How Appealing

Thursday, September 30, 2004
"Plan Would Let U.S. Deport Suspects to Nations That Might Torture Them": This article appears today on the front page of The Washington Post.
Posted at 23:16 by Howard Bashman



"Girls Just Wanna Be Swapped: Why post-feminist women enjoy Trading Spouses and Wife Swap." Dahlia Lithwick has this essay online at Slate.
Posted at 22:42 by Howard Bashman



"Military Recruits at HLS; Dean Kagan expresses strong objection to recruiting on campus": This article appears today in The Harvard Crimson.
Posted at 22:27 by Howard Bashman



"Supreme Court poised for another term of blockbuster cases": Stephen Henderson of Knight Ridder Newspapers provides this report.
Posted at 22:12 by Howard Bashman



"Wis. Supreme Court rules Nader on the state ballot": The Associated Press provides this report.
Posted at 22:05 by Howard Bashman



"Supreme Court term gets off to fast start; The justices are set to hear a number of big cases, and their docket may also include any election disputes": Warren Richey will have this article in Friday's issue of The Christian Science Monitor.
Posted at 19:55 by Howard Bashman



"Supreme Court Preview": Today's broadcast of NPR's "Talk of the Nation" contained this lengthy segment (Real Player required).
Posted at 18:51 by Howard Bashman



"Supreme Court Job Invigorates Rehnquist": Hope Yen of The Associated Press provides this report. The article is accompanied by a "Biography Box of William H. Rehnquist."
Posted at 17:41 by Howard Bashman



Newspaper in settlement over destruction of tapes of Justice Antonin Scalia's speech praises the result it obtained: The Hattiesburg American, in addition to the article I noted here yesterday, also yesterday offered an article headlined "Journalists: Agreement important for press, public" and an editorial entitled "Agreement is a victory for press, public."
Posted at 17:33 by Howard Bashman



The U.S. Supreme Court opts to be master of its eminent domain: The Star-Ledger of Newark, New Jersey reports today that "Land battle in Connecticut could echo through Jersey; U.S. justices to hear eminent domain fight."

The Cleveland Plain Dealer reports today that "Panelists discuss eminent domain; Groups examine Lakewood's, others' policies."

The Hartford Courant today contains an editorial entitled "Overturn Eminent Domain Case."

In The Boston Globe today, Jeff Jacoby has an op-ed entitled "Abusing eminent domain."

Finally, in The Chicago Tribune today, Steve Chapman has an op-ed entitled "Confiscating your home for more fun and profit."
Posted at 17:17 by Howard Bashman



Good news regarding this web log's "20 questions for the appellate judge" feature: I am very pleased to report that there will be an October 2004 installment after all. The interviewee is one of the most recently confirmed judges serving on a U.S. Court of Appeals, and the installment will feature a guest interviewer who somehow managed to ask twenty-three separate questions. I will post the interview online at midnight on Monday, October 4, 2004.
Posted at 17:10 by Howard Bashman



"Justice defends position on ruling; Davis says politics not involved in writing decision on sex offender": The Charleston (W.Va.) Daily Mail today contains an article that begins, "State Supreme Court Justice Robin Davis says her name and the court's reputation have been dragged through the mud during campaign season debate about a controversial decision that released a convicted sex offender."

If I am reading the article correctly, apparently in the West Virginia Supreme Court of Appeals it is not unusual for a dissenting Justice to be assigned to write the majority opinion in addition to his or her dissent. If that is so, it strikes me as quite an unusual manner of proceeding.
Posted at 16:59 by Howard Bashman



"Ashcroft's Porn Wars Come to Texas": This article appears in the October 1, 2004 issue of The Austin Chronicle.
Posted at 16:45 by Howard Bashman



"Friends, admirers pay respects to U.S. judge; Mourners fill Trinity Episcopal Cathedral": Yesterday's issue of The Arkansas Democrat-Gazette contained This article.

And last Sunday, that newspaper contained a fascinating editorial entitled "A light in the law: Richard Sheppard Arnold, 1936-2004."
Posted at 16:13 by Howard Bashman



"Sisters recall trials and triumph in landmark racial-equality case": This article appears today in The Grand Rapids Press.
Posted at 16:06 by Howard Bashman



Soon to be Yaser Esam Hamdi's hometown newspaper no more: The Charleston (S.C.) Post and Courier reports today that "Hamdi still waiting for release from Hanahan brig."
Posted at 16:04 by Howard Bashman



"Restricting judicial speech": This editorial appears today in The Cincinnati Post.
Posted at 15:58 by Howard Bashman



"Lawyers warn of NZ court backlog": Friday's edition of The New Zealand Herald contains an article that begins, "New Zealand lawyers are bracing themselves for an enormous court backlog with the departure of three district court judges to Pitcairn Island this week. Auckland judges Charles Blackie, Russell Johnson and Jane Lovell-Smith are working as supreme court judges in the island's sex abuse trial. They are not expected to return until early December."
Posted at 15:55 by Howard Bashman



"Justice in the Balance: Catholic Lawyers and Scholars Speak out on the Threat to Catholic Values Posed by a Kerry Presidency": A coalition of Catholic lawyers and legal scholars has issued this statement today.
Posted at 15:53 by Howard Bashman



Ten Commandments news: From Georgia, The Atlanta Journal-Constitution today contains an article headlined "God or history? ACLU is expected to review display."

And from Maryland, The Associated Press reports that "Frederick to fence off disputed religious marker."
Posted at 15:48 by Howard Bashman



"'04 docket includes 3 free-speech cases": Tony Mauro has this article online at the First Amendment Center.
Posted at 15:44 by Howard Bashman



"Judge won't block gay marriage vote": The Atlanta Journal-Constitution contains this article today.
Posted at 15:30 by Howard Bashman



"Scalia condemns judicial moralism; Scalia: Morality should be determined by society, not judges." This article appears today in The Harvard Gazette.
Posted at 15:25 by Howard Bashman



"The desperate pleas we get for extra copies of these bobblehead dolls are both amusing and sad": What better way to announce that an auction of all three U.S. Supreme Court Justice bobblehead dolls that The Green Bag has issued to date is now underway at eBay? The opening bid for what is currently a complete set, consisting of one bobblehead doll each for Chief Justice William H. Rehnquist, Justice John Paul Stevens, and Justice Sandra Day O'Connor, is a mere $50.00. The auction will end one week from today.

You can access the eBay listing at this link. Let the wagering of absurd sums of money begin!
Posted at 15:19 by Howard Bashman



Sharply divided Supreme Court of Florida upholds constitutionality of that State's three-strikes violent felony offender law: You can access today's 4-3 ruling at this link.

In early news coverage, The Associated Press reports that "Florida high court upholds 3-strikes law."
Posted at 15:11 by Howard Bashman



"Future of Supreme Court likely at stake in election": The Scripps Howard News Service provides this report, along with an item headlined "Sentencing reform, civil rights on high court's agenda."
Posted at 15:06 by Howard Bashman



"Claremont Institute Challenges Removal of the Cross from Los Angeles County Seal": The Claremont Institute issued this press release yesterday, and the complaint itself can be viewed at this link.

In news coverage, The Los Angeles Daily News reports today that "Cross removal prompts suit."
Posted at 15:02 by Howard Bashman



"No-more-babies order toppled; Ohio high court backs father of 7": The Cleveland Plain Dealer contains this article today. And The Toledo Blade contains an article headlined "High court: Judge went too far telling man not to procreate."
Posted at 14:37 by Howard Bashman



"Man files 2nd appeal in loss of license; Judge erred in ruling, Lebanon driver says": The Patriot-News of Harrisburg, Pennsylvania today contains an article that begins, "A Lebanon man whose driver's license was taken away by the state after he admitted drinking six to 12 beers a night is taking his fight to a higher court."
Posted at 14:33 by Howard Bashman



View online the order denying rehearing en banc that the U.S. Court of Appeals for the Eleventh Circuit entered in the Alabama sex toys case: I have posted a copy of the order online here. The opinion that a divided three-judge panel issued in July 2004 holding that Alabama's law prohibiting the distribution of sex toys is not unconstitutional can be accessed at this link.
Posted at 14:27 by Howard Bashman



"Missed Trial: Hamdi's release fits Bush's larger strategy -- Avoid courts at all costs." On Monday, The New Republic posted online this essay by Yonatan Lupu.
Posted at 14:20 by Howard Bashman



"Starr Emerges as Key Lawyer for N.Y. Times": This article appears today in The New York Sun.
Posted at 12:51 by Howard Bashman



It's been a while since I reported on the status of the Justice Sandra Day O'Connor bobblehead doll now being auctioned on eBay: The current bid price is $187.50, and the auction doesn't conclude until next Wednesday.
Posted at 12:30 by Howard Bashman



The Internet declares bankruptcy? I had to do a double-take when I first saw the headlines of this report from Reuters and this report from The Associated Press. What actually seems to be the case is that Intermet has declared bamkruptcy. As always, readers are invited to make up their own jokes about the Internet declaring moral bankruptcy.
Posted at 11:05 by Howard Bashman



"Court to Drop Veil of Secrecy on Records": Gina Holland of The Associated Press provides this report.
Posted at 10:30 by Howard Bashman



"The next president could tip high court; Aging, divided bench gives election winner chance to leave legacy": Today Joan Biskupic has this article in USA Today.
Posted at 10:24 by Howard Bashman



"Judge disarms Patriot Act proviso": Declan McCullagh of c|net News.Com has this report on a ruling (122-page scanned PDF file) that the U.S. District Court for the Southern District of New York issued yesterday.

In other coverage, The New York Times reports that "Judge Strikes Down Section of Patriot Act Allowing Secret Subpoenas of Internet Data." The Washington Post reports that "Key Part of Patriot Act Ruled Unconstitutional; Internet Providers' Data at Issue." The Los Angeles Times reports that "Provision of Patriot Act Is Ruled Unconstitutional; A method used to obtain electronic data allows for 'coercive searches,' says a judge, who grants time for an appeal." The Boston Globe reports that "Provision in Patriot Act is rejected; Judge curbs access to phone, Web data." And The Washington Times reports that "Judge strikes down part of Patriot Act."

The Knight Ridder Newspapers report that "Federal court strikes down part of Patriot Act." USA Today reports that "Court strikes down Patriot Act provision." And yesterday evening's broadcast of NPR's "All Things Considered" contained a segment entitled "Federal Judge Rules Against Part of Patriot Act" (Real Player required).

In coverage from the wire services, The Associated Press reports that "Ashcroft Likely to Appeal Patriot Ruling," and Reuters offers a similar report.

Finally, Law Professor Orin Kerr, who knows a thing or two about the Patriot Act and related areas of the law, has two posts (here and here) about the ruling online at "The Volokh Conspiracy."
Posted at 10:07 by Howard Bashman



"Lead lawyer for Schiavo's parents quits; After more than three years representing them, Pat Anderson says, 'I've done my part shoving that rock up the hill'": This article appears today in The St. Petersburg Times.
Posted at 09:57 by Howard Bashman



"Condesa Launches Blawg Republic": You can access the press release at this link. To view this new blawg aggregator, simply click here.

Speaking of aggregators, readers are invited to join me in asking Google News to add "How Appealing" as one of its sources. Several other blogs have recently been added as Google News sources, and instead of protesting those decisions the least that fans of "How Appealing" can do is request equivalent treatment.

To send an email suggesting that "How Appealing" be added as a Google News source, simply write to source-suggestions@google.com. Thanks so very much in advance to those readers who are able to take a moment to send along a request via email to the good folks at Google News.
Posted at 09:08 by Howard Bashman



"Island chief raped me when I was 11, Pitcairn trial told": The Independent (UK) contains this article today. The Guardian (UK) reports today that "Mayor among accused in Pitcairn rape trial." The Toronto Globe and Mail reports today that "Rape trial grips Pitcairn Island." The Associated Press reports that "Sex Trials Against Pitcairn Men Begin." And Reuters offers a report headlined "Pitcairn Mayor 'Led Rape' on Island-Prosecutor."
Posted at 07:04 by Howard Bashman



"Lawyers stand up for judge; Attorneys say Martin's critics don't have all the facts on rape case": This article appears today in The Lawrence (Kan.) Journal-World.
Posted at 06:57 by Howard Bashman



"Upcoming Supreme Court Term Includes Important Cases on Civil Rights, Age and Sex Discrimination, and 'States' Rights' Issues": The organization People For the American Way this week issued this four-page report.
Posted at 06:55 by Howard Bashman



"The Supreme Court's Excessive Secrecy: Why It Isn't Merited." FindLaw columnist Edward Lazarus, who has something of a personal stake in how this issue is resolved, has this essay today. And "The Volokh Conspiracy" has posted online here the text of a letter that certain U.S. Senators have issued concerning this matter.
Posted at 06:49 by Howard Bashman



"Appeals Nominee Gets Low Grade; ABA Cites Licensing Lapses in Granting 'Qualified' Rating": The Washington Post today contains an article that begins:
The American Bar Association yesterday gave President Bush's choice for a seat on the U.S. Court of Appeals for the District of Columbia the lowest possible passing grade for judicial nominees, and sources said a Republican Senate chairman was expected to schedule a hearing next week on his nomination.

Thomas B. Griffith, who failed to obtain a law license in Utah or keep a current license in the District during parts of the past six years, received a slight majority from his peers after an unusually long, three-month investigation. Under the ABA's system, that means at least eight of the 15 members on the review panel rated him "qualified" for a seat on the court, and at least six rated him "not qualified."
You can view the ABA rating in question at this link.
Posted at 06:45 by Howard Bashman



"Enemy combatant's release delayed; Saudi government objects to terms of release": CNN.com provides this report concerning Yaser Esam Hamdi.
Posted at 06:40 by Howard Bashman



Wednesday, September 29, 2004
"Ted Olson and Walter Dellinger appeared on C-SPAN's Washington Journal program this morning": So emails a reader, who goes on to note that they spoke about the U.S. Supreme Court's upcoming Term, prospective Supreme Court nominees, the judicial confirmation process, and their experiences arguing cases before the Court. You can view the segment online by clicking here. It runs slightly longer than 47 minutes.
Posted at 23:58 by Howard Bashman



In a perfect world, I would post news of all U.S. Supreme Court preview sessions before they occur: This afternoon at the Stanford Law School, the Stanford Law American Constitution Society held an OT '04 Supreme Court Preview featuring Pam Karlan, Tom Goldstein and Alan Morrison.

While it's too late to attend that event, tomorrow evening in Philadelphia the National Constitution Center will host a Supreme Court Preview that's open to the public, free of charge, and yet to occur. According to the description posted online here, "Kathleen Sullivan of Stanford Law School and John Yoo of Berkeley Law School [will] take a look at the important cases coming up in the next session of the Supreme Court. Award-winning Supreme Court reporter Tony Mauro will moderate." I am reliably advised that attendees need not worry about being bonked on the head by falling wooden beams. It won't hurt a bit. On a more serious note, I would even attend this event myself if I hadn't just spent part of my thirteenth wedding anniversary away from home visiting with the Eighth Circuit's judges.
Posted at 23:55 by Howard Bashman



People For the American Way cranks up the tunes for an animated segment about the upcoming election's possible impact on the U.S. Supreme Court: You can access the animated segment by clicking here. I'm afraid my favorite bad animation remains the "Bushenstein Monster."
Posted at 23:50 by Howard Bashman



A reader report on today's deadbeat-dad-related appellate news: While I was away from the computer today, a helpful reader emailed:
The Ohio Supreme Court today issued its decision in State v. Talty, a closely-watched case in which the trial court ordered the deadbeat-dad defendant (whose mug shot features one of the world's last great mullets) to refrain from procreating as a condition of community control. A five-justice majority struck down the condition as overbroad under state law, and thus avoided the question of whether strict scrutiny would apply in a constitutional challenge to such a condition.
You can access today's ruling at this link. And my earlier coverage of the case can be accessed here.

The Associated Press, meanwhile, reports that "Ohio Court Overturns Procreation Order."
Posted at 23:33 by Howard Bashman



"3rd Circuit: Defendants Cannot 'Pick Off' Class Action Plaintiffs Using Rule 68." Online at law.com, Shannon P. Duffy has this article reporting on a decision that the U.S. Court of Appeals for the Third Circuit issued today.
Posted at 23:12 by Howard Bashman



U.S Supreme Court Justice bobblehead bliss or an opportunity to squander your retirement savings? David M. Gossett, one of the co-founders of The Green Bag, emails to advise that he plans to auction a full set of U.S. Supreme Court bobbleheads that The Green Bag has issued to date -- one each of Chief Justice William H. Rehnquist, Justice John Paul Stevens, and Justice Sandra Day O'Connor -- on eBay sometime within the next ten days.

David says he plans to donate all of the proceeds from this auction to charity. Given that individual bobbleheads have sold for more than $400 on eBay, this set could easily sell for more than $1000. I will post a link to the auction once David has it up and running on eBay.
Posted at 22:35 by Howard Bashman



U.S. Court of Appeals for the Eleventh Circuit denies rehearing en banc in Alabama sex toys case: I'll post a copy of the order online tomorrow, but I can report now that the order, which was entered last Friday, states that no one on the court asked for a poll concerning whether to take the case en banc. You can access the ruling of a divided three-judge panel in the case at this link.
Posted at 22:29 by Howard Bashman



Back home: I'm pleased to report that I have returned safely from my very enjoyable trip to St. Louis. This trip was my first encounter with 50-seat US Airways Express regional jets. Now if only those airplanes actually offered air conditioning.
Posted at 22:11 by Howard Bashman



"Appellate Seminar...On Blogs?" The blog "Abstract Appeal" offers this post.
Posted at 08:44 by Howard Bashman



Having a great time in St. Louis: The talk that I delivered last night to the Judges of the U.S. Court of Appeals for the Eighth Circuit and other distinguished guests to kick-off the conference hosted by the Eighth Circuit and the Federal Judicial Center on the future of electronic filing in the U.S. Courts of Appeals seemed to be very well received.

The conference is being held at a quite lovely hotel, and I am very much enjoying my first trip ever to St. Louis. Sadly, the Cardinals baseball team is playing in Houston, so I won't be able to see in action while I'm in town the best team in baseball this year during the regular season.

Here are three random facts that I learned in preparing and delivering my speech last night: (1) the Eighth Circuit recently became the first and only U.S. Court of Appeals to have a majority of George W. Bush nominees among its active judges; (2) two of its newest judges are quite young, but the younger of those two isn't the one whom I had suspected; and (3) First Circuit Judge Bruce M. Selya no longer serves on the Judicial Panel for Multidistrict Litigation.

Today I will be attending the conference sessions, and tonight I'll be heading back to Philadelphia. More updates will likely appear here before the day is over.
Posted at 08:20 by Howard Bashman



More eBay U.S. Supreme Court Justice bobblehead madness: Last night, a Justice John Paul Stevens bobblehead doll sold at auction on eBay for an amazing $405.00.

And the Justice Sandra Day O'Connor bobblehead doll that's currently being auctioned now has a high bid of $152.50.

As a thoughtful appellate commentator once observed, "Who among us can afford not to subscribe to The Green Bag?"
Posted at 08:14 by Howard Bashman



"Future justices a key election issue; Both parties are aware that the presidential winner could shape the Supreme Court": This article appears today in The Salt Lake Tribune.

In the November 2004 issue of The Atlantic Monthly, Benjamin Wittes has an essay entitled "Supreme Irony: As elections near, partisans always invoke a threat to the 'balance' of the Court; But the real peril isn't ideology--it's blandness."

Finally, Howard Mintz of The San Jose Mercury News has an article headlined "Presidents' picks have enduring effect on law."
Posted at 08:10 by Howard Bashman



"Supreme Court takes on Pa. death sentence": Michael McGough of The Pittsburgh Post-Gazette has this article today.
Posted at 08:07 by Howard Bashman



"Cruise case gets last shot; Supreme Court to hear case over access for disabled": This article appears today in The Houston Chronicle.
Posted at 08:05 by Howard Bashman



Ten Commandments news: The Daily Herald of Everett, Washington reports today that "Judge to get monument case; Arguments begin Tuesday in U.S. District Court in a lawsuit accusing Everett of fostering religion with its Ten Commandments marker."

From Alabama, The Associated Press reports that "Dismissal clears Moore in fees claim."

Finally, The Press-Enterprise of inland southern California today reports that "Courtroom quotation spurs objection; A rights group finds a word in Theodore Roosevelt's statement exclusionary." The quote in question, engraved in the mahogany walls of one of Riverside, California's oldest courtrooms, states that "The true Christian is the true citizen."
Posted at 08:00 by Howard Bashman



"Have We Heard the Last of Yaser Hamdi? Why His Promise Not to Sue the Government May Not be Binding." FindLaw columnist Michael C. Dorf has this essay today.
Posted at 07:59 by Howard Bashman



"Group sues for judges' free speech; Canon bars comment on personal belief": The Lexington Herald-Leader today contains an article that begins, "A conservative Lexington foundation wants a federal judge to allow state judicial candidates to state their views on issues such as gay marriage and religious freedom."
Posted at 07:57 by Howard Bashman



"Judge's ouster would be rare; Only once previously have Kansans voted against retention": The Lawrence (Kan.) Journal-Star contains this article today.
Posted at 07:54 by Howard Bashman



When good hugs go bad: The Seattle Post-Intelligencer reports today that "Lawyer may get 2-year suspension for 'sexual' contact." And The Seattle Times reports that "Suspension suggested for former public defender."
Posted at 07:51 by Howard Bashman



"Law professor apologizes for plagiarism in 1985 book": This article appears today in The Washington Times. And The Los Angeles Times reports that "Professor Admits Not Crediting Author."
Posted at 07:48 by Howard Bashman



"U.S. plans abortion ban appeal": The Lincoln (Neb.) Journal Star today contains an article that begins, "The U.S. Justice Department announced Tuesday it will appeal a Lincoln judge's ruling that declared a federal abortion ban unconstitutional." And The Omaha World-Herald reports that "Government to appeal partial-birth abortion ban ruling."
Posted at 07:44 by Howard Bashman



"Anti-smoking ads upheld; Judges reject tobacco firms' claim that state violates their rights": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 07:11 by Howard Bashman



In today's edition of The Los Angeles Times: David G. Savage has articles headlined "Justices to Take on Cities' Seizure of Private Land; The Supreme Court will hear an appeal in a Connecticut case that could test the government's power of eminent domain" and "High Court to Hear Case of Cochran's Ex-Client."

In other news, "Ashcroft Is Undeterred in Push for Capital Cases; Despite waning jury support, the attorney general wants more federal death penalties."

And an article reports that "Prisoner's Release Spurs Lindh to Ask for Clemency."
Posted at 07:06 by Howard Bashman



"One Final Day In Court: U.S. supreme court will hear Fort Trumbull eminent domain case." This article appears today in The Day of New London, Connecticut. And Lynne Tuohy of The Hartford Courant today reports that "Land Dispute In High Court; Eminent Domain Focus Of New London Case."
Posted at 07:01 by Howard Bashman



Justice Antonin Scalia in the news: The Boston Globe reports today that "Scalia decries judicial activism in Harvard talk." And The Harvard Crimson reports today that "Scalia Describes 'Dangerous' Trend."

Elsewhere, The Hattiesburg (Miss.) American reports today that "Agreement ends suit over Scalia tapes; Marshals Service admits taking reporters' recordings illegal."
Posted at 06:55 by Howard Bashman



Available online from law.com: Tony Mauro has articles headlined "Supremes to Examine Private Property Seizures" and "Sentencing Tops High Court's New Term; Justices also to tackle disputes over beef ads, wine, marijuana."

In news from California, "9th Circuit OKs Use of Tobacco Taxes for Advertising" and "Effort to Free Lindh Seen as a Long Shot."

And Shannon P. Duffy reports that "3rd Circuit OKs Deportation Under Patriot Act."
Posted at 06:44 by Howard Bashman



"Pitcairn trials delayed": This article appeared yesterday in The Australian.

The Herald Sun reports today that "Island women stand by their men."

The Independent (UK) today contains an article headlined "Growing up on Pitcairn: 'We all thought sex was like food on table.'"

And The New Zealand Herald offers a news update headlined "Pitcairn Island governor seeks return of documents."
Posted at 00:08 by Howard Bashman



Tuesday, September 28, 2004
"Injunction sought against trespass law": The Honolulu Advertiser today contains an article that begins, "The American Civil Liberties Union of Hawai'i is asking for a court order barring the state from enforcing a law that gives public officials the authority to ban individuals from public places."
Posted at 23:55 by Howard Bashman



"Imploding Terror Cases": This editorial appears today in The Los Angeles Times.
Posted at 23:50 by Howard Bashman



"Treasury Being Sued for Curbs on Editing": The New York Times contains this article today.
Posted at 23:45 by Howard Bashman



"Prospects shift as DiMasi takes over for Finneran; Foes of gay marriage see blow to amendment hopes": This article appears today in The Boston Globe.
Posted at 23:44 by Howard Bashman



"Justices Agree to Hear Property Rights Case": Linda Greenhouse will have this article in Wednesday's issue of The New York Times.

In Wednesday's issue of The Washington Post, Charles Lane will have an article headlined "Justices To Hear Property Case; Individual Rights At Issue in Conn."

And Joan Biskupic will have an article headlined "Justices take eminent-domain case" in Wednesday's issue of USA Today.
Posted at 23:37 by Howard Bashman



"The Case for Jurisdiction-Stripping Legislation: Restoring Popular Control of the Constitution." The Republican Policy Committee of the U.S. Senate issued this report today.
Posted at 23:19 by Howard Bashman



"Please Help Find a Replacement for Judge Harry T. Edwards": Evan Schaeffer has this post online at "Notes from the (Legal) Underground."
Posted at 23:16 by Howard Bashman



"Slate's Jurisprudence: 'Enemy Combatant' Hamdi Freed." Today's broadcast of NPR's "Day to Day" included this segment featuring Dahlia Lithwick.
Posted at 23:05 by Howard Bashman



Reuters is reporting: Now available online are articles headlined "Calif. Anti-Smoking Ads Not Unconstitutional-Court" and "NY Times wants reporters' phone records protected."
Posted at 22:55 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined:
Posted at 22:51 by Howard Bashman



"Supreme Court Agrees to Hear Another Case Involving Party Primaries and Associational Rights": Law Professor Rick Hasen, at his "Election Law" blog, takes note of the grant of review in (what else?) an election law case.
Posted at 22:37 by Howard Bashman



Lyle Denniston is reporting: Online at "SCOTUSblog," he has a post entitled "A New Look at Property Rights, and Other Issues" summarizing today's grants of review and a post entitled "Justice 'Question' is Now Retired - So to Speak" describing the U.S. Supreme Court's new method of identifying in its transcripts of oral argument which member of the Court is speaking.
Posted at 22:32 by Howard Bashman



Which blank space makes you more curious? Not to be outdone by this ruling (see pages two through nineteen in particular) that the U.S. Court of Appeals for the Seventh Circuit issued yesterday, the U.S. Court of Appeals for the Second Circuit today posted online this for-publication opinion.
Posted at 22:27 by Howard Bashman



"9th Cir. memdispos now on-line!" A reader who is a certified appellate law specialist in California emails to draw this news to my attention. Making non-precedential opinions widely available, as the Ninth Circuit has now done, is typically the first step in allowing such opinions to be cited back to the issuing court.
Posted at 22:22 by Howard Bashman



U.S. Court of Appeals for the Third Circuit expedites appeal challenging New Jersey Governor James McGreevey's decision to remain in office until after the November general election: You can access the Third Circuit's order, issued today, at this link. And The Associated Press reports that "Appeal set for lawsuit seeking special election."
Posted at 22:10 by Howard Bashman



"Massive storm hits area": The Philadelphia Inquirer has this news update on the nasty weather I left behind in the Philadelphia area on my trip today to St. Louis. Just received an update from home, where everyone is fine, but the trip home this evening was a test of endurance for those in my neighborhood.
Posted at 22:03 by Howard Bashman



Divided three-judge Ninth Circuit panel rejects tobacco companies' compelled speech claim: In this decision issued today, three tobacco companies contended that the State of California violated their First Amendment rights by imposing a surtax on cigarettes and then using some of the proceeds of that surtax to pay for advertisements that criticize the tobacco industry. By a vote of 2-1, the Ninth Circuit has now rejected that argument.
Posted at 17:56 by Howard Bashman



In other news from The AP: Now available online are articles headlined "Gov't to Appeal Ruling on Abortion Measure" and "Moussaoui Asks Full Court to Weigh Appeal."
Posted at 17:38 by Howard Bashman



Additional coverage from the wire services of today's U.S. Supreme Court grants of review: Today's Order List can be accessed at this link.

Gina Holland of The Associated Press reports that "Court Takes on Question of Seizing Land." And in other coverage from The AP, "High Court to Hear Case by Cochran Client"; "Supreme Court Takes Up Okla. Voting Case"; and "Supreme Court to Hear Pa. Death Row Appeal."

James Vicini of Reuters reports that "Supreme Court to Decide Disability Law on Cruise Ships" and "US court to review taking property for development." And in other coverage from Reuters, "Court to Decide Limits on State Primary Voting"; "Court to Decide Johnnie Cochran Protester Case"; and "Supreme Court Refuses to Put Nader on Oregon Ballot."
Posted at 17:26 by Howard Bashman



See you in St. Louis: New posts will appear later today, because now I must travel to St. Louis, Missouri, where I will be the keynote speaker this evening at a dinner that kicks-off a conference hosted by the U.S. Court of Appeals for the Eighth Circuit and the Federal Judicial Center on the future of electronic filing in the U.S. Courts of Appeals.

The next time I will be making a presentation at an event that offers CLE credit will be in New York City on November 11th and 12th, 2004 at DRI's fifth Appellate Advocacy Seminar. As the brochure for the seminar reveals, at the DRI event I will be part of a quite distinguished faculty of consisting of appellate judges, law professors and other appellate practitioners. Online registration for the DRI seminar is available via this link.
Posted at 13:01 by Howard Bashman



"Cochran Case Heads to Supreme Court": The Associated Press provides this report.
Posted at 11:14 by Howard Bashman



"Court revives voting machine lawsuit": This article appears today in The Miami Herald. And The Tallahassee Democrat today contains an article headlined "Separate victories in ballot lawsuits; Suits seek printouts of touch-screen votes."
Posted at 10:53 by Howard Bashman



"Lawmaking not a role for judges": Columnist Jim Wooten has this op-ed today in The Atlanta Journal-Constitution.
Posted at 10:51 by Howard Bashman



"US court to decide disability law on cruise ships": James Vicini of Reuters provides this report.
Posted at 10:49 by Howard Bashman



"Chief justice calls for bylaw revision; State Supreme Court's Alex Bryner wants an update": The Anchorage Daily News contains this article today.
Posted at 10:48 by Howard Bashman



"U.S. captive is to be flown back to Saudi Arabia; Captured in Afghanistan, the man was held without charges since'01": This article appears today in The Richmond Times-Dispatch.
Posted at 10:48 by Howard Bashman



"Court Takes on Question of Seizing Land": The AP's Hope Yen, who joins Gina Holland in covering the U.S. Supreme Court for that wire service, provides this report.
Posted at 10:47 by Howard Bashman



"Cruise Lines, Disabled Spar Over Accessibility; A California woman's suit says U.S. law should apply; Foreign operators dispute that claim": This article previewing a case in which the U.S. Supreme Court granted review this morning appears today in The Los Angeles Times.
Posted at 10:31 by Howard Bashman



"Court to Hear ADA Suit Over Cruise Ships": Hope Yen of The Associated Press provides this report. And Lyle Denniston reports that the Court, among the eight cases it agreed to review this morning, has granted certiorari in a much-anticipated eminent domain case from Connecticut. More details to follow.
Posted at 10:16 by Howard Bashman



"Tribe admits not crediting author; Harvard scholar publicly apologizes": The Boston Globe contains this article today.
Posted at 10:01 by Howard Bashman



"Harvard law prof admits swiping phrase from book": This article appears today in The Boston Herald.
Posted at 07:02 by Howard Bashman



Today in The Raleigh News & Observer: The newspaper contains articles headlined "Miller's widow charged; Woman faces first-degree murder count in arsenic poisoning" and "Miller's family, friends await justice; Arrest brings tangled responses."

Relatedly, The Charlotte Observer reports today that "Widow charged in arsenic death; Kontz focus of police suspicion since husband died in 2000."
Posted at 07:00 by Howard Bashman



"Kline signs on to Ten Commandments legal battle": The Lawrence (Kan.) Journal-World today contains an article that begins, "Kansas Atty. Gen. Phill Kline has entered the legal battle to maintain public displays of the Ten Commandments."
Posted at 06:58 by Howard Bashman



The San Francisco Chronicle is reporting: In today's newspaper, an article is headlined "GOP urges a vote on same-sex marriage ban; Some see it as effort to stress gay issues."

And Bob Egelko reports that "U.S. won't try to ban hemp foods, oils."
Posted at 06:32 by Howard Bashman



Monday, September 27, 2004
"Initiative Fight Puts Focus on Felons; Proposition 66 would make fewer offenders subject to three-strikes law; Debate is emotional": The Los Angeles Times contains this article today.
Posted at 23:19 by Howard Bashman



"Gay marriage backers focus on Ore. battle": This article appears today in The Boston Globe. And The Washington Times reports today that "Nine states vying in gay 'marriage' legalization race."
Posted at 23:03 by Howard Bashman



In Tuesday's issue of The New York Times: An article will report that "Voters in 10 of 11 States Are Seen as Likely to Pass Bans of Same-Sex Marriages."

And Adam Liptak will have an article headlined "Reporters Put Under Scrutiny in C.I.A. Leak."
Posted at 22:58 by Howard Bashman



"High Court Clerks Bemoan 'Bush v. Gore' Revelations; Scores of former Supreme Court law clerks criticize those who gave Vanity Fair details about Court divisions in case": Tony Mauro has this article online at law.com (no subscription required).
Posted at 22:41 by Howard Bashman



Another Justice Sandra Day O'Connor bobblehead doll goes up for auction online at eBay: After a short lull, those in the market for this latest Green Bag creation have another opportunity to try to become the highest bidder. As of this moment, the item has received only one bid, for a mere $15.00. This is a ten-day listing, and nearly nine days of the auction remain. The auction is scheduled to end on Wednesday, October 6, 2004 (the first Wednesday in October) at 7:18 p.m. eastern time. The eBay listing is accompanied by three photos of the doll, including an extreme close-up of the cow bobblehead.

Earlier this month, Justice O'Connor bobblehead dolls sold on eBay for $300.00 and $285.00.
Posted at 21:20 by Howard Bashman



"Ninth Circuit to Reconsider En Banc Whether Amount Of Gemstar Executive Buyout Was 'extraordinary'": This article appears today in The Metropolitan News-Enterprise.
Posted at 21:13 by Howard Bashman



"Hamdi: The Price of Freedom is High." Lyle Denniston has this post online at "SCOTUSblog." As I noted earlier today, the agreement to release Yaser Esam Hamdi from the custody of the United States government can be accessed here.
Posted at 21:06 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined:
Posted at 19:30 by Howard Bashman



Dead man appears to point finger at wife of murder victim: The News & Observer of Raleigh, North Carolina offers a news update headlined "Wife indicted in arsenic death." In earlier coverage, that newspaper reported back in May 2004 that "Suicide victim's tale will be told; Court order forces a dead man's lawyer to surrender what his client told him about a researcher's death." You can access my earlier coverage of this matter, from August 2003, at this link.
Posted at 19:23 by Howard Bashman



"All eyes on aging justices; As retirements loom, next president could reshape high court": This article appears today in The Sacramento Bee.
Posted at 19:21 by Howard Bashman



"Pitcairn Island's splendid isolation shattered by unwelcome arrival of 'malicious gossip-mongers'": Tuesday's issue of The Independent (UK) provides this report on the sex-crimes trial on Pitcairn Island. And a few days ago, that newspaper offered a related report headlined "No dancing or garlands on the isle that lost its 'joie de vivre.'"
Posted at 17:52 by Howard Bashman



"Disabilities Act doesn't cover Web, court says": Declan McCullagh of c|net News.Com provides this report.
Posted at 17:48 by Howard Bashman



Reuters is reporting: Now available online are articles headlined "US Court: Gov't Ban on Erotic Dance Moves Too Broad" and "Outlook Dims for Asbestos Reform in Senate."
Posted at 17:14 by Howard Bashman



"Federal appellate arguments as sporting events": Law Professor Tung Yin offers this post at "The Yin Blog."
Posted at 16:45 by Howard Bashman



"Nader Dispute Lands at Supreme Court": Gina Holland of The Associated Press provides this report.
Posted at 16:25 by Howard Bashman



"Rematch: Bush v. Gore, Round 2." Jeffrey Rosen will have this essay in the October 4, 2004 issue of The New Republic.
Posted at 16:18 by Howard Bashman



"Trial Ordered in Fla. E-Ballot Lawsuit": The Associated Press provides this report on the ruling of the U.S. Court of Appeals for the Eleventh Circuit that I noted earlier this afternoon.
Posted at 15:10 by Howard Bashman



"U.S. to Release Hamdi to Saudi Arabia Thursday": James Vicini of Reuters provides this report.
Posted at 14:09 by Howard Bashman



Three-judge Ninth Circuit panel upholds as lawful the vast majority of provisions contained in the adult entertainment ordinance of Maricopa County, Arizona: The panel did, however, "hold unconstitutional the prohibition on specified sexual activity" contained in the ordinance. You can access today's ruling at this link.
Posted at 14:00 by Howard Bashman



"Court: Ohio Should Have Held Election." The AP offers this report on the ruling of the U.S. Court of Appeals for the Sixth Circuit that I noted earlier today.
Posted at 13:42 by Howard Bashman



"Hamdi Expected to Be Freed by End of Week": The Associated Press provides this report. A copy of the agreement to release Yaser Esam Hamdi from custody can be viewed via this link.
Posted at 12:06 by Howard Bashman



U.S. Court of Appeals for the Eleventh Circuit orders federal district court to decide on the merits a constitutional challenge to Florida's touch-screen voting procedures: Today's opinion, by a unanimous three-judge panel, explains that:
Fifteen Florida counties use a paperless, touchscreen method of voting. As is alleged, these touchscreen systems do not produce a paper record of votes. Accordingly, the fifteen counties where they are employed lack a manual recount procedure, which is available in Florida's remaining fifty-two counties. In the federal claim, Plaintiffs allege this "non-uniform, differential standard" violates their rights to due process and equal protection under the Fifth and Fourteenth Amendments to the United States Constitution.
The federal district court had abstained from resolving this federal constitutional challenge on the merits. Today's ruling requires the district court to address the merits of the challenge.
Posted at 12:01 by Howard Bashman



"Administrative Order Regarding Blakely Cases": The U.S. Court of Appeals for the Eighth Circuit has today issued this administrative order.
Posted at 11:04 by Howard Bashman



"Can the Court clean up its Blakely mess?" That's the subject of this week's installment of "Debate Club," hosted by legalaffairs.org. The participants in this week's discussion are Law Professors Stephanos Bibas and Douglas Berman.
Posted at 11:04 by Howard Bashman



How Justice John Paul Stevens spent his summer vacation: Last Tuesday, The Associated Press published an article headlined "Justice Stevens Disputes Media Coverage." As I wrote in the post in which I first noted the article, "Justice John Paul Stevens has a beef with Dahlia Lithwick's op-ed entitled 'Off the Bench' published August 29, 2004 in The New York Times." The U.S. Supreme Court has yet to post online the text of Justice Stevens' speech. I have obtained a copy and have posted it online here (12-page PDF document).
Posted at 10:30 by Howard Bashman



An installment of "20 questions for the appellate judge" is somewhat less interesting without an interviewee: D.C. Circuit Judge Harry T. Edwards advised me, moments after receiving via email last Tuesday the "20 questions" that I had prepared for him to answer, that he no longer has time to participate as the October 2004 "20 questions for the appellate judge" interviewee.

The "20 questions" interview that I published earlier this month was the twentieth consecutive monthly "20 questions" interview. The feature is a favorite of mine and also of many of this blog's readers, yet it requires a considerable amount of effort from me in researching the interviewee and drafting the questions and from the interviewee in responding to the questions.

From the outset, I have expressed a willingness to continue the "20 questions" feature for as long as appellate judges are willing to participate as interviewees.

In order for the feature to continue, I must obtain a replacement October 2004 interviewee by this Friday, October 1, 2004. Any appellate judge willing to volunteer can do so by sending me an email, a process that can be initiated by clicking here.

I will provide the replacement interviewee with his or her questions in writing via email on Friday, October 8, 2004, the interviewee can have until Friday, October 22, 2004 to provide his or her answers, and the interview will be published online on Monday, October 25, 2004.

If I am unable to obtain a replacement October 2004 interviewee by this Friday, this web log's "20 questions for the appellate judge" feature will permanently come to an end after twenty quite remarkable installments in twenty months.
Posted at 09:40 by Howard Bashman



Isn't that special (election): A divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit this morning has issued a decision in which the majority opinion begins:
In this appeal, we conclude that Article I, section 2, clause 4 of the United States Constitution is mandatory, imposing upon a state executive the duty to issue a writ of election when one of her state's seats in the United States House of Representatives ("House") becomes vacant during a congressional term. Because Robert Taft, Governor of Ohio ("Governor Taft"), refused to issue a writ of election when one of Ohio's seats in the House became vacant due to the expulsion of James A. Traficant, Jr. ("Traficant") and more than five months remained before the next Congress would convene, we hold that Governor Taft violated Article I, section 2, clause 4 and denied the voters in Ohio's Seventeenth Congressional District, including members of the American Civil Liberties Union ("ACLU"), their rights to vote and to equal representation in violation of the Fourteenth Amendment. Accordingly, we REVERSE the district court's decision and REMAND so that the district court may award appropriate declaratory relief and attorney's fees to the ACLU.
Circuit Judge Karen Nelson Moore wrote the opinion of the court, in which Circuit Judge Boyce F. Martin, Jr. joined. Senior Circuit Judge James L. Ryan dissented.
Posted at 09:32 by Howard Bashman



A debate over the future of the U.S. Supreme Court: The Alliance for Justice has issued this press release noting a debate that will get underway in Washington, DC just moments from now. C-SPAN3 is scheduled to broadcast the debate live, and you can view it online via this link.
Posted at 09:26 by Howard Bashman



"Imperial Judges Could Pick The President -- Again": Stuart Taylor Jr. has this essay today in National Journal.
Posted at 09:23 by Howard Bashman



"Sentencing Tops High Court's New Term; Justices also to tackle disputes over beef ads, wine, marijuana": In what will likely be my final mention of Tony Mauro this morning, he previews the cases in which the U.S. Supreme Court has already granted review in his "Court Watch" column (subscription required) published today in Legal Times.
Posted at 09:16 by Howard Bashman



U.S. Supreme Court Justices remember Senior Eighth Circuit Judge Richard S. Arnold: The "Inadmissible" column found in today's issue of Legal Times contains an item by Tony Mauro noting Richard S. Arnold's death last week.

Mauro writes:
As a sign of Arnold's stature, eight of the nine Supreme Court justices issued statements after hearing of his death. "He performed exemplary service for the judiciary through his work on the Budget Committee of the Judicial Conference," said Chief Justice William Rehnquist in a statement. "A brilliant, brilliant man, Judge Arnold was a model of humility and self-deprecation," said Justice Clarence Thomas, who as the 8th Circuit's "circuit justice" saw him often at conferences. Justice Ruth Bader Ginsburg, herself a cancer survivor, said, "He coped with his illness with unrelenting courage. Others, including me, gained strength from his example."

Said Justice Antonin Scalia: "His carefully reasoned and beautifully written opinions were models of the art of judging. He has been a friend of mine since the days when he finished ahead of me (and first in the class) at Harvard Law School." Justice Stephen Breyer called Arnold "a great judge and a marvelous human being," and Justice Anthony Kennedy said, "It is of great importance to the federal judiciary that it can continue to attract jurists of the stature of the late, splendid Richard Arnold. His intellectual interests were vast, his character upright, and his search for truth and justice unyielding."

Justice Sandra Day O'Connor said, "He always contributed his time and effort to improve the judiciary and to support efforts to help other judges around the world improve their own systems." Added Justice John Paul Stevens: "Richard Arnold was a great judge, a true scholar, a wonderful human being, and an excellent golfer. I enjoyed every minute that I spent with him and will surely miss him."
The complete text of today's "Inadmissible" column is available at this link (subscription required).
Posted at 09:07 by Howard Bashman



"Clerks Bemoan Breach of Confidentiality; Scores of former high court clerks, two former attorneys general, and others criticize disclosure in Vanity Fair article": Tony Mauro has this article (subscription required) in today's issue of Legal Times. "SCOTUSblog" recently posted online the Vanity Fair article, and you can access it via this link.
Posted at 09:03 by Howard Bashman



It's the first Monday before the first Monday in October: The U.S. Supreme Court today holds its "long conference," at which the Justices consider whether to grant review in cases that have accumulated over the Court's summer recess.

Although not until next Monday will we learn the identities of the cases in which review has been denied, the Court could issue as early as later today or any time tomorrow a list of cases in which certiorari has been granted. law.com's Tony Mauro today has this preview of the cases in which a grant of review is most likely.
Posted at 08:55 by Howard Bashman



"Prof Admits to Misusing Source; Tribe's apology marks third instance of HLS citation woes in past year": The Harvard Crimson contains this article today.
Posted at 07:02 by Howard Bashman



"Supreme Court could have last word on stadium": The Fort Worth Star-Telegram today contains an article that begins, "The U.S. Supreme Court, whose justices are most likely oblivious to whether Arlington becomes the home of the Cowboys, could make a decision today that would affect use of eminent domain for such projects." The article appears to overlook that one Justice in particular is a huge Dallas Cowboys fan.
Posted at 06:52 by Howard Bashman



"Bench mark: Election winner will have lasting impact." This article appears today in The Minneapolis Star Tribune.
Posted at 06:43 by Howard Bashman



"Next President Will Pick Scores of Judges": Anne Gearan of The Associated Press provides this report.
Posted at 06:41 by Howard Bashman



"Some accused of music downloading turn to bankruptcy": This article appears today in The St. Louis Post-Dispatch.
Posted at 06:32 by Howard Bashman



Sunday, September 26, 2004
In today's edition of The Los Angeles Times: An article is headlined "Case Hinges on Material Witness; In a high-stakes lawsuit against Union Carbide, Exhibit A is an asbestos the company now says is safe."

And Billmon has an op-ed entitled "Blogging Sells, and Sells Out."
Posted at 23:06 by Howard Bashman



"Bad law vs. big tobacco": Jay Ambrose has this op-ed today in The Washington Times.
Posted at 22:57 by Howard Bashman



"The Peculiar Institution": In today's edition of The New York Times Sunday Book Review, Slate's William Saletan has this review of two same-sex marriage-related non-fiction books.
Posted at 22:45 by Howard Bashman



"Ruling goes against 'Choose Life' tag": The Tennessean yesterday contained an article that begins, "A federal judge struck down Tennessee's 'Choose Life' specialty license plate yesterday after determining that the state is engaging in unconstitutional 'viewpoint discrimination.'"
Posted at 22:41 by Howard Bashman



"Hemp Industry on Fire: Exploding marketplace stoked by DEA lawsuit." Valerie Vande Panne has this essay online at Reason.
Posted at 22:24 by Howard Bashman



"Judge Richard Arnold dies at 68; Friends, colleagues mourn loss of legal scholar from Texarkana": This article appears today in The Texarkana Gazette.
Posted at 20:47 by Howard Bashman



"Justice Is Blind: A Reader's Guide to the Vanity Fair Article." The blog "Underneath Their Robes" offers this post.
Posted at 18:02 by Howard Bashman



"Clerkships: the nine master types." Jeremy Blachman has this amusing essay in the current issue of the Harvard Law Record.
Posted at 17:57 by Howard Bashman



On this morning's broadcast of NPR's "Weekend Edition - Sunday": The broadcast contained segments entitled "Tobacco Trial to Get into Specifics" and "Bloggers Keep Eye on Presidential Campaigns" (Real Player required).
Posted at 17:42 by Howard Bashman



"Children in court may not know why; Few younger than 13 tested for competency despite recent efforts": This article appears today in The Richmond Times-Dispatch.
Posted at 17:38 by Howard Bashman



"Amputee ensnared by a legal web": Houston Chronicle columnist Rick Casey has this essay today in that newspaper.
Posted at 17:37 by Howard Bashman



In judicial election news: From West Virginia, The Sunday Gazette-Mail of Charleston reports that "Justice says ads factually wrong; Group continues to target McGraw; Starcher defends."

And from Montana, The Great Falls Tribune reports that "Nelson's decisions draw fire, praise," while The Billings Gazette reports that "Nelson holds slim lead over Younkin in court race."
Posted at 17:28 by Howard Bashman



"Christians Use Gay Marriage to Seek Voters": The Associated Press provides this report, which includes mention of possible U.S. Supreme Court vacancies.
Posted at 17:22 by Howard Bashman



"Rehearing sought on tax breaks; Kentucky, 3 other states fear job loss": The Courier-Journal of Louisville, Kentucky today contains an article that begins, "The 6th Circuit Court of Appeals has until Thursday night to consider a ruling that outlawed certain corporate tax breaks in Ohio and threatens similar programs in Kentucky, Tennessee and Michigan."
Posted at 13:02 by Howard Bashman



"Butler's life story offers guide to scaling obstacles; State Supreme Court justice brings inspiring words to NAACP event": The Milwaukee Journal Sentinel contains this article today.
Posted at 13:00 by Howard Bashman



Female firsts: The Houston Chronicle today contains an article headlined "Legal strides for women came with time; 50 years ago, Houstonian was the first female juror to lawfully sit on Texas panel."

And The Portland Press Herald today contains an article headlined "She measured up to a historic role" about Maine's first female judge.
Posted at 12:58 by Howard Bashman



"They Dress to Express: Political T shirts--on the right and the left--pit teenagers against their school administrators." This article appears in the October 4, 2004 issue of Newsweek.
Posted at 12:57 by Howard Bashman



"Grandparents seek more family rights": The Daytona Beach News-Journal contains this article today.
Posted at 12:56 by Howard Bashman



"Killers' deals to avoid death put Oregon's system on trial; The outcomes of two high-profile cases frustrate both critics and supporters of the capital punishment process": This article appears today in The Oregonian.
Posted at 12:55 by Howard Bashman



"Legal stars square off in Pelosi trial": Newsday contains this article today.
Posted at 12:53 by Howard Bashman



"Voters may shape high court; Four justices could retire": The Arizona Republic contains this article today.

The October 4, 2004 issue of Newsweek contains an item headlined "Supreme Court: And the Nominees Are..."

And Howard Mintz of The San Jose Mercury News today has an article headlined "Judicial picks hang on election results."
Posted at 12:22 by Howard Bashman



"Ruling hampers court cases; Decision sets limits on police testimony": This article appears today in The Clarion Ledger of Jackson, Mississippi.
Posted at 12:12 by Howard Bashman



"When five voted for millions": St. Petersburg Times columnist Robyn E. Blumner today has this essay concerning a certain Vanity Fair article that "SCOTUSblog" has made available via this link.
Posted at 12:08 by Howard Bashman



"On one page, nine naked (full frontal naked!) Justices of the U.S. Supreme Court." So begins Henry Kisor's column published today in The Chicago Sun-Times.
Posted at 12:03 by Howard Bashman



"New twist: ACLU vs. free press." Phil Lewis has this op-ed today in The Naples (Fla.) Daily News.
Posted at 12:00 by Howard Bashman



"Supreme Court set to consider hearings in key cases; Justices return to decide a city's power to take a person's home": This article appears today in The Houston Chronicle.
Posted at 11:55 by Howard Bashman



"Half of Pitcairn Island's adult male population goes on trial": The New Zealand Herald today contains an article that begins, "Pitcairn Island in the South Pacific will host one of the most sensational trials in British legal history this week, with seven men facing nearly 100 charges of rape and child sex abuse dating back to the 1960s."

In other recent coverage, The Guardian (UK) reported yesterday that "Judges arrive on Pitcairn as abuse trials loom." The Independent (UK) reported yesterday that "After 200 years, the law arrives on Bounty Island; Half the adult males in Pitcairn, the tiny island community created by Fletcher Christian, are going on trial over sex abuse." And the Australian Broadcasting Corporation reported yesterday that "Pitcairn Island prepares for sexual abuse trial" (or listen here using Real Player).
Posted at 11:48 by Howard Bashman



"Was new indictment dictated by strategy? Lawyers say charging deported USF teacher Mazen Al-Najjar may really be about the Sami Al-Arian case." This article appears today in The St. Petersburg Times. The home page of that newspaper's web site is, as you would expect, largely devoted this morning to the imminent arrival of Hurricane Jeanne.
Posted at 11:44 by Howard Bashman



"Richard S. Arnold, 68, Judge Once Eyed for Supreme Court, Dies": Yesterday's edition of The New York Times contained this obituary written by Neil A. Lewis.
Posted at 09:20 by Howard Bashman



"The Big Mahatma: Laurence Tribe and the problem of borrowed scholarship." Joseph Bottum has this article in the October 4, 2004 issue of The Weekly Standard.
Posted at 07:40 by Howard Bashman



Saturday, September 25, 2004
"What's the U.S. Court of Appeals for the Second Circuit?" Someday that may be the question on "Jeopardy" corresponding to the answer "The first U.S. Court of Appeals to offer its own publicly available web log."
Posted at 23:33 by Howard Bashman



Same-sex marriage-related news from here and there: From Georgia, The Atlanta Journal-Constitution today contains an article that begins, "A Fulton County judge hinted Friday that she may be unwilling to halt a referendum to ban gay marriage, citing a Georgia Supreme Court ruling in an 84-year-old case." And The Gwinnett Daily Post reports that "Judge pulls surprise in gay marriage lawsuit."

From Canada, meanwhile, The Toronto Globe and Mail reports today that "Nova Scotia allows gay marriages; Court ruling means province joins four others and Yukon in recognizing same-sex unions." And The Toronto Star reports that "N.S. backs same-sex marriages; Sixth province to make unions legal." Comparing the headlines from these two Canadian newspapers raises a question -- is or isn't Yukon a Canadian province? The answer appears to be "no" (details available here).
Posted at 23:14 by Howard Bashman



"Ads may affect race; Warren McGraw could be hurt by campaign spots": The Saturday Gazette-Mail of Charleston, West Virginia today contains an article that begins, "Once considered a lock for re-election, state Supreme Court Justice Warren McGraw is looking vulnerable."
Posted at 23:09 by Howard Bashman



"Long Road From a Prison Cell to a Safe Haven on the Field": William C. Rhoden has this "Sports of the Times" column about Marcus Dixon in today's edition of The New York Times.
Posted at 23:05 by Howard Bashman



"High court asked to review abuse suit against LDS": This article appears today in The Salt Lake Tribune.
Posted at 23:01 by Howard Bashman



"Teenage Sniper to Plead Guilty in Two Shootings": Adam Liptak has this article today in The New York Times.

In other coverage, The Washington Post reports that "Malvo To Admit Guilt in Va. Cases; Defense Lawyer Says Spotsylvania Won't Seek Death." The Richmond Times-Dispatch reports that "Malvo waives appeals; Sniper to plead guilty in slaying; defense team seeks more deals." And The Baltimore Sun reports that "Convicted sniper to plead guilty to 2nd murder charge; Malvo hopes to avoid death penalty, lawyers say."
Posted at 22:57 by Howard Bashman



"Chief Justice William Rehnquist was grinning from ear": So begins the third item contained in today's "Names and Faces" column in The Washington Post.
Posted at 22:55 by Howard Bashman



Available online from National Public Radio: Yesterday evening's broadcast of "All Things Considered" contained a segment entitled "Calif. Voters Asked to Revise '3 Strikes' Law."

And this evening's broadcast of that program contained a segment entitled "Tort Reform as a Campaign Issue."

Real Player is required to launch these audio segments.
Posted at 22:50 by Howard Bashman



Available online from law.com: Tony Mauro reports that "Supreme Court Ponders Religion's Place; Justices consider First Amendment cases on religious rights of inmates and public display of Ten Commandments."

Marcia Coyle reports that "House Votes to Bring Bite Back to Rule 11; Measure deemed attempt at 'tort reform through the back door.'"

And in other news, "Calif. Supremes Slap No-Show Lawyers With Contempt; Lawyer who never made oral arguments must pay $250; his ex-boss is out $1,000."
Posted at 22:45 by Howard Bashman



"SEC gets a second try on Gemstar exec pay; Agency says funds should be frozen during fraud probe": Bob Egelko has this article today in The San Francisco Chronicle. And law.com reports that "9th Circuit to Rehear Suit Over Executives' Exit Pay."
Posted at 22:43 by Howard Bashman



"Report says state leads in 3-strikes convictions; Critics say anti-incarceration group skews facts": The Ventura County Star yesterday contained an article that begins, "California has scored four times as many convictions under its three-strikes-and-you're-out law than all other states with similar sentencing guidelines combined, according to a report released Thursday by an anti-incarceration group." A related graphic can be viewed by clicking here.
Posted at 22:38 by Howard Bashman



"Guantanamo Tribunal Process in Turmoil": Neil A. Lewis will have this article in Sunday's issue of The New York Times.
Posted at 21:15 by Howard Bashman



"Odds are highest court won't hear Terri's Law; The ruling in the Schiavo case lacks federal issues that would concern the U.S. Supreme Court, legal experts say": This article appears today in The St. Petersburg Times.
Posted at 21:10 by Howard Bashman



The Arkansas Democrat-Gazette today contains the obituary of Senior Eighth Circuit Judge Richard S. Arnold: The lengthy obituary appears about one-third of the way down from the top of this web page.
Posted at 21:06 by Howard Bashman



"State's highest court to hear town case on public records": The Greenwich (Conn.) Time on Wednesday published an article that begins, "Perhaps sensing its potentially far-reaching ramifications after the Sept. 11, 2001, terrorist attacks, the state's highest court will now decide a landmark public records case involving access to aerial reconnaissance photographs and maps of Greenwich." The article has generated this discussion thread at Slashdot.
Posted at 20:58 by Howard Bashman



"The world has bigger problems than L.A.'s cross": Gerald Plessner has this op-ed today in The Pasadena Star-News.
Posted at 20:25 by Howard Bashman



"Farmer paints Ten Commandments on barn": The Associated Press provides this report, in which it is noted that "Jeff Gamso, legal director of the American Civil Liberties Union of Ohio, said there is no apparent infringement on anyone's rights because Power is expressing himself on private property."
Posted at 20:24 by Howard Bashman



"I helped tobacco firm destroy documents: lawyer." The Age of Melbourne, Australia contains this article today.
Posted at 20:22 by Howard Bashman



"School: Pierced teen owes time; boy calls rule unconstitutional." This article appears today in The Atlanta Journal-Constitution.
Posted at 20:20 by Howard Bashman



"Richard Arnold, U.S. Court of Appeals judge, dead at 68": The Associated Press provides this obituary. Judge Arnold was the November 2003 interviewee in this blog's "20 questions for the appellate judge" feature.
Posted at 20:18 by Howard Bashman



"Jury trials fade, and lawyers take up the case": This article appears today in The Philadelphia Inquirer.
Posted at 20:17 by Howard Bashman



The Houston Chronicle is reporting: Today's newspaper contains articles headlined "Cruising uncharted waters: A sail through paradise didn't turn out how one handicapped passenger planned, and now the Supreme Court will decide who's liable" and "Ken Lay takes his case to the public; Some question the wisdom of his media blitz; But prosecutors? They say, keep talking."
Posted at 20:15 by Howard Bashman



"Potomac Watch: Justices will pick up with 'mess' from last term." The Seattle Post-Intelligencer contains this article today.
Posted at 20:14 by Howard Bashman



"Fear and Laptops on the Campaign Trail": This article about blogs that focus on politics is the cover story of tomorrow's issue of The New York Times Magazine.
Posted at 20:11 by Howard Bashman



Friday, September 24, 2004
"Lawyers Held in Contempt by S.C. for Skipping Oral Argument": This article appears today in The Metropolitan News-Enterprise. I previously mentioned this matter last night in a post you can access here.
Posted at 17:07 by Howard Bashman



"Fellow alumni speak up for law grad hounded by feds; Efforts to keep $61,000 from reported prostitute vex Stanford classmates": Josh Richman has this article today in The Oakland Tribune. I previously mentioned this matter in a post you can access here.
Posted at 16:54 by Howard Bashman



"Nader attorney resigns over pay; Samuel C. Stretton says the low-budget campaign of the presidential candidate can't afford his services": This article appears today in The Philadelphia Inquirer. And in somewhat related coverage, law.com reports today that "Nader's Lawyer 'Tortured the Law'; Judge's blistering criticism slams would-be presidential candidate's attorney."
Posted at 16:51 by Howard Bashman



"Commandments on display": The Daily Herald of Henry County, Georgia today contains an article that begins, "Downplaying the possibility of a court challenge, Henry County officials unveiled a framed copy of the Ten Commandments Thursday in the county courthouse."
Posted at 16:50 by Howard Bashman



In judicial campaign-related news from West Virginia: The Charleston Daily Mail today contains articles headlined "McGraw backers call 'emergency meeting'" and "Benjamin to continue ads on sex felon."
Posted at 16:48 by Howard Bashman



"Tobacco class action thrown out": The Australian Associated Press provides this report. And "The World Today" from the Australian Broadcasting Corporation reports that "Class action against tobacco companies thrown out."
Posted at 16:46 by Howard Bashman



"Feed-Tube Law Is Struck Down in Florida Case": The New York Times contains this article today. The Washington Post reports that "Fla. High Court Overrules Governor in Schiavo Case; Feeding Order Called An 'Encroachment.'" And The Los Angeles Times reports that "Florida Court Rules Against 'Terri's Law'; The state high court says the Legislature and Gov. Bush overstepped with a move to keep a woman in a vegetative state alive."

In local coverage, The Tallahassee Democrat reports that "State Supreme Court rejects 'Terri's Law.'" The St. Petersburg Times contains articles headlined "Court strikes down Terri's Law; Lawyers for Gov. Jeb Bush can seek a rehearing of the Florida high court's unanimous ruling or appeal it to the U.S. Supreme Court"; "Law's supporters disappointed but not surprised"; "Q&A: Schiavo story is long, with ending still unwritten"; and "Pariente is second woman named Florida chief justice." The Tampa Tribune reports that "Florida's High Court Tosses Out Terri's Law." The Miami Herald reports that "Justices overturn 'Terri's Law'; Florida's Supreme Court chastised the governor and Legislature, calling the law keeping the brain-damaged Terri Schiavo alive unconstitutional." And The Orlando Sentinel reports that "Justices overturn law in right-to-die case."
Posted at 16:35 by Howard Bashman



"Schofield claims ruling nullifies long sentence": This article appears today in The Portland (Me.) Press Herald. And in other coverage, The Morning Sentinel reports that "Top state court begins review of Schofield manslaughter conviction."
Posted at 16:33 by Howard Bashman



"Pitcairn Island sex trial slated for Monday could destroy Bounty mutineers community": Jurist's "Paper Chase" blog provides this report.
Posted at 16:32 by Howard Bashman



"Canada's high court aims for high-tech future; Supreme Court seeks cash for upgrade; New judicial advisory group launched": The Toronto Star contains this article today.
Posted at 16:28 by Howard Bashman



"Attorney Defends Affirmative Action; Talks About Leading U. Michigan Supreme Court Case": This article appears today in The Hoya of Georgetown University.
Posted at 16:13 by Howard Bashman



"Broward judge accepts reprimand, $15,000 fine for unsigned e-mail": The South Florida Sun-Sentinel today contains an article that begins, "Broward County Court Judge Robert F. Diaz has accepted that he should be publicly reprimanded, fined $15,000 and suspended for two weeks without pay for firing off an anonymous e-mail to another judge that resulted in a criminal investigation." And The Miami Herald reports that "Judge faces penalty over e-mail."
Posted at 16:09 by Howard Bashman



"Prominent Law alumnae honored": The Daily Pennsylvanian contains this article today.
Posted at 16:00 by Howard Bashman



"Scalia Lottery Hits Tech Glitch; IOP lotteries closed-circuit coverage, lifting false hopes for some students": This article appears today in The Harvard Crimson.
Posted at 15:44 by Howard Bashman



"A Crucial But Largely Ignored 2004 Campaign Issue: The Next President Is Likely to Appoint At Least Three Supreme Court Justices." FindLaw columnist John W. Dean has this essay today.
Posted at 15:40 by Howard Bashman



"House OKs limit on pledge cases; It would bar federal courts from hearing 'under God' suits": The Sacramento Bee today contains an article that begins, "Worried that Sacramento activist Michael Newdow will prevail if he again challenges the constitutionality of the Pledge of Allegiance in federal court, the House voted Thursday to eliminate that risk."

In other coverage, The New York Times reports that "House Passes Court Limits on Pledge." The Boston Globe reports that "House votes to prevent court review of Pledge." And The Washington Times reports that "House restricts rulings on Pledge."

You can access at this link the text of the proposed new law as passed yesterday on a vote of 247 to 173 by the House of Representatives.
Posted at 15:32 by Howard Bashman



"Heinzes Fight Bid to Unseal Estate Records; Attorneys for Kerry's wife battle newspapers over details of probate after first husband died": This article appears today in The Los Angeles Times. The Morning Call of Allentown, Pennsylvania reports today that "Decision on opening Heinz estate records could come close to presidential election; Morning Call among papers that want to report on wealth of his widow, Teresa Heinz Kerry." And The Pittsburgh Post-Gazette reports today that "Judge here to decide on opening Heinz will."
Posted at 15:20 by Howard Bashman



Choose litigation: The Tennessean today reports that "'Choose Life' court hearing centers on speech." And The American Civil Liberties Union yesterday issued a press release entitled "ACLU and Planned Parenthood Ask Tennessee Court to Block Anti-Choice License Plate." The ACLU's brief in support of the organization's motion for summary judgment can be accessed here.
Posted at 15:10 by Howard Bashman



U.S. Court of Appeals for the Eleventh Circuit declines to resolve whether the Americans with Disabilities Act applies to the internet: The conclusion of today's opinion states:
In declining to evaluate the merits of this case, we are in no way unmindful that the legal questions raised are significant. The Internet is transforming our economy and culture, and the question whether it is covered by the ADA -- one of the landmark civil rights laws in this country -- is of substantial public importance. Title III's applicability to web sites -- either because web sites are themselves places of public accommodation or because they have a sufficient nexus to such physical places of public accommodation -- is a matter of first impression before this Court. Unfortunately, this case does not provide the proper vehicle for answering these questions.
You can access the complete opinion at this link.
Posted at 14:55 by Howard Bashman



Available online from National Public Radio: Yesterday's broadcast of "Morning Edition" contained a segment entitled "U.S. to Release 'Enemy Combatant' to Saudi Arabia" featuring Nina Totenberg. That broadcast also contained a segment entitled "Tobacco Industry Answers Fraud Charges."

And yesterday's broadcast of "Talk of the Nation" contained a segment entitled "Inmates May See Expanded DNA Testing."

Real Player is required to launch these audio files.
Posted at 14:01 by Howard Bashman



Survivor the television show survives challenge from Survivor the band: A unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit today issued an opinion that concludes:
Sullivan, through his band Survivor, has been fortunate enough to have a successful rock band, succeeding in a business where many fail. CBS, through its show Survivor, has (for better or for worse) revolutionized the world of reality television. Both Sullivan and CBS are using the same mark, but we hold that there is no likelihood of confusion in the minds of consumers.
You can access the complete opinion at this link. The band is of course most well-known for the hit song "Eye of the Tiger."
Posted at 13:52 by Howard Bashman



U.S. Court of Appeals for the Ninth Circuit grants rehearing en banc in case where three-judge panel's decision had been described as a "blow to SEC effort to curb exec fraud": You can access today's order granting rehearing en banc at this link, and the ruling of a divided three-judge Ninth Circuit panel can be accessed here.

Back in May 2004, Bob Egelko of The San Francisco Chronicle reported on the three-judge panel's ruling in an article headlined "Gemstar ruling rejected; Blow to SEC effort to curb exec fraud."
Posted at 13:43 by Howard Bashman



"Court Rules a Horse Is Not a Vehicle": The Associated Press reports here that "The state Supreme Court ruled that Pennsylvania's drunken driving law can't be enforced against people on horseback, a decision that inspired the dissenting justice to wax poetic."

Justices serving on the Supreme Court of Pennsylvania issued a total of three opinion in the case. You can access the majority opinion here, a concurring opinion here, and the partially rhyming dissent here.

Unlike the last time that this particular Pa. Supreme Court justice employed rhyme in an opinion, this time none of his colleagues appear to have criticized him for doing so. More details on that earlier episode can be accessed at this link.
Posted at 12:05 by Howard Bashman



"Hon. Richard S. Arnold, R.I.P." Law Professor Richard W. Garnett, who clerked for Judge Arnold before going on to clerk for Chief Justice William H. Rehnquist, has this post at the blog "Mirror of Justice."
Posted at 11:29 by Howard Bashman



"Legal Groups to Track Judicial Elections": The Associated Press provides this report.
Posted at 10:33 by Howard Bashman



"Arkansas jurist Richard Arnold dead at 68; Esteemed career spanned 25 years on federal district and appellate benches": The Arkansas Democrat-Gazette contains an article reporting this very sad news today. The article begins, "Richard Sheppard Arnold, the bow-tied Arkansas jurist whose inimitable legal brilliance and scrupulous fairness landed him on the short list for a seat on the U.S. Supreme Court, has died."

Judge Arnold was the November 2003 interviewee in this blog's "20 questions for the appellate judge" feature.
Posted at 10:02 by Howard Bashman



Thursday, September 23, 2004
"Man Involved in Bar Fight TKO'd by 9th Circuit": law.com offers this report on a ruling that the U.S. Court of Appeals for the Ninth Circuit issued today.
Posted at 23:04 by Howard Bashman



"Fla. Supreme Court Declares 'Terri's Law' Unconstitutional": law.com provides this report. And The Miami Herald offers a news update headlined "Florida Supreme Court rules in Schiavo case that 'Terri's Law' is unconstitutional."

You can access today's ruling of the Supreme Court of Florida at this link. And you can access the text of the statute in question at this link.
Posted at 22:54 by Howard Bashman



Don't feed the terrorists: Today a divided three-judge panel of the U.S. Court of Appeals for the Third Circuit issued a decision addressing "whether providing food and setting up shelter for people engaged in terrorist activities constitutes affording 'material support' within the meaning of the Immigration and Nationality Act." Senior Circuit Judge Ruggero J. Aldisert, joined by Circuit Judge Samuel A. Alito, Jr., answered that question in the affirmative.

Circuit Judge D. Michael Fisher dissented in an opinion that concludes:
That the BIA’s finding cannot be upheld is underscored through the government's suggestion at oral argument that the provision of a cup of water to a terrorist could constitute "material support." I have no doubt that under the right facts, the provision of a single glass of water to a terrorist could be material support. If bin Laden were dying of thirst and asked for a cup of water to permit him to walk another half mile and detonate a weapon of mass destruction, such support would be "material" to terrorism. But those facts are not before us, and permitting a mere cup of water, without more, to be "material support" reads "material" out of the statute.
You can access the complete ruling at this link.
Posted at 22:43 by Howard Bashman



Supreme Court of California penalizes two attorneys who failed to appear for an oral argument before that court: You can access today's decision at this link.
Posted at 22:38 by Howard Bashman



"Mistrial in pepper spray suit; Jurors deadlock 6-2 in favor of demonstrators": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 22:35 by Howard Bashman



"Nevermind: Hamdi wasn't so bad after all." Dahlia Lithwick has this jurisprudence essay online at Slate.
Posted at 22:22 by Howard Bashman



"SCOTUSblog" posts the Vanity Fair article that promises a behind-the-scenes look at Bush v. Gore based on interviews with law clerks to the U.S. Supreme Court's Justices: You can access the article, in PDF format, via this link.
Posted at 22:01 by Howard Bashman



Programming note: I'm scheduled to return home from New Bern, North Carolina this evening. Additional posts will appear thereafter.
Posted at 07:20 by Howard Bashman



"Citing China's 1-child policy, court allows mom to stay": This article appears today in The Chicago Tribune. I first noted yesterday's ruling of the U.S. Court of Appeals for the Seventh Circuit last night in a post you can access here.
Posted at 07:00 by Howard Bashman



"Strip This Bill": The Washington Post contains this editorial today.
Posted at 06:58 by Howard Bashman



"Runaway courts": Newt Gingrich has this op-ed today in The Washington Times.
Posted at 06:56 by Howard Bashman



"Court to hear arguments in marriage amendment today": The Arkansas News Bureau provides this report.
Posted at 06:55 by Howard Bashman



"Candidate for Illinois high court gets low marks from attorneys": This article appears today in The St. Louis Post-Dispatch.
Posted at 06:54 by Howard Bashman



"Court throws Nader off ballot; Observers say ruling reduces Oregon’s value as swing state; fate of 6,000 overseas ballots unclear": The Salem Statesman Journal contains this article today.
Posted at 06:52 by Howard Bashman



"Opponents Say Republicans Plan Sequel to Patriot Act": This article appears today in The New York Times.
Posted at 06:48 by Howard Bashman



"Sentencing delayed in bank robbery case; Judge considers whether guidelines violate Constitution": The Rocky Mountain News contains this article today.

And from Rhode Island, The Providence Journal reports that "Cianci prison sentence defended; The government is fighting assertions that the terms given the former mayor and his one-time top aide were unconstitutional."
Posted at 06:44 by Howard Bashman



"Puffs on peace pipes hail court win": This article appears today in The Deseret Morning News. And The Salt Lake Tribune reports that "Activists offer thanks for peyote ruling."
Posted at 06:40 by Howard Bashman



And in other news from Ohio: The Associated Press reports that "Disciplinary counsel drops investigation of Supreme Court candidate."
Posted at 06:36 by Howard Bashman



The Cleveland Plain Dealer is reporting: Today's newspaper contains articles headlined "Court strikes down dog law; Statute aimed at vicious pets" and "Ex-Justice Douglas accused of racist comments; Unfair practices also alleged at civil service union."
Posted at 06:34 by Howard Bashman



"Panel OKs Ten Commandments staying on Capitol lawn": The Associated Press provides this report from Montana. And The Helena Independent Record today contains an editorial entitled "About that Capitol monument."
Posted at 06:20 by Howard Bashman



"The world has bigger problems than L.A.'s wisely eliminated cross": Gerald Plessner has this op-ed today in The Pasadena Star-News. And this week's issue of The Tidings, the weekly newspaper of the Los Angeles Archdiocese, contains an essay entitled "Removing the Cross: American and French perspectives" by Bishop J. Thomas Curry.
Posted at 06:17 by Howard Bashman



"The GOP backpedals on judges": The Hill today contains an article that begins, "Senate Republican leaders have backed away from a strategy they adopted this summer to brand Democrats as obstructionists by scheduling nine cloture votes this month on President Bush’s federal appellate-court nominees."
Posted at 06:11 by Howard Bashman



"The Pledge Protection Act: The Lunacy of Letting Only State Courts Interpret the First Amendment." FindLaw columnist Marci Hamilton has this essay today.
Posted at 05:58 by Howard Bashman



Wednesday, September 22, 2004
Available online from NPR: This evening's broadcast of "All Things Considered" included segments entitled "Hamdi to Go Free in Detainee Compromise" (featuring Nina Totenberg) and "Tobacco Companies: No Conspiracy to Mislead."

And today's broadcast of "Talk of the Nation" included a segment entitled "Tobacco Lawsuit."

Real Player is required to launch these audio clips.
Posted at 23:58 by Howard Bashman



Appellate procedure from hell: "The Legal Reader" blog posts here about a decision a California state appellate court issued today in a case that the court described as "the appellate procedural case from hell."
Posted at 23:47 by Howard Bashman



Should all corporations be treated alike for purposes of state residency in determining whether federal diversity of citizenship jurisdiction exists? Two federal appellate judges who care very much about the proper resolution of questions such as this -- Circuit Judges Richard A. Posner and Frank H. Easterbrook -- have each written to address the issue in this decision that the U.S. Court of Appeals for the Seventh Circuit issued today.
Posted at 23:32 by Howard Bashman



"It looks a bit like the congressional anti-abortion faction outmaneuvered its anti-immigration faction--which itself is ironic, given that most members of Congress who belong to one of the factions belong to the other as well": Seventh Circuit Judge Terence T. Evans issued this interesting concurring and dissenting opinion in a case involving a female Chinese refugee of childbearing age.
Posted at 23:13 by Howard Bashman



U.S. citizen and alleged enemy combatant Yaser Esam Hamdi to be freed and expelled from the United States: Thursday's edition of The New York Times will report that "U.S. to Free 'Enemy Combatant,' Bowing to Supreme Court Ruling."

And Thursday's edition of The Washington Post will report that "U.S. to Free Hamdi, Send Him Home."
Posted at 23:04 by Howard Bashman



"Forced to Defend Yourself at Trial? Tough Luck, Says 3rd Circuit; Appeals court: Pa. judge's error 'not sufficiently unreasonable' to merit new trial." Shannon P. Duffy has this article online at law.com.
Posted at 23:00 by Howard Bashman



"Enemy combatant's freedom days away; Required to give up U.S. citizenship": CNN.com provides this report.
Posted at 21:32 by Howard Bashman



All Nader, all the time: Once again, efforts to place Ralph Nader onto, or keep Ralph Nader off of, as many state ballots as possible dominate the day's appellate developments.

Today, Circuit Judge Richard A. Posner, on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, issued an opinion that affirmed a federal district court's denial of a preliminary injunction to order the State of Illinois to place Nader on the ballot. In news coverage of the ruling, The Associated Press has a report headlined "Court: Nader too late for ballot."

Nader and his supporters also received an unfavorable ruling today from the Supreme Court of Oregon. The AP reports that "Oregon high court removes Nader from ballot."

Nader is also off the ballot, at least for now, in New Mexico, as The AP reports here. The Albuquerque Tribune today reports on an interesting development in that legal proceeding in an article headlined "Justices withdraw; 3 Supreme Court jurists recuse themselves from Nader appeal."

Finally, from Wisconsin yesterday came some better news for Nader backers. The Milwaukee Journal Sentinel reports today that "Elections Board votes to put Nader on the ballot; Democrats might sue."
Posted at 21:23 by Howard Bashman



Greetings from New Bern, North Carolina: I'm pleased to report that my hope of a high-speed internet connection at my hotel wasn't misplaced. Regular programming to resume momentarily.
Posted at 21:11 by Howard Bashman



Blawging guru stops, for a while, in New Bern, North Carolina: I doubt that any newspaper article similar to this one will be appearing in The New Bern Sun Journal while my day job requires my presence in that historic southeastern town over the next day and a half.

Unlike when work caused me to be away from home last week, this time it appears assured that my hotel will have a working high-speed internet connection. Check back for more updates later today. In the interim, any readers who wish to draw to my attention court rulings or law-related news coverage are invited to do so via email.
Posted at 11:55 by Howard Bashman



"Amendment puts Colorado in world's eye; Proposal to divide electoral votes may put court in charge": This article appears today in The Rocky Mountain News.
Posted at 11:50 by Howard Bashman



In news from Washington State: The Olympian reports today that "New group targets gay marriage; Allies for Marriage and Children want to amend state's constitution."

And in related coverage, The News Tribune of Tacoma reports today that "Gay marriage foes demand ban."
Posted at 11:44 by Howard Bashman



In judicial election-related news and commentary from here and there: The Charleston (W.V.) Daily Mail today contains an article headlined "McGraw campaign cries foul" that begins, "Supporters of state Supreme Court Justice Warren McGraw contend that an independent group attacking McGraw is too closely tied to the campaign of his opponent, attorney Brent Benjamin."

The St. Louis Post-Dispatch reports today that "Judicial foes oppose abortion."

And The Dallas Morning News today contains an editorial entitled "Texas Supreme Court: Although blemished, Brister deserves term."
Posted at 11:43 by Howard Bashman



The Seattle Times writes about web logs: Today's newspaper contains articles headlined "Web logs catch fire as kindling for change" and "Blogging guru stops, for a while, in Seattle."
Posted at 11:39 by Howard Bashman



"Judge's Remarks Become A Case For High Court": Lynne Tuohy today has this article in The Hartford Courant.
Posted at 11:38 by Howard Bashman



"Use of court experts may be curbed": Thursday's issue of The Sydney Morning Herald will contain this article.
Posted at 11:36 by Howard Bashman



"Survivor calls capital punishment 'madness'; He urges people to get involved in the movement to abolish it": This article appears today in The Salt Lake Tribune.
Posted at 11:30 by Howard Bashman



"Idaho justices uphold gay parents' rights; But Idaho Falls father still loses his custody case": The Idaho Statesman today contains this article reporting on a decision that the Supreme Court of Idaho issued yesterday.
Posted at 11:02 by Howard Bashman



"Judge favored mistress, clerk claims; 4th complaint filed against Warren Co.'s Powers": The Cincinnati Enquirer contains this article today.
Posted at 10:55 by Howard Bashman



"Harkness, Law School's Loker, Gets Facelift": This article appears today in The Harvard Crimson.
Posted at 10:54 by Howard Bashman



"Judge Says She Erred in Capital Case, Dissents": Jeff Chorney of The Recorder today has an article (subscription required) in which he reports, "Although the Ninth Circuit has a history of overturning California death penalty convictions and has received a lot of criticism over the years, it's almost unheard of for a judge to reverse herself, even in a death case."

The subject of the article is a dissent that Senior Circuit Judge Betty B. Fletcher issued yesterday after having joined in the Ninth Circuit's unanimous opinion rejecting the inmate's challenges to his death sentence that Circuit Judge M. Margaret McKeown had issued in June 2003.
Posted at 10:43 by Howard Bashman



"Parks said to be too ill to testify; Doctor says civil rights pioneer suffers from dementia, must skip lawsuit hearing": This article appears today in The Detroit News.
Posted at 10:36 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": The broadcast contained segments entitled "Tobacco Industry Begins Its Defense" and "Enron Trial" (Real Player required).
Posted at 10:21 by Howard Bashman



"House Backs Crack Down on Video Voyeurs": The Associated Press provides a report that begins, "Calling video voyeurism the new frontier of stalking, the House on Tuesday approved legislation to make it a crime to secretly photograph or videotape people, often for lascivious purposes."

As The AP's article notes in passing, this proposed federal criminal legislation would only prohibit upskirt photography "in the special maritime and territorial jurisdiction of the United States." Thus, outside of that rather limited geographic area, whether this conduct is criminal or not will depend on state law.

Let me add a note to The AP's headline writers -- wouldn't "crackdown" (which is a noun) be the word you're looking for, you punsters?
Posted at 10:14 by Howard Bashman



One way to avoid the crushing burden of student loan debt from attending an expensive law school: Orin Kerr links to an article headlined "Feds seeking $61K from alleged call girl; No charges filed against Stanford Law graduate who lived in Oakland" published yesterday in The Oakland Tribune. If Orin's post lacks anything, it's a link to the woman's web site, which is definitely not work safe.
Posted at 09:55 by Howard Bashman



"The Department Of Justice Is Forced to Admit Serious Error in the Detroit 'Terrorist Cell' Case: Judges' Key Role In Curbing 'War on Terror' Excesses." Noah Leavitt has this essay today online at FindLaw.
Posted at 09:49 by Howard Bashman



"Next stop for Nader backers: top court in N.M." This article appears today in The Santa Fe New Mexican.
Posted at 07:01 by Howard Bashman



"Doctors rally in Las Vegas for Question 3, protest Supreme Court": The Las Vegas Review-Journal contains this article today.
Posted at 07:00 by Howard Bashman



"Lawyers give high marks to lesbian-divorce judge": This article appears today in The Des Moines Register.
Posted at 06:57 by Howard Bashman



"Movement against judge organizes; More than 50 people attend meeting to discuss campaign against retention": The Lawrence (Kan.) Journal-World contains this article today.
Posted at 06:53 by Howard Bashman



"Paper may print name in Commandments case, judge says": This article appears today in The Omaha World-Herald. And in related coverage, that newspaper also reports today that "Federal judge says he has received threats."

In other Ten Commandments-related news, The Associated Press reports from Montana that "State to rule on Capitol's 10 Commandments marker."

And The Bolivar (Mo.) Herald-Free Press reports today that "Controversial monument in Humansville for festival."
Posted at 06:33 by Howard Bashman



Tuesday, September 21, 2004
"Bush's Legal Legacy in Texas Is a Divisive One": David G. Savage will have this article in Wednesday's issue of The Los Angeles Times.
Posted at 23:50 by Howard Bashman



In today's issue of The Los Angeles Times: An article reports that "Judge Rebukes Elections Panel for Its Finance Reform Rules; Findings on 'soft money' donations could 'foster corruption'; Decision probably won't affect this year's campaigns; An appeal is expected."

In other news, "Lawyers Seek to Stave Off Military Trial; Defense attorneys for an Air Force interpreter accused of espionage plan to file motions saying prosecutors have failed to make a case."

And an editorial entitled "A Bonehead on History" begins, "Remember the poll a few years back that found more Americans could name the Three Stooges than the three branches of government? Or the survey, also conducted by the Philadelphia-based National Constitution Center, in which one in four adults couldn't name a single right guaranteed by the 1st Amendment?"
Posted at 23:45 by Howard Bashman



The San Francisco Chronicle is reporting: In today's newspaper, Bob Egelko has an article headlined "Pepper spray case going to jury; Anti-logging group charges unusual force used in 1997."

And in other news, "Cops had 41 reasons to think Laci Peterson's body was in bay; Detective says all evidence pointed to spot where Scott went fishing."
Posted at 23:44 by Howard Bashman



Today in The Boston Globe: An article reports that "Global positioning to track sex offenders."

And an editorial is entitled "A scolding for the FEC."
Posted at 23:40 by Howard Bashman



"Prosecuting terrorists": Bruce Fein has this op-ed today in The Washington Times.
Posted at 23:35 by Howard Bashman



"Blogs look burly after kicking sand on CBS; Bloggers enjoy a moment of glory after pooling their expertise to uncover the truth about the forged memos on Bush's service record": This article will appear in Wednesday's issue of The Christian Science Monitor.
Posted at 23:30 by Howard Bashman



The Washington Post is reporting: Today's newspaper reports that "Judge Strikes Down 15 FEC Rules on Campaign Finance."

In other news, "Md. Court Lets Nader Appear on Nov. Ballot; 542 Disputed Signatures Deemed Valid."

And an article reports that "Harvard Student Tried in Fatal Stabbing; 2003 Death of Local Man Has Deepened Town-vs.-Gown Divide in Cambridge."
Posted at 23:20 by Howard Bashman



In today's issue of The New York Times: In news regarding the U.S. Court of Appeals for the D.C. Circuit, "Expert Faults Court's Ruling About Waste From Reactors."

In regional news, "Ex-Prosecutor Can Collect Jury Award, Judge Rules."

And an editorial is entitled "Dawdling Over DNA."
Posted at 23:11 by Howard Bashman



"Nader placed on Nov. ballot; Md. Court of Appeals says vote rule unconstitutional; Signatures were deemed invalid; State Democrats foresee little harm done to Kerry": The Baltimore Sun contains this article today.
Posted at 23:04 by Howard Bashman



"Appeals judge is named to high court": This article appears today in The St. Louis Post-Dispatch.
Posted at 23:01 by Howard Bashman



In judicial election-related news: The Cleveland Plain Dealer reports today that "Contested top-court races all up in air; Survey of likely voters finds half undecided."

The Birmingham News reports that "GOP has funding edge in court races; Candidates more than double Democrats' contributions."

And from Mississippi, The Clarion-Ledger reports that "Lee running low-budget race; Appeals judge plans to spend under $70,000 in bid for high court post."
Posted at 22:54 by Howard Bashman



Available online from law.com: Tony Mauro has articles headlined "Supreme Tipping Point: Some liberals and conservatives say a new high court appointment could alter law in several areas; Will it?" and "Judicial Conference Cuts Deep and Wide; Approved cost-cutting measures mean major layoffs and a freeze on new courthouses."

In news from California, "Court Chops More off $3 Billion Award in Philip Morris Case."

And Shannon P. Duffy has an article headlined "3rd Circuit: 'Healthy' Company Can't File Chapter 11; Filing solely for protection from landlord's claims was not made in good faith."
Posted at 22:40 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined:
Posted at 20:55 by Howard Bashman



"California Court Cuts Philip Morris Smoker Award": Reuters reports here that "A California appeals court has ruled that a smoker's record-breaking $3 billion punitive damages award against Philip Morris was still "excessive" even after being reduced by a trial judge to $100 million and must be halved again."

You can access today's ruling of the California Court of Appeal for the Second Appellate District at this link.
Posted at 20:51 by Howard Bashman



Available online from NPR: Today's broadcast of "Day to Day" included a segment entitled "Slate's Jurisprudence: Campaigning for a Court Seat" (Real Player required) featuring Dahlia Lithwick.

And this evening's broadcast of "All Things Considered" included a segment entitled "Collusion Charges Open Billion-Dollar Tobacco Trial" (Real Player required).
Posted at 20:45 by Howard Bashman



"Justice Stevens Disputes Media Coverage": Justice John Paul Stevens has a beef with Dahlia Lithwick's op-ed entitled "Off the Bench" published August 29, 2004 in The New York Times, according to this report from Gina Holland of The Associated Press.
Posted at 17:15 by Howard Bashman



"Republican fund-raising leads to indictments of 3 DeLay aides": The Houston Chronicle provides this news update.
Posted at 16:33 by Howard Bashman



"ACLU requests restraint on press": The Omaha World-Herald today contains this amazing article, which begins "In a stark turnabout from its free-speech advocacy, the ACLU urged a judge Monday to prevent the Omaha World-Herald from publishing the name of the Plattsmouth, Neb., man who sued the city over a Ten Commandments monument."
Posted at 15:29 by Howard Bashman



"Conference Adopts Cost-Containment Plan in Wake of Limited Congressional Funding; Continues Push for Court Funds": The Judicial Conference of the United States has just held a meeting, and this press release reports on some of the results.

Meanwhile, the Administrative Office of the U.S. Court has its own TV newscaster -- click here to see for yourself (Windows Media Player required). Glad to see that my confidence in Max Headroom's ability to land a new gig wasn't misplaced.
Posted at 15:10 by Howard Bashman



"Murderer considers offer of life sentence; Death penalty in drowning overturned by high court": The Baltimore Sun contains this article today. The U.S. Supreme Court issued its ruling in the case on June 26, 2003.
Posted at 14:49 by Howard Bashman



"Court hears appeal of tobacco verdict; A lower court's $100 million award faces a challenge": The Associated Press provides this report from Oregon.
Posted at 14:46 by Howard Bashman



"James E. Beasley, leading Phila. trial attorney, 78": This obituary appeared yesterday in The Philadelphia Inquirer. And The Philadelphia Daily News published this obituary yesterday.
Posted at 14:40 by Howard Bashman



"Justice Scalia the Pragmatist?": Law Professor Orin Kerr attended Justice Antonin Scalia's lecture yesterday evening in Washington, DC and offers this report.
Posted at 14:12 by Howard Bashman



In conducting searches of automobiles seeking entry into the United States through a border crossing, the federal government now has carte blanche to search and destroy all personal property that does not affect vehicular operation: So asserts the dissent in this ruling that a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued today.
Posted at 14:00 by Howard Bashman



Today's federal criminal law lesson -- Don't mail cornstarch: Today a three-judge panel of the U.S. Court of Appeals for the Third Circuit issued a decision that considers "the narrow question of whether the mailing of an envelope containing cornstarch meant to resemble anthrax, but containing no written message, constitutes a 'communication ... containing any threat ... to injure the person of the addressee'" as prohibited under federal law. By a 2-1 vote, the panel answered that question in the affirmative.
Posted at 13:52 by Howard Bashman



"The Battle Over The Courts: How politics, ideology, and special interests are compromising the U.S. justice system." This cover story appears in the September 27, 2004 issue of BusinessWeek magazine.

And the following related items are also available online: "Punch, Counterpunch"; "Turning Point"; "The Escalating Battle Over State Courts"; statistic number one; and statistic number two.
Posted at 13:40 by Howard Bashman



"Judge Recuses Himself in Muhammad Case": The Washington Post provides this news update. And The Richmond Times-Dispatch reports that "Judge in Muhammad case steps down." A copy of the trial judge's recusal order and letter of explanation are available online via the Fairfax County Virginia Circuit Court web site.
Posted at 12:23 by Howard Bashman



"'Smoketown Six' headed for trial; Face charges of disorderly conduct for dropping drawers at local Bush rally": This article appears today in The Lancaster (Pa.) Intelligencer Journal.
Posted at 12:10 by Howard Bashman



"10th Circuit: Forest Service can bar logging near medicine wheel." The Associated Press provides this coverage of a ruling that the U.S. Court of Appeals for the Tenth Circuit issued yesterday.
Posted at 11:49 by Howard Bashman



"Hearing on Mount Soledad cross canceled by judge": This article appears today in The San Diego Union-Tribune.
Posted at 11:27 by Howard Bashman



"Cigarette Makers Racketeering Trial Opens": Reuters provides this report from Washington, DC.

And The Associated Press reports from San Diego that "Lawyers Seek to Revive Teen Tobacco Suit."
Posted at 11:24 by Howard Bashman



In case allegedly involving secret law, the federal government insists on keeping its secrets secret: The federal government yesterday filed this motion to reconsider in the case known as Gilmore v. Ashcroft pending before the U.S. Court of Appeals for the Ninth Circuit. You can learn much more about the case via this web site, and you can access other court filings in the case at this link.
Posted at 11:14 by Howard Bashman



"How a 1677 treaty could snag reservoir in court; The Mattaponi tribe asserts a deal struck with King Charles II's representatives gives it rights to oppose the Newport News plan": This article appears today in The Daily Press of Hampton Roads, Virginia.
Posted at 10:11 by Howard Bashman



"Charges for Detainees Ordered; Judge Says Government Must Justify Custody at Guantanamo": The Washington Post contains this article today.
Posted at 10:09 by Howard Bashman



"Gay marriage ban defended; Six Georgia lawmakers ask to join legal fight in ACLU court challenge to proposed amendment": This article appears today in The Atlanta Journal-Constitution.
Posted at 10:01 by Howard Bashman



"Agency chief says court ruling threatens N.W. Ohio job growth": The Toledo Blade today contains an article that begins, "A federal court ruling against a controversial tax break for Ohio businesses has cast a pall over business recruitment in Toledo and the region, said Eileen Granata, acting chief operating officer of the Regional Growth Partnership."

Relatedly, Dennis W. Archer today has an op-ed entitled "Negative court decision a setback for Detroit, state" in The Detroit Free Press.
Posted at 09:50 by Howard Bashman



"Something's fishy in Lake -- angler admits guilt, takes deal": The Orlando Sentinel contains this article today.
Posted at 09:43 by Howard Bashman



"Plaintiff bar gives top dollar to judges' campaigns": This article appears today in The St. Louis Post-Dispatch, along with a related item headlined "Who gives what."
Posted at 09:36 by Howard Bashman



"Question 3 challenged anew; Heller says state high court biased toward lawyers, who oppose measure": The Las Vegas Review-Journal today contains an article that begins, "The future of the Keep Our Doctors in Nevada initiative, also known as Question 3, remained uncertain Monday evening as the Nevada Trial Lawyers Association again sued for its removal from the ballot. The latest lawsuit capped a flurry of legal action that began on Saturday when the Nevada Supreme Court criticized the accuracy of the language in the ballot measure and called upon Secretary of State Dean Heller to rewrite it."
Posted at 09:31 by Howard Bashman



"Judges embroiled in legalistic food fight": This interesting article appeared yesterday in The Grand Rapids Press.
Posted at 09:24 by Howard Bashman



"Tobacco Suit": Today's broadcast of NPR's "Morning Edition" included this report (Real Player required). And The Associated Press reports that "Cigarette Makers and Feds Meet in Court."
Posted at 09:20 by Howard Bashman



"Appeals court clears Bexar of bias charge": The San Antonio Express-News today contains this article reporting on a ruling that the U.S. Court of Appeals for the Fifth Circuit issued yesterday.
Posted at 07:02 by Howard Bashman



"Pa. Supreme Court puts Nader back on ballot; But it isn't the end of the battle; Hearings must be held on allegations that his petition campaign was marred by fraud": This article appears today in The Philadelphia Inquirer. And The Pittsburgh Post-Gazette reports that "Nader's ballot spot in Pennsylvania still up in air."
Posted at 06:55 by Howard Bashman



"Commandments going up soon": The Daily Herald of Henry County, Georgia contains this article today.
Posted at 06:49 by Howard Bashman



"Maine court to consider sentencing case": This article appears today in The Bangor Daily News.

From Tennessee, The Associated Press reports that "Task force reviewing ways to give juries more power." And The Jackson Sun today contains an editorial entitled "Sentencing guidelines should be repealed now."
Posted at 06:38 by Howard Bashman



Monday, September 20, 2004
Seals and Cross: Today in The Los Angeles Times, columnist Al Martinez has an essay entitled "The troll who trod on a seal."
Posted at 23:23 by Howard Bashman



"Bush, Kerry divided on scope of Patriot Act; President says expand, rival says reduce": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 23:14 by Howard Bashman



"Lawyers see obese U.S. ripe for fat lawsuits": The Washington Times contains this article today.
Posted at 22:56 by Howard Bashman



"Voter Probes Raise Partisan Suspicions; Democrats, Allies See Politics Affecting Justice Department's Anti-Fraud Efforts": This article appears today in The Washington Post.
Posted at 22:49 by Howard Bashman



In today's edition of The New York Times: An article reports that "Eisner's Sickbed Musings on a Successor Find Their Way Into Court."

In other news, "Online Columnist Quits, Citing Excessive Editing."

And an editorial is entitled "In Defense of Civil Liberties."
Posted at 22:37 by Howard Bashman



"Scalia: Courts Taking on Too Much Politics." The Associated Press provides this report.
Posted at 22:32 by Howard Bashman



In Tuesday's edition of The New York Times: An article will report that "At Country Clubs, Gay Members Want All Privileges for Partners."

In other news, "U.S. Judge Orders Election Agency to Tighten Rules."

And an article reports that "Colorado Election Keeps Bryant Debate Bubbling."
Posted at 22:23 by Howard Bashman



"DOJ Lies Low as Massive Tobacco Trial Opens; Filed in 1999 by the Clinton administration, racketeering case against Philip Morris has survived partisan politics": law.com provides this report.
Posted at 22:17 by Howard Bashman



In other news from The AP: That wire service is reporting that "Top Pa. court gives hope to Nader" and "Holden appoints Kirkwood woman to Missouri Supreme Court."
Posted at 19:32 by Howard Bashman



"Rules on Gifts for Judges Get Overhaul": Gina Holland of The Associated Press provides this report.
Posted at 19:21 by Howard Bashman



"Death penalty for minors: Cruel and unusual; As the Supreme Court hears arguments on using the death penalty against minors, the AMA joins the voices of science and international leaders against it." The September 27, 2004 issue of the newspaper of the American Medical Association contains this editorial.
Posted at 17:03 by Howard Bashman



In news from Alabama: The Anniston Star today contains an article headlined "Supreme Court candidates in state breaking the bank" that begins, "Supreme Court judges are elected to make fair and impartial rulings and hear every case with an open mind. But record breaking amounts of money that are pouring into Alabama's race this year are casting doubt on that basic duty, judicial observers say."
Posted at 16:58 by Howard Bashman



"Norfolk man to test 'innocence' law": This article appears today in The Virginian-Pilot.
Posted at 16:50 by Howard Bashman



"'Scum story' left a scar on Thomas": Columnist Jim Wooten had this op-ed in The Atlanta Journal-Constitution last Tuesday.
Posted at 16:49 by Howard Bashman



"Accountants call for reform in liability laws; Big Four firms warn more major players could fall in class actions if outdated rules aren't changed": The Toronto Globe and Mail contains this article today.
Posted at 16:48 by Howard Bashman



"Integration still not easy at UD; After five decades, some black students still feel uncomfortable on campus": This article appears today in The News Journal of Wilmington, Delaware.
Posted at 16:45 by Howard Bashman



"Letter about Iraq still making waves in Arizona": The Associated Press provides this report concerning a lawsuit against The Tucson Citizen that is about to come before the Supreme Court of Arizona.
Posted at 16:41 by Howard Bashman



"Schools say they balance free speech with potential disruption": Clothing that speaks is the subject of this article published today in The North County Times of California.
Posted at 16:39 by Howard Bashman



"Study finds 'don't ask' hurts GLBT soldiers": This article appears today in The Yale Daily News.
Posted at 16:30 by Howard Bashman



"Campaign Finance Ruling Could Affect 527s": Today's broadcast of NPR's "Day to Day" included this report (Real Player required). I have posted online here a copy of the ruling, which the U.S. District Court for the District of Columbia issued on Saturday.
Posted at 16:01 by Howard Bashman



"Md. high court rules in favor of Nader; State elections officials ordered to include name on presidential ballot": The Associated Press provides this report.
Posted at 15:33 by Howard Bashman



In news from the U.S. Court of Appeals for the Federal Circuit: That court's web site today includes the following notice:
The United States Court of Appeals for the Federal Circuit plans to begin posting both precedential and non-precedential opinions to the website in portable document format (PDF) on October 18, 2004. Opinions are currently posted in Microsoft Word™ format.

The Court invites your comments and questions on this planned change. Send them to the Webmaster at webmaster@cafc.uscourts.gov.
I congratulate the Federal Circuit on both changes mentioned in this announcement. Currently, non-precedential opinions are not posted online at that court's web site. And I don't know of anyone outside the employ of Microsoft who prefers to have court opinions posted online in Microsoft Word format.

Federal Circuit Judge William Curtis Bryson was the September 2003 interviewee in this blog's "20 questions for the appellate judge" feature, and his interview included the following exchange:
12. The Federal Circuit is the only federal appellate court that still posts its opinions to the Internet either in Microsoft Word format or as "EXE" files that require the user to download the file and then open it on his or her computer's hard disk before the decision in question can be viewed. Is there any hope in the near future that Federal Circuit might begin making its opinions available on its Web site either in HTML or PDF format?

I take this to be more of a suggestion than a question. I know nothing about our posting practices, or at least I knew nothing about them until you asked. I have passed along your observation about the other circuits to the people who post our opinions on the Internet and they will look into whether it is practical for us to post the opinions in another format for those who would find it more convenient. For what it is worth, I don't think they have gotten any format-related complaints in the past, but that does not mean that we could not do better. The e-world is constantly evolving, so perhaps we can improve our website in this respect.
And in response to Question 15, Judge Bryson offered some very interesting thoughts on the subject of non-precedential opinions.
Posted at 15:18 by Howard Bashman



Persecuted "on account of" familial membership? This immigration law decision that a divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued today is quite interesting.
Posted at 14:45 by Howard Bashman



Ralph Nader will be on the ballot in Maryland: Following oral argument at 10 a.m. today, the Court of Appeals of Maryland, that State's highest court, has issued this per curiam order.

Previously, The Associated Press had reported that "Court to hear Nader's appeal to get on Md. ballot; Presidential candidate challenging ruling on disputed petition signatures" and "Judge rejects bid by Nader to run for president in Md."
Posted at 13:48 by Howard Bashman



"A trial lawyer for Vice President?" That's the topic of this week's installment of the "Debate Club" feature at legalaffairs.org. This week's participants are Lawrence Lessig and William Tucker.
Posted at 11:40 by Howard Bashman



"'How many lawyers does it take...'" This editorial appears today in The Denver Post.
Posted at 11:11 by Howard Bashman



"House GOP aims to limit courts": This article appears today in The Washington Times.
Posted at 11:00 by Howard Bashman



"Blind man kills noisy deaf man": Agence France-Presse provides this report. And in other coverage, the Australian Associated Press reports that "Blind man jailed for slashing deaf man's throat."
Posted at 10:39 by Howard Bashman



"Judge Strikes Down Campaign Finance Rules": The Associated Press reports here that "A judge has struck down more than a dozen of the government's current rules on political fund raising with just weeks before Election Day, concluding federal regulators improperly weakened the nation's campaign finance law. U.S. District Judge Colleen Kollar-Kotelly ordered the Federal Election Commission to write new rules to govern key aspects of fund raising, including when candidates and outside parties can coordinate activities."

Update: You can access a copy of Saturday's ruling of the U.S. District Court for the District of Columbia at this link (157-page PDF document). Thanks very much to the reader who so kindly sent the opinion along via email.
Posted at 10:19 by Howard Bashman



"Budget pinch strains courts; Layoffs, clogged cases, public safety cuts feared in federal deficit fight": The Dallas Morning News contains this article today.
Posted at 10:15 by Howard Bashman



"The power to shape a legacy in the law; Next president holds the key to top court": This article appears today in The Star-Ledger of Newark, New Jersey.
Posted at 10:10 by Howard Bashman



"Murder sentence changes unveiled; Some murderers could serve less than 10 years in prison under guidelines unveiled by the Lord Chief Justice of England and Wales, Lord Woolf": BBC News provides this report.

In other international criminal law news, The Toronto Globe and Mail today contains an article headlined "Canada a 'haven' for criminals: survey; Billions being laundered each year; lenient sentencing partly to blame, KPMG says."
Posted at 10:04 by Howard Bashman



"Pledge, flag on agenda in Congress; Free speech showdown anticipated": This article appears today in The Atlanta Journal-Constitution.

Relatedly, The Denver Post today contains an editorial entitled "Playing 'gotcha' with the flag amendment: The Supreme Court has ruled that flag-burning is protected political speech; But Senate Republicans are holding Democratic candidates' feet to the fire on the issue."
Posted at 10:00 by Howard Bashman



The asbestos litigation of Madison County: The St. Louis Post-Dispatch yesterday began a series entitled "Madison County: Where asbestos rules." You can access the lead article, published yesterday, at this link. Also in yesterday's newspaper were the following items:The series continues in today's newspaper, which contains articles headlined:
Posted at 09:44 by Howard Bashman



"How Appealing" has a sponsor: No, I haven't entered into a twelve-step program to rid myself of an addiction to blogging. Rather, the purpose of this post is to point out that the good folks at LexisNexis will be sponsoring "How Appealing" for the next two months, and maybe longer. You mean that the opportunity to sponsor "How Appealing" exists? Apparently so.
Posted at 09:30 by Howard Bashman



"The Supreme Court and Employee Health Insurance: How the Court Is Making this Area of Law National, Not Local." FindLaw columnist Anthony J. Sebok has this essay today.
Posted at 09:27 by Howard Bashman



"No Crusaders on the Bench: Congress must beware of judicial zealots nominated to the courts." Dahlia Lithwick has this article (subscription required) in the current issue of The American Lawyer magazine.
Posted at 09:25 by Howard Bashman



"Gays cautious about new partners law; Some opt out, fearing legal or financial troubles": This article appears today in The San Francisco Chronicle. And yesterday, The Denver Post contained an article headlined "Rights issue frames gay-nuptials battle."
Posted at 09:20 by Howard Bashman



"Tobacco Case Nears Trial, Questions Remain": Reuters provides this report.
Posted at 07:55 by Howard Bashman



"The Bench: Blacked Out." Jeffrey Toobin has this "Talk of the Town" item in the September 27, 2004 issue of The New Yorker. The final paragraph of this blog post of mine from August 29, 2004 provides additional details.
Posted at 07:50 by Howard Bashman



Sunday, September 19, 2004
"Don't forget about Supreme Court: Presidential winner might fill three vacancies." Rena Pederson has this op-ed today in The Dallas Morning News.
Posted at 23:55 by Howard Bashman



"Chief justice: Gov. Rick Perry's appointment of Wallace Jefferson to preside over the Texas Supreme Court is praiseworthy and a promising development for justice." This editorial appears today in The Houston Chronicle.
Posted at 23:52 by Howard Bashman



"Doing justice": The Salt Lake Tribune today contains an editorial that begins, "It is hard to pinpoint the exact moment in American history when we decided that justice was too important to be left to the judges. But it was a big mistake."
Posted at 23:50 by Howard Bashman



"Jim v. Mary, part two: Battle for the Supreme Court." The Associated Press provides this report from Washington State.
Posted at 23:48 by Howard Bashman



"'Don't Amend' is on a roll; Amendment 3 foes outdo supporters by $500,000": The Deseret Morning News today contains an article that begins, "So far the campaign to kill a proposed state constitutional amendment to ban same-sex marriage has raised more than $535,000 -- a half million more than amendment supporters have raised."
Posted at 23:45 by Howard Bashman



In today's edition of The Los Angeles Times: An article reports that "Washington Town Warily Welcomes an Unusual Graduate; Shelton will scrutinize the first man to finish California's sex-offender treatment program." And in other news, "Professor Ordered to Undergo Testing; The instructor who faked a hate crime at Claremont Colleges will be sent to a state prison for evaluation."

In commentary, James D. Zirin has an op-ed entitled "One-Size-Fits-All Sentences in a Judicial Muddle; Rift between mandated terms and judges' discretion awaits Supreme Court next month." Law Professor David Cole has an op-ed entitled "The D.C. Gang That Couldn't Shoot Straight." And Ben Wasserstein has an op-ed entitled "Bloggers' 'Moment' Doesn't Make for a Revolution; It's an Internet win, but far from traditional journalism's death knell."
Posted at 23:44 by Howard Bashman



Today in The San Francisco Chronicle: The Magazine section contains an interview headlined "Waging War on Wal-Mart: Berkeley lawyer fights for the Betty Dukeses of retail workers."

The Opinion section, meanwhile, contains an editorial entitled "Why '3 strikes' needs reform." Columnist Debra J. Saunders has a related op-ed entitled "26,000 'get out of jail free' cards." And the "Open Forum" consists of a debate described as "Pro and con on Proposition 66": David W. Paulson has an essay entitled "Law is working -- Crime rate down"; and Joe Klaas has an essay entitled "A good idea that needs fixing."
Posted at 23:40 by Howard Bashman



In today's issue of The Washington Times: An article reports that "Anti-obesity group mulls swell in suits."

And Alan Reynolds has an op-ed entitled "Martha Stewart in prison."
Posted at 23:35 by Howard Bashman



The Washington Post is reporting: Today's newspaper contains articles headlined:Also, columnist George F. Will has an op-ed entitled "Despotism in New London."
Posted at 23:33 by Howard Bashman



"A Blogger's Creed: A member of the blogging class tells why they deserve your thanks." Andrew Sullivan has this essay in the September 27, 2004 issue of Time magazine. And a photograph of two of the contributors to the "Power Line" blog accompanies an article headlined "The Bloggers: How to knock down a story."
Posted at 23:24 by Howard Bashman



"Election chaos? An army of lawyers stands ready to fight if the race is close." This article appears in the September 27, 2004 issue of U.S. News & World Report.
Posted at 23:20 by Howard Bashman



In today's edition of The New York Times: The newspaper contains articles headlined:Also, The New York Times Magazine contains an article headlined "Fern Holland's War."
Posted at 23:15 by Howard Bashman



"Abu Ghraib: The Hidden Story." Mark Danner will have this book review in the October 7, 2004 issue of The New York Review of Books.
Posted at 23:08 by Howard Bashman



In Monday's issue of The New York Times: Tomorrow's newspaper will contain articles headlined "Tobacco Firms Face U.S. in High-Stakes Trial" and "An Enron Trial With Big Stakes for Ones Ahead."
Posted at 23:02 by Howard Bashman



"States Defend School Funding Laws in Court": This evening's broadcast of NPR's "All Things Considered" contained this report (Real Player required).
Posted at 22:55 by Howard Bashman



"In the largest suit yet, US sues the tobacco industry; The Justice Department seeks $280 billion, but companies say they've already made appropriate changes": This article will appear Monday in The Christian Science Monitor.
Posted at 20:30 by Howard Bashman



"A place where lawyers learn to raise the bar; Inns of Court program lets new attorneys learn from experienced colleagues": This article appears today in The Newark Star-Ledger.
Posted at 16:06 by Howard Bashman



"Partisan judiciary guidelines rejected; State Supreme Court faults recommendations on speech": The St. Paul Pioneer Press on Friday published an article that begins, "The Minnesota Supreme Court has declined to adopt recommended amendments to the state's Code of Judicial Conduct that would allow judges to align themselves with political parties, according to an order published Thursday." And The Minneapolis Star Tribune on Friday reported that "Court rejects overhaul of judicial campaign rules." You can access last week's order of the Supreme Court of Minnesota at this link.
Posted at 13:04 by Howard Bashman



"True or false: Blogs always tell it straight; Sites reflect beliefs and biases of authors." The Chicago Tribune contains this article today.
Posted at 13:00 by Howard Bashman



In news from Ohio: The Toledo Blade today contains articles headlined "$1M war chest aids chief justice in his campaign for a 4th term" and "Retired Cleveland judge makes surprise run for top position."
Posted at 12:45 by Howard Bashman



In news from Louisiana: The Times-Picayune reports today that "Gay marriage ban passes nearly 4-to-1." And The Advocate of Baton Rouge reports that "Voters OK constitution ban on same-sex marriages."
Posted at 09:33 by Howard Bashman



In news from Pennsylvania: The Tribune-Review reports that "Law allows indefinite extension of confinement."
Posted at 09:30 by Howard Bashman



"Juries don't need more power, judges say": The Tennessean contains this article today.
Posted at 09:26 by Howard Bashman



"Judicial Trailblazer: Judge Garza laid to rest." This article appears today in The Brownsville Herald. And The San Antonio Express-News reports that "Legendary judge laid to rest in Brownsville."
Posted at 09:14 by Howard Bashman



Saturday, September 18, 2004
In today's edition of The Los Angeles Times: The newspaper contains articles headlined:Also, Ramona Ripston -- the spouse of a judge serving on the U.S. Court of Appeals for the Ninth Circuit -- has a letter to the editor that appears under the heading "Prop. 69 Is a Threat to Privacy of Citizens."
Posted at 23:45 by Howard Bashman



"Stewart could be a snowbird jailbird; Martha Stewart is ready for prison -- and if she can't go to Connecticut, she wants to serve her time in Florida": The St. Petersburg Times contains this article today.
Posted at 23:44 by Howard Bashman



"Nader stays on state ballot; In what's apparently the final word on the matter, the Florida Supreme Court ruled that Ralph Nader will remain on the state's Nov. 2 presidential ballot": This article appears today in The Miami Herald. The Tallahassee Democrat reports that "Nader makes the Florida presidential ballot; Ruling a setback for Kerry; Maddox won't appeal." The St. Petersburg Times reports that "With final bounce, Nader lands on Florida ballot; The state Supreme Court rules 6-1 in favor of the Reform Party candidate, who was on and off the ballot for two weeks." And The South Florida Sun-Sentinel reports that "State Supreme Court puts Nader back on state ballot."
Posted at 23:33 by Howard Bashman



"Louisiana Voters Approve Gay-Marriage Ban": The Associated Press provides this report. Earlier, today's edition of The Boston Globe reported that "La. voting on gay marriage ban; Opponents fear amendment plan's scope is broad."
Posted at 23:14 by Howard Bashman



"Gay marriage ballot challenged; Suit claims question improper, deceptive": This article appeared Friday in The Atlanta Journal-Constitution.
Posted at 11:40 by Howard Bashman



In today's issue of The Washington Post: An article reports that Sniper Attorneys Defend Judge's Pr. William Trip; Court to Weigh Dismissing Fairfax Case."

In other news, "Hot Issues Go Directly to State Voters; Gay Marriage Among Initiative Questions."

And in news from Toronto, "Canadians Try to Keep It Clean In Fight Over Use of U.S. Landfill."
Posted at 11:33 by Howard Bashman



The New York Times is reporting: Today's newspaper contains articles headlined:
Posted at 11:22 by Howard Bashman



"Cuban case may clarify U.S. power to detain; The Supreme Court will weigh the fate of criminal Mariel Cubans, most held for years past their original sentences": This article appears today in The Oregonian.
Posted at 08:50 by Howard Bashman



"Texas justice is accused of conflict; Brister says he doesn't recall case linked to his campaign": The Dallas Morning News contains this article today.
Posted at 08:48 by Howard Bashman



"Governor reverses court seat stand; New judge will come from Judicial Council's list of 3 after all": This article appears today in The Anchorage Daily News.
Posted at 08:47 by Howard Bashman



"Court backs city's quest for gun records": The Chicago Sun-Times today contains this article reporting on a decision that the U.S. Court of Appeals for the Seventh Circuit issued on Thursday.
Posted at 08:45 by Howard Bashman



"Judge Orders Nader Off N.M. Ballot": This article appears today in The Albuquerque Journal.
Posted at 08:38 by Howard Bashman



"Assistant U.S. attorney tapped for federal bench": This article appeared yesterday in The Honolulu Star-Bulletin.
Posted at 08:25 by Howard Bashman



"A bold judge's rulings lead to demand for impeachment": The Associated Press provides this report.
Posted at 08:22 by Howard Bashman



Friday, September 17, 2004
"They Changed Their Minds on Three Strikes; Can They Change the Voters'? Ten years ago, these men wanted to see three strikes become the law in California; Now they're leading the fight to reform it." This cover story will appear in this upcoming Sunday's issue of The Los Angeles Times Magazine.
Posted at 23:45 by Howard Bashman



"Law governing alien workers survives legal challenge": This article appeared yesterday in The Saipan Tribune.
Posted at 23:44 by Howard Bashman



In news from Guam: Saturday's issue of The Pacific Daily News contains an article headlined "Jury selection scheduled for November in Moylan case" that begins, "The island's first elected attorney general will face trial next month in connection with family violence charges against him."

And in other news, "PacifiCare ruling sees reversal."
Posted at 23:40 by Howard Bashman



In today's issue of The Los Angeles Times: The newspaper contains articles headlined:In addition, an obituary is headlined "Reynaldo Garza, 89; First Latino Named a U.S. District Judge." And letters to the editor appear under the heading "Trial Lawyers Don't Deserve the Criticism."
Posted at 23:33 by Howard Bashman



The Washington Post is reporting: Today's newspaper contains articles headlined:
Posted at 23:25 by Howard Bashman



In today's edition of The New York Times: The newspaper contains articles headlined:Also, Brent Staples has an "Editorial Observer" column entitled "How Denying the Vote to Ex-Offenders Undermines Democracy."
Posted at 23:21 by Howard Bashman



Lyle Denniston is reporting: Online at "SCOTUSblog" in recent days, he has had posts titled "Judge Jones and Roe v. Wade" and "Next for Moussaoui: trial or an appeal?"
Posted at 23:06 by Howard Bashman



"Blogger Who Faulted CBS Documents Is Conservative Activist": The Los Angeles Times provides this news update. According to the article, which will appear in Saturday's issue of The LATimes, the contributor known as "Buckhead" who posts to the site freerepublic.com is in fact attorney Harry W. MacDougald, "an Atlanta lawyer with strong ties to conservative Republican causes who helped draft the petition urging the Arkansas Supreme Court to disbar President Clinton after the Monica Lewinsky scandal." You can access his profile at this link. "Buckhead" is widely credited as the first to note the issues that have spawned the matter now known as "RatherGate."
Posted at 22:53 by Howard Bashman



"Florida Supreme Court Gives Nader a Spot on State Ballot": This article will appear in Saturday's edition of The New York Times. Saturday's issue of The Washington Post will report that "Nader Secures Spot on Fla. Ballot; State Supreme Court Rejects Democrats' Bid to Bar Access." And The Miami Herald offers a news update headlined "Nader stays on the ballot, Florida Supreme Court rules."
Posted at 22:48 by Howard Bashman



"States Clash Over Same-Sex Parental Rights; Vermont, Virginia have early jurisdictional test": law.com provides this report.
Posted at 22:44 by Howard Bashman



"Same-sex marriage foes win right to proceed with suits; Ruling allows groups to defend state law barring gay nuptials": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 19:35 by Howard Bashman



"Fla. Supreme Court Puts Nader on Ballot": The Associated Press provides this report. And Reuters reports that "Florida Supreme Court Puts Nader on Ballot." You can access this evening's ruling of the Supreme Court of Florida at this link.
Posted at 19:27 by Howard Bashman



"Lawyer's sex toys biz is expected to bring in $45 million this year": So writes "The Obscure Store" in linking to an article headlined "Merchants of Passion: A Bay Area company moves the dildo into the national mainstream -- one housewife at a time" published in the September 15, 2004 issue of SF Weekly.

Meanwhile, in somewhat related news, The San Francisco Chronicle reported on Tuesday that "Porn shop is just daily grind for these clerks."
Posted at 17:51 by Howard Bashman



"Florida Supreme Court Weighs Nader Ballot Bid": Reuters provides this report.
Posted at 17:34 by Howard Bashman



"Eminent Domain Case May Go to Supreme Court": Today's broadcast of NPR's "Morning Edition" included this segment (Real Player required).
Posted at 16:55 by Howard Bashman



"Cigarette Makers and Feds Head to Court": The Associated Press provides this preview of a trial scheduled to begin on Tuesday of next week in the U.S. District Court for the District of Columbia.
Posted at 16:46 by Howard Bashman



"Gay marriage backers to seek SJC action": This article appears today in The Boston Globe. And in same-sex marriage-related news from Canada, The Toronto Globe and Mail reports today that "Manitoba bows to gay nuptials; Court ruling makes old definition of marriage in province unconstitutional."
Posted at 16:00 by Howard Bashman



"Smoking in the Dark: Did the tobacco companies fool anyone? Did they fool everyone?" Jacob Sullum today has this essay online at Reason.
Posted at 15:11 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Microsoft to Pay $113M to Calif. Lawyers" and "Canadian Province Legalizes Gay Marriage."
Posted at 14:51 by Howard Bashman



"Florida court expected to rule on Nader candidacy": The Associated Press reports here that "The Florida Supreme Court is expected to rule late Friday on whether Ralph Nader will be on the state's November ballot as the Reform Party's presidential candidate." That court heard oral argument in the matter just this morning, and you can view a videotape of the oral argument online via this link (Real Player required). The briefs and other documents filed in the case can be accessed here. In the words of a "How Appealing" reader who emailed the video link, "In a sign of how seriously the Dems are going after Nader, they had Laurence Tribe argue this case today."
Posted at 14:06 by Howard Bashman



Ten Commandments news: On Wednesday, the en banc U.S. Court of Appeals for the Eighth Circuit heard oral argument in a Ten Commandments case. You can listen to an audiotape of the en banc oral argument in ACLU NE Foundation v. City of Plattsmouth by clicking here (Real Player required). Following the argument, The Associated Press reported that "Court hears arguments in Ten Commandments case." And The American Center for Law and Justice issued a press release entitled "ACLJ Asks Appeals Court to Protect the Display of Ten Commandments in Plattsmouth, Nebraska."

Elsewhere, The Salt Lake Tribune reported yesterday that "Ten Commandments monument battle goes before the judge." The Mansfield (Ohio) News Journal reported yesterday that "DeWeese wants Commandments back in his courtroom frame." The Washington Daily News of North Carolina reported Wednesday that "Commissioners pass on Ten Commandments resolution." And The Birmingham News reported Tuesday that "Moore urges limiting federal judges' power."
Posted at 13:05 by Howard Bashman



"Judge faces recall effort; Rape victim's mother mobilizes against Martin": The Lawrence (Kan.) Journal-World contains an article that begins, "The mother of a 13-year-old rape victim is helping organize a campaign to vote off the bench the judge who granted a lightened sentence for three men convicted in the assault."
Posted at 09:31 by Howard Bashman



Seals and Cross no more? On Wednesday, The Los Angeles Times reported that "Officials Vote to Replace County Seal; Supervisors decide 3-2 to remove a cross and make other changes; But the debate continues," while The Los Angeles Daily News reported that "Board OKs new county seal 3-2 in face of opposition." Today, however, The Daily News is reporting that "Officials delay seal substitution."
Posted at 09:28 by Howard Bashman



"Harvard Law prof admits to plagiarism": This article appeared Tuesday in The Yale Daily News. And Lawrence R. Velvel, Dean of the Massachusetts School of Law, has two interesting posts about this matter (access them here and here) online at his blog "Velvel on National Affairs."
Posted at 09:18 by Howard Bashman



"Are the U.S. Sentencing Guidelines Judicial or Legislative? And Will the Answer Determine Whether They Survive Supreme Court Review?" FindLaw columnist Vikram David Amar has this essay today.
Posted at 08:59 by Howard Bashman



"Tongue stud's impact on breath test argued; State Supreme Court considers whether mouth jewelry affected the examination in woman's 2001 DUI case": This article appears today in The Indianapolis Star.
Posted at 08:56 by Howard Bashman



Thursday, September 16, 2004
Colorado newspaper publishes transcript of interview conducted by sheriff's investigators who questioned Kobe Bryant the night after a woman said he had raped her: You can access the lengthy interview transcript, published online yesterday by The Vail Daily News, at this link.

Today, that newspaper has published articles headlined "Bryant cooperative, inconsistent when questioned" and "Investigate, punish leak, Bryant's attorneys ask."
Posted at 23:50 by Howard Bashman



"High court seats first Hispanic": This article appeared yesterday in The Newark Star-Ledger.
Posted at 23:45 by Howard Bashman



The Los Angeles Times is reporting: The newspaper today contains a report from San Diego headlined "Lawsuit Pits Gay Rights, Free Speech; A student whose high school forbade his wearing a T-shirt that said God condemns homosexuality takes district to court."

In other news, "Business Owners Rally Around Initiative to Limit Lawsuits; Proposition 64, aimed at 'shakedowns,' would weaken the Unfair Competition Law."

And an article reports that "Stewart Asks to Start Prison Sentence; She says she wants to put this behind her so she can move on with her life and career."
Posted at 23:40 by Howard Bashman



"Special-election lawsuit dismissed; Gov. McGreevey has not yet created a vacancy, a U.S. judge ruled; Two lawyers will try again": This article appears today in The Philadelphia Inquirer. And The Newark Star-Ledger today contains an article headlined "Federal judge refuses to order a Nov. 2 election for governor; 2 lawyers' futile claim: McGreevey cheating electorate."
Posted at 23:30 by Howard Bashman



In today's issue of The Washington Post: An article reports that "Stewart Asks Judge to Let Her Begin 5-Month Sentence."

In other news, "Post Source Reveals Identity to Leak Probers."

And a profile is headlined "A Lifetime of Faith in the Law; At 93, Senior Judge William Bryant Still Wins Plaudits for Dedication to Justice."
Posted at 23:22 by Howard Bashman



Bob Egelko is reporting: Today in The San Francisco Chronicle, he has articles headlined "Activists recount pepper-spray agony; Logging protesters testify about 1997 sit-ins at 3 sites" and "Tobacco giant loses in state high court."

And on Tuesday, Egelko was the author of an obituary headlined "Aaron Director -- profoundly influential law professor."
Posted at 23:20 by Howard Bashman



In today's edition of The New York Times: The newspaper contains articles headlined:In addition, today's newspaper contains an obituary headlined "Aaron Director, Economist, Dies at 102."
Posted at 23:04 by Howard Bashman



Available online from law.com: Now accessible are articles headlined:
Posted at 22:40 by Howard Bashman



"Court Declines Woman's Suit Against Stillwater Police; Woman Claims Police Denied Due Process During Rape Investigation": The Associated Press reported here yesterday that "A Denver appeals court declined Tuesday to reinstate a lawsuit against the Stillwater Police Department by a woman who alleged she was raped by four ex-Oklahoma State University football players." You can access Tuesday's ruling, written by Circuit Judge Michael W. McConnell on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit, at this link.
Posted at 22:30 by Howard Bashman



"Seabright nominated as U.S. judge": The Honolulu Advertiser today contains an article that begins, "Assistant U.S. Attorney Michael Seabright was nominated by President Bush yesterday as the fourth U.S. District judge in Hawai'i, to fill a position left vacant for more than 4 1/2 years."
Posted at 21:45 by Howard Bashman



U.S. Court of Appeals for the Eleventh Circuit holds that Title II of the Americans with Disabilities Act does not abrogate Eleventh Amendment immunity for damages arising from discrimination against the disabled in prison: You can view the decision, which issued on Tuesday, at this link. The opinion examines in detail the U.S. Supreme Court's recent ruling in Tennessee v. Lane, which reached the opposite conclusion with respect to discrimination against the disabled affecting access to court.
Posted at 16:12 by Howard Bashman



"A confirmation to bench unlikely; BYU counsel's prospects fade as time dwindles": Yesterday's edition of The Deseret Morning News contained an article that begins, "With only three weeks until expected adjournment, the prospects that Thomas Griffiths, the Brigham Young University general counsel, will be confirmed by the U.S. Senate as a federal appeals court judge are fading fast."
Posted at 15:54 by Howard Bashman



Anthrax scare at U.S. Court of Appeals for the D.C. Circuit: A reader emails that "Today three judges received phony anthrax letters at the Federal Courthouse for the Court of Appeals for the DC Circuit. They were sent to Ginsburg, Sentelle, & Tatel."
Posted at 15:48 by Howard Bashman



"Case of Missing Ex-Wife Remanded for 2nd Trial": The Washington Post yesterday contained an article that begins:
A federal appeals court yesterday granted a new trial for former naval intelligence officer Jay E. Lentz on charges of kidnapping and killing his ex-wife, ruling that the jury that convicted him had seen evidence that never was admitted in the case.

In a broad decision that resolved several issues in the increasingly complicated case, the U.S. Court of Appeals for the 4th Circuit also threw out the trial judge's finding that the lead prosecutor, Assistant U.S. Attorney Steven D. Mellin, had deliberately placed the evidence in the jury room. The court said the judge made "a rather broad leap" based on a lack of evidence and "clearly erroneous" logic.

The appeals court also took the rare step of removing the judge, U.S. District Judge Gerald Bruce Lee in Alexandria, from the case, ruling that his criticism of Mellin and other prosecutors would require a new judge for the retrial. Lee had accused Mellin of recklessly planting the evidence, which included Doris Lentz's notes about threatening phone calls Lentz allegedly had made to her.

The ruling, for now, settles the swirl of highly personal and unusual allegations involving a federal judge, a career prosecutor and a sitting U.S. attorney. The evidence battle, in which prosecutors accused Lee of bias and Mellin at one point suggested that defense lawyers may have tried to frame him, had come to overshadow Doris Lentz's death.
In other coverage, The Richmond Times-Dispatch reported yesterday that "Lentz acquittal is overturned; new trial ordered." You can access Tuesday's ruling by a partially divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit at this link.
Posted at 14:45 by Howard Bashman



Have laptop computer, will travel: In retrospect, perhaps I should have provided more advance notice of my work-related trip earlier this week to Lancaster, South Carolina, because once I was in transit a number of South Carolina-based fans of the blog emailed to ask whether I was available for dinner. As it turned out, the amount of work I had to do and my distance from South Carolina's major cities (where those readers were based) prevented me from visiting with any readers.

Next week, I'm scheduled to make a two-day work-related visit to beautiful New Bern, North Carolina, another place where few "How Appealing" readers are likely to be found. Then, the week after that, I'll be in St. Louis visiting with the Eighth Circuit's judges. Finally, in mid-October, I'm scheduled to pay my second work-related visit in several years to Kansas City.
Posted at 14:15 by Howard Bashman



Seventh Circuit rules that jail's policy of directing incoming inmates to use a delousing shampoo doesn't violate their Fourteenth Amendment due process right to be free from unwanted medical treatment: You can access today's ruling, by a unanimous three-judge panel, at this link.
Posted at 13:33 by Howard Bashman



Maryland's highest court expedites hearing on Nader ballot access case: You can view at this link the order that the Court of Appeals of Maryland issued today.
Posted at 11:52 by Howard Bashman



"Drunk juror? No problem." The New York Daily News contains this article today. In other coverage, The New York Times offers an article headlined "Retiree Found Guilty, Juror Found Tipsy, and Verdict Stands." New York Newsday reports that "Juror's vodka no influence." And Reuters offers a report headlined "Jury Duty? I'll Drink to That!"
Posted at 10:36 by Howard Bashman



"Judicial candidates free to reveal their politics; Restrictions ruled unconstitutional": The Cleveland Plain Dealer contained this article yesterday. The Toledo Blade yesterday published an article headlined "Judge's ruling favors high court candidate; Complaint against O'Neill is blocked" that begins, "A federal judge ruled yesterday that a Democratic candidate for Ohio Supreme Court is probably right when he maintains that state court rules governing judicial campaigns violate his constitutional right to free speech." And The Canton Repository today contains an editorial entitled "Judges come from somewhere."

I have posted online at this link the preliminary injunction that U.S. District Judge Ann Aldrich of the Northern District of Ohio issued Tuesday.
Posted at 10:10 by Howard Bashman



"Couple's life goes on as court considers same-sex marriage": This article appears today in The Indianapolis Star.
Posted at 09:59 by Howard Bashman



"Oh, The Humanity!" Denise Howell notes the news from her home state that "Train hits truck hauling vintage Porsches." Those desiring to increase their misery by gawking at the photos of the aptly named "Porsche Disaster" can do so here, here, here, and here.
Posted at 08:18 by Howard Bashman



"'Enemy combatant' release likely soon": CNN.com provides this report about Yaser Esam Hamdi.
Posted at 08:12 by Howard Bashman



"The Judicial Opinion Denying a Request by 'Jane Roe' to Reopen Roe v. Wade: A Key Opportunity to Look Back on Abortion's Legal History." FindLaw columnist Edward Lazarus today has this essay.
Posted at 08:05 by Howard Bashman



"Students keep prayer in schools": The Greenville (S.C.) News contains this article today.
Posted at 08:02 by Howard Bashman



When good hugs go bad: In news from Washington State, The Seattle Post-Intelligencer reports today that "Attorney testifies it wasn't sex with client." The Seattle Times, meanwhile, today contains an article headlined "Lawyer's colleagues describe her as committed advocate for clients" and an essay by columnist Nicole Brodeur entitled "The real question for Olson."

Yesterday, The Seattle Times reported that "Lawyer accused of having sex with client testifies on 'hug gone bad'" while The P-I reported that "Former public defender gives tearful testimony."

And on Tuesday, The Seattle Times reported that "Two guards testify they saw Olson, client having sex" while The P-I reported that "Ex-public defender denies jailhouse sex with client."
Posted at 07:55 by Howard Bashman



"Name Games: The folly in the attempts to define 'African-American.'" Slate this morning has posted online this jurisprudence essay by Law Professor Richard Thompson Ford.
Posted at 07:51 by Howard Bashman



Second Justice Sandra Day O'Connor bobblehead doll auctioned on eBay in recent days sells for $285.00: The SOC doll whose auction concluded last Saturday sold for $300.00. But the price at the auction that just concluded is nothing to scoff at, given that no one was willing to bid $200.00 for an SOC bobblehead when "some poor schmuck" tried to auction one while I was on vacation late last month.
Posted at 01:00 by Howard Bashman



"Slate's Jurisprudence: November Election and Fed Courts." Tuesday's broadcast of NPR's "Day to Day" included this segment featuring Dahlia Lithwick (Real Player required).
Posted at 00:14 by Howard Bashman



"Courts may be stripped on pledge": This article appears today in The Hill.
Posted at 00:10 by Howard Bashman



Wednesday, September 15, 2004
"On Death Row, a Battle Over the Fatal Cocktail": Adam Liptak will have this article in Thursday's edition of The New York Times.
Posted at 23:58 by Howard Bashman



"Black judge makes history as first to lead Texas' highest court; New chief justice sees himself as a role model for many in the state": This article appears today in The Houston Chronicle. And the Supreme Court of Texas issued this news advisory yesterday concerning the announcement.
Posted at 23:35 by Howard Bashman



Back home: This evening's lack of posts was not due to any antipathy toward Lancaster, South Carolina's finest internet cafe. Rather, the work that required my presence in that small town happened to conclude a day early, in part due to Hurricane Ivan's likely disruption of air travel out of Charlotte, North Carolina later tomorrow.

As a result, I can live-blog from the comfort of my own home the end of the eBay auction of a Justice Sandra Day O'Connor bobblehead doll, which is due to wrap-up less than two hours from now at 1 a.m. eastern time Thursday. You can view the eBay listing and even offer your own bid via this link. The current bid is $265.00. Last Saturday, of course, the identical item sold on eBay for $300.00. If last Saturday's auction was any indication, the real serious bidding will occur in the last ten minutes of the contest.

Finally, thanks so very, very much to all the readers who accepted my request, while I was traveling out-of-town on business, to email links to court rulings and news stories of interest. I will try my best to post more of those items tomorrow.
Posted at 23:08 by Howard Bashman



"Judge Garza dead at 89; Nation's first Mexican-American district judge dies of pneumonia": This article appears today in The Brownsville (Tex.) Herald. The article begins, "U.S. Circuit Judge Reynaldo G. Garza, the nation’s first Mexican-American district judge, died Tuesday at a Brownsville hospital. He was 89."
Posted at 08:19 by Howard Bashman



"Bid to reopen Roe case fails; But one judge on panel blasts landmark 1973 abortion ruling": This article appears today in The Houston Chronicle. The Dallas Morning News reports that "Federal court rejects Roe vs. Wade appeal." The Austin American-Statesman reports that "Judges deny bid to reopen Roe v. Wade; Woman who sparked landmark abortion ruling wants it overturned." And The Advocate of Baton Rouge, Louisiana reports that "5th Circuit denies abortion appeal; Original plaintiff asks panel to reverse Roe v. Wade." My earlier coverage of yesterday's ruling can be accessed here.
Posted at 08:14 by Howard Bashman



The New York Times is reporting: In today's newspaper, Adam Liptak reports that "Fewer Death Sentences Being Imposed in U.S."

In other news, "Bill to Require Sanctions on Lawyers Passes House."

And in international news, "Adultery a Crime? The Turks Think Again and Say No."
Posted at 08:05 by Howard Bashman



"Case is dropped against officer at Guantanamo; Nonjudicial punishment used": This article appeared yesterday in The New York Sun.
Posted at 07:56 by Howard Bashman



"Chief Justice Seeks Early Budget Relief from Congress": The Administrative Office of the U.S. Courts issued this press release yesterday.
Posted at 07:54 by Howard Bashman



In today's edition of USA Today: An article reports that "More courts tackle Ten Commandments; Municipalities find creative ways to maintain markers."

And in other news, an article headlined "U.S. tribunal could lose members" begins, "President Bush's attempt to create a separate criminal justice system for foreign terrorism suspects may have hit a significant snag that could result in the replacement of more than half of the first U.S. military tribunal convened since World War II."
Posted at 07:46 by Howard Bashman



Tuesday, September 14, 2004
U.S. Court of Appeals for the Fifth Circuit declares Ivan terrible: Hurricane Ivan has caused the Fifth Circuit's Clerk's Office, located in New Orleans, to remain closed at least through Thursday. An announcement found here states that the Clerk's Office may reopen this Friday. More details on Hurricane Ivan can be found here at the web site of The Times-Picayune.
Posted at 18:14 by Howard Bashman



"Court: U.S. Must Make ID Argument Publicly." The AP provides this report on an order that the U.S. Court of Appeals for the Ninth Circuit issued last Friday. And today, FindLaw columnist Julie Hilden today has an essay entitled "Should The Government's Request to Close Court Proceedings Relating to Airline Anti-Terror List Criteria Be Granted? An Argument for a More Moderate Solution."
Posted at 18:07 by Howard Bashman



"Government Concedes Scalia Erasure Wrong": The Associated Press provides this report. And The Hattiesburg American reports today that "Marshals admit mistake; Service: Agent shouldn't have taken recordings."
Posted at 18:03 by Howard Bashman



U.S. Court of Appeals for the District of Columbia Circuit refuses to order the recusal of U.S. District Judge Royce Lamberth from the Indian Trust litigation known as Cobell v. Norton: You can access today's unanimous ruling by a three-judge panel at this link.
Posted at 17:57 by Howard Bashman



With approximately one day and seven hours left to go, a Justice Sandra Day O'Connor bobblehead doll being auctioned on eBay has a bid price of $265.00: I may be in Lancaster, South Carolina blogging from a coffee shop with a blazing fast internet connection, but that won't stop me from providing an update on the auction of an SOC bobblehead currently underway at eBay. You can view the eBay listing and even offer your own bid via this link. Last Saturday, of course, one of these sold on eBay for $300.00.
Posted at 17:50 by Howard Bashman



U.S. Court of Appeals for the Fifth Circuit declines to overrule Roe v. Wade in appeal brought by Norma McCorvey, formerly known as "Jane Roe": You can access today's unanimous ruling of a three-judge panel at this link.

Circuit Judge Edith H. Jones wrote the opinion of the court and also added a concurring opinion that concluded:
Hard and social science will of course progress even though the Supreme Court averts its eyes. It takes no expert prognosticator to know that research on women’s mental and physical health following abortion will yield an eventual medical consensus, and neonatal science will push the frontiers of fetal "viability" ever closer to the date of conception. One may fervently hope that the Court will someday acknowledge such developments and re-evaluate Roe and Casey accordingly. That the Court's constitutional decisionmaking leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication.
Judge Jones has previously been viewed as a contender for a U.S. Supreme Court nomination.
Posted at 17:34 by Howard Bashman



Monday, September 13, 2004
Programming note: My day job requires my presence in South Carolina for the next few days. I'll be bringing along my laptop computer, so it's possible (if the place where I'm staying truly offers internet access, as it supposedly does) that I will be able to provide new posts at night and before heading out in the morning. Readers are invited to send me emails (a process you can initiate by clicking here) to keep me informed of notable rulings and news coverage. And I promise to scour the local newspaper for any articles of interest to my readership.
Posted at 22:15 by Howard Bashman



When will sanity return to the bobblehead bidding wars? Never, if I have my way. But seriously, the price being bid on eBay for a Justice Sandra Day O'Connor bobblehead doll today increased from $132.50 at 7 a.m. to the current high bid of $247.50. The SOC bobblehead auctioned at eBay this past Saturday morning for $300.00 didn't receive bids this high this early in its auction.

The current auction is due to conclude at 1 a.m. eastern time this Thursday morning. You can view the item and even offer your own bid via this link.
Posted at 22:10 by Howard Bashman



Available online from law.com: An article reports that "Fight Over Judicial Nominations Heats Up; As election nears, Republicans expected to push for a vote."

In news from California, "Judge Slashes Fees in Microsoft Class Action."

And Shannon P. Duffy has an article headlined "3rd Circuit: Stricter Standard Needed in ERISA Case; Expanding scope of 'Pinto' decision, court rules evidence of procedural bias requires moderately higher scrutiny."
Posted at 22:06 by Howard Bashman



A first-hand report from the Eighth Circuit's Appellate Practice Institute, which is taking place today and tomorrow in St. Louis: Tonight, a reader emails:
I spent the afternoon (and will spend tomorrow morning) at the Eighth Circuit Practice Institute in St. Louis. This afternoon's session included a panel Q&A with Judges Wollman, Bowman, and Hansen. Judges Hansen and Wollman both referred repeatedly to How Appealing. In responding to questions about briefwriting and oral argument, one quoted from the twenty questions with Chief Justice Abrahamson and the other quoted repeatedly from the twenty questions with Judge Easterbrook. It was apparent that they both are very regular readers.

Since I know you're speaking here later in the month at the electronic filing conference, you may also find it of interest that, when asked about electronic briefs, Judge Hansen said that if the day ever arrived when he had to read briefs on a computer screen, he would retire. Judge Bowman said, "Ditto." Judge Wollman then said that he would not know what to do with a hypertext brief, and Judge Hansen said that he knew Judge Wollman was exaggerating because he knew that when Judge Wollman reads How Appealing, he knows how to click on the "blue" text to go look at something that interests him. It got a big laugh.
Thanks much to the reader who kindly took the time to send this along. I am certainly looking forward to my visit with the Eighth Circuit's judges later this month.
Posted at 21:27 by Howard Bashman



En banc U.S. Court of Appeals for the Federal Circuit holds, on a claim of willful infringement, that it is no longer appropriate to draw an adverse inference that an opinion of counsel was or would have been unfavorable from an alleged infringer's failure to produce an exculpatory opinion of counsel: Today the Federal Circuit issued its en banc ruling in the Knorr-Bremse case. For those who are likely to find this of interest, I need say no more. After the en banc Federal Circuit heard oral argument in the case, the "Patently Obvious" blog had a post titled "Willful Patent Infringement: en banc appeal."
Posted at 21:11 by Howard Bashman



"Court approves first same-sex divorce in Canada": Canadian Press provides this report.
Posted at 21:01 by Howard Bashman



"Ex-Alabama justice pushes judicial plan; Congress in no rush": The Associated Press provides this report.
Posted at 20:56 by Howard Bashman



"Miranda sues Ashcroft; Former GOP aide strikes back over memogate scandal": This article will appear in Tuesday's issue of The Hill.
Posted at 20:55 by Howard Bashman



Don't overlook today's "20 questions for the appellate judge" interview featuring Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin: I usually publish this feature on the first Monday of each month, but because the first Monday of this month was a state and federal holiday, the interview was instead published today. You can access the interview online here and here. Both "WisBlawg" and Law Professor Ann Althouse have kindly noted the interview.
Posted at 19:27 by Howard Bashman



"Moussaoui case sent back to trial court": CNN.com provides this report. And The Washington Post offers a news update headlined "Court Rejects Moussaoui Bid; Appeal Would Have Made Him Ineligible for the Death Penalty."
Posted at 19:07 by Howard Bashman



"Moussaoui Allowed to Question Detainees": The Associated Press provides this report.
Posted at 17:27 by Howard Bashman



BREAKING NEWS -- U.S. Court of Appeals for the Fourth Circuit decides latest appeal in the Zacarias Moussaoui case: You can access today's ruling, by a three-judge panel, at this link. Even those with a very quick internet connection will find that the opinion takes quite some time to download, because it is a scanned 90-page PDF file featuring plenty of redactions. Each of the three judges on the panel has written separately to some extent. As best as I can tell at first glance, Moussaoui has won on some of the issues, and the federal government has won on some of the issues.
Posted at 14:45 by Howard Bashman



"Debate Club": legalaffairs.org today has launched its "Debate Club" feature, which this week focuses on the question "How should the U.S. try suspected terrorists?" Click here to view the discussion as David B. Rivkin and Lee A. Casey debate Jenny Martinez.
Posted at 12:17 by Howard Bashman



"Don't have a cow, man!" A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit today issued this ruling addressing claims of unfair competition and trademark infringement brought by the computer manufacturer Gateway, Inc. against the seller of computer-related stuffed animals.
Posted at 12:10 by Howard Bashman



"Bloggers Find Clicks Don't Mean Cash": The Associated Press provides this report.
Posted at 11:08 by Howard Bashman



"Poll position: Is the Justice Department poised to stop voter fraud--or to keep voters from voting?" Jeffrey Toobin has this article in the September 20, 2004 issue of The New Yorker.
Posted at 09:42 by Howard Bashman



"The Military's Mess At Guantanamo And How To Fix It": Stuart Taylor Jr. has this essay in today's issue of National Journal.
Posted at 09:41 by Howard Bashman



"GOP Cools to Judicial Gambit": Roll Call today contains an article that begins, "Still short of the votes needed to change Senate rules, Republicans said they are likely to hold off on a unilateral attempt to end the Democratic blockade of judicial nominations until next spring at the earliest." The remainder of the article requires a subscription to access.
Posted at 09:39 by Howard Bashman



"Schwarzenegger Is Fair Game; He's a pol now, and bobblehead dolls are part of the territory": Susan Seager has this op-ed today in The Los Angeles Times.

And speaking of bobblehead dolls, a Justice Sandra Day O'Connor bobblehead doll sold at auction on eBay this weekend for $300.00. The many disappointed bidders on that item will be pleased to learn that another eBay auction of an SOC bobblehead is already underway, and the bid price is now just $132.50. This second auction is due to conclude very early Thursday morning eastern time.
Posted at 07:04 by Howard Bashman



"Millions keep pouring in for justices": This article appears today in The Cleveland Plain Dealer.
Posted at 07:03 by Howard Bashman



"U.S. Supreme Court sentencing decision could affect local cases": The North County Times of California contains this article today.
Posted at 07:00 by Howard Bashman



"Suicide law gives advocates hope; Oregon's unique rule could have an effect in other states": This article appears today in The Salem Statesman Journal.
Posted at 06:59 by Howard Bashman



In same-sex marriage-related news from Louisiana: The Times-Picayune reports today that "Vote won't end gay marriage debate; Amendment may face legal challenges."
Posted at 06:58 by Howard Bashman



"A Trial Lawyer on Ticket Has Corporate U.S. Seeing Red; With Edwards as their lightning rod, business interests see Nov. 2 as critical to 'legal reform'": David G. Savage has this article today in The Los Angeles Times.
Posted at 06:57 by Howard Bashman



"Ogletree To Face Discipline for Book Error": This article appears today in The Harvard Crimson.
Posted at 06:54 by Howard Bashman



Seals and Cross: The San Diego Union-Tribune today contains an article headlined "County may cross off cross from official seal." And The Los Angeles Times today reports that "Oilmen Upset About New County Seal; Planned removal of derricks symbolizing vast oil fields does not sit well in Signal Hill." You can view the proposed new Seal of the County of Los Angeles via this link.
Posted at 06:52 by Howard Bashman



"Too-tough penalty gets state's 'indecent solicitation' law tossed out": The Chicago Sun-Times contains this article today.
Posted at 06:50 by Howard Bashman



"Pepperdine Law School Adds Some Starr Power; As the new dean, the man who headed the Whitewater investigation brings his skills to the Malibu institution": This article appears today in The Los Angeles Times.
Posted at 06:32 by Howard Bashman



20 Questions for Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin: "How Appealing" is very pleased that Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin has agreed to participate in this web log's monthly feature, "20 Questions for the Appellate Judge."

Chief Justice Abrahamson was born in New York City on December 17, 1933. She received her bachelor's degree from NYU in 1953, her law degree from Indiana University Law School in 1956, and a doctorate of law in American legal history in 1962 from the University of Wisconsin Law School. She is the recipient of fourteen honorary Doctor of Laws degrees and the Distinguished Alumni Award of the University of Wisconsin -- Madison. She is an elected fellow of the Wisconsin Academy of Arts and Sciences, the American Academy of Arts and Sciences and the American Philosophical Society.

Following law school, Abrahamson worked at Columbia University Law School and then in Madison, Wisconsin in the private practice of law for fourteen years and was a tenured professor at the University of Wisconsin Law School.

In 1976, Abrahamson was appointed to the Supreme Court by Wisconsin Governor Patrick Lucey and became the first woman to serve on that court. Wisconsin voters elected her to a ten-year term on the court in 1979. She won reelection in 1989 and became the court's first female Chief Justice in 1996. She again won reelection in 1999 and, from 2003 until recently, presided over a court on which females constituted a majority.

Chief Justice Abrahamson currently serves as President of the National Conference of Chief Justices, as chair of the board of directors of the National Center for State Courts, and as a member of the board of directors of the New York University School of Law Institute of Judicial Administration and the Council of the American Law Institute. She was chair of the National Institute of Justice, National Commission on the Future of DNA Evidence and has also served on the State Bar of Wisconsin's Commission on the Delivery of Legal Services and American Bar Association's Coalition for Justice.

Chief Justice Abrahamson's chambers are located in Madison, which is also where the Supreme Court of Wisconsin sits in the State Capitol.

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

1. As the first female to serve on the Supreme Court of Wisconsin, and as that State's first female Chief Justice, you are a historic figure. It has been recently reported that Wisconsin's Governor has decided to appoint the first African-American to the court. In your view, do the press and public focus too much on the breaking of these gender and racial barriers, or is the attention merited and useful? Do you think that a jurist's gender or race makes a difference in how cases or decided or in how the justice system is perceived? And does it surprise you, for example, when the press reports that your court divided along gender lines in reaching a decision, as happened in 2001 in an article headlined "High court limits dad's procreation; Justices split on gender lines in child support case"?

"Firsts" that break records or break barriers are events to celebrate. It's newsworthy that I was the first female justice in the 128-year history of the Wisconsin Supreme Court, especially in light of the fact that the Court declared in 1875 that women lawyers could not even practice before the Court. Justice Louis B. Butler, just appointed to the court by Governor James Doyle, is the court's first person of color. There is bound to be public interest in and media attention to these firsts.

The composition of the judiciary and court staff affects the public's perception of the institution. People are more comfortable with and are more trusting of an institution that reflects the rich diversity of our population. Ultimately, however, it is the ability of the judges and the quality of their judgments that are most important. Fortunately, society is recognizing that good lawyers, good judges, and good people need not all look alike.

As far as I know, the article you cite noting the gender split in State v. Oakley, 2001 WI 103, 248 Wis. 2d 654, 635 N.W.2d 760, was the first article of its kind with respect to our court. It was surprising that the gender split in that case was emphasized. Divisions of the court on gender lines are not usual but have occurred occasionally probably before and after Oakley.

2. In April 1999, you won reelection to the court by a decisive margin in a contest that an editorial published in The Milwaukee Journal Sentinel characterized as "the Supreme Court campaign from hell; the political equivalent of death by 1,000 cuts; a black hole of intrigue and stealth, sucking whatever good is left in politics into the mire of negative campaigning." Four of your colleagues on the court on which you served as Chief Justice publicly endorsed your opponent, and an article published after the election was headlined "High-court race brings reform cries." To the surprise of some, two years later you spoke publicly about your continued support for judicial elections, and that speech was published as a law review article. Let's say, hypothetically speaking, that a 51st State is created and you are put in charge of deciding the method for selecting that State's appellate judges. What method would you select, and why? In your view, is it appropriate for sitting justices to announce a position on whether their colleagues should be elected or defeated at the polls, have you announced your views in that regard with respect to your colleagues' candidacies, and why or why not? And finally, was it necessary for the Court to use a mediator to overcome the "deep-seated disputes" that arose during your most recent campaign for reelection?

The method for selecting federal judges was debated at the founding of our country. The method for selecting Wisconsin state judges was vigorously debated in the Wisconsin constitutional conventions. Each state has adopted its own method for selecting judges, and the search continues for the "best" method. Wisconsin has always elected its judges. It probably always will because of the state's deep populist and progressive traditions. We're comfortable with this system, even though, like all others, it has flaws.

Scholars, lawyers and bar associations have been nearly unanimous in condemning judicial elections; they support the federal system of appointment and "life tenure." But the federal system isn't without its own warts. Judge Reinhardt graphically described some of the worst aspects of federal appointments in his 20 Questions interview on How Appealing.

There is no perfect system for selecting judges. No system guarantees the best qualified judges, even if we were to agree on what "best qualified" means. Each selection method has its strengths and weaknesses, and states have evaluated the pluses and minuses of each selection system differently. Nevertheless, over 80% of state trial and appellate judges in this country stand for election of some type.

The method for selecting judges in a particular state--and in your hypothetical new 51st state--necessarily reflects the legal and political culture of the state, as well as its geographical size, population, and media markets. If the 51st state were similar to Wisconsin, I would favor non-partisan judicial elections with "long terms" for the judges. I have reread my NYU article, and I continue (perhaps not surprisingly) to be persuaded by my reasoning. I favor elections because I favor transparent government. Too much of what goes on in the appointment and confirmation process is kept behind closed doors; the public does not have an opportunity for meaningful participation in the process. Ideally, the elective system can also be an educational experience for both the judges and the electorate.

I do not subscribe to the view that elected judges are more (or less) likely than appointed judges to tailor a decision to the wishes of the legislature, the executive, or popular opinion. Experience demonstrates that appointed judges, even those with life tenure, are not free from outside pressures, whether in the selection process or thereafter. Indeed in recent years some life-tenured federal judges have asserted that their independence is being threatened.

No constitutional or statutory safeguards can guarantee judicial independence. The qualities most needed in judges are courage and personal integrity, both of which are indispensable to independence. The stakes are higher for elected judges who do not have life tenure, but the best judges, whatever the selection or retention system, are those who resist threats to judicial independence.

Nevertheless, I recognize problems inherent in the elective system. Low voter turnout and inadequate information regarding judicial qualifications diminish the democratic significance of elections. Issues of campaign speech and campaign financing loom large. See Republican Party of Minnesota v. White. But rather than scuttle elections, we should attempt to minimize the problems and should use elections as vehicles for voter education about the judicial system--especially the core value of decisional independence.

Although Wisconsin justices have and may support candidates for the court, I have never done so. My task is to work with the justices appointed by the governor and elected by the people.

"Deep-seated disputes," if any, dissipated with their exposure to the "sunlight" of a campaign, an affirmative vote for the sitting chief justice of about two-thirds of the electorate, and a commitment by all members of the court to work for the public good. The "chemistry" on the Wisconsin Supreme Court today is good, the collegiality pervasive, and we're committed to keeping it that way.

3. The composition of your court has changed quite a bit from what it was in 1999, and only two of the Justices who publicly supported your defeat at the polls continue to serve on the court. Are you pleased with how the court is functioning today as a collegial body, is the court current with its workload, and what additional duties and responsibilities, if any, does the Chief Justice of your court have in comparison with the duties and responsibilities of the other Justices?

The court is current with its workload and is functioning well, although we are always open to changing our internal procedures to improve the system. Each year the court decides about 1000 petitions for review, resulting in about 90 cases on full appellate review. Additionally, we hear attorney and judge discipline cases and petitions for rule making on such matters as the code of judicial conduct, the code of judicial responsibility, and matters of practice, pleading and procedure.

As chief justice, I preside over oral arguments and the court's adjudicative and administrative conferences. I work closely with the director of state courts and court staff, chief trial judges and district court administrators, and chair or serve on numerous court committees. Under Article VII, § 4 of our state constitution, "the chief justice shall be the administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court."

Although these administrative duties take a tremendous amount of time, they are rewarding. I have made a prolonged effort during my tenure on the court to promote court programs that improve the administration of justice. These include increasing volunteers in the courts, providing assistance to pro se litigants, certifying court interpreters, creating unified family courts, improving the protection of children, developing new opportunities for judicial education within the state, nationally and abroad, establishing legislative-judicial seminars, improving relations among state, federal and tribal courts, and increasing public outreach.

The court's jurisdiction is statewide. All the justices travel across the state and speak to many audiences. The court has undertaken a significant program of educating students and teachers about the courts, including our court with class sessions and our teacher institutes. We sponsor court "ride-a-longs" for state and local legislators and media and sentencing exercises for media. These are just a few of our outreach programs. You can find them described on our website: www.wicourts.gov. Many state courts are engaged in public outreach, and the federal courts are starting their own programs--all to the good of the courts and the people.

4. The U.S. Supreme Court in June 2002 announced its ruling in Republican Party of Minnesota v. White, No. 01-521. By a 5-4 margin, the Court struck down as unconstitutional a judicial campaign restriction intended to prevent candidates for elected judicial offices from announcing views on disputed legal or political issues. Do you view the U.S. Supreme Court's ruling as a positive development, a negative development, or somewhere in between?

It is still too early to evaluate the impact of White on either elected state judges or appointed federal and state judges. The concern is that White is a threat to an impartial judiciary and will weaken public trust and confidence in the judiciary. Pending and future cases will clarify the meaning and scope of White.

5. One of your former colleagues recently left your court to join the U.S. Court of Appeals for the Seventh Circuit. While she achieved confirmation without much difficulty, that has not been the case in recent years for all nominees to federal appellate court vacancies. As someone who can watch these developments unfold at something of a comfortable distance, what are your views on the judicial confirmation battles underway in the U.S. Senate, the use of filibusters, and the use of recess appointments to place filibustered nominees onto the federal appellate courts?

It's good on a personal level to be "at something of a comfortable distance" from the process, and my interest is academic, not personal. Although much is written about the "horrors" of the elective system, not enough scholarship and attention is devoted to the "horrors" of the federal appointive system and how the President and the Senate can improve the appointive system.

6. What are your most favorite and least favorite aspects of being an appellate judge?

My favorite aspects of being an appellate judge on the highest state court are that I can work on important cutting edge legal issues and resolve them fairly and justly not only for the parties involved but also for the law of the state, that I discuss the judicial system with the public and listen to the people's concerns, and that I have opportunities to improve the administration of justice. My least favorite aspect of the job is my concern about whether we have given enough time to each case.

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

Chief Justice William Rehnquist. Chief Justice Rehnquist is widely viewed as being exceedingly fair as a chief justice in his relations with each justice and in presiding over the court's conferences and the federal system. Because I understand the difficulties of administering a court system and the variant interests that are necessarily involved, I have a tremendous respect for anyone that can earn such wide praise. The Chief Justice also has made the time to be an author and contribute to public understanding of the judiciary. Let's also not forget he is a son of Wisconsin!

8. How did you come to Governor Lucey's attention as a potential Supreme Court nominee, when did you first realize that you might be interested in being an appellate judge, what concerns if any did you have about becoming the first female to serve on the Supreme Court of Wisconsin, and did any of those concerns prove to have merit?

My first encounter with Patrick Lucey personally was around 1963–64, before he was governor. I was one of the drafters of Madison's open-housing ordinance making it unlawful to discriminate in the sale or rental of certain real estate on the basis of race. Almost every large realty company in Madison vehemently opposed the ordinance. Pat Lucey of Lucey Realty Co. was the lone realtor of a large company to appear at the city council meeting and publicly support the ordinance. (The proposed ordinance was very controversial; it passed on a tie vote of the council with the mayor casting the deciding vote).

I then met Pat Lucey again in the late 1960s when Madison was in turmoil over the Vietnam War. I was working with community leaders attempting to keep peace in the community and went to Pat's home late one night to urge him to offer the student community use one of his large vacant neighborhood lots as a garden. He agreed.

That was largely the extent of my interaction on a personal level with Pat Lucey until he appointed me in 1976. We did have a number of mutual friends.
I never considered becoming a judge until I saw my name in the newspaper in 1974 as a possible appointee to the Supreme Court. I did not get that appointment. I got the next one.

Because I do not think my gender negatively affects my ability to do any job I undertake, being a woman did not concern me when I became a judge.

9. The Journal Sentinel in early August 2004 published an article headlined "State's law students get free pass on bar exam; Despite detractors, age-old privilege likely to remain." According to the article, Wisconsin is today the only State to confer such a "diploma privilege" on its in-state educated law students, having outlasted the States of Mississippi, Montana, and West Virginia, all of which abandoned similar policies in the 1980s. Why does Wisconsin adhere to this policy, why should graduates of in-state accredited law schools be assured of the ability to practice law in Wisconsin while graduates of other fine out-of-state law schools are not, and what purpose does the bar exam serve in any event?

The diploma privilege makes good sense for Wisconsin. The Wisconsin Supreme Court (in charge of attorney admissions) is very familiar with the two excellent A.B.A. accredited schools in Wisconsin: the University of Wisconsin Law School and Marquette University Law School. Both schools have high standards for admission and graduation. To qualify for the diploma privilege, students must take certain courses (determined by our court as being fundamental) and achieve a certain average score for those courses. In short, we have confidence in the quality of graduates from these two schools.

Those graduates that do move out of state after graduation typically do very well on other states' bar exams. If there were any indication that graduates from UW or Marquette were less prepared for the practice of law compared with graduates from other schools, we would be the first to look for another system. There are currently no plans to alter the diploma privilege.

For states with only a few accredited law schools, the diploma privilege is a terrific system. In fact, some states are currently considering adopting the diploma privilege. Wisconsin should not be viewed as the last to retain the diploma privilege; I like to think of Wisconsin as the leader on this issue, not the holdout.

Wisconsin does give a bar examination to students who graduate from out-of-state law schools. I have served on the bar examination commission and have taken two bar exams. I do, however, have reservations about the traditional bar examination. I am not sure what the examination measures. Most students from accredited law schools end up passing a bar examination on at least the second attempt. While many law firms reimburse students for costs associated with taking the bar, the bar examination forces students who are already financially burdened to incur additional expenses; the bar exam delays students' entrance into the workforce while they study for the bar or wait for results.

As is the case with many systems, it is easy to criticize. The question of what is a better replacement looms large but is not easy to answer. The National Conference of Bar Examiners (headquartered in Madison and headed by a Wisconsin lawyer) is experimenting with different types of examinations. Until there is evidence of a better system (except for the diploma privilege of course), states will continue to use the traditional bar exams.

10. Congratulations on having recently begun your tenure as President of the National Conference of Chief Justices. Please explain what that organization exists to accomplish and whether you have any particular goals that you hope to achieve during your year as the organization's leader.

Thank you. I am quite honored to sit as this year's president of the Conference of Chief Justices. The organization was founded in 1949 as a means of getting the states' highest judicial officers together for discussions of issues affecting their respective judicial systems and learning from each other. Collectively we are able to exchange valuable information about current problems and possible resolutions, how various programs are working in different states and in what ways we might be able to improve the administration of justice in our own state. Each of us innovates and communicates.

The past, present and future presidents of the conference work together to achieve continuity of programs from one year to the next. I am therefore continuing the good work of my predecessors in streamlining the structure of the conference, improving our educational programs, increasing communication among the states, reviewing and commenting on the impact of proposed federal legislation on state courts, filing amicus briefs in appellate cases raising issues of concern to state courts, and moving forward with our activities in protecting children, promoting public trust and confidence, working with the federal judicial system, and tackling new and continuing issues in the administration of the criminal justice system.

11. When you joined the Supreme Court of Wisconsin, the state did not yet have an intermediate appellate court. How was your work on the Supreme Court, and the practice of law, different before the Wisconsin Court of Appeals came into existence? And please explain the direct review and bypass procedures that allow a case to come to your court without passing through the Court of Appeals, and how often and in what sort of cases are those procedures used?

The establishment of the court of appeals dramatically changed the work of the Supreme Court. Before the court of appeals, the Supreme Court decided several hundred cases a year and had a substantial backlog--perhaps two years' worth of cases. Now the Court focuses on the cases that raise significant legal issues of statewide importance and we are able to give those cases more time.

As you mention, we have two procedures, Direct Review and Petition to Bypass, in addition to a Petition for Review and Certification by the Court of Appeals. Both Direct Review and Bypass are rarely used.

Under Direct Review, this Court can reach down and give itself jurisdiction over a case, without any request from the parties or a court. As far as I can remember, the Court has never used this power.

In Bypass, a party to a circuit court case asks this court to hear the case before the court of appeals rules on it. Very few bypasses are requested, and in past years we have granted from zero and two bypasses.

12. 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, isn't it true that Justices serving on courts of last resort sometimes have little other than their own personal preference concerning the result to guide them in deciding cases?

An appellate judge's personal and political ideology or personal preferences should not play a role in deciding cases. In many cases I reach a decision that I would prefer not to reach. Nevertheless I feel compelled to reach that decision because of the facts and applicable law.

The justices of the Supreme Court of Wisconsin come from different political, ideological, social, geographical, and economic backgrounds. They bring their varied experiences in their personal lives and in their legal careers to the cases. The justices may have different jurisprudential views about the role of courts and about principles of statutory and constitutional interpretation. These experiences and different views of the law may very well play a role in decision-making. The key requirements of an appellate judge are to have an open mind and read (and check) all the materials submitted.

Decision-making involves judgment. If only one result was possible in every case, we would not need a court of seven persons, one judge would be sufficient. Indeed, we might not need any judges at all. A computer could spit out the decision.

13. You have taught at law schools, 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?

Law schools keep changing their curriculum and practices. That's good. Law schools ought to be even more innovative and creative. Too many law schools follow other schools instead of making use of their own faculty and student talent and regional interests.

I like the approach taken at the school I know best, the University of Wisconsin Law School. I describe the school's approach as "eclectic." Students are exposed to traditional and non-traditional courses and methods of teaching and strong clinical programs. This cornucopia of offerings benefits not only the students, but also benefits Wisconsin's legal community, the general citizenry, other law schools, and other states.

14. How do you make use of your judicial law clerks, what qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates whom you wish were applying but haven't been?

Wisconsin Supreme Court justices (including me) have only one full time, salaried law clerk apiece. We also have the opportunity to collaborate with law school students who, as part of their legal education, work in chambers. Selecting a law clerk for each one-year term is one of the most important decisions I make. I look for people who have strong research, writing and analytical skills and are willing to think and rethink positions and work long hours--all with a sense of humor. I value clerks who have had varied life and work experiences. I have been fortunate to get applicants from law schools all over the country, but would also welcome a more racially diverse pool of applicants.

15. What are the three most important suggestions you have for attorneys concerning how they can improve their written work product filed with the Supreme Court of Wisconsin?

Lawyers should let their briefs "rest" for a week or so and then reread and edit them. Lawyers should ask other lawyers and non-lawyers in their office to read and edit the briefs. Too often lawyers jump right into the legal nuances of the case without explaining, in clear terms, the legal context in which the case arises and they fail to persuade the Court why it should decide in their favor.

16. Similarly, what are the three most important pieces of advice you have for attorneys concerning how they can improve their performance at oral argument?

First, know the record, your brief, and the cases on which you rely. Second, moot the case with other attorneys in your firm or with law students or faculty (a group often overlooked as a valuable resource). In short, practice practice practice! During practice sessions you will probably be asked many of the same the questions the Court will ask. Third, decide the two or three major points you want to make with the court. Keep them firmly in mind and make them at least once but probably several times. These same suggestions are given over and over by appellate judges and they warrant repeating.

17. A couple of years ago, The Journal Sentinel reported on a day when you found yourself "perched in one of Milwaukee's most detested judicial assignments" filling in for a vacationing judge in small claims court. How did you enjoy your time on the bench at small claims court, and is that something that you might volunteer to do again?

Working as a judge in small claims court was one of the most difficult tasks I have undertaken, but I enjoyed it immensely. I had to hear and decide a case from the bench every 15-20 minutes, usually without the assistance of lawyers arguing the issues. But I got to meet people, hear their problems directly from them, and resolve disputes right from the bench, all while helping people. I'll do it again even though I know that it will be harder for me to sit a week in small claims court than to sit a week in the Supreme Court. The preparation for small claims court was horrendous. I read numerous statutes, pages of regulations I had never seen before, cases and the sparse case files. I was overwhelmed by the amount of law I needed to master and have readily available, just in case the issue arose. The volume of cases and the tumult of the courtroom was exhausting.

When I first offered to sit in small claims court I was not fully aware of the difficulty of the assignment. I am now wiser and have a much greater appreciation for the work done by judges at all levels of our state's judicial system.

In keeping with my belief that judges ought to experience the judicial system from different vantage points, I have sat as a juror in both civil and criminal cases and have initiated a program in which Wisconsin court of appeals judges can sit as trial judges and trial judges can sit as court of appeals judges.

18. Are the salaries now paid to state court judges in Wisconsin too low? What should those judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

Judges' compensation in recent years has not kept up with the increase in the cost of living, and serving as a judge is therefore often not attractive to practicing lawyers. Some first year law graduates are paid as much as, or more, than experienced judges. Judges should be compensated reasonably so that judgeships attract good lawyers and are open to people who are not independently wealthy. Judges' compensation should be in line with the compensation of other state officials, with judges in other states, and with government lawyers. Any compensation system necessarily must reflect the state's fiscal situation.

19. Your biography shows that you were born and raised, and attended undergraduate and law school, outside of Wisconsin. At what point in your life did you become a resident of Wisconsin, and why? Also, if there is anything else that you would like to say about the quite lovely State of Wisconsin, please feel free to do so now.

My husband and I moved to Wisconsin in 1956 for his post-graduate work at the University of Wisconsin. We left Wisconsin from 1957-60, returned to Madison in 1960, and have been here ever since--more than 40 years. My son, now an attorney in California, was born and raised in Wisconsin.

I am always happy to talk about the great state of Wisconsin. While Wisconsin is often associated with its excellent sports teams and its tourism, it is a wonderful state to live in with a world-class university, a well-educated citizenry, a great history and a strong progressive tradition. Its people have sound values and a strong work ethic, and there is a consistent tradition of good government serving the people.

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

Whatever spare time I have I use to the maximum. I enjoy traveling and have visited much of the United States and all seven continents. I recently returned from a trip to China and Mongolia, where I combined judicial work (lectures) and tourism. The theater, art galleries, museums, and of course, shopping, are also activities I enjoy. My newest, and what promises to be my most consuming, spare time passion is my nine-month old grandson. As my law clerk and others will attest, no one is safe from having to view photos of him and hear about his feats in manipulating finger food.
Posted at 00:00 by Howard Bashman



Sunday, September 12, 2004
"A Tournament of Virtue": Law Professor Lawrence B. Solum, author of the "Legal Theory Blog," has recently posted to SSRN a law review article that attempts to answer the question "How ought we to select judges?" You can access the article via this link.
Posted at 22:45 by Howard Bashman



The Los Angeles Times is reporting: Today's newspaper contains an article headlined "Not Just Blowing Smoke: Few thought the case would get this far; Five years after its filing, the federal lawsuit against the tobacco industry is nearing trial."

And in local news, "D.A. Opposes Deportation of Sex Offenders; Prosecutors want violent predators placed in state hospitals after their prison terms, not returned to their home countries."
Posted at 22:28 by Howard Bashman



"Picking the big battles: Berkeley lawyer running big lawsuits against such giants as Wal-Mart, Costco." This article appears today in The San Francisco Chronicle.
Posted at 22:12 by Howard Bashman



In today's edition of The Washington Post: Charles Lane reports that "Air Force Spy Trial to Proceed Despite Modified Evidence." And the newspaper also contains articles headlined:
Posted at 22:00 by Howard Bashman



"Izzle": Kathleen E. Miller is the author of today's "On Language" column in The New York Times Magazine. In it, she writes:
And now the izzle is everywhere, and not just in commentary about Snoop Dogg or incongruous sound bites used as comic relief in movies (like Newhart's deadpan fo' shizzle in "Legally Blonde II") and commercials (like Drescher's nasally "my shizzle's gone fazizzle" in her role hawking everything Old Navy). It's actually been used, seriously, in the pages of Business Week and Fortune. Even Britain's High Court hasn't been immune, confronting what might as well have been a "foreign language," as one account put it, in a 2003 copyright case. The case, Mr. Justice Lewison (seems they don't allow judges to have first names in England) told the BBC, "led to the faintly surreal experience of three gentlemen in horsehair wigs examining the meaning of such phrases as . . . shizzle my nizzle." A truly remarkable bit of jurisprudence
Back in June 2003, I linked to news coverage reporting on the British court's encounter with the terminology in a post titled "Shizzle my nizzle: lyrics leave judge lost for words."
Posted at 18:55 by Howard Bashman



"No Disputing It: Blogs Are Major Players; Netizen's late-night post questioning CBS claims about Bush's service spreads at warp speed." This article appears today in The Los Angeles Times.
Posted at 14:46 by Howard Bashman



Programming note: At midnight, I will be posting online the September 2004 installment of "20 questions for the appellate judge." This month's interviewee is Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin, and the interview appears to have turned out quite well.

On a related subject, thanks much to those readers who have already emailed to suggest questions or topics for October 2004's interviewee, D.C. Circuit Judge Harry T. Edwards. Any other readers who wish to propose questions or topics for questions that I should ask Judge Edwards should feel free to send them along via email, a process you can initiate by clicking here.
Posted at 14:33 by Howard Bashman



With slightly more than three and a half days left to go, another Justice Sandra Day O'Connor bobblehead doll being auctioned on eBay has a bid price of $132.50: You can view the eBay listing and even offer your own bid via this link. Yesterday, of course, one of these sold on eBay for $300.00.
Posted at 11:10 by Howard Bashman



In same-sex marriage-related news: The Winston-Salem Journal today contains an article headlined "Referendums hitting gay marriage; Conservatives hope issue will entice voters who will then go with Bush." And from Vermont, The Times Argus reports today that "Gay rights struggle for marriage a key issue."
Posted at 11:07 by Howard Bashman



In Blakely-related news from North Carolina: The Herald-Sun reports today that "Ruling baffles attorneys, judges."
Posted at 11:04 by Howard Bashman



"Crawford decision could change law, experts say; Supreme Court ruling overturns admissibility of pre-trial testimony": The Marshfield (Wis.) News-Herald contains this article today.
Posted at 11:02 by Howard Bashman



"Daughters of slain man at center of feuding families; Visitation: Grandparents' rights murky." This article appears today in The Daily Herald of Suburban Chicago.
Posted at 11:01 by Howard Bashman



"The Constitution: A living document? Looking beyond the text a matter for debate." Ray Cooklis has this editorial page essay in today's edition of The Cincinnati Enquirer.
Posted at 10:59 by Howard Bashman



"New County Seal Is the Picture of Controversy": These letters to the editor appear today in The Los Angeles Times.
Posted at 10:58 by Howard Bashman



"For new justice, it's a case of perspective": The Newark Star-Ledger today contains an article that begins, "Roberto Rivera-Soto, the first Hispanic justice on the New Jersey Supreme Court, says he really enjoys a good debate."
Posted at 10:56 by Howard Bashman



"U.S.-state pot fight snags area grower; The court appeal of two ailing women may tip the scales": This article appears today in The Sacramento Bee.
Posted at 10:55 by Howard Bashman



Saturday, September 11, 2004
"Vanity Fair Publishes Inside Scoop on Bush v. Gore": Orin Kerr has this post tonight at "The Volokh Conspiracy." Orin writes that because this article isn't freely available online, he "had to plunk down $4.50 for a very glossy paper copy" of the magazine.
Posted at 23:48 by Howard Bashman



"Governor and Former Stuntwoman Settle Suit; Schwarzenegger won't seek legal fees awarded when the libel case was dismissed, and Rhonda Miller won't file an appeal": This article appears today in The Los Angeles Times.
Posted at 23:38 by Howard Bashman



"Pa. Internet child-porn law is ruled illegal": The Philadelphia Inquirer contains this article today.
Posted at 23:29 by Howard Bashman



"The John Smith of banks; As it expands across US, all-too-common name spells grief for Citizens": This article appears today in The Boston Globe.
Posted at 23:23 by Howard Bashman



In today's issue of The Washington Post: The newspaper contains articles headlined:
Posted at 23:14 by Howard Bashman



The New York Times is reporting: Today's newspaper contains articles headlined:
Posted at 23:03 by Howard Bashman



"Justice refuses to step down from case over campaign donations": The Associated Press provides this report from Alabama.
Posted at 23:01 by Howard Bashman



"Long Term in Drug Case Fuels Debate on Sentencing": Adam Liptak will have this article in Sunday's edition of The New York Times.
Posted at 23:00 by Howard Bashman



"Governor to consider 3 nominees for high court": This article appears today in The Oklahoman.
Posted at 22:55 by Howard Bashman



The eBay auction of a Justice Sandra Day O'Connor bobblehead doll has concluded: The winning bid was in the amount of $300. You can view the eBay listing here and its bid history here. Fortunately for disappointed bidders, another SOC bobblehead is already being auctioned on eBay at this link.
Posted at 14:17 by Howard Bashman



Some potential good news for disappointed bidders in today's eBay auction of a Justice Sandra Day O'Connor bobblehead doll: Very early this morning, another one was listed online for auction here. Someone has already bid $75.00 in this newly posted auction, which is due to end very early Thursday morning eastern time.
Posted at 13:30 by Howard Bashman



With exactly one hour left in the eBay auction, the amount bid for a Justice Sandra Day O'Connor bobblehead doll has risen to $241.00: You can view the eBay listing (and even offer your own bid, if you act quickly) via this link.
Posted at 13:17 by Howard Bashman



eBay auction for Justice Sandra Day O'Connor bobblehead doll concludes at 2:17 p.m. eastern time today: At this moment, the high bid is $222.50. You can view the eBay listing and offer your own bid at this link.
Posted at 08:28 by Howard Bashman



"Judge candidates mum on issues": This article appears today in The Minneapolis Star Tribune.
Posted at 08:27 by Howard Bashman



"Presentation makes commandments OK": Columnist J. Francis Gardner has this op-ed today in The San Antonio Express-News.
Posted at 08:25 by Howard Bashman



"Judges give different answers on extra prison time": The News Tribune of Tacoma, Washington contains this article today.
Posted at 08:24 by Howard Bashman



"Covington Becomes a Federal Judge": This article appears today in The Ledger of Lakeland, Florida. And The Hattiesburg American yesterday contained an editorial entitled "Move forward with Starrett nomination."
Posted at 08:22 by Howard Bashman



"Testing the tie that binds; Israeli activists marry in Toronto; Face legal battle on return home": The Toronto Star contains this article today.
Posted at 08:21 by Howard Bashman



"Rare honor for 1st Circuit's Selya; Yesterday marked the first time a portrait has been dedicated to an active 1st Circuit judge": This article appears today in The Providence Journal.

The article concludes: "Selya recalled being a law clerk for the late Chief U.S. District Judge Edward W. Day at the federal courthouse in Providence. And today, as the fifth Rhode Islander to ever sit on the 1st Circuit court, Selya's office is just down the hall. So, Selya said, 'In my entire professional career, I've come a total of about 85 feet.' But he said, 'I have enjoyed every inch of it.'"

Judge Selya was this blog's March 2003 "20 questions for the appellate judge" interviewee, and you can access that interview at this link.
Posted at 08:14 by Howard Bashman



In remembrance: Through the front pages of newspapers and through the touching words of Susan Konig first published on Memorial Day 2002.
Posted at 00:00 by Howard Bashman



Friday, September 10, 2004
Available online from law.com: Shannon P. Duffy reports that "Internet Child Porn Act Struck Down; Federal judge concludes law violates First Amendment rights."

In other news, "Satire's Not Free Speech -- Wait, Just Kidding; In First Amendment case, Texas Supreme Court rules in favor of political satire."

And an article is headlined "Compensation for Freed Guantanamo Detainee? It's Possible."
Posted at 23:50 by Howard Bashman



In news from the U.S. Virgin Islands: The Virgin Islands Daily News today contains items headlined:
Posted at 23:44 by Howard Bashman



In today's issue of The Los Angeles Times: The newspaper contains articles headlined:In addition, an editorial is entitled "Trading Liberty for Security."
Posted at 23:40 by Howard Bashman



"Schwarzenegger watches image; Settlement keeps gun-toting doll off store shelves": This article appears today in The Boston Globe.
Posted at 23:35 by Howard Bashman



"Retrial opens on using pepper spray on protesters' eyes": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 23:30 by Howard Bashman



"Suit targets travel-ID mandate": This article appears today in The Washington Times.
Posted at 23:27 by Howard Bashman



The Washington Post is reporting: Today's newspaper contains articles headlined:
Posted at 23:22 by Howard Bashman



In today's edition of The New York Times: The newspaper contains articles headlined:
Posted at 23:17 by Howard Bashman



Sharply divided en banc U.S. Court of Appeals for the Fifth Circuit decides case presenting a quite interesting fraudulent joinder question: The majority opinion in today's 9-7 ruling, written by Circuit Judge Patrick E. Higginbotham, begins:
Today we decide a narrow but not unimportant question regarding diversity jurisdiction in federal courts and the application of the doctrine of "improper joinder." This is the first time this Court en banc has addressed the issue of improper joinder, although a number of panels of this Court have previously addressed it. We hold that, when a nonresident defendant's showing that there is no reasonable basis for predicting that state law would allow recovery against an in-state defendant equally disposes of all defendants, there is no improper joinder of the in-state defendant. In such a situation, the entire suit must be remanded to state court. In this case, it is undisputed that the district court's decision that Smallwood's claims against the in-state defendant were preempted effectively decided the entire case. On these facts, we conclude that the district court erred in deciding the merits of the proffered defense of preemption and in not remanding the case to the state court from which it was removed.
Judge Higginbotham also wrote the three-judge panel's unanimous opinion in this case and this opinion denying panel rehearing. For what it's worth, recess appointee Circuit Judge Charles W. Pickering, Sr. provided what turned out to be the crucial deciding vote in favor of the majority on the legal issue that divided the en banc court.

Circuit Judge E. Grady Jolly wrote the lead dissent, in which all seven of the dissenting judges joined. Circuit Judge Jerry E. Smith also wrote a separate dissent that's a must read for those who enjoy forceful and devastatingly clever dissenting opinions.
Posted at 22:50 by Howard Bashman



"How Do You Solve the Problem of Sharia? Canada grapples with the boundaries of legal multiculturalism." Slate has just posted online this jurisprudence essay by Dahlia Lithwick.
Posted at 18:00 by Howard Bashman



"Apple Valley judge appointed to MN Supreme Court": This article appeared yesterday in The Apple Valley Sun Current. Unlike one of his colleagues on that court, however, this new justice doesn't yet have his own bobblehead doll.
Posted at 17:47 by Howard Bashman



"Judicial standoff": This editorial appears today in The Fairbanks Daily News-Miner.
Posted at 17:43 by Howard Bashman



With less than a day to go, eBay auction price for Justice Sandra Day O'Connor bobblehead doll crosses the $200 threshold: The seller today updated his eBay listing for the item to note, "I had no idea this doll would sell for such an insane amount of money." Well, I'm afraid the seller ain't seen nothin' yet. Meanwhile, this development makes me feel even more sorry for "some poor schmuck."
Posted at 16:47 by Howard Bashman



"LR district will accept search ban; Schools have options, board members told": The Arkansas Democrat-Gazette today contains an article that begins, "The Little Rock School District will accept a decision issued by a federal appeals court that randomly searching students for weapons -- without suspicion -- should be banned." You can access last month's ruling of the U.S. Court of Appeals for the Eighth Circuit at this link.
Posted at 16:14 by Howard Bashman



"Senecas suffer setback in claim on state lands; Court rejects issue of illegal possession": The Buffalo News today contains an article that begins, "A three-judge federal appeals court Thursday unanimously affirmed decisions by U.S. District Judge Richard Arcara denying claims by the Seneca Nation of Indians to Grand Island and other islands in the Niagara River and a stretch of the Thruway property in southern Erie County." You can access yesterday's rulings by the U.S. Court of Appeals for the Second Circuit at this link (Niagara River islands appeal) and at this link (Thruway appeal).
Posted at 15:03 by Howard Bashman



"Judge invalidates Pa. child porn law": The Philadelphia Inquirer provides this report. The Associated Press reports that "Pennsylvania child porn-blocking law tossed". And c|net News.Com reports that "Court strikes down Pennsylvania porn law." You can access online both the opinion (110-page PDF file) and the order that the U.S. District Court for the Eastern District of Pennsylvania issued today.
Posted at 14:46 by Howard Bashman



"Chief Justice Rehnquist Asks for Response from FEC in Wisconsin Right to Life BCRA Case": Law Professor Rick Hasen provides this report at his "Election Law" blog.
Posted at 14:13 by Howard Bashman



"Clinton's outburst: racism at the top; The former US president has charged the Republicans with bigotry and judicial manipulation." Saturday's edition of The Weekend Australian contains an article that begins, "Bill Clinton has delivered an extraordinary blast at America's top judge, William Rehnquist, and an uncharacteristically bitter attack on Republican presidents Ronald Reagan and George W. Bush. Speaking before his recent health scare, the former president accused Rehnquist, the Chief Justice of the US Supreme Court, of deliberately politicising the system of appointing independent investigators, leading to years of relentless, politically motivated inquiries into his presidency."

Later, the article goes on to state:
According to Sue Bloch, a law professor at Georgetown University and an expert on US judicial history, you would have to go back 200 years to Thomas Jefferson to find a president or former president making such a bitter attack on a chief justice.

Dwight Eisenhower said in the 1960s that he regretted appointing Earl Warren as Chief Justice, but there had been no parallel to Clinton's comments since the career-long political feud between Jefferson and Chief Justice John Marshall, Bloch said.

One of Washington's most noted presidential scholars, Norm Ornstein of the conservative think-tank the American Enterprise Institute, said yesterday that some Washington insiders knew privately that Clinton held a low regard for Rehnquist but his views had never been expressed publicly and were "extraordinary things for a former president to be saying".

"I have no doubt the private thoughts of George Herbert Walker Bush or any other president about their opponents and other people, if made public, would make your hair stand on end," he said. "But even after you have left office, to actually say these things to a reporter is very unusual."

Ornstein said he believed Clinton had good reason to be unhappy about Rehnquist's appointment of Sentelle, and the resulting selection of Starr.

The appointment of Sentelle over more senior and less partisan judges was "at a minimum utterly insensitive to the intent of the law" governing such appointments, he said.
According to the article, the complete interview with President Clinton will appear in The Weekend Australian Magazine.
Posted at 12:46 by Howard Bashman



"Student won't stand for pledge": This article appears today in The Wisconsin State Journal.
Posted at 11:32 by Howard Bashman



"Justice Dept. Sentencing Policy Overruled": The Associated Press provides this report.
Posted at 11:10 by Howard Bashman



"Mixed Record for U.S. in Prosecuting Terror Cases": Today's broadcast of NPR's "Morning Edition" included this segment (Real Player required).
Posted at 09:30 by Howard Bashman



"Court reinstates killer's death sentence": The St. Louis Post-Dispatch today contains this article reporting on a ruling that the U.S. Court of Appeals for the Eighth Circuit issued yesterday.
Posted at 08:07 by Howard Bashman



"Ohio judges will be educated to better handle scientific cases": The Cleveland Plain Dealer contains this article today.
Posted at 08:06 by Howard Bashman



"Court Rules Against FERC; The regulatory panel is ordered to consider $2.8 billion more in refunds for California": This article appears today in The Los Angeles Times. Bob Egelko of The San Francisco Chronicle reports that "Court revives refund claim; Regulators hit for inaction during state energy crisis." The San Diego Union-Tribune reports that "U.S. court opens door to energy refunds; FERC's rejection of billions for state to be reconsidered." And The San Jose Mercury News reports that "Court backs energy refund."
Posted at 08:00 by Howard Bashman



In news from New York: The New York Law Journal reports that "Minimal Stock Holdings Will Not Keep Judges Off Companies' Cases." And The New York Daily News reports that "Judges get new leeway on stocks."
Posted at 07:58 by Howard Bashman



"High court upholds city's old poster ban; But Seattle will stick with law allowing some bills": This article appears today in The Seattle Post-Intelligencer. And The Seattle Times reports that "Poster ruling won't be felt."
Posted at 07:54 by Howard Bashman



With only one day and seven hours left to go, price at eBay auction for Justice Sandra Day O'Connor bobblehead doll has increased to $182.50: You can view the eBay listing and offer your own bid at this link.
Posted at 07:06 by Howard Bashman



"Insurers Urge U.S. Supreme Court to Change Utah Ruling in Landmark Punitive Damages Case": Insurance Journal yesterday posted online this report.
Posted at 07:05 by Howard Bashman



"Seekins panel to study judicial nominations": The Fairbanks Daily News-Miner contained this article yesterday.
Posted at 07:04 by Howard Bashman



"'Sexual relations' a term of debate in case of ex-public defender": This article appears today in The Seattle Times.
Posted at 07:02 by Howard Bashman



"Scales weighing Pickering are tilted by politics": Thomas L. Carpenter Jr. has this op-ed today in The Sun Herald of Biloxi, Mississippi.
Posted at 07:00 by Howard Bashman



"Perry has chance to bring diversity to Supreme Court": The Austin American-Statesman contains this editorial today.
Posted at 06:59 by Howard Bashman



"Student singled out for not saying pledge, parent says; Principal says message wasn't intended to make anyone uncomfortable": This article appears today in The Milwaukee Journal Sentinel.
Posted at 06:55 by Howard Bashman



"Opposing sides offer briefs in Tangipahoa prayer case": The Advocate of Baton Rouge, Louisiana today contains an article that begins, "Both sides in a federal lawsuit opposing prayers during Tangipahoa Parish School Board meetings see the issue as a debate on First Amendment rights."
Posted at 06:51 by Howard Bashman



"Oyster farmers' $661 million in awards tossed on appeal; Judge made errors; jury will hear case": This article appears today in The Times-Picayune.
Posted at 06:32 by Howard Bashman



Thursday, September 09, 2004
"Finch praised at U.S. Senate committee hearing on renomination": The Virgin Islands Daily News today contains an article that begins, "Chief District Judge Raymond Finch was praised by members of the U.S. Senate Judiciary Committee at his renomination hearing Wednesday morning in Washington, D.C."
Posted at 23:54 by Howard Bashman



The Los Angeles Times is reporting: Today's newspaper contains articles headlined:
Posted at 23:50 by Howard Bashman



In today's issue of The Boston Globe: The newspaper contains articles headlined "Tribunal orders that Guantanamo detainee be freed" and "Ogletree admits lifted passages; Harvard professor cites editing mistake."
Posted at 23:45 by Howard Bashman



USA Today is reporting: Today's newspaper contains articles headlined "Federal abortion ban gets 3rd rejection; Late-term procedure must be allowed, judge rules" and "Tribunal orders release of Guantanamo detainee."
Posted at 23:44 by Howard Bashman



In today's edition of The Washington Post: The newspaper contains articles headlined:
Posted at 23:40 by Howard Bashman



The New York Times is reporting: Today's newspaper contains articles headlined:
Posted at 23:20 by Howard Bashman



"Court decision opens door for Calif. power refunds": Reuters provides this report.
Posted at 23:05 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined:
Posted at 22:44 by Howard Bashman



"Ninth Circuit Grants En Banc Review of Ruling on Terror Law": This article appears today in The Metropolitan News-Enterprise. And Bob Egelko of The San Francisco Chronicle reports today that "Court to review decision on aid to terror groups." I first reported here on yesterday's grant of rehearing en banc in this matter.
Posted at 20:59 by Howard Bashman



"Study: Bush Judges Most Conservative on Rights." Reuters reports here that "A study of thousands of federal court cases has found that judges appointed by President Bush are the most conservative on record in the areas of civil rights and civil liberties."
Posted at 18:06 by Howard Bashman



"State Supreme Court upholds Seattle's poster ban": The Seattle Times offers a news update that begins, "The Washington Supreme Court ruled today that the city of Seattle's poster ban on utility poles is legal." You can access online the majority opinion that the Washington State Supreme Court issued today, along with a concurring opinion and a dissenting opinion.
Posted at 17:28 by Howard Bashman



"Ruling requires re-sentencing of embezzler; The state Court of Appeals says judges can't add on sentences because of a U.S. Supreme Court edict": This article appears today in The Oregonian.
Posted at 17:26 by Howard Bashman



"Neener, Neener, Neener: Texas Supreme Court sides with satire and the Dallas Observer." The Dallas Observer today offers this article celebrating its recent victory in the Supreme Court of Texas. My earlier coverage of that ruling can be accessed here.
Posted at 17:13 by Howard Bashman



Senator John Kerry denounces U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas: The Associated Press reports here that "In a speech that blended political rhetoric with Biblical references, the Democratic presidential candidate also branded Supreme Court Justices Antonin Scalia and Clarence Thomas as out of the mainstream and said Bush will appoint more like them if he wins re-election."
Posted at 17:11 by Howard Bashman



U.S. Court of Appeals for the First Circuit holds that new U.S. Department of Justice policy limiting federal inmates' eligibility for placement in a community corrections center to the last ten percent of their sentence is contrary to law: This ruling is big news. As today's opinion explains:
The policy change that is the subject of this lawsuit was required by a December 13, 2002 Memorandum Opinion from the Department of Justice Office of Legal Counsel, which declared unlawful the BOP's prior practice of placing federal prisoners in community confinement to serve all or part of their sentences. [The inmate-appellant] argues that the BOP's policy is based on an erroneous interpretation of two statutory provisions of the Sentencing Reform Act of 1984, 18 U.S.C. secs. 3621(b) and 3624(c). According to this interpretation, these two provisions limit the BOP's discretion to place prisoners in CCCs to the lesser of the last six months or ten percent of their terms of imprisonment. Although the change in policy has generated a flood of lawsuits in the federal district courts, no court of appeals has yet spoken on the validity of the BOP's new policy. We do so here and conclude that the new policy is contrary to the plain meaning of 18 U.S.C. sec. 3621(b).
You can access the complete opinion at this link.
Posted at 16:45 by Howard Bashman



Face the consequences: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit, in an opinion by Circuit Judge Richard L. Nygaard, has explained:
The decision whether to appeal from an order of the District Court is not a matter to be taken lightly by either a losing party or her counsel. An appeal is not just the procedural next step in every lawsuit. Neither is it an opportunity for another "bite of the apple," nor a forum for a losing party to "cry foul" without legal or factual foundation. An appeal is a serious matter because it is a claim of error by the District Court and an attack on the validity of its order. Consequently, if the appeal is wholly lacking in merit, there are consequences. Appellant herein now must face them.
You can access at this link today's ruling, which imposes damages on appellant's counsel under Federal Rule of Appellate Procedure 38.
Posted at 16:15 by Howard Bashman



Today's rulings of note from the U.S. Court of Appeals for the Ninth Circuit: California energy consumers could someday receive refunds totaling into the billions of dollars as a result of the Ninth Circuit's ruling today in California v. FERC.

And an opinion issued by Circuit Judge Marsha S. Berzon, on behalf of a unanimous three-judge panel, begins: "How long is a year? We are not the first to confront this question."
Posted at 13:29 by Howard Bashman



Still to come -- eBay auctions the "Kennewick Man": The Honolulu Star-Bulletin reports today that "Charges filed in eBay skull case; Federal prosecutors say a California man put the item up for bid." The Honolulu Advertiser reports that "Sale of Hawaiian skull draws federal charge." And The Los Angeles Times reports that "Man Charged With Selling Skull on EBay; Tipped off by a Hawaiian group, a federal sting snares an Orange County resident." eBay auctions of U.S. Supreme Court Justice bobblehead dolls (see, e.g., here) offer an opportunity to own a famous old skull without the same heightened risk of federal prosecution. More information about the "Kennewick Man" is available at this link.
Posted at 12:45 by Howard Bashman



"Yellow Tomato Causes Legal Dilemma": Reuters provides this somewhat amusing report from Germany.
Posted at 11:44 by Howard Bashman



"Gay dads get daughters plus praise from judge; The state was trying to remove two girls, 6 and 7, from foster parents who had been awarded long-term custody": This article appears today in The St. Petersburg Times.
Posted at 11:02 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined:
Posted at 10:44 by Howard Bashman



"Rutland court wins noddin' noggin award": A reader who is one of my favorite U.S. Supreme Court correspondents has sent me an email titled "All bobblehead, all the time" to bring to my attention some recent news from Rutland, Vermont. On Tuesday, The Rutland Herald published an article that begins:
Rutland District Court has received a real head-shaker of a prize for its hard work.

The court has recently been awarded a bobblehead version of U.S. Supreme Court Chief Justice William Rehnquist. The nodding, black-robed doll recognizes Rutland for ranking among the top courts in Vermont in terms of reducing its criminal case backlog over the last six months.

The 8-inch-tall, distinguished looking ceramic figurine was presented to Rutland District Court officials by Brian Burgess, the state's chief trial court judge.

"He came down here and we had a little bobblehead ceremony," said Nancy Corsones, who has presided in Rutland District Court for the past three years. She starts a new judicial assignment today in Bennington Family Court.

However, she was able to stick around Rutland District Court long enough to accept, along with the rest of the court staff, the wobbling Rehnquist trophy.

The genesis of the award can be traced back to a statewide judicial conference held in Burlington in January to discuss the need to reduce the backlog of pending criminal cases.

Vermont Supreme Court Chief Justice Jeffrey Amestoy pledged at that conference to award his own Rehnquist bobblehead to the court that made the most progress in reducing its criminal case backlog over the first six months of the year.

"Chief Justice Amestoy may have retired, but his Rehnquist bobblehead remains in my custody," Burgess wrote in a memo to court officials across the state before presenting the trophy in Rutland.

The Rehnquist bobblehead stands in a prominent spot high on a shelf looking over the court staff in Rutland.

The makers of the figure paid close attention to detail.

The black robe features gold stripes on each sleeve, similar to the one worn by Rehnquist during the impeachment trial in 1999 of President Bill Clinton. Also, the tie is made to resemble the one he wore on that trial's opening day.

In addition, the statuette of the 79-year-old chief justice is holding a small replica of the bound volumes of Supreme Court opinions.

Rehnquist received the first of the limited edition dolls in May 2003, and reportedly had quite a laugh.

The dolls have been coveted by collectors ever since. One of them sold last week for $375 on the Internet auction site eBay.

Other Supreme Court justices have been bobbleheaded, including Sandra Day O'Connor and John Paul Stevens.

The Rehnquist doll makes for an appropriate award in Vermont, due to his ties to this state. He owns a summer home at Caspian Lake in Greensboro.
You can access the complete article at this link, and you can view a close-up of the bobblehead prize posing in front of a potted plant at this link. As one widely-read law blogger recently observed, "Who among us can afford not to subscribe to The Green Bag?"
Posted at 10:00 by Howard Bashman



Who's the "girlie man" now? The Sacramento Bee reports today that "This time, bobblehead of governor wears pumps."
Posted at 09:03 by Howard Bashman



In same-sex marriage-related news: From California, Josh Richman of The Oakland Tribune reports today that "Marriage law defense must come by Oct. 8; Judge orders Lockyer to explain why state ban on gay unions is constitutional." The Sacramento Bee reports that "Domestic partner privileges upheld; A judge rules two laws don't violate state's marriage measure." Bob Egelko of The San Francisco Chronicle has an article headlined "Ruling in favor of partners law."

And from Massachusetts, The Cape Cod Times reports that "Gay-marriage fights force P'town to ask for funds."
Posted at 08:59 by Howard Bashman



"Judge rules against abortion ban": The Lincoln Journal Star contains this article today, while The Omaha World-Herald reports that "Appeal likely on abortion ruling."
Posted at 08:57 by Howard Bashman



"Tribune in 'cross-ownership' battle": This article appears today in The Chicago Sun-Times.
Posted at 08:55 by Howard Bashman



"Candidate: High court saved Exxon." The Decatur (Ala.) Daily contains this article today.
Posted at 08:53 by Howard Bashman



"Numerous candidates vying for high court": The Seattle Times today contains this article and an editorial stating which of the numerous candidates that newspaper endorses.
Posted at 08:48 by Howard Bashman



"An Award of Punitive Damages Against A Religious Institution: Is It a Constitutional Violation?" FindLaw columnist Marci Hamilton has this essay today.
Posted at 08:46 by Howard Bashman



"Phoenix bans Internet porn at libraries; Council vote may lead to court battle for city": This article appears today in The Arizona Republic.
Posted at 08:22 by Howard Bashman



"ACLJ Urges Federal Appeals Court to Uphold Constitutionality of Ten Commandments Monument in La Crosse, Wisconsin": The American Center for Law and Justice issued this press release yesterday. You can download yesterday's oral argument before the U.S. Court of Appeals for the Seventh Circuit via this link, and the Brief for Appellant that the ACLJ's attorney filed in the case can be accessed here. The three-judge panel that heard oral argument consists of Circuit Judges Daniel A. Manion and Michael S. Kanne and Senior Circuit Judge William J. Bauer.
Posted at 07:53 by Howard Bashman



Price at eBay auction for Justice Sandra Day O'Connor bobblehead doll has increased to $177.50: The auction will wrap-up approximately two days and seven hours from now. You can view the eBay listing and offer your own bid at this link.
Posted at 07:07 by Howard Bashman



"Dem: Too late to OK Starrett to bench; But Republicans seek to move ahead with confirmation." This article appears today in The Clarion-Ledger of Jackson, Mississippi.
Posted at 07:05 by Howard Bashman



Seals and Cross: The Los Angeles Daily News reports today that "Seal design gets 1st look; Proposed emblem without cross revives controversy." And The Los Angeles Times reports today that "New Seal, Sans Cross, Offers Other Changes; County unveils altered design, which also replaces the goddess Pomona, after ACLU threatens to sue." The LATimes article is accompanied by two images. The first shows both the old and new seal designs, while the second points out changes present in the new design. The new design may still be objectionable to those who see it as promoting the Hindu religion.
Posted at 06:59 by Howard Bashman



"Sentencing guidelines revisited; A Supreme Court ruling is having a statewide impact": This article appears today in The Statesman Journal of Salem, Oregon. The article reports on this ruling that the Oregon Court of Appeals issued yesterday.

Elsewhere, The News & Observer of Raleigh, North Carolina reports today that "Judges' sentencing latitude restricted; Ruling means Durham drunken driver, other inmates eligible for new terms." And The Sun Herald of Biloxi, Mississippi reports that "Cases await court ruling."
Posted at 06:44 by Howard Bashman



Wednesday, September 08, 2004
The Honolulu Advertiser is reporting: Today's newspaper contains articles headlined "No native right to cockfight, judge rules" and "Suit challenges trespass law."
Posted at 23:55 by Howard Bashman



In today's edition of The Los Angeles Times: An article headlined "Trial to Begin Over 1997 Use of Pepper Spray; Sheriff's deputies are accused of excessive force during Humboldt County protest" begins, "Seven years after Humboldt County sheriff's deputies applied pepper spray-soaked cotton swabs to the eyes of passive anti-logging protesters, a trial begins today in federal court here alleging the technique was an excessive use of force that amounted to torture." And Law Professors Vikram David Amar and Akhil Reed Amar have an op-ed entitled "The Electoral College Votes Against Equality."
Posted at 23:52 by Howard Bashman



USA Today is reporting: Today's newspaper contains articles headlined "Guantanamo 'spy ring' case takes big hit; Only one document involved was secret" and "Errors in investigation erode espionage case; Doubts grow about alleged 'spy ring' at Guantanamo."
Posted at 23:45 by Howard Bashman



"Finch to go before U.S. Senate panel in renomination bid": The Virgin Islands Daily News today contains an article that begins, "Chief District Judge Raymond Finch will appear before the U.S. Senate Judiciary Committee this morning to speak about his experience and qualifications for a second term as the territory's top federal judge."
Posted at 23:33 by Howard Bashman



"New Seal, Sans Cross, Offers Other Changes; County unveils altered design, which also replaces the goddess Pomona, after ACLU threatens to sue": The Los Angeles Times has recently posted online a news update that begins, "The miniature gold cross that once adorned the Los Angeles County seal has been erased." You can view online both the current and the proposed new seal by clicking here.
Posted at 23:30 by Howard Bashman



"Abortion opponents say buffer zone law unfairly applied": The Associated Press provides this report on an oral argument that occurred today before the U.S. Court of Appeals for the First Circuit.
Posted at 23:28 by Howard Bashman



Available online from law.com: Among the items that have become available online tonight:
Posted at 23:22 by Howard Bashman



Fourth Circuit Judge J. Michael Luttig did not participate in that court's en banc ruling addressing whether Blakely v. Washington preclude usual application of the U.S. Sentencing Guidelines: You can note his absence from the line-up of participating judges found on page one of the en banc opinions issued today. The Fourth Circuit's earlier en banc order announcing the result explained today did not include a list of participating judges. Nevertheless, Judge Luttig's absence does not come as a complete surprise. This oral argument summary that I previously linked to explains that Judge Luttig was not present for the en banc oral argument of the case.

In other Blakely news, The Mississippi Press reports today that "Federal sentencing hearings delayed as judge awaits Supreme Court ruling."
Posted at 23:10 by Howard Bashman



"Lawyers clash over McGreevey's resignation": This article appears today in The Newark Star-Ledger.
Posted at 23:09 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "U.S. Senate committee holds hearing for final Michigan appeals court nominee" and "Judge OKs New Calif. Domestic Partner Law."
Posted at 23:02 by Howard Bashman



"Judge: Controversial Abortion Ban Unconstitutional." This evening's broadcast of NPR's "All Things Considered" included this segment (Real Player required).
Posted at 20:55 by Howard Bashman



"Stress killed case; Prosecutor: Bryant's alleged victim faced 'awful anticipation.'" This article appears today in The Rocky Mountain News.
Posted at 20:54 by Howard Bashman



U.S. Court of Appeals for the Tenth Circuit affirms dismissal of claims against City of Tulsa and State of Oklahoma arising from violent attacks that destroyed the African-American community of Greenwood, Oklahoma in 1921: You can access today's ruling, by a unanimous three-judge panel, at this link.
Posted at 20:50 by Howard Bashman



En banc U.S. Court of Appeals for the Fourth Circuit issues opinions in support of that court's previously-announced ruling that Blakely v. Washington does not preclude usual application of the U.S. Sentencing Guidelines: The opinions total 145 pages in length. Here's the court's description of who has joined which opinions:
Chief Judge Wilkins wrote the opinion, in which Judges Wilkinson, Niemeyer, Williams, Traxler, King, Shedd, and Duncan joined and in which Judge Widener joined as to all except Part VII.C. Judge Wilkinson wrote a concurring opinion. Judge Shedd wrote a concurring opinion. Judge Widener wrote a concurring and dissenting opinion. Judge Motz wrote a dissenting opinion, in which Judges Michael and Gregory joined. Judge Gregory wrote a dissenting opinion.
You can access the complete decision at this link. The blog "Sentencing Law and Policy" promises to provide analysis of these opinions later tonight.
Posted at 18:04 by Howard Bashman



"Immigration appeals swamp federal courts": Claire Cooper, legal affairs writer for The Sacramento Bee, had this article in that newspaper this past Sunday.
Posted at 17:19 by Howard Bashman



"Thurston judge rejects state ban on gay marriage": This article appears today in The Olympian of Olympia, Washington.
Posted at 17:17 by Howard Bashman



The wire services are reporting: Now available online from The Associated Press are articles headlined:Reuters, meanwhile, is reporting that "House Panel Backs Fines for Frivolous Lawsuit" and "Ex-Banker Quattrone Gets 18 Months Prison."
Posted at 17:08 by Howard Bashman



"Pentagon Says Guantanamo Prisoner Improperly Held": Reuters reports here that "The Pentagon has determined for the first time that one of the nearly 600 Guantanamo Bay prisoners was improperly held by the United States as an 'enemy combatant' and will be released to his home country, the Navy secretary said on Wednesday." And the American Forces Press Service has issued an article headlined "Tribunal Finds Guantanamo Detainee Not Combatant; Man to be Sent Home."
Posted at 14:36 by Howard Bashman



"Judge rules partial-birth abortion ban unconstitutional": The Omaha World-Herald provides this news update.
Posted at 14:20 by Howard Bashman



U.S. Court of Appeals for the Ninth Circuit grants rehearing en banc in terrorism-related case: You can access today's order granting rehearing en banc in Humanitarian Law Project v. USDOJ at this link. The grant of rehearing en banc vacates this ruling on the matter that a divided three-judge Ninth Circuit panel issued in December 2003.
Posted at 14:00 by Howard Bashman



"20 questions for the appellate judge" update: The September 2004 installment of "20 questions for the appellate judge," featuring Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin, will appear online here at midnight on the morning of Monday, September 13, 2004. Due to the Labor Day holiday, publication has been postponed from the first Monday to the second Monday of this month.

Very soon thereafter, it will be time for me to submit questions to the October 2004 interviewee, D.C. Circuit Judge Harry T. Edwards. Readers wishing to offer questions or topics that I should raise with Judge Edwards are invited to send them along via email, a process that can be initiated by clicking here.

It is worth noting that Judge Edwards is co-chair of the group that put into place the federal law clerk hiring plan. Readers who are pleased or displeased with how that process operates may wish to take advantage of this opportunity to have their comments heard and questions addressed.

Finally, the next interviewee vacancy is for December 2004. To volunteer to participate as an interviewee in the "20 questions" feature, as so many well-known federal and state appellate judges already have, all that an appellate judge needs to do is send me an email at the address noted on the top of the right-hand column of this page.
Posted at 11:35 by Howard Bashman



"Ashcroft Strikes Out, Third Federal Court Rules Federal Abortion Ban is Unconstitutional and Cannot Be Enforced; Decision Echoes Rulings in San Francisco and New York": Planned Parenthood Federation of America has issued this press release today.
Posted at 11:30 by Howard Bashman



"Justice Antonin Scalia Launches EPPC Lecture Series; Supreme Court Justice to speak on 'The Courts and Democracy'": The Ethics and Public Policy Center has announced that Justice Antonin Scalia will be the first of six speakers participating in its Fall 2004 Lecture Series on "American Culture and Democracy."

The notice describing Justice Scalia's presentation, which will occur on the evening of September 20th, begins: "What is the appropriate role of the federal judiciary in our republic? What would the Framers of the Constitution think of today's activist judges? Supreme Court Justice Antonin Scalia helps launch EPPC's Fall 2004 lecture series with remarks on 'The Courts and Democracy.'"
Posted at 11:21 by Howard Bashman



"Sins of Commissions: Why aren't we using the courts-martial system at Guantanamo?" Slate has just posted online this jurisprudence essay by Law Professor Neal Katyal.
Posted at 11:17 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined:
Posted at 11:12 by Howard Bashman



"Island Mentality": The New Republic today contains an editorial that begins, "It was always clear that the war on terrorism would require a certain amount of improvisation."
Posted at 11:03 by Howard Bashman



"Muhammad Cites Proof of Rule Violation; Lack of Speedy Trial Disputed by Fairfax": This article appears today in The Washington Post.
Posted at 10:10 by Howard Bashman



Watch this morning's Senate Judiciary Committee confirmation hearing for judicial nominees live online: You can access the broadcast, scheduled to begin momentarily, by clicking here (Real Player required). And the hearing's agenda is available here.
Posted at 10:00 by Howard Bashman



"Electoral College Mischief: How to make the 2000 Florida brouhaha look like a kerfuffle." This editorial appears today in The Wall Street Journal.
Posted at 09:51 by Howard Bashman



The New York Times is reporting: Today's newspaper contains articles headlined:
Posted at 09:48 by Howard Bashman



BREAKING NEWS -- "Neb. Judge: Abortion Ban Unconstitutional." The Associated Press reports here that "A federal judge on Wednesday ruled the Partial-Birth Abortion Ban Act unconstitutional because it does not include a health exception for the woman." The U.S. District Court for the District of Nebraska has posted online both the opinion (474-page PDF document) and the judgment issued today.

The federal government has now lost all three challenges filed in federal district courts to the constitutionality of the so-called "Partial-Birth Abortion Ban Act of 2003." The first court to declare the statute unlawful was the U.S. District Court for the Northern District of California, in a 117-page ruling issued on June 1, 2004. The U.S. District Court for the Southern District of New York reached the same result in a 94-page decision issued August 26, 2004.

The battle over this law will now be fought in the U.S. Courts of Appeals for the Second, Eighth, and Ninth Circuits, and thereafter perhaps before the Supreme Court of the United States.
Posted at 09:15 by Howard Bashman



Price at eBay auction for Justice Sandra Day O'Connor bobblehead doll has increased to $149.50: The auction will wrap-up approximately three days and seven hours from now. You can view the eBay listing and offer your own bid at this link.
Posted at 07:02 by Howard Bashman



In news from New Jersey: The Newark Star-Ledger today contains an article headlined "Verniero benchmark: Private practice; Youngest justice to retire from top court will be 'of counsel' at Sills Cummis."
Posted at 07:00 by Howard Bashman



"More legal disputes on horizon at Humansville; Differences remain despite a settlement of lawsuit over Ten Commandments": This article appears today in The News-Leader of Springfield, Missouri.
Posted at 06:59 by Howard Bashman



"Suspended Sentencing: The consequences of 'the single most irresponsible decision in the modern history of the Supreme Court.'" Benjamin Wittes will have this article in the October 2004 issue of The Atlantic Monthly. And from Indiana, The Post-Tribune reports today that "Courts ordered to continue sentencing."
Posted at 06:57 by Howard Bashman



In news from Rhode Island: The Providence Journal reports today that "Robinson lauded, sworn in as new Supreme Court justice; The East Greenwich Democrat, whose confirmation looked doubtful during the waning days of this year's General Assembly, is praised for his 'keen intellect' and 'legal scholarship' by Governor Carcieri."
Posted at 06:56 by Howard Bashman



"2nd judge rules against state's gay marriage ban": This article appears today in The Seattle Post-Intelligencer, while The Seattle Times reports that "Gays are a protected class, state judge rules."
Posted at 06:54 by Howard Bashman



"A Federal Appeals Court Approves the DNA Profiling of Criminals: Are Innocent People Next?" FindLaw columnist Sherry F. Colb has this essay today.
Posted at 06:50 by Howard Bashman



"O'Connor pays tribute to Reagan; Justice says his efforts helped women get ahead": The Ventura County Star contains this article today.
Posted at 06:44 by Howard Bashman



"Texas judicial nominee confirmed; Bush second only to Clinton in putting imprint on federal courts": This article appears today in The Houston Chronicle. And in other coverage, The Lufkin Daily News reports that "Senate confirms Schneider as U.S. district judge."
Posted at 06:30 by Howard Bashman



Tuesday, September 07, 2004
"Texan approved for U.S. bench; Democrats don't block Justice Schneider; Perry to fill 2 vacancies": The Dallas Morning News provides this news update. Who says federal judicial nominees can't be confirmed this late into a Presidential election year?
Posted at 23:50 by Howard Bashman



"The digital copyright crisis": John Palfrey has this op-ed today in The Boston Globe.
Posted at 23:45 by Howard Bashman



"Stateless defended by Babauta anew; Governor asks Ashcroft not to contest Ninth Circuit ruling": Wednesday's edition of The Saipan Tribune contains an article that begins, "Gov. Juan N. Babauta is asking U.S. Attorney General John Ashcroft to withdraw from contesting the appellate court victory of so-called stateless persons in the CNMI in their quest for U.S. citizenship and attached statutory benefits."
Posted at 23:44 by Howard Bashman



"Ban on same-sex marriages struck down -- again": The Seattle Post-Intelligencer provides this news update.
Posted at 23:30 by Howard Bashman



The U.S. Department of Justice has filed its reply brief in the U.S. Court of Appeals for the Eleventh Circuit defending the lawfulness of the recess appointment of Circuit Judge William H. Pryor, Jr. to that court: You can access the reply brief that the federal government filed today in the Eleventh Circuit at this link.
Posted at 20:44 by Howard Bashman



"Anti-Abortion Group Wants Its Ads to Run": The Associated Press reports here that "A Wisconsin anti-abortion group asked the Supreme Court on Tuesday to let it run ads this fall despite a campaign finance law's restrictions on election-time political commercials."
Posted at 19:25 by Howard Bashman



The agenda for tomorrow's Senate Judiciary Committee confirmation hearing for judicial nominees is now available online: The lone federal appellate court nominee on the agenda is Sixth Circuit nominee Susan Bieke Neilson. She is one of the "Michigan Four," which means that her nomination has been going nowhere fast for quite some time now.
Posted at 17:45 by Howard Bashman



"Accommodating Muslim Sharia Law in Ontario": Today's broadcast of NPR's "Day to Day" included this segment featuring an interview with Dahlia Lithwick (Real Player required).

Perhaps when Dahlia's fame as a correspondent covering the courts grows even greater, she will get to pelt the host of an NPR program with pies (Real Player again required; more details on this second clip available here).
Posted at 17:35 by Howard Bashman



The Associated Press is reporting: An article headlined "Sentence for Child Molester Vacated" reports on this decision that the Nebraska Court of Appeals issued today. And in other news, "Guantanamo Panel Members Under Attack."
Posted at 17:25 by Howard Bashman



U.S. Court of Appeals for the Third Circuit holds that ERISA preempts claim under Pennsylvania's insurance bad faith statute alleging that employee's group long-term disability benefits were wrongfully terminated: You can access today's ruling at this link.
Posted at 17:21 by Howard Bashman



U.S. Court of Appeals for the Second Circuit examines lawfulness of repetitive strip searches of young girls in Connecticut's juvenile detention centers: The appeal has produced both a majority opinion and an opinion concurring in part and dissenting in part.
Posted at 17:14 by Howard Bashman



"Washington Judge Rules on Gay Marriage": The Associated Press reports here that "Echoing the ruling of another local court, a Thurston County judge ruled Tuesday that Washington state's ban on same-sex marriage is unconstitutional." You can access today's ruling by Judge Richard D. Hicks (biography available here, fifth item) of the Superior Court of Washington State, Thurston County, at this link.
Posted at 15:28 by Howard Bashman



Lust triumphs in sex discrimination appeal: Circuit Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit issued this decision today on behalf of a unanimous three-judge panel. In today's ruling, Judge Posner (the author of "Sex and Reason") writes in a parenthetical: "Lust is blonde; Sealy points out irrelevantly that blondes are not a statutorily protected class, which will disappoint hair colorists." Judge Posner's opinion largely avoids the pitfalls that might plague the typical jurist when deciding a sex discrimination case involving a plaintiff whose last name is defined as "usually intense or unbridled sexual desire." Indeed, Judge Posner writes near the decision's midpoint that Lust "is at least brave enough to go by her husband's last name."
Posted at 15:00 by Howard Bashman



"In Defense of Vladeck": A discussion of the Ninth Circuit's unique procedure for deciding cases en banc continues over at the new blog "The '04 Wall" in this post and the comment that follows. The two earlier installments of the conversation can be viewed here and here.
Posted at 13:59 by Howard Bashman



Unanimous three-judge Ninth Circuit panel rejects argument that Commonwealth of the Northern Mariana Islands, by limiting a nonresident alien's ability to seek and engage in employment as a condition for entry, violates the alien's constitutional rights under the Fourteenth Amendment: You can access today's ruling at this link.
Posted at 13:50 by Howard Bashman



En banc-related news from the U.S. Court of Appeals for the Ninth Circuit: The Metropolitan News-Enterprise reports today that "Court to Review Ruling on Asylum for White South Africans." You can access last Friday's order granting rehearing en banc at this link, and the now-vacated ruling of a divided three-judge Ninth Circuit panel can be accessed here.

MetNews today also offers an article headlined "Ninth Circuit En Banc Panel Broadens Younger Abstention Rules" reporting on this unanimous ruling that an eleven-judge Ninth Circuit en banc panel issued last Friday.
Posted at 12:19 by Howard Bashman



"Limits on damages a high stakes contest; The battle over Measure 35, which would set caps in medical malpractice verdicts, is shaping up to be pitched and pricey": This article appears today in The Oregonian.
Posted at 12:17 by Howard Bashman



In news and commentary from West Virginia: The Charleston Daily Mail today reports that "New ads criticize McGraw; Second group emerges spreading message that justice is 'soft on crime.'" And Chris Stirewalt, that newspaper's political editor, today has an essay entitled "Justice gets caught in the crossfire; Bare-knuckle fighting for judgeships doesn't serve anyone very well."
Posted at 12:15 by Howard Bashman



"Farm program faces its latest high court test; A flurry of briefs urges justices to uphold mandated fees for marketing campaigns": This article appears today in The Sacramento Bee.
Posted at 12:10 by Howard Bashman



Web site outage affecting the U.S. Court of Appeals for the Seventh Circuit enters its second week: First I praise the new look of the Seventh Circuit's web site, and next thing you know the site stops working. One hopes these two events are entirely unconnected. If you know why the site is down or when it may be back up and running, please let me know via email. Update: As of 2:50 p.m. eastern time, the site is back online, making these questions moot.
Posted at 11:27 by Howard Bashman



"Turkish Premier Defends Plans to Outlaw Adultery": Reuters provides this report.
Posted at 11:16 by Howard Bashman



Unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit concludes that the federal supplemental jurisdiction statute has overruled the U.S. Supreme Court's holding in Zahn v. International Paper Co.: It's always a pleasure when a federal appellate court reaches the correct result on a divisive issue by means of an opinion that's a delight to read. Today's opinion was written by Senior Judge Richard D. Cudahy, visiting from the U.S. Court of Appeals for the Seventh Circuit. Here are a few of the interesting passages found in the opinion:
The issue raised in this case is whether each individual class member in a diversity class action must meet the $75,000 amount in controversy requirement, or whether the plaintiffs may aggregate their damages. To say that this question has been thoroughly examined is an understatement. See Allapattah Servs., Inc. v. Exxon Corp., 362 F.3d 739 (11th Cir. 2004) (Tjoflat, J., dissenting) (compiling cases and articles). In fact, one of my law clerks was asked to answer this very question on a civil procedure exam in 1999. Unfortunately, however, he does not recall the answer, so we must review the issue de novo.

****

Until now, this court has yet to speak on the question. Today, we join with the majority of circuits which have considered the question and hold that Zahn has been overruled. We note that the majority of courts have been reaching this same conclusion for almost ten years now and Congress has yet to alter or amend sec. 1367 to correct them. For almost ten years, courts have acknowledged that the text of sec. 1367 unambiguously overrules Zahn, while its legislative history shows a clear intent to preserve Zahn. Rules of statutory construction teach that generally a court cannot consider the legislative history of a statute in interpreting its meaning unless the statute is ambiguous.

****

Congress was not using 28 U.S.C. sec. 1367 as an opportunity to play "Hide The Ball," "Where's Waldo?" or "Find The Hidden Exclusion." To argue that the alternative interpretation is viable enough to make this statute ambiguous only begs the question of the meaning of the word "ambiguity." Moskal v. United States, 498 U.S. 103, 108 (1990) (discussing "the crucial question--almost invariably present--of how much ambiguousness constitutes ... ambiguity") (citations omitted). If we really wanted, it is likely that we could find just about any statute to be ambiguous. Language, as compared to mathematics, is inherently imprecise. This does not mean that we should abandon our traditional role of interpreting statutes based on the language which Congress chose to include in the text itself.

Nor are we persuaded by the now fashionable argument that because a number of brilliant minds have found this statute to be ambiguous, it is by definition so.
The U.S. Court of Appeals for the Third Circuit, which reached the opposite conclusion on the question presented, receives some particularly harsh criticism in today's ruling:
As noted supra, some courts have found a basis to consider and ultimately adopt the legislative history of sec. 1367, without the need of finding the statute ambiguous. See, e.g., Meritcare Inc., 166 F.3d at 222. The Third Circuit, for instance, has found that resorting to the legislative history was appropriate in answering the sec. 1367 question because this is one of those "rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters." Id. (quoting United States v. Sherman, 150 F.3d 306, 313 (3d Cir. 1998) (internal quotation marks removed, alterations in original); accord United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989). Perhaps the primary rule of statutory interpretation, however, is that a court will not look beyond the statutory text if the text is unambiguous. See BedRoc Ltd., LLC v. United States, 124 S.Ct. 1587, 1593 (2004). Of course, if the statutory text and legislative history are consistent, this primary rule is unnecessary because the result will be the same regardless of whether a court follows the rule or not. Therefore, the primary rule only matters where there is a contradiction between the statutory text and the legislative history. The "exception" discussed in Meritcare has the potential to turn the primary rule on its head because every time there is an actual conflict between the statutory language and the legislative history, the legislative history may prevail over the text of the statute.
The Third Circuit's ruling in Meritcare, which I believe reached the wrong result, can be accessed here. And today's Sixth Circuit ruling, in its entirety, can be accessed both here (PDF) and here (HTML).
Posted at 10:30 by Howard Bashman



Price at eBay auction for Justice Sandra Day O'Connor bobblehead doll has increased to $86.00: The auction will conclude in approximately four days and seven hours from now. You can view the eBay listing and cast your own bid at this link.
Posted at 07:00 by Howard Bashman



The Washington Post is reporting: Today's newspaper contains an article headlined "Quattrone's Fate Lies in Firm Hands." And Steve Andreasen has an op-ed entitled "Beyond The Roots Of Abu Ghraib."
Posted at 06:55 by Howard Bashman



In today's edition of The New York Times: An article reports that "Onetime Star Investment Banker Is Facing U.S. Sentencing." Barron H. Lerner has an essay entitled "In a Wife's Request at Her Husband's Deathbed, Ethics Are an Issue." And Richard Ben-Veniste and Lance Cole have an op-ed entitled "How to Watch the Watchers."
Posted at 06:51 by Howard Bashman



"2 circuit judges to hear high court case; Appointments replace recused justices for appeal of settlement": This article appears today in The Clarion-Ledger of Jackson, Mississippi.
Posted at 06:45 by Howard Bashman



"Hospitals, docs tout justices; Campaign targets Supreme Court": The publication Business First of Columbus has published an article that begins, "The state's top lobbying groups for doctors and hospitals will roll out everything from campaign buttons to Web sites in a bid to help elect three candidates to the Ohio Supreme Court this November."
Posted at 06:43 by Howard Bashman



"Pro-choice activists planning for the worst": This article appears today in The San Jose Mercury News.
Posted at 06:42 by Howard Bashman



In same-sex marriage-related news: The Hartford Courant reports today that "Suit Paints Same-Sex Marriage As Ordinary." The Billings Gazette reports that "Same-sex marriage raises emotional response." And The Washington Times reports that "Republicans unruffled by silence on 'marriage.'"
Posted at 06:40 by Howard Bashman



"Outspoken justice is ripe target for rivals; Some see bias in libertarian leanings of 'the great dissenter'": This article appears today in The Seattle Post-Intelligencer.
Posted at 06:30 by Howard Bashman



"When -- If Ever -- Can Facts Found By Judges Lengthen Criminal Sentences? A Key Question Now Facing the Supreme Court." FindLaw columnist Vikram David Amar has this essay today. And The Express-Times of Easton, Pennsylvania today reports that "Sentencing uncertainty frustrates prosecutors."
Posted at 06:15 by Howard Bashman



Monday, September 06, 2004
The Associated Press is reporting: Now available online are articles headlined "Air New Zealand Welcomes Court Ruling" and "Detroit Case Shows Terror Prosecution Woes."
Posted at 23:40 by Howard Bashman



"Amendment skirmishes continue": The Washington Times today contains an article that begins, "Legal battles regarding state marriage amendments are over in Louisiana -- and possibly in Michigan -- but three other states still are involved in the fight to put the issue to a statewide vote."
Posted at 23:35 by Howard Bashman



"Dangerous Errors": This editorial about the Detroit terror convictions appears today in The Washington Post.
Posted at 23:30 by Howard Bashman



"Even in an Age of Terror, Towers Use Glass Facades": This article appears today in The New York Times.
Posted at 23:20 by Howard Bashman



In news from China: People's Daily Online reports today that "Supreme People's Court to publish more information on judicial activities." The article begins, "To raise the openness and transparency of judicial work the Supreme People's Court will further improve its information release system, and publish on its bulletin more information on judicial activities on a monthly basis." The web site of The Supreme Court of the People's Republic of China can be accessed at this link.
Posted at 23:15 by Howard Bashman



The Sydney Morning Herald is reporting: Tuesday's edition of that newspaper will contain an article headlined "Inquiry into use of expert witnesses" that begins, "The State Government has ordered an inquiry into unethical expert witnesses giving evidence in court cases and into the practice of no-win, no-fee charging."

And in other news, an article headlined "Rapist brothers did have fair trial, appeal court rules" begins, "Two teenage gang rape victims will be spared the torment of facing their attackers a third time after an appeal by two of the men was dismissed in a test case yesterday." As of this moment, that ruling does not appear online at the web site of the Court of Criminal Appeal of New South Wales.
Posted at 22:32 by Howard Bashman



"Opening doors: Supreme Court justice reminisces at court dedication." The San Francisco Examiner today contains an article that begins, "Supreme Court Justice Sandra Day O'Connor, one of the world's most powerful woman, told a courtroom full of San Mateo County lawyers that she didn't start out that way." And late last month, while I was away on vacation, San Mateo County Times columnist Jerry Fuchs previewed Justice O'Connor's visit to Redwood City, California in an essay entitled "Sandra Day O'Connor to be honored in County."
Posted at 22:21 by Howard Bashman



"The Wilderness Campaign: Al Gore lives on a street in Nashville." The September 13, 2004 issue of The New Yorker contains this profile of Al Gore written by David Remnick. As you might expect, the U.S. Supreme Court is mentioned several times.
Posted at 07:32 by Howard Bashman



"Sexual abuse, women cases top court list; Justices will be asked to address gay marriage": This preview of the Supreme Court of New Jersey's docket appears today in The Newark Star-Ledger.
Posted at 07:27 by Howard Bashman



"China Threatens Internet Porn Merchants with Life": Reuters provides this report. I first noted this matter yesterday in a post you can access here.
Posted at 07:25 by Howard Bashman



"Judge seeks to oust a justice over felony murder law; Supreme Court race may turn on key -- and controversial -- decision": This article appears today in The Seattle Post-Intelligencer.
Posted at 07:22 by Howard Bashman



Price at eBay auction for Justice Sandra Day O'Connor bobblehead doll has increased to $61.00: The auction still has more than five days to go before concluding.
Posted at 07:10 by Howard Bashman



"Judgment still pending on Clarence Thomas": Law Professor Dennis J. Hutchinson, in yesterday's issue of The Chicago Tribune, had this review of Ken Foskett's new book, "Judging Thomas: The Life and Times of Clarence Thomas."
Posted at 07:00 by Howard Bashman



Sunday, September 05, 2004
In today's edition of The Pittsburgh Post-Gazette: Today's newspaper contains a series of articles in anticipation of the forthcoming tenth anniversary of the crash of USAir Flight 427:
Posted at 23:35 by Howard Bashman



"Problems Abound in Election System; Outmoded Machinery Is Still Widespread": This article appears today on the front page of The Washington Post.
Posted at 23:30 by Howard Bashman



In today's issue of The New York Times: A "Week in Review" article is headlined "Government by, for and Secret From the People." Additionally, a letter to the editor that appears under the heading "Judges, Out in the Open" responds to this recent op-ed by Dahlia Lithwick and is written by someone who identifies himself as a former law clerk to both Justices Sandra Day O'Connor and Stephen G. Breyer.
Posted at 23:15 by Howard Bashman



"Justice Wants Airline ID Case Kept Secret": The Associated Press reports here that "The U.S. Department of Justice has asked an appellate court to keep its arguments secret for a case in which privacy advocate John Gilmore is challenging federal requirements to show identification before boarding an airplane." I previously linked to the Brief for Appellant that Gilmore recently filed in the U.S. Court of Appeals for the Ninth Circuit in a post that you can access here.
Posted at 23:05 by Howard Bashman



In Monday's edition of The Sydney Morning Herald: The newspaper contains articles headlined:
Posted at 22:00 by Howard Bashman



"Porn In The U.S.A." and porn in China: The CBS News program "60 Minutes" this evening included a rebroadcast of that program's wildly popular "Porn In The U.S.A." segment. Coincidentally, in news from China, Xinhuanet today has an article headlined "Porn producers face severe punishment" that begins, "Those who are engaged in the profit-oriented production and dissemination of pornographic materials through the Internet, mobile communication terminals and 'phone-sex' services in China are subject to punishment as severe as life imprisonment, according to the latest legal interpretations."
Posted at 21:16 by Howard Bashman



"Ass of a law means the rights of rapists override those of their victims": Columnist Paul Sheehan has this essay in Monday's issue of The Sydney Morning Herald.
Posted at 21:08 by Howard Bashman



"Kobe Rebounds: The troubled rape case of the tarnished hoop star ends not in a verdict but with his apology to his accuser." This article will appear in the September 13, 2004 issue of Time magazine.
Posted at 18:18 by Howard Bashman



"Short rations starve appeals courts": Columnist Robert Landauer has this op-ed today in The Oregonian.
Posted at 15:36 by Howard Bashman



"Sunday Conversation: Chief justice looks back at time on the bench." This interview with former Chief Justice Thomas R. Phillips of the Supreme Court of Texas appears today in The Houston Chronicle. And yesterday, "BeldarBlog" offered this "Salute to Chief Justice Thomas R. Phillips."
Posted at 15:32 by Howard Bashman



"A fine legal mess in Motown: The feds admit a litany of errors in a landmark terrorism prosecution." This article will appear in the September 13, 2004 issue of U.S. News & World Report.
Posted at 15:27 by Howard Bashman



"Of Lust and the Law": Law Professor Jonathan Turley has this essay today in The Washington Post.
Posted at 09:50 by Howard Bashman



"Woman's parental rights bid to be heard; Case is one of three involving lesbian pairs' custody issues": The Desert Sun of Palm Springs, California contains this article today.
Posted at 09:49 by Howard Bashman



"Ginsburg speaks on Jews and justice; The law has proven to be a 'bulwark against the kind of oppression Jews have encountered and survived throughout history,' the Supreme Court justice says in a speech at Touro Synagogue": This article appeared in The Providence Journal recently while I was away on vacation.
Posted at 09:30 by Howard Bashman



A Justice Sandra Day O'Connor bobblehead doll is now being auctioned on eBay with no reserve: You can view the item at this link. The auction will end midday on September 11, 2004, and the high bid is currently just $26.00.
Posted at 09:20 by Howard Bashman



Saturday, September 04, 2004
"Court backs cross-ownership ban": An article published today in The Chicago Tribune reports that "A federal appeals court Friday turned down a Tribune Co. request to allow media companies to own a newspaper and a broadcast TV station in the nation's biggest media markets."
Posted at 23:50 by Howard Bashman



In today's issue of The Los Angeles Times: The newspaper contains articles headlined:
Posted at 23:44 by Howard Bashman



"Judge Won't Delay Tobacco Trial": Reuters provides this report.
Posted at 22:47 by Howard Bashman



The New York Times is reporting: Today's newspaper contains articles headlined "Investigators Seek Lie-Detector Tests in Terrorism Case" and "Saudi Arabia Is Sued by Firm That Lost 658 in Twin Towers."
Posted at 22:44 by Howard Bashman



"Group of Nev. lawmakers to take tax ruling to U.S. Supreme Court": The Associated Press reports here that "A group of Republican lawmakers who challenged a court ruling nullifying a two-thirds requirement for the Legislature to raise taxes has decided to take their appeal to the U.S. Supreme Court."
Posted at 22:37 by Howard Bashman



"Medical pot shop shut down; Agents raid dispensary, seize hundreds of plants at farm": This article appears today in The Sacramento Bee.
Posted at 22:35 by Howard Bashman



"Social science, attitudes collide in Kansas sodomy case": The Associated Press provides this report, along with an item headlined "Timeline in Limon sodomy case."
Posted at 22:33 by Howard Bashman



"Court rejects libel suit; Judges: Observer's satire naming county officials is protected speech." The Dallas Morning News contains this article today. And The Fort Worth Star-Telegram reports that "Ruling protects right to satire."
Posted at 22:25 by Howard Bashman



"Polygamist Green loses appeal of his bigamy convictions; Utah Supreme Court: Justices say common law marriage is a valid foundation for prosecutions." This article appears today in The Salt Lake Tribune. And The Deseret Morning News reports today that "Green's conviction is upheld by ruling."
Posted at 22:21 by Howard Bashman



"Blood clot wasn't airline's fault, S.F. court rules; Decision could hurt similar lawsuits by other passengers": Today in The San Francisco Chronicle, Bob Egelko has this article reporting on a decision that the U.S. Court of Appeals for the Ninth Circuit issued yesterday.
Posted at 21:17 by Howard Bashman



NPR's Nina Totenberg and "The Fine Art of Pie Throwing": Watch the video clip, in which the radio network's veteran legal affairs correspondent throws a shaving cream pie into the face of "Weekend Edition - Saturday" anchor Scott Simon, by clicking here. And you can listen to how the pie throwing segment aired on this morning's broadcast via this link (starting at 4 minutes and 10 seconds into the segment). Real Player is required to play these video and audio segments.
Posted at 17:05 by Howard Bashman



Coming soon to a newsstand near you: In the August 30, 2004 issue of Legal Times, Tony Mauro had an item in the "Inadmissible" column headlined "Vanity Project":
The latest buzz among Supreme Court insiders is that one or more of the law clerks who served during the momentous 2000 election case of Bush v. Gore are about to tell all -- or at least some -- about what went on behind the scenes at the Court. The details will be in the next edition of Vanity Fair, which hits newsstands in September. Contributing editor David Margolick is author of the piece, part of a package reviewing the Florida election debacle entitled "Path to Florida." When Margolick began this summer to look into what happened at the Court four years ago, he found that justices, lawyers, academics, and even journalists had all "moved on." But the law clerks were still angry, and Margolick says "several" talked to him at length. He won't reveal his findings, but says the story reports "more than we knew before about what happened at the Court during Bush v. Gore, and certainly more than I thought I could get."
Those with an online subscription to Legal Times can access the August 30, 2004 "Inadmissible" column at this link.
Posted at 13:45 by Howard Bashman



A gift for the holidays from Law Professor Brian Leiter:
[T]he last week of December, we'll have another treat (and I'll enjoy another break): Richard Posner--distinguished jurist, founding father of the economic analysis of law, most-cited living legal scholar, scourge of Dworkin and formalist jurisprudents (not to mention admirer of Nietzsche!)--has kindly agreed to blog here, to share some of his views about matters jurisprudential--from Holmes to pragmatism to (one of my favorite Marxian themes in the Posnerian corpus!) the irrelevance of normative ethics--and perhaps other topics as well.
You can access Professor Leiter's full post here.
Posted at 13:29 by Howard Bashman



Despite having the Nation's first openly gay governor, New Jersey opposes right to gay marriage in court filing: The Newark Star-Ledger today reports that "State says gays do not have constitutional right to marriage."
Posted at 10:04 by Howard Bashman



"Recent trends go against free speech: The free-speech record of the Rehnquist II Court." Ronald K.L. Collins today has this analysis online at the First Amendment Center.
Posted at 10:01 by Howard Bashman



"Committee may meet on Starrett next week; NAACP opposes selection of white judge to U.S. District Court seat in Hattiesburg": The Clarion-Ledger of Jackson, Mississippi contains this article today. The Senate Judiciary Committee is scheduled to hold its next confirmation hearing for judicial nominees on Wednesday.
Posted at 09:58 by Howard Bashman



"2 from city are finalists for Missouri Supreme Court": This article appears today in The St. Louis Post-Dispatch.
Posted at 09:57 by Howard Bashman



In news from West Virginia: The Charleston Daily Mail yesterday contained an article headlined "Courts to decide parental rights; Lesbian partner of deceased woman fights for custody of 4-year-old." The article begins, "The state Supreme Court has agreed to decide whether state law will recognize the parental rights of two mothers when a child is raised by lesbians. The first-of-its-kind case, accepted for argument Thursday in a 3-2 vote, is expected to garner national attention."
Posted at 09:55 by Howard Bashman



"Another Side of Clarence Thomas": In tomorrow's issue of the Sunday Book Review published by The New York Times, Dahlia Lithwick will have this review of Ken Foskett's new book, "Judging Thomas: The Life and Times of Clarence Thomas." Additionally, you can access online an excerpt from that book's first chapter.
Posted at 09:46 by Howard Bashman



Friday, September 03, 2004
"Feds try again for wiretapping conviction": Declan McCullagh of c|net News.Com reports here today that "The U.S. Department of Justice has asked a full appeals court to review a controversial ruling saying an e-mail provider did not violate federal wiretapping laws by allegedly reading messages meant for customers." The article also notes that several civil liberties groups have filed an amicus brief in support of the federal government's request. In this blog post at "The Volokh Conspiracy," Law Professor Orin Kerr explains why that amicus brief is quite persuasive -- he is one of its authors. You can access the ruling of a divided three-judge panel of the U.S. Court of Appeals for the First Circuit in the case at this link.
Posted at 23:52 by Howard Bashman



The Los Angeles Times is reporting: Today's newspaper contains articles headlined:Today's newspaper also contains an editorial entitled "Ashcroft's Missteps Mount." Columnist J.A. Adande has an essay entitled "As Usual, Lawyers Get the Best-Case Scenario." And columnist Tim Rutten has an essay entitled "Secrecy proves costly."
Posted at 23:50 by Howard Bashman



"Montana court rips cop for invading bathroom": This article appears today in The Washington Times.
Posted at 23:44 by Howard Bashman



The Washington Post is reporting: Today's newspaper contains articles headlined:Also, sports columnist Michael Wilbon has an essay entitled "Bryant's Case Dragged on Too Long."
Posted at 23:40 by Howard Bashman



"Bryant case aftermath: a rape-law debate; The dismissal of the Kobe Bryant case has stirred talk about whether to change shield laws for accusers." This article appears today in The Christian Science Monitor.
Posted at 23:33 by Howard Bashman



Available online from law.com: Tony Mauro has an article headlined "Speak Wisely: Those who dare to take the podium at the Supreme Court best come prepared." And in news from California, "Gay Marriage Ban Costs Money, San Francisco Says."
Posted at 23:30 by Howard Bashman



In today's edition of The New York Times: The newspaper contains articles headlined:
Posted at 23:25 by Howard Bashman



The 50th "normblog" profile consists of an interview of Law Professor Eugene Volokh: You can access the interview, which was posted online today, at this link.
Posted at 23:20 by Howard Bashman



Extreme timekeeping leads to nothing but trouble: Today Ninth Circuit Judge M. Margaret McKeown, on behalf of a unanimous three-judge panel, issued an opinion that begins:
This intellectual property case pits the sport of extreme kayaking against the iconic American timepiece, Timex. In an effort to update its image, Timex Corporation ("Timex") arranged with Polar Bear Productions ("Polar Bear") to produce film footage featuring some of the stars of whitewater kayaking, paddling through exotic locales in North and South America and using equipment bearing the Timex logo. The promotion was so popular with Timex that it just kept on ticking and continued using the footage well beyond any permission to do so. The result is a lawsuit that has taken on a life far beyond a simple copyright and trademark case. Now, after two trials, two jury verdicts awarding in excess of $2 million to Polar Bear, and a long history between the parties, the case presents us with several novel issues of copyright law. The consequence of this appeal is a series of rulings resulting in yet another round in the trial court.
You can access the complete ruling at this link.
Posted at 23:16 by Howard Bashman



"Libel suit against Observer rejected; Piece on Denton County officials was protected satire, Texas court rules": The web site of The Dallas Morning News provides this news update from The Denton Record-Chronicle.
Posted at 23:13 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined:In addition, an article headlined "N.D. Supreme Court rejects appeal of circumcision lawsuit" reports on this ruling that the Supreme Court of North Dakota issued today.
Posted at 23:05 by Howard Bashman



Recent Yale Law School graduates blog about the law and stuff: That's what seems to be underway at a relatively new blog called "The '04 Wall." The comments to a post about a certain hot-but-anonymous blogger are quite amusing.

Longtime reader Steve Vladeck in a post entitled "Vote Counting, and We're Not Talking Florida..." writes:
I wanted to pick a subject that, for "classified" reasons, has been on my mind a lot lately -- vote counting and en bancs... Howard Bashman, he of the wildly-successful yet oh-so-subtly-biased How Appealing, loves to poke fun at the Ninth Circuit anytime the following scenario happens, and, admittedly, it happens a lot:

Panel majority includes three active judges, all of whom vote unanimously to affirm/reverse/whatever. Case goes en banc. En banc panel, per Ninth Circuit rules, need not necessarily include any/all of the original judges. Assume it includes none of them. Now, en banc court splits 6-5 to reverse the panel decision.

Well, as Mr. Bashman loves to point out, this means that a party "loses" by a vote of 6-8. Eight active circuit judges voted one way, six vote the other, yet the six votes win. There is an air of the ridiculous here, no?

I'm not convinced. First off, let me defend my home turf for a moment and point out that, though this is a particular problem out here in la-la-land, it could happen in some form on many other circuits that allow senior judges on original panels to also sit on en bancs -- it's just more common because our en banc panels are more easily skewed.

But as a principled matter, when a case goes en banc, the original opinion is withdrawn; kaput; it never happened. I don't know how it works in other circuits, but here, the second an order is entered taking a case en banc, the original decision basically ceases to exist. So, while three active judges may have voted one way on the issue, their votes _no longer count_. Lest someone object that this is a technicality, it's a rather significant point in other contexts too, i.e., the fight over whether unpublished opinions should be precedential (I'll save that for another high horse).

We have a screwy en banc procedure out here -- I don't dispute that. Six judges, in some cases, get to dictate the "will" of the entire court, all 25 active and 22 senior judges together. But I am just very skeptical of arguments that this kind of vote "counting" is one of the more serious flaws of such a procedure... then again, I'm biased. :-) It just seems to me that we live in a system where five votes trump 50 million, so why should people get outraged when six trump five (plus three that don't count).
Hmm, it's difficult for me to argue against such impressive logic.

But seriously, if three active judges on a Ninth Circuit panel consider an issue that's governed by law which the en banc Ninth Circuit is powerless to overrule, and then another eleven active judges on an en banc Ninth Circuit panel consider the exact same question, it's not fair to discuss how all fourteen judges voted on the question because the original panel's decision has been vacated? Does that also mean I shouldn't say how a district judge has voted on a question of law if his or her ruling has been vacated by a U.S. Court of Appeals?

The absurdity of Vladeck's position is revealed by the fact that even defenders of the Ninth Circuit's mini-en banc procedure admit that sometimes the procedure produces outcomes that differ meaningfully from the outcome that would have been reached had all active judges participated in rehearing the case en banc. See Judge Stephen Reinhardt's answer to question 14 of his "20 questions for the appellate judge" interview and Judge Michael Daly Hawkins's answer to question 7 of his "20 questions" interview. Of course, in every other circuit all non-recused active judges do participate in hearing and deciding cases en banc. Only in the Ninth Circuit, with twenty-eight authorized active judges, is it impossible as a practical matter for a case to truly be heard en banc, by the court's entire complement of active judges.
Posted at 18:28 by Howard Bashman



"Court Denies Tribune Media-Merger Request": The Associated Press provides this report concerning a different order that the U.S. Court of Appeals for the Third Circuit issued today in the case involving challenges to the FCC's media ownership regulations.
Posted at 18:23 by Howard Bashman



Elizabeth Drew reviews the 9/11 Commission's Final Report: The September 23, 2004 issue of The New York Review of Books will contain this review. And for those who may have missed it, last week's issue of the Sunday Book Review published by The New York Times included this quite interesting review written by Seventh Circuit Judge Richard A. Posner of the Commission's Final Report.
Posted at 17:51 by Howard Bashman



Supreme Court of Utah rejects free exercise challenge to state statute prohibiting bigamy: You can access today's ruling at this link.
Posted at 16:34 by Howard Bashman



"Public Offenders: Why criminals in Massachusetts are getting out of jail free." Slate has just posted online this jurisprudence essay by David Feige.
Posted at 15:53 by Howard Bashman



"US court backs FCC radio market definition": Reuters reports here that "A U.S. appeals court on Friday granted an FCC request for a narrower definition of radio markets to take effect, which could make it harder for the industry to consolidate further." The text of the order does not yet appear online at the web site of the U.S. Court of Appeals for the Third Circuit.

Update: You can access a copy of the Third Circuit's order at this link. Thanks much to the reader who so kindly sent this along.
Posted at 15:48 by Howard Bashman



Juicy Whip versus Orange Bang: The U.S. Court of Appeals for the Federal Circuit issued its ruling today in Juicy Whip, Inc. v. Orange Bang, Inc. Only by looking at the opinion can one be sure whether the dispute involves kinky sex, fruity beverages, or some combination thereof.

As always when dealing with the Federal Circuit, "The reader's familiarity with the fundamentals of molecular biology, genetics, and recombinant DNA technology *** is presumed."
Posted at 15:24 by Howard Bashman



"Underneath Their Robes" features two new posts: You can access them here ("Robing Room Report: Federal Judicial Trendspotting") and here ("UTR News and Views: September 1, 2004"). Also, after much clamoring from readers, a link to that blog is now featured in my list of "Especially Appealing Blogs" over in the right-hand column of this page.
Posted at 15:14 by Howard Bashman



U.S. Court of Appeals for the Third Circuit examines contours of "probate exception" to a federal district court's diversity of citizenship subject matter jurisdiction: Circuit Judge Michael Chertoff issued this decision today on behalf of a unanimous three-judge panel. In its ruling, the Third Circuit reinstates some claims that the trial court had dismissed in reliance on the "probate exception."
Posted at 14:47 by Howard Bashman



"Sniper Raises Speedy Trial Rule; Muhammad Lawyers Say Rights Violated": The Washington Post today contains an article that begins, "When suspected thief Robert V. Funk escaped from the Fauquier County jail in 1988, he set off a chain of events -- and a key legal ruling -- that could lead to the dismissal of all remaining charges in Virginia against sniper John Allen Muhammad."
Posted at 14:27 by Howard Bashman



Supreme Court of Texas instructs lower courts to get a better sense of humor: Today the Supreme Court of Texas issued its eagerly awaited ruling in New Times, Inc. v. Isaacks, which has been described as "a case of first impression that may determine whether satire is a protected form of speech." You can access today's ruling at this link.

In earlier press coverage of the lower courts' rulings, The Christian Science Monitor last December published an article headlined "Texas court to rule: Can fiction be libel?" law.com last December reported on the Texas Supreme Court oral argument in an article headlined "Mock News Story Produces Accusation of Libel; A satirical item aimed at criticizing officials prompts free-speech debate." And the "Texas Law Blog" offered this first-hand report on the oral argument. Some additional information about the case can be accessed via my oral argument preview post from last December.

In earlier commentary about the case, Jesse Walker of Reason had an essay entitled "Where the Wild Suits Are; Satire as 'libel.'" FindLaw's Julie Hilden had an essay entitled "The Texas Supreme Court's Libel-By-Fiction Case; A Key First Amendment Controversy." And Douglas Lee had an essay entitled "Suing over satire? Let's be reasonable" online at the First Amendment Center.

A copy of the satire in question can be found on the last page of the court's opinion or here in HTML format.

In largely unrelated news, today is the final day that Thomas R. Phillips is serving as the Chief Justice of the Supreme Court of Texas. More details are available here.

Update: The Associated Press reports that "Court rules for Dallas Observer in libel suit."
Posted at 13:48 by Howard Bashman



U.S. Court of Appeals for the Eighth Circuit delivers good news to an elementary school teacher who wanted to participate in The Good News Club's after-school activities at the school where she teaches: You can access today's ruling at this link. In its opinion, the court writes: "While we are aware that school districts *** must tread carefully in a constitutional mine field of Establishment Clause, Free Speech Clause and Free Exercise Clause concerns, we reiterate that Establishment Clause cases stress the government's neutrality towards religion."
Posted at 11:55 by Howard Bashman



"Jailed Assassin 'Weds' Using Loophole": Reuters reports here from Jerusalem that "Defying a life prison term in isolation, Israeli Prime Minister Yitzhak Rabin's assassin has secretly married by proxy, his bride said Friday."
Posted at 11:16 by Howard Bashman



"The Blogger in the Black Robe; 7th Circuit’s Posner Not Seeking a Permanent Pundit Gig After Logging in for a Week": This article appears online today from The ABA Journal eReport. The following passage appears toward the end of the article:
Among the "blawgs"--law-oriented blogs--that are regular reads for Posner are Instapundit.com, The Volokh Conspiracy, How Appealing, Balkinization and www.AndrewSullivan.com.

And Posner admits to occasionally reading Underneath Their Robes, a gossip site authored by an anonymous associate. The site focuses on the federal judiciary.

"I have a theory that the author is not a she, but a he," Posner says. "The thing is exaggeratedly feminine and constantly drawing attention to her gender."
And I question why the author of the eReport article says that "Underneath Their Robes" is written by an associate. That blog's rather mysterious author may not even work for a private law firm.

Update: Thinking at once about "Underneath Their Robes," gender-bending, and Judge Posner, I am reminded of a quite amusing post from February 2004 titled "The perils of an advocate's trying to replicate an allegedly hostile work environment from the lectern at the start of an appellate oral argument."
Posted at 10:42 by Howard Bashman



Programming note: I typically post online a new installment of this blog's monthly feature "20 questions for the appellate judge" on the first Monday of each month. The first Monday of this month, however, is a federal and state holiday. As a result, the September 2004 installment of the "20 questions for the appellate judge" featuring Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin will appear online here at midnight on Monday, September 13, 2004, the second Monday of the month.
Posted at 10:35 by Howard Bashman



President Bush's acceptance speech is well received by his target audience: Washington Post editorial cartoonist Tom Toles has this cartoon in today's newspaper.
Posted at 10:31 by Howard Bashman



"Heed Franklin's words in dispute over Bible's place; We forget God's role in human affairs at our peril": Attorney Joe H. Reynolds has this op-ed today in The Houston Chronicle.
Posted at 08:51 by Howard Bashman



"Supreme injustice: There is an unspoken quota for Ontarians, Quebecers and women on the Supreme Court; Why not minorities?" Attorney Munyonzwe Hamalengwa has this op-ed today in The Toronto Star.
Posted at 08:49 by Howard Bashman



"Jury confusion results in reversal": The Casper Star Tribune today contains an article that begins, "Because the jury was confused, the Wyoming Supreme Court on Thursday reversed the conviction of a Campbell County man for taking indecent liberties with a 14-year-old girl." Yesterday's ruling of the Supreme Court of Wyoming can be accessed at this link.
Posted at 08:45 by Howard Bashman



"Graveyard memento ban upheld": The South Florida Sun-Sentinel today contains this article reporting on a decision that the Supreme Court of Florida issued yesterday. The case involves Florida's Religious Freedom Restoration Act and came before Florida's highest court on certified questions from the U.S. Court of Appeals for the Eleventh Circuit. The Eleventh Circuit's decision from October 2001 certifying the questions can be accessed here.
Posted at 08:40 by Howard Bashman



"Former chief justice helps raise funds for commandment fight": This article appears today in The Gwinnett Daily Post.
Posted at 08:39 by Howard Bashman



"Alabama delegates concerned about Supreme Court picks": The Mobile Register today contains this article.
Posted at 08:38 by Howard Bashman



Georgia appellate court candidate whose first name is Howard wins right to have his correct first name included on the ballot: The Atlanta Journal-Constitution reports today that "New statewide election ordered for judgeship." The Gwinnett Daily Post reports that "Court of Appeals election on again." And The Rockdale Citizen reports that "Supreme Court orders new election for appeals court." You can access at this link yesterday's 4-3 ruling of the Supreme Court of Georgia ordering a new election.
Posted at 08:33 by Howard Bashman



"California's Grandparent Visitation Statute: Why the State's Supreme Court Upheld It." FindLaw columnist Joanna Grossman has this essay today.
Posted at 08:31 by Howard Bashman



"Abortion language makes ballot; Voters will read entire amendment": This article appears today in The Tallahassee Democrat.
Posted at 08:30 by Howard Bashman



In same-sex marriage news: From California, Bob Egelko of The San Francisco Chronicle reports that "S.F., gays argue for 'marriage equality'; Court briefs charge state ban based on 'archaic stereotypes.'" Howard Mintz of The San Jose Mercury News reports that "S.F. officials launch salvo; Gay marriage ban goes back to court." Josh Richman of The Oakland Tribune reports that "S.F. legal filing makes the case for gay marriage; City, advocacy group briefs offer reasons why ban on same-sex unions is unconstitutional." And The Contra Costa Times reports that "Couples, S.F. sue over right to marry."

From Washington State, The Seattle Post-Intelligencer reports that "State's marriage law back in court; Thurston Co. judge is being asked to strike down gay ban." And The Seattle Times reports that "Recognizing gay marriages may be left to Legislature."

Finally, from Louisiana, The Times-Picayune reports that "Court clears the way for gay marriage vote." And The Advocate of Baton Rouge reports that "Supreme Court approves same-sex ballot."
Posted at 08:22 by Howard Bashman



"Ohio tax credit struck down; Jeep deal ruled unconstitutional": This article appears today in The Detroit Free Press. The Detroit News reports that "Court tosses DaimlerChrysler tax credit; Ohio ruling may have big effect in Michigan which uses practice to woo new businesses." The Toledo Blade reports that "U.S. court overturns Jeep plant tax credit; Judges say program is unconstitutional." The Cleveland Plain Dealer reports that "Court calls off tax break for Ohio industry." And The Cincinnati Enquirer reports that "Ohio tax credit struck down; Court rules incentive unconstitutional."
Posted at 08:00 by Howard Bashman



Thursday, September 02, 2004
In today's edition of The Los Angeles Times: The following articles appear:The newspaper also contains an editorial entitled "Guantanamo Farce" and an essay by columnist Bill Plaschke entitled "Bryant Is Now Free to Decide His Fate."
Posted at 23:18 by Howard Bashman



Available online from USA Today: That newspaper today contains the following articles of interest:
Posted at 22:56 by Howard Bashman



law.com is reporting: The following articles became available online tonight:
Posted at 22:48 by Howard Bashman



"Gateway sidewalk open to protesters": The Cleveland Plain Dealer today contains this article, while The Associated Press reports that "6th Circuit tells judge to reconsider Chief Wahoo protest case." The Supreme Court of Ohio, meanwhile, is still considering the legality of grilled Wahoo, as I earlier reported here.
Posted at 21:31 by Howard Bashman



"MDs cleared to sue insurers for pay; More than a half-million physicians are told they can finally go forward in their lawsuit against the nation's major health insurers": This article appears today in The Miami Herald. And The Atlanta Journal-Constitution reports today that "Court greenlights lawsuit against HMOs."
Posted at 21:27 by Howard Bashman



"Monument to William O. Douglas Unveiled at Davis High": This article appears today in The Yakima Herald-Republic. No mention of Justice Douglas would be complete without also mentioning Seventh Circuit Judge Richard A. Posner's review, entitled "The Anti-Hero," of the book "Wild Bill: The Legend and Life of William O. Douglas."
Posted at 20:50 by Howard Bashman



"In Re: Supreme Court; What the 2004 election election means for the judiciary." Terry Eastland has this essay online this evening at The Weekly Standard.
Posted at 20:42 by Howard Bashman



"Voters will cast ballots on gay marriage ban": The Associated Press provides this report from Louisiana.
Posted at 20:40 by Howard Bashman



"Hall of Blame: Who's to blame for the wreckage of the Kobe Bryant case?" Dahlia Lithwick -- whose guest columnist gig at The New York Times ended this past Sunday -- has this essay today online at Slate.
Posted at 19:48 by Howard Bashman



U.S. Court of Appeals for the Eleventh Circuit holds that Blakely v. Washington does not preclude usual application of the U.S. Sentencing Guidelines: You can access at this link the ruling that a unanimous three-judge panel issued late today.
Posted at 17:18 by Howard Bashman



"Status of Cases Argued Before The United States Supreme Court": In response to just a tiny little bit of coaxing, the Appellate and Supreme Court Practice at Mayer, Brown, Rowe & Maw LLP has reinstituted (after a one-year absence) the constantly-updated "Status of Cases Argued" report.
Posted at 16:15 by Howard Bashman



Another error corrected: The good folks at The Heritage Foundation have corrected the error I originally noted here yesterday. In its original form, the essay in question stated:
Terrence Boyle, Timothy Tymkovich, Jeff Sutton and Deborah Cook. Other than the fact that the American Bar Association gave all of them its highest rating - "well-qualified" - what does the U.S. Senate know about these people? All have been nominated, but none has received so much as a hearing before the Senate Judiciary Committee.
Ironically, as a reader pointed out via email today, the essay as originally written was also incorrect in stating that the ABA gave all four of these nominees its highest rating of "Well Qualified." In truth, the ABA ratings for three of these nominees were not "Well Qualified," while Circuit Judge Jeffrey S. Sutton received a rating of "substantial majority Qualified/minority Well Qualified." You can view the ABA ratings at this link.
Posted at 15:40 by Howard Bashman



U.S. Court of Appeals for the Ninth Circuit reverses another criminal conviction for possession of child pornography: Today a unanimous three-judge panel has ruled, in a decision you can access here, that probable cause was lacking to search for images of child pornography on the computer of an individual who used a credit card to subscribe to a web site offering pornographic images of underage girls. Circuit Judge Ronald M. Gould issued a concurring opinion in which he explained that he joined in the majority opinion only because Ninth Circuit precedent required the result and, unconstrained by that incorrect Ninth Circuit precedent, he would vote to uphold the search.
Posted at 15:30 by Howard Bashman



Another reason why the U.S. Court of Appeals for the Ninth Circuit should abandon its policy prohibiting citation to unpublished opinions: To avoid intruding on the spare time of senior judges serving on other U.S. Courts of Appeals who are called on to form a specially-constituted Ninth Circuit panel to reject absurd legal challenges to the Ninth Circuit's current policy. See this decision issued today by a three-judge Ninth Circuit panel consisting of Senior Eleventh Circuit Judge Phyllis A. Kravitch, Senior Eighth Circuit Judge C. Arlen Beam, and Senior Third Circuit Judge Robert E. Cowen. Ironically, in at least two of those three other circuits, litigants are free to cite to unpublished opinions at will.

Update: Plus, judges borrowed from outside the Ninth Circuit's jurisdiction are more likely to call the California Court of Appeal the California Court of Appeals (an error that even I've committed once or twice here at "How Appealing" in the past), as has happened in the first paragraph of the panel's order.
Posted at 15:16 by Howard Bashman



The wire services are reporting: Now available online from The Associated Press are articles headlined:Reuters, meanwhile, reports that "HMOs to Pay More to End Doctor Suits After Ruling."
Posted at 15:01 by Howard Bashman



"Defending Detainees: One day Neal Katyal is on a brief with Richard Epstein, the next he's challenging the Guantanamo tribunals." This article appears in the September 2004 issue of The American Lawyer.
Posted at 14:49 by Howard Bashman



Perhaps it tastes like chicken: Justice William W. Bedsworth of the California Court of Appeal for the Fourth Appellate District, Division Three recently expressed dismay that he wasn't one of the appellate judges called on to determine whether a cow is an uninsured motor vehicle under an automobile insurance policy.

But earlier this week, he did get to write the majority opinion in a case where the question presented was whether a defendant arrested in possession of more than a pound of marijuana could advance a "compassionate use" defense under California's Proposition 215 law, which allows the smoking of marijuana for medicinal purposes. The trial court had ruled that the defendant possessed too much marijuana, but the defendant responded that he needed a larger amount because his method of use was to eat the drug.

In press coverage of the ruling, The Orange County Register reports today that "Court gives weight to weed defense; Justices say O.C. man could argue a pound isn't over the medical limit." And The Metropolitan News-Enterprise yesterday reported that "Court of Appeal Throws Out Marijuana Conviction, Rules Compassionate Use Defense Wrongly Barred."
Posted at 10:40 by Howard Bashman



"Court to set rules for parental disputes between gays": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "The California Supreme Court agreed Wednesday to set ground rules for parental disputes between same-sex couples, granting hearings in three cases in which former lesbian partners claim parental status for children they had helped to raise." In other coverage, Claire Cooper, legal affairs writer for The Sacramento Bee, reports that "Parental-rights cases center on gay ex-partners."
Posted at 10:34 by Howard Bashman



"Former Dean Sues Chapman Over Dismissal; University official hired in 1998 to improve the law school says she was let go because of mental health problems brought on by job stress": The Los Angeles Times today contains an article that begins, "An associate dean at Chapman University claims in a lawsuit that the stress of trying to improve the university's law school took such a toll on her mental health that she tried to kill herself."
Posted at 10:30 by Howard Bashman



Now you see it, now you don't: This morning, The Associated Press issued a report headlined "La. Court Turns Away Amendment Challenge" that begins, "The Louisiana Supreme Court refused to take up legal challenges aimed at keeping a proposed constitutional ban on gay marriages and civil unions off the Sept. 18 ballot." Within the hour, however, The AP posted an item headlined "AP Eliminates Gay-Marriage-La. Story" that begins, "The AP has eliminated the Gay Marriage-Louisiana story. The court clerk's office now says it erred and decision has not yet been made."
Posted at 10:28 by Howard Bashman



"An Open-and-Shut Copyright Case; A federal appeals court rules that a company's garage door opener doesn't violate a law meant to protect intellectual property": This article appears today in The Los Angeles Times. And Declan McCullagh of c|net News.Com reports that "Judges OK garage door openers in copyright case." My earlier coverage of the U.S. Court of Appeals for the Federal Circuit's ruling in The Chamberlain Group, Inc. v. Skylink Technologies, Inc. can be accessed here.
Posted at 09:56 by Howard Bashman



Sixth Circuit holds that investment tax credit granted to DaimlerChrysler Corp. to induce the company to expand its business operations in Toledo, Ohio violates Commerce Clause: You can access today's ruling by a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit at this link.
Posted at 09:40 by Howard Bashman



"No niche for cell phones in area courtrooms; Some judges want harsh penalties for intrusion": This article appears today in The Tennessean.
Posted at 07:37 by Howard Bashman



In today's edition of The Washington Post: The newspaper contains articles headlined:In addition, sports columnist Thomas Boswell has an essay entitled "A Compromise In Many Ugly Ways."
Posted at 07:24 by Howard Bashman



The New York Times is reporting: Today's newspaper contains articles headlined:Also in today's newspaper, Selena Roberts has a "Sports of The Times" column entitled "Mistakes and Miscues Prove Too Much for Bryant's Accuser."
Posted at 07:17 by Howard Bashman



"Cop invaded teen's bathroom privacy, high court rules": The Associated Press provides this report on a ruling that the Supreme Court of Montana issued on Tuesday.
Posted at 07:10 by Howard Bashman



"Supreme Court overturns decision in deputy photo suit": The Waterloo-Cedar Falls Courier offers this article reporting on a ruling that the Supreme Court of Iowa issued yesterday in a case in which a former female deputy sheriff alleges that a photograph of her was altered to make it appear that she was standing in front of a squad car with her breasts exposed.
Posted at 07:03 by Howard Bashman



"22 will be interviewed for Missouri high court": The St. Louis Post-Dispatch contains this article today.
Posted at 07:00 by Howard Bashman



"Gay-rights group takes fight to Supreme Court": This article appears today in The Times-Picayune of New Orleans.
Posted at 07:00 by Howard Bashman



"Ruling involving Utahn illustrates visitation woes; Justices decided grandparents' rights infringe on parents'": This article appears today in The Deseret Morning News.
Posted at 06:58 by Howard Bashman



"Monument vote not likely in '04; Ruling probably won't come in time to get initiative on November ballot": The Idaho Statesman today contains an article that begins, "If voters have a say at all on whether to return a Ten Commandments monument to Boise city property, it probably won't be in November."
Posted at 06:56 by Howard Bashman



"Gay man's partner seeks share of estate; The deceased left no will, and his son says he and his siblings should get the inheritance": This article appears today in The Houston Chronicle.
Posted at 06:54 by Howard Bashman



"After election, Pickering will face political meat-grinder": The Sun Herald of Biloxi, Mississippi today contains this essay by Bill Minor.
Posted at 06:35 by Howard Bashman



"The Crucial Criminal Cases that Will Start the New Supreme Court Term: Testing the Federal Sentencing Guidelines' Constitutionality." Edward Lazarus today has this essay online at FindLaw. And The ASU Web Devil reports today that "Court ruling stirs famous assault case; Sentence in Mill Avenue stabbing could be shortened."
Posted at 06:25 by Howard Bashman



Wednesday, September 01, 2004
The Los Angeles Times is reporting: Today's newspaper contains articles headlined:
Posted at 23:44 by Howard Bashman



"Nader to appeal Pa. ballot ruling; His lawyer said it violates free-speech rights and cited a 1974 U.S. Supreme Court decision": This article appears today in The Philadelphia Inquirer. And The Pittsburgh Post-Gazette reports that "Nader to fight Pa. ruling barring him from ballots."
Posted at 23:28 by Howard Bashman



"9th Circuit Pulls Oracle Into Lerach's Range; Citing 'suspicious' trades by Oracle CEO Larry Ellison, panel reinstates securities class action": law.com provides this report.
Posted at 22:57 by Howard Bashman



"The Ten Commandments: time for review?" Lyle Denniston tonight has this post at "SCOTUSblog." Relatedly, my monthly appellate column from September 2003, originally published in The Legal Intelligencer, was titled "Take two tablets: Courts struggle over where to draw the line between Church and State."
Posted at 21:51 by Howard Bashman



In news from New Jersey: The AP reports that "First Hispanic justice sworn in to state Supreme Court."
Posted at 21:35 by Howard Bashman



Not only did The Green Bag's original description of the Justice Sandra Day O'Connor bobblehead doll contain an error, but so does the bobblehead doll itself: The spine of Volume 530 of United States Reports, which she is holding, states in gold lettering on black background "OTC TERM 1999." By contrast, both the bobblehead dolls for Chief Justice William H. Rehnquist and John Paul Stevens contain, on the volumes of U.S. Reports that they are each holding, the correct abbreviation for October -- OCT. This error will be a bit more difficult to correct than was the earlier one.
Posted at 21:35 by Howard Bashman



"Bryant rape case dismissed; Accuser unwilling to go forward, DA says": The Denver Post provides this news update, along with a transcript from The AP of Kobe Bryant's statement of apology to the accuser. The Rocky Mountain news offers an update headlined "Kobe Bryant case dismissed," while The Los Angeles Times offers an update headlined "Case Against Bryant Dropped."
Posted at 21:24 by Howard Bashman



"Bryant charges may be dropped; But the prosecution wants to perhaps retry the Lakers star at a later date": The Rocky Mountain News provides this news update. The Los Angeles Times provides a news update headlined "Bryant Rape Charge May Be Dismissed." The Denver Post provides a news update headlined "Report: Prosecutors agree to drop Bryant case." And The Associated Press offers an account headlined "Prosecutors Reportedly to Drop Kobe Charge."
Posted at 18:28 by Howard Bashman



"State can end life support of wards; High court rules 8 years after death of retarded man": Last Friday, The Lexington Herald-Leader published this article reporting on a decision that the Supreme Court of Kentucky had issued the day before. In other coverage, The Louisville Courier-Journal reported that "State life-support law upheld; Relative allowed to withdraw care," while The Associated Press reported that "'Clear and convincing evidence' needed in right-to-die cases."
Posted at 17:41 by Howard Bashman



Filibustering of judges is bad; not having one's facts correct is worse: The Heritage Foundation yesterday posted online two essays -- one by Edwin J. Feulner and the other by Rebecca Hagelin -- criticizing the filibustering of some of President Bush's judicial nominees. The essay by Hagelin (click on her name to read it) seems to contain a rather obvious error, in that it criticizes the Senate Judiciary Committee for having failed to hold hearings for nominees who, in three of the four instances mentioned, not only have received hearings but have also been confirmed and are now serving as federal appellate judges with life tenure.
Posted at 17:33 by Howard Bashman



"William and Mary Law School's Supreme Court Preview Marks 17th Year": That law school issued this news release today.
Posted at 17:30 by Howard Bashman



U.S. Court of Appeals for the Eleventh Circuit affirms nationwide class certification of RICO claims asserted by allegedly underpaid doctors against health maintenance organizations: You can access the court's opinion in this closely-followed case at this link. The opinion's opening and closing paragraphs are as follows:
This is a case of almost all doctors versus almost all major health maintenance organizations (HMOs), coming before us for the third time in as many years; there have been twenty-one published orders and opinions in this case from various federal courts. The plaintiffs are a putative class of all doctors who submitted at least one claim to any of the defendant HMOs between 1990 and 2002. They allege that the defendants conspired with each other to program their computer systems to systematically underpay physicians for their services. We affirm the district court's certification of the plaintiffs' federal claims, though we strongly urge the district court to revisit the definition of these classes, and reverse the district court's certification of the plaintiffs' state claims. We do not reach the district court's certification of a California Subclass since the defendants did not specifically challenge the certification on appeal.

****

Given the number of parties involved in this case, it threatens to degenerate into a Hobbesian war of all against all. Nevertheless, we feel that the district court--a veritable Leviathan--will be able to prevent the parties from regressing to a state of nature. One can only hope that, on remand, the proceedings will be short, though preferably not nasty and brutish.
Circuit Judge Gerald Bard Tjoflat wrote the opinion, on behalf of a unanimous three-judge panel.
Posted at 17:01 by Howard Bashman



U.S. District Judge Thomas Penfield Jackson retires from the federal judiciary, will now speak with the press whenever he damn well pleases: Today's edition of The Washington Post contains this newsbrief (first item).
Posted at 16:24 by Howard Bashman



Reuters is reporting: An article reports that "Tobacco companies seek delay of racketeering trial." And an article headlined "Oracle shareholders can sue execs, company" reports on this decision that the U.S. Court of Appeals for the Ninth Circuit issued today.
Posted at 16:16 by Howard Bashman



The federal government files its U.S. Supreme Court opening brief on the merits in the cases presenting the question whether Blakely v. Washington invalidates the U.S. Sentencing Guidelines: Law Professor Douglas A. Berman has posted online a copy of the federal government's brief together with several amicus briefs and has linked to them in this post at his "Sentencing Law and Policy" blog.
Posted at 16:10 by Howard Bashman



Graduation prayer controversy in Delaware "has snowballed into a religious freedom battle of immeasurable proportions": So reports The Bethany Beach Wave today in an article headlined "District addresses new policy; Board discusses new graduation policy, maintains prayer at meetings." That newspaper today also contains a related editorial entitled "Board should refocus on students." In other coverage, The News Journal of Wilmington last week published articles headlined "School district tackles prayer policy; IR plan calls for an end to graduation invocations" and "Board prays despite controversy; Many voice support at Indian River schools meeting." And on Sunday, News Journal columnist Al Mascitti had an op-ed entitled "Doesn't the Bible say something about loving your neighbor?"
Posted at 15:14 by Howard Bashman



"Bryant Attorneys Want Charge Dismissed": The Associated Press provides this report.
Posted at 14:46 by Howard Bashman



The U.S. Court of Appeals for the Seventh Circuit vastly improves the look of its web site's home page: You can access the new-look home page at this link.
Posted at 14:05 by Howard Bashman



The U.S. Supreme Court has posted online its oral argument calendar for November 2004: You can access the calendar at this link, and Lyle Denniston of "SCOTUSblog" provides a brief description of each case being argued that month.
Posted at 12:46 by Howard Bashman



"Newdow widens pledge challenge": In today's edition of The Sacramento Bee, legal affairs writer Claire Cooper has an article that begins, "Sacramento atheist Michael Newdow said Tuesday that he expects to fight his next legal war against 'under God' in the Pledge of Allegiance on multiple fronts, with separate cases running simultaneously in several regions of the nation."
Posted at 12:29 by Howard Bashman



"State caps on liability argued at high court": The Salt Lake Tribune contains this article today.
Posted at 12:28 by Howard Bashman



"Philip Morris seeks removal of law firm": This article appears today in The Chicago Tribune.
Posted at 12:12 by Howard Bashman



"Protect integrity of Supreme Court": This editorial appears today in The Toronto Star.
Posted at 12:00 by Howard Bashman



The United Church of Christ wants to protest against the Cleveland Indians baseball team because the church considers the team's use of the nickname "Indians" and the cartoon-character mascot "Chief Wahoo" to be racist and offensive to Native Americans: Today in the U.S. Court of Appeals for the Sixth Circuit, the church won a partial victory in its effort to conduct such a protest near Jacobs Field. You can access today's ruling at this link.

Meanwhile, the New York Yankees may wish to protest last night's historic 22-0 trouncing at the hands of the Indians, as reported here, here, here, here, here, here, and here.
Posted at 10:57 by Howard Bashman



"Appeals Court Restores Rowland Legal Privilege": This article appears today in The Hartford Courant.
Posted at 10:37 by Howard Bashman



U.S. Court of Appeals for the Federal Circuit issues important Digital Millennium Copyright Act ruling involving garage door openers: You can access the decision, issued late in the day yesterday, both here and here. Ernest Miller has an incredibly long post titled "Landmark Federal Circuit Decision in Skylink Case Creates DMCA Balancing Test" about the ruling and its significance. Additional coverage is available from "Copyfight," "Patently Obvious," and Seth Finkelstein's "Infothought" blog. And the Electronic Frontier Foundation offers a wealth of additional information about the case collected here.
Posted at 10:25 by Howard Bashman



Who among us can afford not to subscribe to The Green Bag? With the possible exceptions of (1) the time that Justice Sandra Day O'Connor was nearly tragically taken from us as a result of being bonked on the head by a toppled wooden beam at the grand opening of the National Constitution Center and (2) the unexplained failure of U.S. Senator John Edwards (D-NC) to return a blue slip for James C. Dever, III, nominated to be a District Judge on the U.S. District Court for the Eastern District of North Carolina -- throughout the course of this blog's history the one topic on which I have reported the most concerns The Green Bag's issuance of bobblehead dolls of U.S. Supreme Court Justices. For confirmation, please be sure to visit a blog post titled "Funniest post of the night" at the blog "Stephen Laniel's Unspecified Bunker."

This morning, at an auction on eBay, a Chief Justice William H. Rehnquist bobblehead doll sold for $374.90, eclipsing the $320 price that another copy of the same bobblehead doll sold for on eBay in July 2003. As my wife observed last night when glancing at my collection of the three U.S. Supreme Court bobblehead dolls that The Green Bag has issued to date (see here and here for photos of the other two), "Those bobblehead dolls are probably worth more than a thousand dollars."

The Green Bag, on average, has been issuing one Supreme Court Justice bobblehead per year. A one year subscription currently costs $35.00 and can be obtained via this link. The bobblehead dolls are selling for hundreds of dollars on the secondary market. If you do the math, like me you'll sign up for a subscription without delay.

I've been a paying subscriber for some two years now, after my repeated attempts at obtaining a complimentary Green Bag subscription were met with stony silence from the publication's staff, consisting of many notorious tightwads. True, one member of the publication's staff did graciously promise to give me a Bobble Chief from his personal stash the next time I visit his office (located in a city hundreds of miles away from me), but that offer will become so much more meaningful once the doll enters my possession. The Bobble Chief that I currently possess, broken thumb and all, came from a reader (a law professor, no less) as a gift for which I remain most thankful.

Of course, subscribing to The Green Bag isn't entirely a bed of roses. The last two U.S. Supreme Court bobblehead dolls have arrived via FedEx with the Justices' heads detached, which can be quite a distressing discovery. Fortunately, before ascertaining whether my reactions provided me with a valid claim for emotional distress, I was able to accomplish the reheading of each doll.

And thus I return full circle to this post's title -- Who among us can afford not to subscribe to The Green Bag?
Posted at 09:40 by Howard Bashman



With just twenty minutes to go, auction price for Chief Justice Rehnquist bobblehead doll rises to $316.02: You can access the eBay listing here. In July 2003, the Rehnquist bobblehead sold on eBay for $320. And during the short time it took me to type this post, I see the price has increased to $330.67! Update: As of 7:45 a.m. eastern time, the bid price is $350.
Posted at 07:42 by Howard Bashman



"Sniper says he is denied case files, clothing; Muhammad's lawyers seek change of venue for his second trial": This article appears today in The Baltimore Sun. And The Richmond Times-Dispatch reports today that "Ruling on site of Muhammad's trial delayed."
Posted at 07:40 by Howard Bashman



"It's time to talk about abortion": Kathryn Jean Lopez has this essay in today's issue of The Hill.
Posted at 07:38 by Howard Bashman



In today's edition of The Washington Post: Today's newspaper contains articles headlined:Also, former Enron Chairman and CEO Ken Lay has an op-ed entitled "The Politics of My Trial."
Posted at 07:32 by Howard Bashman



The New York Times is reporting: Today's newspaper contains articles headlined:
Posted at 07:20 by Howard Bashman



"Feds admits errors, ask to toss terror verdicts; Justice Dept. cites prosecutorial misconduct in post-September 11 trial of Metro men": This article appears today in The Detroit News. And The Detroit Free Press reports that "U.S. to drop charges in terror trial; Prosecutors will admit to errors in case."
Posted at 07:15 by Howard Bashman



With less than an hour to go, auction price for Chief Justice Rehnquist bobblehead doll rises to $291: You can access the eBay listing here. In July 2003, a Bobble Chief sold on eBay for $320.
Posted at 07:02 by Howard Bashman







Related Blogs