How Appealing


Wednesday, February 6, 2008

"Mukasey Wants to Block Crack Releases": Lara Jakes Jordan of The Associated Press provides a report that begins, "Attorney General Michael Mukasey wants Congress to act within weeks to prevent the release of thousands of violent criminals from federal prison under new crack cocaine sentencing rules."
Posted at 04:25 PM by Howard Bashman




Wednesday, February 6, 2008

When should an appellate judge recuse from deciding an appeal based on having served as a judge on the court that decided the case below? In early January 2008, two new Justices joined the Supreme Court of Pennsylvania from the Superior Court of Pennsylvania, which is one of the Commonwealth's two intermediate appellate courts. Even more recently, Pennsylvania Governor Edward G. Rendell nominated the former President Judge of the Commonwealth Court of Pennsylvania, the state's other intermediate appellate court, to fill the third and final vacancy on Pennsylvania's highest court.

Some legislators who will be able to vote on whether to confirm Governor Rendell's nominee have questioned the nomination on the ground that the nominee, having served on the Commonwealth Court, will need to recuse himself from too large a number of cases if allowed to serve on the Pa. Supreme Court. Ironically, during the campaign that culminated in elections to the Pa. Supreme Court in November 2007, I did not hear anyone oppose the three candidates from the Pa. Superior Court on the ground that they would need to recuse from too many cases if elected to Pennsylvania's highest court.

I think there is general agreement that if a judge is promoted from a trial court to an intermediate appellate court, that judge should not hear and decide appeals from orders that he or she entered as a trial judge. [Update: Indeed, as a federal appellate judge who emailed in response to this post observed, a federal statute titled "Disqualification of trial judge to hear appeal" states that "No judge shall hear or determine an appeal from the decision of a case or issue tried by him."]

If a judge is promoted from an intermediate appellate court to the highest court of a jurisdiction, however, the recusal inquiry becomes more complicated. I think there would continue to be general agreement that the judge, while serving on the jurisdiction's highest court, should not preside over appeals from rulings issued by panels on which he or she served while sitting on the intermediate appellate court.

But what if the judge in question did not serve on the three-judge intermediate appellate court panel that issued the decision under review but had the ability to vote for rehearing en banc when the losing party sought that relief before the intermediate appellate court? If the order denying rehearing en banc simply said that the requested relief was denied without identifying how any of the judges on the en banc court voted, I would not be of the view that a judge who merely considered a request for en banc rehearing while serving on the intermediate appellate court should be recused from hearing and deciding the case on the jurisdiction's highest court.

Some intermediate appellate courts, such as the Pa. Commonwealth Court and the U.S. Court of Appeals for the Third Circuit, circulate decisions that are proposed to be issued as precedential opinions to all active non-panel judges before the decisions are officially issued. This pre-release circulation allows non-panel judges to flag any inconsistencies with the court's earlier precedential rulings and other governing law, and also to call for pre-decision rehearing en banc in the event the proposed decision is objectionable enough. In such a jurisdiction, a non-panel judge has the ability to become intricately involved in a decision, totally hidden from the public's view. But I would not rely on that possibility as a reason to advocate that a judge who is promoted to the jurisdiction's highest court must recuse from considering any cases that resulted in precedential rulings of the intermediate appellate court before his or her promotion.

If readers of this blog have views on these issues, which I plan to address in an forthcoming installment of my monthly "Upon Further Review" column for The Legal Intelligencer of Philadelphia, I welcome hearing your thoughts via email.

It is also noteworthy that neither the Pa. Supreme Court nor the U.S. Supreme Court has any provision to allow temporary appointments from other courts to fill vacancies on a case-by-case basis in the event of recusals. By contrast, the highest courts of many other jurisdictions -- California and West Virginia come to mind most quickly -- maintain a full complement of judges even in cases where some members of the court have recused by replacing the recused judges with judges from lower courts. Is it better to have a system where recused judges of a jurisdiction's highest court can be replaced by judges serving on an intermediate appellate court? Views on this subject are also welcome via email. Thanks!
Posted at 04:20 PM by Howard Bashman




Wednesday, February 6, 2008

"Whatever Happened to 'One Person, One Vote'? Why the crazy caucus and primary rules are legal." Law Professor Richard L. Hasen -- author of the "Election Law" blog -- has this jurisprudence essay online at Slate.
Posted at 03:11 PM by Howard Bashman




Wednesday, February 6, 2008

"Judicial-Pay Bill in Jeopardy?" Ed Whelan has this post today at National Review Online's "Bench Memos" blog.

On Monday night, I linked here to Lawrence Hurley's article headlined "Senate's Effort to Ban Junkets Could Stall Judicial Pay Raises" published that day in The Daily Journal of California.
Posted at 01:50 PM by Howard Bashman




Wednesday, February 6, 2008

Unanimous three-judge Seventh Circuit panel rejects constitutional challenges to provisions of the Adam Walsh Child Protection and Safety Act that limit a criminal defendant's access to alleged child pornography in a child pornography prosecution: Chief Judge Frank H. Easterbrook wrote today's ruling. This decision represents the first time that a federal appellate court has addressed the constitutionality of these particular statutory provisions, which were enacted in July of 2006.

To access this blog's earlier posts on this subject, click here and here.
Posted at 01:44 PM by Howard Bashman




Wednesday, February 6, 2008

"Court disbars two attorneys involved in Demoulas family feud": The Boston Globe provides a news update that begins, "Two lawyers were disbarred today by the state's highest court, which ruled that the attorneys violated ethical rules when they tried to find evidence of bias against a former Superior Court judge who was then presiding over the bitter and costly family fight for control of the billion-dollar Demoulas supermarket company. In bluntly written rulings, Supreme Judicial Court Chief Justice Margaret Marshall said the actions of former federal prosecutor Gary C. Crossen and Boston attorney Kevin P. Curry were unprecedented and were also clearly improper and unethical. The attorneys lured a law clerk of then Superior Court Judge Maria Lopez to Canada and New York with a false promise of a job."

And Massachusetts Lawyers Weekly reports that "Crossen, Curry disbarred by SJC."

Today's rulings of the Supreme Judicial Court of Massachusetts issued in In re Kevin P. Curry and In re Gary C. Crossen.
Posted at 01:30 PM by Howard Bashman




Wednesday, February 6, 2008

What makes metal baseball bats so dangerous? The U.S. Court of Appeals for the Federal Circuit issued this decision today.
Posted at 12:00 PM by Howard Bashman




Wednesday, February 6, 2008

In federal death penalty trial of defendant charged with two counts of murder committed while engaged in drug trafficking, the federal district court erred in precluding the prosecution from introducing evidence at the guilt phase related to post-mortem dismemberment: You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 11:25 AM by Howard Bashman




Wednesday, February 6, 2008

Access today's nude dancing decision of the U.S. Court of Appeals for the Sixth Circuit: It's available online this link. Courtesy of Kenton County, Kentucky.
Posted at 10:55 AM by Howard Bashman




Wednesday, February 6, 2008

"Abortion law challenge still in limbo": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "It's been more than three years since California challenged a federal anti-abortion law that threatens the state with huge financial penalties, and more than a year since the opposing sides argued before a federal judge in San Francisco. All that either side has heard since then is a question from the judge about whether the law has expired."
Posted at 09:07 AM by Howard Bashman




Wednesday, February 6, 2008

"Prosecutor stresses Wecht performed private morgue work": Jason Cato has this article today in The Pittsburgh Tribune-Review.
Posted at 09:05 AM by Howard Bashman




Wednesday, February 6, 2008

"Georgia Loses Federal Case in a Dispute About Water": The New York Times contains this article today.

And today's edition of The Atlanta Journal-Constitution contains an article headlined "Georgia's Water Crisis: 'Big loser...is metro Atlanta'; Court declares 2003 pact null without OK."

You can access yesterday's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 09:00 AM by Howard Bashman




Wednesday, February 6, 2008

"Three were waterboarded, CIA chief confirms; Director Michael V. Hayden says the Al Qaeda suspects were the only ones subjected to the interrogation method; The CIA needs access to such 'enhanced' techniques, he argues to a Senate panel": This article appears today in The Los Angeles Times.

The New York Times reports today that "Intelligence Chief Cites Qaeda Threat to U.S."

And The Wall Street Journal contains an editorial entitled "Tall Torture Tales."
Posted at 08:55 AM by Howard Bashman




Wednesday, February 6, 2008

"Schools' interim desegregation plan challenged": The Louisville Courier-Journal today contains an article that begins, "The Louisville lawyer who successfully challenged Jefferson County's school desegregation policy is now challenging the district's interim plan, saying it illegally uses race to assign students. Attorney Ted Gordon filed a motion yesterday in U.S. District Court in Louisville, asking Judge John Heyburn II to review the temporary plan adopted last week for the 2008-09 school year."
Posted at 08:47 AM by Howard Bashman




Wednesday, February 6, 2008

"Judge dismisses felony charges against 'gap kids'": Today in The Providence (R.I.) Journal, Edward Fitzpatrick has an article that begins, "A judge yesterday dismissed felony charges filed against 115 teenagers during the 130 days when the state prosecuted 17-year-olds as adults, but he refused to dismiss the second-degree murder indictment of the state's most high-profile 'gap kid,' Barrington’s Ryan Greenberg."

And The New York Times reports today that "Judge Rules to Dismiss Cases of 17-Year-Olds Seen as Adults."
Posted at 08:40 AM by Howard Bashman




Wednesday, February 6, 2008

"A Shameful Record": The New York Times today contains an editorial that begins, "The United States leads the world in a shameful category: the number of people it has locked up for life without parole for crimes committed by juveniles."
Posted at 08:32 AM by Howard Bashman




Wednesday, February 6, 2008

"The Transylvania University Library heist -- Panel: Book thieves deserve more time." This article appears today in The Lexington Herald-Leader.

My earlier coverage of yesterday's Sixth Circuit ruling appears at this link.
Posted at 08:30 AM by Howard Bashman




Wednesday, February 6, 2008

Available online from law.com: An article reports that "Calif. High Court's Leanings Hard to See in City of Hope Patent Case; Justices strongly question both sides in highly watched patent case."

In other news, "New Judge, but Same Obstacles, in Ga. Courthouse Shooting Case; 'The change in judges doesn't make the problems go away,' notes a former judge."

Amaris Elliott-Engel reports that "Question of Law on Bystander Recovery Sent to Pa. High Court."

And in news from New York, "Second Suit Proceeds Seeking Pay Raise for Judges; Possible 'separation of powers' violation."
Posted at 08:11 AM by Howard Bashman




Wednesday, February 6, 2008

"Court panel grills lawyers over firing of former Khalil Gibran principal": The New York Daily News today contains an article that begins, "A federal appeals court panel Tuesday grilled city lawyers over the way officials handled the ouster of the principal of a controversial Arabic-language school."

And The Associated Press provides a report headlined "Judges: City overreacted over Muslim principal."
Posted at 08:07 AM by Howard Bashman




Wednesday, February 6, 2008

"Breyer in isles for forum": This article appears today in The Honolulu Star-Bulletin.

And The Honolulu Advertiser reports today that "U.S. justice urges Islanders to study the Constitution." You can access a related photo gallery at this link.
Posted at 07:50 AM by Howard Bashman




Wednesday, February 6, 2008

"A New York Appellate Court Gives Effect to a Canadian Same-Sex Marriage: Using Traditional Rules to Validate a Non-Traditional Marriage." Joanna Grossman has this essay online today at FindLaw.
Posted at 07:44 AM by Howard Bashman




Tuesday, February 5, 2008

"Fraud claim heads to high court; Definition of false claim at issue": The Cincinnati Enquirer today contains an article that begins, "A federal whistle-blower lawsuit that originated in Cincinnati more than a decade ago will be argued Feb. 26 before the U.S. Supreme Court. The case has implications for everything from defense contracts to health care. It's not the first time a Cincinnati case has made it to the nation's highest court. But it's only the sixth time in the 148-year history of the federal False Claims Act that the Supreme Court has heard a case dealing with the arcane statute - a Civil War-era law allowing citizens to bring government fraud suits and collect a bounty if successful."
Posted at 10:47 PM by Howard Bashman




Tuesday, February 5, 2008

"Two local lawyers say arguing before high court was career highlight": The Kansas City Star today contains an article that begins, "Baseball players strive to play in the World Series, while singers dream of performing in Carnegie Hall. For attorneys, few career achievements can rival arguing a case before the U.S. Supreme Court."
Posted at 10:45 PM by Howard Bashman




Tuesday, February 5, 2008

"A Second Case on Detainees Complicates Supreme Court Deliberations": Linda Greenhouse will have this news analysis Wednesday in The New York Times.
Posted at 10:34 PM by Howard Bashman




Tuesday, February 5, 2008

"Louisville lawyer challenges interim desegregation plan": The Louisville Courier-Journal provides a news update that begins, "Louisville lawyer Ted Gordon is asking a federal judge to review an interim desegregation plan that Jefferson County Public Schools has adopted for the coming school year, saying the plan violates the U.S. Supreme Court’s ruling limiting the use of race."
Posted at 10:28 PM by Howard Bashman




Tuesday, February 5, 2008

"Appeals court overturns ruling in Shaler slayings": Jason Cato of The Pittsburgh Tribune-Review has a news update that begins, "A federal appeals court today gave the mother of a slain Carnegie man another shot at suing Allegheny County and seven 911 call center employees for failing to protect her son."

My earlier coverage of today's Third Circuit ruling appears at this link.
Posted at 10:27 PM by Howard Bashman




Tuesday, February 5, 2008

"Appeals court: Transy library thieves should receive more prison time." The Lexington Herald-Leader provides this news update.

My earlier coverage of today's Sixth Circuit ruling appears at this link.
Posted at 10:24 PM by Howard Bashman




Tuesday, February 5, 2008

"Doctor describes morgue work under Wecht": Jason Cato has this article today in The Pittsburgh Tribune-Review.

And today's edition of The Pittsburgh Post-Gazette contains an article headlined "Witness: Private autopsies done on county time."
Posted at 10:20 PM by Howard Bashman




Tuesday, February 5, 2008

"Georgia loses major ruling on rights to Lanier water": The Atlanta Journal-Constitution provides this news update.

And The Associated Press reports that "Georgia Loses Major Water Ruling."

You can access today's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 04:50 PM by Howard Bashman




Tuesday, February 5, 2008

In this afternoon's FedEx delivery: The Justice Louis Dembitz Brandeis bobblehead doll. He's riding on the Erie Railroad, and he's carrying a green bag.
Posted at 03:20 PM by Howard Bashman




Tuesday, February 5, 2008

"Moussaoui Judge: Terror Trials Work." The Associated Press on Sunday had a report that begins, "The judge who presided over Zacarias Moussaoui's trial questioned the government's decision to seek a death sentence against the Sept. 11 conspirator, and offered a strong defense of federal courts' ability to handle terror trials. U.S. District Judge Leonie Brinkema said in a speech Friday at the American University law school that the government's decision to seek a death sentence against Moussaoui appeared to be politically motivated, and that the zealous pursuit of a death sentence opened up numerous issues of exposing classified information that otherwise could have been avoided."

I see from this post by Marty Lederman at "Balkinization" that you can access a podcast of Judge Brinkema remarks via this link (10.2MB mp3 audio file). A media advisory from American University Washington College of Law, headlined "Moussaoui Trial Judge Brinkema Keynotes AU Law/Brookings Conference," advised that "For security reasons, absolutely no photography or filming of Judge Brinkema will be permitted." Sketches of Judge Brinkema, however, appear to be allowed.
Posted at 03:10 PM by Howard Bashman




Tuesday, February 5, 2008

"Kan. Court Blocks Abortion Grand Jury": The Associated Press provides a report that begins, "The Kansas Supreme Court on Tuesday temporarily blocked a grand jury from obtaining patient records from a physician who is one of the nation's few late-term abortion providers. The grand jury is investigating whether Dr. George Tiller has broken Kansas laws restricting abortion, as many abortion opponents allege. The grand jury subpoenaed the medical files of about 2,000 women, including some who decided against having abortions."

You can access today's order of the Supreme Court of Kansas at this link.
Posted at 02:30 PM by Howard Bashman




Tuesday, February 5, 2008

Not your typical "state created danger" case involving a 911 call center: In this decision that the U.S. Court of Appeals for the Third Circuit issued today, a 911 call center dispatcher used the databases available to him to track down the whereabouts of his former girlfriend and the former girlfriend's new boyfriend. After being fired from the 911 call center, the former dispatcher then used that information to kill his ex-girlfriend and her new boyfriend. Today's ruling contains an extensive discussion of the application of the pleading standards set forth in Bell Atlantic Corp. v. Twombly outside of the antitrust context.
Posted at 02:15 PM by Howard Bashman




Tuesday, February 5, 2008

Unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit holds that the Illinois offense of "aggravated battery of a peace officer" is not a "crime of moral turpitude" under federal immigration law: And chances are quite good that, after reading today's opinion by Circuit Judge Ann Claire Williams, you will agree with the outcome. Also available for download is the oral argument audio (4.43MB mp3 file).
Posted at 02:02 PM by Howard Bashman




Tuesday, February 5, 2008

More reasons why you shouldn't steal rare books from Transylvania University: Even if you aren't attacked by vampires, you could still get caught and end up serving time in federal prison. Consider the case of four college buddies who hatched what must have seemed like the perfect plan -- in a world where truth is stranger than fiction. In any event, today's ruling of the U.S. Court of Appeals for the Sixth Circuit demonstrates that nothing good ever comes of attacking a librarian with a stun pen.

Update: An article about the case, published in the November 12, 2007 issue of The Lexington Herald-Leader, begins: "The scheme was hatched in a haze of marijuana smoke, with inspiration from popular heist flicks. And the motivation stemmed from a desire to escape the 'mundane, nickel-and-dime existence' of suburbia, according to a new article in Vanity Fair about one of Lexington's most notorious crimes." Unfortunately, Vanity Fair magazine has not made the article readily available online.
Posted at 12:14 PM by Howard Bashman



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tonypierce.com + busblog

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The Volokh Conspiracy

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