How Appealing


Saturday, February 21, 2015

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

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




Saturday, February 21, 2015

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




Saturday, February 21, 2015

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




Saturday, February 21, 2015

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

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




Saturday, February 21, 2015

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

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

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




Saturday, February 21, 2015

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




Saturday, February 21, 2015

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




Saturday, February 21, 2015

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




Saturday, February 21, 2015

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




Saturday, February 21, 2015

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




Saturday, February 21, 2015

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

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

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

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

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

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

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




Saturday, February 21, 2015

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




Saturday, February 21, 2015

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

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

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

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




Saturday, February 21, 2015

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

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




Saturday, February 21, 2015

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

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




Saturday, February 21, 2015

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

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

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

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




Saturday, February 21, 2015

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




Saturday, February 21, 2015

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

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




Saturday, February 21, 2015

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

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

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

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

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

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

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

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

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




Friday, February 20, 2015

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

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




Friday, February 20, 2015

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

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




Friday, February 20, 2015

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

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




Friday, February 20, 2015

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

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

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




Friday, February 20, 2015

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




Friday, February 20, 2015

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




Friday, February 20, 2015

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

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

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

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




Friday, February 20, 2015

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




Friday, February 20, 2015

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




Friday, February 20, 2015

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

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




Friday, February 20, 2015

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




Friday, February 20, 2015

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

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




Friday, February 20, 2015

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




Friday, February 20, 2015

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




Friday, February 20, 2015

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

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




Friday, February 20, 2015

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

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



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tonypierce.com + busblog

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