How Appealing


Monday, April 27, 2015

"PA high court reinstates Msgr. Lynn's child-endangerment conviction": Joseph A. Slobodzian of The Philadelphia Inquirer has a news update that begins, "Pennsylvania's Supreme Court on Monday reinstated the child-endangerment conviction of Msgr. William J. Lynn, the first Catholic Church official found guilty for his role supervising priests in the clergy sex-abuse scandal."

And The Associated Press reports that "Pennsylvania top court reinstates monsignor's conviction."

Today's ruling of the Supreme Court of Pennsylvania consists of a majority opinion and a dissenting opinion.
Posted at 05:47 PM by Howard Bashman




"SCOTUS to decide if 'unharmed' plaintiffs have right to sue": Alison Frankel's "On the Case" from Thomson Reuters News & Insight has this report today.
Posted at 05:38 PM by Howard Bashman




"Stage set for landmark U.S. Supreme Court gay marriage arguments": Lawrence Hurley of Reuters has this report.
Posted at 05:36 PM by Howard Bashman




"Dear John Letters: A taxonomy of gay marriage arguments aimed at Chief Justice John Roberts." Dahlia Lithwick has this jurisprudence essay online today at Slate.

In other jurisprudence essays recently posted online at Slate, Dahlia Lithwick and Mark Joseph Stern have an essay titled "Not All Must Rise: Many of the people who will witness Supreme Court history paid a ton for the privilege."

And Mark Joseph Stern has an essay titled "The Marriage Mastermind: How Evan Wolfson transformed American society."
Posted at 05:32 PM by Howard Bashman




"Taming the Butterflies Before a Supreme Court Argument; Lawyers in the same-sex marriage cases and veteran advocates reveal their routines": Marcia Coyle of The National Law Journal has this report today.

You can freely access the full text of the article via Google News.
Posted at 05:26 PM by Howard Bashman




"Philly judge sticks to $1 million sanction of lawyer": Chris Mondics of The Philadelphia Inquirer has this news update.
Posted at 04:56 PM by Howard Bashman




"Supreme Court Rejects Teva's Reglan Preemption Dispute": Emily Field of Law360.com has a report (subscription required for full access) that begins, "The U.S. Supreme Court on Monday rejected Teva Pharmaceuticals USA Inc.'s request to review a Pennsylvania appellate ruling that federal law did not preempt the product liability claims of thousands of generic Reglan users."
Posted at 03:28 PM by Howard Bashman




"Why Massachusetts Led the Way on Same-Sex Marriage": Jesse Wegman has this "Editorial Observer" essay in today's edition of The New York Times.
Posted at 03:12 PM by Howard Bashman




"Fourth Circuit Rules That Plaintiff in Appeal from Ex Parte TTAB Decision Must Pay ALL Expenses": John L. Welch has this post today at "The TTABlog" reporting on a ruling that a divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued last Thursday.
Posted at 01:35 PM by Howard Bashman




"In 'Slants' Case, Appeals Court Will Reconsider Opinion on 'Disparaging' Trademarks; The Federal Circuit chooses to wipe out an opinion issued last week regarding an Asian-American band": Eriq Gardner had this post today at the "Hollywood, Esq." blog of The Hollywood Reporter.

And at "The Volokh Conspiracy," Eugene Volokh has a post titled "Federal Circuit will rehear 'disparaging marks' trademark case about The Slants -- and the Redskins case may be affected."

You can access today's order of the U.S. Court of Appeals for the Federal Circuit granting rehearing en banc at this link.

The order granting en banc review orders the parties to file new briefs addressing the following issue:

Does the bar on registration of disparaging marks in 15 U.S.C. sec. 1052(a) violate the First Amendment?
The order also provides that amici may file briefs on rehearing en banc without having to obtain further leave of court.

My earlier coverage of the three-judge panel's ruling in this case, which issued one week ago today, can be accessed here and here.
Posted at 01:27 PM by Howard Bashman




"Sen. Chuck Grassley (R-IA) discusses cameras in the Supreme Court": C-SPAN has posted online this video clip today.
Posted at 01:16 PM by Howard Bashman




"How gay-marriage case was born of a divided Ohio": Amber Hunt and Keith BieryGolick of The Cincinnati Enquirer have this report. In addition, Hunt and Kevin Grasha have an article headlined "Need to knows about the Cincinnati same-sex marriage case."

Jessica Wehrman and Jack Torry of The Columbus Dispatch report that "Gay-marriage battle goes before Supreme Court on Tuesday."

Todd Spangler of The Detroit Free Press has an article headlined "Meet the lawyers who will face off in same-sex marriage case."

And Chad Livengood of The Detroit News reports that "Gay marriage case a race with time for Michigan couple."
Posted at 01:12 PM by Howard Bashman




"U.S. justices to weigh suit against people-search service Spokeo": Lawrence Hurley of Reuters has this report, along with an article headlined "U.S. top court throws out Obamacare contraception ruling."

Greg Stohr of Bloomberg News reports that "Business Bid to Curb Consumer Suits Gets Top U.S. Court Look."

And at "SCOTUSblog," Lyle Denniston has a post titled "Congress's power to permit lawsuits at issue."
Posted at 01:04 PM by Howard Bashman




"Gay-Rights Skeptic John Roberts Urged to Make Supreme Court History; The court hears arguments on Tuesday in a historic clash that may legalize gay marriage nationwide": Greg Stohr of Bloomberg News has this report.
Posted at 12:58 PM by Howard Bashman




"Court weighs excessive force against inmates awaiting trial": The Associated Press has this report.

You can access at this link the transcript of today's U.S. Supreme Court oral argument in Kingsley v. Hendrickson, No. 14-6368. Paul D. Clement argued the appeal for respondents.
Posted at 12:54 PM by Howard Bashman




"Lawyers Seek Sea Change on Gay Rights at Supreme Court": Adam Liptak will have this article in Tuesday's edition of The New York Times.
Posted at 10:24 AM by Howard Bashman




"Q&A: Issues, possible legal outcomes in gay marriage cases." Mark Sherman of The Associated Press has this report.

And on today's broadcast of NPR's "Morning Edition," Cokie Roberts had an audio segment titled "Same-Sex Supreme Court Case Raises Political Issues."
Posted at 10:16 AM by Howard Bashman




"As Dzhokhar Tsarnaev's defense begins, image matters": Patricia Wen and Milton J. Valencia of The Boston Globe have this report.

Laurel J. Sweet of The Boston Herald has an article headlined "Experts: Tsarnaev defense team may call brain researchers; The 'young & dumb' argument?"

The Associated Press reports that "Boston Marathon bomber's lawyers prepare case for life."

And Reuters reports that "Defense to begin arguments to spare Boston bomber's life."
Posted at 10:14 AM by Howard Bashman




"Dickie Scruggs: A 2nd chance; Mississippi's famed trial lawyer-turned-felon grants his first post-prison interview." Emily Le Coz of The Clarion-Ledger of Jackson, Mississippi has this report.
Posted at 09:50 AM by Howard Bashman




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

In early news coverage, The Associated Press reports that "High court to consider lawsuits over personal data"; "High court to consider time limits for discrimination claims": and "High court rejects appeal from protester at military base."
Posted at 09:35 AM by Howard Bashman




"Justice Kennedy's long road from Sacramento to landmark gay marriage case": David G. Savage of The Los Angeles Times has this report.
Posted at 08:40 AM by Howard Bashman




"Same-Sex Marriage, In The Justices' Words": Nina Totenberg had this audio segment on today's broadcast of NPR's "Morning Edition."

The Washington Times has articles headlined "Gay marriage advocates expect Supreme Court to rule in their favor; Justices to hear oral arguments in four cases on Tuesday" and "Supreme Court gay marriage cases: What to expect."

Today's edition of The Knoxville News Sentinel contains a front page article headlined "Local residents ready for Supreme Court same-sex marriage arguments."

The Arizona Republic reports that "Arizona gay-rights groups look beyond Supreme Court."

And online at The Atlantic, law professor Garrett Epps has an essay titled "Gay Marriage Gets Its Day in Court: The question is less whether the Supreme Court will affirm the right to same-sex unions than how it will choose to do so."
Posted at 08:25 AM by Howard Bashman




"Lawyers donate thousands of dollars to Pennsylvania Supreme Court race": Melissa Daniels has this front page article in today's edition of The Pittsburgh Tribune-Review.
Posted at 08:20 AM by Howard Bashman




"The Engineer's Lament: Two ways of thinking about automotive safety." Malcolm Gladwell has this "Dept. of Transportation" article in the May 4, 2015 issue of The New Yorker.
Posted at 08:17 AM by Howard Bashman




"Roberts at 10: Roberts and the Fourth Amendment -- A Mostly Pro-Government Vote with Some Important Exceptions." Brianne Gorod has this report online at the Constitutional Accountability Center.
Posted at 08:14 AM by Howard Bashman




Sunday, April 26, 2015

"Supreme Court's Simple Marriage Case Questions Lead To Complex Arguments; A look at the legal issues set to be debated before the justices on Tuesday": Chris Geidner of BuzzFeed News has this report.
Posted at 11:58 PM by Howard Bashman




"After a public shaming, reclaiming my dignity": Law professor Lisa T. McElroy had this essay online Friday at The Washington Post.

Update: At "Above the Law," David Lat has this post about the essay.
Posted at 11:44 PM by Howard Bashman




"U.S. Supreme Court to consider constitutionality of Oklahoma's death penalty; On Wednesday, the U.S. Supreme Court will hear oral arguments on the state's execution protocol, specifically the use of one of the three drugs in Oklahoma's lethal cocktail; The court's decision could have a lasting impact on the use of the drug across the country": Graham Lee Brewer of The Oklahoman has this report.
Posted at 10:57 PM by Howard Bashman




"Supreme Court's Defining Moment on Marriage": Kenneth Jost has this post today at his blog, "Jost On Justice."
Posted at 10:52 PM by Howard Bashman




"Boies, Dershowitz duel in defamation case concerning sex trafficking claims": David Ingram of Reuters recently had this report.

And at "Above the Law," Tamara Tabo has a post titled "The Latest Legal Superstar To Collide With Alan Dershowitz: David Boies."
Posted at 10:08 PM by Howard Bashman




"G.O.P. Struggling With Shifts on Gay Marriage": Adam Nagourney will have this article in Monday's edition of The New York Times.
Posted at 09:40 PM by Howard Bashman




"Judge Robert Sweet, 92, Finds Balance on the Ice and the Bench": Corey Kilgannon has this "Character Study" in today's edition of The New York Times.
Posted at 09:25 PM by Howard Bashman




"New California Supreme Court surprises analysts early on": In today's edition of The Los Angeles Times, Maura Dolan has an article that begins, "When Gov. Jerry Brown's two latest nominees joined the California Supreme Court in January, legal analysts foresaw the creation of a more liberal majority."
Posted at 09:02 PM by Howard Bashman




"Old battle lines drawn anew in Kansas; In state where 'separate but equal' died, governor's bet on supply-side economics imperils school gains": This front page article appears in today's edition of The Boston Globe.
Posted at 08:44 PM by Howard Bashman




"Sorry grandma! That $42 million slot machine jackpot was a computer glitch; Actually, you won just $1.85." David Kravets of Ars Technica has this post today about a ruling that the Supreme Court of Iowa issued on Friday.

And in other coverage, The Associated Press has a report headlined "Court: Iowa casino doesn't have to pay $41M jackpot error."
Posted at 08:37 PM by Howard Bashman




"Justices Kennedy and Scalia and their decades-long argument on gay rights": Robert Barnes will have this article in Monday's edition of The Washington Post.

Jess Bravin of The Wall Street Journal has an article headlined "History Suggests Kennedy Holds Key to Gay-Marriage Case; Justice could provide decisive vote if Supreme Court rules same-sex couples have constitutional right to marry."

Richard Wolf of USA Today reports that "Long courtship leads to high court's altar for gay marriage."

Joan Biskupic of Reuters reports that "Top U.S. court appears on cusp of declaring right to gay marriage."

Warren Richey of The Christian Science Monitor has an article headlined "At last, Supreme Court hears same-sex marriage cases. Will history be made?"

Maureen Groppe of The Indianapolis Star reports that "Once-vocal Indiana now silent on gay marriage bans."

Kent Faulk of The Birmingham News reports that "U.S. Supreme Court takes up gay marriage question Tuesday; what does it mean for Alabama?"

Stacey Barchenger of The Tennessean has an article headlined "Memphis couple says military life fuels marriage equality fight."

The Hill has an article headlined "Arkansas governor: Same-sex marriage case too close to call."

Karyn Bruggeman of National Journal has an article headlined "The One Election Where Gay Marriage Is Still a Political Liability for Democrats: Republicans could use the issue to paint Jack Conway, the Democratic candidate for governor in Kentucky, as too liberal for the state."

And online at The Los Angeles Times, Roberta Kaplan has an essay titled "Evolving awareness is cause for same-sex-marriage optimism in court."
Posted at 08:30 PM by Howard Bashman




"'Guantanamo Diary' goes Through the Looking Glass": Carol Rosenberg of The Miami Herald has this report.
Posted at 05:53 PM by Howard Bashman




"Justices to Hear Challenge to Lethal-Injection Drug": Erik Eckholm will have this article in Monday's edition of The New York Times.

And Jon Herskovitz of Reuters reports that "Oklahoma lethal injection drug faces U.S. Supreme Court test."
Posted at 05:52 PM by Howard Bashman




"Let's talk about Justice Ruth Bader Ginsburg's fishnet gloves": Erin C.J. Robertson had this entry recently at the "Reliable Source" blog of The Washington Post.
Posted at 05:48 PM by Howard Bashman




"Same-sex marriage: The decisive questions." Lyle Denniston has this post today at "SCOTUSblog."
Posted at 05:45 PM by Howard Bashman




"Dallas author has a hit list when it comes to legalese": In today's edition of The Dallas Morning News, business columnist Cheryl Hall has an article that begins, "Bryan Garner has killer instincts when it comes to legal jargon."
Posted at 05:43 PM by Howard Bashman




Saturday, April 25, 2015

"Crazy in Alabama: The Judicial Process and the Last Stand Against Marriage Equality in the Land of George Wallace." Law professor Howard M. Wasserman has posted this essay online at SSRN (via "Legal Theory Blog").
Posted at 11:33 PM by Howard Bashman




"Gay Marriage Case Caps Cincinnati's Shift From Conservative Past": Sheryl Gay Stolberg will have this article in Sunday's edition of The New York Times.
Posted at 11:28 PM by Howard Bashman




"Pa. justices to consider murky case on charities": Natasha Lindstrom of The Pittsburgh Tribune-Review has an article that begins, "The Pennsylvania Supreme Court is taking up an unusual case spurred by a lawyer who tried to expose a nonprofit client she believed had illegally steered charitable funds into private pockets."

I previously noted the Pa. Supreme Court's grant of review in this case in a post captioned "Redacted v. Redacted."
Posted at 11:25 PM by Howard Bashman




"Days Before Marriage Arguments, Dozens Wait For A Seat In The Supreme Court": Chris Geidner of BuzzFeed News has this report.
Posted at 11:14 PM by Howard Bashman




"Uncle Luke Recalls Supreme Court Battle Over 2 Live Crew's Music": HipHopDX has this report.
Posted at 11:11 PM by Howard Bashman




"Here's why this year's Supreme Court campaign is the most important race you're not watching": Columnist John L. Micek of The Patriot-News of Harrisburg, Pennsylvania has this essay online.
Posted at 11:07 PM by Howard Bashman




"Same-sex marriage hinges on U.S. Supreme Court decision": Bob Egelko of The San Francisco Chronicle has this report.

The Cleveland Plain Dealer reports that "Upcoming same sex marriage case at U.S. Supreme Court could extend rights to gay Ohioans."

The Tampa Bay Times reports that "Florida still sorting out gay marriage issues as U.S. Supreme Court prepares to hear case."

And The State of Columbia, South Carolina reports that "SC issues mirrored in same-sex marriage cases before Supreme Court."
Posted at 10:45 PM by Howard Bashman




"Four lawyers take on history in Supreme Court gay marriage case": Catherine Ho of The Washington Post has an article that begins, "When the Supreme Court hears arguments Tuesday on same-sex marriage, they will come from four people that many Americans probably have never heard of: attorneys Mary Bonauto, Douglas Hallward-Driemeier, John Bursch and Joseph Whalen."

And Stephanie Condon of CBSNews.com reports that "Four days early, line forms at Supreme Court for gay marriage case."

The Twitter feed titled Equality Case Files is providing ongoing coverage of the wait in line for seats to observe next Tuesday's U.S. Supreme Court oral argument.
Posted at 04:53 PM by Howard Bashman




"Republicans debate keeping ObamaCare subsidies until 2017": The Hill has a report that begins, "Congressional Republicans are locked in a debate about whether to temporarily keep in place the ObamaCare subsidies that are at risk of being struck down at the Supreme Court. More than a half-dozen competing plans have already been put forward in response to the King v. Burwell case, and Republicans are anxious to unify behind one before the ruling comes down in June."
Posted at 01:57 PM by Howard Bashman




"On eve of Supreme Court arguments, judge refuses to dismiss Alabama gay marriage lawsuit": Brendan Kirby of The Mobile Press-Register has this report.

You can access here and here Thursday's orders of the U.S. District Court for the Southern District of Alabama denying motions to dismiss.
Posted at 01:53 PM by Howard Bashman




"Senators Introduce Anti-Aaron's Law To Increase Jail Terms For 'Unauthorized Access' To Computers": Mike Masnick had this post Thursday at TechDirt.
Posted at 01:42 PM by Howard Bashman




"Gay marriage pioneer, free from skeptics, prepares for Supreme Court": Richard Wolf of USA Today has this report.

Mark Sherman of The Associated Press reports that "Same-sex marriage pioneer among lawyers for high court cases."

NPR has posted online a podcast titled "Pop-Up Podcast: Same-Sex Marriage And The Supreme Court" featuring, among others, Nina Totenberg and Tom Goldstein.

And the ABC News program "This Week" has posted online an item headlined "Same-Sex Marriage Hearings at the Supreme Court: What You Need to Know."
Posted at 01:38 PM by Howard Bashman




"Federal Appellate Briefs Might Have to Be Shorter": Saranac Hale Spencer will have this article in Monday's edition of The Legal Intelligencer. You can freely access the full text of the article via Google.
Posted at 01:30 PM by Howard Bashman




"Argument preview: Execution methods: broad or narrow look?" Lyle Denniston of "SCOTUSblog" has this post today.
Posted at 01:23 PM by Howard Bashman




Friday, April 24, 2015

"Federal appeals court dismisses lawsuit in Border Patrol shooting of Juarez teen; Agent shot and killed teen in 2010": Daniel Borunda of The El Paso Times has this news update.

And The Associated Press has a report headlined "Court: Family of teen shot across border can't sue in US."

You can access today's en banc ruling of the U.S. Court of Appeals for the Fifth Circuit at this link.
Posted at 10:20 PM by Howard Bashman




Access online the audio from this week's three U.S. Supreme Court oral arguments: Via this link.
Posted at 02:46 PM by Howard Bashman




"Alberta judge grants Omar Khadr bail pending appeal": Sean Fine of The Toronto Globe and Mail has this news update.

And The Edmonton Journal has a news update headlined "Former Guantanamo Bay inmate Omar Khadr to be released on bail."
Posted at 01:46 PM by Howard Bashman




"Appeals court upholds dismissal of libel suit by Abbas' son": Sam Hananel of The Associated Press has this report on a ruling that the U.S. Court of Appeals for the D.C. Circuit issued today.
Posted at 01:42 PM by Howard Bashman




"Arpaio: PI hired to investigate judge's wife." Megan Cassidy of The Arizona Republic has an article that begins, "In a bombshell diversion from his contempt-of-court proceedings, Maricopa County Sheriff Joe Arpaio testified under oath Thursday that his attorneys had hired a private agent to investigate the wife of the federal judge who ruled that the Sheriff's Office had engaged in racial profiling."

And The Associated Press reports that "Arizona sheriff reveals investigation into judge's wife."
Posted at 01:38 PM by Howard Bashman




"Bill would create ethics code for Supreme Court justices": The Hill has this report.
Posted at 01:25 PM by Howard Bashman




Justices' Questions, Answered: Previously on Same-Sex Marriage Arguments at the Supreme Court . . . Law professor Kenji Yoshino has this jurisprudence essay online at Slate.
Posted at 01:23 PM by Howard Bashman




"Meet the lawyers who will argue the gay marriage case": Ariane de Vogue of CNN.com has this report.

And Oralandar Brand-Williams of The Detroit News has articles headlined "Same-sex marriage case in court: Attorney John Bursch" and "Same-sex marriage case in court: Attorney Mary Bonauto."
Posted at 01:20 PM by Howard Bashman




"King: Ban federal courts from overturning traditional marriage laws." The Des Moines Register has an article that begins, "U.S. Rep. Steve King, R-Kiron, has introduced a bill in Congress that would ban federal judges from ruling on lawsuits aimed at overturning state bans on same-sex marriage."
Posted at 01:18 PM by Howard Bashman




"Alabama married same-sex couples caught in limbo": The Montgomery Advertiser has this report.
Posted at 01:16 PM by Howard Bashman




"Gay marriage defies opinions of American majority, legal brief tells Supreme Court": Cheryl Wetzstein of The Washington Times has this report.
Posted at 01:14 PM by Howard Bashman




"Tennessee at forefront as gay marriage case goes to Supreme Court": The Tennessean has this report.
Posted at 01:12 PM by Howard Bashman




"John Roberts' big moment: Will he anger conservatives again?" Ariane de Vogue of CNN.com has this report today.
Posted at 01:09 PM by Howard Bashman




"How a Cincinnati judge could shape the gay marriage case": Ariane de Vogue of CNN.com today has a report that begins, "Judge Jeffrey Sutton doesn't have a lot of company on the appeals courts these days."
Posted at 10:27 AM by Howard Bashman




"ESPN Beats Pro Wrestler in Dispute Over Rebroadcast of Old Matches; An appellate ruling could be a good sign for broadcasters as they fight in court with college athletes": Eriq Gardner had this post yesterday at the "Hollywood, Esq." blog of The Hollywood Reporter.

You can access Wednesday's per curiam ruling of the U.S. Court of Appeals for the Eighth Circuit at this link.
Posted at 08:32 AM by Howard Bashman




"End the Supreme Court's Ban on Cameras": Jonathan Sherman has this op-ed in today's edition of The New York Times.
Posted at 08:27 AM by Howard Bashman




FRAP Advisory Committee agrees to scrap "3-day rule" for responding to documents served by electronic means: Also yesterday, after much discussion, the FRAP Advisory Committee agreed to approve an amendment that would eliminate the extra three days that the FRAP now provide for responding to documents served through electronic means, including via CM/ECF.

A similar change is scheduled to go into effect in the procedural rules applicable to district and bankruptcy courts. However, appellate attorneys on the FRAP Advisory Committee expressed concerns that the 14-day period for filing a reply brief is a uniquely short time for filing such an important document. As a result, the FRAP Advisory Committee plans to consider in the very near future whether the 14-day period for filing a reply brief should be extended to 17 or 21 days. In addition, the FRAP Advisory Committee intends to send a letter to the chief judges of all the U.S. Courts of Appeals explaining that expanding the time for reply briefs will remain under consideration, and that courts should consider continuing to afford 17 days in which to file reply briefs in the interim.

Lastly, the FRAP Advisory Committee is encouraging the Standing Committee to include a statement in the comments encouraging courts to freely grant extensions when documents are served electronically late at night or late at night before a weekend or holiday weekend. However, because the elimination of the extra three days following e-service will go into effect in district courts and bankruptcy courts at the same time it goes into effect in appellate courts, such a comment will only be included in the FRAP if the comment is also deemed acceptable for inclusion with the rules governing district courts and bankruptcy courts. Already, certain of the advisory committees overseeing those other rules have expressed their opposition to adding such a comment.
Posted at 08:15 AM by Howard Bashman




Thursday, April 23, 2015

"Senate Confirms Loretta Lynch as Attorney General After Long Delay": Jennifer Steinhauer of The New York Times has an article that begins, "After one of the nation's most protracted cabinet-level confirmation delays, the Senate Thursday approved Loretta E. Lynch to be attorney general. She is the first African-American woman to hold the position."
Posted at 10:18 PM by Howard Bashman




"What Same-Sex Marriage Teaches About Social Change and the Supreme Court": Law professor Michael C. Dorf has this essay online at Justia's Verdict.

And at his "Dorf on Law" blog, he has a related post titled "What's at Stake in Next Week's SSM Oral Argument?"
Posted at 10:04 PM by Howard Bashman




"Constitution Check: Might the Supreme Court take a pass on same-sex marriage now?" Lyle Denniston has this post today at the "Constitution Daily" blog of the National Constitution Center.
Posted at 10:00 PM by Howard Bashman




Reader email regarding FRAP word limit reduction compromise: A reader emails:
I am an appellate practitioner in Texas who read with interest your summary of the proposed reduction of the briefing word limit. I am encouraged by the idea that, under the proposed new rule, appellate courts will grant leave for expanded word volume more readily. But I wonder whether any discussion occurred about disrupting current judicial attitudes.

For example, the Fifth Circuit requires a draft brief to be tendered with a motion to exceed the word limit, which must come ten days in advance of the brief due date. It is unclear if that draft must itself be over the default word limit or simply enough to show the complexity of the case. But, either way, this requirement stands as a practical disincentive to seeking an expansion. Attorneys may not wish to make public their unpolished drafts. Yet that may be unavoidable under this local rule, particularly when a case has been accelerated and a brief must be turned around in short order. Was there any discussion about advising circuit courts against local rules having the effect of disincentivizing motions for expanded words, or advising that the procedure for obtaining expanded words should allow that relief upon only a showing in a motion of good cause, without further obstacles?

Day two of the FRAP advisory committee's meeting will occur tomorrow morning, and I am posting this comment so that the committee may be able to take this concern into consideration at that time.
Posted at 09:48 PM by Howard Bashman




"Justices Drop Another Clue About Obamacare's Future": Law professor Noah Feldman has this essay online at Bloomberg View.
Posted at 09:44 PM by Howard Bashman




"BofA questions judge's impartiality as it appeals big fraud verdict": Jonathan Stempel and Nate Raymond of Reuters have this report.

And Alison Frankel's "On the Case" from Thomson Reuters News & Insight has a report titled "BofA 'Hustle' appeal tests Justice's novel use of old S&L statute."

You can access the 91-page, 20,900-word brief that Bank of America filed yesterday in the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 09:28 PM by Howard Bashman




"View from the Courtroom: Justices sometimes face off with each other in raisin case." Mark Walsh has this post at "SCOTUSblog."
Posted at 09:20 PM by Howard Bashman




"How Wall Street came out on gay marriage": Lawrence Hurley of Reuters has this report.
Posted at 09:14 PM by Howard Bashman




"Meet The Lawyer Who Set The Stage For Nationwide Marriage Equality": Sahil Kapur of TPM DC has a report that begins, "Paul M. Smith keeps a cutout of a 12-year-old Washington Post newspaper article on the wall of his law office near the White House."
Posted at 09:10 PM by Howard Bashman




"Monroeville board: No more 'To Kill a Mockingbird' after this year." Columnist John Archibald has this essay at AL.com.
Posted at 09:00 PM by Howard Bashman




"After court adjourns, 9th Circuit judge's movie nights are a hit": Maura Dolan has this front page article in today's edition of The Los Angeles Times.
Posted at 08:54 PM by Howard Bashman




A 13,000-word limit and easing expansions of that limit in cases meriting more words unanimously clears the Advisory Committee on Rules of Appellate Procedure after extended discussion: Today I was pleased to attend the FRAP advisory committee's meeting in Philadelphia, at which the committee considered, now that the comment period has concluded, the pending proposal to reduce the maximum word limit for federal appellate briefs from 14,000 words to 12,500 words.

The three lawyers in private practice on the committee each spoke during the initial round of discussion to oppose the reduction proposal, expressing somewhat differing degrees of opposition. The lawyer in private practice who serves as the Standing Committee's liaison to the the Appellate Committee spoke in favor of the word count reduction proposal. All four federal appellate judges on the committee spoke strongly in favor of the proposal.

Ultimately, the Appellate Committee's chair had a compromise ready to offer all concerned -- adopting a 13,000-word limit and adding into the rule's comments a statement urging federal appellate courts to recognize that in complicated cases, or cases involving multiple parties, those courts should ease their current reluctance to grant expansions of the word limit.

To be sure, the committee today approved a reduction of two-thirds of the amount of the reduction originally sought, which is not a compromise precisely in the middle between the current limit and the smaller word limit published for comment. However, setting the new word limit at 13,250 (and a corresponding reply brief limit of 6,625 words) -- representing the exact midpoint between those two options -- would result in word limits that are much more difficult to remember. And adopting a new word limit of 13,500 words wouldn't achieve much of a word count reduction, while likewise producing the still difficult-to-remember reply brief limit of 6,750.

A title for this post that I was originally contemplating would have stated, "Bad lawyers ruin it for themselves and for many of the rest of us." In essence, the comments that the judges on the committee made in favor of a word limit reduction focused largely on the unnecessary prolixity of so many of the briefs received in cases viewed as not very difficult, filed by lawyers who are not among the most talented appellate practitioners. To the extent that those lawyers' prolixity caused them to file briefs within the 13,001-word to 14,000-word range, such lawyers will now be limited to filing briefs not longer than 13,000 words. It may also end up that talented, well-known appellate advocates, and government lawyers, will have an easier time obtaining expansions of the word limits than lawyers who are unknown to the judges considering such motions.

If all goes as planned, appellate judges, once this amendment goes into effect, should become much more willing to grant word limit expansion motions. Whether the implementation of this amendment will cause federal appellate judges to conclude that their time is not being wasted as much by unnecessarily long briefs remains to be seen, especially since the percent of briefs being filed that fall between 13,001 words and 14,000 words is already quite small.

Four more things must occur before this rule amendment goes into effect. The Standing Committee must approve the amendment. The Judicial Conference of the United States must approve the amendment. The U.S. Supreme Court must sign-off on the amendment. And the U.S. Congress must refrain from vetoing the amendment.

Individual federal appellate courts will have the ability under the amendment to retain the current 14,000-word limit or any other limit larger than 13,000 words. My expectation, however, is that none of the 13 federal courts of appeals will opt-out of the word count reduction once it goes into effect.

Readers who wish to comment on today's developments are invited to send me an email for possible publication here. In addition, assuming that the word limit amendment takes effect, this blog will follow with interest reports from readers discussing the willingness of the various federal appellate courts to grant word limit expansions in individual cases and the delay involved in obtaining such expansions.
Posted at 07:50 PM by Howard Bashman




Wednesday, April 22, 2015

Programming note: During the day on Thursday, I will be observing the meeting of the Advisory Committee on Rules of Appellate Procedure in Philadelphia. As a result, new posts won't appear here until Thursday evening, although some new activity may appear in the interim on this blog's Twitter feed.

When new posts do appear here Thursday evening, I will report on the latest news regarding the pending FRAP briefing word limit reductions, which are on the advisory committee's agenda for further consideration tomorrow.
Posted at 11:20 PM by Howard Bashman




"Elizabeth Weaver, controversial Michigan justice, dies at 74": The Associated Press has this report.

And The Detroit News reports that "Former Supreme Court justice Weaver dies."
Posted at 09:46 PM by Howard Bashman




"Views of Supreme Court Little Changed as Major Rulings Loom; Ideological Divide in Views of Court's Ideology": The Pew Research Center has issued this news release. You can access the complete survey report at this link.
Posted at 09:44 PM by Howard Bashman




"Manufacturer asks DOC to return supplies of drug used in lethal injection": The Arizona Republic has an article that begins, "As the U.S. Supreme Court prepares to hear oral arguments next week that may prohibit the use of the drug midazolam in executions by lethal injection, at least one of the drug's manufacturers has asked the Arizona Department of Corrections to return the product to them."
Posted at 09:34 PM by Howard Bashman




"Supreme Court Justices Are Getting 'Grumpier,' Study Finds; Computer analysis of decisions going back to John Jay finds increasing dyspepsia and a 'lower grade level' of writing": Paul Barrett of Bloomberg News has this report.
Posted at 09:28 PM by Howard Bashman




"In Fourth Amendment cases, it's a toss-up": Orin Kerr has this post today at "The Volokh Conspiracy."
Posted at 09:15 PM by Howard Bashman




"Tsarnaev's Defense Tries to Recast Obscene Gesture": Katharine Q. Seelye will have this article in Thursday's edition of The New York Times.

And Milton J. Valencia, Kevin Cullen, Patricia Wen, and John R. Ellement of The Boston Globe have a news update headlined "Stories of pain and loss described at Marathon bombing trial."
Posted at 08:37 PM by Howard Bashman




"Appeals court overturns Barry Bonds' obstruction conviction": Bob Egelko of The San Francisco Chronicle has this report.

John Branch of The New York Times reports that "Barry Bonds's Obstruction of Justice Conviction Is Overturned."

Dan Levine of Reuters reports that "U.S. strikes out with prosecution of baseball great Barry Bonds."

And Peter Blumberg of Bloomberg News reports that "Barry Bonds Wins Appeal Voiding Conviction in Steroids Probe."
Posted at 08:26 PM by Howard Bashman




Access online the agenda book for tomorrow's meeting of the Advisory Committee on Rules of Appellate Procedure in Philadelphia: At this link. The meeting's agenda can be viewed here.

The committee's reporter, law professor Catherine T. Struve, has done her usual superlative job of summarizing both what's at issue and the comments received concerning the pending FRAP briefing word limit reductions. Perhaps the most interesting portion of the memo is the reporter's analysis of the comments received and the options now facing the committee.
Posted at 08:14 PM by Howard Bashman




"Supreme Court Hears Appeal in Raisin Case": Adam Liptak will have this article in Thursday's edition of The New York Times.

Robert Barnes of The Washington Post reports that "Raisin farmers appear poised to win challenge of New Deal-era program."

David G. Savage of The Los Angeles Times reports that "Supreme Court justices appear ready to rule against California raisin board."

Richard Wolf of USA Today reports that "High court may free raisin farmers from federal program."

Jess Bravin of The Wall Street Journal reports that "Supreme Court Skeptical of Decades-Old Raisin Program; Family challenges program requiring producers to turn over part of their crop to government." You can freely access the full text of the article via Google.

Michael Doyle of McClatchy Washington Bureau reports that "At Supreme Court, raisin rules get scoopful of arguments."

Jeremy P. Jacobs of Greenwire reports that "Supreme Court struggles with Calif. raisin farmer's takings case."

And Lyle Denniston of "SCOTUSblog" has a post titled "Argument analysis: Imagery overwhelms the facts."
Posted at 06:02 PM by Howard Bashman




"Don't Hold Your Breath For Souter's Papers": Tony Mauro has this post today at "The BLT: The Blog of Legal Times." You can freely access the full text of the post via Google News.
Posted at 05:48 PM by Howard Bashman







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