How Appealing

Saturday, February 28, 2015

"Two reading lessons from the Supreme Court": Columnist George F. Will has this essay online at The Washington Post.
Posted at 10:52 PM by Howard Bashman


"Got a robe? Minnesota Supreme Court applicants sought." The Pioneer Press of St. Paul, Minnesota has this report.
Posted at 10:48 PM by Howard Bashman


"Before Justices Rule, Floridians Consider Life Without Health Subsidies": This article will appear in Sunday's edition of The New York Times. In addition, the newspaper will contain an editorial titled "The Phony Legal Attack on Health Care."

And The Washington Post reports that "At least 6 Republican states revisit their stance of resisting Obamacare."
Posted at 10:42 PM by Howard Bashman



"Menendez aides attempt to avoid testifying in grand jury probe of senator, report says": NJ.com has this report on a non-precedential opinion that the U.S. Court of Appeals for the Third Circuit issued yesterday.

The New Jersey Law Journal reports in great detail on the ruling in an article headlined "Court Orders Hearing on Whether Menendez Aides Must Testify." You can freely access the full text of this article via Google News.

The non-precedential opinion, bearing the legend "Under Seal," appeared online available for public download for a short time yesterday at the Third Circuit's web site before the court removed it.
Posted at 04:46 PM by Howard Bashman



"Netflix Beats Antitrust Class Action at Appeals Court; No support for subscriber injuries from a Netflix-Walmart pact means the lawsuit falls like a collapsing house of cards": Eriq Gardner had this post yesterday at the "Hollywood, Esq." blog of The Hollywood Reporter.

Richard Lawler of Engadget has a post titled "Walmart vs. Netflix DVD battle snags $12 each for 1.2 million people."

And Courthouse News Service reports that "Walmart Settlement on Netflix Antitrust Upheld."

The U.S. Court of Appeals for the Ninth Circuit yesterday issued two related rulings in these appeals, which you can access here and here.
Posted at 04:37 PM by Howard Bashman



"Appeals court denies latest Tsarnaev request to move trial": Milton J. Valencia and Jeremy C. Fox have this article in today's edition of The Boston Globe.

The Boston Herald has an article headlined "Tsarnaev trial stays in Boston; Court: Media attention won't affect fairness."

The Associated Press reports that "Marathon bombing trial stays in Boston, federal panel says."

Reuters reports that "U.S. appeals court says Boston bomber trial can stay in city."

And Bloomberg News reports that "Boston Bombing Suspect Loses Bid to Move March Trial."

You can access yesterday's ruling of a divided three-judge panel of the U.S. Court of Appeals for the First Circuit at this link.
Posted at 03:54 PM by Howard Bashman



"The Letter of the Law: Two perspectives on the Supreme Court case that could bring the Affordable Care Act to its knees." You can access today's new installment of Slate's "Amicus" podcast featuring Dahlia Lithwick via this link.
Posted at 03:36 PM by Howard Bashman


"Mid-air irony: 9/11 victim's son aids stricken attorney of attack's alleged planner." Earlier this week, Carol Rosenberg had an article that begins, "When an attorney for the alleged mastermind of the Sept. 11, 2001, attacks suddenly collapsed on a recent war court airplane shuttle, only one passenger was equipped to offer emergency care -- a young man whose father was killed at the World Trade Center on 9/11. He turned first responder without hesitation."

And yesterday, Rosenberg had an article headlined "Pentagon scraps judges' Guantanamo move order; 9/11 case unfrozen."
Posted at 03:25 PM by Howard Bashman



"Argument preview: The Confrontation Clause, once more." Lyle Denniston has this post today at "SCOTUSblog."
Posted at 03:18 PM by Howard Bashman


"Adoption by same-sex parent recognized by Alabama appeals court after decision reversal": Kent Faulk of The Birmingham News has this report.

And Reuters reports that "Adoption by same-sex parent recognized by Alabama appeals court."

You can access yesterday's ruling of the Alabama Court of Civil Appeals at this link.
Posted at 03:14 PM by Howard Bashman



"Fisherman's high court win spurs call for legal reform": Sam Hananel of The Associated Press has this report.
Posted at 02:58 PM by Howard Bashman


"Sentence reduced for 2 Supreme Court demonstrators": The Associated Press has a report that begins, "Two protesters who pleaded guilty to demonstrating inside the Supreme Court have had their sentences reduced from five days in jail to one."
Posted at 02:55 PM by Howard Bashman


Friday, February 27, 2015

"No action from feds as immigration case timeline slips": Josh Gerstein and Edward-Isaac Dovere of Politico.com has this blog post.
Posted at 09:56 PM by Howard Bashman


"What's in a name? A lot, the Supreme Court says." Al Kamen's "In the Loop" blog at The Washington Post has this post today.
Posted at 08:50 PM by Howard Bashman


"High Court's History With Rough Amici Could Save Foley Atty": Andrew Strickler of Law360.com had this report (subscription required for full access) yesterday evening.
Posted at 08:40 PM by Howard Bashman


"The Jurisprudence of Justice Antonin Scalia: A Response to Professor Bruce Allen Murphy and Professor Justin Driver." Law professor Steven G. Calabresi and Justin R. Braga have posted this lengthy book review online at SSRN (via this post at "Josh Blackman's Blog," which collects many noteworthy excerpts).
Posted at 05:36 PM by Howard Bashman


"Federal Judge Mark Fuller awaiting recommendation on whether he should keep job": Kent Faulk of The Birmingham News has an article that begins, "U.S. District Court Judge Mark Fuller is waiting to hear whether a special judicial committee will recommend he keep or lose his job after a recent three-day hearing in which witnesses testified about allegations Fuller beat his wife last August, his attorney said Thursday."
Posted at 05:03 PM by Howard Bashman


"Gay marriage proponents claim 'right side of history'": Richard Wolf of USA Today has this report.
Posted at 04:02 PM by Howard Bashman


"Constitution Check: Does anybody in Washington have a duty to save Obamacare?" Lyle Denniston had this post yesterday at the "Constitution Daily" blog of the National Constitution Center.
Posted at 02:01 PM by Howard Bashman


"Obamacare threatens to end John Roberts's dream of a nonpartisan Supreme Court": Robert Barnes will have this news analysis in Sunday's edition of The Washington Post.
Posted at 01:56 PM by Howard Bashman


"James Blumstein on the Administration, the IRS and the ACA: Will the courts rein in the president's pen?" This guest post appears today at "The Volokh Conspiracy."
Posted at 01:47 PM by Howard Bashman


The audio from this week's U.S. Supreme Court oral arguments is now available online: You can access it via this link.
Posted at 01:46 PM by Howard Bashman


"'I have my own theory about who killed my son.' Father of Harvard-educated professor shot in the head in his own garage by mystery gunman finally speaks out." The Daily Mail (UK) has this report today.
Posted at 12:51 PM by Howard Bashman


"King v. Burwell: U.S. Supreme Court Preview of the Next Challenge to the Affordable Care Act." The Federalist Society hosted this event (YouTube video link) yesterday.
Posted at 12:23 PM by Howard Bashman


"Supreme Court of Texas holds court at UT Tyler, visits students": Today's edition of The Tyler Morning Telegraph contains an article that begins, "The Supreme Court of Texas, the highest court in the state, heard oral arguments at The University of Texas at Tyler's University Center on Thursday morning, then toned down the formalities by eating with the high school and college students attending."
Posted at 08:26 AM by Howard Bashman


"Ohio Supreme Court chief justice lays out plan to bolster judicial elections": The Cleveland Plain Dealer has this report.
Posted at 08:20 AM by Howard Bashman


"Kate Shaw Joins ABC News Covering Supreme Court, Legal Issues On Hill": Deadline.com has this report.
Posted at 08:15 AM by Howard Bashman


"Their reasons differ, but 3 Mississippi justices object to delaying same-sex divorce ruling": The Associated Press has this report on an order that the Supreme Court of Mississippi issued yesterday.
Posted at 08:14 AM by Howard Bashman


"New charges for group that disrupted Supreme Court with Citizens United protest": The Associated Press has this report.
Posted at 08:04 AM by Howard Bashman


"Tsarnaev friend could be freed under Supreme Court ruling": Milton J. Valencia and John R. Ellement of The Boston Globe have this report.
Posted at 08:02 AM by Howard Bashman


"Supreme Court chief justice likely to back healthcare law": Brianne J. Gorod has this op-ed in today's edition of The Los Angeles Times.
Posted at 08:00 AM by Howard Bashman


"Supreme Court to decide who can draw maps for Congress": Richard Wolf of USA Today has this report.
Posted at 07:56 AM by Howard Bashman


Thursday, February 26, 2015

"Courtney Love Fails to Get an Appeals Court to Dispense Defamation Lawsuit; The singer/actress is neither Marlon Brando nor a free speech crusader": Eriq Gardner has this post at the "Hollywood, Esq." blog of The Hollywood Reporter.

You can access today's unpublished ruling of California's 2nd District Court of Appeal at this link.
Posted at 11:16 PM by Howard Bashman



"'Sniper' Case Is Headed to Appeal, Lawyers Say": Manny Fernandez will have this article in Friday's edition of The New York Times.
Posted at 11:10 PM by Howard Bashman


"New Eleventh Circuit Judges Get Official Welcome": Alyson Palmer of The Fulton County Daily Report has this article.

You can freely access the full text of the article via Google.
Posted at 10:50 PM by Howard Bashman



"A Litmus Test for ObamaCare and the Rule of Law: The president has ignored the law's plain language; Now the Supreme Court decides if that's all right." Ilya Shapiro and Josh Blackman will have this op-ed in Friday's edition of The Wall Street Journal.

You can freely access the full text of the op-ed via Google.
Posted at 10:40 PM by Howard Bashman



"Justices on the stage: Why Americans are increasingly fascinated by their highest court." David Rennie has this essay in the February 28, 2015 issue of The Economist magazine.
Posted at 09:14 PM by Howard Bashman


"Can life in prison be worse than death? Some Tsarnaev jurors think so." Masha Gessen of The Washington Post has this report.
Posted at 08:55 PM by Howard Bashman


"2nd Circuit was right to curtail insider trading cases: profs' amicus brief." Alison Frankel's "On the Case" from Thomson Reuters News & Insight has this report today.

One of the amicus briefs to which Frankel's article links discloses that Reed Smith practices law at Cooley LLP. And, demonstrating that turnabout is fair play, a Google search discloses that Cooley practices law at Reed Smith LLP.
Posted at 08:50 PM by Howard Bashman



"Can Tom Wolf really kill the death penalty?" Philadelphia Weekly has this report.
Posted at 08:40 PM by Howard Bashman


"Book review: Law professor, feminist, and jurist extraordinaire." Today at "SCOTUSblog," Barbara Babcock has this review of the new book "The Legacy of Ruth Bader Ginsburg."

And yesterday at "Hamilton & Griffin on Rights," Scott Dodson had a post titled "Why I Edited This Book: Scott Dodson, The Legacy of Ruth Bader Ginsburg."
Posted at 08:30 PM by Howard Bashman



"Supreme Court Justice Talks Constitution, Structure Of Government During Fort Smith Visit": The Times Record of Fort Smith, Arkansas has this news update.
Posted at 08:21 PM by Howard Bashman


The Missouri Law Review symposium issue celebrating the late Anthony Lewis and exploring the future of legal journalism is now available online: You can access the contents via this link.

The issue includes Adam Liptak's keynote address and articles written by, among others, Lincoln Caplan ("Anthony Lewis: What He Learned at Harvard Law School"); Lyle Denniston ("Anthony Lewis: Pioneer in the Court's Pressroom"); Linda Greenhouse ("The Rigorous Romantic: Anthony Lewis on the Supreme Court Beat"); Dahlia Lithwick ("Anthony Lewis"); Howard Mintz ("Legal Journalism Today: Change or Die"); Gene Policinski ("Setting the Docket: News Media Coverage of Our Courts -- Past, Present and an Uncertain Future"); David A. Sellers ("As Today's Tony Lewises Disappear, Courts Fill Void"); and former Missouri Chief Justice Michael A. Wolff ("Making Judge-Speak Clear Amidst the Babel of Lawspeakers").

And for those who like to watch, you can access videos from the symposium -- which occurred a little over one year ago -- via this link.
Posted at 08:00 PM by Howard Bashman



"Roberts at 10: Turning Back the Clock on Protections for Racial Equality." David H. Gans has this issue brief online at the Constitutional Accountability Center.
Posted at 06:17 PM by Howard Bashman


"Supreme Court protesters say no plans to disrupt Obamacare case": Lawrence Hurley of Reuters has this report.
Posted at 06:09 PM by Howard Bashman


"If Supreme Court says no, they'd lose health insurance help": The Associated Press has this report.
Posted at 01:50 PM by Howard Bashman


"Federal appeals court orders Alan Newton be paid $18.5 million for wrongful rape conviction": The New York Daily News has this report.

And Jonathan Stempel of Reuters reports that "U.S. court restores $18 million award to man freed in NYC rape case."

You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 01:48 PM by Howard Bashman



"Cop who spoke out against arrest quotas can sue NYPD: court." The New York Post has this news update.

The New York Daily News has an article headlined "NYPD cop who blew whistle on quota system can pursue suit against city: Federal Appeals court."

And The Associated Press reports that "NYC police officer's lawsuit over arrest quotas gets revived."

You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 01:44 PM by Howard Bashman



"S.C. Supreme Court freezes James Brown estate case": This front page article appears in today's edition of the Aiken Standard.
Posted at 01:33 PM by Howard Bashman


"South Carolina court orders J&J to pay $136 mln in Risperdal case": Reuters has this report on a ruling that the Supreme Court of South Carolina issued yesterday.
Posted at 01:32 PM by Howard Bashman


"The Alternative Reality of King v. Burwell": Rob Weiner had this post yesterday at "ACSBlog."
Posted at 01:25 PM by Howard Bashman


"How a federal judge pushed Big Tobacco into $100 mln deal with smokers": Alison Frankel's "On the Case" from Thomson Reuters News & Insight yesterday had a report that begins, "In July 2013, a federal appeals court overseeing thousands of individual smokers' suits against Philip Morris USA, R.J. Reynolds and Lorillard threw up its hands in defeat."
Posted at 01:22 PM by Howard Bashman


"US Supreme Court says NC dental board can't regulate teeth whitening": The News & Observer of Raleigh, North Carolina has this report.

In today's edition of The New York Times, Adam Liptak reports that "Justices Find Antitrust Law Valid Against Dental Board." In addition, Vikas Bajaj has a "Taking Note" essay titled "A Plot to Keep Teeth Whitening Expensive."

David G. Savage of The Los Angeles Times reports that "Supreme Court restricts state license schemes that limit competition."

Richard Wolf of USA Today has an article headlined "Justices: Dentists can't decide who whitens your teeth."

Brent Kendall of The Wall Street Journal has an article headlined "Supreme Court Affirms FTC Antitrust Authority Over Licensing Boards; Decision protects power of regulators to scrutinize such professional panels." You can freely access the full text of the article via Google.

Michael Doyle of McClatchy Washington Bureau has a blog post titled "Supreme Court says 'open wide' to North Carolina teeth-whitening business."

Greg Stohr of Bloomberg News reports that "Professional Boards Opened to New Scrutiny by Top U.S. Court."

Lawrence Hurley of Reuters reports that "U.S. top court says state dental board can't regulate teeth whitening."

And Nina Totenberg of NPR has a blog post titled "Dentists Have No Right To Limit Who Can Whiten Your Teeth, Justices Say."
Posted at 08:16 AM by Howard Bashman



"Poster Child: How Terrance Williams became the face of the death penalty debate in Pennsylvania." Andrew Cohen has this essay online today at The Marshall Project.
Posted at 08:06 AM by Howard Bashman


"Future of 'mental anguish' law at stake in federal court": The Associated Press has a report that begins, "Mumia Abu-Jamal, who's serving a life term for the 1981 murder of a Philadelphia police officer, is among the plaintiffs asking a federal judge to block a Pennsylvania law they say violates prisoners' free-speech rights."
Posted at 08:02 AM by Howard Bashman


"Obamacare defense is tailored for key Supreme Court justices": David G. Savage has this article in today's edition of The Los Angeles Times.

And David Nather and Jennifer Haberkorn of Politico.com report that "Supreme Court ruling could upturn Obamacare politics."
Posted at 07:58 AM by Howard Bashman



Wednesday, February 25, 2015

"Does a website for models have a duty to warn users about rapists? Facebook, Craigslist, eBay fear a chilling effect on Web operators." David Kravets of Ars Technica has this report today.

My earlier coverage of yesterday's Ninth Circuit panel rehearing order can be accessed here.
Posted at 10:16 PM by Howard Bashman



"How the Supreme Court Could Save Obamacare Again": Law professor Noah Feldman has this essay online today at Bloomberg View, along with a related essay titled "How Dr. Seuss Could Save Obamacare."
Posted at 09:20 PM by Howard Bashman


"More on the Howard Shipley matter": John Steele has this post today at his blog, "Legal Ethics Forum."
Posted at 12:56 PM by Howard Bashman


"Justices appear to favor Muslim denied job over headscarf": Mark Sherman of The Associated Press has this report.
Posted at 12:50 PM by Howard Bashman


"BP appeals U.S. judge's ruling on size of Gulf oil spill": Reuters has a report that begins, "BP Plc on Monday appealed a federal judge's finding of the size of the 2010 Gulf of Mexico oil spill, which leaves the company potentially liable to pay $13.7 billion in fines."
Posted at 10:32 AM by Howard Bashman


"Federal judge indicates he intends to allow eight released from prison in Amish beard-cutting case to remain free": The Cleveland Plain Dealer has this report.
Posted at 10:30 AM by Howard Bashman


Access online today's rulings of the U.S. Supreme Court in argued cases: The Court today issued two rulings in argued cases.

1, Justice Ruth Bader Ginsburg announced the judgment of the Court and delivered an opinion, in which Chief Justice John G. Roberts, Jr. and Justices Stephen G. Breyer and Sonia Sotomayor joined, in Yates v. United States, No 13-7451. Justice Samuel A. Alito, Jr. issued an opinion concurring in the judgment. And Justice Elena Kagan issued a dissenting opinion, in which Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas joined. You can access the oral argument via this link.

2. And Justice Kennedy delivered the opinion of the Court in North Carolina State Bd. of Dental Examiners v. FTC, No. 13-534. Justice Alito issued a dissenting opinion, in which Justices Scalia and Thomas joined. You can access the oral argument via this link.

In early news coverage, The Associated Press has reports headlined "Justices: Fisherman is off the hook in grouper-tossing case" and "Supreme Court drills dentists in teeth-bleaching dispute."
Posted at 10:06 AM by Howard Bashman



"The latest Obamacare challenge: What you need to know." Ariane de Vogue of CNN.com has this report.
Posted at 08:47 AM by Howard Bashman


"U.S. Supreme Court decides water dispute": This front page article appears in today's edition of The Lincoln Journal Star.

The Omaha World-Herald reports that "Nebraska should pay Kansas $5.5M over river dispute, Supreme Court says."

And at Forbes.com, Daniel Fisher has a post titled "Thomas, Scalia Use Obscure Water Battle To Tweak The Majority."
Posted at 08:45 AM by Howard Bashman



"High Court Appears Ready to Allow Felon to Sell Gun Collection; Decision in the case, Henderson v. U.S., is expected before July": Jess Bravin of The Wall Street Journal has this report. You can freely access the full text of the article via Google.

Lawrence Hurley of Reuters reports that "Gun ownership rights appear to be moving target for U.S. justices."

Sam Hananel of The Associated Press reports "High court weighs right of convicted felon to sell guns."

And Stephanie Condon of CBSNews.com has a report headlined "The 25-year-olds shaping the Supreme Court docket."

You can access at this link the transcript of yesterday's U.S. Supreme Court oral argument in Henderson v. United States, No. 13-1487.
Posted at 08:36 AM by Howard Bashman



"Supreme Court Receptive to Investors in 401(k) Case; Justices suggest appeals court was wrong in Edison suit": Brent Kendall of The Wall Street Journal has this report. You can freely access the full text of the article via Google.

David G. Savage of The Los Angeles Times reports that "Supreme Court poised to protect employees from high fees in 401(k) plans."

Lawrence Hurley of Reuters reports that "U.S. justices signal support for plaintiffs in Edison 401(k) case."

Greg Stohr of Bloomberg News reports that "U.S. High Court Hints at New Monitoring Rules for 401(k) Plans."

And Mark Sherman of The Associated Press reports that "Justices signal support for investors in 401(k) lawsuits."

You can access at this link the transcript of yesterday's U.S. Supreme Court oral argument in Tibble v. Edison Int'l, No. 13-550.
Posted at 08:26 AM by Howard Bashman



"'Torture Report' Reshapes Conversation In Guantanamo Courtroom": This audio segment appeared on today's broadcast of NPR's "Morning Edition."
Posted at 08:17 AM by Howard Bashman


"Supreme Court to hear case of woman who wasn't hired because of head scarf": Robert Barnes has this article in today's edition of The Washington Post.

Warren Richey of The Christian Science Monitor has an article headlined "Supreme Court to hear Abercrombie headscarf case: What's at stake?"

The Guardian (UK) reports that "US supreme court hears Abercrombie & Fitch religious discrimination case."

Mark Sherman of The Associated Press reports that "Justices weigh case of Muslim denied job over headscarf."

Ariane de Vogue of CNN.com reports that "Supreme Court to hear religious freedom case."

Paul Barrett of Bloomberg News reports that "This Supreme Court Case Unites Religions Against Abercrombie & Fitch; The retailer faces a religious-bias challenge for rejecting an applicant who wore a hijab."

And at FiveThirtyEight, Oliver Roeder has a report headlined "Previewing The Supreme Court's Abercrombie & Fitch Case."
Posted at 08:15 AM by Howard Bashman



Tuesday, February 24, 2015

Ninth Circuit opts for more Model Mayhem: Today, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit granted panel rehearing in the case captioned Jane Doe No. 14 v. Internet Brands, Inc. dba Modelmayhem.com. You can access today's order at this link.

In coverage of today's order, Scott Graham of The Recorder reports that "Ninth Circuit Agrees to Revisit Ruling in Model Rape Case." You can freely access the full text of the article via Google.

The very same three-judge Ninth Circuit panel issued its original, unanimous ruling in the case on September 17, 2014. My earlier coverage of that ruling appears here and here.

Writing at the "Technology & Marketing Law Blog," Venkat Balasubramani discussed the Ninth Circuit's original ruling in a post titled "9th Circuit Creates Problematic 'Failure To Warn' Exception to Section 230 Immunity -- Doe 14 v. Internet Brands."
Posted at 11:28 PM by Howard Bashman



"Homeless man wins legal victory in Henrico panhandling case": The Richmond Times-Dispatch has this report on a ruling that the U.S. Court of Appeals for the Fourth Circuit issued today.
Posted at 11:09 PM by Howard Bashman


"Practice Points: Dr. Schindler's 'Absolut Schrecklich' Supreme Court Petition Snares Howard Shipley, Or, Learned German Does Not Make Legal English." James Ching has this interesting essay online at law.com.

Discussing the attorney's response to the U.S. Supreme Court's order to show cause, Ching writes:

Unaddressed are two major issues. First, was it a violation of professional principles to allow Schindler to write briefs so bad that they would prejudice his case? Schindler obviously had no idea that his briefs were utterly terrible, and as Schindler's lawyer, Shipley had the duty to counsel him they were, mildly-put, inadvisable. Shipley had two previews of this bad writing in the Circuit and his explanation that the Circuit did not take offense simply does the answer the direct question of Shipley's own professional responsibility to his client.

Secondly, it is clear that Shipley materially aided Schindler in the unauthorized practice of law, issuing the petition under his, not Schindler's signature. In this light, it was a grievous lack of candor to simply acknowledge in a footnote that Schindler "should be recognized for his significant contributions to this Petition." Moreover, argumentation, whether live or in briefs, is uniformly restricted to licensed attorneys, and the Petition is a prime example of what happens when the inmates rule the asylum.

And at the blog "Legal Ethics Forum," John Steele recently had a post titled "Foley partner files response to SCOTUS regarding unorthodox amicus brief." Although Steele can be faulted for thinking that this matter involved the filing of an amicus brief, his post has attracted some interesting comments. In particular, Neal Goldfarb (author of the "LAWnLinguistics" blog) has a very interesting comment.
Posted at 11:00 PM by Howard Bashman


"New Orleans tour guides' licensing fight turned away by U.S. Supreme Court": The Times-Picayune of New Orleans has this report.
Posted at 10:30 PM by Howard Bashman


"Military court's HIV ruling may have larger impact": Michael Doyle of McClatchy Washington Bureau has this report.

You can access my earlier coverage of yesterday's U.S. Court of Appeals for the Armed Forces ruling at this link.
Posted at 10:24 PM by Howard Bashman



"Judge rejects feds' timetable on immigration case": Josh Gerstein of Politico.com has this report.
Posted at 09:12 PM by Howard Bashman


"Administration: No quick fix if court kills health subsidies." The Associated Press has this report.

Reuters reports that "U.S. health official says no fix if Obamacare subsidies thrown out."

In Wednesday's edition of The New York Times, Robert Pear will have an article headlined "Congress Is Told Ruling Against Health Law Would Impact Poor."

And at "SCOTUSblog," Lyle Denniston has a post titled "U.S.: It has no fix if Court nullifies health care subsidies."
Posted at 09:02 PM by Howard Bashman



"Argument preview: Faith and a workplace dress code." Lyle Denniston has this post today at "SCOTUSblog."
Posted at 08:54 PM by Howard Bashman


"Supreme Court rules Neb. must pay Kan. in interstate river battle": Jeremy P. Jacobs of Greenwire has this report.
Posted at 04:07 PM by Howard Bashman


"Court nixes Occupy marchers' suit over mass arrest on bridge": The Associated Press has this report on the substance of the ruling that I discuss in the post immediately below.

And Reuters reports that "New York court dismisses lawsuit over Occupy Wall Street arrests."

And the final paragraph of my post immediately below has also precipitated the following email from a reader who seems to know a thing or two about the subject:

[W]hile I agree with you entirely that "en banc" is the preferred term, have you considered the fact that 28 U.S.C. sec. 46 still says "in banc"? The Second Circuit's use of "in banc" may not be just stubbornness, but deference to the principle that a statute generally overrides a rule. I suppose you could say that under the Rules Enabling Act, the change in the rules from "in" to "en," postdating the statute, makes the "in" in the statute "of no further force or effect." Still, the U.S. Code is still the U.S. Code, and Congress still makes the laws. Perhaps the court views the use of "in" as a "substantive right" that cannot be abridged by rulemaking....

Posted at 03:02 PM by Howard Bashman


Exemplifying how much the Second Circuit loathes rehearing en (or in) banc: Ordinarily, when a federal appellate court grants rehearing en banc to decide an appeal, the original three-judge panel's decision is not only vacated, but the original three-judge panel loses control over the case, which is then instead pending before the full court for decision. Yesterday, however, the Second Circuit issued an order and a decision that justify my use of the wiggle-word "ordinarily" in the opening sentence of this post.

After the Second Circuit took what for it is the extraordinary step of granting rehearing en banc to decide a case, the original three-judge panel decided to flip the result in the case from a 2-to-1 ruling in favor of the plaintiffs to a unanimous ruling in favor of the defendants. Today's unanimous three-judge panel ruling can be accessed here. The original three-judge panel's ruling, reaching the opposite result by a vote of 2-to-1, can be accessed here.

Separately today, the full court issued an order explaining that in light of the three-judge panel's new decision, "this case no longer warrants consideration by the in [sic] banc Court."

For those keeping score at home, Circuit Judge Gerard E. Lynch's amended opinion for the three-judge panel correctly refers to rehearing "en banc," while the Second Circuit Clerk's Office still clings stubbornly to the now disfavored "in banc" label.
Posted at 01:45 PM by Howard Bashman



"Wolf's effort to fill Supreme Court vacancies collapses": Angela Couloumbis has this front page article in today's edition of The Philadelphia Inquirer.
Posted at 01:07 PM by Howard Bashman


"Religious groups back Muslim woman in U.S. high court scarf case": Lawrence Hurley of Reuters has this report.
Posted at 12:53 PM by Howard Bashman


"Lawyer: HIV assault ruling could end all such military cases." The Associated Press has a report that begins, "The attorney for a Kansas airman says a ruling by the nation's highest military court that reversed his client's conviction for exposing multiple sex partners to HIV will effectively end such prosecutions in the armed forces."

You can access yesterday's unanimous ruling of the U.S. Court of Appeals for the Armed Forces at this link.
Posted at 12:06 PM by Howard Bashman



"Supreme Court sides with Kansas in water dispute": The Associated Press has this report.
Posted at 12:00 PM by Howard Bashman


The Appellate Rules and Forms Public Hearing in Washington, DC has been rescheduled for March 6, 2015: As reflected here (scroll down).

According to information that I have received, representatives of the ABA's Council of Appellate Lawyers, the American Academy of Appellate Lawyers, the Appellate Section of the State Bar of Texas, and EarthJustice are scheduled to testify at the hearing.

You can access the public comments that those groups submitted, and all other public comments (including mine), via this link.
Posted at 11:54 AM by Howard Bashman



In the March 2015 issue of ABA Journal magazine: Mark Walsh has an article headlined "Although the ACA is 1,000 pages long, its future may depend on a single phrase."

David L. Hudson Jr. has an article headlined "Florida Bar restrictions on lawyer ads which cite past results is struck down by federal court."

And Steven Seidenberg has an article headlined "Law school clinics join to help battle patent trolls."
Posted at 11:42 AM by Howard Bashman



Access online the February 2015 edition of Appellate Issues, a publication of the ABA Council of Appellate Lawyers: You can access the publication at this link.

I am privileged to have an article in the issue titled "The Lure of the Internet," but the good news is that the issue seems packed with interesting articles, including one written by Marie E. Williams titled "The Last Scalia and Garner Book. Maybe."
Posted at 11:14 AM by Howard Bashman



"Foley Atty In High Court Row May Have Broken Ethics Rules": Andrew Strickler of Law360.com has a report (subscription required for full access) that begins, "The Foley & Lardner LLP partner who drew a rare sanction threat from the U.S. Supreme Court for filing an impenetrable, jargon-packed petition he says was penned largely by his client may have breached professional conduct rules when he didn't withdraw from the patent case, legal ethics experts said."

Earlier this morning, I had this post collecting additional coverage.
Posted at 11:06 AM by Howard Bashman



"Ohio Amish beard-cutter has learned lesson, seeks release from prison, attorneys say": The Associated Press has this report.
Posted at 11:03 AM by Howard Bashman


"Supreme Court Will Hear UVA Law Clinic Case Involving Felons and Firearms Tuesday": UVA Law School has this report.
Posted at 11:02 AM by Howard Bashman


"Constitution Check: Will the government's global wiretap program ever be subject to challenge?" Lyle Denniston has this post today at the "Constitution Daily" blog of the National Constitution Center.
Posted at 10:55 AM by Howard Bashman


"Muslim's case takes 'look' at Abercrombie & Fitch policy": Richard Wolf of USA Today has this report.
Posted at 10:40 AM by Howard Bashman


Access online today's ruling of the U.S. Supreme Court in an argued case: Justice Elena Kagan delivered the opinion of the Court in Kansas v. Nebraska, No. 126-Orig. Chief Justice John G. Roberts, Jr. issued an opinion concurring in part and dissenting in part. Justice Antonin Scalia issued an opinion concurring in part and dissenting in part. And Justice Clarence Thomas issued an opinion concurring in part and dissenting in part, in which Justices Scalia and Samuel A. Alito, Jr. joined in full and in which Chief Justice Roberts joined in part. You can access the oral argument via this link.
Posted at 10:06 AM by Howard Bashman


"Chief justice could again swing Obamacare case in government's favor": Lawrence Hurley of Reuters has this report today.
Posted at 08:26 AM by Howard Bashman


"Justices Weigh Denial of Visa to Husband of U.S. Citizen": Adam Liptak has this article in today's edition of The New York Times.

Robert Barnes of The Washington Post reports that "High court divided on refusal of a visa to a U.S. citizen's Afghan spouse."

In today's edition of The Los Angeles Times, David G. Savage has an article headlined "Supreme Court hears woman's case on visa denial for Afghan husband."

Lawrence Hurley of Reuters reports that "Supreme Court weighs case involving Afghan man barred from U.S."

And on yesterday evening's broadcast of NPR's "All Things Considered," Nina Totenberg had an audio segment titled "Supreme Court Considers Visa Case For Foreign Spouses."

You can access at this link the transcript of yesterday's U.S. Supreme Court oral argument in Kerry v. Din, No. 13-1402.
Posted at 08:15 AM by Howard Bashman



"Supreme Court To Hear Abercrombie's Religious Headscarf Case": Nina Totenberg had this audio segment on today's broadcast of NPR's "Morning Edition."
Posted at 08:12 AM by Howard Bashman


"Details on SCOTUS' Sanction of Patent Attorney Howard Shipley": Mark Wilson has this post at FindLaw's "U.S. Supreme Court News & Information Blog."

At "The Volokh Conspiracy," Will Baude has a post titled "An instance of increased transparency at the Supreme Court."

Tony Mauro of The National Law Journal has a Supreme Court Brief headlined "Five Questions Concerning the Curious Case of Howard Shipley" (subscription required for full access) in which Mauro not only links to my earlier coverage but also interviews New York University School of Law professor Stephen Gillers, a legal ethics expert.

And as of this very monent a total of 18 reader comments appear appended to a "Patently-O" post from Saturday titled "Foley Partner Responds to SCOTUS Show Cause Order: I had no choice and you're overreacting."

My four recent lengthy posts discussing various aspects of this matter in detail can be accessed here, here, here, and here.
Posted at 08:09 AM by Howard Bashman



Monday, February 23, 2015

"PA Supreme Court Chief Justice Thomas Saylor says court will be fine with five in '15": Charles Thompson of The Patriot-News of Harrisburg, Pennsylvania has this report, along with an article headlined "Local issues, not racially charged email, led Pa. Supreme Court candidate to withdraw, senator says."

Brad Bumsted of The Pittsburgh Tribune-Review reports that "Judge, law school dean out as nominees for Pennsylvania Supreme Court."
Posted at 11:23 PM by Howard Bashman



Fifth Circuit takes high school student's rap song suspension case en banc: You can access last Thursday's order of the U.S. Court of Appeals for the Fifth Circuit granting rehearing en banc, which that court posted online today, at this link.

The original three-judge panel's ruling can be accessed here, and my coverage of that ruling appears at this link.
Posted at 11:00 PM by Howard Bashman



"C.J. Seitz nominated to Delaware Supreme Court": The News Journal of Wilmington, Delaware has a report that begins, "Longtime corporate lawyer Collins J. Seitz Jr. has been nominated to the Delaware Supreme Court, on which his late father once served, the governor's office announced Monday."
Posted at 08:52 PM by Howard Bashman


"Last Week Tonight with John Oliver: Elected Judges." You can view the video segment on YouTube at this link (via Adam Liptak's tweet).
Posted at 05:36 PM by Howard Bashman


"Judicial Selection in Congress' Lame Duck Session": Law professor Carl Tobias has this article at The Supplement, an online publication of the Indiana Law Journal.
Posted at 05:25 PM by Howard Bashman


How did Howard N. Shipley end up facing possible SCOTUS discipline for filing a largely incomprehensible, client-written cert. petition? Before this matter arrived as a cert. petition filed in the U.S. Supreme Court, the case was pending as an appeal in the U.S. Court of Appeals for the Federal Circuit.

The history of the case in the Federal Circuit is worth noting, and I haven't seen it covered in detail elsewhere. While pending in the Federal Circuit, the case was known by the short name In re Teles AG, No. 12-1297 (Fed. Cir.). The Fried Frank law firm initially represented Teles AG in the Federal Circuit and filed the brief for appellant. Attorney James W. Dabney, a highly experienced patent appellate attorney who was then at Fried Frank, appeared as lead counsel for Teles AG on the brief for appellant, which was filed on July 16, 2012. The brief for appellant appears to have been written by actual lawyers, and I could not find any statement in that brief attributing any of the language in the brief to the client's non-lawyer CEO. Teles AG also attracted an amicus brief filed in support of its position in the appeal.

In February 2013, Teles AG filed its reply brief for appellant. Neither Fried Frank nor Dabney appeared on the reply brief as counsel for Teles AG. Rather, the cover of the reply brief reflects that Fried Frank had been replaced by Foley & Lardner as appellate counsel for Teles AG. Attorney Michael D. Kaminski of Foley & Lardner appeared on the reply brief as lead counsel for Teles AG, and Kaminski's entry of appearance in the Federal Circuit identified him as principal counsel for the client. A total of four Foley & Lardner lawyers appeared on the cover of the reply brief, a brief whose authorship a motion attributed in large measure to the client's non-lawyer CEO.

In March 2013, Fried Frank filed a motion for leave to withdraw as counsel for Teles AG, which the Federal Circuit soon thereafter granted. Fried Frank's motion to withdraw does not explain why that law firm was removing itself from the case, and it appears that Dabney remained at Fried Frank for another 18 months before leaving to join his current law firm.

Michael D. Kaminski of Foley & Lardner presented oral argument in the appeal to a three-judge panel of the Federal Circuit on January 8, 2014. You can access the oral argument audio via this link (4.67 MB mp3 audio file). The oral argument did not appear to go very well for Teles AG, and on April 4, 2014 the panel unanimously ruled against Teles and affirmed the judgment.

After requesting and obtaining an extension of time, Teles AG on June 9, 2014 filed its petition for rehearing en banc.

In the request for an extension of time to seek rehearing, and in the rehearing petition itself, Shipley now appeared as lead counsel for Teles AG. According to Shipley's response to the U.S. Supreme Court's order to show cause, Teles AG's rehearing petition filed in the Federal Circuit "was similar to the certiorari petition at issue here" insofar as it was largely written by the client's non-lawyer CEO. Three Foley & Lardner attorneys appear listed as counsel for Teles AG on the cover and signature line of the rehearing petition.

Although Foley & Lardner has a sizable appellate practice group, many of whom practice in Washington, DC and no doubt many of whom throughout the firm were admitted to practice in the U.S. Supreme Court, Shipley in May 2014 decided to seek admission to the bar of the U.S. Supreme Court so that he could serve as counsel of record to Teles AG, if necessary, in seeking further review of the Federal Circuit's adverse ruling.

After having been admitted to the bar of the U.S. Supreme Court, Shipley serving as counsel of record filed two cert. petitions on behalf of this client, one in August 2014 and the other in October 2014. You can access the text of both cert. petitions via this link at "Josh Blackman's Blog."

The Supreme Court denied review in the first case on October 14, 2014. And the Court denied review in the second case on December 8, 2014, by means of the same Order List containing an order directed to Shipley to show cause "why he should not be sanctioned for his conduct as a member of the Bar of this Court in connection with the petition for a writ of certiorari in No. 14-424."
Posted at 04:55 PM by Howard Bashman



"In Justices' Tests on Standing to Sue, Answers Aren't Always Clear-Cut": Adam Liptak will have this new installment of his "Sidebar" column in Tuesday's edition of The New York Times.
Posted at 03:18 PM by Howard Bashman


"Age issue: Could forcing state judges to retire earlier be prompted more by politics than by any practical concerns?" This editorial appears in today's edition of The Lawrence (Kan.) Journal-World.
Posted at 01:22 PM by Howard Bashman


"Court seems split over spouse's right to protest visa denial": The Associated Press has this report.
Posted at 01:14 PM by Howard Bashman


"Supreme Court denies missing litigant Bobby Chen a second chance": The Baltimore Sun has this blog post.
Posted at 01:07 PM by Howard Bashman


"US seeks stay of ruling on Obama immigration action": The Associated Press has this report.

You can view online both the stay request and the initial response in opposition filed by the State of Texas (via "Josh Blackman's Blog").
Posted at 01:04 PM by Howard Bashman



"With Kistler withdrawal, looks like Pennsylvania's Supreme Court will stay at five through 2015": Charles Thompson of The Patriot-News of Harrisburg, Pennsylvania has this report.

According to the article, "Senate Republican leaders have told Gov. Tom Wolf they won't hold confirmation hearings for either of the existing vacancies at this point, and Wolf, in a statement Monday, said that he won't make any further nominations."
Posted at 12:58 PM by Howard Bashman



"Obama Administration Using Century-Old Racist Case Law to Block Citizenship; American Samoans are the only people born on US soil but denied birthright citizenship": Pema Levy has this report online today at Mother Jones.
Posted at 11:02 AM by Howard Bashman


"In Defense of Court-Packing: When the Supreme Court willfully misreads the Constitution, FDR's plan doesn't seem so bad." Ian Millhiser has this jurisprudence essay online today at Slate.
Posted at 10:57 AM by Howard Bashman


"Jeffrey Rosen is now a contributing editor at The Atlantic. Previously, he was legal affairs editor for The New Republic." Via Benjamin Mullin at Poynter.org.

According to what I have learned, The Atlantic anticipates that Rosen will be writing regularly about the Constitution, the courts, and legal issues across America and around the world.
Posted at 10:52 AM by Howard Bashman



"Kistler withdraws name for consideration for state supreme court vacancy": The Centre Daily Times of State College, Pennsylvania has this news update.

Angela Couloumbis of The Philadelphia Inquirer has a news update headlined "Wolf nominee withdraws name for Supreme Court."

Brad Bumsted of The Pittsburgh Tribune-Review reports that "Judge withdraws as nominee for Pa. Supreme Court."

And John L. Micek of The Patriot-News of Harrisburg, Pennsylvania has a report headlined "Amid email controversy, Pa. Supreme Court nominee Thomas Kistler to withdraw today."

This is likely to postpone the Pennsylvania Senate's consideration and confirmation of Governor Wolf's other nominee, who recently began receiving his own negative news coverage (although this was also in the news at an earlier time).

The Pennsylvania Senate has a Republican majority, and these two nominees -- one a Democrat and one a Republican -- would allow Pennsylvania's highest court to retain its current (and previous) Republican majority. Appointing only a Democratic Justice at this time would not only cause the court to be evenly divided politically, but it would also result in an even number of Justices, which is not ordinarily viewed as a useful or efficient attribute for a court of last resort.
Posted at 10:30 AM by Howard Bashman



Access online today's Order List of the U.S. Supreme Court: At this link. The Court did not grant review in any new cases today.

Update: In early news coverage, The Associated Press reports that "Justices won't give lawyers access to secret court records"; "Justices reject New Orleans tour guides' free speech appeal"; and "Supreme Court won't reinstate case of man who went missing."

Lawrence Hurley of Reuters reports that "U.S. Supreme Court hands victory to Cuban cigar company."

And at "SCOTUSblog," Lyle Denniston has a post titled "Court passes up new global spy case."
Posted at 09:37 AM by Howard Bashman



"The Obamacare challenge that won't die": J.D. Harrison of The Washington Post has this report.
Posted at 08:26 AM by Howard Bashman


"A Case for Opening Schools to Worship": Law professor Noah Feldman has this essay online today at Bloomberg View.
Posted at 08:23 AM by Howard Bashman


"Texas' Tweeting judge shows off supreme sense of humor": KXAN News of Austin, Texas has posted online this interview, with video.
Posted at 08:17 AM by Howard Bashman


"Appeals court: Colorado couple can sue golf legend Nicklaus over lost Utah investment." The Salt Lake Tribune has this report on a ruling that the U.S. Court of Appeals for the Tenth Circuit issued last Thursday.
Posted at 08:11 AM by Howard Bashman


"What if the Supreme Court rules against Obamacare? Governors in Washington this week had no answers for a decision that could affect millions." Kyle Cheney, Sarah Wheaton, and Rachana Pradhan of Politico.com have this report.
Posted at 08:06 AM by Howard Bashman


"U.S. Supreme Court is set for arguments in Tulsa retailer, hijab dispute; U.S. Supreme Court justices must determine whether Abercrombie & Fitch's decision not to hire a Tulsan because she wore a headscarf was religious discrimination": Chris Casteel has this front page article in today's edition of The Oklahoman.

And Sam Baker of National Journal reports that "Abercrombie's Fashion Rules Land At the Supreme Court; A woman was denied a job at an Abercrombie store because of the headscarf she wears as a practicing Muslim."
Posted at 08:00 AM by Howard Bashman



Sunday, February 22, 2015

"Supreme Court will hear woman's case on visa denial for Afghan husband": David G. Savage will have this article in Monday's edition of The Los Angeles Times.
Posted at 10:38 PM by Howard Bashman


"Lawsuits' Lurid Details Draw an Online Crowd": Jodi Kantor will have this front page article in Monday's edition of The New York Times.
Posted at 10:30 PM by Howard Bashman


"Employers Watch High Court Case on Religious Garb; Justices to hear arguments on whether Abercrombie & Fitch discriminated against Muslim applicant": Jess Bravin will have this article in Monday's edition of The Wall Street Journal.

You can freely access the full text of the article via Google.
Posted at 08:44 PM by Howard Bashman



"Intense fight over Obamacare extends to those named in the challenge": Robert Barnes will have this article in Monday's edition of The Washington Post.
Posted at 08:12 PM by Howard Bashman


"Tsarnaev's lawyer has saved notorious clients from death": Denise Lavoie of The Associated Press has a report that begins, "With her arm around the young man's back, she gives him a gentle pat and leans in to whisper something to him. Judy Clarke could be his mother, with this simple, comforting gesture, but she is not."
Posted at 02:48 PM by Howard Bashman


"Same-sex marriage dispute in Michigan could shape national policy": Chad Halcom of Crain's Detroit Business has this report today.
Posted at 01:15 PM by Howard Bashman


"A friend no more, Dzhokhar Tsarnaev took part of their souls": Patricia Wen has this front page article in today's edition of The Boston Globe.
Posted at 01:10 PM by Howard Bashman


"GOP primary candidates challenged by gay marriage tide": Today's edition of The Boston Globe has a front page article that begins, "A divide over gay marriage is emerging in the potential Republican presidential primary field, with candidates falling into one of two camps: those who want to admit defeat on a key social cause and move on, and those who want to keep fighting."
Posted at 01:05 PM by Howard Bashman


"Arrest on unconstitutional sodomy law prompts Baton Rouge police chief to send memo to all officers": The Advocate of Baton Rouge, Louisiana published this article last week.
Posted at 01:02 PM by Howard Bashman


"Government 'avoiding Bain payout' -- Ian Binnie; Judge: They're shopping for answer they want." This article appears in Monday's edition of The New Zealand Herald.
Posted at 12:55 PM by Howard Bashman


"Republican governors worry about fate of Obamacare subsidies": Reid Wilson had this post last night at the "GovBeat" blog of The Washington Post.

And today at "Daily Kos," Dante Atkins has a post titled "Do the King v. Burwell plaintiffs even think their own interpretation is constitutional? Nope."
Posted at 12:50 PM by Howard Bashman



The U.S. Supreme Court's disciplinary docket for Howard N. Shipley can be viewed online: At this link, as part of the Court's new openness in such matters.

My discussion of the issues arising from Shipley's response to the Court's order to show cause appeared in three lengthy posts yesterday, which you can access here, here, and here.
Posted at 11:56 AM by Howard Bashman



"Why Obama's Immigration Order Was Blocked: The injunction isn't about prosecutorial discretion; It is about granting illegal aliens benefits not allowed by law." Law professor and former Tenth Circuit Judge Michael W. McConnell had this op-ed in last Wednesday's edition of The Wall Street Journal. You can freely access the full text of the op-ed via Google.

And yesterday at "Dorf on Law," Anil Kalhan had a post titled "Is Judge Hanen's Smackdown of Executive Action on Immigration 'Narrowly Crafted'?"
Posted at 11:48 AM by Howard Bashman



"Supreme Court to hear 'national security' case of visa denial": Bob Egelko of The San Francisco Chronicle has an article that begins, "When Fauzia Din's case reaches the U.S. Supreme Court on Monday, the Obama administration plans to argue that it can't risk telling anyone -- even a judge behind closed doors -- why it denied a visa to her Afghan husband. And that Din, a Fremont resident and naturalized U.S. citizen, has no rights at stake that entitle her to seek judicial review."

You can freely access the full text of the article via Google.
Posted at 10:00 AM by Howard Bashman



"Supreme Court clears Ellis, Rosenbaum in controversial legal ethics complaint": In yesterday's edition of The Oregonian, Jeff Manning had an article that begins, "The Oregon Supreme Court on Friday dismissed an ethics complaint against Barnes Ellis and Lois Rosenbaum, high-profile corporate lawyers in Portland, ending a divisive case that had dragged through the courts for nearly a decade."

You can access Friday's lengthy per curiam ruling of the Supreme Court of Oregon at this link.
Posted at 09:56 AM by Howard Bashman



"Lawmaker: Expand state Supreme Court from five to seven justices." Cronkite News has a report that begins, "A state lawmaker wants to expand the number of justices on the Arizona Supreme Court from five to seven, saying it would increase diversity and better serve a growing state."
Posted at 09:52 AM by Howard Bashman


"California DNA collection law now before state Supreme Court": Howard Mintz of The San Jose Mercury News has an article that begins, "The California Supreme Court has agreed to review the legality of the state's law requiring the collection of DNA samples from anyone arrested for a felony, even if they are never charged or convicted."
Posted at 09:50 AM by Howard Bashman


"Mississippi appeals blocked abortion law to US Supreme Court": The Associated Press has this report.
Posted at 09:48 AM by Howard Bashman


"America's Most Influential Thinker on Race: Supreme Court Justice Clarence Thomas's insights are reshaping law and policy for the better." Juan Williams had this op-ed in yesterday's edition of The Wall Street Journal. You can freely access the full text of the op-ed via Google.
Posted at 09:46 AM by Howard Bashman


"Who's Afraid of a Health-Care Ruling? A host of 2016 GOP contenders could have reason to worry if the Supreme Court moves to restrict Obamacare subsidies in June." Theda Skocpol has this essay online at The Atlantic.
Posted at 09:37 AM by Howard Bashman


"Chief Justice's stance on gay marriage sets state and federal authorities at loggerheads": Nick O'Malley of The Sydney Morning Herald has an article that begins, "On the drive from from Alabama's biggest city, Birmingham, to its capital, Montgomery, you go past a towering flagpole upon which the Confederate battle flag flutters, and a little further along a sign by a dam that admonishes travellers in bold black capitals, 'Go To Church.'"

Later in the article, O'Malley writes, "Moore's judicial doctrine resembles strict constructionism, a view -- accepted by a relatively small minority of US lawyers -- that the Constitution requires little interpretation because the words should be taken literally."

The Newnan (Ga.) Times-Herald reports today that "GA probate judges to follow law on same-sex marriage."

And The Toronto Star has posted online a letter to the editor under the headline "Did Adam and Eve get married?"
Posted at 09:34 AM by Howard Bashman



"Pennsylvania Democrats endorse David Wecht and Kevin Dougherty for Supreme Court primary": Charles Thompson of The Patriot-News of Harrisburg, Pennsylvania has this report.

And The Associated Press reports that "Democratic leaders back Wecht, Dougherty for Pennsylvania Supreme Court."
Posted at 09:21 AM by Howard Bashman



"Ginsburg's Celebrity Goes to Her Head": Kenneth Jost has this post today at his blog, "Jost On Justice."
Posted at 09:10 AM by Howard Bashman


Saturday, February 21, 2015

But the Federal Circuit didn't care that the non-lawyer client was writing the briefs on appeal: The title of this post summarizes one of the more interesting gambits contained in the response to the U.S. Supreme Court's order to show cause that Paul D. Clement filed earlier this week on behalf of Howard N. Shipley.

This line of argument proceeds as follows: (1) the lawyers at Foley & Lardner who were representing the appellant candidly advised the U.S. Court of Appeals for the Federal Circuit that their non-lawyer client was the principal author of the appellant's briefs on appeal by means of a motion for leave to file a substitute reply brief; (2) possessing that knowledge, the Federal Circuit thereafter issued an order granting permission to file the substitute reply brief; and (3) the Federal Circuit's opinion affirming the judgment did not suggest that the briefs the appellant filed were incomprehensible or otherwise deficient.

Although Foley's motion for leave to file an amended reply brief could not have been more forthcoming in explaining that the client's CEO demanded total control over the briefing of the appeal, it is noteworthy (and unmentioned in the response to the order to show cause) that the motion for leave to file a substitute reply brief was submitted as unopposed because the appellee had consented to the appellant's filing of a substitute reply brief.

Also unmentioned in the response to the order to show cause is the fact that the order granting the unopposed motion for leave to file a substitute reply brief was signed by the clerk of court and bears no indication that the motion was considered or decided by any of the Federal Circuit's judges. It is not uncommon for a federal appellate court's clerk's office to have the power to grant motions for leave to correct filings, especially where the relief that is being sought is not contested by the opposing party. If the order granting leave to file an amended reply brief were in fact issued by the Federal Circuit's clerk's office acting alone, as appears to be the case, it would be an overstatement to suggest that by granting such leave the Federal Circuit officially communicated its approval of the filing of briefs written by a non-lawyer client after having been fully informed of who the briefs' principal author was.

That then leaves us with the Federal Circuit's opinion itself, which did not communicate any displeasure with the quality of the appellant's briefs. Experience teaches that different circuits and, for that matter, different individual judges within a circuit have differing views over the utility of policing the quality and professionalism of work presented to the court. I have little doubt that if an appeal involved incomprehensible appellate briefs and came before a Seventh Circuit panel containing either Circuit Judge Richard A. Posner or Frank H. Easterbrook, the lawyer who submitted those briefs would receive an earful at oral argument and might face an order to show cause why discipline should not be imposed when the appeal was decided. Other judges are satisfied simply to decide the cases before them and have no urge to take on the extra work of policing a lawyer's discharge of his or her professional obligations.

Ironically, the argument that because the Federal Circuit permitted this to happen so should the U.S. Supreme Court now risks incurring not only the wrath of the Supreme Court, but also the wrath of the Federal Circuit, which might not view the case's history quite the same way.

My two posts from earlier today discussing other aspects of this interesting matter can be accessed here and here.
Posted at 10:46 PM by Howard Bashman



"D.A.: Death penalty moratorium reasons don't apply to local case." The Beaver County (Pa.) Times has this report.
Posted at 05:33 PM by Howard Bashman


"Roy Moore: No regrets over gay marriage stance." The Associated Press has this report.

And AL.com reports that "Group holds rally against same-sex marriage at Alabama Capitol."
Posted at 05:30 PM by Howard Bashman



"Flood of Briefs on the Health Care Law's Subsidies Hits the Supreme Court": Robert Pear will have this article in Sunday's edition of The New York Times.
Posted at 05:11 PM by Howard Bashman


"A tribute to Judge Morris S. Arnold": Rick Garnett has this post today at "PrawfsBlawg."
Posted at 03:56 PM by Howard Bashman


"Gazette, other news outlets appeal gag order in Blankenship case": Ken Ward Jr. has this front page article in today's edition of The Saturday Gazette-Mail of Charleston, West Virginia.

You can access at this link the petition for writ of mandamus filed yesterday in the U.S. Court of Appeals for the Fourth Circuit.
Posted at 03:45 PM by Howard Bashman



"Iowa Supreme Court upholds Sioux City traffic camera ordinance": This front page article appears in today's edition of The Sioux City Journal.

And at "On Brief: Iowa's Appellate Blog," Ryan Leemkuil has a post titled "Traffic cameras are constitutional: at least if you don't deny that you were driving."

You can access yesterday's ruling of the Supreme Court of Iowa at this link.
Posted at 03:27 PM by Howard Bashman



"California fixed redistricting; will the Supreme Court break it again?" Law professor Nicholas Stephanopoulos will have this op-ed in Sunday's edition of The Los Angeles Times.
Posted at 03:17 PM by Howard Bashman


"Democrats endorse 2 for Pennsylvania high court": The Associated Press has this updated report.
Posted at 03:14 PM by Howard Bashman


"U.S. Supreme Court to hear Muslim woman's hijab case against Tulsa store; She was denied a mall job in 2008 because of her head scarf": This front page article appears in today's edition of The Tulsa World.
Posted at 03:08 PM by Howard Bashman


"Sperm Donors Are Winning Visitation Rights: Marriage equality isn't enough to protect gay families." Law professor John Culhane has this jurisprudence essay online at Slate.
Posted at 03:02 PM by Howard Bashman


"The Shame of Solitary Confinement": Emily Bazelon of The New York Times Magazine has this essay online.
Posted at 02:58 PM by Howard Bashman


Additional thoughts on lawyer's response to SCOTUS order to show cause for filing largely incomprehensible, client-written cert. petition: In my post from early this morning, I explained why I believe it is unlikely that the U.S. Supreme Court will end up imposing sanctions on attorney Howard N. Shipley for having filed a largely incomprehensible cert. petition on behalf of a corporate client that the client's CEO insisted on drafting himself. Nevertheless, this is a close case, and I have given some further thought to the matter.

1, A lawyer's professional responsibility to the client and the tribunal: Let's hypothesize a lawyer who markets himself for hire to corporate clients who desire to brief cases pro se (acting through their non-lawyer CEO as the writer of all briefs). For reasons that are beyond the scope of this post, businesses that elect to incorporate are prohibited from appearing pro se in court through a non-lawyer owner, even if that owner is the sole proprietor of the corporation. This case illustrates that a market actually exists, to at least some extent, for attorneys to offer themselves for hire to serve as the signatories for client-written briefs. And it's not as though the attorney would merely serve as a rubber-stamp. In the case that gave rise to the SCOTUS order to show cause, the lawyer ensured that the brief complied with formatting and word count requirements, and the lawyer also caused the client to omit what the lawyer viewed to be inappropriately harsh criticism of an unspecified Federal Circuit judge. So, my first question is whether a lawyer who held himself out for employment to clients offering to do nothing more than what Shipley says he had no choice but to do in this case would or would not be subjecting himself to professional discipline?

2. Should the prohibition on corporations appearing pro se through their non-lawyer owners in litigation be abolished? Now that corporations can exercise religious rights, is it an anachronism for corporations to remain prohibited from appearing pro se in litigation, at least where you have a closely held corporation? If the company that filed the cert. petition in question were allowed to file it with its CEO as the petition's disclosed author, not only would the corporation have avoided incurring the costs of lawyers, but the author could have fully aired whatever grievances he wished to express about one or more Federal Circuit judges.

3. Is it credible to claim that sufficient time did not exist for the law firm to refuse to represent the client in filing a cert. petition in the U.S. Supreme Court? In this particular case, after a three-judge panel of the Federal Circuit ruled against the client, the client sought rehearing en banc. Once the three-judge panel ruled, a realistic probability for needing to file a cert. petition existed. Moreover, the deadline for a cert. petition is 90 days from the date on which the intermediate appellate court has issued an order denying rehearing. Thus, at least three months, and perhaps a much longer amount of time, existed for the law firm to tell its client that it would not file a largely incomprehensible cert. petition in the U.S. Supreme Court, even if the client insisted.

4. Counsel of record has explained himself, but has his law firm explained its conduct? A little over one month ago, Tony Mauro had a Supreme Court Brief titled "Foley Promises 'Thorough Response' to Supreme Court's Sanction Threat." Although most of Mauro's article remains behind a paywall that's impenetrable even to me, the article's first sentence is freely accessible. It states: "Foley & Lardner is preparing 'a thorough response' to the U.S. Supreme Court's unusual show-cause order last month that could result in sanctions against Foley partner Howard Shipley, the firm's general counsel says."

To be fair, the law firm of Foley & Lardner was not ordered to show cause itself, and therefore perhaps it is not surprising that the response that the lawyer filed does not address the larger question of how this highly respected law firm permitted this petition to be filed bearing its name. According to the law firm's Wikipeda entry, Antonin Scalia "was a summer associate in the Milwaukee office."

The truth of the matter is that a Biglaw firm is only as strong as its weakest link. Moreover, few if any large firms require court filings approved by one partner to attain further approval from anyone else before they are filed. Whether the lawyers involved in this matter will be allowed to continue practicing law at Foley & Lardner in the long term is something that only time will tell. At a minimum, however, this case does serve as a teaching opportunity for law firms of all sizes, and those law firms should not assume that the lessons to be learned only need be taught to new lawyers. The lawyers involved in this case were nowhere near brand new.
Posted at 02:31 PM by Howard Bashman



"The End of Public-Employee Unions? The Supreme Court has been asked to take a case that could deal a crippling blow to the labor movement." Law professor Garrett Epps had this essay online yesterday at The Atlantic.
Posted at 12:00 PM by Howard Bashman


"Ken Paxton asks Supreme Court to void same-sex marriage": Chuck Lindell has this front page article in today's edition of The Austin American-Statesman. You can freely access the full text of the article via Google.

The Texas Tribune reports that "Paxton Asks Court to Void Marriage License of Gay Couple."

And Reuters reports that "Texas attorney general aims to void marriage license for same-sex couple."

You can access at this link the mandamus petition that the State of Texas filed yesterday in the Supreme Court of Texas.
Posted at 11:55 AM by Howard Bashman



"Federal judge won't order dismissal of petition seeking to halt gay marriage": Kent Faulk of The Birmingham News has this interesting report.

You can access here and here yesterday's orders of the U.S. District Court for the Southern District of Alabama.
Posted at 11:40 AM by Howard Bashman



"Foley Partner Responds to SCOTUS Show Cause Order: I had no choice and you're overreacting." David Hricik has this post today at "Patently-O."

My thoughts on the matter appear in this post from early this morning. In the final paragraph of my post, I wrote: "Perhaps the Court will appoint an attorney to brief the other side of this issue, and then hold oral argument." A case in which something similar occurred in the Third Circuit can be found here and here. (Yes, I should have followed my own advice way back in May 2002 and installed the italics font pack for that brief.)
Posted at 11:26 AM by Howard Bashman



"2 Nominations Under Fire: Questions grow about Wolf's choices for open seats on the Pa. Supreme Court." Angela Couloumbis, Craig R. McCoy, and Robert Moran have this front page article in today's edition of The Philadelphia Inquirer.

In today's edition of The Pittsburgh Tribune-Review, Brad Bumsted and Adam Smeltz have a front page article headlined "Wolf nominee to top court causes stir with controversial email."

And Charles Thompson of The Patriot-News of Harrisburg, Pennsylvania has an article headlined "Pa. Supreme Court replacements, once considered a hopeful sign of Harrisburg honeymoon, are prompting second looks" that begins, "No one's given up on the prospective Pennsylvania Supreme Court careers of Duquesne University School of Law Dean Ken Gormley or Centre County President Judge Thomas Kistler yet. But their confirmations suddenly don't look like the legislative waltzes they appeared to be just days ago."

Remind me, which appellate law commentator was it who quoted Lao-Tzu in suggesting that these two seats should simply be left vacant throughout 2015?
Posted at 10:12 AM by Howard Bashman



"Judging Statutes: 5 Thoughts About The Use Of Legislative History." David Lat recently had this post at "Above the Law."
Posted at 09:28 AM by Howard Bashman


"6 judges vie for Democratic Party endorsements in Pennsylvania race for 3 high court seats": The Associated Press has this report.

And recently in The Philadelphia Inquirer, John M. Morganelli had an op-ed titled "Bar association makes 'misleading' call on judge."
Posted at 09:16 AM by Howard Bashman



"A lawyer seeks the Court's mercy": Lyle Denniston has this post at "SCOTUSblog."

I have now read the response to the order to show cause that Paul D. Clement has filed on behalf of the attorney who was ordered to show cause why discipline should not be imposed. As one might expect, Clement presents a persuasive argument for why discipline should not be imposed.

Unfortunately, the U.S. Supreme Court did not specifically identify what transgressions attorney Howard N. Shipley had engaged in that resulted in the Court's issuance of the order to show cause why discipline should not be imposed. Was it: (1) submitting a largely incomprehensible cert. petition; (2) crediting the corporate client's CEO as the drafter of the cert. petition, in violation of a Court publication that advises against attributing authorship of court documents to other than those attorneys appearing on the brief; or (3) the unfortunate yet obvious manner in which (1) and (2) combined, thereby allowing the Court to recognize that an attorney's filing of an incomprehensible cert. petition resulted from ceding control over the contents of the document to the client.

This now public spectacle, which the Court's order to show cause put in motion, is unlikely to have a satisfactory resolution, other than for legal ethics teachers, who can use the facts of this matter and the arguments contained in Clement's response to generate an endless number of hypotheticals for their students to consider.

No doubt many lawyers, trying to do their best on behalf of their clients yet without ceding control of the text of a cert. petition to their clients, all too frequently end up filing incomprehensible cert. petitions. The "punishment" these lawyers receive is the "cert. denied" that inevitably follows. Moreover, I feel confident that Clement would never cede control over the text of a Supreme Court filing to one of his clients, if an incomprehensible brief were to result, no matter how much money the client was willing to pay for the opportunity to display Clement's name on the cover of its filing.

With one exception, Clement's response seems to characterize Shipley's role as analogous to a vastly overpaid appellate printer, ensuring that the cert. petition complied with the court's formatting and word-limit requirements. The one exception is that Shipley ensured that the petition omitted improper criticism of a particular Federal Circuit judge, whom the response fails to identify by name.

The reason the outcome here is likely to be unsatisfactory is that if Shipley avoids sanctions, which I think he likely will in light of Clement's response, one possible conclusion is that an attorney operates within professional standards in signing his or her name to a brief written by a client if the client so insists, even if the brief is largely incomprehensible and thus has no chance of success. Moreover, Clement repeatedly suggests that Shipley's client should not have been forced to forgo filing a cert. petition containing the client's own preferred wording of arguments, even though the Court's denial of that cert. petition without calling for a response from the respondent would suggest that the cert. petition as submitted did not present a plausible case for review.

Even if the U.S. Supreme Court opts not to impose any sanction, no doubt this lawyer and his law firm have paid a price. Paul D. Clement doesn't come cheap for one thing. And for another, anyone who performs a Google search on Howard N. Shipley will find not only his impressive law firm bio but also plenty of coverage of this matter (see here and here, for example).

In any event, thanks to the Court's new openness in disciplinary matters, we should learn of the resolution of this matter in due course. Perhaps the Court will appoint an attorney to brief the other side of this issue, and then hold oral argument. That would certainly be a sight to behold.
Posted at 12:25 AM by Howard Bashman



Friday, February 20, 2015

"Gov. Tom Wolf reviewing Centre County Judge Thomas Kistler's nomination to PA Supreme Court": Charles Thompson of The Patriot-News of Harrisburg, Pennsylvania has this news update.

And The Centre Daily Times of State College, Pennsylvania has a news update headlined "Questionable email causes stir for Centre County Judge Thomas King Kistler." According to this article, "Kistler confirmed Friday that he had received and then forwarded the email but says his meaning was misconstrued."
Posted at 06:18 PM by Howard Bashman



"Foley Partner Defends 'Unorthodox' Brief in Supreme Court Disciplinary Action": Tony Mauro has this post today at "The BLT: The Blog of Legal Times" providing online access to the response itself.

Paul D. Clement is serving as counsel to attorney Howard N. Shipley in the disciplinary matter that the U.S. Supreme Court initiated.
Posted at 03:55 PM by Howard Bashman



"The proposed change to the length of federal appellate briefs: judges v. lawyers." Will Baude has this post today at "The Volokh Conspiracy."

Baude's post concludes, "I'm inclined to oppose the reduction. Those who write briefs know more about how the new rule will affect brief-writing, and that seems like an important factor here."
Posted at 02:31 PM by Howard Bashman



"White House to Seek Emergency Order to Let Immigration Plan Proceed": Michael D. Shear of The New York Times has a news update that begins, "The White House on Friday said that lawyers at the Justice Department would seek an emergency order from an appeals court to allow the federal government to issue work permits and provide legal protections to hundreds of thousands of undocumented immigrants while it appeals a judge's ruling halting the programs."

The Associated Press reports that "US to seek stay of ruling on Obama immigration action."

And Josh Gerstein of Politico.com reports that "Under pressure, White House seeks stay of immigration decision."
Posted at 02:18 PM by Howard Bashman



"Partisan politics play increasingly messy role in Wisconsin Supreme Court races": The Capital Times of Madison, Wisconsin has this report today.
Posted at 01:46 PM by Howard Bashman


"The Plot to Kill Health Care": Online today at The New York Times, columnist Timothy Egan has an essay that begins, "Republicans hate activist judges -- those black-robed elites who are willing to upset the lives of millions of people just to further a political cause."
Posted at 01:37 PM by Howard Bashman


"Did Supreme Court nominee send insensitive email?" Angela Couloumbis, Craig R. McCoy, and Robert Moran of The Philadelphia Inquirer have a news update that begins, "The central Pennsylvania judge nominated by Gov. Wolf to fill a vacancy on the state Supreme Court may have distributed an e-mail that could be viewed as racially insensitive."

Brad Bumsted of The Pittsburgh Tribune-Review has a news update headlined "Wolf nominee to top court causes stir with controversial email."

The Associated Press reports that "Pa. high court nominee in hot seat over 'Christmas' email."

And in recent related coverage, Jan Murphy of The Patriot-News of Harrisburg, Pennsylvania had an article headlined "Pa. Supreme Court could be back up to seven justices soon."
Posted at 01:25 PM by Howard Bashman



"Obama Immigration Appeal Hinges on Arcane Rules for Rule-Making": Andrew M Harris and Laurel Calkins of Bloomberg News have this report today.
Posted at 01:18 PM by Howard Bashman


Should a federal appellate court defer to defer a sister circuit's analysis of the law of states within their respective borders? That question is among the points of disagreement between the majority and Circuit Judge Jeffrey S. Sutton's dissent in a ruling that the U.S. Court of Appeals for the Sixth Circuit issued today.
Posted at 01:00 PM by Howard Bashman


"Court: No inflation pay on recovered funds of Madoff victims." The Associated Press has this report on a ruling that the U.S. Court of Appeals for the Second Circuit issued today.

And in somewhat related coverage, The New York Daily News reports that "Bernie Madoff's former secretary wants extra time to drive to Florida prison because she's afraid to fly."
Posted at 12:56 PM by Howard Bashman



"The Unsinkable R.B.G.: Ruth Bader Ginsburg Has No Interest in Retiring." Columnist Gail Collins will have this op-ed in Sunday's edition of The New York Times.
Posted at 11:34 AM by Howard Bashman


"Religious Freedom, Again: Why the Supreme Court should take up the Bronx Household of Faith case." Michael Stokes Paulsen has this essay online at National Review.

And at "The Volokh Conspiracy," Eugene Volokh has a post titled "Excluding 'religious worship services' when government opens up property for public access."
Posted at 10:37 AM by Howard Bashman



"Inside The Strategy To Persuade John Roberts To Save Obamacare": Sahil Kapur of TPM DC has this report.
Posted at 10:34 AM by Howard Bashman


Legal writing guru Bryan A. Garner opposes the FRAP briefing word limit reductions: Garner expressed his view on the issue in a tweet published late last night.
Posted at 10:00 AM by Howard Bashman


"Herald Price Fahringer, a Defender of Free Speech, Dies at 87": This obituary appears in today's edition of The New York Times.

And Mark Kernes of AVN News has written an obituary headlined "Herald Price Fahringer, Prominent 1st Amendment Attorney, Passes; 'I doubt we'll see the likes of him again anytime soon,' said Larry Flynt."
Posted at 08:25 AM by Howard Bashman



"Judicial panel dismisses complaint against Judge Edith Jones; Committee affirms probe clearing judge of misconduct in death-case speech": Lise Olsen of The Houston Chronicle has this report. You can freely access the full text of the article via Google.

You can access yesterday's decision of the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States at this link.
Posted at 08:20 AM by Howard Bashman



"For Obamacare challengers, a Supreme Court case built for speed": Joan Biskupic of Reuters has this report.
Posted at 08:10 AM by Howard Bashman


Thursday, February 19, 2015

"Supreme Court to hear case of a headscarf that cost a Muslim teen a job": Lauren Markoe of Religion News Service has this report today.
Posted at 10:44 PM by Howard Bashman


"Crossbow OK for felon, but Supreme Court to rule on rest of arsenal": Michael Doyle of McClatchy Washington Bureau has this report today.
Posted at 10:40 PM by Howard Bashman


"The Supreme Court's new chance to remake insider-trading law": Alison Frankel's "On the Case" from Thomson Reuters News & Insight had this report today.
Posted at 10:35 PM by Howard Bashman


"Judge Hanen's Flawed Ruling: He didn't get to the heart of the problem with the Obama amnesty." Law professor John Yoo has this essay online today at National Review.
Posted at 08:45 PM by Howard Bashman


"Supreme Court case against Obamacare faces obstacles": Richard Wolf of USA Today has this report.
Posted at 07:16 PM by Howard Bashman


"Faithfully Executed: Obama's new immigration program is perfectly legal and should not be blocked." Law professor Eric Posner has this essay online at Slate.
Posted at 05:36 PM by Howard Bashman


"Philly DA sues Wolf over death penalty moratorium": Steve Esack has this front page article in today's edition of The Morning Call of Allentown, Pennsylvania.

Today's edition of The Philadelphia Inquirer contains an article headlined "Phila. D.A. seeks to overturn Wolf's death-penalty moratorium."

Today's edition of The Philadelphia Daily News reports that "D.A. seeks to overturn Wolf's death-penalty ban."

And Reuters reports that "Prosecutor moves to halt Pennsylvania governor's death row reprieve."

You can access at this link the emergency King's Bench petition that the Philadelphia District Attorney filed yesterday in the Supreme Court of Pennsylvania.
Posted at 01:52 PM by Howard Bashman



"Sex crime ruling a tough test for Brown's high court appointees": Bob Egelko had this article in Tuesday's edition of The San Francisco Chronicle.

You can freely access the full text of the article via Google News.
Posted at 01:40 PM by Howard Bashman



D'oh -- "Court document may reveal Alabama's death penalty drug manufacturer": Tim Lockette has this front page article in today's edition of The Anniston Star.
Posted at 01:28 PM by Howard Bashman


"Travis County clerk issues first legal gay marriage license in Texas": Chuck Lindell of The Austin American-Statesman has this news update.

And The Associated Press reports that "Same-sex couple marries in Texas under one-time order."
Posted at 12:27 PM by Howard Bashman



"Is There a Silver Lining in Judge Hanen's Injunction Against the Obama Immigration Policy?" Michael Dorf had this post Tuesday at "Dorf on Law."
Posted at 12:04 PM by Howard Bashman


"Tsarnaev lawyers urge appeals court to move trial outside Boston": The Boston Globe has this news update.

And The Associated Press reports that "Tsarnaev lawyers ask US appeals court to move bombing trial."
Posted at 12:00 PM by Howard Bashman



Judicial handshakes -- "A New Practice at the Third Circuit?" Bruce D. Greenberg has this post at his "New Jersey Appellate Law" blog.

As news reports (see here and here) recently confirmed, a judicial fist bump might be the most hygienic post-argument form of greeting from the bench, although judicial high-fives could present an appropriate compromise solution.

Barring that, the Third Circuit's security screening does in my experience permit members of the public to bring small bottles of hand sanitizer into the courthouse. In this especially dangerous cold and flu season, that would seem to be good practice regardless of whether an oral argument wraps up with hugs and kisses, a handshake, or the more commonly experienced resolution of "don't call us, we'll call you."
Posted at 11:27 AM by Howard Bashman



"'Moldy' washer class to 6th Circuit: Jury verdict was tainted." Alison Frankel's "On the Case" from Thomson Reuters News & Insight had this report on Tuesday.
Posted at 10:42 AM by Howard Bashman


"What Are 30 Years Worth? In the case of this wrongfully convicted man, Louisiana says $0.00." Andrew Cohen has this essay online today at The Marshall Project.
Posted at 10:40 AM by Howard Bashman


"Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?" Amanda Frost has this article in the current issue of the Vanderbilt Law Review.

Earlier this week at "Dorf on Law," Michael Dorf had a post titled "Even More Thoughts on State Court (Non)Obligation to Follow Federal Appeals Court Precedents (Wherein I Respond to Professor Frost)."
Posted at 10:38 AM by Howard Bashman



"Constitution Check: Is the President's new immigration policy already a constitutional dead letter?" Lyle Denniston has this post today at the "Constitution Daily" blog of the National Constitution Center.
Posted at 10:33 AM by Howard Bashman


"Cal court says Iran's justice system not fair enough for property dispute": Bob Egelko of The San Francisco Chronicle has this blog post reporting on a ruling that the California Court of Appeal for the Second Appellate District issued on Tuesday.

And at "The Volokh Conspiracy," Eugene Volokh has a post titled "Plaintiffs can sue in California -- rather than in Iran -- because the Iranian system is biased against non-Muslims and women."
Posted at 10:28 AM by Howard Bashman



What's next in the battle over the proposed FRAP briefing word limit reductions? Although the public comment period concluded on Tuesday, that is merely one step in an ongoing process.

A public hearing to consider these and other amendments that had been scheduled for Tuesday in Washington, D.C. was postponed (scroll down) due to weather, and a replacement date has yet to be announced. I was not planning to speak at that public hearing, because I have the ability to communicate to the decision-makers whenever I choose via this blog (and because I have already said everything that currently needs to be said in my numerous earlier posts on this blog and in my actual public comment submitted of record). Sometimes more than just one public hearing will occur on FRAP amendments, allowing interested people in other parts of the country to more conveniently appear and be heard.

Once the public hearing or hearings occur, the pending proposed FRAP amendments will receive further consideration in the assigned rules committee. Those committees meet in public, although it is not common for many observers to show up uninvited. If that meeting occurs reasonably close to me, I would hope to attend, schedule permitting. If I can't attend, I will of course report on what happens based on second-hand accounts.

I realize that through dint of hard work this blog provides me with an opportunity to communicate directly with the appellate community in the United States to some extent. In that regard, I very much appreciate the sentiments of those readers who have emailed or telephoned to communicate to me their thanks for helping to draw attention to the FRAP word limit reduction proposal and helping to motivate the impressive opposition that the proposal has received. At the same time, everyone should recognize that no one else is opposing the word limit reduction proposal simply because I think it is a bad idea. Rather, the reason the word limit reduction proposal has elicited so much well-reasoned and deeply felt opposition from so many is that, on its merits, the proposal is a very, very bad idea.
Posted at 10:20 AM by Howard Bashman



"White House Struggles on Immigration Ruling": Michael D. Shear and Adam Liptak have this article in today's edition of The New York Times.

The Los Angeles Times reports that "U.S. Judge Andrew Hanen has history of opposing Obama immigration policies."

And in today's edition of The Los Angeles Times, law professor Erwin Chemerinsky and Samuel Kleiner have an op-ed titled "Texas judge's immigration ruling is full of legal holes."
Posted at 09:54 AM by Howard Bashman



"Unlikely Cause Unites the Left and the Right: Justice Reform": Carl Hulse has this front page article in today's edition of The New York Times.
Posted at 09:44 AM by Howard Bashman


"As Health Exchange Sign-Ups Rise, So Do Stakes for Supreme Court": Robert Pear has this article in today's edition of The New York Times.
Posted at 08:29 AM by Howard Bashman


"InterDigital Loses Appeal in ITC Case Against ZTE, Microsoft": Susan Decker of Bloomberg News has this report on a non-precedential ruling that the U.S. Court of Appeals for the Federal Circuit issued yesterday.
Posted at 08:26 AM by Howard Bashman


"Japan's Gay Marriage Push Faces Constitutional Barrier": Bloomberg News has this report.
Posted at 08:22 AM by Howard Bashman


"Ruth Bader Ginsburg Upends the Notion of the Silent Justice": Charlotte Alter of Time magazine has this report.

And at the re-designed National Review website, Edward Whelan has an essay titled "Injudicious Ginsburg: Her unethical comments require her recusal from pending marriage cases."

On a related note, Josh Blackman on Monday had a post titled "The Seven Stages of Criticizing Justice Ginsburg's Extrajudicial Statements."
Posted at 08:19 AM by Howard Bashman



"The Six Horsemen (of the Apocalypse)": Today at his "Balls & Strikes" blog, Calvin TerBeek has a post that begins, "Actuarially speaking, there are four justices on the Court that the next president might replace: Justice Ginsburg, Justice Breyer, Justice Scalia and Justice Kennedy."
Posted at 08:09 AM by Howard Bashman


"Groundhog Day at the Supreme Court: Will the Supreme Court Consider Affirmative Action Again?" Linda Greenhouse has this essay online at The New York Times.
Posted at 08:04 AM by Howard Bashman


Wednesday, February 18, 2015

"Markel's death remains a mystery": Sean Rossman of The Tallahassee Democrat has a news update that begins, "Seven months after someone shot Florida State law professor Dan Markel in the garage of his Betton Hills home, the Tallahassee Police Department has yet to make an arrest or identify a suspect."
Posted at 11:48 PM by Howard Bashman


"Guantanamo Conviction of Australian Is Overturned": Matt Apuzzo will have this article in Thursday's edition of The New York Times.

Carol J. Williams of The Los Angeles Times reports that "Military court throws out Australian's Guantanamo war crimes conviction."

Jess Bravin of The Wall Street Journal reports that "Military Appeals Court Tosses First-Ever Guantanamo Bay Conviction; Court sides with Australian who repudiated guilty plea after 2007 deal." You can freely access the full text of the article via Google.

Michael Doyle of McClatchy Washington Bureau reports that "Court annuls guilty plea of Australian ex-detainee."

Reuters reports that "U.S. court overturns conviction of Australian once held at Guantanamo" and "Australian held at Guantanamo says he was tortured for five years."

The Associated Press reports that "Court nixes Guantanamo conviction of Australian ex-detainee."

And Lyle Denniston has a blog post titled "Another setback for Guantanamo trials."

You can access today's ruling of the U.S. Court of Military Commissions Review at this link.
Posted at 11:44 PM by Howard Bashman



"Appeals court orders judge to reverse ruling in McManus death penalty case": The Evansville (Ind.) Courier & Press has this news update reporting on a ruling that the U.S. Court of Appeals for the Seventh Circuit issued yesterday.
Posted at 11:16 PM by Howard Bashman


"Superior Court halts hefty penalty against lawyer": Chris Mondics of The Philadelphia Inquirer has this news update.
Posted at 11:12 PM by Howard Bashman


"King v. Burwell: Standing Pat Or Standing Corrected." Rob Weiner has this guest post today at "Balkinization."
Posted at 07:33 PM by Howard Bashman


Two strikes, you're out for non-compliant district judge in the Sixth Circuit: The U.S. Court of Appeals for the Sixth Circuit didn't like it the first time that Senior U.S. District Judge Arthur J. Tarnow imposed a sentence of one day's imprisonment for a defendant's possession of a substantial number of child pornography images.

Today, the Sixth Circuit holds that it really, really didn't like it when Judge Tarnow imposed the identical one-day sentence of imprisonment on remand. To signify its displeasure, Judge Tarnow won't get a third chance to get it right. Today's Sixth Circuit ruling orders the case reassigned to another district judge.
Posted at 01:38 PM by Howard Bashman



Access the newly posted public comments on the FRAP word limit reduction proposal: These may represent the final batch of public comments submitted yesterday evening before the period for submission of public comments ended at 11:59 p.m. eastern time yesterday.

Three attorneys at Wiley Rein LLP submitted this public comment opposing the word limit reduction proposal.

The State Bar of California's Committee on Appellate Courts submitted this public comment opposing the word limit reduction proposal.

The State Bar of California's Committee on Federal Courts submitted this public comment opposing the word limit reduction proposal.

Earthjustice, Sierra Club, Defenders of Wildlife, and Western Environmental Law Center submitted this public comment opposing the word limit reduction proposal.

The members of the appellate, writ, and constitutional law practice at Enterprise Counsel Group, ALC submitted this public comment opposing the word limit reduction proposal.

Patrick Bryant submitted this public comment opposing the word limit reduction proposal.

Steven Finell submitted this public comment opposing the word limit reduction proposal.

And the public comment that I submitted yesterday evening opposing the word limit reduction proposal also appeared online this morning.
Posted at 01:22 PM by Howard Bashman



"Prosecutors' Misconduct": Retired Justice John Paul Stevens has this letter to the editor in today's edition of The New York Times.
Posted at 12:54 PM by Howard Bashman


In the current issue of the Columbia Journal of Law & the Arts: Ruth Bader Ginsburg and Antonin Scalia have written "Prefaces to Scalia/Ginsburg: A (Gentle) Parody of Operatic Proportions."

You can access Derrick Wang's libretto for "Scalia/Ginsburg: A (Gentle) Parody of Operatic Proportions," replete with some 248 footnotes.

And for those who demand even more Ginsburg, Rebecca Giblin and Jane C. Ginsburg (the not as notorious JCG) have an article in the issue titled "We (Still) Need to Talk About Aereo: New Controversies and Unresolved Questions After the Supreme Court's Decision."

Perhaps one final reason to access the publication's web site -- www.lawandarts.org -- is that on a quick read it appears to pertain either to lawn darts or the law of darts.
Posted at 11:25 AM by Howard Bashman



"Hanen's order prompts protest": This article appears in today's edition of The Brownsville (Tex.) Herald.
Posted at 11:11 AM by Howard Bashman


"Alabama Supreme Court and federal judge could both rule on gay marriage licenses within week": Kent Faulk of The Birmingham News has this report, along with an article headlined "Group says it has 28,000 petitions seeking ethics investigation of Alabama Supreme Court Chief Justice Roy Moore."

Brian Lyman of The Montgomery Advertiser reports that "Probate judge wants AG to stop same-sex marriage suit."

And today's edition of The Dothan Eagle contains a front page article headlined "No marriage licenses for Houston County until Supreme Court ruling."
Posted at 08:40 AM by Howard Bashman



"Drilling rules in Munroe Falls conflict with state law, divided Ohio Supreme Court rules": This front page article appears in today's edition of The Akron Beacon Journal.

Today's edition of The Cleveland Plain Dealer contains a front page article headlined "Ohio Supreme Court rules Munroe Falls regulations on oil and gas drilling are improper."

And The Columbus Dispatch reports that "Local governments cannot regulate fracking, Ohio Supreme Court rules."

You can access yesterday's 4-to-3 ruling of the Supreme Court of Ohio at this link.
Posted at 08:32 AM by Howard Bashman



"If administration loses looming Supreme Court case on ObamaCare, what's next?" Shannon Bream has this report at FoxNews.com.
Posted at 08:14 AM by Howard Bashman


"White House facing rocky legal road on immigration": Josh Gerstein of Politico.com has this report.

Gerstein writes, "Obama vowed to appeal the ruling, but that challenge will head to a court considered the most conservative federal appeals court in the country: the 5th Circuit. Its active judges are Republican by a 2-1 margin."
Posted at 08:12 AM by Howard Bashman



"Head of New York's Top Court Says Judges Should Oversee Grand Juries in Deaths Involving Police": This article appears in today's edition of The New York Times.
Posted at 08:09 AM by Howard Bashman


"Prosecutors to appeals court: Don't move Boston bombing case." The Associated Press has this report.
Posted at 08:06 AM by Howard Bashman


"Rand Paul and the Libertarian Case Against Judicial Restraint; Sen. Paul takes sides in a libertarian-conservative battle over SCOTUS and the Constitution": Damon Root had this post yesterday at Reason's "Hit & Run" blog.
Posted at 08:02 AM by Howard Bashman


Tuesday, February 17, 2015

Whew, it's fixed! The U.S. Court of Appeals for the First Circuit dug out from the snow today to issue this errata sheet correcting a minor citation error noted in this earlier post.
Posted at 11:57 PM by Howard Bashman


"Another leak in Kane case": Craig R. McCoy and Angela Couloumbis of The Philadelphia Inquirer have a news update that begins, "The Pennsylvania Supreme Court is angry that the leak case before it has sprung yet another leak. The high court has asked the agency that oversees lawyers to consider disciplining Lanny J. Davis, one of state Attorney General Kathleen Kane's lawyers, for making public a sealed order from the high court last month."

And Charles Thompson of The Patriot-News of Harrisburg, Pennsylvania has a news update headlined "Pa. Supreme Court seeks inquiry into release of once-sealed order in Kathleen Kane case."
Posted at 11:54 PM by Howard Bashman



"Mass. man held without bail in murder of R.I. Supreme Court justice's brother": The Providence Journal has this news update.
Posted at 11:40 PM by Howard Bashman


"Florida Supreme Court blocks execution of Orlando killer Jerry Correll": The Orlando Sentinel has this news update.

The Tampa Bay Times has a news update headlined "Jerry Correll execution stayed, pending lethal injection ruling."

And Reuters reports that "Florida puts executions on hold as high court debates anesthetic."

You can access today's order of the Supreme Court of Florida, and the opinions concurring in and dissenting therefrom, at this link.
Posted at 11:35 PM by Howard Bashman



"How Judge Hanen was able to rule against President Obama's immigration program": Eric Posner has this post today at his blog.
Posted at 09:46 PM by Howard Bashman


Access even more newly posted public comments on the FRAP word limit reduction proposal: The appellate and Supreme Court litigation practice groups at Wilmer Cutler Pickering Hale and Dorr LLP; Akin Gump Strauss Hauer & Feld LLP; Arnold & Porter LLP; Jenner & Block LLP; Kirkland & Ellis LLP; Molo Lamken LLP; Morrison & Foerster LLP; OMelveny & Myers LLP; Orrick, Herrington & Sutcliffe LLP; Sidley Austin LLP; and Vinson & Elkins LLP have jointly submitted this public comment opposing the word limit reduction proposal.

The Appellate and Constitutional Law Practice Group of Gibson, Dunn & Crutcher LLP has submitted this public comment opposing the word limit reduction proposal.

The New York State Bar Association's Committee on Courts of Appellate Jurisdiction has submitted this public comment opposing the word limit reduction proposal.

Dershowitz, Eiger & Adelson, P.C. has submitted this public comment opposing the word limit reduction proposal.

And the United States Department of Justice, via the Solicitor General's Office, has submitted this public comment supporting the word limit reduction proposal subject to "an important caveat."
Posted at 09:42 PM by Howard Bashman



"Judge's immigration ruling adds to Obama's list of potential legal pitfalls": David Nakamura and Juliet Eilperin of The Washington Post have this report.

Warren Richey of The Christian Science Monitor reports that "Federal judge halts Obama's executive action on illegal immigration."

Michael D. Shear and Ashley Parker of The New York Times have an article headlined "After Judge's Ruling, Obama Delays Immigration Actions."

And at "SCOTUSblog," Lyle Denniston has a post titled "Federal judge blocks immigrant benefits."
Posted at 09:27 PM by Howard Bashman



"'Too Many Notes'? An Empirical Study of Advocacy in Federal Appeals." Law professors Gregory C. Sisk and Michael Heise recently posted this paper online at SSRN (via Professor Sisk's public comment posted online late today in response to the proposed FRAP amendments).
Posted at 08:50 PM by Howard Bashman


I have just submitted my public comment opposing the proposed FRAP briefing word limit reductions: You can access it online at this link.

I thank everyone who has taken the time to submit public comments either opposing or supporting this controversial proposed amendment. The deadline for submitting public comments is 11:59 p.m. eastern time tonight, and public comments must be submitted online via this link.

Unlike when the Appellate Rules Advisory Committee was considering the amendment to permit advocates to cite to non-precedential rulings, where the momentum always appeared to favor the approval of that amendment, in the instance of the word limit reduction proposal the momentum necessarily appeared at the outset to favor reaching a bad outcome, as reflected by the proposal's initial approval for publication and the solicitation of public comments.

I am heartened by the fact that so many readers of this blog and others have taken the time and invested the effort to go on record with their very persuasive reasons for opposing this particular proposed amendment. Although it is too soon to declare victory, I believe that momentum has turned in our favor and that the proposed word limit reduction amendment is unlikely to achieve final approval.
Posted at 05:57 PM by Howard Bashman



Supreme Court and Appellate Practice of Mayer Brown LLP has submitted a comment opposing the proposed FRAP briefing word limit reductions: You can view the comment, submitted online today, by clicking here. The comment bears quite an impressive signature line.
Posted at 04:38 PM by Howard Bashman


Richard A. Samp, chief counsel of Washington Legal Foundation, has submitted a comment opposing the proposed FRAP briefing word limit reductions: You can view the comment, submitted online today, by clicking here.

I am currently in the midst of finalizing my own public comment, which I am intending to submit by 5 p.m. eastern time today via this link. The deadline for submitting public comments is 11:59 p.m. eastern time today.
Posted at 02:58 PM by Howard Bashman



"Hundreds of South Carolina Inmates Sent to Solitary Confinement Over Facebook": The "Deeplinks" blog of the Electronic Frontier Foundation had this post last Thursday.

And in related coverage, The Telegraph (UK) reports that "Prisoner gets 37 years in solitary confinement for secret Facebook posts; A South Carolina prisoner may regret spending all that time on Facebook."
Posted at 01:40 PM by Howard Bashman



"Full interview with Supreme Court Justice Ruth Bader Ginsburg": msnbc has posted the video at this link.

Meanwhile, those who oppose cameras at the U.S. Supreme Court can opt instead to read a transcript of the interview.
Posted at 01:24 PM by Howard Bashman



Today's "Appellate Rules and Forms Public Hearing" in Washington, D.C. has been postponed due to the snowstorm: See the notice reflected here (scroll down). Once the hearing is rescheduled, I will let readers know.
Posted at 01:11 PM by Howard Bashman


"Ruth Bader Ginsburg on marriage, sexism and pushups": Irin Carmon of msnbc has this report today.
Posted at 01:04 PM by Howard Bashman


"The case against cheating prosecutors": This editorial, which focuses on an example from the Ninth Circuit, appeared recently in The Los Angeles Times.
Posted at 12:00 PM by Howard Bashman


A 140-character concurrence: Orin Kerr tweeted at 12:51 a.m. eastern time today, "Been enjoying @howappealing's blogging against the reduction in appellate brief word limits. I agree with him, especially for crim cases."*

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*Technically speaking, Orin's tweet actually only contains 137 characters using Twitter's method of counting.
Posted at 11:48 AM by Howard Bashman



Access today's newly posted public comments on the FRAP word limit reduction proposal: Seven new comments appeared online today, six of which oppose the proposal and one of which contains a tepid endorsement.

The Office of General Counsel of the Securities and Exchange Commission posted this comment opposing the word limit reduction proposal.

The American Bar Association's Council of Appellate Lawyers has posted this very persuasive comment opposing the word limit reduction. You will find appended to the organization's official comment a series of comments largely but not exclusively against the word limit reduction proposal that council members submitted.

I have previously linked to the comment from the National Association of Criminal Defense Lawyers opposing the word limit reduction proposal.

Attorney Walter K. Pyle has posted this comment opposing the word limit reduction.

Attorney Richard L. Stanley has posted this comment opposing the word limit reduction.

And attorney Jonathan Block has posted this comment opposing the word limit reduction.

The public comment period expires at midnight eastern time tonight. Public comments may only be submitted online via this link.
Posted at 11:40 AM by Howard Bashman



"Republican lawmakers hold the line against Obamacare at state level": This front page article appears in today's edition of The Los Angeles Times.

And Reuters reports that "Obamacare rescue ruled out by some states, others weigh options."
Posted at 09:56 AM by Howard Bashman



Some FRAP briefing word limit expansion horror stories from the Third Circuit -- your mileage may vary: If the Federal Rules of Appellate Procedure are amended to reduce the word limit for principal appellate briefs from 14,000 words to 12,500 words, all federal appellate courts are certain to receive a larger number of motions seeking to expand the word limits applicable to particular appeals.

Whether an increased volume of such motions on a grand scale is or is not a good thing is something I will leave for others to decide. The purpose of this post is to describe what happened with two particular word limit expansion motions pertaining to criminal appeals filed in the U.S. Court of Appeals for the Third Circuit.

In United States v. Auernheimer, No. 13-1816 (3d Cir.), the Third Circuit in April 2014 -- only three weeks after oral argument -- issued a decision that resulted in the defendant's immediate release from federal prison. The federal government thereafter decided not to initiate any new charges against the defendant.

The docket entries in that case reflect that on August 5, 2013, the federal government filed a motion for leave to file a brief for appellee containing 26.495 words in order to adequately respond not only to the brief for appellant but also to all of the amicus briefs filed in support of the appellant's side. On October 14, 2013, the appellant withdrew his motion to strike the federal government's brief, thereby making the federal government's word limit expansion motion unopposed as of that date.

The Third Circuit, however, did not enter an order granting the federal government's motion to file an oversized brief for appellee until December 19, 2013. Because it took more than four months to resolve the motion, over two months of which the motion was unopposed, it is fair to say that the defendant was unnecessarily forced to spend two to four additional months in federal prison as the result of an unresolved briefing word limit expansion motion.

Lest you think that the delay in Auernheimer was unique, permit me to refer to the criminal appeal that I argued in the Third Circuit last month. In that case, on October 11, 2013, counsel for appellant sought leave to file a brief for appellant containing not more than 18,250 words. The federal government filed no opposition to that motion, rendering the motion unopposed some 15 days later. On March 28, 2014 -- nearly six months later -- the Third Circuit entered order granting permission for appellant to file an opening brief not longer than 16,100 words.

Perhaps these two instances of inordinate delays surrounding word limit expansion motions are atypical, but they certainly do not cause me to favor a regime in which the federal appellate courts must handle an even larger volume of word limit expansion motions than those courts are currently facing.
Posted at 09:40 AM by Howard Bashman



The U.S. Court of Appeals for the Fourth Circuit is closed today due to the snowstorm: See this notice.
Posted at 09:03 AM by Howard Bashman


"The Federal Circuit's New 'Authorized Acquirer' Restriction on Patent Exhaustion": Samuel Ernst had this post yesterday at "Patently-O" discussing the recent ruling of the U.S. Court of Appeals for the Federal Circuit (also closed today due to the snowstorm) in Helferich Patent Licensing, LLC v. The New York Times Co.

My initial coverage of the ruling on the day of its issuance focused on the fact that the highly talented and exceptionally experienced appellate lawyers for the parties in that case all filed appellate briefs that were considerably in excess of the new word limits now under consideration for the Federal Rules of Appellate Procedure. I also had this follow-up post linking to news coverage of the ruling.
Posted at 09:00 AM by Howard Bashman



"In Alabama, Obstruction of Justice on Marriage": Kenneth Jost had this post yesterday at his blog, "Jost On Justice."
Posted at 08:52 AM by Howard Bashman


"The Incredible Shrinking Lawsuit: The Decomposition Of King v. Burwell." Rob Weiner has this guest post today at "Balkinization."
Posted at 08:50 AM by Howard Bashman


"Judge Torruella calls on courts to 'reevaluate' Commerce Clause decisions": Jonathan H. Adler has this post today at "The Volokh Conspiracy."

My earlier coverage of last Wednesday's First Circuit ruling can be accessed here.
Posted at 08:40 AM by Howard Bashman



"Judge Hanen halts Obama immigration initiatives": Emma Perez-Trevino of The Brownsville (Tex.) Herald has this report.

Julia Preston of The New York Times has a news update headlined "Obama Immigration Policy Halted by Federal Judge in Texas."

The Washington Post reports that "Federal judge in Texas blocks Obama immigration orders."

The Los Angeles Times reports that "Judge blocks Obama policy that would shield millions from deportation."

Nathan Koppel and Miguel Bustillo of The Wall Street Journal report that "Federal Judge Stalls Obama's Executive Action on Immigration; U.S. government expected to appeal to Fifth U.S. Circuit Court of Appeals."

USA Today reports that "Judge orders halt to Obama immigration plan."

The Washington Times reports that "Federal judge halts Obama amnesty."

The Associated Press reports that "Federal judge stalls Obama's executive action on immigration"; "Gov't will appeal ruling blocking Obama immigration plan"; and "Judge who blocked immigration action had criticized policy."

Reuters reports that "Texas judge blocks Obama plan to protect undocumented immigrants."

Bloomberg News reports that "Obama's Order on Immigration Halted by Federal Judge in Texas."

Josh Gerstein of Politico.com reports that "Judge halts Obama's immigration action; The president lacks the legal authority to carry out his orders, U.S. District Court Judge Andrew Hanen ruled."

And Elise Foley of The Huffington Post reports that "Judge Temporarily Halts Obama's Immigration Actions."

You can access yesterday's 123-page ruling of the U.S. District Court for the Southern District of Texas at this link (11.2 MB scanned PDF document).
Posted at 07:32 AM by Howard Bashman



Monday, February 16, 2015

"FEDERAL OFFICES in the Washington, DC area are CLOSED": The U.S. Office of Personnel Management has posted this notice for Tuesday, February 17, 2015.

Coincidentally, tomorrow in Washington, D.C., an "Appellate Rules and Forms Public Hearing" is scheduled to occur to consider, among other things, a controversial proposed amendment to reduce the word limits applicable to federal appellate briefs.

When I learn whether the hearing will occur tomorrow notwithstanding the snow storm affecting Washington, D.C., I will let this blog's readers know.

Update: The D.C. Circuit has announced that it will be closed on Tuesday, February 17, 2015 due to snow.
Posted at 10:17 PM by Howard Bashman



Additional reader comments on the proposed FRAP briefing word limit reductions: One very experienced federal appellate practitioner writes:
If I felt I could predict which of my issues the panel was most likely to think meritorious, I would feel more comfortable pruning the issues. But since I have won more than one case on an issue I wouldn't have bet a plug nickel on, and have lost on issues I was sure were winners, and have suffered summary dispositions where I firmly believed the issues were at least worthy of serious consideration, I no longer believe I can choose my "best three" issues in the sense that appellate judges mean when then say such things at CLE panels. Only if they will tell me in advance which three those are, will I be in a position to comply.
And another longtime reader has sent along the following comment:
I write to comment against the proposal to reduce the maximum word length of federal appellate briefs. I have been in practice nearly 25 years, almost all of that in small firms or as a solo practitioner. Additionally, for a number of years I wrote many, many briefs for other lawyers on a per diem basis. I have litigated up and down the state and federal trial and appellate systems.

The distinguished Circuit Judge,who taught my law school class in Federal Appellate Practice admonished us time and again that the place to make our client's argument was in the brief. We, as advocates, could control that. Already then in the late '80s, limits on oral argument were coming into play. Not every case would get oral argument. Fair enough. But now, we get the briefs cut. One could easily conclude that the Circuits just don't want to be bothered.

For more than the past decade, I've sought to avoid the federal courts like the plague. I became convinced their inclination, reflected in their decisions, was not to achieve the simple, just and economical resolution of all cases. The arcana of the Courts' rules, as applied, yielded judges producing finely wrought opinions, concurrences and dissents sometimes dozens of pages long. They might be parsing, yet again, the inner meaning of the removal statute in cases where two entities with too much money already were fighting over who would get more. In the same batch of cases, some ordinary person, as appellant and seeking justice in the courts for perhaps the first (or only) time in their life, might get a cursory "aff'd mem."

There are some cases where the brief has to be long. The facts might be complicated. The trial judge may have made a panoply of errors. The ordinary litigant represented by an ordinary lawyer might not -- probably won't -- have the money to pay for a specialized appellate advocate nor for the time to spend on honing and sharpening a brief to a single, very short argument. Nor will the ordinary litigant have the daring to stake their case on a single short argument and abandon meritorious arguments. Appellate courts have recently been quite aggressive in seeking out ways to declare arguments abandoned. One has to preserve arguments on the odd chance there might be a "later," when that argument could prove vital or its abandonment fatal. Nor, for that matter, will the average advocate have the courage to recommend to his clients that they stake the clients' case on one argument. The average appellant's advocate has, lurking in the back of his or her consciousness, the specter of a malpractice suit revolving around abandoned arguments and briefs not comprehensive enough. When the average litigant is an appellant, he or she wants to make every argument. Years of counseling average people as clients has left me with the firm conclusion, empirically derived, that many unsophisticated litigants just have a hard time grasping the concept that some arguments are losers which should not be made. It takes some persuading.

The average appellate brief, filed by the average practitioner, probably comes nowhere near the existing word limit. But for those cases where the case requires it, the practitioner should not have to hope for the Court's grace nor expend the additional time, money and effort on motion practice.

The proposed amendment to the FRAP should not go into effect.

Tomorrow is the deadline for public comments supporting or opposing the proposed briefing word limit reduction. Official comments must be submitted online via this link. Unofficial comments can be emailed to me for consideration for posting here, where they might just be read by many of the same people who will be reviewing the official comments.
Posted at 09:18 PM by Howard Bashman


"Cleburne judge says he won't license same-sex weddings": The Anniston (Ala.) Star has this news update.
Posted at 09:03 PM by Howard Bashman


"Will John Roberts or Anthony Kennedy Save Obamacare? Lawyers tailor their appeals to each in the fight over the law's health insurance subsidies." Sam Baker of National Journal has this report.
Posted at 08:50 PM by Howard Bashman


"Millions at risk of losing coverage in Supreme Court health law case": The Washington Post has this news update.
Posted at 08:30 PM by Howard Bashman


"Ruth Bader Ginsburg on abortion, race and the broken Congress": Irin Carmon of msnbc has this report.
Posted at 03:54 PM by Howard Bashman


National Association of Criminal Defense Lawyers opposes the proposed FRAP briefing word limit reductions: You can access that organization's comments via this link. The organization's opposition to the proposed word limit reductions begins on page three of the document.

This organization's grounds for opposing the proposed FRAP briefing word limit reductions strike me as very well reasoned.
Posted at 03:00 PM by Howard Bashman



Access online the contents of the February 2015 issue of the Stanford Law Review: Via this link.
Posted at 01:34 PM by Howard Bashman


Mother Nature weighs in on the proposed amendments to the Federal Rules of Appellate Procedure: Tomorrow in Washington, D.C., an "Appellate Rules and Forms Public Hearing" is scheduled to occur. Coincidentally, overnight in Washington, D.C., the weather forecast calls for 5 to 8 inches of snow.

If the hearing occurs as planned tomorrow, I will link to a transcript of the hearing once it becomes available online.
Posted at 11:48 AM by Howard Bashman



"King v. Burwell and ideological voting": Eric Posner has this post today at his blog.
Posted at 10:50 AM by Howard Bashman


"What Alabama's Roy Moore Got Right": Brian Epstein, an assistant professor of philosophy at Tufts University, has this post today at the "Opinionator" blog of The New York Times.
Posted at 10:48 AM by Howard Bashman


"BC Civil Liberties Association to argue human smuggling cases in Supreme Court": Today's edition of The Toronto Globe and Mail contains an article that begins, "The Supreme Court of Canada this week is set to hear arguments in a number of cases calling into question the reach of the country's human smuggling laws."
Posted at 08:27 AM by Howard Bashman


"How to Force Prosecutors to Play Fair": This editorial appears in today's edition of The New York Times.
Posted at 08:24 AM by Howard Bashman


"What Led Me to Disrupt the US Supreme Court and Risk 150 Days Imprisonment": Curt Ries has this essay online at Truthout.
Posted at 08:20 AM by Howard Bashman


Sunday, February 15, 2015

"Alabama gay marriage fight echoes states' rights battles": The Associated Press has this report.

Nick Gass of Politico.com has a report headlined "Roy Moore: Not thwarting U.S. Supreme Court on gay marriage."

Ariel Edwards-Levy of The Huffington Post has a report headlined "Judge Challenging Alabama Chief Justice Roy Moore On Gay Marriage: 'We're On The Right Side Of History.'"

And at AL.com, columnist Cameron Smith has an essay titled "How the U.S. Supreme Court biased its own decision on same-sex marriage."
Posted at 01:30 PM by Howard Bashman



"Floyd County awaits gay marriage ruling from U.S. Supreme Court": Alan Riquelmy has this front page article in today's edition of The Rome (Ga.) News-Tribune.
Posted at 01:18 PM by Howard Bashman


"Gay marriage: 'A hot spur' to Texans." Anna M. Tinsley has this front page article in today's edition of The Star-Telegram of Fort Worth, Texas.
Posted at 01:14 PM by Howard Bashman


"California man's case prompts new law on expert testimony": The Associated Press has this report.
Posted at 09:22 AM by Howard Bashman


"Questions on plaintiffs unlikely to derail health lawsuit": Mark Sherman of The Associated Press has this report.
Posted at 09:16 AM by Howard Bashman


"Washington's pending showdown on school funding: Legislature vs. Supreme Court; How will the education-funding showdown between the Legislature and Washington's Supreme Court end? Other states' experiences run the gamut from courts shutting school down to get what they want, to simply backing off." The Seattle Times has this report.
Posted at 09:12 AM by Howard Bashman


"Who is Roy Moore? Alabama's Ten Commandments Judge takes on same-sex marriage." Kelsey Stein has this front page article in today's edition of The Birmingham News.

In today's edition of The Washington Post, Monica Hesse has a front page article headlined "Judge tangled up over tying the knot."

And in today's edition of The Montgomery Advertiser, Brian Lyman has a front page article headlined "For most Ala. officials, a muted reaction to same-sex marriage."
Posted at 09:04 AM by Howard Bashman



Saturday, February 14, 2015

"Obamacare lawsuit questions -- 'kerfuffle' or threat?" Jennifer Haberkorn of Politico.com has this report.
Posted at 04:55 PM by Howard Bashman


"Alabama Supreme Court to consider petition seeking halt to same-sex marriage licenses": Kent Faulk of The Birmingham News has this report.

And Cheryl Wetzstein of The Washington Times reports that "Ala. gay marriage fight moves to state supreme court; Judges, 6-2, order probate judges to respond."

You can view yesterday's order of the Supreme Court of Alabama at this link.
Posted at 02:31 PM by Howard Bashman



"Himonas unanimously confirmed to the Utah Supreme Court": The Salt Lake Tribune has this report.

And The Deseret News reports that "Senate confirms new Utah Supreme Court justice."
Posted at 02:24 PM by Howard Bashman



"Supreme Court has issued conflicting rulings on special prosecutors": Borys Krawczeniuk has this front page article in today's edition of The Times-Tribune of Scranton, Pennsylvania.
Posted at 02:21 PM by Howard Bashman


"Supreme Court on the loose": Conrad Black has this essay online today at National Post.
Posted at 02:15 PM by Howard Bashman


"TN Supreme Court agrees to hear electric chair case": The Tennessean has this report.
Posted at 02:14 PM by Howard Bashman


"A New Fix for Obamacare": In today's edition of The New York Times, Grace-Marie Turner and Diana Furchtgott-Roth have an op-ed that begins, "Early next month the Supreme Court will hear arguments in King v. Burwell, the latest significant legal challenge to the Affordable Care Act."
Posted at 02:11 PM by Howard Bashman


"Justice Ginsburg asked to recuse herself in Supreme Court gay marriage case; Group says it will ask for congressional investigation if she doesn't 'step aside'": Cheryl Wetzstein of The Washington Times has this report.
Posted at 02:07 PM by Howard Bashman


"Court icons Scalia and Ginsburg: Together at the peak." Richard Wolf of USA Today has this report.

Wolf writes, "What looms ahead for these two legal icons is a political reckoning. They must balance their roles as leaders of the court's conservative and liberal wings against the risks involved in sticking around too long -- or leaving too soon."
Posted at 02:00 PM by Howard Bashman



"Appeals court to hear case of Mississippi death row inmate who pleaded guilty to rape, murder": So reported The Associated Press back in September 2014. Yesterday, a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued a decision affirming the district court's denial of a writ of habeas corpus.

The Fifth Circuit's decision contains this unusual account of what, presumably according to the habeas petitioner's own description, triggered his murderous conduct:

Thomas Loden worked as a recruiter for the United States Marine Corps in Vicksburg, Mississippi, where he lived with his wife and daughter. He had travelled to Itawamba County, Mississippi, on June 21, 2000 to visit his ailing grandmother, Rena Loden, at her farm. On June 22, Loden claims he spoke to his wife on the phone, and she told him that she had just had "phone sex" with a partner at the law firm at which she worked as a paralegal and that she planned on having sexual intercourse with that partner while Loden was away.

Posted at 11:52 AM by Howard Bashman


"Allstate cleared of EEOC retaliation charges": Business Insurance has this report on a ruling that the U.S. Court of Appeals for the Third Circuit issued yesterday.
Posted at 10:32 AM by Howard Bashman


First you leave the U.S. Supreme Court, next you misstate what Title of the U.S. Code a civil rights claim under section 1983 arises: Retired Justice David H. Souter yesterday issued this unanimous opinion on behalf of a three-judge panel of the U.S. Court of Appeals for the First Circuit.

The opinion's second sentence begins:

This action brought by Caesars under 28 U.S.C. sec. 1983 includes counts [seeking the following relief].
The section 1983 in question appears in Title 42; Title 28, by contrast, doesn't even contain a section 1983.

Of course, the statute now codified at 42 U.S.C. sec. 1983 traces its history back to 1871. Apparently it was once codified in Title 8 of the U.S. Code.

In Justice Souter's defense, Westlaw's CTA database reveals 10 other federal appellate court decisions that cite to 28 U.S.C. sec. 1983, the most recent of which is from 1996. Notably, six of those ten decisions originated from the Tenth Circuit during 1995 and 1996. All but one of those 10 decisions are unpublished, and the published one contains the error in a block quote. Presumably Westlaw will correct this apparently de minibus citation error when it appears in opinions designated for publication.
Posted at 10:09 AM by Howard Bashman



"Religion in the Public Service: A Conversation with Clarence Thomas and John Danforth." Yale Law School has posted online at this link the video of this recent event.

Update: The video is also available on YouTube.
Posted at 09:48 AM by Howard Bashman



"Justices Ginsburg And Scalia: A Perfect Match Except For Their Views On The Law." This audio segment featuring Nina Totenberg appeared on yesterday evening's broadcast of NPR's "All Things Considered."

And Richard Wolf of USA Today has a report headlined "Scalia and Ginsburg are buddies beyond the bench."
Posted at 09:40 AM by Howard Bashman



Friday, February 13, 2015

"Did Chief Justice John Roberts Save the Affordable Care Act?" Jeffrey Toobin had this post online yesterday at The New Yorker.

And in yesterday's edition of The New York Times, columnist Gail Collins had an op-ed titled "An Ode to Obamacare."
Posted at 01:40 PM by Howard Bashman



"Gay marriage: Hearts of Dixie -- As Alabama goes, so goes America." This article will appear in the February 14, 2015 issue of The Economist.
Posted at 01:37 PM by Howard Bashman


"Appeals court: Marshals can't be sued for excessive force." Sam Hananel of The Associated Press has this report.

And Lawrence Hurley of Reuters reports that "U.S. court backs law enforcement officers in black teen's shooting."

You can access today's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 01:30 PM by Howard Bashman



"Lawyers win exemptions from money-laundering law": Sean Fine of The Toronto Globe and Mail has a news update that begins, "The Supreme Court has declared sections of a federal anti-terrorism and money-laundering law to be unconstitutional, concluding a legal battle seen by Canada's lawyers as a test of their profession's independence."

You can access today's ruling of the Supreme Court of Canada at this link.
Posted at 01:22 PM by Howard Bashman



"The Architect of the Obamacare Court Challenge Just Undermined Republicans' Victory Strategy": Brian Beutler has this essay online today at The New Republic.
Posted at 01:17 PM by Howard Bashman


Pennsylvania, which hasn't executed anyone since 1999, now really, really, really won't be executing anyone: Angela Couloumbis of The Philadelphia Inquirer has a news update headlined "Wolf halts death penalty in Pa."

Karen Langley of The Pittsburgh Post-Gazette has a news update headlined "Governor places moratorium on death penalty in Pennsylvania."

Wallace McKelvey of The Patriot-News of Harrisburg, Pennsylvania has an update headlined "Gov. Tom Wolf declares moratorium on death penalty in Pa."

And The Pittsburgh Tribune-Review has a news update headlined "Pennsylvania Gov. Tom Wolf imposes death penalty moratorium."

You can access Pennsylvania Governor Tom Wolf's "Death Penalty Moratorium Declaration" at this link.
Posted at 12:15 PM by Howard Bashman



"Alabama school wants alleged rape victim to reveal name": The Associated Press has this report on a case pending on appeal in the U.S. Court of Appeals for the Eleventh Circuit.
Posted at 12:05 PM by Howard Bashman


"[T]raditionally the Rules Committees do not amend a rule unless there is a very good reason to do so": This post, including its title, collects quotations from the FRAP Advisory Committee's draft minutes from the session at which the controversial proposed briefing word limit reduction amendment was discussed in greatest detail and approved for initial publication by a 6-to-4 vote.
"An appellate judge * * * wondered whether the bar would be shocked by a proposal to reduce length limits to 12,500 words";

"[S]ome circuits are unwilling to grant permission to file an over-length brief";

"An attorney member responded that he is generally hesitant to request such permission [to file an over-length brief]; another attorney member noted that he shares this reluctance. Mr. Letter noted that the circuits vary in their willingness to permit over-length briefs. An attorney member suggested that, since 1998, circumstances may have changed; perhaps the law is more complex, and perhaps lawyers are more prone to prolixity.";

"The more stringent the length limit, the more likely that a litigant might fail to brief an issue that the court believes should have been addressed.";

"In complex cases, lawyers need the full 14,000 words, and a reduction to 12,500 would force lawyers to spend time trying to reduce the length yet further or seeking permission to file an over-length brief.";

"An attorney member stated that he opposed the reduction in briefing length limits. If attorneys use the full permitted length, it is because the case requires it.";

"An appellate judge member reported a different experience; in the Eleventh Circuit, he said, lawyers tend to use all the space that is permitted to them. This judge member noted that the choice of length limit presents a tradeoff: One prefers shorter briefs when possible, but in complex cases one wants the briefs to help work out all the issues.";

"Another appellate judge member stated that he supported shortening the length limits; he reported that briefs seem to be about 60 pages long now, and 50 pages would be preferable."

With regard to that final comment, it is worth noting that even the proposed 12,500-word limit for principal federal appellate briefs would not necessitate the filing of briefs shorter than 60 pages, as this Brief for Appellant that I filed in the U.S. Court of Appeals for the Third Circuit in 2011 demonstrates. It contained 12,195 words and consisted of 64 pages of Century Schoolbook 14-point type. If the desire is to avoid briefs any longer than 50 pages, perhaps a 10,150-word limit for principal federal appellate briefs should be adopted.

Next Tuesday is the deadline for public comments supporting or opposing the proposed briefing word limit reduction. Comments must be submitted online via this link.
Posted at 11:20 AM by Howard Bashman



"Clergy-marriage bill clears Oklahoma House; The bill would codify ministers' rights to refuse to perform weddings": This article appears in today's edition of The Tulsa World.

And Reuters reports that "Oklahoma bill would protect clergy who won't perform gay marriages."
Posted at 10:25 AM by Howard Bashman



"The Scalia/Ginsburg Reality Show: A 'not 100 percent sober' friendship." Robert Barnes of The Washington Post has this report.
Posted at 10:20 AM by Howard Bashman


"High court's odd couple on parasailing, elephants and not being '100% sober'": Ariane de Vogue of CNN.com has this report.
Posted at 08:40 AM by Howard Bashman


"As sign-up deadline nears, a new risk for Obama health law": The Associated Press has this report.
Posted at 08:35 AM by Howard Bashman


"LePage asks U.S. Supreme Court to review Medicaid case; The governor's request to remove about 6,000 low-income young adults from the Medicaid rolls was rejected by a federal court": The Associated Press has this report.
Posted at 08:33 AM by Howard Bashman


"Kentucky high court weighs whether voluntary underage sex should be a crime": The Associated Press has this report.
Posted at 08:32 AM by Howard Bashman


Thursday, February 12, 2015

"Federal judge clears the way for gay marriage to start in Mobile": Brendan Kirby of The Mobile Press-Register has this news update.

Campbell Robertson of The New York Times has a news update headlined "U.S. Judge Orders Alabama Official to Issue Same-Sex Marriage Licenses."

And The Associated Press reports that "Federal judge in Alabama orders county to wed gay couples."
Posted at 05:20 PM by Howard Bashman



"Lawyers ask for broad order making clear that gay marriage is law of land in Alabama": Brendan Kirby of The Mobile Press-Register has this news update.

And The Associated Press reports that "Alabama county's refusal to wed gays goes to federal court."
Posted at 04:05 PM by Howard Bashman



"Chris Cuomo Battles AL Justice Roy Moore in Epic 25 Minute Interview on Gay Marriage": Mediaite has this post linking to the video of the interview.

And Brian Lyman of The Montgomery Advertiser reports on the interview in a news update headlined "Sparks fly as Roy Moore, Chris Cuomo talk gay marriage on CNN."
Posted at 03:35 PM by Howard Bashman



"A New Surprise Twist In The Big Anti-Obamacare Lawsuit Before SCOTUS?" Sahil Kapur of TPM DC has this report today.
Posted at 03:32 PM by Howard Bashman


"Ruth Bader Ginsburg Isn't Giving Up Her Fight for Women's Rights; The Supreme Court justice's biggest battle begins with the male majority sitting next to her": Greg Stohr of Bloomberg News has this report.

You can view the video of the Bloomberg News interview yesterday with Justice Ruth Bader Ginsburg via this link.
Posted at 03:14 PM by Howard Bashman



In reader email: A reader sends along an email with the subject line "Praise for 'Down with Notorious R.B.G.' post."

The reader writes:

As a daily reader of your blog, I take it for what it is: a serious effort to assist others in staying abreast of issues in appellate law. I treat time spent on your site as professional development time, and its reading is normally a somber and deliberate act.

So you can imagine my surprise when, in reading your post this morning captioned "Down with 'Notorious R.B.G.", I found that the example you cited for the meaning of that idiomatic phrase was Naughty by Nature's OPP. My colleagues' distraction and the coffee splashes on my desk are a small price to pay for that sort of quality laughter.


Posted at 03:09 PM by Howard Bashman


Why your comments for or against the proposed FRAP briefing word limit reductions can make a difference: Apparently this controversial proposal was approved for publication by the Advisory Committee on Appellate Rules by a vote of 6-to-4.

The closeness of that initial vote to publish the proposal for public comment indicates that the proposal's fate remains unclear. The draft minutes of the Advisory Committee from the session at which the word limit reduction proposal was discussed in greatest detail, before the 6-to-4 vote was taken, can be accessed here.

Public comments on the proposal can be submitted up until 11:59 p.m. eastern time next Tuesday via this link.
Posted at 03:00 PM by Howard Bashman



"Expanding Our Understanding of Narrowing Precedent": Kevin C. Walsh had this post yesterday at JOTWELL.
Posted at 01:37 PM by Howard Bashman


Access today's newly posted public comments on the FRAP word limit reduction proposal: The Center for Constitutional Litigation has submitted this comment opposing the reduction.

Jason C. Rylander, Senior Attorney, Defenders of Wildlife, has submitted this comment opposing the reduction.

And attorney Stanley Neustadter has submitted this comment supporting the reduction.

Whether you oppose or support the word limit reduction proposal, you can submit your own public comment via this link.
Posted at 01:22 PM by Howard Bashman



"Appeals Court to Hear Petition to Change Boston Marathon Trial Venue": Katharine Q. Seelye of The New York Times has this news update.

Milton J. Valencia of The Boston Globe has a news update headlined "Court to hear defense request to move Tsarnaev trial."

And Laurel J. Sweet and Owen Boss of The Boston Herald have a news update headlined "Court orders hearing on Tsarnaev bid to move Marathon trial."
Posted at 01:12 PM by Howard Bashman



"Pawtucket murder victim was brother of R.I. Supreme Court justice": The Providence Journal has this news update.
Posted at 11:23 AM by Howard Bashman


"Appeals court to hold hearing on Tsarnaev bid to move trial": The Associated Press has this report.

And Reuters reports that "U.S. appeals court to hear arguments on moving Boston bombing trial."

You can access today's order of the U.S. Court of Appeals for the First Circuit, which includes a statement concurring in part and dissenting in part from Circuit Judge Juan R. Torruella, at this link.
Posted at 10:58 AM by Howard Bashman



"Down with 'Notorious R.B.G.'" Ariane de Vogue of CNN.com has this report today. The article suggests that the headline means to convey the positive, rather than the negative, meaning of "down with" (see, e.g.).
Posted at 10:50 AM by Howard Bashman


"Third Circuit rules narrowly on 'authorization' under the CFAA": Orin Ker has this post today at "The Volokh Conspiracy" about an unpublished, non-precedential ruling that the U.S. Court of Appeals for the Third Circuit issued last Thursday.
Posted at 08:32 AM by Howard Bashman


"Federal court reverses injunctions by Pittsburgh judges on contraception mandate": Torsten Ove has this article in today's edition of The Pittsburgh Post-Gazette.

My earlier coverage of yesterday's Third Circuit ruling can be accessed here.
Posted at 08:27 AM by Howard Bashman



"The Harms of Issuing Non-Precedential Opinions": David R. Cleveland had this post Tuesday at the "Appellate Advocacy Blog."
Posted at 08:20 AM by Howard Bashman


"Facing Mixed Messages, Alabama May Gain Clarity on Gay Marriage": Campbell Robertson of The New York Times has this news update.

In today's edition of The Montgomery Advertiser, Brian Lyman has a front page article headlined "23 counties now issuing same-sex marriage licenses, says HRC." According to the article, Alabama has 67 counties.

And The Associated Press has a report headlined "Gay couples in court in Alabama: Give us marriage licenses."
Posted at 08:16 AM by Howard Bashman



"Ruth Bader Ginsburg Thinks Americans Are Ready for Gay Marriage": Greg Stohr of Bloomberg News has this report, along with an article headlined "Ginsburg Wanted to Skip Hospital Trip During Workout Heart Scare."

Bloomberg News has also posted online three video clips from yesterday's interview: "Ginsburg: Doubt Gay Marriage Won't Be Widely Accepted"; "Ginsburg: I'm Not Retiring Yet From Supreme Court": and "Ginsburg on Same-Sex Marriage, Women's Rights, Health."
Posted at 08:02 AM by Howard Bashman



Wednesday, February 11, 2015

"We have put aside common sense in order to federalize conduct which we believe needs to be punished." So writes First Circuit Judge Juan R. Torruella in a Commerce Clause-related concurring opinion issued today.
Posted at 11:14 PM by Howard Bashman


"Minnesota Supreme Court finds implied-consent law for drunken drivers constitutional; Dissenting justices accuse court of departing from Fourth Amendment": The Minneapolis Star Tribune has this news update.

You can access today's ruling of the Supreme Court of Minnesota at this link.
Posted at 10:54 PM by Howard Bashman



"Six applicants for state Supreme Court": The News Journal of Wilmington, Delaware has this news update.
Posted at 10:48 PM by Howard Bashman


"Kansas lawmakers tangle over judicial reform amendments; Rivals debate work of nominating commission as biased, fair": Tim Carpenter of The Topeka Capital-Journal has a news update that begins, "Judicial selection reformists and status quo adherents battled Wednesday about merit of state constitutional amendments to transform appointments to the Kansas Supreme Court and Kansas Court of Appeals."
Posted at 10:46 PM by Howard Bashman


"State won't appeal ruling on sex offender tracking": Bob Egelko of The San Francisco Chronicle has this news update.
Posted at 10:44 PM by Howard Bashman


"Fisher requests Supreme Court hear case against UT a second time": The Daily Texan has this news update.
Posted at 10:40 PM by Howard Bashman


"Alabama Supreme Court punts on request for 'clarification' of Roy Moore's marriage order": Brendan Kirby of The Mobile Press-Register has this news update.

You can access today's order of the Supreme Court of Alabama, and the opinions concurring therein, at this link.

And at Politico Magazine, Eric Velasco has an article headlined "The Gospel According to Roy: The crusading Alabama chief justice has picked what might just be America's final fight over same-sex marriage."
Posted at 10:33 PM by Howard Bashman



"In Sort-of-Defense of Roy Moore": Emily Bazelon has this essay online at The New York Times.
Posted at 09:02 PM by Howard Bashman


"The Supreme Court's class action underachiever": Alison Frankel's "On the Case" from Thomson Reuters News & Insight has this report today.

My earlier coverage of yesterday's Second Circuit ruling that is the subject of Frankel's column today can be accessed here (first paragraph) and here.
Posted at 05:44 PM by Howard Bashman



"Senate passes bill to help victims of child pornography": The Associated Press has this report.

You can access the text of the proposed "Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2015" at this link.
Posted at 05:20 PM by Howard Bashman



"U.S. Appeals Court reverses birth control ruling": Brian Bowling and Megha Satyanarayana of The Pittsburgh Tribune-Review have a news update that begins, "Certifying that they object to providing health insurance coverage for contraceptive services doesn't place a 'substantial burden' on the rights of religious nonprofits, a federal appeals court ruled Wednesday."

You can access today's ruling of a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit at this link.

Meanwhile, in related coverage, AL.com reported last week that "EWTN argues in 11th Circuit Court against Obamacare contraception mandate."
Posted at 04:08 PM by Howard Bashman



"Federal judges are not infallible; Don't upend marriage, the most hallowed institution in human history": Chief Justice Roy S. Moore of the Supreme Court of Alabama has this op-ed online at The Montgomery Advertiser.

And the newspaper has also published its own editorial headlined "Moore's tactics make him Wallace of today."
Posted at 04:05 PM by Howard Bashman



"Fuller case may be costly for taxpayers": This editorial appears online today at The Montgomery (Ala.) Advertiser.
Posted at 04:00 PM by Howard Bashman


Access online the contents of the February 2015 issue of the Harvard Law Review: Via this link.
Posted at 03:42 PM by Howard Bashman


From page four of the Reed Smith LLP appellate group's public comment in opposition to the FRAP briefing word limit reduction proposal: Here's one more reason to oppose the FRAP briefing word limit reduction proposal:
[T]his word reduction proposal threatens the primary tool left to parties in the system to advocate their case. Over the past decade, the Courts of Appeals have reduced opportunities for oral argument and have emphasized the importance of briefing. Now, the Advisory Committee's proposal threatens to reduce the limit on words in this "most important" aspect of the appellate process. For the litigants in the system, these steps affect the appearance of how appellate justice is delivered.
For better or worse, means of non-verbal communication have rarely proved effective in winning appeals.
Posted at 02:18 PM by Howard Bashman


"The Chief Justice Has Never Been Pulled Over in His Life: Why John Roberts' naivete matters to anyone who cares about policing." Cristian Farias has this jurisprudence essay online today at Slate.
Posted at 01:32 PM by Howard Bashman


"'Death Knell' To Anti-Eruv Church-State Argument? 2nd Circuit's ruling on Westhampton Beach ritual boundary likely to have wide-ranging effects." This article appeared in The New York Jewish Week a little over one month ago reporting on a non-precedential ruling that the U.S. Court of Appeals for the Second Circuit issued in early January 2015.

Today, the Second Circuit reissued the decision as a precedential per curiam opinion.
Posted at 01:20 PM by Howard Bashman



Four new public comments have appeared online today opposing the FRAP briefing word limit reduction: You can access all of the comments that appear online thus far via this link.

In particular, I urge readers to consider the especially persuasive comment submitted by the Reed Smith LLP appellate group.

Another detailed comment, accompanied by supporting data, comes from the State Bar of Texas Appellate Section. Although everything's bigger in Texas, it is nonetheless noteworthy that this group also opposes the word limit reduction.

The California Academy of Appellate Lawyers also opposes the word limit reduction, as does Steven M. Klepper
Posted at 01:03 PM by Howard Bashman



A reader anticipates perhaps the best (and no doubt most impractical) solution to overly long federal appellate briefs -- a word limit individually customized to each appeal: A reader emails:
Thank you for your advocacy against the word count proposal. As a long-time appellate practitioner, I share your view that the word count reduction is misguided, and I wanted to pass on one more reason why I think that is so.

The real problem with it, in my view, is it will require the courts to engage in far more micro-managing of the briefing. Right now, most of us with appellate experience treat the 14,000 word count as a real upper limit; in the vast majority of appeals, there is no reason even to approach it, and even in the more complicated appeals we should make every effort to stay within 14,000 words before asking for extra room, a request that we understand will be entertained as a matter of grace rather than right.

If this proposal goes through, I'm positive the result will be that the courts will have to deal with many more motions for extra room, and that just makes things more complicated for everyone.

I agree with the sentiment animating the proposal -- that most briefs do not require 14,000 words -- but I don't think it makes sense for the courts to take on the task of being the arbiters of which briefs do require that many words and which do not. I don't think the courts want to begin developing a jurisprudence around which appeals require more than 12,500 words, but this proposal, if adopted, will set them down that path. Whatever judges think they may gain in efficiency by reducing brief size they will surely give back in motion practice.

On the other hand, couldn't someone -- be it a federal appellate judge or clerk's office employee -- spend 10 to 20 minutes per new appeal reviewing the opinion(s) appealed from and the trial court briefing and assign a customized word limit to each and every appeal? That is no doubt the best possible solution to any problem that currently exists with overly long appellate briefs. Why instead adopt a second-best approach that only serves to penalize those appellate advocates who often handle the most complex and important appeals?
Posted at 11:44 AM by Howard Bashman


"Justice Thomas on Signaling in SSM Cases": Richard M. Re recently had this post at "PrawfsBlawg."
Posted at 11:30 AM by Howard Bashman


"'Fisher II' reaches the Court": Lyle Denniston has this post today at "SCOTUSblog."
Posted at 11:25 AM by Howard Bashman


How did 14,000 words become the limit for principal federal appellate briefs? The FRAP advisory committee's official note explaining the reason for the proposed amendment that would reduce the length of a principal appellate brief offers a single justification -- that the current 14,000-word limit was adopted in error and that a 12,500-word limit was the limit that should have been adopted instead when the rules switched from a page-count limit to a word-count limit.

In a public comment posted online on September 11, 2014, Seventh Circuit Judge Frank H. Easterbrook explained that no mistake was made. Rather, according to Judge Easterbrook, a 14,000-word limit was purposefully adopted. Thus, if Judge Easterbrook is correct -- and in my experience he usually is -- the lone official explanation offered for changing the word limit is invalid.

But, sadly, a far more nefarious issue has arisen. We expect the discussion on rule changes to be transparent, meaning that the reasons for changing a rule -- be they one or many -- will be revealed. A reason, and perhaps the only real reason, for the proposal to reduce the maximum FRAP briefing word limit is that at least some (and perhaps many) federal appellate judges believe that the current 14,000-word limit produces unnecessarily long briefs. Unfortunately, because the advisory committee's note fails to mention this reason, perhaps some potential commenters do not realize that this is the issue that really deserves everyone's consideration and discussion.

Indeed, one very influential supporter of the word count reduction proposal, in his public comment, has already played the judicial trump card -- namely, only appellate judges have the necessary perspective to decide whether a reduction in the size limit for federal appellate briefs is or is not a good idea. Many will no doubt recall that precisely this same argument -- judges know best -- was advanced by Ninth Circuit Judge Alex Kozinski and his followers in opposing the FRAP amendment allowing citation to unpublished, non-precedential federal appellate rulings. That argument did not carry the day then, and I trust that it will not carry the day now.

One thing that Judge Easterbrook's comment has apparently spawned is the FRAP advisory committee's preparation of more materials about the history of the adoption of the current 14,000-word limit than any sane person might wish to review. Nevertheless, if any readers do wish to review that additional background material, I have posted it online here and here.
Posted at 11:20 AM by Howard Bashman



More FRAP word count-related reader email: A reader emails:
As a long-time federal law clerk, I agree that further "word length" restrictions are mostly a solution in search of a problem.

If one side's brief rambled on too long without telling me what I needed to know, I set it aside for the moment and let the opposing party's brief educate me about the case.

Sort of a 'free market'' solution to the problem, which may be what Judge Easterbrook is advocating

Beware also of unintended consequences. For example, further restricting word counts may encourage solicitation of more "amicus" briefs, to develop matters not covered as fully in the briefs of the parties.

(To truly reduce useless reading, we could start by shortening some interminable judicial opinions. Oh wait.... every sentence and footnote in there is essential. I see, Your Honor.)

The comment from Seventh Circuit Judge Frank H. Easterbrook to which I assume my correspondent is referring can be accessed here.
Posted at 10:52 AM by Howard Bashman


"Judge Damon Keith's legacy looms large": The Detroit News has this report.
Posted at 10:46 AM by Howard Bashman


"How Obamacare Supporters Are Plotting To Win Over Anthony Kennedy": Sahil Kapur of TPM DC has this report.
Posted at 10:44 AM by Howard Bashman


Tuesday, February 10, 2015

"Illinois Supreme Court justice draws fire in tobacco case": Crain's Chicago Business today has an article that begins, "As the Illinois Supreme Court prepares to hear a $10.1 billion appeal by the parent company of Philip Morris USA, new questions are emerging about the impartiality of a key justice."
Posted at 11:03 PM by Howard Bashman


"Judge Deno Himonas gets nod from Senate committee for Utah Supreme Court": Pamela Manson of The Salt Lake Tribune has this news update. According to the article, "If approved, Himonas, who is Greek Orthodox, would be the only non-Mormon on the Supreme Court."
Posted at 10:57 PM by Howard Bashman


"Powder found at Supreme Court building not hazardous": The Tennessean has this news update.
Posted at 10:52 PM by Howard Bashman


"Conflicts Mount Between State and Federal Courts; Strife in Alabama Comes as State Jurists Increasingly Ignore Opinions by U.S. Judges": Joe Palazzolo will have this article -- perhaps inspired at least in part by a post that appeared earlier today at "How Appealing" -- in Wednesday's edition of The Wall Street Journal.
Posted at 10:25 PM by Howard Bashman


"'Jersey Boys' Lawsuit Back On After Appeals Court Parses Meaning of a Biography; A two-decade-old unpublished autobiography is causing trouble for producers of 'Jersey Boys'": Eriq Gardner has this post today at the "Hollywood, Esq." blog of The Hollywood Reporter.

And The Associated Press reports that "Court revives copyright lawsuit against singer Frankie Valli."

My earlier coverage of today's Ninth Circuit ruling appears at this link.
Posted at 09:30 PM by Howard Bashman



"2nd Circ. Revives Applebee's Workers' Wage-And-Hour Suit": Law360.com has this report (subscription required for full access).

My earlier coverage of today's Second Circuit ruling appears in the first paragraph of this post.
Posted at 09:16 PM by Howard Bashman



"Patent licenser Helferich wins court round against New York Times, others": Diane Bartz of Reuters has this report.

And Law360.com reports that "Fed. Circ. Restores NY Times Mobile Alert Patent Row" (subscription required for full access).

My earlier coverage of today's Federal Circuit ruling appears at this link.
Posted at 09:14 PM by Howard Bashman



"US court allows 'sewer service' debt collection class action": Jonathan Stempel of Reuters has this report.

The Associated Press reports that "NY federal appeals court OKs class for debt collection suits."

And Courthouse News Service reports that "'Sewer Service' Classes Upheld by 2nd Circuit."

My earlier coverage of today's Second Circuit ruling appears in the second paragraph of this post.
Posted at 08:36 PM by Howard Bashman



"Who is Roy Moore? The judge at the center of Alabama's muddled gay marriage situation." The Washington Post has this report.

And AL.com editorial cartoonist J.D. Crowe asks "Should Roy Moore be vaccinated against same-sex marriage?"
Posted at 05:44 PM by Howard Bashman



Some reader input on the proposed FRAP briefing word limit reduction: Charles Roth, Director of Litigation, National Immigrant Justice Center has submitted this comment via the official comment system, where apparently it is in the queue awaiting approval and public access.

And a longtime reader of this blog who self-describes as "a practicing attorney, whose primary practice is writing briefs in district court and occasionally in appellate court" offers the following comments:

I am not persuaded that the fact that 4 excellent attorneys write briefs of almost 14,000 words means that is the right limit.

That is like saying that baseball games should be 9 innings long or football games should be 60 minutes long because the best baseball and football players play in games of that length. Or maybe it it like saying that a basketball hoop should be 10 feet high because that is what the best basketball players play with.

To be persuasive, you need to show that having the suggested word limits would reduce the quality of the briefs. Without doing so, you are also making the point that word limits should be discarded altogether, because if Paul Clement and Miguel Estrada were able to draft a 200,000 word brief, it would be the best written, ever. But, you know what, if the basketball hoop were lowered to 8 feet, there would be more people who could dunk the ball.

Were I to chime in on the subject, I would point out that mandatory portions of the brief, i.e., jurisdictional statement, which normally do not matter much (on occasion they do), count against the word limits.

I have a lot of empathy for appeals court judges in this matter. They have a ton of reading to do. If they can get the principle briefs down in size, perhaps they will be able have more time for other judge-related activities, i.e., writing decisions.

Until you have had to read some of the horrific briefs that are filed with the appellate courts, I don't know if you can ever be persuasive on this subject. Not every appellate attorney chooses to spend as much time on appellate brief-writing as you do.

This comment highlights an important issue -- namely, whether the rule change should be evaluated from the perspective of excellent appellate advocacy or the worst that appellate advocacy has to offer.

In my view, an indecipherable or utterly horrid 14,000-word brief does not necessarily require 10 percent more judicial attention than a 12,500-word brief of the same quality. But then I am willing to assume that when an especially talented appellate advocate opts to submit a brief whose word count falls between 12,500 and 14,000 words, a darn good reason existed for not submitting a shorter brief. Thus, I indeed am concerned that the rule change will prevent the most effective appellate advocates from doing the best possible job for their clients in cases sufficiently complex to require a brief whose word count falls between 12,500 and 14,000 words.
Posted at 05:11 PM by Howard Bashman



"At some federal courts, 'hear ye' remains hard to hear": Richard Wolf of USA Today has this report.
Posted at 04:54 PM by Howard Bashman


"Congress plans budget for Fuller impeachment": Mary Troyan of The Montgomery Advertiser has this report.
Posted at 04:50 PM by Howard Bashman


How rife of a problem are unnecessarily long federal appellate briefs? Before I adjourn today's rants on this issue, I am pleased to provide readers of this blog with an interesting data point that will put this entire debate into context.

Aside from the counter-intuitive fact that appellate briefs that are unnecessarily long may actually make appeals in which they are filed easier to decide, it turns out that -- if data compiled by the Clerk of the U.S. Court of Appeals for the Eighth Circuit are any indication -- the proposal under consideration to lower the word limits applicable to federal appellate briefs by more than 10 percent may be a solution in search of a problem.

According to the data -- at least as I understand it -- in the Eighth Circuit, a mere 15 percent of principal briefs longer than 30 pages contain between 12,500 and 14,000 words. Let's therefore assume that the rule change would affect the maximum size of briefs in only 10 to 15 percent of the cases, although the actual number may be even smaller than 10 percent.

Keeping in mind that the proposed word limit reduction would do nothing to eliminate unnecessarily lengthy appellate briefs that happen to remain under 12,500 words, and that some appellate briefs necessarily will fall between 12,500 and 14,000 words (as two of my posts from earlier today demonstrate, here and here), the question remains -- has a need for this rule change been established?
Posted at 04:10 PM by Howard Bashman



Who are these irresponsible and unconstrained lawyers inflicting unnecessarily long briefs on the federal appellate courts? Today, the U.S. Court of Appeals for the Federal Circuit decided a case captioned Helferich Patent Licensing, LLC v. The New York Times Co. You can access the ruling at this link. I will leave it up to my friends at the "Patently-O" blog to summarize this ruling should they deem it sufficiently worthy.

One thing that caught my eye about the case was the high profiles of many of the lead attorneys involved. Aaron M. Panner represented the plaintiff-appellant, which prevailed on appeal. And Daryl Joseffer was lead counsel for the defendants-appellees, submitting a brief in which Edward R. Reines joined.

For those keeping score at home, the Brief for Appellant contained 13,515 words, the Brief for Appellees contained 13,973 words, and the Reply Brief for Appellant contained 6,884 words. Each of these briefs is considerably in excess of the new word limits now under consideration for the Federal Rules of Appellate Procedure.
Posted at 04:10 PM by Howard Bashman



In today's mail: I received a complimentary copy of "The Legacy of Ruth Bader Ginsburg" (Scott Dodson, editor). Given the stellar list of contributors, I am very much looking forward to reading this book.
Posted at 03:10 PM by Howard Bashman


"Judicial Conference Declines to Implement Same-Day Audio Standard for Appellate Arguments": The Coalition for Court Transparency has this blog post today.
Posted at 02:55 PM by Howard Bashman


"Argument Recap: The Critical Difference in How al-Nashiri Loses." Steve Vladeck has this post today at the "Lawfare" blog.

You can access via this link the audio of today's oral argument before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit (28.4 MB mp3 audio file).
Posted at 02:50 PM by Howard Bashman



"Judge Allows SiriusXM to Appeal Big Ruling Over Pre-1972 Music; The issue of whether copyrights to older sound recordings like ones owned by The Turtles protect against unauthorized public performance is now headed to a high-stakes showdown at the 2nd Circuit": Eriq Gardner has this post today at the "Hollywood, Esq." blog of The Hollywood Reporter.
Posted at 02:47 PM by Howard Bashman


Ninth Circuit reverses in "Jersey Boys" copyright infringement summary judgment appeal: You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 01:55 PM by Howard Bashman


"This King has no clothes: How the case against the ACA is unraveling before our eyes." Joey Meyer and Brianne Gorod have this essay online today at the Constitutional Accountability Center.
Posted at 01:38 PM by Howard Bashman


"We hold that Comcast does not mandate that certification pursuant to Rule 23(b)(3) requires a finding that damages are capable of measurement on a classwide basis." You can access today's ruling of a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit at this link.

The Second Circuit today also issued a separate ruling affirming by a vote of 2-to-1 class certification in an appeal in which Paul D. Clement and Miguel A. Estrada represented different groups of defendants-appellants. The opening brief that Clement filed on behalf of his clients contained 13,758 words according to its certificate of compliance. And the opening brief that Estrada filed on behalf of his clients contained 13,975 words according to its certificate of compliance. [Yes, I have just invested $7.40 cents ($3 per brief plus $1.40 for docket access) to demonstrate that even the most highly regarded, experienced appellate advocates sometimes find it necessary to file principal briefs in a federal appellate court that exceed 12,500 words, the proposed new maximum word limit.]
Posted at 01:26 PM by Howard Bashman



"A House Divided: When State and Lower Federal Courts Disagree on Federal Constitutional Rights." Law professor Wayne A. Logan posted this article last month online at SSRN.
Posted at 01:04 PM by Howard Bashman


"The Moment for Marriage in Alabama": Amy Davidson had this post online yesterday at The New Yorker.
Posted at 12:56 PM by Howard Bashman


"How Atypical Cases Make Bad Rules: A Commentary on the Rulemaking Process." Law professor Suja A. Thomas and Dawson Price have this paper online at SSRN.
Posted at 12:18 PM by Howard Bashman


"Teacher who humiliated student can keep job, court rules": Peter Hall has this front page article in today's edition of The Morning Call of Allentown, Pennsylvania.

Sara K. Satullo of The Express-Times of Easton, Pennsylvania reports that "Pennsylvania court blocks firing of teacher that allegedly hung 'I abuse animals' sign on student." Satullo also provided earlier coverage of the case in an article headlined "School officials fight to fire teacher who hung 'I abuse animals' sign around disabled student's neck."

Matt Miller of The Patriot-News of Harrisburg, Pennsylvania reports that "School can't fire teacher who put 'I Abuse Animals' sign on autistic student, court rules."

And The Associated Press has a report headlined "Court: Rehire teacher who put 'I abuse animals' sign on boy."

You can access yesterday's unpublished ruling of the Commonwealth Court of Pennsylvania at this link.
Posted at 11:13 AM by Howard Bashman



Paying $540,000 for a 37-cent stamp: The "Federal Eye" blog of The Washington Post today has a post titled "Court upholds $540,000 judgment against USPS for Korean War stamp" about a ruling that the U.S. Court of Appeals for the Federal Circuit issued last Wednesday.
Posted at 10:58 AM by Howard Bashman


"Judge battles evaluators over recommendation to state Supreme Court": Chris Mondics has this article in today's edition of The Philadelphia Inquirer.

And The Centre Daily Times reports that "Judge Anne Covey suggests conflict of interest by Penn State trustee Keith Eckel."

My earlier coverage can be accessed here.
Posted at 08:27 AM by Howard Bashman



"After a delay, Cuomo gets his court": Capital New York today has an article that begins, "The state's highest court returned to full strength on Monday after the State Senate confirmed two of Governor Andrew Cuomo's nominees, giving the governor a majority of appointments to the court."
Posted at 08:21 AM by Howard Bashman


"For Alabama Chief Justice, Soldiering in Name of God Is Nothing New": Richard Fausset has this article in today's edition of The New York Times.
Posted at 08:17 AM by Howard Bashman


"Supreme Court to hear from thousands on gay marriage": Richard Wolf of USA Today has this report.
Posted at 08:12 AM by Howard Bashman


"Constitutional Law with Justice Ginsburg: Michigan Students Engage with Supreme Court Legend." The University of Michigan Law School has this report.
Posted at 08:02 AM by Howard Bashman


Monday, February 9, 2015

"New Questions Swirl on an Affordable Care Act Challenger; Plaintiff Listed Motel as Her Address, Which Was Basis for Her Legal Grounds": Louise Radnofsky and Brent Kendall will have this article in Tuesday's edition of The Wall Street Journal.
Posted at 11:59 PM by Howard Bashman


"State Department of Justice urges U.S. Supreme Court not to take up voter ID case": The Wisconsin State Journal has this report.

At his "Election Law Blog," Rick Hasen has posted the brief in opposition at this link.
Posted at 10:12 PM by Howard Bashman



"Justice Thomas's Dissent Hints of Supreme Court's Intentions on Same-Sex Marriage": Adam Liptak will have this article in Tuesday's edition of The New York Times.

Warren Richey of The Christian Science Monitor has an article headlined "Did Supreme Court justices tip their hand in Alabama gay marriage case?"

And Josh Gerstein of Politico.com reports that "Gay marriage supporters hear a clarion call; Advocates read a lot into Monday's dissent from Antonin Scalia and Clarence Thomas."
Posted at 09:12 PM by Howard Bashman



"Supreme Court to hear telemed-abortion case March 11": The Des Moines Register has this news update.
Posted at 09:06 PM by Howard Bashman


"When Size Does, and Does Not, Matter in Appellate Law": Tomorrow's edition of The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, will contain this month's installment of my "Upon Further Review" column.

You can freely access the full text of the column via Google.
Posted at 09:03 PM by Howard Bashman



"Obamacare and the Supreme Court: Four words could bring the law down." Steven Mazie has this post today at the "Democracy in America" blog of The Economist.

And Stephanie Mencimer of Mother Jones today has an article headlined "Meet the Unusual Plaintiffs Behind the Supreme Court Case That Could Destroy Obamacare; One has called Obama the 'anti-Christ'; Another didn't realize her case might wipe out health coverage for millions."
Posted at 08:55 PM by Howard Bashman



"Physician-assisted suicide opponents regroup after Supreme Court ruling": The Toronto Globe and Mail has this report.
Posted at 08:49 PM by Howard Bashman


"Pa. Bar rejects Republican Supreme Court pick, who fights back": Wallace McKelvey of The Patriot-News of Harrisburg, Pennsylvania has this report, along with an article headlined "Anne Covey's rebuke of Pa. Bar could come back to haunt her."

You can view the candidate's letter to the president of the Pennsylvania Bar Association at this link.
Posted at 08:12 PM by Howard Bashman



"Pro-gay marriage signals seen in U.S. Supreme Court action": Lawrence Hurley of Reuters has this report.
Posted at 06:20 PM by Howard Bashman


"Supreme Court Notebook: Scotusblog denied press credential." Sam Hananel and Mark Sherman of The Associated Press have this report.

You can access the U.S. Supreme Court's newly announced press credentialing rules via this link.
Posted at 05:28 PM by Howard Bashman



"Guantanamo Bay: wheels of justice turn slowly -- at $7,600 a minute; Cost estimate comes as military commissions' chief prosecutor proposes relaxing restrictions on lawyers raising their clients' torture by CIA in court." Spencer Ackerman of The Guardian (UK) has this report today.
Posted at 01:38 PM by Howard Bashman


"Even in prison, 'Whitey' Bulger is pushing boundaries": The Boston Globe has this report.
Posted at 01:32 PM by Howard Bashman


"Handwriting on the wall for gay marriage": Richard Wolf of USA Today has this report.

Robert Barnes of The Washington Post has a news update headlined "Clarence Thomas faults Supreme Court for refusing to block gay marriage in Alabama." In addition, Sandhya Somashekhar and Robert Barnes have a news update headlined "Alabama judge stakes out defiant stance against same-sex marriages."

Alan Blinder and Richard Perez-Pena of The New York Times have a news update headlined "Same-Sex Marriages Proceed in Alabama as State Judge's Order Is Defied."

Timothy M. Phelps and Kurtis Lee of The Los Angeles Times have a news update headlined "Alabama same-sex couples get marriage licenses as legal confusion swirls."

AL.com has reports headlined "Chaos reigns in Alabama as same-sex couples seek marriage licenses"; "'Extremely happy and glad it's finally legal,' proclaims same-sex marriage 'pioneer'"; "First gay couple to legally wed in Montgomery County met with congratulations; no hiccups in receiving license"; "'Could you do our ceremony?': 1st same-sex couples married in Etowah County"; "Attorneys for gay Mobile couple ask federal court to sanction Mobile County probate judge"; and "Alabama gay marriage: Denied a marriage license in conservative Calhoun County; Again."

And The Montgomery Advertiser has news updates headlined "Alabama same-sex couples marry as legal battle rages"; "Autauga probate judge waits for 'clarification'"; and "Elmore judge won't issue same-sex marriage licenses."
Posted at 12:56 PM by Howard Bashman



U.S. Supreme Court denies stay of same-sex marriage in Alabama: The Associated Press reports that "US high court won't stop gay marriages from starting in Ala."

You can access today's order of the U.S. Supreme Court at this link. Justice Clarence Thomas issued a dissent, in which Justice Antonin Scalia joined, from the denial of the stay.
Posted at 09:20 AM by Howard Bashman



"Can same-sex couples get married in Alabama? Live updates from across the state." AL.com has this report today.

And in today's edition of The Montgomery Advertiser, Brian Lyman has an article headlined "Emotions mixed as Ala. same-sex marriage battle heats up."
Posted at 08:04 AM by Howard Bashman



Sunday, February 8, 2015

"Legal clinic immerses aspiring lawyers in the political process": Maura Dolan will have this article in Monday's edition of The Los Angeles Times.
Posted at 11:11 PM by Howard Bashman


"Roy Moore orders ban on same-sex marriage licenses": Brian Lyman of The Montgomery Advertiser has a news update that begins, "Alabama Chief Justice Roy Moore Sunday evening ordered probate judges in the state of Alabama to not issue marriage licenses to same-sex couples, potentially setting up a showdown between Moore and the federal courts." You can view the order at this link.

Kelsey Stein of The Birmingham News has an update headlined "Alabama Chief Justice Roy Moore orders judges not to issue same-sex marriage licenses."

In Monday's edition of The New York Times, Alan Blinder will have an article headlined "Gay Marriage Set to Begin in Alabama Amid Protest."

And The Associated Press has a report headlined "Ala chief justice tells judges: Refuse gay marriage licenses."
Posted at 11:05 PM by Howard Bashman



"Appeal to reverse baseball's antitrust rule is a desperate swing for the fences": Robert Barnes will have this article in Monday's edition of The Washington Post.
Posted at 10:58 PM by Howard Bashman


"Nebraska, Oklahoma in border war with Colorado over marijuana": The Los Angeles Times has this report.
Posted at 01:36 PM by Howard Bashman


"Next Witness: Will The Yellow Smiley Face Take The Stand?" This audio segment appeared on today's broadcast of NPR's "Weekend Edition Sunday."
Posted at 01:34 PM by Howard Bashman


"Alabama probate judges refusing to issue marriage licenses to same-sex couples could face sanctions": Kent Faulk has this front page article in today's edition of The Birmingham News. In addition, Brendan Kirby has articles headlined "Gay marriages start Monday in Alabama: Here's a primer on what to expect" and "Activist judge? Careful jurist? Meet the woman who made gay marriage legal in Alabama."

The Montgomery Advertiser contains a front page article headlined "Gay rights '... a really new thing for Alabama.'"

In commentary, columnist John Archibald of The Birmingham News today has an op-ed headlined "Roy Moore may have been elected, but he hasn't changed jobs."

And in news from Indiana, The Indianapolis Star reports that "Munster woman in Indiana's 1st same-sex marriage dies."
Posted at 10:00 AM by Howard Bashman



"Geoffrey Nettle's appointment shows how bench retirement age needs to better reflect society": Law professor George Williams has this essay online today at The Sydney Morning Herald.
Posted at 09:34 AM by Howard Bashman


"State Supreme Court ruling a long time coming": The Associated Press has this report.

Of course, as readers of this blog may recall, sometimes an inordinately long wait for an appellate court's ruling can have a happy ending.
Posted at 09:24 AM by Howard Bashman



"Supreme Challenge: Area lawyers await ruling on an Internet-threats case with national interest." Chris Mondics has this front page article in today's edition of The Philadelphia Inquirer.
Posted at 09:20 AM by Howard Bashman


Saturday, February 7, 2015

"King lawyers: Veterans coverage won't upend Obamacare challenge." Jennifer Haberkorn of Politico.com has this report.
Posted at 09:22 PM by Howard Bashman


"Supreme Court assisted suicide ruling too late for cancer patient; Landmark decision allows Parliament one year to bring in a new law -- but Jim Woodford, who has terminal cancer, fears he won't last that long": The Toronto Star has this report.
Posted at 09:05 PM by Howard Bashman


"Botched Protocols: The Supreme Court revisits the question of whether lethal injection amounts to cruel and unusual punishment." You can access episode 11 of Slate's Amicus podcast featuring Dahlia Lithwick via this link.
Posted at 08:55 PM by Howard Bashman


"Vikings great Alan Page plans life after state Supreme Court": The Associated Press has this report.
Posted at 08:47 PM by Howard Bashman


"Health Law Case Poses Conundrum for Republicans": Robert Pear will have this article in Sunday's edition of The New York Times.
Posted at 08:40 PM by Howard Bashman


"Adnan Syed granted appeal by Maryland court": Justin George and Kalani Gordon of The Baltimore Sun have this news update.

And The Associated Press reports that "Court will allow appeal from subject of 'Serial' podcast."
Posted at 04:55 PM by Howard Bashman



"Bowden: No same-sex licenses here." The Andalusia (Ala.) Star-News has an article that begins, "Probate Judge Ben Bowden announced Friday afternoon he will not issue marriage licenses to same-sex couples."
Posted at 01:07 PM by Howard Bashman


"U.S. appeals court rules Sun-Times illegally published details of cops in Koschman lineup": The Chicago Sun-Times has this report.

My earlier coverage of yesterday's Seventh Circuit ruling appears at this link.
Posted at 09:44 AM by Howard Bashman



"Canada Court Strikes Down Ban on Aiding Patient Suicide": This article appears in today's edition of The New York Times.

And today's edition of The Toronto Globe and Mail contains an article headlined "Families pushing for doctor-assisted suicide reflect on a bittersweet victory."

My earlier coverage of yesterday's Supreme Court of Canada ruling appears at this link.
Posted at 09:38 AM by Howard Bashman



"Appeals Court rules Alycia Lane's suit against CBS3 and Larry Mendte can move forward": Jeremy Roebuck has this article in today's edition of The Philadelphia Inquirer.

My earlier coverage of Thursday's Pa. Superior Court ruling appears at this link.
Posted at 09:32 AM by Howard Bashman



"Did the Supreme Court accidentally allow states to lower the drinking age with impunity?" Jeff Guo had this post yesterday at the "GovBeat" blog of The Washington Post.
Posted at 09:22 AM by Howard Bashman


Friday, February 6, 2015

"Ruth Bader Ginsburg reflects on career": The Detroit News has this report.

The Ann Arbor News has an article headlined "Ruth Bader Ginsburg on Notorious RBG, the power of dissent and breaking gender barriers."

And The Associated Press has a report headlined "No hint of retirement from Ginsburg in U-M lecture."
Posted at 11:02 PM by Howard Bashman



"TN Supreme Court may consider electric chair": The Tennessean has this report.
Posted at 10:54 PM by Howard Bashman


"Debate Escalates Over Cameras in Supreme Court": Tony Mauro has this post today at "The BLT: The Blog of Legal Times." You can freely access the full text via Google.
Posted at 10:46 PM by Howard Bashman


"Health-Law Challenger's Standing in Supreme Court Case Is Questioned; Lead Plaintiff Appears to Qualify for Medical Coverage Due to Veteran Status, Possibly Weakening Suit": Louise Radnofsky, Jess Bravin, and Brent Kendall will have this article in Saturday's edition of The Wall Street Journal.
Posted at 10:42 PM by Howard Bashman


"Tsarnaev trial should be moved to another venue": Columnist Thomas Farragher will have this op-ed in Saturday's edition of The Boston Globe.
Posted at 10:38 PM by Howard Bashman


"Senate Hearing Learns Of No Clear Plan To Close Guantanamo": Today's broadcast of NPR's "Morning Edition" contained this audio segment.
Posted at 06:02 PM by Howard Bashman


"Ala. Chief Justice Stirs Controversy Before Gay Marriage Becomes Legal": This audio segment appeared on today's broadcast of NPR's "Morning Edition."
Posted at 03:54 PM by Howard Bashman


"Face of Supreme Court case hates Obama, Obamacare": Jennifer Haberkorn of Politico.com has this report about David M. King, "the lead plaintiff on the Supreme Court case that challenges the government's right to grant tax subsidies to millions of Americans in certain states to make health insurance more affordable."
Posted at 01:30 PM by Howard Bashman


"We hold only that, where members of the press unlawfully obtain sensitive information that, in context, is of marginal public value, the First Amendment does not guarantee them the right to publish that information." So holds a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in a ruling issued today in a case captioned Dahlstrom v. Sun-Times Media, LLC.
Posted at 01:02 PM by Howard Bashman


"Forum Club 2,2,2015 Sonia Sotomayor": You can view the video on YouTube by clicking here.
Posted at 10:35 AM by Howard Bashman


"Talk amongst yourselves": Senior U.S. District Judge Richard G. Kopf has this post today at his "Hercules and the umpire" blog discussing a presentation he gave last night on the benefits of blogging.
Posted at 10:25 AM by Howard Bashman


"Chen seeks a second chance": Lyle Denniston has this post today at "SCOTUSblog."
Posted at 10:18 AM by Howard Bashman


Supreme Court of Canada recognizes right to doctor-assisted suicide: You can access today's unanimous ruling of Canada's highest court at this link.

In early news coverage, Sean Fine of The Toronto Globe and Mail reports that "Canadians have right to doctor-assisted suicide, Supreme Court rules."

The Toronto Star has a news update headlined "Supreme Court strikes down assisted suicide ban; Canada's highest court has struck down the law against assisted suicide and ordered Parliament to give desperately suffering patients greater control over how they die."

The Ottawa Citizen has a news update headlined "In historic ruling, Supreme Court strikes down ban on doctor-assisted death."

The Vancouver Sun has a news update headlined "Landmark Canadian Supreme Court ruling favours 'death with dignity.'"

CBC News reports that "Doctor-assisted suicide allowed by Supreme Court in specific cases; 1993 Rodriguez decision ruled against giving terminally ill the right to die."

And The Canadian Press reports that "SCC reverses course on doctor-assisted death."
Posted at 09:50 AM by Howard Bashman



"Death and taxes: Obamacare fight is a war of statistics." Richard Wolf of USA Today has this report.
Posted at 08:33 AM by Howard Bashman


"New rule lets inmates grow longer beards; Suit lost, prisons to allow religion-based exceptions": Today's edition of The Arkansas Democrat-Gazette contains an article that begins, "Arkansas prison system inmates can now grow a beard -- without length limitations -- if their religion dictates it."
Posted at 08:30 AM by Howard Bashman


"Teen sex a crime? Ky high court to hear case." The Courier-Journal of Louisville, Kentucky has this report.
Posted at 08:25 AM by Howard Bashman


"Judge Kistler 'Honored' by Nomination to Pa. Supreme Court, Regrets Having to Leave Centre County": Michael Martin Garrett had this article online yesterday at StateCollege.com.
Posted at 08:02 AM by Howard Bashman


Thursday, February 5, 2015

"Ten things to know about the Carter v. Canada case on assisted suicide": Sean Fine of The Toronto Globe and Mail has an article that begins, "On Friday, the Supreme Court will rule on whether individuals who are suffering unbearably have a constitutional right to control their own death."

When the Supreme Court of Canada issues its ruling in this case on Friday morning, I will provide a link to it.
Posted at 11:00 PM by Howard Bashman



"Who Doesn't Love a Hotel Discount? The Taxman; Expedia could owe $847 million in unpaid hotel taxes." Bloomberg News has this report. According to the article, "In coming weeks, Hawaii's Supreme Court is expected to hand down a decision in the biggest pending tax case."
Posted at 10:42 PM by Howard Bashman


"If you solicit spam emails, you can't sue for receiving them -- 4th Circuit": Alison Frankel's "On the Case" from Thomson Reuters News & Insight has this report today on a ruling that the U.S. Court of Appeals for the Fourth Circuit issued yesterday.
Posted at 10:38 PM by Howard Bashman


"End the cameraphobia in the Supreme Court": This editorial appears in today's edition of The Los Angeles Times.
Posted at 10:33 PM by Howard Bashman


"Florida's top court to decide if gay sex constitutes 'intercourse'": Reuters has this report.

The video of Wednesday's oral argument in the Supreme Court of Florida can be viewed online, on demand via this link.
Posted at 10:28 PM by Howard Bashman



"Supreme Court Justice and Circuit Judges Give SLS Students Insider's Look at Becoming a Judge": Stanford Law School News has a report that begins, "A sterling reputation is the key driver of success for lawyers, agreed U.S. Supreme Court Justice Elena Kagan and U.S. Circuit Judges Sri Srinivasan (JD/MBA '95, BA '89) and Raymond Kethledge during a conversation at Stanford Law School on Wednesday."
Posted at 09:54 PM by Howard Bashman


"JPMorgan Seeks Review of 'Seismic' Ruling on GM Loan": Linda Sandler of Bloomberg News has a report that begins, "JPMorgan Chase & Co. asked an appeals to reconsider a negative ruling on its $1.5 billion loan to General Motors Co.'s bankrupt predecessor, saying the decision caused a 'seismic' shift in the law."
Posted at 09:15 PM by Howard Bashman


"Conviction of Australian at Guantanamo court in doubt": The Associated Press has this report.

Earlier, at ProPublica, Raymond Bonner had an article headlined "U.S. Acknowledges Conviction of David Hicks, Guantanamo Detainee, Should Not Stand; Prosecutors acknowledge they accepted a guilty plea from an Australian man under a law that was passed after his alleged criminal conduct." ProPublica has posted online a copy of the United State's brief, which has not yet been officially released for public access.
Posted at 09:10 PM by Howard Bashman



Alycia Lane v. CBS Broadcasting and Larry Mendte decided today by the Pa. Superior Court: You can access today's unpublished, non-precedential ruling of the Superior Court of Pennsylvania at this link.

Back in March 2013, Molly Eichel of The Philadelphia Daily News had an article about the trial court's ruling headlined "Mendte fresh: Ex-CBS 3 anchor cleared in suit."
Posted at 04:28 PM by Howard Bashman



"Supporters Say Imprisoned Nun Is Being Held In 'Unfair' Conditions": Carrie Johnson had this audio segment, which included a comment from a retired federal appellate judge, on today's broadcast of NPR's "Morning Edition."
Posted at 03:14 PM by Howard Bashman


"U.S. Supreme Court halts Texas execution of convicted killer": Lawrence Hurley of Reuters has a report that begins, "The U.S. Supreme Court on Thursday put on hold the execution by Texas of convicted murderer Lester Bower as it considers whether to hear his full appeal including the assertion that his three decades on death row amount to cruel and unusual punishment."

You can access today's stay order of the U.S. Supreme Court at this link.
Posted at 01:37 PM by Howard Bashman



"Dying for a Conservative Cause: Republicans put liberty ahead of life." Mark Joseph Stern has this jurisprudence essay online at Slate.
Posted at 01:34 PM by Howard Bashman


"Lethal Rejection: Will the Supreme Court's Lethal Injection Review Kill the Death Penalty? The Supreme Court is reviewing lethal injection for the first time in seven years; Here's what it means for the death penalty." Annie Waldman of ProPublica has this report.
Posted at 01:25 PM by Howard Bashman


"Appeals Court Orders New Trial in Case Alleging Sexually Hostile Classroom": Mark Walsh has this post today at the "School Law" blog of Education Week.

My earlier coverage of yesterday's non-precedential Third Circuit ruling appears at this link.
Posted at 01:15 PM by Howard Bashman



I have decided to OPPOSE the word limit reduction on federal appellate briefs, plus an additional public comment opportunity for you: After much deliberation, I have decided to oppose the proposed amendment to the Federal Rules of Appellate Procedure that would reduce the maximum size of a principal appellate brief from 14,000 to 12,500 words.

I will more fully (yet succinctly) explain the basis for my opposition in a public comment that I intend to submit online via this link on the afternoon of Tuesday, February 17, 2014 -- the final day for the submission of public comments. Earlier public comments on this rule change proposal from particularly knowledgeable individuals indicate that the proffered motivation for this rule change is at best mistaken and at worst a subterfuge.

If federal appellate judges believe that appellate briefs ordinarily are unnecessarily long so as to pose a problem in need of correction, a variety of means exist to combat that problem. That is the debate that should be occurring right now over this proposal, which seeks to cure the supposed problem through the brute force equivalent of a bludgeon, inflicting damage far too widely.

That being said, I fully subscribe to the belief that shorter, more carefully focused appellate briefs tend to be far more powerful and effective than the alternative, and I believe that the examples of my own written appellate advocacy that I have posted online demonstrate that I have translated that belief into action. It is not unusual for appellate briefs that I file on behalf of my clients to be substantially shorter than the opposing parties' briefs, and my clients have nonetheless prevailed in a significant number of those appeals, whether they were the appellant or the appellee.

In the preceding blog post, immediately below, I lamented the paucity of public comments that this word length reduction proposal has received. As President Lincoln is credited with saying, "Better to remain silent and be thought a fool than to speak out and remove all doubt," an observation that I defy (or perhaps confirm) here on a daily basis.

The method for offering public comments does not seem to encourage anonymous comments, and perhaps someone who fears that he or she lacks something truly profound to say or that no one might care to hear his or her views might be discouraged from adding his or her voice to the discussion. Therefore, in addition to offering my own public comment opposing this rule change proposal, I am willing to include as an addendum to my own comment the insightful comments both for and against the rule change proposal that readers of this blog wish to forward to me via email to this blog's email address. In addition to your comment, please let me know whether I can include your name as the person who sent me the comment. I will gladly include all comments, with or without attribution as you request, that in my view meaningfully contribute to the conversation, whether or not they agree with my own views on this issue.

Only this morning, two new comments on the proposal have appeared online, one from the judges of the Tenth Circuit supporting the length reduction, and one from the general counsel of the EEOC opposing the length reduction.
Posted at 11:04 AM by Howard Bashman



New comments from the Los Angeles and New York City bar associations oppose reducing the word limit for principal appellate briefs from 14,000 to 12,500 words: You can access these newly submitted comments via this link.

The deadline for submitting comments on this proposal is 11:59 p.m. on Tuesday, February 17, 2015. Only 18 comments appear online thus far (and a few of those don't even address the size reduction), suggesting either that appellate practitioners don't care about the proposal, or not enough has been done to spread the word about the existence of this impending change, which will impose more than a ten percent reduction on the maximum permissible size of a party's principal appellate brief.
Posted at 09:00 AM by Howard Bashman



"Canadian doctors drafting new rules in case doors open to assisted suicide": The Toronto Globe and Mail has an article that begins, "If the Supreme Court of Canada takes the momentous step of striking down the law against assisted suicide on Friday, Canada's medical profession intends to play a significant part in crafting the new rules that would govern how the gravely ill choose to die in this country."
Posted at 08:50 AM by Howard Bashman


"Former Supreme Court justice's civics program among MacArthur grant winners": Julie Zauzmer of The Washington Post has this report.
Posted at 08:42 AM by Howard Bashman


"Jurisdiction stuffing as a means of combatting judicial supremacy": Kevin C. Walsh has this post at "Mirror of Justice."
Posted at 08:40 AM by Howard Bashman


"A Court of Review, or First View?" Richard M. Re has this post at "PrawfsBlawg."
Posted at 08:35 AM by Howard Bashman


"Supreme Court Justice Scalia Is Focus of Arena Stage's Political Drama The Originalist; Casting Announced": Playbill has this report.

And TheaterMania.com reports that "Complete Casting Announced for Arena Stage's The Originalist; John Strand's world-premiere play offers a theatrical account of Supreme Court Justice Antonin Scalia."
Posted at 08:25 AM by Howard Bashman



"The Supreme Court at Stake: Overturning Obamacare Would Change the Nature of the Supreme Court." Linda Greenhouse has this essay online at The New York Times.
Posted at 08:06 AM by Howard Bashman


Wednesday, February 4, 2015

"Patent 'Death Squad' Rules Owners Denounce Upheld by U.S. Court": Susan Decker of Bloomberg News has an article that begins, "A U.S. appeals court upheld rules that make it easier for companies like Google Inc. and Apple Inc. to get rid of worrisome patent litigation on the cheap."

And at "Patently-O," Dennis Crouch has a post titled "Patentee Loses First IPR Appeal on all Grounds."

You can access today's ruling of a divided three-judge panel of the U.S. Court of Appeals for the Federal Circuit at this link.
Posted at 11:30 PM by Howard Bashman



"California says will appeal ruling making foie gras legal": Reuters has this report.

And The Los Angeles Times reports that "California attorney general to appeal reversal of foie gras ban."
Posted at 11:24 PM by Howard Bashman



"4th Circ. Affirms Toss Of $600M Junk Email Suit Against Kraft": Law360.com has this report (subscription required for full access) on a ruling that the U.S. Court of Appeals for the Fourth Circuit issued today.
Posted at 11:14 PM by Howard Bashman


"Ginsburg says she would overturn campaign spending case": The Associated Press has this report.
Posted at 11:09 PM by Howard Bashman


"Applying these standards to the educational context, and considering the circumstances in totality, a reasonable jury could have found that Smith created a hostile educational environment." Today, a partially divided three-judge panel of the U.S. Court of Appeals for the Third Circuit issued its non-precedential, unpublished ruling in appeal that I discussed in the third paragraph of this post from September 2014.

In earlier coverage of the case, which is now heading toward a third trial, The Morning Call of Allentown, Pennsylvania reported that "Pleasant Valley cleared in teacher sex-talk case; Federal jury rules district did not retaliate against student who complained about teacher's methods." Paragraph three of my earlier post linked to the audio of the Third Circuit oral argument in this appeal.
Posted at 11:04 PM by Howard Bashman



"Kane challenges authority of special prosecutor in leak case": Craig R. McCoy of The Philadelphia Inquirer has this news update.

Brad Bumsted of The Pittsburgh Tribune-Review has a news update headlined "AG Kane asks Pa. Supreme Court to end grand jury case against her."

Steve Esack of The Morning Call of Allentown, Pennsylvania has a news update headlined "Kathleen Kane asks state Supreme Court to toss grand jury case against her."

Wallace McKelvey of The Patriot-News of Harrisburg, Pennsylvania reports that "Kathleen Kane's attorneys lay out case to the Supreme Court."

And The Associated Press reports that "Pennsylvania attorney general says special prosecutor appointed without authority, safeguards."

You can access at this link the brief that the Attorney General of Pennsylvania filed today in the case captioned In re: The Thirty-fifth Statewide Investigating Grand Jury, Petition of: Attorney General, Kathleen G. Kane. And you can access the other documents filed in the case via this link.
Posted at 10:35 PM by Howard Bashman



"Wolf names two for Supreme Court": Amy Worden of The Philadelphia Inquirer has this news update.

Charles Thompson of The Patriot-News of Harrisburg, Pennsylvania has a news update headlined "Gov. Tom Wolf nominates two for Pennsylvania Supreme Court vacancies."

And Peter Hall of The Morning Call of Allentown, Pennsylvania has a news update headlined "Tom Wolf nominates two for state Supreme Court."

In March 2014, StateCollege.com published an interview headlined "Lunch with Mimi: Judge Thomas Kistler." One of the questions asked and answered toward the end of the interview is "Do you have any aspirations to go to a higher-level court?"
Posted at 10:22 PM by Howard Bashman



"National Constitution Center announces major new initiative": Nicholas Quinn Rosenkranz has this post today at "The Volokh Conspiracy."
Posted at 10:12 PM by Howard Bashman


"Governor Wolf Announces Nominees For Supreme Court": The Office of the Governor of Pennsylvania issued this news release today.

In early news coverage, Paula Reed Ward of The Pittsburgh Post-Gazette has a news udpate headlined "Wolf announces Duquesne law dean Gormley as Supreme Court pick."

Adam Brandolph of The Pittsburgh Tribune-Review has a news update headlined "Duquesne law dean Gormley, Centre County judge nominated to Supreme Court."

And The Centre Daily Times reports that "Centre County President Judge Kistler nominated to Pa. Supreme Court."
Posted at 06:18 PM by Howard Bashman



"2nd Annual Dean's Lecture to the Graduating Class: A Conversation with U.S. Supreme Court Justice Ruth Bader Ginsburg, moderated by Georgetown Law Dean William M. Treanor." You can view the video of this event live, online beginning at 4 p.m. eastern time today by clicking here.
Posted at 03:55 PM by Howard Bashman


"House bill to increase state judges' retirement age advances": Wallace McKelvey of The Patriot-News of Harrisburg, Pennsylvania has this report today.
Posted at 03:14 PM by Howard Bashman


"Moore: Probate judges not required to issue same-sex marriage licenses." Brian Lyman of The Montgomery Advertiser has this report, along with an article headlined "SPLC adds to complaint against Roy Moore."

And The Associated Press has a report headlined "Alabama chief justice: Don't issue gay marriage licenses."
Posted at 02:58 PM by Howard Bashman



"Roe v. Wade resolution could be walked into Supreme Court": The American News of Aberdeen, South Dakota has an article that begins, "The Legislature's resolution asking for the Roe v. Wade abortion decision to be reconsidered and overturned might be carried by hand to the U.S. Supreme Court, the lawmaker behind it said Tuesday."
Posted at 01:38 PM by Howard Bashman


"Rapist sentenced to 112 years for crimes committed at 15 asks top Ohio court to overturn it": The Associated Press has this report.

You can view at this link the video of this morning's oral argument in the Supreme Court of Ohio. And the briefs filed in the case can be accessed here.
Posted at 01:28 PM by Howard Bashman



"Florida Supreme Court to decide whether legal definition of sex applies to gays": The Florida Times-Union has this news update.

When the video of this morning's oral argument in the Supreme Court of Florida becomes available online, I will link to it.
Posted at 01:23 PM by Howard Bashman



"Trust fund awaits Guantanamo detainee for hand-written book": Reuters has this report.
Posted at 12:58 PM by Howard Bashman


"Alabama seeks same-sex marriage delay": Lyle Denniston has this 3:23 a.m. post today at "SCOTUSblog."
Posted at 10:44 AM by Howard Bashman


"Justice Elena Kagan visits law school, discusses law school model": The Daily Northwestern has this report.

You can view at this link the video of Justice Elena Kagan's discussion yesterday at Northwestern University School of Law, participating in the Howard J. Trienens Visiting Judicial Scholar Program.
Posted at 10:40 AM by Howard Bashman



"Same sex marriage, rational basis scrutiny and In Re Estate of Kittenbrink": Senior U.S. District Judge Richard G. Kopf has this post today at his "Hercules and the Umpire" blog.
Posted at 10:33 AM by Howard Bashman


"Missing Supreme Court Litigant Resurfaces, Aims to Revive Case; Homeowner Had Secured a Slot on High Court's Docket Without Benefit of an Attorney, Then Disappeared": Brent Kendall of The Wall Street Journal has this report today. The article suggests that the pro se petitioner in the case is apparently not a regular reader of "SCOTUSblog."
Posted at 10:05 AM by Howard Bashman


"Anxiety over Supreme Court's latest dive into health care": The Associated Press has this report.
Posted at 08:25 AM by Howard Bashman


Tuesday, February 3, 2015

"BP Tells 5th Circ. Deepwater Claims Admin Has Conflict": Law360.com has this report (subscription required for full access).

You can access the audio of today's oral argument in the U.S. Court of Appeals for the Fifth Circuit -- in which Theodore B. Olson squared off against Samuel Issacharoff -- via this link (49.1 MB mp3 audio file).
Posted at 11:35 PM by Howard Bashman



"That bramble of prepositional phrases may excite the grammar teacher but it's certainly kept the federal courts busy." Circuit Judge Neil M. Gorsuch wrote the majority opinion for the en banc U.S. Court of Appeals for the Tenth Circuit today in a case involving the meaning of an aspect of 18 U.S.C. sec. 924(c).

As with all Judge Gorsuch opinions, this one is certainly worth a read.
Posted at 11:20 PM by Howard Bashman



"San Jose to ask Supreme Court to help allow A's to move": Bob Egelko of The San Francisco Chronicle has this news update.

And The San Jose Mercury News reports that "San Jose appeals A's lawsuit against MLB to U.S. Supreme Court."
Posted at 10:52 PM by Howard Bashman



"Dad not guilty of child abuse for admitting to cursing in front of son, N.J. Supreme Court rules": NJ.com has this report on a ruling that the Supreme Court of New Jersey issued yesterday.
Posted at 10:48 PM by Howard Bashman


"The Supreme Court challenge against ObamaCare is rapidly falling apart": Scott Lemieux has this essay online today at The Week.
Posted at 10:44 PM by Howard Bashman


"Republican Supreme Court hopefuls unvetted by their peers": Wallace McKelvey of The Patriot-News of Harrisburg, Pennsylvania has this report.
Posted at 10:42 PM by Howard Bashman


"Moussaoui Calls Saudi Princes Patrons of Al Qaeda": Scott Shane will have this article in Wednesday's edition of The New York Times.
Posted at 10:36 PM by Howard Bashman


"Justice Elena Kagan gives an inside look at the U.S. Supreme Court": The Chicago Tribune has this report.
Posted at 10:33 PM by Howard Bashman


"A University Recognizes a Third Gender: Neutral." Julie Scelfo will have this article in this upcoming Sunday's edition of the Education Life section of The New York Times.
Posted at 10:14 PM by Howard Bashman


"Fall in Fortunes for Pennsylvania Attorney General": Jennifer Steinhauer will have this article in Wednesday's edition of The New York Times.
Posted at 10:12 PM by Howard Bashman


"Will gay marriage be legal in Alabama? It's up to Supreme Court now." Warren Richey of The Christian Science Monitor has this report.
Posted at 09:18 PM by Howard Bashman


"Supreme Court Obamacare case poses political peril for GOP": Jennifer Haberkorn and Manu Raju of Politico.com have this report.
Posted at 09:16 PM by Howard Bashman


"The Capital Punishment Cover-Up: Virginia wants to hide 'all information relating to the execution process.'" Dahlia Lithwick has this jurisprudence essay online at Slate.
Posted at 09:12 PM by Howard Bashman


"Tsarnaev lawyers ask that jury selection be suspended": Milton J. Valencia of The Boston Globe has a news update that begins, "Lawyers for alleged Boston Marathon bomber Dzhokhar Tsarnaev asked a federal judge Tuesday to suspend jury selection in the high-profile case until a federal appeals court can hear a second petition to move the trial to another district."

And The Associated Press reports that "Tsarnaev lawyers ask appeals court to order trial moved."
Posted at 08:56 PM by Howard Bashman



"With Obamacare on the line, Supreme Court gets literal": Richard Wolf of USA Today has this report.
Posted at 08:46 PM by Howard Bashman


"A High Impact Case": Terry Eastland has this article in the February 9, 2015 issue of The Weekly Standard.
Posted at 06:00 PM by Howard Bashman


Received in the mail: In Saturday's mail, I received a complimentary copy of "The Moot Court Advisor's Handbook: A Guide for Law Students, Faculty, and Practitioners." I look forward to perusing it.
Posted at 05:53 PM by Howard Bashman


"Justices Elena Kagan and Antonin Scalia disagree about many issues. But not duck hunting." Ariane de Vogue of CNN.com has this report today.
Posted at 04:58 PM by Howard Bashman


"Freedom of speech vs. right of publicity in sports computer games": Eugene Volokh had this post yesterday at "The Volokh Conspiracy."
Posted at 01:36 PM by Howard Bashman


"Slave's attorney made Iowa history alongside his client": In yesterday's edition of The Waterloo Cedar Falls Courier, Dennis Magee had this front page article -- part two in a two-part series.

I previously linked to the article that was part one of the series in a post you can access here.
Posted at 01:33 PM by Howard Bashman



"BP urges judges to remove head of oil spill settlement fund": The Associated Press has this report on a case argued today at the U.S. Court of Appeals for the Fifth Circuit.

When the oral argument audio becomes available online, I will link to it.
Posted at 01:27 PM by Howard Bashman



"Why I am thankful for Roy Moore": Columnist J. Pepper Bryars has this essay online today at AL.com.
Posted at 01:22 PM by Howard Bashman


"No guns made Sotomayor's Utah visit all the richer": Columnist Paul Rolly had this essay online yesterday at The Salt Lake Tribune.
Posted at 01:17 PM by Howard Bashman


"A test for the Kochs' influence: seeking justice and freedom for Weldon Angelos." Douglas A. Berman has this post today at his "Sentencing Law and Policy" blog.
Posted at 01:14 PM by Howard Bashman


"Alabama asks Supreme Court to stay gay marriage ruling": The Associated Press has this report.

Brendan Kirby of The Mobile Press-Register has a news update headlined "Federal appeals court denies Alabama's bid to extend delay on same-sex marriages."

And Brian Lyman of The Montgomery Advertiser has a news update headlined "Federal court won't stay same-sex marriage ruling." Earlier, Lyman had an article headlined "Same-sex marriage would cause 'confusion,' says Ala. AG."

You can access today's order of the U.S. Court of Appeals for the Eleventh Circuit at this link.
Posted at 12:54 PM by Howard Bashman



"The Supreme Court's Secret Decisions": Law professor William Baude has this op-ed in today's edition of The New York Times.
Posted at 12:45 PM by Howard Bashman


"The Perfect Storm On The Horizon That May Kill The Supreme Court Filibuster": Sahil Kapur of TPM DC has this report today.
Posted at 09:12 AM by Howard Bashman


Monday, February 2, 2015

"Statute against lying in campaign ads faces legal test": Stephanie Ebbert has this front page article in today's edition of The Boston Globe.
Posted at 11:02 PM by Howard Bashman


"Public Health Experts Have Estimated How Many Americans Will Die If the Supreme Court Repeals Obamacare": Brian Beutler has this essay online today at The New Republic.
Posted at 10:58 PM by Howard Bashman


"Activists push Kansas legislators to outlaw certain type of abortion": Bryan Lowry of The Wichita Eagle has this news update.
Posted at 10:52 PM by Howard Bashman


"IOP-Hon. Elena Kagan": Justice Elena Kagan participated in a conversation today at the Institute of Politics of the University of Chicago. You can view the video on YouTube via this link.
Posted at 05:30 PM by Howard Bashman


"Supreme Court Justice Sotomayor addresses West Palm crowd": The South Florida Sun-Sentinel has this news update.

And The Palm Beach Post has a news update headlined "Justice Sonia Sotomayor wows capacity crowd at PBC convention center."
Posted at 05:20 PM by Howard Bashman



"Harry Potter and the Healthcare Statute of Doom: In King v. Burwell, the Supreme Court has a chance to misconstrue the text of a statute its majority despises; It shouldn't." Law professor Garrett Epps has this essay online today at The Atlantic.
Posted at 04:12 PM by Howard Bashman


"Kagan: Don't expect cameras in Supreme Court anytime soon." The Associated Press has this report.
Posted at 04:05 PM by Howard Bashman


"Iowa Supreme Court's first case freed a slave": Dennis Magee had this article in yesterday's edition of The Waterloo Cedar Falls Courier.

The article that is part two of this two-part series appears on the front page of today's newspaper, and when it becomes available online I will link to it.
Posted at 01:40 PM by Howard Bashman



"Is 'sexual intercourse' limited to genital sex?" Eugene Volokh has this post today at "The Volokh Conspiracy."
Posted at 01:36 PM by Howard Bashman


"Commil v. Cisco: Opening Briefs on Escaping Inducement Liability." Dennis Crouch has this post today at "Patently-O."
Posted at 01:35 PM by Howard Bashman


"Court Sets Up a Hurdle, Not a Barrier, for Insider Trading Cases": Law professor Peter J. Henning has this post today at the "DealBook" blog of The New York Times.
Posted at 01:28 PM by Howard Bashman


"Unprecedented 3 openings on Pa. high court spur candidates' quest for party endorsements": The Associated Press has this report.
Posted at 01:14 PM by Howard Bashman


"A Gay-Rights Argument Scalia Could Love": Law professor Cass R. Sunstein has this essay online today at Bloomberg View.
Posted at 12:00 PM by Howard Bashman


"'Soft Precedent': Unpublished Opinions in Fourth Circuit Culture." Steve Klepper has this post today at the "Maryland Appellate Blog."

And today at "PrawfsBlawg," Richard M. Re has a post titled "On Not Creating Precedent in Plumley v. Austin."
Posted at 11:57 AM by Howard Bashman



"The Amicus Briefs Supporting the Government's Position in King v. Burwell": Timothy Jost had this post yesterday at the "Balkinization" blog.
Posted at 11:14 AM by Howard Bashman


"Court Decisions That Set No Precedent": Adam Liptak will have this new installment of his "Sidebar" column in Tuesday's edition of The New York Times focusing on unpublished, non-precedential federal appellate court rulings.
Posted at 11:11 AM by Howard Bashman


"Why Judges Tilt to the Right": Adam Liptak had this news analysis in the Sunday Review section of yesterday's edition of The New York Times.
Posted at 11:07 AM by Howard Bashman


"Unto the Breach: An interview with the all too candid Dean Erwin Chemerinsky." Ronald K.L. Collins has this post today at "Concurring Opinions."
Posted at 08:34 AM by Howard Bashman


"Florida campaign case before Supreme Court may reverberate in Pennsylvania judicial race": Melissa Daniels has this front page article in today's edition of The Pittsburgh Tribune-Review.
Posted at 08:30 AM by Howard Bashman


"Supreme Court's Empty Promise of Justice": Kenneth Jost had this post yesterday at his blog, "Jost on Justice."
Posted at 08:26 AM by Howard Bashman


"Graham: Trey Gowdy for the Supreme Court." CNN.com has this report.
Posted at 08:24 AM by Howard Bashman


"Justice Sonia Sotomayor speaks today in West Palm Beach": The Palm Beach Post has this report.
Posted at 08:22 AM by Howard Bashman


"The RightsCast, Episode 1: Scott Dodson, 'The Legacy of Ruth Bader Ginsburg.'" Nancy Leong has posted this interview online at YouTube.
Posted at 08:12 AM by Howard Bashman


"Where we are in the Supreme Court term": Ariane de Vogue of CNN.com has this report.
Posted at 08:07 AM by Howard Bashman


Sunday, February 1, 2015

"What Supreme Court decision could mean for future of death penalty; State speculates on possible impact of lethal drug decision": Cary Aspinwall has this article in today's edition of The Tulsa World.
Posted at 02:13 PM by Howard Bashman


"Pa. Supreme Court: GOP endorses Covey, George and Olson." Wallace McKelvey of The Patriot-News of Harrisburg, Pennsylvania has this report.

And The Associated Press reports that "GOP endorses 3 for Pennsylvania Supreme Court."
Posted at 02:10 PM by Howard Bashman



"Florida Supreme Court to decide the definition of sexual intercourse": Jim Saunders of the News Service of Florida has this report

You can access via this link the documents filed in the case scheduled to be argued next Wednesday in the Supreme Court of Florida. And the intermediate appellate court's ruling can be accessed here.
Posted at 02:06 PM by Howard Bashman



"Group appeals mandatory union fees to Supreme Court": David G. Savage has this article in today's edition of The Los Angeles Times.
Posted at 01:52 PM by Howard Bashman


"Blue Dot for Obama Prompts Red Nebraska to Revisit Electoral College Rules": Mitch Smith has this article in today's edition of The New York Times.
Posted at 01:25 PM by Howard Bashman


"U.S. judges see 'epidemic' of prosecutorial misconduct in state": Maura Dolan has this article in today's edition of The Los Angeles Times.

On Friday, the U.S. Court of Appeals for the Ninth Circuit issued this order in the most recent case discussed in the article.
Posted at 01:05 PM by Howard Bashman







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