How Appealing

Tuesday, October 17, 2017

Programming note: Later this afternoon, I will be attending a Major League Baseball playoff game in the Bronx with a family member who is now attending law school in New York City. As a result, additional posts are unlikely to appear here until Wednesday morning.
Posted at 11:20 AM by Howard Bashman

"Trump's judge picks: 'Not qualified,' prolific bloggers; But Republican senators still get on board." Seung Min Kim of has this report.
Posted at 11:03 AM by Howard Bashman

"Justice Elena Kagan talks about life on the Supreme Court during Chicago appearance": Steve Schmadeke of The Chicago Tribune has this report.
Posted at 11:00 AM by Howard Bashman

"Judges turn to extreme remedy to block Trump administration": Ariane de Vogue of has this report.
Posted at 10:55 AM by Howard Bashman

"Justice Sotomayor motivates law students to embrace difference": Michael Ortiz and Jill Leavey of The Hofstra Chronicle have this report.
Posted at 10:53 AM by Howard Bashman

"Trump and McConnell See a Way to Make Conservatives Happy": Carl Hulse has this new installment of his "On Washington" column online at The New York Times.

The installment begins, "Stymied legislatively, President Trump and Senator Mitch McConnell are turning their attention to one way they can skirt Democratic roadblocks and mollify unhappy Republicans -- by filling scores of federal court vacancies."
Posted at 10:50 AM by Howard Bashman

"It's a Fact: Supreme Court Errors Aren't Hard to Find; A ProPublica review adds fuel to a longstanding worry about the nation's highest court: The justices can botch the truth, sometimes in cases of great import." Ryan Gabrielson of ProPublica has this report.
Posted at 10:45 AM by Howard Bashman

"A Tragedy of Errors: The corkscrew case of Rogers Lacaze." Andrew Cohen has this essay online at The Marshall Project.
Posted at 10:18 AM by Howard Bashman

"To Become a Better Appellate Lawyer, You Should Read This Book": This month's installment of my "Upon Further Review" column appears in today's edition of The Legal Intelligencer, Philadelphia's daily newspaper for lawyers.

My column this month focuses on the brand new Third Edition of "Winning on Appeal: Better Briefs and Oral Argument," by Tessa L. Dysart, Leslie H. Southwick, and Ruggero J. Aldisert. The book also includes a foreword by Justice Samuel A. Alito, Jr. I received my copy in the mail last week.
Posted at 10:14 AM by Howard Bashman

View live, online today's Senate Judiciary Committee confirmation hearing for D.C. Circuit nominee Gregory G. Katsas: Via this link. Among the unique challenges this nominee will face is whether confirmation can be attained even after listing my name in his answers to the Senate Judiciary Committee's questionnaire.

And don't change that channel even after Katsas has concluded his testimony, or else you risk being surprised down the road that a brand new federal district judge has the last name Beaverstock.
Posted at 09:54 AM by Howard Bashman

Constitutionsplaining with Justice Neil M. Gorsuch: Don't miss Nina Totenberg's lengthy segment on this week's installment of the First Mondays podcast.

In addition to discussing marijuana smoking, the partying habits of law school deans (in which interviewer Dan Epps describes a certain Harvard Law School faculty member in a manner that even I could identify), and the U.S. Supreme Court's recent gerrymandering oral argument, Totenberg dishes the gossip on the newest Justice.

Among the things Totenberg claims to have heard through the grapevine are: (1) Justice Elena Kagan and Gorsuch are having knock-down, drawn-out battles over the outcome of cases during the Court's private conferences; (2) now that Gorsuch has joined the Court, he doesn't really believe in precedent, notwithstanding that his firm belief in precedent was a major sales pitch at his SCOTUS confirmation hearings; and (3) Gorsuch simply isn't as smart as had been depicted (IQ tests, anyone?).

Of course, all of this and more that Totenberg discusses with interviewer Epps could simply be dismissed as "liberal propaganda," but it's certainly worth a listen, because when it comes to behind-the-scenes SCOTUS insights, all we have is rumors.
Posted at 09:32 AM by Howard Bashman

Monday, October 16, 2017

"Supreme Court refuses to hear case questioning Google's trademark; Lawsuit claimed 'google' had become synonymous with 'search the Internet'": David Kravets of Ars Technica has this report.
Posted at 08:45 PM by Howard Bashman

"U.S. Supreme Court declines Ten Commandments case": Hannah Grover of The Farmington (N.M.) Daily Times has this report.
Posted at 08:42 PM by Howard Bashman

"Settlement May Scuttle Securities-Fraud Clash at Supreme Court": Greg Stohr of Bloomberg News has this report.
Posted at 08:37 PM by Howard Bashman

"Justices to Decide on Forcing Technology Firms to Provide Data Held Abroad": Adam Liptak of The New York Times has this report.

Robert Barnes of The Washington Post reports that "Supreme Court to consider major digital privacy case on Microsoft email storage."

David G. Savage of The Los Angeles Times reports that "Supreme Court to decide if U.S. agents can obtain emails stored overseas by Microsoft."

Richard Wolf of USA Today reports that "Supreme Court will hear U.S.-Microsoft battle over emails."

Matt Day of The Seattle Times reports that "Supreme Court will take up Microsoft email warrant fight."

Mark Sherman of The Associated Press reports that "Court agrees to take on US-Microsoft dispute over emails."

Lawrence Hurley of Reuters reports that "U.S. Supreme Court to decide major Microsoft email privacy fight."

Greg Stohr of Bloomberg News reports that "Microsoft Email-Access Fight With U.S. Gets Top Court Review."

David Kravets of Ars Technica reports that "Supreme Court to decide if US has right to data on world's servers; Feds claim legal right to reach into the world's servers with a valid US warrant."

Josh Gerstein of reports that "Supreme Court to hear case on accessing data stored abroad; Justice Department gets review of decision favoring Microsoft."

And Matt Ford of The Atlantic has a report headlined "Should Federal Prosecutors Be Able to Search Americans' Emails Overseas? The Supreme Court will resolve a standoff between Microsoft and federal prosecutors who want access to customer data stored in Ireland."
Posted at 07:56 PM by Howard Bashman

"Sotomayor discusses civics, other topics at Queens College talk": Ryan Brady of Queens Chronicle has this report.
Posted at 07:36 PM by Howard Bashman

"Greg Katsas -- Nominee for the U.S. Court of Appeals for the D.C. Circuit": Harsh Voruganti has this post at his blog, "The Vetting Room."
Posted at 07:32 PM by Howard Bashman

"American Express Fee Accusations Get U.S. High Court Hearing": Greg Stohr of Bloomberg News has this report.

And Andrew Chung of Reuters reports that "U.S. top court to review antitrust claims against American Express."
Posted at 05:26 PM by Howard Bashman

"Judge rejects Menendez request to toss bribery charges": Thomas Moriarty and MaryAnn Spoto of The Newark (N.J.) Star-Ledger have this report.

And Nick Corasaniti of The New York Times reports that "Menendez Trial Judge Rejects Motion to Dismiss the Case."
Posted at 05:06 PM by Howard Bashman

"Yahoo! can't withhold dead man's e-mails from family, SJC rules": John R. Ellement of The Boston Globe has this report.

Gintautas Dumcius of The Republican of Springfield, Massachusetts has an article headlined "Yes, Yahoo can give dead man's family members access to his email account, Massachusetts Supreme Judicial Court says."

And Nate Raymond of Reuters has a report headlined "Massachusetts court: Yahoo can give dead man's emails to siblings."

You can access today's ruling of the Supreme Judicial Court of Massachusetts at this link.
Posted at 03:33 PM by Howard Bashman

"Slow and Unsteady: Supreme Court's New Transcription Service." Kimberly Robinson has this post at Bloomberg BNA's "US Law Week Blog."
Posted at 03:02 PM by Howard Bashman

"How Anti-Trump Psychiatrists Are Mobilizing Behind the Twenty-Fifth Amendment": Law professor Jeannie Suk Gersen has this post online at The New Yorker.
Posted at 02:40 PM by Howard Bashman

"The Danger of President Pence: Trump's critics yearn for his exit; But Mike Pence, the corporate right's inside man, poses his own risks." Jane Mayer has this article in the October 23, 2017 issue of The New Yorker.
Posted at 02:36 PM by Howard Bashman

Ninth Circuit Judge M. Margaret McKeown to Receive White House Fellows Program Award: The White House Fellows Foundation and Association recently issued this news release.
Posted at 02:22 PM by Howard Bashman

"OT2017 #3: "Nowheresville" (ft. Nina Totenberg)." You can access today's new episode of the "First Mondays" podcast, featuring Ian Samuel and Dan Epps, via this link.
Posted at 02:14 PM by Howard Bashman

"Judge Ralph K. Winter Receives 2017 Devitt Award": The Administrative Office of the U.S. Courts has issued this news release.
Posted at 01:14 PM by Howard Bashman

"Court nominee faces scrutiny over Trump White House role": Josh Gerstein of has an article that begins, "Greg Katsas has spent more than three decades burnishing a high-powered legal resume that makes him a solid pick for the D.C. Circuit Court of Appeals, but the biggest obstacle to his winning confirmation is the job he's had for the past nine months: serving as a top White House lawyer for President Donald Trump."
Posted at 01:09 PM by Howard Bashman

Access today's Order List of the U.S. Supreme Court: At this link. The Court granted review in four new cases.

In addition, in Scenic America, Inc. v. Dep't of Transp., No. 16-739, Justice Neil M. Gorsuch issued a statement, in which Chief Justice John G. Roberts, Jr. and Samuel A. Alito, Jr. joined, respecting the denial of certiorari.

And in Truehill v. Florida, No. 16-9448, Justice Stephen G. Breyer issued a dissent from denial of certiorari. And Justice Sonia Sotomayor also issued a dissent, in which Justices Ruth Bader Ginsburg and Breyer joined, from the denial of certiorari. Because four votes are needed to grant certiorari in a case, if Justice Elena Kagan (or any other Justice for that matter) had voted to grant certiorari, this death penalty case would have landed on the Court's merits docket.
Posted at 09:37 AM by Howard Bashman

Sunday, October 15, 2017

"The Morality of Administrative Law": Law professor Cass R. Sunstein and Adrian Vermeule have posted this article on SSRN (via "Legal Theory Blog").
Posted at 11:03 PM by Howard Bashman

"Texas Engaged In Viewpoint Discrimination In Removal of Bill of Rights Nativity Display": Howard Friedman has this post at his "Religion Clause" blog about a ruling that the U.S. District Court for the Western District of Texas issued on Friday.
Posted at 10:42 PM by Howard Bashman

"Menendez Trial May Hinge on a New Definition of Bribery": Nick Corasaniti of The New York Times has this report.
Posted at 10:35 PM by Howard Bashman

"Symposium on the Testimony of Lawrence B. Solum on Originalism at the Gorsuch Hearings": You can access the symposium papers via this link at the "Legal Theory Blog."
Posted at 10:28 PM by Howard Bashman

"Trump Closes a Health Dispute, but Leaves Open a Power Struggle": Carl Hulse has this new installment of his "On Washington" column online at The New York Times.
Posted at 10:22 PM by Howard Bashman

"A Free Pass for Corporations in Human Rights Suits?" Kenneth Jost has this post at his blog, "Jost on Justice."
Posted at 10:18 PM by Howard Bashman

"Editing Alchemy": Joseph Regalia has this post at the "Appellate Advocacy Blog."
Posted at 10:12 PM by Howard Bashman

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