How Appealing


Monday, July 16, 2007

Majority on en banc U.S. Court of Appeals for the Second Circuit overturns Board of Immigration Appeals decision holding that an individual whose spouse has been forced to abort a pregnancy, undergo involuntary sterilization, or been persecuted under a coercive population control program automatically qualifies for asylum as a "refugee": You can access today's 86-page ruling at this link. The vote to invalidate that BIA holding as contrary to statute was 8-4. Even before today's ruling, a circuit split existed over how to construe the statute in question, and today's ruling greatly increases the chance that the U.S. Supreme Court will wish to review this issue.

Today's decision may strike some as an unlikely vehicle for the holding I mention in the title to this post, because the petitioners seeking asylum are the unmarried partners of individuals allegedly victimized by China's coercive family planning policies. However, if even husbands are not automatically entitled to asylum, it would seem to follow that neither are unmarried partners.

Update: In other coverage of this ruling, The Associated Press reports that "Asylum Ruling Leaves Out Chinese Spouses."
Posted at 12:28 PM by Howard Bashman




Monday, July 16, 2007

"Full Constitutional Protection for Some, but No Privacy for the Poor": You can access today's installment of Adam Liptak's "Sidebar" column at this link (TimesSelect pass-through link).
Posted at 08:10 AM by Howard Bashman




Monday, July 16, 2007

"Democrats Attack Gonzales, Supreme Court": The Associated Press provides this report.
Posted at 08:05 AM by Howard Bashman




Sunday, July 15, 2007

"Sex-tour trial set to begin in Phila.; Eight Moldovan teens were flown in to testify against a N.J. millionaire accused of child molestations there": This article appears today in The Philadelphia Inquirer.

And The Associated Press reports that "Trial Set in Overseas Child Sex Case."
Posted at 11:07 PM by Howard Bashman




Sunday, July 15, 2007

St. Louis Cardinals 10, Philadelphia Phillies 2: The quixotic quest of the Phillies to avoid becoming the first North American team in professional sports history to reach 10,000 losses came to an end tonight in front of a sell-out home crowd (which included my son and me) at Citizens Bank Park as the team failed to achieve a sweep of a three-game series against the world champion Cardinals.

The Phillies thus managed to earn this mark of indistinction against a surprisingly appreciative home crowd, as the team now jets to southern California to face the top two teams in the National League West. The Phillies pitching staff gave up a total of six home runs tonight to the Cardinals, including two to Albert Pujols, giving him four in the three-game series. Phillies relief pitcher Brian Sanches, who entered the game in the top of the seventh inning with the Phillies trailing 6-0, gave up three solo home runs in that half inning, including two after having recorded two outs. Because the Phillies were so far out of contention in the game, Sanches was allowed to return to pitch the top of the eighth inning, where he performed comparatively better, yielding only one solo home run.

On the bright side, the Phillies did outscore the Cards in the ninth inning 2-0. But, regrettably, the preceding eight innings also counted toward the result. After the Cardinals had recorded the first two outs in the bottom of the ninth inning, the remaining crowd was surprisingly enthusiastic, applauding the Phillies as the team stood one out away from its 10,000th loss. After the final out was recorded, when slugger Ryan Howard struck out swinging, the crowd was quizzically quiet, unsure of how to respond.

You can access the box score of tonight's game at this link, while wraps from MLB.com are available here and here. The Philadelphia Inquirer provides a news update headlined "Phillies lose No. 10,000." The Associated Press reports that "Cardinals hand Phillies 10,000th loss." And Bloomberg News reports that "Phillies Fall to Cardinals for 10,000th Loss in Team History."
Posted at 11:05 PM by Howard Bashman




Sunday, July 15, 2007

"Rally urges racial justice; Thousands call for Wilson's release": The Atlanta Journal-Constitution today contains an article that begins, "As thunder rumbled overhead, about 2,000 marchers chanted through the streets of Douglasville Saturday morning in a 'March For Justice' protest organized by the NAACP, calling for the release of convicted teen sex offender Genarlow Wilson."
Posted at 02:00 PM by Howard Bashman




Sunday, July 15, 2007

"Terrorism and the Law: In Washington, a Need to Right Wrongs." The New York Times today contains an editorial that begins, "Congress and President Bush are engaged in a profound debate over what the founding fathers intended when they divided the powers to declare and conduct war between two co-equal branches of government. But on one thing, the Constitution is clear: Congress makes the rules on prisoners."
Posted at 01:57 PM by Howard Bashman




Sunday, July 15, 2007

"Keeping Secrets: How to balance national security with people's rights to have their day in court." The Washington Post contains this editorial today.
Posted at 01:45 PM by Howard Bashman




Sunday, July 15, 2007

"Dred Scott v. Sandford: Supreme Court Justice Stephen Breyer presides over a moot court to reconsider the Dred Scott case at Harvard University's Law School in Cambridge, MA." This broadcast (RealPlayer required) appeared two weeks ago on C-SPAN's "America & the Courts."
Posted at 01:33 PM by Howard Bashman




Sunday, July 15, 2007

"A Fight over Privileged Positions": In the July 23, 2007 issue of Time magazine, Reynolds Holding will have an article that begins, "You would think that after 218 years, 43 Presidents and countless partisan battles, the Federal Government would have worked out the rules for when Congress gets to question White House officials. But as President George W. Bush and the House and Senate Judiciary committees have made clear, you would be wrong."
Posted at 10:58 AM by Howard Bashman




Saturday, July 14, 2007

"School Diversity Based on Income Segregates Some": This article will appear Sunday in The New York Times.
Posted at 09:12 PM by Howard Bashman




Saturday, July 14, 2007

Philadelphia Phillies 10, St. Louis Cardinals 4: For the second day in a row, the offense of the Phillies achieved double digits in runs to defeat the reigning world champion Cardinals. Jimmy Rollins, Ryan Howard, and Aaron Rowand homered, and even Pat Burrell contributed to the offensive production, going three-for-three with four RBIs. When Burrell was removed for a pinch runner in the bottom of the sixth inning after a two-RBI bloop single to the opposite field, he was greeted with sustained applause, in contrast to the usual round of boos that he regularly receives and often has deserved.

Phillies starting pitcher Cole Hamels did not have a strong outing, recording only two strikeouts in six innings and giving up four runs, including a home run to Albert Pujols, who has now hit one out of the park in each of the past two days. But the Phillies offense and the bullpen, which held the Cardinals scoreless over the final three innings, allowed Hamels to record the win.

For those who regret that an appellate angle is lacking from most of my baseball coverage, I have some good news. At Citizens Bank Park before the start of today's game I had the pleasure of eating cheesesteaks with an Assistant to the Solicitor General of the United States. My son and I, and the aforesaid ASG and his lovely wife, also walked around the stadium a bit, taking in the sights.

Today's Phillies victory, before another sell-out crowd, postpones for at least another day the team's 10,000th loss. You can view the box score of today's game at this link, while wraps from MLB.com are available here and here. And The Associated Press reports that "Phillies Rout Cards, Avoid 10,000th Loss."

Update: Here are some photos that I took at last night's and this afternoon's Phillies games.

The view from last night, when our seats were in the very last section of the Hall of Fame Club along the third base side.

Batting in the top of the eighth inning on Friday night, former Phillie and current Cardinal Scott Rolen only needs to hit a nine-run home run to tie the score.

In the top of the first inning of this afternoon's game, Albert Pujols is at bat. He would pop out to second base.

In the bottom of the first inning, with leadoff hitter Jimmy Rollins at the plate facing a 3-2 count, the scoreboard helpfully reminds Rollins that he is good at hitting home runs. Moments later, Rollins hits a home run to lead-off the bottom half of the first inning, and here he is seen trotting to home plate to record the run.

Ryan Howard also knows a thing or two about hitting home runs. Earlier this season he hit his 100th home run, reaching that distinction in fewer games than anyone else in Major League Baseball history. Here he is digging in at the plate in the bottom of the first inning. And here's the pitch. And there it goes, as Howard has just hit the Phillies second solo home run in the bottom of the first inning, this one on a line drive to the right field seats.

In the bottom of the second inning, with two runners on base and two outs, Chase Utley is at the plate. You can see Phillies pitcher Cole Hamels on second base. Here's the pitch to Utley. With the baserunners on second and first running on the 3-2 pitch to Utley, he hits a double, and both runners score.

A bit later in the game, here's the pitch to Ryan Howard. In this at bat, he reached base after being hit by the pitch.

In the bottom of the eighth inning, Greg Dobbs entered the game as a pinch hitter. In this photo, you can see the baseball just before it reached the plate. Dobbs ended up striking out.
Posted at 08:42 PM by Howard Bashman




Saturday, July 14, 2007

"Federal Appellate Judge Dissents Without Reading Majority Opinion": At "The Volokh Conspiracy," Eugene Volokh has this interesting post about a Second Circuit decision issued yesterday that I previously noted at this link. Many of the comments to Eugene's post are also worth reading. And Eugene also offers additional thoughts about the merits of the ruling in this other post.
Posted at 12:35 PM by Howard Bashman




Saturday, July 14, 2007

"Ex-mayor's conviction upheld on appeal": The Atlanta Journal-Constitution today contains an article that begins, "A federal appeals court on Friday unanimously upheld former Atlanta Mayor Bill Campbell's conviction last year on tax fraud charges."

You can access yesterday's ruling of the U.S. Court of Appeals for the Eleventh Circuit at this link.
Posted at 12:04 PM by Howard Bashman




Saturday, July 14, 2007

"[T]he weight of authority suggests that accurate news reporting -- even when it is likely to have an adverse impact on the subjects of the report -- usually does not give rise to an action for intentional infliction of emotional distress": Yesterday, a unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit issued a decision affirming a federal district court's dismissal of claims for invasion of privacy and intentional infliction of emotional distress asserted by two former undercover police officers against a television station in Albuquerque that had revealed their identities and their undercover status in the context of a televised report about their suspected involvement in an alleged incident of sexual assault. Shortly after the broadcast, the police department announced publicly that it had concluded the officers were not involved in the alleged sexual assault.
Posted at 12:00 PM by Howard Bashman




Saturday, July 14, 2007

"Agents of Change": In the July 13, 2007 issue of CQ Weekly, columnist Kenneth Jost will have an essay that begins, "From the bench on the final day of this Supreme Court term, Stephen G. Breyer offered a stinging dissent in the case limiting local school board power to adopt racial mixing policies -- but the barb also summed up moderate and liberal frustration at the court's behavior during the preceding nine months."
Posted at 11:50 AM by Howard Bashman




Saturday, July 14, 2007

"History, Principle and Affirmative Action": Today in The New York Times, Stanley Fish has an op-ed (TimesSelect temporary pass-through link) that begins, "On its face, the affirmative action case decided on June 28 by the Supreme Court turns on whether two school districts in Washington and Kentucky violated the 14th Amendment's equal-protection guarantee when they assigned children to schools on the basis of race."
Posted at 09:54 AM by Howard Bashman




Saturday, July 14, 2007

"Prosecution rests in Padilla terror trial; After 22 witnesses and hundreds of exhibits, the prosecution rested in the Jose Padilla terror trial; The defense case begins next week": This article appears today in The Miami Herald.
Posted at 09:50 AM by Howard Bashman




Saturday, July 14, 2007

"Contempt for Congress": The New York Times today contains an editorial that begins, "The Bush administration's disregard for the rule of law hit another low this week when Harriet Miers, the former White House counsel, defied a Congressional subpoena."
Posted at 09:48 AM by Howard Bashman




Saturday, July 14, 2007

"Happy Blogiversary: It's been 10 years since the blog was born." This article appears today in The Wall Street Journal. Earlier this year, "How Appealing" celebrated its five-year anniversary.
Posted at 09:40 AM by Howard Bashman




Saturday, July 14, 2007

Available online from law.com: An article reports that "High Court Loss Prompts Malpractice Claim Against McGuireWoods; Company claims partner raised rates without authorization and wasted time trying to prevent it from retaining RICO specialist."

Shannon P. Duffy has an article headlined "3rd Circuit: Federal Transfer Doesn't Reset SOL Clock." You can access yesterday's ruling of the U.S. Court of Appeals for the Third Circuit at this link.

A profile of Sidley Austin attorney Virginia A. Seitz, described as the first woman from that law firm to argue before the U.S. Supreme Court, is headlined "How One Part-Time Lawyer Leads a Very Full Life."

And the brand new installment of my "On Appeal" column is headlined "Appeal Now or Later? A Look at Federal Rule of Civil Procedure 54(b)."
Posted at 08:35 AM by Howard Bashman




Saturday, July 14, 2007

Philadelphia Phillies 13, St. Louis Cardinals 3: Friday the 13th began ominously for the Phillies, as the team stood just one loss away from 10,000 losses in the history of the franchise, facing an opponent that won the 2006 World Series.

Fortunately for Friday evening's sell-out crowd, which included me and my son, the Phillies did not suffer from triskaidekaphobia, as they trounced the Cardinals by a score of 13-3. The sell-out was also the 13th of the season at beautiful Citizens Bank Park. And the Phillies pounded out a whopping 23 hits in the winning effort. To say something nice about the Cardinals, I will not overlook that Albert Pujols hit a tape measure solo home run to Ashburn Alley in dead center field in the top of the 8th inning, with the Cardinals trailing 11-1.

My son and I also have tickets to the remaining two games in this series. Tomorrow afternoon we will have the good fortune to sit in the Diamond Club just eight rows behind home plate. And Sunday evening we will be in our regular Sunday partial season ticket seats.

You can access the box score at this link, while wraps from MLB.com are available here and here. And The Associated Press reports that "Phils Rout Cards to Stay at 9,999 Losses."
Posted at 01:00 AM by Howard Bashman




Friday, July 13, 2007

"Prosecution Rests in Padilla Trial": The Associated Press provides a report that begins, "For a star defendant whose name is known around the world, Jose Padilla has become almost a bit player in his terrorism support trial - and some observers say the federal government may not have proved its case against him."
Posted at 03:20 PM by Howard Bashman




Friday, July 13, 2007

"Closing the courthouse doors: With Roberts at helm, ordinary Americans lose at Supreme Court." Law Professor Joseph Thai has this op-ed today in The Charlotte Observer.
Posted at 02:45 PM by Howard Bashman




Friday, July 13, 2007

"Va. Pain Doctor Gets Nearly 5-Year Term": The Associated Press provides this report.
Posted at 02:35 PM by Howard Bashman




Friday, July 13, 2007

Death resulting from a woman's unintentional consumption of peanuts resulted in a $1 million verdict against a paramedic service: And today, a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit has overturned that verdict in a decision that you can access here. Circuit Judge Richard A. Posner wrote the opinion.
Posted at 02:33 PM by Howard Bashman




Friday, July 13, 2007

In the July 23, 2007 issue of The New Republic: The magazine will contain an editorial entitled "Roberts Rules: John Roberts shows the yawning gap between modesty and obfuscation."

And Law Professor Jeffrey Rosen will have an essay entitled "Court Approval: Will John Roberts ever get better?"
Posted at 02:25 PM by Howard Bashman




Friday, July 13, 2007

"UK court rules for press freedom over privacy rights": Roger Parloff has this post today at Fortune magazine's "Legal Pad" blog.
Posted at 11:54 AM by Howard Bashman




Friday, July 13, 2007

"Mistrial in Rape Case With Banned Words": The Associated Press provides a report that begins, "Before a jury was even seated, a judge declared a mistrial in a sex-assault case where he had barred the words 'rape' and 'victim.'"

And The Lincoln (Neb.) Journal Star reports today that "Judge declares mistrial in Safi case."
Posted at 10:37 AM by Howard Bashman




Friday, July 13, 2007

"In this appeal, we consider whether a public college president's decision to cancel a student government election because of content published in a school newspaper violates the First Amendment rights of the student journalists who produce that publication." So begins the majority opinion that a partially divided three-judge panel of the U.S. Court of Appeals for the Second Circuit issued today.

The very next sentence of Circuit Judge Guido Calabresi's majority opinion states, "We conclude that, in the circumstances presented in this case, the school administrator’s actions did violate the First Amendment."

Chief Judge Dennis Jacobs has issued an opinion concurring in part and dissenting in part that begins:

I concur in the majority's result insofar as it affirms the dismissal of some claims, but I dissent insofar as it reverses the grant of qualified immunity.

I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it. I suppose this is unusual, so I explain why.

* * *

The majority has fulfilled its responsibility to explain at some length its vacatur of a part of the district court's judgment. But this is not a case that should occupy the mind of a person who has anything consequential to do. In a nutshell, the editors of the College Voice student newspaper used it as a campaign flyer to promote the self-styled radicals of the "Student Union" party in a long-ago student election, and the college president, finding that the partisan use of student-activity funds made a mockery of the election rules, directed that the election be re-run. The gist of the complaint is that the editors' speech was chilled, which is deemed to be a bad thing.

This is a case about nothing. Injunctive relief from the school's election rules is now moot (if it was ever viable); and plaintiffs' counsel conceded at oral argument that the only relief sought in this litigation is nominal damages. Now, after years of litigation over two dollars, the majority will impose on a busy judge to conduct a trial on this silly thing, and require a panel of jurors to set aside their more important duties of family and business in order to decide it.

And Chief Judge Jacobs's opinion concludes, "This prolonged litigation has already cost the school a lot of money that could better have been spent to enrich course offerings or expand student day-care. If this case ends with a verdict for plaintiffs (anything is possible with a jury), the district court will have the opportunity to consider whether the exercise merits an award of attorneys' fees in excess of one-third of two dollars."
Posted at 10:30 AM by Howard Bashman




Friday, July 13, 2007

Majority on divided three-judge Sixth Circuit panel rejects the latest iteration of Abu-Ali Abdur'Rahman's challenge to his Tennessee death sentence: You can access today's ruling at this link.
Posted at 10:15 AM by Howard Bashman




Friday, July 13, 2007

"House Panel Rejects Bush's Privilege Claim": This audio segment (RealPlayer required) featuring Nina Totenberg appeared on yesterday evening's broadcast of NPR's "All Things Considered."
Posted at 09:00 AM by Howard Bashman




Friday, July 13, 2007

Available online from law.com: An article reports that "N.J. Ethics Panel Finds Judge Abused Office by Interceding in Son's Dispute, Urges Censure."

In other news, "District Attorney in Ga. Teen Sex Case Under Fire; Video used against Genarlow Wilson is now subject of accusations against local prosecutor."

And an article reports that "2nd Circuit Attempts to Clarify Fee Rule in Civil Rights Cases." You can access yesterday's amended Second Circuit ruling at this link.
Posted at 08:44 AM by Howard Bashman




Friday, July 13, 2007

"Harriet Miers's Contempt of Congress: Are Conservatives About To Neuter Congress, While Claiming Full Legal Justification for this Separation-of-Powers Violation?" John W. Dean has this essay online today at FindLaw.
Posted at 07:58 AM by Howard Bashman




Thursday, July 12, 2007

"Prosecutor Under Fire in Teen Sex Case": The Associated Press provides a report that begins, "David McDade has handed out some 35 copies of a video of teenagers having sex at a party. McDade is no porno kingpin, but a district attorney."
Posted at 06:12 PM by Howard Bashman



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