How Appealing

Monday, February 28, 2005
"Debate Resumes on Court Picks; Myers Is One of 7 Blocked Nominees Resubmitted by Bush": This article will appear Tuesday in The Washington Post.

In Tuesday's issue of The New York Times, Neil A. Lewis will have an article headlined "A New G.O.P. Tack on a Judicial Nominee."

Online at Salon.com, Dan Noyes reports that "Big biz battles for Bush's bench: Last year the Senate rejected former mining and cattle lobbyist William Myers for the Court of Appeals; Now Bush is trying again -- and this time Myers' business pals are waging a multimillion-dollar campaign for him."

Finally, Tuesday's edition of The Hill will contain an article headlined "Specter Judiciary debut irks some conservatives."
Posted at 23:45 by Howard Bashman



"How Eminent Is A City's Domain?" The Hartford Courant last week contained this article reporting on the U.S. Supreme Court oral argument in Kelo v. City of New London, Connecticut. And in earlier coverage, Lynne Tuohy had articles headlined "High Court To Test Seizure Of Homes; Eminent Domain Is Focus Of New London Case" and "Holdouts Stick Together."

The Day of New London, Connecticut last week contained extensive coverage:Elsewhere, Warren Richey had an article headlined "Public use, property rights and the courts; A Connecticut battle between property rights and government power comes before the Supreme Court" in The Christian Science Monitor.

Linda Greenhouse of The New York Times reported that "Justices Appear Reluctant to Increase Land-Use Oversight."

In The Washington Post, Charles Lane had an article headlined "Defining Limits of Eminent Domain: High Court Weighs City's Claim to Land," while Dana Milbank had an article headlined "Numbers Down but an Even Keel."

In The Chicago Tribune, Jan Crawford Greenburg had an article headlined "Top court hears eminent plea: Leave us our homes." She also reported on the case for the PBS program "The NewsHour with Jim Lehrer."

In The Los Angeles Times, David G. Savage reported that "Cases Lift Hopes for Property Rights; Two disputes coming to the high court, dealing with rent control and eminent domain, could revive the fortunes of a conservative movement." And Martin Garbus had an op-ed entitled "Is Your Stuff Yours? The Answer Isn't So Simple; Seeking to limit government seizures, conservatives take the issue to court."

Online at Reason, Jacob Sullum has an essay entitled "Revolting Development: Can the Supreme Court stop the spread of blight?" And The Economist offered a preview of the case headlined "Eminent domain: Despotism by stealth."
Posted at 23:20 by Howard Bashman



"Justices to hear Ten Commandments cases below image of Moses": Stephen Henderson of Knight Ridder Newspapers provides this report.
Posted at 23:15 by Howard Bashman



"U.S. Must Charge Padilla With Crime or Release Him; Judge Rules That Indefinite Imprisonment of American 'Enemy Combatant' Is Illegal": This article will appear Tuesday in The Washington Post.
Posted at 23:14 by Howard Bashman



"Disabled Cruise Passengers Ask for Justices' Protection": Linda Greenhouse will have this article in Tuesday's edition of The New York Times.

And The Los Angeles Times offers a news update by David G. Savage headlined "Justices Weigh Rights of Disabled on Cruise Ships."
Posted at 23:10 by Howard Bashman



C. Boyden Gray's "Memorandum on Judicial Filibusters": The Committee for Justice today posted online this memorandum.
Posted at 23:00 by Howard Bashman



"Hail to the chief?" That's the subject of this week's "Debate Club" feature online at legalaffairs.org. The participants in this week's discussion are Law Professors Kermit Roosevelt and Richard W. Garnett.
Posted at 22:54 by Howard Bashman



Available online from law.com: Tony Mauro reports that "High Court Appears Split on Question of ADA and Cruise Ships."

In related news, "Supremes Agree to Hear Diversity Jurisdiction Case."

The March 2005 issue of The American Lawyer will contain an article headlined "The Fen-Phen Follies: Mistaken assumptions, greedy lawyers and suggestions of fraud have made fen-phen a disaster of a mass tort."

And in news from California, "Gorillas, Employees and Breasts, Oh My!"
Posted at 22:50 by Howard Bashman



Saving FACE: Today a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit reaffirmed that court's decision from 1997 holding that the Freedom of Access to Clinic Entrances Act is a valid exercise of Congress's authority under the Commerce Clause. By a 2-1 vote, the panel rejected the argument that the U.S. Supreme Court's intervening ruling in United States v. Morrison, 529 U.S. 598 (2000), required a different outcome. Circuit Judge Emilio M. Garza wrote today's majority opinion.
Posted at 21:54 by Howard Bashman



The answer is "yes," 28 U.S.C. sec. 1367 does overrule case law that required each individual plaintiff in a federal diversity suit to satisfy the amount in controversy requirement: "SCOTUSblog" previews tomorrow's initial oral argument at the U.S. Supreme Court. Of course, the enactment of recent federal class action legislation makes the issue somewhat less important than before. This very Court split 4-4 the last time this issue was presented, making Justice Sandra Day O'Connor, then a recused non-participant, the holder of tomorrow's dispositive vote. Of course, if the Court gets the answer right, the margin of victory won't matter.
Posted at 19:12 by Howard Bashman



"White House Must Charge or Free Suspect": The Associated Press provides this report.
Posted at 18:55 by Howard Bashman



"High Court Weighs Disability Rules on Foreign Cruise Ships": This evening's broadcast of NPR's "All Things Considered" included this report (RealPlayer required) from Nina Totenberg.
Posted at 18:00 by Howard Bashman



"Federal Judge Orders 'Enemy Combatant' Jose Padilla Released; Government Expected To Appeal Ruling": WYFF News 4 in South Carolina provides this report.
Posted at 17:50 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined:
Posted at 16:54 by Howard Bashman



BREAKING NEWS -- U.S. District Court in South Carolina orders federal government to release alleged enemy combatant Jose Padilla in forty-five days: You can access today's decision of the U.S. District Court for the District of South Carolina at this link.

The U.S. Supreme Court's decision from June 2004 in Rumsfeld v. Padilla can be accessed here.

Today's ruling represents another defeat in court for President Bush's war on terror. Keep in mind, however, that the U.S. Court of Appeals for the Fourth Circuit would hear any appeal from today's ruling.
Posted at 16:48 by Howard Bashman



"Grounded: Millionaire John Gilmore stays close to home while making a point about privacy; He's unable to travel because he refuses to present a government-approved ID." This article appeared yesterday in The Pittsburgh Post-Gazette. Gilmore's case, which has a web site devoted to it, is now pending on appeal before the U.S. Court of Appeals for the Ninth Circuit.
Posted at 16:15 by Howard Bashman



"Why Not Sandra Day O'Connor For Our Chief Justice?" The Day of New London, Connecticut today contains this essay by syndicated columnist Marianne Means.
Posted at 16:12 by Howard Bashman



Available online from C-SPAN: On Saturday, I collected in a post you can access here news coverage of last week's press briefing by Senate Judiciary Committee Chairman Arlen Specter (R-PA).

C-SPAN has made available online at this link (RealPlayer required) the entire press briefing. And Saturday's broadcast (RealPlayer required) of "America & the Courts" contains a portion of Senator Specter's press briefing followed by remarks in response from Senator Charles E. Schumer (D-NY). Thereafter, the broadcast shows former Solicitor General Theodore B. Olson receiving the Lifetime Service Award from the Federalist Society's student chapter at Georgetown University Law Center.
Posted at 15:15 by Howard Bashman



"The 'Advice' in Advice and Consent: Must the president consult with the Senate on Nominations?" Andrew C. McCarthy has this essay today at National Review Online.
Posted at 14:45 by Howard Bashman



Holding or dicta? A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today issued an opinion written by Circuit Judge Johnnie B. Rawlinson that begins, "This case requires us to tread into the thorny thicket of the separate judgment rule."

The decision is of particular interest to me because it addresses the 2002 amendments to the Federal Rules of Civil and Appellate Procedure intended to eliminate the theretofore endless opportunity to appeal in a civil case in which judgment had not been entered on a separate document. Those amendments were the central focus of my April 2002 appellate column.

As I explained in that column, the amendments themselves did not specify how they should be applied to cases fully decided before the effective date of the amendments in which judgment had not been entered on a separate document:
The first difficult question that federal courts will have to grapple with is the impact of new FRCP 58 and new FRCP 4(a)(7) on civil cases in which a final decision was entered without a judgment on a separate document more than 180 days (or 210 days if the federal government was a party) before December 1, 2002, when the new rules take effect.

The Supreme Court's orders amending the FRAP and FRCP usually provide that rule amendments shall apply to pending cases "insofar as just and practicable." This paraphrases 28 U.S.C. sec. 2074(a) of the Rules Enabling Act, which provides that new procedural rules may be applied to pending cases unless it "would not be feasible or would work injustice, in which event the former rule applies."

First, courts could conclude that the amendments to FRAP 4(a)(7) and FRCP 58 do not apply to cases in which a final decision without a judgment on a separate document was entered before December 1, 2002. Such a conclusion would preserve the endless opportunity to appeal that had previously existed in those cases, which makes this approach unlikely to be adopted.

Second, on December 1, 2002, when the amendments take effect, courts could start the 150-day clock running toward the entry of an appealable, final judgment in pending civil cases that have a final decision but no judgment on a separate document. This would give all parties in such cases at least 180 days from December 1, 2002 in which to file an appeal.

Third, the rule could be applied in a fully retroactive manner, so that as of December 1, 2002 appeals could no longer be filed in civil cases lacking a judgment on a separate document in which the final decision was reached more than 180 days (or 210 days if the federal government is a party) earlier. Parties in such cases who have reason to fear the consequences of this third option should file their notices of appeal or post-judgment motions before December 1, 2002, not after.
Today's Ninth Circuit decision ignores the Rules Enabling Act and the specific language of the Supreme Court's orders adopting these amendments. Instead, the decision relies on an inapt Ninth Circuit ruling from 1988 for the proposition that "An appellate court must apply the law in effect at the time it renders its decision." Then, based on that quote, the panel holds that it must apply the amended rules in a fully retroactive manner, so that the appeal would have been untimely had the final decision been reached more than 180 days before the notice of appeal was filed. Because the appeal was filed within that 180 period, however, the Ninth Circuit today ruled that the appeal was timely.

But what if the panel's method of reasoning is dicta? The appellant's appeal in this case would have been timely no matter which of the three possible ways of applying the 2002 amendments the Ninth Circuit panel had chosen. Accordingly, does today's choice of a particular method of applying those amendments (the fully retroactive approach) constitute dicta or a holding that will bind future panels unless overruled en banc? Perhaps time will tell if other Ninth Circuit panels are confronted with this issue in a case in which the choice among the three possible ways of applying the 2002 amendments actually makes a difference as to an appeal's timeliness.
Posted at 14:25 by Howard Bashman



U.S. Court of Appeals for the Eighth Circuit rejects Bivens beef against federal meat inspectors: Today's ruling arises in the context of an appeal from the denial of qualified immunity. In holding that it was proper for the court to first resolve whether Bivens afforded the plaintiff any claim against the defendants, the Eighth Circuit today appears to have issued a ruling in direct conflict with this decision that the U.S. Court of Appeals for the Ninth Circuit issued last year.
Posted at 12:00 by Howard Bashman



"Toying with your freedom": Today in The Pittsburgh Tribune-Review, columnist Dimitri Vassilaros has an essay that begins, "'The Heart of Dixie' has no love for sex toys."

Of course, last Tuesday the U.S. Supreme Court declined to review a ruling from the U.S. Court of Appeals for the Eleventh Circuit that upheld as constitutional an Alabama law prohibiting the sale of sex toys.

In news coverage of that development, The Associated Press reported that "Supreme Court declines review of sex toy ban." The Birmingham Post-Herald reported that "Alabama set to ban sex toys." And Wired News columnist Regina Lynn had an essay headlined "You Have an Rx for That Vibrator?"
Posted at 11:50 by Howard Bashman



The Associated Press is reporting from the U.S. Supreme Court: Hope Yen reports that "High Court to Clarify When to File Suits" and "Top Court to Weigh Reservation Gas Tax." And in other news, "High Court to Address Whistleblower Suit."
Posted at 10:50 by Howard Bashman



There's more than one way to reverse the conviction of a khat importer: A ruling that a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued today includes an opinion from each judge on the panel.
Posted at 10:35 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": This morning's broadcast contained segments entitled "High Court Considers Disability Access on Cruise Ships" (featuring Nina Totenberg) and "Senate Debates Bankruptcy Restrictions." RealPlayer is required to launch these audio segments.
Posted at 10:20 by Howard Bashman



Today's U.S. Supreme Court Order List: The list can be accessed at this link.

The Court today granted review in a total of four cases, including one that presents the question "Whether, and to what extent, a court of appeals may review the sufficiency of evidence supporting a civil jury verdict where the party requesting review made a motion for judgment as a matter of law under Rule 50(a) of the Federal Rules of Civil Procedure before submission of the case to the jury, but neither renewed that motion under Rule 50(b) after the jury's verdict, nor moved for a new trial under Rule 59?"

The Court also asked for the views of the Solicitor General of the United States on whether to grant review in a case involving a patent that claims a method for detecting a form of vitamin B deficiency. Apparently the question concerns whether the patent is invalid because one cannot patent "laws of nature, natural phenomena, and abstract ideas." So much for my plan to patent the laws of nature. Expect additional coverage at "Patently-O: Patent Law Blog" sometime soon (update: here it is).
Posted at 10:00 by Howard Bashman



"Lawblogging": Glenn Reynolds has this new post up at GlennReynolds.com.
Posted at 09:02 by Howard Bashman



While you were out: Thanks to all the many readers who forwarded links via email last week while I and my family were on vacation in a much warmer climate. This blog's switch-over to Movable Type remains in the works and will happen when I least expect it. I returned home to find among the accumulated emails two gracious if tentative invitations to participate in events scheduled to take place at enticing locations within the jurisdiction of the U.S. Court of Appeals for the Ninth Circuit. More details may follow as appropriate.
Posted at 08:55 by Howard Bashman



"Cellblock Silliness": The New York Post today contains an editorial that begins, "In effectively banning the temporary segregation of prison inmates by race, the U.S. Supreme Court has struck a blow for equal rights -- at the expense of common sense."
Posted at 08:50 by Howard Bashman



"A victory for privacy": Columnist Robyn E. Blumner had this essay yesterday in The St. Petersburg Times.
Posted at 08:48 by Howard Bashman



"Justice speaks at symposium; Kennedy: Free society produces 'marvelous writers and thinkers.'" Yesterday's edition of The Richmond Times-Dispatch contained an article that begins, "Defense of the First Amendment must not be misconstrued as endorsement of moral relativism, Associate U.S. Supreme Court Justice Anthony M. Kennedy said yesterday at St. Christopher's School."
Posted at 08:45 by Howard Bashman



Seals and Cross: The Los Angeles Times reports today that "Churches Help Campaign to Restore Cross; With little cash to back its drive for a ballot measure, a group favoring the old county seal makes appeals at places of worship."
Posted at 07:55 by Howard Bashman



"The Ten Commandments Reach the Supreme Court": Linda Greenhouse has this article today in The New York Times.

Allen Pusey of The Dallas Morning News reports today that "Commandments fight reaches high court; Plaque at Texas Capitol among 2 cases to be argued Wednesday." That newspaper today also contains an editorial entitled "Not a Threat: Commandments marker -- An easy call" and an op-ed by Terry Eastland entitled "Thou shalt leave the monument on Capitol grounds."

Patty Reinert reports today in The Houston Chronicle that "Austin religious battle reaches Supreme Court; Texas challenge breaks justices' 25-year silence on display of Commandments."

And yesterday, The Austin American-Statesman contained an article headlined "Austin case subject of national debate: Do Ten Commandments on Capitol lawn violate Constitution?"
Posted at 07:45 by Howard Bashman



"Blowing up the Senate: Will Bush's judicial nominees win with the 'nuclear option'?" Jeffrey Toobin will have this article in the March 7, 2005 issue of The New Yorker.
Posted at 07:42 by Howard Bashman



"Taking New London": This editorial appears today in The Washington Post. Later today, I expect to post more about last week's oral argument in this case.
Posted at 07:40 by Howard Bashman



"High court U. scholar's next stop? Michael McConnell: The Court of Appeals judge is often mentioned as a possible future nominee." The Salt Lake Tribune contains this article today.
Posted at 07:38 by Howard Bashman



"Pesky filibuster serves its purpose": This editorial appears today in The Indianapolis Star.
Posted at 07:37 by Howard Bashman



"Abortion Debate Still Tangled in Bankruptcy Bill; The proposed law, which would make it harder for people to have their debts erased, may again have a provision aimed at clinic protesters": The Los Angeles Times contains this article today. And Financial Times reports today that "US bankruptcy bill faces rough Senate ride."
Posted at 07:35 by Howard Bashman



"Candidates scouted for federal judgeship; Potential replacements for McKnight include top prosecutors, lawyers": This article appears today in The Charlotte Observer.
Posted at 07:30 by Howard Bashman



In the March 7, 2005 issue of Time magazine: An article is headlined "The Rough Justice of War: Is prosecution getting too aggressive? Two thorny new cases, both against U.S. citizens, spotlight the difficulty of melding American legal principles with the global pursuit of terrorists."

Related articles are headlined "Terror Goes on Trial: Since 9/11, Justice lawyers have sometimes used pre-emptive prosecution--busting suspected terrorists before they could strike; The charges don't always stand up" and "Did He Go Too Far? How a shooting in Iraq led to murder charges against a respected Marine."

The magazine also contains Andrew Sullivan's essay entitled "The Case for Compromise on Abortion: How the pro-choice side is wielding a new principle that's tough to argue with."
Posted at 07:22 by Howard Bashman



"Court to assess US law's global reach": Today in Financial Times, Patti Waldmeir has an article that begins, "The US Supreme Court will today test the power of US law to reach across borders, in a case that asks whether foreign-registered cruise ships must comply with the nation's stringent disability law."
Posted at 07:20 by Howard Bashman



Sunday, February 27, 2005
Available online from law.com: Marcia Coyle has an article headlined "Cruise Ships Resist Docking With ADA; High court to consider if ADA applies to foreign-flagged ships."

In other news, "N.Y. Attorneys Get Firsthand Look at Guantanamo Conditions; Allen & Overy sends latest group to Cuba for detainee habeas interviews."

And Mark Scarsi has an essay entitled "Has the Cyberlaw Clinic Struck Out?"
Posted at 20:55 by Howard Bashman



"There were times that Dad's pranks bordered on what your out-of-control activist judges might call felonies." So begins Ian Frazier's Shouts & Murmurs essay, published in the February 28, 2005 issue of The New Yorker, parodying a passage from The Reverend Jerry Falwell's autobiography. The issue also contains David Remnick's tribute to that magazine's last Grammarian.
Posted at 20:34 by Howard Bashman



"Fight over making ships fit for the disabled; Monday the Supreme Court considers whether 'foreign flag' cruise lines have to follow US legislation": Warren Richey will have this article in Monday's issue of The Christian Science Monitor.

In largely unrelated news, while on vacation I managed to resist the temptation to visit the rather small pink building that houses the Supreme Court of the Commonwealth of The Bahamas.
Posted at 19:45 by Howard Bashman



Former Senate Judiciary Committee Chairman Joseph R. Biden, Jr. (D-DE) says he would not vote in favor of Antonin Scalia for the post of Chief Justice: You can access the transcript of today's broadcast of the NBC News program "Meet the Press" at this link.
Posted at 17:35 by Howard Bashman



"GOP Leaders Refuted by Their Own Briefing Book on Nuclear Option": People For the American Way issued this press release on Tuesday to announce the publication of Ralph G. Neas's paper, "No Defense for the 'Nuclear Option': Response to Harvard Journal of Law and Public Policy Article." The article to which Neas is responding can be accessed here.
Posted at 17:30 by Howard Bashman



"Robertson: GOP Must Push Judges Through." This segment (RealPlayer required) appeared on this past Wednesday's broadcast of NPR's "Day to Day." My round-up from early this morning of judicial confirmation-related news published while I was away last week on vacation can be accessed here.
Posted at 17:20 by Howard Bashman



"Oregon's assisted-suicide law to get high court airing; Supreme Court agrees to review Bush administration's bid to block the nation's only doctor-assisted suicide law": This article appeared Wednesday in The Christian Science Monitor.

In local coverage, The Oregonian on Wednesday contained articles headlined "Justices enter suicide fight" and "Portland plaintiff wants to keep death options open; Don James, fighting prostate cancer, signed on to Oregon's suit to keep doctor-assisted suicide legal," along with an editorial entitled "Let Oregon go its own way: The state has become the 'laboratory' on assisted suicide and end-of-life care that the Supreme Court envisioned."

One week ago today, The Oregonian reported that "Assisted suicide under siege in courts and Capitol; Oregon's unique law could get swept up in a legal challenge to medical marijuana or attacked by a more hostile Congress." And on Thursday, columnist David Reinhard had an essay entitled "Is Uncle Sam beating up on poor Oregon?"

Wednesday's edition of The Salem (Ore.) Statesman Journal contained articles headlined "High court to review assisted-suicide law; Oregonians twice approved Death with Dignity Act" and "Patient with cancer hopes assisted-suicide law stays."

In The New York Times, Linda Greenhouse reported that "Justices Accept Oregon Case Weighing Assisted Suicide."

In The Washington Post, Charles Lane reported that "Justices to Hear Challenge to Oregon Assisted-Suicide Law."

In The Los Angeles Times, David G. Savage reported that "Justices to Hear Case on Oregon's Suicide Law; High court's ruling on the issue could affect whether states pursue 'right-to-die' measures."

In USA Today, Joan Biskupic reported that "High court to review USA's only assisted-suicide law."

In The San Francisco Chronicle, Bob Egelko reported that "Top court to review assisted suicide; Oregon lets doctors provide death drugs."

And Stephen Henderson of Knight Ridder Newspapers reported that "Supreme Court decides to review Oregon's assisted-suicide law."

In commentary, The Denver Post today contains an editorial entitled "Suicide law has legal foundation."

The St. Petersburg Times on Thursday contained an editorial entitled "Oregon law should stand."

At National Review Online, Wesley J. Smith had an essay entitled "Prescription for Chaos: Understanding the lethal Oregon case that's hitting the Supreme Court."

Bloomberg News columnist Ann Woolner had an essay entitled "Death With Dignity Faces a Final Day in Court."

And CBS News legal analyst Andrew Cohen had an essay entitled "Life And Death."
Posted at 17:00 by Howard Bashman



In today's edition of The New York Times: The newspaper contains an article headlined "Bush's Next Target: Malpractice Lawyers."

A front page article reports that "Private Health Care in Jails Can Be a Death Sentence."

An article in the Week in Review section is headlined "Putting God Back Into American History" and features a graphic headlined "The Faiths of Our Fathers."

In news relating to the war on terror, "Within C.I.A., Worry of Prosecution for Conduct" and "Case Adds to Outrage for Muslims in Northern Virginia."

Lastly, in regional news, "State Offers Details Online to Help Determine if Food Is Truly Kosher."
Posted at 16:12 by Howard Bashman



"Imagine a Nation Without Roe v. Wade": Cynthia Gorney has this essay today in the Week in Review section of The New York Times. A graphic headlined "Legal Patchwork" accompanies the essay.

The essay and chart raise an interesting question concerning the effect of a U.S. Supreme Court ruling that declares a state law unconstitutional. Assume that the Court issues a decision holding that the U.S. Constitution prevents a State from criminalizing certain specified conduct (e.g., early term abortion or consensual sodomy). Later, assume that the Court reverses course and holds that the U.S. Constitution does not prevent a State from criminalizing that same specified conduct.

Is the effect of the first ruling to wipe from the books in all States, or in any States, the laws criminalizing the specified conduct? Would the second ruling allow States to begin enforcing the laws that were in existence when first ruling issued that the first ruling had declared or implied were unconstitutional? Or would the second ruling require States that wished to criminalize the specified conduct to pass new laws doing so, even if those States had identical laws on the books when the Court's first ruling issued?
Posted at 10:40 by Howard Bashman



"Appeals judges: Call the votes." The Grand Rapids Press today contains an editorial that begins, "Three years after President Bush nominated three Michigan jurists for the federal bench -- and almost that long for a fourth nominee -- they and the president are owed up or down votes on the Senate floor."
Posted at 10:35 by Howard Bashman



"Specter rides again: Sen. Bait-and-switch." This editorial appears today in The Pittsburgh Tribune-Review. That newspaper today also contains a gossip column headlined "Who might succeed an ailing Arlen Specter?"
Posted at 10:32 by Howard Bashman



"High court in low gear": UPI Legal Affairs Correspondent Michael Kirkland had this news analysis last week.
Posted at 10:30 by Howard Bashman



"Keep Ten Commandments monument in state Capitol; Marker on Austin grounds recognizes legal foundation": Texas Attorney General Greg Abbott has this essay today in The Houston Chronicle.
Posted at 10:28 by Howard Bashman



"Rehnquist's Mixed Legacy": This editorial appears today in The Los Angeles Times.

And last Tuesday, Newsweek posted online an essay by Cliff Sloan entitled "A Final Chapter for the Chief Justice? The Supreme Court is hearing two cases that may help Rehnquist define his legacy."
Posted at 10:24 by Howard Bashman



"The Ten Commandments Reach the Supreme Court": Linda Greenhouse has this article today in The New York Times.

The Fort Worth Star-Telegram reports today that "Justices to deliberate religious monument."

The St. Petersburg Times today contains an article headlined "Supreme Court shalt decide on displays; Should the Ten Commandments be displayed on public property? The high court will hear arguments this week in a Texas case."

The Montgomery (Ala.) Advertiser reports today that "Court to weigh religious displays."

The St. Louis Post-Dispatch reports today that "High court shall rule on church, state issue."

And last Monday, The Washington Post contained a front page article headlined "Supreme Court on a Shoestring: Homeless Man Takes On Texas, Religious Display."
Posted at 09:00 by Howard Bashman



Last week's U.S. Supreme Court opinions and Order List: The Supreme Court of the United States last week issued three opinions in argued cases.

1. Last Wednesday, in Johnson v. California, No. 03-636, the Court ruled by a vote of 5-3 (or 6-2, depending on how you categorize Justice John Paul Stevens' dissent) that the California Department of Corrections' unwritten policy of racially segregating prisoners for up to sixty days each time they enter a new correctional facility is subject to strict scrutiny an express racial classification.

The case arose from the U.S. Court of Appeals for the Ninth Circuit, where one of that court's more conservative judges issued the opinion on behalf of a unanimous three-judge panel.

Four Ninth Circuit judges, including two on senior status, dissented from the denial of rehearing en banc. I questioned, in a post I wrote on the day the Ninth Circuit put that dissent from denial of rehearing en banc online, how judges prohibited from voting in favor of rehearing en banc could dissent from its denial, but in retrospect those dissenting senior judges have emerged quite prescient.

This stereotypical use of a racial classification by California prison authorities has resulted in a non-stereotypical reversal of the Ninth Circuit -- the reversal of a Ninth Circuit ruling that a majority on the Supreme Court viewed as too conservative. I'm sure that won't stop circuit split supporters from counting the reversal as one more reason why a split should occur immediately if not sooner.

In news coverage of the ruling, Linda Greenhouse reported in The New York Times that "Justices Tighten Review of California Prison Segregation."

In The Washington Post, Charles Lane reported that "Justices Rule Against Prisoner Segregation; Calif. Policy Targeted Racial Violence."

In The Los Angeles Times, David G. Savage and Jenifer Warren reported that "Justices Reject Segregation in State's Prisons; The Supreme Court says California's policy of separating incoming inmates by race, meant to curb violence, is constitutionally shaky."

In The San Francisco Chronicle, Bob Egelko reported that "Top U.S. court limits state's segregation of inmates; Justices allow rare exceptions, such as for gang affiliations."

The Sacramento Bee reported that "Prisons' racial policy in doubt; U.S. Supreme Court is making it tougher to segregate inmates."

And from National Public Radio, Thursday's broadcast of "Day to Day" contained a segment entitled "Court Rejects Segregated Prison Cells," while Wednesday's broadcast of "Talk of the Nation" contained a segment entitled "High Court Rules on Prison Segregation."

2. Last week's two other Supreme Court rulings issued on Tuesday and involved cases from Massachusetts. In Smith v. Massachusetts, No. 03-8661, the Court issued an interesting double jeopardy ruling. One of the reasons this 5-4 ruling was interesting is that it apparently represents (as Eugene Volokh notes here) the first time since Justice Stephen G. Breyer joined the Court that this group of nine Justices divided this precise way in a 5-4 decision. The majority consisted of Justices Antonin Scalia (the author of the opinion of the Court), John Paul Stevens, Sandra Day O'Connor, David H. Souter, and Clarence Thomas. In dissent were Justice Ruth Bader Ginsburg (author of the dissenting opinion), the Chief Justice, and Justices Anthony M. Kennedy and Stephen G. Breyer. Because the Court's composition is likely to change quite soon, I would expect that any remaining other heretofore unseen line-ups will be employed before the Court's current Term concludes.

3. The Court's unanimous (Chief Justice William H. Rehnquist not participating) decision in Stewart v. Dutra Constr. Co., No. 03-814, resolved whether the dredge known as the Super Scoop, a floating platform with a bucket that removes silt from the ocean floor and dumps it onto adjacent scows, qualified as a "vessel" for purposes of the Longshore and Harbor Workers' Compensation Act. Because the dredge intentionally moved itself around Boston Harbor (albeit ever so slowly) as part of the "Big Dig" highway construction project, the Court answered the question presented in the affirmative.

The Boston Globe covered these two rulings involving Massachusetts in an article headlined "High court reverses two Mass. findings."

Last week's Order List can be accessed here. The Court granted review in four cases (two of which were consolidated and present generally the same questions), including the assisted suicide case once known as Oregon v. Ashcroft. That grant provides the Court with a more stereotypical opportunity for reversing the Ninth Circuit. My coverage of the Ninth Circuit's ruling in that case can be accessed here, while a copy of the federal government's cert. petition is available at this link.

Finally, as noted here at "SCOTUSblog," the Court also granted review in two cases (the consolidated pair mentioned earlier) presenting the question whether employees at meat processing plants are entitled to compensation under the Fair Labor Standards Act for time they spend each day acquiring, donning, and doffing the special safety equipment their jobs demand. Fearing the consequences of a denial of review, the Order List notes here (at page 10) that the National Chicken Council filed an amicus brief in support of the petition for writ of certiorari.
Posted at 08:30 by Howard Bashman



"Top Court to Weigh Ten Commandments Cases": The Associated Press provides this report.
Posted at 00:30 by Howard Bashman



"New Round of Speculation About Rehnquist's Farewell": Neil A. Lewis and Linda Greenhouse had this article last Tuesday in The New York Times.
Posted at 00:28 by Howard Bashman



"Senator Critical of Proposal on Filibusters": In Friday's edition of The New York Times, Neil A. Lewis had an article that begins, "The Republican chairman of the Senate Judiciary Committee said Thursday that his party's proposal to change the Senate's rules if Democrats continued to block President Bush's judicial nominees would wreak havoc in the Senate."

In other coverage, The Washington Post on Friday contained articles headlined "Specter Predicts Turmoil May Grow From Impasse; Senator Blames Both Sides for Stalemate on Judges" and "Unrepentant Specter Is Finding Life Lonely in the Center," along with an editorial entitled "Adult Leadership." And on Thursday, columnist Ruth Marcus had an op-ed entitled "Specter Unbound."

Friday's edition of The Los Angeles Times reported that "Specter Indicates He'll Be His Own Man as Judiciary Chairman; Pennsylvania Republican says he opposes ending filibusters and vows to seek compromise."

The Philadelphia Inquirer on Friday contained articles headlined "Specter warns against eliminating filibusters on judicial nominees; He said Judiciary, which he heads, and the Senate would erupt; Hearings on nominees are to start" and "Specter hires wife of man who hired Specter's wife; Carolyn Short is on the Judiciary Committee staff; Her husband hired Joan Specter in 1998."

The Pittsburgh Post-Gazette reported that "Specter seeks smoother path for Bush picks."

Newsday reported that "Specter seeks to bargain."

The Washington Times reported that "Specter partly blames GOP."

Financial Times contained an article headlined "Warning over Bush judicial nominees."

Jesse J. Holland of The Associated Press reported that "Specter Blames Both Parties for Impasse."

Reuters reported that "Sen. Specter Urges Caution on Bush Judicial Showdown."

The Cox News Service reported that "Specter warns of turmoil over judges; Judiciary panel chief urges GOP not to change filibuster rule."

And Human Events Online reported that "Schumer Signals 'Nuclear' War on Nominees."

Earlier, The Hill on Wednesday contained an article headlined "I'm there if needed, says Hatch."

In commentary, The Roanoke Times yesterday contained an editorial entitled "The judicious Mr. Specter." And last Wednesday, The San Jose Mercury News contained an editorial entitled "Democrats must block activist judges."

At National Review Online, Byron York last Tuesday had an essay entitled "The GOP's New Plan: Will the high road work for Republicans?" And Harold Johnson last week had an op-ed entitled "Justice Janice Rogers Brown: She's Worth Going Nuclear Over" in The Orange County Register.

Elsewhere, The Mobile Register on Friday reported that "Timetable for Bill Pryor's renomination up in the air."

On Wednesday, The Washington Post reported that "Judicial Nominee Cleared in BLM Case; Interior IG's Report Critical of Others," while The Casper Star-Tribune contained an article headlined "Inspector lifts blame from nominee."

From Louisiana, The Times-Picayune reported yesterday that "Landrieu is in GOP's sights; Opposition on judge picks may be issue."

The Senate Judiciary Committee has two separate judicial confirmation hearings scheduled for the week of February 28, 2005. On Tuesday, March 1, 2005, the committee will hold its second hearing in as many years (view the notice of the first hearing at this link) for Ninth Circuit nominee William Gerry Myers III.

And on Thursday, March 3, 2005, three North Carolina nominees as to whom former U.S. Senator John Edwards had failed to return blue slips will receive a confirmation hearing. The lone U.S. Court of Appeals nominee in that group is Terrence W. Boyle, who thus far has had the bad fortune to have his nomination to the Fourth Circuit expire at the end of the first terms of Presidents Bush I and Bush II. Last Wednesday, the organization People For the American Way issued a press release entitled "New Report: Federal Judge Terrence Boyle Unfit for Promotion to Court of Appeals; Boyle as Federal Judge: High Reversal Rate, Troubling Record on Individual Rights." You can access that organization's report at this link.
Posted at 00:04 by Howard Bashman



Redesign of "How Appealing" is so subtle as to be imperceptible: Apparently the switch-over of this blog's publishing platform from Blogger to Movable Type isn't quite ready to be implemented yet. But stay tuned, as it could happen at any moment, or not at all.
Posted at 00:00 by Howard Bashman



Saturday, February 19, 2005
See you soon: Tomorrow morning, my family and I are embarking on a vacation to a warmer climate that will have us out of the country for part of the week. Fortunately, I finally have a passport. New posts will next appear here on Sunday, February 27, 2005.

While I'm away, the Legal Affairs web site will be launching a redesign scheduled to debut on Tuesday, February 22, 2005, when the site will be updated with the content of the magazine's March | April 2005 issue. My copy of that new issue arrived in the mail this past Thursday, and the magazine contains lots of great stuff, including a pair of articles in which two law professors who clerked at the U.S. Supreme Court debate Chief Justice William H. Rehnquist's impact on the Court.

When I return, if not sooner, "How Appealing" will also experience a minor redesign in connection with its transformation into a Movable Type blog. Among the features that this new publishing platform will offer will be the ability to search this blog's archives. Readers who spot court rulings or news reports that may be worth a mention on my return are encouraged to forward suggestions (including links) via email. Thanks, and have a great week!
Posted at 23:40 by Howard Bashman



In news from Washington State: The Seattle Post-Intelligencer today reports that "Democrats dealt blow in election challenge; Governor case likely to drag on."

And The Seattle Times reports that "Judge sides with GOP over election lawsuit."
Posted at 23:34 by Howard Bashman



"HLS Veterans Association Statement on Military Recruiting": The Harvard Law School Veterans Association issued this statement yesterday.
Posted at 22:35 by Howard Bashman



"Fort Trumbull Neighborhood Evokes Sadness And Resignation; Ex-residents Reminisce About Days Before Eminent Domain": This article appears today in The Day of New London, Connecticut.

The February 28, 2005 issue of U.S. News & World Report will contain an article headlined "A Homeowner's battle: The Supreme Court will hear a case on the scope of eminent domain."

Voice of America News reports that "Connecticut Residents Fight to Keep City From Taking Their Homes."

The AP reports that "Conn. Residents Want Court to Block Domain."

And The Salt Lake Tribune contains an article headlined "Supreme Court to consider legality of land grabs; 'Watershed case': Citizens' rights vs. economic development the main issue."
Posted at 21:14 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Court: Lesbian Must Support Adopted Kids"; "Neb. Woman Settles Muslim Garb Lawsuit"; "Pa. Judge May Face Fine Over Pocketknife"; and "Judge Who Pushed Desegregation Dies at 86."
Posted at 21:10 by Howard Bashman



"Specter is upbeat after treatment": The Philadelphia Inquirer contains this article today. And The Philadelphia Daily News reports that "Upbeat Arlen says he'll whip cancer; Senator will be undergoing chemo twice weekly for six months."
Posted at 21:04 by Howard Bashman



"Licenses rejected for those in Iowa illegally; Court decision affects immigrants' lives and possibly insurance rates for all drivers": This article appears today in The Des Moines Register, which also contains an editorial entitled "Reverse license ruling: Supreme Court said it's up to Legislature to change the law."

In other coverage, The Quad-City Times contains an article headlined "Court: No drivers' licenses for illegal immigrants."

The Omaha World-Herald reports that "Iowa court says illegal immigrants not entitled to driver's licenses."

And The Washington Times reports that "Iowa court rejects illegal aliens' suit."
Posted at 21:00 by Howard Bashman



In news from Nebraska: The Lincoln Journal Star reports today that "Doggy death sentence reversed." And The Omaha World-Herald reports that "Judge lets death-row dog walk."

Meanwhile, in other news, The World-Herald reports that "Widespread publicity no problem for the only resident of Nebraska town."
Posted at 20:45 by Howard Bashman



"Pick judges, not fights: Bush wrong to renominate judicial candidates already rejected." Newsday contains this editorial today.

Today in The Pasadena Star-News, Loretta Keller has an essay entitled "Potential Supreme Court makeup raises question of life terms."

And in The Tallahassee Democrat, Bill Press today has an op-ed entitled "Bill Frist wants to kick Mr. Smith out of Washington."
Posted at 20:12 by Howard Bashman



Gorilla + breast fetish = litigation: The San Francisco Chronicle reported yesterday that "Gorilla Foundation rocked by breast display lawsuit; Former employees say they were told to expose chests."

The San Jose Mercury News reports today that "Gorilla's handlers sue over being fired, alleging they were told to indulge fetish."

And The San Mateo County Times reports today that "Women sue over demand to bare their breasts to gorilla; Gorilla Foundation denies allegations surrounding Koko's so-called nipple fetish."

Koko's web site can be accessed here, while Koko's photo blog can be accessed at this link.
Posted at 17:00 by Howard Bashman



"Law students show inmate is innocent; Lodi man free after 10 years for rape he didn't commit": Bob Egelko has this article today in The San Francisco Chronicle.

Claire Cooper, legal affairs writer for The Sacramento Bee, reports that "Ruling goes beyond 'not guilty'; Peter Rose is officially innocent of raping a girl after serving time and being cleared by a DNA test."

And The Lodi News-Sentinel reports that "Rose's rape conviction thrown out for good."
Posted at 16:44 by Howard Bashman



"Supreme Court mulls decalogue displays": The Associated Press provides this report.

And from Michigan, The Daily Oakland Press reports that "Gosselin proposes Ten Commandments display."
Posted at 16:42 by Howard Bashman



George W. Bush once considered John Ashcroft for the U.S. Supreme Court: Tomorrow's issue of The New York Times will contain an article headlined "In Secretly Taped Conversations, Glimpses of the Future President."
Posted at 15:54 by Howard Bashman



Don't hate the playa: In news from Canada, CTV News reports that "Famous Players cuts same-sex ads after threats."
Posted at 14:14 by Howard Bashman



"Chief justice pulls plug on his Web site": The Providence (R.I.) Journal today contains an article that begins, "Frank J. Williams, the chief justice of the state Supreme Court, yesterday took down a personal Web site through which he had been soliciting paid speaking engagements." The web site can be accessed here.
Posted at 14:04 by Howard Bashman



"Bill Pryor's record shows judicial quality": This editorial appears today in The Mobile Register.

And The Birmingham News today contains an editorial entitled "Bill Pryor's second chance."

Tomorrow will mark the one-year anniversary of the date on which President Bush used a recess appointment to place William H. Pryor, Jr. on the U.S. Court of Appeals for the Eleventh Circuit. My extensive coverage of that news from one year ago tomorrow can be accessed by clicking here and scrolling up the page or by clicking here and scrolling down the page.
Posted at 14:00 by Howard Bashman



"Tired of TiVo? Beyond Blogs? Podcasts Are Here." The New York Times contains this article today, along with a related item headlined "Are You Ready to Listen to a Podcast?"
Posted at 13:15 by Howard Bashman



"Herald vows 1st Amendment fight: Jury awards judge $2.1M in libel case." This article appears today in The Boston Herald, along with an article headlined "Only a few companies will insure newspapers."

The Boston Globe reports that "Jury orders Herald to pay $2.1m in libel case."

The New York Times reports that "Boston Herald Is Ordered to Pay Judge $2 Million for Libel."

The Washington Post reports that "Boston Herald Is Fined $2 Million in Libel Case."

And yesterday evening's broadcast of NPR's "All Things Considered" contained a segment entitled "Boston Jury Awards $2.1 Million to Judge in Libel Case."
Posted at 10:30 by Howard Bashman



"Rehnquist to Keep Working at Home; The chief justice, being treated for cancer, will not be present when the high court reconvenes": The Los Angeles Times contains this article today.

And Michael McGough of The Pittsburgh Post-Gazette reports today that "U.S. chief justice still not on bench; Rehnquist to be absent at least 2 more weeks."
Posted at 10:14 by Howard Bashman



Friday, February 18, 2005
"Rehnquist to Miss 2 Weeks on Bench": This article will appear Saturday in The Washington Post.
Posted at 23:12 by Howard Bashman



Available online from law.com: Tony Mauro has articles headlined "D.C. Circuit Judge Gets on Supreme Court Short List" and "Rehnquist to Miss Court Arguments This Week."

In other news, "Pre-'Crawford' Precedent on Hearsay Ruled Invalid; 'Thomas' no longer controls in New York, panel says."

And Mark K. Moller has an essay entitled "Class Action Act Doesn't Go Far Enough."
Posted at 22:14 by Howard Bashman



"Specter starts chemotherapy regimen; Activists wish him well, remind him of judicial promise": CNN.com provides this report.
Posted at 21:34 by Howard Bashman



"Update on the Chief Justice": Lyle Denniston has this post online at "SCOTUSblog."

In addition, today's U.S. Supreme Court Order List can be accessed here.
Posted at 20:25 by Howard Bashman



"Bush Signs Law to Curb Class-Action Suits": The Los Angeles Times provides this news update.
Posted at 20:04 by Howard Bashman



"Neb. Supreme Court Spares Life of Dog": The AP provides this report on a decision that the Supreme Court of Nebraska issued today.
Posted at 19:55 by Howard Bashman



"Jury finds Boston Herald libeled judge": The Associated Press provides a report that begins, "The Boston Herald was ordered Friday to pay $2.1 million for libeling a Superior Court judge in articles that portrayed him as lenient toward defendants and quoted him making insensitive comments about a 14-year-old rape victim."
Posted at 19:44 by Howard Bashman



A report on last night's panel discussion at Fordham University School of Law regarding citation of unpublished federal appellate opinions: Ira B. Matetsky was there and kindly sends along this report:
The panelists were Chief Judge Boudin of the First Circuit, Judge Leval of the Second Circuit, Judge Becker of the Third Circuit. Professor Patrick Schiltz of the University of St. Thomas Law School, who is Reporter for the Federal Appellate Rules Committee, gave an opening presentation defining the issue and served as moderator, and Professor Daniel Capra of Fordham Law School introduced the participants.

Professor Schiltz's opening remarks noted the extent of the controversy regarding citation of unpublished opinions, including the tabling of proposed Appellate Rule 32.1 for a year of further study. He stated that this issue has been on his Committee's agenda since 1991 and that proposed Rule 32.1 had received the second-most comments of any proposal in the history of federal rulemaking. (That leaves me curious what topic received the most comments -- perhaps either class action changes or initial disclosures, but those are guesses.) A common theme among the remarks of all three judicial panelists was similarly that non-citation rules had become more controversial and the rhetoric surrounding this issue had become much more heated, on both sides, than the subject perhaps deserved.

Judge Becker noted that the Third Circuit's Rules allow litigants to cite that Circuit's "non-precedential opinions." In his experience, such citations, while authorized, are infrequent, and the rule has never created any problem. He stated that during the years he served as Chief Judge, he steered his court away from its former practice of issuing "one-line" decisions (i.e., "Affirmed", with no opinion) in favor of issuing brief but reasoned opinions giving the reason for the result in cases that a panel did not feel called for a full, precedential opinion (although the court, to his regret, adhered to the practice that opinions do not cite earlier, non-precedential opinions).

With regard to the proposed rules change, Judge Becker stated that "I do not understand all the sturm and drang regarding this issue -- it's a matter of plain simple logic" that a court's opinions should be citable. In answer to the question "where do we go from here?", Judge Becker indicated that the path ahead was unclear because the issue had become terribly politicized, particularly in the Ninth Circuit, but that the debate has gone on long enough and ought to be resolved.

Judge Leval defended the Second Circuit's rule that the court's "summary orders" must not be cited (except in related litigation) and said that he, like most judges of his court, believed that changing the Second Circuit's rule would have a negative effect on the overall quality of justice and that each Circuit should have the right to adopt its own rule on this matter. In the Second Circuit, as in other courts, the judges are overworked as a result of caseload pressures and have to allocate their time. They have chosen to allocate the most time to producing published opinions, because while every case is important to the litigants, not every case is important for its precedential value. Writing a precedential judicial opinion is a difficult and time-consuming task, and summary orders are prepared more quickly and do not always attain the level of clarity and exposition that a published opinion would contain.

Judge Leval emphasized that this does NOT mean that the court is deciding cases incorrectly or inconsistently, just that "this is the real world and there is no time to do everything perfectly." He added that while he knows that lawyers resent being unable to cite decisions on their client's side, it often is the case that if an opinion had been polished for publication, an overbroad statement of the law would not have been present in it. Judge Leval concluded that if caseload pressures were less, he would be on the other side of this issue, but based on the situation today, he believed the Second Circuit's non-citation rule was still needed.

Chief Judge Boudin stated that having heard strong arguments in favor of permitting and of prohibiting citation of unpublished appellate opinions, the audience might be surprised to hear his intermediate position: that it doesn't matter much. Judge Boudin stated that two years ago, the First Circuit had changed its Local Rule to permit (but disfavor) citation of the court's unpublished opinions, and that the change had made little difference to the court's operations. Surrounding the citation issue, however, are what he considered more interesting questions, such as whether all appellate opinions are entitled to precedential weight (the late Judge Richard Arnold's position in Anastasoff); whether public pressure on the judiciary, whether or not misguided, would ultimately force a change in the current rule; and whether it would be worth spending the substantial additional money that would reduce each federal judge's workload so as to allow every opinion to be fully polished and perfected.

During the panel discussion, the judges discussed the procedures by which unpublished opinions are prepared in their respective circuits, stating that judges (as opposed to staff attorneys) play a role in their preparation. In response to an audience question, Judge Leval noted that in the Second Circuit (and he believed in others as well), if an unpublished opinion actually would establish needed precedent in the circuit, a motion can be filed to change the opinion's status and publish it, and that the court had granted such motions in appropriate cases.

In response to my question pointing out that several District Judges in the Second Circuit have cited unpublished Second Circuit opinions, the judges observed that considerations concerning citation of these opinions to, or by, District Judges might be viewed differently from citation of the same opinions to the appeals courts. Finally, Judge William Bassler of the District of New Jersey, who was present in the audience, observed that District Judges do appreciate guidance as to their Circuit's views on an issue, even where they are available in a non-precedential form.
Ira advises that an upcoming issue of the Fordham Law Review will contain a transcript of the panel discussion.
Posted at 15:45 by Howard Bashman



Animal, mineral, or vegetable? Appellate lawyers and appellate courts often must wrestle over whether an issue raised on appeal presents a question of fact, a question of law, or a mixed question of law and fact.

Generally speaking, appellate courts review a fact-finder's factual determinations under a quite deferential standard. By contrast, appellate courts exercise what is alternately referred to as plenary or de novo review of legal determinations, showing no deference to the trial court's resolution. And as to mixed questions, appellate courts usually engage in plenary review of a trial court's application of the law to the facts of a case.

Today, Third Circuit Judge Thomas L. Ambro issued a concurring opinion that discusses in detail the process through which one can decide where along the continuum of fact and law an issue falls. Judge Ambro writes:
The Supreme Court has written that "we [do not] yet know of any . . . rule or principle that will unerringly distinguish a factual finding from a legal conclusion." Pullman-Standard v. Swint, 456 U.S. 273, 288 (1982). However, a practical test I propose for determining whether a question is of fact, of law, or of both fact and law, is as follows. A question of fact can be answered solely by determining the facts of a case (without any need to know the law relevant to the case). A question of law can be answered solely by determining what relevant law means (without any need to determine the facts of a case). A mixed question of fact and law can only be answered by both determining the facts of a case and determining what the relevant law means.

For example, imagine that a man is appealing his conviction under a law that states "it is a crime to be tall." What kind of question is: "Was the trial court correct to find the man 'tall'?" Can we answer it solely by determining the facts of the case? No, because even if we know the fact that the man is five feet ten inches, we do not know if he is "tall" in the sense that Congress intended the word "tall" to mean. Can we answer it solely by determining what the relevant law means without knowing the man's height? No, because even if we know that the statute defines "tall" as "six feet or taller," we do not know how tall the man is. Thus, we have a mixed question of fact and law. Once we know the facts of the case (that the man is five feet ten inches tall), and what the relevant law means (it is a crime to be six feet tall or taller), we can answer "no" to the question "Was the trial court correct to find the man 'tall'?"
You can access the complete decision that includes Judge Ambro's concurring opinion at this link.
Posted at 14:20 by Howard Bashman



The wire services are reporting: Jesse J. Holland of The Associated Press reports that "Bush Signs Bill to Curb Class-Action Suits." And Reuters reports that "Bush Signs Law Curbing Class-Action Lawsuits."

In other news, The AP reports that "Specter Optimistic Before Chemotherapy."
Posted at 12:40 by Howard Bashman



The online archive of my monthly appellate columns is now up-to-date: You can access them all via this link. Newly published online today are columns headlined:The dates listed indicate when the columns appeared in the print edition of The Legal Intelligencer, Philadelphia's daily newspaper for lawyers.
Posted at 12:21 by Howard Bashman



"Rehnquist to Miss High Court's Opening": Hope Yen of The Associated Press reports here that "Ailing Chief Justice William H. Rehnquist will be absent from the bench when the Supreme Court returns for the second half of its term next week, the court announced Friday." Indeed, according to the article, the Chief Justice does not plan to participate in any of the oral arguments scheduled to occur over the next two weeks, although he is expected to be voting on how those cases are decided.
Posted at 12:18 by Howard Bashman



Solomon Amendment-related news and commentary: Yesterday's edition of The Chronicle of Duke University contained an article headlined "Law students fight military recruiting act."

The Columbia Spectator today reports that "Ghosts of '68 Haunt Latest ROTC Debate; Current Fight Over ROTC's Return to Campus is Newest Chapter in Program's Controversial History."

And The Cavalier Daily of the University of Virginia today contains a quite interesting essay by columnist Noah Peters entitled "A misguided militancy."
Posted at 11:15 by Howard Bashman



"Court: No Right to Licenses for Illegals." The Associated Press provides this report on a ruling that the Supreme Court of Iowa issued today.
Posted at 11:10 by Howard Bashman



The cause of death was not an automobile accident: The New York Times today contains an obituary headlined "Samuel Alderson, Crash-Test Dummy Inventor, Dies at 90" and offers this close-up of a family of crash-test dummies. As of yet, I have seen no statement across the wire from Crash Test Dummies.
Posted at 11:05 by Howard Bashman



"Court Won't Reconsider Anna Nicole Ruling": The Associated Press provides this report. You can access Wednesday's order of the U.S. Court of Appeals for the Ninth Circuit at this link. My initial coverage of the Ninth Circuit's opinion in the case can be accessed here.
Posted at 10:40 by Howard Bashman



"Bush to Sign Bill Limiting Class-Action Lawsuits": This segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition."

Yesterday, The Nation posted online an essay entitled "Tort 'Reform' Triumphs" by Dan Zegart.
Posted at 10:35 by Howard Bashman



"Same-sex marriage ban stands; 3 gay couples say they won't take ruling that upholds law to the state's Supreme Court": The Indianapolis Star contains this article today.
Posted at 08:32 by Howard Bashman



"U.S. Judge Sees Stonewalling on Tapes in Terrorism Case": This article appears today in The New York Times.
Posted at 08:28 by Howard Bashman



We may learn today whether Chief Justice William H. Rehnquist plans to be present for next week's oral arguments in the Supreme Court of the United States: Before the last few argument sessions, announcements of his non-participation at oral argument were released on the Friday before the argument session. The next argument session begins on Tuesday, February 22, 2005, because Monday is a federal holiday.
Posted at 07:33 by Howard Bashman



"More On President Bush's Proposed Same-Sex Marriage Amendment: Part Two of a Series on Wise and Unwise Constitutional Amendments." Vikram David Amar and Alan Brownstein have this essay today online at FindLaw.
Posted at 07:30 by Howard Bashman



"The Effects of New Technologies on Covering the Court": Law Professor Douglas A. Berman, author of the "Sentencing Law and Policy" blog, has this post about yesterday's panel discussion sponsored by the Supreme Court Fellows Program.
Posted at 07:29 by Howard Bashman



"S.F. court to hear challenge to Bush national forest rules": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 07:28 by Howard Bashman



"Order in the court; Titles pass, but the work and goals are constants": This editorial appears today in The Arizona Republic.
Posted at 07:27 by Howard Bashman



Ten Commandments news: From Indiana, The Princeton Daily Clarion reports today that "Hostettler asks Bush not to enforce removal of Gibson monument."
Posted at 07:25 by Howard Bashman



On this date seventeen years ago: Anthony M. Kennedy was sworn in as the 104th justice of the U.S. Supreme Court.
Posted at 07:18 by Howard Bashman



The Houston Chronicle is reporting: In today's newspaper, an article reports that "5 people give judge alibis at porn trial; Witnesses testify he was elsewhere on days he is accused of illegally using his laptop."

And in other news, "Court to reconsider man's conviction; Appeals panel's move in the 1998 assault case comes as a surprise."
Posted at 07:12 by Howard Bashman



"Bankruptcy Bill Advances; Full Senate to Debate Substantive Change in Law": The Washington Post contains this article today.
Posted at 07:10 by Howard Bashman



"Specter to talk about his illness, politics": This article appears today in The Pittsburgh Post-Gazette. And The Philadelphia Inquirer reports that "Ailing Specter plans news conference today."
Posted at 07:07 by Howard Bashman



"Senate OKs spouse rape bill": The Arizona Republic contains this article today.
Posted at 07:05 by Howard Bashman



"Sen. Reid Assesses Political Climate": This segment (transcript with link to audio) in which judicial filibusters were discussed appeared on yesterday's broadcast of the PBS program "The NewsHour with Jim Lehrer."
Posted at 07:00 by Howard Bashman



"Victory For Bush On Suits; New Law to Limit Class-Action Cases": The Washington Post contains this front page article today.

The New York Times reports that "Quick, Early Gains Embolden Business Lobby."

The Los Angeles Times reports that "Legal System Makeovers Fill the GOP's Briefcase; Bush may sign a bill today that limits class-action suits; An overhaul of bankruptcy laws is another chore on Republicans' to-do list."

USA Today reports that "Bush to sign bill on class-action suits; Law will move large cases from state to federal courts."

The Washington Times reports that "House approves class-action act."

The Philadelphia Inquirer reports that "Bush receives bill expected to cut class-action suits; It bars state courts from taking most large ones, which then will go to federal courts; Foes say that will often kill the suits."

The Seattle Post-Intelligencer reports today that "Class-action limits await Bush signing; Some say businesses will be favored by bill that pushes suits to federal courts."

And Newsday reports that "For lawyers, this law will sting."
Posted at 06:50 by Howard Bashman



"Salazar back in the spotlight; Senator faces vote on judicial nominee he once praised": This article appears today in The Rocky Mountain News.
Posted at 06:45 by Howard Bashman



Thursday, February 17, 2005
"Congress Sends Lawsuit Legislation to Bush": This evening's broadcast of NPR's "All Things Considered" contained this segment (RealPlayer required).
Posted at 22:35 by Howard Bashman



Available online from law.com: An article reports that "Circuits Wrestle With Fallout From 'Booker'; Courts issue a flurry of differing calls on sentencing."

Tony Mauro has an article headlined "Guiding the Masters at the Supreme Court."

Shannon P. Duffy reports that "3rd Circuit Upholds Dismissal of Class Action Against Salomon Smith Barney."

In other news, "Calif. High Court to Take Up Issue of Teen Smokers."

And an article reports that "Wrongful Death Suit Allowed Over Embryo; Action over discarded fertilized egg could have broader ramifications."
Posted at 22:32 by Howard Bashman



Another Justice Sandra Day O'Connor bobblehead doll is up for auction at eBay: You can access the listing here. Happy bidding!
Posted at 22:02 by Howard Bashman



"Appeals court advises Broward judge to step down in murder case": The South Florida Sun-Sentinel today contains an article that begins (quite unexpectedly, given the article's headline), "The fact that a murder suspect's attorney supported a challenger to Broward Circuit Judge Cheryl Aleman in the last election is not enough to force the judge off the case, a state appeals court ruled Wednesday."

You can access yesterday's ruling of Florida's Fourth District Court of Appeal at this link.
Posted at 21:57 by Howard Bashman



"Jackson Grand Jury Transcripts on Web; A website released what it said was hundreds of pages of transcript from the grand jury proceedings that resulted in the 10-count felony indictment of Michael Jackson on charges he molested a 13-year-old boy": The Los Angeles Times provides this news update. The web site that has posted the transcripts is The Smoking Gun, and you can access the transcripts via this link.
Posted at 21:55 by Howard Bashman



"Court: Wife broke law with spyware." Declan McCullagh of c|net News.Com had this article on Tuesday. You can access last Friday's ruling of Florida's Fifth District Court of Appeal at this link.
Posted at 21:03 by Howard Bashman



"State Supreme Court to review class-action tobacco suit": Claire Cooper, legal affairs writer for The Sacramento Bee, today has this article in that newspaper.
Posted at 17:58 by Howard Bashman



"White House Opposes Moussaoui Appeal": The Associated Press provides this report.
Posted at 17:55 by Howard Bashman



"Cases test new flexibility of sentencing guidelines; The longest-ever sentence for securities fraud is among many old cases under review because of a high court ruling": This article will appear Friday in The Christian Science Monitor.
Posted at 17:50 by Howard Bashman



Decalogue blog: In news from Georgia, The Athens Banner-Herald reports today that "Hart schools to stay out of Commandments fight; Will wait for Supreme Court."

From Florida, The Palm Beach Post reports today that "Banned Ten Commandments monument comes to Florida." You can view the monument in Florida at this link.

And The University at Buffalo Reporter today contains an article headlined "Finkelman to speak at UB; Law prof served as expert in Ten Commandments lawsuit."
Posted at 16:00 by Howard Bashman



"High Drama, Conflict Await Supreme Court": Hope Yen of The Associated Press provides this report. A related item is headlined "Death Penalty, Commandments Await Court."
Posted at 15:52 by Howard Bashman



"Va. Proposal Would Make Prayer a Right; Lawmaker Seeks to Amend Wording Dating to Mason": The Washington Post contains this article today.
Posted at 15:12 by Howard Bashman



"Chinese Immigrants Appeal to Get Daughter Back; The girl, 6, remains with foster parents after her mother and father lost custody in a ruling that some say was colored by cultural bias": This article appears today in The Los Angeles Times.
Posted at 15:10 by Howard Bashman



"Congress OKs Law on Class Action Suits": Jesse J. Holland of The Associated Press provides this report. And Reuters reports that "Congress Approves Class Action Suit Curbs." Today's vote in favor of the legislation in the U.S. House of Representatives was 279-149.
Posted at 13:55 by Howard Bashman



And he pleaded "not guilty" (of course): In newz from New Zealand, The New Zealand Press Association reports that "Protester on indecent exposure charge arrives at court naked."
Posted at 13:40 by Howard Bashman



"2 district judges charged with misconduct; One is accused of mass acquittal of defendants": The Pittsburgh Post-Gazette contains this article today. You can access at this link the Judicial Conduct Board's misconduct complaint in the mass acquittal matter.
Posted at 13:30 by Howard Bashman



"Judge dismisses challenge to Utah ban on polygamy; He says those who filed lawsuit face an insurmountable hurdle": The Deseret Morning News contains this article today. And The Salt Lake Tribune reports that "Challenge of Utah polygamy law swatted down; Monogamy reaffirmed: A Supreme Court ruling on sodomy laws does not apply, the judge rules."

Update: You can access Tuesday's ruling of the U.S. District Court for the District of Utah at this link.
Posted at 13:20 by Howard Bashman



"Charges dismissed against anti-gay activists": The Philadelphia Inquirer offers a news update that begins, "In a case that has received national attention, a Philadelphia judge today dismissed all criminal charges against four antigay activists arrested last fall while trying to preach their message during a Center City street festival for gays and lesbians."
Posted at 13:08 by Howard Bashman



"Fight over Myers bad for court, West": This editorial appeared yesterday in The Idaho Statesman.
Posted at 11:35 by Howard Bashman



On tonight's episode of "The West Wing," the role of Howard Bashman will be played by Lurch the Butler: This afternoon in Washington DC, the Supreme Court Fellows Program will host a panel discussion (details here) concerning the impact of new technologies on how the media covers the Supreme Court. Law Professor Douglas A. Berman will be on the panel, as will Dahlia Lithwick and Lincoln Caplan.

Meanwhile, at the recent Bloggercon III event, Law Professor Lawrence Lessig led a discussion on two topics, one of which was:
The extraordinarily important growth of law blogs, and their direct (and indirect) influence on the practice of law, and the decision of cases. It is said that Howard Bashman's blog has become the 38th Clerk at the Supreme Court. How will this area of blog space continue to grow?
You can access online the audio from that discussion via this link. (Thanks to "ProfessorBainbridge.com" for the inspiration for this post's title.)
Posted at 10:54 by Howard Bashman



"Federal Judges in 2005": On Tuesday and Wednesday of this week, the NPR program "Fresh Air from WHYY" contained segments on this topic.

On Tuesday's broadcast, an interview with Ralph G. Neas, president of People For the American Way, aired in a lengthy segment entitled "Rights Concerns" (RealPlayer required).

And on yesterday's broadcast, an interview with C. Boyden Gray, chairman and founder of the group Committee for Justice, aired in a lengthy segment entitled "Conservative View" (RealPlayer required).
Posted at 10:12 by Howard Bashman



"Contempt & Praise for Reporter; Facing Jail, Judith Miller Gains Support for Stance": Howard Kurtz has this article today in The Washington Post.

The Los Angeles Times today contains an editorial entitled "Jailing Journalists."

The Rocky Mountain News contains an editorial entitled "Reporters face time for no crime."

And USA Today contains an editorial entitled "Law would shield reporters, protect public interest, too."

Meanwhile, online at Slate Daniel Engber has an explainer essay entitled "What About Bob? Judith Miller and Matt Cooper seem to be headed for jail. Why isn't Robert Novak?"
Posted at 10:04 by Howard Bashman



"Tribes appeal bones ruling": The Tri-City Herald yesterday contained an article that begins, "Northwest tribes have filed an appeal in the Kennewick Man case in hopes of being involved in a planned study of the 9,400-year-old bones." At this rate, the Kennewick Man will have had more appeals pending before the U.S. Court of Appeals for the Ninth Circuit than many people half his age.
Posted at 10:02 by Howard Bashman



The bank has made a $693,000 error in your favor! "Not so fast," the U.S. Court of Appeals for the Sixth Circuit declares in this decision issued today.
Posted at 10:00 by Howard Bashman



"House Set to Give OK on Class Action Suits": Jesse J. Holland of The Associated Press provides this report.
Posted at 09:42 by Howard Bashman



"No Protection for Bloggers": Adam L. Penenberg has this essay online at Wired News.
Posted at 09:28 by Howard Bashman



In today's edition of The New York Times: An article reports that "Federal Panel Consolidates Vioxx Suits."

An article is headlined "Cops' Favorite Target Thug, but Just Who Was the Guy?"

And an editorial is entitled "The Need for a Federal Shield."
Posted at 09:25 by Howard Bashman



"Frist-Reid talks touch on 'nuclear option,' other issues": This article appears today in The Hill. Also today in that newspaper, Byron York has an essay entitled "Harry Reid, the Kurds and Filibusters."

From South Dakota, The Associated Press reports that "Johnson, Thune Disagree On Use Of Judicial Filibusters."

The Forward will report in tomorrow's edition that "AJCommittee Opposes GOP Senate Plan." That article begins, "The campaign to stop Senate Republicans from banning filibusters on federal judicial nominees received a boost this week from an influential Jewish civil-rights agency."

Finally for now, The Amarillo Globe-News today contains an editorial entitled "U.S. Senate holds court on judicial nominations."
Posted at 07:33 by Howard Bashman



"Ross Execution May Bow To Constitutionality Issue; State Death Penalty Racially Biased, Say Death-row Inmates": The Day of New London, Connecticut contains this article today.
Posted at 07:30 by Howard Bashman



"Just what is 'community service'? Justice balks at letting museum head spend his sentence reading up on law he broke." This article appears today in The Houston Chronicle. Relatedly, the Smithsonian Institution was the subject of this decision that the U.S. Court of Appeals for the Second Circuit issued yesterday.
Posted at 07:28 by Howard Bashman



"The Blogs Must Be Crazy: Or maybe the MSM is just suffering from freedom envy." Peggy Noonan has this essay today in The Wall Street Journal.
Posted at 07:27 by Howard Bashman



"Court to rule whether state can ban tobacco ads; Cigarette makers say only the feds have the right to regulate": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 07:25 by Howard Bashman



"U.S. appeals Pittsburgh judge's obscenity ruling; Federal judge ruled laws infringe on consenting adults' rights to possess material": Michael McGough of The Pittsburgh Post-Gazette today has this article in that newspaper. My initial report on, and a link to, that ruling can be accessed here.
Posted at 07:22 by Howard Bashman



"Specter has Hodgkin's, is upbeat on recovery": This article appears today in The Philadelphia Inquirer.

The Philadelphia Daily News reports that "Arlen battling cancer; Senator diagnosed with Hodgkin's disease."

The Pittsburgh Post-Gazette reports that "Specter diagnosed with rare Hodgkin's lymphoma."

The Los Angeles Times reports that "Sen. Specter Says He Has Cancer."

Newsday reports that "Senate leader battles cancer."

And USA Today reports that "Sen. Arlen Specter receives diagnosis of Hodgkin's disease."
Posted at 07:15 by Howard Bashman



"Interior report slams grazing deal": The Casper (Wyo.) Star-Tribune contains this article today.
Posted at 07:12 by Howard Bashman



"Study Shows Steady Slowing of Judicial Confirmations": This article appears today in The New York Sun. You can view the study at this link. And you can view via this link the video of an event held on Monday to discuss the study.
Posted at 07:02 by Howard Bashman



Wednesday, February 16, 2005
On this evening's broadcast of NPR's "All Things Considered": The broadcast contained segments entitled "Canadian Teen Remains in U.S. Detention After Three Years" and "Reporters Must Now Seek the Truth at Their Own Risk" (RealPlayer required).
Posted at 23:20 by Howard Bashman



"A fight to keep their homes: Is it 'public use' when a city seizes homes and gives them to a private developer? The Supreme Court takes up the question." Warren Richey has this article today in The Christian Science Monitor. That newspaper today also contains an article headlined "Property rights: not a given for churches; Religious groups don't generate taxes. Could that make them prime targets for eminent domain actions?"

And The Helena Independent Record today contains an op-ed by Anthony Sanders entitled "Eminent domain abuse."
Posted at 22:44 by Howard Bashman



"Justice Dept. Fights Ruling on Obscenity": Thursday's issue of The New York Times will contain this article.
Posted at 22:35 by Howard Bashman



"Specter to Be Treated for Hodgkin's Disease": This article will appear Thursday in The Washington Post.

Thursday's edition of The New York Times will report that "Specter Has Hodgkin's Disease and Will Have Chemotherapy."

And CNN.com reports that "Specter diagnosed with Hodgkin's disease; Doctor: Chances of cure 'excellent' for Senate judiciary chairman."
Posted at 22:22 by Howard Bashman



Available online from law.com: Tony Mauro reports that "Justice Thomas Finds Himself in Inauguration Controversy."

In other news, "N.Y. High Court Sees No Time Bar to DNA Motions."

And in news from Florida, "The Word According to David Boies."
Posted at 22:15 by Howard Bashman



"Bible Belt Upside the Head: Why the Constitution tries so hard to protect the Buddhist kid." Dahlia Lithwick has this jurisprudence essay online at Slate.

And online at Newsweek, Howard Fineman has an essay entitled "Biblical Politics: An upcoming Supreme Court case on the Ten Commandments could give the Dems a chance to reconnect to the faithful."
Posted at 22:12 by Howard Bashman



"Myers facing further scrutiny; Judicial nominee has already been accused of ignoring sacred sites": Native American Times offers this report today.
Posted at 22:11 by Howard Bashman



In news from Detroit: The Detroit News reports today that "Terror case frustrates judge; trial set for June; Federal jurist imposes conditions so the key defendant can look for a job." And The Detroit Free Press reports that "Ex-terror suspects seeking freedom; They want to get jobs, lawyers say."

The Free Press today also reports that "Kerkorian-DCX case in limbo a year later; No signs of settlement or ruling are seen."
Posted at 22:10 by Howard Bashman



The wire services are reporting: The Associated Press reports that "Justice to Appeal Tobacco Award Decision." And Reuters reports that "U.S. to Appeal Ruling on Tobacco Case Penalty."

Jesse J. Holland of The AP reports that "Pa. Sen. Specter Says He Has Hodgkin's." And Thomas Ferraro of Reuters reports that "Sen. Specter, Judiciary Panel Chair, Has Cancer."

The AP reports that "Gonzales Seeks to Reinstate Obscenity Case."

Finally, Reuters reports that "CSX Files to Block D.C. Hazmat Transport Ban." And The AP reports that "Railroad Challenges D.C. Ban on Shipments."
Posted at 20:25 by Howard Bashman



"Senator Specter diagnosed with Hodgkin's disease": The Philadelphia Inquirer provides this news update. The text of a press release issued by the office of Senator Arlen Specter (R-PA) can be accessed here.
Posted at 17:50 by Howard Bashman



"Judicial Battle Likely Still Months Away": So Roll Call asserts in an article available only to subscribers.
Posted at 16:00 by Howard Bashman



U.S. Court of Appeals for the D.C. Circuit denies request for initial hearing en banc filed by Guantanamo detainee Salim Ahmed Hamdan: You can access the order, entered on Friday of last week, at this link. More information about the case can be found in this article published in USA Today.
Posted at 15:25 by Howard Bashman



"Britain Faulted Over McDonald's Libel Case": This article appears today in The New York Times.
Posted at 14:08 by Howard Bashman



"Judging Judges": Yesterday evening's broadcast of the PBS program "The NewsHour with Jim Lehrer" contained this segment (direct link to transcript, which provides links to video) regarding President Bush's judicial nominations.
Posted at 14:02 by Howard Bashman



"AFL-CIO Worried by Asbestos Plan Reopening": Reuters provides this report.
Posted at 14:00 by Howard Bashman



"Punishing Good Journalists": CBS News legal analyst Andrew Cohen has this essay today.
Posted at 13:10 by Howard Bashman



Where in the U.S. Constitution do you find the concept of "substantive due process"? This opinion that a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued today is rather interesting. The opinion's author is Circuit Judge Terence T. Evans.
Posted at 13:02 by Howard Bashman



"Court puts halt to judge's inquiry; Panel ends probe of prosecutors": The Chicago Tribune today contains an article that begins, "Saying a federal judge overstepped his authority, an appeals court in Chicago on Tuesday ordered a halt to the judge's inquiry into whether a federal prosecutor committed a crime by violating grand jury secrecy rules." And The Chicago Sun-Times today contains an article headlined "Get along in interest of justice, judge and prosecutor told."

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 11:45 by Howard Bashman



"Court Rules Against Reporters in CIA Leak Case": This segment (RealPlayer required) featuring Nina Totenberg appeared on today's broadcast of NPR's "Morning Edition."
Posted at 11:40 by Howard Bashman



Making a federal case out of it: Today the U.S. Court of Appeals for the Eighth Circuit issued an opinion that begins, "This federal case charges violations of procedural due process and failure to train, arising from a school district's ten-day suspension of two student cheerleaders who consumed alcohol shortly before performing at a school football event."
Posted at 11:38 by Howard Bashman



"Bush Combs Senate for Friendly Democrats; White House Lobbyists Estimate a Third of Opposition Will Provide Occasional Support": This article (free access provided) appears today in The Wall Street Journal.
Posted at 11:35 by Howard Bashman



"Backlog or Backfire? Corporations may rue the day they fought for class-action reform." Stephanie Mencimer has this essay online today at The American Prospect.
Posted at 11:32 by Howard Bashman



The Houston Chronicle is reporting: Harvey Rice reports that "Truck deaths defendant gets 5th trial date."

And in other news, "Prosecutor says porn was traced to judge; Official denies using county computer to visit Internet sex sites."
Posted at 11:30 by Howard Bashman



Today's editorial cartoon from Tom Toles of The Washington Post on President Bush's judicial renominations: You can view the cartoon by clicking here.
Posted at 11:28 by Howard Bashman



In news from Washington State: The Seattle Times reports today that "Justices hear dispute between Times, P-I."

And The Seattle Post-Intelligencer reports today that "Justices quiz attorneys in papers' JOA dispute."
Posted at 08:35 by Howard Bashman



"Court told traffic stops based on race not unconstitutional": This article appears today in The Arizona Republic.
Posted at 08:32 by Howard Bashman



"Report Fuels Questions About Judicial Nominee": Henry Weinstein has this article today in The Los Angeles Times.
Posted at 08:30 by Howard Bashman



"Ruling upheld against reporters": The Washington Times contains this article today.

Newsday reports that "Reporters must testify in CIA leak probe."

And The Washington Post contains an editorial entitled "A Shield for a Free Press."
Posted at 08:28 by Howard Bashman



"Chertoff becomes nation's anti-terror czar; Jerseyan takes charge of sprawling Homeland Security after Senate vote": This article appears today in The Newark Star-Ledger.

The Los Angeles Times reports that "Chertoff OKd as Homeland Security Chief; Senate approves federal judge, 98-0, despite questions on his role in interrogation policy."

And The Washington Times reports that "Chertoff OK'd as homeland secretary."
Posted at 08:25 by Howard Bashman



Tuesday, February 15, 2005
"Judicial Nominee Criticized; Actions at Interior Dept. Questioned by Inspector General": Wednesday's edition of The Washington Post will contain an article that begins, "The Interior Department's inspector general has criticized the actions of a judicial nominee who is seen by some Republicans as the best hope of breaking Senate Democrats' long-standing resistance to some of President Bush's choices for federal judgeships."

And in somewhat related news, Jesse J. Holland of The Associated Press reports that "Senate Panel Taking Up Bush Judge Picks."
Posted at 23:48 by Howard Bashman



Available online from the Daily Journal: Yesterday, that publication reported that "Minister Can Sue Church For Harassment."

And today, the publication reports that "Bing Crosby's Managers Lose Discovery Row; Documents in Case Over Royalties Are Not Confidential."
Posted at 23:24 by Howard Bashman



In Wednesday's edition of The Hill: An article will report that "Impeachment of judge mulled by Judiciary."

And in other news, "GOP finds an antidote to Schumer."
Posted at 23:12 by Howard Bashman



"Court Rules Against 1st Amendment Shield for Reporters": David G. Savage and James Rainey will have this article Wednesday in The Los Angeles Times.
Posted at 23:10 by Howard Bashman



In Wednesday's issue of The Washington Post: A front page article will report that "Two Reporters Told to Testify In Plame Case."

In other news, "ACLU Urges Investigation of Detainee Abuse."

And in news from London, "McDonald's Protesters Win in Court; European Panel Voids British Libel Ruling in Saga That Began in 1980s."
Posted at 23:05 by Howard Bashman



In Wednesday's edition of The New York Times: Adam Liptak will report that "Jailing of Reporters in C.I.A. Leak Case Is Upheld by Judges."

In other news, "Senate Unanimously Confirms Chertoff as Security Chief."

An article will report that "C.I.A. Is Seen as Seeking New Role on Detainees."

And in other news, "For Democrats, Rethinking Abortion Runs Risks."
Posted at 22:55 by Howard Bashman



"150 detainees freed; more expected soon; The Bush administration has begun to comply with last month's Supreme Court decision ordering the release of Mariel convicts in indefinite detention": This article appears today in The Miami Herald. And The Newark Star-Ledger reports today that "12 Cuban detainees released in Newark following court ruling."
Posted at 22:45 by Howard Bashman



Available online from law.com: An article reports that "Justices Asked to End Oregon Death Act; Bush administration looks to overturn 9th Circuit ruling, claims Controlled Substances Act pre-empts state law."

Jeff Chorney has articles headlined "9th Circuit: $10K 'Bet' Can't Settle E-Retailer Fight; Court declines to resolve question of where Internet companies should be sued" and "Calif. Supreme Court Chooses Not to Extend Privilege in Bing Crosby Case."

And in news from Georgia, Jonathan Ringel reports that "No X-Rated Phone Talk, Justice Told, Not Even on Valentine's Day." More information about this case can be accessed here via the web site of the Supreme Court of Georgia.
Posted at 22:40 by Howard Bashman



"Memo to Cooper and Miller: Fire Floyd Abrams. Hire Bruce Sanford." Online at Slate, Jack Shafer has this press box essay.
Posted at 20:11 by Howard Bashman



"Lawyer Spends a Million Dollars in Quest for a Verdict": The New York Times today contains this somewhat amusing article.
Posted at 20:00 by Howard Bashman



"Appeals Court Upholds Ruling in CIA Leak": This segment (RealPlayer required) appeared on this evening's broadcast of NPR's "All Things Considered."

And The New York Times provides this video segment (RealPlayer required) featuring Adam Liptak.
Posted at 19:50 by Howard Bashman



"Chertoff Confirmed as Homeland Security Chief": The Los Angeles Times provides this news update.
Posted at 19:45 by Howard Bashman



U.S. Court of Appeals for the Seventh Circuit defuses heated battle between Chicago-based U.S. District Judge and Chicago-based U.S. Attorney: Late last month, I noted here an article headlined "Legal battle pits U.S. attorney vs. judge" published in The Chicago Sun-Times and an article headlined "Judge's fight with Fitzgerald boils over; Prosecutor, aides face federal probe" published in The Chicago Tribune.

By means of a per curiam opinion issued today, a unanimous three-judge Seventh Circuit panel brought an end to the matter, ruling that the federal district judge was overstepping the bounds of his judicial role.

This was U.S. Attorney Patrick J. Fitzgerald's second big victory today. The first originated from the D.C. Circuit.
Posted at 19:44 by Howard Bashman



"Why torture issue hasn't had political traction: Abu Ghraib, Guantanamo don't bar Gonzales, Chertoff confirmations." Tom Curry, national affairs writer for MSNBC, has this report online today.
Posted at 17:40 by Howard Bashman



"Senate Confirms New Homeland Security Chief": Reuters reports here that "Federal judge Michael Chertoff, who testified against torture and preached the need to protect civil liberties, won Senate confirmation on Tuesday to head the U.S. Homeland Security Department." And Lara Jakes Jordan of The Associated Press reports that "Chertoff to Become Homeland Security Chief." The U.S. Senate's vote to confirm was 98-0.

I maintain fond memories of my lone oral argument appearance before Michael Chertoff during his very soon to be concluded tenure as a judge on the U.S. Court of Appeals for the Third Circuit.
Posted at 16:45 by Howard Bashman



On today's broadcast of NPR's "Day to Day": The broadcast contained segments entitled "Journalists Ordered to Testify in CIA Leak Case"; "Slate's Jurisprudence: Jackson's Celebrity Witnesses" (featuring Dahlia Lithwick); "Protecting Convicted Priests in Prison"; "Slate's Kausfiles: The Life of a Blogger"; and "To Blog or Not to Blog?"
Posted at 16:30 by Howard Bashman



"Has Affirmative Action Failed Black Law Students?" Online at LegalTimes.com tomorrow, Wednesday, February 16, 2005, from 1:30 p.m. to 3 p.m. EST, UCLA Law Professor Richard Sander will participate in a registration-free online chat "to discuss his recent study, which finds that affirmative action is causing black law students to get lower grades and pass the bar less often than their white peers."
Posted at 15:45 by Howard Bashman



"Senate Expected to Vote on Chertoff for Homeland Security Post": Today's broadcast of NPR's "Morning Edition" included this segment (RealPlayer required).
Posted at 15:00 by Howard Bashman



Another litigant learns, to his dismay, that FedEx is not the equivalent of the U.S. Postal Service: The U.S. Court of Appeals for the Federal Circuit issued this decision today.
Posted at 14:30 by Howard Bashman



"Court: Reporters Must Testify in CIA Leak Case." James Vicini of Reuters offers this updated report.

Adam Liptak of The New York Times has a news update headlined "Appeals Court Says Reporters Must Testify or Go to Jail."

The Washington Post offers a news update headlined "Reporters Must Testify in Plame Case, Court Rules."

The Los Angeles Times offers a news update headlined "Reporters Lose Appeal in CIA Leak Case."
Posted at 14:14 by Howard Bashman



Discussion of blogs and bloggers in today's D.C. Circuit decision involving the grand jury subpoenas of mainstream media reporters: Over at "The Volokh Conspiracy," Orin Kerr has collected the most noteworthy excerpts. You can access the complete ruling at this link.
Posted at 14:04 by Howard Bashman



eMootness: Today the U.S. Court of Appeals for the Ninth Circuit issued its en banc ruling in Gator.com Corp. v. L.L. Bean, Inc. The majority opinion, written by Circuit Judge Diarmuid F. O'Scannlain, begins:
We must decide whether a declaratory judgment action initiated to determine the legality of a software vendor's pop-up advertising program is rendered moot by a settlement under which the vendor permanently modified its software and the website owner relinquished all claims.
By a vote of 8-3, the en banc panel has ruled that the dispute is indeed moot. You can access the complete decision at this link.

The original three-judge panel's opinion, which involved an interesting question of personal jurisdiction that caused the case to go en banc, can be accessed here.
Posted at 12:55 by Howard Bashman



"Jackson Taken to Hospital, Delaying Jury Selection": The Los Angeles Times offers a news update that begins, "Michael Jackson was taken to a hospital emergency room this morning, forcing a delay in selecting a jury in his molestation trial."
Posted at 12:14 by Howard Bashman



"Jury begins deliberations in judge's libel suit against the Herald": This article appears today in The Boston Globe. And The Washington Post reports that "Judge's Libel Suit Against Newspaper Goes to Jury; Boston Herald Is Accused of a Smear Campaign."
Posted at 11:32 by Howard Bashman



"Appeals Court Upholds Ruling in CIA Leak": The Associated Press provides this report.
Posted at 11:10 by Howard Bashman



"Blog 'Til You Drop": That's the title of Howard Kurtz's "Media Notes" column today.
Posted at 11:00 by Howard Bashman



BREAKING NEWS -- U.S. Court of Appeals for the D.C. Circuit allows enforcement of subpoenas ordering grand jury testimony from New York Times and Time magazine reporters in the Valerie Plame CIA leak investigation: You can access today's ruling at this link.

The opening paragraph of the D.C. Circuit's opinion concludes:
The District Court held that neither the First Amendment nor the federal common law provides protection for journalists' confidential sources in the context of a grand jury investigation. For the reasons set forth below, we agree with the District Court that there is no First Amendment privilege protecting the evidence sought. We further conclude that if any such common law privilege exists, it is not absolute, and in this case has been overcome by the filings of the Special Counsel with the District Court. We further conclude that other assignments of error raised by appellants are without merit. We therefore affirm the decision of the District Court.
Aside from all the obvious reasons why this decision is noteworthy, it's not every day that a three-judge panel produces a decision consisting of four opinions.

In early press coverage, Reuters offers a report headlined "Court: Reporters Must Testify in CIA Leak Case."
Posted at 10:20 by Howard Bashman



"British Activists Hail Court Ruling in 'McLibel' Case": Reuters provides this report. The Associated Press offers a report headlined "Court: Activists Didn't Get Fair Trial" that begins, "Two British vegetarians convicted of defaming McDonald's Corp. did not receive a fair trial, the European Court of Human Rights ruled on Tuesday." And The Times of London offers a news update headlined "Human rights court finds in favour of McLibel Two."

You can access today's ruling of the European Court of Human Rights at this link and that court's press release at this link.
Posted at 09:45 by Howard Bashman



"Bush Legal Reform Agenda Faces Uphill Battle; Awaiting House Vote, Class-Action Suit Limits Would Have Limited Impact, Lawyers Say": Josh Gerstein has this article today in The New York Sun.
Posted at 09:24 by Howard Bashman



"Dems Threaten to 'Tantrum' Bush Nominees": "ScrappleFace" provides this report.

And today at National Review Online, Robert Moran has an essay entitled "The Cot Test: If Frist wants the presidency, he should push Bush's agenda through the Senate."
Posted at 09:10 by Howard Bashman



"Some alumni criticize JAG recruiting ban": The Yale Daily News contains this article today.

The Stanford Daily reports today that "Law School antidiscrimination policy upheld by court."

The University of Southern California Daily Trojan reports today that "Military garners protest of students; Law students protest military on-campus recruiters because of 'Don't Ask, Don't Tell' policy."

The Washington Square News reported yesterday that "Recruiter protests continue."

And The GW Hatchet yesterday contained an article headlined "Law students protest military's gay policy" and an editorial entitled "Don't ask, don't expel."
Posted at 07:20 by Howard Bashman



"Group presses for decision on cross; Mount Soledad hearing set March 8": This article appeared last Wednesday in The San Diego Union-Tribune.
Posted at 07:17 by Howard Bashman



"The Supreme Court Finally Steps Into The Fray Between Online File Swappers And The Major Movie And Recording Studios: The Case of MGM v. Grokster." FindLaw columnist Julie Hilden has this essay today.
Posted at 07:15 by Howard Bashman



"Committee OKs bill to bar death penalty for children": This article appears today in The Arkansas Democrat-Gazette.
Posted at 07:14 by Howard Bashman



"New AG vows to give his best; Gonzales draws praise during his public swearing-in ceremony": The Dallas Morning News contains this article today.

The Houston Chronicle reports that "Gonzales makes vow to 'confront injustice'; AG's ceremony used by Bush to urge Congress to address Patriot Act."

The San Antonio Express-News reports that "Bush lauds AG, pushes Patriot Act."

And The Washington Times reports that "Attorney General Gonzales sworn in."
Posted at 07:07 by Howard Bashman



In news from Michigan: The Associated Press offers a report headlined "AP Interview: Granholm changes stand on Ten Commandments."
Posted at 07:02 by Howard Bashman



"Sun's challenge of Ehrlich order is dismissed by a federal judge; Paper plans to appeal barring of 2 reporters": This article appears today in The Baltimore Sun.
Posted at 07:00 by Howard Bashman



"Immigrant death trial judge stays; Appeals court also rules against using two juries in truck driver's case": Harvey Rice has this article today in The Houston Chronicle.
Posted at 06:55 by Howard Bashman



"Bush Revives Candidacies for 20 Federal Judgeships; Democrats, advocacy groups say some of the judges are extremists; But plans to block their approval will meet a stronger Senate GOP": Henry Weinstein has this article today in The Los Angeles Times.

The Chicago Tribune reports that "Gonzales to help in judicial selection; Bush resubmits blocked nominees."

The Washington Times reports that "Bush resends judicial picks."

Newsday reports that "Judicial renominations reignite battle."

The Mobile Register reports that "Battle renewed: Bush again nominates Pryor for court."

Howard Mintz of The San Jose Mercury News reports that "Bush resubmits judicial nominees; Renewed partisan battle expected in U.S. Senate."

The Charlotte Observer reports that "Bush taps same N.C. judicial nominees; 3 were blocked from federal seats when Edwards was senator."

The News and Observer of Raleigh reports that "3 from N.C. on judicial list; Bush names nominees for court posts."

And The Newark Star-Ledger reports that "Bush, senators debate judgeship; Corzine and Lautenberg resist Sheridan, hold out for S. Jerseyan."
Posted at 06:33 by Howard Bashman



Monday, February 14, 2005
"U.S. Stands in Way of POWs' Compensation From Iraq": David G. Savage will have this article Tuesday in The Los Angeles Times.
Posted at 23:22 by Howard Bashman



"Bush Tries Luck Again With Judicial Nominees; 12 Candidates For Federal Courts Blocked in 1st Term": This article will appear Tuesday in The Washington Post. And Tuesday's edition of The New York Times will report that "Bush Renominates as Judges 7 Whom Democrats Blocked."
Posted at 23:20 by Howard Bashman



"Bush Renominates as Judges 7 Whom Democrats Blocked": This article will appear Tuesday in The New York Times.
Posted at 23:00 by Howard Bashman



"3rd Circuit Upholds Major Punitive Award": Online at law.com, Shannon P. Duffy offers this report on a ruling that the U.S. Court of Appeals for the Third Circuit issued today.
Posted at 22:40 by Howard Bashman



"Senate Expected to OK Chertoff Nomination": Lara Jakes Jordan of The Associated Press provides this report. The confirmation vote is scheduled to occur tomorrow.
Posted at 22:30 by Howard Bashman



"Bing Crosby Legal Privilege Ended in Death - Court": Reuters provides this report on today's unanimous ruling of the Supreme Court of California. The court's opinion begins, "At issue in this matter are 59 written communications pertaining to three recording contracts executed by the late Harry Lillis Crosby, the talented entertainer known to all as Bing Crosby."
Posted at 22:18 by Howard Bashman



"Bush Re-Submits Ultra-Conservative Nominees; PFAW Releases Nominee-by-Nominee Summary": The organization People For the American Way has issued this news release. The group's "Brief Summary of the Records of the Rejected Judicial Nominees" can be accessed here.
Posted at 21:02 by Howard Bashman



"Have a blog, lose your job? Workers with Web logs are everywhere, and they're starting to make corporate America very nervous." CNN/Money provides this report.
Posted at 21:00 by Howard Bashman



"Judge acts to dismiss Sun case against Ehrlich; In upholding ban against 2 journalists, he rules newspaper sought greater access to state officials than that accorded private citizen; Appeal vowed": The Baltimore Sun provides this news update. Today's ruling of the U.S. District Court for the District of Maryland can be viewed at this link.
Posted at 20:45 by Howard Bashman



"Court refuses to remove judge, orders trucker's trial to begin as soon as possible": Harvey Rice of The Houston Chronicle has a news update that begins, "A federal appeals court today refused the prosecution's request to remove the judge presiding over the trial of a truck driver accused in the deaths of 19 illegal immigrants."

Significantly, today's per curiam decision of the U.S. Court of Appeals for the Fifth Circuit grants mandamus in the federal government's favor and overturns the trial court's order that had provided for separate juries to decide whether the defendant is guilty and whether to sentence the defendant to death.
Posted at 20:10 by Howard Bashman



Available online from Slate: Timothy Noah's chatterbox column is headlined "Rehnquist Wasn't Deep Throat: The latest wild theory about Woodstein's blind source."

David Luban has a jurisprudence essay entitled "Selling Indulgences: The unmistakable parallel between Lynne Stewart and the president's torture lawyers."

And David Feige has a jurisprudence essay entitled "Radical Sheik: An elegy for radical lawyering."
Posted at 18:30 by Howard Bashman



"Lawsuits Spread in Over Penis Enlargement Claims": Reuters provides this report.
Posted at 18:28 by Howard Bashman



"Bush Sends Senate 20 Judicial Nominees": Jesse J. Holland of The Associated Press reports here that "President Bush on Monday sent the Senate 20 judicial nominees, including several who were blocked in his first term, signaling a new fight with Democrats." You can access today's nominations at this link.
Posted at 18:20 by Howard Bashman



"Should Senators End Filibuster of Nominees?" Today at Human Events Online, Manuel Miranda has an essay arguing "YES: GOP Has Unique Chance To End Democrat Obstructionism," while Michael Hammond counters "NO: Do Not Abandon Measure Once Used To Halt Liberal Agenda."
Posted at 10:05 by Howard Bashman



On Valentine's Day, two female law professors debate reckless sex: The subject of this week's "Debate Club" feature online at legalaffairs.org is "Can the law regulate reckless sex?" The participants in this week's discussion are Katherine Baker and Cheryl Hanna.
Posted at 10:00 by Howard Bashman



I thought it's only "judicial activism" if you don't like the result: Tomorrow the D.C. Lawyer Chapter of the American Constitution Society will host a program titled "Judicial Activism in English Common Law at the Time of the Founders." More details are available here at "ACSBlog."

The ACS program that I wish I were attending tomorrow is taking place at the UCLA School of Law, where Ninth Circuit Judge Stephen Reinhardt will speak on the topic "(Re)activism: Stripping the Federal Courts of Social Justice." According to a description found here (scroll down), "Judge Reinhardt plans to speak about proposed laws attempting to: strip the court's ability to hear certain issues such as the Pledge of Allegiance and gay marriage and eliminate lifetime appointments." Maybe during the question period someone will ask Judge Reinhardt about the controversy over the Ninth Circuit's Ten Commandments-containing seal.
Posted at 09:45 by Howard Bashman



In newz from New Zealand: The Associated Press reports that "New Zealand Court Rejects Woman's Appeal." And The New Zealand Press Association offers a report that begins, "Voluntary euthanasia campaigner Lesley Martin has lost her appeal against conviction for the attempted murder of her terminally ill mother."
Posted at 09:30 by Howard Bashman



"Learn English, Judge Tells Moms; A Tennessee jurist who has ordered mothers to take language lessons wins the praise of some locals but raises alarm among rights advocates": This article appears today in The Los Angeles Times. In earlier coverage, The Tennessean reported late last month that "Judge tells moms in custody cases to learn English."
Posted at 09:15 by Howard Bashman



"Justice Drops Emergency Contraception Guidelines": This segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition."
Posted at 09:05 by Howard Bashman



"Medical malpractice suit tinged with irony; Weeks before death, lawyer who once defended physicians sued doctor": This article appears today in The Indianapolis Star.
Posted at 08:25 by Howard Bashman



"High Court Candidate Is Man of Mystery": The New York Sun today contains an article that begins, "Larry Thompson appears on many lists as a potential appointee to a future vacancy on the Supreme Court, where he would be the second black justice, but he remains in many ways a man of mystery."
Posted at 06:40 by Howard Bashman



"2 women to head top state court": The Arizona Republic contains this article today.
Posted at 06:35 by Howard Bashman



"Frist has necessary votes to change filibuster rules": This article appears today in The Washington Times. You can access the complete transcript of that newspaper's interview with Senate Majority Leader Bill Frist, M.D. (R-TN) at this link.
Posted at 06:32 by Howard Bashman



Commentary available online from FindLaw: Michael C. Dorf has an essay entitled "New York Mayor Michael Bloomberg's Response to a Same-Sex Marriage Ruling: Should Executive Officials Defend Laws They Consider Unconstitutional?"

And Elaine Cassel has an essay entitled "The Lynne Stewart Guilty Verdict: Stretching the Definition of 'Terrorism' To Its Limits."
Posted at 06:25 by Howard Bashman



Sunday, February 13, 2005
In today's edition of The Houston Chronicle: The newspaper contains an article headlined "Experts question judge's ethics; They say a line was crossed when she intervened in an inmate's appeal."

Columnist Cragg Hines has an essay entitled "An update: What lawyers in terror cases can, can't do."

And Rev. Barry W. Lynn has an essay entitled "'Intelligent design' a way to smuggle Christianity into schoolrooms."
Posted at 23:50 by Howard Bashman



"One Year Later: Joy, gratitude mark anniversary of San Francisco's gay marriages." This article appears today in The San Francisco Chronicle, along with an article headlined "Married, With Child: S.F.'s gay-marriage moment changed one family's status, but not their commitment."

And The San Jose Mercury News today contains an article headlined "No retreat on gay vows."
Posted at 23:44 by Howard Bashman



"Indictments Stir Emotions in Asbestos-Riddled Mine Town; There's anger all around as W.R. Grace officials are charged with hiding deadly details for profit": Sam Howe Verhovek has this article today in The Los Angeles Times.
Posted at 23:40 by Howard Bashman



Drug-sniffing, home-sniffing dogs: Does a drug-sniffing dog's sniffing around your home give rise to more of a Fourth Amendment concern than a drug-sniffing dog's sniffing around your automobile? Lyle Denniston reports here at "SCOTUSblog" that the U.S. Supreme Court will soon have the chance to decide whether to decide that question.
Posted at 23:02 by Howard Bashman



"Bloggers as News Media Trophy Hunters": This article will appear Monday in The New York Times.
Posted at 22:50 by Howard Bashman



Available online from The New Yorker: The current issue of the magazine contains an article by Jane Mayer headlined "Outsourcing torture: The battle over 'extraordinary rendition.'" Available online only are an interview with Mayer and what the magazine describes as "a previously unreleased memo that was sent by William Taft IV, the State Department legal adviser, in which Taft dissents from other Administration legal analyses on the applicability--or the inapplicability--of the Geneva Convention for prisoners in the war on terror." Other related correspondence can be accessed via this link.
Posted at 22:12 by Howard Bashman



"Justice's Web site: Dissenting opinion." Columnist M. Charles Bakst has this essay today in The Providence Journal. You can visit the web site in question by clicking here.
Posted at 19:18 by Howard Bashman



Giant rat celebrates recent Sixth Circuit free speech victory: Thanks much to the reader who forwarded the link to this photo.
Posted at 17:50 by Howard Bashman



In the current issue of The Harvard Law Record: An article reports that "Yale wins court victory over military recruiting; Becomes second Ivy League school to ban on-campus military recruiting." The newspaper also contains a related editorial. And Lieutenant Jonathan Freimann has an op-ed entitled "JAGged edge in HLS policy."

Meanwhile, in other news, "HLS Democrats go to Washington" and "Fallon appointed to Ralph S. Tyler, Jr. Professorship of Constitutional Law; Lecture about judicially manageable standards is main focus of lecture by Fallon."
Posted at 17:40 by Howard Bashman



"At war with Gitmo grilling; Military counsel fought but lost": The New York Daily News contains this article today.
Posted at 17:38 by Howard Bashman



"Class-action suits reclassified; Final approval appears likely this week for a bill sending multiparty cases from state to federal court": This article will appear Monday in The Christian Science Monitor.
Posted at 17:35 by Howard Bashman



"Alabama would suffer under Gov. Roy Moore": Steven L. Taylor has this essay today in The Mobile Register.
Posted at 15:40 by Howard Bashman



"Readers blast coverage of judge": Today in The Akron Beacon Journal, the newspaper's public editor has an essay that begins, "When several readers criticized the recent coverage of an Ohio Supreme Court justice's drunken driving case, it illustrated once again the mystery that cloaks most newspapers."
Posted at 15:35 by Howard Bashman



"Jailed Cleric's Lawyer Guilty": Today's broadcast of NPR's "Weekend Edition - Sunday" included this segment (RealPlayer required).
Posted at 15:32 by Howard Bashman



"A Familiar Fight: From New London To Newark And Beyond, Residents Oppose Government's Use Of Eminent Domain." This article appears today in The Day of New London, Connecticut, along with a related article headlined "Similar Property Disputes Around The Nation."
Posted at 13:24 by Howard Bashman



"Rossello's push to lead Senate sparks rift; Puerto Rico's former gubernatorial hopeful wants the chamber's leader to step aside": The Orlando Sentinel contains this article today.
Posted at 13:22 by Howard Bashman



"The Man Who Shook The Ross Case; Making Tough Calls Is A Familiar Role For Judge Chatigny": This article appears today in The Day of New London, Connecticut.
Posted at 11:48 by Howard Bashman



"State justices ready to field lawsuit against Bears over foul ball injury": The Newark (N.J.) Star-Ledger contains this article today.
Posted at 11:45 by Howard Bashman



"Gay man takes custody fight across state line; A Virginia court has barred him and his partner from living together with his son": This article appears today in The Richmond Times-Dispatch.
Posted at 11:44 by Howard Bashman



"Damages sought in U-M case; A judge will decide if college must repay applicants rejected due to affirmative action": The Detroit News contains this article today.
Posted at 11:40 by Howard Bashman



"Judges left in confusion on sentencing; High court ruling could mean unfair, inconsistent punishments, critics warn; Courts muddle through change": This article appears today in The Baltimore Sun.
Posted at 11:30 by Howard Bashman



"Unenforceable racial covenants have lingering legacy": The Kansas City Star contains this article today, along with a related article headlined "Covenants' roots date to early 1900s; KC developer J.C. Nichols was among the first to utilize racially restrictive deeds."
Posted at 11:15 by Howard Bashman



"Supreme Court Justice enlightens crowd at CSUSB dedication": This editorial appears today in The Desert Sun of Palm Springs, California.
Posted at 11:02 by Howard Bashman



"Truck driver's attorney disputes emergency hearing": Today in The Houston Chronicle, Harvey Rice has an article that begins, "An attorney for a truck driver blamed in the deaths of 19 illegal immigrants says in court papers that federal prosecutors had no right to seek an emergency hearing on a ruling by the trial judge."

And The Washington Times reports today that "Prosecutors want judge off trial in aliens' deaths."
Posted at 10:55 by Howard Bashman



"Curing filibusters: It's time to play hardball with Senate obstructionists." The Free Lance–Star of Fredericksburg, Virginia contains this editorial today.
Posted at 08:40 by Howard Bashman



"Will Sen. Martin become a federal judge?" Columnist Fred Snowflack has this essay today in The Daily Record of Parsippany, New Jersey.
Posted at 08:38 by Howard Bashman



"Class action crackdown": This article will appear in the February 21, 2005 issue of U.S. News & World Report.
Posted at 08:35 by Howard Bashman



"For Blacks in Law School, Can Less Be More?" Adam Liptak has this article today in the Week in Review section of The New York Times. This graphic accompanies the article.
Posted at 08:33 by Howard Bashman



Saturday, February 12, 2005
"For Gay Couples, Anniversary Party; Unions' Legality Still Hotly Debated": This article will appear Sunday in The Washington Post.
Posted at 23:35 by Howard Bashman



"State appeals court tosses ex-coach's sex conviction": The Grand Rapids Press contains this article today. Thursday's unpublished ruling of the Michigan Court of Appeals can be accessed at this link.
Posted at 20:33 by Howard Bashman



"Neo-Nazis Aim to Upgrade PR; The National Alliance seeks a higher profile and more members with multimedia campaign": This article will appear Sunday in The Los Angeles Times.
Posted at 20:30 by Howard Bashman



In Sunday's edition of The New York Times: Neil A. Lewis will have an article headlined "Senate's New Math May Aid Stalled Judicial Nominees." The article incorrectly states that Eleventh Circuit Judge William H. Pryor, Jr.'s recess appointment recently expired; in fact, the recess appointment isn't scheduled to expire until the end of this year.

An article will report that "Number of Gays Discharged From Services Drops Again."

In other news, "Judge Considers Declassifying Sept. 11 Report on the F.B.I."

And in local news, "Bloomberg's Rivals Also Face a Test Over Gay Marriage."
Posted at 20:24 by Howard Bashman



"P-I, Times dispute goes before high court Tuesday": Yesterday's edition of The Seattle Post-Intelligencer contained an article that begins, "Washington state's highest court will hear arguments Tuesday on a critical point in a 22-month-old legal dispute between Seattle's two daily newspapers -- a dispute that could affect whether both papers continue publishing."
Posted at 15:28 by Howard Bashman



"AG backs legalizing same-sex marriage; Reilly says he'll oppose any constitutional ban": The Boston Globe contains this article today.
Posted at 15:25 by Howard Bashman



"Judge's latest ruling another setback for Schiavo's parents; A court upholds the 2000 order to have Terri Schiavo's feeding tube removed": This article appears today in The Orlando Sentinel.
Posted at 15:24 by Howard Bashman



"Measure approved to make abortion felony": The Associated Press provides this somewhat misleadingly headlined article from South Dakota.
Posted at 15:22 by Howard Bashman



"Area senators split on judicial confirmation": The Lawrence Journal-World today contains an article that begins, "Lawrence's two state senators are on opposites sides of a proposal to require Senate confirmation of Kansas Supreme Court justices."
Posted at 15:20 by Howard Bashman



"Swedish Hate-Speech Verdict Reversed; Sermon Condemning Homosexuals Ruled Not Covered by Law": This article appears today in The Washington Post.
Posted at 15:18 by Howard Bashman



"12-foot rat balloon ruled a legitimate labor protest": The Cincinnati Enquirer today contains an article that begins, "A 12-foot-tall inflatable rat scratched out another court victory Friday in Cincinnati." I first noted this ruling yesterday in a post you can access here.
Posted at 15:15 by Howard Bashman



"Ex-Detainee Says He Was Tortured": This lengthy article will appear Sunday in The New York Times.
Posted at 13:30 by Howard Bashman



Bob Egelko is reporting: Today in The San Francisco Chronicle, he has articles headlined "Gay law students riled by military recruiters; 'Don't ask, don't tell' seen as violating employer-bias rules" and "Debate on marriage at Hastings law school; Legal scholars split on underlying issues of parenting, privacy."
Posted at 10:30 by Howard Bashman



"A Dismal Class-Action Finale": The New York Times contains this editorial today.
Posted at 10:28 by Howard Bashman



"Symbol of faith gets a boost; Ten Commandments display is backed": This article appears today in The Detroit Free Press.

And The Miami Herald today contains an item headlined "Moseying into town: The Ten Commandments."
Posted at 10:24 by Howard Bashman



"O'Connor is right for court, country": The Dayton Daily News today contains an editorial that begins, "If Chief Justice William Rehnquist resigns, President George W. Bush should replace him with Justice Sandra Day O'Connor."
Posted at 10:22 by Howard Bashman



"Justice praises college campus; Anthony Kennedy dedicates a wing of the privately funded Cal State satellite": This article appears today in The Press-Enterprise of Riverside, California. And The Desert Sun reports today that "Justice speaks at dedication; Crowd welcomes Annenberg Wing to Palm Desert campus of CSUSB."
Posted at 10:10 by Howard Bashman



"Tell-all won't be hidden: Policy reversal will put the porn star's book with autobiographies": The Houston Chronicle today contains an article that begins, "In a reversal of an earlier decision, porn queen Jenna Jameson's autobiography will be placed on public shelves of the Houston Public Library once copies are returned by patrons who have the book checked out or are waiting for it."
Posted at 10:05 by Howard Bashman



Happy birthday! Senate Judiciary Committee Chair Arlen Specter (R-PA) turns 75 years old today.
Posted at 09:55 by Howard Bashman



"Former Judge Pickering joins Jackson law firm": The Associated Press provides this report.
Posted at 09:50 by Howard Bashman



Friday, February 11, 2005
"Class-Action Breakthrough": Forbes.com offers this article today. I've skimmed the new legislation, and it looks like Civil Procedure class in law school is about to become a whole lot more complicated.
Posted at 23:10 by Howard Bashman



In news from Orange County, California: The Los Angeles Times reports today that "Rape Accuser Again Cries Under Cross-Examination; 'Jane Doe,' challenged about inconsistencies in earlier statements, says she's 'frustrated' and 'confused,' prompting the judge to call a recess." Yesterday, the newspaper contained an article headlined "'I Don't Remember Anything,' O.C. Accuser in Gang-Rape Trial Testifies; 'Jane Doe' says she had passed out after drinking gin and didn't consent to sex."

The Orange County Register reports today that "Queries frustrate Haidl accuser; Defense questions are confusing, a crying 'Jane Doe' tells the rape-trial judge." And yesterday, the newspaper contained an article headlined "'Jane Doe' again takes stand; Accuser in Haidl gang-rape retrial starts crying when asked if she consented to sex acts on tape" and an essay by columnist Frank Mickadeit entitled "Haidl II feels like a sick version of 'The OC.'"
Posted at 23:02 by Howard Bashman



"Fewer Gays Being Discharged Since 9/11; 'Don't Ask' Ousters At Lowest Level Yet": This front page article will appear Saturday in The Washington Post.
Posted at 23:00 by Howard Bashman



"No Viable Defense": The Washington Post today contains an editorial that begins, "It does not often happen that the U.S. solicitor general refuses to defend an act of Congress."
Posted at 22:55 by Howard Bashman



"A Cautionary Tale Arguing for Freedom of Expression": The New York Times today reviews the newly released film "Inside Deep Throat."
Posted at 22:50 by Howard Bashman



"Newsom rips N.Y. mayor on gay marriage; Bloomberg to fight ruling allowing same-sex unions": This article appears today in The San Francisco Chronicle.
Posted at 22:45 by Howard Bashman



In Saturday's edition of The New York Times: An article will be headlined "Regretting the Bravado, a Convicted Lawyer Examines Her Options."

And in other news, "When Law Firms Collide, Things Sometimes Get Ugly."
Posted at 22:44 by Howard Bashman



"Judge Questions Gov't Response to Detainee": The Associated Press reports here that "Concerned about government secrecy in a terrorism case, a federal judge expressed skepticism Friday at the Bush administration's request to dismiss a lawsuit on behalf of a Virginia man held in Saudi Arabia." Last week, The Washington Post published an article headlined "U.S. Asks Saudi Arabia to Indict Or Return Terrorism Suspect" that previewed today's hearing.
Posted at 22:40 by Howard Bashman



"Law Prof Proposes Supreme Court Term Limits": This article appears today in The Cornell Daily Sun.
Posted at 22:38 by Howard Bashman



"Rules set for death row claims; The state high court says inmates can try to prove retardation": Claire Cooper, legal affairs writer for The Sacramento Bee, has this article today.
Posted at 22:35 by Howard Bashman



Available online from law.com: Tony Mauro reports that "Blackmun Papers Provide Glimpse of the High Court in Song."

And in other news, "Calif. Supreme Court Applies Retardation Criteria to Death Row Inmates."
Posted at 22:24 by Howard Bashman



"U.S. Supreme Court and the Ten Commandments": That's the title of this week's cover story on the PBS program "Religion & Ethics NewsWeekly." You can view the segment by clicking here (RealPlayer required), and you can access the segment's transcript at this link.
Posted at 19:30 by Howard Bashman



"How to Silence a Racket: The Justice Department's tobacco lawsuit threatens freedom of speech." Jacob Sullum has this essay online at Reason.
Posted at 17:20 by Howard Bashman



"Tackling Tort Reform: President Bush is on his way to the first major legislative victory of his new term." George L. Priest has this essay today at National Review Online.
Posted at 17:05 by Howard Bashman



This jury will eat the evidence: Today's broadcast of NPR's "Day to Day" contained a segment entitled "From Sweet to Sour: Splenda, Sugar Battle in Court" (RealPlayer required).
Posted at 17:00 by Howard Bashman



Senior Third Circuit Judge Max Rosenn celebrated his 95th birthday last Friday: Happy belated birthday to Judge Rosenn, who is still hearing appeals and writing opinions. The U.S. Courts' publication "The Third Branch" contained this profile (second item) of Judge Rosenn on the occasion of his 90th birthday five years ago.
Posted at 16:30 by Howard Bashman



Would you fancy a spot of hallucinogenic tea with that? Thanks to "SCOTUSblog," you can access online at this link the federal government's petition for writ of certiorari filed in the Hoasca Tea RFRA Case.
Posted at 15:22 by Howard Bashman



"Suit Filed for 500 Guantanamo Detainees": The Associated Press provides this report.
Posted at 15:14 by Howard Bashman



"We acknowledge a significant division among the circuits on this issue, with no clear majority rule and at least three distinct approaches." Today, Seventh Circuit Judge Diane S. Sykes issued an opinion on behalf of a unanimous three-judge panel that begins, "All crack is cocaine base but not all cocaine base is crack. This case presents the question of whether this distinction is meaningful for purposes of the enhanced penalties for cocaine base offenses" under federal criminal law.

Her opinion concludes with a paragraph that begins, "A lingering and stratified circuit split on a matter of such importance to the administration of criminal justice surely warrants the attention of Congress or resolution by the Supreme Court."
Posted at 15:11 by Howard Bashman



"Swedish Court Clears Anti-Gay Priest": Reuters provides this report. And The Associated Press reports that "Swedish Pastor Is Acquitted on Appeal." The Becket Fund for Religious Liberty filed this amicus brief in the case.
Posted at 15:03 by Howard Bashman



Let's get metaphysical: Today a three-judge panel of the U.S. Court of Appeals for the Third Circuit issued a decision in which one of the judges wrote what the decision refers to as the "Opinion of the Court." Meanwhile, a second judge on the panel wrote a concurring opinion, in which the third judge on the panel joined. That concurring opinion begins:
I concur and join in the opinion of the Court, with the exception of Parts III.B.1, III.B.3, and III.C.
What's wrong with this picture?
Posted at 14:50 by Howard Bashman



May your federal appellate decision not be lacking in circumcision humor: Ninth Circuit Judge Alex Kozinski, in his concurring opinion noted in the post immediately below, asks rhetorically, "Are mohels to be cut off from the ministerial exception altogether?"
Posted at 14:40 by Howard Bashman



Over three published dissents, U.S. Court of Appeals for the Ninth Circuit denies rehearing en banc in church-related sexual harassment suit: The dissent by Circuit Judge Andrew J. Kleinfeld, in which three other Ninth Circuit judges joined, begins:
For the one of every five Americans who live in our circuit's jurisdiction, the "wall of separation" between church and state now has a gate. The gate is one-way. The government may pass through to regulate the internal affairs of a church, but the church must remain on its own side.
Circuit Judge Alex Kozinski issued an opinion concurring in the denial of rehearing en banc, in which he observes that "I oppose killing archbishops, either directly or softly with lawsuits."

Today's order denying rehearing en banc, accompanied by two concurring opinions and three dissents, is available at this link. The original decision by a divided three-judge Ninth Circuit panel can be accessed here. In earlier coverage of that original decision, Bob Egelko of The San Francisco Chronicle had an article headlined "Part of church-related harass suit reinstated; Ex-minister says she was blacklisted after accusing colleague."
Posted at 13:00 by Howard Bashman



"Death Row Retardation Rules Questioned": David Kravets of The Associated Press provides this report.
Posted at 12:20 by Howard Bashman



"Mass. Court Will Hear Arguments on Its Homosexual Marriage Decision": CNSNews.com today provides an article that begins, "Opponents of same-sex marriage call it an unexpected and remarkable move: The Massachusetts Supreme Judicial Court has agreed to hear oral arguments on a request to block the ruling that legalized same-sex marriage in the commonwealth."

In somewhat related news, The Boston Globe reported yesterday that "Senate boss plans to delay gay marriage vote."
Posted at 10:55 by Howard Bashman



The First Amendment protects a labor union's use of an inflatable rat balloon during a demonstration on a public right-of-way: So a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit has ruled in a decision issued today.
Posted at 10:42 by Howard Bashman



"Sharper Image to Pay Consumer Reports": David Kravets of The Associated Press provides this report.
Posted at 10:35 by Howard Bashman



"Lawyer Found Guilty in Aiding Terrorist Client": This segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition."

In other coverage, The New York Sun reports today that "Stewart Is Guilty of Aiding Terror in Landmark Case."

The New York Post reports that "Jury nails terror traitor."

The New York Daily News contains an article headlined "Terror helper: Radical lawyer convicted of aiding jailed sheik."

Newsday reports that "Rights lawyer convicted of helping terrorists."

The Los Angeles Times reports that "Lawyer Guilty of Aiding Terrorists; Lynne F. Stewart had been accused of giving a jailed cleric a message from an overseas dissident; Two others also are convicted."

The New York Times contains articles headlined "Lawyers Take Uneasy Look at the Future" and "Stewart's Case Log: Revolutionaries, Hit Men, the Poor and the Obscure."

And The Associated Press reports that "Lawyer to Appeal Terrorism Conviction."
Posted at 10:30 by Howard Bashman



"Notwithstanding what some may say, appellate judges are not fungible automatons." So begins this month's installment of my monthly appellate column, which will appear on Monday, February 14, 2005 in The Legal Intelligencer. The column focuses on the strategic recusal of appellate judges, a subject that a new interim Second Circuit local rule has caused me to ponder. I previously discussed that interim rule in a post you can access here. An archive containing nearly all of my appellate columns published in The Legal Intelligencer can be accessed via this link.
Posted at 10:20 by Howard Bashman



"Looking for a Few Good ... Well, Anyone; Military recruiters at USC law school find prospects are MIA; Some who do show up protest the federal 'don't ask, don't tell' policy": The Los Angeles Times contains this article today.

The Washington Square News reported yesterday that "Military returns for second time, despite protests." That newspaper yesterday also contained an op-ed by Jason Rowe entitled "NYU: Sever all military ties" and an op-ed by Jonathan Cipriani entitled "Let JAG recruiters on our campus."

Also yesterday, The Washington Times contained an op-ed by Herbert London entitled "Solomon edict fallout."
Posted at 07:30 by Howard Bashman



"ABA study says system failing poor defendants; Report urges better training and funding of lawyers": This article appears today in The Houston Chronicle.
Posted at 07:28 by Howard Bashman



"Inmates Can Appeal Based on Their IQ; State justices define mental disability, giving dozens on death row a chance for life terms": Maura Dolan has this article today in The Los Angeles Times.

In The San Francisco Chronicle, Bob Egelko has an article headlined "Judging if a killer is retarded: State's justices set framework on executions."

And Howard Mintz of The San Jose Mercury News reports that "Retarded inmates may get reprieve; Those on death row entitled to hearing, state court says."
Posted at 07:25 by Howard Bashman



"Ohio soon may offer 'One Nation Under God' license plate": The Toledo Blade contains this article today.
Posted at 07:24 by Howard Bashman



"Multitalented chief justice hits the Web; Visitors to frankjwilliams.com may book him as a speaker, or learn a tasty recipe": This article appeared yesterday in The Providence (R.I.) Journal.
Posted at 07:22 by Howard Bashman



"Yahoo getting new hearing on posting Nazi items; French court says sales in violation of antiracism law": Bob Egelko has this article today in The San Francisco Chronicle. And today in The San Jose Mercury News, Howard Mintz reports that "Yahoo case on Nazi items to be reheard; French groups won 2000 suit over online sales."
Posted at 07:15 by Howard Bashman



Seals and Cross: The Los Angeles Daily News today contains an article headlined "Cross backers say they'll meet signature quota" that begins, "A petition drive for a ballot measure to restore the cross on Los Angeles County's official seal appears likely to collect enough signatures by the March 1 deadline, organizers said Thursday."
Posted at 07:11 by Howard Bashman



In news regarding Connecticut's death penalty volunteer: Today in The Hartford Courant, Lynne Tuohy reports that "Execution Set For May 11; Paulding And Court-Appointed Lawyer Will Argue Killer's Opposing Interests." And an article is headlined "A Different Challenge: Ross Case A New Test Of Corporate Lawyer's Versatility."
Posted at 07:10 by Howard Bashman



"Senate OKs Class-Action Suit Limits; Republicans hope the measure, which won bipartisan approval, builds momentum for their agenda; Foes call it an 'anti-consumer' bill": The Los Angeles Times contains this article today.

The Washington Times reports that "Senate OKs tort reform measure."

The St. Louis Post-Dispatch reports that "Senate approves bill to shift most class-action suits to federal courts."

The Hartford Courant reports that "Senate OKs Bill Limiting Lawsuits; Dodd Helps Bush Score A Victory."

And The Orlando Sentinel reports that "Senate votes to limit class-action lawsuits."
Posted at 07:00 by Howard Bashman



"Chertoff nomination hits a delay": This article appears today in The Newark Star-Ledger.
Posted at 06:52 by Howard Bashman



"Virginia's Bizarre Claim to the Supreme Court: Asserting that the Establishment Clause Does Not Constrain the States." FindLaw columnist Marci Hamilton has this essay today.
Posted at 06:50 by Howard Bashman



"Droopy drawers law takes a hike; After global mirth, committee kills bill on breeches of etiquette": The Richmond Times-Dispatch contains this article today.
Posted at 06:42 by Howard Bashman



Thursday, February 10, 2005
"Senate Approves Measure to Curb Big Class Actions": This article will appear Friday in The New York Times.

Friday's edition of The Washington Post will report that "Class-Action Bill Near Enactment; House Action, Bush Signature Set to Follow Senate Passage."

Financial Times reports that "Class action suits lead legal reform agenda."

Friday's edition of The Minneapolis Star-Tribune will report that "Senate approves limits on class-action lawsuits."

And Friday's issue of The Orlando Sentinel will report that "Senate votes to limit class-action lawsuits."
Posted at 23:04 by Howard Bashman



In Friday's edition of The Washington Post: A front page article will be headlined "Activist N.Y. Lawyer Convicted Of Smuggling Sheik's Message."

Another front page article will carry the headline "Free Expression Can Be Costly When Bloggers Bad-Mouth Jobs."

And an article will report that "Tighter Bankruptcy Law Favored; Bills Making It Harder to Erase Debt Set to Clear Congress."
Posted at 22:44 by Howard Bashman



Thanks much, law.com! Among the articles available online tonight from law.com are Jonathan Ringel's article headlined "One Year Later: Pryor's Record on 11th Circuit" and Jeff Chorney's article headlined "Trying for a 9th Circuit Split: Emboldened by a successful spit proposal in October, GOP lawmakers make preparations."

In other news, "9th Circuit Maps Path for Cases Involving Sentencing Issues."

An article reports that "N.Y. Lawyer Lynne Stewart Convicted of Helping Terrorists."

Finally, Dahlia Lithwick has an essay entitled "High Court Ethereality: The nation's high court won't let cameras in its courtroom, but the justices can't stop bloggers from training their powers of demystification on the institution," which if you can't access here you can definitely access here.
Posted at 22:33 by Howard Bashman



In Friday's edition of The New York Times: The newspaper will contain articles headlined "Lawyer Is Guilty of Aiding Terror" and "Death Penalty Seems Unlikely to Be Revived."
Posted at 22:02 by Howard Bashman



Virginia to butt out of trouser regulations; In the end, proposal to crack down on low-rider pants runs out of gas: The Richmond Times-Dispatch provides a news update headlined "Low-rider pants bill killed."
Posted at 21:54 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "White House Seeks Ban on Religious Tea"; "Yahoo Sees Small Victory in Nazi Dispute"; and "Bankruptcy Overhaul Legislation Advances."
Posted at 20:50 by Howard Bashman



News updates available online from The Los Angeles Times: Maura Dolan reports that "Court Clears Way for Death Row Challenges for Retarded; A unanimous California Supreme Court rejects IQ level and sets a standard more lenient than prosecutors had wanted."

And in other news, "Senate Approves Class Action Bill; Measure would move large, multi-state lawsuits from state to federal court, where judges tend to be more favorable to business."
Posted at 20:42 by Howard Bashman



"Civil Rights Lawyer Is Convicted of Aiding Terrorists": The New York Times provides this news update.

And this evening's broadcast of NPR's "All Things Considered" contained a segment entitled "Jury Convicts Defense Attorney of Aiding Terrorists" (RealPlayer required).
Posted at 20:24 by Howard Bashman



"Chertoff Vote Delayed Over FBI Memo Spat": Lara Jakes Jordan of The Associated Press provides this report. The confirmation vote is now scheduled to occur next Tuesday in the U.S. Senate.
Posted at 20:20 by Howard Bashman



"Stupidity as a Firing Offense: Why is Bill O'Reilly chairing our faculty meetings?" Slate has just posted online this jurisprudence essay by Dahlia Lithwick.
Posted at 17:54 by Howard Bashman



Not the verdict attorney Lynne F. Stewart was hoping for: The Associated Press reports that "Lawyer Convicted of Helping Terrorists."
Posted at 16:40 by Howard Bashman



"Data: Judges Adhere to Sentence Guidelines." The Associated Press provides this report.
Posted at 16:35 by Howard Bashman



"Senate OKs Limit on Class Action Lawsuits": Jesse J. Holland of The AP provides this report. And Reuters reports that "Senate Backs Bill Curbing Class-Action Suits." The measure passed by a vote of 72-26. The text of the legislation can be accessed at this link.
Posted at 16:33 by Howard Bashman



"In a Surprise, E&P Voters Pick Rehnquist as 'Deep Throat'": The web site of Editor & Publisher provides this report. Over at the "Begging The Question" blog, "Milbarge" is not persuaded.
Posted at 16:30 by Howard Bashman



The wire services are reporting: Reuters reports that "U.S. court to reconsider Yahoo appeal in Nazi row" and "Senate Poised to Pass Class Action Suit Curbs."

Meanwhile, The Associated Press reports that "Girls Get Donations in Colo. Cookie Case."
Posted at 14:40 by Howard Bashman



Supreme Court of California issues important ruling regarding the death penalty and mental retardation: Justice Janice Rogers Brown wrote today's opinion of the court.
Posted at 14:32 by Howard Bashman



U.S. Court of Appeals for the Ninth Circuit grants rehearing en banc in Yahoo! Nazi paraphernalia case involving France: Today's order granting rehearing en banc is available at this link. The now-vacated decision that a divided three-judge Ninth Circuit panel issued in August 2004 can be viewed at this link. Although that decision issued while I was on vacation, I noted it here on my return, observing that Jeff Chorney of law.com had an article headlined "On Appeal, Anti-Nazi Groups Topple Yahoo; Dissent would have granted jurisdiction."
Posted at 12:50 by Howard Bashman



"Republicans Ask for Changes to Asbestos Plan": Reuters provides this report.
Posted at 12:45 by Howard Bashman



"The Art of Stealth: Bruce Ackerman on the Supreme Court." This quite lengthy article appears in the February 17, 2005 issue of the London Review of Books. (Via "Balkinization.")
Posted at 12:20 by Howard Bashman



"Senate Nears Vote on Class Action Lawsuits": Jesse J. Holland of The Associated Press provides this report.
Posted at 12:15 by Howard Bashman



"Trying for a Split - GOP lawmakers Prepare for Another Run at the Ninth Circuit": Jeff Chorney of The Recorder has this article today. Sadly, the article is currently subscription only, but perhaps it'll miraculously appear free of subscription requirements tonight on law.com (together with the article about Judge Pryor previously noted here, hint, hint).
Posted at 12:00 by Howard Bashman



"Evolution in the Blackboard Jungle: An intelligent design for a solution to the debate." Ronald Bailey has this essay online at Reason.
Posted at 11:55 by Howard Bashman



"'Extreme' judicial activism": U.S. Senators Orrin G. Hatch (R-UT) and Sam Brownback (R-KS) have this op-ed in today's issue of The Washington Times.
Posted at 11:45 by Howard Bashman



Under God, under bumper: The Dayton Daily News reports today that "Bill would add 'Under God' to auto plates."
Posted at 11:42 by Howard Bashman



"Polanski to Sue Via Videolink in Legal Landmark": Reuters reports here that "Legal precedent will be set when film director Roman Polanski gives evidence in an English court via videolink from a Paris hotel room in order to avoid the risk of extradition to the United States for a child sex offence." You can access today's ruling of the House of Lords via this link (click "continue" as needed at the bottom of each page to access the entire ruling).
Posted at 10:15 by Howard Bashman



"Jurors make a $1.8-billion mistake": Law Professor Ann Althouse discusses this article published today in The Los Angeles Times.
Posted at 10:08 by Howard Bashman



"Canadian Was Abused at Guantanamo, Lawyers Say": Neil A. Lewis has this article today in The New York Times.
Posted at 10:05 by Howard Bashman



The Associated Press is reporting: An article headlined "Lawsuit Over HIV Test Results Gets OK" reports on this decision that the U.S. Court of Appeals for the Tenth Circuit issued yesterday.

And in other news, "Appeals Court Questions Jackson Lawyers."
Posted at 10:01 by Howard Bashman



"Mother chooses sterilization over murder trial": This article appears today in The Atlanta Journal-Constitution.
Posted at 09:55 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": This morning's broadcast contained segments entitled "Senate Ponders Bill on Class Action Lawsuits"; "U.S. Defends Secret Evidence in Detaining American" (featuring Nina Totenberg); and "Antiquated Slander Rule Reconsidered." RealPlayer is required to launch these audio segments.
Posted at 09:32 by Howard Bashman



"Battle brewing over devilish stickers": The Clovis News Journal contains this article today.
Posted at 07:33 by Howard Bashman



"Senate Nears Revision of Class Actions; Passage of Legislation Backed by Bush and Business Appears Certain": This article appears today in The Washington Post.

The Los Angeles Times reports that "President Pushes to Limit Class-Action Suits; Bush asks Congress to move quickly on a bill that would shift most such claims to federal courts, which are seen as friendlier to business."

And The Houston Chronicle reports that "Bush says lawsuit limits help economy; But critics point to similar reforms in Texas they say hurt consumers."
Posted at 07:30 by Howard Bashman



"Legal crusader wins revenge from B.C. court; Provincial sales tax on lawyers' fees discriminates against poor, judge rules": The Toronto Globe & Mail contains this article today.
Posted at 07:28 by Howard Bashman



"Victim's Family Angered by Speech; Site and timing of actor's anti-death-penalty remarks offend parents of the Chino Hills boy whom Kevin Cooper was convicted of killing": This article appears today in The Los Angeles Times.
Posted at 07:25 by Howard Bashman



"Ross' Lawyer Likely To Stay; Paulding's Role Has Experts At Odds": Lynne Tuohy has this article today in The Hartford Courant.
Posted at 07:20 by Howard Bashman



In news from Boston: The Boston Globe today contains articles headlined "Romney focuses on bench choices; Vows to appoint women, minorities" and "SCJ upholds $2.1m jury award in Globe libel case; Appeal possible, newspaper says."

And The Boston Herald reports today that "Dana doc's libel award is cut."
Posted at 07:15 by Howard Bashman



"Inmate fights death a 4th time; One of Florida's longest-surviving Death Row inmates is trying for the fourth time to successfully avoid execution": This article appears today in The Miami Herald.
Posted at 07:12 by Howard Bashman



"Death row population is graying": USA Today contains this article today.
Posted at 07:10 by Howard Bashman



"Bankruptcy bill could turn on abortion issue": Newsday contains this article today.
Posted at 07:05 by Howard Bashman



"Sweeping Review of Sentences Ordered; Hundreds of inmates are affected by ruling that lifts mandatory terms, U.S. 9th Circuit finds": Henry Weinstein has this article today in The Los Angeles Times.
Posted at 07:00 by Howard Bashman



Wednesday, February 09, 2005
"The 'Nuclear Option': The right's all-out attack on the filibuster could pave the way for extremist nominees to the Supreme Court." Ralph G. Neas of People For the American Way has this essay online today at AlterNet.
Posted at 23:50 by Howard Bashman



"Condemned killer's stay stretches on": The San Bernardino County Sun today contains an article that begins, "One year ago tonight, Kevin Cooper was to be executed for one of the bloodiest mass murders in San Bernardino County history."
Posted at 23:44 by Howard Bashman



"School boards may ditch 'prayer'; They may open meetings with neutral 'remarks'": This article appears today in The Deseret Morning News.
Posted at 23:40 by Howard Bashman



"Singing public defender barred; The Bettendorf lawyer once warbled her closing argument, court officials say; her competency is questioned": The Des Moines Register contains this article today.
Posted at 23:35 by Howard Bashman



Shouldn't she be building an appellate practice? The Daily Pennsylvanian reports today that "Law prof urges steady view of Constitution."
Posted at 23:33 by Howard Bashman



If only the prosecution were pending in federal court in Pittsburgh: The Toronto Globe & Mail reports today that "Man appeals convictions for Web films; Material depicts naked women being shot, stabbed; lawyer argues it's not obscene."
Posted at 23:32 by Howard Bashman



In Thursday's edition of The New York Times: An article reports that "Trials of Hussein's Top 11 Aides to Start Within Weeks."

In other news, "Bush Holds Event to Back Curbs on Class-Action Lawsuits."

An article reports that "Lawyers' Groups File Brief Supporting Quattrone Appeal."

And in regional news, "Judges' Data? The Objections Are Overruled."
Posted at 23:30 by Howard Bashman



"Senators back confirmation of court justices": The Topeka Capital-Journal today contains an article that begins, "Twenty-six Republicans and two Democrats in the Senate signed on today to a proposed constitutional amendment requiring Senate confirmation of nominees to the Kansas Supreme Court."
Posted at 23:22 by Howard Bashman



"Three Miss. death row cases under review by U.S. Supreme Court": The Associated Press provides this report.
Posted at 23:20 by Howard Bashman



Available online from law.com: An article reports that "Pivotal Patent Case Hits Federal Circuit."

In other news, "2nd Circuit Upholds Ruling That 'Considered' Guideline Range."

And an article reports that "Lawyer Wins Defamation Suit Over Performance Review Claims."
Posted at 23:15 by Howard Bashman



The Associated Press is reporting: An article headlined "Newspaper to Pay $2M in Defamation Case" reports on this ruling that the Supreme Judicial Court of Massachusetts issued today.

And in other news, "Senate Dodges Move to Change Lawsuit Bill"; "Court Is Asked to Settle Detainee Rulings"; and "Appeals Court Weighs Jackson Case Secrecy."
Posted at 23:05 by Howard Bashman



"Judge Rules Fertilized Egg Was a Human Being": This segment (RealPlayer required) appeared on this evening's broadcast of NPR's "All Things Considered."
Posted at 22:50 by Howard Bashman



"The Plain Meaning of Torture? Literary deconstruction and the Bush administration's legal reasoning." Slate has just posted online this jurisprudence essay by Peter Brooks.
Posted at 17:15 by Howard Bashman



"Our case, however, is not your typical WARN Act fare as it involves hot-button topics like 'Enron,' 'document shredding,' and 'indictment.'" A divided three-judge panel of the U.S. Court of Appeals for the Seventh Circuit today decided whether Arthur Andersen LLP's failure to comply with the WARN Act's requirement of 60 days' advance notice of mass layoffs was excused because the layoffs were "caused by business circumstances that were not reasonably foreseeable as of the time that notice would have been required." Circuit Judge Terence T. Evans wrote the majority opinion. You can access the complete ruling at this link.
Posted at 17:04 by Howard Bashman



"Lawyer Jokes Still Legal in New York": This segment (RealPlayer required) appeared on today's broadcast of NPR's "Day to Day."
Posted at 16:40 by Howard Bashman



Reverse psychology? Regarding the Ten Commandments lawsuit against the Ninth Circuit, a reader emails:
Do you suppose it possible that the plaintiff is actually a supporter of public display of the Ten Commandments, and that he has picked the most ridiculous example possible to demonstrate the irrationality of some of the cases prohibiting the same?
I guess anything is possible, but the article about the lawsuit published today in the Daily Journal suggests that the plaintiff is quite sincere.

By the way, I've again updated my post below listing some suggestions from clever readers as to how the Ninth Circuit might defend the case.
Posted at 16:20 by Howard Bashman



"Judge Bill Pryor featured in Fulton County Daily Report": "Feddie" over at the blog "Southern Appeal" offers liberal quotations (sorry, couldn't resist the pun) from an article published today in the Fulton County Daily Report.
Posted at 15:00 by Howard Bashman



Too funny -- Even Michael Newdow questions the wisdom of the lawsuit challenging the image of the Ten Commandments contained in the Ninth Circuit's official seal: Today in the Daily Journal, Peter Blumberg has a quite interesting article headlined "9th Circuit, Ten Commandments: A Lawyer Sues Over What He Sees as a Religious Symbol in The Court's Seal."
Posted at 14:45 by Howard Bashman



Smarter minds weigh in on Dummer name controversy: The Boston Globe reports today that "Dummer Academy trustees to rethink name change." My earlier post on this subject was titled "Students seeking to get more stupider should apply elsewhere."
Posted at 14:40 by Howard Bashman



The St. Petersburg Times is reporting: The newspaper today contains an article headlined "Legal 'Odd Couple' formidable in court; One is a measured detail man; the other, an eloquent people person; Together, they won a $15-million settlement from Dillard's."

And in the category of oldie but previously overlooked goodie, on January 26, 2005 the newspaper reported that "Killer talks through tape at sentencing; A judge brings a belligerent prisoner back to court, duct tapes his mouth and re-sentences him."
Posted at 14:30 by Howard Bashman



"Courts Oppose Class Action Suit Plans": Jesse J. Holland of The Associated Press provides this report.
Posted at 14:25 by Howard Bashman



The Rock and Roll Hall of Fame and Museum asserts Jewish web site's name isn't kosher: Reuters reports that "Rock Museum Sues to Stop Jewish Rock Web Site."
Posted at 14:15 by Howard Bashman



Appellate fungus: Mushrooms are on the menu today at the U.S. Court of Appeals for the Federal Circuit. Today's ruling, which involves allegations of mushroom dumping, can be accessed here.
Posted at 14:14 by Howard Bashman



U.S. Court of Appeals for the Ninth Circuit issues Booker federal sentencing guidelines plain error ruling: Today's ruling can be accessed at this link.
Posted at 13:00 by Howard Bashman



Time for today's installment of "That's not the Ten Commandments on the Ninth Circuit's seal; rather, it's ...": Because I've been unsuccessful so far in obtaining a copy of the pro se complaint challenging the inclusion of what appears to be an image of the Ten Commandments on the Ninth Circuit's official seal, I've been relegated to trying to think up creative defenses the Ninth Circuit could employ in the lawsuit, first reported on here in yesterday's issue of The San Francisco Chronicle.

Here are two possibilities:
  • That's not the Ten Commandments; rather, it's a list of ten surefire ways to avoid reversal by the U.S. Supreme Court, only no one can read the fine print because it's too small; and
  • That's not the Ten Commandments; rather, it's a list of the nine States in the circuit plus an additional entry for all the Territories.
Readers who have actually funny variations (as compared to my two rather lame attempts at humor, above) are invited to share them via email for possible posting online here.

Update: Here are some reader submissions:
  • That's not the Ten Commandments; rather, they're the tombstones of the last two litigants who sued the Ninth Circuit;
  • That's not the Ten Commandments; rather, it's the Bill of Rights;
  • That's not the Ten Commandments; rather, it's David Letterman's list of the top ten reasons to divide the circuit; and
  • That's not the Ten Commandments; rather, it's a list of which Ninth Circuit cases the U.S. Supreme Court is most likely to reverse this Term.
Thanks to all the readers who have responded, and feel free to keep 'em coming.
Posted at 12:20 by Howard Bashman



"Tobacco Sideshow": This editorial appears today in The Washington Post.
Posted at 10:45 by Howard Bashman



"Saddam war crimes trial nears next stage": Reuters provides this report.
Posted at 10:10 by Howard Bashman



"Scolded Lawyer in Gang-Rape Case to Resume; An opening statement will continue after the O.C. judge warns about violating procedure": Claire Luna has this article today in The Los Angeles Times. And The Orange County Register reports today that "Haidl defense attorney gets second chance; Lawyer to continue opening statement today after apologizing for mentioning accuser's sexual history."
Posted at 09:58 by Howard Bashman



"Chertoff's nomination remains at standstill; Senate panelist seeks facts on Gitmo memo": This article appears today in The Star-Ledger of Newark, New Jersey.
Posted at 09:55 by Howard Bashman



"Important Job, Impossible Position": Seventh Circuit Judge Richard A. Posner has this op-ed today in The New York Times.
Posted at 09:44 by Howard Bashman



"Case against man who told lawyer joke is tossed": Newsday contains this article today.

In other coverage, The New York Post today contains an article headlined "Good 'Gag' Rule." And The Globe and Mail of Toronto reports that "Long Island men get last laugh on humourless lawyers."
Posted at 07:44 by Howard Bashman



"Out-of-state lawyers make their case; The Florida Supreme Court will hear arguments on rules that could place tougher limits on out-of-state lawyers": This article appears today in The Miami Herald.
Posted at 07:40 by Howard Bashman



"Board dismisses complaint against justice": The Times Argus today contains an article that begins, "The state's Judicial Conduct Board on Tuesday dismissed an ethics complaint against Vermont Supreme Court Justice John Dooley, a ruling that likely will save the 17-year bench veteran his job."
Posted at 07:38 by Howard Bashman



"Don't turn back the clock on racial preferences in college": John Carlson has this op-ed today in The Seattle Times.
Posted at 07:35 by Howard Bashman



"Judges hear lesbians' child visitation case": The Pittsburgh Post-Gazette contains this article today.
Posted at 07:30 by Howard Bashman



"Fetus' death triggers charge of murder under Ohio law": This article appears today in The Cleveland Plain Dealer.
Posted at 07:27 by Howard Bashman



"Abortion in the crosshairs; With the GOP in firm control, supporters of Roe v. Wade fear a rollback of rights is just a matter of time": Newsday contains this article today.
Posted at 07:25 by Howard Bashman



In news from Wisconsin: Yesterday's edition of The Stevens Point Journal contained an article that begins, "An alleged case of shoplifting a package of elastic hair ties worth $2.45 has engaged the village of Plover in a legal battle costing nearly $14,000 to prosecute."
Posted at 07:22 by Howard Bashman



"Resnick will avoid jail time by attending DUI program": The Toledo Blade today contains an article that begins, "Ohio Supreme Court Justice Alice Robie Resnick will submit to a three-day drunken-driver intervention program rather than spend time behind bars, her attorney said yesterday."
Posted at 07:15 by Howard Bashman



"Judge won't use clerks from Yale": The Birmingham News today contains an article that begins, "An Alabama federal judge has told Yale Law School he won't accept its graduates for clerkships because the school blocks military recruiters from campus."

The Cornell Daily Sun today contains an article headlined "District Court: Solomon Amendment 'Unconstitutional.'"

Finally, today's edition of The Yale Daily News contains an essay entitled "End to 'don't ask' won't come through JAG ban" by columnist Keith Urbahn.
Posted at 07:10 by Howard Bashman



"Future of Supreme Court debated": This article appears today in The Central Michigan Life, the newspaper of Central Michigan University.
Posted at 07:05 by Howard Bashman



"Poll: Litmus test OK for court nominees; No consensus on a Bush appointee's effect on court." CNN.com provides this report.
Posted at 07:00 by Howard Bashman



"House passes underwear measure; Bill, which is getting lots of exposure, has a slim chance in the Senate, delegates say": This article appears today in The Richmond Times-Dispatch. And The Washington Times reports today that "'Droopy drawers' bill seeks end to overexposure of underwear."
Posted at 06:50 by Howard Bashman



"Justice Saylor faces action in HIA incident": The Patriot-News of Harrisburg, Pennsylvania today contains an article that begins, "State Supreme Court Justice Thomas G. Saylor could face a fine of up to $6,000 for twice trying to get a small knife past screeners at Harrisburg International Airport, authorities said yesterday."
Posted at 06:45 by Howard Bashman



"Justices Scalia, Thomas Among Possible Rehnquist Replacements": Bloomberg News provides this report.
Posted at 06:40 by Howard Bashman



Tuesday, February 08, 2005
In same-sex marriage-related news and commentary: The New York Times on Wednesday will report that "Mayor's Words and Actions Are at Odds on Gay Marriage." Today the newspaper contained an article headlined "City Will Request a Quick Decision on Gay Marriage" and an editorial entitled "The Mayor and Gay Marriage."

Newsday reported today that "Mayor treads gently; As lawyers prepare to appeal ruling on gay marriages, he says licenses could cause chaos later."

The New York Daily News reports that "Mike firm on nups appeal."

And The New York Post offers an article headlined "Picking Gay or Nay."

Lastly, FindLaw columnist Joanna Grossman today has an essay entitled "A Manhattan Judge Validates Gay Marriage, Creating a Split Among New York Courts, And Setting the Stage for a Court of Appeals Ruling."
Posted at 23:55 by Howard Bashman



Reply brief in support of petition for writ of certiorari seeking review of constitutionality of judicial recess appointments filed in U.S. Supreme Court: Goldstein & Howe filed this reply brief yesterday. I continue to believe (for reasons I first explained here nearly four years ago) that the question whether the recess appointment power applies to Article III judicial vacancies is worthy of U.S. Supreme Court review.
Posted at 23:50 by Howard Bashman



"How Privacy Went Public: Penumbras and emanations make strange bedfellows." James Taranto has this op-ed today in The Wall Street Journal.
Posted at 23:48 by Howard Bashman



"Race Bait And Switch": Columnist E. J. Dionne Jr. has this op-ed today in The Washington Post.
Posted at 23:45 by Howard Bashman



"Jury trials ruled out in DUI cases? Judges may decide guilt." This article appears today in The Arizona Republic.
Posted at 23:42 by Howard Bashman



The Associated Press is reporting: David Kravets reports that "Appeals Court Sued for 'Commandments' Seal." Unfortunately, as of this afternoon the complaint initiating suit was not available for download from the web site of the U.S. District Court for the Northern District of California. I have asked the author of the complaint, a lawyer proceeding pro se, to forward a copy for posting online here.

In other news, The AP is reporting: "Pa. Justice Detained; Knife Found in Bag"; "NYC Terror Trial Jurors Seek Judge Counsel"; and "Judge Demands Appearance by Gale Norton."
Posted at 23:30 by Howard Bashman



Copyright activism -- the new civil rights movement? The San Francisco Chronicle reports here that "King film shown tonight as part of copyright fight."
Posted at 18:00 by Howard Bashman



Available online from The Associated Press: Jesse J. Holland reports that "Bush Close to Getting Limits on Lawsuits." And in other news, "Embryo Ruling Could Have Ripple Effect."
Posted at 17:45 by Howard Bashman



"Crazy To Die: Michael Ross' execution would be another pointless death." Slate has just posted online this jurisprudence essay by Martha Elliott.
Posted at 17:15 by Howard Bashman



"Asbestos Bill Hits Further Snags, Lawmakers Say": Reuters provides this report.
Posted at 16:48 by Howard Bashman



"Term Limits for Federal Judges?" That's the subject of this week's "Debate Club" feature online at legalaffairs.org. The participants in this week's discussion are Norman J. Ornstein and Ward Farnsworth.
Posted at 16:32 by Howard Bashman



"Okla. Judge's Career Ended by Allegations": The Associated Press provides this report. Earlier coverage from the web site "The Smoking Gun" can be accessed here and here.
Posted at 16:25 by Howard Bashman



"Slate's Jurisprudence: Repressed Memories and the Courts." This segment (RealPlayer required) featuring Dahlia Lithwick appeared on today's broadcast of NPR's "Day to Day."
Posted at 16:00 by Howard Bashman



In news from Kansas: The Wichita Eagle reports today that "Death penalty bills hit Senate; One would abolish executions in Kansas; The other would correct a flaw found in the current law by the Supreme Court." And The Kansas City Star reports today that "Kansas Senate gets death-penalty issue."

In somewhat related news, The Associated Press reports that "Senate studies requiring confirmation of Supreme Court judges; Legislators unhappy death penalty struck down."

Finally, today's broadcast of NPR's "Morning Edition" contained a segment entitled "Kansas Schools Struggle with Evolution" (RealPlayer required).
Posted at 15:40 by Howard Bashman



Comparing Ten Commandments-containing court seals: You can view at this link the Ten Commandments-containing court seal that the U.S. Court of Appeals for the Eleventh Circuit ruled legal in a decision issued in late May 2003.

The U.S. Court of Appeals for the Ninth Circuit's seal, which is now being challenged as unconstitutional, can be viewed at this link.
Posted at 14:44 by Howard Bashman



"Loophole in Photo Law Frustrates Judges": The AP offers a report that begins, "Jeffrey Swisher was caught using a video camera to peer up the skirts of teenagers at a mall, and law enforcement officials were eager to put him behind bars for a long time. His punishment: 10 days in jail."
Posted at 14:24 by Howard Bashman



Court jester has last laugh: The Associated Press reports that "Case against man who told lawyer joke is tossed."
Posted at 14:04 by Howard Bashman



Michael Newdow, on guitar: Last Thursday, I linked here to an article headlined "Newdow protests Pledge of Allegiance" published in The Michigan Daily.

Today at his "Reason & Liberty" blog, Steve Sanders offers a post entitled "God bless Michael Newdow" providing links to video and audio of Newdow's appearance last week at the University of Michigan Law School. RealPlayer is required to launch the video and audio files.
Posted at 12:10 by Howard Bashman



"'Nuclear' tactic would wrongly end filibusters": This editorial appears today in The Oregon Daily Emerald, the campus newspaper of the University of Oregon.
Posted at 12:00 by Howard Bashman



"Lost amidst the recent press about potential judicial nominations battles and the Republican's 'nuclear' strategy are the true facts about the federal judiciary today." So begins today's guest post at "ACSBlog" written by Leesa Klepper, former Senate Judiciary Committee Counsel to Senator Patrick Leahy (D-VT).
Posted at 11:40 by Howard Bashman



Divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit orders dismissal of Second Amendment challenge to provisions of the District of Columbia's criminal code that bar registering and lawfully possessing pistols within the District of Columbia: You can access today's ruling at this link. The court ruled today that none of the plaintiffs had standing to challenge the laws in question.
Posted at 11:05 by Howard Bashman



Sixth Circuit Judge Jeffrey S. Sutton continues on a path likely to cause me to declare him one of the federal appellate judiciary's best writers and thinkers: In this opinion written by Judge Sutton, the Sixth Circuit today rejects a First Amendment and substantive due process challenge to a Kentucky middle school's dress code.
Posted at 10:25 by Howard Bashman



If only the Ninth Circuit were located in the Eleventh Circuit: As I noted here earlier this morning, Bob Egelko reports today in The San Francisco Chronicle that "a lawyer has sued the Ninth U.S. Circuit Court of Appeals in San Francisco for apparently including an image of the commandments in its official seal."

Now some may view it as ironic that the very same U.S. Court of Appeals that viewed with such skepticism the inclusion of the words "under God" in the Pledge of Allegiance would happen to have in its official seal an image of the Ten Commandments. Others may worry that if any federal appellate court might hold the inclusion of the Ten Commandments in a court's seal unconstitutional, it is the Ninth Circuit. For now, let me observe that the Eleventh Circuit in a decision issued in May 2003 ruled that the inclusion of the Ten Commandments in a Georgia county's court seal was not unlawful. My earlier coverage of that ruling can be accessed here.
Posted at 10:20 by Howard Bashman



"Resnick guilty of driving drunk; Justice gets 3 days in jail or treatment, fine": The Toledo Blade contains this article today, along with an op-ed by Doug Scoles entitled "Strengthen the law on Breathalyzer tests."

The Cleveland Plain Dealer reports today that "Resnick gets fine, jail sentence after admitting driving drunk."

And The Dayton Daily News reports today that "Resnick sentenced for drunk driving; 3-day jail term could be served in alcohol treatment program."
Posted at 10:00 by Howard Bashman



"Judge Scolds Haidl Trial Lawyer; Orange County retrial of rape defendants is halted after a defense lawyer's opening statement goes beyond a judge's admonition": This article appears today in The Los Angeles Times.

In related coverage, earlier this month The LATimes published articles headlined:Meanwhile, The Orange County Register today contains an article headlined "Haidl's lawyer muzzled; Judge cuts off opening statement after references to alleged victim's sexual history." And columnist Frank Mickadeit has an essay today entitled "Halted Haidl attorney pleads negligence."

Finally, The Associated Press reports that "Calif. Judge Cuts Rape Trial Defense Short."
Posted at 09:45 by Howard Bashman



"HIA detains Justice Saylor over little knife": The Patriot-News of Harrisburg, Pennsylvania today contains an article that begins, "State Supreme Court Justice Thomas G. Saylor was detained at Harrisburg International Airport on Friday after twice trying to get a small pocket knife through security checkpoints, authorities said."
Posted at 09:25 by Howard Bashman



"Balance of power: Justice O'Connor describes feud between cousins Marshall, Jefferson that shapes government." The Palm Beach Daily News contains this article today.
Posted at 07:40 by Howard Bashman



"Lynn defends school policy; Court hears case on desegregation": This article appears today in The Boston Globe.
Posted at 07:25 by Howard Bashman



"Schiavo's parents' options dwindle": The Orlando Sentinel today contains an article that begins, "An appellate court has dismissed arguments that Terri Schiavo's religious beliefs would have changed her end-of-life wishes. The ruling narrows her parents' legal options in their fight to keep their daughter alive."
Posted at 07:24 by Howard Bashman



"Ruling ties prosecutors' hands; Cross-examination right reaffirmed": The Rocky Mountain News contains this article today.
Posted at 07:22 by Howard Bashman



"Movie follows Illinois Supreme Court race": This article appears today in The St. Louis Post-Dispatch. More information about the movie can be accessed at the movie's web site.
Posted at 07:20 by Howard Bashman



"Start of truck driver's trial delayed for fourth time; Prosecutors given time to file motion against dual juries": Harvey Rice has this article today in The Houston Chronicle.
Posted at 07:14 by Howard Bashman



"Senate Takes Up Class-Action Restrictions; Consumer Groups Try to Soften Measure Forcing Lawsuits Into Federal Courts": This article appears today in The Washington Post.

The New York Times reports that "Fight on Amendment Crucial to Bill Overhauling Lawsuits."

And Reuters reports that "White House Warns Senate on Lawsuit Bill Changes."
Posted at 07:05 by Howard Bashman



"Chertoff heads toward final Senate vote; Homeland Security nominee advances despite Guantanamo issues": The Newark Star-Ledger contains this article today. And The New York Times reports that "Committee Endorses Security Nominee."
Posted at 07:00 by Howard Bashman



"Specter wary of 'nuclear option'": This article appears today in The Washington Times. A transcript of the interview can be accessed here.
Posted at 06:58 by Howard Bashman



U.S. Court of Appeals for the Ninth Circuit is sued over image of Ten Commandments in its seal: Bob Egelko of The San Francisco Chronicle reports today that "Church-state suit filed over court's seal." You can view the seal here (GIF format) and here (PDF format).
Posted at 06:50 by Howard Bashman



"Congress challenges recruiter ban; House of Representatives passes resolution to counter separate Third Circuit Court decision": This article appears today in The Yale Daily News.
Posted at 06:44 by Howard Bashman



Monday, February 07, 2005
"Court offers chance of sentence reform": Bill Piper will have this op-ed Tuesday in The Seattle Post-Intelligencer. And The AP reports that "Lawyers May Seek Sentencing Reform Delay."
Posted at 22:20 by Howard Bashman



The Associated Press is reporting: An article headlined "White House Wants Gay-Policy Suit Tossed" begins, "The Bush administration on Monday asked a federal court to dismiss a lawsuit challenging the Pentagon's 11-year-old 'don't ask, don't tell' policy."

And in Mardi Gras-eve news from Louisiana, "Edwards lawyers send in appeal."
Posted at 22:18 by Howard Bashman



"Mayor defends call for appeal in same-sex ruling": New York Newsday provides this news update.
Posted at 22:15 by Howard Bashman



Available online from law.com: An article reports that "NYC to Take Same-Sex Marriage Ruling Straight to State's High Court."

In news from Texas, "'Booker' Causes Consternation for Prosecutors and Defense Counsel Alike."

And an article reports that "Calif. Court Tosses Lerach Firm's Award in BofA Lawsuit."
Posted at 22:02 by Howard Bashman



"Liberals'n'Lawsuits: Too much reliance on litigation is bad for the courts and the Dems." Neil Gorsuch has this essay today at National Review Online.
Posted at 20:18 by Howard Bashman



"Army recruiter law stalls; A federal appeals court postponed enforcing a ruling allowing law schools to bar recruiters": This article appears today in The Minnesota Daily.
Posted at 20:10 by Howard Bashman



"Justice Resnick pleads guilty to drunken driving": The Dayton Daily News provides this news update.

The Toledo Blade provides a news update headlined "Resnick pleads guilty to DUI charge in Wood County."

And The Associated Press reports that "Justice pleads guilty to drunken driving."
Posted at 19:58 by Howard Bashman



"Homeland Security Nominee Approved by Senate Committee; ACLU Calls for Special Counsel to Investigate Torture Policies": The ACLU this evening issued a press release that begins, "The Senate Homeland Security and Government Affairs Committee today approved, by voice vote, the nomination of Michael Chertoff."
Posted at 19:54 by Howard Bashman



"NY Mayor Bloomberg in a Bind Over Gay Marriage": Reuters provides this report. And The Associated Press reports that "NYC Mayor Faces Dilemma on Gay Marriage."
Posted at 17:15 by Howard Bashman



Amicus brief-related recusals of federal appellate judges: The U.S. Court of Appeals for the Second Circuit today adopted this local rule on an interim basis, with a comment period extending through March 7, 2005.

The interim rule provides:
The Court ordinarily will deny leave to file a brief for an amicus curiae where, by reason of a relationship between a judge who would hear the proceeding and the amicus or counsel for the amicus, the filing of the brief would cause the recusal of the judge.
Unfortunately, the rule as announced by the Second Circuit today lacks any advisory committee notes, which might be helpful in understanding precisely how the rule is intended to work.

A few issues strike me as worthy of consideration. First, the interim rule only applies when permission from the court is required to file an amicus brief. If all parties to the appeal consent, or if the amicus is the federal government, its officer or agency, or a State, territory, or the District of Columbia, no permission from the court is required in order for an amicus brief to be filed.

Second, often the briefing of an appeal occurs before a case is assigned to a particular three-judge panel for disposition. Does the use of the phrase "a judge who would hear the proceeding" mean that permission to file an amicus brief will be denied if the lawyer on the brief might cause only a single Second Circuit judge to recuse, and that judge only has a small chance of being randomly assigned to the case?

Third, some federal appellate judges apply one recusal standard to parties and another to amici. Thus, a federal appellate judge may decide that he will not hear any appeals in which the large law firm at which his daughter works as an associate is involved as counsel for a party, but won't recuse from appeals in which that law firm represents an amicus unless his daughter is directly involved in working on the matter. Whether this rule envisions a different standard for recusals depending on whether the cause is a party or an amicus is unknown.

Finally, if the purpose of the rule is to discourage strategic recusals -- hire law firm X to recuse Second Circuit Judge Y from the appeal -- a rule dealing directly with that issue (which both parties to appeals and amici could attempt to exploit) would seem a better solution.
Posted at 16:50 by Howard Bashman



Congressional hearings don't usually contain this much pretend near nudity: For those who haven't yet had their fill of the dispute over the Go Daddy Super Bowl ad spot, via this link (select "The Full 'Web Only' Censorship Hearing") you can access the perhaps even more controversial two-minute version of the ad. Daniel W. Drezner opines that the matter may be heading toward litigation.
Posted at 16:35 by Howard Bashman



Senior U.S. District Judge Joyce Hens Green denies request from Guantanamo detainees to reconsider stay pending appeal in Guantanamo detainee cases: The U.S. District Court for the District of Columbia issued this order today. My earlier coverage of this case can be accessed here and here.
Posted at 16:25 by Howard Bashman



Law Professor Walter E. Dellinger III's recent interview of U.S. Supreme Court Justice Ruth Bader Ginsburg can now be viewed online: This past Saturday's installment of C-SPAN's "America & the Courts" can be viewed online by clicking here (RealPlayer required). My earlier post about the interview can be accessed at this link.

And thanks to C-SPAN for including "How Appealing" on its list of blogs.
Posted at 15:05 by Howard Bashman



"Challenging Texas Obscenity Laws": Today's broadcast of NPR's "Day to Day" contained this segment (RealPlayer required) about a Texas statute banning the distribution of sex toys.
Posted at 15:02 by Howard Bashman



In commentary from The Hartford Courant relating to Connecticut's death penalty volunteer: Yesterday, Law Professor Robert Blecker had an op-ed entitled "'God Love Him'? May Ross End In Hell."

Also yesterday, Kevin Rennie had an op-ed entitled "The Judicial Rant Is Sure to Draw Political Backlash," while Harold I. Schwartz, M.D. had an op-ed entitled "Misusing Psychiatry To Abolish The Death Penalty."

In today's newspaper, columnist Frank Harris III has an essay entitled "The Circus That Ross Built." And six lawyers have signed a letter to the editor that appears under the heading "A Bold Stand For Justice."
Posted at 15:00 by Howard Bashman



"Publishing Groups Say Google's Library-Scanning Effort May Violate Copyright Laws": This article appears today in The Chronicle of Higher Education.
Posted at 14:40 by Howard Bashman



Harry Potter vs. U.S. Army: The Sunday Times of London yesterday contained an article headlined "Rowling fights US army over Harry Potter."
Posted at 14:15 by Howard Bashman



U.S. Court of Appeals for the Seventh Circuit delivers good news for bald white guys: Today a three-judge Seventh Circuit panel issued an opinion written by Circuit Judge Richard A. Posner that contains the following passage (from which certain citations are omitted):
The first trial error occurred, according to the plaintiffs, when the judge refused during the voir dire to propound questions to two of the prospective jurors whom the plaintiffs' lawyer suspected of being "skinheads." He feared that skinheads would be prejudiced against the plaintiffs, both of whom are black. The term "skinheads" generally refers to fierce racists, often neo-Nazi in ideology, who shave their heads, e.g., Walter M. Hudson, "Racial Extremism in the Army," 159 Military L. Rev. 1, 19-22 (1999), though there is also a group called "Skinheads Against Racial Prejudice," whose specialty is breaking up Ku Klux Klan rallies. Church of the American Knights of the Ku Klux Klan v. City of Gary, 334 F.3d 676, 680 (7th Cir. 2003). The jurors in question, who had either shaven heads or very close-cropped hair, were a bearded tool-and-die maker and a young man who had recently spent four years in the army. Both lived in or near towns that had very few black residents. In common with the other prospective jurors the two had been asked about their background, education, and so forth, including what newspapers or magazines they read and what clubs or other organizations they belonged to, and nothing in their answers had suggested that they were skinheads. Nor did they have any visible tattoos that might have furnished a clue to membership in a racist organization. Nevertheless the plaintiffs' lawyer wanted the judge to ask the two whether they were racists or members of racist organizations. The judge refused. The lawyer then used one of his three peremptory challenges to remove the tool-and-die maker from the jury.

We asked at argument why he hadn't used another of his three peremptory challenges to remove the other suspected skinhead. He answered that he had to use both his remaining peremptory challenges to remove jurors who he believed disliked him. The implication is that it was his own ineptitude in managing to antagonize jurors during the voir dire, rather than the judge's refusing to allow him to pursue the skinhead issue, that resulted in the second suspected skinhead's remaining on the jury. What is more, if the judge had asked the two suspects whether they were racists and they had convinced the judge that they were not, the plaintiffs' lawyer would still have had to try to remove them from the jury, as they would know from the plaintiffs' race where the questions had come from and would probably be offended to have inferences of racism drawn from their personal appearance. And then the lawyer would have been in the same pickle, having three peremptory challenges but needing four--two for the suspected skinheads (exonerated and resentful) and two for the jurors whom he had antagonized on other grounds.

The judge committed no error in refusing to go down the path marked for him by the plaintiffs' lawyer. There was no racial issue in the case. Corporate defendants have no race; and in fact the representative of Active Transportation at the defendants' counsel table during the trial was a black person. Jurors--poorly paid conscripts who play an important role in the American system of justice--have a right not to be humiliated; questions about their personal appearance, a subject about which most people are sensitive--questions such as "Why is your hair so long?" "Why are you so fat (or so thin)?" "Why are your shirt tails hanging out?" "Are you making a political statement by wearing black lipstick and a ring through your nose?"--should therefore be avoided unless necessary to allay reasonable concerns about a juror's impartiality.

Many men and even a few women shave their head as a fashion statement (Michael Jordan, the former basketball star, and Richard Grasso, the deposed chairman of the New York Stock Exchange, being conspicuous but not isolated examples); some of course lose all their hair because they are undergoing chemotherapy. Balding young men sometimes decide to go all the way. American soldiers often wear their hair cut so short that their heads look shaven, and that may well be the explanation for the "skinhead" appearance of the juror who had left the army recently. The presence of a shaved head is feeble grounds for suspecting that a person is a skinhead, even if he lives in, let alone merely near, an almost all-white community, as tens of millions of whites do. The questions about reading matter and organizations should have smoked out the presence of any skinheads, if they answered the questions truthfully; if they did not, neither would they answer the question "Are you a skinhead?" truthfully were it put to them by the judge.
You can access the complete ruling at this link.
Posted at 13:05 by Howard Bashman



What's the record for number of writs of mandamus granted in a single federal criminal prosecution? Harvey Rice of The Houston Chronicle has a news update headlined "Trial delayed again in murder trial of trucker carrying immigrants." And The Associated Press reports that "Texas Smuggling Deaths Trial Put on Hold."
Posted at 11:55 by Howard Bashman



Did you hear the one about the two guys who were arrested for telling lawyer jokes outside a New York courthouse? The New York Times today contains an article headlined "The Worst Place for Lawyer Jokes? In Line at the Courthouse, Two Men Discover."
Posted at 10:55 by Howard Bashman



"Stories From the Inside": Today in The New York Times, columnist Bob Herbert has this Guantanamo-related op-ed.
Posted at 10:50 by Howard Bashman



"Great Lives in the Law: Justice Ruth Bader Ginsburg." This past Saturday's broadcast of C-SPAN's fine program "America & the Courts" consisted of an interview that Law Professor (and "How Appealing" reader) Walter E. Dellinger III conducted one week ago today of U.S. Supreme Court Justice Ruth Bader Ginsburg. C-SPAN has yet to make the video available online, but via the Duke University School of Law's web site you can access this report on the interview.
Posted at 10:45 by Howard Bashman



"Bush poised to push anti-environmental judge": This news analysis appears in the current issue of Indian Country Today.
Posted at 10:35 by Howard Bashman



"Pleading the Fourteenth: Congress already holds the power to define marriage." Austin Bramwell has this essay in the current issue of The American Conservative magazine.
Posted at 10:05 by Howard Bashman



"Constitutional theories of same-sex marriage": Yale Law Professor Jack M. Balkin has this post online today at his blog, "Balkinization."
Posted at 10:04 by Howard Bashman



"Lawrence Advocate Paul Smith on Cert Denial in Florida Adoption Case": Paul M. Smith has this post online at "ACSBlog."
Posted at 09:50 by Howard Bashman



New and improved "SCOTUSblog": Here's the new link.
Posted at 09:44 by Howard Bashman



"In this case we consider whether statements made by child abuse victims to a social worker, though hearsay, may continue to be admitted at a criminal trial through the social worker under Maryland's 'tender years' statute in light of the U.S. Supreme Court's ruling in Crawford v. Washington." So begins a unanimous ruling that the Court of Appeals of Maryland, that State's highest court, issued today. With regard to the question presented, the court answered "no."
Posted at 09:33 by Howard Bashman



"Courts should let parents do their duty -- and pry": Columnist Robert L. Jamieson Jr. has this essay today in The Seattle Post-Intelligencer.
Posted at 09:14 by Howard Bashman



Pennsylvania's Governor would have won this bet had he demanded the point spread: On Friday, January 28, 2005, The Harrisburg Patriot-News reported that "Governors' bet involves singing." The article explains that because Pennsylvania Governor Edward G. Rendell is not renowned for his singing voice, Pennsylvania First Lady and Third Circuit Judge Marjorie O. Rendell, "a trained opera singer, will serenade Boston Celtics fans with the national anthem." So Massachusetts Governor Mitt Romney chose Midge Rendell over a cheese steak? He's a shrewd negotiator.
Posted at 08:40 by Howard Bashman



"After Harvard, Yale Law Second To Ban Military Recruiters; Law schools say 'don't ask, don’t tell' policy is discriminatory": This article published today in The Harvard Crimson contains several quotes from me. And Washington Square News reports today that "OUTLaw protests recruiters on campus."
Posted at 07:33 by Howard Bashman



"Why is this man attorney general?" Nat Hentoff has this essay today in The Washington Times.
Posted at 07:32 by Howard Bashman



"Top court to revisit sentencing; Justices will decide if case cited correctly": The News Journal of Wilmington, Delaware on Saturday contained an article that begins, "The Delaware Supreme Court, in documents made public Friday, said it will reconsider its November ruling in which it said a rapist sentenced to life in prison with the possibility of parole could be released in 45 years or fewer. The ruling ignited a political firestorm, during which legislators and Gov. Ruth Ann Minner unanimously approved what experts say is a questionable law that declared the state Supreme Court decision 'null and void.'"
Posted at 07:30 by Howard Bashman



"Getting the lowdown on state's top court": Columnist Pat Gauen has this essay today in The St. Louis Post-Dispatch.
Posted at 07:28 by Howard Bashman



"Former Bush administration lawyer to speak; Olson cited as likely Supreme Court Justice candidate": Student Life of Washington University in St. Louis contains this article today.
Posted at 07:27 by Howard Bashman



"Prayers provoke protests; Critics demand neutral policy in official meetings": This article appears today in The South Florida Sun-Sentinel.

And today in The Providence Journal, Steven Brown has an essay entitled "Keep religion, government separate."
Posted at 07:25 by Howard Bashman



"Division Over Civil Unions; Some Gays Question Strategy Of Marriage Or Nothing": The Hartford Courant contains this article today. And in The Detroit News, columnist Deb Price today has an essay entitled "Gays lobby for marriage over civil unions."

Meanwhile, from New York, The New York Daily News contains an article headlined "Pols: Mike cowardly on gay nuptials."

The New York Post contains an article headlined "Mayor is 'bi' on gay nups: critics."

Newsday contains an article headlined "Dems' fighting words: Gay politician calls mayor 'coward' for appealing a court ruling legalizing same-sex marriages."

The New York Sun reports that "On Gay Marriage, Mayor Emerges, But Not in Court."

Washington Square News contains an article headlined "Gay marriage and the city."

In The New York Times, Metro Matters columnist Joyce Purnick has an essay entitled "Welcome to the Fray, Mr. Mayor."

And CBS News legal analyst Andrew Cohen has an essay entitled "Same-Sex Marriage In NY."
Posted at 07:18 by Howard Bashman



"Court ruling puts many death row cases in question": This article appears today in The Reno Gazette-Journal.
Posted at 07:17 by Howard Bashman



"Judge's lawyer defends secrecy oath; Attorneys were barred from proceeding when they refused": The Milwaukee Journal Sentinel contains this article today.
Posted at 07:15 by Howard Bashman



"Lawyer's career, fame built on love of First Amendment; Clients include strip clubs, adult bookstores, consumer advocates; Diamond often challenges city ordinances": This article appears today in The San Bernardino County Sun.
Posted at 07:11 by Howard Bashman



"Williams trial has parties on edge; Jury selection set to begin in smuggling case; judge, lawyers on tense grounds": Harvey Rice has this article today in The Houston Chronicle.
Posted at 07:00 by Howard Bashman



"A Big Win for Big Tobacco: Why It Essentially Moots the Ongoing RICO Trial in D.C." FindLaw columnist Anthony J. Sebok has this essay online today.
Posted at 06:55 by Howard Bashman



"A Big Win for Big Tobacco: Why It Essentially Moots the Ongoing RICO Trial in D.C." FindLaw columnist Anthony J. Sebok has this essay online today.
Posted at 06:55 by Howard Bashman



"Chertoff Court Opinions Shed Insight": Lara Jakes Jordan of The Associated Press provides this report. The AP also reports that "Meryl Chertoff knows the corridors of power."

And today in The Washington Post, Clark Kent Ervin has an op-ed entitled "A To-Do List for Chertoff."
Posted at 06:44 by Howard Bashman



Sunday, February 06, 2005
"Gay Marriage Debate Is Double-Edged Sword for Mayor": This article will appear Monday in The New York Times.
Posted at 22:52 by Howard Bashman



"The Maws are Agape . . . with the Sound of Money": California Court of Appeal Justice William W. Bedsworth's brand new column can be accessed online at this link.
Posted at 22:50 by Howard Bashman



"A victory not to crow about": Syndicated columnist James J. Kilpatrick has this essay about a recent ruling of the California Supreme Court.
Posted at 22:48 by Howard Bashman



"Serving in the Chief Justice's Shadow": Charles Lane will have this article Monday in The Washington Post.
Posted at 22:45 by Howard Bashman



"As Piracy Battle Nears Supreme Court, the Messages Grow Manic": This article will appear Monday in The New York Times.
Posted at 22:44 by Howard Bashman



"Religious right fights science for the heart of America; Creationists take their challenge to evolution theory into the classroom": The Guardian (UK) contains this article in Monday's edition.
Posted at 22:42 by Howard Bashman



"$280bn tobacco suit in disarray after appeal court defeat": This article appears in Monday's edition of The Independent (UK).
Posted at 22:40 by Howard Bashman



"Age discrimination suit to test status of law firm partners": Patti Waldmeir has this article in Monday's edition of Financial Times.
Posted at 22:37 by Howard Bashman



"Abortion bill may be OK'd within days": This article will appear Monday in The Atlanta Journal-Constitution.
Posted at 22:35 by Howard Bashman



"Sullivan still busy after deanship": Friday's issue of The Stanford Daily contained this article.
Posted at 22:33 by Howard Bashman



"States See Growing Campaign to Change Redistricting Laws": This article will appear Monday in The New York Times.
Posted at 22:20 by Howard Bashman



"Citation of Unpublished Opinions: The Appellate Judges Speak." Fordham University School of Law will host this quite interesting program on Thursday, February 17, 2005.
Posted at 17:50 by Howard Bashman



In Monday's edition of The Christian Science Monitor: Tomorrow's newspaper will contain an article headlined "Congress crosses partisan divides on some issues; Agreement on moving class-action suits to federal courts indicates bridge building between parties, for now."

In other news, "Weighing justice and fanfare in Jackson trial; As jury selection begins, a frenzy of coverage prompts questions about the media and fair trials."

And an article will be headlined "Office memo: 'Blogging' can get you bounced."
Posted at 17:44 by Howard Bashman



"File-sharing networks examined": The Cincinnati Enquirer contains this article today.
Posted at 17:21 by Howard Bashman



"Backtracking on the bench": Columnist Eileen McNamara has this essay today in The Boston Globe.
Posted at 17:20 by Howard Bashman



"E. A. Farnsworth, 76, Legal Scholar, Dies": This obituary appears today in The New York Times.
Posted at 17:14 by Howard Bashman



"The Right to Marry, or Not to Marry, Is the Issue Among Canada's Gays": This article appears today in the Week in Review section of The New York Times.
Posted at 14:05 by Howard Bashman



In the February 14, 2005 issue of Newsweek: The magazine will contain an article headlined "Policing Video Voyeurs: The Feds join the battle against perverts with cameras." And in somewhat related coverage, "Big Brother's New Way to Watch You."
Posted at 10:44 by Howard Bashman



"Lawsuits set to go on trial in Senate; Bill would move more cases to U.S. courts": This article appears today in The Birmingham News.
Posted at 10:40 by Howard Bashman



In the Sunday Opinion section of The Los Angeles Times: Edward Lazarus has an op-ed entitled "The Class of 9/11 Rethinks the Law."

Joan A. Lukey, who on January 29, 2005 had an op-ed entitled "Lessons on reshaping the Supreme Court" in The Boston Globe, today has a similar op-ed entitled "Beyond Rock, Paper, Scissors ... Choosing a new chief justice is a complex game."

John W. Dean has an op-ed entitled "Should We Jail Deep Throats ...," to which Kelli L. Sager responds in an op-ed entitled "... or Protect Secret Sources?"
Posted at 10:34 by Howard Bashman



In news and commentary relating to Connecticut's death penalty volunteer: The New Haven Register reports today that "Ross judge a magnet for wrath, praise." The article begins, "The federal judge who almost single-handedly stopped the state's first execution in 45 years has made controversial moves before, such as when he deemed the state's sex offender registry unconstitutional."

And The Day of New London today contains an essay by Don Pesci entitled "Judge Chatigny's Bully(ing) Pulpit; As the Ross case suggests, criminal justice is surrounded by stupid slogans and stupid dogma."
Posted at 10:30 by Howard Bashman



In same-sex marriage-related news: From Kansas, The Lawrence Journal-World reports today that "Gay marriage ban sparks slew of legal questions."

From New York, The New York Daily News reports today that "Mike favors gay nups - & appeal." The New York Post today contains an article headlined "Mike: Annul gay ruling." And Newsday reports that "Gays heckle Bloomberg."

Finally, The San Francisco Chronicle reports today that "Newsom's political future tied to same-sex marriage; Mayor hosting party on first anniversary of historic weddings."
Posted at 10:25 by Howard Bashman



"Fact is, this theory is under attack; Charles Darwin's contributions to science are facing serious challenges - from Elkton to Dover, Pa., and across the nation": Yesterday's issue of The Baltimore Sun contained this article.
Posted at 10:22 by Howard Bashman



"Judge says lost embryo a human; Ruling clears way for couple's suit": This article appears today in The Chicago Tribune. As I noted here last night, yesterday The Chicago Sun-Times reported that "Destroyed embryo deemed human."
Posted at 10:20 by Howard Bashman



Hand jive: The Daily Breeze of Torrance, California reports today that "Investigation into gesture made at meeting is dropped; Torrance city attorney rejects case after reviewing police report Mayor Walker had requested into an alleged hand gesture made by one of his critics."
Posted at 10:15 by Howard Bashman



"Out-of-state funds fuel affirmative action fight; California's Connerly donated $355,000 to support ban": This article appears today in The Ann Arbor News.
Posted at 10:14 by Howard Bashman



"Appeal expected in mayoral race; Frye supporters' attorney says cost of effort an issue": The San Diego Union-Tribune contains this article today.
Posted at 10:12 by Howard Bashman



"Ruling That Colleges Can Bar Military Recruiters Faces Fight": This article appears today in The New York Times.

And in somewhat related news, Patty Reinert of The Houston Chronicle today has an article headlined "Is the military out of step? 12 troops, discharged for being gay, are suing over what some call an outdated rule; The Defense Department says it's just enforcing the law."
Posted at 10:10 by Howard Bashman



In news from Alaska: The Associated Press reports that "Embattled Alaska Attorney General Resigns." Reuters reports that "Alaska Attorney General Resigns." And The Anchorage Daily News reports today that "Embattled Renkes resigns; Scrutiny began in September." You can access at this link the letter of resignation that Alaska Attorney General Gregg D. Renkes issued yesterday.
Posted at 09:44 by Howard Bashman



Saturday, February 05, 2005
Angry sarcastic judge receives official reprimand in Washington State: The Associated Press provides this report.
Posted at 23:45 by Howard Bashman



In news from Washington State: The Seattle Times reports today that "Judge might void election, won't order new one."

The Seattle Post-Intelligencer contains an article headlined "Judge: No revote in governor dispute; He says he can't order a special election even if GOP has case."

The Olympian reports that "Judge won't call for new election; Both parties interpret victories from day of rulings."

And The New York Times reports that "Judge Finds Court Proper for Challenge to Election."
Posted at 23:40 by Howard Bashman



"The NY Same Sex Marriage Case": Yale Law Professor Jack M. Balkin has this post online today at his blog, "Balkinization."
Posted at 23:22 by Howard Bashman



"Schools fighting rights": Rich Tucker has this Solomon Amendment-related op-ed online today at Townhall.com.
Posted at 23:20 by Howard Bashman



In Sunday's issue of The New York Times: Adam Liptak will report that "Inmate's Rising I.Q. Score Could Mean His Death."

In local news, "Mayor Seeks Quick Appeal on Gay Ruling."

Finally, in The New York Times Magazine, Ann Hulbert has an essay entitled "Textbook Message." And The Ethicist answers whether a law student who has recently passed the bar should "Take the Oath."
Posted at 23:10 by Howard Bashman



"Destroyed embryo deemed human": The Chicago Sun-Times today contains an article that begins, "A frozen embryo destroyed in a Chicago fertility clinic was a human being whose parents are entitled to file a wrongful-death lawsuit, a Cook County judge ruled Friday."
Posted at 21:15 by Howard Bashman



"For Jury in a Lawyer's Complex Terror Trial, the Strategy Seems to Be, 'Don't Rush Me'": The New York Times today contains an article that begins, "It has been three weeks since 12 jurors started deliberating the fate of Lynne F. Stewart, a lawyer accused of aiding Islamic terrorists, and of two other defendants."
Posted at 20:25 by Howard Bashman



"Full-court press: Interest groups of all kinds are already girding for battle over the next Supreme Court nominee." This article will appear in the February 14, 2005 issue of U.S. News & World Report.
Posted at 20:10 by Howard Bashman



"Curriculum fights put schoolchildren in culture-war crossfire": The Associated Press provides this report.
Posted at 18:02 by Howard Bashman



"A Lifelong Lesson in Justice: Gathering will pay tribute to the mostly white teachers who followed their Japanese students into WWII internment camps." This article appears today in The Los Angeles Times.
Posted at 18:00 by Howard Bashman



"Resnick admitted to having a drink; Justice told police officer that she had 'something'": The Toledo Blade contains this article today.

And The Dayton Daily News today contains an article headlined "Video shows Resnick pleading; Justice tells troopers she's decided in their favor."
Posted at 14:45 by Howard Bashman



"Judge: Gay marriage okay; City gets chance to file appeal." This article appears today in The New York Daily News, which also reports that "'Huge milestone' is hailed in city."

The New York Post today contains an article headlined "Gay-wed shocker."

Newsday reports that "NY's same-sex marriage ban struck down."

The Journal News of Westchester reports that "NYC judge rules gays can wed."

The Buffalo News reports that "Same-sex marriage ruled to be legal; State Supreme Court decision says unions are constitutional."

The Washington Post reports that "Manhattan Judge Clears the Way for Same-Sex Marriages; Ruling Will Not Take Effect for 30 Days."

The Washington Times reports that "Manhattan judge says gays have right to 'marry.'"

And The Los Angeles Times reports that "N.Y. Ban on Gay Marriage Annulled."
Posted at 14:40 by Howard Bashman



A post in which I feign interest in the Michael Jackson trial: Last night, The Village Voice posted online an essay by Michael Musto entitled "Why the King of Pop Will Moonwalk: Musto skips jury duty and judges the Michael Jackson trial."

Also yesterday, Slate posted online a jurisprudence essay by Dahlia Lithwick entitled "Never Can Say Goodbye: Can Michael Jackson stop being a freak to save his life?"

Today, The Los Angeles Times reports that "Media Feeding Frenzy Subsists on Morsels."

Finally, tomorrow's edition of The New York Times will contain an article in the Sunday Styles section headlined "Jackson Goes to Court: to Moonwalk or to Tiptoe?"
Posted at 14:20 by Howard Bashman



Another State refuses to butt out of trouser regulations; Virginia attempts to crack down on low-rider pants: The Richmond Times-Dispatch reports today that "Low-ride pants bill advances; Proposal moves to full House despite warnings it isn't constitutional."
Posted at 14:14 by Howard Bashman



"Scalia Not Discouraging Chief Justice Talk": Hope Yen of The Associated Press provides this report.
Posted at 14:00 by Howard Bashman



Big Tobacco's big win: The Los Angeles Times reports today that "U.S. Can't Go After Tobacco's Past Profits; An appellate court rules that the racketeering statute does not allow the government to claim $280 billion it alleges was earned illegally."

The Louisville Courier-Journal reports that "Tobacco gets shield for profits; U.S. can't seize $280 billion in suit."

The Richmond Times-Dispatch reports that "Ruling hurts tobacco fraud suit; Judge says government can't strip $280 billion from cigarette makers."

And The Winston-Salem Journal reports that "Tobacco companies win ruling; Court says that U.S. can't go after billions."
Posted at 13:50 by Howard Bashman



"Divisive call on trucker's jury; Judge says first panel will weigh guilt, 2nd would decide sentence": This article appears today in The Houston Chronicle.
Posted at 13:40 by Howard Bashman



"Ruling protects Marcos' assets; Victims of his reign in Philippines had hoped for damages": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 13:32 by Howard Bashman



Available online from law.com: An article is headlined "Class Action: One Bill, Two Worldviews."

And in other news, "New York Judge Mandates Same-Sex Marriage; Judge rules statute denies due process and equal protection under state constitution."
Posted at 09:35 by Howard Bashman



"NY Judge Bans Heterosexual Marriage": The blog "ScrappleFace" offers this report.
Posted at 08:54 by Howard Bashman



"GOP judicial strategy": Robert Novak's column published today begins, "Senate Republican leaders have decided to begin their use of the 'nuclear option' -- forcing confirmation of President Bush's judicial nominations with a majority Senate vote -- on an African-American woman blocked by Democrats from a federal judgeship."
Posted at 08:45 by Howard Bashman



Friday, February 04, 2005
"Judge's Ruling Opens Window for Gay Marriage in New York": Saturday's edition of The New York Times will contain this article.
Posted at 23:35 by Howard Bashman



"Filipinos Lose Human Rights Lawsuit": David Kravets of The Associated Press offers this report on a ruling that the U.S. Court of Appeals for the Ninth Circuit issued today.
Posted at 23:33 by Howard Bashman



"Appellate Court Backs Companies in Tobacco Case": This article will appear Saturday in The New York Times. And Saturday's edition of The Washington Post will contain a front page article headlined "Judge Rejects Tobacco Penalty; U.S. Sought $280 Billion in Past Profits."
Posted at 23:30 by Howard Bashman



"A Whistle-Blower's Inside View of the Homeland Security Nominee": Jesselyn Radack has this op-ed today in The Los Angeles Times.
Posted at 21:00 by Howard Bashman



"Court Rejects Racketeering Penalty for Tobacco Industry": This evening's broadcast of NPR's "All Things Considered" contained this segment (RealPlayer required).

And The Los Angeles Times offers a news update headlined "Federal Government Loses Round to Tobacco Firms."
Posted at 20:45 by Howard Bashman



"Judge Rejects New York Ban on Same-Sex Marriage": The New York Times provides this news update.
Posted at 20:35 by Howard Bashman



"Court: Tobacco Billions Beyond U.S. Reach." Reuters offers this updated coverage.
Posted at 17:38 by Howard Bashman



"N.Y. Ban on Same-Sex Marriage Struck Down": The Associated Press provides this report.
Posted at 17:35 by Howard Bashman



"Cobb evolution case draws offers of help": The Atlanta Journal-Constitution today contains an article that begins, "The Cobb County school board has a standing offer of help and money from a powerful Christian legal group as it appeals a federal court ruling banning its textbook disclaimers about evolution."

Relatedly, The New York Times today contains an editorial entitled "Afraid to Discuss Evolution."
Posted at 17:30 by Howard Bashman



"We are aware that three other federal courts of appeals have reached results different from our own in regard to whether Booker error is plain error. We have carefully read their opinions and are unpersuaded by them." Circuit Judge Ed Carnes of the U.S. Court of Appeals for the Eleventh Circuit issued this opinion today on behalf of a unanimous three-judge panel of that court. His very interesting Booker plain error analysis begins on page 14 of the slip opinion. I've long been a fan of Judge Carnes's written work, and this opinion provides another fine example of why.
Posted at 17:18 by Howard Bashman



"The TTABlog": This blog that I learned of today has as its subject matter either the Trinidad and Tobago Association of Baltimore or the Trademark Trial and Appeals Board. I report, you decide.
Posted at 17:10 by Howard Bashman



"Judge refuses to dismiss lawsuit over governor's election": The Seattle Times provides this news update. And today's edition of that newspaper contains articles headlined "Threat to Gregoire brings arrest; state guarding Rossi, too" and "GOP election lawsuit makes vote observer famous."
Posted at 16:44 by Howard Bashman



"Cookie klatch lands girls in court; Two Durango teens thought they'd surprise neighbors with nighttime deliveries of home-baked treats; But one woman was so terrified, she sued and has won": This article appears today in The Denver Post.
Posted at 15:10 by Howard Bashman



"Court Sides With Tobacco in Fraud Case": The Associated Press provides this report. And Reuters reports that "Tobacco Cos Win Court Appeal, Shares Up."
Posted at 15:05 by Howard Bashman



"No person should be executed in America on the theory that his life is of less worth than that of someone else." So begins the dissent that Fourth Circuit Judge J. Harvie Wilkinson III issued today from the U.S. Court of Appeals for the Fourth Circuit's en banc decision upholding a death sentence. Today's ruling represents one more instance in which Wilkinson and Circuit Judge J. Michael Luttig find themselves in quite substantial disagreement -- something that can strike observers as quite odd, given that both men are viewed as possible George W. Bush nominees to the U.S. Supreme Court. Judge Luttig has written a concurring opinion in which he responds to Judge Wilkinson's dissent. You can access the complete ruling at this link.
Posted at 14:45 by Howard Bashman



BREAKING NEWS -- Divided three-judge D.C. Circuit panel rejects federal government's civil RICO claim for disgorgement against Big Tobacco: Today's ruling, which you can access here, prevents the federal government from recovering $280 billion in damages, Reuters is reporting here.

In his dissenting opinion, Circuit Judge David S. Tatel writes: "In now holding that district courts may never order disgorgement as a remedy for RICO violations, this court ignores controlling Supreme Court precedent, disregards Congress's plain language, and creates a circuit split--all in deciding an issue not properly before us." Today's ruling may not be the last word from an appellate court on this issue in this case.
Posted at 14:32 by Howard Bashman



Perhaps Senator Roman Hruska was right? On Monday, February 14, 2005, the American Enterprise Institute will host a discussion about whether more highly qualified federal judicial nominees encounter greater difficulty in obtaining U.S. Senate confirmation. A would-be Dartmouth trustee is among the scheduled discussants. (The basis for this post's title can be found in the final item of OpinionJournal's "Best of the Web Today" for October 30, 2002).
Posted at 14:24 by Howard Bashman



"Views on Justice Brown Illustrate Great Political Divide; Justice Brown's Opinions Give Partisans Plenty of Ammunition": Today in the Daily Journal, Peter Blumberg has this article about California Supreme Court Justice Janice Rogers Brown, whom President Bush will soon renominate to fill a vacancy on the U.S. Court of Appeals for the D.C. Circuit.

Among those quoted in the article are Law Professors Douglas W. Kmiec and Eugene Volokh.
Posted at 14:00 by Howard Bashman



Standing room only expected next week at Federal Circuit en banc oral argument: The U.S. Court of Appeals for the Federal Circuit has issued this notice.

As for why the case is such a big deal, the blog formerly known as "Patently Obvious" suggests two possible answers: the case involves modular wall panels for prisons; or the case involves questions likely to create dramatic changes in patent litigation procedures.
Posted at 13:50 by Howard Bashman



"New York Court Rules Gays Must Be Allowed To Marry": The web site 365Gay.com provides this news report today. Update: Today's ruling of the Supreme Court for the State of New York for New York County can be accessed at this link.
Posted at 13:45 by Howard Bashman



"Gonzales: Fighting Terror Will Be Priority." Jesse J. Holland of The Associated Press provides this report.
Posted at 12:10 by Howard Bashman



"Today's decision has the effect of giving police officers unqualified immunity when they demonstrate deliberate indifference to the safety of the general public." So begins the lead dissenting opinion to an en banc Eighth Circuit ruling issued today. The majority opinion affords qualified immunity from suit to two deputy sheriffs who, while responding to a domestic disturbance call, drove through a red light with their emergency lights and siren activated and collided with another car in the intersection, killing that car's driver. You can access the complete decision at this link.
Posted at 11:54 by Howard Bashman



"Fitting Gonzales for a justice's robe": The Austin American-Statesman contains this editorial today.
Posted at 11:45 by Howard Bashman



"Senate Ratifies Attorney General; Alberto R. Gonzales is confirmed 60 to 36; Democrats object to his role in White House memos on torture and his close ties to Bush": This article appears today in The Los Angeles Times.

The San Francisco Chronicle reports that "Senate OKs Gonzales as attorney general; Democrats register significant protest with 35 no votes."

The Sacramento Bee reports that "Latino named nation's top cop."

The Chicago Tribune reports that "Senate OKs Gonzales for Cabinet post; 1st Hispanic attorney general cited for successes; terror memos slammed."

The Chicago Sun-Times reports that "Anti-war Obama opposes Gonzales."

The Washington Times contains articles headlined "Gonzales confirmed attorney general" and "GOP seizes on opposition to Gonzales."

The Dallas Morning News reports that "Gonzales confirmed as first Hispanic AG; Initial support from Democrats eroded during hearings."

The San Antonio Express-News contains an article headlined "It's official: Gonzales is next AG."

Michael McGough of The Pittsburgh Post-Gazette reports that "Divided Senate OKs Gonzales; first Hispanic attorney general faulted on interrogations; All 'no' votes come from Democrats."

The Atlanta Journal-Constitution reports that "Gonzales approved by Senate; By 60-36 vote, U.S. gets its first Hispanic attorney general."

The Palm Beach Post reports that "Gonzales wins Senate approval for attorney general."

The Hartford Courant reports that "Dodd Casts A Personal Vote; In Opposing Gonzales, Senator Invokes His Father."

And The New York Times today contains an editorial entitled "The Senate and Mr. Gonzales."
Posted at 11:30 by Howard Bashman



My two cents: Thanks to the continuing accrual of dividends, it has so far taken three checks to roll-over to my IRA account the funds that I had saved in the 401(k) plan that I established at my former place of work. The third and final of those checks accomplished the roll-over in mid-January 2005 of approximately $25 in dividends that had accrued in a bond fund. Earlier today, curiosity got the best of me, so I checked online to see whether my 401(k) account was now completely empty. As it turns out, that very same bond fund on January 31, 2005 credited to my account dividends in the amount of $0.02. It will be interesting to see whether the bank that administers the 401(k) plan will undertake the expense and effort -- no doubt far in excess of two cents -- needed to roll-over my two cents to my IRA.
Posted at 11:20 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": This morning's broadcast contained segments entitled "Multimedia Display at Issue in Skakel Appeal"; "Senate to Consider Limiting Class Action Lawsuits"; and "Calif. Lawmakers' Plans Worry Same-Sex Couples." RealPlayer is required to launch these audio segments.
Posted at 11:04 by Howard Bashman



"High Court Review of Wetland Case Sought": The Associated Press reports here that "Property rights advocates are asking the Supreme Court to reconsider the case of a Michigan landowner who faces prison time and millions in fines for destroying wetlands on his property." Yesterday the organization Pacific Legal Foundation issued this press release concerning the case.
Posted at 10:20 by Howard Bashman



"Jordan headed back to court; Ex-lover's suit will go to jury": The Chicago Tribune today contains this article relating to Michael Jordan. And The Chicago Sun-Times reports today that "Court resurrects Jordan lawsuits."
Posted at 10:00 by Howard Bashman



"Justice Resnick expected to give up on DUI fight; Prosecutor says she'll change plea": This article appears today in The Cleveland Plain Dealer.

And The Toledo Blade today contains articles headlined "Resnick to change not guilty plea; Justice slated to be sentenced Monday in B.G. Municipal Court"; "Aide will chauffeur Resnick to, from Columbus; Justice's driver's license still under suspension"; and "Portable breath tester's accuracy rated inferior for use in court." The newspaper also contains an editorial entitled "A justice blows it."
Posted at 07:30 by Howard Bashman



In death row news from Connecticut: Today in The Hartford Courant, Lynne Tuohy reports that "Ross' Attorney Given A Week To Ponder Role." And an article reports that "Death Row Inmates On Hunger Strike."

And The Day of New London, Connecticut reports that "Judge Says Ross Evidence Was Withheld; State alleges public defenders failed to disclose killer's letters."
Posted at 07:25 by Howard Bashman



"President Bush's Proposed Same-Sex Marriage Amendment: Part One in a Series on Wise and Unwise Constitutional Amendments." Vikram David Amar and Alan Brownstein today have this essay online at FindLaw.
Posted at 07:24 by Howard Bashman



"Attorneys Feud in AmEx Card Case": Josh Gerstein has this article today in The New York Sun.
Posted at 07:22 by Howard Bashman



"Estes Park faces pledge lawsuit": Last Saturday's edition of The Rocky Mountain News contained an article that begins, "Estes Park Trustee David Habecker, who refuses to recite the Pledge of Allegiance at town meetings, on Friday sued his fellow town officials and a committee seeking to recall him."
Posted at 07:20 by Howard Bashman



"Cupertino teacher's claim untrue, district says": The San Jose Mercury News today contains an article that begins, "A teacher's claim that he was singled out for scrutiny because of his religious beliefs is untrue and his federal lawsuit against Cupertino Union School District officials should be dismissed, lawyers for the district said in court papers filed this week."
Posted at 07:20 by Howard Bashman



"House asks for court's opinion on Amendment Two": The Montgomery Advertiser today contains an article that begins, "With the unfinished work of erasing segregation-era language from the state constitution fresh on their minds, members of the Alabama House of Representatives voted Thursday to ask the state's highest court to weigh in on the matter."
Posted at 07:18 by Howard Bashman



"Sex crime label law is upheld; Florida's highest court rejected a Miami man's fight to stop the state from labeling him a sexual predator": This article appears today in The Miami Herald. You can access yesterday's 4-3 ruling of the Supreme Court of Florida at this link.
Posted at 07:15 by Howard Bashman



"The 60% Solution: Worried about the ACLU? Display only the commandments Jesus taught us." Gregg Easterbrook has this essay (free access provided) today in The Wall Street Journal.
Posted at 07:12 by Howard Bashman



"Senate Committee Passes New Lawsuit Rules": This article appears today in The New York Times.

The Washington Times reports that "Senate committee passes tort reform bill."

And The Atlanta Journal-Constitution reports that "Congress set to enact curbs on lawsuits."
Posted at 07:10 by Howard Bashman



"Bigamy law debated; Justices ask if statute should be used to prosecute polygamists": The Deseret Morning News contains this article today. And The Salt Lake Tribune contains an article headlined "Ban on plural marriage questioned; Personal beliefs? Attorney for ex-police officer asks the Utah Supreme Court to decriminalize polygamy, triggering a constitutional discussion."
Posted at 07:00 by Howard Bashman



"$152 million refund likely after high court tosses state's estate tax": This article appears today in The Seattle Times. And The Seattle Post-Intelligencer reports today that "Court kills state's 'death tax'; Budget shortfall just got deeper for lawmakers." Yesterday's ruling of the Washington State Supreme Court can be accessed at this link.
Posted at 06:44 by Howard Bashman



Thursday, February 03, 2005
The Washington Post is reporting: Friday's newspaper will contain a front page article headlined "Divided Senate Confirms Gonzales; Vote Reflects Concern Over Detainee Policy."

And today's newspaper contains an article headlined "In Detroit, Case of Rosa Parks Against Record Firms Wages On; Lawyers for Ailing Activist Press Suit Over OutKast Song Title."
Posted at 23:15 by Howard Bashman



Metropolitan News-Enterprise is reporting: Available online today are articles headlined "Crips Co-Founder, Nobel Nominee, Loses Challenge to Death Sentence as Court Denies En Banc Review" and "High Court to Review $500 Million Judgment for City of Hope."
Posted at 22:30 by Howard Bashman



"Gonzales Is Confirmed in a Closer Vote Than Expected": This article will appear Friday in The New York Times.
Posted at 22:12 by Howard Bashman



Available online from law.com: Marcia Coyle has an article headlined "Law Schools vs. Defense Department; Bush to appeal over military recruiting."

An article reports that "2nd Circuit Gives Guidance on Sentencing; Rules U.S. Supreme Court did not grant 'unfettered discretion' to trial judges."

Jeff Chorney reports that "9th Circuit Again Rejects Ex-Gang Leader's Death Penalty Appeal."

And in news from New York, "Spoliation Costs Plaintiff a Win in Bad-Tire Case."
Posted at 22:04 by Howard Bashman



"Donations to judge figure in court case": The St. Louis Post-Dispatch on Tuesday contained a very interesting article that begins, "In a new legal argument that some warn could bring the state's highly politicized judiciary to a standstill, the Illinois Supreme Court is being asked to disqualify one of its members from a case because he received political donations from one of the parties."
Posted at 21:10 by Howard Bashman



"Judge Allows U.S. Govt. to Appeal Guantanamo Ruling": Reuters provides this report. And The Associated Press reports that "Judge Gives OK for Detainees to See Papers." I have posted online today's order of the U.S. District Court for the District of Columbia at this link.
Posted at 20:30 by Howard Bashman



"Gonzales wins confirmation, will be first Hispanic attorney general": Frank Davies of Knight Ridder Newspapers provides this report.

The Washington Post provides a news update headlined "Senate Confirms Gonzales as Attorney General; First Hispanic Attorney General is Approved 60-36."

The Los Angeles Times provides a news update headlined "Senate Confirms Gonzales as Attorney General."

And this evening's broadcast of NPR's "All Things Considered" contained a segment entitled "Senate Votes to Confirm Gonzales" (RealPlayer required).

You can access the official U.S. Senate roll call tally at this link. Only six Democrats joined with 54 Republicans in voting to confirm. Three Democrats and one Republican did not vote.
Posted at 20:04 by Howard Bashman



"Gonzales Wins Confirmation as U.S. Attorney General": Reuters provides this report.
Posted at 17:55 by Howard Bashman



Jesse J. Holland of The Associated Press is reporting: He now has available online articles headlined "Senate OKs Gonzales As Attorney General" and "Senate Committee Works on Lawsuit Deal."

The vote approving Alberto R. Gonzales for the post of U.S. Attorney General was 60-36.
Posted at 17:20 by Howard Bashman



Reuters now recognizes she's not a he: In this revised report issued this afternoon, Reuters "Corrects pronoun referring to Judge Johnnie Rawlinson in the sixth and eighth paragraphs." My post from earlier today flagging this issue can be accessed here.
Posted at 17:12 by Howard Bashman



BREAKING NEWS -- Federal government receives permission to appeal to the D.C. Circuit from this week's unfavorable ruling in In re Guantanamo Detainee Cases: You can access today's order of the U.S. District Court for the District of Columbia at this link. Interestingly, I am told that the federal government only asked for this relief this morning, and the relief has apparently been granted in the absence of any response on behalf of the detainees.

Update: Over at "SCOTUSblog," Lyle Denniston reports that "Swift appeal set on detainees' rights."
Posted at 15:35 by Howard Bashman



News you heard first at "How Appealing": The Associated Press is reporting that "Court stays enforcement of ruling on college military recruiters." Of course, I first reported on the U.S. Court of Appeals for the Third Circuit's stay of its mandate in this post published on January 21, 2005.

In other Solomon Amendment-related news, The Washington Square News reports today that "JAG recruiters back on campus." And that newspaper today also contains an editorial entitled "NYU: Protest JAG Recruiters."
Posted at 14:55 by Howard Bashman



In news from Connecticut: The Associated Press reports that "Death Row Inmates Hold Hunger Strike."
Posted at 14:40 by Howard Bashman



In span of two days, two Sixth Circuit three-judge panels issue conflicting decisions regarding plain error review under United States v. Booker: Law Professor Douglas A. Berman, checking in from Milwaukee, provides these details.
Posted at 13:45 by Howard Bashman



"Senate Panel Backs Class Action Suit Bill": Reuters provides this report.
Posted at 12:10 by Howard Bashman



"Commandments the Almighty Decided to Drop in His Seventh Revision So As Not to Overwhelm His Chosen People": Derek Breen has this item online at McSweeney's Internet Tendency.
Posted at 11:30 by Howard Bashman



The final day of debate on the nomination of Alberto R. Gonzales to serve as U.S. Attorney General has just begun in the U.S. Senate: You can view the debate live online via C-SPAN2 by clicking here (RealPlayer required). The Senate is scheduled to vote on the nomination later today.
Posted at 11:20 by Howard Bashman



"Dems' strategy: 'Random acts of disorganization.'" In today's edition of The Hill, Byron York has an essay that begins, "Remember Bill Pryor? Priscilla Owen? Janice Rogers Brown?"
Posted at 11:00 by Howard Bashman



He said, she said: Not only did an early Reuters report on yesterday's Ninth Circuit order that denied rehearing en banc in the Stanley "Tookie" Williams death penalty case misstate the number of judges who joined in the dissent, but (as a reader has noted via email) that early report also misstated the gender of the dissenting judge. By later in the day, however, all references in the report to the dissenting judge's gender had been removed.
Posted at 09:45 by Howard Bashman



"Judge Upholds S.D. Mayoral Election; While contested ballots would make Donna Frye the victor, jurist affirms Dick Murphy, saying law on write-ins is more important": This article appears today in The Los Angeles Times. And The San Diego Union-Tribune reports today that "Re-election of Murphy will stand, judge rules; Quick decision turns aside challenges in mayoral race."
Posted at 08:28 by Howard Bashman



Bob Egelko is reporting: Today in The San Francisco Chronicle, he has articles headlined "Ideologues poised to kill social gains, rights leader says; Dems urged to bar picks for high court chief" and "State's highest court steps in; Genentech dispute over royalties to be heard by justices."
Posted at 07:33 by Howard Bashman



Invent your own caption: Reuters offers this photograph taken last night in the House Chamber in connection with the President's State of the Union Address.
Posted at 07:30 by Howard Bashman



"Chertoff defends tactics to fight terror": The Newark Star-Ledger contains this article today.

Newsday contains an article headlined "Focus: Stance on torture; Michael Chertoff, Bush's Homeland Security nominee, faces tough questions at Senate hearing."

David G. Savage of The Los Angeles Times reports that "Ridge's Likely Successor Welcomed; Senate panel shares its concerns about the state of Homeland Security with Bush's nominee."

The Washington Times reports that "Chertoff to weigh security, liberties."

The McClatchy Newspapers report that "Homeland Security nominee grilled on interrogations, detentions."

And The Cox News Service reports that "Nominee defends search for terrorists; Homeland security: Chertoff said he had no role in civil liberties lapses after the Sept. 11 attacks."
Posted at 07:25 by Howard Bashman



"Specter pushes asbestos bill to bar double-dipping": This article appears today in The Pittsburgh Post-Gazette.
Posted at 07:22 by Howard Bashman



"Did September 11 Cause a Constitutional Paradigm Shift? Why Conservatives Argue that It Did, and Why Their Views Are Likely to Have Some Lasting Effect." FindLaw columnist Edward Lazarus has this essay today.
Posted at 07:20 by Howard Bashman



"Legislators Call For Probe Of Judge Who Scolded Ross' Lawyer; Chatigny Is Accused Of Bullying To Obtain Delay In Killer's Execution": The Day of New London, Connecticut contains this article today.

The Hartford Courant -- sporting a quite lovely redesigned web page -- reports that "GOP Legislators Seek Action Against Chatigny."

And The Los Angeles Times reports that "Connecticut Debates a Death Wish; A convicted serial killer has his execution postponed against his will; The delays anger many in the state."
Posted at 07:18 by Howard Bashman



"Attorneys' antics test patience of court; Justices warn Martinez about his own behavior in court": This article appears today in The Deseret Morning News. And The Salt Lake Tribune reports today that "Attorney defending lawyer writes judge should be jailed; Justice Wilkins warns: Martinez 'dangerously close to getting in trouble.'"
Posted at 07:15 by Howard Bashman



"Consultation Needed to Make Judicial Nominations Process Work, Experts Say": The group civilrights.org posted this article online yesterday.
Posted at 07:14 by Howard Bashman



"Resnick breaks silence on DUI arrest; Justice extends 'regrets,' accepts 'full responsibility'": This article appears today in The Toledo Blade, which also contains articles headlined "Resnick likely won't face charge of fleeing police, trooper says; Prosecutor still reviewing evidence" and "Many judges have been on wrong side of bench."

The Dayton Daily News reports today that "Resnick takes 'full responsibility' for DUI arrest; State Supreme Court justice also expresses regret to Ohioans."

And The Cincinnati Post today contains an editorial entitled "The wrong side of the bench."
Posted at 07:10 by Howard Bashman



"Commandments monument coming to Biloxi": The Sun Herald contains this article today.
Posted at 07:05 by Howard Bashman



"Newdow protests Pledge of Allegiance": This article appeared yesterday in The Michigan Daily.
Posted at 07:00 by Howard Bashman



"A Nobel Nominee Faces Execution; U.S. 9th Circuit rejects appeal by convicted killer Stanley 'Tookie' Williams, who claimed bias in jury selection": Henry Weinstein has this article today in The Los Angeles Times.

In The San Francisco Chronicle, Bob Egelko reports that "Condemned murderer of 4 loses appeal of death sentence; He was nominated for Nobel Prize for his writings."

And in The San Jose Mercury News, Howard Mintz reports that "Death sentence appeal rejected; Nine judges sought new trial for killer."
Posted at 06:45 by Howard Bashman



Wednesday, February 02, 2005
"Class-Action Lawsuits": This editorial appears today in The New York Times.
Posted at 23:00 by Howard Bashman



"Chertoff Denies Advising on Interrogation Tactics; In Cordial Senate Hearing, Homeland Security Nominee Says He Did Not Discuss 'Hypothetical' Cases": Thursday's edition of The Washington Post will contain this article. And Thursday's issue of The New York Times will report that "Nominee Says U.S. Agents Abused Power After 9/11."

In related coverage, Newsweek this evening posted online an article headlined "Homeland Security Nominee to 'Come Out Swinging'; After sailing through confirmation hearings, Michael Chertoff must confront internal and external power struggles--all while protecting America from terrorist attack."
Posted at 22:55 by Howard Bashman



"Detainees' Endless Nightmare": This editorial appears today in The Los Angeles Times. And The Washington Post today contains an editorial entitled "Judicial Wake-Up Call."
Posted at 22:30 by Howard Bashman



Available online from law.com: Shannon P. Duffy reports that "Despite 'Glaring' Error, 3rd Circuit Upholds Arbitrator Award."

And in news from California, "Public Defender's Insanity Plea Gets Client New Hearing" and "Calif. Justices to Review $500 Million Judgment Against Genentech."
Posted at 22:20 by Howard Bashman



"House Urges Recruiting Decision Reversal": The Associated Press reports here that "The House on Wednesday urged the federal government to contest a court decision that would allow colleges to limit the activities of military recruiters on their campuses because of the military's ban on openly gay people." The House resolution, approved today by a vote of 327 to 84, can be accessed online at this link.
Posted at 22:12 by Howard Bashman



"A.C.L.U. Gains in Its Quest for C.I.A. Documents on Detainees": This article will appear Thursday in The New York Times.

Thursday's issue of Newsday will report that "CIA ordered to turn over prisoner records."

The Associated Press reports that "CIA Ordered to Turn Over Prisoner Records."

And Reuters reports that "CIA Must Turn Over Detainee Records - Judge."

In response to today's ruling of the U.S. District Court for the Southern District of New York, the ACLU has issued a press release entitled "Court Orders CIA to Comply With Request For Torture Records."
Posted at 22:00 by Howard Bashman



"Senators Appear Glad to Give Chertoff Homeland Post": David G. Savage of The Los Angeles Times provides this news update.
Posted at 21:58 by Howard Bashman



Metropolitan News-Enterprise is reporting: Available online today are articles headlined "Court to Rule En Banc on Racial 'Tiebreaker' in School Assignments"; "State Prison Mail Rules Are Held Unconstitutional by Ninth Circuit Panel"; and "Proposition 64 Not Retroactive, Court of Appeal Rules."
Posted at 20:55 by Howard Bashman



"Senate Committee Holds Hearings on Chertoff Nomination": This segment (RealPlayer required) appeared on this evening's broadcast of NPR's "All Things Considered."

Via C-SPAN, you can view at this link (RealPlayer required) today's confirmation hearing for Secretary of Homeland Security nominee, and Third Circuit Judge, Michael Chertoff.
Posted at 20:44 by Howard Bashman



"Gonzales' fingerprints all over un-American behavior": Joseph L. Galloway, senior military correspondent for Knight Ridder Newspapers, has this essay online today.
Posted at 18:25 by Howard Bashman



"Republican leaders want congressional probe of judge": In news from Connecticut, The Associated Press reports here that "Five top Republican state lawmakers on Wednesday asked Congress to investigate a federal judge's handling of appeals that eventually led to the postponement of Michael Ross' execution."
Posted at 18:22 by Howard Bashman



"Slate's Jurisprudence: Chertoff Faces Tough Questioning." This segment (RealPlayer required) appeared on today's broadcast of NPR's "Day to Day."

In other coverage, Reuters reports that "Security Nominee Defends Interrogation Advice." And Lara Jakes Jordan of The Associated Press reports that "Chertoff Pledges to Weigh Civil Liberties."
Posted at 17:30 by Howard Bashman



"We proceed cautiously in reaching this conclusion, mindful that it may appear, at first glance, to exempt the judiciary from any judicial review of its own employment actions, even with respect to charges of discrimination." A unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit today issued this interesting opinion affirming the dismissal of a lawsuit in which a former federal probation officer who had been employed in the Southern District of New York alleged race discrimination and denial of due process in his termination and sought to sue two U.S. District Judges and other court officials.
Posted at 17:00 by Howard Bashman



"Second Circuit begins process of implementing Booker/Fanfan": So the web site of the U.S. Court of Appeals for the Second Circuit announces with regard to this opinion issued today.
Posted at 16:54 by Howard Bashman



"Yale, funding, and the military": Over at "The Corner," you can read this "Memorandum from Yale Law School."
Posted at 16:22 by Howard Bashman



The wire services are reporting: From The Associated Press, David Kravets reports that "Court Clears Execution for Crips Founder." And an article is headlined "Judge: Yale Can Block Military Recruiters."

Meanwhile, Reuters reports that "Split Court Clears Way to Execute L.A. Gang Founder." And in other news, "Silica Issue Clouds Outlook for Asbestos Bill."
Posted at 16:15 by Howard Bashman



"Gay marriage in Canada -- from Court to Parliament": Lyle Denniston has this post online at "SCOTUSblog."

In related news, The Toronto Star today contains an article headlined "Liberals to speed debate on gay-marriage rights; Hope to win early vote on 'agreement in principle' by March; Cotler can't 'foresee how one can put amendments to this.'"
Posted at 15:55 by Howard Bashman



First the military, then the judiciary? Yale Law Professor Ian Ayres has an interesting post online at the blog "Balkinization" celebrating this week's Solomon Amendment ruling (here and here) from the U.S. District Court for the District of Connecticut. Toward the conclusion of his post, Ayres writes: "a much more important government employer of YLS graduates (i.e. judges) are never asked to sign the non-discrimination pledge. Should the law school faculty refuse to help the faculty send recommendations to employers who refuse to take the pledge?"
Posted at 15:50 by Howard Bashman



"Judge Chastises Attorneys in Bryant Case": The Associated Press provides this report.
Posted at 15:45 by Howard Bashman



"The High Court Cuts Back": Richard Leiby's "Reliable Source" column today in The Washington Post begins, "Financial hair-splitting? The Supreme Court, citing costs, has shut down its barbershop, which for decades served justices, staff and even the public. Barber Charlie Rollins, who has been cutting hair at the court for four years, told us his position was not renewed at the end of December but he never found out why." Word on the street is that several of the Justices will be cultivating the "Mad Professor" look for Spring 2005.
Posted at 15:40 by Howard Bashman



Online sex offender database isn't intended to be used as a dating service: The San Mateo County Times reported this past Saturday that "Offender woos man on crime database; Megan's Law plus Internet dating equals criminal arrest."
Posted at 15:20 by Howard Bashman



"When A Killer Wants To Die": CBS News legal analyst Andrew Cohen has this essay today.
Posted at 15:15 by Howard Bashman



"Dismissal of Teacher's Suit Sought": The Los Angeles Times today contains an article that begins, "Attorneys for the Cupertino Union School District asked a federal court to dismiss a lawsuit filed by an 'orthodox Christian' fifth-grade teacher who argued that he has a 1st Amendment right to give students handouts about the American founders' religious beliefs."
Posted at 15:12 by Howard Bashman



Divided Fourth Circuit panel grapples with a line of U.S. Supreme Court precedents that has been described by one highly regarded federal appellate judge as resembling "the path of a drunken sailor": The majority's opinion issued today begins, "Judy Bogart appeals from the district court's award of summary judgment on her procedural due process claim, initiated under 42 U.S.C. sec. 1983, in connection with the euthanization of more than two hundred dogs and cats seized from her residential property." You can access the complete ruling at this link.
Posted at 14:50 by Howard Bashman



"Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005": So the U.S. Court of Appeals for the Seventh Circuit has ruled today in an opinion written by Circuit Judge Frank H. Easterbrook.
Posted at 13:24 by Howard Bashman



Nine Ninth Circuit judges dissent from denial of rehearing en banc in a death penalty case involving a California death row inmate's challenge to the exclusion of black jurors: You can access today's order denying rehearing en banc, and the dissent therefrom, at this link. The three-judge panel's ruling, as amended, can be accessed here. The petitioner, Stanley "Tookie" Williams, received a 2001 Nobel Peace Prize nomination for his efforts opposing gang violence from his prison cell.
Posted at 13:05 by Howard Bashman



"Justice Resnick faces drunken-driving charge": The Cleveland Plain Dealer today contains an article that begins, "Ohio Supreme Court Justice Alice Robie Resnick drove away from police Monday soon after they confronted her on suspicion of drunken driving. Later, despite badly failing a portable breath test, Resnick insisted there was nothing wrong with her and repeatedly asked a state trooper to let her go."

In other coverage, The Toledo Blade reports today that "Justice Resnick charged with DUI; Judge drives away from police on I-75" and has posted online three police video segments (here, here, and here). Finally, The Dayton Daily News reports that "Justice charged with DUI; Resnick refused sobriety test, officers report."

Chris Geidner links here to police audiotapes consisting of calls from other drivers on the highway.
Posted at 12:30 by Howard Bashman



The Associated Press is reporting: Jesse J. Holland reports that "Senate Delays Vote on Gonzales Nomination." And Lara Jakes Jordan reports that "Chertoff Pledges to Weigh Civil Liberties."
Posted at 12:14 by Howard Bashman



"Court rules Web site not liable for attacks in anonymous forum": This article appeared yesterday in The Newark Star-Ledger. Declan McCullagh of c|net News.Com reports that "Court strengthens protections for Net chat groups." And The Associated Press reports that "Web site publisher not liable for content of e-messages, appeals court rules."

You can access at this link Monday's ruling of the Appellate Division of the Superior Court of New Jersey.
Posted at 11:05 by Howard Bashman



"Vindicating Gonzales: The growing consensus about Geneva." U.S. Senator John Cornyn (R-TX) has this essay today at National Review Online.
Posted at 10:20 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": This morning's broadcast contained segments entitled "Democrats Plan to Oppose Gonzales Confirmation" and "Hearings Begin for Homeland Security Nominee Chertoff" (RealPlayer required).
Posted at 10:15 by Howard Bashman



The confirmation hearing for Secretary of Homeland Security nominee, and Third Circuit Judge, Michael Chertoff is now underway: You can view the proceedings before the Senate Committee on Homeland Security and Governmental Affairs live online by clicking here (RealPlayer required).
Posted at 10:12 by Howard Bashman



"School battle to get another hearing": The Seattle Times today contains an article that begins, "The four-year legal battle between the Seattle School District and a group of parents over the use of race in school assignments will move into its fifth round, the 9th U.S. Circuit Court of Appeals announced yesterday."
Posted at 10:10 by Howard Bashman



One year ago, today: On Monday, February 2, 2004, I posted online "20 questions for the appellate judge" featuring Ninth Circuit Judge Stephen Reinhardt. That installment of the "20 questions" feature remains one of the most popular of those interviews. You can access Judge Reinhardt's interview online at this link.

Today is also the one-year anniversary of the date on which I opened my solo appellate boutique. The past year has been the most enjoyable, rewarding, and professionally fulfilling time that I have spent in the private practice of law.
Posted at 10:00 by Howard Bashman



In news from Virginia: The Washington Post reports today that "Kenneth Starr Argues Capital Case; Former Independent Counsel Handles Virginia Conviction." And The Richmond Times-Dispatch reports today that "Starr argues for inmate on death row; Attorney known for investigating Clinton appears in 4th Circuit."

Meanwhile, in other news, The Times-Dispatch reports today that "'Traditional marriage' plates backed; House vote is 62-35; foes say idea would create a 'political football' in an election year." And The Washington Times reports that "House OKs 'Traditional Marriage' plates."
Posted at 09:50 by Howard Bashman



"Wisdom of Solomon: The disgrace of blocking military recruiters from campus." This editorial (free access provided) appears today in The Wall Street Journal.
Posted at 09:40 by Howard Bashman



In news relating to Connecticut's death penalty volunteer: Today in The Hartford Courant, Lynne Tuohy reports that "'Conflict' Now Legal Focus In Ross Case." And a related article is headlined "Judge's Teleconference Has Experts Talking; Chatigny's Chastising Of Ross' Attorney Draws Both Outrage And Applause In Legal Circles." You can access a transcript of this quite remarkable teleconference at this link.
Posted at 07:40 by Howard Bashman



"Companies Get Weapon in Injury Suits": The New York Times today contains this article, which prominently quotes a former colleague of mine, Jared S. Garelick.
Posted at 07:37 by Howard Bashman



"Look at the Constitution, Please": Rush Limbaugh is still discussing the recent debate between Justices Antonin Scalia and Stephen G. Breyer over the role of international law in constitutional adjudication.
Posted at 07:35 by Howard Bashman



Ten Commandments news: The Arizona Republic reports today that "Arizona will back Texas in Commandments battle; State to file brief in highest court."

Meanwhile, from Indiana, The Princeton Daily Clarion reports today that "Judge says ten commandments monument must be moved." And The Journal Review of Crawfordsville reports that "Commissioners stall on issue of Ten Commandments."
Posted at 07:33 by Howard Bashman



"Black lawyer who defended white racist reveres Bill of Rights": Online at the First Amendment Center, David L. Hudson Jr. has this profile of attorney David P. Baugh.
Posted at 07:32 by Howard Bashman



"Justice Anthony Kennedy to Speak at St. Christopher's School's Leadership Symposium": St. Christopher's School issued this press release yesterday.
Posted at 07:30 by Howard Bashman



"Ginsburg praises women in law": Yesterday's edition of The Chronicle of Duke University contained this article.
Posted at 07:25 by Howard Bashman



"Law, Soc professors analyze the future of the Supreme Court": This article appeared yesterday in The Chicago Maroon.
Posted at 07:24 by Howard Bashman



"Chertoff Apt to Face Questions on Ethics; Stance on Lindh Interrogation at Issue": The Washington Post contains this article today.

USA Today contains an article headlined "White House: Chertoff didn't OK CIA tactics."

The Baltimore Sun reports that "Chertoff set to face Senate panel; Confirmation process of nominee for homeland security chief starts today."

And The Newark (N.J.) Star-Ledger reports today that "Chertoff faces questions on terror policies; White House says security nominee did not clear interrogation methods."

Today's confirmation hearing for Third Circuit Judge Michael Chertoff is scheduled to get underway at 10 a.m. before the Senate Committee on Homeland Security and Governmental Affairs. Once underway, you can view the hearing live online by clicking here (RealPlayer required).
Posted at 07:10 by Howard Bashman



"Democrats Extend Debate on Gonzales; Party's senators demand 10 hours of discussion on the attorney general nominee, whom they accuse of condoning the torture of prisoners": This article appears today in The Los Angeles Times.

The Boston Globe reports that "Democrats mobilize against Gonzales."

The Washington Times reports that "Senate leaders agree to take vote."

The Houston Chronicle reports that "Nominee Gonzales edges closer to confirmation; Dems consider filibuster, end up stalling final vote until Thursday."

The San Francisco Chronicle reports that "Democrats can't block attorney general pick; Senators attack Gonzales, but path is clear for confirmation."

Michael McGough of The Pittsburgh Post-Gazette reports that "Senate delays vote on Gonzales."

And The Toronto Star reports that "Democrats attack Gonzales; Say attorney-general candidate set stage for prison torture; Rule out Senate filibuster to thwart nomination of Bush ally."
Posted at 07:00 by Howard Bashman



"University bans JAG recruiters; Officials make judgment after court ruling": The Yale Daily News contains this article today. And The Hartford Courant reports that "Judge Lets Yale Ban Military." I have posted online here (part one) and here (part two) Monday's ruling of the U.S. District Court for the District of Connecticut.
Posted at 06:44 by Howard Bashman



Tuesday, February 01, 2005
"Gonzales Will Not Be Blocked; Senate Is Expected to Confirm Attorney General Nominee": This article will appear Wednesday in The Washington Post. Wednesday's edition of The New York Times will report that "Democrats Oppose a Gonzales Filibuster." And The Los Angeles Times offers a news update headlined "Democrats Delay Gonzales' Likely Confirmation."
Posted at 23:10 by Howard Bashman



In Wednesday's edition of The New York Times: An article will report that "For Frist, Tough Agenda and Conflicting Pressure." The article is accompanied by this graphic.

In other news, "Church Groups Turn to Sonogram to Turn Women From Abortions."

And in business news, "Building a Legal Case, Block by Block."
Posted at 23:00 by Howard Bashman



Ken Starr, in action: The Richmond Times-Dispatch offers a news update headlined "Kenneth Starr argues death row appeal here." And The Associated Press reports that "Starr Pleads Death Row Case Before Appeals Panel."
Posted at 22:58 by Howard Bashman



"What Is Death Row Syndrome? And who came up with it?" Slate today offers this explainer. And in related news, The New York Times reports today that "Killer's Fate May Rest on New Legal Concept."
Posted at 22:54 by Howard Bashman



"Ashcroft Calls for New Sentencing Legislation; Outgoing Attorney General says Congress should pass legislation toughening federal sentencing guidelines to counteract recent Supreme Court decision": The Los Angeles Times provides this news update. You can view outgoing U.S. Attorney General John Ashcroft's speech today by clicking here (RealPlayer required).
Posted at 22:40 by Howard Bashman



"High Court Ethereality: The nation's high court won't let cameras in its courtroom, but the justices can't stop bloggers from training their powers of demystification on the institution." Dahlia Lithwick has this quite wonderful essay in the February 2005 issue of The American Lawyer. The essay mentions both "How Appealing" and "SCOTUSblog."
Posted at 22:33 by Howard Bashman



"How Appealing" to host selected content from The Daily Journal of California: The Daily Journal Corporation publishes two impressive California-based daily legal periodicals -- the Los Angeles Daily Journal and the San Francisco Daily Journal -- whose content is available online only to subscribers. Beginning today, however, the Daily Journal will occasionally provide "How Appealing" with articles and commentary that are likely to be of interest to my readership.

I've long admired The Daily Journal's coverage both of legal developments in California and in Washington, DC. It's the only publication ever to have reported that I am "rumored to be a candidate for the 3rd U.S. Circuit Court of Appeals." And I remain quite fond of the profile of me the newspaper published in November 2003 under the headline "Attorney's Appellate-Law Blog Wins Readership; Readers Rave About Blog Devoted to Appellate Law."

To inaugurate this new feature, I'm pleased to have posted online an article published today in The Daily Journal bearing the headline "Brown questions precedent on race, jurors; The justice says the court created a stereotype by trying to protect black women from discrimination." The article reports on this ruling that the Supreme Court of California issued yesterday, in which D.C. Circuit nominee Janice Rogers Brown wrote both the majority opinion and a concurring opinion.
Posted at 22:15 by Howard Bashman



Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained a segment entitled "Senate Debates Gonzales Nomination."

Today's broadcast of "Day to Day" contained a segment entitled "Slate's Jurisprudence: Detainee Tribunals Challenged" featuring Dahlia Lithwick.

And today's broadcast of "Morning Edition" contained segments entitled "Debate over Malpractice Reform" and "Catholic School Challenges Enrollment of Gay Couple's Sons."

RealPlayer is required to launch these audio segments.
Posted at 19:15 by Howard Bashman



"Ashcroft delivers parting shot to foes on sentencing, Patriot Act": CNN.com provides this report. And Frank Davies of Knight Ridder Newspapers reports that "Ashcroft defends policies, regrets 'misunderstanding' on Patriot Act." You can view outgoing U.S. Attorney General John Ashcroft's speech today at The Heritage Foundation by clicking here (RealPlayer required).
Posted at 19:05 by Howard Bashman



"Are bloggers journalists? Do they deserve press protections? An Apple lawsuit against the operators of fan websites stirs debate on whether bloggers can claim legal protections." This article will appear Wednesday in The Christian Science Monitor.
Posted at 18:05 by Howard Bashman



"Supreme Chickens? The high court's Gitmo confusion comes home to roost." Slate has just posted online this jurisprudence essay by Dahlia Lithwick.
Posted at 18:00 by Howard Bashman



Not quite a federal holiday but close enough: Federal Rule of Civil Procedure 59(e) provides that "Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." Federal Rule of Civil Procedure 6(a), which governs computation of time under those rules, provides in pertinent part that "When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation." Rule 6(a) proceeds to define "legal holiday" as including various specified holidays and "any other day appointed as a holiday by the President or the Congress of the United States, or by the state in which the district court is held."

Today, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit was called on to decide whether Friday, December 26, 2003 would qualify as a "legal holiday" under the Federal Rules of Civil Procedure because the President gave federal workers the day off with pay even though he didn't declare that day an official holiday. Avoiding an outcome that the panel would have viewed as "positively Grinch-like," the Seventh Circuit concluded, in an opinion by Circuit Judge Richard A. Posner, that "when the President closes the government for celebratory or commemorative reasons * * * the presumption is that he has declared a legal holiday." This procedural holding allowed a group of female inmates of the Cook County Jail in Chicago to have the Seventh Circuit consider the merits of their appeal, and the inmates ended up winning that aspect of the appeal too.
Posted at 17:20 by Howard Bashman



Another reason for friends of Ray Luipa to rejoice: According to The Becket Fund for Religious Liberty (which monitors this type of stuff for its RLUIPA.org web site), a ruling that the U.S. Court of Appeals for the Seventh Circuit issued today "represents the first time that any federal appeals court has found a 'substantial burden' under Section 2(a)" of the Religious Land Use and Institutionalized Persons Act. Circuit Judge Richard A. Posner is the author of the ruling.
Posted at 17:15 by Howard Bashman



"Reid: Most Senate Democrats Oppose Gonzales." Reuters reports here that "Up to two thirds of the 45 Democrats in the Republican-led U.S. Senate prepared on Tuesday to oppose Alberto Gonzales as the next U.S. attorney general because of his role in helping craft policies they blame for contributing to the abuse of foreign detainees."
Posted at 17:05 by Howard Bashman



"Dems Won't Delay Gonzales Appointment": Jesse J. Holland of The Associated Press reports here that "Democrats won't try to filibuster Alberto Gonzales' nomination to be attorney general but will hold extensive debates in the Senate over his role in developing the Bush administration's policies on treating foreign detainees, the Senate's top Democrat said Tuesday."
Posted at 16:50 by Howard Bashman



"9th Circuit agrees to review diversity policy of Seattle schools": The Associated Press provides this report on today's grant of rehearing en banc. I linked to the relevant Ninth Circuit decisions in the case earlier this afternoon in this post.
Posted at 16:45 by Howard Bashman



"The Nuclear Option in the Senate: A Preemptive Strike for Absolute Power." Ralph G. Neas of the organization People For the American Way issued this memorandum to journalists today.

On the same subject, the current issue of the Harvard Journal of Law & Public Policy contains an article by Martin B. Gold and Dimple Gupta entitled "The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster."
Posted at 16:30 by Howard Bashman



U.S. District Court for the District of Connecticut declares Solomon Amendment unconstitutional in lawsuit brought by certain members of Yale Law School faculty: You can access the ruling online in two parts, here and here.
Posted at 14:45 by Howard Bashman



"Senate Democrats Ready to Fight Nominees": The Associated Press offers a report that begins, "Senate Democrats are 'not going to cut and run' from a battle over President Bush's judicial nominations, the party's leader vowed Tuesday, adding that some Democrats regret not having blocked even more appointments."
Posted at 14:40 by Howard Bashman



U.S. Court of Appeals for the Ninth Circuit grants rehearing en banc to consider the legality of the Seattle Public Schools' use of an explicit "racial tiebreaker" in choosing which student applicants it will admit to the City's most popular public high schools: This case already has a long history in the Ninth Circuit. Back in April 2002, a three-judge panel issued this decision and shortly thereafter enjoined the use of the tiebreaker.

Next, in June 2002, that three-judge panel vacated its ruling and injunction and instead certified an issue in the case to the Washington State Supreme Court.

Then, in June 2004, after Washington State's highest court answered the certified question, the three-judge Ninth Circuit panel issued its latest ruling again holding that the use of the tiebreaker was unlawful.

Finally, today, in an order you can access here, the Ninth Circuit granted rehearing en banc in the case.
Posted at 13:30 by Howard Bashman



"Time Management: Michael Chertoff's biggest weakness? His limited experience as a manager." Marisa Katz today has this essay online at The New Republic.
Posted at 13:23 by Howard Bashman



"Canada Unveils Explosive Gay Marriage Legislation": Reuters provides this report. And The Toronto Globe and Mail offers a news update headlined "Same-sex bill introduced in House of Commons."
Posted at 12:00 by Howard Bashman



"Chertoff Denies Advising CIA on Torture": Lara Jakes Jordan of The Associated Press provides this report.

Third Circuit Judge Michael Chertoff's confirmation hearing before the Senate Homeland Security and Governmental Affairs Committee is scheduled to occur tomorrow.
Posted at 11:54 by Howard Bashman



"Judge: Detainees Can Challenge Their Confinement; Administration Denounced For Guantanamo Practices." Josh Gerstein has this article today in The New York Sun. And the blog "Opinio Juris" discusses the ruling in posts you can access here, here, and here.
Posted at 10:45 by Howard Bashman



"Court lets alumni argue for reforms; Group wants changes at Milton Hershey": The Patriot-News of Harrisburg, Pennsylvania today contains an article that begins, "The Milton Hershey School Alumni Association has won the standing it needs to argue for reforms of the board that runs the Derry Twp. school for needy children. A 4-3 decision from the Commonwealth Court yesterday found that a lower court erred when it denied the alumni group its right to argue for changes."

Yesterday's ruling of the Commonwealth Court of Pennsylvania can be accessed at this link.
Posted at 09:30 by Howard Bashman



"Appeal Planned in Winnie the Pooh Case": The Associated Press provides this report.
Posted at 09:25 by Howard Bashman



In today's edition of The Los Angeles Times: An article reports that "Little Havana Hasn't Forgiven or Forgotten the Seizure of Elian; A lawsuit alleges that tear gas used when agents raided the boy's Miami home injured neighbors and bystanders."

In other news, "Verdict Creates Instant Millionaire; Nestle must pay a model $15.6 million for using his image without his consent; It will appeal."

An article reports that "Testimony Underway in San Diego Election Case."

Law Professors Robert J. Delahunty and John C. Yoo have an op-ed entitled "Rewriting the Laws of War for a New Enemy; The Geneva Convention isn't the last word."

And David Feige has an op-ed entitled "A Prison Without Hope Is a Dangerous Place."
Posted at 09:15 by Howard Bashman



"Guantanamo ruling slams tribunals": This article appears today in The Chicago Tribune.

The Boston Globe reports that "Judge rules detainees have right to lawyers."

The Los Angeles Times reports that "Judge Grants Captives Access to U.S. Courts."

The Miami Herald reports that "Captives gain right to sue; A federal judge cleared the way for some Guantanamo Bay detainees to have their habeas corpus petitions heard in civilian U.S. court."

The Washington Times reports that "Rights of Gitmo prisoners upheld."

The Toronto Globe and Mail reports that "Guantanamo tribunals ruled unconstitutional."

And The Guardian (UK) reports that "Guantanamo tribunals ruled illegal."
Posted at 07:25 by Howard Bashman



"Anti-predatory lending law tossed out; Looser state statute pre-empts city's, high court rules": Bob Egelko has this article today in The San Francisco Chronicle. And The Los Angeles Times reports that "Court Rejects L.A., Oakland Predatory Lending Laws."
Posted at 07:22 by Howard Bashman



"Civil suit in Elian raid wraps up; Sides trade claims on federal agents' use of force": The South Florida Sun-Sentinel contains this article today.
Posted at 07:20 by Howard Bashman



"Former student's appeal uncertain": The Advocate of Baton Rouge, Louisiana today contains an article that begins, "An attorney for a former East Ascension High School student expelled for drawing a picture depicting the school under a violent siege said a civil liberties group that is underwriting the case will decide whether to appeal to the U.S. Supreme Court."
Posted at 07:18 by Howard Bashman



"Marriage plate nearing passage; A traditional marriage plate gains a tentative OK in the House with opponents saying it will open the door for a gay rights plate in the future": This article appears today in The Daily Press of Hampton Roads, Virginia. And The Richmond Times-Dispatch today contains an article headlined "No harmony on marriage plates; Proposal in House would create special license plates endorsing traditional unions."
Posted at 07:15 by Howard Bashman



"State says marker doesn't endorse religion": Allen Pusey of The Dallas Morning News has this article today. The Montgomery Advertiser reports today that "Moore joins battle before high court." And those readers who would like to access a U.S. Supreme Court brief, filed in one of the Ten Commandment cases, containing lots of pictures but none of those pesky citations to law should click here.

In other Ten Commandments-related news, The Indianapolis Star reports today that "Atheists may bid for land to prevent monument." And The Daily Advertiser of Lafayette, Louisiana reports today that "Religious monument to make stop in Crowley."
Posted at 07:05 by Howard Bashman



"Sentence length at issue in ex-Dynegy exec's case; Supreme Court decision changes rules, lawyer says": The Houston Chronicle contains this article today.

And in somewhat related coverage, The Rocky Mountain News reports today that "High court gets capital cases."
Posted at 07:00 by Howard Bashman



"Perks embarrass the bench: Judges accept gifts and trips, undermining public confidence." This editorial appears today in USA Today. In response, that newspaper today published an op-ed entitled "Judges guard impartiality: Let ethics, not a blanket prohibition, guide gift policy" by U.S. District Judge Gordon J. Quist.
Posted at 06:55 by Howard Bashman



"State Justice charged with driving under the influence": The Associated Press provides this report from Ohio.
Posted at 06:45 by Howard Bashman



"The Supreme Court Upholds Suspicionless Dog Sniffs": FindLaw columnist Michael C. Dorf has this essay today.
Posted at 06:30 by Howard Bashman







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