How Appealing


Friday, February 1, 2008

"Oregon court upholds award; State justices affirm a $79.5 million verdict against Philip Morris for a second time": Ashbel S. Green has this article, in which I am quoted, today in The Oregonian.
Posted at 07:50 AM by Howard Bashman




Friday, February 1, 2008

In commentary available online from FindLaw: Scott Gerber and Kevin Hawley have an essay entitled "Blame Canada: The Arguments For and Against Increasing Federal Judicial Salaries."

And Vikram David Amar has an essay entitled "The California Supreme Court's Decision on Whether an Employee Can Be Fired For Testing Positive for Off-the-Job, Doctor-Suggested Medical Use of Marijuana."
Posted at 07:44 AM by Howard Bashman




Friday, February 1, 2008

"Alito Stops Short of Thomas, Scalia in Abortion, Religion Cases": Greg Stohr of Bloomberg News provides this interesting report, based in part on Stohr's recent interview with Justice Samuel A. Alito, Jr.
Posted at 07:35 AM by Howard Bashman




Thursday, January 31, 2008

The U.S. Supreme Court's ruling in favor of Philip Morris in Philip Morris USA v. Williams may not have helped Philip Morris much in Oregon today, but the ruling did help Philip Morris in California yesterday: The new blog "California Punitive Damages" provides this post about a California Court of Appeal ruling, issued yesterday, that set aside a $28 million punitive damages award against Philip Morris based on the U.S. Supreme Court's February 2007 ruling in the case out of Oregon.

And an even more recent post at that blog opines that the result of today's Oregon Supreme Court decision against Philip Morris, holding under Oregon law that a partially valid proposed jury instruction can be rejected if the instruction is also partially invalid, would not be reached by a court that was applying California law.
Posted at 10:35 PM by Howard Bashman




Thursday, January 31, 2008

"Senate Panel Approves Judicial Pay Raise And Junkets Ban": Lawrence Hurley of The Daily Journal of California has this post at his "Washington Briefs" blog.
Posted at 10:20 PM by Howard Bashman




Thursday, January 31, 2008

"NJ Supreme Court justice Rivera-Soto sued": The Newark (N.J.) Star-Ledger provides a news update that begins, "A former star high school football player sued state Supreme Court Justice Roberto Rivera-Soto today, alleging the associate justice wielded the considerable prestige of his robe against him because of a running dispute on the gridiron with Rivera-Soto's son."

And The Associated Press reports that "Teen sues NJ Supreme Court justice over actions in dispute with son."
Posted at 07:55 PM by Howard Bashman




Thursday, January 31, 2008

"Ala. Inmate Wins Stay of Execution": The Associated Press provides this report.
Posted at 07:52 PM by Howard Bashman




Thursday, January 31, 2008

"A guide to 'Selyaisms'": Frederick A. Brodie, a former law clerk to First Circuit Judge Bruce M. Seyla, has this essay in the current issue of The National Law Journal.
Posted at 04:58 PM by Howard Bashman




Thursday, January 31, 2008

Next will the Sixth Circuit permit Tennessee to sue the North Carolina Valley Authority? Today, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit affirmed a federal district court's decision that refused to dismiss North Carolina's common-law nuisance action against the Tennessee Valley Authority. The lawsuit contends that the TVA's coal-fired power plants in Tennessee, Alabama, and Kentucky emit various pollutants that travel through the atmosphere into North Carolina, adversely impacting human health and environmental quality. You can access today's Fourth Circuit ruling at this link.
Posted at 04:55 PM by Howard Bashman




Thursday, January 31, 2008

If you don't want your children in kindergarten, first, or second grades to be exposed to books that favorably portray same-sex couples, then don't send your children to public school: So holds the U.S. Court of Appeals for the First Circuit in this ruling that a unanimous three-judge panel issued today.
Posted at 04:22 PM by Howard Bashman




Thursday, January 31, 2008

The cost to Philip Morris of trying to slant jury instructions too far in its favor -- $79.5 million in punitive damages: As I first noted in this post from this morning, today the Supreme Court of Oregon issued its ruling, on remand from the Supreme Court of the United States, in Williams v. Philip Morris Inc. Although Philip Morris had won before the U.S. Supreme Court, today's ruling by Oregon's highest court reinstates a jury's award of $79.5 million in punitive damages, on top of a compensatory damages award of $821,000, against Philip Morris and in favor of a cigarette smoker's widow. How could this be?

When Philip Morris most recently brought this case to the U.S. Supreme Court, the company asked the U.S. Supreme Court to consider two objections to the punitive damages award. First, Philip Morris advanced a procedural due process challenge, asserting that that a defendant's due process rights are violated if a jury assesses punitive damages to punish a defendant for having caused harm to persons other than the plaintiff. And second, Philip Morris advanced a substantive due process challenge, asserting that the punitive damages award was unconstitutionally excessive because, among other reasons, it was nearly one hundred times larger than the award of compensatory damages.

When the U.S. Supreme Court issued its 5-4 ruling in February 2007, the Court agreed with Philip Morris's procedural due process argument. The Court held that a defendant's due process rights are violated if a jury assesses punitive damages to punish a defendant for having caused harm to persons other than the plaintiff. As a result, the U.S. Supreme Court found it unnecessary to address the company's substantive due process challenge to the punitive damages award as unconstitutionally excessive.

Philip Morris had sought to preserve its procedural due process objection, which the U.S. Supreme Court recognized as meritorious, by means of a proposed jury instruction. Today, the Supreme Court of Oregon, acting on remand from the U.S. Supreme Court, held that the trial court properly refused to deliver to the jury Philip Morris's proposed jury instruction because it misstated Oregon's law of punitive damages in various other respects. Under Oregon law, a party has no right to have a trial court deliver its proposed jury instruction unless the instruction is entirely unobjectionable. Philip Morris's proposed jury instruction was far from entirely unobjectionable, according to Oregon's highest court, and therefore Philip Morris has no one to blame other than itself (and its trial lawyers) for failing to have its procedural due process rights vindicated in accordance with the U.S. Supreme Court's February 2007 ruling.

Let's assume, as is most likely the case, that today's Supreme Court of Oregon decision constitutes an adequate and independent state law ground that will prevent Philip Morris from benefiting from the U.S. Supreme Court's February 2007 procedural due process ruling in Philip Morris's favor. This still leaves the company with the ability to pursue its substantive due process challenge to the punitive damages award as unconstitutionally excessive. Remember that the U.S. Supreme Court had originally granted certiorari to review that question but then found it unnecessary to resolve.

For better or worse, today's Supreme Court of Oregon ruling has likely transformed this case into an unattractive vehicle for U.S. Supreme Court review on the substantive due process question of the unconstitutional excessiveness of punitive damages. My reasoning proceeds as follows. To determine whether a punitive damages award is unconstitutionally excessive, one must consider the evidence that was before the fact-finder. Here, due to Philip Morris's failure to tender a valid punitive damages instruction, Philip Morris has forfeited any ability to object to the jury's consideration, in assessing punitive damages, of the harm that Philip Morris caused to Oregon smokers other than the plaintiff. Determining whether this particular punitive damages award is unconstitutionally excessive will require the U.S. Supreme Court to weigh a type of evidence that, as a result of its earlier ruling in this very case, other juries deciding whether to award punitive damages won't ever be considering. Thus, a substantive due process ruling in this case would amount to little more than error correction and would be unlikely to result in a ruling of widespread application to other cases.

Even though this case may no longer present an attractive vehicle for examining the substantive due process limits of excessive punitive damages, Philip Morris can still hope that the U.S. Supreme Court, before it gets around to denying the company's forthcoming cert. petition, will decide or agree to decide another case presenting a substantive due process challenge to excessive punitive damages. Unfortunately for Philip Morris, the U.S. Supreme Court turned down this issue in the Exxon Valdez case.

In closing, to return to the title of this post, it is worth emphasizing that the reason Philip Morris failed to benefit from the U.S. Supreme Court's punitive damages ruling in its favor in this very case is that the trial lawyers for Philip Morris tried to slant their proposed punitive damages instruction too far in defendant's favor. Had the company's proposed punitive damages instruction faithfully tracked the applicable Oregon statute, today's Supreme Court of Oregon ruling would have likely set aside the jury's punitive damages award and granted a new trial. So, to you young litigation associates pondering how far you should twist the law in your client's favor in proposed jury instructions, remember: attempting to gain your client some subtle, modest advantage could backfire and someday cause your client to lose its ability to overturn a nearly $80 million punitive damages award.

Elsewhere, Ashbel S. Green of The Oregonian (with whom I had the pleasure of speaking about this case a bit earlier today) has a news update headlined "Oregon Supreme Court backs $79.5 million award; The judgment against Philip Morris had been overturned twice."

The Associated Press reports that "Oregon high court reaffirms decision in Philip Morris case."

At "The BLT: The Blog of Legal Times," Tony Mauro has a post titled "Oregon Supreme Court to U.S. Supreme Court: Thanks, But No Thanks."

And Eric Turkewitz, at the "New York Personal Injury Law Blog," has a post titled "Philip Morris $79.5M Punitive Award Reinstated By Oregon High Court."
Posted at 03:57 PM by Howard Bashman




Thursday, January 31, 2008

Ninth Circuit grants rehearing en banc to consider the constitutionality of a school's strip-search of a 13-year-old female honor roll student with no prior disciplinary problems based on the allegation she had given a classmate a prescription-strength ibuprofen tablet: You can access at this link today's order granting rehearing en banc.

A divided three-judge panel upheld the constitutionality of the search in a decision issued on September 21, 2007. My coverage of that decision appeared at this link.
Posted at 02:23 PM by Howard Bashman




Thursday, January 31, 2008

The Associated Press is reporting: Now available online are articles headlined "Ala. Execution Could Be First in Months" and "Court Rules for TiVo in Patent Dispute."
Posted at 02:12 PM by Howard Bashman




Thursday, January 31, 2008

Pending amendments to the Federal Rules of Appellate Procedure -- who has commented thus far? Yesterday, I had this rather lengthy post describing the proposed amendments -- now up for public comment -- to the Federal Rules of Appellate Procedure. Next Monday's installment of my "On Appeal" column for law.com will also discuss these proposed amendments.

My post from yesterday described how to submit public comments, but I neglected to note that you can access online, via this link, the comments received thus far pertaining to the proposed FRAP amendments. (Comments on amendments to the other federal procedural rules now up for discussion can be accessed via this link.) Of the handful of comments received thus far on the proposed FRAP amendments, I nominate the comments of Seventh Circuit Chief Judge Frank H. Easterbrook as most entertaining.
Posted at 12:20 PM by Howard Bashman




Thursday, January 31, 2008

U.S. Court of Appeals for the Federal Circuit affirms $74 million patent infringement award in favor of TiVo, Inc. and against EchoStar: If the TiVo smiley face logo seems a bit happier than usual, it may be as a result of this ruling issued today.
Posted at 12:10 PM by Howard Bashman




Thursday, January 31, 2008

"Court upholds $79.5 million smoker verdict": Ashbel S. Green of The Oregonian provides this news update. My most recent coverage appears immediately below.
Posted at 12:00 PM by Howard Bashman




Thursday, January 31, 2008

On remand from the U.S. Supreme Court, the Supreme Court of Oregon once again upholds a jury's award of $79.5 million in punitive damages, on top of a compensatory damages award of $821,000, against Philip Morris and in favor of a cigarette smoker's widow: You can access today's ruling at this link. It is inevitable that Philip Morris will again seek U.S. Supreme Court review.

The U.S. Supreme Court's February 2007 ruling in the case can be accessed here. For the record, my prediction of what Oregon's highest court would do today was wrong.
Posted at 11:32 AM by Howard Bashman




Thursday, January 31, 2008

"Thank You. Now Go to Hell. Mukasey stonewalls Senate Democrats on water-boarding, and practically everything else." Dahlia Lithwick has this dispatch online at Slate.
Posted at 09:20 AM by Howard Bashman




Thursday, January 31, 2008

"Abortion provider must turn over files; Opponents hope the patient records will lead to additional charges against the Kansas doctor who performs late-term procedures": This article appears today in The Los Angeles Times.

The Wichita Eagle reports today that "Tiller must turn over records to grand jury."

And The Washington Times reports that "Clinic must release abortion data."
Posted at 09:10 AM by Howard Bashman




Thursday, January 31, 2008

"Mukasey Will Not Rule Out Waterboarding": The New York Times contains this article today, along with an editorial entitled "A Disappointing Debut."

The Washington Post reports today that "Mukasey Hints at Wider CIA Probe."

The Los Angeles Times reports that "Democrats decry Mukasey's silence on waterboarding; The Senate Judiciary Committee members say the attorney general's refusal to give a legal opinion is an effort to protect the Bush administration."

The Hill reports that "Democrats grill Mukasey."

The Washington Times reports that "Mukasey still mum on waterboarding."

The Wall Street Journal contains an article headlined "Three Young Men Try Waterboarding And Tell the Tale" and an editorial entitled "'Waterboarding' Mukasey."

And from National Public Radio, today's broadcast of "Morning Edition" contained an audio segment entitled "Mukasey, Senators Revisit Torture Debate." Yesterday evening's broadcast of "All Things Considered" contained an audio segment entitled "Mukasey Dodges Senate Panel's Torture Questions." And yesterday's broadcast of "Day to Day" contained an audio segment entitled "What to Expect from Mukasey" featuring Dahlia Lithwick. RealPlayer is required to launch these audio segments.

C-SPAN has made available for on-demand viewing in two parts (morning session and afternoon session) (RealPlayer required) the Attorney General's testimony yesterday before the Senate Judiciary Committee.
Posted at 08:55 AM by Howard Bashman




Thursday, January 31, 2008

"Better Pay for Federal Judges: To ensure a good deal for the public, the new pay package should include an overdue tightening of the gift rules to bar corporate-sponsored junkets." This editorial appears today in The New York Times.
Posted at 08:34 AM by Howard Bashman




Thursday, January 31, 2008

"Law Without Suits: New Hires Flout Tradition; Young Attorneys' Casual Attire Draws Criticism at Big Firms; A Crackdown on Ugg Boots." The Wall Street Journal contains this article today.
Posted at 08:27 AM by Howard Bashman




Thursday, January 31, 2008

"Snipes' jury still deliberating": This article appears today in The Ocala Star-Banner.
Posted at 08:10 AM by Howard Bashman




Thursday, January 31, 2008

"Nichols case needs a judge": Today's edition of The Atlanta Journal-Constitution contains an article that begins, "The judge who will appoint a replacement for Superior Court Judge Hilton Fuller, who resigned Wednesday from the beleaguered case of courthouse rampage suspect Brian Nichols, said he hopes to name a jurist within days but may have trouble finding someone willing to take the case." The newspaper also reports today that "Nichols judge both praised, faulted."

The New York Times reports today that "Judge in Courthouse Shooting Case Steps Down."

The Los Angeles Times reports that "Quote prompts judge to quit case; After being quoted in a magazine article as saying of defendant, 'Everyone in the world knows he did it,' a jurist recuses himself from a murder trial."

And the Fulton County Daily Report contains an article headlined "Judge Recuses From Courthouse Shooting Trial Following Remarks in Magazine Article."

For more on why the judge stepped down from the case, see this earlier post from yesterday.
Posted at 08:05 AM by Howard Bashman




Thursday, January 31, 2008

"More Wecht staffers testify about go-fer work": This article appears today in The Pittsburgh Post-Gazette.

And today in The Pittsburgh Tribune-Review, Jason Cato reports that "Errand kept body unretrieved, witness says."
Posted at 08:03 AM by Howard Bashman




Thursday, January 31, 2008

"Signs of trouble in Medina finances; Records show judge tapped all his home's equity": The Houston Chronicle today contains an article that begins, "An investigation into a suspicious fire that destroyed the home of Texas Supreme Court Justice David Medina brought unprecedented scrutiny of his life: from cell phone calls to bank records to personal relationships to the whereabouts of family members on the night in question."
Posted at 07:58 AM by Howard Bashman




Thursday, January 31, 2008

"An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court": Jason J. Czarnezki, William K. Ford, and Lori A. Ringhand have posted this paper (abstract with links for download) at SSRN (via "Legal Theory Blog").

The article's abstract begins, "Despite the high degree of interest generated by Supreme Court confirmation hearings, surprisingly little work has been done comparing the statements made by nominees at their confirmation hearings with their voting behavior once on the Supreme Court. This paper begins to explore this potentially rich area by examining confirmation statements made by nominees regarding three different methods of constitutional interpretation."
Posted at 07:50 AM by Howard Bashman




Thursday, January 31, 2008

"Barack Obama, Hillary Clinton, and the Debate Over How Much Supreme Court Decisions Truly Matter": Edward Lazarus has this essay online at FindLaw.
Posted at 07:30 AM by Howard Bashman




Wednesday, January 30, 2008

"Jury to Start Deliberations in Wesley Snipes Tax Case": This article appears today in The New York Times.

And The Ocala Star-Banner reports today that "Wesley Snipes' fate now in hands of jury; Actor says 'I look forward to walking out of here.'" The newspaper also provides an update headlined "Jury asks judge in Snipes trial: What does 'conspiracy' mean?"
Posted at 11:54 PM by Howard Bashman




Wednesday, January 30, 2008

"Thomas Barr, Top Lawyer in I.B.M. Case, Dies at 77": Adam Liptak is the author of this obituary that appears today in The New York Times.
Posted at 11:50 PM by Howard Bashman




Wednesday, January 30, 2008

"Court Hears Appeal in Iraq Ambush Case": The Associated Press provides a report that begins, "Relatives of civilian truck drivers killed in Iraq emerged from a closed-door hearing Wednesday hopeful that a federal appeals court would resurrect their cases against a military contractor." Today's oral argument before the U.S. Court of Appeals for the Fifth Circuit was not open to the public or the press.
Posted at 11:45 PM by Howard Bashman




Wednesday, January 30, 2008

"Oregon high court to rule (again) on smoker-death case": Ashbel S. Green of The Oregonian provides a news update that begins, "The Oregon Supreme will decide tomorrow what to do with a $79.5 million punitive damage award against Philip Morris that has twice been overturned by the U.S. Supreme Court."

The Supreme Court of Oregon's ruling should become available online via this link by noon tomorrow.

You can access the U.S. Supreme Court's February 2007 ruling in the case at this link. Shortly after that ruling issued, law.com published an installment of my "On Appeal" column headlined "'Philip Morris' Punitives Ruling May Contain Silver Lining for Plaintiffs." It is unlikely that the Philip Morris ruling will contain a silver lining for this particular plaintiff, however. Rather, there's a strong likelihood that she will need to present her punitive damages claim to a new jury, which will not be allowed to consider one of the key arguments that likely caused the first jury to award $79.5 million in punitive damages on top of a compensatory damages award of $821,000.
Posted at 08:14 PM by Howard Bashman




Wednesday, January 30, 2008

"Federal recusal case: $160,000 and 'the meter still is running.'" The West Virginia Record provides a report that begins, "The state Supreme Court of Appeals has spent more than $160,000 on a federal court case Massey Energy brought against it over the way justices recuse themselves from cases."
Posted at 07:54 PM by Howard Bashman




Wednesday, January 30, 2008

"Retired US worker becomes champion of women's fair pay": Agence France Presse has a report that begins, "Ten years ago, someone slipped an anonymous note into Lilly Ledbetter's locker and the tire factory worker learned that she was being paid less than her male counterparts who were doing the same work. Ledbetter took her case all the way to the US Supreme Court, but never received compensation. Today, she is leading the charge to change the laws that allow men to be paid more than women who do the same work."

And The New York Times today contains an editorial entitled "Restoring Civil Rights."
Posted at 07:52 PM by Howard Bashman




Wednesday, January 30, 2008

"Law lecture features Supreme Court’s Breyer": Arizona State University's Sandra Day O'Connor College of Law issued this news release today.
Posted at 07:50 PM by Howard Bashman



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