How Appealing


Wednesday, May 27, 2015

How to vote in this blog's survey of federal appellate judges on reducing the maximum length of briefs from 14,000 to 13,000 words: If you are a federal appellate judge, simply send me an email stating whether you SUPPORT or OPPOSE the proposal. This blog's email address is appellateblog@hotmail.com. This post will remain here at the top of this page until noon eastern time on Thursday, May 28, 2015, at which point voting will close. The results of this survey will be announced here at or before 2 p.m. eastern time tomorrow. Further details concerning this first ever "How Appealing" survey of federal appellate judges and the proposed FRAP brief length reduction amendment can be accessed in this post from earlier today.
Posted at 11:59 PM by Howard Bashman




"Presently, we consider the effectiveness of an anticipatory invocation of the Miranda-based right to counsel." So begins a majority opinion that the Supreme Court of Pennsylvania issued today. Today's decision holds that the anticipatory invocation of Miranda rights, communicated via fax to the Philadelphia Police Department and the Philadelphia District Attorney's Office while the defendant remained in Florida awaiting extradition, did not necessitate suppression of the defendant's uncounseled confession to police detectives following his return to Pennsylvania.

Only four Justices participated in the ruling. A total of three Justices joined in the majority opinion. One of those three also issued a concurring opinion. And the remaining Justice issued a dissent.
Posted at 03:33 PM by Howard Bashman




"After thoroughly reviewing the FISA materials, we have no hesitation concluding that probable cause under FISA existed under any standard of review." So holds a unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit in a ruling issued today in the case captioned United States v. Mahamud Said Omar.
Posted at 01:34 PM by Howard Bashman




"Health law court case winner could be political loser": The Associated Press has a report that begins, "The party that wins the impending Supreme Court decision on President Barack Obama's health care law could be the political loser."
Posted at 01:26 PM by Howard Bashman




"Leading the secret FISA court: Q&A with Judge Reggie Walton." CNN.com published this interview last Friday evening.
Posted at 12:58 PM by Howard Bashman




"Federal appeals court rejects Arkansas' 12-week abortion ban": The Associated Press has this report on a per curiam opinion that the U.S. Court of Appeals for the Eighth Circuit issued today.
Posted at 12:54 PM by Howard Bashman




Questioning the constitutionality of 18 U.S.C. sec. 2423(c), which makes it a federal crime for a U.S. citizen to sexually abuse a minor on foreign soil: You can access today's ruling of the U.S. Court of Appeals for the Sixth Circuit at this link. Only two of the three judges on the panel joined in the portion of the opinion described in the title of this post.
Posted at 12:48 PM by Howard Bashman




This blog's first ever (and, if unsuccessful, perhaps last ever) survey of federal appellate judges: Tomorrow and Friday in Washington, DC, the Committee on Rules of Practice and Procedure -- which sits atop the public proceedings in the federal rule amendment process -- will be meeting. Among the issues scheduled to be considered and acted on is the proposal to shorten the word limits for federal appellate briefs. You can view the agenda book for the meeting via this link, and the agenda book's discussion of this particular amendment begins here.

To summarize, currently the Federal Rules of Appellate Procedure allow a party's main brief on appeal to contain up to 14,000 words. The Advisory Committee on Appellate Rules proposed an amendment that would reduce the maximum length to 12,500 words. After significant opposition was received from experienced appellate practitioners, last month the Appellate Advisory Committee approved a compromise proposal providing that the maximum word length would be reduced to 13,000 words and that federal appellate courts would be encouraged by means of a comment to the rule to relax any existing impediments to granting extensions of the word limits so that extensions would be available in appropriately complex cases.

Earlier this month, I was fortunate to serve as the moderator of a panel at the Judicial Conference of the U.S. Court of Appeals for the Fifth Circuit. Although the Fifth Circuit is one of the busiest federal appellate courts in the nation, three active judges serving on that court informed me in connection with my attendance at the conference that they would prefer to keep the current 14,000-word limit for federal appellate briefs. This caused me to wonder about whether federal appellate judges on the whole in fact support the proposed word limit reduction amendment and, if so, to what degree.

Thus, starting now (at 11 a.m. eastern time today) and ending at 12 noon eastern time on Thursday, I am asking U.S. Court of Appeals judges who wish to be counted in this survey to send me an email from their work email address to this blog's email address [appellateblog@hotmail.com] stating simply whether they SUPPORT or OPPOSE the word limit reduction amendment in its current form. Not later than 2 p.m. tomorrow, I will publish the results of this survey here at "How Appealing." I will not identify by name, circuit, or in any other respect any judges who respond to this survey. I will, however, reprint verbatim any statement of explanation that anyone chooses to provide, but no response beyond a vote of SUPPORT or OPPOSE is requested or anticipated.

As matters currently stand, the vote is 6 federal appellate judges in favor of the amendment and 4 opposed. I will not be providing interim results before the final tally is announced at 2 p.m. eastern time tomorrow, so that current tally is based on votes that have been cast in my presence by currently serving U.S. Court of Appeals judges in advance of the official start of voting.
Posted at 11:00 AM by Howard Bashman




"By Reason of Insanity: The first successful use of the insanity plea was a high-profile murder trial that riveted antebellum America." Alexis Coe has this essay online at Lapham's Quarterly.
Posted at 10:22 AM by Howard Bashman




"When expert testimony isn't: Tainted evidence wreaks havoc in courts, lives; Across the country, the criminal justice system is grappling with the fallout from decades of faulty analysis in criminal cases that may have resulted in thousands of wrongful convictions." Henry Gass of The Christian Science Monitor has this report.
Posted at 10:12 AM by Howard Bashman




"FAC 5 (First Amendment Conversations) Madison Unplugged: A Candid Q&A with Burt Neuborne about Law, Life & His Latest Book." Ronald K.L. Collins has this post today at "Concurring Opinions."
Posted at 10:10 AM by Howard Bashman




"In Memoriam: Daniel J. Meltzer '75." Available here via Harvard Law Today.
Posted at 10:07 AM by Howard Bashman




"Are Federal Appellate Courts Growing Impatient with Procedural Errors? -- Risks for Clients and Their Counsel." The law firm of Schnader Harrison Segal & Lewis LLP has issued this Appellate Alert discussing several matters that are likely to be familiar to regular readers of this blog.
Posted at 09:45 AM by Howard Bashman




"Supreme Court to Consider How to Calculate Size of Voting Districts; Justices to consider whether eligible voters, not total population, should define districts": Jess Bravin has this article in today's edition of The Wall Street Journal.

In today's edition of The New York Times, Adam Liptak has a front page article headlined "Supreme Court Agrees to Settle Meaning of 'One Person One Vote.'"

Warren Richey of The Christian Science Monitor reports that "Supreme Court to examine if Texas districts violate one person, one vote."

The Los Angeles Times reports that "Supreme Court could deal California 'a one-two punch' on redistricting."

And in commentary, online at Slate law professor Richard L. Hasen -- author of the "Election Law Blog" -- has a jurisprudence essay titled "Only Voters Count? Conservatives ask the Supreme Court to restrict states' rights and overturn precedent."
Posted at 09:42 AM by Howard Bashman




Tuesday, May 26, 2015

"Anti-Gay Marriage Bill Gets Another Try": The Texas Tribune has this report.
Posted at 11:10 PM by Howard Bashman




"Gunfire from U.S., a death in Mexico. Can grieving family sue in U.S.?" Nigel Duara of The Los Angeles Times has this news update.

The Arizona Daily Star has a news update headlined "Appeals likely in deadly border-shooting case, hearing shows."

And The Arizona Republic has a news update headlined "Does Mexican boy killed by Border Patrol agent have constitutional rights?"
Posted at 10:52 PM by Howard Bashman




"Let Oracle own API's, Justice Dept tells top court in surprise filing": Jeff John Roberts of Fortune has this report. You can access the Solicitor General's amicus brief at this link.
Posted at 10:38 PM by Howard Bashman




"Sister Megan Rice, Freed From Prison, Is Unapologetic for Anti-Nuclear Activism": William J. Broad will have this article in Wednesday's edition of The New York Times.
Posted at 09:00 PM by Howard Bashman




"Supreme Court Rules on Whistle-Blower Case and Bankruptcy Judges": Adam Liptak will have this article in Wednesday's edition of The New York Times.

Katy Stech of The Wall Street Journal reports that "Supreme Court Backs Power of Bankruptcy Judges; Decision allows bankruptcy judges to make final decisions on matters if all parties consent." You can freely access the full text of the article via Google.

Tom Hals of Reuters reports that "Supreme Court ruling endorses role of bankruptcy judges."

The Associated Press reports that "Supreme Court clarifies power of bankruptcy judges."

And at Forbes.com, Daniel Fisher has a post titled "Sotomayor And Roberts Clash As Supreme Court Expands Power Of Bankruptcy Courts."
Posted at 08:20 PM by Howard Bashman




"High court to consider appeal over exclusion of black jurors": Sam Hananel of The Associated Press has this report.

Lawrence Hurley of Reuters reports that "U.S. justices to hear Georgia inmate's race claim over jury selection."

And The Guardian (UK) reports that "US supreme court to review murder case that excluded all potential black jurors."
Posted at 08:12 PM by Howard Bashman




"Agent who shot into Mexico, killed teen wants case dismissed": The Associated Press has a report that begins, "A federal judge is considering throwing out a civil rights lawsuit against a U.S. Border Patrol agent who fatally shot a teenager across the U.S.-Mexico border on grounds that the boy was in Mexico at the time and therefore wasn't protected by the U.S. Constitution."
Posted at 08:06 PM by Howard Bashman




"Nebraska Governor Vetoes Bill to Abolish Death Penalty": Julie Bosman of The New York Times has this news update.

The Lincoln Journal Star reports that "Ricketts vetoes death penalty repeal."

And The Omaha World-Herald reports that "Ricketts vetoes death penalty repeal bill; at least 1 senator flips and won't vote for override."
Posted at 07:56 PM by Howard Bashman




"Montana's rule on campaign contribution limits is headed back to court": Maura Dolan of The Los Angeles Times has this news update.

The Associated Press reports that "Appeals court sets high bar for states to limit donors' campaign contributions."

Courthouse News Service reports that "MT's Campaign-Donor Limits Still Up in the Air."

And at her "Trial Insider" blog, Pamela A. MacLean has a post titled "Montana Campaign Contribution Limits Get Second Chance."

You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 07:34 PM by Howard Bashman




"Obama administration asks U.S. top court not to hear Google copyright fight": Lawrence Hurley and Dan Levine of Reuters have a report that begins, "The Obama administration on Tuesday sided against Google Inc and said the U.S. Supreme Court should not hear the company's appeal in a case against Oracle Corp with wide implications for the technology industry, according to a court filing."
Posted at 06:03 PM by Howard Bashman




"Appeals court keeps immigration policy on hold": Lyle Denniston of "SCOTUSblog" has this post.

My earlier coverage of today's Fifth Circuit ruling appears at this link.
Posted at 05:33 PM by Howard Bashman




"Republicans grope for Obamacare replacement: An upcoming Supreme Court verdict complicates matters." Jennifer Haberkorn and Rachael Bade of Politico.com have this report.
Posted at 05:30 PM by Howard Bashman




"20-week abortion ban in West Virginia becomes law": The Associated Press has this report.
Posted at 05:28 PM by Howard Bashman




In the June 2015 issue of ABA Journal magazine: Mark Walsh has an article headlined "June is busting out all over with big-time SCOTUS decisions."

Kevin Davis has an article headlined "Faith and fiscal responsibility cause many conservatives to change their view of the death penalty."

And James Podgers has an article headlined "America's Magna Carta: The Great Charter sealed by King John of England in 1215 is widely viewed as a direct influence on liberties and constitutional democracy in the United States."
Posted at 05:22 PM by Howard Bashman




Majority on divided Fifth Circuit panel affirms preliminary injunction blocking implementation of President Obama's executive orders on immigration: You can access today's ruling of the U.S. Court of Appeals for the Fifth Circuit at this link.

In early news coverage, Julia Preston of The New York Times has a news update headlined "Appeals Court Denies Bid to Let Obama Immigration Plan Proceed."

The Los Angeles Times reports that "Federal court refuses to lift order halting Obama immigration programs."

Stephen Dinan of The Washington Times reports that "Federal appeals court deals blow to President Obama's amnesty."

The Associated Press reports that "Court won't lift hold on Obama immigration action."

Laurel Brubaker Calkins of Bloomberg News reports that "Obama Administration Loses Bid to Implement Immigration Orders."

And Adam B. Lerner and Josh Gerstein of Politico.com report that "Obama dealt another legal setback on immigration."
Posted at 02:13 PM by Howard Bashman




"U.S. top court rules against Cisco Systems in patent infringement fight": Lawrence Hurley of Reuters has this report.

And at "Patently-O," Dennis Crouch has a post titled "Commil v. Cisco: Belief-of-Invalidity not a Defense to Inducement."
Posted at 01:30 PM by Howard Bashman




"Supreme Court Sides With KBR, Halliburton on Lawsuit Time Limits; Court rules whistleblowers don't get extra time to file civil false-claims suits when the U.S. is at war": Brent Kendall of The Wall Street Journal has this news update.

Greg Stohr of Bloomberg News reports that "KBR, Halliburton Win at U.S. Supreme Court on Suit Deadlines."

And Lawrence Hurley of Reuters reports that "U.S. top court backs contractor KBR in Iraq whistleblower case."
Posted at 01:28 PM by Howard Bashman




"Supreme Court to hear challenge to Texas redistricting plan": Robert Barnes of The Washington Post has this news update.

David G. Savage of The Los Angeles Times has a news update headlined "Supreme Court to hear case that could change how voting districts are drawn."

Richard Wolf of USA Today reports that "Supreme Court to consider redefining 'one-person, one-vote' principle."

Michael Doyle of McClatchy Washington Bureau reports that "Supreme Court to hear Texas 'one man, one vote' case."

Michael Lindenberger of The Dallas Morning News reports that "Supreme Court to hear redistricting Texas case seeking to clarify one-person-one-vote."

Mark Sherman of The Associated Press reports that "Supreme Court to hear challenge over counting non-citizens in redistricting plans."

Lawrence Hurley of Reuters reports that "U.S. Supreme Court to hear Texas state Senate redistricting case."

Greg Stohr of Bloomberg News reports that "Supreme Court Accepts Urban-Rural Redistricting Case."

And at "SCOTUSblog," Lyle Denniston has a post titled "Major test on voter equality set for review."
Posted at 01:22 PM by Howard Bashman




Access online today's rulings of the U.S. Supreme Court in argued cases: The Court today issued rulings in three argued cases.

1. Justice Sonia Sotomayor delivered the opinion of the Court in Wellness Int'l Network Ltd. v. Sharif, No. 13-935. Justice Samuel A. Alito, Jr. issued an opinion concurring in part and concurring in the judgment. Chief Justice John G. Roberts, Jr. issued a dissenting opinion, in which Justice Antonin Scalia joined in full and Justice Clarence Thomas joined in part. And Justice Thomas issued a dissenting opinion. You can access the oral argument via this link.

2. Justice Alito delivered the opinion for a unanimous Court in Kellogg Brown & Root Services, Inc. v. United States, ex rel, Carter, No. 12-1497. You can access the oral argument via this link.

3. And Justice Anthony M. Kennedy delivered the opinion of the Court in Commil USA, LLC v. Cisco Systems, Inc., No. 13-896. Justice Thomas joined the majority opinion in part. And Justice Scalia issued a dissenting opinion, in which Chief Justice Roberts joined. Justice Stephen G. Breyer did not participate in the ruling. You can access the oral argument via this link.
Posted at 10:04 AM by Howard Bashman




"Pending Supreme Court Cases: Kimberly Robinson talked about pending Supreme Court rulings for the 2014-15 term." You can view the video of this segment from today's broadcast of C-SPAN's "Washington Journal" via this link.
Posted at 09:35 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 and noted jurisdiction in one appeal.
Posted at 09:32 AM by Howard Bashman




"Supreme Court to soon rule on 13 important cases": David G. Savage of The Los Angeles Times has this report.
Posted at 07:50 AM by Howard Bashman




Monday, May 25, 2015

"Maligned Study on Gay Unions Is Shaking Trust": Benedict Carey and Pam Belluck will have this front page article in Tuesday's edition of The New York Times.
Posted at 11:52 PM by Howard Bashman




"First Amendment experts weigh in on whether schools can suspend students for social media activity": The Tulsa World has this report.
Posted at 11:37 PM by Howard Bashman




"Health Costs Hinge on Supreme Court Ruling; Subsidies that made insurance plans affordable face a crucial test with decision expected in June": Stephanie Armour will have this article in Tuesday's edition of The Wall Street Journal. You can freely access the full text of the article via Google.
Posted at 11:35 PM by Howard Bashman




"Loving v. Virginia looms large in gay marriage case": Markus Schmidt had this article in Sunday's edition of The Richmond Times-Dispatch.
Posted at 11:10 PM by Howard Bashman




"Contested Words in Health Law May Have Been Left by Mistake": Robert Pear will have this front page article in Tuesday's edition of The New York Times.
Posted at 09:25 PM by Howard Bashman




"Third Circuit Creates Turmoil Over Certification; Appeals court won't rehear case that changes long-standing inquiry regarding class definition": Arthur H. Bryant has this essay in this week's issue of The National Law Journal.
Posted at 08:40 PM by Howard Bashman




"Committee approves new home for Supreme Court in Las Vegas": The Las Vegas Sun has this report.
Posted at 08:27 PM by Howard Bashman




"Presidential Candidates Continue to Take Shots at the Supreme Court; From gay marriage to Citizens United, there's plenty for the candidates on both sides of the political spectrum to complain about": David Knowles of Bloomberg News has this report.
Posted at 08:24 PM by Howard Bashman




"Appeals court focuses on Virginia death row inmate's ability to handle daily tasks": The Associated Press has a report that begins, "Arguments in a federal appeals court suggest that a Virginia death row inmate's claim that he can't be executed because he is intellectually disabled could turn on his ability to handle everyday tasks."

You can access via this link (16.1 MB mp3 audio file) the audio of last week's oral argument in this case before a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit.
Posted at 10:14 AM by Howard Bashman




"TN Supreme Court to weigh public records case": Stacey Barchenger of The Tennessean has an article that begins, "A case pitting public records law and the privacy of crime victims and police evidence is before the Tennessee Supreme Court for consideration Thursday."
Posted at 10:07 AM by Howard Bashman




"What it cost Indiana to fight same-sex marriage": The Indianapolis Star has an article that begins, "The state paid more than $1.4 million in fees to plaintiffs' attorneys in five federal court cases that challenged -- and ultimately helped overturn -- Indiana's ban on same-sex marriages, according to the attorney general's office."
Posted at 10:00 AM by Howard Bashman




"Ruling may gut 'Obamacare,' but Republicans would feel the heat if millions lose subsidies": The Associated Press has this report.
Posted at 09:55 AM by Howard Bashman




Sunday, May 24, 2015

"Staging Scalia: The Originalist misses the point of originalism." Law professor John O. McGinnis has this essay online at City Journal.
Posted at 11:28 PM by Howard Bashman




"Plaintiffs from Utah's landmark gay marriage case tie the knot": Jennifer Dobner of The Salt Lake Tribune has a news update that begins, "The couple at the center of the historic federal lawsuit that overturned Utah's ban on same-sex marriage in 2013 tied the knot on Sunday in a public wedding ceremony at the Gallivan Center in the heart of Salt Lake City."
Posted at 09:00 PM by Howard Bashman




"For-Profit and Non-profit Organizations Should Enjoy the Same Civic Rights": John O. McGinnis has this post today at the "Library of Law and Liberty" blog.
Posted at 04:00 PM by Howard Bashman




"Ohio House bill would ban abortions spurred by diagnosis of Down syndrome": Today's edition of The Columbus Dispatch contains a front page article that begins, "Ohio could become the second state to ban women from having an abortion because of a fetal diagnosis of Down syndrome."
Posted at 11:45 AM by Howard Bashman




"Arizona Legislature, Congress at odds on redistricting": Rebekah L. Sanders of The Arizona Republic has this report.
Posted at 11:44 AM by Howard Bashman




Saturday, May 23, 2015

Second Circuit Clerk's Office, once again, has issues with keeping "under seal" opinion under seal: Nearly eight years ago, I was involved in one such incident, detailed here, here, and here.

Something similar happened once again yesterday. As I previously noted in this post, yesterday the Second Circuit issued an order in a case of public interest stating that the court's opinion was filed under seal and would be issued next Tuesday, possibly in redacted form after the parties have received an opportunity to suggest any desired redactions.

Late yesterday, however, Reuters published a revised version of its article headlined "Actavis cannot drop old version of Alzheimer's drug -- appeals court." According to that article, "The decision was filed under seal, but a copy was provided to a Reuters reporter by a member of the court clerk's office upon request." It is certainly remarkable that the Second Circuit's Clerk's Office would apparently provide a news reporter with a copy of an under-seal opinion not scheduled for public release until next Tuesday -- and subject to redaction in the interim before public release -- merely because the reporter asked to see a copy of the opinion.
Posted at 10:14 PM by Howard Bashman




"Non-profit brings voting rights campaign to V.I." Today's edition of The Virgin Islands Daily News contains an article that begins, "Quirks of federal law and a century-old U.S. Supreme Court ruling about the shipment of oranges keep residents of territories like the U.S. Virgin Islands from having the right to vote in presidential elections."
Posted at 09:26 PM by Howard Bashman




"In new open records case, Thomas Woznicki invokes 'the Woznicki rule'": Bruce Vielmetti has this front page article in today's edition of The Milwaukee Journal Sentinel.
Posted at 09:21 PM by Howard Bashman




"Strict sentences come under fire in Pa. courts": Riley Yates of The Morning Call of Allentown, Pennsylvania has this report.
Posted at 09:16 PM by Howard Bashman




"Local attorney on mission to win legal status, freedom for chimps": The South Florida Sun Sentinel of Fort Lauderdale has this report.
Posted at 09:12 PM by Howard Bashman




"As Americans become more liberal, will Supreme Court follow on gay marriage?" Brad Knickerbocker of The Christian Science Monitor has this report.
Posted at 12:52 PM by Howard Bashman




Friday, May 22, 2015

"Supreme Court of Canada orders new trial in child porn case; Donny Barabash, Shane Rollison of Alberta were originally acquitted of making child pornography as videos were consensual and for private use": The Toronto Star has this news update.

Sean Fine of The Toronto Globe and Mail has a news update headlined "Supreme Court ruling blocks adults from exploiting apparent teen consent."

National Post has a news update headlined "Sex with 14-year-olds legal in 2008, but probably not while videotaping it in a crack house: top court."

And The Canadian Press reports that "Supreme Court orders new trial for Alberta men who made sex tapes of 14-year-old runaways."

You can access today's ruling of the Supreme Court of Canada at this link.
Posted at 10:54 PM by Howard Bashman




"Crooks says Roggensack threatened to throw justices off cases": Patrick Marley of The Milwaukee Journal Sentinel has a news update that begins, "Days before three state Supreme Court justices skipped ceremonies to admit new lawyers to the bar, Justice N. Patrick Crooks accused newly elected Chief Justice Patience Roggensack of breaking court rules by threatening to throw him off a case without any authority."
Posted at 05:09 PM by Howard Bashman







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