How Appealing

Tuesday, October 31, 2017

Programming note: On Wednesday, I will be traveling to Long Beach, California, where on Thursday through Sunday I will be attending (and, on Saturday, moderating a panel at) the 2017 Appellate Judges Education Institute Summit.

As a result, additional posts will appear here late in the day on Wednesday. As always while I am traveling, additional appellate-related retweets will appear on this blog's Twitter feed.
Posted at 11:58 PM by Howard Bashman



"Harvard At 200: Justices Look Back On Their Law School Days -- And Beyond." Nina Totenberg had this audio segment on today's broadcast of NPR's "Morning Edition."
Posted at 11:56 PM by Howard Bashman


"Religious Freedom and the Masterpiece Case": Joshua Matz has this post at the "Take Care" blog.
Posted at 11:54 PM by Howard Bashman


"Antonin Scalia's Speeches, Collected for Argument's Sake": Alan M. Dershowitz will have this review of "Scalia Speaks: Reflections on Law, Faith, and Life Well Lived" in the Sunday Book Review section of the November 5, 2017 issue of The New York Times.
Posted at 11:52 PM by Howard Bashman


"Notre Dame to end no-cost contraceptive coverage for employees": Margaret Fosmoe of The South Bend Tribune has this report.
Posted at 11:46 PM by Howard Bashman


"ABA Committee Smokes Grasz": At the National Review's "Bench Memos" blog, Ed Whelan's post appears in three parts, which you can access here, here, and here.
Posted at 11:44 PM by Howard Bashman


"Donnelly one of few Democrats to back Notre Dame professor for federal judge": Maureen Groppe of The Indianapolis Star has this report.

Alex Swoyer of The Washington Times reports that "Senate confirms Amy Coney Barrett to bench; Democrats had questioned her 'orthodox' Catholic faith."

And Jennifer Bendery of HuffPost reports that "Senate Confirms Judicial Nominee Who Questioned Roe v. Wade Decision; Even some Democrats voted for Amy Coney Barrett, who is now a judge on the U.S. Court of Appeals for the 7th Circuit."
Posted at 11:40 PM by Howard Bashman



"The Dangerous Myth of the Judicial 'Resistance'": Dahlia Lithwick and law professor Stephen I. Vladeck have this essay online at The New York Times.
Posted at 11:32 PM by Howard Bashman


Programming note: After enjoying a most wonderful dinner in Pittsburgh last night with David Garrow, today I will be participating as a panelist in a Third Circuit-sponsored event titled "Judges and Journalists: Accuracy and Access" at Pittsburgh's University Club.

Immediately following this event, I will be returning to the Philadelphia area, because tomorrow I am flying from Philadelphia to the west coast to take part in the 2017 Appellate Judges Education Institute Summit in Long Beach, California.

As a result, additional posts will not appear here until tonight. In the interim, appellate-related retweets are likely to appear on this blog's Twitter feed. In addition, during the 2017 AJEI Summit, lots of additional appellate-related retweets will be appearing on this blog's Twitter feed. If you don't already follow this blog on Twitter, now would be the perfect time to do so.
Posted at 09:10 AM by Howard Bashman



"Salt Lake Mayor Jackie Biskupski opposes Colorado baker in Supreme Court case": Dennis Romboy of The Deseret News has this report.
Posted at 08:47 AM by Howard Bashman


"Wisconsin Supreme Court candidate's 1989 arrests for abortion protests provide window into his views": Patrick Marley of The Milwaukee Journal Sentinel has this report.
Posted at 08:44 AM by Howard Bashman


"Supreme Court refuses to hear from man who wants to marry his laptop": Alex Swoyer of The Washington Times has this report.
Posted at 08:40 AM by Howard Bashman


"Supreme Court Delves Into Semantics of English in a Capital Case": Adam Liptak has this article in today's edition of The New York Times.
Posted at 08:36 AM by Howard Bashman


Monday, October 30, 2017

"Bar Association declares Omaha attorney Steve Grasz 'not qualified' for 8th Circuit Court of Appeals seat": Joseph Morton of The Omaha World-Herald has this report.

And Seung Min Kim of Politico.com reports that "ABA deems another Trump judicial nominee 'not qualified'; Grasz is the second judicial nominee from Trump to get a 'not qualified' label from the bar association."

The American Bar Association today issued this explanation for the rating.
Posted at 11:30 PM by Howard Bashman



"The Senate Is About To Confirm A Frenzy Of Conservative Judges; Four of Trump's nominees to lifetime court seats are getting votes this week; Democrats oppose all of them": Jennifer Bendery of HuffPost has this report.
Posted at 11:03 PM by Howard Bashman


Programming note: This afternoon I am traveling to Pittsburgh, where tomorrow I will be a panelist at a Third Circuit-sponsored event titled "Judges and Journalists: Accuracy and Access." As a result, additional posts will appear here tonight.

As always while I am on the road, more frequent appellate-related retweets may appear on this blog's Twitter feed.
Posted at 12:48 PM by Howard Bashman



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

Meanwhile, please join me in sending Bloomberg BNA's Kimberly Robinson best wishes for a speedy recovery. A SCOTUS Order List issuance day just isn't the same without her.
Posted at 09:38 AM by Howard Bashman



"OT2017 #4: 'Wind, Diabetes, & Voluntary Retirements.'" You can access today's new episode of the "First Mondays" podcast, featuring Ian Samuel, Dan Epps, and guest host Leah Litman, via this link.
Posted at 08:20 AM by Howard Bashman


Sunday, October 29, 2017

"Ohio Supreme Court Justice Bill O'Neill makes gubernatorial run official": Seth A. Richardson of The Cleveland Plain Dealer has this report.

Jim Provance of The Toledo Blade reports that "Sitting justice to run for Ohio governor."

And Julie Carr Smyth of The Associated Press reports that "Democratic Ohio justice Bill O'Neill launches governor run."
Posted at 10:10 PM by Howard Bashman



"Supreme Court reviews another Texas death penalty case": Chuck Lindell of The Austin American-Statesman has this report.
Posted at 10:06 PM by Howard Bashman


"A 40-Foot Cross Has Honored War Dead for 90 Years. Is It Unlawful?" Emily Baumgaertner of The New York Times has this report.
Posted at 09:56 PM by Howard Bashman


"The Original Meaning of the Alien Tort Statute": William Dodge has this post at "Just Security."
Posted at 07:46 PM by Howard Bashman


"The Trump DOJ's Puzzlingly Blase View About Abortion Timing": Michael Dorf has this post at "Dorf on Law."

And at "Jost on Justice," Kenneth Jost has a post titled "Teen Immigrant Abused by Anti-Abortion Policy."
Posted at 07:44 PM by Howard Bashman



"Thurgood Marshall movie faithful to the facts, and the man": Jessica Gresko of The Associated Press has this report.

The AP also has a report headlined "AP Was There: The rape case at the center of Marshall film."

And online at The Connecticut Post, Dan Haar reports that "Father-son team finds way from Connecticut to Hollywood."
Posted at 01:38 PM by Howard Bashman



Saturday, October 28, 2017

"The 25th Amendment, What's That? Rep. Jamie Raskin's proposal to examine the president's physical and mental aptitude." Slate has posted online this new installment of its "Amicus" podcast featuring Dahlia Lithwick.

According to its description, the installment also includes a discussion "with ProPublica's Ryan Gabrielson about his recent reporting, which revealed that the high court tends to make staggering errors of fact in opinions."
Posted at 10:00 PM by Howard Bashman



"How Twitter Killed the First Amendment": Law professor Tim Wu has this op-ed in today's edition of The New York Times.
Posted at 03:26 PM by Howard Bashman


"Legacy of Chief Justice John Marshall: Legal scholars talked about John Marshall's legacy and his influence in modern times." C-SPAN has posted this video online.
Posted at 03:15 PM by Howard Bashman


"From Internet Sensation to Silence: Why Has Texas Supreme Court Justice Don Willett Stopped Tweeting?" John Council of Texas Lawyer has this report.
Posted at 03:00 PM by Howard Bashman


"Damon Keith marks 50 years as federal judge": Oralandar Brand-Williams of The Detroit News has this report.

And Jeff Karoub of The Associated Press reports that "Judge recalls key rulings from his 50 years on federal bench."

In addition, The Detroit News has posted online numerous essays commemorating this milestone, including essays written by Sixth Circuit Judge Eric L. Clay, U.S. District Judge Wilhelmina M. Wright, U.S. Representative John Lewis, former Detroit mayor Dennis Archer, Nate Conyers, Nolan Finley, and Rachel L. McDuffie.
Posted at 01:56 PM by Howard Bashman



"Seventh Circuit Takes Up Wisconsin's 'Cocaine Mom' Law": Lorraine Bailey of Courthouse News Service has this report on an oral argument that a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit heard on Thursday. You can access the oral argument audio via this link (28.5 MB mp3 audio file).

In earlier coverage from July 2017, Andrew Chung of Reuters reported that "Supreme Court lifts block on Wisconsin 'cocaine mom' law during appeal."
Posted at 01:40 PM by Howard Bashman



"Divided U.S. court upholds gun seizure in 'parking while black' case": Jonathan Stempel of Reuters has this report.

And Lorraine Bailey of Courthouse News Service reports that "Seventh Circuit OKs Police Search in 'Parking While Black' Case."

You can access yesterday's 5-to-3 en banc ruling of the U.S. Court of Appeals for the Seventh Circuit at this link.
Posted at 01:28 PM by Howard Bashman



"Confederate emblem causes unequal treatment, attorneys argue": Emily Wagster Pettus of The Associated Press has a report that begins, "Attorneys say in written arguments to the U.S. Supreme Court that the Confederate battle emblem on the Mississippi flag is 'an official endorsement of white supremacy' and lower courts were wrong to block a lawsuit challenging the flag."
Posted at 01:06 PM by Howard Bashman


Friday, October 27, 2017

"D.C. Circuit Review -- Reviewed: 'Substantially For the Reasons Set Forth . . . .'" Aaron Nielson has this post at the "Notice & Comment" blog of the Yale Journal on Regulation.
Posted at 11:04 PM by Howard Bashman


"Why Roy Moore's Law-School Professor Nicknamed Him Fruit Salad": Charles Bethea has this post online at The New Yorker.
Posted at 10:32 PM by Howard Bashman


"With Little Dissent, Supreme Court Justices Toast Harvard; Law school's alumni, which make up a majority now on the court, trade wits at a bicentennial event": The Wall Street Journal's Jess Bravin -- formerly a writer for The Harvard Crimson -- has this report.

And Jamie D. Halper, currently of The Harvard Crimson, reports that "Six Supreme Court Justices Speak at Law School Bicentennial."
Posted at 10:22 PM by Howard Bashman



"Justice Ginsburg on Public Interest Law: Supreme Court Justice Ruth Bader Ginsburg talked about her life and legal career at an event hosted by Equal Justice Works in Arlington, Virginia." C-SPAN has posted this video online of an event from earlier today.
Posted at 09:54 PM by Howard Bashman


"Erasing AUSA John Wortmann": At his "Simple Justice" blog, Scott H. Greenfield has this post about amendments the U.S. Court of Appeals for the First Circuit made last month to an opinion issued in August 2017.

I have a feeling these changes are not something that a Ninth Circuit panel on which Circuit Judge Alex Kozinski was serving would have approved. Moreover, it is rather odd that these sort of changes were made via a so-called "Errata Sheet."
Posted at 09:04 PM by Howard Bashman



"Common sense (and the Constitution!) win in Comic Con gag order appeal": Alison Frankel's "On the Case" from Thomson Reuters News & Insight has this post.
Posted at 05:26 PM by Howard Bashman


"Carpenter and Our Third-Party Future": Ian Samuel has this post at the blog of the Harvard Law Review.
Posted at 05:22 PM by Howard Bashman


"'Comic Con' Gag Orders Vacated By Appeals Court; The organizers of the Salt Lake Comic Con couldn't discuss a trademark case on social media and were restricted from sharing court documents; The 9th Circuit rules this is unconstitutional": Eriq Gardner has this post at the "THR, Esq." blog of The Hollywood Reporter.

My earlier coverage of yesterday's Ninth Circuit ruling can be accessed here.
Posted at 01:46 PM by Howard Bashman



"Ohio Supreme Court upholds conviction for failing to disclose HIV status": Jim Provance and Jennifer Feehan have this front page article in today's edition of The Toledo Blade.

Randy Ludlow of The Columbus Dispatch reports that "You still must disclose HIV before having sex in Ohio."

And Laura A. Bischoff of The Dayton Daily News reports that "People with HIV must alert sex partners, Ohio Supreme Court rules."

You can access yesterday's ruling of the Supreme Court of Ohio at this link.
Posted at 01:42 PM by Howard Bashman



"Supreme Court weighs challenge to California's abortion disclosure law: Does it violate free speech?" David G. Savage of The Los Angeles Times has this report.
Posted at 12:27 PM by Howard Bashman


"There's no free speech right to refuse wedding cakes to gay couples": Dale Carpenter has this post at "The Volokh Conspiracy" about an amicus brief that he and Eugene Volokh have submitted in this case.
Posted at 11:38 AM by Howard Bashman


"Trump's judge nominees get a hand from McConnell": Ted Barrett of CNN.com has this report.
Posted at 11:18 AM by Howard Bashman


"Supreme Court justices let down their robes at Harvard": Ariane de Vogue of CNN.com has this report.

Michael Levenson of The Boston Globe reports that "Supreme Court justices reminisce about their Harvard days."

And Brett Milano of Harvard Law Today has a report headlined "All rise! At HLS, a conversation with six Justices of the U.S. Supreme Court."

Harvard Law School has posted on YouTube a video of the event titled "HLS in the World | A Conversation with Six Justices of the U.S. Supreme Court."
Posted at 10:05 AM by Howard Bashman



"Damon Keith, a daring force for racial justice": Columnist Bankole Thompson has this essay online at The Detroit News.
Posted at 10:00 AM by Howard Bashman


"Students Examine Harvard's Affirmative Action Case": William S. Flanagan of The Harvard Crimson has this report.
Posted at 09:58 AM by Howard Bashman


"Deconstructing Neil Gorsuch's Steak Rub: What Is The Justice Hiding?" Kevin Daley of The Daily Caller has this report.
Posted at 09:56 AM by Howard Bashman


"Another Twist in the Emoluments Litigation": Michael Ramsey has this post at "The Originalism Blog."
Posted at 09:53 AM by Howard Bashman


"Book review: Justice Scalia's living words." Ronald Collins has this post at "SCOTUSblog."
Posted at 09:51 AM by Howard Bashman


Next week -- plenty of traveling, lots of CLE credits: On Monday, I will be traveling to Pittsburgh, where on Tuesday I will be a panelist at a Third Circuit-sponsored event titled "Judges and Journalists: Accuracy and Access." As Matthew Stiegler has noted at his "CA3blog," "3 Third Circuit judges will speak at Judges and Journalists program in Pittsburgh." The cost to attend the event is free, although there is a small fee if you wish to receive Pennsylvania CLE credit for attending. In order to attend, you must RSVP via this link.

After returning home from Pittsburgh late Tuesday, on Wednesday I will be flying cross-country to Los Angeles, where midday on Thursday the 2017 Appellate Judges Education Institute Summit gets underway in Long Beach, California. I consider this to be the nation's premier annual appellate-related CLE event. Apparently one can still sign-up to attend via this link (scroll down). If attending the 2017 AJEI Summit just because I think you should isn't motivation enough, then do it for Justice Brian M. Hoffstadt of California's 2nd District Court of Appeal. He is the event's lead organizer.

If you are a "How Appealing" reader who will be attending either event and happen to see this guy (caution, Twitter profile pic ahead), please do say hello.
Posted at 09:42 AM by Howard Bashman



Thursday, October 26, 2017

"SiriusXM Wins Appeal Over Pre-1972 Sound Recordings in Florida; According to the Florida Supreme Court, the state has never recognized an exclusive right of public performance in sound recordings": Eriq Gardner has this post at the "THR, Esq." blog of The Hollywood Reporter reporting on a ruling that the Supreme Court of Florida issued today on certified question from the U.S. Court of Appeals for the Eleventh Circuit.
Posted at 10:50 PM by Howard Bashman


"Ames Moot Court Finals: Fall 1998." Harvard Law School is currently celebrating its bicentennial, and -- perhaps in connection with that celebration -- the law school's YouTube channel has been updated with more than three decades' worth of videos from Ames Moot Court Finals.

I'm sure that the videos contain many amazing jurists presiding and many about-to-be-superstars of the profession arguing. I don't have time to take an in-depth look at all of the videos, but the video of the Fall 1998 Finals features an even more youthful looking Kannon K. Shanmugam, who was obviously already well on his way to becoming an excellent appellate advocate.
Posted at 10:26 PM by Howard Bashman



"How many Harvard law school grads does it take to make a Supreme Court?" Robert Barnes of The Washington Post has this entertaining report.
Posted at 10:09 PM by Howard Bashman


Ninth Circuit grants writ of mandamus vacating federal district judge's Comic Con-related gag orders: You can access today's ruling of a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit at this link.

In earlier coverage, at the "THR, Esq." blog of The Hollywood Reporter, Eriq Gardner had a post titled "In Comic-Con Dispute, Appeals Court Wants to Hear More About Judge's Gag Order; The individuals behind Salt Lake Comic Con are challenging an 'unprecedented' restriction on talking about the trademark case on social media and sharing court documents."
Posted at 10:04 PM by Howard Bashman



"Allison Eid's nomination to powerful federal court in Denver advances despite united opposition from Democrats; The vote was 11-9 along party lines": Jesse Paul of The Denver Post has this report.
Posted at 09:33 PM by Howard Bashman


"McConnell preps judicial confirmation frenzy; The transformation of the federal judiciary has been one of the early successes of Donald Trump's presidency": Seung Min Kim and Josh Gerstein of Politico.com have this report.

And Alex Swoyer of The Washington Times reports that "McConnell picks up pace on Trump's judges, moves to confirm four next week."
Posted at 09:14 PM by Howard Bashman



"High Marks for Winning on Appeal": Marsi Buckmelter has this post at NITA's "The Legal Advocate" blog.
Posted at 06:22 PM by Howard Bashman


"Louisiana 'dirt farmer' asks Supreme Court's help": Mark Sherman of The Associated Press has this report.
Posted at 06:18 PM by Howard Bashman


"GOP accuses Democrats of double standard on women as Trump's judicial pick advances": Alex Swoyer of The Washington Times has an article that begins, "Colorado Supreme Court Justice Allison Eid cleared the Senate Judiciary Committee on a party-line vote Thursday, with Republicans accusing Democrats of opposing the women President Trump has picked for top appeals court seats."
Posted at 06:17 PM by Howard Bashman


"Supreme Court justices celebrate Harvard Law bicentennial": The Associated Press has this report.
Posted at 06:14 PM by Howard Bashman


"Will Politics Tarnish the Supreme Court's Legitimacy?" Linda Greenhouse has this essay online at The New York Times.
Posted at 06:10 PM by Howard Bashman


"Sessions slams judges for blocking Trump policies; The attorney general says he's restoring the rule of law that's been almost lost in 'dust' under Obama": Josh Gerstein of Politico.com has this report.
Posted at 06:02 PM by Howard Bashman


"Are we in a constitutional crisis (yet)?" Eric Posner has this blog post.
Posted at 01:20 PM by Howard Bashman


"Don Verrilli Is Creating a D.C. Powerhouse for a California Law Firm": Gabe Friedman of Bloomberg Law's Big Law Business has this report.
Posted at 01:12 PM by Howard Bashman


Wednesday, October 25, 2017

"Will Democrats Lose Their Last Tool to Block Trump's Worst Judicial Nominees?" Jeffrey Toobin has this post online at The New Yorker.
Posted at 10:28 PM by Howard Bashman


"Why Rely on the Fourth Amendment To Do the Work of the First?" Alex Abdo has this post at The Yale Law Journal Forum.
Posted at 09:52 PM by Howard Bashman


"Constitutional Conservatives for Defrocked Judges: Ted Cruz joins Rand Paul and Mike Lee in enthusiastically endorsing lawless jurist Roy Moore." Matt Welch has this post at Reason's "Hit & Run" blog.
Posted at 09:48 PM by Howard Bashman


"Trump administration sides with NFL in sports betting case": The Associated Press has this report.
Posted at 09:45 PM by Howard Bashman


"The Democrats' Next Supreme Court Nominee: Meet Patricia Millett, the hero of the Jane Doe abortion case and a worthy successor to Ruth Bader Ginsburg." Mark Joseph Stern has this jurisprudence essay online at Slate.
Posted at 08:20 PM by Howard Bashman


"Undocumented teen's abortion re-energizes legal debate": Richard Wolf of USA Today has this report.
Posted at 08:14 PM by Howard Bashman


"3 Third Circuit judges will speak at Judges and Journalists program in Pittsburgh": Matthew Stiegler has this post at his "CA3blog" about a program taking place in Pittsburgh next Tuesday. As Stiegler's post notes, among the presenters is "some guy named Howard Bashman."

Any "How Appealing" readers who attend the program should be sure to say hello. I will be arriving in Pittsburgh on Monday evening to grab dinner with a long-time "How Appealing" reader who also happens to be a Pulitzer prize-winning historian.
Posted at 08:12 PM by Howard Bashman



"Former U.S. appeals court Judge Richard Posner: Get rid of lawyers." Kim Janssen of The Chicago Tribune has this report.
Posted at 07:54 PM by Howard Bashman


Access online the audio from my Second Circuit oral argument today in a federal sentencing appeal: You can access the oral argument audio via this link (27.3 MB mp3 oral argument audio). I previously linked to the appellate briefs that I filed on my client's behalf in this earlier post.

After the argument, a person in the audience came up to say hello and mentioned that he decided to attend the oral argument -- and bring along his mom too(!) -- after reading on this very blog that I was arguing an appeal at the Second Circuit this morning. Of course, I was a little bit jealous because I cannot even entice my own mother to attend my appellate oral arguments. And my son, who is attending law school in Manhattan (indeed, he is at the same law school from which one of the three judges on my panel graduated) could not even attend my oral argument because his first class this morning began at 11 a.m. Lest you worry that this "How Appealing" reader wasted his valuable time this morning attending an oral argument that he could have just as easily listened to online, attending in-person did confer one benefit, which is that both he and his mom got to see and hear an oral argument occurring earlier this morning whose audio the panel agreed to seal and thus won't be made publicly available.

Before leaving the courthouse, I had hoped to say hello to an acquaintance who is now a federal district judge with chambers in the same building in which my oral argument took place, but there is no confirmation she even saw my email asking if she was available for me to say hello, which I sent to her supposedly evergreen college email account. Perhaps next time I will just call.

Lastly, although I was nowhere near the Fifth Circuit's headquarters in New Orleans, after my oral argument I grabbed a tasty lunch at a nearby Cajun restaurant. And now I'm back home, where I will await the court's ruling with interest.
Posted at 06:02 PM by Howard Bashman



Programming note: This morning, I will be arguing a sentencing appeal to a three-judge panel of the U.S. Court of Appeals for the Second Circuit. Once that has concluded, I will be heading back to the Philadelphia area, where I work and reside.

As a result, additional posts will not appear here until later today. In the interim, as is often the case while I am traveling, appellate-related retweets are likely to appear at this blog's Twitter feed.
Posted at 08:24 AM by Howard Bashman



Tuesday, October 24, 2017

"The Rank-Order Method for Appellate Subset Selection": Michael J. Hasday has this essay at the Notre Dame Law Review Online Supplement.
Posted at 10:52 PM by Howard Bashman


"Appeals court in Washington allows detained immigrant teen to seek abortion": Ann E. Marimow and Maria Sacchetti of The Washington Post have this report.

Manny Fernandez of The New York Times reports that "U.S. Must Let Undocumented Teenager Get an Abortion, Appeals Court Says."

Richard Wolf of USA Today reports that "Federal court says undocumented teen can get abortion."

Brent Kendall of The Wall Street Journal reports that "Court Rules Trump Administration Must Allow Undocumented Teen to Seek Abortion; Appeals court voted 6-3 along ideological lines in favor of the 17-year-old."

Jackie Wang of The Dallas Morning News reports that "Unauthorized teen immigrant in Texas can have an abortion, appeals court rules."

Ariane de Vogue and Emanuella Grinberg of CNN.com report that "Federal court paves way for undocumented teen to have abortion."

Renuka Rayasam and Josh Gerstein of Politico.com report that "Federal appeals court clears way for undocumented teen to get abortion; It's not clear how soon the girl could have an abortion."

And Zoe Tillman of BuzzFeed News reports that "A Federal Appeals Court Just Ruled That An Undocumented Teen Can Get An Abortion."

You can access today's 6-to-3 en banc ruling of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 09:46 PM by Howard Bashman



"Ryan Walsh, '12: Serving the Public by Emulating Influential Mentors." The University of Chicago Law School has posted online a profile that begins, "As the chief deputy solicitor general of the state of Wisconsin, Ryan Walsh, '12, has an essential role in defending the state's legislative actions and criminal prosecutions in state and federal courts of appeal, including at the US Supreme Court."
Posted at 09:20 PM by Howard Bashman


"Supreme Court Wipes Out Travel Ban Appeal": Adam Liptak of The New York Times has this report.

You can access today's order of the U.S. Supreme Court at this link.
Posted at 09:15 PM by Howard Bashman



Judge Posner has already helped a convicted pro se litigant obtain a new trial: A unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued this per curiam opinion today. Now that Judge Posner has retired from the judiciary, he will need to find new ways to help pro se litigants in their quest for justice.

And at "Above the Law," Joe Patrice has a post titled "Circuit Agrees With Judge Posner On Treating Pro Se Litigants Better . . . By Benchslapping Judge Posner; Famed judge earns benchslap just in time for retirement."
Posted at 09:10 PM by Howard Bashman



Programming note: In connection with my oral argument tomorrow morning before a three-judge panel of the U.S. Court of Appeals for the Second Circuit (additional details, including the appellate briefs I filed on my client's behalf, can be accessed here), I will be commuting to New York City this afternoon. As a result, additional posts will not appear here until tonight. In the interim, as always while I am traveling, additional appellate-related retweets are likely to appear on this blog's Twitter feed.
Posted at 01:03 PM by Howard Bashman


There's still time to sign-up to attend the Appellate Judges Education Institute Summit in Long Beach, Calif. from Nov. 2-5, 2017: If you are an appellate lawyer based in southern California or anywhere in the western United States, and you simply haven't been able to decide whether to attend this year's AJEI Summit in Long Beach, I am pleased to inform you that there is still time to sign-up to attend. Online registration can be accessed via this link (scroll down).

I attended my first AJEI Summit in Dallas in November 2014. Then in November 2015, I attended the AJEI Summit in Washington, DC. Last year, the AJEI Summit decided to do me a favor and take place just down the road from me in Philadelphia, Pa., to standing-room-only crowds of attendees. And now, to make up for it, the 2017 AJEI Summit is taking place in Long Beach, Calif., a continent away, but I am still attending and will be serving as the moderator of a session titled "Courts in the Age of 'New Media'" with three wonderful panelists. You can access the complete program for this four-day event at this link.

I have worked as an appellate attorney in private practice for more than 25 years now, and it took me over 20 years to discover what wonderful appellate-related CLE programming the AJEI Summit delivers each and every year. Indeed, beginning in 2016 and continuing this year, I signed-on to be a part of the AJEI Summit's Education committee, tasked with planning and delivering the best possible appellate-related CLE programming at each year's event.

When I was attending the November 2015 AJEI Summit in Washington, DC, an attendee I had never met before came up to say hello. He told me he learned of the event via my blog, and that even though he was an in-house attorney focusing mostly on real estate law, he found the programming to be so interesting and worthwhile. Last November, I saw him again in Philadelphia. Whether he will travel cross-country for the 2017 Summit in Long Beach remains to be seen, but I certainly will be, and I hope you too can attend and will learn for yourself what a worthwhile and wonderful event the annual AJEI Summit happens to be.
Posted at 11:20 AM by Howard Bashman



"Judging A Book: Pryor Reviews 'Scalia Speaks.'" Eleventh Circuit Judge William H. Pryor, Jr. has this book review at Law360.com.
Posted at 11:02 AM by Howard Bashman


"The National-Security-Law Expert Who Blocked Trump's Travel Ban: The former federal prosecutor and deputy counsel to the Department of Homeland Security writes that the prohibition violates the Constitution." Law professor Garrett Epps has this essay online at The Atlantic.
Posted at 07:54 AM by Howard Bashman


"First major abortion battle of Trump era could be headed for Supreme Court": Joan Biskupic of CNN.com has this news analysis.
Posted at 07:50 AM by Howard Bashman


Monday, October 23, 2017

"Supreme Court to decide when state voter purges cross the line": Tony Pugh of McClatchy DC has this report.
Posted at 10:22 PM by Howard Bashman


"State Asks U.S. Supreme Court To Take Case Involving Abusive Language": Edmund H. Mahony of The Hartford Courant has an article that begins, "In a case that implicates free speech, fighting words and the coarsening of public discourse, state prosecutors are asking the U.S. Supreme Court to reinstate a 25-day jail term on a Rockville woman convicted of upsetting public order by flinging disgustingly vile insults at a grocery store manager."
Posted at 10:20 PM by Howard Bashman


"Justin Trudeau should name an Indigenous justice to the Supreme Court": The Toronto Star has posted this editorial online.
Posted at 10:18 PM by Howard Bashman


"After Supreme Court detour, Apple v. Samsung goes to a fourth jury trial; Apple wields design as a weapon, a strategy that has led to judicial paralysis": Joe Mullin of Ars Technica has this report.
Posted at 10:10 PM by Howard Bashman


"Is Oral Argument Dying in the Circuits?" Tessa L. Dysart has this post at the "Appellate Advocacy Blog."
Posted at 09:40 PM by Howard Bashman


"Dismissal of $472 million verdict v. J&J is disaster for talc plaintiffs": Alison Frankel's "On the Case" from Thomson Reuters News & Insight has this post.
Posted at 09:32 PM by Howard Bashman


In the November 2017 issue of ABA Journal magazine: Mark Walsh has an article headlined "Speech, religion and bias all weighed in Masterpiece Cakeshop case."

And Lorelei Laird has an article headlined "Native Hawaiians wage an ongoing battle to organize into a sovereign nation."
Posted at 09:10 PM by Howard Bashman



"DOJ says it's settled 'contraception mandate' cases; Trump's move to broaden exemption paved way for resolution": Tom Howell Jr. of The Washington Times has this report.

And Ema O'Connor and Zoe Tillman of BuzzFeed News report that "The Trump Administration Just Settled More Than A Dozen Lawsuits Over Obama's Contraception Mandate."
Posted at 08:53 PM by Howard Bashman



"A Vision of Our Post-Roe Future: The government's ban on abortions for undocumented minors is a preview of an America with one more conservative Supreme Court justice." Mark Joseph Stern has this jurisprudence essay online at Slate.
Posted at 08:45 PM by Howard Bashman


"Supreme Court Notebook: Justices' security focus of lawsuit." Jessica Gresko and Mark Sherman of The Associated Press have this report.
Posted at 07:48 PM by Howard Bashman


"A Gay Couple Just Asked The Supreme Court To Rule Against A Christian Baker": Dominic Holden of BuzzFeed News has this report.

You can view here and here the Briefs for Respondents filed today in the U.S. Supreme Court.
Posted at 07:35 PM by Howard Bashman



Second Circuit holds that a notice of appeal can sometimes substitute for a petition for permission to appeal under 28 U.S.C. sec. 1292(b): You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 01:58 PM by Howard Bashman


Ninth Circuit decides whether the "right of taking fish" includes whales and seals under the Treaty of Olympia: Today's ruling answers "yes," even while recognizing that now "scientists tell us sea mammals are not fish."
Posted at 01:54 PM by Howard Bashman


Ninth Circuit rejects First Amendment challenge to Montana's limits on the amount of money individuals, political action committees, and political parties may contribute to candidates for state elective office: You can access today's ruling of a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, reversing a district court's ruling to the contrary, at this link.

Update: At his "Election Law Blog," Rick Hasen discusses the ruling in a post titled "In Major Victory in Case with National Significance, Ninth Circuit on 2-1 Vote Upholds Montana Contribution Limits; Judge Bea Would Appear to Hold *All* Limits Unconstitutional."
Posted at 01:45 PM by Howard Bashman



Specific personal jurisdiction and the purposeful availment test in the Ninth Circuit: A divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued this ruling today.
Posted at 01:35 PM by Howard Bashman


"A Conversation with Justice Elena Kagan, Oct. 16, 2017, Chicago-Kent College of Law": The Chicago-Kent College of Law at Illinois Institute of Technology has posted the video of this recent event on YouTube at this link.
Posted at 01:16 PM by Howard Bashman


"Supreme court to hear challenge to Northern Ireland abortion law; Amnesty International among organisations and individuals bringing case on human rights grounds": Henry McDonald of The Guardian (UK) has this report.
Posted at 01:08 PM by Howard Bashman


"The Single Most Unremarked Win of the Trump Era: Kristen Clarke of the National Lawyers' Committee for Civil Rights Under Law on the federal judiciary." Slate recently posted online this new installment of its "Amicus" podcast featuring Dahlia Lithwick.
Posted at 01:02 PM by Howard Bashman


"Tuesday hearing may hold clues to whether Supreme Court thinks school-funding case closed": Neal Morton of The Seattle Times has this report.
Posted at 01:00 PM by Howard Bashman


"'Front Row Kids' and values have taken over our courts:The problem is not just that Back Row America's values won't be considered -- it's that the Supreme Court may not even realize it's ignoring them." Law professor Glenn Harlan Reynolds has this essay online at USA Today.
Posted at 12:53 PM by Howard Bashman


"Robert Bork's Second Amendment": Mark Pulliam has this post at the blog of the Library of Law and Liberty.
Posted at 11:22 AM by Howard Bashman


"The Travel Ban and the Rational Basis Test": Josh Blackman has this post at the "Lawfare" blog.
Posted at 11:20 AM by Howard Bashman


"He Didn't Vote in a Few Elections. In the Next One, Ohio Said He Couldn't." Adam Liptak will have this new installment of his "Sidebar" column in Tuesday's edition of The New York Times.
Posted at 11:11 AM by Howard Bashman


"Detained immigrant teen asks full appeals court to let her get abortion": Samantha Schmidt of The Washington Post has this report.

David Lauter of The Los Angeles Times reports that "Immigrant abortion case heads back to court."

Greg Toppo of USA Today reports that "ACLU asks federal court to reconsider block on undocumented teen's abortion."

Rebecca Savransky of The Hill reports that "Undocumented teen asks full appeals court to step in, allow abortion."

And at the "Daily Intelligencer" blog of New York Magazine, Cristian Farias has a post titled "The Case of the Undocumented Teen Who Wants an Abortion Is a Constitutional Hellhole for Trump."

You can access at this link the emergency petition for rehearing en banc filed last night in the U.S. Court of Appeals for the D.C. Circuit. The federal government's answer was due minutes ago, and I will link to it once it becomes available online.

Update: The federal government's answer in opposition to the petition for rehearing en banc can be accessed here.
Posted at 11:08 AM by Howard Bashman



Sunday, October 22, 2017

"Why Tillman's Experts Show He is Wrong": Michael Stern has this post at his blog, "Point of Order."
Posted at 09:42 PM by Howard Bashman


"A Dearth of Female Attorneys at Supreme Court Oral Arguments": Adam Feldman has this post at his "Empirical SCOTUS" blog.
Posted at 09:33 PM by Howard Bashman


"Trump's Lawyer a Poor Fit for Federal Bench": Kenneth Jost has this post at his blog, "Jost on Justice."
Posted at 09:28 PM by Howard Bashman


"Does Chief Justice Roberts fear gobbledygook? Or is that just baloney?" Robert Barnes of The Washington Post has this report.
Posted at 07:16 PM by Howard Bashman


"Welty Gala: Toobin touches on Supreme Court, Trump tweets and journalism." Isabelle Altman has this front page article in today's edition of The Commercial Dispatch of Columbus, Mississippi.
Posted at 01:08 PM by Howard Bashman


"When Can Private Entities Censor Speech? Trump's pressure on the NFL to censor its players is a First Amendment issue." Law professor Garrett Epps has this essay online at The Atlantic.
Posted at 01:02 PM by Howard Bashman


Saturday, October 21, 2017

"Undocumented 17-Year-Old Must Delay Abortion, Court Rules": Christina Caron of The New York Times has this report.

And today's edition of The New York Times contains an editorial titled "Abortion Ideologues Subvert a Woman's Rights."
Posted at 11:12 PM by Howard Bashman



"The Arpaio Decision: When the World Is Extraordinary But the Law is Ordinary." Joshua Geltzer has this post at "Just Security."
Posted at 11:03 PM by Howard Bashman


"Originalism": Law professor Cass R. Sunstein has posted this paper on SSRN (via "Legal Theory Blog").
Posted at 10:58 PM by Howard Bashman


"The Government's Error Can Destroy Your Business: And, thanks to an appeals court ruling, you have little recourse." Law professor Stephen L. Carter has this essay online at Bloomberg View.
Posted at 05:36 PM by Howard Bashman


"How Long Can The Courts Keep Donald Trump's Muslim Ban At Bay?" Sarah Aziza has this post at The Intercept.
Posted at 05:26 PM by Howard Bashman


"D.C. Circuit Review -- Reviewed: Broadcasts." Aaron Nielson has this post at the "Notice & Comment" blog of the Yale Journal on Regulation.
Posted at 05:22 PM by Howard Bashman


"Sandy Hook Gun Case To Be Heard By Reconfigured Supreme Court": Dave Altimari of The Hartford Courant has an article that begins, "The high-profile legal appeal by families of Sandy Hook Elementary School shooting victims who sued the manufacturer of the gun used in the 2012 massacre will be heard by a state Supreme Court panel that will include only three sitting full-time justices."
Posted at 05:18 PM by Howard Bashman


"Gorsuch: Civility doesn't mean suppressing disagreement." The Associated Press has this report.
Posted at 05:12 PM by Howard Bashman


Friday, October 20, 2017

"Same Rules Apply: How a favorite conservative weapon during the Obama era should be used to block Trump's contraception mandate rewrite." Brianne Gorod has this jurisprudence essay online at Slate.
Posted at 10:33 PM by Howard Bashman


"Hogan calls Peace Cross ruling 'outrageous,' vows to fight": John Fritze of The Baltimore Sun has this report.
Posted at 10:30 PM by Howard Bashman


"Appeals court delays abortion for undocumented teen; gives government time to find her a sponsor": Maria Sacchetti and Ann E. Marimow of The Washington Post have this report.

Alex Swoyer of The Washington Times reports that "Appeals court gives feds 11 days to find sponsor for illegal minor seeking abortion."

Brent Kendall and Laura Meckler of The Wall Street Journal report that "Trump Administration Can Block Teenage Illegal Immigrant's Abortion Till Oct. 31; Appeals court rules HHS should find a private sponsor for the girl so she can obtain the procedure."

Richard Wolf of USA Today reports that "Court blocks undocumented teen's abortion -- for now."

Joseph Tanfani of The Los Angeles Times reports that "Appeals court delays abortion for immigrant held in federal detention."

Chuck Lindell of The Austin American-Statesman reports that "Appeals court ruling delays abortion for immigrant teen in Texas."

Jackie Wang of The Dallas Morning News reports that "Court rules a sponsor can take an unauthorized migrant teen in Texas to have an abortion."

Lawrence Hurley and Ian Simpson of Reuters report that "U.S. court blocks immigrant teen's bid to obtain abortion."

Jessica Gresko of The Associated Press reports that "DC court blocks for now immigrant teen's access to abortion."

Eric Levenson and Tal Kopan of CNN.com report that "Court delays abortion for undocumented teen in detention."

Renuka Rayasam and Josh Gerstein of Politico.com report that "Appeals court looks for compromise on abortion for undocumented minor; Ruling gives feds until Oct. 31 to find sponsor who can take teen out of custody."

Ema O'Connor of BuzzFeed News reports that "Court Orders More Delays For Undocumented Teenager Seeking An Abortion; A court ruling Friday will postpone the pregnant 17-year-old's request that the Trump administration allow her to get an abortion."

And Giulia Afiune and Claire Allbright of The Texas Tribune report that "Federal appeals court blocks undocumented teen's request for immediate abortion."

You can access today's order of a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit at this link and a dissenting opinion at this link.
Posted at 10:26 PM by Howard Bashman



"Prominent chefs oppose baker in major gay rights case": Mark Sherman of The Associated Press has this report.
Posted at 01:35 PM by Howard Bashman


"Immigrant's abortion case fosters lively court debate, no ruling yet": Chuck Lindell of The Austin American-Statesman has this report.

Giulia Afiune of The Texas Tribune reports that "Federal appeals court hears case of undocumented teen seeking abortion in Texas."

In commentary, The Los Angeles Times has an editorial titled "The U.S. government can't hold undocumented pregnant teens hostage when they want an abortion."

And online at The New York Times, columnist Michelle Goldberg has an essay titled "The Trump Administration's Power Over a Pregnant Girl."
Posted at 01:18 PM by Howard Bashman



"Judge denies Arpaio's motion to erase his criminal contempt conviction": Megan Cassidy of The Arizona Republic has this report.

Howard Fischer of The Arizona Daily Star reports that "Former Arizona Sheriff Joe Arpaio loses bid to have his criminal record wiped clean."

And Chris Geidner of BuzzFeed News reports that "Judge Refuses To Toss Out Joe Arpaio's Guilty Contempt Verdict After Trump's Pardon."
Posted at 11:18 AM by Howard Bashman



Access the live audio stream of this morning's D.C. Circuit oral argument in Garza v. Hargan: Via this link (Adobe flash required). Thanks to Fix the Court for making the request that resulted in this live audio feed.

In news coverage, Brent Kendall and Laura Meckler of The Wall Street Journal report that "Appeals Court to Review Case of Undocumented Teenager Seeking Abortion; Judge ordered Department of Health and Human Services to allow her to leave shelter to obtain procedure."
Posted at 09:52 AM by Howard Bashman



Thursday, October 19, 2017

"Judge won't wipe out guilty verdict for Arpaio; Trump pardon ends criminal case but won't 'revise historical facts,' court says": Josh Gerstein of Politico.com has this report.
Posted at 09:57 PM by Howard Bashman


"Journalism's Broken Business Model Won't Be Solved by Billionaires": William D. Cohan has this important post online at The New Yorker.
Posted at 09:44 PM by Howard Bashman


"Are the Emoluments Lawsuits Filed Against President Trump Dead?" Sheelah Kolhatkar has this post online at The New Yorker.
Posted at 09:37 PM by Howard Bashman


"Has the Supreme Court Legalized Public Corruption? By making it harder to punish official misconduct, the justices risk damage to America's republican institutions." Matt Ford has this report online at The Atlantic.
Posted at 09:22 PM by Howard Bashman


"Originalism and Textualism in Action: Not Constraining and Not Neutral." Joseph Kimble has this post at "Dorf on Law."
Posted at 08:47 PM by Howard Bashman


"Amy Wax on Dissent and Disagreement at Penn Law": Federalist Society Penn Law has posted this video on YouTube.
Posted at 08:40 PM by Howard Bashman


"My Student Guide to Judicial Clerkships": Josh Douglas has this post at "PrawfsBlawg."
Posted at 08:32 PM by Howard Bashman


"Guns, Constitutional Tests, and Games": Michael Dorf has this post at "Dorf on Law."
Posted at 08:27 PM by Howard Bashman


"Morrissey v. U.S. and the IRS's Hostility to Reproductive Choice": Tessa Davis has this post at "PrawfsBlawg."
Posted at 08:25 PM by Howard Bashman


"What to Do about SCOTUS Mistakes: A Not-So Modest Proposal." Eric Segall has this post at "Dorf on Law."
Posted at 08:12 PM by Howard Bashman


"The Perils of Statutory Interpretation": Tessa L. Dysart has this interesting post at the "Appellate Advocacy Blog."
Posted at 08:07 PM by Howard Bashman


"Will Trump DOJ side with disabled plaintiffs in ADA website suits?" Alison Frankel's "On the Case" from Thomson Reuters News & Insight has this post.
Posted at 07:38 PM by Howard Bashman


"Appeals court to review judge's order allowing abortion for undocumented immigrant": Maria Sacchetti and Ann E. Marimow of The Washington Post have this report.

Alex Swoyer of The Washington Times reports that "Judges halt ruling allowing illegal immigrant girl to get abortion."

Josh Gerstein of Politico.com reports that "Appeals court temporarily halts order allowing abortion for teen immigration detainee; Acting with unusual haste, D.C. Circuit panel sets oral arguments for Friday."

And in commentary, online at Slate, Perry Grossman and Mark Joseph Stern have a jurisprudence essay titled "Trump's Dred Scott: In a case about the abortion rights of undocumented minors, the Department of Justice evokes the worst Supreme Court decision of all time."
Posted at 07:28 PM by Howard Bashman



"There's No Good Decision in the Next Big Data Privacy Case": Law professor Jennifer Daskal has this essay online at The New York Times.
Posted at 04:53 PM by Howard Bashman


"The Posner Effect (With Help from Kirkland & Ellis)": Jenna Greene of The Am Law Litigation Daily has this report (subscription required for full access) discussing an opinion that Circuit Judge Frank H. Easterbrook issued Tuesday on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit.
Posted at 04:50 PM by Howard Bashman


"Retired Judge Posner Seeks to Help Pro Se Litigant": Melissa Heelan Stanzione of Bloomberg BNA has this report.
Posted at 04:42 PM by Howard Bashman


"A Case To Watch: Garza v. Hargan." At the "Take Care" blog, Leah Litman has a post that begins, "Tomorrow, the D.C. Circuit will apparently hear oral argument on the government's emergency motion to prevent an undocumented young woman from obtaining an abortion before it becomes too late for her to do so."
Posted at 04:35 PM by Howard Bashman


"The Judge's Code: Meet the judge who codes -- and decides tech's biggest cases." Sarah Jeong of The Verge has an article that begins, "On May 18th, 2012, attorneys for Oracle and Google were battling over nine lines of code in a hearing before Judge William H. Alsup of the northern district of California."
Posted at 04:33 PM by Howard Bashman


"Cert Grants Not Always Good for Business, May Spur Settlements": Kimberly S. Robinson of Bloomberg BNA has this report.
Posted at 03:44 PM by Howard Bashman


"The night Justices Scalia, Ginsburg and Kennedy sang karaoke with Renee Fleming": Kim Janssen of The Chicago Tribune has this report.
Posted at 03:36 PM by Howard Bashman


"Trump cries foul on judges, but he's ahead of Obama": Jessica Gresko of The Associated Press has this report.
Posted at 03:26 PM by Howard Bashman


Appearing soon at the U.S. Court of Appeals for the Second Circuit: On Wednesday, October 25, 2017, I will be arguing a sentencing appeal on behalf of the defendant-appellant before a three-judge Second Circuit panel in the case captioned United States v. Mullings, No. 16-1694 (2d Cir.). You can access online my client's Brief for Appellant and Reply Brief for Appellant.

I am so very pleased that this appeal will be receiving oral argument next Wednesday, especially because until 11:05 a.m. eastern time today, the case had been listed for submission on the briefs without oral argument. The oral argument statement that I filed on my client's behalf on May 3, 2017 requested oral argument of the appeal. Thereafter, however, on August 25, 2017, the Second Circuit issued a docket entry stating that the case would be submitted on the briefs without oral argument. Next, on September 7, 2017, the Second Circuit issued a formal notice to the parties that the case would be accepted on submission without oral argument.

Soon after receiving the submit notice on September 7th, I picked-up the phone and called the Second Circuit's Clerk's Office to inquire whether there was any chance that the Second Circuit might change its mind and decide to request argument of the appeal, given that so much time still remained before the case's submission date of October 25, 2017. Not surprisingly, the answer I received was that I should not expect any change in the case's status from "submitted on the briefs" to "scheduled for oral argument" to occur.

Yet today at 11:05 a.m., I received an email from the Second Circuit's CM/ECF system containing the text "REVISED CASE CALENDARING, for argument on 10/25/2017, A Panel, SET." Moments later, the Second Circuit's Clerk's Office was calling me to make sure I had received that notice. And the Second Circuit's current online calendar for next Wednesday reflects that the case is now scheduled for 10 minutes of oral argument per side, which represents a standard oral argument session. As luck would have it, my schedule for next Tuesday afternoon and all of next Wednesday remains wide open for an an oral argument-related trip to New York City. I was even able to secure a hotel room that's only a six minute walk from the Thurgood Marshall U.S. Courthouse at 40 Foley Square in Manhattan.

I don't know if there's a generally applicable moral to this story, but this constitutes a data point demonstrating that at least sometimes the Second Circuit decides to first notify counsel of the oral argument of an appeal less than a week before the assigned argument/submission date after previously having categorized the appeal as a submit. And, with respect to my client's appeal, this is very welcome news.
Posted at 03:14 PM by Howard Bashman



"Scalia Sweats: How the former justice became a great writer." Terry Eastland has this post online at The Weekly Standard.
Posted at 01:56 PM by Howard Bashman


"U.S. appeals court rejects hedge fund founder's FBI misconduct case": Brendan Pierson of Reuters has this report.

And Alison Frankel's "On the Case" from Thomson Reuters News & Insight has a post titled "All the money in the world can't buy redress from FBI, prosecutors."

You can access Tuesday's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 01:50 PM by Howard Bashman



"An Analysis of DOJ's Brief in Masterpiece Cakeshop": Robert Post has this entry at the "Take Care" blog.
Posted at 01:28 PM by Howard Bashman


"A Changing Of The Guard At Above The Law: Change is necessary and good -- for institutions, individuals, and Above the Law." David Lat had this post yesterday at "Above the Law."
Posted at 01:25 PM by Howard Bashman


"Who's to Blame for America's Sexual Harassment Nightmare? The Supreme Court, for one." Mark Joseph Stern has this jurisprudence essay online at Slate.
Posted at 11:09 AM by Howard Bashman


"Appeals court rules that Peace Cross in Bladensburg violates the Constitution": John Fritze of The Baltimore Sun has this report.

In today's edition of The Washington Post, Ann E. Marimow has an article headlined "Towering cross-shaped monument on public land is unconstitutional, court rules."

And Bradford Richardson of The Washington Times reports that "Peace Cross of Bladensburg ruled unconstitutional by appeals court."

You can access yesterday's ruling of a partially divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit at this link.
Posted at 11:06 AM by Howard Bashman



Wednesday, October 18, 2017

"Passing the California bar exam shouldn't be made easier, court says": Maura Dolan of The Los Angeles Times has an article that begins, "The California Supreme Court decided Wednesday not to lower the passing score on the state's licensing examination for lawyers."
Posted at 11:58 PM by Howard Bashman


U.S. Court of Appeals for the Third Circuit displays sophisticated grasp of redaction techniques: You can access a decision containing redactions that the Third Circuit issued today at this link.
Posted at 11:40 PM by Howard Bashman


"U.S. appeals court rejects Cosby accuser's bid to revive defamation suit": Nate Raymond of Reuters has this report on a ruling that the U.S. Court of Appeals for the First Circuit issued today.
Posted at 11:35 PM by Howard Bashman


"Twitter silence from Texas Tweeter Laureate": Columnist Ken Herman recently had this essay online at The Austin American-Statesman.
Posted at 11:32 PM by Howard Bashman


"Missouri appeals court tosses out $72 million Johnson & Johnson talcum powder verdict": Joel Currier has this front page article in today's edition of The St. Louis Post-Dispatch.

Lisa Gutierrez of The Kansas City Star reports that "Missouri appeals court throws out $72 million award in Johnson & Johnson talcum powder case."

Margaret Cronin Fisk of Bloomberg News reports that "J&J Wins Reversal of First St. Louis Talc-Cancer Verdict."

And Nate Raymond of Reuters reports that "Johnson & Johnson wins reversal of $72 million verdict over talc cancer risks."

You can access yesterday's ruling of the Court of Appeals of Missouri, Eastern District, at this link.
Posted at 10:50 PM by Howard Bashman



"Why Are Prosecutors Putting Innocent Witnesses in Jail? Across the country, people who committed no crimes are being locked up to compel their testimony in court." Sarah Stillman has this essay online at The New Yorker.
Posted at 10:37 PM by Howard Bashman


"The Supreme Court Justices Need Fact-Checkers": Law professor John Pfaff has this essay online at The New York Times.
Posted at 10:14 PM by Howard Bashman


"Judges vs. Bureaucrats: Who should defer to whom?" Slate has posted online this jurisprudence essay, consisting of a conversation between former Seventh Circuit Judge Richard A. Posner and Senior U.S. District Judge Jed S. Rakoff (S.D.N.Y.), moderated by Joel Cohen.
Posted at 10:07 PM by Howard Bashman


"Feud: Elena and Neil; Why rumors of a Gorsuch-Kagan clash at the Supreme Court are such a bombshell." Mark Joseph Stern has this jurisprudence essay online at Slate.
Posted at 10:00 PM by Howard Bashman


"Is Trump Violating the Constitution? In Absentia, He Defends Himself in Court." Matt Flegenheimer of The New York Times has this report.
Posted at 09:54 PM by Howard Bashman


"In North Carolina, Republicans Stung by Court Rulings Aim to Change the Judges": Trip Gabriel of The New York Times has this report.
Posted at 09:45 PM by Howard Bashman


"Guantanamo guards seize confidential Sept. 11 terror trial defense files": Carol Rosenberg of The Miami Herald has this report.
Posted at 09:05 PM by Howard Bashman


"The Unexploded Landmine Buried Deep In The Codes of Conduct Committee's Otherwise Excellent Opinion On Posner": Senior U.S. District Judge Richard G. Kopf (D. Neb.) has this post at the "Simple Justice" blog.
Posted at 08:51 PM by Howard Bashman


"Justice Gorsuch is Right: Jesner and the Original Meaning of the Alien Tort Statute." Anthony J. Bellia and Bradford R. Clark have this post today at the "Lawfare" blog.
Posted at 08:47 PM by Howard Bashman


Proving that law blogging is as cool now as it ever was: The Harvard Law Review now has a blog, conveniently titled "Harvard Law Review Blog."
Posted at 08:45 PM by Howard Bashman


"Squat, lift, kick, curl: Justice Ginsburg's workout is tough and it left me exhausted." Richard Wolf of USA Today has this report.
Posted at 08:42 PM by Howard Bashman


"D.C. Circuit nominee says he worked on White House response to Mueller probe; Katsas also acknowledged he gave advice on travel ban, DACA, voter fraud commission": Josh Gerstein of Politico.com has this report.
Posted at 08:40 PM by Howard Bashman


File under "If Only": As two earlier recent posts have revealed, Law360.com has recently launched a series titled "Judging a Book" in which judges review books.

I don't know about you, but I am patiently awaiting Seventh Circuit Chief Judge Diane P. Wood's review of former Seventh Circuit Judge Richard A. Posner's new self-published book.
Posted at 11:35 AM by Howard Bashman



"Lights, camera, SCOTUS": Lydia Wheeler of The Hill has written this profile of Gabe Roth, the executive director of Fix the Court.
Posted at 11:28 AM by Howard Bashman


"Judging A Book: Kozinski Reviews 'The Judge.'" At Law360.com, Ninth Circuit Judge Alex Kozinski has this review (subscription may be required for full access) of the new book "The Judge: 26 Machiavellian Lessons," by Ronald K.L. Collins and David M. Skover.
Posted at 09:15 AM by Howard Bashman


"Supreme Court Justice Before and After": Yesterday evening, while I was in the Bronx with my son watching the New York Yankees accomplish an improbable and stirring comeback to even the best-of-seven American League Championship Series against the Houston Astros at two games each, the Double Jeopardy! segment of the acclaimed television quiz show Jeopardy! included (evoking applause or consternation, depending on whom you ask) questions in the category that appears as the title to this post.

A legion of loyal "How Appealing" readers (or at least one of them) was kind enough to draw the category and the answers and questions appearing in it to my attention via email. Because the appellate community rejoices when the U.S. Supreme Court appears in Jeopardy! clues, lets take a look at the answers that appeared on the board yesterday evening in this category. The answers were (with dollar values shown):

Supreme Court Justice Before and After

($400) First Chief Justice ever who, despite "99 Problems," was always "Big Pimpin'";

($800) He replaced Thurgood Marshall and chugged his way around the island of Sodor;

($1200) This Heisman runner-up jurist, now "The Home of the Original Slider";

($1600) HBO's "Last Week Tonight" host who went on to become "The Great Dissenter"; and

($2000) Current justice who's been known to launch a rocket or 2.

And the corresponding questions that the contestants had to supply to earn that money were . . . wait for it:
($400) John Jay-Z;

($800) Clarence Thomas the Tank Engine;

($1200) Byron White Castle;

($1600) John Oliver Wendell Holmes; and

($2000) Anthony Kennedy Space Center.

Now readers may recall that once upon a time I tried out for Who Wants to Be a Millionaire and even aced the test, or more accurately did well enough on the test that I entered the pool of possible contestants for the season in question and might have appeared on the program had I possessed an actual TV quiz show-worthy personality.

Although I never have tried out to be a Jeopardy! contestant, I do enjoy playing along at home (which is where I wasn't last night, thanks to a certain quite memorable baseball game in the Bronx). I don't know about you, but the "Before and After" category on Jeopardy! is one that I always find quite challenging. Indeed, in this very category, the contestants on yesterday's show supplied the correct question in response to only three of the five clues. Nevertheless, it's nice to see that Jeopardy has found a way to combine SCOTUS and pop-culture/general knowledge in this confounding category.
Posted at 08:57 AM by Howard Bashman



Tuesday, October 17, 2017

Programming note: Later this afternoon, I will be attending a Major League Baseball playoff game in the Bronx with a family member who is now attending law school in New York City. As a result, additional posts are unlikely to appear here until Wednesday morning.
Posted at 11:20 AM by Howard Bashman


"Trump's judge picks: 'Not qualified,' prolific bloggers; But Republican senators still get on board." Seung Min Kim of Politico.com has this report.
Posted at 11:03 AM by Howard Bashman


"Justice Elena Kagan talks about life on the Supreme Court during Chicago appearance": Steve Schmadeke of The Chicago Tribune has this report.
Posted at 11:00 AM by Howard Bashman


"Judges turn to extreme remedy to block Trump administration": Ariane de Vogue of CNN.com has this report.
Posted at 10:55 AM by Howard Bashman


"Justice Sotomayor motivates law students to embrace difference": Michael Ortiz and Jill Leavey of The Hofstra Chronicle have this report.
Posted at 10:53 AM by Howard Bashman


"Trump and McConnell See a Way to Make Conservatives Happy": Carl Hulse has this new installment of his "On Washington" column online at The New York Times.

The installment begins, "Stymied legislatively, President Trump and Senator Mitch McConnell are turning their attention to one way they can skirt Democratic roadblocks and mollify unhappy Republicans -- by filling scores of federal court vacancies."
Posted at 10:50 AM by Howard Bashman



"It's a Fact: Supreme Court Errors Aren't Hard to Find; A ProPublica review adds fuel to a longstanding worry about the nation's highest court: The justices can botch the truth, sometimes in cases of great import." Ryan Gabrielson of ProPublica has this report.
Posted at 10:45 AM by Howard Bashman


"A Tragedy of Errors: The corkscrew case of Rogers Lacaze." Andrew Cohen has this essay online at The Marshall Project.
Posted at 10:18 AM by Howard Bashman


"To Become a Better Appellate Lawyer, You Should Read This Book": This month's installment of my "Upon Further Review" column appears in today's edition of The Legal Intelligencer, Philadelphia's daily newspaper for lawyers.

My column this month focuses on the brand new Third Edition of "Winning on Appeal: Better Briefs and Oral Argument," by Tessa L. Dysart, Leslie H. Southwick, and Ruggero J. Aldisert. The book also includes a foreword by Justice Samuel A. Alito, Jr. I received my copy in the mail last week.
Posted at 10:14 AM by Howard Bashman



View live, online today's Senate Judiciary Committee confirmation hearing for D.C. Circuit nominee Gregory G. Katsas: Via this link. Among the unique challenges this nominee will face is whether confirmation can be attained even after listing my name in his answers to the Senate Judiciary Committee's questionnaire.

And don't change that channel even after Katsas has concluded his testimony, or else you risk being surprised down the road that a brand new federal district judge has the last name Beaverstock.
Posted at 09:54 AM by Howard Bashman



Constitutionsplaining with Justice Neil M. Gorsuch: Don't miss Nina Totenberg's lengthy segment on this week's installment of the First Mondays podcast.

In addition to discussing marijuana smoking, the partying habits of law school deans (in which interviewer Dan Epps describes a certain Harvard Law School faculty member in a manner that even I could identify), and the U.S. Supreme Court's recent gerrymandering oral argument, Totenberg dishes the gossip on the newest Justice.

Among the things Totenberg claims to have heard through the grapevine are: (1) Justice Elena Kagan and Gorsuch are having knock-down, drawn-out battles over the outcome of cases during the Court's private conferences; (2) now that Gorsuch has joined the Court, he doesn't really believe in precedent, notwithstanding that his firm belief in precedent was a major sales pitch at his SCOTUS confirmation hearings; and (3) Gorsuch simply isn't as smart as had been depicted (IQ tests, anyone?).

Of course, all of this and more that Totenberg discusses with interviewer Epps could simply be dismissed as "liberal propaganda," but it's certainly worth a listen, because when it comes to behind-the-scenes SCOTUS insights, all we have is rumors.
Posted at 09:32 AM by Howard Bashman



Monday, October 16, 2017

"Supreme Court refuses to hear case questioning Google's trademark; Lawsuit claimed 'google' had become synonymous with 'search the Internet'": David Kravets of Ars Technica has this report.
Posted at 08:45 PM by Howard Bashman


"U.S. Supreme Court declines Ten Commandments case": Hannah Grover of The Farmington (N.M.) Daily Times has this report.
Posted at 08:42 PM by Howard Bashman


"Settlement May Scuttle Securities-Fraud Clash at Supreme Court": Greg Stohr of Bloomberg News has this report.
Posted at 08:37 PM by Howard Bashman


"Justices to Decide on Forcing Technology Firms to Provide Data Held Abroad": Adam Liptak of The New York Times has this report.

Robert Barnes of The Washington Post reports that "Supreme Court to consider major digital privacy case on Microsoft email storage."

David G. Savage of The Los Angeles Times reports that "Supreme Court to decide if U.S. agents can obtain emails stored overseas by Microsoft."

Richard Wolf of USA Today reports that "Supreme Court will hear U.S.-Microsoft battle over emails."

Matt Day of The Seattle Times reports that "Supreme Court will take up Microsoft email warrant fight."

Mark Sherman of The Associated Press reports that "Court agrees to take on US-Microsoft dispute over emails."

Lawrence Hurley of Reuters reports that "U.S. Supreme Court to decide major Microsoft email privacy fight."

Greg Stohr of Bloomberg News reports that "Microsoft Email-Access Fight With U.S. Gets Top Court Review."

David Kravets of Ars Technica reports that "Supreme Court to decide if US has right to data on world's servers; Feds claim legal right to reach into the world's servers with a valid US warrant."

Josh Gerstein of Politico.com reports that "Supreme Court to hear case on accessing data stored abroad; Justice Department gets review of decision favoring Microsoft."

And Matt Ford of The Atlantic has a report headlined "Should Federal Prosecutors Be Able to Search Americans' Emails Overseas? The Supreme Court will resolve a standoff between Microsoft and federal prosecutors who want access to customer data stored in Ireland."
Posted at 07:56 PM by Howard Bashman



"Sotomayor discusses civics, other topics at Queens College talk": Ryan Brady of Queens Chronicle has this report.
Posted at 07:36 PM by Howard Bashman


"Greg Katsas -- Nominee for the U.S. Court of Appeals for the D.C. Circuit": Harsh Voruganti has this post at his blog, "The Vetting Room."
Posted at 07:32 PM by Howard Bashman


"American Express Fee Accusations Get U.S. High Court Hearing": Greg Stohr of Bloomberg News has this report.

And Andrew Chung of Reuters reports that "U.S. top court to review antitrust claims against American Express."
Posted at 05:26 PM by Howard Bashman



"Judge rejects Menendez request to toss bribery charges": Thomas Moriarty and MaryAnn Spoto of The Newark (N.J.) Star-Ledger have this report.

And Nick Corasaniti of The New York Times reports that "Menendez Trial Judge Rejects Motion to Dismiss the Case."
Posted at 05:06 PM by Howard Bashman



"Yahoo! can't withhold dead man's e-mails from family, SJC rules": John R. Ellement of The Boston Globe has this report.

Gintautas Dumcius of The Republican of Springfield, Massachusetts has an article headlined "Yes, Yahoo can give dead man's family members access to his email account, Massachusetts Supreme Judicial Court says."

And Nate Raymond of Reuters has a report headlined "Massachusetts court: Yahoo can give dead man's emails to siblings."

You can access today's ruling of the Supreme Judicial Court of Massachusetts at this link.
Posted at 03:33 PM by Howard Bashman



"Slow and Unsteady: Supreme Court's New Transcription Service." Kimberly Robinson has this post at Bloomberg BNA's "US Law Week Blog."
Posted at 03:02 PM by Howard Bashman


"How Anti-Trump Psychiatrists Are Mobilizing Behind the Twenty-Fifth Amendment": Law professor Jeannie Suk Gersen has this post online at The New Yorker.
Posted at 02:40 PM by Howard Bashman


"The Danger of President Pence: Trump's critics yearn for his exit; But Mike Pence, the corporate right's inside man, poses his own risks." Jane Mayer has this article in the October 23, 2017 issue of The New Yorker.
Posted at 02:36 PM by Howard Bashman


Ninth Circuit Judge M. Margaret McKeown to Receive White House Fellows Program Award: The White House Fellows Foundation and Association recently issued this news release.
Posted at 02:22 PM by Howard Bashman


"OT2017 #3: "Nowheresville" (ft. Nina Totenberg)." You can access today's new episode of the "First Mondays" podcast, featuring Ian Samuel and Dan Epps, via this link.
Posted at 02:14 PM by Howard Bashman


"Judge Ralph K. Winter Receives 2017 Devitt Award": The Administrative Office of the U.S. Courts has issued this news release.
Posted at 01:14 PM by Howard Bashman


"Court nominee faces scrutiny over Trump White House role": Josh Gerstein of Politico.com has an article that begins, "Greg Katsas has spent more than three decades burnishing a high-powered legal resume that makes him a solid pick for the D.C. Circuit Court of Appeals, but the biggest obstacle to his winning confirmation is the job he's had for the past nine months: serving as a top White House lawyer for President Donald Trump."
Posted at 01:09 PM by Howard Bashman


Access today's Order List of the U.S. Supreme Court: At this link. The Court granted review in four new cases.

In addition, in Scenic America, Inc. v. Dep't of Transp., No. 16-739, Justice Neil M. Gorsuch issued a statement, in which Chief Justice John G. Roberts, Jr. and Samuel A. Alito, Jr. joined, respecting the denial of certiorari.

And in Truehill v. Florida, No. 16-9448, Justice Stephen G. Breyer issued a dissent from denial of certiorari. And Justice Sonia Sotomayor also issued a dissent, in which Justices Ruth Bader Ginsburg and Breyer joined, from the denial of certiorari. Because four votes are needed to grant certiorari in a case, if Justice Elena Kagan (or any other Justice for that matter) had voted to grant certiorari, this death penalty case would have landed on the Court's merits docket.
Posted at 09:37 AM by Howard Bashman



Sunday, October 15, 2017

"The Morality of Administrative Law": Law professor Cass R. Sunstein and Adrian Vermeule have posted this article on SSRN (via "Legal Theory Blog").
Posted at 11:03 PM by Howard Bashman


"Texas Engaged In Viewpoint Discrimination In Removal of Bill of Rights Nativity Display": Howard Friedman has this post at his "Religion Clause" blog about a ruling that the U.S. District Court for the Western District of Texas issued on Friday.
Posted at 10:42 PM by Howard Bashman


"Menendez Trial May Hinge on a New Definition of Bribery": Nick Corasaniti of The New York Times has this report.
Posted at 10:35 PM by Howard Bashman


"Symposium on the Testimony of Lawrence B. Solum on Originalism at the Gorsuch Hearings": You can access the symposium papers via this link at the "Legal Theory Blog."
Posted at 10:28 PM by Howard Bashman


"Trump Closes a Health Dispute, but Leaves Open a Power Struggle": Carl Hulse has this new installment of his "On Washington" column online at The New York Times.
Posted at 10:22 PM by Howard Bashman


"A Free Pass for Corporations in Human Rights Suits?" Kenneth Jost has this post at his blog, "Jost on Justice."
Posted at 10:18 PM by Howard Bashman


"Editing Alchemy": Joseph Regalia has this post at the "Appellate Advocacy Blog."
Posted at 10:12 PM by Howard Bashman


"Guantanamo Defendant Is Sentenced, in Rare Success for Military Commission": Charlie Savage had this article in yesterday's edition of The New York Times.

And at "Just Security," David Luban has a post titled "Indefensible: Why Guantanamo defense lawyers can't ethically participate any longer."
Posted at 10:04 PM by Howard Bashman



"How the Supreme Court Can Soothe U.S. Political Strife: Curbing gerrymandering would encourage politicians to reach across the partisan aisle." Albert R. Hunt has this essay online at Bloomberg View.
Posted at 09:28 PM by Howard Bashman


"Meet a convicted felon who became a Georgetown law professor: Shon Hopwood was serving time for armed bank robbery when he discovered he had a brilliant mind for the law; Steve Kroft reports on an improbable tale of redemption." This video segment appeared on this evening's broadcast of the CBS News program "60 Minutes."
Posted at 09:02 PM by Howard Bashman


"The Obtuse Saboteur: Trump's plan to kill Obamacare isn't just reckless -- it's illegal, and likely to fail in the courts." Mark Joseph Stern has this jurisprudence essay online at Slate.
Posted at 08:50 PM by Howard Bashman


"Aiding Transgender Case, Sessions Defies His Image on Civil Rights": Matt Apuzzo of The New York Times has this report.
Posted at 08:40 PM by Howard Bashman


"Two Guns Per Person: A simple, constitutional proposal that protects both Americans' lives and liberty." Doug Pennington has this jurisprudence essay online at Slate.
Posted at 08:35 PM by Howard Bashman


Saturday, October 14, 2017

"Lesson for Ezekiel Elliott: The Contract Always Wins; The appeals court was clear in ruling that the NFL commissioner was within his rights to suspend the Dallas Cowboys player." Law professor Stephen L. Carter has this essay online at Bloomberg View.
Posted at 11:58 PM by Howard Bashman


"Appeals court keeps Arkansas abortion pill limits on hold": Andrew DeMillo of The Associated Press has this report.
Posted at 10:16 PM by Howard Bashman


"Maine abortion protester seeks Supreme Court review of noise law": Judy Harrison of The Bangor Daily News has this report.
Posted at 10:12 PM by Howard Bashman


"An Episcopalian judge helped decide an Episcopalian dispute at S.C. Supreme Court: Was that wrong?" Andrew Knapp of The Post and Courier of Charleston, South Carolina has this report.
Posted at 10:08 PM by Howard Bashman


"Law Review Elects First Ever Majority Female Class": Jamie D. Halper of The Harvard Crimson has this report.
Posted at 10:05 PM by Howard Bashman


"Many patent-holders stop looking to East Texas following Supreme Court ruling; Can Delaware handle the incoming caseload?" Joe Mullin of Ars Technica has this report.
Posted at 10:02 PM by Howard Bashman


"A Record Set by the OSG During the Obama Years": Adam Feldman has this post at his "Empirical SCOTUS" blog.
Posted at 04:22 PM by Howard Bashman


"Judges and Journalists: Accuracy and Access." The U.S. Court of Appeals for the Third Circuit is among the co-sponsors of this event, which will take place in Pittsburgh on October 31, 2017 from 11:00 a.m. to 4:00 p.m.

I will be one of the panelists for the final session, titled "Changes in the Media and Media Law." You can access the complete program, containing the location of the event, a list of all the speakers and panelists, and a sign-up form, via this link.
Posted at 03:12 PM by Howard Bashman



"Kim Davis, Once Jailed in America, Campaigns Against Gay Marriage in Romania": Liam Stack and Kit Gillet had this article in Friday's edition of The New York Times.
Posted at 10:28 AM by Howard Bashman


"D.C. Circuit Review -- Reviewed: 'Also Known as Fish.'" Aaron Nielson has this post at the "Notice & Comment" blog of the Yale Journal on Regulation.
Posted at 10:10 AM by Howard Bashman


"Review: In 'Marshall,' a Legal Pioneer Gives History a Shove." Manohla Dargis had this movie review in yesterday's edition of The New York Times.

And Jake Coyle of The Associated Press has a movie review titled "In 'Marshall,' a young Thurgood in Connecticut."
Posted at 10:05 AM by Howard Bashman



Friday, October 13, 2017

"My attempt at jury duty failed -- because I'm a nursing mother": Judith P. Miller has this essay online at The Chicago Tribune.
Posted at 04:28 PM by Howard Bashman


"Trump's Latest Travel Ban Could Be the Toughest to Challenge; Earlier iterations of the executive order were rushed and unpolished; But the third version could very well pass the Supreme Court's test": Law professor Garrett Epps has this essay online at The Atlantic.
Posted at 02:38 PM by Howard Bashman


"The Left's New Plan to Gut Religious-Liberty Protections; In a flurry of pending court cases, liberals are arguing for a radical reinterpretation of the Constitution's establishment clause": Margot Cleveland has this essay online at National Review.
Posted at 02:03 PM by Howard Bashman


This Red Hot class action doesn't belong in federal court, Eighth Circuit rules: You can access today's ruling of the U.S. Court of Appeals for the Eighth Circuit at this link.
Posted at 01:54 PM by Howard Bashman


"Why courts ruled in NFL's favor, allowing league to enforce Ezekiel Elliott's suspension immediately": Kate Hairopoulos has this front page article in today's edition of The Dallas Morning News.

Drew Davison of The Fort Worth Star-Telegram reports that "Court ruling OKs NFL's investigation process, Ezekiel Elliott now suspended."

In today's edition of The New York Times, Benjamin Hoffman has an article headlined "Ezekiel Elliott's 6-Game N.F.L. Suspension Reinstated by Court."

Lauren Theisen of Deadspin.com reports that "Appeals Court Vacates Ezekiel Elliott's Injunction, Clears Path To Suspension."

At SI.com's "MMQB" blog, Michael McCann has a post titled "Ezekiel Elliott Suspension: Breaking Down Remaining Legal Options for the Cowboys RB."

And Austin Knoblauch of NFL.com has a report titled "What happens next in the Ezekiel Elliott case?"

Yesterday, a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued this non-precedential ruling in the case.

Update: After this post originally appeared, the Fifth Circuit reissued its ruling in this case as a published decision.
Posted at 01:48 PM by Howard Bashman



Thursday, October 12, 2017

"Judicial 'Blue Slips' Give Single Senators Too Much Say; The filibuster for court nominees is gone; This custom can end too": Law professor Noah Feldman has this essay online at Bloomberg View.
Posted at 11:30 PM by Howard Bashman


Eleventh Circuit Judge Kevin C. Newsom makes a strong case for prompt inclusion among my 13 favorite writers now serving in the federal appellate judiciary: For one reason or another, a couple of vacancies now exist on that list. Judge Newsom's most recent published opinion issued today on behalf of a unanimous three-judge panel can be accessed here. If added to that list, Newsom would give the Eleventh Circuit three representatives, rivaling the Seventh Circuit back when it had Terence T. Evans in addition to Posner and Easterbrook.

A new Sixth Circuit judge with the initials ART is also very much in the running to join that list. And say what you will about the ideology (actual or perceived) of President Trump's current federal appellate court nominees, but it seems indisputable that several more very talented writers are among that group.
Posted at 11:15 PM by Howard Bashman



"The radical ideology of this Trump nominee makes even the most conservative SCOTUS justices uneasy: It's a nice government you have there; Would be a shame if someone breaks it." Online at ThinkProgress, Ian Millhiser has an essay that begins, "Justice Don Willett is charming."
Posted at 08:20 PM by Howard Bashman


"Justices Weigh Immunity for Corporations in Human Rights Cases Abroad": Adam Liptak has this article in today's edition of The New York Times.

In today's edition of The Washington Post, Robert Barnes has an article headlined "High court wrestles with law letting foreign citizens sue overseas firms."

In today's edition of The Wall Street Journal, Jess Bravin has an article headlined "Supreme Court Hears Arguments in Case Against Jordan's Arab Bank; Justices consider an 18th Century statute authorizing foreigners to file cases in U.S. alleging violations of international law."

Richard Wolf of USA Today reports that "Supreme Court divided over Mideast terrorism financing."

Greg Stohr of Bloomberg News reports that "U.S. Supreme Court May Shield Companies From Human-Rights Lawsuits."

Lawrence Hurley of Reuters reports that "U.S. justices question Arab Bank liability in militant attacks."

And Alison Frankel's "On the Case" from Thomson Reuters News & Insight has a post titled "Justice Gorsuch's strange detour in Alien Tort Statute case."

You can access at this link the transcript of yesterday's U.S. Supreme Court oral argument in Jesner v. Arab Bank, PLC, No. 16-499.
Posted at 08:04 PM by Howard Bashman



"NC county asks US Supreme Court to reaffirm freedom to pray before public meetings; Rowan County request gives high court opportunity to clear up conflicts between lower courts": Alliance Defending Freedom has issued this news release about a petition for writ of certiorari filed today.
Posted at 04:22 PM by Howard Bashman


Wednesday, October 11, 2017

"No Rehearing in Fight Over Berkeley Cellphone Warning": Nicholas Iovino of Courthouse News Service has this report on an order, accompanied by a concurring and a dissenting opinion, denying rehearing en banc that the U.S. Court of Appeals for the Ninth Circuit issued today.
Posted at 11:22 PM by Howard Bashman


"Statement on Confidentiality of Court Materials": The U.S. Court of Appeals for the Seventh Circuit has posted online this document, which includes as an attachment a letter that Chief Judge Diane P. Wood received from the Committee on Codes of Conduct of the Judicial Conference of the United States.
Posted at 11:14 PM by Howard Bashman


"Blogging partner rampages against Third Circuit ruling": Matthew Stiegler has this post at his "CA3blog."
Posted at 11:00 PM by Howard Bashman


"The Guy in the Bully Pulpit Can't Be a Bully; The Constitution doesn't allow Trump to use the IRS to punish the NFL over player protests: It's a free-speech thing." Law professor Noah Feldman has this essay online at Bloomberg View.
Posted at 10:33 PM by Howard Bashman


"9th Circuit Rules There's No Constitutional Right to Sell Firearms. Will the Supreme Court Care?" Mark Joseph Stern has this essay online at Slate.
Posted at 10:20 PM by Howard Bashman


"Supreme Court Ruling Threatens to Derail Case Against Menendez": Nick Corasaniti of The New York Times has this report.
Posted at 09:36 PM by Howard Bashman


"The Legal Resistance to President Trump: The thinly veiled legal revolt against President Trump playing out in the courts will set lasting and dangerous precedents." Law professor Josh Blackman has this essay online at National Review.
Posted at 08:52 PM by Howard Bashman


"On Contraception, It's Church Over State": Linda Greenhouse has this essay online at The New York Times.
Posted at 08:02 PM by Howard Bashman


"How Trump Uses 'Religious Liberty' to Attack L.G.B.T. Rights": Masha Gessen has this post online at The New Yorker.
Posted at 07:46 PM by Howard Bashman


"Grassley not planning to change 'blue slip' procedure for judicial nominees": Ted Barrett of CNN.com has this report.
Posted at 07:04 PM by Howard Bashman


"2017 U.S. Supreme Court Preview": UC Irvine School of Law has posted this video on YouTube featuring law professors Jennifer Chacon, Leah Litman, and Rick Hasen.
Posted at 04:32 PM by Howard Bashman


"U.S. Supreme Court to hear Georgia-Florida water rights case": Tamar Hallerman and Greg Bluestein of The Atlanta Journal-Constitution have this report.

Tyler Estep of The Atlanta Journal-Constitution has an article headlined "Gov. Deal on Supreme Court water case: Georgia has 'a good story to tell.'"

And Lloyd Dunkelberger of the News Service of Florida reports that "U.S. Supreme Court wades into Florida-Georgia water war."
Posted at 04:18 PM by Howard Bashman



"Texas nominee for federal court at odds with Trump on birthright citizenship; Last month, President Donald Trump said he is nominating Dallas attorney James Ho to the U.S. 5th Circuit Court of Appeals; Years of his writing show a strong interest by Ho in the thorny issue of birthright citizenship": Emma Platoff of The Texas Tribune has this report.
Posted at 04:08 PM by Howard Bashman


"Mitch McConnell Is Keeping The Senate Rule That Lets Dems Block Trump's Judges; The GOP leader may not personally be a fan of blue slips, but he's not getting rid of them, says his spokesman": Jennifer Bendery of HuffPost has this report.

Just a few minutes before that HuffPost report appeared online, Burgess Everett and Seung Min Kim of Politico.com reported that "McConnell ratchets up judicial wars -- again; The Senate leader wants to end the long-running practice of giving home-state senators sign-off on court nominees."
Posted at 04:05 PM by Howard Bashman



"Companies Ask Supreme Court to Hear Gay-Rights Case; Apple, Cigna among dozens of businesses at odds with Trump administration's view": Jess Bravin of The Wall Street Journal has this report.
Posted at 03:54 PM by Howard Bashman


"Supreme Court 2016 Statutory Term in Review: Perry v. MSPB, Punctuating Adverbial and Adjectival Phrases, and the Beach Boys." Asher Steinberg has this lengthy but interesting post at his "The Narrowest Grounds" blog.
Posted at 03:50 PM by Howard Bashman


Tuesday, October 10, 2017

Programming note: On Wednesday morning, I will be rearguing an appeal before a three-judge panel of the Superior Court of Pennsylvania. I originally argued this appeal on February 2, 2016, and I posted my client's Brief for Plaintiff-Appellee in the case (the second of two cases I was arguing that day before the same three-judge panel) in this earlier post.

The original three-judge panel announced that it was deadlocked on May 1, 2017 after one of the three judges on the panel recused himself. The recusal and the deadlock were disclosed simultaneously that day.

Arguing against me on appeal -- as he has in many high-value appeals in which I have been fortunate to represent the prevailing plaintiff -- is Dechert attorney Robert C. Heim, a leader of Philadelphia's corporate defense bar in cases of great importance.

Being good lawyers themselves, Heim and his colleagues can be counted on to recognize and pursue the strongest arguments available to their client on appeal. In this case, the defendant-appellant's principal arguments are that the trial judge as finder-of-fact issued findings that lack support in the evidence and that the trial judge was biased against the defendant and insurance companies in general. The outcome of the appeal, some 20 months after its original oral argument, remains to be decided.

As a result of my oral argument on Wednesday morning, additional posts will appear here on Wednesday afternoon.
Posted at 10:42 PM by Howard Bashman



"Federal judge panel upholds Alameda County's controversial gun ordinance": David DeBolt of The East Bay Times has this report.

And Nick McCann of Courthouse News Service reports that "2nd Amendment Doesn't Include Right to Sell Guns, Full 9th Circuit Rules."

You can access today's ruling of an 11-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 10:10 PM by Howard Bashman



"Court reinstates family's lawsuit against deputy who fatally shot man in Eloy": Howard Fischer of The Arizona Daily Star has this report on a ruling that the U.S. Court of Appeals for the Ninth Circuit issued today.
Posted at 10:02 PM by Howard Bashman


"But none of this matters because California doesn't have a death penalty." So writes Circuit Judge Alex Kozinski in a dissent from a ruling that a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued today.
Posted at 09:54 PM by Howard Bashman


"An Even More Insidious Kind of Gerrymandering: In North Carolina, Republicans want to use redistricting to kick Democrats off the courts." Mark Joseph Stern has this jurisprudence essay online at Slate.
Posted at 09:16 PM by Howard Bashman


"In victory for Trump, Supreme Court dismisses travel ban case": Richard Wolf and Gregory Korte of USA Today have this report.

Adam Liptak of The New York Times reports that "Supreme Court Dismisses Appeal of Case on Expired Travel Ban."

Robert Barnes of The Washington Post reports that "Supreme Court dismisses case against Trump's expired travel ban."

Mark Sherman of The Associated Press reports that "Supreme Court dismisses 1 of 2 travel ban cases."

Lawrence Hurley of Reuters reports that "Supreme Court tosses one of two travel ban challenges."

Greg Stohr of Bloomberg News reports that "High Court Dismisses One Trump Travel Ban Case, May Drop Second."

And Ariane de Vogue of CNN.com reports that "Supreme Court dismisses one of two travel ban cases."

You can access this evening's order of the U.S. Supreme Court at this link.
Posted at 09:00 PM by Howard Bashman



"How Appealing Still Appeals": This blog and its author are the subject of the alumni profile written by Andrew Faught contained in the Fall 2017 issue of Emory Lawyer magazine, an issue whose cover features an image from the law school's recent Centennial Gala.
Posted at 07:18 PM by Howard Bashman


"Attorneys in the Clutch": Adam Feldman has this post at his "Empirical SCOTUS" blog.
Posted at 03:33 PM by Howard Bashman


"McConnell tries to defuse conservative anger over stalled judicial nominations": Seung Min Kim and Burgess Everett of Politico.com have this report.
Posted at 11:00 AM by Howard Bashman


Access today's Order List of the U.S. Supreme Court: At this link. The Court did not grant review in any new cases, but the Court did call for the views of the Solicitor General in one case.
Posted at 09:38 AM by Howard Bashman


Monday, October 9, 2017

"The Strange Case of Puerto Rico: How a series of racist Supreme Court decisions cemented the island's second-class status." Doug Mack has this essay online at Slate.
Posted at 11:16 PM by Howard Bashman


"Holding Prosecutors Accountable Is Hard. It Could Get Harder." Alan Feuer has this article in today's edition of The New York Times.
Posted at 09:33 PM by Howard Bashman


"Should Trump DOJ get a mulligan on 4th, 9th Circuit travel ban opinions?" Alison Frankel's "On the Case" from Thomson Reuters News & Insight has this post.
Posted at 09:16 PM by Howard Bashman


"Confronting Crawford: Justice Scalia, the Judicial Method, and the Limits(?) of Originalism." Law professor Gary S. Lawson has posted this paper on SSRN (via "Legal Theory Blog").
Posted at 01:36 PM by Howard Bashman


"Compelled Association: If the Supreme Court thinks nonmembers can't be compelled to pay union fees, then unions can't be compelled to represent nonmembers." Daniel Horwitz has this jurisprudence essay online at Slate.
Posted at 01:30 PM by Howard Bashman


"Will the Supreme Court Unravel Public Employee Unions? The conservative justices seem eager to deal a fatal blow to one of the major constituencies of the Democratic Party." Law professor Garrett Epps has this essay online at The Atlantic.
Posted at 08:20 AM by Howard Bashman


"OT2017 #2: 'Who is the River Master?'" You can access today's new episode of the "First Mondays" podcast, featuring Ian Samuel and Dan Epps, via this link.
Posted at 08:14 AM by Howard Bashman


"Facing the Death Penalty With a Disloyal Lawyer": Adam Liptak will have this new installment of his "Sidebar" column in Tuesday's edition of The New York Times.
Posted at 08:12 AM by Howard Bashman


Sunday, October 8, 2017

"Satanist wins transfer of her abortion rights case to the Missouri Supreme Court": Max Londberg of The Kansas City Star has this report.
Posted at 10:28 PM by Howard Bashman


"These Are the Only Two Photos of the US Supreme Court in Session": Michael Zhang has this post at PetaPixel.
Posted at 10:24 PM by Howard Bashman


"Partisan Gerrymanders Aren't Intentional Viewpoint Discrimination (or Any Other Type of Discrimination)": Asher Steinberg has this post at his blog, "The Narrowest Grounds."
Posted at 07:55 PM by Howard Bashman


"Supreme Court ponders if lawyer can concede client's guilt when accused claims innocence": Robert Barnes of The Washington Post has this report.
Posted at 07:44 PM by Howard Bashman


"The Letter and the Spirit: A Unified Theory of Originalism." Law professor Randy E. Barnett and Evan D. Bernick have posted this article on SSRN.
Posted at 07:42 PM by Howard Bashman


"Corpus Linguistics as a Tool in Legal Interpretation": Professors Lawrence M. Solan and Tammy A Gales have posted this article on SSRN (via "Legal Theory Blog").
Posted at 10:52 AM by Howard Bashman


"D.C. Circuit Review -- Reviewed: 'Most Things I Worry About.'" Aaron Nielson has this post at the "Notice & Comment" blog of the Yale Journal on Regulation.
Posted at 10:48 AM by Howard Bashman


"Three Quick Observations on the U.S. Citizen ISIL Detainee": Marty Lederman has this post at "Just Security."
Posted at 10:44 AM by Howard Bashman


"'Makeweight Excuses' on Political Gerrymandering": Kenneth Jost has this post at his blog, "Jost on Justice."
Posted at 10:42 AM by Howard Bashman


"Gorsuch v. Roberts: The rookie takes on the chief." Joan Biskupic of CNN.com has this news analysis.
Posted at 10:40 AM by Howard Bashman


Saturday, October 7, 2017

"'Good reason' no longer needed to carry a concealed gun in D.C." Peter Jamison and Ellie Silverman of The Washington Post have this report.
Posted at 08:12 PM by Howard Bashman


"Videos from 2017 Ninth Circuit Judicial Conference Program Now Available": If, like me, you were wondering when the U.S. Court of Appeals for the Ninth Circuit would post online the video of the programs from this summer's judicial conference, I'm pleased to report that it has happened, as noted in this recent news release. All the videos can be accessed via this link.

Readers may recall that Justice Neil M. Gorsuch attended the conference in place of Justice Anthony M. Kennedy. Justice Gorsuch appears in the following videos: "Opening Ceremony and Naturalization Ceremony": "2017 Ninth Circuit Civics Contest Award Winner Presentations"; and "Civics Education in the Ninth Circuit and Beyond: A Forum for Sharing New Ideas and Best Practices."

Other videos from the conference that readers may find of interest include: "Korematsu: A Historical Overview"; "Supreme Court Review"; "One on One with the AO Director"; "Lies, Damn Lies, and the News? Fake News: What It Is, What It Means, and Why It Matters"; "Public Confidence in the Election Process"; and "May the Force Be With You: The Future of Science in the Courtroom."

Just as the Ninth Circuit deserves tremendous accolades for posting video of its oral arguments online promptly, the Ninth Circuit has done a great service to lawyers and members of the general public who were unable to attend the Judicial Conference by making the Conference's programming freely available online.
Posted at 07:45 PM by Howard Bashman



"Court: Movie theaters must accommodate deaf-blind patrons." Michael Rubinkam of The Associated Press has this report on a ruling that the U.S. Court of Appeals for the Third Circuit issued yesterday.
Posted at 06:52 PM by Howard Bashman


"The Justices Have Questions About How to Fix Partisan Gerrymandering: Here's everything they need to know." Law professor Nicholas Stephanopoulos has this jurisprudence essay online at Slate.
Posted at 10:04 AM by Howard Bashman


"How the Court Can Challenge Extreme Gerrymandering: The partisan design of electoral districts, aided by technology, can pose a threat to the very idea of self-government." Law professor Cass R. Sunstein has this essay online at Bloomberg View.
Posted at 10:00 AM by Howard Bashman


"Bloody Heller: The Supreme Court created a gun rights crisis it's unwilling to solve." Dahlia Lithwick has this jurisprudence essay online at Slate.
Posted at 09:57 AM by Howard Bashman


"No cameras, please: How the Supreme Court shuns the spotlight." Ariane de Vogue of CNN.com has this report.
Posted at 09:54 AM by Howard Bashman


"How Justice Kennedy Could Give Both Parties a Win: His theory of free speech could be used strike down partisan gerrymandering while upholding a cake baker's right to discriminate." Law professor Noah Feldman has this essay online at Bloomberg View.
Posted at 09:52 AM by Howard Bashman


Friday, October 6, 2017

In today's mail: I received a copy of the new book "The Battle for the Court: Interest Groups, Judicial Elections, and Public Policy," by Lawrence Baum, David Klein, and Matthew J. Streb.
Posted at 05:36 PM by Howard Bashman


"Richard Posner, Unedited (Part One)." Steve Lubet has this post at "The Faculty Lounge."
Posted at 05:26 PM by Howard Bashman


"Supreme Court's newest justice has an elk as an office mate": Jessica Gresko of The Associated Press has this report.
Posted at 08:26 AM by Howard Bashman


Thursday, October 5, 2017

"Condemned inmate Duane Buck escapes death penalty": Brian Rogers of The Houston Chronicle has this report.

Alex Arriaga of The Texas Tribune reports that "Texas death row inmate Duane Buck has sentence reduced to life after Supreme Court orders retrial."

And Matthew Haag of The New York Times reports that "Texas Man's Death Sentence Thrown Out Over Racist Testimony."
Posted at 10:54 PM by Howard Bashman



"Trump Administration Set to Roll Back Birth Control Mandate": Robert Pear will have this article in Friday's edition of The New York Times.
Posted at 10:20 PM by Howard Bashman


"Reforming Richard Posner: The Former Federal Judge Needs to Overhaul His Assessment of the Seventh Circuit's Staff Attorney Program and Correct the Errors in His Book." Zoran (Zoki) Tasic has posted this interesting article on Google Drive.
Posted at 08:47 PM by Howard Bashman


"Dear Senators: the Third Circuit's shortage of women judges is a crisis." Matthew Stiegler has this post at his "CA3blog."
Posted at 08:14 PM by Howard Bashman


"The Supreme Court's Gerrymandering Case and Strategies for Winning Justice Kennedy's Vote": Jeffrey Toobin has this post online at The New Yorker.
Posted at 04:58 PM by Howard Bashman


"D.C. will not appeal concealed carry gun ruling to Supreme Court": Peter Jamison and Ann E. Marimow of The Washington Post have this report.

And Jessica Gresko of The Associated Press reports that "DC officials won't appeal ruling against strict gun law."
Posted at 04:48 PM by Howard Bashman



"Assessing the ACLU Habeas Petition on Behalf of the Unnamed US Citizen Held as an Enemy Combatant in Iraq": Robert Chesney has this post at the "Lawfare" blog.

And yesterday at the "Just Security" blog, Steve Vladeck had a post titled "The Increasingly Unsettling Indifference Toward the US Citizen 'Enemy Combatant.'"
Posted at 04:35 PM by Howard Bashman



"Administration says Supreme Court should stop review of past travel bans": Robert Barnes of The Washington Post has this report.

Richard Wolf of USA Today reports that "Trump urges Supreme Court to drop travel ban case."

Lawrence Hurley of Reuters reports that "Challengers urge Supreme Court to rule on Trump travel ban."

And Zoe Tillman of BuzzFeed News reports that "The Trump Administration Wants The Supreme Court To Toss Orders That Blocked The Earlier Travel Ban."
Posted at 04:26 PM by Howard Bashman



"U.S. court reverses ban on sale of Sanofi, Regeneron drug Praluent": Brendan Pierson of Reuters has this report on a ruling that the U.S. Court of Appeals for the Federal Circuit issued today.

Update: Attorney Paul D. Clement argued the appeal for appellant, and if you want to be able to claim that Clement blinded you with science (added bonus, here's the extended version) -- discussing epitopes, antigens, amino acids, and more -- you can access the oral argument audio via this link (12.4 MB mp3 audio file).
Posted at 01:24 PM by Howard Bashman



"Response to Richard Posner's new book, by a former 7th Circuit staff attorney": Eugene Volokh has this post at "The Volokh Conspiracy."
Posted at 10:35 AM by Howard Bashman


"I Heard the Voice of Scalia: Fans of the late Justice will treasure a new collection of his speeches." Mark Pulliam has this post at the blog of the Library of Law and Liberty.
Posted at 09:52 AM by Howard Bashman


"Who Will Justice Kennedy Believe When It Comes to Gerrymandering?" David Daley has this post online at The New Yorker.
Posted at 09:48 AM by Howard Bashman


"The Justice Department Is Investigating Harvard's Admissions Practices": Zoe Tillman of BuzzFeed News has this report.
Posted at 09:45 AM by Howard Bashman


"The Long Reach of Guantanamo Bay Military Commissions": Law professor Stephen I. Vladeck has this essay online at The New York Times.
Posted at 09:42 AM by Howard Bashman


"Justice Kennedy, The First Amendment, and Partisan Gerrymandering": David Gans has this post at the "Take Care" blog.

At his "The Narrowest Grounds" blog, Asher Steinberg has a post titled "A Miscellany of Thoughts on Justice Kennedy's Maximal-Partisanship Hypothetical in Gill."

And at his "Modern Democracy" blog, Michael Parsons has a post titled "Turmeric for a Rare Consensus."
Posted at 07:18 AM by Howard Bashman



"Partisan Gerrymandering Got the Sotomayor Treatment: The justice has a knack for crafting simple, devastating questions; She was at her best in Gill v. Whitford." Mark Joseph Stern has this jurisprudence essay online at Slate.
Posted at 07:12 AM by Howard Bashman


Wednesday, October 4, 2017

"Gorsuch Joins Court's Liberals Over Protections for Criminal Defendants; Case explores whether defendants give all rights to appeal after entering a plea bargain": Jess Bravin will have this article in Thursday's edition of The Wall Street Journal.

You can access at this link the transcript of today's U.S. Supreme Court oral argument in Class v. United States, No. 16-424.
Posted at 10:20 PM by Howard Bashman



"Trump Judicial Nominees Get Tough Going Over From Hawaii's Hirono": Brandi Buchman of Courthouse News Service has this report.
Posted at 09:00 PM by Howard Bashman


"Justices recall their own partying days in case over policing and arrests": Ann E. Marimow of The Washington Post has this report, along with an article headlined "This notorious house party made it all the way to the Supreme Court. It was hosted by a mystery woman named 'Peaches.'"

And Jessica Gresko of The Associated Press reports that "Raucous DC house party subject of Supreme Court case."

You can access at this link the transcript of today's U.S. Supreme Court oral argument in District of Columbia v. Wesby, No. 15-1485.
Posted at 08:56 PM by Howard Bashman



"Malloy Appoints Two To State Supreme Court": Edmund H. Mahony of The Hartford Courant has this report.
Posted at 08:50 PM by Howard Bashman


"Antonin Scalia's Less Well-Known Legacy: His Speeches." Nina Totenberg had this audio segment on this evening's broadcast of NPR's "All Things Considered."
Posted at 08:15 PM by Howard Bashman


"Former Sheriff Joe Arpaio's presidential pardon accepted by federal judge": Michael Kiefer of The Arizona Republic has this report.

And Jacques Billeaud of The Associated Press reports that "Judge lets Trump's pardon of former Sheriff Arpaio stand."
Posted at 08:04 PM by Howard Bashman



"Quick thoughts on Bibas's Senate hearing": Matthew Stiegler has this post at his "CA3blog."

I listened to the testimony of Third Circuit nominee Stephanos Bibas at this morning's Senate Judiciary Committee hearing (you can view the archieved video via this link), and I found him to come across as extraordinarily intelligent, enthusiastic, and thoughtful. He was even considerate enough to speak quickly when answering so that Senators could ask more questions (something that other nominees seem to deliberately avoid).

I for one am really looking forward to seeing him in action at the Third Circuit, occupying the seat that once belonged to the Third Circuit judge for whom I clerked immediately after law school.
Posted at 02:34 PM by Howard Bashman



"Federal Circuit: PTO Must be More Liberal in Allowing Amendments during AIA Trials." Dennis Crouch has this post at his "Patently-O" blog about a splintered en banc ruling that the U.S. Court of Appeals for the Federal Circuit issued today.
Posted at 01:25 PM by Howard Bashman


"'Scalia Speaks' Editor Describes His Boss's Spoken Word Legacy": Patrick Gregory has this post at the "US Law Week Blog."

And at the "Mirror of Justice" blog, Erika Bachiochi has a post titled "A Man of Good Humor and Good Will: Scalia Speaks, Ginsburg praises."
Posted at 01:19 PM by Howard Bashman



"New discussion in challenge to LGBT religious objections law": Emily Wagster Pettus of The Associated Press has a report that begins, "Opponents might get another chance to block a Mississippi law that lets government workers or private businesspeople cite religious beliefs to deny services to gay or lesbian couples."
Posted at 01:14 PM by Howard Bashman


"Indiana Supreme Court: Sex with 16-year-olds is legal, but sending them nude photos is not." Holly V. Hays of The Indianapolis Star has this report.

And Dan Carden of The Times of Munster, Indiana reports that "In Indiana, adults having sex with 16-year-olds is allowed, sending them explicit photos is not."

You can access Monday's ruling of the Supreme Court of Indiana in State v. Thakar at this link.
Posted at 01:09 PM by Howard Bashman



"The front line of America's war over abortion: Six states each have ONE remaining licensed clinic surrounded by pro-life centers where protesters line the streets chasing down patients to plead with them to 'make the right decision.'" Anna Hopkins of The Daily Mail (UK) has this report.

And Andrew DeMillo of The Associated Press reports that "Planned Parenthood seeks halt to Arkansas abortion pill law."
Posted at 01:02 PM by Howard Bashman



"First Digital Sales Tax Dispute Reaches U.S. Supreme Court": Ryan Prete of Bloomberg BNA has a report that begins, "South Dakota's Attorney General has filed the first of an expected wave of state petitions asking the U.S. Supreme Court to reconsider a 25-year-old opinion restricting states' ability to tax remote retailers."
Posted at 12:57 PM by Howard Bashman


"Cosby accuser to ask U.S. appeals court to revive defamation lawsuit": Nate Raymond of Reuters has a report that begins, "A U.S. appeals court will on Wednesday weigh whether to revive a lawsuit by an actress who said Bill Cosby defamed her by calling her a liar after she claimed the comedian raped her. The 1st U.S. Circuit Court of Appeals in Boston is scheduled to hear arguments by lawyers for Katherine Mae McKee, who claimed Cosby defamed her by denying her claims, which she made in an interview with the New York Daily News in 2014."
Posted at 12:52 PM by Howard Bashman


"Could Joe Arpaio Break the Presidential Pardon? His case is still alive; It could test the limits of pardon power -- and not just for Trump." Law professor Richard Primus has this essay online at Politico Magazine.
Posted at 11:04 AM by Howard Bashman


"Gorsuch's Rejection of a Politicized Executive Branch: When the Trump administration is challenged for crossing legal lines, how will the new justice vote?" Law professor Cass R. Sunstein has this essay online at Bloomberg View.
Posted at 10:45 AM by Howard Bashman


"Fearing his retirement, liberals hope Anthony Kennedy can help resist the conservative tide": Ariane de Vogue of CNN.com has this report.
Posted at 10:42 AM by Howard Bashman


"D.C. weighs gun law appeal, with fate of restrictions nationwide in the balance": Peter Jamison and Ann E. Marimow have this article in today's edition of The Washington Post.
Posted at 10:38 AM by Howard Bashman


"In partisan times, chief justice worries about the court's image": Joan Biskupic of CNN.com has this news analysis.
Posted at 10:33 AM by Howard Bashman


"Trump Judicial Pick Don Willett Is Overrated, Yet Promising; On the Texas Supreme Court, judicial restraint is a dodge, not a virtue": Jon Cassidy has this post online at The American Spectator.
Posted at 09:33 AM by Howard Bashman


View this morning's U.S. Senate Judiciary Committee confirmation hearing for Third Circuit nominee Stephanos Bibas: The hearing is scheduled to begin at 10 a.m. eastern time, and you can view the hearing live, online via this link once it gets underway.

And at his "CA3blog," Matthew Stiegler has a post titled "Even more on Bibas."
Posted at 09:22 AM by Howard Bashman



"Justices wade into water rule, show interest in Va. mining": Amanda Reilly of Greenwire has this report.
Posted at 08:12 AM by Howard Bashman


"Bringing the party to the Supreme Court in a case about searches and arrests": Ann E. Marimow of The Washington Post has this report.
Posted at 08:10 AM by Howard Bashman


"Supreme Court Appears Divided Over Gerrymandering; Justices reviewing Wisconsin case express concern, but some seem reluctant to intervene": Jess Bravin and Brent Kendall have this article in today's edition of The Wall Street Journal.

And in today's edition of The Milwaukee Journal Sentinel, Patrick Marley has a front page article headlined "Supreme Court shows divisions in Wisconsin redistricting case that could reshape U.S. politics."
Posted at 08:02 AM by Howard Bashman



Tuesday, October 3, 2017

"The statistic's sublime pointlessness is pure baseball." So writes Stephen Marche in a post online at The New Yorker titled "The Error in Baseball and the Moral Dimension to American Life."
Posted at 11:55 PM by Howard Bashman


"Gerrymandering and Association": Online at SSRN, law professor Daniel P. Tokaji has posted an article whose abstract begins, "This article argues that the First Amendment expressive right of association prohibits excessive partisan gerrymanders." (h/t "Legal Theory Blog")
Posted at 11:24 PM by Howard Bashman


"Military Commissions Loom Large at Supreme Court": Harry Graver has this post at the "Lawfare" blog.
Posted at 11:20 PM by Howard Bashman


"The Authority of the Court": At the "Balkinization" blog, Joseph Fishkin has a post that begins, "The Justices of the Supreme Court are nine of the most powerful people on the face of the earth. Yet it seems to be their lot to be forever anxious that exercising their power might undermine it."
Posted at 11:16 PM by Howard Bashman


"Appeals court rejects strict 'bare-metal' defense in asbestos cases": Jonathan Stempel of Reuters has this report (subscription required for full access) on a ruling that the U.S. Court of Appeals for the Third Circuit issued today.
Posted at 10:54 PM by Howard Bashman


"Supreme Court Weighs Immigrants' Rights to Have Detention Reviewed": Vivian Yee will have this article in Wednesday's edition of The New York Times.

Ann E. Marimow of The Washington Post reports that "Supreme Court debates long detentions for immigrants facing deportation."

Lawrence Hurley of Reuters reports that "Supreme Court wrestles with immigration bond hearing dispute."

And Jessica Gresko of The Associated Press reports that "Supreme Court weighs case on detention of immigrants."

You can access at this link the transcript of today's U.S. Supreme Court reargument of Jennings v. Rodriguez, No. 15-1204.
Posted at 10:20 PM by Howard Bashman



"Steak Rubs, Gobbledygook and the Future of American Politics": Jesse Wegman has this Editorial Observer essay online at The New York Times.
Posted at 10:12 PM by Howard Bashman


"Fake news comes to the Supreme Court": Columnist Dana Milbank has this essay online at The Washington Post.
Posted at 10:06 PM by Howard Bashman


"Gorsuch Could Disappoint Conservatives On Immigration": Amelia Thomson-DeVeaux has this post at FiveThirtyEight.
Posted at 08:00 PM by Howard Bashman


"Whoa! See Felicity Jones' amazing transformation into Ruth Bader Ginsburg." Bryan Alexander of USA Today has this report.
Posted at 07:56 PM by Howard Bashman


"Justice Department appeals lawyer on Mueller Russia probe": Karen Freifeld of Reuters has this report.
Posted at 07:54 PM by Howard Bashman


"Kennedy's Vote Is in Play on Voting Maps Warped by Politics": Adam Liptak and Michael D. Shear of The New York Times have this report.

Robert Barnes of The Washington Post reports that "Supreme Court takes up Wisconsin as test in partisan gerrymandering claims."

On this evening's broadcast of NPR's "All Things Considered," Nina Totenberg had an audio segment titled "Partisan Gerrymandering: How Much Is Too Much?"

And at the "Democracy in America" blog of The Economist, Steven Mazie has a post titled "Slaying the gerrymander: The justices puzzle over how to rein in partisan redistricting; The key vote, Anthony Kennedy, may be inclined to finally set limits to the practice."
Posted at 07:52 PM by Howard Bashman



"Ginsburg Slaps Gorsuch in Gerrymandering Case": Jeffrey Toobin has this post online at The New Yorker.
Posted at 07:32 PM by Howard Bashman


"A 'view' from the courtroom: A big windup on partisan gerrymandering." Mark Walsh has this post at "SCOTUSblog."
Posted at 05:09 PM by Howard Bashman


"With Justice Kennedy Seriously Considering Being the 5th Vote to Rein in Partisan Gerrymandering, The Chief Justice Worries About the Political Thicket": Rick Hasen has this post at his "Election Law Blog."
Posted at 03:20 PM by Howard Bashman


Access the transcript of today's U.S. Supreme Court oral argument in Gill v. Whitford, No. 16-1161: At this link.
Posted at 03:15 PM by Howard Bashman


"For the first time, the Supreme Court seems receptive to imposing some limits on partisan gerrymanders": David G. Savage of The Los Angeles Times has this report.

Richard Wolf of USA Today reports that "Supreme Court debates politics, and Kennedy's silence speaks volumes."

Ariane de Vogue of CNN.com reports that "Anthony Kennedy doesn't tip hand in gerrymandering case."

Josh Gerstein of Politico.com reports that "Supreme Court eyes partisan gerrymandering; Kennedy seen as swing vote that could blunt GOP's map-drawing successes."

And earlier, online at The New Yorker, Jeff Shesol had a post titled "The Supreme Court Takes Up a Major Gerrymandering Case."
Posted at 01:38 PM by Howard Bashman



"Mueller Tasks an Adviser With Getting Ahead of Pre-Emptive Pardons": Greg Farrell of Bloomberg News has an article that begins, "U.S. Special Counsel Robert Mueller has a distinctly modern problem. The president, judging by his tweets, could try to pardon people in his circle even before prosecutors charge anyone with a crime. Mueller's all-star team of prosecutors, with expertise in money laundering and foreign bribery, has an answer to that. He's Michael Dreeben, a bookish career government lawyer with more than 100 Supreme Court appearances under his belt."
Posted at 01:12 PM by Howard Bashman


"Justices seem divided in key case about partisan districts": Mark Sherman of The Associated Press has this report.

Andrew Chung of Reuters reports that "U.S. Supreme Court justices divided in major voting rights case."

Greg Stohr of Bloomberg News reports that "Gerrymandering Opponents Get Mixed Reception at Supreme Court."

And in commentary, online at ThinkProgress, Ian Millhiser has an essay titled "A majority of the Supreme Court appears ready to strike down a partisan gerrymander; And then there was hope."
Posted at 01:00 PM by Howard Bashman



"International Legal Personality of Corporations: How Investment Law Answers the Supreme Court Question in Jesner." Tara Van Ho has this post at "Just Security."
Posted at 09:37 AM by Howard Bashman


"Supreme Court to Hear Case on Wisconsin Voting Maps Warped by Politics": Adam Liptak of The New York Times has this report.

Robert Barnes of The Washington Post reports that "Supreme Court takes up Wisconsin as test in partisan gerrymandering claims."

And Brent Kendall of The Wall Street Journal reports that "Supreme Court Takes on the Partisan Gerrymander; Wisconsin case over voting districts could alter U.S. political landscape."
Posted at 09:34 AM by Howard Bashman



"As Neil Gorsuch's 2nd Supreme Court term starts, how far to the right will he go? The Colorado native and Donald Trump pick must help settle debates that include a Lakewood case about a same-sex wedding cake": Mark K. Matthews of The Denver Post has this report.
Posted at 08:14 AM by Howard Bashman


"The Supreme Court's Blockbuster Term: Get ready for the landmark decisions to start rolling in." Law professor Richard Primus has this essay online at Politico Magazine.
Posted at 08:11 AM by Howard Bashman


"Supreme Court's new term: Surveillance, hacking, sports betting -- and cake, too; 'The Court is now sitting' -- with 100% more Gorsuch and plenty of tech questions ahead." David Kravets of Ars Technica has this report.
Posted at 08:09 AM by Howard Bashman


"Supreme Court To Weigh In On Extreme Partisan Gerrymandering": Nina Totenberg had this audio segment on today's broadcast of NPR's "Morning Edition."

And online at Slate, Perry Grossman and Dahlia Lithwick have a jurisprudence essay titled "The Perfect Redistricting Case: Anthony Kennedy said he needed to see a particular set of facts to kill partisan gerrymandering; Gill v. Whitford has them all."
Posted at 08:07 AM by Howard Bashman



"Supreme Court Divided on Arbitration for Workplace Cases": Adam Liptak has this article in today's edition of The New York Times.

In today's edition of The Washington Post, Robert Barnes has an article headlined "Supreme Court begins new term with case on whether workers can be forced into individual arbitration."

David G. Savage of The Los Angeles Times reports that "Supreme Court justices clash over whether workers can join together to fight a company policy."

And Richard Wolf of USA Today reports that "Supreme Court opens 2017 term divided on workers' rights."
Posted at 08:04 AM by Howard Bashman



Monday, October 2, 2017

"Federal judge rules cross on Lehigh County seal is unconstitutional": Tom Shortell of The Morning Call of Allentown, Pennsylvania has this report.

And Kurt Bresswein of The Express-Times of Easton, Pennsylvania has an article headlined "Why a federal judge ruled Lehigh County's seal unconstitutional."

You can access last Thursday's ruling of the U.S. District Court for the Eastern District of Pennsylvania at this link (via "Religion Clause").
Posted at 10:58 PM by Howard Bashman



"Immigrant detainees should be offered affordable bond for release, 9th Circuit says": Maura Dolan of The Los Angeles Times has this report.

And Bob Egelko of The San Francisco Chronicle reports that "Court eases bail rules for detained immigrants."

You can access today's ruling of a partially divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 10:38 PM by Howard Bashman



"Court backs hovercraft ban in Alaska's national preserves": Dan Joling of The Associated Press has this report on a ruling that the U.S. Court of Appeals for the Ninth Circuit issued today.
Posted at 10:30 PM by Howard Bashman


"5th Circuit: Trust government, not juries, to decide if feds have been defrauded." Alison Frankel's "On the Case" from Thomson Reuters News & Insight has this post.
Posted at 08:26 PM by Howard Bashman


In the October 9, 2017 issue of The New Yorker: Jill Lepore has a Comment titled "Flip-Flopping on Free Speech: The fight for the First Amendment, on campuses and football fields, from the sixties to today."

Kelefa Sanneh has a Critic at Large essay titled "The Limits of 'Diversity': Where affirmative action was about compensatory justice, diversity is meant to be a shared benefit; But does the rationale carry weight?"

And Rachel Aviv has an article headlined "How the Elderly Lose Their Rights: Guardians can sell the assets and control the lives of senior citizens without their consent -- and reap a profit from it."
Posted at 05:16 PM by Howard Bashman



"2017 Georgetown Law Supreme Court Institute Preview": Georgetown Law has posted this video on YouTube.
Posted at 03:54 PM by Howard Bashman


"Stage Is Set for Some Drama at Supreme Court; A decision on the constitutionality of political gerrymandering could shake Capitol Hill; Here are some other cases to watch": Law professor Noah Feldman has this essay online at Bloomberg View, along with an essay titled "Aging Justices Deserve Better Than a Death Watch; Term limits or a mandatory retirement age would restore some dignity, but would require a constitutional amendment."
Posted at 02:15 PM by Howard Bashman


"U.S. top court divided over curbing workers' class-action suits": Lawrence Hurley of Reuters has this report.

Greg Stohr of Bloomberg News reports that "Supreme Court Justices Suggest They'll Split on Workers' Class-Action Rights."

And Josh Gerstein of Politico.com reports that "Supreme Court opens term with fight over worker rights; Court appears to lean toward firms who block joint legal action by employees."
Posted at 01:33 PM by Howard Bashman



"Prof. Stephanos Bibas -- Nominee to the U.S. Court of Appeals for the Third Circuit": Harsh Voruganti has this post at his blog, "The Vetting Room."
Posted at 12:02 PM by Howard Bashman


"A Republican Justice Settles In as GOP Cheers": Kenneth Jost has this post at his blog, "Jost on Justice."
Posted at 11:58 AM by Howard Bashman


"Supreme Court kicks off blockbuster term: Cases to watch." Ariane de Vogue of CNN.com has this report.
Posted at 11:56 AM by Howard Bashman


"Justice Antonin Scalia speaks": CBS Sunday Morning has posted on YouTube this video from yesterday's broadcast.
Posted at 10:42 AM by Howard Bashman


Access today's Order List of the U.S. Supreme Court: At this link. The Court did not grant review in any new cases, but the Court did call for the views of the Solicitor General in three cases.
Posted at 09:33 AM by Howard Bashman


"OT2017 #1: 'A Very Nice Office.'" You can access today's new episode of the "First Mondays" podcast, featuring Ian Samuel and Dan Epps, via this link.
Posted at 09:28 AM by Howard Bashman


"ISPs want Supreme Court to kill Title II net neutrality rules now and forever; FCC may soon revoke net neutrality rules, but ISPs want immunity from regulation": Jon Brodkin of Ars Technica has this report.
Posted at 08:16 AM by Howard Bashman


"'Hamilton' Signature Clouds Trump Emoluments Clause Case": Patrick L. Gregory of Bloomberg BNA has this report.
Posted at 08:11 AM by Howard Bashman


"Gerrymandering, a Tradition as Old as the Republic, Faces a Reckoning; Supreme Court will hear arguments Tuesday on whether contorted voting maps drawn by both parties to cement power have finally gone too far": Brent Kendall and Jess Bravin of The Wall Street Journal have this report.

On yesterday's broadcast of NPR's "All Things Considered," Nina Totenberg had an audio segment titled "Supreme Court Prepares To Hear Gerrymandering Case."

And on yesterday's broadcast of NPR's "Weekend Edition Sunday," Shawn Johnson had an audio segment titled "How Redistricting Changed Wisconsin Politics."
Posted at 08:09 AM by Howard Bashman



Sunday, October 1, 2017

"Trinity Wins Reversal of $663 Million Guardrail Judgment": Margaret Cronin Fisk and Chris Dolmetsch of Bloomberg News have this report on a ruling that the U.S. Court of Appeals for the Fifth Circuit issued on Friday.
Posted at 10:54 PM by Howard Bashman


"Immunity for Officer Who Arrested 'Rail Fan' Divides Circuit": Josh Russell of Courthouse News Service has this report on a ruling that a divided three-judge panel of the U.S. Court of Appeals for the Second Circuit issued Friday.
Posted at 10:48 PM by Howard Bashman


"Supreme Court, spurred by Trump's lawyers, could achieve backdoor repeal of workers' rights laws": David G. Savage of The Los Angeles Times has this report.

And Lawrence Hurley and Robert Iafolla of Reuters report that "Supreme Court back to work with major employment dispute."
Posted at 10:24 PM by Howard Bashman



"Back at Full Strength, Supreme Court Faces a Momentous Term": Adam Liptak of The New York Times has this report.

Robert Barnes of The Washington Post has an article headlined "'It will be momentous': Supreme Court embarks on new term."

Greg Stohr of Bloomberg News has an article headlined "Here Are the Biggest Cases Coming Up at the Supreme Court This Term."

And Nina Totenberg of NPR reports that "Supreme Court To Open A Whirlwind Term."
Posted at 10:12 PM by Howard Bashman



"How a Wisconsin Case Before Justices Could Reshape Redistricting": Michael Wines of The New York Times has this report.
Posted at 09:02 PM by Howard Bashman


"Fast Out of the Gates (SCOTUS' October 2017 Oral Arguments)": Adam Feldman has this post at his "Empirical SCOTUS" blog.
Posted at 09:00 PM by Howard Bashman


"With blue slip, Bob Casey gives green light to Trump judicial nominee": Jonathan Tamari of The Philadelphia Inquirer has this report.
Posted at 08:56 PM by Howard Bashman






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