge Stephen S. Trott wrote the majority opinion, from which Circuit Judge Alex Kozinski dissented in part, and from which Circuit Judge Sidney R. Thomas dissented in other part. And if that line-up didn't make the decision unusual enough, there's always the facts of the case to consider. As Judge Trott's majority opinion explains:
That same evening, Jane Roe [the name by which the Ninth Circuit chose to refer to Summerlin's defense lawyer] attended a Christmas party. She and prosecutor Doe left the party together and spent private time that night in what Doe later acknowledged under oath to have been an episode of "personal involvement . . . of a romantic nature." In a declaration dated October 12, 1984, prepared for state post-conviction proceedings, Jane Roe declared as follows: "I left [the Christmas party] with Mr. [Doe] and we spent time together that night, as a result of which I felt I could no longer ethically represent Mr. Summerlin."

The day after the Christmas Party, Jane Roe began to grapple with the implications of her relationship with the prosecutor arising from what she had done the night before. According to her testimony in state post-conviction proceedings, her frame of mind was that because of what had occurred between herself and Mr. Doe, she could no longer function as Summerlin's attorney.
This led Summerlin to argue that "his court-appointed public defender emerged from her one-night romantic relationship with the prosecutor with a fatal conflict of interest that adversely affected her representation of Summerlin at a critical stage of the proceedings."

But a different issue led the Ninth Circuit panel, by a 2-1 vote with Judge Kozinski dissenting, to order the federal district court to hold a hearing on Summerlin's petition. That issue, as framed by Summerlin, was:
That the trial judge's alleged use of and addiction to marijuana during pre-trial, trial, and sentencing proceedings, as evidenced by the judge's admission of addiction and felony conviction in 1991 of a marijuana crime, deprived Summerlin of due process of law.
The panel concluded that Summerlin was entitled to a hearing on this issue, reasoning:
Summerlin had a clearly established constitutional right in 1982 to have his trial presided over, and his sentence of life or death determined by, a judge who was not acting at that time under the influence of, or materially impaired by, a mind-altering illegal substance such as marijuana. See 28 U.S.C. sec. 2254(d)(1). Our conclusion regarding this aspect of a "mentally competent tribunal" is especially appropriate in a jurisdiction such as Arizona where in a capital case, the trial judge, not a jury, makes both the initial and the final decision as to whether a convicted defendant shall live or die. * * * One's legal conscience simply recoils at the shocking thought that the due process clause of the Fourteenth Amendment is satisfied by a judge presiding over a criminal trial and making life or death sentencing decisions while under the influence of, or materially impaired by, the use of an illegal mind-altering substance. Such proceedings before a mentally incompetent judge would be so fundamentally unfair as to violate federal due process under the Constitution.

* * *

The experts tell us that we can tolerate a certain number of insignificant parts of arsenic in our drinking water and a certain irreducible number of insect parts in our edible grain supplies, but we need not, and we should not, similarly tolerate a single drug addicted jurist whose judgment is impaired, especially in a case involving life and death decisions. Neither should we put to death any prisoner so condemned by such a wayward judge.

It is difficult to gainsay the importance of enforcing with efficient and sensible sanctions the core due process guarantees in our Constitution. To look the other way in the face of certain serious constitutional deficiencies is to render those guarantees "'a form of words,' valueless and undeserving of mention in a perpetual charter of inestimable human liberties." Mapp v. Ohio, 367 U.S. 643 (1961).

* * *

The Constitution may not entitle everyone to the wisdom of Solomon, but it does at a minimum entitle everyone to judicial judgment not impaired by mind-altering illegal drugs. We see no cause to be concerned about the stability of the justice system by pausing here to make sure that the Constitution has been respected and that the State will not take life without due process of law.
In response to this holding, Judge Kozinski wrote an impassioned dissent that concluded:
Nothing Summerlin has presented, and nothing the majority says in its opinion, suggests even remotely that Judge Marquardt's private problem had any effect on his handling of Summerlin's case (or any other case). The majority's conclusion that Summerlin's lawyers are entitled to go on a fishing expedition through Judge Marquardt's private life is a tragedy for Marquardt and a disaster for the administration of justice in the nine western states. I soberly dissent.
In the midst of Judge Kozinski's dissent (which you certainly should read in full), Judge Kozinski even notes that Judge Marquardt's reversal record on appeal was better than the Ninth Circuit's.

Judge Thomas's dissent argues that he would have held that Summerlin's replacement lawyer offered ineffective assistance of counsel at the sentencing phase. To top things off, Summerlin also raises on appeal a challenge to Arizona's death penalty scheme that allowed the trial judge to sentence him to death, a procedure that the U.S. Supreme Court held was unconstitutional last term in Ring v. Arizona, but that ruling may or may not apply on habeas corpus review.
Posted at 19:38 by Howard Bashman

Now that Eugene Scalia's recess appointment has expired, President Bush appoints him as Acting Solicitor of the Department of Labor: The Associated Press has this report.
Posted at 19:35 by Howard Bashman

Tonight on "How Appealing": A whole bunch of other appellate decisions issued today that merit mention here, and later tonight some of those court opinions will actually receive it. And, if time permits this evening, I will recount an email exchange from earlier today (with names removed to protect the innocent) that I had with a reader who seems to have taken the second paragraph of this post far too seriously.
Posted at 17:38 by Howard Bashman

U.S. Court of Federal Claims decides F. Lee Bailey v. United States: Yesterday the U.S. Court of Federal Claims decided a dispute between attorney F. Lee Bailey and the United States government involving which of those two parties was entitled to a whole lotta money.

To summarize the facts of the dispute, attorney Bailey was permitted to hold onto shares of stock belonging to a client of his whom the government was prosecuting on criminal charges. The government was also seeking forfeiture of the stock. While the stock was in Bailey's possession, it greatly increased in value. Bailey contended that the government was only entitled to recover the value of the stock when it came into his possession.

In an opinion you can access here, the Court of Federal Claims disagreed, holding that the appreciated value of the stock was due to be forfeited to the United States. (Thanks to a reader for sending along word of this ruling.)
Posted at 17:20 by Howard Bashman

How might someone learn that tobacco is addictive? Circuit Judge Alex Kozinski counts the ways: You could read accounts of Christopher Columbus's travels in the late 1400's, you could read the Surgeon General's official report issued in 1988, or you could watch the television series "Friends" in the fall of 1994. Last but certainly not least, you could read this opinion that the Ninth Circuit issued today.
Posted at 16:42 by Howard Bashman

Louisiana intermediate appellate court upholds that State's 197-year-old sodomy law: The Associated Press offers this report concerning a ruling that Louisiana's Court of Appeal for the Fourth Circuit issued on Wednesday. The opinion does not appear to be available online at this time.
Posted at 14:28 by Howard Bashman

Some anonymous praise of "How Appealing": Here, via the Greedy Clerks board. Thanks, whoever you are!
Posted at 14:03 by Howard Bashman

Chief Justice Rehnquist sustained a knee injury last night, The AP is reporting: The Associated Press is reporting:
Chief Justice William H. Rehnquist canceled a speech Friday in Alabama after falling and injuring his knee.

Supreme Court spokeswoman Kathy Arberg said Rehnquist was treated at a Washington-area hospital after hurting himself at his home Thursday night.

"He's fine but he injured his knee and couldn't make the trip," she said.

Arberg said the injury caused swelling from excess fluid and Rehnquist must use crutches. She did not know other details about the accident or expected recovery time.
"How Appealing" of course wishes the Chief Justice a speedy and pain-free recovery. You can access the complete AP article at this link. You can learn a bit more about the lecture the Chief Justice was to have delivered today at the University of Alabama School of Law at this link.
Posted at 13:44 by Howard Bashman

And they only read certain magazines for the articles, too: Today's news from Indiana University's Bloomington campus -- "Officials to view porn for legalities; Administrators to use tape to consider disciplinary action." You can access news coverage of today's developments here, via The Indiana Digital Student, and here, via You can access my prior coverage of this controversy here.
Posted at 11:38 by Howard Bashman

Here and there: A letter to the editor published today in The Salt Lake Tribune contends that "In his Nov. 10 commentary, Sen. Orrin Hatch attempted to excuse himself for his role in the current crisis in federal court vacancies by deceptively citing a selective series of facts." And a guest commentator writing at National Review Online favors Eldred over Ashcroft.
Posted at 11:22 by Howard Bashman

A Modest Proposal: A divided three-judge panel of the Michigan Court of Appeals ruled one week ago today that a man who tried to sell his ten-month-old daughter to another (it just happened that "another" was an undercover police officer) could not be convicted of the state law offense of "child abandonment." Nevertheless, as the majority opinion observes, "In response to this case and the publicity it generated, the Legislature enacted with unusual quickness a specific criminal statute that prohibits the sale or purchase of people." You can access the majority opinion here and the dissenting opinion here. Judge Richard Allen Griffin -- one of President Bush's nominees to serve on the U.S. Court of Appeals for the Sixth Circuit -- joined in, but was not the author of, the majority opinion.
Posted at 11:07 by Howard Bashman

Sharply divided en banc Sixth Circuit resolves death penalty appeal of defendant with strong claims of "actual innocence" and "miscarriage of justice": Today a sharply divided en banc U.S. Court of Appeals for the Sixth Circuit -- I get to use that phrase so often that I've programmed a special key to type it for me -- ruled 6-5 that a Tennessee prisoner sentenced to death who presented, at least in the view of six judges, strong claims of "actual innocence" and "miscarriage of justice" was entitled to have the Supreme Court of Tennessee decide whether any state court avenue of relief remains open to the prisoner.

Senior Judge Gilbert S. Merritt wrote the majority opinion, in which Chief Judge Boyce F. Martin, Jr. and Circuit Judges Martha Craig Daughtrey, Karen Nelson Moore, R. Guy Cole, Jr. and Eric L. Clay joined. Circuit Judge Danny J. Boggs (you were expecting someone else?) wrote the lead dissenting opinion, in which Senior Circuit Judges Alan E. Norris and Eugene E. Siler, Jr. and Circuit Judge Alice M. Batchelder joined. Circuit Judge Ronald Lee Gilman issued a separate dissent, in which he remarked:
Because I am not comfortable with either the majority opinion or Judge Boggs's dissent, I write separately to express my own views. Although I agree with the majority opinion that the petitioner presents a strong claim for habeas relief, at least at the sentencing phase of the case, I disagree with the decision to certify questions to the Tennessee Supreme Court. Judge Boggs lays out a cogent argument to the effect that the majority's questions are loaded with a number of unwarranted assumptions, the answers to which will not advance the ultimate resolution of this case. I therefore agree with Judge Boggs that this court can and should decide the case on the merits as it is currently before us.

Although I agree with Judge Boggs's rationale on the question of certification, I decline to join his conclusion that we should affirm the district court's opinion. I find particularly disturbing the notion that the defendant's entitlement to relief hinges on a hypothetical statistical analysis that attempts to find mathematical precision in an endeavor that in the end requires a judgment call based on a sound understanding of human nature. I agree with Judge Merritt's response on this point as expressed in footnote 4 of his opinion. Judge Boggs's conclusion that "an honest application of the Schlup standard means that a prisoner can meet it only if a judge can conscientiously assert that every reasonable juror is almost certain to vote to acquit" seems to me an overstatement of Justice Steven's language that the test is whether "it is more likely than not that no reasonable juror would have convicted." Judge Boggs's interpretation would make the Schlup standard virtually impossible for a defendant to meet. In my opinion, it is a misreading of the standard as articulated by the Supreme Court.

In sum, I believe that there is no need to certify any questions to the Tennessee Supreme Court and this court should decide the issues currently before it on the merits. But I also disagree with Judge Boggs's interpretation of the Schlup standard and his resulting resolution of this case. Finding myself caught between Scylla and Charybdis (to say nothing of medieval angels and Foucault), I respectfully file this separate dissent.
You can access the court's en banc ruling at this link.
Posted at 10:36 by Howard Bashman

In Friday's edition of The New York Times: An article you can access here reports that "Federal judges across the country are upset after learning that although they did not receive a raise this year, a provision buried deep in the domestic security bill could allow hefty bonuses for some court administrators who work for them." And here The Times takes a look back at the career of Senator Strom Thurmond (R-SC).
Posted at 07:19 by Howard Bashman

Thursday, November 21, 2002
Eleventh Circuit rejects challenge that federal statute criminalizing church arson is facially unconstitutional: In a very interesting opinion, the U.S. Court of Appeals for the Eleventh Circuit today rejected a defendant's facial challenge to the constitutionality of a federal statute that criminalizes church arson. The court, however, did conclude, by a 2-1 vote, that the statute was unconstitutional as applied to the defendant and therefore vacated his conviction. Senior Circuit Judge Hill wrote the majority opinion. Senior Circuit Judge Hall, visiting from the Ninth Circuit, dissented from the court's conclusion that the statute was unconstitutional as applied. Unfortunately for readers who were hoping for a panel that consisted of Circuit Judges Hill, Hall, and Hull, the third member of the panel was Circuit Judge Birch.
Posted at 21:35 by Howard Bashman

Online law school graduates first class: Wired News offers this report, which explains that the American Bar Association and the State Bar of California still seem to prefer the in-person method of legal instruction. How Twentieth Century of them!
Posted at 21:21 by Howard Bashman

While turtles can bring suit in the Eleventh Circuit, the Illinois Supreme Court today squelched concerns that iguanas would be named as defendants: Although turtles may bring suit within the Eleventh Circuit (as I explained here back on September 30, 2002), today Justice Thomas (no, not that Justice Thomas) of the Supreme Court of Illinois issued a majority opinion which explained that "fears of iguana litigation will never be realized." To put the issue in better context, the case involved a tort reform statue, and the majority opinion explained:
Further, Lilly held that by using the phrase "could have been sued," the legislature did not mean to include merely theoretical actions. According to Lilly, such a construction could include a plaintiff's wife, his state, his god, or his pet iguana, because a plaintiff could theoretically file a piece of paper naming such persons, animals, or entities as defendants. Lilly concluded that the legislature did not intend "such a ridiculous result."

* * *

Further, we disagree with Lilly's sarcastic conclusion that including an employer who has statutory immunity from tort suits in the division of fault would mean that a plaintiff's pet iguana could also be included because a person could physically file a paper naming his pet as a defendant in a suit. Such an analysis ignores the first part of the relevant statutory phrase. Section 2-1117 does not include in the division of fault "anyone who could have been sued by the plaintiff." Rather, it includes "any third-party defendant who could have been sued by the plaintiff." In other words, the party must already have been brought into the case by a defendant for that party to be included in the division of fault. Unless defendants in tort suits begin filing contribution claims against the plaintiff's pets, Lilly's fears of iguana litigation will never be realized.
So, iguanas can continue to rest easy in the State of Illinois. You can access the complete ruling of the Supreme Court of Illinois at this link. (Thanks to Illinois-based attorney Michele Miller for sending along news of this ruling.)
Posted at 20:53 by Howard Bashman

Supreme Court of Illinois agrees that life imprisonment for fifteen-year-old who stood look-out for a murder was unconstitutionally disproportionate: Although the applicable sentencing statute required imposition of a sentence of life without parole, today the Supreme Court of Illinois affirmed the trial court's order sentencing the youth instead to fifty years behind bars on a holding that a sentence of life would be unconstitutionally disproportionate in violation of the Illinois Constitution. You can access the Illinois Supreme Court's unanimous ruling at this link. Perhaps that court relied on the Illinois Constitution because such disproportionality arguments face grave difficulties under the U.S. Constitution, as this 1991 ruling of the U.S. Supreme Court serves to remind us.
Posted at 20:51 by Howard Bashman

Women rule! (part four): When I mentioned here last night that at one time a majority of the justices serving on the Supreme Court of Texas were women, chances are you were doubtful, as was I. But, thanks to Fred Riemann, law librarian for ChevronTexaco in Houston, Texas, I now can offer some actual historical support for that proposition. As this link details, in 1925 Texas had an all female Supreme Court. Wow!
Posted at 17:11 by Howard Bashman

Attention all lawyers who handle civil litigation in federal court: On December 1, 2002 -- which is just days away -- critically important amendments to the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure will go into effect. In my role as an appellate lawyer, the change that I view as most important is an amendment to Federal Rule of Civil Procedure 58 that will limit the time to appeal in cases in which the trial court fails to enter judgment by means of a separate document.

As I explained in my recent monthly appellate column that described the most important of the impending FRAP changes:
Current FRAP 4(a)(7)--the problem: The most important change by far to the FRAP that will occur in December 2002 results from an amendment to FRAP 4(a)(7) and a simultaneous, complementary amendment to Federal Rule of Civil Procedure 58.

FRCP 54(a) defines the term "judgment" as "any order from which an appeal lies." FRCP 58, in its current form, consists of a single, lengthy paragraph that contains in its middle the following two sentences: "Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth."

Current FRCP 58's requirement that federal district courts set forth judgment on a separate document, or else no judgment exists, has given rise to very serious problems on appeal. The problems stem from the failure of district courts to comply rigorously with FRCP 58's separate document requirement.

Under current FRAP 4(a)(1), the thirty days (or sixty days if the federal government is a party) in which to take an appeal in a civil case never begins to run unless judgment is entered in the trial court. Similarly, the ten-day period in which to file post-judgment motions under FRCP 50, 52 and 59 never begins to run.

Thus, under the current rules, where no judgment is entered on a separate document in the trial court, the time for appeal and for filing post-judgment motions in the trial court extends indefinitely. As Seventh Circuit Judge Frank H. Easterbrook has explained, "A party safely may defer the appeal until Judgment Day if that is how long it takes to enter the document." In re Kilgus, 811 F.2d 1112, 1117 (7th Cir. 1987).

New FRAP 4(a)(7)--the solution: To avoid the endless opportunity to appeal in a civil case in which judgment has not been entered on a separate document, current FRCP 58 is being entirely rewritten effective December 1, 2002. New FRCP 58(b) provides that a ruling that otherwise qualifies as a final, appealable decision, except that no judgment has been entered on a separate document, will become a judgment (subject to appeal or post-judgment motions) upon the expiration of 150 days from the entry of the decision.

Thus, 150 days after the entry of a final decision in a case in which no judgment has been entered on a separate document, new FRCP 58(b) and new FRAP 4(a)(7) dispense with current FRCP 58's requirement that judgment be entered on a separate document. Under these new rules, the thirty days (or sixty days if the federal government is a party) in which to file a timely appeal will begin to run 150 days after entry of a final decision in a civil case in which no judgment on a separate document was entered. New FRAP 4(a)(7) also allows a party that wishes to appeal sooner, even in the absence of a judgment on a separate document, to waive the separate document requirement and appeal before the 150 days have expired.

The Advisory Committee on Appellate Rules deserves praise for eliminating the endless period in which to appeal or file post-judgment motions in civil cases in which final judgment has not been entered on a separate document. Unfortunately, however, the rule amendments accomplishing this result likely will give rise to several new concerns.

Potential problems with new FRAP 4(a)(7): The first difficult question that federal courts will have to grapple with is the impact of new FRCP 58 and new FRCP 4(a)(7) on civil cases in which a final decision was entered without a judgment on a separate document more than 180 days (or 210 days if the federal government was a party) before December 1, 2002, when the new rules take effect.

The Supreme Court's orders amending the FRAP and FRCP usually provide that rule amendments shall apply to pending cases "insofar as just and practicable." This paraphrases 28 U.S.C. sec. 2074(a) of the Rules Enabling Act, which provides that new procedural rules may be applied to pending cases unless it "would not be feasible or would work injustice, in which event the former rule applies."

First, courts could conclude that the amendments to FRAP 4(a)(7) and FRCP 58 do not apply to cases in which a final decision without a judgment on a separate document was entered before December 1, 2002. Such a conclusion would preserve the endless opportunity to appeal that had previously existed in those cases, which makes this approach unlikely to be adopted.

Second, on December 1, 2002, when the amendments take effect, courts could start the 150-day clock running toward the entry of an appealable, final judgment in pending civil cases that have a final decision but no judgment on a separate document. This would give all parties in such cases at least 180 days from December 1, 2002 in which to file an appeal.

Third, the rule could be applied in a fully retroactive manner, so that as of December 1, 2002 appeals could no longer be filed in civil cases lacking a judgment on a separate document in which the final decision was reached more than 180 days (or 210 days if the federal government is a party) earlier. Parties in such cases who have reason to fear the consequences of this third option should file their notices of appeal or post-judgment motions before December 1, 2002, not after.

Two other, very significant problems arise from the opportunity new FRAP 4(a)(7) gives to parties to appeal immediately in the absence of judgment entered on a separate document.

The first problem involves the interplay between appeal and timely-filed post-judgment motions. While new FRAP 4(a)(7) allows a party desiring to appeal to waive the requirement of a judgment on a separate document, a party seeking to file a timely post-judgment motion does not seem to have that option. Thus, in a case in which neither the plaintiff nor the defendant is entirely satisfied with the result, one party could appeal promptly from the decision, while the other could wait five months for an actual judgment to exist, which would then allow the filing of timely post-judgment motions in the trial court.

A similar problem arises where the opposing parties both wish to file an appeal. One party could appeal promptly, while the opposing party could wait the full 180 days to file a timely appeal. In the interim, should the federal appellate court move ahead with the pending appeal or delay proceedings, perhaps unnecessarily, to see if the opposing party will appeal some six months later?

One way to cure both of these problems would be to amend new FRCP 58(b) to provide that the requirement that judgment be entered on a separate document is also eliminated within the 150-day period following the entry of an otherwise appealable decision lacking a separate judgment once any party files either a notice of appeal or a motion in which the moving party expressly seeks relief under FRCP 50, 52, 59 or 60. This would start the time for all parties to appeal, or to file post-judgment motions, as soon as any party appeals or files one of the specified motions in the 150-day period following the entry of a final decision that is unaccompanied by the entry of judgment on a separate document. Under my proposal, as under the current rules, if a timely post-judgment motion were filed, the time for appeal would not begin to run until entry of an order deciding the motion.
Now that December 1, 2002 is just around the corner, I feel more strongly than ever that the impending amendments to FRCP 58 are likely to give rise to at least as many complex problems of administration for lawyers and for federal appellate courts as FRCP 58 in its current form has caused.

It would have been so much easier had the Rules Advisory Committee eliminated altogether the requirement that a judgment in a civil case be set forth on a separate document to start the time in which to appeal. The rule I prefer would be that once a trial court enters a decision that resolves all claims as to all parties, the time for appeal would begin to run at that moment whether a judgment is set forth on a separate document or not. Does anyone disagree?
Posted at 16:49 by Howard Bashman

Detroit News columnists denounce the embargo on Sixth Circuit nominees from Michigan: In this past Sunday's edition of The Detroit News, two columnists each denounced the embargo that Michigan's U.S. Senators have placed on nominees from Michigan to the U.S. Court of Appeals for the Sixth Circuit. You can access here an op-ed entitled "Levin should end judicial vendetta," and you can access here an op-ed that asks in its closing paragraphs, "What if Democrats had kept control of the U.S. Senate? Would the four Michiganians nominated by Bush to the U.S. 6th Circuit Court of Appeals be left twisting in the wind next year because of refusal of Michigan Sens. Carl Levin and Debbie Stabenow to sign off on them?" (Via The LitiGator.)
Posted at 16:07 by Howard Bashman

Richard A. Posner speaks out against the "enormous expansion" of intellectual property law: Seventh Circuit Judge Richard A. Posner delivered remarks on Tuesday of this week at an event entitled "Intellectual Property Law: A New Perspective." Declan McCullagh of c|net News.Com offers this report. (Link via Delaware Law Office.)
Posted at 16:05 by Howard Bashman

Arkansas must totally revamp its system of public education, Arkansas Supreme Court rules: The Associated Press is reporting this afternoon:
Arkansas has failed its 450,000 public school children by not devoting enough money to schools and distributing the money unfairly, the state Supreme Court said Thursday.
You can access the exceptionally lengthy opinion that the Supreme Court of Arkansas issued today at this link.
Posted at 14:09 by Howard Bashman

Appellate metaphysics: Determining whether "when a tree falls in the forest with no one around, does it still make a sound" is beyond the scope of this Web log. So, instead, allow me to pose the question whether a Missouri Court of Appeals decision that reverses a $51.5 million award against Wal-Mart would receive any press coverage if the appellate court decision fails to mention the size of the award that's being set aside? Until now, the answer to that question seems to be "no."

You can access Monday's the ruling of the Missouri Court of Appeals, Southern District, which set aside a $51.5 million award against Wal-Mart, at this link. You can access press coverage of the trial court's original award against Wal-Mart at this link courtesy of The Joplin (Missouri) Globe, and here's a report on the original award from VerdictSearch. The law firm of Bryan Cave represented Wal-Mart on appeal. (Thanks to former Eighth Circuit law clerk Ed Martin for sending along a pointer to this ruling.)
Posted at 13:35 by Howard Bashman

Class action appellate news, some big, some little: A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit yesterday granted a petition filed by some of the Nation's largest health insurance providers seeking an immediate appeal from the order of the U.S. District Court for the Southern District of Florida certifying a class action of a nationwide RICO class of 600,000 doctors who claim that every insurance company shortchanges the doctors on reimbursements. The Eleventh Circuit's order does not yet appear to be available online.

In other news, the Sixth Circuit issued an opinion-like order today that denies permission to appeal from a class certification order in a huge class action in which the "plaintiffs claim that they were overcharged for air travel as a result of prohibitions against 'hidden-city ticketing.'" The order states that the plaintiffs are seeking more than $1 billion in damages from several large airlines.

Finally, on Tuesday of this week the Eleventh Circuit ruled that Federal Rule of Civil Procedure 23(f) -- which allows a federal court of appeals to grant interlocutory appellate review of a federal district court's order certifying a class action -- does not apply to class action orders entered by a U.S. Bankruptcy Court. Accordingly, in that case the Eleventh Circuit ruled that the federal district court (which normally hears appeals taken from bankruptcy courts) would be the proper court to consider whether to hear the defendants' appeal from a bankruptcy court order certifying a class action.
Posted at 13:17 by Howard Bashman

Justice Anthony Kennedy attends dedication of new courthouse in Columbia County, Georgia: Today's edition of The Augusta Chronicle reports here on the visit of U.S. Supreme Court Associate Justice Anthony M. Kennedy to Columbia County, Georgia yesterday to participate in the dedication of that county's brand new courthouse. According to the article, "Justice Kennedy said he was taking a 'splendid' report of the county's judicial center back to the other Supreme Court justices." You can access photos of Justice Kennedy at the ceremony here and here.
Posted at 10:28 by Howard Bashman

Third Circuit grants rehearing en banc to review further bankruptcy ruling that created a circuit split: Three days ago, the U.S. Court of Appeals for the Third Circuit granted rehearing en banc (access the order here) in a case where the three-judge panel's opinion was criticized as having "departed from 100 years of settled bankruptcy law." Because the next installment of my annual round-up of Third Circuit en banc cases won't be published in The Legal Intelligencer until October 2003, here's a quick summary of what this case is all about.

As this helpful alert from the Greenberg Traurig law firm's Web site explains:
In a possibly far-reaching decision, the Third Circuit Court of Appeals has held that only a trustee (which includes a debtor-in-possession) may invoke 11 U.S.C. sec. 544(b) to avoid fraudulent transfer claims. * * * The Court's decision rejects the common practice of bankruptcy courts' allowing creditors' committees to bring such claims derivatively. This decision promises to influence numerous cases and may have unforeseen effects on other areas of bankruptcy practice.
Additionally, Shannon P. Duffy of The Legal Intelligencer has a full report on the grant of rehearing en banc, and you can access it here.

The order granting rehearing en banc -- as such orders usually do -- vacates the panel's decision, but interestingly the order includes the statement that "Judges Alito and Fuentes would allow the panel opinion to stand pending en banc review." Circuit Judge Julio M. Fuentes wrote the panel opinion, and Circuit Judge Samuel A. Alito, Jr. concurred in it (as did Circuit Judge Anthony J. Scirica, although he didn't join in expressing the view that the panel's ruling should stand pending en banc review).

The other two en banc cases currently pending before the Third Circuit are summarized in my October 2002 appellate column, which you can access here.
Posted at 10:10 by Howard Bashman

I disagree: The other day, FindLaw published an essay by guest columnist Shavar D. Jeffries in which he argued that a recent Michigan Court of Appeals opinion holding that a pregnant woman may use deadly force to protect her fetus even when she does not fear for her own life conflicts with U.S. Supreme Court rulings that recognize a woman's right to obtain an abortion.

I disagree that any such conflict exists. Back on October 17, 2002 in a post you can access here, I characterized the Michigan appellate court's decision a "must-read appellate opinion" and went on to explain:
[T]he state intermediate appellate court's opinion * * * qualifies as one of the most interesting, well-written, and closely reasoned appellate decisions that I have had the pleasure of reading in some time. It is very easy to understand and -- best of all -- is just six pages long. Be sure to read it.
You can access the Michigan court's opinion here and decide for yourself whether or not you agree with Jeffries's thesis.
Posted at 09:07 by Howard Bashman

In Thursday's newspapers: Today's edition of The Los Angeles Times contains an article by David G. Savage that begins:
The Senate quit for the year Wednesday having confirmed 72 new judges appointed by President Bush, the best one-year record since 1994 for White House judicial nominees.

However, the president's advisors were disappointed because nearly half of Bush's selections to the U.S. appeals courts were blocked by the Democratic-controlled Senate.
And USAToday contains a report entitled "Moussaoui's link to 9/11 in doubt; Defendant met with planner but could have been involved in separate terror plots, officials say."
Posted at 08:40 by Howard Bashman

The second day after Dennis W. Shedd's confirmation to serve on the U.S. Court of Appeals for the Fourth Circuit: The Salt Lake Tribune contains an article in today's edition entitled "Hatch Joyous After Thurmond's Judge Candidate Gets OK." The Advocate, a newspaper based in Baton Rouge, Louisiana, today reports on how the vote against Shedd by Louisiana's Democratic incumbent Senator Mary Landrieu is affecting the run-off election in that State. Finally,, a Web site that says it is dedicated to advancing Christian causes, features an article entitled "Liberals Fear 'Harmful Implications' From Judicial Confirmations."
Posted at 08:30 by Howard Bashman

Local celebrity: Today's edition of The Legal Intelligencer -- Philadelphia's daily newspaper for lawyers, and the publisher of my monthly column on appellate litigation -- features on page three as a stand-alone article the second-half of Tony Mauro's Courtside column from this week, which focused on "How Appealing." Plus, my photo accompanies the article. Thanks, Legal Intelligencer!
Posted at 08:14 by Howard Bashman

Wednesday, November 20, 2002
Ninth Circuit considers the "special maritime and territorial jurisdiction of the United States" and the "passive personality principle": Today the U.S. Court of Appeals for the Ninth Circuit considered whether a federal court based in California could adjudicate federal criminal charges against a foreign citizen who was employed by a foreign registered cruise ship and who had unlawful sexual contact with a minor, a twelve-year-old United States citizen, while the ship was in Mexican territorial waters. The Ninth Circuit affirmed the defendant's convictions in an opinion you can access here both because the cruise began and ended in the United States and because it was otherwise proper to assert jurisdiction over this extraterritorial crime committed against a United States national.
Posted at 22:20 by Howard Bashman

Is a solution to the Ten Commandments litigation simply to "Hang Six"? Steven Waldman, who about fifteen years ago served as my editor-in-chief on The Columbia Daily Spectator, is writing a series of essays this week at Slate on the emergence from bankruptcy of his religion-oriented Web site Beliefnet. In today's entry, Steve notes that Gregg Easterbrook a while back published a piece on Beliefnet asserting that if the Ten Commandments were simply narrowed down to the six that, according to the New Testament, Jesus viewed as most important, any establishment clause concerns would evaporate. You can access Gregg Easterbrook's essay at this link.
Posted at 21:24 by Howard Bashman

Women rule! (part three): To further prove my unwavering respect for women, I am currently composing law-related posts rather than watching The Victoria's Secret Fashion Show, which is now airing on the CBS affiliate here in Philadelphia. I do, however, reserve the right to watch the show on tape at a future time.

After my first "Women rule!" post appeared here earlier today, I received numerous emails observing that Minnesota's Supreme Court at one time had a majority of female justices. Here's an email that arrived from a partner at the Minneapolis office of Faegre & Benson LLP:
For what it's worth (probably not much), a majority of the Minnesota Supreme Court were women for several years in the mid-1990s, and it was reported at that time that we were the first state in which this situation obtained. Since that time, all of the members of the then-female majority have retired, and not all of them were replaced by other women, so we now have only two women on the seven-judge court, but one of those is the chief justice.

Your blog, by the way, is a regular part of my morning routine; indeed, I often check it several times a day. It is invariably interesting and often helpful. I'm amazed at your level of energy.
A former Minnesota lawyer who now teaches at the Oklahoma City University School of Law sent along this link to an article that ran in The Christian Science Monitor mentioning that in the early 1990's women were a majority on Minnesota's highest court. Of course, this rush to ensure I knew that Minnesota's highest court once had a majority of female justices was unnecessary, because The Associated Press article reporting on next year's composition of the Supreme Court of Washington State, which I featured in my first post on this topic, mentioned that Minnesota's highest court once boasted the same distinction.

All the focus on Minnesota allowed reader Patrick Bryant to be the only one to note in an email to me that the Supreme Judicial Court of Massachusetts recently had a majority of women justices. And this press release that Patrick turned up also notes that so did the Supreme Court of Texas.

Thanks to everyone who wrote in on this subject matter. We appear to be well on the way to a day when having a majority of female justices on a State's highest court will not merit any press coverage.
Posted at 20:43 by Howard Bashman

Women rule! (part two): A loyal (and dare I say female) "How Appealing" reader based in Ohio emails to note that Washington State will not be alone in having a majority of female jurists on its highest court in 2003:
FYI, just wanted to point out that the Ohio Supreme Court will also be "dominated" by women at the start of the new term. Maureen O'Connor was elected to fill the seat of retiring Justice Andy Douglas--which, with the re-election of incumbent Evelyn Stratton (who was, coincidentally, running against a female opponent), puts the Court at a 4-3 female majority. (Three of the four women, also coincidentally, are Republicans though the ballots won't tell you that.)
You can access more information about the Supreme Court of Ohio here and can access a photo of the currently serving justices here. Also, you can access the election results referred to in the above email at this link. Finally, it merits mention that Ohio Supreme Court Justice Deborah L. Cook is among President Bush's six nominees to fill existing vacancies on the U.S. Court of Appeals for the Sixth Circuit.
Posted at 16:54 by Howard Bashman

One judge, one vote: Much has been written over the years about the principle of "one person, one vote." Today the U.S. Court of Appeals for the Fifth Circuit has released an opinion on its Web site that illustrates the principle of "one judge, one vote."

As regular readers of this Web log may be surprised to learn, on certain occasions it is actually necessary for me to read the contents of appellate opinions before mentioning them here. On such rare occasions, it can be distressing to open up a PDF file that turns out to be a 110-page opinion.

Today's Fifth Circuit opinion, however, isn't as painful as some 110-page opinions because it turns out to be a thirty-six page majority opinion, followed by a thirty-seven page dissent by Circuit Judge Rhesa Hawkins Barksdale, followed by another copy of the identical thirty-seven page dissent by Judge Barksdale. Now Judge Barksdale's dissent advances an impassioned argument for why the Fifth Circuit should grant rehearing en banc to allow that court to reconsider its caselaw governing so-called "Fourth Amendment malicious prosecution" claims. And perhaps reading the dissent a second time will convince any of his colleagues who weren't convinced on a first read. But seriously, while the Fifth Circuit can post an opinion containing two dissents by Judge Barksdale, the principle of "one judge, one vote" operates to leave his preferred outcome on the losing end of today's 2-1 three-judge panel ruling.

Update: I'm pleased to report that the Fifth Circuit's Web site has replaced the file posted there earlier today that contained two consecutive copies of Judge Barksdale's dissent with a corrected file that contains only one copy of the dissent. As a result, the total length of the document is now a mere seventy-three pages.
Posted at 16:08 by Howard Bashman

Women rule! The truth of this exclamation comes as no surprise to many readers of "How Appealing," but for the rest of you The Associated Press this afternoon offers a report that begins:
Women rule on the Washington state Supreme Court.

In a close race that ended Wednesday with the last absentee ballots counted, Assistant Attorney General Mary Fairhurst became the fifth woman on the Washington Supreme Court, making it the only high court in the nation to be dominated by women.
I think in this instance the phrase "be dominated by women" is intended to mean "have a majority of women." You can access the complete article here, and you can access the Supreme Court of Washington State's Web site at this link.
Posted at 15:41 by Howard Bashman

Seventh Circuit strikes down Chicago ordinance that prohibited the peddling of merchandise near the United Center: You can access today's unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit at this link. The plaintiff who won today's appeal, and thereby obtained the reversal of a trial court's ruling to the contrary, was seeking to sell a book that was highly critical of the owner of the Chicago Blackhawks. The Seventh Circuit concluded both that the ordinance was not a valid time, place, and manner restriction and that the ordinance constituted an unlawful prior restraint.
Posted at 13:56 by Howard Bashman

"Don't gut conspiracy laws when we need them most": Law Professor Neal Katyal makes the case in an essay posted today at Slate. Happily, he doesn't suggest that existing conspiracy laws be used to send the members of The Volokh Conspiracy to the big house.
Posted at 13:32 by Howard Bashman

Byron York on yesterday's Senate confirmation of Dennis W. Shedd: Byron York's essay posted this morning at National Review Online is entitled "The Democrats' Threat: A Bush nominee is confirmed -- but the vote is a message to the White House."
Posted at 13:26 by Howard Bashman

Drink enough wine and the U.S. Constitution becomes mighty difficult to parse: Several readers have sent emails to me this morning to note their surprise at learning, upon reading this article published in today's New York Times, that the Sixth Amendment to the U.S. Constitution contains a Commerce Clause.

According to the second paragraph of Frank J. Prial's Wine Talk column published today:
In United States District Court in Manhattan last week, a federal judge ruled that a New York State law that bars out-of-state wineries from shipping wine directly to New York consumers while allowing New York wineries to do so was unconstitutional. (Out-of-staters are required to sell their wine in New York only through wholesalers.) In his ruling, Judge Richard M. Berman went to the heart of a constitutional controversy that has been raging in the wine industry for more than 20 years: which should prevail, the 21st Amendment, which ended Prohibition and gave all alcohol regulation to the states, or the Sixth Amendment's commerce clause, which bans all barriers to interstate trade? (emphasis added)
Previously, I thought that the Commerce Clause was contained in Article I, Section 8 of the U.S. Constitution. But perhaps the dormant Commerce Clause has finally awoken and, in search of affection that Article I was not willing to provide, decided to cohabitate with the Sixth Amendment? (Thanks to reader Colin E. Wrabley for being the first -- but not the last -- to draw this error from today's NYTimes to my attention.)
Posted at 11:34 by Howard Bashman

The New York Post reports that the memoirs of Clarence Thomas are being shopped for a publisher: What would it be like if The New York Post were to break the news that Justice Clarence Thomas is looking for a publisher for his memoirs? You can find out here. Given how times have changed, it's unlikely that Justice Thomas's memoirs will give rise to litigation that eventually reaches the U.S. Supreme Court. (Thanks to the person who emailed news of this article.)
Posted at 10:50 by Howard Bashman

Giving new meaning to the phrase "a liberal arts education": News of this movie recently filmed at Indiana University's Bloomington campus probably will be somewhat less well received by that university's administration than was "Breaking Away," a film that reached theaters more than twenty years ago.
Posted at 09:56 by Howard Bashman

And now, it's on to Judge Dennis W. Shedd's post-confirmation interview with the press: Now that post-confirmation interviews appear to be de rigueur for federal appellate court nominees, it should come as no surprise that Dennis W. Shedd sat down to talk with a reporter from The State in an exclusive interview conducted after the U.S. Senate last night confirmed Judge Shedd, by a vote of 55-44, to serve on the U.S. Court of Appeals for the Fourth Circuit. (Thanks to SignedEpsteinsMother for the pointer.)
Posted at 09:23 by Howard Bashman

Some local coverage of Dennis W. Shedd's confirmation to serve on the Fourth Circuit, and a look ahead to next year: The State, a South Carolina-based newspaper, reports here that "Thurmond wins a final victory," while The Charlotte Observer reports on yesterday's vote here in an article entitled "Careers end with final day in Senate."

By the way, wasn't Senator Joseph R. Biden, Jr. (D-DE) considered as a "yes" vote for Judge Shedd? And why, then, did he vote "no" on Shedd's nomination during the final confirmation vote (see the complete roll call here)?

Now that the U.S. Senate has completed its consideration of federal judicial nominees for the calendar year 2002, it's time to gaze into the crystal ball for next year. D.C. Circuit nominees Miguel A. Estrada (who has already had his Senate Judiciary Committee hearing) and John G. Roberts, Jr. (who has not) have to rank toward the front of next year's list of priorities, as is filling more of the six remaining vacancies on the U.S. Court of Appeals for the Sixth Circuit, where highly qualified appellate wiz kid Jeffrey S. Sutton is among the nominees. The White House has yet to propose nominees for ten existing vacancies (and that's not even counting the two Fifth Circuit vacancies for which the Judiciary Committee voted down Charles W. Pickering, Sr. and Priscilla R. Owen). At least two more federal appellate vacancies loom on the horizon (including one right here in Philadelphia).

A key question for next year will be whether the Senate will continue its tradition of allowing any Senator to use a so-called "blue slip" to block forever consideration of judicial nominees appointed to serve in the Senator's home state. As this chart indicates, blue slips are holding up several Sixth Circuit nominees and one California-based Ninth Circuit nominee.
Posted at 08:44 by Howard Bashman

Ten Commandments monument to stay in Alabama's Judicial Building for now, that State's Chief Justice vows: The Montgomery Advertiser has this report on the aftermath of the Alabama federal district court's ruling Monday that requires the removal from Alabama's State Judicial Building of a large granite monument honoring the Ten Commandments.
Posted at 08:40 by Howard Bashman

In today's Los Angeles Times: Today's edition of The Los Angeles Times contains two items of note. Here you can access an article entitled "Senate OKs Long-Delayed Appeals Court Nomination," and here you can access an article entitled "Prayer Finds an Opening in L.A. School."
Posted at 08:27 by Howard Bashman

In Wednesday's edition of The Washington Post: The Washington Post reports here on the U.S. Senate's confirmation of Dennis W. Shedd to serve on the U.S. Court of Appeals for the Fourth Circuit. A front page article reports on new evidence indicating that Zacarias Moussaoui may have had a closer connection than previously known to the events of September 11, 2001. Two letters to the editor remind us that Al Gore likely would have lost the recount in Florida even if the U.S. Supreme Court had allowed the recounting to continue to the bitter end. And columnist Robert J. Samuelson has an op-ed entitled "Asbestos Fraud."
Posted at 00:57 by Howard Bashman

Third Circuit rejects assertion that federal law proscribing theft from health care providers exceeds Congress's power under the Commerce Clause: First Lady of Pennsylvania-elect and Circuit Judge Marjorie O. Rendell wrote the unanimous opinion for a three-judge panel of the U.S. Court of Appeals for the Third Circuit. The opinion asserts that the Third Circuit is "the first court to address the constitutionality of this statute as an exercise of Congress' power under the Commerce Clause."
Posted at 00:41 by Howard Bashman

Tuesday, November 19, 2002
What's the nicest write-up that "How Appealing" has ever received in the popular press? Tony Mauro, who covers the U.S. Supreme Court for, writes here about the possibility that Antonin Scalia might be the next Chief Justice of the United States.

The second half of Tony's article contains an exceptionally nice write-up of "How Appealing" and features some very kind remarks about this blog from Slate Senior Editor (and all-around excellent writer) Dahlia Lithwick and from Tom Goldstein, who when he's not briefing or arguing cases before the U.S. Supreme Court heads up SCOTUSblog. Let me just say that Tony's report is so very complimentary that I'm quite tempted to cut and paste the whole thing right here, but in an amazing feat of self-restraint I'm not doing that, so I simply ask that you click here instead and scroll down past the coverage of potential Chief Justice Scalia to see it for yourself.

Due to Tony's mention of "How Appealing," not only did I receive an email yesterday from Stuart Taylor Jr. (who wants to know my secret for apparently processing so much information), but today I received an email from Pete Williams, who covers the Supreme Court for NBC News and who before that served as Pentagon spokesman. Pete writes, "I just discovered your excellent blog and I'm now making it part of my morning ritual. It's one of those things that seems indispensable from the moment it's discovered, making me wonder how I got along without it."

Thanks so much to everyone who has ever sent along kind words of encouragement about the blog, and very special thanks to Tony Mauro for penning the nicest write-up that "How Appealing" has ever received in the popular press.
Posted at 21:18 by Howard Bashman

The U.S. Senate has confirmed Dennis W. Shedd to serve on the U.S. Court of Appeals for the Fourth Circuit: The vote, which occurred just a short time ago, was fifty-five in favor and forty-four against, with one Senator not voting. You can access a list showing how each Senator voted at this link. Seven Democrats -- Byrd (D-WV); Graham (D-FL); Hollings (D-SC); Inouye (D-HI); Lincoln (D-AR); Miller (D-GA); and Nelson (D-NE) -- joined with forty-eight Republicans in voting for Shedd. Two independents joined with forty-two Democrats in voting no. The one Senator not voting was from the Republican party.
Posted at 20:55 by Howard Bashman

Eleventh Circuit affirms dismissal of libel and slander suit against John and Patricia Ramsey filed by their former housekeeper: Today the U.S. Court of Appeals for the Eleventh Circuit affirmed the dismissal of libel and slander claims against John and Patricia Ramsey, the parents of JonBenet Ramsey, filed by their former housekeeper. As the court's opinion explains at its outset: "This diversity case arises from a book written by John and Patricia Ramsey about the police investigation into their daughter's murder. Linda Hoffmann-Pugh, the Ramseys' former housekeeper, brought suit against the Ramseys, alleging libel and slander under Georgia law in connection with the book and its promotion." You can access the Eleventh Circuit's opinion at this link, via FindLaw.

Update: reports here that the lawyer who was representing the former housekeeper on appeal might be in trouble with the Eleventh Circuit because he failed to appear at oral argument.
Posted at 20:48 by Howard Bashman

"Court Denies Lifetime Care" for military veterans: The Associated Press is reporting:
A divided, reluctant federal appeals court denied claims Tuesday by World War II and Korean War veterans who said the government reneged on a promise to provide free lifetime health care if they stayed in the service for 20 years.

Although the government conceded military recruiters made the promises, the Defense Department convinced the court there was no valid contract because the assurances were not backed up by law.
You can access today's 9-4 en banc ruling of the U.S. Court of Appeals for the Federal Circuit at this link (MSWord document). While The AP's report states that the case was decided today, the Federal Circuit's opinion is dated yesterday.
Posted at 17:24 by Howard Bashman

"Trouble on Con Air": Seventh Circuit Judge Terence T. Evans, on behalf of a stellar three-judge panel (the other two members of which were Circuit Judges Richard A. Posner and Frank H. Easterbrook), today issued an opinion that begins:
What we have here is trouble on Con Air.
And while the panel ultimately gives thumbs down both to the movie and to the prisoner's appeal at issue in this case, Judge Evans does get to display his knowledge of "Con Air" in footnote one of the opinion:
This plane and its passengers conjure up images of the awful 1997 Nicholas Cage-John Malkovich film, "Con Air," a movie, according to Roger Ebert, that "knows it is absurd, and does little to deny it." While we don't know about Xavier's fellow travelers, we hope they were not like some of the cons on Con Air, a motley collection which included Cyrus the Virus, Diamond Dog, Garland Greene (a serial killer played by Steve Buscemi, who arrived on board in a Hannibal Lecter-like traveling suit), and Johnny 23, so called because of his 23 rape convictions ("It woulda been Johnny 600 if they knew the whole story," he proudly proclaims).
You can access the Seventh Circuit's ruling at this link.
Posted at 15:20 by Howard Bashman

Original Survivor champion can't pursue state law invasion of privacy claims arising from his arrest in Rhode Island, First Circuit rules: Coincidentally, today's ruling by the U.S. Court of Appeals for the First Circuit involves Survivor, votes by a three-judge panel, and an island.
Posted at 14:29 by Howard Bashman

Is the electric chair cruel and unusual punishment? Nebraska legislators don't seem to think so: The Associated Press reports here that Nebraska's effort to revamp its death penalty laws to comply with the U.S. Supreme Court's ruling last term in Ring v. Arizona won't result in Nebraska's use of lethal injection as an alternative to the electric chair. As a result, Nebraska will remain the only State in which the electric chair is the exclusive method for imposing the death penalty. For additional local coverage of these issues, you can access here an article from today's edition of the Daily Nebraskan, and you can access here an article from today's edition of the Lincoln Journal Star.
Posted at 13:54 by Howard Bashman

Thomas Sowell suggests nominating California Supreme Court Justice Janice Rogers Brown to serve on the U.S. Supreme Court: Conservative commentator Thomas Sowell suggests, in an essay posted today at, that Associate Justice Janice Rogers Brown of the Supreme Court of California would be a perfect candidate to fill any upcoming U.S. Supreme Court vacancy.
Posted at 13:35 by Howard Bashman

Byron York reports there will be no filibuster to block Dennis W. Shedd's confirmation to the Fourth Circuit: You can access York's essay here, via National Review Online. In the absence of a filibuster, Dennis W. Shedd will be confirmed by the U.S. Senate to serve on the U.S. Court of Appeals for the Fourth Circuit.
Posted at 10:18 by Howard Bashman

Divided Sixth Circuit panel refuses to stay pending appeal order requiring Ohio schools to remove Ten Commandments monuments: This morning the U.S. Court of Appeals for the Sixth Circuit issued an order that, by a vote of 2-1, refuses to stay pending appeal a trial court's order requiring "the removal of the Ten Commandments monuments from the 'Foundations of American Law and Government' displays located on the property of four Adams County High Schools." Circuit Judge Karen Nelson Moore and Senior Circuit Judge Damon J. Keith joined in the per curiam order denying a stay. Senior Circuit Judge Cornelia G. Kennedy dissented from the order.
Posted at 10:02 by Howard Bashman

Alabama's Chief Justice to appeal Ten Commandments ruling: The Associated Press is reporting that Alabama's Chief Justice plans to appeal to the U.S. Court of Appeals for the Eleventh Circuit from yesterday's decision ordering him to remove a large granite monument to the Ten Commandments from that State's Judicial Building. The Montgomery (Alabama) Advertiser, which has provided excellent coverage of this dispute from the start, has this report in today's edition.

Alabama in between: James Carville once said of Pennsylvania, "You've got Pittsburgh on one end, Philadelphia on the other and Alabama in between." Ironically, yesterday's Ten Commandments ruling mentions several times that the Supreme Court of Pennsylvania's courtroom in Harrisburg prominently features the Ten Commandments on a large mural located on the wall behind where the justices sit. I had my most recent oral argument in that courtroom earlier this year, and the courtroom is truly a sight to behold because giant murals honoring religious and secular law givers cover all of the wall space in that very large courtroom. You can view these murals online here, here, here, and here.
Posted at 08:54 by Howard Bashman

In Tuesday's newspapers, part two: A front page article in today's edition of The Boston Globe reports: "A Harvard Law School committee announced plans yesterday to draft a speech code that would ban harassing, offensive language from the classroom, a highly unusual step for a law school and a move that runs counter to a national trend against interfering with campus speech." Lyle Denniston reports here on yesterday's U.S. Supreme Court grants of review, and he reports here on yesterday's ruling of the Foreign Intelligence Surveillance Court of Review.

Today's edition of The Los Angeles Times contains this report on yesterday's FISCR ruling, this article covering yesterday's most newsworthy developments at the U.S. Supreme Court, and this coverage of yesterday's ruling by the Ninth Circuit that affirmed the dismissal of a habeas corpus suit brought on behalf of persons captured in Afghanistan and held now at the U.S. Naval Station at Guantanamo Bay, Cuba.

Joan Biskupic of USA Today has an article reporting on yesterday's developments at the Supreme Court. And here's an article from USA Today on yesterday's FISCR wiretap ruling.
Posted at 08:40 by Howard Bashman

This morning's Dennis W. Shedd news round-up: Today could be the day on which the U.S. Senate confirms Dennis W. Shedd to serve on the U.S. Court of Appeals for the Fourth Circuit. Or perhaps not.

You can access here a transcript of a segment about the battle over Judge Shedd aired during last night's episode of the PBS program NewsHour with Jim Lehrer. Today's edition of The Salt Lake Tribune contains an article about the Shedd imbroglio entitled "Hatch Calls Democrats' Criticism of Appellate Nominee 'Shameful.'" And, The Associated Press within the past half hour has posted an article entitled "Senate Nears Vote on Judge Nominee."
Posted at 08:31 by Howard Bashman

In Tuesday's newspapers: I'm not alone in thinking that yesterday generated quite a few noteworthy court rulings. Both The New York Times and The Washington Post contain reports (see here and here, respectively) on yesterday's ruling in favor of the federal government by the United States Foreign Intelligence Surveillance Court of Review. Both of these newspapers also contain editorials about yesterday's ruling, although the Times' editorial is more critical of the ruling than the Post's. Relatedly, the NYTimes has a separate article reporting on yesterday's D.C. Circuit oral argument about whether the names of terrorism-related immigration detainees should be made public.

Both Linda Greenhouse and Charles Lane provide coverage of yesterday's important developments at the U.S. Supreme Court. Greenhouse has a single round-up article that leads with the State sovereign immunity-Title II of the Americans with Disabilities Act case. Lane, meanwhile, must be breathing a sigh of relief that the Court only granted review in three cases yesterday, because he has a separate article on each (see here, here, and here).

The Times and the Post have both deemed yesterday's federal district court ruling that orders Alabama's Chief Justice to remove a large stone monument honoring the Ten Commandments from Alabama's Judicial Building to be worthy of coverage. Jeffrey Gettleman of the NYTimes, reporting from Montgomery, Alabama, has a rather amusing and breezily-written report on the dispute and yesterday's ruling. You can access the Post's article about yesterday's ruling, filed by a reporter in Miami, at this link.

Finally, OpinionJournal features a piece that accuses the Harvard Law School of "trade[ing] intellectual rigor for flabby sensitivity." Say it ain't so, Sasha!
Posted at 00:11 by Howard Bashman

Monday, November 18, 2002
The U.S. Supreme Court is considering some amendments to its own rules: You can access the proposed rule revisions at this link. The proposals contain some good news for FedEx and similar private courier services.
Posted at 23:44 by Howard Bashman

Now available online at Tony Mauro reports here on the cases that the U.S. Supreme Court agreed to review today. Jason Hoppin reports here some very important news on an issue that's been of great interest to me: "A federal rules advisory committee has approved a proposal to allow the citation of unpublished decisions in all federal appellate courts." Jonathan Groner, in an article you can access here (free registration required), takes a look at the Senate Judiciary Committee in the year 2003.

Not yet available online at In today's edition of The Legal Times, Tony Mauro's Courtside column contemplates the possibility of Chief Justice Antonin Scalia. Thereafter, Tony's column takes a look at two appellate law blogs, one of which happens to be "How Appealing." When this article does become available online, you can be sure I will mention it, and link to it, here.
Posted at 23:11 by Howard Bashman

Too sexy for certain areas of Littleton, Colorado: Today the U.S. Court of Appeals for the Tenth Circuit resolved a constitutional challenge to an adult business zoning ordinance in Littleton, Colorado. As the appellate court explained at the outset of its opinion, "This case raises several First Amendment issues, including one in which the circuits are substantially divided: namely, the extent to which prompt judicial review must be assured in adult-business licensing cases." The trial court had ruled entirely in favor of the city. Today, in an opinion you can access here, the Tenth Circuit reversed in part, holding that the judicial review procedure and pre-application requirements of Littleton's ordinance are unconstitutional. (Title of this post patterned after lyrics by Right Said Fred.)
Posted at 22:52 by Howard Bashman

"Court OKs faxed warrants": c|net has this report on a ruling that the U.S. Court of Appeals for the Eighth Circuit issued today. The court held that police did not need to be present when executing a search warrant of a Yahoo! email account in a kiddie porn investigation and instead could fax the request to Yahoo! You can access the court's ruling at this link.
Posted at 22:47 by Howard Bashman

Does the grille on the Hummer H2 look too much like the grille on a Jeep? No, the U.S. Court of Appeals for the Seventh Circuit answered today, affirming and adopting a district court's decision to that effect which issued at the preliminary injunction stage. You can access the Seventh Circuit's ruling here.
Posted at 22:38 by Howard Bashman

Today's two CVSG's: As I noted below, today the U.S. Supreme Court called for the views of the Solicitor General of the United States in two cases. SCOTUSblog summarizes those two cases here -- but be forewarned that they are both complicated patent law disputes arising from the U.S. Court of Appeals for the Federal Circuit.
Posted at 16:50 by Howard Bashman

Stuart Taylor Jr. discusses likely replacements in the case of a U.S. Supreme Court vacancy: One of the nice benefits of having Stuart Taylor Jr. email to say how much he is enjoying "How Appealing" is that I can ask him whether his article from today's issue of the National Journal -- predicting likely U.S. Supreme Court nominees in the event of a vacancy -- is yet freely available online. And he can kindly respond, yes, here it is. By the way, Taylor's article inaccurately states that Third Circuit Judge Samuel A. Alito, Jr. clerked for Justice Antonin Scalia. What Taylor probably meant to say was that Fourth Circuit Judge J. Michael Luttig clerked for then-Circuit Judge Scalia on the U.S. Court of Appeals for the D.C. Circuit.
Posted at 15:56 by Howard Bashman

Second Circuit affirms trial court decision holding that Lincoln Center may refuse to allow political demonstrations in its outdoor New York City-owned fountain plaza: In so ruling, the Second Circuit found that the restrictions were viewpoint neutral and reasonable in relation to the plaza's purpose. You can access today's ruling at this link.
Posted at 15:30 by Howard Bashman

"U.S. Argues for Secret Detentions": The Associated Press has this report on an oral argument that occurred today before the U.S. Court of Appeals for the D.C. Circuit. The appeal presents the question whether the government may keep secret the names of post-September 11th terror-related detainees. You can access the trial court's ruling and the parties' appellate briefs via this link.
Posted at 14:08 by Howard Bashman

The Senate is scheduled to begin debate on the nomination of Dennis W. Shedd at 2 p.m. today, with a possible vote to occur tomorrow: The Associated Press has this report.
Posted at 13:56 by Howard Bashman

The AP reports on today's most newsworthy U.S. Supreme Court denials of review: "High Court Refuses Inmate Sperm Case," available here; "Court Stays Out of Playgirl Case," available here; and "Court Refuses Organ Harvesting Case," available here.
Posted at 13:53 by Howard Bashman

Ninth Circuit affirms dismissal of habeas corpus suit brought on behalf of Guantanamo Bay detainees: A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today affirmed a trial court's ruling that refused to consider on the merits a habeas corpus suit filed by a coalition of clergy, law professors, and lawyers on behalf of persons captured in Afghanistan and held now at the U.S. Naval Station at Guantanamo Bay, Cuba. The Ninth Circuit specifically held that the coalition lacked either next-friend or third-party standing to bring the suit. The Ninth Circuit did not deem it necessary to address the trial court's conclusion that no other federal court in the United States would have jurisdiction to consider these claims if brought by plaintiffs who possessed standing. Accordingly, the Ninth Circuit vacated the trial court's conclusion that no other federal court would have jurisdiction to issue a writ of habeas corpus in favor of the Guantanamo detainees. You can access the Ninth Circuit's ruling at this link.
Posted at 13:39 by Howard Bashman

United States Foreign Intelligence Surveillance Court of Review rules in favor of U.S. Department of Justice in wiretap appeal: The United States Foreign Intelligence Surveillance Court of Review today has issued its first ruling ever, and (as I had predicted based on how strong I found the government's brief to be) has reversed the ruling of the Foreign Intelligence Surveillance Court. The Court of Review doesn't have its own Web site, so it has borrowed the D.C. Circuit's Web site to issue its opinion, which you can access here.

Update: The Associated Press has this report on the ruling. The AP's article incorrectly describes the Court of Review as a "special panel from the U.S. Circuit Court of Appeals for the District of Columbia."
Posted at 11:56 by Howard Bashman

Alabama must remove the Ten Commandments monument from that State's Judicial Building, federal judge rules: The Associated Press is reporting:
A Ten Commandments monument in the rotunda of Alabama's judicial building violates the constitution's ban on government promotion of religion, a federal judge ruled Monday.

U.S. District Judge Myron Thompson gave Alabama Chief Justice Roy Moore, who had had the 5,300-pound granite monument installed in the state building, 30 days to remove it.
You can access the complete article here, and you can see a photograph of the monument here.

The federal court's opinion announcing this ruling (which, combined with the judgment, totals seventy-eight pages) is available online here.
Posted at 10:48 by Howard Bashman

Peter Kirsanow gets to remain on the U.S. Civil Rights Commission: Gina Holland reports here that today the U.S. Supreme Court refused to review the D.C. Circuit's ruling that allowed Kirsanow to take the seat held by Victoria Wilson, whom President Clinton appointed in 2000.
Posted at 10:48 by Howard Bashman

C-SPAN to televise today's memorial service for U.S. Supreme Court Justice Byron R. White: C-SPAN plans to telecast today's memorial service in honor of U.S. Supreme Court Justice Byron R. White. Coverage is expected to begin at 1:45 p.m. eastern time, and you can access it online via this link.
Posted at 10:38 by Howard Bashman

The third and final case in which U.S. Supreme Court review was granted today asks whether Title II of the ADA is enforceable against the States: This is an issue on which "How Appealing" has predicting a grant of U.S. Supreme Court review for quite some time. You can access the Ninth Circuit's panel opinion, holding that sovereign immunity does not prevent the enforcement of Title II of the ADA against non-consenting States, at this link. You can access an opinion dissenting from the Ninth Circuit's denial of rehearing en banc in that case at this link.
Posted at 10:29 by Howard Bashman

This morning's U.S. Supreme Court order list is now available online: You can access it here. The Court granted review in three cases and called for the views of the Solicitor General in two others.
Posted at 10:21 by Howard Bashman

Hmm, wonder what Judge Silberman would say about this: Gina Holland of The Associated Press is reporting that the U.S. Supreme Court "broadened its review of the death penalty Monday, agreeing to consider when death row inmates with bad lawyers deserve a second chance."
Posted at 10:20 by Howard Bashman

"Court to Hear Campaign Finance Case": The Associated Press has this report on the U.S. Supreme Court's grant of review in a case this morning.
Posted at 10:11 by Howard Bashman

Sixth Circuit affirms judgment of more than $100,000 against state prison officials in case of prisoner exposed to second-hand tobacco smoke: You can access today's ruling of the U.S. Court of Appeals for the Sixth Circuit at this link.
Posted at 09:49 by Howard Bashman

In the brand new issue of The New Yorker: The issue of The New Yorker arriving on newsstands today contains two items of interest: this article reports on how Kenneth Feinberg, who holds the title of special master of the September 11th Victim Compensation Fund, plans to value nearly three thousand lives; and in this article, Jeffrey Toobin predicts what would have happened to Winona Ryder had she been arrested for shoplifting in New York City.
Posted at 09:30 by Howard Bashman

Return to Pakistan of body of man who received death penalty for killing two CIA workers fails to inspire good feelings toward the United States: The Associated Press offers this report.
Posted at 09:25 by Howard Bashman

Today is Dennis W. Shedd day in the U.S. Senate: The Associated Press reports this morning:
Democrats plan to take one last shot at blocking one of President Bush's judicial nominees while they still control the Senate, hoping to defeat the promotion of a former aide to retiring Sen. Strom Thurmond.

The Senate set aside most of Monday to debate the appeals court nomination of U.S. District Judge Dennis Shedd.
You can access the complete article at this link.
Posted at 08:51 by Howard Bashman

SatireWire mocks National Lampoon's parody of Mad Magazine's take on The Onion: In fact, it hasn't yet reached the nth degree, but the current issue of Mad Magazine does include this piece ridiculing The Onion. (Via Max Power.)

By the way, it's impossible to mention SatireWire without regretting its untimely demise. Some SatireWire classics: "Judge Denies Bias Against 'Guilty Microsoft Bastards'"; "Egan's Law passed"; and "Angered by Snubbing, Libya, China, Syria Form Axis of Just as Evil."
Posted at 08:33 by Howard Bashman

Fables of the deconstruction: Former writer Greg Beato, now of soundbitten fame, attempts to deconstruct InstaPundit's amazing readership statistics in a post you can access here. (The title of this post is based on the name of one of the best albums I've ever had the pleasure of owning.)
Posted at 01:10 by Howard Bashman

In Monday's newspapers: OpinionJournal presents an essay entitled "On the Left: Hysteria and Name-Calling; Democrats must be getting pretty desperate." Its author notes that "The Bush judicial nominees are safely in the mainstream, unlike the San Francisco judges of the Ninth Circuit, who the other day received three summary reversals by a unanimous Supreme Court."

In The New York Times, Adam Liptak reports on the increasing use of anonymous juries in criminal cases. As I first noted here back on August 20, 2002, the U.S. Court of Appeals for the Eleventh Circuit on that date issued an opinion questioning whether it would be more accurate to call such juries innominate. As that court explained in a footnote, "We will refer to the jury as 'innominate' rather than 'anonymous' because, after a thorough voir dire, the parties knew everything about the jurors except their names."

Finally, The Washington Post reports here that "The government is nearly ready to go forward with military tribunals for suspected al Qaeda operatives in U.S. custody in Guantanamo Bay and Afghanistan, pending completion of final details and approval from President Bush, according to federal officials."
Posted at 00:49 by Howard Bashman

Sunday, November 17, 2002
An incredibly detailed look at the Victoria's Secret trademark dilution dispute, including the story of Walter "Coca-Cola" Dellinger: The St. Petersburg (Florida) Times, of all places, offers in today's edition of that newspaper an incredibly detailed look at the Victoria's Secret - Victor's Secret trademark dilution dispute, from start to finish. Here's a sample:
[Walter] Dellinger stepped to the lectern and unfolded his notes. He had glued them to the back of manilla folders so they resembled a restaurant menu. His main points were in the center of the folder, like the entrees. At the top was a bold reminder to say, "MAY IT PLEASE THE COURT."

He had expected Higgins to say Moseley was entitled to keep his own name on the store, so Dellinger was ready with a snappy reply. He was going to say that if that were the case, he was changing his name to Coca-Cola Dellinger.
You can access the entire article here, and it is not to be missed.
Posted at 23:31 by Howard Bashman

In tomorrow's issue of U.S. News and World Report: Tomorrow's issue of U.S. News and World Report contains two items of interest. This article -- entitled "Putting a hot potato on ice; Should a terror suspect face the courts or a tribunal?" -- asks whether Zacarias Moussaoui will receive a criminal trial in federal court or will end up facing a military tribunal. On a much lighter note, the magazine has this report on the Cartoon Network's fine show "Harvey Birdman, Attorney at Law."
Posted at 14:51 by Howard Bashman

In Sunday's newspapers: The New York Times reports here on The Federalist Society at age twenty. Now that Republicans are on the verge of controlling both elected branches of the federal government, could tort reform be far behind? NYTimes reporter Adam Liptak today has two related articles: "Shot in the Arm for Tort Overhaul," which you can access here; and "Playing the Angles in Class-Action Lawsuits," available here.

The battle over "who struck John" when it comes to the issue of obstructing federal judicial nominations continues to brew in the letters to the editor section of The Los Angeles Times. Here is today's entry. On an even more macabre note, the LATimes today also reports on last week's opening of the Texas Prison Museum, in an article entitled "A New Museum Shows Death Penalty as a Way of Life."
Posted at 14:35 by Howard Bashman

Round-up of today's judicial confirmation-related news: A columnist for The Providence Journal gives the Democrats an earful concerning the manner in which they operated the Senate Judiciary Committee. The columnist concludes that "Senate confirmation is seldom swift and easy, but for judges it shouldn't be partisan torture." (Now if only this columnist knew the correct spelling of Senator Hatch's first name and the difference between circuit and district.) The Spectrum, a newspaper covering southern Utah, recently published an editorial entitled "Reform process for nominating new judges." Finally, Delaware's leading newspaper, The News Journal, ran an article in this past Friday's edition that noted criticism of the absence of Senator Joseph R. Biden, Jr. (D-DE) from this past Thursday's business meeting of the Senate Judiciary Committee.
Posted at 09:59 by Howard Bashman

Pennsylvania's legislature begins considering laws to prevent the execution of the mentally retarded: Today's edition of The Harrisburg Patriot-News offers this report.
Posted at 09:54 by Howard Bashman

What might the Chief Justice of Alabama's Supreme Court do with his newfound free time? As law blogger Sam Heldman helpfully reminds us, a ruling is expected on Monday, November 18, 2002 in the federal lawsuit challenging the decision of Alabama's Chief Justice to place a large monument honoring the Ten Commandments in Alabama's State Judicial Building. You can access a round-up of The Montgomery Advertiser's fine coverage of this dispute at this link.
Posted at 09:43 by Howard Bashman

Chief Justice of Alabama's Supreme Court recuses himself from recount dispute in that State's Governor's race: The Montgomery Advertiser offers this report.
Posted at 09:39 by Howard Bashman

In post-confirmation interview, "McConnell Vows to Reflect 'Utah Perspective' as Judge": On Friday, the U.S. Senate confirmed Michael W. McConnell to serve as a judge on the U.S. Court of Appeals for the Tenth Circuit. Yesterday, McConnell sat down with a reporter from The Salt Lake Tribune for an interview. You can access his very interesting remarks at this link to an article appearing in today's edition of that newspaper.
Posted at 09:36 by Howard Bashman

Saturday, November 16, 2002
A very tough crowd: One day after The Washington Post reports on former Vice President Al Gore's continuing disdain for the U.S. Supreme Court (see my post from yesterday, here), The Associated Press is reporting that Senior D.C. Circuit Judge Laurence H. Silberman blasted the Supreme Court today in a speech he delivered to the Federalist Society's annual convention in Washington. The article, by reporter Gina Holland, begins:
An appeals court judge accused the country's highest court on Saturday of ignoring the Constitution, dodging tough cases and awaiting an opportunity to strike down the death penalty.
The article also quotes Judge Silberman as stating that "I think elite public opinion is the primary guide to the Supreme Court." That echoes an observation I made in my recent essay published at Slate.
Posted at 22:48 by Howard Bashman

Female ex-placekicker at Duke can keep $1 in compensatory damages, but not $2 million in punitives, Fourth Circuit rules: Don't quite understand why the Fourth Circuit yesterday issued this as a non-precedential unpublished opinion, because the ruling seems to hold as a matter of first impression that punitive damages aren't available under Title IX. In any event, this represents a big victory for Duke University. Thanks to reader Patrick Bryant for emailing to me news of this decision.
Posted at 10:48 by Howard Bashman

"Are you my Caucasian?" Loyal viewers of the HBO series "Curb Your Enthusiasm" simply can't do what the title of the series demands when it comes to their feelings for the show. It's far too funny, and in a highly intelligent way. Take for example the recent episode entitled "Krazee-Eyez Killa." It guarantees a place in our lexicon for the quickly-spreading phrase (see here and here) "Are you my Caucasian?" As LA Weekly observes this week, Curb is "the funniest show on television." So true.
Posted at 10:22 by Howard Bashman

Some federal judicial nomination-related news: In tomorrow's edition of The New York Times Magazine, William Safire in his "On Language" column writes about Senator Orrin G. Hatch's use of some Spanish words in connection with the Senate Judiciary Committee's consideration of D.C. Circuit nominee Miguel A. Estrada. And the Web site Women's Enews has an article entitled "Senate to Okay Anti-Women's Rights Judges."
Posted at 10:19 by Howard Bashman

Newton's third law of motion, Pledge of Allegiance version: For anyone who doubts the soundness of Newton's third law of motion, The Associated Press has an article today entitled "More States Requiring School Pledge."
Posted at 10:13 by Howard Bashman

In today's newspapers: Charles Lane of The Washington Post reports here in today's edition that "Gleeful Federalist Society Amazed to Find Itself on The Inside Looking Out." Today's edition of The Los Angeles Times includes more letters to the editor on the topic of "Court-Nominee Filibusters." Lastly, the Courier-Journal of Louisville, Kentucky reports that "UK professor confirmed to [federal] appeals court."
Posted at 10:00 by Howard Bashman

Friday, November 15, 2002
Attention Second Amendment fans: The U.S. Court of Appeals for the Tenth Circuit today issued an opinion in which the court rejected a criminal defendant's argument that his conviction for possessing a firearm while subject to a domestic violence protective order violated the Second Amendment. The Court explained:
In order to establish a violation of the right to bear arms under Second Amendment, one must establish the following elements: (1) that he is part of a state militia; (2) the militia, and his participation therein, is "well regulated" by the state; (3) the guns in question are used by that militia; and (4) his possession of the guns was reasonably connected to his militia service. See United States v. Haney, 264 F.3d 1161, 1165 (10th Cir. 2001). Because Mr. Bayles has failed to offer evidence or argument in support of any of these elements, his Second Amendment challenge lacks merit.
The Tenth Circuit's rationale draws to mind this cartoon published in The New Yorker a little over three years ago.
Posted at 23:27 by Howard Bashman

"Owen expected to be renominated; Bush to resubmit Texas justice to new GOP Senate": Today's edition of The Houston Chronicle contains this report.
Posted at 23:22 by Howard Bashman

Al Gore assails U.S. Supreme Court: See this article from today's edition of The Washington Post.

Update: You can now access here the lengthy article on this subject that will appear in The Washington Post's Sunday Magazine. The article is entitled "Mr. Resident. A gavel stroke away from being the world's most powerful human, he becomes someone's suburban neighbor instead. What is that like? Al Gore wasn't telling...until now."
Posted at 23:20 by Howard Bashman

Tenth Circuit denies rehearing en banc in Mormon Plaza free speech appeal: Today's edition of The Salt Lake Tribune provides this report. You can access the Tenth Circuit's original, and now seemingly final, ruling in the case here.
Posted at 22:33 by Howard Bashman

The Senate tonight confirmed Michael W. McConnell to serve on the U.S. Court of Appeals for the Tenth Circuit: The Associated Press reports here that the approval was by voice vote. As one of his earliest supporters (see the very bottom of this appellate column of mine published in The Legal Intelligencer in June 2001), I view this as especially happy news.
Posted at 22:28 by Howard Bashman

Judge Easterbrook grants stay of mandate of Seventh Circuit's decision allowing Indiana's abortion counseling statute to take effect: On September 16, 2002, a divided three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued a ruling intended to allow Indiana's abortion informed consent statute to take effect. Circuit Judge Frank H. Easterbrook wrote the majority opinion, which concluded with the observation that "Indiana * * * is entitled to put its law into effect and have that law judged by its own consequences."

Well, not so fast. After the full Seventh Circuit split evenly, 5-5, over whether to grant rehearing en banc (see my report on this order, including how each judge voted, here), the losing parties asked the Seventh Circuit to stay its mandate pending a petition for writ of certiorari to be filed in the U.S. Supreme Court. And yesterday Judge Easterbrook granted such a stay, which will expire on December 16, 2002 unless a cert. petition is filed by that date.

As I noted in my original post about the panel's ruling, which appeared on this blog on the evening of September 16, 2002:
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.
We shall soon learn the answer to this question.
Posted at 22:13 by Howard Bashman

"Federalist Society Marks Anniversary": Gina Holland of The Associated Press has this report on the twentieth birthday celebration of The Federalist Society, which is now underway in Washington, DC. As a member of that group, I had given some thought to attending the gala celebration (heck, Eugene Volokh is there), but between today's work-related trip to Chicago and the fact that my wife and I have a wedding to attend tomorrow, sadly I was unable to go. And the same also holds true for the Beach Blogger Weekend in Rehoboth Beach, Delaware organized by Fritz Schranck. The forecast for this weekend, at least here in Philadelphia, isn't looking much like beach weather -- it will be windy and cold, as best the meteorologists can predict.
Posted at 21:27 by Howard Bashman

Despite winning Senate Judiciary Committee approval, Dennis W. Shedd's prospects of Senate confirmation to the Fourth Circuit remain uncertain: Today started on a hopeful note for supporters of U.S. District Judge Dennis W. Shedd's nomination to serve on the U.S. Court of Appeals for the Fourth Circuit.

While yesterday's Senate Judiciary Committee voice vote approving Shedd's nomination was unusual in that the recorded vote of the Senators present would have been 9-9 -- resulting in the rejection of the nomination -- committee chairman Patrick J. Leahy (D-VT), in what was viewed as a show of good faith to the Republicans and President Bush, called the voice vote a win for Shedd. This article from today's edition of The New York Times contains all the details. You can access additional coverage of yesterdays vote: here from The Washington Post; here from The Los Angeles Times; here from Byron York of National Review Online; and here from The State, a South Carolina-based newspaper.

Later today, however, the matter of Shedd's Senate confirmation appears to have taken a remarkable turn. As Byron York reports in this piece (his second today) posted this afternoon at National Review Online:
[T]he liberal interest groups People for the American Way, Leadership Conference on Civil Rights, Alliance for Justice, and NARAL all urged Democratic senators to continue the fight against Shedd in the full Senate. Wade Henderson, head of the Leadership Conference on Civil Rights, warned that "controversy will follow these nominations to the Senate floor."

Now, it appears that that is happening. There is word that several Democrats, including Kennedy, Leahy, and Michigan Sen. Carl Levin, are working to organize a filibuster that would prevent a full-Senate vote on the nomination. Such a move would be highly controversial, even among Democrats, because it could tie the Senate up in procedural knots at a time when lawmakers are racing to finish work on the Department of Homeland Security and other measures during the lame-duck session.
The conservative publication Human Events Online contains a similar report here. According to both York and Human Events Online, Louisiana politics may play a large role in the Democrats' decision on whether to filibuster to prevent Shedd's confirmation vote on the Senate floor, and York and Human Events Online offer different takes on whether a filibuster would help or hurt the re-election chances of Senator Mary Landrieu (D-LA).

So, the battle over Dennis W. Shedd's confirmation to the Fourth Circuit just keeps taking one surprising turn after another. Stay tuned for further developments.
Posted at 20:57 by Howard Bashman

Congratulations to newly-confirmed Sixth Circuit Judge John M. Rogers: The U.S. Senate yesterday confirmed by a voice vote Law Professor John M. Rogers to serve on the U.S. Court of Appeals for the Sixth Circuit. As a result, the Sixth Circuit, which is authorized to have sixteen active judges, now has only six vacancies.
Posted at 19:53 by Howard Bashman

"How Appealing" reader Miguel A. Estrada helps clarify my Hobbs Act post from last night: A reader by the name of Miguel A. Estrada, who currently practices law at the Washington, DC office of Gibson, Dunn & Crutcher LLP and who has been nominated by President Bush to serve as a judge on the U.S. Court of Appeals for the D.C. Circuit, emailed this afternoon to point out a detail that only a careful and especially insightful reader of the material linked in my Eleventh Circuit Hobbs Act post from last night would recognize.

Judge-to-be Estrada's email was entitled "Same mistake, different statute" and it stated, in full:
CA11 was talking about the law that governs judicial review of certain agency determinations, sometimes called the Hobbs Act, 28 U.S.C. section 2341 et seq. See generally ICC v. Locomotive Engineers, 482 U.S. 270, 277-86 (1987). The Post was talking about the federal extortion statute, also called the Hobbs Act, 18 U.S.C. section 1951.
I struggled with whether to explain this matter when drafting my post on the subject last night, but I concluded that it would require far too much explanation. Apparently I was wrong, and I thank Miguel Estrada for sending along this pithy and cogent clarification.
Posted at 19:42 by Howard Bashman

I'm back home from my day trip to Chicago: Thanks to everyone who emailed while I was away. My trip was excellent. The flights each way arrived early, and United put me in the "economy plus" section of the plane, the "plus" signifying five extra inches of legroom (which, while I may in fact be trying to mock it, actually is nothing to scoff at). Best of all, the work I had traveled to do achieved the result my client had hoped for and took less time to accomplish than my client and I had anticipated.
Posted at 19:22 by Howard Bashman

Thursday, November 14, 2002
Divided en banc Fifth Circuit decides important question of environmental law: The en banc U.S. Court of Appeals for the Fifth Circuit today ruled 10-3 that a statute providing that "Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title" does not require that an action seeking such contribution be brought "during or following" the civil action described in the second half of the quotation. While the majority's holding may make the most sense as a matter of policy, the dissenting judges seem to have by far the better textual argument. If you enjoy a good argument over how to go about understanding statutory language that may or may not be unclear, be sure to check out today's ruling, which pits Circuit Judge Edith H. Jones (who wrote today's majority opinion) against Circuit Judge Emilio M. Garza (who wrote the en banc dissenting opinion and the previously-vacated panel majority opinion).

The PDF file that contains today's ruling has some very odd font changes occuring throughout. If the Fifth Circuit happens to reissue the opinion minus these unusual font changes, I will disclaim any responsibility for having performed this public service.
Posted at 22:57 by Howard Bashman

Calvin and, um, the Federal Pole Attachment Act: Following in the recent footsteps (as I first reported here in a quite witty blog entry, if I may say so myself) of The Washington Post, today the U.S. Court of Appeals for the Eleventh Circuit couldn't quite get its act together concerning whether a certain federal law is known as the "Hobbs Act" or the "Hobbes Act." The decision itself involved pole attachments -- insert your own humorous aside here -- and you can grab it at this link. (While this current post may never qualify as especially witty, it certainly qualifies as nasty, brutish, and short.)
Posted at 22:45 by Howard Bashman

Second Circuit rules in favor of pro se inmate who argued that his use of pool cue to assault another inmate didn't constitute possession of a weapon: I guess this proves that certain arguments actually do sound more plausible when not advanced by a lawyer. You can access the Second Circuit's opinion, issued today, at this link.
Posted at 22:37 by Howard Bashman

Circuit Judge Parker writes opinion reversing for insufficient evidence federal murder conviction of defendant Parker: You can access today's decision of the Second Circuit at this link. The Circuit Judge Parker in question was Barrington D. Parker, Jr. The Second Circuit's other Judge Parker, Fred I. Parker, was not on the three-judge panel that decided this case.
Posted at 22:29 by Howard Bashman

Three examples that prove Seventh Circuit Judge Terence T. Evans is a really nice guy: Longtime readers of this blog and of my monthly appellate column published in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, know that I consider Seventh Circuit Judge Terence T. Evans to be among the best writers and thinkers now serving on the federal appellate courts.

Today Judge Evans provided another example of why I also consider him to be a really nice guy. In footnote one of this opinion that Judge Evans issued today, he pays tribute to a recently deceased federal district judge who served for almost thirty-seven years on the U.S. District Court for the Eastern District of Wisconsin after having served as Governor and Attorney General of Wisconsin.

A second reason can be found in footnote one of this opinion from 2000, in which Judge Evans writing on behalf of a three-judge Seventh Circuit panel reverses in part a trial court ruling made by none other than then-Seventh Circuit Chief Judge Richard A. Posner. But, in the footnote in question, Judge Evans writes:
It is a testament to the dedication of Chief Judge Posner that he volunteered to sit in the district court and hear this case which, at the time, needed the guiding hand of a new judge. Judge Posner, of course, carries a full load of cases on this court. He also discharges a multitude of administrative duties as the circuit's chief judge. But that's only part of what he does. He has written more books than many people read in a lifetime. On top of all this, in his spare time he is working as a court-appointed special mediator in the government's blockbuster antitrust suit against Microsoft. Obviously, Judge Posner has more on his plate than a long-haul trucker working an "all you can eat" buffet line. It is a tribute to Judge Posner's talent that he handles his many roles with such vigor, brilliance, and panache.
The third reason is somewhat more personal. My appellate column from February 2002 was entitled "A Concise Guide To Writing Better Appellate Briefs," and in it I wrote:
Another way to become a better appellate writer is to read decisions written by appellate judges who are excellent writers and thinkers. I try to read all U.S. Supreme Court decisions as they issue and all decisions published by Seventh Circuit Judges Richard A. Posner, Frank H. Easterbrook and Terence T. Evans.
A lawyer working in Philadelphia is friends with Judge Evans, and that lawyer faxed to the judge a copy of that column soon after it was published in The Legal Intelligencer. Shortly thereafter, Judge Evans picked up the phone and called me to thank me for comparing him favorably to Judges Posner and Easterbrook. He said that the next time he had a sitting with them, he was going to bring my column along to show them that a neutral observer has declared him as smart, and as good of a writer, as they are. He also kindly invited me to visit his chambers the next time work takes me to Milwaukee, which hasn't yet happened. But I am definitely looking forward to that meeting.
Posted at 22:14 by Howard Bashman

Email from England: A loyal "How Appealing" reader who is now working in England after having completed an especially prestigious judicial clerkship here in the United States has emailed in response to this post from last night:
Thanks for the cite to the Queen's speech on proposals for criminal justice reform in the UK. (Of course the proposals are Tony Blair's not the Queen's. Although the Queen "reads" a speech to open Parliament, the speech is prepared by the PM and reflects the agenda of the party in power.) The proposed reforms should be read by anyone engaged in the civil liberties debate here at home. Just imagine if John Ashcroft in one fell swoop (1) proposed to abolish double jeopardy where "new evidence comes to light," (2) proposed to abolish jury trials in prosecutions of "serious fraud," (3) proposed to abolish jury trials in any case "where there is a risk of jurors being intimidated," i.e., in any case where the defendant belongs to a criminal gang, (4) proposed to liberalize the use of hearsay evidence in criminal trials, and (5) proposed to permit the use of prior convictions at the guilt stage of criminal trials. Well Tony Blair has proposed all of this and more! Here is a link to his White Paper. Yet another example of the Chutzpah friends across the pond display when railing about the American criminal justice system.
Thank you for sending along these very thoughtful remarks!
Posted at 21:39 by Howard Bashman

Is that a concealed weapon in your pants? The Milwaukee Journal Sentinel is today reporting:
Wisconsin's 130-year-old prohibition on carrying concealed weapons runs afoul of a 1998 constitutional amendment establishing a right to keep and bear arms, lawyers told the state Supreme Court Tuesday.

Justices on the state's highest court heard arguments in a pair of Milwaukee cases challenging the concealed carry law as infringing on the amendment's guarantee of citizens' "right to keep and bear arms for security, defense, hunting, recreation and any other lawful purpose."

The court heard arguments in two cases, one in which Capitol Drive grocery store owner Munir Hamdan was convicted for carrying a concealed handgun in his store. In the other case, Phillip Cole was convicted for carrying concealed handguns in a car in which he was a passenger.
According to the Supreme Court of Wisconsin's Web site, that court today (rather than on Tuesday) heard oral argument in two cases presenting this question. That Web site provides the following summary of the first case:
01-0350-CR State v. Phillip Cole

This is a certification from the Wisconsin Court of Appeals, District I (headquartered in Milwaukee). This means that the Court of Appeals, rather than issuing its own ruling, asked the Wisconsin Supreme Court to take the case directly. The Court of Appeals certifies cases that cannot be decided by applying current Wisconsin law. The Supreme Court is the state's law-developing court while the Court of Appeals is responsible for correcting errors that occur in the trial court. This case originated in Milwaukee County Circuit Court, Judge Charles F. Kahn presiding.

In this case, the Supreme Court will decide whether a Wisconsin law that prohibits carrying a concealed weapon violates the Wisconsin Constitution. Here is the text of the constitutional amendment and the statute:

Wisconsin Constitution, Art. I, sec. 25 [created in November 1998]:

Right to keep and bear arms. The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.

Wisconsin Statutes, sec. 941.23:

Carrying concealed weapon. Any person except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a Class A misdemeanor.

Here is the background: Police making a routine traffic stop found two handguns and marijuana in Phillip Cole's car. In the trial court, Cole argued that he needed the guns for protection and that Wis. Stat. sec. 941.23 is unconstitutional. The trial judge disagreed and Cole was convicted of carrying a concealed weapon and possessing THC, both misdemeanor offenses. He appealed the weapons conviction and the Court of Appeals, as noted above, asked the Supreme Court to take the case directly.

In this appeal, Cole argues that when the Constitution and a law come into conflict, the Constitution wins. The State does not disagree, but argues that this constitutional amendment does not create an absolute right to bear arms. The State maintains that the use of the phrase "lawful purpose" in the amendment signals that police will have the power to weigh the lawfulness of each situation.

This is not the first time the Supreme Court has interpreted the so-called concealed carry law. In its last term, it ruled in two similar cases. In January, the Court decided a case involving a Milwaukee man whom police found sitting in a car with a gun tucked into the waistband of his pants. The man, who had been a victim of crime in the past, was in a high-crime area at night and claimed that he needed the gun for self-defense. The trial court found that the self-defense claim did not permit the man to carry a concealed weapon and the Supreme Court - over a dissent from Justice William A. Bablitch - agreed, but indicated that its decision was based on the specific facts of that case and should not be interpreted as addressing when, if ever, self-defense might be a lawful reason to carry a concealed weapon.

In June, the Court unanimously ruled that a Kenosha man who was arrested for causing a disturbance in his apartment building and, during a pat-down search, found to be carrying a concealed weapon could not claim that the concealed carry law was unconstitutional. The Court ruled this way because the constitutional amendment had not been in effect when Nollie was arrested for violating the statute. Again, the justices noted that their ruling should not be interpreted as answering the question of whether the law is constitutional. That question is one that the Court may now answer in this current case.
The facts of the second case presenting this same question, as set forth on the court's Web site, seem a bit more favorable to the individual asserting his right to a concealed weapon:
Here is the background: Munir Hamdan has owned and operated Capitol Foods grocery store in Milwaukee since 1987. He maintains that it is in a dangerous area and his petition to the Court quotes census records as indicating that between 1997 and 1999, the neighborhood around the market experienced six homicides, 94 aggravated batteries, and 16 rapes. Between 1993 and 1999, Hamdan's store was a target of three armed robberies and two shootings (a 1998 homicide and a 1997 incident where a gunman shot at Hamdan and his child, and Hamdan returned fire).

Hamdan has kept a handgun under the front counter of the store next to the cash register. On Nov. 26, 1999, plainclothes police officers came into the store at closing time to check Hamdan's licenses. Hamdan had been in the back of the store wrapping the gun in plastic for overnight storage and he stuck the gun in his pocket as he walked back to the public area of the store to talk with the officers. They checked his licenses and then asked if he kept a gun in the store. He withdrew the gun from his pocket and handed it to the officers, who confiscated it.

Hamdan was charged with carrying a concealed weapon and was found guilty. As noted, the Supreme Court took this case directly from the trial court.
Thanks to a reader for emailing along word of these cases and the Journal Sentinel article.
Posted at 21:12 by Howard Bashman

Two U.S. Supreme Court Justices vote in favor of stay of execution for Pakistani man who killed two CIA employees: Because it takes five votes to grant a stay, the stay was denied. You can access the order here. The execution accordingly occurred as scheduled at 9 p.m. eastern time tonight.
Posted at 21:10 by Howard Bashman

Things I'm hearing: Yes, those horrible voices inside my head have returned. One indicates that the Senate could adjourn from its current session as early as tonight, but if that were to occur all pending federal judicial nominees who have received favorable votes from the Senate Judiciary Committee would be confirmed first. In other news, it sounds as though the ABA Journal is working on another article about lawyer Web logs. Finally, while I may have had a fool for a client, my efforts at representing myself this afternoon at Philadelphia's Parking Violations Bureau proved fruitful, as the hearing officer dismissed the parking ticket that was issued to someone else whose license plate has some of the same letters and numbers as mine. This marks the second time in ten years that I have had to overturn parking tickets that were issued to a vehicle other than mine but were written up so carelessly that they could have been read as indicating my license plate. See, it's not every appellate lawyer who needs to keep a safe distance from the nisi prius court. Of course, had I lost today, an appeal was available.

Update: It now appears certain that the Senate will be back at work tomorrow (Friday).
Posted at 16:41 by Howard Bashman

"Committee Approves Bush Nominees": The Associated Press offers this report on today's big news out of the Senate Judiciary Committee.
Posted at 13:54 by Howard Bashman

Michael W. McConnell is approved by the Senate Judiciary Committee on a voice vote, with actual Democratic support: Senators Leahy, Feinstein, and Edwards voted yes (as best I could hear), and the record remains open for others to vote yes too.
Posted at 11:13 by Howard Bashman

Senate Judiciary Committee approves Dennis W. Shedd's nomination on a voice vote: The odd thing is, if a recorded vote had been taken, the nomination very well may have been rejected. And now the Committee has moved on to consider the nomination of Michael W. McConnell. McConnell will be approved even on a recorded vote, as Chairman Patrick J. Leahy (D-VT) has just announced that he is voting in favor of McConnell.

Update: My comment above, that "if a recorded vote had been taken, the nomination very well may have been rejected," was based on the fact that no Democratic Senator said during today's session that he or she would vote in favor of Shedd. The contributor known as SignedEpsteinsMother from the Greedy Clerks board reminds me via email that Senator Joseph R. Biden (D-DE), who sits on the Judiciary Committee, had previously expressed his intention to vote in favor of Shedd's nomination. (P.S. If the name "SignedEpsteinsMother" is too obscure for you, click here or here to learn more.)
Posted at 11:09 by Howard Bashman

Sen. Edwards (D-NC) announces he is voting against elevation of Judge Dennis W. Shedd to Fourth Circuit: Senator John Edwards (D-NC) has just announced that he will be voting against the elevation of Dennis W. Shedd to the U.S. Court of Appeals for the Fourth Circuit. If Judge Shedd doesn't receive at least one vote from a Democratic Senator, his nomination will be rejected by the Senate Judiciary Committee today by a vote of 10-9.
Posted at 10:55 by Howard Bashman

Here and there: On National Review Online, Roger Pilon argues that our Nation needs "active," not "activist," judges. This past Sunday, a columnist for The Detroit Free Press wrote here about how "[f]or 35 years, [Sixth Circuit] Judge Damon Keith has made a point of hiring minority and female law clerks." (Link to freep article via Discriminations.)
Posted at 09:31 by Howard Bashman

You listen here: You can view online this morning's business meeting of the Senate Judiciary Committee, at which the federal appellate court nominations of Michael W. McConnell and Dennis W. Shedd are to receive votes, via the main C-SPAN television channel (updated), which you can access at this link. The meeting is scheduled to start at 10 a.m. eastern time today.
Posted at 06:56 by Howard Bashman

President Bush signs Pledge of Allegiance law: The Associated Press reports here that "President Bush signed into law on Wednesday a bill reaffirming -- with a slap at the 9th U.S. Circuit Court of Appeals -- references to God in the Pledge of Allegiance and national motto."

Two related pieces of legislation -- one sponsored by conservative religious groups, which would strip atheists of the ability to file Establishment Clause challenges in court; and the other sponsored by small businesses, which would add the phrase "all others pay cash" to the motto "In God we trust" -- remain bogged down in committee.
Posted at 06:51 by Howard Bashman

In Thursday's newspapers: If you're looking for additional coverage of yesterday's Megan's Law oral arguments before the U.S. Supreme Court, you can access reports from The New York Times - here, The Washington Post - here, and The Los Angeles Times - here. As Charles Lane of Post reports, the Court had two unexpected vacancies when oral argument got underway at 10 a.m. yesterday:
Yesterday's argument offered spectators a chance to see how the court operates without Justices Antonin Scalia and John Paul Stevens. The two men were caught in traffic caused by an early morning bomb scare that closed Independence Avenue NW, and their high-backed leather chairs were empty when arguments began at 10 a.m.

Stevens walked in at 10:30, and Scalia arrived nine minutes later.
Lastly, in a letter to the editor of The NYTimes, Bruce Fein argues against the use of a filibuster to oppose judicial nominees.
Posted at 06:42 by Howard Bashman

Wednesday, November 13, 2002
The Queen calls on England to adopt "victim justice system" in place of "criminal justice system": The Guardian offers this report on the Queen's proposals, which include scrapping the prohibition on double jeopardy for those acquitted of serious offences "where new and compelling evidence emerges."
Posted at 23:20 by Howard Bashman

Some words of wisdom from Circuit Judge Frank H. Easterbrook -- "'inflict' does not require mentation": Seventh Circuit Judge Frank H. Easterbrook today delivered a very interesting opinion rejecting the appeal of a criminal defendant who, in the words of the opinion's opening line, "does not believe in following laws, rules--or orders." At its conclusion, the opinion explains:
As for the question whether Jackson "inflicted" an injury on Scott: the jury was entitled to conclude that he did. Jackson contends that the word "inflict" means a deliberate plan to produce a consequence, and that an accidental harm is "caused" but not "inflicted." Sensible jurors could have concluded that Jackson did want to harm the deputy marshals. * * * But there is a deeper problem: "inflict" does not require mentation. Common phrases such as "the hurricane inflicted $100 million in damage" attest to this. Hurricanes, earthquakes, and other natural processes do not have minds, but they inflict big losses. Likewise Jackson inflicted Scott's injury no matter what was in Jackson's mind. Doubtless "inflict" is more restrictive than "cause"; if Jackson had not resisted, but Scott had tripped on his untied shoelaces while walking over to apply handcuffs, it would not make sense to say that Jackson had "inflicted" an injury. But the actual injury occurred while Scott was grappling with Jackson, who applied force directly to Scott's person. This satisfies the normal understanding of "inflict."
You can inflict this very interesting opinion upon yourself by clicking here (no mentation required).
Posted at 22:36 by Howard Bashman

Now available online at Tony Mauro reports on today's U.S. Supreme Court oral arguments in the Megan's Law cases. And Jonathan Groner of The Legal Times has a very interesting article entitled "A Major Shift in the Battle for the Bench: With GOP steering the Judiciary Committee, liberal advocates turn to more-desperate measures."
Posted at 22:27 by Howard Bashman

Enough with Gennifer Flowers, already! Attorney-blogger Fritz Schranck calls on Ninth Circuit Judge Alex Kozinski to eliminate the "(no relation)" parenthetical from his recent opinion in the Gennifer Flowers case, while another reader emails to say that on very close analysis he has decided that the "(no relation)" parenthetical was actually intended to recall then-President Clinton's statement that "[I did] no[t have sexual] relation[s with that woman, Miss Lewinsky.]"
Posted at 21:13 by Howard Bashman

Another horrible intrusion on the rights of young nude dancers: The U.S. Court of Appeals for the Eleventh Circuit (which still hopes someday to make its opinions easily available on its own Web site -- imagine that!) today ruled that the City of Warner Robins, Georgia did not unlawfully infringe on the constitutional rights of nude dancers under the age of twenty-one when it enacted an ordinance prohibiting persons under that age from entering or working at "any establishment * * * which sells alcohol by the drink for consumption on premises." No reaction to today's ruling has yet been received from the hardworking men and women at Robins Air Force Base who put their lives on the line each day to protect our Nation's safety and our right to dance nude and to enjoy the nude dancing of others. You can access the Eleventh Circuit's ruling via FindLaw at this link.
Posted at 20:58 by Howard Bashman

Dahlia Lithwick reports on today's "Megan's Law" oral arguments: You can access her essay online here, via Slate. Aside from the usual stuff, you can learn about an attorney's hairstyle that "sends Justices Stephen Breyer and Clarence Thomas into a giggling fit for the first few moments of his argument."
Posted at 19:02 by Howard Bashman

Today at the U.S. Supreme Court: Gina Holland of The Associated Press has this report on today's oral arguments in the "Megan's Law" cases. Additionally, The AP reports here on a cert. petition asking whether the Columbine High School in Colorado may display religious-theme tiles that the relatives of slain students created as part of a combination memorial and renovation project. You can access my original coverage of the Tenth Circuit's ruling in that case at this link.
Posted at 16:49 by Howard Bashman

Two zillion law professors: No doubt you've seen by now the letter that one zillion law professors signed some time ago in support of the confirmation of Michael W. McConnell to serve on the U.S. Court of Appeals for the Tenth Circuit. Well, yesterday a letter signed by what I presume to be a different zillion law professors surfaced opposing McConnell's confirmation. Yesterday's letter begins:
We write to oppose the nomination of Michael W. McConnell to the United States Court of Appeals for the Tenth Circuit. Professor McConnell's writings show that he is outside the legal mainstream, strongly opposing cases and legal doctrines that form the bedrock of Americans' constitutional rights.
And later, the letter states:
In this letter, we detail a few of the Supreme Court cases with which Professor McConnell takes issue. Although we may not all agree with the Supreme Court's decision in each case discussed below, we all agree with a significant majority of them and believe that a person who disagrees with all of these decisions should not be appointed to a circuit court seat.
You can access yesterday's anti-McConnell letter at this link. (Thanks to Discriminations for pointing out this latest letter.)
Posted at 15:55 by Howard Bashman

People who love [sheep] too much: Yesterday the Appeals Court of Massachusetts affirmed the dismissal of claims for emotional distress brought by the owners of seven sheep that were killed by two dogs owned by the defendants. The opinion states:
[The] evidence indicates that the plaintiffs regarded the sheep as their "babies" and spent six or seven hours a day with them, giving them names and celebrating their birthdays with special food and balloons. They patted, hugged, and brushed the sheep and baked snacks for them. When the sheep were young, the plaintiffs welcomed them into their home for up to four weeks at a time, bottle fed them, and allowed them to run through their home. The evidence also indicates that the plaintiffs suffered significant emotional distress and related physical problems not only at the time they returned from a trip to Syracuse, New York, and learned that the sheep had been killed on the previous day, but also when they viewed the dead sheep in a back yard hole in which they had been placed and partially covered with dirt. At no time did they have any interest in deriving any economic benefit from the sheep or from their wool or milk.
According to this news report, the lawyer for the plaintiffs plans to appeal to the Supreme Judicial Court of Massachusetts. You can access the Appeals Court's opinion by clicking here, then clicking on the link to "Opinions" beneath the heading "Appeals Court," and then finally by clicking on the link to the opinion in the case bearing the name "Robert KRASNECKY & another vs. David MEFFEN & another." (Link to news report courtesy of Obscure Store.)
Posted at 14:19 by Howard Bashman

A law professor answers on his blog my question about yesterday's Ninth Circuit ruling in the Gennifer Flowers case: Law Professor Jeff Cooper provides his views on the question I raised last night stemming from yesterday's ruling by the Ninth Circuit in the Gennifer Flowers case.
Posted at 11:59 by Howard Bashman

Votes on the nominations of McConnell and Shedd are on the tentative agenda for tomorrow's business meeting of the Senate Judiciary Committee: Tomorrow could prove to be an interesting day. (The agenda isn't available online yet, so you'll just have to trust me on this for now.)
Posted at 10:26 by Howard Bashman

In today's Los Angeles Times: Today's edition of The Los Angeles Times contains two articles from U.S. Supreme Court correspondent David G. Savage: here he reports on yesterday's Victoria's Secret oral argument, and here he covers the Court's order noting probable jurisdiction in the public library porn filtering case.

This article, entitled "Gennifer Flowers Case Is Reinstated," reports on yesterday's Ninth Circuit ruling. Read the article for the quote from Law Professor Stephen Gillers.

Finally, The LATimes prints two letters to the editor on "Chemerinsky's Proposal to Filibuster on Judges." The first letter is a scream; its author concludes by noting "I am one conservative who actually wishes [Chemerinsky] had been appointed to the 9th Circuit Court of Appeals. He would have fit right in on the most left-wing (and most overruled) federal appeals court in the nation, and at least we would no longer have to listen to his voice or read his columns."
Posted at 09:38 by Howard Bashman

Stay tuned for further discussion about defining and indentifying "judicial activism": Those who have been so kind as to email or write elsewhere in response to my post from Sunday night entitled "'Judicial activism' -- easy to criticize, but hard to define and identify" can rest assured that I do intend to address the point further sometime soon. So stay tuned. For now, I leave you with this email from a law professor at the University of Pittsburgh School of Law:
I applaud your comments on judicial activism. While I might not necessarily agree with every nuance, you are more on target than 95% of what is written, especially by academics.

There was a telling comment Thursday in Joan Biskupic's story on judicial nominations (USA Today at 12A). She wrote: "Bush's court choices generally have believed that society's problems should be solved by elected lawmakers, not judges."

It says something about where the debate is that that proposition is apparently controversial and even "extremist."
The law professor in question has a law review article on the subject that's soon to appear in print, and I look forward to mentioning it here when it hits the shelf.
Posted at 09:12 by Howard Bashman

The Amar brothers speak out about the Ninth Circuit: Would it be wrong if I found Akhil Reed Amar and Vikram David Amar to be especially brilliant when they agree with me? In any event, their discussion of the Ninth Circuit's recent medical marijuana-free speech ruling, and of the Ninth Circuit in general, is definitely worth a look.
Posted at 08:52 by Howard Bashman

More popular than lingerie? My colleague from down the hall has informed me that "How Appealing" is now the first selection one receives when performing a Google search for the word "appealing." Formerly in first place was an online seller of lingerie. Guess that makes "How Appealing" the equivalent of lingerie for the mind.
Posted at 08:42 by Howard Bashman

Another first for Eminem: Former writer Greg Beato takes a look at the career of Eminem, who's now at the top of the box office charts.
Posted at 08:40 by Howard Bashman

In Wednesday's newspapers: The New York Times reports here that "Democrats Plan to Allow Confirmation of 2 Judges," and the two in question are Michael W. McConnell and Dennis W. Shedd. Nothing like last minute confirmations to avoid the inevitable next year and simultaneously boost the Democratically-controlled Senate Judiciary Committee's statistics. Lloyd Grove, writing in The Washington Post, mentions here (final item) a certain Ninth Circuit ruling from yesterday under a heading of "Gennifer Flowers's Lawsuit Blooms Anew."

Both The NYTimes and The WaPo contain two articles each on yesterday's U.S. Supreme Court developments. Linda Greenhouse covers yesterday's Victoria's Secret oral argument here, while Charles Lane has a report here. Linda sums up the Court's orders here, and Charles does likewise here. Finally, Warren Richey of The Christian Science Monitor previews tomorrow's "Megan's Law" oral arguments here.
Posted at 00:20 by Howard Bashman

Tuesday, November 12, 2002
Another language I will now need to learn: Hmm, not quite sure what to make of this.

Update: A law student who says his understanding of Japanese is a bit rusty (and yet still so much better than mine) emails along the following translation:
How Appealing
Philadelphia lawyer Howard Bashman's site. Updated (lit: renewed) many times in one day. Lawyers or law students can use it to explain what they're doing to their spouses (this may be off slightly). If you (spouse of lawyer/law student) read this site, you can work on (lit: undertake) understanding your spouse (lawyer/law student)'s legal jargon (lit: lawyer language).
Finally someone has recognized the true purpose of "How Appealing" -- fostering marital harmony and understanding.

Second update: A reader with a Harvard Law School email address writes:
The second sentence in the translation your reader gave has the subject and object flipped (as your correspondent anticipated--"slightly off"). A closer translation might be: "For those of you with spouses that are lawyers or law students." Incidentally, the website's owner says she's married to a 2L at an unspecified law school in the Chicago area, so presumably she's had lots of experience with legal jargon.
Another reader sent in the Babel Fish translation, but that didn't prove too helpful.
Posted at 23:45 by Howard Bashman

Tony Mauro reports on today's Victoria's Secret oral argument: Here, via
Posted at 23:38 by Howard Bashman

Please speak into the lamp: As promised below, the facts of this opinion that the U.S. Court of Appeals for the Seventh Circuit issued today, written by Circuit Judge Frank H. Easterbrook, are quite fascinating. If you are engaged in a criminal enterprise, and someone offers to lend you a hand with some additional lighting accessories, you might want to think twice, today's decision suggests. And while the decision contains many mentions of an enterprise, it contains not one mention of the Starship Enterprise. (Huh? Click here to find out.)
Posted at 23:23 by Howard Bashman

A surprising result in an Eighth Circuit habeas corpus ruling today: A unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit today reached a surprising result in a habeas corpus case, holding that a convicted state court criminal defendant was entitled to a new trial under the following facts.

In open court, with the defendant present, the state trial court judge asked defendant's counsel, "Okay. And your client wants to affirmatively waive his rights to a jury trial; is that accurate?" To which defense counsel responded, "That's correct."

Following his conviction, the defendant maintained that his lawyer never had advised him of his right to a jury trial. At an evidentiary hearing in federal district court, the state court defense attorney testified that it was his general practice to tell his clients that they had a right to a trial by jury, but of course he couldn't precisely remember telling this particular client years earlier.

The federal district court, on these facts, granted the defendant a new trial, and today the Eighth Circuit affirmed. You can access the Eighth Circuit's ruling here.

The lesson seems to be that state court judges should question the defendant directly on the record to make sure the defendant actually understands and concurs in the decision to waive a jury trial. But on these facts, where the lawyer's testimony provides a high degree of certainty that the client did know of the right, and where the trial court's questioning of the defendant's lawyer in the defendant's presence, in plain and easy to understand English, made clear to the defendant that he had a right to a jury trial and that that right was being given up, the Eighth Circuit easily could have reached a different result in my view.
Posted at 23:07 by Howard Bashman

A clever interjection, or a gratuitous swipe at a former President? Early this afternoon, I posted here an item entitled "Ninth Circuit decides case of Gennifer Flowers vs. James Carville and Hillary Rodham Clinton, et al." At the close of my post, I wrote:
P.S. Anyone wish to guess at the meaning of the "(no relation)" parenthetical that follows a case citation found in the middle of the second full paragraph on page 14 of the opinion (which, confusingly, is page 12 of the PDF file)?
I received a barrage of emails in response, every last one of which understood the reference the same way that I did. Let me add toward the outset that today's opinion contains no mention of Monica Lewinsky whatsoever. (Bear with me, as this becomes important momentarily.) For those of you who have yet to take a look, the paragraph in question reads:
We agree with the district court that the trio of colorful waste metaphors--the references to the Star stories as "trash," "crap" and "garbage"--are not defamatory under Nevada law. "[M]ere rhetorical hyperbole" is not actionable. Wellman v. Fox, 825 P.2d 208, 211 (Nev. 1992). Wal-Mart can call a competitor's store "trashy," even if the store is not, in fact, unkempt. Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 129-30 (1st Cir. 1997) (no relation). And the Washington Times can call the protest signs in Lafayette Park the "garbage" of "pitiable lunatics" with impunity. Thomas v. News World Communications, 681 F. Supp. 55, 60, 63 (D.D.C. 1988). Even assuming that the "trash," "crap" and "garbage" statements were directed at Flowers rather than at the Star or the situation as a whole, they are nothing more than generic invective. See Levinsky's, 127 F.3d at 129 ("The vaguer a term, . . . the less likely it is to be actionable."). The law provides no redress for harsh name-calling.
Bold added for emphasis.

In response to my request for reader input, the always insightful Dr. Weevil emailed:
Was your question about "(not related)" in the decision rhetorical? Surely it's a sly joke about the name of the precedent, Levinsky vs. Wal-Mart, implying that some might think it had something to do with Monica -- despite the difference between Levinsky and Lewinsky. I mean, where Paula Jones is mentioned, surely Monica can't be too far away from one's thoughts?
A legal journalist based in California emailed to say:
My guess is Kozinski is trying for a joke based on the similarity between Monica Lewinsky and "Levinsky's" in the cited case. I'm guessing he just couldn't resist the reference, especially since the cited dispute dealt with "trashy" garments.
Or, as a first year student at the University of Chicago Law School emailed:
In response to your P.S. on the (no relation) in Judge Kozinski's opinion released today, it comes after Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122 (1st Cir. 1997). My supposition would be that Judge Kozinski (or a law clerk) is worried about any possible confusion between the plaintiff in that case and Ms. Monica Lewinsky. Granted, the names are spelled differently, but given the somewhat similar subject matters of extramartial sexual relations with Mr. Clinton, it sounds like the best explanation.
And I could go on and on quoting emails to similar effect from former federal appellate law clerks, scholars, and all-around smart people, but that, in the words of First Circuit Judge Bruce M. Selya (and Bill Shakespeare), would simply be painting the lily.

And yet I wonder. In a decision in which the Ninth Circuit is ruling against Hillary Rodham Clinton and two of President Clinton's former aides, arising from an alleged sex scandal, and the First Circuit opinion in question (Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 129-30 (1st Cir. 1997)) clearly has nothing to do with Monica Lewinsky, not to mention the actual difference in spelling, does the addition of the parenthetical "(no relation)" cross the line from a clever interjection to a gratuitous swipe at former President Clinton? Heck, I just ask these questions. You can choose to answer them, or not, as you see fit.

Update: The Associated Press has finally deemed this ruling to be newsworthy, nearly six hours after the decision was first mentioned on "How Appealing."
Posted at 21:48 by Howard Bashman

Judge Easterbrook's a Trekkie? The mentions of Seventh Circuit Judge Frank H. Easterbrook on his brother's page 2 column just keep getting curiouser and curiouser. Today this appears (click here and scroll approximately eighty percent of the way toward the bottom of the page):
On the continuing debate regarding 22nd century Romulan technological development, many readers objected to TMQ's contention that a cloaking device could hide a Romulan battle cruiser via bending starlight only if that vessel had at least a solar mass, because the Einsteinian bending of starlight requires powerful gravity, such as that of a star. Peter Clark of San Mateo, Calif., among many readers, pointed out that an episode of the Captain Picard version of "Star Trek" reveals that Romulan ships are powered by an on-board black hole, and black holes do generate enough gravity to bend starlight. Though it's never explained how the Romulans keep the black hole from swallowing up the ship, or for that matter from making the ship so heavy that it cannot move. A reader haikuized,

Romulan power?
Quantum singularity.
That's one heavy ship.
-- Michael Kasten, Houston

Even heavier than Ted Washington! The technical specification would have to read, "Warbird displacement: infinite tons." Is the Romulan on-board black hole some sort of advanced artificial singularity that can be turned off and on? In that case, reader Chuck Hagenbuch of Somerville, Mass., wondered: When the cloaking field is turned on, why doesn't gravity from the singularity distort space around the Romulan ship -- placing it at the bottom of a curved bell, as Einstein conceptualized gravity -- and cause all asteroids, starcruisers and planets in the vicinity to come crashing inward toward the cloaked ship?

Frank Easterbrook, Official Brother of TMQ and a physics buff, ventures this incredibly scientifically advanced explanation:

"It is quite possible for a 'small' black hole, let's say the mass of Mount Everest, to exist, and it would be tiny enough to be placed aboard a starcruiser. Compress the mass of Everest to the size of a molecule, and its gravitational distortion will be so great that light could not escape. But it would not suck in the rest of the Romulan ship any more than Everest sucks in mountain climbers. The tiny black hole would trap only things that got inside its 'Schwarzschild radius,' which is very tiny for Everest-size masses. And tiny black holes could produce a lot of power, via Hawking radiation. The entire mass of a tiny black hole eventually is turned directly into energy!

"But the rate of conversion is too slow to power a starship, and the ship would become invisible (that is, light would be bent around it) only if the event horizon of the black hole were at least as large as the ship. That would require a great deal of mass, probably planetary mass at least; and if the event horizon encompassed the ship, then nothing could ever emerge, including the ship. The Romulans would remain cloaked until the black hole evaporated through the Hawking process -- and they'd evaporate with it! Then there is the problem that, cloaked or not, the Romulan ship has to tug all the extra mass around. Who wants to expend enough energy to accelerate Mount Everest to the speed of light, let alone Warp Five, and then slow it down again to come into an orbit?

"Would natural black holes swallow up passing Romulan or Starfleet vessels? Not unless they had terrible pilots. We don't crash into the sun, which projects strong gravity, because we are in motion relative to it. Likewise, the black hole at the center of the Milky Way (estimated at 3 million solar masses) does not suck in the rest of the galaxy; as long as we keep moving, we stay in orbit around the galactic gravitational center. A ship that keeps moving on the proper trajectory could skirt even a very massive black hole. Anyone flying along in a starcruiser ought to be able to recognize that any area from which they are receiving no photons must contain a black hole, and simply set course somewhere else."
Well, I did enjoy and understand the Seventh Circuit opinion that Judge Easterbrook issued today, about which more will be said later. (Link to ESPN column via Greedy Clerks board, now proudly featuring the image of a certain law professor.)
Posted at 21:28 by Howard Bashman

A photo of the Justices in skullcaps at the 1997 Presidential Inauguration, from Justice Ruth Bader Ginsburg's chambers: A reader who remembered back to this blog's Justices in skullcaps competition from August 2002 (see links here, here, and here for the details and the winner) emailed along this link tonight. The photo, perched on a bookshelf in the U.S. Supreme Court chambers of Justice Ruth Bader Ginsburg, shows by my count five Justices wearing skullcaps on Inauguration Day in January 1997. The photo is a part of a really cool virtual tour of the U.S. Supreme Court building that you can take at the Oyez site. Click here to start at the beginning of the tour, or click here to start in Justice Ginsburg's chambers, where you can also view quite a few other interesting photos. Thanks so very much to the reader who sent this along.
Posted at 21:13 by Howard Bashman

Dahlia Lithwick takes us on a guided tour of today's U.S. Supreme Court Victoria's Secret oral argument: And of the Victoria's Secret online catalogue, too. You can access her essay here, via Slate.
Posted at 20:11 by Howard Bashman

Too young to serve on the U.S. Supreme Court? A veteran U.S. Supreme Court advocate emailed today to remind me that Joseph Story began serving as a Justice of the U.S. Supreme Court at the ripe old age of thirty-two in the year 1811. As a result, it doesn't really matter that Eugene Volokh, I'm reliably advised, is actually thirty-four years of age, not thirty-five as my earlier post had guessed.
Posted at 17:27 by Howard Bashman

The brand new edition of The Onion is reporting: "Supreme Court Makes Pact To Lose Virginity By End Of Year." And the article itself begins, "By an 8-1 vote Monday, the members of the U.S. Supreme Court collectively resolved to lose their virginity by Dec. 31, 2002." You can access the article at this link. (Thanks to the husband of author and blogger Jennifer Weiner for making sure I didn't miss this.)
Posted at 17:18 by Howard Bashman

Victor, Victoria, and Lawrence: Jonathan D. Salant of The Associated Press reports here on today's U.S. Supreme Court oral argument in the Victoria's Secret trademark dilution case. The article also mentions that today's argument marked the 157th(!) and final oral argument for Deputy Solicitor General Lawrence G. Wallace:
The case marked the final appearance of Lawrence Wallace, deputy U.S. solicitor general, who was making his 157th argument before the Supreme Court -- more than anyone else this century. Wallace is retiring at age 71.

* * *

Chief Justice William Rehnquist praised Wallace before the Syracuse, N.Y., native began to present his arguments. After thanking Wallace, Rehnquist added: "That doesn't mean we're going to rule in your favor."
It also probably didn't mean that Wallace got to finish his sentence when the red light illuminated at the podium.

By the way, given The AP's fascinating take on this oral argument, I can only hope that Dahlia Lithwick's coverage is soon to follow.
Posted at 16:16 by Howard Bashman

Fourth Circuit grants rehearing en banc to consider further South Carolina's regulation of abortion clinics: On September 19, 2002, I had a post here entitled "Divided Fourth Circuit panel rejects constitutional challenge to South Carolina's regulation of abortion clinics." After quoting several paragraphs from the dissenting opinion, my closing line of that post was, "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." Today the U.S. Court of Appeals for the Fourth Circuit posted an order to its Web site noting that the court granted rehearing en banc in this case on Friday, November 8, 2002. The panel's now-vacated opinion appears online here immediately behind the order granting rehearing en banc.
Posted at 15:20 by Howard Bashman

Ninth Circuit decides case of Gennifer Flowers vs. James Carville and Hillary Rodham Clinton, et al.: Today the U.S. Court of Appeals for the Ninth Circuit decided the case of Flowers v. Carville. As Circuit Judge Alex Kozinski's opinion for a unanimous three-judge panel explains:
Long after the public spotlight has moved on in search of fresh intrigue, the lawyers remain. And so we find ourselves adjudicating a decade-old dispute between Gennifer Flowers and what she affectionately refers to as the "Clinton smear machine": James Carville, George Stephanopoulos and Hillary Clinton. Flowers charges that said machine destroyed her reputation by painting her as a fraud and a liar after she disclosed her affair with Bill Clinton. We decide whether Flowers's claims are timely and, if so, whether they survive a motion to dismiss.
The opinion's conclusion provides the following summary of the court's ruling:
We AFFIRM the district court's dismissal of all claims based on Carville's book, the disclosure and intrusion claims against Clinton, and all claims based on Stephanopoulos's book other than those related to the tape-doctoring passage. We REVERSE dismissal of the defamation and false light claims based on Carville's Larry King interview, Stephanopoulos's Larry King interview, and the tape-doctoring passage in Stephanopoulos's book. We VACATE the denial of leave to file a second and third amended complaint and the dismissal of the conspiracy claims. We remand for further proceedings in accordance with our instructions. Each party shall bear its own costs in this appeal.
So, the case lives on. You can access today's ruling at this link.

P.S. Anyone wish to guess at the meaning of the "(no relation)" parenthetical that follows a case citation found in the middle of the second full paragraph on page 14 of the opinion (which, confusingly, is page 12 of the PDF file)?
Posted at 13:43 by Howard Bashman

Today's judicial confirmation news round-up: From The Weekly Standard, publisher Terry Eastland writes "Here Come Da Judges," and contributing editor Noemie Emery contends that "Priscilla Owen [was] an unsung winner of last Tuesday's election, and a partial architect of the Republican victory."

Incoming Senate Judiciary Committee Chairman Orrin G. Hatch (R-UT) had an op-ed in Sunday's edition of The Salt Lake Tribune entitled "Tribune Out of Order on Judicial Appointment." Elsewhere, columnist Cal Thomas had an essay entitled "Worst move for GOP would be to start slam-dunking policies," but even that piece encourages the Republicans to seek confirmation of President Bush's judicial nominees, including two whom the Democratic-controlled Senate Judiciary Committee voted to reject.

The Florida Times-Union last week contained an editorial entitled "JUDICIARY: Time for action." The Charlotte Observer contained an article reporting that Senator-elect Lindsey Graham has promised to continue to seek the confirmation of Fourth Circuit nominee Dennis W. Shedd next year if necessary. The Brattleboro Reformer contained an article entitled "Jeffords may be loser in election," and it also reports what prospects 2003 may hold for Senator Patrick J. Leahy (D-VT), who this year served as chairman of the Senate Judiciary Committee. Finally, The Puerto Rico Herald recently contained an op-ed entitled "Why Hispanic Caucus Rejects Estrada."
Posted at 12:50 by Howard Bashman

The AP summarizes today's noteworthy denials of U.S. Supreme Court review: "Court Rejects Campaign Finance Case," here; "Court Refuses Union Dues Case," here; and "Court Won't Review Wis. Assault Case," here. The Supreme Court issued no opinions today, by the way.
Posted at 12:33 by Howard Bashman

"Gay Boy Scout Leaders Lose Ruling": The Associated Press offers this report. You can access here last week's ruling of the District of Columbia Court of Appeals, which is the decision about which The AP is reporting.
Posted at 12:29 by Howard Bashman

"A judicial revolution": That's the title of Bruce Fein's op-ed in today's edition of The Washington Times. (Via Cooped-Up.)
Posted at 11:39 by Howard Bashman

Today's official U.S. Supreme Court order list is now available online: Here.
Posted at 10:56 by Howard Bashman

Senate Judiciary Committee executive business meeting scheduled for November 14, 2002: Could federal appellate court nominees Michael W. McConnell and Dennis W. Shedd be on the agenda? Time certainly will tell.
Posted at 10:35 by Howard Bashman

Today's U.S. Supreme Court order list: It's now available online here. Probable jurisdiction noted in one appeal, cert. granted in two cases (more info on these cases is available here and here), and the views of the Solicitor General are requested in a fourth case.

Aside from the gun info case, the other case in which the Court granted cert. today presents the question "Whether a National Park Service regulation that states that National Park Service concession agreements are not contracts within the meaning of the Contract Disputes Act of 1978, 41 U.S.C. 601 et seq., is valid."
Posted at 10:19 by Howard Bashman

No surprise here: "Supreme Court to Hear Web Porn Case," reports Gina Holland of The Associated Press. The law in question provides for review of its constitutionality by a three-judge district court, followed by mandatory appellate jurisdiction in the U.S. Supreme Court. Holland is also reporting that "Court to Hear Gun Info Privacy Case."
Posted at 10:15 by Howard Bashman

Too funny: Law Professor Paul Rosenzweig had an op-ed in The Orange County Register this past Friday suggesting Law Professor/Blogger Eugene Volokh as a possible U.S. Supreme Court nominee. Now, while I have no objection to law bloggers being considered for judgeships, I think that Volokh, who by my calculation is just thirty-five years old at best (actually he's now thirty-four, I later learned for certain), might benefit from a few more years of writing, teaching, and serving as a lower court judge. (Via InstaPundit.) Update: Recent former D.C. Circuit law clerk Stuart Buck shares his views on the Rosenzweig op-ed here.
Posted at 10:09 by Howard Bashman

The line between free speech and sexual harassment: A unanimous three-judge panel of the Court of Appeals of Michigan on November 1, 2002 issued its long-awaited ruling in a case that tests the boundary between free speech and sexual harassment. Observers who were hoping for a ruling in favor of free speech will be disappointed, as the court reaffirmed its earlier ruling that the defendants' actions in the case can be punished as sexual harassment. Of note, two of the three judges on the panel are currently nominees to the U.S. Court of Appeals for the Sixth Circuit, although the third judge wrote the opinion. Brian Dickerson, columnist for The Detroit Free-Press, offered these thoughts in his column yesterday. This may not be the end of the line for the defendants, however. Dickerson's column states at its outset, "Four conservative Republican justices who control Michigan's Supreme Court want to gut the state's sexual harassment law. But if they hoped others would do their dirty work for them, they're out of luck." Thanks to The LitiGator for word that this decision has issued.
Posted at 09:58 by Howard Bashman

In Tuesday's newspapers: The Washington Post reports here that "Lott's Promise to Bring Up Abortion Worries Bush Aides." In The Christian Science Monitor, Warren Richey previews both of the cases to be argued today in the U.S. Supreme Court (see here and here). Finally, The New York Times argues in an editorial that we should be affording seventeen-year-old Lee Malvo "consideration appropriate for someone his age" now that he is no longer indiscriminately killing people in the DC-area and elsewhere.
Posted at 01:15 by Howard Bashman

New this week from The National Law Journal: Law Professor Eric M. Freedman argues that the judiciary has weakened in the aftermath of September 11, 2001. Gary Young writes here about how President Bush and Republican Senators are hoping to deal favorably with the judicial confirmation backlog. Young also has a separate article reporting on the Indiana lawyer who was suspended from the practice of law for thirty days for taking too aggressive of a stance in a footnote. Hey, at least someone is reading his footnotes. And this of course simply provides one more reason to explain why I long ago eliminated all footnotes from my appellate briefs. (You can access the Indiana Supreme Court's ruling at this link.) Finally, Gail Diane Cox notes the defeat of South Dakota's proposed jury nullification constitutional amendment, observing that this means we may never know what would have happened if jurors "decided to ignore the law that says they can disregard the law?"
Posted at 00:47 by Howard Bashman

Are sex offender registration laws too narrow and too broad? Jacob Sullum offers these thoughts, via ReasonOnline.
Posted at 00:36 by Howard Bashman

With this Ring I thee death penalty reexamine: The Supreme Court of Nevada is scheduled to hear oral argument today in an appeal that asks that court to determine the impact of the U.S. Supreme Court's recent ruling in Ring v. Arizona on Nevada's death penalty sentencing scheme. This report from The Las Vegas Sun suggests that change may be in the offing.
Posted at 00:28 by Howard Bashman

A new feature added to "How Appealing": Below the seemingly endless list of blogs found on the left-hand side of this page is now a seemingly endless list of links to newspapers, magazines, etc., arranged in alphabetical order. Happy browsing. Oh, and if you see a newspaper that isn't listed but should be, please let me know.
Posted at 00:24 by Howard Bashman

Monday, November 11, 2002
"Democrats to Lead Lame-Duck Senate": The Associated Press tonight has this report.
Posted at 22:17 by Howard Bashman

Will Victor be able to keep his "Secret"? The U.S. Supreme Court will decide after hearing oral argument tomorrow, United Press International reports here.
Posted at 20:32 by Howard Bashman

U.S. Supreme Court to examine lawfulness of participation by non-Article III judge on Ninth Circuit panel: One of the cases in which the U.S. Supreme Court granted certiorari last week presents a fascinating question. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, consisting of the Ninth Circuit's chief judge, a senior Ninth Circuit judge, and the Chief District Judge for the District of the Northern Mariana Islands, sitting by designation, sat in Guam (where the current time is fifteen hours ahead of the time here in Philadelphia) and affirmed several federal drug offense convictions.

The defendants then filed a petition for writ of certiorari challenging the composition of the Ninth Circuit's panel, because the post of district judge for the District of the Northern Mariana Islanda is neither an Article III position nor does it have the Article III attribute of life tenure. Rather, judges in that post are appointed for ten-year terms (see here and here) and can even be removed by the President for "cause" before that term has expired. The U.S. Supreme Court granted review last week, proving that on rare occasion you can obtain the grant of certiorari by raising an issue never raised or briefed in the courts below.

I have long been interested in the issue presented in this case. As I wrote in my monthly appellate column published in March 2001, entitled "Questioning the Constitutionality of Recess Appointments to the Federal Judiciary":
It is uncertain what remedy should be afforded to a litigant who is disgruntled by the decision of an Article III appellate court in which a non-Article III judge has participated. The U.S. Supreme Court has recognized that where a judge who should be barred from deciding a case on appeal casts the decisive vote, the judgment cannot stand. See Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 827-28 & n.4 (1986). In Lavoie, three concurring Justices maintained that, where a judge impermissibly takes part in the decision-making process of a multi-judge court, the outcome must be vacated even if that judge did not cast the deciding vote.
The case that the U.S. Supreme Court agreed to review last week was decided by a unanimous three judge panel, so it will be interesting to see whether the participation in the decisionmaking process by one non-Article III judge will furnish a reason for setting aside the result. (See also 28 U.S.C. sec. 46(d), which provides that an appellate panel consisting of just two judges can decide a case if the third judge is disqualified or dies after being selected to serve on the panel.)

Today's edition of The Pacific Daily News of Guam contains an article about this case. (Link to article via SCOTUSblog.)
Posted at 15:14 by Howard Bashman

Veterans' Day or not, the Fifth Circuit has issued an opinion today: It's always great to hear from Fifth Circuit Judge Jerry E. Smith, and today is no exception. He emails, in response to my "don't expect any appellate court opinions on Veterans' Day" post:
Actually, despite the federal holiday and your post, some of us do work on holidays, including our clerk's office, which has already issued an opinion today, as reflected on the court's website.
It doesn't surprise me in the least that appellate judges are hard at work today, as they are on almost every other day of the year (including nights, weekends, and holidays). It is slightly surprising to see that the Fifth Circuit has actually issued an opinion today, but perhaps the Clerk's Office has to make-up the days off it recently received when hurricanes visited the New Orleans region.
Posted at 14:59 by Howard Bashman

My November 2002 appellate column is now available online via You can access this month's installment, entitled "Closed Deportation Hearings Issue Divides Courts," here via The Legal Intelligencer's Web site.
Posted at 13:57 by Howard Bashman

Who's in line to fill the next U.S. Supreme Court vacancy? The blog "Southern Appeal" takes a well-educated guess here.
Posted at 13:11 by Howard Bashman

And you thought last week's elections were all about [insert your most cherished issue here]: The results of last week's elections are not yet a week old, and already they have turned into something of a Rorschach Test where the lesson each observer draws from them tells you more about the observer than the results. (Hmm, I wonder what Tom Tomorrow might be saying about this?)

Tom Jipping, in an op-ed published in today's edition of The Washington Times, sees last week's result as a strong endorsement of The White House's current slate of judicial nominees. Whenever I read such stuff from Tom, the hobgoblin lurking in my little mind recalls that Tom was one of the leading conservative opponents of liberal Democratic judicial nominees during the Clinton Administration. Does this reveal a double standard? I'm sure he'd say "no," the Clinton nominees were bad and the Bush nominees are good.

Meanwhile, my post from last night about defining and assessing judicial activism has elicited much email already, and perhaps tonight I will reprint here and respond to the most interesting of those messages. In the interim, Sam Heldman has posted these thoughts on his blog, and here's commentary on my post from an Israeli perspective.
Posted at 12:40 by Howard Bashman

The jurisprudence of Bob Dylan: The brand new edition of The New Yorker magazine reports on a law professor who has found that "that Dylan's songs lay out an entire system of legal philosophy--a jurisprudence of Bob Dylan, if you will." I know some people who would rather attend law school than listen to too much Dylan, but I don't count myself among them.
Posted at 12:21 by Howard Bashman

Today is the federal holiday of Veterans Day: At least according to the Federal Rules of Civil Procedure, which spell the name of the holiday without any apostrophe. By contrast, the Federal Rules of Appellate Procedure refer to today as "Veterans' Day." The U.S. Supreme Court, in its rules, seems to favor the no apostrophe approach, adopting by reference the holidays set forth in 5 U.S.C. sec. 6103. In any event, as a result of today's holiday, no federal or state court appellate decisions are expected. Tomorrow, the U.S. Supreme Court will be back at work, hearing oral argument and issuing orders and perhaps more opinions. Finally, expect little to no blogging during the day this Friday, when I will be making a day trip on business to Chicago. Unfortunately, my visit into the friendly confines of the U.S. Court of Appeals to the Seventh Circuit does not involve an actual visit to the Seventh Circuit.
Posted at 10:02 by Howard Bashman

In Monday's newspapers: Today's edition of The Los Angeles Times contains an op-ed by Law Professors Erwin Chemerinsky and Catherine Fisk (time for a fisking, anyone!) entitled "No to a Far-Right Court: Use Filibusters." In The New York Times, columnist Bob Herbert has a column entitled "Behind the Smile," the final paragraphs of which touch on his concerns about how the federal judicial confirmation process will operate now that Republicans will control both the Presidency and the U.S. Senate.

Update: John Rosenberg has some very thoughtful remarks on today's LATimes op-ed by Chemerinsky and Fisk.
Posted at 09:45 by Howard Bashman

Sunday, November 10, 2002
"Judicial activism" -- easy to criticize, but hard to define and identify: Now that Republicans are all but guaranteed majority control of the U.S. Senate for the next two years, and liberal Democrats have begun to sound the alarm about how it will be so much easier than before for the Bush Administration to achieve the confirmation of conservative judges, which, the liberals argue, will assuredly result in conservative judicial activism run amok, it falls to me once again to try to be the voice of reason.

Some discussion of this issue has already occurred this weekend, but to very little useful effect. For example, two of the more peripheral contributors to The Volokh Conspiracy have had several posts on this subject this weekend, but none of those posts provides any useful definition of the sort of judicial activism actually at issue.

As citizens of the United States of America, we are entitled to have our own personal opinions concerning what the law should be. There may be parts of the U.S. Constitution with which we agree or disagree. There may be statutes -- laws passed by legislatures -- that we support and others that we wish did not exist. Finally, there are decisions by trial and appellate courts with which we may personally agree or disagree. When a court's ruling issues with which we disagree, we may think to ourselves, "If I was a judge on the court that decided that case, I would have ruled the other way, because I personally prefer the opposite result." There's nothing wrong with thinking those thoughts. Non-lawyers and even lawyers do so all the time.

What the general public all too often fails to recognize, however, is that the occupation of judging does not, when performed properly, consist of the judge ruling in whatever manner he or she personally prefers the most. Rather, when the task of judging is performed properly, the judge's personal preference as to outcome will in the overwhelming majority of cases have no impact whatsoever on the judge's ruling. How can I say that, you may be asking. Well, for two years I served as one of three judicial law clerks to a federal appellate judge who may have been the most politically conservative individual then serving on the U.S. Court of Appeals for the Third Circuit. And during those two years I'm not sure that I can point to even one decision in which the personal preferences of that federal appellate judge led him to rule one way when the applicable facts, statutory and constitutional law, and/or court precedents required a ruling the opposite way.

To begin with, the vast majority of cases pending in the Nation's federal appellate courts involve no issues or doctrines that would be at all controversial to anyone outside the confines of the given case. But even if the case did involve some controversial issue -- say a question of federalism or whether a state law seeking to regulate abortion access is constitutional -- the starting point for a responsible federal appellate judge is not to ask "Hmm, what outcome do I personally favor here, and is there any plausible way to achieve it?" Rather, every responsible federal appellate judge approaches even the most controversial issue by looking to see whether any precedent from the U.S. Supreme Court or the federal appellate court on which the judge is serving controls the case or provides guidance as to its resolution. In the year 2002, there are surprisingly few areas where the law is in equipoise -- evenly balanced -- and therefore a judge is free to decide a question one way or the other without any constraint on his or her personal preferences. Returning to our example, if the resolution of the case is dictated or suggested by existing precedent or other law, the responsible federal appellate judge will rule as the law dictates or suggests, without any regard whatsoever to his or her personal preference. And, if the result of an appeal is not dictated or suggested by existing law, there are still a whole host of recognized and neutral analytical approaches that a judge can employ in an attempt to reach the correct outcome. The end result is that there are few if any U.S. Court of Appeals rulings in existence in which the court reached an obviously wrong result based on the judges' personal preferences and the outcome had any wide-ranging significance. There may be rulings with which you vehemently disagree -- say the Pledge of Allegiance ruling or whatever -- but I guarantee you 99 times out of 100 those rulings cite authorities that authorize if not compel the court to rule the way that it did.

For these reasons, it is absurd for extremists on either side of the debate to work themselves into a tizzy over controversial nominees to the U.S. Courts of Appeals. True, the U.S. Courts of Appeals have the final word in thousands and thousands of more appeals than the U.S. Supreme Court ever decides on the merits. But the ability of a single federal appellate judge to enact his or her own preferences into law is severely limited and perhaps non-existent. First, the judge in question will need to find another judge on the three-judge panel willing to agree. Second, the judge will need a case not controlled or significantly constrained by existing precedent. Few such cases exist. Next, the judge will need to find a way to make the ruling look as though it is based on the law rather than on personal preference. This can perhaps be done, but it is not particularly easy where existing law runs contrary to the judge's personal preferences. Finally, the judge will need to find away for his or her misuse of the judicial office not to come to the attention of the public or the U.S. Supreme Court. For example, a dissenting judge could always point out where rulings are contrary to existing law or consist of nothing more than a judge's personal preference dictating the result, and the losing party can do likewise. On controversial issues like abortion or state rights, there is no chance that a controversial ruling will elude the attention of either the public or the U.S. Supreme Court. It is a testament to the system that you can count on one finger the number of federal appellate judges whose rulings seem to reach the U.S. Supreme Court with a presumption that they will be reversed, rather than affirmed.

Thus, I would define "judicial activism" to mean the actions of judges who do whatever is necessary to rule as they personally prefer, regardless of what existing law provides. At the federal appellate level, I challenge the readers of this blog to point to any rulings of significant consequence that reflect this type of judicial activism and that have avoided U.S. Supreme Court review.

In closing, I will concede that concerns about the sort of judicial activism I have described here are at their height when considering a nominee to serve on the U.S. Supreme Court. But that is why nominees to this Nation's highest Court receive especially exacting scrutiny, to ensure that they understand that their role as judges is not to decide cases based on nothing more than their personal preferences and to ensure nevertheless that their personal views are within the jurisprudential mainstream. But when it comes to U.S. Court of Appeals nominees, those opposing the confirmation of conservative yet highly qualified federal appellate court nominees are engaged in an obvious and inexcusable misportrayal of how federal appellate court judges actually decide cases and what little opportunity any single nominee has at that level to enact into law his or her own personal preferences.
Posted at 23:01 by Howard Bashman

Dahlia Lithwick on "Winona Scissorhands": You can access Dahlia's latest essay here, via Slate. Of course, if you're looking for the most comprehensive Winona coverage available, you should ride over to the Web site known as Winona Daily
Posted at 21:43 by Howard Bashman

A brand new Second Amendment cartoon from The New Yorker: The November 11, 2002 issue of The New Yorker magazine is that publication's annual cartoon issue. On page 155 one finds The New Yorker's latest Second Amendment cartoon (image not yet available online), which features the caption "We're saved! It's Second Amendment Man!" The New Yorker has a long history of Second Amendment-related cartoons, and you can access earlier efforts (arranged from oldest to most recent) here, here, here, here, here, here, and here.
Posted at 18:52 by Howard Bashman

How will Ed Rendell's election to be Pennsylvania's Governor affect his wife, U.S. Court of Appeals for the Third Circuit Judge Marjorie O. Rendell? Today's edition of The Pittsburgh Post-Gazette has this report. As for recusals, that's bound to be an even larger headache than before, when Ed Rendell was merely the Mayor of Philadelphia.
Posted at 11:08 by Howard Bashman

Yesterday's edition of C-SPAN's "America and the Courts" program: Last night's edition of C-SPAN's fine program "America and the Courts" featured an interesting combination of segments, according to this summary from C-SPAN's Web site:
This week, America and the Courts airs three recent events. First, Justice John Paul Stevens on the topic of judicial activism: He addressed the Chicago Bar Association on September 25th, following the presentation of the CBA's annual John Paul Stevens Award. After Justice Stevens, President Bush from the East Room of the White House on October 30th: Just before this week's mid-term election, he outlined an administration plan to expedite the consideration of judicial nominees. Finally, a Washington Journal segment also from October 30th: Judge Diana Murphy, the chair of the U.S. Sentencing Commission and a judge on the 8th Circuit Court of Appeals, took calls from viewers on the role of the U.S. Sentencing Commission in developing guidelines for sentencing in federal courts
Any day now, you'll be able to watch the program online via a link to be posted here.
Posted at 10:14 by Howard Bashman

In Sunday's newspapers: The lead editorial in today's edition of The New York Times sounds an alarm on the judicial confirmation front, warning that "Given the new political lineup, Democratic and moderate Republican senators must be more involved in the confirmation process to ensure that Justice Department ideologues do not have a free hand in shaping the federal judiciary for decades to come." I wish I had the time right now to identify all the misrepresentations and distortions contained in this very short editorial, but I will have to leave that to others. (Update: Juan Non-Volokh has some thoughts on this subject here and here.)

On the DC-area sniper matter, The NYTimes reports here that "Senior law enforcement officials said today that evidence suggested Lee Malvo, the 17-year-old charged in the Washington-area sniper shootings, was the gunman in most of the attacks that left 10 dead." Separately, reporter Adam Liptak has an article today entitled "Prosecutors in Sniper Cases Are Death Penalty Veterans." Of course, there are still those people who believe that the death penalty is never appropriate for seventeen-year-old offenders, as this op-ed from today's edition of The Washington Post demonstrates.

Finally, get ready for the outcry from so-called "civil libertarians" that is sure to follow should the U.S. Department of Justice hand over accused twentieth hijacker Zacarias Moussaoui to the U.S. Department of Defense for trial before a military tribunal in place of the criminal trial due to get underway soon in the nation's federal court system. Today's NYTimes reports that such a move is currently under consideration.
Posted at 10:02 by Howard Bashman

"Striking down legislation with bipartisan support" necessarily equals "judicial activism"? Cass R. Sunstein's op-ed published in yesterday's edition of The New York Times has elicited some well-deserved online criticism. See here and here, for example. Update: And here.
Posted at 09:51 by Howard Bashman

Saturday, November 09, 2002
The Associated Press is reporting: The Pentagon is investigating "who took and released photographs of terror suspects as they were being transported in heavy restraints aboard a U.S. military plane." You can view those photos here. And next week, the U.S. Supreme Court will hear oral arguments in two cases challenging so-called "Megan's Laws," The AP reports here.
Posted at 09:55 by Howard Bashman

In Saturday's newspapers: Law Professor Cass R. Sunstein has an op-ed in today's edition of The New York Times that begins, "The most important consequence of the new Republican majority in the Senate might well be a remade and more conservative federal judiciary, which will embark on a new program of judicial activism. Republicans, no less than Democrats, should be alarmed."

The Washington Post today is all over the latest developments in the DC-area sniper prosecutions. You can access here a front page article entitled "Authorities Grill Malvo For 7 Hours; 'Chatty' Teen Contrasts With Silent Muhammad." Here is an article entitled "Case Could Break Legal Ground; Sniper Suspects Charged Under New Va. Terrorism Law." Finally, here is an article entitled "High-Pressure Prosecutors; Knowledge, Eloquence Serve Horan In Fairfax."

Jumping ahead to Sunday, The New York Times Magazine has a very interesting cover story on animal rights, and a photomontage by William Wegman accompanies the article. The NYTimes Book Review features on its cover a review of "The Demon in the Freezer," a book about smallpox disease written by Richard Preston. You can access the first chapter of the book here, and you can access here the amazingly chilling article published a few years back in The New Yorker magazine on which the book is based.
Posted at 09:30 by Howard Bashman

Friday, November 08, 2002
Now available online at A divided Third Circuit panel ruled 2-1 that "Philly Mafia Boss Can Be Retried on Murder Charge," The Legal Intelligencer reports here. You can access the Third Circuit's ruling, issued today, at this link. The Texas Lawyer offers this report on the recent evenly divided en banc Fifth Circuit vote on whether to uphold a Hobbs Act conviction. You can access my prior coverage and a link to that decision here and here.

From the "you can't do this, can you?" file comes this article from The Fulton County Daily Report:
Eric J. Hertz was so confident he should win punitive damages for a man who allegedly was struck by a car that he told jurors he would turn in his bar license if they didn't find for his client.

They didn't.

Apparently, the unorthodox wager was only for dramatic effect -- Hertz said he has no intention of turning in his bar license.
Finally, a commentator for The Recorder takes a look at the uncertain status of the death penalty in the nation's federal court system.
Posted at 23:56 by Howard Bashman

The Seventh Circuit stands up for a lawyer's right to be paid for his work: On behalf of the legal profession generally, I thank you, Circuit Judge Frank H. Easterbrook, for this ruling issued today.
Posted at 23:44 by Howard Bashman

Sasha, Hanah, and me: I indeed did have the pleasure this evening of dining with Sasha Volokh of "The Volokh Conspiracy" and his girlfriend, Hanah Metchis of "Quare." Rounding out the group was my colleague from down the hall. Both Sasha and Hanah are exceptionally smart and very friendly, and it is obvious that they care a great deal about each other. I have no doubt that Sasha will prove to be an excellent law clerk for one of the Nation's best and brightest federal appellate judges. He also is an impressive storyteller and has a fine sense of humor. Hanah is also quite wonderful, notwithstanding the fact that she persists in her refusal to link permanently from her blog to "How Appealing" no matter what. (Nothing personal, mind you, but she doesn't enjoy law blogs as much as everybody else does. Plus, because I don't hold a grudge, her blog has been among my permanent links for quite a while now.)

Not surprisingly, we spent some time admiring the work of other bloggers. We talked briefly about the many other Volokh co-conspirators. We also mentioned or alluded to these other fine bloggers during the evening: Glenn Reynolds of "InstaPundit"; John and Jessie Rosenberg of "Discriminations"; Alice W. of "a mad tea-party"; Denise Howell of "Bag and Baggage"; Garrett Moritz of "gTexts"; Dahlia of "Sporadic Thoughts"; Virginia Postrel of ""; Josh Chafetz of "OxBlog"; TPB, Esq. of "Unbillable Hours"; Rafe Colburn of ""; and the "Boing Boing" blog. Sasha also shared a judicially-related ballad (spoken word version) and described the latest in law school games (Harvard Law School version). In exchange, I informed Sasha of a fact he didn't know that is noted on the resume of a certain federal appellate judge about whom Sasha may have thought he knew almost everything. In all, it was quite a fun evening, and if you ever have the opportunity to have dinner with Sasha and/or Hanah, be sure to say yes.
Posted at 22:45 by Howard Bashman

Florida voters overwhelmingly approve constitutional amendment allowing execution of sixteen- and seventeen-year-old offenders: At the ballot box on Tuesday, Florida voters approved by a margin of seventy percent for and thirty percent against an amendment to that State's Constitution that will allow the death penalty to be imposed for capital offenses committed by sixteen- and seventeen-year-olds. This development would seem to counter a trend that was recently relied on by four U.S. Supreme Court Justices in arguing that the Court should abolish the death penalty for anyone who commits a crime while under the age of eighteen.
Posted at 17:02 by Howard Bashman

He doesn't just write about stupidity: Sorry, but sometimes this stuff simply demands to be mentioned. Update: And here's a local newspaper's take on the same story, link via Obscure Store.
Posted at 16:25 by Howard Bashman

On deck for December 2002: With my November 2002 appellate column in the hands of my editor and due to be published in The Legal Intelligencer on Monday, November 11, 2002, my attention can turn to my topic for December 2002. Monday's column examines the conflicting recent decisions of the Third and Sixth Circuits over whether the press and public have a First Amendment right of access to attend terrorism-related deportation proceedings and predicts how the U.S. Supreme Court is likely to rule on the question. For December 2002, my topic will be: Has the process of selecting and confirming judges to serve on federal appellate courts become too politicized, and, if so, what can be done to make the process work better? If you'd like to receive a copy of my column in PDF format via email on the day of its publication each month, a free and easy sign-up awaits you here.
Posted at 15:14 by Howard Bashman

Thanks to The New York Post, there's no need to leave S&M Barbie sex doll to your imagination any longer: On Wednesday night, I posted here:
Tonight's amazing headline: "Showing Barbie Doll's Head on Sex Web Site May Be Fair Use." You can access the article to which this headline belongs here. And do you remember the arguably related, chillin' Ninth Circuit ruling that I reported on here?
Today a former colleague of mine kindly emailed a link to The New York Post's take on the latest Barbie dispute. Caution, a graphic image of an S&M Barbie doll appears alongside the article.
Posted at 14:49 by Howard Bashman

"Doctor to John Wilkes Booth Gains Another Day in Court"? Apparently Not: In a post here on September 4, 2002, I noted an article published that day in The New York Times reporting on oral argument before the U.S. Court of Appeals for the District of Columbia Circuit in a case that sought 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. Today the D.C. Circuit announced its decision, ruling that the plaintiff -- the great-grandson of Dr. Samuel A. Mudd -- lacked standing to bring the suit.
Posted at 14:18 by Howard Bashman

Eighth Circuit affirms federal sentence of life in prison without parole for white supremacist convicted of RICO and Hobbs Act crimes: You can access the ruling, issued today, at this link.
Posted at 13:57 by Howard Bashman

You've got subpoena: The Washington Post online reported yesterday that "America Online Inc. officials may ask the Virginia Supreme Court to reconsider its ruling ordering the company to disclose a subscriber's name, a spokesman for the Internet provider said yesterday." You can access the ruling of the Supreme Court of Virginia at this link. (Thanks to Philadelphia Inquirer columnist Mitch Sommers for alerting me to this ruling days before the Post's article appeared.)
Posted at 13:38 by Howard Bashman

Last night's episode of CSI reveals the terror of FedEx: I had the pleasure of tuning in to last night's episode of CSI (or "Crime Scene Investigation," for those who disdain alphabet soup). The episode opens with a prisoner being strapped onto an execution gurney in Nevada for administration of the lethal injection. Immediately after the first drug is administered, the telephone rings, granting a stay of execution, but the prisoner is already unconscious so the paddles are immediately brought in to shock him back to life. (First a lethal injection, then electrocution!)

The basis for the stay of execution was to allow six hair samples found on the victim, and presumed to be from the perpetrator of a rape and murder that occurred before modern methods of scientific evidence evaluation became available, to be examined using a sophisticated DNA test at an FBI crime lab in Virginia. Next thing that we see is a FedEx box containing the hairs being dispatched from Las Vegas and thrown into the back of a FedEx truck. Because the show continued to intersperse segments showing the FedEx box wending its way across the country, I couldn't help but anticipate that the evidence was going to be misplaced or, perish the thought, lost forever. But no, despite every indication (e.g., dramatic music welling up to a crescendo) each time the FedEx box was shown, the box made its way to the FBI crime lab in one piece (and presumably on time, because the CSI crew was not shown seeking a refund from FedEx). In real life, there are times just like that where you use FedEx and then worry whether the package will get where it's supposed to be going, because it's been dispatched onto the wrong route or onto the wrong truck. But not on TV, thankfully.

As it turned out, the hairs FedEx-ed to Virginia precisely matched the DNA of the inmate whose brush with execution started the show. Thus, toward the end of the show, the same inmate is strapped back onto the table, we are shown the first drug being administered, and then the camera pans back to show the phone, but this time it doesn't ring.
Posted at 13:12 by Howard Bashman

Welcome to the wonderful world of qualified immunity, attorney Greene: Today the U.S. Court of Appeals for the Sixth Circuit decided an appeal involving a six-foot, 300-pound lawyer who went to the Grand Rapids, Michigan Police Department to retrieve his automobile after it had been towed from a no-parking zone and who ended up being sprayed with pepper spray and then handcuffed. The attorney sued three police officers and the City of Grand Rapids under the federal civil rights act for having arrested him allegedly without probable cause and in retaliation for his having insulted one of the officers. Thereafter, the federal trial court dismissed the case in full, based on qualified immunity. Today the Sixth Circuit affirmed in large part and reversed in small part, for the reasons given in that court's opinion.
Posted at 11:58 by Howard Bashman

Today's FindLaw columnist: John W. Dean (remember him?) argues here that "Election 2002 does not give the Bush-Cheney administration a mandate to load the federal judiciary with right wing judges."
Posted at 11:04 by Howard Bashman

In Friday's newspapers: The Washington Post today contains both a news article and an editorial about this week's U.S. Senate election results and federal judicial confirmations. The Christian Science Monitor today contains an article entitled "After GOP Senate sweep, judiciary is set to shift right." In The New York Times, columnist Nicholas D. Kristof hypothesizes here about Chief Justice Scalia in 2004. And, as expected, the likelihood of obtaining the death penalty loomed large in the U.S. Department of Justice's decision on where to allow the DC-area sniper suspects to be tried first, The NYTimes reports here.
Posted at 10:47 by Howard Bashman

Sasha Volokh's in town: Word is that Sasha Volokh of "The Volokh Conspiracy" is visiting the Philadelphia region through Sunday, which could lead to an ad hoc law blogger meet-up at a nearby restaurant this evening (or so we both are hoping). Stay tuned for details. No word yet on whether that will be followed by a trip to the shooting range or a game of Legal Pictionary, but if so be forewarned, I draw a wicked proposed U.S. Court of Appeals for the Twelfth Circuit and a half-decent quo warranto and subpoena duces tecum.
Posted at 10:44 by Howard Bashman

Thursday, November 07, 2002
Today's reader mail: A fine crop of reader mail arrived today. Here's a sampling:
Your site is a great compliment to my legal education as a 2L here at William and Mary Law! When 1st Amendment class gets bogged down in the "Lemon" test or we go over the XXth exception to the hearsay rule in Evidence class, I just plug in my LAN card and see what's really going on out in the appellate courts.

Just wanted to say thanks!
I received the following email today from Africa, and the email didn't ask me to engage in a financial transaction guaranteed to net me millions of dollars:
Been enjoying your blog from far-flung Kenya.

Do you know if the judges of the 7th circuit who dissented from the en banc rehearing of the so-many hours mandatory delay Indiana abortion case issued any opinion dissenting from that denial. I ask because I think Judge Posner's views rock.
If it weren't for "How Appealing," I wouldn't know about Circuit Judge Richard A. Posner's substantial fan base in Kenya. And for those who doubt the authenticity of this email, it arrived from the ".ke" domain assigned to Kenya. By the way, the answer to this reader's question is that no dissenting opinion was filed from the denial of rehearing en banc in that case.

An electrical engineer from Dallas, Texas writes:
I just wanted to tell you that this non-lawyer bookmarked your web site the week after you started it. I appreciate your efforts to summarize the issues that face our courts today in a way that avoids jargon & partisanship yet teaches & informs. You also have a very good knack for presenting controversial topics in a non-threatening and sensitive way.

I hope you find "How Appealing" worth your time and effort for many, many months to come.
Most people also find me non-threatening and sensitive in person, notwithstanding that I am quite the natty dresser and have a most enticing grin.

Next, an experienced appellate lawyer and former appellate judge based in western Pennsylvania emailed to comment on my recent post entitled "eschew cliches." The email states:
Eliminating cliches from writing sometimes is difficult. Normally, I would avoid cliches like the plague, but occasionally if the shoe fits, one must wear it. Third Circuit judges are not immune. See Kelly v. Ford Motor Co., 110 F.3d 954 (3d Cir. 1997) (using every cliche under the sun to justify collateral order review of order compelling production of documents arguably covered by attorney-client privilege).
Of course, as faithful readers of my monthly appellate column are aware, in May 2002 I called on the Third Circuit to grant rehearing en banc in order to overrule the Kelly v. Ford case. Perhaps some day that will happen.

Finally, friend of "How Appealing" and Slate Senior Editor Dahlia Lithwick couldn't resist joining in on the email bandwagon this evening. She writes, partially in response to an earlier post of mine that you will find here:
It's ok Howard, I looked up YOUR porn star name too! Congrats on your [blog's] anniversary and may you continue to flourish and grow. I can't tell you how much I've come to depend on your site. Kudos!
At times like this I just remind myself that I've loved Dahlia's work for many more years than she's had the opportunity to enjoy mine.

Thanks so much to everyone who took the time today to write!
Posted at 22:44 by Howard Bashman

President Bush speaks briefly about federal judicial nominees at press conference this afternoon: The following quotation is from the official White House transcript:
Q Do you intend to resuscitate the nomination of Priscilla Owen and Charles Pickering? And, also, how bloody do you think the next Supreme Court nomination will be?

THE PRESIDENT: Well, first, I want the new chairman of the Senate Judiciary Committee to understand that I am very serious about the reforms that I suggested in the East Room, about how to get this process of nominating judges and approving judges on the right course, not only for this administration, but future administrations; not only for this Senate, but future Senates. And so step one on the judiciary process, I believe there needs to be reform. I would be glad to reprise the reforms if you can't remember them.

Q Owen and Pickering, are they going to --

THE PRESIDENT: I'll be there in a minute. (Laughter.) I'm using this as an opportunity to make a point on judicial reform. And that is that if a judge thinks he's going to retire, give us a year's notice, if possible. And then we will act -- "we," the administrative branch, will nominate somebody and clear them within 180 days. And then the Senate judiciary has got 90 days to go through the process and then get the person's name to the floor, and 180 days for an up or down vote. To me that would be a needed and necessary reform.

So step one on the nomination process is to work with Senator Hatch -- and Senator Leahy -- to put these reforms in place; is to convince members of the Senate we're serious about a process that will get rid of the old bitterness of the judicial process.

This is probably not to your liking, by the way. You love those court fights. I'm confident it makes great covering and great stories.

I also said at the time of Priscilla Owen's being -- not being put to the floor of the Senate that I would hope that the judiciary committee would let her name out to the Senate floor at some point in time. We don't have to recommit them, they never -- they're there. Pickering and Owen are still there at the committee level. They just weren't ever -- their names were never let to the floor for a vote.

By the way, if they had been let to the floor for a vote, we believe they would have won the vote -- perhaps the reason why they were never let to the floor for a vote. But -- so, I hope that judiciary committee will let their names out and they get a fair hearing.
You can access the complete transcript of this afternoon's press conference at this link.
Posted at 22:30 by Howard Bashman

U.S. Supreme Court "Mulls Mental Illness Issue": Gina Holland of The Associated Press has this report, which focuses on yesterday's last minute stay of execution in a Texas death penalty case.
Posted at 20:25 by Howard Bashman

"Abortion Rights Backers Show Alarm": The Associated Press offers this report on the aftermath of Tuesday's elections for the U.S. Senate. The article quotes the president of the National Organization for Women as saying, "Roe v. Wade hangs by a single vote. Tipping the balance of the Supreme Court with one more extremist justice would ensure the loss of abortion rights for generations." That quotation contains two serious errors by my count. First, the vote on today's U.S. Supreme Court to uphold Roe v. Wade is 6-3, not 5-4. (When Justice Ruth Bader Ginsburg replaced Justice Byron R. White on the Court, the vote to uphold Roe increased from 5-4 to 6-3.) Second, if Roe v. Wade were overruled by the U.S. Supreme Court -- a prospect that is not especially likely -- abortion would not thereupon become illegal throughout the United States. Rather, each State would then be entitled to enact laws regulating the availability of abortion, or not, as it saw fit.
Posted at 20:15 by Howard Bashman

California federal district judge declares unconstitutional federal law requiring certain felons on federal supervised release to submit to DNA testing: The Associated Press has this report. And you can access the ruling of Chief Judge William B. Shubb of the U.S. District Court for the Eastern District of California (a court whose Web site plays soothing music!) at this link.
Posted at 20:06 by Howard Bashman

On the third hand: Two articles contained in today's edition of The Washington Post seem to be sending mixed signals on the issue of federal judicial confirmations in the next session of the U.S. Senate. Here, Amy Goldstein and Charles Lane report that "The Bush administration and congressional Republicans immediately began to map out yesterday how they could use the GOP's sudden ascendancy in the Senate to accelerate the approval of judicial candidates, possibly including a pair of nominees who were rejected in recent months." By contrast, here Helen Dewar reports that "Dramatic as it was, the Republican takeover of the Senate in Tuesday's elections does not guarantee smooth sailing for GOP priorities in a chamber that is still closely divided and controlled by rules that often foster delay and stalemate." Stay tuned!
Posted at 17:14 by Howard Bashman

Last minute order of U.S. Supreme Court staying Texas inmate's execution yesterday is now available online: Here.
Posted at 16:39 by Howard Bashman

Creator of "Captain America" wins a round against Marvel Comics: Hey, he is a superhero, right? You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link. Update: Cartoon and comics blogs are big, and thanks to me they're all over this ruling. See here and here, for example.
Posted at 16:25 by Howard Bashman

More commentary on the incoming U.S. Senate and its impact on federal judicial confirmations: Senator Patrick J. Leahy (D-VT), outgoing chairman of the Senate Judiciary Committee, yesterday issued this press release defending the committee's actions while it was under his party's control. Meanwhile, CNN's Web site offers this snippet, entitled "Judicial nominations in GOP's hands," from a very recent Crossfire program that featured as guests Democratic strategist Tony Coelho and former Republican U.S. Representative from Pennsylvania Bob Walker.
Posted at 16:14 by Howard Bashman

CNN is reporting that Virginia has prevailed in the competition to be the first jurisdiction to try the sniper suspects for murder: See the home page for more details on this breaking story.
Posted at 12:45 by Howard Bashman

My next Third Circuit oral argument: On October 28, 2002, I received a fax from the Clerk's Office of the U.S. Court of Appeals for the Third Circuit advising me that the court would be holding oral argument in Philadelphia on Wednesday, December 18, 2002, at 1 p.m. in a pro bono appeal that the court asked me to handle earlier this year.

In this matter, the Third Circuit appointed me to serve as amicus curiae and file a brief in support of affirmance of a disciplinary order that suspended an attorney from the practice of law in the U.S. District Court for the Eastern District of Pennsylvania for thirty months. The federal district court's suspension was reciprocal discipline based on an earlier order of the Supreme Court of Pennsylvania suspending the lawyer for sixty months. The Pennsylvania Supreme Court's suspension order upheld charges that the lawyer had falsely and recklessly accused two Pennsylvania state court judges of judicial misconduct.

The Third Circuit rarely appoints lawyers to serve as counsel in support of a result, rather than to represent a party. This case has received plenty of news coverage in the local legal press during the past two years -- in part because the suspended attorney is the brother of a sitting U.S. District Judge in Philadelphia, and the suspended attorney twice sought election to serve on the Supreme Court Pennsylvania -- and all non-disqualified district court judges, active and senior, voted on the disciplinary order that is the subject of the appeal. I viewed it as quite an honor to be asked, in essence, to represent the ruling of the entire bench of the U.S. District Court for the Eastern District of Pennsylvania in this appeal. You can access online the district court's majority opinion (here) and dissenting opinions (here and here).

The amicus brief that I filed in the Third Circuit in support of affirmance of the district court's thirty-month suspension is available online here (PDF file), and I remain very pleased with it (which I enjoy being able to say, as the brief's lone author). Even though the brief was filed in the Third Circuit, I followed the Seventh Circuit's typography suggestions, which you can find here. The disciplined attorney's opening brief on appeal was filed by local First Amendment luminary Samuel E. Klein, Esquire, whose recent untimely death still leaves me sad.

Given how interesting this appeal is and the attention that the national press has lately been giving to cases involving attorney discipline and criticism of judges (see here and here, for instance), I thought I'd mention my upcoming date with the Third Circuit's recently refurbished podium.
Posted at 11:40 by Howard Bashman

A British appellate court examines the USA's war on terror: As I first mentioned here yesterday, a British Taliban suspect held at the U.S. Naval Station at Guantanamo Bay, Cuba lost his appeal to a British appellate court to force the United Kingdom to intervene on his behalf. The British court's ruling is now available online, and it is most fascinating. It begins:

Feroz Ali Abbasi, the first claimant, is a British national. He was captured by United States forces in Afghanistan. In January 2002 he was transported to Guantanamo Bay in Cuba, a naval base on territory held by the United States on long lease pursuant to a treaty with Cuba. By the time of the hearing before us he had been held captive for eight months without access to a court or any other form of tribunal or even to a lawyer. These proceedings, brought on his behalf by his mother, the second claimant, are founded on the contention that one of his fundamental human rights, the right not to be arbitrarily detained, is being infringed. They seek, by judicial review, to compel the Foreign Office to make representations on his behalf to the United States Government or to take other appropriate action or at least to give an explanation as to why this has not been done.

On 15 March 2002 Richards J. refused the application for permission to seek judicial review. However, on 1 July 2002 this court granted that permission, retained the matter for itself, and directed that the substantive hearing commence on 10 September 2002. It did so because the unusual facts of this case raise important issues. To what extent, if at all, can the English court examine whether a foreign state is in breach of treaty obligations or public international law where fundamental human rights are engaged? To what extent, if at all, is a decision of the executive in the field of foreign relations justiciable in the English court? More particularly, are there any circumstances in which the court can properly seek to influence the conduct of the executive in a situation where this may impact on foreign relations? Finally, in the light of the answers to these questions, is any form of relief open to Mr Abbasi and his mother against the Secretary of State for Foreign and Commonwealth Affairs?

Mr Abbasi's predicament

Mr Abbasi was one of a number of British citizens captured by American forces in Afghanistan. He was, with others, transferred to Guantanamo Bay. Those currently detained there include seven British citizens. As soon as she learned what had happened to her son, Mrs Abbasi made contact with the Foreign Office. Through lawyers, she pressed the Foreign Office to assist in ensuring that the conditions in which her son was detained were humane. She has also pressed the Foreign Office to procure from the United States authorities clarification of her son's status and of what is to be done with him in the future.

Evidence of action taken by the United Kingdom Government in relation to Mr Abbasi and the other British detainees in Guantanamo Bay has been provided in a witness statement by Mr Fry, a Deputy Under-Secretary of State for Foreign and Commonwealth Affairs. He speaks of close contact between the United Kingdom Government and the United States Government about the situation of the detainees and their treatment and of the consistent endeavour of the government to secure their welfare and ensure their proper treatment. To that end, we are told, the circumstances of the British detainees have been the subject of regular representations by the British Embassy in Washington to the United States Government. They have also been the subject of direct discussions between the Foreign Secretary and the United States Secretary of State as well as 'numerous communications at official level'.

The government was able to obtain permission from the United States Government to visit detainees at Guantanamo Bay on three occasions, between 19 and 20 January, between 26 February and 1 March and between 27 and 31 May. These visits were conducted by officials of the Foreign and Commonwealth Office and members of the security services. The former were able to assure themselves that the British prisoners, including Mr Abbasi, were being well treated and appeared in good physical health. By the time of the third visit, facilities had been purpose built to house detainees. Each was held in an individual cell with air ventilation, a washbasin and a toilet. It is not suggested by the claimants that Mr Abbasi is not being treated humanely.

The members of the security services took advantage of these visits to question Mr Abbasi with a view to obtaining information about possible threats to the safety of the United Kingdom. Initially this was the subject of independent complaint by the claimants, but before us the argument has focussed on the allegation that the Foreign and Commonwealth Office is not reacting appropriately to the fact that Mr Abbasi is being arbitrarily detained in violation of his fundamental human rights.

The position of the Foreign and Commonwealth Office is summarised by Mr Fry in the following terms:

"In cases that come to us with a request for assistance, Foreign and Commonwealth Ministers and Her Majesty's diplomatic and consular officers have to make an informed and considered judgement about the most appropriate way in which the interests of the British national may be protected, including the nature, manner and timing of any diplomatic representations to the country concerned. Assessments of when and how to press another State require very fine judgements to be made, based on experience and detailed information gathered in the course of diplomatic business.

"In cases where a person is detained in connection with international terrorism, these judgements become particularly complex. As regards the issue of the detainees now at Guantanamo Bay, as well as satisfying the clear need to safeguard the welfare of British nationals, the conduct of United Kingdom international relations has had to take account of a range of factors, including the duty of the Government to gather information relevant to United Kingdom national security and which might be important in averting a possible attack against the United Kingdom or British nationals or our allies; and the objectives of handling the detainees securely and of bringing any terrorist suspects to justice."

In or about February 2002 the claimants initiated habeas corpus proceedings in the District Court of Columbia. As we shall explain, rulings in proceedings brought by other detainees in a similar position demonstrate that Mr Abbasi's proceedings have, at present, no prospect of success.
You can access the complete decision at this link. (Link to opinion via Jurist.)
Posted at 10:54 by Howard Bashman

"Former Chief Justice Rehnquist?" Terry Eastland, publisher of The Weekly Standard, has an essay bearing this title on that publication's Web site this morning.
Posted at 08:37 by Howard Bashman

Wow! A warm, heartfelt thanks to The Seattle Times for this morning's mention of "How Appealing."
Posted at 06:20 by Howard Bashman

In Thursday's newspapers: Now that the Republicans are back in control of the U.S. Senate, it's time to get President Bush's judicial nominees confirmed, The New York Times reports here and here. In the second of those two articles, Senator Edward M. Kennedy (D-MA) went so far as to mutter the "F"-word ("filibuster," that is) with respect to judicial nominees.

In news pertaining to the U.S. Supreme Court, Linda Greenhouse of the NYTimes reports here on yesterday's fear of asbestos disease oral argument. Charles Lane of The Washington Post, who must be thinking why write about fear of death when you can write about actual death, instead focuses on yesterday's death penalty oral argument in a case that can with understatement be described as a procedural morass. Lane's article probably marks the first and last time Federal Rule of Civil Procedure 60(b) will be mentioned in a WaPo headline. Finally, the NYTimes managed to whip up a report on the U.S. Supreme Court stay of execution that issued tonight.
Posted at 00:31 by Howard Bashman

U.S. Supreme Court grants last minute stay of execution in death penalty case: The Associated Press has this report.
Posted at 00:20 by Howard Bashman

Wednesday, November 06, 2002
Tonight's amazing headline: "Showing Barbie Doll's Head on Sex Web Site May Be Fair Use." You can access the article to which this headline belongs here. And do you remember the arguably related, chillin' Ninth Circuit ruling that I reported on here?
Posted at 22:28 by Howard Bashman

Today's Seventh Circuit trifecta: Circuit Judges Richard A. Posner and Frank H. Easterbrook combined today to issue a total of three opinions. Here, Judge Posner explains exactly what it takes to bring this little piggie to market. Here, Judge Posner suggests that making a fraudulent transfer to one's girlfriend is just a tad too obvious. And here, Judge Easterbrook recites the unfortunate account of a federal prisoner who may have received a prison sentence that was between six and twenty-one months too long, but who then managed to avail himself of every possible way in which to forfeit review of that error.
Posted at 22:20 by Howard Bashman

Hearing ear dog not welcome in Hawaii: I know that guide dogs for the blind are called seeing eye dogs, but what are guide dogs for the deaf called? "Not welcome in Hawaii" is the answer provided by this opinion that the U.S. Court of Appeals for the Ninth Circuit issued today. (As much as I'd like to claim credit for inventing the term "hearing ear dog," a simple Google search reveals that it's already very much in use.)
Posted at 22:03 by Howard Bashman

Kudos to the Tenth Circuit: The U.S. Court of Appeals for the Tenth Circuit deserves praise, for today on its Web site it has begun the practice of separating newly announced published opinions from newly announced unpublished opinions. Before today, the only way to tell if opinions announced on a given day were published or not was to click on the link and see. I would probably be pressing my luck to suggest that the Tenth Circuit could next consider posting opinions to its Web site each day at an earlier time than it now does. The Tenth Circuit now posts opinions to its Web site at 8:20 p.m. eastern time. By contrast, the Ninth Circuit, whose Clerk's Office is located in the pacific time zone, posts opinions by 3 p.m. eastern time each day.
Posted at 21:25 by Howard Bashman

Eschew cliches: I'm in the midst of wrapping up a reply brief due to be filed in an appellate court early next week. While I was clerking for a judge on the U.S. Court of Appeals for the Third Circuit, my most common complaints about the many appellate briefs I read were that they were too long, too boring, and so poorly written. One piece of advice that I always follow is to write appellate briefs in English, rather than my profession's indigenous language, legalese.

Beyond that, it's important to keep an appellate brief interesting. As a Third Circuit judge recently observed at a lunch meeting I attended, "I learned early on that the briefs don't read themselves." Better to be the author of a brief that captures the judge's or law clerk's attention than the author of a brief that leaves the reader cross-eyed or makes no impression whatsoever.

Although I normally abide by the suggestion "eschew cliches," I'm wrestling over whether to leave in the reply brief the following text:
Both the trial court, in its ruling, and [the opposing party], in its Brief for Appellee, advance a parade of horribles that would supposedly come to pass if [a ruling were issued in my client's favor]. While it may be true that "everybody loves a parade," the hypotheticals that the trial court and [my adversary] have put forth to oppose [a ruling in my client's favor] are entirely irrelevant.
Only time will tell whether those two parade-related cliches will survive editing and find themselves in the final version of the reply brief to be filed in court early next week.
Posted at 20:39 by Howard Bashman

Dahlia Lithwick reports on today's fear of asbestos disease oral argument at the U.S. Supreme Court: Also mentioned in her essay posted this evening on Slate -- "the Supreme Court's own Harlem Globetrotters"; a rough day at the podium for Carter Phillips; and Dahlia's fear that she'll "die never having hugged Justice Souter and of running out of conditioner."
Posted at 20:07 by Howard Bashman

"GOP looks to new Senate majority to put more conservatives in judgeships": The Associated Press offers this report.
Posted at 17:16 by Howard Bashman

Coverage of today's two U.S. Supreme Court oral arguments: Gina Holland of The Associated Press has this report, which mentions both arguments, while Reuters reports here only on the fear of asbestos disease case.
Posted at 17:13 by Howard Bashman

Budweiser can't call its beer Guinness, Second Circuit rules: Well, not exactly, although from this non-precedential summary order that the U.S. Court of Appeals for the Second Circuit issued Monday, it's difficult to understand what, if anything, was the subject of the dispute between these two giant alcoholic beverage conglomerates. But, thanks to the wonders of the World Wide Web, I have learned that the dispute involved whether Budweiser could market a beer bearing the name "Red Label From Budweiser" without infringing on the brand of scotch whiskey named "Johnnie Walker Red Label," which the Guinness group markets. You can access the district court's decision preliminarily enjoining Budweiser "from marketing beer under a name including the words 'Red Label,'" at this link. Thanks to a certain someone, already thanked below once before today, for having brought this ruling to my attention this morning.
Posted at 16:29 by Howard Bashman

Big suits: A colleague from down the hall (but, no, not the "colleague down the hall") just stopped by to show me that I'm also listed in the November 2002 edition of The American Lawyer in its "Big Suits" feature, together with a bunch of colleagues based in Harrisburg. While that feature may sound like it focuses on excessively overweight attorneys, it in fact describes lawsuits that the editors have deemed important and the lawyers who are fortunate to be working on them.
Posted at 15:57 by Howard Bashman

Or maybe it's just a matter of bad reception on the Al Jazeera channel: The federal district judge presiding over the criminal prosecution against accused twentieth hijacker Zacarias Moussaoui entered an order yesterday that begins:
The defendant, pro se, has filed a motion (Docket #658) in which he complains that the United States produced a blank videotape of the Al Jazeera interview of Ramzi Binalshibh. He also requests a copy of a “good will” tape prepared by another individual.

The United States’ provision of a blank videotape is an inexcusable error which must be corrected immediately. For this reason, the defendant’s motion is GRANTED as to his request for a new copy of the Binalshibh tape; and it is hereby

ORDERED that the United States forthwith provide the defendant with a copy of the Binalshibh tape.
Which makes me wonder whether CNN has broadcast this interview yet.
Posted at 15:46 by Howard Bashman

The question presented in the other Ninth Circuit case in which en banc review was granted today: A reliable source located in what could someday be known as the U.S. Court of Appeals for the Twelfth Circuit emails to say:
The second case in which en banc rehearing was granted today is United States v. Cabaccang, 2001 WL 760553. The issue in the case is whether transporting illegal drugs from one point in the United States to another, but over international waters, is "importation" of drugs into the United States for purposes of conviction and sentencing pursuant to 21 U.S.C. sec. 952. Older Ninth Circuit precedent holds that it clearly is, but rehearing has now been granted on that issue. This matters because the penalties for importation are much higher than the penalties for domestic trafficking of similar quantities.
In other words, if you possess illegal drugs somewhere within the USA and then transport the drugs across international waters to another location within the USA, can you then be convicted for having "imported" the drugs into the USA. That's a very, very interesting question.
Posted at 15:20 by Howard Bashman

British Taliban suspect held at Gitmo loses appeal to force United Kingdom to intervene on his behalf: BBC News is today reporting:
A British Taleban suspect being held without trial by the United States has lost a legal bid to force the British Government to intervene on his behalf.

The Court of Appeal rejected claims that diplomatic representations should be made about the conditions under which 22-year-old Feroz Abbasi is being held.

But the court said it found his detention without charge or access to courts, at a US military base in Guantanamo Bay, Cuba, "legally objectionable."
You can access the complete article at this link. (Thanks to a reader who is currently clerking for a judge on the U.S. Court of Appeals for the First Circuit for sending along word of this article.)
Posted at 14:50 by Howard Bashman

Ninth Circuit today grants rehearing en banc in two cases: The U.S. Court of Appeals for the Ninth Circuit today granted rehearing en banc in two separate appeals (see orders here and here). The first case presents the question "whether state child services workers involved in ongoing state court dependency proceedings enjoy absolute immunity for the placement of a child in a foster home," and you can access the now vacated panel opinion at this link. The second appeal arises from a federal criminal prosecution that the United States government brought on Guam. In this second appeal, the Ninth Circuit's panel ruling was by means of a non-precedential memorandum opinion, and those aren't made available to the public on the Ninth Circuit's Web site. Anyone who is familiar with the issue or issues presented in this second en banc case granted today is invited to email along that information.
Posted at 14:01 by Howard Bashman

Not nit-picky in the least: Law Professor Bradley Joondeph of the Santa Clara University School of Law has emailed in connection with the recent posts involving speedy U.S. Supreme Court rulings. Although he says that his email raises "a nit-picky point," I beg to disagree. Joondeph writes that the time between oral argument and opinion is irrelevant; instead, we should focus on the time between opinion assignment and opinion announcement. Indeed, because Chief Justice Rehnquist assigned the Syngenta opinion to himself, he could have started drafting that opinion even before the official opinion assignment occurred (this is my observation, not Joondeph's). As I seem to recall, argued cases are typically conferenced twice each week by the Court, and Joondeph says that "All opinions from the same sitting are assigned to the writing Justices at the same time, usually the Monday morning following the sitting (sometimes the preceding Friday afternoon). Thus, the opinions handed down on Tuesday were equally quick, at least if we are measuring the speed of the Justices' work." Excellent point!
Posted at 13:12 by Howard Bashman

Roy Englert answers the call: Friend of "How Appealing" and appellate advocate par excellence Roy T. Englert, Jr. has kindly sent along an email responding to an inquiry posted here yesterday:
Hafer v. Melo, 502 U.S. 21 (1991), was -- exactly like Syngenta v. Henson -- argued October 15 and decided November 5. The speed demon in that case was Justice O'Connor. So Syngenta at best tied a prior record rather than setting a new record. Someone else may come up with a non-emergency, non-reargued, non-DIGged, non-equally-divided-Court case that was decided even faster. In particular, someone may have rushed something out at the end of the Term to get it off his or her desk.

Also, if you go back enough years, decisions this quick were once common.
Thanks, Roy, for sending that along. If anyone has the time and interest to "go back enough years" to find a qualifying decision announced in fewer than twenty-one days from the date of oral argument, that aspect of this competition remains open.
Posted at 11:35 by Howard Bashman

Republicans win open Minnesota U.S. Senate seat, CNN is now reporting: Between this result and the result in Missouri, it appears that the Republicans will have solid control of the Senate not just starting in January 2003 but now, in the fall lame-duck session.
Posted at 06:40 by Howard Bashman

"How Appealing" at six months: Six months ago today, this blog came into existence. Since then, it has developed the most wonderful readers that any Web log could ever hope to have. Without the emails that I receive each day from readers -- pointing out new and interesting rulings, articles, and other developments, and sending along incredibly kind words of encouragement -- what you see on these pages would be much less interesting or would cease to exist.

On one level, the readership that "How Appealing" has established over the past six months has greatly exceeded my expectations. On another level, however, I am not in the least bit surprised that so many others share the same interests as I do. During the first week of its existence, "How Appealing" received just slightly more than 800 page visits. This past week this blog has received more than 42,000 page visits. And the benefits that have flowed from this increased readership -- an essay published by Slate, a recent appearance in The New York Times, serving as a regular source to reporters who seek comments on significant appellate court rulings, and being mentioned in the Japanese edition of, as well as getting to know so many of the interesting people who regularly cover the nation's courts, from the highest to the lowest -- have been wonderful. None of that would have happened without the amazing support I have received from you, the reader.

So, on this blog's six-month anniversary, as this blog's hit counter stands above 227,500, I thank you for your enthusiastic interest in "How Appealing," and I join you in hoping that this blog's best days are yet to come. (For those clamoring for some greatest hits, you can access my "No tank you" post here, and you can access my "Don't hate the player, hate the game" post here. If you have a fondness for the past, this blog's archives are always open (Blog*Spot willing!).
Posted at 06:40 by Howard Bashman

GOP regains control of the U.S. Senate: See reports here from The New York Times, here from The Washington Post, and here from The Associated Press. In what may prove to be the understatement of the day, let me observe that this development may increase the chances that President Bush's pending and future federal judicial nominees will receive Senate confirmation.
Posted at 06:32 by Howard Bashman

South Dakota voters defeat proposed constitutional amendment that would have expressly allowed jury nullification in criminal cases: The Associated Press is reporting this morning:
SIOUX FALLS, S.D. - South Dakota voters on Tuesday soundly defeated a ballot measure on the rights of criminal defendants.

With 88 percent of the precincts reporting, Constitutional Amendment A had 61,721 votes in favor, or 21 percent, and 226,387 votes against it, or 79 percent.

The proposal said criminal defendants may argue about the merits, validity and application of laws under which they are charged.
You can access my prior coverage of this defeated South Dakota amendment, and the amendment's text, here.
Posted at 06:26 by Howard Bashman

In Wednesday's newspapers: U.S. Supreme Court correspondents Linda Greenhouse of The New York Times and Charles Lane of The Washington Post report here and here, respectively, on yesterday's oral arguments in the three-strikes cases. Meanwhile, The Christian Science Monitor previews here today's Supreme Court oral argument in a fear of asbestos disease case.
Posted at 00:19 by Howard Bashman

Tuesday, November 05, 2002
Now available online at Tony Mauro reports here on today's U.S. Supreme Court oral arguments in the three strikes cases. According to Mauro's report, the University of Michigan Law School racial preferences in admission case happened, unexpectedly, to be mentioned in one of the three-strikes oral arguments:
Chemerinsky, working from the lectern without the aid of notes, repeatedly relied on the Supreme Court's line of cases on disproportional sentences, especially Justice Anthony Kennedy's concurring opinion in Harmelin v. Michigan, a 1991 case in which a divided Court upheld a life sentence for possession of 650 grams of cocaine. Kennedy's concurrence, joined by Justices O'Connor and David Souter, articulated the "grossly disproportionate" standard. But Rehnquist and other justices argued that the Kennedy concurrence was not binding and that other, less-favorable precedents took precedence. Kennedy's concurrence is "a highly controverted position," Scalia said as Kennedy stared into the crowd, looking uncomfortable. "It's not an opinion of the Court, it's an opinion of Justice Kennedy."

But Chemerinsky held to it, prompting Scalia to draw an analogy with a more celebrated case. Would Chemerinsky also argue, Scalia asked incredulously, that Justice Lewis Powell's solitary opinion in the 1978 Regents of the University of California v. Bakke affirmative action case was "law of the land"?

Many courts and scholars believe exactly that, but Chemerinsky sidestepped the chance to get into what was, for him, an unwanted and extraneous controversy.

"Soon enough," Chemerinsky replied, the Court would have a chance to pronounce its own view on Scalia's question. He was referring to litigation pending before the Supreme Court over the University of Michigan's affirmative action program, in which the meaning of Bakke and the Powell writing is a key issue.
David Horrigan of The National Law Journal reports here on a cert. petition that will be filed soon in a case in which "Christopher Todd Brown will try to get the U.S. Supreme Court to grant certiorari in an effort to establish what he considers a basic constitutional right -- the right to write 'F--k You' to university administrators in his master's thesis." You can access my coverage of the Ninth Circuit's ruling against Brown in August 2002 at this link.

The November 2002 edition of The American Lawyer has an article about lawyers with blogs, and you can access that article and several others here. The lead article, which features an interview with and photo of Denise Howell of the "Bag and Baggage" blog, also mentions other law bloggers, including me ("Howard Bashman's blog, which focuses on federal appellate law and has a loyal following"), as does this related article by lawyer-blogger Rick Klau.
Posted at 23:07 by Howard Bashman

U.S. Supreme Court round-up for Tuesday, November 5, 2002: The Supreme Court of the United States today issued its first two signed opinions in argued cases of the October 2002 Term, proving again that the easiest cases are the first to be decided. For those who tally such details, Justice John Paul Stevens remains on track to issue an opinion in every argued case that the Court decides on the merits this Term. And now, on to the details.

1. Syngenta Crop Protection, Inc. v. Henson, No. 01-757 (Nov. 5, 2002): Chief Justice William H. Rehnquist had the pleasure of delivering the six-page, unanimous, no-subsection opinion in this case, which was argued just twenty-one days ago. An individual by the name of Hurley Henson filed suit in a Louisiana state court alleging tort claims involving an insecticide manufactured by Syngenta's predecessor. Thereafter, Henson intervened in a similar suit pending in an Alabama federal court, and the Louisiana state court stayed Henson's suit. When the Alabama federal court suit settled, Henson agreed to dismiss all of the claims that he had asserted in the Louisiana state court suit. For whatever reason, however, Henson's lawyer told the Louisiana state court that the Alabama settlement only required the dismissal of some, not all, of the state court claims. Based on that representation, the Louisiana state court allowed some of Henson's claims against Syngenta to proceed. Syngenta's lawyer, who didn't bother to attend the Louisiana state court status conference at which Henson's lawyer was supposed to dismiss all claims, undoubtedly wasn't very happy to learn that some of Henson's state court claims hadn't been dismissed. But what was Syngenta's lawyer to do?

Syngenta decided to remove Henson's state court case to a federal district court in Louisiana, which then transferred the case to the same Alabama federal district court that had ordered Henson to dismiss all of his Louisiana state court claims. There was only one minor -- yet pesky -- problem. Henson's state court suit against Syngenta's predecessor didn't qualify for removal because there was no basis on which a federal district court could exercise federal subject matter jurisdiction over the case. The Alabama federal district court, however, ruled that the All Writs Act allowed that federal court to exercise subject matter jurisdiction in order to enforce the settlement of the earlier federal district court case. The Alabama federal district court thus ordered the dismissal of Henson's remaining claims, which had been removed from Louisiana state court, and imposed sanctions on Henson's attorney. Unfortunately for the Alabama federal district court, the All Writs Act is not a grant of federal subject matter jurisdiction. Recognizing this, the U.S. Court of Appeals for the Eleventh Circuit reversed the Alabama federal district court's dismissal and ordered that the remaining claims that had been pending against Syngenta be sent back to Louisiana state court.

Today the U.S. Supreme Court unanimously affirmed. While the Alabama federal court couldn't directly dismiss the Louisiana state court claims, it could sanction the heck out of Henson and his lawyer to ensure that they dismiss the remaining state court claims. In a separate concurring opinion, Justice John Paul Stevens wrote that he would have gone further to reverse the Court's ruling in United States v. New York Telephone Co. (1977) for the reasons set forth in his dissenting opinion in that nearly twenty-five-year-old case. The rest of the Court's unwillingness to overrule New York Telephone was good news for Deputy Solicitor General Lawrence G. Wallace, who argued and won that case, and who will be retiring from his post in the Solicitor General's Office in January 2003.

2. Yellow Transportation, Inc. v. Michigan, No. 01-270 (Nov. 5, 2002): This case involves trucking, yet fails to mention either The Grateful Dead or the do-dah man. The petitioner in this case is Yellow Transportation, Inc., whose trucks and logo -- for reasons I don't understand -- are orange. And the case involves the validity of regulations issued by the Interstate Commerce Commission, which has been defunct since December 1995. Justice Sandra Day O'Connor, who had the bad fortune to receive the opinion assignment here, was so certain that no one would ever have reason to look at this opinion that she actually included a footnote! As a throw-back to the era when U.S. Supreme Court footnotes were signified by doohickeys (you know, those symbols that included daggers, sections symbols, caret symbols, etc.) rather than numbers, the Court continues to use an asterisk to signify the footnote in opinions containing just one.

The holding in this case, for the one or two readers who might actually be interested upon hearing it, is that States are required to charge motor carrier registration fees at the levels actually collected or charged pursuant to reciprocity agreements in place as of November 15, 1991. If you don't understand my statement of the holding, you should consult Justice O'Connor's opinion to see whether her explanation makes any more sense. Justice Stevens filed a separate opinion concurring in the judgment, but Justice Stevens' separate opinion in this case does not appear to call into question any of Deputy Solicitor General Wallace's previous victories. In the interest of full disclosure, however, Wallace was among those who signed the Solicitor General's amicus brief in this case.

* * * * *

And that concludes this blog's first U.S. Supreme Court round-up of the October 2002 Term.
Posted at 21:00 by Howard Bashman

"High Court Declines Execution Halt": The Associated Press reports here tonight that "The Supreme Court on Tuesday refused to halt the execution of a Texas death row inmate whose lawyers argue was mentally ill and unable to assist in his defense at his murder trial."
Posted at 20:58 by Howard Bashman

On writing: The New Yorker magazine film critic Anthony Lane, who is this week's diarist at Slate, writes here:
There is a myth at large in the general population, easily quashable yet somehow allowed to persist, that writing comes smoothly, like gas from a pump, or at least unbidden, like tears. This is bull. No decent prose is ever dashed off, especially that which appears to be effortlessly dashing. Just as Buster Keaton and Douglas Fairbanks had to rehearse their leaps and pratfalls, so grace on the page has to be earned with infinite sweat.
Posted at 16:44 by Howard Bashman

A "spit take" in honor of Yaser Esam Hamdi: According to today's installment of "The Bleat," this editorial contained in yesterday's edition of The Minneapolis Star Tribune critical of the government's detention of accused enemy combatant and American Taliban Yaser Esam Hamdi caused James Lileks to spew his breakfast all over the newspaper. Just what the newspaper deserved, some might say.
Posted at 16:22 by Howard Bashman

You can't make this stuff up! The Weekly World News must pay a photographer nearly $26,000 for turning his photograph of President Clinton into a retouched "Alien Backs Clinton!" photograph, the U.S. Court of Appeals for the First Circuit has ruled in a decision that is dated October 30, 2002 but was posted to that court's Web site today.
Posted at 14:55 by Howard Bashman

Where in Arizona are the endangered Cactus Ferruginous Pygmy-Owls located? The Secretary of the Interior must reveal that information under the Freedom of Information Act, the U.S. Court of Appeals for the D.C. Circuit ruled today in a decision you can access here.
Posted at 14:47 by Howard Bashman

That plus sixty cents will buy you a candy bar at the store located in my office building's lobby: On the eve of this blog's six-month anniversary, the hit counter for "How Appealing" reveals that this blog has received more than 100,000 page visits in just the last month alone. Wow!
Posted at 14:13 by Howard Bashman

Three strikes and you're in, for a really long time: Gina Holland of The Associated Press reports here on this morning's U.S. Supreme Court oral arguments in the three strikes cases. A Justice who formerly served on the U.S. Sentencing Commission is quoted in the article as stating, "We cannot convert this court into a sentencing commission."
Posted at 14:02 by Howard Bashman

Swift Justices: The U.S. Supreme Court's ruling today in Syngenta Crop Protection, Inc. v. Henson issued just twenty-one days after the case was argued. A reader who clerked at the Court not too long ago has emailed to ask, "Is the three weeks from argument to decision a record in a non-emergency case?" Interesting question.

To further fine tune the question, let me specify that the question pertains only to decisions of the U.S. Supreme Court, only to argued cases, and only to cases in which that Court issued an opinion resolving the question(s) presented (thus eliminating from consideration cases in which cert. was dismissed as improvidently granted, cases dismissed for lack of proper U.S. Supreme Court jurisdiction, and cases in which the judgment below was affirmed by an equally divided Court). If you are aware of an opinion deciding a non-emergency case that the U.S. Supreme Court issued in fewer than twenty-one days after oral argument, email along the case's name and its citation.
Posted at 13:28 by Howard Bashman

You heard it here first: The lesson from this opinion that the U.S. Court of Appeals for the Seventh Circuit issued today: don't become a non-intoxicated drunk driving suspect in the Village of Winnetka, Illinois.
Posted at 13:26 by Howard Bashman

Divided Sixth Circuit panel addresses death penalty and harmless error review: A divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit today resolved an interesting death penalty habeas corpus appeal in a case that arose from Ohio's state court system. As today's opinion explains, "The primary question is whether the State violated the Eighth Amendment, as well as state law, when it failed to either charge Esparza in the indictment with the aggravated circumstance for which the death penalty was imposed or instruct the jury on the aggravating circumstance and have the jury reach a verdict on the existence of the aggravating circumstance." Instead, "the state courts, on their own initiative, after the jury trial and verdict, found the petitioner Esparza guilty of the aggravating circumstance that made him eligible for the death penalty" and imposed a sentence of death. The Sixth Circuit majority affirmed the federal district court's grant of habeas relief, which set aside petitioner's death sentence. The dissenting judge argued that the majority erred in failing to apply a "harmless error" analysis, and that such an analysis showed that the error complained of was in fact harmless.
Posted at 11:53 by Howard Bashman

Two U.S. Supreme Court opinions in argued cases have issued this morning: You can access the rulings here and here. I'll provide my summaries of these rulings this evening.
Posted at 10:53 by Howard Bashman

U.S. Supreme Court transcripts are now online for oral arguments held in October 2002: You can access the transcripts at this link. Two days ago "How Appealing" asked when these transcripts would appear online, and today they are made available. What a happy coincidence.
Posted at 10:36 by Howard Bashman

"City wins court test with gun industry": Today's issue of The Chicago Tribune offers this report.
Posted at 10:32 by Howard Bashman

Here's the order granting cert. yesterday in the forced medication case: You can access the U.S. Supreme Court's order, issued separately yesterday as a "miscellaneous order," at this link. The order specifies the question presented as: "Whether the Court of Appeals erred in rejecting petitioner's argument that allowing the government to administer antipsychotic medication against his will solely to render him competent to stand trial for non-violent offenses would violate his rights under the First, Fifth, and Sixth Amendments."
Posted at 10:26 by Howard Bashman

Group seeks stay of Seventh Circuit's decision allowing Indiana's abortion counseling statute to take effect: The Associated Press has this report. My previous coverage of this decision is available here, offering both a link to the Seventh Circuit's ruling and a definition of the phrase "a third dimension of harrumph."

Update: It's worth noting that on October 28, 2002, the Seventh Circuit denied the losing parties' petition for rehearing en banc in this case by an evenly divided vote of 5-5, with one judge recused. Circuit Judges Richard A. Posner, Ilana Diamond Rovner, Diane P. Wood, Terence T. Evans, and Ann Claire Williams voted to grant rehearing. Chief Judge Joel M. Flaum and Circuit Judges John L. Coffey, Frank H. Easterbrook, Daniel A. Manion, and Michael S. Kanne did not vote in favor of rehearing. Circuit Judge Kenneth F. Ripple was recused.
Posted at 07:20 by Howard Bashman

In Tuesday's LATimes and USA Today: In Tuesday's edition of The Los Angeles Times, reporters David G. Savage and Henry Weinstein have an article entitled "3 Rulings by 9th Circuit Reversed." In USA Today, U.S. Supreme Court correspondent Joan Biskupic has two articles: "High court takes up anti-crime efforts; Cases deal with '3 strikes' and appeals limits" (access here) and "Justices will hear case on charity telemarketing" (access here).
Posted at 07:11 by Howard Bashman

In Tuesday's newspapers: Both Linda Greenhouse of The New York Times and Charles Lane of The Washington Post summarize yesterday's happenings at the U.S. Supreme Court (see here and here, respectively). Adam Liptak of The NYTimes has an excellent article entitled "Court Scolds Federal Judge for Attack" about yesterday's en banc Eighth Circuit ruling. I tend to agree with both experts quoted in the article. You can access the complete text of the Eight Circuit's en banc opinion issued yesterday at this link. The NYTimes today also contains an editorial entitled "'Three Strikes' Strikes Out." The Christian Science Monitor, meanwhile, contains an article reporting on the three strikes cases before the Supreme Court for review. And, the Monitor also contains an editorial endorsing President Bush's recently unveiled plan to address the judicial confirmation logjam.
Posted at 00:22 by Howard Bashman

Monday, November 04, 2002
Today's other news from the U.S. Supreme Court: "How Appealing" has already provided so much coverage of what the U.S. Supreme Court has done today that it's difficult to believe there's still more to discuss, but there is. For instance, the Court heard two oral arguments today. Tony Mauro of writes here about today's death penalty oral argument in a case from, of all places, Pennsylvania. The Associated Press also has coverage of that argument. The Supreme Court's other oral argument today involved the always fascinating subject of traffic data, The AP reports here. Hey, almost anything beats telecommunication regulation and FERC rate-setting! Finally, the Court granted review today in a case involving Agent Orange. The case presents the question of when, if ever, claimants should be allowed to bypass previous class action settlements, The AP reports here.
Posted at 23:17 by Howard Bashman

Your most humble blogger, quoted tomorrow in article about today's three summary reversals of the Ninth Circuit: Jason Hoppin of The Recorder, California's affiliate, has a very interesting article that is being published tomorrow entitled "High Court Reverses 9th Circuit Three Times in One Day." The article is now available online at this link, and I am quoted in its third paragraph.

Of those three per curiam U.S. Supreme Court rulings, the opinion in the asylum case clearly reads as though it were written by Justice Stephen G. Breyer. No other Justice on the Court uses "And" at the start of sentences as often as Justice Breyer does. It is more difficult to identify the author or authors of the other two per curiam opinions (here and here), but readers are encouraged to send along informed guesses -- with explanations -- via email. If any persuade me, I will happily reprint them here.
Posted at 21:31 by Howard Bashman

See how Law Professor Jack Bogdanski has voted in Oregon: In Oregon, everyone votes by mail. Law Professor Jack Bogdanski, who resides in Oregon, has decided to share with us on his blog how he has voted in that State's election contests, which feature quite a few voter referendums. The choices we voters have in Pennsylvania tomorrow are quite boring by comparison.
Posted at 21:17 by Howard Bashman

Dahlia Lithwick addresses whether tomorrow's elections will ultimately be decided by the U.S. Supreme Court: You can access her answer here, via Slate.
Posted at 16:57 by Howard Bashman

The AP reports cert. was granted this morning in a fifth case: There's only one tiny problem -- no sign of the case appears on the order list that the U.S. Supreme Court issued this morning. You can access The Associated Press's report at this link. According to The AP article, the Court in this fifth case has agreed to decide whether it is constitutional to medicate a mentally ill criminal defendant against his will where the defendant is charged with having committed a non-violent offense and is incompetent to stand trial in the absence of being medicated.
Posted at 16:26 by Howard Bashman

Another case of trees versus animals: The U.S. Court of Appeals for the Ninth Circuit has today ruled that the federal government must stop spraying insecticide over 628,000 acres of national forest lands in Washington and Oregon to kill moths that otherwise would kill Douglas Fir trees until the federal government adequately determines the impact of the insecticide spraying on fish, birds, plants, and other insects in the area. You can access the Ninth Circuit's ruling here.
Posted at 13:43 by Howard Bashman

En banc Eighth Circuit responds to trial judge's most unusual opinion discussing race and its impact on judging: The en banc U.S. Court of Appeals for the Eighth Circuit today has issued the following unanimous per curiam opinion:

We recall the mandate that was issued pursuant to our en banc opinion to review the order entered by the district court pursuant to our en banc remand.

Our en banc decision is reported as Moran v. Clarke, 296 F.3d 638 (8th Cir. 2002) (en banc). In the course of our consideration of the case, we reviewed a motion to recuse that the district court had denied, see id. at 648-49, and we remanded "to the district court with the suggestion that it revisit and more thoroughly consider and respond to [the] recusal request." Id. at 649. We also expressed our "utmost faith in the district court's ability to rule impartially" on the recusal motion. Id. On remand, the district court did as we requested, denied the recusal motion, but nevertheless recused. See Moran v. Clarke, 213 F. Supp. 2d 1067 (E.D. Mo. 2002). We do not question the district court's decision to recuse on remand. We focus instead solely on certain remarks and assertions the district court made in the course of its opinion.

We note initially that the district court recognizes that "[i]t is abundantly clear that the undersigned should have fully addressed his relationship with Clarke on the record in response to Moran's recusal request." Id. at 1072. The district court also recognized that "[i]t is obvious that 'all the relevant facts' were not known in this case." Id.

There can be no doubt that it was the responsibility of the district court to set out "all the relevant facts" when it denied the recusal motion in the first place. The initial failure of the district court to fully address the extent of his relationship with Clarke and to make known on the record all of the relevant facts that would illuminate the recusal issue left this court with a record on appeal that sorely lacked the judge's explanation and rationale for his denial of the recusal motion. It was for that reason alone, and for none other, that we asked the district court to revisit and more thoroughly respond to the recusal request.

Indeed, if the district court had initially made the same factual record concerning the lack of a basis for recusal that it now recites in its order after remand, we are certain that its denial of the recusal motion would have been summarily affirmed and no remand ordered.

However, instead of recognizing that this court was giving the district court the opportunity on remand to make the record it should have made, the district court instead concluded, with absolutely no basis at all to do so, that the decision to remand the recusal issue for further consideration was based on his race, the race and sex of the judges of this court who joined the majority opinion, and the race of the plaintiff. The district court gratuitously describes the judges in the majority as "a majority of six white men" and the judges who dissented as "two white men, one white woman, and an African-American man." While the observations are accurate, they are wholly irrelevant and, in our view, were calculated to impugn the integrity of this court in the eyes of the public. The district court continued in the same vein later in its opinion when it wrote that it was left with the impression that "had I been white, or had [the] plaintiff . . . been African-American . . . the majority's opinion on the recusal issue would have been significantly different." Id. at 1075. We disagree. Every judge on this court has, like the district court itself, taken an oath to administer the law impartially, and our duty to decide cases without regard to consideration of race, color, or creed is fundamental and inviolable. Discharging our judicial duties in a way that denies no human being the equal protection of the laws is an absolute bedrock principle from which we cannot, we do not, we have not, and we will not deviate in the slightest way.

The people of the United States must have confidence that their federal judiciary operates in an absolutely racially neutral way. After all, it is in the federal courts where victims of racial discrimination often seek and find relief. The district court's factually unfounded innuendo that this court decided the recusal motion on the basis of race undermines the public's confidence in its federal courts, and runs directly contrary to the district court's own solemn obligation, pursuant to Canons 1 and 2 of the Code of Conduct for United States Judges, to not only uphold the integrity of the judiciary, but also to act always in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

We believe that what was said by this court in Reserve Mining Co. v. Lord, 529 F.2d 181 (8th Cir. 1976) (per curiam), is equally applicable here. As we said on that occasion:
It is one thing for a district judge to disagree on a legal basis with a judgment of this court. It is quite another to openly challenge the court's ruling and attempt to discredit the integrity of the judgment in the eyes of the public.
Id. at 188.

A proper respect for its obligations to the public and to the judiciary should have counseled the district court to have put aside its baseless, personal, racially oriented speculations, and to have terminated its published recusal order at the end of Part II, instead of engaging in a personal polemic.

The Chief Judge of the United States District Court for the Eastern District of Missouri has made a request by letter for the assignment of a district judge from outside the Eastern District to preside over this case on remand, the reason for the request being that because one of the defendants in the case is now the United States Marshal for the Eastern District of Missouri it would be inappropriate for any judge of that district to preside over the case. Pursuant to this request made by the Chief Judge of the United States District Court for the Eastern District of Missouri, the Chief Judge of this court has selected and designated by a random drawing from all of the active district judges in this circuit the Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa, to preside over this case in the Eastern District of Missouri. This case is remanded to the United States District Court for the Eastern District of Missouri for further proceedings before Judge Pratt consistent with our original en banc decision, which remains unchanged.

Mandate shall issue forthwith.
You can access the trial court opinion to which today's Eighth Circuit decision responds at this link. You can access my original post on the trial judge's most unusual opinion at this link.
Posted at 11:52 by Howard Bashman

"Immigrant Asylum Case Overturned": AP reporter Gina Holland has this report on one of the three U.S. Supreme Court per curiam opinions that issued today. Update: And here's The AP's report on the other two per curiam opinions issued today.
Posted at 10:51 by Howard Bashman

The AP reports on this morning's U.S. Supreme Court orders: "Mich. Redistricting Plan Upheld" (a report on this morning's summary affirmance); "High Court to Hear Agent Orange Case" (access article here); "Court Rejects Canada Cigarette Suit" (cert. denied, article here); and "Court Rules in Pepper Spray Case" (another cert. denied, article here).
Posted at 10:42 by Howard Bashman

Ouch!!!: The U.S. Supreme Court this morning summarily reversed the U.S. Court of Appeals for the Ninth Circuit three separate times. You can access the Supreme Court's per curiam opinions here, here, and here.
Posted at 10:31 by Howard Bashman

This morning's U.S. Supreme Court order list: You can access it here, via Cornell's Legal Information Institute. Cert. granted in four cases (one involved two petitions, which the Court consolidated), and the views of the Solicitor General were requested in a fifth case. The Court also summarily affirmed in a case in which the Court had mandatory appellate jurisdiction. Update: The Court's official order list is now available online here.
Posted at 10:23 by Howard Bashman

"Court to Review Telemarketing Case": Gina Holland of The Associated Press has this report on one of the cases that the U.S. Supreme Court agreed to review this morning.
Posted at 10:15 by Howard Bashman

"Is There Freedom To Associate With Terrorists?" Stuart Taylor Jr. writes in support of the portion of the Antiterrorism and Effective Death Penalty Act of 1996 that makes it a crime to "knowingly provide material support or resources to a foreign terrorist organization." You can access his essay, published in the National Journal last week, at this link.
Posted at 08:32 by Howard Bashman

In Monday's newspapers: In The New York Times, Linda Greenhouse has an article entitled "States' Listings of Sex Offenders Raise a Tangle of Legal Issues." Charles Lane of The Washington Post reports here that the U.S. Supreme Court appears to be choosing cases more carefully than ever. In the article, Carter G. Phillips and Thomas C. Goldstein disagree over one possible explanation for the Court's current selectivity. Elsewhere in The Post, this article focuses on a law the State of Texas enacted to ensure the representation of racial minorities in state universities after the Fifth Circuit held that the U.S. Constitution prohibits taking race into account in the admissions process. Finally, The Post contains an article bearing the headline "Sniper Trial Court to Be Named Soon."
Posted at 00:33 by Howard Bashman

Sunday, November 03, 2002
My analysis of the University of Michigan Law School's brief in opposition to U.S. Supreme Court review in the racial preferences in admissions case: First, some background. In May 2002, the en banc U.S. Court of Appeals for the Sixth Circuit ruled 5-4, in a decision you can access here, that the University of Michigan Law School's practice of taking into account applicants' race in deciding whether to offer admission to the school is constitutional. In so ruling, the Sixth Circuit reaches a result in conflict with recent rulings of both the Fifth and Eleventh Circuits. The losing plaintiff -- a rejected female white applicant who, the law school agrees, would have gained admission had she been black -- has now sought U.S. Supreme Court review of the Sixth Circuit's ruling, and you can access her cert. petition here. In response, the law school has filed a brief in opposition urging the Supreme Court to deny review.

The law school's brief in opposition does a masterful job of explaining why the Supreme Court should affirm the Sixth Circuit's ruling, which allows public universities to consider race in deciding whom to admit as students. I will even go so far as to say that the law school's brief in opposition makes a more plausible case than I imagined could be made for why U.S. Supreme Court review should be denied. That said, I continue to believe that U.S. Supreme Court review of the Sixth Circuit's ruling is a near certainty. First, a true circuit split exists on whether public universities may lawfully consider race in deciding which students to admit. Second, the U.S. Supreme Court's ruling in the Bakke case, which many view as allowing for consideration of race in university admissions, lacks a majority opinion. Finally, the Supreme Court's more recent racial preference rulings cast serious doubt on Bakke's continued validity. For all of these reasons, it would be shocking if the Supreme Court denies review in the University of Michigan Law School case.

My prediction on the merits, if review is granted, is that the Supreme Court will reverse the Sixth Circuit's ruling by a vote of 5-4 and will hold that race cannot be used as a factor in deciding which students to admit. A reporter who covers the U.S. Supreme Court for a major media outlet disagrees with me, however, and that reporter predicts that the Sixth Circuit will be affirmed by a vote of 6-3 or 5-4. If review is granted, it will be interesting to see which one of us is right.
Posted at 23:22 by Howard Bashman

Deputy Solicitor General Lawrence G. Wallace to retire in January 2003; he has delivered more U.S. Supreme Court oral arguments than anyone else alive: Tony Mauro, in tomorrow's issue of The Legal Times, reports that Deputy Solicitor General Lawrence G. Wallace has announced he will be retiring from his post in January 2003 after having worked nearly thirty-five years in the Solicitor General's Office. Mauro writes, "Wallace has argued before the Court 156 times, in cases big and small. That puts him ahead of John Davis, who appeared 140 times in the last century, but still well behind Daniel Webster, who argued 249 times." Indeed, according to the article, Wallace's 156 oral arguments at the U.S. Supreme Court place him ahead of anyone else now alive in sheer number of appearances at the highest podium in the land. Wallace's "style" of argument, however, sometimes was not precisely what the Justices had in mind. As this article published on explains, when Wallace was arguing the case of Solid Waste Agency of No. Cook Cty. v. Army Corps of Engineers, Chief Justice Rehnquist admonished, "Mr. Wallace, when a justice is asking you a question, I suggest that you remain quiet until he finishes, if that isn't too much trouble." (See transcript at pages 25-26). Mauro's article fails to mention whether Wallace's morning coat, upon retirement, will be donated to The Supreme Court Historical Society.
Posted at 21:51 by Howard Bashman

The University of Kansas School of Law and its amazing U.S. Supreme Court connections: I inadvertently came across this page tonight on The University of Kansas School of Law's Web site. Among the many interesting things found on the page in question is an interview with a woman who clerked during the 2000 Term for U.S. Supreme Court Justice Clarence Thomas (scroll down nearly two-thirds of the page to see the interview). Here's a sampling of the interview:
Q. What is he like?

A. The Justice is a "real guy" and yet an intellectual. As he would say, he's a real American -- he likes football and NASCAR. He also is a true people person. The Justice knew everyone who worked for the Court and when we went to lunch at the Senate Cafeteria it seemed as if he knew the name of every cafeteria worker and police officer we met along the way. At the same time, he has a wealth of knowledge and a love for history that he frequently shared with us.
The former law clerk to Justice Thomas also has a few words to say in the interview about clerking during the Term in which the Court decided Bush v. Gore.
Posted at 21:26 by Howard Bashman

Intermediate Florida appellate court joins overwhelming majority of federal appellate courts in holding Title II of ADA inapplicable to States: The Third District Court of Appeal of Florida issued a ruling last week in which that court joined with the overwhelming majority of federal appellate courts in holding that Title II of the Americans with Disabilities Act fails lawfully to abrogate the States' sovereign immunity from suit. For reasons I previously explained here, the U.S. Supreme Court is likely to grant review soon in a case presenting this issue. Thanks to Law Professor Michael R. Masinter -- who has the pleasure of teaching law in Fort Lauderdale, Florida -- for sending along news of this ruling via email.
Posted at 20:49 by Howard Bashman

U.S. Supreme Court hears more oral arguments tomorrow, but when will the transcripts appear? The U.S. Supreme Court returns to hear more oral arguments and issue additional orders tomorrow. Meanwhile, the wait continues for the Court to post to its Web site the oral argument transcripts for the October 2002 argument session. According to the Court's Web site, "The Court's current contract Courtroom reporter, Alderson Reporting Company, provides transcripts of oral arguments for posting on this Website within 10-15 days after the transcripts are complete." Thus, the transcripts could magically appear online at the Court's Web site at any moment now, right?
Posted at 18:59 by Howard Bashman

Chief Justice Rehnquist to retire at the end of this Term, Washingtonian magazine reports: Washingtonian magazine is reporting in its November 2002 issue that Chief Justice William H. Rehnquist will retire from the Supreme Court of the United States at the end of the 2002 Term regardless of which political party controls the Senate following Tuesday's elections. You can access the report here. (Thanks to the recent former law clerk to one of the nine Justices who emailed to share news of this article.)
Posted at 15:59 by Howard Bashman

Ten States ask U.S. Supreme Court to review University of Michigan Law School race-based admissions preferences case: The New York Times reported here in its Saturday edition that ten States -- Alabama, Delaware, Nebraska, Oklahoma, Oregon, South Dakota, Texas, Utah, Virginia, and West Virginia -- have filed an amicus brief calling on the U.S. Supreme Court to grant review of the Sixth Circuit's ruling in the University of Michigan Law School race-based admissions preferences case. The NYTimes blurb explains that the ten States "neither supported nor criticized the policies, but said their public university systems needed guidance." Later today, I hope to provide my thoughts here about the law school's recently filed brief opposing Supreme Court review in this matter.
Posted at 09:52 by Howard Bashman

In Sunday's New York Times: Sunday's edition of The New York Times reports here that the U.S. Department of Justice's "fervent support for the death penalty" may cause the State of Virginia to be the first jurisdiction to try the sniper suspects for murder, because both suspects would qualify for the death penalty if convicted there.

The NYTimes reports here on the federal government's latest court filing in the habeas corpus case brought on behalf of accused dirty bomber and enemy combatant Jose Padilla. The Times also ran a related story yesterday, which began: "Despite saying last year that it wanted to move quickly to establish military tribunals for terrorism defendants, the Bush administration is now in no hurry to conduct such proceedings, officials and others say."

Adam Liptak reports here on the Indiana lawyer who was suspended from the practice of law for thirty days for voicing what was found to be improper criticism of an intermediate appellate court's ruling in a petition filed in the Supreme Court of Indiana. Law Professor Jeff Cooper broke the news of this ruling on his blog this past Thursday evening, and I mentioned it here later that night. Liptak is the first to my knowledge to report that one of the Indiana Supreme Court justices who voted to suspend the lawyer may have had a conflict of interest that should have led the justice to recuse from the disciplinary proceeding. The five-justice Indiana Supreme Court voted 3-2 to suspend the lawyer.

Finally, this article reports that atheists may no longer be welcome in the Boy Scouts.
Posted at 00:33 by Howard Bashman

A little criticism is a good thing, right? Law professor and blogger extraordinaire Eugene Volokh has garnered a thoughtful and well-spoken critic (which should come as no surprise, given that the critic is a professional author). Be sure to visit the blog "Soundbitten" by former writer G. Beato, and in particular the two posts that you'll find here and here, which respond to two recent posts (here and here) on Prof. Volokh's site.
Posted at 00:00 by Howard Bashman

Saturday, November 02, 2002
"The Mentor and the Disciple: How Sniper Suspects Bonded": An article bearing this headline appears in Sunday's edition of The New York Times.
Posted at 19:20 by Howard Bashman

Book on U.S. Supreme Court gets Borked: Former D.C. Circuit Judge, and rejected U.S. Supreme Court nominee, Robert H. Bork reviews a new book by Martin Garbus entitled "Courting Disaster: The Supreme Court and the Unmaking of American Law" in the November 2002 issue of The New Criterion magazine. You can access Judge Bork's very entertaining review at this link.
Posted at 19:15 by Howard Bashman

President Bush's radio address today focused on the judicial confirmation imbroglio: You can access the text of the address at this link. Reuters offers this coverage of the President's radio address, and United Press International has this report.
Posted at 16:35 by Howard Bashman

"Microsoft Judge Sold Tech Stocks": The Associated Press offers this report.
Posted at 14:03 by Howard Bashman

The cost of silence: The latest installment of the very funny monthly column written by Associate Justice William W. Bedsworth of the California Court of Appeal, Fourth District, Division 3, in Santa Ana, California, is now available online. It establishes that sometimes the cost of silence is unexpectedly high.

If you are unfamiliar with the dispute that is the subject of Justice Bedsworth's latest column, you can read more about it here (courtesy of The New Yorker), here (courtesy of The Independent), and here (courtesy of You can access previous months' installments of Justice Bedsworth's column online at via this link.
Posted at 11:48 by Howard Bashman

Court accidentally released Microsoft antitrust rulings online before stock market closed yesterday: The Associated Press is reporting:
The landmark decision in the Microsoft antitrust trial was supposed to remain secret until after financial markets closed, but the federal court quietly posted the documents on its Web site nearly 90 minutes before the closing bell.

That discovery by some Internet enthusiasts coincided with a flurry of late-day trading of Microsoft's stock. Its price, which had been falling most of Friday, ticked up just moments after the court placed on its Web site the decision that handed Microsoft a huge victory.

Late-day trading peaked five minutes before markets closed, when $90 million worth of Microsoft shares exchanged hands.

The incident meant tech-savvy Web surfers knew the judge's decision fully one hour before even lawyers for Microsoft and the Justice Department. A glitch in Internet technology – which was at the heart of the antitrust trial – contributed to the early disclosure.

"Somebody wasn't thinking," said David Farber, an Internet expert and former chief technologist for the Federal Communications Commission. "They probably uploaded it just to make sure they wouldn't have any trouble, assuming that no one read it, which was probably naive. They're going to have to be a lot more careful."

U.S. District Judge Colleen Kollar-Kotelly had intended to provide individual, printed copies of her decisions to Microsoft and government lawyers at 4 p.m., then make her decisions available publicly on the court's Web site a half-hour later.

Those plans, outlined in advance to lawyers and journalists, are commonly invoked by judges in major corporate trials and intended to prevent any manipulation of financial markets.

But electronic timestamps for the court's Internet computer indicate that the decisions were published at 2:40 p.m. Friday to a location on its Internet site called "Opinions/2002/Kotelly," which anyone with a Web browser could reach without a password. The rulings, in seven parts, were stored under filenames that included "FinalDecree" and "StateSettlement."

Technicians at the court could have made that location effectively invisible to visitors with a simple change to their computer software.

Microsoft traded at $52.22 in the moments before the court posted its rulings; the price climbed as high as $53.12 at 3:40 p.m. – still 20 minutes before anyone was supposed to know the outcome of the antitrust case – then settled to close at $53.

The first public announcement that the Microsoft decisions were available early came at 3:33 p.m., when an editor at, a Web site for technology experts, published them.

A spokesman, Jamie McCarthy, said an unidentified Slashdot reader sent a tip about the files on the court's Web site at 3:09 p.m. Records showed that 4,026 people viewed the information on Slashdot before 4 p.m., when the judge's decisions were handed to lawyers in Washington.
Stay tuned for the inevitable SEC investigation.
Posted at 11:12 by Howard Bashman

On deck for this weekend: Drafting my monthly appellate column for November 2002, which will be published in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, on Monday, November 11, 2002. November's column will examine whether the Third Circuit or the Sixth Circuit was right concerning whether the public and the press have a First Amendment right of access to INS hearings in so-called "special interest" terrorism-related cases.

You can access an archive containing prior months' installments of my column at this link. You can sign-up for free email delivery of my column in PDF format, on the date of its publication each month, at this link.

And remember, important new changes to the Federal Rules of Appellate Procedure take effect on December 1, 2002. I examined the changes most relevant to lawyers who handle federal appeals in my column published in April 2002, which you can access here.
Posted at 08:32 by Howard Bashman

9,502! This blog's Bravenet hit counter reveals that "How Appealing" yesterday received a total of 9,502 visits, establishing a new one-day record for this blog. And yesterday this blog also had its 200,000th visit since it came into being not quite six months ago. On November 6, 2002, "How Appealing" with celebrate its six-month anniversary, and I will likely have a few words to say then about what a remarkable six months it has been.
Posted at 00:46 by Howard Bashman

Fifth Circuit law clerk seconds that emotion: I received the following email Friday night from someone who is currently clerking for a Fifth Circuit judge based in Louisiana:
I just read the email you recently posted from the New Mexico law clerk.

I am a federal law clerk in [name of Louisiana city omitted], and I, too, am an avid reader of your blog. I believe that I am personally responsible for introducing at least 10 people to your blog, all of whom are as addicted as I am. I feel like an intellectual drug pusher. In fact, I am absolutely incredulous when I discover another clerk or lawyer who has not yet heard of your amazing blog.

Anyway, I want to second your claim: "I've got the geeky, bookish, and wonkish demographic pegged."

Speaking as a geeky, bookish and wonkish fellow, you certainly have me hooked. Keep up the great blogging!
Thanks for taking the time to send along such a very kind message!
Posted at 00:40 by Howard Bashman

Friday, November 01, 2002
Now available online at In this week's edition of his "Courtside" column,'s U.S. Supreme Court correspondent Tony Mauro writes about D.C. Circuit Judge David B. Sentelle's new book, "Judge Dave and the Rainbow People." The book is published by The Green Bag Press, the same folks that produce the wonderfully entertaining Green Bag law journal. Although Mauro's column this week doesn't mention me (when that might happen depends on what the meaning of the word "hence" is), all is forgiven because the column does mention "How Appealing" hero John Elwood:
Green Bag has also been the home for a tongue-in-cheek annual review of the Supreme Court's work by John Elwood, now an assistant to the solicitor general. When he stands before the justices, Elwood will have to hope that the justices have forgotten some of his zingers. Elwood once wrote that Justice David Souter "has the innate caution of a man who was never taken in by this fad they call 'electricity.'" Of Bush v. Gore, Elwood wrote, "the justices were probably hoping they could bring to the presidential election the feeling of goodwill and national consensus that they had brought to the field of abortion."
Despite Elwood's modest protestations to the contrary, his classic "Supreme Court Reports" are far better than anything you will find here. My coverage of the Court at least reflects what's happening there now, however, whereas Elwood's government work has kept him under the cone of silence since June 29, 2001.

Elsewhere on, Mauro with the assistance of Tom Goldstein discusses some likely candidates for U.S. Supreme Court review on the merits. The featured case is a sure thing, because it is an appeal from a three-judge U.S. District Court, and Congress gave the Supreme Court mandatory appellate jurisdiction. Finally, Scott Graham of The Recorder writes here about how Ninth Circuit Judge Alex Kozinski's recent concurrence in the medical marijuana-doctor free speech case may have given medical marijuana the conservative street cred it had been lacking.
Posted at 22:44 by Howard Bashman

Tri-lingual: For those interested in reading about me in Chinese, it's necessary to have Chinese fonts installed on your computer. I already did at work, and now I do at home too. Chinese fonts are not necessary, however, to read about me in Spanish or Portuguese.
Posted at 22:23 by Howard Bashman

Study finds federal district judges sitting by designation on appellate panels are "followers," not "leaders": A reader has emailed to draw my attention to a press release on The Ohio State University's Web site describing a study by a law professor which concluded that "District Court judges are less likely than appellate judges to write signed majority opinions and dissents" when sitting on a federal appellate court by designation. The study focused only on federal appellate rulings in certain cases arising from the National Labor Relations Board, and study focused on only 1,224 federal appellate rulings issued between 1986 and 1993. Thus, it appears that there is much more relevant information available than the study employed in reaching its conclusions.

Because most federal district judges who agree to sit by designation on a federal appellate panel continue to maintain their full district court caseloads, it does not surprise me that a district judge sitting by designation on a federal appellate court is less likely to write an appellate court's majority opinion. Whether judges who sit by designation -- visiting from a district court or from a different federal appellate court -- are less likely to dissent from a federal appellate court's ruling is a question that I have frequently pondered. But I'm not sure that statistics can provide the answer to that question. I haven't seen the study to which the press release refers, so I can't say that I'm not persuaded by it. I am skeptical, however, because there is no statistical formula that can predict how often judges will dissent from federal appellate court rulings, and I'd even go so far as to venture that different federal appellate judges employ different criteria in deciding whether a dissent is worth registering. If this is a topic on which readers of this blog have views that they would like to share, I'd welcome emails on the subject.
Posted at 17:24 by Howard Bashman

"Judge OKs Most Provisions of Antitrust Settlement Between Microsoft, Justice Department": The Associated Press offers this early report on the rulings just released in Washington, DC. You can access the court's ruling in USA v. Microsoft Corp. at this link. You can access the court's ruling in State of New York, et al. v. Microsoft Corp. conditionally approving the company's settlement with various States at this link. You can access the court's ruling that apparently disposes of the balance of the States' suit against Microsoft at this link. (Note: These downloads may be quite slow at best as many try to download these documents at once.)
Posted at 16:30 by Howard Bashman

In case you were wondering for whom James Lileks will be voting in the contest for U.S. Senate in Minnesota: Today's Bleat appears to provide the answer.
Posted at 16:24 by Howard Bashman

Supreme Court of Kansas prohibits monument to unborn babies from remaining on grounds of a public cemetery: You can access the court's ruling at this link. The Associated Press offers this report on the ruling.
Posted at 16:20 by Howard Bashman

Useful maxims of jurisprudence, helpfully collected in one place: Law Professor Euguene Volokh, who presumably is no longer wearing a clown costume today, mentioned and explained in a post this morning the nifty maxim "Superfluity does not vitiate." California lawmakers have helpfully collected that and other maxims of jurisprudence all in one area of that State's Civil Code, and you can access the whole collection here (link via my colleague down the hall).

The very first maxim listed is "When the reason of a rule ceases, so should the rule itself." In a Third Circuit opinion on which I worked before my judicial clerkship concluded, the judge for whom I clerked set forth two related maxims from a tax law review article:
(1) The rigidity with which a rule must be followed is in inverse proportion to the sense it makes.

(2) A rule vanishes when the reason for it vanishes; if there never was any reason for a rule, the reason cannot vanish and the rule, therefore, is incapable of vanishing.
Philadelphia & Reading Corp. v. United States, 944 F.2d 1063, 1074 n.8 (3d Cir. 1991) (Hutchinson, J.).
Posted at 15:40 by Howard Bashman

Supreme Court of Virginia rebuffs newspapers' effort to determine if innocent man was executed: You can access today's ruling of the Supreme Court of Virginia at this link (MSWord document). As The Associated Press reports here, "Virginia courts have never allowed DNA testing on evidence in a case where the convicted person has been executed."
Posted at 13:56 by Howard Bashman

Reader mail: The following email arrived today from a federal judicial law clerk based in New Mexico:
I am writing again to comment on the ever-increasing readership of How Appealing!

I am not at all surprised that you have so many devoted readers. How Appealing is on my list of "Favorites" -- at work and at home, and I find myself compelled to check throughout the day for updates. I find your entries incredibly entertaining, helpful, and a wonderful resource. Truly a one-stop-shop -- where I can find legal news of interest and quick links to interesting articles and other sites, involving not just appellate law or the Third Circuit, but matters which are topical and useful in my everyday work.

I continually wonder at your ability to maintain your blog, write your articles, and continue your work as a member of a major law firm. Really, it's quite inspiring.

I don't mean to sound like a fawning flunkie. However, like most law clerks, I am a self-admitted geek. I love reading about opinions and cases, I love a great debate about a judicial nominee or the merits of a decision. A fellow law clerk and I recently went to lunch with a friend in the Clerk's Office. We started discussing an opinion you mentioned by Judge Easterbrook ("federal judges are not pigs, hunting for truffles...") with great enthusiasm, and our colleague's eyes began to glaze over. I think most law clerks (being rather bookish and wonkish) are truly excited by the types of entries that appear in your blog. I am sure many other attorneys, law professors, and students feel the same way.

Keep up the good work, and thank you again!
That settles it -- I've got the geeky, bookish, and wonkish demographic pegged. But seriously, thanks so much for those very kind words!
Posted at 13:33 by Howard Bashman

Just a fleeting glance: The U.S. Court of Appeals for the Eighth Circuit today rejected a male former prison guard's argument that the U.S. Constitution requires same-sex monitoring of a urine sample collection:
In this case, we also note that Curia, as an employee of an independent company, would not encounter Booker on a regular basis and, if she were able to see Booker's genitals as he provided the sample, any such observation would have been fleeting.
It probably didn't help the plaintiff's case that he was a prison guard, because the Eighth Circuit had previously ruled that "surveillance of male inmates by female guards, including observation of them in the bathroom and shower, was not unreasonable." You can access the Eighth Circuit's opinion at this link.
Posted at 13:19 by Howard Bashman

My favorite female college student group Web log: I couldn't be more pleased to see that "How Appealing" has come to the attention of "The Bitch Girls," as that blog has become a favorite of mine in the short time that it has been in existence.
Posted at 13:17 by Howard Bashman

Today's judicial confirmation-related developments: The U.S. Senate (which today is sporting a sharp-looking redesigned Web site) may be in an election-induced lull, but that hasn't stopped the Bush Administration, newspaper editorial writers, and commentators from continuing to focus on the continuing battle between the President and the Senate Judiciary Committee over whether unquestionably highly qualified but conservative nominees should be confirmed to the Nation's federal appellate courts.

Today's edition of The New York Times contains an editorial that is harshly critical of President Bush's recent proposal to reform the judicial confirmation process. By contrast, in an essay published online today at FindLaw, Akhil Reed Amar and Vikram David Amar continue their spirited defense of Tenth Circuit nominee Michael W. McConnell. Between the Amars' essay and this recent essay published in The American Prospect, more attention is being paid to whether the reason why so many legal academics from disparate points on the political spectrum are supporting McConnell's nomination is that academics as a group believe that they should be held to a different standard than other judicial nominees.

Finally, for those looking for a more conservative take on the current judicial confirmation logjam, Robert Alt this morning offers these very interesting views.
Posted at 11:45 by Howard Bashman

Learn something new every day: It's one thing to learn that Legal Pictionary subjects are being selected in my honor, but quite another to discover that "Howard Bashman" can't readily be expressed in Chinese text (see the entry here for "2002-11-01 23:17:27").
Posted at 11:18 by Howard Bashman

blogdex has gotten better: blogdex -- a service of MIT that tracks what's popular in the blogosphere -- has recently reconfigured itself to be better than ever. For example, you can access sites that have linked to "How Appealing" via this blogdex link, and you can access a list of the sites that "How Appealing" has linked to here.
Posted at 09:52 by Howard Bashman

Halloween proves to be another record day: Who would have thought that a Web log devoted to appellate litigation might establish something of a devoted readership? Well, yesterday this blog received 7,700 page visits, surpassing its prior one day record of 5,810. And today, fewer than six months after this blog came into existence, "How Appealing" will receive its 200,000th visit. What is my plan to combat the excessively large readership that this blog appears to be developing? I will make this blog even more boring than ever -- just you wait and see -- assuming that that is even possible.
Posted at 07:01 by Howard Bashman

"How Appealing" featured this morning online at Wired News: The article, by reporter Kendra Mayfield, begins:
When attorney Howard Bashman noticed a small error in the footnote of a 5th Circuit appellate court opinion, he quickly noted it on his weblog.

The next day, Judge Jerry Smith, who wrote the opinion and also happens to be a reader of Bashman's blog, fixed the error in an amended version. The judge e-mailed Bashman, personally thanking him for bringing the mistake to his attention.

"It's the first time that I've noticed a weblog credited for pointing out an error and causing a correction (in a court decision)," Bashman said. "This example is noteworthy because it's the first time that something like this has come to light."

In the initial ruling, the court struck down a San Antonio, Texas, ordinance prohibiting adult video stores from setting up shop within 1,000 feet of a residential area.

A former clerk for the 3rd Circuit, Bashman noticed that a ruling mentioned in a footnote was misidentified.

He pointed out the error, noting that "the references to the 3rd Circuit contained in footnote 17 of the opinion may be in error, because the opinion, in context, appears to be referring back to decisions from the 8th and 10th Circuits, and not the 3rd."

The next day, Bashman received an e-mail from Smith stating, "You were the first to spot the error in footnote 17. Thanks. I have fixed it."

While Bashman acknowledges that the judge probably would have amended the error no matter how it was brought to his attention, Bashman was still surprised by the judge's e-mail.

"In my opinion, Judge Smith is regarded as one of the top-notch federal appellate judges in the nation and it's an honor to have him reading my weblog," Bashman said.
You can access the complete Wired News article at this link.
Posted at 06:47 by Howard Bashman

In Friday's newspapers: Washington Post columnist E.J. Dionne Jr. writes an essay that criticizes President Bush's plan to reform the process for confirming federal judicial nominees. Online at, Daniel Henninger explains why the sniper suspects, if guilty, deserve to receive the death penalty.
Posted at 06:42 by Howard Bashman

Totally! Law Professor Jack Bogdanski notes at his blog that the Court of Appeals of Oregon ruled earlier this week that Oregon's constitution does not guarantee the unfettered right to engage in totally nude dancing, free from any state or local regulation. You can access the court's ruling at this link.
Posted at 06:25 by Howard Bashman

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