How Appealing

Wednesday, June 30, 2004
"O.C. Gang-Rape Suspects Will Be Retried; The D.A. acts after a jury deadlock in the case against a top official's son and two others": This article appears today in The Los Angeles Times.
Posted at 23:45 by Howard Bashman



A quick report on today's Third Circuit oral argument in the Solomon Amendment case: As is often the case, it's difficult to predict how the three-judge panel that heard oral argument today is likely to rule on this matter, which I recently previewed here. Only two of the three judges took part in the questioning, and one of those two seemed quite firmly in favor of affirmance of the trial court's decision refusing to enjoin the law, while the other seemed to be troubled by whether the law was truly necessary when enacted, a point that the parties themselves did not appear to have spent too much time focusing on in the proceedings leading up to today. Thus, with one judge seeming to favor affirmance, another whose vote is in doubt, and a third who provided no basis for prediction, I lack sufficient information to provide a reliable guess as to the outcome.

What I can tell you with confidence is that it was a pleasure to finally meet former Acting Solicitor General Walter E. Dellinger, III, who is even more charming in person than I had expected. Also present for the argument was military analysis blogger extraordinaire Phillip Carter, who was one of the drafters of the amicus brief that I had the privilege of submitting in the case.
Posted at 23:40 by Howard Bashman



In news coverage of yesterday's U.S. Supreme Court rulings: In The Los Angeles Times, David G. Savage reports that "Court Rejects Law Blocking Internet Porn; The justices affirm online free speech and suggest software filters are a more effective way to shield minors from explicit sexual material." Bob Egelko of The San Francisco Chronicle reports that "High court won't allow enforcement of porn law; Right to free speech trumps concerns over kids' Internet access." Joan Biskupic of USA Today reports that "Justices block limits on Net porn; Say law could pose threat to free speech" and "It may be up to parents to block Web porn; In rejecting online law, court suggests using computer filters." The Boston Globe reports that "Justices bar curbs on explicit websites; Free-speech concerns in child protection case." The Washington Times reports that "Court rejects Internet porn law." Stephen Henderson of Knight Ridder Newspapers reports that "Supreme Court rules against Internet porn law." The Sacramento Bee reports that "Justices rule against law regulating porn on Web." The San Jose Mercury News reports that "Court blocks law to shield minors from online porn." The Pittsburgh Post-Gazette reports that "Supreme Court blocks law to protect kids from Internet porn." The Atlanta Journal-Constitution reports that "High court blocks online porn law." The Hartford Courant reports that "Top Court Rules Against Porn Law; Measure To Protect Children Violates Freedom Of Speech, Justices Find." The Newark Star-Ledger reports that "Justices block law keeping kids from Web porn." And tonight's broadcast of the PBS program "NewsHour with Jim Lehrer" contained this report on the ruling.

In coverage of yesterday's other ruling, Bob Egelko of The SFChronicle reports that "Supreme Court rejects suit over U.S.-hired kidnap; But majority backs foreigners' right to sue for grave abuses." The LATimes reports that "Court OKs Foreign-Abuse Suits; Justices say a 1789 law permits a narrow class of such lawsuits; Ruling may affect a Unocal case." The Washington Times reports that "Justices restrict suits by foreigners." The Dallas Morning News reports that "Justices rule man can't sue over Mexico arrest; Doctor abducted to face trial, then acquitted, can't press cases in U.S." The Pittsburgh Post-Gazette reports that "Supreme Court rejects rights suit; Justices limit ability of foreigners to sue U.S. government for violations of international law." And The Atlanta Journal-Constitution reports that "Foreigners may not sue over captures; U.S. agents immune for most acts abroad."
Posted at 23:32 by Howard Bashman



Available online from law.com: Jeff Chorney reports that "9th Circuit Dominates Top Docket; Court's reversal rate follows recent trend; number of cases opens eyes." Related items are headlined "How the West Was Reversed" and "The Ninth Circuit's reversal rate through the years." Shannon P. Duffy reports that "U.S. Supreme Court Won't Hear 3M's Appeal of $68 Million Award." And in other news, "Computer Ban for Pedophile Is Too Broad, Says Calif. Court."
Posted at 23:20 by Howard Bashman



Additional commentary on Monday's U.S. Supreme Court rulings: At National Review Online, Andrew C. McCarthy has an essay entitled "A Mixed Bag: The Supreme Court’s combatants decisions." And online at Reason, Nick Gillespie has an essay entitled "Rights for All: Civil liberties with Rasul, Hamdi, and Padilla."
Posted at 21:08 by Howard Bashman



U.S. Court of Appeals for the Ninth Circuit affirms dismissal, for lack of personal jurisdiction over the defendant, of lawsuit that Arnold Schwarzenegger brought against Ohio car dealership for infringing his right of publicity: You can access today's ruling at this link.
Posted at 17:54 by Howard Bashman



Supreme Court of North Carolina orders God's return to courtroom: The Winston-Salem Journal reports today that "Court favors petition for God; Judge must restore references to deity in his courtroom." And The Associated Press reports that "N.C. Judge Must Restore God Reference."
Posted at 17:19 by Howard Bashman



"Brothers in Law?: Why Clarence Thomas and Antonin Scalia are at odds in so many cases." The New Republic Online today offers this essay by Will Baude, whose blog you can access here.
Posted at 17:10 by Howard Bashman



If only more returns to the office from an oral argument before the U.S. Court of Appeals for the Third Circuit were this pleasant: Two particularly important emails awaited me on my return to the office this afternoon. First, and of greater interest to readers of this blog, Tenth Circuit Judge Paul J. Kelly, Jr. -- July 2004's "20 questions for the appellate judge" interviewee -- this afternoon transmitted his 20 answers, and this interview now ranks among my favorites. Although I typically post these interviews online on at midnight on the first Monday of each month, I will be posting this interview online at midnight on Tuesday, July 6, 2004 because the preceding day is a federal holiday.

The other item of good news awaiting me was this ruling that the U.S. Court of Appeals for the Third Circuit issued today in a case in which that court had appointed me to brief and argue a shareholder derivative suit attorney's fee dispute as amicus curiae in support of affirmance. You can access at this link the brief that I filed. Today, a three-judge panel of the court unanimously affirmed, in a decision written by Circuit Judge Dolores K. Sloviter.
Posted at 16:48 by Howard Bashman



"Appeals Court Upholds Microsoft Antitrust Deal": Reuters provides this report on today's unanimous en banc ruling of the U.S. Court of Appeals for the D.C. Circuit. And The Associated Press reports that "Court Approves Microsoft Deal With U.S."
Posted at 16:43 by Howard Bashman



Today's other U.S. Supreme Court news of note: In addition to today's Order List, the Supreme Court issued a summary affirmance in Cox v. Larios, No. 03-1413, upholding a federal trial court's ruling that Georgia's legislative reapportionment plans for the state House of Representatives and Senate violate the one-person, one-vote principle of the equal protection clause. You can access the order of affirmance and a concurring opinion by Justice John Paul Stevens, in which Justice Stephen G. Breyer joined, at this link. Justice Antonin Scalia dissented in an opinion you can access here. Election Law Professor Rick Hasen explains what it all means in a blog post accessible at this link.

In news coverage of today's developments at the Court, The Associated Press reports that "Supreme Court Upholds Ga. Redistricting," while Gina Holland reports that "High Court Won't Rule on Scotch Tape Suit." Reuters reports that "Supreme Court Rejects Georgia Redistricting Plan" and "Supreme Court Rejects 3M Appeal on Antitrust Award." And The Atlanta Journal-Constitution reports that "Supreme Court gives Republicans victory in redistricting dispute."
Posted at 16:27 by Howard Bashman



Just back from today's oral argument before the U.S. Court of Appeals for the Third Circuit in the Solomon Amendment case: Regular blogging to resume momentarily.
Posted at 16:11 by Howard Bashman



Today's U.S. Supreme Court Order List: You can access is online at this link.
Posted at 10:00 by Howard Bashman



Available online from C-SPAN: The following two segments, originally televised yesterday, are now available for viewing online, on demand: "Georgetown University Law Center panel on U.S. Supreme Court rulings in the terrorism and detainee cases" and "Los Angeles Times correspondent David G. Savage discusses U.S. Supreme Court rulings in terrorism and detainee cases" (Real Player required).
Posted at 09:41 by Howard Bashman



"Courts delay two Texas executions": The Houston Chronicle contains this article today.
Posted at 09:40 by Howard Bashman



The Courier-Journal is reporting: Today's newspaper contains articles headlined "School racial plan in Louisville upheld; But judge orders revision of student-assignment policy for traditional schools"; "Race lottery is unconstitutional, judge rules"; and "Many consider the ruling a 'victory.'" You can access yesterday's ruling by Chief Judge John G. Heyburn II of the U.S. District Court for the Western District of Kentucky at this link.
Posted at 09:24 by Howard Bashman



U.S. Court of Appeals for the Sixth Circuit rules that Wal-Mart's policy prohibiting breast-feeding other than in the restroom doesn't violate Ohio's public accommodation law: You can access today's ruling, by a unanimous three-judge panel, at this link.
Posted at 09:20 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": The broadcast contained segments entitled "Alien Tort Case" (featuring Nina Totenberg) and "Tribunal Formed to Try Guantanamo Detainees" (Real Player required).
Posted at 09:09 by Howard Bashman



"Ten Commandments for sale to highest bidder in Duluth": This article appears today in The Minneapolis Star Tribune. In other coverage, The Duluth News Tribune today reports that "Monument supporters pray for fix; Hundreds came out in Duluth to rally for a solution to the monument's removal" and yesterday contained an article headlined "Thou shall not quit: Members of a group hoping to save Duluth's Ten Commandments monument plan a service today as the city accepts bids for the monument." Plus, this short item contains details on how you can purchase the monument.
Posted at 09:06 by Howard Bashman



"'Barbie' misery may be at end; Appeals court denies Mattel in photo case": The Deseret Morning News today contains this article.
Posted at 09:04 by Howard Bashman



"Utah federal judge: Sentence guidelines unconstitutional." This article appears today in The Salt Lake Tribune. And The Deseret Morning News reports today that "Judge tosses federal guides; Cassell says rules on sentencing unconstitutional." You can access yesterday's ruling by District Judge Paul G. Cassell of the U.S. District Court for the District of Utah at this link.

Thanks much to Law Professor Douglas A. Berman, author of the new blog "Sentencing Law and Policy," for the pointer.
Posted at 08:49 by Howard Bashman



"Renouncing their citizenship": The Seattle Times today contains an article that begins, "There's a little-known story about a group of Americans who for a decade or so after World War II really weren't Americans at all."
Posted at 08:47 by Howard Bashman



"Judge Calabresi's letter of apology": Law Professor Eugene Volokh has posted the text of the letter online, and you can access it here.
Posted at 06:20 by Howard Bashman



On the agenda: The Supreme Court of the United States is expected to issue an Order List at 10 a.m. today. Stay tuned for details.
Posted at 06:15 by Howard Bashman



Available online at law.com: Tony Mauro reports that "U.S. Supreme Court Blocks Internet Porn Law; In separate case, the Court's rejection of a claim under the Alien Tort Statute could impact Guantanamo Bay detainees." In news relating to the war on terror, "Prosecutors Draft Charges Against Accused 'Dirty Bomber'" and "Ashcroft: Combatants Can Get Due Process Outside 'Judicial Processes.'" In news from California, "Lifelong Sex-Offender Registration Ruled Not Cruel." And Shannon P. Duffy has an article headlined "3rd Circuit: Retroactive Application of Immigration Law Limited; Breaking ranks, 3rd Circuit extends 'St. Cyr' to aliens convicted at trial."
Posted at 06:11 by Howard Bashman



"Gay wed foes lose again, aim for Supreme Court": This article appears today in The Boston Herald.
Posted at 06:00 by Howard Bashman



"American People Ruled Unfit to Govern": Today's issue of The Onion contains an article that begins, "In a historic decision with major implications for the future of U.S. participatory democracy, the Supreme Court ruled 8-1 Monday that the American people are unfit to govern."
Posted at 00:17 by Howard Bashman



Tuesday, June 29, 2004
Charles Lane is reporting: Wednesday's issue of The Washington Post will contain articles headlined "Justices Oppose Internet Porn Law; Case Is Returned To Lower Court" and "Rights Ruling a Compromise; Court Urges Narrow Interpretation on Letting Foreigners Sue in U.S."
Posted at 23:54 by Howard Bashman



In Wednesday's issue of The New York Times: Linda Greenhouse will have articles headlined "Court Blocks Law Regulating Internet Access" and "Human Rights Abuses Worldwide Are Held to Fall Under U.S. Courts."
Posted at 22:43 by Howard Bashman



In news coverage of yesterday's U.S. Supreme Court rulings: The Charleston Post and Courier, currently the hometown newspaper for Yaser Esam Hamdi and Jose Padilla, reports that "Supreme Court torpedoes 'enemy combatant' policy." Charles Lane of The Washington Post reports that "Justices Back Detainee Access To U.S. Courts; President's Powers Are Limited," while a related article reports that "Attorneys for Detainees Plan Fast Action." In The New York Times, Adam Liptak reports that "For Prisoners, Only Certainty Is Right to a Court Hearing," while a related article reports that "In Classic Check and Balance, Court Shows Bush It Also Has Wartime Powers." In The Los Angeles Times, David G. Savage reports that "High Court Says Detainees Have Right to Hearing; Justices say the war on terrorism does not give the president a 'blank check' to hold suspects," while related articles report that "Wartime President Is Again Outflanked"; "The Courtrooms Are Open, Now It's Up to the Lawyers; Still unknown is when the hearings will begin and how far the rights of prisoners will extend"; and "Former Detainees and Other 'Friends of the Court' Cheer."

Joan Biskupic of USA Today reports that "Court curbs terror policies," while a related article is headlined "Detainees still will face many hurdles to freedom." The Chicago Tribune reports that "Justices rule that detainees get day in court; Guantanamo Bay inmates granted similar rights" and "Ruling could muffle Bush critics on key political issue." The Boston Globe reports that "Rulings afford detainees their day in court." The Baltimore Sun reports that "Bush rebuffed on detention of terror suspects; Court rules U.S. citizens, foreign nationals can challenge imprisonment; Limit to wartime powers" and "Ruling helps detainees achieve place in U.S. history; High court sets back Bush legal claim on terrorism in cases of the two men." The Miami Herald contains an article headlined "Court: U.S. law covers detainees; The Supreme Court struck down a central element in the war on terrorism by ruling that U.S. law applies to Guantanamo detentions, allowing suspects to contest their captivity in U.S. courts." The San Francisco Chronicle reports that "Justices affirm rights of detainees; Terror suspects must be given access to U.S. courts." The Houston Chronicle reports that "Terror suspects have right to use courts, justices rule; O'Connor: State of war is not blank check." The Pittsburgh Post-Gazette reports that "Supreme Court decision protects detainees; Says Bush administration doesn't have 'blank check' during war." Newsday reports that "Detainees can challenge imprisonment, Supreme Court says; Fractured Supreme Court rules 'enemy combatants' have right to challenge imprisonment" and "Court rulings set limits on Bush administration."

The Seattle Post-Intelligencer reports that "Detainees can file challenges, high court says; Ruling on 'enemy combatants' deals a blow to Bush anti-terror policies." The Dallas Morning News reports that "Justices say detainees can't be held in limbo; Rulings affirm terror suspects' right to petition U.S. courts." The Hartford Courant reports that "Rulings On Detainees A Mixed Bag For Bush." The Washington Times reports that "Court orders due process for Guantanamo prisoners." The San Jose Mercury News reports that "Court rulings a blow to Bush on home front; War powers challenged adding to troubles." The Newark Star-Ledger reports that "Bush loses court test on detainees; U.S. justices rule prisoners must get hearings to state their cases." BBC News reports "Legal setback for war on terror" and "Lawyers hail Guantanamo ruling." And the PBS broadcast "NewsHour with Jim Lehrer" had segments entitled "Supreme Court Watch" and "Detainee Decisions."

In other news, The St. Louis Post-Dispatch reports that "Police technique to win confessions is struck down." David G. Savage of The LATimes reports that "Divided High Court Upholds Miranda Warnings; Police may not use confessions elicited before a suspect is advised of his rights." And Joan Biskupic of USA Today reports that "Justices invalidate 'question-first' tactic of police."

In news relating to the granting or denying of certiorari, Josh Richman of The Oakland Tribune reports that "Top court will take Oakland pot case; Medical marijuana issue to be ruled on by next summer, justices decide." The SFChronicle reports that "Court will hear medical pot appeal; U.S. seeking to overturn state law protecting marijuana patients." David G. Savage of The LATimes reports that "Medical Marijuana to Get Justices' Review." Claire Cooper, legal affairs writer for The Sacramento Bee, reports that "Key medical pot case to be heard." The SJMercury News reports that "High court to hear Oakland pot case; Justice Department appealed victory for two ailing women." The Contra Costa Times reports that "Cannabis case goes to U.S. high court." And The San Diego Union-Tribune reports that "Supreme Court justices to decide medical marijuana dispute."

The Dallas Morning News reports that "Supreme Court will hear Miller-El case again."

The Seattle Times reports that "Lawsuit could affect spy recruitment."

The SDUnion-Tribune reports that "Supreme Court agrees to look at investor rights in Dura lawsuit." And Financial Times reports that "Supreme Court ruling could hit fraud lawsuit claims."

The Miami Herald contains an article headlined "Theaters told: Ramp up access." The San Antonio Express-News reports that "Theaters' seating takes a hit from the Supreme Court." And The Orlando Sentinel reports that "Battle over seating may be settled; Theaters, advocates for the disabled may deal after ruling."

In the day's final news item, The Rochester Democrat and Chronicle reports that "Mateo saved from death penalty."

Finally, in commentary, The NYTimes contains an editorial entitled "Reaffirming the Rule of Law"; an op-ed by Anthony Lewis entitled "The Court v. Bush"; and an op-ed by Law Professors Kate Stith and William Stuntz entitled "Sense and Sentencing." The Washington Post contains an editorial entitled "Supreme Rebuke." The LA Times contains an editorial entitled "It's Called Democracy" and an op-ed by Law Professor Jonathan Turley entitled "A Near Miss for Key Rights." The Boston Globe contains an editorial entitled "The rights of detainees." The Wall Street Journal contains an editorial entitled "Terror and the Court: Despite mixed rulings, a victory for the executive." At The New Republic Online, Yonatan Lupu has an essay entitled "Narrowed Down." And at National Review Online, Matthew J. Franck has an essay entitled "Harmful Rulings: Enemy combatants and an irresponsible Court," while Robert Alt writing from Baghdad, Iraq has an essay entitled "Dangerous Decision: The Supreme Court has rewritten a well-established statute."
Posted at 20:57 by Howard Bashman



"Taking It to the Trenches: What the Supreme Court's terrorism decisions will mean for the war effort." Phillip Carter, whose blog you can access here, today has this essay online at Slate.
Posted at 19:33 by Howard Bashman



In news from Denver: Today's edition of The Denver Post contains articles headlined "State high court nullifies vouchers" and "High court urged to lift order on Bryant-case transcript."

And today's edition of The Rocky Mountain News contains articles headlined "Voucher program quashed; In 4-3 ruling, high court says plan diverts control from local school boards"; "Caps on damages upheld; State Supreme Court limits payments in botched delivery case"; and "Media appeal judge's order; Lawyer challenges ban on publishing Kobe transcript."
Posted at 19:16 by Howard Bashman



On this evening's broadcast of NPR's "All Things Considered": The broadcast contained segments entitled "Court Protects Web Porn, Sends Case Back for Review" (featuring Nina Totenberg); "U.S.-Born Hamdi to Challenge Detention"; "Details of Combatants' Challenges to Be Determined"; and "California Court Broadens Sex-Crime Registry" (Real Player required).
Posted at 19:00 by Howard Bashman



"Justices Leave Online Porn Case Unresolved": Charles Lane of The Washington Post provides this news update.
Posted at 18:58 by Howard Bashman



"DA will retry gang-rape case; The lead attorney for the defense team says the prosecutor's decision is 'based off emotion and based off politics'": The Orange County Register provides this news update.
Posted at 18:54 by Howard Bashman



The Salt Lake Tribune opposes confirmation of D.C. Circuit nominee Thomas B. Griffith: This editorial appeared in this past Sunday's newspaper.
Posted at 17:58 by Howard Bashman



In Wednesday's issue of The Christian Science Monitor: Warren Richey will have articles headlined "Court upholds objections to law regulating Internet porn; The 5-to-4 decision is a victory for free-speech advocates and a setback for those seeking to protect kids" and "Ruling makes it harder for foreigners to sue in US courts; Court overturns a ruling for a Mexican doctor, saying a 1789 law does not grant automatically right to sue."
Posted at 17:54 by Howard Bashman



"No Retirements As Supreme Court Ends Term": The Associated Press provides this report.
Posted at 16:46 by Howard Bashman



Available online from National Public Radio: Today's broadcast of "Day to Day" contained a segment entitled "Slate's Jurisprudence: High Court Blocks Web Porn Law" (featuring Dahlia Lithwick).

And today's broadcast of "Morning Edition" contained segments entitled "Ruling on Detainees Curbs Presidential War Powers" (featuring Nina Totenberg) and "Religious Initiatives Make Workplace Hostile for Some."
Posted at 15:33 by Howard Bashman



"U.S. Military Tribunal to Try 3 Suspects": The Associated Press provides this report from Guantanamo Bay, Cuba.
Posted at 14:27 by Howard Bashman



Unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit affirms federal trial court's ruling that refused to stop same-sex marriages in Massachusetts: You can access today's ruling at this link. Update: The AP reports here that "Federal appeals court denies attempt to block same-sex weddings."
Posted at 14:17 by Howard Bashman



"Justices Strike Down Online Porn Law; Supreme Court sends case back to lower court where government must prove other ways to protect children won't work": David G. Savage of The Los Angeles Times provides this news update.
Posted at 14:15 by Howard Bashman



"Bench Warrantless: The left likes to compare George W. Bush to Hitler and Mussolini, but is there a lesson to be learned from Il Duce's rise?" Joel Engel has this essay online at The Weekly Standard.
Posted at 12:46 by Howard Bashman



Abortion rights advocates announce they will not seek U.S. Supreme Court review of decision upholding Ohio's law limiting so-called "partial birth" abortions: The Associated Press provides this report.
Posted at 12:30 by Howard Bashman



Sink your teeth into the latest "Food Chain Barbie" ruling: Yesterday's issue of The New York Times reported that "Judge Says Artist Can Make Fun of Barbie." And today The Associated Press reports that "Mattel Told to Pay $1.8M in Barbie Suit." I have just posted online at this link last week's ruling of the U.S. District Court for the Central District of California in this case. Back in late December 2003, the U.S. Court of Appeals for the Ninth Circuit issued this ruling in the case, which I first reported on in a post titled "Ninth Circuit rebuffs Mattel's challenge to artist's photographs depicting nude Barbie about to be attacked by vintage household appliances."
Posted at 11:48 by Howard Bashman



U.S. Court of Appeals for the Sixth Circuit rules that trademark dispute falls outside the zone of confusion: Today's decision, which rejects AutoZone's effort to enjoin Tandy Corporation and Radio Shack from using the mark "PowerZone" to promote the sale of various power-related items such as such as batteries and extension cords, can be accessed here.
Posted at 11:15 by Howard Bashman



"Bush Must Regroup After Combatant Ruling": The AP's Anne Gearan provides this report.
Posted at 10:11 by Howard Bashman



Today's U.S. Supreme Court opinions: As anticipated, today the Supreme Court of the United States issued decisions in the two argued cases that had remained undecided this Term.

1. Justice David H. Souter delivered the opinion in Sosa v. Alvarez-Machain, No. 03-339, and the judgment under review was reversed.

2. Justice Anthony M. Kennedy delivered the opinion in Ashcroft v. American Civil Liberties Union, No. 03-218, and the judgment under review was affirmed and the case remanded.

In early news coverage of today's rulings, Anne Gearan of The Associated Press reports that "High Court Upholds Block of Web Porn Law." And Gina Holland reports that "Supreme Court Rejects Human Rights Suit."

James Vicini of Reuters, meanwhile, provides reports headlined "Supreme Court Bars Internet Porn Law Enforcement" and "Court: Abducted Mexican Doctor Can't Sue U.S."
Posted at 10:00 by Howard Bashman



"Top court greenlights Olympics bomb suits": The Atlanta Journal-Constitution today contains an article that begins, "Atlanta's 1996 Olympics organizers can be sued by victims of the Centennial Olympic Park bombing, the Georgia Supreme Court ruled Monday." You can access yesterday's ruling of the Supreme Court of Georgia at this link.
Posted at 09:51 by Howard Bashman



On the agenda: At 10 a.m. today, the Supreme Court of the United States will issue decisions on the final two argued cases remaining to be decided this Term. And then maybe one or more of the Justices will announce their retirement from the Court. Stay tuned for complete coverage.
Posted at 08:02 by Howard Bashman



Ninth Circuit Judge Alex Kozinski nominates self as contestant in "Judicial Hottie" contest: This brand new post at the blog "Underneath Their Robes" purports to reprint an email actually received from Judge Kozinski. I too have had the pleasure of receiving emails from Judge Kozinski in the past, and this particular email is either the real thing or a quite elaborate hoax. Update: The author of "Underneath Their Robes" has established to my satisfaction that the email in question was indeed from Judge Kozinski.
Posted at 07:30 by Howard Bashman



"A crossroads for cross: A new idea for Mt. Soledad -- leave decision to a new buyer." The San Diego Union-Tribune contains this article today.
Posted at 07:14 by Howard Bashman



"Ruling Widens Sex Offender List; Possessing child porn may require registering for life, court says in reversing 1983 decision": This article appears today in The Los Angeles Times. And Bob Egelko of The San Francisco Chronicle reports today that "High court rules sex crime listing not punishment; Lifetime registration protects public, state justices decide."
Posted at 07:07 by Howard Bashman



"With fanfare, Van Antwerpen joins federal Court of Appeals; He is first from Lehigh Valley to take a seat on 3rd Circuit bench": The Allentown Morning Call contains this article today. And yesterday's issue of that newspaper contained an editorial entitled "Justice and a happy ending in installation of Judge Van Antwerpen." Finally, The Express-Times of Easton, Pennsylvania reports today that "Local judge welcomed to new bench; Easton's Franklin S. Van Antwerpen sworn in as U.S. circuit judge."
Posted at 06:44 by Howard Bashman



"Gang-Rape Case Ends in Mistrial; Jurors can't agree on whether three youths, including the son of a top Orange County sheriff's official, assaulted a girl in 2002": This article appears today in The Los Angeles Times. And The Orange County Register today contains articles headlined "Juror: Video 'not convincing'; Panelist in gang-rape trial says much of prosecution's evidence was ambiguous" and "Emotional moments: Defendants express relief while accuser promises cooperation in possible retrial."
Posted at 06:40 by Howard Bashman



Monday, June 28, 2004
In other coverage of today's U.S. Supreme Court rulings: Stephen Henderson of Knight Ridder Newspapers reports that "Supreme Court rules against Bush policy, allows combatants day in court." Tom Curry, national affairs writer for MSNBC, has a news analysis entitled "Historic court rulings hold political fodder; Both sides get new venues to state cases to Congress, voters." And CBS News analyst Andrew Cohen has an essay entitled "Court Sends Bush War Power Setback."
Posted at 23:01 by Howard Bashman



In Tuesday's issue of The Washington Post: Tomorrow's newspaper will contain front page articles headlined "Executive Branch Reined In" and "Police Tactic to Sidestep Miranda Rights Rejected." And in other news, "Court to Review Spies' Right To Sue CIA Over Broken Vow."
Posted at 22:48 by Howard Bashman



"Jury deadlocks in videotaped rape trial": CNN.com reports here that "A judge declared a mistrial Monday in the trial of three teenagers charged with raping an unconscious 16-year-old girl, after the jury announced it was deadlocked on all 24 counts against the defendants."
Posted at 22:24 by Howard Bashman



Linda Greenhouse is reporting: In Tuesday's issue of The New York Times, she will have articles headlined "Justices Affirm Legal Rights of 'Enemy Combatants'"; "Tactic of Delayed Miranda Warning Is Barred"; and "Justices Will Hear Argument on Medical Marijuana Laws."
Posted at 22:16 by Howard Bashman



Should the relief that a sharply divided U.S. Supreme Court afforded in INS v. St. Cyr be limited only to aliens who pleaded guilty? Before today, every federal appellate court to have addressed the issue has apparently answered that question in the affirmative. But today, a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit, in an opinion by Senior Circuit Judge Edward R. Becker, reached the contrary conclusion and offered some criticism of the unbroken line of authority from those federal appellate courts that have previously considered the issue.
Posted at 21:09 by Howard Bashman



"Prosecutors Say Woman Stole Law Firm's ID": The Associated Press reports here on a woman who stole the identity of the law firm Fish & Neave.
Posted at 20:51 by Howard Bashman



"Old desk gets a front-row seat to more history": The Sacramento Bee today contains an article that begins, "Out of commission for years, a hulking slab of walnut and brass known as 'Earl Warren's desk' is finding its way back into the spotlight, thanks to Gov. Arnold Schwarzenegger."
Posted at 20:03 by Howard Bashman



Also in Tuesday's issue of The Christian Science Monitor: Tomorrow's newspaper will also contain articles headlined "Two Court rulings highlight a delicate balance on Miranda" and "'Gitmo' court ruling heartens Saudi families; The Supreme Court said Monday that 'Gitmo' prisoners can challenge detention."
Posted at 18:27 by Howard Bashman



Available online from National Public Radio: This evening's broadcast of "All Things Considered" included reports entitled "High Court: U.S. Must Allow Terror Detainees to Challenge Status" (featuring Nina Totenberg) and "Court Warns Police on Miranda Procedure."

And today's broadcast of "Talk of the Nation" contained a lengthy segment entitled "Supreme Court Decisions" featuring Los Angeles Times reporter David G. Savage and Law Professor John C. Yoo.
Posted at 18:11 by Howard Bashman



"Microsoft Settles Arizona Antitrust Suit": Reuters provides this report.
Posted at 17:54 by Howard Bashman



Think of how lengthy the Ten Commandments would have been if they included mention of all possible defenses to murder: The Associated Press reports here that "Georgia's parole board denied clemency Monday for a death row inmate who argued that the prosecutor improperly suggested at trial that the Ten Commandments do not recognize insanity as a defense for murder."
Posted at 17:45 by Howard Bashman



"Signature drive aims to keep cross on county seal": This article appears today in The Los Angeles Daily News.
Posted at 17:42 by Howard Bashman



"Coroner's verdict: Dr. Kirchner says police are too tight-lipped about crimes in which the public and media could help; Police think he says too much." Yesterday's issue of The Sunday News of Lancaster, Pennsylvania contained this article, which focuses on the death of federal prosecutor Jonathan Luna.
Posted at 17:36 by Howard Bashman



"Supreme Court to Hear Case on Medical Pot": David Kravets of The Associated Press provides this report.
Posted at 17:22 by Howard Bashman



"Terror detainees win right to sue; In two landmark cases, the court rules against President Bush, saying 'enemy combatants' should have access to US courts": Warren Richey will have this article in Tuesday's issue of The Christian Science Monitor.
Posted at 17:03 by Howard Bashman



A preview of Wednesday afternoon's oral argument before the U.S. Court of Appeals for the Third Circuit in the case challenging the constitutionality of the Solomon Amendment: Reinforcing what a pleasure it is to practice before the Third Circuit, this afternoon I received a call from that court's clerk's office advising that oral argument in FAIR v. Rumsfeld won't be getting underway this Wednesday afternoon until 1:15 p.m. at the earliest.

You can access most of the briefs filed in the appeal, along with the trial court's ruling in favor of the federal government, via this link. Arguing for the plaintiffs/appellants will be E. Joshua Rosenkranz. Arguing for the federal government will be Gregory G. Katsas. Arguing for amici in support of the plaintiffs/appellants will be Walter E. Dellinger, III and Paul M. Smith. Arguing for amici in support of the federal government will be yours truly. The amicus brief that I filed in the case can be accessed here.
Posted at 16:35 by Howard Bashman



"Justices: Detainees Can Have Court Hearings." The Los Angeles Times has recently posted online this news update from David G. Savage.
Posted at 16:30 by Howard Bashman



"Colo. Supreme Court rules school vouchers unconstitutional": The Associated Press provides this report on a 4-3 ruling that the Supreme Court of Colorado issued today.
Posted at 16:22 by Howard Bashman



U.S. Court of Appeals for the Fourth Circuit refuses to rehear en banc the South Carolina "Choose Life" license plate case over the dissenting votes of five judges: You can access today's order, which is accompanied by both a concurring and a dissenting opinion, at this link.

Back in March 2004, the original three-judge panel issued a decision consisting of three separate opinions that in combination affirmed a federal trial court's decision declaring unconstitutional the South Carolina statute authorizing the "Choose Life" plate. I first reported on that ruling the day it issued in a post you can access here.
Posted at 14:59 by Howard Bashman



"Slate's Jurisprudence: Court Rules on Enemy Combatants." Today's broadcast of NPR's "Day to Day" included this report featuring Dahlia Lithwick and Walter E. Dellinger, III (Real Player required).
Posted at 14:46 by Howard Bashman



Divided three-judge Seventh Circuit refuses to enjoin the City of Indianapolis from conducting body cavity searches of misdemeanants: You can access today's ruling of the U.S. Court of Appeals for the Seventh Circuit at this link. Circuit Judge Frank H. Easterbrook wrote the majority opinion, in which Circuit Judge Michael S. Kanne joined. Circuit Judge Ann Claire Williams dissented in an opinion you can access here.
Posted at 14:16 by Howard Bashman



Let the headline puns begin: Tune in tomorrow to see just how many newspapers publish the headline "High Court agrees to hear medical marijuana case."
Posted at 13:46 by Howard Bashman



The wire services report on today's developments from the U.S. Supreme Court: From The Associated Press, Anne Gearan reports that "Enemy Combatants Win Right to U.S. Courts" and "Court to Hear Former Communist Spies Case." Gina Holland reports that "Justices Warn Police on Coercion Tactic"; "Court to Review American Indian Tax Case"; "Court Dodges Fight Over Disabled Seating"; and "Court Won't Stop Minivan Air Bag Case." Finally, unsigned articles report that "Supreme Court to Hear Case on Medical Pot" and "High Court Takes Securities Fraud Case."

From Reuters, James Vicini reports that "U.S. high court deals blow to war on terror"; "Supreme Court to Decide Medical Marijuana Case"; "Court to Decide if Cold War Spies Can Sue CIA"; and "US court allows wheelchair rules for movie theaters." Meanwhile, a report from London, England is headlined "Families, Lawyers Take Heart from Guantanamo Ruling."
Posted at 13:34 by Howard Bashman



"We therefore conclude that mandatory sex offender registration, as provided by section 290, is not 'punishment' for purposes of either the Eighth Amendment or article I, section 17 of the California Constitution." So a unanimous Supreme Court of California has ruled today in a decision that you can access here. My earlier preview of this ruling can be found at this link.
Posted at 13:12 by Howard Bashman



"High Court: Enemy Combatants Can Challenge Detention." NPR's Nina Totenberg had this report (Real Player required) on this morning's broadcast of "Morning Edition."
Posted at 12:05 by Howard Bashman



Today's U.S. Supreme Court opinions and Order List: The Supreme Court of the United States today issued opinions in five argued cases, including all three argued cases involving the war on terror. The Court will issue more opinions tomorrow.

1. Justice Clarence Thomas announced the judgment of the Court in United States v. Patane, No. 02-1183, and the judgment under review was reversed and the case remanded.

2. Justice David H. Souter announced the judgment of the Court in Missouri v. Siebert, No. 02-1371, and the judgment under review was affirmed.

3. Justice Sandra Day O'Connor announced the judgment of the Court in Hamdi v. Rumsfeld, No. 03-6696, and the judgment under review was vacated and the case remanded.

4. Justice John Paul Stevens delivered the opinion of the Court in Rasul v. Bush, No. 03-334, and the judgment under review was reversed and the case remanded.

5. Chief Justice William H. Rehnquist delivered the opinion of the Court in Rumsfeld v. Padilla, No. 03-1027, and the judgment under review was reversed and the case remanded.

The Court also issued a per curiam summary reversal in Holland v. Jackson, No. 03-1200, by a vote of 5-4.

The two argued cases in which opinions remain to be issued, and presumably will be issued tomorrow, involve online pornography and the Alien Tort Claims Act.

Today's Order List can be accessed here. The Court granted review today in a total of eight cases and sought the views of the Solicitor General in two other cases.

In early press coverage of today's developments at the Court, Anne Gearan of The Associated Press reports that "Terror Detainees Win Right to U.S. Courts," while Gina Holland reports that "High Court Warns Police Against Tactic."

Gearan also reports that "Supreme Court to Hear Case on Medical Pot" and "Court to Hear Former Communist Spies Case."
Posted at 10:00 by Howard Bashman



"The handing down of Supreme Court decisions is an unusual ritual." So writes former Acting Solicitor General Walter E. Dellinger, III in this essay posted online this morning at Slate.
Posted at 09:11 by Howard Bashman



"A half-century of laying down the law; Coffey has stood by beliefs, ruffled feathers": This quite fascinating profile of Seventh Circuit Judge John L. Coffey appears today in The Milwaukee Journal Sentinel.
Posted at 09:02 by Howard Bashman



Does the requirement of registration as a sex offender constitute "punishment" for purposes of the cruel or unusual punishment provision of California's Constitution? The Supreme Court of California is scheduled to issue a decision that will resolve this question at 10 a.m. pacific time today. In March 2003, the U.S. Supreme Court by a vote of 6-3 rejected the argument that Alaska's sex offender registration act constituted punishment. You can access my summary of that decision, which reversed a ruling to the contrary by Ninth Circuit Judge Stephen Reinhardt, at this link (third item).
Posted at 08:51 by Howard Bashman



On the agenda: At 10 a.m. today, the Supreme Court of the United States will issue opinions in argued cases and an Order List. The remaining seven argued cases in which opinions will issue this week are listed here. Stay tuned for complete coverage.

As a reminder, if unusually high amounts of traffic cause this site to crash (which thankfully didn't happen last Thursday, although it did happen on two preceding opinion issuance dates), I will post updates in the interim to this blog's back-up location, which can be accessed at:
http://howappealing.blogspot.com/
Please make a note of that address, because if you do need to use it, you won't be able to access it here.
Posted at 06:52 by Howard Bashman



"Rebuking Barbie's Manufacturer, Judge Says Artist Can Make Fun of Dolls": This article appears today in The New York Times.
Posted at 06:50 by Howard Bashman



And the survey says -- support of First Amendment freedoms back to pre-9/11 levels: The First Amendment Center in collaboration with American Journalism Review magazine has issued the results of its State of the First Amendment survey for 2004. Available online are a news release, an analysis of the results, and the results themselves.
Posted at 06:31 by Howard Bashman



Sunday, June 27, 2004
In Sunday's newspapers: In The New York Times, Adam Liptak has an article headlined "Torture and Legal Ethics: How Far Can a Government Lawyer Go?" A related article is headlined "Defining Torture: Russian Roulette, Yes. Mind-Altering Drugs, Maybe." And in business news, "Crimes of Others Wrecked Enron, Ex-Chief Says" and "Attention Wal-Mart Plaintiffs: Hurdles Ahead."

The Washington Post reports that "CIA Puts Harsh Tactics On Hold; Memo on Methods Of Interrogation Had Wide Review." And an editorial is entitled "Sentencing Bombshell."

The Washington Times reports that "Fight goes on to restore Texas plaques." In regional news, "Gay-rights advocates march on delegate's home." Jennifer Marshall has an op-ed entitled "More than a 'lifestyle choice.'" And an editorial is entitled "A forgotten terror victim."
Posted at 23:51 by Howard Bashman



Commentators commentate: On Friday, The New Republic Online published an essay by Dana Mulhauser entitled "Half Court." Reason published an essay by Timothy Lynch entitled "Cooperate, Or Else! Complicating your right to remain silent." Shannen W. Coffin writing at National Review Online had an essay Friday entitled "Victory for the Executive: Bush and Cheney have recovered lost ground," while his preview of that ruling on Thursday was entitled "Energy and the Executive: Bush and Cheney have rightly stood firm in the ongoing energy controversy." Online at The Nation, Bruce Shapiro has an essay entitled "Rehnquist, Cambodia & Abu Ghraib," while John Nichols writes of a "Big Blow to Big Media." Finally, on Friday Andrew C. McCarthy had an essay entitled "A Manufactured Scandal: The Times and memos" at National Review Online.
Posted at 23:37 by Howard Bashman



"Court case on juvenile killers may echo here": This article appears today in The Richmond Times-Dispatch, along with a related article headlined "Time passes, not the pain." Meanwhile, in somewhat related news, The Orlando Sentinel today reports that "Guilty pleas from youths raise alarm."
Posted at 23:31 by Howard Bashman



"Making Torture Legal": Anthony Lewis will have this article in the July 15, 2004 issue of The New York Review of Books.
Posted at 22:42 by Howard Bashman



In the July 5, 2004 issue of Time magazine: The issue contains "10 Questions For Kenneth Starr." In business news, "Wal-Mart's Gender Gap: What a landmark lawsuit aims to prove about how the No. 1 retailer pays its female workers." And a newsbrief is headlined "A Gay-Marriage Dance."
Posted at 22:33 by Howard Bashman



"Peterson's prosecutors watch trial go downhill; Despite bad week, it's too early to panic, experts say": This article appears today in The San Francisco Chronicle.
Posted at 22:27 by Howard Bashman



In Monday's issue of The Christian Science Monitor: Warren Richey will report that "Supreme Court throws sentencing guidelines into doubt; A Washington State case prompts other states, as well as federal officials, to reexamine their own sentencing systems." A related editorial is entitled "Juries Get Their Day in Court." And an article reports that "Key general defends the 'Gitmo' way; In an interview, General Miller defends his command and addresses abuses at Abu Ghraib."
Posted at 20:16 by Howard Bashman



The efforts of counsel for the death row inmate in Beard v. Banks to secure Justice Anthony M. Kennedy's vote did not succeed: Today's issue of The Times Leader of Wilkes-Barre, Pennsylvania contains this article reporting on a strategy that proved unsuccessful in a case in which Justice Kennedy's vote represented the difference between victory and defeat.
Posted at 17:53 by Howard Bashman



In news from Alabama: The Decatur Daily today contains an article headlined "Where the judge is coming from: Drayton Nabers, state's new chief justice, meets life's challenges with humor." And The Birmingham News today reports that "Nabers promises fairness on bench" and "Man fired over lapel pin garners support."
Posted at 17:49 by Howard Bashman



"Before Senate, Kerry shone in courtroom": This article appears today in The Atlanta Journal-Constitution. Of course, in its May 10, 2004 issue, The New Yorker published an article by Jeffrey Toobin headlined "Kerry's trials: What the candidate learned as a lawyer."
Posted at 17:44 by Howard Bashman



"A Nominee With No License": The New York Times today contains an editorial that begins:
Opposition to President Bush's judicial nominees has often turned on their legal philosophies, but that is not true of Thomas Griffith. This nominee to the United States Court of Appeals for the District of Columbia Circuit faces a more straightforward problem -- he practiced law in two separate jurisdictions without the required license. The Senate should not confirm him, and it should regard his situation as a reminder of the need to be vigilant in vetting the administration's remaining nominees.
You can access the complete editorial at this link.
Posted at 11:50 by Howard Bashman



In same-sex marriage-related news: The Courier-Journal of Louisville, Kentucky today contains articles headlined "Kentuckian's sex change leads wife to seek annulment; Property fight could involve millions of dollars" and "Court rulings on marriage and gender switch vary among states." From Virginia, The Roanoke Times reports today that "Gays fear new state law banning civil unions could go much further; Some people say the law could be used to invalidate wills, joint bank accounts, insurance benefits, business agreements and even medical directives." And The Oklahoman today contains an article headlined "Marriage could force high court decision" that begins, "Two women who want to be viewed as married by the Cherokee Nation could force the debate over same-sex unions before America's highest court, challenging state and federal bans, a supporter says."
Posted at 09:30 by Howard Bashman



"Judge parlays patience, work into new post": The Express-Times of Easton, Pennsylvania today contains an article that begins, "It took years of work and some good fortune, but U.S. District Judge Franklin S. Van Antwerpen's patience will be rewarded Monday. That's when the 62-year-old Palmer Township man will be sworn in as the newest judge on the U.S. Third Circuit Court of Appeals."
Posted at 09:21 by Howard Bashman



"Supreme Court May Take Up Pot Case": David G. Savage has this article today in The Los Angeles Times.
Posted at 09:16 by Howard Bashman



"Partisan spat leaves 6th Circuit Court short; Dems Levin, Stabenow oppose nomination of Republican picks to fill 4 judge vacancies": This article appears today in The Detroit News.
Posted at 09:00 by Howard Bashman



Saturday, June 26, 2004
In Saturday's newspapers: The New York Times reports that "Court Roster Will Decide Future of Death Penalty" and "Ruling on Death Penalty Clouds Existing Sentences."

The Washington Post reports that "More GIs At Prison May Face Charges; Abu Ghraib Investigators Examine Intelligence Unit." And in other news, "Jury to Begin Deliberations In Rigas Trial; Ex-Adelphia Leaders Accused of Fraud."

The Los Angeles Times reports that "In Media Decision, the Little Guys Lost; A ruling that blocks or delays the FCC's relaxed ownership rules hurts bids by smaller firms to battle with giant rivals." An article reports that "Wal-Mart Lawsuit Could Pave Way for Other Massive Job-Bias Claims; More class actions against big firms may have their day in court; But obstacles abound." In celebrity justice-related news, "Bryant Trial Date Is Set; Fight Looms on Transcripts"; "Judge Keeps Records Sealed in Jackson Molestation Case; Jurist rebukes a lawyer who complained of 'a virtually impenetrable veil of secrecy'; Privacy issues are likely to resurface as trial nears"; and "Judge Wants Leak Inquiry Report; Doping case prosecutors are asked to finish investigation into the source of the sealed testimony that was published." And letters to the editor appear under the headings "Patients' Rights and HMO Ruling" and "God and National Unity."

Finally, The Washington Times contains an editorial entitled "Stifling freedom."
Posted at 23:44 by Howard Bashman



"State official to issue opinion on judges' speech; Minnesota case: Court ruled judicial candidates can discuss legal issues." This article appears today in The Reno Gazette-Journal.
Posted at 23:43 by Howard Bashman



"Attorneys spar in judge probe": The Biloxi Sun Herald today contains an article that begins, "With only weeks before trial, defendants in a judicial bribery case say prosecutors still haven't told them exactly what they allegedly did wrong and questioned whether the federal government has jurisdiction over the case." And The Clarion-Ledger reports today that "Explanations ordered in bribery case; Motion to dismiss Minor, Diaz charges under study."
Posted at 23:30 by Howard Bashman



"Phone-recording case goes to state's high court": In today's edition of The San Francisco Chronicle, Bob Egelko has an article that begins, "The state Supreme Court will decide whether a Californian's interstate phone conversation can be secretly tape-recorded in a state that allows it."
Posted at 23:24 by Howard Bashman



"Moore Responds to Nabers Appointment": NBC affiliate WAFF-48 in Huntsville, Alabama offers this quite short but still rather interesting report.
Posted at 23:20 by Howard Bashman



"Cheney praises justices' ruling, owns up to cursing": This article appears today in The Chicago Tribune.
Posted at 23:11 by Howard Bashman



Newdow to file newlawsuit challenging Pledge of Allegiance: Reuters has reported this evening that "Atheist Plans New Lawsuit Over Phrase 'Under God.'" And The Sacramento Bee today reports that "Pledge-case lawyer seeks plaintiffs for new lawsuit."
Posted at 23:05 by Howard Bashman



"Article III Groupie" has posted new content at the "Underneath Their Robes" blog: The latest post is titled "Bench-Slapped," and it focuses on a Ninth Circuit ruling that I previously wrote about here and here.
Posted at 23:02 by Howard Bashman



After all, which U.S. Supreme Court Justice could say "no" to an end-of-Term windmill-related getaway? WANE-TV of Fort Wayne, Indiana today reports that "Supreme Court Justice Sandra Day O'Connor Visits Kendallville." The article attempts to answer the question "what's the connection between O'Connor and windmills?" You can learn more about the Mid-America Windmill Museum, which is holding its annual Windmill Festival this weekend, in this article published recently in The South Bend Tribune.
Posted at 22:45 by Howard Bashman



"Names surface for Benton's seat on Missouri Supreme Court": The St. Louis Post-Dispatch contains an article reporting that "Duane Benton's confirmation for a federal judgeship is expected to set off a hot competition for the spot he'll vacate on the Missouri Supreme Court."
Posted at 21:03 by Howard Bashman



"Sentencing Decision's Reach Is Far and Wide": Adam Liptak will have this article in Sunday's issue of The New York Times.
Posted at 20:48 by Howard Bashman



"They blindsided her with Science: Gay teacher stripped of her church affiliation." Yesterday's issue of The Boston Herald contained an article that begins, "The spiritual teacher stripped of her Christian Science affiliation after refusing to repent for marrying her lesbian partner of 10 years is now considering suing." And The News-Press on Thursday reported that "Lesbian, church split; Cape woman won't 'repent' marriage." Special thanks to The Boston Herald for its reference to one of my favorite Thomas Dolby songs (lyrics here; video clip here).
Posted at 15:56 by Howard Bashman



On this morning's broadcast of NPR's "Weekend Edition - Saturday": The broadcast contained segments entitled "Solicitor General Olson Stepping Down" (featuring Nina Totenberg) and "The Gay Marriage Debate."
Posted at 15:05 by Howard Bashman



"Thousands of Cases in Doubt After Decision on Sentencing; Lawyers nationwide are unsure how to proceed now that the Supreme Court has thrown out established punishment guidelines": David G. Savage has this article today in The Los Angeles Times.

In related coverage, The Philadelphia Inquirer reports today that "Ruling delays sentencing for federal prisoners in Pa.; Action was postponed as prosecutors weigh the Supreme Court decision on sentencing guidelines." The Allentown Morning Call reports that "Ruling delays sentencings in Philly federal court; Justices say juries, not judges, must apply guidelines on severity of sentences." And The Miami Herald today reports that "Challenging long Florida sentences might be long shot; Despite the Supreme Court's ruling that judges can't unilaterally increase jail time, several high-profile South Florida convicts looking to reduce extra-long sentences may be thwarted by a 1998 state law."

Meanwhile, The Boston Globe today, in an article headlined "Sentencing process flawed, judge says; Opinion blasts US prosecutors," finally gets around to reporting on this blockbuster ruling that Massachusetts' Chief U.S. District Judge released on Monday of this week.
Posted at 14:55 by Howard Bashman



In news from Colorado: The Rocky Mountain News reports today that "Bryant trial is Aug. 27; Opening statements could be on Sept. 7 after jury selection" and "Bryant case e-mail spurs legal appeal; Wrong click sent closed-door hearing transcript to media." And The Denver Post reports today that "Bryant's trial set to begin Aug. 27; 1,000 summonses for jurors to go out" and reported yesterday that "Error releases Kobe transcripts; Judge then forbids publication of rape-shield testimony."
Posted at 14:33 by Howard Bashman



"Both Sides of Seal Debate to Fight On": Yesterday's edition of The Jewish Journal of Greater Los Angeles contained this article. And Thursday's issue of The Press-Enterprise reported from Redlands, California that "Battle urged to save cross; A Christian group said it has lawyers and a strategy, and is raising money for the fight."
Posted at 14:22 by Howard Bashman



"Death Row Volunteer Problematic for Court": The Associated Press provides this report on a case argued in the U.S. Court of Appeals for the Third Circuit this past week.
Posted at 14:15 by Howard Bashman



"Aides Say Memo Backed Coercion for Qaeda Cases": This article will appear in Sunday's edition of The New York Times.
Posted at 14:05 by Howard Bashman



"With Sykes leaving, who will fill seat? Many expect Doyle to name a replacement from Milwaukee." The Milwaukee Journal Sentinel contains this article today.
Posted at 12:14 by Howard Bashman



What would Vice President Cheney say? The Ann Arbor News today contains an article headlined "Booted for 'bad' language, banned patron sues library; Fredric Maxwell seeks $115,000 and apology in federal lawsuit."

Just like at The Washington Post, here at "How Appealing" the f-word is never independently invoked, although it's occasionally linked to (see here and here for examples) and, in very rare instances, quoted.
Posted at 12:04 by Howard Bashman



The Seattle Times is reporting: Today's issue reports that "Lawyers try to sort out effects of court ruling on sentencing"; "8-year term levied in 1st prosecution under new child-sex law"; and "Local professor catching the eye of media -- and of Bill O'Reilly."
Posted at 09:00 by Howard Bashman



Learn more about the final seven argued cases in which the U.S. Supreme Court will announce rulings next week: A list of those cases, complete with links to more information about each, is available here. The Court is next scheduled to announce opinions in argued cases at 10 a.m. on Monday, and in theory the Court could issue all seven remaining decisions at that time.
Posted at 08:44 by Howard Bashman



In news from Guam: The Pacific Daily News today contains an article headlined "AG asks lawmakers to help settle rent dispute" that begins, "Attorney General Douglas Moylan is asking the Legislature to assist in the dispute over the eviction of his office from the Guam Judicial Center." And an editorial published today is entitled "Governor, senators need to do what they can to prevent eviction of the AG."
Posted at 08:38 by Howard Bashman



"Detention Dilemma: Two Years After 9/11, Guantanamo Prisoners Remain in Legal Limbo." ABCNEWS.com provides this report.
Posted at 00:55 by Howard Bashman



Wal-Mart executives discuss how to keep legal fees low in defending against sex discrimination class action: This editorial cartoon published in Thursday's issue of Newsday is worth a look.
Posted at 00:28 by Howard Bashman



Friday, June 25, 2004
"Court ready to rule on Net porn": Declan McCullagh of c|net News.Com provides this report.
Posted at 23:40 by Howard Bashman



"Judge in Michael Jackson Case Rebukes Media Lawyer": Reuters provides this report. And not just any old media lawyer, mind you.
Posted at 23:36 by Howard Bashman



In today's and yesterday's newspapers: The New York Times today reports that "Solicitor General Olson Says He Will Retire in July." In regional news, "A 4-3 Ruling Effectively Halts Death Penalty in New York"; "A Decision That Enrages a Murder Victim's Town"; "Legislature Is Given Task of Correcting Law's Flaw"; and "Court Papers Show Lawyer Agreed Not to Help Terrorist." Adam Liptak reports that "Legal Scholars Criticize Memos on Torture." In business news, "Court Orders Rethinking of Rules Allowing Large Media to Expand"; "Ruling on Media Only Irritates Big Owners"; "Stewart Should Be Denied New Trial, Prosecutors Say"; "At Last, Jurors Are About to Consider Adelphia Case"; and "Microsoft to Soon Seek Stay of Ruling by Europeans." An article reports that "Bush Interviewed in Leak of a C.I.A. Officer's Name." Editorials are entitled "A Loss for Open Government" and "Women and Wal-Mart." Columnist Bob Herbert has an op-ed entitled "Cooking Up a Crisis." And letters to the editor appear under the heading "Torture: Condemned or Condoned?"

In Thursday's edition of The NYTimes, Linda Greenhouse reported that "High Court Justice Supports Bar Plan to Ease Sentencing." In other news, "A Lawyer's Co-Defendant Aided in a Call to Kill Jews." An article reports that "Peterson Trial Judge Removes One Juror, Cautions Others." And in other news, "U.S. Drops Plan to Exempt G.I.'s From U.N. Court."

The Washington Post reports today that "Solicitor General Theodore Olson to Step Down." Charles Lane reports that "Death Sentences Will Stand; Supreme Court Says Ruling Does Not Apply Retroactively." In business news, "Court Rejects Rules On Media Ownership; Appeals Panel Deals FCC Harsh Defeat" and "Keep Stewart Verdicts, Prosecution Argues; Alleged Witness Perjury Called Irrelevant." An article reports that "MP Captain Tells of Efforts to Hide Details of Detainee's Death." In other news, "Bush Interviewed About CIA Leak; President Not Under Oath in Discussing Release of Covert Officer's Name." And an editorial is entitled "Unstable Rules."

Thursday's edition of The Washington Post, in news relating to the war on terror, reported that "U.S. Struggled Over How Far to Push Tactics; Documents Show Back-and-Forth on Interrogation Policy"; "Lawyer for State Dept. Disputed Detainee Memo; Military Legal Advisers Also Questioned Tactics"; "Senate Rejects Request for Abuse Documents"; and "U.S. Abandons Plan for Court Exemption." In local news, "Starr Endorses Legislation to Give District a Voting Seat in the House." And an article reports that "Wal-Mart Suit May Force Wider Look at Pay Gap Between Sexes."

The Wall Street Journal today contains an editorial entitled "Tortured Arguments: How to interpret those Bush interrogation documents."

The Washington Times reports today that "Justices reject decision on Cheney panel." In other news, "GOP eyes taking marriage from courts." And an editorial is entitled "In support of executive privilege."

Thursday's edition of The Washington Times reported that "Test vote likely on gay 'marriage.'" In other news, "U.S. forgoes world court immunity." And an editorial is entitled "Defending marriage."

In USA Today, Joan Biskupic reports today that "Olson says he'll resign in July"; "Doubt cast on prison terms; High court: Judges can't boost sentences"; and "Justices reiterate importance of juries in sentencing phase." In related coverage, "Court tosses back Cheney case; Details on energy task force can stay secret for now." An article reports that "Charges considered in death of Iraqi general; Army probes interrogation that ended with suffocation." In business news, "Women say Wal-Mart execs knew of sex bias; Expert says allegations 'typically hard to prove'" and "Prosecutors wrap up $3.2B Adelphia case; Defense attacks witnesses' credibility." And in other news, "Bush questioned about CIA leak; Officer's name was revealed."

Thursday's edition of USA Today contained an editorial entitled "Extinguish flag-burning bill." And Senator Orrin G. Hatch (R-UT) had an op-ed in response entitled "Desecration is not 'speech.'"

The Boston Globe reports today that "High court won't rule on Cheney records case." In other news, "Prosecutors interview Bush in leak probe; President, lawyer join 70-minute Oval Office session." An article reports that "Romney eyes cuts to courts budget; Governor wants judiciary streamlined." And columnist H.D.S. Greenway has an op-ed entitled "Who's to blame for the torture?"

Thursday's issue of The Boston Globe, in news relating to the war on terror, contained articles headlined "Policy rift seen on detainees" and "Inside look at Abu Ghraib: Contractor's diary cites CIA conflict, praise from Rice." And an editorial is entitled "DNA justice."

The Los Angeles Times reports today that "Solicitor General Resigning." David G. Savage reports that "Court Lets Cheney Avoid Disclosure" and "Ruling Could Change Sentencing Nationwide." Henry Weinstein reports that "Justices Say Death Row Inmate With Low IQ Deserves Appeal." Claire Luna reports that "New Law Helps Protect Privacy in Rape Cases; The legislation requires that motions to delve into an accuser's sexual history be filed under seal unless they are ruled admissible" and "Gang-Rape Jury Signals Doubt." In business news, "FCC Ordered to Rewrite Rules Easing TV Station Ownership." In news relating to the war on terror, "Prison Commander Testifies in Scandal; Military police captain says intelligence officers were present at death of Abu Ghraib inmate" and "Prosecutors Question Bush on Leak of Agent's Name." And Allie Thomas has an op-ed entitled "Criminals' Families Also Do Hard Time."

In Thursday's edition of The LATimes, Henry Weinstein reported that "Justice System Is 'Broken,' Lawyers Say; With soaring prison populations, especially of minorities, the U.S. must seek alternatives, bar association urges." In other news, "Wal-Mart Plaintiff Still Loves the Store; Worker who is spearheading a landmark gender bias suit says she just wants a chance to advance." An article reports that "Disabled Find Bias Issue Unsettled; The Supreme Court ruled they have a right to be a part of the larger community, but gains at the state level have been uneven, officials say." In regional news, "Jury Gets Teens' Gang-Rape Trial; Defendants' lawyers say key evidence may have been altered and call the alleged victim a liar; Prosecutor contends that is a diversion." An article reports that "U.S. Ends Bid to Exempt Troops From Global Court." And Michael Hiltzik's "Golden State" column is entitled "PeopleSoft Lawyer's Weblog Is Fresh Twist in Spin Wars."
Posted at 23:30 by Howard Bashman



In news from Arizona: The Arizona Daily Star reports today that "High court cuts off new sentencings for 86 on Arizona death row." And The Arizona Daily Sun reports today that "Supreme Court refuses to overturn death penalties."
Posted at 22:45 by Howard Bashman



It wasn't the result Pennsylvania death row inmate George Banks had been banking on: The Philadelphia Inquirer reports today that "Supreme Court denies death appeal; The 1983 Pennsylvania case was appealed under a 1988 precedent; The U.S. justices said it can't apply." The Times Leader contains articles headlined "Banks put back on death row" and "Flora: Case is far from over." And The Citizens' Voice reports that "Banks loses appeal" and "DA hails court ruling on Banks."
Posted at 22:38 by Howard Bashman



"FCC told to rethink rules on ownership; A U.S. appeals court ordered the agency to reconsider the impact of a sole owner of TV and radio stations in a market": This article appears today in The Philadelphia Inquirer.
Posted at 22:22 by Howard Bashman



Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained a segment entitled "U.S. Officer Implicated in Abu Ghraib Prison Death."

And today's broadcast of "Morning Edition" contained segments entitled "Justices Back Role of Juries in Establishing Sentences" (featuring Nina Totenberg); "GOP Hurrying Gay Marriage Ban to Senate Floor"; "Candidates on the Issues: Gay Marriage"; and "Court Rejects Eased FCC Rules on Media Ownership."
Posted at 22:15 by Howard Bashman



"Death row inmates lose Supreme Court appeals": Bob Egelko has this article in today's issue of The San Francisco Chronicle.
Posted at 22:11 by Howard Bashman



"Woman decides not to fight sex law; A Newport News woman said she didn't challenge the constitutionality of the crimes against nature law because she didn't want to risk going to jail": This article appears today in The Daily Press of Hampton Roads, Virginia.
Posted at 20:59 by Howard Bashman



No need to speculate about who wrote that Per Curiam opinion: Today the U.S. Court of Appeals for the Eleventh Circuit issued a decision in which the lead opinion identifies itself as Per Curiam, thereby failing to reveal which of the three judges on the panel wrote that opinion. Senior Eleventh Circuit Judge Peter T. Fay apparently didn't care to keep the identity of the lead opinion's author a secret, as he issued a concurring opinion that begins, "I enthusiastically join in the opinion of Judge Anderson."
Posted at 17:11 by Howard Bashman



"Lesbians Seek Country Club Privileges": The Associated Press provides this report, which mentions a case now pending on the merits before the Supreme Court of California.
Posted at 15:23 by Howard Bashman



Is a human mannequin head copyrightable under the Copyright Act of 1976? Seventh Circuit Judge Frank H. Easterbrook, sitting by designation in the U.S. District Court for the Northern District of Illinois, answered "no." Today a divided three-judge Seventh Circuit panel disagreed and reversed Judge Easterbrook's ruling in a decision that you can access here. The expressions found on mannequin heads located within the Seventh Circuit in the aftermath of today's ruling suggest that they are generally pleased with the result.
Posted at 15:03 by Howard Bashman



Another instance of "Only in the Ninth Circuit": If a federal appellate court is evenly divided on an issue, the judgment of the district court is affirmed on an evenly divided vote. Except in the Ninth Circuit, of course, thanks to its unique mini-en banc system. A total of six Ninth Circuit judges voted to deny a convicted perjurer's habeas corpus petition and thereby affirm a district court's ruling, while another six Ninth Circuit judges voted to grant the petition. The judges voting to grant prevailed because those votes occurred on rehearing en banc before an eleven-judge panel. You can access today's 6-5 en banc ruling at this link, and the earlier 2-1 decision (with the dissent provided by a federal district judge sitting by designation) against the habeas petitioner at this link.
Posted at 13:34 by Howard Bashman



"Judiciary panel delays vote on Allen; Sens. Mikulski, Sarbanes renew fight for Md. seat": This article appears today in The Baltimore Sun.
Posted at 13:23 by Howard Bashman



In all, the U.S. Senate yesterday confirmed three federal appellate judges: In addition to confirming Diane S. Sykes to serve on the U.S. Court of Appeals for the Seventh Circuit on a recorded vote, yesterday the Senate also confirmed Peter W. Hall to the Second Circuit and William Duane Benton to the Eighth Circuit, both on voice votes. You can see the Congressional Record entry here. In news coverage, The Rutland Herald reports that "Senate confirms Hall to the bench," while The Associated Press reports that "Senate approves Benton judicial nomination."
Posted at 13:12 by Howard Bashman



"U.S. Senate approves Sykes for federal seat; Vacancy will let Doyle appoint her successor to state Supreme Court": This article appears today in The Milwaukee Journal Sentinel. My earlier report on this news, from last night, can be accessed here.
Posted at 13:06 by Howard Bashman



"Calabresi Apologizes for Bush Jabs; Judge Says He's Sorry for 'Partisan' Remarks": Josh Gerstein has this front page article in today's issue of The New York Sun.

In other coverage, The New York Times reports today that "U.S. Judge Apologizes for Equating Victories of Bush and Hitler." Newsday reports that "Judge sorry for Bush-Hitler crack." The Associated Press reports that "Judge Sorry for Likening Bush, Hitler." And Reuters reports that "Judge Regrets Comparing Bush to Hitler."
Posted at 08:08 by Howard Bashman



In news from Seattle: The Seattle Times reports today that "High-court ruling creates turmoil over sentencing." And The Seattle Post-Intelligencer reports that "State's sentencing guidelines tossed out; U.S. Supreme Court rules judges can't impose harsher penalties."
Posted at 08:06 by Howard Bashman



The Houston Chronicle is reporting: Today's newspaper contains articles headlined "Houston killer given reprieve by high court" and "Cheney gets win in records dispute; High court lets energy panel list stay sealed for now."
Posted at 08:05 by Howard Bashman



"High court upholds Ariz. death sentence": This article appears today in The Arizona Republic.
Posted at 08:02 by Howard Bashman



Thursday, June 24, 2004
In Friday's issue of The Washington Post: Charles Lane will have front page articles headlined "High Court Backs Vice President; Energy Documents Shielded for Now" and "Jury Role In Raising Sentences Affirmed; Ruling May Affect States' Procedures."
Posted at 23:10 by Howard Bashman



Available online from law.com: Tony Mauro reports that "Cheney Task Force Papers Stay Under Wraps"; "Supremes Give Juries More Power Over Sentencing Decisions"; and "Solicitor General Olson Resigns; Government's top appellate lawyer says he'll go into private practice." In other news, "New York's High Court Voids State's Death Penalty, 4-3; The law's fatal flaw was telling jurors a deadlock on punishment meant parole eligibility." And Shannon P. Duffy reports that "'Symptoms' Don't Prove 'Pre-Existing Condition.'"
Posted at 23:00 by Howard Bashman



"Justices, in 5-4 Vote, Raise Doubts on Sentencing Rules": Linda Greenhouse will have this article in Friday's issue of The New York Times. She will also have an article headlined "Justices' Ruling Postpones Resolution of Cheney Case."
Posted at 22:42 by Howard Bashman



On this evening's broadcast of NPR's "All Things Considered": The broadcast included segments entitled "High Court Rules on Cheney, Sentencing Protocols" (featuring Nina Totenberg); "Appeals Court Balks at Media Ownership Change": and "Felony Law Would Target Formation of Gangs."
Posted at 22:30 by Howard Bashman



The U.S. Senate confirms Diane S. Sykes to serve on the U.S. Court of Appeals for the Seventh Circuit: The vote was 70 in favor, 27 opposed. Sykes currently serves as a Justice on the Supreme Court of Wisconsin. After law school, Sykes served as law clerk for then-U.S. District Judge Terence T. Evans, who joined the Seventh Circuit back in 1995. Sykes will be filling the seat held by Seventh Circuit Judge John L. Coffey, who will now be taking senior status. In news coverage of this development, The Associated Press reports that "Senate confirms Sykes for appeals court in Chicago."
Posted at 22:14 by Howard Bashman



"Solicitor General Theodore Olson to Quit": The Associated Press has issued this report. This evening, the U.S. Department of Justice issued the following press release:
SOLICITOR GENERAL THEODORE B. OLSON
ANNOUNCES HIS RESIGNATION


WASHINGTON, D.C. – U.S. Solicitor General Theodore B. Olson today announced that he will resign his office in July and return to private practice.

In a letter to President George W. Bush, he wrote: "It has been an enormous privilege for me to serve you and the United States as Solicitor General, and to work with you, Vice President Cheney, Attorney General Ashcroft and the many other outstanding men and women in your Administration. The opportunity to represent the United States before the Supreme Court of the United States, to supervise the appellate work of the United States in the federal courts of the United States, to be a part of the splendid team that you and Attorney General Ashcroft have assembled in the Department of Justice, and to work with the outstanding lawyers in the Office of the Solicitor General, has been exciting, inspiring and, at times, breathtaking. I cannot imagine a more rewarding or fulfilling personal or professional experience."

Ted Olson was nominated by President Bush on February 14, 2001, confirmed by the U.S. Senate, and took the oath of office as the 42nd Solicitor General on June 11, 2001. Under his leadership, the Solicitor's Office had an extraordinary record of success before the Supreme Court.

"Ted Olson is not only one of the most accomplished lawyers to ever hold the office of Solicitor General, he is among the finest individuals it has been my privilege to know," said Attorney General John Ashcroft. "Ted is a dedicated patriot who brought unbridled energy and enthusiasm, along with brilliant legal acumen and peerless dedication to his office and to Justice. He provided invaluable, wise counsel to me, to the President, to the Court, and to the nation. His judgment and legal skill have greatly benefited the American people in so many ways, but particularly in our fight against terror."

In thanking the President and Attorney General, Olson said, "I am also deeply indebted to you for your courage, judgment, leadership and perseverance in conducting the battle against the terrorists who attacked our people and our country on September 11, 2001 and in strengthening America's defenses, and all of its citizens, from future such attacks. I understand that this struggle will be long and arduous, but you have been strong and resolute in setting the nation on the right -- and vitally necessary -- path."

Before joining the federal government, Mr. Olson worked as a partner in the Los Angeles office of Gibson, Dunn & Crutcher, where he practiced constitutional, media, commercial and appellate litigation. Mr. Olson served President Reagan as Assistant Attorney General for the Office of Legal Counsel from 1981 to 1984. After completing his service as Assistant Attorney General, Mr. Olson returned to Gibson, Dunn & Crutcher, in its Washington, D.C. office, engaging in the practice of constitutional and appellate law and general litigation, and served as Partner-in-Charge of that office, on the firm's Executive and Management Committees and as co-chair of the firm's Appellate and Constitutional Law Practice Group. Before rejoining the Justice Department in 2001, he successfully represented candidates George W. Bush and Dick Cheney in the Supreme Court Bush v. Gore cases involving the 2000 presidential election.

Mr. Olson is a Fellow of both the American College of Trial Lawyers and the American Academy of Appellate Lawyers. He has written and lectured extensively on appellate advocacy, oral advocacy in the courtroom and constitutional law.

Mr. Olson was born in Chicago, Illinois, and was educated in public schools in California. He received his bachelor's degree cum laude from the University of the Pacific in Stockton, California, where he received awards as the outstanding graduating student in both journalism and forensics, and his law degree from the University of California at Berkeley (Boalt Hall), where he was a member of the California Law Review and Order of the Coif.
When this press release becomes available online, I will provide a link to it here.
Posted at 20:51 by Howard Bashman



"Supreme Court sends case on Cheney task force back to lower court": Stephen Henderson of Knight Ridder Newspapers provides this report.
Posted at 17:53 by Howard Bashman



Warren Richey is reporting: In Friday's issue of The Christian Science Monitor, he will have articles headlined "Cheney wins a round on paper trail; Supreme Court rules 7 to 2 not to force the vice president to release energy task force records" and "High court declines to overturn death sentences."
Posted at 17:50 by Howard Bashman



Available online from National Public Radio: Today's broadcast of "Talk of the Nation" included a segment entitled "A Look at Supreme Court Decisions" (featuring David G. Savage of The Los Angeles Times).

Today's broadcast of "Day to Day" included segments entitled "Slate's Jurisprudence: Cheney's Secrets Stay Safe, for Now" (featuring Dahlia Lithwick) and "Reserving the Right to Die in Oregon."

And today's broadcast of "Morning Edition" contained segments entitled "High Court Orders More Debate on Cheney Energy Papers" (featuring Nina Totenberg); "Bar Association Calls for Discretion in Sentencing" (also featuring Nina Totenberg); and "Critics: Key Memos on U.S. Torture Policy Withheld."
Posted at 17:32 by Howard Bashman



Supreme Court of Pennsylvania is asked to strike down that Commonwealth's grandparent visitation statute: Today I filed on behalf of a client this petition for allowance of appeal in the Pennsylvania Supreme Court.
Posted at 17:15 by Howard Bashman



Solicitor General Theodore B. Olson plans to resign from that office this summer: National Review Online's "The Corner" confirms what you first learned from me here earlier today.
Posted at 17:13 by Howard Bashman



Today's decisions of note from the U.S. Court of Appeals for the Ninth Circuit: Ninth Circuit Judge Jay S. Bybee, whom "Wonkette" appears to take pleasure in poking fun at here, issued an opinion on behalf of a unanimous three-judge panel rejecting a facial First Amendment challenge to the Oregon Mass Gathering Act.

And a separate panel decides what appears to be a nationwide case of first impression involving the acceptance of responsibility provision of the federal Sentencing Guidelines. Specifically, the question presented is "May a defendant charged under two separate indictments that are later grouped together for sentencing receive a downward adjustment for acceptance of responsibility when he pleaded guilty to the charges in one indictment, but went to trial on the charges in the other indictment?" The case involves a defendant who had pretended to be the son of Dr. Jerry H. Buss, the owner of the Los Angeles Lakers professional basketball franchise. This being the Ninth Circuit, you might be able to predict the outcome even before you access the opinion.
Posted at 17:05 by Howard Bashman



The U.S. Court of Appeals for the Fifth Circuit issues some unpublished opinions today: Actually, it's a bumper crop, as you can see if you click here promptly.
Posted at 16:50 by Howard Bashman



The wire services are reporting: Anne Gearan of The Associated Press reports that "High Court: Judges Can't Add Prison Time." And in other news, "Court Tosses Media Deregulation Package."

Meanwhile, Reuters reports that "Court Blocks Loosened Media Rules."
Posted at 16:46 by Howard Bashman



Federal appellate court denies rehearing en banc following 4-1 vote in favor of rehearing en banc: See this order and accompanying dissent that the U.S. Court of Appeals for the Fourth Circuit issued today.
Posted at 15:40 by Howard Bashman



One of today's posts regrettably involves the pubic area, but this one didn't: At least not until a reader at the Georgetown University Law Center brought to my attention a typo at the top of page three of this opinion. Update: The court has already fixed the mistake, so the link now brings up the original version of the opinion online at FindLaw.
Posted at 15:32 by Howard Bashman



"High Court Backs Cheney on Energy Hearings": The Los Angeles Times provides this news update.
Posted at 14:08 by Howard Bashman



Lose a U.S. Supreme Court case, gain a major-newspaper op-ed: First was Michael Newdow, whose op-ed appeared in The New York Times this past Monday. Today, The Los Angeles Times published an op-ed written by Larry Dudley Hiibel, and it truly seems as though no ghost-writers were involved.
Posted at 14:01 by Howard Bashman



James Vicini of Reuters is reporting: He has articles headlined "U.S. court won't make Cheney energy papers public" and "Top Court Limits Reach of Death Penalty Ruling."
Posted at 13:58 by Howard Bashman



Will this group of nine Justices outlast the tenure of another Tenth Justice? Anything is possible, I suppose. Of course, if there's anything to this, I'll be certain to link to more details later. After all, why should end-of-Term rumors be limited only to those serving on the Court?
Posted at 13:55 by Howard Bashman



BREAKING NEWS -- U.S. Court of Appeals for the Third Circuit refuses to strike down FCC media ownership rules but keeps stay in place: You can access today's ruling at this link (218-page PDF document). Reuters offers an early report headlined "Court Keeps Stay on Media Rules - Source."
Posted at 13:30 by Howard Bashman



Who more accurately predicted the outcome of U.S. Supreme Court rulings: legal experts or a statistical model? The answer can be found here, in a law review article reporting on the results of the Supreme Court Forecasting Project. (And people wonder why so many law professors hate statistics!)
Posted at 13:26 by Howard Bashman



"Judge's ouster sought": Today's issue of The Oklahoman contains this article. And, at the risk of encroaching on what should solely be within the purview of a blog called "Underneath Their Robes," you can access both here and here the petition that Oklahoma Attorney General W.A. Drew Edmondson filed earlier this week.
Posted at 13:14 by Howard Bashman



The U.S. Court of Appeals for the Federal Circuit issues rulings in two cases involving constitutional challenges to the U.S. military's ban on funding abortions: In the more significant decision, a three-judge Federal Circuit panel unanimously upholds the constitutionality of the ban. In its ruling in the other case, however, a unanimous three-judge panel lays the groundwork for a possible circuit split on the substantive issue by transferring a separate appeal challenging the same funding ban to the U.S. Court of Appeals for the Ninth Circuit.
Posted at 11:52 by Howard Bashman



"A Supreme Court Dialogue: The Ugliness That Blooms in Secret." Online at Slate, Walter Dellinger and Dahlia Lithwick prepare to discuss the rulings that the U.S. Supreme Court has issued today and will be issuing next week. Update: Lithwick kicked off the discussion, and now Dellinger responds.
Posted at 11:46 by Howard Bashman



"Court: N.Y. Death Penalty Unconstitutional." The Associated Press provides this report on the ruling that I first noted here.
Posted at 11:42 by Howard Bashman



Today's U.S. Supreme Court opinions: The Supreme Court of the United States today issued five opinions in argued cases. You can now access the opinions directly either via this link or this link.

1. Justice Clarence Thomas issued the opinion of the Court in Beard v. Banks, No. 02-1603, and the judgment under review was reversed and the case remanded. You can access the syllabus here; Justice Thomas's opinion for the Court, in which the Chief Justice and Justices Sandra Day O'Connor, Antonin Scalia, and Anthony M. Kennedy joined, here; Justice John Paul Stevens' dissenting opinion, in which Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer joined, here; and Justice Souter's dissenting opinion, in which Justice Ginsburg joined, here.

2. Justice Kennedy issued the opinion of the Court in Cheney v. United States Dist. Court for D.C., No. 03-475, and the judgment under review was vacated and the case remanded. You can access the syllabus here; Justice Kennedy's opinion for the Court, in which the Chief Justice and Justices Stevens, O'Connor, and Breyer joined in full and Justices Scalia and Thomas joined in part, here; Justice Stevens' concurring opinion here; Justice Thomas's opinion concurring in part and dissenting in part, in which Justice Scalia joined, here; and Justice Ginsburg's dissenting opinion, in which Justice Souter joined, here.

3. Justice Scalia issued the opinion of the Court in Blakely v. Washington, No. 02-1632, and the judgment under review was reversed and remanded. You can access the syllabus here; Justice Scalia's opinion for the Court, in which Justices Stevens, Souter, Thomas, and Ginsburg joined, here; Justice O'Connor's dissenting opinion, in which Justice Breyer joined in full and the Chief Justice and Justice Kennedy joined in part, here; Justice Kennedy's dissenting opinion, in which Justice Breyer joined, here; and Justice Breyer's dissenting opinion, in which Justice O'Connor joined, here.

4. Justice Scalia also issued the opinion of the Court in Schriro v. Summerlin, No. 03-526, and the judgment under review was reversed and the case remanded. You can access the syllabus here; Justice Scalia's opinion for the Court, in which the Chief Justice and Justices O'Connor, Kennedy, and Thomas joined, here; and Justice Breyer's dissenting opinion, in which Justices Stevens, Souter, and Ginsburg joined, here.

5. Finally, Justice O'Connor issued the opinion of the Court in Tennard v. Dretke, No. 02-10038, and the judgment under review was reversed and remanded. You can access the syllabus here; Justice O'Connor's opinion for the Court, in which Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer joined, here; the Chief Justice's dissenting opinion here; Justice Scalia's dissenting opinion here; and Justice Thomas's dissenting opinion here.

Gina Holland of The Associated Press reports that "Court Won't Order Cheney Papers Released" and "High Court Won't Overturn Death Sentences."
Posted at 10:00 by Howard Bashman



"O'Connor not confined by conservatism": Joan Biskupic today has this profile of Justice Sandra Day O'Connor in USA Today.
Posted at 09:59 by Howard Bashman



New York State's highest court declares that State's death penalty statute unconstitutional: You can access today's ruling of the New York State Court of Appeals at this link.
Posted at 09:58 by Howard Bashman



Available online from law.com: An article reports that "Federal Circuit Says No Back Pay for DOJ Lawyers." In other news, "9th Circuit Snaps at Gator's Argument." An article reports that "Disabled Moviegoers Fight Stadium Seating." And Shannon P. Duffy reports that "Quakers Must Obey IRS Levy on War Tax Protester's Wages."
Posted at 08:20 by Howard Bashman



They come in peace: On the U.S. Supreme Court's previous two opinion issuance dates, zillions of "How Appealing" readers have attempted to access the blog between 10:30 a.m. and noon. Unfortunately, that intense amount of traffic fooled this blog's servers into responding as though a denial-of-service attack was underway, causing the entire Web site of Legal Affairs magazine (including this blog) to go off-line for a bit. The good folks on the technical end of the Legal Affairs Web site have implemented what they hope is a solution to that issue, and my fingers are crossed in anticipation. If, nevertheless, this page should happen to become inaccessible between 10 a.m. and noon today, I will temporarily post my reports on this morning's U.S. Supreme Court rulings to this blog's back-up page, which can be accessed at this address:
http://howappealing.blogspot.com/
Please make a note of that address, because if you need it, you won't be able to access it here.
Posted at 08:10 by Howard Bashman



On the agenda: At 10 a.m. today, the Supreme Court of the United States is scheduled to issue additional opinions in argued cases. A list of the twelve remaining argued cases in which opinions remain to be issued this Term can be accessed here. Stay tuned for complete coverage. My guess is that the Court today will announce rulings in four to seven of those cases, many of which are end-of-Term blockbusters.
Posted at 08:00 by Howard Bashman



Wednesday, June 23, 2004
Elsewhere in Wednesday's newspapers: The Washington Times, in news relating to the war on terror, reports that "'Values' guided Bush torture ban" and "Iraq trials expect 'following orders' defense." An article reports that "Marriage bill backed by Romney." In other news, "Judge orders trial of convicted sniper." And Paul Greenberg has an op-ed entitled "John Walker Lindh mistreated?"

USA Today, in news relating to the war on terror, reports that "Interrogation memo to be replaced; Justice Dept. official calls legal advice overly broad"; "Search began with a stubborn detainee; New interrogation methods requested after prisoner resists"; "White House responds to critics with policy disclosure"; "General promised quick results if Gitmo plan used at Abu Ghraib; But Miller asked for extra guards and legal adviser"; and "Rumsfeld OK'd harsh treatment; Interrogation documents made public." In business news, "Wal-Mart in record sex-bias lawsuit; 1.6M women covered; retailer plans appeal." And in other news, "Simpson trial experts testify in Bryant case; Met with judge for three hours."

The Boston Globe reports that "Memos detail debate on prisoners; Rumsfeld reversed OK of severe interrogations." In other news, "Romney urges federal ban on gay-marriage 'experiment.'" A related editorial is entitled "Romney's marriage vows." And columnist Scot Lehigh has a related op-ed entitled "Is Romney running against Bay State?"

The Los Angeles Times, in news relating to the war on terror, reports that "Files Show Bush Team Torn Over POW Rules"; "Lawyer's Terror Trial Opens; The defense attorney is accused of helping a Muslim cleric send messages from his prison cell inciting his followers to attack"; and "Iraq Prison Abuse Undermines U.S. Hope for War Crimes Waiver; Some nations on U.N. council are balking at extending exemptions for Americans, forcing Bush officials into a diplomatic scramble." In business news, "Wal-Mart Must Face Huge Sex-Bias Suit; Case is given class-action status; The ruling could spur mass complaints against other U.S. firms"; "Women Recount Pervasive Inequality at Wal-Mart"; and "Judge Is Known as Diligent and Fair." In news from Colorado, "Rape-Shield Issue Unresolved; Forensic experts testify for both sides, but judge in Bryant case won't rule until end of the month; Trial is unlikely to start before September." And an editorial is entitled "Congress Can Cure This."
Posted at 23:44 by Howard Bashman



On today's broadcast of NPR's "Talk of the Nation": The broadcast contained segments entitled "Police and Personal Identity"; "Prisoner Interrogation Documents Released" (featuring Law Professor Douglas W. Kmiec); and "Diversity on Campus" (Real Player required).
Posted at 23:33 by Howard Bashman



The San Francisco Chronicle is reporting: Today's newspaper reports that "Wal-Mart faces huge sex discrimination suit; Class-action status for case on behalf of 1.6 million women." And a news update is headlined "Juror No. 5 dismissed from Peterson trial."
Posted at 23:32 by Howard Bashman



"U.S. judge issues a mixed ruling in Quaker tax case": This article about a case involving the federal Religious Freedom Restoration Act appears today in The Philadelphia Inquirer.
Posted at 23:30 by Howard Bashman



"Test case set for Megan's law": The Honolulu Advertiser today contains this report.
Posted at 23:25 by Howard Bashman



In same-sex marriage-related news: The Salt Lake Tribune reports that "GOP gay-wed bill gets Hatch's support." The Deseret Morning News reports that "Romney calls for marriage amendment." And The AP reports from New Mexico that "Supreme Court Asks For Legal Arguments In Same-Sex Marriage Case."
Posted at 23:12 by Howard Bashman



"5 justices won't hear appeal in $77M case; Recusals to force governor to make high-court appointments": This article appears today in The Clarion-Ledger of Jackson, Mississippi.
Posted at 23:11 by Howard Bashman



"Mistrial in punitive phase of Pensacola newspaper lawsuit": The Associated Press provides this report.
Posted at 23:10 by Howard Bashman



"Author of '02 Memo on Torture: 'Gentle' Soul for a Harsh Topic." In Thursday's edition of The New York Times, Adam Liptak will have this profile of Ninth Circuit Judge Jay S. Bybee.
Posted at 23:02 by Howard Bashman



In news from Utah: The Salt Lake Tribune reports today that "Justices uphold religious peyote use." The Deseret Morning News reports that "Church's peyote use OK'd; High court ruling may clear founder of charges." And The Provo Daily Herald reports that "Non-American Indians can use peyote, court rules." I first noted yesterday's ruling of the Supreme Court of Utah last night in a post you can access here.
Posted at 21:02 by Howard Bashman



"Cooped Up" is back: See for yourself -- plus Law Professor Jeff Cooper has some very positive news to share about his son.
Posted at 20:02 by Howard Bashman



Point of Information: The Web log "Point of Law," sponsored by the Manhattan Institute to bring together information and opinion on the U.S. litigation system, is now up and running. Be sure to drop by and take a look around.
Posted at 19:50 by Howard Bashman



"Court nominee has awful record on civil rights; Judge Dennis Shedd is too conservative for the 4th Circuit court": That was the headline of an op-ed that Law Professor Erwin Chemerinsky published in The Charlotte Observer back in September 2002. Regardless of whether that opinion ever had merit, today Fourth Circuit Judge Dennis W. Shedd issued a decision on behalf of a three-judge panel of that court which civil rights advocates are likely to applaud.
Posted at 18:00 by Howard Bashman



Available today from National Review Online: Curtis Edmonds has an essay entitled "Still Standing: The Supreme Court upheld a vital doctrine in Newdow." And Roger Clegg has an essay entitled "Grutter @ 1: Progress and deja vu."
Posted at 17:56 by Howard Bashman



"Politics From the Bench": Today's edition of The Wall Street Journal contains an editorial that begins, "In case you've been living on Pago Pago and haven't heard, American liberals loathe President Bush. But even those of us who hear this every day are surprised at the recent remarks by federal judge Guido Calabresi."
Posted at 15:56 by Howard Bashman



"20 questions for the appellate judge" update: I'm very pleased to report that Justice Larry V. Starcher of the Supreme Court of Appeals of West Virginia will be the November 2004 interviewee in this Web log's "20 questions" feature. Now all that remains to be seen is where among those questions I will ask what purpose the "of Appeals" serves in that court's formal name.
Posted at 14:14 by Howard Bashman



Clever by designation: Senior Seventh Circuit Judge Richard D. Cudahy, sitting by designation on the U.S. Court of Appeals for the Sixth Circuit, today issued an opinion on behalf of a unanimous three-judge Sixth Circuit panel that begins "Your mother refused to buy you a BB gun, warning that 'you'll shoot your eye out.' Apparently she was right to be concerned. Based on the facts of this case and a review of other cases on the topic, it seems that BBs are attracted to children's eyes as politicians are attracted to television cameras."
Posted at 14:06 by Howard Bashman



Federal appellate judicial law clerk writes law review article that might cause an inmate to be removed from death row: Surely many judicial law clerks have written impressive law review articles, but how many of those articles have actually saved someone's life? A law clerk to Senior Sixth Circuit Judge Richard F. Suhrheinrich may have done just that. For the details, see this quite amazing opinion that the U.S. Court of Appeals for the Sixth Circuit issued today on a sua sponte grant of panel rehearing. The article, tentatively titled "How I Saved Some Guy's Life By Writing This Law Review Article," isn't yet available online at SSRN.
Posted at 13:56 by Howard Bashman



"Secrecy Shrouds Rowland Appeal; Judges Say Arguments In Open Court Could Compromise Grand Jury's Work": The Hartford Courant today contains an article that begins, "A three-judge panel of the U.S. 2nd Circuit Court of Appeals spent an hour behind closed doors Tuesday hearing arguments on whether attorney-client privilege extends to Gov. John G. Rowland's communications with his state-paid lawyers."
Posted at 13:30 by Howard Bashman



The U.S. Court of Appeals for the Federal Circuit delivers quite bad news for John Doe: Today a unanimous three-judge panel of that court issued an opinion in the case of Doe v. United States that begins:
Department of Justice ("DOJ") attorneys brought a class action lawsuit in the Court of Federal Claims seeking overtime compensation. The Federal Employees Pay Act ("FEPA"), 5 U.S.C. sec. 5542 (2000), provides for such compensation only when overtime has been “officially ordered or approved.” Id. sec. 5542(a). The relevant Office of Personnel Management ("OPM") regulation requires that overtime be officially "ordered or approved ... in writing." 5 C.F.R. sec. 550.111(c) (2004). Because the overtime here was not officially ordered or approved in writing as required by the regulation, we hold that the plaintiffs were not entitled to compensation under FEPA; reverse the Court of Federal Claims' grant of summary judgment in the plaintiffs' favor, see Doe v. United States, 54 Fed. Cl. 404 (2002) ("Doe I"); and hold that summary judgment should have been granted in favor of the government.
The opinion explains that "The plaintiffs (appellees in this court) are representatives of a class of more than nine thousand former and current DOJ attorneys who brought suit in the Court of Federal Claims in 1998, claiming compensation under FEPA for overtime work performed from 1992 to the date of a final judgment in this case." You can access the complete ruling at this link.
Posted at 11:47 by Howard Bashman



"Waiving Goodbye To Your Best Issues On Appeal": The brand new installment of my monthly appellate column, published in The Legal Intelligencer on Monday, June 14, 2004, can be accessed here.
Posted at 11:10 by Howard Bashman



"ABA: End Mandatory Minimum Prison Terms." Anne Gearan of The Associated Press provides this report.
Posted at 10:18 by Howard Bashman



Today's Senate Judiciary Committee confirmation hearing has been postponed indefinitely: A notice that you can access here provides the details. Some will opine that the postponement is a result of this news.
Posted at 10:05 by Howard Bashman



"We haven't heard the last from Fieger": Columnist Brian Dickerson today has this essay in The Detroit Free Press.
Posted at 10:04 by Howard Bashman



"U.S. Appeals Court denies Kevorkian a new trial; His case will now go to U.S. Supreme Court, his attorney says": This article appears today in The Detroit News.
Posted at 10:02 by Howard Bashman



"Justice O'Connor Honored for Service": The Associated Press provides this report.
Posted at 07:38 by Howard Bashman



In Wednesday's newspapers: In The New York Times, Adam Liptak reports that "Federal Law on Sentencing Is Unjust, Judge Rules." In other news, "U.S. Prosecutor Says Lawyer Aided Terror." An article reports that "Amendment's Backers Try Again on Same-Sex Marriages." In business news, "Wal-Mart Sex-Bias Suit Given Class-Action Status"; "Welcome to Wal-Mart; Please Help Me"; and "Senate Votes to Repeal Media Rules." An article reports that "Files Show Rumsfeld Rejected Some Efforts to Toughen Prison Rules." In somewhat related news, "U.S. Rewords a Resolution on Immunity for Its Troops." In news from Connecticut, "First Things First: A Home, a Car and a Federal Investigation." And an editorial is entitled "A Blow to Health Plan Patients."

The Washington Post reports that "U.S. Liability Key Concern in '02 Debate on Detainees." In related news, "Spirited Debate Preceded Policies; Pentagon Lawyers Urged Restraint" and "U.S. Alters Its Plan for Exemption At Court." An article reports that "Wal-Mart Bias Case Moves Forward; 1.6 Million Women May Join Class-Action Suit." In regional news, "Muhammad Has Hearing In Fairfax For 2nd Trial." And an article reports that "Post State Dept. Reporter Questioned in Leak Probe."

The Christian Science Monitor reports that "Wal-Mart goes to trial: Federal judge approves largest class-action discrimination suit against largest US retailer." In other news, "High stakes, harsh scrutiny as prison-abuse trials go on." And an article is headlined "Why HMO angst is a hard issue for Congress: In wake of court ruling this week, some lawmakers renew push for 'patients' rights.'"
Posted at 07:33 by Howard Bashman



"Judge's 'Mussolini' Comments Violated Ethics, Critics Say; Calabresi Questioned Legitimacy of President": Today's edition of The New York Sun contains this follow-up report by Josh Gerstein.
Posted at 07:22 by Howard Bashman



"Governor appoints Nabers chief justice": This article appears today in The Birmingham News. And The Montgomery Advertiser reports that "Nabers state's new chief justice," while an editorial is entitled "Riley picks well for chief justice."
Posted at 07:00 by Howard Bashman



Tuesday, June 22, 2004
On this evening's broadcast of NPR's "All Things Considered": The broadcast included segments entitled "Senate Committee Weighs Gay Marriage"; "White House Releases Files on Interrogating Detainees"; and "Wal-Mart Faces Largest-Ever Sex-Discrimination Suit" (Real Player required).
Posted at 23:55 by Howard Bashman



In Tuesday's newspapers: The New York Times reports that "Lawyer Accused of Aiding Terrorism Sees Fear as Obstacle." In other news relating to the war on terror, "Rules on Prisoners Seen as Sending Mixed Messages to G.I.'s" and "Top Commanders Face Questioning on Prison Abuse." In news from Connecticut, "Under Pressure, Rowland Resigns Governor's Post" and "U.S. Inquiry Now the Focus of Case Against Governor." An editorial is entitled "A Governor Resigns in Disgrace." And columnist Paul Krugman has an op-ed entitled "Noonday in the Shade."

The Washington Post reports that "Accused of Aiding Terror Plot, Lawyer Braces for Fight of Her Life; Attorney for Militant Sheik Plans Lengthy Testimony in Own Defense." In news related to the war on terror, "Judge Says Generals Can Be Questioned In Abu Ghraib Case" and "Egyptian Man to Remain Jailed; Suspect Held in Connection With Va. Islamic Charity Probe." An article reports that "Connecticut Governor Resigns; Rowland Was Facing Impeachment Move." An article is headlined "International Man of Mystery: The Ex-CIA Agent And Current Convict Has Many Stories To Tell; Some May Even Be True." And an editorial is entitled "What's in a Name?"

The Washington Times reports that "Teen nudist law faces challenge."

USA Today reports that "Generals ordered to testify on abuse; Abu Ghraib case will be kept in Iraq." In other news, "Scandal-plagued Conn. governor to resign; Rowland risked being impeached." An article is headlined "Native American prison probe: At least 16 deaths since 2001." And Law Professor Jonathan Turley has an op-ed entitled "Abu Ghraib images bring lessons closer to home; U.S. should embrace taped interrogations."

The Boston Globe reports that "US commanders face questioning on abuse." In other news, "Dogged by scandal, somber Rowland resigns; Conn. governor's move derails impeachment." An article reports that "Romney to speak before US panel; Hearing to target same-sex marriage." And columnist Joan Vennochi has an op-ed entitled "Mitt leads GOP ploy on gay unions."

In The Los Angeles Times, Henry Weinstein reports that "Court Upholds Imperial County Clean Air Rules; U.S. justices reject contention by farmers and the EPA that Mexico is source of pollution." In other news, "Bill Seeks to Curb Polluting Mexican Trucks; Vehicles would not be allowed to travel in California unless they met U.S. standards." An article reports that "Judge Orders Army Leaders Questioned; Testimony by generals in the prison abuse case 'is high-stakes poker,' a military law expert says." In other news, "Connecticut's Gov. Rowland Steps Down; The Republican risked impeachment and is the subject of a federal corruption probe." In business news, "Ellison Prediction Haunts Bid for Rival; Antitrust lawyers play a tape of the Oracle CEO saying big firms would nudge out smaller ones" and "How the Decision Affects Patients." In news from Colorado, "Bryant Case Still Moving Slowly; Latest matter for both sides and judge is the definition of consent; A trial date might not be set until judge rules on prominent issues." In local news, "Charges Dismissed Against 2 Defendants in UCLA Rape Case; Jury cleared them of key counts but deadlocked on others; A third man will be retried." And letters to the editor appear under the headings "Seeing Anti-Christian Bigotry in the ACLU" and "Words and Wars."
Posted at 23:40 by Howard Bashman



The U.S. Department of Justice's Office of Public Affairs has this evening released in electronic format six DOJ Documents Regarding Al-Qaeda Interrogations: The six documents are linked below in chronological order:
Memorandum from Jay S. Bybee to Alberto R. Gonzales and William J. Haynes, II "Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees" dated January 22, 2002;

Letter to President Bush from John Ashcroft dated February 1, 2002;

Memorandum from Jay S. Bybee to Alberto R. Gonzales "Re: Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949" dated February 7, 2002;

Memorandum from Jay S. Bybee to William J. Haynes, II "Re: Potential Legal Constraints Applicable to Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan" dated February 26, 2002;

Letter from John C. Yoo to Alberto R. Gonzales dated August 1, 2002; and

Memorandum from Jay S. Bybee to Alberto R. Gonzales "Re: Standards of Conduct for Interrogation under 18 U.S.C. secs. 2340-2340A" dated August 1, 2002.
Bush Administration and Defense Department officials held a press briefing concerning these documents earlier today, and you can access the transcript (which has just become available) at this link. Thanks so very, very much to the reader who forwarded these documents to me.

Phil Carter's "Intel Dump" blog reports here that the Department of Defense is providing online access via this link (scroll down to bottom of page) to related documents that it originated.

Wednesday's issue of The New York Times will report that "Orders by Bush About Prisoners Set Humane Tone." Wednesday's issue of The Washington Post will report that "Document On Prison Tactics Disavowed; Justice Memo Had Said Torture May Be Defensible." The Los Angeles Times provides a news update headlined "Rumsfeld Linked to Handling of POWs." And The Associated Press reports that "Bush Claimed Right to Waive Torture Laws."
Posted at 23:00 by Howard Bashman



"Counties ask Supreme Court to consider Ten Commandments case": The AP reports here that "Attorneys representing local governments and a school district in Kentucky have asked the U.S. Supreme Court to consider whether it is constitutional to display the Ten Commandments alongside other historical documents. Liberty Counsel, a Florida public interest law firm, filed the petition to the Supreme Court after the 6th U.S. Circuit Court of Appeals refused to reconsider a decision that ruled the Ten Commandments should not be posted in public buildings in Kentucky, even if the religious laws are accompanied by other historical documents." Liberty Counsel today issued this press release, and the petitions for writ of certiorari filed today can be accessed here and here.
Posted at 21:11 by Howard Bashman



The Supreme Court of Alabama gets a new Chief Justice: The Huntsville Times reports today that "Nabers replaces Moore as chief justice; Governor calls his appointee 'a deeply religious man.'" The Montgomery Advertiser reports that "Riley picks Nabers as chief justice." The Associated Press reports that "Riley names Nabers to replace Moore as chief justice." And in earlier coverage, The Birmingham News reported today that "Nabers may be Riley's choice for chief justice."
Posted at 21:05 by Howard Bashman



Scott Claffee was there: Secret admirer Scott Claffee (who sought to meet me for a cup of coffee when his quest for a judicial clerkship brought him back to his hometown of Philadelphia, and of course I was pleased to do so) heard Second Circuit Judge Guido Calabresi speak at this past weekend's 2004 ACS National Convention, and Scott has this to say about the resulting outcry caused by remarks first reported here.
Posted at 20:24 by Howard Bashman



The Supreme Court of Utah delivers good news to members of the Native American Church who wish to use peyote: You can access today's unanimous ruling at this link.
Posted at 20:15 by Howard Bashman



"Hearings for Michigan Nominees Should Speed Reform; U.S. Senate committee chairman ignores custom, clearing way for hearings and votes on Bush federal court appointees": This editorial appears today in The Detroit News.
Posted at 18:46 by Howard Bashman



The wire services are reporting: The Associated Press reports that "White House Disavows Memo on Interrogation" and "Lawyer's Resignation Delayed Abuse Hearing." And Reuters reports that "New York Lawyer Goes on Trial for Aiding Terrorism."
Posted at 18:40 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "White House Releasing Interrogation File" and "Trial of Terrorist Sheik's Lawyer Opens."
Posted at 16:20 by Howard Bashman



A first-hand report on last week's meeting of the U.S. Court's Standing Committee on Rules of Practice and Procedure: I recently asked Law Professor Patrick Schiltz, the Reporter to the Advisory Committee on Appellate Rules, for a report on what happened at last week's meeting of the Standing Committee on Rules of Practice and Procedure. (An overview of the rulemaking process can be accessed here.)

Professor Schiltz has kindly provided the following response:
All of the proposed amendments to FRAP -- including new Rule 28.1 on cross-appeals and the amendment to Rule 35(a) on en banc proceedings -- were unanimously approved, with the exception of Rule 32.1 on unpublished opinions.

The discussion of Rule 32.1 was understandably lengthy and spirited. It was clear that the Standing Committee had read the comments carefully and given the proposed rule a great deal of thought. In addition, many of the members mentioned that they had been lobbied by opponents and supporters of Rule 32.1.

Almost all of the members spoke about Rule 32.1. No member spoke in defense of no-citation rules; in other words, no one said that he or she thought that no-citation rules were a good idea. To the contrary, those who spoke about the merits of no-citation rules were critical of them.

Similarly, as best as I can recall, only one member opposed Rule 32.1 on the merits, and he stressed that he found it a very close call. Several other members expressed various degrees of support for the rule on the merits.

At the end of the day, however, the Committee unanimously agreed to postpone action on the rule to give the Federal Judicial Center time to research some of the concerns raised by the rule's opponents. Committee members were emphatic that this decision was not a reflection of their views on the merits of Rule 32.1. Rather, Committee members were motivated by what I would call "institutional" concerns. They stressed that, in order to achieve as much consensus as possible, it is important to exhaust every reasonable effort to study the claims of the opponents.

Members acknowledged that some of the arguments of Rule 32.1's opponents are not empirical claims that can be either supported or refuted by further study. But the Committee identified a number of claims on which the FJC might be able to shed some light. For example, opponents of Rule 32.1 claim that abolishing no-citation rules would result in slower dispositions of appellate cases, more one-line judgment orders, and substantially more citation of unpublished opinions in briefs. These are claims that can be tested - albeit imperfectly - by examining the experiences of those federal and state courts that have abolished or liberalized no-citation rules.

The FJC has already begun work on its study and will report its findings to the Advisory Committee when the study is concluded. The Advisory Committee will then have to decide whether Rule 32.1 should again be forwarded to the Standing Committee. Unless major changes are made in the rule, it would not have to be published again for public comment.
I thank Professor Schiltz for having taken the time to provide this very informative report. My summary of these particular appellate rule changes can be accessed here.
Posted at 15:22 by Howard Bashman



"Sykes had previous dealings with abortion protester, records show": The Milwaukee Journal Sentinel today contains an article that begins, "An abortion protester Diane S. Sykes praised as 'exemplary' before she sentenced him in Milwaukee County Circuit Court in 1993 had appeared before her at least six times as he faced trial for a different criminal charge, court records show. The records cast new light on statements that Sykes, now a Wisconsin Supreme Court justice, made in recent months to an Illinois Democrat on the U.S. Senate Judiciary Committee who has questioned her truthfulness."
Posted at 15:12 by Howard Bashman



On today's broadcast of NPR's "Day to Day": The broadcast contained segments entitled "Slate's Jurisprudence: Key Rulings by the Supreme Court" (featuring Dahlia Lithwick) and "The Marketplace Report: Walmart Discrimination Lawsuit" (Real Player required).
Posted at 15:00 by Howard Bashman



"Bad ID": The New Republic Online today has posted online Will Baude's debut essay for that publication. Baude, founder of the "Crescat Sententia" blog, writes about yesterday's U.S. Supreme Court ruling in Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty.
Posted at 13:01 by Howard Bashman



"Judge Certifies Wal-Mart Sex Bias Suit": Reuters provides this report, while David Kravets of The Associated Press reports that "Judge approves class-action discrimination case against Wal-Mart." You can access yesterday's ruling by District Judge Martin J. Jenkins of the U.S. District Court for the Northern District of California at this link, and a related decision can be accessed here.
Posted at 12:18 by Howard Bashman



"Chief Judge Young Declares Sentencing Guidelines Unconstitutional": Massachusetts Lawyers Weekly provides this report on a ruling that Chief Judge William G. Young of the U.S. District Court for the District of Massachusetts released yesterday. Following two quotations, the very lengthy opinion begins: "Here's a not-so-hypothetical conversation between an eager and enthusiastic district judge and an experienced and reflective circuit judge." The entire ruling appears quite fascinating.
Posted at 11:26 by Howard Bashman



"Judicial Disorder: GOP plays hardball over Michigan federal seats." This editorial appears today in The Detroit Free Press.
Posted at 10:01 by Howard Bashman



"We don't need no stinkin' badges": The Salt Lake Tribune reports today that "D.C. court nominee lacks Utah law license." And The Deseret Morning News reports today that "Griffith's court nomination suffers a blow."
Posted at 09:50 by Howard Bashman



"Judge With A Grudge": The New York Post today contains this editorial on the Guido Calabresi kerfuffle (see here and here for more details). Now if only The NYPost would spell the judge's last name correctly.
Posted at 08:30 by Howard Bashman



In the July|August 2004 issue of Legal Affairs magazine: Content from the new issue has been posted online today (view the cover here). Of particular interest to me, Seventh Circuit Judge Richard A. Posner debates the issue "Should foreign or international legal decisions ever be considered relevant to United States Supreme Court rulings?" with Law Professor Vicki Jackson. Judge Posner's essay is here, and Professor Jackson's is here.
Posted at 08:18 by Howard Bashman



"9 Turn to Right in Two Decisions Closely Watched; Limit HMO Lawsuits, Back Police Queries": Josh Gerstein has this article today in The New York Sun.
Posted at 07:20 by Howard Bashman



Justices say suits against an HMO are a no-go: The Houston Chronicle reports that "Court ruling favors HMOs; Patients can't seek damages at state level." David G. Savage of The Los Angeles Times reports that "High Court Limits Right to Sue HMOs; A 30-year-old law blocks state suits against insurers, justices say; The 9-0 ruling affects 130 million in the U.S. and reignites calls for a patients bill of rights." Joan Biskupic of USA Today reports that "Court limits HMO lawsuits; States' patient laws don't apply." The Chicago Tribune reports that "Justices protect HMOs from big damage awards." The Boston Globe reports that "Court limits patient suits vs. insurers; Federal law curbs damages, justices rule." And The Washington Times reports that "Court shields HMOs from malpractice."

Elsewhere, The San Francisco Chronicle reports that "Justices limit suits against HMOs; No damages when coverage denied for recommended care." The Baltimore Sun reports that "Justices give HMOs shield from lawsuits; Malpractice claims based on denial of service barred; 'Step backward,' critics say; Industry lauds ruling, says litigation is 'out of control.'" The Hartford Courant reports that "High Court Gives HMOs A Victory; Sets Aside Lower-Court Decision, Rules Patients Can't Sue Health Insurers In State Courts." The Seattle Post-Intelligencer contains an article headlined "Setback for patients' rights; High court curbs big-dollar lawsuits against insurers."

The St. Petersburg Times reports that "Court shields HMOs from suits; In a 9-0 ruling, justices rule that patients can't sue managed care providers for failing to pay for recommended treatment." The San Diego Union-Tribune reports that "High court ruling impairs patients' rights to sue HMOs." The Portland (Me.) Press Herald reports that "Supreme Court protects HMOs." And The Arizona Daily Star reports that "U.S. justices restrict right to sue HMOs; Ruling likely affects Ariz. law on denial of care."
Posted at 07:00 by Howard Bashman



"AMD Can Seek Documents From Intel Via U.S. Courts; The chip maker wants the papers for use in its European antitrust case": This article appears today in The Los Angeles Times. The San Jose Mercury News reports that "High court says judge can demand Intel papers; Rival AMD wants documents for suit." USA Today contains an article headlined "High court: Intel can be forced to give documents." And Financial Times contains an article headlined "Alarm over ruling on documents discovery."
Posted at 06:53 by Howard Bashman



U.S. Supreme Court rules that Dudley didn't do-right: The Las Vegas Review-Journal today reports that "In Nevada case, high court rules police may ask for ID." The Reno Gazette-Journal reports today that "Court says police can require ID; Nevada rancher loses his case: Civil liberties groups say justices' decision is a defeat for privacy."

Elsewhere, David G. Savage of The Los Angeles Times reports that "High Court Says IDs Can Be Required in Police Stops; In a 5-4 decision, the justices reject the idea that Americans have a right to refuse to give their names to officers." Joan Biskupic of USA Today reports that "High court rules police can demand identification; Justices: It doesn't violate civil liberties." The Washington Times reports that "Court backs police on showing of ID." Bob Egelko of The San Francisco Chronicle reports that "Police can ask for IDs, high court says." The Pittsburgh Post-Gazette reports that "Supreme Court says police can ask for ID." The Atlanta Journal-Constitution contains an article headlined "Give name or go to jail; Court upholds power to arrest people who refuse." And The Washington Post contains an editorial entitled "What's in a Name?"
Posted at 06:30 by Howard Bashman



"Let’s you and I debate this in public Sen. Hatch": Manuel A. Miranda has this op-ed in today's issue of The Hill.
Posted at 00:12 by Howard Bashman



Monday, June 21, 2004
Elsewhere in Monday's newspapers: The Boston Globe reports that "As e-voting grows, calls for paper trail delay cards' demise."

USA Today reports that "Kobe Bryant trial date may be set this week; Judge, lawyers to discuss whether jurors can ask witnesses questions."

The Los Angeles Times reports that "Bryant Hearings Resume; Today's proceeding to start in open court; Jury instruction regarding consent is among issues." In regional news, "They're Making a Good Case for a Lunchtime Run in Santa Ana; The neighborhoods adjacent to the county courthouse entice midday joggers; Having a locker room and showers available at the courthouse helps, too." And letters to the editor appear under the headings "Thomas' Literal Interpretations"; "Religion vs. the Secular in Pledge and Seal Cases"; and "Demanding Answers About Secret Detention."

Finally, in The Washington Times, Suzanne Fields has an op-ed entitled "One noisy nation, under God." And Nat Hentoff has an op-ed entitled "A government of laws or men?"
Posted at 23:50 by Howard Bashman



"Legal eagle's blog view of Oracle case": This article appears today in The San Francisco Chronicle.
Posted at 23:45 by Howard Bashman



"W. Va. soldier faces hearing on Iraqi prisoner abuse charges; England's photos in Abu Ghraib made her target": The Pittsburgh Post-Gazette today contains this article.
Posted at 23:44 by Howard Bashman



"Public's verdict already in: In the court of public opinion, there's evidence enough to find the Rigases guilty." This article appears today in The Buffalo News.
Posted at 23:38 by Howard Bashman



Poor Teresa Zoltanski: This Denver-area attorney today lost her appeal to the U.S. Court of Appeals for the Tenth Circuit from a $250 fine for ignoring a security screener at Denver International Airport in 1999. In January 2004, The Rocky Mountain News published a report on the matter headlined "Judge critical of case secrecy; Details revealed of $250 DIA fine." You can access the Federal Aviation Administration's ruling in the matter here, and today's Tenth Circuit ruling is accessible at this link. Zoltanski was represented on appeal by Powers Phillips, P.C., the law firm with the best Web site ever.
Posted at 23:30 by Howard Bashman



Available online from law.com: Tony Mauro reports that "Health Insurance Industry Wins Big at Supreme Court." In news from New York, "On Eve of Trial, Lynne Stewart Makes Her Case." And an article is headlined "Lights, Camera and ... Time to Testify; Bringing testimony to life with actors."
Posted at 23:20 by Howard Bashman



Tomorrow's newspapers report on today's U.S. Supreme Court rulings: In Tuesday's edition of The New York Times, Linda Greenhouse will report that "Justices Limit Ability to Sue Health Plans" and "Justices Uphold a Nevada Law Requiring Citizens to Identify Themselves to the Police."

In Tuesday's edition of The Washington Post, Charles Lane will report that "Justices Limit Suits Against HMOs; State Patients' Rights Laws Struck Down" and "Refusing to Give Name a Crime; Supreme Court Upholds Nevada Law Requiring Identification." And in related coverage, "HMOs Welcome Court Ruling."

Tuesday's issue of Financial Times contains an article headlined "Victory for health insurers on state suits." And Slashdot offers a discussion thread entitled "U.S. Supreme Court: Public Anonymity No Right."
Posted at 22:56 by Howard Bashman



The Associated Press is reporting: Gina Holland has an article headlined "Court: U.S. Can Help Foreign Regulators." And in other news, "Judge: Federal Sentencing Unconstitutional."
Posted at 22:34 by Howard Bashman



On this evening's broadcast of NPR's "All Things Considered": The broadcast contained segments entitled "Court Rules on Privacy of Personal Identity" (featuring Nina Totenberg); "High Court Overturns Law Allowing HMO Suits over Coverage"; "Report: U.S. Over-Stated Detainees in Cuba"; "Generals To Be Questioned in Iraqi Abuse Trials"; and "Connecticut Governor To Resign Under Pressure" (Real Player required).
Posted at 19:32 by Howard Bashman



At least Second Circuit Judge Guido Calabresi isn't out picketing President Bush: Last month, the Web site of WNBC-4 in New York City ran a dispatch from The Associated Press, dateline New Haven, that concluded:
As he traveled around New Haven, the president appeared to be suffering no ill effects from a fall from a mountain bike Saturday other than visible minor abrasions and scratches on his chin, upper lip, nose and right hand. He also had minor abrasions and scratches to both knees, the White House said.

The president left Tweed-New Haven Airport in New Haven aboard Air Force One shortly before 7 p.m. First lady Laura Bush was expected to stay at Yale through Tuesday.

About 50 protesters gathered at Levin's home Sunday afternoon. They denounced the president and the war in Iraq, while holding signs saying "Uproot Bush" and "Resist This Endless War."

The crowd was a mix of students and older Yale graduates.

Anne Tyler Calabresi, 69, of Woodbridge, said she was protesting on behalf of herself and her husband, 2nd Circuit Judge Guido Calabresi, a Yale graduate and former dean of the Yale School of Law.

"I'm profoundly worried about the way this country is going," she said. "And I'm furious about the lies George Bush has told to us again and again. He has led us into a war that is destroying our reputation around the world and creating implacable enemies around the world that we didn't have one year ago."
You can access the entire article at this link. (Thanks much to the reader who forwarded this.)
Posted at 19:22 by Howard Bashman



"Supreme Court rules in favor of HMOs in case over patient lawsuits": Stephen Henderson of Knight Ridder Newspapers provides this report.
Posted at 19:10 by Howard Bashman



"Justices Curb Malpractice Lawsuits Against HMOs": David G. Savage of The Los Angeles Times provides this news update.
Posted at 17:58 by Howard Bashman



"Court: If police ask, you must give your name; The high court rules 5 to 4 that officers can arrest people who won't reveal their identity": Warren Richey will have this article in Tuesday's issue of The Christian Science Monitor.
Posted at 17:56 by Howard Bashman



On today's broadcast of NPR's "Talk of the Nation": Today's broadcast included segments entitled "Blogging: A Web Diary Tour" and "Terrorist Web Sites" (Real Player required).
Posted at 17:52 by Howard Bashman



"Connecticut Governor, Facing Impeachment, Resigns": Today's broadcast of NPR's "Day to Day" contained this report (Real Player required).
Posted at 15:12 by Howard Bashman



U.S. Court of Appeals for the Fourth Circuit issues significant digital-era copyright ruling: A divided three-judge panel of the Fourth Circuit issued its ruling today in CoStar Group, Inc. v. LoopNet, Inc. The majority opinion begins:
CoStar Group, Inc. and CoStar Realty Information, Inc. (collectively "CoStar"), a copyright owner of numerous photographs of commercial real estate, commenced this copyright infringement action against LoopNet, Inc., an Internet service provider, for direct infringement under secs. 501 and 106 of the Copyright Act because CoStar's copyrighted photographs were posted by LoopNet's subscribers on LoopNet's website. CoStar contended that the photographs were copied into LoopNet's computer system and that LoopNet therefore was a copier strictly liable for infringement of CoStar's rights under sec. 106, regardless of whether LoopNet's role was passive when the photographs were copied into its system.

Relying on Religious Technology Center v. Netcom On-Line Communications Services, Inc., 907 F. Supp. 1361 (N.D. Cal. 1995), the district court entered summary judgment in favor of LoopNet on the claim of direct infringement under sec. 106. We agree with the district court. Because LoopNet, as an Internet service provider, is simply the owner and manager of a system used by others who are violating CoStar's copyrights and is not an actual duplicator itself, it is not directly liable for copyright infringement. We therefore affirm.
Today's complete decision can be accessed at this link.
Posted at 14:48 by Howard Bashman



Bloggers react to the comments of Second Circuit Judge Guido Calabresi quoted today in The New York Sun: This morning, I linked here to a front page article by Josh Gerstein headlined "Audience Gasps as Judge Likens Election of Bush to Rise of Il Duce; 2nd Circuit's Calabresi Also Compares Bush's Rise to That of Hitler." Thereafter, Law Professors Eugene Volokh and Glenn Reynolds have commented, as has "The Curmudgeonly Clerk."
Posted at 14:45 by Howard Bashman



"Connecticut Governor Plans to Announce Resignation Tonight": The New York Times provides this news update. And The Hartford Courant provides an update headlined "Rowland Will Resign."
Posted at 14:28 by Howard Bashman



What liberal Ninth Circuit? Back in March 2003, a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a majority opinion by Circuit Judge Stephen Reinhardt that begins:
Pursuant to a mandatory condition of Raphyal Crawford's parole, FBI agents entered Crawford's home to conduct a "parole search" on July 27, 2000. The agents conducted the search despite the fact that they expected to find absolutely no evidence of a crime on the premises, because they thought it would help pressure Crawford into talking about his role in an unsolved robbery committed two years before. Less than two hours later, Crawford confessed to participating in the robbery.

We hold that the search of Crawford's home without any reasonable suspicion, although pursuant to a parole condition authorizing such searches, violated the Fourth Amendment. Because Crawford's confession resulted from the suspicionless search of his residence, we reverse the district court's decision denying his motion to suppress and remand to allow him to withdraw his guilty plea.
Thereafter, the Ninth Circuit granted rehearing en banc, and today a much more conservative eleven-judge en banc panel, by a vote of 8-3, ruled that the defendant's confession would be admissible into evidence. You can access today's ruling at this link.
Posted at 13:36 by Howard Bashman



And then there were twelve: The final twelve argued cases in which the U.S. Supreme Court will be announcing rulings before the end of next week are listed here. The Court is next scheduled to issue opinions this Thursday at 10 a.m.
Posted at 11:57 by Howard Bashman



U.S. Court of Appeals for the Eighth Circuit reverses federal trial court's order striking down South Dakota abortion laws: You can access today's ruling, by a unanimous three-judge panel, at this link. The ruling sends the case back to the trial court for further proceedings, in which the laws in question could again be invalidated, but the Eighth Circuit today has ruled that the trial court's original decision was based on a misunderstanding of the record.
Posted at 11:32 by Howard Bashman



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

1. Justice Ruth Bader Ginsburg issued the opinion of the Court in Intel Corp. v. Advanced Micro Devices, Inc., No. 02-572, and the judgment under review was affirmed. You can access the syllabus here; Justice Ginsburg's opinion for the Court, in which the Chief Justice and Justices John Paul Stevens, Anthony M. Kennedy, David H. Souter, and Clarence Thomas joined, here; Justice Antonin Scalia's opinion concurring in the judgment here; Justice Stephen G. Breyer's dissenting opinion here; and the oral argument transcript here.

2. Justice Thomas issued the opinion for a unanimous Court in Aetna Health Inc. v. Davila, No. 02-1845, and the judgment under review was reversed and the case remanded. You can access the syllabus here; Justice Thomas's opinion here; Justice Ginsburg's concurring opinion, in which Justice Breyer joined, here; and the oral argument transcript here.

3. Justice Thomas also issued the opinion of the Court in Pliler v. Ford, No. 03-221, and the judgment under review was vacated and the case remanded. You can access the syllabus here; Justice Thomas's opinion for the Court, in which the Chief Justice and Justices Sandra Day O'Connor, Scalia, and Kennedy joined, here; Justice O'Connor's concurring opinion here; Justice Stevens' opinion concurring in the judgment, in which Justice Souter joined, here; Justice Ginsburg's dissenting opinion, in which Justice Breyer joined, here; Justice Breyer's dissenting opinion here; and the oral argument transcript here.

4. Justice Anthony M. Kennedy issued the opinion of the Court in Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., No. 03-5554, and the judgment under review was affirmed. You can access the syllabus here; Justice Kennedy's opinion for the Court, in which the Chief Justice and Justices O'Connor, Scalia, and Thomas joined, here; Justice Stevens' dissenting opinion here; Justice Breyer's dissenting opinion, in which Justices Souter and Ginsburg joined, here; and the oral argument transcript here.

Anne Gearan of The Associated Press reports that "HMOs Win Supreme Court Malpractice Case." Former D.C. Circuit nominee Miguel A. Estrada represented the HMOs in the Supreme Court. And Gina Holland has a report headlined "Court: No Right to Keep Names From Police."

James Vicini of Reuters reports that "High Court Limits Patient Suits Vs HMOs" and "Top Court Deals Blow to Intel in EU Probe."

Today's Order List can be accessed here. The Court granted review in three cases, two of which are consolidated for purposes of consideration. "SCOTUSblog" has a report on today's cert. grants here.

In news pertaining to cases in which review has been denied, The AP reports "Court Rejects 'Jenny Jones' Case Appeal"; "Court Passes on Calif. Air Pollution Case"; "S.C. Death Row Inmate Loses Appeal"; and "Supreme Court Allows Priest Abuse Suit."
Posted at 10:00 by Howard Bashman



"Questioning of Commanders Allowed in Abu Ghraib Trial; Army Judge Allows Defense Request, Rules Prison Is a Crime Scene": The Washington Post provides this news update.
Posted at 09:55 by Howard Bashman



"Judge Won't Move Abu Ghraib Trials Outside Iraq": Today's broadcast of NPR's "Morning Edition" included this report (Real Player required).
Posted at 09:49 by Howard Bashman



Available from National Review Online: Peter Augustine Lawler has an essay entitled "'Under God' and Meaning It: The Supreme Court should fix past precedent." Andrew C. McCarthy has an essay entitled "Winning and Losing: Justice's job is harder because America is safer." Brett D. Schaefer has an essay entitled "Justice by Fiat: No sovereign state should be forced into a treaty it opposes." And Peter Wood has an essay entitled "Hollywood's New Villain: Diversity's foes are the in-vogue nightmare."
Posted at 09:45 by Howard Bashman



"AP: Conn. Gov. to Announce Resignation." The Associated Press reports here that "Connecticut Gov. John G. Rowland, the subject of investigations into alleged corruption and facing possible impeachment, will announce his resignation Monday night, an administration source told The Associated Press."
Posted at 09:36 by Howard Bashman



"The Case Of The Gradually Disappearing Supreme Court": Stuart Taylor Jr., in today's issue of National Journal, has an essay that begins: "With the retirement of 88-year-old Justice John Paul Stevens today, the Supreme Court's membership dwindled to four." The dateline for the essay is July 1, 2008.
Posted at 09:26 by Howard Bashman



"Audience Gasps as Judge Likens Election of Bush to Rise of Il Duce; 2nd Circuit's Calabresi Also Compares Bush's Rise to That of Hitler": The New York Sun today contains a front page article by Josh Gerstein that begins, "A prominent federal judge has told a conference of liberal lawyers that President Bush’s rise to power was similar to the accession of dictators such as Mussolini and Hitler."

You can learn more about this past weekend's 2004 American Constitution Society National Convention here and here.
Posted at 09:22 by Howard Bashman



I posted this month's "20 questions for the appellate judge" interview overnight: You can access the June 2004 installment of "20 questions for the appellate judge" both here and here.
Posted at 07:22 by Howard Bashman



On the agenda: At 10 a.m. today, the Supreme Court of the United States is scheduled to issue opinions in argued cases and an Order List. The sixteen argued cases that remain to be decided this Term are listed here. The Court is also planning to issue opinions on Thursday of this week and Monday of next week. We probably won't know for sure until later this week whether the Court plans to have all argued cases decided by next Monday or whether one or more additional opinion issuance days will be needed next week. How does one learn such information? Many years of Court-watching doesn't hurt, but the Opinion Announcement Line is also quite a good source of news.
Posted at 07:14 by Howard Bashman



"Lawyer: Akbar's mental state key; Army's treatment of Muslim soldier will get attention." This article appears today in The Courier-Journal of Louisville, Kentucky. And a related article reports that "Grenade attack had 'military precision.'"
Posted at 07:10 by Howard Bashman



In today's issue of The Sacramento Bee: Today's newspaper contains articles headlined "Gay marriage roils a key battleground" and "Quest for justice: Treaty with Mexico shields suspect in dad's death."
Posted at 07:07 by Howard Bashman



The Chicago Tribune is reporting: Today's newspaper contains articles headlined "Gays' breakups raise legal conflicts; Custody, visitation, assets are issues" and "Zoning, worship often at odds; Minority faiths, new churches hit hard, experts say."
Posted at 07:04 by Howard Bashman



In Monday's newspapers: The New York Times reports that "Lawyer, and Her Methods, Are on Trial." In other news, "Inmates Use Smuggled Cellphones to Maintain a Foot on the Outside." In news from California, "Starting Over, 24 Years After a Wrongful Conviction." And columnist Bob Herbert has an op-ed entitled "Malpractice Myths."

The Washington Post reports that "Prosecutors to Seek Charges Against Lay; Enron's Former Chairman to Face Indictment for Role in Promoting Stock Sale." And columnist William Raspberry has an op-ed entitled "Understanding Their Fears."
Posted at 06:30 by Howard Bashman



"Judge: Abu Ghraib a crime scene." CNN.com offers an article that begins, "The military judge in the Abu Ghraib prison abuse scandal has declared the jail site a crime scene and ordered that it not be destroyed for the duration of the trial."
Posted at 06:24 by Howard Bashman



20 Questions for Justice William W. Bedsworth of the California Court of Appeal for the Fourth Appellate District, Division Three: "How Appealing" is so very pleased that Justice William W. Bedsworth of the California Court of Appeal for the Fourth Appellate District, Division Three, has agreed to participate in this Web log's monthly feature, "20 Questions for the Appellate Judge."

Justice Bedsworth was born in Long Beach, California in November 1947. He earned his bachelor's degree cum laude from Loyola University of Los Angeles in 1968 and his law degree from the University of California at Berkeley (Boalt Hall) in 1971. Following law school, Bedsworth joined the Orange County District Attorney's Office, where he served as a line deputy, felony trial deputy, appellate attorney, and finally as managing attorney in charge of the office's appellate division. While serving as a prosecutor, he was twice chosen as president of the Association of Orange County Deputy District Attorneys and twice elected to the Board of Directors of the Orange County Bar Association.

In 1986, Bedsworth was elected to fill an open seat as a trial judge on the Orange County Superior Court. He was reelected in 1992. In February 1997, Governor Pete Wilson appointed Bedsworth to the California Court of Appeal. Voters retained Justice Bedsworth in 1998 for a term that will expire in 2010.

Justice Bedsworth's always very funny monthly column, "A Criminal Waste of Space," appears in over a dozen publications. American Lawyer Media has just published a collection of those essays in a book titled "A Criminal Waste of Time," making Bedsworth the author of two books. And if all that were not enough to keep one person fully occupied, Justice Bedsworth also serves as a National Hockey League goal judge at all Mighty Ducks home games and at selected road playoff games.

Questions appear below in italics, and Justice Bedsworth's responses follow in plain text.

1. You first came to my attention as a result of your wonderfully entertaining monthly column, "A Criminal Waste of Space," published in the Orange County Lawyer Magazine and now syndicated nationwide via American Lawyer Media. When did you begin the column, and, beyond your tagline of "He writes this column to get it out of his system," perhaps you can explain more fully why you began the column and have continued to write it? Has the success of your column come as a surprise to you? Do you feel any pressure to make your opinions as entertaining as your columns (or vice versa)? Finally, does it cause you any concern that you may be better known nationwide due to your hobby as a columnist than because of your day job as an appellate judge?

Thank you for the kind words. I really do write the column to "get it out of my system." I've always enjoyed making people laugh, and it's become a big part of my ego support system, but I've chosen professions that don't allow for much laughter, so the column serves as a safety valve. It keeps me from writing, "Your $3 million judgment is reversed, but did you hear the one about the nun and the rabbi and the parrot?" If you keep that in mind, it's less surprising that my opinions are rarely intentionally funny, something I hear remarked upon often.

I've been writing the column since 1981. It helped get me elected to the bench after I turned out to be way too conservative for an appointment by democrat governor Jerry Brown and then way too liberal for appointment by republican governor George Deukmejian. A lot of local lawyers I'd never met told me they supported my election because they were willing to take their chances with me after reading the column.

Governor Pete Wilson's appointments secretary asked for a copy of my first book while I was under consideration for this job, and later told me he enjoyed it. And I've met a lot of very nice people through the column. So, while it sometimes bothers me, it would be churlish to gripe that people think of me more as the guy who writes the column than the guy who wrote the gay jurors opinion or the lawyer malpractice opinion or any of the others I’m proudest of.

And yes, its success surprises me. Every month.

2. What qualifications must someone possess to serve as an NHL goal judge, when did you first become involved in the sport of hockey and begin serving as an NHL goal judge, and how many games do you typically work during the NHL regular and post seasons? In what ways do you wish your work as an appellate judge was more like your work as a goal judge, and in what ways do you wish that your work as a goal judge was more like your work as an appellate judge?

The goal judge job is a lot like my day job: You're expected to start out perfect and then improve with experience.

Judging is judging. Both jobs require me to show up, pay attention, and give my opinion. The main difference is that if I make a mistake in an opinion, the Supreme Court lets me know about it a couple of years later, and only a small number of colleagues and practitioners know about it (Supreme Court reversals do not include the names of the appellate panel); if I make a mistake at a hockey game, videotape replay determines it immediately and it is announced via loudspeaker to 16,000 beer-drinking fans.

3. Would hockey fans be correct in thinking -- in an age of four on-ice officials, instant replay, a replay official, and cameras in the goal -- that technology already has or is about to make the position of goal judge obsolete? And on a related note, in your letter opposing proposed Federal Rule of Appellate Procedure 32.1, you were critical of lawyers who would substitute technological skill for good, old-fashioned legal reasoning. Do you foresee a time when technology might likewise threaten to make appellate judges obsolete, and what are your concerns and/or predictions in that regard?

Wow, that's a lot of ground to cover in one answer. The goal judge's job is already obsolete. The on-ice officials and videotape replay can do it 99% of the time. The only reason it still exists is political: America has already hijacked the NHL from the Canadians (Winnipeg and Quebec City lost franchises they supported handsomely to Denver and Phoenix, and the western Canadian teams are hanging on by their financial fingernails), and they're understandably touchy about any changes made in "their game." Tradition includes goal judges, so the NHL includes goal judges. But probably not for long.

The second half of your question defies segue, so let me just say my position on FRAP 32.1 was not a Luddite one. I am very much in favor of technological skill in advocacy and technological advancements have made my research much easier and -- I hope -- much more complete.

What I am opposed to is a system in which there are literally hundreds of citable opinions on any issue, and attorneys and judges are reduced to searching all of them -- and presumably billing their clients for that search -- for the one that is "on all fours," rather than finding the best-reasoned opinions from a much smaller sample, and explaining to a judge why they're the best reasoned, why the differences between them and the instant case should not be determinative, and why the result of their application is wise and just. I feel the system is better served if there are five citable opinions and all the parties have time to analyze and consider them, than if there are 105 and all we argue about is which ones are closest to being exactly the same.

Reasonable minds will differ.

4. There was a time when California's state courts were perceived throughout the Nation as a source for wacky legal rulings, in the same way that some today perceive the U.S. Court of Appeals for the Ninth Circuit. Based on your more recent experiences traveling outside of California, have you found that California's state appellate courts are today perceived more favorably than they once were, and if so to what do you attribute that change in perception?

Plaintiff's "wacky" is often defendant's "visionary." That hasn't changed. It's largely a matter of whose ox is being gored. But when I spoke in Alabama a few years ago, I told them I recognized it as an historic occasion. It was, I am reasonably sure, the first time anyone from Alabama had ever asked anyone from California for his opinion about anything.

5. Division Three of the Fourth Appellate District has been called the most liberal Court of Appeal in California. What was it like for you, a former prosecutor appointed to that court by a Republican governor, to join an appellate court that had been dominated by appointees of Governor Jerry Brown? And do you think that the press and the public have an inaccurate understanding of the role that politics plays in the decisionmaking process of an appellate court, and if so what role does politics play, and what role should it play?

The more I try to deal with these questions, the more impressed I am that your earlier interviewees were able to be so concise. I'm not.

I guess the best way to answer your question is to tell you that my two best friends on this court in my first five years were Dave Sills (a moderate Republican once married to Maureen Reagan) and Tom Crosby (a fire-breathing liberal whose depth of commitment made Bill Douglas look wishy-washy). We sat on at least a dozen cases a month together and in five years I ended up on the opposite side from Crosby ten times and on the opposite side from Sills eleven times. And my most recent reversal by the state Supreme Court was a premises liability case in which I wrote an opinion in which a democrat sided with me enthusiastically and Sills wrote what the pundits like to call a "stinging dissent." Regardless of personal politics, our job is to determine what the law is, not what we want it to be.

While we have a long history in this country of making fun of legislators, they have access to a lot of expert opinion, they generally try hard, and most of what they do makes sense -- regardless of your politics. So the political makeup of a panel at the intermediate appellate level is seldom critical. The reason that seems counter-intuitive is that the occasions when it is critical tend to be spectacular.

6. Division Two of the Fourth District has received nearly uniform raves for its practice of issuing tentative opinions before cases are argued. What are the pros and cons of this practice as you see them, why has Division Three, on which you serve, not adopted the practice yet, and do you think that Division Three should or will adopt the practice?

It would be inappropriate for me to comment on the administrative procedures of another court. They have developed a unique system. Having never appeared in or sat on their court, I would be among those least qualified to comment on it.

7. Under California law, parties on appeal are entitled to oral argument as a matter of right. As an original matter, would you prefer a system in which the litigants determine their own entitlement to oral argument or in which the decision whether to argue a case resides with the judges assigned to decide the case, and why? Also, in what percentage of cases do you find oral argument helpful to the decisionmaking process, and in what percentage of cases has oral argument caused you to change your vote on the outcome of an appeal?

Oral argument is the hardest and least productive part of my month, and if I were left to apportion it out, I'd likely deny it to some parties who should have it. "The spirit is willing, but the flesh is weak." So the parties should decide whether they want argument. (See, People v. Pena (2004) 32 Cal.4th 389 [right of appellate litigants to argue].)

And, at the risk of being branded a quisling by my colleagues, I strongly advise against waiver of oral argument unless you're just flat out no good at it. I can't give you a percentage, but I know there are a lot of cases (keep in mind, I hear 30 a month) in which oral argument changes the outcome. It may not be a reversal-to-affirmance change. It may be something less significant. But after all the work you've put into getting to the Court of Appeal, even a small victory is better than none at all.

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

Benjamin Curtis has been lost in the history of the United States Supreme Court because he was there only a short time (1851-1857) and wrote nothing historic.¹ But I can't think of any jurist whose record I consider more admirable. He not only dissented from the Dred Scott opinion, but felt so strongly about the injustice of the opinion that he resigned from the court. That redefines "strength of character" in my book. A decade after leaving the Court, he served as defense counsel at Andrew Johnson's impeachment trial, another job ill suited to the faint of heart.

This is a guy who clearly did what he thought was right and let the devil take the hindmost. I'd be prouder of either of those actions than anything I could write.

9. How would you describe the typical quality of the appellate briefs that you receive, and what advice do you have for lawyers on how to improve their briefs and make them more useful to the court?

The "typical" quality of the briefs I receive is good. I put "typical" in quotation marks because the quality varies so much in civil cases that it's hard to generalize. In criminal cases, both sides are represented by appellate lawyers: the Attorney General's staff and -- usually -- our appointed appellate panel, so the quality is pretty uniform. But in civil cases, we get work that runs the gamut from brilliant to wholly inadequate. And since my civil background has been developed entirely as a bench officer, those latter are very hard for me to deal with effectively.

10. The California Board of Legal Specialization is authorized to certify lawyers as "appellate specialists." In your experience, is the appellate work of lawyers who have qualified as certified appellate specialists superior to the work of lawyers who have not so qualified? And, more broadly, what is the purpose of allowing such a specialization, and do you believe the purpose is being achieved?

Our state's certification process for appellate specialists is meant to address the concerns voiced above. Any lawyer should be able to write an adequate brief. But just as you would expect an antitrust specialist to handle antitrust issues better than a probate lawyer, you expect appellate specialists to write generally better briefs than non-specialists. And, they tend not to misstate the standard of review or miss deadlines. I'm generally in favor of specialization for professionals, although I've seen brilliant briefing and advocacy by non-specialists.

11. How would you describe your own judicial philosophy? And would it trouble you more to apply a rule that you believe is generally just but that in the case before you produces an unjust result or to apply a rule that you believe is generally unjust but that produces a result in the case before you that you believe to be correct?

I wasn't elected to make laws and I wasn't elected to pass on their wisdom.² My job is just to figure out what they say and decide whether that violates a constitution. If I had wanted to change the laws or make the world a better place, I could have run for the legislature. Having not done so, my ability to change what they do is limited to lobbying and grousing. If I forget that, I violate the trust reposed in me and I make myself and everyone else very unhappy.

I believe the law rarely leads to an unjust result if properly applied. If my analysis of the law leads me to an unjust result, I go back to square one and try to make sure I didn't do something wrong in interpreting or applying it. If it's still unjust, I have a responsibility to say so in my opinion, but I cannot change the holding. I don't get to change the law just to arrive at what I perceive to be a good result in an individual case. I hate it when that happens, but I'm paid well to swallow hard and follow the law.

12. What opinion or opinions that you have written as an appellate judge do you find most memorable? And what is your track record in cases where you have written an opinion and the Supreme Court of California has granted review, and what if anything does that track record reveal?

I'm not sure what my track record is in our Supreme Court and would consider it a waste of time to find out. Offhand, I can think of two I won and three I lost, but those only come to mind because they were cases I cared a lot about; I'm sure there have been others I'm not recalling.

I'm in an intermediate court of appeal. I take my best shot at getting it right and move on. If I start worrying about whether our Supreme Court will agree with me, I not only complicate my work, I pollute it. Wilt Chamberlain was quite proud of never having fouled out of a game. Having watched -- and rooted for -- Wilt, I can tell you that once he got five fouls, he was useless defensively because he was less interested in winning than he was in not fouling out. Like Wilt, if I worry too much about being whistled down, I fail to do my job.

While I hate to make mistakes that cost the state and the parties time, money, and energy, I'm paid for my opinion. And if I don't give it -- if I start worrying about whether the Supreme Court will agree or disagree -- I short-change the people who entrusted this job to me.

Besides, as Tom Crosby used to say, "All my best work gets reversed." I'm especially proud of a case I wrote five years ago, defending the right of the court to control the grand jury. But the prevailing party imprudently argued it to the California Supreme Court as a case extending the right of the press to access to grand jury information and it was reversed. If you try to anticipate and prevent that kind of thing, you'll lose your mind.

In addition to that opinion and the recent premises liability reversal mentioned above, I am probably proudest of my opinions in People v. Garcia (2000) 77 Cal.App.4th 1269 [gay or lesbian jurors constitute a cognizable class whose exclusion from the jury venire resulted in a jury which failed to represent a cross section of the community] which prompted a change in California law (See Code of Civil Procedure § 204; "It is the intent of the legislature to codify the decision in People v. Garcia") and People v. Perez (1998) 30 Cal.App.4th 900, which included a footnote I'm told has kept a lot of people with Hispanic surnames from being unjustly incarcerated.

I'm not in the job to leave a legacy; I just want to get as many as possible right. I don't publish much because I believe we already have so many cases on the books as to make the law unwieldy. But every so often you turn out something requiring publication that you're particularly fond of for one reason or another. "A small thing, but mine own."

13. What qualities do you look for in deciding whom to hire as a law clerk, and what qualities or traits other than a strong academic background are important to you?

Our research attorneys are not newly minted lawyers, but career employees. That's one of the strengths of California's system. When I have a question about the real world consequences of an opinion I've written in an area of the law I did not practice in, I can usually find a staff lawyer with the background to help me. The lawyers primarily responsible for educating me include one who was a successful civil litigator for a dozen years, one who taught law at Wake Forest and USF, and a former law review editor who was a criminal practitioner for seven years. My hope is that I won't have to hire any others because these three are dynamite.

We bring aboard volunteer externs from law schools year-round. The primary criteria are good grades and an impressive writing sample.

14. Notwithstanding your opposition and the opposition of many other judges and lawyers based within the geographical boundaries of the U.S. Court of Appeals for the Ninth Circuit, the Advisory Committee on Appellate Rules of the U.S. Courts voted 7–2 in favor of a proposal that would allow citation of non–precedential rulings to all U.S. Courts of Appeals. Did the committee's action, or the margin of the outcome, surprise you, and if so why? Don't the uniformly positive experiences of those federal appellate courts that have already been following the proposed rule demonstrate that concerns about the rule are overblown? And what role if any did Ninth Circuit Judge Alex Kozinski play in recruiting you to write in opposition to the proposed rule?

I was not surprised by the vote on Proposed FRAP 32.1. I don't have enough information about what's going on in the federal courts to be surprised. As for Alex Kozinski's role in my involvement, if you see your neighbor trying to put out a fire, your instinct is to reach for a hose. I reached for a hose.

15. On a somewhat related note, how did you achieve the good fortune of having Judge Kozinski write the introduction to your new book, how are sales of the book going, and is the book available for purchase at bookstores or is it only offered for sale online via law.com?

The book -- thank you for asking -- is going well, at least by my standards, which pretty much boil down to having someone who does not share my surname read it. It can be purchased at Amazon, though they swallow up a lot of the profits, or online at law.com. We should be getting it into some law school bookstores in the near future.

Alex Kozinski wrote the foreword because I asked him to. Although I've never met him, he seems to be a very nice man.

16. You have served as both a trial court and an appellate court judge. What aspects of each judgeship did you find preferable? And if the President of the United States were to call and offer you the choice between being nominated to serve on the federal district court or the U.S. Court of Appeals for the Ninth Circuit, which job would you prefer, and why?

I loved being a trial court judge. In exchange for calling "safe" and "out" occasionally, I got to watch some great ballgames for free. I got to associate with lawyers on a regular basis and I got to do work I thought was important. That's a good deal. And I thought I was good at it, which is critical to job satisfaction.

But the job of an intermediate appellate court officer is absolutely the best one in the system -- especially if you like to write. You have time to wrestle with the really difficult issues and staff to help you. You don't have a jury waiting in the hallway while you try to pull legal rabbits out of factual hats in twenty minutes or less. And you have two colleagues working with you on every case and a state Supreme Court acting as your backstop so you don't have to chase down every ball you miss.

You're apparently the only person interested in me for federal court. Which is just as well. At my age, I couldn't hack the learning curve.

So I'm here for the duration; they'll have to hire someone to haul me away.

17. Speaking of the Ninth Circuit, what is your view on whether that federal appellate court is too large and therefore should be divided into two or more smaller circuits? And what are your views on a proposed division of the Ninth Circuit that would put northern California under the jurisdiction of a different federal appellate court from southern California?

As a general rule, northern Californians are in favor of anything that will separate them -- physically, emotionally, procedurally, substantively, or metaphysically -- from southern Californians. Those of us down here in socal don't feel that way. I'm no exception. I don't see a need for breaking up the Ninth Circuit, but -- inexplicably -- you're the only person who seems to care how I feel about it.

18. Prosecutors often remark that sometimes their worst enemy on the appellate bench is an ex-prosecutor. (The "we never did it like that when I was a D.A. syndrome.") What do you think of this adage?

I was a prosecutor for 15 years. I turned down offers to go into criminal defense work because prosecution was all I wanted to do. For one thing, the job description was miraculously simple: Give the guy a fair trial. That's it. That's the whole job. Not conviction, not maximum sentence, not re-writing the Penal Code. Just giving people fair trials.

Prosecutors who remember that greatly enjoy their jobs. They never have to argue anything they don't believe in,³ they get to work with great people and do important work, and they have time to spend with their families. Prosecutors who forget it, who don't trust the system and feel the need to "bend" the rules for the "greater good" find out that the adage you quote is absolutely correct: ex-prosecutors are their worst enemies. We know cheating when we see it, we see through the excuses for it, and we know how great is its potential to pollute the system. Nothing in my job disturbs me more than a well-founded prosecutorial misconduct argument. I'm fortunate to work in a jurisdiction where I don't see many of them.

19. You may be the very first, and still the only, federal or state appellate judge to have his or her own Web log. How did you decide to become a blogger, and what is your relationship with the law firm that hosts the site? Do you anticipate that someday you might use the site as something other than merely a place to post your monthly column? Finally, do you regularly read any blogs, and if so which ones?

My relationship with J. Craig Williams, who hosts his own web log (www.mayitpleasethecourt.net), is that he is a very good friend who now hosts my blog, and is featured prominently on my conflicts list. Craig introduced me to blogging, and, though I can't spend as much time as I'd like on blogs other than his and yours, it's absolutely staggering how many people do. I get more response from any mention of me in blogs than I do from my paper-published material. If I win the lottery and can retire, I plan to do a lot more blogging.

20. What do you do for enjoyment and/or relaxation in your spare time (assuming you indeed have any)?

Spare time? Not a concept I'm familiar with.

I've been an NHL goal judge for 11 years. That’s about 160 hours a year (Imagine what you'd do with an extra four work-weeks). The column and the production of training videotapes for police officers (essentially, "How NOT to Violate the Law") require a great deal of time. I love golf, softball, and country music and don't have the discipline to cut down on any of them.

I have a sixteen-year-old daughter who is more fun than anybody should be allowed, and two grown children who, like the youngest, cause me to use up a lot of time thinking proud thoughts. And I have a nonpareil wife who shares virtually all my enthusiasms (except fantasy baseball, which she refers to as "baseball porn") including the law. She's an excellent attorney and a better friend.

----------------------------------------------------

1. With the possible exception of Cooley v. Board of Wardens (1852) 53 US 299.

2. Under California’s system, after I was appointed, I stood for election.

3. Think about that. They NEVER have to argue anything they don't believe in. How many other lawyers can say that?
Posted at 00:00 by Howard Bashman



Sunday, June 20, 2004
"Judicial Nominee Practiced Law Without License in Utah": Monday's edition of The Washington Post will contain a front page article that begins:
Thomas B. Griffith, President Bush's nominee for the federal appeals court in Washington, has been practicing law in Utah without a state law license for the past four years, according to Utah state officials.

Griffith, the general counsel for Brigham Young University since August 2000, had previously failed to renew his law license in Washington for three years while he was a lawyer based in the District. It was a mistake he attributed to an oversight by his law firm's staff. But that lapse in his D.C. license, reported earlier this month by The Washington Post, subsequently prevented Griffith from receiving a law license in Utah when he moved there.

Under Utah law, Griffith's only option for obtaining the state license was to take and pass the state bar exam, an arduous test that lawyers try to take only once. He applied to sit for the exam, but never took it, Utah bar officials confirm.

Utah State Bar rules require all lawyers practicing law in the state to have a Utah law license. There is no general exception for general counsels or corporate counsels. Lawyers who practice only federal law or whose work is solely administrative can avoid the requirement in some cases.
According to the article, Thomas B. Griffith's Senate Judiciary Committee confirmation hearing to serve on the U.S. Court of Appeals for the D.C. Circuit will occur this upcoming week.
Posted at 23:19 by Howard Bashman



In Monday's edition of The New York Times: An article will report that "U.S. Said to Overstate Value of Guantanamo Detainees." And Michael A. Newdow will have an op-ed entitled "Pledging Allegiance to My Daughter."
Posted at 23:17 by Howard Bashman



The San Francisco Chronicle is reporting: Today's newspaper contains articles headlined "Court-martial's quirks designed especially for armed forces' needs; Military justice puts more power in commanding officer's hands" and "Jokes fall flat with victim's family; But Geragos' wisecracks bring laughs from others."
Posted at 23:10 by Howard Bashman



"Ex-CMU art prof entangled with Feds": This article appears today in The Pittsburgh Post-Gazette.
Posted at 23:00 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Frist: Judges Forcing Gay Marriage Debate" and "770 Specialists Discharged for Being Gay."
Posted at 22:53 by Howard Bashman



In Sunday's newspapers: The Washington Post reports that "Foes Confounded by Limited Outcry Against Gay Marriage." In other news, "Letter by Oken Condemns Justice System; Killer Wrote Md. Governor A Week Before Execution." In related news, "A Big-Picture Thinker on the Federal Bench; Ruling Granting Md. Killer Stay of Execution Shows What Lawyers Say Is Readiness to Make Broad Point." In business news, "Prosecutors to Seek Charges Against Lay; Enron's Former Chairman to Face Indictment for Role in Promoting Stock Sale." An article reports that "Hard Work, Serendipity Paid Off For Trailblazing Female Reporter." And Kathleen Clark and Julie Mertus have an op-ed entitled "Torturing the Law: The Justice Department's Legal Contortions on Interrogation."

The New York Times reports that "After Enron, a Sunless Year in a Tiny Cell." An article is headlined "The Army and Torture: What the Rule Book Says." In other news, "Peterson Judge to Subpoena Videotape of Juror Remark." An article is headlined "New Trend Before Grand Juries: Meet the Accused." In news from overseas, "Verdict in Russian Courts: Guilty Until Proven Guilty." And a letter to the editor appears under the heading "Texas Admissions Plan."

The Boston Globe contains an article headlined "Newest suspect in rapes: the DNA; 'John Doe' indicted to keep cases open." In other news, "Tribe plans appeal; Nipmucs object to a US decision." And columnist Eileen McNamara has an op-ed entitled "The face of justice."

The Los Angeles Times contains articles from The Associated Press headlined "World Court Gearing Up and Biding Its Time; U.N.-sanctioned body will handle complaints of mass murder, rape and abductions, but only from nations who accept its authority" and "Up Next for Fairy-Tale Lovers -- Sentencing; The pair plead guilty to bank robbery, with one agreeing to testify against the other; Last year, they maintained their undying love." In local news, "Ailing Inmate Was Free but Never Made It Home." An editorial is entitled "A Pledge That Divides." And Gerald Shargel has an op-ed entitled "Sheik's Lawyer Fights Guilt by Association; Rosenberg case shadows trial."

Finally, The Washington Times contains an op-ed entitled "New mottos for a PC time" by Benjamin P. Tyree.
Posted at 22:04 by Howard Bashman



In news from Utah: The Salt Lake Tribune reports today that "Hatch aims to allow states to rule on marriage issue." And The Deseret Morning News today contains an article headlined "The tricky business of judging the judges."
Posted at 11:42 by Howard Bashman



"Terror suspects' lawyers cry foul": This article appears today in The Atlanta Journal-Constitution.
Posted at 11:31 by Howard Bashman



"Affirmative Action: The Future." The Detroit News today publishes a collection of four articles under that heading. The articles are headlined "A year later, universities face legal, social barriers; Declining enrollment, minority recruitment test Mich. colleges"; "Poll suggests slim majority of Michiganders favors anti-affirmative action proposal"; "Potential students face tedious admissions process"; and "Where are they now? Key players in the U-M affirmative action case."
Posted at 11:27 by Howard Bashman



The Los Angeles Times is reporting: In today's newspaper, Henry Weinstein reports that "High Court Asked to Intervene in Case It Has Already Decided; Death row inmate's lawyers say appellate judges didn't heed sufficiently an order to review their client's claim of racial bias." And in other news, "Major Reversal in Gay Rights Looms in Virginia; A bill that becomes law in July could dissolve contracts, such as wills, leases and child-custody arrangements, between same-sex couples."
Posted at 11:23 by Howard Bashman



"Cornyn carries the Senate ball for Bush, cultural conservatives": The Houston Chronicle today contains this article, along with a related article headlined "Senator ignored his friends' advice to stay out of politics."
Posted at 08:10 by Howard Bashman



"Free-speech issues bared by worker's sex website; A police communications supervisor's involvement in a sex website has raised eyebrows -- and constitutional questions": This article appears today in The Miami Herald.
Posted at 08:00 by Howard Bashman



"A head start on renaming our fair city": Kimit Muston has this op-ed today in The Los Angeles Daily News.
Posted at 07:54 by Howard Bashman



"Michigan nominees finally overcome revenge, receive deserved hearings": Detroit News columnist George Weeks today has this essay in that newspaper.
Posted at 07:50 by Howard Bashman



Saturday, June 19, 2004
Elsewhere in yesterday's and today's newspapers: The Boston Globe today contains an article headlined "Their first trial: getting there; Law school grads taking the state bar exam face July convention crush." And in other news, "Senate GOP speeds vote on marriage amendment."

The Los Angeles Times today reports that "Connecticut Governor Must Testify; The state high court orders him to answer to a legislative panel weighing impeachment." An article is headlined "Unveiling the Face of the Prison Scandal: Chuck Graner, accused of leading the abuse of Iraqi prisoners at Abu Ghraib, was a polite boy; Only in adulthood did troubling signs appear." In other news, "Prosecutors Decide Against DNA Retesting; They say they want to avoid a further delay in the start of Bryant's trial in sexual assault case." An article reports that "Blake Lawyer Says He Might Not Be Ready; The actor's fourth attorney wants to try case this fall but may need more prep time." And letters to the editor appear under the heading "Taking 'God' Out of the Pledge."

In yesterday's issue of The LA Times, an article reports that "O.C. Gang-Rape Trial Testimony Ends With Experts; In a case against three young men, rebuttal witnesses address core issues, such as whether the alleged victim had been unconscious." In other news, "Holdout Jurors Can Put Legal System to the Test." In news relating to the war on terror, "Secrecy a Tool in Post-9/11 Case; The U.S. fights release of a Saudi living in San Diego County, citing old misdemeanors and shielded information" and "U.S. Charges Contractor Over Beating of Afghan Detainee; The man died in his cell; The case is the first prosecution of a civilian in the abuse scandal." And in news from the Kobe Bryant case, "Judge Allows Both Sides to View Text Messages."
Posted at 23:14 by Howard Bashman



"Doctor's Testimony Leads to a Complex Legal Fight": Adam Liptak will have this article in Sunday's edition of The New York Times.
Posted at 22:55 by Howard Bashman



"Justice hopeful retracts claim; Brantley never got federal nomination": The Atlanta Journal-Constitution contains this article.
Posted at 16:25 by Howard Bashman



"Judge will stay on Edwards case": This article appears today in The Advocate of Baton Rouge, Louisiana.
Posted at 16:24 by Howard Bashman



"Ruling upholds 'One Florida'; An appeals court rejects opposition to the state's ban on race-based college admissions": The Orlando Sentinel today contains this report.
Posted at 16:22 by Howard Bashman



"Fur flies in these custody battles; An increasing number of divorcing couples are fighting like cats and dogs over cherished pets": This article appears today in The Chicago Tribune.
Posted at 16:04 by Howard Bashman



Sweet sixteen: Thanks to the Medill School of Journalism at Northwestern University, you can access here a list of the sixteen argued cases in which the U.S. Supreme Court will be issuing opinions during the next two weeks. Opinions will next issue on Monday, June 21, 2004.
Posted at 16:01 by Howard Bashman



In yesterday's and today's newspapers: The New York Times reports today that "Rowland Ordered to Testify Before Impeachment Committee." In other news, "Chief White House Lawyer Gives Testimony in Leak Case." In local news, "Bowing to an Extradition Deal, U.S. Will Forgo Death Penalty." And an article is headlined "A Man of Violence, or Just '110 Percent' Gung-Ho?"

In Friday's newspaper, The NYTimes reported that "Eight Diverse Gay Couples Join to Fight Massachusetts." In other news, "Florida Reports Progress in Reinfranchising Felons." In news relating to the war on terror, "Rumsfeld Admits He Told Jailers to Keep Detainee in Iraq Out of Red Cross View" and "Contractor Indicted in Afghan Detainee's Beating." In business news, "Archer Daniels Said to Settle Sweetener Price-Fixing Case" and "Grasso Moves to Shift Lawsuit to Federal Court." And in regional news, "Rowland Lawyers Attack Impeachment Inquiry Witnesses."

The Washington Post reports today that "Death Penalty Deliberations Tore Malvo Jury Apart." In other news, "Bush Aide Testifies in Leak Probe; Gonzales Appears Before Grand Jury." An article reports that "Vermont Episcopalians' Liturgy for Civil Unions Upsets Conservatives; Similarity to Wedding at Issue." In regional news, "A Shorter Line on Death Row; Pr. George's Man May Be Months From Execution Date." An editorial is entitled "Steven Oken's Death." Ellen Goodman has an op-ed entitled "One Child Indivisible." And letters to the editor appear under the headings "Sentencing Rules Too Strict" and "Anything but Gray."

In Friday's newspaper, The Washington Post reported that "Moussaoui Judge Expected Statements to Stay Classified." In other news relating to the war on terror, "Patriot Act Provision Invoked, Memo Says; FBI Request Came Weeks After Ashcroft Denied Using Controversial Part of Law"; "GOP Senators Block Subpoena on Memos but Prod White House"; and "Civilian Charged In Beating of Afghan Detainee." In regional news, "Maryland Executes Oken; 1987 Rampage in 2 States Left 3 Women Dead" and "Powerful Feelings Converge on Oken; Execution Supporters, Death Penalty Foes Gather Outside Md. Prison." A front page article is headlined "How 'Don't Tell' Translates; The Military Needs Linguists, But It Doesn't Want This One." In business news, "Chairman Trusted Adelphia's Stewards, Attorney Tells Jury; John J. Rigas Portrayed as Unaware" and "Grasso Wants Suit Moved To U.S. Court." And letters to the editor appear under the headings "Late Dues: 'Innocent Oversight'" and "Seeking Justice In and Out of the Courtroom."

Friday's edition of The Christian Science Monitor contained an editorial entitled "The Mystique of Blind Justice."

Online at OpinionJournal, Third Circuit Judge Michael Chertoff today has an essay entitled "Why Is This Ball in Our Court? Judges can't be expected to set antiterror policy." And yesterday, Daniel Henninger had an essay entitled "Why the Pledge Matters: 'Under God' is the firm link to U.S. security."
Posted at 10:50 by Howard Bashman



Only two "20 questions for the appellate judge" interview opportunities remain available for 2004: My most recent solicitation for interviewees has produced a volunteer serving on the Supreme Court of Appeals of West Virginia whose interview will appear either in November or December of this year (remaining details to be finalized and announced soon). The next available interview for which I need a volunteer is to be published on the first Monday of August 2004, with the written interview process to occur in the second half of July 2004. In order to volunteer, a federal or state court appellate judge need only send a quick email expressing interest, a process that can be initiated by clicking here.
Posted at 10:33 by Howard Bashman



"ACLU reacts to Mount McCoy cross sale": The Ventura County Star today contains an article that begins, "The Park District finalized a deal earlier this week to sell a small plot of land surrounding Simi Valley's Mount McCoy cross, despite a warning from the American Civil Liberties Union. The final approval of the $2,000 sale of the parcel and 12-foot high, concrete crucifix to the Simi Valley Historical Society and Museum didn't put to rest ACLU's concerns."
Posted at 10:30 by Howard Bashman



The San Francisco Chronicle is reporting: In today's newspaper, Bob Egelko reports that "Review of pot club cases ordered; 9th Circuit says patients' rights protected by ruling" and "Financier indicted on charges of molesting kids in Thailand, Mexico." In other news, "Sex offender rearrested -- faces life; Carey Verse misses 90-day deadline to register with cops." An article reports that "Prisons to reform solitary confinement rules; Suit by inmate isolated for 10 years results in 'up-front due process.'" In news from the Scott Peterson trial, "Judge asks for tape of juror's conversation; Man chatted with victim's brother on way into court." In news from Washington, DC, "GOP senators pick date to debate amendment." And on Thursday, Bob Egelko reported that "U.S. appeals court reviews first medical pot conviction; Congress' power over marijuana club case at issue."
Posted at 10:10 by Howard Bashman



"Court Affirms Subpoena; Rowland Not Shielded From Testifying, Justices Rule": The Hartford Courant today provides this report.
Posted at 10:05 by Howard Bashman



"Appeals court: Arizona abortion clinic regulations unconstitutional." This article appears today in The Arizona Daily Sun.
Posted at 10:00 by Howard Bashman



Friday, June 18, 2004
The Associated Press is reporting: David Kravets has an article headlined "Court: Ariz. Abortion Bill Invades Privacy." In other news, "White House Lawyer Questioned in CIA Leak"; "Judge Orders Moussaoui Tape Preserved"; "Couples, Clerks Challenge 1913 Mass. Law"; and "Prosecutors Want Birmingham Rudolph Trial."
Posted at 23:00 by Howard Bashman



"Homicide count OK for fetus; Kentucky court backs charges if unborn child is called viable": This article appears today in The Louisville Courier-Journal. And The Lexington Herald-Leader today reports that "Viable fetus is a person, court says; State ruling applies to homicide law." You can access yesterday's ruling of the Supreme Court of Kentucky at this link.
Posted at 22:50 by Howard Bashman



Available online from law.com: Tony Mauro reports that "High Court Clerks Show Market Clout as Firms Boost Bonuses." And Shannon P. Duffy reports that "3rd Circuit Revives Suit Over Assault by Federal Worker; Dispute over borrowed chair leads to attack."
Posted at 22:40 by Howard Bashman



Access online today's ruling of the Supreme Court of Connecticut in Office of the Governor v. Select Committee of Inquiry: That court's ruling, by a margin of 5-2, can be accessed here.
Posted at 17:52 by Howard Bashman



"CIA Contractor Charged Under Patriot Act": David Kravets of The Associated Press provides this report.
Posted at 17:49 by Howard Bashman



"Family Feud: Family courts don't solve conflict, they create it." Slate has just posted online this jurisprudence essay by Michael Newdow.
Posted at 17:44 by Howard Bashman



"The Connecticut Supreme Court says Gov. John G. Rowland must testify in the impeachment proceedings against him": The Associated Press has issued this news alert. Update: A more detailed report from The AP headlined "Court Rules That Rowland Must Testify" is now available.
Posted at 16:33 by Howard Bashman



"The Lawrence v. Texas ruling: 1 year later; Lawyer who argued sodomy case before the U.S. Supreme Court discusses opinion's impact": The Dallas Voice provides this report.
Posted at 16:24 by Howard Bashman



"To juxtapose these individually indefensible and collectively irreconcilable holdings one with the other is to confirm that we are a court in need of instruction in the critical areas of our jurisprudence represented by these precedents." So writes Fourth Circuit Judge J. Michael Luttig, dissenting today from that court's latest deliberate indifference, qualified immunity ruling.
Posted at 16:15 by Howard Bashman



"Heated Hatch uses salty language in document debate": This article appears today in The Salt Lake Tribune.
Posted at 16:11 by Howard Bashman



"Ark. Supreme Court Ends Schools Oversight": The Associated Press provides this report. You can access today's ruling of the Supreme Court of Arkansas at this link.
Posted at 15:51 by Howard Bashman



News from the headquarters of the U.S. Court of Appeals for the Fourth Circuit: NBC12 reports "Hazmat scare at Richmond's federal courthouse."
Posted at 14:36 by Howard Bashman



Ninth Circuit ducks the merits in two medical marijuana-related appeals: Far be it from me to suggest that the U.S. Court of Appeals for the Ninth Circuit does not expect the U.S. Supreme Court to agree with the Ninth Circuit's ruling in Raich v. Ashcroft, but how else to explain these two orders (see here and here) issued today. It's not every day that I encounter something new, but I've never heard of a federal appellate court's remanding to the federal district court for reconsideration -- based on how the U.S. Supreme Court might eventually rule -- cases on appeal that raise the same issue that's pending before the U.S. Supreme Court where the Supreme Court hasn't yet issued its ruling on the merits or even agreed to grant the petition for writ of certiorari seeking review.
Posted at 13:42 by Howard Bashman



U.S. Court of Appeals for the Ninth Circuit announces decision on Arizona law regulating abortion providers: In a nutshell, the Ninth Circuit views the Arizona law as more problematic than the trial court did. You can access today's ruling at this link.
Posted at 13:30 by Howard Bashman



Three recent "SCOTUSblog" posts of interest: This morning, Lyle Denniston had a post entitled "Crawford, the 9/11 Commission, and Zacarias Moussaoui." And yesterday Marty had two posts that are well worth a look: "Catholic Charities Petition" and "Racial Segregation in Prisons."
Posted at 13:25 by Howard Bashman



"Senate to Take Up Gay Marriage Amendment": The Associated Press reports here that "The Senate in mid-July will take up a constitutional amendment banning gay marriage, forcing lawmakers to cast a tough political vote just weeks before the Democratic presidential convention in Massachusetts."
Posted at 13:21 by Howard Bashman



In news from Vermont: The Rutland Herald reports that "Vermont's chief justice to step down" and "Douglas vows to appoint justice, even if he loses."
Posted at 12:11 by Howard Bashman



"Court to Decide if Rowland Will Testify": The Associated Press provides this report on this morning's oral argument in the Supreme Court of Connecticut. At the close of the oral argument, which just concluded, the court advised counsel that it expects to issue a ruling before the end of the day today.
Posted at 12:01 by Howard Bashman



"Republicans Block Subpoena of Torture Memos": Nina Totenberg had this report (Real Player required) on today's broadcast of NPR's "Morning Edition."
Posted at 11:54 by Howard Bashman



If you think it's difficult to determine whether an avocado is ripe, try determining whether an avocado-related free speech claim is ripe: A unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued this ruling today.
Posted at 10:23 by Howard Bashman



"Rocklin bans medical pot sale; In emergency vote, council sees threat to family atmosphere": The Sacramento Bee today contains an article that begins, "Rocklin officials shut the door to medicinal marijuana stores Thursday, likely becoming California's first city to opt for prohibition over regulation." And in yesterday's edition of that newspaper, legal affairs writer Claire Cooper reported that "U.S. appeals court questions pot grower's 2002 conviction."
Posted at 10:08 by Howard Bashman



View live online this morning's oral argument in the Supreme Court of Connecticut in Office of the Governor v. Select Committee of Inquiry: According to The Associated Press, in a report you can access here, "If Connecticut orders Rowland to testify, he would become the first sitting chief executive in U.S. history forced to answer questions before a legislative body. Even if the court declines to order testimony, historians and attorneys say, the ruling will forever change impeachment law in America." To access the live video feed, simply click here and then select either live stream one or live stream two. The oral argument is scheduled to begin at 10 a.m. and end at noon.
Posted at 09:55 by Howard Bashman



"Michigan judge inches closer to seat; Senate panel OKs Bush nominee for Appeals Court over objections of Levin, Stabenow": This article appears today in The Detroit News. And The Detroit Free Press reports that "Senate panel votes to approve Bush pick."

Meanwhile, a law professor who teaches in Michigan emails to say that The Associated Press commits an error when it reports here that "Saad was nominated to the 6th U.S. Circuit Court of Appeals, which hears cases from federal district courts in Michigan, Ohio, Kentucky and Tennessee. Traditionally, each state has supplied four judges to the 16-member court, but owing to a political dispute going back to the Clinton administration, all four of the Michigan seats are empty." According to the law professor, "Actually, the traditional breakdown of the 16 seats is five seats for both Michigan and Ohio, and three seats for both Tennessee and Kentucky. Currently, the Ohio, Tennessee, and Kentucky seats are fully occupied. As for the fifth Michigan seat, it belongs to Eric Clay, a 1998 Clinton appointee based in Detroit."
Posted at 06:10 by Howard Bashman



Thursday, June 17, 2004
It ain't over till it's over: The U.S. Court's Standing Committee on Rules of Practice and Procedure today on a voice vote sent proposed Federal Rule of Appellate Procedure 32.1 back to the Advisory Committee on Appellate Rules for further study. The proposed rule, which the Advisory Committee approved in April 2004 by a vote of 7-2, would allow so-called unpublished and non-precedential opinions to be cited in all U.S. Courts of Appeals. In my monthly appellate column published in April 2004, I anticipated that this proposed rule's path to enactment might include a setback of this nature.
Posted at 23:20 by Howard Bashman



In Thursday's newspapers: The New York Times reports that "Clinton, at Film Premiere, Says Starr Abused Power." In other news, "Suits to Fight Ban on Some Gay Marriages." An article is headlined "Report Says Arrest Thwarted Use of Substitute 9/11 Pilot." In other news, "Stewart Prosecution Witness Pleads Not Guilty to Perjury." And in business news, "Law Clients Given Choice: A Big Payout Or Privacy."

The Washington Post reports that "Justices Clear Way For Md. Execution; U.S. Supreme Court Lifts Stay Granted To Newlywed's Killer." An article reports that "Al Qaeda Figures Split on Moussaoui's Role in 9/11." In business news, "Expert in Stewart Trial Enters Not Guilty Plea; Ink Analyst Denies Perjury Charges" and "Adelphia Prosecutor Begins His Closing; Rigases Looted Company, He Says." An article reports that "Justice Dept. Worries About Internet Calls; Unregulated Networks Could Resist Tapping." An editorial is entitled "Let Ex-Felons Vote." And letters to the editor appear under the heading "'To Adhere to the Law' on Torture."

The Washington Times, in same-sex marriage-related news, reports that "Senate sets mid-July vote on marriage" and "Signers seek to block homosexual 'marriage.'" Bruce Fein has an op-ed entitled "One nation under God." And Marcus J. Goldman has an op-ed entitled "Message versus method."

The Boston Globe, in same-sex marriage-related news, reports that "About 2,500 gay couples sought licenses in 1st week" and "Two lawsuits to challenge 1913 law; GLAD calls law discriminatory." In other news, "Activists urge probe of US detention policies; Memos on torture raise new questions." An article is headlined "Last call for ladies night; Not everyone's toasting after New Jersey ban." And in regional news, "Swift OK'd a law that protects her"; "Departing AG was a rising star"; and "Protesters threaten to sue city; Permits, trash, time rile groups."

In The Los Angeles Times, Henry Weinstein reports that "Berkeley's Living Wage Ordinance Is Upheld in Federal Appeals Court; In the nation's first appellate-level ruling on the issue, the panel rejects a company's claim that the city's law violates its rights." In other news, "Prosecutor Is Called to Testify in Rape Trial; Defense questions whether taped evidence was altered during a viewing by an expert." An article reports that "Rumsfeld, Tenet Linked to Secret Detention of a Prisoner." In business news, "U.S. Underscores 'Greed, Betrayal' of Adelphia Ex-Execs." In local news, "Delgadillo Convictions Binding, Legal Letter Says." And David Klinghoffer has an op-ed entitled "Worshipers at the Secular Altar."
Posted at 23:00 by Howard Bashman



Available online from law.com: An article reports that "Justices Asked to Douse Arson Statute." In other news, "9th Circuit OKs Berkeley's Living Wage Law." In news from Georgia, "Gauging Effect of Jewell Libel Ruling; Decision could undermine media reporting, Rudolph bombing trial." And in news from New York, "Bugged Tenant Gains Rent Relief."
Posted at 22:50 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Wis. Group Sues Over Faith-Based Aid"; "U. of Illinois Dodge Vote on Mascot"; and "Supreme Court case Friday will have national implications."
Posted at 22:44 by Howard Bashman



"Md. executes Oken; Ehrlich denies clemency for convicted killer; Last-minute appeals rejected by courts; State's first execution in six years": The Baltimore Sun provides this news update, along with a news update headlined "For Md. death row inmates, a manual for the final days; 32-page state guidebook spells out grim protocols" and the text of the Governor of Maryland's letter denying clemency. In other coverage, The Associated Press reports that "Triple Murderer in Maryland Executed," while Reuters reports that "Maryland Executes Man Who Opposed Lethal Injection."
Posted at 22:33 by Howard Bashman



Tonight on the PBS program "Frontline": Tonight's program is entitled "The Plea" and is described as follows:
It is the centerpiece of America's judicial process: the trial by jury system that places a defendant's fate in the hands of a jury of one's peers. But just how many citizens are aware that nearly 95 percent of all criminal cases never reach a jury, but instead are settled through plea bargains? To overworked and understaffed defense lawyers, prosecutors, and jurists, plea bargains are the safety valve that keeps cases moving through our backlogged courts. Critics, however, contend that the push to resolve cases through plea bargains jeopardizes the constitutional rights of defendants, who may be pressured to admit their guilt whether they're guilty or not. In this 90-minute documentary, FRONTLINE explores the moral, judicial, and constitutional implications of relying on plea bargains to expedite justice.
If you miss tonight's broadcast, it should be available for viewing online next Monday via this link. Plenty of more information about tonight's broadcast is available online via this link.
Posted at 19:45 by Howard Bashman



"Supreme Court allows Rowland arguments to be broadcast live": The Associated Press reports here that "The state Supreme Court is allowing live television coverage of Friday's arguments on whether Gov. John G. Rowland must testify before a legislative impeachment panel. It will be the first live broadcast of proceedings before the state's highest court." You should be able to watch the oral argument live online tomorrow beginning at 10 a.m. via this link.
Posted at 19:40 by Howard Bashman



Available online from National Public Radio: Today's broadcast of "Day to Day" contained segments entitled "Is Lethal Injection Cruel and Unusual Punishment?" and "Slate's Jurisprudence: Steven Oken's Death Sentence" (featuring Dahlia Lithwick).

And this evening's broadcast of "All Things Considered" contained segments entitled "Rumsfeld Acknowledges Prisoner Held in Secret"; "CIA Contractor Charged in Fatal Prisoner Beating"; "Florida Will Reinstate Voting for Ex-Felons"; and "Truth and Reconciliation in Neshoba County."
Posted at 19:30 by Howard Bashman



"Court's door open for more voucher cases; The Supreme Court says federal courts can review a state tax plan benefiting parochial schools": Warren Richey will have this article in Friday's edition of The Christian Science Monitor.
Posted at 18:20 by Howard Bashman



"This case raises the question: what could be worse than having most of your home burn down in a fire?" So begins an opinion that a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued today. The first paragraph of the opinion continues:
The answer, of course, is having the rest of it burn down a couple of days later in a second fire. What would make the situation dramatically worse, however, is if the fire department determined that the second fire was intentionally set (possibly by you) and called in federal authorities to investigate, thus requiring you to invest substantial energy, time and money defending against such allegations. Such a scenario would be particularly outrageous if the fire department did not actually believe that the second fire was intentionally set but was merely trying to draw attention away from the possibility that it had been negligent in putting out the first fire. According to Charles M. McDonald of Winnetka, Illinois, this is exactly what happened to him. McDonald responded by bringing a constitutional equal protection "class of one" claim in the Northern District of Illinois against the Winnetka Fire Department, following our precedent in Olech v. Vill. of Willowbrook, 160 F.3d 386 (7th Cir. 1998), aff’d, 528 U.S. 562 (2000).
If, like me, you are fascinated by "class of one" equal protection claims, be sure to take a look at today's opinion.
Posted at 18:14 by Howard Bashman



"Feingold, Kohl taken to task for backing Sykes; Group says judge 'can't be impartial' on abortion rights": Yesterday's edition of The Milwaukee Journal Sentinel contained an article that begins, "A coalition of Wisconsin groups, many of which favor of abortion rights, has called out two of its traditional allies, Democratic Sens. Herb Kohl and Russ Feingold, over the pair's support for Wisconsin Supreme Court Justice Diane Sykes's ascendancy to an important federal court seat." Seventh Circuit nominee Diane S. Sykes is slated for a U.S. Senate confirmation vote under the terms of the "deal" that the White House last month reached with the Senate's Democratic leadership, but that vote hasn't happened yet, and I'm told that Justice Sykes (at least as of last week) still has not answered some supplemental written questions that she received from at least one Democratic Senator.
Posted at 17:58 by Howard Bashman



Finally some happy news for Sixth Circuit nominee Henry W. Saad: The Detroit Free Press provides a news update that begins, "Michigan Court of Appeals Judge Henry Saad's nomination to the U.S. Sixth Circuit Court of Appeals is headed for a full Senate vote after the Senate Judiciary Committee voted along party lines this morning to approve his nearly three-year-old nomination." And The Associated Press reports that "Senate committee approves judge nominee on party-line vote." Assuming that Judge Saad is a Detroit Tigers fan, however, the update to the post immediately below contains some unhappy news. The other piece of unhappy news is that every federal appellate court nominee to date approved by a party-line vote in the Senate Judiciary Committee has been the subject of a filibuster.

Finally, you can access here the statement of Judiciary Committee Chairman Orrin G. Hatch (R-UT) at today's executive business meeting, and you can access here multiple statements (including one about Judge Saad) from Ranking Democratic Member Senator Patrick J. Leahy (D-VT).
Posted at 17:44 by Howard Bashman



More later: On a day between the end of my son's school year and the start of summer camp, the Philadelphia Phillies have been considerate enough to schedule an afternoon baseball game today against the Detroit Tigers that my son and I will be attending.

Update: Phillies win 6-2, thanks in large measure to the amazing performance of right fielder Jason Michaels.
Posted at 10:51 by Howard Bashman



"Still 'Under God'? The Pledge of Allegiance is still in danger." Vincent Phillip Munoz has this essay today at National Review Online.
Posted at 10:46 by Howard Bashman



"Selfish motive alleged in fight over '3 strikes'": The Sacramento Bee today contains this article.
Posted at 10:44 by Howard Bashman



"A nude model, five bodies and the Mormon assassination plot attempt": This article about a criminal trial in Contra Costa, California state court appeared Tuesday in The Independent (U.K.). Today The Contra Costa Times reports that "Helzer guilty of five murders," while The San Francisco Chronicle contains an article headlined "Guilty verdict in murders of 5; Last of 3 members of cultlike group to be convicted."
Posted at 10:38 by Howard Bashman



"Judge rules Al Halabi court martial will proceed": This article appears today in The Daily Republic of Fairfield, California. The Sacramento Bee today reports that "Judge denies bid to toss spy case." The Times-Herald of Vallejo, California today reports that "Travis judge retains charges against airman." And The Associated Press is reporting that "Judge asks for ethics investigation of Al Halabi prosecutor."
Posted at 10:32 by Howard Bashman



"Schiavo case to highest court; The Florida Supreme Court will decide the fate of 'Terri's Law' in a move that bypasses the 2nd District Court of Appeal": The St. Petersburg Times today contains this article.
Posted at 10:20 by Howard Bashman



"High court clears way for Oken execution; Justices lift stay order upheld yesterday by panel": This article appears today in The Baltimore Sun.
Posted at 08:55 by Howard Bashman



"Vote planned on stalled judge nominees": The Detroit Free Press today contains an article that begins, "The Senate Judiciary Committee will push forward long-stalled votes on the nominations of three Michigan judges to the U.S. 6th Circuit Court of Appeals, the committee's chairman said Wednesday." And in other coverage, The Lansing State Journal today reports that "Committee votes set on judicial nominees; Senate panel will take action in two weeks."
Posted at 08:50 by Howard Bashman



"The Supreme Court Decision on the Pledge of Allegiance Case: Why It Raises Federalism Issues." Law Professor Marci Hamilton has this essay online today at FindLaw.
Posted at 07:07 by Howard Bashman



"Thomas' Take on the Law Has Broad Implications; The justice's historical perspective challenges many widely held beliefs about the Constitution": David G. Savage will have this article in Thursday's edition of The Los Angeles Times.
Posted at 00:08 by Howard Bashman



Wednesday, June 16, 2004
Judges and their portraits: This article appears today in The Pittsburgh Post-Gazette.
Posted at 23:15 by Howard Bashman



"Supreme Court lifts stay of Oken's execution; Decision clears way for convicted murderer to be put to death by lethal injection this week; Defense awaits Ehrlich's response to petition for clemency": The Baltimore Sun provides this news update.
Posted at 22:43 by Howard Bashman



"This case is reminiscent of the coroner's verdict in The Wizard of Oz: It's not only merely moot, it's really most sincerely moot." So begins the concurring opinion of Tenth Circuit Judge Michael W. McConnell in an appeal arising from a lawsuit that challenged Salt Lake City's inaction with regard to an application for a permit to conduct protests on public property during the 2002 Winter Olympics. Judge McConnell also wrote the opinion of the court, which appears to contain no "Wizard of Oz" references.

The point of Judge McConnell's concurrence was to argue that "the proposition that a claim for nominal damages automatically precludes mootness is inconsistent with fundamental principles of justiciability." Judge McConnell's concurrence, however, triggered a concurrence from Circuit Judge Robert H. Henry, who found Judge McConnell's contention overly "academic." Better yet, Judge Henry's concurrence, which begins here, contains even more extensive "Wizard of Oz" references at its outset.
Posted at 21:14 by Howard Bashman



"FCC Stands for 'Fidel's Crank Call'": You can access here and here Justice William W. Bedsworth's essay published this month in the Orange County Lawyer Magazine.
Posted at 19:55 by Howard Bashman



"Technology and the Constitution": O. Carter Snead has this essay in the Spring 2004 issue of The New Atlantis.
Posted at 19:35 by Howard Bashman



"Pledge case puts chill on parental rights; Although experts disagree on the case's reach, parents without custody could find it harder to press concerns": Warren Richey will have this article in Thursday's issue of The Christian Science Monitor.
Posted at 18:07 by Howard Bashman



"Fla. Court to Hear 'Terri's Law' Appeal": The Associated Press reports here that "The Florida Supreme Court on Wednesday agreed to hear an appeal in one of the nation's longest and most bitter right-to-die cases. The court voted 4-3 to hear the dispute over 'Terri's Law,' which forced doctors to reinsert the feeding tube that has kept Terri Schiavo alive for more than 14 years. The decision expedites the case, bypassing a review by a lower court."
Posted at 18:03 by Howard Bashman



"Andersen loses appeal of conviction": The Associated Press provides this report.
Posted at 17:05 by Howard Bashman



"Judge Denies Motion to Dismiss Guantanamo Spy Case": Reuters provides this report.
Posted at 15:20 by Howard Bashman



BREAKING NEWS -- U.S. Court of Appeals for the Fifth Circuit has affirmed Arthur Andersen's criminal conviction arising out of the Enron case: Mary Flood of The Houston Chronicle reports that "Houston jury's Arthur Andersen conviction upheld." I have posted a copy of the Fifth Circuit's ruling online, and you can access it at this link. Update: And now the decision can be accessed here via the Fifth Circuit's Web site.
Posted at 14:33 by Howard Bashman



"It is rare that a trip to the hair salon leads to a date in federal appellate court": So begins this opinion that Circuit Judge Ilana Diamond Rovner issued today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit.
Posted at 13:52 by Howard Bashman



Divided three-judge Ninth Circuit panel rejects constitutional challenges to Berkeley, California's Living Wage Ordinance: The majority opinion issued today begins:
As the cost of living skyrockets around the country, and in the San Francisco Bay Area in particular, the face of American poverty is changing dramatically. More and more frequently, full-time, minimum-wage workers are unable to support their families' basic needs. See Jim Newton, L.A.'s Growing Pay Gap Looms as Political Issue Poverty, L.A. Times, Sept. 7, 1999, at A1 ("Today's poverty icon is a working mother, toiling eight hours or more a day at a job that does not pay enough to cover the rent, clothe the baby or provide a life of even minimal comfort."). Recognizing the plight of its own working poor, the City of Berkeley, California, has joined dozens of other cities nationwide to help bridge the gap between federal and state laws setting the minimum wage -- the real value of which has decreased over the past few decades -- and the costs of modern urban living by enacting "living wage" ordinances. These ordinances require certain employers to pay their employees wages approximating the real cost of living in the locality, which is often significantly higher than the applicable state or federal minimum wage. Although these ordinances routinely exempt smaller or less profitable employers from their coverage, they do increase labor costs for affected employers.

We must decide whether Berkeley's Living Wage Ordinance, Berkeley Ordinance No. 6548-N.S. (2000) (creating Berkeley Municipal Code ch. 13.27), amended by Berkeley Ordinance No. 6583-N.S. (2000) ("Marina Amendment"), violates the Contract Clause of the United States Constitution, the Equal Protection Clause of the United States and California Constitutions, or the state and federal Due Process Clauses as an impermissible delegation of legislative power to unions. Reviewing the constitutionality of the local ordinance de novo, see 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108, 1113 (9th Cir. 1999), we hold that Berkeley's Living Wage Ordinance, as amended, survives these constitutional challenges. Accordingly, we affirm the decision of the district court denying RUI One Corporation's ("RUI") summary judgment motion and entering judgment in favor of the City of Berkeley.
Circuit Judge Jay S. Bybee dissented, because he would have held that the challenged provision violates the Contract Clause of the U.S. Constitution. You can access the complete ruling at this link.
Posted at 13:30 by Howard Bashman



"Appeals court upholds stay of Oken's execution; Three-member panel lets judge's decision from yesterday stand; State lawyers preparing appeal to Supreme Court; Death warrant expires at midnight Friday": The Baltimore Sun provides this news update. A reader emails that "Judge Traxler and Judge Michael voted to affirm, Judge Wilkinson dissented." In related coverage, today's edition of The Baltimore Sun reports that "Curran's views raise concern over conflict; Attorney general's call to abolish death penalty draws rebukes from some."
Posted at 13:14 by Howard Bashman



"Neb. Hog Farm Neighbors Win Court Battle": The Associated Press reports here from Lincoln, Nebraska that "The owner of farms housing thousands of hogs must pay damages to 11 neighbors who said the stench forced them indoors, the state Court of Appeals said Tuesday." You can access Tuesday's ruling of the Nebraska Court of Appeals at this link. A quick search online at Westlaw suggests that this is the first federal or state court opinion to use the phrase "musty hog shit smell."
Posted at 12:14 by Howard Bashman



This morning's Senate Judiciary Committee hearing for two Sixth Circuit nominees from Michigan was quite the non-event: No Senators asked any questions of either nominee. My earlier post, providing more details about the hearing, can be accessed here.
Posted at 12:00 by Howard Bashman



"20 questions for the appellate judge" update: I'm pleased to report that this month's interview will be published online here at midnight on the morning of Monday, June 21, 2004. This month's interviewee is California Court of Appeal Justice William W. Bedsworth. His answers just arrived, and I think you will find them to be both entertaining and informative.

My July 2004 "20 questions" interviewee will be Tenth Circuit Judge Paul J. Kelly, Jr. Anyone who wishes to suggest questions or topics for Judge Kelly to address should send them along via email. To initiate an email to me, simply click here.

Looking ahead, Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin will be the September 2004 interviewee, and Circuit Judge Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit will be the October 2004 interviewee.

I'm now seeking interviewees for August, November, and December 2004. The interview process works as follows. I email the entire set of questions midway during the month before the interview is scheduled for publication, and the interviewee has several weeks to prepare his or her answers. The interview is then published on the first Monday of the month in which the interview is scheduled to appear.

Federal and state appellate judges who wish to participate in this Web log's "20 questions for the appellate judge" in 2004 should send me an email specifying a preference for either August, November, or December 2004, and I will reply promptly to confirm scheduling. Thanks to those who have made this feature a success in the past, and to those who are working to ensure the feature's success into the future.
Posted at 11:15 by Howard Bashman



Available online from law.com: Marcia Coyle has an article headlined "0-2 in 9th, Ashcroft May Seek Review; At issue are medical pot, assisted suicide." In other news, "U.S. High Court Action Bodes Ill for French Railroad Suit." An article is headlined "Dog Day Afternoon at Calif. Supreme Court." In news from the Eleventh Circuit, "DirecTV Loses Weapon in Piracy Fight" (plus, you can access yesterday's decision written by Circuit Judge William H. Pryor, Jr. at this link). Finally, an article is headlined "Top Law Professors' Star Power: They're a hot commodity, and schools are scrambling to keep them."
Posted at 11:06 by Howard Bashman



God's problems in the U.S. Supreme Court's Pledge of Allegiance ruling: Thanks so very much to the reader who this morning brought to my attention an error in Chief Justice William H. Rehnquist's opinion concurring in the judgment in this week's ruling in the Pledge of Allegiance case. At page ten of his opinion, the Chief Justice purports to quote President George Washington's first Thanksgiving proclamation as follows:
Whereas it is the duty of all Nations to acknowledge the problems of Almighty God, to obey His will, to be grateful for his benefits, and humbly to implore his protection and favor....
The use of the word "problems" in that quotation is, of course, an error. The word that President Washington actually used (see here and here) is "providence."

Those looking for a more meaningful discussion of the case should see Lyle Denniston's "SCOTUSblog" post this morning titled "Justice Scalia and the Pledge of Allegiance."
Posted at 10:44 by Howard Bashman



Back online: My apologies for the outage at the Legal Affairs Web site this morning, which impeded access to this page. The outage did not keep me from drafting a bunch of new blog posts this morning, and those new posts can be found immediately below.
Posted at 10:34 by Howard Bashman



The Senate Judiciary Committee has just begun a confirmation hearing for two nominees to the U.S. Court of Appeals for the Sixth Circuit: You can view the confirmation hearing live online by clicking here (Real Player required). The two Sixth Circuit nominees who are the subject of this morning's hearing are David W. McKeague and Richard Allen Griffin.
Posted at 10:07 by Howard Bashman



"Espionage Case Against Airman Takes a Blow; Witness alleges misconduct": Josh Gerstein has this front page article today in The New York Sun.

In other coverage, The Contra Costa Times reports today that "Halabi's attorneys seek dismissal." The Times-Herald of Vallejo, California reports that "Defense tries to get TAFB airman's espionage charges tossed out." The Daily Republic of Fairfield, California reports that "Judge expected to rule today on airman's fate." The Associated Press reports that "Guantanamo Investigator Faces Charges." And Reuters reports that "U.S. Spy Case Investigator Charged with Child Rape."
Posted at 08:15 by Howard Bashman



"Court actions a mystery to Michiganders": Columnist Brian Dickerson today has an op-ed in The Detroit Free Press that begins, "The conventional wisdom among Michigan lawyers is that our state Supreme Court is a highly partisan operation in which Republican justices look out for deep-pocket defendants and Democratic justices look out for the plaintiffs (and trial lawyers) who sue them."
Posted at 08:11 by Howard Bashman



"'Alienation of affection' case rejected": This article appears today in The Kansas City Star. You can access yesterday's ruling of the Missouri Court of Appeals, Western District, at this link.
Posted at 08:07 by Howard Bashman



"Life prison term tossed over rights violations": The San Diego Union-Tribune today contains an article that begins, "A San Diego man's life sentence has been overturned by a federal appeals court, which ruled that his rights were violated because he was denied a complete court transcript from his first trial, which ended with a hung jury. In a 2-1 decision, highlighted by testy exchanges between judges on both sides, the 9th Circuit Court of Appeals ruled that Robert E. Kennedy's equal-protection and due-process rights were violated at his second trial." I previously wrote about this ruling in posts you can access here and here.
Posted at 07:15 by Howard Bashman



"Supervisors refuse to put cross issue on county ballot": The Los Angeles Daily News today contains this article.
Posted at 07:13 by Howard Bashman



"Affirmative action foes delay fight; Petition drive now to target '06 election": This article appears today in The Detroit News.
Posted at 07:12 by Howard Bashman



"'Retarded' label now ticket off death row; Upcoming battle: who qualifies?" Howard Mintz has this article in today's issue of The San Jose Mercury News.
Posted at 07:10 by Howard Bashman



"Judge grants divorce, but says she still a he; XY chromosomes trump other ruling": This article appears today in The Houston Chronicle.
Posted at 07:00 by Howard Bashman



"Ill. high court changes rules on appeals": The St. Louis Post-Dispatch today contains an article that begins, "Citing a huge Madison County lawsuit judgment that had threatened to put tobacco giant Philip Morris out of business while it tried to appeal, the Illinois Supreme Court on Tuesday changed a key court rule to make appeals cheaper for some civil defendants." And The Chicago Tribune today reports that "Judges get leeway on appeal security; Court says bond need not equal judgment amount."
Posted at 06:54 by Howard Bashman



In Wednesday's newspapers: The New York Times reports that "Judge Scolds U.S. Officials Over Barring Jet Travelers." (You can access yesterday's ruling by District Judge Charles R. Breyer of the U.S. District Court for the Northern District of California at this link.) In other news, "Gun Group's Radio Show Tests Limits on Advocacy." An article reports that "Judge Again Cites Lies by U.S. Witnesses." And letters to the editor appear under the headings "The Justices and 'Under God'" and "Torture, Then and Now."

The Washington Post reports that "Senate Backs Tougher Hate-Crimes Law." In regional news, "Judge Puts Execution of Md. Convict On Hold; Appeals Court Ruling Could Come Today" and "Strict Sentences Meted in Va. Jihad Case; Judge Angered by Rules Mandating Life Term for 1 Man, 85 Years for Another." Editorials are entitled "Torture Policy" and "Muzzling Abortion." Columnist Anne Applebaum has an op-ed entitled "So Torture Is Legal?" And Law Professor David Cole has an op-ed entitled "No More Roundups."

Finally, OpinionJournal offers an op-ed entitled "'Under God': Michael Newdow is right, Atheists are outsiders in America" by Samuel P. Huntington.
Posted at 06:20 by Howard Bashman



"Murder case questioned in appeals court": This article appears today in The Atlanta Journal-Constitution.
Posted at 06:10 by Howard Bashman



Tuesday, June 15, 2004
"Outspoken justices cloud high court's appearance": This article appears today in The Boston Globe.
Posted at 23:44 by Howard Bashman



Editorials and commentary on yesterday's ruling in the Pledge of Allegiance case: The Oregonian today contains an editorial entitled "The firecracker that fizzled: It's a shame the U.S. Supreme Court wasn't able to decide whether 'under God' belonged in the flag salute." The Salem Statesman Journal contains an editorial entitled "Supreme Court strays as 'under God' stays; Justices cop out, avoid addressing the divide between church, state." The Los Angeles Daily News contains an editorial entitled "Supreme deliverance: High court smacks down Ninth Circuit activism." The Dallas Morning News contains an editorial entitled "Thank God That's Over: Time for a pledge of common sense." The Fort Worth Star-Telegram contains an editorial entitled "On a technicality." USA Today contains an editorial entitled "Supreme Court wisely deflects dispute over Pledge." The Denver Post contains an editorial entitled "'Under God' preserved on a technicality; On Flag Day, Supreme Court leaves the door open for the Pledge issue to be decided in a future lawsuit, but we should hold sacred the right to utter the phrase." The Detroit Free Press contains an editorial entitled "'Under God': No clear ruling from court, though phrase can stay." The Palm Beach Post contains an editorial entitled "Unfurling some restraint." The Allentown Morning Call contains an editorial entitled "Ruling on 'under God' case is too narrow to satisfy constitutional issue." The Missoulian contains an editorial entitled "Court deals deftly with pledge case." The Indianapolis Star contains an editorial entitled "Justices ducked the pledge issue." The Washington Times contains an editorial entitled "In support of the Pledge." And The Wichita Eagle contains an editorial entitled simply "Pledge."

Finally, Law Professor Erwin Chemerinsky has an op-ed entitled "Tiptoeing Around 'Under God': The Supreme Court can't dodge the phrase forever" today in The Los Angeles Times.
Posted at 23:30 by Howard Bashman



"Justice Department legal memo widened rules on interrogation": This article appears today in The Pittsburgh Post-Gazette.
Posted at 23:28 by Howard Bashman



"High court allows challenge to state's private school tax credit": The Arizona Daily Sun today contains this article. The Yuma Sun reports that "Private school tax credit in doubt." And Joan Biskupic of USA Today reports that "Federal judges can review state tax-credit cases; Dispute involves policy benefiting religious schools."
Posted at 23:20 by Howard Bashman



"Court blocks citizen suits to compel land agencies to enforce laws; Case claimed BLM failed in its duty to protect wild areas": Bob Egelko of The San Francisco Chronicle provides this report. Henry Weinstein of The Los Angeles Times reports that "Off-Road Vehicle Case Is Rejected; Environmental groups had sued to protect lands being studied for wilderness designation; Interior Department praises the 9-0 decision." The Deseret Morning News reports that "SUWA ruling struck down; Justices say it would make fed judges land managers." And The Salt Lake Tribune reports that "Supreme Court slaps down SUWA."
Posted at 23:14 by Howard Bashman



"Antitrust suit shouldn't be tried in U.S., high court says; Case can't be heard unless there's harm to someone in nation": This article appears today in The Dallas Morning News. USA Today reports that "High court rebuffs foreign price-fixing suits; Drugmakers were accused of overcharging for vitamins." The Boston Globe contains an article headlined "Court: Foreign firms can't sue in US for global price fixing." Financial Times reports that "US Supreme Court delivers key antitrust ruling." Bloomberg News reports that "Roche, Vitamin Makers Win at Top U.S. Court on Suits." And Forbes.com has a report headlined "Supremes To Foreigners: Get Your Own Courts."
Posted at 23:00 by Howard Bashman



"Supreme Court Clarifies Law on Sex Harassment; Workers who quit due to 'intolerable' abuse can sue employers, justices say, while firms can defend themselves against paying damages": David G. Savage of The Los Angeles Times provides this report. The Pittsburgh Post-Gazette reports that "High court allows Pa. State Police defense in sexual harassment case." The Philadelphia Inquirer reports that "Court ruling is mixed on sex harassment." The Philadelphia Daily News reports that "She can sue state cops." And The San Francisco Chronicle reports that "Justices clarify sex harassment on the job; Workers who quit over bad working conditions can sue."
Posted at 22:46 by Howard Bashman



"Pledge father must pay former lover's legal fees in custody feud": David Kravets of The Associated Press has this report this evening. I first reported on this California state appellate court ruling last night in a post you can access here.
Posted at 20:25 by Howard Bashman



Coverage of yesterday's Pledge of Allegiance ruling from throughout the Nation: The Sacramento Bee today reports that "'Under God' stays in pledge - for now; On a technicality, justices sidestep constitutional issue." Bob Egelko of The San Francisco Chronicle reports that "Pledge challenge tossed on technicality; High court rules dad can't sue -- 'under God' stays." Josh Richman of The Oakland Chronicle reports that "High court keeps God in pledge; Top justices say Sacramento man didn't have necessary legal standing to bring suit." Howard Mintz of The San Jose Mercury News reports that "Pledge's 'under God' shows staying power; Side opinion: patriotic act, not religious." And David G. Savage of The Los Angeles Times reports that "Justices Keep 'God' in Pledge of Allegiance; In tossing out a California atheist's challenge, the high court avoids the question of constitutionality; This leaves the door open to similar lawsuits."

In USA Today, Joan Biskupic reports that "'Under God' stays in Pledge; Supreme Court rules on technicality." The Boston Globe reports that "'Under God' to stay in Pledge of Allegiance; Justices reverse lower court ruling." The Washington Times reports that "'Under God' remains in Pledge." The Baltimore Sun reports that "'God,' for now, stays in pledge; Justices, on technicality, overturn Calif. verdict, 8-0; Girl's father lacks legal standing; Hot constitutional issue ducked; new case possible." The Pittsburgh Post-Gazette reports that "Justices overturn decision on pledge; Lower court ban lifted on narrow grounds." The Atlanta Journal-Constitution reports that "Challenge to pledge is rejected." The Houston Chronicle reports that "'Under God' can stay in pledge, court says; Atheist's case thrown out on technicality." The Hartford Courant reports that "'Under God' Remains OK For Pledge; But Supreme Court Ruling Sidesteps Church-State Issue." The Deseret Morning News reports that "Pledge of Allegiance upheld; Justices sidestep ruling on validity of 'under God.'" The Newark Star-Ledger reports that "Court leaves 'under God' and nation's pledge intact." And yesterday's broadcast of the PBS program "NewsHour with Jim Lehrer" contained a report whose transcript you can access here.
Posted at 19:33 by Howard Bashman



"Sizing Up the 2003-2004 Supreme Court Term: A Practitioner's View." law.com's Tony Mauro will be hosting this event in Washington, DC on the afternoon of Wednesday, July 14, 2004. Scheduled as panelists are some folks that regular readers of this blog have probably heard of: Miguel A. Estrada; Thomas G. Hungar; Michael A. Newdow; and Jay Alan Sekulow. It's still too soon to say whether I'll have the pleasure of making a repeat appearance. Anyone who wishes to attend can purchase admission via this link.
Posted at 16:55 by Howard Bashman



Bobblehead Justice not included: Law Professor Paul H. Edelman of the Vanderbilt University Law School will have an article entitled "Law Clerks, Law Reviews, and Some Modest Proposals" in a forthcoming issue of The Green Bag. You can access the article online now at this link via SSRN (bobblehead Justice not included). (Via "Legal Theory Blog.")
Posted at 16:40 by Howard Bashman



These Justice Department lawyers probably now really wish they were litigating before the Eighth Circuit instead of the Seventh Circuit: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued a four-page decision, written by Circuit Judge Frank H. Easterbrook, that denied the motion of the U.S. Department of Justice to have an immigration case transferred to the Eighth Circuit. When the underlying administrative hearing occurred, everyone but the immigration judge was physically present in the Eighth Circuit, while the immigration judge was physically present in the Seventh Circuit and connected via videoconference. In the course of the ruling, Judge Easterbrook scolds the federal government's lawyers for having failed to file their appellate brief when due and has a few words of caution for any lawyers who would expect anything other than a granted motion for an extension of time in which to file a brief to postpone a brief's due date.
Posted at 16:21 by Howard Bashman



"A father's pledge: For Michael Newdow, scrapping 'under God' from the Pledge of Allegiance became as much about parental rights as about the First Amendment. Despite a Supreme Court loss, he still expects, someday, to win." Salon.com today offers this report. And today's broadcast of NPR's "Day to Day" included a segment entitled "Slate's Jurisprudence: Pledge Case and Custody Battles" featuring Dahlia Lithwick.
Posted at 14:45 by Howard Bashman



"Lone Star Justice: Alberto Gonzales' strange views of international law." Slate has just posted online this jurisprudence essay by Alan Berlow.
Posted at 13:54 by Howard Bashman



"Ford lawyer makes Explorer apology": This article appears today in The Detroit News.
Posted at 12:21 by Howard Bashman



"Oken execution delayed; Judge issues indefinite stay; Defense lawyers had sought time to argue lethal injection in Md. cruel, unusual, citing leak in most recent death row procedure": The Baltimore Sun provides this news update on a ruling made public today that the U.S. District Court for the District of Maryland issued yesterday.
Posted at 11:29 by Howard Bashman



Is confusion the cost of securing a result in the Pledge of Allegiance case in which all eight participating Justices could concur? The five-Justice majority in yesterday's ruling of the U.S. Supreme Court in the Pledge of Allegiance case concluded that Michael A. Newdow lacked standing to bring the suit, but that majority then went on to call its result a "reversal" of the Ninth Circuit's judgment in its entirety. The majority's characterization of its result as a complete reversal of the Ninth Circuit allowed the remaining three Justices -- who disagreed with the majority's holding that Newdow lacked standing and who would have held that the Pledge of Allegiance does not violate the establishment clause -- to nevertheless issue separate opinions that those three Justices characterized as concurrences in the judgment.

What the majority actually did, however, was simply reverse the Ninth Circuit's decision holding that Newdow had standing to maintain the lawsuit. The majority did not reach the underlying merits, recognizing instead that the consequence of its standing decision was to vacate the merits rulings that the lower courts had issued. The result that the majority reached yesterday is therefore more accurately characterized as reversing the Ninth Circuit's judgment on the standing issue and vacating the Ninth Circuit's judgment in all other respects, with instructions to dismiss the suit for lack of standing.

Yet had the majority described its result in that more accurate manner, the remaining three Justices who disagreed with the majority as to standing and who also disagreed with the Ninth Circuit's ruling on the underlying merits could not have issued opinions concurring in the judgment. The majority's inaccurate description of its result thus avoided the issuance of any dissenting opinions in the Pledge case. Whether this is the reason why the majority incorrectly described its result yesterday is a question that only others can answer.
Posted at 10:30 by Howard Bashman



"Tout Torture, Get Promoted; Defending cruelty can be a career booster in Bush's administration": Los Angeles Times columnist Robert Scheer today has this op-ed about Ninth Circuit Judge Jay S. Bybee. And Law Professor Douglas W. Kmiec today has an essay entitled "Torture Tumult: Exploring emergency presidential power is not an authorization of torture" at National Review Online.
Posted at 10:25 by Howard Bashman



The organization Judicial Watch loses appeal seeking to quash Internal Revenue Service summons in proceeding that could cause the organization to lose its tax-exempt status: You can access today's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link. That's two D.C. Circuit losses for Judicial Watch in two days (access here the organization's press release issued in response to this ruling from yesterday).
Posted at 10:20 by Howard Bashman



How many Justices will need to recuse themselves from the next challenge to the words "under God" in the Pledge of Allegiance to reach the U.S. Supreme Court? This post raises the question whether, in retrospect, it was absurd for Justice Antonin Scalia to have recused himself from the Pledge of Allegiance case.

The public comments that Justice Scalia made about efforts to remove the words "under God" from the Pledge of Allegiance were not directed specifically toward the Newdow case, but rather those comments applied equally to all lawsuits seeking that result. Doe this mean that Justice Scalia will need to recuse himself from any and all future cases that reach the Supreme Court challenging the constitutionality of the words "under God" in the Pledge of Allegiance?

And what about the Chief Justice and Justices Sandra Day O'Connor and Clarence Thomas? Those three members of the Court yesterday, in a case in which a majority held that jurisdiction was lacking to reach the merits of the establishment clause question, issued opinions in which they stated that they would reject an establishment clause challenge to the Pledge in its current form. Will those three Justices need to recuse from the next Pledge case to reach the Court? If not, how is their prior commitment to a result different from Justice Scalia's? And won't it be easier, as a theoretical matter, for Justice Scalia to reach a result that differs from his public statement than it will be for the other three Justices to renounce their formal judicial opinions issued yesterday?
Posted at 10:08 by Howard Bashman



"Thank God": That's the title of Dana Mulhauser's essay published online at The New Republic in reaction to yesterday's ruling of the U.S. Supreme Court in the Pledge of Allegiance case. At National Review Online, Susanna Dokupil today has an essay entitled "Supreme Sidestep: Court upholds Pledge on a technicality." Claire Cooper, legal affairs writer for The Sacramento Bee, reports today that "Newdow plans to try again; some call it a long shot." And on today's broadcast of NPR's "Morning Edition," Nina Totenberg has a report entitled "High Court's Pledge Decision Skirts Divisive Fight."
Posted at 10:01 by Howard Bashman



"Knox County officials, adult store square off; Arrests raise issue of free speech vs. community wishes": This article appears today in The Courier-Journal of Louisville, Kentucky.
Posted at 07:17 by Howard Bashman



"Newdow: We will challenge Pledge again." CNN.com offers this transcript of an interview that CNN conducted yesterday.
Posted at 07:16 by Howard Bashman



"Supreme Court to hear Title IX case from Ensley; Girls' coach fired after discrimination complaint": The Birmingham News contains this article today.
Posted at 07:15 by Howard Bashman



"Federal courts given OK to hear state tax cases": This article appears today in The Arizona Republic.
Posted at 07:00 by Howard Bashman



In Tuesday's newspapers: In The Washington Post, Charles Lane reports that "Justices Will Review Title IX Case; Retaliation Claim Is Disputed Issue." In business news, "High Court Allows FCC To Throw Out Phone Rules; AT&T Considers Abandoning Two Markets." An editorial is entitled "Never Mind the Pledge." Columnist David Ignatius has an op-ed entitled "Small Comfort." And a letter to the editor appears under the heading "Fighting Terrorism While Guarding Privacy."

The New York Times reports that "Supreme Court Declines to Extend Phone Pricing Rule." A related article is headlined "The Bells and the Ruling on Access Fees." In regional news, "Reporters' Subpoenas Are Being Fought in the Case of a Lawyer Accused of Aiding Terrorism" and "Queens Judge Accepts Call for Transfer." In news from overseas, "4 Britons Charged With Abuse Will Face Trial in Military Court" and "On a London Stage, a Hearing for Guantanamo Detainees." A profile of the artist who painted the portraits of Supreme Court Justices Thurgood Marshall and Ruth Bader Ginsburg is headlined "From Doodles to Clintons." An obituary is headlined "Whitman Knapp, Judge Who Exposed Police Corruption, Dies at 95." In sports, "Looking in Court, Not on It, to Understand the N.B.A." An editorial is entitled "Recording Police Questioning." And columnist Paul Krugman has an op-ed entitled "Travesty of Justice."

The Christian Science Monitor contains a book review headlined "With science, justice is blind and ignorant; Courts like to build on precedent, but scientific knowledge shifts fast." And an editorial is entitled "Mexican Trucks on US Highways."
Posted at 06:40 by Howard Bashman



"Critics of Bush Becoming Emboldened By Setbacks to Administration Plans; Justice Acknowledges a Rough Patch": Josh Gerstein today has this front page article in The New York Sun.
Posted at 06:33 by Howard Bashman



Ten Commandments news: The Idaho Statesman reports today that "Coalition wants to put monument on ballot; Boise city attorneys will determine whether voter initiative is valid." And The Daily Herald of Everett, Washington today contains an article headlined "Drop case, petition urges; Expense of defending monument criticized."
Posted at 06:15 by Howard Bashman



Monday, June 14, 2004
Elsewhere in Monday's newspapers: USA Today reports that "Medical-malpractice battle gets personal; Some doctors refuse to treat attorneys." And in other news, "Lawyer wants Rumsfeld, others to testify in prison-abuse case; Reservist's attorney: Higher-ups knew of practices."

The Washington Times contains an op-ed entitled "DOJ and Padilla" by Nat Hentoff.
Posted at 23:50 by Howard Bashman



You don't say: The U.S. Court of Appeals for the D.C. Circuit, which decided to issue today the decisions that had been scheduled for release last Friday, today announced a ruling in which the unanimous three-judge panel's opinion begins, "In this lawsuit, Congressman Bob Barr charges that President Clinton and one of his political advisors unlawfully conspired with Larry Flynt, publisher of Hustler magazine, to gather and disseminate disparaging information about Barr in order to retaliate for his role in the Clinton impeachment proceedings."
Posted at 23:45 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Court Won't Save Phone Competition Rules." An article about a ruling that the U.S. Court of Appeals for the D.C. Circuit issued today is headlined "Court Rejects Barr's Suit Against Clinton." And in other news, "Ashcroft Proposes New Child Porn Measures"; "Officer: Peterson Story Didn't Add Up"; "Calif. Won't Let 17-Year-Olds Vote"; and "Judge Orders Nazi Camp Guard Deported."
Posted at 23:25 by Howard Bashman



Along the way he lost his majority: Writing about the U.S. Supreme Court ruling that I earlier described as the most interesting of the six decisions issued today, Linda Greenhouse states in tomorrow's edition of The New York Times:
In a dissent, Justice Anthony M. Kennedy said the court should have deferred to the state on federalism grounds. Justice Kennedy evidently had originally been designated to write a majority opinion for this position but lost his majority along the way. Of 10 cases argued in January, this was Justice Ginsburg's third majority opinion, while only Justice Kennedy has no majority opinion from that month.
You can access the Supreme Court's ruling issued today in Hibbs v. Winn at this link.
Posted at 23:04 by Howard Bashman



"8 Justices Block Effort to Excise Phrase in Pledge": Linda Greenhouse will have this article in Tuesday's edition of The New York Times. In Tuesday's issue of The Washington Post, Charles Lane will report that "Justices Keep 'Under God' in Pledge; Atheist Father Lacked Standing to Sue on Behalf of Daughter, Court Rules." And online at law.com, Tony Mauro reports that "Supremes Turn Back Newdow's Pledge Challenge."

In tomorrow's issue of The NYTimes, Greenhouse will also have articles headlined "The Reach of U.S. Antitrust Law Overseas Is Limited" and "Rules Are Set for Some Harassment Cases."
Posted at 22:55 by Howard Bashman



Not a good day to be Michael A. Newdow: Not only did Newdow suffer a defeat at the hands of the U.S. Supreme Court today, but he also lost his appeal to the California Court of Appeal for the Third Appellate District from a California trial court's orders requiring him to pay a portion of the attorney's fees of his daughter's mother, Sandra L. Banning, pursuant to California Family Code section 7640.2. You can access the U.S. Supreme Court's ruling here and the California appellate court's ruling here.

In other news coverage of today's U.S. Supreme Court ruling, Stephen Henderson of Knight Ridder Newspapers reports that "Court sidesteps church-state issue in ruling on Pledge of Allegiance." Warren Richey of The Christian Science Monitor will report in tomorrow's edition that "Court keeps 'under God' in Pledge; It rules that the California father who brought the case doesn't have legal standing." The Sacramento Bee offers a news update headlined "Supreme Court decision pleases Elk Grove school officials." David Kravets of The Associated Press reports that "Newdow says pledge decision a blow to parents; experts disagree." Slate's Dahlia Lithwick has an essay entitled "Father Knows Worst: The high court wasn't chicken to duck the pledge case." CBS News analyst Andrew Cohen has an essay entitled "High Court Ducks Hot Potato Case." Finally, on this evening's broadcast of NPR's "All Things Considered," Nina Totenberg reported that "High Court Keeps 'Under God' in School Pledge" (Real Player required).
Posted at 20:44 by Howard Bashman



"Supreme Court sidesteps pledge issue, ruling father has no right to sue": Bob Egelko of The San Francisco Chronicle provides this news update.
Posted at 16:45 by Howard Bashman



This blog's "20 questions for the appellate judge" feature quoted in today's acrimonious Ninth Circuit ruling: I first wrote about the substance of this ruling in a post you can access here, but that post failed to mention that Circuit Judge Diarmuid F. O'Scannlain's dissent (in the text accompanying footnote 7) quotes from Circuit Judge Stephen Reinhardt's recent "20 questions" interview. The complete question and answer from Judge Reinhardt's interview follows:
4. Some of your critics assert that you exemplify a discredited approach to judging whereby a judge decides how to rule based on his or her own personal preferences, divorced from precedent and other traditional tools of adjudication, and then manipulates the law to justify the result. Do you view that description of your approach to judging as accurate to any extent, and why or why not? Also, is this a criticism that in your view would sometimes appropriately be directed toward politically conservative judges, and what decisions would exemplify the use of that approach on the conservative side?

Conservative politicians eager to pack the courts with right-wing ideologues, and some of their camp followers in academia, have deliberately distorted the jurisprudence of judges who treat the Constitution as a living, breathing instrument. These distortions are nothing more than political slogans designed to vilify judges whose views differ from their own. This is regrettable. No judge I know, liberal or conservative, acts in the manner described in your question. Most, if not all, judges do their very best to follow the law as they understand it, to respect precedent, and to use the traditional tools of adjudication. The disagreements frequently result from differing views of what the Constitution mandates, of the proper role of the federal judiciary in a democratic society, or even of what legal principles apply to the construction of statutes. For example, when examining the purposes and objectives of a congressional enactment, one side may consider whether an interpretation that leads to unfairness and injustice is consistent with what Congress intended. The other may not care so much about what Congress may have had in mind, but instead may view the statutory question through a far narrower and more rigid set of legal rules. Usually, however, both sides are applying what they sincerely believe to be the proper jurisprudential principles. Each side may believe the other is misguided. Neither should accuse the other, however, of being dishonest or of refusing to follow the law.

We all frequently apply the law in ways we would prefer not to. I have sat on a host of cases in which, had I been imposing only a Solomonic sense of justice unconstrained by the Constitution, federal statutes, or precedent, I would have come to a different result than I was compelled to reach. It is not a happy task to have to uphold an unjust or unfair result. But it is one that, at least on some occasions, every appellate judge must perform. I am regularly required by law, for example, to affirm deportation orders and deny petitions for writ of habeas corpus in instances in which it appears to me that the result is unjust and in which I believe the individuals are being deprived of due process of law. However, the federal statutes involved, or an applicable precedent from this court or the Supreme Court, often leave me no choice.

None of this is to say that one's personal life experiences play no role in what one does as a federal judge. As judges, we are called upon to bring our full range of such experiences to bear upon the cases we decide. Indeed, we are appointed and confirmed partially on the basis of the "diverse" experiences we bring to the bench. One aspect of every judge's experience is, of course, his views of the proper role of courts in a democratic society, how the Constitution ought to be interpreted, how statutes should be read, and what judges ought to do in the face of manifest injustice.

So to answer your question directly, I do not view the description of my jurisprudence you have posited to be accurate or appropriate. Liberal judges -- and we are a small minority these days -- do not manipulate law to reach a predetermined result. We apply a particular philosophy of law -- often infused by concepts like "rights" and "social justice" that may appear foreign to the admirers of the jurisprudential views of those who see the Constitution only as a technical framework for the allocation of powers. The jurisprudential views we espouse are those we believe to be most faithful to the text, structure, and history of the Constitution. Conservatives -- be they "strict constructionists," "texualists," or "originalists," -- apply their own philosophy of law to the very same legal problems we face. It is naive, if not disingenuous, to assume that liberals are simply imposing a "personal preference," while those conservative judges who continually reach the same restrictive result, in case-after-case, are simply "following the law." Different legal philosophies produce divergent legal consequences. We can debate which constitutional philosophy is the more appropriate one, but it is intellectually dishonest, and ultimately a disservice to the law, to accuse those who subscribe to a competing philosophy of being lawless or engaging in misconduct.
For better or worse, Judge Reinhardt did not quote from Judge O'Scannlain's "20 questions" interview (although Judge Reinhardt did take a few shots at Judge O'Scannlain in footnote 20 of the majority opinion).
Posted at 16:00 by Howard Bashman



Substantive due process, parental rights, and grandparent visitation: I have been retained today to seek review in the Supreme Court of Pennsylvania of this ruling by the Superior Court of Pennsylvania that affirmed a trial court's decision to override a sole surviving parent's decision concerning the amount of contact that his child should have with the child's maternal grandparent (the deceased parent's parent). In the aftermath of the U.S. Supreme Court's June 2000 ruling in Troxel v. Granville, nearly every state court of last resort to consider the question has held that courts cannot override a sole surviving fit parent's decision concerning the amount of grandparent visitation that is appropriate in the absence of proof that a lack of visitation is causing actual harm to the child.
Posted at 15:45 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Court Clarifies Sexual Harassment Ruling" and "Supreme Court to Consider Police Searches." Anne Gearan reports that "Supreme Court to Hear Ala. Coach's Case." And in other news, "Court Blocks Suit Over Western Wilderness."
Posted at 15:10 by Howard Bashman



"Slate's Jurisprudence: Court Keeps God in Pledge." Today's broadcast of NPR's "Day to Day" contained this audio report (Real Player required) from Dahlia Lithwick. I agree with Dahlia that the basis for the Court's ruling today shouldn't be called a "technicality."
Posted at 15:00 by Howard Bashman



"This case represents a triumph of lawyering from the bench." In a three-strikes decision that the U.S. Court of Appeals for the Ninth Circuit issued today in which the defendant's third strike was for "selling 0.08 grams of a substance in lieu of a controlled narcotic drug -- a substance that looked like an illegal drug but wasn't -- to an undercover police officer for $20," Circuit Judge Diarmuid F. O'Scannlain today issued a dissenting opinion that begins:
This case represents a triumph of lawyering from the bench. While I share some of the court's evident sympathy for the defendant--whose third strike resulted from the sale of less than one-tenth of one gram of a legal substance to an undercover officer--I respectfully dissent from its decision to step into counsel's shoes and tango its way around the deference we owe to state courts as coordinate expositors of federal law.
The majority opinion, written by Circuit Judge Stephen Reinhardt, includes a final footnote (click here and scroll down the page to footnote 20) which suggests that Judge O'Scannlain's dissent has rather irked the majority. Circuit Judge Raymond C. Fisher joined the majority opinion and also issued a short concurring opinion.
Posted at 14:30 by Howard Bashman



"Justices Uphold Pledge of Allegiance; Justices sidestep 'under God' debate by ruling that a non-custodial parent can't sue; More litigation on the issue is expected": The Los Angeles Times provides this news update from James Gerstenzang and David Savage. And The Washington Post provides a news update headlined "Supreme Court Dismisses Pledge Case on Technicality; Justices Do Not Decide Constitutionality of Reference to God in Pledge of Allegiance" from William Branigin and Charles Lane.

In just a few moments from now, The Washington Post will host an online chat about the Pledge case with Professor Mark Tushnet of the Georgetown University Law Center.
Posted at 14:15 by Howard Bashman



A few words about two of today's U.S. Supreme Court rulings: Some may wonder why today's U.S. Supreme Court ruling dismissing for lack of parental standing a challenge to the words "under God" in the Pledge of Allegiance is such a big deal, because surely some other parent residing within the geographical boundaries of the U.S. Court of Appeals for the Ninth Circuit who actually has next "friend standing" with regard to his or her school-aged child could bring another such challenge. The short but accurate answer is that if another identical challenge is filed, it would come before a randomly-selected three-judge Ninth Circuit panel, and that panel would be free to rule on the merits however it saw fit, unencumbered by the earlier three-judge panel's ruling in the Newdow case holding unconstitutional recitation of the words "under God" when the Pledge is spoken in school. If the next Ninth Circuit panel to confront this issue (and I feel certain this will happen before long) holds that the Pledge is constitutional in its current form, there will be no circuit split and no need for U.S. Supreme Court involvement.

Today's most interesting opinion, in my humble view, is the day's only 5-4 ruling, in which the central issue is the relative responsibilities of state and federal courts in adjudicating constitutional challenges to state tax credits. More precisely, the question presented is whether the federal Tax Injunction Act, which prevents federal courts from hearing challenges to state tax laws where state courts provide an adequate forum in which to resolve the alleged violation of federal rights, likewise precludes federal courts from hearing constitutional challenges involving state tax credits. Justice Anthony M. Kennedy's dissenting opinion begins, "In this case, the Court shows great skepticism for the state courts' ability to vindicate constitutional wrongs. Two points make clear that the Court treats States as diminished and disfavored powers, rather than merely applies statutory text." And Justice Ruth Bader Ginsburg's majority opinion waits only until the third paragraph before invoking Brown v. Board of Education, 347 U.S. 483 (1954), as support for the majority's decision. Update: A recent former law clerk to a certain judge on the Ninth Circuit wants me to note that Supreme Court in this case affirmed a decision written by Circuit Judge Stephen Reinhardt. Consider it done.
Posted at 12:46 by Howard Bashman



"No Mercy: Ronald Reagan's tough legal legacy." Slate has just posted online this jurisprudence essay by attorney Gerald Shargel.

Sticking with the mercy theme, you can now access online via this link an interesting law review article by Dan Markel titled "Against Mercy," which is being published this year in the Minnesota Law Review.
Posted at 12:34 by Howard Bashman



Thanks for your patience: For a short while around 11 a.m. eastern time today, the Web site of Legal Affairs (which hosts this blog) was inaccessible. I don't know whether that was due to excessively large traffic to the blog, from readers in search of news about today's U.S. Supreme Court rulings (found immediately below), or was just a combination of bad luck and bad timing. In any event, the site came back online quickly, and I thank readers for their patience during the brief outage.
Posted at 12:00 by Howard Bashman



Today's U.S. Supreme Court opinions and orders: BREAKING NEWS -- The Supreme Court of the United States has issued its decision today in the Newdow Pledge of Allegiance case, holding that Michael A. Newdow lacks standing to pursue the case. The Ninth Circuit's now-overturned decision upholding the father's standing can be accessed here, and the Ninth Circuit's ruling on the merits (which also no longer has the force of law) can be accessed here. In news coverage of this ruling, Anne Gearan of The Associated Press reports that "Supreme Court Preserves 'God' in Pledge."

In all, the Court today issued six opinions in argued cases.

1. Justice Stephen G. Breyer issued the opinion of the Court in F. Hoffmann-LaRoche, Ltd. v. Empagran S.A., No. 03-724, and the judgment under review was vacated and the case remanded. You can access the syllabus here; Justice Breyer's opinion for the Court, in which the Chief Justice and Justices John Paul Stevens, Anthony M. Kennedy, David H. Souter, and Ruth Bader Ginsburg joined, here; Justice Antonin Scalia's opinion concurring in the judgment, in which Justice Clarence Thomas joined, here; and the oral argument transcript here. Justice Sandra Day O'Connor was recused.

2. Justice Ginsburg issued the opinion in Hibbs v. Winn, No. 02-1809, and the judgment under review was affirmed. You can access the syllabus here; Justice Ginsburg's opinion for the Court, in which Justices Stevens, O'Connor, Souter, and Breyer joined, here; the concurring opinion of Justice Stevens here; the dissenting opinion of Justice Kennedy, in which the Chief Justice and Justices Scalia and Thomas joined, here; and the oral argument transcript here.

3. Justice Ginsburg also issued the opinion in Pennsylvania State Police v. Suders, No. 03-95, and the judgment under review was vacated and the case remanded. You can access the syllabus here; Justice Ginsburg's opinion for the Court, in which all but Justice Thomas joined, here; the dissenting opinion of Justice Thomas here; and the oral argument transcript here.

4. Justice Souter issued the opinion in United States v. Dominguez Benitez, No. 03-167, and the judgment under review was reversed and the case remanded. You can access the syllabus here; Justice Souter's opinion for the Court, in which all but Justice Scalia joined, here; Justice Scalia's opinion concurring in the judgment here; and the oral argument transcript here.

5. Justice Scalia issued the opinion for a unanimous Court in Norton v. Southern Utah Wilderness Alliance, No. 03-101, and the judgment under review was reversed and the case remanded. You can access the syllabus here; Justice Scalia's opinion for the Court here; and the oral argument transcript here.

6. Justice Stevens issued the opinion of the Court in Elk Grove Unified School Dist. v. Newdow, No. 02-1624, and the judgment under review was reversed. You can access the syllabus here; Justice Stevens' opinion for the Court, in which Justices Anthony M. Kennedy, Souter, Ginsburg, and Breyer joined, here; the opinion of the Chief Justice concurring in the judgment, in which Justices Sandra Day O'Connor and Clarence Thomas joined, here; the opinion of Justice O'Connor concurring in the judgment here; the opinion of Justice Clarence Thomas concurring in the judgment here; and the oral argument transcript here.

Today's Order List can be accessed at this link. The Court granted review in three cases today.

In other coverage from The AP, Anne Gearan reports that "Supreme Court to Hear Ala. Title IX Case," while Gina Holland reports that "Court OKs Federal Challenge to State Tax"; "Court Orders Review of WWII-Era Cases" and "Supreme Court Rejects Iran Hostage Case."

From Reuters, James Vicini reports that "Supreme Court Decides Pledge Case on Technicality" and "Court Sets Liability Rules in Harassment Cases," while unsigned articles are headlined "Antitrust Laws Don't Cover Foreign Cases" and "Groups Can't Sue Over Public Lands, Court Rules."

The Court will next issue opinions and orders on Monday, June 21, 2004.
Posted at 10:00 by Howard Bashman



"Courts' race standard rejected; Ruling: Whites should not face more obstacles in discrimination cases." The Associated Press provides this report about a ruling that the Supreme Court of Michigan issued on Friday. The majority opinion is three pages long, while two dissenting opinions total seventeen pages in length. A three-page concurring opinion, issued in response to the dissents, concludes: "I do not challenge the good intentions of my dissenting colleagues; I do challenge their Orwellian racial policy preferences." You can access the complete decision at this link.
Posted at 09:50 by Howard Bashman



"New York Artist Faces Bioterrorism Charges": Today's broadcast of NPR's "Morning Edition" contained this report (Real Player required).
Posted at 09:45 by Howard Bashman



"The Torture Memos: Putting The President Above The Law." Stuart Taylor Jr. has this essay in today's edition of National Journal.
Posted at 08:44 by Howard Bashman



On the agenda: At 10 a.m. eastern time today, the Supreme Court of the United States is scheduled to issue opinions in argued cases and an Order List. Twenty-two argued cases remain to be decided this Term, so the prospect that one or more blockbuster rulings will issue today is pretty good. Bloomberg News is reporting today that "U.S. Supreme Court to Decide Terrorism, HMO Cases as Term Ends." Finally, as I previously noted in a post you can access here, today is not only Flag Day, but also the 50th anniversary of the date on which the words "under God" were added to the Pledge of Allegiance.
Posted at 07:25 by Howard Bashman



"Trying to aid son before execution; Oken's parents attend rallies, speak to him daily as sentence draws near": The Baltimore Sun today contains this article.
Posted at 07:22 by Howard Bashman



"Oyster farmers offer to settle with state; Sum is 81% less than original jury award": This article appears today in The Times-Picayune. This is newsworthy because the original award totals $1.3 billion.
Posted at 07:20 by Howard Bashman



In Monday's newspapers: The New York Times reports that "After Second Nichols Trial, Frustration on Both Sides." In regional news, "Bench Players Are Mysteries in Black Robes." An editorial is entitled "The White House Hangs Up." And letters to the editor appear under the heading "Capital Punishment and Medical Ethics."

The Washington Post reports that "Radical Environmentalists Take Aim at Suburbia; Earth Liberation Front Frustrates Law Enforcement With Increasingly Destructive Campaign." In other news, "17-Year Wait for Justice Leaves Family Anguished and Broken; Md. Plans to Execute Triple Murderer This Week." An obituary is headlined "Ruth Gmeiner Frandsen, 85; 1st Woman to Cover High Court." An editorial is entitled "Flag (Burning) Day." And columnist Fred Hiatt has an op-ed entitled "The Consequences of Torture."

Finally, in The Christian Science Monitor, Warren Richey has an article headlined "A girls' team, a fired coach, and Title IX."
Posted at 06:50 by Howard Bashman



"Election holds key to court's direction": Detroit News columnist Deb Price today has this op-ed in that newspaper.
Posted at 06:49 by Howard Bashman



"Our banner deserves constitutional protection": U.S. Senator John Cornyn (R-TX) has this op-ed today in The Fort Worth Star-Telegram.
Posted at 06:46 by Howard Bashman



"O'Connor encourages graduates to build bridges for others": Stanford University's news service offers this report. The school also offers this transcript of Justice Sandra Day O'Connor's remarks yesterday and this video feed of her commencement address (Quick Time player required). In other coverage, The San Jose Mercury News today reports that "4,000 graduate from Stanford; Sandra Day O'Connor addresses students."
Posted at 06:35 by Howard Bashman



Sunday, June 13, 2004
"Soldier's defense team wants 100 witnesses from Cheney on down for Abu Graib case": The Pittsburgh Post-Gazette today contains this article.
Posted at 23:46 by Howard Bashman



"Wanted: Legal Superstars; Law Firms Aggressively Recruit Experts in Hot Specialties With Big Money, Prestige." This article will appear in Monday's edition of The Washington Post.
Posted at 23:35 by Howard Bashman



In Sunday's newspapers: In The New York Times, Adam Liptak reports that "Taping of Interrogations Is Praised by Police." In news from overseas, "With Gay Marriage, La Belle France Turns Conservative." In news from Connecticut, "Senate Considers Lawyers to Try Rowland if He Is Impeached" and "Two Lawyers, Trying to Put Connecticut's Governor Together Again." A wedding announcement entitled "Susan Kearns, Steven Engel" notes that the couple "met in 2000 when both were law clerks for Judge Kozinski. The following year, they were clerks at the Supreme Court, she for Associate Justice Antonin Scalia and the bridegroom for Associate Justice Anthony M. Kennedy." And letters to the editor appear under the headings "The Legal Memos About Torture" and "Wine and Commerce."

The Los Angeles Times reports that "Nichols Trial Has Ended, but Some Questions Remain; Some Oklahomans are glad that McVeigh's co-conspirator won't be executed, saying he can fill holes in the official story of the bombing." In other news, "Alcohol Cited as Problem at Prison; Officials at Abu Ghraib tried to rein in the illicit behavior before abuse of inmates surfaced." Law Professor Alan M. Dershowitz has an op-ed entitled "Stop Winking at Torture and Codify It; U.S. must decide which interrogation tactics are allowable and which aren't." Jamie Court has an op-ed entitled "Sued a Physician, Did You? The Doctor Won't See You Now; Ethics collapse over malpractice insurance cost." And letters to the editor appear under the headings "Separation of Church and L.A. County Seal" and "Tortured Interpretation of Geneva Convention."

The Washington Post reports that "Executions Carried Out To the Letter; In Baltimore, Killer's Death Set to Follow Detailed Plan." And Scott Turow has an op-ed entitled "Trial by News Conference? No Justice in That."

The Boston Globe reports that "Gay pride parade pays tribute to marriage." And an editorial is entitled "Rationalizing torture."

The Washington Times contains an editorial entitled "Defend America's heritage." And Dan K. Thomasson has an op-ed entitled "In legal limbo?"

Finally, OpinionJournal offers an editorial entitled "The Torture Canard: Treating terrorists with kid gloves won't protect American soldiers."
Posted at 23:16 by Howard Bashman



"Ex-chief justice begins new career; Veasey plans to keep busy after leaving bench": This article appears today in The News Journal of Wilmington, Delaware.
Posted at 22:13 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Doctor Proposes Not Treating Some Lawyers" and "Nichols' Lawyer: U.S. Torn by Executions."
Posted at 22:02 by Howard Bashman



Coming soon to a newsstand near you: The June 21, 2004 issue of Newsweek will contain articles headlined "A Tortured Debate: Amid feuding and turf battles, lawyers in the White House discussed specific terror-interrogation techniques like 'water-boarding' and 'mock burials'" and "Friends of Eliot (Sort of): The attorney general's fund-raising triggers new questions about conflicts of interest."

The June 21, 2004 issue of U.S. News & World Report will contain articles headlined "How the military treated some inmates at Abu Ghraib like 'ghosts'; Hiding a bad guy named triple X"; "More memos on torture bedevil the Bush team; Time bombs in the files"; and "A dissent from within the ranks."

Finally, the June 21, 2004 issue of Time magazine will contain an article headlined "Meet Joe Blog: Why are more and more people getting their news from amateur websites called blogs? Because they're fast, funny and totally biased."
Posted at 21:00 by Howard Bashman



"Appealing a Death Sentence Based on Future Danger": Adam Liptak will have this article in Monday's edition of The New York Times.
Posted at 20:51 by Howard Bashman



"Justice Dept. Memo Says Torture 'May Be Justified'": The Washington Post provides this news update and also offers access to the memorandum itself (50-page PDF document).

The news update reports that "the memorandum was signed by Jay S. Bybee, the head of the office at the time. Bybee's signature gives the document additional authority, making it akin to a binding legal opinion on government policy on interrogations. Bybee has since become a judge on the 9th U.S. Circuit Court of Appeals."
Posted at 20:37 by Howard Bashman



"Hill divided on flag defense": The Atlanta Journal-Constitution today contains an article that begins, "As America prepares to mark another Flag Day on Monday, Congress is girding for another legislative battle over a constitutional amendment to ban flag burning and other desecration of Old Glory."
Posted at 15:28 by Howard Bashman



In today's edition of The San Francisco Chronicle: An article reports that "Stanford law professor taking lead in 'enemy combatant' case." In coverage relating to the Scott Peterson trial, an article reports that "Media guilty of Monday-morning quarterbacking," while columnist Joan Ryan has an essay entitled "Trial taps Jekyll-Hyde fascination." Finally, a three-strikes-related editorial is entitled "California's cruel punishment."
Posted at 13:42 by Howard Bashman



On yesterday's broadcast of NPR's "Weekend Edition - Saturday": Yesterday's broadcast included segments entitled "Nichols Spared Death Penalty as Jury Deadlocks" and "The Legacy of the O.J. Simpson Case" (Real Player required).
Posted at 13:38 by Howard Bashman



"Memo opens torture questions": This article appears today in Newsday. The Washington Post contains a front page article headlined "A Look Behind the 'Wire' At Guantanamo; Defense Memos Raised Questions About Detainee Treatment as Red Cross Sought Changes." The Observer (U.K.) today reports that "Bush's secret justice hauled into the dock; The Supreme Court is expected to uphold civil liberties eroded by the 'war on terror.'" And in the current issue of The Village Voice, Nat Hentoff has an essay entitled "Hoaxing the Supreme Court; Padilla remains gagged, but justice department tells 'his' story."
Posted at 09:53 by Howard Bashman



"Appeals court reinstates petition drive against affirmative action": The Detroit Free Press provides this report. In other coverage, The Detroit News reports today that "Petition drive foes plan appeal; Affirmative action supporters say they'll fight to keep measure off November ballot." And The Ann Arbor News today reports that "Court rules language on anti-affirmative petitions is legal; Some doubt whether petition drive can meet deadline."
Posted at 09:48 by Howard Bashman



"8th Circuit gets change of venue; Federal judges from a seven-state region are coming to Duluth this week to hear appeals": The Duluth News Tribune contains this article today.
Posted at 09:46 by Howard Bashman



"Sex, lawyers, secrets at heart of sealed legal case": This article appears today in The San Antonio Express-News.
Posted at 09:44 by Howard Bashman



"L.A.'s name too divine?; 'Angels' reference may mean trouble." The Los Angeles Daily News today contains an article that begins, "No L.A.? It's no joke. A strong legal argument can be made that the name of the city of Los Angeles -- even worse its formal name, 'The Town of Our Lady the Queen of Angels of the Little Portion' -- violates the constitutional requirement for separation of church and state. Some constitutional law experts say the American Civil Liberties Union's campaign to remove a small cross from the Los Angeles County seal and similar efforts elsewhere in the country help build a foundation for challenges against communities like San Francisco, San Diego or Santa Barbara."
Posted at 09:33 by Howard Bashman



The Oklahoman is reporting: Today's newspaper contains articles headlined "Nichols case takes toll on jury"; "Prosecutor questions Nichols jurors' honesty"; "Visitors reflect on Nichols trial"; and "State wants Nichols to stay in Oklahoma."
Posted at 08:10 by Howard Bashman



"Cornyn reads for role of Torquemada": Columnist Cragg Hines has this essay today in The Houston Chronicle.
Posted at 08:08 by Howard Bashman



"Critics take aim at secret court": This article about the Foreign Intelligence Surveillance Court appears today in The Salt Lake Tribune.
Posted at 08:05 by Howard Bashman



"Reagan's influence is apparent in federal judiciary": Terry Eastland has this op-ed today in The Dallas Morning News.
Posted at 08:04 by Howard Bashman



"Justice dedicates new ABA building; Headquarters at old Quaker Oats site": This article appears today in The Chicago Tribune. And in related coverage, The Associated Press reports that "Justice Kennedy Urges Democracy Abroad."
Posted at 08:00 by Howard Bashman



Saturday, June 12, 2004
Elsewhere in Saturday's newspapers: The Los Angeles Times reports that "Nichols' Life Is Spared by Hung Jury; Sentencing impasse is declared by the judge in the Oklahoma City bombing case; Some survivors are glad to see the trial end and want to move on." An article is headlined "Johnnie Cochran, 10 Years On; The high-profile lawyer, who is fighting a serious illness, has struggled not to be defined by the O.J. Simpson case alone." In related news, "Simpson's Second Half; A decade after the slayings of Nicole Brown Simpson and Ronald Goldman, which many contend the football Hall of Famer committed, he has segued into another phase of his life." An article reports that "Blake's Former Lawyer Fined; A judge sanctions Thomas A. Mesereau Jr., who now represents Michael Jackson, for unprofessional conduct." In other regional news, "Man Tried 4 Times in Shooting Is Freed; Carlos Burns wins his release after an appeals court rules the final trial, in which he was convicted of attempted murder, was avoidable." And letters to the editor appear under the heading "The ACLU Tilts at the Sign of the Cross."

The Boston Globe reports that "At Abu Ghraib, US seeks to make things right." In other news, "Appeals Court ends 16-year backlog." An article reports that "Patriot Act is praised in mailing; US attorney steps up advocacy of 2001 law." And in other regional news, "Balancing children's safety and sex offenders' rights."

Finally, The Washington Times reports that "Gay activists target tourism."
Posted at 23:50 by Howard Bashman



"Supervisor will ask board to put seal issue on ballot": The Los Angeles Daily News today contains an article that begins, "As opponents make a third attempt to prevent removal of a small Christian cross on Los Angeles County's official seal, the Board of Supervisors will be asked Tuesday to let voters decide the issue." And The Pasadena Star News today contains an op-ed entitled "We can't let religion tiptoe into government" by Loretta Keller.
Posted at 23:45 by Howard Bashman



"Teflon Terry Nichols": CBS News analyst Andrew Cohen has this essay today.
Posted at 23:44 by Howard Bashman



Altoona Curve 8, Reading Phillies 4: What, two baseball games in one day? Indeed.
Posted at 23:40 by Howard Bashman



In Sunday's edition of The New York Times: The New York Times Magazine contains an article headlined "Commander Swift Objects." And in business news, "Need a Superlawyer? Take a Number."
Posted at 23:32 by Howard Bashman



"Damage-awards law tossed": The Salt Lake Tribune today contains an article that begins, "A judge on Friday struck down a law enabling the state to fatten its general fund by taking half of all punitive damage awards above $20,000 in civil lawsuits." And The Deseret Morning News today reports that "Utah's split-recovery law declared unconstitutional."
Posted at 16:20 by Howard Bashman



"Donated jet flight runs into squall": The Toledo Blade today contains an article that begins, "American Electric Power has refused to accept payment for flying U.S. Supreme Court Chief Justice William Rehnquist on its corporate jet to and from last month's dedication of the Ohio Supreme Court's new home. Use of the utility's jet to shuttle the chief justice between Washington and Columbus on May 15 at the request of the state court had already raised eyebrows among environmental groups. Word that the committee that planned the dedication donated the $3,800 budgeted for the flight to the American Red Cross did little to defuse the criticism."
Posted at 16:00 by Howard Bashman



"Amending the Constitution: a process that lets the people speak." U.S. Senator John Cornyn (R-TX) has this op-ed today in The Austin American-Statesman.
Posted at 15:54 by Howard Bashman



The San Francisco Chronicle is reporting: Today's newspaper contains articles headlined "Proposition to take DNA at arrest stirs privacy fears; Mandatory sampling on November ballot" and "Consolidate marriage lawsuits, council rules." And in yesterday's newspaper, Bob Egelko had articles headlined "Conviction set aside in tax case; IRS agents accused of glaring at jurors" and "Strip-search litigation against jail gets judge's approval; Class-action status allows inmates to seek damages."
Posted at 15:48 by Howard Bashman



"U of I community welcomes verdict in Al-Hussayen trial": The Idaho Statesman today contains this report from The Associated Press.
Posted at 15:44 by Howard Bashman



The Oklahoman is reporting: Today's newspaper contains articles headlined "Nichols avoids death penalty"; "Judge commends jury despite its impasse"; "Defense bills fatten price tag"; and "Missive to son near admission of bombing role."
Posted at 15:41 by Howard Bashman



In Saturday's newspapers: The New York Times reports that "Killing of Officer Stirs Death Penalty Debate." In news from the U.S. Court of Appeals for the Ninth Circuit, "Hearing Ordered on Charge That I.R.S. Influenced Jury" (plus, access Thursday's Ninth Circuit ruling at this link). And in regional news, "2 Declarations by bin Laden May Be Used in Stewart Trial"; "Police and Court Officers Call for Justice's Removal From the Bench"; "For Lawyers in Rowland's Case, Impeachment Is a Lesser Concern"; "Amid Scrutiny, Intrigue Envelops Rowland Friend"; and "Parenthood Is Redefined, but Custody Battles Remain Ugly."

The Washington Post reports that "Nichols Is Spared Death Penalty Again." And in other news, "General Granted Latitude At Prison; Abu Ghraib Used Aggressive Tactics."
Posted at 14:40 by Howard Bashman



"O'Connor pays tribute to the man who surprised her, nation": The Arizona Republic today contains an article that begins, "As the State Bar of Arizona met to honor her Friday evening, Sandra Day O'Connor took a moment to honor President Reagan, the man who made her the first woman justice of the U.S. Supreme Court in 1981." In other coverage, The East Valley Tribune reports that "State bar salutes O'Connor." And The Associated Press reports that "O'Connor Thanks Reagan in Award Ceremony."
Posted at 14:35 by Howard Bashman



"Bush should fill vacant court seat": The Hattiesburg American today contains this editorial.
Posted at 14:30 by Howard Bashman



"Sacramento atheist wins $1 million Web libel judgment": This article appears today in The San Francisco Chronicle.
Posted at 14:29 by Howard Bashman



"Diversity Plan Shaped in Texas Is Under Attack": Sunday's issue of The New York Times will contain this article.
Posted at 14:20 by Howard Bashman



On the agenda: In just over two hours from now, my son's little league baseball team plays in the championship game of the season-ending tournament. The opposing team is quite good, so it should be an exciting game. After Thursday's semifinal game, my son learned that he was one of two kids in his grade selected by the players on his team to be in Monday evening's All Star game. An update will follow later.

Update: The players on my son's team received the runner-up trophies, as the opposing team won today's very well-played game by a score of 6-2.
Posted at 08:42 by Howard Bashman



Friday, June 11, 2004
Elsewhere in Thursday's and Friday's newspapers: In USA Today, Joan Biskupic on Thursday reported that "Mark on judiciary to endure for years; Legacy is evident in Supreme Court." An article reported that "Surveillance gets a satellite assist; Police, courts still sorting out legality of using GPS to track suspects." In other news, "Ordering liquor online sets off legal challenges; Teens' access a worry; wineries promote sales." An article reported that "Lawyers raised concerns on interrogations; Methods in Cuba were questioned." On Friday, the newspaper reported that "Document warns Guantanamo employees not to talk." And in somewhat related news, "Guantanamo captive faces military tribunal; Australian's charges include conspiracy, attempted murder."

The Boston Globe on Thursday reported that "Court sides with Red Sox in foul-ball injury lawsuit" (plus, you can access Wednesday's ruling of the Appeals Court of Massachusetts at this link.) In other news, "Suit alleges abuse linked to 2 firms." An article was headlined "Long road to vindication; Andover teen fought bomb threat allegation for 5 years." In other news, "Trial underway in 2002 traffic death of former Iran hostage." And an article reported that "Menino to fight pickets in court; Wants the way cleared for FleetCenter work." On Friday, the newspaper reported that "Judge orders picket lines to clear way at FleetCenter; US marshals are dispatched to the arena."

The Los Angeles Times on Friday reported that "Acquittal in Internet Terrorism Case Is a Defeat for Patriot Act; The Saudi computer student was expressing his views under 1st Amendment, his lawyer says; The jury returns six not-guilty verdicts." In other news, "Stewart Asks Judge to Void Her Conviction; Attorneys seek a new trial because of alleged perjury by a key government witness." In news relating to the war on terror, "Australian to Face U.S. Military Tribunal on Terrorism Charges" and "Pentagon to Broaden Its Abuse Inquiry; A four-star general is expected to take over to allow the questioning of high-ranking officers." An article reported that "Judge Rejects Bryant Motion; His attorneys wanted Colorado's rape-shield law overturned; Ruling doesn't affect whether accuser's sexual history will be barred in trial." In business news, "FCC Plans Rewrite of Phone Rules; Chairman Michael Powell says that revising the regulations on leasing local networks is at the top of his agenda." And letters to the editor appear under the heading "They'll Roam the Land in a Cloud of Smoke." On Thursday, the newspaper reported that "Bush Sides With Bells; The administration and the FCC don't seek Supreme Court review of the phone rules; Rivals plan to appeal." In news relating to the war on terror, "Lawyers Ascribed Broad Power to Bush on Torture; In a memo dated weeks after the invasion of Iraq, administration counsel said the president's authority superceded Congress'" and "Ex-Detainees Sue 2 U.S. Contractors; Employees of Titan and CACI are accused of torturing prisoners. Lawyers say the action is based on a military report on abuse." In news from high-profile criminal trials, "Alleged O.C. Gang-Rape Victim Called Act Consensual, Doctor Says" and "Defense Criticizes Detectives." And a letter to the editor appeared under the heading "They Argued for Torture."

The Washington Times on Friday reported that "U.S. charges Guantanamo Bay detainee." In somewhat related news, "Sanchez removes self from inquiry on abuse." An article reported that "Ex-Tyson workers can seek damages." And on Thursday, an article reported that "Court rejects delay of execution."
Posted at 23:50 by Howard Bashman



Available online from law.com: Tony Mauro has an article headlined "Reagan's Legacy: A Transformed Judiciary." And Law Professor Stephen Gillers has an essay entitled "Tortured Reasoning: DOJ attorneys who advised the White House on military prisoner policy bear responsibility for the abuse scandals."
Posted at 23:36 by Howard Bashman



"Sex case pits library against cops; In Naperville, librarians cite state law--and the Constitution--in forcing police to get a court order before releasing the identity of a man accused of looking at Internet porn": This article appears today in The Chicago Tribune.
Posted at 23:28 by Howard Bashman



On this evening's broadcast of NPR's "All Things Considered": The broadcast contained segments entitled "Military Investigates Itself in Prisoner Abuse Probes"; "Use of Dogs as Tools for Interrogation"; and "Improvements to Abu Ghraib Prison Follow Abuse Scandal" (Real Player required).
Posted at 23:22 by Howard Bashman



What more can a law blogger aspire to accomplish? I am pleased to report that "How Appealing" has been archived by the Library of Congress (see here and here). But seriously, the good news is that a whole bunch of blogs have been included, as you can see at this link.
Posted at 21:04 by Howard Bashman



"Jury deadlocks in Oklahoma City bombing conspirator Terry Nichols' trial, taking death penalty off the table": CNN.com is reporting this in a breaking news banner. And The Associated Press reports that "Nichols' Jury Said to Be at Impasse."

Update: The AP is now confirming that "Nichols Spared Death As Jury Deadlocks."
Posted at 20:51 by Howard Bashman



The Richmond Times-Dispatch is reporting: Today's newspaper reports that "Prison grooming case to proceed; Courts will weigh the case of 5 inmates who ask to grow their hair." And yesterday's newspaper reported that "2nd trial date for sniper set; John Allen Muhammad will face capital murder charges in Fairfax County on June 22."
Posted at 17:39 by Howard Bashman



"Waving vs. burning": Yesterday's issue of The Fort Worth Star-Telegram contained an editorial that begins, "U.S. Sen. John Cornyn was ahead of schedule this year with his announced support of a constitutional amendment prohibiting the desecration of Old Glory."
Posted at 17:33 by Howard Bashman



In news from New Jersey: The Newark Star-Ledger reports today that "Senate confirms Rivera-Soto as a justice; Legislators praise legal ability and intellect of first Hispanic to gain seat on high court." And The Courier-Post of Cherry Hill, New Jersey reports that "Rivera-Soto unanimously approved; Haddonfield man will become 1st Hispanic judge on Supreme Court."
Posted at 17:24 by Howard Bashman



"Trial date set for Diaz, ex-wife; Justice among five people facing fraud, bribery charges": The Clarion-Ledger of Jackson, Mississippi today contains an article that begins, "Justice Oliver Diaz Jr. and his ex-wife will go on trial Aug. 16, a federal judge ruled Thursday, rejecting defense arguments the indictment against them is a 'joke.'"
Posted at 17:21 by Howard Bashman



Potentially important news for the U.S. Court of Appeals for the Sixth Circuit -- "Deal may end deadlock over court's judges": Detroit Free Press columnist Brian Dickerson today has this essay. In addition to the deal that Dickerson describes, he also notes that "Hatch has scheduled hearings next Wednesday for Bush's two other Michigan nominees to the 6th Circuit Court -- U.S. District Judge David McKeague and Michigan Court of Appeals Judge Richard Griffin."
Posted at 17:03 by Howard Bashman



"Spate of military cases results in scrutiny; Public gets view of justice system": This article appears today in The News & Observer of Raleigh, North Carolina.
Posted at 16:09 by Howard Bashman



"Torture memo puts focus on Nevada judge": This article appeared Thursday in The Las Vegas Review-Journal.

Somewhat relatedly, yesterday's issue of USA Today contained an op-ed entitled "Terrorists are different" by White House Counsel Alberto R. Gonzales.
Posted at 15:30 by Howard Bashman



"Justice Sandra Day O'Connor reads at Reagan's funeral": An ABC News affiliate provides this report and this video clip (Windows Media Player required).
Posted at 13:46 by Howard Bashman



The Los Angeles Times is reporting: In today's newspaper, David G. Savage reports that "Rehnquist Panel Embarks on Judicial Conduct Review; The committee will gather data on complaints and how they're handled, and make recommendations." And in other news, "Debate Over Crosses on City Seals Hits a Nerve" and "Payoff: Supreme validation."
Posted at 13:22 by Howard Bashman



Ten Commandments news: The Daily Herald of Everett, Washington reports today that "Everett turns down help with monument fight." The article begins, "City officials have turned down an offer by a conservative Virginia group founded by the Rev. Pat Robertson to pay for Everett's legal defense of its Ten Commandments monument."

And yesterday's edition of The Evening Sun of Hanover, Pennsylvania reported that "Group helping to keep memorial; Hanover association gives $1,000 for fight to keep Ten Commandments monument."
Posted at 12:45 by Howard Bashman



"Newdow wins $1 million libel award; But the man who brought the pledge dispute to the Supreme Court may have a hard time collecting": Claire Cooper, legal affairs writer for The Sacramento Bee, today has this report in that newspaper.
Posted at 12:44 by Howard Bashman



Perhaps this explains why the Sixth Circuit's Web site contains no mention of that court's closure today: Last night I posted here about how various federal appellate courts have used their Web sites to communicate information about being closed for business today. I noted that the Sixth Circuit's site contained no statement about that court's being closed for business today. And, in fact, that court today has issued a pair of published opinions, including this interesting decision involving a criminal conviction for violation of the federal cyberstalking statute.
Posted at 11:13 by Howard Bashman



"With 'All Necessary and Appropriate Force'; In interrogations, U.S. actions align with treaties and Congress' wishes": Law Professor John C. Yoo has this op-ed today in The Los Angeles Times.
Posted at 11:10 by Howard Bashman



"Sacramento atheist wins $1 million in libel dispute": This article appears today in The Contra Costa Times.
Posted at 07:30 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Rehnquist Panel Launches Judicial Review." And in other news, "Man Who Opposes 'God' in Pledge Gets $1M"; "Conn. Court to Decide Rowland Testimony"; "Ohio High Court Must Decide Baby's Fate"; "Va. Death-Row Woman Says Sentence Unfair"; "Nichols Jury Deliberations Enter Third Day"; "Lawyer: Brothers in Terror Trial Confused"; and "Judge Reverses Anti-Terror Law Decision."
Posted at 07:20 by Howard Bashman



In Friday's newspapers: The New York Times reports that "U.S. Charges an Australian With Fighting for Taliban." In business news, "Martha Stewart's Legal Team Requests a New Trial"; "Long-Distance Carriers Take a Blow, but It's No Knockout"; and "States' Big Role in Phone Rates May Be Only a Cameo." An article reports that "Rape Shield Law Will Be Applied in Bryant Case, Judge Says." In regional news, "Panel Looking at Financing of Book by Rowland's Wife" and "Judge Helps Defendant Elude a Detective Waiting in the Hall to Arrest Him." An article reports that "Marshals to Oversee Pickets at Boston Convention Site." And an editorial is entitled "A Troubling Dissent."

The Washington Post reports that "Saudi Acquitted of Internet Terror; Defense Hails Verdict on Islamic Sites as Victory for Free Speech." In other news relating to the war on terror, "Bush: U.S. Expected to Follow Law On Prisoners; President Is Pressed On Interrogations Memo"; "Use of Dogs to Scare Prisoners Was Authorized; Military Intelligence Personnel Were Involved, Handlers Say"; "3 Charges Placed Against Detainee; Trial by Tribunal Expected"; "Pentagon Reinforces Policy for Reporting Deaths of Detainees"; and "Remote Facility in Iraq Shows New Face of U.S. Prison System." In business news, "Phone Firms Appeal Over Local Access; MCI, AT&T and Others Go to Supreme Court" and "Stewart Again Asks Judge for A New Trial; Perjury Charge Against Expert Witness Is Cited." In sports, "Legal Battles Are Looming; USADA, U.S. Athletes Could Square Off This Summer." An article reports that "Marshals to Monitor Boston Standoff; Labor Dispute Interrupts Construction at Democratic Convention Site." And letters to the editor appear under the heading "Mr. Ashcroft and the Memos on Torture."

Finally, The Christian Science Monitor reports on "The newest prison contraband: cellphones."
Posted at 06:40 by Howard Bashman



"Objection to judge's appointment rebuffed": The Atlanta Journal-Constitution today contains an article that begins, "The federal appeals court in Atlanta on Thursday turned aside a challenge by U.S. Sen. Edward Kennedy (D-Mass.) to the controversial appointment of Judge Bill Pryor to the bench."
Posted at 06:33 by Howard Bashman



The Idaho Statesman is reporting: Today's newspaper contains articles headlined "Sami Al-Hussayen not guilty of aiding terrorist groups; Some charges tossed out after jurors deadlock"; "Six weeks of testimony fail to sway jury on terror charges; Juror: Prosecutors 'just bounced from issue to issue'"; "Al-Hussayen trial raises varied issues, concerns"; and "Al-Hussayen still in jail on deportation order."
Posted at 06:30 by Howard Bashman



Thursday, June 10, 2004
Some federal appellate courts use their Web sites to announce that court will be closed on Friday, June 11, 2004 for the National Day of Mourning to honor the memory of former President Ronald Reagan: Special praise is due for those federal appellate courts that have announced on their Web sites not only that they will be closed on June 11th, but also why and what effect the closure will have on the deadline for documents originally due on that date. The federal appellate courts that deserve this greatest amount of praise are the First Circuit, the Second Circuit (read the scroll bar), and the Eighth Circuit.

Into a second, somewhat less praiseworthy category fall those federal appellate courts that have announced tomorrow's closing online, and the reason for it, but that have provided no statement describing the impact of the closing on due dates. Into this second category fall the Fifth Circuit (see here and here); the Tenth Circuit, and the Federal Circuit.

The Ninth Circuit, as is often the case, stands alone. Its notice of closure excludes "proceedings that are already set and cannot be rescheduled." (Who says that the Ninth Circuit isn't so large as to be unwieldy?) Also, its notice affirmatively directs readers to determine for themselves the impact of the closure on due dates, citing to a particular Federal Rule of Appellate Procedure that presumably contains the answer.

Next are those federal appellate courts that have announced their closing for tomorrow without any explanation of why or the impact on the deadline for filings otherwise due tomorrow. Into this category fall the U.S. Supreme Court (which, like the Ninth Circuit, direct the reader to a rule governing calculation of deadlines) and the Fourth Circuit.

Finally, five federal appellate courts have no mention of any closure tomorrow posted on their Web sites. These five are the Third Circuit, the Sixth Circuit, the Seventh Circuit, the Eleventh Circuit, and the D.C. Circuit. I'll call these the "Don't ask, don't tell" circuits, in honor of the Third Circuit's upcoming consideration of the Solomon Amendment appeal.
Posted at 22:33 by Howard Bashman



"Kennedy's Last-Ditch Effort to Block Pryor Fails; 11th Circuit says senator's amicus brief arrived too late for consideration": Jonathan Ringel will have this article in tomorrow's edition of The Fulton County Daily Report. Ringel's article reports:
Kennedy, who graduated from the University of Virginia School of Law three years before his 1962 election to the Senate, filed the brief pro se but listed Harvard University Professor Laurence H. Tribe, former federal judge William A. Norris and Supreme Court experts Thomas C. Goldstein and Edward P. Lazarus, among others, as of counsel.
And FOXNews.com reports that "Kennedy Denied Petition Against Pryor Judgeship." I first reported news of the Eleventh Circuit's action today in a post you can access here.

In somewhat related coverage, The Decatur Daily reports today that "Pryor pens first decision; workers lose." And The Associated Press reports that "FedEx employees lose in Pryor's first 11th Circuit ruling."
Posted at 22:22 by Howard Bashman



Available online from National Public Radio: Today's broadcast of "Talk of the Nation" contained segments entitled "Torture Memos" (featuring both The Wall Street Journal reporter who broke the story and Law Professor Douglas W. Kmiec) and "Friends with Benefits" (featuring the author of the cover story that appeared in The New York Times Magazine two Sundays ago about teen sex).

And this evening's broadcast of "All Things Considered" contained segments entitled "Saudi Declared Innocent in U.S. Terror Trial"; "Pentagon Adopts New Rules on Detainee Deaths"; and "General Asks to Be Replaced in Iraqi Prison Inquiry."
Posted at 21:09 by Howard Bashman



"Cooking Up Excuses With the Pentagon: How to torture alleged terrorists and get away with it." Slate has just posted online this jurisprudence essay by Phillip Carter, whose blog you can access here.
Posted at 16:54 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Supreme Court Asked to Uphold Phone Rules"; "Bush: Officials Told to Stay Within Law"; and "Mayor Cleared of Gay-Marriage Charges."
Posted at 16:45 by Howard Bashman



"Court Rules Israel Spy Can Continue Appeal": Anne Gearan of The Associated Press provides this report.
Posted at 16:14 by Howard Bashman



"Three-strikes" in its current form poised to strike out with California voters: The Orange County Register reports today that "Most want '3 strikes' reform, poll shows." The San Francisco Chronicle reports that "Public ready to soften '3-strikes' law." The Sacramento Bee contains an article headlined "Field poll: Support for easing '3-strikes.'" The San Diego Union-Tribune reports that "Poll finds broad support for limits on '3 strikes' law." And in The San Jose Mercury News, Howard Mintz reports that "'3 strikes' reform favored; Majority of voters want to ease law for repeat offenders, Field poll finds."
Posted at 16:04 by Howard Bashman



"Titan named in suit over Iraqi prisoner treatment": This article appears today in The San Diego Union-Tribune.
Posted at 16:02 by Howard Bashman



"Facing Defeat? Justice Department lawyers, said to be pessimistic about winning upcoming Supreme Court cases on enemy combatants and Guantanamo prisoners, are now scrambling to bring a case against alleged 'dirty bomber' Jose Padilla": Michael Isikoff and Mark Hosenball have this article online at Newsweek magazine's Web site.
Posted at 15:59 by Howard Bashman



"Frozen-sperm kids" win on appeal: I congratulate The Associated Press on the audacious headline it used to report on this ruling that the U.S. Court of Appeals for the Ninth Circuit issued yesterday. Now if only the case had involved sperm that had been FedEx-ed from prison.

In other coverage, Bob Egelko reports today in The San Francisco Chronicle that "Dead dad's benefits awarded to test tube twins; Ruling helps bring law up to date with high-tech births." Henry Weinstein reports today in The Los Angeles Times that "In Vitro Twins Eligible for Aid; Court rules that a child conceived after death of father can receive Social Security benefits." And The East Valley (Ariz.) Tribune reports today that "Court tosses benefits ruling."
Posted at 15:46 by Howard Bashman



Eleventh Circuit says "Thanks but no thanks" to Senator Edward M. Kennedy (D-MA): I am reliably advised that the U.S. Court of Appeals for the Eleventh Circuit has denied Senator Kennedy's request (detailed here by FOXNews.com), in a deportation case being reheard en banc, to file an amicus brief challenging the legality of Circuit Judge William H. Pryor, Jr.'s recess appointment to that court.
Posted at 14:33 by Howard Bashman



"Al-Hussayen not guilty on terrorism charges; jury deadlocks on others": The Idaho Statesman provides this news update. And The Associated Press reports that "Saudi Cleared of Terror Charges in Idaho."
Posted at 14:27 by Howard Bashman



Upcoming speaking engagements: On the morning of Friday, August 6, 2004, I will be part of a panel that will be making a presentation in Pittsburgh, Pennsylvania at the annual Conference of Court Public Information Officers. You can access the surprisingly interesting draft agenda at this link.

And on the afternoon of Thursday, November 11, 2004 in New York City, I will have the pleasure of speaking at an Appellate Advocacy Seminar organized by DRI. It's quite an honor to be included among the stellar group of speakers (access the complete program here) who will be participating in this seminar.
Posted at 14:10 by Howard Bashman



"Australian Charged for al-Qaida Links": The Associated Press reports here that "David Hicks, an Australian held at the U.S. naval prison at Guantanamo Bay, Cuba, has been charged with conspiring with al-Qaida in Afghanistan, the Pentagon announced Thursday." You can access at this link the press release that the United States Department of Defense issued today, and a copy of the charges is available here.
Posted at 13:58 by Howard Bashman



"Memo shows administration claimed right to ignore treaties, laws": Frank Davies of Knight Ridder Newspapers provides this report.
Posted at 12:30 by Howard Bashman



"Man Who Beheaded His Dog Is Ruled Sane": The Los Angeles Times today contains an article that begins, "An Orange County judge declared Wednesday that a La Habra man was sane when he beheaded his German shepherd, making the third-striker eligible for a life term in prison."
Posted at 12:21 by Howard Bashman



"Justices to rule on lesbian forced to pay to golf at club": The San Diego Union-Tribune today contains an article that begins, "The state Supreme Court will decide whether a North County country club violated the civil rights of a member whose lesbian partner was required to pay to play golf at the club. The state Supreme Court decided 7-0 yesterday to decide the case, in which member Birgit Koebke sued the Bernardo Heights Country Club, saying the club required her lesbian partner to pay guest fees even though the club allows married spouses of other members to play for free." And Bob Egelko of The San Francisco Chronicle reports today that "High court takes gay-rights case on club bias." Earlier, The Associated Press previewed the case in an article headlined "Lesbian couple wants San Diego country club to treat them as spouses."
Posted at 12:05 by Howard Bashman



"New York suit against Microsoft can continue": Declan McCullagh of c|net News.Com reports here that "A New York state appeals court has rejected Microsoft's attempt to throw out a class-action suit alleging deceptive and monopolistic business practices." You can access Tuesday's ruling of the New York State Supreme Court, Appellate Division, First Department at this link.
Posted at 11:41 by Howard Bashman



"Court delays decision on beef checkoff": The Billings Gazette today contains an article that begins, "The 9th U.S. Circuit Court of Appeals has decided to wait for a ruling from the U.S. Supreme Court on a national beef checkoff case from South Dakota before deciding a similar case from Montana."
Posted at 11:11 by Howard Bashman



"Court decides $79.5 million award against tobacco giant is right sum; After weighing a U.S. high court ruling, an Oregon appellate panel stands behind the original verdict against Philip Morris": This article appears today in The Oregonian.
Posted at 10:54 by Howard Bashman



"O'Connor: 'A Remarkable President.'" Yesterday's broadcast of the CBS News program "60 Minutes II" included an interview with Justice Sandra Day O'Connor. You can read about the interview at this link, and you can view the interview by clicking here (Real Player required).
Posted at 10:35 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": This morning's broadcast contained segments entitled "In Win for Bells, Bush Won't Appeal Phone Ruling"; "Suit Alleges Contractors Conspired in Iraq Prison Abuse"; "GI Says Fellow Soldiers Beat Him in Cuba Prison"; and "Doctor Seeks Waiver from Treating Malpractice Lawyers" (Real Player required).
Posted at 10:20 by Howard Bashman



"Omaha changes pool dress code after Muslim files lawsuit": This article appears today in The Omaha World-Herald. And yesterday the American Civil Liberties Union filed a press release entitled "ACLU Nebraska Files Lawsuit on Behalf of Muslim Woman Barred from Public Pool Because She Refused to Wear a Swim Suit; Mother Was Told She Must Remove Religious Garb or Leave Young Children Unattended."
Posted at 10:17 by Howard Bashman



In news and commentary from Alabama: The Mobile Register today reports that "Stuart says judges often make rulings they don't like; Supreme Court justice tells USA class she's disappointed Ten Commandments became campaign issue." And The Montgomery Advertiser today contains an editorial entitled "Moore continues bogus argument."
Posted at 08:44 by Howard Bashman



"Appeals court hears case of veiled woman denied license": This article appears today in The Orlando Sentinel. And The AP reports that "Muslim Appeals Fla. Veil Ban in Photos."
Posted at 08:42 by Howard Bashman



"Scientists Say Dirty Bomb Would Be a Dud": The Associated Press reports here that "The 'dirty bomb' allegedly planned by terror suspect Jose Padilla would have been a dud, not the radiological threat portrayed last week by federal authorities, scientists say."
Posted at 08:41 by Howard Bashman



"Case backlog swells in judgeless district; Post has been vacant since Pickering filled appeals court seat in Jan": This article appears today in The Clarion-Ledger of Jackson, Mississippi.
Posted at 08:38 by Howard Bashman



"Kennedy Seeks Ruling Against Pryor Judgeship": FOXNews.com offers this report.
Posted at 08:32 by Howard Bashman



"Underneath Their Robes: News, gossip, and colorful commentary about the federal judiciary." Some readers may find this new blog to be humorous, albeit in a quite irreverent way. I for one condemn any blog that would compare three filibustered U.S. Courts of Appeals nominees to "Charlie's Angels" or would refer to Justice Antonin Scalia, based on his recently-released financial disclosure forms, as "Scrooge McDuck."
Posted at 08:00 by Howard Bashman



In Thursday's newspapers: In The New York Times, Adam Liptak has an article headlined "Should Doctors Help With Executions? No Easy Ethical Answer." An article reports that "In Pivotal Case, Bush Backs Off Rule That Eased Phone Line Fees." In news related to the war on terror, "Higher-Ranking Officer Is Sought to Lead the Abu Ghraib Inquiry" and "Ex-Detainees Sue Companies for Their Role in Abuse Case." An article reports that "Peterson Relative Says He Noticed Inconsistencies." In regional news, "Lyrical Judge Praises Eminem in Lyrics Fight"; "Transit Rules? Scratch Head, Covered or Not"; and "Legal Aid President Resigns, Citing Deficit." Jonathan D. Tepperman has an op-ed entitled "An American in The Hague?" And M. Gregg Bloche has an op-ed entitled "Physician, Turn Thyself In."

The Washington Post reports that "Guantanamo List Details Approved Interrogation Methods." In related news, "Detainees' Medical Files Shared; Guantanamo Interrogators' Access Criticized" and "CACI and Titan Sued Over Iraq Operations; Legal Center Representing Prisoners." In business news, "Local Phone Service Rules Left to Expire"; "Another Spitzer Lawyer Bolts for New Job on Wall Street"; and "Showdown With The Linux Gang; One Company's Lawsuits Challenge Open-Source Code." And columnist Richard Cohen has an op-ed entitled "A Plunge From the Moral Heights."

Finally, The Christian Science Monitor contains an article headlined "Reading, writing, and ... war?"
Posted at 07:00 by Howard Bashman



"Hatch fires back at his conservative critics": The Hill today contains an article that begins, "Sen. Orrin Hatch (R-Utah), the chairman of the Senate Judiciary Committee, is firing back at conservative critics on and off the Hill who have lambasted him for not moving more judicial nominees out of his committee."
Posted at 06:57 by Howard Bashman



"Al-Hussayen jury seeks advice; Jurors have decided some charges, seek judge's guidance on others": This article appears today in The Idaho Statesman.
Posted at 06:55 by Howard Bashman



Wednesday, June 09, 2004
Elsewhere in Wednesday's newspapers: The Washington Times reports that "Hatch favoritism worries GOP." In other news, "Ashcroft rebuffs Senate questions." And Steve Chapman has an op-ed entitled "A new cut on bias."

The Los Angeles Times reports that "Ashcroft Grilled Over Memos About Torture; Critics say the internal documents may have contributed to the abuse of prisoners of war; The attorney general refuses to discuss them in detail." In other news, "Nichols' Fate Going to the Jury; The panel now has to decide whether the convicted Oklahoma City bomber should die." In business news, "Microsoft Appeals Antitrust Ruling; The software giant asks a European court to void a fine imposed by the EC as well as curbs on how the firm does business." In regional news, "Rape Trial Testimony: Girl Looked Conscious; In the case against a sheriff official's son and two others, a neurologist interprets video footage" and "Alleged Rape by Marine Detailed; The 18-year-old woman testifies as the recruiter's court-martial begins; His military defender maintains the sex was consensual." Wine columnist David Shaw has an essay entitled "The wine shipping news." Law Professor Jonathan Turley has an op-ed entitled "A Bit Too Early for Sainthood." Law Professor Allen S. Weiner has an op-ed entitled "It's the Law -- Even in War; The U.S. must abide by the Geneva Convention because compliance is in its interest -- and because it's right." And columnist Patt Morrison has an op-ed entitled "When Juicy Gossip Got a New Meaning; Ten years ago, O.J. Simpson made infamy culturally respectable."

Finally, The Boston Globe reports that "Ashcroft condemns torture; But won't give details of memos some say sanctioned practice." And Robert Kuttner has an op-ed entitled "The torturers among us."
Posted at 23:44 by Howard Bashman



Yesterday's developments in the Scott Peterson trial: The San Mateo County Times reports that "Family details Scott's Xmas distance; Stepfather warned him to come clean if he had a girlfriend" and "Frey's dad leaps into the fray." The San Jose Mercury News reports that "Witnesses air suspicions; Defense strives to show that man loved his wife." The San Francisco Chronicle reports that "Suspect's behavior described." And The Modesto Bee reports that "Witnesses recount comments."
Posted at 23:05 by Howard Bashman



Available online from law.com: An article reports that "Justices Asked to Broaden Anti-Bias Law; High court to consider Title IX case that would ban retaliation against those who complain about sexual discrimination." In news from New York, "Discharged Firm May Still Seek Recovery; Ruling denying recovery in contingency case is reversed." And Shannon P. Duffy reports that "Contractors Sued Over Abu Ghraib Abuses."
Posted at 22:55 by Howard Bashman



"Justices question doctors' proposal; A proposal by physicians to punish trial lawyers by limiting the money they collect in medical malpractice cases provoked sharp questions from the Florida Supreme Court": This article appears today in The Miami Herald.
Posted at 22:54 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Court Declines to Postpone Md. Execution"; "Convicted Sniper Muhammad to Be Arraigned"; "Mich. Lawmakers OK Ban on Abortion Method"; "Jury: Partial Verdict in Idaho Terror Case"; "La. Senate Approves Gay Marriage Ban Plan"; "Omaha, Neb., Sued Over Muslim Woman's Garb"; and "Panel Recommends $125M for Guam Victims."
Posted at 22:44 by Howard Bashman



"Harper unveils plan to change judiciary; His path narrows scope of judges to interpret Charter; Wants courts that apply the law, not their own criteria": The Toronto Star today contains an article that begins, "The role of the Supreme Court of Canada would be substantially altered under a government led by Conservative Leader Stephen Harper, with judges selected for their willingness to adhere to the legislated views of elected MPs."
Posted at 22:38 by Howard Bashman



Twenty-two to go: Northwestern University's Medill School of Journalism offers this list of the twenty-two argued cases that the U.S. Supreme Court has yet to decide this Term. I for one miss the quite useful list that Mayer, Brown & Whateveritisnow used to post to the Web each week (click here for the most recent example available online, from the close of the October 2002 Term).
Posted at 22:30 by Howard Bashman



"Grim regimen awaits Lea Fastow in detention": This article appears today in The Houston Chronicle.
Posted at 22:23 by Howard Bashman



"Memos on Torture Conflict with Bush Legal Policies": NPR's Nina Totenberg had this report (Real Player required) on this evening's broadcast of "All Things Considered."
Posted at 21:05 by Howard Bashman



"We Won't Get O.J.-ed Again: How could we have been so stupid?" Dahlia Lithwick this evening has this jurisprudence essay online at Slate.
Posted at 21:00 by Howard Bashman



In Thursday's issue of The Christian Science Monitor: Tomorrow's newspaper will contain articles headlined "Bush team and the limits on torture; Recently disclosed memos justified harsh treatment in principle" and "What went wrong at Abu Ghraib; A top-down push for harsh interrogation techniques comes to light, as investigations into Iraqi prisoner abuse continue."
Posted at 17:50 by Howard Bashman



"Judges shouldn't legislate": Columnist Al Knight has this essay today in The Denver Post.
Posted at 17:40 by Howard Bashman



"A question of age, a matter of justice": This quite interesting article appears today in The Seattle Times.
Posted at 17:38 by Howard Bashman



"Torture" and "Trashing Justice": These posts from "The Right Coast" and "IsThatLegal?" blogs are well worth a look.
Posted at 17:30 by Howard Bashman



"A man cannot be a woman in Missouri politics." So begins a report from The Associated Press on a decision that the Supreme Court of Missouri issued yesterday.

The decision itself begins:
Christian D. Tompras attempted to file for election as a St. Louis County township committeewoman. The director of elections refused to accept the filing as Tompras was a male. Tompras sued, seeking a declaratory judgment that section 115.607 and all other laws in chapter 115 that exclude potential candidates from filing for, running for, or holding elected office based on their gender are unconstitutional.
Missouri's highest court unanimously rejected that argument and denied relief to the plaintiff.
Posted at 17:22 by Howard Bashman



"Connecticut Governor Moves Closer to Impeachment": Today's broadcast of NPR's "Day to Day" included this report (Real Player required).
Posted at 17:04 by Howard Bashman



"Court reinstates $80 million tobacco judgment": The Associated Press provides this report. The defendant has issued a press release entitled "Oregon Appeals Court Reinstates Punitive Award in Smoker's Case; Philip Morris USA Will Appeal to Oregon Supreme Court and Seek New Trial" and also provides access to its earlier press releases relating to this case.
Posted at 16:48 by Howard Bashman



"Doing Newdow Justice: The case for Court consistency." Vincent Phillip Munoz today has this essay at National Review Online.
Posted at 16:25 by Howard Bashman



In news from Michigan: Booth Newspapers today report that "Appeals panel hears arguments in affirmative action case." And The Detroit News yesterday reported that "Terror trial prosecutor faces criminal probe."
Posted at 15:54 by Howard Bashman



"Olson Won't Appeal to Reinstate FCC Rule": The Associated Press has issued a report that begins, "In a setback for federal regulators, U.S. Solicitor General Theodore Olson has decided against an appeal to the Supreme Court to revive new rules aimed at increasing competition for local telephone service, according to the Federal Communications Commission."
Posted at 15:10 by Howard Bashman



"CCR Files Lawsuit Against Private Contractors For Torture Conspiracy; Charges U.S. Corporations Conspired With Officials To Torture Detainees in Iraq": The Center for Constitutional Rights issued this press release today, and you can access a copy of the complaint filed in court today at this link (155-page PDF document).
Posted at 14:57 by Howard Bashman



Oregon Court of Appeals again upholds punitive damages award that's 96 times greater than compensatory damages award: How? By getting creative and assuming that the tobacco company defendant injured other similarly-situated Oregonians, and therefore the proper amount of compensatory damages against which to compare the punitive damages is some large multiple of what was actually awarded to the plaintiff. You can access today's ruling at this link.
Posted at 14:44 by Howard Bashman



U.S. Court of Appeals for the Ninth Circuit delivers a victory for the Center for Reproductive Rights: Today a unanimous three-judge panel of the Ninth Circuit ruled that children conceived after their father died using sperm that the father banked before undergoing chemotherapy for cancer are entitled to recover child's insurance benefits as the deceased father's children under the Social Security Act. The opinion concludes:
As Netting's legitimate children, Juliet and Piers are conclusively deemed dependent on Netting under the Act and are entitled to child's insurance benefits based on his earnings. Accordingly, we REVERSE the decision of the district court and REMAND with instructions to further remand to the Commissioner of Social Security for an award of benefits.
You can access today's ruling at this link. Earlier press releases that the Center for Reproductive Rights issued concerning the case are available here and here.
Posted at 14:04 by Howard Bashman



"Jurors Consider Death Penalty for Nichols": The Associated Press reports here that "Jurors began deliberating Oklahoma City bombing conspirator Terry Nichols' fate Wednesday after a defense attorney stood behind him, put his hands on Nichols' shoulders and asked the panel to save his life."
Posted at 13:59 by Howard Bashman



Bloggers ruminate on the latest developments concerning the treatment of detainees in the war on terror: Reporter Lyle Denniston, writing at "SCOTUSblog," today has a post entitled "Taking Judicial Notice?" And Yale Law Professor Jack M. Balkin, at the "Balkinization" blog, today has a post entitled "Above the Law?"
Posted at 12:11 by Howard Bashman



"Reagan and the Courts: A Sober Assessment." Law Professor Michael C. Dorf today has this essay online at FindLaw.
Posted at 11:08 by Howard Bashman



"O'Connor highlight of Commencement": Stanford University has issued this news release today.
Posted at 11:07 by Howard Bashman



"Prison Interrogators' Gloves Came Off Before Abu Ghraib": The Los Angeles Times today contains an article that begins, "After American Taliban recruit John Walker Lindh was captured in Afghanistan, the office of Defense Secretary Donald H. Rumsfeld instructed military intelligence officers to 'take the gloves off' in interrogating him."
Posted at 10:53 by Howard Bashman



"Ashcroft Won't Release Torture Memos to Senate": NPR's Nina Totenberg had this report (Real Player required) on today's broadcast of "Morning Edition."

Elsewhere, Shannon McCaffrey of Knight Ridder Newspapers reports that "Ashcroft refuses to provide Congress memos on use of torture."
Posted at 10:27 by Howard Bashman



Two news outlets report "We win!" Covering a decision that the U.S. Court of Appeals for the Second Circuit issued yesterday in which they were the prevailing parties, The Hartford Courant today reports that "Docket Sheets Are Public; Appellate Ruling Gives First Amendment Right," while American Lawyer Media's law.com offers an article headlined "2nd Circuit: Public Has Right to Inspect Court Dockets."
Posted at 10:18 by Howard Bashman



The Hill is reporting: Today's issue contains articles headlined "Clash over torture memo; Citing Constitution, Ashcroft refuses Judiciary demand" and "FDA likely to approve Plan B pill."
Posted at 10:17 by Howard Bashman



"Originalist Thinking: Reagan revived the Founding." Professor Matthew J. Franck has this essay today at National Review Online.
Posted at 10:15 by Howard Bashman



Fate of cross on Los Angeles County Seal appears sealed: The Los Angeles Daily News reports today that "Vote on cross upheld before angry crowd." And The Los Angeles Times reports today that "Protesters Rally for County Seal Cross."
Posted at 09:00 by Howard Bashman



"Court Upholds Teaching Bible as Fiction in Schools": "ScrappleFace" provides this coverage of a recent ruling by the U.S. Court of Appeals for the Sixth Circuit.
Posted at 08:55 by Howard Bashman



Today's Ten Commandments news: The Montgomery Advertiser reports today that "Moore tells Senate he's right." The Birmingham News reports that "Bill on judges gets a hearing." The Washington Times reports that "Moore asks Senate to limit courts' authority on religion." The Scripps Howard News Service reports that "Federal judges shouldn't override God, Senate told." The Dallas Morning News reports that "Balch Springs resident testifies at U.S. Senate hearing on faith; Man says city shouldn't have tried to ban prayer at senior center." The Salt Lake Tribune reports that "Panel weighs public assertions of faith." The Baltimore Sun reports that "'Roy's Rock' still a force in Ala.; The ouster of the state Supreme Court's chief justice last year over his Ten Commandments monument became an election issue." And The Gwinnett Daily Post reports that "Group will donate more to Barrow legal fight."
Posted at 08:44 by Howard Bashman



"Landrieu: Keep God in Pledge; Senators offer options if court ruling sticks." This article appears today in The Times-Picayune.
Posted at 08:42 by Howard Bashman



"Al-Hussayen jury continues deliberations": The Idaho Statesman contains this article today.
Posted at 08:37 by Howard Bashman



"Killer's lawyers argue for delay in execution": This article appears today in The Baltimore Sun.
Posted at 07:30 by Howard Bashman



In Wednesday's newspapers: The New York Times reports that "Officer in Charge of Questioning Iraqi Inmates Had No Interrogation Training." An article is headlined "In Florida, Wrestling Again Over Felons and Voting." In news from Connecticut, "Testimony Begins in Impeachment Hearings on Rowland" and "Hearings Haunted by the Governors of Scandals Past." An article is headlined "Now Playing in Boston: Terrorism and Civil Rights." In business news, "Microsoft Files an Appeal in European Antitrust Case." An editorial is entitled "The Roots of Abu Ghraib." And letters to the editor appear under the heading "The Torture Memo, and the Outcry."

The Washington Post reports that "Interrogations Are Criticized; Lawyers Fault Tactics Used on Witnesses Against Detainees." In regional news, "Execution Method Debated in Md.; Judges to Rule on Condemned Inmate's Request for Stay." In other news, "Subpoenas in CIA Leak Probe Opposed." An article reports that "Cross in Mojave Desert Preserve Barred; 9th Circuit Agrees 'War Memorial' Violates Separation of Church and State." In business news, "Microsoft Appeals EC Ruling; Software Giant Challenges Fine, Design Mandate." And editorials are entitled "Legalizing Torture" and "Still Unfair."
Posted at 07:00 by Howard Bashman



Tuesday, June 08, 2004
In today's edition of The Los Angeles Times: An article reports that "Martha Stewart Hearing Delayed; A judge postpones the sentencing to July 8, signaling that alleged perjury by a U.S. agent will be a serious issue." In other news, "Defense in Rape Case Calls Girl's Parents to Stand; Lawyers in the Orange County trial seek to impeach the alleged victim's credibility by showing conflicts in testimony." An editorial is entitled "Tiny Symbol, Huge Fuss." And letters to the editor appear under the headings "Crossing Swords Over the L.A. County Seal" and "Is Padilla's Incarceration Justified or Immoral?"
Posted at 23:50 by Howard Bashman



"Bush Didn't Order Any Breach of Torture Laws, Ashcroft Says": Neil A. Lewis will have this article in Wednesday's issue of The New York Times. A related item is headlined "Documents Build a Case for Working Outside the Laws in Interrogations." And Wednesday's edition of The Washington Post will contain articles headlined "Ashcroft Denies Senators '02 Memo; Document Details Suffering Allowed In Interrogations" and "Memo Draws Focus To Bush; Aide: President Set Broad Guidelines."
Posted at 23:47 by Howard Bashman



Available online from National Public Radio: Today's broadcast of "Day to Day" contained segments entitled "Slate's Jurisprudence: Mixed Legacy of Simpson Trial" (featuring Dahlia Lithwick); "Conn. Legislature Mulls Impeachment of Governor"; and "Ohio Muslim Cleric Tried on Immigration Charges."

Today's broadcast of "Talk of the Nation" contained a segment entitled "Ashcroft Testimony on Iraqi Prisoner Memo."

Finally, this evening's broadcast of "All Things Considered" contained segments entitled "Ashcroft Won't Discuss Torture Charges on Hill" and "Memos on Iraqi Interrogations."
Posted at 23:44 by Howard Bashman



"When judges investigate judges": Law Professor Steven Lubet had this op-ed last Thursday in The Chicago Tribune.
Posted at 23:43 by Howard Bashman



And the winner is: Today Eleventh Circuit Judge William H. Pryor, Jr. became the first of the current crop of appellate recess appointees to issue a precedential opinion on behalf of the federal appellate court that he currently is temporarily serving. In the interest of completeness, Fifth Circuit Judge Charles W. Pickering, Sr. previously issued two precedential opinions on behalf of the Fifth Circuit when sitting by designation on that court as a district court judge. Feddie of "Southern Appeal" commemorates Judge Pryor's first precedential Eleventh Circuit opinion in a post you can access here.
Posted at 23:34 by Howard Bashman



If Puerto Rico already were a State, then the subject of this post wouldn't be the first Puerto Rican to serve on a State's highest court: The Newark (N.J.) Star-Ledger today reports that "Panel OKs first Hispanic nominee; Attorney wins blessing of Judiciary Committee, awaits confirmation by full Senate." And The Courier-Post today reports that "Hispanic court nominee praised."
Posted at 23:28 by Howard Bashman



"Legion lauds Gregg for bid to outlaw flag desecration": The Portsmouth Herald today contains an article that begins, "Sen. Judd Gregg, R-N.H., was honored Monday for his unwavering support of a constitutional amendment that would protect the American flag from physical desecration in public."
Posted at 23:23 by Howard Bashman



"Clients in limbo as 2 defense attorneys face drug charges; Teen accused in slaying case among those who will have to get new lawyers": The Post and Courier of Charleston, South Carolina today contains this article.
Posted at 23:20 by Howard Bashman



"Reagan's legal revolution lives through federal bench appointments": This article appears today in The Pittsburgh Post-Gazette.
Posted at 23:15 by Howard Bashman



"Kaczynski's attorney reinstated by court": The Sacramento Bee today contains an article that begins, "A federal appellate court has reinstated attorney John Balazs as Theodore Kaczynski's counsel in the convicted Unabomber's attempt to recover his writings and donate them for scholarly research."
Posted at 23:08 by Howard Bashman



Yesterday's developments in the Scott Peterson trial: The San Francisco Chronicle today contains an article headlined "Victim's mother on stand; Her son-in-law's behavior made her suspicious, she says" and on Sunday contained an article headlined "Experts say state botching the case; Prosecution's opening called 'a whole lot of nothing.'" The Los Angeles Times today reports that "Mother-in-Law Testifies Against Scott Peterson; Murder victim Laci Peterson's parent says defendant avoided being alone with her and making eye contact." The San Mateo County Times today contains an article headlined "Laci's mom: Scott avoided eye contact; Sharon Rocha testifies that Peterson's behavior made her suspicious." The San Jose Mercury News today reports that "Victim's family could help defense, too; Remarks may raise doubts on motive, premeditation." And The Modesto Bee today reports that "'Missing' triggered alarms."
Posted at 22:50 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Ousted justice makes case; Religious expression law before Congress"; "Prosecutors Press Death for Terry Nichols"; "Lawyer: Maryland Executions Are Illegal"; "Panel Weighs Conn. Governor's Impeachment"; and "Laci Peterson's Stepdad Was Also Fishing."
Posted at 22:40 by Howard Bashman



"New Torture Furor: A Defense Dept. memo provides a legal roadmap for prisoner interrogation." Newsweek tonight offers this article and has posted online here the Defense Department's memo. Law Professor Eric Muller has also posted a copy of the memo online here, and his version appears to have six extra pages (no time now for me to figure out why that is).

Update: The New York Times offers this even longer version of the document.
Posted at 21:17 by Howard Bashman



"Where are the lines? The court's impact on voting maps; The Supreme Court has stayed out of two recent frays, but a Texas case could resolve how often lines can be redrawn": Warren Richey will have this article in Wednesday's issue of The Christian Science Monitor.
Posted at 21:00 by Howard Bashman



"Ashcroft backs broad war powers for president; Attorney general says it's impossible to define limits": Tom Curry has this report online at MSNBC.
Posted at 17:19 by Howard Bashman



"June is often a time of compromise in court; 22 cases to be resolved before recess": Joan Biskupic, who covers the U.S. Supreme Court for USA Today, has this report today in that newspaper.
Posted at 16:47 by Howard Bashman



Newspapers throughout the Nation report on yesterday's developments at the U.S. Supreme Court: The San Diego Union-Tribune reports that "High court opens U.S. roads to Mexican trucks; Justices conclude air-pollution studies are not necessary." The Los Angeles Times reports that "Ruling Lets In Mexican Trucks; The Supreme Court says an environmental report isn't needed to allow vehicles on U.S. roads; But an inspection program still lies ahead." Bob Egelko of The San Francisco Chronicle reports that "Court opens roads to Mexican trucks; Environmental impact study ruled legally pointless." The Desert Sun reports that "Mexican trucks gain more access to U.S.." The Long Beach Press-Telegram reports that "Court OKs Mexican trucks in the U.S.; Justices reject environmental challenge, say final decision rests with Bush." The Arizona Republic reports that "U.S. opened to Mexican trucks; Arizona officials fear more pollution after high court ruling" and "Mexican-trucks ruling may boost Valley's Swift." The Houston Chronicle reports that "Court clears way for Mexico's trucks; Concerns about polluting of U.S. cities rejected" and "Few expect Mexican trucks to flood U.S." The San Antonio Express-News reports that "Mexican trucks get court OK" and "Laredo leaders unconcerned about entry of Mexican trucks." The Fort Worth Star-Telegram reports that "Border businesses see ruling as victory." In USA Today, Joan Biskupic reports that "Court says Bush can open borders to Mexican trucks." The Washington Times reports that "Court clears roadblock." The Atlanta Journal-Constitution reports that "Ruling opens U.S. borders to Mexican trucks." And BBC News reports that "US opens roads to Mexico's trucks; Mexican trucks may soon be allowed free access to North American roads, despite opposition from US pressure groups."

In The Los Angeles Times, Henry Weinstein reports that "Woman Can Sue Austria Over Art Seized by Nazis; Supreme Court ruling may encourage others to go after governments for disputed property." In The San Francisco Chronicle, Bob Egelko reports that "Top court allows suit over Nazi looting; WWII refugee seeks return of stolen paintings." In USA Today, Joan Biskupic has an article headlined "Court: Americans can sue other nations retroactively Ruling allows Nazi art lawsuit." The Chicago Tribune reports that "Court OKs suit against Austria for Klimt work." The Atlanta Journal-Constitution reports that "U.S. citizen allowed to sue Austria over war loot." BBC News offers a report headlined "US ruling over 'looted' Nazi art: The US Supreme Court has ruled that Austria's government and national museum could be sued by a woman trying to recover alleged looted art." And Financial Times reports that "Judges clear way to pursue wartime loot in US courts."

In The Los Angeles Times, David G. Savage reports that "Court Strengthens Rights of Young Pensioners; Early retirees who take another job are entitled to the benefits they've earned, justices rule." And USA Today reports that "Supreme Court rules against pension plan."

The Denver Post reports that "U.S. high court says Littleton can force Christal's to seek license" and "GOP gets hit again on remap; Supreme Court refuses Colo. redistricting case." And The Rocky Mountain News reports that "Supreme Court backs Littleton; Adult-business law upheld; bookstore may face fines, fees"; "Justices decline redistricting case; U.S. high court won't hear boundary feud"; and "Decision 'a little appetizer' for bigger national cases."

Finally, The New York Lawyer reports that "NY Judge Denied Appeal to US Supreme Court." And The Times Union of Albany, New York reports that "Jurist denied at Supreme Court; Thomas Spargo loses petition in free-speech case."
Posted at 16:25 by Howard Bashman



"New website coming soon: PointOfLaw.com." The Manhattan Institute is launching a new site whose goal is to take an in-depth look at our legal system and how it might best be fixed. You can access the details here at "Overlawyered."
Posted at 15:21 by Howard Bashman



U.S. Court of Appeals for the Second Circuit holds that the press and public possess a qualified First Amendment right of access to state court docket sheets: You can access today's ruling at this link. The victorious appellants are The Hartford Courant and American Lawyer Media.
Posted at 15:07 by Howard Bashman



Former Alabama Chief Justice Roy S. Moore is about to testify before a U.S. Senate subcommittee: You can listen live at this link. The title of the hearing is "Beyond the Pledge of Allegiance: Hostility to Religious Expression in the Public Square." I previewed this hearing yesterday in a post you can access here.
Posted at 14:55 by Howard Bashman



"Reagan's mark made in court appointments": This article appears today in The Toledo Blade.
Posted at 14:24 by Howard Bashman



"Court rebuffs Makah's appeal over whaling; Ruling may put tribe's next hunt off for years": The Seattle Post-Intelligencer today contains an article that begins, "For the third time, a federal appeals court ruled yesterday the Makah Tribe must comply with more stringent environmental procedures before seeking to hunt gray whales -- a decision likely to mean years of process before tribal whalers will know whether they can ever legally hunt again."
Posted at 12:55 by Howard Bashman



"A Symbol of Our History -- Not a Seal of Approval for a Religion": Law Professor Douglas W. Kmiec has this op-ed in today's issue of The Los Angeles Times.
Posted at 12:51 by Howard Bashman



"Fed court hears case to stop gay marriages": The Boston Herald today contains this article reporting on a case argued yesterday in the U.S. Court of Appeals for the First Circuit.
Posted at 12:30 by Howard Bashman



"Court asked to revisit ruling; Statement by suspect in carjacking at issue; Murder case could be voided; Officials want remarks to police deemed voluntary": The Baltimore Sun today contains an article that begins, "The Maryland attorney general's office has asked the state's highest court to reconsider a part of its ruling last month that would require the dismissal of murder charges against a teenager accused in the carjacking in which an Annapolis businessman was killed."
Posted at 12:10 by Howard Bashman



"Advocates find little to cheer in free-speech victory": Tony Mauro today has this essay online at the First Amendment Center.
Posted at 12:00 by Howard Bashman



"Reagan's legal legacy: Conservatives and a woman on the high court." Dan Abrams has this essay online at MSNBC.
Posted at 11:54 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": The broadcast contained segments entitled "High Court Clears Way for Nazi Looting Suit" (featuring Nina Totenberg); "Court Opens U.S. Roads to Mexican Trucks"; "DOJ Memo Outlined Legal Case for Torture"; "Geneva Violations in Iraqi Prisons Reported in 2003"; "Guantanamo Defense Lawyers Cite Lack of Resources"; and "Ashcroft Defends Patriot Act" (Real Player required).
Posted at 10:35 by Howard Bashman



"DOJ Oversight: Terrorism and Other Topics." Attorney General John Ashcroft is now testifying before the Senate Judiciary Committee at a hearing on this subject. You can listen live at this link (Real Player required).
Posted at 10:30 by Howard Bashman



"Reagan Legacy at the Ninth Circuit": The blog "Criminal Appeal" offers these thoughts.
Posted at 10:29 by Howard Bashman



"Pentagon Lawyers Question Methods At Guantanamo": This article appears today in The Wall Street Journal.
Posted at 10:10 by Howard Bashman



Stephen Henderson of Knight Ridder Newspapers is reporting: Today he has articles headlined "U.S. courts can be used to recover booty plundered by Nazis" and "Environmental concerns won't stop Mexican trucks, court rules."
Posted at 08:48 by Howard Bashman



"Judge strikes down fortunetelling ordinance; Requirements for disclaimers are unconstitutional": The Tennessean today contains an article that begins, "A U.S. District Court judge has struck down as unconstitutional a Dickson ordinance that requires fortunetellers to post disclaimers on their premises and in their advertisements."
Posted at 07:10 by Howard Bashman



Ten Commandments news: From Georgia, The Associated Press reports that "County gets money to continue Ten Commandments legal battle."

From Wyoming, The Casper Star-Tribune reports today that "Ten Commandments plaza delayed a year."

From Montana, The Daily Inter Lake reports today that "Group wants 'Cornerstone of Law' proposal put into writing."

And from Tennessee, The Monroe County Advocate & Democrat reported yesterday that "Display remains for now."
Posted at 07:05 by Howard Bashman



"Appeals Court Backs Ruling That Desert Cross Is Unconstitutional; Earlier panel had said symbol in the Mojave Preserve violated the 1st Amendment": This article appears today in The Los Angeles Times. And David Kravets of The Associated Press reports that "Cross in Mojave Park Said Unconstitutional."
Posted at 07:00 by Howard Bashman



In Tuesday's newspapers: In The Washington Post, Charles Lane reports that "Justices Allow Lawsuit On Art Taken by Nazis." In related news, "High Court Opens U.S. Roads to Mexican Trucks; Bush Gets Authority to Enforce NAFTA Despite Objections From Environmentalists, Teamsters." An article reports that "Memo Offered Justification for Use of Torture; Justice Dept. Gave Advice in 2002." In regional news, "Warner Makes New Pick for Circuit Court; Alexandria Judge Withdraws." An editorial is entitled "Marion Barry's Charge." And a letter to the editor appears under the heading "Too Dangerous a Power."

The New York Times reports that "Forced Nudity of Iraqi Prisoners Is Seen as a Pervasive Pattern, Not Isolated Incidents." In business news, "Judge Delays Until August Start of Trial In Enron Case"; "Microsoft Likely to Win Stay of European Ruling"; and "Microsoft Says It Wooed SAP, and Oracle Trial Takes Note." And in regional news, "Rowland Loses Lawsuit, but He Is Still Expected to Avoid Having to Testify" and "Court Says New Paltz Mayor Can't Hold Gay Weddings."

Finally, The Christian Science Monitor contains an editorial entitled "Adjusting 'Three Strikes' Law."
Posted at 06:35 by Howard Bashman



"Al-Hussayen jury still looking for verdict; Former potential witness seeks to travel freely again": This article appears today in The Idaho Statesman.
Posted at 06:33 by Howard Bashman



Monday, June 07, 2004
The blawg "awake in a muddle" has a few things to say about The California Lawyer magazine's article on law blogs: You can access the comments at this link. Foreign language skills are a plus.
Posted at 23:50 by Howard Bashman



"Beyond the Pledge of Allegiance: Hostility to Religious Expression in the Public Square." The Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Property Rights is scheduled to hold this hearing at 2 p.m. on Tuesday. Be sure not to miss the witness list.
Posted at 23:44 by Howard Bashman



In today's issue of The Los Angeles Times: An article reports that "4 Iranians Challenge Detention; Brothers have been held since 2001 in what their lawyer calls 'post-9/11 hysteria'; U.S. officials cite support for a group on terrorist list." And in other news, "Lawsuits Put Military Contractor on Defensive; The San Diego-based Titan Corp. is embroiled in allegations that include bribery."
Posted at 23:22 by Howard Bashman



"Furor over UC prof's brief on war; He advised Bush on prisoners' rights": This article appears today in The San Francisco Chronicle. Last Thursday, that newspaper published a related op-ed entitled "Repudiate or resign" by Debra J. Saunders.
Posted at 23:10 by Howard Bashman



"Reagan's law: No intellectual, he put brainy lawyers -- and free-speech supporters -- on the federal courts": Michael McGough has this article today in The Pittsburgh Post-Gazette.
Posted at 23:02 by Howard Bashman



"Owens Corning, Some Creditors OK Agreement": The Associated Press provides this report.
Posted at 22:56 by Howard Bashman



Available online from law.com: Tony Mauro reports that "Supremes Say Foreign Governments Can Face Suits in U.S. Courts; In separate case, justices strike 9th Circuit ruling involving Mexican trucks and NAFTA." In other news, "Separate Soccer Found to Violate Civil Rights; Girls' spring schedule prevented opportunity for championship play, 2nd Circuit ruled." An article reports that "9th Circuit Taking a Closer Look at Billboards." In news from New Jersey, "Judicial Clerks Have Conflicts That Will Travel; Onus put on firms to screen former clerks from cases they worked on" (plus you can access last week's 4-2 ruling of the Supreme Court of New Jersey at this link). In news from New York, "Judge Bars New Paltz Mayor From Marrying Gay Couples." And in news from Texas, "Federal Trial Begins Over Alleged Shipments to Libya, Syria; Government alleges brothers sent computers to designated terrorist countries."
Posted at 22:44 by Howard Bashman



In Tuesday's edition of The New York Times: Linda Greenhouse will have articles headlined "Justices Allow Suit Against Austria to Regain Art" and "Colorado Republicans Lose Redistricting Effort." In other news, "Lawyers Decided Bans on Torture Didn't Bind Bush." And an article will report that "U.S. Is Now Pursuing Americans Who Commit Sex Crimes Overseas" (plus a related graphic is accessible here).
Posted at 22:40 by Howard Bashman



Too much symbolism? As I noted earlier today at the close of this post, the U.S. Supreme Court is next scheduled to issue opinions in argued cases on Monday, June 14, 2004. One of the argued cases that remains to be decided is Elk Grove Unified School Dist. v. Newdow, No. 02-1624, in which a California public school district seeks to overturn a ruling of the U.S. Court of Appeals for the Ninth Circuit that the words "under God" cannot be included in the Pledge of Allegiance when recited in school. June 14, 2004 is not only Flag Day, but it also is the 50th anniversary of the date on which the words "under God" were added to the Pledge of Allegiance. It will be interesting to see whether the Pledge of Allegiance decision will issue next Monday.
Posted at 20:58 by Howard Bashman



"Court Ruling Would Speed Mexican Trucking Access": Nina Totenberg had this report (Real Player required) on this evening's broadcast of NPR's "All Things Considered."
Posted at 18:44 by Howard Bashman



Available online from The Los Angeles Times: David G. Savage reports that "Justices OK Bush Policy on Mexican Trucks." And Henry Weinstein reports that "Court Clears Way for Stolen Art Suit."
Posted at 18:42 by Howard Bashman



"Groups Seek End of Mass. Gay Marriages": The Associated Press provides this report on a case argued today in the U.S. Court of Appeals for the First Circuit.
Posted at 17:43 by Howard Bashman



"Pentagon Report Set Framework For Use of Torture; Security or Legal Factors Could Trump Restrictions, Memo to Rumsfeld Argued": This article appears today in The Wall Street Journal (via "Intel Dump").
Posted at 17:01 by Howard Bashman



"Reagan's Court: The justices he chose reflected his core values and personality." Law Professor Douglas W. Kmiec today has this essay at National Review Online.
Posted at 16:40 by Howard Bashman



"Court's authority over marriage law challenged": Today's issue of The Washington Times contains this preview of a case argued today before the U.S. Court of Appeals for the First Circuit.
Posted at 16:07 by Howard Bashman



"Connecticut Governor Ordered to Testify": The AP offers this news.
Posted at 15:28 by Howard Bashman



"State ban on heavily tinted car windows tossed out": The Associated Press provides this report on a decision that the Supreme Court of Georgia issued today.
Posted at 14:45 by Howard Bashman



Audio and more audio: Today's broadcast of NPR's "Morning Edition" contained a segment entitled "Reagan's Legacy Looms Large over High Court" featuring Nina Totenberg.

And at "SCOTUSblog," Lyle Denniston has an audio blog post reporting on this morning's developments at the U.S. Supreme Court.
Posted at 14:27 by Howard Bashman



"Employers Lose Early Retiree Pension Case": Anne Gearan of The Associated Press provides this report on another of the U.S. Supreme Court's decisions issued today.

Reuters, meanwhile, offers reports headlined "Court: Retiree Pension Benefits Can't Be Cut" and "Austria Can Be Sued in U.S. Over Nazi-Seized Art."
Posted at 14:20 by Howard Bashman



Today's other noteworthy decisions from the U.S. Court of Appeals for the Ninth Circuit: In addition to the quite newsworthy ruling summarized in the post immediately below this one, the Ninth Circuit today issued three other noteworthy decisions.

1. In a case from Oregon, Circuit Judge Marsha S. Berzon begins her opinion concurring in part and dissenting in part as follows:
Weighty state and personal liberty interests are placed at issue by an extremely important question raised at oral argument in this case: does the Supreme Court's recent decision in Lawrence v. Texas, 123 S. Ct. 2472 (2003), which created a substantive due process right to private consensual sex, have any bearing on the precision with which the government must act when criminalizing an otherwise consensual sexual act on the ground that the sex partner is too retarded to consent to sexual contact?
You can access the complete decision at this link.

2. Circuit Judge Alex Kozinski, in this instance writing for the majority on a divided three-judge panel, reinstated the claim of an inmate who alleged that "he was denied equal protection because, during three prison lockdowns, he was not allowed to resume his prison job until after similarly-situated inmates of other races." The complete decision is available here.

3. Finally, a divided three-judge panel issued a decision creating a circuit split on the question whether a district court's denial of a motion for an ex parte seizure order is an automatically appealable literal refusal of an injunction or a practical denial of ultimate injunctive relief. The U.S. Court of Appeals for the Third Circuit has previously recognized the existence of appellate jurisdiction in these circumstances (in a decision that I have criticized on other grounds). Today, in a majority opinion written by Circuit Judge M. Margaret McKeown, the Ninth Circuit held that appellate jurisdiction does not exist. Circuit Judge Consuelo M. Callahan dissented on that point. You can access the complete decision at this link.
Posted at 13:55 by Howard Bashman



U.S. Court of Appeals for the Ninth Circuit decides "a large scale battle over a small cross": On May 6, 2003, The Christian Science Monitor published an article headlined "A large-scale battle over a small cross; Court case tests whether a cross in the Mojave National Preserve breaches the church-state wall." Today a unanimous three-judge panel of the Ninth Circuit issued its decision in the case, affirming the trial court's issuance of an injunction that bars display of the cross.

You can access Circuit Judge Alex Kozinski's opinion at this link. An image of the cross can be viewed at this link, and more information about the dispute can be found about midway between the top and bottom of this Web page. Finally, a copy of the ACLU's press release announcing the filing of this lawsuit is accessible here.
Posted at 13:29 by Howard Bashman



In other news from the U.S. Supreme Court: Gina Holland of The Associated Press has a report headlined "Colorado GOP Loses Redistricting Case." In this instance, the "loss" was the Court's denial of a petition for writ of certiorari. And Anne Gearan reports that "High Court Rejects Muslim Leader's Case."
Posted at 11:48 by Howard Bashman



"'America's Favorite Pasta'--Commercial puffery or factual claim?" So begins a Lanham Act opinion that Circuit Judge William J. Riley issued today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit.
Posted at 11:36 by Howard Bashman



"Rants, Rulings, Recipes: Lawyers and other legal professionals speak their minds on the Web." The June 2004 issue of The California Lawyer magazine contains this cover story about law blogs. "How Appealing" is mentioned, as are many other worthwhile blawgs. Thanks to Denise Howell for the pointer.

In a neighboring post, Denise focuses on the question "whether and on what terms judges should be permitted to view, and if desired participate in, discussions about their skills."
Posted at 11:18 by Howard Bashman



Today's U.S. Supreme Court opinions and Order List: Today the Supreme Court of the United States issued opinions in four argued cases.

1. Justice Stephen G. Breyer issued the opinion of the Court in City of Littleton v. Z.J. Gifts D-4, L.L.C., No. 02-1609, and the judgment under review was reversed. You can access the syllabus here; Justice Breyer's opinion of the Court, in which the Chief Justice and Justices Sandra Day O'Connor, Clarence Thomas, and Ruth Bader Ginsburg joined in full and Justices John Paul Stevens, Anthony M. Kennedy, and David H. Souter joined in part, here; Justice Stevens' opinion concurring in part and concurring in the judgment here; Justice Souter's opinion concurring in part and concurring in the judgment, in which Justice Kennedy joined, here; the opinion of Justice Antonin Scalia concurring in the judgment here; and the oral argument transcript here.

2. Justice Thomas issued the opinion for a unanimous Court in Department of Transportation v. Public Citizen, No. 03-358, and the judgment under review was reversed and the case remanded. You can access the syllabus here; Justice Thomas's opinion of the Court here; and the oral argument transcript here.

3. Justice David H. Souter issued the opinion for a unanimous Court in Central Laborers' Pension Fund v. Heinz, No. 02-891, and the judgment under review was affirmed. You can access the syllabus here; Justice Souter's opinion of the Court here; the concurring opinion of Justice Breyer, in which the Chief Justice and Justices O'Connor and Ginsburg joined, here; and the oral argument transcript here.

4. Justice John Paul Stevens issued the opinion of the Court in Republic of Austria v. Altmann, No. 03-13, and the judgment under review was affirmed. You can access the syllabus here; Justice Stevens' opinion of the Court, in which Justices O'Connor, Scalia, Souter, Ginsburg, and Breyer joined, here; Justice Scalia's concurring opinion here; Justice Breyer's concurring opinion, in which Justice Souter joins, here; Justice Kennedy's dissenting opinion, in which the Chief Justice and Justice Thomas joined, here; and the oral argument transcript here.

In press coverage of today's developments from The Associated Press, Gina Holland has a report headlined "Court: Americans Can Sue Over War Crimes." Anne Gearan reports that "Bush Wins Mexican Truck Safety Case." And in other news, "Supreme Court to Consider Bankruptcy Case." Meanwhile, James Vicini of Reuters reports that "Supreme Court Rejects Mexico Trucks Environmental Study."

Today's Order List can be accessed here. The Court granted review in one case (in which the petitioners were represented by the Stanford Law School Supreme Court Litigation Clinic) and asked the Solicitor General for his view on three cases that appear to involve trucking-related issues and the State of Michigan. And the Chief Justice, joined by Justices Scalia and Thomas, issued a dissent from the denial of certiorari in Colorado General Assembly v. Salazar, No. 03-1082.

The Court will next issue opinions in argued cases and an Order List on Monday, June 14, 2004.
Posted at 10:00 by Howard Bashman



Access online the stay of execution order that the U.S. Court of Appeals for the Third Circuit issued last Thursday in a federal death penalty case: A reader has sent along a copy of the order, and I have posted it online here. The three-judge Third Circuit panel that issued the stay, by means of a per curiam order, consisted of Circuit Judges Dolores K. Sloviter, Marjorie O. Rendell, and Maryanne Trump Barry. I am advised that the federal government has stated that it will not seek to have the stay reversed in the Supreme Court of the United States.
Posted at 09:55 by Howard Bashman



How many controversies can one small town in Tennessee generate? Quite a few, it appears. Today a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit affirmed a federal trial court's order that had enjoined, as a violation of the First Amendment's Establishment Clause, the decision of a school board to allow religious instruction in the Rhea County, Tennessee public schools.

Rhea County was home to the Scopes Monkey Trial (see here, here, and here). More recently, Rhea County was in the news when it voted to ban homosexuals. As The Associated Press reported within the past three months, "Homosexual ban in Rhea rescinded by officials."

You can access today's Sixth Circuit ruling here (in HTML format) and here (in PDF format). The decision also contains discussion of when it is appropriate for plaintiffs to proceed pseudonymously.
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 one or more opinions in argued cases and an Order List.
Posted at 08:50 by Howard Bashman



"White House waves the white flag; Capitulating on judges brings no benefits": Columnist Nat Hentoff today has this op-ed in The Washington Times. And in the current issue of The Village Voice, Hentoff has an essay entitled "Patriot Act Besieged; A Justice Department honcho confesses: 'We are losing the fight for the Patriot Act.'"
Posted at 08:48 by Howard Bashman



"From Bush, Saddam-Style Justice: Fearing it can't convict terror suspect Jose Padilla, the government wants to keep him locked up indefinitely; That's un-American." Howard Gleckman today has this essay at Business Week Online.
Posted at 08:44 by Howard Bashman



"Shaping our top court: The next prime minister will be making key appointments to the Supreme Court of Canada." Andrew Cardozo today has this op-ed in The Toronto Star.
Posted at 08:41 by Howard Bashman



"Confederate flags in public schools: teach the controversy." Charles Haynes has this essay online at the First Amendment Center.
Posted at 08:40 by Howard Bashman



"Anti-gay-marriage petition drive hits hectic pace; The clock is ticking for people seeking 100,840 signatures": This article appears today in The Salem (Ore.) Statesman Journal.
Posted at 08:10 by Howard Bashman



"Bungled fingerprints expose problems at FBI": The Seattle Times today contains this article.
Posted at 07:28 by Howard Bashman



"Rosa Parks' suit set for trial": This article appears today in The Detroit News.
Posted at 07:27 by Howard Bashman



"0-2 in 9th, Ashcroft may seek review; At issue are medical pot, assisted suicide": Marcia Coyle has this article in today's issue of The National Law Journal.
Posted at 07:25 by Howard Bashman



Los Angeles County's effort to avoid litigation by removing cross from its official seal fails: The Thomas More Law Center has issued a press release headlined "LA County Sued in Federal Court For Removing Cross From Official Seal."

Relatedly, The Los Angeles Daily News today reports that "Public takes up cross battle; Supervisors slammed with calls, letters over seal change urged by ACLU." And that newspaper recently published an op-ed by Mariel Garza entitled "ACLU forgets to say don't have a cow" and an op-ed by Chris Weinkopf entitled "Maybe bullies can target pagans next."

I wonder whether Weinkopf is familiar with The Fort Worth Star-Telegram's coverage (see here and here) of the pagan panther controversy.
Posted at 07:18 by Howard Bashman



"Voters scheduled to decide on proposed abortion notification": This article appears today in The Naples (Fla.) Daily News.
Posted at 07:12 by Howard Bashman



"School boards pray before gavel falls; Constitution's separation of church, state doesn't apply to pre-meeting activities": The Indianapolis Star contains this article today.
Posted at 07:11 by Howard Bashman



"Man's defense aided by science; Brain research may affect death penalty": This article published today in The Kansas City Star focuses on the constitutionality of the death penalty for those who kill before the age of 18.
Posted at 07:09 by Howard Bashman



"Taking felons' DNA in dispute; Inmate linked to rape via database challenges collection of material; Court of Appeals to hear case; Rights violation claimed; state rebuts complaint": The Baltimore Sun today contains this article.
Posted at 07:05 by Howard Bashman



"Truce on judicial nominees overdue": This editorial appears today in The San Antonio Express-News.
Posted at 07:00 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Reagan Conservatism Seen at Supreme Court." And in other news, "Hinckley Still Patient in Mental Hospital" and "Defense to Open Case at Nichols Trial."
Posted at 06:50 by Howard Bashman



In Monday's newspapers: In The Washington Post, Charles Lane reports that "Justices Banking on Payoff From Publishing." In other news, "Poor Schools Sue for Funding; Higher Standards Are Basis for Seeking 'Educational Adequacy.'" An article is headlined "N.Y. Street Artist's Brush With the Law; Graffiti Case Goes to Trial Wednesday." In news from overseas, "Ethiopian Rape Victim Pits Law Against Culture." And an editorial is entitled "Remedies for Prisoner Abuse."

The New York Times reports on the "Contest Over BlackBerry Patent." In regional news, "No Monica, but Connecticut Impeachment Case Still Has Drama" and "Use of Bacteria in Art Leads to Federal Inquiry." In business news, "Move to Stiffen Decency Rules Is Losing Steam in Washington" and "Oracle's Bid for PeopleSoft to Be Tested in Court." And an article is headlined "Lawyer's Side Practice: Political Stars' Book Deals."
Posted at 06:30 by Howard Bashman



Sunday, June 06, 2004
Programming note: Ordinarily, at midnight on the first Monday of each month I publish a brand new installment of "20 questions for the appellate judge." Last month, however, was far from ordinary, due chiefly to the major surgery that my wife had to undergo. Despite all appearances to the contrary, the questions still don't write themselves. And last month's events caused a delay in the transmission of the questions to the June 2004 interviewee. As a result, the interview will appear online here at "How Appealing" at midnight either on Monday, June 14 or Monday, June 21.
Posted at 23:45 by Howard Bashman



"Memo to W: Finally we agree on something." Today in The Miami Herald, Jorge I. Dominguez, director of Harvard University's Weatherhead Center for International Affairs, has an op-ed that takes the form of a secret letter from Fidel Castro to George W. Bush about Guantanamo Bay, Cuba.
Posted at 23:33 by Howard Bashman



"Juror Loss Could Decide Nichols' Penalty": The Associated Press provides this report.
Posted at 23:30 by Howard Bashman



Elsewhere in Sunday's newspapers: The Los Angeles Times contains an obituary headlined "Former President Reagan Dies at 93." An article from The Associated Press reports that "India's Acid-Attack Victims Seek Justice, Compensation; Women are disfigured and blinded by spurned lovers, employers, even kin who think the family's honor has been sullied." And the Sunday Magazine section contains articles headlined "Just the Facts, Ma'am; When the Gavel Comes Down, Linda Deutsch Is There"; "Gathering Clouds: Arizona's Navajo and Hopi Tribes Have Won a Water-Rights Battle Against the Coal Company That Has Sustained Their Fragile Economies; But on the Threshold of Victory, a Sobering Question: Now What?"; and "Sheer Lunacy: Four college students hatched a scheme to steal moon rocks from the Johnson Space Center; It was a crazy idea--and it worked."

The Boston Globe reports that "Activists fight to protest at conventions; Rights weighed against safety." And columnist Jeff Jacoby has an op-ed entitled "The liberal terminology of abortion."
Posted at 22:30 by Howard Bashman



"Abortion Study Could Shift Debate over Ban": Yesterday's broadcast of NPR's "Weekend Edition - Saturday" contained this report (Real Player required). The study that is the subject of the segment can be accessed here and here.
Posted at 22:25 by Howard Bashman



"A case that may live forever": This article appears in the June 14, 2004 issue of U.S. News & World Report.
Posted at 20:57 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Lesbian couple wants San Diego country club to treat them as spouses"; "Attorney says U.S. could appeal stay of execution"; "Fifth Amendment will force tough choices in Rowland inquiry."
Posted at 15:22 by Howard Bashman



"Trial to look at exports; Five brothers had been accused of aiding terror, but focus has changed": The Dallas Morning News today contains this article. And The Associated Press reports that "Men to Be Tried on Hamas Terror Charges."
Posted at 15:21 by Howard Bashman



"Ruling on deportation mystifies abortion foes; Judge let pregnant woman stay in U.S.": This article appears today in The Kansas City Star.
Posted at 15:17 by Howard Bashman



"Hanging with the chief justice": The author of the Feeney Amendment visits with Chief Justice William H. Rehnquist, and Scott Maxwell has the details today in The Orlando Sentinel.
Posted at 15:04 by Howard Bashman



"Defendants go on the offensive; Claiming their names are copyrighted, five S. Jersey men bill when judges, prosecutors and defense lawyers use their names": This article appears today in The Philadelphia Inquirer.
Posted at 14:57 by Howard Bashman



"U.S. Terror Tactics in Top Court Cases Criticized": James Vicini of Reuters provides this report.
Posted at 14:52 by Howard Bashman



"Same-sex marriage foes target Congress": The Portland (Me.) Press Herald yesterday contained this article.
Posted at 14:45 by Howard Bashman



"Court: 2 schools must move girls soccer to the fall." This article appeared in yesterday's edition of The Journal News of Westchester, New York.
Posted at 14:44 by Howard Bashman



In Sunday's newspapers: The New York Times contains an article headlined "Why Military Justice Can Seem Unjust." An article reports that "Wide Gaps Seen in U.S. Inquiries on Prison Abuse." In somewhat related news, "Trouble in Private U.S. Jails Preceded Job Fixing Iraq's." The obituary of former President Ronald Reagan can be accessed here. An article reports that "French Mayor, Defying Law, Performs Gay Marriage." In regional news, "A 9/11 Lesson: Don't Photograph the Water" and "From Canceled Checks to Thank-You Notes." In business news, "Defending a Colossal Flop, in His Own Way." Columnist Frank Rich has an essay entitled "Mr. Bush Won't Be at the Tonys." And a letter to the editor appears under the heading "A Judge's Record."

In The Washington Post, Lou Cannon has this obituary of Ronald Reagan. And in other news, "The Big (Allegedly) Bad Wolf Makes His Case to the Jury; D.C. Elementary Students Participate in Mock Trial."
Posted at 10:10 by Howard Bashman



Saturday, June 05, 2004
Elsewhere in Saturday's newspapers: The Los Angeles Times reports that "Phone Ruling Puts Bush on Spot." An article is headlined "Wanted: Your State's Inmates; In a strapped rural town, the coming of 475 Hawaiian felons to its private prison is hailed as good news." In news from the criminal case against Kobe Bryant, "Judge Halts DNA Testing." An article reports that "BALCO Case Has Incentive for Settlement; Plea bargains could be used to implicate star athletes in a case in which criminal issues may not call for stiff sentences." An editorial is entitled "Furl the Flag, Go to Work." And Sherman Stein has an op-ed entitled "Marriage Can Be Expanded; Growth is possible to accommodate gays; The history of voting rights in the U.S. offers a model."

Finally, in The Washington Times, Thomas Sowell has an op-ed entitled "'Partial truth' abortion."
Posted at 23:50 by Howard Bashman



"Supreme Court justices react to death of Ronald Reagan": The Associated Press provides this report.
Posted at 23:42 by Howard Bashman



In tomorrow's issue of The New York Times Magazine: The magazine's Money 2004 issue contains articles about white-collar crime headlined "Throwing Away the Key" and "What the Bagel Man Saw."
Posted at 21:00 by Howard Bashman



"Man wins court round over Hwy. 101 billboard": The San Jose Mercury News today contains this article reporting on a decision that the U.S. Court of Appeals for the Ninth Circuit issued yesterday.
Posted at 17:20 by Howard Bashman



California death row inmate Kevin Cooper, in the news: Readers may recall that in February 2004, Cooper won a stay of execution from the U.S. Court of Appeals for the Ninth Circuit just hours before he was scheduled to be executed. Today The Los Angeles Times reports that "DNA Tests Ordered in Cooper's Appeal." And The San Diego Union-Tribune reports today that "Tests on hairs ordered in death row case."
Posted at 17:18 by Howard Bashman



ACLU dislikes cross but doesn't find Catholic rosary objectionable: The Los Angeles Daily News today contains an article headlined "ACLU won't contest city seal" that begins, "Fresh from victories to eliminate crosses from the Los Angeles County and the city of Redlands official seals, the ACLU took a pass Friday on making an issue out of the Catholic rosary that has encircled the seal of the city of Los Angeles for the past 99 years." You can view the seal of the City of Los Angeles, and read an explanation of its contents, at this link (one-page PDF file)
Posted at 17:11 by Howard Bashman



BREAKING NEWS -- Former President Ronald Reagan has died at the age of 93: The Associated Press provides this obituary. One of the topics sure to be reported on in the hours and days ahead will be the extent to which President Reagan's nominations to Article III courts influenced the federal judiciary in a way that few other U.S. Presidents have been able or willing to do.

Update: Both The New York Times (here) and The Washington Post (here) offer lengthy obituaries.
Posted at 16:56 by Howard Bashman



"Gonzales says memo just a draft": The Houston Chronicle today contains an article that begins, "White House counsel Alberto Gonzales on Friday defended a controversial memo he wrote concerning prisoner rights under the Geneva Conventions as a draft that never reached the president."

In somewhat related news, News 8 Austin reports that "Cornyn, Gonzales portraits dedicated to Texas Supreme Court."
Posted at 16:55 by Howard Bashman



"Court bid by Utahn in jeopardy; Lapse on paying dues may keep him off D.C. panel": The Deseret Morning News today contains an article that begins, "Failure to pay his local bar association dues for three years is now threatening to derail the nomination of Utahn Thomas B. Griffith to what is considered the nation's second-highest court: the Court of Appeals for the District of Columbia. His failure to pay the dues allowed his membership in the D.C. Bar Association to lapse. Membership is required for a law license in Washington. That led the Washington Post, which first disclosed the situation Friday, to say Griffith 'practiced law for three years in the District without a valid license,' and some are calling for investigations that could delay and possibly kill his confirmation." And The Salt Lake Tribune reports today that "Fed court nominee missed paying dues."
Posted at 16:44 by Howard Bashman



"Court: Don't blame cell-phone maker for crash." The Indianapolis Star today contains this article reporting on a decision that the Indiana Court of Appeals issued yesterday.
Posted at 16:32 by Howard Bashman



"Court clears path for Dixon's future": This article appears today in The Atlanta Journal-Constitution.
Posted at 16:26 by Howard Bashman



"Suit seeks to block .50-caliber rifle ban; Freedom of press, state law violated, opponents contend": Bob Egelko today has this article in The San Francisco Chronicle. And yesterday's issue of The Contra Costa Times reported that "Supporters challenge ban on some rifles."
Posted at 10:22 by Howard Bashman



"'3 strikes' challenge makes ballot; Fall measure's backers say penalties too harsh": Howard Mintz has this article today in The San Jose Mercury News.
Posted at 10:20 by Howard Bashman



In Saturday's newspapers: In The New York Times, Adam Liptak reports that "17 Ex-P.O.W.'s Set Back Again in Claim Against Iraq." An article reports that "U.N. Rights Chief Says Prison Abuse May Be War Crime." In other news, "Reschedule Girls' Soccer, 2 Schools Are Ordered." An article profiles "A Top Lawyer Who Kept Out of the Limelight, Until Now." In other news, "Spain and U.S. at Odds on Mistaken Terror Arrest." A related graphic can be accessed here. In business news, "Court Rejects Phone Rule Extension." In regional news, "Former Warden Acquitted in Dali Theft at Rikers"; "Judge Tosses Rules to Curb Acid Rain"; "Police and Protesters at Odds on Details for Convention"; and "State Lawyer to Aid Sikh Suing Police in Bias Case." And an editorial is entitled "A Victory for Abortion Rights."

The Washington Post reports that "Padilla Case Puts Lawyers in Limbo, Too; Defense Attorneys Unable to Rebut Justice's Claims." A front page article is headlined "Records Paint Dark Portrait Of Guard; Before Abu Ghraib, Graner Left a Trail Of Alleged Violence." In related news, "More Probes of Troops in Iraq, Afghanistan Announced." In business news, "Oracle Bid on PeopleSoft Goes to Trial; Justice Department Against Takeover." In regional news, "Barry Says Park Police 'Planted' Drugs in His Car in '02 Incident"; "NAACP Plans to Fight Exclusion at Catholic U.": and "D.C. Agency Probes Brazil's Use of Staff." And an editorial is entitled "A Healthy Decision."
Posted at 09:55 by Howard Bashman



"Don't expect to know verdict until at least Tuesday; Judge won't be back until then in Al-Hussayen case": This article appears today in The Idaho Statesman.
Posted at 09:36 by Howard Bashman



"Secularism gone awry in battle over LA's seal": Cathy Young has this op-ed today in The Boston Globe. Her essay quotes this blog post by Law Professor Eugene Volokh writing at "The Volokh Conspiracy."
Posted at 09:24 by Howard Bashman



"Supreme Court Justices Make Money on Side": Gina Holland of The Associated Press provides this report. You can access online the Personal Financial Disclosure reports of the Justices of the U.S. Supreme Court, made public on Friday by the Administrative Office of the U.S. Courts, via this link.
Posted at 00:11 by Howard Bashman



Friday, June 04, 2004
"Judge: Guns may be excluded from courtrooms, but not courthouses." This article appears today in The Pittsburgh Post-Gazette.
Posted at 23:52 by Howard Bashman



Today's Ten Commandments news: From Georgia, The Associated Press reports that "Barrow considering ending Ten Commandments legal battle."

And from Tennessee, The Monroe County Advocate & Democrat reports here that "Judge Thomas A. Varlan on Thursday denied the county’s motions to dismiss the American Civil Liberties Union’s lawsuit demanding that the Ten Commandments display be removed from the Monroe County Courthouse."
Posted at 23:33 by Howard Bashman



Elsewhere in Friday's newspapers: The Los Angeles Times reports that "Jury Adds Punitive Award in Ford Case." In other news, "Defense Seeks Mistrial in Gang-Rape Case; Attorney representing one of the defendants in videotaped incident says prosecutors prejudiced the jurors while questioning a witness." An article reports that "DNA Retesting Is Contentious in Bryant Case." In local news, "Contempt Order Against Attorney Is Thrown Out" and "City Attorney Agrees to Pay Fines for Ethics Law Breaches; Violations include exceeding fundraising limits; Panel will consider the $11,764 settlement proposal Tuesday." William Saletan has an op-ed entitled "Abortion Foes Let Their Zeal Trump Strategy." And letters to the editor appear under the headings "County Will Remove Cross on Official Seal"; "Voiding of Prohibition on Abortion Procedure"; and "Holding Defendants Without Charges."

USA Today reports that "Many scoff at N.J. ruling over 'ladies' nights'; Governor: Bias case is 'nonsense.'" And in other news, "Last bee is the best bee for spelling champ."

The Boston Globe reports that "Police union allowed to picket."

The Washington Times reports that "Spelling bee won by Indiana 8th-grader." An editorial is entitled "Terrorism and the courts." And Cal Thomas has an op-ed entitled "Why the right judge matters."
Posted at 23:05 by Howard Bashman



In news from Nebraska: The Omaha World-Herald reported yesterday that "Judge hears final pleas on 'partial-birth' abortion." And The Lincoln Journal Star reported that "Final arguments heard in abortion case."
Posted at 16:40 by Howard Bashman



Second Circuit affirms decision holding that public school districts violate Title IX by scheduling only girls' high school soccer for a time of year that makes teams ineligible for the state championship: You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 16:35 by Howard Bashman



"State Supreme Court upholds trooper's firing": The Indianapolis Star today contains an article that begins, "Ben Endres, a State Police trooper fired in 2000 for refusing to patrol a riverboat casino for religious reasons, has lost his legal fight to regain his job." Marcia Oddi offers more details here (second item) at "The Indiana Law Blog."
Posted at 16:32 by Howard Bashman



"Ban for cussing has library patron fuming; Writer says 1-year suspension violates his free-speech rights": This article appears today in The Ann Arbor News.
Posted at 16:30 by Howard Bashman



Small town news: The Aberdeen American News reports today that "Locals have role in beef checkoff case; Decision could be year or so away." The article begins, "A court case with its roots in Aberdeen has made its way to the U.S. Supreme Court."
Posted at 14:42 by Howard Bashman



"Bay State Judge Elected To Yale Board": The Hartford Courant today contains an article that begins, "Yale alumni have picked a judge who helped strike down the ban on gay marriage in Massachusetts to fill an open seat on the university's governing board, the Yale Corporation. Margaret Marshall, the first woman to serve as chief justice of the Massachusetts Supreme Judicial Court, was picked over two venture capitalists also nominated for a position on Yale's 17-member board. Her appointment was announced Thursday."
Posted at 14:33 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Court Panel Throws Out POW Judgment"; "Lawyers Aim to Spare Nichols' Life"; "Man Sentenced for Torching Lawyers' Cars"; and "Oregon Man Bites Dog Before His Arrest."
Posted at 14:01 by Howard Bashman



There may yet be "Peace in the Gulf": At least the slogan would be allowed to appear on a small highway billboard that an Oregon resident wishes to display from his own land if the grant of rehearing en banc that the U.S. Court of Appeals for the Ninth Circuit issued today produces a result opposite that reached back in December 2003 by a divided three-judge panel whose decision you can access here.
Posted at 13:40 by Howard Bashman



In Hawaii, lawyer narrowly rejected for state court judgeship may be nominated to fill federal court vacancy: This article appears today in The Honolulu Advertiser.
Posted at 12:12 by Howard Bashman



Yesterday at the Scott Peterson trial: The Los Angeles Times reports that "Witnesses Tell of Laci Peterson's Last Hours; Prosecutor details her actions in an apparent effort to show a pattern of lies by her husband." The San Francisco Chronicle reports that "Wife never spoke of affair; She didn't mention fishing boat either, witnesses testify." The Modesto Bee reports that "Peterson hearing keys on clothing." The San Jose Mercury News reports that "Witnesses' recollections in conflict; Prosecution case suffers from confusion on clothing." And The San Mateo County Times reports that "Distaso focuses on Laci's clothes; Defense questions accuracy of Modesto Police reports."
Posted at 11:54 by Howard Bashman



Seals and Cross (not to be confused with these guys): The Los Angeles Daily News today contains an article headlined "Big outcry over tiny cross; Board's compromise on county seal sparks outrage." And The Los Angeles Times reports today that "Mahony Asks That Cross Stay in Seal; The cardinal links the symbol, which the county plans to shed, to area's historic missions."
Posted at 11:44 by Howard Bashman



Recess appointees in the news: The Decatur Daily today reports that "Pryor exhibits pro-consumer side." And The Clarion-Ledger reports today that "Pickering encourages Boys State delegates."
Posted at 11:41 by Howard Bashman



"When I didn't burn the flag": Columnist Rick Casey has this essay today in The Houston Chronicle.
Posted at 11:38 by Howard Bashman



In case you missed it: As I first noted here last night, Lyle Denniston -- who most recently covered the U.S. Supreme Court for The Boston Globe -- has signed-on to cover the Court for "SCOTUSblog." The official announcement can be found at this link.

This most amazing news raises a bevy of questions. First, will Lyle be able to keep his Supreme Court press credentials now that he is writing for a blog instead of a major newspaper? If so, will the Supreme Court issue press credentials to other bloggers? And is the view better from the press section or the section where members of the Supreme Court's bar are seated? (Don't worry, I already know the answer to that final question.)

Rumors that I am angling to cover the Court for The Boston Globe are overblown. I continue to maintain that anyone who lives so far away from the Court that they are located outside the radius that includes Dahlia Lithwick's residence should not be covering the Court on a daily basis. Moreover, reporting on the Supreme Court can be dangerous business. Earlier this Term, a member of the Supreme Court's press corps sustained a fractured leg walking near the Court's grounds. Whether this injury was payback for less than entirely favorable coverage remains under investigation.

I do have a hunch that the money Lyle will make writing for "SCOTUSblog" will exceed what I am paid for allowing Legal Affairs to host this blog, thus causing Lyle to eclipse me as the person most highly paid for blogging about the law. I'll simply try to console myself with the fact that since opening my solo appellate litigation boutique in early February 2004, I've remained well on pace toward having my most financially rewarding year ever since I entered the private practice of law in 1991.
Posted at 11:07 by Howard Bashman



Plum the depths of commercial speech: In today's issue of The San Francisco Chronicle, Bob Egelko reports that "Farmers win ruling on fees for generic ads; Court gives state another chance on plums levy." And The Metropolitan News-Enterprise today reports that "Supreme Court Overturns Ruling That Struck Down Generic Commodities Advertising Program."
Posted at 11:04 by Howard Bashman



California death row inmate Kevin Cooper, in the news: Readers may recall that in February 2004, Cooper won a stay of execution from the U.S. Court of Appeals for the Ninth Circuit just hours before he was scheduled to be executed. Today The Los Angeles Times reports that "Judge Doubts Test Sought by Cooper Team; The blood procedure may not be scientifically sound, she says, and even the finding of a suspect substance may not prove police tampering." And The San Diego Union-Tribune reports that "Hearing for prisoner on death row reopens 1985 trial evidence."
Posted at 10:55 by Howard Bashman



Strike three, beheading the family pet: The Los Angeles Times today contains an article headlined "Owner Found Guilty in Dog Killing; O.C. man who beheaded his pet could get life in prison, if found sane; He killed the German shepherd after he and a girlfriend broke up."
Posted at 10:40 by Howard Bashman



U.S. Court of Appeals for the D.C. Circuit reverses $959 million judgment entered against Republic of Iraq, the Iraqi Intelligence Service, and Saddam Hussein: The judgment had been entered in favor of seventeen American soldiers, joined by their close family members, who were captured and held as prisoners of war by the Iraqi Government while serving in the Gulf War in early 1991.

Circuit Judge Harry T. Edwards wrote the majority opinion, in which Circuit Judge David S. Tatel joined. The majority rejected the U.S. government's argument that recently enacted provisions of the Emergency Wartime Supplemental Appropriations Act made the terrorism exception to the Foreign Sovereign Immunities Act inapplicable to Iraq and thereby stripped the district court of its jurisdiction over the plaintiffs' suit. The majority nevertheless reversed the judgment, holding that plaintiffs' suit failed to state a valid cause of action. Circuit Judge John G. Roberts concurred in the judgment dismissing the case. Judge Roberts would have held that the new legislation ousted the federal courts of jurisdiction in cases that relied on the terrorism exception to Iraq's sovereign immunity and that this ouster of jurisdiction is properly applied to pending cases. At one point in the opinion, Judge Roberts writes, "Give me English words over Latin maxims."

You can access the majority opinion here and Judge Roberts's opinion concurring in part and concurring in the judgment here.
Posted at 10:16 by Howard Bashman



In Friday's newspapers: The Washington Post reports that "Appeals Court Nominee Let His Bar Dues Lapse." In other news, "Phony Ex-Judge Receives 2 Years." In news relating to the war on terror, "Methods Used on 2 at Guantanamo" and "2 Marines Guilty of Abusing Prisoner." In business news, "Enron Defendants Say Evidence Was Withheld; Ex-CFO's Statements Key to Case." And an editorial is entitled "No Defense Possible."

The New York Times reports that "Religious Leaders Assail Amendment on Gay Marriage." In business news, "Enron Defendants Get Help From Unlikely Source." An article reports that "Rarely Used Courts Investigate El Paso Police and District Attorney." In sports, "Balco Founder and Prosecutors Meet, but No Plea Deal Is Made." An article reports that "Queens Man Was No Sultan, Prosecutor in Fraud Case Says." And a letter to the editor appears under the heading "The Jose Padilla Case."
Posted at 09:02 by Howard Bashman



"'Autochthonous' spells victory for Hoosier; South Bend teen wins national title": This article appears today in The Indianapolis Star.
Posted at 07:29 by Howard Bashman



You want recusal? I'll show you recusal! Today's issue of The Newark Star-Ledger contains an article headlined "It's 'mission accomplished' for judge who's leaving federal bench" that begins, "The fiery and always outspoken U.S. District Court Judge Alfred Wolin is stepping down from the bench at the end of the month, saying he has no regrets and a sense of 'mission accomplished.'" And in related coverage, The New York Times today reports that "Asbestos Bankruptcies Face Setbacks on Two Fronts." This development would, to put it mildly, seem to undermine the rehearing en banc petitions that have just been filed to overturn a recent ruling by a divided three-judge panel of the U.S. Court of Appeals for the Third Circuit recusing Senior U.S. District Judge Alfred M. Wolin from continuing to preside over three large asbestos-related bankruptcies.
Posted at 07:05 by Howard Bashman



"Vote on Michigan appeals court nominee delayed; Levin, Stabenow raise questions about Saad's fitness": This article appears today in The Detroit News. And The Washington Times today reports that "Michigan judicial pick held up for 20th time."
Posted at 06:55 by Howard Bashman



Thursday, June 03, 2004
Elsewhere in Thursday's newspapers: The Los Angeles Times reports that "O.C. Rape Jury Won't Hear Ex-Porn Actress' Testimony." In other news, "2nd Theory in Peterson Case Offered; Defense's Geragos says scruffy men in a white van may have abducted the pregnant woman; He vows to demolish the prosecution's case." An article reports that "Bush Consults With Lawyer Over Leak Investigation; The president had the conversation in case he needs to hire an attorney as a grand jury probes the illegal disclosure of a CIA agent's name." In news from Texas, "Durst's $3-Billion Bail Ruled Excessive." In regional news, "Sitcom Is a Reality Show for Suspect; A man accused of murder is exonerated months after the crime, thanks to HBO footage" (plus access Jeffrey Toobin's New Yorker article at this link); "Lockyer Suit to Accuse Enron of Manipulating State Power Market; The attorney general's office says prices were rigged and ratepayers are owed billions of dollars in refunds"; "Gang Said to Have Missed Filing Date; In doing so, prosecutor says Colonia Chiques lost their right to challenge an injunction"; and "Suspect in Death of Racer May Be Freed; Prosecutors have yet to appeal a ruling that they lacked jurisdiction to try Michael Goodwin in slayings of Mickey Thompson and his wife." Law Professor Jonathan Turley has an op-ed entitled "You Have Rights -- if Bush Says You Do." And letters to the editor appear under the heading "Initiative Backer Wants Lighter Sentence for Son."

USA Today reports that "Peterson defense calls murder case vindictive; Lawyer says fetus was born alive." In other news, "Tribunal lawyers say defense short on resources; Pentagon: Kinks being worked out." And an article reports that "Identical twins complicate use of DNA testing in crime solving."

The Boston Globe reports that "Bush consults lawyer on investigation into CIA leak." And in other news, "Defense eyes DNA evidence in rape trial."

The Washington Times reports that "'Ladies' Night' ruled discriminatory." An editorial is entitled "Impeach Judge Hamilton." And Gary J. Andres has an op-ed entitled "The gavel and the bench."
Posted at 23:40 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Closed Hearing Held in Moussaoui Case"; "Court Blocks Convicted Killer's Execution"; "Prosecution Rests in Nichols Penalty Phase"; "Laci Peterson's Clothing Focus of Trial"; "Mom Who Delayed C-Section Going to Rehab"; and "Elephant the Center of a Legal Fight."
Posted at 23:30 by Howard Bashman



Today's newspapers report on the Scott Peterson trial: The San Francisco Chronicle today contains an article headlined "Baby likely born alive, defense says; Lawyer's opening statement mocks Modesto police." The Modesto Bee contains an article headlined "Geragos: Where's the proof?" The San Jose Mercury News reports that "Defense tries to chip away at the case against Peterson; Cops stacked deck against his client and ignored other leads, lawyer says." And The San Mateo County Times today contains articles headlined "Geragos deconstructs prosecution's case against Peterson; Defense attorney: Fetus was born full-term therefore defendant's not responsible for murders" and "Geragos: Prosecutors have nothing on Peterson."
Posted at 23:24 by Howard Bashman



Available online from law.com: Shannon P. Duffy reports that "3M Co. Could Be Stuck With $68M Verdict" and "Class Action Yields $60.7 Million in Legal Fees." Jonathan Ringel reports that "11th Circuit Reinstates Pledge-Protest Suit; Alabama student punished for raising fist during Pledge." An article published in The American Lawyer is headlined "One Lump or Two? Infamous coffee-burn case -- which inspired both caricature and quiet reform -- about to get a 10th-anniversary rerun." And in news from New York, "Panel Reinstates Award Vacated for Litigator's Behavior."

Also available online from The American Lawyer are articles headlined "Breaking the Marriage Barrier: After leaving Am Law 200 partnership to be S.F.'s top litigator, attorney leads the defense of its same-sex wedding policy" and "Same-Sex Weddings Argued."
Posted at 23:01 by Howard Bashman



"Spelling Bee Championships": This evening's broadcast of NPR's "All Things Considered" contained this report (Real Player required).

Relatedly, a reader emails:
I Googled the winning word for this year's National Spelling Bee (autochthonous) and came across a word (listed on the bottom of the "Brainy Dictionary" page with the definition of autochthonous) that Judge Selya (or someone else) might wish to consider incorporating in an opinion: batrachomyomachy.

Its literal meaning is "battle of mice and frogs." Figuratively, it is used to mean a fight over nothing. That should be pretty easy to work into an opinion, don't you think?

I did a quick search on LEXIS and as far as I could tell, it had not been used in any opinions or law review articles.
I'm sure either First Circuit Judge Bruce M. Selya or Senior Ninth Circuit Judge Ferdinand F. Fernandez in short order will work this word into one of their forthcoming opinions.
Posted at 22:40 by Howard Bashman



"GOP Nader, RIP: Roy Moore would rather take his Decalogue case to the Supreme Court than become a presidential spoiler; Damn." Timothy Noah has this chatterbox essay online at Slate today.
Posted at 22:27 by Howard Bashman



Reporter Lyle Denniston to write about the U.S. Supreme Court for "SCOTUSblog": You can access a post communicating this exciting news at this link. Don't despair -- my negotiations with Linda Greenhouse, Charles Lane, David G. Savage, Jan Crawford Greenburg, Stephen Henderson, Michael McGough, Tony Mauro, Joan Biskupic, Dahlia Lithwick, and Nina Totenberg to cover the Court for "How Appealing" are continuing full speed ahead.
Posted at 22:16 by Howard Bashman



"Ford ordered to pay nearly $369 million to woman paralyzed in Explorer rollover": The Associated Press provides this report. The total consists of $122.6 million in compensatory damages that a San Diego-based state court jury awarded yesterday and $246 million in punitive damages awarded today. And Reuters reports that "Ford Told to Pay $246 Million."
Posted at 22:04 by Howard Bashman



"County seal may be altered; ACLU complaint may remove cross": This article appears today in The Los Angeles Daily News.
Posted at 16:44 by Howard Bashman



"Cruise lines wonder: How far does law sail?" The Miami Herald today contains an article that begins, "Norwegian Cruise Line has settled a wrongful death case involving a 13-year-old boy but is still pressing for a ruling on how far Florida's jurisdiction extends into the sea."
Posted at 16:41 by Howard Bashman



T-shirt leads to li-T-gation: The San Diego Union-Tribune today reports that "Student sues district over T-shirt against gays; Poway High youth calls his suspension a violation." Reuters reports that "Calif. Boy Sues School Over Anti-Gay T-Shirt Ban." And The Associated Press reports that "Calif. Schools Sued for Suspending Teen."
Posted at 16:38 by Howard Bashman



More National Spelling Bee news: A reader emails:
Just as an fyi, the winner of the spelling bee is the son of Law School Professor Jay Tidmarsh at the University of Notre Dame---I had him for several classes and thought he was one of the smartest, kindest, and most talented persons I have ever met.
Bloomberg News reports that "Indiana Boy Spells 'Autochthonous' to Win National Spelling Bee." And The Indianapolis Star reports that "Hoosier is spelling bee champion; South Bend's David Tidmarsh survives grueling national competition; Contestant from Indianapolis one of 26 who survived into afternoon rounds." You can see the words that both the winner and the runner-up were asked to spell by clicking on the preceding links.
Posted at 16:21 by Howard Bashman



In today's issue of The Newark Star-Ledger: Today's newspaper contains an article headlined "Other justices bid farewell to Verniero" that begins, "He was called unqualified and narrowly dodged impeachment, but Justice Peter Verniero leaves the New Jersey Supreme Court with praise and admiration from the six people who arguably know him best -- his fellow justices."

And in unrelated news, an article reports that "Clerk questioned in sex case against judge."
Posted at 15:35 by Howard Bashman



"Court halts judge's order to register gay marriage licenses; The appellate ruling comes days before a deadline for Oregon to start processing more than 3,000 licenses": The Oregonian today contains an article that begins, "The Oregon Court of Appeals has temporarily halted a judge's order requiring state officials to register the licenses of more than 3,000 same-sex couples who got married in Multnomah County in March and April."
Posted at 15:33 by Howard Bashman



"Alleged Memogate Conspirator Says Fighting Judicial Nominees Is Left's Priority": CNSNews.com today provides this report.
Posted at 15:32 by Howard Bashman



"Mo. Court Rules on Gay Marriage Amendment": The Associated Press reports here that "The Missouri Supreme Court ruled Thursday that a proposed constitutional amendment banning gay marriage should be on the August ballot - a victory for Democrats seeking to steer the contentious issue away from the November general election." You can access today's ruling of the Supreme Court of Missouri at this link.
Posted at 14:44 by Howard Bashman



U.S. Court of Appeals for the Third Circuit breaks evenly divided split among eight other federal appellate courts over what Chapter 7 bankruptcy debtors with car loans must do to retain their automobiles: You can access today's ruling by a divided three-judge panel at this link. Circuit Judge Marjorie O. Rendell wrote the majority opinion, in which Senior Circuit Judge Ruggero J. Aldisert joined. The majority sided with the more debtor-friendly half of the circuit split. Circuit Judge Dolores K. Sloviter dissented, because in her view the case is moot.
Posted at 14:27 by Howard Bashman



National Spelling Bee as useful background for clerkship on U.S. Court of Appeals for the First Circuit: Over the lunch hour, I managed to watch some of this afternoon's live telecast of the National Spelling Bee on ESPN. Given the obscurity of so many of the words in the competition (the current round included the words heldentenor, scutellate, lyophilize, vernissage, mithridatism, resipiscence, and balancelle), I can't help but think that viewing the competition should be required of anyone who will have to work with the published opinions of First Circuit Judge Bruce M. Selya.
Posted at 14:15 by Howard Bashman



Access today's commercial speech ruling of the Supreme Court of California: The decision is available online at this link. This morning I previewed the questions presented in a post you can access here.
Posted at 13:18 by Howard Bashman



"U.S. Senate committee fails to reach compromise on Michigan judge": The Associated Press provides this news update. Earlier reports that today would be a happy day for Sixth Circuit nominee Henry W. Saad have turned out to be inaccurate.
Posted at 12:36 by Howard Bashman



"$123 million awarded in SUV rollover": The San Diego Union-Tribune today contains an article that begins, "A San Diego woman paralyzed two years ago when the Ford Explorer she was driving rolled over on Interstate 8 has been awarded nearly $123 million by a local jury. The case marks the first jury verdict lost by Ford Motor Co. in nearly a dozen cases that have gone to trial challenging the safety of the nation's best-selling SUV." In other coverage, The Los Angeles Times today reports that "Jury Orders Ford to Pay $122.6 Million; The award to a woman paralyzed in a wreck of an Explorer is the first based on a finding that the SUVs are defective."
Posted at 12:08 by Howard Bashman



Ten Commandments news: In news from North Dakota, The Associated Press reports that "Both sides in Fargo Ten Commandments lawsuit seek judge's ruling."

From Alabama, The Birmingham News has an article headlined "United or divided? GOP's Moore effect." The AP reports that "Moore's slate makes its mark." And The Auburn Plainsman contains an editorial entitled "No room for 'activist judges.'"

Finally, from Utah, The Salt Lake Tribune contains an editorial entitled "Etched in stone" that begins, "According to one federal judge, a stone version of the Ten Commandments can stay in a Pleasant Grove park because the monument is 'primarily secular in purpose.' Too many more victories like that, and the Ten Commandments won't have any religious meaning left. It's hard to see how the faithful could consider that progress." And The Daily Herald of Provo contains an editorial entitled "Religious freedom in Pleasant Grove."
Posted at 11:50 by Howard Bashman



"Bush Consults Lawyer about CIA Leak Probe": Nina Totenberg had this report (Real Player required) on today's broadcast of NPR's "Morning Edition."
Posted at 11:46 by Howard Bashman



Highway kept kontinually klean by Unit 188 of the Knights of the Ku Klux Klan: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit affirmed a trial court's ruling that Missouri had unlawfully denied Unit 188's application to participate in that State's Adopt-A-Highway program. Today's opinion concludes:
In sum, our holding in Cuffley II establishes that the State may not deny Unit 188's AAH application because it discriminates on the basis of race, and exclusion of Unit 188 pursuant to the "history of violence" regulation unconstitutionally restricts its expressive and associational rights. We thus affirm the district court's grant of the plaintiffs' motion for summary judgment.
You can access today's decision in its entirety at this link.
Posted at 11:33 by Howard Bashman



"Conservatives Grumble Over Judicial Deal": Jesse J. Holland of The Associated Press has an article that begins, "Conservatives are grumbling that President Bush let Senate Democrats snooker him when he agreed to quit using recess appointments to install his most contentious nominees on federal appeals courts while Congress is out of town."
Posted at 11:21 by Howard Bashman



Happy news for Sixth Circuit nominee Henry W. Saad: The Associated Press reports here that "A Senate committee is expected to end a lengthy standoff between Republicans and Democrats and vote on whether to recommend Michigan Court of Appeals Judge Henry Saad to a federal appeals court." The vote is expected to occur at today's executive business meeting of the Senate Judiciary Committee. It appears that the meeting may be televised live online -- if so, click here to access the video feed (Real Player required) after the meeting gets underway at 9:30 a.m. eastern time.

Update: As those who have tried to access the video feed already know, in fact the meeting is not being televised live online.
Posted at 09:10 by Howard Bashman



On the agenda: At 10 a.m. pacific time today, the Supreme Court of California is scheduled to issue an opinion in a case that presents the following questions:
(1) What is the appropriate test under article I, section 2 of the state Constitution for determining when the government may compel the funding of collective commercial speech? (2) Is the government interest in an agricultural product marketing order illusory if it allows the majority of those affected by the order, rather than the government, to decide how the program should operate?
Once the decision issues, it will be available online via this link. Back in March 2004, The Recorder offered this preview of the case.
Posted at 08:55 by Howard Bashman



"Al-Hussayen awaits the jury's verdict; Jury tackles 58 pages of judge's instructions": This article appears today in The Idaho Statesman.
Posted at 07:00 by Howard Bashman



In Thursday's newspapers: The New York Times reports that "Bush Finds a Lawyer to Use if Called in C.I.A. Leak Case." In other news, "At Peterson's Trial, His Lawyer Describes a Cad, but Not a Murderer." An article reports that "F.B.I. Looks for Terrorist Link to 2 Arrested in Identity Theft." In regional news, "New York State Official Sues Drug Maker Over Test Data" and "Man With Flair for Reinventing Himself Goes a Step Too Far." Robert B. Semple Jr. has an Appreciations essay entitled "A Special Prosecutor." And letters to the editor appear under the heading "Prisoner Abuse, in Iraq and Here."

The Washington Post reports that "Bush Consults Lawyer About CIA Name Leak." In other news, "Judge Voids Law Against Drug Ads On Metro; Pro-Marijuana Groups Hail Free Speech Ruling." An article reports that "Events Forcing Abortion Issue on Kerry; Reticence as Much Personal As Political, His Aides Say." In other news, "N.Y. Sues Paxil Maker Over Studies On Children; Negative Data Withheld, Attorney General Says." An article reports that "Ohio Prisons Go Gladly to the Dogs; Inmates Care for Throwaways And Help Themselves as Well." Columnist Richard Cohen has an op-ed entitled "It's Not the American Way." And letters to the editor appear under the heading "Archibald Cox: 'A Man of Grace and Dignity.'"
Posted at 06:50 by Howard Bashman



"Justice Stevens' quiet strength can be persuasive": Joan Biskupic has this profile in Thursday's issue of USA Today.
Posted at 00:12 by Howard Bashman



Wednesday, June 02, 2004
Elsewhere in Wednesday's newspapers: In The Los Angeles Times, David G. Savage reports that "Teens' Miranda Rights Redefined; No Special Treatment Because of Age, Supreme Court Says" and "$2.25-Million Verdict in Investor's Libel Suit Is Upheld." In other news, "Judge Voids Ban on Abortion Procedure; Law on 'partial birth' operation doesn't meet Supreme Court guidelines, jurist rules." An article reports that "Probe Fails to Support Cooper Claims; State says it found no proof to back the death row inmate's assertions that others killed Chino Hills family; Hearing on evidence starts today." In other news, "Government Says Padilla Plotted High-Rise Attacks; Allegations are released as the Supreme Court prepares to rule on his arrest and detention." In celebrity justice-related news, "Case Against Peterson Laid Out; Prosecution delivers a detailed chronology of events as trial begins for the man accused of killing his wife and unborn son" and "Bryant Accuser's Name OK for Trial." In business news, "Chevron, Shell to Face Antitrust Trial; A federal appeals court reverses the dismissal of a lawsuit brought by L.A.-area gas station owners over the firms' joint ventures" (plus, access yesterday's ruling by a divided three-judge Ninth Circuit panel at this link.) And in regional news, "Moving? Not if you want to keep custody; In the aftermath of a California ruling, divorced couples struggle with issues of relocation and what's best for the children"; "Judge Signs Gang Injunction; The move allows Oxnard police to control Chiques members' behavior within a large 'safety zone'; Opponents vow to carry on their fight"; "Prominent Lawyer Charged With Making Illegal Gifts; Pierce O'Donnell is accused of donating to the mayor's campaign in others' names, then repaying them; Other attorneys also charged"; "Inmates' Medical Tab Nears $1 Billion; Breast reduction surgery for a male prisoner is among the stories that outrage lawmakers"; and "Reporter in Seagal Stories Files Suit; She accuses a former private investigator of harassment."

USA Today reports that "Padilla case presents dilemma of law vs. security; White House awaits ruling on holding terror suspect without legal counsel." In related news, "Government fills in depiction of Padilla; Terror suspect allegedly agreed to blow up apartment buildings." An article reports that "Federal judge blocks 'partial-birth abortion' ban; Rules that law is unconstitutionally vague." And in other news, "Prosecutors target Peterson love affair; Secret relationship cited as trial opens."

The Washington Times reports that "Abortion ban ruled unconstitutional." In other news, "Padilla tied to apartment plot." An article reports that "Kerry criticized on Patriot Act." And Bruce Fein has an op-ed entitled "Bogus Federalism."

The Boston Globe reports that "US says Padilla plotted to blow up high-rises." And in other news, "Accord reached on July protests; City to spur OK's for convention."
Posted at 23:22 by Howard Bashman



Available online from law.com: An article reports that "Judicial Campaigning Lands at Supreme Court Doorstep." In news from California, "Federal Judge Ices Ban on 'Partial-Birth' Abortion; Lengthy order says Congress stacked the deck in finding procedure isn't medically necessary"; "9th Circuit Won't Rehear Gun Liability Case"; and "E-Mail's Flame Sets Bridge Ablaze" (plus, access the complete email at this link via the "Gawker" blog). In news from New York, "Panel Overturns 81 Insider Trading Counts; Venue is held wrong for most charges against three defendants." And in news from Georgia, "Judge Sides With Newspaper in Jewell Libel Case; Judge Mather won't force newspaper to reveal sources."
Posted at 23:00 by Howard Bashman



"Judge: Ad Restrictions Unconstitutional." The Associated Press reports here from Washington, DC that "A judge said Wednesday that a federal law aimed at restricting the display of paid, pro-marijuana ads in buses and subway stations is unconstitutional, improperly infringing on free speech rights."
Posted at 22:52 by Howard Bashman



"Indictment dismissed; AG intends to pursue streetlight case": Thursday's issue of The Pacific Daily News contains an article that begins, "A Superior Court of Guam judge late yesterday afternoon dismissed a case against former Gov. Carl Gutierrez and three others because exculpatory evidence was not presented to the grand jury."
Posted at 22:47 by Howard Bashman



Kool & The Gang could not be reached for comment: The Philadelphia Inquirer reports today that "N.J. ruling says ladies' nights are unlawful."
Posted at 22:10 by Howard Bashman



In news from New Jersey: The Associated Press reports that "Verniero hears arguments for final time as Supreme Court justice."
Posted at 22:01 by Howard Bashman



"Diocese appeals Charities contraceptives case to U.S. Supreme Court": The Catholic News Service provides this report. And The Sacramento Business Journal reports that "Diocese will appeal charities ruling."
Posted at 21:59 by Howard Bashman



In news from Tennessee: The Associated Press reports that "State fights damages in ADA case." The case in question is the very same case that the U.S. Supreme Court decided on May 17, 2004 (access that decision here).
Posted at 21:53 by Howard Bashman



"ACLU challenge prompts dress code change; Newport News schools eliminate the requirement that female students wear dresses to graduation based on complaints made to the ACLU": This article appears today in The Daily Press of Hampton Roads, Virginia.
Posted at 21:03 by Howard Bashman



"Proof, Negative: The Justice Department's triumphant victory over the Constitution." Slate has recently posted online this jurisprudence essay by Dahlia Lithwick.
Posted at 20:58 by Howard Bashman



"Two Men Convicted of Stealing Petroglyphs": The Associated Press reports here from Reno, Nevada that "Two men who removed 1,000-year-old Indian rock carvings from a national forest and used some of the 300-pound boulders as lawn ornaments were convicted Wednesday of theft of government property. They were acquitted of violating archaeological protection law."
Posted at 17:34 by Howard Bashman



The Ten Commandments are secular? This morning I linked to news coverage of this past Friday's ruling of the U.S. District Court for the District of Utah. A copy of the ruling is now available online at this link.
Posted at 17:14 by Howard Bashman



U.S. Court of Appeals for the Third Circuit announces details of oral argument in FAIR v. Rumsfeld, the case challenging the legality of the Solomon Amendment: Oral argument will occur at noon on Wednesday, June 30, 2004 in Philadelphia. The court has allotted thirty minutes per side to the parties with an additional fifteen minutes (per side?) for counsel for amici.

The three-judge panel assigned to hear argument and decide the appeal consists of Circuit Judge Thomas L. Ambro and Senior Circuit Judges Ruggero J. Aldisert and Walter K. Stapleton.

You can access more information about the case via this page (which includes a link to the amicus brief that I filed on behalf of several law student veterans' groups).
Posted at 16:44 by Howard Bashman



"Different Strokes, Different Folks": CBS News analyst Andrew Cohen today has an essay addressing the question "After two years of near-silence about Padilla, why would it suddenly become appropriate to release all this detail?"
Posted at 16:27 by Howard Bashman



"Gay Couple Feels Pressured To Marry": This article appears in today's issue of The Onion.
Posted at 16:24 by Howard Bashman



Divided three-judge panel of the U.S. Court of Appeals for the First Circuit holds, notwithstanding the plain language of the supplemental jurisdiction statute, that each plaintiff in a diversity action must separately satisfy the amount-in-controversy requirement: You can access today's decision at this link. Circuit Judge Sandra L. Lynch wrote the majority opinion, in which Chief Judge Michael Boudin joined. The majority opinion begins:
In April 1999, Beatriz Blanco-Ortega, then nine years old, cut her right pinky finger on a can of Star-Kist tuna. That is not normally the stuff of lawsuits in federal court, but her injuries were more than trivial and led to surgery, the prospect of future surgery, and minor permanent disability and scarring. Beatriz, along with her parents and sister, sued in federal court, asserting diversity jurisdiction. 28 U.S.C. sec. 1332. The claims of Beatriz's family members were composed of emotional distress damages, with the mother asserting medical expenses as well. Plaintiffs' choice of federal court was no doubt influenced by the fact that civil jury trials are unavailable in the local courts of Puerto Rico.
Circuit Judge Juan R. Torruella dissented in an opinion you can access here. Someday the U.S. Supreme Court will resolve the sharp division of authority that exists among the U.S. Courts of Appeals on this question.
Posted at 14:45 by Howard Bashman



"Banana Slugs" is two words, "Billikens" is only one, but what about "Tarheels"? These three college nicknames appear on the third page of Seventh Circuit Judge Terence T. Evans's quite entertaining opinion issued yesterday.

A reader who practices law in the State of North Carolina emailed this morning:
The Seventh Circuit opinion by Judge Evans incorrectly states the name of the University of North Carolina's athletic teams as one word -- Tarheels -- when in fact it is two words -- Tar Heels. Some alumni like me get very picky about this. See, for instance, this link explaining the origin of the name. Or see the website for UNC's daily newspaper, The Daily Tar Heel which by its name makes it clear Tar Heel is two words.
Those readers more interested in the substance of yesterday's ruling likely will enjoy this post at the "Random Mentality" blog.

In press coverage of yesterday's ruling, The Chicago Sun-Times contains an entertaining report headlined "Verdict delivered on mascots." The News-Gazette of Champaign, Illinois reports today that "Ruling against UI upheld by appeals court." And The Associated Press reports that "7th Circuit rules against University of Illinois in mascot dispute."
Posted at 14:22 by Howard Bashman



"DNC Invites Some 'Bloggers' to Convention": The Associated Press provides this report.
Posted at 14:20 by Howard Bashman



"The Logic of Torture": Mark Danner will have this essay (the second in a two-part series; part one I previously linked to here) in the June 24, 2004 issue of The New York Review of Books.
Posted at 14:10 by Howard Bashman



"Peterson Defense Attacks Case As Flimsy": The Associated Press provides this report.
Posted at 13:50 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Judge Dismisses Two Nichols Jurors" and "Closing Arguments in Neb. Abortion Case."
Posted at 11:55 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": This morning's broadcast contained segments entitled "Court Overturns Federal Ban on Some Abortion Types" and "U.S. Details Alleged Padilla Terror Plots."
Posted at 11:51 by Howard Bashman



"Lawsuit over $4.80 lunch tab to be dropped": This article appears today in The Omaha World-Herald.
Posted at 11:48 by Howard Bashman



"Facing Suit, County to Remove Seal's Cross": Today's issue of The Los Angeles Times contains an article that begins, "Los Angeles County supervisors on Tuesday ended an emotional debate over the symbolism of the tiny gold cross on the county seal by deciding to remove it rather than defend it against a threatened ACLU lawsuit. Advised by county attorneys that the cross might not withstand a court challenge, the Board of Supervisors voted to seek a compromise with the ACLU -- perhaps by replacing the cross with images of a Spanish mission and Native Americans." You can view at this link an image of the seal of Los Angeles County as it currently appears.
Posted at 11:25 by Howard Bashman



"Minibottle issue goes public; Voters to decide if state sticks with 1.7-oz. liquor bottles": Today's issue of The Charleston Post and Courier contains an article reporting that "minibottles are written into the state constitution." A quick look at the Constitution of South Carolina turns up this provision.
Posted at 10:52 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "New Padilla Info Not Part of Court Case." And in other news, "Penalty Phase Opens in Nichols Trial."
Posted at 10:45 by Howard Bashman



Guam dispute demonstrates the difficulties that can arise when the judiciary serves as the Attorney General's landlord: Today's edition of The Pacific Daily News contains an article headlined "AG set to battle rent in court" that begins, "Attorney General Douglas Moylan said yesterday he will not agree to using $436,000 from his office's budget to pay for rent and his office is preparing to defend itself in court. The attorney general's office is on the brink of eviction from the Guam Judicial Center in Hagatna after the Judiciary of Guam sent a notice Friday stating that the AG's office has five days to pay long-overdue rent. The AG's office lease agreement also will be terminated by June 30. The attorney general's office occupies 14,355 square feet at the judicial building and has not paid rent since 1996." Today's newspaper also contains an editorial entitled "Hold off: Judiciary must be reasonable and delay demands for AG rent until fiscal 2005."
Posted at 10:30 by Howard Bashman



In news from California: In The San Francisco Chronicle, Bob Egelko reports that "Judge rejects limits on abortion; Law criminalizing 'partial-birth' procedure called unconstitutional, threat to women." And in other news, "Prosecutor lays out his case for jury; D.A. reveals new details in opening statement in trial of Modesto man charged with killing pregnant wife."

In The Sacramento Bee, legal affairs writer Claire Cooper reports that "Court tosses curb on abortion; A San Francisco federal judge says the Partial Birth Abortion Ban Act is 'grossly misleading.'"

In The San Jose Mercury News, Howard Mintz reports that "Judge blocks ban on late abortions." And in news relating to the Scott Peterson trial, "Prosecutor reveals early tale of golf trip" and "Raucous crowd arrives early for chance to win hot ticket."

In The Oakland Tribune, Josh Richman reports that "Judge rejects abortion ban; Outlawing partial-birth proceedings unconstitutional, jurist rules in S.F." And in other news, "Medical marijuana merchant defies Oakland order to close; Others might go underground, as city's new rule gets mixed reaction from consumers, business owners."

The Modesto Bee reports today that "Peterson trial begins" and "Courtroom unnerved by photographs."

Finally, The San Mateo County Times reports that "Opening arguments begin; Prosecution uses entire first day in Peterson trial; Geragos to do the same today."
Posted at 10:05 by Howard Bashman



"Judge backs city on Ten Commandments": This article appears today in The Salt Lake Tribune. And The Deseret Morning News today contains an article headlined "Ruling that marker is secular stirs debate; Group will ask court to reconsider."
Posted at 06:55 by Howard Bashman



"Parker beats Justice Brown in Supreme Court Place 1 race": The Birmingham News today contains an article that begins, "Former Chief Justice Roy Moore backed four candidates in the Alabama Republican primary, but only one scored an outright victory Tuesday night." And The Associated Press reports here that "A narrow win by Roy Moore's former top aide in a Republican primary for the Alabama Supreme Court helped salvage a night in which three other acolytes of the ousted chief justice fell short of victory."
Posted at 06:50 by Howard Bashman



In Wednesday's newspapers: In The New York Times, Linda Greenhouse reports that "Teenager's Murder Conviction Is Reinstated After Challenge Based on Miranda." Adam Liptak reports that "U.S. Judge in San Francisco Strikes Down Federal Law Banning Form of Abortion." In other news, "U.S. Court Blocks Rules for Snowmobile Emissions." In celebrity justice-related news, "Judge Rules Bryant Accuser May Not Be Called 'Victim'" and "Prosecutor Outlines the Case Against Peterson." In regional news, "Panel Members Discuss Withdrawing Rowland Subpoena to Avoid a Court Battle." An editorial is entitled "Interstate Wine Sales." And a letter to the editor appears under the heading "Judicial Ethics."

In The Washington Post, a front page article reports that "U.S. Details Case Against Terror Suspect." In somewhat related news, "U.S. Raids N.Va. Office Of Saudi-Based Charity." An article reports that "Database on U.S. Visitors Set for Huge Expansion; Reston Firm's Contract Worth Up to $10 Billion." And in other news, "Judge Orders Tobacco Firm to Turn Over Key Memo."

Finally, The Christian Science Monitor contains an editorial entitled "Quash These Press Subpoenas."
Posted at 06:30 by Howard Bashman



"Timing for gay marriage ban vote is argued": The St. Louis Post-Dispatch today contains an article that begins, "The Missouri Supreme Court on Tuesday plunged into the legal fight over when the state should vote on a gay marriage ban, but during nearly 40 minutes of oral arguments, the court provided few hints on how it might rule."
Posted at 06:25 by Howard Bashman



"Al-Hussayen lawyers sum up their cases": The Idaho Statesman today contains this article.
Posted at 06:22 by Howard Bashman



Tuesday, June 01, 2004
"Wag of the capital blog set; In her Washington Web log, Wonkette.com, Ana Marie Cox is proud to be utterly shameless": This article will appear in Wednesday's issue of The Los Angeles Times. Why is Ana Marie Cox so good? Because she once worked at Suck.com, and it ruled.
Posted at 23:47 by Howard Bashman



Elsewhere in Tuesday's newspapers: USA Today reports that "Peterson trial begins today in California; Legal experts say case could take six months." In other news, "3rd of detainees who died were assaulted; Shot, strangled, beaten, certificates show." And an editorial is entitled "Let death penalty die."

The Los Angeles Times reports that "Peterson's Murder Trial to Start Today; After a lengthy jury-selection process, arguments to begin in the case of the Modesto man accused of killing his wife and unborn son." In other news, "Safer Smokes on the Way, but Only One State Benefits." And an article reports that "2 Probes Target Hahn Supporter; A Los Angeles attorney allegedly asked his employees to contribute to the mayor's campaign and then reimbursed them, sources say."

The Boston Globe reports that "Same-sex wedding greetings not yet in the cards; Notes of congratulations are often difficult to find."

Finally, The Washington Times contains an editorial entitled "Joe Curran and the death penalty."
Posted at 23:30 by Howard Bashman



On this evening's broadcast of NPR's "All Things Considered": The broadcast contained segments entitled "Court Overturns Law Banning Some Abortions"; "State Court Sets Limit on Moving Children in Custody"; and "U.S. Says Padilla Conspired with Al Qaeda."
Posted at 23:20 by Howard Bashman



Sometimes I'll write blog posts whose connection to the law are not readily apparent: Back on Saturday, November 16, 2002, I wrote here that the HBO program "Curb Your Enthusiasm" is a wonderful television show. Today The Associated Press offers an article headlined "HBO Filming Helps Free Accused L.A. Man" that begins, "'Curb Your Enthusiasm,' an HBO show known for its acerbic wit, accidentally helped deliver a happy ending to a man who had been charged with murder."
Posted at 23:15 by Howard Bashman



The Associated Press is reporting: Gina Holland has an article headlined "Court: No Special Interrogating for Teens." In other news, "Justice Urges Graduates to Serve Public"; "Mo. High Court Hears About Gay Marriage"; "Ten Commandments Influence Ala. Primary"; "Court Backs Deportation of Former Nazi"; "Court Upholds Snowmobile Pollution Rule"; "Court Makes Right-To-Die Case Ruling"; "Prosecutors: Peterson Lied About Affair"; "Prosecutors Say Nichols Deserves to Die"; "Computer Terrorism Trial Goes to Jury"; "Judge to Tobacco Company: Hand Over Memo"; "Cheney Slams Kerry for Patriot Act Doubts"; "Utah Mom Who Delayed C-Section Is Sought"; and "Lawyer Accused of Illegal Campaign Gifts."
Posted at 23:00 by Howard Bashman



"Ban on Type of Abortion Reversed; Partial-Birth Law Faces Challenges": Wednesday's issue of The Washington Post will contain this front page article. And in The New York Times, Adam Liptak has a news update headlined "Law Limiting Abortion Is Ruled Unconstitutional by Judge."
Posted at 22:40 by Howard Bashman



"U.S. Releases Details on 'Dirty Bomb' Plot": The Los Angeles Times provides this news update. Wednesday's issue of The New York Times will report that "U.S. Spells Out Dangers Posed by Plot Suspect." The Washington Post has a news update headlined "Padilla Targeted High-Rise Apartments." And the Knight Ridder Newspapers report that "Suspect planned to blow up hotels, apartment buildings, U.S. says."
Posted at 22:37 by Howard Bashman



"Supreme Court Reinstates Murder Conviction of Teenager": Linda Greenhouse of The New York Times provides this news update. In Wednesday's issue of The Washington Post, Charles Lane will report that "Rules for Interrogating Juveniles Are Upheld; High Court Rejects New Restraints on Police." In Wednesday's issue of The Christian Science Monitor, Warren Richey will report that "Court nixes extra warnings for teen suspects; It says juvenile suspects are not entitled to more deferential treatment than adults on Miranda warnings." And Stephen Henderson of the Knight Ridder Newspapers reports that "Supreme Court sides with police, further limits Miranda rights."
Posted at 22:17 by Howard Bashman



"Slate's Jurisprudence: Testing the Limits of Free Speech." Today's broadcast of NPR's "Day to Day" included this report (Real Player required) featuring Dahlia Lithwick.
Posted at 17:40 by Howard Bashman



"Regrettably, it appears that Judge Evans has misspelled the name of the much-loved banana slug Ariolimax dolichophallus": Seventh Circuit Judge Terence T. Evans's quite entertaining opinion issued today has spawned yet another email. It reads:
Regrettably, it appears that Judge Evans has misspelled the name of the much-loved banana slug Ariolimax dolichophallus, as can be shown by reference to, for example, this Web page. Furthermore, in accordance with the International Code of Zoological Nomenclature, the scientific name of an animal species should be printed in italics, with the generic name (here Ariolimax) capitalized.
It appears that the reader who sent this email is correct, as evidenced further at this Web page and at a Web page entitled "To Chew or Not To Chew: Penis chewing as an adaptive partner manipulating strategy in Banana Slugs? (Ariolimax dolichophallus Mead)."
Posted at 17:27 by Howard Bashman



U.S. Court of Appeals for the Eighth Circuit grants rehearing en banc in the judicial electioneering case of Republican Party of Minnesota v. Kelly: Thanks to Law Professor Rick Hasen for passing along this news. The order granting rehearing en banc can be accessed at this link.

The Eighth Circuit's most recent ruling in the case, by a divided three-judge panel, can be accessed here and my report on that ruling is here. Back in June 2002, while this case was pending on the merits before the U.S. Supreme Court, I wrote a column titled "Freeing The Speech Of Candidates For Elected Judicial Office." The U.S. Supreme Court's ruling, which issued several weeks after my column ran, can be accessed here.
Posted at 17:14 by Howard Bashman



Available online from The San Francisco Chronicle: Bob Egelko has a news update headlined "Ban on abortion procedure ruled unconstitutional." Another news update is headlined "Peterson told girlfriend he didn't want children, prosecutors say." Today's newspaper contained two additional articles about the Scott Peterson trial: "A 'perfect' couple: Petersons' seemingly charmed life became a national spectacle" and "The problem: The evidence on hand is only circumstantial."
Posted at 17:05 by Howard Bashman



"Courting Trouble: A story of love, marriage, and litigation strategy." Law Professor Richard Thompson Ford has this essay online at Slate.
Posted at 16:56 by Howard Bashman



"What in the world is a 'Billiken'?" Seventh Circuit Judge Terence T. Evans posed that question in footnote two of his highly recommended opinion issued today. Reader Marty Lederman emails to say that an answer of sorts can be found at this link. And to think, just two weeks ago people were asking "Who is Marty Lederman?"

Elsewhere in the email bag, a reader who practices law in Houston, Texas writes:
With such a rollcall of mascots I must recommend my alma mater, the Evergreen State College, of Olympia, Washington, our mascot is the Geoduck ("gooeyduck"), which is actually a giant clam, and represented in our fight song with such words as "suck it in, spit it out."

The information seeker can find a powerpoint show at this link.
Judge Evans no doubt has the geoduck in reserve in the event that an opinion sur denial of rehearing en banc is necessary.
Posted at 16:25 by Howard Bashman



The Metropolitan News-Enterprise is reporting: Available online today are articles headlined "ABA President-Elect Will Tell BHBA He Opposes Division Of Ninth Circuit" and "Ninth Circuit Will Not Reconsider Ruling Reviving Suit Against Gun Makers."
Posted at 15:47 by Howard Bashman



"U.S.: Suspect Sought to Blow Up Buildings." The Associated Press reports here that " Jose Padilla, a former Chicago gang member held as a terrorism suspect for two years, sought to blow up hotels and apartment buildings in the United States in addition to planning an attack with a 'dirty bomb' radiological device, the government said Tuesday." And James Vicini of Reuters reports that "U.S. Outlines Padilla 'Dirty Bomb' Case."
Posted at 14:41 by Howard Bashman



"Federal judge says partial-birth abortion ban unconstitutional": David Kravets of The Associated Press reports here that "A federal judge Tuesday declared the Partial-Birth Abortion Ban Act unconstitutional, saying the measure infringes on a woman's right to choose. The ruling applies to the nation's 900 or so Planned Parenthood clinics and their doctors, who perform roughly half of all abortions in the United States." You can access today's ruling by District Judge