How Appealing

Monday, April 24, 2017

Programming note: On Tuesday morning, I will be arguing an appeal on behalf of the plaintiff-appellee before a three-judge panel of the Superior Court of Pennsylvania. As a result, additional posts will not appear here until Tuesday afternoon.

At 10 a.m. eastern time on Tuesday, the U.S. Supreme Court is expected to issue one or more rulings in argued cases. You can access any decisions via this link just as soon as the Court posts them online.

As always while I am away from the computer, more frequent appellate-related retweets will appear on this blog's Twitter feed.
Posted at 10:24 PM by Howard Bashman

"When the government can make businesses talk": Alison Frankel's "On the Case" from Thomson Reuters News & Insight has this post today.
Posted at 09:06 PM by Howard Bashman

"Trump dinner with Supreme Court justices postponed": Josh Gerstein of has this blog post.
Posted at 05:40 PM by Howard Bashman

"'Assembly-line' execution effort in Arkansas fuels opposition": Richard Wolf of USA Today has this report.
Posted at 05:37 PM by Howard Bashman

"'Judge Kozinski, he saved my life': A woman had already chosen her last meal when Judge Alex Kozinski saved her from death row; He admits she may be guilty -- so why did he do it?" CBS News has posted online this video segment from "60 Minutes Overtime."
Posted at 04:56 PM by Howard Bashman

"The Supreme Court's double standard for qualified immunity cases": Will Baude has this post at "The Volokh Conspiracy."
Posted at 03:05 PM by Howard Bashman

"Justices weigh defendants' right to own mental health expert": Mark Sherman of The Associated Press has this report.

You can access at this link the transcript of today's U.S. Supreme Court oral argument in McWilliams v. Dunn, No. 16-5294.
Posted at 02:45 PM by Howard Bashman

"U.S. states realign in legal battle over Trump's travel ban": Dan Levine and Mica Rosenberg of Reuters have this report.
Posted at 01:35 PM by Howard Bashman

Access today's Order List of the U.S. Supreme Court: At this link. The Court did not grant review in any new cases.

In Smith v. Ryan, No. 16-8071, Justice Stephen G. Breyer issued a statement respecting the denial of certiorari.

In Salazar-Limon v. City of Houston, No. 16-515, Justice Samuel A. Alito, Jr. issued a concurrence, in which Justice Clarence Thomas joined, in the denial of certiorari. And Justice Sonia Sotomayor issued a dissent, in which Justice Ruth Bader Ginsburg joined, from the denial of certiorari.

Update: In early news coverage, The Associated Press reports that "High court won't hear appeal over CIA torture report"; "Justices turn away GM appeal over ignition switches"; and "Justices won't hear challenge to Alabama campaign law.."

And Reuters reports that "U.S. top court won't review Houston police shooting 'waistband' defense"; "Supreme Court rejects GM bid to block ignition switch suits"; "U.S. top court preserves Alabama campaign finance curbs"; "U.S. Supreme Court snubs Chesapeake Energy in bonds dispute": and "U.S. high court won't review WellCare ex-CEO fraud conviction."
Posted at 09:34 AM by Howard Bashman

"OT2016 #19: 'Cusp of a Revelation.'" You can access today's new episode of the "First Mondays" podcast, featuring Ian Samuel and Dan Epps, via this link.
Posted at 08:17 AM by Howard Bashman

"Trump reschedules dinner with Supreme Court justices": Brandon Carter of The Hill has this report.
Posted at 08:14 AM by Howard Bashman

"Texas man convicted in double slaying to get Supreme Court hearing; The U.S. Supreme Court, including its newest justice, Neil Gorsuch, will decide on a legal technicality in the case of a Fort Worth man who killed a 5-year-old girl and her grandmother": Jolie McCullough of The Texas Tribune has this report.
Posted at 08:12 AM by Howard Bashman

"Supreme Court To Decide If Prosecution, Defense Can Share Experts in Capital Case": Nina Totenberg had this audio segment on today's broadcast of NPR's "Morning Edition."
Posted at 08:09 AM by Howard Bashman

Sunday, April 23, 2017

"Judge Alex Kozinski's advice for President Trump: Ninth Circuit Court of Appeals judge tells 60 Minutes it's not the judiciary's job to be a political counterforce, but to protect against abuses." Lesley Stahl had this segment (video / transcript) on this evening's broadcast of the CBS News program "60 Minutes."
Posted at 11:26 PM by Howard Bashman

"A popular public school Bible class in West Virginia faces legal challenge": Joe Heim of The Washington Post has this report.
Posted at 11:09 PM by Howard Bashman

"Berkeley cell phone warning law upheld by federal appeals court": Bob Egelko of The San Francisco Chronicle has this report.

Tom Lochner of The East Bay Times reports that "Judges panel gives ringing boost to Berkeley's cell phone disclosure ordinance; A federal court panel found that Berkeley's cellphone disclosure ordinance does not violate the First Amendment."

And Cyrus Farivar of Ars Technica reports that "Mobile industry loses its bid to stop Berkeley's cellphone warning law; 9th Circuit: Local law actually 'complements and reinforces' federal law, policy."

You can access Friday's ruling of a partially divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 10:09 PM by Howard Bashman

"Suspended Chief Justice Roy Moore to announce plans Wednesday": Mike Cason of has a report that begins, "Suspended Alabama Supreme Court Chief Justice Roy Moore will announce his future plans on the steps of the State Capitol on Wednesday."
Posted at 08:54 PM by Howard Bashman

"The Supreme Court Weighs the Church-State Division": This editorial appears in today's edition of The New York Times.
Posted at 08:50 PM by Howard Bashman

"Crime and Different Punishments": Ross Douthat has this op-ed in today's edition of The New York Times.

The op-ed discusses an article titled "Why Prison?: An Economic Critique" by Peter N. Salib, a recent graduate of the University of Chicago Law School who is currently clerking for Seventh Circuit Judge Frank H. Easterbrook.
Posted at 08:46 PM by Howard Bashman

"John Noonan, Federal Judge Who Served for Three Decades, Dies at 90": This obituary, written by Sam Roberts, appears in today's edition of The New York Times.
Posted at 08:32 PM by Howard Bashman

"Bearing Witness to Executions: Last Breaths and Lasting Impressions." Alan Blinder and Manny Fernandez of The New York Times have this article.
Posted at 07:35 PM by Howard Bashman

"Alito Cites GOP Ad to Argue Against Televising Supreme Court Arguments": Jess Bravin has this post at's "Washington Wire" blog.

And Friday at that very same blog, Bravin had a post titled "With Court at Full Strength, Alito Foresees Less Conservative Compromise With Liberal Bloc."

Both posts originate from Bravin's coverage of Justice Samuel A. Alito, Jr.'s remarks at a fireside chat Thursday afternoon at the Third Circuit's Judicial Conference. As I noted in this post earlier today, I came this close to recognizing Bravin, whom I have never formally met in person, that afternoon while he was sitting at a table in the conference's main hallway typing his reports on his laptop.
Posted at 03:50 PM by Howard Bashman

"Trump eyeing second Supreme Court seat": Lydia Wheeler of The Hill has this report.
Posted at 03:36 PM by Howard Bashman

"Indiana Supreme Court set to be all-white, all-GOP appointed": Rick Callahan of The Associated Press has this report.
Posted at 03:32 PM by Howard Bashman

"With Supreme Court seat filled, GOP looks to lower courts": Mary Clare Jalonick of The Associated Press has a report that begins, "Republicans have put President Donald Trump's Supreme Court nominee on the bench, and they're now in a position to fill dozens more federal judgeships -- and reshape some of the nation's highest courts. Democrats have few ways to stop them."
Posted at 03:20 PM by Howard Bashman

Some highlights from last week's Judicial Conference of the U.S. Court of Appeals for the Third Circuit: Finally had the pleasure of meeting in person Senior U.S. District Judge Mark W. Bennett (N.D. Iowa), whose writings and accomplishments I have long admired. Plus, narrowly avoided having to say that this guy was the first federal judge I ever met with his own publicly accessible Twitter account.

Finally got to meet in person fellow Third Circuit Bar Association board member Matthew Stiegler, author of the "CA3 Blog," with whom I previously co-authored an article criticizing an opinion written by the most recent SCOTUS nomination runner-up.

Had lunch with the always fascinating law professor, law blogger, Twitter superstar, and former law clerk to Justice Anthony M. Kennedy Orin Kerr and got to discuss lots of really interesting stuff with him.

Got to say "hey" and share an electrical outlet with Jess Bravin of The Wall Street Journal without even realizing it until a day later. Next time I'm at a judicial conference and see a Jess Bravin look-alike, I will explore further.

Received a shout-out from Justice Alito during his fireside chat, as noted here and here. According to a longtime Third Circuit judge in attendance at the conference, Justice Alito has been a loyal reader of "How Appealing" almost since this blog's creation nearly 15 years ago, and early on sent around an email to his Third Circuit colleagues suggesting that they too might enjoy reading the site.

Met the two most recent Third Circuit appointees, neither of whom I have yet had the privilege of appearing before in person.

Received an invite from a Third Circuit judge to speak at an event in Pittsburgh on Halloween. Sounds like a solid strategy to avoid consuming too much leftover candy at home.

Saw lots of old friends and met many new ones; realized I can enjoy attending a federal appellate court's judicial conference even if I'm not among the speakers/panelists.
Posted at 10:00 AM by Howard Bashman

Saturday, April 22, 2017

"Forget Trump's first 100, what about Gorsuch's first 10?" Ariane De Vogue of has this report.
Posted at 10:32 PM by Howard Bashman

"Supreme Court Asked to Save Abbott and Costello 'Who's on First?' Copyright": Eriq Gardner has this post at the "THR, Esq." blog of The Hollywood Reporter.
Posted at 10:30 PM by Howard Bashman

"How Texas is beating the Supreme Court on abortion": Renuka Rayasam of has this report.
Posted at 10:25 PM by Howard Bashman

"Video Shows Judge on Hudson Shore Before Her Death": William K. Rashbaum has this article in today's edition of The New York Times.
Posted at 08:44 PM by Howard Bashman

"Neil Gorsuch and the State's Power to Kill": This editorial appears in today's edition of The New York Times.
Posted at 08:35 PM by Howard Bashman

"Whose money is it?: Clarence Thomas and the due process clause." David Post has this blog entry at "The Volokh Conspiracy."
Posted at 08:30 PM by Howard Bashman

"D.C. Circuit Review -- Reviewed: Knowing is Half the Battle." Aaron Nielson has this post today at the "Notice & Comment" blog of the Yale Journal on Regulation.
Posted at 08:23 PM by Howard Bashman

"New Justice on the Block: Gorsuch's first-day performance was self-assured -- and slightly irritating to his colleagues." Mark Joseph Stern recently had this jurisprudence essay online at Slate.
Posted at 03:08 PM by Howard Bashman

"How the Coming Church-State Showdown Could be Avoided: The Supreme Court has ample reason to avoid deciding a case that could erode the Establishment Clause." Law professor Garrett Epps has this essay online today at The Atlantic.

Online at Bloomberg View, law professor Noah Feldman has an essay titled "Church Playground Case Is a Constitutional Seesaw."

And online at The New Yorker earlier this week, Jeffrey Toobin had a post titled "The Conservative Agenda for Gorsuch's First Week."
Posted at 03:04 PM by Howard Bashman

Related Blogs
Especially Appealing Blogs

Above the Law



Appellate Advocacy Blog


Bench Memos

The BLT: The Blog of Legal Times

Civil Procedure & Federal Courts Blog

Concurring Opinions

The Confrontation Blog

Dorf on Law

Drug and Device Law

Election Law

Hercules and the umpire


Josh Blackman's Blog

Josh Gerstein's Blog

Jost on Justice

Just Security


Law News Now

Legal Theory




Religion Clause

Re's Judicata


Sentencing Law and Policy

TaxProf Blog

Threat Level + busblog

Trial Insider

The Volokh Conspiracy

Workplace Prof Blog's Law Blog