How Appealing

Sunday, November 30, 2003
"On Same-Sex Marriage": Columnist William Safire will have this op-ed in Monday's issue of The New York Times.
Posted at 23:44 by Howard Bashman



"A Case of Church and State and the States": Charles Lane will have this article in Monday's edition of The Washington Post.
Posted at 23:40 by Howard Bashman



Elsewhere in Sunday's newspapers: The Los Angeles Times reports that "Patriot Act Author Has Concerns; Detaining citizens as 'enemy combatants' -- a policy not spelled out in the act -- is flawed, the legal scholar says." An article reports that "GOP Puts Its Mark on Congress and Deficit." The Magazine section contains articles headlined "The Sons of Sante Kimes: The Notorious Grifter's Two Boys Followed Strikingly Different Paths, But Destiny Has Brought Them Together in an L.A. Legal Drama. This Time It's a Matter of Life and Death" and "Sante Kimes' Relentless Pursuit of Postponement." And letters to the editor appear under the headings "How U.S. Is Redefining Institution of Marriage" and "Helping the Sick Should Not Be a Crime."

The Boston Globe reports that "Patriot Act stirs worry, but it's been little-used." In related news, "New surveillance guidelines fuel debate in California; Concerns raised on civil liberties." In local news, the first article in a three-part series is headlined "In death, Geoghan triggers another crisis." In news relating to gay marriage, "Bishops call SJC decision 'tragedy'" and "Protestants weigh same-sex marriage." An article reports that "Bush presses funding for faith groups." And James M. Shannon has an op-ed entitled "Misreading the SJC on gay marriage."

The Washington Times reports that "Gay 'marriage' looms as 'wedge.'" In other news, "Affirmative action backers push for Connerly's ouster." An article reports that "Guantanamo probe snares Army colonel." And L. Brent Bozell III has an op-ed entitled "Ring of extremism."
Posted at 22:20 by Howard Bashman



"US To Release Guantanamo Bay Terrorist Suspects": Voice of America News provides this report. And BBC News reports that "US 'set for Guantanamo releases.'"
Posted at 22:10 by Howard Bashman



"Sniper Trial to Resume after Holiday Break": Tonight's edition of NPR's "All Things Considered" contained a report described as follows:
The trial of Lee Boyd Malvo, one of two men accused in last year's sniper shootings in the Washington, D.C., area resumes Monday after taking a break for the Thanksgiving holiday weekend. Malvo's lawyers are using an insanity defense, arguing Malvo was manipulated by his accomplice, John Allen Mohammed. NPR's Jackie Northam reports.
You can hear the report by clicking here (Real Player required).
Posted at 22:05 by Howard Bashman



"Confirmation Gridlock: The Federal Judicial Appointments Process Under Bill Clinton and George W. Bush." This essay by John Anthony Maltese appears in the current issue of The Journal of Appellate Practice and Process.
Posted at 21:59 by Howard Bashman



The Associated Press is reporting: "Convicted Sniper May Appear in Malvo Trial"; "Colorado Court to Decide Redistricting"; "Mass. Bishops Bewail Gay Marriage Ruling"; "Youngest death-row inmates seek life"; "Michigan's Admissions Lagging After Ruling"; "Janklow Manslaughter Trial Begins Monday"; "Redistricting Divides Small Texas Town"; "Lincoln Wasn't As Quotable As Some Think"; and "Things Lincoln Never Said."
Posted at 18:05 by Howard Bashman



In just eight hours from now: I will be posting online here the December 2003 installment of "20 questions for the appellate judge." December's interviewee is Seventh Circuit Judge Richard A. Posner.
Posted at 16:00 by Howard Bashman



"Hopelessly Unjust: Prosecution admits anything goes in aid of execution." This editorial appears today in The Houston Chronicle.
Posted at 15:55 by Howard Bashman



"The Democratic memos: Does anybody care?" Byron York had this essay in Wednesday's issue of The Hill.
Posted at 15:53 by Howard Bashman



"Eutaw joins war on death penalty; Resolution marks milestone in push to halt executions": This article appears in today's edition of The Birmingham News.
Posted at 15:50 by Howard Bashman



"Dad fights school for more of child's time": The Cleveland Plain Dealer today contains this report.
Posted at 15:49 by Howard Bashman



"Massachusetts a state divided over same-sex marriage: It's an issue that isn't cut-and-dried for many people, as the state's religious heritage collides with its progressive leanings." This article appears today in The St. Petersburg Times.
Posted at 14:29 by Howard Bashman



Coming soon to a newsstand near you: The December 8, 2003 issue of Time magazine contains articles headlined "Inside 'The Wire': Security breaches. Suicidal detainees. A legal challenge heading to the Supreme Court. Welcome to Guantanamo" and "Enemies Within? On the Base: Fear of Spying."

The December 8, 2003 issue of Newsweek contains articles headlined "Amending Their Ways: Author of a bid to enshrine marriage has surprising allies"; "Gay Marriage: Touting the His-His Suite"; and "The Litigation: Looking For Payback; Their trust betrayed, investors are joining class-action suits."

Finally, the December 8, 2003 issue of U.S. News and World Report contains an article headlined "Letter From South Dakota: A death at a crossroads."
Posted at 13:40 by Howard Bashman



In Sunday's newspapers: The Washington Post reports that "Recording Reveals Malvo's Resolve; Both Sides Say Tape Proves Case." In other news, "Smugglers Enticed by Dirty Bomb Components; Radioactive Materials Are Sought Worldwide." An article reports that "Abortion Clinics Targeted Before They Are Built; Foes Threaten to Boycott Contractors." In other news, "Army Officer's Actions Raise Ethical Issues." Editorials are entitled "A New Approach" and "Unhappy Anniversary." Columnist George F. Will has an essay entitled "Culture and What Courts Can't Do." And Vincent Schiraldi has an essay entitled "Finally, States Release The Pressure on Prisons."

In The New York Times, Frank Rich has an essay entitled "America Tunes In for the Money Shot."

And online at OpinionJournal, you can access an editorial entitled "Washington's Commandments: The capital is rife with religious symbols. Shh! Don't tell the ACLU!"
Posted at 12:30 by Howard Bashman



In news from Ann Arbor: The Ann Arbor News today reports that "U-M admissions lag last year; New system, crafted after Supreme Court rulings, got late start" and that "New application receives good grades; Local high school seniors say essays are more work but provide a better picture."
Posted at 09:29 by Howard Bashman



"Student's suit may shift line on religion": The Seattle Times today provides this preview of a case in which the U.S. Supreme Court will hear oral argument on Tuesday. And The Hartford Courant this past Thursday contained an article headlined "Court To Hear Case On Religion; Ministry Student Sued After Washington State Refused Aid For His Studies, Citing Church-State Conflict."
Posted at 09:18 by Howard Bashman



"Low-profile Gullah community is at risk": The Miami Herald today contains this report.
Posted at 09:17 by Howard Bashman



"Remap ruling draws nation's eyes; Opinion due Monday may affect others on how often redistricting is allowed": This article appears today in The Denver Post.
Posted at 09:15 by Howard Bashman



"As date with Supreme Court nears, man seeking pledge ban is relentless; Drive against 'under God' one facet of his legal efforts": Howard Mintz has this article in today's edition of The San Jose Mercury News.
Posted at 09:09 by Howard Bashman



"Privacy, access at odds in Foster autopsy case": This article appears today in The St. Petersburg Times.
Posted at 09:01 by Howard Bashman



"The Zero Files: Shadowy worlds of conspiracy, mind control and paranoia, all in the hands of the FBI..." Today's edition of The San Francisco Chronicle contains this report, which includes mention of the Hamburglar but not Mayor McCheese.
Posted at 08:58 by Howard Bashman



"Some fear new laws will backfire; Tougher penal code could spur prison overcrowding, early releases": This article appears today in The Houston Chronicle.
Posted at 08:54 by Howard Bashman



"It's a boy"! Denise Howell of the "Bag and Baggage" blog announces what she and her husband have agreed to name their first child, and that she has just experienced the "Best three days I've ever had," in a post you can access here. As far as the name is concerned, "Gnudist" it's gnot.
Posted at 08:45 by Howard Bashman



Saturday, November 29, 2003
"No room for judgment": Today's issue of The St. Petersburg Times contains an editorial that begins, "In a speech before the American Bar Association in August, U.S. Supreme Court Justice Anthony Kennedy decried current federal sentencing practices as too harsh."
Posted at 23:48 by Howard Bashman



"Major Issues in Moussaoui Appeal; Circuit Court Confronts Constitutional Questions in Terror Case": This article will appear in Sunday's edition of The Washington Post. And Sunday's edition of The Minneapolis Star Tribune will contain an article (registration required) headlined "Pre-attack interviews with Moussaoui raised FBI agents' suspicions."
Posted at 23:44 by Howard Bashman



Elsewhere in Saturday's newspapers: The Washington Times reports that "Leaked memo sparks cries of news media bias."

The Boston Globe reports that "Chaplain is called victim of hysteria." And in local news, "Police stops draw concerns; Antiterrorism strategy is questioned by ACLU."

The Los Angeles Times reports that "Church May Penalize Politicians; Bishops are exploring requiring officeholders who are Catholic to back official doctrine." An article reports that "New U.S. Agency Gets Cool Reception." In local news, "Suit Faulting Disney Safety Due for Trial; Jury selection could begin next week in the case of a surgeon who says he was injured on a California Adventure ride in August 2001." In other local news, "Sonoma Is Front Line in War Over Foie Gras." An article reports that "Police Share Credit for Capture; U.S. and Mexican law enforcement agencies worked tirelessly to find the man suspected in the Nov. 15 slaying of a Burbank officer." An editorial is entitled "Sex in the Capital City." And letters to the editor appear under the heading "Marriage Rights for Gays."
Posted at 23:00 by Howard Bashman



In Church-State news from here and there: The Casper Star-Tribune reports from Wyoming that "Nativity scene goes up despite Ten Commandments brouhaha." The Deseret News reports from Utah that "S.L. religious group is suing Duchesne over monument; Suit filed after city turns down another display." In news from Alabama, The Associated Press reports here that "A federal judge has set a timetable for filing motions on Attorney General Bill Pryor's request to dismiss or move a lawsuit that seeks to return former Chief Justice Roy Moore to office." And in news from Idaho, The AP offers an article headlined "Boise rally backs Commandments marker, Alabama judge."
Posted at 20:44 by Howard Bashman



How unappealing: The Post-Tribune today reports that "Indiana's judges do not find their pay appealing."
Posted at 20:38 by Howard Bashman



"Memorial service planned for former judge": The Associated Press reports here today that "A memorial service is being planned for next month in New Hampshire for retired federal appeals court Judge Hugh Bownes, who died earlier this month."
Posted at 20:36 by Howard Bashman



"Beyond Gay Marriage: Preparing for Splitsville." Sunday's edition of The Washington Post will contain this essay by Larry W. McCallum.
Posted at 20:28 by Howard Bashman



"Rudolph's phone calls of interest; Prosecutors seek subpoena for bombing suspect's records": This article appears today in The Atlanta Journal-Constitution.
Posted at 20:25 by Howard Bashman



"Computers, paralegals replace 6 lawyers for inmates": Sunday's edition of The Atlanta Journal-Constitution will contain this report.
Posted at 20:20 by Howard Bashman



"3 ex-officers challenging detentions at Guantanamo Bay; In a case the U.S. Supreme Court will soon consider, three former high-ranking officers have played a key role in arguing against the indefinite detention of suspected terrorists on the Navy base in Guantanamo Bay, Cuba." This article appears today in The Miami Herald. And a related item is entitled "Stating the case."
Posted at 20:18 by Howard Bashman



"Frank Talk About Abortion": Sunday's edition of The New York Times will contain an editorial that begins, "The current debate about so-called partial birth abortion has produced some strange and unfortunate consequences."
Posted at 20:15 by Howard Bashman



"State scholarship case goes to U.S. Supreme Court": Today's edition of The Olympian contains this report. And The Associated Press reports offers an article headlined "Can state restrict field of study? Supreme Court to decide if theology exclusion OK."
Posted at 20:10 by Howard Bashman



"Sniper decision counters U.S. trend; Recommendation of death contrary to decline of capital punishment": This article appears today in The Baltimore Sun.
Posted at 20:07 by Howard Bashman



"High-profile cases spark interest": Michael Kirkland, who covers the U.S. Supreme Court for United Press International, reports here today that "The Supreme Court is preparing to hear two high-profile cases in the upcoming week after a season of rather bland argument in the first part of the term."
Posted at 20:06 by Howard Bashman



"Postal fight sends dean to high court": The Chicago Tribune today contains this article. And The Daily Herald today reports that "Man takes postal complaint to high court." For those who enjoy tongue-twisters, the law school dean who will argue this case is Harold J. Krent of Chicago-Kent.
Posted at 20:00 by Howard Bashman



"The High Costs of Rising Incivility on Capitol Hill": This news analysis will appear in the Week in Review section of Sunday's issue of The New York Times.
Posted at 18:05 by Howard Bashman



"Courts to Examine State Contraceptive Laws": David Kravets of The Associated Press provides this report.
Posted at 18:00 by Howard Bashman



Tonight on C-SPAN's "America and the Courts" program: C-SPAN provides the following description:
Solicitor General Theodore Olson's opening address to the Federalist Society 2003 Lawyers' Convention, from 11/13. Also, Justices Sandra Day O'Connor and Ruth Bader Ginsburg's speeches at the Philadelphia Bar Association Quarterly Meeting, from 10/23.
Perhaps as early as Monday a link to on-demand, streaming video of tonight's program will be available here.
Posted at 17:50 by Howard Bashman



"Church, state face off over birth-control pills; Catholic-backed group fights benefits law": Howard Mintz today has this article in The San Jose Mercury News.
Posted at 17:49 by Howard Bashman



Attending law school in "the heart of the Tenderloin where criminals flagrantly buy and sell illegal drugs without regard for statutes or codes or law-abiding neighbors." Yesterday's edition of The San Francisco Examiner contained this article.
Posted at 17:48 by Howard Bashman



"Cryin' won't help you, prayin' won't do you no good": The Sacramento Bee today contains an article headlined "State blamed in levee failure; A court ruling in a flood in Yuba County in 1986 could cost millions." You can access Wednesday's decision of the California Court of Appeal for the Third Appellate District at this link. (This post's title courtesy of lyrics from the Led Zeppelin song "When the Levee Breaks.")
Posted at 17:44 by Howard Bashman



"Kamehameha settles Kaua'i boy's lawsuit": The Honolulu Advertiser reports here today that "Trustees for the Kamehameha Schools, after wrestling with concerns over opposition in the Hawaiian community, approved a settlement yesterday that will allow a seventh-grade non-Hawaiian student to continue attending the private school until he graduates."
Posted at 11:15 by Howard Bashman



In Saturday's newspapers: The Washington Post reports that "Opponents Of Gay Marriage Divided; At Issue Is Scope Of an Amendment." An article is headlined "A Prisoner Of Panic After 9/11: Algerian-Born Detainee Seen as Victim of Excess." In local news, "Pr. George's Questions Detention Center Plan; Congressional Action May Stall Bid Process." And columnist Colbert I. King has an essay entitled "'Slap on the Wrist, Slap in the Face.'"

The New York Times contains a news analysis headlined "Division Over Death Penalty." An article reports that "Persistent New Leaks Fuel Coverage of Jackson Case." And today's "About New York" column is headlined "Unforgiven for the Passions of His Youth."
Posted at 09:05 by Howard Bashman



"Prison gang case puts role of FBI informants under scrutiny; Investigation results in 13 guilty pleas; 9 more defendants face trial next year": This lengthy article appears today in The San Francisco Chronicle.
Posted at 08:55 by Howard Bashman



Friday, November 28, 2003
"Settlement Reached in Hawaii School Suit": The Associated Press provides this report. And a news update from The Honolulu Advertiser is headlined "Kamehameha trustees approve Mohica-Cummings settlement."
Posted at 23:30 by Howard Bashman



Elsewhere in Friday's newspapers: The Boston Globe reports that "Gay marriage decision spurs action across US." In other news, "Changes sought in Calif. recall process." And an article reports that "Governor slow to fill court jobs; Aide says delays linked to new nominating rules."

The Los Angeles Times reports that "License Plates Put Abortion Controversy in Full View; An attorney is suing Arkansas, arguing that officials are allowing only one viewpoint -- 'Choose Life' -- to be displayed in public." In other news, "New Muslim Chaplain to Have Limited Role at Guantanamo; Replacement for Army Capt. James Yee won't have access to suspected terrorist detainees." And an article reports that "Lawmaker Says Leftists Hold Sway at Colorado Campuses; Conservatives are bullied by professors, says state senator who suggests legislation."

The Washington Times reports that "Guantanamo guards celebrate in new facility." In other news, "N. Virginia envisions prisoners who buck the system." And Joseph R. Pitts has an op-ed entitled "The foundation of society."
Posted at 22:45 by Howard Bashman



"Courthouse art raises eyebrows; Form, cost noted as staff faces tight budget": This article appears today in The Denver Post.
Posted at 22:40 by Howard Bashman



"Redistricting ruling due Monday": The AP reports here that "The Colorado Supreme Court will issue a long-awaited ruling Monday on whether the Republican-led Legislature had the right to redraw congressional districts last year - a decision that could have national implications in the 2004 races."
Posted at 22:39 by Howard Bashman



"Inmate who won landmark Supreme Court case remains on death row": The Associated Press provides this report from Virginia.
Posted at 22:30 by Howard Bashman



"The Fickle Finger Of Book Sales": The latest installment of Justice William W. Bedsworth's very funny monthly column is available online here.
Posted at 09:56 by Howard Bashman



Congratulations to Denise Howell and her husband on the birth of their baby! And the baby is so very cute (just like you'd expect). Coincidentally, and as I previewed here just the other day, today is the second anniversary of the birth of Denise's Web log, "Bag and Baggage."
Posted at 09:05 by Howard Bashman



"State convict-labor program comes under attack": This article appears today in The Seattle Times.
Posted at 07:22 by Howard Bashman



"Long haired freaky people need not apply": The Seattle Post-Intelligencer reports here today that "Justices to decide if sign ban too rigid; $1,425 fine for raincoat ads." (This post's title courtesy of Five Man Electrical Band.)
Posted at 07:20 by Howard Bashman



"Inmate's sperm donation hit; Former jail doctor defends decision": This article appears today in The Chicago Tribune.
Posted at 07:15 by Howard Bashman



The Associated Press is reporting: "Supreme Court to Tackle Church-State Case" and "Stigma Weakens for Pols Who Smoked Pot."
Posted at 07:10 by Howard Bashman



"No 9-11 Compensation for Flight Attendant": The Associated Press reports here from New Jersey that "A flight attendant who would have died in the Sept. 11 attacks if she hadn't traded shifts with a co-worker may not receive workers compensation for emotional distress, a state appellate court ruled." You can access Wednesday's ruling of the Superior Court of New Jersey Appellate Division at this link.
Posted at 07:00 by Howard Bashman



Commentary available online from FindLaw: Vikram David Amar today has an essay entitled "The Partial Birth Abortion Ban Act: If It is Enjoined but then Ultimately Upheld, Can Doctors Who Violated It While the Injunction Was in Effect Be Punished?" And yesterday Edward Lazarus had an essay entitled "The Proposed Change to the Federal Rules of Appellate Procedure Allowing Citation of Unpublished Opinions: Why It Will Be Harmful."

Update: A gimlet-eyed reader emails to observe that with respect to Professor Amar's essay, FindLaw is serving leftovers on the day after Thanksgiving. Or, to put the point more plainly, what FindLaw describes on its home page as "Part II" of Professor Amar's essay is, at least as of early Friday morning, the republication of "Part I" of his essay, which originally debuted at FindLaw two weeks ago. (And no, gimlet eyes are apparently not an ingredient in giblet gravy.)
Posted at 06:55 by Howard Bashman



In Friday's newspapers: The Washington Post reports that "Congress Wraps Up Mixed-Bag Session; GOP, Democrats Disagree on Outcome." An article reports that "Senate Opens Inquiry Into Leaked Memos; Computer Files Discussed Democrats' Strategy on Bush Judicial Nominations." An editorial is entitled "A Special Case." And Alan Charles Raul has an op-ed entitled "Undermining Society's Morals."

The New York Times reports that "DaimlerChrysler Heads to Court Over '98 Merger." Adam Liptak has an article headlined "At Malvo's Trial, a Judge Much in Charge." In news from Salt Lake City, "Government Case Shifts Its Focus to Fraud." In other news, "New Light on Old F.B.I. Fight." In local news, "With Cross-Sound Rivals, Waters Are Rarely Calm." And Nathaniel Frank has an op-ed entitled "Why We Need Gays in the Military."

The Christian Science Monitor reports that "Trial puts spotlight on steroids; Some analysts say drug- testing programs in pro sports fall short and call for radical new measures." An article is headlined "Tired of e-mail about losing weight? Help may be on the way; Congress passes 'antispam' bill with five-year prison terms for violators. But don't expect junk messages to end just yet." And an editorial is entitled "Branding Former Sex Offenders."

Finally for now, Robert P. George has an essay online at OpinionJournal entitled "One Man, One Woman: The case for preserving the definition of marriage."
Posted at 06:30 by Howard Bashman



Twenty-eight years ago today: The Associated Press notes here that on this date "In 1975, President Ford nominated Federal Judge John Paul Stevens to the U.S. Supreme Court seat vacated by William O. Douglas."
Posted at 06:25 by Howard Bashman



Thursday, November 27, 2003
Elsewhere in Thursday's newspapers: The Boston Globe reports that "Foes of same-sex marriage welcome proposed constitutional amendment" and that "Weld supports gay marriage ruling." And in other news, "Pats cheerleader rooted in the law."

The Washington Times reports that "Sniper duo spending holiday in jail cells." In other news, "Revised lawsuit-reform bill wins Democratic converts." An article reports that "Brady's wife fights release." And in news from Kansas, "Man sentenced to life in prison as dealer of LSD."

The Los Angeles Times reports that "Gov. Paroles Second Killer; By contrast, Davis freed only eight murderers during his five-year tenure, and twice denied the woman freed by Schwarzenegger." In other news, "Beckman Coulter Agrees to a Huge Cut in Judgment; A U.S. Supreme Court case in April that limited punitive damages leads the firm to settle its suit." An article reports that "Chargers' Suit Stirs Emotions; Promising a legal challenge, angry San Diego leaders say the team wants to move to Los Angeles and accuse it of 'sneaking off' to L.A. to file papers." In other news, "Rebel Yell Over Mascot at Ole Miss; University's decision to sideline a symbol sparks a debate on and off campus about the desire to honor tradition and the need for change." An article reports that "XtraJet Executive Called FBI Informant; Jeffrey Borer denies the reports. Agency denies any role in videotaping Michael Jackson on jet." In business news, "Judge Rejects Unocal Charges; The ruling is a setback for rivals that allege the company deceitfully gained a monopoly on a clean-fuel formula." And in local news, "County to Appeal Ruling on Brown Act."
Posted at 22:50 by Howard Bashman



Online at The Village Voice: Brad Sears and Alan Hirsch have an essay entitled "No Time To Celebrate: Same-Sex Marriage in the Court of Public Opinion." And Mark Fiore has an animated cartoon entitled "Gay Marriage: You Never Know What Kind of Relationship Will Turn Up!"
Posted at 22:44 by Howard Bashman



"Powell: no quick deal on Guantanamo; US needs more time to decide if Britons held in Cuba are dangerous, he tells Guardian." This article appears in Friday's issue of The Guardian.
Posted at 22:33 by Howard Bashman



"High Court Urged to Hear Comic Book Case": Gina Holland of The Associated Press provides this report.
Posted at 22:22 by Howard Bashman



"Appeals nominee is ideal for GOP; Allen, the man at the center of the 4th Circuit flap is a staunchly conservative African-American." This article appears today in The Baltimore Sun.
Posted at 22:20 by Howard Bashman



"Pryor objects to Moore suit": The Associated Press provides this report from Alabama.
Posted at 22:11 by Howard Bashman



"Kamehameha Schools considers settlement": The Honolulu Advertiser reports here today that "Kamehameha Schools is considering a court settlement that would allow a 12-year-old non-Hawaiian boy from Kaua'i to remain at the Kapalama campus until he graduates, if his lawyers drop their lawsuit challenging the school's Hawaiians-preferred admissions policy."
Posted at 22:05 by Howard Bashman



"Importer of rare orchid indicted; An ugly scandal involving a lovely flower descends on orchid lovers and admiration seekers." The St. Petersburg Times today contains this report.
Posted at 22:04 by Howard Bashman



"Pa. Supreme Court rules against 'suspicionless' school drug testing": This article appeared yesterday in The Pittsburgh Post-Gazette. I previously reported on and linked to this ruling in a post you can access here.
Posted at 22:01 by Howard Bashman



"Chesco judge Sanchez nominated to U.S. bench; Several openings in Pennsylvania's Eastern District should give the GOP a long-term influence on the court's makeup." Today's edition of The Philadelphia Inquirer contains this report.
Posted at 21:59 by Howard Bashman



In news from Michigan: The Bay City Times contains articles headlined "Judge rules breath test's goals don't trump First Amendment" and "Judge puts cork in Ice Mountain's Mecosta County bottling operation." And The Grand Rapids Press reports that "Water ruling runs deep" and provides these excerpts from the ruling.
Posted at 12:50 by Howard Bashman



"Judge criticizes Dallas mayor's call as 'sinister'": The Associated Press provides this report. And yesterday's edition of The Dallas Morning News reported that "Mayor's call to judge stirs ethics questions; Miller cites concern for child in custody fight, denies bid to sway case" (free registration required).
Posted at 12:49 by Howard Bashman



"Hearing set on DeLay remap subpoena motion": The Houston Chronicle today contains this report.
Posted at 12:47 by Howard Bashman



"Death penalty decision assailed; Green River case cited": This article appears in today's issue of The Seattle Post-Intelligencer. And in somewhat related news, The Seattle Times reports today that "Killer's wife knew a different man."
Posted at 12:42 by Howard Bashman



In Thursday's newspapers: The New York Times reports that "Mistrial Is Declared in Tax Withholding Case." A report on the U.S. Congress is headlined "Pass the Sour Grapes, Not Sweet Potatoes," and a related list is headlined "Congress in Review." In other news, "Testimony Ends in Hearing for Hinckley." And in local news, an article is headlined "How to Obey Schools Ruling? Pataki and Bloomberg Differ."

The Washington Post reports that "Prosecutors Making Fraud Cases Relative; Government Targets Family of Accused." In other news, "9/11 Panel May Seek Extension; Pressure Mounts as Investigation of Attacks Bogs Down." In local news, "St. E's Officials Say Hinckley Isn't a Threat; Testimony, Letter Offer Details Of Unsupervised Excursions." A front page article is headlined "A Spiritual Struggle for Democrats; Silence on Religion Could Hurt Candidates." In other news, "Land-Rights Dispute Continues in Alaska; Man Who Bulldozed Road Is Still at Odds With Park Service." In business news, "Scrushy Ordered to Repay Loans; Judge Says Ex-CEO Owes $25 Million in Cash." In news from Maryland, "Easing Young Witnesses' Fears; Video to Familiarize Children With Court Process." An editorial about the Zacarias Moussaoui case is entitled "Fool for a Client (Cont'd)." And a letter to the editor appears under the heading "A Legal Loss Overlooked."
Posted at 12:12 by Howard Bashman



Wednesday, November 26, 2003
Elsewhere in Wednesday's newspapers: The Washington Times reports that "Battle rages over judges memos." In other news, "Senators offer amendment against gay 'marriage.'" In news from Virginia, "Malvo recalled as 'obedient' child." In related news, "Death penalty seen as right." An article reports that "Military adds sex charges against Muslim chaplain." Cal Thomas has an op-ed entitled "Judging Jackson and ourselves." Paul Greenberg has an op-ed entitled "Humpty Dumpty on unholy matrimony." And Ed Feulner has an op-ed entitled "Upholding the law."

The Los Angeles Times reports that "Appellate Court Cuts Huge Crash Case Award; State judges reduce the $290-million verdict against Ford to $23 million after a U.S. Supreme Court ruling." An article is headlined "Testimony on Kinder, Gentler Malvo; The defense opens with the alleged sniper's family and friends on the stand, to counter the prosecution's portrayal of a hardened killer." In other news, "Guantanamo Camp's Muslim Chaplain Faces New Charges; Army captain suspected of mishandling secret data is accused of porn possession and adultery." In news from Colorado, "Media Want Motions Open in Bryant Case." In other celebrity-related news, "FBI Probes Videotaping of Jackson on Jet; Agents seize tapes from Santa Monica charter firm. Judge temporarily bars the company from showing, distributing or selling them." An article reports that "Woman Says She Was Drugged, Raped at San Diego House for MTV's 'Real World.'" In other news, "County Supervisors' Bid to Stifle Gadfly Draws Fire; Approval of a new rule to eject 'disruptive' speakers, aimed at a frequent board critic, is assailed by 1st Amendment advocates." Columnist Dana Parsons has an essay entitled "Good-Guy Sheriff Can Also End Jail Abuse." And letters to the editor appear under the heading "Living in the Lap Dance of Luxury."

The Boston Globe reports that "Sampson jury to weigh premeditation; Judge's ruling comes in Sampson death penalty case." A newsbrief reports that "Harvard to allow military recruiters." In local news, "Advocates irked in Essex courts." In other local news, "BC proposes new, strict conditions on student newspaper; Heights editors vow to preserve their autonomy." Robert Kuttner has an op-ed entitled "Shifting norms led to gay marriage ruling." And David Moats has an op-ed entitled "The lessons of Vermont may help in Massachusetts."

USA Today reports that "Hinckley insists he's normal now." And Robin Gerber has an op-ed entitled "End decade-old 'don't ask' policy."
Posted at 23:35 by Howard Bashman



Eleventh Circuit panel divides over whether to grant qualified immunity to police officer who arrested cameraman filming demonstrations in Miami on the day the federal government removed Elian Gonzalez from his family there in order to return him to his father, who lives in Cuba: You can access today's ruling, in which the majority reverses a district court's ruling that denied qualified immunity, at this link.
Posted at 22:47 by Howard Bashman



Denise Howell is looking forward to two birthdays: One you've heard a bit about lately. The other, however, also deserves not to be neglected. You see, on Friday Denise's blog, "Bag and Baggage," celebrates its second birthday. If you missed Denise's recent appearance on television, you can listen to the audio of the telecast here and read the transcript here.
Posted at 19:59 by Howard Bashman



You rang?: The Virgin Islands Daily News reports that "Gomez tapped for District Court on St. Thomas; Presidential nominee will replace Moore if approved by U.S. Senate."
Posted at 17:35 by Howard Bashman



In re dynes and newtons: Today Seventh Circuit Judge Terence T. Evans issued a concurring opinion that begins, "Although it's debatable whether expending dynes (to say nothing about newtons) pressing the keys of my wordprocessor to concur in this case is worth the effort, I do so because the result we reach, though correct on the law, is divorced from common sense."

You can access both that concurring opinion and the opinion of the court by Circuit Judge Frank H. Easterbrook at this link.
Posted at 17:22 by Howard Bashman



Not the type of pro bono assignment this lawyer had in mind: Today the U.S. Court of Appeals for the Seventh Circuit issued an opinion that begins:
James Adducci was permitted to withdraw as retained counsel for Mary Cusimano due to the non-payment of attorney's fees. Three weeks later, the district court appointed him to represent her pro bono and overruled his objection to the assignment. While we encourage appointments under the district court's pro bono service program, we reverse its appointment of Mr. Adducci in this case because the appointment did not comply with the Northern District of Illinois's Local Rules.
You can access the complete opinion at this link.
Posted at 17:14 by Howard Bashman



Federal Circuit affirms dismissal of takings claims asserted against the federal government valued at $1 trillion brought on behalf of a class of 400,000 to 600,000 U.S. citizens injured or killed as a result of hostilities against Japan in World War II: Today's opinion begins:
This is a takings case, in which the triggering event--the 1951 Treaty of Peace between the United States and Japan (known as the San Francisco Treaty) that formally ended World War II in the Pacific Theater--occurred more than fifty years ago. Plaintiffs purport to represent a class of 400,000 to 600,000 United States citizens injured or killed as a result of Japan's war against the United States; plaintiffs' prayer for relief seeks damages against the United States in the amount of $1 trillion.

It is plaintiffs' claim that, by barring individual claims against Japan for personal wrongs done to them, the Treaty took their property, and that the taking of their property is in violation of the United States Constitutional requirement that "private property [shall not] be taken for public use without just compensation."

Plaintiffs recognize that they have a problem with the statute of limitations, which bars suits against the United States in the Court of Federal Claims that are brought more than six years after the cause of action accrues. 28 U.S.C. § 2501. They offer two novel theories why the statute of limitations does not bar their cause of action: one is that since takings claims are constitutionally enabled, Congress does not have the power to limit a claimant's right of recovery; and the second is that until the United States announces in no uncertain terms its intention not to pay for the taking, a cause of action does not begin to accrue for limitations purposes.

The trial court was not persuaded by plaintiff's theories, and granted the Government's motion to dismiss on the ground that the suit was barred by the statute of limitations. This appeal followed.
Today, in an opinion you can access here, the U.S. Court of Appeals for the Federal Circuit affirms the dismissal of this lawsuit.
Posted at 16:51 by Howard Bashman



Font rant: Not too long ago, the Seventh Circuit's Web site would post opinions either in Book Antiqua font or in a font that was either Times Roman or Century Schoolbook. Lately, however, the judges whose opinions once appeared in Book Antiqua have instead had their opinions appear in some ugly sans serif font such as the Verdana font -- see, for example, this opinion issued yesterday by Circuit Judge Richard A. Posner and this amended opinion issued today by Circuit Judge Daniel A. Manion (which can be compared to the original opinion, in Book Antiqua font).

The Seventh Circuit itself advises attorneys not to use sans serif fonts in briefs, and thus I cannot conceive that that court is intentionally publishing its opinions in sans serif font. Rather, what is likely happening is that the person whose job it is to put opinions on the Web either doesn't like Book Antiqua or doesn't have the font installed on his or her computer. In either event, I hope this is corrected before too many more Judge Posner opinions hit the Web in Verdana or some other ugly sans serif font.

And to the wiseacres who will observe that "How Appealing" is presented in a sans serif font, you are absolutely correct. But when I prepare appellate briefs to be filed in court, I invariably use either Century Schoolbook or Book Antiqua.
Posted at 15:12 by Howard Bashman



Some developments in the currently-pending Fourth Circuit appeal involving Zacarias Moussaoui: The docket entries in the appeal reflect that today the court of appeals denied Moussaoui's request to receive a live feed of the oral argument in jail. Also, the court today entered an order that the docket entries describe as "placing defendant on notice that further pro se filings containing intolerable language, including subtle and overt threat, profanity and improper attempts to communicate to others will result in imposition of a sanction, in the form of refusal of this court to accept further pro se filing from the defendant." This may qualify as an actual Hobson's choice for Moussaoui. And the court today allowed the filing of a third-party's amicus brief on Moussaoui's behalf. You can access here a document that members of the news media can complete to request reserved seating at the oral argument. Be sure to specify whether you are bringing a satellite or microwave van. Finally, the text of yesterday's order regarding oral argument can be accessed at this link.
Posted at 14:40 by Howard Bashman



Cybercourts of Appeal: I've agreed to be the "guest speaker" for an online seminar on this topic that will take place from Wednesday through Friday of next week at an Internet-connected computer near you. More details are available here. The seminar will be taking place on the discussion list that is the successor to the "Net-Lawyers" email list that Lew Rose operated. I remember that list fondly.
Posted at 14:25 by Howard Bashman



Happy Thanksgiving to readers of "How Appealing": I wish you a safe and enjoyable Thanksgiving holiday weekend. I have an appellate brief due today that's about 98% ready to go out the door, and I'll be around for most of the balance of the day in case anything noteworthy happens in the world of appellate law. Updates will also appear throughout the weekend, on an appropriately relaxed pace. On Friday afternoon, you can find me here; on Saturday afternoon, this movie appears to be on the agenda. And, of course, at midnight on the morning of Monday, December 1, 2003, I will be posting online here the December 2003 installment of "20 questions for the appellate judge" featuring Seventh Circuit Judge Richard A. Posner as the interviewee.
Posted at 13:24 by Howard Bashman



"D.A. changes a skirts-only rule; Pants join the dress code for female prosecutors": This article appears in today's edition of The Philadelphia Inquirer. And Jill Porter, a columnist for The Philadelphia Daily News, writes "D.A.: Let 'em wear pants."
Posted at 13:15 by Howard Bashman



USA v. John W. Hinckley, Jr.: The U.S. District Court for the District of Columbia has posted online this redacted letter from the Department of Mental Health for the District of Columbia regarding Hinckley's request for unsupervised visits away from Saint Elizabeths Hospital.
Posted at 13:03 by Howard Bashman



The Times of London, Google, and the U.S. Court of Appeals for the Second Circuit combine to increase this blog's British readership: This morning I awoke to find that many visitors to "How Appealing" in the overnight hours had arrived from Great Britain via Google searches for the term "picquerism." The January 2003 archive of "How Appealing" appears on the first page of results for that search, thanks to a decision that the U.S. Court of Appeals for the Second Circuit issued that month. You can access my specific post that mentions the term at this link.

In any event, today's issue of The Times of London contains an article (available here by subscription only) about the "Camden Ripper" that mentions "picquerism," and apparently many readers of that publication are curious for more information. Other, freely available, news coverage of the "Camden Ripper" can be accessed here, here, and here.
Posted at 12:04 by Howard Bashman



Mandamus dress code: The home page of the U.S. Court of Appeals for the Third Circuit is now providing links to petitions for writ of mandamus filed in two very large, related asbestos bankruptcy cases pending in the District of Delaware. One of the petitions was filed by my friend Roy T. Englert, Jr. In that proceeding, the federal district judge has already filed his response to the petition, and the Third Circuit has ordered oral argument to occur in Philadelphia on the morning of Friday, December 12, 2003. (By then I should be back in Philadelphia from my visit to one of the Third Circuit's most far-flung oral argument locations, so perhaps I'll have time to attend the argument and provide a report.)

The Third Circuit's order scheduling oral argument contains an "invitation" to the federal district judge to appear and participate in the oral argument either in person or through a representative. This sort of an "invitation" is perhaps similar to the type of invitation that the Supreme Court of the United States gives to the Solicitor General's Office when seeking input on whether to grant certiorari -- the invitee does not have the option to decline.

And this raises in my mind the following question. If the U.S. District Judge appears in person to argue before the Third Circuit in connection with the mandamus proceeding, should the U.S. District Judge wear his judicial robe, or simply appear in regular business attire sans robe. Of course, when judges are litigants in their personal capacity they shouldn't wear the judicial robe while present in court. But in a mandamus proceeding the trial judge is a litigant in his or her official capacity, thus perhaps allowing for the judicial robe to be worn at the podium. I'd be curious to hear from readers of this blog any thoughts they have on the subject.
Posted at 11:49 by Howard Bashman



"Avoiding democracy": Town Hall yesterday posted an essay by John Leo that begins, "Some admire the gay-marriage ruling in Massachusetts. Some don't. But surely the heart of the story is the stupefying arrogance of the state's Supreme Judicial Court. "
Posted at 10:35 by Howard Bashman



"DaimlerChrysler 'merger of equals' put on trial; Kerkorian lawsuit that claims deal was really a takeover heads toward climax next week": This article appears today in The Detroit News.
Posted at 10:23 by Howard Bashman



"Judges convene to discuss reform; Group seeks ways to block derailment of Kentucky cases": The Courier-Journal today contains this report.
Posted at 10:01 by Howard Bashman



"High court tosses records off Internet": This article appears today in The Orlando Sentinel.
Posted at 09:45 by Howard Bashman



"Top UK judge slams Camp Delta; One of Britain's most senior judges has condemned the US over the detention of terror suspects at Guantanamo Bay." BBC News provides this report.
Posted at 09:43 by Howard Bashman



"Perdue urges faith-based services law": This article appears today in The Atlanta Journal-Constitution.
Posted at 09:30 by Howard Bashman



FindLaw commentators: Today Michael C. Dorf has an essay entitled "Could Justice Scalia's Affirmative Action Dissent Become a Self-Fulfilling Prophecy?" And yesterday Julie Hilden had an essay entitled "The Supreme Court Considers Whether a Privacy Act Plaintiff Can Recover $1000 Even Without Proof of Damages."
Posted at 06:40 by Howard Bashman



Today is the final day of The Honolulu Advertiser's four-part series on the Supreme Court of Hawaii: Today's newspaper contains articles headlined "Functional or not, 'it's the chief's court'" and "Commission's influence far-reaching." I have previously provided links to the articles that appeared on day one, day two, and day three of the series.
Posted at 06:33 by Howard Bashman



In Wednesday's newspapers: In The New York Times, Adam Liptak reports that "Sniper Suspect's Life Recalled in Testimony." In related news, "Muhammad May Face Additional Trials." An article reports that "Senate Rejects Plea for Extra Year of Filing for 9/11 Awards." In news from New York, "Appeals Court Overturns Execution." An article is headlined "Gays Respond: 'I Do,' 'I Might' and 'I Won't.'" In other news, "Debt Is Seen Taking Toll on Jackson's Lavish Style." An obituary is entitled "W. Fred Turner, 81, Who Defended Indigent in Key Trial, Dies." And Harvey Fierstein has an op-ed entitled "You Better Watch Out."

The Washington Post reports that "Muhammad Is Returned to Pr. William Jail." In other news, "Pentagon To Review Rules for Tribunals." An article reports that "Chaplain's Release Comes With New Charges." In other news, "Jurors Say Hinckley's No Threat; Hospital Staff to Outline Possible Unguarded Visits." In business news, "Democrats Decry 'Compromise' on FCC Rule." In local news, "Pr. George's Bill Targets Strip Clubs"; "Slaying Suspect, 15, Won't Be Tried as Adult; City's Corporation Counsel Issues Decision in Shooting Outside Anacostia High"; and "Disabled Sue Hospital Center; Ex-Patients Allege Rights Violations, Inadequate Care." Editorials are entitled "Cooperate, Mr. Bloomberg" and "A Time for Debate." Courtland Milloy has an op-ed entitled "Fear Continues To Masquerade As Justice." David S. Broder has an op-ed entitled "A Day to Toast Common Bonds." And a letter to the editor appears under the heading "Nothing to Celebrate."

Finally, The Christian Science Monitor reports that "New laws target increase in acts of ecoterrorism; They seek to curb arson, property damage, and threats of violence, but critics say the penalties stifle valid dissent."
Posted at 06:00 by Howard Bashman



Tuesday, November 25, 2003
Elsewhere in Tuesday's newspapers: The Los Angeles Times reports that "Muhammad Sentenced to Death; Jurors, once split, say the sniper's lack of remorse and their fears that he might kill again led to the unanimous decision." In other news, "Employers Gain Harassment Suit Protection; State high court rules that if a strong policy exists on the issue, the burden falls on a worker to report incidents." An article reports that "Jailed Chaplain Decries Treatment; Army captain, a Muslim who worked with terrorist suspects at the U.S. prison in Cuba, says he's been blocked from practicing his faith." In news from Oregon, "Two Sentenced in Terrorism Conspiracy; The 'Portland Seven' members who tried to join the Taliban to fight the U.S. rail against the government before getting 18-year terms." In news pertaining to Michael Jackson, "Jackson Secretly Taped on Jet; The flight company notifies media outlets after the pop star and his lawyer are videotaped while flying to surrender to authorities." An article reports that "Probation Granted to 3 Who Grew, Sold Pot as a Medicine." And in related coverage, Patt Morrison has an essay entitled "There's a Word for Some People Who Try to Assist the Sick: Felon."

The Washington Times reports "Death for Muhammad"; "Weekend of deliberations swayed reluctant jurors"; and "Governor has say to extradite." In related news, "Sniper didn't need skills." An article reports that "Senate GOP backs leak investigation." In other news, "Town orders guns in all homes." An editorial is entitled "Meting out justice." And Bruce Fein has an op-ed entitled "'Mainstream' misnomer."

USA Today reports that "Va. jury recommends death for D.C. sniper; Juror cites 'total lack of remorse'" and that "Muhammad 'own worst enemy'; Sniper's steps toward appeal are all uphill, legal analysts say." And an editorial is entitled "Pursuit of death for sniper ensures lengthy appeals," while Michael Rushford has an op-ed entitled "Muhammad sentence is just."

The Boston Globe reports that "Colleges trail prisons in funds; Report hits state cuts in higher ed." In other news, "Cambridge endorses same-sex marriage." An article reports that "Execution decision will be up to jurors; Judge rules that Sampson is eligible." In other news, "US releases 20 detainees, transfers 20 more to Cuba." In local news, "Legislature drops stem cell support; Action is a victory for Catholic Church." Editorials are entitled "Same-sex semantics" and "Under attack -- by the FBI." And columnist Brian McGrory has an essay entitled "For Reilly, a silent court."
Posted at 23:30 by Howard Bashman



Available online at law.com: Jason Hoppin has an article headlined "Cause and Effect: Government lawyers aiming for the bench may want to hand off political hot potatoes." And in news from California, "Punitive Damages Take Big Hit: 5th District takes broad view of 'State Farm v. Campbell,' shrinks $290 million award to $23.7 million" and "Employers With Harassment Programs Can Limit Damages."
Posted at 22:44 by Howard Bashman



"Chaplain Held in Espionage Case Is Freed": Neil A. Lewis of The New York Times provides this report. The Associated Press reports that "Ex-Muslim Chaplain at Guantanamo Charged." Reuters reports that "US brings new charges against Guantanamo chaplain." BBC News reports that "US chaplain faces fresh charges." The Knight Ridder News Service reports that "Muslim Army chaplain released, faces new charges." And Agence France-Presse reports that "US Guantanamo chaplain accused of adultery and pornography."
Posted at 22:15 by Howard Bashman



"Hatch suspends GOP aide; Source of leaks from Judiciary Committee found": Tomorrow's edition of The Hill will contain this report. The Associated Press reports that "Senate Republican Staffer Put on Leave." Reuters reports that "Republican Aide Improperly Got Democratic Memos." And Agence France-Presse reports that "Senate Committee sidelines staffer after computer files purloined from Democrats."
Posted at 22:06 by Howard Bashman



"Moore asks Thompson to step down from Commandments case": The Associated Press reports here that "Attorneys for former Alabama Supreme Court Chief Justice Roy Moore have asked a federal judge to step down from hearing any future arguments in the case involving Moore's 5,300-pound Ten Commandments monument."
Posted at 20:44 by Howard Bashman



View online today's speech by U.S. Senator John Cornyn (R-TX) on the floor of the U.S. Senate about the judicial confirmation imbroglio: Simply click here (Real Player required; 16 minutes and 30 seconds).
Posted at 20:40 by Howard Bashman



Maryland-based federal trial court refuses to dismiss resident's challenge to display of Ten Commandments monument in a public park in Frederick, Maryland: You can access today's ruling of the U.S. District Court for the District of Maryland at this link. Interestingly, the monument actually lists Eleven Commandments, even though it supposedly was donated to the town as a promotion for the Cecil B. DeMille film "The Ten Commandments." In late 2002, Frederick, Maryland sold both the monument and the land on which it sits to Fraternal Order of Eagles Aerie No. 1067. By so doing, Frederick managed to gain the dismissal of a lawsuit that the ACLU had filed to challenge the monument. But today's ruling makes clear that Frederick's sale of the monument and the land on which it resides may not suffice to free the town from all liability. (Thanks much to the reader who forwarded a copy of this ruling to me, and to the good folks at SCOTUSblog for hosting that copy of the ruling on their server.)
Posted at 19:33 by Howard Bashman



On remand for reconsideration from U.S. Supreme Court, California Court of Appeal for the Fifth Appellate District decreases punitive damages award against Ford Motor Co. from $290 million to $24 million: You can access today's ruling at this link. In news coverage of the ruling, David Kravets of The Associated Press reports that "Court Reduces $290 Million Verdict Again," while Reuters reports that "California Court Hits Ford with $23.7 Mln Penalty."
Posted at 19:32 by Howard Bashman



Fifth Circuit decides appeal involving challenges to regulation of sexually oriented businesses in Houston, Texas: You can access today's lengthy opinion at this link.
Posted at 19:17 by Howard Bashman



"Common-law marriage is put asunder: A decision by a state court abolishing such unions has some couples feeling they are in matrimonial limbo." This article appears today in The Philadelphia Inquirer.
Posted at 17:32 by Howard Bashman



The book is closed on lawsuit between The Library Hotel and the owner of the Dewey Decimal System: See this press release issued yesterday. And The Associated Press reports that "Library service, hotel settle Dewey Decimal debate."
Posted at 17:14 by Howard Bashman



Among today's nominations from The White House: "Curtis V. Gomez, of Virgin Islands, to be Judge for the District Court of the Virgin Islands for a term of ten years, vice Thomas K. Moore, term expired." This nomination is noteworthy because, as Judge Moore wrote in a recent opinion (see footnote 11), "No other President, Democrat or Republican, has ever refused to reappoint a sitting district judge in the Virgin Islands who was willing and able to serve another term."
Posted at 16:52 by Howard Bashman



Fourth Circuit grants total of two hours for oral argument in federal government's appeal in Zacarias Moussaoui case: As a docket entry today explains, each side will argue for half an hour in the unsealed portion of the argument, and each side will argue for half an hour in the sealed portion of the argument. (Admittedly, the docket entry in question could probably be worded a bit more clearly, but the foregoing represents what I think the entry intends to communicate.)
Posted at 16:35 by Howard Bashman



The Associated Press is reporting: "Md., La. Want Muhammad on Trial Next" and "Sniper Suspect Malvo's Defense Builds Case."
Posted at 16:04 by Howard Bashman



"Judge bucks governor on judicial pay": The Chicago Tribune reports here today that "In a decision that challenges Gov. Rod Blagojevich's authority over another branch of government, a Cook County judge ruled Monday that he and more than 900 other Illinois judges deserve a 2.8 percent cost-of-living increase the governor blocked to help balance the state's budget."
Posted at 14:47 by Howard Bashman



"Williamsburg library suspends privileges of man who tore gay magazine": The Associated Press provides this update on a story I previously noted here. And The Daily Press of Hampton Roads, Virginia reports that "JCC library patron loses privileges after tearing magazine; Gay magazine cover offended patron."
Posted at 14:30 by Howard Bashman



Copyright law and computer databases: Seventh Circuit Judge Richard A. Posner issued this interesting opinion today on behalf of a unanimous three-judge panel.
Posted at 13:30 by Howard Bashman



You visit a blog, causing the blog's owner to give money to charity: Sound too good to be true? It is true, according to this post from Law Professor Jack Bogdanski.
Posted at 13:14 by Howard Bashman



"French juror barred for headscarf": BBC News provides this report.
Posted at 13:03 by Howard Bashman



In gay marriage-related commentary: Andrew Sullivan has an essay online at The New Republic entitled "Faith Heelers." And at National Review Online, W. James Antle III has an essay entitled "It's Not Just the Judges: Massachusetts marriage advocates face uphill battle."
Posted at 12:55 by Howard Bashman



In today's issue of The Harvard Crimson: An article reports that "City Council Will Not Speed Gay Marriage; Council votes to follow Mass. Supreme Court's timetable." An editorial is entitled "Acting Unwise on Solomon: Summers' refusal to challenge amendment in court betrays Harvard's dedication to equality." And John G. Palfrey Jr. (whose blog you can access here) has an op-ed entitled "Know Your Copy-Rights."
Posted at 12:05 by Howard Bashman



"The Making of the Corporate Judiciary: How big business is quietly funding a judicial revolution in the nation's courts." The November / December 2003 issue of Mother Jones magazine contains this article. Regrettably, only the beginning of the article is freely accessible online.
Posted at 11:55 by Howard Bashman



"Federal Judges and Fearing the 'Floodgates of Litigation'": "How Appealing" reader and University of Pennsylvania Law School student Toby J. Stern has figured out how to get one's law review article mentioned here -- write about an interesting subject and include a citation to me (see footnote 85 on page 13 of the PDF document). You can access Toby's article, published in the latest issue of the University of Pennsylvania Journal of Constitutional Law, at this link.
Posted at 11:41 by Howard Bashman



"State court blunts harass law; Damages could be limited if incident wasn't reported": The San Francisco Chronicle today contains this report on a ruling that the Supreme Court of California issued yesterday.
Posted at 11:36 by Howard Bashman



But who will sue "Big Fat" on their behalf? Today's edition of The New York Times reports that "Fast-Food Nation Is Taking Its Toll on Black Bears, Too."
Posted at 10:43 by Howard Bashman



"High court vacates death sentence against Syracuse-area killer": The Associated Press provides this coverage of the ruling that is the subject of my post immediately below.
Posted at 10:41 by Howard Bashman



New York State's highest court overturns death sentence imposed under that State's new death penalty law: The Court of Appeals of New York has previously described the case as follows (see page 20 of this PDF document):
This case marks the second time the Court of Appeals will review a death sentence imposed under New York's 1995 capital punishment law. The statute provides that appeal is mandatory and comes to the state's highest court directly from the trial court.

Defense counsel for James F. Cahill III conceded at trial that he assaulted his wife, Jillian Cahill, with a baseball bat during an argument at their home in the Town of Spafford on April 21, 1998, two weeks after they signed a separation agreement. She suffered severe head injuries and was taken to University Hospital in Syracuse, where she remained for the next six months. Prosecution witnesses testified that Cahill entered her hospital room disguised as a janitor after hours and poisoned her with a lethal dose of potassium cyanide on October 27, 1998. The defense contended that his conduct was caused by his deteriorating emotional state after the breakup of his 10-year marriage and that none of the aggravating factors necessary for a first degree murder conviction were present.

The jury convicted Cahill of two counts of first degree murder: one count of felony murder based on a theory that the murder was committed in the course of a burglary (an illegal entry at the hospital), and one count of "witness-elimination" murder based on a theory that Cahill killed his wife to prevent her from testifying against him in the assault case. In the penalty phase, the jury returned a sentencing verdict of death on both counts. The jury also found Cahill guilty of first degree assault and two counts of fourth degree criminal possession of a weapon, for which the judge imposed a consecutive sentence of 12˝ to 25 years in prison.

Extensive briefings by both sides cover a broad array of disputed issues ranging from pretrial publicity, consolidation of charges and jury selection to constitutional claims challenging the capital punishment statute and the death sentence in this case. The Attorney General has intervened in the case to defend the constitutional validity of the statute.

Amicus curiae briefs challenging the statute have been filed by the New York Civil Liberties Union and by a group of legal figures and organizations opposed to the death penalty.

The Court of Appeals decided its first capital case, People v Darrel K. Harris (98 NY2d 452), on July 9, 2002. In addition to Cahill, the Court has five more capital appeals pending.
Today's ruling can be accessed at this link (179-page PDF document).

In September 2003, The New York Law Journal reported that "Death Penalty Appeal to Be Argued Before New York High Court; 1995 law raises issues from constitutional to procedural." And you can view a Webcast of the oral argument in this appeal via this link.
Posted at 09:55 by Howard Bashman



In Tuesday's newspapers: The Washington Post reports that "Jury Sentences Muhammad to Death; Defendant Stoical, Panel Emotional as Sniper Trial Ends"; "Experts Say Many Areas of Case Are Grounds for Appeal"; "Jurors Deemed Sniper Still Too Dangerous"; "No Remorse? No Mercy. A Killer Gives No Hint of Contrition, and Gets Death"; and "Verdicts Bring Strong But Varied Emotions." In somewhat related news, "Malvo's Father Recalls 'My Prized Son'; Defendant Ignores Crying Witness, First to Recount His Troubled Past." In other news, "Canadian Sent to Mideast Files Suit; Deportee Alleging Torture Seeks Redress From Jordan, Syria, U.S." In business news, "Compromise Puts TV Ownership Cap at 39%." In local news, "A Conduit for Danger on Trial; Md. Man's Legally Purchased Guns Turned Up in Crimes." An article reports that "Lawyer Asks Bush to Free Chaplain." Columnist Marc Fisher has an essay entitled "Flawed Process Produced A Fair Jury." And letters to the editor appear under the headings "The Sentence and the Toll in the Sniper Case" and "Gay 'Attack' on Marriage? Hardly."

The New York Times reports that "Sniper Jury Cites Lack of Sorrow for Death Sentence." Adam Liptak reports that "Father of Sniper Suspect Testifies for Son's Defense." An article is headlined "Young Killer: Bad Seed or Work in Progress?" In news from Connecticut, "Skakel's Defense Team Appeals Conviction in 1975 Murder." An article reports that "Media Ownership Deal Reached, Clearing Way for Big Spending Bill." In local news, "Redrawn Districts Examined in Federal Trial" and "Judge Censured for Free Work by Accountant." And letters to the editor appear under the heading "Gay Marriage and Our Society."
Posted at 08:44 by Howard Bashman



Buzzflash interviews Nan Aron, president of Alliance for Justice, on the subject of President Bush's judicial nominees: You can access the interview here.
Posted at 08:35 by Howard Bashman



In news from the University of Texas: The Daily Texan reports today that "New plan includes race in admissions; UT submits proposal to System in effort to achieve diversity."
Posted at 08:33 by Howard Bashman



Today is day three of The Honolulu Advertiser's four-part series on the Supreme Court of Hawaii: Today's newspaper contains articles headlined "High court keeps low profile" and "Justices' tense relationship 'needs some work'" and a chart entitled "Oral arguments before the Supreme Court." I have previously provided links to day one and day two of the series.
Posted at 08:28 by Howard Bashman



In news and commentary from Alabama: The Birmingham News today reports that "Unabomber lawyer joins Rudolph team" and yesterday reported that "State law library hires company to tape Moore trial." And that same newspaper today contains an editorial entitled "The blame game: Silly lawsuits are misguided defense of chief justice."
Posted at 06:42 by Howard Bashman



Mandatory minimum or statutory maximum? The Associated Press reports that "Ky. Law Mandates Bathing Once a Year."
Posted at 06:36 by Howard Bashman



And in sad news from Florida: The Florida Times-Union reports here today that "Nimmons, federal judge, dies at 65; Longtime jurist also served in state courts." (Via "Abstract Appeal.")
Posted at 06:33 by Howard Bashman



"Tourist's suit hinges on 'sexual exploitation'": The Daytona Beach News-Journal reported here on Sunday that "A woman suing Playboy Entertainment Group and two local companies over her inclusion in a racy video said she was shocked 'beyond embarrassment' after learning of commercial videos featuring images of her baring her breasts during a Spring Break wet T-shirt contest here in 2001." (Via "Abstract Appeal.")
Posted at 06:30 by Howard Bashman



"Another Rice Grad" recounts Seventh Circuit Judge Richard A. Posner's lecture yesterday at the George Mason University School of Law: See this post at "Southern Appeal," where ARG is guest-blogging.
Posted at 06:22 by Howard Bashman



From Monday's broadcast of NPR's "All Things Considered": You can listen to each of the following reports by clicking on its title (Real Player required): "Sniper Trial Jurors Explain Death Penalty Call"; "Boycott Stalls Planned Parenthood Clinic"; and "Blogs Open New Political Front."
Posted at 00:00 by Howard Bashman



Monday, November 24, 2003
Elsewhere in Monday's newspapers: The Washington Times reports here that "Gay 'marriage' opponents push civil-union bill" and here that "Biden: Gay 'marriage' inevitable." In other news, "Girl abandons Caucasian Club effort." An article reports that "Wal-Mart lawsuit seen as trend for U.S. employers." In news from Virginia, "Jurors to hear 1 more tape." The latest installment of Nat Hentoff's continuing effort to rally support for D.C. Circuit nominee Janice Rogers Brown is entitled "Due process denied." And Steve Chapman has an op-ed entitled "Would Oswald have been freed?"

The Boston Globe reports here that "Frank sees referendum for ruling on gay marriage" and here that "Gay marriage debated at Sunday's services; Some churches back SJC ruling; others not as receptive." And columnist Cathy Young has an essay entitled "SJC ruling won't end gay debate."

The Los Angeles Times reports that "Counterfeit Cigarettes Force Tobacco Firms to Fight Back." An article is entitled "The final act: When patients are unable to make decisions -- and doctors and loved ones face life-or-death choices -- a living will can be a powerful tool." A related article is headlined "Putting legal clout behind your wishes." And Michael Bochenek and Javier Stauring have an op-ed entitled "Keeping Kids in Tiny Cells Downtown Is Cruel, and Probably Illegal; The sheriff is holding juveniles in the Men's Central Jail despite a finding by Los Angeles County that the facility isn't fit for them."
Posted at 23:47 by Howard Bashman



Available online at law.com: Jonathan Ringel reports that "Sarbanes-Oxley Powers Weighed by 11th Circuit; Judges ask whether law can revive old claims." An article is headlined "Beyond Borders: Appeal challenges applicability of Vermont civil union." In news from New York, "Law Professor Loses Tax Fight With State; 'Convenience of employer' allows New York to collect on earnings taxed in Connecticut" (plus access here today's ruling by the New York State Court of Appeals).

Legal Times (free registration required) contains an essay from Randolph J. May entitled "Does High Court Spot Trends? Though public opinion may shift quickly, the justices must not play politics with law." And Michael J. Gaynor has an essay entitled "Faith of Our Fathers: History teaches that our Constitution was written to support and encourage religious belief."
Posted at 23:33 by Howard Bashman



Pro bono update: Earlier today it was my pleasure to accept the Third Circuit's most recent request that I perform pro bono work on an appeal now pending before that Court. The case I agreed to work on today is the fourth pro bono appeal that I will have handled at the request of the U.S. Court of Appeals for the Third Circuit since this blog began in May 2002. As careful readers from this blog's inception know well, I have compiled a 2-1 record in the three pro bono Third Circuit appeals that have concluded since this blog came into existence.

Today's case, like the most recent pro bono Third Circuit case on which I just completed working, has me serving as amicus in support of affirmance of the federal district court's order that is being challenged on appeal. So, once again, I don't represent a client; rather, I have been asked to argue in support of a result. I don't know too much about the case yet, other than that it arises in the context of a shareholder derivative suit and involves an order denying a request for attorney's fees. The order that I have been asked to defend was entered by D. Brooks Smith before he left the U.S. District Court for the Western District of Pennsylvania to join the Third Circuit. Coincidentally, one of my earlier pro bono appellate victories involved obtaining the reversal, on behalf of a previously pro se prison inmate, of then-District Judge Smith's order dismissing that inmate's federal civil rights claim based on the resolution of a question of law over which other federal courts of appeals had previously divided. The case I agreed to work on today is scheduled to be argued before the Third Circuit in January 2004. If the appeal turns out to raise interesting issues (and there's a good chance that it does), perhaps I'll have more to say about this matter at a later date.
Posted at 23:15 by Howard Bashman



At least it wasn't pronounced "Pepsi": My suggestion that the National Constitution Center create its own coffee table book is gaining support. A reader emails:
I think the NCC coffee table book is an excellent idea. I was in Philadelphia a few weeks ago, and visited the Center three times, but still felt like there was a lot more I could have done. I especially enjoyed the short film with Ben Stein. Such a book could be particularly useful for parts of the museum like the beginning with all the mini-bios--I didn't get through even half of them and I suspect that most people don't.

A small criticism: at the beginning, there is a section where you can push a button and listen to excerpts from books that influenced the framers (Blackstone, Coke, Montesquieu, Beccaria, etc.). When you push the button for Coke's Institutes, the reader mispronounces "Coke" (it's properly pronounced "cook").
Indeed it is. The coffee table book I envision would not contain an improper (or indeed any) pronunciation of "Coke." And speaking of beverages, you should hear how many native Philadelphians pronounce "water."
Posted at 23:05 by Howard Bashman



"Big award in bug case stirs debate": Jan Crawford Greenburg, who covers the U.S. Supreme Court for The Chicago Tribune and serves as a commentator for The NewsHour with Jim Lehrer, today has this article about a decision that the U.S. Court of Appeals for the Seventh Circuit issued over one month ago. You can access my original report on the bedbug ruling at this link.
Posted at 22:59 by Howard Bashman



"Jury in Washington sniper trial delivers death verdict; The sentence for John Allen Muhammad could prove difficult to overturn on appeal." Warren Richey will have this article in Tuesday's edition of The Christian Science Monitor.
Posted at 21:05 by Howard Bashman



I should get a Movable Type-powered blog: So that when Blogger and Blog*Spot aren't working (as happened earlier this evening), I could post there as a back-up.
Posted at 21:00 by Howard Bashman



"Senator Schumer and the Criteria for Judicial Selection": Law Professor Lawrence Solum offers this lengthy post, accompanied by charts and graphs.
Posted at 17:23 by Howard Bashman



"Student Will Not Be Disciplined for Memos": This article appears today in The Harvard Crimson. It involves blogging (and this blog in particular).
Posted at 16:46 by Howard Bashman



"The Navy's secret brig: Prison's mission evolves as terror suspects arrive." This interesting article (registration required) appeared in yesterday's issue of The Charleston Post and Courier. (Via "The Volokh Conspiracy.")
Posted at 16:10 by Howard Bashman



If you think it's bad having a comic book character named after you, imagine having a dinosaur named after you: Eugene Volokh has posted online an amicus brief that he and another member of "The Volokh Conspiracy" have filed in the U.S. Supreme Court today. I've read many an amicus brief filed in that Court, but I don't recall any others that caused me to laugh out loud when reading the "Interest of Amici Curiae" section. I guess the passage about a dinosaur's having been named after Michael Crichton is technically relevant to the subject matter of the case in question. You can access the opinion of the Supreme Court of Missouri from which U.S. Supreme Court review is sought at this link. And separately, Eugene asks here whether one of his clients is using an ungrammatical name. I guess it's better to have an appellate lawyer question whether his client is ungrammatical than the obverse.
Posted at 15:55 by Howard Bashman



"Womb with a View: Why the feminists can't admit that most women favor the partial-birth abortion ban." Noemie Emery today has this essay online at The Weekly Standard.
Posted at 15:33 by Howard Bashman



A reader writes her own blog post: A reader from Alaska emails:
Is there any question that the Ninth Circuit is too big? Did you see the order that the court issued on Friday in Abreu-Reyes v. INS, 99-70542? A three-judge panel has figured out (prompted by a "motion for reconsideration of petition for review") that its decision in the case conflicted with an en-banc opinion that had been released four days earlier, so on Friday it withdrew the decision and the mandate. It is somewhat disconcerting that a panel can issue a decision without being aware that the en-banc court had decided the same issue differently a few days before, but what is even worse is how long it took for anyone to notice. The conflicting opinions were issued in June 2002.
You can access Friday's Ninth Circuit order at this link.
Posted at 15:05 by Howard Bashman



The Associated Press is reporting: You can access articles headlined "Sniper Mastermind Receives Death Sentence" and "U.S. Releases 20 Guantanamo Prisoners."
Posted at 15:00 by Howard Bashman



A unanimous three-judge Seventh Circuit panel has, in an opinion by Circuit Judge Frank H. Easterbrook, reversed the dismissal of an antitrust action: Need I say more? You can access the opinion here.
Posted at 13:50 by Howard Bashman



"Senate Seizes Judiciary Data": Roll Call today is reporting that "The Senate Sergeant-at-Arms took possession of the Judiciary Committee's four computer servers Friday and formally opened an investigation into how more than a dozen memos written by two Democratic Senators ended up in the hands of a pair of newspapers." The full text of the article is available only to subscribers. Thanks to Rick Hasen for the pointer via email.
Posted at 13:45 by Howard Bashman



Coincidence? One week ago today, I noted here a news report on a study finding that racism makes people stupid. Today, The Associated Press reports here that "A bullet fired in the air during a Ku Klux Klan initiation ceremony came down and struck a participant in the head, critically injuring him, authorities said."
Posted at 13:29 by Howard Bashman



Modernity wins a round in the Supreme Court of California: California's highest court has issued its rulings in the three decisions I previewed here this morning. The end of the opinion holding that one co-conspirator may be held liable for felony murder due to the death of another co-conspirator in the arson that constitutes the underlying felony contains the following footnote:
We note that Chief Justice George was outside California (attending a board meeting of the national Conference of Chief Justices, of which he is currently president) when he communicated his concurrence in this opinion by transmitting to the Clerk of the Court (at the court's chambers in San Francisco), by facsimile, a signed copy of the signature page of this opinion indicating his concurrence. We conclude that the Chief Justice's concurrence in the opinion in this manner is valid, and that prior decisions of this court indicating that appellate justices may participate in a decision only if they are physically within California at the time they formally sign an opinion or order (see Cothran v. San Jose Water Works (1962) 58 Cal.2d 608, 612; People v. Ruef (1910) 14 Cal.App. 576, 623-632) are no longer persuasive and should be overruled.

Under the California Constitution, absent a waiver by the parties, appellate justices must be present at oral argument in order to participate in the appellate decision and judgment (see Cal. Const., art. VI, §§ 2, 3; Moles v. Regents of University of California (1982) 32 Cal.3d 867, 870-874), but when justices are present at argument, nothing in the California Constitution or statutes provides that they are disabled from participating in the appellate decision simply because they are temporarily outside of the state at the time they communicate to the Clerk of the Court their concurrence in a proposed opinion (or submit to the clerk a separate proposed opinion for circulation to the other participating justices). In a multijudge appellate court, the operative act that gives legal effect to an appellate court opinion or order is the formal filing of the opinion or order by the Clerk of the Court. (See Cal. Rules of Court, rules 24, 29.4.) So long as the clerk is authorized by the court to file the opinion or order, and the filing occurs in California, the legally effective judicial act is performed in California. To the extent that the more restrictive rule set forth in the early California cases cited above may have reflected the vagaries and unreliability of the communication systems of the time, modern methods of communication have rendered such concerns obsolete. (See, e.g., Gov. Code, § 5500 et seq. [Uniform Facsimile Signature of Public Officials Act]; Civ. Code, § 1633.1 et seq. [Uniform Electronic Transactions Act].)

Contemporaneously with the filing of the decision in this case, we shall amend the Internal Operating Practices and Procedures of the California Supreme Court to clarify the procedures justices may utilize to communicate their vote on a matter pending before the court.
You can access the complete opinion in the case at this link.
Posted at 13:00 by Howard Bashman



Today's executive business meeting of the Senate Judiciary Committee has been canceled: See this announcement.
Posted at 12:05 by Howard Bashman



This past Saturday's edition of C-SPAN's "America and the Courts": The program is described as follows:
Chief Justice of the United States William Rehnquist speaks with state chief justices from supreme courts around the nation at a conference in Williamsburg, Virginia. They discuss differences in state and federal constitutional law. This program was recorded on Nov. 14, 2003.
You can view the show online (Real Player required) by clicking here.
Posted at 11:39 by Howard Bashman



"Dangling Nominees": See the second item in this article from today's Washington Post, which begins "Even without Democratic filibusters to trip them up, about a dozen of President Bush's nominees for federal appeals courts are likely to be left dangling when Congress adjourns, casualties of the legislative calendar, who will be forced to wait until next year for action by the Senate."
Posted at 11:33 by Howard Bashman



Three interesting decisions expected today from the Supreme Court of California: At 10 a.m. pacific time today, the Supreme Court of California is expected to announce decisions in cases presenting the following issues:
Case one: Does the felony-murder rule apply where an accomplice accidentally kills himself while jointly engaged with the defendant in the perpetration of the underlying felony of arson?

Case two: Does the "felonious taking" element of the crime of carjacking require the asportation, or actual movement, of the motor vehicle?

Case three: In an employee's action under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) seeking damages for sexual harassment committed by a supervisor, may the employer assert a defense based upon the employee's failure to promptly use the employer's internal complaint procedures? (Cf. Burlington Industries v. Ellerth (1998) 524 U.S. 742; Faragher v. City of Boca Raton (1998) 524 U.S. 775.)
The decisions, once they have issued, can be accessed via this link.
Posted at 11:14 by Howard Bashman



"Deputy's ex-wife who sought protection order denied pension": This article appears today in The Seattle Post-Intelligencer. You can access last week's ruling by the Court of Appeals Division II of the State of Washington at this link.
Posted at 10:58 by Howard Bashman



BREAKING NEWS -- The jury has sentenced John Allen Muhammad to receive the death penalty: Muhammad has been sentenced to death both on the terrorism count and the capital murder count. According to CNN, Muhammad will become the 28th person now residing on Virginia's death row. The Virginian-Pilot's "Sniper Trial Blog" offers more details.
Posted at 10:52 by Howard Bashman



BREAKING NEWS -- The jury has reached a decision on whether to sentence convicted DC-area sniper John Allen Muhammad to the death penalty or to life in prison without parole: So CNN has just reported. Announcement of the verdict is expected in about fifteen to twenty minutes.
Posted at 10:28 by Howard Bashman



On the agenda, part two: Thanks to the reader who emailed to point out that the agenda for today's business meeting of the Senate Judiciary Committee is accessible here.
Posted at 10:14 by Howard Bashman



My visit Saturday to the National Constitution Center: As previewed here, on Saturday I made my second visit to the National Constitution Center in Philadelphia. The details of my visit will be revealed elsewhere in due time. For now, two quick observations. First, the NCC continues to be a popular destination for visitors. Even late on a Saturday afternoon, a healthy crowd is present. Second, while it is easy to "see" the entire exhibition in an afternoon, it is impossible to take in all of the information that the museum has to offer without spending a whole lot of time there. Let me be among the first to call for the creation of a National Constitution Center coffee table book that includes photographs and the text of all of the information presented in the museum's permanent exhibition.
Posted at 09:55 by Howard Bashman



Available online at law.com: In addition to Tony Mauro's article reporting on a Second Amendment case in which the Justices of the U.S. Supreme Court are being asked to grant review (an article that I previously linked to here Friday night), you can access articles headlined "2nd Circuit Rules Statutory Rape a 'Crime of Violence'" and "Ex-Partner May Pursue Retirement Pay Claims."
Posted at 09:54 by Howard Bashman



Today is day two of The Honolulu Advertiser's four-part series on the Supreme Court of Hawaii: You can access here my coverage of, and links to, yesterday's articles. The following articles appear in today's newspaper: "Justice moves slowly, painfully"; "Liberal or conservative? Court defies easy labels"; and "Relationship with Lingle thaws after a deep freeze." And today's accompanying charts: "The caseload: Appeals awaiting action" and "The dispositions: Cases cleared."
Posted at 09:45 by Howard Bashman



On the agenda: The Web site of the Senate Judiciary Committee contains a notice of an executive business meeting scheduled for 10 a.m. today. The notice, however, does not as of this moment specify the agenda for the meeting.
Posted at 09:43 by Howard Bashman



"Gay Marriage Isn't An Issue For The Courts To Decide": Stuart Taylor Jr. has this essay in today's edition of National Journal.
Posted at 09:35 by Howard Bashman



"Myth of the 'Twinkie defense': The verdict in the Dan White case wasn't based on his ingestion of junk food." Carol Pogash had this essay in yesterday's edition of The San Francisco Chronicle.
Posted at 06:56 by Howard Bashman



"Yesterday's Papers: Times Warp." This "Talk of the Town" item appears in the December 1, 2003 issue of The New Yorker.
Posted at 06:50 by Howard Bashman



In Monday's newspapers: The Washington Post reports that "Gay Marriage Ruling Draws Derision, Praise." In news from Virginia, "Malvo Jury Sees Photos, but Not Actual Evidence." In other local news, "Behind Bars, a Recast Ramadan; At Md. Prison, Muslims Must Leave Some Traditional Practices Behind During Observance." Columnist Courtland Milloy has an essay entitled "Michael Jackson's Complicated Past May Clarify Much." And letters to the editor appear under the heading "Gay Marriage Under the Microscope."

Finally for now, The New York Times reports that "New U.S. Rules on Cell Numbers Create Uncertainty."
Posted at 06:30 by Howard Bashman



Sunday, November 23, 2003
"Amid Acceptance of Gays, a Split on Marriage Issue": This article will appear in Monday's edition of The New York Times.
Posted at 23:33 by Howard Bashman



Seventh Circuit Judge Richard A. Posner will speak tomorrow at the George Mason University School of Law in Arlington, Virginia: Thanks to Scott at the "Life, Law, Libido" blog for drawing to my attention that Judge Posner will tomorrow be delivering the final speech in that law school's Fall 2003 Law and Economics Lecture Series.

Coincidentally, at midnight on the morning of Monday, December 1, 2003, I will be posting online here the December 2003 installment of "20 questions for the appellate judge," for which Judge Posner is the interviewee. His answers have already arrived, and I can assure you that this will be one of the best "20 questions" interviews yet.
Posted at 23:20 by Howard Bashman



"Prosecutor has much to think about after choosing to deal with Ridgway": The Associated Press reports here that "Like any politician who breaks a promise, longtime King County Prosecutor Norm Maleng expected a heavy dose of criticism for letting the Green River killer escape death row. By and large, it hasn't come."
Posted at 23:10 by Howard Bashman



Elsewhere in Sunday's newspapers: The Los Angeles Times reports that "U.S. Anti-Porn Effort Is Found Wanting; Obscenity foes say their support for Atty. Gen. John Ashcroft hasn't translated into the aggressive crackdown they expected." In local news, "Lap-Dance Decision Cheers Strippers, Patrons; Customers hail the City Council's reversal of a ban on the lucrative practice, which community activists say fosters prostitution." In business news, "Archive a Smoking Gun for Tobacco Firm; Why British American released papers showing possible links to contraband sales remains a mystery." The Associated Press reports that "Forgetful Green Beret Misdiagnosed as Derelict; Sent home from Kuwait for court-martial, he was found to be dying of a rare brain disease." An op-ed by Law Professor Gerald F. Uelmen is entitled "Jackson Faces Tougher Laws." Charlotte Allen has an op-ed entitled "Some Folks Just Shouldn't Get Married; Gay unions undermine tradition and open the door to legalizing incest and polygamy." And letters to the editor appear under the headings "Government Shouldn't Decide Who Can Marry" and "Hacking the Law."

The Washington Times reports that "GOP claims win in judges talkathon." You can access here an article that begins, "John Allen Muhammad can expect to be executed in about three years if he gets the death penalty following his conviction in the first Washington sniper trial." In other local news, "Delegates want suspects jailed." And an op-ed by Terence P. Jeffrey is entitled "Manhandling marriage."

The Magazine section of The Boston Globe has a cover story headlined "Hot Pursuit: James McLaughlin is one of the most successful online detectives in America. Talking dirty and flirting openly in Internet chat rooms, he lures potential sexual predators to their arrest. But do his tactics cross the line?" And an article reports that "FBI probing taping of Md. Jewish school."
Posted at 22:40 by Howard Bashman



"He may need to take cover from the law; Man tore part of gay magazine, but that's illegal at the library": The Associated Press reports here from Williamsburg, Virginia that "John Callaghan was so disgusted by the cover of a national gay and lesbian newsmagazine at a library that featured two men about to kiss, he said he ripped it off and took it home with him. Now he could face criminal charges." And The Daily Press of Hampton Roads, Virginia reports that "Library considers magazine incident; Patron could be facing hefty penalty for tearing 'Advocate.'"
Posted at 22:30 by Howard Bashman



Today's Ten Commandments-related news and commentary: From Alabama, The Mobile Register contains an article headlined "Survey: Moore wrongly removed." The Associated Press reports that "Christians eye state's high court; The conservative groups are preparing a slate of candidates to run next year." An editorial in The Birmingham News is entitled "What sham? Donations don't prove political bias in Moore's trial." And an editorial in The Montgomery Advertiser is entitled "No conspiracies in leadership changes."

In news from elsewhere, The Gwinnett Daily Post reports that "Rally shows support for Commandments display." The Tallahassee Democrat reports that "Protesters rally against courts; Morality in American law at issue." And The State reports that "Rallies back judge in monument fight; At S.C. State House and across nation, protesters dub Ten Commandments justice a hero."

Finally, Ted A. Tatchio has an op-ed today in The San Antonio Express-News entitled "Three Commandments get job done."
Posted at 22:20 by Howard Bashman



"Massachusetts vs. Marriage: How to save an institution." The December 1, 2003 issue of The Weekly Standard will contain this article.
Posted at 22:15 by Howard Bashman



"Schiavo clash is rooted in cash: The dispute between Michael Schiavo and his in-laws began when Bob and Mary Schindler said he owed them money, court records show." This article appears today in The St. Petersburg Times.
Posted at 22:10 by Howard Bashman



"A record worth some praise": Robyn E. Blumner, a columnist for The St. Petersburg Times, today has this op-ed concerning D.C. Circuit nominee Janice Rogers Brown.
Posted at 21:50 by Howard Bashman



"Joe Bob Goes to the Supreme Court": The December 2003 issue of Washingtonian magazine contains an article by Joe Bob Briggs that the magazine describes in the following terms: "The Texas drive-in-movie critic spends opening day with the nine high-court justices, during which he encounters screaming protesters, graven images, and . . . well, see for yourself." Unfortunately, the text of the article isn't yet available online.
Posted at 21:37 by Howard Bashman



In the newsweeklies: The December 1, 2003 issue of Newsweek contains an article headlined "'My Mommies Can Marry': A ruling green-lighting gay marriage echoes loudly through the country—and in the 2004 campaign." And the December 1, 2003 issue of Time magazine contains an article headlined "Bush's Cool Operator: Bill Frist is the President's crafty Senate warrior with much on the line. Can the G.O.P. leader deliver?"

Update: Time has now made the rest of the contents of its December 1st issue available online, and the magazine also contains an article headlined "Popping The Question: Now that a Massachusetts court says gays can wed, will it go national? Not if conservatives can stop it."
Posted at 16:30 by Howard Bashman



You mean appellate judges in Hawaii are supposed to work hard for a living? I have always struggled with the question whether it is better to pursue an extraordinarily work-intensive occupation in an exotic location or in a location that's the equivalent of the earth's armpit. Coincidentally, today The Honolulu Advertiser begins a four-part series on the Supreme Court of Hawaii.

That newspaper's lead article is headlined "Supreme Court struggles as cases, criticism pile up." In related news, "Justices must juggle reviews, administrative tasks." Profiles of the five justices serving on the court appear in an item headlined "Top jurists represent diverse backgrounds." And you can access here a graphic depicting the role of Hawaii's top court.
Posted at 16:22 by Howard Bashman



"Attorney urges right-to-die discussion": Today's edition of The Lawrence Journal-World contains this report.
Posted at 16:20 by Howard Bashman



"Judge criticized for giving cases to one lawyer": This article appears today in The Cleveland Plain Dealer.
Posted at 16:18 by Howard Bashman



In today's edition of The Miami Herald: An article headlined "Tough judge holds fate of Tornillo in his hands" begins, "Adalberto 'Bert' Jordan, a federal judge before his 38th birthday, always excelled in the classroom. These days, the judge is still doing his homework -- more than 800 pages assigned by hundreds of teachers he's never met." Links to additional materials are presented at the bottom of the page containing this article.

And in other news, "Florida death sentence elicits outrage in Spain; Spaniards have raised $150,000 to pay for the Death Row appeal of Pablo Ibar, who was convicted of a 1994 triple murder in Miramar."
Posted at 16:11 by Howard Bashman



In Sunday's newspapers: In The Washington Post, Charles Lane reports that "Supreme Court Revisits Enemy Combatants; Bush Administration Cites 1950 Ruling to Justify Holding Foreign Nationals at Guantanamo Bay, Cuba." An editorial is entitled "Mr. Padilla's Hearing." Simon Lazarus has an op-ed entitled "Next: Roe v. Federalism." Emily Bazelon has an op-ed entitled "Trading Places Over Gay Marriages." And columnist Jerry Markon has an essay entitled "Looking for More Cooperation, Less Creativity."

The New York Times reports that "F.B.I. Scrutinizes Antiwar Rallies." In other news, "For Gay Couples, New Rituals at the Altar." In local news, "Paroled Cop Killer Met the Wrong Person at the Wrong Time, His Backers Say." An obituary is headlined "Edward Schempp, Who Fought School Bible Readings, Dies at 95." An editorial is entitled "Stonewalling the 9/11 Commission." And Adam Goodheart has an op-ed entitled "Small-Town Gay America."

Finally for now, online at OpinionJournal, David B. Rivkin and Lee A. Casey have an op-ed entitled "Guantanamo on Trial: The Red Cross makes a big mistake in siding with detained terrorists."
Posted at 16:00 by Howard Bashman



Gay marriage: In today's issue of The Boston Globe, you can access articles headlined "50% in poll back SJC ruling on gay marriage" and "10 years' work led to historic win in court" and a newsbrief headlined "City delays issuing same-sex licenses." That final items follows by one day an article headlined "Cambridge told to await Legislature." And columnist Jeff Jacoby today has an op-ed entitled "Gay ruling echoes Roe v. Wade." (At least Jacoby does not suggest that Earl Warren should be impeached.) In other coverage from Massachusetts, The Lowell Sun today reports that "Gay-marriage ruling sets off debate on court's course."

In news from elsewhere, The Arizona Republic today reports that "Arizona is on front line of gay-marriage conflict." The Los Angeles Times reports today that "Activists Look for Ways to Establish Gay Marriage in California." The Oregonian today reports that "Oregon cautious on gay marriages; Massachusetts and Vermont take steps for same-sex couples, while Oregon activists keep a lower profile." In coverage from Texas, The San Antonio Express-News reports that "Ruling offers gay couples hope, uncertainty," while The Dallas Morning News reports that "Texas senator calls for amendment to prohibit gay legal unions; She worries that schoolchildren will become confused." The Herald of South Carolina reports that "S.C. likely won't accept same-sex unions; Simrill introduced bill in 1996 that bars gay marriages from being recognized." And The Pittsburgh Post-Gazette today contains a news analysis headlined "Gay marriage an issue for 2004."

Finally for now, today's issue of The New York Times contains two other relevant Week in Review articles: "What Partisans Embrace, Politicians Fear" and "For Better or Worse: Marriage's Stormy Future."
Posted at 09:00 by Howard Bashman



Any questions: Google now ranks "How Appealing" on the very first page of responses generated when someone searches for the term "20 questions." And that's even before I publish next month's installment of "20 questions for the appellate judge," which you're sure to agree is one of the best yet. Of course, as I adverted to the other day, the best way to generate traffic to a blog appears to be via searches for a certain Paris Hilton video.
Posted at 08:50 by Howard Bashman



The Associated Press is reporting: In news from Wyoming, "Student challenges rule against same-sex dance dates." And in other news, "Ohio, county fined for keeping whites from adopting black kids."
Posted at 08:30 by Howard Bashman



Saturday, November 22, 2003
Tonight's Ten Commandments news: In news from Georgia, The Gainesville Times reports here today that "A Habersham County group says it will push to impeach a federal judge who ordered the county to remove public displays of the Ten Commandments. The Ten Commandments Support Committee also plans to appeal U.S. District Court Judge William O'Kelley's ruling, which was issued Monday." In related news, The Associated Press reports that "Group to appeal ruling to remove public displays of Ten Commandments." And The AP has a report from Atlanta headlined "About 100 show their support for public Ten Commandments displays."

The Daily Herald of Everett, Washington reports today that "Monument fight's legal bill could be costly for Everett."

And in news from Texas, the newest member of that state's Supreme Court turns out to be a Ten Commandments judge in his own right. Today's issue of The Houston Chronicle contains an article headlined "Local judge new member of state court; Will seek full term in 2004" that begins, "Scott Brister, a veteran Houston jurist who once posted the Ten Commandments in his courtroom, was sworn in Friday as the newest member of the Texas Supreme Court." Today's edition of The Fort Worth Star-Telegram reports that "Judge moving upstairs to appeals court." And The Dallas Morning News reports that "State high court appointee lauded."
Posted at 23:50 by Howard Bashman



"Blind woman loses bias case; Jury clears clinic in halting her insemination treatments": Today's issue of The Denver Post contains this report.
Posted at 23:45 by Howard Bashman



"R.I. bar association blast bias claims about judge": The Associated Press reports here that "Rhode Island Bar Association leaders said they are outraged by charges of racism and anti-Semitism stemming from US District Judge Mary Lisi's handling of the lawsuit brought by the mother of slain police Sergeant Cornel Young Jr."
Posted at 23:44 by Howard Bashman



Elsewhere in Saturday's newspapers: The Los Angeles Times reports that "Al Qaeda Saw Moussaoui as 'Cuckoo,' Defense Says; Attorneys argue suspect dreamed of flying a plane into White House, but did not conspire." In other news, "Sniper Jurors Seem Divided; Judge tells panel he expects a unanimous decision after question is raised about prospect of a lack of unanimity in Muhammad sentencing." An article reports that "Council Repeals Its Ban on Lap Dances; A campaign by strip club owners to put the issue on the 2005 ballot forces panel to reverse its position. Residents express outrage." In other news, "Hard Life for Jackson's Alleged Victim; The boy was treated for leukemia. His father pleaded no contest to charges of injuring his wife and cruelty to a child." In news from San Francisco, "File-Sharing Suit May Be Moved; SBC's fight against subpoenas may go to a court that has sided with the record industry." In other local news, "Court Upholds $9-Million Verdict Against Bell Helicopters in Crash." And today's editorial cartoon by Michael Ramirez looks at the recent gay marriage ruling from Massachusetts.

The Boston Globe reports that "Romney, AG take heat on marriage issue; Gay-rights ruling is clear, law groups say." And in other news, "Grieving 9/11 kin slow to seek compensation."

Finally, The San Francisco Chronicle reports that "Topless joint can't give money away; 4 S.F. nonprofits refuse $4,330 donation from a North Beach strip club."
Posted at 23:20 by Howard Bashman



"Defense Portrays Sniper Suspect as Indoctrinated": Adam Liptak will have this article in Sunday's issue of The New York Times.
Posted at 23:18 by Howard Bashman



"Same-Sex Unions Move Center Stage; After a Decade on Fringe, Gay Marriage Enters American Consciousness": This article will appear on the front page of Sunday's edition of The Washington Post.
Posted at 22:55 by Howard Bashman



"For Lawyer, It's Michael Jackson on Line 1, Scott Peterson on Line 2": This article will appear in tomorrow's issue of The New York Times.
Posted at 20:36 by Howard Bashman



Gay marriage: The Times-Picayune today reports that "Married and gay couples are not all that different; Census data reveal striking similarities." The St. Louis Post-Dispatch today contains an article headlined "Gay|Marriage: For many, those words don't go together." And Sunday's edition of The New York Times will contain a Week in Review article headlined "Gay Couples Follow a Trail North Blazed by Slaves and War Resisters."
Posted at 20:36 by Howard Bashman



"Guantanamo inmates' fate unresolved": If you care to see what Aljazeera.Net is reporting on this subject, click here.
Posted at 20:30 by Howard Bashman



"Legal challenge can't close OHA, DHHL, judge says": The Honolulu Advertiser reports here today that "A federal judge yesterday substantially pared down a court challenge to the legality of using state taxpayers' money to support two state agencies that offer programs that require participants to be of Hawaiian ancestry."
Posted at 20:29 by Howard Bashman



"Journalist: High Court may head to the center." Linda Greenhouse, who covers the U.S. Supreme Court for The New York Times, recently spoke at Dartmouth College, and yesterday's edition of The Dartmouth contained this report.
Posted at 20:22 by Howard Bashman



"Justice Dept.'s civil rights division retreating from activist roots": The Knight Ridder News Service provides this report.
Posted at 20:18 by Howard Bashman



In celebration of this blog's three millionth hit: An acquaintance from out of town is visiting the National Constitution Center in Philadelphia for the very first time and has asked if I would come along. So, in just a few minutes, I'll be making my second visit to the Center. My first visit was the subject of a post you can access here. The Center's Web site features a virtual tour (Real Player required) that provides a peek inside the facility.
Posted at 13:10 by Howard Bashman



A hit: At some point today, this Web log's Bravenet hit counter, which I installed on the second day of this blog's existence (on May 7, 2002), will reach the 3,000,000 hit mark.
Posted at 09:05 by Howard Bashman



"A history of independence: From his role in the Warren Commission investigation to his record in Congress, Arlen Specter continues to generate debate." This article appears today in The Baltimore Sun.
Posted at 09:00 by Howard Bashman



In Saturday's newspapers: The Washington Post reports that "Moussaoui Defense Warns of 'Loophole.'" In news from Virginia Beach, "Muhammad Jurors Told to Keep Working; Panel Asks What Happens in Deadlock." In news from the other DC-area sniper trial, "Malvo Made Certain He Knew the Territory; Planning Stressed in Remarks to Interrogators." In related coverage, "A Remorseless Malvo Heard on Recording; Teen Discussed Details of Shootings." A front page article reports that "Va. Man's Months in Saudi Prison Go Unexplained." In business news, "Court Allows Number Switch; Appeals Court Rules Against Delaying Number Portability." An article reports that "Bush's Remark About God Assailed." In other news, "9/11 Panel Pledged Secrecy to New York." In news from Los Angeles, "Pop Star's Custody Questioned; Attorney Allred Petitions To Remove Jackson's Kids." And columnist Colbert I. King has an essay entitled "And They Call It Superior Court."

In The New York Times, Adam Liptak reports that "At Sniper Trial, a Second Chilling Tape." In other news, "Delay Sought on Phone-Number Transfer Rules." In local news, "As Deadline for 9/11 Aid Nears, Many Relatives Haven't Filed." An article reports that "U.S. Survivors of Holocaust Lose Challenge on Fund for Victims." A profile is headlined "Among G.O.P. Senators, a Favorite Democrat." From Los Angeles comes word that "No Charges for Jackson for a Week." In local news, "Privacy Is Primary Issue, Mayor Says of 9/11 Tapes." In other local news, "Muslim SUNY Student's Expulsion Is Protested." And columnist David Brooks has an op-ed entitled "The Power of Marriage."
Posted at 08:22 by Howard Bashman



"Van Antwerpen tapped for spot on appeals court": The Express-Times reports here today that "President Bush has nominated U.S. District Judge Franklin S. Van Antwerpen to the 3rd U.S. Circuit Court of Appeals, Van Antwerpen confirmed Friday."
Posted at 08:15 by Howard Bashman



Friday, November 21, 2003
Elsewhere in Friday's newspapers: The Los Angeles Times reports that "Jackson Released on Bail After Arrest on Molestation Charges." In related news, "Geragos Steps Onto International Stage; As attorney for Michael Jackson and Scott Peterson, the lawyer will find himself juggling two high-profile -- and high-stakes -- cases." In news from Virginia Beach, "Jury Set to Weigh Sniper Fate." An article reports that "UC Regents Assail Chairman Over Admissions Report." In other news, "State Tells Counties to Establish Paper Trail on Electronic Voting." In news from Colorado, "Plea Deadlines in Bryant Case; Judge's order makes it more difficult for a settlement before the sexual assault trial begins." An article reports that "Governor OKs Parole of Murderer; Schwarzenegger vetoes another killer's release, however. Davis had been criticized for his policy of almost never letting such convicts go free." In local news, "Magnet School Attracts a Real Court Session; Appeals court justices hold a half-day session at the school so that budding lawyers -- and judges -- can see the legal system in action." In other local news, "Citizen Heroes' Courage Lauded in L.A.; Honorees include the man who tackled an alleged gunman after a shooting outside the Van Nuys courthouse." And letters to the editor appear under the heading "Massachusetts Court Rules Same-Sex Marriage Is Legal."

The Boston Globe contains an article headlined "AG suggests bill: same-sex benefits without marriage." In related news, "At Suffolk Law, same-sex ruling means queries, clients; Students face knotty issues suggested by SJC decision." In local news, "Kin of Sampson's victims tell jury of what they lost." Columnist Scot Lehigh has an op-ed entitled "The court's unclear message." And columnist Derrick Z. Jackson has an op-ed entitled "Court's ruling opens new era in civil rights."

USA Today reports that "For Malvo, proving insanity will be difficult; Sniper suspect's strategy seldom used, rarely works." And an editorial is entitled "Calorie-laden litigation."
Posted at 23:50 by Howard Bashman



In today's reader mail: An email that I received today ended with the following paragraph:
I wanted to thank you for the wonderful blog that you author. I am a regular visitor and rarely fail to learn something new and interesting from your posts. You and I are on opposite sides of the political aisle. But your postings are evenhanded, and I find your editorial comments consistently reasonable, even when I disagree with them. That should be the norm, but, given the current state of political debate, it is exceptional. It is also no small part of why you have such a diverse readership.
Thanks so very much for those most kind remarks.
Posted at 23:01 by Howard Bashman



Mirror, mirror: I completely agree with Heidi Bond's evaluation of which person currently publishes the funniest law student blog. Anyhow, my post from Wednesday didn't imply that I thought that Heidi's blog was the funniest; rather, I reported that's what Professor Brian Leiter thinks. And of course no one ever agrees with him.
Posted at 22:57 by Howard Bashman



Divided three-judge panel of the U.S. Court of Appeals for the Federal Circuit affirms the imposition of Rule 11 sanctions against attorney who continued to press client's cause notwithstanding nonprecedential Federal Circuit decisions to the contrary: The dissent argues that the court's affirmance of sanctions under these circumstances just isn't right. You can access the complete opinion issued today at this link. Thanks much to the reader who emailed news of this ruling to me.
Posted at 22:44 by Howard Bashman



"Will the Justices Bite the Bullet?" law.com's Tony Mauro reports that the U.S. Supreme Court could soon accept a case that requires the Court to decide whether the Second Amendment confers an individual right to bear arms.
Posted at 22:30 by Howard Bashman



"White House taps Lehigh Valley judge for federal appeals bench": The Associated Press tonight provides this confirmation of the news that I broke here earlier today.
Posted at 22:21 by Howard Bashman



Not to mention "Blood Simple": The Nashville Post today links to "How Appealing" in connection with my recent mention of a Sixth Circuit opinion containing facts reminiscent of a Coen Brothers film. You can view the trailer for "Blood Simple" at this link (Windows Media Player required).
Posted at 22:10 by Howard Bashman



"Brister takes oath as Texas Supreme Court justice after Gov. Perry's announcement of his appointment to the Court": The Supreme Court of Texas has today issued this press release. The Houston Chronicle reports here that "Houston judge Brister headed to Texas' high court." And The Associated Press reports here that "Appeals court justice named to Texas Supreme Court."
Posted at 17:26 by Howard Bashman



"Moussaoui Lawyer Wants al-Qaida Witnesses": The Associated Press provides this report on the Fourth Circuit Brief for Appellee (available here in a 121-page PDF file) unsealed today.
Posted at 17:20 by Howard Bashman



In today's issue of The Montgomery Advertiser: An article reports that "Moore's ouster challenged." And an editorial is entitled "Voters ratified judicial court."
Posted at 16:34 by Howard Bashman



Clayton Cramer is mightily upset with yesterday's Ninth Circuit ruling involving the liability of gun manufacturers: See his blog post here.
Posted at 16:27 by Howard Bashman



Available online at Reason: Jacob Sullum has an essay entitled "The Union Label: Is allowing gay marriage the same as endorsing it?" And Cathy Young has an essay entitled "Roy Moore's Monument: Religion has a place in the public square -- but not an exclusive one."
Posted at 16:24 by Howard Bashman



A reliable source is reporting: The White House is expected to announce today that it has nominated U.S. District Judge Franklin S. Van Antwerpen of the Eastern District of Pennsylvania to fill what currently is the final vacancy for which no nomination has been made on the U.S. Court of Appeals for the Third Circuit. This news comes more than two months after The Morning Call of Allentown, Pennsylvania published an article in the fine tradition of "Dewey Defeats Truman" headlined "Judge loses bid for 3rd Circuit; GOP leader says Easton's Van Antwerpen, 61, passed over because of his age." You can access my earlier coverage of that news from Allentown at this link.
Posted at 15:28 by Howard Bashman



"Leaders pushing recess option for Pickering; Republicans think this is last means to get judge to serve on 5th Circuit Court": This article appears today in The Clarion-Ledger. Aside from possible constitutional concerns that could be raised, a recess appointment for Fifth Circuit nominee Charles W. Pickering, Sr. would cause him to leave his current life-tenured job as a U.S. District Court Judge for a job as a U.S. Court of Appeals Judge that he could only hold for fewer than two years if he isn't confirmed by the U.S. Senate.
Posted at 14:55 by Howard Bashman



The transcript of Attorney General John Ashcroft's address to the Federalist Society annual convention last Saturday is now available online: You can access the transcript here (26-page PDF file). The mention of "John Ashcroft's Dance Party" appears on page 7 of the PDF document.
Posted at 14:53 by Howard Bashman



"Judge Wins Court Ruling": The Times Record of Fort Smith, Arkansas reports today that "The Arkansas Supreme Court on Thursday narrowly overturned a disciplinary panel’s admonishment of Court of Appeals Judge Wendell Griffen for speaking out about racial issues at the University of Arkansas." And The Associated Press reports here that "Ark. Court Strikes Down Judge Reprimand." You can access the majority and dissenting opinions that the Supreme Court of Arkansas issued yesterday at this link, and a one-page document referenced in a dissent is accessible here in PDF format.
Posted at 14:42 by Howard Bashman



"Note Suggests Sniper Jurors Are Divided": The Associated Press provides this report from Virginia Beach. The jury has only engaged in four hours of penalty-related deliberations so far, so it's premature for anyone to suggest that the jury is hopelessly deadlocked.
Posted at 14:39 by Howard Bashman



"Gay Marriage Ruling: A Century of Legal Precedents." NPR's "Morning Edition" today included this very interesting audio report (Real Player required).
Posted at 14:04 by Howard Bashman



Supreme Court of Pennsylvania refuses to hold constitutional as a matter of law a school district's policy authorizing random, suspicionless drug testing of students who hold parking permits or participate in extracurricular activities: The court's ruling was based on the state constitution, because the court recognized that the U.S. Supreme Court's recent decision in Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls (2002), which I previously summarized here, would have required the opposite outcome under the U.S. Constitution. You can access the majority opinion issued yesterday at this link, and a concurring opinion in which three of the seven justices on the court joined can be accessed here.
Posted at 13:33 by Howard Bashman



Jury deliberations concerning whether to impose the death penalty on John Allen Muhammad have adjourned for the weekend: As expected, the trial judge sent the jury home for the weekend at 1 p.m. today, after the jury had deliberated for approximately four hours on the penalty issue. The "Sniper Trial Blog" reports on some very interesting developments that occurred in court before the jury was discharged a short time ago.
Posted at 13:17 by Howard Bashman



"Holy Matrimony: What's really undermining the sanctity of marriage?" Slate last night posted online this essay by Dahlia Lithwick. Thanks to the reader who emailed to make sure my inadvertent failure to post this sooner did not reflect an end to my slavish devotion to the writings of this essay's author.

Also at Slate, my former Columbia Spectator editor-in-chief Steven Waldman, now of Beliefnet, has an essay entitled "A Common Missed Conception: Why religious people are against gay marriage."
Posted at 12:21 by Howard Bashman



Top-secret no more: FindLaw has posted online the Brief for Appellee filed by attorneys for Zacarias Moussaoui in the U.S. Court of Appeals for the Fourth Circuit . You can access the redacted brief at this link (121-page PDF file). As I previously noted here, FindLaw late last month posted online the redacted version of the federal government's opening brief (108-page PDF document) on appeal.
Posted at 12:07 by Howard Bashman



"Judge refuses to reduce $3M award in three-day erection case": Via "Obscure Store" I learn of this article published today in The Newark Star-Ledger.

On close scrutiny, it turns out that the blurb "Obscure Store" published about the trial judge's action is incorrect. As yesterday's ruling by the Appellate Division of the Superior Court of New Jersey explains in its introduction:
Defendants Sheldon Burman, M.D. and The Male Sexual Dysfunction Institute appeal from an order of the Law Division, entered after our remand, remitting the amount of the jury's $3 million damage award, which we previously found to be excessive, by one cent to $2,999,999.99. We reverse.
You can access yesterday's complete ruling at this link.
Posted at 11:51 by Howard Bashman



Certainly not: A profile of Massachusetts Chief Justice Margaret H. Marshall published today in The Christian Science Monitor states, "For all the ruling's import, however, analysts say its author probably won't gain the renown of jurists like Earl Warren, chief justice of the US Supreme Court during Roe v. Wade." Whether Chief Justice Marshall will gain the renown of Chief Justice Earl Warren remains to be seen, but certainly Chief Justice Warren's renown did not stem from having presided over the decision in Roe v. Wade, because he was no longer in active service on the Court when that case was decided.
Posted at 11:14 by Howard Bashman



Some Wyoming residents are weary -- in response to the question "What's your address?" -- of having to answer "F-U": The Cody Enterprise reports here today that "Road 6FU name offends residents." You can view a photo of a road sign by clicking here. And The Associated Press reports here that "Residents on 'obscene' road ask for new name."
Posted at 10:15 by Howard Bashman



In other news from Seattle: The Seattle Post-Intelligencer reports here that "Local man is indicted in tourism sex case," making him "the second person in the country to be indicted under a new federal law targeting tourists who sexually abuse children." And The P-I reports here that "Wife of Guantanamo chaplain speaks out against charges." In related coverage, The Seattle Times reports here that "Muslim chaplain's backers press for his release."
Posted at 09:59 by Howard Bashman



"Court revives suit on gun marketing; Firms can be sued over weapons used in '99 shootings": Bob Egelko of The San Francisco Chronicle has this article today. And Reuters reports here that "U.S. court OKs wrongful death suit vs gunmaker."
Posted at 09:49 by Howard Bashman



"Man found guilty for crimes he blamed on other personality": This article appears today in The Seattle Post-Intelligencer. And The Seattle Times reports here that "Insanity defense fails for attacker."
Posted at 09:45 by Howard Bashman



"Judge upholds tribal court's banishment of dangerous villager": The Anchorage Daily News reported here (free registration required) yesterday that "A Superior Court judge has upheld the right of a tribal village to banish a dangerous resident and to get an order from state courts to enforce the banishment."
Posted at 09:29 by Howard Bashman



In Friday's newspapers: In news from Virginia Beach, The Washington Post reports here that "Lawyers Argue Fate of Sniper; Muhammad Jury To Weigh Penalty" and here that "Muhammad Defense Offers a Portrait of a Family Man." In related news, "For Jurors, Stress of Capital Case Can Linger; Researchers Find An Emotional Toll." In news from the other sniper trial, you can access here an article entitled "Jail Guard Says Malvo Talked of Trail of Bodies; Teenage Victim Takes Stand; Jurors Inspect Caprice" and here an article entitled "Stressed to Kill: The Defense of Brainwashing; Sniper Suspect's Claim Triggers More Debate." From Maryland comes news that "Ehrlich Denounces Gay Marriage, Vows Legislative Fight." In news from California, "Jackson Booked on Molestation Charges." An article reports that "Programs For Ethnic Hawaiians Survive; Preference Battles Likely to Continue." In other news, "9/11 Panel Issues Third Subpoena; New York Told to Turn Over Tapes of Emergency Calls." A front page article reports that "U.S. Set to Revise How It Tracks Some Visitors; Muslims Have Protested Use of Registration." And letters to the editor appear under the heading "A Wasteful, and Not Unprecedented, Filibuster."

The New York Times reports here that "Penalty Phase of Sniper Trial Nears End." An article reports that "Terrorism Panel Subpoenas Tapes From New York." In news from California, "Michael Jackson Is Booked on Charges That He Calls Lies." A related article is headlined "Man Who Leads Prosecution Has Reputation for Tenacity." In other news, "U.S. Moves to Deport Queens Man Said to Have Been a Nazi Guard." Floyd Norris has a column entitled "Making a Mockery of Media Concentration Rules." And letters to the editor appear under the heading "Gays and Marriage in America."

In The Christian Science Monitor, Warren Richey reports that "Sniper case revisits juvenile death penalty; The trial of Lee Boyd Malvo comes as opponents of capital punishment for teens appear to be gaining ground." You can access here an article headlined "The judge on the front lines of culture war: Massachusetts' top justice made history, and drew fury, with Tuesday's ruling on gay marriage." In related news, "Gay marriage: an issue that divides the faithful." And an editorial is entitled "Courts and Same-Sex Marriages."

Finally for now, The Wall Street Journal contains an editorial entitled "First Things First: Ignorance about the Constitution prevails on campus."
Posted at 06:30 by Howard Bashman



Thursday, November 20, 2003
Elsewhere in Thursday's newspapers: In gay marriage-related news, The Boston Globe reports here that "Civil union law sought; Romney says move would satisfy the SJC"; here "Groups muster to fight gay marriage in Mass."; here "SJC taking lead on social issues; Gay marriage ruling latest redefining the family"; here "Jurist's roots deep in advocacy"; here "Image on the line, Romney treads carefully"; here "Gay marriage ruling brings few fireworks"; and here "Cambridge poised to issue licenses amid controversy." In other news, "Sampson is alleged to have threatened Plymouth guards." Columnist Ellen Goodman has an op-ed entitled "The convergence of two legal paths." Columnist Jeff Jacoby has an op-ed entitled "Down the slippery slope." Columnist Joan Vennochi has an op-ed entitled "A 'culture war' on gay marriage could hurt GOP." And columnist Adrian Walker has an op-ed entitled "A simple reality."

The Los Angeles Times reports here that "Mass. Legislators Divided on Gay Marriage Ruling; A few embrace the high court's ruling upholding same-sex unions, some vocally oppose it, and most don't know what to make of it" and here that "Parties Uneasy Over Politics of Gay Marriage; Opposition may make GOP seem intolerant. Democrats fear it could pry voters away." In other news, "Illinois Enacts Death Penalty Reforms; Lawmakers override a veto to revamp a process that led to wrongful convictions." An article reports that "D.A. in Jackson Case Failed in 1993, but Has Reputation for Persistence." In local news, "Lawyer Links Rebuke of D.A. With Firing." An article reports that "Injured MD Gets Big Award; LAPD is ordered to pay $14.2 million, rental-car firm $18.8 million in the 2001 incident." In Kobe Bryant-related news, "Judge Receives 2 Requests." An article reports that "UCLA, Cal Rejections Baffle High SAT Scorers." In other news, "UC Regents OK Award in Lab Suit." An editorial is entitled "Progress, Not Word Games." And Abraham D. Sofaer has an op-ed entitled "Licenses Cross the Line: Saying illegal aliens have 'earned the right' to drive is ridiculous. Repeal the law."

The Washington Times reports here that "Romney pursues law on gay unions" and here that "Hill action on gay unions seen as unlikely this year." An article from Virginia Beach is headlined "Ex-wife testifies on death threats." In related news, "Gruesome evidence heard in Malvo trial." An article reports that "Doctors unsure on Hinckley trips." In related news, "Hinckley's progress is no solace to his victims." You can access here an article that begins, "A second television ad has been aired in South Carolina attacking Democratic presidential hopeful Sen. John Edwards for his opposition to one of President Bush's judicial nominees." In news from New York, "Charges added for abetting terrorism." And Paul Greenberg has an op-ed entitled "Vocabulary above all."

USA Today reports here that "Gay-marriage ruling gives little time to prepare; Massachusetts lawyers, officials, employers get 6 months to adjust." And you can access here an article headlined "Edwards discusses the impact of losing a son; Senator's book relates personal, legal challenges."

In other news and commentary from The Washington Post, you can access here an article headlined "Va. Crime Panel Supports Striking Evidence Deadline." An article reports that "Immigrant Advocates Win Award; In Florida, Workers Cracked Slavery Ring." An editorial is entitled "The Merits of Gay Marriage." And columnist Richard Cohen has an op-ed entitled "This May Be Good for Marriage."

The Christian Science Monitor contains an article headlined "Where gay unions are legal, what lessons? The Netherlands has allowed same-sex marriages for 2-1/2 years. The change hasn't roiled the nation, but some issues are unresolved." And you can access here an article headlined "'Culture wars' pose risks for both parties in 2004; While Republicans may gain from gay marriage decision, White House needs to avoid hot rhetoric."
Posted at 23:00 by Howard Bashman



Ring is not lord of Maryland's death penalty: On Monday, a sharply-divided Court of Appeals of Maryland -- that State's highest court -- issued a 4-3 ruling in which the majority opinion begins:
It is Maryland's turn to consider the effect, if any, of the U.S. Supreme Court's holding in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), upon its capital punishment statutory scheme. At least eleven state supreme courts have preceded us in pondering the same question as regards their respective statutes. Of those states, four, Arizona, Colorado, Missouri, and Nevada, concluded that Ring compelled invalidation of some part of their statutes as written. The remaining six states, Alabama, California, Delaware, Florida, Illinois, and Oklahoma, concluded that Ring had no ill effect on their statutory schemes. For reasons to be explained infra, we determine that Ring does not affect adversely the Maryland statute.
You can access the complete decision (131-page PDF document) at this link. And The Baltimore Sun's coverage of this ruling in Tuesday's newspaper can be accessed here.
Posted at 22:49 by Howard Bashman



"Court Strikes Down Admonishment Of Appeals Court Judge; Judge Publicly Criticized University Of Arkansas": The Associated Press provides this report.
Posted at 22:41 by Howard Bashman



Available online from law.com: Jason Hoppin reports that "9th Circuit Takes Aim at Gun Companies." Shannon P. Duffy reports that "ABA, Sprague Agree to Settlement." In other news from the Keystone State, "Pa. Judge's Defamation Suit Sent Back to Superior Court." And Jonathan Ringel reports that "11th Circuit Delves Into Police Conduct, Qualified Immunity; Cases test limit of protection court will give officers."
Posted at 22:33 by Howard Bashman



"Disputed guideline to shape Muhammad sentence; Jury must weigh vileness of crimes, possible danger": Today's issue of The Baltimore Sun contains this report. And that newspaper also reports here today that "Malvo prosecutors race to finish case; Jurors to hear audiotape of teen boasting of killings."
Posted at 22:27 by Howard Bashman



Available online from The Harvard Law Record: Clinton Dick is keeping busy -- he has two articles this week: "Sharply-divided Supreme Judicial Court supports gay marriage" and "HLS profs mull Solomon suit." Adam White has an op-ed entitled "Force the filibuster." And Law Professor David Bernstein has figured out the easiest way to get accepted for publication by a Harvard Law journal; his op-ed is entitled "Solomon fight reveals free-association duplicity."
Posted at 22:01 by Howard Bashman



You can obtain a Supreme Court Justice bobblehead doll for just $34.00! Indeed, one just sold on eBay for only $19.00. (Here's the fine print: The Justice in question serves on the Supreme Court of Minnesota.) Thanks much to the reader who forwarded many of these links via email. And apologies to The Green Bag, which had seemingly cornered the market in court bobbleheadabilia.
Posted at 21:48 by Howard Bashman



It's a theory: In response to my query about why Habersham County, Georgia would have chosen a county-owned swimming pool as a location at which to post the Ten Commandments, a reader emails: "Maybe they hoped to divide it into two pools...." It was a very fine movie indeed.
Posted at 21:36 by Howard Bashman



Today's FindLaw commentators: Joanna Grossman has an essay entitled "Are Bans on Same-Sex Marriage Constitutional? New Jersey Says Yes, But Massachusetts, In a Landmark Decision, Says No." And Noah Leavitt has an essay entitled "How The U.S. Supreme Court Recently Refused to Enforce U.S. Law, and Insulted the International Court of Justice."
Posted at 21:30 by Howard Bashman



"Court Reinstates Lawsuit Against Gun Manufacturers": NPR's "All Things Considered" this evening provided this report (Real Player required) on today's ruling by the U.S. Court of Appeals for the Ninth Circuit.
Posted at 19:50 by Howard Bashman



"Jurors Set to Debate Muhammad's Sentence": The Washington Post provides this news update from Virginia Beach. If the jury decides not to impose the death penalty in this case, I'll be flabbergasted.
Posted at 19:45 by Howard Bashman



What others are saying about "How Appealing": Longtime readers may recall that I was overjoyed when I first discovered that this Web page maintained by the library of the U.S. Court of Appeals for the Fifth Circuit links to this very blog.

Many other federal appellate courts make such link lists available only to users of their intranets. A reader has forwarded to me the following description of "How Appealing," which the library of another U.S. Court of Appeals has posted on its intranet: "This is a must-read blog (or 'blawg') for the courts. Attorney Howard Bashman provides the best daily summary available of legal news and commentary, with a special emphasis on federal appellate court and US Supreme Court issues, decisions, events and personnel." I thank the person responsible for that description for his or her very kind words.
Posted at 19:40 by Howard Bashman



"Ernie the Attorney" explains how a "virtual baby shower" can occur for Denise Howell of the "Bag and Baggage" blog: You can access Ernie's post here. Denise's blog played an instrumental role in my decision to launch "How Appealing," so I'm glad that a convenient way exists to once again express my thanks as Denise and her husband begin to experience the joy (and everything else) of parenthood.
Posted at 19:35 by Howard Bashman



"Hastings Decides Against Fla. Senate Bid": The Associated Press provides this report concerning U.S. Representative, and impeached U.S. District Judge, Alcee L. Hastings (D-FL).
Posted at 18:18 by Howard Bashman



"Court Reinstates Gun Industry Lawsuit": David Kravets of The Associated Press has this report on today's ruling by the U.S. Court of Appeals for the Ninth Circuit, which I first reported on here. And Law Professor Eugene Volokh, who is a gun law expert, has found much to complain about in today's ruling, and he details his objections here, here, here, and here (with perhaps even more to come, later).
Posted at 18:11 by Howard Bashman



The Second Circuit today decided a case bearing an appellate docket number from 1994: You can access today's ruling at this link. And no, it didn't take the Second Circuit nearly ten years to decide this particular appeal.
Posted at 17:55 by Howard Bashman



A report on Justice Clarence Thomas's visit today with the Federalist Society chapter at the University of Georgia School of Law: A "How Appealing" reader was present and has emailed this report:
It was quite a treat this afternoon to be able to meet and speak with Justice Clarence Thomas. He was very kind and gracious, staying thirty minutes after he was scheduled to leave taking individual pictures with all the members of the Federalist Society. These are the highlights of his talk.

Justice Thomas began by commenting generally on the business of the Supreme Court. He gave the impression that things were much more collegial on the Court than the public might imagine and that he respected all his colleagues and enjoyed working with them. He gave the impression that the Justices get along better than when he arrived on the Court. He also seemed to indicate that he is now in his "comfort zone" on the Court. As one might imagine, he spent the first few years of his tenure getting used to the inner workings and heavy workload of the Court. However, Justice Thomas felt that since he has now written on nearly all the broad issues that come before the Court, the decisions come somewhat easier and that this gives him more time to reflect on his decisions.

Justice Thomas was then asked at what point did he want to become a judge, to which he replied, "never." When the Reagan Administration ended, he was looking forward to getting out of government and making a little money in private practice. He was then approached by the Bush I transition team and asked if he would join the DC Circuit. He accepted and the rest is (recent) history. He was then asked, "what do you think are the ideal qualities in a judge?" Justice Thomas replied that he felt really smart people don't always make the best judges (so there's hope for some of us law students after all). An important quality for the bench, in Justice Thomas's mind, is courage of conviction, tempered by objectivity.

Justice Thomas was then asked whether precedent or personal beliefs had more of an effect on his decision making. He stated that a sense of right and wrong was definitely important, but again repeated that it must be tempered by objectivity. The oath he took to uphold and apply the law was something he takes very, very seriously. Also, he has several safeguards to try to avoid inserting his personal beliefs into his decisions. His clerks read everything he writes to try to weed out his own beliefs from his opinions. Also, he later mentioned that he doesn't absorb too much news so that he can avoid forming ideas and beliefs about cases that might come before the court. Thus he avoids having a pre-conceived result which he would then feel he has to reach no matter what the law is. Shortly thereafter, he was asked what he liked to do for fun, and he said he enjoyed motorhoming. He enjoys meeting with other motorhomers, mechanics, gas station attendants, and other average people while cruising the country. He enjoys the slow pace motorhoming and this is a welcome break from the Court's heavy workload. I felt this answer revealed a great deal about his character and judicial temperament.

Finally, Justice Thomas was asked what he thought the major legal issues over the coming years would be. He predicted that cloning, eugenics, intellectual property, due process (in regards to technology), and other computer issues will be major issues in the future. As an aside, he mentioned that only one other justice (Justice Stevens) uses a laptop to work on. Justice Thomas seemed especially troubled by the cloning/eugenics issue and the due process issues. He then added that he expects to see more cases arising out of the PATRIOT Act and the war on terrorism, both now and in the future.

All in all, it was a very interesting talk. I would encourage anyone, no matter what your views, to take the opportunity to visit with any Supreme Court justice whenever the opportunity presents itself.
Indeed. And I thank my correspondent for this report.
Posted at 17:42 by Howard Bashman



"Gay marriage impact may filter into Florida": This article appears today in The St. Petersburg Times.

In gay marriage-related commentary, The New Republic offers an online debate between Jeffrey Rosen and Jonathan Rauch. And from The American Prospect, E.J. Graff has an essay entitled "See Change: What comes after the Massachusetts court's decision on gay marriage?" and Matthew Yglesias has an essay entitled "Partisan Paradox: Why Republicans, not Democrats, will pay a political price for the gay-marriage ruling."
Posted at 16:36 by Howard Bashman



"Harvard Law profs may file suit vs. Defense": The Yale Daily News today contains this report. Today's issue of The Harvard Crimson, meanwhile, reports here that "Student Legal Aid to Prisoners Threatened" and here that "City May Be First To Allow Gay Marriage; Cambridge councillors push to issue licenses as soon as possible."
Posted at 16:29 by Howard Bashman



Stuart Buck's 20 questions interview at "Crescat Sententia" is now accessible: It turns out that the Cres-kittens had underestimated the popularity of their site, but it's back online now, and the interview can be seen here. I just hope that they invest in plenty of bandwith before they publish their 20 questions interview of me.
Posted at 16:25 by Howard Bashman



"Defense Rests Case in Muhammad Trial": The Associated Press provides this report, and it appears that the jury could begin deliberating as early as tomorrow on whether to impose the death penalty. The Virginian-Pilot's "Sniper Trial Blog" continues to provide exemplary, real-time coverage of the Muhammad trial. I haven't found any blog that is providing real-time coverage of the Malvo trial.
Posted at 15:51 by Howard Bashman



Access online the Georgia federal trial court's decision ordering Habersham County to remove two Ten Commandments displays: Monday's ruling of the U.S. District Court for the Northern District of Georgia is now available online here. I've been waiting patiently to find out how the Ten Commandments came to be posted at a county-owned swimming pool.
Posted at 15:11 by Howard Bashman



"Appeals court halts deportation; Judge: Nazi guard's service 'involuntary.'" The Philadelphia Daily News today contains this report. And you can access yesterday's ruling of the U.S. Court of Appeals for the Third Circuit (posted online today) at this link.
Posted at 14:44 by Howard Bashman



"Judge loses round in battle over Web site": The Pittsburgh Post-Gazette reports here today that "Superior Court Judge Jane Orie Melvin was dealt a setback in her legal battle to uncover the identity of a local Internet gossip who posted derogatory comments about her in 1999." You can access yesterday's Supreme Court of Pennsylvania ruling here (majority opinion) and here (concurring opinion). Judge Joan Orie Melvin (yes, The Post-Gazette has misspelled her first name in today's article) was the Republican nominee to fill a Pa. Supreme Court vacancy earlier this month, but her Democratic challenger won the election.
Posted at 14:10 by Howard Bashman



Divided three-judge Ninth Circuit panel reinstates negligence and public nuisance claims against the manufacturers and distributor of the guns used in the Los Angeles-area Jewish Community Center shootings four years ago: The majority opinion, by Circuit Judge Richard A. Paez, in which Circuit Judge Sidney R. Thomas joined, begins (footnotes omitted):
On August 10, 1999, Buford Furrow ("Furrow") shot and injured three young children, one teenager, and one adult at the Jewish Community Center ("JCC") in Granada Hills, California. Furrow fled the JCC with his weapons and, later that day, shot and killed Joseph Ileto ("Ileto"), a United States Postal worker who was delivering mail in Chatsworth, California.

Ileto's sole surviving dependent parent and three of the children who were shot at the JCC filed a complaint in the Los Angeles Superior Court against multiple defendants involved in the manufacture, marketing, and distribution of various firearms found in Furrow's possession. The case was removed to federal district court, where the plaintiffs asserted negligence and public nuisance claims against several gun manufacturers, distributors, and dealers. These defendants filed motions to dismiss under Fed. R. Civ. P. 12(b)(6), and all motions were granted. Plaintiffs appeal the dismissal of their public nuisance and state law negligence claims.

Because the plaintiffs have stated a cognizable claim under California tort law for negligence and public nuisance against the manufacturers and distributor of the guns used in the shootings, we reverse the district court's dismissal against the plaintiffs and in favor of defendants Glock, Inc., China North Industries Corp., RSR Management Corp. and RSR Wholesale Guns Seattle Inc. We affirm the district court's dismissal in favor of all other defendants.
The dissenting opinion, by Senior Circuit Judge Cynthia Holcomb Hall, begins:
"Whatever personal emotions and personal views members of this court may have in this tragic case, those feelings must be put aside in resolving the narrow legal question decided here." Merrill v. Navegar, Inc., 26 Cal. 4th 465, 492 (2001) (Kennard, J., concurring).
You can access today's complete ruling at this link.
Posted at 13:29 by Howard Bashman



This afternoon's Church vs. State news: The Kansas City Star reports here (registration required) that "Former justice delivers Ten Commandments message; Overland Park visit follows contentious ousting in Alabama." The Associated Press also provides coverage of that event.

The Gainesville Times reports here that "Habersham removes Commandments; Barrow County attorney says ruling will not affect case there." AccessNorthGa.com reports here that "Ten Commandments rally planned."

The Miami Herald contains an article headlined "Judge: Church can include Jesus message in park show." The South Florida Sun-Sentinel contains an article headlined "Judge: Broward can't exclude Calvary Chapel display from Festival of Lights."

The Atlanta Journal-Constitution contains an op-ed by Robert E. Reccord entitled "People of religious conviction endure yet another onslaught." And The Forward contains an op-ed by Ami Eden entitled "Whose Liberty? Ruling Highlights Fight Over Rights."
Posted at 13:01 by Howard Bashman



"Clarence Thomas returns to campus": Justice Clarence Thomas will be making another visit to the University of Georgia School of Law tomorrow, The Red and Black reports here.

Earlier this week, The Daily Princetonian reported here that "O'Connor makes first visit to campus." And The Trenton Times reported here on Tuesday that "O'Connor lauds jurist who showed 'respect.'"
Posted at 12:03 by Howard Bashman



"Jury trial sought to decide what Schiavo wanted; Attorneys for the governor want to defend 'Terri's Law' and have witnesses determine Terri Schiavo's wishes." This article appears today in The St. Petersburg Times.
Posted at 11:59 by Howard Bashman



In today's mail: A copy of the brand new book "Amicus Humoriae: An Anthology of Legal Humor," forwarded by one of its co-editors. Coincidentally, the book has become available just in time for the holiday gift-giving season.
Posted at 11:35 by Howard Bashman



"Senate panel studies Haynes; A ruling on his nomination to the 4th Circuit could be delayed until next year": The Richmond Times-Dispatch today contains this article.
Posted at 11:20 by Howard Bashman



In news and commentary from Alabama: The Associated Press reports here that "Two members of the court that voted unanimously to remove former Chief Justice Roy Moore from office made campaign contributions to Moore's opponent in the 2000 election for chief justice."

The Mobile Register reports here that "Baptists support display, but not defiance." And an editorial is entitled "On marriage, Alabama is not Massachusetts."

The Birmingham News reports here that "Anniston lawyer likely to win OK as federal judge."

And The Montgomery Advertiser contains an editorial entitled "Trimming court still worth look."
Posted at 11:08 by Howard Bashman



The Fort Worth Star-Telegram is reporting: You can access here an article headlined "Man dies trying to swallow marijuana" and here an article headlined "Worker banned from courts over note to defendant."
Posted at 10:54 by Howard Bashman



"Strange tale of Stanford slaying, coverup": This article appears today in The San Francisco Chronicle.
Posted at 10:43 by Howard Bashman



Available at National Review Online: Byron York has an essay entitled "A Big Change in the War Over Judges? There's new evidence the Democrats' strategy is backfiring." And Deroy Murdock has an essay entitled "Legal Insanity: Let the insane be guilty, too."
Posted at 10:30 by Howard Bashman



In Thursday's newspapers: The New York Times reports here that "Gays' Victory Leaves Massachusetts Lawmakers Hesitant." In related coverage, you can access here an article headlined "Conservatives Mobilize Against Ruling on Gay Marriage" and here an article headlined "Massachusetts Ruling on Gay Marriage Bolsters Hopes in N.J." In news from Virginia Beach, "Sniper's Ex-Wife Testifies That He Threatened Her Custody." An article reports that "Lawyer Faces New Terror-Related Charges." In news from California, "Michael Jackson Faces Arrest on Charges of Child Molesting." A related article is headlined "Star's Costs Mount as Album Sales Slump." In local news, "Decades Old Cabaret Law Faces Repeal." An editorial is entitled "A Victory for Gay Marriage." And William B. Rubenstein and R. Bradley Sears have an op-ed entitled "Toward More Perfect Unions."

The Washington Post reports here that "Mass. Gay Rights Ruling May Prompt Va. Clampdown." In news from Virginia Beach, you can access here an article headlined "Sniper's Ex-Wife Describes Fear; Children's Loving Letters Show Another Side"; here "Jury Hears of Bitterness, Threats During Breakup; Muhammad's Ex-Wife Says She Feared for Life; She Also Reads Adoring Letters From His Children"; here "Friend Describes 'Considerate' Man; Tacoma Woman Testifies for Defense"; and here columnist Marc Fisher writes that "Deck Is Stacked To Deal Sniper The Death Card." In news from the other sniper trial, "Sniper Victims Testify Against Malvo; Jury Also Hears Tapes of Calls, Sees Notes Found at Shooting Sites." In related news, "Malvo Trial Taking Distinct Path." A front page article reports that "Lawmakers Defy Bush on Media Rules; Negotiators Back Move to Stop FCC From Easing Ownership Limits." In other news, "Judge Seeks More Input On Hinckley; St. Elizabeths Is Silent On Unsupervised Visits." An article reports that "Michael Jackson Faces Arrest; Molestation Case Builds in California."

[More to come.]
Posted at 06:30 by Howard Bashman



Wednesday, November 19, 2003
Elsewhere in Wednesday's newspapers: The Boston Globe provides extensive coverage of yesterday's gay marriage ruling by the highest Massachusetts state court. You can access here an article headlined "Gays have right to marry, SJC says in historic ruling; Legislature given 180 days to change law"; here "Legal conflicts to take years to develop, some analysts say"; here "Ruling extends 20 years of cases"; here "Lawmakers are divided on response"; here "Some Republicans see decision as a stance to run against in '04"; here "Employee benefits in line to be extended"; here "Some wonder, others welcome decision"; here "Most are cautious in voicing support"; here "Cambridge may counter wait-and-see approach on certificates"; and here "Strong, divided opinions mark clergy response." An editorial is entitled "Equal rights -- and rites." Columnist Eileen McNamara has an essay entitled "On marriage, simple justice." And columnist Derrick Z. Jackson has an essay entitled "Mass. court cuts through the homophobia." In other news, "Witness says Sampson tried prison escape; Prosecutors push case for execution." And an editorial is entitled "Defending fairness."

The Los Angeles Times reports here that "Mass. High Court Backs Gay Marriage." A related article by David G. Savage reports that "Gay Marriage Ruling Up Against an Array of Legal Barriers." In news from Virginia, you can access here an article headlined "Sniper Testimony Hints at Motives; Evidence of what set off Muhammad's killing spree could sway his jury on the death penalty" and here an article headlined "Jury Hears Malvo's Taped Confession." In business news, "Media Rule Change May Stick; The move to repeal the FCC's raising of the ownership cap limit appears to be losing steam amid a veto threat and network lobbying." An article reports that "L.A. Council Retreating on Lap-Dance Ban." In other news, "Public Anger Called Hinckley's Key Hurdle in Quest for Limited Freedom." An article reports that "Judge Finds Cause for Peterson Trial; Modesto neighbors see no reason for surprise in the way the spotlighted case has developed." In news from New York, "Judge Refuses to Dismiss Two Charges Against Martha Stewart; Obstruction-of-justice and securities fraud counts stand, the judge rules, paving the way for a January trial." In business news, "Court Victory for Internet Advertising Firm Run by 3 Brothers; Electronics firm is told to pay Advertisement Banners.com of Anaheim $2.25 million." An article reports that "Many Parole Violators Will Avoid Prison; California agrees to divert thousands of nonviolent offenders into programs." In news from Colorado, "Bryant Prosecution Team Grows." You can access here a very interesting article headlined "Hell's 25-Year Echo: The Jonestown Mass Suicide; A reporter who was in the vortex of the cult catastrophe finds survivors still coping." A front page article is headlined "Hackers Live by Own Code; Sure, they break into computer systems, but not always with bad intent. And these tech whizzes do have certain quirky rules of etiquette." Douglas W. Kmiec has an op-ed entitled "The gay-rights ruling by Massachusetts' highest court undermines the family as an institution," while Alan Hirsch has an op-ed entitled "Just What Is Marriage Anyway? This correct decision is basically conservative -- certainly not an instance of 'judicial activism.'" And letters to the editor appear under the heading "Internments Differ, but Beware of Abuses."

The Washington Times reports here that "Massachusetts OKs gay 'marriage.'" In related news, "Bush vows to defend 'sanctity of marriage.'" In other related news, "Strongly religious most opposed to gay 'marriage.'" In even further related news, "Same-sex unions likely as '04 issue." You can access here an article headlined "Special interest control cited." In news from Virginia Beach, "Sniper planned more slayings." In other news from Virginia, "Malvo: 'I intended to kill them all.'" An article reports that "Hinckley's mom says trips home would be safe." An editorial is entitled "The Massachusetts example." And an op-ed by Walter Williams is entitled "Commerce clause abuse."

USA Today reports here that "In Mass., same-sex marriage ban lifted; Court's ruling could play out nationally." A related item is headlined "Legislators have six months to rewrite law or try to block ruling." You can access here a list of "Milestones for gay couples." And an article reports that "Gay marriage looms large for '04." In other news, "Peterson will stand trial in wife's slaying, California judge rules." An editorial is entitled "Fight over gay marriage threatens efforts to end bias." Tony Perkins has an op-ed entitled "Protect traditional marriage." And letters to the editor appear under the heading "Thank God for former Ala. justice."
Posted at 23:31 by Howard Bashman



"Calif. Sen. Feinstein Blocks Bush Nominees": Now Jesse J. Holland of The Associated Press is reporting that "Democratic Sen. Dianne Feinstein of California is blocking many of President Bush's judicial and other nominees as Congress speeds toward adjournment for the year in what her aides describe as a dispute arising from Bush's refusal to reappoint a Democrat to the Federal Energy Regulatory Commission." Another mystery sol-ved.
Posted at 23:16 by Howard Bashman



Commentary: Online at The Weekly Standard, Dennis Teti has an essay entitled "The Federal Marriage Amendment Is Hopeless; But federal law can succeed in protecting marriage where a constitutional amendment is destined to fail."

Online at Town Hall, Thomas Sowell has an essay entitled "Judges and judgment"; Walter E. Williams has an essay entitled "Harm's a two way street"; Jay Bryant has an essay entitled "Neanderthals, Angevins and Kennedys"; Ben Shapiro has an essay entitled "Don't let Miguel Estrada's nomination die in vain"; Terence Jeffrey has an essay entitled "Massachusetts manhandles marriage"; Linda Chavez has an essay entitled "Catching them in the act"; Maggie Gallagher has an essay entitled "Goodridge decision comes down hard"; David Limbaugh has an essay entitled "Hijacking the judicial appointment power"; and Cal Thomas has an essay entitled "Marriage Redefined."

At National Review Online, Star Parker has an essay entitled "Estrada Redux: Free Janice Rogers Brown"; Stanley Kurtz has an essay entitled "Who Is Goodridge Good For? Gay marriage in Massachusetts"; Peter Kirsanow has an essay entitled "Transparent Discrimination: 'What is the termination date of your racial-preference policy?'"; and an editorial is entitled "The Left at the Altar: Goodridge and its aftermath."
Posted at 23:12 by Howard Bashman



"Man Found Innocent in Counterterror Case": The Associated Press reports here from New Mexico that "A Canadian man charged with providing military training to foreign soldiers without a license and stockpiling hundreds of missile warheads at his counterterrorism school was acquitted Wednesday of all charges."
Posted at 23:08 by Howard Bashman



"Court reporter jailed over missed deadlines": This article appeared in yesterday's issue of The Miami Herald. (Via "Abstract Appeal.")
Posted at 22:30 by Howard Bashman



Five U.S. Senators file amicus brief on the merits in the Pledge of Allegiance case pending before the U.S. Supreme Court: You can access the merits-stage amicus brief of U.S. Senator John Cornyn (R-TX), et al., at this link. Thanks much to the reader who so kindly sent this along via email earlier today.
Posted at 22:25 by Howard Bashman



"Court to FBI: No spying on in-car computers." Declan McCullagh of c|net News.Com today has this report on a ruling yesterday by the U.S. Court of Appeals for the Ninth Circuit that I first reported on here.
Posted at 22:15 by Howard Bashman



"Like a Virgin: Veterans of the most rarefied courtroom argumentation recall when they were touched by the justices for the very first time." Tony Mauro has this article online at law.com. I may have the pleasure once again of seeing Tony in person sometime soon, but I'm sworn to secrecy about the details.
Posted at 22:12 by Howard Bashman



"Dem Said to Be Blocking Bush's Nominees": Jesse J. Holland of The Associated Press reports here that an unidentified Senate Democrat has placed a hold on all judicial nominees, which may prevent any more Senate confirmations from occuring before year end, and The AP has been unable to find out which Senator it is. Well, the email pipeline at "How Appealing" is open wide if anyone wants to break the news here.
Posted at 20:50 by Howard Bashman



"9th Circuit expedites hearing in bond conflict; Appeals court could hear case in February": This article appears in Thursday's issue of The Pacific Daily News of Guam.
Posted at 20:10 by Howard Bashman



"Center for Constitutional Rights Launches Campaign to 'Indict' Attorney General John Ashcroft": See this press release issued today. CCR has also launched a Web site dedicated to its effort. Thanks to the reader who emailed to draw this to my attention.
Posted at 19:59 by Howard Bashman



Stuart Buck -- blogger and solo guitarist: You already know him as the founder of "The Buck Stops Here" blog, but this article from the Texas Lawyer reveals that Stuart is a musician, too. You could learn even more about him via his answers to 20 questions at the "Crescat Sententia" blog, but after the lead Cres-kitten hit the road to do some traveling, that blog has become inaccessible.
Posted at 19:28 by Howard Bashman



The Associated Press is all over the Ten Commandments tonight: You can access here an article headlined "Move afoot in Florida to protect Ten Commandments in constitution"; here "Federal lawsuit alleges Moore illegally ousted"; and here "Moore's name deleted from Ten Commandments resolution."
Posted at 19:24 by Howard Bashman



"Split Decision: Another reason to divide the 9th Circuit." Seattle Times columnist Collin Levey has this essay online at Slate this evening.
Posted at 19:18 by Howard Bashman



This evening's Ten Commandments news: The Associated Press reports here that "Habersham to appeal ruling" and here that "Constitution Party eager to get Moore as presidential candidate."
Posted at 17:26 by Howard Bashman



DC-based federal district judge rules that Ninth Circuit nominee "misconstrued the clear mandate of" the Federal Land Policy and Management Act: You can access yesterday's ruling by Judge Henry H. Kennedy Jr. of the U.S. District Court for the District of Columbia, in which he criticizes by name Ninth Circuit nominee William Gerry Myers III, at this link. And The Associated Press reports here that "Judge Rules Against Interior Department."
Posted at 16:31 by Howard Bashman



Seventh Circuit grants rehearing en banc in one Title VII religious accommodation case and denies it (over the dissent of three judges) in another: Back on June 27, 2003, a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit decided both of these appeals in a single, consolidated opinion by Circuit Judge Frank H. Easterbrook.

Today, the Seventh Circuit "de-consolidated" the cases and issued this opinion involving "an employee of Indiana's child-welfare system, took two days of paid leave rather than comply with a directive to remove a headwrap required by her faith" in the case in which rehearing en banc has been granted.

The case in which rehearing en banc was denied over the dissent of three judges involves a man who lost his job with the Indiana State Police after he refused to work at a casino, an enterprise that contravenes his religious beliefs. You can access the "de-consolidated" opinion in this second case and the dissent from rehearing en banc, both issued today, at this link.

Judge Easterbrook is listed as the author of both of the "new" panel opinions issued today.
Posted at 15:40 by Howard Bashman



Today's Senate Judiciary Committee hearing is about to get interesting: As Senator Edward M. Kennedy (D-MA) begins questioning Fourth Circuit nominee William James Haynes II about the issue of Guantanamo detainees and other Department of Defense detainees in the war on terror. You can view the hearing live online at this link (Real Player required).

Update: Now (at 3:37 p.m.) Senator Russ Feingold (D-WI) is asking Haynes about the American citizens being held in a military brig on terrorism charges without the ability to have contact with counsel or other third-parties.
Posted at 15:19 by Howard Bashman



"Court Orders Arguments in Moussaoui Case": The Associated Press provides this report. You can access my coverage of this development earlier today at this link.
Posted at 15:09 by Howard Bashman



"Building a Web Media Empire on a Daily Dose of Fresh Links": This article about blogs in Monday's issue of The New York Times discusses the easiest way to launch a popular blog -- have it be devoted to pornography and sex.
Posted at 14:44 by Howard Bashman



In news from the U.S. Virgin Islands: The Virgin Islands Daily News reported here on Friday that "Assistant U.S. attorney in the running to replace Moore as district judge." Today's edition of that newspaper reports here that "District Judge Thomas Moore rejects lawyer's demand that he step aside." You can access the decision that is the subject of today's article at this link. The St. Thomas Source on Monday published an item headlined "Judging Tom: Politics Bares Its Teeth." And a related letter to the editor appears under the heading "V.I. GOP's Fate May Hang On That Of Judge Moore."
Posted at 14:14 by Howard Bashman



Bob Egelko is reporting: In today's issue of The San Francisco Chronicle, he has an article headlined "Legal challenges expected after Massachusetts ruling." And from yesterday's newspaper, you can access here an article headlined "S.F. officials warned on dispensing medical pot."
Posted at 13:57 by Howard Bashman



Fourth Circuit grants in part the federal government's motion to seal the oral argument on appeal in the Zacarias Moussaoui case: You can access today's order at this link. The oral argument will begin at 10 a.m. on Wednesday, December 3, 2003.
Posted at 13:22 by Howard Bashman



Professor Brian Leiter says: "Of the various blogs by law students I've seen, this one (by a Michigan student) is easily the most amusing." I don't think I've previously linked to either of these bloggers, so here goes.
Posted at 12:33 by Howard Bashman



"Edward Schempp, 95, social activist": The Philadelphia Inquirer last Thursday contained an obituary that begins, "Edward L. Schempp, 95, a social activist and churchgoer who won a U.S. Supreme Court case prohibiting required Bible-reading in the Abington schools, died of heart failure Saturday at Hayward Convalescent Hospital in Hayward, Calif." With apologies to Ninth Circuit Judge Alex Kozinski, let me simply observe "no relation."
Posted at 12:20 by Howard Bashman



He likes to watch: The Associated Press reports here that "Forger pleads guilty to being OSU fan." And in other coverage, The San Diego Union-Tribune reports here that "It's Big Ten now, Big House later." (This post's title in fond recollection of "Being There.")
Posted at 12:02 by Howard Bashman



"Murder, Race, Justice: The State v. Darryl Hunt." The Winston-Salem Journal has set up this very cool Web page in connection with an eight-part series it is running this week. You can learn more about the series at this link.
Posted at 11:22 by Howard Bashman



Thanks-giving: I'm aware that Thanksgiving won't be here until next Thursday (see, I do know the actual date on which certain government holidays are celebrated), but it's never too early for me to say thanks to the many readers of this blog. For example, I must have received a dozen emails early yesterday morning from readers who wanted to make sure I knew that the Supreme Judicial Court of Massachusetts was going to issue its gay marriage ruling yesterday at 10 a.m. And many, many other readers regularly email to me pointers to interesting court decisions and newspaper articles and commentary. Without such readers, "How Appealing" would provide much less information than it does.

While I could not be more pleased with the large and enthusiastic following that "How Appealing" has already gained, I can't help but think that this blog's current readership represents only the proverbial tip of the iceberg. Heck, even the most popular blog only receives an average of 90,000 visits a day. And while I'm not one of those bloggers who asks readers to contribute money or things (although a laptop computer would be nice -- just kidding), I do like to encourage readers who enjoy "How Appealing" to do all they can to bring this site to the attention of others who may find it of interest but who've never visited.

So, dear reader, I beseech you to do what you can to bring "How Appealing" to the attention of new readers. Indeed, any new readers that you introduce to this site before December 1, 2003 will thank you profusely, because on that date this blog will publish what I guarantee to be one of the best installments of "20 questions for the appellate judge" yet, featuring Seventh Circuit Judge Richard A. Posner as the interviewee.
Posted at 10:55 by Howard Bashman



Enjoix St. Croix: This blog is fortunate to have readers who reside in the U.S. Virgin Islands, but I'd be curious to learn whether any of those readers reside on St. Croix. More specifically, I'd love to hear via email from any readers (whether they live on St. Croix or not) who have suggestions about how one might enjoy oneself on that island while not engaged in last-minute preparations for an appellate oral argument.
Posted at 10:51 by Howard Bashman



Yesterday's oral argument: The oral argument that I presented yesterday to the Superior Court of Pennsylvania was the third of four appellate oral arguments that I have before year end, and it also was the last one that's taking place this year within the continental United States.

In the case argued yesterday, I represent a child's sole surviving parent who contends that the trial court violated the U.S. Supreme Court's ruling in Troxel v. Granville (2000) in granting visitation to the child's maternal grandparent over my client's, the father's, objection. Many other States, in Troxel's aftermath, have sided with the parent in cases such as this, but the question is one of first impression in the appellate courts of Pennsylvania.

When I finally returned to my office yesterday after having spent nearly five hours waiting to argue that appeal, a pleasant surprise awaited me on my voice mail -- a Third Circuit judge had called to see if I was interested in accepting a new pro bono appellate representation in that court. Because the judge isn't available to talk until tomorrow, I won't learn any of the details of the case until then.
Posted at 10:40 by Howard Bashman



"Judge postpones ruling in second Kamehameha case": The Honolulu Advertiser today provides this report.
Posted at 10:39 by Howard Bashman



News and commentary from Alabama: The Birmingham News reports here that "Alabama won't recognize same-sex unions, Pryor says." In other news, "Director of courts has 25 years of experience." One editorial is entitled "Moore's new crusade; Ousted justice finally hits on acceptable strategy," while another is entitled "Exxessive verdict; 'Jackpot justice' hits oil company again, harder."

The Montgomery Advertiser reports here that "Display's removal may cost Moore." That newspaper offers an Associated Press report headlined "State may feel backlash from verdict." And an editorial is entitled "Outside critics show ignorance."

The Mobile Register reports here that "Massachusetts ruling could lead to challenges elsewhere; Pryor says Alabama would not recognize same-sex marriages from out of state." In other news, "Byrne has second thoughts about shrinking court; Montrose senator fears cutting justices could flood lower court." And an article reports that "Acting chief appoints aides."
Posted at 10:22 by Howard Bashman



Time change for today's Senate Judiciary Committee confirmation hearing: A reader in-the-know emails to say that the start time for today's hearing, which I have previewed here, has been pushed back to 2:30 p.m. today.
Posted at 10:08 by Howard Bashman



"Courts still deciding what no same-sex marriage means": This article appears in today's edition of The Anchorage Daily News.
Posted at 10:04 by Howard Bashman



"Court denies personal pot appeal; Decision shoots down state; earlier personal use ruling stands." The Anchorage Daily News on Saturday provided this report. And The Fairbanks Daily News-Miner on Saturday reported that "Appeals court just says no to pot case." You can access Friday's ruling of the Court of Appeals of Alaska at this link. (Thanks to "TalkLeft," whose post brought this matter to my attention.)
Posted at 09:55 by Howard Bashman



Thank goodness for TiVo: Blogger Denise Howell reports here that she will be on television tonight at the same time that CBS is broadcasting the third annual Victoria's Secret Fashion Show. Because the station on which Denise is appearing tonight does not broadcast into Pennsylvania, it looks like I'll have no option but to watch supermodels in lingerie.
Posted at 09:44 by Howard Bashman



On the agenda: In half an hour from now, the Senate Judiciary Committee is scheduled to hold a confirmation hearing to consider Fourth Circuit nominee William James Haynes II and three federal district court nominees. You can access the agenda at this link, and a live video feed will be available here once the hearing gets underway. By the way, in response to my last mention of the Haynes nomination, a reliable source emails to advise that Haynes now resides in Arlington, Virginia.
Posted at 09:30 by Howard Bashman



In Wednesday's newspapers: The Washington Post reports here that "Gay Marriage Is a Right, Massachusetts Court Rules." In this blog entry from last night I have collected additional coverage of the ruling from today's issue of The Post, The New York Times, and The Christian Science Monitor. In news from Virginia Beach, "Sniper Wasn't Finished, Jury Told; Prosecutors Seeking Death Penalty Say Muhammad Planned More Attacks." In related news, you can access here an article headlined "Jury Hears Tape of Malvo Interrogation; 'I Intended to Kill Them All,' Teenager Told Prince William Detective" and here an article headlined "Mother Can't Testify for Malvo; Lawyers Blame Failure to Appear for Muhammad's Trial." In other news, "Hinckley Is Cured, Mother Tells Judge; Testimony Reveals Shooter's Many Trips." In business news, "Judge Denies Stewart's Bid to Drop Fraud Charge." An article reports that "Judge Decries Pro-Industry Mining Rules." And an obituary is entitled "Ed Schempp Dies; Plaintiff In Landmark '63 Prayer Suit."

In The New York Times, Adam Liptak reports that "At Sniper Trial, a Chilling Tape Is Heard by Jury." In other news, "Survivor of Nazi Experiments Says $8,000 Isn't Enough." An article reports that "Three Soldiers Are Charged With Assault on Prisoners." In business news, "Judge Declines to Dismiss 2 Charges in Stewart Case." In news from California, "Michael Jackson's Ranch Is Raided in Criminal Inquiry." In local news, "Case Turns On Whether Usual Politics Is a Felony." An editorial is entitled "'Enemy Combatant' Sham." And letters to the editor appear under the headings "Senators and Filibusters" and "Shorter Prison Terms."
Posted at 06:32 by Howard Bashman



"Judge Kent did not cause 9/11": Columnist Rick Casey today has this essay in The Houston Chronicle.
Posted at 06:30 by Howard Bashman



"There's no denying that How Appealing changed and is changing the face of legal journalism." Thanks to "Balasubramania's Mania" for the kind words.
Posted at 00:38 by Howard Bashman



"HLS Professors Will Soon File Solomon Suit; Summers explains University’s reluctant stance on litigation": This article appeared in Tuesday's issue of The Harvard Crimson. Meanwhile, Tuesday's issue of The Yale Daily News reported here that "Six Yale Law School students are filing law suits on behalf of low-income former Yale-New Haven Hospital patients as part of the Law School's legal clinics program." So Yale law students are suing a Yale hospital as part of their Yale legal clinic. That's bound to go over well with the university's administration.
Posted at 00:34 by Howard Bashman



Tuesday, November 18, 2003
Elsewhere in Tuesday's newspapers: The Washington Times reports here that "Conservatives aim to curb power of federal courts." You can access here an article headlined "'The case was fixed.'" In news from Virginia Beach, you can access here an article headlined "Muhammad found guilty" and here an article headlined "Victims' relatives cry for death penalty." From the other DC-area sniper trial comes a report that "Spouse testifies about killing." In other news, "Hinckley in 'remission.'" And Timothy P. Carney has an op-ed entitled "The Specter problem."

The Los Angeles Times reports here that "Court Questions Suspect's Label; White House decision to classify an alleged bomb plotter as an enemy combatant may be unconstitutional, appellate judges warn." David G. Savage reports that "Affirmative Action Appeal Is Rejected; The Supreme Court turns away a challenge to a Denver ordinance that seeks to ensure minority firms get a share of city contracts." In other news, "Court Takes Thrill Ride Safety Issue; State justices agree to review a ruling holding Disneyland to 'common carrier' rules. The thrills would be gone, an industry lawyer warns." In news from Virginia Beach, "Muhammad Convicted in Sniper Slayings." An article reports that "Hinckley's Lawyers Argue for Unsupervised Visits." In news from California, "DMV Puts No-Photo Driver's Licenses to the Test; The agency is challenging a court decision that has allowed some to avoid being photographed for religious reasons." An article reports that "Cleric Tied to Terror Is Extradited to U.S.; He faces charges of raising $20 million for Bin Laden. His alleged aide also is arrested." And letters to the editor appear under the heading "Alabama Judge Removed Over Refusal on Monument."

In The Boston Globe, Lyle Denniston reports that "High court rejects race-bias case; Declines to hear appeal citing verbal abuse in retail store situations." In other news, "Transplant targets gay marriage; Ex-lawmaker from Georgia rallies his ardent followers." And an article reports that "Poor lack counsel: lawyers cite low pay."

USA Today reports here that "Judges consider Padilla's detention." In news from Virginia Beach, "1st sniper verdict: Guilty Muhammad convicted of capital murder, awaits fate." A related article is headlined "Muhammad's missed chance could be fatal; Defense provides no explanation to persuade jury to spare his life." Another related article is headlined "Victims wonder whether closure possible." And Law Professor Jonathan Turley has an op-ed entitled "Will Malvo jurors spare life of young suspect?"
Posted at 23:51 by Howard Bashman



What question did I ask at this evening's meeting with four federal judges hosted by the American Constitution Society at the University of Pennsylvania Law School? The four federal judges who attended this evening's meeting were Third Circuit Judge Theodore A. McKee and U.S. District Judges Louis H. Pollak, Petrese B. Tucker, and Michael M. Baylson of the Eastern District of Pennsylvania.

I was fortunate to be called on by the program's moderator to ask the final question of the program. My question was: "A major argument raised by proponents of judicial filibusters is that a nominee's personal and political views will influence how he or she will rule as a judge. Have your personal or political views ever impacted how you have decided to rule in a case, and if so what is the most significant example you can provide?"

Following a period of stunned silence and some attempts at humor from the panelists, Judge McKee was the first to offer a substantive response to my question. He provided examples of instances where the law was contrary to his own views and in those instances he had to follow the law, rather than his personal preference. The most revealing part of Judge McKee's answer was when he said that he is regarded as perhaps the Third Circuit's most liberal judge, and recently he had a sitting on a three-judge panel with two of the Third Circuit's most conservative judges. According to Judge McKee, the panel unanimously agreed on the resolution of every case that week, and at the close of the sitting, in conference, Judge McKee joked to his colleagues that he was afraid that he had begun to think like them, to which one of the other judges on the panel replied that the very same morning he had remarked to his wife that he had begun to think exactly like Judge McKee.

Judge Pollak was the next and final panelist to address my question. He is deservedly regarded as one of the shining stars of the federal district court bench, and he was a hero in the civil rights movement before joining the judiciary. His response focused on the D.C. Circuit and asserted that on that court especially, a judge's approach to legal questions plays a key role in determining what outcome the judge will reach in deciding those questions. In all, Judge Pollak gave one of the more persuasive explanations for the position that a judge's personal and political philosophies do significantly impact how cases are decided.

Unfortunately, none of the four judges on the panel was willing or able to explain how his or her own personal or political philosophies affected his or her rulings. I can't say that I was surprised, but it would have been very interesting to hear the answer to that question.
Posted at 23:20 by Howard Bashman



"Marriage by Gays Gains Big Victory in Massachusetts": This article will appear in tommorow's issue of The New York Times. Linda Greenhouse reports that "Supreme Court Paved Way for Marriage Ruling With Sodomy Law Decision." And a news analysis is headlined "Decision on Gay Marriage Creates a Thorny Issue for 2004 Race."

In Wednesday's issue of The Washington Post, Charles Lane will report that "States' Recognition of Same-Sex Unions May Be Tested." In related news, "The Ruling Is Felt To Boston's Roots; A Traditional-Progressive Mixed Reaction."

And Wednesday's issue of The Christian Science Monitor will contain an article headlined "Landmark ruling on gay marriage: Massachusetts high court rules that same-sex marriage is a constitutional right and tells the legislature to resolve the issue."

The NewsHour with Jim Lehrer tonight offered this report on the ruling. NPR's "All Things Considered" this evening offered reports entitled "Mass. High Court Strikes Down Gay Marriage Ban"; "Variety of Marriage Laws to Test Legal Issues"; and "Gay Marriage Ruling Prompts Constitution Debate" (click on the links to listen in Real Audio).

The White House today issued a news release entitled "President Defends Sanctity of Marriage."

Today's ruling by the Supreme Judicial Court of Massachusetts can be accessed at this link.
Posted at 23:03 by Howard Bashman



Available online at The Hill: You can access here an article headlined "How Ted cemented filibuster"; here "In twist, GOP blocks Bush nominee"; and here "Nine-hour filibuster gives Sen. Harry Reid street cred."
Posted at 22:59 by Howard Bashman



"Court's Commandments error": Marc A. Levin has this editorial in today's issue of The Philadelphia Inquirer.
Posted at 22:49 by Howard Bashman



"The Collusion Memos": Allegedly purloined memos have been all the rage lately in the judicial confirmation imbroglio, and the Coalition for a Fair Judiciary has posted them online here (30-page PDF file).
Posted at 22:24 by Howard Bashman



Tonight's Ten Commandments news and commentary: Wednesday's edition of The Atlanta Journal-Constitution will report here that "Judge orders Habersham Ten Commandments removed." The Gainesville Times reports here that "Habersham Ten Commandments ordered removed."

From Alabama, The Associated Press provides an article headlined "Houston: Moore owes state $7,000 for moving monument." The Birmingham News reports here that "Moore confirms plans to lobby for restricting federal judges" and here that "Houston appoints 2 new deputies." And The Montgomery Advertiser reports here that "Key jobs go to Supreme Court veterans."

Finally, Law Professor Marci Hamilton has an essay at FindLaw entitled "Judge Roy Moore and the Ten Commandments Controversy: Why He Was Not A Fit Justice, Won't Be A Fit Governor, And Belongs in the Private Sphere."
Posted at 22:07 by Howard Bashman



"Tribe Responds to Goodridge": What's Harvard Law Professor Laurence H. Tribe's take on today's gay marriage ruling by Massachusetts' highest court? The blog "Waddling Thunder" has the answer.
Posted at 21:52 by Howard Bashman



Off campus: Back home at chez "How Appealing," and I'm pleased to report that the American Constitution Society event this evening at the University of Pennsylvania Law School was quite interesting. I even got to ask the final question posed to the four federal judges in attendance at the program, and I'll report more on that a bit later tonight. While at Penn, I had the pleasure of meeting a bunch of professors and students who are fans of this blog, and after the reception I enjoyed a great dinner with the author of the "Sugar, Mr. Poon?" blog (more details available here). He attends law school at Penn and is heavily involved in the law school's ACS chapter.
Posted at 21:49 by Howard Bashman



On campus: It looks like I'll be visiting with the good folks at the Harvard Journal of Law and Technology on the evening of Monday, January 12, 2004 and that my talk will be available by Webcast(!). I hope to be able to visit with many other friends at the Harvard Law School (including contributors to this blog and this blog) while I'm there. But for now, I'm heading over to the University of Pennsylvania Law School to attend an event I mentioned here last night.
Posted at 16:34 by Howard Bashman



Seventh Circuit Judge Terence T. Evans is quite the sports fan: And, as I've previously noted, I'm a big fan of his judicial opinions. Today he considers the issue of ticket scalping as it affected his hometown pro basketball team, the Milwaukee Bucks. In the course of the opinion, he has the pleasure of citing to a law review article written by one of his co-panelists on the case.
Posted at 16:22 by Howard Bashman



Reading is fundamental: A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today affirmed a federal trial court's permanent injunction striking down the California Department of Corrections' policy "requiring books and magazines mailed to the prison to have an approved vendor label affixed to the package." You can access the Ninth Circuit's ruling at this link.
Posted at 16:07 by Howard Bashman



OnStar on tap: The Federal Bureau of Investigation would like to use your new car's fancy interactive navigation and information system to wiretap you. Today a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, in a ruling you can access here, said "no."
Posted at 15:32 by Howard Bashman



Can I get a witness? Paying a witness to provide testimony can give rise to federal criminal charges, even where the testimony is truthful, this opinion that the U.S. Court of Appeals for the Sixth Circuit issued today observes.
Posted at 15:27 by Howard Bashman



"Democrats Charge Break-In of Judicial Memos": Reuters reports here that "U.S. congressional authorities on Monday began looking into what Democrats called an apparent computer theft of staff memos critical of President Bush's embattled judicial nominees."
Posted at 15:15 by Howard Bashman



"SJC: Gay marriage legal in Mass." The Boston Globe provides this report on today's ruling (here, 160-page PDF document; here, HTML via Jurist) of the Supreme Judicial Court of Massachusetts. The Globe's lead article begins, "The Supreme Judicial Court today became the nation's first state supreme court to rule that same-sex couples have the legal right to marry."

The court's synopsis of its ruling can be accessed here.

The Associated Press reports here that "Mass. Court Strikes Down Gay-Marriage Ban"; here "Cautious optimism, dismay greet gay marriage decision"; here "Lesbian couple led fight for landmark ruling"; and here "Leaders say Massachusetts decision similar to Vermont's." The AP also provides "Thumbnail sketches of seven plaintiff couples in gay marriage case."

Finally for now, Reuters reports here that "Mass. Court Strikes Down Gay Marriage Ban" and here that "Mass. Gay Marriage Ruling Applauded and Denounced."
Posted at 14:52 by Howard Bashman



Just back from my oral argument: Although the Superior Court of Pennsylvania invited all counsel with cases to be argued in Philadelphia today to arrive in court no later than 9:30 a.m., my case was 19th on the list, so I didn't step up to the lectern until 2:10 p.m.
Posted at 14:44 by Howard Bashman



BREAKING NEWS -- Supreme Judicial Court of Massachusetts to deliver long-awaited gay marriage decision at 10 a.m. today: Massachusetts' highest court has announced that this morning it will deliver its decision in Goodridge v. Department of Public Health. You should be able to access the ruling via this link at or shortly after 10 a.m. today.

You can learn more about the case here, here, and here. As luck would have it, I will be in court this morning delivering the third of my four oral arguments before year end. I will provide a complete report on this morning's ruling in the Goodridge case once I return, and I may even describe the question of constitutional law presented in the case I am arguing this morning (an appeal that also, coincidentally, involves family law).

Update: The Associated Press reports here that "High court to release gay marriage decision today." And The Boston Globe offers lots of information about the case at this link.
Posted at 08:57 by Howard Bashman



"4th Circuit's reputation is polite, conservative; Bush administration steers sensitive cases to friendly panel of judges": This article appears today in The Baltimore Sun.
Posted at 07:00 by Howard Bashman



In Tuesday's newspapers: The New York Times reports here that "Judges Question Detention of American." In news from Virginia Beach, "Muhammad Is Guilty in Slaying in Sniper Spree in Capital Area." Adam Liptak reports that "911 Tape, Heard in One Sniper Trial, Is Barred From the Other." In other news, "Two Yemenis Held Abroad Are to Face Trial in a U.S. Court." An article reports that "Court Questions Eliminating Trade Center Memorial Entry." In local news, "2 Brooklyn Democrats Indicted in Judicial Corruption Case." And Clyde Haberman's NYC column is entitled "All the Views Unfit to Print on a Billboard."

In coverage of yesterday's verdict in the DC-area sniper trial of John Allen Muhammad, The Washington Post reports here that "Muhammad Guilty on All Counts; Prosecutors Begin Case for Sniper's Death"; here "Defendant Stoical Through The End; Muhammad Keeps Emotions to Himself"; here "Relief, Elation From Families Of the Victims"; here "The Verdict Is In, Catharsis Is Out; Sniper Trial Leaves Unsettled Emotions"; and here "Verdict May Affect Malvo Panel; Experts Say News, Tough to Tune Out, Could Help Either Side." A related editorial is entitled "Guilty as Charged." In other news, "Appeals Court Weighs Case of Enemy Combatant; Judges Question Executive Branch Powers in Patriot Act." An article reports that "Ruling Allows Executions to Resume in Md." You can access here an article headlined "Experts on Both Sides Testify for Hinckley; Prosecutors Oppose Unsupervised Visits Despite Doctors' Unanimity." An article reports that "Malvo Jury Won't Hear 911 Call; Chilling Tape of Franklin's Husband Prejudicial, Judge Says." In other news, "Cleric Charged With Aiding Al Qaeda; U.S. Says Yemeni Raised More Than $20 Million." A front page article reports that "FBI Curbed In Tracking Gun Buyers; Brady Law Policy Foils Watch List." And in local news, "Md. Judge Cites Legal Fees In Rejecting Phone Accord."

Finally for now, The Wall Street Journal contains an editorial entitled "Sheriff Durbin: Our scoop prompts a raid on the Senate Judiciary Committee."
Posted at 06:44 by Howard Bashman



Monday, November 17, 2003
"In Rejecting Affirmative Action Case, Court Also Exposes Conflict Among Justices": Tuesday's edition of The New York Times will contain this article by Linda Greenhouse.
Posted at 23:38 by Howard Bashman



One final post on last week's Senate judicial filibuster talkathon: The NewsHour with Jim Lehrer provided some worthwhile coverage of last week's events in the U.S. Senate. You can access it here and here. And at this link you will find an especially interesting debate on the subject between two retired U.S. Senators, one from each party.

In an effort at demonstrating bipartisanship, I hope to attend an American Constitution Society event (see description of "Judges Panel" here) being held tomorrow evening at the University of Pennsylvania Law School.
Posted at 23:20 by Howard Bashman



Elsewhere in Monday's newspapers: The Washington Times reports here that "Battle fronts form over marriage laws." In other news, "Testimony to begin in Malvo sniper trial." And an article reports that "Hinckley to seek hospital leaves."

Finally, Law Professor Jonathan Turley has an op-ed entitled "60 Years On, Again Battling an Abomination of Power; Fred Korematsu opposed Japanese internment in the '40s. Now he's urging the Supreme Court not to make the same mistakes with today's detainees" in The Los Angeles Times.
Posted at 23:01 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Groups Seek Ten Commandments Protections"; here "Supreme Court Action on Monday"; here "Muhammad Conviction First Under New Law"; here "Sniper Victims' Families OK With Verdict"; and here "Doctor: Hinckley's Mental Health Better."
Posted at 22:55 by Howard Bashman



The Honolulu Advertiser is reporting: You can access here an article headlined "Kamehameha admissions policy upheld in court"; here "Kamehameha standards debated"; here "Protesters demand justice for Hawaiians"; and here "Court proceedings give some Hawaiians hope."
Posted at 22:45 by Howard Bashman



"'Padilla' Tests President's Powers in Terror War": Tomorrow's edition of The New York Law Journal will contain this report. And New York Newsday reports here that "Court Presses Govt. in 'Dirty Bomber' Case."
Posted at 22:40 by Howard Bashman



Tonight's Saad news: The Associated Press has an article headlined "Hatch: Senate Judiciary unlikely to vote on Saad this year."
Posted at 20:59 by Howard Bashman



Racists go to Jupiter, to get more stupider: The Boston Globe reports here today that "Bias taxes brain, research finds; Dartmouth scientists look at effects of racism."
Posted at 19:28 by Howard Bashman



"Tech industry warily watches IBM toxics trial; Case could mark start of long legal battle similar to tobacco industry's": This article appears today in The San Francisco Chronicle.
Posted at 19:26 by Howard Bashman



Tonight on NPR's "All Things Considered": You can access here an audio report entitled "Padilla Lawyers Argue for Jurisdiction Ruling" and here an audio report entitled "Jury Finds Muhammad Guilty; Weighs Death Penalty."
Posted at 19:20 by Howard Bashman



"Affirmative Signs: Preferences won't be on campus forever." Stanley Kurtz has this essay today at National Review Online.
Posted at 19:19 by Howard Bashman



"I Was Brainwashed! If Muhammad's guilty is Malvo innocent?" Slate's Dahlia Lithwick has this essay. And you can hear her discuss today's guilty verdict here, on NPR's "Day to Day" program.
Posted at 19:10 by Howard Bashman



"Judges Hear U.S. Enemy Combatant Legal Challenge": Reuters provides this report.
Posted at 19:04 by Howard Bashman



"Scalia Lashes Out at Supreme Court Judges": Anne Gearan of The Associated Press has this report. I'm not sure I agree with the headline writer's take on Justice Antonin Scalia's dissent from the denial of certiorari issued today. To quote an email that I received earlier today from a longtime reader of this blog, "I think [today's opinion dissenting from the denial of certiorari] is one of [Justice Scalia's] more persuasive writings. And it is so because he cuts out the attack-dog tone and the over-the-top-cutesy examples, and relies only on superior analysis."
Posted at 17:32 by Howard Bashman



"Appeals court panel weighs legal rights of alleged 'dirty bomber'; U.S. citizen has been held since June 2002 as enemy combatant": CNN.com provides this report on today's Second Circuit oral argument.
Posted at 17:26 by Howard Bashman



The Associated Press is reporting: An article headlined "Court to Rule on 'Enemy Combatant' Label" reports on today's oral argument before the U.S. Court of Appeals for the Second Circuit in the case of alleged "dirty bomber" Jose Padilla.

In other news, you can access here an article headlined "Sniper Suspect Muhammad Guilty of Murder"; here "14 States Ask Courts to Block EPA Rule"; here "Judge: DNA Can Be Used in Peterson Case"; and here "U.S. Court to Arraign al-Qaida Suspects."
Posted at 16:13 by Howard Bashman



What explanation exists for this practice of the U.S. Court of Appeals for the Fourth Circuit? Whenever the U.S. Supreme Court announces that it has granted certiorari to review the merits of a decision that the U.S. Court of Appeals for the Fourth Circuit has issued, the Fourth Circuit adds a notation to its opinion stating that the opinion has been vacated due to the granting of certiorari. See this example of a case in which the U.S. Supreme Court granted review here.

I find this practice puzzling for several reasons. First, I am not aware of any other U.S. Court of Appeals that follows this practice. Rather, in the other circuits, to the best of my knowledge, a decision in which the U.S. Supreme Court has granted cert. remains valid precedent unless and until the U.S. Supreme Court rules that the court of appeals erred. And because the U.S. Supreme Court sometimes affirms the judgment in cases that it has agreed to review, the Fourth Circuit is vacating some opinions that deserve to remain available to be cited as authority during the pendency of U.S. Supreme Court review.

Second, it is odd that the Fourth Circuit "vacates" the opinion but does not vacate the judgment that the opinion supported. Perhaps the reason the Fourth Circuit does not vacate its judgment is because the Supreme Court has agreed to review the judgment when granting certiorari. But if the judgment remains in existence pending Supreme Court review, then why shouldn't the opinion that provided the reasons in support of the judgment also remain in existence.

Finally, it is common for a federal appellate court's decision to resolve a variety of issues, while the U.S. Supreme Court often grants review to resolve just a single issue. In such an instance, will the Fourth Circuit vacate the entire opinion pending U.S. Supreme Court review? In the case of reversal on just one of many issues resolved in a Fourth Circuit opinion, will the Fourth Circuit then reinstate the balance of its earlier opinion? Or will the Fourth Circuit on remand have to issue a new decision that decides the entire appeal anew? If that earlier vacated opinion decided a question of first impression that was not the subject of the Supreme Court's grant of review, and if that question then arises before a second Fourth Circuit panel while the case is pending before the Supreme Court, is that second Fourth Circuit panel constrained to follow the earlier panel's holding, or may the second panel ignore what the first panel did because the entire opinion has been vacated?

Given these questions, I'd welcome any insights readers of this blog can provide concerning the rationale behind the Fourth Circuit's practice of vacating its opinions in cases that the U.S. Supreme Court has agreed to review on the merits.
Posted at 15:33 by Howard Bashman



"Hope may, as the aphorist would have it, spring eternal, but the frustration of an expectation founded on hope alone, unanchored in objective reasonableness, is not a cognizable basis for relief on appeal." That passage, plus a handful of words that might expand your vocabulary, can be found in this opinion that First Circuit Judge Bruce M. Selya issued today on behalf of a unanimous three-judge panel.
Posted at 14:46 by Howard Bashman



"Court Dismisses Newdow Libel Suit; Man Suing to Rid 'Under God' From Pledge Abandons Suit": The Alliance Defense Fund has issued this press release today.
Posted at 14:38 by Howard Bashman



"Senate Democrats Block Confirmation of Brown and Kuhl": This article appears today in The Metropolitan News-Enterprise. And Nat Hentoff today has an op-ed entitled "Judicial activism and bias" in The Washington Times.
Posted at 14:26 by Howard Bashman



"Gay couples appeal ruling": Saturday's issue of The Asbury Park Press reported here that "The seven same-sex couples from New Jersey who are suing the state for the right to marry will appeal the state Superior Court ruling that dismissed their case."
Posted at 14:20 by Howard Bashman



"Grand jury to review bombing; Suspects still unclear in Law School attack": This article appears in today's issue of The Yale Daily News.
Posted at 14:00 by Howard Bashman



Today's U.S. Supreme Court Order List is now available online: You can access it here. You can access Justice Antonin Scalia's dissent from the denial of certiorari in Concrete Works of Colo., Inc. v. City and County of Denver at this link. And you can access Justice John Paul Stevens' opinion respecting the denial of certiorari in Torres v. Mullin here, and Justice Stephen G. Breyer's dissent from the denial of certiorari in that same case here.
Posted at 13:15 by Howard Bashman



"The 'Enemy Combatant' Case: Federal court hears appeal today on Padilla." New York Newsday offers this report today. And a related article is headlined "U.S. Is Citing WW II Case."
Posted at 12:32 by Howard Bashman



"Court Won't Reinstate Man's Conviction": The Associated Press provides this news from the U.S. Supreme Court.
Posted at 12:24 by Howard Bashman



"Federal and State Appellate Judges Give Advice on How You can be Most Effective in Briefing and Orally Arguing an Appeal": The November 2003 installment of my monthly appellate column, which appeared in print in The Legal Intelligencer one week ago today, is now available online here.

In response to the print version of my column, several readers have asked how they can obtain Senior Third Circuit Judge Ruggero J. Aldisert's new book "Winning on Appeal: Better Briefs and Oral Argument, Second Edition." The book is available for purchase from the National Institute for Trial Advocacy via this link.
Posted at 12:11 by Howard Bashman



The penalty phase at the John Allen Muhammad trial will begin at 2 p.m. today: That's what CNN has just reported. You can access the most timely online coverage of the trial here, via The Virginian-Pilot's "Sniper Trial Blog."
Posted at 12:05 by Howard Bashman



"High Court Won't Hear Death Penalty Case": Gina Holland of The Associated Press provides this report.
Posted at 12:02 by Howard Bashman



The jury has found John Allen Muhammad guilty on all four criminal charges against him: Next comes the penalty phase, in which the prosecution will be seeking the death penalty on the terrorism and capital murder charges.
Posted at 11:58 by Howard Bashman



The John Allen Muhammad jury has reached a verdict: That's what CNN has just reported. The verdict itself is likely to be announced in about fifteen minutes from now.
Posted at 11:39 by Howard Bashman



"Court Won't Hear Affirmative Action Case": Gina Holland of The Associated Press provides this report.
Posted at 11:07 by Howard Bashman



"Lawsuit against GSK dismissed": In case you missed Seventh Circuit Judge Richard A. Posner's latest opinion sitting by designation on the U.S. District Court for the Northern District of Illinois, you can access it at this link [see update, below, for a working link]. American City Business Journals provided this coverage of the ruling, which issued late last month.

Update: The link I provided to the ruling did not work. You can now access the opinion at this link.
Posted at 11:04 by Howard Bashman



Today's U.S. Supreme Court Order List: While we await the posting online of this morning's Order List, SCOTUSblog provides this summary of today's developments.
Posted at 10:00 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Court to Hear Case of Sept. 11 Suspect" and here an article headlined "Reagan Shooter Seeks Unsupervised Visits."

The first of those two articles reports on the oral argument that the U.S. Court of Appeals for the Second Circuit will be hearing this morning in the case of accused "dirty bomb" suspect Jose Padilla, a U.S. citizen arrested in the United States on terrorism charges who is being held in a military brig and being provided no opportunity to communicate with counsel or others. A longtime "How Appealing" reader plans to attend this morning's oral argument and may be so kind as to provide a first-hand report on the oral argument later today.
Posted at 09:43 by Howard Bashman



On the agenda: At 10 a.m. today, the U.S. Supreme Court is scheduled to release an Order List. And the Senate Judiciary Committee is scheduled to hold an executive business meeting (see the agenda here) at 5:30 p.m. today. You can access here my preview of the meeting, which I posted online Saturday evening.
Posted at 06:50 by Howard Bashman



In Monday's newspapers: The New York Times reports here that "Questions Rise Over Imprisoning Sex Offenders Past Their Terms." In news from the New York region, "Politics Rule Judgeships Upstate, Too." An article reports that "Big Tobacco Pays to Bash Tobacco." The "Giving" section contains an article headlined "The Gray Area For Nonprofits, Where Legal Is Questionable." And letters to the editor appear under the heading "The Judge and the Commandments."

The Washington Post contains a front page article headlined "Acquaintances Split On 'Brainwashing'; Malvo's Mind-Set At Heart of Defense." In other news, "Funding Bill Gets Clause on Embryo Patents; Ban Inserted Into Appropriations Measure Stirs Political, Philosophical Debate." And the newest installment of the "Washington Hearsay" column is headlined "Army's JAG Corps Deals With Reality Of War in Iraq."
Posted at 06:40 by Howard Bashman



In news and commentary from Alabama: The Montgomery Advertiser reports here that "Acting State Supreme Court Chief Justice Gorman Houston said Friday he would not recuse himself from hearing an appeal from former Chief Justice Roy Moore, who was stripped of his job Thursday by the Alabama Court of Judiciary." And The Mobile Register contains an editorial entitled "Don't over-celebrate ExxonMobil verdict."
Posted at 06:18 by Howard Bashman



"Thou Shalt Be Removed: Alabama's Ten Commandments judge is tossed from office. Did he want this all along?" This article appears in the November 24, 2003 issue of Time magazine.
Posted at 00:27 by Howard Bashman



With deepest sympathies: Via email, a reader asks that I link to this death notice that appeared in Saturday's issue of The Houston Chronicle.
Posted at 00:16 by Howard Bashman



"'Dirty bomb' suspect appeals detention; U.S. citizen has been held since June 2002 as enemy combatant": CNN.com provides this report on an oral argument that the U.S. Court of Appeals for the Second Circuit is scheduled to hear later this morning.
Posted at 00:02 by Howard Bashman



Sunday, November 16, 2003
"The Court and Guantanamo": Monday's edition of The New York Times will contain this editorial.
Posted at 23:44 by Howard Bashman



Divided three-judge Ninth Circuit panel holds that Congress lacks power under the Commerce Clause to prohibit the mere possession of a homemade machinegun: Suffice it to say that the Ninth Circuit's Commerce Clause jurisprudence has taken some rather unusual turns lately, and it will be interesting to see which decision (if any) sufficiently provokes the attention of the U.S. Supreme Court. You can access Thursday's machinegun ruling, in which Circuit Judge Alex Kozinski wrote the majority opinion, at this link.
Posted at 23:32 by Howard Bashman



The Seventh Circuit holds that a trial court improperly dismissed a federal prisoner's suit under Religious Freedom Restoration Act seeking to suspend a Bureau of Prisons' policy preventing the casting of spells or curses so that the prisoner may pursue his Wiccan faith: Circuit Judge Frank H. Easterbrook issued this very interesting, and quite short, opinion this past Monday.
Posted at 23:04 by Howard Bashman



Attention Coen Brothers: You may find the description of various unsuccessful methods of inflicting death found in this opinion issued on Wednesday by Sixth Circuit Judge Jeffrey S. Sutton to be of interest.
Posted at 22:48 by Howard Bashman



Death, taxes, winning the lottery, and creating a circuit split: For a decision involving all of these elements, see this opinion that a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued on Thursday.
Posted at 22:37 by Howard Bashman



Potential candidate for rehearing en banc in Fifth Circuit proves too good to refuse: Back on August 18, 2003, I had a post entitled "Dissenting Fifth Circuit judge identifies another potential candidate for rehearing en banc" about a decision that had issued that day. On November 12, 2003, the Fifth Circuit posted to its Web site this order, dated November 6, 2003, granting rehearing en banc in that case.
Posted at 22:26 by Howard Bashman



A dog's life: Bill Dyer notes here that "an Austin judge awarded $47,000 to a woman whose dog escaped and was run over while in the custody of a Petco store."
Posted at 22:15 by Howard Bashman



Third Circuit Judge Michael Chertoff issues his first published opinion: The Third Circuit released the opinion on Friday, and you can access it at this link.
Posted at 22:10 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Malvo's Attorneys Focus on Upbringing" and here an article headlined "Rudolph's Lawyers Try Death Penalty Block."
Posted at 19:33 by Howard Bashman



In Sunday's newspapers: The Boston Globe contains an article headlined "Guantanamo's 'child soldiers' in limbo." An editorial is entitled "Justice in jail." And columnist Jeff Jacoby has an essay entitled "The timeless meaning of marriage."

The Chicago Tribune today begins a three-day series entitled "Tossed out of America." Today's lead article is headlined "Immigration crackdown shatters Muslims' lives; A plane filled with deportees provides a glimpse into an initiative aimed at men from Islamic nations. Justified in the name of security, it hasn't yielded a single public charge of terrorism." And a related article reports that "Aspiring politician at center of policy."

The Washington Post reports here that "Sniper Trial Hosts Provide More Than Courtrooms." And M. Gregg Bloche has an op-ed entitled "When Science and Politics Mix -- and Should."

The Los Angeles Times reports here that "Energy Measure Would Limit Liability of MTBE Producers; Lawsuits over water contamination from the fuel additive would be stopped retroactively."

And the "Buzzwords" feature in The New York Times takes a look back at last week's 39-hour debate on the filibustering of judicial nominees.
Posted at 19:20 by Howard Bashman



The San Francisco Chronicle is reporting: Today's newspaper contains a lengthy front page article headlined "San Francisco Jails: Handling prisoners, Stripped of dignity; Lawsuits mount over jail's practices regarding strip searches, safety cells." A related article is headlined "Stories of Anguish; Jail has man disrobe to photograph his tattoos." In other news, "Davis praised for his bench appointments; He brought more diversity to the judiciary." And yesterday Bob Egelko had an article headlined "New dispute brewing over ban on forest road-building."
Posted at 15:00 by Howard Bashman



Last week at the Supreme Court of the United States: On Monday, November 10, 2003, the Court granted review in two different matters. You can access here the complete Order List that the Court issued on that date.

The more newsworthy of the two matters presents the following question: "Whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba." In Tuesday's issue of The New York Times, Linda Greenhouse reported that "Justices to Hear Case of Detainees at Guantanamo." And in Wednesday's newspaper, Greenhouse had a news analysis headlined "Guantanamo Case About Federal Turf." In yesterday's issue of The Oregonian, Robert Landauer had an op-ed entitled "No black hole for justices at high court." And Rich Lowry at National Review Online had an essay entitled "Fighting for the Enemy: Recent Gitmo coverage is media wishful thinking."

With respect to the other case in which review was granted last Monday, The San Francisco Chronicle had an article headlined "Justices to hear chip tiff; AMD wants Intel to send internal papers overseas." And law.com's Tony Mauro had previewed that case in an article headlined "In Discovery Case, All Parties Seek Review; Supreme Court asked to settle issue of federal courts' power to grant discovery for disputes before foreign tribunals."

On Wednesday, November 12, 2003, the Supreme Court issued its first decision of the Term in an argued case. In Barnhart v. Thomas, No. 02-763, the Court unanimously reversed the en banc ruling of the U.S. Court of Appeals for the Third Circuit in a social security disability case. The Social Security Administration employs a five-step sequential analysis to determine whether an applicant qualifies for disability benefits. Step four of the inquiry asks whether the applicant is capable of performing the tasks required by his or her previous job. If the answer is "yes," then the applicant's request for disability benefits will be denied. If the answer is "no," the inquiry proceeds to the fifth and final step, which examines whether other substantial gainful employment exists in the national economy that the applicant can perform. If the answer to step five is "no," then the applicant qualifies for disability benefits.

In the case before the Court, a New Jersey resident named Pauline Thomas -- who last worked as an elevator operator -- was seeking disability benefits. Automation caused her to lose her job as an elevator operator, and she maintained that it was irrelevant whether she could still perform that work because the job of elevator operator was no longer available. In essence, Thomas argued, where one's former work no longer provides a way in which to be gainfully employed, step four of the sequential analysis should be resolved in the applicant's favor even if the applicant would be able to perform that job if only the work still existed. A federal district court in New Jersey ruled against Thomas and in favor of the Commissioner of Social Security. A three-judge Third Circuit panel reportedly split three ways over how the case should be decided, and before the panel's ruling issued, the Third Circuit issued an order taking the case en banc. Following reargument en banc, the Third Circuit ruled 7-3 in favor of Thomas. The majority, in an opinion by Circuit Judge Samuel A. Alito, Jr., essentially concluded that it would be irrational to deny benefits to an applicant who could perform her prior work if that particular job no longer existed. Thus, in such an instance, consideration of the applicant's request for disability benefits should proceed to the fifth and final step of the sequential inquiry.

By a vote of 9-0, the Supreme Court reversed in an opinion written by Justice Antonin Scalia. The Supreme Court reasoned that the statutory language made clear that whether someone's prior work existed in the national economy was not a relevant consideration. And the Supreme Court explained that the Social Security Administration's approach merely used an applicant's ability to do his or her prior work as a proxy for the ability to do other similar jobs that likely exist in the economy. If the proxy sometimes proves imperfect, the Court explained, that is one of the drawbacks of having a huge administrative regime such as the Social Security system. But, the Social Security Administration is allowed to elect that approach over a system where step four is rendered meaningless whenever an applicant's job has disappeared from the national economy due to the march of progress. After all, the step five inquiry is much more labor intensive than the inquiry at step four. In the past, Judge Alito has been rumored as a possible U.S. Supreme Court nominee, but some have accused him of being a clone of Justice Scalia. Wednesday's ruling demonstrates that this is simply not true, and that in fact Judge Alito cares much more for the "little guy" than do any of the nine Justices currently serving on the Court. The Newark Star-Ledger, in its Thursday edition, reported that "Top court shuts door on Jersey City elevator operator's claim." And The Pittsburgh Post-Gazette reported here that "High court puts limits on disability claims."

The Supreme Court also heard oral argument in four cases last week. Tuesday's edition of The Olympian reported here that "Local case gets supreme hearing." On Wednesday, Slate's Dahlia Lithwick had an oral argument report entitled "The Accidental Tourist: If secondhand smoke kills, is the airline to blame? The Supreme Court deliberates." But the case that received the most oral argument coverage last week involved whether a federal age discrimination law allows the youngest of workers covered under that law to sue claiming that older workers received discriminatorily favorable treatment from their common employer. Linda Greenhouse on Thursday reported here that "Justices Mull Twist in Law on Age Bias." David G. Savage of The Los Angeles Times reported here that "Supreme Court Debates Age Discrimination Issue; Justices will decide if it's OK for a firm to give certain benefits only to older workers." Lyle Denniston of The Boston Globe reported here that "Case tests the limits of age-bias law; High court weighs defense contractor's benefits for workers." And Jan Crawford Greenburg of The Chicago Tribune reported here that "Justices urged to expand age-bias job law; Younger workers ask same benefits."

In other news pertaining to the Court from last week, The Associated Press reported here on Wednesday that "Supreme Court justice denies stay in Madster case." The AP yesterday had an article headlined "Twists mark judicial journey; Chief justice describes the process to reach U.S. Supreme Court." The student newspaper at William and Mary covered the same address in an article headlined "Humor and History, Courtesy of Chief Justice Rehnquist." The Concord Journal reported here on Thursday that "Miller award given to Supreme Court justice." An article from New York Newsday headlined "A Visit to the Capitol" reports on a visit by 70 students at Bais Yaakov Academy for Girls to see Justice Ruth Bader Ginsburg. And you can access here a report from St. Louis this past Thursday entitled "Clarence Thomas Tells Students He was a Victim of Racism."

Finally, Jacob T. Levy had an essay online at The New Republic entitled "Foreign Invasion" about the Court's seemingly increasing reliance on foreign law in deciding constitutional issues.
Posted at 13:15 by Howard Bashman



"Cyclist's strange DUI-manslaughter trial opens tomorrow; Prosecutors say Laura Roberts took prescription pills and drank beer before causing a fatal crash": This article appears in today's issue of The St. Petersburg Times.
Posted at 12:15 by Howard Bashman



The Montgomery Advertiser is reporting: You can access here an article headlined "One society connects many Bush nominees" and here an article headlined "Some fear huge jury awards create negative image." The newspaper today also contains an editorial entitled "Exxon outcome not reasonable."
Posted at 09:22 by Howard Bashman



This morning's Ten Commandments-related news and commentary: From Alabama, The Huntsville Times reports here that "Moore's options appear plentiful; Guessing game even includes a presidential bid." That newspaper also offers extensive reader reaction to last week's events. The Birmingham News reports here that "Two Moore allies lose high-level jobs in judiciary." The Times Daily reports here that "Records say Moore declined offer that may have saved job." And The Associated Press reports here that "Key aides fired after Moore's ouster."

From Georgia, The Atlanta Journal-Constitution offers an article headlined "Ten Commandments and small-town politics: Heated debate engulfs wary councils and commissions, especially in Georgia" and an article headlined "Preacher fights Commandments; Habersham Baptist sues to end display in courthouse." The Athens Banner-Herald reports here that "Barrow fight has its critics; Commandments flap makes some uneasy." The AP reports that "Barrow seeks dismissal of ACLU suit." The Gainesville Times reports here that "Judge still has ample support in Gainesville." And The Ledger-Enquirer contains an op-ed by Tim Chitwood entitled "Nothing Moore is new."

From Tennessee, The Knoxville News-Sentinel reports here that "God not an issue in Monroe; Commandments on wall, creator in resolution, with no wails, gnashing of teeth" and here that "Opinion mixed on adopting God resolution." And Sam Venable has an op-ed entitled "God can take care of Himself."

The San Antonio Express-News today contains an editorial entitled "Justice for Alabama judge." The Oregonian yesterday contained an editorial entitled "Even judges aren't above it." The St. Petersburg Times yesterday contained an editorial entitled "Consistent with the law." And The Providence Journal today contains an op-ed by Philip Terzian entitled "From Moses to Moore."
Posted at 08:58 by Howard Bashman



Saturday, November 15, 2003
Elsewhere in Saturday's newspapers: The Washington Times contains an article headlined "Memos of special interest on Hill" that begins, "Democrats on the Senate Judiciary Committee have worked in close concert with outside special-interest groups to defeat President Bush's judicial nominees, according to internal Democratic staff memos." In other news, "Moussaoui right to represent self revoked." And an article reports that "Sniper jury deliberates 4 hours, breaks for weekend."

In The Boston Globe, Lyle Denniston reports that "Judge bars Moussaoui from representing himself."

The Los Angeles Times reports here that "Judge Ends Moussaoui's Stint as Lawyer; The defendant's 'frivolous' pleadings are blamed. Standby attorneys take over." An editorial is entitled "The Value of Miranda." And letters to the editor appear under the heading "'Talkathon' on Bush's Judicial Nominations."
Posted at 23:01 by Howard Bashman



"On Campaign Trail, Edwards Defends Lawyer Role": This article will appear in Sunday's edition of The New York Times.
Posted at 22:58 by Howard Bashman



"Lynching Comparison Furthers Divisiveness": Sunday's issue of The Washington Post will contain an article that begins, "In the partisan debate over candidates for the federal judiciary, even the rhetoric is becoming a source of division."
Posted at 22:51 by Howard Bashman



"Charlottesville Tragedy: Two dead in Clifton Inn fire; They were recruiters for a New York law firm, along with an injured third woman." This very sad news appears in today's edition of The Richmond Times-Dispatch. Update: Additional coverage is available here from The New York Daily News and here from The New York Post.
Posted at 19:30 by Howard Bashman



A look back to the judicial confirmation talkathon and a look ahead to next week in the Senate Judiciary Committee: C-SPAN has made available online the video of this past week's marathon debate in the U.S. Senate over whether a filibuster should be used to block an up-or-down vote on judicial nominees. You can access the entire debate in convenient two-hour segments via this link. Some additional, related video coverage is available from C-SPAN here.

According to this notice from the Senate Judiciary Committee, a business meeting that had been scheduled for yesterday will be held on the evening of Monday, November 17, 2003. On the agenda for the umpeenth time is Sixth Circuit nominee Henry W. Saad. And making his first appearance on a business meeting agenda is Fourth Circuit nominee Claude A. Allen. Two days ago, The Associated Press reported here that "A vote on whether to send Michigan Court of Appeals Judge Henry Saad to the federal bench was again delayed Thursday, this time the victim of a 30-hour Senate debate on judicial nominees." Today, The Baltimore Sun contains an article headlined "Congress unlikely to vote on nominee from Va.; Md. senators had vowed fight over 4th Circuit seat." The article begins, "Prospects faded yesterday for the Senate to act this year on the nomination of Claude A. Allen, the Virginian chosen by President Bush to fill a federal appeals court seat formerly held by a Marylander." And in somewhat related news, yesterday The News and Observer of Raleigh, North Carolina reported here that "A U.S. senator says he doesn't buy federal judicial nominee Claude Allen's recent explanation of his use of the term 'queers' when he was a media spokesman for U.S. Sen. Jesse Helms 19 years ago. Sen. Dick Durbin, an Illinois Democrat, said Allen's sworn testimony two weeks ago to the Senate Judiciary Committee does not square with what Allen said in 1984 about the remark, already an issue in his confirmation." A related item appeared under the heading "Claude Allen's 'queers' comments in 1984 and what he says now."

Finally, on Wednesday, November 19, 2003 the Judiciary Committee is scheduled to hold a confirmation hearing for Fourth Circuit nominee William James Haynes II. Perhaps we will learn then whether Haynes has succeeded in his quest to obtain a residence within the Fourth Circuit (see this earlier post for more details).
Posted at 19:00 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Hilton's Ex-Boyfriend Sues Over Sex Video"; here "Democrats Rip GOP on Judicial Talkathon"; here "Court Issues New Stay in Schiavo Case"; here "Utah Mayor Wins Re-Election by Dice"; here "Judge: Saudis Beyond Reach of U.S. Courts" (plus, the ruling in question is accessible at this link); here "Muhammad Trial Jury to Resume Work Monday"; here "Illinois School in Church-State Fight"; and here "Appeals Court Upholds Officer's Promotion."
Posted at 18:54 by Howard Bashman



On this evening's episode of C-SPAN's "America and the Courts": According to C-SPAN's description, "Attorney General John Ashcroft speaks about the Patriot Act to the Federalist Society for Law and Public Policy Studies. His remarks come on Day 3 of the Society's 2003 National Lawyers Convention." Gina Holland of The Associated Press covered this morning's speech in an article headlined "Attorney General Defends Patriot Act." At the close of the article, Ms. Holland reports:
Ashcroft was warmly greeted by the several hundred lawyers who attended his early morning speech.

He got in a poke at a liberal rival group, the American Constitution Society, which held its first national meeting this year. Former Attorney General Janet Reno was one of the draws of the event, hosting a late night "dance party" for law students and lawyers.

"They let Janet Reno speak at a far more civilized hour," Ashcroft said. "How do you expect me to speak this morning and still be fresh for a John Ashcroft dance party this evening?"
You can learn more about this year's Federalist Society Convention at this link.
Posted at 18:42 by Howard Bashman



"City moves Ten Commandments": This article appears in today's issue of The Casper Star-Tribune. Relatedly, last week Slate published an essay by Emily Bazelon entitled "Monument From Hell: Make room for a Matthew Shepard hate monument in a town square near you."
Posted at 18:39 by Howard Bashman



In tomorrow's edition of The New York Times Magazine: Michael Sokolove has an article addressing "Should John Hinckley Go Free?" And Deborah Sontag's cover story, headlined "In a Homeland Far From Home," examines what happened to one man after the Bush Administration signed an agreement with Cambodia that allowed the repatriation of Cambodian nationals who had broken the law in America.
Posted at 13:45 by Howard Bashman



In news from Alabama: The Montgomery Advertiser today reports here that "Moore's team leans toward appeal" and here that "Democrats block Brown again." And The Birmingham News today contains an article headlined "Moore's first goal: 'Clear my mind.'"
Posted at 12:33 by Howard Bashman



The San Francisco Chronicle is reporting: While I was on vacation last week, Bob Egelko wasn't. Among the articles he wrote last week: "Internet providers face risk of libel, court rules; They could be sued over posting of malicious messages"; "U.S. offers to suspend new limit on abortions; Enforcement of law would wait until court hearings in March"; and "High court considers teen's poetic license."
Posted at 12:20 by Howard Bashman



"Debate Marathon Over Judges Ends, but the Battle Goes On; Senate Republicans and Democrats continue to hurl charges at one another as two more nominees are blocked." Today's issue of The Los Angeles Times contains this report. Elsewhere, The Sacramento Bee reports here that "Senate talkathon fails to rescue Bush court picks; The GOP is unable to stop Democratic filibusters, likely dooming the three nominations." The San Jose Mercury News reports here that "Senate stalemate over judicial nominees continues." FOXNews.com reports that "GOP, Dems Both Claim Victory in Judicial Fight." Today's edition of The Atlanta Journal-Constitution reports here that "Democrats block 3 Bush nominees," while tomorrow's issue will contain an op-ed by David A. Yalof entitled "It's the Supreme Court stupid." Finally, The New York Post today contains an editorial entitled "GOP Must Step Up."
Posted at 12:12 by Howard Bashman



"It's official: Sykes nominated for U.S. appeals court; If she's approved, Democrat Doyle will appoint replacement on state high court." This article appears today in The Milwaukee Journal Sentinel. The official White House announcement of the nomination can be accessed here.
Posted at 08:45 by Howard Bashman



In Saturday's newspapers: In The New York Times, Adam Liptak reports that "Sniper Defendant Working on His Boyish Appearance." In other news, "Exxon Is Ordered to Pay $11.9 Billion to Alabama." An article reports that "Grace Creditors Ask Judge to Step Aside Over Advisers." From northern Virginia comes news that "Judge Bars 9/11 Suspect From Being Own Lawyer." In business news, "Stewart Lawyers Attack Basis of U.S. Case." And in local news, "Man Charged in Wife's Suicide by His Gun Pleads Not Guilty" and "No Wiggle Room in a Window War."

The Washington Post reports here that "Muhammad Jury Begins Deliberating; Court Adjourns Without Verdict." In other news, "Lawyers Restored For Moussaoui." A front page article is headlined "At Colleges, an Affirmative Reaction; After Rulings, Recruiters Take a More Inclusive Approach to Diversity." In business news, "Exxon Mobil Told to Pay $11.9 Billion; Jury Finds Fraud in Alabama Gas Deal." An article reports that "Judge Rejects Saudi Terrorist Link; Suit Claimed Members of Royal Family Funded 9/11 Attackers." In news from Virginia, "Former Prince William Prosecutor Not Guilty of Obstruction." An editorial is entitled "No More Justice Moore." And an op-ed written by Thomas H. Kean and Lee H. Hamilton is entitled "9/11 Panel: Free to Probe."

Finally, OpinionJournal has posted online today an item headlined "'He Is Latino': Why Dems borked Estrada, in their own words."
Posted at 08:30 by Howard Bashman



"Judge calls Terri's Law intrusive; As the judge hints at striking down the law, players on both sides air their messages to local and national audiences." This article appears today in The St. Petersburg Times.
Posted at 08:23 by Howard Bashman



Ohio man would settle suit against FBI in exchange for receiving a house and a wife: And don't overlook his demands for free food and a little spending money. Today's issue of The Dayton Daily News contains this report.
Posted at 08:21 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Moussaoui Loses Right to Represent Self" (plus the trial court's order is accessible at this link); here "Ousted Judge Doesn't Think He's a Martyr"; here "Muhammad Trial Jury to Resume Work Monday"; here "Schiavo Husband's Suit May Proceed"; here "Opposition to USA Patriot Act Swells"; here "Boycott Stops Abortion Clinic Contractor"; and here "Judge Steps Down From Custody Fight."
Posted at 08:08 by Howard Bashman



"US enemy combatant legal challenge unfolds Monday": Reuters provides this preview of a case to be argued Monday before a three-judge panel of the U.S. Court of Appeals for the Second Circuit. Circuit Judges Rosemary S. Pooler, Barrington D. Parker, Jr., and Richard C. Wesley have been assigned to hear and decide the case. The central question presented is "Can the President declare an American citizen to be an 'enemy combatant' and place him in military custody with no access to counsel or visitors, and does a federal court (and which court?) have habeas corpus jurisdiction to examine the detention?"
Posted at 01:30 by Howard Bashman



Marathon debate on judicial nominees earns Republicans little more than two additional filibustered federal appellate court candidates: You can add Ninth Circuit nominee Carolyn B. Kuhl and D.C. Circuit nominee Janice Rogers Brown to the list of federal appellate court nominees whom the Democratic minority in the U.S. Senate has blocked from receiving an up-or-down vote on the merits. Yesterday, cloture motions on those two nominees and on Fifth Circuit nominee Priscilla R. Owen all failed. You can access the official roll call votes here (Brown), here (Kuhl), and here (Owen). The day before those votes occurred, President Bush appeared at the White House with those three nominees and delivered remarks and answered some questions from the press. A transcript and links to video of the event are available here. A separate statement issued after the cloture votes failed can be accessed here.

In today's issue of The New York Times, Neil A. Lewis has an article headlined "Bitter Senators Divided Anew on Judgeships." And today's issue of The Washington Post contains an article headlined "Senate Filibuster Ends With Talk of Next Stage in Fight."
Posted at 00:55 by Howard Bashman



Ten Commandments, the week that was: An article published in Thursday's issue of The New York Times had all but assured readers that Alabama's Court of the Judiciary wouldn't remove Roy S. Moore from the office of Alabama's Chief Justice. Of course, later Thursday morning the Court of the Judiciary did indeed remove Moore from office. You can access the decision at this link. Friday's edition of The NYTimes contained this report, plenty of coverage from The Montgomery Advertiser is available via this link, and coverage from Alabama's other major newspapers can be accessed via this link. Moore may appeal the decision to the court on which he once served, and the electorate in Alabama ultimately will have the power to reelect him as Chief Justice if both he and the voters are so inclined. We haven't heard anywhere near the last of this matter.

In a separate development, on Wednesday a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit affirmed a trial court's decision that refused to order the removal of a Ten Commandments monument located on the grounds of the Texas State Capitol. You can access the Fifth Circuit's ruling at this link.
Posted at 00:42 by Howard Bashman



"Attorney's Appellate-Law Blog Wins Readership; Readers Rave About Blog Devoted to Appellate Law": As Denise Howell so kindly noted, this past Wednesday The Los Angeles Daily Journal published a front-page profile of "How Appealing." You can access the full text of the profile online at "How Appealing Extra" at this link.
Posted at 00:33 by Howard Bashman



One more reason to visit "How Appealing" on Monday, December 1, 2003: At midnight on Monday, December 1, 2003, I will be posting online here the brand new installment of "20 questions for the appellate judge." December's interviewee is Seventh Circuit Judge Richard A. Posner. Judge Posner has already returned his answers to my questions (earning him the distinction of fastest to answer), and I can guarantee that you won't want to miss the December 2003 installment of the "20 questions" feature. It may very well qualify as the best one yet.
Posted at 00:27 by Howard Bashman



My attempt to give federal workers a three-day holiday for Veterans' Day was contrary to current law: As several readers promptly observed via email after reading my final pre-vacation blog post, the federal holiday known as Veterans' Day is celebrated on whichever day of the week November 11th happens to fall unless it falls on a Saturday or Sunday, in which case according to this Web site the holiday will be celebrated on Friday if the 11th falls on Saturday or on Monday if the 11th falls on a Sunday. A chart providing access to the dates on which federal holidays have been or will be celebrated from 1997 through 2010 can be found here.
Posted at 00:25 by Howard Bashman



Even the most enjoyable of vacations must come to an end: My wife, son, and I had a wonderful time visiting Walt Disney World, where the weather this time of year is considerably more pleasant than in Philadelphia, Pa. Among the highlights were: (1) seeing Cirque du Soleil La Nouba at Downtown Disney; (2) the Mission Space ride at Epcot; and the Animal Kingdom park.

Perhaps in recognition of my take on the U.S. Supreme Court's ruling in the Eldred case, the Disney resort where we had booked our stay upgraded us at check-in to the concierge level, which provided not only free breakfast and other goodies throughout the day, but also included complimentary access to The New York Times and The Wall Street Journal, in addition to everyone's favorite newspaper while living in a strange hotel, USA Today. So, while I was away, I wasn't totally out of the loop.

It will probably take me all weekend to catch-up sufficiently on the events of note that occurred while I was away this past week, but before turning in for the night I will begin by noting a few items of interest.
Posted at 00:00 by Howard Bashman



Saturday, November 08, 2003
See you soon: As I previously hinted here, my wife, son and I will be traveling to central Florida today on a greatly-anticipated vacation. Blogging will resume on Saturday, November 15, 2003.

In other news, late last night I dispatched to the December 2003 "20 questions for the appellate judge" interviewee -- Seventh Circuit Judge Richard A. Posner -- the questions that will form the basis for his interview. Judge Posner's "20 questions" interview is scheduled to appear online here on Monday, December 1, 2003. The questions, in my own humble opinion, turned out wonderfully, and I included many of the questions that readers of this Web log had suggested.

Readers with access to the print edition of The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, will find the November 2003 installment of my monthly appellate column in the Monday, November 10, 2003 issue. This month's column presents some of the best suggestions for improving appellate briefs and oral argument that appellate judges who have previously participated in the "20 questions" interviews have offered. You will be able to access that column online via this link sometime during the week of November 17th.

Monday, November 10th is the Veterans' Day federal holiday, and thus most federal and state appellate courts will be officially closed that day. Any readers with an inordinate amount of free time due to this blog's brief hiatus are invited to visit the many fine resources linked on the right-hand column of this page. Plus, you can rest-up to watch live the entire 30-hour marathon U.S. Senate debate on judges referenced here. The Senate Judiciary Committee on Wednesday, November 12, 2003 is scheduled to hold a confirmation hearing for some judicial nominees (as of yet unspecified), and additional details should at some point be available at this link.

I will not have computer access while I am away and will be unable to check or respond to emails sent to this Web log's email account until I return home. Also, it is possible that this blog's email account will become completely full, and unable to accept new messages, while I am away. I implore anyone who does email to use plain text and to not include any attachments. My family and I are looking forward to enjoying ourselves greatly next week. I wish the same for you and yours.
Posted at 07:40 by Howard Bashman



Available online at law.com: Tony Mauro reports on "The Man Behind the Pledge Case." Plus, you can access here a related article headlined "Newdow Says Civil Rights Groups of Little Help in Case." In other news, "Prosecutors Win Big in Terrorism Ruling; 2nd Circuit says government can detain material witnesses for grand jury inquiries." And an article reports that "Protest Law Gets Tough Appellate Hearing; 11th Circuit panel cites bias potential against group demonstrating at Masters Tournament."
Posted at 07:30 by Howard Bashman



"GOP Plans Marathon Senate Session": FOXNews.com reports here that "Weary of Senate Democrats' continued efforts to block President Bush's judicial nominees, Republicans have planned a 30-hour, all-night session Wednesday to force a marathon debate about Democratic stalling tactics that have left several nominations in limbo."
Posted at 00:04 by Howard Bashman



Friday, November 07, 2003
The Associated Press is reporting: Anne Gearan reports here that "Abortion Issue Heads Back to High Court." And in other news, "Prison Religious Rights Law Ruled Illegal."
Posted at 19:07 by Howard Bashman



"N.H. High Court Says Gay Sex Not Adultery": The Associated Press provides this report. And you can access today's ruling by the Supreme Court of New Hampshire at this link.
Posted at 16:45 by Howard Bashman



"Judge Rules on Recruiting Lawsuits; Solomon cases will continue": This article appears in today's issue of The Harvard Crimson. The Yale Daily News reports here today that "Judge lets schools determine access." And yesterday The Associated Press provided this report. I first reported on and linked to this ruling on Wednesday night, in a post you can access here.
Posted at 15:31 by Howard Bashman



"A matter of balance": An op-ed by Sherrilyn A. Ifill published today in The Baltimore Sun begins, "In an electrifying hearing before the Senate Judiciary Committee last week, Maryland Sens. Barbara A. Mikulski and Paul S. Sarbanes exposed the ugly side of a long-standing and important battle over judicial nominations to the 4th U.S. Circuit Court of Appeals."
Posted at 15:09 by Howard Bashman



"Brown nomination OK'd; filibuster likely": This article appears today in The Washington Times. The second paragraph of the article states, "During the same Senate Judiciary Committee meeting, the Rev. Al Sharpton, a Democratic presidential candidate, issued a statement reversing his earlier position on Justice Brown, who, like Mr. Sharpton, is black."
Posted at 13:27 by Howard Bashman



"Senate panel OKs Brown for court": The Sacramento Bee reports here today that "President Bush's choice of California Supreme Court Justice Janice Rogers Brown to a federal appeals court cleared the Senate Judiciary Committee Thursday on a 10-9 party-line vote, but that may be as far as her nomination goes."
Posted at 13:20 by Howard Bashman



"Charges Reinstated Against Jordanian Student": The Associated Press reports here that "A federal appeals court Friday reinstated charges against a Jordanian college student accused of lying about his associations with two of the Sept. 11 hijackers. The 2nd U.S. Circuit Court of Appeals reversed a lower court judge who had dismissed perjury charges against Osama Awadallah in April 2002. U.S. District Judge Shira Scheindlin had ruled that the government's jailing of material witnesses for a grand jury investigation into the Sept. 11, 2001, terrorist attacks was unconstitutional."

You can access today's ruling by the U.S. Court of Appeals for the Second Circuit at this link (majority opinion) and at this link (partially concurring opinion).
Posted at 12:37 by Howard Bashman



"Judge O'Scannlain Speaks at Federalist Society Meeting": Patrick of the "Patterico's Pontifications" blog was there yesterday and provides this report.
Posted at 10:30 by Howard Bashman



BREAKING NEWS -- Unanimous three-judge Sixth Circuit panel holds that portion of Religious Land Use and Institutionalized Persons Act applicable to prisoners violates the Establishment Clause: You can access today's ruling at this link (HTML) and at this link (PDF). Henceforth, in the Sixth Circuit the law will no longer be known as "RLUIPA" but rather as "RLUA." You can learn more about the law via this link.
Posted at 09:26 by Howard Bashman



"Vote on Pryor blocked again": The Birmingham News today contains this report. The Mobile Register reports here that "Senate Republicans fail to overcome filibuster blocking Alabama attorney general's nomination for federal judgeship." The Atlanta Journal-Constitution reports here that "Democrats block vote on judgeship." And The Montgomery Advertiser today reports here that "Democrats stop Pryor again." The Advertiser also contains an editorial entitled "Pryor's record belies allegations."
Posted at 07:39 by Howard Bashman



"Court rejects A&M bid to throw out Bonfire suits": The Houston Chronicle reports here today that "A federal appeals court Thursday denied Texas A&M University's request that the full court reconsider its motion to dismiss lawsuits from victims of the school's fatal Bonfire collapse. The New Orleans-based 5th U.S. Circuit Court of Appeals noted that not a single member of the court agreed with the request, which A&M filed after a three-member panel ruled in August that the victims' claims need to be heard by a jury."
Posted at 07:01 by Howard Bashman



In Friday's newspapers: In The New York Times, Neil A. Lewis reports that "For the G.O.P., a Mixed Day on Nominees." In other news, "Court Blocks New Statute That Limits Abortions." An article reports that "Creditors Seek Judge's Removal in Asbestos Case." In news from Virginia Beach, "Rifle Is Being Used as Linchpin in Sniper Case." In news from Texas, "Prosecutors Lay Out Case Against Scientist in Plague Case." You can access here an article headlined "Reduced Charges for Soldier Accused of Cowardice in Iraq." In other news, "Senators and Attorneys General Seek Investigation Into E.P.A. Rules Change." An article reports that "U.S. Prosecutors Ask Judge to Keep Stewart Charges Intact." And an obituary bears the headline "Roy Lucas, 61, Legal Theorist Who Helped Shape Roe Suit, Dies."

The Washington Post reports here that "Judge Blasts Moussaoui's Conduct; Terrorist Suspect Could Lose Right to Represent Himself." In news from Virginia Beach, you can access here an article headlined "Expert Ties Rifle to Sniper Shootings; Gun Was Discovered In Muhammad's Car"; here "Forensic Evidence Can Be Powerful but Soporific"; and here "An Ominous Image Takes Form; Mock-Up of Caprice Trunk Rolled Before Muhammad Jury." And in other news, "Air Force Translator Faces Trial."

Finally for now, The Christian Science Monitor reports here that "Bush takes quiet aim at 'green' laws; Methods range from easing regulations to siding with industry in lawsuits."
Posted at 06:31 by Howard Bashman



Thursday, November 06, 2003
"Judicial Nominee Approved 10-9; Democrats Expected to Filibuster Calif. Justice Brown": Friday's edition of The Washington Post will contain this report. And Friday's edition of The San Francisco Chronicle will report here that "Democrats made clear Thursday they intend to block California Supreme Court Justice Janice Rogers Brown from the nation's highest appellate court, even as she won 10-9 party-line approval of her nomination by the Senate Judiciary Committee."
Posted at 23:55 by Howard Bashman



Elsewhere in Thursday's newspapers: In The Los Angeles Times, David G. Savage reports here that "Nominee Is Critical of Big Government; Conservative California justice nominated for a key U.S. appeals court draws Democrats' ire" and here that "Vacancy Rate on Federal Bench Is at a 13-Year Low; The Senate has confirmed 68 of Bush's nominees this year. Experts say partisan complaints over four judges blur the picture." In other news, "Bush Signs Bill to Ban a Type of Abortion; Challenges are filed, and a federal judge in Nebraska quickly issues a temporary restraining order. The procedure's frequency is disputed." From Virginia Beach comes news that "Key Physical Evidence Is Presented in Sniper Trial." A news analysis reports that "Bryant Unlikely to Seek a Plea." In other news, "Religion, Science May Turn a Page Over Textbook in Texas; Conservatives want the state to reject a biology book or require editing of parts on evolution. Some say it may open the door to creationism." In news from Boston, "Death Debated for a Confessed Killer; U.S. attorneys push for capital punishment in Massachusetts, a state that bars executions." In news from Seattle, "In Plea Deal, Green River Killer Admits He Murdered 48 Women." In local news, "Religion Is at Center of Yearbook Battle; Fountain Valley High blocked seniors' attempt to spell out Christian messages in photograph." In other local news, "Video in Dispute in Teen Rape Case; At hearing, judge blocks spectator viewing of the alleged 2002 attack in Corona del Mar. Defense says it will challenge the tape as evidence." An article reports that "EPA Drops Its Cases Against Dozens of Alleged Polluters; In a policy reversal, the agency halts actions on Clean Air Act violations brought by the Clinton administration against coal-fired power plants." And in news from Mexico City, "No Time Limits on Mexico's 'Dirty War' Cases, Court Says; The ruling is expected to revive Fox's efforts to go after figures linked to leftists' disappearances."

In The Boston Globe, Lyle Denniston reports here that "Justices examine use of police roadblocks"; here that "N.J. court bars gay marriage"; and here that "Law bans late-term abortion procedure; US judge limits its application." In other news, "Jury hears Sampson confess murders; 'I'm not a sadist,' he says in police tape." In news from Seattle, "Defendant confesses to 48 murders; In plea agreement, Green River killer gets life in prison." An article reports that "Former AG says he promised legal fee in tobacco suit; Testifies case was a gamble." And an op-ed by columnist Ellen Goodman is entitled "Who controls your life or death choice?"

The Washington Times reports here that "Justice to honor appeals judge." In other news, "Bush signs partial-birth ban." An article reports that "Moussaoui role as '20th hijacker' unclear." And in news from Virginia Beach, you can access here an article headlined "Agent says ransom note found in suspect's laptop" and here an article headlined "Lonely vigil for a sister."

USA Today reports here that "'Partial-birth' ban made law; Abortion restriction faces immediate legal challenges." In other news, "Green River Killer gets life; Serial strangler confesses to 48 slayings." And in related news, "Killer's deal could spare others; Experts say it raises bar for Wash. death penalty cases."
Posted at 22:55 by Howard Bashman



Available online from The Harvard Law Record: You can access here an article headlined "Internal Law Review report leaked; Solutions examined to correct gender disparity would yield little change, but experience of other schools offers hope." And a related editorial is entitled "Why speak the truth?"
Posted at 22:50 by Howard Bashman



Available online at law.com: An article reports that "D.C. Circuit Nominee Moves a Step Closer to Filibuster." Jonathan Ringel reports that "Augusta National Golf Club Dispute Sparks Federal Free-Speech Argument." In other news, "Extension Urged for Felons' DNA Test Requests; Florida Supreme Court hears arguments today on deadline for tests." You can access here an article headlined "Judge Stalls Enforcement of New Ban on Abortion; Plaintiffs found likely to prove law is unconstitutional." And from New York comes news that "Government Defends Charging Stewart With Securities Fraud."
Posted at 22:42 by Howard Bashman



"Stage Set for Judge Brown Filibuster": David G. Savage of The Los Angeles Times provides this report.
Posted at 22:35 by Howard Bashman



"Justice Department's Civil Rights Unit Will Enforce Abortion Ban": This evening's edition of NPR's "All Things Considered" included a report described as follows:
The Justice Department plans to prosecute violators of the new ban on certain late-term abortions through the department's civil rights division, rather than its criminal division. Opponents of the new law say the decision opens up new ground in the debate over medical ethics and rights issues.
You can access the audio report at this link (Real Player required).
Posted at 22:25 by Howard Bashman



"Federal appeals court Judge Hugh Bownes dies": The Associated Press reports here that "Retired federal appeals court Judge Hugh Bownes, who issued a landmark ruling that prompted the state of New Hampshire to upgrade its dilapidated prison systems, has died. He was 83. Bownes died at Yale-New Haven Hospital in New Haven, Conn., on Wednesday, said Mark D'Antonio, a hospital spokesman."
Posted at 22:24 by Howard Bashman



One Lancaster County, Pennsylvania judge nominated to replace another: The White House today nominated Lawrence F. Stengel to fill a forthcoming vacancy on the U.S. District Court for the Eastern District of Pennsylvania. Early last month, The Lancaster New Era reported here that "Stengel step closer to federal bench."
Posted at 22:23 by Howard Bashman



C-SPAN has made available the video of today's Senate Judiciary Committee executive business meeting at which D.C. Circuit nominee Janice Rogers Brown's nomination was approved on a party-line vote: You can view the meeting by clicking here (1 hour and 30 minutes; Real Player required).
Posted at 22:10 by Howard Bashman



The Associated Press is reporting: David Kravets reports that "Judges in N.Y., Calif. Block Abortion Law." As predicted, the federal government is now 0-3 in trying to defend the new law's constitutionality. Indeed, the order issued earlier today in the U.S. District Court for the Southern District of New York suggests that the federal government's lawyer conceded the law's unconstitutionality. Oops!

And in other news, an article headlined "Judge Warns Moussaoui Again on Filings" reports that "A federal judge told terrorism defendant Zacarias Moussaoui on Thursday that she would end his self-representation if he files any more 'frivolous, scandalous, disrespectful or repetitive pleadings.'" A glance at the Fourth Circuit's docket entries suggests that those are the type of pleadings in which Moussaoui has chosen to specialize.
Posted at 20:56 by Howard Bashman



"Supreme Court asks for more input on secret Sept. 11 case; Before deciding whether to take the case, the justices request that the Bush administration defend its secrecy." Warren Richey will have this article in Friday's issue of The Christian Science Monitor.
Posted at 20:44 by Howard Bashman



This evening's Ten Commandments news: The Atlanta Journal-Constitution will report in Friday's edition that "Moore takes Commandments battle to Barrow." AccessNorthGa.com reports here that "Justice Moore speaks in Winder" and here that "Another county plans to display Ten Commandments." From Alabama, The Huntsville Times reports here that "Moore supporters set rally in city; Statewide tour in advance of judge's trial includes a Huntsville stop Monday." And the editor of The Montgomery Independent has an essay entitled "Faith and religion is not left solely to Roy Moore." Finally, The Associated Press reports here from Minnesota that "MCLU wants Ten Commandments Removed From Duluth City Property."
Posted at 17:15 by Howard Bashman



"Judging Pryor: Attorney general deserves up-down vote in Senate." This editorial appears today in The Birmingham News.
Posted at 17:06 by Howard Bashman



"Senate Panel Narrowly Backs Bush Nominee for U.S. Court": The New York Times provides this news update. You can also find mention of the news here early in the transcript from today's White House press briefing.
Posted at 16:50 by Howard Bashman



"Bush signs abortion measure; Ban on late-term procedure goes into effect today": Bob Egelko provides this report today in The San Francisco Chronicle.
Posted at 16:43 by Howard Bashman



"Federal Judge in N.Y. Blocks Abortion Ban": The Associated Press reports here that "In a ruling that could have coast-to-coast effect, a federal judge Thursday blocked the government's new ban on certain late-term abortions - the second court victory for abortion-rights advocates since President Bush signed the law." You can access the text of the federal district judge's order at this link, via FindLaw.
Posted at 14:49 by Howard Bashman



"Fugitive says he returned for wife; Deported Nazi guard back in a U.S. court": The Detroit Free Press today contains this report.
Posted at 14:41 by Howard Bashman



"Blacks say Bush played race card with court pick": An article in today's edition of The Atlanta Journal-Constitution begins, "Critics and defenders of California Supreme Court Justice Janice Rogers Brown attacked each other Wednesday, the eve of the Senate Judiciary Committee's scheduled vote on her nomination to the U.S. Court of Appeals for the District of Columbia." And from the executive business meeting that the Senate Judiciary Committee held today, you can access the prepared statements of the following U.S. Senators by clicking on their names: Orrin G. Hatch (R-UT); Patrick J. Leahy (D-VT); Russ Feingold (D-WI); and John Cornyn (R-TX).
Posted at 14:33 by Howard Bashman



"The King is dead." So begins the majority opinion issued today by a divided Ninth Circuit panel in a case that presents the question "To what extent may a film maker, under the banner of 'fair use,' incorporate video clips, photographs, and music into a biography about Elvis Presley without permission from the copyright owners of those materials?" You can access today's complete ruling at this link.
Posted at 13:31 by Howard Bashman



"Supreme Court hears Illinois roadblock case": Jan Crawford Greenburg has this report in today's issue of The Chicago Tribune.
Posted at 13:28 by Howard Bashman



Access online the official roll call vote tally on the Pryor cloture request: It is available here. This time the vote was 51 for cloture and 43 against, with six Senators not voting. It takes 60 votes in favor to invoke cloture.
Posted at 13:23 by Howard Bashman



"Democrats Block Pryor From Court Seat": Jesse J. Holland of The Associated Press provides this report.
Posted at 13:08 by Howard Bashman



"Judge Pickering's Revenge: The judicial-confirmation battle has already hurt Democrats." Sean Rushton has this essay today at National Review Online.
Posted at 13:05 by Howard Bashman



The Senate Judiciary Committee votes in favor of Janice Rogers Brown by a party-line vote of 10-9: And now the committee is voting on the nomination of Third Circuit nominee D. Michael Fisher. Update: The vote on Pennsylvania Attorney General Fisher was 12-0, with seven Democrats voting "present."
Posted at 11:11 by Howard Bashman



"Southern Discomfort: Judicial filibusters aren't helping Democrats in Dixie." This editorial appears today in The Wall Street Journal.
Posted at 10:57 by Howard Bashman



The cloture vote on Bill Pryor's Eleventh Circuit nomination has been pushed back to noon today: In case anyone is keeping track.
Posted at 10:54 by Howard Bashman



In news from Wisconsin: The Milwaukee Journal Sentinel today contains an article headlined "Senate approves marriage bill; Doyle critical, but doesn't vow veto" that begins, "The Senate Wednesday approved legislation defining marriage as strictly a union between a man and a woman, and sent the measure to Gov. Jim Doyle, who called it divisive but stopped short of promising a veto."
Posted at 10:43 by Howard Bashman



"Kin Win Ruling in Fla. Feeding Tube Case": The Associated Press provides this report.
Posted at 10:38 by Howard Bashman



Thanks to C-SPAN: C-SPAN3 is broadcasting today's Senate Judiciary Committee business meeting (see the agenda here), which remains underway at this time. You can view the broadcast via this link. And moments from now the full U.S. Senate will begin a one hour debate on the request to invoke cloture to allow a vote on the nomination of William H. Pryor, Jr. to serve on the Eleventh Circuit. You can view that debate and vote on C-SPAN2 via this link.
Posted at 10:27 by Howard Bashman



"Defendants fare better on appeal, study finds": The Houston Chronicle today contains an article that begins, "Defendants are more than twice as likely to win reversals of adverse judgments than are plaintiffs who take their cases to the state's 14 intermediate courts of appeals, a study by two Houston lawyers found."
Posted at 09:15 by Howard Bashman



On the agenda: At 9:30 a.m. today, the Senate Judiciary Committee is scheduled to hold an executive business meeting. The federal appellate court nominees on the agenda for a vote at today's meeting are D.C. Circuit nominee Janice Rogers Brown, Third Circuit nominee D. Michael Fisher, and Sixth Circuit nominee Henry W. Saad. The first two of those three individuals may actually have their nominations voted on today.

At 10:30 a.m. today, the full U.S. Senate is scheduled (see page two of this PDF document) to debate for one hour the second motion to invoke cloture on the filibuster preventing a vote on the nomination of William H. Pryor, Jr. to serve on the U.S. Court of Appeals for the Eleventh Circuit. The first vote to invoke cloture on Pryor's nomination occurred on July 31, 2003 and gained only 53 of the necessary 60 votes in favor of cloture, with 44 Senators voting against, and three not voting.
Posted at 08:50 by Howard Bashman



"Good and Evil at the Supreme Court; The high court's art dares to praise public pieties." Claudia Winkler today has this essay online at The Weekly Standard.
Posted at 08:44 by Howard Bashman



"Moore's lawyers denied 4-year-old probe records": The Birmingham News today contains this report. And The Associated Press reports here that "Supporters of suspended Chief Justice Roy Moore plan to tour Alabama in the days before Moore's trial next week on judicial ethics charges."
Posted at 07:01 by Howard Bashman



"GOP to push for vote on Pryor again": This article appears in today's edition of The Montgomery Advertiser.
Posted at 06:59 by Howard Bashman



In Thursday's newspapers: The New York Times reports here that "Bush Signs Ban on a Procedure for Abortions." A related news analysis is headlined "In Anti-Abortion Campaign, One Leap for Incrementalism." In other related coverage, "Extent of Ban Is Questioned." And an editorial is entitled "Challenging a Mendacious Law." In other news, Linda Greenhouse has an article headlined "When Can Drivers Be Halted? Justices Take Up Issue Anew." In news from Virginia Beach, "DNA on Rifle Is Very Likely From Suspect, Analyst Says." An article reports that "Florida Governor Seeks to Toss Out Suit on Feeding Tube." From Colorado comes a report that "Soldier Accused as Coward Says He Is Guilty Only of Panic Attack." In news from Seattle, "In Deal for Life, Man Admits Killing 48 Women." An article reports that "Lawyers at E.P.A. Say It Will Drop Pollution Cases." And in local news, "Death Penalty Trial Begins in an Alleged Gang Murder."

The Washington Post reports here that "Bush Signs Ban on Late-Term Abortions Into Effect; Civil Rights Agency To Enforce Law; Lawsuits Are Filed." Charles Lane reports that "High Court Hears Arguments On 'Informational' Roadblocks." In news from Virginia Beach, "DNA and Fingerprints Offered at Sniper Trial; Evidence Also Includes Threatening Recording." You can access here an article headlined "Al Qaeda Effort to Enter U.S. in August 2001 Reported." In news from Seattle, "Green River Suspect Admits to 48 Murders." From Mexico City comes a report that "Mexico To Allow 'Dirty War' Trials; Court Strikes Down Statute of Limitations." In news from Virginia, "How Jury Got Banned Evidence Still Unknown; Federal Judge in Murder Case Remains Baffled After Contentious Hearing." And in other news from Virginia, "Prosecutors Describe Gang-Style Execution."
Posted at 06:35 by Howard Bashman



"Sharpton breaks ranks on Brown": The Washington Times reports here today that "The Rev. Al Sharpton implored Senate Democrats yesterday not to filibuster President Bush's nomination of California Supreme Court Justice Janice Rogers Brown to the nation's second-highest federal court."
Posted at 06:30 by Howard Bashman



Wednesday, November 05, 2003
"Vacancy Rate Low for Federal Courts": This article by David G. Savage will appear in Thursday's edition of The Los Angeles Times.
Posted at 23:27 by Howard Bashman



"The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore." Law Professor Rick Hasen's new book is officially celebrating its publication, and you can access all the details here. Rick kindly had his publisher send me a copy, and it is quite a handsome volume. I look forward to reading it soon.
Posted at 23:26 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Los Angeles Times reports here that "Microsoft Settlement Is Questioned; Appeals court judges express concern about the lack of competition two years after antitrust pact was struck." An article reports that "U.S. Plans Second Trial for Quattrone; Prosecutors might gain by adding emotion to case, experts say. Defense also has chance to fix missteps." In other retrial news, "Former Oakland Officers May Be Retried; Prosecutors plan to return to court in a case that led to a deadlocked jury. The three 'Riders' are accused of beating and framing suspects." In local news, "L.A. Unified Loses Lawsuit Over Land; The district is told to pay $10 million more for a parcel slated to become a campus sports field." An article reports that "Meeting Law Was Violated, Court Says." And a letter to the editor appears under the heading "Guantanamo Detainees Deserve No 'Rights.'"

The Washington Times reports here that "Ad drubs Edwards on court nominee." In news from Denver, "Mother appeals ruling on gays." And an article reports that "Sniper suspect fascinates gallery."

USA Today reports here that "FBI has new 9/11 hijacking suspect; Operative left USA before plan realized." And Michael Newdow has a letter to the editor that appears under the heading "Removing religion is not imposing a view."

The Boston Globe reports here that "Law firms accuse state of breaching tobacco deal." In other news, "Penalty phase begins in Sampson case; Jurors to decide if killer should die." An article reports that "New rule threatens inmates' advocates." You can access here an article headlined "Family wins court fight on burial fee." In sports-related news, "Open hearing granted over Yankees' charges." And an editorial is entitled "Another abortion attack."
Posted at 22:55 by Howard Bashman



Available online from law.com: Tony Mauro reports that "In Discovery Case, All Parties Seek Review; Supreme Court asked to settle issue of federal courts' power to grant discovery for disputes before foreign tribunals." In news from New York, "Civil Rights Lawyer Stewart Must Face Charges; Defense attorney had argued she reached non-prosecution agreement with government." In news from California, "District Attorney to Retry 'Riders' Case." And an article reports that "Hip-Hop Band Sues Fox Over New Sitcom's Name."
Posted at 22:44 by Howard Bashman



The death penalty and a jury's question about whether life means life without parole: Today a divided three-judge panel of the U.S. Court of Appeals for the Tenth Circuit affirmed a federal district court's ruling that set aside a state inmate's death sentence because the state trial court had refused to tell the jury whether a life sentence meant life without parole. You can access today's decision at this link.
Posted at 22:35 by Howard Bashman



New Jersey federal district court refuses to issue preliminary injunction to suspend the Solomon Amendment as unconstitutional: You can access today's ruling by the U.S. District Court for the District of New Jersey at this link (part one) and at this link (part two). This article from tomorrow's edition of The Christian Science Monitor, headlined "Law schools revolt over Pentagon recruitment on campus; Some have filed suit against the military in protest of what they see as discrimination towards gays in the service," explains what's at issue in the litigation. Thanks so very much to the reader who emailed to advise me of this ruling.
Posted at 22:15 by Howard Bashman



Tonight's music selection: "The Hardest Button To Button," by The White Stripes (Real Player required).
Posted at 22:11 by Howard Bashman



Taking this show on the road: Next week, instead of spending time with friends and colleagues here and here, I will be spending time with my wife and son here. And I'm very much looking forward to it.

I'm also very much looking forward to accepting a most kind invitation to speak at Harvard Law School as the guest of the Harvard Journal of Law and Technology. Details of my visit remain to be determined, but it will be great to be at Harvard and in the Boston area generally, and I hope to be able to visit with many admirers of this blog who are located there.
Posted at 20:59 by Howard Bashman



"Law schools revolt over Pentagon recruitment on campus; Some have filed suit against the military in protest of what they see as discrimination towards gays in the service." This article will appear in Thursday's issue of The Christian Science Monitor.
Posted at 20:48 by Howard Bashman



"Discrimination as to Judicial Nominees": Stuart Buck, at his blog, offers these thoughts.
Posted at 20:06 by Howard Bashman



"Conservative group launches attack ad against Edwards in S.C." The Associated Press provides this report. You can access The Committee for Justice's television commercial at this link (Windows Media Player required).
Posted at 20:04 by Howard Bashman



"Judge dismisses lawsuit that sought to legalize gay marriage": The Associated Press provides this report from Trenton, New Jersey. The opinion can now be accessed both here and here.
Posted at 17:37 by Howard Bashman



The Associated Press is reporting: Gina Holland reports here that "High Court Hears Police Roadblocks Case." In other news, you can access here an article headlined "Green River Plea May Crimp Death Penalty"; here "Tearful Families Watch Green River Pleas"; here "Agent Describes Residue at Sniper Trial"; here "USDA Settles Class-Action Lawsuit"; here "Aborted Fetus' DNA Brings Rape Conviction"; and here "Contractor Quits Abortion Clinic Project."
Posted at 17:13 by Howard Bashman



Order enjoining Partial-Birth Abortion Ban Act of 2003 is available online: You can access it here, via FindLaw.
Posted at 16:46 by Howard Bashman



BREAKING NEWS -- New Jersey state trial court refuses to recognize constitutional right to same-sex marriage: You can access today's ruling of the Superior Court of New Jersey, Law Division-Mercer County, at this link.
Posted at 16:22 by Howard Bashman



"20 questions for the appellate judge" update: Associate Justice William W. Bedsworth of California's Fourth District Court of Appeal will be the June 2004 interviewee. Justice Bedsworth writes the wonderfully clever "A Criminal Waste of Space" column that I try to link to each month (see this archive for more).

Thanks to everyone who emailed to suggest questions for December 2003's interviewee, Seventh Circuit Judge Richard A. Posner. For those who desire some additional reading material to prepare for Judge Posner's "20 questions" interview, you can access here his Slate diary, here a profile by Dahlia Lithwick, and here what seems to be the text of The New Yorker's profile published in late 2001.
Posted at 16:00 by Howard Bashman



"Judge Blocks Partial-Birth Abortion Ban": The Associated Press reports here that "A federal judge blocked implementation of a federal ban on certain late-term abortions Wednesday less than an hour after President Bush signed the ban into law. U.S. District Judge Richard Kopf issued a temporary restraining order citing concerns that the law did not contain an exception for preserving the health of the woman seeking the abortion. He said his order would apply only to the four doctors who filed the lawsuit in Nebraska."

In connection with my earlier posting on this topic, Marty Lederman of "SCOTUSblog" emails:
It's a common misconception to think that there's a hard question whether a district court's injunctive power extends beyond the judicial district in which the judge sits. The answer is that of course it does: A judge can, for instance, enjoin a defendant from enforcing a statute against a named plaintiff, and that injunction (ordinarily) will apply to the parties wherever they might reside during the pendency of the injunction.

The real question -- which district courts and courts of appeals occasionally answer incorrectly -- is whether a district court's (or court of appeals') declaration that a statute is unconstitutional has the effect of enjoining the defendant from enforcing the statute against parties not before the court. The answer to that should be "no." Absent a special statutory review provision allowing a single party to obtain a judgment restraining enforcement of a statute in its entirety, and in the absence of class certification, prevailing plaintiffs are entitled only to a judgment that declares a challenged statute unlawful and/or enjoins its enforcement or application as to those plaintiffs. See, e.g., U.S. Department of Defense v. Meinhold, 510 U.S. 939 (1993); Virginia Society of Humane Life v. FEC, 263 F.3d 379, 392-94 (CA4 2000); Meinhold v. U.S. Department of Defense, 34 F.3d 1469, 1480 (CA9 1994); Ameron v. Army Corps of Engineers, 787 F.2d 875, 888 (CA3 1986); National Center for Immigrants' Rights v. INS, 743 F.2d 1365, 1371-72 (CA9 1984). Indeed, a district court's decision would not even collaterally estop the government from enforcing the statute against nonparties, in the extremely unlikely event the government would choose to do so. See U.S. v. Mendoza, 464 U.S. 154 (1984).

Accordingly, the "nationwide" effect of a district court injunction in one of these cases should depend upon the identity of the plaintiffs, and/or the class they represent. The certified class might be so large that an injunction will, in effect, cover all possible applications of the statute throughout the U.S. -- in which case the government will not enforce it unless and until the injunction is overturned. And in that case, there will be no occasion for a contrary ruling from another district court -- or, more to the point, a contrary ruling will not affect the impact of the first judge's injunction. But if, instead, a particular injunction applies only to a circumscribed plaintiff class, then the government might have the practical option of attempting to generate a "circuit split" before it petitions for cert. In that case, it might seek to obtain contrary rulings from other district courts, as to other plaintiffs -- and those district courts ordinarily are not bound by stare decisis to follow the lead of the first court, even within the same district.
Thanks, Marty, for sharing these thoughts.
Posted at 15:24 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Bush Signs Partial Birth Abortion Ban" and here an article headlined "Judge Says He May Block Abortion Ban." That second article reports that "the judge indicated his ruling would likely would apply only to Dr. LeRoy Carhart of Bellevue and three other physicians who perform abortions and who filed the lawsuit. 'I doubt it will be nationwide,' he said."
Posted at 14:12 by Howard Bashman



Anticipating the court challenges to the "partial birth" abortion ban: This afternoon President Bush will sign into law a federal ban on "partial birth" abortions. You can access the legislation at this link. Various court challenges have already been filed against this soon-to-be law, and it is widely anticipated that the federal courts will find the law to be unconstitutional.

But, of course, that's only where things start to get interesting. First, it remains to be seen on which grounds the law will be struck down. Of course, a leading candidate is the argument that the law is unconstitutional under the U.S. Supreme Court's 5-4 ruling in Stenberg v. Carhart, which declared unconstitutional a Nebraska state law intended to ban "partial birth" abortions. The federal law could also be found to exceed Congress's power under the Commerce Clause. And, presumably, opponents of the law will also be raising other argument against its legality.

Second, challenges to the law, whether successful or not, will raise interesting procedural questions. For example, may a federal district court declare the law unconstitutional across the entire Nation, or will the effect of such a ruling be limited to the judicial district or the State in which the federal district court is based? If a particular federal district judge, say one based in the Central District of California, holds the law to be unconstitutional, will that ruling preclude a different federal district judge in that very same district from holding the law to be constitutional? What if, conversely, the first federal district judge in the Central District of California to rule holds that the law is constitutional, will that preclude another judge in that same district from holding the law to be unconstitutional? I anticipate that most federal district judges will find the law to be unconstitutional, but perhaps there will be some who disagree.

In any event, the question of this law's constitutionality will likely be before one or more federal appellate courts in short order. It will be interesting to see whether those U.S. Courts of Appeals will expedite their consideration of the law's constitutionality to get the matter before the U.S. Supreme Court as quickly as possible. Thus, today will merely be the beginning of a long and potentially interesting process involving challenges to the brand new law that seeks to prohibit so-called "partial birth" abortions.
Posted at 12:32 by Howard Bashman



"Citizens May Pay in Ten Commandments Case": The Associated Press provides this report from Montgomery, Alabama.
Posted at 11:55 by Howard Bashman



"ABA Litigation News article on Law Blogs": "Ernie the Attorney" has some interesting thoughts about this article (which I hadn't seen until now), and he concludes by observing that "a caveman wouldn't regard a cellphone as a particularly significant tool, unless maybe he could use it to smash rocks."
Posted at 11:40 by Howard Bashman



"A Bad Fit for a Key Court": In this editorial published today, The Los Angeles Times opposes the confirmation of California Supreme Court Justice Janice Rogers Brown to serve on the U.S. Court of Appeals for the D.C. Circuit.
Posted at 11:05 by Howard Bashman



"Fed Judge Questions Proposed Abortion Ban": The Associated Press reports here that "A federal judge indicated Wednesday that he had serious problems with a ban on certain late-term abortions that President Bush was to sign into law later in the day. U.S. District Judge Richard Kopf expressed his concerns at the start of a hearing at which abortion supporters asked the judge to block implementation of the law."
Posted at 11:02 by Howard Bashman



"Bush to Sign Partial Birth Abortion Ban": The Associated Press provides this report. Only time will tell whether it will be merely a matter of minutes, hours, or days after this afternoon's signing before a court declares the law unconstitutional.
Posted at 10:14 by Howard Bashman



"When it comes to The Pledge, these kids are in the visible": The Seattle Post-Intelligencer today contains an article that begins, "Note to old people in long robes who make important decisions: Snipping the 'G' word out of the Pledge of Allegiance may be a big, fat, dumb idea."
Posted at 10:10 by Howard Bashman



"Koh to head Law School; New dean will serve five-year term": This article appears today in The Yale Daily News. And The Harvard Crimson reports here today that "Overseer Harold Koh ’75 Appointed Dean of Yale Law School."
Posted at 10:07 by Howard Bashman



More Ten Commandments news and commentary: The Atlanta Journal-Constitution today reports here that "Cherokee OKs Commandments display; All discussion held behind closed doors." And The Crimson White reports here today that "Supreme Court rejects Ten Commandments appeal."

The Jackson Sun today contains an editorial entitled "Alabama's Moore should admit defeat." The Seattle Post-Intelligencer contains an editorial headlined "Court's decision wise." The Palm Beach Post contains an editorial entitled "The last commandment." And yesterday The Huntsville Times contained an editorial entitled "Court rejects Moore: It should be no surprise that the Supreme Court refused Moore's appeals."
Posted at 09:59 by Howard Bashman



"Senate wants filibuster question decided out of court": This article appears in today's edition of The Hill.
Posted at 09:51 by Howard Bashman



Available at National Review Online: Jack McMullen has an essay entitled "Leahy’s Confirmation Threat: The war on judges." And Clay S. Conrad has an essay entitled "Justice Goes to Pot: Overcoming a flawed medical-marijuana policy."
Posted at 09:49 by Howard Bashman



In Pennsylvania, Democrats achieve sweep in races for statewide judicial office: Today's issue of The Pittsburgh Post-Gazette reports here that "Baer wins Supreme Court race; Democrats see sweep in statewide contests" and here that "Judicial results please Democrats." The Associated Press, meanwhile, reports here that "Democratic candidate Max Baer wins Pa. Supreme Court seat."
Posted at 09:29 by Howard Bashman



"Senators plan Thursday vote on Pryor": This article appears in today's edition of The Mobile Register. And The Birmingham News reports here that "U.S. Senate will try Pryor vote again."
Posted at 07:02 by Howard Bashman



"No one is trying to muzzle Moore": The Montgomery Advertiser today contains this editorial. And an editorial entitled "Moore's appeal: Thank goodness, Supreme Court said no" appears today in The Birmingham News.
Posted at 07:00 by Howard Bashman



"Ridgway plea won't bring end to Green River saga, police say": An article in today's issue of The Seattle Times begins, "In King County's largest courtroom this morning, Gary L. Ridgway, the 54-year-old truck painter from Auburn who lived most of his life a relative nobody, is expected to officially become the Green River serial killer."
Posted at 06:55 by Howard Bashman



"DNA evidence destroyed; pardons called possible": The Houston Chronicle today contains this report.
Posted at 06:54 by Howard Bashman



"Prosecutor faces assault, unlawful conduct charges; Allegations involve improper touching of women on city buses": Today's edition of The Seattle Post-Intelligencer reports here that "The Seattle City Attorney's Office has charged a federal prosecutor in an incident in which he allegedly rubbed his crotch against women on a bus."
Posted at 06:53 by Howard Bashman



In Wednesday's newspapers: In The Christian Science Monitor, Warren Richey reports that "Court weighs legality of roadblock searches; Wednesday's high court hearing focuses on an Illinois police checkpoint set up to solve a crime. But critics see it as an 'unreasonable' search." And you can access here an article headlined "Can you build a foolproof death penalty? While other states rethink capital punishment, Mass. Gov. Mitt Romney asks panel to explore its reinstatement."

The New York Times reports here that "Pataki Puts Nonjudge on Court of Appeals." A profile of the individual selected to serve on New York State's highest court is headlined "Robert S. Smith Is a Lawyer, Not Ideologue." In other news, "Prosecutors Ask Judge to Set Another Trial for Ex-Banker." An article reports that "Law Firms Sue Massachusetts for Tobacco Money." And an editorial is entitled "The Supreme Court and Sept. 11."

The Washington Post reports here that "Judges Hear Challenges to Microsoft Settlement; Denial of Appeal Would End Attempts To Tighten Sanctions." A front page article is headlined "Deported Terror Suspect Details Torture in Syria; Canadian's Case Called Typical of CIA." In somewhat related news, "Intelligence Guide Updated; FBI Standards Authorize Sharing Security Information." In business news, "Quattrone to Stand Trial a Second Time; U.S. Refiling Obstruction Case Against Investment Banker." In local news, "Lawyers Argue How Evidence Got to Jury." And an editorial is entitled "Drop This Case."
Posted at 06:30 by Howard Bashman



"White House Told To Justify Secrecy; High Court Issues Order in Terror Case": Charles Lane has this article in today's issue of The Washington Post.
Posted at 00:11 by Howard Bashman



Tuesday, November 04, 2003
Elsewhere in Tuesday's newspapers: In The Los Angeles Times, David G. Savage reports here that "Court Won't Hear Alabama Justice's Appeal Over Ten Commandments" and here that "Right to Sue Health Plans Weighed; The Supreme Court agrees to hear a pair of Texas cases to settle whether patients can take companies to court over the quality of care." In other news, "Lap Dancing Referendum Qualifies for City Ballot; Adult business owners gather needed signatures to force a vote on new rules passed by council." And an op-ed by Vince Beiser is entitled "Sentenced to Death by Doing Time; Prison overcrowding is pushing racial tensions among inmates to the breaking point, with lethal results."

In The Boston Globe, Lyle Denniston reports here that "Supreme Court rejects Commandments appeal" and here that "Justices take up patient rights cases; The ability to sue HMOs for damages is focus of debate."

USA Today reports here that "Ten Commandments move stands; Court refuses to hear judge's appeal" and here that "Drug case tests probable cause standard; Front-seat passenger charged after cocaine found in back seat." An editorial is entitled "Pious and atheists, take note." And DeWayne Wickham has an op-ed entitled "Nominee's views will affect court."

The Washington Times reports here that "High court declines Ten Commandments appeal." In news from Virginia Beach, "Muhammad didn't look up as agent questioned Malvo." A related article reports that "Man describes spotting suspects." In other news, "Family battles U.S. over road." An article reports that "FCC votes to fine AT&T for telemarketing violations." And Bruce Fein has an op-ed entitled "Hard case, solid judging."
Posted at 23:33 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Court Eyes Microsoft Settlement Terms"; here "Norton Testimony Sought in Tribal Case"; here "Electronic Voting Firm Sued Over Threats"; and here "Mass. Squares Off on Tobacco Attorneys."
Posted at 23:09 by Howard Bashman



Available online at law.com: You can access here an article headlined "Plea for Openness: National press group asks U.S. Supreme Court to unseal case files of Florida man imprisoned after Sept. 11 attacks." The article headlined "Lost in the Mix: Who Is Claude Allen?" is now freely available here. In news from Georgia, "Ford Rollover Suit Tests Punitives Ruling; Plaintiffs say company knew of design flaws." And in news from Pennsylvania, "Lawyers' Advice Can Shield Insurer From Bad-Faith Action; Reliance on attorney opinion means company did not ignore coverage duty."
Posted at 23:00 by Howard Bashman



The tentative agenda for this Thursday's executive business meeting of the Senate Judiciary Committee is available online: You can view the agenda here.
Posted at 22:46 by Howard Bashman



Lexington city councilman is no fan of mural depicting Fanny, the donkey mascot of the Big Ass Fan Co.: This report appears in today's issue of The Lexington Herald-Leader.
Posted at 22:40 by Howard Bashman



Tenth Circuit denies Leonard Peltier's request for immediate release from prison: Today's per curiam opinion issued by a unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit begins:
Leonard Peltier is housed at the United States Penitentiary in Leavenworth, Kansas. He is serving consecutive life sentences for the 1975 murders of two FBI agents. Pursuant to 28 U.S.C. sec. 2241, he filed a petition for habeas corpus, seeking immediate release on parole. The district court denied relief and we affirm.
You can access the complete decision at this link. And The Associated Press provides this report on today's ruling.
Posted at 22:00 by Howard Bashman



"Human Rights Expert Harold Koh Named Next Dean of Yale Law School": Yale Law School today issued this press release.
Posted at 21:10 by Howard Bashman



Tenth Circuit Judge Michael W. McConnell issues his first nude dancing opinion: You can access it here (40-page PDF document).
Posted at 21:05 by Howard Bashman



"Hearing Set in Legal Challenge to First-Ever Federal Abortion Ban; Oral Arguments in Nebraska Scheduled for Wednesday Morning -- Hours Before President Bush Signs the Unconstitutional Ban" The Center for Reproductive Rights has issued this press release.
Posted at 17:37 by Howard Bashman



"High Court Eyes Secret Immigrant Case": Gina Holland of The Associated Press reports here that "The Supreme Court on Tuesday asked the Bush administration to explain the secrecy surrounding the detention of one of the immigrants arrested after the Sept. 11 attacks." You can access some other relevant information here via my previous post about this case.
Posted at 17:34 by Howard Bashman



"The Future of the Ten Commandments War": You can access here a transcript of the interview Pat Robertson conducted today on the Christian Broadcasting Network of Jay Sekulow, Chief Counsel, American Center for Law and Justice.
Posted at 17:18 by Howard Bashman



"What's Conservative about the Pledge of Allegiance?" Gene Healy of the Cato Institute today offers these thoughts.
Posted at 17:09 by Howard Bashman



"If only we had a system where the chief executive nominates judicial appointees who then must be confirmed by the legislature": Today voters in the Commonwealth of Pennsylvania have the chance to vote in statewide judicial elections. See this report from The Associated Press. Yesterday's edition of The Morning Call of Allentown contained an op-ed by Lynn A. Marks and Shira J. Goodman entitled "Appointing judges is preferable to electing them." Given recent events in the U.S. Senate, I'm not sure everyone would agree. In any event, I still stand by the views expressed in my monthly appellate column published in September 2001 entitled "Pennsylvania Should Keep, But Reform, Its System Of Electing Appellate Judges."
Posted at 17:07 by Howard Bashman



"Lawyer Gets Rapped for Singing Bob Marley Tune": Reuters reports here from Montreal that "The lawyer for a man convicted of shooting and killing a policeman apologized on Monday for singing the Bob Marley hit 'I Shot The Sheriff' as he was leaving the courtroom." CBC Montreal reports here that "Boucher's lawyer may face ethics hearing." BBC News reports here that "Lawyer's Marley song brings discord." And UPI reports here that "Attorney is in trouble for singing."
Posted at 16:47 by Howard Bashman



"High Court Weighs Liability for Warrant": Anne Gearan of The Associated Press provides this report.
Posted at 16:37 by Howard Bashman



"High Court Dodges Big Cases": Slate's Dahlia Lithwick speaks (Real Player required to listen) on NPR's "Day to Day" program about yesterday's developments at the Supreme Court of the United States.
Posted at 16:30 by Howard Bashman



A tropical judicial mystery: Apropos my post from earlier this afternoon, a reader sends along a link to an article headlined "Why does U.S. 3rd Circuit Court, based in Philadelphia, hear cases from Virgin Islands?" that The Pittsburgh Post-Gazette published in December 2002.
Posted at 15:47 by Howard Bashman



"Pataki nominates Smith to state's highest court": The Associated Press provides this report from Albany, New York.
Posted at 15:42 by Howard Bashman



"Blinding Justices: Does the Constitution allow us to scrap the judiciary?" Slate has just posted online this essay by Rod Smolla.
Posted at 15:12 by Howard Bashman



"Christian Coalition Says Justice O'Connor Should Be Impeached for Recent Comments": That is the headline of an article available by subscription only via BNA's "Money and Politics Report" Web site. The article itself quotes the legislative director of the Christian Coalition as stating that the organization might seek first to impeach an unspecified Ninth Circuit judge before taking aim at a Justice serving on the U.S. Supreme Court. The article also quotes Georgetown Law Professor Roy Schotland as characterizing the comments about impeaching Justice O'Connor as "silly."
Posted at 15:00 by Howard Bashman



"Chief Justice Moore: Supreme Court was wrong on Ten Commandments." CNN.com offers this transcript of an interview that CNN conducted earlier today.
Posted at 14:20 by Howard Bashman



"Ark. Moves Toward Executing Drugged Man": The Associated Press reports here that "Arkansas' attorney general has determined that appeals have been exhausted for a death row inmate who is forcibly given anti-psychotic drugs that make him mentally competent to be executed, the governor's office said Tuesday."
Posted at 14:14 by Howard Bashman



A costly bottle of tequila: See the facts of this immigration-related case that the U.S. Court of Appeals for the Ninth Circuit decided today.
Posted at 14:11 by Howard Bashman



Divided three-judge Ninth Circuit panel rules in favor of the Beastie Boys, rejecting claim that music "sampling" was copyright infringement: Today's majority opinion begins:
This appeal raises the difficult and important issue of whether the incorporation of a short segment of a musical recording into a new musical recording, i.e., the practice of "sampling," requires a license to use both the performance and the composition of the original recording. The particular sample in this case consists of a six-second, three-note segment of a performance of one of his own compositions by plaintiff, and accomplished jazz flutist, James W. Newton. The defendants, the performers who did the sampling, are the members of the musical group Beastie Boys. They obtained a license to sample the sound recording of Newton's copyrighted performance, but they did not obtain a license to use Newton's underlying composition, which is also copyrighted.

The district court granted summary judgment to the defendants. In a scholarly opinion, it held that no license to the underlying composition was required because, as a matter of law, the notes in question -- C - D flat - C, over a held C note -- lacked sufficient originality to merit copyright protection. Newton v. Diamond, 204 F. Supp. 2d 1244, 1256 (C.D. Cal. 2002). The district court also held that even if the sampled segment of the composition were original, Beastie Boys' use was de minimis and therefore not actionable. Id. at 1259. We affirm on the ground that the use was de minimis.
You can access today's ruling at this link.

Update: Thanks to this blog's first ever "20 questions for the appellate judge" interviewee, I can't see the words "de minimis" without thinking about this post published at "How Appealing" in December 2002.
Posted at 13:55 by Howard Bashman



I'm back: Unlike in Pittsburgh last week, where my client's appeal ended up as the final case argued that day, this afternoon my client's case was first on the list. Because I was representing the party that won in the trial court, because the trial court's ruling was dictated by existing precedent, and because the three-judge panel did not appear to require much convincing, I didn't even need to use most of my allotted eight minutes. On the way out, I had the pleasure of saying hello to Alfred W. Putnam, Jr., who was there to argue a case a bit farther down on the list.
Posted at 13:35 by Howard Bashman



Back soon: I'm heading out to give the second of four appellate oral arguments that I expect to deliver before the end of this year. Today's argument is in Philadelphia before the Commonwealth Court of Pennsylvania. As an added bonus, my final oral argument this year is scheduled for an exotic location in the Caribbean.
Posted at 12:30 by Howard Bashman



The Atlanta Journal-Constitution is reporting: You can access here an article headlined "Kennesaw OKs 'God' resolution" and here an article headlined "Convicted murderer slated for execution Tuesday."
Posted at 12:10 by Howard Bashman



"Justices OK penalty for pot use by inmates": Today's edition of The Rocky Mountain News contains this report.
Posted at 11:34 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Voters Will Decide on Lap Dancing in L.A."; here "Teen Sniper Suspect's Mom Won't Testify"; here "Jury Hears About Items in Muhammad's Car"; and here "Peterson Defense Challenges DNA Analysis."
Posted at 10:35 by Howard Bashman



In news from Oregon: The Oregonian today reports that "Supreme Court hears lively cases on sex shows and free speech; Attorneys for strip clubs assert that performances are protected under Oregon's constitution as freedom of expression." And The Statesman Journal of Salem, Oregon reports here that "Balance sought between free expression, government" and offers here an article headlined "Lawyer: Photo radar law is flawed."
Posted at 09:55 by Howard Bashman



In news from Australia: The Sydney Morning Herald reports here in Wednesday's edition that "Westfield skirt code no joke, says woman stopped by guards." And The Courier-Mail of Queensland reports that "Skirt an arresting sight for shop security."
Posted at 09:50 by Howard Bashman



In today's issue of The San Francisco Chronicle: Bob Egelko reports here that "Top court lets Suzuki sue Consumer Reports; Automaker accuses magazine of rigging Samurai road test" and here that "Suit tests management of wilderness by BLM; Is government inaction actionable?"
Posted at 09:25 by Howard Bashman



"Microsoft Back in Court to Defend Antitrust Pact": Reuters provides this report on an oral argument scheduled to occur today in the U.S. Court of Appeals for the D.C. Circuit.
Posted at 06:50 by Howard Bashman



"Judge accepts bail for hunger-striking activist; Activist backers' property is bail": This article appears in today's issue of The Chicago Tribune.
Posted at 06:49 by Howard Bashman



In Tuesday's newspapers: In The Washington Post, Charles Lane reports here that "Court to Hear Insurance Case; Patients Seek Right to Sue When Companies Deny Coverage" and here that "Probable Cause At Issue in Case Of Md. Arrests." A front page article reports that "Jury Hears How Police Ambushed Sniper Suspects." In related news, "Some Galvanized, Some Traumatized by Violence." An article reports that "Tripp to Get Privacy Settlement; Defense Department Leaked Personal Information About Her." In business news, "AT&T May Face Fine for Telemarketing." And letters to the editor appear under the heading "Fairness for Asbestos Victims."

The New York Times reports here that "Inquiry Is Sought About Deletions in Report on Justice Department." In other news, "At Sniper Trial, an Introductory Phase Ends With Arrest." An article about the Everglades is headlined "On a Silent Landscape, an Environmental War Endures." In business news, "Telemarketing Fine Proposed for AT&T." And in local news, "Lawyers' Ads Seeking Clients in Ferry Crash."
Posted at 06:25 by Howard Bashman



In news and commentary from or about Alabama: The Birmingham News reports here that "Supreme Court will not hear Moore case" and here that "Moore's request for jury trial denied." The Mobile Register reports here that "Court rejects Moore's appeal; Legal options on Ten Commandments monument appear exhausted, but Alabama chief justice still faces fight for his job." The Montgomery Advertiser reports here that "Moore vows to continue fight." The Atlanta Journal-Constitution contains an article headlined "No Ten Commandments reprieve." An editorial in The Mobile Register is entitled "Universal justice isn't O'Connor's vocation." And an op-ed in that newspaper by Kelly McGinley is entitled "Uphold the Constitution, and not a judge's ruling."
Posted at 06:15 by Howard Bashman



"BYU counsel mentioned for D.C. court": The Salt Lake Tribune reports here today that "Thomas B. Griffith, Brigham Young University's chief attorney and formerly the U.S. Senate's lawyer for the impeachment trial of President Clinton, is reportedly being considered as a nominee to the U.S. Court of Appeals for the District of Columbia."
Posted at 06:05 by Howard Bashman



Monday, November 03, 2003
In Monday's newspapers: The Washington Times reports here that "GOP hopes for filibuster backlash." In other news, "Malvo said to be angry at 'father.'" An op-ed by Susanna Dokupil is entitled "Borking Janice Brown." An op-ed by Nat Hentoff is entitled "Deciding 'quality of life.'" And an op-ed by Richard E. Vatz is entitled "The case against Hinckley's plea."

The Los Angeles Times reports here that "Latinos with low SAT scores are admitted to the University of California at rates only slightly higher than whites and Asians, while blacks who score poorly are significantly less likely to get in, according to a Times analysis" In other news, "Lawyer Doesn't Know Gunman; Attorney shot outside court in Van Nuys had just been assigned to the case, his friend says." Michael Hiltzik's "Golden State" column is entitled "Plaintiffs Pay Stiff Price in Chevron Case." And an editorial is entitled "Let Matthew Shepard Rest."

USA Today contains a front page article headlined "On campus: Free speech for you but not for me? Conservative students say they're marginalized." An article reports that "Peterson will put on DNA expert; Hair could be 'the big red herring.'" And Law Professor Jonathan Turley has an op-ed entitled "Sniper case lacks appeal, public lessons of other cases."

The Washington Post contains a feature headlined "The Eyes That Look but Don't Reveal" about the DC-area sniper trial. The current installment of the "Washington Hearsay" column is headlined "Taking a New Team Into Court." And an editorial is entitled "Waiting at Guantanamo."

The Christian Science Monitor contains an article headlined "A better ballot? Electronic ballots, hailed as the antidote to hanging chads, will make a mark on Election Day. But critics warn of risks to democracy."

The New York Times contains an editorial entitled "Lawyers for Juveniles."

The Boston Globe's ombudsman (who is female, and thus might better be described as the ombudsperson or ombudswoman) has an essay entitled "Abortion's loaded language." And columnist Cathy Young has an op-ed entitled "Is the 'glass ceiling' a matter of choice?"
Posted at 23:02 by Howard Bashman



"Supreme Court to rule on lawsuits against HMOs": The Knight Ridder News Service offers this report.
Posted at 22:54 by Howard Bashman



"Justices say judges should decide on mental retardation": The Associated Press provides this coverage of a ruling that the Supreme Court of South Carolina issued today.
Posted at 22:52 by Howard Bashman



"Lost in the Mix: Who Is Claude Allen? While senators wrangled over turf, little time was spent on grilling the 4th Circuit nominee on his qualifications." This report (free registration required) appears in today's issue of Legal Times.
Posted at 22:47 by Howard Bashman



"Court to Review Suits on H.M.O. Policies": Linda Greenhouse will have this article in Tuesday's edition of The New York Times.
Posted at 22:45 by Howard Bashman



CNN.com is reporting: You can access here an article headlined "Malvo's mother says she is not allowed at trial" and here an article headlined "Government awards Tripp almost $600,000; Gives her outstanding performance evaluations."
Posted at 22:40 by Howard Bashman



Congratulations: To Gene E.K. Pratter, whom President Bush today nominated to a seat on the U.S. District Court for the Eastern District of Pennsylvania. Previously, Ms. Pratter had been mentioned as a potential nominee for the one vacancy on the U.S. Court of Appeals for the Third Circuit for which there currently is no nominee.
Posted at 21:55 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Supreme Court to Hear Illegal Voting Case"; here "Moore says he won't resign before judicial ethics trial"; here "Court hears arguments in Mississippi college desegregation appeal"; here "Indians to Appeal Redskins Team Ruling"; here "Bolton Criticizes EU Over Court"; here "Rudolph's Lawyer Seeks Delay in Alabama"; and here "U.S. Court Bars Expatriation Tax Scheme."
Posted at 21:51 by Howard Bashman



"Supreme Court Won't Hear Commandments Case": Nina Totenberg provides this audio report (Real Player required) on tonight's edition of NPR's "All Things Considered."
Posted at 18:55 by Howard Bashman



"Crackseat Driver: The Supreme Court takes on collective punishment." Slate's Dahlia Lithwick has this report on an oral argument that the U.S. Supreme Court heard today.
Posted at 18:53 by Howard Bashman



Cert. granted for Miguel A. Estrada: See the docket entries for case number 02-1845.
Posted at 17:24 by Howard Bashman



"Moore on trial; Chief justice sees court system from new perspective": The Birmingham News today contains this editorial.
Posted at 17:20 by Howard Bashman



"Chief justice espouses community activism": This article appears in today's edition of The Jefferson City News Tribune.
Posted at 17:17 by Howard Bashman



The Associated Press is reporting: Gina Holland reports here that "Supreme Court jumps into fight over wilderness study areas." And in news pertaining to the U.S. Court of Appeals for the Fifth Circuit, "Court to hear Mississippi college desegregation appeal."
Posted at 17:16 by Howard Bashman



The price of justice: Effective Saturday, November 1, 2003, the cost of filing a notice of appeal from a federal district court to a federal court of appeals increased from $105 to $255. See this notice and this notice.
Posted at 16:58 by Howard Bashman



"Driver talking on cell phone dies after crashing into Cingular Wireless store": This is sad. (Via "Obscure Store" and "Crescat Sententia.")
Posted at 16:50 by Howard Bashman



Two Hands are better than one: Several readers have emailed today, in connection with my posting of the "20 questions for the appellate judge" interview with Senior Eighth Circuit Judge Richard S. Arnold, to challenge the accuracy of my assertion in question 2 that "As far as I am aware, you and your brother are the only brothers to have ever served together on a federal appellate court." These emails ask whether I have overlooked Second Circuit Judges Augustus N. Hand and Learned Hand.

I have not overlooked the Hands, because they were first cousins. No emails have asked if I have overlooked the "Hands of the Eighth Circuit," cousins Walter Henry Sanborn and John B. Sanborn. Perhaps this is because Walter died before John joined the court of appeals. This history of the Eighth Circuit provides some more details.
Posted at 15:13 by Howard Bashman



Today's official U.S. Supreme Court Order List is now available online: Here. The Court today granted review in a total of four cases, two of which have been consolidated for purposes of oral argument.
Posted at 14:12 by Howard Bashman



"Justices to Weigh Right to Sue HMOs; The Supreme Court also allows a lawsuit against Consumer Reports over safety tests of the Suzuki Samurai to proceed and rejects an appeal in Alabamba's Ten Commandments case." The Los Angeles Times provides this news update.
Posted at 14:07 by Howard Bashman



"Geography, not ideology, focus of fight over judge; Maryland's senators are arguing that a vacant seat on the federal bench should go to Marylander, not a Virginian." This article appeared in yesterday's issue of The Baltimore Sun.
Posted at 13:57 by Howard Bashman



"Court may weaken harassment law; Employers want protection if victim doesn't complain promptly": Today's edition of The San Francisco Chronicle contains this report.
Posted at 13:30 by Howard Bashman



"Court Reinstates Ohio Death Sentence": The Associated Press provides this report concerning today's per curiam summary reversal by the Supreme Court of the United States of a decision that the U.S. Court of Appeals for the Sixth Circuit issued in a habeas corpus case that originated in the Ohio court system.
Posted at 13:29 by Howard Bashman



Today's U.S. Supreme Court Order List: Anne Gearan of The Associated Press reports here that "Court Won't Enter Ten Commandments Fight" and here that "Supreme Court to Rule on Patients' Rights." And Gina Holland reports here that "Supreme Court Won't Block Magazine Suit."

Reuters reports here that "US top court allows Suzuki to sue Consumer Reports"; here that "Justices Reject Judge's Ten Commandments Appeal"; here that "US top court to decide if HMOs can be sued"; and here that "Top Court Rejects Dow Chemical Asbestos Appeal."
Posted at 10:04 by Howard Bashman



On the agenda: The Supreme Court of the United States is back in session today and is expected to issue an Order List this morning. You can access here Tony Mauro's preview of cases in which review is most likely to be granted (including Consumers Union v. Suzuki Motor Corp., No. 03-281).

And, in case you missed it, at midnight this morning I posted online the November 2003 installment of "20 questions for the appellate judge." This month's interviewee is Senior Eighth Circuit Judge Richard S. Arnold, and you can access his interview by clicking here or by scrolling down this page a bit.
Posted at 09:30 by Howard Bashman



"Bake sale broaches admission standards; Affirmative action event shut down; probes to see if groups violated policies": The Daily Northwestern provides this report today. And in news from Yale, The Yale Daily News reports here that "Guinier Law '74 addresses diversity in higher education."
Posted at 09:24 by Howard Bashman



This morning's Ten Commandments news: The Pensacola News Journal today reports here that "Moore packs church; Commandments battle inspires cheering crowd" and offers excerpts of an interview under the headline "Moore: Case not about Ten Commandments." In somewhat related news, The Montgomery Advertiser reports here that "Rep. Alvin Holmes, D- Montgomery, wrote to national party leaders on both sides of the congressional aisle last week to defend U.S. District Judge Myron Thompson of Montgomery." Finally, The Associated Press reports here from Georgia that "Suspended Alabama chief justice Moore to speak in Winder Thursday."
Posted at 09:20 by Howard Bashman



"Speaking of shameful …": Last Thursday, columnist Linda Campbell of The Fort Worth Star-Telegram published an essay that begins, "Just three sentences into a Senate Judiciary Committee hearing on the federal appeals court nomination of Janice Rogers Brown, Chairman Orrin Hatch already was whining that an earlier nominee, Miguel Estrada, 'was treated shamefully by this committee.'"
Posted at 09:16 by Howard Bashman



"A Constitution of Convenience: The government can't have it both ways." Andrew P. Napolitano today has this essay online at Reason.
Posted at 09:00 by Howard Bashman



"Malvo's case stirs debate on death penalty; Each side says evidence bolsters its argument on execution of juvenile killers." Today's issue of The Baltimore Sun contains this article.
Posted at 08:40 by Howard Bashman



"Judge Brown and the new racism": Armstrong Williams has this essay online today at Town Hall.
Posted at 08:30 by Howard Bashman



"File Sharing Pits Copyright Against Free Speech": The New York Times today contains an article that begins, "Forbidden files are circulating on the Internet and threats of lawsuits are in the air. Music trading? No, it is the growing controversy over one company's electronic voting systems, and the issues being raised, some legal scholars say, are as fundamental as the sanctity of elections and the right to free speech."
Posted at 00:18 by Howard Bashman



20 Questions for Senior Circuit Judge Richard S. Arnold of the U.S. Court of Appeals for the Eighth Circuit: "How Appealing" is delighted that Senior Circuit Judge Richard S. Arnold of the U.S. Court of Appeals for the Eighth Circuit has agreed to participate in this Web log's recurring monthly feature, "20 Questions for the Appellate Judge."

Judge Arnold was born in Texarkana, Texas in 1936 and was raised in Arkansas. He attended undergraduate school at Yale and law school at Harvard, graduating first in his class from both schools. After law school, he clerked for Associate Justice William J. Brennan, Jr. of the Supreme Court of the United States. After that clerkship, Arnold practiced law for several years at Covington and Burling in Washington D.C. and then returned to Texarkana to practice at Arnold and Arnold. In 1973, he joined the staff of Arkansas Governor Dale Bumpers and continued working for U.S. Senator Dale Bumpers in 1975.

In 1978, President Jimmy Carter nominated Arnold to fill a vacancy on the U.S. District Court for the Eastern and Western Districts of Arkansas. In late 1979, President Carter nominated Judge Arnold to fill a newly-created seat on the U.S. Court of Appeals for the Eighth Circuit. The U.S. Senate confirmed Judge Arnold in February 1980. From 1992 through 1998, he served as the Eighth Circuit's Chief Judge. He took senior status in April 2001.

Judge Arnold has his chambers in Little Rock, Arkansas, and the Eighth Circuit has its headquarters in St. Louis, Missouri.

Questions appear below in italics, and Judge Arnold's responses follow in plain text.

1. Both you and your younger brother, Morris Sheppard Arnold, serve as judges on the U.S. Court of Appeals for the Eighth Circuit, and both of you first served as U.S. District Judges. Your brother, however, was nominated to the district court by President Ronald W. Reagan and to the Eighth Circuit by President George H.W. Bush, while President Carter was responsible for your nominations. What was it about the household in which you and your brother were raised that produced two federal appellate judges, one from each major political party? Also, please explain your family's connection to Morris Sheppard, who from 1913 to 1941 served as a U.S. Senator from Texas.

I don't know that the household or family can be blamed for my brother's and my having once belonged to different political parties. I think it is more the result of free choice that we made after becoming adults.

Thank you for asking about my grandfather, Morris Sheppard. At the time of his death, in 1941, he was Dean of the Congress and Chairman of the Senate Committee on Military Affairs. His oldest daughter, Janet, was my mother. I am very proud of his record of public service. I would like to add that my cousin, Connie Mack, the son of my mother's sister, served two terms in the Senate.

2. In 1998, the U.S. Congress amended the statute codified at 28 U.S.C. sec. 458 to prohibit the appointment to any U.S. District Court or U.S. Court of Appeals any person "who is related by affinity or consanguinity within the degree of first cousin to any judge who is a member of the same court." As far as I am aware, you and your brother are the only brothers to have ever served together on a federal appellate court. As a matter of policy, do you support or disagree with the prohibition contained in Section 458?

I think I should not comment on whether I approve or disapprove, as a matter of policy, of a statute. I will say that when my brother was nominated for the Court of Appeals, no objection whatever was raised, at least to my knowledge, on the basis of our relationship. The statute was enacted in the aftermath of the confirmation of Willie Fletcher to be a United States Circuit Judge for the Ninth Circuit. Judge Fletcher's mother, Betty, is also a member of that Court.

3. What are your most favorite and least favorite aspects of being a federal appellate judge?

The aspect of the job I like most is that all I have to do is do right. Every day when I come to work and pick up a file, that is my only job. Let right be done.

My least favorite aspect of the job is the volume. It often does not leave one with enough time to think about cases properly. I am grateful that the problem is less acute now that I have taken senior status.

4. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

Mr. Justice Brennan. Not only did he give me a job, he gave me an example of a unique combination of intellect and compassion. He was a superb judge. He started as my boss, and ended as a loving friend.

5. The confirmation process that nominees for U.S. Court of Appeals vacancies must undergo is quite a bit more politicized today than it was when you experienced it in 1980. Does the current tenor of the confirmation process cause you any concern as a sitting federal appellate judge, and what if anything realistically can be done to improve the nomination and confirmation process?

Yes, the current tenor of the confirmation process does cause me concern. I think it is much too highly politicized, on both sides. People who are qualified and ought to be confirmed are being rejected, or simply not voted on, for what seem to me to be insufficient reasons. I don't know what can be done realistically to improve the process. As a practical matter, it helps for the President and the Senate to be of the same party, but there will necessarily be times, like the present, when that isn't true.

6. How do you define the term "judicial activism," is it ever proper for a federal appellate judge to consider his or her personal preference as to the outcome of a case (other than the preference to decide the case correctly in accordance with the law) in deciding how to rule, and do you believe there is any way that the U.S. Senate can determine in the confirmation process whether a nominee is likely to engage in judicial activism if confirmed to the bench?

Personal preferences should be laid aside, and mostly, I believe, they can be. All judges are human, and we can't achieve perfection, but we should strive to follow the law according to neutral principles (and I believe they exist). A judicial activist is someone who writes his own preferences into the result of cases without thinking about much else.

7. In 1994, you were widely reported to be a finalist to fill the vacancy created on the Supreme Court of the United States when Harry A. Blackmun announced his intention to retire. Why, to the best of your understanding, did President Clinton not pick you, and in retrospect are you pleased, disappointed, or some combination of the two about not having had the opportunity to serve as a Justice on the Court on which you once clerked?

I will tell you what the President told me, and I believe it is accurate. I have had a form of lymphoma since 1975. From time to time, it needs to be treated, though it does not usually interfere with judicial functioning. The problem was doubts about longevity. No physician acceptable to the White House was willing to give sufficient assurances on that score. I also had some political opposition, but I believe that health was the dispositive factor.

I would like to add two things. First, I have no complaints about how the President treated me. He was very considerate of me, and he has been a good friend to me. Second, I said at the time that Chief Judge (as he then was) Breyer would be a wonderful justice, and events have proved me right.

As to whether I was disappointed, I think you know the answer.

8. Tony Mauro, who once covered the U.S. Supreme Court for USA Today and who now covers the Court for The American Lawyer, wrote in 1994 that the only reason President Clinton did not nominate you to replace Justice Blackmun was that physicians were unable to assure the White House that you would be able to serve on the Court for at least fifteen years given your medical history of cancer. The article went on to note that under the Americans with Disabilities Act, covered businesses would have been prohibited from refusing to hire someone on that basis. Is it correct to say that the reason you were not nominated to the U.S. Supreme Court was because of concerns about how long you could serve on the Court, and if indeed that were the reason, would you consider yourself to have been a victim of discrimination?

I don't know about 15 years, but Mr. Mauro's statement is otherwise accurate, to my knowledge. I don't feel discriminated against, however. In the first place, as a matter of law, the Americans with Disabilities Act applies only to employment, not to appointment to federal office. In the second place, an expectation of longevity has been, for a long time, a practical political consideration in appointing judges, especially justices of the Supreme Court. The factor has received more weight, in my opinion, than it deserves, but it is an aspect of political life.

9. Seventh Circuit Judge Richard A. Posner has described his own judicial philosophy as "pragmatic." How would you describe your judicial philosophy, and what types of cases have you found the most difficult to decide?

I doubt that I am a pragmatist in the sense that Dick Posner uses the word. (Incidentally, I admire him greatly. He is a true legal genius.) I regard myself as more of a "constitutionalist" or "legalist." In this regard, Justice Black is a model of mine. The job of judges, in most cases, is to ascertain and apply the will of other people, for example, the Framers of the Constitution or of a statute. In the case of the Constitution, of course, it's hardly ever possible to determine with certainty what the Framers intended about a particular question. So we lower-court judges are occupied mainly with applying precedent and, in default thereof, such scraps of history and tradition as we can lay our hands on.

10. What is your view on whether the Ninth Circuit -- which now is authorized to have twenty-eight active judges and might soon be expanded to thirty-five active judges -- should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best?

I have many friends on the Ninth Circuit, most of whom are opposed to splitting it, so I hate to answer the question. The question is for Congress. I prefer not to express a view.

11. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates you wish were applying but haven't been? Also, how if at all did the new "Law Clerk Hiring Plan" change for better or worse your experience in hiring law clerks who will be reporting to work in the fall of 2004?

The best quality to have in a law clerk is good writing ability, and it's impossible to determine in advance whether a person has that. I don't know of any sorts of candidates that I wish were applying but haven't been. The new hiring plan, to which I am voluntarily adhering, changes the process simply by moving it forward one year, which is a good thing. I was not hired as a law clerk until December of my third year of law school, with the job to begin in July. I don't see why judges should be in a big hurry to hire law clerks.

12. Let me begin by disclosing that I am an enthusiastic supporter of the view that federal appellate courts should not be able to issue decisions identified as "non-precedential." You are perceived, rightly or wrongly, as at the forefront of that cause, having raised the subject as an addenda in 1998 to your letter to the Commission on Structural Alternatives for the Federal Courts of Appeals, in your 1999 law review article titled "Unpublished Opinions: A Comment," and in your decision for a three-judge panel of the Eighth Circuit in 2000 in Anastasoff v. United States holding that the Eighth Circuit acted unconstitutionally in adopting a local rule providing that unpublished Eighth Circuit opinions were non-precedential. Of course, the Eighth Circuit granted rehearing en banc in Anastasoff and dismissed the case as moot because the federal government, in the interim, had changed its position and decided that Ms. Anastasoff was in fact entitled to receive the tax refund she was seeking in her lawsuit. The en banc opinion also vacated your panel opinion. As a result, the Eighth Circuit local rule that your panel opinion condemned as unconstitutional remains in effect today. On the other hand, in 2002 the U.S. Court of Appeals for the D.C. Circuit abolished prospectively the concept of non-precedential rulings, the Federal Rules of Appellate Procedure are on the verge of being amended to allow appellate briefs to cite unpublished and non-precedential decisions, and Congress recently passed a law that will soon require the federal appellate courts to post all unpublished opinions online as they are issued. How satisfied are you with the current state of affairs concerning non-precedential rulings by federal appellate courts?

I wrote the opinion dismissing the Anastasoff case as moot. Whether rehearing en banc would have been granted had the only issue before the Court been the merits, I just don't know, nor do I think it would be appropriate to speculate on the subject. As to the current state of affairs, I believe it is moving in the right direction. The most vulnerable part of current practice, in some circuits, is the rule against citation. This rule and attempts to enforce it are doomed to fail. Entirely apart from any legal difficulties or theoretical problems, it is just not possible to put that much of a restraint on the availability of information.

13. Knowing what you know today, are foes of non-precedential federal appellate court opinions better advised to focus their efforts on achieving changes through the rulemaking process (keeping in mind that it was the rulemaking process that gave birth to non-precedential opinions) or on achieving changes through the adjudicatory process?

I don't know the answer to this question. Experience up to now indicates that the rulemaking process may be the best avenue. A lot of people who agree with me that there should be no such thing as a non-precedential opinion don't agree with my Article III approach. Incidentally, there is also a good equal-protection argument to be made, but I didn't feel it necessary to reach it.

14. Had the Anastasoff case not become moot before the en banc Eighth Circuit could reach the merits, was it your prediction that the en banc court would have agreed with you the local rule declaring unpublished opinions non-precedential should be abolished, and why has the Eighth Circuit not repealed, via the rulemaking process, the rule your panel opinion condemned as unconstitutional?

I don't have a prediction on this subject. As to why the Eighth Circuit has not repealed its rule, the answer is that a majority of the Court does not want to. I will add, however, that we have never sanctioned a lawyer for citing an unpublished opinion, or even threatened to.

15. Even some who are sympathetic to your view that non-precedential federal appellate opinions should not exist believe that Ninth Circuit Judge Alex Kozinski demolished the foundation of your panel opinion in Anastasoff in his decision in 2001 for a unanimous three-judge Ninth Circuit panel in Hart v. Massanari. Did Judge Kozinski’s opinion in Hart demonstrate to you that you had either reached the wrong decision in your panel opinion in Anastasoff or had reached the right decision but for the wrong reasons, and where if at all did Judge Kozinski err in his opinion in Hart?

No, I not convinced by Hart. The opinion, which is a fine job of scholarship, proves, if it proves anything, that the concept of precedent was somewhat fluid in the 18th Century. That is not the point. The question is whether certain kinds of opinions, in this case, opinions that a court does not send to certain legal publishers, can be declared a priori to be without precedential value. Such an idea would have been entirely foreign to the 18th-Century legal mind.

16. Tony Mauro, in an article published in May 2003, paraphrases you as saying that the proposed rule allowing citation to unpublished and non-precedential federal appellate opinions "would lead almost inevitably to giving unpublished opinions substantial weight as precedents." He also quotes you directly as saying that you "hope the slope is very steep and very slippery" toward the widespread use of unpublished opinions and that "I don't know what judges are afraid of." What in your view is the best argument those in favor of retaining non-precedential federal appellate opinions have to offer, which side in this battle do you expect to emerge victorious, and when and how do you expect the battle to be resolved?

There isn't any good argument. It's my opinion that judges who believe that unpublished opinions should be without precedential value are driven to that conclusion by the sheer volume of work. I don't know how the battle will be resolved, but ultimately I hope and believe that the idea of non-precedential opinions of any kind will be consigned to the dust bin.

17. Is the salary now paid to federal appellate judges too low? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

Yes, I confess to a bias on this subject, and not just the bias that all judges hold. I am now serving as Vice Chairman of the Committee on the Judicial Branch of the Judicial Conference of the United States. One of the main jobs of the Committee is to advocate a pay raise, in accordance with Judicial Conference policy. We are supporting proposals in Congress to raise the salary of all judges by about $25,000. The President has endorsed this proposal. As to how to determine what the proper salary would be, it should be said that we are not asking for what partners in big-city law firms make. A point of comparability might be the salaries of law-school deans or chaired professors. As Justice Breyer has pointed out in a masterful presentation, the average law-school dean at a top law school makes about $300,000.

18. What is the best advice you ever received on being an effective federal appellate judge, and from whom did you receive it?

Most of the work we do is hidden. The opinions are only the tip of the iceberg. Perhaps the best advice I ever received came from one of my colleagues, Judge Gerald Heaney. He said that the best opinion is one you sit down and write immediately after the argument.

19. What are the most significant ways that attorneys practicing before the U.S. Courts of Appeals could improve their appellate briefs and their appellate oral arguments?

Many briefs are ungrammatical and poorly proofread. These are elementary respects in which briefs could be improved. Also, the statement of facts is the most important part of the brief, because it is the part of the case about which the judges know least. It should receive more emphasis.

Oral arguments should get to the point. The time is short. Don't be irritated with judges who ask questions. You may hear something that is the key to your case.

20. What do you do for enjoyment and/or relaxation in your spare time?

Pray and play golf.
Posted at 00:00 by Howard Bashman



Sunday, November 02, 2003
"Questions From the Bench Seen as Clues to Final Outcomes": Charles Lane will have this article in Monday's issue of The Washington Post.
Posted at 23:01 by Howard Bashman



"Justices Face Decision on Accepting 9/11 Cases": Linda Greenhouse will have this article in Monday's edition of The New York Times.
Posted at 23:00 by Howard Bashman



"Supreme Court will decide crime-search law": The Knight Ridder News Service provides this report.
Posted at 22:13 by Howard Bashman



Coming soon: Shortly after midnight, I will be posting online here the November 2003 installment of "20 questions for the appellate judge." This month's interviewee is Senior Eighth Circuit Judge Richard S. Arnold.
Posted at 20:52 by Howard Bashman



"Sound recognition: In 1967, an inventor introduced an audio technology that is heard every day: surround sound. So why is he broke, and until recently, all but forgotten?" The St. Petersburg Times today contains this article.
Posted at 20:49 by Howard Bashman



"Cheyenne mulls Ten Commandments monument options": The AP provides this report from Wyoming.
Posted at 19:49 by Howard Bashman



"Nevada on front line of church-state battle": This article appears in today's edition of The Reno Gazette-Journal. In related news, The Associated Press reports here that "ACLU won't challenge Sparks mayor's 'God Bless America' signs."
Posted at 19:45 by Howard Bashman



"Drugs in the car, and no one owns up. Is everyone liable?" Warren Richey will have this article in Monday's issue of The Christian Science Monitor.
Posted at 19:04 by Howard Bashman



"Trial Set to Begin for Plague Researcher": The Associated Press provides this report from Texas.
Posted at 17:40 by Howard Bashman



Elsewhere in Sunday's newspapers: The Boston Globe reports here that "US in talks to transfer detainees; Some in Cuba reportedly may be sent home." In related news, "Detainees' identities emerge from Cuba." And in other related coverage, "Japanese internees see modern parallels." An article reports that "Lawyers dealt blow over fees; Firms seeking $1.3b in state tobacco deal." And in other news, "Effort at compromise gay-rights bill stirs mixed feelings."

The Los Angeles Times reports here that "Lawyers Pile on Evidence in Sniper Trial; Prosecutors have called 75 witnesses in an effort to make a compelling circumstantial case against John Allen Muhammad." In other news, "Arson Cases Tough to Prove, Even Tougher to Prosecute; With witnesses and forensic evidence hard to come by, investigators face a daunting task. Many such crimes are never solved." In news from Rome, "Furor Over Cross Reflects Italy's Changing Reality; The debate that arose from a judge's order to remove the Christian symbol from a school has turned attention to the nation's identity." A report from The Associated Press is headlined "He's Out of Prison, but He Isn't Exactly Free; Illinois' governor pardoned convicted murderer Aaron Patterson, calling him a victim of 'manifest injustice.' But Patterson refuses to forgive." An article reports that "Activists See Loss of Civil Liberties; Amnesty International members say the war on terrorism has taken a toll on human rights." In other news, "Hero Finds Himself in Spotlight." An article in the Magazine section is headlined "Ballot Busters: The Archaic Mechanism Used to Elect U.S. Presidents Is Under Assault by People Who Meet on the Internet and Pledge to Swap Votes in Next Year's Election." An obituary is headlined "John Hart Ely, 64; Constitutional Law Scholar and Author Was Often Cited by Legal Experts." Robert L. Harris has an op-ed entitled "Bush's Court-Nominee 'Diversity' Is a Cynical Ploy; These minority members and women are out of the mainstream," while William S. Mount has an op-ed entitled "Judicial Independence Counts; Justice Brown looks to the law, not to some black 'standard.'" And letters to the editor appear under the headings "Who Should Judge Others' Quality of Life?" and "Court Travel Is Well Worth the Money."
Posted at 17:09 by Howard Bashman



The Statesman Journal of Salem, Oregon is reporting: You can access here an article headlined "Limits of free expression in strip clubs debated; The state Supreme Court will hear two cases involving adult-entertainment businesses" and here an article headlined "State justices to hear appeal on photo radar; Two courts have rejected the claims of a Portland woman."
Posted at 14:45 by Howard Bashman



"Hentoff: Bush MIA on Judicial Appointments." This item appears online today at NewsMax.com.
Posted at 14:35 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Sniper Trial Highlights Close Encounters"; here "Brownback leads next big push against abortion"; here "Green River Killer Would Be Most Prolific"; here "Minn. Judge to Perform 5,000th Wedding"; and here "L.A. Lawyer Recovering After Shooting."
Posted at 14:30 by Howard Bashman



In Sunday's newspapers: The New York Times reports here that "States Seek Ways to Make Executions Error Free." An article reports that "Schiavo Case Brings Unwelcomed Spotlight." An editorial is entitled "Treating Mental Illness in Prison." And a letter to the editor appears under the heading "Our Bodies, Our Choice."

The Washington Post reports here that "Sniper Trial Stretches Rules For Admissible Evidence." In other news, "Muslim Troops' Loyalty a Delicate Question; Military's Religious Tolerance May Have Aided Infiltrators, Led to Complacency." The cover story of The Washington Post Magazine is headlined "I See Naked People: Megastars baring all, 'Girls Gone Wild,' nudists next door. Where is America's fascination with nudity taking us?" An editorial is entitled "An Important Probe." And Alice Vachss has an op-ed entitled "The Charge of Rape, the Force of Myth."
Posted at 12:10 by Howard Bashman



"Biocyberethics: should we stop a company from unplugging an intelligent computer?" The Web site KurzweilAI.net offers this interesting, although as of yet fictional, account.
Posted at 11:45 by Howard Bashman



"How Terri's Law came to pass: The bill, voted on and signed in less than 24 hours, brought praise and scorn not seen since the 2000 election." Today's edition of The St. Petersburg Times contains this report.
Posted at 11:38 by Howard Bashman



"Trouble in Perryville: Village banished their problem resident, but state officials say they had no right." This article appears today in The Anchorage Daily News.
Posted at 11:35 by Howard Bashman



In today's issue of The Philadelphia Inquirer: You can access here an article headlined "Issue of taped testimony from children resurfaces; A 1995 Pa. amendment was struck down by the state Supreme Court; Another vote will take place on Tuesday" and here an article headlined "Law ensures there's room for religion; In Pa., students can be released for lessons off school grounds."
Posted at 11:33 by Howard Bashman



"Court to eye 'two-step' Miranda warning dance": This article appears in today's edition of The San Antonio Express-News.
Posted at 08:58 by Howard Bashman



"ACLU sees a year of controversial positions ahead": Today's issue of The Barre-Montpelier Times Argus contains this report.
Posted at 08:54 by Howard Bashman



"U.S. Courts Rule Patients Have Right to Sue HMOs; Two appeals verdicts go against interpretation of a 1973 law that has shielded health-care groups from damages." David G. Savage has this article in today's issue of The Los Angeles Times.
Posted at 08:48 by Howard Bashman



"Cheating prosecutors ruin lives, go unpunished": Today's edition of The Raleigh News and Observer contains a two-part report headlined "Cheating prosecutors ruin lives, go unpunished: Law opens files for those on Death Row, but other inmates are in the dark when the state keeps vital evidence secret." You can access part one here and part two here. And in related news, "DA turned blind eye to evidence snitch lied; Man died before wrong was righted."
Posted at 08:45 by Howard Bashman



"State pins oyster suit hopes on high court; Some think justices will strike judgment": This article appears in today's issue of The Times-Picayune.
Posted at 08:38 by Howard Bashman



"Justice sets standard for strength; Judge's breast cancer not something to hide": The Tallahassee Democrat today contains an article that begins, "A blindfolded woman, holding a set of scales, is the traditional image of justice. The latest face is that of a woman with no hair - and a dynamic smile."
Posted at 08:35 by Howard Bashman



"If Moore appeals, who will hear the case?" The Associated Press provides this report from Alabama. And The Pensacola News Journal reports here that "'Commandments Judge' to speak at church today."
Posted at 08:32 by Howard Bashman



"Opinions, speeches may be two sides of Justice Brown": Claire Cooper, legal affairs writer for The Sacramento Bee, had this report yesterday.
Posted at 08:28 by Howard Bashman



Saturday, November 01, 2003
Cert. petition in "secret case" now available online in redacted form: You can access the petition for writ of certiorari pending before the Supreme Court of the United States in M.K.B. v. Warden, No. 03-6747, at this link (51-page PDF document), via FindLaw. This past Thursday, "SCOTUSblog" offered some background and additional links regarding the case. And the lone non-redacted attachment to the cert. petition (a printed copy of this article from The Miami Daily Business Review, a law.com affiliate) reveals the petitioner's full name and plenty of details about the procedural history of the case.
Posted at 23:50 by Howard Bashman



Elsewhere in Saturday's newspapers: The Los Angeles Times contains a front page article headlined "Detained, Without Details: As the Supreme Court considers whether to hear Guantanamo Bay prisoner petitions, both sides cite a case from the Red Scare of the 1950s." An article reports that "Attorney Is Shot as TV Cameras Roll; The gunman, apparently enraged over a probate case, is videotaped firing at opposing counsel outside the Van Nuys courthouse. The shooter is tackled by a Traffic Court judge." In other news, "1 Charge Against Blake Dropped; Judge's dismissal of conspiracy count still leaves the actor facing a murder trial. The case against his handyman is thrown out." In news from Colorado, "Order Doesn't Prohibit Use of Accuser's Name." An article reports that "UC Regents Chief Again Criticizes Berkeley's Admissions Practices." And in letters to the editor, "UC Admissions Policies" and "Tyranny by the Majority."

In The Boston Globe, Lyle Denniston reports that "Ban on abortion method challenged; Rights advocates sue to prevent bill from becoming law." In other news, "Legislators negotiating gay rights compromise." And you can access here an item headlined "In law and faith, truth full of complexities."

The Washington Times reports here that "ACLU, pro-choice groups sue over abortion bill." In other news, "Justice commits to fixing 'significant diversity issues.'" And an article reports that "Sniper extortion bid detailed."
Posted at 23:33 by Howard Bashman



In today's issue of The St. Petersburg Times: You can access here an article headlined "At what point is it no longer self-defense? Two incidents in Tampa raise questions about how far victims of crime can go." And in other news, "DirecTV turns to state courts for piracy suits; The company says it's trying to spread the load; defense lawyers disagree."
Posted at 23:05 by Howard Bashman



"Panel rejects McRae suspension": Today's edition of The Clarion-Ledger reports here that "The state Commission on Judicial Performance said Friday there's plenty of disruption at the state Supreme Court but the blame belongs to more than Justice Chuck McRae."
Posted at 20:28 by Howard Bashman



"Saving Seeds Subjects Farmers to Suits Over Patent": Adam Liptak will have this article in Sunday's edition of The New York Times.
Posted at 20:25 by Howard Bashman



"Most oppose tax ruling; Unfavorable view of high court's decision doesn't translate into support for recall": Today's edition of The Las Vegas Review-Journal reports here that "Two of three Nevadans remain unhappy with the state Supreme Court's July decision to allow the Legislature to raise taxes with a simple majority vote, according to a new poll. But the public's animosity over the decision has not translated into support for a recall of Chief Justice Deborah Agosti, who authored the majority opinion, or Gov. Kenny Guinn, whose lawsuit against the Legislature led to the high court's decision."
Posted at 20:24 by Howard Bashman



Today's Ten Commandments-related news: From Alabama, The Birmingham News reports here that "Petition launched to impeach U.S. judge." The Montgomery Advertiser reports here that "Moore supporters petition for removal."

From Georgia, The Athens Banner-Herald reports here that "Barrow puts faith in Virginia lawyer; Ten Commandments standoff."

And The Associated Press reports here from Wyoming that "Minister, rights groups blast plaza plan"; here from St. Paul that "Minnesotans rally for Ten Commandments"; and here from North Dakota that "Fargo man wants to remove goddess statue." That final article makes me wonder what's up with the "pagan panther"?
Posted at 16:50 by Howard Bashman



"Some law firms give money to both Supreme Court candidates": The Associated Press provides this report from Pennsylvania.
Posted at 16:48 by Howard Bashman



"Friends laud Judge Cox during portrait ceremony; Members of appellate court honor longtime Mobile jurist": This article reporting on the portrait presentation ceremony for Senior Eleventh Circuit Judge Emmett Ripley Cox appeared in yesterday's issue of The Mobile Register. (Via "Southern Appeal.")
Posted at 16:41 by Howard Bashman



Current and future vacancies in the federal judiciary: The Administrative Office of the United States Courts yesterday updated its charts of current and future vacancies in the federal judiciary.
Posted at 16:37 by Howard Bashman



In Saturday's newspapers: The New York Times reports here that "3 Suits Filed to Block an Abortion Bill That Bush Intends to Sign." In other news, "Sniper Jury Shown Evidence of a Motive for Shootings." An article reports that "Court Approves WorldCom Plan." In news from Utah, "Case Begins Against Olympic Bid Leaders." In local news, "Juror Denies Comments in the Trial of a Mother." An editorial is entitled "Unconstitutional Farm Checkoffs." An op-ed by Sally Satel is entitled "Out of the Asylum, Into the Cell." And letters to the editor appear under the headings "Judicial Nominees" and "The Value of Fetuses."

The Washington Post reports here that "Moussaoui Liable for Death Penalty, U.S. Argues." In business news, "Microsoft Hearing Could Conclude the Case; Appeals Judges to Consider Challenges to Antitrust Accord." In news from Virginia, you can access here an article headlined "Note Seeking Money Is Read to Sniper Jury" and here an article headlined "Judge Will Permit Malvo Jury to See Graphic Photos of Victim's Body." In other news, "Inquiry In Case Of Arms Dealer; Justice to Probe Conduct of Prosecution." An article reports that "Frozen Assets Going to Legal Bills; U.S. Has Linked Confiscated Funds To Financing Terror." And in business news, "Judge Clears WorldCom's Exit From Bankruptcy; Telecom Firm to Resume Business Under MCI Name."
Posted at 10:29 by Howard Bashman



"Supreme Court to Consider Search Warrants": The Associated Press provides this report.
Posted at 10:23 by Howard Bashman



"For Schumer, His Method and Success Draw Fire": Today's edition of The New York Times contains an article that begins, "When Charles E. Schumer recommended using an extreme tactic -- the filibuster -- to block some Bush administration nominees for federal judgeships, he put himself in the cross hairs of the president's Republican and conservative allies."
Posted at 09:29 by Howard Bashman



"Republicans Investigate Judge in Michigan Case; Wrongdoing in School Quota Case Alleged": Charles Lane of The Washington Post today provides this report. The judge in question -- Sixth Circuit Judge Boyce F. Martin, Jr. -- will be the April 2004 participant in this Web log's "20 questions for the appellate judge" feature.
Posted at 09:03 by Howard Bashman



In news from Ohio: The Cleveland Plain Dealer reports here that "Ten Commandments mural, poster different, lawyer says"; here "Death row inmate reveals inequities"; here "Mock rifle banned on Vermilion school bus"; and here "Doctors look for answers to malpractice lawsuits."

The Cincinnati Enquirer reports here that "Fight resumes on holiday displays; City wants to ban menorah, others from Fountain Square." And The Associated Press reports here that "6th Circuit court hears argument for commandments."
Posted at 08:40 by Howard Bashman



"As usual, Dahlia Lithwick has no idea what she is talking about." So begins a post from "The Curmudgeonly Clerk" that you can access here.
Posted at 00:15 by Howard Bashman







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