Get your scorecard here: The U.S. Supreme Court‘s “Day Call” for April 1, 2003 — reflecting the order of oral arguments in the University of Michigan racial preferences in student admissions cases and who will be arguing when — is accessible here.

Posted at 23:55 by Howard Bashman

U.S. Supreme Court round-up for Monday, March 31, 2003: The Supreme Court of the United States issued two opinions today, bucking its usual practice of not issuing opinions on a Monday during a week when cases are being argued. The reason for the Court’s usual practice is to allow the order list to have the spotlight all to itself on Monday, to be followed on Tuesday and sometimes Wednesday by the issuance of opinions. This week, however, the eagerly anticipated University of Michigan racial preferences in university admissions cases are being argued on Tuesday (yes, I mean tomorrow!), and the Court obviously believes that those oral arguments should not be delayed by, or subject to distraction from, the announcement of opinions. Whether today’s opinions — if they had issued tomorrow — really stood any chance of distracting attention away from tomorrow’s oral arguments is a question that each of us must decide individually, but I vote “no.” Indeed, the only distracting aspect of today’s rulings was that Justice Clarence Thomas in both cases voted opposite from the way that Justice Antonin Scalia voted. Today’s opinions involved the dischargeability in bankruptcy of an obligation incurred in settling a claim of fraud, and whether a three-judge federal district court in Mississippi acted lawfully in drawing that State’s new congressional districts when the State failed to do so in time for the 2002 election.

1. Although the goal of bankruptcy is to provide the debtor with a fresh start, not all debts are dischargeable. In particular, any debt for money, property, or services to the extent obtained by fraud are nondischargeable in bankruptcy. In Archer v. Warner, No. 01-1418 (U.S. March 31, 2003), the Court confronted an interesting set of facts. In 1992, the Warners sold to the Archers a business. A few months later, the Archers sued the Warners for fraud in connection with the sale. In 1995, the parties reached a settlement of the litigation. The Warners agreed to pay the Archers $300,000 less certain expenses “as compensation for emotional distress/personal injury type damages” in exchange for releases of all claims and no admission of liability. After the Warners had paid all but $100,000 of the settlement, the Warners defaulted on the remaining balance. As a result, the Archers brought suit to collect on the settlement agreement in state court, and the Warners filed for bankruptcy. The question thus arose whether the $100,000 debt owed on the settlement was a nondischargeable debt for money or property obtained by fraud or whether it was simply an unsecured contractual claim arising under the settlement agreement that was subject to discharge in bankruptcy. A divided panel of the U.S. Court of Appeals for the Fourth Circuit ruled 2-1 (you can access the opinion here) that the settlement obligation was dischargeable in bankruptcy. Because this question had split the circuits, the Supreme Court granted review.

Today, by a vote of 7-2, the Court held that the existence of the settlement did not prohibit the Archers from establishing that the amount still owed on the settlement represented a debt for money or property obtained by fraud because the settlement agreement was entered into in satisfaction of a fraud claim. In other words, even if the act of settling the case was not fraudulent, the debt that the settlement evidences is nondischargeable if the claim giving rise to the settlement debt would have produced a nondischargeable judgment had the claim been successfully litigated to a conclusion. Justice Stephen G. Breyer wrote the majority opinion, in which the Chief Justice and Justices O’Connor, Scalia, Kennedy, Souter, and Ginsburg joined. Justice Clarence Thomas wrote a dissenting opinion, in which Justice Stevens joined. The dissent argued that the doctrine of novation caused the fraud claim, once settled, to transform into a contractual obligation. And contractual obligations, of course, are dischargeable in bankruptcy.

Today’s ruling represented the second trouncing at the hands of the Court that attorney Donald B. Ayer (argument transcript here) has received in cases involving the dischargeability in bankruptcy of debts relating to fraud. The earlier case was a 9-0 loss in Cohen v. De La Cruz. If it’s any consolation, I happen to think that the Court reached the wrong conclusion in both cases, although I might be a bit biased in the Cohen case because I too worked on petitioner’s behalf in that case while it was pending before the Court.

2. The other case that the Court decided today was Branch v. Smith, No. 01-1437 (U.S. Mar. 31, 2003). After Mississippi lost one seat in the U.S. House of Representatives as a result of the 2000 census, it was necessary for the State to redraw its congressional map. When the State failed to come up with a redistricting plan that was capable of receiving the necessary approval from the U.S. Department of Justice in time to take effect for the 2002 elections, a three-judge U.S. District Court panel for the U.S. District Court for the Southern District of Mississippi implemented its own replacement congressional districts.

In today’s decision, the Court addressed two main issues. First, the Court unanimously concluded that the federal district court properly acted in the absence of a state-sponsored plan that would have gone into effect in time for the 2002 elections. Next, the Court confronted the much more challenging question of whether federal law allowed the district court to implement single-member districts or whether an arguably conflicting provision of federal law required at-large elections. On this much more complicated question, the Court essentially split (4-3)-2, holding that the federal district court acted properly in drawing single member districts.

Justice Antonin Scalia wrote the opinion of the Court on the first point and announced the judgment of the Court on the second point. On the more complex point, Justice Scalia, joined by the Chief Justice and Justices Kennedy and Ginsburg, concluded that the provision requiring at-large elections applied only in exceptionally limited circumstances, none of which were present here. Justice Stevens filed an opinion concurring in the judgment, in which Justices Souter and Breyer joined, which concluded that the statute providing for single-member districts worked an implied repeal of the earlier statute providing for at-large elections. Justice Sandra Day O’Connor wrote a dissenting opinion, in which Justice Thomas joined. Justice O’Connor disagreed that any implied repeal had occurred and further disagreed that the at-large elections provision was inapplicable. Rather, she would have held that Mississippi under the circumstances of this case was required to hold at-large elections to fill its congressional delegation. Justice O’Connor’s dissenting opinion was noteworthy for the extent to which it relied on prior opinions and other writings of Justice Scalia as authority for its points. Of course, Justice O’Connor’s heavy reliance on Justice Scalia’s earlier writings somehow failed to convince Justice Scalia to adopt her view of the case, but it nevertheless made for some very interesting reading (at least for those of us who aren’t Justice Scalia).

And now it’s on to what’s sure to seem like non-stop coverage tomorrow of the University of Michigan racial preferences in student admissions cases.

Posted at 23:16 by Howard Bashman

Available online at law.com: Jason Hoppin reports here that “Court Tosses Out Suit Against Groups That Vet Judges for Bush.” From New York comes news that “Race at Issue in Opening Arguments of Gun Industry Trial.” And in other news from New York, you can access here an article entitled “Judicial Conduct Commission Fires Back After ‘Spargo'” and here an article entitled “Former Court of Appeals Judge Levine Defends Common Law Adjudication.” Finally for now, in news from the Third Circuit, Shannon P. Duffy has an article entitled “Courts May Sever Invalid Portions of Arbitration Agreement; Faulty provision need not invalidate entire agreement.”

Posted at 23:09 by Howard Bashman

Elsewhere in Monday’s newspapers: Today’s edition of The Los Angeles Times contains an article entitled “Justices to Reconsider Race in Admissions; In 1978, the high court upheld the use of race as a ‘plus factor’ in colleges’ choices. Now it will hear challenges to University of Michigan policy.” The newspaper also contains two related op-eds: Stuart E. Eizenstat has an essay entitled “Racial Preferences as Slavery Reparation; Michigan case opens broader questions”; and David J. Garrow has an essay entitled “Lessons From Affirmative Action’s Past.” In blogging-related news, a front page article is entitled “War Diary Spins Web of Intrigue; A mystery man’s descriptive dispatches about life in Baghdad grip Internet denizens. But is Salam Pax really in Iraq, or is he a hoax?” From Texas comes news that “DNA Lab’s Woes Cast Doubt on 68 Prison Terms; Forensic science at a Houston police unit was plagued by problems. The inmates for whom retesting is ordered include 17 on death row.” George Skelton’s Capitol Journal is entitled “Attorney General’s Office Is Catbird Seat for Gubernatorial Hopeful Lockyer.” And letters to the editor run under the heading “Free Speech Comes With Consequences.”

Today’s edition of The Washington Times reports here that “GOP stands by Frist amid Senate setbacks.” Frank J. Murray reports that “School’s $250,000 campaign gives both sides of race case.” Tom Bray has an op-ed entitled “Supreme benchmarks of diversity,” and Nat Hentoff has an op-ed entitled “Pro-lifers make their mark in the public square.”

The Boston Globe reports here that “Activist challenges the use of churches as polling places.” And USA Today contains an article entitled “Two suspected in post-9/11 plot; Second round of attacks may have been planned.”

Posted at 20:45 by Howard Bashman

“Supreme Court Considers Sex Crime Limits”: Gina Holland of The Associated Press has this report.

Posted at 20:40 by Howard Bashman

In case you didn’t already know: Anne Gearan of The Associated Press reports here that “O’Connor, Kennedy Key in Mich. Race Case.”

Posted at 17:11 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “Supreme Court Hears Indian Lands Case” and here an article entitled “Bush Won’t Appeal Calif. Oil Drilling Ban.”

Posted at 16:28 by Howard Bashman

Some federal judicial confirmation news and commentary from here and there: The Beaumont Enterprise last Friday published an editorial entitled “Senate should vote on Owen.” quepasa.com last Thursday published an article entitled “Hispanic lawmakers, activists support Bush judicial nominee.” Alfred P. Carlton Jr., the American Bar Association‘s current president, has an essay entitled “More and Faster–Now: The Crisis in the Federal Judiciary.” An op-ed by Linda Campbell in The Huron Daily Tribune notes that “The continuing Senate impasse over appellate court nominee Miguel Estrada signals grim prospects for sanity and civility should a Supreme Court retirement this spring open the door for the appointment of the first new justice in nine years.” And Wyatt Emmerich of The Northside Sun has an essay entitled “Activist judiciary is out of control.”

Posted at 16:25 by Howard Bashman

This week in the U.S. Senate: The U.S. Senate returns to work at this hour. Tomorrow, the Senate will convene at 9:30 a.m. and begin consideration of Timothy M. Tymkovich to be U.S. Circuit Judge for the Tenth Circuit. The Senate has scheduled six hours of debate on the nomination, and upon use or yielding back of time, the vote on confirmation will occur. It is also possible that the Senate may hold this week another cloture vote on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit.

Also tomorrow, the Senate Judiciary Committee will hold a hearing on judicial nominations beginning at 9 a.m. Ninth Circuit nominee Carolyn B. Kuhl is scheduled to have her confirmation hearing tomorrow, even though only one of California’s U.S. Senators has returned a “Blue Slip” concurring in the nomination. Of course, by having received at least one favorable Blue Slip, Judge Kuhl is much better off than the four Sixth Circuit nominees from Michigan. Both of Michigan’s U.S. Senators have returned negative Blue Slips as to all four of those nominees (see this chart for all the details).

Posted at 15:27 by Howard Bashman

More bad news for the younger of the two D.C.-area sniper suspects: The Associated Press reports here that “Sniper Case Judge OKs Family’s Testimony.”

Posted at 15:26 by Howard Bashman

An astonishing breach of courthouse confidentiality: National Public Radio‘s All Things Considered program on Saturday, March 29, 2003 aired a segment entitled “McCain-Feingold Bill Languishes.” The segment’s online description is:

When the McCain-Feingold Campaign Finance Law was signed into law, it was immediately challenged in court. Observers expected the case to be pending before the Supreme Court by now, but it’s not. NPR’s John Ydstie hears from NPR’s Legal Affairs Correspondent Nina Totenberg about the hold up.

You must hear the segment to believe it. You can access the segment (Real Player required) here. Update: Law Professor Rick Hasen has the transcript of the segment here at his “Election Law” blog.

Posted at 13:18 by Howard Bashman

“U.S. Courts Allowed to Shape Districts”: Gina Holland of The Associated Press has this report on one of the U.S. Supreme Court‘s two decisions issued today.

Posted at 11:27 by Howard Bashman

“Supreme Court Rejects Iran Terrorism Case”: The Associated Press has this report.

Posted at 11:01 by Howard Bashman

Today’s U.S. Supreme Court opinions and orders: The Court today issued two opinions. Justice Stephen G. Breyer delivered the opinion of the Court in Archer v. Warner (available here), in which the judgment of the U.S. Court of Appeals for the Fourth Circuit was reversed. And Justice Antonin Scalia announced the judgment of the Court in Branch v. Smith (available here), in which the judgment of the U.S. District Court for the Southern District of Mississippi (on direct appeal to the Court) was affirmed. You can access the oral argument transcript in Archer here and in Branch here.

The Court’s order list issued today is available here. The Court today did not grant review in any cases.

Posted at 10:00 by Howard Bashman

Tomorrow’s U.S. Supreme Court oral arguments in the University of Michigan cases: If you attend tomorrow’s U.S. Supreme Court oral arguments in the two cases that challenge the University of Michigan‘s use of racial preferences in student admissions, or if — like me — you merely listen to the broadcast of the oral argument audiotape, feel free to send along via email your impressions of the argument and predictions based on what you have seen and/or heard in the oral arguments. Chances are that “How Appealing” will be focused quite heavily on the University of Michigan cases tomorrow, and I look forward to posting interesting emails from readers who have attended or tuned in to the oral arguments.

If I were a U.S. Supreme Court Justice, I would ask Solicitor General Theodore B. Olson the following question: “If the Court concludes, contrary to the government’s position, that it is impossible to rule in the plaintiffs’ favor while adhering to Bakke, would the government favor a ruling in plaintiffs’ favor that overturns Bakke?”

Posted at 08:39 by Howard Bashman

On the agenda: The Supreme Court of the United States is expected to issue both orders and opinions at 10 a.m. this morning. Usually in a week when cases are being argued, the Court only issues orders on Monday and saves opinions for Tuesday and sometimes Wednesday. Yet in order to avoid distractions tomorrow, when the University of Michigan racial preferences in university admissions cases are to be argued, the Court is issuing opinions today instead of tomorrow. After today, the Court will next issue more opinions on Wednesday of this week.

Posted at 08:32 by Howard Bashman

Interesting law blog of the day: “The LitiGator.”

Posted at 08:30 by Howard Bashman

From the April 7, 2003 issue of The New Yorker: Louis Menand has an essay entitled “The Thin Envelope: Why college admissions has become unpredictable.” And in war-related coverage, you can access here Seymour M. Hersh’s article “Offense and Defense: The battle between Donald Rumsfeld and the Pentagon”; here a Letter from Baghdad by Jon Lee Anderson entitled “Ill Winds: Tomahawks, bunker busters, and dust storms afflict the Iraqi capital”; and here a Talk of the Town piece entitled “A Butcher from Baghdad.”

Posted at 08:16 by Howard Bashman

“U-M Admissions Cases: Analysis — Decision may emerge from middle; Kennedy, O’Connor are court’s swing votes”: Today’s edition of The Detroit Free Press contains this report. Meanwhile, The Michigan Daily reports here that “Rejected students speak out on ‘U’ rationale for achieving diversity,” here that “‘U’ admissions supporters stand by claims,” and here that “Line forms on steps of Supreme Court.” Also, Johanna Hanink has an op-ed entitled “After trial, campus will need to reevaluate.”

Posted at 06:20 by Howard Bashman

In Monday’s newspapers: In The Christian Science Monitor, Warren Richey has an article entitled “Court takes up racial preferences in landmark case; Debate Tuesday on affirmative action in college admissions will have big impact.”

In The New York Times, Adam Liptak reports on a case that arose in the suburbs of Philadelphia in an article entitled “Suit Challenges Right to Report Political Slurs.” He also is the co-author of an article entitled “Groups Fault Rule on Automatic Detention.” And Adam Cohen has an Editorial Observer column entitled “Why the Supreme Court Needs to Visit Cass High School.”

Finally for now, The Washington Post contains an op-ed by Richard D. Kahlenberg entitled “Affirmative Action: There’s a Third Way.”

Posted at 00:10 by Howard Bashman

An email from one of Philadelphia’s most highly regarded appellate lawyers in criminal matters: I received the following email yesterday entitled “2003 Amendments to Federal Rules of Appellate Procedure”:

Really, Howard, I’m disappointed in you! Negligible?? As of December 1, 2003, the appellate forms are amended to replace “19__” with “20__” in the date lines. The three years’ deliberation that went into announcing this change is itself a cause for admiring comment, to say nothing of the firm and courageous grip on right and wrong that it displays. I note with awestruck admiration the further judicious caveat that this amendment is to be applied to pending cases only “insofar as just and practicable”!

The email was in response to this post of mine from Friday afternoon.

Posted at 22:45 by Howard Bashman

Is it too much to ask for? On Tuesday, April 1, 2003, the Supreme Court of the United States will hear oral arguments in the two cases that challenge the lawfulness of the University of Michigan‘s use of racial preferences in student admissions. I have been looking forward to this day since May 14, 2002, when I wrote here about the U.S. Court of Appeals for the Sixth Circuit‘s 5-4 ruling that day in Grutter v. Bollinger.

I agree with Linda Greenhouse’s evaluation in her article published in today’s edition of The New York Times that the betting money now favors rulings that permit state universities to take race into account in deciding which students to admit. Rulings to the contrary are not impossible, but they are somewhat less likely.

What I sincerely hope for — putting aside my views on the merits of these cases — are decisions that command a majority of the Justices, no matter how slender that majority may be. I’m particularly concerned that if Justice Sandra Day O’Connor joins with Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer to allow public universities to consider race in deciding whom to admit, Justice O’Connor will provide the crucial fifth vote by means of an opinion concurring in the judgment. Likewise, Justice O’Connor could provide the crucial fifth vote in favor of striking down such racial preferences by means of an opinion concurring in the judgment. It was bad enough when in Regents of the University of California v. Bakke Justice Lewis F. Powell, Jr. provided the crucial fifth vote by means of a separate opinion, but at least Justice Powell then remained on the Court for another nine years. Justice O’Connor’s time on the Court could be at an end as early as this summer, and few see her serving anywhere near nine more years on the Court. To have Justice O’Connor provide the key fifth vote in the University of Michigan cases through a separate opinion followed soon thereafter by her departure from the Court would destroy any possibility that the Court’s upcoming rulings will finally settle the law in this controversial area.

So, while most everyone else will be busy between Tuesday and the end of June wishing for their preferred outcome in the University of Michigan cases, I will be wishing the most for an opinion that commands at least five votes. The only way I’d be happier was if the Court issued a majority opinion and that opinion reaches the result that I favor.

Posted at 22:20 by Howard Bashman

Steven Wu profiles Supreme Court of California Associate Justice Janice Rogers Brown: Here. Justice Brown, of course, is viewed as a possible nominee to fill one of the next U.S. Supreme Court vacancies.

Posted at 22:15 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “Supreme Court to Hear Race Bias Case” and here an article entitled “Inmates, Prisons Feud Over Phone Bills.”

Posted at 14:59 by Howard Bashman

Some news from Houston: Today’s edition of The Houston Chronicle reports here that “Rosenthal testimony lackluster in capital; DA struggled to back sodomy law in Supreme Court” and here that “10% no perfect solution to college admissions.”

Posted at 14:50 by Howard Bashman

Interesting law blog of the day: “Jottings By An Employer’s Lawyer.”

Posted at 10:23 by Howard Bashman

Man bites dog: Perhaps this is even worse — today’s edition of The Dayton Daily News contains an article entitled “Court: OK to bark at K-9 dog.”

Posted at 10:15 by Howard Bashman

“Affirmative Action Alive on Tenn. Campus”: The Associated Press offers this report.

Posted at 10:12 by Howard Bashman

Elsewhere in Sunday’s newspapers: The Washington Times contains a report from The Associated Press entitled “Tech alumni criticize policy.” And in the op-ed category, Cal Thomas has an essay entitled “The law, liberty and license,” while Bruce Fein writes of “Sex offender tocsin.”

Today’s edition of The Boston Globe contains an editorial entitled “No Justice in Guantanamo.” And columnist Ellen Goodman has an op-ed entitled “Mission: admission.”

Finally for now, The Los Angeles Times runs an AP story entitled “A Long Wait to Die on S.C. Death Row; Inmates at S. Carolina facility spend their time alone, waiting for the final day or an appeal that could spare their life. Many are in denial.”

Posted at 10:00 by Howard Bashman

In Sunday’s newspapers: In The New York Times, Neil A. Lewis reports that “Impasse on Judicial Pick Defies Quick Resolution.” In the Week in Review section, Linda Greenhouse has an article entitled “Affirmative Reaction: Can the Justices Buck What the Establishment Backs?” A related article reports that “Attack on Colleges’ Aid to Minorities Widens.” You can access here an article entitled “Puzzling Over Motives of the Men in the Lackawanna Qaeda Case.” Steven Greenhouse reports that “Lifetime Affliction Leads to a U.S. Bias Suit.” And an article from the Style section is entitled “Surprise, Mom: I’m Anti-Abortion.”

The Washington Post reports here that “At Boston U., ‘Holistic’ Admissions Venture Beyond Black and White; Struggle With Race Comes Scrutiny in U-Mich. Court Case.” In the Book World section, Garrett Epps has a review of Seventh Circuit Judge Richard A. Posner‘s latest book, “Law, Pragmatism, and Democracy.” And you can access here a review of “After: How America Confronted the September 12 Era,” which is Steven Brill’s new book.

Posted at 00:16 by Howard Bashman

Available online from law.com: Tony Mauro’s latest Courtside column is entitled “Gay Rights a Personal Issue for High Court Advocate.” And the New York Law Journal reports here that “Law Students Joining Affirmative Action Rally in D.C.”

Posted at 17:58 by Howard Bashman

Even more press coverage of the University of Michigan racial preferences in student admissions cases: The Ann Arbor News reports here that “Faculty silent on admissions: Many at U-M are reluctant to discuss affirmative action” and here that “Policy foe stays true to U-M, beliefs; Admissions fight has not dampened loyalty.” Yesterday’s edition of The Detroit Free Press, meanwhile, contained an op-ed by Zach Seal entitled “Students benefit from multicultural experiences.”

Posted at 17:54 by Howard Bashman

“No Gay Things Allowed?” Yahoo! News yesterday posted this essay from William F. Buckley Jr.

Posted at 17:38 by Howard Bashman

“Professor examines women in the courts”: Yesterday’s edition of The Penn contained this report.

Posted at 17:35 by Howard Bashman

“The virtues of discrimination”: Patti Waldmeir has this essay in The Financial Times.

Posted at 17:32 by Howard Bashman

“Supreme Court to strike a blow for Texan gays”: Tomorrow’s edition of The Independent contains this report. Apparently a pun-dit wrote the headline.

Posted at 17:26 by Howard Bashman

“God bless the 9th Circuit”: That’s what commentator Mark Q. Rhoads says in today’s UPI Outside View commentary.

Posted at 17:23 by Howard Bashman

Interesting law blog of the day: “So Cal Law Blog.” Still to come: the no-cal law blog, for readers interested in diet-related law.

Posted at 12:42 by Howard Bashman

Good stuff: The past few days have generated some quite interesting posts at the “Sub Judice” blog. And “PejmanPundit” has a new address and a new blog name too.

Posted at 10:43 by Howard Bashman

“Bloggers’ Delight: Will the war become the breakthrough Webloggers have been waiting for?” Steven Levy has this report, online at Newsweek.

Posted at 10:40 by Howard Bashman

“High Court to Weigh Diversity in Michigan Case Next Week”: The Gannett News Service offers this report.

Posted at 10:14 by Howard Bashman

In news from Michigan: The Detroit News (via The AP) reports here that “Self-segregation exists on campus at center of affirmative action case” and here that “Bush administration promotes ‘race-neutral’ college ideas; Education Department releases 40-page guide.” The Detroit Free Press, meanwhile, has an article entitled “U-M took a risk; a stellar career took root. Successful law grad defends affirmative action.” And here’s an article entitled “Washington-Bound: Buses to carry thousands to back affirmative action; Tuesday’s rally will support U-M during arguments at the Supreme Court.”

In other news, The Free Press reports here that “Court voids guilty verdicts; Men were convicted in date-rape drug death,” while The News contains an article entitled “Appeals court throws out convictions in date-rape drug case.”

Finally, you can access here an article entitled “Government presents drawings it says are of terrorist targets” (det news) and here an article entitled “Terrorism Trial: Prosecutors offer journal sketches as key evidence; They say primitive drawings depict 2 overseas targets” (freep).

Posted at 10:13 by Howard Bashman

“Gay couple won’t get Texas divorce; State law does not recognize same-sex unions, ruling says”: Today’s edition of The Houston Chronicle contains this report. Earlier in the week, The Beaumont Enterprise contained an article entitled “No gay marriage, no gay divorce, AG says.” Back on Monday, The Enterprise reported that “Anti-gay protester to picket in Beaumont.” This week’s developments marked a change in course from earlier in the month, when the headline read “Judge grants divorce to men who got civil union a year ago.”

Posted at 10:02 by Howard Bashman

“Justice O’Connor Extols Diversity in Book”: Anne Gearan of The Associated Press has this report. Be sure to read the whole thing so as not to miss an unrelated story about Justices Clarence Thomas and Stephen G. Breyer and their love of alphabet soup.

Posted at 09:52 by Howard Bashman

In Saturday’s newspapers: The New York Times today devotes its op-ed page to the University of Michigan racial preferences in student admissions cases to be argued at the U.S. Supreme Court on Tuesday. In alphabetical order by the author’s last name, Benjamin Forest has an essay entitled “A Policy That Depends on Segregation.” Glenn C. Loury has an essay entitled “Admissions (and Denials) of Responsibility.” Stanley Rothman asks, “Is Diversity Overrated?” And the dynamic duo of Lawrence H. Summers and Laurence H. Tribe not only demonstrate different spellings of a first name but also have an essay entitled “Race Is Never Neutral.” And if it’s “op-art” you seek, Scott Stowell and Susan Barber supply this effort. In the news, you can access here an article entitled “Defense Is Told of Missing Transcripts in Embassy Bombings Case.” And “Topics of The Times” notes “A Win for Legal Services.”

In Sunday’s edition of The Los Angeles Times, David G. Savage has an article entitled “Affirmative Action Case Splits Asian Americans; University of Michigan’s admissions policy, to be debated by the Supreme Court this week, is seen as a threat and a crucial protection, lawyers say.” And today’s newspaper contains an article entitled “O.C. Judge OKd for Federal Bench.”

The Boston Globe reports here that “Claim of church rights panned.” And an editorial about the case from Texas challenging that State’s prohibition of homosexual sodomy is entitled “Unequal protection.”

Posted at 08:20 by Howard Bashman

A first: This may be the first opinion that the U.S. Court of Appeals for the Tenth Circuit‘s Web site has posted for which Circuit Judge Michael W. McConnell is credited as the author.

Posted at 20:56 by Howard Bashman

“Another Democratic Filibuster? Democrats prepare to obstruct again — war or no war.” Byron York has this essay today at National Review Online about the expected Democratic U.S. Senate filibuster of Priscilla R. Owen‘s nomination to serve on the U.S. Court of Appeals for the Fifth Circuit.

Posted at 20:26 by Howard Bashman

Some judicial confirmation-related news and commentary: Jonathan Tilove of the Newhouse News Service has an article entitled “Affirmative Action Complicates Burden of Proof in Minority Success.” The article focuses on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. Meanwhile, the Feminist Daily News Wire has an item entitled “Anti-Women Judicial Nominee Approved by Senate Committee.” Ironically, the supposedly “anti-women” nominee just happens to be a woman.

Posted at 17:12 by Howard Bashman

“NYC Firings in Racist Flap Questioned”: The Associated Press provides this report.

Posted at 16:28 by Howard Bashman

Access the U.S. Supreme Court‘s press release on the University of Michigan racial preferences oral arguments audiotape: Here.

Posted at 15:45 by Howard Bashman

“Mich. Date-Rape Death Charges Tossed”: The Associated Press has this report. You can access yesterday’s unpublished ruling of the Michigan Court of Appeals at this link.

Posted at 15:30 by Howard Bashman

Rules, anyone? The Supreme Court of the United States yesterday sent to Congress proposed amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure. The amendments (which you can access via this post at SCOTUSblog) will take effect on December 1, 2003 unless Congress rejects them. The amendments to the Federal Rules of Appellate Procedure seem negligible, so chances are you won’t be hearing much more from me about them anytime soon. Readers interested in class action procedures, however, should be sure to check out the amendments to the Federal Rules of Civil Procedure.

Posted at 15:21 by Howard Bashman

“Court to Examine Old Molestation Cases”: The Associated Press offers this report.

Posted at 14:17 by Howard Bashman

What a difference two days make: On Wednesday, The Associated Press had a report from New Mexico entitled “Antiwar prosecutor on leave.” Yesterday, The Albuquerque Tribune reported here that “Assistant DA’s job might be in jeopardy, her attorney says.” Today’s news brings word that “Prosecutor Fired Over Undercover Flap.”

Posted at 13:10 by Howard Bashman

I really, really dissent: Today a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit issued an opinion from which Senior Circuit Judge Donald P. Lay dissented. Judge Lay’s dissent concludes:

This case troubles me as much as any case that I have sat on in over thirty-seven years on this court. In the present case, the law is clear. There can be little doubt that the district court exercised a reasonable interpretation to the contract and correctly submitted the case to the jury. In writing this dissent, I recognize that it is a strong one; however, as I have indicated, to deny a party a commission properly earned under the express terms of a contract in the manner the majority has attempted to do in this case, requires strong words and a strong objection. I accordingly strongly dissent.

You can access both the majority and dissenting opinions at this link.

Posted at 11:32 by Howard Bashman

“Judge Bans Leather Clothes in Courtroom”: The Associated Press this morning offers this report. Relatedly, yesterday’s edition of The Deseret News contained an article entitled “A ‘dress code’ for Utah trial.”

Posted at 09:50 by Howard Bashman

Yesterday’s federal judicial nominations: The White House yesterday announced three nominations to fill U.S. District Court vacancies. Among the nominees was Connecticut attorney Mark R. Kravitz, who has served as appellate columnist for The National Law Journal.

Posted at 08:23 by Howard Bashman

In judicial nomination/confirmation news from Texas: Today’s edition of The Dallas Morning News reports here that “Split Senate panel backs Owen’s nomination; Texas judge gets 2nd chance after defeat by Democrats last year.” And Fifth Circuit nominee Edward C. Prado sailed through his confirmation hearing with ease yesterday, this article from The Herald Democrat reports.

Posted at 08:10 by Howard Bashman

Elsewhere in Friday’s newspapers: The Washington Times reports here that “Senate panel OKs Owen for judgeship.” According to the article, the full U.S. Senate could vote on the nomination as early as next week.

The Boston Globe reports here that “Court halts racial decree for Fire Dept.”

And The Los Angeles Times today contains a column by Steve Lopez entitled “Mustard Company Doesn’t Relish Any Attack on Its Name.”

Posted at 07:45 by Howard Bashman

“Court to quickly provide U-M tape; Widespread interest results in unusual move”: Today’s edition of The Detroit Free Press contains this report. The Detroit News, meanwhile, reports here that “Coleman stresses diversity; U-M president outlines agenda at her inaugural.” The Michigan Daily reports here that “High school students: ‘U’ lawsuits critical to education” and here that “Coleman highlights future at ceremony.” And columnist Hussain Rahim has an op-ed entitled “Diversity! Where?”

Posted at 07:39 by Howard Bashman

The Senate Judiciary Committee has scheduled a hearing for April 1, 2003 on the nomination of Carolyn B. Kuhl to serve on the Ninth Circuit: Notwithstanding that one of Kuhl’s two home-state U.S. Senators, Senator Barbara Boxer (D-CA), apparently has not returned a “blue slip” to signify approval of the nomination. This hearing should therefore be rather interesting.

Posted at 06:00 by Howard Bashman

Interesting law blog of the day: “UnivAtty.”

Posted at 00:50 by Howard Bashman

In Friday’s newspapers: In The New York Times, Linda Greenhouse reports here that the U.S. Supreme Court has announced that it will be making an audiotape of oral arguments in the University of Michigan racial preferences in student admissions cases available immediately after those oral arguments conclude next Tuesday. I look forward to joining with the readers of “How Appealing” in listening to those oral arguments online early on the afternoon of April 1, 2003. In other news, Neil A. Lewis reports here that “On 2nd Try, U.S. Court Nominee Advances.”

The Washington Post reports here that “Moussaoui Said Not to Be Part of 9/11 Plot; Al Qaeda Operations Chief Tells Interrogators Accused Terrorist Here for 2nd Wave.” In news pertaining to an alleged home-grown terrorists, you can access here an article entitled “Mental Health Experts to Evaluate Sniper Suspect.” And here’s an editorial entitled “Detention Without End (Cont’d).”

In The Christian Science Monitor, Warren Richey has an article entitled “Affirmative action’s evolution; How the debate has changed since 1970s.” And an op-ed by Jerome Karabel is entitled “Race and national security.”

Posted at 00:25 by Howard Bashman

In memory of Amanda Davis, 1971-2003: Here in The New York Observer, and here at McSweeney’s.

Posted at 22:39 by Howard Bashman

Available online at law.com: Tony Mauro reports here that “Bound Suspect’s Rights Up for Discussion at High Court.” Jason Hoppin reports on an en banc oral argument in an article entitled “9th Circuit Grapples With ‘Duffield.'” In news from New York, you can access here an article entitled “Judges May Decide Whether to Probe Pro Se Competence” and here an article entitled “Conviction Reversed Over Juror’s Poor English Skills.”

Posted at 22:24 by Howard Bashman

Senator Patrick J. Leahy (D-VT) has a few things he’d like to say: Senator Patrick J. Leahy (D-VT), the ranking Democratic member of the Senate Judiciary Committee, issued three statements concerning judicial nominations today. You can access here the “Opening Statement Of Senator Patrick Leahy; Business Meeting Of The Senate Judiciary Committee”; here the “Statement Of Senator Patrick Leahy On The Nomination Of Priscilla Owen To Be A Judge On The United States Court Of Appeals For The Fifth Circuit”; and here the “Statement Of Senator Patrick Leahy On The Breach Of Judiciary Committee Rules.”

Posted at 20:54 by Howard Bashman

In news from Texas: The Associated Press reports here that “Texas Executes Mentally Ill Convict.” The Daily Texan reports here that “Convicted mentally ill inmate put to death; Colburn was competent despite illness, say court’s psychologists.” And The Courier reports here that “Conroe man’s execution evokes strong emotions from family.”

Posted at 20:30 by Howard Bashman

Some on Charleston’s city council refuse to sit through atheist’s invocation: Today’s edition of The Post and Courier contains this report.

Posted at 17:02 by Howard Bashman

“F. Lee Bailey Ordered to Pay Feds $5M”: The Associated Press has this report.

Posted at 16:59 by Howard Bashman

Divided First Circuit panel holds that Boston has sufficiently remedied effects of past discrimination against blacks and Hispanics in hiring firefighters: You can access today’s ruling at this link.

Posted at 16:47 by Howard Bashman

“Law Review: Scalia on gay rights; Breyer on Dr. Seuss; and more on oral arguments in the Texas sodomy case.” E.J. Graff has this essay online at The American Prospect.

Posted at 15:49 by Howard Bashman

President Bush commends Senate Judiciary Committee for its favorable action today on Priscilla R. Owen‘s nomination to the Fifth Circuit: The White House’s press release is available here.

Posted at 15:42 by Howard Bashman

“Attorney visits no closer for ‘enemy combatant'”: CNN.com offers this report.

Posted at 14:19 by Howard Bashman

In news from Tennessee: You can access here an article entitled “‘Dirty movie’ vehicle bill hits constitutional bump.” The sponsor of the legislation, according to the article, is Rep. Bubba Pleasant, R-Arlington.

Posted at 13:59 by Howard Bashman

“Judicial hopefuls in verbal tightrope”: The Associated Press issued this report from Pennsylvania earlier this week.

Posted at 13:51 by Howard Bashman

“Senate Panel OKs Owen’s Nomination”: The Associated Press offers this report.

Posted at 12:58 by Howard Bashman

Euphemistically speaking? Law Professor Eric Muller writes of “Scalia’s Freudian Moment.” Meanwhile, Clayton Cramer offers his thoughts on the Lawrence case here.

Posted at 12:38 by Howard Bashman

Results of this morning’s Senate Judiciary Committee business meeting: “Priscilla Richmond Owen to be US Circuit Judge for the Fifth Circuit” — Recommended 10-9 along party lines;

“Mary Ellen Coster Williams to be Judge for the Court of Federal Claims” — Recommended 12-0 (all Republicans plus Senators Biden and Feinstein voting aye); 7 Democrats voted present;

“Victor J. Wolski to be Judge for the Court of Federal Claims” — Recommended 11-5 (all Republicans and Senator Feinstein voting aye); 3 Democrats voted present;

“Ricardo H. Hinojosa to be US Sentencing Commissioner” — Recommended 11-0 (all Republicans and Senator Feinstein voting aye); 8 Democrats voted present; and

“Michael E. Horowitz to be US Sentencing Commissioner” — Same result as Hinojosa.

Posted at 12:22 by Howard Bashman

Time to abolish the U.S. Court of Federal Claims? Yesterday’s edition of The Washington Post contained an editorial arguing that the answer is “yes.” The argument in favor of abolishing the U.S. Court of Federal Claims is detailed in an article by Law Professor Steven L. Schooner that will be published this year in the George Washington Law Review. You can view Professor Schooner’s article online at this link.

Posted at 12:12 by Howard Bashman

Elsewhere in Thursday’s newspapers: In The Los Angeles Times, David G. Savage reports here that “Justices Engage in Debate Over Equal Rights for Gays” and here that “Legal Aid Survives Challenge in Supreme Court; Justices reject a claim that the program is unconstitutional. The ruling is called ‘a victory for expanding access to justice’ for poor people.” In other news, you can access here an article entitled “Court to Hear Microsoft Appeal; Adversaries renew hope for stiffer controls than the approved antitrust settlement imposes.” From The Associated Press comes a report that “Judge Rejects ‘Happy Cow’ Lawsuit; Animal rights group said campaign by the California milk board was false advertising.” (Denise Howell has more here.) And columnist Norah Vincent has an essay entitled “‘Rights Just for Us’: The Gay Left’s Self-Serving Agenda.”

In The Boston Globe, Lyle Denniston reports here that “Court hears suit on sodomy law; Gays argue that statute violates privacy rights” and here that “Ruling OK’s use of funds to finance state legal aid.” In local news, you can access here an article entitled “Appeals court: Judge overstepped authority on police hiring” and here an article entitled “SJC upholds a guilty verdict in ’94 Latin Academy slaying.” And here’s a report entitled “Sides wrap up case for, against Lopez; Lawyers debate judge’s remarks.”

In USA Today, Joan Biskupic reports that “Justices hear anti-sodomy case Court is reviewing ’86 decision.” And in The Washington Times, Edward Blum and Roger Clegg have an op-ed entitled “Civil rights bias.”

Posted at 11:30 by Howard Bashman

Sodomy is good: Andrew Sullivan makes the case here.

Posted at 11:02 by Howard Bashman

Steph and the Cave Species: Sure it sounds like a bad 70’s band, but what it means is that Steph from “blueblanketblog” was the winning counsel in yesterday’s Fifth Circuit Cave Species ruling. She takes the good news in stride in a post you can access here.

Posted at 10:44 by Howard Bashman

Interesting law blog of the day: “Decnavda’s Dialectic.”

Posted at 10:05 by Howard Bashman

On today’s agenda: The Senate Judiciary Committee is holding a business meeting that is due to begin in just moments from now. The Committee is expected to re-vote on the nomination of Priscilla R. Owen to serve on the U.S. Court of Appeals for the Fifth Circuit and to vote on the nomination of Victor J. Wolski to serve on the U.S. Court of Federal Claims. Stay tuned for the results.

Then, at 2 p.m. today, the Judiciary Committee is scheduled to reconvene to hold a confirmation hearing for Fifth Circuit nominee Edward C. Prado.

Posted at 09:25 by Howard Bashman

In news from Washington State: The Seattle Times reports here that “High court backs legal aid for poor.” (The Legal Foundation of Washington’s Web site already notes the organization’s victory.)

In other news, the Times reports here that “Bridge accepts treatment; DUI prosecution deferred,” while The Seattle Post-Intelligencer contains an article entitled “Alcohol treatment, probation for Justice Bridge; She vows to meet court’s conditions in plea agreement.”

Posted at 07:02 by Howard Bashman

In news from (or involving) Texas: Today’s edition of The Dallas Morning News reports here that “Justices hear sodomy law arguments. DA says regulation not discriminatory; lawyer says it denies rights.” The Houston Chronicle reports here that “Sodomy law’s moral issues raised at Supreme Court.” The Web site 365Gay.com reports that “Justices Grill Lawyers In Supreme Court Gay Rights Case,” while Gay.com News contains an article entitled “U.S. Supreme Court weighs landmark case.”

Posted at 06:57 by Howard Bashman

In news from Detroit: Today’s edition of The Detroit Free Press contains an article entitled “The Intervenors: Minority students argue a different view; For them, righting wrong – not diversity – is issue.”

In other news, The Free Press reports here that “Terrorism trial under way: Prosecutors allege intent; defense says case flawed” and here that “Potential jurors in terrorism trial fret over serving; Safety, time, pressure among the factors cited.” And The Detroit News contains an article entitled “Feds: Terrorists targeted Vegas; Prosecutor tells Detroit jury men on trial also wanted to hit Disney, nation’s airports.”

Posted at 06:47 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “Owen to Get Rare Second Chance in Senate.” The article notes that yesterday was day fifty of the Miguel A. Estrada filibuster. In other news, you can access here an article entitled “Wash. Court Justice Avoids Jail Time”; here, “Trial Opens in Alleged Terror Cell Case”; and here, “Judge: Farmers Must Pay for ‘Got Milk.'”

Posted at 06:40 by Howard Bashman

Tom Goldstein reports on yesterday’s U.S. Supreme Court homosexual sodomy oral argument: You can access his account here. My favorite line: Tom writes that the attorney for the Texas county “gave what may have been the worst oral argument in a truly important case in the past decade.” Hmm, was Tom even old enough to gain admission to the Court to attend oral arguments ten years ago?

Posted at 00:45 by Howard Bashman

In Thursday’s newspapers: In The New York Times, Linda Greenhouse reports here that “Supreme Court Seems Set to Reverse a Sodomy Law” and here that “Supreme Court Backs Plan on Financing of Legal Aid.” Also, you can access here excerpts from oral argument today in the sodomy case. And the newspaper contains an editorial entitled “The Rights of Gay Americans.”

In The Washington Post, the search for Charles Lane continues. Someone named Edward Walsh (a name that mysteriously contains all the same letters as “Charles Lane” — hmm, maybe not) reports here that “Justices Hear Challenge to Texas Sodomy Law” and here that “Court, 5-4, Backs Legal Aid Financial Plan; System Used Nationwide to Afford Poor Free Representation Survives Challenge.”

The Christian Science Monitor reports here that “Baby case tests rights of parents; Texas court weighs case of hospital that overrode parents to perform operation.” And you can access here an article entitled “Of prison and publishing — and who should profit.”

Posted at 00:12 by Howard Bashman

Available online at law.com: Tony Mauro reports here that “Victory for IOLTA Programs at Supreme Court” and here that “Supreme Court Hears Lively Debate Over Sodomy Law.” In news from California, “Justices to Tackle Case Pitting Berkeley Against Scout Group.” And you can access here an article entitled “3rd Circuit: Hourly Workers Not Entitled to ERISA.”

Posted at 00:05 by Howard Bashman

Thanks to Jane’s Blogosphere, “How Appealing” now has an RSS/XML feed that really works! And you can access it using the adorable orange XML button on the left hand column of this page. Please re-set your newsreaders accordingly. Thanks, Jane’s.

Posted at 23:17 by Howard Bashman

U.S. Supreme Court round-up for Wednesday, March 26, 2003: Back on June 10, 2002, the Supreme Court of the United States issued an order list in which the Court granted certiorari in a case then known as Washington Legal Foundation v. Legal Foundation of Washington. As I wrote here in a blog post that night:

The big case granted review today was Washington Legal Foundation v. Legal Foundation of Washington, No. 01-1325. That case presents another Fifth Amendment takings challenge to IOLTA programs. To those who hate acronyms, as I do, IOLTA stands for Interest On Lawyers’ Trust Accounts. Most every state requires lawyers and law firms to open trust accounts for safekeeping of client funds. In many states, the interest on such accounts (where the amount is too small to pay to the depositor) is instead aggregated and paid over to organizations providing legal services for the poor. Some clients don’t like that, and have challenged the program as unconstitutional. (Click here for my recent post about a similar IOLTA case in which the Fifth Circuit divided 7-7 over whether to grant rehearing en banc.) Let’s not overlook the name of the case granted review today: Washington Legal Foundation v. Legal Foundation of Washington. Regardless of which side wins, the opposing parties have such similarly sounding names that each will be able to plausibly claim victory. The name of this suit reminds me of my former favorite U.S. Supreme Court case name, Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982).

Today, some nine months and sixteen days later, the Supreme Court issued its ruling in the case, which now magically bears the name Brown v. Legal Foundation of Washington, No. 01-1325 (U.S. Mar. 26, 2003). This case — with or without its formerly confusing name — stands as the poster child for 5-4 rulings, for reasons I shall now explain.

Although Billy Preston undoubtedly was correct when he wrote and sang that “Nothing from nothing leaves nothing,” some public-interest-minded individual had the seemingly brilliant idea that perhaps nothing plus nothing plus nothing — if repeated enough times — might just in fact equal something. And indeed it has, to the tune of some $200 million. What I’m talking about is IOLTA accounts, which by law or regulation lawyers in all fifty States must use when holding client money in escrow if the amount of money is too small to be invested to earn interest for the client. So, when it is not possible for client funds to be invested to earn interest for the client, lawyers are required to put the funds into IOLTA accounts, where any interest is pooled and then paid a trust fund that is then used to pay for litigation and other lawyer-related services that are deemed to be in the public interest.

Of course, few things get conservatives more steaming mad than public interest litigation, and here we have an instance of public interest litigation that’s being unwittingly (and often times unwillingly) funded using the interest earned on the escrow accounts of countless law firm clients. So into the void steps the Washington Legal Foundation, in order to vindicate the property interests of clients whose escrow monies are being used to fund public interest litigation. And if, as a result, public interest litigation is left unfunded — or perhaps I should say even more unfunded than it already is — then it’s just a case of “so sad, too bad.”

For reasons that are too uninteresting to explain, the Washington Legal Foundation’s nationwide campaign against IOLTA accounts proceeded incrementally and with mixed results. The Fifth Amendment to the U.S. Constitution provides, in pertinent part, that “nor shall private property be taken for public use, without just compensation.” In order for the Washington Legal Foundation to prevail, it first had to establish that the interest being earned on client funds in IOLTA accounts was indeed the private property of those clients. And, in June of 1998 in a case that arose from the Fifth Circuit, the Supreme Court answered that question in the affirmative by a 5-4 vote, with the usual suspects all where they usually will be. That ruling, however, did not answer two questions — whether IOLTA funds are indeed taken by the States, and if so the amount of “just compensation” due to the owners of that private property.

Today the Court resolved both of those heretofore unanswered questions, in a decision that I’ve already characterized as the poster-child of all 5-4 decisions. Proving for the umpteenth time that it’s Sandra Day O’Connor’s world and we just live in it, today Justice O’Connor proved to be the switch in time that saved IOLTA programs (I know, this lacks the rhyme of “saved nine,” but I do have some facts I must deal with here, okay?). Justice John Paul Stevens assigned the majority opinion to himself, and joining in it were Justices O’Connor, Souter, Ginsburg, and Breyer. Justice Stevens agreed that the property interests identified in the Court’s 1998 ruling had been taken by the State, and that it was proper to apply a per se test that makes it quite easy to find a taking. What proved key to the majority was that the obligation to pay “just compensation” is measured by the property owner’s net loss, and since the property owner would have earned no interest in the absence of IOLTA programs, the property owner has suffered no net loss. And for good measure, the majority pointed out that if escrow funds that could have produced net interest were improperly invested in an IOLTA program, the property owner’s remedy would be a suit against the lawyer or other person who wrongfully invested the funds in the IOLTA program, and not against the State.

Justice Antonin Scalia wrote a feisty dissent, in which the Chief Justice and Justices Kennedy and Thomas joined. Justice Scalia’s dissent was noteworthy for its proud use of the subjunctive (“That were surely an unprincipled distinction.”) and for the sentence he began by writing “To confuse confusion yet again * * * .” Earlier today I highlighted another great passage from this dissent in a post you can access here. Justice Anthony M. Kennedy wrote a short separate dissent, flying solo, in which he explained that the clients whose property is being confiscated may yet be able to prevail on a forced speech, First Amendment challenge to the IOLTA construct. Perhaps if pigs could fly those clients with IOLTA escrows would have standing to wage such a challenge in the aftermath of today’s ruling.

I find myself to be personally divided 5-4 over which side had the better argument in this case (and, as an added bonus, I regularly switch my allegiance between the majority and the dissent), so I’m more than ready to resume thinking about easier issues. This certainly was one of the most difficult cases that the Court will confront this Term. Conveniently, the Court resolved the case just in time for the submission of several of the other most difficult cases. By the way, today the Court managed to affirm the U.S. Court of Appeals for the Ninth Circuit‘s en banc ruling, and Justice Stevens’ opinion for the Court had nice things to say about both the Ninth Circuit’s majority and dissenting opinions.

Posted at 22:50 by Howard Bashman

Tenth Circuit chooses sides in circuit split over whether federal statute entitles state death row inmate to federally-funded counsel in state clemency proceeding: By a vote of 2-1, the court answered that question in the negative. You can access the opinion here.

Posted at 22:34 by Howard Bashman

In news from California: The Associated Press reports here that “State Supreme Court to review Berkeley’s decision against scouts.”

Posted at 22:26 by Howard Bashman

For someone who camped out overnight at the U.S. Supreme Court to see today’s homosexual sodomy oral argument: University of Chicago student Will Baude has a remarkably cogent and entertaining post about what he observed at the Court today.

Posted at 22:24 by Howard Bashman

“The Supreme Court Tries Sodomy . . . and discovers that Texas is confused about it too.” This could be Dahlia Lithwick’s last Supreme Court Dispatch for a while, so be sure to take a look.

Posted at 20:39 by Howard Bashman

The victim of this alleged murder was a “notorious philanderer”: Today the U.S. Court of Appeals for the Fourth Circuit issued an opinion that begins, “In March of 1992, wealthy art collector and notorious philanderer Roger de la Burde died from a single gunshot wound to the head.”

Posted at 19:16 by Howard Bashman

Big win for the Cave Species in Texas: The U.S. Court of Appeals for the Fifth Circuit today issued an opinion that likely will be viewed as an important win for environmentalists. The court’s opinion begins:

The Endangered Species Act of 1973, 16 U.S.C. sec. 1531, et seq. (ESA), contains a “take” provision, 16 U.S.C. sec. 1538(a)(1)(B). For this challenge to Congress’ Commerce Clause power, U.S. Const. art. I, sec. 8, cl. 3, at issue is whether ESA’s take provision is unconstitutional as applied to six species of subterranean invertebrates found only within two counties in Texas (Cave Species). Central to this question is whether, to demonstrate the requisite substantial effect on interstate commerce, Cave Species “takes” may be aggregated with those of all other endangered species. They can be; the judgment is AFFIRMED.

Circuit Judge Rhesa Hawkins Barksdale wrote the opinion of the court, and Circuit Judge James L. Dennis wrote a concurring opinion. This decision would appear to be a must-read for those interested in Commerce Clause challenges and/or environmental law.

Posted at 19:07 by Howard Bashman

Some excerpts from today’s U.S. Supreme Court oral argument in the homosexual sodomy case: The Associated Press provides these excerpts.

Posted at 19:04 by Howard Bashman

Ten Commandments case to be argued in the U.S. Court of Appeals for the Third Circuit on April 7, 2003: The U.S. Court of Appeals for the Third Circuit has scheduled oral argument in Freethought Society of Greater Philadelphia v. Chester County, Pa. to occur on Monday, April 7, 2003.

U.S. District Judge Stewart R. Dalzell of the U.S. District Court for the Eastern District of Pennsylvania in March 2002 granted a permanent injunction that required Chester County, Pennsylvania to remove from the facade of its county courthouse a plaque bearing the text of the Ten Commandments. In April 2002, however, Judge Dalzell granted a partial stay pending appeal that required the county, during the pendency of its appeal, to “cover the Ten Commandments plaque on the Chester County Courthouse facade with an opaque drape of a color calculated to match, as closely as possible, the limestone on the High Street facade of the Courthouse.”

This case has previously received much press coverage, both locally in Philadelphia (see here, here, here, and here) and nationally (see, for example, here). You can access Chester County’s appellate briefs and the appellate briefs of several sympathetic amici at this link.

Posted at 16:30 by Howard Bashman

“High court to hear prison visitation case: Michigan lawyers are to argue against limitations.” The Detroit Free Press contains this article on today’s other U.S. Supreme Court oral argument.

Posted at 15:26 by Howard Bashman

“Staring Down Stare Decisis: Bowers and Roe.” Richard Lessner has this essay just posted at National Review Online.

Posted at 15:14 by Howard Bashman

“Supreme Court Considers Challenge to Sodomy Law”: Reuters offers this report.

Posted at 15:03 by Howard Bashman

“Court hears challenge to Texas sodomy ban”: United Press International provides this report on today’s oral argument.

Posted at 14:24 by Howard Bashman

“Court: Cuban Boy’s Kin Can’t Sue Reno”: The AP offers this report.

Posted at 13:14 by Howard Bashman

“Court Appears Divided on Anti-Sodomy Case”: Anne Gearan of The Associated Press has this report. And, lest we overlook today’s other oral argument, you can access here an article entitled “Supreme Court Hears Prison Rights Case.”

Posted at 13:08 by Howard Bashman

When litigants named “Dick Tracy” begin to appear: Today’s edition of The Washington Post contains an editorial entitled “Court of Extravagance” that calls for the elimination of the U.S. Court of Federal Claims. In related news, Victor J. Wolski — a nominee to that court — is proving to be quite controversial, as this report and this letter in opposition suggest. (The title of this post refers to an earlier post about a recent USCFC ruling.)

Update: The author of the blog “How Green Is My Country” sets forth his/her views on the Wolski nomination here.

Posted at 13:00 by Howard Bashman

“US Supreme Court hears gay case”: Leave it to BBC News to provide an article bearing this headline.

Posted at 12:38 by Howard Bashman

“U.S. Soldier ‘Bloggers’ Report from War Zone”: Reuters provides this report.

Posted at 12:32 by Howard Bashman

Then again, maybe not: Today’s Senate Judiciary Committee hearing has been postponed until tomorrow, Thursday, March 27, 2003 at 2 p.m. Tomorrow at 9:30 a.m., the Committee will hold a business meeting at which it will split 10-9 along party lines to approve the nomination of Priscilla R. Owen to serve on the U.S. Court of Appeals for the Fifth Circuit, thus setting the stage for the next U.S. Senate filibuster of a court of appeals nominee.

Posted at 12:25 by Howard Bashman

“Confirmation hearing today for S.A.’s Prado”: Today’s edition of The San Antonio Express-News contains this report. The hearing is scheduled to get underway at 2 p.m. today.

Posted at 12:00 by Howard Bashman

“Supreme Court Protects Legal Aid for Poor”: Gina Holland of The Associated Press has this report on today’s decision.

Posted at 11:51 by Howard Bashman

From the conclusion of Justice Antonin Scalia’s dissenting opinion in today’s IOLTA takings case:

Perhaps we are witnessing today the emergence of a whole new concept in Compensation Clause jurisprudence: the Robin Hood Taking, in which the government’s extraction of wealth from those who own it is so cleverly achieved, and the object of the government’s larcenous beneficence is so highly favored by the courts (taking from the rich to give to indigent defendants) that the normal rules of the Constitution protecting private property are suspended. One must hope that that is the case. For to extend to the entire run of Compensation Clause cases the rationale supporting today’s judgment — what the government hath given, the government may freely take away — would be disastrous.

You can access the entire dissent here.

Posted at 11:15 by Howard Bashman

Tenth Circuit posts photos showing the Byron White U.S. Courthouse after the blizzard of 2003: You can access the blizzard photos here.

Posted at 10:48 by Howard Bashman

Say goodbye to that confusing name: You can now access the U.S. Supreme Court‘s 5-4 ruling in Brown v. Legal Foundation of Washington at this link.

Posted at 10:19 by Howard Bashman

Today’s U.S. Supreme Court opinion: Today the Supreme Court of the United States issued one opinion, in the case with this Term’s most confusing name: Washington Legal Foundation v. Legal Foundation of Wash. The Legal Foundation of Washington won, the Washington Legal Foundation lost, and the Ninth Circuit‘s en banc ruling was affirmed. Justice John Paul Stevens delivered the Court’s opinion. You can access the oral argument transcript here. IOLTA programs live to see another day.

Posted at 10:00 by Howard Bashman

BREAKING NEWS: Janet Reno and other “supervisory defendants” are entitled to qualified immunity in connection with seizure of Elian Gonzalez, Eleventh Circuit holds: This morning the U.S. Court of Appeals for the Eleventh Circuit has posted to its Web site an opinion dated yesterday that begins:

In this case, we must decide whether former Attorney General Janet Reno, former Commissioner of the Immigration and Naturalization Service (“INS”) Doris Meissner, and former Deputy Attorney General Eric Holder are entitled to qualified immunity for their alleged involvement in the seizure of Elian Gonzalez (“Elian”) from the home of Lazaro, Angela, and Marisleysis Gonzalez (“the Gonzalezes”) — Elian’s great-uncle, great-aunt, and cousin – on April 22, 2000. The defendants asserted their qualified immunity defense in a motion to dismiss, which the district court denied. We now reverse.

And the opinion concludes:

In sum, plaintiffs allege that the agents on the scene used excessive force in violation of their Fourth Amendment rights, but they fail to allege any facts which, if true, would establish that the supervisory defendants caused that violation. Because plaintiffs have failed to allege that the supervisory defendants’ conduct constituted a constitutional violation, the supervisory defendants are entitled to qualified immunity under the first step in our qualified immunity analysis. The decision of the district court is therefore REVERSED.

You can access the opinion at this link.

Posted at 09:46 by Howard Bashman

“Of Blogs, Bloggers and Blawgs”: The Oklahoma Bar Journal contains this report.

Posted at 09:45 by Howard Bashman

That didn’t take long: The U.S. Court of Appeals for the Sixth Circuit has begun issuing its PDF opinions with the pages in sequential order (see this example issued today), rather than in the assemble-your-own-pamphlet format that I had found so useless.

Hmm, am I thus temporarily left without a crusade? Maybe not, as the April 2003 installment of my monthly appellate column, to be published in The Legal Intelligencer on Monday, April 14, 2003, will set forth my views concerning whether the U.S. Court of Appeals for the Ninth Circuit should be divided (or perhaps trivided). If you’re one of the handful of “How Appealing” readers who hasn’t yet taken advantage of the free and easy sign-up to receive email delivery of my monthly appellate column on the day it appears in print on the second Monday of each month, the sign-up form is available online here.

Posted at 09:30 by Howard Bashman

Today’s FindLaw columnist: Sherry F. Colb has an essay entitled “The Supreme Court Hears the Texas Sodomy Case: Embracing the Right to Privacy.”

Posted at 09:22 by Howard Bashman

Interesting law blog of the day: “Naked Ownership — All Things Legal In Louisiana.”

Posted at 09:18 by Howard Bashman

A Georgia restaurant without sweet tea is like a day without . . . : Today’s edition of The Atlanta Journal-Constitution contains an article that begins, “A Georgia restaurant without sweet tea isn’t just un-Southern — it should be illegal, several lawmakers believe.”

Posted at 09:14 by Howard Bashman

On the agenda: The Supreme Court of the United States may (or may not) issue one or more opinions at 10 a.m. today. At 11 a.m. or thereabouts, the Court is scheduled to hear oral argument in the case challenging the constitutionality of a Texas law that criminalizes homosexual sodomy between consenting adults. At 2 p.m. the Senate Judiciary Committee is scheduled to hold a hearing on judicial nominees. Although as of this moment the official notice doesn’t specify which nominees will be the subject of the hearing, I previously noted a report that Fifth Circuit nominee U.S. District Judge Edward C. Prado is on the agenda. You can access a Web cast of the hearing at this link.

Posted at 09:10 by Howard Bashman

Per curious: A recent federal appellate law clerk who now works in the Los Angeles office of one of this Nation’s largest law firms emails:

Your federal appellate jurist-correspondent ably catalogued the many uses of per curiam opinions. I wish to add an additional, rather unusual, item to the list. The circuit judge for whom I clerked was sometimes assigned to draft an opinion that required him to follow the holding or reasoning of a prior opinion with which he disagreed. On more than one of these occasions, my judge would draft a brief per curiam opinion applying precedent, then draft a concurrence in his own name explaining his reasons for disagreeing with the precedent he was required to apply. By drafting two opinions, my judge could both apply the law and soothe his conscience. The per curiam device enabled him to avoid revealing authorship of both opinions, which might have appeared awkward, perhaps even two-faced, to some observers. I have no idea whether this practice is followed in other federal circuits or in state appellate courts, but I know that other judges on my judge’s circuit engaged in this dual authorship on occasion.

My judge’s aversion to signing two opinions in the same decision is apparently not shared by all circuit judges, however. I believe Judge Randolph, for example, wrote both the majority opinion and the concurrence in the DC Circuit’s recent case involving the Guantanamo Bay detainees.

This is nothing more than an interesting footnote, of course, but you do seem to specialize in such things and I enjoy your website because of it.

You can access my earlier posts on this topic here and here.

Posted at 08:56 by Howard Bashman

“Top court to rule on ‘most important gay rights case’; Texas law forbids sodomy only by same-sex couples”: Today’s edition of The San Francisco Chronicle contains this report. And The Dallas Morning News reports here that “Texas sodomy law to go to high court today; Reversal would have sweeping effect for gays and lesbians nationwide.”

Posted at 07:04 by Howard Bashman

The Associated Press is reporting: Anne Gearan reports here that “Court Could Reverse Ban on Homosexual Sex.” And this article reports that “Penn. Jury Considers Fetal Homicide Case.”

Posted at 06:55 by Howard Bashman

News coverage pertaining to the University of Michigan racial preferences in student admissions cases: Today’s edition of The Detroit Free Press contains an article entitled “The Defenders: Team builds defense on studies, precedent. Business, media campaigns bring school support.” And in related news, “University threatened with another lawsuit.”

The Detroit News today reports that “U-M race programs targeted; Conservative group calls for an end to school’s minority-only scholarships, academic offerings.” And from Sunday’s paper, you can access here an article entitled “Three lives converge at U.S. Supreme Court; U-M admissions case bears their names”; here, “Rejection dashed woman’s dream; She says U-M failed to live up to its promise”; and here, “Student settled for second choice; Top high school record didn’t help get him in to U-M.”

Posted at 06:50 by Howard Bashman

“Jury pool in terror trial is narrowed”: Today’s edition of The Detroit News contains this report.

Posted at 06:47 by Howard Bashman

Elsewhere in Wednesday’s newspapers: The Los Angeles Times reports here that “Jurist Fears Effects of Budget Cuts on Courts; The state’s chief justice tells Legislature that civil and family law services will suffer and that more courthouses may close.” In other news, “Another Yemeni American Admits to Al Qaeda Training; A plea by a third alleged cell member in New York includes a promise to implicate three more.” And columnist Dana Parsons has an essay entitled “Hacking Away at Privacy Rights.”

The Boston Globe contains an article entitled “Freed detainees cite rewards, beatings; Ex-prisoners talk of treatment at Guantanamo Bay.” And you can access here an article entitled “US judge orders state to pay lawyers who took case for free.”

Finally for now, The Washington Times contains an op-ed by James L. Martin entitled “Picking judges judiciously.”

Posted at 06:35 by Howard Bashman

In Wednesday’s newspapers: In The New York Times, Linda Greenhouse reports that “Justices Hear Arguments on Campaign Finance.” An article reports that “U.S. to Appeal Order Giving Lawyers Access to Detainee.” Adam Liptak reports that “Public Opinion Effort Leans on Rules of War.” And in news from Buffalo, “New York Man Admits to Attending Al Qaeda Camp.”

Finally for now, The Washington Post reports here that “Court Broadens Limits on Appeals; Justice Thomas Clarifies Rules in Death Penalty Cases.”

Posted at 00:10 by Howard Bashman

French, yellow, electrocution, cat, UFO: “The Academy” makes sense of it all in a post you can access here.

Posted at 23:35 by Howard Bashman

Available online at law.com: Tony Mauro reports that “Campaign Contributions Debated at High Court.” Jason Hoppin has an article entitled “Supreme Court Refines Rules in Death Row Appeals; High court limits application of older, lenient standard of review.” This article reports that “U.S. Seeks Appeal of Padilla Attorney-Access Ruling.” And Shannon P. Duffy reports that “3M Again Stuck With $68M Antitrust Verdict.”

In The Legal Times (free registration required), Tony Mauro has an article entitled “Court Weighs Claim of Police Misconduct; Supreme Court asked to review 4th Circuit ruling in suit by suspect handcuffed to pole by Prince George’s cops.” And in commentary, Senator Edward M. Kennedy has an essay entitled “What ‘Gideon’ Promised: It’s shameful that 40 years later America still doesn’t guarantee a competent defense,” while Law Professor Mark V. Tushnet has an essay entitled “Thinking While Black: Diversity sparks a better legal education.”

Posted at 23:00 by Howard Bashman

U.S. Supreme Court round-up for Tuesday, March 25, 2003: Tomorrow the Supreme Court of the United States will hear oral argument in a case that presents the question whether a State may lawfully outlaw homosexual sodomy between consenting adults. Thus, tomorrow and Thursday nearly every mention of the Supreme Court that you will see in print will be in close proximity to the words “homosexual sodomy.” Today the Court issued two opinions, neither of which involved consensual homosexual sodomy. In fact, chances are that the vast majority of you have never heard of the two cases decided today and probably never will hear of them again after you’ve completed reading this summary. But, better safe than sorry, so be sure to read on to see whether I’m able to complete tonight’s round-up without any more mentions of homosexual sodomy.

1. Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases. More specifically, the AEDPA placed new constraints on the power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Today, in Woodford v. Garceau, No. 01-1862 (U.S. Mar. 25, 2003), the Supreme Court explained that it granted review because “Courts of Appeals have divided on the question whether AEDPA applies to a habeas application filed after AEDPA’s effective date if the applicant sought the appointment of counsel or a stay of execution (or both) prior to that date.” Five federal appellate courts had ruled that the date on which a habeas application was filed determined whether the AEDPA applied, while one federal appellate court had ruled that if the habeas applicant sought appointment of counsel and/or a stay of execution before the AEDPA’s effective date, the AEDPA didn’t apply even if the prisoner’s habeas application wasn’t filed until after the AEDPA’s effective date. And which federal appellate court was the only one to take such a prisoner-friendly approach? You’ve guessed it — the U.S. Court of Appeals for the Ninth Circuit, en banc, in a 10-1 decision. Senior Circuit Judge Cynthia Holcomb Hall was the lone judge on the eleven-member en banc court who arrived at the correct answer.

A reader who should know the impact of today’s ruling in Garceau emailed earlier today to say:

[A]bout 45 California federal capital cases became AEDPA cases this morning. In light of the remarkable series of SCOTUS cases interpreting AEDPA in the most stringent fashion and specifically reprimanding the 9th Cir. for its misguided application of the new statute (Packer, Visciotti, and Andrade), it is difficult to imagine a stronger signal from Washington.

This case is a prime example of the importance of tenacity in SCOTUS practice, at least in the contentious and complicated realm of federal habeas. SCOTUS allowed the 9th Circuit’s distortion of the statute to fester for almost five years, despite the California AG’s repeated efforts to catch the Court’s attention. [The California AG] never quit, and that tenacity finally paid off this morning.

Justice Clarence Thomas wrote the majority opinion, in which the Chief Justice and Justices Stevens, Scalia, and Kennedy joined. Justice O’Connor concurred in the judgment in a short opinion that I found more convincing than the majority’s approach. Justice David H. Souter dissented, and Justices Ginsburg and Breyer joined in that dissent. Why did Justice John Paul Stevens abandon the Court’s three other more liberal Justices to join in Justice Thomas’s majority opinion? We may never know.

2. Justice O’Connor recently visited Ohio (as I reported here), and today she had the pleasure of delivering a unanimous opinion that ruled in favor of an Ohio municipality. Her opinion in Cuyahoga Falls v. Buckeye Community Hope Foundation, No. 01-1269 (Mar. 25, 2003), begins:

In 1995, the city of Cuyahoga Falls, Ohio (hereinafter City), submitted to voters a facially neutral referendum petition that called for the repeal of a municipal housing ordinance authorizing construction of a low-income housing complex. The United States Court of Appeals for the Sixth Circuit found genuine issues of material fact with regard to whether the City violated the Equal Protection Clause, the Due Process Clause, and the Fair Housing Act, 82 Stat. 81, as amended, 42 U.S.C. sec. 3601 et seq., by placing the petition on the ballot. We granted certiorari to determine whether the Sixth Circuit erred in ruling that respondents’ suit against the City could proceed to trial.

The Court ruled that the Sixth Circuit did err in allowing the suit to proceed to trial. The substantive due process claim that the plaintiffs asserted, and which the Court’s opinion orders dismissed, managed to provoke a short concurring opinion from Justice Antonin Scalia, in which Justice Thomas joined. Justice Scalia’s record for never having met a substantive due process claim that he really likes thus continues uninterrupted.

One or more opinions could issue tomorrow at 10 a.m. Or not, if the Court doesn’t want to risk distracting observers from the issue of homosexual sodomy.

Posted at 22:00 by Howard Bashman

A new day in England: Which again has resulted in a new address for the BBC News war blog.

Posted at 20:47 by Howard Bashman

“Sodomy Flaw: How the courts have distorted the history of anti-sodomy laws in America.” Kristin Eliasberg has this essay online at Slate.

Posted at 18:50 by Howard Bashman

“Higher ed awaits a diversity ruling”: Roger Clegg has this essay today at National Review Online.

Posted at 17:26 by Howard Bashman

“Ex-Conn. Mayor Convicted in Kid Sex Case”: The AP provides this report.

Posted at 16:45 by Howard Bashman

“Supreme Court Hears Campaign Finance Case”: Gina Holland of The Associated Press has this report on today’s lone U.S. Supreme Court oral argument.

Posted at 16:35 by Howard Bashman

Another mystery solved: Last night, in a post you can access here, I posed the question “why [do] federal appellate judges sometimes issue opinions per curiam rather than signed?” Today I received the following email from a federal appellate judge:

Your question regarding why some opinions are designated “per curiam” is one that is commonly asked. Different judges will give somewhat different answers. Shorter opinions that are more in the nature of orders are usually per curiam. They don’t provide extensive discussion, and there is no reason to designate an “author,” though under most court rules there is still a “writing judge” or “initiating judge” who is more or less in charge of the opinion. Some judges will designate an opinion as per curiam when the opinion is largely prepared by central staff attorneys instead of by the judge or his or her own in-chambers law clerks. Sometimes, an opinion is not fairly attributable to just one judge, because two or three judges have made substantial contributions to one or more parts of the opinion; in some such cases, the final product may be a compromise of the various positions, for the purpose of reaching a unanimous consensus. (In other words, judges do not always register a dissent when they disagree with the majority’s position on some of the issues.) A rarer use of per curiams is to keep from disclosing the name of the writing judge in cases of vexatious litigants, to prevent harassment of a particular writing judge. Undoubtedly, some judges and courts have other reasons for the per curiam designation that are not mentioned above. One surprising fact is that there can be a dissent from a per curiam opinion; in other words, “per curiam” doesn’t necessarily mean “unanimous,” despite the Black’s Law Dictionary definition of “per curiam” as “[b]y the whole court.” Some courts occasionally make the mistake of spelling it “per curium,” see, e.g., Tilley v. Office of Personnel Mgmt., 2003 U.S. App. LEXIS 4001 (Fed. Cir. Mar. 6, 2003).

Thanks much for this thoughtful and informative email.

Posted at 16:32 by Howard Bashman

Fourth Circuit grants rehearing en banc to consider further an appeal in which panel, by vote of 2-1, granted writ of habeas corpus in death penalty case: You can access both the notation that rehearing en banc has been granted and the panel’s original opinion, plus dissent, at this link.

Posted at 16:05 by Howard Bashman

The Associated Press is reporting: For those who just can’t wait for my possibly witty summary of today’s U.S. Supreme Court rulings to appear online here tonight, you can access here an article entitled “Court Clarifies Death-Row Appeal Rules” and here Anne Gearan’s article entitled “Ohio Suburb Wins Discrimination Case.” In other news, “3rd Man Pleads Guilty in N.Y. Terror Case.”

Posted at 15:41 by Howard Bashman

Despite the possibility that she could soon be promoted to Miss Universe: A (An?) Hispanic woman last night was crowned Miss USA, The Associated Press reports here in an article entitled “Miss Massachusetts Crowned Miss USA 2003.” No filibuster was attempted.

Posted at 15:34 by Howard Bashman

Today’s FindLaw commentary: Joanna Grossman and Brian Lehman have an essay entitled “Does Discrimination Against Gay Men and Lesbians Count As Sex Discrimination? The Supreme Court May Soon Give An Answer.”

Posted at 15:05 by Howard Bashman

As I had predicted, en banc Third Circuit disagrees with three-judge panel’s ruling and affirms nearly $69 million antitrust judgment against 3M: Today the en banc U.S. Court of Appeals for the Third Circuit issued its long-awaited ruling in LePage’s v. 3M, which I previously characterized as one of the most significant antitrust cases to come before the Third Circuit in quite some time. By a vote of 7-3, the en banc court reinstated the trial court’s judgment of nearly $69 million in favor of plaintiff LePage’s. The trial court upheld that judgment on post-trial motions, but then a three-judge panel of the Third Circuit voted 2-1 to reverse and render judgment in favor of defendant 3M.

Today’s result represents another huge victory for my friend Roy T. Englert, Jr., whom LePage’s brought into the case on rehearing en banc and who argued for LePage’s before the en banc court. I attended the en banc oral argument, and you can access my account of the argument and my prediction of today’s result at this link. The two judges from the panel who voted to reverse the trial court’s judgment (see the panel opinion here) only picked up one additional vote from the en banc court, that of soon-to-be Chief Judge Anthony J. Scirica. The Third Circuit’s newest addition, Circuit Judge D. Brooks Smith, voted with the en banc majority to affirm the trial court’s judgment

Posted at 14:54 by Howard Bashman

“Japanese court spurns sex slaves”: The Associated Press offers this report from Tokyo. A related article from Agence France-Presse entitled “Japan’s Supreme Court rejects South Korean sex slave suit” can be accessed here.

Posted at 14:41 by Howard Bashman

Today’s two U.S. Supreme Court opinions are now available online: Woodford v. Garceau is available here, and Cuyahoga Falls v. Buckeye Community Hope Foundation is available here.

Posted at 10:23 by Howard Bashman

The Supreme Court of the United States has issued two opinions today: Opinions issued in Woodford v. Garceau (oral argument transcript available here) and Cuyahoga Falls v. Buckeye Community Hope Foundation (oral argument transcript available here). Coincidentally, both cases were argued on January 21, 2003.

Posted at 10:00 by Howard Bashman

Elsewhere in Tuesday’s newspapers: In The Los Angeles Times, David G. Savage reports here that “Justices Reject Challenge to Surveillance; High court refuses to intervene in a case involving government’s expanded powers to wiretap, search people linked to terrorists.” In other news from the U.S. Supreme Court, Bloomberg News reports that “MGM Harassment Claim to Go to Trial.” You can access here an article entitled “N.Y. Man Pleads Guilty to Training With Al Qaeda; The Yemeni American, allegedly a member of a cell near Buffalo, is the first person to be convicted under a 1996 anti-terrorism law.” Another installment in the continuing series known as “the tort suits of Madison County” is entitled “County Is Known as Friendly to Tort Suits; Philip Morris and business groups slam a $10.1-billion verdict in Madison County, Ill.” And Law Professor Erwin Chemerinsky has an op-ed entitled “By Flouting War Laws, U.S. Invites Tragedy.”

In USA Today, Joan Biskupic reports that “Justices to revisit sodomy laws; Case tests changes in society, on court.” You can access here an article entitled “Court or tribunal among options if Saddam captured.” From New York comes news that “Second suspect pleads guilty to terror charges in Buffalo.” And DeWayne Wickham has an op-ed entitled “Tulsa case is key reparations test.”

In The Boston Globe, Lyle Denniston reports that “Supreme Court rejects wiretap case; Secret tapings in war on terrorism at issue.” And in The Washington Times, Frank J. Murray reports that “High court rejects challenge to spy laws.”

Posted at 09:54 by Howard Bashman

Interesting law blog of the day: “Statutory Construction Zone.”

Posted at 09:47 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “Mentally Ill Inmate Faces Death This Week”; here, “Feds Eye Charges in Bill of Rights Theft”; and here, “N.Y. Terror Suspect Feared Treason Charge.”

Posted at 09:45 by Howard Bashman

Avert your eyes: Today’s edition of The Minneapolis Star Tribune reports here that “Minneapolis librarians sue over Internet porn.”

Posted at 09:41 by Howard Bashman

Plaintiffs’ U.S. Supreme Court reply briefs now available online in cases challenging University of Michigan‘s use of racial preferences in student admissions: The reply briefs were filed with the Court yesterday. You can access the Grutter (law school admissions) reply brief here and the Gratz (undergraduate admissions) reply brief here. Both of these cases will be argued at the Court one week from today.

Posted at 07:06 by Howard Bashman

“U-M Admissions Cases: Professor is root of lawsuits. His inquiry gave advocates ammunition for fight.” Today’s edition of The Detroit Free Press contains this report. And today’s edition of The Michigan Daily contains an article entitled “Student sentiment missing from ‘U’ admissions policies.”

Posted at 07:00 by Howard Bashman

Dahlia Lithwick they ain’t: Will Baude and Amanda Butler were both at the U.S. Supreme Court yesterday to see the oral arguments. You can access their reports here, here, and here.

Posted at 06:50 by Howard Bashman

“Covenant doesn’t exempt NMI from federal wire fraud”: Today’s edition of The Saipan Tribune contains this report.

Posted at 06:48 by Howard Bashman

On today’s agenda: The Supreme Court of the United States is scheduled to issue one or more opinions at 10 a.m. this morning.

Posted at 06:40 by Howard Bashman

In Tuesday’s newspapers: The Washington Post reports here that “Justices Hear Md. Death Row Appeal; High Court Weighs Issues of Childhood Abuse, Lawyers’ Competence.” You can access here an article entitled “High Court Won’t Rule on Terror Surveillance.” In news pertaining to the U.S. Court of Appeals for the Fourth Circuit, “Moussaoui Hearing Closed to Public; Appeals Panel’s Ruling Renews Debate on 9/11 Case Secrecy.” And here’s an article entitled “Guilty Plea in N.Y. Terror Probe; Accused Member of Sleeper Cell Admits to Aiding Al Qaeda.”

In The New York Times, Linda Greenhouse reports here that “Death Penalty Lawyers’ Duty Is Taken Up by Supreme Court” and here that “Groups Lose Challenge to Government’s Broader Use of Wiretaps.” In local news, “U.S. Says Lawyer Aided Terror Signals From Sheik.” And Web logs that cover the war in Iraq are featured in the final segment of this article.

Finally for now, Warren Richey of The Christian Science Monitor has an article entitled “Court test of gay rights vs. traditional values; Landmark sodomy case holds implications for privacy rights and definition of marriage.”

Posted at 00:05 by Howard Bashman

“Abortion bitterness: Senate continues the battle on a secondary front”: Yesterday’s edition of The Pittsburgh Post-Gazette contained this editorial.

Posted at 23:10 by Howard Bashman

Available online at law.com: On Wednesday, the Supreme Court of the United States will hear a constitutional challenge to a Texas law that prohibits same-sex consensual sodomy. You can access here an article entitled “Showdown at Supreme Court Over Same-Sex Sodomy Law”; here, “Sodomy Laws Drop off the Books”; and here, “In the Bedroom: Gay rights are at the center of the sodomy case at the Supreme Court.” In other news, here’s an article entitled “Philip Morris to Pay $10.1 Billion in Damages; Illinois court finds fraud by tobacco company in case pioneered by Philadelphia firm.”

Posted at 22:55 by Howard Bashman

Finally, an article about lawyer blogs that doesn’t mention “How Appealing”! And I’m so happy to have a moment away from the spotlight. But dozens of my law blogging colleagues should promptly flock to visit this article by Robert J. Ambrogi, published in The National Law Journal, to see themselves mentioned.

Posted at 22:38 by Howard Bashman

“We need go no further.” Fans of First Circuit Judge Bruce M. Selya will recognize that closing line anywhere, whether in one of his signed opinions or in a per curiam opinion for which he quite likely was the author. And this reminds me of one of my recurring yet so-far-unanswered questions: is author anonymity a reason why federal appellate judges sometimes issue opinions per curiam rather than signed? Of course, those appellate judges who issue their opinions in a format unique to themselves probably aren’t seeking anonymity when they issue a per curiam opinion in precisely the same format.

Posted at 22:22 by Howard Bashman

Spiny lobsters present thorny jurisprudential issues for the Eleventh Circuit: On Friday, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit, by a vote of 2-1, upheld the convictions of various defendants who had been charged with shipping undersized lobster tails to the United States in violation of Honduran regulations. The opinion begins:

[Defendants] appeal the convictions and sentences they received after a jury found them guilty of conspiracy, smuggling, money laundering, and Lacey Act violations in connection with the importation, sale, and purchase of Caribbean spiny lobsters from Honduras. The defendants’ main argument on appeal is that the district court erred in determining that the Honduran laws that served as the underlying basis of their convictions were valid and enforceable. The defendants contend that the Honduran laws were invalid, and, therefore, there was no violation of foreign law upon which to base their convictions.

The defendants’ challenge to the validity of the Honduran laws requires us to undertake our own foreign law determination. Our task is complicated by conflicting representations from Honduran officials regarding the validity of the Honduran laws. Throughout the investigation and trial, Honduran officials offered support and assistance to the United States government, and both the government and the district court relied upon the Honduran officials’ verification of the Honduran laws. Shortly after the defendants were convicted, the Honduran government reversed its position; it currently refutes the validity of the laws it previously verified. Therefore, we must decide whether our courts are bound by a foreign government’s new representations regarding the validity of its laws when its new representations are issued only postconviction and directly contravene its original position upon which the government and our courts relied and the jury acted. This question is a matter of first impression in this Circuit and apparently the other circuits as well.

You can access both the majority and dissenting opinions at this link.

Posted at 22:02 by Howard Bashman

What’s next — Green Lantern v. USA? The U.S. Court of Federal Claims this past Friday decided the case of Dick Tracy v. United States of America. The opinion explains that “plaintiff * * * is using the fictitious name ‘Dick Tracy’ in order to protect his identity * * * .” The reader who emailed to bring this decision to my attention asked whether there were any limits on the fictitious names that other Drug Enforcement Agency informants might seek to use if they ever happen to sue the federal government. Only time will tell, I’m afraid.

Posted at 20:42 by Howard Bashman

A new day in England: Which again means a new address for the BBC News war blog.

Posted at 20:22 by Howard Bashman

The Associated Press is reporting from the U.S. Supreme Court: Anne Gearan reports here that “Justices Mull New Standards for Lawyers,” while Gina Holland has an article entitled “High Court Rejects Civil-Rights Challenge.”

Posted at 18:38 by Howard Bashman

Chief Justice Rehnquist’s remarks last Friday at the Symposium on Judicial Independence at the University of Richmond T.C. Williams School of Law: You can access the prepared text of those remarks online here via the U.S. Supreme Court’s Web site. Now if only the rest of the Justices would likewise begin posting the text of their speeches at that location.

Posted at 15:10 by Howard Bashman

“Jury Mulls Fate of Conn. Ex-Mayor”: The AP offers this report.

Posted at 14:50 by Howard Bashman

Terror and more terror: The Associated Press reports here that “Second N.Y. Terror Suspect Pleads Guilty” and here that “Judge: Mich. Terror Trial to Continue.”

Posted at 14:00 by Howard Bashman

Fifth Circuit nominee Edward C. Prado reportedly will have his Senate Judiciary Committee confirmation hearing this Wednesday: At least that’s what The Alliance for Justice is reporting. The official hearing announcement does not yet disclose the nominees scheduled for consideration. Judge Prado currently serves as a federal district judge on the U.S. District Court for the Western District of Texas. You can access Judge Prado’s biography here, and you can access articles reporting on his nomination here, here, here, and here.

Posted at 13:39 by Howard Bashman

Justice Anthony M. Kennedy’s recent in-chambers opinion denying stay of an alien’s removal: On Friday, March 21, 2003, Justice Anthony M. Kennedy issued an in-chambers opinion denying a stay of removal to an alien whose case, while it involved a circuit split, did not present an appropriate vehicle for resolving the split.

Posted at 12:33 by Howard Bashman

“The presence of the prison recording device destroyed the attorney-client privilege.” Today the U.S. Court of Appeals for the Eighth Circuit issued an opinion that states:

Finally, Angelo Porrello argues that the District Court erred in refusing to order the government to turn over tapes of conversations between the cooperating coconspirators and their attorneys. These conversations took place while the coconspirators were incarcerated, and the parties to these conversations were aware that they were being recorded by the prison. The District Court ruled that these tapes were protected by the attorney-client privilege and therefore would not order their disclosure to the defendants. * * *

We respectfully disagree. The presence of the prison recording device destroyed the attorney-client privilege. Because the inmates and their lawyers were aware that their conversations were being recorded, they could not reasonably expect that their conversations would remain private. The presence of the recording device was the functional equivalent of the presence of a third party. These conversations were not privileged. The very existence of the tapes, which were made by and are now in the custody of the United States, was factually sufficient to demonstrate that the coconspirators waived the attorney-client privilege. [citations omitted]

You can access the opinion at this link.

Posted at 12:24 by Howard Bashman

“High Court to Review Traffic Stop Arrests”: Anne Gearan of The Associated Press has this report on the case the U.S. Supreme Court today agreed to review on the merits. And here Anne reports that “Internet Competition Appeal Rejected.”

Posted at 11:20 by Howard Bashman

Balkin and Buck continue their debate over the jurisprudence of Antonin Scalia: Their most recent exchange can be viewed here and here.

Posted at 11:01 by Howard Bashman

A win? The AP has changed the headline I noted in the immediately preceding post (below) to “U.S. Wins Appeal on Domestic Spy Powers.” In other news, “High Court Eyes Limits on Inmate Visits.”

Posted at 10:50 by Howard Bashman

“Supreme Court rejects attempt to appeal cases testing scope of secret spy court”: Anne Gearan of The Associated Press has this report.

Posted at 10:34 by Howard Bashman

Today’s U.S. Supreme Court order list: Available here. The Court granted certiorari in one case and called for the views of the Solicitor General in another.

Posted at 10:10 by Howard Bashman

Interesting law blog of the day: “The Manifest Border.”

Posted at 09:53 by Howard Bashman

“Right to lawyer still not a given for poor defendants”: Today’s edition of The Atlanta Journal-Constitution contains this report.

Posted at 09:49 by Howard Bashman

Elsewhere in Monday’s newspapers: The Washington Times today contains two op-eds of note. Nat Hentoff writes of “Bringing the Constitution to life,” while Jacob Sullum has an essay entitled “Courting anti-gun ambitions.”

Finally for now, The Los Angeles Times contains an article entitled “Tree-Sitters Hang On to Perches; Some activists return to redwoods right after being forcibly removed by fed-up lumber firm.”

Posted at 06:35 by Howard Bashman

The U.S. Supreme Court is back in session today: At 10 a.m., the Court is expected to issue orders. The Court will hear two oral arguments this morning, and SCOTUSblog provides an admirably thorough preview of the cases in which the oral arguments will be occurring here and here.

Posted at 06:30 by Howard Bashman

“A Baghdad Blogger”: The March 31, 2003 edition of The New Yorker contains this profile of the author of the blog “Where is Raed?“

Posted at 01:10 by Howard Bashman

In Monday’s newspapers: In The Washington Post, Charles Lane reports here that “High Court to Hear Texas Gay Rights Case; Review of Sodomy Conviction Seen as Important by Both Sides of Issue.” You can access here an article entitled “Timeline Tightens for Campaign Finance Case; Supreme Court Awaits Ruling From Judges as Term Starts Drawing to a Close.” A front page article is entitled “U.S. Steps Up Secret Surveillance; FBI, Justice Dept. Increase Use of Wiretaps, Records Searches.” And this article reports that “‘Murder Inc.’ Defendants Wore Stun Belts; Judge Permitted Marshals to Use Shock Devices for Additional Security at Trial.”

Finally for now, in The New York Times, Adam Liptak reports here that “Longtime Death Case Lawyer Appeals Ouster.”

Posted at 00:05 by Howard Bashman

The New York Review of Books reviews Stuart Banner‘s latest book, “The Death Penalty: An American History“: Banner is of course one of the contributors to “The Volokh Conspiracy,” but there doesn’t seem to be mention of this newly-published book review yet at that site (but stay tuned!). Update: You can access an excerpt from Stuart’s book here (PDF document).

Posted at 22:49 by Howard Bashman

I’m not much in the mood to watch The Academy Awards tonight: But I’m still somewhat interested in who wins, and what they happen to say at the podium. Via this link, I can access that information (if the winner’s name is a hyperlink, the winner’s acceptance speech can be accessed by clicking on the name).

Posted at 22:10 by Howard Bashman

“Standing alone, however, a litigant’s bizarre behavior is insufficient to trigger a mandatory inquiry into his or her competency.” When is a federal trial court required to decide if a pro se litigant is too crazy to represent himself or herself in court? The U.S. Court of Appeals for the Second Circuit issued an opinion resolving that question this past Friday.

Posted at 20:53 by Howard Bashman

Just how long is one year? Sure, everyone knows the answer is 31,536,000 seconds, when it’s not a leap year. But for lawyers the answer isn’t necessarily that simple. The Antiterrorism and Effective Death Penalty Act of 1996 provides that a motion by a federal prisoner for postconviction relief under 28 U.S.C. sec. 2255 is subject to a one-year time limitation that generally runs from “the date on which the judgment of conviction becomes final.” Earlier this month, in Clay v. United States (a decision I previously summarized here), the Supreme Court of the United States examined when the one-year time limit begins to run. This past Friday, the U.S. Court of Appeals for the Tenth Circuit issued an opinion that decided the surprisingly complicated question of when the one-year time limit ends. Does the Tenth Circuit choose “the calendar method” or “the anniversary method”? The answer can be found here.

Posted at 20:40 by Howard Bashman

A new day in England: That means a new address for the BBC News war blog. “The Command Post” blog has a new URL, too.

Posted at 20:19 by Howard Bashman

“Supreme Court Considers Texas Sodomy Case”: The Associated Press offers this report.

Posted at 15:16 by Howard Bashman

“Federal judge is handpicked in Morales case”: Today’s edition of The San Antonio Express-News contains an article that begins:

A judge who once clashed bitterly with Dan Morales deviated from standard courthouse procedure by handpicking the judge who will oversee the criminal case against the former state attorney general.

Bypassing the courthouse computer that randomly assigns criminal cases, the region’s chief federal judge, James Nowlin, gave the Morales case to the faster and, by some accounts, tougher of the two other judges who handle Austin’s federal indictments.

You can access the article at this link.

Posted at 13:40 by Howard Bashman

“Democrats rebuff bid by Estrada”: The Hill this past Wednesday offered this report.

Posted at 13:36 by Howard Bashman

Sarasota Herald-Tribune suggests “Citadel of Irony Award” for Justice Antonin Scalia: Here, in an editorial entitled “Not so free with his speech: As protector of the First Amendment, Scalia pulls the plug on the media.”

Posted at 13:35 by Howard Bashman

“Estrada opposition fueled new caucus”: The San Antonio Express-News last week offered this report. The Miami Herald also covered this story, in an article entitled “Three GOP House members from Miami help organize new Hispanic caucus.”

Posted at 13:33 by Howard Bashman

“Ohio’s Republicans to seek conservative for high-court seat”: Today’s edition of The Toledo Blade contains this report about the effort to find a replacement for Ohio Supreme Court Justice Deborah L. Cook, nominated to serve on the U.S. Court of Appeals for the Sixth Circuit.

Posted at 13:30 by Howard Bashman

“High court to hear sodomy case; Hearing next week in challenge to Texas law, maybe others”: The March 21, 2003 issue of the Houston Voice contained this report.

Posted at 13:22 by Howard Bashman

The Detroit News today previews the University of Michigan racial preferences in student admissions cases pending before the U.S. Supreme Court: On Tuesday, April 1, 2003, the Supreme Court of the United States will hear oral argument in two cases challenging the University of Michigan‘s use of racial preferences in student admissions. Today’s edition of The Detroit News contains a number of articles about the case. The lead article is entitled “O’Connor pivotal to U-M’s cases; Experts say her vote hard to predict.” A profile of Maureen Mahoney is entitled “U-M litigator has winning record.” A profile of John Payton is entitled “Rights lawyer in familiar territory.” A profile of Kirk Kolbo is entitled “Ex-liberal takes on U-M policy.” A profile of Solicitor General Theodore B. Olson is entitled “Solicitor leaves conservative mark.” And here the newspaper takes a look at “Where the justices stand.”

Yesterday, The Detroit News reported here that “Admissions lawsuits cost U-M $9 million.” Friday’s edition of The Michigan Daily contained an article entitled “The science of diversity: ‘U’ defense cites studies linking diversity to intellectual excellence.” And Nat Hentoff, writing in The Village Voice, has an essay entitled “How Much Diversity Is Enough?”

Posted at 13:05 by Howard Bashman

Interesting law blog of the day: “The Indiana Law Blog.”

Posted at 12:24 by Howard Bashman

“Symposium: Ashcroft Justice”: A very interesting transcript from FrontPage magazine.com.

Posted at 12:20 by Howard Bashman

“Tobacco firm lawyer derides court’s reputation”: Yesterday’s edition of The St. Louis Post-Dispatch contained an article that begins, “A $10.1 billion verdict against Philip Morris USA confirms Madison County’s reputation as a paradise for plaintiffs’ lawyers looking for a big payday, a high-ranking company officer said after hearing the verdict.” In related news, you can access here an article entitled “Philip Morris must pay $10.1 billion, a new landmark” and here an article entitled “Low-key judge issued high-profile verdict.”

Posted at 12:15 by Howard Bashman

“The Command Post”: These bloggers scour the Web for war news, and then collect it all here.

Posted at 12:10 by Howard Bashman

That didn’t take very long: Clayton Cramer reports on his own blog that his status as a contributor to “The Volokh Conspiracy” has already come to an end. Because Clayton’s hyperlink for the post in question isn’t working, I’m reprinting what Cramer has written in a post dated Saturday, March 22, 2003 at 9:09 p.m. pacific time: “Back On My Own Blog Again: It turns out that there was a style inconsistency between The Volokh Conspiracy and your wonderful self. That’s life.” Wow, I predicted that result some eighteen minutes earlier last night, which may cause some to wonder if I had inside information. I didn’t.

Posted at 10:34 by Howard Bashman

Seventh Circuit Judge Richard A. Posner to serve as the next dean of the Harvard Law School? Apparently not, but this recent article from The Harvard Crimson suggests that he was among the candidates under consideration.

Posted at 10:20 by Howard Bashman

“Hyphenation is a mess”: Those of us who write for a living may learn a thing or two from (or, better yet, be reinforced in our good habits by) William Safire’s “On Language” column in today’s edition of The New York Times Magazine.

Posted at 09:55 by Howard Bashman

In Sunday’s newspapers: In The Los Angeles Times, David G. Savage reports here that “Equal Rights for Gays Faces Supreme Court Test; Justices will be asked to throw out sodomy convictions of two Texas men as well as extend constitutional privacy accorded heterosexuals.” Columnist Dana Parsons has an essay entitled “Born of Painful Klan Memories, a Simple Message for Cross-Burners.” And an editorial is entitled “Brave Quests for Freedom.”

In The Washington Times, Bruce Fein has an op-ed entitled “Confirmation treachery.”

The New York Times today contains an article entitled “Trying Again to Make Gun Makers Liable for Shootings.” The Week in Review section includes a piece entitled “Freedom: More Than Just Another Word for Nothing Left to Lose.” And you can access here letters to the editor responding to the recent New York Times Magazine cover story about the U.S. Court of Appeals for the Fourth Circuit.

Posted at 08:30 by Howard Bashman

Clayton’s Dozen: Clayton Cramer really seems to be stirring up the pot over at “The Volokh Conspiracy.” Some reactions here, here, and here (caution — this last link contains profanity). It’s even causing me to question my plan to become a pseudonymous contributor to TVC once “How Appealing” ceases to exist. I’m sure that in time, though, all will work out for the best.

Posted at 23:51 by Howard Bashman

Sunday’s edition of the BBC News war blog: Available here, with coverage of the terrorist attack on American troops in Kuwait for which an American soldier may be among those responsible.

Posted at 23:03 by Howard Bashman

More information about Chief Justice William H. Rehnquist’s speech yesterday at the University of Richmond School of Law: Available here. And Anne Gearan of The Associated Press yesterday had this report on the speech.

Posted at 15:44 by Howard Bashman

Online at law.com: The Recorder of California contains commentary by Greg Mitchell entitled “It’s Time to Split the [Ninth] Circuit.” The essay provides a link to “How Appealing” and mentions my recent “20 questions” interview with Ninth Circuit Judge Diarmuid F. O’Scannlain, which you can access directly by clicking here. Readers who were wondering how long it might take for my “20 questions” feature to gain mention by the popular press now have your answer — not very long at all. An archive containing both of my “20 questions for the appellate judge” interviews published so far exists at this link, and the third installment of the “20 questions” feature is due to appear online here on Monday, April 7, 2003.

law.com’s U.S. Supreme Court correspondent Tony Mauro provides a comprehensive preview of the upcoming oral arguments in the cases challenging the University of Michigan‘s use of racial preferences in student admissions. Tony’s lead article is entitled “Law School Admissions Face Intense Scrutiny.” It concludes:

Olson’s compromise brief was reportedly the result of conflicting pressure within the administration over the hot-button issue of affirmative action.

“It is one of the intellectually weakest briefs I’ve ever seen the United States file,” says Dellinger, in a rare rebuke of a successor. “It has a hole in the middle of it the size of Detroit. It’s as if some pages fell out of the undergraduate brief on the way to the printer, and they were stuck back into the law school brief by mistake.”

Tony also has a related article entitled “Strange Bedfellows?” Here Tony provides a sampling of the briefs filed in the cases. And here Tony summarizes all the cases to be argued at the Court over the next two weeks.

An article reporting on a recent Second Circuit decision is entitled “No Immunity for Private Defendant in Conspiracy Case.” You can access here an article entitled “Congress Comes After a Federal Judge; Sentencing at issue in subpoena uproar.” And in news from Georgia, “Cold-Calling DJs May Keep Dialing for Now.”

Posted at 12:51 by Howard Bashman

Interesting law blog of the day: “Ninomania” — now in soothing blue.

Posted at 10:55 by Howard Bashman

“Tampa trial will test antiterrorism law”: Last week The Miami Herald published this report.

Posted at 10:39 by Howard Bashman

“Love No Longer the Drug for Divorced Bryan Ferry”: Reuters has this report from London.

Posted at 10:38 by Howard Bashman

“Junk fax ruling may help antispam effort”: Declan McCullagh of c|net News.com has this report on yesterday’s ruling of the U.S. Court of Appeals for the Eighth Circuit, which I first reported on here.

Posted at 10:35 by Howard Bashman

In Saturday’s newspapers: The New York Times reports here that “Man Charged in Sept. 11 Attacks Demands That Qaeda Leaders Testify.” You can access here an article entitled “Motion Contends Sniper Defendant Killed 2.” An article reports that “Philip Morris Faces Big Penalty.” In news from Connecticut, “Ex-Mayor in Sex Trial Opens Door to Bribery Questions.” Adam Liptak has an article entitled “How Much Freedom Is Too Much?” And here’s an article entitled “Civilian Toll: A Moral and Legal Bog.”

The Washington Post reports here that “Moussaoui Asks to Call Three More al Qaeda Witnesses.” You can access here an article entitled “Experts Sought In Sniper Defense; Muhammad Asks For Investigators.” And this article reports that “Federal Agents Arrest 9 in Moves Against Possible Terrorist Funding.”

Sunday’s edition of The Los Angeles Times contains an article entitled “Raped, Pregnant and 9, She’s Cause Celebre; Despite opposition of the Catholic Church and some Nicaraguan officials, girl got an abortion. Now foes demand stricter laws.” Today’s newspaper reports here that “Moussaoui Seeks 9/11 Suspects as Witnesses.” And you can access here an article entitled “Philip Morris Loses Lawsuit; An Illinois judge orders the tobacco giant to pay $10.1 billion over claims that it deceived smokers into believing lower-tar cigarettes are safer.”

Posted at 10:10 by Howard Bashman

The Associated Press is reporting: Anne Gearan has an article entitled “Rehnquist: Independence of Court Is Vital.” In other news, you can access here an article entitled “Court Rules Against Unsolicited Fax Ads”; here, “Moussaoui Wants Testimony of Suspects”; here, “Sniper Suspect’s Lawyer Asks for Expert”; here, “Judge Orders Philip Morris to Pay $10B”; and here, “Moose Lawyer Criticizes Book Ban.”

Posted at 00:10 by Howard Bashman

“Party of One”: This upcoming Sunday’s edition of The New York Times Magazine contains a profile of Senator Lincoln Chafee (R-RI).

Posted at 00:08 by Howard Bashman

“In my fantasy Chief Justice Rehnquist delivers my baby while Justice Souter holds my hand”: No, not my fantasy, but Dahlia Lithwick’s. She explains it all here, in the final installment of her Slate diary.

Posted at 15:22 by Howard Bashman

BBC News war blog: Yesterday’s link works only for yesterday’s dispatches. To access today’s latest reports, click here.

Posted at 14:01 by Howard Bashman

And furthermore: On March 5, 2003, Ninth Circuit Judge Stephen S. Trott dissented from a ruling that the Ninth Circuit issued that day declaring unconstitutional a suspicionless parole search that produced a confession to bank robbery. Also on March 5, 2003, the Supreme Court of the United States issued several opinions (which I previously summarized here) that appear to have bolstered the arguments asserted in Judge Trott’s dissent. Accordingly, today Judge Trott has issued an amended dissenting opinion that cites to and relies on the Supreme Court decisions that issued the same day as his original dissent.

Posted at 13:44 by Howard Bashman

“Gov’t Defends Extentions of Detentions”: The Associated Press offers this report.

Posted at 12:38 by Howard Bashman

Keep it copacetic: I don’t mind the use of contractions in appellate court opinions. Indeed, the following sentence from a dissenting opinion that the Eighth Circuit issued today — “We are essentially telling school districts that its copacetic to deal with students with behavioral disabilities by punishing them for their disability, rather than finding an approach that addresses the problem.” — suggests that at least one judge should be less reluctant to use contractions. (This post’s title courtesy of Local H.)

Posted at 12:34 by Howard Bashman

900,000: “How Appealing” has just experienced its 900,000th page view since this Web log’s Bravenet hit counter was installed on May 7, 2002.

Posted at 12:24 by Howard Bashman

Eighth Circuit reverses trial court ruling which had held that federal law prohibiting unsolicited fax advertising violated First Amendment: Today’s unanimous three-judge panel’s decision of the U.S. Court of Appeals for the Eighth Circuit states at its close:

We conclude that 47 U.S.C. sec. 227(b)(1)(C) satisfies the constitutional test for regulation of commercial speech and thus withstands First Amendment scrutiny. There is a substantial governmental interest in protecting the public from the cost shifting and interference caused by unwanted fax advertisements, and the means chosen by Congress to address these harms directly and materially advances the governmental interest. The statute is also narrowly tailored to create a reasonable fit with its objective. Accordingly, we reverse the judgment dismissing the claims asserted under sec. 227(b)(1)(C) and remand the case to the district court for further proceedings consistent with this opinion.

You can access today’s opinion at this link.

Posted at 12:15 by Howard Bashman

Exploring Baghdad from the safety of your computer monitor: Newsweek via MSNBC offers this amazing eye-in-the-sky resource.

Posted at 11:28 by Howard Bashman

Law Professor Jeff Cooper mentioned in article about blogging in today’s edition of The Indianapolis Star: You can access the article here and Jeff’s blog here. Congrats, Jeff!

Posted at 11:20 by Howard Bashman

“N.Y. Man Found Guilty in Train Sex Case”: The Associated Press this morning has a report that begins, “The train was a rockin’ and the cops came a knockin’.” Today’s edition of Newsday reports here that “Man Convicted in LIRR Sex Case.” The New York Post today contains an article entitled “Menage-A-Guilty.” The NYPost’s earlier coverage included “How Conductor Uncoupled Menage A Train Trio“; “‘Sex’ Duo on Wrong Track: DA“; and “Train-Sex Woman Wanted to ‘Keep it in Family.'”

Posted at 11:18 by Howard Bashman

“No rush to replace Cook, but Taft wants to be ready”: The Associated Press offers this report from Columbus, Ohio.

Posted at 09:44 by Howard Bashman

“Bored by Estrada? Owen may prove to be a reprise”: Byron York had this essay in Wednesday’s edition of The Hill.

Posted at 09:40 by Howard Bashman

Today’s FindLaw commentator: Vikram David Amar has an essay entitled “Can’t Win for Losing–the Bizarre World of the Eleventh Amendment, Governing Suits in Federal Court Against States.”

Posted at 09:38 by Howard Bashman

“Saddam Hussein, Eco-Criminal”: Jonathan H. Adler has this essay today at National Review Online.

Posted at 09:35 by Howard Bashman

Interesting law blog of the day: “Sub Judice.” (Even if they don’t always remember my posts from long ago exactly right.)

Posted at 07:09 by Howard Bashman

“Texas Executes 300th Inmate”: The Associated Press provides this report.

Posted at 07:06 by Howard Bashman

Available online at law.com: Jason Hoppin has an article entitled “9th Circuit: Feds Can’t Try Child Porn Case.” In news from Pennsylvania, Shannon P. Duffy reports that “Minor, in Abortion Appeal, Is Ruled Capable of Deciding.” This article is entitled “2nd Circuit Revives Policewoman’s Sex Bias Claim.” And finally, you can access here an article entitled “California Prosecutors Blast Execution Moratoriums.”

Posted at 06:55 by Howard Bashman

In Friday’s newspapers: The Washington Times contains an op-ed by R. Emmett Tyrrell, Jr. entitled “A judicious sushi catch?”

In The New York Times, Adam Liptak reports that “Officer Shows Uncertainty in Disputed Drug Cases.” In news from Connecticut, “Ex-Mayor Denies Sexual Abuse of 2 Young Girls.” And an editorial is entitled “Gideon’s Trumpet Stilled.”

The Washington Post reports here that “Prosecution Agrees to 3 Experts For Malvo.” And an editorial is entitled “No Hear Ye.”

Finally for now, The Boston Globe reports here that “Church presses case to dismiss suits; Appeals Court is asked to intervene.”

Posted at 06:50 by Howard Bashman

“Court Upholds $26.5M Tobacco Verdict”: The Associated Press has this report from California.

Posted at 20:04 by Howard Bashman

BBC News war blog: Online here, with reporters seemingly based everywhere over there.

Posted at 16:39 by Howard Bashman

Day four of Dahlia Lithwick’s online Slate diary: Just posted here.

Posted at 16:03 by Howard Bashman

Eleventh Circuit upholds Florida public school’s ban on the display of Confederate flags on school grounds: An opinion that the U.S. Court of Appeals for the Eleventh Circuit issued today concludes:

In sum, the school administrators did not violate the plaintiffs’ constitutional rights by banning the display of Confederate flags on school grounds and subsequently enforcing the ban by suspending them. Having found no constitutional right violated, the plaintiffs have failed to set forth a prima facie case for sec. 1983 relief. The district court properly granted the defendant’s motion for summary judgment.

You can access the opinion at this link.

Posted at 15:55 by Howard Bashman

WWSD? Yale Law School Professor Jack Balkin and former D.C. Circuit law clerk Stuart Buck continue their discussion (here and here) about whether Justice Antonin Scalia’s interpretive approach logically should produce a ruling that upholds the constitutionality of the use of racial preferences in university admissions at issue in the University of Michigan cases.

Posted at 14:52 by Howard Bashman

WTOP news radio (CBS network) from Washington, D.C.: Providing excellent live coverage of today’s war on Iraq developments, and you can listen online via this link.

Posted at 13:49 by Howard Bashman

See “an artist’s lifelike glass-in-glass sculptures of jellyfish”: Yes, this copyright opinion that the Ninth Circuit issued today contains photos, but not color photos, unfortunately.

Posted at 13:46 by Howard Bashman

Sharply divided Ninth Circuit panel holds that Congress may not outlaw simple intrastate possession of child pornography that hasn’t traveled interstate: Today a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a majority opinion, written by Circuit Judge Stephen Reinhardt and joined in by Circuit Judge A. Wallace Tashima, that begins:

Appellant Rhonda McCoy entered a conditional plea of guilty to possession of child pornography after photo shop employees discovered a picture of her and her daughter with their genital areas exposed. Specifically, she reserved the right to appeal on constitutional grounds the denial of her motion to dismiss the charges against her. In her appeal, McCoy challenges the section of the federal statute that prohibits the possession of child pornography made with materials that have traveled in interstate commerce, 18 U.S.C. sec. 2252(a)(4)(B), asserting that the provision constitutes an unconstitutional exercise of Congress’s power under the Commerce Clause.

We hold that 18 U.S.C. sec. 2252(a)(4)(B) is unconstitutional as applied to simple intrastate possession of a visual depiction (or depictions) that has not been mailed, shipped, or transported interstate and is not intended for interstate distribution, or for any economic or commercial use, including the exchange of the prohibited material for other prohibited material.

Circuit Judge Stephen S. Trott dissented in an opinion that begins:

My colleagues have finessed an unavoidable issue in this case: whether 18 U.S.C. sec. 2252(a)(4)(B) is unconstitutional on its face. They have attempted to restrict their holding to McCoy and to others “similarly situated,” but it is not clear to me that the law permits such a limitation. I so conclude because McCoy’s conduct clearly falls within the language of the statute, and because the Supreme Court appears under such circumstances to have ruled out “as applied” challenges in Commerce Clause cases. In my view, if the conduct under review falls within the plain language of the statute, precedent requires us to take the statute head on, not carve pieces out of it. Because I disagree with my colleagues’ approach to the issues as well as to their holding, I respectfully dissent.

You can access both the majority and dissenting opinions at this link.

Posted at 13:23 by Howard Bashman

If you’re reading this, you may be thoughtful: Law Professor Rick Hasen has another interesting post about the Miguel A. Estrada standoff over at his “Election Law” blog, and his post refers to “the many thoughtful readers of How Appealing.”

Posted at 11:50 by Howard Bashman

“Pledge of Allegiance Ruling Condemned”: The Associated Press reports here that the U.S. House of Representatives has today joined the U.S. Senate in voting to condemn the Ninth Circuit‘s revised Pledge of Allegiance ruling and refusal to grant rehearing en banc.

Posted at 11:30 by Howard Bashman

Anti-war protests cause postponement of jury trials at Philadelphia’s federal courthouse: The Philadelphia Inquirer reports here that “At the federal courthouse, Michael E. Kunz, the clerk of courts, said officials told federal jurors yesterday not to report to the courthouse and canceled today’s sessions of all ongoing jury trials. The clerk’s office was open for the filing of lawsuits and litigation-related documents, Kunz said, but only essential court employees were told to report to work.” (Thanks to Adam Bonin for the pointer.)

Posted at 11:26 by Howard Bashman

“Much More Democratic Obstruction: Democrats move to kill an entire slate of Bush nominees”: Byron York has this morning has this essay at National Review Online.

Posted at 10:38 by Howard Bashman

Senate Judiciary Committee‘s vote on Priscilla R. Owen‘s Fifth Circuit nomination held over for a week at the request of committee Democrats: A reliable source so advises. Committee rules allow one such postponement, so a vote is certain to occur at the committee’s next business meeting.

Posted at 10:30 by Howard Bashman

“Ignoring Longstanding Fiduciary Duties to Tribes”: FindLaw commentator Edward Lazarus has an essay today that seeks to draw a comparison between the war against Iraq and the U.S. Supreme Court‘s recent decision in United States v. Navajo Nation.

Posted at 10:20 by Howard Bashman

Interesting law blog of the day: “SW Virginia law blog.”

Posted at 10:13 by Howard Bashman

Third Circuit holds that Pennsylvania’s prison system violated inmates’ rights by denying access to Nation of Islam texts: Yesterday a three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled 2-1 that employees of Pennsylvania’s Department of Corrections violated the First Amendment free exercise of religion rights of inmates who were members of the Nation of Islam when the prison system denied access to various texts written by Fard Muhammad, Elijah Muhammad and Louis Farrakhan. The majority proceeded to rule, however, that the prison officials were entitled to qualified immunity, and thereby unanimously affirmed the trial court’s entry of summary judgment against the plaintiffs. You can access yesterday’s ruling at this link.

Posted at 10:02 by Howard Bashman

“Man Moons Judge, Gets More Jail Time”: The Associated Press this morning offers this report. Meanwhile, an article entitled “Wis. Man Eats His 19,000th Big Mac” reports that “attorneys defending McDonald’s against a lawsuit claiming its food makes people fat used [this individual] as an example of someone who frequently ate fast food but stayed slim.”

Posted at 09:50 by Howard Bashman

The Senate Judiciary Committee is scheduled to be holding a business meeting at this hour: On the agenda is a committee vote on the nomination of Priscilla R. Owen to serve on the U.S. Court of Appeals for the Fifth Circuit.

Posted at 09:40 by Howard Bashman

“Inmate Set to Be Texas’ 300th Execution”: The Associated Press this morning has a report about the second person in line to be number 300.

Posted at 06:55 by Howard Bashman

In Thursday’s newspapers: In The Los Angeles Times, David G. Savage reports that “Some ‘Mystified’ by Award to Scalia for Free Speech; Law experts say the justice, who controls media access to his talks, has a mixed record.” In news from California, “State Death Penalty Defended; Prosecutors say the system is fair and no moratorium is needed. Report draws criticism.” And you can access here an article entitled “Charge Against Lawyer Dropped; State won’t prosecute an attorney accused of perjury by a judge. His criticism prompted an appeals court to overturn her verdict.”

In The Washington Post, Charles Lane reports that “Recordings Banned As Scalia Accepts Free Speech Award.” You can access here an article entitled “FBI Recovers Missing Copy of Bill of Rights; Document Was Stolen From N.C. During Civil War.” This article reports that “Rules on Detention Widened; FBI, Marshals Can Hold Foreigners.” In TV-related news, “Monica Fills The Bill for Fox.” And a letter to the editor runs under the heading “Behind the Estrada Filibuster.”

The New York Times reports here that “Study Challenges Case for Diversity at Colleges.” This article reports that “Ashcroft Says Retarded Man No Longer Faces Death Penalty.” And in news from Connecticut, “Ex-Mayor Linked to Semen in Waterbury Abuse Case.”

Finally for now, you can access the “Today’s Front Pages” feature from the Newseum at this link.

Posted at 06:40 by Howard Bashman

“Scalia says his beliefs and feelings can differ”: Today’s edition of The Cleveland Plain Dealer contains this report on Justice Antonin Scalia’s speech yesterday.

Posted at 06:37 by Howard Bashman

“Blawgs: More Than Just Fluff”: Robert J. Ambrogi has this article online today at law.com.

Posted at 06:25 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “Court Won’t Use Moussaoui Jail Quotes”; here, “Prosecution Rests in Child Sex Abuse Case”; and here, “Original Copy of Bill of Rights Recovered.”

Posted at 20:50 by Howard Bashman

On the eve of war: The U.S. Court of Federal Claims last Friday denied a $50 million takings claim asserted by the owner of a Sudanese pharmaceutical plant destroyed by U.S. missiles in August 1998 in retaliation for the al-Qaeda embassy bombings in Africa earlier that month. The opinion states, “No authority has been presented, among the large body of takings precedent during military operations, where the enemy target of military force was able to invoke the Takings Clause. And for good reason.” You can access the opinion at this link.

Posted at 16:57 by Howard Bashman

“Going ‘Nuclear’ on Estrada nomination”: Law Professor Rick Hasen tries to predict what Senator Trent Lott (R-MS) may have had in mind when he gave the quote that appears in this article from today’s edition of The Washington Times.

Posted at 16:10 by Howard Bashman

Guns, Wonderland, and a circuit split: Today a divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled that a defendant convicted of a misdemeanor crime of domestic violence but who never lost his civil rights as a result of that conviction may be prosecuted under federal law for possessing a firearm or ammunition, even though Congress expressly exempted from prosecution such misdemeanants who have had their civil rights restored. A circuit split already existed on this issue. In dissent, Circuit Judge H. Emory Widener, Jr. criticized the majority for applying the federal statute in an “overly-literal” manner:

Upon first glance, it might seem that the majority’s reading is correct: construing the word “restored” over-literally, the defendant’s civil rights were never revoked, therefore, there was nothing to restore and the restoration exception is inapplicable as it pertains to him. But this is like the offer of “more” tea to Alice who yet had had none.

You can access both the majority and dissenting opinions at this link.

Posted at 15:38 by Howard Bashman

From today’s edition of The Los Angeles Daily Journal: A California-based reader emails that Ninth Circuit Judge Stephen Reinhardt has an op-ed in today’s edition of The Los Angeles Daily Journal in which he writes that “[California Attorney General] Lockyer is way off base and owes Kozinski an apology” for challenging the propriety of Circuit Judge Alex Kozinski‘s visit with a San Quentin prisoner. Unfortunately, the Daily Journal op-ed is not available online. Earlier press coverage of this matter can be accessed here and here.

Posted at 15:17 by Howard Bashman

Part three of Dahlia Lithwick’s Slate diary: It’s now available online, here.

Posted at 14:19 by Howard Bashman

“White House Counsel to Give Inaugural Powell Lecture”: This press release reports that “The Honorable Alberto R. Gonzales, President Bush’s personal counsel and a former justice of the Texas Supreme Court, will give the inaugural address at Washington and Lee University’s First Annual Powell Lecture on March 31.” The Washington and Lee School of Law student who emailed to draw this press release to my attention advises that he has already drawn to his school’s attention the error in the press release about Justice Lewis F. Powell, Jr.‘s prior judicial service.

Posted at 14:01 by Howard Bashman

Student newspaper at Cal. Berkeley thinks U.S. Supreme Court hears testimony? Today’s edition of The Daily Californian contains an article entitled “Affirmative Action: Supreme Court to Hear Testimony in April.” And the article’s first sentence states, “In less than two weeks, the U.S. Supreme court will hear testimony on the University of Michigan’s race-conscious admissions policies.”

While I agree that the legality of racial preferences in university admissions presents an important and perhaps difficult question, isn’t it also a bit troubling that a student newspaper reporter and editors at a highly regarded university apparently haven’t a clue concerning how the Supreme Court of the United States goes about deciding cases. Here’s a hint — it doesn’t involve hearing testimony.

Posted at 12:16 by Howard Bashman

Washington, D.C.’s “tractor man” is now in police custody: WTOP radio is reporting that he has surrendered peacefully. For background, click here.

Posted at 11:46 by Howard Bashman

Balkin’s backwards on Scalia: That’s what Stuart Buck argues, here.

Posted at 11:38 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “Justice Bans Media From Free Speech Event”; here, “Mich. Judge Denies Separate Terror Trial”; and here, “Pa. Judge Orders Spanish Ballots.”

Posted at 11:28 by Howard Bashman

“[A]t no time has this Department of Justice or the White House ever reviewed the memoranda that Miguel Estrada wrote during his tenure in the Solicitor General’s office.” Yesterday Acting Assistant Attorney General Jamie E. Brown, of the U.S. Department of Justice’s Office of Legislative Affairs, sent a letter to Senate Minority Leader Tom Daschle (D-SD) “to correct a significant and recurring misstatement of fact regarding the nomination of Miguel Estrada.”

You can access the complete text of Ms. Brown’s letter online here, at “How Appealing Extra.” (P.S. to The Washington Times — Jamie E. Brown is a she, not a he.)

Posted at 11:13 by Howard Bashman

U.S. Supreme Court oral argument transcripts for February 2003 argument session: They are now all available online, here.

Posted at 10:08 by Howard Bashman

Today’s FindLaw commentary: Law Professor Michael C. Dorf has an essay entitled “Is the War on Iraq Lawful?” And Barton Aronson addresses “Are the Lawsuits Against Gun Makers Really the Best Way to Address the Huge Costs of Gun Violence?”

Posted at 10:01 by Howard Bashman

Interesting law blog of the day: “Rory Perry’s Weblog.”

Posted at 07:00 by Howard Bashman

Today’s Antonin Scalia Ohio speaking tour news: This morning’s edition of The Cleveland Plain Dealer reports here that “Scalia requests ban on broadcast media at talk.” The Associated Press reports here that “Justice bans broadcast media from speech” and here that “Justice Scalia says war justifies rights’ recess.”

Posted at 06:56 by Howard Bashman

Elsewhere in Wednesday’s newspapers: The Washington Times reports here that “Estrada nomination ‘on life support.'” In news from Maryland, “Senate upholds death penalty.” And an op-ed by Terry Eastland is entitled “A milestone for judicial nominations.”

The Los Angeles Times reports here that “Gulf War Veteran Executed for 1995 Murder; Lawyers for Louis Jones Jr. tried to show his exposure to nerve gas and apparent brain damage led him to kill an Army recruit.” You can access here an article entitled “Rights Groups Blast Policy to Detain Asylum Seekers.” An article reports that “Judge Finds Antiabortion Activist Guilty of Murder; James C. Kopp faces up to 25 years in prison for killing a New York obstetrician. At his request, he was tried without a jury.” And an editorial is entitled “Hypocrisy in Abortion Vote.”

The Boston Globe reports here that “Antiabortion extremist convicted of murder; Doctor gunned down at his home in 1998.” And this article reports that “SJC chief lobbies legislators on courts.”

Posted at 06:30 by Howard Bashman

“Antonin Scalia Declares Affirmative Action Constitutional”: Yale Law Professor Jack Balkin provides this explanation over at his blog, “Balkinization.”

Posted at 00:37 by Howard Bashman

In Wednesday’s newspapers: In The New York Times, Linda Greenhouse reports here that “Libertarians Join Liberals in Challenging Sodomy Law.” You can access here an article entitled “Guilty Verdict in Killing of Abortion Provider.” An article is entitled “A Capital Case, and a Defendant Who May Be Retarded.” Adam Liptak reports here that “Texas Drug Sting Leader Defends Methods and Men.” And an article is entitled “Tobacco Companies Pledge to Fight Justice Department.”

The Washington Post reports here that “In Major Case, U.S. Alleges Tobacco Firms’ Conspiracy.” You can access here an article entitled “In Detroit, First Post-9/11 Terrorism Trial; Credibility of Justice Dept. Tactics at Stake, Experts Say.” This article reports that “Antiabortionist Guilty of Killing Doctor; Convicted by Judge, Kopp Faces 25 Years to Life in Shooting of Gynecologist.” In local news, “Execution Moratorium Rejected; Md. Senators Opposed to Bill Say Sufficient Safeguards Exist.” An editorial is entitled “Stalled on Soft Money.” And a letter to the editor runs under the heading “Scenes From Camp Limbo.”

Finally for now, The Christian Science Monitor contains an editorial entitled “Libraries and Web Porn.”

Posted at 00:15 by Howard Bashman

The AP’s report on Justice Scalia’s speech this evening is entitled “War Means Rights May Be Scaled Back”: You can access the article — which begins “The government has room to scale back individual rights during wartime without violating the Constitution, Supreme Court Justice Antonin Scalia said Tuesday” — at this link.

Posted at 22:55 by Howard Bashman

“Judicial Conference Asks Congress to Create 57 New Judgeships”: The Administrative Office of the United States Courts today issued this press release. Eleven additional U.S. Court of Appeals judges are included in the fifty-seven. Seven of those eleven are slated for the Ninth Circuit, two for the Second Circuit, and one each for the First Circuit and the Sixth Circuit.

Posted at 22:48 by Howard Bashman

Available online at law.com: Jason Hoppin has an article entitled “Ninth Circuit Tops New-Judge Wish List; Biggest and busiest court would get 7 of 11 new circuit seats.” If approved, the Ninth Circuit would have thirty-five authorized active judgeships. A related chart is accessible here. Vivian Berger has a commentary entitled “Consenting Adults.” And in news from New Jersey, you can access here an article entitled “Laser Surgeon Loses Appeal Against Med-Mal Lawyer.”

Posted at 22:44 by Howard Bashman

“NAACP reps travel to hear Scalia lecture, back admissions policies”: Today’s edition of The Michigan Daily contained this report.

Posted at 22:15 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “Court Won’t Reconsider Anti-War Lawsuit”; here, “‘Religious Candy’ Students Win Case”; here, “GOP Hispanics Form Congressional Group”; and here, “Girl Testifies Against Connecticut Mayor.”

Posted at 22:14 by Howard Bashman

“Unprecedented Logic: Why slippery-slope arguments against invading Iraq don’t hold water.” The foreign policy of UCLA School of Law Professor Eugene Volokh is on display in this essay posted online this evening at Slate.

Posted at 19:38 by Howard Bashman

“Must…sleep”: Wow, a law student’s blog that’s both interesting and entertaining. Thanks, Denise, for the pointer.

Posted at 16:27 by Howard Bashman

War in Iraq: That’s the name of Jeff Jarvis’s very interesting war-news Web log. Meanwhile, Kevin Sites is a CNN war correspondent who is blogging from inside Iraq. LT Smash is “Live from the Sandbox.” And The Guardian is all set to map the war, as you’ll see here and here.

Posted at 16:02 by Howard Bashman

Fourth Circuit upholds on direct appeal federal death sentence imposed for murder committed in national forest: Among the defendant’s arguments on appeal was that “that the indictment was defective under the Fifth Amendment Indictment Clause, as interpreted in light of Ring v. Arizona, 122 S. Ct. 2428 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000), for failing to allege aggravating circumstances necessary for the imposition of the death penalty, and that absent such allegations, the death penalty could not have been imposed.” The three-judge panel was unanimous in its rejection of this argument, although the panel split 2-1 on the rationale.

You can access today’s ruling of the U.S. Court of Appeals for the Fourth Circuit at this link. The defendant had previously been sentenced to death in North Carolina state court, but the Supreme Court of North Carolina set aside that death sentence in 1998 in an opinion you can access here.

Posted at 15:19 by Howard Bashman

First Circuit denies “petition for rehearing on an emergency basis” in appeal challenging President’s authority to initiate war against Iraq: You can access today’s order of the U.S. Court of Appeals for the First Circuit at this link.

Posted at 14:56 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “Man Convicted in Abortion Doctor Slaying” and here an article entitled “Mich. Terror Trial Jury Selection Closed.”

Posted at 14:46 by Howard Bashman

Dahlia Lithwick is the Stay-Puft Marshmallow Man: And she has a photo to prove it, here in part two of her week-long Slate diary.

Posted at 14:24 by Howard Bashman

D.C. Circuit holds that “catalyst theory” remains viable basis on which to award attorneys’ fees under the Clean Air Act: You can access today’s decision of the U.S. Court of Appeals for the D.C. Circuit at this link. (Thanks to Jason Rylander for the pointer.)

Posted at 14:18 by Howard Bashman

Access the Committee Print of the Senate Judiciary Committee‘s 2002 confirmation hearing for Fifth Circuit nominee Charles W. Pickering, Sr.: You can access it in either HTML or PDF format via this post at the Greedy Clerks Board.

Posted at 13:56 by Howard Bashman

“Scalia says he can’t judge constitution on when it was written”: Another report on yesterday’s speech.

Posted at 13:41 by Howard Bashman

Ninth Circuit reinstates damages claim brought by FAA employee who objected to suspicionless search of his vehicle at entrance to Air Force Base: Today’s opinion for a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit begins:

As a matter of first impression in this Circuit, we must decide when a search conducted at the entry gate to a military base is reasonable. Because such installations often warn of the possibility of search as a condition to entry, a warrantless search of a person seeking to enter a military base may be deemed reasonable based on the implied consent of the person searched. We remand to the district court to allow the development of a more complete factual record to determine whether implied consent was present here.

You can access the complete opinion at this link.

Posted at 13:29 by Howard Bashman

“GOP Fails to Break Judicial Filibuster”: The Associated Press offers this report.

Posted at 13:13 by Howard Bashman

The third Miguel A. Estrada cloture vote fails by a vote of 55 for, 45 against: Sixty votes for were needed to invoke cloture. Fifty-five votes for is the same number of Senators who voted in favor of cloture in the first two cloture votes. Update: The official vote tally is now available via the U.S. Senate’s Web site, and you can access it here.

Posted at 12:28 by Howard Bashman

“Judging Pay: Rehnquist has for years argued that low salaries threaten the quality of the nation’s judiciary. He just hasn’t made the case.” Law Professor Steven Lubet has this commentary in the March 2003 edition of The American Lawyer.

Posted at 12:25 by Howard Bashman

Here’s a problem of which I was unaware: The Associated Press reports here that the state Senate of Tennessee voted yesterday to ban the occupants of automobiles from watching pornography videos if the images can be seen by those outside the automobile.

Posted at 12:08 by Howard Bashman

The Miguel A. Estrada cloture vote (round three) is now underway: Results to follow soon. You can watch the vote live online here, via C-SPAN2.

Posted at 12:03 by Howard Bashman

Do-over: The Senate Judiciary Committee is scheduled to vote (again) on Priscilla R. Owen‘s nomination to serve on the U.S. Court of Appeals for the Fifth Circuit at a business meeting that will occur on Thursday, March 20, 2003. The Judiciary Committee has revamped its Web site a bit, and you can access here its newfangled “Report on Nominees” (PDF file).

Posted at 10:56 by Howard Bashman

You’re welcome: Sam Heldman joins me in welcoming Clayton Cramer to The Volokh Conspiracy.

Posted at 10:51 by Howard Bashman

“‘JEWBAN’ plate A-OK, says DMV”: Saturday’s edition of The Miami Herald contained this report. And last Friday the Herald published an article entitled “‘JEWBAN’ to state: Hands off my plate!” Friday’s article also explains whether a Florida resident was allowed to keep a license plate bearing the word “ATHEIST.”

Posted at 10:41 by Howard Bashman

“Justice of top court visits UT for lecture”: Today’s edition of The Toledo Blade contains this report on Justice Antonin Scalia’s visit yesterday to The University of Toledo. Today Justice Scalia is scheduled to speak at John Carroll University on the topic of “Catholicism and Justice.”

Posted at 10:25 by Howard Bashman

And now, for my next trick: First, “How Appealing” — with a crucial behind-the-scenes assist from Third Circuit Chief Judge Edward R. Becker — convinced the Tenth Circuit to list precedential opinions separately from non-precedential opinions on that court’s Web site.

Second, yesterday the Eleventh Circuit began to offer its published opinions in PDF format over the court’s own Web site, as I noted here last night. Easy opinion access via the Eleventh Circuit’s Web site has been something “How Appealing” has advocated almost since this blog’s inception some ten months and twelve days ago.

What’s next on my agenda? Convincing the U.S. Court of Appeals for the Sixth Circuit to issue online PDF opinions that are paginated in an actually useful format. (Click here for a recent example of what’s wrong with the current format. And for examples of PDF opinion formats that make sense, click here, here, or here.)

Posted at 09:41 by Howard Bashman

Interesting law blog of the day: “The Trademark Blog.”

Posted at 07:00 by Howard Bashman

On today’s agenda: The U.S. Senate is scheduled to hold its third cloture vote today on the nomination of Miguel A. Estrada to serve on the D.C. Circuit. The past two cloture attempts both fell five votes short of the sixty needed to invoke cloture. Today’s vote is expected to occur at noon eastern time.

Posted at 06:55 by Howard Bashman

Elsewhere in Tuesday’s newspapers: Today’s edition of The Los Angeles Times contains a front page article entitled “Cries for Freedom Still Ring: In long-ago lawsuits uncovered in St. Louis, slaves tell of their suffering. Dozens won release from bondage before all-white juries.” An article reports that “Abortion Foe Says Slaying Was Unintended; James C. Kopp meant only to wound a Buffalo, N.Y., doctor in 1998, his lawyer argues. The trial of the onetime fugitive is finished in one day.” Elsewhere, this article reports that “Ruling Might Aid Defense in Ex-Judge’s Porn Case; Jurist calls the hacker who alerted police a government informant against Ronald Kline, raising constitutional concerns.” From the forest comes news that “Tree-Sitters Forcibly Removed; With police help, Pacific Lumber Co. begins taking activists from redwoods.” A report about a decision that the Supreme Court of California issued yesterday is entitled “Court Clarifies Rights of Defendants as Lawyers.” And an op-ed by a former law clerk to U.S. Supreme Court Justice Antonin Scalia is entitled “Good for GM, Bad for Racial Fairness.”

The Boston Globe reports here that “Victim’s daughter says US lied about crash; Ruling from 1948 accident shapes national security law.” From Buffalo comes an article entitled “Intent was to wound doctor, gunman’s lawyer maintains.” And an editorial is entitled “DNA tests’ value.”

USA Today reports here that “Trial for Muslim terror suspects is ‘test for justice’; Prosecutors say group belonged to sleeper cell.” And The Washington Times contains an op-ed by Bruce Fein entitled “Judges treading with care.”

Posted at 06:30 by Howard Bashman

Today’s FindLaw commentators: Julie Hilden has an essay entitled “A Unanimous Supreme Court Decision Means Whistleblowers Can Go After Counties, Not Just Companies,” and guest contributor Paul R.Q. Wolfson has an essay entitled “Can Congress ‘Find’ That the Supreme Court Was Wrong About Evidence? It Attempts to Do Just That in a Pending Abortion Bill.”

Posted at 06:25 by Howard Bashman

In Tuesday’s newspapers: The New York Times reports here that “U.S. Seeks $289 Billion in Cigarette Makers’ Profits.” Adam Liptak has an article entitled “Texas Cases Challenged Over Officer’s Testimony.” And you can access here an article entitled “As Layoffs Rise, So Do Age-Discrimination Charges.”

Finally for now, The Christian Science Monitor contains an editorial entitled “Terror Detainees and US Law.”

Posted at 00:10 by Howard Bashman

Available online from law.com: You can access here an article entitled “Law Firm Sanctions Vacated by 2nd Circuit; Pennie & Edmonds had acted in good faith.” I previously mentioned that ruling in a post you can access here. In news from Texas, “Court Sides With State in Mental Hospital Sovereign Immunity Case.” Finally, Marcia Coyle reports here that “Outlook Brightens for Action on Asbestos; Lawmakers are closer on the issue.”

Posted at 22:45 by Howard Bashman

Will miracles never cease! As of today, the Eleventh Circuit allows direct Internet access to its for-publication opinions via the court’s Web site. You can access today’s lone published opinion at this link. Today’s opinion, ironically, is written by a Senior Circuit Judge sitting by designation from the U.S. Court of Appeals for the Sixth Circuit. Excellent work Eleventh Circuit, and welcome to the information age!

Posted at 22:29 by Howard Bashman

Word from the U.S. Senate on tomorrow’s Miguel A. Estrada cloture vote: Just received the following email from someone who works at the U.S. Senate: “The cloture vote is at noon. There will be no debate prior to the vote. I do not know if Dr. Frist will be speaking following the vote, but suspect that he will not because they’re trying to get back to the Budget and have time considerations there. So, in short, expect no news tomorrow.”

Posted at 19:56 by Howard Bashman

And in other news from Ohio: The Dayton Daily News reports here that “Club drops student in pledge dispute.”

Posted at 19:54 by Howard Bashman

“Supreme Court Justice Visits Toledo”: The Associated Press provides this report on Justice Antonin Scalia’s appearance today.

Posted at 19:53 by Howard Bashman

“High Court Won’t Block Gulf Vet Execution”: The Associated Press offers this report, which concludes: “If the execution [scheduled to occur tomorrow] proceeds, Jones would be the third person – after Oklahoma City bomber Timothy McVeigh and drug kingpin Juan Garza – put to death by the federal government since 1963.”

Posted at 17:18 by Howard Bashman

“Plaintiffs Seek Anti-War Suit Rehearing”: The Associated Press has this report from Boston.

Posted at 16:52 by Howard Bashman

“Justice O’Connor speaks on diversity”: The Lantern — The Ohio State University‘s student newspaper — has this report (free registration required). The blog “Zipsix,” meanwhile, has now also posted a report (free registration not required).

Posted at 16:48 by Howard Bashman

“S.C.’s Shedd sworn in as appeals court judge”: This past Saturday’s edition of The State contained this Fourth Circuit-related news.

Posted at 16:36 by Howard Bashman

Dahlia Lithwick is this week’s Slate diarist: Her first entry, just posted online, begins: “A brief, precatory disclaimer, for those of you reading this week’s ‘Diary’ in the hopes of gaining life-changing insight on the inner workings of the U.S. Supreme Court: I am 36 weeks pregnant and change. Which means that at any moment now, my belly button will simply pop out with a ping and the Wee Bald Stranger will be cooked–like a blueberry Poptart.”

Posted at 15:05 by Howard Bashman

“A man who took power illegally is now taking us into war.” Yale Law School Professor Jack M. Balkin speaks his mind in this post from earlier today at his blog, “Balkinization.”

Posted at 14:45 by Howard Bashman

“Rule Breaker: When it comes to Helen Thomas, Miguel Estrada and acts of war, George W. Bush isn’t big on convention.” The American Prospect today offers this essay by Mary Lynn F. Jones.

Posted at 14:42 by Howard Bashman

“Keeping 2004 in focus”: Today’s edition of The Washington Times contains this commentary.

Posted at 14:40 by Howard Bashman

But is it cruel and unusual itchiness? The Associated Press this afternoon reports here that “Jail Seeks Source of Inmates’ Itchiness.” The Charleston Daily Mail provides additional coverage at this link.

Posted at 14:21 by Howard Bashman

Virgin Islands District Court Judge files amicus brief asking U.S. Supreme Court to hold that territorial courts are Article III courts: I received the following email this afternoon from a reader who clerks for a judge on a U.S. Court of Appeals:

I just wanted to alert you to an interesting development in Nguyen v. U.S., which is presently pending before the Supreme Court. As you know, Nguyen involves the consolidated appeal by two criminal defendants who were convicted of drug charges in the District Court of Guam. The convictions were upheld on appeal to the Ninth Circuit by a panel consisting of two regular Ninth Circuit Article III judges (Judges Schroeder and Goodwin) as well as Judge Alex Munson, the non-Article III judge of the District Court for the Northern Mariana Islands. The defendants filed a cert petition challenging the Ninth Circuit’s judgment affirming their convictions, arguing that the judgment “is rendered invalid by the participation of a non-Article III judge on the panel.” The Court granted cert last November, and argument is set for the 24th of this month.

The exciting development (limiting the domain to law geeks, of course) is that on Feb. 21, Judge Thomas Moore of the District Court of the Virgin Islands filed an amicus brief with the Supreme Court. Judge Moore’s brief is certainly worth mention for its arguments alone — e.g., that the Insular Cases should go the way of Plessy, and that territorial judge are de facto Article III judges — but it is perhaps more notable for the simple fact that it represents the (to say the least) extremely unusual step of a currently-presiding judge filing a brief in a pending case. The ethical issues inherent in doing so are significant and challenging, and the brief is certain to raise a few eyebrows; indeed, it seems that raising a few eyebrows, and accordingly getting some publicity for the way we treat the territories generally and our territorial judges specifically, was much of Judge Moore’s goal.

Thanks to the good folks at SCOTUSblog, I have been able to post a copy of Judge Moore’s amicus brief at this link. I previously discussed the Nguyen case and provided links to additional background materials in a post you can access here.

Posted at 14:14 by Howard Bashman

Must be a hub-and-spokes type: Clayton Cramer becomes the twelfth person to join “The Volokh Conspiracy.” Only time will tell whether Clayton’s writings about the Ninth Circuit will become more respectful.

Posted at 13:19 by Howard Bashman

“20 questions for the appellate judge,” part three: I have just dispatched via email 20 questions to the third appellate judge who volunteered to participate in this Web log’s newest monthly feature, “20 questions for the appellate judge.” My questions and the interviewee’s answers are due to be published online here on Monday, April 7, 2003. April’s interviewee serves on a state court of last resort located in the South, and I for one am very much looking forward to her answers. You can access the first two installments of the “20 questions” feature here. Five interview slots remain open for the balance of 2003, and those slots will be filled by the next five appellate judges who volunteer to be interviewed. To volunteer, simply send me an email from your official court address, and I’ll promptly respond to advise you of the month in which your interview will appear and the date on which you can expect to receive your written questions from me.

Posted at 12:49 by Howard Bashman

Interesting law blog of the day: “FourthAmendment.com.”

Posted at 09:44 by Howard Bashman

“The Left’s Estrada plan revealed!” Robert Alt offers these thoughts this morning at National Review Online.

Posted at 09:36 by Howard Bashman

“Falsely Accused ‘Enemies’ Deserve Due Process”: Stuart Taylor Jr. has this essay in the current issue of National Journal.

Posted at 09:32 by Howard Bashman

“Race-Related Cases Test Court’s Mettle, Justice Says at OSU”: Saturday’s edition of The Columbus Dispatch contained this report. Meanwhile, today’s edition of The Michigan Daily reports here that “BAMN rallies during O’Connor speech.”

Posted at 06:50 by Howard Bashman

Elsewhere in Monday’s newspapers: In The Washington Times, Frank J. Murray reports that “Execution rate drops as scrutiny intensifies.” And Nat Hentoff has an op-ed entitled “A secret quota.”

Today’s edition of The Los Angeles Times contains an article entitled “Terror Plots, Not Actions, Go on Trial; Ashcroft hails four cases against disaffected U.S. citizens or immigrants. Foes cite poor judgment.” And David Cole has an op-ed entitled “Still No Equal Justice for Poor.”

Posted at 06:40 by Howard Bashman

In Monday’s newspapers: The New York Times contains an article entitled “As Abortion Battle Escalates, Both Sides Look to the Supreme Court.” From Detroit comes news that “Trial Set to Begin for Four Men Accused of Being in Terror Cell.” And letters to the editor appear under the heading “Filtering the Web, for Better or Worse.”

Finally for now, The Washington Post reports here that “Abortion Doctor’s Killer Waives Jury Trial.”

Posted at 00:16 by Howard Bashman

“Elected judges are best for Texas”: Today’s edition of The Jacksonville Daily Progress contained this op-ed.

Posted at 23:37 by Howard Bashman

“Black groups shunning Pickering”: The Clarion-Ledger last Tuesday contained this article.

Posted at 23:35 by Howard Bashman

Reader mail: The following email arrived just a few moments ago:

I don’t know about you, but I thought that piece by Linda Greenhouse in the New York Times today about Chief Justice Rehnquist epitomized unconscious liberal bias. Let’s rehash the facts. In the Rummel case, a criminal defendant challenged the state’s “three-strikes” law, claiming that he had a constitutional right to not be punished severely as a recidivist felony offender. This was a novel claim, and the Court rejected it, declining the invitation to create a new constitutional right. As Greenhouse concedes, and as C.J. Burger laid out in dissent, the Court ignored Rummel in Solem v. Helm and decided there that the Constitution indeed created just such a right. (By way of full disclosure, I clerked for [name of U.S. Supreme Court Justice omitted] that term.) In the current case, the Court has discarded Solem and returned to the Rummel holding. Greenhouse characterizes all this as a product of a decades-long campaign by Rehnquist to “turn the court toward greater deference to the states.” Her implication is that Rehnquist is a radical, intent on imposing dramatic changes on our constitutional structure. Of course, that is not what these cases illustrate at all. What they illustrate is that Rehnquist and his colleagues are unreceptive to claims that the courts should create new constitutional rights which have no basis in this country’s history or its jurisprudence. What is remarkable to me is how Greenhouse views the liberal justices’ willingness to create brand new rights as the norm, while the refusal to do so is somehow underhanded and sneaky.

You can access the article that is the subject of the above email at this link.

Posted at 22:20 by Howard Bashman

“Captures reopen tribunal questions; Terrorism suspects seen as candidates”: Today’s edition of The Chicago Tribune offers this report. (Via “TalkLeft.”)

Posted at 20:39 by Howard Bashman

On the eve of Justice Antonin Scalia’s three-day tour through Ohio: Justice Sandra Day O’Connor spoke this past Friday at the Moritz College of Law of The Ohio State University. The Law School has a press release that reports on Justice O’Connor’s visit, and you can access photos here.

Posted at 20:34 by Howard Bashman

Senator Arlen Specter (R-PA) says Miguel A. Estrada will be confirmed to serve on the D.C. Circuit: See this article published in today’s edition of The Pittsburgh Post-Gazette.

Posted at 18:10 by Howard Bashman

Opinions from Denver: Today’s edition of The Rocky Mountain News contains an editorial entitled “Filibustering Estrada.” And today’s edition of The Denver Post contains an op-ed by Al Knight entitled “Why they change the subject.”

Posted at 18:00 by Howard Bashman

Coming soon to a newsstand near you: The March 24, 2003 edition of Newsweek contains an article entitled “Rumble for the Robes: Miguel Estrada is no household name. But both parties see his bid for a judgeship as an issue in 2004.” And the March 24th edition of U.S. News and World Report contains an article entitled “Docs vs. lawyers: Who should decide when and how to perform an abortion?”

Posted at 17:58 by Howard Bashman

“Top justice to render law views in UT talk; High court’s Scalia gives pointed opinions”: Today’s edition of The Blade of Toledo, Ohio contains this report.

Posted at 17:57 by Howard Bashman

Interesting law blog of the day: “Legal Theory Blog.”

Posted at 17:56 by Howard Bashman

Too nice out to blog: It’s sunny and nearly 70 degrees outside — the first warm day in who remembers how long — so I’ll see you again after sundown.

Posted at 13:11 by Howard Bashman

In Sunday’s newspapers: In today’s edition of The New York Times, Linda Greenhouse has an article entitled “For a Supreme Court Graybeard, States’ Rights Can Do No Wrong.” Adam Liptak reports here that “Condemned Killer Exposed to Nerve Gas Seeks Mercy” and also has an article entitled “You Think DNA Evidence Is Foolproof? Try Again.” The Week in Review section reports that “The Senate Acts on Abortion.” And in local news, “Antiwar Group Gets a Permit for a March.”

The Washington Post reports here that “Tabloid’s First Amendment Suit Against St. Mary’s Stands.” And you can access here an article entitled “Malvo Writings Found in Cell, Authorities Say; Notes, Drawings Refer To Reggae, Philosophers.”

Today’s edition of The Los Angeles Times reports here that “FBI Casts Wide Net to Battle Terrorism; Separating those who pose a threat from mere sympathizers proves complex. Investigators are using their powers like never before.” This article from The Associated Press is entitled “Informants May Get a Pass on Murder; Former FBI agents say violent crimes can be ignored because they are seen as a necessary evil of criminal investigation.” In letters to the editor, several letters run under the heading “Laws That Put ‘God’ on Money and in Pledge,” while a single letter runs under the heading “Judicial Nominees.”

Finally for now, The Boston Globe contains an op-ed by Ellen Goodman entitled “A final skirmish in war against consensual sex.”

Posted at 11:00 by Howard Bashman

Tonight on C-SPAN‘s “America and the Courts“: The online program guide provides this description of tonight’s show: “This week, America and the Courts presents a portion of the Senate’s debate on judicial nominations from Tuesday, March 11, 2003. With Vice President Dick Cheney presiding, the Senate debated Miguel Estrada’s nomination to the U.S. Court of Appeals for the DC Circuit. The Senate began debating Mr. Estrada’s nomination on February 6th. On Thursday, March 20, 2003 the second cloture vote also failed with a vote of only 55 out of the 60 votes needed for ending debate.”

Posted at 15:14 by Howard Bashman

“U.S. Supreme Court Justice Scalia to Speak Monday”: On Monday, March 17, 2003, Justice Antonin Scalia will speak at the University of Toledo, according to this press release (and this one, too). The event is sponsored by The University of Toledo College of Law.

On Tuesday, March 18th, Justice Scalia is scheduled to speak at John Carroll University on the topic of “Catholicism and Justice.”

Finally, on Wednesday, March 19th, Justice Scalia will receive The Citadel of Free Speech Award from the City Club of Cleveland and will deliver a speech at the event.

Posted at 14:57 by Howard Bashman

“Estrada opposition short on facts”: The Arizona Republic today contains this letter to the editor.

Posted at 14:53 by Howard Bashman

“It’s often a win when Court doesn’t act”: Yesterday’s edition of Indian Country Today contained this article. And you can access here an editorial entitled “Supreme Court deals a win and a lesson.”

Posted at 14:52 by Howard Bashman

“Assistant Attorney General Jay Bybee Confirmed as Ninth Circuit Judge”: The Metropolitan News-Enterprise yesterday provided this report.

Posted at 14:50 by Howard Bashman

“Library cops: Can Washington require Internet ‘filters’?” Today’s edition of The Pittsburgh Post-Gazette contains this editorial.

Posted at 14:49 by Howard Bashman

“Victim’s family stunned by stay in Banks case”: Yesterday’s edition of The Houston Chronicle contained this report.

Posted at 14:46 by Howard Bashman

“What, besides ethnicity, explains the disparate treatment of these two judicial nominees?” The Committee for Justice yesterday issued this press release.

Posted at 14:44 by Howard Bashman

Ruby, Zeus, and Miguel A. Estrada: The photo that The Washington Post left out of the online version of its profile yesterday of this D.C. Circuit nominee can now be viewed online here, courtesy of The Detroit News.

Posted at 14:42 by Howard Bashman

Interesting law blog of the day: “How Green Is My Country.”

Posted at 09:49 by Howard Bashman

“Eyman a ‘horse’s ass’? We may never know”: In law-related news from Washington State, The Seattle Times brings us this report from The Associated Press. Today’s edition of The Seattle Post-Intelligencer contains an article entitled “A bum rap? Eyman initiative is ruled out.” And a Web site in support of the ballot initiative in question can be accessed here.

Posted at 09:36 by Howard Bashman

In Saturday’s newspapers: Today’s edition of The New York Times contains a lengthy article by Eric Lichtblau with Adam Liptak entitled “On Terror and Spying, Ashcroft Expands Reach.” You can access here an article entitled “Battle Over Judgeship Tests Congressman’s Loyalties.” In news from Connecticut, “6 Men Say They Drove Girls to Ex-Mayor.” And this report states that “5 in Jogger Case Plan to Sue, Lawyers Say.”

The Washington Post reports here that “U.S. Files Terror Briefs in Secrecy; 4th Circuit to Rule In Moussaoui Case.” And an article bears the headline “More Experts Sought For Malvo Defense; Lawyers Ask Judge to Limit Testimony.”

In The Boston Globe, Lyle Denniston reports that “Lawyers hoping to avert war plan push to reopen case.”

Today’s edition of The Los Angeles Times contains an article entitled “Torture, handled lightly” and a related article entitled “The art of interrogation: Experts say subtle psychological ploys may be better than thumbscrews when it comes to getting terror suspects to confess.” An article that could have received the headline “Good news for Good News” instead is entitled “District Drops Fee for Campus Use by Religious Groups; Sponsors of evangelical club said the $60 charge was unconstitutional. Others had free access.” Finally, letters to the editor run under the heading “Fallout of Three Strikes.”

Posted at 08:59 by Howard Bashman

In news from Columbus, Ohio: You can access here a report entitled “Affirmative Action Rally Greets Justice O’Connor; Court To Hear Case April 1.” And yes, zipsix was present for Justice O’Connor’s speech and promises a full report soon.

Posted at 22:49 by Howard Bashman

Available online at law.com: “Democrats Likely to Filibuster Owen Nomination,” this article reports. Tony Mauro has an article entitled “Supreme Court May Revisit Same-Sex Harassment Issue.” In news involving the Third Circuit, Shannon P. Duffy reports here that “3rd Circuit Opts to Drop Class Action Appeal; Action sets aside panel decision viewed as short-circuiting class actions” and here that “TWA Vouchers Ruled Invalid After Sale of Airline’s Assets.” Finally, The Recorder of California runs comments from individuals serving “Three Strikes” sentences in that State, and you can access here an essay entitled “Gideon’s Gift.”

Posted at 22:24 by Howard Bashman

En banc Fifth Circuit upholds death sentence of Texas defendant who alleged abuse endured as a child as a mitigating circumstance: Today an overwhelming majority of the en banc U.S. Court of Appeals for the Fifth Circuit rejected a Texas death row inmate’s challenge to jury instructions that, according to the inmate, did not allow the jury at sentencing to give adequate consideration to mitigating evidence that he had been subjected to abuse as a child. Although the defendant’s jury received the same instructions that the U.S. Supreme Court found to be unconstitutional in Penry v. Johnson (2001), today the Fifth Circuit ruled that the instructions were adequate in this defendant’s case. You can access the en banc court’s decision and the opinions concurring in and dissenting from the decision at this link.

Posted at 19:42 by Howard Bashman

Dissent accuses Second Circuit majority of creating circuit split on standard for imposing Rule 11 sanctions: Today a three-judge panel of the U.S. Court of Appeals for the Second Circuit issued a decision that, by a 2-1 vote, vacated a federal district court’s imposition of Rule 11 (Fed. R. Civ. P. 11) sanctions against the law firm of Pennie & Edmonds LLP.

In dissent, District Judge Stefan R. Underhill of the U.S. District Court for the District of Connecticut, sitting by designation, writes:

Prior to 1983, the imposition of sanctions under Rule 11 required a finding of subjective bad faith. When amending Rule 11 in 1983, however, the drafters abandoned the subjective bad faith standard and adopted a standard of “reasonableness under the circumstances.” Since adoption of the 1983 amendments, the Supreme Court and every court of appeals has held that district courts should apply an objective reasonableness test when deciding whether Rule 11 has been violated. With today’s decision, the Second Circuit becomes the first and only court to hold that the 1993 amendments to Rule 11 reverted to the pre-1983 subjective bad faith standard for even a subset of Rule 11 sanctions. The majority bases its holding principally on a single sentence from the Advisory Committee notes to the 1993 amendments and on its own policy analysis. In my view, neither basis can support the weight of today’s decision. Accordingly, I respectfully dissent.

You can access the majority opinion here and the dissenting opinion here. As of this moment, the law blog “Rule 11” contains no mention of this decision.

Posted at 17:06 by Howard Bashman

“Flight Attendants Lose Settlement Gains”: The Associated Press has this article about a ruling that the U.S. Court of Appeals for the Third Circuit issued yesterday.

Posted at 16:29 by Howard Bashman

At least it’s only Canadian money: The Globe and Mail of Toronto reported here last Friday that “The federal government lost $1.26-billion in uncollected taxes in an instant Thursday, when the Supreme Court of Canada ruled in favour of a Vancouver stock promoter who defaulted on his back taxes.” The Ottawa Citizen provided a similar report, here.

Posted at 16:08 by Howard Bashman

“The Supreme Court avoids being a superlegislature”: Terry Eastland weighs in on several of last week’s U.S. Supreme Court rulings.

Posted at 16:04 by Howard Bashman

“Try, Try Again: The Senate passes a partial-birth abortion ban. The president says he’ll sign it. Will it hold up before the Court?”: The Weekly Standard today offers this op-ed by Rachel DiCarlo. And UPI features commentary by legal affairs correspondent Michael Kirkland entitled “Partial-birth hypocrisy.”

Posted at 16:00 by Howard Bashman

“What sentence is too harsh for a 14-time loser?”: James J. Kilpatrick has this op-ed in today’s edition of The Repository of Canton, Ohio.

Posted at 15:53 by Howard Bashman

From the transcript of today’s White House press briefing:

Q I have one more. On Miguel Estrada, two failed crucial votes, and another scheduled for next Tuesday. How long is the President going to continue this stalemate, when it is now obvious Democrats won’t budge on the nomination?

MR. FLEISCHER: I think the issue is how long will the liberal Democrats choose to pursue obstruction. The President has already answered his part of that question, and he says he will continue to fight of Miguel Estrada until the day he is sworn-in.

You can access the complete transcript at this link.

Posted at 15:43 by Howard Bashman

It’s happened before: Law Professor Eric L. Muller explains here on his “Is That Legal?” blog that a congressional committee’s subpoena requiring a federal judge to explain his or her judicial actions isn’t exactly unprecedented.

Posted at 14:49 by Howard Bashman

How many ways can one photograph a blue vodka bottle? Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion that begins, “This long-running litigation is fundamentally about how many ways one can create an advertising photograph, called a ‘product shot,’ of a blue vodka bottle. We conclude there are not very many.” You can access the opinion here and a photograph of the product in question here.

Posted at 14:19 by Howard Bashman

This afternoon’s Miguel A. Estrada confirmation battle round-up: Today’s edition of The Chicago Tribune reports here that “Neither side blinking in Senate judicial fight.” The Miami Herald reports here that “Florida’s Sen. Graham helps block vote on Hispanic judicial nominee.” The Post-Tribune reports here that “Hispanic group faults Bayh on nomination.” And Reuters reports here that “Sen. Lott Urges Peace on Judicial Nominations.”

In commentary, UPI runs an essay by John C. Armor entitled “Stop judicial filibusters.” Juan Andrade has an op-ed entitled “Bush doesn’t get it: Not just any Latino judge will do” in today’s edition of The Chicago Sun-Times. And George Knapp has an essay entitled “GOP faces losing battle over Estrada nomination” in The Las Vegas Mercury.

Posted at 13:01 by Howard Bashman

“Plaza appeal goes to top court ; LDS Church wants a ‘public forum’ injunction reversed”: Yesterday’s edition of The Deseret News contained this report.

Posted at 12:45 by Howard Bashman

“Don’t Mess with Texas; Non-issue holding Justice Owen”: National Review Online today features this essay by Christopher Flannery.

Posted at 12:42 by Howard Bashman

“Democrat attack milder at second Owen hearing”: Today’s edition of The Austin American-Statesman contains this report, which notes at its conclusion that “A third Estrada [cloture] vote is scheduled for Tuesday as the GOP tries to pressure Democrats into abandoning the filibuster tactic.”

Posted at 11:44 by Howard Bashman

“The real Priscilla Owen”: U.S. Senator John Cornyn (R-TX) had this op-ed in yesterday’s edition of The Austin American-Statesman.

Posted at 11:23 by Howard Bashman

“An OK for Estrada won’t help nation”: Today’s edition of The San Antonio Express-News contains this op-ed by Congressmen Ciro D. Rodriguez (D-TX) and Charles Gonzalez (D-TX).

Posted at 10:48 by Howard Bashman

“Clerking for the Supreme Court”: The March 2003 edition of Washington Lawyer contains this lengthy and interesting article. (Via SCOTUSblog.)

Update: A reader emails to note that the article contains an inexplicable error, stating that former D.C. Circuit Chief Judge Harry T. Edwards — who continues to serve as an active D.C. Circuit judge — instead works on the U.S. Court of Appeals for the Third Circuit.

Posted at 10:14 by Howard Bashman

For your viewing pleasure: The Senate Judiciary Committee has archived the video feed of yesterday’s hearing entitled “Setting the Record Straight: The Nomination of Justice Priscilla Owen.” So if you find yourself with an extra nine hours or so, be sure to take a look.

Posted at 10:04 by Howard Bashman

“Equal time for protest signs: In a controversial decision, a federal court says that if California allows Old Glory to hang from overpasses, it must allow political banners, too.” Salon.com today features this essay (which means click soon, before that site runs out of money).

Posted at 09:33 by Howard Bashman

“Gays and Genes”: The March 27, 2003 edition of The New York Review of Books contains this book review, which happens to mention the U.S. Supreme Court.

Posted at 09:27 by Howard Bashman

Forget Texas; Delaware is the death penalty capital of the USA: At least on a per-capita basis, blogger “Edward Boyd” asserts here.

Posted at 09:23 by Howard Bashman

“Bybee OK’d for federal judge post; Senate confirms ex-UNLV professor for 9th Circuit Court”: Today’s edition of The Las Vegas Review-Journal contains this report. Additional background on the Bybee nomination is available from The Las Vegas Sun, which has previously published pieces entitled “Bybee vote becomes example of bipartisan cooperation“; “Bybee at heart of three-nominee circus“; “Senate panel OKs ex-UNLV law professor for judge post“; and “Former LV law professor questioned on legal views; Senate panel grills appeals court nominee Bybee about 1989 probe.”

Posted at 09:15 by Howard Bashman

In Friday’s newspapers: Today’s edition of The Washington Post contains a lengthy profile of D.C. Circuit nominee Miguel A. Estrada that runs under the headline “A Man on Hold; While the Senate Debates, Judicial Nominee Miguel Estrada Waits. And Waits.” You can access here an article entitled “Senate Moves to Restrict Abortions; Ban on Late-Term Procedure Passed.” This article reports that “House Votes To Cap Damages For Medical Malpractice; In Suits, Punitive Awards Could Not Exceed $250,000.” In local news, “D.C. Killers Get Life After Stalemate on Death Penalty.” An article reports that “New Va. Tech Rules Rile Warner, Campus; Surprise Move By Board Halts Affirmative Action.” You can access here a report entitled “Medical Marijuana Advances in Md. House.” Tax day is just one month and one day away, I’m reminded by an article entitled “U.S. Seeks to Shut Down Income Tax Foe; Pressing Recent Attack, Government Accuses Schiff of Encouraging Evasion” And an editorial bears the headline “Watching Guantanamo.”

The New York Times reports here that “Judicial Nominee Gets Second Chance.” You can access here an article entitled “Lopsided Vote in Senate to Ban Type of Abortion.” This article reports that “House Acts to Limit Malpractice Awards.” In local news, you can access here an article entitled “New Jersey Adopts Ban on Racial Profiling” and here an article entitled “Prostitute Recounts Ex-Mayor’s Trysts With 2 Girls.” And here’s an article entitled “Judge to Intervene in Tax Case.”

The Washington Times reports here that “Senate Democrats block Estrada again.” An article reports that “Senate OKs ban on late abortions.” You can access here an article entitled “Teen access to porn on Web angers Hill.” And this article reports that “Warner assails Va. Tech move.”

The Los Angeles Times reports here that “Conservative Confirmed as 9th Circuit Judge; The Justice Department official will fill one of three vacancies on the appeals court, which some have criticized as too liberal.” In somewhat related news, “Caltrans Can’t Choose Banners, Court Rules; The agency violated free speech rights by allowing flags but not antiwar signs on highway overpasses, the 9th Circuit finds.” This article reports that “Senate OKs Bill to Curb Abortions; Republican-backed measure would outlaw a midterm procedure. House expected to pass ban. Bush hails vote, but critics vow a fight.” You can access here an article entitled “House Would Expand Malpractice Shield; Under bill, hospitals, HMOs and others would also be protected from unlimited awards.” And an article reports that “Stern Sues ABC Over TV Show.”

Bob Egelko of The San Francisco Chronicle reports here that “U.S. flag denied special status on freeways.”

Today’s edition of The Christian Science Monitor contains an article entitled “In Texas, new option for murder sentencing? 11th-hour stay of execution raises core questions, as state ponders life without parole.”

And finally, The Boston Globe reports here that “Senate OK’s ban on a late-term form of abortion.”

Posted at 08:11 by Howard Bashman

Interesting law blog of the day: “actualmalice.com.”

Posted at 08:05 by Howard Bashman

“No Indefinite Detention; Illegal Aliens Cannot Be Held, Even if Home Countries Won’t Take Them”: I’m quoted in this article, which appears in the online version of the ABA Journal today, concerning a very important recent en banc decision of the U.S. Court of Appeals for the Sixth Circuit.

Posted at 06:16 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “Court Affirms Rejected Anti-War Lawsuit”; here, “Court Nullifies Calif. Freeway Policy”; here, “Political Parties Court Hispanic Vote”; and here, “Calif. Tree Sitters Refuse to Budge.”

Posted at 06:11 by Howard Bashman

Spell check doesn’t always catch every error: A pointer from Denise Howell leads to what may be one of the most amazing typos of all time found in a law firm’s retainer letter.

Posted at 23:37 by Howard Bashman

What I meant to say was “procedurally out of luck”: An email arrives forwarded fifth-hand suggesting that a Web filter in use at the U.S. District Court for the Central District of California blocks access to “How Appealing” because this blog is classified as objectionable. Now there certainly are days when I am of the view that it wouldn’t be such a bad thing if over-aggressive Web filters entirely blocked access to my blog, so that I could shut down the blog, spend my free time doing something much less constructive, and no one would notice or complain. But don’t despair, because I’ve promised myself to keep “How Appealing” in existence at least until I reach the age of forty on October 28, 2004. After that, all bets are off. As for why Web filtering software may find my blog currently objectionable — perhaps I shouldn’t have written here recently that the respondent in Lockyer v. Andrade, No. 01-1127 (U.S. Mar. 5, 2003), was “procedurally screwed”?

Posted at 23:12 by Howard Bashman

Tomorrow Justice Sandra Day O’Connor will speak at the Moritz College of Law of The Ohio State University: Limited details are available here. Will the author of the blog “zipsix.com” be in attendance to provide a report? Time will tell.

Posted at 23:03 by Howard Bashman

Judicial confirmation news and commentary from here and there: The Atlanta Journal-Constitution reports here that “Senate again fails to force vote on Estrada” and here that “Metro Latinos split over Estrada judicial nomination.”

In commentary, today’s edition of The Ft. Worth Star-Telegram contains an op-ed entitled “Courts do matter.” The Arkansas Democrat-Gazette contains an op-ed entitled “The race card and how to play it.” And The Sun of Western Puget Sound, Washington contains an op-ed entitled “Miguel Estrada: Hostage of the Democrats.”

Posted at 22:35 by Howard Bashman

Available online at law.com: You can access here an article entitled “New Light on Old Defense of ‘Secrets’; Writ attacks a 1953 high court ruling.” In news from the Eleventh Circuit, Jonathan Ringel reports that “Winning Immigration Lottery Pays Nothing; Kenyan loses bid to revive visa application killed by the INS’ inaction.” And an article is entitled “California Justices Wary of the Hunt for ‘Lost’ Punitive Damages.”

Posted at 22:20 by Howard Bashman

In news from Washington State: Yesterday’s edition of The Seattle Post-Intelligencer contained an article entitled “Justice Bridge wants to earn public’s trust; She may recuse herself from cases of drunken driving” and an op-ed entitled “Fascination with pie-eyed politicians is staggering.” Yesterday’s edition of The Seattle Times, meanwhile, contained an article entitled “Bridge faces questioners.” Finally, courtesy of FindLaw, is the DUI report itself, or at least a heavily redacted version thereof.

Posted at 22:14 by Howard Bashman

Today’s FindLaw commentators: Law Professor Marci Hamilton has an essay entitled “The Supreme Court’s ‘Three Strikes’ Opinion: Another Strike for Federalism,” while Shavar D. Jeffries has an essay entitled “An Unusual Dissent By Justice Clarence Thomas In a Case Alleging the Use of Race-Based Challenges During Jury Selection Shows His Willful Blindness On Race Issues.”

Posted at 22:11 by Howard Bashman

“New committee hearing, same questions for Owen; Judicial pick still trying to get past critics’ conservative label”: Tomorrow’s edition of The Dallas Morning News will contain this report.

Posted at 22:09 by Howard Bashman

“Senate Confirms Jay S. Bybee to Serve on Court of Appeals”: The Ninth Circuit this evening has issued this press release.

Posted at 20:31 by Howard Bashman

U.S. Senate confirms Jay S. Bybee to seat on U.S. Court of Appeals for the Ninth Circuit: Congratulations to Jay S. Bybee, whom the U.S. Senate confirmed this afternoon by a vote of 74-19 to a seat on the U.S. Court of Appeals for the Ninth Circuit. Soon-to-be Judge Bybee is the second nominee of President George W. Bush to reach the Ninth Circuit, and his chambers will be located in Nevada. Following today’s confirmation, the Ninth Circuit has three vacancies (including one seat for which President Bush has not yet nominated anyone) and one future vacancy that is scheduled to occur on November 14, 2003.

Posted at 19:33 by Howard Bashman

“The Show Trial Must Go On: John Ashcroft choreographs the show trial of the century.” Dahlia Lithwick’s latest — about the trial of Zacarias Moussaoui — is now available online at Slate.

Posted at 19:22 by Howard Bashman

“Partisan Struggle in Senate Over Bush Judicial Nominees”: The New York Times has just posted online this article by Neil A. Lewis.

Posted at 16:35 by Howard Bashman

“Bloggers on parade”: This article appears in today’s edition of The Baltimore Sun. (Via “Obscure Store,” where the article is summarized as “Blogger who gets 100 visitors daily says it’s ‘the ultimate ego trip.'” Too funny.)

Posted at 16:30 by Howard Bashman

“President Calls on Senate to End Judicial Nomination Delays”: President George W. Bush has issued a statement following this afternoon’s second failed attempt at cloture on the Miguel A. Estrada nomination in the U.S. Senate.

Posted at 16:18 by Howard Bashman

“Justice Depart. Eyes Moussaoui Compromise”: The Associated Press provides this report, which previews an appellate brief that the U.S. Department of Justice is due to file tomorrow in the U.S. Court of Appeals for the Fourth Circuit.

Posted at 16:15 by Howard Bashman

“Is It Ever All Right To Torture Suspected Terrorists?” Columnist Stuart Taylor Jr. addresses this question in his column in this week’s edition of National Journal.

Posted at 16:04 by Howard Bashman

Some judiciary-related commentary from Philadelphia: Yesterday’s edition of The Philadelphia Inquirer contained an op-ed entitled “Disabling rights for us all” that opposes Jeffrey S. Sutton‘s confirmation to the U.S. Court of Appeals for the Sixth Circuit. And yesterday’s edition of The Philadelphia Daily News contained a column entitled “Voters will get another shot at Judge Lynn,” which leads off “There’s arrogance. And then there’s James Murray Lynn.”

Posted at 15:45 by Howard Bashman

“Senator Hatch’s Double Standards and Abuse of Power”: The group People For the American Way has today issued this press release. Thanks to Law Professor Rick Hasen for the pointer via his “Election Law” blog.

Posted at 15:44 by Howard Bashman

“Journey Into The Unknown”: What’s a federal court to do when forced to predict a difficult, unsettled issue of state law? My monthly appellate column for March 2003, originally published on Monday of this week in The Legal Intelligencer, is now available online here.

Posted at 15:11 by Howard Bashman

“Graham Votes to Uphold Estrada Filibuster”: The Associated Press provides this report.

Posted at 15:07 by Howard Bashman

Second cloture motion on Estrada nomination fails by vote of 55 for, 42 against: Sixty votes were needed to invoke cloture. Today’s fifty-five votes for cloture is identical to the number of Senators who voted for cloture one week ago today. Update: Today’s official roll call tally is now available online here.

Posted at 14:43 by Howard Bashman

By vote of 8-4, Fourth Circuit denies rehearing en banc in newspaper confiscation First Amendment case: You can access yesterday’s Fourth Circuit order denying rehearing en banc at this link. Back on January 16, 2003, the day the three-judge panel’s opinion issued, I wrote a post about the ruling entitled “Fourth Circuit reinstates fascinating free press federal civil rights claim.”

Posted at 13:51 by Howard Bashman

Today’s Ninth Circuit ruling of note: Today a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed a federal trial court’s preliminary injunction that prohibits the California Department of Transportation from following its policy of exempting American flags from permit requirements pertaining to highway overpasses but requiring permits for, or prohibiting altogether, the display of all other expressive signs and banners on such overpasses. The majority opinion, written by Circuit Judge Kim McLane Wardlaw, concludes:

In the wake of terror, the message expressed by the flags flying on California’s highways has never held more meaning. America, shielded by her very freedom, can stand strong against regimes that dictate their citizenry’s expression only by embracing her own sustaining liberty.

You can access the complete ruling at this link.

Posted at 13:32 by Howard Bashman

Second Estrada cloture vote rescheduled to occur at 2:15 p.m. today: A reader who works at the U.S. Senate emails to advise that the Senate has moved to 2:15 p.m. today the cloture vote on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit.

Posted at 13:24 by Howard Bashman

“Owen Vows to Senate She’ll Judge Fairly”: The Associated Press offers this report.

Posted at 12:51 by Howard Bashman

Miguel A. Estrada cloture vote postponed? Instead of proceeding to a vote on cloture, which had been scheduled for 12:30 p.m. today, it appears that the U.S. Senate is moving directly to debate the nomination of Jay S. Bybee to serve on the U.S. Court of Appeals for the Ninth Circuit. The Senate is likely to confirm Bybee’s nomination today.

Posted at 12:32 by Howard Bashman

In Thursday’s newspapers: Today’s edition of The New York Times contains an editorial entitled “Hold Firm on Estrada.” An article is entitled “Frist Forsakes Deal Making to Focus on Party Principles.” You can access here an article entitled “Texas Death Row Inmate Gets a Last-Minute Stay.” This article reports that “Senate G.O.P. Holds Firm as Vote on Abortion Nears.” In news from Connecticut, “U.S. Sex-Abuse Trial of Former Waterbury Mayor Opens.” And an article reports that “Restaurateurs Sue to Block Nassau County’s Ban on Smoking.”

The Los Angeles Times reports here that “Latinos’ Response to Estrada Is Mixed; Some see his judicial nomination as tokenism, others as a plus. But there’s no groundswell to see him on U.S. appellate court.” You can access here an article entitled “Supreme Court’s Reprieve Halts Texas Execution at Last Minute; The justices, who rarely agree to hear such cases, issued stay without explanation.” David G. Savage reports here that “Logic of Debate on Abortion Is Questioned; Mothers’ safety is key, say doctors opposed to Senate bill outlawing midterm procedure.”

In The Washington Post, Charles Lane reports here that “Tex. Execution Stayed at Last Minute; Supreme Court Considers Review.” An article reports that “Senate Supports Roe Ruling but Advances Bill Limiting Abortion.” And in news involving Zacarias Moussaoui, this article reports that “Judge Limits Sites To View Terror Trial; Prosecution’s Expansion Effort Rejected.”

The Boston Globe reports here that “Lawyer accuses firm of pregnancy bias; Says Goodwin Procter denied her partnership.” And this article reports that “Activist waives jury murder trial; Man admitted killing N.Y. abortion doctor in 1998, can’t testify.”

Finally for now, The Christian Science Monitor contains an op-ed entitled “The true affirmative action.”

Posted at 12:09 by Howard Bashman

BREAKING NEWS — First Circuit affirms dismissal of suit challenging President’s authority to initiate war against Iraq: You can access today’s ruling of the U.S. Court of Appeals for the First Circuit at this link. The unanimous opinion begins:

Plaintiffs are active-duty members of the military, parents of military personnel, and members of the U.S. House of Representatives. They filed a complaint in district court seeking a preliminary injunction to prevent the defendants, President George W. Bush and Secretary of Defense Donald Rumsfeld, from initiating a war against Iraq. They assert that such an action would violate the Constitution. The district court dismissed the suit, and plaintiffs appeal. We affirm the dismissal.

And the opinion concludes:

As the circumstances presented here do not warrant judicial intervention, the appropriate recourse for those who oppose war with Iraq lies with the political branches.

Circuit Judge Sandra L. Lynch wrote the opinion of the court.

Posted at 11:55 by Howard Bashman

“More Racial McCarthyism; Why Estrada is being held back”: Peter N. Kirsanow, who serves as a member of the U.S. Commission on Civil Rights, has this essay today at National Review Online.

Posted at 11:53 by Howard Bashman

299 and counting, part two: You can access here the U.S. Supreme Court‘s stay order issued yesterday evening stopping what would have been Texas’ 300th execution since the State resumed capital punishment in 1982. As several readers have emailed to note in response to my related post from last night, “The Supreme Court’s stay of Mr. Banks’s execution would probably set some kind of record if it meant to give other states a fighting chance to catch up. As you can see by visiting this Death Penalty Information Center link, Virginia comes in second to Texas’ 299 with 87 executions since 1976.”

Posted at 11:48 by Howard Bashman

“House may subpoena Minnesota’s chief federal judge”: Today’s edition of The Minneapolis Star Tribune reports here that “In a highly unusual development, the House Judiciary Committee is considering issuing a subpoena to force Minnesota’s chief federal judge to turn over his records as part of a broader investigation into drug sentences.”

Posted at 11:39 by Howard Bashman

On the agenda: Blogger Pro has been offline all morning, but now it’s back. Already this morning, the U.S. Senate voted 64-33 to approve a ban on so-called “partial-birth abortion.” The Associated Press has this report. And you can access the official vote tally here.

At 10:30 a.m. this morning, the Senate Judiciary Committee began a hearing entitled “Setting the Record Straight: The Nomination of Justice Priscilla Owen.” So far, the hearing has consisted of the statements of Senators, and the questioning of Justice Priscilla R. Owen has yet to begin. [Update: At approximately 11:30 a.m., the question of Justice Owen began.] You can watch a live Webcast of the hearing at this link. The AP reports here that “Owen Tries Again With Judiciary Committee.”

At 11:30 a.m., the full U.S. Senate will resume debate over the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. At 12:30 p.m. today, the Senate will hold its second cloture vote on that nomination. We should then learn how Senator Bob Graham (D-FL), who missed the first cloture vote because he was recuperating from heart surgery, will vote on the question of cloture.

Posted at 11:21 by Howard Bashman

“Not Fair Game”: This editorial — which The Washington Post published on May 28, 2002 — remains as timely as ever.

Posted at 23:01 by Howard Bashman

Available online at law.com: You can access here an article entitled “Agreement Reached on Federal Judge Nominee for Miami Bench.” An article reports that “Pa. High Court Weighs Protection for Anonymous Online Critics.” And an essay by Amitai Etzioni is entitled “Scrap Porn-Blocking Law, Start Over.”

Posted at 22:55 by Howard Bashman

Maybe they truly are “freedom fries”? A law clerk to a judge on the U.S. Court of Appeals for the Seventh Circuit just emailed to draw my attention to this article from Reuters, which points out that when the U.S. Supreme Court earlier this evening granted a last-minute stay of execution to Delma Banks, “He had already eaten his last meal of two double cheeseburgers, a double order of french fries and orange juice, which he told prison officials was good.”

Posted at 22:41 by Howard Bashman

“Losing the money when you didn’t have to”: Law blogger Fritz Schranck discusses further here the recent decision of the Supreme Court of Georgia holding unconstitutional the City of Atlanta’s occupation tax for lawyers. I for one consider the ruling to be consistent with that court’s most excellent motto.

Posted at 22:38 by Howard Bashman

Today’s FindLaw commentators: Sherry F. Colb has an essay subtitled “Florida’s Ban on Gay Adoption Reaches the U.S. Court of Appeals for the Eleventh Circuit.” And Phillip Carter, a law student whose blog you can access here, has an essay entitled “Al Qaeda and the Advent of Multinational Terrorism: Why ‘Material Support’ Prosecutions Are Key In the War on Terrorism.”

Posted at 22:30 by Howard Bashman

“Senate Debates Abortion Bill, Graham Back”: The AP has this report. The article further notes that “Graham missed a closely watched vote last week on whether to block Miguel Estrada’s judicial nomination to the U.S. Court of Appeals for the District of Columbia Circuit. Another vote on whether to end a filibuster against Estrada was set for Thursday, and * * * Graham will make the vote but was still undecided on whether to back Estrada.” The Graham in question is U.S. Senator Bob Graham (D-FL), who recently had heart surgery.

Posted at 19:39 by Howard Bashman

299 and counting: The U.S. Supreme Court has issued a stay of execution, The Associated Press reports here in an article entitled “Supreme Court Stops 300th Texas Execution.” Perhaps the goal is to allow some other States to catch up, although I’m not sure how far behind 300 other death-penalty-friendly States happen to be.

Posted at 19:34 by Howard Bashman

On the issue of federal appellate judicial confirmations, a look forward and a look back: Tomorrow at 9:30 a.m., the Senate Judiciary Committee is scheduled to hold a hearing entitled “Setting the Record Straight: The Nomination of Justice Priscilla Owen.” (You can access biographical information about Justice Owen here and here.) The hearing’s location has been moved to Dirksen 106, which if I understand correctly is a larger room than where the hearing was originally scheduled to occur. On September 5, 2002, the Judiciary Committee voted 10-9, along party lines, to refuse to recommend her nomination to the full U.S. Senate. This year, a party line vote would result in a 10-9 tally in favor of the nomination. But the Democrats in the Senate may very well choose to filibuster Justice Owen’s nomination, too.

Speaking of filibuster, you can access online via the Congressional Record Web site a transcript of yesterday’s debate in the Senate concerning Miguel A. Estrada‘s nomination to serve on the D.C.Circuit simply by following these instructions. Click here to bring up a page listing yesterday’s available Senate transcripts. Select item number 7, entitled “Executive Session,” from that list. Then, after have clicked on the “Executive Session” link at item 7, on the resulting page click on the link that reads “Printer Friendly Display.” Item 11 also is entitled “Executive Session” and contains an additional portion of the debate, so repeat the instructions substituting item 11 for item 7.

Today’s edition of The Hill contains an article entitled “GOP moves ahead with controversial nominees.” Today’s edition of The Salt Lake Tribune contains an editorial entitled “Judicial Vivisection.” U.S. Senator Elizabeth Dole (R-NC) has an op-ed entitled “Estrada deserves a vote; Democratic minority shouldn’t keep qualified lawyer off the bench” in today’s edition of The Charlotte Observer. Today National Review Online publishes an item entitled “Estrada & the Dream: A former Honduran presidential candidate and U.S. citizen questions the obstruction.” The Estrada nomination has also been the subject of discussion at White House press briefings yesterday and today. From yesterday’s transcript:

Q And I had a second question. This has to do with Miguel Estrada. I just saw that the President wrote a letter today to the head — to Senator Frist and the Democratic Minority Leader, Senator Daschle, asking for — again mentioning the Estrada case and asking for a new approach to judicial nominations. Is there anything that the White House can do to get this nomination moving again, or will it just be impasse, nobody is going to move?

MR. FLEISCHER: Well, of course, today, in a sign of how seriously the administration takes the importance of making progress on judicial nominations and ending the obstruction of Miguel Estrada’s nomination. The Vice President went up to a session of the Senate and, in an unusual move, chaired the Senate. A letter was released from the President on this topic.

The President very much thinks it’s in American interest to move beyond the cycle of both parties on recrimination and blame on judicial nominees.

Of course, this is precedent-setting, and there’s never before been a successful circuit court filibuster. This would represent a real change in how the Senate perceives its constitutional responsibilities on advice and consent. This is an important and serious issue; the President hopes that the court — that the Senate will confirm him to the court.

And from today’s transcript:

Q Ari, another cloture is scheduled in the Senate tomorrow and it is not expected to pass. Meanwhile the Democrat filibuster on Miguel Estrada continues with no end in sight. What else can the President do to get an up or down vote on this nominee?

MR. FLEISCHER: Well, I think as an example of how this filibuster is not grounded in any principled approach other than a liberal political opposition to anybody that the President would name, like Miguel Estrada. Examine the facts. The Majority Leader filed cloture after an extraordinary offer was made of a second hearing for Miguel Estrada before the Judiciary Committee. The Democrat leadership refused this unprecedented offer of goodwill. So the Republican leadership will continue to show that the Democrats in this case are obstructing a nominee.

The President is committed to Miguel Estrada. He will continue to fight for Miguel Estrada. Several prominent judges have overcome failed cloture votes and gone on to distinguished careers as jurists. William Rehnquist is one, and 4th Circuit Appeals judge Harvey Wilkinson is another.

Today’s edition of National Review Online also includes an essay entitled “The Power of the Sisterhood; The case of Priscilla Owen.”

Finally for now, The Lodi News-Sentinel today contains an article entitled “Former San Joaquin County judge nominated to 9th Circuit Court of Appeals” about Ninth Circuit nominee Consuelo Callahan.

Posted at 16:41 by Howard Bashman

Elsewhere in Wednesday’s newspapers: Michael Newdow has an op-ed entitled “Freedom From Religion — That Too Is a Right; Why I sued over the intrusion of ‘under God’ into the Pledge of Allegiance” in today’s edition of The Los Angeles Times. You can access here an article entitled “U.S. Appellate Court Rules Against Guantanamo Detainees; They have no right to seek due process or meet with an attorney because they aren’t citizens and aren’t on U.S. soil, panel says.” And this article reports that “5 on Immigration Board Asked to Leave; Critics Call It a ‘Purge’; Justice Dept. denies that the move is a bid to oust pro-immigrant officials from the appeals panel.”

The Washington Times reports here that “Democrats reject new Estrada query.” Frank J. Murray reports that “Appeals court rules against prisoners at Guantanamo.” An article reports that “Democrats distract debate on abortion,” while a related editorial is entitled “3 inches from infanticide.” And in news from Texas, “Banks’ execution expected to proceed.” The article explains that “Tonight he would become the 300th inmate to die since the state reinstituted the death penalty in 1982.”

In The Boston Globe, Lyle Denniston reports here that “Court gives no rights to detained; Military’s prisoners can’t appeal status.” And USA Today contains an op-ed entitled “Fast food ‘addiction’ feeds only lawyers.”

Posted at 15:40 by Howard Bashman

“Challenges to Abortion Bill Defeated”: The Associated Press reports here that “The Senate brushed aside twin challenges Wednesday to a proposed ban on a controversial abortion procedure, signaling support for legislation that would impose the most significant limits since the Supreme Court legalized abortion three decades ago.”

Posted at 14:57 by Howard Bashman

Courtesy of the Tenth Circuit, you can learn the history of “The Urantia Book”: Yesterday a divided three-judge panel of the U.S. Court of Appeals for the Tenth Circuit issued a non-precedential opinion that explained:

This appeal arises out of the parties’ dispute as to the present validity of Urantia Foundation’s copyright in The Urantia Book, a document comprising the scriptural basis for the Urantia movement. The history of the composition of The Urantia Book, or such of that history as is available, bears directly upon the resolution of this case.

In approximately 1900, an unknown patient (“the Conduit”) sought psychiatric help from Dr. William Sadler.[fn1] The Conduit behaved strangely in his sleep, and during sessions with the Conduit, Dr. Sadler became convinced that the Conduit was channeling “celestial personalities.” At some point, the Conduit began presenting Dr. Sadler with handwritten “papers,” purportedly consisting of the fruits of his communion with these celestial beings. Sometime later in the course of his treatment, Dr. Sadler opened up his sessions with the Conduit to a group of relatives that referred to itself as “The Contact Commission.” During its sessions with the Conduit, the Contact Commission prepared stenographic notes of the Conduit’s celestial dialogs, but it destroyed most of them. The notes formed no part of The Urantia Book.

—————————————-

fn.1 No one knows who the Conduit was, but the parties agree that he composed the text of The Urantia Book. Throughout its briefs, Urantia Foundation refers to him as “the subject”; Michael Foundation refers to him as “Writer.” Given that the terms the parties have selected to refer to the composer of The Urantia Book carry overtones suggestive of the principles of copyright law underlying this case, and that his status as a conduit for celestial revelation is not in dispute, we refer to him by what we hope to be a copyright-neutral term.

In 1924, after approximately twenty years of treatment and generating “papers,” the Conduit announced that he would compose The Urantia Book. He solicited questions from the Contact Commission to present to the celestial beings during his psychiatric sessions. Dr. Sadler formed a subgroup of the Contact Commission (“the Forum”) to prepare these questions. Between 1935 and 1942, in response to these questions, the Conduit delivered a foreword and 196 handwritten “papers” that together constitute The Urantia Book. The Contact Commission reviewed the papers and typed them. It did not change their arrangement or edit them in any way other than to correct spelling and capitalization errors. It also destroyed all documents related to the questions presented to the Conduit. The Conduit was never compensated for his efforts in creating The Urantia Book.

The Urantia Foundation’s Web site is accessible here, and the complete text of “The Urantia Book” appears to be available online via this link.

Posted at 14:32 by Howard Bashman

Whether and in what circumstances may a habeas certificate of appealability, once issued, be vacated? Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, in a short but very interesting opinion written by Circuit Judge Richard A. Posner, surveyed the conflicting landscape across the circuits and provided an answer to this question.

Posted at 14:19 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “N.J. Court Allows Gun Makers Suit”; here, “Sniper Jury Pool Change Prompts Challenge”; and here, “Lesbians Win Birth Certificate Case.”

Posted at 14:16 by Howard Bashman

Police officer husband, exotic dancer wife, and adverse employment consequences don’t equal Section 1983 claim, Eighth Circuit rules: You can access today’s decision of the U.S. Court of Appeals for the Eighth Circuit at this link.

Posted at 14:07 by Howard Bashman

“With the advent of the internet, a public reprimand directly by the court is also a viable option.” So says the U.S. Court of Appeals for the Sixth Circuit in an opinion issued today that vacates an order of criminal contempt imposed on an assistant federal public defender who arrived slightly late for court on two occasions in the U.S. District Court for the Western District of Tennessee. The Sixth Circuit’s opinion explains:

As the district court rightly notes, Smothers’s “tardiness resulted in a waste of time for fourteen jurors, one opposing counsel, the defendant, one court reporter, one case manager, numerous witnesses, and one judge.” Courts cannot operate in a cost-effective manner if counsel does not appear on time. Logic dictates that courts use a form of progressive discipline in the face of such transgressions. First, a lecture from the court regarding the importance and significance of being on time for scheduled appearances is the mildest penalty. Obviously, this was done in Smothers’s case without success; it was not until her second episode of tardiness that the court entered a contempt order. If such a lecture is not successful in correcting the problem initially, as it was not here, a court can involve the offending attorney’s office management or partnership. An apology on the record and in front of the jury can also be required.

Courts also have the option of recommending to the appropriate bar association that the attorney be subject to disciplinary action such as a public reprimand. Such a recommendation would encourage state bar associations to assert their natural role and allow the attorney to be reprimanded by peers without the powerful stigma of an order of criminal contempt.

With the advent of the internet, a public reprimand directly by the court is also a viable option. All federal courts have embraced the internet, though some with more success than others. Disciplinary postings can be placed on a page associated with the court’s website. The appropriate public posting might list the attorney’s name, details of the misconduct, and the court’s disapproval.

Finally, the imposition of a fine unaccompanied by a formal sanction could be used. District judges routinely impose monetary penalties for tardiness without resorting to a finding of criminal contempt. The amount of the penalty may be based upon the length of the delay or the cost to the court from such delay. Where a non-criminal monetary penalty is imposed, the district judges may direct the attorney to pay a fine to a charity of the attorney’s choice or to the clerk’s office to be used for expenses associated with the jury (e.g. coffee, donuts and newspapers), which necessarily increase when proceedings are delayed.

You can access the complete opinion at this link.

P.S. Thanks to the many Kentucky-based readers of “How Appealing” who emailed to note that the original version of this post erroneously stated that the Sixth Circuit’s ruling arose from a Kentucky-based federal district court.

Posted at 11:24 by Howard Bashman

“Court Stay Issued in Airline Smoke Death”: The AP has just reported that “Greece-based Olympic Airways won a stay at the Supreme Court that will protect it, for now, from paying $1.4 million to heirs of an asthmatic man who died after being exposed to second hand smoke on an international flight.” According to the article, U.S. Supreme Court Justice Sandra Day O’Connor — the Circuit Justice assigned to the U.S. Court of Appeals for the Ninth Circuit — has issued the stay. I first reported on the Ninth Circuit’s ruling in this matter on the day it issued, in a post you can access here.

Posted at 11:01 by Howard Bashman

“U.S. judge pulls out of lawsuit on Hanford radiation”: The Associated Press, via The Seattle Times, offers this report.

Posted at 11:00 by Howard Bashman

“The other filibuster”: Conservative commentator Thomas Sowell has an essay today in which he responds to this past Sunday’s New York Times Magazine article about the U.S. Court of Appeals for the Fourth Circuit. Sowell’s essay concludes, “Interpreting the law as written is not an ideology. It is what all judges swear to do when they go on the bench. Are those who do so now to be considered ‘activists’ or even ‘extremists,’ so that only those who lied when they took the oath are acceptable?”

Posted at 10:45 by Howard Bashman

“Court quashes tax on Atlanta lawyers; City budget surplus may shrink”: Today’s edition of The Atlanta Journal-Constitution contains this report.

Posted at 10:44 by Howard Bashman

Second cloture vote on the Miguel A. Estrada nomination may occur tomorrow: According to “The Corner” and this post from Robert Alt at the “No Left Turns” blog.

Posted at 10:30 by Howard Bashman

In Wednesday’s newspapers: The New York Times reports here that “Senators Thumb Their Constitutions in Debate Over Judges.” An article reports that “Bush Administration Wins Court Victory on Guantanamo Detentions,” and a related editorial is entitled “Forsaken at Guantanamo.” In news from Manhattan, “Judge Affirms Terror Suspect Must Meet With Lawyers.” You can access here an article entitled “Senate Blocks an Amendment to Alter an Abortion Measure” and here an editorial entitled “Reproductive Rights in Peril.” This article is entitled “Ex-Judges and Prosecutors Fight Milestone Execution in Texas.” In news from Buffalo, “Man Who Killed Abortion Provider Asks for Trial by Judge.” An article in the Business section reports that “Class-Action Lawyer’s Fee Under Scrutiny.” And a letter to the editor runs under the heading, “Bush and the Bench.”

The Washington Post reports here that “Detainees Are Denied Access to U.S. Courts.” In news from Boston, “Appeals Court Weighs Bush’s War Powers; Act of Congress Needed for Iraq Invasion, Suit Says.” An article reports that “Bush Calls for Limit to Senate Debates; Proposal Prompted by Month-Long Filibuster Blocking Estrada Nomination.” A front page article is entitled “Reexamining Minority Admissions; Supreme Court Case Prompts Some Area Colleges to Make Subtle Changes in Policy,” while a related item is entitled “Legacy Students A Counterpoint to Affirmative Action.” Zacarias Moussaoui is in the news again, in an article headlined “Rules Set Who Can Watch Terror Trial; Attack Victims to Receive Applications.” And an editorial is captioned “Get the Message.”

[More to come!]

Posted at 06:45 by Howard Bashman

“Strip-search suit loses again in 11th Circuit”: Today’s edition of The Atlanta Journal-Constitution contains this report. You can access the recent ruling of the U.S. Court of Appeals for the Eleventh Circuit at this link.

Posted at 06:41 by Howard Bashman

In news from Washington State: The Associated Press reports here that “Justice Bridge considered quitting, but will stay on high court.”

Posted at 22:45 by Howard Bashman

Online at law.com: You can access here an article entitled “Secrecy Within: Algerian native’s federal appeal in Miami has court altering records, closing hearing in name of security.” And this article reports that “Judge Sticks by Ruling on Attorney Access for ‘Dirty Bomber.'”

Posted at 22:30 by Howard Bashman

Eighteen months: A year and a half ago today was September 11, 2001. Still seems like just yesterday in many respects, doesn’t it? And although surely no one needs a reminder, the Newseum has compiled a large number of newspaper front page images from eighteen months ago tomorrow.

Posted at 20:44 by Howard Bashman

Judicial confirmation news and commentary from here and there: Today’s edition of The Atlanta Journal-Constitution contains an op-ed entitled “Pickering rises above mudslinging.”

The Weekly Standard‘s edition of March 17, 2003 contains an essay entitled “Filibuster Si, Estrada No! The great Republican divide over how to fight for Bush’s judicial nominee.” Today’s edition of The New York Post contains letters to the editor under the heading “A filibuster for the wrong reason.” The Billings Gazette finally gets around today to reporting that “Baucus votes against Estrada.” From South Dakota comes word that “Protesters await Daschle in Spearfish.”

The Santa Fe New Mexican contains commentary entitled “Bush Nominee is Blocked.” The Troy Record contains an editorial entitled “Senate judgment wise in Estrada nomination.” The Badger Herald contains an op-ed entitled “Estrada filibuster excessive.” The Tribune-Review of Pittsburgh contains an editorial entitled “The Estrada blockade: DISGRACEFUL!” That publication doesn’t usually bring out the all caps just for ANY OLD TOPIC!

The Corpus Christi Caller-Times contains an editorial entitled “Struggle over Estrada nomination unedifying.” The Roanoke Times contains an editorial entitled “Break the political logjam over federal judges.”

The Scripps Howard News Service recently offered an op-ed entitled “The law can never be independent of politics.” The Omaha World-Herald published an op-ed entitled “Nominee for court hit by unfair queries.” The Daily Ardmoreite published an op-ed entitled “President Bush’s ongoing battle for the courts.” An op-ed in The Orlando Sentinel was entitled “Judging Estrada: Democrats’ gamble could help Bush.” The Minneapolis Star Tribune published an essay by U.S. Senator Norm Coleman (R-MN) entitled “Democrats’ filibuster harms more than Estrada.”

The Tampa Tribune recently published an editorial entitled “Some Questions For Bob Graham.” The Houston Chronicle contained an op-ed entitled “Yakety, yak — keep talking, senators.” The Herald News contained an op-ed entitled “Gloves off for good in Senate.” The Augusta Chronicle contained an editorial entitled “Filibuster doomed to fail.” The Ft. Worth Star Telegram contained an op-ed entitled “Estrada, the senators and the neo-Marxists.” The Daily Nonpareil contained an op-ed entitled “Let Estrada serve on federal appeals court.” And Congressman Mark Foley (R-FL), who has declared himself a candidate for the U.S. Senate in Florida, recently had an op-ed entitled “Senate must end Estrada filibuster.”

Posted at 17:16 by Howard Bashman

Online at The American Prospect: This month’s issue contains a bunch of essays that are grouped under the heading “The Right and the Law.” You can access them all via this link. In “Web only” content, you can access here an essay entitled “Equal Opportunists: How the establishment learned to love affirmative action” and here an essay entitled “Bar None: Injury lawyers, defense attorneys, prosecutors — the Bush administration can’t conceal its contempt for all of them.”

Posted at 15:33 by Howard Bashman

Larry Lessig’s back: And he’s at Disney World, no less. After a nearly two-month absence, a new blog post has appeared on the day after the U.S. Supreme Court denied (see docket entries here) the petition for rehearing in the Eldred v. Ashcroft case.

Posted at 14:45 by Howard Bashman

Access online today’s federal district court decision upholding the accused dirty bomber’s right of access to a lawyer: The decision is now available online here. CNN.com has this report on the ruling, which is described as a “setback for the Bush administration.”

Posted at 14:04 by Howard Bashman

Elsewhere in Tuesday’s newspapers: The Washington Times reports here that “GOP to ‘load’ Senate with votes on judges.” Frank J. Murray reports that “Court OKs damages for fear of asbestos.” In op-eds, Bruce Fein writes of “Curbing career criminals,” while Paul Greenberg discusses the “Wall of confusion.”

In The Boston Globe, Lyle Denniston reports here that “Court allows asbestos anxiety claims; Railroad workers fear getting cancer” and here that “Top court to rule on Verizon lawsuits; Case to focus on level of access to networks firm must give rivals.” An editorial is entitled “Affirmative healing.” And a book review discusses “The Unabomber’s Harvard years.”

In today’s edition of The Los Angeles Times, David G. Savage reports that “High Court OKs Extra Damages for Cancer Fear; The 5-4 ruling in an asbestos case could have implications for a broad range of litigation.” This article reports that “Senate Targets Late-Term Abortion; Lawmakers debate a Republican-sponsored bill to outlaw a controversial procedure as conservatives seize their chance for change.” And in news from Newport Beach, “Judge Says Free Sunday Parking Has Higher Good; He rules congregants and others don’t have to feed meters because the exemption serves secular purpose of easing congestion.” According to the article, “John Nelson, a Lido Isle resident, filed suit in January alleging that the city is violating the church-state separation clause of the 1st Amendment by giving worshipers special rights: free Sunday-morning parking at metered spots near four churches.”

Posted at 13:46 by Howard Bashman

From one fan of Dr Pepper to another: The following email just arrived:

I am writing to offer some advice to the “Bashmaniacs.” I too am a frequent visitor on your blog, but I have noticed a direct correlation between the number of cases on our “60 day report” and our chambers’ frequent blogging forays.

Alas, a solution. I remembered a slogan for a soft drink that was produced in my humble state–now the #1 non-cola beverage in all of the land–reminding patrons to drink a Dr Pepper at 10, 2, and 4. (An early study on human fatigue showed that human energy dropped to its lowest levels during the day at 10:30 AM, 2:30 PM, and 4:30 PM daily. Therefore, drinking Dr Pepper at 10 AM, 2 PM, and 4 PM would boost energy at this less productive times of the day). The schedule works for blogging as well. For an enhanced experience, might I also suggest blogging while drinking a Dr Pepper.

I am happy to report that our chambers are turning and churning out opinions, we are well-informed on current developments in appellate law, and we are highly caffeinated. I mentioned our success to some clerks in the chambers downstairs, and they have also instituted the schedule. Fortunately, they had a fellow Texan to help administer the program–by the way did you hear about the Texan that graduated from Harvard Law School? He never knew which to mention first.

You should notice a spike in productivity here at the Eighth Circuit–you remember it right? The Circuit that is as exciting as the states that comprise it. The one with the really great website and the “scary” reindeer.

P.S. – I read the “blawging” story in the ABA journal. I noticed that you were featured first and I was thrilled to see that my favorite “blawging” site received such a prominent position in the story. Then I noticed that your last name begins with a “B.”

Not only is Dr Pepper a longtime favorite of mine, but I’m pleased to report that you can even begin to like Red Fusion if you consume enough of it.

Posted at 13:23 by Howard Bashman

“Bush Calls for Mandatory Vote on Nominees”: The Associated Press has this report concerning a letter that President Bush sent today to the U.S. Senate‘s leaders on the subject of judicial nominees.

Posted at 12:39 by Howard Bashman

“Court Denies Taliban, al-Qaida Hearings”: The Associated Press provides this report on today’s D.C. Circuit ruling.

Posted at 12:38 by Howard Bashman

“Judge OKs Lawyer for ‘Dirty Bomb’ Suspect”: The Associated Press has this report.

Posted at 12:01 by Howard Bashman

BREAKING NEWS — D.C. Circuit affirms dismissal of habeas petitions filed by alien enemy combatants captured in Afghanistan and detained at Guantanamo Bay, Cuba: You can access today’s unanimous ruling of a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit at this link.

Posted at 11:11 by Howard Bashman

The U.S. Senate is again debating the Miguel A. Estrada nomination: You can watch the debate — which is scheduled to last for the next hour and a half — at this link via C-SPAN2. As anticipated, this morning Vice President Cheney is presiding over this debate.

Posted at 11:03 by Howard Bashman

In news from Georgia: The Atlanta Journal-Constitution reports here that “Drivers charged with minor traffic offenses can now demand a jury trial in light of a ruling issued Monday by the Georgia Supreme Court.”

Posted at 10:42 by Howard Bashman

“Judge Rules Against Pot-Smoking Women”: The Associated Press this morning offers this report.

Posted at 10:40 by Howard Bashman

“Estrada Battle Moves to Background”: The Associated Press provides this report.

Posted at 06:00 by Howard Bashman

In Tuesday’s newspapers: In The New York Times, Linda Greenhouse reports here that “Justices Refuse to Limit Employers’ Liability for Asbestos Exposure.” You can access here an article entitled “Senate Revisits Ban of Abortion Procedure.” And Adam Liptak reports that “Review of DNA Clears Man Convicted of Rape.”

In The Washington Post, Charles Lane reports here that “Court Allows Suits Over Fear of Cancer; Workers Had Asbestos-Related Illness.” An article reports that “Senate Poised to Ban ‘Partial Birth’ Abortions.” And an editorial is entitled “Race and Juries.”

Finally for now, The Christian Science Monitor reports here that “Court rules workers can collect damages for fear of illness.”

Posted at 00:15 by Howard Bashman

Available online at law.com: Tony Mauro reports here that “Supreme Court Gives Boost to Those Claiming Asbestos Injury.” Jonathan Groner has an article (free registration required) entitled “Air Wars: Spinning The Estrada Showdown Judicial nomination draws unprecedented TV treatment.” Jonathan Ringel reports that “Georgia High Court Bars Lawyer Occupation Tax.” And you can access here an article that begins, “A federal jury has awarded more than $24 million to a black Texas family that had a cross burned on their lawn by five white men three years ago.”

Posted at 23:56 by Howard Bashman

Questions for, and answers from, Miguel A. Estrada: U.S. Senator Blanche Lincoln (D-AR) recently posed three written questions to D.C. Circuit nominee Miguel A. Estrada, and today Estrada tendered his responses. I’m pleased to report that I am in possession of those questions and of Estrada’s answers.

The questions were: “1. Is diversity a factor that an employer or a school could take into consideration? 2. Other than cases in which you were an advocate, please tell us three cases from the last 40 years of Supreme Court jurisprudence you are most critical of, and just give me a couple of sentences as to why for each one. 3. Which judge has served as a model for the way you would conduct yourself as a judge and why?” You can access Estrada’s thoughtful and interesting answers to these questions here, at “How Appealing Extra.”

Posted at 23:33 by Howard Bashman

U.S. Supreme Court round-up for Monday, March 10, 2003: Sometimes all of the Term’s juiciest cases either have already been decided, aren’t quite ready to issue decisions in, or — most definitely this Term — haven’t even been argued yet. On such a day, the least the Supreme Court of the United States can do is clear out the underbrush a bit. Today was such a day, as we learned (1) that railroad workers whose employers exposed them to asbestos can recover for fear of cancer if they suffer from asbestosis and (2) that counties, unlike States, can be sued under the federal False Claims Act. My summaries of these cases won’t be entirely without redeeming value, so I invite you to stick around and see if I’ve been able to find anything of interest to talk about in today’s two rulings.

1. Apparently the film “Blazing Saddles” wasn’t too far off the mark in depicting the conditions to which railroad workers were subjected. Thus, in 1908, Congress enacted The Federal Employers’ Liability Act (FELA), which makes common carrier railroads liable in damages to employees who suffer work-related injuries caused “in whole or in part” by the railroad’s negligence. In a FELA case, the lone question determining the railroad’s liability often is “whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit.”

Today the Court in Norfolk & Western R. Co. v. Ayers, No. 01-963 (U.S. Mar. 10, 2003), confronted four questions. First, can railroad workers diagnosed with asbestosis recover for fear of cancer? As to this question, the Court ruled 5-4 in the affirmative, so long as the “alleged fear is genuine and serious.” Second, is the railroad jointly and severally liable for all such fear-related damages, even if other parties share responsibility for the plaintiff’s condition? As to this question, the Court again answered in the affirmative, although it seems the ruling on this point was unanimous. Third, does the acronym “FELA” require the preceding article “the” (as in “The FELA mandates this result,” instead of simply “FELA mandates this result”)? The Court, by the same 5-4 vote, indicated “yes,” and Justice Ruth Bader Ginsburg, who wrote the majority opinion, even went so far as to insert the article “the” into some quotes from older cases that had omitted it. And fourth, why is the Supreme Court of the United States serving as the very first appellate court anywhere to review a West Virginia state trial court’s decision in this FELA case? Given that this was the oldest undecided case on the Court’s docket until today, I’m sure that at least several of the Justices were wondering why themselves in the days leading up to this opinion’s issuance.

The Court’s 5-4 fear of cancer ruling produced an unusual line-up of Justices. Joining in Justice Ginsburg’s majority opinion on that point were Justices John Paul Stevens, Antonin Scalia, David H. Souter, and Clarence Thomas. The Court’s moderate wing found itself in dissent. Justice Anthony M. Kennedy wrote the lead dissent, in which Chief Justice William H. Rehnquist, and Justices Sandra Day O’Connor and Stephen G. Breyer joined. Yes, Justice Breyer is a moderate when it comes to asbestos cases, perhaps dating back to the days when he was on the hook for such liability through his Lloyd’s of London dealings. What probably made this such a close case is that the dissenters do argue a darn persuasive point of policy, while the majority applies the Court’s previously-announced rules in a way that seems most consistent with the rules’ plain import.

Justice Ginsburg may have found it irresistible to lapse into a bit of railroad-induced wordplay. At page 22 of her opinion (which is on page 27 of this PDF file), she writes:

Resisting this reading, Norfolk trains on the statutory language conveying that a railroad is liable only for injuries an employee sustains “while he is employed by such carrier.” Ibid. That language, Norfolk maintains, “makes clear that railroads are not liable for employee injuries that result from outside causes.” Brief for Petitioner 32. Norfolk’s argument uncouples the statutory language from its context, and thereby obscures its meaning.

Allowing people who have asbestosis to sue and recover for fear of cancer is a big deal, and I wouldn’t be surprised if Congress were to try to repair some of the negative consequences to the economic condition of our Nation’s railroads likely to flow from today’s decision.

2. In today’s other case, the Court resolved whether counties are subject to suit under the federal False Claims Act, which provides for treble damages and statutory fines. In 2000, the Court ruled that States were not subject to suit under the law, and following that decision several federal appellate courts ruled that counties were likewise exempt because they are so very similar to mini-States and are tiny little government entities in their own right. The U.S. Court of Appeals for the Seventh Circuit, however, wasn’t buying the counties-are-the-same-as-States argument, and it turned out today that the Seventh Circuit was properly skeptical.

Justice David H. Souter wrote the Court’s unanimous opinion in Cook County v. United States ex rel. Chandler, No. 01-1572 (U.S. Mar. 10, 2003). Justice Souter’s intimate personal knowledge of the 19th Century came in handy, because it just so happens that “corporations” as that phrase was understood in the 1800s usually meant local government bodies such as counties. So, the understanding that corporations are liable as defendants under the False Claims Act more than sufficed to sweep in counties as defendants. Also, today we learn that while the False Claims Act’s treble damages provision in 2000 was understood to be akin to punitive damages, and thus not appropriately imposed against States, in fact it’s barely punitive at all, because the Act allows neither prejudgment interest nor consequential damages. Ironically, Justice Souter was one of just two dissenters from the Court’s opinion in 2000 holding that States cannot be sued under the False Claims Act. In the spirit of forgive and forget, the Court today gave him the honor of casting doubt on whether the False Claims Act’s treble damages provision is or is not predominantly punitive in nature.

Having today destroyed in two fell swoops the financial viability of our Nation’s railroads and counties, the Court immediately embarked on a two-week recess. The March 2003 oral argument calendar begins on Monday, March 24, 2003, and that week and the next the Court will hear some very important cases. So, rest up everybody. We’re in for a very interesting end of the October 2002 Term.

Posted at 22:15 by Howard Bashman

“Talkative lawyers create a nourishing thicket, or, Law is Free”: Law blogger Rory Perry, who for his day job serves as Clerk of the Supreme Court of Appeals of West Virginia, has a post bearing this title at his blog.

Posted at 21:42 by Howard Bashman

“New Efforts Introduced in Senate, House to Break Up Ninth U.S. Circuit Court of Appeals”: Today’s edition of The Metropolitan News-Enterprise contains this report.

Posted at 21:10 by Howard Bashman

Tenth Circuit reinstates anti-fur protestor’s challenge to constitutionality of Utah’s hate crime statute: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit reinstated a anti-fur protestor’s challenge to the constitutionality of Utah’s hate crime statute. According to the opinion, “Essentially advancing the view that one person’s discordant protest is another’s music, he asserts that the hate-crimes statute chills speech protected by the First Amendment because it ‘inhibits legal peaceful conduct protected by the United States Constitution such as picketing, protesting, demonstrating and leafleting on a public street.'” The trial court had dismissed the case for lack of standing, and it was that dismissal the Tenth Circuit reversed today.

Posted at 21:00 by Howard Bashman

My advice — add even more contributors: Eugene Volokh wants more visitors to his blog.

Posted at 20:09 by Howard Bashman

Tomorrow’s not so secret location — the U.S. Senate: The blog “No Left Turns” reports here that Vice President Dick Cheney “will be presiding over the Senate from 11:00 am till 12:30 p.m. tomorrow in a special session on Miguel Estrada” and here that “a special message from the President will be delivered during this time.”

Posted at 19:54 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “Whistle-Blower’s Right to Sue Upheld”; here, “High Court Eyes States’ Right in Lawsuits”; here, “Court Considers Antitrust Lawsuit Limits”; here, “Ark. Gov. Legalizes ‘Choose Life’ Plate”; here, “Senate Eyes ‘Partial Birth’ Abortion Ban”; and here, “Lawyer Allegedly Gives Pot to Client.”

Posted at 19:52 by Howard Bashman

The pervasiveness of binding arbitration: The Recorder reports here that “Photo Shoot Calls for Bondage … and Binding Arbitration.”

Posted at 18:49 by Howard Bashman

Dahlia Lithwick explains “Why Can Shopping Malls Limit Free Speech?” Here, online at Slate.

Posted at 18:35 by Howard Bashman

Third Circuit en banc case goes by the wayside: Today the en banc U.S. Court of Appeals for the Third Circuit entered an order dismissing a case in which it had granted rehearing en banc on October 3, 2002 because the court concluded that it had erred at the outset in allowing appellate review under Fed. R. Civ. P. 23(f). I first mentioned this case back on October 4, 2002 in a post that stated, in relevant part:

[Y]esterday, the Third Circuit granted rehearing en banc to enable the full court to consider a recent three-judge panel’s decision addressing whether a proposed class action suit becomes moot if the defendant offers to give the named plaintiff all relief sought by the named plaintiff before the court considers whether to certify the class. Shannon P. Duffy also has an article about the granting of rehearing in this case.

I discussed the en banc case dismissed today further in my monthly appellate column published in October 2002.

Posted at 17:08 by Howard Bashman

More news about antitrust laws and their extraterritorial limits: Earlier this afternoon I mentioned here a 5-4 en banc ruling of the U.S. Court of Appeals for the Seventh Circuit that issued today involving the Foreign Trade Antitrust Improvements Act. Back on January 17, 2003, I wrote a post that stated:

D.C. Circuit today decides exceptionally important appeal about the territorial reach of this Nation’s antitrust laws: A divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued an opinion today in an appeal arising from the federal vitamin antitrust litigation that required the court to determine the jurisdictional reach of the federal antitrust laws under the Foreign Trade Antitrust Improvements Act. According to the opinion, this is a question over which other federal appellate courts have already divided. Circuit Judge Harry T. Edwards issued the majority opinion, in which Circuit Judge Judith Rogers joined. Circuit Judge Karen LeCraft Henderson dissented and would have endorsed the Fifth Circuit‘s understanding of the FTAIA.

Today I received the following email from an experienced appellate lawyer practicing in Washington, DC:

The D.C. Circuit Friday entered the following unusual order:

CLERK’S ORDER filed [736611] that within 15 days of the date of this order, appellants file a response to the petition, not to exceed 15 pages. It is FURTHER ORDERED that, in light of appellees’ representation that the United States has endorsed the decision in Den Norske Stats Oljeselskap AS v. HeereMac 241 F3d 420 (5th Cir 2001), the Solicitor General is invited to file a response to the petition for rehearing en banc, expressing views of the United States. The response may not exceed 15 pages. Date: 3/7/03] (mcm)

I won’t say I’m sure this is the first time a court of appeals (as opposed to the Supreme Court) has ever invited the SG to file a brief stating the views of the United States, but no other instance leaps to mind.

Thanks for writing to share news of this interesting development.

Posted at 16:29 by Howard Bashman

Another unimpressive FindLaw commentary: I’ve been underwhelmed by the average quality of the legal commentary I find published at FindLaw. Sure, certain FindLaw commentators produce work of uniformly high quality, while some of the others have their moments, but often my reaction is, “I’m glad I didn’t write that.” (Admittedly, that may be the same reaction experienced by those FindLaw commentators who happen to read “How Appealing.”)

The most recent example of FindLaw-published commentary to cause me to wonder “how did this ever get published” is an essay by David Maizenberg, Esq. entitled “If Bork Had Blogged.” Maizenberg observes that if U.S. Supreme Court nominee Robert H. Bork had blogged, Bork’s nomination to the U.S. Supreme Court never would have been approved. But, last time I checked, the U.S. Senate rejected Bork’s nomination to the Supreme Court even in the absence of the hypothetical “Bork Blog.” So, as a matter of pure logic, had Bork blogged it would have had no effect on his confirmation proceedings whatsoever. And if Miguel A. Estrada had a blog, the U.S. Senate couldn’t claim to be so in the dark about how his mind works.