How Appealing

Tuesday, August 31, 2004
"Commonwealth Court bars Nader from Pennsylvania ballot": This article appears today in The Pittsburgh Post-Gazette. And The Philadelphia Inquirer reports that "Pa. court keeps Nader off ballot; A three-judge panel said he broke the law by filing as an independent here and with the Reform Party in Michigan." You can access yesterday's ruling of the Commonwealth Court of Pennsylvania at this link.
Posted at 23:08 by Howard Bashman



"Terri Schiavo Law Tested in State's High Court": This evening's broadcast of NPR's "All Things Considered" included this segment (Real Player required).
Posted at 21:46 by Howard Bashman



Auction price for Chief Justice Rehnquist bobblehead doll is now $232.50: You can access the eBay listing here. The auction will conclude tomorrow morning. More details are available in this earlier post.
Posted at 21:31 by Howard Bashman



Attention NFL.com readers: My interview with Seventh Circuit Judge Frank H. Easterbrook can be accessed at this link.
Posted at 21:28 by Howard Bashman



"Kansas Supreme Court Hears Appeal of Gay Teen Sentenced to 17 Years in Prison": The American Civil Liberties Union issued this press release today. Earlier, in a press release entitled "ACLU Asks Kansas Supreme Court to Drop 17-Year Prison Sentence of Gay Teenager," the ACLU wrote that "In a brief filed today, the American Civil Liberties Union asked the Kansas Supreme Court to reverse a 17-year conviction for a teenager who would have only had to serve 15 months if he were heterosexual."
Posted at 21:25 by Howard Bashman



"Justices hear Schiavo case; The Florida Supreme Court heard arguments on whether Terri's Law, which allowed Gov. Jeb Bush to keep Terri Schiavo alive, is constitutional; Several justices expressed doubts": Wednesday's edition of The Miami Herald will contain this article.
Posted at 21:14 by Howard Bashman



"Historians Discover Children's Menu On Back Of U.S. Constitution": This article appears in tomorrow's issue of The Onion.
Posted at 21:07 by Howard Bashman



What the Eleventh Circuit did while I was on vacation: Last week, the U.S. Court of Appeals for the Eleventh Circuit issued at least three rulings of note.

Circuit Judge Ed Carnes, who's both a very nice guy and quite a good writer, issued a thirty-page decision discussing when that court will agree to allow an interlocutory appeal by permission under 28 U.S.C. sec. 1292(b). The opinion also makes mention of a plaintiff named Stiffler, although apparently the opinion contains no mention of Stiffler's Mom.

Circuit Judge Stanley F. Birch, Jr., who within the past several months has been the author of two decisions involving somewhat controversial subjects, issued an opinion that begins, "The outcome of this appeal hinges on complicated issues of federal subject matter jurisdiction, one of which is an issue of first impression in this circuit: whether a state-law claim alleging conversion of an idea is completely preempted by § 301 of the Copyright Act." The idea in question, by the way, was "to create an Internet-based bank that would cater to the gay and lesbian community." The bank, however, presumably was agnostic concerning whether its customers used sex toys.

Finally, Circuit Judge William H. Pryor, Jr. issued an opinion that rules in favor of an illegal alien. Take that, purveyors of the filibuster!
Posted at 17:52 by Howard Bashman



"Court won't allow search warrants for less than four ounces of marijuana; Attorney General Renkes says he fears ruling will put an end to effective probes of pot-growing cases": The AP provides this report on a ruling that the Court of Appeals of Alaska issued last Friday.
Posted at 17:30 by Howard Bashman



"Deputy AG: Promoting traditional roles justifies sentence." In news from Kansas, The Associated Press reports here that "Promoting traditional sexual roles to teenagers is enough to justify a longer prison sentence for illegal sex with a minor when it involves homosexual acts, a state official told the Kansas Supreme Court on Tuesday." The article goes on to explain that "[Deputy Attorney General Jared] Maag was defending the sentence of more than 17 years in prison for Matthew R. Limon, convicted of criminal sodomy for having sex at the age of 18 with a 14-year-old boy in 2000. Had Limon's conduct involved a girl, he could have been sentenced to one year and three months in prison."
Posted at 17:19 by Howard Bashman



"Fight Over Woman's Life Heard in Florida Supreme Court": Reuters provides this report.
Posted at 17:18 by Howard Bashman



In news from Kenya: The Daily Nation of Nairobi reports in Wednesday's issue that "Study Questions Lawyers' Integrity."
Posted at 17:14 by Howard Bashman



Hail to the Bobble Chief! A reader who does a mighty fine job monitoring eBay for the auction of Green Bag-issued bobblehead dolls advises that the Chief Justice William H. Rehnquist bobblehead doll is the subject of an auction that will end tomorrow morning. Right now the current bid is a mere $110. Last July, a Bobble Chief sold on eBay for $320. No share of the proceeds benefits me, and no bobblehead dolls were harmed in the filming of this blog post.
Posted at 17:03 by Howard Bashman



The Green Bag corrects its annotation for the Justice Sandra Day O'Connor bobblehead doll: The amended annotation, corrected to fix an error that a "How Appealing" reader pointed out here yesterday, can be viewed at this link. Thus, to answer the question posed in the title of yesterday's post pointing out the error, Justice Souter isn't chopped liver after all. By email, The Green Bag's editor in chief has graciously thanked "How Appealing" and the particular reader who noted the error for bringing the mistake to that publication's attention. No bobblehead dolls have been awarded, however.
Posted at 16:41 by Howard Bashman



"Court Hears Case of Brain Damaged Woman": The Associated Press provides this report from Tallahassee, Florida.
Posted at 12:41 by Howard Bashman



Know your Easterbrook brother: Toward the end of today's installment of his "Tuesday Morning Quarterback" column online at NFL.com, Gregg Easterbrook writes:
Indian team name sidelight: see this recent decision by the federal 7th Circuit Court of Appeals concerning the University of Illinois' use of Chief Illiniwek as a sports figure. Legally the case turns on the "Pickering/Connick test," and of course you know what that is, right? The court decision cites cool college sports nicknames such as the University of Evansville Purple Aces. It contain important statistics, including that the most common college sports nickname is Eagles (56 schools), followed by Bulldogs (40) and Wildcats (33). Golden is the most common nickname adjective, with 15 colleges being Golden Eagles, others Golden Seals or Golden Suns. What team would want to be the Yellow Suns, anyway? But the really interesting part of the decision is that its author, federal appellate judge Terry Evans, is a serious Packers fan who attends games and once tried on a cheesehead in the gift shop of the Green Bay Hall of Fame at Lambeau Field. Judge Evans, you have your priorities in order! (Here is the "authentic" cheesehead as sold by the Packers for $17.95. Accept no inauthentic cheeseheads!)

TMQ knows about Judge Evans' love for the Packers because an Official Brother of TMQ, Frank Easterbrook, is also a judge on the 7th Circuit Court of Appeals. See the How Appealing federal-courts blog for an interview in which Frank declares that, in order to maintain judicial impartiality, he roots equally for the Chicago Bears, Green Bay Packers and Indianapolis Colts, the three NFL teams under his jurisdiction. (The 7th Circuit has federal appellate jurisdiction over Illinois, Indiana and Wisconsin.) The How Appealing blog also provides a link to a Legal Affairs magazine article that inadvertently identified yours truly as a federal judge. Surely this means Sports Illustrated will inadvertently identify Frank as a football columnist!
For the record, it was a blurb on law.com that inaccurately identified Gregg Easterbrook as a judge serving on the U.S. Court of Appeals for the Sixth Circuit, when in fact the Michigan-related standstill has all but doomed his nomination to that court. And Gregg's direct link to my interview with his brother is broken, because it contains a dreaded blank space where no blank space should be. (I removed the blank space in adding the link into the quote reproduced above.) Those seeking to access my August 2004 "20 questions for the appellate judge" interview with Seventh Circuit Judge Frank H. Easterbrook can do so by clicking here.
Posted at 12:27 by Howard Bashman



According to Steve Martin, the excuse remains valid for non-payment of taxes: In today's edition of The San Francisco Chronicle, Bob Egelko reports that "Forgetting is ruled no excuse; Sex offenders who blank out face '3-strikes.'" And The Metropolitan News-Enterprise reports that "State Supreme Court Rules: Forgetfulness No Defense to Sex Offender Registration Charge." You can access yesterday's ruling of the Supreme Court of California, in which Justice Janice Rogers Brown wrote the majority opinion, at this link. For an appellate court's reference to the Steve Martin routine in question, see footnote one of Ninth Circuit Judge Sidney R. Thomas's opinion for the court in Shackleford v. United States.
Posted at 11:56 by Howard Bashman



"Judicial Appointments Likely to be Convention Issue": CBN News provides this report.
Posted at 11:40 by Howard Bashman



"Fla. High Court Weighs Terri Schiavo Case": Today's broadcast of NPR's "Morning Edition" included this report (Real Player required).
Posted at 09:40 by Howard Bashman



"Sex Accuser of McGreevey Won't File Suit": This article appears today in The New York Times.
Posted at 07:25 by Howard Bashman



In news from Montana: The Great Falls Tribune reports today that "Affable Warner runs unopposed for high court."
Posted at 07:19 by Howard Bashman



"Judge Pickering in Meridian": WTOK-TV reports here that "During [Judge Pickering's] speech one of the obvious topics was the controversy leading up to Judge Pickering's ultimate appointment to the 5th Circuit Court of Appeals in New Orleans."
Posted at 07:17 by Howard Bashman



Supreme Court of Connecticut decides case implicating scope of that State's "rape shield" law: The Hartford Courant reports today that "New Trial Ordered In Sex Assault Case." You can access yesterday's ruling by Connecticut's highest court at this link.
Posted at 07:15 by Howard Bashman



Legality of "Terri's Law" to be argued today in the Supreme Court of Florida: The Tallahassee Democrat today contains an article headlined "A place between life and death; Debaters and court tackle 'Terri's Law.'" The Miami Herald reports that "Court opens Schiavo case today; The Florida Supreme Court hears arguments today on whether Terri's Law, which allowed Gov. Jeb Bush to order that a severely brain-damaged woman be kept alive, is unconstitutional." And The Palm Beach Post reports that "Battle over feeding tube heads to state's top court." C-SPAN2 is scheduled to broadcast the oral argument live at 9 a.m. eastern time today.
Posted at 07:05 by Howard Bashman



"Commandments supporter dies": The Montgomery Advertiser reports here today that "A wheelchair-bound woman who gained national attention when she was arrested while protesting the removal of Roy Moore's Ten Commandments monument died Saturday."
Posted at 07:04 by Howard Bashman



In news from Canada: The Toronto Star reports today that "Cotler ponders judicial reforms; Seeks new process for choosing top judges; Ad hoc process like a pilot project, minister says."
Posted at 07:03 by Howard Bashman



"Appeals court postpones Hamdi case; Norfolk ruling could end wrangling over U.S. citizen captured in Afghanistan": This article appears today in The Richmond Times-Dispatch. And The Washington Post reports that "Talks Continue in Hamdi Case; Ruling Means Combatant May Soon Be Released."
Posted at 07:00 by Howard Bashman



"U. links gun ban, academic freedom; Before high court: The state says there is no such autonomy on campus." The Salt Lake Tribune contains this article today, while The Deseret Morning News reports that "U. fears fallout on gun ban; School making argument before Utah's high court."
Posted at 06:59 by Howard Bashman



"2nd Trial Of Sniper Is Ruled Lawful; Judge in Fairfax Rejects Claim Of Double Jeopardy": This article appears today in The Washington Post. The Richmond Times-Dispatch reports today that "Judge won't block Muhammad trial; Defense claims tossed; sniper trial in Fairfax killing appears likely." And The Baltimore Sun reports today that "Sniper's lawyers lose bid to prevent 2nd capital trial; Double jeopardy does not apply, Virginia judge rules."
Posted at 06:56 by Howard Bashman



In news from Louisiana: The Times-Picayune reports today that "Appeals court reinstates marriage amendment vote; Gay rights group's suit called premature." And The Advocate of Baton Rouge reports that "Appeals court OKs gay-marriage vote."
Posted at 06:55 by Howard Bashman



Monday, August 30, 2004
"FBI Shift Crimps White-Collar Crime Probes; With more agents moved to anti-terrorism duty, corporate fraud cases are routinely put on hold, prosecutors say": The Los Angeles Times contains this article today.
Posted at 23:52 by Howard Bashman



"Copyright breach": This editorial appears today in The Boston Globe.
Posted at 23:50 by Howard Bashman



"Tribunal struggles with first hearings; Several missteps raise concerns about future terror suspects' cases": This article appears today in USA Today.
Posted at 23:44 by Howard Bashman



"Fla. Supremes to Hear Schiavo Right-to-Die Case; Decision to pose high stakes for state law, government": law.com provides this report.
Posted at 23:38 by Howard Bashman



I'm too sexy for my billboard: The AP reports that "Adult businesses challenge Missouri ban on sexy billboards." In local coverage, The Kansas City Star on Saturday reported that "Billboard law challenged." And The Columbia Daily Tribune reports today that "Sign law promoter confident; State set to defend sexy-billboard ban." (This post's title inspired by the hit song from Right Said Fred.)
Posted at 23:27 by Howard Bashman



In news from Kansas: The Supreme Court of Kansas today heard oral argument in a case in which a trial court declared unlawful that State's method of funding public schools. In early news coverage, The Topeka Capital-Journal reports that "Supreme Court takes up school finance appeal." The Associated Press reports that "Supreme Court considers constitutionality of school finance system." The Wichita Eagle has an update headlined "School funding: State argues against policy set from the bench." The Kansas City Star reports that "Adequacy of school funding debated." And The Lawrence Journal-World reports that "Kansas Supreme Court hears school finance arguments."

Tomorrow, Kansas' highest court will hear oral argument in another controversial case -- State v. Limon. As The Wichita Eagle reports here (third item), that case raises the question whether, in the aftermath of the U.S. Supreme Court's ruling in Lawrence v. Texas, a State may punish the offense of homosexual activity with a minor more harshly than the State punishes the offense of heterosexual activity with a minor.
Posted at 23:14 by Howard Bashman



"Alcohol comes to college - publications": The Pitt News today contains this report on its recent victory before the U.S. Court of Appeals for the Third Circuit. My earlier report on that ruling can be accessed here.
Posted at 23:08 by Howard Bashman



"High Court Petitioned on Cable Net Access Rule; FCC Argues Decision May Stifle Innovation": This article will appear in Tuesday's issue of The Washington Post.
Posted at 22:43 by Howard Bashman



What Yale Law Professor Jack M. Balkin did during his summer vacation: He provides the answer in this post and in posts titled "From the Blackmun Papers: The Day Roe v. Wade was Overruled" and "The Day Roe Was Overruled -- The Prequel."
Posted at 19:51 by Howard Bashman



"Should the state make life-or-death medical decisions? The case of Terri Schiavo, which the Florida high court hears Tuesday, will help establish procedures in future cases." Warren Richey will have this article in tomorrow's issue of The Christian Science Monitor.
Posted at 17:43 by Howard Bashman



"Prime Minister announces appointments to the Supreme Court of Canada": The Government of Canada issued this press release today. The Toronto Globe and Mail provides a news update headlined "PM appoints Supreme Court judges." And Canadian Press reports that "New Supreme Court judges formally appointed."

Unlike in the United States, where the nomination and confirmation of a Justice to the Supreme Court of the United States is often a difficult and lengthy process, while I was away on vacation last week the Prime Minister of Canada identified and placed onto the Supreme Court of Canada two brand new justices. All in less than a week's time. I hope to provide links to more news coverage of this matter later tonight.
Posted at 17:31 by Howard Bashman



"'Enemy combatant' case delayed for a month; Appellate court overturns order for Hamdi appearance": CNN.com provides this report.
Posted at 17:28 by Howard Bashman



"Federal Government Appeals Cable Broadband Ruling to Supreme Court": Reuters provides this report.
Posted at 16:33 by Howard Bashman



"Justices: Fetus is not a 'person'; Texas high court rules 8-1 the parents of a stillborn baby can't sue hospital." The Houston Chronicle today contains this article reporting on a decision (majority opinion; concurring opinion; dissenting opinion) that the Supreme Court of Texas issued last Friday. In other coverage, The Fort Worth Star-Telegram reported Saturday that "Court rules parents not able to sue."
Posted at 16:20 by Howard Bashman



Immigration law is complex, but not that complex: While guest-blogging last week at "Lessig Blog," Seventh Circuit Judge Richard A. Posner was still busy with his day job, as this opinion and this rather interesting amendment thereto reveal.
Posted at 16:04 by Howard Bashman



"On Appeal, Anti-Nazi Groups Topple Yahoo; Dissent would have granted jurisdiction": Jeff Chorney of law.com provides this report on a ruling that a divided three-judge Ninth Circuit panel issued last week.
Posted at 15:15 by Howard Bashman



"You cannot judge the wisdom of the criminal laws enacted by Congress, that is, whether or not there should or should not be a federal law designating certain activity as criminal." Last Wednesday, the U.S. Court of Appeals for the Ninth Circuit granted rehearing en banc to determine whether that passage from the model grand jury charge recommended by the Administrative Office of the United States Courts impermissibly circumscribes the subject matter of the grand jurors' inquiries and deliberations and runs counter to the history of the grand jury institution.

The order granting rehearing can be accessed here. As I first reported here, on May 4, 2004 a divided three-judge Ninth Circuit panel upheld the challenged instruction over a dissent by Circuit Judge Alex Kozinski. The dissenting opinion of Ninth Circuit Judge Michael Daly Hawkins in United States v. Marcucci is also relevant to the question on which rehearing en banc has been granted.

Based on these developments, grand jury nullification may someday be alive and well in the Ninth Circuit.
Posted at 14:41 by Howard Bashman



What is Justice Souter, chopped liver? A reader emails:
Regarding your recent report of the failed effort to sell the O'Connor bobblehead doll on eBay: perhaps one factor contributing to consumers' lack of interest in the doll is a dislike for false advertising. The Green Bag Web page that describes the bobblehead states that O'Connor is "the only Justice with ... state-court experience." This, of course, is inaccurate. As the Supreme Court's Web site indicates here, Justice Souter served on New Hampshire courts for twelve years, including seven years as a member of the state supreme court.
I guess this qualifies as the annotated annotated bobblehead for Justice O'Connor.

The full quote to which this reader objects is as follows:
[Justice O'Connor] has occupied a unique position on the Court in a number of ways, as the only Justice with legislative experience, with state-court experience, and, for many years, with experience as a woman.
By adding a temporal qualification on Justice O'Connor's tenure as the Court's lone female Justice, the description inaccurately suggests that Justice O'Connor's tenure as the only Justice who served as a state court judge is not similarly limited in time. As my reader observes, that suggestion is incorrect. Nor can the passage appropriately be read to say that Justice O'Connor is the only Justice who has these three attributes in combination.
Posted at 14:15 by Howard Bashman



"Schools can't offer prayers at mandatory staff meetings": The AP offers this report on a ruling that a unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit issued last week.
Posted at 14:01 by Howard Bashman



The Associated Press is reporting: Now available online are items headlined "Judge Rejects Bryant Case Media Request" and "Questions Posed to Potential Bryant Jurors."
Posted at 13:55 by Howard Bashman



"Nepotism in the Federal Judiciary": Apropos my August 2004 appellate column, titled "When Federal Appellate Judges Marry One Another," a reader has drawn to my attention this article by Law Professor Michael E. Solimine of the University of Cincinnati College of Law published at 71 U. Cin. L. Rev. 563 (2002).
Posted at 12:01 by Howard Bashman



"Florida High Court to Hear Right-To-Die Case": Reuters provides this report.
Posted at 12:00 by Howard Bashman



En banc Sixth Circuit last week issued opinions in connection with its decision that Blakely v. Washington doesn't invalidate the U.S. Sentencing Guidelines: As previously reported here and elsewhere, on August 13, 2004, the U.S. Court of Appeals for the Sixth Circuit sitting en banc issued an order decreeing that the U.S. Supreme Court's decision in Blakely did not invalidate the federal sentencing guidelines.

Last Thursday, the Sixth Circuit issued a majority and dissenting opinion providing the rationale in favor of, and opposed to, its en banc ruling. The court's complete ruling can be accessed here. Circuit Judge Jeffrey S. Sutton wrote the majority opinion, and Circuit Judge Boyce F. Martin, Jr. wrote the dissent. The court's vote was 8-5,* with one senior circuit judge participating (because he sat on the original three-judge panel, whose decision can be accessed here).

Law Professor Douglas A. Berman, who I think believes that the opposite result is more defensible, provides analysis of the ruling at his "Sentencing Law and Policy" blog in posts that you can access here, here, and here.

----------------
* This post as originally written misstated that the en banc court's vote was 9-5. The Sixth Circuit's opinion contains the following listing of how the judges voted:
SUTTON, J., delivered the opinion of the court, in which BOGGS, C. J., GUY, BATCHELDER, GILMAN, GIBBONS, ROGERS, SUTTON, and COOK, JJ., joined. MARTIN, J. (pp. 14-24), delivered a separate dissenting opinion, in which DAUGHTREY, MOORE, COLE, and CLAY, JJ., joined.
It seems (to borrow a word from Judge Selya) supererogatory for Judge Sutton to be noted as joining in his own opinion, especially when Judge Martin is not shown as joining in his own opinion. But that's why I originally miscounted the vote of the en banc court.
Posted at 11:20 by Howard Bashman



The U.S. Court of Appeals for the Eleventh Circuit should hold that William H. Pryor, Jr.'s recess appointment is invalid, Senator Edward M. Kennedy (D-MA) argues in reply brief filed in that court last week: You can view the reply brief online by clicking here.
Posted at 10:55 by Howard Bashman



"Your vacation almost certainly cost some poor schmuck at least $200": A reader emails:
You realize, don't you, that your vacation almost certainly cost some poor schmuck at least $200? The O'Connor bobblehead didn't sell. I expect it would have, had it been posted on your blog earlier in the week and therefore received any attention...
Alas, as this reader's email notes, the Justice Sandra Day O'Connor bobblehead doll being auctioned on eBay failed to get sold yesterday because the reserve price of $200 wasn't met. By contrast, back in late July 2003, a Chief Justice William H. Rehnquist bobblehead doll was auctioned on eBay for $320, as originally reported here.

Given that there have been tremendous advances in bobblehead technology over the past year, that the Justice O'Connor doll includes hot double bobblehead action, and that the doll depicts Justice O'Connor as she looked many years ago, before she was bonked on the head by a toppled wooden beam at the grand opening of Philadelphia's National Constitution Center in July 2003, I am astonished that the doll failed to sell for more than the Chief's doll, let alone for $200.

And while I'm on the subject of bobblehead dolls, in an amazing coincidence, the Orioles-Blue Jays game two Sunday's ago at Baltimore's Oriole Park at Camden Yards -- the baseball game that kicked-off my week-long vacation -- included as a promotional give-away an Earl Weaver-Jim Palmer double bobblehead doll. Baltimore Sun columnist Peter Schmuck (perhaps a distant relation to the person mentioned in my reader's email) had an essay two Sunday's ago entitled "Bobblehead lets Weaver stand tall with Palmer."
Posted at 09:51 by Howard Bashman



"Rural Colorado Braces for Bryant Trial Media Glare": Today's broadcast of NPR's "Morning Edition" included this segment (Real Player required).
Posted at 09:35 by Howard Bashman



The Washington Post is reporting: Today's newspaper contains articles headlined:
Posted at 07:32 by Howard Bashman



In today's edition of The New York Times: The following news articles appear: The newspaper also contains an editorial entitled "Grokster and the Information Exchange."
Posted at 07:15 by Howard Bashman



"Battle of the Bible gets ugly": This article appears today in The San Antonio Express-News. And The Idaho Statesman reported on Saturday that "Monument vote goes to judge; Boise council asks for second opinion on case."
Posted at 07:11 by Howard Bashman



"Dissed fish: The strange attraction of snoek." The September 6, 2004 issue of The New Yorker magazine contains this letter from South Africa from Calvin Trillin, whose writings about food are not to be missed.
Posted at 07:00 by Howard Bashman



"U.S. courts await clarity on sentencing guidelines; Justices to revisit June ruling that caused confusion": This article appeared yesterday in The Chicago Tribune. In related news from Montana, The Great Falls Tribune reports today that "Federal courts, officials reeling." And The Associated Press reports from Missouri that "New sentence sought in diluted drugs case; Pharmacist asks U.S. Supreme Court to throw out 30-year prison term."
Posted at 06:50 by Howard Bashman



Sunday, August 29, 2004
"3rd Circuit Sees Through 'Ghostwritten' Opinion": law.com's Shannon P. Duffy has this report on a rather interesting ruling that the U.S. Court of Appeals for the Third Circuit issued last week. District Judge Arthur J. Schwab -- my former law partner and once a Third Circuit hopeful himself -- of the U.S. District Court for the Western District of Pennsylvania issued the trial court's ruling in the case.
Posted at 23:35 by Howard Bashman



"Lawrence v. Texas and the military": Lyle Denniston has this post online at "SCOTUSblog" about a long-awaited ruling that the U.S. Court of Appeals for the Armed Forces issued last week in United States v. Marcum, a case in which the defendant sought to raise a constitutional challenge to the Uniform Code of Military Justice's prohibition of consensual sodomy.

Under the court of appeals' view of the facts, however, the sodomy at issue was not consensual so as to implicate the Supreme Court's ruling in Lawrence. The New York Times reported on the decision in an article headlined "In Limited Ruling, Court Upholds Military Ban on Sodomy," while The Washington Times reported that "Military's sodomy ruling backs airman's conviction."

You can access online comments on the ruling from Phillip Carter, Chris Geidner, and Law Professor Eugene Volokh.
Posted at 22:25 by Howard Bashman



"The FBI has placed an advertisement in a gun magazine in hopes of reinvigorating a three-year-old investigation into the murder of Tom Wales, a federal prosecutor in Seattle." Last Thursday's broadcast of NPR's "Morning Edition" included a segment entitled "FBI Hopes Gun Magazine Ad Will Finger Killer." The FBI's request for information can be accessed at this link.
Posted at 22:19 by Howard Bashman



"Govt Report on Judges' Financial Disclosures Pulled Offline": So reported the web site The Memory Hole in this posting from last week. Via third parties, the report remains available here in its original PDF format and here transformed into HTML.

Earlier this month I had this lengthy post on the financial disclosure issue, after The Washington Post brought the issue back to public attention by means of an article headlined "U.S. Judges Getting Disclosure Data Deleted; GAO Cites 661 Requests to Withhold Information From Ethics Act Reports."

Also worth a look is another, even more recent Memory Hole posting entitled "Justice Department Censors Supreme Court Quote; Offers Smoking Gun Proof That Document Redactions Are Often a Joke."
Posted at 17:50 by Howard Bashman



"U.S. Court in New York Rejects Partial-Birth Abortion Ban": The New York Times on Friday contained this article reporting on a ruling that the U.S. District Court for the Southern District of New York issued last Thursday. NPR's "All Things Considered" reported that "Federal Judge Deems an Abortion Ban Unconstitutional." (Real Player required). And law.com reported that "Federal Judge Finds Partial-Birth Abortion Act Unconstitutional."
Posted at 17:03 by Howard Bashman



"Court Backs Rights of Grandparents; With proof that no harm would result, visits with grandchild may be allowed over a custodial parent's objection, the state's top jurists rule": Maura Dolan had this article last Tuesday in The Los Angeles Times reporting on a ruling that the Supreme Court of California issued last Monday.

In other coverage, Bob Egelko of The San Francisco Chronicle reported that "Custody ruling backs grandparents' rights." The Metropolitan News-Enterprise reported that "Divided State Supreme Court Rules Statutes on Grandparent Visitation Pass Constitutional Muster." The San Diego Union-Tribune reported that "Grandparents want end to visitation case." And The North County Times reported that "Ruling gives Fallbrook grandparents hope."
Posted at 16:53 by Howard Bashman



"Supreme Court won't revisit ruling on Pledge of Allegiance; 'Under God' stays -- Newdow says he will try again": Bob Egelko had this article in last Tuesday's issue of The San Francisco Chronicle. And The Washington Times reported that "Justices refuse to reopen Pledge case." In related news, earlier this month The Sacramento Bee published an article headlined "Latest ripple in Pledge of Allegiance case: A documentary."
Posted at 16:35 by Howard Bashman



"Feds Defend Gay Marriage Ban in Florida": The Associated Press reports here that "The U.S. government has asked a judge to dismiss a lawsuit challenging the 8-year-old federal law that bans gay marriage. Justice Department spokesman Charles Miller said it was the government's first direct legal defense of the Defense of Marriage Act, which defines marriage as the union of one man and one woman and allows states to refuse to recognize gay marriages from other states."
Posted at 11:26 by Howard Bashman



"Lesbian off hook for child support: SJC rules she doesn't have to pay ex-partner." This article appeared last Thursday in The Boston Herald, which that day also contained an editorial entitled "Another SJC wrinkle on same-sex policy." In other coverage, The Boston Globe reported that "SJC rules against lesbian mother; Ex-partner balked at child support." And The Republican of Springfield, Massachusetts reported that "Gay child support rejected." You can access last Wednesday's ruling of the Supreme Judicial Court of Massachusetts at this link.
Posted at 11:20 by Howard Bashman



"Court delays order to remove Bible from monument; Last-minute stay is in effect while a county appeal is weighed": This article appeared last Wednesday in The Houston Chronicle. And on Thursday, the newspaper reported that "Mission rejected as party to suit; Star of Hope will appeal the ruling in Bible case."
Posted at 11:11 by Howard Bashman



"Coming Soon to NY and DC: Revival of GOP's 'Obstructionism' Melodrama." Ralph G. Neas, president of People For the American Way, issued this "edit memo" this past Thursday.
Posted at 09:42 by Howard Bashman



The Oregonian is reporting: Friday's issue of that newspaper contained articles headlined "Famed lawyer will represent Muslim accused in bombing; Gerry Spence joins the team of Brandon Mayfield, who may sue the United States after being falsely accused in Madrid case" and "Prosecutor who attacked Kerry admits lying to boss; Clackamas County puts Alfred French on leave after he says he misled his supervisor about an extramarital affair." And on Thursday, the newspaper reported that "Critics of prosecutor in ad go to state bar; Two agencies will check whether Alfred French's affidavit against Sen. John Kerry violates legal ethics."
Posted at 09:30 by Howard Bashman



"Off the Bench": Guest columnist Dahlia Lithwick has this op-ed today in The New York Times. And her op-ed from this past Thursday, entitled "No Smoking Gun," concluded with her first NYTimes correction.
Posted at 07:52 by Howard Bashman



Seventh Circuit Judge Richard A. Posner reviews the 9/11 Commission's Final Report: Judge Posner's review, which you can access here, has earned the cover of the Sunday Book Review in today's issue of The New York Times.

In case you missed it, this past week Judge Posner was guest-blogging at "Lessig Blog." Judge Posner's first guest post can be accessed here, and as of this moment Judge Posner is up to his twenty-fifth post, which can be accessed here. So far, no cat blogging.
Posted at 07:37 by Howard Bashman



Will a Justice Sandra Day O'Connor bobblehead doll sell for at least $200 on eBay? We will learn the answer to that question later today, when the auction is due to end. You can learn more about the doll at this link. As I reported here on July 30, 2003, a Chief Justice William H. Rehnquist bobblehead doll ended up fetching $320 on eBay on that date. And the Chief's doll didn't even feature hot double-bobblehead action. (Of course, Justice O'Connor's robe lacks gold bars, but you could always paint them on yourself if need be.)
Posted at 07:26 by Howard Bashman



A wonderful vacation was had by all: A total break from blogging, and from work, is highly recommended at least once a year. Or, put another way, if you can't quit blogging for a week, then how will you ever quit blogging permanently?
Posted at 07:15 by Howard Bashman



Sunday, August 22, 2004
On vacation: As was the case in 2002 and 2003, this year the last week in August will once again feature a break from blogging. As in previous years, much of the week will be spent in beautiful Margate, New Jersey. Unlike in past years, however, today we will begin the week away by taking in a baseball game at Oriole Park at Camden Yards, where this afternoon the Baltimore Orioles host the Toronto Blue Jays. "How Appealing" will next be updated on Sunday, August 29, 2004. Until then, readers are invited to let me know via email of news and developments that might be worthy of mention upon my return.
Posted at 08:00 by Howard Bashman



Saturday, August 21, 2004
"Double jeopardy claimed in sniper case; Lawyers eye dismissal of charges in second trial for Muhammad": The Richmond Times-Dispatch contains this article today.
Posted at 23:55 by Howard Bashman



"High court race has high interest": This article will appear in Sunday's issue of The St. Louis Post-Dispatch.
Posted at 23:54 by Howard Bashman



The Pittsburgh Post-Gazette is reporting: Today's newspaper contains articles headlined "Schools cannot require Pledge, court says" and "Post-Gazette joins suit to open Heinz will."
Posted at 23:48 by Howard Bashman



"Supreme Court nominees to face public hearings; Two vacancies on court must be filled within six weeks": The Canadian Press provides this report.
Posted at 23:38 by Howard Bashman



On the op-ed page of Sunday's issue of The New York Times: Guest columnist Dahlia Lithwick will have an op-ed entitled "Chipping Away at the Wall." And New Jersey Governor James E. McGreevey will have an op-ed entitled "I Still Have Work to Do."
Posted at 21:44 by Howard Bashman



"Corruption case unlikely to see 2004 trial date; Conflicts over scheduling, evidence may push court date past Jan. 1 for Supreme Court justice, four others": This article appears today in The Clarion-Ledger of Jackson, Mississippi. And The Biloxi Sun Herald reports today that "Judge probe date mired in argument."
Posted at 20:32 by Howard Bashman



"Senate-seat initiative back on ballot": The Anchorage Daily News today contains an article that begins, "An initiative requiring that vacancies in Alaska's two U.S. Senate seats be filled only by election is back on the November ballot, the Alaska Supreme Court ordered Friday."
Posted at 20:25 by Howard Bashman



"Same-sex vote foes win round; Judge rules measure unconstitutional": This article appears today in The Times-Picayune.
Posted at 20:20 by Howard Bashman



"Boehner Favored in Taped Phone Call Case": The AP provides an article that begins, "A federal judge has sided with Rep. John Boehner, R-Ohio, in his six-year-old lawsuit against Rep. James McDermott, D-Wash., over an illegally recorded phone call." The article reports on a memorandum opinion and order that the U.S. District Court for the District of Columbia issued yesterday.
Posted at 20:15 by Howard Bashman



In other news from Oklahoma: The Associated Press offers a report headlined "Cherokee Panel: Marriage Means Man, Woman."
Posted at 20:09 by Howard Bashman



"Judge Accused of Masturbating Resigns": Reuters reported here on Thursday that "An Oklahoma judge facing removal over charges that he masturbated and used a device for enhancing erections under his robes during trials said on Wednesday he would retire from the bench." Back in June 2004, in a post you can access here, I linked to the removal petition filed against the judge by Oklahoma's Attorney General.

In local news coverage, The Oklahoman on Thursday contained an article headlined "Under fire, judge to retire." Yesterday, The Oklahoman reported that "Retired judge to get $88,800 a year for life." And today The Oklahoman reports that "Thompson calls claims 'treachery.'" Additional reports from local television stations can be accessed here and here, while the judge's letter of resignation can be viewed here.
Posted at 19:45 by Howard Bashman



"Rape Counselors See Their Work Altered by Issues in Bryant Case": This article will appear in Sunday's issue of The New York Times.
Posted at 19:29 by Howard Bashman



In today's edition of The New York Times: An article is headlined "Across New York, a Death Penalty Stuck in Limbo." And in other news, "2 Ex-I.R.S. Lawyers' Licenses Suspended for Misconduct."
Posted at 15:23 by Howard Bashman



Available online from law.com: An article reports that "Pa.'s Pledge of Allegiance Law Loses Again; 3rd Circuit decision affirms lower court." In other news, "Dances by Graham Held 'Work for Hire' in Ownership Case." And an article is headlined "Gearing Up for Guantanamo."
Posted at 08:33 by Howard Bashman



Friday, August 20, 2004
"The Marketplace Report: Court Sides with File Swappers." Today's broadcast of NPR's "Day to Day" included this segment (Real Player required). And The AP reports that "Music Piracy Lawsuits Wend Through Courts."
Posted at 17:07 by Howard Bashman



"White House Deals With Detainee Legalities": Anne Gearan of The Associated Press provides this report.
Posted at 17:06 by Howard Bashman



"Marriage act is upheld in gay couple's bankruptcy": The Seattle Times contains this article today.
Posted at 16:33 by Howard Bashman



"New evidence claimed in Bible display lawsuit; In its effort to enter the case, mission offers to post disclaimers on the monument": This article appears today in The Houston Chronicle.
Posted at 16:30 by Howard Bashman



The Washington Post is reporting: Today's newspaper contains articles headlined "U.S. Uses Secret Evidence In Secrecy Fight With ACLU" and "Muhammad Lawyers Cite Double Jeopardy; Defense Asks Judge to Dismiss Fairfax Charges."
Posted at 15:54 by Howard Bashman



"Phoenix out to ban Web porn in libraries": The Arizona Republic today contains an article that begins, "Phoenix wants to ban library patrons' access to Internet pornography, an action that could put the city at the center of a First Amendment debate."
Posted at 15:52 by Howard Bashman



"In one term, a legacy of respect; Even his detractors came around during retiring justice's five-year tenure": The Newark Star-Ledger today contains an article that begins, "When he was sworn in at age 40, Peter Verniero became the youngest associate justice ever to serve on the New Jersey Supreme Court. Five years later, he is about to become the youngest ever to retire from the court. Although he arrived mired in controversy over his handling of allegations of State Police racial profiling when he was attorney general, he leaves having converted the doubters who once said he was unfit for the job."
Posted at 15:43 by Howard Bashman



"Same-sex marriage: Was the federal constitutional issue settled years ago?" Lyle Denniston has this post online at "SCOTUSblog."
Posted at 15:24 by Howard Bashman



Pennsylvania's regulatory scheme for determining when live bears may be privately owned violates an individual's right to the free exercise of religion: So a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit has held in a decision that you can access here. Circuit Judge Samuel A. Alito, Jr. is the opinion's author.
Posted at 14:49 by Howard Bashman



In news from the Livestock Marketing Association: Today that organization issued a press release entitled "Harvard University Professor Laurence Tribe Joins LMA Legal Team; Will Argue Checkoff Case Before U.S. Supreme Court."
Posted at 14:23 by Howard Bashman



"Courtly honor for St. Pete; The senator was honored at the federal courthouse now bearing his name": The Albuquerque Tribune today contains an article that begins, "It only took 32 years, but U.S. Sen. Pete Domenici finally has a building named after him." According to the article, Justice Antonin Scalia was present for the dedication ceremony.
Posted at 14:21 by Howard Bashman



Today's Ten Commandments news and commentary: The News-Leader of Springfield, Missouri reports today that "Humansville school chief out of a job; Commandments dispute ends with Greg Thompson turning in his keys." And today in The Palm Beach Post, Steve Gushee has an op-ed entitled "Commandments heading down a dangerous path."
Posted at 12:42 by Howard Bashman



"Supreme stats: What if Supreme Court justices were picked based on their career numbers instead of their politics?" Legal Affairs magazine has gone and posted online the text that accompanies this illustration in the print edition of the publication.
Posted at 12:38 by Howard Bashman



"U.S. magistrate freezes 27 cases": The Charleston Gazette today contains an article that begins, "A federal magistrate has put on hold 27 civil cases where a convict is trying to get his or her sentence changed in light of a recent U.S. Supreme Court ruling."
Posted at 12:24 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Wash. Woman Thrust Into Gay Marriage Fight"; "Official on Leave Over Ten Commandments"; and "Judge Lowers Ford Rollover Victim's Award."
Posted at 10:08 by Howard Bashman



"Traffic mishap derails top judge; Fails breathalyzer; Chief justice Lemieux to retire from Superior Court": The Montreal Gazette contains this article today. And The Toronto Globe and Mail reports that "Accused of drunk driving, top Quebec judge quits."
Posted at 09:46 by Howard Bashman



"Judge limits scope of new sex-offender registry law; Law applies only to those convicted after it went into effect": This article appears today in The Tennessean.
Posted at 09:44 by Howard Bashman



"Appeals judges block mandate to say pledge; A federal panel called the act, which would have also required schools to contact parents of students who refused, a violation": The Philadelphia Inquirer contains this article today.
Posted at 09:40 by Howard Bashman



"File-Sharing Sites Found Not Liable for Infringement": This article appears today in The New York Times. The Los Angeles Times contains an article headlined "Legal Victory for File Sharing; A U.S. appeals court says software used to swap songs and films online doesn't violate copyright law; It's a setback for the entertainment industry." Bob Egelko of The San Francisco Chronicle reports that "Judge rules Grokster, StreamCast not liable for copyright violations; File-sharing verdict major setback for recording industry." The San Jose Mercury News reports that "Federal appeals court rejects attempt to shut down music file-sharing networks; Grokster and Morpheus not responsible for copyright violations." Newsday reports that "File-sharing firms record a win; A U.S. appeals court says companies aren't liable for copyright infringement; appeal likely from big media." The Tennessean reports that "Peer-to-peer networks win ruling." USA Today reports that "Ruling sets back music industry's piracy battle." The Sydney Morning Herald reports that "Sharman to seek lawful status for Kazaa in US." c|net News.Com reports that "Judges rule file-sharing software legal." Wired News reports that "P2P Services in the Clear." And Slashdot is hosting a discussion entitled "Grokster Wins Big in Ninth Circuit."
Posted at 09:19 by Howard Bashman



Reuters is reporting: Now available online are articles headlined "Oklahoma City Conspirator Nichols Will Not Appeal" and "Shoe bomber sues over harsh U.S. prison conditions."
Posted at 09:07 by Howard Bashman



Thursday, August 19, 2004
"In Victory for Grokster, Peer-to-Peer Wins at 9th Circuit": Jeff Chorney of law.com provides this report.
Posted at 22:12 by Howard Bashman



"Judge postpones cross-examination of Amber Frey; Delucchi delays testimony to allow more time to examine recorded calls": This article appears today in The San Mateo County Times. The Modesto Bee reports that "Peterson trial is delayed." The Contra Costa Times reports that "Frey won't take stand again until Monday." The San Jose Mercury News reports that "Judge puts off case to Monday; Officials quiet on reason for delay." And The San Francisco Chronicle reports that "Judge halts trial until Monday; Checking 'potential development' with the wiretaps."
Posted at 22:02 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Court Throws Out Pa.'s Pledge Requirement" and "More Time Given to Negotiate Hamdi Release."
Posted at 21:50 by Howard Bashman



"Conviction in False Hate Crime Case; Jury finds former Claremont McKenna College professor guilty of attempted insurance fraud and filing a false police report": This article appears today in The Los Angeles Times.
Posted at 21:21 by Howard Bashman



"Supreme Court candidate taken off ballot after failing to show credentials": The Minneapolis Star Tribune yesterday contained an article that begins, "Patricia Jambois, a reclusive candidate for the Minnesota Supreme Court, will be removed from the November election ballot because she has failed to show she is licensed to practice law in Minnesota, Secretary of State Mary Kiffmeyer said Tuesday."
Posted at 21:14 by Howard Bashman



"DNA profiling of parolees upheld": Claire Cooper, legal affairs writer for The Sacramento Bee, today has this article in that newspaper.
Posted at 21:01 by Howard Bashman



Judge O'Scannlain, in New Zealand: Friday's edition of The New Zealand Herald will contain an article headlined "Court activism sets up 'vicious cycle.'" And in related news, don't overlook this morning's post entitled "Judge Pryor, in England."
Posted at 20:51 by Howard Bashman



Should federal appellate courts provide federal trial courts with an added degree of freedom to decide for themselves whether a federal appellate court's prediction of state law remains accurate? "No" is the answer a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit delivered today. You can access the ruling, written by Circuit Judge Frank H. Easterbrook, at this link. I touched on this question in my monthly appellate column from March 2003, titled "Journey Into The Unknown: What's A Federal Court To Do When Forced To Predict How A State's Highest Court Will Decide An Unresolved Question Of State Law."
Posted at 17:16 by Howard Bashman



Reuters reports on today's decisions of note from the U.S. Court of Appeals for the Ninth Circuit: The wire service reports that "US Court Rejects Movie, Music Makers' Piracy Claims." And a report on a decision in a case where an airline's loss of luggage is alleged to have caused a passenger's death is headlined "Court Finds Airline at Fault in Woman's Death."
Posted at 16:57 by Howard Bashman



"Court: Grokster, StreamCast Not Liable." David Kravets of The Associated Press provides this report.
Posted at 15:38 by Howard Bashman



"Federal courts: Funding crisis looms." Law Professor Thomas E. Baker has this essay in this week's issue of The National Law Journal.
Posted at 15:30 by Howard Bashman



U.S. Court of Appeals for the Third Circuit affirms federal trial court's ruling that invalidated law requiring student participation in Pledge of Allegiance or National Anthem in all public, private, and parochial schools within Pennsylvania: You can access today's ruling at this link. Congratulations to the attorney who argued the appeal for the plaintiffs, and to one of the parents of a plaintiff, both of whom are friends and former colleagues.
Posted at 14:02 by Howard Bashman



BREAKING NEWS -- U.S. Court of Appeals for the Ninth Circuit decides Grokster file sharing case: Today's ruling begins:
This appeal presents the question of whether distributors of peer-to-peer file-sharing computer networking software may be held contributorily or vicariously liable for copyright infringements by users. Under the circumstances presented by this case, we conclude that the defendants are not liable for contributory and vicarious copyright infringement and affirm the district court's partial grant of summary judgment.
You can access all of today's ruling at this link.
Posted at 13:33 by Howard Bashman



"Judge's Ruling May Chill Newsgathering": The Associated Press provides this report. Yesterday's ruling can be accessed here.
Posted at 10:19 by Howard Bashman



"State-Suspended Attorney Cannot Keep Local Office for Federal Court Practice": So reports The Legal Intelligencer today in an article that the publication's online subscribers can access here.

Typically, when the Supreme Court of Pennsylvania suspends an attorney from the practice of law, the Pennsylvania-based federal district courts before which the attorney is authorized to practice will issue a reciprocal disciplinary suspension for the same duration. Yet the federal courts sometimes impose a shorter period of discipline and are free to impose no discipline at all. (More details of how the system works are provided in this amicus brief that the U.S. Court of Appeals for the Third Circuit appointed me to file in a case that produced this ruling and this press coverage.)

When the federal suspension is shorter than the state suspension, the following conundrum arises: may a lawyer suspended from the practice of law in Pennsylvania engage in the practice of law before a Pennsylvania-based federal district court in which he remains licensed to practice without violating the state-based suspension?

On Monday of this week, the Supreme Court of Pennsylvania issued a unanimous ruling in which the court held that lawyers who remain authorized to practice law before a federal district court in Pennsylvania while suspended from the practice of law before Pennsylvania state courts are not entitled to have an office in Pennsylvania from which they engage in the practice of law.

I doubt that there are many lawyers who will be affected by this ruling, and certainly they are not an especially sympathetic constituency. Yet unless such lawyers can move their offices outside of Pennsylvania or can prevail on the federal government to establish a protected federal enclave from which they can practice law, the Supreme Court of Pennsylvania's ruling appears to have eviscerated the ability of these attorneys to benefit from their continued admission, or early readmission, to the practice of law before the federal courts.
Posted at 09:36 by Howard Bashman



Half-empty or half-full: If I'm reading this press release correctly, Dahlia Lithwick's stint as a guest columnist at The New York Times is at its midpoint. Today she has an op-ed entitled "Babies and Bath Water." Joining Dahlia today on the op-ed page is everyone's favorite wild-and-crazy guy, Steve Martin.
Posted at 09:23 by Howard Bashman



Adam Liptak is reporting: In today's issue of The New York Times, he has articles headlined "Law Backing 2-Sex Marriage Is Upheld by Federal Judge" and "For Post-9/11 Material Witness, It Is a Terror of a Different Kind."
Posted at 09:19 by Howard Bashman



"Suicidal Folly: Disgust needn't kill federalism." Law Professor Jonathan H. Adler has this essay today at National Review Online.
Posted at 09:17 by Howard Bashman



"Court bars nuptials for out-of-state gays": The Republican of Springfield, Massachusetts contains this article today. And The Boston Globe reports that "Ruling backs law restricting marriage."
Posted at 09:12 by Howard Bashman



Ten Commandments news: The News-Leader of Springfield, Missouri today contains an article headlined "School leader put on leave; Humansville district will give a final decision on superintendent" that begins, "The Humansville superintendent whose posting of the Ten Commandments on a school wall brought on a highly publicized federal lawsuit has been put on administrative leave without pay."
Posted at 07:08 by Howard Bashman



Judge Pryor, in England: BBC News provides this report. (With apologies to National Public Radio -- details here.)
Posted at 07:01 by Howard Bashman



"Officials: Prayer will continue at meetings." The Sun News of Myrtle Beach, South Carolina contains this article today.
Posted at 06:59 by Howard Bashman



"Court OKs DNA collection from parolees; Panel reverses itself on constitutionality of mandatory blood draws": Bob Egelko has this article today in The San Francisco Chronicle. The Los Angeles Times reports today that "Parolee DNA Testing OKd; Federal convicts can be forced to provide blood samples, an appeals court rules; Critics see a threat to privacy." And online at law.com, Jeff Chorney reports that "As 9th Circuit OKs DNA Profiling, Dissent Cries Big Brother."
Posted at 06:47 by Howard Bashman



Wednesday, August 18, 2004
The wire services are reporting: David Kravets of The Associated Press reports that "Court Upholds DNA Blood Test for Parolees." And in other news, "Judge limits Kennewick Man case to scientists, government."

Reuters, meanwhile, reports that "In Reversal, U.S. Court Allows Some Forced DNA Tests."
Posted at 20:51 by Howard Bashman



"Court Does About-Face on DNA Act": Maura Dolan of The Los Angeles Times provides this news update.
Posted at 18:31 by Howard Bashman



Today's rulings of note from the U.S. Court of Appeals for the Second Circuit: The court has once again ruled in a case that challenges the legality of a Vermont campaign finance law imposing expenditure and contribution limitations on campaigns for state office. You can access at this link the majority opinion issued today, while the dissent (all 150 pages of it) is available here.

And if you rue the paucity of appellate opinions discussing to whom copyrights for choreographed dances belong, be sure not to miss this decision, which addresses "several copyright and contract issues relating primarily to dances choreographed by the late Martha Graham, widely regarded as the founder of modern dance."
Posted at 14:54 by Howard Bashman



"'Potential Development' in Peterson Case": The AP provides this report, which is tantalizing simply for its lack of detail.
Posted at 14:48 by Howard Bashman



"Mass. Judge Denies Relief to Gay Couples": The Associated Press reports here that "A state judge on Wednesday declined to halt enforcement of a 1913 state law barring out-of-state couples from marrying in Massachusetts."
Posted at 14:10 by Howard Bashman



"The question in this case is whether it matters if the evidence seized illegally from the defendant had an alternative source in another illegal search but one that the defendant could not have challenged directly." Circuit Judge Richard A. Posner is the author of this fascinating, and circuit-split-creating, opinion that a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued today.
Posted at 14:01 by Howard Bashman



BREAKING NEWS -- Sharply divided eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit holds that the Fourth Amendment permits compulsory DNA profiling of certain conditionally-released federal offenders in the absence of individualized suspicion that they have committed additional crimes: Today's 6-5 ruling rejects a constitutional challenge to the federal law known as the DNA Analysis Backlog Elimination Act of 2000. You can access today's lengthy ruling, in its entirety, at this link.

The eleven judges who sat on the en banc panel are Chief Judge Mary M. Schroeder and Circuit Judges Harry Pregerson, Stephen Reinhardt, Alex Kozinski, Diarmuid F. O'Scannlain, Michael Daly Hawkins, Barry G. Silverman, Kim McLane Wardlaw, Ronald M. Gould, Richard R. Clifton, and Consuelo M. Callahan.

Judge O'Scannlain wrote the lead opinion, which garnered the votes of only five judges. The other four joining in the lead opinion are Chief Judge Schroeder and Circuit Judges Silverman, Clifton, and Callahan.

Circuit Judge Gould, the sixth and final vote needed to constitute a majority, issued a concurring opinion the first paragraph of which explains: "I write separately because I believe that we should affirm under a 'special needs' theory rather than the totality of the circumstances theory. I further pose a caveat on the limits of what we can properly decide today."

Circuit Judge Reinhardt wrote the lead dissent, in which Circuit Judges Pregerson, Kozinski, and Wardlaw joined. Judge Kozinski also issued a separate dissent. And Judge Hawkins, who did not formally join in Judge Reinhardt's dissent, also issued a dissenting opinion.

The result that the en banc court has reached is the opposite of the result that a divided three-judge Ninth Circuit panel arrived at in a decision that issued on October 2, 2003. That three-judge panel consisted of Circuit Judges Reinhardt, O'Scannlain, and Richard A. Paez. Because Circuit Judge Paez joined Circuit Judge Reinhardt in voting to hold unconstitutional the federal DNA Analysis Backlog Elimination Act of 2000, and because Circuit Judge Paez was not randomly selected to serve on the eleven-judge en banc panel, it appears that of the twelve Ninth Circuit judges to have voted on this law's constitutionality, six view the law as constitutional and six view the law as unconstitutional. My initial coverage of the three-judge panel's ruling can be accessed here.

Not all circuits are similarly riven by this issue. For example, in January 2004 a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, in an opinion by Circuit Judge Terence T. Evans, rejected a Fourth Amendment challenge to Wisconsin's DNA databank.
Posted at 13:21 by Howard Bashman



"Sex, lies, violence, all from a court seat; At Scott Peterson's trial, regular folk seek 'a minute of excitement'": This article appears today in The Los Angeles Times, along with an article headlined "On Tapes, Peterson Seeks to Visit Frey; Murder suspect's former mistress refused to meet, phone conversations played for jurors reveal." The San Mateo County Times contains an article headlined "Tape: Peterson offered to pay Frey's rent." The Modesto Bee contains articles headlined "Frey refused to meet Peterson"; "He lied -- but does that mean he killed?"; and "Liar, liar ... Sometimes, truth hurts." The Contra Costa Times reports that "Frey tells of gifts from Peterson." The San Jose Mercury News contains an article headlined "Defense's turn to question Amber Frey; Judge rules past relationships are 'fair game' for questions." And The San Francisco Chronicle contains an article headlined "A bag full of presents for lover's birthday; Jurors listen to fifth day of taped phone conversations."

Court TV, meanwhile, today offers an exclusive headlined "Police: Sharon Rocha lashed out at Scott Peterson after learning of mistress." You can access a transcript of the telephone call in question at this link.
Posted at 12:01 by Howard Bashman



Eighth Circuit holds that the practice of the Little Rock School District to subject public school students to random, suspicionless searches of their persons and belongings by school officials is unconstitutional: You can access today's ruling by a partially divided three-judge panel of the U.S. Court of Appeals for the Eighth Circuit at this link.
Posted at 11:33 by Howard Bashman



"Judgeship nominees: Twisting the law on interrogating detainees." Law Professor Herman Schwartz has this op-ed today in Newsday.
Posted at 11:23 by Howard Bashman



"Thief challenges dose of shame as punishment": This article appears today in USA Today.
Posted at 11:06 by Howard Bashman



"Extreme Supreme: A Kerry Court would be way left." Walter M. Weber today has this essay at National Review Online.
Posted at 10:24 by Howard Bashman



U.S. Bankruptcy Court upholds constitutionality of federal Defense of Marriage Act: Shannen W. Coffin has the details in an essay entitled "A Good Start: In re Kandu is a victory for democracy and the rule of law" published this morning at National Review Online, and you can access a copy of yesterday's ruling at this link.
Posted at 10:20 by Howard Bashman



Available online from The San Francisco Chronicle: In today's newspaper, Bob Egelko reports that "War veteran sues to keep from being sent back to Iraq; GI says his rights violated under Bush redeployment policy." And SF Gate columnist Mark Morford has an essay entitled "Still Proud To Be In S.F.: Who cares if 4,000 gay marriages went down in CA Supreme Court flames? The gauntlet has been thrown."
Posted at 09:34 by Howard Bashman



"Legal Hardball: Play ball? Lawyers would rather settle." This rather humorous article appears today in The Wall Street Journal.
Posted at 09:29 by Howard Bashman



"An unwelcome mat for free speech": Tony Mauro today has this op-ed in USA Today.
Posted at 07:22 by Howard Bashman



"Gays push national right to wed; Justice Minister urged to encourage provinces to license same-sex unions": The Toronto Globe and Mail contains this article today.
Posted at 07:20 by Howard Bashman



"After ruling, more children face trauma of testifying": This article appears today in The San Jose Mercury News.
Posted at 07:18 by Howard Bashman



"Setbacks on Press Protections Are Seen": The New York Times contains this article today.
Posted at 07:17 by Howard Bashman



"Disability case won't be class action; Judge says 25 courthouses named in Lane suit aren't similar enough to qualify": This article appears today in The Tennessean. The U.S. Supreme Court announced its ruling in Tennessee v. Lane on May 17, 2004.
Posted at 07:13 by Howard Bashman



"It's Butler for Supreme Court; Milwaukee circuit judge to make history as first black on state's top bench": The Milwaukee Journal Sentinel today contains this article. The individual in question will replace former Justice Diane S. Sykes, who left the Supreme Court of Wisconsin to serve on the U.S. Court of Appeals for the Seventh Circuit. As a result of this change in membership, women will no longer constitute a majority on Wisconsin's highest court.
Posted at 06:54 by Howard Bashman



"Cocaine tied to court official's exit; The state's chief justice says trace amounts found in John Kennedy's office": This article appears today in The News & Observer of Raleigh, North Carolina. The newspaper also makes available online this related document.
Posted at 06:36 by Howard Bashman



Tuesday, August 17, 2004
"Prosecutors' Appeal In Bryant Case Denied; Judge's Ruling on Accuser's Sex Life Left Intact": The Washington Post contains this article today. USA Today reports that "Bryant prosecution's appeal fails; Testimony on accuser's sex history to be allowed." The Los Angeles Times contains an article headlined "Another Setback for Prosecution; Colorado's high court declines to hear appeal of ruling regarding Bryant accuser's sex life." The Denver Post reports that "Ruling for Bryant remains intact" and "Privacy arguments may be public, judge in civil case says." The Rocky Mountain News reports that "Court at the ready; Appeal denied in Bryant case, clearing the way for the trial to begin"; "Cameras still to be decided"; and "Matsch weighs bid for secrecy." And The Vail Daily News reports that "Bryant gag order stems comment" and "High court backs judge."
Posted at 23:48 by Howard Bashman



"Luna feared losing job, hired lawyer, sources say; DiBiagio tells staff he lied about prosecutor's status to protect man's family": Wednesday's issue of The Baltimore Sun will contain an article that begins, "Shortly before his body was found in a Pennsylvania field, Assistant U.S. Attorney Jonathan P. Luna was worried about being fired and had asked an experienced former federal prosecutor to represent him in job-related legal matters, sources familiar with Luna and the prosecutor's office said." In related coverage, The Associated Press offers a report headlined "Friend: Slain Lawyer Distressed at Work." These reports follow a related article published today in The Washington Post under the headline "U.S. Attorney's Style, Agenda Faulted in Md."
Posted at 23:33 by Howard Bashman



"Rehearing on suicide ruling is rejected": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 23:14 by Howard Bashman



The Los Angeles Times is reporting: In today's newspaper, an article reports that "Judge 'Can Take' Prisons, Governor Says; But Schwarzenegger adds that he prefers to avoid receivership and fix the troubled system." In other news, "Veteran Lawyer to the Stars Stealthily Sets Up Own Shop." And an editorial is entitled "Suit Initiative Goes Too Far."
Posted at 22:50 by Howard Bashman



The Associated Press is reporting: In news from Louisiana, "Court fights continue on several fronts over gay marriage vote" and "One-year suspension recommended for judge who wore racial costume." In news from Florida, "Judge declines to remove parental notice measure from fall ballot." And in news from Virginia, "Falwell's new law school to teach aspiring attorneys to integrate faith with law."
Posted at 20:58 by Howard Bashman



What liberal Ninth Circuit? Today in The San Francisco Chronicle, Bob Egelko has an article headlined "Courts restricted in extraditions; 'A matter of foreign policy,' panel decides." The article begins, "Domestic courts have no business interfering if the United States decides to extradite a suspect to a nation that might use torture, a federal appeals court declared Monday." You can access yesterday's ruling by a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 17:43 by Howard Bashman



"Rachel Lea Hunter Supreme Court Campaign Revolutionizes Internet Communication": This press release heralds the fact that a candidate running for the Supreme Court of North Carolina has a "comprehensive web site [that] has garnered tremendous reviews from web development experts from throughout the United States." You can access the web site at this link, and the candidate even has a campaign blog. In looking at the candidate's online bio, I am curious to learn why the candidate now resides in North Carolina given that she grew up in Pennsylvania and clerked for a bunch of different state court appellate judges there. Hunter is one of eight candidates for this single North Carolina Supreme Court vacancy.
Posted at 16:45 by Howard Bashman



"It's Just the 'internet' Now": Wired News yesterday posted an article by its Copy Chief that begins, "Effective with this sentence, Wired News will no longer capitalize the 'I' in internet. At the same time, Web becomes web and Net becomes net."
Posted at 16:24 by Howard Bashman



Reuters is reporting from San Francisco: Now available online are articles headlined "Californians Ask Feds to Return Their Marijuana" and "Costco Target of Sex Bias Lawsuit."
Posted at 16:19 by Howard Bashman



"Vicious rapist wants out of solitary": This article appears in Wednesday's issue of The Australian.
Posted at 15:20 by Howard Bashman



"Justice stumps with Manchin, raises eyebrows": The Associated Press reports here from West Virginia that "Judicial officers and candidates aren't supposed to stump for or against other office-seekers, but that didn't appear to stop Supreme Court Justice Warren McGraw from campaigning with Joe Manchin, the Democratic nominee for governor."
Posted at 15:18 by Howard Bashman



"Star of Hope may join county in Bible dispute; Demonstrators continue their vigil to support display": This article appears today in The Houston Chronicle.
Posted at 15:16 by Howard Bashman



"Dirty Shame: The Ninth Circuit's dangerous endorsement of shaming punishments." Dan Markel has this essay today online at The New Republic.
Posted at 13:22 by Howard Bashman



"Jurors listen to more recorded calls; Peterson refused to talk to Frey about his last night with his wife, Laci": This article appears today in The San Mateo County Times, while yesterday that newspaper contained an article headlined "Frey evidence a boost for DA; But defense is likely to get in a last word on the audiotapes." The Modesto Bee reports today that "Frey unconvinced on tapes," while yesterday it reported that "Geragos set to face 'real test.'" The ModBee also makes available via this link additional written transcripts and audio from the telephone conversations. The Contra Costa Times reports today that "Peterson too, voiced suspicion." The San Jose Mercury News reports that "Lover changes from being tenacious to fragile in calls." The San Francisco Chronicle reports that "Phone tapes reveal apologies, cajoling; Jury hears more calls between suspect, girlfriend." And The Los Angeles Times reports that "Frey Called Peterson a Liar, Tapes Show; Jury hears conversations in which she challenged the defendant about his wife's disappearance."

According to The Associated Press, "Peterson Ex-Mistress May Be Cross-Examined" today.
Posted at 11:47 by Howard Bashman



License plate not redacted: As I recently noted here and here, some federal judges have opted to "Choose Life" for themselves and their family members by redacting plenty of details from annual financial disclosure forms that are supposed to be publicly available. Arguably running counter to that trend, however, is the seemingly official "U.S. Judge" license plate sported by a luxury SUV in Texas. Of course, as Tony Mauro has reported, even one U.S. Supreme Court Justice has been unable to resist the lure of a potentially revealing vanity plate.
Posted at 10:50 by Howard Bashman



"Confusion reigns in federal, state courts; While Oregon and other states await U.S. Supreme Court clarification, prosecutors may reindict suspects, and sentences may be in limbo": This article appears today in The Oregonian.
Posted at 10:28 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Judge Denies Navy on N.C. Landing Field"; "Guantanamo Man Faces Review Tribunal"; and "Celebrity Dramas Playing Out in Courtroom."
Posted at 10:24 by Howard Bashman



"We conclude that the District of Columbia is a state for purposes of Younger abstention": The doctrine of Younger abstention has existed since 1971, but not until today did the U.S. Court of Appeals for the D.C. Circuit issue an opinion deciding whether the District of Columbia is a State for purposes of Younger abstention.
Posted at 10:12 by Howard Bashman



Access online some of the content from the September | October 2004 issue of Legal Affairs magazine: The cover of the magazine contains an image consisting of five Justice Antonin Scalias and four Justice Clarence Thomases and asks, "Is This the Court's Future?"

The cover story itself consists of four items. Law Professor Stephen B. Presser has an essay titled "The Scalias Court: Bush understands that justices should interpret laws and protect our liberties the way the founders intended." Law Professor David Strauss has an essay titled "Kerry's Even Keel: He doesn't have an aggressive agenda for the courts; That's a good thing." And Law Professor Mark Tushnet has an essay titled "Dull and Duller: Realistically, neither Bush nor Kerry could get an ideologue through the Senate; Don't base your vote on the consequences for the court." Finally, as I wrote here last Thursday:
Accompanying those three quite interesting but rather serious essays is an item titled "Supreme Stats"; it draws on the law review article "Who Would Win a Tournament of Judges?" and includes an illustration that depicts nine potential Supreme Court nominees as a co-ed baseball team.
You can view that illustration at this link. With apologies to those who might confuse Seventh Circuit Judge Frank H. Easterbrook for Derek Jeter, the numbers shown on the judges' uniforms correspond to rankings set forth in the aforementioned law review article.
Posted at 09:57 by Howard Bashman



Hot double bobblehead doll action: As I originally mentioned here yesterday, The Green Bag has begun to ship to subscribers the Justice Sandra Day O'Connor bobblehead doll. The doll arrived at my office yesterday afternoon, and it wasn't until I got home last night that I removed it from the package. I was delighted to see -- as Tony Mauro previously alluded to here (third item) -- that the doll actually contains two bobbleheads: one belonging to Justice O'Connor, and the other belonging to the cow reclining to her left. Next in the series is the Antonin Scalia bobblehead doll, which is slated to feature waterfowl that transform from alive to mortally wounded, pumped full of lead.
Posted at 08:30 by Howard Bashman



"Florida Court Rules Against Religious School Vouchers": This article appears today in The New York Times. The Washington Times reports that "Florida court declares school vouchers illegal." The Miami Herald reports that "Court strikes down voucher system; Florida's appeals court declared the state's first school voucher law unconstitutional, sending it to the state Supreme Court for review." The St. Petersburg Times reports that "Court rules against vouchers; An appeals court calls them unconstitutional, but sends the case to Florida's high court." The South Florida Sun-Sentinel reports that "School vouchers struck down." The Palm Beach Post contains an article headlined "Appeals court: Some vouchers violate Florida Constitution." The Tallahassee Democrat reports that "Court tosses out vouchers; Gov. Bush planning to appeal the ruling." And The Daytona Beach News-Journal contains an article headlined "Court: Vouchers violate church-state separation."

You can access yesterday's ruling of a divided three-judge panel of Florida's First District Court of Appeal at this link.
Posted at 08:17 by Howard Bashman



"Big debates surround monuments": Ina Hughs has this op-ed today in The Knoxville News-Sentinel.
Posted at 08:15 by Howard Bashman



"SJC rules on the use of confessions; Directs judges on jury instructions": The Boston Globe today contains this article reporting on a decision that the Supreme Judicial Court of Massachusetts issued yesterday. And The Boston Herald today contains an article headlined "SJC to cops: Get suspects’ tales on tape -- or take hit."
Posted at 08:10 by Howard Bashman



"Courts split on sex clubs: l'orage founder goes to supreme court; One cabaret owner is acquitted in Quebec, while another's conviction is upheld." The Montreal Gazette today contains an article that begins, "Quebec's highest court seems to be swinging both ways when it comes to ruling on whether spouse-swapping clubs are legally tolerable."
Posted at 07:19 by Howard Bashman



"Gay marriage ballot issue headed to state's high court": This article appears today in The Advertiser of Lafayette, Louisiana. The Advocate of Baton Rouge reports today that "Same-sex marriage suit nixed." And The Times-Picayune reports today that "Gay marriage suit 'premature'; Court refuses to bar vote on amendment."
Posted at 07:16 by Howard Bashman



"State probe of Ohio court candidate temporarily barred": The Cleveland Plain Dealer today contains an article that begins, "A federal judge Monday temporarily barred a state investigation of an Ohio Supreme Court candidate. That decision could affect future judicial campaigns."
Posted at 07:14 by Howard Bashman



"Justices uphold judgment against Rudolph": The Birmingham News today contains an article that begins, "The Alabama Supreme Court has upheld a Jefferson County judge's ruling that accused abortion clinic bomber Eric Robert Rudolph must pay $115 million to a nurse maimed in the 1998 blast."
Posted at 06:58 by Howard Bashman



"Why the California Supreme Court Repudiated San Francisco's Issuance of Same-Sex Marriage Licenses": FindLaw columnist Vikram David Amar has this essay today.
Posted at 06:54 by Howard Bashman



"Court won't rehear attempt to block assisted-suicide law; Ashcroft is expected to ask the Supreme Court to take case": This article appears today in The Statesman Journal of Salem, Oregon.
Posted at 06:43 by Howard Bashman



Monday, August 16, 2004
In today's edition of The Los Angeles Times: A front page article is headlined "Punishing Start for the Freed; Unlike parolees, who receive state services, the wrongly convicted are left to deal unaided with shattered lives and festering resentments." And CBS News analyst Andrew Cohen has an op-ed entitled "Crying Wolf in the War Against Terror; The feds face a stunning blow to credibility by releasing a long-jailed U.S. citizen."
Posted at 23:44 by Howard Bashman



The Washington Post is reporting: Today's "Federal Diary" essay is headlined "For Dept. of Justice Lawyers, Overtime Doesn't Mean Extra Pay, and Legal Battle Continues." And an editorial is entitled "Until Courts Do Us Part."
Posted at 23:42 by Howard Bashman



Available online from law.com: An article reports that "2nd Circuit Upholds Ban of Broker From NYSE Floor." In news from California, "Next Gay Marriage Fight Could Move Fast." And in other news, "Threat of Suit Still Looms Over McGreevey; Resignation speech seems to lay groundwork for defense, if needed."
Posted at 23:05 by Howard Bashman



"Sex-for-ruling deal a possibility, says SC justice": Tuesday's issue of The Manila Times contains this article.
Posted at 21:00 by Howard Bashman



"Detainee interrogator is Madison native": This article appears today in The Capital Times of Madison, Wisconsin.
Posted at 20:59 by Howard Bashman



"Flight ID Fight Revived": Wired News provides this report.
Posted at 20:58 by Howard Bashman



"When inmates create art, should they profit? The case of a Texas painter on death row treads the fuzzy terrain between 'murderabilia' and prisoners' rights." This article will appear in Tuesday's issue of The Christian Science Monitor.
Posted at 20:42 by Howard Bashman



"Ruling will allow limited rape shield evidence in Bryant case": The Vail Daily News provides an update that begins, "The Colorado Supreme Court let stand Judge Terry Ruckriegle's ruling on the rape shield law allowing limited evidence in regard to the alleged victim's sexual history in the Kobe Bryant case."
Posted at 20:29 by Howard Bashman



"Dahlia Lithwick smears several Bush nominees in Sunday's NY Times": So writes the author of The Committee for Justice's blog, in a post you can access here, about Dahlia's op-ed published yesterday.
Posted at 20:20 by Howard Bashman



"Court Refuses to Revisit Assisted Suicide": The Associated Press reports here that "A federal appeals court is refusing to reconsider its decision to uphold Oregon's assisted-suicide law, rejecting a request from the Bush administration to set aside the only law of its kind in the nation." It appears that the order denying rehearing en banc did not even draw any published dissents. By contrast, as I first reported here, the three-judge panel's ruling was accompanied by a dissent, albeit by a Senior Ninth Circuit Judge who, due to senior status, doesn't have the ability to vote in favor of rehearing en banc.
Posted at 20:08 by Howard Bashman



Access online last Friday's order of the U.S. Court of Appeals for the Sixth Circuit holding that Blakely v. Washington does not render the U.S. Sentencing Guidelines unconstitutional: Thanks to a reader, I have made a copy of the order available here.
Posted at 17:39 by Howard Bashman



"Judge rules against try to stop gay marriage vote": The Advocate of Baton Rouge, Louisiana provides this news update.
Posted at 17:35 by Howard Bashman



"Sentenced to chaos: U.S. Supreme Court ruling needs clarification -- soon." This editorial appears today in The Grand Rapids Press.
Posted at 17:30 by Howard Bashman



"Law Schools That Protest Too Much: Universities are kicking military recruiters off campus; What a bad way to fight 'don't ask, don't tell.'" Slate has just posted online this jurisprudence essay by Phillip Carter, author of the "Intel Dump" blog. As Phil notes in his essay, he was one of the authors of this amicus brief that I filed in February 2004 in the U.S. Court of Appeals for the Third Circuit.
Posted at 17:11 by Howard Bashman



"No smoking gun likely in bias suit; Both sides to rely on stats in suit against Wal-Mart": Yesterday, Alex Daniels of The Arkansas Democrat-Gazette had this article in that newspaper.
Posted at 16:34 by Howard Bashman



Is it unlawful to require that passengers on commercial airline flights show identification before being allowed to travel? The case of Gilmore v. Ashcroft, which is now pending on appeal before the U.S. Court of Appeals for the Ninth Circuit, presents that issue. You can view the brief for appellant, filed today, at this link. And you can learn more about the case via this link.
Posted at 14:24 by Howard Bashman



The Green Bag ships its Sandra Day O'Connor bobblehead dolls: Mine arrived at the office today. Up next -- Antonin Scalia.
Posted at 14:18 by Howard Bashman



U.S. Court of Appeals for the Federal Circuit reverses $37 million Fifth Amendment takings award and orders entry of judgment in favor of the United States: Today's decision involves a big boat that was to be used in commercial fishing for mackerel and herring in the Exclusive Economic Zone of the United States in the Atlantic Ocean.
Posted at 14:00 by Howard Bashman



"Bryant Prosecutors Can't Bar Testimony": The AP reports here that "In another setback to the prosecution in the Kobe Bryant sexual assault case, the Colorado Supreme Court refused Monday to hear an appeal of a key ruling that allows the NBA star's attorneys to tell jurors about the accuser's sex life."
Posted at 13:40 by Howard Bashman



"Bryant back in court as trial nears": This article appears today in The Denver Post.
Posted at 12:05 by Howard Bashman



"Fla. Voucher Law Ruled Unconstitutional": The Associated Press reports here that "A Florida law that allows students at failing public schools to attend private schools at taxpayers' expense is unconstitutional, a state appeals court ruled Monday. The decision by the 1st District Court of Appeal upholds a ruling by a trial judge saying the state constitution forbids the use of tax money to send youngsters to religious schools." You can access today's ruling of a divided three-judge panel of Florida's First District Court of Appeal at this link.
Posted at 10:59 by Howard Bashman



"Milton Pollack, 97, Noted Federal District Judge, Dies": This obituary appears today in The New York Times.
Posted at 10:29 by Howard Bashman



The wire services are reporting: The Associated Press reports that "Prosecutors May Drop Case Against Bryant." And what do you call a woman with no arms and no legs who claims to have been kept off of an Air France flight? "Plaintiff," as a report headlined "Woman With No Limbs Sues Air France" demonstrates.

Reuters, meanwhile, evokes memories of a childhood game in an article headlined "Simon says pending McDonald's litigation completed." And Reuters likewise reports that "Limbless Woman Sues Air France Over 'Torso' Snub."
Posted at 10:12 by Howard Bashman



Access online the Ninth Circuit's order allowing Wal-Mart to take an interlocutory appeal from a California federal district court's decision certifying the largest sex discrimination class action in U.S. history: You can view a copy of the order at this link. I first noted this development Friday evening in a post you can access here, and I thereafter collected additional news coverage at this link.
Posted at 09:50 by Howard Bashman



The Associated Press is reporting: In news from Delaware, "Execution of youths eyed: State wrestles with issue." In news from Louisiana, "Hearing to argue gay ban; Vote on marriage unfair, lawyers say." And a report is headlined "Teen abortion issue goes to ballot in Florida in November."
Posted at 07:22 by Howard Bashman



"Future of court is at stake": Menachem Z. Rosensaft has this op-ed today in The South Florida Sun-Sentinel.
Posted at 07:20 by Howard Bashman



"Lawyer to visit Guantanamo trio; An American lawyer has been given permission to visit some of the men with UK links held in Guantanamo Bay": BBC News provides this report.
Posted at 07:19 by Howard Bashman



"Ginsburg joining Touro celebration; Ruth Bader Ginsburg will give the keynote address at Touro Synagogue's annual commemoration of a historic letter from President George Washington": This article appears today in The Providence Journal.
Posted at 07:02 by Howard Bashman



Sunday, August 15, 2004
The Los Angeles Times is reporting: Today's newspaper reports that "Texas Weighs Its Life or Death Decisions; The execution of a schizophrenic man helps build support for a new sentencing option in capital cases: life without parole." In regional news, Claire Luna reports that "Judge Used His Court's Facilities to Intimidate Her, Tenant Alleges; A state commission is investigating O.C. Judge John M. Watson, who says no rules were broken." In other news, "Cyberspace Gives Al Qaeda Refuge; Driven underground, the terrorist network has learned to exploit the Internet as it recasts itself into a more elusive, self-perpetuating form." Law Professor Lawrence C. Levine has an op-ed entitled "Same-Sex Marriage Fight Will Rage On; Court has yet to give key ruling." Sam Harris has an op-ed entitled "Holy Terror: Religion isn't the solution -- it's the problem." And Sandy Banks has an op-ed entitled "Today's Lesson: What's a mother to tell a daughter about the Kobe Bryant case?"
Posted at 23:51 by Howard Bashman



"Ex-lover shines on witness stand; Amber Frey comes across as bright, complex woman": This article appears today in The San Francisco Chronicle. And the August 23, 2004 issue of Newsweek contains an article headlined "She Glitters, But Is She Really Gold? The defense takes aim at Scott Peterson's flame."
Posted at 23:48 by Howard Bashman



In today's issue of The New York Times: Adam Liptak has an article headlined "Kobe Bryant's Accuser, Internet Victim" that contrasts the ease of online access to documents filed in the Kobe Bryant criminal case with the difficulty of accessing financial reports filed by federal judges. Law Professor Jeffrey Rosen has a Week in Review essay entitled "The Struggle Over the Torture Memos." And Law Professor Stephen Gillers has a Week in Review essay entitled "Paying the Price of a Good Defense."
Posted at 23:45 by Howard Bashman



"Two brothers, two weddings, one family; As devoted as the parents were to the children, the bond between the boys was tighter still": This lengthy article, the first of four parts, appears today in The Boston Globe.
Posted at 23:40 by Howard Bashman



Canadian lawyers just say no to not having sex with clients: CBC News offers a report headlined "No 'no sex please, we're lawyers' for Canadian Bar Association." And Canadian Press reports that "Lawyers reject guidelines on sex with clients."
Posted at 23:28 by Howard Bashman



"Fame helps Alan Page find a home on bench": This article will appear in Monday's issue of The Minneapolis Star Tribune.
Posted at 23:24 by Howard Bashman



"Some schools to start testing for drugs; Plans draw support, but concerns are raised about rights' violations": The Houston Chronicle contains this article today.
Posted at 23:19 by Howard Bashman



"U.S. Focus: Graying Judiciary, Pivotal Election; High court: a switch in nine? Presidential-race victor could change direction of sharply divided court." This article will appear in Monday's issue of The Richmond Times-Dispatch.
Posted at 23:06 by Howard Bashman



"Dog sniff not a search, court says": The Casper Star-Tribune today contains this article reporting on a ruling that the Supreme Court of Wyoming issued on Friday.
Posted at 22:59 by Howard Bashman



"11 groups file briefs in school case; Most are urging the Kansas Supreme Court to uphold a lower court decision on state funding": This article appears today in The Wichita Eagle.
Posted at 22:45 by Howard Bashman



"Terror inmates seek looser limits; Al-Qaeda convicts say rules at Supermax are too harsh": The Denver Post contains this article today.
Posted at 14:52 by Howard Bashman



"Group forms to unseat judge in gay divorce; A state lawmaker's son says District Judge Jeffrey Neary's ruling was unconstitutional": This article appeared yesterday in The Des Moines Register.
Posted at 14:49 by Howard Bashman



"Courtly couples: What happens when lawyers and judges fall in love." The Newark Star-Ledger today contains this article.
Posted at 12:24 by Howard Bashman



"Faithful flock to former Ala. icon": This article appears today in The Denver Post. The Pueblo Chieftain reported yesterday that "'Roy's rock' on display this morning." And from Alabama, The Associated Press reports that "Moore's successor likes job, but future uncertain."
Posted at 09:10 by Howard Bashman



"Drug seller's high court case tests judges' power": The Wisconsin State Journal today contains an article that begins, "Had its timing been different, Freddie Joe Booker's appeal of his 30-year federal prison sentence might only have garnered a routine review and perfunctory denial." The Newark Star-Ledger reported yesterday that "Girl's kidnapper wins 6-year sentence reduction; Abductor to seek even less time in Spring Lake case." And The San Diego Union-Tribune reported yesterday that "5 convicted in scam involving $46 million."

The blog "Sentencing Law and Policy," meanwhile, reports here that the en banc U.S. Court of Appeals for the Sixth Circuit on Friday entered an order holding that the U.S. Supreme Court's recent decision in Blakely v. Washington does not render the U.S. Sentencing Guidelines unconstitutional.
Posted at 08:52 by Howard Bashman



"Activist, Schmactivist": Guest columnist Dahlia Lithwick has this op-ed today in The New York Times. The op-ed begins, "There is probably nothing I can do or say to convince you that the words 'activist judge' have no more meaning than the words 'hectic smurlbats.'"
Posted at 08:42 by Howard Bashman



Saturday, August 14, 2004
The New York Times is reporting: Sunday's issue will contain an article headlined "A Governor's Downfall, in 20 Wrenching Days."

Today's newspaper, meanwhile, reports that "Antitrust Lawsuit Over Medical Residency System Is Dismissed." And an article is headlined "Peyote, Indian Religion and the Issue of Exclusivity."
Posted at 23:13 by Howard Bashman



"Blog Interrupted: When Jessica Cutler put her dirty secrets on the Web, she lost her job, signed a book deal, posed for Playboy -- and raised a ton of questions about where America is headed." This lengthy article (access it all here on a single page) will appear in tomorrow's issue of The Washington Post Magazine.
Posted at 23:01 by Howard Bashman



"Bosses who lure other workers can be sued; State court says wrongdoers are liable for damages": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 22:42 by Howard Bashman



In today's issue of The Los Angeles Times: An article reports that "As Trial Opens, Jury Told Teacher Faked Hate Crime; Woman tried to collect insurance on damaged car, prosecution says; Case roiled campuses." In other news, "Blood on Cooper's Shirt Will Be Tested." An article headlined "Court OKs Inmates' Suit" reports on this decision that the U.S. Court of Appeals for the Ninth Circuit issued yesterday. And in other news, "Judge Puts UC Hike of Fees on Hold; The injunction comes in response to a suit by some students in the university system's professional schools; About 3,000 are affected."
Posted at 14:46 by Howard Bashman



"Amending '3-strikes' law has voter support, poll finds; Only serious crimes would count in tally": This article appears today in The San Francisco Chronicle. The Sacramento Bee contains an article headlined "Field Poll: Softening '3 strikes' still popular; New survey added a question to try to ensure that voters understand Prop. 66." And The San Diego Union-Tribune reports that "Most support weakening of '3-strikes' law."
Posted at 14:32 by Howard Bashman



"Gay Marriage Becomes a Swing Issue With Pull": The New York Times today contains this article, along with an editorial entitled "A Winding Path to Gay Marriage." The San Francisco Chronicle today contains an article headlined "The battle over same-sex marriage: Grateful couples gather at S.F.'s 'Chapel of Love.'" The Los Angeles Times today contains an article headlined "Marriage Debate in a New Arena; Democrats might try to pass a bill in the Legislature legalizing same-sex unions, but would still face a possible veto."

The Salt Lake Tribune today reports that "Gays disappointed, vow to press for marriage rights; California ruling: Utahns briefly had their hopes raised; new concerns about legal status arise after judges void nuptials." The Daily Herald of Everett, Washington reports that "Newly unwed couple hopeful; There may still be a chance to get legally married, say a gay Silverton couple whose vows were overturned by a court." The Woodland Daily Democrat reports that "Breaking up hard to do." And The Press-Enterprise reports that "Gays say added rights don't equal a marriage; Domestic unions gain new strength as of Jan. 1, but couples want to wed instead."

Finally, from Louisiana, The Times-Picayune reports today that "Judge halts vote on same-sex marriage; Amendment may be taken off Sept. 18 ballot; state appeals." And The Advocate of Baton Rouge reports that "Same-sex issue going to high court."
Posted at 14:04 by Howard Bashman



"Detainees fail to win over hearings; Four found to be enemy combatants": This article appears today in The Boston Globe. And The Miami Herald reports that "4 detainees must stay in U.S. custody; Four detainees at Guantanamo were properly held as enemy combatants and will continue to be kept in detention, Defense officials said."
Posted at 10:37 by Howard Bashman



"Courthouses given disability warning": In news from Montana, The Billings Gazette today contains this article. And in related news from Tennessee, The Associated Press reports that "Judge to rule on class action status soon in disability case."
Posted at 10:33 by Howard Bashman



"Group turns in ballot initiative petition; Commandment backers must wait for validation of 18,507 signatures": This article appears today in The Idaho Statesman.
Posted at 10:31 by Howard Bashman



"Lawsuit over light cigarettes is allowed": The Boston Globe contains this article today.
Posted at 10:26 by Howard Bashman



"Bryant trial won't be delayed; Judge denies prosecution request, saying juror pool has not been compromised": This article appears today in The Denver Post. The Rocky Mountain News reports today that "Bryant trial delay denied; Judge strikes down prosecution's bid; start date Aug. 27" and "News fights motion in Bryant civil suit; 9 others expected to join objection over secrecy bid." The Los Angeles Times reports today that "Bryant Case Judge Denies Delay Request." The Washington Post reports that "Judge Rejects Delay In Kobe Bryant Case; Defeat for Prosecution Comes With Two Victories Regarding Evidence." And The New York Times reports that "Criticism Takes Toll on Judge in Bryant Sexual Assault Case."
Posted at 08:51 by Howard Bashman



"Review OKd in Wal-Mart case; Court to rule on class-action status of sex-bias lawsuit": Bob Egelko has this article in today's issue of The San Francisco Chronicle. And Alex Daniels of The Arkansas Democrat-Gazette reports today that "Judges to review Wal-Mart bias suit; Class-status ruling fought by retailer."
Posted at 08:35 by Howard Bashman



Friday, August 13, 2004
So-called "enemy combatants" in the news: Saturday's issue of The New York Times will contain articles headlined "Military Tribunals Uphold Detentions of 4" and "American Caught With Taliban Seeks Review of 20-Year Term." And today's newspaper reported that "U.S. Signals End to Legal Fight Over an 'Enemy Combatant.'"

In somewhat related news, The Boston Globe today reports that "Lawyers for detainees seek to delay tribunals; Government accused of hindering defense."
Posted at 23:30 by Howard Bashman



"Bryant case judge denies request for delay": The Associated Press provides this report. The Rocky Mountain News reports today that "Bryant gag order unfair, woman's attorneys argue; They say it prevents them from responding to 'lies.'" The Denver Post reports today that "Civil suit against Bryant assigned to Judge Matsch." And The Vail Daily News today contains an article headlined "Is Kobe captivating Eagle County?"
Posted at 23:20 by Howard Bashman



Available online from law.com: An article reports that "2nd Circuit Upholds Guidelines Until High Court Rules." In other news, "'Antagonistic Motions' Spark Retort From Judge." And in news from California, "Federal Judge Finds Internet Porn Suit Is No Perfect 10."
Posted at 23:04 by Howard Bashman



"Judge blocks anti-gay marriage amendment on Louisiana ballot": The Associated Press reports here that "A judge blocked a Sept. 18 vote on a constitutional ban on same-sex marriages on Friday, but suspended his order so the state can appeal directly to the Louisiana Supreme Court."
Posted at 23:03 by Howard Bashman



In news coverage of yesterday's same-sex marriage ruling of the Supreme Court of California: The New York Times reports that "California Supreme Court Rules Gay Unions Have No Standing." The Washington Post reports that "High Court in Calif. Nullifies Gay Marriages; San Francisco Rites Rejected; Ban's Constitutionality Pending"; "Gay Rights Activists Weigh Tactics of Marriage Push; Supporters Say Licenses for Same-Sex Couples Served Broader Purpose; Others Say They Were a Mistake"; and "Fate of Tangible and Intangible Benefits a Concern." The Boston Globe reports that "Calif. court voids gay marriages; San Francisco mayor faulted." The Chicago Tribune reports that "California court annuls gay unions; Licenses issued in San Francisco ruled illegal." USA Today reports that "Court voids about 4,000 gay marriages in Calif.; Doesn't rule on whether law violates Constitution." And The Washington Times reports that "California court voids same-sex 'marriages.'"

Bob Egelko of The San Francisco Chronicle has an article headlined "Top state court voids S.F.'s gay marriages; A Mayor overruled: Newsom found to violate California law by issuing same-sex licenses." And in other coverage, The SFChronicle contains articles headlined "Newsom, unbowed by decision, says he is 'more resolved'; S.F. mayor reacts: Suit against state ban will continue"; "City's gays, lesbians disappointed but determined; Setback strengthens push for marriage rights"; "A family reacts: License revoked, but not our union"; and "Reaction of religious to marriage ruling is a mix of regret and relief; Bible used to support opposing views." The SFChronicle also contains an editorial entitled "A setback, not an end."

The San Francisco Examiner contains articles headlined "'Can't take our love away'; City officials say issue still looms after court ruling"; "Crestfallen gays remain defiant despite setback"; and "'...Not giving it back'; Lesbian couple was among first to wed in city."

The Los Angeles Times reports that "State's High Court Voids S.F. Same-Sex Marriages; The justices say the mayor overstepped in granting licenses to lesbian and gay couples; Constitutionality issue awaits further rulings" and "Couples Vow to Fight for 'Little Piece of Paper'; Though not a surprise, the ruling is a blow to many who considered themselves married; Some worry about the financial implications."

Claire Cooper, legal affairs writer for The Sacramento Bee, reports that "High court overturns S.F. gay marriages." And in other coverage, the newspaper also reports that "Gays who tied the knot in S.F. ask what's next; Foes of gay marriage pleased, but wanted Newsom punished."

The San Jose Mercury News reports that "Gay vows nullified; legal fight not over; S.F. went too far, state High Court says" and "Despite ruling, wedding banquet for pair will go on." The Mercury News also contains an editorial entitled "Anti-gay marriage ruling, with its bias, is wrong."

The Contra Costa Times reports that "Court voids same-sex marriages." Josh Richman of The Oakland Tribune reports that "Court voids same-sex marriages; Top state justices say S.F. officials overstepped their authority; 4,000-plus licenses deemed invalid." The San Diego Union-Tribune reports that "California's high court voids San Francisco gay marriages; Justices unanimous in deciding mayor exceeded authority" and "Gays vow to continue to struggle for right to be married."

The Los Angeles Daily News reports that "Gay pairs' weddings voided; Court says city jumped gun on statewide issue." The San Mateo Daily Journal reports that "Gay marriages illegal." The Record of Stockton, California reports that "S.F. gay marriages voided; S.J. group protests ruling." The Monterey County Herald reports that "Local couple not surprised by marriage invalidation." The Tri-Valley Herald reports that "High court's ruling ripples through Valley." The Ventura County Star reports that "County couples not surprised by ruling."

The Desert Sun reports that "Valley residents respond to high court marriage ruling." The Santa Cruz Sentinel reports that "State's high court ruling on gay marriage 'painful.'" The Marin Independent Journal reports that "Local couples upset at gay marriage decision, vow to fight to legalize licenses." The Union of Western Nevada County, California reports that "Local woman doesn't feel 'less married.'" The Fresno Bee reports that "Gay couple affected by ruling hopeful for future." The Modesto Bee reports that "Justices revoke same-sex marriages." The Times-Herald reports that "Ruling brings both anger and applause." The Daily Republic reports that "Local reaction runs the gamut." And The Gilroy Dispatch, from California's garlic capital, offers an article headlined "Gay marriage ruling - Gilroyans' opinions split."

From Seattle, The Seattle Times reports that "Ballard couple mourn marital loss," while The Seattle Post-Intelligencer reports that "Some local gay couples saddened by ruling voiding S.F. unions." The Baltimore Sun reports that "Gay couple married in California undaunted by ruling; Local pair among 4,000 wed in San Francisco." The Tucson Citizen reports that "Tucsonans' marriage nullified; The gay couple's February wedding is struck down by the California Supreme Court." And BBC News offers a report headlined "British woman's gay marriage fight: A British woman fears she will have to give up her new life in San Francisco after the Supreme Court of California annulled her lesbian marriage."
Posted at 21:25 by Howard Bashman



"Court Lets Wal-Mart Appeal Class-Action Status": Reuters reports on this significant news from the U.S. Court of Appeals for the Ninth Circuit. If anyone has a copy of the Ninth Circuit's ruling in PDF format, I'll be happy to post it online for others to see.

The class certification ruling of District Judge Martin J. Jenkins of the U.S. District Court for the Northern District of California can be accessed at this link.

The Ninth Circuit's decision to allow interlocutory review of the class certification ruling does not guarantee reversal, but it does mean that reversal at this juncture remains a possibility. In recent coverage of this matter, The Arkansas Democrat-Gazette reported that "Unbridled court to rule on size of Wal-Mart suit."
Posted at 17:52 by Howard Bashman



"Ombudsmen Help District of Delaware Judges Stay Accessible": Newspapers have ombudspeople, and so does at least one federal court, according to this recent press release from the Administrative Office of the U.S. Courts.
Posted at 17:45 by Howard Bashman



"Reagan: The Great Divider." Lincoln Caplan, editor and president of Legal Affairs magazine, has this op-ed today in The Hartford Courant.
Posted at 17:27 by Howard Bashman



"Judge Dismisses Medical Residents' Suit": The Associated Press reports here that "A federal court judge Friday dismissed an antitrust lawsuit against a national program that matches medical residents with jobs in teaching hospitals around the country." The ruling of the U.S. District Court for the District of Columbia can be accessed here.
Posted at 17:12 by Howard Bashman



"We're hit!" So proclaims the Web site of The Fort Myers News-Press. You can access more information at this link and a live video feed (Windows Media Player) of the local doppler radar narrated by local weather forecasters.
Posted at 16:47 by Howard Bashman



"'Snuggler' gets 5 years' probation": Via "ObscureStore," I see that The Baton Rouge Advocate today contains this article, which includes a photograph of the so-called "serial snuggler."
Posted at 16:40 by Howard Bashman



In today's issue of The Metropolitan News-Enterprise: An article reports that "Justices Void Same-Sex Marriages, Say Mayor Exceeded Authority." At some point tonight, I hope to put up a post that collects news coverage from throughout the Nation of this quite newsworthy ruling that the Supreme Court of California issued yesterday.

The other decision that California's highest court issued yesterday is noteworthy in its own right. MetNews provides coverage of that ruling in an article headlined "High Court Rules for Pasadena Immigration Lawyer In Tortious Interference Suit Against Ex-Employees." The article explains that the court "[r]eject[ed] a four-year-old Court of Appeal decision holding that interference with an at-will employment relationship can never be tortious."
Posted at 16:25 by Howard Bashman



"Mom who smoked dodges jail time; She's released on bail after appealing a 10-day sentence for lighting up near her kids": This article appears today in The Richmond Times-Dispatch.
Posted at 15:56 by Howard Bashman



"Judge sues to enjoin court from restraining campaign speech": The Daily Reporter of central Ohio today offers an article that begins, "Judge William O'Neill of the 11th District Court of Appeals, a candidate for the Supreme Court of Ohio, has filed a lawsuit against the court's disciplinary counsel, seeking to stop a pending investigation into comments the candidate has made during his campaign."
Posted at 15:47 by Howard Bashman



"Can't Anyone Here Play This Game?" CBS News analyst Andrew Cohen has today this essay for that network's Denver affiliate about recent developments in the Kobe Bryant case.
Posted at 15:30 by Howard Bashman



"Kobe Bryant's Lawyers Say No to Delay in Trial": Reuters provides this report.
Posted at 14:21 by Howard Bashman



Splintered three-judge panel of the U.S. Court of Appeals for the Seventh Circuit decides long-pending appeal involving alleged denial of constitutional right of access to the courts: The decision consists of four separate opinions -- one designated "Per Curiam" and one from each of the judges on the panel. The second paragraph of the Per Curiam opinion states:
It is the unanimous opinion of the court that [the defendant] is not protected by absolute quasi-judicial immunity. Nevertheless, it is the opinion of the majority of the panel that [the plaintiff] has not stated a claim for a constitutional violation of right to access to the courts; the individual judges, however, differ with respect to how they arrive at that determination. A third member of the panel is of the opinion that [the plaintiff's] complaint states a constitutional violation and that [the defendant] is not entitled to qualified immunity on that claim.
You can access the complete ruling at this link.
Posted at 13:40 by Howard Bashman



"After Review, 4 Detainees Won't Be Freed": The AP provides this report on the status of War-on-Terror detainee hearings at Guantanamo. Today the U.S. Department of Defense had Secretary of the Navy Gordon England provide a news briefing on the Guantanamo hearings, and you can listen to the news briefing by clicking here (Real Player required).
Posted at 13:32 by Howard Bashman



"Mass. Group of Smokers Recertified as a Class": Reuters provides this report, while The Associated Press offers a report headlined "Court: Light Cigarette Suit Can Proceed." You can access today's ruling of the Supreme Judicial Court of Massachusetts at this link.
Posted at 13:24 by Howard Bashman



"Broken Vows: On the day New Jersey Governor McGreevey resigns over a gay affair, the California Supreme Court annuls 4,000 gay marriages; Guess which story gets more coverage?" E.J. Graff today has this essay at The New Republic Online.
Posted at 11:54 by Howard Bashman



"Frey interrogates Peterson on taped phone calls; Tapes of phone calls reveal Frey's pointed questioning about Laci": The San Mateo County Times contains this article today. The Modesto Bee reports contains an article headlined "Strange twist to Frey tapes." The Contra Costa Times reports that "Peterson tells Frey of lies, Laci on tape." The San Jose Mercury News reports that "In calls, lover grilled Peterson over missing wife." The San Francisco Chronicle contains an article headlined "Defendant: 'I have lied to you'; Dramatic day as tapes reveal apologies, anger." The Los Angeles Times reports that "Frey Pressed Peterson to Tell Her the Entire Truth." And USA Today reports that "Peterson tells lover of lies, missing wife in 2003 calls."
Posted at 11:38 by Howard Bashman



"U.S.: 'No legal rights' for detainees; Prisoners' lawyers, Justice Dept. differ on high court ruling." This article appears today in USA Today.
Posted at 11:26 by Howard Bashman



Last call: On Monday, August 16, 2004, I am due to transmit in writing my list of questions to the September 2004 "20 questions for the appellate judge" interviewee. Thanks much to those readers who have already offered questions for next month's interviewee, Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin. For those readers who still wish to send along to me via email questions or topics for questions, the last minute has officially arrived.
Posted at 11:01 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": This morning's broadcast contained segments entitled "Activists to Fights Gay Marriage Nullifications" and "New Jersey Governor Resigns over Gay Affair" (Real Player required).
Posted at 10:03 by Howard Bashman



"Times Reporter Is Subpoenaed in Leak Case": Adam Liptak has this article today in The New York Times.
Posted at 10:00 by Howard Bashman



The wire services are reporting: Now available online from Reuters are reports headlined "Inmate Loses Court Bid to Grow Hair"; "Eastwood Settles Suit Over Wife-Beating Claims"; and "U.S. Ordered to Give Rights Groups Torture Papers."

The Associated Press, meanwhile, reports that "Legal Questions Surround Google Interview" and "Serial 'Snuggler' Sentenced to Probation."
Posted at 09:48 by Howard Bashman



"Sandwich Boards of Shame for Convicted Execs": Benjamin Bycel has this op-ed today in The Los Angeles Times. Given that the author's last name is Bycel, you might think he too would know that Hester's last name isn't "Prin."
Posted at 08:44 by Howard Bashman



"Court Rules That Harvard, Not Family, Should Receive Father's Money": This article published today in The Harvard Crimson reports on a recent ruling of the Superior Court of Pennsylvania.
Posted at 08:41 by Howard Bashman



"Legal bid to undo campaign law fails; Court won't exempt Wisconsin group from ad limits": The Milwaukee Journal Sentinel contains this article today.
Posted at 08:37 by Howard Bashman



"Suit filed against Kentucky's method of lethal injection": This article appears today in The Lexington Herald-Leader.
Posted at 08:35 by Howard Bashman



Death penalty "volunteer" executed in Nevada: The Las Vegas Review Journal reports today that "Death row inmate executed; Dennis calm, quiet as he gets his wish for life to end." And The Reno Gazette-Journal reports that "Nevada death row inmate executed for '99 murder."
Posted at 07:11 by Howard Bashman



"New law enables grandparents to file for visitation rights": This article appears today in The Chicago Sun-Times.
Posted at 07:09 by Howard Bashman



Ten Commandments news: The Idaho Statesman reports today that "Deadline today for monument petition." And The Daily Herald of Provo, Utah reports today that "City adopts policy for monuments."
Posted at 06:51 by Howard Bashman



"Thoughts on the Law Addressing Bad Federal Judges: Self-Policing Isn't Working, But Is There a Good Alternative?" FindLaw columnist John W. Dean has this essay today.
Posted at 06:46 by Howard Bashman



"High court decision could invalidate sentencing rules": This article appears today in The Courier-Journal of Louisville, Kentucky. The Hartford Courant reports today that "Federal Sentencing Rules Upheld For Now; U.S. Supreme Court Will Decide Constitutionality." The Seattle Times reports today that "Seattle teens won't face exceptional sentences." And The Rocky Mountain News reports today that "Ex-Qwest exec may face longer time in prison."
Posted at 06:42 by Howard Bashman



Available online from law.com: In news from California, "Gay Marriages Voided, but Questions Remain; By 5-2 vote, justices end 4,000 marriages, hint at future plans." Shannon P. Duffy reports that "3rd Circuit Revives Suit Over Porn Ban in Prisons." And in other news, "11th Circuit: Fla. Death Row Cells Not Cruelly Hot."
Posted at 06:35 by Howard Bashman



"'Kiss Me, Guido': The E! True Hollywood Story of Judge Guido Calabresi": The blog "Underneath Their Robes" offers this incredibly lengthy post.
Posted at 00:30 by Howard Bashman



Thursday, August 12, 2004
U.S. Attorney for the U.S. Virgin Islands to leave public service after 28 years as a state and federal prosecutor: This article appears today in The Virgin Islands Daily News.
Posted at 23:40 by Howard Bashman



"A Michigan Supreme Court Decision Supports Private Landowners' Rights: Its Reasoning and Possible Nationwide Ramifications." FindLaw columnist Marci Hamilton has this essay today.
Posted at 23:33 by Howard Bashman



"Prosecution in Kobe Bryant Case Asks That Trial Be Delayed": This article appears today in The New York Times. The Washington Post reports that "Prosecutors Seek Indefinite Delay For Bryant Trial." The Los Angeles Times reports that "Bryant Prosecutors Seek Delay Amid Signs of Trouble; 'They're doing anything they can to stay out of that courtroom,' one expert says of the case." And USA Today reports that "Prosecutors seek to delay start of Bryant rape trial."

The Vail Daily News reports that "Lawyers spar over fair trial" and furnishes this copy of a motion that attorneys for news organizations filed today seeking access to additional materials filed under seal. The Rocky Mountain News contains articles headlined "Eagle prosecutors seek delay in Aug. 27 trial date"; "Bryant DA appeals sexual history ruling"; and "Letter blasts Bryant judge; Accuser's father says family has 'lost trust' in obtaining fair trial." The Rocky Mountain News also provides online access to the "Letter to Judge Ruckriegle from the father of the alleged victim." Finally, The Denver Post reports that "Prosecutors in Bryant case request delay of trial."
Posted at 23:20 by Howard Bashman



"Judicial Nominations": Tara Ross has this essay today at The American Enterprise Online.
Posted at 23:08 by Howard Bashman



Imagine a U.S. Supreme Court chock full of Scalias and Thomases: The September | October 2004 issue of Legal Affairs magazine arrived in today's mail, and its cover image depicts a Supreme Court with five Justice Scalias and four Justice Thomases on which Scalia appears to be serving as Chief Justice.

The magazine's cover story consists of three separate essays -- two of the essays discuss from quite different points of view why one who cares about the composition of the Court should favor Bush or Kerry in November; the third essay argues that the composition of the Court won't differ meaningfully in any event. The authors of these essays are Law Professors Stephen B. Presser, David Strauss, and Mark Tushnet. Accompanying those three quite interesting but rather serious essays is an item titled "Supreme Stats"; it draws on the law review article "Who Would Win a Tournament of Judges?" and includes an illustration that depicts nine potential Supreme Court nominees as a co-ed baseball team.

Sometime soon, the Legal Affairs Web site will be updated with material from this latest issue of the magazine that just became available in print to subscribers.
Posted at 22:50 by Howard Bashman



"Supermajority Rules And The Judicial Confirmation Process": Now available online via SSRN is this quite interesting law review article written by Law Professors John O. McGinnis and Michael B. Rappaport. The article's abstract begins, "In this paper we assess the effect of possible supermajority rules on the now contentious Senate confirmation process for judges." Thanks to the "Legal Theory Blog" for the pointer.
Posted at 22:44 by Howard Bashman



On this evening's broadcast of NPR's "All Things Considered": The broadcast contained segments entitled "California High Court Voids S.F. Gay Marriages" and "Marriages Invalidated in California" (Real Player required).
Posted at 22:41 by Howard Bashman



The federal government files its opening U.S. Supreme Court brief on the merits in the medical marijuana case known as Ashcroft v. Raich: You can access the brief at this link, via "SCOTUSblog," and the joint appendix (no pun intended) is available here.
Posted at 22:26 by Howard Bashman



En banc U.S. Court of Appeals for the Fifth Circuit rules 10-6 that guardian ad litem fees can be taxed against the federal government in Federal Tort Claims Act cases: You can access the ruling at this link. Circuit Judge Jerry E. Smith wrote a passionate dissent, in which four other judges joined in full and another judge joined in part. Judge Smith's dissent begins:
In an act of Orwellian doublethink, the majority concludes that although "Rule 17(c) does not specifically state" that guardian ad litem fees may be taxed as costs, it nevertheless provides "express statutory authorization" for that result. Compare Maj. Op. at 18 with id. at 13, 18. Emboldened by that cogent insight, the majority then embarks on a broad survey of legal fictions, highlighted by an impliedly explicit waiver of sovereign immunity and the discovery that a statute has binding force despite its repeal in 1948.

As if sitting in Congress, the majority is ultimately able to agree on nothing more than a result: Guardian ad litem fees may be taxed as costs against the government despite sovereign immunity and despite Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987). The doctrinal basis for that result is so illusory, however, that the majority feels compelled to insulate itself in layer upon layer of "alternative" holdings. As a result, the true basis for today's decision remains a mystery--even to the majority that wrought it.
You can access Judge Smith's dissent directly at this link.
Posted at 22:03 by Howard Bashman



The wire services are reporting: Now available from The Associated Press are articles headlined "Guantanamo Tribunals Pick Up the Pace"; "OKC Bombing Judge to Hear Bryant Lawsuit"; "Court Rules Against Anti-Abortion Group"; and "Courthouse 'Ghost' Identified As Insect."

Reuters, meanwhile, reports that "Court Rules Against Homeless Over Getting Mail."
Posted at 18:05 by Howard Bashman



"N.H. abortion law heard in federal appeals court": This article appeared in Tuesday's edition of Foster's Daily Democrat. And last Saturday, The Concord Monitor reported that "Parental notification law debated in court; Challenge focuses on health exception."
Posted at 18:03 by Howard Bashman



"State privacy law challenged by U.S.; Costs, uniformity cited in argument": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "The Bush administration asked a federal appeals court Wednesday to overturn California's financial privacy law, which allows customers to prevent banks and other financial institutions from sharing their personal information with affiliated companies."
Posted at 17:58 by Howard Bashman



"Remote Pitcairn Islanders Ordered to Give Up Guns": Reuters reports here that "Descendants of English mutineers living on remote Pitcairn Island in the South Pacific have been ordered to surrender their guns amid fears that a trial for alleged child sex offences could lead to violence. Tiny Pitcairn has a population of 45 people, who have about 20 guns between them. The deadline for them to surrender their weapons is Sept. 7." And The New Zealand Herald's Web site reports that "Pitcairn Islanders seek trial delay to go to Privy Council."
Posted at 17:51 by Howard Bashman



"N.J. governor out of closet, and job; 'I am a gay American'": The New York Daily News offers this breaking news. And the Web site NJ.com, which hosts The Newark Star-Ledger and other major New Jersey newspapers, offers a report from The Associated Press headlined "New Jersey governor announces his resignation; acknowledges he had affair with another man."

Update: The New York Times provides a news update headlined "McGreevey Describes 'Intensely Personal Decision' in Speech" and offers this transcript of McGreevey's speech. The Philadelphia Inquirer, meanwhile, offers a news update headlined "NJ governor resigns, citing gay affair; McGreevey, saying secret extramarital affair with man would make continuing as N.J. governor untenable, resigns."
Posted at 16:41 by Howard Bashman



In news from Colorado: The Associated Press reports that "Attorneys File Appeal In Lesbian Joint Custody Case."
Posted at 15:57 by Howard Bashman



Porn in prison: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit issued a decision that begins:
A federal prisoner at the low-security correctional institution in Allenwood, Pennsylvania brought this action pursuant to 28 U.S.C. sec. 1331, challenging a Congressional ban on the use of federal funds to distribute certain sexually explicit material to prisoners, along with its implementing regulation. The District Court rejected plaintiff's argument that the ban violates the First Amendment and dismissed his complaint, finding the prohibition to be reasonably related to the legitimate penological goal of prisoner rehabilitation. Because we find that the District Court erred in resolving the constitutional issue without an adequate factual basis, we will reverse and remand for further proceedings consistent with this opinion.
In so ruling, the Third Circuit creates a circuit split, because another federal appellate court previously upheld the legality of this ban on the record that the Third Circuit today found inadequate.

Longtime readers may recall that the Third Circuit has something of a pro-First Amendment bent in prisoner cases. Back on July 24, 2002, I had a post entitled "Prison is so boring without the R and NC-17 movies" summarizing this Third Circuit ruling issued on that date.
Posted at 15:03 by Howard Bashman



"State high court invalidates SF's same-sex marriages; By 5-2 vote, justices rule against Newsom, say mayor went too far": Bob Egelko of The San Francisco Chronicle provides this news update. The Los Angeles Times provides a news update headlined "Supreme Court Voids San Francisco's Gay Marriages." And The New York Times provides a news update headlined "California Supreme Court Voids Gay Marriages in San Francisco."
Posted at 14:46 by Howard Bashman



Breaking news parody: The blog "ScrappleFace" is reporting that "San Francisco Mayor Annuls State Supreme Court" and "Gay Couples Split After Court Annuls Marriages."
Posted at 14:33 by Howard Bashman



Who says? The Washington Post today contains an article headlined "Lethal Injection by Virginia Not Cruel, U.S. Supreme Court Says." What the U.S. Supreme Court actually said yesterday, in an order that you can access here, was: "The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Fourth Circuit on December 17, 2003, presented to the Chief Justice and by him referred to the Court, is granted." Whether The Post's headline makes appropriate use of the word "says" is open to debate, but I think the headline would have been more accurate had it said something else.
Posted at 14:21 by Howard Bashman



"Court Opens Columbine Killers' Diaries": The Associated Press provides this report on a ruling that the Colorado Court of Appeals issued today.
Posted at 14:15 by Howard Bashman



Ninth Circuit delivers losses to the hairless and the homeless: The U.S. Court of Appeals for the Ninth Circuit issued two interesting decisions today.

In a ruling that you can access here, the court rejected the claim of a Native American prison inmate that the California Department of Corrections' hair length policy infringes on the free exercise of his Native American religious beliefs in violation of federal law.

And in a separate ruling, which you can access here, the court considered whether federal law requires the U.S. Postal Service to make it easier for homeless people to receive mail that is intended for them.
Posted at 13:30 by Howard Bashman



"Until the Supreme Court rules otherwise, the courts of this Circuit will continue fully to apply the Guidelines": A three-judge panel of the U.S. Court of Appeals for the Second Circuit -- in a per curiam opinion issued today that was circulated before filing to all active judges serving on that court -- has so ordered with respect to the U.S. Sentencing Guidelines in the aftermath of the U.S. Supreme Court's ruling in Blakely v. Washington.
Posted at 13:11 by Howard Bashman



BREAKING NEWS -- Supreme Court of California declares same-sex marriages performed in San Francisco "null and void" from their inception: You can access today's ruling, which issued slightly earlier than expected, at this link (114-page PDF document). The vote on declaring previously performed marriages void was 5-2; the court was unanimous in holding that the Mayor of San Francisco lacks the power going forward to allow same-sex couples to marry in violation of existing California law. As a small consolation, same-sex couples whose marriages are dissolved as a result of today's ruling are entitled to a refund, upon request, of all marriage-related fees that they have paid.

If the court's copy of the opinion becomes inaccessible due to excess traffic, a copy of the opinion can also be accessed at this link.

In early news coverage, David Kravets of The Associated Press reports that "Calif. Court Voids S.F. Same-Sex Marriages." And Reuters reports that "Calif. Top Court Annuls San Francisco Gay Marriages."
Posted at 12:58 by Howard Bashman



"Wiccan servicepeople fight for freedom, for foreigners and within the military": This article appears today in The Contra Costa Times.
Posted at 12:18 by Howard Bashman



"Tapes of Lovers' 'Embarrassing' Calls Played at Peterson Trial; Jury hears baby talk secretly recorded by the defendant's former girlfriend": The Los Angeles Times contains this article today. The San Francisco Chronicle contains articles headlined "Husband sounds like love-struck teenager in tapes; Jury hears some of hundreds of calls recorded by ex-lover" and "Holding news conferences to announce nothing, Gloria Allred champions her clients' right to privacy" along with an editorial entitled "Love, betrayal, justice." The San Jose Mercury News contains an article headlined "With wife missing, calls to secret lover; Peterson said favorite movie was 'The Shining.'" The Contra Costa Times reports that "Ex-mistress' taped phone calls played in court." The Modesto Bee reports that "Taped chats paint picture" and offers links to transcripts of the telephone recordings. The San Mateo County Times reports that "Jury hears tapes of Peterson's calls to Amber." And USA Today reports that "Peterson calls reveal lies to former mistress; He pursued romance during search for wife."
Posted at 11:11 by Howard Bashman



When an elementary school places flyers from community organizations advertising religious activities into students' school mailboxes, the school does not violate the Establishment Clause, unanimous three-judge Sixth Circuit panel holds: You can access today's ruling of the U.S. Court of Appeals for the Sixth Circuit at this link. In so ruling, the appellate court overturned a federal district court's injunction that had prohibited the elementary school from distributing flyers that advertised religious activities.
Posted at 10:56 by Howard Bashman



"Trustee defies court, chairman with prayer": The Times and Democrat of Orangeburg, South Carolina today contains an article that begins, "Defying both a federal court ruling and his board chairman's instructions, the Rev. E.T. Jones offered a public prayer in Jesus' name at Tuesday's meeting of the Orangeburg Consolidated School District 5 Board of Trustees."
Posted at 10:45 by Howard Bashman



"State group pressing case against McCain-Feingold": This article appears today in The Milwaukee Journal-Sentinel.
Posted at 10:41 by Howard Bashman



"Tyranny in the Name of Freedom": Guest columnist Dahlia Lithwick has this op-ed today in The New York Times.
Posted at 10:36 by Howard Bashman



"Navy brig may free 'enemy combatant'; Hamdi's lawyer asks for time to make deal": The Charleston Post and Courier, currently Yaser Esam Hamdi's hometown newspaper, contains this report today. The Virginian-Pilot reports today that "U.S. citizen who fought with Taliban may be let go." USA Today reports that "'Enemy combatant' may be released; U.S. citizen caught fighting for Taliban." And The Washington Post today contains an editorial entitled "The Hamdi Back Flip." Earlier this morning, I collected additional coverage of this news in a post that you can access here.
Posted at 10:27 by Howard Bashman



"County to appeal Bible ruling; Courthouse has been ordered to remove the display in 10 days": This article appears today in The Houston Chronicle. You can access Tuesday's ruling of the U.S. District Court for the Southern District of Texas at this link.
Posted at 10:11 by Howard Bashman



Llama llawsuit: The Courier of Russellville, Arkansas reports today that "Mistrial ordered in llama lawsuit."
Posted at 10:09 by Howard Bashman



"Court rules today on S.F. gay marriage; City's authority, not constitutionality, is issue to be decided": Josh Richman has this article today in The Oakland Tribune.
Posted at 10:04 by Howard Bashman



"Federal Courts Face Budgetary Crisis": NPR's Nina Totenberg had this lengthy report (eight minutes and thirty seconds; Real Player required) on today's broadcast of "Morning Edition."
Posted at 09:41 by Howard Bashman



"Courthouse form follows function": The Seattle Times today contains this article, along with a related item headlined "Some local courthouse decisions historic." As I noted here on Monday, Seattle's new federal courthouse is scheduled to open next week.
Posted at 08:42 by Howard Bashman



"Teenager to die for murdering two neighbors; Jury not swayed by mom's plea for mercy in killing of Baytown couple": This article appears today in The Houston Chronicle.
Posted at 07:15 by Howard Bashman



"U.S. Nears Deal to Free Enemy Combatant Hamdi; American Citizen Who Was Captured in Afghanistan Has Been Held Since 2001 Without Being Charged": The Washington Post today contains this article. David G. Savage of The Los Angeles Times reports that "'Enemy Combatant' May Soon Be Freed; Officials are in talks to send the U.S.-born detainee to Saudi Arabia after his legal victory." And The Daily Press of Hampton Roads, Virginia reports that "American detainee could see freedom; Lawyers are negotiating the release from federal custody of a man with links to the Taliban."
Posted at 07:09 by Howard Bashman



"Either/or sentences urged; Supreme Court has yet to clarify decision": This article appears today in The Cincinnati Enquirer. And The Detroit Free Press today contains an editorial entitled "Prison Sentences: State Supreme Court ruling needlessly hasty."
Posted at 07:06 by Howard Bashman



"Military abortion debate: Critics say it's time to lift ban on procedure at military hospitals as scores of soldiers become pregnant while serving overseas." Newsday contains this article today.
Posted at 07:01 by Howard Bashman



"Bible story: If the King James Version displayed outside the Harris County Civil Courts building is not to promote religion, its impending absence should engender no religious controversy." This editorial appears today in The Houston Chronicle. You can now access online at this link Tuesday's decision of the U.S. District Court for the Southern District of Texas ordering removal of the display.
Posted at 06:53 by Howard Bashman



"Anxious gay couples await ruling; Court decision today on S.F. weddings": This article appears today in The San Francisco Chronicle. The Supreme Court of California is scheduled to issue its ruling in the same-sex marriage cases at 10 a.m. pacific time. Stay tuned for complete coverage.
Posted at 06:41 by Howard Bashman



Wednesday, August 11, 2004
In news from Chicago: Today's issue of The Chicago Sun-Times reports that "No bond for suspect in Dirksen Building plot" and "Hale can represent himself at sentencing." The Chicago Tribune, meanwhile, reports today that "Suspect denied bail in court bomb case" and "Judge lets Hale be own lawyer."
Posted at 23:51 by Howard Bashman



"Haidl's Bail Terms to Be Tightened; A judge plans to restrict the activities of the gang-rape defendant awaiting retrial, who also faces new charges of sex with a minor": Claire Luna has this article today in The Los Angeles Times. And The Orange County Register reports today that "Judge will limit Haidl's activity; He denies request to revoke bail, but says he'll order restrictions on teen awaiting trial in alleged gang rape."
Posted at 23:48 by Howard Bashman



In today's edition of The New York Times: An article reports that "Pataki Introduces Bill to Restore Death Penalty." In other regional news, "New Trial Ordered for Teacher Convicted of Sex With 3 Students." And an editorial is entitled "Journalists Face Jail Time."
Posted at 23:45 by Howard Bashman



"Justices: Fatal crash suit juries cannot be told of ability to pay." The Newark Star-Ledger today contains this article reporting on a ruling that the Supreme Court of New Jersey issued yesterday.
Posted at 23:35 by Howard Bashman



"Cianci loses bid to void his conviction; By a 2-1 vote, the federal appeals court judges rule that there was enough evidence to find the ex-mayor of Providence guilty": This article appears today in The Providence Journal.
Posted at 23:28 by Howard Bashman



"Judge tells of depression, suicide attempt": This article appears today in The Grand Rapids Press. In an odd coincidence, the very same judge was in the news just the other day in an article headlined "Judge sets rules for annual 'alternative lifestyle picnic.'"
Posted at 23:16 by Howard Bashman



Rehearing granted means rehearing denied: Yesterday, The Associated Press reported from Cincinnati that "Appeals court to reconsider Guernsey County death penalty case." But that news turns out to have been all wrong, as reported by The AP today in an article headlined "Court clerk's mistake gives Ohio wrong information on a ruling."
Posted at 23:05 by Howard Bashman



"Death Benefits Granted in Autoerotic Asphyxiation Case; Majority had ruled that death was not covered by policy": This article is available online tonight via law.com.
Posted at 23:02 by Howard Bashman



"DA appeals evidence ruling": The Vail Daily News offers a news update that begins, "Prosecutors in the Kobe Bryant rape case say the alleged victim’s sexual activity 72 hours before her rape exam is irrelevant and are asking the Colorado Supreme Court to overturn the judge’s rape shield ruling to include that evidence in the trial."
Posted at 23:00 by Howard Bashman



"Catholic attorney draws on faith during nomination process": The Catholic News Service provides this report that's all about newly-confirmed U.S. District Judge J. Leon Holmes.
Posted at 22:47 by Howard Bashman



"Blakely seeking change of venue; Attorney argues murder-solicitation case should be tried in Spokane County": This article appears today in The Columbia Basin Herald. And in somewhat related news, The Charleston Post and Courier reports today that "Judge gives defendants 3 sentences; Backup sentences cover bases as court decision is awaited."
Posted at 22:12 by Howard Bashman



"Jury gives death to elderly couple's young killer": The Houston Chronicle provides this news update, which reports on a Texas jury's decision this morning to sentence a murderer who killed at the age of 17 to the death penalty. Only in the unlikely event that both Justices Sandra Day O'Connor and Anthony M. Kennedy adhere to their previously expressed views that imposing the death penalty on offenders who kill at the age of 17 is constitutional will the sentence have even a chance of being carried out someday.
Posted at 21:22 by Howard Bashman



Yaser Esam Hamdi to be freed? The Associated Press reports here that "A U.S. citizen captured on the Afghanistan battlefield might soon be allowed to walk free after three years in custody, bringing an end to one of the Bush administration's longest and hardest-fought legal battles to arise from the war on terrorism."
Posted at 21:20 by Howard Bashman



"Sudanese Drug Firm Can't Sue U.S. Over 1998 Attack": James Vicini of Reuters provides this report on today's ruling of the U.S. Court of Appeals for the Federal Circuit.
Posted at 17:49 by Howard Bashman



"Calif. High Court to Rule on Gay Marriage": The Associated Press provides this report, which is in accord with the news I originally delivered here last night. The Supreme Court of California posts its decisions online at 10 a.m. pacific time.
Posted at 17:46 by Howard Bashman



Credit union argues that there's no better time to quit smoking than in conjunction with a Chapter 13 bankruptcy proceeding: On appeal, the credit union argued that instead of spending lots of money on cigarettes, which can prove quite harmful to one's health, the debtor should take the money and devote it to repaying her debts. The U.S. Court of Appeals for the First Circuit, in an opinion issued today, holds that the credit union engaged in some self-destructive conduct of its own, by failing to raise this precise argument while the case was pending below.
Posted at 16:47 by Howard Bashman



Additional Kobe Bryant case documents: Via FindLaw, you can access at this link the civil complaint filed yesterday by the Colorado woman who alleges that Kobe Bryant raped her.

And via the Web site of The Vail Daily News, you can access what appear to be the entire redacted transcripts of the June 21, 2004 and the June 22, 2004 in camera hearings in the criminal case. It was the press's desire to publish these accidentally released transcripts that recently led to litigation that resulted in an "Opinion in Chambers" from U.S. Supreme Court Justice Stephen G. Breyer.
Posted at 15:22 by Howard Bashman



"Prosecutors seek delay in Bryant trial": The Denver Post provides this news update concerning a motion for continuance filed yesterday. And The New York Times provides a news update headlined "Prosecutors Ask for Delay in Case Against Kobe Bryant."
Posted at 15:10 by Howard Bashman



"Supreme Court Lifts Stay of Va. Execution": The Associated Press reports here that "The U.S. Supreme Court voted 5-4 Wednesday to allow Virginia to execute a man who claimed putting him to death by injection would be unconstitutionally cruel."
Posted at 13:43 by Howard Bashman



Attempt to solve the dilemma of how during winter to bring fresher, tastier tomatoes to Americans who live in the northern part of the Nation gives rise to case of first impression on the scope of the Foreign Trade Antitrust Improvements Act: Today a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued this ruling. Senior Third Circuit Judge Ruggero J. Aldisert, sitting by designation, issued a dissenting opinion that begins:
This is a case of first impression. The panel is unanimous in agreeing that this appeal requires us to interpret critical language in the Foreign Trade Antitrust Improvements Act (FTAIA or "Act" ), 15 U.S.C. sec. 6a (1994). We must express a judicial interpretation to a single word, "direct," in the FTAIA's provision of "direct, substantial, and reasonably foreseeable effect" on United States trade or commerce when foreign activity is involved. The flash point of controversy, however, is whether the word "direct" in the FTAIA is a new dimension added to traditional antitrust law that involves trade or commerce with foreign nations, as the majority concludes, as did the district court, or, as urged by the government in this appeal, is merely a codification of antitrust law in place prior to the enactment of FTAIA. I agree with the government's interpretation, and accordingly, respectfully dissent. I would reverse the judgment of the district court.
Because the federal government finds itself on the losing end of this case, it will be interesting to see whether it seeks U.S. Supreme Court review. Generally speaking, cases of first impression are not likely candidates for cert. to be granted, but the chances of obtaining review greatly increase when it's the federal government that is seeking review.
Posted at 13:29 by Howard Bashman



Urine trouble: A unanimous three-judge panel of the U.S. Court of Appeals for the Federal Circuit today affirmed a decision of the United States Patent and Trademark Office Board of Patent Appeals and Interferences that upheld the rejection of a patent application for "two specific proteins isolated from human urine that, among other things, selectively inhibit the cytotoxic effect of tumor necrosis factor." To read today's decision -- which turns on whether these urine components have been adequately described (because, obviously, when a description of urine is at issue, the more detail, the better) -- simply click here.
Posted at 12:19 by Howard Bashman



"Medical pot advocate celebrates; Epis reunites with partner, daughter at capital rally marking release from prison": This article appears today in The Sacramento Bee.
Posted at 12:02 by Howard Bashman



"When Federal Appellate Judges Marry One Another": The August 2004 installment of my monthly appellate column, published on Monday of this week in The Legal Intelligencer, is now available online at this link.
Posted at 11:55 by Howard Bashman



U.S. Court of Appeals for the Federal Circuit affirms dismissal of lawsuit seeking compensation for U.S. military's destruction of pharmaceutical plant in The Sudan in retaliation for al-Qaeda's bombings of U.S. Embassies in Africa: You can access today's ruling -- which concludes, "For the foregoing reasons, the decision of the Court of Federal Claims to dismiss the complaint because it raises a nonjusticiable political question is affirmed" -- at this link.
Posted at 11:22 by Howard Bashman



"Why should judges not disclose conflicts of interest?" That's the subject of the "Today's Debate" feature today in USA Today. The newspaper's own editorial begins, "Top federal prosecutors, members of Congress and even the president must make their personal finances public every year. But anyone looking for the same information on a federal judge is in for a long wait and big surprise." Arguing the opposing side is District Judge Mary M. Lisi of the U.S. District Court for the District of Rhode Island. She chairs the Committee on Financial Disclosure of the Judicial Conference of the United States, and her op-ed is entitled "Consider security concerns."

The last time that I wrote in detail about these issues was in February 2001, when that month's installment of my monthly appellate column published in The Legal Intelligencer was entitled "A Closer Look: The Recusal Policies of Local Appellate Judges." Here are the concluding paragraphs of that essay:
David Sellers, a spokesman for the Administrative Office of the United States Courts, was quoted in September of 1999 as stating that the federal law mandating disqualification for financial conflict of interest "is very unforgiving." That remark came after a public interest group known as Community Rights Counsel issued a report concluding that eight federal appellate judges had taken part during 1997 in eighteen cases involving litigants in which the judges, their spouses or trusts they managed held stock. Among the judges were some of the federal judiciary's shining stars, including Third Circuit Chief Judge Edward R. Becker, Ninth Circuit Judge Alex Kozinski, First Circuit Judge Bruce M. Selya, and D.C. Circuit Judge Laurence H. Silberman.

The report spawned a front-page article in the September 13, 1999 issue of The Washington Post. It followed The Kansas City Star's publication in April of 1998 of a series of articles reporting that various federal judges in Kansas and Missouri had presided over cases involving parties in which the judges held a financial interest, in violation of the federal law requiring recusal.

The studies reported in The Washington Post and The Kansas City Star were performed using the financial disclosure forms that all federal judges must file annually pursuant to the Ethics in Government Act of 1978. See Duplantier v. United States, 606 F.2d 654 (5th Cir. 1979) (upholding constitutionality of the Act's disclosure requirements as applicable to federal judges), cert. denied, 449 U.S. 1076 (1981). According to The Kansas City Star, only seventeen law firms sought to review the financial disclosure reports of federal judges in 1997, perhaps because the judges whose reports are requested receive notice of the requester's name, address, occupation and employer.

In September of 1999, the Web site APBnews.com requested copies of the 1998 financial disclosure reports for all 1,600 federal judges in order to post the reports on the Internet. Three months later, the judge chairing the Financial Disclosure Committee of the Judicial Conference of the United States denied the request, fearing that online disclosure could result in physical harm to the judges and their families. This led APBnews.com to sue the Judicial Conference on the theory that refusing to release the reports to an online news organization, after releasing them to other organizations, violated the First Amendment.

On February 15, 2000, Chief Justice Rehnquist issued a memorandum to the Judicial Conference urging release of the reports. On March 14, 2000, the Judicial Conference voted sixteen to eight to release the reports to APBnews.com, but federal judges would first be given an opportunity to redact any information that could pose a safety threat to themselves or their families.

In July of 2000, APBnews.com filed for bankruptcy. Two months later the company was sold to a new owner. It is unclear whether APBnews.com will complete the online posting of all federal judges' financial disclosure reports. The only disclosure forms now available from APBnews.com are the forms of all nine U.S. Supreme Court Justices and the forms of fifteen federal circuit and district judges whose last names begin with "A." The lone Third Circuit Judge whose financial report appears online there is Senior Circuit Judge Ruggero J. Aldisert.

Someday the financial disclosure reports of all federal judges likely will appear online (perhaps at the Web site of The Washington Post, which itself has recently requested all such reports). Maybe then the recusal oversights reflected in the studies of the Community Rights Counsel and The Kansas City Star will be a thing of the past, because litigants will be almost as well situated as federal judges to determine whether recusal due to a financial conflict of interest is required.
In hindsight, it appears that I was overly optimistic. As of mid-2004, these financial disclosure reports have not become available online. The Web site of APBnews.com is defunct. And just last week, The Washington Post reported that "U.S. Judges Getting Disclosure Data Deleted; GAO Cites 661 Requests to Withhold Information From Ethics Act Reports" and provided this sample of an actual, redacted judicial financial disclosure report.
Posted at 10:30 by Howard Bashman



"Lab offers free DNA test of twins in rape case": Yesterday's issue of The Grand Rapids Press contained this article, which reported that "Grand Rapids police and prosecutors had given up on the possibility that today's science could pinpoint which twin is guilty, saying it was too uncertain and could cost more than $100,000."
Posted at 10:28 by Howard Bashman



"Twist in Bryant Rape Case as Accuser Files Lawsuit": This article appears today in The New York Times. The Washington Post reports that "Civil Suit Filed Against Bryant; Action Follows Setbacks for Prosecutors in Case of Alleged Rape." USA Today reports that "Bryant accuser files lawsuit in civil court; Seeks at least $75,000." The Los Angeles Times reports that "Bryant's Accuser Files Civil Suit; Experts say the move hurts criminal sexual assault case against Laker star; She claims he has history of 'similar acts.'" The Denver Post reports that "Bryant accuser files lawsuit; Criminal case still on track." And The Rocky Mountain News reports that "Bryant's accuser files civil suit; Observers say move could mean criminal trial won't be held"; "Suit puts trial in doubt; Experts question it, but DA says Bryant case will proceed"; and "Civil suit likely to favor alleged victim, analysts say."
Posted at 10:21 by Howard Bashman



The Richmond Times-Dispatch is reporting: Today's newspaper contains articles headlined "Law on juvenile nudists upheld; Judge dismisses suit against requirements for parent or guardian"; "Falwell wins Web site ruling; Internet site opposing pastor's views on gays must change its name"; and "Children or cigarettes? Woman accused of defying a judge's order that she not smoke around her children."
Posted at 10:10 by Howard Bashman



"Key Prosecution Witness Testifies in Laci Peterson Trial": This article appears today in The New York Times. The Washington Post reports that "Mistress Says Peterson Lied About Marriage; Prosecutors Play Secret Tapes." USA Today reports that "Testimony recounts trysts with Peterson; Prosecutors attempt to establish motive." The Los Angeles Times reports that "Peterson's Ex-Lover Testifies; Amber Frey says the murder suspect was planning a life with her at the same time searchers were looking for his missing pregnant wife." The San Francisco Chronicle reports that "Ex-lover tells of affair based on lies; First date included champagne, dinner, karaoke and sex." The San Jose Mercury News reports that "Ex-mistress tells jury of a love spun from lies; Taking stand for first time, eagerly awaited witness describes manipulation masked by champagne, roses" and "Ex-lover's testimony draws crush of visitors," and the newspaper also offers this lengthy transcript (PDF) of recorded telephone activity. The Contra Costa Times reports that "Peterson's ex-mistress testifies, recounts affair." The Modesto Bee reports that "Frey describes romance"; "Details of call to lover bared in court transcript"; and "Frey appearance draws crowd." Finally, The San Mateo County Times reports that "Frey shares intimate details; Prosecution's star witness completes first day on stand."
Posted at 09:52 by Howard Bashman



"Mize, who heard Newdow custody case, to lead judges": The Sacramento Bee today contains an article that begins, "Sacramento Superior Court Judge James Mize begins a one-year term on Oct. 10 as president of the California Judges Association."
Posted at 09:48 by Howard Bashman



"ICLU sues city over Confederate flag ban": The Star Press of Muncie, Indiana today contains an article that begins, "The Indiana Civil Liberties Union is challenging the legality of Mayor Dan Canan's ban on Confederate battle flags and other flags at the city's campgrounds at Prairie Creek Reservoir."
Posted at 09:31 by Howard Bashman



"Power grab: By passing a ban on judicial review of state laws concerning recognition of gay marriages, the U.S. House showed disregard for the separation of powers." This editorial appears today in The Houston Chronicle.
Posted at 08:41 by Howard Bashman



"Alcohol ads allowed in college newspapers": The Pittsburgh Post-Gazette today contains an article which reports that "The state's ban on placing paid alcohol advertising in college newspapers appears dead. The state attorney general's office said yesterday it will not challenge a ruling from the 3rd U.S. Circuit Court of Appeals that said the law, intended to curb underage drinking, was unconstitutional." You can learn more about the interesting procedural history behind the Third Circuit's recent ruling in a post you can access here.
Posted at 08:32 by Howard Bashman



"Challenging Lawyers' Training, and Finding Some Ethics": This article appears today in The New York Times.
Posted at 07:13 by Howard Bashman



"Costly grudge in the Senate: Levin-Stabenow blocking of votes on judges is hurting Michigan." This editorial appears today in The Grand Rapids Press. And The Philadelphia Daily News today contains an editorial entitled "The quality of the judiciary is at stake: Want good judges? So does Kerry."
Posted at 06:57 by Howard Bashman



"State justices to rule on Newsom, licenses": The Contra Costa Times today contains an article that begins, "The California Supreme Court will rule Thursday on whether San Francisco Mayor Gavin Newsom had the right to issue marriage licenses to thousands of same-sex couples earlier this year."
Posted at 06:55 by Howard Bashman



"Bible display must go, judge decrees; Harris County is given 10 days to remove monument outside courthouse": The Houston Chronicle contains this article today.
Posted at 06:54 by Howard Bashman



"High-profile sentencings delayed; Federal judges in Delaware await clarification of recent Supreme Court decision": This article appears today in The News Journal of Wilmington, Delaware. Mary Flood of The Houston Chronicle reports today that "Enron Barge trial is put off a month; Reindictments of six mean more complicated case." The St. Paul Pioneer Press reports today that "Batterer's sentence could be reviewed; Appeals court cites U.S. justices' decision." And yesterday, columnist Debra J. Saunders of The San Francisco Chronicle had an essay entitled "Trial by jury."
Posted at 06:39 by Howard Bashman



Tuesday, August 10, 2004
In today's issue of The Los Angeles Times: An article reports that "Chemerinsky Leaves Rampart Panel." In other news, "Reporter Questioned in CIA Leak Inquiry; NBC's Tim Russert is interviewed by a prosecutor investigating whether the White House revealed the identity of an operative." Henry Weinstein reports that "DNA Tests Finally Clear Louisiana Man of Murder; Ryan Matthews, who was 17 when the 1997 shooting occurred, had been on death row; No physical evidence linked him to the crime." In regional news, "Ex-Clerk Sentenced in INS File Shredding; The former worker gets probation and house arrest in the case of destroyed immigration documents; He intends to file an appeal." And in news concerning the Kobe Bryant prosecution, "Still Waters May Run Deep: Principals in Bryant case fear jury pool has been tainted, but a sampling of Eagle County, Colo., residents suggests little interest in news reports."
Posted at 23:54 by Howard Bashman



"Nichols says he's sorry; Okla. City bombing conspirator gets life": This article appears today in USA Today.
Posted at 23:51 by Howard Bashman



The Washington Post is reporting: Today's newspaper contains an article headlined "Reporter Held In Contempt in CIA Leak Case." And in other news, "Nichols Seeks Forgiveness for Okla. City Bombing; At Sentencing, He Speaks Publicly for 1st Time."
Posted at 23:45 by Howard Bashman



In today's edition of The New York Times: Adam Liptak reports that "Reporter From Time Is Held in Contempt in C.I.A. Leak Case." In regional news, "Killer Receives Life Sentence After Execution Is Overturned." And in business news, "Tech Company Settled Tax Case Without an Audit."
Posted at 23:39 by Howard Bashman



"Harris County must remove Bible displayed at courthouse": The Houston Chronicle provides this news update.
Posted at 23:32 by Howard Bashman



"Sex harass victims win court ruling; Justices lower bar for lawsuits": The Newark Star-Ledger today contains this article reporting on a ruling that the Supreme Court of New Jersey issued yesterday.
Posted at 23:28 by Howard Bashman



Available online from law.com: An article reports that "Boies' Bid for Massive Class Fails." An article is headlined "2nd Circuit: Lower Court Erred in Releasing Settlement Data." And Shannon P. Duffy reports that "State Grand Jury Probe No Bar to Federal Civil Rights Suit."
Posted at 23:16 by Howard Bashman



Important announcement from the Supreme Court of California: On Thursday, August 12, 2004, at 10 a.m. pacific time, that court will release its ruling in the same-sex marriage cases, which present the issue "Did respondent officials of the City and County of San Francisco exceed the scope of their authority in refusing to enforce the statutory provisions limiting marriage only to a couple comprised of a man and a woman in the absence of a judicial determination that the statutory limitation is unconstitutional?" You can access that court's announcement of its forthcoming opinions at this link (Microsoft Word document).
Posted at 20:16 by Howard Bashman



"I Do? Oh No You Don't: On marriage 'defense,' the right is now speaking loudly, not holding its peace." This article appears in the brand new issue of The Village Voice.
Posted at 16:58 by Howard Bashman



"Medical marijuana activist freed; Bryan James Epis is released from jail as the Supreme Court decides the legality of state-sanctioned cooperatives that grow medicinal pot": The Sacramento Bee today contains this article reporting on an order that the U.S. Court of Appeals for the Ninth Circuit issued yesterday.
Posted at 16:56 by Howard Bashman



U.S. Court of Appeals for the Eleventh Circuit denies motion seeking leave to file post-oral argument, pre-decision brief raising sentencing challenge based on Blakely v. Washington: As today's order demonstrates, the Eleventh Circuit is strictly enforcing the waiver rules that normally apply in appellate litigation. Some other circuits, in contrast, appear to be taking a more lenient approach.
Posted at 16:46 by Howard Bashman



"Plame Leak Case Could End in Supreme Court Standoff": The Web site of Editor & Publisher magazine offers this report.
Posted at 16:09 by Howard Bashman



"Will the American Bar Association Bar Judges as Scout Leaders?" The Web log of Christianity Today magazine offers this post.
Posted at 16:07 by Howard Bashman



"Circumcision completed, despite mom's opposition": The Examiner of Independence, Missouri contains this article today.
Posted at 16:05 by Howard Bashman



"Puerto Rico swears in new chief justice of Supreme Court": The Associated Press provides this report.
Posted at 16:00 by Howard Bashman



"Chaos over sentencing guidelines delays Enron trial": Mary Flood of The Houston Chronicle provides this news update.
Posted at 15:47 by Howard Bashman



"Accuser sues Kobe Bryant": The Denver Post provides this news update.
Posted at 15:42 by Howard Bashman



When good court Web sites go bad: Am I the only person who finds that the D.C. Circuit's redesign of its Web site has made it more difficult to access information? Putting aside the new color scheme -- which I assume someone must have liked -- at the old white-background site (see an example here) a list of newly-issued published opinions appeared on the site's home page. Now, to access opinions, a click-through to another page is required. And a whole bunch of other information was also just one click away at the old home page, whereas now it's not readily apparent where one would find it.
Posted at 15:20 by Howard Bashman



"Judge Allows Va. Law on Teen Nudist Camp": The Associated Press provides this report.
Posted at 15:16 by Howard Bashman



"Cianci conviction upheld": The Providence Journal offers this news update on a ruling (part one here; part two here) that a partially divided three-judge panel of the U.S. Court of Appeals for the First Circuit issued today. The update begins, "A federal Appeals Court today upheld the racketeering conspiracy conviction of former Providence Mayor Vincent A. Cianci." You can learn much more about the criminal charges, trial, and convictions via this link.
Posted at 14:47 by Howard Bashman



"Campaign 2004: Election likely to alter make-up of Supreme Court." Michael McGough has this very interesting article, listing each candidate's likely nominees, today in The Pittsburgh Post-Gazette. And don't miss this accompanying graphic. Of course, the composition of the U.S. Supreme Court could still be the same four years from now.
Posted at 14:30 by Howard Bashman



Unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirms denial of class certification in RICO suit alleging that gaming machine manufacturers and the casino and cruise ship operators that use the machines engaged in a scheme to defraud gamblers: You can access today's ruling at this link. David Boies serves as lead counsel for the plaintiffs.
Posted at 13:31 by Howard Bashman



The wire services are reporting: Reuters reports that "Court Approves Public Shaming of Mail Thief" and "Botswana Proposes More Flogging, Less Jail."

And The Associated Press reports that "Judge Urged to Dismiss Human Rights Case" and "Giggling Drunk Lawyer Delays Hearing."
Posted at 12:08 by Howard Bashman



"Sorry, We're Fresh Out": Associate Justice William W. Bedsworth of California's Fourth District Court of Appeal writes of both politics and food in the brand new installment of his always very funny monthly column.
Posted at 11:24 by Howard Bashman



Lawsuit filed on behalf of former driver for Osama bin Laden to make trans-continental trek: You can access at this link the transfer order entered yesterday in the U.S. District Court for the Western District of Washington.
Posted at 11:14 by Howard Bashman



"Two Rudolph attorneys leave bombing case": This article appears today in The Birmingham News.
Posted at 11:08 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": This morning's broadcast contained segments entitled "Journalists Caught in Legal Fight over Leak"; "Detailing Army Interrogation Techniques"; and "Adult Entertainment Stores Join Supersizing Trend" (Real Player required).
Posted at 11:03 by Howard Bashman



A matter of Prynne-ciple: A reader based in Washington, DC emails:
In his dissent in the fascinating shaming case that you linked to, Judge Hawkins accuses the district judge of trying to make the defendant "a modern day Hester Prin." He means, of course Hester Prynne.
The misspelling that my correspondent notes, found here, appears to have as its origin the 1993 ruling of California's Fifth District Court of Appeal in People v. Hackler, 13 Cal. App. 4th 1049, 1058, 16 Cal. Rptr. 2d 681, 686. In Hackler, the misspelling appears in a quote attributed to the trial judge, and thus the source of the misspelling is most likely a court stenographer. And the misspelling did not escape the notice of the California Court of Appeal justice who wrote the Hackler opinion, as evidenced by the "[sic]" that immediately follows the misspelling. Footnote nine of yesterday's Ninth Circuit majority opinion quotes that precise passage from Hackler and prudently retains the "[sic]." For whatever reason, yesterday's dissent, citing to Hackler, retains the misspelling but omits both quotation marks and the "[sic]." All of which just goes to show that when writing the name of a famous character from literature, it certainly pays to be homophonebic.
Posted at 09:40 by Howard Bashman



"U.S. Loses Ruling in Challenge by S&L; Appeals court upholds 'wounded bank' damages of $381 million to the former GlenFed": This article appears today in The Los Angeles Times.
Posted at 08:43 by Howard Bashman



Search underway for an aboriginal Supreme Court of Canada nominee from the Province of Newfoundland and Labrador: One week ago today, The Toronto Star contained an article headlined "Appoint natives, Ottawa urged; Permanent spot on top court proposed; Lawyers to debate issue in Winnipeg." Today, Joel Rochon and Sakie Tambakos have an op-ed entitled "Give Newfoundland a Supreme Court voice" in The Toronto Globe and Mail. You can learn more about the Canadian Province known as "The Rock" at this link.
Posted at 08:37 by Howard Bashman



"When a Man Dies, Can Children Subsequently Conceived with His Sperm Collect Survivors' Benefits? A Federal Appellate Court Says Yes." FindLaw columnist Joanna Grossman has this essay today.
Posted at 08:34 by Howard Bashman



"Winner in November could determine high court's direction": The Scripps Howard News Service provides this report.
Posted at 08:33 by Howard Bashman



"Court upholds '93 death sentence; Newtowne man's trial was sufficient, a federal court rules": The Richmond Times-Dispatch today contains this article reporting on a ruling that the U.S. Court of Appeals for the Fourth Circuit issued yesterday.
Posted at 08:30 by Howard Bashman



"Doyle touts Supreme Court diversity; His comments indicate he's likely to appoint one of two African-Americans": This article appears today in The Milwaukee Journal Sentinel.
Posted at 08:28 by Howard Bashman



"Despite mother's protest, father has boy circumcised": The Kansas City Star today contains an article that begins, "The father of an almost 3-year-old boy had his son circumcised last week, registering moot at least a portion of a petition before the Missouri Supreme Court."
Posted at 07:14 by Howard Bashman



"Suit involving ex-driver for bin Laden sent to D.C.": This article appears today in The Seattle Times. And The Seattle Post-Intelligencer reports today that "Detainee's case moves from Seattle to D.C."
Posted at 07:07 by Howard Bashman



For shame: Bob Egelko of The San Francisco Chronicle reports that "Shaming OKd as part of sentence; Court upholds thief's wearing 'I stole mail' sign." Howard Mintz of The San Jose Mercury News reports today that "Sentence upheld for convicted thief to face public shame." And Josh Richman of The Tri-Valley Herald reports that "Unusual sentence upheld by court; Supreme Court upholds sandwich board punishment of mail thief."
Posted at 06:51 by Howard Bashman



"Court Says Author Can't Sell His Book on Evading Taxes": This article appears today in The New York Times. And Bob Egelko of The San Francisco Chronicle reports today that "Court OKs banning anti-tax book it calls an ad for fraud; False advertising not constitutionally protected speech."
Posted at 06:40 by Howard Bashman



Monday, August 09, 2004
"2 guilty in crime photo mailing; Image of dead son sent to his mother": The Bangor Daily News on Saturday contained this article. And The Portland Press Herald reported on Saturday that "Killer guilty of harassing victim's kin," while on Friday the newspaper reported that "Grisly note may add to inmates' jail time."
Posted at 23:45 by Howard Bashman



"Trials and Tribulations for Iraqi Judges; They investigate cases but do not preside over them; They're probing, impassioned -- and under threat; They say they won't be deterred": This article appears today in The Los Angeles Times.
Posted at 23:38 by Howard Bashman



"Megan's laws gain new attention; Recent cases spur arrests of released sex offenders who neglect registration": USA Today today contains this article.
Posted at 23:20 by Howard Bashman



"Nudists Fight Law on Youth Camps; Restriction on Children Insults Parents, Some Say": This article will appear in Tuesday's issue of The Washington Post.
Posted at 23:07 by Howard Bashman



Available online from law.com: Jeff Chorney reports that "Green Light Given to 'Scarlet Letter' Theft Sentence." And in other news, "Wal-Mart Suit Will Test Alliance of Public and Private Firms."
Posted at 22:32 by Howard Bashman



"Council to Appeal Federal Ban on Invoking Name of Jesus": Today's broadcast of NPR's "Day to Day" included this report (Real Player required).
Posted at 20:44 by Howard Bashman



The wire services are reporting: The Associated Press reports that "Reporter Held in Contempt in CIA Leak Case"; "Court Rules Fla. Death Row Temps Not Too Hot"; and "Bryant Accuser's Attorneys Criticize Judge." You can also access online the "Text of Terry Nichols' Statement."

Reuters, meanwhile, reports that "FCC Seeks to Lift Stay on Radio Ownership Limits" and "Bryant Accuser's Lawyers Seek End of Gag Order." And an article headlined "US court upholds $381 mln award to Glendale thrift" reports on this ruling that the U.S. Court of Appeals for the Federal Circuit issued today.
Posted at 20:11 by Howard Bashman



Autoerotic asphyxiation: One year and two days ago, a divided three-judge panel of the U.S. Court of Appeals for the Second Circuit held that death due to autoerotic asphyxiation constituted an "intentionally self-inflicted injury" that precluded recovery under a life insurance policy. You can access what was then the majority opinion at this link. My coverage of that ruling from that same date can be accessed here.

Today, the exact same three-judge panel, in the exact same case, withdrew the earlier decision and ruled by a 2-1 margin that autoerotic asphyxiation does not constitute an "intentionally self-inflicted injury" that precludes recovery under the life insurance policy in question. The judge who changed his mind about the proper outcome of the case is Circuit Judge Barrington D. Parker, Jr.

You can access at this link the majority opinion issued today. The author of last year's majority opinion, Senior Circuit Judge Ellsworth Van Graafeiland, dissents in an opinion you can access here. In his dissent, Judge Van Graafeiland writes: "until someone, whose opinion I respect, honestly informs me that as a general proposition, he or she would not hesitate to undergo a session of autoerotic asphyxiation through strangulation, I will not change my mind."

The Second Circuit's ruling on this issue is now in accord with this earlier ruling of the U.S. Court of Appeals for the Ninth Circuit, thereby greatly decreasing any likelihood that the U.S. Supreme Court will agree to decide whether death caused by autoerotic asphyxiation is accidental or purposeful.
Posted at 18:20 by Howard Bashman



The wire services are reporting: Gina Holland of The Associated Press reports that "Largest Law Group Rips U.S. Detentions." And in other news, "Nichols Asks Forgiveness After Sentencing."

James Vicini of Reuters, meanwhile, reports that "Judge Upholds Media Subpoenas in CIA Leak Case." You can the ruling that Chief Judge Thomas F. Hogan of the U.S. District Court for the District of Columbia made public today at this link. And in other news, "Nichols Given Life Sentences for Oklahoma Bombing."
Posted at 15:38 by Howard Bashman



"Appeals Court runoff postponed": The Atlanta Journal-Constitution today contains an article that begins, "On the eve of Tuesday's runoff elections, the Georgia Supreme Court canceled the scheduled vote for an open seat on the Georgia Court of Appeals." And The Associated Press reports here that "The Georgia Supreme Court on Monday canceled Tuesday's scheduled runoff election for a seat on the state Court of Appeals, acting in a lawsuit filed by a losing candidate whose first name was wrong on some ballots."
Posted at 15:32 by Howard Bashman



"Ten Things Not To Say At A Supreme Court Oral Argument": Milbarge of the "Begging The Question" blog offers these thoughts.
Posted at 14:37 by Howard Bashman



"Unbridled court to rule on size of Wal-Mart suit": This article appeared in yesterday's issue of The Arkansas Democrat-Gazette. I'm quoted in the article's final paragraphs.
Posted at 14:03 by Howard Bashman



The human body sustains another defeat in the apparently continuing battle between the human head and the rotor blades of a helicopter: This ruling that a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued today contains the relevant details.
Posted at 13:59 by Howard Bashman



When it comes to death and taxes, resistance is futile: A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today issued an opinion that begins:
Appellants Irwin Schiff, Lawrence Cohen, and Cynthia Nuen contest the constitutionality of a preliminary injunction entered by the District of Nevada enjoining them from promoting their "zero-income" tax theories. Specifically they argue (1) that the injunction is overbroad as it relates to a book they sell, The Federal Mafia, (2) that the requirement that they give the government their customer list violates both their own and their customers' First Amendment and Fourteenth Amendment associational rights, and (3) that the order that they place a copy of the injunction on their websites constitutes illegal compelled speech in violation of the First Amendment. We have jurisdiction pursuant to 28 U.S.C. sec. 1292(a). Because we agree that the government has shown a likelihood of success on the merits and that the provisions of the injunction do not violate the appellants' rights, we affirm.
You can access the complete ruling at this link.
Posted at 13:53 by Howard Bashman



"We must decide the legality of a supervised release condition that requires a convicted mail thief to spend a day standing outside a post office wearing a signboard stating, 'I stole mail. This is my punishment.'" So begins an opinion that a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued today. Circuit Judge Diarmuid F. O'Scannlain wrote the majority opinion, in which Senior Circuit Judge Eugene E. Siler, Jr., visiting from the U.S. Court of Appeals for the Sixth Circuit, joined. The majority upheld the supervised release condition as lawful.

Circuit Judge Michael Daly Hawkins dissented, in an opinion which asserts that "There is precious little federal authority on sentences that include shaming components, perhaps indicative of a recognition that whatever legal justification may be marshaled in support of sentences involving public humiliation, they simply have no place in the majesty of an Article III courtroom."

Given the composition of the panel and the Ninth Circuit as a whole, rehearing en banc in this matter would seem to be a definite possibility.
Posted at 13:31 by Howard Bashman



"Ninth Circuit Rejects Jail Use of Webcams by 'Toughest Sheriff'": Today's issue of The Metropolitan News-Enterprise contains this article.
Posted at 12:12 by Howard Bashman



"Why prohibit gay marriage?" This editorial appears in Tuesday's edition of The Age of Melbourne, Australia.
Posted at 12:09 by Howard Bashman



"Terry Nichols Receives 161 Life Sentences": The Associated Press provides this report from McAlester, Oklahoma.
Posted at 11:33 by Howard Bashman



Access online the Eighth Circuit's order granting rehearing en banc in the case in which a divided three-judge panel had declared the U.S. Sentencing Guidelines unconstitutional in the aftermath of Blakely v. Washington: I first reported here late Friday that the U.S. Court of Appeals for the Eighth Circuit had moments earlier granted rehearing en banc on the court's own motion in United States v. Mooney, thereby vacating the three-judge panel's ruling. Today you can access online at this link the order granting rehearing en banc.
Posted at 11:23 by Howard Bashman



From today's broadcast of NPR's "Morning Edition": This morning's broadcast contained segments entitled "Candidates on the Issues: Abortion" and "Misunderstanding the First Amendment." Real Player is needed to launch these audio clips.
Posted at 11:18 by Howard Bashman



The American Constitution Society launches the official "ACS Blog": You can access this brand new blog -- which today features a post by Law Professor Erwin Chemerinsky on "Judicial Review of the War on Terror" -- at this link. Of course, one should try to avoid confusing the official "ACS Blog" with "The American Constitution Society Weblog."
Posted at 11:11 by Howard Bashman



"RatePhillyJudges.com": Today's edition of The Legal Intelligencer contains an article (subscription only) reporting on a Web site that allows visitors to offer anonymous ratings and comments pertaining to state court trial judges who serve in Philadelphia. The Web site's disclaimer is worth a look, too.
Posted at 09:43 by Howard Bashman



"New home for federal courts set to open downtown": This article appears today in The Seattle Post-Intelligencer. You can learn much more about Seattle's brand new federal courthouse -- which has been designed to resist earthquakes and bomb blasts -- here, here, and here.
Posted at 09:36 by Howard Bashman



"Let judges do their job": The Philadelphia Inquirer today contains an op-ed by Law Professor Erik Luna that begins, "A week ago, the U.S. Supreme Court agreed to hear a pair of cases that may well determine the future of the national government's punishment scheme - also known as the federal sentencing guidelines."
Posted at 09:24 by Howard Bashman



"ABA set to revise the rules for juries; Jurors to play more active role in trials": This article appears in this week's issue of The National Law Journal.
Posted at 09:20 by Howard Bashman



"AP: Superiors Hindered Terror Prosecutors." The Associated Press provides this report.
Posted at 09:16 by Howard Bashman



"12 media groups hit Bryant gag order": This article appeared Saturday in The Denver Post. And in related coverage, last Thursday the newspaper reported that "Judge expands trial's gag order."
Posted at 07:10 by Howard Bashman



"Lee couple hopes to continue fight against gay marriage ban": The Naples Daily News today contains this article.
Posted at 07:05 by Howard Bashman



"Moore always free to worship God": This editorial appears today in The Montgomery Advertiser. And The Daily Herald of McDonough, Georgia today contains an article headlined "Group rallies on Square" that begins, "In a show of solidarity for Henry County commissioners' decision to post a Ten Commandments display in the county courthouse, a southern heritage group held a rally on the town square in McDonough Saturday."
Posted at 07:00 by Howard Bashman



"More high-profile cases bumped to federal court": From Montana, The AP reports here that "Police are increasingly bumping high-profile cases from state to federal courts to guarantee more time behind bars for criminals under stricter federal sentencing guidelines." And The Bozeman Daily Chronicle yesterday contained an article headlined "A crime's a crime? Sometimes."
Posted at 06:58 by Howard Bashman



"Poll finds favorable view of jury duty": This article appears today in The Atlanta Journal-Constitution. Gina Holland of The Associated Press reports that "Poll Finds Americans Don't Mind Jury Duty." And The Richmond Times-Dispatch reports today that "Lawyer takes ABA helm."
Posted at 06:38 by Howard Bashman



Sunday, August 08, 2004
In news from Carolina Shores, North Carolina: The Sun News of Myrtle Beach, South Carolina reported last Wednesday that "Limits on tattoo, piercing businesses OK'd; Town classifies 3 groups as adult establishments." On Thursday, the newspaper reported that "Official wants club labeled nuisance." And today, the newspaper contains an editorial entitled "Will 'Adult' Ploy Work? Shores' zoning move clashes with high court."
Posted at 23:55 by Howard Bashman



"Education gap back in 'court'": U.S. Supreme Court Justice Stephen G. Breyer presided over the session, The Atlanta Journal-Constitution reports today in an article that you can access here.
Posted at 23:50 by Howard Bashman



In today's edition of The Los Angeles Times: In regional news, "Few D.A.s Use New Power to Try Juveniles as Adults." An article reports that "England's Hearing Stalls on Request for Witnesses; The soldier's defense team wants to show that prisoner abuse in Iraq was approved higher up." An editorial is entitled "Guantanamo Dawdle." And John Eisendrath has an op-ed entitled "Divorced Dads and Fairness."
Posted at 23:46 by Howard Bashman



"The Constitution's voice": This editorial appears today in The Boston Globe.
Posted at 23:44 by Howard Bashman



News reports state that DNA tests fail to exonerate California death row inmate Kevin Cooper: The Los Angeles Times reported Friday that "DNA Tests Don't Help Killer's Plea; Hairs found on bodies do not indicate someone else was involved in 1983 Chino Hills murders; Results are expected at appeals hearing today." And The San Diego Union-Tribune reported yesterday that "Hair tests described as no help to Cooper."
Posted at 22:50 by Howard Bashman



Elsewhere in today's issue of The New York Times: An article reports on "DuPont, Now in the Frying Pan." In other news, "Divorced Parents Move, and Custody Gets Trickier." An article is headlined "Agent Orange, the Next Generation." And in news from Washington State, "Sensing the Eyes of Big Brother, and Pushing Back."
Posted at 22:34 by Howard Bashman



"Gay Marriage vs. American Marriage": Kay S. Hymowitz has this essay in the Summer 2004 issue of City Journal.
Posted at 22:08 by Howard Bashman



Dahlia Lithwick begins her stint as guest columnist for The New York Times: Her op-ed today is entitled "The Shield That Failed." Unlike in connection with her two earlier NYTimes op-eds (see here and here for the abstracts) and the recent review that she wrote for that newspaper's Sunday Book Review, as a guest columnist the newspaper now proudly serves up her official "columnist biography."

Her bio confirms that Jonathan Soglin was correctly declared the winner here in December 2002 of the contest to be the first to correctly identify the federal appellate judge for whom Dahlia had clerked. Soglin's brush with the blogosphere was intoxicating enough that he thereafter became the author of the blog "Criminal Appeal."

The NYTimes, in an effort to avoid seeming too United States-centric, fails to mention in Dahlia's bio that she's a citizen of our fine neighbor to the north. But the bio does contain a very nice new photo of Dahlia, although I think my favorite remains the photograph of her as the Stay Puft Marshmallow Person.
Posted at 21:00 by Howard Bashman



"Making Barbie the free speech girl": Renee A. James has this op-ed today in The Morning Call of Allentown, Pennsylvania. Those wishing to view the "Food Chain Barbie" exhibition can do so by clicking here, here, here, and here. The U.S. Court of Appeals for the Ninth Circuit issued a ruling on this matter in December 2003, and you can access my coverage of that ruling here, here, and here.
Posted at 13:05 by Howard Bashman



The wire services are reporting: Gina Holland of The Associated Press reports that "Lawyers Puzzled by Decline in Jury Trials." And in other news, "Nichols Set to Get Life a Second Time."

Reuters, meanwhile, offers reports headlined "Needed: a Ban on Unsolicited Toe-Licking?" and "Martha Stewart's Judge Opposes Court Cameras."
Posted at 13:00 by Howard Bashman



"Status of same-sex marriages likely to wait in legal limbo; After the Nov. 2 vote on Measure 36, the definition of marriage could be further complicated by appeals": The Oregonian today contains this article, along with an op-ed by columnist Susan Nielsen entitled "Judge not, until you've had to judge gay marriage; Blame personal empathy and the cool rationality of the law, not those crazy activist judges, for the creeping legality of gay marriage."
Posted at 12:57 by Howard Bashman



"Skeleton Case's New Bone of Contention; A fresh legal obstacle emerges for forensic anthropologists in their eight-year fight with Northwest tribes to study a set of 9,300-year-old bones": This article appeared last Monday in The Los Angeles Times.
Posted at 12:55 by Howard Bashman



"Pickering gives Carey graduates advice for future": The Hattiesburg American today contains an article that begins, "Federal Judge Charles Pickering Sr. offered William Carey College graduates Saturday advice on how not to short circuit their lives."
Posted at 12:53 by Howard Bashman



For lovers or executioners? The Richmond Times-Dispatch today contains an article headlined "Virginia has sent 1,369 to death; By fire, rope, gun, needle or electricity, the state has executed most in the U.S."
Posted at 12:50 by Howard Bashman



"Local officials defy prayer ruling; Some leaders still invoke Christ's name during public meetings": The Charleston Post and Courier today contains an article that begins, "Many local government leaders are openly defying a federal court ruling banning religious-specific prayers at meetings soon after an Upstate town council voted to appeal the decision."
Posted at 12:47 by Howard Bashman



In news from Montana: The Great Falls Tribune reports today that "Stealthy Supreme Court race pits nice guy against nice guy." Of course, only one of these two nice guys has been endorsed by Law Professor, and California resident, Eugene Volokh.
Posted at 08:30 by Howard Bashman



"Rally backs Ten Commandments display; McDonough gathering hears of 20-county push": The Atlanta Journal-Constitution contains this article today. And in The St. Petersburg Times, columnist Robyn E. Blumner today has an op-ed entitled "I'm an atheist - so what?"
Posted at 08:24 by Howard Bashman



"Gay-marriage fight heats up after ruling": This article appears today in The Seattle Times.
Posted at 08:17 by Howard Bashman



Saturday, August 07, 2004
"Calif. Lawyer Sues Yahoo Over Message-Board Posts": Reuters provides this report. The Metropolitan News-Enterprise reported yesterday that "Suit Claims Yahoo Fails to Police Abusive Speech." BBC News reports that "Yahoo sued over anonymous abuse; A California lawyer has filed a potential class action lawsuit against the internet search company Yahoo." And Slashdot is hosting a discussion thread entitled "Lawyer Sues Yahoo for Message Board Name-Calling."
Posted at 23:50 by Howard Bashman



"Mistrial results in shift of tactics; Prosecutors decide to drop 15 of the original 24 counts against three teens accused of gang rape on videotape": This article appears today in The Orange County Register. And The Los Angeles Times reports today that "Some Counts Cut for 2nd Rape Trial; Lesser charges dropped against the three teens, whose first case ended in a hung jury; January is probable starting time for the proceedings."
Posted at 23:45 by Howard Bashman



The Los Angeles Times is reporting: Today's newspaper reports that "Bush Opposes 'Legacy' Edge in College Admissions; The president, a Yale graduate like his father, grandfather and daughter, says children of alumni should not get special consideration." And a front page article is headlined "Taking It to Vaccine Court: Parents say mercury in shots caused their children's autism, and they want drug firms to pay; The industry calls its defense rock-solid."
Posted at 23:35 by Howard Bashman



In today's edition of The Washington Post: An article reports that "Bush Hits 'Legacy' College Admissions; President Addresses Minority Journalists." And in other news, "Custody Case Puts Civil Union on Trial; States' Differing Laws Complicate Same-Sex Couple's Fight Over Child."
Posted at 23:33 by Howard Bashman



The New York Times is reporting: In today's newspaper, Neil A. Lewis reports that "Guantanamo Inmate Complains of Threats and Long Isolation." In other news, "Hussein's Judge Takes Risk and Abandons Anonymity." An article reports that "Immigrant Caught in a Terrorism Snare." In other news, "Bush Backs Ending Admission Preferences for Children of Alumni." An article reports that "City to Appeal Ban on Blanket Police Searches." And today's bridge column -- headlined "A Legal Mind Used a Rare Tool; Now She's in the Hall of Fame" -- is about Senior Second Circuit Judge Amalya L. Kearse.
Posted at 22:55 by Howard Bashman



In news from Seattle: The Seattle Post-Intelligencer today reports that "Court blocks cuts in Northwest forests" and yesterday reported that "Gay marriage judge hailed, berated; Downing's favorite e-mail calls him 'stench from the bench.'" The Seattle Times, meanwhile, reports today that "Judge lifts Letourneau no-contact order."
Posted at 22:44 by Howard Bashman



"Ex-cheerleader can keep insurance cash": The Lincoln Journal Star today contains this article reporting on a decision that the Supreme Court of Nebraska issued yesterday.
Posted at 20:43 by Howard Bashman



"RICO law used against Big Tobacco; Potent anti-crime tool is no longer just for taking on mobsters": The Richmond Times-Dispatch contains this article today.
Posted at 20:34 by Howard Bashman



"Letter implying cover-up jolts judicial contest": This article appears today in The Detroit Free Press.
Posted at 20:30 by Howard Bashman



"Sex offender can live and work near school for now, judge rules; He's also allowed to sue as 'John Doe'": The Tennessean today contains this article.
Posted at 19:48 by Howard Bashman



"Judge sets rules for annual 'alternative lifestyle picnic'": This article appears today in The Grand Rapids Press.
Posted at 19:46 by Howard Bashman



Congratulations Mad Dog! On achieving 300 Major League victories.
Posted at 19:40 by Howard Bashman



"Publicity-shy critic at center of storm; Researcher wrote much-cited article on registered partnerships": The San Francisco Chronicle today contains an article that begins, "The work of Stanley Kurtz, an elusive research fellow at the Hoover Institution at Stanford University, is at the center of the white-hot debate over same-sex marriage."
Posted at 15:16 by Howard Bashman



"Napa wine is just that; Court says name only for vintages from valley grapes": Bob Egelko had this article yesterday in The San Francisco Chronicle. The Los Angeles Times reported yesterday that "Napa Vintners Toast California's Justices; The court bars putting a region in a wine's name unless 75% of its grapes are from there." The Napa Valley Register reported yesterday that "Bronco Co. ordered to stop selling wine with Napa labels." And The Sacramento Bee reported yesterday that "Label locales unmasked: The California Supreme Court rules that if a bottle of wine is marked 'Napa,' at least 75 percent of its grapes must be grown there" and today contains an editorial entitled "Napa grown - really; Courts clear up some wine confusion." You can access Thursday's ruling of the Supreme Court of California at this link.
Posted at 15:10 by Howard Bashman



"Appeals court orders new hearing on law banning nude dancing": The Associated Press provides this report on a ruling that the Kentucky Court of Appeals issued yesterday.
Posted at 14:56 by Howard Bashman



"Pleasures remains open while court ruling is appealed": The Decatur Daily today contains an article that begins, "A visit to Pleasures International on Central Parkway Southwest reveals several racks and displays filled with the sort of titillating devices that the 11th U.S. Circuit Court of Appeals prohibited in a July 28 ruling."
Posted at 12:08 by Howard Bashman



Ten Commandments news: The Idaho Statesman reported yesterday that "Coalition to keep monument in city park prepares to sue Boise." And from Tennessee, The Jackson Sun yesterday contained an article headlined "Follow 10 Commandments to Casey Jones."
Posted at 12:05 by Howard Bashman



"Furor over Pledge stance prompts Democrat to quit": This article appeared yesterday in The Washington Times.
Posted at 12:04 by Howard Bashman



"Breyer feels legal profession shouldn't 'duck' ethics questions": Gina Holland of The Associated Press reports here that "Supreme Court Justice Stephen Breyer said Friday that legal leaders must deal with serious questions about judges' ethics without getting distracted by jokes about ducks." The article also notes that "Breyer routinely recuses himself in cases that are handled by his brother, a federal judge in California."
Posted at 12:02 by Howard Bashman



"State's law students get free pass on bar exam; Despite detractors, age-old privilege likely to remain": This article appears today in The Milwaukee Journal-Sentinel.
Posted at 12:01 by Howard Bashman



"What Judges Hide": The Washington Post today contains an editorial that begins, "Like members of Congress and top administration officials, including the president, federal judges must file annual financial disclosure reports." On Thursday, The Post published a related article headlined "U.S. Judges Getting Disclosure Data Deleted; GAO Cites 661 Requests to Withhold Information From Ethics Act Reports."
Posted at 09:55 by Howard Bashman



"Campaign literature law tossed; Judges: Statute banning anonymous distribution violates Constitution." The Las Vegas Review-Journal today contains this report on a decision that the U.S. Court of Appeals for the Ninth Circuit issued yesterday. The Las Vegas Sun reports that "Appeals court strikes down Nevada campaign law." And The Associated Press reports that "Court tosses law barring anonymous fliers." I first noted this ruling yesterday in a post that can be accessed here.
Posted at 09:50 by Howard Bashman



"Court denounces Arpaio's jailcams; Federal panel deems Webcasts 'humiliation,' violation of rights": The Arizona Republic today contains this article reporting on a decision that a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued yesterday. You can access my earlier report on the ruling at this link.
Posted at 09:46 by Howard Bashman



"Sentence ruling disrupts courts": This article appears today in The Boston Globe. The Minneapolis Star Tribune reports today that "Report urges caution on sentencing." The Philadelphia Inquirer reported yesterday that "Former judges, prosecutors decry sentencing guidelines; In a Utah case, 29 urged a judge to declare mandatory minimums unconstitutional." The Baltimore Sun reported yesterday that "Jail term restored in sex sting case; Judge renews order voided after high court decision." The St. Paul Pioneer Press reported yesterday that "Ruling could allow longer sentences to be challenged; Minnesota appeals court cites a Supreme Court ruling in ordering new hearings." The Allentown Morning Call yesterday contained an editorial entitled "It's good that U.S. Supreme Court recognizes sentencing turmoil it created." And on Thursday, The Charleston Daily Mail reported that "Double sentencing required; Sentencing formula in jeopardy due to ruling."
Posted at 09:35 by Howard Bashman



Friday, August 06, 2004
While I am on vacation: During the week of August 23, 2004, Seventh Circuit Judge Richard A. Posner will be guest blogging at Lessig Blog. (Via "Bag and Baggage.")
Posted at 22:40 by Howard Bashman



Available online from law.com: An article headlined "Calif. Justices Buck Bronco's Right to Napa Wine Name" reports on a ruling that the Supreme Court of California issued yesterday. Shannon P. Duffy reports that "Judge Rejects Bid for New Trial in Libel Case Against N.Y. Times; Pharmacy proved defamation but failed to make its case for damages." And in other news, "Neither 'Crawford' nor 'Blakely' Retroactive, Says N.Y. Federal Judge."
Posted at 22:37 by Howard Bashman



The wire services are reporting: Anne Gearan of The Associated Press reports that "Biographer Sees Thomas As Chief Justice." And in other news from The AP, "Decision to Stop Jail Web Cams Upheld"; "ABA May Bar Judges From Anti-Gay Groups"; "Judge Dismisses Condit Libel Lawsuit"; and "Md. Courthouse Employees Hunt Ghost."

Reuters, meanwhile, is reporting that "Court Opposes Jail 'Reality Show' on Web" and "Guantanamo hearings get cool response from inmates."
Posted at 22:30 by Howard Bashman



Fifth Circuit recess appointee issues ruling in case involving racial segregation that may mollify those who have filibustered his nomination: Stuart Buck offers this post on a decision that Fifth Circuit Judge Charles W. Pickering, Sr. issued today.

Back on March 12, 2001, The Legal Intelligencer published an installment of my monthly appellate column titled "Questioning the Constitutionality of Recess Appointments to the Federal Judiciary." In it, I noted:
According to the dissenting opinion in Woodley, concerns similar to those voiced by Professor Hart were realized in 1961 when Griffin Bell and Walter Gewin received recess appointments to the Fifth Circuit. The dissent explains that Judge Bell suggested to Fifth Circuit Chief Judge Tuttle that Judge Gewin should not be assigned to hear sensitive race-related cases because it might cause difficulty for Judge Gewin at his confirmation hearings. In response, Chief Judge Tuttle agreed that the court would not assign any such cases to Judge Bell or Judge Gewin until after their Senate confirmations. Woodley, 751 F.2d at 1023.
Of course, Judges Bell and Gewin were ultimately confirmed to life-tenured positions on the Fifth Circuit. It's difficult to believe that Judge Pickering ever will be, regardless of how he rules on controversial cases.
Posted at 20:16 by Howard Bashman



Newsflash -- confined in a prison facility lacking air conditioning is not the best way to spend one's summer in Florida: But it doesn't amount to cruel and unusual punishment, a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit held today in a decision you can access here. Of course, the Framers of the Constitution didn't have air conditioning.
Posted at 20:10 by Howard Bashman



"Judge lifts no-contact order between Letourneau, Fualaau": The Seattle Times provides a news update that begins, "King County Superior Court Judge Linda Lau, who in 1997 sentenced Mary K. Letourneau to 7 1/2 years in prison, this morning dissolved the no-contact order between Letourneau and the student she was convicted of raping, Vili Fualaau."
Posted at 18:00 by Howard Bashman



Breaking Blakely-related news from the U.S. Court of Appeals for the Eighth Circuit: I am most reliably advised that the Eighth Circuit late today has granted rehearing en banc on the court's own motion in United States v. Mooney, the case in which a divided three-judge panel had declared the U.S. Sentencing Guidelines unconstitutional in the aftermath of Blakely v. Washington. This development does not come as much of a surprise, because the two judges who constituted the panel's majority were both senior circuit judges. You can access my report on the now-vacated panel's ruling, which issued on July 23, 2004, at this link.
Posted at 17:49 by Howard Bashman



"Court nominee battles harm nation, judiciary": This editorial appears today in The Traverse City Record-Eagle. And The Washington Times today contains an op-ed by Manuel A. Miranda entitled "Bush needs to make it clear" that begins, "Just before closing shop until September, Senate Democrats began filibusters on four more circuit court nominees."
Posted at 17:46 by Howard Bashman



Ninth Circuit delivers sad news to those who enjoyed watching online Arizona pretrial detainees via the Maricopa County Madison Street Jail Web cams: Today a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed a federal trial judge's preliminary injunction that prohibits the jail from broadcasting over the Internet the images of pretrial detainees who happen to be present in front of four Web cams located inside that jail. You can access today's ruling at this link.
Posted at 17:30 by Howard Bashman



Learn why Nissan Motor Co. doesn't own "nissan.com": The Ninth Circuit reviews the history of that domain name in this decision issued today.
Posted at 17:25 by Howard Bashman



U.S. Court of Appeals for the Ninth Circuit strikes down Nevada law prohibiting certain anonymous election campaign-related speech: You can access today's ruling at this link.
Posted at 17:18 by Howard Bashman



Thank you: Just arrived back in the office from my trip to Pittsburgh, where earlier today I was part of a panel that addressed the thirteenth annual Conference of Court Public Information Officers on the subject of Web logs. The trip to Pittsburgh reminded me that whenever I venture out to meet and speak with readers of "How Appealing," I am impressed at what a fine group of people I have gotten to know as a result of operating this site. I am honored to have such an amazing audience here, and for that I extend sincere thanks to each and every one of my readers.
Posted at 16:48 by Howard Bashman



Thursday, August 05, 2004
Regular blogging to resume Friday night: I'm about to depart for Pittsburgh, where tomorrow morning I will be part of a panel that will make a presentation at the thirteenth annual Conference of Court Public Information Officers. You can access the agenda here.

On Monday, The Legal Intelligencer will publish the latest installment of my monthly appellate column, which is tentatively titled "When Federal Appellate Judges Marry One Another." I'll post the text of this month's column online next Wednesday.

As always, while I'm away from the Internet, readers are invited to draw decisions and news of interest to my attention via email.
Posted at 10:45 by Howard Bashman



Three-judge panel of the U.S. Court of Appeals for the Sixth Circuit holds that Title VII's bar of discrimination based on "sex" allows a transsexual to assert a claim of sex stereotyping: You can access today's ruling, which discusses the conflicting conclusions courts have reached over whether Title VII protection is available to transsexuals, at this link.
Posted at 09:45 by Howard Bashman



"Judges Vie to Overturn MO Gay Marriage Ban": The blog "ScrappleFace" provides this report.
Posted at 09:44 by Howard Bashman



"Restore Bar Association's judicial role": Nan Aron has this op-ed today in The Atlanta Journal-Constitution.
Posted at 09:42 by Howard Bashman



"Protests don't halt preparation to execute 74-year-old prisoner": This article appears today in The Birmingham News.
Posted at 07:17 by Howard Bashman



"Mandated sentence isn't fair, Cassell told; Brief is filed on behalf of Utahn — per judge's request": The Deseret Morning News contains this article today. The Daily Herald of Everett, Washington reports today that "Prosecutors may soon ask juries for stiffer penalties." The Associated Press reports from Arizona that "Lawyers still struggling with Supreme Court ruling on prisoner sentencing" and from Indiana that "Federal judges urged to halt sentencing; U.S. attorney in northern Indiana wants to wait for the Supreme Court to rule on challenge to guidelines." The Knoxville News Sentinel reports today that "Gang member gets break; Supreme Court ruling favors lesser sentence." From Maine, The Portland Press Herald reports that "Justices to rehear Schofield sentence." The Milwaukee Journal Sentinel reports today that "At sentencing hearing, witnesses paint a picture of two Gary Georges." The Palm Beach Post today contains an editorial entitled "A sentence of confusion." And Newsday contains an editorial entitled "High Court tries, tries again; Has to fix unintended result of fair ruling."
Posted at 07:08 by Howard Bashman



"High-court fight looms after judge backs gay marriage": This article appears today in The Seattle Times, which also reports that "Judge says plaintiffs know what making commitment means." The Seattle Post-Intelligencer reports that "Gay marriage backed; Ruling a major first step, but state top court must weigh in" and "Mixed feelings greet judge's decision." And The Los Angeles Times reports that "Judge Backs Same-Sex Marriage; A Washington state law that bars gay unions is unconstitutional, a lower court rules."
Posted at 07:05 by Howard Bashman



The Washington Post is reporting: In today's newspaper, an article headlined "U.S. Judges Getting Disclosure Data Deleted; GAO Cites 661 Requests to Withhold Information From Ethics Act Reports" begins, "Nearly 600 times in recent years, a judicial committee acting in private has stripped information from reports intended to alert the public to conflicts of interest involving federal judges." And in other news, "Law Experts Condemn U.S. Memos On Torture."
Posted at 07:00 by Howard Bashman



"Moore to students: U.S. legal system has lost its way." This article appears today in The Birmingham News. And The Tennessean reports today that "Touring Ten Commandments spark fervor at Franklin rally; Granite monument from Alabama exhibited by veterans group."
Posted at 06:36 by Howard Bashman



Wednesday, August 04, 2004
"Bush's Good Day in Court": In today's edition of The Washington Post, David B. Rivkin Jr. and Lee A. Casey have an op-ed that begins, "The three 'war-on-terrorism cases' decided by the Supreme Court at the close of its term in June have been portrayed -- especially overseas -- as significant defeats for the Bush administration."
Posted at 23:40 by Howard Bashman



Tigger found not guilty of having fondled thirteen-year-old girl: The Associated Press provides this report from Orlando, Florida.
Posted at 23:37 by Howard Bashman



"Message of Voters in Missouri Against Gay Marriage Leaves Backers Discouraged": This article will appear in Thursday's edition of The New York Times.
Posted at 23:33 by Howard Bashman



Available online from law.com: Jonathan Ringel has an article headlined "The Bombshell in the Clarence Thomas Biography." And in news from California, Jeff Chorney reports that "Entire District Bench Recused in Murder-for-Hire Case."
Posted at 22:25 by Howard Bashman



"State to post Level 3 sex offenders; SJC ruling clears way for Web registry": The Boston Globe today contains this article, along with a related article headlined "US high court paved way for SJC ruling" and an editorial entitled "A check on sex offenders." The Boston Herald, meanwhile, contains an article headlined "Court says state can post pervs' IDs on Web" and an editorial entitled "Look ahead on sex registry." You can access yesterday's ruling of the Supreme Judicial Court of Massachusetts both here and here.
Posted at 22:09 by Howard Bashman



"Statehouse Legislators Work to Ban Gay Marriage": This evening's broadcast of NPR's "All Things Considered" included this report (Real Player required).
Posted at 20:42 by Howard Bashman



"A Sexual Bill of Rights: Bickering over vibrators on the 11th Circuit." Slate has just posted online this jurisprudence essay by Dahlia Lithwick.
Posted at 17:16 by Howard Bashman



Apparently not just anyone can be elected to the Supreme Court of Minnesota: The Associated Press reports here that "Secretary of State Mary Kiffmeyer gave an Inver Grove Heights woman 10 days to prove she is a lawyer in good standing or she'll be removed from the Nov. 2 ballot as the sole challenger to state Supreme Court Justice Helen Meyer." The article continues, "Separately last week, Meyer's campaign asked the Supreme Court to remove Jambois from the ballot, arguing that she is mentally incompetent."
Posted at 16:41 by Howard Bashman



"Diaz trial postponed as lawyers bid for time; Attorneys in federal corruption case say documents received in July will take time to sort through": The Clarion-Ledger of Jackson, Mississippi today contains an article that begins, "The Aug. 16 trial for state Supreme Court Justice Oliver Diaz Jr. and others facing federal corruption charges has been postponed."
Posted at 16:38 by Howard Bashman



"Media drop Bryant lawsuit; Release of edited transcripts ends challenge": This article appears today in The Denver Post. The Rocky Mountain News reports that "Media groups drop plans to appeal publishing ban." And The Los Angeles Times reports that "Supreme Court Appeal Dropped; Media attorneys declare victory one day after the judge in the Bryant case releases transcripts."
Posted at 16:31 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Elderly Death Row Inmate's Appeal Denied" and "Ex-Pupil Seeks Contact With Letourneau."
Posted at 16:25 by Howard Bashman



"Execution Plan Draws Pleas for Killer, Ailing and 74": This article appears today in The Los Angeles Times. Today, in a decision accessible here, a divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit denied a stay of execution in the case.
Posted at 14:48 by Howard Bashman



In news from Washington State: The Seattle Times provides a news update headlined "King County judge rules in favor of same-sex marriage." And The Associated Press reports that "Seattle Judge Rules for Gay Marriages." You can access the ruling at this link.
Posted at 14:19 by Howard Bashman



"Cash-strapped Town Relies on Strip Clubs to Pay Bills": It's not quite as catchy as The New York Post's classic headline "Headless Body in Topless Bar," but this opinion that the U.S. Court of Appeals for the Seventh Circuit issued today makes reference to an article published in April 2003 in The Chicago Tribune bearing the headline that's the title of this post. The town in question is Washington Park, Illinois. Back on June 11, 2003, NPR's "All Things Considered" broadcast a segment entitled "Illinois Town Turns to Strip Clubs to Boost Budget" about the town.
Posted at 13:30 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Four Guantanamo Prisoners Refuse Hearings" and "Bryant Accuser Considering Civil Suit."
Posted at 12:32 by Howard Bashman



"20 questions for the appellate judge" update: Earlier this week, I posted here the August 2004 installment of the "20 questions" interview, which featured Seventh Circuit Judge Frank H. Easterbrook as interviewee. In September 2004, the spotlight will turn to the Chief Justice of Wisconsin, a State that happens to be located within the geographical boundaries of the Seventh Circuit.

Judge Easterbrook's interview demonstrated once again that the readers of "How Appealing" are the source of some of the best questions asked in these written interviews. Those readers who wish to suggest questions or topics for inquiry to be posed to September 2004's interviewee, Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin, are invited to send me an email setting forth the questions or topics.

And if any federal or state appellate judges wish to volunteer to serve as an interviewee in the "20 questions for the appellate judge" feature, the next opening is for the interview to be published in December 2004. To volunteer, a potential interviewee can simply email me at appellateblog@hotmail.com and express an interest in participating in the feature.
Posted at 12:15 by Howard Bashman



"Utah suit challenges laws on polygamy": This article appears today in The Salt Lake Tribune. And The Deseret Morning News reports today that "Attorney argues against state's polygamy laws."
Posted at 10:22 by Howard Bashman



"The Ties that Bind the Senate (in Knots): Carl Levin's nepotism principle." Shannen W. Coffin today at National Review Online has an essay that begins, "Senator Carl Levin has brought to a grinding halt the judicial-confirmation process for the United States Court of Appeals for the Sixth Circuit."
Posted at 10:01 by Howard Bashman



In news from Seattle: The Seattle Post-Intelligencer reports today that "Seattle schools seek rehearing of policy that considers race for admissions." And The Seattle Times reports that "Mary K. Letourneau to be released from prison today."
Posted at 09:49 by Howard Bashman



"Court drops Nazi claim by Miami judge": The Associated Press provides this report.
Posted at 08:41 by Howard Bashman



"Gay marriage ban gets voter OK": This article appears today in The St. Louis Post-Dispatch. The Kansas City Star reports that "Missouri voters approve change in constitution." The News-Leader of Springfield, Missouri reports that "Gay marriage ban added to constitution by large margin; Both sides expect a legal challenge in the state courts." The Joplin Globe reports that "Gay-marriage ban OK'd; Area voters reject gambling proposal, back gay-marriage ban." The New York Times reports that "Missourians Back Ban on Same-Sex Marriage." The Los Angeles Times reports that "Missouri Voters Ban Same-Sex Marriage; The bellwether state's overwhelming rejection precedes similar ballot measures in 10 states." And The Washington Times reports that "Missouri marriage amendment wins handily." The measure -- which asked "Shall the Missouri Constitution be amended so that to be valid and recognized in this state, a marriage shall exist only between a man and a woman?" -- appears to have passed by greater than a 2-1 margin.
Posted at 08:37 by Howard Bashman



Church vs. State news: The Houston Chronicle reports today that "Display's backers call U.S. a Christian nation; But they testify the Bible at the the courthouse is a personal tribute." The Washington Times reports today that "Democratic adviser backed atheist in suit." And The Oak Ridger contains an article headlined "Controversial Ten Commandments stops in Oak Ridge on its way to Washington, D.C."
Posted at 08:31 by Howard Bashman



Dorf on Alabama sex toys: You say "This is one part of the Dorf video library that's yet to arrive from Time Warner Books." Indeed. But today FindLaw columnist Michael C. Dorf has an essay entitled "Is There A Constitutional Right to Sexual Privacy? Finding None, a Federal Appeals Court Upholds Alabama's Sex Toy Prohibition."
Posted at 07:12 by Howard Bashman



"Court Offers Guidance on Sentencing In Md., Va.; U.S. Judges Urged To Issue 2 Penalties": This front page article appears today in The Washington Post. The Charleston Post and Courier reports today that "Appeals court endorses dual sentences in federal cases; Pending Supreme Court decision will settle debate regarding length of prisoner's terms." The Metropolitan News-Enterprise reported yesterday that "High Court Expedites Challenges to Sentencing Rules." The St. Paul Pioneer Press reports today that "Sex case sent back for resentencing; U.S. high court decision may mean new trial." And The South Florida Sun-Sentinel reports today that "Resentencing may be delayed."
Posted at 07:00 by Howard Bashman



Tuesday, August 03, 2004
"Higher Profile for Rape Retrial? The first jury's deadlock in the O.C. case outraged some, who plan to express it outside court." Claire Luna has this article in today's edition of The Los Angeles Times.
Posted at 23:44 by Howard Bashman



"Judges can sit part-time in scheme to attract women": This article appears in Wednesday's issue of The Telegraph (UK).
Posted at 22:46 by Howard Bashman



"Lawyers seek full circuit court review in Nevada execution case": The Associated Press provides this report.
Posted at 22:44 by Howard Bashman



"Papers Reveal New Details in Kobe Bryant Rape Case": Adam Liptak will have this article in Wednesday's issue of The New York Times. And in related news, Wednesday's issue of The Los Angeles Times will report that "News Outlets Withdraw Supreme Court Appeal; Media attorneys declare victory one day after the judge in the Bryant case releases transcripts."
Posted at 22:25 by Howard Bashman



"U.S. Court Urges Dual Sentencing In Va., Md." The Washington Post provides this news update.
Posted at 22:19 by Howard Bashman



On this evening's broadcast of NPR's "All Things Considered": The broadcast contained segments entitled "Wal-Mart Suit Assumes Wide Proportions"; "Pentagon: No Lawyers for Foreign Detainees"; "Exonerated Muslim Army Chaplain Resigns Post"; and "Private England in Hearings over Prison Abuse Photos." Real Player is required to launch these audio segments.
Posted at 22:11 by Howard Bashman



"Can state intervene in medical decisions? Florida Supreme Court will decide if Gov. Jeb Bush was right in restoring a feeding tube to a critically ill woman." Warren Richey has this article today in The Christian Science Monitor.
Posted at 22:09 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Judge Refuses to Stop Guantanamo Hearings." And in other news, "Preliminary Guantanamo Hearings Planned"; "Defense Psychiatrists Win Moussaoui Access"; and "Prosecutors: Bryant Transcript 'One-Sided.'"
Posted at 21:18 by Howard Bashman



"Presidential Pryorities: Bush is doing his job, the Senate isn't." Law Professor Douglas W. Kmiec has this essay today at National Review Online.
Posted at 20:30 by Howard Bashman



"CIA Asks Bush to Discontinue Blog": Tomorrow's issue of The Onion contains this report, which goes on to explain that "U.S. Secret Service director W. Ralph Basham objected to the blog, as well." An image of the blog can be viewed at this link.
Posted at 20:19 by Howard Bashman



"Microsoft Settles Consumer Lawsuit in New Mexico": Reuters provides this report.
Posted at 18:03 by Howard Bashman



"Supreme Court Will Revisit Sentencing Guidelines": Today's broadcast of NPR's "Talk of the Nation" included this lengthy segment (Real Player required).
Posted at 17:59 by Howard Bashman



"Bush avoids dispute on wine; The administration sidesteps coming Supreme Court test over Internet sales": This article appears today in The Sacramento Bee.
Posted at 17:43 by Howard Bashman



"Unforeseen side effect of gay marriage": Columnist Steve Chapman, in Sunday's issue of The Chicago Tribune, had an op-ed that begins, "I don't know if gay marriage will have all the bad effects predicted by conservatives, but it's already having one they didn't foresee: driving them stark, raving mad."
Posted at 17:37 by Howard Bashman



Readers appear to enjoy the August 2004 installment of "20 questions for the appellate judge," which features Seventh Circuit Judge Frank H. Easterbrook: This month's installment of the "20 questions" feature is quickly emerging as a favorite of many readers. Among the comments that the interview has drawn from other bloggers are: "unsurprisingly fascinating"; "Judge Easterbrook's 20 Questions response is great"; "run (don't walk) to this link for the delightful interview"; "God save this wonderful judge"; "Another top notch interview"; "I can always count on the dazzling wit of Judge Frank Easterbrook"; "it is very interesting reading"; and "the answers were entertaining and informative."

One reader emailed to point out an error in Judge Easterbrook's answer to question 12:
With all due respect to Judge Easterbrook, his statement that Justice Kennedy was among the Justices who had been appointed after seven years or less on a federal appeals court is wrong. He was appointed in 1975 by Gerald Ford, and did not make the Supreme Court until 1988. He is thus with the other "outliers" Ginsburg and Breyer, and in fact with his addition makes the group of "outliers" not outliers at all.
You can access Justice Anthony M. Kennedy's Federal Judicial Center biography at this link.
Posted at 17:17 by Howard Bashman



U.S. Court of Appeals for the Fourth Circuit holds that Christmas tree farming is "agriculture": Yesterday's ruling explains that "cultivating a proper Christmas tree takes substantial effort and management."
Posted at 17:00 by Howard Bashman



"Prisoners' Dilemma: How the administration is obstructing the Supreme Court's terror decisions." Slate has just posted online this jurisprudence essay by Phillip Carter, whose blog you can access here.
Posted at 16:56 by Howard Bashman



In news from Seattle: The Seattle Times today contains articles headlined "Seattle School District to fight for racial tiebreaking"; "Muslim chaplain James Yee to leave Army"; and "UW employee detained; father blames Saudis."

The Seattle Post-Intelligencer, meanwhile, reports today that "Mary K. Letourneau is a free woman tomorrow; The former teacher must register as a Level 2 sex offender" and "Army chaplain Yee to resign; Muslim cleared of spying charges cites 'irreparable damage' to career." And yesterday's issue of that newspaper contained an article headlined "Maverick judge ponders retirement; Tanner, 85, talks about race, other issues in rare interview" that begins, "U.S. District Judge Jack Tanner, who is both adored and reviled for his unconventional and unpredictable courtroom style, may finally step down after more than a quarter-century on the bench in Tacoma."

Update: In other coverage of the chaplain matter, The Washington Post reports that "Accused Army Chaplain Resigning; Muslim's Case Had Been Dropped." And The Los Angeles Times reports that "Cleared of Spying, Chaplain to Resign; Muslim who ministered at Guantanamo Bay is leaving the Army, which he says ruined his career."
Posted at 14:49 by Howard Bashman



"Slate's Jurisprudence: Alabama's Sex Toy Ban." Hear Slate's Dahlia Lithwick discuss sex toys, by clicking here (Real Player required) to play a segment from today's broadcast of NPR's "Day to Day."
Posted at 14:46 by Howard Bashman



Guilty of Blakely waiver: The U.S. Court of Appeals for the Eleventh Circuit today issued this per curiam opinion denying a criminal defendant's petition for rehearing.
Posted at 14:13 by Howard Bashman



U.S. Court of Appeals for the Eleventh Circuit rules against Miami-based U.S. District Judge on her lawsuit to recover from two German banks assets that she alleges were seized by the Nazi regime from her family's estate: You can access at this link today's ruling in the appeal taken by U.S. District Judge Ursula Ungaro-Benages.
Posted at 14:07 by Howard Bashman



"In November of 2001, police arrested fifteen Atlanta pimps." So begins an opinion that the U.S. Court of Appeals for the Eleventh Circuit issued yesterday.
Posted at 14:00 by Howard Bashman



"Detainees Seeking to End Hearings Without Counsel": The Washington Post today contains an article that begins, "Lawyers for detainees in the military prison at Guantanamo Bay, Cuba, filed legal papers yesterday to halt review hearings initiated by the Pentagon, contending that the captives must first be granted access to their attorneys." And Gina Holland of The Associated Press reports that "Lawyers Seek to Block Guantanamo Hearings."
Posted at 13:22 by Howard Bashman



"Justice Dept. Appeals Ruling on Abortion Procedure": The Los Angeles Times contains this article today. The San Francisco Chronicle reports that "U.S. appeals abortion act ruling; Justice Dept. seeks to restore ban during second trimester." David Kravets of The Associated Press reports that "U.S. Appeals Abortion Ban Injunction." And Reuters reports that "Ashcroft Appeals Calif. Judge's Abortion Ruling."

From Florida, The Miami Herald reports today that "Vote on abortion notice for teens opposed; The ACLU and Planned Parenthood filed suit Monday to block a public vote on whether parents should be notified before a minor can get an abortion." The South Florida Sun-Sentinel reports that "ACLU, Planned Parenthood challenge abortion amendment." The Tallahassee Democrat reports that "Abortion amendment in court; Groups say ballot's wording will take away teens' privacy." The Boca Raton News reports that "ACLU, Planned Parenthood challenge parental notification of abortion; Groups claim ballot item violates privacy rights of minors and misleads public." And The AP reports that "Groups Challenge Fla. Abortion Measure."

Finally, from Wisconsin, The Milwaukee Journal Sentinel today reports that "'I had an abortion' T-shirt stirs debate; Some offended, others empowered by declaration."
Posted at 11:30 by Howard Bashman



"Lawyer's joke earns reprimand from court; The Supreme Court is not amused by Jim Carpenter's lecherous impersonation of a local teacher on the Internet": This article appears today in The Oregonian. You can access last week's ruling of the Supreme Court of Oregon at this link.
Posted at 10:54 by Howard Bashman



En banc U.S. Court of Appeals for the Fourth Circuit holds that Blakely v. Washington does not render U.S. Sentencing Guidelines unconstitutional: It was just a coincidence that while I was visiting some of the Fourth Circuit's farthest reaches yesterday, that court was the source of one of yesterday's two most interesting Blakely-related developments. The blog "Sentencing Law and Policy" reports here on the order that the Fourth Circuit issued yesterday following the en banc oral argument. Even more interesting is this first hand report, via the blog "Begging The Question," on yesterday's en banc oral argument.
Posted at 10:44 by Howard Bashman



Bobblehead litigation update: With apologies to The Green Bag, which has achieved justified notoriety for its depictions of Chief Justice William H. Rehnquist and Justices John Paul Stevens and Sandra Day O'Connor as bobblehead dolls, California Governor Arnold Schwarzenegger has demonstrated that litigation over one's bobblehead depiction can produce results.

The Sacramento Bee reports today that "Governor's bobblehead lives - without weapon." The San Francisco Chronicle reports that "Governor's bobblehead says farewell to arms." And The Cleveland Plain Dealer reports that "Bobblehead settlement gets nod." You can access some additional information about the settlement at this link via The Smoking Gun.
Posted at 10:31 by Howard Bashman



"Judge laments effect of releasing transcripts": This article appears today in The Denver Post, along with an article headlined "Bryant defense cites 'Mr. X'; Expert: Accuser had sex later." The Los Angeles Times reports today that "Court Releases Details; Graphic testimony from closed hearing in Bryant case is disclosed in transcripts made public." The Rocky Mountain News reports that "Transcripts released; Bryant document cites testimony of contact with 'Mr. X.'" The Associated Press reports that "Bryant Transcript Shows Prosecution Fears." Reuters reports that "Colorado Judge Unseals Some Kobe Bryant Testimony." And the trial court in which the Kobe Bryant rape prosecution is pending yesterday issued this decision in connection with the release of the transcripts.
Posted at 09:55 by Howard Bashman



"U.S. claims putting Pryor on bench constitutional; Justice Department says such interim appointments made from 1867 on": This article appears today in The Birmingham News. Anyone with an electronic copy of the brief is invited to email it along.

Update: You can access the U.S. Department of Justice's 50-page defense of the constitutionality of the recess appointment of William H. Pryor, Jr. to the U.S. Court of Appeals for the Eleventh Circuit at this link. Thanks much to the readers who responded to my request for this brief.
Posted at 08:47 by Howard Bashman



Too old to die? The AP reports from Alabama that "74-year-old tries to block his execution."
Posted at 08:43 by Howard Bashman



"Moore: Reverse ouster; Appeal to Supreme Court alleges his dismissal was unconstitutional": This article appears today in The Birmingham News. The Montgomery Advertiser reports that "Moore starts last appeal." And The Associated Press reports that "Ex-Judge Appeals to Court to Reclaim Job."

In somewhat related news, The Greeneville Sun reported yesterday that "Ten Commandments Monument Draws More Than 200 To Rally." And The Review Appeal of Franklin, Tennessee reports that "Ten Commandments' tour visits The Factory Wednesday."
Posted at 08:40 by Howard Bashman



"Alabama's sexual prohibition": The author of the blog "sugarmama" has this to say about the Eleventh Circuit's recent sex toy ruling.
Posted at 08:34 by Howard Bashman



"High Court to Act Soon on Sentencing; The justices in October will take up two cases central to confusion over federal guidelines": David G. Savage of The Los Angeles Times provides this report today. law.com's Tony Mauro reports that "High Court Agrees to Weigh Federal Sentencing Rules." The Boston Globe reports that "Top court to weigh sentencing guide; Maine case among 2 to be considered." Joan Biskupic of USA Today reports that "Justices to debate sentencing guidelines on 1st day of session." The Washington Times reports that "High court to consider sentencing guidelines." The Portland Press Herald reports that "Supreme Court will review case from Maine."

Elsewhere, The Richmond Times-Dispatch reports today that "Appeals court backs sentencing guidelines; Circuit judges told to follow current federal standards despite legal challenge." And The Times of Munster, Indiana reports that "U.S. attorney requests halt in sentencings; Local judges, lawyers at standstill until Supreme Court issues ruling."
Posted at 07:44 by Howard Bashman



"Courthouse Renovation Cited in Fire": Monday's issue of The Washington Post contained this article reporting on the fire that struck the chambers of Senior D.C. Circuit Judge Laurence H. Silberman. A reader advises that those who work at the courthouse received the following email yesterday:
Just to bring you up-to-date on yesterday's events.... Just before 1:00 a.m. on Sunday, a fire broke out in Judge Silberman's chambers on the third floor. Painters were working in his chambers, spray painting the metal fan coil units. (Painting in this building is often done at night to prevent disruptions in the offices during working hours.) All of the surfaces in the chambers had been covered with plastic sheeting while the work was being performed, and there were highly combustible materials, such as paint thinner, at the work site. The spray tool being used by the painters emitted a spark which ignited the plastic. The workers escaped without injury and had the presence of mind to immediately pull the fire alarm. The fire department responded quickly and was able to contain the fire to that one chambers. It was a massive fire, however, that took almost an hour to control and many hours of follow-up work by the fire department. In addition to the fire damage in the chambers, there was a great deal of soot from the smoke that permeated many areas of the building -- with the areas closest to the fire site being the most heavily affected. In addition, there was some minor damage to certain doors and windows in areas that had to be quickly accessed by the fire department. The building was thoroughly checked by the fire department prior to the fire fighters departure.

GSA crews worked throughout the day and night to begin the clean-up process. Work crews were brought in from across the region, and restoration specialists were also brought in to deal with potentially recoverable items from the chambers. Further, industrial hygienists tested and monitored the air quality. Although the odor of the fire still lingers in many areas, the specialists have assured us that the air quality is well within the safe range in all areas. The clean-up efforts will be continuous. Although most offices have been given at least a "once over" in terms of cleaning, it will take some time before all of the residue is eliminated. Also, a computer problem in the District Court which is preventing access to some systems is being worked on and hopefully will be resolved shortly.

Of course, the area most severely impacted is the third floor. Unless you are working in one of the chambers on the third floor that have been cleared for use, PLEASE STAY AWAY FROM THE THIRD FLOOR. There is a massive clean-up effort underway in that area. It is essentially a construction zone and should be avoided.

We will keep you posted on the clean-up efforts. We very much appreciate your patience and cooperation while the recovery work is underway.
And here's more information from a reader: "Because he's on the Commission on Iraq Intelligence, Judge Silberman was not actively using his chambers. In fact, they had been cleared out so that the rooms could be remodeled. So, if these most recent rumblings are correct, then it appears that Judge Silberman did not lose very much at all. Certainly no important papers."
Posted at 01:00 by Howard Bashman



"Supreme Court will hear 2 cases to help clarify ruling on sentencing": Stephen Henderson of Knight Ridder Newspapers provides this report. In The New York Times, Lyle Denniston reports that "Justices Agree to Consider Sentencing." In The Pittsburgh Post-Gazette, Michael McGough reports that "Supreme Court to revisit sentencing issue; Top court to address guidelines speedily." Finally, Monday's broadcast of NPR's "All Things Considered" contained a segment entitled "Supreme Court to Take Up Mandatory Sentences" (Real Player required).

You can access yesterday's Order List of the U.S. Supreme Court at this link.
Posted at 00:45 by Howard Bashman



Finally back home: I was booked on a flight scheduled to leave Charlotte, North Carolina at 5:55 p.m. for Philadelphia, where it was scheduled to arrive at 7:30 p.m. The flight boarded on time, then had a one hour air conditioning-free maintenance period at the gate, and thereafter spent the next several hours circling Harrisburg, Pennsylvania, eventually having to land in Baltimore, Maryland for refueling. After the plane landed in Philadelphia shortly after 11 p.m., the passengers were told that all gates were full and it might take 45 minutes before one opened up for us. The plane finally arrived at the gate in Philadelphia at 11:30 p.m. A pleasant time was not had by all.
Posted at 00:36 by Howard Bashman



Monday, August 02, 2004
I'll be out of town today on client business: There's a good possibility that new posts will appear sometime tonight. In the interim, enjoy the August 2004 installment of "20 questions for the appellate judge," featuring Seventh Circuit Judge Frank H. Easterbrook. The interview appears in the post below this one. As always, while I'm away from the Internet, readers are invited to draw decisions and news of interest to my attention via email.
Posted at 07:15 by Howard Bashman



20 Questions for Circuit Judge Frank H. Easterbrook of the U.S. Court of Appeals for the Seventh Circuit: "How Appealing" is delighted that Circuit Judge Frank H. Easterbrook of the U.S. Court of Appeals for the Seventh Circuit has agreed to participate in this Web log's monthly feature, "20 Questions for the Appellate Judge."

Judge Easterbrook was born in Buffalo, New York in 1948. He attended undergraduate school at Swarthmore College, where he was elected to Phi Beta Kappa and received his degree with high honors. He then attended the University of Chicago Law School, where he was an editor of the Law Review and a member of the Order of the Coif.

Following law school, Easterbrook served as a law clerk to Levin H. Campbell of the U.S. Court of Appeals for the First Circuit. He then joined the Solicitor General's Office, where he served first as Assistant to the Solicitor General and later as Deputy Solicitor General of the United States. In 1979, Easterbrook became an assistant professor of law at the University of Chicago, in 1981 he became a full professor there, and in 1984 he became the Lee and Brena Freeman Professor of Law.

In August 1984, President Ronald Reagan nominated Easterbrook to fill one of the two seats on the U.S. Court of Appeals for the Seventh Circuit that Congress added in July 1984, when the number of active judges authorized to serve on that court increased to the current total of eleven. In April 1985, following President Reagan's reelection and Easterbrook's renomination, the U.S. Senate confirmed Easterbrook, who was then thirty-six years old, to the Seventh Circuit, where today he is next in line to serve as that court's Chief Judge.

Judge Easterbrook's chambers are located in Chicago, which is also where the Seventh Circuit has its headquarters.

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

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

The job is perfect for a generalist. You work on all kinds of federal issues, served up by facts that were proposed as soap opera scripts and rejected as too implausible--and when the breadth of the portfolio leads to the generalist's inevitable errors, you can blame them on the Supreme Court. What could be better?

I was attracted to law by the scope of its coverage and enjoyed the Solicitor General's Office for the same reason. Learning how the whole legal world works is attractive; and to make sense of the legal world you have to know about the economic and scientific domains as well. I enjoy these subjects (I read science journals as well as economics journals and law reviews in my spare time), so the appellate judiciary is an intellectually comfortable place. Subjects on which I would not have worked but for the appointment--tax, pensions, bankruptcy, trademarks, copyright, to name a few--have been particularly satisfying.

Paradoxically, the subject matter's breadth also is the least favorite aspect of the position. It means that a judge is an amateur at everything. All practicing attorneys develop some specialties; so do academics. When in the SG's Office I handled a bit of this and a dollop of that, but I also became a specialist in double jeopardy law, black lung issues, securities law, antitrust, and a few other subjects. When I moved to teaching, I added new areas of expertise. Now my intellectual capital is depreciating. (I'm sure that some lawyers think this happened remarkably swiftly.)

For ten years I served as an editor of the Journal of Law and Economics, but in 1991 I resigned because economic analysis of law is becoming increasingly technical, and I could not keep up with the literature in the depth required to select the best new work within a crowded field. A judge must shift rapidly from one topic to the next; it is hard to set aside weeks or months to master a subject and write interestingly about it. (My colleague Richard Posner is a one-off exception; not even Holmes was able to do the like after joining the appellate bench, and appellate judges carry much heavier workloads now than in Holmes's day.)

One other thing: judges can't practice law. I enjoyed appellate advocacy greatly--both the preparation of briefs and the give-and-take of oral argument. While in the SG's Office I briefed more than 100 cases on the merits in the Supreme Court and argued 17. The year before my appointment to the Seventh Circuit, I argued three more in the Supreme Court. Teaching is compatible with a little practice on the side: both scholars and students gain from practical experience. But today if I tried to argue a case in some other court, I'd find myself a guest of the federal government at the jail across the street from the Seventh Circuit. Such is life.

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

One should speak only of the dead. Holmes is too obvious an answer. Candidates from the 19th Century (other than John Marshall) would produce only a "Huh?" from many readers--and my specialty from that century is the trifling rather than the great. Compare David P. Currie, The Most Insignificant Justice: A Preliminary Inquiry, 50 U. Chi. L. Rev. 466 (1983) (plugging Gabriel Duvall as the most insignificant Justice in the Court's history), with Frank H. Easterbrook, The Most Insignificant Justice: Further Evidence, 50 U. Chi. L. Rev. 481 (1983) (empirical demonstration that Thomas Todd made Duvall look like a titan of the bench).

Hugo Black and Henry Friendly are the judges I most admire among those who worked in the 20th Century and are no longer living. (I know you asked for one selection. But although the interview is captioned "20 Questions for the Appellate Judge," you propounded more than 40, with multiple interrogatory sentences per paragraph and compound inquiries per sentence. So a two-to-one ratio must be acceptable.)

Black read widely after his appointment, transcending his roots as a populist from Alabama, and his absolutist approach to constitutional issues--that is, his willingness to take the Constitution seriously as law rather than as aspiration--is admirable. He reached principled decisions and stuck with them as times and politics changed. That's the right thing to do when issuing decisions in the name of an unchanging document. Judges must explain not only why their views are sound but also why on debatable issues only the judges' views count. Unless the Constitution encodes principles that can be applied using the approach of Marbury v. Madison, then the political resolution must prevail. (I expatiate on this in Abstraction and Authority, 59 U. Chi. L. Rev. 349 (1992).) Justices are fond of saying that all power must be checked, but where is the check on the Supreme Court's? It lies in text, logic, and history. Black stuck with these over time. His legacy and approach should be more popular today than they are.

Friendly was the most knowledgeable appellate judge of the 20th Century, managing to overcome the limits that time imposes on generalist judges. Combining intellectual integrity with prodigious effort and a powerful intellect, Friendly made a contribution to the law exceeding that of many who are promoted to the Supreme Court. And he managed to do this off the bench as well as through his judicial work. Both Benchmarks (1967) and Federal Jurisdiction: A General View (1973), remain splendid reading long after the work of his contemporaries has faded.

3. How did you come to President Reagan's attention as a potential Seventh Circuit nominee, when did you first realize that you might be interested in being a federal appellate judge, what concerns if any did you have about becoming a federal appellate judge at such a young age, and do any of those concerns persist today?

This is four questions, and the answers are:

a) Several people drew my name to the attention of the right officials. Robert Bork, with whom I worked when he was SG, learned enough about me to think that I might have the makings of a judge. Antonin Scalia, whom I first met when he was Assistant Attorney General for the Office of Legal Counsel (and came to know better when we were colleagues at the University of Chicago), said favorable things. Kenneth Dam, one of my colleagues at Chicago and Deputy Secretary of State in the Reagan Administration, also bears some responsibility. But illustrating the role that chance plays in all such appointments, credit (or blame!) also must go to Tom Campbell, who was Deputy Associate Attorney General (or was it Associate Deputy Attorney General, or Assistant to the Deputy Associate Attorney General?) in the early Reagan years. After service on the law faculty of Stanford and stints in Congress, Tom today is Dean of the Business School at UC Berkeley. We met in 1970 when he was in college and I in law school, covering my room and board as undergraduate debate coach. We kept up acquaintances as he entered law, earned a Ph.D., worked for the FTC, and went on the teaching market. That Tom became an insider in judicial selection, remembered me favorably, and knew my academic work, was indispensable in putting a youngster on the bench.

b) Law students learn by reading appellate decisions. Students, practicing lawyers, and professors all spend much time critiquing judicial decisions and claiming that surely one could do better. It is natural to imagine trying one's own hand at doing better. I've thought since before entering law school that it would be wonderful to have a career that included practice, service in the executive branch, teaching, and judging. By good fortune, things have worked out that way. (And one attraction of the bench is that it is possible to continue teaching.)

c) My appointment came too soon, because it meant a premature end to appellate practice and the kind of scholarly work that requires dedicated blocks of time. If it had been possible to plan a career, I would have stayed in the academy (practicing and consulting, say, 20% of my time) another 15 years or so. Most scholars have done their best work by then. But planning is not possible. If you turn down a judgeship, opportunity likely will not knock again. So, when the offer came, I said yes. (Gerhard Casper, my Dean at the time, was nonplussed; he said that he could understand jumping to the D.C. Circuit but not to a regional circuit. My view was and is exactly the reverse. Administrative law is enjoyable, but a varied diet is better. Robert Bork and Antonin Scalia, who joined the D.C. Circuit in the early 1980s both spent more than half of their time there reviewing decisions of the Federal Energy Regulatory Commission. I get to decide antitrust, securities, tax, discrimination, and intellectual-property cases, and some administrative matters too, along with the inevitable cocaine prosecutions. And I don't have to suffer through D.C.'s miserable six-month summers.)

d) After joining the court, it was too late to look back.

4. You have been described by someone who has seen many appellate arguments throughout the United States as one of the most aggressive questioners at oral argument now serving on the federal appellate bench. What do you seek to accomplish at oral argument, in what ways do you find oral argument helpful or unhelpful, and is there anything an appellate advocate can do, either at oral argument or earlier, to ensure that he or she is able to satisfy the standards that you expect from attorneys at oral argument?

This is three questions, which I'll answer at one go. I learned the trade as an advocate to a hot bench. Anyone who thinks that the questions from the Seventh Circuit are frequent should sit in on some arguments at the Supreme Court. And the Justices allocate one hour per case; we must get the same work done in 20 to 40 minutes. The Seventh Circuit hears argument in almost all appeals with counsel on both sides; to do this, we must devote less time to each. The tradeoff implies more questions per minute and can produce harried advocates, but it is worthwhile if you think oral argument helpful--as I do.

Argument is the court's time. The brief is counsel's monologue, argument the dialog. When judges behave like sponges, passively absorbing a stream of words tracking the brief, oral argument contributes little. We might as well have stopped with the written presentation. If the lawyer is lucky, he will hear the doubts that the judge noted in red ink in the margins while reading the brief; a skillful advocate elicits those from the bench. Far better to learn of the judge's qualms while time remains to give the answer, than to be shocked when the opinion appears.

I use argument to grasp details about the case (such as whether particular arguments were preserved in the district court or what the record shows about some potentially important fact) and test my tentative legal impressions. The latter, especially, means laying out for counsel the difficulties with that side's position and seeing whether counsel has a riposte. If yes, I must go back to the drawing board (which is fairly common); but if the lawyer lacks an answer, or tries to weasel out of meeting the question, then I'm more inclined to think the difficulties insuperable. That's one reason why an oral advocate should never say "I'm coming to that later" (the time is now, when it matters to the judge) or "That's a hypothetical; the facts of this case differ" (the judge knows it is a hypothetical; the goal is to abstract away from the facts and test the legal issue at a more general level). Lawyers who say "just decide this case on its own facts" are asking for a law-free zone, which we don't offer. (I sometimes mutter under my breath: "Whew! Until that reminder, I had been planning to decide this appeal on some other case's facts!")

Good appellate arguments are like conversations. It may be hard for lawyers to think this way, but it is vital: Counsel offer knowledge about the case and the corner of the law in which it must be resolved, while generalist judges can place the controversy within the web of similar or related principles. Gains from trade are to be had. Sometimes the back-and-forth, like exchanges among friends, can be pointed, but that's necessary to strip away irrelevancies and get to the core in the short time available. The best way to prepare is to follow John W. Davis's Rule #1 of appellate advocacy: change places mentally with the court and imagine what a generalist judge would find troubling about your position. Friends who have had nothing to do with the case (other than to read the briefs) can help you by supplying the outsider's perspective. Visits to the court also help. Watching other oral arguments before yours commences introduces you to the court's style. Assistants in the SG's Office regularly watched their colleagues' arguments in the Supreme Court and sometimes attended oral arguments in private litigation. By the time they stood up to argue their own cases, they knew what the process was about, what worked, and what didn't. Now that oral arguments are available online, "attendance" can be remote--though the visual adds to the aural.

5. The Seventh Circuit today has established a reputation, in part because of rulings you have written, of being a court where the rules are enforced almost mercilessly and amicus briefs are disdained greatly. Please say a few words to your colleagues on other circuits about why attorneys should be publicly called to task for violating court rules, and do you agree that it makes sense to strictly referee motions for leave to file amicus briefs instead of letting all such briefs be filed and simply ignoring the unhelpful ones?

I'm not even going to try counting how many questions this one entails.

I'll start with amicus briefs. Judge Posner has forcefully stated the view that most amicus briefs are worthless and that clients are not getting their money's worth. See, e.g., Voices for Choices v. Illinois Bell Telephone Co., 339 F.3d 542 (7th Cir. 2003) (in chambers). I find that a surprising attitude for a pioneer in economic analysis in law. Why would clients--many of them organizations with sophisticated general counsel to protect their interests--get taken to the cleaners by other lawyers trying to persuade them to pay for the preparation of worthless briefs? This is not a snake oil market! I am more favorably disposed to amicus briefs (perhaps having written too many of them to think the endeavor silly) and regularly permit their filing when serving as motions judge. Some of these briefs add little, but it is easier to skim them (or pitch them into the circular file) when preparing for the argument then to try ex ante to determine which briefs will facilitate accurate decision. I have found several amicus briefs quite helpful. Nonetheless, I share Judge Posner's view that "me too" briefs are useless; it is the quality of argument, not a list of which interest groups are on whose side, that matters.

As for rules: again, anyone who thinks the Seventh Circuit a stickler should try practice in the Supreme Court. The Clerk's Office of that institution enforces rules to the letter; we are more lax.

One man's "merciless" enforcement is another's "even-handed" enforcement. Equable enforcement promotes efficient disposition of litigation, generally a Good Thing--both national and local rules are the result of extended collaboration between bench and bar to determine how best to handle appeals--though we often waive enforcement when the alternative is excessive delay or expense. The greater the press of business, the more important is compliance with the rules. Judges must read approximately 1,000 pages to prepare for a day of oral argument; enforcing rules that make these materials legible, to the point, digestible, and easy to handle is good for everyone. If the rules are good, enforce them; if the rules are bad; change them; there's little point in having good rules but winking at noncompliance.

Rules can be complex, and the Clerk's Office of the Seventh Circuit does its best to help lawyers comply. The Clerk offers a valuable service that too few lawyers use: if a draft brief is tendered before the due date, the Clerk's staff will check it for conformity to national and local rules, so that counsel can made any necessary fixes before the brief is reproduced. But counsel who prepare a brief for this court however they please (or however things work in the state court where they usually practice), without consulting the rules, are in for a surprise, and the plea "I didn't know!" is self-condemnation rather than justification.

I care principally about two rules and call attorneys to task to reduce the number of violations in the future. (Judges who do not believe in deterrence should become architects or playwrights instead; most of the legal system relies on it.) Enforcing the rules is costly to the individual judge, who must write more in the opinion and then deal with the responses to the order to show cause. Like other exercises in deterrence it has benefits only for the future; but if everyone decided to let today's violation pass in silence there would be too many problems tomorrow. Embarrassment or a $1,000 fine are trifling as penalties go; small wonder violations continue.

One of the two rules on my short list is Fed. R. App. P. 28(a)(4), and its parallel Circuit Rule 28(a). These demand vital details about subject-matter jurisdiction and appellate jurisdiction. Determining whether jurisdiction exists should be the first order of business for every federal judge. Without jurisdiction, judges are just pundits. Tenure comes with a limit: the judicial role must be authorized by both the Constitution and a federal statute. Lawyers who ignore these requirements--or, worse, seek to pull a fast one--are imposing intolerably on their adversaries, on the courts, and on other litigants farther back in the queue for judicial attention.

Last year my clerks gave me a sketch, done by a cartoonist, that captures my attitude: a lawyer is disappearing through a trap door, which I opened by pushing a button on the bench. On his way down (way, way down; the Seventh Circuit's courtroom is on the 27th floor of the Dirksen Courthouse) the lawyer exclaims: "BBUT, YOUR HONOR, JURISDICTION WASN'T RAISED BELOOOOOWWW...!" No, indeed; but lawyers who follow national and local Rules 28(a) will cover the subject on appeal. (I often use the metaphor when speaking to groups about appellate advocacy. The phrase "Your Honor, I wasn't trial counsel so I don't know what’s in the record" also opens the trap door. A voice-activated switch should automate the process, but I can't persuade the General Services Administration to install a trap door. GSA expresses concern about disrupting ongoing trials if an appellate lawyer should pass through district courts on the way to the street.)

Inviolable Rule #2 is Circuit Rule 30(a) and (b), which requires counsel to supply copies of the decision under review (and, in collateral attacks, any written rulings supporting the original judgment being challenged). It is impossible to evaluate an appeal without knowing what the court or agency did, and why. Lawyers sometimes respond that the opinion is in the record, so why reproduce it. This isn't always true (sometimes the opinion or evidentiary ruling is oral, and occasionally counsel fail to order the transcript) and, more to the point, judges may not have ready access to the record. There is one record, in Chicago, and three judges per panel. Of our 11 active judges, only 6 have principal chambers in Chicago. (Two of four senior judges who continue to hear cases also are located away from the headquarters.) Moreover, even the judges with principal chambers in Chicago often prepare elsewhere--at home, in Michigan, in Paris, or in my case in Alaska, where I escape to relax and work. Counsel must file briefs and appendices electronically, see Circuit Rule 31(e), so that judges can read wherever they find themselves. Electrons are much easier to tote around than those heavy protons and neutrons that constitute paper! When lawyers fail to comply with Circuit Rule 30, however, preparation of the appeal may be delayed or frustrated.

6. Several readers have emailed me to suggest that I ask you to comment on the importance of civility and respect in the courtroom, between opposing attorneys and between judges and attorneys. Also, on a related point, have you ever written an opinion that criticized an argument, an attorney, or a trial court judge in a manner that you later regretted as too harsh?

Civility is overrated. There is no place for mean or petty conduct (in the courtroom or in depositions, where the problem is worse), but if maintaining a genteel atmosphere means pussy-footing around problems, then the trade is a poor one. Pointed questions, and insistence that they be answered, serve vital ends--especially when time is limited, as it must be for the court to hear oral argument in all counseled appeals. A judge's job is to protect the litigants' rights, not to shelter the feelings of advocates (who are paid for their services). Comments in opinions on the merit of arguments made or actions taken, by counsel or district judges, may help avert recurrence and so can produce benefits net of any personal sting. It also can help potential clients distinguish good attorneys from mediocre ones or, worse, attorneys who put self-interest ahead of clients' interests. If judges don't reveal these things, who will? But it is never appropriate for a judge to belittle anyone for the sake of expressing superiority (power corrupts, and underpaid judges--see Question 13 below--should not take out the difference by lording it over others), or for one lawyer to demean another rather than chalk up legal or factual points.

7. The name "Easterbrook" is commonly preceded by the words "Posner and." Yet just as practitioners and the press tend to overstate the extent to which Justices Scalia and Thomas share the same legal philosophy, there have been a number of significant cases in which you and Judge Posner have disagreed over the proper outcome. In what ways does your approach to judging differ from Judge Posner's, do you have any major philosophical disagreements with his overall view of the law, and, where such differences or disagreements exist, why are your positions the correct ones or, at a minimum, preferable to his? Finally, before I leave the subject of Judge Posner, what are your views on "baby selling"?

Judge Posner and I both support economic analysis of law. We've been academic co-authors, served on the same faculty, hold views in the tradition of John Stuart Mill about the proper roles of collective versus private choice, have edited economics journals and been officers of the American Law and Economics Association, and have been colleagues on the Seventh Circuit for an extended period. No surprise, then, that we should be associated. But as your question observes there are differences.

Judge Posner is the federal judiciary's pragmatist-in-chief (see, in addition to his judicial writings, Richard A. Posner, Law, Pragmatism, and Democracy (2003)), while I think that judges should be concerned less about wise policy and more about sources of authority for life-tenured officials to make decisions. Judge Posner calls me a "formalist"; I prefer "legalist" (though "textualist" will do). "Formalist" implies a view that syllogistic reasoning generates all important answers, which I don't believe. My main question is whether texts (and history) grant the judiciary the sort of powers over a given subject that justifies displacing the resolution of elected officials or compelling private citizens to surrender their wealth, their liberty, and sometimes their lives. Arguments based on wise policy do not suffice; concrete authority is required, so that decisions are based on law rather than even well-informed choice and we have (to use a good phrase) a government of laws and not of men.

I've made more extended arguments for this position in Abstraction and Authority, already cited, and some other articles, including Statutes' Domains, 50 U. Chi. L. Rev. 533 (1983); Textualism and the Dead Hand, 66 Geo. Wash. L. Rev. 1119 (1998); and Judicial Discretion in Statutory Interpretation, which will appear Real Soon Now in the University of Oklahoma Law Review. A book-length treatment is coming (see Question 17 below). Eventually.

How often do the differences in approach matter? Not as often as a bald statement of position might imply. See Daniel A. Farber, Do Theories of Statutory Interpretation Matter?: A Case Study, 94 Northwestern L. Rev. 1409 (2000). Still, interpretive method matters often enough. For a recent decision that found us on opposite sides, see United States v. Mitchell, 353 F.3d 552 (7th Cir. 2003). [Editor's note: that decision can be accessed online at this link.]

8. The First Circuit is authorized to have six active judges, while the Ninth Circuit is authorized to have twenty-eight active judges. The size of the U.S. Courts of Appeals fall between those two extremes, with the Seventh and Eighth Circuits having the second-smallest number of authorized active judges, eleven. What in your view is the optimal size of authorized judges for a federal appellate court, and would the Nation be better served by having Congress increase the number of judges authorized to serve on the federal appellate courts or by paring back on the jurisdiction of the federal courts? Also, what is your view on whether the Ninth Circuit -- which is already by far the largest federal appellate court and which might soon be expanded to thirty-five active judges -- should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best?

When I clerked for Judge Campbell, the First Circuit had only three judges and thus always sat en banc. That was too slim; more points of view promote deliberation. Twenty-eight, by contrast, is morbidly obese. It is larger than the original Senate. Add senior judges, plus visiting circuit and district judges, and the effective size of the Ninth Circuit is closer to 50 than to 28. Town-meeting size makes coordination difficult and can conduce to town-meeting conduct. It is smaller than the mob that condemned Socrates, but that's not saying much. On average, more than two years pass between the time any given judge of the Ninth Circuit sits with any other, which frustrates the ability to operate as a single institution. And its record in the Supreme Court speaks eloquently. See Richard A. Posner, Is the Ninth Circuit Too Large?, 29 J. Legal Studies 711 (2000) (studying unanimous or summary reversals, which cannot be attributed to philosophical differences between the Justices and the appellate courts). When I was in the SG's Office, we contemplated filing a cert. petition that began: "This is a petition to review a judgment of the United States Court of Appeals for the Seventh Circuit, and there are other reasons to issue the writ." Now that dubious mantle has passed to the Ninth Circuit. A few years ago, a lawyer who propounded some farfetched proposition was asked: "Do you have any authority for that point?" Counsel cited a decision of the Ninth Circuit, and the questioner (not me!) continued: "All very well, but do you have any legal authority?"

No scientific answer to the question "how hot must porridge be to be just right?" (or how large a circuit should be), but I'm confident that 20 and up is impossibly large. Fifteen is do-able, but only when the court actually operates at that size. For the last decade, the Seventh Circuit has had no visitors and has operated at an effective size of 13 (including senior judges). We try hard to make decisions consistent. One vital procedure is Circuit Rule 40(e), which permits one panel to overrule another's decision. This means that judges convinced that there is a problem in circuit law can clean things up rather than introduce a hair-splitting distinction of the kind that complicates life for bench and bar alike. Another helpful procedure is the court's practice of changing panel composition daily rather than weekly. This means that as a rule one judge of the Seventh Circuit will sit with another on six distinct occasions annually. Frequent mixing and meeting promotes the idea that judges serve as proxies for the full court, rather than as free agents.

I don't know whether the number of appellate judges (about 180 all told) is too few or too many. Other branches of government determine how many federal laws must be administered by the judiciary. But if Congress is determined to add new business, then it should make corresponding adjustments to the appellate structure. More appellate courts, with fewer judges on each, are better than bulking up the existing courts. Extra courts of appeals may create more inter-circuit conflicts, but 18 or 20 would not make appreciably more than the 13 existing courts of appeals do already. (Each incremental court adds proportionally fewer conflicts; a 14th or 15th matters only if the first 13 would have been unanimous, and when that condition holds the marginal court is unlikely to think differently.) The current level of conflict is tolerable; indeed, the Supreme Court hears only half as many cases annually as it did when I was in the SG's Office.

One way of splitting the Ninth Circuit would be to break off the Pacific Northwest as a Twelfth Circuit. The states left behind still would have too many judges, but the judicial business within the new circuit would be more manageable without making things worse anyplace else. Or the court could be split along the San Andreas fault, where division is happening naturally. If neither approach is feasible, perhaps the court could be divided at the judge level. I favor vertical; others support horizontal; but neither approach has much political currency.

9. Your opinions tend to be a pleasure to read, which is something that I cannot honestly say of the opinions written by the vast majority of your colleagues on the U.S. Courts of Appeals. Why, in your view, do not more of your colleagues endeavor to write opinions that are interesting and accessible? And perhaps you would be so kind as to list no more than a handful of your opinions that qualify as your all-time favorites.

Writing good opinions is hard work and cannot be delegated. Opinions (like briefs, see the next question) should be simple, direct, and addressed to intelligent generalists. I learned these skills from many teachers, primarily my reviewers and colleagues in the SG's Office. I have had a long time to practice, which is why opinions by my own hand are better than those drafted by law clerks, for they have the pallor of institutional products. Judges can be direct and even venturesome; clerks can't. They cover all bases; qualify all utterances; pile on the jargon, vogue phrases, euphemisms, and acronyms; confuse nouns with adjectives (Fowler called the disease "noun plague"); suppose that intensifying adverbs make propositions stronger; and often assume that whatever is novel to them is novel to everyone else. These collectively give opinions the consistency of bread pudding.

Every year I reread Strunk & White's Elements of Style and Bryan Garner's Elements of Legal Style to guard against backsliding. I don't agree with all of their recommendations, but at least I know when a recommendation is being spurned and have reasons for striking off independently. Lawyers tend to be wretched writers, which is odd given that the written word is their stock in trade. Perhaps the problem comes from reading principally the work of other lawyers. Judges and other lawyers should spend more time with books and magazines, where exposition is at a higher level. If all lawyers would read Strunk & White and Garner even once, the world would be a better place. A turn through Ambrose Bierce's Devil's Dictionary wouldn't hurt, either.

A "handful" of opinions would be ten to twenty (by the counting conventions mentioned in answer to Question 2), but I'll cite only seven. All are more than a decade old, which avoids entanglement with contemporary disputes. I've selected them for a combination of substantive and stylistic reasons. See American Booksellers Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), affirmed summarily, 475 U.S. 1001 (1986); Kirchoff v. Flynn, 786 F.2d 320 (7th Cir. 1986); In re Erickson, 815 F.2d 1090 (7th Cir. 1987); In re Sinclair, 870 F.2d 1340 (7th Cir. 1989); United States v. Van Fossan, 899 F.2d 636 (7th Cir. 1990); Miller v. South Bend, 904 F.2d 1081 (7th Cir. 1990) (en banc) (dissenting), reversed, 501 U.S. 560 (1991); United States v. Marshall, 908 F.2d 1312 (7th Cir. 1990) (en banc), affirmed under the name Chapman v. United States, 500 U.S. 453 (1991).

10. Before leaving the subject of writing, what suggestions do you have for attorneys who file briefs in the U.S. Courts of Appeals? More specifically, what distinguishes an effective appellate brief from one that is not, what percentage of briefs do you find to be especially helpful and well-written, and is good legal writing, in your view, an art or a science?

It is an art--and like other arts is best learned at the feet of masters. I learned from my superiors at the SG's Office, who had learned from theirs in turn. Appellate practice groups in firms such as Mayer Brown Rowe & Maw (often staffed by refugees from the SG's Office) also are great places to learn.

An effective brief is simple, to the point, easy to read (no passive subjunctive constructions, please), addressed to a generalist (no jargon; no unusual acronyms; don't assume that the reader knows your corner of the law), and honest to a fault. Lawyers who face up to factual or legal weaknesses win respect and win cases; lawyers who dodge or substitute bluster lose respect; lawyers who dissemble get the trap door. The section on brief writing in Stern, Gressman, Shapiro & Geller's Supreme Court Practice applies to all appellate courts and is the best I know of. The Seventh Circuit publishes some of its own advice at http://www.ca7.uscourts.gov/Rules/handbook.pdf, a handbook now a remote derivative from Robert Stern's original. A set of guidelines on good physical presentation, at http://www.ca7.uscourts.gov/Rules/type.pdf, is part of the full handbook but worth consulting separately.

11. What role should an appellate judge's personal and political ideology play in deciding cases, and when if ever is it appropriate for an appellate judge to decide how to rule based solely on his or her personal preference? Also, if some federal appellate judges are going to decide cases based largely on personal preference, can U.S. Senators be faulted for assuming that every appellate court nominee might adopt that approach if confirmed? Finally, does the current tenor of the confirmation process cause you any concern as a sitting federal appellate judge, do you think that your nomination would have been confirmed as quickly and smoothly today as it was in 1985, and what if anything realistically can be done to improve the nomination and confirmation process?

A judge's personal and political views should play as little a role as possible. Judges are human (though to many lawyers it must seem otherwise), and as Holmes said have their "can't helps." And sometimes a statute grants a power to create common law, which inevitably depends on pragmatic considerations. But judges should not readily assume that such a power has been placed in their hands. Judges have tenure so that they can implement the law even when the public favors something more expedient. Unfortunately the Dark Side of Tenure is that judges who are insulated from politics also have leeway to place their druthers over the law. Resistance is mandatory. See also my answer to Question 7 above.

When political officials assume that judges strive to implement their own views at the expense of the law (or at least do so whenever they have an opening), and appoint (or handle confirmations) accordingly, they may participate in a self-fulfilling prophesy. A politicized appointment process--and I refer to the role of both the Executive Branch and the Legislative Branch--is more attractive to people with political rather than legal goals, and these people also are more apt to survive it as they have more friends, in both of the elected branches. I would have had trouble today, because after six years in the academy I had published views that were bound to offend or disappoint some interest groups, and I had no political sponsors (other than the one in the Oval Office). Senator Percy was neutral at best. (It was Senator Dixon, a Democrat, who assisted me through the Senate's side of the process!) Yet judges who come from the academy have not been the big offenders; this is true about those generally on the left as well as those generally on the right, and placement of some academics on the bench has considerable benefits for the legal system.

I am especially distressed about a recent development in the nomination and confirmation process: holding against nominees the positions taken in litigation. It used to be understood that lawyers serve as advocates and make arguments in the interests of clients. It is not that we trust newly appointed judges to leave their old views behind them; the mind doesn't work that way. But statements in briefs are not the lawyers' "own" views to begin with (when in the SG's Office I filed briefs taking positions that I would not have supported as a judge).

It is bad enough to assume that a scholar who writes an article opposing rent control would automatically think as a judge that rent control is unconstitutional--the subjects are unrelated--but terrible to assume that a lawyer who (say) represents persons accused of committing securities fraud would then favor securities fraud while on the bench. Nonsense. Ex-prosecutors on the bench acquit defendants; former defense lawyers appointed to the bench convict defendants; proponents of public support for religious instruction still apply the Establishment Clause after appointment; and so on. There is a nasty side effect of condemning the lawyer on the client's account: ambitious lawyers will shy away from representing controversial clients. And as almost any cause or client can be depicted as controversial from some perspective... Do we really want this?

12. A law review article titled "Who Would Win a Tournament of Judges?" concludes with the observation that if someone other than you or Judge Posner is nominated to fill the next U.S. Supreme Court vacancy, President George W. Bush will have some explaining to do. Is serving on the Supreme Court something that you now or ever have aspired to? Would it be appropriate for a judge with a realistic chance of being nominated to serve on the U.S. Supreme Court to consider how ruling one way or another in a pending case could affect his or her changes of being nominated or confirmed to the High Court? And in this era of filibusters and recess appointments, would you agree that a President who is seeking to fill a Supreme Court vacancy might have the most success nominating someone whom the opposing political party is likely to find unobjectionable or someone about whom little is known.

I'm in no position to give Presidents and Senators advice about how to find and evaluate candidates for the Supreme Court. But I can say (a) any judge who claims not to fancy a position on that Court is a liar, and (b) any judge who trims his opinions to fit the political times and enhance his chance of promotion is not engaged in "good Behavior" and should be ejected if he lacks the decency to resign. Litigants are entitled to decision according to law, not decision that boosts a judge's career.

Honest discharge of judicial duties means that anyone who serves on an appellate court for very long undercuts his chances, for that judge is apt to issue opinions that displease almost every faction. It is no accident that promotions from courts of appeals to the Supreme Court tend to come early in a judge's career, or not at all. Think of Learned Hand and Henry Friendly, who never received the promotion despite serving in times when judicial appointments were less overtly political. On the other side are Justices Stevens, Scalia, Kennedy, Thomas, and Souter, all promoted after serving seven years or less. Robert Bork had done enough in even six years on the bench to provide ammunition for opponents; John Parker and Clement Haynsworth encountered similar problems, unjustly in both cases, on account of their decisions. Justices Ginsburg (13 years) and Breyer (14 years) are outliers.

13. Is the salary now paid to federal appellate judges too low? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

There's a queue to join the bench, so the salary must be too high!

But the existence of the queue is misleading, so that inference is unsound. Many people want to become judges for the power of the position, just as others will take pay cuts to join the Legislative and Executive Branches. Because judges hold authority by reason rather than recent election, making the job attractive to power-seekers is unfortunate, even if each believes that he seeks power only to do good.
Courts ought to include a mix of the different roles in the profession. We have had no practitioners since Daniel Manion joined in 1986, and none from a large firm since Philip Tone and John Paul Stevens in 1970. More recently, the required pay cut has been too drastic to make the office acceptable. A bench filled with lifetime bureaucrats (the alternative to the private bar or the academy, which also should not dominate) is one that is staff-dependent, for people at the top of hierarchies rely on aides.

What is more, it is cruel to set salaries in a way that disappoints expectations. Someone who takes a 50% reduction in income shouldn't be told in a few years that he must now accept 30% of his peer's wages. As Robert Bork often observed: "You can't put your kids through school on psychic income."

Judicial salaries now are tied to legislative salaries, and the need to improve judges' pay then provides an excuse for legislators to increase their own. That's regrettable, and most other western nations have found a different benchmark. A good linkage would be to the nonprofit sector, avoiding any prospect of the government paying big-firm wages. For example, one could lock judicial salaries to the average pay of tenured professors at top-20 law schools. The ABA recently proposed such a benchmark, see Federal Judicial Pay Erosion: A Report on the Need for Reform (Feb. 2001); Federal Judicial Pay: An Update on the Urgent Need for Action (May 2003), but did not follow through with a proposal to create an automatic link. Making the process automatic is important. Note that even with this lockstep judges would make less than scholars--for professors supplement their income with consulting and endowed lectureships. It is hard to imagine that federal judges have a lower value than the average scholar (though the latter might disagree).

14. You teach at a law school, are regularly in the market for recent law school graduates seeking to be hired as law clerks, and review on a daily basis the work of people who graduated from one law school or another. In what ways should the Nation's system of legal education be reformed and/or improved?

I haven't a clue. Sorry. Maybe that's because I think that the system of legal education does a pretty good job--and it can't be blamed for lawyers' lousy writing habits, which they may have picked up while writing undergraduate term papers in sociology. Law schools have a comparative advantage at doctrinal analysis; other skills must be taught through the apprenticeship system.

My only proposed reforms are incremental. One is to shorten law school from three years to two. That's enough to get across the legal method and an adequate base of knowledge. Many schools would offer longer programs (as business and medical schools do) for those who planned to enter specialties or teaching, and I expect that three-year and even longer programs would be popular. More choice, less regimentation. The other is to increase emphasis on statistical and other means to verify (or refute) the factual hypotheses that underlie many legal propositions. Too often teachers play the game of "it can be argued that..." without showing the students how their arguments can be tested and confirmed or rejected.

15. How do you make use of your judicial law clerks, and in what respects does that differ from the clerkship that you had following law school?

I use clerks the old fashioned way: to do research and serve as sounding boards. Both of my clerks (I hire only two) work on every appeal. We read the briefs and do what other investigation is needed, then discuss matters about a week before argument. That may lead to follow-up work. After argument we discuss again, and sometimes more research is in order. Then I'll write something and ask for criticism--on facts, substance, organization, or style--and proposals for improvement.

Learned Hand once told a clerk, who had asked if he could write a memo on some subject: "of course you may, but I will not read it." I'm not that anti-memo, but I think that continual interchanges are superior to paperwork.

Each clerk gets to prepare one draft during the clerkship. I'm too lazy to let them try more; it is much more work to go through the editorial process than to write from scratch. Judge Campbell, for whom I clerked, was more comfortable with drafts from clerks. After receiving them he treated the text as a post-argument memo, took out his No. 2 lead pencil and yellow legal pad, and started writing himself. That admirable approach has influenced my own use of clerks. I left with great respect for Judge Campbell and a desire to be as rigorous and careful as he was (and is). He also taught me that although it was necessary to do the work to cover all issues, it is not necessary to write each up: "explain what matters, and not all you have learned" is a good standard for appellate opinions.

16. After clerking for Judge Campbell on the First Circuit, you went on to one of the best jobs an appellate lawyer can have, working first as an Assistant to the Solicitor General and then as a Deputy Solicitor General of the United States. How did you secure employment in that office, under which Solicitors General did you serve, and what do you regard as the most significant case or cases that you argued before the U.S. Supreme Court? Also, did you try to obtain a clerkship at the U.S. Supreme Court, and in retrospect is not having clerked at the U.S. Supreme Court something that you regret?

I got the job by writing a letter to Robert Bork, then the SG, who checked with some of my professors at Chicago and called me in for an interview. We hit it off when I criticized the glacial pace at which scholars were producing the Holmes Devise History of the Supreme Court (it's still not done!). So he hired me.

The Washington Post noted that around the same time the SG's Office had hired three lawyers either fresh from clerkships or lacking the customary appellate experience. None of us had clerked on the Supreme Court. The Post concluded that good lawyers were no longer willing to work for the SG and attributed this to Bork's role in firing Archibald Cox as Watergate special prosecutor. The paper thought that dark days lay ahead for the Office with a second-rate staff. The three bottom-of-the-barrel selections were Robert Reich (later Secretary of Labor in the Clinton Administration), Danny Boggs (now Chief Judge of the Sixth Circuit), and me.

Although Bork hired me, and I worked closely with him and A. Raymond Randolph (then Deputy SG, now on the D.C. Circuit) on many high-profile cases (such as capital punishment, the Federal Election Campaign Act, school desegregation, and other topics), I was promoted by Wade McCree, Solicitor General in the Carter Administration. That's a testament to the apolitical nature of the office and to Judge McCree's confidence that the staff would do its job the right way, which I think we did. There was no "political deputy" during the Bork and McCree years; that position did not come about until the Reagan Administration. Those appointed Deputy SG from outside the ranks of assistants (Jewel Lafontant in the Bork years, Stephen Barnett in McCree's time) worked with the career staff as equals. Until his appointment as Chief Judge of the Court of Claims, the principal Deputy SG was Daniel Friedman, a career public servant and straight arrow. He was also a wonderful editor, responsible for the simple and direct style of SG briefs.

The most important step in my career was not serving as a clerk at the Supreme Court. Clerks are barred for two years from involvement in litigation in that tribunal, and thus from working at the SG's Office. Had I clerked at the Supreme Court I probably would have gone directly into teaching and would have lost fascinating and valuable experiences--not only as an appellate advocate, but also as an appellate judge. Some people passed the two years after clerkships in the Office of Legal Counsel before moving to the SG's Office (Michael McConnell, now on the Tenth Circuit; David Strauss, now on the faculty at Chicago; and Sara Sun Beale, now on the faculty at Duke, are examples), but I do not think that I would have done the same, and today I would have regretted the loss.

Significant cases that I argued include Trans Alaska Pipeline Rate Cases, 436 U.S. 631 (1978) (regulatory authority over initial rates of oil pipelines); A&P v. FTC, 440 U.S. 69 (1979) (buyer liability under the Robinson-Patman Act); Broadcast Music, Inc. v. CBS, Inc., 441 U.S. 1 (1979) (antitrust status of ASCAP and application of per se rules to joint ventures); Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2 (1984) (antitrust analysis of tie-ins); NCAA v. Board of Regents, 468 U.S. 85 (1984) (antitrust analysis of network television contracts for college football). The latter two came after I had left the SG's Office. Cases in which I worked on the brief but did not argue include Buckley v. Valeo, 424 U.S. 1 (1976) (constitutionality of the Federal Election Campaign Act); Gregg v. Georgia, 428 U.S. 153 (1976) (constitutionality of death penalty); Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (attorneys' advertising under the antitrust laws and the First Amendment); Dayton Board of Education v. Brinkman, 433 U.S. 406 (1977) (school desegregation); United States v. Scott, 437 U.S. 82 (1978) (Double Jeopardy Clause); Regents of University of California v. Bakke, 438 U.S. 265 (1978) (use of race in student admissions); Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979) (constitutionality of veterans' preferences; role of intent in constitutional law); Reiter v. Sonotone Corp., 442 U.S. 330 (1979) (consumers as antitrust plaintiffs); and Industrial Union Department v. American Petroleum Institute, 448 U.S. 607 (1980) (cost-benefit analysis under OSHA).

17. You have referred in the past to a planned book on textualism, forthcoming "one of these years," with the title "Legal Interpretation." How is the book coming, and what can you say about its contents and goals? Also, the U.S. Supreme Court from case to case applies sharply different approaches to textualism. What's a lower court judge to do while he or she awaits the helpful guidance that your book is sure to supply?

Ah, this is a sore spot. Finishing the book has been delayed, in part by other business and in part by my unease about selecting the level of generality at which to read statutes. I've made some progress on the latter front; see Judicial Discretion in Statutory Interpretation, mentioned in answer to Question 7. While waiting for the book, people can read that article and the others already mentioned.

18. In 1996, you gave a talk entitled "Cyberspace and the Law of the Horse" at the University of Chicago Legal Forum in which you argued that "cyberlaw" is likely little more than "multidisciplinary dilettantism" and that lawyers should "let the world of cyberspace evolve as it will." Eight years later, what is your assessment of how the law has treated cyberspace and whether there is, needs be, or is but shouldn't be a field of "cyberlaw"? Also, in what ways has technology changed how you perform the duties of appellate judge, and what changes do you anticipate in the future?

My views are unchanged, see Cyberspace versus Property Law?, 4 Tex. Rev. L. & Politics 103 (1999), despite the best efforts of Larry Lessig and other friends to enlighten me. See Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 113 Harv. L. Rev. 501 (1999). Perhaps I'm uneducable.

Technology is a different matter. Better word processing equipment has enabled me to write pithier opinions by making it easier to experiment, rearrange, and delete. The Internet and Adobe Acrobat enable briefs to be filed electronically and make it possible to work from Alaska, at the base of Mt. Alyeska where I can see three glaciers less than two miles from my front window. Thanks to DSL service, electronic briefs, and legal resources online, I can work as easily in Alaska as in my chambers in Chicago. Of course, in Alaska I take the risks of living with avalanches, volcanoes, earthquakes, tsunamis, and the Ninth Circuit.

19. Your brother Gregg is, among his many talents, a funny and perceptive writer about professional football (his "Tuesday Morning Quarterback" column is now found online here). And you are mentioned occasionally as "Official TMQ brother Frank," in which capacity you have coined the term "festime halftivities"; pointed out that since only bad guys -- Darth Maul, Emperor Palpatine -- end up being thrown into the bottomless pits, their purpose is to trap bad guys, therefore safety railings around such pits would be counterproductive; and once even conducted "an incredibly scientifically advanced analysis of the relationship between performance and appearing on national television." Are you a devoted NFL fan? Do you cheer on your hometown Buffalo Bills or have you lived in Chicago long enough to become a Bears fan? Have you ever used football analogies in any of your opinions (or wanted to), or are you content to leave the sports-themed rulings to your colleague Circuit Judge Terence T. Evans? Finally, a blurb on law.com once attributed one of your rulings to "Sixth Circuit Judge Gregg Easterbrook." Do you think that your brother would be willing to join the sometimes contentious Sixth Circuit, and might a career swap be in the works for you two?

As a public official, I root impartially for the Chicago Bears, the Green Bay Packers, and the Indianapolis Colts, all located within the Seventh Circuit. But the Bills still hold a special place in my heart--as do the bottomless pits in Star Wars, which demonstrate that once civilizations have achieved sufficient technological progress OSHA will wither away. I hope that Judge Evans one day will show up on the bench wearing a cheese head (he is very partial to the Packers); I'll retaliate with clip-on moose antlers (or perhaps the Darth Vader helmet one pair of clerks gave me). I'd never want to enter a contest with Judge Evans (or my brother Gregg) about either sports knowledge or sports humor, however; both are masters. I keep hands off sports; Gregg leaves law to me. Fair trade.

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

Reading, music, and hiking in the Ninth Circuit.
Posted at 00:00 by Howard Bashman



Sunday, August 01, 2004
"Secrets behind the mask: How a promising device designed to protect workers left many fighting for their lives." This article will appear in the August 9, 2004 issue of U.S. News & World Report.
Posted at 15:49 by Howard Bashman



"A.C.L.U. to Withdraw From Charity Drive": Adam Liptak has this article in today's issue of The New York Times.
Posted at 15:39 by Howard Bashman



"Fire Destroys Judge's Chamber": The Washington Post today provides a news update that begins, "A two-alarm fire destroyed a judge's chamber inside a U.S. District courthouse in N.W., Washington early Sunday morning. Firefighters were trying to determine the cause of the third floor blaze which also caused smoke damage to the fourth and fifth floors." A reader who forwarded the link to this article emails, "Doesn't say which judge's chambers were destroyed, however. It says 3rd floor, which has mostly the less-senior appellate judges (district judges are on 2, 4, 6, with the more senior appellate judges on 5)."
Posted at 13:02 by Howard Bashman



In today's issue of The St. Petersburg Times: A lengthy article is headlined "The gay marriage divide: Each week, it seems, brings a new claim or counterclaim in the same-sex marriage debate. But what are the issues?" And columnist Robyn E. Blumner has an op-ed entitled "Sniffing out our rights."
Posted at 09:31 by Howard Bashman



"High court to hear a claim for compensation for spying; Couple says CIA pledged lifetime financial support": This article appears today in The Boston Globe.
Posted at 09:30 by Howard Bashman



"Church case might end up in Supreme Court; After its petition for a rehearing in a case pitting the town against two Orthodox Jewish congregations, town officials might appeal to the Supreme Court": The Miami Herald today contains an article that begins, "Surfside officials are considering their next legal move, including a possible appeal to the U.S. Supreme Court, after the town's petition for a rehearing in the case of a lawsuit brought by two small Orthodox Jewish congregations was denied."
Posted at 09:28 by Howard Bashman



"Bryant Case Latest to Show Tighter Rein on the Media; Courts are more prone to limit what can be revealed when privacy or fair-trial issues arise": David G. Savage and Maura Dolan have this article today in The Los Angeles Times.
Posted at 09:27 by Howard Bashman



In news from Alabama: The Birmingham News today contains an article headlined "Judge, U.S. have often squared off; Family probe, lien once source of friction" that begins, "The government prosecutor stood speechless before Chief U.S. District Judge U.W. Clemon after he ordered her arrest during a hearing last week in former Gov. Don Siegelman's corruption case."

The Huntsville Times, meanwhile, reports today that "Scopes trial site lures Moore monument." And on Friday the newspaper reported that "Sex-toy business thriving; Despite ruling upholding ban, stores still selling."
Posted at 09:23 by Howard Bashman



"Thwarting more judgeship votes": The Charleston Post and Courier contains this editorial today.
Posted at 09:21 by Howard Bashman



"Charlotte native seen as attorney general; Meantime, Duke prof represents Martha Stewart on appeal": This article appears today in The Charlotte Observer.
Posted at 09:17 by Howard Bashman



"Locked in: Twenty years ago, a Massachusetts judge helped draft a set of rules that promised to make criminal sentencing fairer and more rational. Today, will he stand in the way of cleaning up the mess that they've become?" Emily Bazelon, Senior Editor of Legal Affairs magazine, has this article today in The Boston Globe.

Elsewhere, The Birmingham News reports today that "Supreme Court ruling spurs new indictments." The Daily Press of Hampton Roads, Virginia today contains an article headlined "Federal sentences in question: The federal appeals court in Richmond will consider the effect of a Supreme Court decision." The Westerly Sun reports that "Renskip Chief Set For New Legal Talks." In The Denver Post today, Law Professor Robert Hardaway has an op-ed entitled "Protecting the right to a jury trial: A recent Supreme Court decision is a victory for defendants' rights." Finally, columnist James J. Kilpatrick has an essay entitled "A mess for cleaning up."
Posted at 08:29 by Howard Bashman







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