How Appealing

Friday, April 30, 2004
In Friday's newspapers: The New York Times reports that "White House Criticizes Justice Dept. Over Papers." In business news, "Blow to Builder Over Insurance at Ground Zero"; "Court Ruling in Europe Could Affect Microsoft"; "Key Witness Tells of Deception at Adelphia"; "Picking a Jury for a Case in the Headlines"; and "Judge Backs I.R.S. in Tax Case, Then Accepts Request for a Stay." In regional news, "Former Nurse Pleads Guilty in Death of Patients"; "Families Find Comfort in Guilty Plea, but Many Want to Know What Drove Killer"; "Hospital Where 13 Were Killed Prepares to Face Lawsuits"; "An Emotional Day in Court as Survivors Assail Judge's Reasoning on Holocaust Fund"; "Police Dept. Violated Rights of Sikh Worker, Judge Finds"; and "Brooklyn Judge Faces Trial on Bribe Charge." In sports-related news, "Judge Says Jockeys Can Ride With Ads"; "Federal Investigators Seized Vials From Bonds's Trainer"; "Jury in Williams Trial Decides 6 Counts, but Splits on 2 Others"; and "Bryant Adjusts to 2 Courts in 2 States." And letters to the editor appear under the heading "'Enemy Combatants' and the Court."

The Washington Post reports that "Only Mass. Residents to Get Marriage Licenses; Romney Won't Allow Unions for Out-of-State Gays." In other news, "Ex-Nurse Pleads Guilty to Murders; Man Said That He Killed As Many as 40 Patients." An article reports that "Lea Fastow Reaches New Plea Deal With Enron Prosecutors; Husband to Testify Against Other Insiders." In regional news, "Md. Law Requiring Gun Locks Challenged; Safeties Suffice On New Pistols, Suit Contends" and "Brentwood Postal Workers Push Lawsuit Over Anthrax." In sports-related news, "This Jockey Is Brought To You By...; Riders Are Allowed To Wear Advertising." An article reports that "Pentagon to Try to Fix War Zone Voting Woes." In other news, "Prisons Skew Census Data, Report Says." Sports columnist Michael Wilbon has an essay entitled "While Judicial Process Grinds On, Angelenos Reserve Judgment." And an editorial is entitled "Citizens and Enemies."

USA Today reports that "Legal battles of WWII underpin Bush strategy; Decades before war on terror, courts weighed in on enemy combatants, military tribunals and the reach of the judiciary." A related item is headlined "Prominent rulings." In other news, "Bush criticizes release of commissioner's records; 9/11 panel, president talk." And in other news, "New set of charges awaits Jackson; Singer back in court today as indictment is unsealed."

The Boston Globe reports that "Romney asks other states' input on marriage law." In other local news, "Acquittal stuns courthouse; Jury finds no 'joint venture' in killing of pregnant teen"; "Verdict seen to reflect growing skepticism"; and "Murder defendant eyes freedom after 30 years." And an editorial is entitled "A threat to all citizens."

In The Los Angeles Times, Maura Dolan reports that "Child Custody Rights Refined; A divorced parent's freedom to move away is limited; The state Supreme Court says a child's welfare is paramount in disputes." An article reports that "Massachusetts Limits Gay Marriages." In other news, "Release of Terrorism Memos Angers Bush; The president rebukes his Justice Department for partisan motives in making public documents related to a 9/11 panel member." In regional news, "Smog District Will Not Back Down in Pushing Fleet Rules; Air pollution officials say court ruling does not prevent them from imposing standards on publicly owned and contractor vehicles"; "Scene Set for Today's Jackson Hearing; Santa Maria expects 2,500 fans and hundreds of media members for the star's arraignment on charges contained in a grand jury indictment"; "Guards Win the First Round in Effort to Sue Prisoners Over Assaults; A Chino inmate is ordered to pay $5,000 to a corrections officer, but other suits are in limbo"; and "Campaign Finance Law Is Debated; The principal author defends Orange County's strict measure; Supervisor Norby wants it replaced with more relaxed state limits." An article reports that "Nurse Pleads Out of Death Penalty; Critical care worker who admitting giving 40 patients lethal injections agrees to work with investigators and faces two life sentences." In other news, "Jockeys Win Ad Ruling; A temporary injunction allows riders to wear advertising on pants in the Kentucky Derby." An editorial is entitled "Drama Fit for the Airwaves." Columnist Steve Lopez has an essay entitled "Top Court Ruling as Foul as L.A.'s Air." And letters to the editor appear under the heading "Court Hears Arguments on Executive Privilege."
Posted at 23:57 by Howard Bashman



Available online from National Public Radio: Today's broadcast of "Morning Edition" contained segments entitled "The Legacy of School Busing"; "World Trade Center Developer Suffers Setback"; and "Four Face Anti-Spam Charges." Also, a quite interesting segment entitled "Interview: Charles Osgood" represents the final interview that Bob Edwards conducted as anchor of the program.

Today's broadcast of "Day to Day" contained a segment entitled "The Marketplace Report: WTC Rebuilding Setback."

Finally, this evening's broadcast of "All Things Considered" contained segments entitled "Electronic Voting Machines Banned from Four Calif. Counties" and "HIV Scare Sends Adult Film Workers to Clinic."
Posted at 23:55 by Howard Bashman



Slate discovers "Da Rules": Details here.
Posted at 22:48 by Howard Bashman



"Draft Moore: Decision Time; The Alabama Supremes say they don't want him back. How about a new job?" Timothy Noah has this essay online at Slate. In related news, The Associated Press is reporting "Moore sued for attorneys' fees in monument case" and "Governor won't rush to name replacement for Roy Moore."
Posted at 22:39 by Howard Bashman



"Bush administration challenging limits on executive power": Stephen Henderson, who covers the U.S. Supreme Court for the Knight Ridder Newspapers, provides this report.
Posted at 22:35 by Howard Bashman



Saturday, May 1, 2004 is Law Day: You can access President Bush's proclamation at this link.
Posted at 22:29 by Howard Bashman



"Jockeys win right to wear advertising": This article appears today in The Courier-Journal of Louisville, Kentucky.
Posted at 22:27 by Howard Bashman



"Alabama Supreme Court overturns verdict against Hunt Petroleum": The Associated Press reports here that "The state Supreme Court overturned a $24.6 million verdict the state won against Hunt Petroleum in a natural gas royalty dispute, a ruling that could impact the $3.6 billion verdict that Alabama won against Exxon Mobil."
Posted at 22:20 by Howard Bashman



"Texas' chief justice resigning; Longtime foe of state's system of electing judges will teach law": This article appears today in The Houston Chronicle. That newspaper also contains an op-ed by Judge Mark Davidson entitled "Before he slips into history, praise for a justice." David Pasztor of The Austin American-Statesman reports that "Phillips resigns as chief justice; Judge leaves Supreme Court to teach." The Fort Worth Star-Telegram contains an article headlined "Retiring state Supreme Court chief justice lauded." And The San Antonio Express-News reports that "Top judge at state's high court to resign."
Posted at 22:16 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Judge Blocks Lawyer Self-Representation"; "Conn. Panel to Begin Impeachment of Gov."; "Andrea Yates Appeals Convictions"; and "Calif. Official Bans Some Voting Machines."
Posted at 22:08 by Howard Bashman



"Lawyer seeks seat on court that may suspend him; The Oregon Supreme Court considers whether James Leuenberger tried to delay a trust deed foreclosure case": The Oregonian today contains this article.
Posted at 17:12 by Howard Bashman



"Delray may give $15,000 to Boy Scouts despite group's anti-gay stand": This article appears today in The South Florida Sun-Sentinel.
Posted at 17:10 by Howard Bashman



U.S. Court of Appeals judge issues ruling eight and one-half months after his death: You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link. Today's decision proves beyond a doubt that the work of a federal appellate judge indeed never ends, although I cannot help but wonder whether a U.S. Court of Appeals opinion issued eight and a half-months after the authoring judge's death gives rise to a new record. Of course, it would be even more impressive if a federal appellate judge somehow managed to issue an opinion before birth.
Posted at 17:01 by Howard Bashman



"Roy Moore loses ouster appeal": The Montgomery Advertiser offers this news update. You can access today's unanimous decision by a substitute Supreme Court of Alabama at this link.

In other coverage, The Associated Press reports that "Court rejects Roy Moore's appeal of ouster as chief justice." And Reuters reports that "Alabama Won't Reinstate Ten Commandments Judge."
Posted at 15:55 by Howard Bashman



"Judge faces suspension, fine; The Pasco-Pinellas circuit judge misled voters, the state Judicial Qualifications Commission says; The sanctions must now be reviewed by the Florida Supreme Court": This article appears today in The St. Petersburg Times.
Posted at 15:11 by Howard Bashman



"Prosecutors Rest Case Against Nichols": The Associated Press provides this report.
Posted at 14:45 by Howard Bashman



The neutral assignment of judges to serve on panels of the U.S. Courts of Appeals: Many readers may find of interest the law review article that is the subject of this Web page. This detailed list of circuit by circuit practices (which, for reasons unexplained, ignores the existence of the U.S. Court of Appeals for the Federal Circuit, as this blog too once did) appears to be a wonderful resource assuming the information found there is accurate. I quickly glanced at the subsection devoted to the Third Circuit's practices, and no glaring errors jumped out at me. Also available are "Links to images of Judge John Minor Wisdom's personal notes taken during the 1963 Houston Conference" of the U.S. Court of Appeals for the Fifth Circuit, and a link is also provided to the "Blind Justice Act of 1999," a bill that would have required the random assignment of most cases at the court of appeals level.
Posted at 14:15 by Howard Bashman



"Judge's ruling carves a spot for Jesus in park": This article appears today in The Chicago Tribune.
Posted at 12:45 by Howard Bashman



"More Senate Judiciary Committee Chicanery": David Limbaugh has this essay online today at Town Hall.
Posted at 11:30 by Howard Bashman



"Anti-abortion group protests school's ban on T-shirts": The Richmond Times-Dispatch today contains an article that begins, "An anti-abortion group is protesting a school principal's decision ordering students to remove their anti-abortion T-shirts."
Posted at 11:28 by Howard Bashman



Ninth Circuit to have last word in this California three-strikes case: Henry Weinstein of The Los Angeles Times today has an article headlined "Lockyer Gives Up Three-Strikes Case" that begins, "State Atty. Gen. Bill Lockyer said Thursday he would not appeal further a high-profile three-strikes case in which a federal appeals court ruled that a 25-years-to-life sentence for the theft of a $199 VCR constituted 'cruel and unusual punishment.'" My earlier coverage of this matter can be accessed here.

In somewhat related news, today's issue of The California Aggie reports that "Attorney General takes questions from journalism students, UCD Democrats."
Posted at 11:10 by Howard Bashman



"Renzi wants 9th Circuit cut into 3 new appeals districts": The Arizona Republic today contains this article.
Posted at 11:01 by Howard Bashman



"Judge speaks about her DUI": This article appears today in The Olympian of Washington State.
Posted at 10:54 by Howard Bashman



"Appeals court: John Demjanjuk was a guard in Nazi camps, not eligible for citizenship." The Associated Press offers this report on this morning's ruling of the U.S. Court of Appeals for the Sixth Circuit.
Posted at 10:49 by Howard Bashman



"In 1st decision as judge, Pryor rules for company, arbitration": Tuesday's issue of The Decatur Daily contained this report on a development that I noted here on Monday of this week.
Posted at 10:47 by Howard Bashman



"Washington's Biggest Crime Problem: The federal government's ever-expanding criminal code is an affront to justice and the Constitution." William L. Anderson and Candice E. Jackson have this essay online at Reason.
Posted at 10:41 by Howard Bashman



U.S. Court of Appeals for the Third Circuit removes FAIR v. Rumsfeld from oral argument list for May 25, 2004: The Clerk's Office communicated this news today in a letter faxed to counsel in the case. The plaintiffs in this case challenge the constitutionality of the Solomon Amendment, a federal law intended to ensure that the U.S. military has access to on-campus recruitment. You can learn more about the case via this link.
Posted at 10:15 by Howard Bashman



"Suspect told brother to donate; Prosecution presents intercepted call in trial": Today's issue of The Idaho Statesman contains this article reporting on the terrorism prosecution underway against Sami Al-Hussayen. The Idaho Statesman also supplies this link, which provides access to documents filed in the trial court in that case.
Posted at 10:08 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "California Clarifies Child Custody Law"; "Okla. Bombing Survivors Describe Injuries"; "Judge Tosses Suit Vs. Titanic Scavenger"; and "Accused Soldier's Journal Details Prison."
Posted at 10:01 by Howard Bashman



U.S. Court of Appeals for the Sixth Circuit issues its ruling in United States v. John Demjanjuk: Today's opinion begins:
Defendant, John Demjanjuk, appeals from the district court’s order revoking Defendant's citizenship, due to Defendant's illegal procurement of such citizenship, and allowing his naturalization to be set aside pursuant to 8 U.S.C. sec. 1451(a). Because we find that Plaintiff, the United States of America ("Government"), sustained its burden of proving through clear, unequivocal and convincing evidence that Defendant, in fact, served as a guard at several Nazi training and concentration camps during World War II ("WW II"), we concur with the district court that he was not legally eligible to obtain citizenship under the Displaced Persons Act of 1948 ("DPA"). DPA, 62 Stat. 1013. We therefore AFFIRM the district court's order.
You can access the complete decision at this link.
Posted at 09:50 by Howard Bashman



In news from Seattle: The Seattle Post-Intelligencer today contains an article headlined "Justice Sanders will be able to contest complaint" that begins, "Washington Supreme Court Justice Richard Sanders apparently will get a chance to contest a judicial misconduct complaint against him despite his attorney's tardy filing of an answer to the charge." And The Seattle Times reports today that "Top Democrat berates McDermott for pledge omission."
Posted at 08:50 by Howard Bashman



Trial judge may have once thought this defense to vehicular manslaughter sucked, but jury didn't find the defense too outlandish to swallow: The Hartford Courant today contains articles headlined "A Quick Acquittal: 'Reasonable Doubt All Over' Clears Specyalski" and "Defense Lawyers Say Specyalski Acquittal No Surprise." Yesterday The Courant reported that "Specyalski Jury Hears Sex Theory Closings." My earlier mentions of this case can be found here and here.
Posted at 08:44 by Howard Bashman



In news from Pennsylvania: The Philadelphia Inquirer today contains articles headlined "Scalia: Focus on Constitution; The high-court jurist told a Phila. lawyers group that the framers' intent has gotten lost in politics" and "Former lawmaker loses appeal; The Pennsylvania Supreme Court upheld Thomas Druce's sentence in a hit-and-run case; He struck and killed a Harrisburg pedestrian in 1999." The Pittsburgh Post-Gazette reports that "Pa. Supreme Court upholds conviction of former legislator." And The Associated Press reports that "Pa. Supreme Court dismisses libel claim over reports about lawsuit against rapper." For additional links relating to yesterday's rulings of the Supreme Court of Pennsylvania, see my earlier posts here (gangsta rap) and here (hit-and-run).
Posted at 06:44 by Howard Bashman



Thursday, April 29, 2004
"Court Limits Divorced Parent’s Mobility With Children": Maura Dolan has this news update online at the Web site of The Los Angeles Times. Additional relevant links are available here.
Posted at 23:44 by Howard Bashman



Elsewhere in Thursday's newspapers: The Washington Times reports that "Top court hears 'enemy combatant' case." And an article reports that "Conservatives blame Santorum for Specter's win."

In USA Today, Joan Biskupic reports that "Justices question denying detainees hearing Terror suspects are U.S. citizens." A related article is headlined "Congress' wording key to terror case; High court debates fate of 2 captives." In other news, "High court nixes agency's strict air-quality standards." An article reports that "Kobe Bryant trial possible in August; NBA star will enter his plea at May hearing." And Angelo Ancheta has an op-ed entitled "End schools' racial isolation."

The Boston Globe reports that "Justices struggle to find balance on detainee policy." In other news, "Federal antispam law to be put to its first test." An article reports that "Firms rethinking partners' benefits." In other local news, "SJC ruling sought on posting sex offender data on web" and "Man wrongly convicted of murder loses suit; 2 detectives accused in conspiracy claim." And an article reports that "In Pa., a vote for pragmatism; GOP leaders hail Specter's win."

In The Los Angeles Times, David G. Savage reports that "Justices Question Denial of Hearings for Detainees" and "Divided Supreme Court Upholds Pennsylvania Gerrymandering." In other news, "Supreme Court Curbs AQMD in Smog Battle; In an 8-1 ruling, U.S. justices say the Southern California air quality agency went too far in making private firms buy low-pollution vehicles for fleets." An article reports that "Trial Is Likely in Late Summer; Bryant will enter a plea at next hearing; Three days in court do not resolve evidence issues." In related news, "Bryant Might Miss Olympics." An article reports that "Facing ACLU Complaint, City to Drop Seal's Cross; Redlands will remake its municipal emblem, but some residents wish officials would fight." An editorial is entitled "Choking Off Air Quality." Brad Sears and Alan Hirsch have an op-ed entitled "If Gays Are OK, Job Bias Can't Be." And letters to the editor appear under the heading "An Issue of Justice, Not Family Connections."
Posted at 23:32 by Howard Bashman



"Court employees bid farewell to Unpingco": Friday's issue of The Pacific Daily News contains an article that begins, "U.S. District Court of Guam Chief Judge John Unpingco described himself as 'speechless' when he walked out of the court yesterday afternoon to find dozens of co-workers and attorneys welcoming him to an outdoor merienda in his honor."
Posted at 23:28 by Howard Bashman



"Specter heads right back to the center": This article appears today in The Philadelphia Inquirer. And The Pittsburgh Post-Gazette today contains an article headlined "Analysis: Specter saved by Philadelphia vote; Totals also show rightward shift here."
Posted at 23:24 by Howard Bashman



"Third adult performer in LA tests positive for HIV": The Associated Press provides this report. And AVN offers more details here (possibly not work safe).
Posted at 23:10 by Howard Bashman



Available online from law.com: An article reports that "9th Circuit to Rehear Internet Jurisdiction Case." And in other news, "Jurors Deal World Trade Center Leaseholder Major Setback; $1.06 billion in coverage will not double."
Posted at 22:56 by Howard Bashman



"Pledge Omission Brings Rare Reprimand": The AP reports here that "In an unusual public reprimand, House Democratic Leader Nancy Pelosi chastised Rep. Jim McDermott of Washington on Thursday for omitting the words 'under God' while leading the House in reciting the Pledge of Allegiance." Presumably Congress has a similar reprimand in the works for the U.S. Supreme Court depending on how it rules on the currently-pending Newdow case.
Posted at 22:54 by Howard Bashman



"Pa. High Court Upholds Hit-And-Run Term": The AP offers this report on a ruling that the Supreme Court of Pennsylvania issued today upholding the sentence imposed on a former Pennsylvania state representative who, according to the article, "struck and killed a man in his sport utility vehicle in 1999 and fled the scene." The precise question presented was whether the trial judge's violation of a canon of the Code of Judicial Conduct that precludes judges from speaking with the press about cases pending before them necessitated the judge's recusal. You can access the majority opinion here, a concurring opinion here, and a dissenting opinion here.
Posted at 22:45 by Howard Bashman



Sex defense outlandish but effective: The Associated Press reports that "Conn. Woman Acquitted After Sex Defense." And The Hartford Courant reports that "Specyalski Acquitted." Back on March 3, 2004, I had a post about this case entitled "Judge thinks this defense to criminal charge sucks but concludes that 'defendant has a right to offer a defense no matter how outlandish, silly or unbelievable one might think it will be.'" Apparently the defense turned out to be not so unbelievable after all.
Posted at 22:33 by Howard Bashman



Gangsta rap, and whether a claim for loss of consortium necessarily includes the assertion that the plaintiff's sex life was damaged: If your name is C. DeLores Tucker, you might be well-advised not to lead a crusade against gangsta rap music because of the graphic possibilities for rhyme that your name presents. After Ms. Tucker and her husband sued the estate of Tupac Shakur for claims that included loss of consortium, various newspapers reported that Ms. Tucker's suit asserted that the deceased rapper's actions harmed Ms. Tucker's sex life. Today in a very interesting ruling, the Supreme Court of Pennsylvania dismissed the suit as currently worded but gave the plaintiffs an opportunity to replead their claims against the newspapers. You can access the majority opinion here, a concurring opinion here, and an opinion concurring in part and dissenting in part here.
Posted at 22:10 by Howard Bashman



"Murderer can't ask jury for death; Court rules that Seti Scanlan cannot represent himself in penalty trial": This article appears today in The San Mateo County Times.
Posted at 18:00 by Howard Bashman



If the mother moves to Ohio, custody of the children will be transferred to the father, who will remain in California: So the Supreme Court of California has decided today in a child custody ruling that you can access here.
Posted at 17:58 by Howard Bashman



"Battle lines drawn over gay marriage; Opponents, supporters launch campaigns": This article appears today in The Globe and Mail of Toronto.
Posted at 17:53 by Howard Bashman



"Justice Scalia addresses Phila. Bar Assoc." The Philadelphia Inquirer provides this news update.
Posted at 17:51 by Howard Bashman



"Supreme Court hears arguments on detention of enemy combatants": Stephen Henderson of Knight Ridder Newspapers provides this report. The Chicago Tribune reports that "Terror suspects' rights debated; Justices challenge U.S. on power to jail indefinitely." The Baltimore Sun contains an article headlined "U.S. detention tests scope of antiterror law; Justices take up cases of 2 citizens held 2 years; No charges; legal aid delayed; Unbridled authority vs. rights of Americans." The Pittsburgh Post-Gazette reports today that "Justices weigh rights, terror; American citizens challenge detention." And The Atlanta Journal-Constitution reports that "Justices ask if detentions went too far."

The Charleston Post and Courier, which is currently the hometown newspaper for both Yaser Esam Hamdi and Jose Padilla, reports that "High court hears detainee cases; Crucial questions of presidential power, judicial jurisdiction arise during hearings." The Palm Beach Post reports that "Justices grill lawyers on holding of combatants." The Virginian-Pilot reports that "Court hears 'combatant' cases; justice raises idea of a tribunal." And The Miami Herald reports that "Ex-POWs see danger in policy for combatants."

In coverage from news outlets based outside of the United States, The Telegraph (UK) reports that "Suspects' rights 'ignored by US.'" Financial Times reports that "Court urged to rein in US administration over indefinite detentions." And The Toronto Globe and Mail reports that "Bush treading on rights of citizens, U.S. top court told; Indefinite detention of 'enemy combatants' is unprecedented, lawyer tells hearing." And BBC News reports that "US hears landmark detainee cases; Lawyers for two US citizens accused of terrorism have told the Supreme Court that President Bush has no right to detain them as 'enemy combatants.'"
Posted at 17:33 by Howard Bashman



The Houston Chronicle is reporting: Two newly updated articles are headlined "Texas' chief justice quitting to teach in Houston" and "Charges against Lea Fastow scaled back in new plea bargain."
Posted at 17:30 by Howard Bashman



The Associated Press is reporting: Anne Gearan's article headlined "Scalia: Judicial Hearings Too Partisan" notes that Justice Antonin Scalia had lunch in Philadelphia, Pa. today. And in other news, "WTC Leaseholder Suffers Defeat in Trial" and "Lawyer: Ga. Boy Pressured Into Confession."
Posted at 17:05 by Howard Bashman



"Mediation fails in Gregoire suit; Lawsuit stemming from failure to appeal court verdict scheduled for trial in July": This article appears today in The Olympian of Olympia, Washington. And columnist Joni Balter has an essay entitled "Gregoire takes a hit and keeps on rollin'" in today's issue of The Seattle Times.
Posted at 16:42 by Howard Bashman



"Mother in C-Section Case Gets Probation": The Associated Press provides this report.
Posted at 15:57 by Howard Bashman



Circuit Judge Charles W. Pickering, Sr. joins in his first precedential Fifth Circuit opinion since receiving a recess appointment to that court: You can access today's per curiam opinion at this link. As I previously noted here, earlier this week Circuit Judge William H. Pryor, Jr. had the distinction of being the first of the current crop of U.S. Court of Appeals recess appointees to join in a precedential decision. Several readers today have emailed to caution against confusing Circuit Judge William H. Pryor, Jr. with D.C. Court of Appeals Senior Judge William C. Pryor (not that I would ever do that).
Posted at 15:31 by Howard Bashman



"This appeal by Byron Mitchell from a judgment in a criminal case raises important questions concerning the admissibility of latent fingerprint identification evidence under Fed. R. Evid. 702." If the admissibility and reliability of fingerprint evidence is of interest to you, don't miss today's lengthy opinion that Senior Circuit Judge Edward R. Becker issued on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit.
Posted at 14:55 by Howard Bashman



"R.I. high court candidates cut to 5 finalists; It takes the Judicial Nominating Commission four rounds of voting to trim two names from the list, which goes to Governor Carcieri this morning": The Providence Journal today contains this article.
Posted at 14:44 by Howard Bashman



"Top court upholds redistricting in Pennsylvania": This article appears today in The Pittsburgh Post-Gazette. The Philadelphia Inquirer reports that "Pa. Democrats lose high court fight over new congressional district map." The Chicago Sun-Times reports that "Justices let stand gerrymandered political districts." The Houston Chronicle reports that "Decision dims hopes of state Democrats; Pennsylvania redistricting case fails in high court." And The Dallas Morning News reports that "Justices uphold Pennsylvania remap; Ruling may be bad sign for Democratic appeal of Texas' redistricting."
Posted at 14:42 by Howard Bashman



"Roe v. Wade attorney expresses concern over future of abortion": Today's issue of The Stanford Daily contains this article.
Posted at 14:39 by Howard Bashman



"Specter, Victory in Hand, Now Pushes Bush Away": This article appears today in The New York Times. And The Washington Post today reports that "Vulnerability Seen in Specter's Win."
Posted at 14:33 by Howard Bashman



"For 'Fear Factor,' Getting Boring Is The Real Danger; After 4 Years, Reality Show Struggles to Stay Fresh; The Limitations of Worms": This front page article appears today in The Wall Street Journal. (Via "Obscure Store.")
Posted at 14:28 by Howard Bashman



Litigation over Mortal Kombat: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued an opinion by Circuit Judge Richard A. Posner in which Judge Posner observes, "there is no perfect substitute for Mortal Kombat."
Posted at 14:24 by Howard Bashman



Has the U.S. Court of Appeals for the Seventh Circuit (and Circuit Judge Richard A. Posner in particular) been too harsh toward Immigration Judges? Today Seventh Circuit Judge Terence T. Evans, in a concurring opinion that you can access here, suggests that he would answer that question in the affirmative.
Posted at 14:10 by Howard Bashman



U.S. Court of Appeals for the Ninth Circuit today grants rehearing en banc in two business cases: In Gator.com Corp. v. L.L. Bean, Inc., the court will address how if at all e-commerce affects the traditional inquiry for determining whether a court can exercise personal jurisdiction over a non-resident corporation. You can access the three-judge panel's ruling here and today's order granting rehearing en banc here.

The other case in which the Ninth Circuit granted rehearing en banc today is captioned American Consumer Publishing Ass'n v. Margosian. In that case, the court will confront the complex question of when must a federal court defer to state law enforcement activities when the objecting party challenges the state regime as unlawful. You can access the three-judge panel's ruling here and today's order granting rehearing en banc here.

It is worth noting that in both cases in which the Ninth Circuit granted rehearing en banc today, the original panel rulings were unanimous.
Posted at 13:35 by Howard Bashman



"Moore seeks protection of religious endorsement": The Birmingham News today contains this article.
Posted at 12:10 by Howard Bashman



"Girl's Death Draws Hard Look at Penalties for Violent Juveniles; A 12-year-old Georgia boy faces only 2 years in detention if convicted of strangling an 8-year-old girl": This article appears today in The Los Angeles Times. Somewhat relatedly, The Daytona Beach News-Journal today contains an editorial entitled "Juvenile executions: At least raise Florida's minimum age to 18."
Posted at 12:07 by Howard Bashman



"Skilling's lawyers say event distorted; Prosecutors' release of details criticized": Mary Flood of The Houston Chronicle today has this report.
Posted at 11:48 by Howard Bashman



Chief Justice of Texas announces he will depart from the judiciary to join faculty of law school: The "Texas Law Blog" offers these details.
Posted at 11:47 by Howard Bashman



"Changes proposed for judicial elections": This article appears today in The Minneapolis Star Tribune. Minnesota's judicial election rules are of particular interest because they recently resulted a ruling from the U.S. Supreme Court in a case that I previewed in my monthly appellate column published in The Legal Intelligencer in June 2002.

Speaking of judicial elections, The Toledo Blade today contains an article headlined "Senate votes to ban anonymous TV ads" that begins, "Senate Democrats snubbed their labor base yesterday and supported a bill prohibiting unions and corporations from directly bankrolling commercials to influence Ohio Supreme Court elections."

And speaking of the Supreme Court of Ohio, The Cincinnati Enquirer today reports that "Students learn law from traveling court; Clermont County hosts Ohio's justices."
Posted at 11:30 by Howard Bashman



"From luxe life to high life; NYU pot princess perky after bust": The New York Daily News today contains this article. An article in The New York Post is headlined "Druggies with a heart." And The Washington Square News today reports that "Alleged coke peddler arraigned; Diaco’s parents post $10,000 bail; trial set for May" and yesterday reported that "NYPD busts NYU frosh for selling coke; Cops: Hayden-based dealer peddled drugs to narcs for 6 months."
Posted at 11:07 by Howard Bashman



"Bob Edwards & the Remains of the Day; The Longtime Host of NPR's 'Morning Edition' Braces for Life After Dawn": This quite wonderful article appears today in The Washington Post.
Posted at 11:00 by Howard Bashman



In Arizona, the Ring tightens: An article headlined "Murder trial jury may have to make life-or-death decision; If defendant Anthony Gay is found guilty, jury would be first since '02 court ruling to decide whether to impose death" appears today in The Tucson Citizen. My write-up of the U.S. Supreme Court's June 2002 ruling in Ring v. Arizona can be accessed here.
Posted at 10:54 by Howard Bashman



"Law clerks recount drama of desegregation ruling": The Buffalo News today contains an article that begins, "On April 29, 1954 - 50 years ago today - Chief Justice Earl Warren gave his law clerk a daunting weekend assignment that led to the U.S. Supreme Court's most famous decision in the 20th century. Earl E. Pollock was directed to revise and expand Warren's typewritten, three-page outline into an opinion that had to be short, readable, nonlegalistic and easily understood by laymen."
Posted at 10:44 by Howard Bashman



Justice serving on Washington State Supreme Court apparently misses deadline for responding to ethics complaint: "Justice Sanders' denial may be too late" is the headline of an article published today in The Seattle Post-Intelligencer. The Daily Herald of Everett, Washington today contains an article headlined "Justice denies visit violated ethics rules; Richard Sanders says election-year politics are behind a complaint filed against him for his visit to a sex-offenders' unit" and yesterday contained an article headlined "Jurist's troubles grow; A deadline passes for state Supreme Court Justice Richard Sanders to challenge a misconduct allegation."
Posted at 09:59 by Howard Bashman



His home district is located within the Ninth Circuit: The Seattle Times reports today that "McDermott leads pledge in House, omits 'under God.'" The Seattle Post-Intelligencer reports that "McDermott's pledge error blamed on a childhood moment." And National Review Online today offers an essay by Vincent Phillip Munoz entitled "Under McDermott: A congressman's ill-advised and ill-informed Pledge stunt."
Posted at 09:54 by Howard Bashman



District of Columbia Court of Appeals reinstates one claim in lawsuit against gun manufacturers for negligent distribution, public nuisance, and strict liability: You can access today's ruling at this link. Judge William Pryor was on the panel and joined in the ruling.
Posted at 09:42 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": Nina Totenberg reports that "Supreme Court Weighs Enemy Combatant Cases." And other segments are entitled "High Court Rules Against Calif. Emissions" and "The Legacy of School Busing."
Posted at 09:38 by Howard Bashman



Atheists lose faith in Alabama government officials: The Montgomery Advertiser reports today that "Officials refuse atheists' request."
Posted at 09:33 by Howard Bashman



"Feds charge 4 under spam law; Oakland men are first in U.S. accused under new rules": This article appears today in The Detroit News. And in today's edition of The Detroit Free Press, columnist Mike Wendland reports that "4 Oakland men cited in 1st U.S. spam case; Ford, Unisys computers had unwitting role."
Posted at 09:30 by Howard Bashman



Choose litigation: The Tennessean reports today that "Pro-choice plate bill OK'd by committee."
Posted at 09:29 by Howard Bashman



On the agenda: Just moments from now, the Senate Judiciary Committee is scheduled to hold an executive business meeting. Not even a single federal appellate court nominee was reported out of last week's business meeting. Will today's result be any different? Stay tuned.
Posted at 09:28 by Howard Bashman



"Powers of the President: The Supreme Court has begun hearing arguments about whether George W. Bush can jail American citizens indefinitely if they are suspected of plotting terror; Will the justices give him a blank check?" Newsweek offers this Web exclusive written by Michael Isikoff and Mark Hosenball.
Posted at 08:23 by Howard Bashman



"Gay-marriage policy heads for state court": Bob Egelko today has this article in The San Francisco Chronicle.
Posted at 08:15 by Howard Bashman



"'It's Hard to Get It Right': Scalia's hunting trip with the veep made him a late-night-TV target; A high-court justice wounded, but very much alive." This article appears in the May 3, 2004 issue of Newsweek.
Posted at 08:14 by Howard Bashman



"Prosecution introduces e-mails into Al-Hussayen trial": This article appears today in The Idaho Statesman.
Posted at 06:58 by Howard Bashman



In Thursday's newspapers: In The Washington Post, Charles Lane reports that "Supreme Court Upholds GOP Redistricting in Pa.; Challenges to Gerrymandering Not Ruled Out." An article reports that "Patriot Act Suppresses News Of Challenge to Patriot Act." In local news, "Challenge to Metro Ad Curb Argued; Ruling in Suit Charging Censorship Could Affect Transit Systems Across Nation." And an article reports that "Lawyer Urges Trial Date in Bryant Case; Accuser Is Fearful, Her Attorney Says."

The New York Times reports that "Justices Bow to Legislators in Political Gerrymander Case." In business news, "Trial Provides Fresh Glimpse Into Wall St. Ways" and "Madonna Goes to War, This Time in Court." In local news, "State's Highest Court Hears Arguments on City Bailout Plan" and "At Last, the Windows Have No Bars." Editorials are entitled "Democracy Takes a Hit"; "Fairness for Ex-Offenders"; and "A Haven for Abused Women." And letters to the editor appear under the heading "The Abortion Debate, and the Power of a March."

In The Christian Science Monitor, Warren Richey reports that "Court throws power to draw political districts to elected officials; In upholding Pennsylvania's district lines, the Supreme Court defines more precisely what is a viable challenge." And in other news, "Specter dodges a bullet - and so does Bush; Pennsylvania incumbent's primary win leaves wounds but bolsters GOP hopes of holding Senate."
Posted at 06:33 by Howard Bashman



Wednesday, April 28, 2004
"Presidential Authority At Issue for Detainees; 'Enemy Combatant' Cases Go to Justices": Charles Lane will have this article in Thursday's edition of The Washington Post.
Posted at 23:16 by Howard Bashman



In Wednesday's newspapers: The New York Times reports that "Specter Wins Pennsylvania Senate Primary." In other news, "Juror Asks to Quit Trial Over Insurance for 9/11." An article reports that "Boy Moves Ahead in Legal Bid to Cut Ties With Killer Father." In business news, "Former Banker Returns to Stand in His Retrial" and "Tax Fear and Loathing Among the Payroll Managers." In local news, "Meadowlands Bid Process Is Challenged in State Court." And letters to the editor appear under the headings "Rights and the Patriot Act" and "Judges for Sale."

The Washington Post reports that "Justice Department Reviewing Ashcroft; FEC Data Pointed to Possible Violations." In other news, "Specter Survives Primary Challenge; Veteran Senator Narrowly Defeats Conservative Opponent in Pa. Vote." In business news, "Quattrone Insists 'Clean Up' Memo Was Innocent." And an editorial is entitled "Beyond the Duck Hunt."

The Wall Street Journal contains an editorial entitled "War and the Supreme Court: Will the Justices let the President do his job?"

The Washington Times reports that "Sealing Cheney records defended." In other news, "McDermott omits 'God' from Pledge." An article reports that "Gay 'marriage' ruling contested." In news from Pennsylvania, "Specter ekes out win over Toomey." A related article reports that "Republicans seen retaining control of Senate." An editorial is entitled "Detaining 'enemy combatants.'" And Clarence Page has an op-ed entitled "Don't ask, or tell, or leave."

In The Boston Globe, Lyle Denniston reports that "Justices give Cheney sympathetic ear; But question appeal's timing." In same-sex marriage-related news, "Lawmakers challenge SJC ruling" and "Marriage eligibility wasn't enforced; Clerks in state told to skip status." An article reports that "In Keystone contest, a battle for GOP's soul." And in local news, "Romney tells SJC to stay out of spending debate; Other branches to decide, he says."

In The Los Angeles Times, David G. Savage reports that "Justices Appear to Support Cheney Task Force Secrecy." An article reports that "State May Limit Same-Sex Marriages; Enforcement of a 1913 law would put plans on hold for couples from outside Massachusetts." In business news, "Defunct Napster's Saga Back in Court; A judge will rule whether two investors -- Bertelsmann and a venture firm -- can be held liable in copyright suits." An article is headlined "A New Leaf in Kentucky: City Bans Indoor Smoking." In news from Colorado, "Bryant Lawyers Seek Payment Disclosure; They ask for details on stays the accuser might have made at addiction treatment facilities, given limits on victims' fund" and "Hearing Should Conclude Today." In local news, "Court Upholds Ban on Closing Clinic; Harm from shutting down Rancho Los Amigos and reducing beds at County-USC outweighs financial burden, judges rule." An article reports that "Specter Barely Survives Primary; GOP centrist edges his conservative challenger in Pennsylvania fight over party's direction." And letters to the editor appear under the headings "Assessing Government's Role in Marriage" and "Patriot Act."
Posted at 22:45 by Howard Bashman



"Court Hears Case on U.S. Detainees": Linda Greenhouse will have this article in Thursday's issue of The New York Times.
Posted at 22:30 by Howard Bashman



Available online from law.com: Tony Mauro has articles headlined "High Court Weighs Landmark 'Enemy Combatant' Cases"; "Cheney Secrecy Case Reaches High Court; Justices question administration's appeal strategy"; and "Tyson Urges Supreme Court to Take Up Employment Case." In news from New York, "2nd Circuit Upholds N.Y.'s Ban on Prisoner Voting" and "Former Congressman's Defamation Suit Against Columnist Goes Forward." An article is headlined "Judge and Jury? Issue of how to implement U.S. Supreme Court ruling on death penalty goes to Florida's high court." Marcia Coyle has an article headlined "Asbestos Legislation? Motion Denied; Optimism over federal asbestos solution fades in an election year." In news from Connecticut, "Copycat Web Sites a Growing Problem; Local Internet business confronts meta tag hijacking." And in news from California, "Suit Contends Crosby Heafey Botched Patent."
Posted at 22:05 by Howard Bashman



U.S. Court of Appeals for the Fifth Circuit delivers very good news to ineffectual bank robber: And if that's not reason enough to read today's opinion, the decision also gives rise to a circuit split.
Posted at 20:20 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Ten Commandments Judge Visits Lawmakers" and "After Win, Specter Looks to Fall Election."
Posted at 20:15 by Howard Bashman



"Court Weighs Rights of Enemy Combatants": David G. Savage has this news update online at The Los Angeles Times.
Posted at 20:13 by Howard Bashman



Available online from National Public Radio: On this evening's broadcast of "All Things Considered," Nina Totenberg had a report entitled "High Court Hears 'Enemy Combatant' Cases."

And today's broadcast of "Talk of The Nation" contained a lengthy segment entitled "U.S. Supreme Court and Enemy Combatants" featuring David Savage, Deborah Sontag, Adam Charnes, and Deborah Perlstein.
Posted at 20:00 by Howard Bashman



"Cruel Detentions: The Supreme Court considers whether the president can throw away the key." Dahlia Lithwick has this Supreme Court Dispatch online at Slate.
Posted at 19:57 by Howard Bashman



President Bush, Senator Arlen Specter (R-PA), and conservative judicial nominees: Quin Hillyer, editorial writer for The Mobile Register, has some controversial thoughts on these topics here and here online at the "Southern Appeal" blog.
Posted at 17:20 by Howard Bashman



"Firing Employee for Anti-Gay Harassment Was Not Religious Discrimination, Ninth Circuit Says": This article appeared yesterday in The Metropolitan News-Enterprise. You can access Monday's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 17:15 by Howard Bashman



"Some initial thoughts on the Vieth case": Election Law Professor Rick Hasen has these comments online at his "Election Law" blog.
Posted at 17:09 by Howard Bashman



Available online from The Weekly Standard: Today Claudia Winkler has an essay entitled "Who's Afraid of the Patriot Act? Bernie Sanders thinks the Patriot Act lets the government spy on you for the books you read; Think again." And yesterday Erin Montgomery had an essay entitled "'Abort Bush': The activists at the March for Women's Lives take partisan shots--and extol the joys of abortion."
Posted at 17:08 by Howard Bashman



"Easterblogg" folds its tent: Proving that all blogs must someday come to an end.
Posted at 17:05 by Howard Bashman



"Group Files Complaint Against Ted Kennedy": Jesse J. Holland of The Associated Press provides this report.
Posted at 17:00 by Howard Bashman



"Justices Void L.A. Bus, Shuttle Smog Rules": The Los Angeles Times offers this news update.
Posted at 16:33 by Howard Bashman



On today's broadcast of NPR's "Day to Day": Today's broadcast included segments entitled "Slate's Jurisprudence: Rights of 'Enemy Combatants'" (featuring Dahlia Lithwick); "High Court More Willing to Release Audio of Arguments"; and "Specter Survives Challenge from Conservative GOP Rival."
Posted at 15:00 by Howard Bashman



Get your scorecard here: Today the U.S. Court of Appeals for the Fourth Circuit issued an en banc ruling in a death penalty case. The decision begins with the following explanation of how the judges have voted:
Affirmed in part and dismissed in part by published opinion. Judge Gregory wrote the opinion for the court in Parts I, II, III, and IV, in which Chief Judge Wilkins and Judges Wilkinson, Niemeyer, Williams, Michael, Motz, Traxler, King, and Shedd joined. Judge Luttig wrote a separate opinion concurring in the judgment entered in those parts. Judge Niemeyer wrote the opinion for the court in Part V, in which Chief Judge Wilkins and Judges Wilkinson, Williams, Traxler, and Shedd joined. Judge Luttig wrote a separate opinion concurring in the judgment entered in this part. Judge Gregory wrote a separate opinion dissenting from Part V, in which Judges Michael, Motz, and King joined.

Reversed on the McKoy issue by a per curiam opinion, in which Chief Judge Wilkins and Judges Michael, Motz, Traxler, King, Gregory, and Shedd concurred. Chief Judge Wilkins wrote a separate opinion concurring in the judgment on this issue, in which Judge Motz joined. Judge Traxler wrote a separate opinion concurring in the judgment on this issue, in which Judge Shedd joined. Judge Gregory wrote a separate opinion concurring in the judgment on this issue, in which Chief Judge Wilkins and Judges Michael, Motz, and King joined. Judge Niemeyer wrote a separate opinion dissenting from the judgment on this issue, in which Judge Wilkinson joined. Judge Luttig wrote a separate opinion dissenting from the judgment on this issue. Judge Williams wrote a separate opinion dissenting from the judgment on this issue.

Judge Widener heard oral argument in this case but later recused himself and did not participate in the decision. Judge Duncan did not participate in this case.
You can access today's ruling at this link.
Posted at 14:54 by Howard Bashman



"Supreme Court Weighs Enemy Combatant Case": Anne Gearan of The Associated Press provides this newly updated report.
Posted at 14:29 by Howard Bashman



In today's issue of The Harvard Crimson: An article reports that "HLS Team To Study Internet Censorship." In other news, "Panel Questions Idea of 'Color-Blind Society.'" And today's newspaper also includes this image.
Posted at 14:23 by Howard Bashman



When one is the lone dissenter, all responsibility for typos must rest with the authoring Justice: A reader emails to note that Justice David H. Souter's dissenting opinion today in Engine Mfrs. Assn. v. South Coast Air Quality Management Dist. contains on page 8 the word "statues" when the word "statutes" obviously was intended. See here and here. I commonly make the opposite mistake in my writing, calling statues "statutes."
Posted at 14:10 by Howard Bashman



Two first-hand reports from this morning's U.S. Supreme Court oral arguments: Two long-time "How Appealing" readers were there. My first correspondent writes:
1) I arrived at 7 a.m., and there were already 15 people in line ahead of me. Those who arrived after 7:20 a.m. had to listen to the oral arguments in the Lawyers' Lounge, although a few did get in during the second hour.

(2) I was astonished to see Judge Michael Chertoff in the audience, in the second row of the guest of honor section. I've never heard of lower federal judges sitting in oral arguments at the Supreme Court. Before it started, he "worked the audience," greeting and visiting with the Solicitor General, the Deputy SG, the Clerk (Mr. Suter), and a few others. Sitting right in front of him were Senators Kennedy and Schumer, and several congresswomen (whom I did not recognize).

(3) Although the Hamdi counsel (the federal public defender from E.D. Va.) was a bit overwrought or too impassioned -- more the style of a closing argument in a jury trial -- he did manage to get the justices to talk about what process should be provided. In contrast, while Padilla's counsel (from Stanford) did a much smoother job, she had a hard time moving from the venue argument to the substance of her client's claim. Deputy SG Clement did a smooth job of the back-to-back argument on his part, particularly in getting the Padilla argument to focus on venue, which is their strongest argument in that case.
And my second correspondent writes:
The line for the bar members was longer than yesterday, but not as long as I expected. I got there just before 6 am and was 5th in line.

Famous people in the back of the room: Senators Kennedy and Schumer were at the argument.

It is customary to entertain motions for admission to the Supreme Court bar before the arguments. Sometimes (EVEN THOUGH THEY ARE TOLD NOT TO), the attorneys moving for admission will depart from the standard script. This morning was one of those times. One attorney, moving the admission of several attorneys, started out with "I am extremely proud . . ." (not the correct way to begin) and added some more non-scripted comments a bit later. The Chief Justice interrupted him, saying "Just proceed if you will, this is a formal type of presentation." General Olson moved for admission for one (lucky) guy.

The Hamdi case was first. The first couple of questions/comments were from O'Connor. She started by asking "Do we have precedents for applying the writ [of habeas] in wartime conditions to enemy combatants?"

Some other questions/comments from O'Connor:
-Congress did pass the authorization for use of military force. What application does that have here?
-It does say in the authorization that the President can use all necessary and appropriate force.
-So you say that the regulations in place provide that battlefield type of review? Was he provided with that type of review?
-Have we ever had a situation like this where this warlike status could last 25 or 50 years?

Questions/comments from Kennedy:
-I am asking you to distinguish between a citizen and a non-citizen where both are enemy combatants.
-What do you want to happen at this hearing? Do you want the military to send a Gulf Stream over with ten witnesses?

One attorney said that there was no definition of "enemy combatant." Scalia commented that it means "somebody who is combating." Scalia noted that "certainly the President has the right to kill foreign combatants" and asked "he has the right to kill but not to detain?"

Stevens asked "Is there anything in the law that curtails the method of interrogation?"

Souter commented that the government's argument seemed to be "Don't worry about the timing, we'll tell you when it [the state of war] is over."

Paul Clement commented several times that there are troops still on the ground in Afghanistan. Sometimes he commented that there are 10,000 troops on the ground in Afghanistan.

In his rebuttal, Hamdi's attorney began with something of a backhanded compliment: "Mr. Clement is a worthy advocate and can stand up here and make the unreasonable sound reasonable."

The Padilla case was second. Clement spent a lot of time on the jurisdiction issue (the government argued in its brief that "The court of appeals erred in this case in holding that jurisdiction lies in the Southern District of New York over a habeas challenge to Padilla’s present, physical confinement in South Carolina.").

The best question in terms of crowd reaction was O'Connor's: "Where does jurisdiction lie for someone from Guantanamo?" [laughter]. Stevens asked "What difference does it make to the government where they defend?" Clement did not answer: "Because we want to be in the 4th Circuit because it's the most conservative circuit."

A number of times, Breyer referred to the "necessary" and "appropriate" language of the Congressional authorization for use of force, suggesting that it should be read "in light of our traditions."

Ginsburg asked a number of questions:
-If the law is what the President says it is . . . what is it that would be a check against torture?
-Is it just up to the good will of the executive?
-Did Congress consider other systems of preventative detention [used in other countries] that provide for periodic review?

Finally, is "reticulated" the word of the month? Scalia used it in the Guantanamo oral argument. And Clement commented that Congress could pass "reticulated" provisions. (By the way, I am impressed that he can argue such an important and complex case without notes).
I thank both readers for their reports.
Posted at 14:05 by Howard Bashman



C-SPAN has made the audiotapes of today's U.S. Supreme Court oral arguments available online, on demand: Click here to listen to oral argument in Hamdi v. Rumsfeld and click here to listen to oral argument in Rumsfeld v. Padilla (Real Player required).
Posted at 13:33 by Howard Bashman



C-SPAN3 is now broadcasting the audio of today's U.S. Supreme Court oral argument in the Padilla case: You can access the broadcast via this link.
Posted at 12:33 by Howard Bashman



"Hale supporters confused about whom to hate": Columnist John Kass has this essay today in The Chicago Tribune.
Posted at 12:19 by Howard Bashman



"Court Hears Enemy Combatant Arguments": Anne Gearan of The Associated Press provides this updated report.
Posted at 12:12 by Howard Bashman



"Judge will toss terror charges if conspiracy isn't proven; Lodge chastises both sides over evidence in case": This article appears today in The Idaho Statesman.
Posted at 12:08 by Howard Bashman



"Bush Aide on Court Nominees Faces Fire as Nominee Himself": Neil A. Lewis has this article today in The New York Times. And The Washington Times today reports that "Another judicial pick in cross fire."
Posted at 11:54 by Howard Bashman



C-SPAN3 has just begun its broadcast of today's U.S. Supreme Court oral argument in the Hamdi case: You can access the broadcast via this link.
Posted at 11:32 by Howard Bashman



"Infographic: Guantanamo Detainees' Complaints." The current issue of The Onion offers this item.
Posted at 11:29 by Howard Bashman



"Still No Citing Allowed; Superior Court Remains Opposed To Use of Memorandum Decisions": The Legal Intelligencer today contains this report (subscription required) on a recent ruling of the Superior Court of Pennsylvania that I first mentioned here. I am quoted extensively in the article, as is Law Professor Arthur D. Hellman, and this represents the first time that I have spoken out publicly against a Pennsylvania state appellate court's no-citation rules.
Posted at 11:01 by Howard Bashman



C-SPAN expects to begin broadcasting the Hamdi oral argument audiotape at 11:15 a.m. eastern time: Its broadcast of the Padilla oral argument audiotape is scheduled to begin at 12:20 p.m. eastern time.
Posted at 10:55 by Howard Bashman



Today's U.S. Supreme Court opinions: The Supreme Court of the United States issued opinions in two argued cases today.

1. Justice Antonin Scalia delivered the opinion in Vieth v. Jubelirer, No. 02-1580, and the judgment under review was affirmed. The syllabus is available here, Justice Scalia's opinion announcing the judgment of the court here, the opinion of Justice Anthony M. Kennedy concurring in the judgment here, the dissenting opinion of Justice John Paul Stevens here, the dissenting opinion of Justice David H. Souter here, the dissenting opinion of Justice Stephen G. Breyer here, and the oral argument transcript here.

2. And Justice Scalia also delivered the opinion in Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., No. 02-1343, and the judgment of the U.S. Court of Appeals for the Ninth Circuit was vacated and remanded. The syllabus is available here, Justice Scalia's opinion for the court here, the dissenting opinion of Justice David H. Souter here, and the oral argument transcript here.

In press coverage of today's news from the Court, Gina Holland of The Associated Press reports that "Court Affirms Pa. Congressional Districts." Anne Gearan reports that "Court Hearing Cases on Enemy Combatants." And in other coverage, "Supreme Court Nixes Calif. Antismog Rule." Reuters, meanwhile, reports that "High Court Upholds Pennsylvania Redistricting" and "Supreme Court Strikes Down Local Diesel Vehicle Ban." And James Vicini reports that "Supreme Court to Consider Enemy Combatants' Rights."
Posted at 10:01 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": Today's broadcast contained segments entitled "Hamdi Case Goes to Supreme Court" (featuring Nina Totenberg); "Kavanaugh"; "The Legacy of School Busing"; and "Specter Wins Penn. Primary" (Real Player required).
Posted at 09:00 by Howard Bashman



On the agenda: The Supreme Court of the United States, beginning at 10 a.m. today, will hear oral argument in two cases that are likely to determine under what circumstances the U.S. military may hold a U.S. citizen incommunicado in a military brig on charges that he is an enemy combatant in the war on terror. Yaser Esam Hamdi was detained on the field of battle overseas, while alleged dirty-bomber Jose Padilla was arrested in Chicago. The briefs filed in the Hamdi case can be accessed here, while the briefs filed in the Padilla case are available here and here.

Once again, the Supreme Court will make the oral argument audiotapes available to the press immediately after the oral arguments conclude, and C-SPAN will broadcast the oral arguments just as soon as those audiotapes are released. The Court this morning is scheduled first to hear oral argument in the Hamdi case, followed by oral argument in the Padilla case. When links to the online broadcast of those audiotapes become available, I will be sure to post them.

And before the oral arguments get underway this morning, the Court is scheduled to issue one or more opinions in argued cases.
Posted at 06:05 by Howard Bashman



Tuesday, April 27, 2004
Follow the results from today's Republican U.S. Senate primary in Pennsylvania: Results are available here, here, and here. As of this moment, it's too close to call. In other election-related news, I offer congratulations to my friend and former colleague Jim Eisenhower, who has once again won the Democratic nomination for Attorney General of Pennsylvania. Pennsylvania voters have never elected a Democrat to that post.

Update: The Associated Press reports that "Specter Ekes Out Win in Pa. Primary."
Posted at 23:55 by Howard Bashman



Elsewhere in Tuesday's newspapers: In USA Today, Joan Biskupic reports that "Court lets ruling on prayer stand; Justices divided on taking case from Va. college." In other news, "Jackson says case needs his lawyers' 'full attention'; Singer says he fired attorneys because 'my life is at stake.'" And an article reports that "3-day Bryant hearing confronts key issues."

In The Los Angeles Times, David G. Savage reports that "Va. College Still Can't Say Grace; Supreme Court's refusal is the latest rejection of VMI's effort to retain a dinnertime prayer." Maura Dolan reports that "State to Disclose Insurers' Practices; A California high court ruling grants consumers access to firms' coverage reports in an effort to combat redlining." In other news, "Supremacist Guilty in Plot to Kill Judge; The defendant's lawyer, who called no witnesses, say prosecutors were 'out to get' his client." In regional news, "Jackson Explains Firing of Lawyers; Singer says 'my life is at stake' and he needs 'full attention' of legal team"; "A Homecoming of Sorts for Attorney; Thomas Mesereau is working for Michael Jackson after turning him down last year"; "Professor Is Charged in Alleged Hoax; Claremont McKenna instructor is accused of staging hate crime; She maintains innocence"; "Activists Win One in Battle Over Pate Foie Gras; Senate panel votes to ban sale of delicacy produced by the force-feeding of ducks and geese; Fans of the dish are concerned"; "Court Is Asked to Free Man in Racer's Death; Michael Goodwin, held in Mickey Thompson's slaying, deserves liberty, appellate jurists are told"; "Ruling Goes Against 'Outdoor' Church; Judge won't lift an order by Huntington Beach that a minister says forces alfresco worship"; and "Parolee Appeals Plan to Deport Her; Maria Suarez, who served 22 years in prison for her role in the murder of her torturer, is a legal immigrant, but not a U.S. citizen." In other news, "Teen Wants to Sever Ties With His Mother's Killer: His Father." In news from Colorado, "Wheels of Justice Turn Slowly in Bryant Case; Hopes dim that a trial date will be set soon, as rape-shield hearing and disputes over evidence and terminology continue." And an article reports that "Judge Hears Jockeys' Case; Closing arguments scheduled for today on the issue of the riders' wearing advertising."

In The Boston Globe, Lyle Denniston reports that "Justices won't hear prayer case appeal; VMI loses bid to maintain its supper custom." In local news, "School financing unfair, judge rules; Findings go to the SJC." An article reports that "Specter represents yardstick for GOP." In business news, "Medco settles with US, 20 states, agrees to curbs and to pay $29m." And an editorial is entitled "A finding for fair schools."

Finally for now, The Washington Times contains an op-ed by Bruce Fein entitled "Wartime justice."
Posted at 23:20 by Howard Bashman



In Wednesday's issue of The New York Times: Linda Greenhouse reports that "Justices Hear Arguments in Energy Task Force Case." And in other news, "Texas Jury Rules Against the Maker of Fen-Phen, a Diet Drug."
Posted at 23:15 by Howard Bashman



In news from Colorado: The Associated Press reports that "Lawmakers back off on judge's impeachment." The article begins, "Colorado lawmakers today soundly rejected a plan to impeach Denver District Judge John Coughlin because of his ruling in a child custody case involving a lesbian couple, saying he apparently made the best decision possible."
Posted at 23:11 by Howard Bashman



"Supreme Court Hears Arguments on Cheney Case; Administration Frames Dispute as Test of Executive Power": Charles Lane of The Washington Post provides this report. And this evening's broadcast of NPR's "All Things Considered" included segments entitled "Court Hears Cheney Energy Task-Force Case" (featuring Nina Totenberg) and "Cheney's Impact on Energy Policy."
Posted at 20:40 by Howard Bashman



"Bush's Lawyer: No One Knew Memos Taken." Jesse J. Holland of The Associated Press provides this report.
Posted at 20:05 by Howard Bashman



"I've Got a Secret: Dick Cheney's absolute right to know and not tell." Dahlia Lithwick has this essay online at Slate.
Posted at 20:02 by Howard Bashman



"Lawmakers ask high court to vacate its decision on marriage": The Associated Press provides this report from Boston. You can access online at this link the document filed today in the Supreme Judicial Court of Massachusetts. And the American Center for Law and Justice today issued a press release entitled "ACLJ Files Legal Challenge on Behalf of a Group of Massachusetts Legislators to Stop the Mass. Supreme Judicial Court Decision Allowing Same-Sex Marriage."
Posted at 18:08 by Howard Bashman



"Wyeth Must Pay $1 Billion to Family of Fen-Phen User": Bloomberg News provides this report. In response to the development, Wyeth has issued a press release entitled "Wyeth to Appeal Verdict in Diet Drug Case." Reuters had previewed the case in an article headlined "Wyeth braces for possible costly fen-phen verdict."
Posted at 18:00 by Howard Bashman



"Bush's power vs. rights of detained citizens; Hamdi and Padilla cases test presidential reach in wartime": Warren Richey will have this article in Wednesday's issue of The Christian Science Monitor.
Posted at 17:29 by Howard Bashman



"Padilla's life and Times": San Francisco Chronicle columnist Debra J. Saunders today has this essay in that newspaper.
Posted at 17:22 by Howard Bashman



"Locke warns judges against public drinking": The Associated Press provides this report from Washington State.
Posted at 17:20 by Howard Bashman



"IRS judgments": This editorial appears today in The Las Vegas Review-Journal.
Posted at 17:19 by Howard Bashman



"Supreme Court Tapes": This interview (Real Player required) with Harvard Law Professor Charles Fried about today's U.S. Supreme Court oral argument appeared on today's broadcast of NPR's "Talk of the Nation."
Posted at 17:05 by Howard Bashman



"Indian Tribes Seek Kennewick Man Remains": The Associated Press provides this report.
Posted at 16:44 by Howard Bashman



D.C. Circuit nominee Brett M. Kavanaugh is "the Zelig of young Republican lawyers": That's what U.S. Senator Charles E. Schumer (D-NY) said in his opening remarks at today's Senate Judiciary Committee hearing. You can access the prepared remarks of other Senators on the committee via this link. I'd say that Kavanaugh appears to be in line to be the nth U.S. Court of Appeals nominee of President George W. Bush to be filibustered in the U.S. Senate, but, for reasons that this chart illustrates nicely, it's rather difficult to determine the appropriate number to use.
Posted at 16:02 by Howard Bashman



"Cheney Secrecy Case Goes to High Court": David G. Savage of The Los Angeles Times provides this news update.
Posted at 14:40 by Howard Bashman



On today's broadcast of NPR's "Day to Day": Today's broadcast included segments entitled "Slate's Jurisprudence: Cheney's Energy Task Force" (featuring Dahlia Lithwick) and "Accusing the Famous of Rape or Sexual Assault" (Real Player required).
Posted at 14:30 by Howard Bashman



"We Need New Leadership": Manuel Miranda has this essay online today at the GOPUSA Web site.
Posted at 14:11 by Howard Bashman



"Supreme Court refuses to reconsider ban on VMI mealtime prayers": Stephen Henderson of Knight Ridder Newspapers provides this report. The Pittsburgh Post-Gazette today reports that "Supreme Court justices in sharp exchange over refusal to hear VMI prayer case; Scalia strongly protests decision." And The Roanoke Times reports that "High court denies VMI prayer appeal."
Posted at 14:07 by Howard Bashman



Access online the audio feed of this morning's U.S. Supreme Court oral argument: Via C-SPAN, you can access the audio feed online, on demand, at this link (Real Player required).
Posted at 13:50 by Howard Bashman



A first-hand report from this morning's U.S. Supreme Court oral argument: A long-time reader emails:
I attended the Cheney v. US District Court argument this morning.

I was surprised by how few people were in the bar member line. I arrived at 7:15 am and was eighth in line. The person at the front of the line had arrived at 5:15 am. There ended up being about dozen empty seats in the bar member area of the courtroom.

The bar member line was an interesting mix of people. Just behind me were people talking about their clerkships with conservative judges and Justices. In front of me were people talking about the "March for Women's Lives" last weekend.

The public line was longer. At 7:20 am, there were about 70 people in line.

General Olson started his argument with "This is a case about the separation of powers. The Constitution commits to the discretion of the president . . ." and listed things that were committed to his discretion.

Several justices were active questioners. Scalia was one of the most active. The first question to General Olson was from Kennedy, who noted that the case involved a separation of powers question to the extent that it involved the ability of the courts to formulate rules to prevent deciding unnecessary questions. Ginsburg asked the second question, noting that the Court would not reach the merits if it adhered to the firm final judgment rule. The third and fourth questions/comments were from Kennedy again, first noting that in the Nixon case, the president exercised his privilege and it was overruled. General Olson responded about the risk of defying a court order. Kennedy noted that you're not defying a court order if you assert the privilege.

Some of the main themes in questioning: What does it mean to be a "de facto" member? Is getting discovery the same as winning the lawsuit, or would winning entitle the claimants to more than they would get in discovery? There were also questions about creating an exception to the collateral order doctrine to allow an appeal like this one.

O'Connor didn't ask very many questions. She noted that, at some point, the government could have made a 12(b)(6) motion on constitutional grounds, and then could have sought review of the denial. She asked why the government didn't do that, noting that it would have given the courts the chance to address the question directly.

Some Scalia questions/comments:

-What if the manner in which the committee utilized outsiders, the non-governmental employees, was that they actually were given a vote?
-I think executive privilege means that whenever the president feels he is threatened, he can refuse to comply with a court order.
-The essence of being a committee member is having a vote on the outcome.
-Were assistants to agency officials who were on the task force, who attended meetings, also members?
-Involvement of private individuals with the task force did not equate with membership in the task force.
-What is it that makes you a de facto member? [then he suggested that it was voting]

An aside about General Olson's argument. A member of the SG's office sat next to General Olson during his argument, acting as a timekeeper. He had a steno-sized notepad with numbers on it, and a timer. In turning the pages, there was some rustling of paper--not a lot, but more than nothing. I had seen General Olson argue before, but had not noticed him using a timekeeper in this manner.
Thanks much for this detailed report.
Posted at 12:20 by Howard Bashman



"Supreme Court Hears Cheney Secrecy Case": Gina Holland of The Associated Press provides this early report on today's oral argument. Update: You can access here a later, more detailed report from Ms. Holland.
Posted at 11:30 by Howard Bashman



Access online the audio from this morning's U.S. Supreme Court oral argument in Richard B. Cheney, Vice President of the United States, et al. v. United States District Court for the District of Columbia, et al.: C-SPAN3 is broadcasting the audio now, and you can access it via this link.
Posted at 11:17 by Howard Bashman



"Byrd eases stand on death penalty for teen murderers": The South Florida Sun-Sentinel today contains this article.
Posted at 11:17 by Howard Bashman



"School removes gay student's political posters; ACLU backs teen, says slogans are protected": This article appears today in The Charlotte Observer.
Posted at 10:44 by Howard Bashman



"Law School Votes To Alter Introductory Class; Revised course to focus on research, writing and oral presentation": Today's edition of The Harvard Crimson contains this report.
Posted at 10:30 by Howard Bashman



"Appeals judge urges liberal interpretations of Constitution": This article appears in today's issue of The Dartmouth.
Posted at 10:25 by Howard Bashman



"Law school turf war ignites; The Federalist Society vies with emerging ACS": The current issue of The National Law Journal contains this article.
Posted at 10:07 by Howard Bashman



"US to probe taking of computer files; GOP staff leaked Democrats' memos": This article appears today in The Boston Globe. The Los Angeles Times reports today that "Senate Hacking Inquiry Widens; The Justice Department opens a criminal probe into allegations that Republican staffers downloaded and read Democratic memos." And The Washington Times reports that "U.S. attorney to probe stolen memos."
Posted at 09:40 by Howard Bashman



On the agenda: Today at 10 a.m., the Supreme Court of the United States will hear oral argument in Richard B. Cheney, Vice President of the United States, et al. v. United States District Court for the District of Columbia, et al. C-SPAN3 and C-SPAN Radio are scheduled to air the audiotape of this oral argument at 11:15 a.m. today. I'll try to provide links to the online feeds when they become available.

And if that's not enough excitement for one day, also at 10 a.m. today the Senate Judiciary Committee will hold a confirmation hearing for D.C. Circuit nominee Brett M. Kavanaugh. You can access online a live video feed at this link (Real Player required) once the confirmation hearing gets underway. And you can access a preview of the confirmation hearing here.
Posted at 09:30 by Howard Bashman



"High Court Hears Cheney Energy Records Case": Nina Totenberg had this report (Real Player required) on today's broadcast of NPR's "Morning Edition."
Posted at 09:25 by Howard Bashman



"He tired of drug cases; Jury duty, and deja vu, for ex-judge": This article appears today in The Philadelphia Inquirer.
Posted at 09:22 by Howard Bashman



"Cheney Secrecy Case Goes to High Court": Gina Holland of The Associated Press provides this report.
Posted at 06:34 by Howard Bashman



"Racist leader convicted of murder plot": The Chicago Sun-Times contains this report today. And The Chicago Tribune reports that "Hale guilty on 4 counts; Jurors say e-mail, tapes sealed verdict in plot to kill judge" and "Double talk disguises call to arms; But Hale's seeds of hate took root in his followers."
Posted at 06:32 by Howard Bashman



"Judge rejects Web site evidence; Prosecution must show defendant affected content": This article appears today in The Idaho Statesman.
Posted at 06:30 by Howard Bashman



In Tuesday's newspapers: The Washington Post reports that "Supreme Court Lets Stand Ban on VMI Prayer." In other news, "Prosecutor Named to Probe Senate Files Case." An article reports that "Md. Killer Set for Execution After High Court Rebuff." In business news, "SEC Sanctions Begin at Ernst & Young." An article is headlined "In Williams Trial, Closing Arguments; Jury to Decide if Ex-NBA Player Was Reckless With Gun." In other news, "Studies, Trips Convey Barriers Overcome." In regional news, "March Leaders Not Settling for High Turnout" and "Altered Jury Convicts 4 Members of D.C. Street Gang." And an editorial is entitled "Victims' Rights Victory."

The New York Times reports that "Computer Student on Trial for Aid to Muslim Web Sites." In other news, "Justice Dept. Drops Demand for Hospital's Abortion Files." An article reports that "Jackson Says 'Full Attention' of Legal Team Was Lacking." In business news, "Medco to Pay $29.3 Million to Settle Drug Switching Complaints." An article reports that "Jockeys Wearing Ads Reined In at the Derby." And in regional news, "Lawyers Make Final Arguments in Williams Trial"; "Death Row Appeal for a Killer Who Prevented an Effort to Win Sympathy"; "Plea Deal Near for Nurse in 30 Deaths"; "Crash Is Still Haunting Grubman"; and "Ex-Judge Is Accused of Impersonating One at Traffic Stop."
Posted at 06:05 by Howard Bashman



Monday, April 26, 2004
"After the wedding bells, gays face maze of legal obstacles": The San Francisco Chronicle today contains this report. And The Philadelphia Inquirer today reports that "Couple intend to fight law to marry; After being rejected for a license in Bucks, two men say they will challenge the state ban on same-sex unions."
Posted at 23:58 by Howard Bashman



"Patriot Act may see revisions": This article appears today in The Pittsburgh Post-Gazette.
Posted at 23:55 by Howard Bashman



Elsewhere in Monday's newspapers: The Boston Globe, in same-sex marriage-related news, contains articles headlined "Marriage restriction debated; Under Romney plan, couples face checks" and "A dress rehearsal; At wedding expo, same-sex couples envision big day." In other news, "D.C. rally on rights fills Mall; Protesters hit Bush over women's health." Editorials are entitled "Oregon's vital experiment" and "The gender gap arises." Cathy Young has an op-ed entitled "The attack on secularism." And Saul Kassin has an op-ed entitled "Videotape police interrogations."

The Los Angeles Times reports that "1 of 3 in California Favor Gay Marriage; The state is more open to the idea than the nation as a whole, less likely to see issue in moral terms." In other news, "Abortion Rights Marchers Decry Global Setbacks; Protesters hold one of the biggest rallies seen in Washington as they seek to renew a movement hit by years of reversals in the U.S. and abroad." An article reports that "Bryant Is Back in Court Today; Rape-shield hearing tops the agenda on the first of three days of proceedings." In regional news, "Jackson Replaces His Lead Attorneys; Thomas Mesereau Jr. will take over for Mark Geragos and associate in child molestation case"; "Bonds' Attorney Attacks Steroid Allegations; He blames government for leaking information to newspapers that implicates Giant star"; and "A High-Placed Father With Son in Trouble; An O.C. sheriff's official laments the gravity and publicity of a gang-rape case targeting his son and others." And a letter to the editor appears under the heading "Adding Mexican Trucks."

The Washington Times contains an article headlined "Pro-choice rally on Mall." And Nat Hentoff has an op-ed entitled "The real Judge Charles Pickering."
Posted at 23:40 by Howard Bashman



"Where Federal Judges Went to Law School": Law Professor Brian Leiter has done the math. I'm pleased to see where my alma mater ended up on the list. Update: Let's just say I was more pleased with my alma mater's rank before the list was amended and corrected.
Posted at 23:33 by Howard Bashman



Available online from law.com: An article reports that "High Court Mulls Antitrust Issues in Multinational Vitamin Suit." Tony Mauro's Courtside column is headlined "The Justice as Advocate; Also, Stevens looks back -- and O'Connor figurine is the latest to go bob, bob, bobbing along." An article reports that "Feds End Effort to Use Abortion Records." In news from Florida, "Sex E-Mails to Minors Not Shielded by First Amendment." And an article is headlined "The New Math: Some lawyers find profits-per-partner figures are no longer enough to measure performance."
Posted at 23:30 by Howard Bashman



In Tuesday's issue of The New York Times: Linda Greenhouse reports that "Justices Won't Hear Military-College Appeal on Dinner Prayer." In other news, "Justice Dept. Opens Inquiry on Memo Theft." An editorial is entitled "Mr. Cheney's Day in Court." And columnist Paul Krugman will have an op-ed entitled "A Vision of Power."
Posted at 23:10 by Howard Bashman



"Cheney's day before Supreme Court; Sierra Club, Judicial Watch eye energy task force": Tom Curry, national affairs writer for MSNBC, has this preview of tomorrow's U.S. Supreme Court oral argument. And today's issue of USA Today contains articles by Joan Biskupic headlined "Justices weigh release of energy documents" and "Scalia scoffs at notion that he's biased toward Cheney."
Posted at 21:10 by Howard Bashman



"Yawn: The gay marriage anti-climax." Law Professor Jeffrey Rosen has this essay in the May 3, 2004 issue of The New Republic.
Posted at 19:26 by Howard Bashman



"Peter Smith is a pseudonym for a close observer of the judicial-confirmation battles": And "Peter" has an essay entitled "Specter & the Unborn: Why Toomey matters" today at National Review Online.
Posted at 19:21 by Howard Bashman



Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained segments entitled "High Court Hears Vitamin Antitrust Case" (featuring Nina Totenberg); "Racist Hale Convicted in Federal Murder Plot"; "Mass. Governor: Marriages Won't Transfer"; and "Specter Faces Toomey in Primary."

Today's broadcast of "Talk of the Nation" contained a segment entitled "Cheney Supreme Court Preview."

Today's broadcast of "Day to Day" contained segments entitled "An Oregon Gay Couple's Plans for the Future" and "Porn Industry Balks at Mandatory Condom-Use Proposals."

And today's broadcast of "Morning Edition" contained a segment entitled "Women's Rights March Draws Hundreds of Thousands."
Posted at 19:05 by Howard Bashman



"Regent University names Judge William Pryor, Jr. as 2004 Commencement Speaker": Regent University last month issued this press release. You can learn more about Regent University at this link.
Posted at 18:20 by Howard Bashman



"In Cheney case, court reviews executive power; With a duck hunt as a backdrop, top US justices hear a dispute on access to White House records": Warren Richey will have this article in Tuesday's issue of The Christian Science Monitor.
Posted at 18:19 by Howard Bashman



"Report of People For the American Way in Opposition to the Confirmation of Brett M. Kavanaugh to the United States Court of Appeals for the D.C. Circuit": You can access the report, issued today, at this link. Today, The Washington Post offers online Dan Froomkin's "White House Briefing," which states (in its seventh item):
It Could Get Ugly

Tuesday morning at 10 a.m., the full Senate Judiciary Committee holds a hearing on the nomination of Brett M. Kavanaugh to be U.S. Circuit Judge for the District of Columbia Circuit.

Kavanaugh, currently White House staff secretary, was formerly associate counsel at the White House -- and a major player in selecting Bush's often controversial judicial nominees.

He is now one himself, and to one of the nation's highest courts.

Kavanaugh was a key member of independent counsel Kenneth W. Starr's team and even wrote the section of the Starr report that outlined possible legal grounds or President Clinton's impeachment.

He's currently one of the White House's ultimate insiders. As staff secretary, he controls the flow of paper into the Oval Office (see americanpresident.org.) And he's engaged to be married to Ashley Estes, the president's personal secretary.

Here's Kavanaugh's resume.
As The Washington Post has noted, Kavanaugh's confirmation hearing is scheduled to begin tomorrow at 10 a.m. in the Senate Judiciary Committee.
Posted at 17:43 by Howard Bashman



Circuit Judge William H. Pryor, Jr. participates in his first published Eleventh Circuit ruling: You can access today's per curiam ruling of the U.S. Court of Appeals for the Eleventh Circuit at this link. Perhaps this answers the question how Judge Pryor's colleagues would respond to Senator Edward M. Kennedy's letter of March 5, 2004. Coincidentally, as "Southern Appeal" notes here, today is Judge Pryor's 42d birthday.
Posted at 16:59 by Howard Bashman



"Two men proud to have helped defeat state's sodomy law": The Associated Press provides this report from Houston, Texas.
Posted at 16:27 by Howard Bashman



"Top U.S. court skeptical of foreign antitrust case": Reuters reports here that "U.S. Supreme Court justices on Monday expressed grave reservations about an appeals court ruling that would allow foreign companies, claiming they were overcharged outside the United States, to pursue antitrust claims in U.S. courts." Earlier today, Financial Times previewed this oral argument in an article headlined "Supreme Ct to try foreigners' right to sue drug makers in US."
Posted at 16:25 by Howard Bashman



"Cases test law giving legal rights to fetuses": The Houston Chronicle today contains this article.
Posted at 16:23 by Howard Bashman



"FBI combs house of suspect in federal prosecutor's slaying": This article appears online at the Web site of The Seattle Times.
Posted at 15:46 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Supreme Court to Decide Tax Fairness Case." And in other news, "Supreme Court Turns Away Allstate Lawsuit"; "Judge Blocks Terror Web Site From Jurors"; "Agent Links Bombing Plastic to Nichols"; and "Boxes Seized From Prosecutor Slay Suspect."
Posted at 15:31 by Howard Bashman



Last minute change at the lectern in last case to be argued in the October 2003 Term: The last case in which the U.S. Supreme Court is scheduled to hear oral argument this term is Donald H. Rumsfeld v. Jose Padilla. Tony Mauro reports in the brand new issue of Legal Times that Donna R. Newman, who has represented Padilla from the outset, is no longer scheduled to present this Wednesday's Supreme Court oral argument. Instead, arguing for Padilla will be Stanford Law Professor Jenny Martinez.
Posted at 14:20 by Howard Bashman



"Guantanamo: Why The President Is Courting Defeat." Stuart Taylor Jr. has this essay in today's issue of National Journal.
Posted at 14:00 by Howard Bashman



Falling heavy merchandise from a high shelf that seriously injures a customer at a warehouse store does not provide the customer with a claim for punitive damages under Indiana law: You can access today's ruling of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit at this link.
Posted at 13:25 by Howard Bashman



"White Supremacist Guilty of Murder Plot": The Associated Press provides this report from Chicago.
Posted at 13:00 by Howard Bashman



Stuart Buck notes that cert. was granted this morning in a case where he participated in writing the petition: You can access his post at this link.
Posted at 12:08 by Howard Bashman



Today's U.S. Supreme Court Order List: You can access the Order List at this link. The Court granted review today in two tax cases raising important and interrelated issues. In granting review, the Court consolidated the cases for oral argument. The Court also denied review in the VMI supper prayer case, over the dissent of two Justices. Justice Antonin Scalia issued this dissenting opinion, in which the Chief Justice joined. The opinion of Justice John Paul Stevens concurring in the denial of certiorari, in which Justices Ruth Bader Ginsburg and Stephen G. Breyer also joined, can be accessed here.

In early press coverage, Anne Gearan of The Associated Press reports that "Court Won't Reinstate Prayer at School." Gina Holland reports that "Supreme Court Orders Campaign Law Review." And an article reports that "Supreme Court Won't Hear Potato Dispute." Meanwhile, from Reuters, James Vicini reports that "Supreme Court Rejects Appeal on VMI Supper Prayers."
Posted at 10:00 by Howard Bashman



On the agenda: The Supreme Court of the United States is scheduled to issue an Order List at 10 a.m. today.
Posted at 08:50 by Howard Bashman



Please join me in welcoming the Justice Sandra Day O'Connor bobblehead doll: First a windmill (details available here, here, and here), and now -- thanks to the good folks at The Green Bag -- a bobblehead doll. She will join her two more senior colleagues (see here and here) on the shelf. At this juncture the really difficult work begins: determining how to depict Justice Antonin Scalia as a bobblehead.
Posted at 08:35 by Howard Bashman



In Monday's newspapers: The New York Times, in abortion-related news, contains articles headlined "Abortion-Rights Marchers Vow to Fight Another Bush Term" and "Against Abortion but in Favor of Choice." In other news, "'Follow the Law' on Marriage, Massachusetts Tells Officials." An article reports that "Florida Legislators Take on a Voter Right." In business news, "The Latest High-Tech Legal Issue: Rooting Out the Spy in Your Computer" and "Rosie Issue Fades Away, Copyright Issue Rises." In regional news, "Stung by Suit, Greenwich Weighs Ban on Sledding." Editorials are entitled "'Enemy Combatants' in Court" and "A Rocky Reform." Columnist Bob Herbert has an op-ed entitled "Regressing on Integration." And Eric Schlosser has an op-ed entitled "Make Peace With Pot."

The Washington Post, in abortion-related news, contains articles headlined "Women's Rally Draws Vast Crowd; Marchers Champion Reproductive Rights, Opposition to Bush"; "Antiabortion Rally Confronts Huge March; Groups Trade Accusations, Insults Along Pennsylvania Avenue"; "Catholics Question Abortion Focus; Some Want Church to Address Issues Such as Death Penalty"; "For Some Believers, a Cause Across Generations; Throngs of Like-Minded Revel in Commonality"; "Body Politics: Today's Feminist, It Turns Out, Looks Like a Lot of People -- Maybe a Million"; and "A Mingling of Conviction and Capitalism." An article reports that "New Museum Revives Painful Memories for Internees; Japanese Americans Visit Site of Their Relocation in WWII." And in local news, "Craving a Taste of Their Heritage: African Americans Find Sense of Belonging in Semester at Howard" and "Victims' Groups Honor Prosecutors, Activist."

The Christian Science Monitor contains an article headlined "Pharmacists' moral beliefs vs. women's legal rights." In other news, "Racism flaring, Northwest fights back; The number of skinheads in the US has doubled in the past year." And an article reports that "Senate race highlights GOP divide; Pennsylvania's Specter this week faces a primary challenge from the right."

Online at OpinionJournal, John Fund has an essay entitled "Has He Snarled His Last? Arlen Specter's personality helps make him vulnerable in tomorrow's primary." And Julia Gorin has an essay entitled "These United States: Will same-sex marriage lead to incest and polygamy? Let's hope so!"
Posted at 06:30 by Howard Bashman



"Did Brown matter? On the fiftieth anniversary of the fabled desegregation case, not everyone is celebrating." Law Professor Cass R. Sunstein has this essay in the May 3, 2004 issue of The New Yorker.
Posted at 06:20 by Howard Bashman



Sunday, April 25, 2004
In today's issue of The San Francisco Chronicle: Today's newspaper contains articles headlined "The Peterson trial, false satanism and media madness" and "Selling sex like Tupperware; In-home Passion Parties help women discover the joy of sex toys."
Posted at 23:55 by Howard Bashman



"Judiciary faces fight for federal funding": This article appears today in The Pittsburgh Post-Gazette.
Posted at 23:50 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Supreme Court to Hear Calif. Appeal Case" and "Nichols' Defense Thrown Into Disarray."
Posted at 23:45 by Howard Bashman



In Sunday's newspapers: The New York Times reports that "Romney Won't Let Gay Outsiders Wed in Massachusetts." An article reports that "Privacy of Wife's Fortune Casts a Shadow Over Kerry." Adam Liptak has an article headlined "Forget Socrates" about the first graduates of an online law school. And William Saletan has an op-ed entitled "The Issue That Never Went Away."

The Washington Post reports that "Abortion Opponents Post Gains Since '95; Laws Have Limited Access to Procedure." In other news, "Joint Appearance Stirs Speculation; Some Say Bush, Cheney Want One Story." An article reports on "An Infusion of Religious Funds In Fla. Prisons; Church Outreach Seeks To Rehabilitate Inmates." And Christopher Hitchens reviews the book "Freethinkers: A History of American Secularism," by Susan Jacoby.

The Washington Times reports that "Oklahoma to vote on marriage amendment." In other news, "Group puffs against pot laws." And Thomas Sowell has an op-ed entitled "Criminalizing business: Part II."

The Boston Globe, in same-sex marriage-related news, contains articles headlined "Romney: gay outsiders can't marry in Mass." and "After May 17, marriage is no cake walk, gays are told." An article reports that "US to hold detainees at Guantanamo indefinitely." In other news, "Cheney aide now lobbyist on energy." In news from California, "Californians consider granting 14-year-olds the right to vote; Youth suffrage effort sweeps US" and "Laying down the copyright law -- to children; Film studios back antipiracy course." In local news, "US redistricting probe puts close Finneran ally in hot seat" and "Students set to join abortion-rights rally." And columnist Ellen Goodman has an op-ed entitled "Not just a march on Washington."

The Los Angeles Times reports that "Foreigners Fighting Orders to Leave U.S. May Face Jail; A pilot program requires detention for people appealing deportation rulings; It seeks to cut the number of scofflaws." An article reports that "Watts Raid Reveals Split; Efforts to combat human smuggling are hampered by conflicts between the LAPD and the U.S. immigration bureau, officials say." In other news, "Politics of Patriot Act Turn Right for Bush." An article is headlined "Neighbors divided: A religious land-use law designed to protect institutions fuels some zoning disputes." In other news, "Seeking Peace, and a Lawsuit; Michael Goodwin vows to sue over being held for years in the slaying of Mickey Thompson." And columnist Dana Parsons has an essay entitled "Our D.A. Had No Case, but Goodwin Sure Does."
Posted at 22:10 by Howard Bashman



"Jackson and His Legal Team Part Ways": This article will appear in Monday's issue of The New York Times.
Posted at 22:00 by Howard Bashman



"Extreme Niche Marketing": You can access here a very interesting profile of the law firm that produces "SCOTUSblog."
Posted at 20:55 by Howard Bashman



Trivia question answer: The one reader whom I would trust to know the answer to the trivia question that I asked here earlier today -- when was the last time that someone resigned from a life-tenured position on a U.S. Court of Appeals to serve as a judge or justice on a state court of last resort? -- emails:
I suspect the answer to your trivia question -- "when was the last time that someone resigned from a life-tenured position on a U.S. Court of Appeals to serve as a judge or justice on a state court of last resort?" -- appears in your remarks about Judge Hutchinson: Judge/Justice Charles A. Jones of the Third Circuit and Pennsylvania Supreme Court.

Also, I believe that the last person to resign from the U.S. Supreme Court to serve as a state jurist was the first Justice Rutledge, to become chief justice of the S.C. Court of Common Pleas.
My remarks before an en banc ceremonial session of the U.S. Court of Appeals for the Third Circuit on the occasion of Judge William D. Hutchinson's portrait presentation can be accessed here. The biography of Charles Alvin Jones can be accessed here. And the biography of John Rutledge can be accessed here.
Posted at 20:52 by Howard Bashman



From this evening's broadcast of NPR's "All Things Considered": This evening's broadcast contained segments entitled "Abortion Rights March Brings Thousands to Capital" and "Proposal to Leave Weddings to Churches" (Real Player required).
Posted at 20:45 by Howard Bashman



"Guantanamo: The 'Revolving Door' Sends Terrorists Back Out." Michael Isikoff has this "Periscope" item in the May 3, 2004 issue of Newsweek.
Posted at 15:11 by Howard Bashman



"McGreevey's pick for top court a passionate lawyer": This article appears today in The Star-Ledger of Newark, New Jersey. Toward its end, the article states: "The third time proved to be the charm for Rivera-Soto, though he was not the first choice. After Justice Peter Verniero announced he would resign at the end of the current court term, the governor's office approached U.S. District Court Judge Jose Linares and U.S. Appeals Court Judge Julio Fuentes, but neither was interested, according to numerous sources." That passage raises an interesting question -- when was the last time that someone resigned from a life-tenured position on a U.S. Court of Appeals to serve as a judge or justice on a state court of last resort?
Posted at 15:00 by Howard Bashman



"Top lawyer bypassed for Supreme Court; 'People should leave us alone -- the system works,' says the chairman of the Judicial Nominating Commission": The Providence Journal today contains an article that begins, "John A. 'Terry' MacFadyen III is considered one of Rhode Island's top appellate lawyers, yet this year, when he applied for Rhode Island's top appellate court, the Supreme Court, he didn't get an interview."
Posted at 14:24 by Howard Bashman



"Mexican truckers despair of being accepted in U.S." This article appears today in The Arizona Republic.
Posted at 14:22 by Howard Bashman



"Student newspapers test freedom of the press boundaries": The Pittsburgh Tribune-Review contains this article today.
Posted at 14:21 by Howard Bashman



"Keep your promise: It's time for the Florida Legislature to pass the bill that exempts juveniles from the death penalty." This editorial appears today in The St. Petersburg Times.
Posted at 14:20 by Howard Bashman



"Finally, Sharing Manzanar's Bitter Tale": The Los Angeles Times today contains an article that begins, "Hundreds of Japanese Americans who had been held in World War II internment camps gathered here Saturday for the first public look at an interpretive center that tells the bitter story of their imprisonment with stark pictures and blunt words." Yesterday was the opening of the Manzanar National Historic Site.

In other coverage, The Associated Press reports that "Museum Holds Japanese Internment Memories." The Contra Costa Times contains articles headlined "Memories live at Manzanar"; "Former Manzanar 'orphan' recalls feeling lonely, horrified"; "Ikeda's childhood in Manzanar informs belief in remembrance"; and "Switching from guarded prisoner to prison guard." Yesterday's issue of The Pasadena Star-News contained an article headlined "Images of internment: Man's father sneaked camera lens into camp at Manzanar." And on Friday, as I previously noted here, The Sacramento Bee contained an article headlined "Dark era remembered: 'It's important that we have a living history so people don't forget.'"
Posted at 12:10 by Howard Bashman



On this morning's broadcast of NPR's "Weekend Edition - Sunday": This morning's broadcast contained segments entitled "Brown v. Board: Disabled Children"; "Abortion Rights March Draws Thousands to Washington"; and "Catholics, Communion and Abortion" (Real Player required).
Posted at 11:45 by Howard Bashman



"Renewed Focus on Scalia Trip; Justice's 2002 ruling on redistricting cleared the way for hunting partner Rep. Charles W. 'Chip' Pickering to retain his seat in Congress": Richard A. Serrano and David G. Savage have this article in today's issue of The Los Angeles Times. And The St. Petersburg Times today contains an article headlined "Spirited Scalia not one to shy away: He's answered protesters with a 'quack,' loves to bum a smoke, and discusses cases while jogging; And he's not about to step down from the Cheney case."
Posted at 08:25 by Howard Bashman



"Natives not bound by laws of Canada, lawyer argues; An Ottawa lawyer is challenging the authority of Canadian governments to apply laws to native people": This article appears today in The Ottawa Citizen.
Posted at 08:15 by Howard Bashman



Saturday, April 24, 2004
"Public urination ban advances": The Honolulu Advertiser today contains an article that begins, "Downtown Honolulu would be the one place in the state where it would be illegal to urinate or defecate in public under a bill that advanced out of a House-Senate conference committee Thursday and will now come before both houses for final votes."
Posted at 23:40 by Howard Bashman



"Administration Says a 'Zone of Autonomy' Justifies Its Secrecy on Energy Task Force": In Sunday's edition of The New York Times, Linda Greenhouse will have an article that begins, "The Bush administration's effort before the Supreme Court to shield the names of private citizens who helped devise its energy policy might appear on the surface unrelated to its defense, in cases also before the court, of the detention of those the administration has classified as enemy combatants. But the legal arguments are strikingly similar, projecting a vision of presidential power in both war and peace as far-reaching as any the court has seen and posing important questions of the constitutional separation of powers."
Posted at 23:11 by Howard Bashman



"American Terror Suspect's Path From Streets to Pentagon Brig": This article will appear in Sunday's issue of The New York Times.
Posted at 23:00 by Howard Bashman



Elsewhere in Saturday's newspapers: The Boston Globe reports that "Romney chides Legislature on gay marriage." An article reports that "Senators urge inquiry into Army chaplain's case." And in other news, "Cardinal cautions Catholic politicians; Abortion view tied to Communion."

The Los Angeles Times contains an article headlined "Your Ad Here: Jockeys Go to Court; Riders file suit in an attempt to display advertising on pants at the Kentucky Derby." In abortion-related news, "Vatican Rules Out Liberalized Liturgy; A senior cardinal says politicians who support legal abortion must be denied Communion" and "Abortion Issue Pushes Kerry's Faith to Fore; A cardinal's stance against Communion for Catholic officials who back abortion rights sets off a political and religious furor." In regional news, "Court Orders Dismissal of Charges in Racer's Slaying; Appeals panel says O.C. has no jurisdiction in '88 killings of Mickey Thompson and his wife"; "Feeling Injured Workers' Pain; Lawyers are troubled by the recent overhaul that they say reduces choices, treatment and compensation for employees"; and "U.S. Bid to Deport Man Is Rejected; Action caps trial of Seal Beach bartender imprisoned in Northern Ireland killings." And letters to the editor appear under the heading "Trying to Reform Campaign Financing."

The Washington Times reports that "Pro-choice stance seen undeserving of sacrament." And Thomas Sowell has an op-ed entitled "Criminalizing business."
Posted at 22:33 by Howard Bashman



In news from Mississippi: The Clarion-Ledger today reports that "Randolph gets Supreme Court appointment." The Biloxi Sun Herald reports that "Randolph joins state high court." And The Hattiesburg American reports that "Randolph joins justices on high court; Justice announces election intentions."
Posted at 22:18 by Howard Bashman



"Cops may need parents at kids' interrogations": This article appears today in The Arizona Daily Star. And The Arizona Republic reports today that "Kids' interrogation rights unsettled." You can access yesterday's unanimous ruling of the Supreme Court of Arizona at this link.
Posted at 21:17 by Howard Bashman



"Ridgewood 1792 ordered off shelves; Brown-Forman wins much of trademark suit": The Courier-Journal of Louisville, Kentucky today contains this article.
Posted at 21:13 by Howard Bashman



"Tenants win chance to reargue case; Mobile home residents still fighting rent-increase ruling": This article appears today in The News Journal of Wilmington, Delaware.
Posted at 21:12 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "Politics Trumps Law in Cheney Dispute." And in other news, "Ohio State AD: Clarett not likely to return"; "Huge Abortion Rights Rally Planned in D.C."; "Roe V. Wade Attorney Hopes to Spread Word"; "Panel says PSU law school board may close meetings"; "Blocked Irish Deportation May Be Appealed"; and "Slain Porn Star Linked to 'Snuff' Film."
Posted at 21:08 by Howard Bashman



"Death Penalty Still Murky 9 Years Later": Sunday's edition of The New York Times will contain an article that begins, "Nine years after New York State enacted a capital punishment law on a wave of support that helped elect George E. Pataki governor, a series of technical rulings from the state's highest court have provided little guidance about whether the law can pass legal muster. There have been no executions since the law was enacted and there is no sign of one anytime soon."
Posted at 20:40 by Howard Bashman



"Sex offender's 3rd strike: He didn't register; Sacramento man with AIDS gets 27 years to life." Bob Egelko has this article in today's issue of The San Francisco Chronicle. You can access the ruling that the California Court of Appeal for the Third Appellate District issued on April 13, 2004 at this link.
Posted at 14:10 by Howard Bashman



"50 years of law on file at USD; Weekend activities to mark anniversary": This article appears today in The San Diego Union-Tribune.
Posted at 14:06 by Howard Bashman



"U.S. Focus: Justices Done? Supreme Court turnover likely; The next president may fill several vacancies, experts say." The Media General News Service provides this report.
Posted at 14:05 by Howard Bashman



"Inmate's execution postponed indefinitely": This article appears in The Cleveland Plain Dealer today.
Posted at 14:02 by Howard Bashman



"Sitting judge: Retired Utah chief justice finds his way as a Buddhist monk." The Deseret Morning News today contains this article.
Posted at 13:57 by Howard Bashman



U.S. Supreme Court Justice who often provides the crucial fifth vote in closely contested cases to have a windmill dedicated in her honor: This article appears today in The Indianapolis Star.
Posted at 13:55 by Howard Bashman



"Sex Videos on Pause, and Idled Actors Fret": The Style & Fashion section of Sunday's issue of The New York Times will contain this article.
Posted at 13:53 by Howard Bashman



"Trespass policy reaffirmed; The Virginia Supreme Court's ruling is a victory for people in public housing, officials say": The Richmond Times-Dispatch today contains an article that begins, "The Virginia Supreme Court yesterday reinstated the trespassing conviction of Kevin Lamont Hicks, a case that has hit every level of the court system in the past five years." You can access yesterday's ruling of the Supreme Court of Virginia at this link, and the U.S. Supreme Court's June 2003 ruling in the case can be accessed here.
Posted at 13:51 by Howard Bashman



"Abortion's Opponents Claim the Middle Ground": The Week in Review section of Sunday's issue of The New York Times will contain this article.
Posted at 13:21 by Howard Bashman



"$9 million awarded in State Farm case; Sum cut from $145 million in Utah battle dating to 1981": This article appears today in The Deseret Morning News. And The Salt Lake Tribune reports today that "State Farm ordered to pay $9M award." My earlier coverage of this news can be accessed here.
Posted at 13:18 by Howard Bashman



Ten Commandments news: Today's edition of The Lexington Herald-Leader reports that "'Commandments' judge in Boyle; At Foundations Festival, Alabama's Roy Moore says nation is forgetting 'sovereignty of God.'" And yesterday's edition of The Duluth Budgeteer News reported that "City attempts to settle Ten Commandments lawsuit."
Posted at 13:15 by Howard Bashman



"Abortion Rights Activists Demonstrate in D.C." This morning's broadcast of NPR's "Weekend Edition - Saturday" contained this report (Real Player required).
Posted at 13:05 by Howard Bashman



"Appeals judge describes changing church": Yesterday's issue of The Yale Daily News contained an article that begins, "Many people view the Catholic Church as dominated by unchanging tradition, but it is an institution willing to change, Judge John T. Noonan Jr. said."
Posted at 13:00 by Howard Bashman



"Hale jury goes home without a verdict; Deliberations will continue Monday": The Chicago Tribune today contains this article.
Posted at 08:20 by Howard Bashman



"Al-Hussayen case could hinge on established free speech laws; Or, it could break new ground using the Patriot Act as its foundation": This article appears today in The Idaho Statesman.
Posted at 08:16 by Howard Bashman



In Saturday's newspapers: The New York Times, in abortion-related coverage, contains articles headlined "For Abortion Rights Cause, a New Diversity" and "Vatican Cardinal Signals Backing for Sanctions on Kerry." In other news, "Jackson's Indictment Clouds Future Deals." An editorial is entitled "A Compromised Voting System." And Dorothy Samuels has an "Editorial Observer" column entitled "Golf Anyone? The Movable Feast Called 'Judicial Education.'"

The Washington Post reports that "Moussaoui Lawyers Heartened By Appeal Court's Reasoning; Defense May Seek Deposition of Additional Overseas Detainees." In other news, "Clarett Abandons Legal Challenges." An article is headlined "When Calls for Prayer Trample Personal Privacy; Disclosing Details of Members' Health Could Pose Legal Problem for Churches." In other news, "Translator's Lawyers Cite Contradictions; Detainee Letters' Status As Classified Is at Issue." In regional news, "Lawyer Pleads Guilty in Scheme to Obtain U.S. Visas"; "A Family's March to Redemption; 3 Generations Join Abortion Rights Rally in Honor of Woman Who Died"; and "Guilty Plea In 'Test' of Air Safety; Man Took Box Cutters On Flight From BWI." And an editorial is entitled "A Precarious Balance."
Posted at 08:00 by Howard Bashman



Friday, April 23, 2004
Elsewhere in Friday's newspapers: The Los Angeles Times reports that "Court Lets Moussaoui Prosecution Go Forward; Appeals panel rules that the Sept. 11 suspect can get a fair trial despite restrictions on access to other terrorism defendants held by U.S." In other news, "Justices Reject Clarett Appeal; He will not be eligible for this weekend's NFL draft; USC's Williams is affected too; Ginsburg cites promise of a special draft in her decision." An article reports that "Senate Passes Crime Victims' Bill; Measure ensures timely notification of key court hearings and release dates of defendants." In regional news, "Public Can't View Tape at Rape Trial; Citing the accuser's right to privacy in case against three teens, an O.C. judge denies a request by media outlets that the evidence be shown in open court"; "State Is Urged to Ban Vote Machine; Advisory panel targets a Diebold touch-screen model and recommends the firm be investigated"; "Court Urged to Keep Slots Off Ballot"; and "Going Online Tops Waiting in Line for Court Records; L.A. County Superior Court expands public access to save the system time and money." An article reports that "Bryant Team Seeks Data." Larry Flynt has an op-ed entitled "Porn World's Sky Isn't Falling -- It Doesn't Need a Condom Rule." And letters to the editor appear under the heading "Rights Wrongly Denied to Enemy Combatants."

In The Boston Globe, Lyle Denniston reports that "Appeals court rules US may try Moussaoui; OK's 9/11 suspect's bid for testimonies." And columnist Derrick Z. Jackson has an op-ed entitled "Hub of hypersegregation."

The Washington Times reports that "Pro-choice march comes amid wins by abortion foes." And in other news, "Senate affirms victims' rights."
Posted at 23:11 by Howard Bashman



In news from Guam: Saturday's issue of The Pacific Daily News contains articles headlined "Court may evict AG; Office given notice to pay rent or move out" and "Gutierrez, 3 former officials re-indicted."
Posted at 23:01 by Howard Bashman



Bob Egelko is reporting: In today's issue of The San Francisco Chronicle, he has articles headlined "Ban on Web material in prison mail tossed" and "City's lawyers answer court; State argues S.F. should refund marriage-license fees."
Posted at 22:57 by Howard Bashman



Available online from law.com: An article reports that "Vitamin Fight Could Energize Foreign Suits; Supreme Court takes up high-stakes price-fixing case." In other news, "N.Y. Court of Appeals to Hear Capital Case With Novel Issue." And in news from California, "Raunchy 'Friends' Meetings Lead to Sex Harass Claim."
Posted at 22:53 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Utah High Court Lowers State Farm Penalty"; "Peterson Defense to Seek New Venue, Again"; "Suit Filed Over Arrests After Elian Raid"; "Nichols Jurors Hear About Leg at Site"; and "S.C. Courthouse Named for Lawyer Perry."
Posted at 22:30 by Howard Bashman



"Hale jury finishes second day of deliberations with no verdict": The Associated Press provides this report from Chicago.
Posted at 20:57 by Howard Bashman



"Judge's job on line over ruling; Impeachment hearings under way, but vote postponed": The Rocky Mountain News today contains this article.
Posted at 17:18 by Howard Bashman



"Judge's new-trial order reversed; An appellate court overturns the tossing of convictions of two men in a pot case": This article appeared in yesterday's issue of The Sacramento Bee. You can access Wednesday's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link. Randy Barnett has more marijuana-related news from the Ninth Circuit at this link.
Posted at 17:14 by Howard Bashman



"Perry celebrants 'lift every voice' to civil rights icon": The State of South Carolina contains this article today.
Posted at 17:08 by Howard Bashman



"Three strikes insanity: Target repeat violent offenders, not thieves." This editorial appears today in The Sacramento Bee.
Posted at 17:03 by Howard Bashman



U.S. Court of Appeals for the Second Circuit rejects federal Voting Rights Act challenge to New York's felon disenfranchisement statute: You can access today's ruling, by a unanimous three-judge Second Circuit panel, at this link. The Second Circuit's ruling appears to be in conflict with decisions of the Ninth and Eleventh Circuits. The final sentence of today's opinion states: "Accordingly, all three judges on this panel believe that the issues presented in this case are significant and, in light of the differing perspectives among and within the courts of appeals, warrant definitive resolution by the United States Supreme Court."
Posted at 17:00 by Howard Bashman



The Web site "PoliticalMoneyLine" has posted online the 2002 financial disclosure forms of the U.S. Supreme Court's Justices: The forms can be accessed via this link.
Posted at 16:20 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Feds Stymie Suit Vs. Alleged Terrorists"; "Kerry Affirms Support for Abortion Rights"; and "Ala. Judge Accuses Prosecutor of Slander."
Posted at 16:15 by Howard Bashman



Access online today's unanimous ruling of the Supreme Court of Utah in Campbell v. State Farm Mut. Auto Ins. Co.: Today's opinion begins:
We take up this case after remand from the United States Supreme Court, which held that the imposition of a $145 million punitive damages award against State Farm Mutual Automobile Insurance Company in favor of State Farm's insured, Curtis B. Campbell, and his wife, Inez Preece Campbell, was excessive and violated the due process clause of the Fourteenth Amendment to the Constitution of the United States. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (Campbell II) (rev'g 2001 UT 89, 65 P.3d 1134 (Campbell I)). The Supreme Court directed us to recalculate the punitive damages award under principles articulated in its decision. We have performed this task and reduced the jury's award to $9,018,780.75 in punitive damages, a figure nine times the amount of compensatory and special damages awarded to the Campbells.
You can access today's complete ruling at this link. The U.S. Supreme Court's ruling, from April 2003, is accessible here.
Posted at 16:00 by Howard Bashman



"Giving Their Opinions: Committee Backs Rule Allowing Lawyers to Cite Unpublished Decisions." The ABA Journal eReport today contains this article.
Posted at 15:20 by Howard Bashman



Big verdicts, in the news: Dow Jones Newswires report that "Alabama Judge Overturns $1.28B Ruling Against Tyson Foods." And Tyson Foods, Inc. has issued a press release entitled "Jury Verdict Reversed in Alabama Case; Judge Strom Rules Tyson Did Not Violate the Law."

In unrelated news, I am advised that the Supreme Court of Utah has today issued its ruling in Campbell v. State Farm Mut. Auto Ins. Co., on remand from the U.S. Supreme Court's ruling in April 2003. Stay tuned for a link to that decision when it becomes available online.
Posted at 15:07 by Howard Bashman



U.S. Court of Appeals for the Federal Circuit holds that Seventh Circuit Judge Richard A. Posner, sitting by designation as a trial judge in a patent case, engaged in "erroneous claim construction": You can access today's Federal Circuit ruling at this link. Judge Posner's decision is available here. Judge Posner can still count today's result as an affirmance, albeit on other grounds.
Posted at 13:30 by Howard Bashman



"Larry Flynt defends the right to offend": This article appears today in The Lexington Herald-Leader.
Posted at 12:02 by Howard Bashman



"Dark era remembered: 'It's important that we have a living history so people don't forget.'" The Sacramento Bee today contains this article, which previews tomorrow's opening of the Manzanar National Historic Site.
Posted at 12:00 by Howard Bashman



"CUA law students working to establish GSA; Officials hint group is 'incompatible' with school’s mission": The Washington Blade today contains an article that begins, "A group of first-year students at the Catholic University of America's Columbus School of Law are challenging tradition. For the past two months, more than a dozen law students have been meeting in an attempt to form the first-ever gay-straight alliance at the law school. "
Posted at 11:24 by Howard Bashman



"Lights out for lighting up; Court upholds smoking ban": This article appears today in The Lexington Herald-Leader. A related article reports that "Ruling elicits praise, outrage." And The Courier-Journal of Louisville reports that "Lexington smoking ban stands; Court rules city can bar tobacco in public buildings."
Posted at 11:12 by Howard Bashman



"N.Y. Village Skips Pledge to Save Time": The AP reports here that "The Pledge of Allegiance wasn't too political. It didn't incite arguments over the separation of church and state. But it was too long."
Posted at 10:44 by Howard Bashman



"Benson says he'll veto raising death penalty age": The Associated Press reports here from New Hampshire that "The House voted Thursday to raise the minimum age for the death penalty from 17 to 18, but Gov. Craig Benson said he will veto the bill." And The Union Leader reports that "House raises minimum death penalty age to 18."
Posted at 10:40 by Howard Bashman



Unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit criticizes conduct of lawyers from Winston & Strawn and refers the matter to the Attorney Registration and Disciplinary Commission of Illinois: You can access yesterday's decision, written by Circuit Judge Frank H. Easterbrook, at this link. Judge Easterbrook writes: "Counsel's responsibility is to give good advice and, if unsuccessful in persuasion, to implement the client’s decisions, not to thwart or override them."
Posted at 10:09 by Howard Bashman



"Endless Filibuster: Would John Kerry's stance on judicial confirmations in the Senate come back to haunt his presidency?" Terry Eastland has this essay online today at The Weekly Standard.
Posted at 09:26 by Howard Bashman



"Complications Arise in Moussaoui Case": Nina Totenberg had this report (Real Player required) on today's broadcast of NPR's "Morning Edition."
Posted at 09:24 by Howard Bashman



"Two Cheers for the Ninth Circuit": RiShawn Biddle has this essay online today at The American Spectator.
Posted at 09:18 by Howard Bashman



"Man pleads not guilty to e-mail harassment": This article appears today in The Seattle Times. And The Seattle Post-Intelligencer today contains an article headlined "Court appearance in cyberstalking case."
Posted at 07:11 by Howard Bashman



"Justices reject landmark verdict; The state Supreme Court overturns a ruling that allowed parents of adults to sue for wrongful death": Today's issue of The Seattle Post-Intelligencer contains this article. You can access yesterday's ruling of the Washington State Supreme Court at this link (majority opinion) and at this link (dissenting opinion).
Posted at 07:05 by Howard Bashman



"Hale jury set to enter 2nd day of discussions": This article appears today in The Chicago Tribune.
Posted at 07:00 by Howard Bashman



"Trial's focus shifts to evidence against student": Today's edition of The Idaho Statesman contains an article that begins, "After two weeks of laying a foundation for their case, federal prosecutors said Thursday they are ready to present direct evidence next week that Sami Al-Hussayen used his computer and Internet skills to support international terrorism."
Posted at 06:57 by Howard Bashman



In Friday's newspapers: The New York Times reports that "Federal Appeals Court Restores Sept. 11 Prosecution." In other news, "Supreme Court Rejects Two Appeals by Clarett." An article reports that "Senate Votes to Grant Rights to Victims of Federal Crimes." In news from California, "Jackson's Lawyers Preparing to Challenge His Indictment." In local news, "U.S. Charges Defense Lawyer With Fraud and Obstruction." In business news, "PC Sales Aid Microsoft, but Legal Expenses Hurt Profits" and "A Shift in Testimony in Ex-Banker's Trial." And an article reports that "G.O.P. Senate Race in Pennsylvania Heats Up."

The Washington Post reports that "Terror Case Is Cleared For Trial; Moussaoui Can't Talk to Detainees, Appeals Court Says." In other news, "Supreme Court Turns Down Clarett; Former Buckeyes Star Seeks New Options as Hope for Draft Eligibility Fades." An article reports that "Senate Stresses Victims' Rights in Court; Legislation That Applies to Federal Crimes Is Approved by Vote of 96 to 1." In regional news, "Suit Seeks Paper Receipt for Md. Voters Using Screens" and "Long-Simmering Dispute Turns Deadly in Rural Va.; Feud Ends With Man Slain, Neighbor Charged." And in business news, "Asbestos Bill Stalls in Senate; Measure Would Create National Trust Fund for Victims" and "Suits Dilute Microsoft's Big Gains."
Posted at 06:30 by Howard Bashman



Thursday, April 22, 2004
Elsewhere in Thursday's newspapers: The Boston Globe, in same-sex marriage-related news, reports that "Law curbing out-of-state couples faces a challenge" and "City says gays have rights to stay married; Lawyer argues couples deserve due process." An article reports that "Supremacist case goes to jury." In local news, "Report to back death penalty; Panel seen finding flaws are fixable" and "SJC rejects lawsuit opposing building of new Logan runway." In news from Florida, "Opera-fan judge makes guilty face the music; Noise violators earful in Miami Beach." An article reports that "Calif. takes 2d look at high-tech voting." And an editorial is entitled "Detainees' rights."

The Los Angeles Times reports that "Clarett's Appeal Seeks Quick Reversal of Ruling." In celebrity justice-related news, "Jackson Indicted by Grand Jury; The singer has been accused in the molestation of a 12-year-old boy; He will plead not guilty, his legal team says in a statement" and "Bryant Lawyers Denied Records; Judge rules the accuser did not agree to disclose information on two alleged suicide attempts; Witnesses could still testify on the issue." In regional news, "Man Falsely Imprisoned for 24 Years Seeks Damages; Thomas Lee Goldstein files claims that allege misconduct by police and prosecutors"; "Pot Group Wins Legal Round; In rebuff to the Bush administration, a judge lifts a ban on the growing of medical cannabis by a collective, pending trial"; and "Man Held in Agent's Death to Be Released; Authorities admit arrest this month of a South L.A. auto mechanic in the '85 slaying was a case of mistaken identity." An article reports that "Groups to Gather for Abortion Rights Rally; The protest is an effort to counter the successes by foes at both state and federal levels." An editorial is entitled "Don't Stiff Asbestos Victims." And letters to the editor appear under the headings "When Keeping Secrets Protects Mendacity" and "The Disease Threat Among Porn Actors."

A front page article in USA Today reports that "Accused terrorists face different kind of justice; Pentagon's tribunals will tip the scales slightly against suspects to try to protect national security." An article reports that "Michael Jackson indicted by grand jury." In other news, "Judge keeps Bryant accuser's medical records sealed." And an editorial is entitled "Clarett vs. Football U."
Posted at 23:40 by Howard Bashman



From this evening's broadcast of NPR's "All Things Considered": In addition to the segment that I earlier noted here, this evening's broadcast also included segments entitled "Amish Man Loses Emergency Appeal to Stay in U.S." and "FBI Targets 'Warez' Computer Piracy" (Real Player required).
Posted at 23:08 by Howard Bashman



Attorney General's Office in Guam faces eviction for non-payment of rent: Friday's edition of The Pacific Daily News contains this report.
Posted at 23:05 by Howard Bashman



In today's issue of The Harvard Law Record: An article reports that "Law Review book note attacked; University of Texas professor calls note authored by Harvard 2L 'scholarly fraud.'" In other news, "HLS to lose three assistant profs," at least one of whom is quite a fan of this blog. And Clinton Dick reports that "Law Review symposium examines legacy of Brown."
Posted at 22:54 by Howard Bashman



In today's issue of The Yale Daily News: An article reports that "Clerkship has perks for new law grads." And Ravi Agarwal has an op-ed entitled "Judicial appointments are threat to civil rights."
Posted at 22:49 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Justice Ginsburg Reflects on Own Heritage"; "U.S. Court Refuses Amish Man's Appeal"; "Appeals Court: NLRB Only Covers U.S."; "Louisiana Supreme Court Removes Judge"; "Judge Seals Letter in Scott Peterson Case"; "Nichols Jurors Hear Tape of Explosion"; "Justice Dept. Cracks Down on Net Piracy"; and "Gay Lovers Climb Tree, Then Have Sex."
Posted at 22:45 by Howard Bashman



"Waist case: Staking out the high moral ground, a bill would punish those wearing low-riding jeans." This article appears today in The Times-Picayune. (Via "Obscure Store.")
Posted at 22:38 by Howard Bashman



Madison, Wisconsin-based newspaper opposes Ninth Circuit nominee William Gerry Myers III: The Capital Times today contains an editorial entitled "A judicial failure to cooperate."
Posted at 22:30 by Howard Bashman



Available online from law.com: An article reports that "Florida Town Can't Restrict Location of Houses of Worship." In other news, "Preoccupied Boss or Prickly Liar? California's State Bar Court mulls contempt charges for no-show attorney Raul Aguilar." And an article reports that "Online 'Blacklisting' Draws Ire; Is use of Web court data an unfair black mark or a good way to reduce risk?"
Posted at 22:27 by Howard Bashman



Electronic voting machines from Diebold Election Systems are the subject of a lawsuit in Maryland and may be decertified in California: The Baltimore Sun today reports that "Lawsuit challenges Md. voting machines; Truevotemd.org says new electronic system fails to meet state law; Paper trail sought for ballots." Via FindLaw, you can access a copy of the plaintiffs' complaint at this link. And The Associated Press reports that "Calif. Moves to Block Diebold's E-Voting Machines." FindLaw offers here a copy of the relevant minutes of the California Voting Systems and Procedures Panel.
Posted at 22:10 by Howard Bashman



"Court Allows Govt. to Try Moussaoui Again": The Washington Post provides this news update. And Reuters reports that "US Court Rules Case Against Moussaoui Can Proceed."
Posted at 21:00 by Howard Bashman



Divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issues its ruling in the Zacarias Moussaoui case: You can access the ruling, issued late today, at this link. In early news coverage, The Associated Press reports that "Appeals court orders Moussaoui case to continue, lifts ban on Sept. 11 evidence." And NPR's Nina Totenberg, on this evening's broadcast of "All Things Considered," had a report entitled "Appeals Court Orders Moussaoui Case to Proceed" (Real Player required).
Posted at 19:00 by Howard Bashman



"Asbestos cloture vote fails": The Hill provides this news update. And Reuters reports that "Senate Halts Bill to Create Asbestos Fund."
Posted at 18:01 by Howard Bashman



"Committee wants lawyers to clean up their act": This article appears today in The Chicago Sun-Times.
Posted at 17:56 by Howard Bashman



"Future remains uncertain for Kennewick Man": The University of Washington Daily contains this report.
Posted at 17:54 by Howard Bashman



"Scalia's acts insult the Constitution he praises": Charlie Mitchell, managing editor of The Vicksburg Post, today has this op-ed in The Biloxi Sun Herald.
Posted at 17:52 by Howard Bashman



"Judge urged to clamp down on Skilling after 'irrational' behavior": Mary Flood has this article in today's issue of The Houston Chronicle.
Posted at 17:50 by Howard Bashman



"Justices hear case on land seizure; Property near Metro could change standard": This article appears today in The Detroit Free Press.
Posted at 17:48 by Howard Bashman



"Supreme Court Denies Stay in Clarett Case": Gina Holland of The Associated Press provides this report, which notes that "Clarett immediately filed a new emergency appeal with another justice."
Posted at 17:13 by Howard Bashman



"Jury gets Matt Hale case": The Chicago Tribune provides a news update that begins, "Jurors began deliberating Thursday in the trial of white supremacist leader Matthew Hale, a 32-year-old who preached 'racial holy war' and is charged with soliciting the murder of a federal judge who had ordered him to stop using the name World Church of the Creator"
Posted at 16:34 by Howard Bashman



"Court commutes retarded killer's death sentence; 1st such ruling by appeals panel": The Houston Chronicle today contains an article that begins, "The Texas Court of Criminal Appeals, for the first time in its history, commuted the death penalty of a murderer Wednesday because he is mentally retarded." You can access yesterday's decision of the Court of Criminal Appeals of Texas, that State's highest court in criminal cases, here (majority opinion) and here (dissenting opinion).
Posted at 16:18 by Howard Bashman



"Bill would require wait period for women seeking abortions": This article appears today in The Tennessean.
Posted at 16:15 by Howard Bashman



Superior Court of Pennsylvania rejects argument that rule prohibiting citation to that court's unpublished opinions violates Pennsylvania's Constitution: You can access today's ruling at this link.
Posted at 15:47 by Howard Bashman



"C.A. Limits 'Creative Necessity' Defense in 'Friends' Harassment Case": Today's issue of The Metropolitan News-Enterprise contains this report on a ruling that the California Court of Appeal for the Second Appellate District, Division Seven, issued yesterday in a lawsuit in which the plaintiff claimed that she was subjected to unlawful harassment while working on the television show "Friends." The opinion begins, "Defendants, producers and writers of a popular television show raise a unique defense to plaintiff's claim of sexual harassment. Defendants admit the use of sexually coarse, vulgar and demeaning language in the workplace but maintain such language was essential to the creative process of developing scripts for the show."
Posted at 15:39 by Howard Bashman



U.S. Supreme Court turns down Maurice Clarett's request to join NFL draft: Details to follow. Update: Here's an early report from The Associated Press. Second update: Here's a more detailed report from The AP.
Posted at 14:38 by Howard Bashman



Yesterday evening, Ninth Circuit Judges Stephen Reinhardt and Alex Kozinski debated at Stanford Law School: The author of the blog "Skydiver Salad" was present and provides this incredibly detailed report. Judge Reinhardt's "20 questions for the appellate judge" interview was even mentioned during the debate.
Posted at 14:20 by Howard Bashman



The Cleveland Plain Dealer is reporting: Today's issue of that newspaper contains articles headlined "Lawyer tackles state rules restricting ads" and "Church sues Euclid over zoning code."
Posted at 11:56 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": Today's broadcast included segments entitled "Chief Guantanamo Prosecutor Departs"; "Broadcasters, Free Speech Advocates Challenge FCC Ruling"; and "Judge in Rite Aid Case Rejects Plea Deal" (Real Player required).
Posted at 11:44 by Howard Bashman



"Vibrating Hardware Wars": This article appears in the current issue of The Austin Chronicle. Two weeks ago, I linked here to an article headlined "Oral Argument: The duel of the tongue vibrators" published in the Houston Press.
Posted at 11:11 by Howard Bashman



"Kentucky Supreme Court upholds Lexington smoking ban": The Associated Press provides this report. You can access today's ruling of the Supreme Court of Kentucky at this link.
Posted at 10:43 by Howard Bashman



"Bush Wants U.S. Roads Opened to Mexican Trucks, Buses; The high court is urged to lift an order keeping the older, diesel-burning vehicles near the border": David G. Savage has this report in today's issue of The Los Angeles Times. The San Francisco Chronicle reports that "High court takes up allowing Mexican trucks on U.S. roads." The Arizona Republic reports that "Feds ask Supreme Court to lift Mexican truck ban." The Dallas Morning News reports that "Detour for truck plan argued; Group wants Mexican carriers stalled to allow environmental study." The San Diego Union-Tribune reports that "High court considers Mexican trucking." And The Desert Sun of Palm Springs, California reports that "Justices debate Mexican truck case."
Posted at 10:30 by Howard Bashman



Ten Commandments news: From Kentucky, yesterday The Maysville Ledger Independent contained an article headlined "Shrugging off warnings, Fleming officials move to place Ten commandments in courthouse."

And from Pennsylvania, last week The Evening Sun of York reported that "Hanover takes steps to sell plot where religious plaque stands; Petition filed in York County Orphans Court Friday."
Posted at 09:44 by Howard Bashman



On the agenda: The Senate Judiciary Committee is scheduled to hold an executive business meeting today at 11 a.m. The only nominee to a U.S. Court of Appeals likely to be voted on at the meeting is Eighth Circuit nominee William Duane Benton, who currently serves as a judge on the Supreme Court of Missouri. One of Judge Benton's colleagues on that court will be the May 2004 interviewee in this blog's "20 questions for the appellate judge" feature.
Posted at 09:00 by Howard Bashman



"Hale jury to start deliberations; Supremacist set up, defense argues": The Chicago Tribune today contains this article. And The Chicago Sun-Times reports that "Hale murder solicitation case goes to jury today."
Posted at 07:10 by Howard Bashman



"Jurors get insight into Islamic teachings, history; Expert: Key is being peaceful and submitting to God." This article appears today in The Idaho Statesman.
Posted at 07:07 by Howard Bashman



In Thursday's newspapers: The New York Times reports that "Nominee to New Jersey Court Received 8 Speeding Tickets." In other news, "Amish Man's U.S. Stay Hangs on a Photo." An article reports that "Fund for Asbestos Victims Seems Headed for Setback." In other news, "Michael Jackson Is Indicted on Child-Molesting Charges." An article reports that "Judge Limits Access to Medical Records of Bryant's Accuser." In regional news, "Judge Agrees to Defense Request on Instructions to Williams Jury"; "Panel Toughening Stance on Impeachment Delays"; and "Arts Patron of Rare Violins Vanishes for His Arraignment." In business news, "Microsoft Agrees to Extend Time Limit in Licensing Deal." An article reports that "Officers Get List of Names of Actors in Sex Films." And an editorial is entitled "An Indecent Crackdown."

The Washington Post reports that "Emergency Hearing Possible for Clarett." In other news, "Court Halts Yosemite Park Plans; Ruling Concludes Renovation Projects Could Harm Valley." In celebrity justice-related news, "Michael Jackson Indicted; Grand Jury Sends Up Child Molestation Charges"; "Bryant Loses Bid for Alleged Victim's Medical Files; Colo. Judge Upholds Confidentiality Rule"; and "Skilling Broke Bond Terms, Prosecutors Say." In business news, "Judge Rejects Prison Deal for Former Rite Aid CEO; Probation Officers Recommend Glass Should Serve 9 to 10 Years, Not Just 8"; "Microsoft Ruling Cites 'Pattern of Conduct'; No Apologies in Text Of EU's Decision"; and "Human Rights Charges Still Gnaw at Coca-Cola; Protesters Convene at Stockholders Meeting." An article reports that "Women's Marchers, City Gear Up for Mega-Rally." And an article is headlined "Family Values: Randall Terry Fights Gay Unions; His Son No Longer Will."

The Christian Science Monitor contains an article headlined "Global campaign to police child sex tourism." And Alea Woodlee has an op-ed entitled "Broadening the meaning of pro-choice."
Posted at 06:40 by Howard Bashman



Wednesday, April 21, 2004
Elsewhere in Wednesday's newspapers: The Los Angeles Times reports that "Clarett Appeals Draft Ruling to U.S. Justices; Request to lift a stay and let him in this weekend's NFL event is seen as longshot; Williams affected too." In same-sex marriage-related news, "Oregon Judge Puts Hold on More Gay Marriages; The legislature is given a time limit to come up with an alternative, or the weddings resume; Licenses already issued remain valid" and "Legislators Support Same-Sex Marriage; Assembly panel OKs bill to grant full rights to gay couples, but it is unlikely to become law." An article reports that "Court Halts Yosemite Projects; The 9th Circuit blocks construction pending a revised Merced River management plan." In local news, "Court Order Delays Mahony Deposition; A judge's ruling halts proceedings in sex abuse case; Lawyers were also worried about security." An editorial is entitled "Government's Ugly Secret." And letters to the editor appear under the heading "A National Security Precedent Based on Lies."

The Boston Globe reports that "Court is told of chaos on marriage; Foes ask SJC justice to delay gay weddings."

Finally for now, The Washington Times reports that "Gay 'marriage' licenses halted." And in other news, "Bush decries bail for terror suspects."
Posted at 23:31 by Howard Bashman



"3 of 13 charges against Gutierrez dismissed": Thursday's issue of The Pacific Daily News of Guam contains this article.
Posted at 23:28 by Howard Bashman



"Key question for the US Supreme Court": This article appears in Thursday's edition of The Telegraph (UK). And Newsweek online offers an article headlined "Blaming Saddam: How the Pentagon considered extending its controversial 'enemy combatant' label in a bid to prove links between Iraq and Al Qaeda."
Posted at 23:17 by Howard Bashman



"Supreme Court candidates trade jabs": The Clarksburg Exponent Telegram of West Virginia today contains this article.
Posted at 23:15 by Howard Bashman



"A Call to Arms by Abortion Rights Groups": This article will appear in Thursday's issue of The New York Times.
Posted at 23:02 by Howard Bashman



Michael Newdow today debated Jay Sekulow at the University of Chicago School of Law: Will Baude was there and provides this account.
Posted at 22:55 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Fed Judges: NYC Abortion Lists Unneeded"; "Texas Court Overturns Two Death Sentences"; "Judge Pulls Feds Off Medical Pot Group"; "Man Files Claim in Wrongful Conviction"; "Amish Request to Stay in U.S. Denied"; and "Overseas Porn Movies Risk Stars' Health."
Posted at 22:45 by Howard Bashman



From this evening's broadcast of NPR's "All Things Considered": The program contained segments entitled "Judge Won't Dismiss Nichols State Case"; "Judges Chosen for Saddam Trial"; and "Merrill Lynch Ordered to Pay Millions."
Posted at 22:32 by Howard Bashman



Available online from law.com: In news from New York, "Cited Over Abortion Data, Hospital Appeals Quickly; Government wants patient records for trial." And Shannon P. Duffy reports that "Linerboard Suit Brings $202M in Settlements."
Posted at 22:28 by Howard Bashman



"Jackson indicted on child abuse charge": CNN.com provides this report.
Posted at 22:15 by Howard Bashman



"Bryant's defense can't use accuser's medical records, judge rules": This article will appear tomorrow in The Denver Post. Today's ruling is available at this link.
Posted at 21:19 by Howard Bashman



U.S. Court of Appeals for the Sixth Circuit again rules against naked former news anchor: You can access today's order at this link. And the Web site that seeks to display images of the naked former news anchor has issued this press release. Thanks much to the reader who drew this development to my attention. News of the Sixth Circuit's earlier involvement in this matter can be accessed via this link.
Posted at 18:00 by Howard Bashman



"Boise terror case tests Patriot Act's reach; A Saudi doctoral candidate helped create and support Islamic websites; Was it innocent help or 'expert' support of terror?" This article will appear in Thursday's issue of The Christian Science Monitor.
Posted at 17:58 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "Leahy Dubious About Ethics Code Change." And in other news, "Ginsburg Asks NFL to Address Clarett Case"; "Senate to Move Ahead on Victims' Rights"; "Seton Hall Criticized for Honoring Judge"; and "Pa. Congressman May Knock Out Specter."
Posted at 17:44 by Howard Bashman



Other coverage of yesterday's U.S. Supreme Court oral argument in the Guantanamo detainees case: In The Los Angeles Times, David G. Savage reports that "High Court Hears Case on Detainees; A majority of the Supreme Court appears doubtful of Bush's claim of absolute control over the 600 detainees at Guantanamo Bay." In USA Today, Joan Biskupic reports that "Justices question wartime powers; Cuba detainees seek access to U.S. courts," and a related article is headlined "Screening of detainees key issue; Some suspects insist they're civilians caught in U.S. dragnet." The Boston Globe reports that "High court weighs jurisdiction in Guantanamo detainee cases." The Chicago Tribune reports that "High court weighs Guantanamo case; Detainees held in legal limbo." The Pittsburgh Post-Gazette reports that "Supreme Court justices open to challenge on Guantanamo detainees." The Washington Times reports that "Guantanamo Bay prison decried before high court." And The Toronto Star reports that "Guantanamo policy on trial; Lawyers question U.S. right to detain prisoners; In re-election year, stakes extremely high for Bush."
Posted at 17:41 by Howard Bashman



"Court Urged to Lift Ban on Mexican Trucks": The Los Angeles Times offers this news update from David G. Savage.
Posted at 17:32 by Howard Bashman



In news from Delaware: The News Journal of Wilmington today reports that "Capano may rethink pressing claims; Hearing would put lawyers on the stand." And yesterday's newspaper reported that "Steele chosen for chief justice; Minner's pick for high court requires Senate confirmation."
Posted at 17:28 by Howard Bashman



The Seattle Times is reporting: Today's newspaper contains articles headlined "Group asks high court to reverse JOA ruling" and "Gregoire seeks halt to release of lawsuit documents."
Posted at 17:23 by Howard Bashman



In news pertaining to the Supreme Court of New Jersey: The Philadelphia Inquirer today reports that "Casino lawyer nominated for Supreme Court; Roberto Rivera-Soto would be N.J.'s first Hispanic justice; The governor's selection was unexpected." And The Star-Ledger of Newark, New Jersey contains articles headlined "Governor taps Hispanic for highest court; Ex-U.S. attorney and casino lawyer would fill gap when Verniero leaves" and "Nominee's DMV woes."
Posted at 17:20 by Howard Bashman



"Supreme Court Considers Mexican Trucks": Gina Holland of The Associated Press provides this report on one of the cases argued today at the U.S. Supreme Court.
Posted at 16:24 by Howard Bashman



"'Unfit to Judge': Hearing and Post-Hearing Record Reinforces the Case Against the Confirmation of William G. Myers III." Yesterday, Earthjustice, People For the American Way, and Community Rights Counsel jointly issued this report concerning Ninth Circuit nominee William Gerry Myers III.
Posted at 16:17 by Howard Bashman



Available online from The Weekly Standard: In last week's issue, Judge Michael Chertoff of the U.S. Court of Appeals for the Third Circuit had an essay entitled "Justice Denied: The International Criminal Court is even worse than its critics have said." And the current issue of that magazine contains an article headlined "A Challenger Haunts Specter: Why is the Bush administration opposing a conservative in Pennsylvania?"
Posted at 16:10 by Howard Bashman



U.S. Court of Appeals for the Eleventh Circuit rules that Religious Land Use and Institutionalized Persons Act of 2000 is a constitutional exercise of Congress's authority under the First, Tenth, and Fourteenth Amendments: A unanimous three-judge panel issued today's ruling in a zoning dispute involving houses of worship. You can access the text of the statute at this link, and much more information about litigation arising under RLUIPA is available here.
Posted at 14:45 by Howard Bashman



"The Hidden Supreme Court": Nat Hentoff has this essay in The Village Voice.
Posted at 14:08 by Howard Bashman



"Fight for abortion amendment ends; Lawmakers still trying to write limits into state law": This article appears today in The Tennessean.
Posted at 14:00 by Howard Bashman



"Supreme Court Upholds Credit Card Fee Regulation": Reuters provides this report. And The Associated Press reports that "Supreme Court Rules on Credit Card Fees."
Posted at 12:10 by Howard Bashman



"BYU law prof takes Justice post": The Salt Lake Tribune today contains an article that begins, "Thomas Lee is following his father's path to Washington, D.C. Lee, the son of the late Rex E. Lee, was named Monday to the U.S. Department of Justice's civil division, representing the Bush administration. Rex Lee served in that federal division in the 1970s, before being named U.S. solicitor general."
Posted at 12:00 by Howard Bashman



From today's broadcast of NPR's "Morning Edition": Nina Totenberg reports that "Justices Hear Arguments in Guantanamo Detainees Case." And a report is entitled "Judge Halts Oregon Gay Marriage." Real Player is required for these audio segments.
Posted at 11:58 by Howard Bashman



Law Professor Ann Althouse shares her views on yesterday's U.S. Supreme Court oral argument in the Guantanamo detainees case: Click here to be whisked away to the "Althouse" blog.
Posted at 11:24 by Howard Bashman



Senator John Edwards (D-NC) is on the verge of taking three years to decide whether to return a positive "Blue Slip" for a nominee to the U.S. Court of Appeals for the Fourth Circuit: On May 9, 2001, President Bush announced eleven nominees to the U.S. Courts of Appeals. One of those nominees was Terrence W. Boyle (bio available here), who currently serves as Chief Judge of the U.S. District Court for the Eastern District of North Carolina. Bush nominated Boyle to serve on the U.S. Court of Appeals for the Fourth Circuit. Nearly three years later, this nominee hasn't even had a Senate Judiciary Committee hearing because Senator Edwards is still making up his mind whether to consent to or oppose the nomination. Today's edition of The News & Observer of Raleigh, North Carolina contains a profile of Chief Judge Boyle headlined "Jurist known for independence."
Posted at 10:40 by Howard Bashman



The U.S. Supreme Court has issued one opinion in an argued case today: The Court today issued its ruling in Household Credit Services, Inc. v. Pfennig, No. 02-857. Justice Clarence Thomas wrote the opinion for a unanimous Court, and the judgment under review was reversed. You can access the syllabus here, the opinion of the Court here, and the oral argument transcript here.
Posted at 10:00 by Howard Bashman



"Seton Hall regrets conferring award to judge; Myers says university honors to abortion-rights backers won't happen again": The Star-Ledger of Newark, New Jersey today contains an article that begins, "Under heavy criticism from anti-abortion advocates, Seton Hall University acknowledged yesterday that as a Catholic institution it should not have conducted an awards ceremony last week involving two judges whose decisions have supported abortion rights. On Friday, U.S. 3rd Circuit Court of Appeals Judge Maryanne Trump Barry received the Sandra Day O'Connor Medal of Honor, an award sponsored by three student groups at Seton Hall University School of Law. O'Connor, the first female U.S. Supreme Court justice, was there to present the award."
Posted at 09:50 by Howard Bashman



On the agenda: The Supreme Court of the United States, at 10 a.m. today, is scheduled to issue one or more opinions in argued cases.
Posted at 09:45 by Howard Bashman



Chances are that the doo-dah man won't be mentioned in this morning's U.S. Supreme Court oral argument: Today's issue of The Desert Sun reports that "Trucks get day in court; Treaty power collides with clean air rules before justices today." The Houston Chronicle reports that "High court to weigh arrival of Mexican trucks." The San Antonio Express-News reports that "NAFTA truck case goes to high court." And on today's broadcast of NPR's "Morning Edition," Nina Totenberg had a report entitled "High Court to Hear Case on Mexican Truck Access to U.S." (Real Player required).
Posted at 09:40 by Howard Bashman



"Abortion Trial Terms Become Battleground": David Kravets of The Associated Press provides this report.
Posted at 09:17 by Howard Bashman



Available online from law.com: In news from California, "Pursue a Bad Case, Risk Getting Sued for Malicious Prosecution." An article reports that "N.Y. Appellate Court Holds Law Against Unwanted Faxes Constitutional." And in other news, "'U.S. News' Law School Rankings Are Annual Love/Hate Affair; Magazine's listing elicits praise, grief from campuses."
Posted at 09:08 by Howard Bashman



Thanks so very much to everyone who took the time yesterday to note this Web log's new address: Among the blogs that mentioned yesterday's relocation of "How Appealing" were "InstaPundit"; "The Volokh Conspiracy"; "TalkLeft"; "Pejmanesque"; "The Buck Stops Here"; "Intel Dump"; "That's News To Me"; "Jack Bog's Blog"; and "Demagogue."
Posted at 09:00 by Howard Bashman



"Gay marriages halted in Multnomah; A judge also rules that licenses issued to gay couples must remain valid": The Statesman Journal of Salem, Oregon today contains this report. The Oregonian today contains articles headlined "Ruling pleases all for now" and "Talk of gay marriage could quiet special session aimed at tax reform" plus an editorial entitled "Judge calls a gay-wedding timeout; County Judge Frank Bearden's ruling seeks to advance both constitutional rights and public consensus." And Bob Egelko of The San Francisco Chronicle reports that "Judge halts same-sex marriages in Oregon; But he orders state to validate 3,000 licenses already issued." You can access yesterday's ruling both here and here.
Posted at 08:45 by Howard Bashman



"VeriSign settles Sex.com lawsuit; Domain name owner may get $15 million": This article appears today in The San Jose Mercury News. The Los Angeles Times today reports that "VeriSign to Settle Lawsuit Over Sex.com." And Slashdot provides this discussion thread. I provided additional links to coverage of the settlement early this morning in a post you can access here.
Posted at 08:32 by Howard Bashman



"Hale defense rests after calling no witnesses": The Chicago Sun-Times today contains this report.
Posted at 07:35 by Howard Bashman



"Attorney defends 2 days of testimony; She says details are needed for Al-Hussayen trial": This article appears today in The Idaho Statesman.
Posted at 07:09 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Appeals Court Blocks Yosemite Valley Plan" (and you can access yesterday's decision of the U.S. Court of Appeals for the Ninth Circuit at this link); "Lawyer May Represent Self at Terror Trial"; "Witness: Nichols Stole to Pull Off Bombing"; "Inmate claims female prisoners lack access to kosher meals"; and "California Urged to Probe Porn HIV Cases."
Posted at 07:08 by Howard Bashman



In Wednesday's newspapers: In The Washington Post, Charles Lane reports that "High Court Hears Detention Cases; Policy on Terror Suspects Challenged." In other news, "Supreme Court Is Next for Clarett; Attorneys File Emergency Appeal Of Draft Decision." An article reports that "FCC Calls Truce With NextWave; Telecom Will Keep Some Of Wireless Licenses." In other news, "Activist Convicted Of Disrupting Senate Committee." And an editorial is entitled "Wrong on Rights."

The New York Times reports that "Clarett Turns to Supreme Court for Help." An article reports that "Massachusetts' Highest Court Is Asked to Delay Gay Marriage." In business news, "NextWave Pact With F.C.C. Ends Airwave Dispute" and "Merrill Lynch Ordered to Pay for Sexual Bias." In news from New Jersey, "Casino Lawyer Is Nominated to Top Court" and "In Last Day of Testimony, Expert Criticizes Inspection of Williams's Shotgun." In news from Florida, "Parents Agree to Cooperate in Fatal Accident." An article reports that "Cheney Addresses Anti-Abortion Group." In news pertaining to North Carolina, "Judge Blocks Navy's Plan for Airfield Near Flyway." And editorials are entitled "Politics and the Patriot Act" and "The Asbestos Challenge."

Finally for now, The Christian Science Monitor contains an op-ed by Frederick Clarkson entitled "On Ten Commandments bill, Christian Right has it wrong."
Posted at 06:30 by Howard Bashman



Senate Judiciary Committee schedules confirmation hearing for D.C. Circuit nominee Brett M. Kavanaugh: Notice of the hearing is accessible here. At one point the notice states that the hearing will occur on "Wednesday, April 27, 2004, at 10:00 a.m." Only time will tell whether the choice of a day of the week that does not correlate to the date will suffice to fake-out Kavanaugh's opponents. Thanks to "Southern Appeal" for the pointer.
Posted at 06:20 by Howard Bashman



Dot-settled: c|net News.Com reports that "Sex.com, VeriSign settle domain name suit." Wired News reports that "Sex.com Settles With VeriSign." And Sex.Com issued a press release entitled "Sex.Com Settles Monumental Case Against VeriSign/Network Solutions." My coverage of the rulings that the U.S. Court of Appeals for the Ninth Circuit issued in this matter last year can be accessed here, here, here, and here.
Posted at 00:45 by Howard Bashman



Tuesday, April 20, 2004
"U.S. high court weighs dispute between Intel, AMD": Reuters provides this report on the other case argued today at the U.S. Supreme Court.
Posted at 23:36 by Howard Bashman



In Tuesday's newspapers: The New York Times reports that "Court Bars Clarett From Draft for Now." A related article is headlined "Another Suit Against the N.F.L." In other sports-related news, "Williams Manslaughter Trial Resumes After Dispute on Gun." A profile of Elouise Cobell is headlined "One Banker's Fight for a Half-Million Indians." In business news, "Preliminary Settlement Reached in Microsoft Case"; "Media Groups Ask F.C.C. to Reconsider NBC Ruling"; "2 Law Firms Plan to Merge, Creating One of Global Size"; and "Adelphia Misled Moody's, Ex-Official Says." A report from California is headlined "Taking the Laws Into Their Own Hands." And in regional news, "9/11 Suits Reveal Law Allowing Benefits to an Absentee Parent"; "Victims Lose Court Round on Nazi Claim"; "Committee Demands Rowlands' Full Finances"; and "Case Drags On, and Everyone Has a Message."

The Washington Post reports that "High Court Upholds Texas Redistricting." In other news, "Appeals Court Issues Stay; Decision Keeps Clarett, Williams Out of NFL Draft for Now." An article reports that "Md. High Court to Weigh Curb on Easing Sentences." In business news, "TV, Radio Groups Want FCC Ruling Reversed; Indecency Decision Unconstitutional, They Say" and "Proposed Asbestos Fund Divides Victims; Compensation Plan Bypasses Courts." An article reports that "President Campaigns to Make Patriot Act Permanent." Editorials are entitled "Supreme Apology" and "Mr. Ashcroft's Smear." And a letter to the editor appears under the heading "A Notes Ban Without Notable Sense."

The Washington Times reports that "Court blocks Clarett." In other news, "Media firms battle FCC." An article reports that "Patriot Act called lifesaver for U.S." And Bruce Fein has an op-ed entitled "We, the clutterers...."

USA Today reports that "Clarett blocked from NFL draft; Final ruling due later but unlikely to change" and "Judges seem skeptical of Clarett's argument; Jurists grill player's lawyer over union rights issues." In other news, "Microsoft averts Minnesota trial with settlement." An article reports that "Bush defends Patriot Act as 'making America safer'; Urges renewal, expansion of anti-terror law during Pa. visit." An editorial is entitled "Treatment of terror captives diminishes U.S. values," while an op-ed by Assistant Secretary of Defense Thomas W. O'Connell responds that "U.S. acts under laws of war." And letters to the editor appear under the heading "Story on man behind marriage amendment raises questions."

The Boston Globe reports that "Foes of gay marriage try long shot; Bill seeks to remove four of SJC's justices." In other news, "Appeals court blocks Clarett's bid for draft." An article reports that "UMass finds minority figures even." And in business news, "Hale and Dorr OKs merger deal."

The Los Angeles Times reports that "Court Puts Williams, Clarett Out of Draft; Appellate panel rules for NFL, issues stay of district judge's decision that opened door to early eligibility." In other news, "Microsoft Settles Minnesota Lawsuit." An article reports that "As Hate-Crime Concerns Rise, So Does the Threat of Hoaxes; Campuses often provide conditions that can cultivate false reports of racist or anti-gay acts, experts say." In other news, "DNA Leads to Suspect in Decades-Old Kansas City Slayings." An article reports that "Bush Uses Pennsylvania Trip to Urge Patriot Act Extensions; He invokes the war on terrorism on the 27th visit of his term to the key campaign state." Columnist Robert Scheer has an op-ed entitled "With God on His Side...; By invoking a higher power, Bush sidesteps pesky constitutional issues." And Law Professor Jonathan Turley has an op-ed entitled "Entrepreneurship Gets Slaughtered; An innovative meatpacker has a beef with the Bush team's regulators."
Posted at 23:33 by Howard Bashman



Also from this evening's broadcast of NPR's "All Things Considered": In addition to the segment that I mentioned earlier tonight on today's U.S. Supreme Court oral argument in the case about Guantanamo Bay detainees, this evening's broadcast also contained segments entitled "Oregon Judge Stops Issue of Gay Marriage Licenses" and "Bush Urges Retaining Patriot Act" (Real Player is required to play these audio segments).
Posted at 23:28 by Howard Bashman



If there were a National Endowment For The Arts & Crafts, would it fund obscene crafts? The brand new issue of The Onion presumes that the answer would be "yes" in an article you can access here.
Posted at 23:21 by Howard Bashman



"'Eats, Shoots & Leaves'; Punctuation, Long Abused, Makes a Comeback": Tomorrow's broadcast of NPR's "Morning Edition" will contain a segment focusing on the book "Eats, Shoots & Leaves: The Zero Tolerance Approach to Punctuation." You can access a preview here and listen to an extended interview of the book's author here (Real Player required). The New York Times, earlier this month, published this review of the book and, in January 2004, published an article headlined "Writes, Punctuation Book and Finds It's a Best Seller."
Posted at 23:10 by Howard Bashman



U.S. Court of Appeals for the D.C. Circuit decided two privacy-related appeals today: The Federal Bureau of Prisons permits its institutions to operate a program that allows inmates to be photographed with those individuals who come to visit with them. The question a three-judge panel addressed today, in an opinion you can access here, is whether inmates may maintain a claim against their institutions if the institutions order double prints of the photos and put the second copy to uses that the inmates don't particularly appreciate.

Today's other privacy-related ruling involves a restaurant customer's claim for invasion of privacy against a restaurant that turned over to the customer's employer, without the customer's consent, personal charge card information that revealed the customer's dining habits.
Posted at 23:00 by Howard Bashman



In other news from Pennsylvania: The Philadelphia Inquirer today reports that "Bush tells Pa. he wants Specter reelected; The conservative President's support could sway voters for the moderate senator." And The Pittsburgh Post-Gazette reports that "Specter gets a big boost from Bush visit; Senator hoping president's support helps thwart challenge from the right."
Posted at 22:50 by Howard Bashman



"Panel recommends no favors for lawyers; Legal journal is urged not to censor some cases": Today's edition of The Pittsburgh Post-Gazette contains an article that begins, "A committee has recommended that the Allegheny County Bar Association continue publishing in the Pittsburgh Legal Journal decisions in which members are involved as litigants."
Posted at 22:46 by Howard Bashman



"Supreme Court Hears the Case of Guantanamo": Linda Greenhouse will have this article in Wednesday's issue of The New York Times. Stephen Henderson and Frank Davies of Knight Ridder Newspapers report that "U.S. Supreme Court hears arguments on status of detainees." law.com reports that "High Court Hears Challenge to Guantanamo Detentions." And tonight's broadcast of PBS's "NewsHour with Jim Lehrer" contained a segment entitled "War and Liberties."
Posted at 22:30 by Howard Bashman



"Supreme Court Hears Detainees' Case": David G. Savage has this news update online at The Los Angeles Times.
Posted at 19:33 by Howard Bashman



"High Court Hears Cuba Detainees' Case on Jurisdiction, Rights": NPR's Nina Totenberg had this report (Real Player required) on this evening's broadcast of "All Things Considered."
Posted at 19:27 by Howard Bashman



"The Prisoners' Dilemma: The Gitmo detainees get their day in court. Sort of." Dahlia Lithwick has this essay online at Slate.
Posted at 19:23 by Howard Bashman



"Court says Pitcairn under British rule": The New Zealand Herald reports here today that "Pitcairn Island is subject to British jurisdiction and islanders accused of sexual offending can be tried under British law in New Zealand, the Pitcairn Islands Supreme Court ruled yesterday." BBC News reports that "Pitcairn trial to be under UK law." The Independent (UK) reports that "'Bounty' descendants face trial in sex case." And The Guardian (UK) reports that "Pitcairners to be tried by UK law." Last month, The New Zealand Herald reported that "Auckland lawyer appointed Pitcairn public defender." You can learn more about the Pitcairn Islands at this link.
Posted at 18:24 by Howard Bashman



"Supreme Court Hears Guantanamo Arguments": Today's broadcast of NPR's "Talk of the Nation" included this segment (Real Player required; 37 minutes in length), and among the participants was David G. Savage, who covers the U.S. Supreme Court for The Los Angeles Times.
Posted at 18:21 by Howard Bashman



Three-judge panel of the U.S. Court of Appeals for the Second Circuit tackles whether a secondary user's bad faith affects availability of the "fair use" defense in a copyright infringement action: You can access today's opinion of the court at this link and a concurring opinion by Circuit Judge Dennis Jacobs at this link.
Posted at 17:50 by Howard Bashman



"Hastings school psychologist's suit reinstated": Yesterday's issue of The Journal News of Westchester, New York contained this article about a recent ruling of the U.S. Court of Appeals for the Second Circuit. I previously mentioned this ruling in a post you can access here.
Posted at 17:37 by Howard Bashman



"Crime pays for ODU professor; A creative teacher, known for his class on murder, will spend a year working in the U.S. judicial system": This article appeared in yesterday's issue of The Daily Press of Hampton Roads, Virginia.
Posted at 17:23 by Howard Bashman



"Clarett appeals draft case to Supreme Court": ESPN.com provides this report. The Washington Post offers a news update headlined "Clarett's Attorneys to Ask Supreme Court for Relief." Gregg Easterbrook, meanwhile, today offers these thoughts at his blogg.
Posted at 17:10 by Howard Bashman



"Shoplifter's 'third strike' is reversed; U.S. appeals court backs man who got 25 years to life for stealing a $199 VCR": Claire Cooper, legal affairs writer for The Sacramento Bee, today has this report. My earlier posts on this matter can be accessed here and here.
Posted at 16:23 by Howard Bashman



In Pennsylvania, a Specter of defeat? The Associated Press offers an article headlined "Poll: Toomey Closing in on Specter in Pa." Yesterday, David J. Sanders had an essay entitled "Benchless: Arlen Specter keeps a qualified judge off the federal bench" at National Review Online. And American Prospect recently published an essay by Terence Samuel entitled "Specter Sport: Moderate Republicans, look out. Right-wingers are sharpening their swords for a fierce battle -- and not just in Pennsylvania." If Republicans retain control of the U.S. Senate, Senator Arlen Specter (R-PA) is next in line to serve as chair of the Senate Judiciary Committee.
Posted at 16:11 by Howard Bashman



"Many Started Web Logs for Fun, but Bloggers Need Money, Too": This article appeared yesterday in The New York Times.
Posted at 16:09 by Howard Bashman



"Judge Halts Gay Marriages in Ore. County": The Associated Press reports here that "A judge on Tuesday ordered a halt to same-sex marriage in an Oregon county that for weeks has been the only place in the nation where gays can get married." You can access today's ruling here and here.
Posted at 15:52 by Howard Bashman



Thanks to the U.S. Court of Appeals for the Ninth Circuit, the audience for Web logs can continue to grow: Today a unanimous three-judge panel of the Ninth Circuit affirmed a California federal district court's issuance of a permanent, state-wide injunction preventing California from enforcing a policy that prohibited state prisoners from receiving mail that consists of items downloaded from the Internet. The opinion explains:
In 2001, Pelican Bay [State Prison] adopted an internet-generated mail policy that provided: "No Internet Mail. After reviewing staffing levels and security issues internet mail will not be allowed. To do so would jeopardize the safety and security of the institution." The policy prohibits only mail containing material that has been downloaded from the internet but is not violated if information from the internet is retyped or copied into a document generated in a word processor program. The policy prohibits photocopies of downloaded internet materials but not of non-internet publications. Pelican Bay receives at most 500 pieces of mail containing internet materials, out of 300,000 total letters per month.

At least eight other California prisons have adopted similar policies. Prisoners are not allowed to access the internet directly, so Clement asserts that the policies effectively prevent inmates from accessing information that is available only on the internet, or is prohibitively expensive and time-consuming to obtain through other methods. For example, there is record evidence that several non-profit groups, such as Stop Prisoner Rape, publish information only on the internet, and that many legal materials are readily accessible only on the internet.
You can access today's per curiam opinion at this link.
Posted at 14:45 by Howard Bashman



"Supreme Court Appears Split on Guantanamo Prisoners": James Vicini of Reuters provides this report. Charles Lane of The Washington Post reports that "Supreme Court Hears Appeals on Guantanamo Bay Prisoners; Lawyer for Prisoners Calls Guantanamo a 'Lawless Enclave.'" Tom Curry, national affairs writer for MSNBC, has a report headlined "Testy high court hearing on Guantanamo case; Rights of 'enemy combatants' held in Cuba prison at issue." Anne Gearan of The Associated Press has an article headlined "Lawyer: Guantanamo Is a 'Lawless Enclave.'" And Slate's Dahlia Lithwick had this audio wrap-up (Real Player required) on today's broadcast of NPR's "Day to Day."

The attorney who argued today in the U.S. Supreme Court on behalf of the detainees formerly served as chief judge of the U.S. Court of Appeals for the Third Circuit.
Posted at 14:25 by Howard Bashman



Here's the address for this blog's new RSS feed: Newsreaders must really be catching on as a way to keep up with blogs, because I've already received a whole bunch of emails today asking for the new address for this blog's RSS feed. Simply copy this shortcut, which points to the new feed.
Posted at 14:20 by Howard Bashman



Access online the oral argument audiotape of this morning's U.S. Supreme Court oral argument in the Guantanamo Bay, Cuba detainee case: The audio (plus video indicating who is speaking) is available at this link (Real Player required), via C-SPAN.
Posted at 14:05 by Howard Bashman



"20 questions for the appellate judge" update: I am very pleased to report that Circuit Judge Paul J. Kelly, Jr. of the U.S. Court of Appeals for the Tenth Circuit will be the July 2004 interviewee in this blog's "20 questions for the appellate judge" feature. An archive of all the previous interviews is available at this link.
Posted at 10:27 by Howard Bashman



"A Bold Stroke: When Margaret Marshall was a corporate lawyer, her actions were colored by caution. But in her opinion ordering Massachusetts to allow gay marriages, the chief justice of the state's supreme court has shunned politics and stood on principle. Will she be remembered as the judge who jeopardized her court for a cause?" Emily Bazelon has this article in the brand new issue of Legal Affairs magazine. That publication has also issued this press release announcing the relocation of "How Appealing."
Posted at 10:15 by Howard Bashman



On the agenda: At 10 a.m. today, the Supreme Court of the United States will hear oral argument in the consolidated cases of Rasul v. Bush and Al Odah v. United States. These cases present the question whether foreign detainees in the war on terror held in U.S. military custody at Guantanamo Bay, Cuba are entitled to any amount of judicial review in the U.S. court system. The law firm of Jenner & Block has set up a resource center on these cases that provides access to the briefs filed in the Supreme Court.

The decision that the U.S. Supreme Court is reviewing issued from the U.S. Court of Appeals for the D.C. Circuit. More recently, a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion holding, in conflict with the D.C. Circuit, that these foreign detainees are entitled to judicial review in the United States.
Posted at 09:40 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": Nina Totenberg reports on the "Guantanamo Case." Also available are reports entitled "NFL Draft" and "Conservatives Seek to Unseat Sen. Specter." Real Player is required to play these audio segments.
Posted at 09:30 by Howard Bashman



See what's in the May|June issue of Legal Affairs magazine: You can access the table of contents here.
Posted at 08:20 by Howard Bashman



"Court Rules for Shoplifter in 3-Strikes Case; Appellate judges call situation an 'exceedingly rare' exception to state's sentencing law": Henry Weinstein has this article today in The Los Angeles Times. Bob Egelko of The San Francisco Chronicle reports that "'3-strikes' law takes hit in court; 25-year shoplifting sentence tossed." You can access at this link my report on yesterday's ruling of the U.S. Court of Appeals for the Ninth Circuit. The author of the blog "Patterico's Pontifications," meanwhile, asserts that the majority's opinion contains some errors.
Posted at 08:00 by Howard Bashman



"Hearst asks Supreme Court to hear P-I's case": The Seattle Post-Intelligencer reports here today that "The Seattle Post-Intelligencer's owner yesterday asked the state Supreme Court to review and overturn an appellate court ruling that would let The Seattle Times Co. use strike-related losses to end their joint operating agreement." And The Seattle Times reports that "Hearst files JOA appeal with state's high court."
Posted at 07:59 by Howard Bashman



"Prosecutors in Al-Hussayen trial shift focus to finances; Government says money went to terrorists": This article appears today in The Idaho Statesman.
Posted at 07:57 by Howard Bashman



Chicago's newspapers are reporting: The Chicago Tribune today contains articles headlined "IQ knocks out death penalty; Defendant found mentally retarded"; "Jury hears Hale taped with dad"; and "Church takes fight over land to court; Aurora rejects request to rezone west side parcel."

The Chicago Sun-Times, meanwhile, reports that "Judge rules out death penalty for retarded man" and "Tape has racist telling dad what to say to grand jury."
Posted at 07:55 by Howard Bashman



In news from the U.S. Supreme Court: Today's issue of The Miami Herald contains an article headlined "Detainees' legal fate on the line; The Supreme Court today hears a challenge to President Bush's decision to hold terror suspects in Guantanamo indefinitely, with no access to courts." Anne Gearan of The Associated Press reports that "Supreme Court Hears Detainees' Appeals." James Vicini of Reuters reports that "Supreme Court Considers Guantanamo Prisoners' Case." The Washington Times reports that "High court to rule on detainees" and "Terror suspects' attorney getting adjusted to the limelight." The Atlanta Journal-Constitution reports that "Detainees' ruling due; High court to decide Cuba prisoners' status." BBC News reports that "Guantanamo challenge at US court; The legal status of hundreds of detainees at Guantanamo Bay is to be challenged in the US Supreme Court." And in The New York Times, Law Professor David Cole has an op-ed entitled "America's Prisoners, American Rights," while Jonathan M. Hansen has an op-ed entitled "Making the Law in Cuba."

The Arizona Republic today reports that "Death-row sentences hinge on Ariz. case; High court revisits jury-vs.-judge issue." In USA Today, Joan Biscupic reports that "Ruling could affect more than 100 death sentences; Justices to decide if requiring juries to issue penalty should be retroactive." And The Reno Gazette-Journal reports that "Thirteen death row inmates could get new sentence."

In The New York Times, Linda Greenhouse reports that "Court Upholds Tribal Power It Once Denied." In The Washington Post, Charles Lane reports that "Justices to Weigh Arrests Made for Wrong Reasons; Police Officers Were Sued for Holding Motorist On Charge That Was Later Found Erroneous." In The Los Angeles Times, David G. Savage reports that "High Court Takes Up Key Pension Case; The justices will decide whether plans can cut earned benefits to retirees who reenter the workforce in their former industry." And The Houston Chronicle reports that "Court rejects Dems' appeal; Redistricting suit keyed to debate."
Posted at 06:50 by Howard Bashman



Welcome to the new online home of "How Appealing": Thanks so very much to Legal Affairs magazine for offering to host this Web log going forward. Regular programming will resume here after sunrise.
Posted at 00:00 by Howard Bashman



Monday, April 19, 2004
Please visit "How Appealing" at its new online address: At midnight on Tuesday, April 20, 2004, this Web log is moving to a new address. From that point forward, this blog will be hosted at the Web site of Legal Affairs magazine.

All future posts will appear at http://legalaffairs.org/howappealing/. Please reset your bookmarks accordingly.

If the Legal Affairs Web site ever becomes temporarily inaccessible, I will use this blog's original blogspot address as a backup site while any outage is underway.
Posted at 23:50 by Howard Bashman



Elsewhere in Monday's newspapers: In The Boston Globe, Lyle Denniston reports that "Supreme Court to hear 3 terror cases; Justices to consider the civil liberties of long-term detainees." An article reports that "In case of memoir, free speech trumps right to privacy." In other news, "Finneran's focus doubted amid redistricting probe." And columnist Adrian Walker has an essay entitled "1913 statute revives bias."

In USA Today, Joan Biskupic reports that "Prisoners test legal limits of war on terror; The Supreme Court prepares to consider president's authority in cases of foreigners, U.S. citizens named 'enemy combatants.'" A related article is headlined "Prisoner's father hopes courts find, fix 'big mistake'; But U.S. says son is held in Cuba for good reason." And you can access here "The questions the court will consider."

The Los Angeles Times reports that "Serial Molester Held in Oregon; Edward Harvey Stokes is arrested after using a false address to get a license; He disappeared after his release from an Orange County jail." Law Professor Richard L. Hasen, author of the "Election Law" blog, has an op-ed entitled "Balancing Money in Politics." And letters to the editor appear under the heading "Seeking Equal Rights for Gays."

Finally for now, Bob Barr has an op-ed entitled "Amendmentitis" in The Washington Times.
Posted at 23:20 by Howard Bashman



Later this month, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit is scheduled to hear oral arguments in Saipan: The calendar can be viewed at this link. Coincidentally, Tuesday's issue of The Guam Daily News contains an article headlined "Saipan official indicted" that begins, "If you've been drinking any of Saipan's water over the last few years, you may have been drinking water tainted with coliform or fecal coliform bacteria."
Posted at 23:10 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Supreme Court agrees to hear Washington state traffic stop suit"; "Shoplifter's 25-year sentence overturned"; "High court won't consider Calcasieu Parish triple killing case"; "High court refuses to hear appeal of condemned killer"; and "Alabama files brief in support of U.S. military officials."
Posted at 23:00 by Howard Bashman



"Microsoft Settles Minn. Antitrust Suit": Reuters provides this coverage. And The Minneapolis Star Tribune reports that "Microsoft settles Minnesota antitrust suit."
Posted at 22:53 by Howard Bashman



"Supreme Court says U.S. may bring case after tribal trial": Stephen Henderson of Knight Ridder Newspapers provides this report.
Posted at 22:33 by Howard Bashman



"Criticism of court leads to ban on Atlanta law firm; A Madison County judge apparently was deeply offended by comments from former U.S. Attorney General Griffin Bell": This article appeared over the weekend in The St. Louis Post-Dispatch.
Posted at 22:31 by Howard Bashman



Available online from law.com: Tony Mauro reports that "High Court Wary of Making 'Ring' Retroactive." In other news, "A Veteran Gives Voice to Guantanamo Case; Ex-judge, WWII vet John Gibbons will argue that even suspected terrorists deserve access to the courts." An article reports that "NFL Wins Temporary Limit on Draft of Players." In news from California, "Despite 'Andrade,' 9th Circuit Rules Theft Sentence Too Long" and "Federal Abortion Trial Comes to an End, Decision Soon." And an article reports that "Wilmer Cutler Joins Forces With Hale and Dorr; Combined firm will have more than 1,000 attorneys in several cities."
Posted at 22:30 by Howard Bashman



"At court: terror-war detentions; The case involving Guantanamo could alter government powers." Warren Richey will have this article in Tuesday's edition of The Christian Science Monitor.
Posted at 22:25 by Howard Bashman



"High Court Restricts Judges on Death Penalty": NPR's Nina Totenberg had this report (Real Player required) on this evening's broadcast of "All Things Considered."
Posted at 22:23 by Howard Bashman



Divided three-judge Ninth Circuit panel sets aside as cruel and unusual punishment a "three-strikes," 25 years-to-life sentence imposed on a state court convict for stealing $199 VCR machine: You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link. You can access my summaries of the two recent U.S. Supreme Court rulings that today's Ninth Circuit decision seems, at first glance, to contravene at this link. Circuit Judge Andrew J. Kleinfeld dissented, in an opinion you can access here. Today's opinion does not appear to mention the California man who was sentenced to 25 years-to-life for stealing a slice of pepperoni pizza that one would hope, under the circumstances, was especially tasty (more details available here).
Posted at 21:41 by Howard Bashman



"Intel, Top Rival Set for Supreme Court Showdown": Reuters provides this report.
Posted at 21:36 by Howard Bashman



"This appeal from a conviction in 2003 concerning a racially motivated murder in a national forest in 1966 primarily presents constitutional due process and confrontation issues." So begins a very interesting opinion that a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued today.
Posted at 21:35 by Howard Bashman



"The Rule Regarding Unpublished Opinions Is A Wolf In Sheep's Clothing": "Milbarge" has this post, with which I disagree, at the "Begging The Question" blog.
Posted at 21:29 by Howard Bashman



Crab cakes may have been made in the USA, but the crab they contained was imported: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit affirmed a trial court's dismissal, for lack of standing under the Lanham Act, of a claim that Made in the USA Foundation brought against Phillips Foods, Inc. of Maryland. You can access today's ruling at this link.
Posted at 21:20 by Howard Bashman



"U.S. Court Won't Review Ruling on Mystery Skeleton": Reuters reports here that "A U.S. appeals court declined on Monday to reconsider its February decision allowing scientists to resume testing on a 9,000-year-old skeleton -- called 'Kennewick Man' -- despite protests from American Indian tribes." You can access today's order of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 21:11 by Howard Bashman



"Death Penalty: The Movie; The Supreme Court finds its happy ending." Online at Slate, Dahlia Lithwick has this report on one of today's U.S. Supreme Court oral arguments.
Posted at 19:48 by Howard Bashman



Quick update on today's Third Circuit oral argument involving whether to recuse the federal district judge presiding over a handful of large asbestos-related bankruptcy cases: Today's oral argument before the U.S. Court of Appeals for the Third Circuit was scheduled to run about an hour and a half. In fact, the argument began at 1 p.m. and did not wrap-up until 4:30 p.m. The courtroom was packed with observers, to the point where it was standing room only. The case was well argued on all sides, but, as someone who has read all of the briefs filed in the Third Circuit in this matter, the argument did not change my view concerning how that court is likely to rule. More details are available at this link, where in the final paragraph I previewed today's oral argument.
Posted at 17:55 by Howard Bashman



"U.S. Appeals Panel Blocks Clarett's Entry Into N.F.L. Draft": The New York Times provides this news update. The Washington Post reports that "Court Suspends Ruling That Opened NFL Draft to Clarett." And a reader of "How Appealing" who was present for today's oral argument in the U.S. Court of Appeals for the Second Circuit emails:
The CA2 heard arguments today in Maurice Clarett v. NFL. I could recount the oral arguments, which were extensive, but the news is that the court has just now issued a stay of the district court's ruling (with a full decision to follow), therefore precluding Clarett (and USC WR Mike Williams) from the draft, largely because the NFL offered to have a supplemental draft if the lower court's decision is affirmed. The CA2 clearly held, however, that the NFL had demonstrated a "likelihood of success on the merits." The stay application had been referred to the merits panel by a motions panel about 3 weeks ago, and was briefed on an extremely expedited basis.
I thank my reader for this report.
Posted at 17:50 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Death Sentences Hinge on Court Decision." And in other news, "Court Blocks Clarett From NFL Draft"; "Senate Considers Asbestos Victims' Fund"; and "Document: Oklahoma City Bombing Was Taped."
Posted at 17:45 by Howard Bashman



A look back, and a look ahead: This morning at midnight, I posted online the April 2004 installment of "20 questions for the appellate judge." This month's interview offers a perspective not reflected in earlier installments of the "20 questions" feature -- that of a senior U.S. District Judge who has sat by designation with nearly all of the U.S. Courts of Appeals. You can access this month's interview here and here.

And, if all goes as planned, at midnight tonight "How Appealing" will begin to be hosted at the Web site of Legal Affairs magazine. This blog's new address will be prominently featured at the top of this page when the switch-over takes place. Old content will remain here, but the only place to access this blog's new content will be at its new address.
Posted at 11:21 by Howard Bashman



Access online today's U.S. Supreme Court opinion and Order List: The Supreme Court, which hardly ever issues an opinion on a Monday during an oral argument week, today issued its decision in United States v. Lara, an important Indian-rights case. You can access the ruling at this link. Justice Stephen G. Breyer issued the opinion of the Court, in which the Chief Justice and Justices John Paul Stevens, Sandra Day O'Connor, and Ruth Bader Ginsburg joined. Justice Stevens also issued a concurring opinion. Justice Anthony M. Kennedy issued an opinion concurring in the judgment, and so did Justice Clarence Thomas. Finally, Justice David H. Souter issued a dissenting opinion, in which Justice Antonin Scalia joined. The oral argument transcript is available at this link.

Today's Order List is available at this link. The Court granted certiorari in one case and summarily affirmed another.

In early news coverage, Gina Holland of The Associated Press reports that "Court Won't Hear Texas Redistricting Case"; "High Court Rejects Religious Trooper Case"; and "High Court Won't Intervene in River Fight." An additional AP report is headlined "Feds May Prosecute Tribe, High Court Rules." And James Vicini of Reuters reports that "Supreme Court Rejects Indian Activist Peltier's Appeal."
Posted at 10:00 by Howard Bashman



"Newark lawyer argues for enemy combatants; High court gets Guantanamo Bay case": This article appears today in The Star-Ledger of Newark, New Jersey. This case will be argued tomorrow at the U.S. Supreme Court.
Posted at 09:55 by Howard Bashman



"Very bad idea": The Las Vegas Review-Journal today contains an editorial that begins, "In what could be the worst proposal to come down the pike in quite some time -- and when you're talking about the federal government, that's saying something -- a Kentucky representative wants to give Congress the power to overrule U.S. Supreme Court decisions it doesn't like."
Posted at 09:50 by Howard Bashman



"Memogate": Manuel Miranda had this essay yesterday in The Pittsburgh Tribune-Review.
Posted at 09:30 by Howard Bashman



Available online from The Associated Press: Gina Holland reports that "Supreme Court Takes Up Death Penalty Case." And in other news, "Calif. Child Molester Caught in Oregon"; "Families Mark Oklahoma Bombing Anniversary"; and "Bush to Tout Patriot Act in Pa."
Posted at 09:25 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": Nina Totenberg has two reports, "High Court to Review Death Penalty Case" and "FBI Investigates Gorelick Death Threats." Also available is a report entitled "Gay Republicans Question Support for Bush." Real Player is needed to play these audio clips.
Posted at 09:15 by Howard Bashman



"9/11: Save Some Blame for Courts That Created The 'Wall.'" Stuart Taylor Jr. has this essay in today's issue of National Journal.
Posted at 09:08 by Howard Bashman



On the agenda: The Supreme Court of the United States today begins the final two-week oral argument session of the October 2003 Term. And at 10 a.m. today the Court is scheduled to issue an Order List.

The second of two cases to be argued at the Court today is Schriro v. Summerlin. The case presents the following questions:
In Ring v. Arizona, 536 U.S. 584, 589 (2002), this Court held that the Sixth Amendment jury trial guarantee extends to the determination of any fact, other than a prior conviction, that increases the maximum punishment for first-degree murder from life imprisonment to death. In the instant case, the United States Court of Appeals for the Ninth Circuit held that the rule announced in Ring should be applied retroactively to cases on collateral review.

1. Did the Ninth Circuit err by holding that the new rule announced in Ring is substantive, rather than procedural, and therefore exempt from the retroactivity analysis of Teague v. Lane, 489 U.S. 288 (1989) (plurality)?

2. Did the Ninth Circuit err by holding that the new rule announced in Ring applies retroactively to cases on collateral review under Teague's exception for watershed rules of criminal procedure that alter bedrock procedural principles and seriously enhance the accuracy of the proceedings?
On the day that a divided eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit issued its decision in this case, I predicted that U.S. Supreme Court review would occur. More details about this very unusual case can be accessed here, in a post I made when the Ninth Circuit issued an order taking the case en banc. As I then explained, this is a "death penalty cases from Arizona that offers a little something for everyone."

Finally, today at 1 p.m. a three-judge panel of the U.S. Court of Appeals for the Third Circuit will hear oral argument, once again, on consolidated petitions for writ of mandamus that seek the recusal of District Judge Alfred M. Wolin of the U.S. District Court for the District of New Jersey from continuing to preside by designation over a handful of very large asbestos-related bankruptcy cases pending in the U.S. District Court for the District of Delaware. You can access at this link Judge Wolin's recent decision refusing to recuse himself. And the Third Circuit's earlier ruling in this matter can be accessed here. I will be attending this afternoon's oral argument on behalf of various of my clients, and I will be sure to link to whatever news coverage the oral argument generates.
Posted at 06:45 by Howard Bashman



In Monday's newspapers: In The Washington Post, Charles Lane reports that "High Court to Clarify Judge-Only Sentencing; Arizona Death Row Case Reaches Justices." A front page article is headlined "Police Lineups Falling Out of Favor; Lack of Suspect Look-Alikes Helps Lead to Demise." And U.S. Senator John Cornyn (R-TX) has a letter to the editor that appears under the heading "Punished Over Policy."

In The New York Times, Adam Liptak reports that "Study Suspects Thousands of False Convictions." In local news, "One Attack or Two? Jury to Get Trade Center Insurance Claim." Editorials are entitled "The Court and Guantanamo" and "Foreigners on Death Row." And a letter to the editor appears under the heading "Scalia and the Press."

The Christian Science Monitor reports that "Patriot Act gets boost from 9/11 hearings; Controversial law faces a renewal vote this year; Bush calls it a 'needed tool' in helping to catch suspected terrorists." And an editorial is entitled "A War President Within the Law."
Posted at 06:25 by Howard Bashman



20 Questions for Senior District Judge Milton I. Shadur of the U.S. District Court for the Northern District of Illinois: "How Appealing" is delighted that Senior District Judge Milton I. Shadur of the U.S. District Court for the Northern District of Illinois has agreed to participate in this Web log's recurring monthly feature, "20 Questions for the Appellate Judge."

Judge Shadur was born in St. Paul, Minnesota in 1924. He attended undergraduate and law school at the University of Chicago. Between college and law school, he served in World War II as a Lieutenant (j.g.) in the U.S. Navy. After law school, he entered the private practice of law in Chicago.

In April 1980, President Jimmy Carter nominated Shadur to fill a vacancy on the U.S. District Court for the Northern District of Illinois. In June 1992, Judge Shadur took senior status. Since taking senior status, Judge Shadur -- in addition to retaining a full civil and criminal calendar on the district court -- has sat regularly three or four times a year by invitation with U.S. Courts of Appeals around the country. In all, he has sat by designation with the U.S. Courts of Appeals for the D.C., First, Second, Third, Seventh, Ninth, and Tenth Circuits, and he is scheduled to sit with the Sixth Circuit soon. Judge Shadur's chambers are located in Chicago.

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

1. How, in your experience, does a U.S. District Judge benefit from sitting by designation on a U.S. Court of Appeals? Conversely, what benefit, if any, might a court of appeals judge who never sat as a trial judge gain by sitting by designation on a district court? And do you believe that the U.S. Court of Appeals for the Seventh Circuit made an error in judgment when it stopped inviting district judges from within the circuit to sit by designation, and why or why not?

It's difficult for me to identify the substantive benefits derived from sitting with a Court of Appeals, apart of course from such matters as experiencing an occasionally welcome change of pace from activity on the District Court, the opportunity to enjoy some warm interpersonal relationships and like intangible rewards. My sense, though, is that I've also gained some insights into what's important from the appellate perspective that merely reading Court of Appeals opinions may not convey fully (especially when, as is regrettably sometimes the case, such opinions portray a lawsuit that is quite different from the one that the District Judge has lived through at his or her level). My hope is that thus being exposed to the appellate perspective, and to what an appellate panel finds persuasive or unpersuasive, may help me to shape my District Court rulings in a way that will articulate my views both accurately and persuasively. Finally, I confess that my Court of Appeals sittings, however much I enjoy them, regularly reconfirm that my "day job" is the right one for me -- that my nature and abilities are better suited, in terms of full-time or principal activity, to laboring in the District Court vineyards than to appellate court work.

As for the other side of the coin, I don't believe that occasionally presiding over a District Court trial provides a very valuable experience for a Circuit Judge who has not had prior experience as a trial judge. Instead it seems to me to be not much different in value from the periodic visit by the board of visitors to the poorhouse in Oliver Twist, with one possible exception: the need for a visiting appellate judge to rule on evidentiary and other issues instantly, without the luxury of going back to the books to render decisions at greater leisure, should give the judge a more realistic view of what it means to provide what has often been termed "a fair trial, not a perfect trial." It should also be remembered that only a small part of the District Judge's time is spent in the conduct of trials, so that an occasional stint by a Circuit Judge in the conduct of a trial doesn't come close to conveying a full appreciation of the many other things that District Judges must deal with that may ultimately find their way onto the appellate docket.

Lastly, because I'm unaware of the policy reasons that led to the change in the invitation practice from the time that I was first invited to sit with the Seventh Circuit (more than ten years before I took senior status), I'm reluctant to opine in terms of any possible "error in judgment" vel non. But I am satisfied that in many cases there are affirmative benefits to a Court of Appeals panel in being able to draw on the experience of a trial judge to gain insights that Circuit Judges who lack such experience may not have -- and I suspect that the Courts of Appeals that do extend invitations to District Judges may well share that view.

2. Some academics at The Ohio State University performed a study, whose methodology I cannot vouch for, which concluded that visiting U.S. District Judges who sat on U.S. Court of Appeals panels did not participate as fully in the decision-making process as did their appellate court colleagues. In your experience, both first-hand and based on what you have heard from others, is this true? Is it nonetheless a legitimate concern? And more specifically, are visiting judges more reluctant to advocate bold pronouncements on the development of the law, less active at oral argument, and are they afforded any input into how a court of appeals should dispose of a petition for rehearing en banc?

Although I don't pretend to know what kind of methodology could arguably support the kind of conclusion that you report (no academic can be a fly on the wall during the course of the post-argument conferences among appellate panel members), and though I freely confess that no statistical significance can be attached to my personal experience or that of any other individual District Judge, I have never had any such lesser-participation experience anywhere. In light of your question, I had one of my law clerks who is an electronic search guru run a couple of lists, and I then did a quick scan of the published opinions that I've written (as you know, a later question deals with the subject of unpublished and noncitable orders). Even though I've made no effort to distill the results of that examination into precise numbers, what they reflect generally is that I've written something over 100 published opinions at the appellate level, which represent (as you might expect) a third of the published opinions issued by the panels in which I've participated. About one-fourth of my opinions have been written in cases that have involved dissents, and those in turn are divided in almost exactly equal numbers between situations in which I have been the dissenting judge and those in which I have written for the panel and another member of the panel has dissented. As you can readily see, that picture is totally at odds with the conclusions of the study that you mention.

As for your other questions, very few District Judges whom I know fit into the shrinking violet category, so I would guess (but I confess it is only a guess) that few if any who are invited to sit with a Court of Appeals would be either "more reluctant to advocate bold pronouncements on the development of the law" or "less active at oral argument." That's certainly not my own self-perception, although -- as always -- you could probably get a more accurate reading from judges who have served on panels with me. As for en banc petitions, in my experience every Court of Appeals excludes visiting judges (even visiting Circuit Judges, I believe) from voting on such petitions. Because a Court of Appeals normally encounters a combined motion for panel rehearing and petition for en banc hearing, I'm always meticulous in voting on the former but not the latter. Nonetheless a number of Circuit Judges have chosen to report my views as to en banc consideration in the form of framing those views as recommendations (even though I've refrained from making any).

3. What are the procedures for a federal district judge to become a visiting judge by designation on a U.S. Court of Appeals? Do such visitors volunteer for these assignments, or are they invited? What roles, if any, do the Chief Justice, the Chief Circuit Judges, and a judge's colleagues on the district court play in the process?

Under 28 U.S.C. sec. 292(d) it is the Chief Justice of the United States who is assigned the power to designate and to assign temporarily a District Judge for service in another circuit, including service with a Court of Appeals. That potential designation and assignment are statutorily triggered by the presentation of a certificate of necessity by the Chief Judge of the requesting circuit. And that procedure is mirrored as to senior judges ("retired judges" is the technical term) in 28 U.S.C. sec. 294(d), which provides for the Chief Justice to maintain a roster of retired judges "who are willing and able to undertake special judicial duties from time to time outside their own circuit."

As a practical matter, that roster of senior judges is maintained by a Judicial Conference committee designated as the Committee on Intercircuit Assignments. Each year that Committee sends out a questionnaire that inquires of senior judges about their willingness to serve, including any indication of their preferences in terms of the courts involved. Maintenance of that roster is of course consistent with the provision of 28 U.S.C. sec. 294(b) that permits every senior judge to "continue to perform such judicial duties as he is willing and able to undertake," with the only limitation being the nonstatutory setting of certain minimum levels of activity to be entitled to specified levels of staffing as to law clerks, secretaries, minute clerks and court reporters.

As for your question regarding volunteering v. being invited, as I've just said any senior District Judge who expresses his or her willingness to serve elsewhere is also free to express preferences in that regard in his or her filing with the Committee on Intercircuit Assignments. Although I don't know whether others may have undertaken direct communications with the Chief Judge of another circuit to pursue those preferences, to my recollection I have never done so in the first instance. Instead the original invitation to sit with each circuit has come from the then Chief Judge, rather than from a request on my part. Sometimes the Chief Judge or one of the other members of the Court of Appeals has been someone whom I know, but in some instances that has not been the case. Once I have ended up on a panel with a Court of Appeals, of course, I may follow up with inquiries about future years. But to return to my earlier point, in no instance have I specifically sought out -- or refrained from seeking out -- any court.

Finally, to my knowledge the senior judge's colleagues on the District Court play no role in the process -- remember that they have no control as to the amount of work that a senior judge may choose to undertake.

4. You cast the deciding vote against President Bush on a three-judge Ninth Circuit panel in the case known as Gherebi v. Bush (issued Dec. 18, 2003), a decision holding that Guantanamo Bay detainees in the war on terror are entitled to some measure of judicial review in the United States courts. Ninth Circuit Judge Stephen Reinhardt's majority opinion explains that one of the disagreements between the majority and Ninth Circuit Judge Susan P. Graber, in dissent, was whether the Ninth Circuit should announce a ruling given that the U.S. Supreme Court had already granted review in a case presenting the same question from the D.C. Circuit. Did it concern you at all, given Judge Reinhardt's less than perfect track record before the U.S. Supreme Court, that issuing a ruling against the President in that case might in fact prove counter-productive? And what are some other especially significant cases that you have participated in by designation on the U.S. Courts of Appeals, and in any of those did you cast the deciding vote on a divided panel?

In the best tradition of the aphorism that "timing is everything," the D.C. Circuit cases that presented the same question that our panel dealt with in Gherebi v. Bush have been argued before the Supreme Court on April 20 (these answers are being written just a few days before that date). Cert. has been applied for recently in Gherebi, and the latest issue of Law Week hasn't reported any action on the application as yet.

Now to turn to your direct question, no consideration was given by any of our panel members (including dissenting Circuit Judge Susan Graber) as to whether what you refer to as Steve Reinhardt's "less than perfect track record" should lead to any different handling of the case, on the premise that our decision might create a backlash. In my view any such consideration would be totally out of place on the part of a Court of Appeals panel -- and that possibility is one that I would surely not ascribe to the Supreme Court either. Instead, I believe that one important consequence of the issuance of our ruling, rather than our simply abstaining pending the Supreme Court's decision in the cases originating in the D.C. Circuit, is to make it clear that the view that habeas jurisdiction does exist in the Guantanamo Bay situation is one that has been thoughtfully considered and answered affirmatively by a court at the appellate level, and not merely by lawyer advocates who have a stake in the outcome.

As for "other especially significant cases" in which I have participated by designation, it's difficult for me to single out specific cases because I'm not sure what criteria ought to be applied. But one other case in which I cast the deciding vote on a divided panel was United States v. Morros, 268 F.3d 695 (9th Cir. 2001), a high-profile case in which our panel majority held that the District Court had abstained improperly in a suit brought by the United States Department of Energy to challenge the Nevada State Engineer's denial of water permit applications to evaluate the suitability of the Yucca Mountain site for use as a nuclear waste repository. Another case that would probably be considered as "especially significant" from any perspective would be the Third Circuit decision that first addressed the constitutionality of the widely prevalent statutes that require the registration of sex offenders -- in that case, Artway v. Attorney General, 81 F.3d 1235 (3d Cir. 1996), the masterful and comprehensive panel opinion was written by Ed Becker without dissent, though I wrote a short concurrence addressing one facet of his opinion (id. at 1271).

5. What are your most favorite and least favorite aspects of sitting by designation as a federal appellate judge, and what are your most favorite and least favorite aspects of serving as a federal district judge?

My most favorite aspects of sitting by designation with Courts of Appeals have really been addressed in my response to your question 1. My least favorite aspect, though in some quarters this might be considered a strength of the appellate process, is encountered in cases in which I have to "rise above principle" to write in a way that will command a second vote or even unanimity -- to trim my own firmly-held views by reshaping them into a form that I consider less satisfactory.

As for my regular job as a District Judge, I confess that everything about it is richly rewarding, except for the distorted type of criminal sentencing that has been thrust upon us by the Sentencing Guidelines and congressionally-mandated minimum sentences. Forty five years ago Charles Wyzanski, Jr., a fine District Judge from Massachusetts, wrote a letter to then Senator Leverett Saltonstall (a letter reprinted at page 456 of a book by Walter Murphy and C. Herman Pritchett, Courts, Judges and Politics -- An Introduction to the Legal Process (3d ed. 1979)) explaining why Judge Wyzanski was declining his proposed nomination to the First Circuit (by chance, when I was in the practice of law I had the privilege of arguing a case that successfully challenged, in First Amendment terms, the Northern District of Illinois' rule that impermissibly limited lawyers' ability to comment on pending litigation -- and Judge Wyzanski was a member of the panel, sitting by invitation in the Seventh Circuit). It's impossible for me to improve on Judge Wyzanski's explanation of the special joy of judicial service at the District Court level -- after characterizing as "the classic example" of the scope of a judge's initiative and discretion as the "width of choice of sentencing defendants" (something that no longer exists in the federal courts), he said in part:
In civil litigation a District Judge has a chance to help the lawyers frame the issues and develop the facts so that there may be a meaningful and complete record. He may innovate procedures promoting fairness, simplification, economy, and expedition. By instructions to juries and, in appropriate cases, by comments on the evidence he may help the jurors better to understand their high civic function. He is a teacher of parties, witnesses, petitioners for naturalization, and even casual visitors to his court. His conduct of a trial may fashion and sustain the moral principles of the community. More even than the rules of constitutional, statutory, and common law he applies, his character and personal distinction, open to daily inspection in his courtroom, constitute the guarantees of due process.

* * *

While it may well be true that the highest office for a judge is to sit in judgment on other judges' errors, it is perhaps a more challenging task to seek, from minute to minute, to avoid one's own errors. And the zest of that task in enhanced by the necessity of reacting orally, instead of after the reflection permitted under the appellate judge's uninterrupted schedule of reading and writing.
6. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

It is of course difficult to avoid listing Chief Justice John Marshall as a near-Pavlovian response, given his enormous accomplishments in shaping an institution that was shapeless when he came to it, in much the same way that George Washington really created the office of President of the United States. But if I may choose a judge closer in time -- someone whose work I have read when it was fresh rather than simply read about, and someone before whom I have had the opportunity to argue and to observe oral argument, my choice would be Justice William Brennan. To me he had all of the attributes that I most admire in a judge, including the ability to shape dissents that are at least as powerful as his opinions for the Court. And if I were compelled to choose one opinion that for me epitomizes him as a Justice, it would be his dissent in Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985), which for me proved the analytical bankruptcy of Hans v. Louisiana and its progeny in defining the scope of federal jurisdiction and the Eleventh Amendment. If that opinion, written for four dissenting Justices, had been able to capture one more vote, our ongoing jurisprudential trend curbing federal judicial power in favor of states' rights would have followed a very different course.

7. Not only are you the first participant in the "20 questions for the appellate judge" feature who has never been a full–time appellate judge, but you are also the first participant who has served as a judge on so many different U.S. Courts of Appeals. Perhaps you can say a word or two about what distinguishes each of the federal appellate courts with which you have sat from the others? And is there any reason why you have avoided federal appellate courts based in the south, or are you merely saving the best for last?

It is certainly true that each Court of Appeals with which I've had the opportunity to sit has had its own institutional personality -- not simply in terms of procedures but in terms of such characteristics as collegiality. That being said, I would view it as an abuse of the hospitality with which I have always been greeted everywhere to venture on any comparisons (let alone comparisons that might be thought of as invidious). As for the omission from my appellate stopover points of three Courts of Appeals based in the south (the Fourth, Fifth and Eleventh), one based in the north (the Eighth) and the D.C.-based Federal Circuit, that is purely a matter of chance rather than of choice. As I've already said in response to question 3, my out-of-circuit sittings have always stemmed in the first instance from invitations that I've had extended to me (that has most recently been the case with the Sixth Circuit, when such an invitation to sit with that court for the first time -- unbidden, though very welcome when it arrived -- came from its Chief Judge last summer; that initial sitting is scheduled for this June 17 and 18).

8. Based on your experiences sitting with the U.S. Court of Appeals for the Ninth Circuit, what are your views on whether the Ninth Circuit 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?

My understanding is that when the Courts of Appeals were first created they served essentially equivalent populations. With the population explosion that has taken place in California and Arizona, as well as the addition of Hawaii, the Ninth Circuit has become truly unwieldy in terms of the size of its judicial complement. Even though I suspect that everyone agrees on that score, any attempt to divide the circuit in a rationally acceptable way strikes me as extraordinarily difficult. Anything that would attempt to address the problem by splitting California between two circuits is really an unacceptable alternative, and no other proposals that I have seen would seem to work either. From the jurisprudential point of view, the principal difficulty that I see is encountered when a case must be considered en banc, for the need to have fewer than all of the judges participate creates the possibility of an en banc decision that does not truly reflect the circuit's majority view.

9. How did you come to President Jimmy Carter's attention as a potential nominee to serve on the U.S. District Court for the Northern District of Illinois?

To my knowledge I never came to President Carter's attention at all. My path to the federal bench was an odd one, beginning with a telephone call out of the blue from then Illinois Senator Charles Percy in the spring of 1974 (at that time I was a practicing lawyer, having been with the same small firm for a quarter century), asking whether I would be interested in being on his short list (six in number) for a then-anticipated vacancy on the Seventh Circuit. Because that would have represented the fulfillment of a boyhood dream, I said “yes” to the invitation in a nanosecond. When a vacancy did arise a few months later, Bill Bauer (then a District Judge, with a distinguished background including service as a state court judge and then as the United States Attorney here) was selected as the nominee to replace the late Otto Kerner, and I cheerfully resumed the practice of law. Then a year later, still during the Ford administration, Senator Percy called once again to ask whether I had an interest in being considered for the District Court -- but both because my practice was not that of a trial lawyer and, more importantly, because I then had five people in college and could not afford to take the vows of poverty, I declined with gratitude.

One year later, during the last year of President Ford's term, Senator Percy called again, said he didn't want to take "no" for an answer and sent my name in to the Senate Judiciary Committee -- although he was careful to tell me that in the summer preceding a presidential election it was customary for a freeze to set in (those were the days when the differences between the party in power and the party out of power manifested themselves only a few months before the election, rather than today's pattern of perpetual conflict). What the Senator told me was that although he had never asked anything about my politics and did not propose to do so then, his hope was the then junior Senator -- Democrat Adlai Stevenson -- would not “blue slip” me (exercise a veto) if the Senate were able to consider the nomination actively. But the presidential-year freeze did set in a couple of months before the November 1976 election, and once again I continued with the practice of law.

It was a couple of years later, during President Carter's administration, that I received a similar call from Senator Stevenson (who had then acquired the power of recommendation, although Republican Senator Percy was still serving) -- and that was what actually led to my District Court appointment. At least in those days the President played a much less active role (if any) in District Court appointments, which is why I began this answer by disclaiming any involvement (so far as I know) by President Carter himself.

10. Experience teaches that it is much easier for an individual to achieve U.S. Senate confirmation for a U.S. District Court judgeship than it is for a U.S. Court of Appeals judgeship. Isn’t it true, however, that the most powerful individual position in the entire federal judiciary is U.S. District Judge? Please explain why you agree or disagree, and do you believe that the U.S. Senate should scrutinize district judge candidates more closely or appellate court candidates less closely?

It's nice to hear that you regard the District Judge as occupying "the most powerful individual position in the entire federal judiciary" -- but that's only because you've inserted "individual" into that proposition. All of the things that Judge Wyzanski has said tend to demonstrate why, with that qualification, the proposition is an accurate one. And as I've suggested, for me one of the most satisfying (and at the same time most challenging) aspects of the job is that I have the sole responsibility for calling things as I see them, after what I hope has been full deliberation. In practical terms, moreover, the caseload numbers and the numbers of judges operating at the two levels are such that a Court of Appeals can't effectively monitor all of the things that a District Judge does, and that enhances (or certainly should enhance) the sense of responsibility that ought to weigh on the conscience of the District Judge with every decision.

As for any notion of increased scrutiny by the Senate, again the sheer logistics of the process get in the way of any realistic way to accomplish that. It seems to me as a practical matter that the system must depend, as it has traditionally, on the efforts of the sponsoring Senator or Senators to choose wisely. Though admittedly less than an ideal solution, I know of no better alternative.

11. What role should a federal judge's personal and political ideology play in deciding cases, and when if ever is it appropriate for a judge to decide how to rule based solely on his or her personal preference? Also, if some federal judges are going to decide cases based largely on personal preference, can U.S. Senators be faulted for assuming that every judgeship nominee might adopt that approach if confirmed?

Every judge -- indeed, every human being -- has attitudes and predilections that have been shaped by background, education, experience and all of the other things that enter into the human equation. My view of the difference between the "activist" judge and the "conservative" judge has always been that the former permits (or even intends) those predilections to drive the engine of his or her judicial opinions, while the latter is keenly aware of those predilections and makes a conscious effort -- by affirmative action, if you will -- to avoid having them shape the conclusions and results that he or she reaches. For me the first alternative, when practiced by a judge of any ideology, undercuts the very concept of justice. By contrast, the second type of effort, which I regard as a sort of judicial equivalent of the "dynamic tension" concept expounded by famed (or more accurately once-famed) bodybuilder Charles Atlas, provides the model that I try to follow. To be sure, I recognize that my view may be regarded as idealistic or perhaps even naive, but the suggestion that you pose at the end of your question strikes me as overly cynical -- as potentially feeding the demonstrated tendency of too many Senators to pursue their own predilections and biases in the process of confirming or rejecting judicial nominees.

12. What are your views on the judicial confirmation battles underway in the U.S. Senate, the use of filibusters, and the use of recess appointments to place filibustered nominees onto the federal appellate courts?

For me any President who views it as his or her function to load up the federal judiciary with ideologues of any stripe -- with activists in the sense described in my last answer (whichever end of the political spectrum they happen to occupy) -- poses an ultimate threat to the proper role of a truly independent judiciary in a government comprising three branches and predicated on a system of checks and balances. If the minority-party Senators in any administration perceive that to be taking place, I cannot fault them for using an established legislative practice -- the filibuster -- to block the confirmation of extremist candidates. Unfortunately, extremes tend to beget greater extremes, and the increased resort to filibusters as an essentially defensive or holding device has generated the use of recess appointments that in my view do violence to the Constitution's requirement that presidential appointments must be made with the advice and consent of the Senate.

13. How would you describe your judicial philosophy, and which judicial opinions that you have written stand out as your favorites?

My judicial philosophy is best expressed in terms of engaging in the exercise of dynamic tension as described in the answer to question 11, followed by reaching what my intellect tells me is the right result when arrived at via thorough analysis. As for my favorite opinions, you'll no doubt remember the exchange in Mel Brooks' 2000 Year Old Man in which Carl Reiner as the interrogator asks Brooks if he has any children, to which Brooks responds: "Two thousand, and not one calls me on my birthday!"

In a sense my opinions are my children, except that they number more than 6,000 retrievable on Westlaw (including those at the appellate level in addition to my far more numerous District Court opinions), with that number being increased by a third when nonretrievable opinions are taken into account. Singling out a few favorite trees from that vast forest is well nigh impossible, but two opinions that I do recall with fondness are my dissents in Shaw v. Dow Brands, Inc., 994 F.2d 364, 371 (7th Cir. 1993) and Brown v. Phillip Morris Inc., 250 F.3d 789, 806 (3d Cir. 2001).

Shaw dealt with what I considered the impropriety of treating a litigant's pro forma pleading admission that the requisite amount in controversy existed for removal purposes as conclusive in establishing the existence of diversity jurisdiction, even in the face of actual evidence to the contrary (after all, litigants cannot confer federal jurisdiction by waiver if it is really lacking). Since then the Tenth Circuit has expressly approved my Shaw dissent and disapproved the majority holding, while the Second Circuit has viewed the Shaw majority view with skepticism while specifically noting my dissent (though the court was not called on to speculate as to its ultimate position under the circumstances before it).

As for Brown, it addressed what I perceived to be the improper dismissal under Rule 12(b)(6) of a complaint by African-Americans under 42 U.S.C. secs. 1981 and 1982 that tobacco companies had engaged in racial targeting in the marketing of mentholated tobacco products while at the same time concealing the companies' knowledge of the far greater dangers that those products posed to smokers' health.

But having spoken of those two opinions, I freely acknowledge that if I had the time (or inclination) to go back to review the decisional output of more than two decades, I'd very likely substitute (or at least add) some other candidates for the "favorite" label.

14. 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, I understand that you use an untraditional letter to send regrets to those applicants you have not chosen to hire. Please explain.

Because the self-selection process on the part of the many outstanding clerkship applicants carries the assurance of a universally high level of mental horsepower, I look for such things as a solid understanding of the English language and how to use it well, a good sense of humor and -- perhaps most important -- a really good human being. As I frequently say, I head up the equivalent of a three-lawyer law firm, one of much the same size as when I began at the bottom of a four-lawyer totem pole that made up the small firm that I joined after leaving law school 55 years ago. For that kind of relationship to be successful, it's essential to have people with whom you can work comfortably. So I rely heavily on faculty members whom I know well at a substantial number of law schools to give me their sense, or to learn from colleagues' views and then tell me, about the qualities of those applicants to whom I am giving serious consideration. Typically I winnow down the hundreds of applicants, all of whose materials I review personally, to no more than a half-dozen personal interviews, then choose two of those.

As for what you call an untraditional letter, I feel that the young people who take the trouble to apply deserve a personalized kind of response, so I try to frame my two types of letters -- one to those who appear to be in the special star category and to whom I'd therefore want to extend offers if I were a law firm's hiring partner, and the other to the rest of the applicants -- so as to convey my appreciation in a way that sounds sincere because it is.

15. You have expressed opposition to the proposed Federal Rule of Appellate Procedure that would allow litigants to cite to non-precedential opinions in all U.S. Courts of Appeals. But, with respect, some of the reasons that you offer are not persuasive. The proposed rule would not eliminate non-precedential opinions, and federal appellate courts would remain free to ignore non-precedential opinions if they so choose. Some of the federal appellate courts with which you have sat by designation -- the D.C., First, Third, and Tenth Circuits come readily to mind -- have decided to allow citation to non-precedential opinions without any untoward experiences, meaning that such opinions have not magically become precedential nor have they become more time-consuming to prepare. If you found a non–precedential Seventh Circuit opinion that your law clerk told you was directly on point to decide a question pending before you in the district court, would you refuse to take a look? And since such non-precedential opinions can as easily be found by federal district judges as any other legal researcher, why shouldn't the parties have a chance to discuss such rulings if they so choose?

As I write, the Judicial Conference's Advisory Committee on Appellate Rules has just voted for the adoption of proposed Fed. R. App. P. 32.1, which would abolish any restrictions on the citation of unpublished opinions and which in the most meaningful sense targets the concept of nonprecedential opinions. Although the enormous volume of comments received on the proposal (over 500 in number) demonstrate that there are cogent considerations on both sides of the debate, I tend to disfavor the real thrust of the change (though not its literal language) for both jurisprudential and practical reasons. For now I'll address just a couple of those.

But before I turn to those reasons, let me say that the form of the rule masks the true problem that it would generate. Mere citation as such obviously poses no concerns. After all, we regularly receive and consider citations from a wide range of sources: law review articles and (as, for example, in Brown v. Board of Education) social science works and input from other disciplines are only examples of those. So the rhetorical questions with which you conclude question 15 get easy affirmative answers. Instead I view the true difficulty as stemming from the goal sought to be accomplished by those who cite such opinions and what that in turn would presage for the preparation of the opinions themselves.

For me there is no better way to explain how legal precedent evolves than that contained in the late Edward Levi's small book titled Introduction to Legal Reasoning. That evolution rests heavily on being able to point to the similarities and dissimilarities between earlier cases and the one under consideration, a process that determines the direction in which legal concepts will be reshaped.

Having just completed a half-dozen nonprecedential opinions coming out of my sitting with the Third Circuit a month and a half ago (a rate of production that I could not possibly have managed, in addition to my other duties, if full precedential opinions had to be generated), I can tell you that such opinions frequently say little about the facts of the cases, because the audience for which we write -- the litigants themselves -- already knows them. That then enables the writing judge to devote just as much thought and care to analyzing the legal problems and writing about them as with precedential opinions, but with the expenditure of far less time -- a key consideration, given the high volume of cases with which Courts of Appeals must deal. Indeed, the writing is often bobtailed because less needs to be said to apprise the litigants of what the court is ruling and why. But the consequence of that different approach is to reduce materially the value and utility of nonprecedential opinions for the evolutionary development that I've described.

By contrast, if all opinions had to be written in the same manner as precedential opinions are prepared, the inevitable result would be a material reduction in their quality because of their sheer volume and the fact that judicial time is the scarcest resource in the justice system. And for me the other likely consequence -- that more opinions would then become the work product of law clerks rather than the Article III judges who sign them -- is both unthinkable and unacceptable.

16. Some appellate judges profess that the skills necessary to be a successful appellate advocate differ meaningfully from the skills needed to be a successful attorney in the trial court. In your experience as a judge, is this observation correct, and in what ways do the skills needed to excel in the trial court and on appeal differ or remain the same?

Because of the sharp decline in the number of trials in the federal District Courts, it really begs the question to speak of them as "trial courts." Instead I believe that in large part there is really no difference in the primary skills needed for success in the first two levels of the judicial system: keen analytical and language skills, together with the ability to convey effective legal analysis and argument in writing. And to the extent that oral (rather than written) effectiveness is involved, it is I think tautological to say that what will work well for examining and cross-examining witnesses, and for presenting matters to a jury, scarcely coincides with what will work in oral argument before a panel of judges.

17. The U.S. District Court for the Northern District of Illinois currently has two of the youngest federal district judges in the Nation. Both are comfortably below the age of 40. Is there some minimum age or level of experience that you believe it is necessary to attain before one can successfully serve as a U.S. District Court Judge or a U.S. Court of Appeals Judge?

My two newest colleagues, each of them extraordinarily able, fit the description in your question. By definition each has had far less experience than I did when I came to the court after 30 years as a true generalist -- not a trial lawyer -- in the private practice of law. But what you must realize is that no one comes to the District Court bench fully equipped to fill that role -- all of us have gaps of varying depths and widths to fill. What are therefore most important, as long as a new judge has the requisite intelligence and the other qualities that I've mentioned earlier, are the willingness and ability to fill those gaps through hard work and experience acquired on the job. That formulation, rather than the adoption of any bright line rules, seems to me to hold the key to success as a District Judge.

Ironically, in many ways the young judge is better suited to the appellate bench than to the District Court bench, in the sense that all of us have been accustomed to dealing with appellate opinions from our first days in law school. But in candor, I fear that the problem there lies in the fact that experience on the appellate bench never fills in the gaps with which the newly minted judge always comes burdened.

18. The Seventh Circuit has a rather unusual local rule whereby if a case on appeal is sent back for a new trial, the case is automatically reassigned to another U.S. District Judge. What, to the best of your understanding, is the rationale for that rule, does the rule make sense in your view, and why haven’t more federal appellate courts adopted such a rule?

It should first be made clear that Circuit Rule 36 in the Seventh Circuit calls for automatic reassignment only when reversal follows a full trial, not when a remand is ordered after a review and reversal of any other District Court order (as, for example, the grant of summary judgment). My guess, and it is only a guess, is that the rule stems from a concern that the trial judge might have a subliminal tendency to reinforce his or her earlier disposition of a case (for example, in the course of evidentiary rulings) in the handling of the second trial. At least I would hate to think that the rule stems from any distrust of what the District Judge might do other than by way of such unintended subliminal influence.

To the extent that your question amounts to asking whether I would vote for the adoption of such a rule if I were part of the rulemaking process, my answer would be "no" because I have greater confidence in a judge's ability to separate the past from the present. Indeed, it would strike me that any perceived concerns in this area would be more logically applied to situations in which, for example, the District Judge has previously granted summary judgment but the case must now be tried because the grant was erroneous.

19. You have received federal appellate court rulings that reverse your decisions as a trial judge, and you have written and joined in federal appellate court rulings that reverse the decisions of other trial judges. How can trial judges avoid taking it personally when their decisions are reversed or vacated? Does it make a difference how respected the federal appellate judge is who issued the ruling? And does a trial judge's reputation play any factor in an appellate court's review of a decision that has been appealed?

When I first joined our court, one of my colleagues was the late Joseph Sam Perry, who had been a merchant seaman during World War I and who came to law school, and thus began his legal career, quite late in life -- so that I thought of him as awfully old when I took the bench (though my perspective now, viewed through the lens of my own advanced years, would no doubt be different). Sam frequently said that he had never made a mistake as a judge, although he'd often been reversed.

For the most part I suspect that we District Judges take reversals personally only in the sense that we are often unconvinced by such reversals for any of a number of reasons, although there are of course other situations in which we may nod in agreement when reading a Court of Appeals opinion that reverses us. In the limited sense that I've described, it doesn't strike me as at all necessary for us to avoid that natural reaction.

As for the next part of your question, of course one's view of the quality of the author of a reversal affects which of the two reactions that I've just described takes place. And as to the last question you pose, my experience with Courts of Appeals elsewhere has been that the other judges on the panel will frequently express their views as to the degree of reliability they attach to particular judges whose work product they have been reviewing over the years -- and to that extent I believe that the review process may indeed be impacted by that sense of general reliability (or perhaps its absence).

20. What do you do for enjoyment and/or relaxation in your spare time?

For one thing, I'm a certifiable sports nut across a wide range of spectator sports (my last active sports participation ended when I gave up golf several years ago because the slow play tended to kill too much of the day on both Saturday and Sunday, though I stopped just when I was playing my best golf ever, having brought my weekend player's handicap down into single digits for the first time). Classic music (listening, not playing) has been an important part of my life ever since childhood, and I remain a life trustee of the Ravinia Festival Association after having been on its Board of Trustees for many years, culminating in its Vice-Presidency (of course I had to decline consideration for the Presidency because of the prohibition against participating in fundraising activities that applies to federal judges). Reading, both fiction and nonfiction, continues to occupy me a great deal, even though in a sense that's a busman's holiday from the great amount of reading that I must do in my judicial capacity. Most important, though, is the time that I spend with my wife and family -- children, grandchildren and now two great-grandchildren.
Posted at 00:00 by Howard Bashman



Sunday, April 18, 2004
"Judges: No relief for dogs at U.S. courthouse; Federal order warns against letting pets do their business on the grass." This article appeared Friday in The Austin American-Statesman.
Posted at 22:44 by Howard Bashman



Elsewhere in Sunday's newspapers: The Boston Globe reports that "Justices of the peace confront dilemmas on gay marriage; Opponents face wedding quandary." An article reports that "Iowa governor weighs fight on gay appointee." In other news, "Actors' HIV cases halt production in porn film industry." And in local news, "In Finneran's district, questions abound" and "Gangster's life lures host of storytellers; Bulger coterie eyes book and movie deals." Additionally, Saturday's newspaper contained articles headlined "US court approves Mass. redistrict plan; Minority backers applaud decision" and "In Finneran case, an unusual course."

The Los Angeles Times reports that "FEC Probing 2000 L.A. Gala for Hillary Clinton." An article from The Associated Press is headlined "A World Without Words, and Without Hope; Could a deaf, mute migrant understand the charge that she tried to kill her baby?" In regional news, "Tape Is Key to Jury Selection in Rape Trial." Columnist Dana Parsons has an essay entitled "A Molester Is Free -- That's Not All Bad." And letters to the editor appear under the heading "Credibility in the Courtroom." Saturday's newspaper, meanwhile, contained articles headlined "Bush Stand on Marriage Riles Gays in GOP; Stung by the president's pushing a constitutional ban on same-sex weddings, Log Cabin Republicans consider denying endorsement"; "Demand Broadens the Field of Terror Experts; Young, Internet-savvy consultants are making careers in an area once reserved for bookish academics; Critics worry they're just cashing in"; and "Suit Says Insurer Wrongly Denied Disability Claims; In whistle-blower case, ex-employee says Unum delayed, refused and ended benefits to meet financial targets; Firm denies any such scheme."

Finally for now, The Washington Times reports that "Romney on path to bar same-sex 'marriage.'" And Dale McFeatters has an op-ed entitled "Treating detainees fairly."
Posted at 22:22 by Howard Bashman



"A Daughter Discovers What Really Happened: At last, the Internet reveals how Al Palya died; Why had it been kept secret? Because the government wanted the legal right to be more secretive." This article will appear Monday in The Los Angeles Times. Part one of this two-part series, published in today's newspaper, can be accessed here.
Posted at 22:05 by Howard Bashman



Tonight's music selection: "Downfall" by Trust*Co (available for Real Player and Windows Media Player video and audio only).
Posted at 22:00 by Howard Bashman



"Supreme Court to hear Guantanamo cases": This article will appear in Monday's issue of Financial Times.
Posted at 19:55 by Howard Bashman



"Hikers Mark Creation of C&O National Park": The Associated Press provides this report. I previewed this hike last month in a post you can access here.
Posted at 17:39 by Howard Bashman



"'Just a good man to the core'; Colleagues, friends discuss the amazing career that made Judge Matthew Perry a 'hero'": This article appears today in The State.
Posted at 17:37 by Howard Bashman



"Death sentences by judges: Should they be thrown out? The Supreme Court will consider whether a 2002 death-penalty ruling should be applied retroactively." Warren Richey will have this article in Monday's issue of The Christian Science Monitor.
Posted at 17:35 by Howard Bashman



"Blessed and blind, and before the bar; A formidable courtroom contender, Ontario's Bill Van Atta embraces life with faith and a creed dedicated to family, career and community": This article appears today in The Oregonian.
Posted at 17:22 by Howard Bashman



"Generation Ambivalent: On the eve of the biggest abortion-rights march in a decade, organizers try to attract a younger crowd." The April 26, 2004 issue of Newsweek will contain this article.
Posted at 17:10 by Howard Bashman



Available online from The Harvard Law Record: Clinton Dick has articles headlined "Former clerks remember Marshall" and "HLS celebrates Brown; Why Brown was hard." And an editorial is entitled "Understanding Brown."
Posted at 17:07 by Howard Bashman



In Sunday's newspapers: In The New York Times, Linda Greenhouse has a Week in Review article headlined "The Imperial Presidency and the Constraints of the Law." A news analysis is headlined "Evaluating the 9/11 Hearings' Winners and Losers." An article reports that "N.R.A. Lashes Out at Kerry Over Terror and Gun Issues." In fashion, "Behind the Catwalk, Suspicion and Suits" and "On This Accessory, the Jury Isn't Out." In local news, "Spring in Trenton, Subpoenas in Bloom." The New York Times Magazine contains an interview with Kenneth Starr headlined "Life After the Report" and an essay by Christopher Caldwell entitled "No Politics Are Local" about the U.S. Department of Justice's impending battle against pornography. And an editorial is entitled "Bad New Days for Voting Rights."

The Washington Post reports that "Bush Stumps for Patriot Act; Kerry Assails Iraq Decisions" and "Cheney Tells NRA Kerry Will Target Guns; Speech an Effort to Regain Momentum Lost in Dispute Over Assault Weapons." In other news, "Tracing Douglas's Pioneering Footsteps, 50 Years Later." In local news, "Defendants Pay Dearly for Cheating Uncle Sam." David J. Garrow reviews Jonathan Rauch's new book, "Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America." Editorials are entitled "Capt. Yee's Muzzle" and "No Limits on Justice." And "Below the Beltway" columnist Gene Weingarten, in the Sunday Magazine section, has an essay entitled "Unappealing to a Higher Authority: The case of the Supreme Court v. the Supreme Being."

Finally for now, Law Professor Amy L. Wax has an essay entitled "The Threat in the Air: Is fear of 'stereotypes' really why blacks do poorly on tests?" online at OpinionJournal.
Posted at 16:30 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Judges on Little-Known Court Paid for Life"; "Bush Urges Renewal of Patriot Act"; "Johnnie Cochran Recuperating From Ailment"; "Georgia Passes Laws Limiting Protests"; and "Federal Charge Possible in N.D. Kidnapping."
Posted at 14:50 by Howard Bashman



Two reminders: Tonight at 11:30 p.m. eastern time on the Cartoon Network is the season premier of "Harvey Birdman, Attorney at Law." More details are available here.

And at midnight, I will be posting online here the April 2004 installment of "20 questions for the appellate judge." More details on this month's interview are available here, here, and here.
Posted at 14:20 by Howard Bashman



"Virtual porn still harms its subjects": Columnist David Giffels has this essay today in The Akron Beacon Journal.
Posted at 14:10 by Howard Bashman



"Ex-Staffers Sue Salvation Army over Religious Bias": Yesterday evening's broadcast of NPR's "All Things Considered" contained this report (Real Player required).
Posted at 14:07 by Howard Bashman



The War on Terror, in court and in the news: Today in The Washington Post, Charles Lane reports that "High Court to Hear 'Enemy Combatant' Cases; Lawyers for 16 Detainees at Guantanamo Bay Presenting Arguments Tuesday." The April 26, 2004 issue of Newsweek contains an article by Michael Isikoff and Daniel Klaidman headlined "The Road to the Brig: After 9/11, Justice and Defense fought over how to deal with suspected terrorists; How a new system was hatched." The April 26, 2004 issue of U.S. News & World Report contains an article by Chitra Ragavan headlined "Law in a new sort of war: 'Enemy combatants' line up to plead for legal rights before the nation's highest court." The Hartford Courant reports that "Court To Judge Rights Of 'Enemy Combatants.'" The Hearst News Service reports that "High court cases to define limits in war on terror." The Atlanta Journal-Constitution reports that "Guantanamo captives to get day in court this week." The Orlando Sentinel reports that "High court to review rights of detainees; At stake are powers Bush assumed in fight against terror after 9/11." Richard H. Kohn has an op-ed entitled "Courts must guard liberty in war" in The St. Louis Post-Dispatch. And Mark Curriden has an op-ed entitled "War fears spawned Supreme Court's biggest losers; Justices again face an executive branch arguing for national security" in The Dallas Morning News.
Posted at 12:30 by Howard Bashman



"First With the Scoop, if Not the Truth": The New York Times today contains this profile of the author of the blog "Wonkette."
Posted at 11:11 by Howard Bashman



"Nafta Tribunals Stir U.S. Worries": Adam Liptak today has this front page article in The New York Times.
Posted at 10:58 by Howard Bashman



"How the Death of Judy's Father Made America More Secretive: A plane crashes at the dawn of the Cold War, and the government seeks a special legal privilege; Its claim sows the seeds of the Patriot Act." This very lengthy article appears today in The Los Angeles Times. The LA Times indicates that it will publish a second article on this topic tomorrow.
Posted at 10:15 by Howard Bashman



"Lack of legal protections leads to hardships for Gay couples": The South Florida Sun-Sentinel today contains this article. And in The Oregonian today, Dave Reinhard has an op-ed entitled "Our not so gay debate about marriage."
Posted at 10:10 by Howard Bashman



"Confessions of a copyright warrior; The Bono factor: Is a dead musician's legacy interfering with free speech?" This essay by David Kipen, book critic for The San Francisco Chronicle, appears today in that newspaper.
Posted at 10:05 by Howard Bashman



"Abortion politics define Pa. race; Toomey draws support, donations from abortion opponents; Specter has tried to neutralize the GOP's most divisive issue": This article appears today in The Philadelphia Inquirer. The Los Angeles Times reports today that "GOP's Philosophical Rift Evident in Pennsylvania; Bush backs the centrist incumbent over the conservative challenger in a key swing state." And Alexander Sanger has an op-ed entitled "Senate is no protection for abortion rights; Bush could make a recess appointment to Supreme Court" in The San Francisco Chronicle today.
Posted at 10:02 by Howard Bashman



"High court to decide fate of refugee; Daniel Benitez, a Mariel refugee in indefinite detention, wants the U.S. Supreme Court to order his release": The Miami Herald today contains this report.
Posted at 09:57 by Howard Bashman



"Managed-care law doesn't bring flood of lawsuits": This article appears today in The Fort Worth Star-Telegram.
Posted at 09:51 by Howard Bashman



"Cell phone tossed out of court": The Associated Press provides this report.
Posted at 09:30 by Howard Bashman



Saturday, April 17, 2004
Coverage of yesterday's recess appointments: Reuters reports that "Bush Nominates, Appoints 24 to Various Posts."
Posted at 15:39 by Howard Bashman



Sex offender released from prison in Southern California fails to receive warm welcome in Washington State: The Los Angeles Times today reports that "Warrant Is Issued for Sex Offender; Police in Washington say Edward Harvey Stokes committed forgery when he applied for a driver's license using a phony address." The Seattle Post-Intelligencer reports that "Freed child molester sought; False address, birth date used, police say." And The Seattle Times reports that "Arrest warrant is issued for sex offender."
Posted at 15:37 by Howard Bashman



"Gay marriage battle hits court; A Multnomah judge promises a decision soon about the issue": The Statesman Journal of Salem, Oregon contains this report today. And The Oregonian today reports that "Gay debate challenges marriage laws; Those for and against same-sex marriages argue the intent of Oregon's founding fathers and constitutional vs. legislative remedies."
Posted at 15:34 by Howard Bashman



"Court clears justice of wrongdoing; Outcome of mobile-home case supposed to be faxed": The News Journal of Wilmington, Delaware today contains this article.
Posted at 15:31 by Howard Bashman



"High court may take up nudity ordinances": This article appears today in The Sarasota Herald-Tribune.
Posted at 15:30 by Howard Bashman



"Attorney: Diaz indictment 'outrageous'; Lawyers again press innocence of high court justice, wife, 3 others": The Clarion-Ledger today contains this article. And The Biloxi Sun Herald today reports that "Minor, Diaz lawyers blast new charges."
Posted at 15:29 by Howard Bashman



"Case could lead to resentencings for dozens of death row inmates": This article appears today in The Arizona Daily Sun.
Posted at 15:22 by Howard Bashman



"Lawyers sum up on 'partial-birth' abortion; Federal judge hears closing arguments in S.F. trial": This article appears today in The San Francisco Chronicle. Maura Dolan of The Los Angeles Times reports that "Abortion Test Case Trial Ends; The first of three federal hearings over the ban on so-called partial-birth procedures concludes." The Oakland Tribune reports that "Abortion case goes to judge; San Francisco trial on federal ban is the first of three in nation to wrap up." Claire Cooper, legal affairs writer for The Sacramento Bee, reports that "S.F. abortion trial waits for decision; Judge indicates that the 'partial-birth' ruling will not be national in scope." And in related coverage, Newsweek online contains an interview headlined "'All is at Risk': The outgoing head of a leading pro-choice group discusses the massive march planned on Washington this month and why the future of Roe v. Wade is anything but secure."
Posted at 15:10 by Howard Bashman



"Detention Cases Before Supreme Court Will Test Limits of Presidential Power": Linda Greenhouse will have this article in Sunday's edition of The New York Times. And Anne Gearan of The Associated Press reports that "High Court to Hear First Terrorism Cases."
Posted at 14:45 by Howard Bashman



"Driver's parents risk jail for silence; A judge sends Jennifer Porter's parents home to think over their refusal to answer questions about a hit-and-run, saying he could hold them in contempt of court": The St. Petersburg Times today contains an article that begins, "The parents of a young woman implicated in a hit-and-run accident that killed two children told a judge Friday they would rather go to jail than answer questions about their daughter's role in the collision." And The Tampa Tribune today reports that "Driver's Parents Refuse To Aid Hit-And-Run Probe."
Posted at 09:49 by Howard Bashman



"Unusual jurors glad they did their duty; Judge, hearing-impaired woman avoid making excuses, though they could have": This article appears today in The Ann Arbor News.
Posted at 09:46 by Howard Bashman



In Saturday's newspapers: The New York Times reports that "New York Loses a Top Legal Ally in Suit Over Guns." In business news, "Arguments Are Refined in Retrial of Ex-Banker" and "Big Auditing Firm Gets 6-Month Ban on New Business." In regional news, "Ex-Judge Is Spared Prison for Lies in a Federal Inquiry" and "Inmates Can Keep Money From PEN Literary Award." An article reports that "H.I.V. Cases Shut Down Pornography Film Industry." An article reports on "Uncovering an Interracial Literature of Love ... and Racism." And Verlyn Klinkenborg has an "Editorial Observer" essay entitled "The Recording Industry Soldiers On Against Illegal Downloading."

The Washington Post reports that "Blame in Evidence Dispute Turns to Lentz's Attorney." In other regional news, "Troublesome Juror Ousted In D.C. Drug Gang Trial" and "Warner Alters Measures On Feticide, Gay Marriage." In business news, "Ernst & Young Barred From Taking New Public Audit Clients" and "Prosecution Opens in 2nd Quattrone Trial." An article reports that "Republican Specter Challenged From the Right; Toomey Labels Senator a Liberal." In other news, "HIV Chills a Hot Skinflick Industry." Barbara Cochran has an op-ed entitled "Our Camera-Shy Courts." And a letter to the editor appears under the heading "Mistrials and Tribulations."
Posted at 09:25 by Howard Bashman



"Hale nodded to approve killing judge, informant says": This article appears today in The Chicago Sun-Times. And The Chicago Tribune reports that "Witness testifies Hale OKd hit; Defendant's nod detailed in court."
Posted at 09:17 by Howard Bashman



Friday, April 16, 2004
Elsewhere in Friday's newspapers: The Los Angeles Times contains an article headlined "Last-Ditch Bid to Stop Gay Marriage; Massachusetts governor seeks emergency stay to court's ruling allowing same-sex unions." In news from California, "Claim by Gov.'s Staff Was Unsupported; His campaign wrongly suggested a woman who accused him of assault had a criminal record." Maura Dolan reports that "Drug Firms Win Round on Labeling; Court rules that nicotine-replacement products do not have to carry state warnings that are stricter than U.S. requires" and "Inmate Hero Earned Reward, Court Rules; Man deserved a reduced sentence for saving a life, state justices decide." A front page article is headlined "Justice or Just Hysteria? A computer geek says he made a few drops of the poison ricin for kicks; In a post-9/11 U.S., it got him almost 14 years in prison." An article reports that "Freed Serial Molester Moves to Wash. State; The man released in Orange County after winning an appeal of his life-sentence conviction once told a therapist of more than 200 victims." In entertainment-related news, "Rapper Has Record, Now May Have Deal; Sources say Def Jam has signed Shyne, who is serving a 10-year prison term for assault" and "Courtney Love Faces Trial in Drug Case." And letters to the editor appear under the headings "Ashcroft Points a Finger at Clinton Administration" and "Drug War Was Just a Terror War Warm-Up."

The Boston Globe, in same-sex marriage-related news, reports that "Romney seeks authority to delay same-sex marriage; Legislature poised to reject governor's bill" and "Romney cites gay-marriage tangles." In other news, "Court opts not to delve into an affair of the heart." An article reports that "Finneran actions focus of US subpoena." An editorial is entitled "Romney's end run." And Pamela Wilmot has an op-ed entitled "Gerrymandering began here; let's end it here."

The Washington Times reports that "Romney moves to get vote on same-sex 'marriage.'" And C. Boyden Gray has an op-ed entitled "The maneuvering of Microsoft."
Posted at 23:50 by Howard Bashman



Available online at law.com: An article reports that "All-Stars Enlisted to Stop 9th Circuit Split." Marcia Coyle has an article headlined "'Patriot' Games." In news from Texas, "Plaintiff Who Lied About Age Loses Suit Against Abortion Clinic" and "Shifting Gears: Law practice doesn't always make for a perfect career." Finally, in news from New York, "Associate Gets Jail Time for Thefts From Firm, Colleagues."
Posted at 23:44 by Howard Bashman



"Minor, Diaz ask federal judge to dismiss judicial bribery charges": The Associated Press provides this report from Mississippi.
Posted at 22:31 by Howard Bashman



"Anti-affirmative action campaign in jeopardy": The Detroit Free Press today contains an article that begins, "Plagued by legal challenges, money woes and organizational dysfunction, the campaign to ask Michigan voters to end race and gender preferences in the November election is close to collapse."
Posted at 22:21 by Howard Bashman



"Louisiana Scrambles to Improve Public Defender's Office": Tonight's broadcast of NPR's "All Things Considered" contained this report (Real Player required).
Posted at 22:12 by Howard Bashman



"Supreme Court to examine Bush's policies on the war on terror": Stephen Henderson of Knight Ridder Newspapers has this report.
Posted at 22:03 by Howard Bashman



"Why Scalia has no need to recuse himself": Thomas Harms has this essay today in The Minneapolis Star Tribune.
Posted at 22:02 by Howard Bashman



Available online at Slate: Dahlia Lithwick has a jurisprudence essay entitled "Trials and Terrors: These are our banner terror trials?" And Timothy Noah has an essay entitled "Ted Olson vs. Partisanship: The solicitor general enters the Hypocrisy Hall of Fame."
Posted at 21:58 by Howard Bashman



En banc Fifth Circuit resolves whether restitution and forfeiture orders abate where a criminal defendant dies while his appeal is pending: You can access today's 9-6 ruling at this link.
Posted at 21:48 by Howard Bashman



Tonight's music selection: "Megalomaniac" by Incubus (available for Real Player and Windows Media Player video and audio only).
Posted at 21:40 by Howard Bashman



Lawsuit arising from My Lai Massacre filed too late, U.S. Court of Appeals for the Tenth Circuit holds: Today's opinion begins:
Plaintiffs appeal from the district court’s order dismissing their complaint on statute-of-limitations grounds. We affirm.

FACTS

Plaintiffs are residents of the Village of Son My, Quang Ngai Province, in the Republic of Vietnam. They bring this action on their behalf and as representatives of deceased victims and survivors of the My Lai Massacre. The My Lai Massacre occurred on March 16, 1968, during the Vietnam War, when members of the United States military allegedly committed atrocities, including murder, against civilian residents of the village of Son My (My Lai).

Plaintiffs filed this suit over thirty-two years after the fact, on October 12, 2000. They named a Utah defendant, Private Michael B. Terry, and several other American soldiers who allegedly committed violations of the Law of War. On September 23, 2002, the district court entered an order dismissing the entire action, with prejudice, on statute-of-limitations grounds.
You can access today's complete decision at this link.
Posted at 21:20 by Howard Bashman



"Closing arguments in San Francisco over federal abortion ban": David Kravets of The Associated Press provides this report.
Posted at 17:31 by Howard Bashman



"Alternative bill proposed to restrict abortion through state law": This article appears today in The Tennessean.
Posted at 17:16 by Howard Bashman



An illegal spring break in Florida? Possibly, insofar as the Florida Legislature itself is concerned. The St. Petersburg Times today contains an editorial entitled "Legislators' spring break."
Posted at 17:15 by Howard Bashman



In news from Connecticut: The Hartford Courant today contains articles headlined "'Dangerous Instruments' Debated; Intent, Location Considered In Arguments Before Supreme Court" and "Acquittees' Renewed Confinements Upheld."
Posted at 17:13 by Howard Bashman



"Supreme Court needs Scalia's bravado": Eric Wolkoff has this essay today in The Johns Hopkins News-Letter.
Posted at 17:09 by Howard Bashman



"'one nation under God'; Pledge's words continue to divide": This article appears today in The Express-Times of Easton, Pa.
Posted at 17:07 by Howard Bashman



Mattel wins Barbie-related appeal in the U.S. Court of Appeals for the Second Circuit: In the case decided today, Mattel alleged that Radio City Entertainment infringed Mattel's copyright in Barbie by creating a "Rockettes 2000" doll. The trial court tossed the case on summary judgment, but today's decision reinstates the lawsuit for trial. You can access today's ruling at this link.
Posted at 16:58 by Howard Bashman



Coming soon: At midnight on Monday, April 19, 2004, I will post online here the long-awaited April 2004 installment of "20 questions for the appellate judge."
Posted at 14:35 by Howard Bashman



Access online the U.S. Supreme Court's Hearing List for April 2004: The list is available here. The oral argument session starts on Monday, April 19, 2004.
Posted at 14:30 by Howard Bashman



"Challenge of a Fair Trial for White Supremacist": Today's broadcast of NPR's "Day to Day" includes this report (Real Player required). The report contains commentary from "Law Professor" Dahlia Lithwick. NPR warns that "This segment includes racial language that may be offensive to some listeners."
Posted at 14:16 by Howard Bashman



"Judicial Confirmation Symposium": JURIST has posted online a series of essays addressing the federal judicial confirmation process. Among the authors are Jack Balkin, Judith Resnick, Stephen Presser, and Michael Gerhardt. You can access the symposium at this link.
Posted at 14:06 by Howard Bashman



"Punslinging governor amends teenage nudist camp bill": The Associated Press provides this report from Virginia.
Posted at 13:00 by Howard Bashman



"Protest ordinance struck down; Law gave city officials too much power, appeals court says": This article appears today in The Augusta Chronicle. The Atlanta Journal-Constitution reports that "Protester's victory may affect summit." And The Savannah Morning News reports that "Federal appeals court rules against anti-protest ordinance like Savannah's."
Posted at 12:41 by Howard Bashman



"Abortion law heads for ballot; Florida legislators agree to ask voters to weigh a constitutional amendment requiring minors to tell their parents before they seek an abortion": The Miami Herald today contains this article. The Palm Beach Post reports that "Senate OKs amendment bill on parental notice." The South Florida Sun-Sentinel reports that "State Senate backs bill to put abortion measure on Nov. ballot." And The Tallahassee Democrat today contains an article that begins, "After a debate in which one senator brandished a coat hanger, another admitted to a teen pregnancy and a third disclosed incest, the Senate passed a bill Thursday paving the way for parents to be notified of a daughter's pending abortion."
Posted at 12:20 by Howard Bashman



"Michigan restricts how autopsy photos can be used; But the new limits are challenged as unclear": This article appears today in The Detroit Free Press.
Posted at 12:16 by Howard Bashman



"Arizona Case Could Lead to Resentencings": The Associated Press provides this preview of a case to be argued Monday in the Supreme Court of the United States.
Posted at 11:36 by Howard Bashman



"Rehnquist's take on 1876 election a missed opportunity": The Los Angeles Times today contains this review of Chief Justice William H. Rehnquist's new book, "Centennial Crisis: The Disputed Election of 1876."
Posted at 11:10 by Howard Bashman



"Flogging the Blogger: Howard Bashman Finds His Site Is Very Appealing to Parodist." Jason Krause, who had this profile of several law bloggers in the March 2003 issue of ABA Journal, today has this article in the ABA Journal eReport. One correction of the current article is in order -- I won't be blogging "full time" for Legal Affairs; rather, I'll continue to practice law full time and, as in the past, blog whenever the muse strikes and time permits.
Posted at 11:00 by Howard Bashman



"O Scalia, my Scalia": United Press International today has posted online this essay by Michael Kirkland, UPI's senior legal affairs correspondent.
Posted at 10:40 by Howard Bashman



"Court rule change on citations moves forward; Federal advisory committee votes to let lawyers point to unpublished appellate opinions": Yesterday's edition of The Oakland Tribune contained this article. The article quotes Ninth Circuit Judge Alex Kozinski as having stated on Wednesday, "There are more steps in the process and I'm quite confident this rule is not going to be enacted." Or, in the words of Monty Python's Black Knight, this week's vote was "just a flesh wound."
Posted at 10:30 by Howard Bashman



"Hale tapes take center stage; Informant urged supremacist to OK hit on judge": This article appears today in The Chicago Tribune. And The Chicago Sun-Times reports today that "Informant says Hale spoke in code seeking judge's death."
Posted at 10:27 by Howard Bashman



"The high court's enfant terrible": Law Professor Jonathan Turley has this op-ed today in The Chicago Tribune.
Posted at 10:10 by Howard Bashman



Chief Justice Thurgood Marshall: In response to this article published yesterday in The Harvard University Gazette, a reader emails, "Shouldn't people at Harvard know that he was not Chief Justice?" Update: The good folks at Harvard have corrected their error.
Posted at 10:00 by Howard Bashman



"Ex-attorney general speaks at Tulane; Meese blasts blocking of Bush nominees": The Times-Picayune today contains this report.
Posted at 07:14 by Howard Bashman



"State high court to review online speech case; Judges will decide if re-posting defamatory words is illegal": This article appears today in The Oakland Tribune.
Posted at 07:05 by Howard Bashman



"9th Circuit appears loath to intervene in tax case": The Las Vegas Review-Journal today contains an article that begins, "A federal appeals court seemed disinclined Thursday to intervene in a controversial Nevada Supreme Court tax ruling." That newspaper today also contains a related editorial entitled "Agosti won't run."
Posted at 07:02 by Howard Bashman



In Friday's newspapers: The Washington Post reports that "Romney Makes a Move in Gay-Marriage Battle; Mass. Governor Requests Power to Seek a Court Stay." In other news, "Augusta Protest Ordinance Struck Down; Court Rules Move To Restrict Burk's Group Was Illegal." An article reports that "Jury Chosen for Quattrone Retrial; Opening Statements May Start Today in Former Investment Banker's Case." In other news, "Special Counsel's Chief Is Assailed; Bloch Accused of Silencing Staff." In regional news, "Warner Aims to Lift Limit on Felons' Appeals." An editorial is entitled "The Wrong Target." And columnist Sally Jenkins has an essay entitled "As a Rule, Clarett Needs To Grow Up."

The New York Times reports that "Decision on Finance Rules Is Called Unlikely by May." In other news, "Charity's Request to Transfer Assets Is Opposed." An article reports that "Long After DNA Evidence, Death Row Inmate Wins New Trial." And in regional news, "Motion for Dismissal Is Rejected in Williams Manslaughter Trial"; "Appeal Questions Role of Son and the Police in '88 Killing"; "Time Eases Tough Drug Laws, but Fight Goes On"; and "Gambino Crime Boss or Not, Peter Gotti Gets 9 Years in Prison."
Posted at 06:22 by Howard Bashman



"Trial focuses on the technicalities; Visa regulations, Al-Hussayen's records at issue": Today's issue of The Idaho Statesman contains this report. And yesterday's broadcast of NPR's "Morning Edition" contained a segment entitled "Idaho Student on Trial for Aiding Terrorists Online" (Real Player required).
Posted at 06:20 by Howard Bashman



"Agosti will not run for second term": Yesterday, The Las Vegas Sun posted online an article that begins, "Justice Deborah Agosti, who wrote the controversial opinion permitting a tax increase without a constitutional two-thirds vote by the Legislature, said this morning she would not run for a second term on the Nevada Supreme Court."
Posted at 06:15 by Howard Bashman



"Remembering Thurgood Marshall: Former clerks of chief justice offer personal perspectives on one man's legacy." The Harvard University Gazette offers this report.
Posted at 00:33 by Howard Bashman



Thursday, April 15, 2004
"Hale guard went to cops over supremacist material": This article appears today in The Chicago Tribune. And The Chicago Sun-Times reports today that "Hale praises spree killer on tape."
Posted at 23:56 by Howard Bashman



Elsewhere in Thursday's newspapers: The Los Angeles Times reports that "Charges Against Chaplain Dismissed." Henry Weinstein reports that "La. Inmate on Death Row to Get New Trial; Prosecutors, who initially refused to follow the lead of a DNA test, reverse position." In regional news, "Overturned Murder Conviction Appealed; A verdict against a man in an Oxnard woman's slaying was voided over a Miranda rights issue" and "Politician's Trial Is Reinstated; Judges reject claim by an ex-Bell Gardens official that the city attorney called her actions legal." And an article reports that "Lil' Kim Charged With Perjury and Obstruction; The rapper is accused of lying to a grand jury about a shooting in 2001 outside of a New York radio station."

USA Today reports that "Gitmo chaplain's reprimand rescinded; General orders record to be cleansed."

The Boston Globe reports that "Finneran signals he won't try to block start of gay marriages." And in other news, "US probes drawing of Mass. districts; Records sought for grand jury."

Finally for now, The Washington Times reports that "Republicans see conflict, urge Gorelick to quit panel."
Posted at 23:50 by Howard Bashman



"Governor of Massachusetts Seeks to Delay Same-Sex Marriages": This article will appear in Friday's issue of The New York Times.
Posted at 23:48 by Howard Bashman



"Brown at 50": Eric Foner and Randall Kennedy have this essay online at The Nation.
Posted at 23:44 by Howard Bashman



"Federal appeals court hears Nevada two-thirds majority tax case": David Kravets of The Associated Press provides this report on an oral argument that a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit heard today.
Posted at 23:33 by Howard Bashman



"Panel urges rejection of judicial pay raises": This article appears today in The Honolulu Advertiser.
Posted at 23:20 by Howard Bashman



Available online at law.com: Jonathan Ringel reports that "Martha Burk Wins Augusta Speech Challenge; 11th Circuit ruling may lift bars for protesters of G8 Summit." An article is headlined "Married? Entitled to a Refund? Inquiring Justices Want to Know; State high court wants briefing on what to do if it rules against San Francisco on gay weddings." Shannon P. Duffy reports that "Ballard Spahr Survives Motion to Disqualify in ISP Porn Suit." In news from New York, "Media Face Backlash Over Tyco Mistrial" and "Industry Lawyers Argue WTC Was Underinsured." And in news from Florida, "Federal Judge Blasts U.S. Attorney Over Plea Deal."
Posted at 23:15 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Kenneth Starr Now a Lawyer and Dean." And in other news, "Mass. Gov. Makes Bid to Stop Gay Marriage"; "Judge Upholds Charges Against Greenpeace"; "Pregnant Prisoners in Labor Unshackled"; "Media Ruling Delayed in Smart Kidnap Case"; and "Woman Charged After Toilet Paper Claim."
Posted at 22:33 by Howard Bashman



En banc U.S. Court of Appeals for the Fifth Circuit issues 137-page qualified immunity ruling: As the ACLU of Texas explains here (final item), this case involves claims by two former police academy instructors who assert that police departments boycotted their academy after the instructors testified in support of the plaintiffs in an excessive force case.

Circuit Judge E. Grady Jolly wrote the most pithy dissenting opinion, explaining in full:
I respectfully dissent and agree with Judges Jones and Barksdale that the defendant law enforcement officers are entitled to qualified immunity and should be released from personal liability. It seems disingenuous to hold that the law is clearly established when it takes 20,467 words to explain, and when six United States Court of Appeals judges sharply disagree about it. To my way of reasoning, the majority has turned the words, and the doctrine, of "clearly established" on its head when it denies immunity in this novel case.
You can access the original three-judge panel opinion at this link. It is interesting to note that the author of today's majority opinion, Chief Judge Carolyn Dineen King, also wrote the panel decision, and one of today's dissenters, Circuit Judge Rhesa Hawkins Barksdale, was on the three-judge panel and joined in that earlier opinion.
Posted at 22:00 by Howard Bashman



"Court: Augusta Illegally Limited Protest." The Associated Press provides this report on a ruling that a divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit issued today. Each of the three judges on the panel wrote an opinion, and you can access all three opinions at this link.
Posted at 18:10 by Howard Bashman



Philadelphia Phillies 6, Cincinnati Reds 4: I had the pleasure of seeing my hometown Philadelphia Phillies win their first victory ever in their new ballpark this afternoon. After six and a half innings they were down 4-0, but they rebounded for two runs in the bottom of the seventh inning and tacked on four more runs in the bottom of the eighth. Then the Phillies called on closer Billy Wagner to do what he was brought to town to do, and he did, causing pinch hitter Barry Larkin to hit the ball on the ground into a game-ending double play. ESPN.com provides this recap of the game and this boxscore.

Thanks to all the readers who emailed along suggested questions for May 2004's "20 questions for the appellate judge" interviewee. Also, while I was out at least one additional appellate judge has expressed an interest in participating in the "20 questions" feature. And perhaps best of all, today I received via email the answers from this month's interviewee, and on a quick glance they appear to be very interesting and informative. This month's interview will appear online here at midnight on Monday, April 19, 2004. Stay tuned for a return to regular programming soon.

Update: I should also mention that today is Major League Baseball's first annual Jackie Robinson Day. You can watch at this link (Windows Media Player required) the video tribute that I saw earlier today.
Posted at 17:45 by Howard Bashman



"20 questions for the appellate judge" update: While I'm out of the office, I'd appreciate hearing via email from readers who wish to suggest questions for the May 2004 "20 questions" interviewee, Judge Richard B. Teitelman of the Supreme Court of Missouri. I will be forwarding the questions to him by the close of business tomorrow.

I'm also looking to acquire "20 questions" interviewees for July and August 2004. Here is how this works: I forward the questions in writing via email in the middle of the month before the interview is published, and the interviewee returns his or her answers to me in writing via email on the Friday before the first Monday of the month in which the interview is to appear. The interview is then published at midnight on the first Monday of that month. Volunteers for these months will, of course, have their interviews appear at this blog's upcoming new location, at the Web site of Legal Affairs magazine. To volunteer, simply contact me via email, and specify which month works better for you. Interview slots are filled on a first-come, first-served basis. After these two vacancies are filled, the next available month is November 2004, so if I receive more than two volunteers, I'll be back in touch to offer one of the vacancies further into the future. As before, should there come a month for which no one volunteers to be the interviewee, this blog's very popular "20 questions for the appellate judge" will finally have come to an end.
Posted at 10:15 by Howard Bashman



Taxing and spending: It's turning out to be a gorgeous day weather-wise here in the Philadelphia area, where we haven't seen the sun in quite some time. I'm just back from the Post Office, where I dispatched my 2003 tax returns and 2004 first quarter estimated tax payments. Unlike at Buchanan Ingersoll, where even shareholders are "employees" who have taxes withheld over twenty-four pay periods throughout the year, being on my own requires that I pay my 2004 estimated tax obligation in just four installments throughout the year. And each of those installments seems especially huge, but the only other lawful alternative -- to not have a thriving appellate practice -- is a far less attractive proposition.

In much happier news, I'm about to depart the office to attend this afternoon's Philadelphia Phillies game at brand new Citizens Bank Park. Today is only the second regular season game to be played there and the first "Business Person's Special." I'm especially fortunate to have a seat in section 123, which is just behind home plate. You can see the views from throughout the stadium via this link.

I'll of course be back later today to update this day's newsworthy law-related developments.
Posted at 09:40 by Howard Bashman



"State Supreme Court: Agosti won't seek re-election; Justice authored controversial decision on taxes." The Las Vegas Review-Journal today contains this article, which explains that "Last year, Agosti was the author of a controversial Supreme Court decision that found legislators could raise taxes without the support of two-thirds of the members of each chamber." The article also states that "A source said Agosti will attribute her decision to health problems."
Posted at 07:35 by Howard Bashman



"All charges dropped, but Army gags Yee": This article appears today in The Seattle Post-Intelligencer. And The Seattle Times reports today that "Army reverses reprimand, clearing chaplain's record."
Posted at 07:25 by Howard Bashman



"State High Court Seeks Briefs on Validity of Gay Marriages; San Francisco's lawyers are asked whether more than 4,000 unions should be nullified if the panel rules that the city exceeded its authority": Maura Dolan has this article today in The Los Angeles Times. And The San Francisco Chronicle today contains articles headlined "Court to decide if gay marriages valid" and "Newsom faces wrath of God, fundamentalist leaders say."
Posted at 07:20 by Howard Bashman



"Lawyers lay out case for, against Al-Hussayen; Was he a quiet grad student or cunning terrorist?" This article appears today in The Idaho Statesman.
Posted at 07:17 by Howard Bashman



In Thursday's newspapers: The New York Times reports that "9/11 Panel Comments Freely (Some Critics Say Too Freely)." In somewhat related news, "Charity Seeks to Transfer Money Frozen by Treasury." An article reports that "Amid a Forest's Ashes, a Debate Over Logging Profits Is Burning." In business news, "Judge in Banker Case Stands by Ban on Media Naming Jury" and "In a Lawsuit, U.S. Accuses a Tax Adviser of Fraud." And in regional news, "Old Revision of Drug Laws Is Readopted in Assembly"; "Still Agitating (Never Mind the Arthritis)"; "To Keep His 'H,' Herman Fought Like Heck"; and "Lil' Kim Denies Lying to a Grand Jury About a 2001 Shooting."

The Washington Post reports that "Saudi Student's Trial Opens in Idaho; Government Alleges 'Material Support' for Terrorism in Use of Internet." An article reports that "House Member Seeks Gorelick's Resignation." In other news, "Rallying for One Massive Rally; Abortion Rights Activists Hope to Descend on Mall in 'Historic' Numbers." An article reports that "U.S. Acts to End Web Site Tax Scam; Buyers Took Phony Deductions, IRS and Justice Dept. Say." And in local news, "Disorderly Conduct Trial Has Rough Start."

The Christian Science Monitor contains an article headlined "No, your husband is not deductible ... and other IRS tales; Claiming the cat spa or ugly suit? Amazingly, the IRS sometimes says yes." And in other news, "Blogs: Here to stay - with changes."
Posted at 06:50 by Howard Bashman



"State must pay $549,430 in Ten Commandments suit": This article appears today in The Birmingham News. And The Montgomery Advertiser reports that "State to pay legal fees of $549,000."
Posted at 06:40 by Howard Bashman



"Copyright in the Digital Age": Law Professor Lawrence Lessig participated in a Web chat online at The Washington Post's Web site on Wednesday afternoon. You can access the transcript at this link.
Posted at 00:25 by Howard Bashman



"The Interrogator": The CBS News program "60 Minutes II" has interviewed an interrogator who worked for the U.S. military at Guantanamo Bay, Cuba. Read all about it here.
Posted at 00:23 by Howard Bashman



"Clarence Thomas to speak at Ave Maria law commencement": The AP offers this news from Michigan.
Posted at 00:20 by Howard Bashman



Justice serving on Supreme Court of Nevada who wrote especially controversial tax decision announces she won't seek reelection: The AP provides this report.
Posted at 00:10 by Howard Bashman



"Calif. Supreme Court Weighs Gay Marriages": David Kravets of The Associated Press reports here that "The California Supreme Court indicated Wednesday it's mulling how to treat the 4,000 couples who were wed before last month's halt to the same-sex marriage spree in San Francisco."
Posted at 00:05 by Howard Bashman



Wednesday, April 14, 2004
Elsewhere in Wednesday's newspapers: The Los Angeles Times reports that "Ruling Aids Illegal Workers; Court says employers facing claims can't ask about immigration status in an effort to block damages." You can access Tuesday's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link. In other news, "Child Molester Wins Appeal, Disappears; Edward Harvey Stokes had admitted to more than 200 victims; Police wonder where he is." In news pertaining to the war on terror, "Ashcroft Cites Lapses Years Before 9/11; The attorney general faults the Clinton White House but finds himself having to defend his own commitment to fighting terrorism" and "Policy Altered on Terrorism Detentions; Immigrants can no longer be held indefinitely without evidence; The change stems from post-9/11 complaints and probe." In regional news, "Use of Rare Rule in Pot Case Helps County Pair; 'Lesser harm doctrine' is invoked as couple who grew marijuana get reduced sentences"; "Video Allowed as Evidence in Rape Trial; Footage purportedly shows three young men, including the son of a top O.C. lawman, raping a 16-year-old; Defense says it was altered"; and "Kin Get a Say in Cadaver Case; A court official tells attorneys for UCLA and donor families to work out details of a court order for the school's willed-body program." In business news, "Judge Issues Ban on Jurors' Names; The move by the jurist in Frank Quattrone's second trial comes after a Tyco panelist receives pressure to convict." An editorial is entitled "'No Fly' List Traps Innocent." Tom Hayden has an op-ed entitled "California's Prison System Needs Rehabilitation; A federal takeover may be necessary to end a culture of terror and brutality." And a letter to the editor appears under the heading "U.S. Doing What It Must at Guantanamo."

USA Today reports that "Ashcroft says Clinton's rules 'handcuffed' anti-terrorism." And DeWayne Wickham has an op-ed entitled "U.S. sets poor example when it comes to death penalty."

The Washington Times reports that "Ashcroft slams intelligence failures under Clinton." In same-sex marriage-related news, "Evangelicals prefer that states outlaw gay 'marriage'" and "Oklahoma abides by out-of-state adoptions by gays." And in news from Pennsylvania, "Senate race splits Republicans."

Finally for now, The Boston Globe reports that "Court overturns realtor's conviction."
Posted at 23:30 by Howard Bashman



"Defendant shot in courtroom fracas": The Philadelphia Inquirer today contains an article that begins, "A city deputy sheriff shot and critically wounded a defendant yesterday in the Criminal Justice Center after the man tried to attack the judge during a sentencing procedure."
Posted at 23:00 by Howard Bashman



"'Your brother Ted might be the Unabomber'; David Kaczynski recounts his anguish in solving the case": This article appears today in The San Francisco Chronicle. And The Contra Costa Times contains an article headlined "'No regrets' for Unabomber's brother."
Posted at 22:55 by Howard Bashman



Typhoon zaps Yap: The Pacific Daily News of Guam reports in Thursday's issue that "Hundreds left homeless in Yap." And yesterday that newspaper reported that "Bush declares Yap a disaster area." For those who wish to be able to yap intelligently about Yap, more information is available here.
Posted at 22:52 by Howard Bashman



What liberal law school student body? A reader connected to Yale Law School emails:
I write to you in your capacity as the foremost chronicler of the Supreme Court Bobble Head dolls. This evening at the Yale Law School, an auction on behalf of the Initiative for Public Interest Law had two relevant offerings: a Justice Stevens and a Chief Justice Rehnquist model. I can report that Justice Stevens went for $175, and the Chief Justice fetched $255.
Perhaps not the result one would expect at a public interest law auction. You can learn more at this link about the Initiative for Public Interest Law at Yale.

A one-year subscription to The Green Bag costs just $35. Be advised that the magazine has instituted a gift anti-arbitrage policy.
Posted at 22:35 by Howard Bashman



"Law School Celebrates Marshall's Legacy": This article appears today in The Harvard Crimson.
Posted at 22:22 by Howard Bashman



Available online from law.com: Tony Mauro reports that "Judicial Conference Group Backs Citing of Unpublished Opinions." Tony's article states, as I too had written in the first draft of this post, that only one member of the Advisory Committee on Appellate Rules of the U.S. Courts voted against the proposal. Later, however, I was reliably advised that District Judge T.S. Ellis III of the U.S. District Court for the Eastern District of Virginia, who was not present at the meeting when the vote was taken, voted against the proposal by proxy, making the vote 7-2.

In other news, "High Court Considers Religious Protection Under Title VII." An article reports that "9th Circuit Leans Toward Asylum for Rape Victim." In news from New York, "WTC Insurance Trial in Its Final Phase; Jurors urged to reject bid to 'exploit' attack's timing." And in news from Philadelphia, "Defendant Shot in Courtroom While Lunging at Judge; Episode is latest in a series of incidents causing officials to rethink staffing levels."
Posted at 22:05 by Howard Bashman



Do readers of "How Appealing" know more about Kansas City barbecue or the Supreme Court of Missouri? Before work took me to Kansas City, Missouri in January 2003, a multitude of this blog's readers kindly answered my call for barbecue restaurant recommendations in the Kansas City, Missouri region (see here and here).

This Friday, I will be forwarding a series of written questions to Judge Richard B. Teitelman of the Supreme Court of Missouri, who has agreed to be the May 2004 participant in this blog's "20 questions for the appellate judge" feature. I would welcome emails from readers who wish to suggest questions for Judge Teitelman. To initiate an email, simply click here.
Posted at 22:02 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Monument legal battle to cost Alabama taxpayers nearly $550,000"; "White Supremacists Banned From Dedication"; "Hockey Death Settlement Was $1.2 Million"; "Counter Clinton Library Wins Tax Break"; "Gun Collector Testifies at Nichols Trial"; "Florida Opens First Faith-Based Prison"; "Parental notice measure moves in full Senate"; and "Judges: Unnecessary institutionalization of patients an injustice" (plus access yesterday's ruling of the U.S. Court of Appeals for the Third Circuit at this link).
Posted at 19:00 by Howard Bashman



"Good advice: The law and love don't always mix well." "Get a room," The Daily Press of Hampton Roads, Virginia advises in an editorial published today.
Posted at 18:48 by Howard Bashman



"Florida moves closer to ban on executing murderers younger than 18": The South Florida Sun-Sentinel today contains this report. And The Miami Herald reports that "Death penalty ban for minors clears panel; A Senate committee approves a measure outlawing the execution of people who commit murder when they are younger than 18."

As I previously noted here, Florida voters in November 2002 amended that State's constitution to reduce the minimum eligibility age for the death penalty from seventeen to sixteen. The U.S. Supreme Court, in January 2004, agreed to decide whether the death penalty may be imposed for crimes committed before the offender reached eighteen years of age.
Posted at 18:00 by Howard Bashman



"Ruling riled Hale, court told; He wanted judge killed, aide says": This article appears today in The Chicago Tribune. And The Chicago Sun-Times today reports that "Hale loyalist turns on him at trial."
Posted at 17:53 by Howard Bashman



Seventh Circuit Judge Richard A. Posner examines the concept of gesture-free assault: You can access today's ruling -- in which Judge Posner explains that "Fact is often stranger than fiction because most writers of fiction try to make their stories plausible" -- at this link.
Posted at 17:22 by Howard Bashman



Imprisoned cancer scientist convinces U.S. Court of Appeals for the Seventh Circuit to reinstate his lawsuit complaining about second-hand tobacco smoke behind bars: You can access today's ruling at this link.
Posted at 17:00 by Howard Bashman



"Habeas Schmabeas: The 60-year-old case that will decide Guantanamo." Slate has just posted online this essay by Charles Lane, who covers the U.S. Supreme Court for The Washington Post. Chuck's essay is taken from his more detailed discussion of the matter, published in the Spring 2004 issue of The Green Bag.
Posted at 16:27 by Howard Bashman



BREAKING NEWS -- The Advisory Committee on Appellate Rules of the U.S. Courts approves proposed Federal Rule of Appellate Procedure 32.1, which would allow unpublished and non-precedential opinions to be cited to all U.S. Courts of Appeals: The Advisory Committee voted 7-2 in favor of the proposal, and I am advised by attendees at the meeting that Senior Third Circuit Judge Edward R. Becker yesterday provided especially persuasive testimony in support of the rule. There remain several steps in the approval process before the proposed rule will be allowed to take effect, but this decisive margin of approval speaks volumes about what good sense the proposed rule indeed makes.

Update: This post has been updated to reflect that two members of the Advisory Committee voted against the proposed rule. Apparently the second of those votes was cast by a member of the Advisory Committee who was not physically present at the meeting.
Posted at 16:04 by Howard Bashman



"Patently Obvious": If you've been looking for a patent law blog with images, you may enjoy this one.
Posted at 15:57 by Howard Bashman



"Larry Flynt and Online Porn Crackdown": Today's broadcast of NPR's "Day to Day" included this report (Real Player required).
Posted at 15:32 by Howard Bashman



Does a finding of liability under Rule 10b-5 in a private securities case require an award of damages? A unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit decided this question of first impression today and delivered bad news for the purportedly prevailing plaintiff.
Posted at 15:30 by Howard Bashman



Sex toys no longer for sale in Mississippi: The Clarion-Ledger today reports that "JPD cracking down on sex toy sales; High court recently upheld ban; merchants decry restrictions." My most recent earlier coverage of this topic can be accessed here and here.
Posted at 12:48 by Howard Bashman



In today's issue of The Hattiesburg American: An article headlined "Teacher says he warned media; 3 organizations say they never heard restriction" begins, "A Presbyterian Christian High School teacher said Tuesday he told members of the media covering a speech by U.S. Supreme Court Justice Antonin Scalia that they wouldn't be allowed to tape the event. But members of three news organizations at Scalia's speech said Tuesday they don't recall government teacher Jason Meaux's warning, which he says was made in a section of a gymnasium set aside for the media." In related coverage, "Scalia issues written apology." And an editorial is entitled "Scalia issues apology for tape seizure."
Posted at 12:35 by Howard Bashman



"Ohio high court: Release settlement in case of girl killed by puck." The Associated Press reports here that "A judge must release details of a financial settlement awarded to the mother of a girl who died after being hit by a puck at a professional hockey game, the Ohio Supreme Court ruled today." You can access today's ruling of the Supreme Court of Ohio at this link (Microsoft Word document).
Posted at 12:20 by Howard Bashman



"Lawmakers sting atheist with rejection": The Montgomery Advertiser today contains an article that begins, "Two Alabama lawmakers are in hot water with an atheist organization, which claims the legislators denied the group equal treatment by refusing to sponsor a 'rainy day' location for its planned rally at the Capitol just because its members don't believe in God." Such treatment likely would have been far less objectionable had it been directed toward a group that does not believe in rain.
Posted at 12:05 by Howard Bashman



"Appeals Court: Church music director not protected under human rights act." The Associated Press provides this report from Minnesota. You can access yesterday's ruling of the Minnesota Court of Appeals at this link. According to the opinion's syllabus, "A music director is a part of the church’s religious staff, and the Minnesota Human Rights Act does not protect such staff against discrimination and retaliation by the church as an employer if the discrimination and retaliation is based on the employee's sexual orientation."
Posted at 11:15 by Howard Bashman



Ten Commandments news: From Wisconsin, The La Crosse Tribune reports today that "Monument decision appealed." Additional information is available here.

From Indiana, The Chronicle-Tribune reports today that "Legal concerns prompt removal of Commandments; City attorney urged action."

And from Minnesota, The Duluth News Tribune reports that "Monument debate heads to court; The ACLU of Minnesota rejects the Duluth City Council's altered settlement."
Posted at 11:00 by Howard Bashman



Another school year, another pornography controversy for Indiana University at Bloomington: Yesterday's edition of The Indianapolis Star contained an article headlined "IU: Web exposure no cause for discipline; Racy photos posted of female student didn't violate code of conduct, dean decides." The Chronicle-Tribune reported yesterday that "IU won't punish Gas City teen for racy Web photos; Official: Matter private, did not exploit school." Last Friday, The Chronicle-Tribune reported that "Gas City teen defends racy Web photos; IU may decide on disciplinary action today."

The quite aptly named Indiana Digital Student, the university's student newspaper, has published articles headlined "University will not punish 'teen Keira'; Dorm room debutante did not violate code of conduct, agrees not to pose again in shower"; "IU to follow up on porn site; IUSA, students offer support for 'teen Keira'"; "Student Ethics to review dorm porn site; McKaig to discuss whether action can be taken by University"; and "IU investigates new dorm porn; Freshman runs money-making site out of Briscoe Quad." The student newspaper also recently published an editorial entitled "Baring it in Briscoe; New round of porn controversy finds IU with student Web site."

In the 2002-2003 academic year, the university was dealing with a separate incident, as The Associated Press reported in an article headlined "Indiana Univ. may sue over porn film shot on campus; Officials: We need to view movie before decision is made."
Posted at 09:50 by Howard Bashman



"Prospective jurors get a message": The Raleigh News & Observer today contains an article that begins, "When close to half of the 83 prospective jurors failed to report for duty Tuesday at the Durham County courthouse, Judge Abraham Jones had a solution: Order the no-shows to come in and explain themselves."
Posted at 09:32 by Howard Bashman



Who says the judges on the U.S. Court of Appeals for the Sixth Circuit don't agree on much: Today the Sixth Circuit issued its en banc ruling in a case that, according to the lead opinion, "addresses the meaning of 'adverse employment action' for purposes of Title VII." A total of thirteen judges participated in the decision, and the opinion contains the following line-up of how those judges voted:
GIBBONS, J., announced the judgment and majority opinion of the en banc court on all issues. The entire en banc court joined Parts I (Background) and III (Attorney’s Fees) of the majority opinion. Part II (Adverse Employment Action) of the majority opinion was joined by BOGGS, C. J., and KRUPANSKY, BATCHELDER, GILMAN, ROGERS, SUTTON, and COOK, JJ., and Part IV (Punitive Damages) was joined by MARTIN, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, and COOK, JJ. CLAY, J. (pp. 36-51), filed a separate concurring opinion joining Parts I, III, and IV of the majority opinion and writing separately as to Parts II and V, in which he was joined by MARTIN, DAUGHTREY, MOORE, and COLE, JJ. SUTTON, J. (pp. 52-85), filed an opinion concurring in Parts I - III and dissenting from Parts IV and V, in which he was joined by BOGGS, C. J., and KRUPANSKY, BATCHELDER, and ROGERS, JJ.
You can access today's decision at this link. I haven't yet had the chance to see whether today's opinions -- like some other recent en banc decisions that the Sixth Circuit has issued -- contain any exchanges of injudicious accusations among the judges.
Posted at 09:15 by Howard Bashman



"Jury chosen as terrorism trial opens; Potential jurors asked about Islam, technology": The Idaho Statesman today contains an article that begins, "It took most of a day but 14 people are positioned to judge whether former University of Idaho grad student Sami Al-Hussayen supported terrorists like Osama bin Laden."
Posted at 08:18 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Trial Could Be a Test of USA Patriot Act"; "No Danger in Letter Sent to Bryant Lawyer"; "Abuse of Detainees Spurs Homeland Changes"; and "Two Marines Face Trial After Iraqi Dies."
Posted at 08:16 by Howard Bashman



In Wednesday's newspapers: The New York Times reports that "F.B.I. Is Assailed for Its Handling of Terror Risks." In related coverage, "For Members of Panel, Past Work Becomes an Issue in the Present" and "Rule Created Legal 'Wall' to Sharing Information." In business news, "Media Told Not to Name Jurors in Retrial of Quattrone." In local news, "With Rowland Panel Missing Its Deadline, Lawmakers Are Expecting More Delays"; "Stateless, Man Avoids Deportation From U.S."; and "Spitzer Wants Wiretap Law to Include New Technologies." And an editorial is entitled "The Failed F.B.I."

The Washington Post reports that "Ashcroft's Efforts on Terrorism Criticized; Ex-FBI Official Doubted Priorities." In related coverage, "Passing the Blame in the Glare of the Spotlight" and "Top Secret-Keepers: What They Don't Know Can Hurt You." An article reports that "New Rules Shorten Holding Time for Detained Immigrants." Editorial writer Benjamin Wittes reviews Chief Justice William H. Rehnquist's new book, "Centennial Crisis: The Disputed Election of 1876." And John Borneman and Laurie Kain Hart have an op-ed entitled "An Elastic Institution: Gay matrimony may reflect the natural evolution of marriage, which is diverse across cultures and changing in our own history."
Posted at 06:45 by Howard Bashman



"Law exceeds city's power, lawyer says; He told the Pa. high court that Phila.'s same-sex benefits are an illegal attempt to redefine marriage": This article appears today in The Philadelphia Inquirer.
Posted at 06:30 by Howard Bashman



Tuesday, April 13, 2004
In Tuesday's newspapers: The New York Times reports that "9/11 Panel Is Said to Offer Harsh Review of Ashcroft." In other news, "Barred as Rivals, Doctors See Some Hospitals in Court." In other business news, "Judge Supports I.R.S. in Illegal Shelter Case" and "Executive Quits as Turmoil Continues at Coke." In news from Connecticut, "Rowland Panel Subpoenas 4 for Depositions" and "Lawyer Convicted in Corruption Scandal in Connecticut Seeks a New Trial." And in other local news, "Judge Weighs Motion in Williams Trial"; "To Judge, Poetic License Is Only Kind Artists Need"; "In Court, He's Judge, Lawyer and Director"; and "Soldiering On, Half-Century After Brown."

The Washington Post reports that "Ashcroft's Pre-9/11 Priorities Scrutinized." In other news, "New Law Hands Teaching Hospitals an Antitrust Shield; Plaintiffs' Attorneys Decry Pension Bill Amendment Curbing Suit Over Medical Residency System." In business news, "Taking Stand Poses Dilemma For Quattrone" and "Stress Test: Waiting for Judgment; Accused Executives Cope With Pressure Differently as Trials Approach." And a letter to the editor appears under the heading "Trials of Assembling a Jury."

USA Today reports that "Provincetown plans marriage licenses for non-Mass. gays."

The Los Angeles Times reports that "Microsoft's Ballmer Known as People Guy." Susan Jacoby has an op-ed entitled "A New Meaning for 'Bully Pulpit.'" And a letter to the editor appears under the heading "Majority Should Not Decide on Gay Marriage."
Posted at 23:00 by Howard Bashman



In other news from Florida: The Orlando Sentinel reports that "Newspapers drop lawsuit seeking photos of Earnhardt autopsy." And The Associated Press reports that "Florida Senate committee OKs bill to set 18 as minimum age for execution."
Posted at 22:58 by Howard Bashman



Legislative recess raises a different sort of controversy in Florida: The St. Petersburg Times today contains an article headlined "One recesses, one adjourns; jointly, a mess; Constitutional experts say the work of the session could be imperiled; But state lawmakers say they don't have a problem." And The Orlando Sentinel today reports that "Legality of lawmakers' vacation questioned; Democrats said they fear a crisis, but GOP leaders disagreed."
Posted at 22:53 by Howard Bashman



In tomorrow's issue of The Hill: An article reports that "Asbestos bill will fail, says author Hatch." And in other news, "ACU calls for rehire of Miranda."
Posted at 22:44 by Howard Bashman



"New chief justice aiming for judicial reforms": This article appears today in The Clarion-Ledger of Mississippi.
Posted at 22:40 by Howard Bashman



"Slate's Jurisprudence: Update on Sept. 11 Lawsuits." Today's broadcast of NPR's "Day to Day" included this interview (Real Player required) with Dahlia Lithwick.
Posted at 22:34 by Howard Bashman



Today's Ten Commandments news, part two: In addition to the news I noted earlier here, The Associated Press reports from Indiana that "Commandments battle turns to legal fees."

And in news from Wisconsin, The AP reports that "Organization files appeal over Ten Commandments monument." The organization in question is the American Center for Law and Justice, which today issued a press release entitled "ACLJ Asks Federal Appeals Court to Overturn Decision Ordering Removal of 10 Commandments Monument in La Crosse, Wisconsin." You can access the ACLJ's appellate brief filed in the U.S. Court of Appeals for the Seventh Circuit at this link.
Posted at 22:31 by Howard Bashman



Available online from law.com: An article is headlined "Will Wine Dispute Bear Fruit? Wine industry tangles with 36 state AGs over state sales regulations." In other news, "Philadelphia: Life Partners Law Not Meant to Create Equivalence of Marriage." An article reports that "Stricter Sentencing Law Retroactive, 2nd Circuit Rules; De novo review mandate applies to cases pending before law's passage." And an article is headlined "The Graduates: For the class of 2004, economic uncertainty has meant a much tougher path to a first job."
Posted at 22:02 by Howard Bashman



"Panel obeys race case ruling; Canvassers rescind approval of racial preference petitions; appeal is pending": The Detroit News reports here today that "The state elections board on Monday rescinded its approval of the petition seeking a constitutional ban on the use of racial preferences in university admissions and state hiring."
Posted at 20:01 by Howard Bashman



"Mother challenges school over plaque": An article published today in The Kansas City Star begins, "For six years, no one paid much notice to a Ten Commandments plaque on the wall of the Humansville school cafeteria, where students from grades one through 12 dine. But when the mother of an 11th-grader filed a federal lawsuit to have it permanently removed, the plaque grabbed the attention of students, parents, lawyers and the community."
Posted at 19:59 by Howard Bashman



"Many gay couples partners in love, but not in benefits; Battles loom over rights regarding health, adoption": The Detroit Free Press today contains this report.
Posted at 19:47 by Howard Bashman



"District Judge Resigns Over Golf Game": This article appears today in The Korea Times.
Posted at 19:45 by Howard Bashman



"Supreme Court justice shares memories, motivations": The Oklahoman contains this report on Justice Sandra Day O'Connor's visit yesterday to Oklahoma City University.
Posted at 19:41 by Howard Bashman



"Court blocks execution of Texan with low IQ": The Associated Press reports here that "A former roofer won a reprieve from a federal appeals court today hours before his execution, based on an appeal that contends the convicted murderer is mentally retarded, making him legally ineligible to be put to death."
Posted at 19:15 by Howard Bashman



Today in the Supreme Court of Pennsylvania: I had the pleasure of spending today viewing oral arguments before the Supreme Court of Pennsylvania. In addition to the case that caused me to be present, there were two other quite interesting cases argued.

In one, the question presented was whether Philadelphia's decision to extend benefits to "life partners" of homosexual employees of the City of Philadelphia unlawfully encroached on the Commonwealth of Pennsylvania's exclusive power to define marriage. The Commonwealth Court of Pennsylvania ruled against the City of Philadelphia in an opinion you can access here. The Supreme Court of Pennsylvania's order granting review of that decision is available at this link. The individual who brought this court action figured prominently in an article that The Los Angeles Times published on March 8, 2004 headlined "Scalia Addressed Advocacy Group Before Key Decision." [Update: The Associated Press reports that "State Supreme Court hears arguments over Phila. same-sex partners law."]

In the other, the question presented was whether an attorney's act of providing a member of the press with a document that the attorney filed in court is covered by the same absolute privilege against liability for defamation that applies to the filing of papers with a court in the course of litigation. In other words, if a lawyer files a brief in court that contains defamatory comments about a third-party, the third-party cannot sue the lawyer for the act of filing the brief in court. The question that this case presents is whether, if a newspaper reporter asks the lawyer to email a copy of the brief to save the reporter the effort involved in traveling to the courthouse to review the brief as filed, and the lawyer then provides the reporter with a copy, can the lawyer be liable to the defamed party even though the lawyer would have faced no liability had the reporter reviewed the brief in the casefile at the courthouse. In the Internet age, this raises even more interesting questions than before. Today many courts themselves post online briefs that lawyers have filed -- take, for example, the U.S. Courts of Appeals for the Seventh and Eighth Circuits. Would it make sense to allow a lawyer to face liability for defamation for posting a brief he has filed in the Seventh Circuit online at his law firm's Web site when the same brief is accessible to all from the Seventh Circuit's Web site, and the lawyer would face no defamation liability if the brief were exclusively accessed directly from the court?

The case that I was present for was the final case argued today, and the oral argument did not conclude until after 3:30 p.m. As a result, I was unable to get to Washington, DC this afternoon to report on today's meeting of Advisory Committee on Appellate Rules of the U.S. Courts.
Posted at 18:40 by Howard Bashman



U.S. Court of Appeals for the Fifth Circuit rejects state law claim that Delta Air Lines should provide passengers with more leg room: You can access today's ruling at this link. The decision makes clear that passengers who get hit on the head by bottles of rum falling from an overhead storage bin can still assert a viable state law claim.
Posted at 17:45 by Howard Bashman



The trademark "freebies" turns out not to have been worth anything: This decision, which a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued today, demonstrates that when it comes to "freebies," you sometimes don't get what you pay for.
Posted at 17:35 by Howard Bashman



"Scalia Learned His Lesson From Erasure": The Associated Press provides this report. And The Hattiesburg American today reports that "Scalia changes press policy; Justice to apologize to reporters"; "U.S. marshals review protest from American"; and provides a news update headlined "Scalia sends letter of apology."
Posted at 17:15 by Howard Bashman



One week from today, "How Appealing" will be published at a new address: I am overjoyed to announce that beginning on Tuesday, April 20, 2004, "How Appealing" will be hosted at the Web site of Legal Affairs magazine. All content published here before that date will remain accessible here, so if you have ever linked to "How Appealing," those links will continue to function. Early on the morning of April 20th, I will post at the top of this page this blog's new address.

Why move "How Appealing" to the Web site of one of this Nation's truly outstanding law-related magazines? As readers know, I have been looking for a more reliable Web host. Legal Affairs is written and produced by top-notch journalists whose work I greatly respect, and they have the same level of respect for this Web log. As for specifics, "How Appealing" will retain its title, I will remain this site's sole author, and my postings will continue to appear whenever and however I choose with no advance review from anyone. I will also be receiving a payment for hosting rights and will be listed as "contributing editor" on the publication's masthead, in print and online. But the best news for you, the reader, is that this site will remain accessible free of charge and will be more reliably available than it has ever been.

Those who wish to learn more about Legal Affairs magazine can do so at this link. Access to the current issue is available here and access to earlier issues is available here. And best of all, both Legal Affairs and "How Appealing" will be turning two years old in May 2004, allowing us to celebrate our snarky toddler years together. If any readers have questions that I have not addressed here, please feel free to ask them via email.
Posted at 06:20 by Howard Bashman



On today's agenda: Work will have me out of the office, and away from the computer, for this morning and perhaps part of this afternoon. I will be at the Philadelphia courtroom of the Supreme Court of Pennsylvania in connection with the oral argument of this case. You can learn a bit more about the case in this post from last month.

The case is listed as the sixth of seven cases to be orally argued today, which may mean that the case will not even be heard until this afternoon. If the case is called for oral argument after lunch, it will be impossible for me to be present for any part of today's meeting in Washington, DC of the Advisory Committee on Appellate Rules of the U.S. Courts. I have previewed that meeting in posts you can access here, here, here, and here. The good news, however, is that several "How Appealing" readers will be present for all of the meeting, and if I am unable to attend I should still be able to report second-hand on what transpires there today.
Posted at 06:10 by Howard Bashman



"Ex-Kennedy staffer faces ethics case": The Washington Times today contains an article that begins, "A conservative watchdog group plans to file a formal ethics complaint today against a former Judiciary Committee staffer to Sen. Edward M. Kennedy, arguing that the lawyer tried to influence a landmark affirmative action case in which she had participated." And The Wheeling News-Register today contains an editorial entitled "Liberals Go Too Far On Judicial Process."
Posted at 06:08 by Howard Bashman



"Scalia Apologizes for Erasure Of Reporters' Tapes of Speech; Justice Vows to Permit Recordings by Print Journalists": Charles Lane has this article today in The Washington Post. And David G. Savage has an article headlined "Scalia Apologizes Over Tape Incident; The Supreme Court justice tells a reporters group he didn't order recordings to be erased; He says future speeches may be taped" today in The Los Angeles Times.

The New York Times today contains an editorial entitled "Justice Scalia's Apology." Also published today, The Denver Post contains an editorial entitled "Do the right thing - again." The Philadelphia Inquirer contains an editorial entitled "Scalia and the Press." The Charlotte Observer contains an editorial entitled "Scalia and the free press; Justice's aversion to having his speeches recorded is silly." The Palm Beach Post contains an editorial entitled "Scalia reversing himself?" The Times-Picayune contains an editorial entitled "Retroactive ground rules." The Press Journal contains an editorial entitled "Imperial justice." And columnist Tom Teepen has an essay entitled "When Scalia talks, press tape-records at its peril" today in The Minneapolis Star Tribune.
Posted at 05:50 by Howard Bashman



Monday, April 12, 2004
Elsewhere in Monday's newspapers: The Boston Globe reports that "Gay-marriage license rules sought; Out-of-state queries beset clerks' offices."

The Los Angeles Times reports that "Proposed Law Would Limit Police Chases; Legislation put forward by a Republican state senator has provoked law enforcement unions, which threaten political retaliation."

And in The Washington Times, Steve Chapman has an op-ed entitled "Privacy for jurors?"
Posted at 23:00 by Howard Bashman



"After Ruling, 3 Universities Maintain Diversity in Admissions": This article will appear Tuesday in The New York Times.
Posted at 22:44 by Howard Bashman



"Judges' fury over pay rebuff": Tuesday's issue of The Age of Melbourne, Australia contains this report.
Posted at 22:43 by Howard Bashman



In news from Alabama: The AP reports that "Male inmates sue state seeking same-sex marriage behind bars."
Posted at 22:25 by Howard Bashman



"Appeals court rules against furniture makers' lawsuit": The Associated Press provides this report on a decision that I noted here this morning.
Posted at 22:19 by Howard Bashman



Available online at law.com: Tony Mauro has an article headlined "Rewind Tape: Scalia Apologizes Over Confiscated Recordings." In other news, "Federal Judge Keeps New York City's Gun Suit Alive." And an article reports that "Court Bounces Cager's Claims That Caustic Coach Did Emotional Harm; N.J. Tort Claims Act's verbal threshold lets the air out of a $1.5 million verdict."
Posted at 22:14 by Howard Bashman



"Scalia Apologizes for Seizure of Recordings": Tomorrow's edition of The New York Times will contain this article by Adam Liptak.
Posted at 22:01 by Howard Bashman



"Scalia apologizes for seizure of reporters' tapes": Joan Biskupic will have this article in tomorrow's issue of USA Today.
Posted at 21:14 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Hearing Set for Unocal Human Rights Case"; "Bryant Prosecutor's Office Evacuated"; and "AP Interview: Sen. Specter Defends Record."
Posted at 21:10 by Howard Bashman



"Fox leaves henhouse for bench": John Aloysius Farrell, Washington bureau chief for The Denver Post, had this column about Ninth Circuit nominee William Gerry Myers III in yesterday's newspaper.
Posted at 19:21 by Howard Bashman



"First-Ever Gay Registry Under Fire": Today's broadcast of NPR's "Day to Day" included this report (Real Player required).
Posted at 19:17 by Howard Bashman



Alleged dirty bomber Jose Padilla argues that the U.S. Court of Appeals for the Second Circuit was correct to rule in his favor: Today counsel for Jose Padilla filed in the Supreme Court of the United States their brief of respondent on his behalf. The law firms of Jenner & Block and Wiggin & Dana have both set up resource centers providing access to briefs filed in the case. The Wiggin & Dana site already offers links to many amicus briefs filed today in support of affirmance.
Posted at 19:06 by Howard Bashman



"Marshal, Marshal, Marshal: Scalia's goon squad." Dahlia Lithwick has this essay online at Slate.
Posted at 18:57 by Howard Bashman



"Habitual felon law could change; Panel proposes lesser sentences": This article appears today in The Raleigh News & Observer.
Posted at 17:48 by Howard Bashman



"State panel withdraws approval of anti-affirmative action petitions": The Detroit Free Press provides this news update.
Posted at 17:44 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "Scalia Apologizes for Recording Erasure." And in other news, "Anti-Affirmative Action Petition Rejected"; "White Supremacist Trial Opens in Chicago"; and "Barr Tries to Revive Clinton-Flynt Suit."
Posted at 17:35 by Howard Bashman



"The Law That Dare Not Speak Its Name": My appellate column for April 2004, published today in The Legal Intelligencer, addresses what the Advisory Committee on Appellate Rules of the U.S. Courts should do in response to the record number of comments received in opposition to proposed Federal Rule of Appellate Procedure 32.1, which would allow unpublished and non-precedential opinions to be cited to all U.S. Courts of Appeals.
Posted at 17:00 by Howard Bashman



"Scalia changes press policy; Plans to apologize to American reporter": The Hattiesburg American offers this news update. And today's issue of that newspaper contains an editorial entitled "Incident raises key questions."
Posted at 15:57 by Howard Bashman



"RTNDA Asks Justice Scalia To Give Electronic Journalists the Same Rights as Print Journalists": The Radio-Television News Directors Association today issued this press release.
Posted at 15:55 by Howard Bashman



BREAKING NEWS -- "Justice Scalia apologizes to reporters for marshal's interference during speech": The Reporters Committee for Freedom of the Press has issued this press release. You can access a copy of Justice Antonin Scalia's letter to the organization at this link. (Thanks much to the reader who emailed to draw this news to my attention.)
Posted at 15:30 by Howard Bashman



U.S. Court of Appeals for the Fourth Circuit announces ruling in Denny's, Inc. v. Cake: For those concerned that the Denny's restaurant chain was at risk of unduly limiting its dessert offerings, I'm pleased to report that today's case actually involves whether ERISA preempts a claim by officials in California that the restaurant's vacation pay practices violate California's labor law. You can access today's decision at this link.
Posted at 15:00 by Howard Bashman



"Major Terrorism Cases Await High Court": Anne Gearan of The Associated Press provides this report. And in related coverage from The AP, "No One Likely to Leave Court Bench" and "Cases Left for Supreme Court to Hear."
Posted at 14:37 by Howard Bashman



Maryland's highest court teaches University of Maryland students an expensive lesson on sovereign immunity: Today the Court of Appeals of Maryland, that State's highest court, ruled 5-2 that sovereign immunity prohibited University of Maryland students from suing over a mid-year tuition increase even if that increase constituted a breach of contract between the university system and the students. You can access today's ruling at this link.
Posted at 12:21 by Howard Bashman



Access online summaries of the comments received on all of the proposed pending amendments to the Federal Rules of Appellate Procedure: The Advisory Committee on Appellate Rules of the U.S. Courts is scheduled to meet tomorrow in Washington, DC to consider the public comments received on the proposed amendments published in August 2003 and to consider whether to advance the amendments to the next step in the approval process. I have previously linked here and here to drafts of a summary and recommendation prepared by Law Professor Patrick J. Schiltz, the reporter for the Advisory Committee on Appellate Rules, focusing on two of the more controversial proposed amendments.

This morning I received from the Administrative Office of the United States Courts what probably is the final version of Professor Schiltz's report (108-page PDF file). It addresses the comments received on all of the pending proposed amendments. One controversial amendment that earlier drafts of this report did not address, but the current version does address, is the amendment that will provide uniform page-limits in cases involving cross-appeals. My summary of, and views on, all of the pending amendments can be accessed here.
Posted at 12:00 by Howard Bashman



Curiously, no one had this tape recording erased: On March 1, 2004, Justice Stephen G. Breyer celebrated what would have been the 100th birthday of Theodor Geisel by reading to children at the library of the U.S. Supreme Court building from the book "Marshall, the Courthouse Mouse: A Tail of the U.S. Supreme Court." You can see Justice Breyer bedecked in both a Cat in the Hat hat and a Cat in the Hat tie on a recent broadcast of C-SPAN's "America & the Court." Simply click here and then advance 34 minutes into the broadcast to see the segment (Real Player required). This is not the first year that Justice Breyer has donned the Cat in the Hat hat, as this photograph from 2003 confirms.
Posted at 10:55 by Howard Bashman



View online archived video of last week's Senate Judiciary Committee subcommittee hearing on whether to split the U.S. Court of Appeals for the Ninth Circuit: Via C-SPAN, you can access here (Real Player required) streaming video of all of last week's hearing. This video will be available online for only ten more days. The entire broadcast lasts three hours and seven minutes.
Posted at 10:45 by Howard Bashman



"Plan may boost black role on VU law journals": The Tennessean reports here today that "African-American law students at Vanderbilt University could be better represented on the staffs of the Law School's three student-run journals under a plan faculty members are expected to finish debating today"
Posted at 09:41 by Howard Bashman



A captive source of labor: Today a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued an opinion (PDF format here; HTML format here) that begins, "This appeal draws the court into the longstanding conflict between the government’s policy of employing federal inmates in the manufacture of goods and the challenges faced by the private industries compelled to compete with inmate-produced wares." Later, the opinion notes that "the issues raised in this appeal are matters of first impression among the courts of appeals." District Judge Peter C. Economus, sitting by designation from the U.S. District Court for the Northern District of Ohio, wrote the opinion, in which Circuit Judge Ronald Lee Gilman joined. Circuit Judge Julia Smith Gibbons concurred only in the judgment but did not issue a separate opinion.
Posted at 09:30 by Howard Bashman



"Justice Scalia wrong to muzzle media at speech": This editorial appears today in The Jackson Sun. The Los Angeles Times today contains an editorial entitled "The Justice in the Bubble." The Las Vegas Review-Journal today contains an editorial entitled "A U.S. marshal breaks the law; During Scalia speech on constitutional rights -- how embarrassing." The Ledger today contains an editorial entitled "The Bashful Justice." And The Fort Worth Star-Telegram contains an editorial with the curious title "Next step: blogs?"
Posted at 09:20 by Howard Bashman



"The Pledge, The Left, and The Courts: Has the Left Overplayed Its Hand?" Phyllis Schlafly has this essay today at Human Events Online.
Posted at 09:10 by Howard Bashman



"It's Time For Bush To Take Treaty Obligations Seriously": Stuart Taylor Jr. has this essay in today's issue of National Journal.
Posted at 09:03 by Howard Bashman



"High court to consider Ariz. case; Death sentence timing at issue": This article appears today in The Arizona Republic.
Posted at 07:05 by Howard Bashman



"Federal court to consider Nevada Constitution question": The Las Vegas Review-Journal today contains an article that begins, "A federal court will hear arguments Thursday stemming from the controversial Nevada Supreme Court ruling that sought to remedy last year's legislative budget stalemate by setting aside a state constitutional amendment. A panel of the 9th U.S. Circuit Court of Appeals, meeting at the Stanford University Law School, will consider whether the U.S. District Court erred in dismissing the case brought July 14 by 24 Republican lawmakers and others after the 6-1 state Supreme Court ruling."
Posted at 07:02 by Howard Bashman



"U.S. military opens doors, sheds light on Cuba camp; The U.S. military is allowing more media access to the prison for terrorism suspects at Guantanamo Bay, Cuba": This article appears today in The Miami Herald.
Posted at 07:00 by Howard Bashman



In Monday's newspapers: The New York Times contains an article headlined "In a Banker's Retrial, Evidence the Jury Will Not Hear." Rebecca Johnson has an op-ed entitled "C-Sections and the Real Crime." And letters to the editor appear under the heading "Women, Respect and Abortion."

And in The Washington Post, Al Kamen's "In The Loop" column is entitled "Tale of the (Scalia) Tapes."
Posted at 06:45 by Howard Bashman



Sunday, April 11, 2004
In Sunday's newspapers: The Boston Globe, in same-sex marriage-related news, contains articles headlined "Weeks ahead crucial for foes, supporters of gay marriage" and "A firm voice against gay marriage; For Colo. lawmaker, it's an article of faith." And in other news, "Senate surprise: Democrats pulling ahead in close races."

The Los Angeles Times reports that "Acceptance of Gays Rises Among New Generation; But a slim majority of Americans still oppose adoptions by same-sex couples and favor a constitutional ban on homosexual marriage." In other news, "La Habra Next Battle for Strip Club Owner; Officials vow to defend city laws against the proprietor who received a $2-million settlement from Anaheim over an adult cabaret there." Barry Krisberg reviews Joe Domanick's new book, "Cruel Justice: Three Strikes and the Politics of Crime in America's Golden State." And a letter to the editor appears under the heading "Prisoners' Rights."

The Sunday Book Review section of The New York Times contains two items of interest today. David Herbert Donald reviews Chief Justice William H. Rehnquist's new book, "Centennial Crisis: The Disputed Election of 1876." And Christopher Caldwell reviews Jonathan Rauch's new book, "Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America."

Finally for now, The Washington Times contains an editorial entitled "'Under God.'"
Posted at 23:45 by Howard Bashman



"Scalia forgets the public is his boss": This editorial will appear Monday in The Seattle Post-Intelligencer. And in Monday's issue of The New York Times, columnist Bob Herbert will have an op-ed entitled "A Justice's Sense of Privilege."
Posted at 22:35 by Howard Bashman



"Rebel flag prom coat pits free speech against cultural sensitivity": This article appeared Friday in The Asheville (N.C.) Citizen-Times. Also in that's day's newspaper was a related article headlined "Cherokee school board delays ruling on flag garb."
Posted at 22:30 by Howard Bashman



"Specter's woes start with self": Columnist Tom Ferrick Jr. has this essay today in The Philadelphia Inquirer.
Posted at 22:22 by Howard Bashman



In today's issue of The Pittsburgh Post-Gazette: The newspaper contains an article headlined "The tiny town that fought the Klan; Residents used water on KKK, which responded with fatal shots" and an editorial entitled "Specter deserves support; Those opposing incumbent are asking for trouble."
Posted at 22:16 by Howard Bashman



The Chicago Tribune is reporting: Today's newspaper contains articles headlined "Mother's fight for son not over; Illinois prosecutors vow to appeal a ruling awarding custody to a convicted felon in a case that raises constitutional questions" and "UAL case judge seen as solidly grounded; Bankruptcy Court chief Eugene Wedoff brings a combination of talent, discipline and resolve to United restructuring."
Posted at 22:02 by Howard Bashman



"Pennsylvania's Family Feud; Republican moderate Arlen Specter is running for his political life": The April 19, 2004 issue of U.S. News & World Report will contain this article.
Posted at 21:58 by Howard Bashman



"The 9/11 Commission: Justice's Blind Spot; And you thought the Clarke-Rice smackdown was heated; Wait till the folks from the FBI and Justice talk terror under oath." This article will appear in the April 19, 2004 issue of Newsweek.
Posted at 21:57 by Howard Bashman



Available online from law.com: Jonathan Ringel reports that "11th Circuit to Rehear Strip-Search Case en Banc; Once an advocate for qualified immunity, Judge William H. Pryor Jr. to rule on Ga. case." In news from California, "What's the Harm? Judge Asks Gay Marriage Opponents." In news from Texas, "Fastow Fallout: Angry Husband, Low-Income Jury." And in news from New York, "Defense: Sheikh's Lawyer Lacked Notice Her Actions Violated the Law."
Posted at 19:58 by Howard Bashman



"White House gearing up for critical Supreme Court challenge": ABC Radio in Australia offers this transcript of report aired today.
Posted at 19:51 by Howard Bashman



"Judge Weighs Detroit Terrorism-Case Appeals": This evening's broadcast of NPR's "All Things Considered" included this report (Real Player required).
Posted at 19:39 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Look at Judge in New York Abortion Trial" and "Nichols' Attorneys Use Cross Examination."
Posted at 16:50 by Howard Bashman



"FBI arrests suspect in cyberstalking; 'Huge relief,' Seattle woman says": The Seattle Post-Intelligencer yesterday contained this report.
Posted at 13:14 by Howard Bashman



"Skilling in New York confrontation; Effect on Enron case depends on whose version of story is true": This article appeared yesterday in The Houston Chronicle. The New York Times yesterday reported that "Former Enron Chief in Police Incident." The New York Post reported yesterday that "Enron big tanked." Reuters reported that "Ex-Enron CEO in hospital after 'erratic' behavior." And The Associated Press offered a report headlined "Police: Ex-Enron CEO Acted Erratically."
Posted at 13:13 by Howard Bashman



"Mean-Spirited Gadfly to Some is Online Journalism Martyr to Others": Online Journalism Review offers this report.
Posted at 13:03 by Howard Bashman



"'Jane Doe' who sued police is a judge; Detroit paid $85,000 to settle suit alleging mistreatment by cops": This article appeared Friday in The Detroit News.
Posted at 13:01 by Howard Bashman



"Court Reinstates Vietnam-Era Confession": The Associated Press reports here that "A confession thrown out by a lower court can be used against a former Navy seaman charged with killing a shipmate during the Vietnam War, a federal appeals court ruled." I first reported the news in a post you can access here.
Posted at 08:32 by Howard Bashman



"Bush gets tough on porn in the USA; With an election looming, the government is cracking down on the thriving adult market": This article appears today in The Observer (UK).
Posted at 08:30 by Howard Bashman



"Judges argue fate of 9th Circuit Court": The Fairbanks Daily News-Miner contains this report today.
Posted at 08:22 by Howard Bashman



"Scalia fails to emulate Constitution in tape flap": This op-ed by Eric Stringfellow appears today in The Clarion-Ledger. And The St. Paul Pioneer Press today contains an editorial entitled "Supreme Court right, wrong on tapes: Democracy benefits from court openness."
Posted at 08:15 by Howard Bashman



Saturday, April 10, 2004
"Agency chief didn't disclose marital ties; Accused director did good job, board head says": Today's issue of The Dayton Daily News contains this report. I recently linked here to news reports concerning this agency chief's resignation.
Posted at 23:37 by Howard Bashman



In Saturday's newspapers: The Los Angeles Times reports that "D.A. Could Be Disbarred Over Drug Prosecutions; The Texas state bar files a petition accusing him of misconduct in 35 wrongful convictions." An article reports that "Bryant Prosecutors Fire Back." In regional news, "Clock Is Ticking on Initiative; About 200,000 more signatures are needed to put a bid to bar illegal immigrants from public services on the ballot"; "Northrop Case Ends 17 Years Later; A worker who in 1987 blew the whistle on defective missile parts settles for $1.8 million"; "Leung Indictment Is Too Vague, U.S. Judge Rules; Jurist says the accused double agent is entitled to clarification to guard against prosecution surprises at trial"; "U.S., State May Merge L.A. Probes; Authorities are likely to combine investigations of allegations that firms had to make political donations to bid on city work, sources say"; and "Mother Won't Be Charged in Phony Attack; Garden Grove police have ended obstruction of justice investigation into parent of girl who made up story that kept drifter in jail 8 months." And a letter to the editor appears under the heading "A Political 'Fetus.'"

The Boston Globe reports that "BU law dean to leave post after 14 years."

The New York Times reports that "Urine Samples Are Seized in Balco Case." In news from Connecticut, "Rowland Aide Is Subpoenaed" and "Rowland Friend Under Scrutiny Was Questioned in '90s Corruption Case." In local news, "88 Air Travelers at Newark Are Held in Immigration Case" and "2 Suits Challenge Council on Legality of Lead-Paint Law." An editorial is entitled "Justice Begrudged." And letters to the editor appear under the heading "Thinking About Abortion."

The Washington Post reports that "Overtime-Pay Complaints End Up in Court More Often." And in local news, "2 in Va. Jihad Sentenced to Prison Terms" and "Husband of Researcher Receives Prison Term."
Posted at 23:10 by Howard Bashman



Stuart Buck on unpublished opinions: You can access his thoughtful comments here.
Posted at 22:51 by Howard Bashman



"Abortion trial focuses on method's safety; Witness who supports ban calls it dangerous; opponent says it is often best option": Bob Egelko has this article today in The San Francisco Chronicle.

Meanwhile, in news from Nebraska, The Omaha World-Herald reports that "'Partial-birth' trial closes on mixed note." And The Lincoln Journal Star today contains an article headlined "Doctor:Banned abortion procedure should not be outlawed."
Posted at 22:40 by Howard Bashman



"V.I. judicial nominee testifies before U.S. Senate panel": Yesterday's issue of The Virgin Islands Daily News contained this report.
Posted at 22:30 by Howard Bashman



"Stigma Against Gays Fading, Survey Finds": This article will appear in Sunday's issue of The Los Angeles Times. The complete results of the poll are contained in a document entitled "Americans Oppose Same-Sex Marriage but Acceptance of Gays in Society Grows" (23-page PDF document).
Posted at 21:15 by Howard Bashman



"Disabilities act creates obstruction of justices; Making courtrooms accessible for all proves to be a lot harder than some might imagine": The Chicago Tribune today contains this article.
Posted at 19:42 by Howard Bashman



"Some cry foul over language-ban bill; Ose's legislation against airing some words draws attention and response": This article appears today in The Sacramento Bee. You can access the proposed legislation, currently pending in the U.S. Congress, at this link.
Posted at 18:05 by Howard Bashman



"United States Supreme Court Justice Sandra Day O'Connor to Give Lecture and be Awarded Honorary Doctor of Laws by Oklahoma City University as Part of OCU's Centennial Celebration": The Oklahoma City University School of Law has issued a news release that begins, "Sandra Day O'Connor, Associate Justice of the United States Supreme Court, will give a public address and receive an honorary doctorate from Oklahoma City University at 4:00 p.m., Monday, April 12 at an academic convocation in the Kirkpatrick Auditorium on the OCU campus."
Posted at 18:03 by Howard Bashman



"Butler breaks down Newdow 'under God' case": This article appeared yesterday in The Yale Herald.
Posted at 18:01 by Howard Bashman



Duck-gate, meet tape recording-gate: In news from Mississippi, The Biloxi Sun Herald reports today that "Seizure of tapes called illegal in media letter; Letter: Illegal actions more shocking given Scalia's topic." The Hattiesburg American today contains articles headlined "American files complaint, joins other organizations"; "Agent defends tape's seizure; Flowers: Incident mishandled"; and "Scalia speech receives praise; Some undeterred by media controversy." CNN.com reports that "Forced erasures of Scalia speech outrage journalists." Finally, the results of an unscientific online poll (voting is now closed) sponsored by The Hattiesburg American trended worse for Justice Scalia than they were when I first noted those results here yesterday.

In commentary, The St. Petersburg Times today contains an editorial entitled "Justice erased." Yesterday, The Hartford Courant contained an editorial entitled "Justice Scalia, Again." The Baxter Bulletin contained an editorial entitled "Don't try to record high court justice." Jana Bommersbach has an op-ed entitled "Scalia's assault on speech" in The Arizona Republic. And The Scripps Howard News Service offers an op-ed by Dale McFeatters entitled "The imperial justice."
Posted at 09:22 by Howard Bashman



"For judge, it's gospel; Ex-Alabama justice says 'activist' jurists deny religious rights": This article appeared yesterday in The Rocky Mountain News. And The Denver Post yesterday reported that "Ex-judge rips church-state restrictions."
Posted at 09:20 by Howard Bashman



Warning for readers who lack any modicum of intelligence -- some of the following links are not work-safe: "Wonkette" points to this post at the "HubLog" blog offering "a picture of John Ashcroft's face, made entirely of little porn people." The picture apparently was inspired by this news recently published in The Baltimore Sun.
Posted at 01:11 by Howard Bashman



"Unpublished Opinions: Inedible Sausage or Crazy Uncle?" law.com's Tony Mauro provides this very interesting report on the battle over proposed Federal Rule of Appellate Procedure 32.1.
Posted at 00:30 by Howard Bashman



Friday, April 09, 2004
In Friday's newspapers: The New York Times reports that "Lawyers Shift Focus From Big Tobacco to Big Food." An article reports that "City May Bear $350 Million in 9/11 Claims." And in other local news, "Rejecting Constitutional Claims, Judge Upholds Smoking Bans"; "Man Who Arranged Wife's Murder Gains New Sentencing Hearing"; and "Defense Asks for Dismissal of Charges on Williams."

The Washington Post reports that "Justice Considers Buyouts; Need for Expertise in Fighting Terrorism Stressed."

The Washington Times reports that "Conservatives loyal to liberal Specter."

USA Today reports that "Bryant case could hinge on recording; Lakers star wasn't read his rights before conversation."

The Boston Globe reports that "SJC mulls taping of suspect interviews." And in other news, "Judge wary of deal for hit man; Questions bargain with Martorano."

The Los Angeles Times reports that "Foes of Gay Marriage Can't Join Case; A judge in San Francisco rules out a group's intervention in a court challenge, saying gay weddings wouldn't harm heterosexuals." In other news, "Media Seek an End to Jackson Gag Order; Attorneys call the edict in the singer's child molestation case an unconstitutional prior restraint on freedom of speech." And an article reports that "Broadcaster to Face Trial Over Airplay Practices."
Posted at 23:59 by Howard Bashman



"Harvey Birdman, Attorney at Law" returns: On Sunday, April 18, 2004 at 11:30 p.m. on the Cartoon Network, you can view the season premier of "Harvey Birdman, Attorney at Law." On this episode, Harvey represents Inch-High Private Eye, who believes he's been illegally fired because of his diminutive stature. A preview is available at this link (Real Player required).
Posted at 20:50 by Howard Bashman



The Las Vegas Review-Journal is reporting: Today's newspaper reports that "Nevada court's tax ruling criticized by law review." Of course, it's not just any law review. And yesterday's newspaper reported that "Circuit court split debated; Nevada, eight other states make up region."
Posted at 19:57 by Howard Bashman



"Porn sites found on state computer; Justice Stratton's husband resigns after probe": This article appears today in The Toledo Blade. The Cleveland Plain Dealer reports today that "Justice's husband quits state job." And The Dayton Daily News reports that "Judge's spouse faces porn charges."
Posted at 19:55 by Howard Bashman



"Appeals Court Stays Cable Internet Ruling": Reuters provides this report.
Posted at 19:49 by Howard Bashman



"Hired Guns: What to do about military contractors run amok." Phillip Carter, whose blog you can access here, has this jurisprudence essay just posted online at Slate.
Posted at 18:08 by Howard Bashman



Divided en banc U.S. Court of Appeals for the Eighth Circuit allows use of confession against a former Navy seaman charged with killing shipmate during the Vietnam War: Today's 7-4 en banc ruling concerns a death that occurred in 1968 at Subic Bay. You can access earlier news coverage of the case here, here, here, and here.
Posted at 18:02 by Howard Bashman



"Pilloried": Online at The New Republic, Michelle Cottle has an essay that begins, "The drug war is heating up down in Texas, though not in the way you might expect. Earlier this year, three Eckerd pharmacists in Denton refused on moral grounds to fill an emergency-contraception prescription for a rape victim."
Posted at 17:53 by Howard Bashman



In Sunday's issue of The New York Times Magazine: William Safire, largely inspired by Dahlia Lithwick, takes a look at the term "Wing Nut." An article about the Log Cabin Republicans is headlined "Can This Marriage Be Saved?" And Professor Walter Benn Michaels has an essay entitled "Diversity's False Solace."
Posted at 17:40 by Howard Bashman



"Two Law Alums Look Forward to Supreme Court Clerkships; Students Should Prep for Clerkship Application Season, Trujillo Say": The University of Virginia School of Law has issued this news release.
Posted at 17:37 by Howard Bashman



"Foreign Exchange: Should the Supreme Court care what other countries think?" Slate has recently posted online this jurisprudence essay by Law Professor Tim Wu. That title reminds me somewhat of another jurisprudence essay from not too long ago.
Posted at 17:22 by Howard Bashman



Update: Today the Administrative Office of the United States Courts kindly provided me with an updated summary and recommendation (75-page PDF file) prepared by Law Professor Patrick J. Schiltz, the reporter for the Advisory Committee on Appellate Rules of the U.S. Courts, addressing both proposed Federal Rule of Appellate Procedure 32.1 and the proposed amendment to Federal Rule of Appellate Procedure 35. Apparently the summary and recommendation that the AO sent to me yesterday, and which I provided access to via this post, wasn't the current version.

Proposed Rule 32.1 would allow unpublished and non-precedential opinions to be cited in all U.S. Courts of Appeals, and the proposal has turned out to be the most controversial change to the Federal Rules of Appellate Procedure ever contemplated if the number of opposing comments received is any indication.

The amendment to Rule 35 would make clear, on a nationwide basis, that recused active judges are not to be counted as votes against rehearing en banc. Thus, if a federal appellate court has twelve active judges but one is recused, only six votes in favor of rehearing en banc would be needed in order for rehearing en banc to be granted. In some circuits, a majority of all active judges remains necessary in order for rehearing en banc to be granted, even if one or more is recused. In those circuits, if one out of twelve active judges was recused, seven of the remaining eleven non-recused active judges would need to vote for rehearing en banc in order for rehearing en banc to be granted. The proposed amendment to Rule 35 has turned out to be more controversial than expected, the summary demonstrates here.

I favor approval of both of these amendments.
Posted at 16:50 by Howard Bashman



In re Jailhouse Strip Search Class Action Litigation: Today a three-judge panel of the U.S. Court of Appeals for the First Circuit issued a decision affirming class certification in two cases from Maine in which the plaintiffs are complaining that they were strip searched in jail in violation of their constitutional rights as arrestees. As Chief Judge Michael Boudin's opinion for the court explains, "Over the last few decades, a changed popular sensibility has produced a series of decisions curtailing what was once an apparently routine practice in many jails of strip searching arrestees not yet convicted of any crime."
Posted at 16:29 by Howard Bashman



In news from Nebraska: The Omaha World-Herald reports today that "Judge seeks expert input on abortion decision" and "Abortion opponent says procedure could be necessary." The Lincoln Journal Star today contains an article headlined "Doctor: Banned method could be needed." And The Associated Press reports that "Expert May Help Decide Neb. Abortion Case."
Posted at 15:55 by Howard Bashman



Duck-gate is just a dull memory now: The Hattiesburg American reports today that "Seizure of recordings draws fire; U.S. Marshal took recordings of Scalia's speech." The newspaper also contains an editorial entitled "What about freedom of the press?" Finally, the newspaper offers an online poll asking the question "Are you troubled that U.S. Supreme Court Justice Antonin Scalia prohibited the media from recording his public appearances in Hattiesburg?" As of the time that I voted, the results showed a total of 130 votes, with 65.4 percent answering "yes" and 34.6 percent answering "no."

In related coverage, The Associated Press reports that "Marshal Defends Erasure of Scalia Speech." And Anne Gearan has an article headlined "Former Justice Takes a Hike; Scalia Jests."
Posted at 15:35 by Howard Bashman



Programming note: Work will require me to be out of the office, and away from the Internet, until later today.
Posted at 05:55 by Howard Bashman



"Legal Experts Express Concern About Erasure of Scalia Tapes": Adam Liptak has this report today in The New York Times. Charles Lane of The Washington Post reports that "Marshal Orders Tapes Of Scalia Talk Erased; Reporters Told Justice Bars Recording." David G. Savage of The Los Angeles Times reports that "Scalia's Tape Tactics at Issue; Experts question legal basis for confiscation -- apparently on justice's orders -- of recordings." And The Gannett News Service reports that "Recordings confiscated during speech by Scalia."
Posted at 05:44 by Howard Bashman



Thursday, April 08, 2004
"AG to hire attorney reprimanded by 9th Circuit": This article appears in Friday's edition of The Pacific Daily News of Guam.
Posted at 23:23 by Howard Bashman



"$21.7 million tobacco award held for retrial": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 23:22 by Howard Bashman



In today's edition of The Los Angeles Times: A front page article is headlined "Smile and Say 'Fess Up'; Police are rethinking tactics as more law agencies move to taped interrogations; To many investigators, a camera changes the dynamics." Maura Dolan reports that "Award for Smoker Is Overturned; Jury should not have considered industry conduct during a protected period, an appeals court rules." In sports, "Judge's NCAA Ruling Challenged; Lawyer for skier who plays football at Colorado argues for endorsement deals in front of appeals panel." An article reports that "Prison Held Gang Members in Lockdown for Almost 2 Years." And in international news, "Man Convicted of Aiding 9/11 Plot Freed in Germany; Prosecutors face a new setback a month after a court overturned verdict and ordered a new trial."
Posted at 22:45 by Howard Bashman



Available online at law.com: In news from New York, "A Decision Pregnant With Meaning: Motherhood stereotypes count as bias, 2nd Circuit rules." An article reports that "Crimes Outside Calif. Can Count Against Three Strikes in State." In other news, "Shearman & Sterling Hit by 'Revolving Door'; Lawyer, firm disqualified by federal judge overseeing massive tobacco case." And in news from Florida, "Microsoft, Business Partner Concocted 'Scheme' to Protect Copyrights; A firm alleges it was a victim of Microsoft's aggressive effort to protect itself against copyright infringement."
Posted at 22:32 by Howard Bashman



"Freedom of the press advocacy group protests federal marshal's seizure of recordings": The Associated Press reports here that "A deputy federal marshal violated both the law and 'the fundamental tenets of press freedom' when she ordered two reporters to erase recordings of a speech by U.S. Supreme Court Justice Antonin Scalia, a journalists' advocacy group said Thursday. The Reporters Committee for Freedom of the Press said in a letter that the Deputy U.S. Marshal Melanie Rube violated the Privacy Protection Act, which says government officers may not seize materials in the possession of people who plan to distribute them through public communication."

The Reporters Committee for Freedom of the Press today issued a press release entitled "Reporters Committee condemns marshal's interference with reporters during Scalia speech" and, as The AP reports, also sent a letter (1-page PDF file) to Justice Scalia. The attachment mentioned in the letter to Justice Scalia can be accessed here (3-page PDF file).
Posted at 22:20 by Howard Bashman



"Blog plugs appeal to niche audiences": This article appears today in The News & Observer of Raleigh, North Carolina.
Posted at 17:30 by Howard Bashman



"Media access limited during Scalia's speeches; Justice: Constitution 'something extraordinary.'" The Hattiesburg American today contains this rather extraordinary report. The newspaper also reports that "Students prepared for justice's visit."
Posted at 16:47 by Howard Bashman



Access online the summary of comments regarding, and recommendation how to proceed concerning, proposed Federal Rule of Appellate Procedure 32.1: The summary and recommendation has been prepared by Law Professor Patrick J. Schiltz, who serves as the reporter for the Advisory Committee on Appellate Rules of the U.S. Courts. You can access the documents at this link. Professor Schiltz's recommendation is likely to be disappointing to those who, like me, support of the proposed rule, but the recommendation was not unexpected in light of the strong opposition the proposed rule has generated.

What is most telling, however, is Professor Schiltz's description of how he began the process as an agnostic and, because of the illogical nature of the comments received in opposition to proposed Rule 32.1, ended up favoring the proposed rule. He writes, "I find the merits to be a closer call. I started as an agnostic on the question of whether no-citation rules are necessary or wise. The comments persuade me that they are not -- and that Rule 32.1 is probably right on the merits. Sometimes one is influenced to support a proposal by the strength of the arguments for it, and other times one is influenced to support a proposal by the weakness of the arguments against it. My support for Rule 32.1 is more a product of the latter than the former." His discussion from that point forward is certainly worth a look.
Posted at 16:26 by Howard Bashman



A look ahead to next week's meeting of the Advisory Committee on Appellate Rules of the U.S. Courts: On Tuesday and Wednesday of next week, the Advisory Committee on Appellate Rules of the U.S. Courts is scheduled to meet in Washington, DC. The major topic for discussion will be the fate of proposed Federal Rule of Appellate Procedure 32.1. I previously summarized all of the pending Federal Rule of Appellate Procedure amendments in the January 2004 installment of my monthly appellate column published in The Legal Intelligencer.

The committee has received over 500 comments on proposed Rule 32.1, making it unquestionably the most controversial proposed FRAP amendment ever. The vast majority of those comments can be accessed online via this link. Next Tuesday morning, the committee is scheduled to begin its meeting by hearing testimony from six currently-serving federal appellate judges and from representatives of the American Bar Association and the American College of Trial Lawyers. Tuesday afternoon, if all goes according to schedule, the committee's members will begin their discussion of the pending rule amendments and the comments they have generated. I am hoping to be present to observe the Tuesday afternoon portion of the meeting, although an oral argument commitment before the Supreme Court of Pennsylvania on Tuesday morning likely will prevent me from seeing any of the witnesses testify.

A summary of the comments received and a recommendation of how to proceed has been prepared by Law Professor Patrick J. Schiltz, the committee's reporter. I hope to obtain an electronic copy of that summary and to post it online soon. Also, my monthly appellate column this month, to be published on Monday, April 12, 2004, will explain why the Appellate Rules Committee should not be deterred by the overwhelmingly negative comments proposed Rule 32.1 has generated, but rather should press ahead in its effort to add proposed Rule 32.1 to the Federal Rules of Appellate Procedure. I intend to post online the text of this month's column at 4 p.m. on April 12th, so that it will be publicly available in advance of Tuesday's meeting.
Posted at 15:30 by Howard Bashman



U.S. Court of Appeals for the Third Circuit schedules oral argument in case challenging Solomon Amendment: The case known as FAIR v. Rumsfeld has been tentatively listed for oral argument on Tuesday, May 25, 2004, but could still be moved to another day of that week. The Third Circuit does not officially release the identity of the judges on the panel until approximately ten days before oral argument. I hope to attend the argument, as I had the privilege of filing an amicus brief on behalf of several law student groups in support of the federal government's position in the case.
Posted at 14:50 by Howard Bashman



"Benton goes before Senate committee": The Associated Press reports here that "Missouri Supreme Court Judge Duane Benton received a warm reception Thursday from the Senate Judiciary Committee. Benton is President Bush's nominee for a lifetime appointment to the St. Louis-based 8th U.S. Circuit Court of Appeals."
Posted at 14:10 by Howard Bashman



"Oral Argument: The duel of the tongue vibrators." Today's issue of The Houston Press contains an article that begins:
U.S. District Judge Vanessa Gilmore is having a heavy, heavy time these days, with the tedious procedural sparring of the Enron broadband suit and the looming death penalty case against a heartless human smuggler.

So she might be forgiven for laughingly telling attorneys, "I want this one!" when pretrial discussions began on a patent-infringement case involving…tongue vibrators. (We assume Gilmore was referring to the case and not the product.)
(Via "Obscure Store.")
Posted at 13:44 by Howard Bashman



"Koizumi shrine visit ruled unconstitutional": The Japan Times today reports here that "Prime Minister Junichiro Koizumi's visit to Tokyo's Yasukuni Shrine in August 2001 was unconstitutional because it violated the separation of state and religion, the Fukuoka District Court ruled Wednesday." Thomas at the blog "That's News To Me" examines this news in a post you can access here.
Posted at 13:23 by Howard Bashman



"Supremacist prefers prison garb for trial; Man accused of soliciting murder shuns warning about clothing": The Associated Press provides this report. The defendant isn't accused of just soliciting any murder; rather, he is charged with soliciting the murder of a federal judge. The Chicago Tribune reports today that "Jury selection begins in case of white supremacist; 19 excused in 1st interview round." And The Chicago Sun-Times today reports that "Publicity slows jury selection in Hale trial."
Posted at 12:42 by Howard Bashman



"No-Fly Like Me: I'm on the government's watch list for terrorists, but I still think the ACLU's court challenge is dumb." Timothy Noah has this essay online at Slate. I provided links to the ACLU's lawsuit in an earlier post that you can access here.
Posted at 12:10 by Howard Bashman



"High court petitioned in religious-rights case; Virginia has asked the U.S. Supreme Court to decide whether accommodations should be made for prisoners' religious beliefs": This article appears today in The Roanoke Times.
Posted at 11:46 by Howard Bashman



"In South, issue of gay marriage exposes hate and fear": The Chicago Tribune today contains this report.
Posted at 11:44 by Howard Bashman



"Couple finds that listening to the Supremes not always exhilarating": This article appears today in The Journal Times of Racine, Wisconsin.
Posted at 11:43 by Howard Bashman



"Memo urged delay of judicial nominee": The Washington Times today contains an article that begins, "A Senate Judiciary Committee lawyer urged Sen. Edward M. Kennedy to use the judicial-confirmation process to affect an affirmative-action case to which she once had been a party."
Posted at 11:37 by Howard Bashman



"Oregon judge argues for splitting 9th U.S. Circuit court; U.S. Circuit Judge Diarmuid O'Scannlain says the appellate court is too large to deliver justice": This article appears today in The Oregonian.
Posted at 11:22 by Howard Bashman



"DoD lawyer files suit to challenge tribunals": Phil Carter, whose blogging on military law issues is without parallel in the blogosphere, offers this analysis.
Posted at 09:57 by Howard Bashman



On the agenda: At 10 a.m. today, the Senate Judiciary Committee will hold a confirmation hearing for several judicial nominees. The only federal appellate court nominee on the agenda today is Eighth Circuit nominee William Duane Benton. Benton currently serves as a judge on the Supreme Court of Missouri. This morning's hearing will be broadcast live online, and you should be able to access the broadcast at this link (Real Player required) once the hearing begins.
Posted at 09:45 by Howard Bashman



In Thursday's newspapers: The Washington Post reports that "Yemeni's Attorney Tries to Halt Tribunals; In Federal Court, Lawyer Challenges U.S., International Legality of Proceedings." In other news, "POWs Not Entitled to Iraqi Funds, Justice Says; Persian Gulf Vets Seek Payment That U.S. Wants to Go Toward Rebuilding Iraq." An article reports that "Court Frees Moroccan Convicted In 9/11 Case; U.S. Would Not Provide Evidence At Hamburg Trial." In business news, "Prosecutors File Arguments Against New Stewart Trial; No Proof of Bias, U.S. Attorney Claims"; "Guilty Plea Withdrawn By Enron Defendant; Judge Won't Honor Deal Prosecutors Made With Former CFO's Wife"; and "Tyco Case Juror Told Judge of Her Fears; Phone Call, Letter Upset Holdout." In local news, "Court Overturns Kidnapping Verdict In Double Slaying" and "Inmates Charged With Plot to Get Shot, Sue D.C." And columnist Richard Cohen has an op-ed entitled "Bravo, Ruthie."

The New York Times reports that "Seizure of Limbaugh's Records Is Before Court." In international news, "Germans Free Moroccan Convicted of a 9/11 Role." An article reports that "Prosecution Argues Case for No Retrial of Stewart." In other business-related news, "Lea Fastow Withdraws Plea in Tax Case"; "Tyco Case Puts New Focus on Issues of Criminal Intent"; and "Prosecutors Seek More Time in Another Tyco Case." And in sports-related news, "Union to Fight Subpoena Over Tests" and "The Yankees Trial on ESPN Is Law Lite, an Unreal Stab at Reality TV."
Posted at 08:02 by Howard Bashman



"'Partial-birth' procedure is never necessary, doctor says": This article appears today in The Omaha World-Herald. And The Lincoln Journal Star reports today that "Doctor testifies D&X both risky, unnecessary."
Posted at 07:47 by Howard Bashman



"Court will rehear case for city park monument": The Journal Star of Lincoln, Nebraska reports here today that "A federal appeals court has vacated an earlier decision that a Ten Commandments monument must be removed from a city park in Plattsmouth. The 8th U.S. Circuit Court of Appeals issued an order Tuesday saying that the full court would review the earlier ruling by one of its three-judge panels. The panel found the monument violated the constitutional separation of church and state." Harry Niska of the blog "Fritz Feds" offers his insights on what the granting of rehearing en banc may augur with respect to the ultimate outcome of the case.
Posted at 07:45 by Howard Bashman



"Conservative group is flip side to ACLU; Armed with morality alerts and radio and guided by a tireless leader, Plano's Liberty Legal Institute believes it has right stuff to do battle": The Dallas Morning News today contains this article.
Posted at 07:40 by Howard Bashman



"State argues to 5th Circuit judges it has right to declare 'Choose life'": This article appears today in The Advocate of Baton Rouge, Louisiana. And The Times-Picayune reports that "La. lawyer makes case for specialty plates; License messages are state speech, he says."
Posted at 07:37 by Howard Bashman



News coverage of yesterday's hearing before a subcommittee of the U.S. Senate on whether to break up the U.S. Court of Appeals for the Ninth Circuit: The Arizona Republic reports that "9th Circuit's chief judge says division unnecessary." And The Billings Gazette contains an article headlined "Key senator: 9th Circuit will be split."
Posted at 07:30 by Howard Bashman



What kind of publicity would you prefer Justices of the U.S. Supreme Court to generate? This morning, you can opt for publicity of the friendly kind, such as The Toledo Blade's report that "Justice O'Connor shows her sense of humor at UT." Or The San Diego Union-Tribune's report that "Justice Stevens shares memories; Former colleagues topic of USD talk." Or even, believe it or not, The Baltimore Sun's report that "Rehnquist on hand for reopening of Taney House; Society seeks new view of ex-justice and his times."

Also this morning, by contrast, you can opt for publicity of the unfriendly kind, exemplified by The Associated Press's report that "Scalia orders erasure of reporters' tapes." Law Professor Eugene Volokh offers his reaction to this news from Mississippi.
Posted at 07:15 by Howard Bashman



Available online at Salon.com: Farhad Manjoo has an article entitled "The mouse who would be king: Disney's ever-expanding copyright powers are threatening to squash everyone's cultural creativity; As two new books compellingly argue, the time is ripe for more anarchy, and fewer lawyers." And yesterday, Arianna Huffington had an essay entitled "A mash note to the blogosphere: Simply put, blogs are the greatest breakthrough in popular journalism since Tom Paine broke onto the scene."
Posted at 00:10 by Howard Bashman



Wednesday, April 07, 2004
Elsewhere in Wednesday's newspapers: The Los Angeles Times reports that "Starr to Head Pepperdine's Law School; University officials tout the appointment of the former solicitor general and U.S. Court of Appeals judge." In other news, "City Accepts 'Peace Pole'; Huntington Beach rejects concerns that gift would violate separation of church and state." An article reports that "Passengers, ACLU Sue Over 'No-Fly' List; Plaintiffs want the government to develop a grievance system for those mistakenly singled out in anti-terrorism screenings at airports." In other news, "Bryant Wants Trial Date Set; 'No one looks forward to this case being over more than' defendant, his attorney says." And an article reports that "Ringleader in Immigration Fraud Is Sentenced to 10 Years."

USA Today contains an article headlined "Brief: Judge made legal errors; Decision to allow Clarett in draft flawed, league says." An article reports that "ACLU sues on behalf of 7 mistakenly ID'd at airports; Plaintiffs say TSA labeled them as security risks." In other news, "Bryant's lawyers ask for speedy rape trial; Request follows appeal by accuser to set date soon for safety reasons." An editorial is entitled "Fees line lawyers' pockets," while Law Professor Theodore Eisenberg has an op-ed in response entitled "Separate myths from facts." And Tony Mauro has an op-ed entitled "Supreme Court's ruling marks blow to public's right to know."

The Boston Globe reports that "SJC rules capital gains rate change was faulty."

The Washington Times reports that "Worker opposed to gays wins suit." And Thomas Sowell has an op-ed entitled "Fixing the jury system."
Posted at 23:30 by Howard Bashman



In news from Nebraska: Although the partial birth abortion ban trials now underway in three federal district courts across the Nation appear to have lost the attention of major newspapers in New York City and San Francisco, the trial underway in Lincoln, Nebraska is still receiving coverage from local newspapers. Today The Lincoln Journal Star contains an article headlined "Doctor: 20-week fetus can feel pain." And The Omaha World-Herald offers reports headlined "'Partial-birth' procedure is never necessary, doctor says" and "20-week fetus can feel pain, doctor testifies."
Posted at 23:25 by Howard Bashman



"Rehnquist: Taney Had 'Admirable' Career." Today seems to have been quite the day for U.S. Supreme Court Justices to have speaking engagements. The Associated Press reports here that "Supreme Court Chief Justice William H. Rehnquist praised a predecessor, Roger Brooke Taney, on Wednesday as a great justice whose career was 'unfortunately marred' by his opinion that slaves were property, not citizens."
Posted at 23:23 by Howard Bashman



"For Scalia, tradition, written word are key": This article will appear in tomorrow's issue of The Biloxi Sun Herald.
Posted at 23:15 by Howard Bashman



"Justice Stevens Sentimental in Speech": Gina Holland of The Associated Press provides this report.
Posted at 23:12 by Howard Bashman



"Suit Contests Military Trials of Detainees at Cuba Base": Neil A. Lewis will have this report in Thursday's issue of The New York Times. It was my good fortune earlier today to have been one of the first to report news of this lawsuit.
Posted at 23:08 by Howard Bashman



"Curtis Gomez's nomination for judgeship to get U.S. Senate panel review Thursday": This article appears today in The Virgin Islands Daily News. The witness list for tomorrow's Senate Judiciary Committee hearing for judicial nominees can be viewed here.
Posted at 23:04 by Howard Bashman



Available online from law.com: An article reports that "Sex Offender List for Lesser Crimes Likely to Pass Test; In separate case, Calif. justices don't warm to vet's objections to condo pet ban." In other news, "Associate Misled Judge by Remaining Silent; Connecticut Supreme Court gives candor rule broad meaning." And finally, an article is headlined "Forced to Testify Against Client? Withdraw, Says N.Y. Court."
Posted at 22:44 by Howard Bashman



"Two Reporters Told to Erase Scalia Tapes": The Associated Press reports here from Hattiesburg, Mississippi that "Two reporters were ordered Wednesday to erase their tape recordings of a speech by U.S. Supreme Court Justice Antonin Scalia at a Mississippi high school." I have a strange feeling this is not the last we'll be hearing of this incident.

And in other press coverage relating to Justice Scalia, today The Wall Street Journal contained an article headlined "The tickets airlines don't want you to buy."
Posted at 20:30 by Howard Bashman



Another lawsuit over the words "fair and balanced" fails to achieve success: First, FOX News tried to get an order prohibiting Al Franken from using the phrase in his new book (access the complaint here), but that lawsuit was all but laughed out of court and then quietly abandoned. And today, the U.S. Court of Appeals for the Fifth Circuit affirmed the dismissal of a suit that sought to enforce the Magnuson-Stevens Fishery Conservation and Management Act's requirement, in 16 U.S.C.A. sec. 1852(b)(2)(B), of "fair and balanced" representation of commercial and recreational fishing interests on the Gulf of Mexico Fishery Management Council. You can access today's ruling at this link.
Posted at 20:20 by Howard Bashman



If it's prepared statements you want: The Web site of the Senate Judiciary Committee now offers, via this link, the prepared statements from most of the witnesses at today's hearing of the Subcommittee on Administrative Oversight and the Courts on "Improving the Administration of Justice: A Proposal to Split the Ninth Circuit."
Posted at 17:58 by Howard Bashman



"Enron's Lea Fastow Withdraws Guilty Plea": Today's broadcast of NPR's "Talk of the Nation" included this interview (Real Player required) with Houston Chronicle reporter Mary Flood.
Posted at 17:55 by Howard Bashman



"No death penalty for juveniles": Former First Lady Rosalynn Carter today has this op-ed in The Miami Herald.
Posted at 17:52 by Howard Bashman



"Federal panel hears argument over Louisiana's anti-abortion plates": The Associated Press offers this report on today's oral argument before a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit.
Posted at 17:50 by Howard Bashman



Today is merely yesterday's tomorrow: The Toledo Blade yesterday reported that "Sandra Day O'Connor to speak at UT tomorrow." And here's a report on what she had to say.
Posted at 17:40 by Howard Bashman



"Appeals court hears Limbaugh's case to keep records sealed": The Associated Press provides this report from West Palm Beach, Florida. Those not satisfied to learn of the hearing second-hand can watch streaming video of today's oral argument before Florida's Fourth District Court of Appeal at this link (Windows Media Player required), thanks to Rush Limbaugh himself (via "The Technoptimist").
Posted at 17:11 by Howard Bashman



"Judge mulls wisdom of monument": Today's issue of The Deseret Morning News includes this Ten Commandments-related article.
Posted at 17:07 by Howard Bashman



"White House Asks Court to Void POW Award": The Associated Press reports here that "The Bush administration urged an appeals court Wednesday to overturn a judge's order awarding nearly $1 billion in Iraqi money to 17 Americans taken prisoner by Saddam Hussein's government during the 1991 Persian Gulf War."
Posted at 16:54 by Howard Bashman



"Miller asks U.S. Supreme Court to overturn Iowa court’s ruling": The Quad-City Times of Davenport, Iowa today reports here that "Iowa Attorney General Tom Miller said Tuesday that he once again would ask the U.S. Supreme Court to overturn an Iowa Supreme Court ruling that tossed out the state’s gaming tax structure and put gambling at the top of the legislative agenda this year." And last week The Des Moines Register reported that "Appeal weighed on casino tax ruling."
Posted at 16:45 by Howard Bashman



"Your Chance to Get a Justice Stevens Bobble Head Doll": Law Professor David Bernstein has this post over at "The Volokh Conspiracy."
Posted at 16:37 by Howard Bashman



Access online the lawsuit on behalf of a Pentagon defense lawyer challenging the constitutionality and legality of the military tribunals at Guantanamo: A copy of the pleading that initiated the suit, filed yesterday in the U.S. District Court for the Western District of Washington, can be accessed here. Georgetown Law Professor Neal K. Katyal is among the attorneys for the plaintiff.
Posted at 16:31 by Howard Bashman



The "mommy track" and gender discrimination: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit issued an opinion in a case in which the plaintiff, a school psychologist with a young child, sued a public school district for sex discrimination after it denied her bid for tenure. The opinion, written by Circuit Judge Guido Calabresi, explains in pertinent part:
This appeal thus poses an important question, one that strikes at the persistent "fault line between work and family – precisely where sex-based overgeneralization has been and remains strongest." Nev. Dep't of Human Res. v. Hibbs, 123 S. Ct. 1972, 1983 (2003). It asks whether stereotyping about the qualities of mothers is a form of gender discrimination, and whether this can be determined in the absence of evidence about how the employer in question treated fathers. We answer both questions in the affirmative.
You can access the complete decision at this link.
Posted at 16:22 by Howard Bashman



"Court to rehear appeal on 10 Commandments marker": The Omaha World-Herald reports here that "The full 8th Circuit U.S. Court of Appeals has set aside a previous ruling and agreed to hear Plattsmouth's legal arguments on why its Ten Commandments monument does not violate the Constitution." The divided three-judge panel's opinion can be accessed here, and my post noting that ruling is available at this link.

Today, The American Center for Law and Justice issued a press release entitled "Appeals Court Vacates Decision Declaring Plattsmouth, NE Ten Commandments Unconstitutional -- 8th Circuit to Rehear the Case." Finally, the September 2003 installment of my monthly appellate column published in The Legal Intelligencer was entitled "Take two tablets: Courts struggle over where to draw the line between Church and State."
Posted at 15:59 by Howard Bashman



Here's the question presented in the case that the Ninth Circuit took en banc today: The question presented is whether Alaskan native villages may retain aboriginal hunting and fishing rights in the outer continental shelf notwithstanding the United States' federal sovereignty and paramountcy in those waters. The Ninth Circuit appeared to have resolved this question in 1998, but it now seems that that decision was in arguable conflict with an earlier Ninth Circuit ruling, from 1989.
Posted at 15:53 by Howard Bashman



"Holy Matrimony: The most important gay marriage battles will be fought in the pews." Emily Bazelon, senior editor at Legal Affairs magazine, has this essay online at Slate.
Posted at 14:40 by Howard Bashman



"Book Review: 'Free Culture' and Copyrights." Today's broadcast of NPR's "Day to Day" contains this review (Real Player required) of Law Professor Lawrence Lessig's new book, which you can freely download at this link (352-page PDF file).
Posted at 14:38 by Howard Bashman



Ninth Circuit grants en banc review in case involving Alaskan native villages: Although this case was argued before a three-judge Ninth Circuit panel in Alaska on August 13, 2003, in late January 2004 the panel asked the parties to submit briefs addressing whether the case should initially be decided en banc. And today the Ninth Circuit issued an order granting an en banc hearing, even though no panel decision has been publicly released. If any of my Ninth Circuit-based readers happen to know what issues this case presents, please let me know via email.
Posted at 14:16 by Howard Bashman



"Slain Officer's Dad Seeks to Nix Marriage": The Associated Press reports here from Detroit that "In a case for both the law journals and the supermarket tabloids, the father of a slain police officer is fighting to have his son's brief marriage to a topless dancer annulled, claiming she lied about her sexual orientation when they were wed."
Posted at 14:06 by Howard Bashman



"Lea Fastow headed for trial after all": The Houston Chronicle provides this news update on a federal criminal prosecution arising from the Enron matter.
Posted at 13:50 by Howard Bashman



"Court to Release Audio Quickly in 2 Cases": The Associated Press reports here that "The Supreme Court will release audio tapes immediately after oral arguments in major cases about the U.S. government's response to terrorism and Vice President Dick Cheney's closed-door sessions to develop a national energy policy, a court spokeswoman said Wednesday."
Posted at 13:35 by Howard Bashman



Pledge of Allegiance: Senator Dianne Feinstein (D-CA) is now asking the four judge-Ninth Circuit panel testifying about a possible circuit split why the Pledge of Allegiance case did not receive rehearing en banc. You can access the Ninth Circuit's panel's amended decision and the opinions concurring in and dissenting from the denial of rehearing en banc at this link.
Posted at 11:57 by Howard Bashman



"Minnesota high court holds court in high school": The Minneapolis Star Tribune today contains an article that begins, "Watching the Minnesota Supreme Court do its business in his high school auditorium Tuesday left St. Paul Harding High senior Peter Hungiapuko with a sense of pride -- and a mild headache."
Posted at 11:04 by Howard Bashman



"Justices to hear deadbeat dad case; Ohio Supreme Court schedules oral arguments on no-procreation order": This article appears today in The Akron Beacon Journal. And The Associated Press reports that "Justices to decide reproduction rights."
Posted at 11:01 by Howard Bashman



"Justice Stevens speaking at USD Law School": The San Diego Daily Transcript reports here that "Supreme Court Justice John Paul Stevens is speaking at University of San Diego Law School April 7."
Posted at 10:57 by Howard Bashman



"Same-sex custody case is decided": The Portland Press Herald today contains this article. You can access yesterday's ruling of the Maine Supreme Judicial Court at this link.
Posted at 10:53 by Howard Bashman



Four Ninth Circuit Judges narrowly avoid having to be sworn-in before testifying at the Senate Judiciary Subcommittee hearing this morning: The judges were asked to stand and raise their right hands, which they then did, but Subcommittee Chairman Jeff Sessions (R-AL) at that point changed his mind, saying that the judges were present as "officers of the court."
Posted at 10:38 by Howard Bashman



Update on Senate Judiciary Subcommittee hearing on splitting the Ninth Circuit: Senator Dianne Feinstein (D-CA), in her opening statement at this morning's hearing, spoke more strongly in favor of dividing the Ninth Circuit than I had anticipated. When written statements become available online, I will link to them.
Posted at 10:27 by Howard Bashman



From this morning's broadcast of National Public Radio's "Morning Edition": This morning's broadcast included segments entitled "Two-Sport College Star Appeals Endorsement Ban" and "Trial Begins for White Supremacist Hale."
Posted at 10:10 by Howard Bashman



"Blocking the Vote; Defenders of racial preferences twist the law in Michigan": Ward Connerly has this essay today at National Review Online.
Posted at 10:02 by Howard Bashman



On the agenda: In just ten minutes from now, the Subcommittee on Administrative Oversight and the Courts of the Senate Judiciary Committee will begin a hearing entitled "Improving the Administration of Justice: A Proposal to Split the Ninth Circuit." You can view the hearing live, online at this link (Real Player required) once it gets underway.

Yesterday, I posted online several previews of today's hearing. You can access those previews here, here, and here.
Posted at 09:50 by Howard Bashman



Access online the U.S. Supreme Court oral argument transcript in the Pledge of Allegiance case: It is available here.
Posted at 08:54 by Howard Bashman



"Letters for Martha": Ben Greenman has this humorous item online at McSweeney's Internet Tendency.
Posted at 08:07 by Howard Bashman



"Adult-business suit sent to state court; City favored federal venue for constitutional challenge of law": The Courier-Journal of Louisville, Kentucky today contains an article that begins, "A federal judge has sent back to Jefferson Circuit Court a lawsuit challenging the new Louisville metro adult-entertainment law, saying it should be decided on state constitutional grounds."
Posted at 07:53 by Howard Bashman



In Wednesday's newspapers: The Washington Post reports that "ACLU Files Suit Over 'No-Fly' List; Air Passengers Seek Changes in 'Flawed' System." In other news, "Interior Dept. Is Denounced; Investigator of Indian Funds Resigns, Alleges Obstruction." An article reports that "For Sniper Victims, a Tribute; Memorial for Those Slain in Area Is Being Established in Montgomery." And letters to the editor appear under the heading "Rights and Wrongs in Sentencing Guidelines."

The New York Times reports that "Indian Fund Investigator Angrily Quits." In other news, "Kobe Bryant Says He Too Wants an Early Trial in His Rape Case." An article reports that "Trading in Lies, Some Informers Build Cases for Prosecutors." In international news, "Iraqis Meet With War Crimes Trial Experts." And columnist Nicholas D. Kristof has an op-ed entitled "The Abortion Question."
Posted at 07:40 by Howard Bashman



"Specter chides Dems on judges; He urges setting aside politics and promoting Van Antwerpen": This article appears today in The Morning Call of Allentown, Pa. And The Express-Times of Easton, Pa. today reports that "Specter blames Dems for confirmation delay."
Posted at 07:32 by Howard Bashman



"Appeals court judge is being charged with serious ethical breach": Columnist David Hawpe has this essay today in The Courier-Journal of Louisville, Kentucky.
Posted at 07:29 by Howard Bashman



"Breaking away": The Las Vegas Review-Journal today contains an editorial that begins, "Nevada Sen. John Ensign has revived the move to break up the massive 9th judicial circuit -- and his proposal seems a tad more sensible than previous suggestions."
Posted at 07:25 by Howard Bashman



Tuesday, April 06, 2004
In Tuesday's newspapers: In The New York Times, Linda Greenhouse reports that "Justices to Rule on Drug Dog at Traffic Stop." An article reports that "California Law on Killing Fetus Is Strengthened." In other news, "U.S. Appeals Court Backs State Efforts at Drug Cost Control." An article reports that "9/11 Panel Plans Hard Questions for the F.B.I. and Justice Dept." In local news, "Williams Trial Is Delayed Over Dispute on Evidence." An editorial is entitled "A Catch-22 for Ex-Offenders." And letters to the editor appear under the heading "The Tyco Mistrial, the Juror and the Press."

In The Washington Post, Charles Lane reports that "High Court Takes Search Case; Use of Drug-Sniffing Dog Led to 12-Year Sentence." An article reports that "Muhammad's Attorneys Argue for Mistrial; Defense Questions Conflicting Theories In Separate Cases." In other news, "Lentz Team Implicates Prosecutor." In news relating to the Tyco trial, "Jurors Criticize Length Of Tyco Prosecution; Lawyers Say Brevity Helps Keep Trial Controlled" and "Tampering Charges for Letter Writer Unlikely." An article reports that "DNA Tests Clear Ex-Va. Inmate, Lawyers Say." An editorial is entitled "Human Rights in Court." And columnist E.J. Dionne Jr. has an op-ed entitled "'God Bless Atheism.'"

In USA Today, Joan Biskupic reports that "High court takes police-dog case; At issue: Cops who use canines in traffic stops."

In The Boston Globe, Lyle Denniston reports that "Justices to weigh police dog car search." And in local news, "Poll finds split over marriage amendment."

In The Los Angeles Times, David G. Savage reports that "High Court to Rule on 'Canine Sniff' Search; In an appeal from Illinois, the justices will decide whether a police dog smelling for illegal drugs during a routine traffic stop is justifiable." Maura Dolan reports that "State Law on Killing of a Fetus Expanded." An article is headlined "A supreme standoff: Utah environmentalists are suing the BLM for failing to protect wild lands form vehicles." In regional news, "Media Lawyers Lobby for Less Stringent Secrecy on Jackson Grand Jury; Santa Barbara County officials are asked to take down barricades leading to a sheriff's training facility used in early proceedings"; "Jury Tosses Lawsuit Against D.A.; A fired O.C. prosecutor had sued Rackauckas and others over his June 2001 dismissal"; and "L.A. Times Wins 5 Pulitzer Prizes; It's the second-largest yearly total in history of the awards; The New York Times receives the Public Service medal." In sports-related news, "Bloom Appeals Endorsement Ban." An article asks "Are We Ready to Fret About Our Fries? Health officials worry about acrylamide, but don't want to create a needless cancer scare." And columnist Patt Morrison has an essay entitled "No Apology, but a Lot of Sorry Excuses."
Posted at 23:52 by Howard Bashman



"No O.K. Sign and No Guilty Vote by Juror No. 4": This article will appear Wednesday in The New York Times.
Posted at 23:46 by Howard Bashman



In news from California: Claire Cooper, legal affairs writer for The Sacramento Bee, reports today that "Fetal murder law is widened; State high court rules that a woman's killer needn't know she was pregnant."

The Oakland Tribune reports that "Court won't rehear county gun case; Alameda County Board of Supervisors' ban of weapons shows at fairgrounds will stand."

And The Metropolitan News-Enterprise reports that "Starr Again Named Dean of Pepperdine Law School."
Posted at 23:42 by Howard Bashman



"Judge Richard Arnold Named 2004 Morton Brody Judicial Service Award Recipient": Colby College of Waterville, Maine issued this press release today.
Posted at 23:41 by Howard Bashman



"Court rules bondage death was not murder": Wednesday's issue of The Courier-Mail of Brisbane, Queensland, Australia contains this report.
Posted at 23:32 by Howard Bashman



Choose litigation: In news pertaining to the U.S. Court of Appeals for the Fifth Circuit, The Associated Press reports here that "A long-running dispute over Louisiana's 'Choose Life' vehicle license plates comes for a second time Wednesday before a federal appeals court with the state's system for issuing all specialty plates potentially on the line."
Posted at 23:25 by Howard Bashman



"Sources: Letter to Tyco Juror Not 'Threatening.'" Reuters provides this report.
Posted at 23:20 by Howard Bashman



Over 4,000,000 served: Shortly after 11 p.m. tonight, "How Appealing" recorded its 4 millionth page view. Counting began on May 7, 2002, which was the second day of this blog's existence.
Posted at 23:15 by Howard Bashman



"Aisenbergs To Ask High Court To Hear Transcript Appeal": This article appears today in The Tampa Tribune. In somewhat related news, that newspaper today also contains an article headlined "High-Profile Lawyer Revels In Spotlight." My earlier coverage of the Aisenberg case can be accessed here.

Attorney Barry Cohen was also in the news in the Tampa Bay area today in an entirely different matter. The St. Petersburg Times today contains articles headlined "Elementary teacher drove hit-run car; no arrest made; Jennifer Porter apologized to the bereaved family Monday; Her attorney says she was too scared to stop" and "Lawyer spins his strategy in hit-run; Barry Cohen begins by painting his 28-year-old client as a frightened woman - not a cold-hearted coward - in the crash that killed two."
Posted at 23:00 by Howard Bashman



"U.S. Justice Department Prepares Assault on Pr0n": Slashdot discusses the article published today in The Baltimore Sun that I linked to here this morning.
Posted at 22:55 by Howard Bashman



"FCC to Seek Stay of Cable Internet Ruling": Reuters provides this report.
Posted at 22:45 by Howard Bashman



When doves cry: The Milwaukee Journal Sentinel reports that "State Supreme Court affirms dove-hunting right." And in other news from Wisconsin, the newspaper reports that "Justices court spectators; But students say proceedings lack drama of 'Judge Judy.'" (This post's title courtesy of the performer formerly, and apparently once again, known as Prince.)
Posted at 22:35 by Howard Bashman



"Court rejects ban on displays; City can't deny all Square applications": This article appears today in The Cincinnati Enquirer.
Posted at 22:32 by Howard Bashman



"Attorney sees Iraq as land of opportunity; Tennessee firm's clients seek rebuilding contracts": The Tennessean today contains this report.
Posted at 22:18 by Howard Bashman



Available online from law.com: Tony Mauro reports that "Kenneth Starr to Lead Pepperdine Law School." An article is headlined "Another Gun Fight at the 9th Circuit Corral." And in other news, "2nd Circuit Says 'Expert' Witness Strayed From His Expertise."
Posted at 22:12 by Howard Bashman



"ACLU Sues over Federal 'No-Fly' List": This evening's broadcast of NPR's "All Things Considered" included this report (Real Player required). You can access the ACLU's complaint filed today at this link. The ACLU today also issued a press release entitled "ACLU Files First Nationwide Challenge to 'No-Fly' List, Saying Government List Violates Passengers' Rights." The page containing the press release also offers more links to related materials.
Posted at 21:08 by Howard Bashman



U.S. Court of Appeals for the Tenth Circuit declares Oklahoma's "semi-closed" primary election system unconstitutional: You can access today's ruling at this link. The ruling appears to be a win for voters affiliated with third-parties.
Posted at 20:39 by Howard Bashman



"Polozola withdraws; Edwards' case reassigned to Tyson": This article appears today in The Advocate of Baton Rouge, Louisiana.
Posted at 18:49 by Howard Bashman



"Bill Pryor gets 'cover nomination'": Thanks to "Southern Appeal" for the pointer to this item published yesterday in The Mobile Register. I'm happy to see that I'm not the only person who has difficulty figuring out the meaning of the statute that governs whether a federal judicial recess appointee will be paid for his or her judicial service.
Posted at 17:33 by Howard Bashman



Sixth Circuit Judge Jeffrey S. Sutton speaks at the Moritz College of Law of The Ohio State University: Chris Geidner was there and provides this report. Judge Sutton's explanation of what it takes to be confirmed as a federal appellate court judge in the current political climate was telling: "First, lightning needs to strike. Then, you need to make sure you don't get killed by it." It's amazing to recall that the vote on Judge Sutton's confirmation showed that he lacked a filibuster-proof majority.
Posted at 16:45 by Howard Bashman



"Study Defends Music Sharing; Business School study says file swapping does not hurt music sales": This article appears today in The Harvard Crimson.
Posted at 16:30 by Howard Bashman



"Lawyers Rehearse at Supreme Court Practice": Gina Holland of The Associated Press provides this report.
Posted at 16:28 by Howard Bashman



Forthcoming blog milestones: One month from today, "How Appealing" will turn two years old. And sometime within the next several hours, "How Appealing" will serve up its four millionth page view, according to the Bravenet counter that's been counting visits to this blog since May 7, 2002, the day after this blog came into existence. On this blog's one year anniversary, the hit counter stood at 1,195,455. Finally, a little over one month ago, I noted a few blog-related fundraising goals. The contributions received from fans of "How Appealing" far exceeded my expectations in number and total amount. Due to those contributions and a development that will be announced here in due course, it appears that all of those goals have been achieved. In particular, it appears certain that this blog will be moving to a new Web address, perhaps before the end of this month. Whenever that move takes place, you can be sure it will be prominently noted in the post displayed at the top of this page.
Posted at 15:50 by Howard Bashman



The San Francisco Chronicle is reporting: In today's newspaper, Bob Egelko has articles headlined "Broad ruling on murder of fetus; Charge can apply before pregnancy visible, court finds" and "Court allows citizens to sue abusive cops." In other news, an article reports that "Gays find marriage a mixed bag; License doesn't guarantee benefits granted heterosexual couples."
Posted at 15:29 by Howard Bashman



"Court wary of disciplining judge; Panel: Charges against Pazuhanich may not warrant suspension." This article appears today in The Morning Call of Allentown, Pa.
Posted at 15:24 by Howard Bashman



"It's time to play by the rules, Ed": Columnist John Grogan has this essay today in The Philadelphia Inquirer.
Posted at 15:18 by Howard Bashman



The third and final day of The Seattle Times series "An Unequal Defense: The failed promise of justice for the poor." Today's lead article is headlined "A portrait of justice on the cheap; Frustrated attorney: 'You just can't help people.'" And today's related reports are headlined "Public-defense alternatives" and "Grant County faces lawsuit over public-defense system."
Posted at 15:00 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Doctor: Fetus Feels Pain After 20 Weeks" and "Ga. School-Evolution Debate Goes to Trial."
Posted at 14:31 by Howard Bashman



Access online the currently-pending legislation to divide the Ninth Circuit: S. 2278, introduced on April 1, 2004 by Senator John Ensign (R-NV), can be accessed at this link. I discussed this newly-proposed legislation this morning in a post that you can access here. H.R. 2723, introduced on July 14, 2003 by Representative Mike Simpson (R-ID), can be accessed at this link. And S. 563, introduced on March 6, 2003 by Senator Lisa Murkowski (R-AK), can be accessed at this link.

Last and undoubtedly least, one year ago, my monthly appellate column published April 14, 2003 in The Legal Intelligencer was entitled "When Considering A Split Of The Ninth Circuit, The Question Is Not Whether But How."
Posted at 14:00 by Howard Bashman



"Interior Accused of Shortchanging Indians": The Associated Press provides this report on today's developments in the Indian Trust litigation.
Posted at 13:47 by Howard Bashman



From today's broadcast of NPR's "Morning Edition": This morning's broadcast contained segments entitled "Medical Record Requests Raise Privacy Concerns"; "States Eye Protections for Campus Conservatives"; and "'L.A. Times' Wins Five Pulitzer Prizes" (Real Player required).
Posted at 12:08 by Howard Bashman



The Senate Judiciary Committee has posted online the witness list for tomorrow's hearing on whether to split the Ninth Circuit: You can access the witness list at this link. I think I see a few more pro-circuit split witnesses than I am used to seeing at the House Judiciary Committee hearings on this subject, so tomorrow's event should be quite interesting. Chances are that the hearing will be broadcast live over the Internet; tune in tomorrow morning for details.

Two of tomorrow's witnesses have participated in this blog's "20 questions for the appellate judge" feature and have, in doing so, answered questions about dividing the Ninth Circuit (see here and here). A total of four Ninth Circuit judges have served as "20 questions" interviewees: two of them favored a circuit split (see here and here) and two were opposed (see here and here).
Posted at 12:02 by Howard Bashman



Supreme Court of Wisconsin allows hunters to kill the state-designated "bird of peace": You can access today's ruling at this link. And The Associated Press reports that "Wisc. Upholds Hunting of Mourning Dove."
Posted at 11:01 by Howard Bashman



Not so special anymore: Yesterday, the attorney serving as special master in the Indian Trust litigation pending in the U.S. District Court for the District of Columbia tendered his resignation. Today, in an order you can access here, District Judge Royce C. Lamberth accepted the resignation "with profound regret." You can learn more about the case here and here.
Posted at 10:38 by Howard Bashman



"Data lacking on 'partial birth,' says witness for defense": This article appears today in The Omaha World-Herald. And Friday's edition of that newspaper contained an article headlined "Carhart talks of chilling effect of abortion procedure ban."
Posted at 10:23 by Howard Bashman



"Judge throws out broadcaster's suit to restore Moore to bench": The Associated Press provides this report from Alabama.
Posted at 10:19 by Howard Bashman



"Ensign proposes dividing 9th Circuit; Senator suggests Las Vegas as headquarters": The Las Vegas Review-Journal today contains this article. And The Las Vegas Sun reports that "Ensign bill would break up appeals court."

Yesterday, Senator John Ensign (R-NV) issued a press release entitled "Ensign bill will remove Nevada from jurisdiction of Ninth Circuit court; Legislation will create federal appeals court based in Las Vegas." Interestingly, gambling on the outcome of cases under submission would be allowed.

Coincidentally, tomorrow at 10 a.m., the Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts will hold a hearing on "Improving the Administration of Justice: A Proposal to Split the Ninth Circuit." Senator Jeff Sessions (R-AL) is scheduled to preside.
Posted at 10:01 by Howard Bashman



"King: Restrict 'activist' judges; A pro-life lawmaker said Monday that Congress should take steps to limit the power of federal courts in ruling on social issues." This article appears today in The Lincoln (Neb.) Journal Star.
Posted at 09:40 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Feds Open Defense in Abortion Lawsuit"; "Nichols Defense Suggests Wider Conspiracy"; and "ACLU Sues Government Over 'No-Fly' List."
Posted at 07:44 by Howard Bashman



"Justice drops out of rental dispute; Steele cites 'controversy' surrounding disclosure of previous decision": This article appears today in The News Journal of Wilmington, Delaware.
Posted at 07:40 by Howard Bashman



"Refusal by justices thwarts developer; The Supreme Court rejected a local case over 'isolated' wetlands, killing a development near Jefferson Avenue": The Daily Press of Hampton Roads, Virginia today contains this report.
Posted at 07:38 by Howard Bashman



"Juvenile Court judge to resign; Wandering child led to review of her fitness to keep job": This article appears today in The Atlanta Journal-Constitution.
Posted at 07:37 by Howard Bashman



The Houston Chronicle is reporting: Today's issue of the newspaper contains articles headlined "High court skips Halliburton case; Award to BJ Services stands" and "Supremacists to take TV case to high court."
Posted at 07:35 by Howard Bashman



"Visit with sex predators gets justice in hot water": This article appears today in The Seattle Times. The Seattle Post-Intelligencer reports that "State justice accused of ethics breach; Sanders talked to sex predators with pending cases, panel says." And The News Tribune of Tacoma contains an article headlined "Justice Sanders under scrutiny."
Posted at 07:25 by Howard Bashman



"Judge sends Cobb evolution issue to trial; Suit says stickers in text promote a religious view": The Atlanta Journal-Constitution today contains an article that begins, "A federal judge in Atlanta has kept alive a lawsuit that seeks to have Cobb County remove disclaimers about evolution from its textbooks."
Posted at 07:24 by Howard Bashman



"High court to hear Md. bootlegging case; Appeal filed by 3 men convicted in scheme to sneak liquor into Canada": The Baltimore Sun today contains this report.
Posted at 07:19 by Howard Bashman



"Administration wages war on pornography; Obscenity: For the first time in 10 years, the U.S. government is spending millions to file charges across the country." This article appears today in The Baltimore Sun.
Posted at 07:18 by Howard Bashman



"Court accepts drug-dog case; Madigan's appeal seeks to bolster police": The Chicago Tribune today contains an article that begins, "The U.S. Supreme Court agreed Monday to review an Illinois Supreme Court decision that curbed the power of police to use drug-sniffing dogs during routine traffic stops." The Chicago Sun-Times reports that "High court to use Illinois case to rule on drug-sniffing dogs." And The Pittsburgh Post-Gazette contains an article headlined "May dogs sniff speeders for drugs?"
Posted at 07:11 by Howard Bashman



"Kenneth Starr Named Dean of Pepperdine": The Associated Press provides this report. And yesterday's issue of The Columbia Spectator contained an article headlined "Ken Starr Speaks on U.S. Supreme Court; Made Famous by Prosecution of President Clinton, Starr Spoke Friday at Law School."
Posted at 07:00 by Howard Bashman



Monday, April 05, 2004
"Killers Are Liable for Fetus Deaths, Court Says": Maura Dolan will have this article in Tuesday's edition of The Los Angeles Times.
Posted at 23:55 by Howard Bashman



"As politics flare, judicial appointments take a 'recess'; It's an election year, but the unprecedented partisan furor also reflects a constitutional debate and key role of courts." This article will appear in Tuesday's issue of The Christian Science Monitor.
Posted at 23:40 by Howard Bashman



In Monday's newspapers: The New York Times, in coverage of the Tyco prosecution, reports that "Jurors, Fresh From Deliberations, Recall What Led to Tyco Mistrial" and "After a Mistrial, Choices to Make." In technology-related news, "A Heretical View of File Sharing." And an editorial is entitled "Reproductive Rights Assaulted."

In The Washington Post, Charles Lane has an article that asks the question "A 'Flip-Flop' on Patients' Right to Sue?" A front page article is headlined "Inventing a Marriage -- and a Divorce; Gay Pair Who Wed in '70s Recall Journey Uncharted by Law." An editorial is entitled "Misplaced Energy." And a letter to the editor appears under the heading "One for the Other Justices."

The Washington Times reports that "Patriot Act divides Bush loyalists." And Tom Bray has an op-ed entitled "Pledge pleadings."

USA Today, in coverage of the Tyco prosecution, contains articles headlined "Excess from prosecution, media mark Tyco mistrial"; "Tyco jurors: Reports of discontent overblown; Members say laughs plentiful"; and "Setbacks won't deter prosecution of white-collar crime; Big wins offset high-profile letdowns." And in news from Pennsylvania, "Ideological battle in primary reveals split in GOP; Conservative Toomey surprisingly strong against moderate Specter."

The Los Angeles Times reports that "Jury Questioning to Resume in Peterson Trial; Attitudes toward law enforcement emerge as a key issue; Consultants will help attorneys pick those seen as the most favorable to their side." In other news, "Claremont Professor's Past Is a New Puzzle." A front page article is headlined "Sending Greetings From All the Gang; State prisoners can't resist exchanging homemade birthday cards, which provide investigators with a rich source of intelligence." And letters to the editor appear under the headings "Serving on a Jury Is a Trial in Itself" and "Fetus Now Legally Has a Separate Identity."
Posted at 23:15 by Howard Bashman



Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained segments entitled "'Brown v. Board:' Integration as Racism"; "Sex Offenders: Community Rejection"; "Sex Offenders: Medical Treatment"; "'L.A. Times' Nets Five Pulitzer Prizes"; and "'N.Y. Times' Wins Pulitzer" (Real Player required).
Posted at 23:00 by Howard Bashman



In news from the U.S. Virgin Islands: The St. Thomas Source today contains an article headlined "Further Appeal in Contract Case Uncertain" and on Saturday contained an article headlined "Appeals Court Upholds Sewage Contract Order."
Posted at 22:59 by Howard Bashman



"Funds at Risk Due To ROTC Policy": Today's issue of The Harvard Crimson contains an article that begins, "Universities that don’t allow Reserve Officer Training Corps (ROTC) programs on campus could lose millions in federal funds under legislation passed by the House of Representatives last week. The measure also strengthens the 1996 Solomon Amendment, under which the Pentagon has threatened to block federal grants to schools that limit military recruiters’ access to students."
Posted at 22:42 by Howard Bashman



"Bomb scare closes Yale Law School": The Yale Daily News today contains this article.
Posted at 22:40 by Howard Bashman



"'Drive-by porn' bill taken up by House; Measure to ban obscene films in cars too broad, critics say": This article appears today in The Tennessean.
Posted at 22:19 by Howard Bashman



Available online from law.com: In news from California, "Oblivious Killing of Fetus Still Murder, Says Calif. High Court" and "Milberg Weiss Attempts to Calm Judge's Ire; Firm says judge was misled before firing off allegations." Shannon P. Duffy reports that "Alleged Sexual Harasser Wins Battle for Benefits." And in news from New York, "Angry Judge Torpedoes Fee Request in Holocaust Case."
Posted at 22:01 by Howard Bashman



"Senator wants to divide 9th Circuit into three circuits": The Associated Press reports here that "A Nevada senator proposed splitting up the federal appeals court with jurisdiction over much of the West, saying rulings by the 9th U.S. Circuit Court of Appeals are too liberal and its caseload too large." The article goes on to note that "a reconfigured 9th Circuit would oversee California, Guam, Hawaii and the Northern Marianas Islands. A new 12th Circuit, based in Las Vegas, would encompass Arizona, Nevada, Idaho and Montana. A new 13th Circuit would cover Alaska, Oregon and Washington." The Thirteenth Circuit probably would not be popular among residents of Alaska, Oregon, and Washington who suffer from triskaidekaphobia.
Posted at 21:42 by Howard Bashman



"Polozola recuses himself in Edwards case": The Advocate of Baton Rouge, Louisiana reports here that "U.S. District Judge Frank Polozola has recused himself from reconsidering a verdict against former Gov. Edwin Edwards. In a ruling issued Monday, Polozola said he had no doubt he could preside over the case 'in a fair, honest, and impartial manner.' But he said he recused himself because his medical status had become an issue in the case." And The Associated Press reports that "Judge Steps Aside in La. Gov. Records Case."
Posted at 21:29 by Howard Bashman



In other news coverage from the U.S. Supreme Court: James Vicini of Reuters reports that "Supreme Court to Rule on Sniffer Dogs at Traffic Stops." Reuters also reports that "U.S. Top Court to Decide Reach of Wire Fraud Law" and "Supreme Court Denies Halliburton Appeal."

Meanwhile, Anne Gearan of The Associated Press reports that "Supreme Court to Rule on Drug Dog Limits." And in other coverage, "High Court Refuses Skippy Trademark Case."
Posted at 21:20 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Supreme Court Sidesteps Wetlands Disputes" and "L.A. Times Wins Five Pulitzer Prizes" (which makes me proud to have published an op-ed there last year).
Posted at 17:24 by Howard Bashman



"Injudicious: The Senate Judiciary Committee has long been partisan. But with recess appointments and the GOP stealing computer files, it's now also rigged." This essay by Heidi Pauken appears in the April 2004 issue of The American Prospect.
Posted at 17:18 by Howard Bashman



"New Fayette prison houses 'worst of the worst'": This article appeared yesterday in The Tribune-Review of western Pennsylvania. And related articles were headlined "Placement in LTSU based on behavior" and "Who are among SCI-Fayette's tenants?"
Posted at 17:14 by Howard Bashman



"Supreme Court appeal bids as much art as science; There are unwritten rules to crafting a successful application": This article appears today in The Toronto Globe and Mail.
Posted at 17:11 by Howard Bashman



"11 States Seeking To Scupper Deal In Cosmetics Case; Settlement Would Enrich Lawyers": The New York Sun today contains this front page article by Josh Gerstein.
Posted at 17:05 by Howard Bashman



Mental illness can toll deadline for appeal, U.S. Court of Appeals for the Federal Circuit holds: You can access today's ruling at this link. Apparently the Federal Circuit was one of the few federal appellate courts yet to have considered this issue; the others have arrived at somewhat conflicting resolutions of the issue.
Posted at 15:05 by Howard Bashman



"U.S. Court rejects appeal of order that voided no-bid sewer contract; Decision reaffirms Judge Thomas Moore's ruling that nixed Global Resources deal": This article appears today in The Virgin Islands Daily News.
Posted at 15:00 by Howard Bashman



Three years and ten months after oral argument, U.S. Court of Appeals for the Fourth Circuit issues nine-page affirmance: See this opinion issued today. My question from last month has been answered.
Posted at 14:45 by Howard Bashman



The AP is reporting: David Kravets reports that "Calif. Court Rules on Fetal-Murder Law." And in news from Lincoln, Nebraska, "Witnesses Called in Abortion Ban Defense."
Posted at 14:17 by Howard Bashman



"Supreme Court to Clarify Wire Fraud Rules": Gina Holland of The Associated Press provides this report.
Posted at 14:02 by Howard Bashman



"Our court has erased 10% of the Bill of Rights for 20% of the American people." The U.S. Court of Appeals for the Ninth Circuit today issued an order denying rehearing en banc in another case that would have allowed that court to reconsider whether the Second Amendment to the United States Constitution confers an individual right to bear arms. The quotation that serves as this post's title comes from the dissent of Circuit Judge Andrew J. Kleinfeld. A total of five judges dissented from the denial of rehearing en banc, and Circuit Judge Ronald M. Gould has written a lengthy dissenting opinion. Circuit Judge Alex Kozinski explains why he is not among those five in a short concurring opinion you can access here. The three-judge panel's opinion is available at this link. It is noteworthy that all three judges on that panel favored the granting of rehearing en banc. My earliest post on the three-judge panel's opinion can be accessed here, and I later collected news coverage of the ruling here.
Posted at 13:25 by Howard Bashman



Today's rulings from the Supreme Court of California: Associate Justice Janice Rogers Brown issued a majority opinion today that begins:
A defendant shoots a woman, killing her. As a result, her fetus also dies. In the absence of evidence the defendant knew the woman was pregnant, may the defendant be held liable for the second degree implied malice murder of the fetus? We conclude he may, and therefore reverse the judgment of the Court of Appeal.
The court's vote on the case was 6-1. Justice Brown has been nominated to serve on the U.S. Court of Appeals for the D.C. Circuit, but her nomination is currently the subject of a filibuster in the U.S. Senate.

The other decision announced today involved the question "Does a sheriff act on behalf of the state or county when conducting a criminal investigation, including detaining suspects and searching their home and vehicle?" The court ruled, on a 4-3 vote, that "sheriffs act on behalf of the state when performing law enforcement activities" and therefore are absolutely immune from tort liability under the federal Civil Rights Act for their performance of law enforcement activities. Associate Justice Kathryn M. Werdegar disagreed with the majority's resolution of this issue, and her opinion concludes:
Until this question is resolved, federal district courts in California will be required to follow one rule, permitting section 1983 suits against sheriffs' departments, while California superior courts will be required to follow the opposite rule, prohibiting such actions. I urge the United States Supreme Court to consider removing this anomaly by deciding the underlying issue of federal law.
The Ninth Circuit's decision from December 2001 reaching a contrary result from today's California Supreme Court ruling can be accessed here. Apparently plaintiffs who wish to bring such actions will now have strong reason to file suit in federal court, instead of in a California state court.
Posted at 13:02 by Howard Bashman



"In her own defense: Saying she alone grasped the concept of presumption of innocence, Ruth Jordan stands by her vote and chides the other 11 on the panel." This article appears today in Newsday.
Posted at 12:12 by Howard Bashman



U.S. Court of Appeals for the Eighth Circuit rejects establishment clause challenge to the federal Church Arson Prevention Act: Today's ruling is available here. The text of the Church Arson Prevention Act can be viewed at this link. And President Clinton's remarks at the ceremony for the signing of this law can be accessed here.
Posted at 12:02 by Howard Bashman



U.S. Court of Appeals for the Eighth Circuit affirms extended prison sentence for pharmacist who diluted drugs used to treat cancer: You can access today's ruling at this link. The trial court's explanation of why it imposed an extended prison sentence can be accessed here. The local U.S. Attorney's Office issued this press release following the sentencing. And earlier news coverage of this matter can be accessed here and here.
Posted at 11:52 by Howard Bashman



"Limbaugh records case opens this week": The Palm Beach Post reports here today that "Rush Limbaugh may be a flash point of inflamed opinion and rhetoric, but it's the dry 20-minute court appearance his attorney will make this week that matters most. Limbaugh's attorney, Roy Black, will argue Wednesday before the 4th District Court of Appeal in West Palm Beach that Limbaugh's medical records were seized illegally and should be returned to him."
Posted at 11:47 by Howard Bashman



Day two of The Seattle Times series "An Unequal Defense: The failed promise of justice for the poor." Today's article is headlined "A case study in exploitation: Attorney profited, but his clients lost."
Posted at 11:45 by Howard Bashman



Coming soon from the Supreme Court of California: That court is scheduled to announce two opinions today. The first case presents the following question:
Must a defendant know that a woman is pregnant before the defendant can be convicted of the implied malice murder of her fetus, or may such a conviction be based simply on the defendant’s conscious disregard of the risk his or her conduct poses to human life in general, at least in the context of a mother and her unborn child?
And the second case includes the following issue:
For purposes of determining potential liability in a suit brought under the federal civil rights provisions set forth in 42 U.S.C. section 1983, are criminal investigations conducted by a county sheriff actions that are carried out on behalf of the state or, alternatively, actions that are carried out on behalf of the county?
Opinions are scheduled to be released today at 1 p.m. eastern time, 10 a.m. pacific time. The opinions will be accessible via this link.
Posted at 11:40 by Howard Bashman



"High court clerk has link to La.; Tulane law graduate finds way to Washington, D.C.": The Advocate of Baton Rouge, Louisiana today contains an article that begins, "LSU law school graduates going before the U.S. Supreme Court to be admitted to practice can expect to take a razzing from William K. Suter. That's because the clerk of the highest court in the land attended law school down the road at Tulane University in New Orleans."
Posted at 11:31 by Howard Bashman



"Appeals court could become all-female panel": An article published today in The San Antonio Express-News reports that "the San Antonio-based 4th Court of Appeals, a seven-judge tribunal that presides over 32 South Texas counties, [could] become the first all-female court in the state and, by many accounts, the nation."
Posted at 11:22 by Howard Bashman



"Suit on light and low-tar cigarettes heads to SJC": The Boston Globe today contains an article that begins, "Massachusetts, which has often been in the vanguard of legal challenges to the tobacco industry, will be so again today when the state's highest court considers whether the nation's biggest seller of cigarettes duped smokers into believing that 'light' and 'low tar' brands were safer than regular cigarettes."
Posted at 11:11 by Howard Bashman



"Dispute Flares Over Recess Appointments; Senate Democrats, White House Focus On Pickering, Pryor": That's the headline of Brent Kendall's article today in The Daily Journal, a California-based legal newspaper. Unfortunately, the article is available online only to paid subscribers. The article quotes me and Law Professor Douglas W. Kmiec.

Kendall also interviewed former Ninth Circuit Judge William A. Norris, who is the only federal appellate judge ever to have issued an opinion declaring federal judicial recess appointments unconstitutional. See United States v. Woodley, 726 F.2d 1328 (9th Cir. 1983). The Ninth Circuit took that case en banc, and the eleven-judge en banc panel reached the opposite result, with Judge Norris writing a a powerfully persuasive dissenting opinion on behalf of himself and three colleagues. See United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc), cert. denied, 475 U.S. 1048 (1986).

Today's article states:
"I have looked at that opinion again recently, and I like it," Norris said last week. "Article III applies only to federal judges. And federal judges are made independent because they have life tenure and cannot have their salaries reduced.

"That's so precise, so specific that I think that, if James Madison and the others had paused to think about that conflict, they would have had no difficulty resolving it in favor of Article III [over recess appointments]."
The article quotes me as saying that it is likely, in a case where the stakes are high enough and the recess appointee's vote makes a difference in the outcome, that a litigant will challenge the constitutionality of Article III judicial recess appointments. For more on this topic, see the March 2004 installment of my monthly appellate column published in The Legal Intelligencer.
Posted at 10:31 by Howard Bashman



Today's U.S. Supreme Court Order List: The list is available at this link. The Court granted review today in two cases. And the Court issued no opinions today.

In news coverage of today's Order List, The Associated Press reports that "Supreme Court Won't Hear Halliburton Case."
Posted at 10:00 by Howard Bashman



Just in time for Passover: A unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit today affirmed a federal district court's preliminary injunction that allowed two Jewish groups to erect a large menorah display on the main public square in Cincinnati, Ohio during the winter holiday season. You can access today's ruling at this link.
Posted at 09:50 by Howard Bashman



On the agenda: At 10 a.m. today, the Supreme Court of the United States is scheduled to issue an Order List and may also issue opinions in one or more argued cases.
Posted at 09:30 by Howard Bashman



"Disentangle Judge Van Antwerpen from Washington's political game": This editorial appears today in The Morning Call of Allentown, Pa.
Posted at 09:14 by Howard Bashman



Female law students nicknamed after pork products blog from the University of Pennsylvania School of Law: And all they are asking for is 250 unique visits per day. This ought to do the trick for Monday, April 5th, 2004, so please be sure to visit "Notes from the (1L) Underground."
Posted at 00:01 by Howard Bashman



Sunday, April 04, 2004
Available online from law.com: This weekend's articles all originate from New York -- "Liability Widens for Fetal Death Caused by Doctors; Distress damages do not require bodily harm to women"; "Lawyers Voice Concern Over Tyco Trial Fallout; Wide avoidance of jury duty is among fears"; and "Dad Shares Death Benefit for Abandoned Son, a WTC Victim."
Posted at 23:55 by