How Appealing


Tuesday, February 17, 2015

"The case against cheating prosecutors": This editorial, which focuses on an example from the Ninth Circuit, appeared recently in The Los Angeles Times.
Posted at 12:00 PM by Howard Bashman




Tuesday, February 17, 2015

A 140-character concurrence: Orin Kerr tweeted at 12:51 a.m. eastern time today, "Been enjoying @howappealing's blogging against the reduction in appellate brief word limits. I agree with him, especially for crim cases."*

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*Technically speaking, Orin's tweet actually only contains 137 characters using Twitter's method of counting.
Posted at 11:48 AM by Howard Bashman




Tuesday, February 17, 2015

Access today's newly posted public comments on the FRAP word limit reduction proposal: Seven new comments appeared online today, six of which oppose the proposal and one of which contains a tepid endorsement.

The Office of General Counsel of the Securities and Exchange Commission posted this comment opposing the word limit reduction proposal.

The American Bar Association's Council of Appellate Lawyers has posted this very persuasive comment opposing the word limit reduction. You will find appended to the organization's official comment a series of comments largely but not exclusively against the word limit reduction proposal that council members submitted.

I have previously linked to the comment from the National Association of Criminal Defense Lawyers opposing the word limit reduction proposal.

Attorney Walter K. Pyle has posted this comment opposing the word limit reduction.

Attorney Richard L. Stanley has posted this comment opposing the word limit reduction.

And attorney Jonathan Block has posted this comment opposing the word limit reduction.

The public comment period expires at midnight eastern time tonight. Public comments may only be submitted online via this link.
Posted at 11:40 AM by Howard Bashman




Tuesday, February 17, 2015

"Republican lawmakers hold the line against Obamacare at state level": This front page article appears in today's edition of The Los Angeles Times.

And Reuters reports that "Obamacare rescue ruled out by some states, others weigh options."
Posted at 09:56 AM by Howard Bashman




Tuesday, February 17, 2015

Some FRAP briefing word limit expansion horror stories from the Third Circuit -- your mileage may vary: If the Federal Rules of Appellate Procedure are amended to reduce the word limit for principal appellate briefs from 14,000 words to 12,500 words, all federal appellate courts are certain to receive a larger number of motions seeking to expand the word limits applicable to particular appeals.

Whether an increased volume of such motions on a grand scale is or is not a good thing is something I will leave for others to decide. The purpose of this post is to describe what happened with two particular word limit expansion motions pertaining to criminal appeals filed in the U.S. Court of Appeals for the Third Circuit.

In United States v. Auernheimer, No. 13-1816 (3d Cir.), the Third Circuit in April 2014 -- only three weeks after oral argument -- issued a decision that resulted in the defendant's immediate release from federal prison. The federal government thereafter decided not to initiate any new charges against the defendant.

The docket entries in that case reflect that on August 5, 2013, the federal government filed a motion for leave to file a brief for appellee containing 26.495 words in order to adequately respond not only to the brief for appellant but also to all of the amicus briefs filed in support of the appellant's side. On October 14, 2013, the appellant withdrew his motion to strike the federal government's brief, thereby making the federal government's word limit expansion motion unopposed as of that date.

The Third Circuit, however, did not enter an order granting the federal government's motion to file an oversized brief for appellee until December 19, 2013. Because it took more than four months to resolve the motion, over two months of which the motion was unopposed, it is fair to say that the defendant was unnecessarily forced to spend two to four additional months in federal prison as the result of an unresolved briefing word limit expansion motion.

Lest you think that the delay in Auernheimer was unique, permit me to refer to the criminal appeal that I argued in the Third Circuit last month. In that case, on October 11, 2013, counsel for appellant sought leave to file a brief for appellant containing not more than 18,250 words. The federal government filed no opposition to that motion, rendering the motion unopposed some 15 days later. On March 28, 2014 -- nearly six months later -- the Third Circuit entered order granting permission for appellant to file an opening brief not longer than 16,100 words.

Perhaps these two instances of inordinate delays surrounding word limit expansion motions are atypical, but they certainly do not cause me to favor a regime in which the federal appellate courts must handle an even larger volume of word limit expansion motions than those courts are currently facing.
Posted at 09:40 AM by Howard Bashman




Tuesday, February 17, 2015

The U.S. Court of Appeals for the Fourth Circuit is closed today due to the snowstorm: See this notice.
Posted at 09:03 AM by Howard Bashman




Tuesday, February 17, 2015

"The Federal Circuit's New 'Authorized Acquirer' Restriction on Patent Exhaustion": Samuel Ernst had this post yesterday at "Patently-O" discussing the recent ruling of the U.S. Court of Appeals for the Federal Circuit (also closed today due to the snowstorm) in Helferich Patent Licensing, LLC v. The New York Times Co.

My initial coverage of the ruling on the day of its issuance focused on the fact that the highly talented and exceptionally experienced appellate lawyers for the parties in that case all filed appellate briefs that were considerably in excess of the new word limits now under consideration for the Federal Rules of Appellate Procedure. I also had this follow-up post linking to news coverage of the ruling.
Posted at 09:00 AM by Howard Bashman




Tuesday, February 17, 2015

"In Alabama, Obstruction of Justice on Marriage": Kenneth Jost had this post yesterday at his blog, "Jost On Justice."
Posted at 08:52 AM by Howard Bashman




Tuesday, February 17, 2015

"The Incredible Shrinking Lawsuit: The Decomposition Of King v. Burwell." Rob Weiner has this guest post today at "Balkinization."
Posted at 08:50 AM by Howard Bashman




Tuesday, February 17, 2015

"Judge Torruella calls on courts to 'reevaluate' Commerce Clause decisions": Jonathan H. Adler has this post today at "The Volokh Conspiracy."

My earlier coverage of last Wednesday's First Circuit ruling can be accessed here.
Posted at 08:40 AM by Howard Bashman




Tuesday, February 17, 2015

"Judge Hanen halts Obama immigration initiatives": Emma Perez-Trevino of The Brownsville (Tex.) Herald has this report.

Julia Preston of The New York Times has a news update headlined "Obama Immigration Policy Halted by Federal Judge in Texas."

The Washington Post reports that "Federal judge in Texas blocks Obama immigration orders."

The Los Angeles Times reports that "Judge blocks Obama policy that would shield millions from deportation."

Nathan Koppel and Miguel Bustillo of The Wall Street Journal report that "Federal Judge Stalls Obama's Executive Action on Immigration; U.S. government expected to appeal to Fifth U.S. Circuit Court of Appeals."

USA Today reports that "Judge orders halt to Obama immigration plan."

The Washington Times reports that "Federal judge halts Obama amnesty."

The Associated Press reports that "Federal judge stalls Obama's executive action on immigration"; "Gov't will appeal ruling blocking Obama immigration plan"; and "Judge who blocked immigration action had criticized policy."

Reuters reports that "Texas judge blocks Obama plan to protect undocumented immigrants."

Bloomberg News reports that "Obama's Order on Immigration Halted by Federal Judge in Texas."

Josh Gerstein of Politico.com reports that "Judge halts Obama's immigration action; The president lacks the legal authority to carry out his orders, U.S. District Court Judge Andrew Hanen ruled."

And Elise Foley of The Huffington Post reports that "Judge Temporarily Halts Obama's Immigration Actions."

You can access yesterday's 123-page ruling of the U.S. District Court for the Southern District of Texas at this link (11.2 MB scanned PDF document).
Posted at 07:32 AM by Howard Bashman




Monday, February 16, 2015

"FEDERAL OFFICES in the Washington, DC area are CLOSED": The U.S. Office of Personnel Management has posted this notice for Tuesday, February 17, 2015.

Coincidentally, tomorrow in Washington, D.C., an "Appellate Rules and Forms Public Hearing" is scheduled to occur to consider, among other things, a controversial proposed amendment to reduce the word limits applicable to federal appellate briefs.

When I learn whether the hearing will occur tomorrow notwithstanding the snow storm affecting Washington, D.C., I will let this blog's readers know.

Update: The D.C. Circuit has announced that it will be closed on Tuesday, February 17, 2015 due to snow.
Posted at 10:17 PM by Howard Bashman




Monday, February 16, 2015

Additional reader comments on the proposed FRAP briefing word limit reductions: One very experienced federal appellate practitioner writes:
If I felt I could predict which of my issues the panel was most likely to think meritorious, I would feel more comfortable pruning the issues. But since I have won more than one case on an issue I wouldn't have bet a plug nickel on, and have lost on issues I was sure were winners, and have suffered summary dispositions where I firmly believed the issues were at least worthy of serious consideration, I no longer believe I can choose my "best three" issues in the sense that appellate judges mean when then say such things at CLE panels. Only if they will tell me in advance which three those are, will I be in a position to comply.
And another longtime reader has sent along the following comment:
I write to comment against the proposal to reduce the maximum word length of federal appellate briefs. I have been in practice nearly 25 years, almost all of that in small firms or as a solo practitioner. Additionally, for a number of years I wrote many, many briefs for other lawyers on a per diem basis. I have litigated up and down the state and federal trial and appellate systems.

The distinguished Circuit Judge,who taught my law school class in Federal Appellate Practice admonished us time and again that the place to make our client's argument was in the brief. We, as advocates, could control that. Already then in the late '80s, limits on oral argument were coming into play. Not every case would get oral argument. Fair enough. But now, we get the briefs cut. One could easily conclude that the Circuits just don't want to be bothered.

For more than the past decade, I've sought to avoid the federal courts like the plague. I became convinced their inclination, reflected in their decisions, was not to achieve the simple, just and economical resolution of all cases. The arcana of the Courts' rules, as applied, yielded judges producing finely wrought opinions, concurrences and dissents sometimes dozens of pages long. They might be parsing, yet again, the inner meaning of the removal statute in cases where two entities with too much money already were fighting over who would get more. In the same batch of cases, some ordinary person, as appellant and seeking justice in the courts for perhaps the first (or only) time in their life, might get a cursory "aff'd mem."

There are some cases where the brief has to be long. The facts might be complicated. The trial judge may have made a panoply of errors. The ordinary litigant represented by an ordinary lawyer might not -- probably won't -- have the money to pay for a specialized appellate advocate nor for the time to spend on honing and sharpening a brief to a single, very short argument. Nor will the ordinary litigant have the daring to stake their case on a single short argument and abandon meritorious arguments. Appellate courts have recently been quite aggressive in seeking out ways to declare arguments abandoned. One has to preserve arguments on the odd chance there might be a "later," when that argument could prove vital or its abandonment fatal. Nor, for that matter, will the average advocate have the courage to recommend to his clients that they stake the clients' case on one argument. The average appellant's advocate has, lurking in the back of his or her consciousness, the specter of a malpractice suit revolving around abandoned arguments and briefs not comprehensive enough. When the average litigant is an appellant, he or she wants to make every argument. Years of counseling average people as clients has left me with the firm conclusion, empirically derived, that many unsophisticated litigants just have a hard time grasping the concept that some arguments are losers which should not be made. It takes some persuading.

The average appellate brief, filed by the average practitioner, probably comes nowhere near the existing word limit. But for those cases where the case requires it, the practitioner should not have to hope for the Court's grace nor expend the additional time, money and effort on motion practice.

The proposed amendment to the FRAP should not go into effect.

Tomorrow is the deadline for public comments supporting or opposing the proposed briefing word limit reduction. Official comments must be submitted online via this link. Unofficial comments can be emailed to me for consideration for posting here, where they might just be read by many of the same people who will be reviewing the official comments.
Posted at 09:18 PM by Howard Bashman




Monday, February 16, 2015

"Cleburne judge says he won't license same-sex weddings": The Anniston (Ala.) Star has this news update.
Posted at 09:03 PM by Howard Bashman




Monday, February 16, 2015

"Will John Roberts or Anthony Kennedy Save Obamacare? Lawyers tailor their appeals to each in the fight over the law's health insurance subsidies." Sam Baker of National Journal has this report.
Posted at 08:50 PM by Howard Bashman




Monday, February 16, 2015

"Millions at risk of losing coverage in Supreme Court health law case": The Washington Post has this news update.
Posted at 08:30 PM by Howard Bashman




Monday, February 16, 2015

"Ruth Bader Ginsburg on abortion, race and the broken Congress": Irin Carmon of msnbc has this report.
Posted at 03:54 PM by Howard Bashman




Monday, February 16, 2015

National Association of Criminal Defense Lawyers opposes the proposed FRAP briefing word limit reductions: You can access that organization's comments via this link. The organization's opposition to the proposed word limit reductions begins on page three of the document.

This organization's grounds for opposing the proposed FRAP briefing word limit reductions strike me as very well reasoned.
Posted at 03:00 PM by Howard Bashman




Monday, February 16, 2015

Access online the contents of the February 2015 issue of the Stanford Law Review: Via this link.
Posted at 01:34 PM by Howard Bashman




Monday, February 16, 2015

Mother Nature weighs in on the proposed amendments to the Federal Rules of Appellate Procedure: Tomorrow in Washington, D.C., an "Appellate Rules and Forms Public Hearing" is scheduled to occur. Coincidentally, overnight in Washington, D.C., the weather forecast calls for 5 to 8 inches of snow.

If the hearing occurs as planned tomorrow, I will link to a transcript of the hearing once it becomes available online.
Posted at 11:48 AM by Howard Bashman




Monday, February 16, 2015

"King v. Burwell and ideological voting": Eric Posner has this post today at his blog.
Posted at 10:50 AM by Howard Bashman




Monday, February 16, 2015

"What Alabama's Roy Moore Got Right": Brian Epstein, an assistant professor of philosophy at Tufts University, has this post today at the "Opinionator" blog of The New York Times.
Posted at 10:48 AM by Howard Bashman




Monday, February 16, 2015

"BC Civil Liberties Association to argue human smuggling cases in Supreme Court": Today's edition of The Toronto Globe and Mail contains an article that begins, "The Supreme Court of Canada this week is set to hear arguments in a number of cases calling into question the reach of the country's human smuggling laws."
Posted at 08:27 AM by Howard Bashman




Monday, February 16, 2015

"How to Force Prosecutors to Play Fair": This editorial appears in today's edition of The New York Times.
Posted at 08:24 AM by Howard Bashman




Monday, February 16, 2015

"What Led Me to Disrupt the US Supreme Court and Risk 150 Days Imprisonment": Curt Ries has this essay online at Truthout.
Posted at 08:20 AM by Howard Bashman




Sunday, February 15, 2015

"Alabama gay marriage fight echoes states' rights battles": The Associated Press has this report.

Nick Gass of Politico.com has a report headlined "Roy Moore: Not thwarting U.S. Supreme Court on gay marriage."

Ariel Edwards-Levy of The Huffington Post has a report headlined "Judge Challenging Alabama Chief Justice Roy Moore On Gay Marriage: 'We're On The Right Side Of History.'"

And at AL.com, columnist Cameron Smith has an essay titled "How the U.S. Supreme Court biased its own decision on same-sex marriage."
Posted at 01:30 PM by Howard Bashman




Sunday, February 15, 2015

"Floyd County awaits gay marriage ruling from U.S. Supreme Court": Alan Riquelmy has this front page article in today's edition of The Rome (Ga.) News-Tribune.
Posted at 01:18 PM by Howard Bashman




Sunday, February 15, 2015

"Gay marriage: 'A hot spur' to Texans." Anna M. Tinsley has this front page article in today's edition of The Star-Telegram of Fort Worth, Texas.
Posted at 01:14 PM by Howard Bashman




Sunday, February 15, 2015

"California man's case prompts new law on expert testimony": The Associated Press has this report.
Posted at 09:22 AM by Howard Bashman




Sunday, February 15, 2015

"Questions on plaintiffs unlikely to derail health lawsuit": Mark Sherman of The Associated Press has this report.
Posted at 09:16 AM by Howard Bashman




Sunday, February 15, 2015

"Washington's pending showdown on school funding: Legislature vs. Supreme Court; How will the education-funding showdown between the Legislature and Washington's Supreme Court end? Other states' experiences run the gamut from courts shutting school down to get what they want, to simply backing off." The Seattle Times has this report.
Posted at 09:12 AM by Howard Bashman




Sunday, February 15, 2015

"Who is Roy Moore? Alabama's Ten Commandments Judge takes on same-sex marriage." Kelsey Stein has this front page article in today's edition of The Birmingham News.

In today's edition of The Washington Post, Monica Hesse has a front page article headlined "Judge tangled up over tying the knot."

And in today's edition of The Montgomery Advertiser, Brian Lyman has a front page article headlined "For most Ala. officials, a muted reaction to same-sex marriage."
Posted at 09:04 AM by Howard Bashman




Saturday, February 14, 2015

"Obamacare lawsuit questions -- 'kerfuffle' or threat?" Jennifer Haberkorn of Politico.com has this report.
Posted at 04:55 PM by Howard Bashman




Saturday, February 14, 2015

"Alabama Supreme Court to consider petition seeking halt to same-sex marriage licenses": Kent Faulk of The Birmingham News has this report.

And Cheryl Wetzstein of The Washington Times reports that "Ala. gay marriage fight moves to state supreme court; Judges, 6-2, order probate judges to respond."

You can view yesterday's order of the Supreme Court of Alabama at this link.
Posted at 02:31 PM by Howard Bashman




Saturday, February 14, 2015

"Himonas unanimously confirmed to the Utah Supreme Court": The Salt Lake Tribune has this report.

And The Deseret News reports that "Senate confirms new Utah Supreme Court justice."
Posted at 02:24 PM by Howard Bashman



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