“Sex Appeal”: Jeffrey Rosen has this essay online at The New Republic. In it he writes, “Yes, as a constitutional matter, Lawrence is worse than Roe.”

Posted at 23:56 by Howard Bashman

Elsewhere in Monday’s newspapers: The Washington Times reports here that “Frist backs amendment to define marriage.” Frank J. Murray reports that “Ruling on race likely to spur fight.” David Limbaugh has an op-ed entitled “Moral relativism erodes freedom”; Gary J. Andres and Michael McKenn have an op-ed entitled “Developing young minds”; and Nat Hentoff has an op-ed entitled “TV’s voice of the Constitution.”

USA Today reports here that “Canada gives gays hope for change; Couples can cross border to get legal recognition U.S. denies them.” Tony Mauro has a very interesting op-ed entitled “High court role in our lives becomes more public.” And letters to the editor appear under the heading “Supreme Court ruling on gays hits right constitutional note.”

In The Boston Globe, Lyle Denniston reports that “High court’s course debated after rulings; Two key civil rights decisions mark shift from conservatism.” And Cathy Young has an op-ed entitled “Upholding racial division.”

The Los Angeles Times reports here that “Ruling Reigns at Gay Parades; Pride events in San Francisco and other cities herald the Supreme Court decision voiding anti-sodomy laws.” In other news, “Lee vs. Viacom Raises Trademark Questions: The filmmaker is suing to stop the media giant from renaming its cable channel ‘Spike TV.'” An editorial entitled “Skewed Picture of America” begins, “By nominating William H. Pryor Jr. to the federal appeals court, George Bush has declared that the Alabama attorney general is not only qualified to sit on the nation’s second-highest court but is the kind of judge most Americans want. Senators should reject this implausible assessment.” An op-ed by Richard Sander is entitled “Colleges Will Just Disguise Racial Quotas.” And a letter to the editor appears under the heading “Conservative Opposition to Alberto Gonzales.”

Posted at 23:32 by Howard Bashman

“Ruling Lets Unwanted E-Mail In; State high court says Intel can’t stop a fired worker from sending critical messages unless they harmed the system. Critics fear companies may become targets.” The Los Angeles Times provides this report.

Posted at 23:18 by Howard Bashman

“Court: Anonymous P2P no defense”: c|net News.Com has this report on today’s ruling of the U.S. Court of Appeals for the Seventh Circuit, which I noted earlier here.

Posted at 23:02 by Howard Bashman

“Woman who wore cross gets job back; School aide reinstated until Aug. 28 hearing”: Last Thursday’s edition of The Pittsburgh Post-Gazette contained this report. And you can access the ruling of U.S. District Judge Arthur J. Schwab of the U.S. District Court for the Western District of Pennsylvania at this link.

Posted at 22:28 by Howard Bashman

From the July 7, 2003 edition of Time magazine: You can access here an article entitled “A Yea For Gays: The Supreme Court scraps sodomy laws, setting off a hot debate”; here “It’s No Big Deal: Both sides are playing up the gay-rights decision to inflame political passions”; and here “How Much Diversity Do You Want from Me? If affirmative action means having to speak for your minority, it’s asking a lot.”

Posted at 22:16 by Howard Bashman

The Associated Press is reporting: You can access here an article headlined “Lawyers Won’t Be Fined Over Disclosure” and here an article headlined “Judge Allows Evidence Against Nichols.”

Posted at 22:13 by Howard Bashman

“Sense and nonsense”: The Economist recently published this review of “Law, Pragmatism, and Democracy,” the latest book from Richard A. Posner. The review concludes, “Mr Posner is a spirited analyst of contemporary politics, and he can be an entertaining and provocative thinker. His account of the controversial Supreme Court decision awarding George Bush the presidency is well worth reading. But as his book also makes clear, he is not much of a legal theorist, and he might have made a better legislator, academic or even political campaigner than a judge.” (Via “PrestoPundit.com.”)

Posted at 19:33 by Howard Bashman

“Supremes back free speech in Intel e-mail case”: Bob Egelko of The San Francisco Chronicle has this report.

Posted at 19:22 by Howard Bashman

“Court Rejects Intel Electronic Trespass Charge”: Slashdot provides this exchange of views.

Posted at 19:19 by Howard Bashman

“California Supreme Court says anti-Intel e-mail not trespassing”: David Kravets of The Associated Press provides this report.

Posted at 17:32 by Howard Bashman

“Ex-Intel worker wins in Calif. high court”: c|net News.Com has this report.

Posted at 17:30 by Howard Bashman

“U.S. Court Rejects DEA Ban on Hemp Foods”: The Associated Press has this report. And you can access today’s ruling by a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit at this link.

Posted at 15:36 by Howard Bashman

The Fifth Circuit’s Clerk’s Office has closed early today due to Tropical Storm Bill: Details here.

Posted at 15:07 by Howard Bashman

“State’s high court upholds right of ex-Intel mass mailer”: The San Jose Business Journal has this report.

Posted at 14:47 by Howard Bashman

All Lawrence, all the time: That’s what the blog “Ninomania” has been since last Thursday.

Posted at 14:43 by Howard Bashman

Seventh Circuit announces its ruling in the Aimster case: You can access Circuit Judge Richard A. Posner‘s opinion for a unanimous three-judge panel here. In short, the injunction that was the subject of the appeal has been affirmed.

Posted at 13:48 by Howard Bashman

“Sniper Case Judge Keeps Terrorism Charge”: The Associated Press has this report.

Posted at 13:29 by Howard Bashman

You can now access online the Supreme Court of California‘s ruling in Intel Corp. v. Hamidi: Available here (78-page PDF document). The Court has ruled in favor of Hamidi, explaining:

After reviewing the decisions analyzing unauthorized electronic contact with computer systems as potential trespasses to chattels, we conclude that under California law the tort does not encompass, and should not be extended to encompass, an electronic communication that neither damages the recipient computer system nor impairs its functioning. Such an electronic communication does not constitute an actionable trespass to personal property, i.e., the computer system, because it does not interfere with the possessor’s use or possession of, or any other legally protected interest in, the personal property itself. The consequential economic damage Intel claims to have suffered, i.e., loss of productivity caused by employees reading and reacting to Hamidi’s messages and company efforts to block the messages, is not an injury to the company’s interest in its computers–which worked as intended and were unharmed by the communications–any more than the personal distress caused by reading an unpleasant letter would be an injury to the recipient’s mailbox, or the loss of privacy caused by an intrusive telephone call would be an injury to the recipient’s telephone equipment.

Our conclusion does not rest on any special immunity for communications by electronic mail; we do not hold that messages transmitted through the Internet are exempt from the ordinary rules of tort liability. To the contrary, e-mail, like other forms of communication, may in some circumstances cause legally cognizable injury to the recipient or to third parties and may be actionable under various common law or statutory theories.

The ruling is not unanimous, and you can access it in its entirety here.

Posted at 13:00 by Howard Bashman

“Bloggers Gain Libel Protection”: Wired News today provides this report.

Posted at 12:25 by Howard Bashman

“Revenues at Law Firms Rise 8.5 percent, Aided by Diversification and Cuts”: The Wall Street Journal today has this report. More information is available here, via The American Lawyer.

Posted at 11:46 by Howard Bashman

Available at National Review Online: Stephen Moore has an essay entitled “One Nation, Divisible: Supreme unwisdom.” And John Bloom has an essay entitled “Affirmative Reaction: ‘Don’t ask, don’t tell.'”

Posted at 11:39 by Howard Bashman

The Supreme Court of California will today issue its ruling in Intel Corp. v. Hamidi: The questions presented are:

(1) Does sending unsolicited noncommercial e-mail messages into a company’s computer network system in disregard of the company’s objection constitute an actionable trespass to chattel, supporting injunctive relief, in the absence of any physical disruption to the receiving computer equipment? (2) Does judicial enforcement of an injunction against the sender of such e-mail messages constitute state action under the federal or state constitutions?

The opinion is scheduled to be available online at 10 a.m. pacific daylight time.

Posted at 11:15 by Howard Bashman

“The dysfunctional Supreme Court”: Robert Novak suggests a rather improbable retirement scenario in today’s edition of The Chicago Sun-Times. (Via “Southern Appeal.”)

Posted at 11:00 by Howard Bashman

“New rights for gay couples: Gay and lesbian couples will be awarded the same legal rights as married couples under plans outlined by the government.” BBC News has this report.

Posted at 10:38 by Howard Bashman

“Scalia’s opposition misguided”: Today’s edition of The Daily Texan contains this op-ed. Meanwhile, Mike Luckovich demonstrates how difficult it is for an editorial cartoonist to poke fun at the U.S. Supreme Court. See here (not funny; via “Sugar, Mr. Poon?“) and here (somewhat funny). Finally, as for this one (by cartoonist Daryl Cagle), well, make up you own mind.

Posted at 10:06 by Howard Bashman

Hendrik Hertzberg on same-sex marriage: Here, in the July 7, 2003 issue of The New Yorker.

Posted at 09:14 by Howard Bashman

In Monday’s newspapers: The New York Times reports here that “Gays and Lesbians Parade With a New Sense of Pride.” An article reports that “Bush, Looking to His Right, Shores Up Support for 2004.” In local news, “Behind a Troubled Bench, an Arcane Way of Picking Judges.” And a letter to the editor appears under the heading “Prosecutors’ Power.”

Today’s installment of The Lawyer’s Column in The Washington Post appears under the heading “Unusual Allies? Not at All, Says Conservative Fein.” In media news, “The Peterson Murder Case, Made for Cable.” Columnist William Raspberry has an op-ed entitled “Closing the Race Gap,” and Terence J. Pell has an op-ed entitled “Camouflage for Quotas.”

In today’s edition of The Wall Street Journal, Eugene Volokh has an op-ed entitled “Nike and the Free-Speech Knot.” Jason L. Riley has an op-ed entitled “Salivating Over Fast-Food Torts.” And Shelby Steele the other day had an op-ed entitled “A Victory for White Guilt: Justice O’Connor and her colleagues embrace anti-Americanism.”

Posted at 08:15 by Howard Bashman

“Retirement’s not for all — and that’s fine”: Columnist Brian Dickerson has this op-ed in today’s edition of The Detroit Free Press.

Posted at 06:23 by Howard Bashman

“Missouri is getting its first black chief justice”: This article appears in today’s issue of The St. Louis Post-Dispatch.

Posted at 06:21 by Howard Bashman

Available online at FindLaw: Today, Sherry F. Colb has an essay entitled “Welcoming Gay People Back Into the Fold: The Supreme Court Overrules Bowers v. Hardwick.” And on Friday, Vikram David Amar had an essay entitled “Can the Senate Bind Itself So that Only a Supermajority Can Change Its Rules? A Key Issue in the Controversial Filibuster Debate.”

Posted at 06:18 by Howard Bashman

Senior Ninth Circuit Judge Alfred T. Goodwin turned 80 years old yesterday: Law Professor Jack Bogdanski, who once served as Judge Goodwin’s law clerk, was at yesterday’s celebration and has this report.

Posted at 06:15 by Howard Bashman

“Sodomy case has far-reaching significance”: David J. Garrow had this essay in Friday’s issue of The Chicago Tribune.

Posted at 06:11 by Howard Bashman

On the op-ed page of Monday’s New York Times: Stanley Fish considers “One Man’s Opinion.” And columnist William Safire‘s op-ed is entitled “The Bedroom Door.”

Posted at 23:37 by Howard Bashman

A look at the U.S. Supreme Court‘s 2002 Term: I still owe you, my loyal readers, summaries of the Supreme Court’s final ten decisions. I haven’t forgotten, and they’ll be along in due course (which is another way of saying “four down, six to go”).

Although the ink is barely dry on Thursday’s Term-ending decisions, it’s never too soon to begin reviewing the Term that has just concluded. On Tuesday, July 1, 2003, the American Constitution Society will be holding in Washington, DC:

A Supreme Court Round-up featuring: Akil Amar, Yale Law School; Preeta Bansal, former New York Solicitor General; Beth Brinkman, Morrison & Foerster; Drew Days, former US Solicitor General; Walter Dellinger, former US Solicitor General; Laurence Gold, Bredhoff & Kaiser; Maureen Mahoney, Latham & Watkins; Peter Rubin, Georgetown University Law Center; Theodore Shaw, NAACP LDF. National Press Club, 529 Fourteenth Street, N.W., 9:30 – 11:30 a.m.

You can access additional details, and RSVP instructions, here.

Then, on Wednesday, July 16, 2003, Legal Times will be hosting a program in Washington, DC moderated by Tony Mauro entitled “Sizing Up A Pivotal Supreme Court Term: A Practitioner’s View.” Scheduled to participate are:

Roy T. Englert Jr., Partner, Robbins, Russell, Englert, Orseck & Untereiner LLP; Edwin S. Kneedler, Deputy Solicitor General, U.S. Department of Justice; Maureen E. Mahoney, Partner, Latham & Watkins LLP; Paul M. Smith, Partner, Jenner & Block LLC; Seth P. Waxman, Partner, Wilmer, Cutler & Pickering.

I plan to attend the Legal Times program, and you too can sign-up to attend via this link. I’m hoping to arrive in Washington in the morning, so that I will have time to visit with some “How Appealing” readers at a few other choice locations around town. It should make for quite an interesting day.

Posted at 22:57 by Howard Bashman

“The Manifest Border” blog has moved to a new address: You can now access it here.

Posted at 22:44 by Howard Bashman

“Judge strikes down state death penalty”: Yesterday’s issue of The Indianapolis Star contained this report. Additional coverage is available via “The Indiana Law Blog.”

Posted at 22:41 by Howard Bashman

“Execution Summaries: Copies of three death-penalty memoranda prepared by Alberto R. Gonzales for Texas Governor George W. Bush”: Online here, via The Atlantic Monthly.

Posted at 22:39 by Howard Bashman

On Friday, July 4, 2003, the National Constitution Center opens in Philadelphia: Justice Sandra Day O’Connor will be on hand, perhaps joined by two other U.S. Supreme Court Justices. The Philadelphia Inquirer has a special online section where you can access complete coverage of the Center and the festivities scheduled to mark its opening.

Posted at 22:35 by Howard Bashman

The Associated Press is reporting: You can access here an article headlined “Gay Pride Parades Celebrate Court Ruling” and here an article headlined “Frist Endorses Idea of Gay Marriage Ban.”

Posted at 22:29 by Howard Bashman

“As O’Connor votes, so tilts the Supreme Court; Neither consistently liberal nor conservative, she emerged this term as having ‘the vote that matters.'” Warren Richey has this article in Monday’s edition of The Christian Science Monitor.

Posted at 22:26 by Howard Bashman

“Board will name judicial candidates; Senators reactivate panel in light of appeals vacancy”: Last week, The Milwaukee Journal Sentinel provided this report concerning plans to fill a forthcoming Seventh Circuit vacancy in Wisconsin.

Posted at 22:24 by Howard Bashman

Available online at law.com: Tony Mauro wraps-up the Term in an article headlined “Confounding the Court Watchers,” while here he provides “A Look Ahead to Next Term.” From California comes news that “Cases Begin to Fall as Prosecutors, PDs React to Decision in ‘Stogner.'” In news from New Mexico, “A Win for Unmarried Couples: Unwed can sue for loss of consortium; gay rights activists are heartened.” And in news from New York, “Appellate Specialists Come to Town” and “Conviction Overturned for Inmate Who Allegedly Attacked a Guard.”

Posted at 17:07 by Howard Bashman

“Supreme Court leans to the left; Conservatives can no longer rely on justices marching to their tune”: Bob Egelko has this article in today’s edition of The San Francisco Chronicle. And you can access here an article headlined “High court ruling likely to usher in new era for gays; Decision’s logic to have impact on other rights.”

Posted at 16:59 by Howard Bashman

“How the Supremes Redeemed Bush: The conservative court’s decisions on homosexuality and affirmative action boost Bush’s image with moderates”: Joe Klein has this essay online at Time.com.

Posted at 16:56 by Howard Bashman

“Museum Honoring Constitution Set to Open”: The Associated Press has this report from Philadelphia.

Posted at 16:51 by Howard Bashman

“Is Gay Marriage Next?” That’s the question on the cover of the July 7, 2003 issue of Newsweek. The lead article bears the headline “The War Over Gay Marriage: In a landmark decision, the Supreme Court affirms gay privacy and opens the way to a revolution in family life.” A related article reports that “Breaking Up Is Hard to Do: Marriage is one thing. But what happens when partners part? For gay couples splitting up, it’s still a legal ‘no man’s land.'” Finally for now, Evan Thomas and Stuart Taylor Jr. have an article headlined “Center Court: She helped America seek a middle ground on the thorny subject of race. Sandra Day O’Connor’s brand of justice.”

Posted at 16:45 by Howard Bashman

“Supreme Court confounds critics; Until last week, the nation’s top court had a conservative hue, but moderates changed that”: Jan Crawford Greenburg has this report in today’s edition of The Chicago Tribune.

Posted at 16:43 by Howard Bashman

“Rehnquist holds high court cards, but will he retire?” The Scripps Howard News Service has this report. And a related item lists the “Supreme Court short list.”

Posted at 16:42 by Howard Bashman

“Campaign finance highlights next Supreme Court session”: CNN.com has this report. And you can access here an article entitled “Affirmative action topped many landmark cases.”

Posted at 16:40 by Howard Bashman

“O’Connor proves pivotal on court”: This article appears in today’s edition of The Sacramento Bee.

Posted at 16:38 by Howard Bashman

“Group Wants Judge Punished for Race Case”: The Associated Press has this report.

Posted at 16:37 by Howard Bashman

In Sunday’s newspapers: In The Washington Post, Charles Lane reports that “Civil Liberties Were Term’s Big Winner; Supreme Court’s Moderate Rulings a Surprise.” A related article is headlined “Court That Liberals Savage Proves to Be Less of a Target.” An article reports that “Two Trials Make for Unlikely Allies; Separate Sniper Cases Tangle Theories of Prosecutors, Defense Teams.” You can access here an article headlined “Sodomy Ruling Prompts Promises of Activism; In Wake of Supreme Court Decision, Va. Lawmakers Predict Bills Supporting and Opposing Gay Rights.” In other local news, “Debate Rekindled Over Ten Commandments Monument.” A series of essays collected under the heading “Down the Road From The Michigan Rulings” consists of an essay by Larry Adelman entitled “Right Ruling, Wrong Reason”; an essay by Safiya McClinton entitled “More Fleeting Than Favorable”; an essay by Goodwin Liu entitled “A Moment as Big as ‘Brown'”; an essay by Martha Montelongo entitled “No Longer ‘We, the People'”; and an essay by Peter Wood entitled “Diversity? That’s a New One.” An editorial is entitled “Wanted: A Real Defense.” And in op-eds, columnist David S. Broder considers “The Scalia Model”; U.S. Senator Edward M. Kennedy has an essay entitled “The Senate Role”; and Amy Joyce writes of “A Boost for Workplace Diversity; High Court’s Ruling on College Affirmative Action Bolsters Corporate Practices.”

In The Los Angeles Times, David G. Savage reports that “Justices Take a Turn to the Left; The Supreme Court’s rulings for gay rights and affirmative action surprise many — and leave Justice Antonin Scalia on the margins.” An article reports that “Family Embodies Split on Affirmative Action; Justices’ rulings shine a light on the diversity of opinion — among the Boyds and the nation.” In other news, “Mexico Still Seen as Fugitive Friendly; Arrests of Andrew Luster and others show the country is trying to shake that image, but U.S. criminals still head for its beach towns to flee the law and blend in with the tourists.” In op-eds, Frank del Olmo writes that “Right Wing Risks a Supreme Injustice; Alberto Gonzales should not be blocked as a high court candidate”; Abigail Thernstrom argues that “College Rulings Add Insult to Injury; Court’s upholding of admissions preference glosses over need for better early schooling”; John Rechy has an essay entitled “Finally, Dignity and Respect — but at Such a Cost”; Charlotte Allen writes that “It’s Always 1984 in Cuba”; and Dana Parsons has an essay entitled “Supreme Court Shows the Way.” Philip K. Howard reviews the book “The Rule of Lawyers: How the New Litigation Elite Threatens America’s Rule of Law,” by Walter K. Olson. And letters to the editor appear under the heading “Court Strikes Bans on Gay Sex.”

In The New York Times, Adam Liptak reports that “Student Sues for Admission to Schools for Hawaiians.” In The Week in Review Section, Neil A. Lewis reports (first item) that “The Court Takes the Nation’s Pulse.” An article reports on “A Decision That Universities Can Relate To.” Here’s an affirmative action timeline. In business news, one article is headlined “Affirmative Action, Productive Potential,” while another carries the title “Affirmative Action: A Corporate Diary.” An item entitled “Debunking America’s Enduring Myths” appears in plenty of time to celebrate July 2d. A related item is entitled “Pursuing Happiness in Our Time.” In local news, “Judges Keep the State After School.” Dennis J. Hutchinson reviews Justice Sandra Day O’Connor’s newest book, “The Majesty of the Law: Reflections of a Supreme Court Justice,” and you can access the first chapter of the book here. An editorial is entitled “A Moderate Term on the Court.” And a letter to the editor appears under the heading “Enemy Combatants and Civil Liberties.”

In The Washington Times, Frank J. Murray reports that “Court’s rulings mirror culture.” In other news, “White House steps in on church-school case.” Mark Steyn has an op-ed entitled “Counting on diversity in court”; Paul Greenberg has an op-ed entitled “What Supreme Court doesn’t know about race”; Thomas Sowell has an op-ed entitled “Quotas sustained”; and Steve Chapman has an op-ed entitled “The law no one missed.”

The Boston Globe reports here that “Justice’s ‘deadline’ confounds colleges.” Glenn C. Loury writes “Affirmed… for now; The Supreme Court’s decision made affirmative action resoundingly legal. Now comes the hard part-making it unnecessary.” In local news, “A civil tradition: Data show same-sex unions in Vt. draw a privileged group.” In op-eds, Jeff Jacoby writes of “A shameless decision that promotes bias”; Ellen Goodman considers “Playing catch-up on gay sex ban”; and E.J. Graff asserts “The high court finally gets it right.” And The Boston Globe Magazine contains an article entitled “College Rivalry: Universities will do almost anything these days to land a star professor who can bring instant prestige, attract large donors, and, oh yes, even do some teaching.”

Posted at 10:12 by Howard Bashman

Available online at Reason: Jesse Walker has an essay entitled “Supreme Sodomy: Look how far this country has come,” and Jacob Sullum has an essay entitled “Know Thy Enemy Combatant: The Bush administration decides who gets due process.”

Posted at 23:29 by Howard Bashman

In Saturday’s newspapers: In The New York Times, Linda Greenhouse reports here that “Court to Hear Case on Congressional Redistricting” and here that “Justices Extend Decision on Gay Rights and Equality.” An article reports that “Administration Lawyer Lauds Affirmative Action Ruling.” You can access here an article headlined “A Few Gay Americans Tie the Knot in Canada” and here an article headlined “Judge in New Jersey Hears Arguments on Gay Marriage.” An article reports that “In Schools Case, a Certainty: Only 400 Days to Comply.” A related op-ed by Peter Schrag is entitled “Adequacy in Education: Why Is Clear. But How?” You can access here an article headlined “Where Thurmond Lived, Died and Was Forgiven.” An editorial is entitled “Strom Thurmond’s Century.” And letters to the editor appear under the headings “A Major Victory for Gay Rights” and “Affirmative Action and Justice Thomas.”

In The Washington Post, Charles Lane reports that “Gay Rights Ruling Affects Kan. Case; 17-Year Term in Teen Sex Case at Issue.” You can access here an article headlined “Experts: Redistricting Decision Aids Democrats.” In related news, “Democrats Discovering Campaign Law’s Cost.” An article reports that “Muhammad Prosecutors to Consider Non-Jury Trial; Unless All Sides Agree, Case Could Move From Pr. William.” In business news, “Flood of Fees Draining Enron Funds; $496 Million in Charges Rung Up So Far by Lawyers, Others.” An editorial is entitled “Soliciting Prayer.” Columnist Colbert I. King has an op-ed entitled “Truth From Justice Ginsburg.” And letters to the editor appear under the heading “Privacy, Gay Rights and the Supreme Court.”

In The Los Angeles Times, David G. Savage reports here that “High Court Retirement Rumors Were Just That; All the buildup for the confirmation battle lacked only one ingredient: an announcement from one of the justices” and here that “Ruling Seen as Precursor to Same-Sex Marriages; Supporters and foes of gay civil rights say the court’s overturning of sodomy laws could lead to gay unions.” In other news, you can access here an article headlined “Cell Doors Swing Open After Ruling on Molestation Cases”; here “Abuse Cases in O.C. Jolted; The Supreme Court’s rejection of a California sex-offender law could free several convicted molesters and halt other prosecutions”; and here “Burden of Proof Now Falls on Victims in Sex Abuse Civil Suits; Supreme Court decision throwing out older criminal cases will shift focus to lawsuits.” An article reports that “‘Soft Money’ Restrictions May Aid GOP; A study says Democrats depended more on larger donations in 2002 while Republicans garnered more in small contributions.” A front page article reports that “Behavior May Leave a Mark on Genes; A father is on death row. His son is accused of an eerily similar crime. Scientists are exploring the biochemistry behind violent actions.” Henry Weinstein reports “New Trial, New Charge in Old Cases; A death row inmate’s conviction is voided in the 1979 murder of an Orange County girl, but DNA allegedly links him to a 1977 Malibu killing.” And letters to the editor appear under the heading “Week of Momentous Supreme Court Decisions.”

In The Boston Globe, Lyle Denniston reports that “High court rejects appeal over antiabortion posters.” In other news, “Ruling may boost civil abuse suits; Victims see another route after court rejects Calif. law.” And an editorial is entitled “Supreme Court justice.”

The Washington Times reports here that “Sniper suspect’s request pondered.” An editorial is entitled “James Strom Thurmond.” And Michelle Malkin has an op-ed that asks “Why the cheering?”

Posted at 22:39 by Howard Bashman

“Nino’s Opera Bouffe”: Columnist Maureen Dowd has this op-ed in Sunday’s issue of The New York Times.

Posted at 20:41 by Howard Bashman

“Victims can go after schools; Indiana Supreme Court clears way for suits by those who are assaulted”: This article appears in today’s issue of The Indianapolis Star.

Posted at 19:34 by Howard Bashman

“Rehnquist Speaks at Judicial Conference”: The Associated Press provides this report.

Posted at 19:33 by Howard Bashman

“Supreme Court Retirement Appears Unlikely for Now”: Neil A. Lewis has this article in Sunday’s issue of The New York Times.

Posted at 16:25 by Howard Bashman

“Justice sworn in at High Court”: This article appears in today’s edition of The Honolulu Advertiser.

Posted at 16:24 by Howard Bashman

“Ashcroft Opponent Poised for Court Post”: The AP reports here.

Posted at 16:23 by Howard Bashman

“Supreme Court Looking Less Conservative”: Anne Gearan of The Associated Press has this report. And in related coverage, you can access here an item entitled “Major Rulings in This Supreme Court Term” and here an item entitled “Supreme Court by the Numbers.”

Posted at 16:22 by Howard Bashman

“What ‘Conservative’ Supreme Court?” This editorial appears in today’s edition of The New York Post.

Posted at 13:50 by Howard Bashman

“Democrats Praise Supreme Court on Affirmative Action”: Reuters reports here.

Posted at 13:49 by Howard Bashman

Exit stage left: That’s what the U.S. Supreme Court did at the close of this Term, according to this report from CBS News.

Posted at 13:47 by Howard Bashman

“Kansas told to rethink gay sex case”: Today’s edition of The Kansas City Star contains this report.

Posted at 13:46 by Howard Bashman

Elsewhere in Friday’s newspapers: In The Los Angeles Times, David G. Savage reports here that “Bans on Gay Sex Ruled Unconstitutional; Privacy: Law can’t be used to single out homosexuals for disapproval, Supreme Court says in 6-3 ruling”; here that “High Court Rejects Nike Appeal in Speech Suit; Company claims 1st Amendment protection. Justices vote to send the case back for a trial”; and here that “Shift of Black Voters in Ga. Upheld.” An article reports that “California Molestation Law Struck Down; Abuse: Hundreds of convictions will be tossed out and prosecutions dropped, some involving priests.” Henry Weinstein reports that “Man’s Death Sentence Overturned; Justices say public defenders in the murder trial did not investigate or present evidence of childhood abuse that could have swayed a jury.” An article reports that “Politics in Play for a Seat Not Yet Vacant.” You can access here an article headlined “Sodomy Ruling Fuels ‘the Culture War’; Gays celebrate the landmark decision as a ‘day of liberation.’ Christian groups fear the decree could lead to same-sex marriage.” An editorial is entitled “A Door Marked ‘Private’: Supreme Court has barred government from places it ought not to enter.” An obituary is headlined “Longest-Serving Senator Led Segregationist South.” In other news, “Settlement Gets Lead Out of Kaopectate; The antidiarrhea liquid has been reformulated as a result of a lawsuit; the caplets will follow.” An article reports that “Bounty Hunter to Be Tried; Mexican judge says prosecution of the man who captured fugitive should deter others.” Andrew P. Napolitano has an op-ed entitled “‘Enemy Combatants’ Cast Into a Constitutional Hell.” And a letter to the editor appears under the heading “Best Filter for Internet Porn Is the Parents.”

In The Boston Globe, Lyle Denniston reports here that “Court reverses gay sex ban; Ruling cites right to privacy”; here that “Court upholds statute of limitations on prosecution”; and here that “Case called US setback.” An article reports that “Retirement drama caps end of high court’s term.” In related news, you can access here an article headlined “Gays, lesbians praise decision; Others compare it to Roe v. Wade” and here an article headlined “State’s gay marriage backers are elated.” An editorial is entitled “A victory for intimacy.” An obituary bears the headline “Strom Thurmond dead at age 100.” And columnist Derrick Z. Jackson has an op-ed entitled “Bush’s jive act on campus diversity.”

In The Washington Times, Frank J. Murray reports here that “Sodomy law struck down” and here that “High court voids Md. death sentence.” An article reports that “Sodomy decision triggers emotional reactions.” An editorial is entitled “Privacy amok.” In other news, “Appeals court rejects U.S. effort to block Moussaoui.” An obituary is headlined “Strom Thurmond, Senate legend, dies.” And Clarence Page has an op-ed entitled “Wise counsel.”

In USA Today, Joan Biskupic reports here that “Gay sex ban struck down; Supreme Court majority says such laws violate privacy”; here that “Decision represents an enormous turn in the law”; and here that “2 justices’ influence felt in latest term; Rehnquist, O’Connor signal they’ll be around for awhile.” An article reports that “Ruling sides with death-row inmate.” You can access here an article headlined “Sodomy ruling gives hope to many; But others say court has hurt ‘natural family'” and here “Attitudes on gay relations tied to demographics.” An obituary is entitled “Politics loses South Carolina icon; Ex-segregationist was senator for record 48 years.” Editorials appear under the headings “Court ruling ushers in overdue rights for gays” and “Death penalty concerns.” And an op-ed by Ken Connor is entitled “Right to privacy goes too far.”

Posted at 22:40 by Howard Bashman

“Court OKs sex offender photos; State’s online list to show faces, addresses”: Today’s edition of The Indianapolis Star contains this report.

Posted at 22:39 by Howard Bashman

“In the Land of Guantanamo”: This article appears in Sunday’s issue of The New York Times Magazine.

Posted at 22:34 by Howard Bashman

“Mr. Diversity”: Columnist Bill Keller has this op-ed about Justice Clarence Thomas in tomorrow’s edition of The New York Times.

Posted at 22:31 by Howard Bashman

Do court records available online contain too much information about you? This article appears in today’s issue of The Orlando Sentinel.

Posted at 22:29 by Howard Bashman

“Woman wins record damages over strip search”: The Age has this report. And in related news, that publication contains an article headlined “$138,000 payout over strip search.” And The Herald Sun reports here that “A simple ‘sorry’ would have saved taxpayers $700,000.”

Posted at 22:25 by Howard Bashman

“Tenn. Judge Refuses to Allow Horse As Pet”: And in federal court, no less. The Associated Press has this report.

Posted at 21:00 by Howard Bashman

NPR‘s Nina Totenberg summarizes yesterday’s U.S. Supreme Court rulings: Listen here (Real Player required).

Posted at 17:40 by Howard Bashman

Eugene Volokh deserves his own MSNBC blog: Here’s all the proof you’ll need, in a post entitled “Judging Clarence Thomas.”

Posted at 16:58 by Howard Bashman

Reuters is reporting: You can access here an article entitled “U.S. Supreme Court to review credit card fees”; here “Top Court Rejects Appeal by Abortion Opponents”; here “Supreme Court Won’t Review Sidewalk Disability Case”; and here “Supreme Court’s Rulings on Gays, Race Surprises.”

Posted at 16:48 by Howard Bashman

“The Executioner’s I.Q. Test”: This upcoming Sunday’s edition of The New York Times Magazine will contain this article that addresses “what’s wrong with exempting the retarded” from the death penalty.

Posted at 16:34 by Howard Bashman

Law firm of Altheimer & Gray to dissolve Monday? That’s what Crain’s Chicago Business is reporting here.

Posted at 16:27 by Howard Bashman

Senate Judiciary Committee likely to vote on nomination of William H. Pryor, Jr. to the Eleventh Circuit on July 10, 2003: “Southern Appeal” has details here.

Posted at 16:23 by Howard Bashman

“Santorum again the target of gay activists”: This article appears in today’s issue of The Pittsburgh Post-Gazette.

Posted at 16:00 by Howard Bashman

Thou shalt not remove this plaque: The Philadelphia Inquirer reports here that “Chesco’s Commandments can remain; An appeals court cited historical value of the courthouse plaque.” The Pittsburgh Post-Gazette reports here that “Court upholds Ten Commandments plaque on courthouse.” The Daily Local of Chester County, Pennsylvania reports here that “The plaque can stay” and here that “Courthouse crowd supports ruling.”

Posted at 15:49 by Howard Bashman

“Oral arguments start in case for same-sex marriages”: The Philadelphia Inquirer has this news from New Jersey.

Posted at 15:39 by Howard Bashman

Online at Salon.com: Tim Grieve has an essay entitled “The next war: Bush and the Supreme Court; With William Rehnquist and Sandra Day O’Connor considering retirement, activists on all sides are preparing for a firefight over Bush’s next high-court nominee.” And Andrew Sullivan writes of “A great day for liberty; In his dissent from the Supreme Court’s historic decision in the Texas sodomy case, angry Antonin Scalia was right about one thing: The next step is gay marriage.”

Posted at 15:24 by Howard Bashman

“Texas to Restore Race in Admissions”: The Associated Press reports here that “Six years after dropping affirmative action in favor of a 10 percent solution, Texas’ public university system will work to restore race as a factor in admissions, with the blessing of the U.S. Supreme Court.”

Posted at 15:14 by Howard Bashman

Unconstitutional “punishment” for “pure thought”: Today a divided three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued a decision in which the majority’s opinion begins:

John Doe was banned for life from all park property in the City of Lafayette, Indiana–including a golf course, sports stadium, and city pools. The City did not provide notice or a hearing before instituting the ban, nor did it allow Doe to appeal its decision. Doe filed suit against the City, arguing that the ban violates his First Amendment right to freedom of thought and a fundamental right under the Fourteenth Amendment to loiter in public parks. The district court granted summary judgment in favor of the City. We reverse, finding the ban violates the First Amendment.

The dissenting opinion, by contrast, begins:

The majority invalidates the City of Lafayette’s (“the City” or “Lafayette”) action because, in its view, the ban order against Mr. Doe violates the First Amendment. In my view, the City has adopted a reasonable proscription designed to protect a vulnerable part of the population, its children, against the danger of a relapse by Mr. Doe. Therefore, I respectfully dissent.

The majority and Mr. Doe base their position on the conclusory proposition that banning Mr. Doe from the park constitutes “punishment” for “pure thought.” See Appellant’s Br. at 9. This view requires that we close our eyes to Mr. Doe’s actions in that park in January of 2000. It also requires that we give short shrift to Mr. Doe’s condition as an admitted pedophile who, despite some progress in dealing with his condition, continues to have difficulty controlling his urges. Indeed, it is difficult to see how the City’s ban impacts expression protected by the First Amendment. Not only was Mr. Doe’s conduct lacking the expressive element necessary to invoke the First Amendment’s protection, but his thoughts, if expressed, would fall into categories of expression the Supreme Court has held to be unprotected.

You can access the complete decision at this link.

Posted at 13:39 by Howard Bashman

Uninformative statistics: Eugene Volokh takes a closer look at the Bloomberg News article I mentioned yesterday bearing the headline “Prosecutor Misconduct Is Found in 18% of Appeals, Study Says.” The underlying study by The Center for Public Integrity is accessible here. Update: The “Zonitics” blog offers additional commentary here.

Posted at 13:34 by Howard Bashman

En banc Eighth Circuit considers when it will enforce waiver of appellate rights as part of a plea agreement on federal criminal charges: You can access today’s en banc ruling of the U.S. Court of Appeals for the Eighth Circuit at this link.

Posted at 13:06 by Howard Bashman

“Sandra Day O’Connor was no accident of history.” Dahlia Lithwick and Walter Dellinger wrap-up their discussion this week about the Supreme Court of the United States.

Posted at 12:12 by Howard Bashman

Seventh Circuit grants rehearing en banc in free speech case involving college journalists: You can access the appellate docket entries here, via the Seventh Circuit’s Web site. You can access the now-vacated three-judge panel ruling here, and you can access my original coverage of that ruling (including other useful links) here. Plus, here’s an AP report entitled “Federal Appeals Court To Rehear GSU Paper Case.”

Posted at 12:10 by Howard Bashman

Access online the NAFTA ruling in the matter between The Loewen Group and the USA: It is available here (71-page PDF document).

Posted at 11:50 by Howard Bashman

And in other news from the U.S. Supreme Court: Anne Gearan of The Associated Press reports here that “Supreme Court Will Settle Privacy Case.” And an article reports that “Supreme Court to Hear Everglades Case.”

Posted at 11:47 by Howard Bashman

D.C. Circuit affirms dismissal of suit brought by wartime sex slaves against Japan: Today’s ruling by a unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit begins:

The appellants are 15 women from China, Taiwan, South Korea, and the Phillippines; they brought this suit against Japan, seeking money damages for having been subjected to sexual slavery and torture before and during World War II. The district court held Japan immune from suit pursuant to the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. secs. 1330, 1602–1611, because it had not waived its immunity and the conduct alleged did not come within the commercial activity exception to the FSIA. The district court also held the suit was barred under the political question doctrine.

We affirm the judgment of the district court. Under the FSIA Japan is entitled to immunity from suit concerning the pre–1952 acts alleged in this case. We reject the appellants’ argument that violation of a jus cogens norm constitutes a waiver of sovereign immunity.

You can access the complete opinion at this link.

Posted at 11:31 by Howard Bashman

“Pryor: Ruling makes Alabama law ‘unenforceable’; Gay rights groups cheer ruling on Texas ban, others dismayed”: This article appears in today’s edition of The Mobile Register. (Via the newly-redesigned “Southern Appeal.”)

Posted at 11:17 by Howard Bashman

Available at National Review Online: Ramesh Ponnuru has an essay entitled “The Perils of Rationality: A comment on that Texas gay-rights case.” David Frum considers “Sodomy in Texas.” Robert A. Levy has an essay entitled “Discriminate but Obfuscate: The Court’s message to universities.” And Peter Wood has an essay entitled “Affirming Faction: Diversity’s multiple meanings.”

Posted at 11:11 by Howard Bashman

“Court Rejects Anti-Abortion Appeal”: The Associated Press has this report regarding the denial of certiorari in the Nuremberg Files case. The article also notes the denial of review in the City of Sacramento case involving sidewalk accessibility and the Americans with Disabilities Act.

Posted at 10:56 by Howard Bashman

NAFTA News — “Panel absolves U.S. of Loewen damages”: The Globe and Mail contains this report. Many readers may recall that The New Yorker in November 1999 published a lengthy and very interesting article about the facts giving rise to this NAFTA lawsuit.

Posted at 10:37 by Howard Bashman

Today’s U.S. Supreme Court Order List: You can access it online here. The Court summarily affirmed in one case, noted probable jurisdiction in another, and granted certiorari in four more cases. The Order List closes with the following words: “RECESS ORDER The Court will take a recess from today until Monday, September 8, 2003.”

Posted at 10:20 by Howard Bashman

“Student Sues Hawaiian School Over Race”: The Associated Press today has this report. Yesterday’s edition of The Honolulu Star-Bulletin reported here that “Kamehameha sued over its admissions; The challenge alleges the Hawaiians-only policy is in violation of federal civil rights laws.” And today’s edition of that newspaper reports that “Kamehameha trustees bank on preferences being upheld; The trust retains a mainland law firm to defend its entry policy.” Additionally, today’s issue of The Honolulu Advertiser reports here that “Kamehameha plans ‘vigorous’ defense.”

Posted at 10:17 by Howard Bashman

“Ronnie White ready to take historic role at Supreme Court”: Yesterday’s issue of The Jefferson City News Tribune contained this report.

Posted at 09:40 by Howard Bashman

“Rep. Alcee Hastings Mulls Run for Senate”: The Associated Press has an article that begins, “Rep. Alcee Hastings formed an exploratory committee Thursday to help him mull a run for the Senate, the chamber that removed him as a federal judge more than a decade ago.”

Posted at 07:07 by Howard Bashman

In Friday’s newspapers: In The New York Times, Linda Greenhouse reports here that “Justices, 6-3, Legalize Gay Sexual Conduct in Sweeping Reversal” and here that “Nike Free Speech Case Is Unexpectedly Returned to California.” In other news, you can access here a report entitled “Court Limits the Prosecution of Sexual Abusers of Children”; here “Court Allows a New Approach to Redrawing Districts by Race”; and here “Justices Throw Out a Murderer’s Death Penalty, Due to Poor Defense.” Neil A. Lewis reports that “Conservatives Furious Over Court’s Direction.” From San Francisco comes news that “Gays Celebrate, and Plan Campaign for Broader Rights.” A related editorial is entitled “A Gay Rights Landmark.” In news from the Fourth Circuit, “Bush Officials Lose Round in Prosecuting Terror Suspect” and “Microsoft Can Leave Java Out of Windows, Court Rules.” In business news, an article reports that “Senate Panel Agrees to Increase Size of Asbestos Trust.” One obituary bears the headline “Strom Thurmond, Foe of Integration, Dies at 100,” while another bears the headline “Jose Trias Monge, 83, Puerto Rico Chief Justice, Dies.” And in local news, you can access here a report entitled “Court Rules State Shortchanged New York City on School Funds”; here “Battle Lines Drawn: It’s City vs. State”; here “Few Understand How Subsidies Are Set”; and here “As a Long Road Ends, Another Begins.” And a related editorial is entitled “Fighting for Fairness at School.”

In The Washington Post, Charles Lane reports here that “Justices Overturn Texas Sodomy Ban; Ruling Is Landmark Victory for Gay Rights”; here that “Court Strikes Down California Law That Lifted Statute of Limitations”; here “Justices Decline to Hear Nike Case; Suit Over Corporate Statements Was Viewed as Free-Speech Test”; and here that “Death Penalty Of Md. Man Is Overturned.” In other news from the U.S. Supreme Court, you can access here an article headlined “High Court Orders Review of Redistricting Plan” and here an article headlined “Rehnquist Uses ‘R’ Word to Good Effect.” A news analysis reports that “A Debate on Marriage, And More, Now Looms,” while an article reports that “Gay Community Hails ‘a New Day’; Ruling on Sodomy Law Celebrated.” In other news, “Appeals Court Rebuffs U.S. in Moussaoui Case.” An obituary reports that “Ex-Senator Thurmond Dies at 100; Lawmaker Helped Shape Modern GOP.” An editorial is entitled “Breakthrough.” Columnist George F. Will has an op-ed entitled “Lap Dancing On the Constitution,” and columnist Charles Krauthammer has an op-ed entitled “No ‘Roe’ Replay On Affirmative Action.”

The Christian Science Monitor reports here “Big boost for privacy rights; In a ruling on a Texas law, the Supreme Court strengthened both gay rights and abortion rights.”

At OpinionJournal, an editorial is entitled “Sodomy and Sneakers; A Roe v. Wade for gay rights.” And Daniel Henninger has an op-ed entitled “40 Years After

Rev. King’s Speech Court Adds 25; Beating racism is a moral fight, not a legal one.”

Posted at 06:36 by Howard Bashman

Not quite the news: “Stevens quits”? See for yourself.

Posted at 06:27 by Howard Bashman

New record: The Bravenet hit counter here at “How Appealing” on Thursday recorded 35,818 visits, blasting past the previous record established on Monday of 25,708.

Posted at 00:09 by Howard Bashman

This was unexpected: You can access here an article entitled “Sandra Day O’Connor Quits Supreme Court, Joins Supremes.” (Thanks to Rob Truman of the Boley Law Library, Lewis and Clark Law School, for the pointer.)

Posted at 23:46 by Howard Bashman

Available online at law.com: Tony Mauro reports here that “U.S. Supreme Court Strikes Down Law Banning Gay Sex” and here that “Supreme Court Won’t Hear Nike Free Speech Case.” Jonathan Ringel reports that “High Court Revives Democrats’ Redistricting Plan; Justices mull ‘overall’ effect on minorities.” Shannon P. Duffy reports that “Plaque of Ten Commandments May Stay on Courthouse Wall.” In other news, “High Court Declines to Reopen Bomber Crash Case; U.S. high court declines to review case involving 1948 military crash.” And in news from New York, you can access here an article headlined “Landmark Ruling Raises Public Education Standard; State system has sunk below constitutional requirement” and here an article headlined “Right to Counsel Cannot Be Invoked By a Third Party.”

Posted at 23:43 by Howard Bashman

“Smooth sailing for Duncan; Nominee for 4th Circuit Court gets friendly questions before Senate panel”: Today’s edition of The Raleigh News and Observer contains this report.

Posted at 23:31 by Howard Bashman

Elsewhere in Thursday’s newspapers: Today’s edition of The Washington Times reports here that “Abortion foes poised for court vacancy.” In other news, “Malvo team seeking ‘under spell’ defense.” An op-ed by Cal Thomas is entitled “Negative action,” and William Murchison has an op-ed entitled “Law and principles.”

The Boston Globe reports here that “Admissions ruling may cool the issue.”

In The Los Angeles Times, Henry Weinstein reports that “Prosecutor Misconduct Probed in National Study; About 2,000 cases have been overturned, set aside or retried since ’70 because of wrongdoing.” In other news, “EEOC Suit Against Firm Reinstated.” An article reports that “Bounty Hunter Faces Judgment in Mexico; American who captured fugitive rapist Andrew Luster could get four years in prison.” An editorial is entitled “Kids, Shackles and Shame.” And letters to the editor appear under the headings “Will Racial Entitlements Be a Permanent System?” and “Outreach and Affirmative Action.”

Posted at 23:05 by Howard Bashman

Flabbergasted by today’s Moussaoui ruling: A reader who, putting it mildly, knows a thing or two about criminal appeals emails:

I am flabbergasted by the Fourth Circuit decision in Moussaoui, in the way that only a true appellate geek can be flabbergasted. The government’s authority (don’t like to say “right” when talking about The State) to appeal in a criminal case is not primarily governed by the “final order ” rule of 28 USC sec 1291 (see Arizona v Manypenny, 451 US 232, 247 (1981); US v. Jannotti, 673 F2d 578, 580 n.1 (3d Cir. 1982) (en banc). Obviously an order allowing the defendant pretrial access (by whatever means) to a detained witness is interlocutory. The government’s authority to appeal in criminal cases is defined by specific statutes, primarily 18 USC sec 3731 (adopted in 1970), which the 4th Cir never mentions. The fact that there is no authorization to appeal an order of this kind in sec 3731 is the most powerful evidence that the Court lacked jurisdiction, but somehow was not mentioned in the opinion. In light of sec 3731, it is doubtful even that general “collateral order” jurisdiction under sec 1291 should still be recognized for govt appeals (cf. Carroll v US, 354 US 394 (1957)), but since the order in question was plainly not “entirely separate from the merits” it couldn’t be “collateral” either, as the Court of Appeal correctly ruled. The failure to address 3731 first, rather than 1291, astonishes me. Since this order would surely not be appealable by the government after trial, however, the first part of the opinion makes no sense.

Thanks for sending along this especially thoughtful email.

Posted at 23:04 by Howard Bashman

Ex-S.C. Sen. Strom Thurmond Dies at 100: The Associated Press has this report.

Posted at 22:49 by Howard Bashman

Lawrence v. Texas, the early days: Jim Dedman links to the decisions of a Texas intermediate appellate court that set the stage for today’s U.S. Supreme Court ruling striking down laws that make consensual homosexual sodomy a crime.

Posted at 22:39 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “High Court Ruling Sparks Strong Reactions” and here an article entitled “Indiana Court Upholds Sex Offender Law.” A bit more information about the second article is available over at “The Indiana Law Blog.”

Posted at 22:31 by Howard Bashman

Twelve years ago tomorrow: Justice Thurgood Marshall announced his retirement from the Supreme Court of the United States.

Posted at 22:19 by Howard Bashman

Hot or not? Today’s events made Law Professor Jack Bogdanski think about Byron White and Myron Bright.

Posted at 22:15 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “Supreme Court Librarian Retires” and here an article entitled “Scalia Blasts Court on Sodomy Ruling.”

Posted at 19:23 by Howard Bashman

“Plaintiffs are oenophiles who reside in the Houston area.” Don’t worry, it just means that they like wine. And the Fifth Circuit today affirmed a trial court’s ruling that “Texas violates the Commerce Clause by economically discriminating against out-of-state wineries in favor of its own in-state wineries.” At this rate, soon Texas will have no one against whom it can legally discriminate (except, perhaps, in university admissions).

Posted at 19:15 by Howard Bashman

O’Connor and Rehnquist: Trying to top the report that “Sinead O’Connor Announces Retirement,” a reader emails the link to an article reporting that “Janet Rehnquist Resigns.”

Posted at 17:47 by Howard Bashman

“Court OKs Race As Factor in Wash. Schools”: The AP has this report. You can access today’s ruling of the Supreme Court of Washington State here (majority opinion), here (concurrence), and here (dissent). (Thanks to the author of “Balasubramania’s Mania” for the links.)

Posted at 17:38 by Howard Bashman

“Woman Sues Maternity Wear Company”: For pregnancy discrimination, of course. The Associated Press has this report. (Maybe she was wearing another company’s clothing?)

Posted at 17:27 by Howard Bashman

Endorsed by the “militant moderate”: The “militant moderate” blog, that is. See the post here, and check out the end of this post for a theory about what “The Volokh Conspiracy” actually entails.

Posted at 17:26 by Howard Bashman

“Prosecutor Misconduct Is Found in 18 Percent of Appeals, Study Says”: Bloomberg News has this report. You can access the study via this link. On the bright side, no prosecutorial misconduct was found in 82 percent of appeals.

Posted at 17:02 by Howard Bashman

Available at National Review Online: Douglas W. Kmiec writes of “Michigan’s Small World: Racial preference for diversity is constitutional only in elite institutions.” An editorial is entitled “Travesty: The Court failed to do its duty.” Ward Connerly examines “Murder at the Supreme Court: Meritocracy and equal treatment, R.I.P.” And Deroy Murdock explains “Got Spike? You may be sued.”

Posted at 16:53 by Howard Bashman

But please tell us how you really feel! The author of the blog PrestoPundit writes, “Read the most recent legislation enacted by our Supreme, er, Court. Nine unelected old people decide what they want the laws to be, and you obey. A crazy system in a Liberal democracy — and more than a bit out of control.” And Clayton Cramer is presumably preparing to leave the country — but where to go? (But seriously, you can access Clayton’s posts concerning today’s ruling here and here.)

Posted at 16:30 by Howard Bashman

People who know stuff and have opinions: Law Professors Jack Balkin and Lawrence Solumn have posts on Lawrence v. Texas. Law student Phil Carter looks at the ruling from the perspective of the U.S. military.

And Law Professor Rick Hasen of the “Election Law” blog writes about today’s ruling in Georgia v. Ashcroft.

Posted at 16:26 by Howard Bashman

Available online at The Washington Post: Charles Lane reports here that “Supreme Court Strikes Down Texas Sodomy Law” and here that “Supreme Court Throws Out Death Sentence for Maryland Man; Decision Sets New Standards for Right to Effective Counsel.”

Posted at 16:17 by Howard Bashman

“Sinead O’Connor Announces Retirement”: Oh the things readers send me.

Posted at 16:15 by Howard Bashman

“Court Overturns Microsoft Injunction”: Reuters provides this report. And Declan McCullagh reports here that “Court curbs Microsoft’s Java distribution.”

Posted at 15:46 by Howard Bashman

“Holy Moses! 3rd Circuit Rules Ten Commandments Can Stay”: Shannon P. Duffy of The Legal Intelligencer has this article on today’s Third Circuit ruling.

Posted at 15:42 by Howard Bashman

“Court Lets Pa. Commandments Plaque Stay”: The Associated Press has this report.

Posted at 15:40 by Howard Bashman

Microsoft wins a big part of its appeal in the Sun Microsystems case: Today the U.S. Court of Appeals for the Fourth Circuit issued this decision.

Posted at 15:34 by Howard Bashman

When to move off tenterhooks: The idea of a U.S. Supreme Court Justice announcing retirement from the bench on the last day of the Term is a bit overrated. Why hold your colleagues captive for that, and why share the spotlight (or divert the spotlight from today’s newsworthy rulings)? Instead, in recent memory, the announcement usually comes from behind a podium before the press corps. Accordingly, I would suggest waiting until the end of the day tomorrow before moving off the tenterhooks.

Posted at 15:10 by Howard Bashman

“Fairbanks libraries reconsider pornography filters”: The AP provides this news from Alaska.

Posted at 15:05 by Howard Bashman

The Associated Press is reporting: Anne Gearan reports here that “Supreme Court Strikes Down Gay Sex Ban” and here that “Supreme Court Won’t Hear Nike Ad Case.” Gina Holland reports here that “Court Strikes Down Law on Old Sex Crimes” and here that “Supreme Court Rules Lawyers Failed Client.” Here’s a report entitled “Court Gives States Boundary Leeway.” An article bears the incorrect title “Sept. 11 Suspect May Question Witness.” Sorry NYU, this correction says. In other news, “Court Says NY School System Failing Kids” (and access the opinion of the New York State Court of Appeals at this link); “Wolfowitz to Choose Tribunal Commission“; and “Judge Rules for Reporters in Murder Case.”

Posted at 14:48 by Howard Bashman

In case anyone missed it: Chief Justice William H. Rehnquist did announce from the bench this morning the retirement of the U.S. Supreme Court‘s librarian. A spirited confirmation battle, and possibly a filibuster, are anticipated. And any nominee who refuses to reveal his or her personal views about the Dewey Decimal System may have a very difficult time winning the votes of certain Senators.

Posted at 14:42 by Howard Bashman

Dahlia Lithwick asks “Did Justices Kennedy and O’Connor have some sort of conversion?” See her posting here (second item).

Posted at 14:39 by Howard Bashman

“The facts are amazing, but we shall resist the temptation to recount them at length.” Amazing indeed! Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued an opinion by Circuit Judge Richard A. Posner that begins:

John Veysey appeals from his conviction, after a jury trial, and sentence of 110 years in prison for mail and wire fraud, arson, and the related offense of felony by fire. The facts are amazing, but we shall resist the temptation to recount them at length. In 1991 Veysey set fire to his house and inflated the claim that he then filed with his insurer. The insurer paid, and the house was rebuilt. The following year Veysey married a woman named Kemp, increased the insurance on the house, removed the valuable contents of the house, along with himself and his wife, and then cut the natural-gas line inside the house, causing the house to fill up with gas and explode spectacularly, utterly destroying it. He grossly exaggerated the value of the property allegedly lost in the explosion–some did not exist and some he had removed before the explosion. The insurance company (a different one) paid, and he used part of the proceeds to buy another house. The next year he tried to kill his wife by driving his van with her in it into a river. When that failed he killed her by poisoning her, and collected $200,000 in the proceeds of insurance policies on her life. He placed personal ads in newspapers, seeking to meet women. He became engaged to one of the women he met through his ads, named Donner, but broke his engagement after failing to procure a $1 million policy on her life. He then took up with a Ms. Beetle. This was in 1996 and the same year he burned down his house, again submitting an inflated estimate of the loss and receiving substantial proceeds from the insurance company (a different one, again). He then married Beetle, and they moved into a rented house. She insured her life for $500,000 with him as beneficiary. One night in 1998, after drugging her, he set fire to the house, hoping to kill both her and their infant son, on whom he had also taken out a life insurance policy and who was in the house with her. They were rescued, and soon afterwards Veysey and Beetle divorced. The house was rebuilt and Veysey persuaded a woman named Hilkin to move in with him after she had accumulated some $700,000 in life insurance and named him as the primary beneficiary. He apparently intended to murder her, but he was arrested before his plans matured. There is more, but these are the highlights.

You can access the complete opinion at this link.

Posted at 14:31 by Howard Bashman

“Houston attorney calls today ‘day of independence'”: The Houston Chronicle has this report.

Posted at 13:26 by Howard Bashman

Walter Dellinger predicts the outcome in Lawrence v. Texas: I know, I know, so did everyone else, but his prediction is in print here at Slate.

Posted at 12:52 by Howard Bashman

“Court vacancy would trigger political warfare; Since Bork battle, confirmation fights have intensified in the Senate”: Tom Curry has this report at MSNBC.com.

Posted at 12:50 by Howard Bashman

“Court Gives States Boundary Leeway”: The Associated Press has this report.

Posted at 12:28 by Howard Bashman

“Bill Frist sets some rules for a Supreme Court confirmation battle.” See his letter to all Senators here, via National Review Online.

Posted at 12:26 by Howard Bashman

“Court: Ten Commandments plaque can stay”: The Philadelphia Inquirer has this early report.

Posted at 12:14 by Howard Bashman

You can now access online the Third Circuit‘s ruling in the Ten Commandments plaque on the exterior of the county courthouse case: It is available here.

Posted at 11:51 by Howard Bashman

No retirement(s)? Just because no Justice announced from the bench of the Supreme Court of the United States this morning that he or she is retiring doesn’t mean that such an announcement won’t come at some other time soon.

Posted at 11:35 by Howard Bashman

U.S. Court of Appeals for the Third Circuit reverses trial court’s order directing removal of Ten Commandments plaque from Chester County, Pennsylvania courthouse: The decision issued this morning isn’t yet available online, but I’ll post a link to it when it becomes available. For now, you can access a report on the oral argument in the case via this link.

Posted at 11:30 by Howard Bashman

“Supreme Court Dismisses Nike Free-Speech Appeal”: Reuters has this early report. And Anne Gearan of The AP provides this report.

Posted at 10:59 by Howard Bashman

“Supreme Court Rules Lawyers Failed Client”: The Associated Press has this report.

Posted at 10:55 by Howard Bashman

“Supreme Court kills ban on gay sex”: The Houston Chronicle has this breaking news. CNN.com reports here that “Supreme Court strikes down Texas sodomy law.” And The AP reports here that “Supreme Court strikes down gay sex ban.” Links to this ruling are now available, below.

Posted at 10:26 by Howard Bashman

“Court Strikes Down Law on Old Sex Crimes”: Gina Holland of The Associated Press has this report.

Posted at 10:22 by Howard Bashman

Today’s U.S. Supreme Court opinions: The Supreme Court of the United States today announced decisions in the following five argued cases: Lawrence v. Texas (syllabus here; majority opinion here; opinion concurring in the judgment here; dissenting opinion here; additional dissenting opinion here; oral argument transcript here); Nike, Inc. v. Kasky (per curiam dismissal here; concurring opinion here; dissenting statement here; dissenting opinion here; oral argument transcript here); Georgia v. Ashcroft (syllabus here; majority opinion here; concurring opinion here; additional concurring opinion here; dissenting opinion here; oral argument transcript here); Stogner v. California (syllabus here; majority opinion here; dissenting opinion here; oral argument transcript here); and Wiggins v. Smith (syllabus here; majority opinion here; dissenting opinion here; oral argument transcript here).

Later today, the Court could issue an Order List. Update: Now I’m advised the Order List won’t issue until tomorrow.

Posted at 10:00 by Howard Bashman

“Federal Court Dismisses Appeal in Moussaoui Case”: The Washington Post has this report available online.

Posted at 09:58 by Howard Bashman

BREAKING NEWS: U.S. Court of Appeals for the Fourth Circuit decides federal government’s appeal in Zacarias Moussaoui case: You can access the ruling at this link.

The federal government today has lost in its effort to obtain immediate reversal of the trial court’s order that granted Moussaoui access in preparation of his defense to an al Qaeda member being held by the U.S. military overseas. The Fourth Circuit ruled that it lacked appellate jurisdiction and that the trial court’s order was not so clearly wrong as to merit invocation of the extraordinary writ of mandamus.

Posted at 09:15 by Howard Bashman

“Justice O’Connor’s Real World Wisdom”: Al Hunt offers this appreciation in today’s issue of The Wall Street Journal.

Posted at 09:04 by Howard Bashman

Who is that masked “How Appealing” reader: Why, it’s Adam White, of course.

Posted at 09:02 by Howard Bashman

“Divided US court reflects divided nation”: BBC News today offers this analysis.

Posted at 08:14 by Howard Bashman

“US court to rule on gay case”: BBC News provides this report. And The Daily Texan reports here that “Sodomy law ruling expected today; Supreme Court likely to be closely divided on issue.”

Posted at 08:13 by Howard Bashman

“Supreme Court May Decide Several Cases”: The Associated Press offers this report.

Posted at 07:43 by Howard Bashman

On today’s agenda: The Supreme Court of the United States is scheduled to announce rulings in the five remaining argued cases this morning at 10 a.m. eastern daylight time. You can access my list of those cases and the questions they present at this link. We may also learn at that time whether any Justice on the Court intends to retire this summer. Stay tuned for complete coverage.

Also this morning, one of the regional federal courts of appeals is expected to announce a ruling of significance. And where would you expect to learn the details of the ruling first? Indeed.

Posted at 06:09 by Howard Bashman

“How Dare Justice Thomas Dissent on This One”: This op-ed by Sheryl McCarthy appears in today’s issue of Newsday.

Posted at 06:05 by Howard Bashman

“Disabled woman can bear child, guardian says”: Today’s issue of The Orlando Sentinel contains this report.

Posted at 06:04 by Howard Bashman

Today’s FindLaw columnist: Edward Lazarus has an essay entitled “The Supreme Court And Equal Protection: Why This Term’s Momentous Affirmative Action and Same-Sex Sodomy Cases Have Put the Doctrine To the Test.”

Posted at 06:02 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “Judge Mulls La. ‘Choose Life’ Plates” and here an article entitled “Courts Back Feds in Legal War on Terror.”

Posted at 06:00 by Howard Bashman

In Thursday’s newspapers: The Washington Post reports here that “Va. Grand Jury Probes Group of Muslim Men; 2 Held After Guns, Documents Found in Raids.” In other news, “Judge Declines to Free Farmer Pending Trial; Court Outburst, Alleged Threats Cited.” An article reports that “Lawyers Say Malvo Was Under A ‘Spell’; Muhammad Controlled Youth, Defense Team Contends in Sniper Case.” Richard Cohen has an op-ed entitled “Confused O’Connor,” while Jim Hoagland has an op-ed entitled “Round-the-World Ruling.”

The New York Times reports here that “Ruling in ’98 Blackface Case Finds Favor in the Community.” In other news, “Trenton Court Refuses to Ease Requirements for Poor Schools.” An op-ed by William Safire is entitled “Big Media’s Silence.” And a correction explains that “An article on June 12 about confirmation hearings for William H. Pryor, Alabama’s attorney general, who has been nominated for a federal judgeship, referred incorrectly to Senator Arlen Specter of Pennsylvania, a member of the Judiciary Committee. He indeed appeared at the hearing, and questioned Mr. Pryor. (Mr. Specter had told a reporter that he was not going to attend because he was busy, but as the hearing was near an end, he decided to go.)” Of course, you heard it here first back on June 12th.

Today’s installment of John Fund’s Political Journal at OpinionJournal is entitled “Bush Eyes Brown; The California jurist who may replace Justice O’Connor.” And Barbara D. Phillips has an essay entitled “Mo’ Better Spikes? Lee claims the name that many share.”

Posted at 05:59 by Howard Bashman

“Lawyers Pursue Evidence in Sniper Case”: The Associated Press has this report.

Posted at 22:45 by Howard Bashman

Statistics: According to statistics compiled by Tom Goldstein of SCOTUSblog, the Supreme Court of the United States so far this Term has decided eleven cases by a margin of 5-4 (either entirely or as to a major issue). Only one Justice has been in the majority in all eleven instances. Her name is Sandra Day O’Connor.

Posted at 22:41 by Howard Bashman

Available online at law.com: Jason Hoppin reports here that “9th Circuit Colors in Rules for Web Libel.” From New York comes news that “Judge-Picking Dispute Delays Nominees; Schumer, Pataki closing in on power sharing deal.” And from Texas comes a report that “Paperwork Glitch Almost Scuttles Tulia Writ Applications.”

Posted at 22:31 by Howard Bashman

“Disabled, city settle sidewalk lawsuit; Sacramento agrees to set funding and not push case to high court.” This article appears in today’s edition of The Sacramento Bee.

Posted at 22:28 by Howard Bashman

“Left, right take aim at Bush aide; Both oppose possible nomination of Alberto Gonzales to Supreme Court”: Today’s issue of The Ft. Worth Star-Telegram contains this report.

Posted at 22:26 by Howard Bashman

In twelve hours from now: Everyone will be waiting for news of the U.S. Supreme Court‘s rulings in the five remaining argued cases and for word about whether any of the Justices has announced retirement.

Posted at 22:12 by Howard Bashman

From Thursday’s edition of The Telegraph (UK): Even one more interview with Justice Sandra Day O’Connor, and she’s asked the question that’s on everybody’s mind. And here’s an article headlined “Outrage as black judge attacks affirmative action.”

Posted at 19:43 by Howard Bashman

If you’ve been wondering why there’s not a law blog named “stickbugblog”: Your prayers have been answered. And the blogger lives in Philadelphia, no less.

Posted at 19:29 by Howard Bashman

Tomorrow: CNN.com reports here that “Supreme Court expected to issue ruling on sodomy laws.” And CBS MarketWatch reports here that “Supreme Court ruling due on Nike.”

Posted at 19:27 by Howard Bashman

A relator in a qui tam False Claims Act action cannot proceed pro se: That’s what the U.S. District Court for the District of Columbia ruled in this decision dated Monday, June 23d.

Posted at 19:23 by Howard Bashman

“Dan Morales jailed; Judge revokes former attorney general’s bond”: David Pasztor of The Austin American-Statesman has this report from Texas.

Posted at 19:16 by Howard Bashman

“How To Confirm O’Connor’s Replacement … and end the deadlock on federal judges.” Timothy Noah has this chatterbox essay online at Slate.

Posted at 19:13 by Howard Bashman

“Democrats continue to press for consultation on Supreme Court nominee”: Jesse J. Holland of The Associated Press has this report.

Posted at 18:53 by Howard Bashman

“Judge OKs Plan for Disabled Rape Victim”: The AP reports here from Orlando, Florida that “A severely retarded rape victim who was thrust into an abortion debate when Gov. Jeb Bush said he wanted a guardian appointed for her fetus will be allowed to carry her pregnancy to term, a judge ruled Wednesday.”

Posted at 17:41 by Howard Bashman

“Law Experts Say Terror Trial Rules Unfair”: The Associated Press has this report. (A large number of law experts in this blog’s audience are now remarking to themselves, “Hey, no one asked me!” I feel your pain.)

Posted at 17:28 by Howard Bashman

How will this affect me, Al Franken? The “Election Law” blog looks at how Justice Sandra Day O’Connor’s retirement would affect the U.S. Supreme Court‘s decision in the BCRA/McCain-Feingold cases.

Posted at 17:03 by Howard Bashman

“Ladies and gentlemen, the Supremes”: Law Professor Jack Bogdanski of the Lewis and Clark Law School in Portland, Oregon explains, in a blog post you can access here, that “[e]ven if you don’t follow legal news much, this is a good week to check out the doings at the U.S. Supreme Court.”

Posted at 16:51 by Howard Bashman

See for yourself: Streaming video of U.S. Senator Patrick J. Leahy‘s talk today at the National Press Club is now available for viewing online here (Real Player required).

Posted at 16:11 by Howard Bashman

Americans United for Separation of Church and State to file amicus brief opposing cert. in the Pledge of Allegiance case: You can access online the amicus brief, to be filed in the Supreme Court of the United States tomorrow, at this link. (Thanks to both the sender, and the online host, of the brief, for making this blog post possible.) As I noted here last night, tomorrow is also the one-year anniversary of the Ninth Circuit‘s issuance of its original opinion in the Newdow case.

Posted at 16:04 by Howard Bashman

“Is Justice O’Connor getting ready to pack it in?” That’s the question on Dahlia Lithwick’s mind this afternoon (second entry here). A reader of “How Appealing” who attended Senator Patrick J. Leahy‘s (D-VT) talk today at the National Press Club emails with the prediction “that Leahy knows that there will be one SCOTUS vacancy, opened by O’Connor’s retirement.” Speculation abounds, but perhaps tomorrow we will know for sure.

Posted at 15:07 by Howard Bashman

“Winks, Nods — and Preferences”: Lino A. Graglia has this op-ed in today’s issue of The Wall Street Journal. (Via “Ex Parte.”)

Posted at 15:03 by Howard Bashman

“Court Curbs EPA’s Cleanup Order Powers”: The Associated Press has this report. And you can access yesterday’s ruling of the U.S. Court of Appeals for the Eleventh Circuit at this link.

Posted at 15:00 by Howard Bashman

“U.S. lags on gay rights; Supreme Court can help”: Steve Sanders had this op-ed in Sunday’s issue of The Chicago Tribune.

Posted at 14:09 by Howard Bashman

To be incompetent or youthful: The U.S. Court of Appeals for the Ninth Circuit today handed down two interesting rulings in the area of criminal law.

In one case, Circuit Judge Alex Kozinski on behalf of a unanimous three-judge panel ruled that a criminal defendant sentenced to death who becomes incompetent due to mental illness is entitled to a stay of habeas proceedings until he or she again becomes capable of assisting counsel. You can access Judge Kozinski’s very interesting opinion here.

In the other case, Circuit Judge Stephen Reinhardt ruled on behalf of a unanimous three-judge panel that a defendant who pleaded guilty to various federal drug-related criminal offenses under the guise that he was past the age of majority was entitled to an evidentiary hearing on remand after he claimed, for the very first time on appeal, that he was a juvenile at the time of the crime. Under Ninth Circuit law, the federal district court would have lacked subject matter jurisdiction over the criminal charges if brought against a juvenile in the absence of a special certification by the Attorney General of the United States, which had not been obtained for obvious reasons. You can access this opinion here.

Posted at 13:32 by Howard Bashman

On the agenda: Today at 2 p.m., the Senate Judiciary Committee will hold a confirmation hearing for Fourth Circuit nominee Allyson K. Duncan. You can access a live Webcast of the hearing via this link.

Posted at 12:51 by Howard Bashman

Could Dowd be right? Today New York Times columnist Maureen Dowd has an op-ed entitled “Could Thomas Be Right?” about Justice Clarence Thomas’s separate opinion in the Grutter v. Bollinger case. Andrew Sullivan and Robert Alt don’t agree with what Dowd has to say.

Posted at 12:44 by Howard Bashman

“Fla. Judge Fights to Preserve Everglades”: The Associated Press provides this report.

Posted at 12:32 by Howard Bashman

“Life tenure for judges ensures better courts”: Richard J. Kopf, the Chief Judge of the U.S. District Court for the District of Nebraska, has this op-ed in today’s edition of The Omaha World-Herald.

Posted at 12:02 by Howard Bashman

Dahlia Lithwick left Walter Dellinger speechless for an entire day: But no longer, and today he calls her last posting “extraordinary–biting, witty, and brilliant. And also profoundly wrong.”

Posted at 11:54 by Howard Bashman

“Court Won’t Reopen 1948 Bomber Crash Case”: The Associated Press provides this report.

Posted at 11:51 by Howard Bashman

Another big win for the Office of the Solicitor General: Details here, via the blog “Life, Law, Libido.”

Posted at 11:26 by Howard Bashman

Back to the future with the Volokhs: The other day, Eugene Volokh wrote that “Apparently our future-dated posts are coming up on our archive page already; * * * I guess it’s time for us to finally switch to some other blogging software.”

Here’s what he means — if you click here, you can read blog entries that have been written to post online at “The Volokh Conspiracy” at specified dates and times in the future. While I’d be the first to admit that this isn’t the equivalent of a newspaper reporter pretending to be filing a report from a city on a day when he’s not there, I’m curious whether blog readers care about what I’ll call “dateline integrity” in blogging? Anyone with views on this topic is invited to comment via email.

Update: The blog “Sugar, Mr. Poon?” miraculously predicted this post. And my friend Sasha Volokh responds here.

Posted at 11:15 by Howard Bashman

“The Google backlash: The king of search rules the Web — but now some of the natives are growing restless.” Farhad Manjoo has this essay online today at Salon.com.

Posted at 11:01 by Howard Bashman

Also at National Review Online: James Justin Wilson has an essay entitled “Diversity’s Division: Reality at Michigan.” And Gabe Neville has an essay entitled “Not So Diverse: The secret lives of campus conservatives.”

Posted at 10:56 by Howard Bashman

Speaking while black: Today the U.S. Court of Appeals for the Sixth Circuit issued an opinion that examines “the issue of racial voice identification.” According to the opinion, “In a study involving 421 graduate and undergraduate students at Stanford University, the participants were asked to identify the racial or ethnic background of twenty different speakers. They correctly identified the African-American males’ voices approximately 88 percent of the time.”

Posted at 10:52 by Howard Bashman

Available online at The Hill: An article reports that “‘Nuclear’ option retained to break filibuster.” And Byron York has an essay about the judicial confirmation process entitled “When Democrats attack, stand your ground.”

Posted at 10:45 by Howard Bashman

Available at National Review Online: William J. Bennett has an essay entitled “Restoring Equality, Restoring Civil Rights; So much for the long march of civil rights.” And Eugene Volokh has an essay entitled “Club Codes: The slippery slope hits the local Elks.” Of course, Professor Volokh all but owns the slippery slope these days.

Posted at 09:52 by Howard Bashman

“O’Connor voices hope for day affirmative action not needed; In a rare interview the day after issuing a landmark University of Michigan ruling, a key justice reflects on racial preferences, her groundbreaking career and life on the high court”: Jan Crawford Greenburg has this report in today’s edition of The Chicago Tribune.

Posted at 09:38 by Howard Bashman

In Wednesday’s newspapers: The New York Times reports here that “G.O.P. Pushes Easier Rule on Filibusters.” In coverage relating to the University of Michigan rulings, an article reports that “Impact on Universities Will Range From None to a Lot.” In related news, “Group Vows to Monitor Academia’s Responses.” An article reports that “Enemy Combatant Decision Marks Change, Officials Say.” In local news, “Judge Rules City Erred by Firing 3 for Blackface.” An editorial is entitled “Internet Filters and Free Speech.” Columnist Maureen Dowd has an op-ed entitled “Could Thomas Be Right?” And letters to the editor appear under the heading “Affirmative Action: The Ruling and the Debate.”

In The Washington Post, Charles Lane has a news analysis entitled “In Court’s Ruling, a Nod to Notion of a Broader Elite.” An article reports that “U-Mich. Rulings Spur Strategic Scramble; Affirmative Action’s Backers and Foes Ponder Response to High Court’s Decision.” In other news, “GOP Votes To Break Nominee Filibusters; Democrats Appear Able to Block Plan.” In business news, “Verizon Backs Portability Of Phone Numbers.” Columnist David S. Broder has an op-ed entitled “How to Head Off a Fight Over the High Court.” Columnist Courtland Milloy has an op-ed entitled “A Ruling Not Entirely Of This Reality.” And in letters to the editor, “Diversity and the High Court” and “The Other Side of Class Action Reform.”

The Washington Times reports here that “Conservatives slam split race rulings” and here that “Justice’s ’25 years’ holds potential for more lawsuits.” In other news, “Senate Rules panel votes to ban judge-choice filibusters.” Editorials appear under the headings “Bad law on preferences” and “Don’t legalize gay marriage.” And in op-eds, Bruce Fein has an essay entitled “Disguised quotas”; Terry Eastland writes of “Quotas with tenure”; Paul Craig Roberts has an essay entitled “Trumping the Constitution”; and Jonah Goldberg asserts “Argument faulty in affirmative-action ruling.”

In The Los Angeles Times, David G. Savage reports that “At High Court, How They Rule Is a Matter of Opinion.” An article reports that “Jailing of Juveniles Examined; Supervisors seek alternatives for teens held in men’s facility while awaiting trial.” In other news, “N.Y. Violated Rights of Trio, Judge Rules; Two firefighters and a police officer were fired for wearing blackface during a parade.” Steve Lopez writes that “Dogged Determination Nabbed Luster While the FBI Catnapped.” And letters to the editor appear under the heading “Justices Endorse Affirmative Action.”

The Boston Globe reports here that “States eye court’s race-based admissions ruling; Some Calif. leaders seeking to repeal Proposition 209” and here that “Texas ponders changes to 10% law.” An op-ed by Robert Kuttner is entitled “Other rights are hanging by a thread,” while an op-ed by Derrick Z. Jackson asks “What about the bonus points for whites?”

The Christian Science Monitor reports here that “Admissions shifting well before ruling.” Editorials appear under the headings “An Affirming Court Ruling” and “Blocking Porn at Libraries.” Finally for now, Trevor Corson has an op-ed entitled “The hues of affirmative action.”

Posted at 06:27 by Howard Bashman

Available online at FindLaw: Michael C. Dorf has an essay entitled “The Supreme Court’s Divided Rulings in the University of Michigan Affirmative Action Cases: What Does it All Mean?” And Joanne Mariner has an essay entitled “Rehnquist Family Values: The Supreme Court’s Misguided Decision in Overton v. Bazzetta.”

Posted at 06:14 by Howard Bashman

“Context and the Court”: Linda Greenhouse will have this news analysis in Wednesday’s issue of The New York Times.

Posted at 23:15 by Howard Bashman

“When America talks about race, all of us need to listen; A US victory for affirmative action points the way for British universities”: Wednesday’s edition of The Guardian (UK) contains this commentary.

Posted at 23:14 by Howard Bashman

“Partisans gear up for possible court vacancy”: CNN.com tonight provides this report.

Posted at 23:03 by Howard Bashman

Available online at law.com: Jason Hoppin has an article headlined “Heightened Scrutiny: U.S. Supreme Court paid close attention to 9th Circuit this term.” And here’s a chart illustrating the sources of the U.S. Supreme Court‘s cases decided on the merits this Term. In news from New York, “Participation in Racist Float Ruled to Be Protected Speech” and “Panel Deals Another Blow to Gun Suit.” And an article bears the headline “Calif. High Court: Apply ‘But For’ Standard in Transactional Malpractice Case.”

Posted at 22:43 by Howard Bashman

“1 court retirement could tip balance; Observers whisper Stevens’ name”: Jan Crawford Greenburg had this article in yesterday’s issue of The Chicago Tribune.

Posted at 22:31 by Howard Bashman

Racial preferences in university admissions: Garrett Moritz (no, not this guy) examines “Why ’25 years” is important, before 2028.”

And relatedly, I have received via email the text of a press release from the Young Conservatives of Texas entitled: “Better Than Bakke: YCT Says Supreme Court’s Michigan Decisions, Despite Their Shortcomings, Place Significant New Limits on Use of Race in Admissions; Organization Warns Univ. of Texas President That His Pledge to Reimpose Racial Preferences in Undergraduate Admissions is Illegal Under Michigan Rulings Because School Has Already Reached ‘Critical Mass’ Through Race-Neutral Policies.” That argument could very well prove successful before the right panel of Fifth Circuit judges.

Posted at 22:23 by Howard Bashman

Big case, important parties, and highly regarded law firms don’t always merit a full-blown opinion on the merits: Take, for example, this not-for-publication decision that the U.S. Court of Appeals for the Fourth Circuit issued today in the antitrust dispute known as R.J. Reynolds Tobacco Co. v. Philip Morris USA, Inc.

Posted at 22:16 by Howard Bashman

Will a Justice announce retirement from the U.S. Supreme Court on June 26th? Yes. And on June 26, 2003, you can wish happy first birthday to the Ninth Circuit‘s Pledge of Allegiance ruling.

Posted at 20:26 by Howard Bashman

“More Than 7,000 Legal Cases From Missouri History Now Are Online In New Supreme Court Historical Database”: Who ever thought we’d live to see the day when “an online resource allowing access to more than 7,000 legal actions pursued to the [Missouri] highest court between 1790 and 1871” became available free of charge? Details here. Too bad that I’ve already decided to spend tonight watching “Rabbit-Proof Fence” (reviews here and here) and, thereafter, writing more of an appellate brief.

Posted at 20:24 by Howard Bashman

“Judge Fights Allegations in Court Ruling”: Gina Holland of The Associated Press has the latest news about allegations of internal Sixth Circuit rule-breaking.

Posted at 20:19 by Howard Bashman

A bomb damage repair update from the Yale Law School: You can access it here. (Thanks to the reader who forwarded this along.)

Posted at 19:45 by Howard Bashman

ScrappleFace hones in on my territory: You can access here and here Scott Ott’s posts concerning this week’s rulings from the Supreme Court of the United States.

Posted at 17:29 by Howard Bashman

“Mich. Starts Work on Admissions Policy”: The Associated Press has this report.

Posted at 17:18 by Howard Bashman

Even more coverage of the University of Michigan rulings: The Detroit News reports here that Jennifer Gratz celebrates and “feels vindicated after beating U-M”; Barbara Grutter is “proud of fight, despite loss“; and Patrick Hamacher is both delighted and baffled. You can access an entire package of reports from The Detroit News via this link. The Ann Arbor News also provides comprehensive coverage, available here. And The Detroit Free Press has a bunch of articles on yesterday’s rulings, and you can access them via this link.

Elsewhere, Michael Kinsley writes online at Slate of “Supreme Court Fudge.” At Reason, Robert A. George has an essay entitled “Sandra and George’s Diversity Garden Party; Everybody’s got a compelling interest,” and Julian Sanchez has an essay entitled “Token Gesture: The Supremes make the best of a bad situation.” David Davenport of the Hoover Institution has an essay entitled “Affirmative inaction.”

Elsewhere, Thulani Davis has an essay in The Village Voice entitled “Affirmative Action: A Court of Two Minds; Race Counts … Just Don’t Say How Much.” A commentary at Business Week suggests “Try Wealth-Based Affirmative Action; Poverty, more than race itself, holds kids back. So schools should give more preference to students from impoverished backgrounds.” Roger Pilon of the Cato Institute argues here that “The Court Stumbles Again.” Drake Bennett has an essay online at The American Prospect entitled “Affirmative Decision: Why yesterday’s ruling puts affirmative action on firmer ground than ever before.” John Podhoretz has an op-ed in The New York Post entitled “Embarrassing Illogic.” And from The Harvard Crimson comes a report that “Harvard administrators hail Court’s mixed decision as victory.”

Posted at 16:58 by Howard Bashman

Senator Santorum’s nightmare: I’m sorry, but why did the author of the “SW Virginia law blog” have to send me an email bringing this not-for-publication opinion that the Fourth Circuit issued today to my attention?

Posted at 16:37 by Howard Bashman

Online at The Weekly Standard: Terry Eastland writes of “Our Living Constitution: The Supreme Court’s Michigan law school ruling means that the Constitution means one thing today and will mean another in 2028.” And Claudia Winkler has an essay entitled “Liberal Perversity: The left wing of the Supreme Court votes against the Children’s Internet Protection Act.”

Posted at 16:15 by Howard Bashman

“Senate Panel Seeks Change on Judicial Nominees”: Reuters provides this coverage.

Posted at 16:11 by Howard Bashman

“Library Web censorship riles workers”: The Times Herald-Record today contains a report that begins, “The Supreme Court may be able to censor the Internet, but it can’t censor Phyllis Vail. ‘I think it’s stupid, ridiculous, asinine, whatever you want to say,’ Vail said yesterday, reacting to a Supreme Court decision to force federally funded public libraries to equip computers with anti-pornography filters. Vail directs the Port Jervis Free Library.”

Posted at 16:07 by Howard Bashman

Can a retailer’s refusal to sell alcoholic beverages to a disabled person whose symptoms mimic the traits of intoxication violate the Americans with Disabilities Act? Yes, a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit ruled today, in an opinion you can access here.

Posted at 15:46 by Howard Bashman

“Judge Rules NYC Violated Workers’ Rights”: The Associated Press reports here that “The city violated the First Amendment rights of two firefighters and a police officer when it fired them for riding on a parade float in blackface in 1998, a judge ruled Tuesday.”

Posted at 14:37 by Howard Bashman

Available online at Salon.com: You can access here an essay entitled “Right ruling, wrong reason: The Supreme Court did the right thing by upholding affirmative action — but by pretending that racial preferences don’t harm anyone, it showed that America still can’t talk straight about race.” A related item appears under the heading “A difficult, divisive issue: Top thinkers on race relations say Monday’s Supreme Court rulings on affirmative action herald another generation of opportunity and another generation of conflict.” Finally, you can access here an essay entitled “Filter mojo: The institutions struggling to rid the Internet of porn and spam may have found the one weapon that works: The Net itself.”

Posted at 14:33 by Howard Bashman

Kabbala and gematria: A reader emails:

I am a rising 2L at Georgetown with backgrounds in both Jewish thought and mathematics. I therefore read with interest the posting about kabbala. Unfortunately, your contributor misunderstood what gematria is.

Gematria isn’t about counting letters; it’s about the value of the letters! Clearly, Due Process is based on the gematria of “due” equals 10 (the letter “daled” has a value of 4; the letter “vav” has 6; those two letters compose the word “due”).

Affirmative action equals 25 because the Hebrew word for lavan (white) equals 52, and just as affirmative action reverses white exclusivity, 25 is the reverse of 52.

Aha, now we’re getting somewhere with this!

Posted at 14:29 by Howard Bashman

“Michigan Muddle: The Supreme Court’s schizophrenic preference.” Deroy Murdock has this essay today at National Review Online.

Posted at 14:26 by Howard Bashman

“Let Judges Do Their Jobs”: Senior U.S. District Judge John S. Martin Jr. of the U.S. District Court for the Southern District of New York has an op-ed in today’s edition of The New York Times that concludes, “When I took my oath of office 13 years ago I never thought that I would leave the federal bench. While I might have stayed on despite the inadequate pay, I no longer want to be part of our unjust criminal justice system.” A contributor at “The Academy” blog knows Judge Martin well and voices regret over the events that have led to this result.

Posted at 14:23 by Howard Bashman

Do you know the way from San Jose? Today a three-judge Ninth Circuit panel entered a published order directing a U.S. District Judge based in San Jose, California to conduct some additional proceedings on remand, after which the trial court is to forward its supplemental findings and conclusions of law to the Ninth Circuit. What strikes me as odd, however, is that in the final paragraph of the published order the Ninth Circuit judges set forth the mailing address of the Ninth Circuit’s Clerk’s Office. If there’s one thing that a federal district court already knows well, it’s how to send documents up to the federal appellate court that regularly reviews its rulings. (This post’s title loosely based on a song by Burt Bacharach and Hal David.)

Posted at 14:05 by Howard Bashman

First Amendment and defamation law in cyberspace: Today a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a ruling in which the majority opinion begins:

There is no reason inherent in the technological features of cyberspace why First Amendment and defamation law should apply differently in cyberspace than in the brick and mortar world. Congress, however, has chosen for policy reasons to immunize from liability for defamatory or obscene speech “providers and users of interactive computer services” when the defamatory or obscene material is “provided” by someone else. This case presents the question whether and, if so, under what circumstances a moderator of a listserv and operator of a website who posts an allegedly defamatory e-mail authored by a third party can be held liable for doing so. The case also presents a novel procedural question — whether the denial of an Anti-SLAPP suit filed pursuant to California law can be appealed prior to a final judgment in the underlying case. After recounting the unusual tale underlying this case, we address each of these questions in turn.

The opinion concurring in part and dissenting in part begins:

I respectfully dissent from the majority’s analysis of the statutory immunity from libel suits created by sec. 230 of the Communications Decency Act (CDA). The majority gives the phrase “information provided by another” an incorrect and unworkable meaning that extends CDA immunity far beyond what Congress intended. Under the majority’s interpretation of sec. 230, many persons who intentionally spread vicious falsehoods on the Internet will be immune from suit. This sweeping preemption of valid state libel laws is not necessary to promote Internet use and is not what Congress had in mind.

You can access the complete ruling at this link.

Posted at 13:36 by Howard Bashman

“Senate Panel Votes to Limit Filibusters”: Jesse J. Holland of The Associated Press has this report.

U.S. Senator John Cornyn (R-TX) has issued the following press release to mark the occasion:

BID TO END PARTISAN OBSTRUCTION CLEARS KEY SENATE COMMITTEE

Rules Committee vote a “crucial first step in judicial nomination reform,” Cornyn says

WASHINGTON – The Senate Rules Committee took an important step toward repairing the broken judicial confirmation process Wednesday, U.S. Senator John Cornyn said following the committee’s 10-0 vote to pass Senate Resolution 138. The bipartisan proposal, co-sponsored by Cornyn, would guarantee full debate on nominees, while enabling a Senate majority to eventually hold up-or-down votes—bringing an end to the current obstruction faced by judicial nominees such as Justice Priscilla Owen of Texas and Miguel Estrada.

“This resolution is a reasonable, common-sense proposal,” Sen. Cornyn said. “There are at least 26 laws on the books today that prohibit a minority of senators from using the filibuster to permanently block certain kinds of measures. The judicial confirmation process should surely be added to this list. By passing this resolution, the committee recognized that, and took a crucial first step in judicial nomination reform.”

Cornyn, Chairman of the Judiciary Committee’s Subcommittee on the Constitution held a May 6 hearing on the constitutionality of filibusters against judicial nominees, where filibuster reform was first debated. And S. Res. 138 was debated in a Rules Committee hearing on June 5 where Cornyn testified on behalf of the reform. The rule change would gradually reduce the 60-vote requirement on successive cloture votes until a filibuster could eventually be ended by a simple majority. Such a rule would prevent endless delay of judicial nominees, while ensuring the right of the minority to have an adequate debate–the original purpose of filibusters.

“The current filibusters of judicial nominees, done not to ensure adequate debate, but to block a Senate majority from confirming judicial nominees, are unprecedented and wrong,” said Cornyn. “This resolution repairs that damage, bringing certainty to the confirmation process: all nominees brought to the Senate floor can be afforded an up-or-down vote.”

Currently, in an unprecedented move, a minority of senators is blocking an up-or-down vote for Justice Owen, nominated to the U.S. Court of Appeals for the Fifth Circuit, and Miguel Estrada, nominated to the U.S. Court of Appeals for the D.C. Circuit.

“There has never been a filibuster of a judicial nominee–now there are two,” Sen. Cornyn said. “Further nominees are threatened to be filibustered and we must do something soon or this downward spiral of obstructionism will only grow beyond our capacity for reform. Such failure would be especially troubling, and in fact unacceptable, during the confirmation debate on a future nominee to the Supreme Court. I hope my colleagues will join me in approving this bipartisan measure when it reaches the Senate floor for a vote. Judicial nominees, now and in the future, deserve no less.”

The resolution now moves to the full Senate for a vote. A majority of the Senate is sufficient to approve a rules change. Under Senate Rule 22, debates on a rule change can be ended by a two-thirds vote. However, Cornyn’s May 6 hearing on the constitutionality of filibusters against judicial nominees demonstrated the widely-held view shared by legal scholars and Vice Presidents across the political spectrum that a prior Senate majority cannot constitutionally forbid a current Senate majority from changing the rules if it wants to do so.

Cornyn chairs the Subcommittee on the Constitution, Civil Rights & Property Rights, and is the only former judge on the Senate Judiciary Committee. He served previously as Texas Attorney General, Texas Supreme Court Justice, and Bexar County District Judge.

And thus, the plot thickens.

Posted at 12:26 by Howard Bashman

“The battle for the Constitution”: Columnist Cal Thomas today has this essay in which he previews what might happen when a vacancy opens on the U.S. Supreme Court.

Posted at 10:49 by Howard Bashman

“Judge: Marshall violated woman’s right to ‘dirty dance'”: Today’s edition of The Asheville Citizen-Times contains an article that begins, “Dancers in Marshall might want to clear the floor now that Rebecca Willis, thanks to a judge’s recommendation, can get down. U.S. District Court Judge Max O. Cogburn Jr. said the town violated Willis’ First Amendments rights by barring her from dancing. Willis’ gyrations, on video tape, look like a cross between Mick Jagger’s pelvic swagger and a fish flopping on the end of a line.”

Posted at 10:30 by Howard Bashman

The Daily Texan is reporting: The student newspaper of the University of Texas reports here that “Court votes 5-4 to keep policy; Ruling upholds use of racial status to grant admissions”; provides here “Affirmative Action: An Overview”; and notes here that “‘Hopwood is dead.'” An editorial is entitled “Split decision best for society.” And here’s an interesting article entitled “Heated legal issue revisited for two longtime colleagues; UT law professors remain as closely divided as the Court’s ruling.” (Via Jim Dedman.)

Relatedly, the University of Texas Web site offers a press release entitled “The University of Texas at Austin reacts to the Supreme Court’s affirmative action decisions.”

Posted at 10:22 by Howard Bashman

Available online at The Hill: You can access here an article headlined “Hispanics, blacks laud court ruling”; here “Retirement fears ease as top court adjourns” [ed.: Huh?]; here “Specter boosts Hatch for future court vacancy”; and here “Senate weighs ways to ban secret holds.”

Posted at 10:11 by Howard Bashman

“Green Tree case sent back to arbitrator”: From South Carolina, The State provides this report.

Posted at 09:50 by Howard Bashman

Available at National Review Online: Peter N. Kirsanow, a commissioner on the U.S. Commission on Civil Rights, has an essay entitled “The Abominable Snow Job: Court says discrimination on the basis of race is not unlawful discrimination.” And David Frum writes of “A Fine Mess.”

Posted at 09:39 by Howard Bashman

In Tuesday’s newspapers: In The New York Times, Linda Greenhouse reports here that “Justices Back Affirmative Action by 5 to 4”; here that “Justices Back Law to Make Libraries Use Internet Filters”; and here that “Justices to Hear Case on Whether the Disabled Can Sue States on Access to Courtrooms.” Neil A. Lewis reports that “Angry Groups Seeking a Justice Against Affirmative Action.” Adam Liptak reports that “Affirmative Action Proponents Get the Nod in a Split Decision.” A news analysis bears the headline “After 25 Years, a Road Map for Diversity on Campus.” In related coverage, you can access here an article headlined “Diversity Still Crucial Issue at University, Students Say”; here “Ruling Provides Relief, but Less Than Hoped”; and here “Companies See Ruling as a Way to Help Keep the Pipeline Open.” And a related editorial is entitled “A Win for Affirmative Action.” An article reports that “Court Rejects Law Designed to Help Holocaust Survivors Get Insurance Information.” In science news, “A Mathematician Crunches the Supreme Court’s Numbers.” An article reports that “Librarians Size Up Internet Filter Law’s Impact.” In local news, “Ruling on Religious Markers, but No End to the Fight.” And an op-ed by Senior U.S. District Judge John S. Martin Jr. of the U.S. District Court for the Southern District of New York is entitled “Let Judges Do Their Jobs.”

In The Washington Post, Charles Lane reports here that “Affirmative Action for Diversity Is Upheld; In 5 to 4 Vote, Justices Approve U-Mich. Law School Plan”; here that “Ruling Backs Porn Filters In Libraries”; and here that “Court Rejects Law Aiding Survivors of Holocaust; Calif. Act Undercut Presidential Role, Ruling Says.” In other news, “Lending Dispute Won’t Be Heard; Supreme Court Returns Protracted Case to Arbitrator.” A news analysis reports that “Court Mirrors Public Opinion.” You can access here an article headlined “Decision Means Most Colleges Will Stay Course.” A related editorial is entitled “Reaffirmative Action.” And in other news, “Justice Backs Evangelists Seeking Access to Schools.”

In The Los Angeles Times, David G. Savage reports here that “Court Affirms Use of Race in University Admissions” and here that “Web Porn Filters at Libraries Upheld; Facilities that receive federal money must shield children from smut, justices rule.” You can access here an article headlined “Decisions May Lead to More Lawsuits; Observers on both sides of the affirmative action debate see the rulings as opening doors to disputes over how they should be carried out”; here “State Finds Itself Hemmed In; Because of California’s 1996 ban on racial preferences, the Supreme Court’s rulings on race do not apply directly here”; and here “Day of Celebration in Michigan City at Center of Court Debate; Students at Ann Arbor university laud the Supreme Court’s ruling upholding the law school’s affirmative action policy.” Henry Weinstein reports that “Holocaust Insurance Law Negated; The U.S. high court rejects a California statute to help survivors collect on Nazi-era policies. Lawmakers promise new legislation.” In other news, “U.S. Court’s Ruling Allows Rocketdyne Suits to Continue.” An article reports that “Notes by Luster May Offer Clues; U.S. officials are trying to obtain a journal that the fugitive rapist reportedly left in Mexico. It could contain names of accomplices.” An editorial is entitled “A Welcome Affirmation.” And in op-eds, Jonathan Turley has an essay entitled “A Ruling That Only Goldilocks Could Love; We still don’t know how much weight to give race in college admissions,” while Jim Sleeper writes of “Negatives vs. Affirmatives; Countermeasures against racism have gone too far for much too long.”

In The Boston Globe, Lyle Denniston reports here that “Race in admissions upheld; Court allows use by schools as one factor” and here that “1978 Bakke decision resurrected in ruling.” In related news, you can access here an article headlined “Supporters of affirmative action are pleasantly surprised” and here an article headlined “Some colleges must adjust procedures.” An editorial is entitled “Back to Bakke.” In other news, ” case for family; Law firm driven to rein in associates’ workload.” And an op-ed by Joan Venocchi is entitled “Abortion issue sharpens for ’04.”

In USA Today, Joan Biskupic reports here that “Court upholds use of race in university admissions; But justices ban use of automatic points in rating applicants” and here that “Requirement for library porn filters upheld; Court: Federal aid can set conditions.” An article about yesterday’s racial preferences rulings reports on “What happens next? Questions and answers on issue.” An editorial is entitled “Supreme Court bolsters vital goal of campus diversity.” An op-ed by Clint Bolick is entitled “Racial gap will widen.” And an editorial is entitled “Privacy bookmark.”

In The Washington Times, Frank J. Murray reports that “Split decision for choice-by race.” In related news, you can access here an article headlined “More lawsuits likely on affirmative action”; here “Race case ruling a ‘victory’ for firms”; and here “Area educators call solution pragmatic.” And in other news, “Librarians decry filter ruling.”

In The Christian Science Monitor, Warren Richey reports here that “Race in admissions revised; Supreme Court does not ban use of race by universities, but says it must be limited” and here that “High court OK’s Internet filters for public libraries; The decision adds latitude for shielding kids from porn, but curbs some speech.” And here’s a report entitled “Evolution of affirmative action.”

Finally for now, The Wall Street Journal contains an editorial entitled “Supreme Court Quotas: Justice O’Connor provides the fifth vote for racial preferences.”

Posted at 06:00 by Howard Bashman

“A Resounding Victory For Diversity on Campus”: Lee C. Bollinger has this op-ed in Tuesday’s edition of The Washington Post. Also there, George F. Will has an op-ed entitled “Crude Remedy for A Disappearing Problem.”

The Associated Press reports here that “Affirmative Action Still Has Uneasy Place.” Newsday reports here that “Enthused Educators Affirm Their Action.” And Monday’s edition of The NewsHour with Jim Lehrer contained a lengthy discussion of the rulings.

The Houston Chronicle reports here that “UT to reintroduce race-based criteria; President wants cap on ‘top 10 percent’ students.” And The Dallas Morning News reports here that “Ruling to shake up admissions in Texas.”

Posted at 00:26 by Howard Bashman

“Insurers welcome Nazi-era ruling”: The Financial Times has this report.

Posted at 00:25 by Howard Bashman

A new record for visits on a single day: Yesterday the Bravenet hit counter here at “How Appealing” recorded a total of 25,708 page visits, and it was off-line for one and a half hours yesterday afternoon. The previous one-day record for this site was 14,882 visits on June 16, 2003.

Posted at 00:21 by Howard Bashman

Available online at law.com: Tony Mauro reports that “High Court Upholds Admissions Policy at Michigan Law School.” Jonathan Groner reports that “Supreme Court Orders Libraries to Filter Internet Porn.” And in other news, “‘Green Tree’ Ruling Gives Arbitrators Clout in Class Actions.”

In the latest issue of Legal Times (free registration required), Jonathan Groner reports that “New Challenge Expected by Hill Shooter; Ruling could reopen question of Weston’s forced medication.” Tony Mauro has an article headlined “Does U.S. Trump States in Pesticide Cases? Supreme Court will decide whether to take cases testing federal pre-emption of tort lawsuits filed in state courts.” In commentary, Ryan E. Long has an essay entitled “Big Foot, Big Mouth; Nike’s free speech claim is just an argument for false advertising.” And Adam H. Morse has an essay entitled “Still Awash in Cash: The high court’s decision in FEC v. Beaumont plugs one campaign finance loophole, but others remain open.”

Posted at 22:18 by Howard Bashman

Five to go: The five argued cases in which the Supreme Court of the United States is expected to announce rulings on Thursday, June 26, 2003 are:

1. Wiggins v. Smith, to what degree must defense counsel in a death penalty case investigate mitigating evidence, perhaps entitling the defendant to a sentence other than death, to be effective (oral argument transcript here).

2. Lawrence v. Texas, presenting a constitutional challenge to a state law prohibiting homosexual sodomy (oral argument transcript here).

3. Stogner v. California, may a State eliminate the statute of limitations applicable to a crime without running afoul of the constitutional rights of those offenders whose prosecution would otherwise be time-barred (oral argument transcript here).

4. Nike, Inc. v. Kasky, should the “commercial speech” doctrine continue to exist under the First Amendment, and if so was it properly applied here (oral argument transcript here).

5. Georgia v. Ashcroft, a redistricting challenge that could become moot at any moment depending on how the Supreme Court of Georgia rules in a companion case (oral argument transcript here).

Of those five cases, the one that may offer a surprising intellectual feast (yes, I’m borrowing a phrase from former D.C. Circuit Judge Robert H. Bork) is the Stogner case. I just hope that the Justices most likely to provide me with that intellectual feast aren’t too distracted by their dissenting opinions in the Lawrence case to do so.

Posted at 22:04 by Howard Bashman

“Schmiberties”: Over at the newly-redesigned blog “The Neal Pollack Invasion,” you can find this post about some recent developments in the law.

Posted at 21:55 by Howard Bashman

Porn filter: Fresh from a visit to a strip joint in Vegas, the ringleader of “The Academy” blog writes a post about her porn filter.

Posted at 21:46 by Howard Bashman

Justice Sandra Day O’Connor was not the only Arizonan looking far into the future today: A reader emails:

I am a rising 2L at Georgetown Law, an intern with a U.S. circuit court of appeals, and an avid fan of your blog.

I’m not sure whether you’re actually interested in hearing about every picky little error to issue from the Supreme Court, but I found one in United States v. American Library Assoc., and in the search for minor typos in today’s affirmative action rulings, I didn’t want that other opinion to feel left out.

In footnote 2, p. 6, the plurality opinion cites to Dole, 830 U.S. at 210. I thought 830 sounded rather high–we’re not that close to U.S.2d yet!–and indeed, South Dakota v. Dole is at 483 U.S. 203.

Thanks for all your efforts in creating one of the most entertaining, interesting, and useful legal sites out there.

Well, it’s reassuring to see that even the Supreme Court of the United States is capable of transposing the digits in the volume number of a cited case.

Posted at 21:35 by Howard Bashman

From this evening’s edition of NPR‘s All Things Considered: Nina Totenberg reports that “Affirmative Action Upheld with Limits” (nine minutes); Larry Abramson reports that “Supreme Court Backs Library Internet-Porn Filters” (four and a half minutes); and here’s a report entitled “High Court Rules Against Holocaust Restitution Law” (four and a half minutes). Real Player is required to hear these audio clips.

Posted at 21:15 by Howard Bashman

A look at the impact of today’s affirmative action in university admissions rulings on Texas and California: The Associated Press reports here that “University of Texas starts work on new admissions policies” and here that “Supreme Court ruling no direct impact in California.”

Posted at 21:13 by Howard Bashman

Justice David H. Souter seems to channel Ninth Circuit Judge Alex Kozinski: “[A]fter extended dickering President Clinton put his weight behind two specific measures toward that end,” Justice David H. Souter wrote on page 6 of his opinion for the Court today in American Ins. Assn. v. Garamendi. The use of a couple of words in that sentence reminded me of a particular federal appellate judge who sometimes appears to have a difficult time passing up a chance to take a seemingly gratuitous swipe at a certain former President.

Posted at 20:11 by Howard Bashman

“Dems: Stakes High if Bush Reshapes Court”: The Associated Press has this report.

Posted at 19:50 by Howard Bashman

“Sandra Day Prufrock’s maddeningly wrong opinion.” Dahlia Lithwick, with viper’s tongue intact, delivers the goods here (scroll down to the final post) at Slate.

Posted at 19:45 by Howard Bashman

Available online at The New York Times: Linda Greenhouse reports that “Supreme Court Splits on Diversity Efforts at University of Michigan.” And Neil A. Lewis reports that “Race Rulings May Affect Prospects for a Likely Nominee.”

Posted at 19:41 by Howard Bashman

“In Split Decision, Court Backs Affirmative Action; Justices Limit How Much a Factor Race Can Play in Admissions”: Charles Lane has this report online at The Washington Post.

Posted at 19:39 by Howard Bashman

“Anticlimactic Action: Does the Court give us the law we want?” Jeff Taylor has this interesting essay online at Reason.

Posted at 17:21 by Howard Bashman

“Hatch faces tough task on asbestos trust” Tomorrow’s issue of The Financial Times will contain this report.

Posted at 17:18 by Howard Bashman

“Upholding the Status Quo: While both sides are claiming victory, the Supreme Court’s latest rulings have done little to end the legal uncertainty over race-based university admissions” Newsweek offers this article as a “Web exclusive.”

Posted at 17:13 by Howard Bashman

“Questions and Answers on Web Filtering”: Available online and unfiltered from The AP.

Posted at 17:07 by Howard Bashman

NPR‘s Nina Totenberg reports on this morning’s racial preferences in university admissions rulings: You can listen here (Real Player required).

Posted at 17:02 by Howard Bashman

“Affirmative action survives close Supreme Court vote”: The Independent (UK) offers this report.

Posted at 16:57 by Howard Bashman

“Justices Pen Widely Varied Mich. Opinions”: The Associated Press has this report.

Posted at 16:52 by Howard Bashman

A look twenty-five years into the future: A reader emails:

Thanks again for your excellent updates on today’s activities at the Court. (You reprinted my speculations on the outcomes of the cases back in April, after the argument; I turned out to be wrong about the undergraduate case, although I did get the outcome of the law school case right). As I mentioned then, I worked at the Court a few years ago in the Administrative Office to the Chief Justice. One of my old friends at the PIO emailed a PDF copy of the opinion just after 10 today, so I’ve had a chance to read it. I wondered if you or your readers would help settle a debate among some of the 3Ls at Harvard Law.

For us, the most surprising part of today’s rulings is the following flourish in the penultimate paragraph of Justice O’Connor’s majority opinion in the law school cases:

“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Slip op. at 31.

A group of HLS students is bitterly divided: is this conclusion a holding, binding upon the Courts of Appeals?

Those who think not note that the Court has used the term “expect,” indicating that the Court is merely speculating as to a future state of affairs. Such conjecture, they argue, cannot be the basis of a constitutional holding. Instead, the Courts of Appeals will have to weigh those expectations against the facts found in future cases, and will be free to hold as they see fit on the basis of the other principles in the opinion.

Others argue that it is not for the Courts of Appeals to decide when a proposition receiving five votes is harmless dicta and when it is binding. Although law students routinely consider “dicta” that part of an opinion not necessary to render the judgment, of course many important constitutional principles were rendered thusly.

These students argue that this rule is a holding, binding on the Courts of Appeals. They point out that Justice Thomas has, in a bit of gamesmanship, characterized the sentence as a “holding.” Slip op. at 2 (Opinion of Thomas, J., concurring in part and dissenting in part). They also note that the five Justices in the majority have not responded to that characterization, as they easily could have. And none of the Justices casting majority-granting votes concurred in the opinion but only in the judgment with respect to the sentence in question, leaving it without the force of law. This, combined with the fact that the sunset provisions of the Equal Protection Clause are inarguably constitutional principles, makes the 25-year statement a rule of law which Courts of Appeals must apply.

I would be grateful to know what you and your readers think of this very narrow question in a very broad case. Thanks again for your tremendous efforts in keeping those of us (now) away from the Court posted.

Obviously, that sentence from Justice O’Connor’s opinion will mean whatever five or more Justices serving on the Court some twenty-five years from now decide that it means. Coincidentally, Justice Clarence Thomas, who today celebrated his 55th birthday, will then be 80 years old, and some may be speculating in June of 2028 about when his retirement announcement will be forthcoming.

Posted at 16:37 by Howard Bashman

“Supreme Court Throws Case Against Conseco”: The Associated Press provides this report.

Posted at 15:49 by Howard Bashman

“Conservatives Call Affirmative Action Rulings ‘Disgusting’ and ‘Disappointing'”: The Cybercast News Service offers this report.

Posted at 15:28 by Howard Bashman

Applause, anyone: The Associated Press reports here that “Some big businesses applaud high court decision on affirmative action.” And the White House has issued a statement from President Bush headlined “President Applauds Supreme Court Decision.”

Posted at 15:06 by Howard Bashman

What or who is “it”? The nice thing about having such a popular blog (over 20,000 page visits today already, far surpassing the earlier record of 14,000+) is that at least one correspondent is already reading through the Court’s fractured ruling in Green Tree Financial Corp. v. Bazzle.

Justice Stephen G. Breyer’s opinion announcing the judgment of the Court contains a paragraph, which begins on the bottom of page four, carrying over to page five, that states:

Whether Green Tree is right about the contracts themselves presents a disputed issue of contract interpretation. THE CHIEF JUSTICE believes that Green Tree is right; indeed, that Green Tree is so clearly right that we should ignore the fact that state law, not federal law, normally governs such matters, see post, at 1 (STEVENS, J., concurring in judgment and dissenting in part), and reverse the South Carolina Supreme Court outright, see post, at 4-6 (REHNQUIST, C. J., dissenting). THE CHIEF JUSTICE points out that the contracts say that disputes “shall be resolved . . . by one arbitrator selected by us [Green Tree] with consent of you [Green Tree’s customer].” App. to Pet. for Cert. 110a. See post, at 4-5. And it finds that class arbitration is clearly inconsistent with this requirement. After all, class arbitration involves an arbitration, not simply between Green Tree and a named customer, but also between Green Tree and other (represented) customers, all taking place before the arbitrator chosen to arbitrate the initial, named customer’s dispute. [bold emphasis added]

So, who or what is the “it” to which Justice Breyer’s opinion is referring in this paragraph? And does this indicate that Justice Breyer’s opinion began as a dissent?

Posted at 14:44 by Howard Bashman

Enough with today’s rulings in the University of Michigan cases! Just kidding. The Ann Arbor News reports here that “Court splits over U-M admissions.” The Detroit News reports here that “Schools can consider race in admissions, Supreme Court rules; But U-M’s undergraduate point system is rejected.” The Detroit Free Press reports here that “Use of race upheld in U-M admissions, but undergrad policy must be changed” and here that “Michigan students weigh in on Supreme Court ruling.” The Associated Press reports here that “Both sides claim victory in Supreme Court ruling”; here that “Bush Hails ‘Race-Neutral’ Court Ruling”; and here provides “Gov. Jennifer Granholm’s statement on court decision.” The Michigan Daily reports here that “Supreme Court rules on ‘U’ policies; Law School policy upheld, LSA’s partially reversed.” And via The University of Michigan’s Web site comes “Comments from University leaders.”

Posted at 14:21 by Howard Bashman

Online at The Washington Post: Charles Lane reports here that “Supreme Court Upholds Internet Filters” and here that “Court Strikes Down Law for Holocaust Survivors.”

Posted at 14:04 by Howard Bashman

“Supreme Court Declines Immigration Case”: Gina Holland of The Associated Press has this report.

Posted at 14:00 by Howard Bashman

“Race in admissions revised; Supreme Court does not ban use of race by universities, but says it must be limited.” Warren Richey will have this article in tomorrow’s issue of The Christian Science Monitor.

Posted at 13:58 by Howard Bashman

“Supreme Court raises the stakes”: BBC News offers this report.

Posted at 13:57 by Howard Bashman

“Should the Supreme Court decide by consensus?”: Slate offers this “breakfast table” discussion between Walter Dellinger and Dahlia Lithwick (currently in progress).

Posted at 13:52 by Howard Bashman

Some reader mail concerning today’s Grutter v. Bollinger decision: A reader emails:

While lawyers, law students, law clerks and many others across the country are busy sifting through the opinions in Grutter and Gratz to gain some understanding of them, I write with a less lofty but nonetheless important purpose — to draw the Court’s attention (via your website) to a substantively unimportant but mildly annoying misquotation of the brief filed on behalf of military officers. At page 18 of the Court’s opinion, the Court makes reference to the military’s “principle” mission rather than its “principal” mission. Knowing the attention that this specific brief apparently received (as indicated by the reference made to it using Carter Phillips’ name in a question posed at oral argument), I thought it would be particularly embarrassing if the brief contained this common spelling mistake. A quick search of the brief (available here) revealed that the brief contained the correct spelling. The Court — not Greenberg Traurig or Sidley Austin, and certainly not Carter Phillips, who wasn’t even counsel of record on the brief — is to blame. The same search also revealed that the quotation appears on page 5 of the brief, not page 27, as indicated by the Court. I trust that both of these errors will be fixed. Now back to reading the opinions for their content ….

And a reader who has turned into something of Kabbalist speculator emails:

Is O’Connor a Kabbalist too?

Once again, the Supreme Court considers a constitutional issue and comes up with a particular number. Once again, it appears that the Supreme Court is using Kabbalah in order to decide difficult cases.

Kabbalah, as was noted in an April 2003 post on your weblog, “is a form of Jewish mysticism (although lately it has become rather trendy and includes many people who aren’t Jewish). One of the aspects of Kabbalah (known as ‘gematria’) is the belief that the letters of the Hebrew alphabet also serve as numerals and they provide a method of reading novel and unexpected meanings into a text.”

The April 2003 post noted that the Supreme Court’s State Farm Mutual Automobile Insurance Co. v. Campbell opinion could be explained as being based on Kabbalah: “In that case, the Court concluded that the Due Process clause limits punitive damages awards to multipliers of less than 10. The first source of the reader’s puzzlement might be that the Due PROCESS clause would contain such a substantive limitation. The second source of puzzlement might be the fact that Justice Kennedy came up with a particular number. Where, the reader might think to himself or herself, did Justice Kennedy come up with that number? Thousands and thousands of attorneys and judges have been reading this clause for hundreds of years, but nobody has found the number 10 contained in it . . . This helps explain the State Farm opinion. One problem, however, is that unlike Hebrew, English letters do not have a particular numerical value. Justice Kennedy has apparently solved this problem by counting each letter as having the value of one.

How does this explain the opinion? ‘Due process’ has 10 letters. Justice Kennedy concluded that the ‘due process’ clause contains the number 10 when it comes to punitive damages cases. This explains how Justice Kennedy was able to discern a particular number, even though many thousands before him did not.”

The Supreme Court’s Grutter opinion can also be explained by Kabbalah. Where, the reader might ask, did Justice O’Connor come up with the 25 year time limit for affirmative action programs? The easy answer is: “affirmative action programs” has 25 letters.

It is interesting to compare Kennedy’s approach to Kabbalah to O’Connor’s approach to Kabbalah. Kennedy appears to use a text-centered approach to Kabbalistic decisionmaking. That is, he counts the letters in the constitutional text (“Due Process” has 10 letters). O’Connor seems to take a more “facts of the case” approach to Kabbalah. That is, she counts the number of letters in the item being considered (“affirmative action programs” has 25 letters).

This is a potentially very fruitful way of looking at the Court’s decisionmaking–especially if the Court issues more opinions in which it looks at the constitutional text and comes up with particular numbers.

The so-called “time limit” that is the subject of this second email appears on page thirty-one of Justice O’Connor’s opinion for the Court: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Posted at 12:27 by Howard Bashman

Yale Law Professor Jack Balkin comments on today’s University of Michigan rulings: Here, at his blog “Balkinization.”

Posted at 12:26 by Howard Bashman

“Court Passes on Mormon Church Case”: The Associated Press has this report.

Posted at 12:21 by Howard Bashman

Reuters is reporting: U.S. Supreme Court correspondent James Vicini reports here that “Top Court Splits on University Race Preferences”; here that “Top Court Upholds Internet Library Filters”; and here that “Top Court to Decide Reach of Disability Law.” And an article without a byline reports that “High Court Strikes Down Holocaust Insurance Law.”

Posted at 12:17 by Howard Bashman

“Supreme Court Glance”: Here, from The AP.

Posted at 12:10 by Howard Bashman

“Michigan Students React to Court Ruling”: The AP provides this news from Ann Arbor.

Posted at 11:57 by Howard Bashman

“Court Limits Race As Factor in Admissions”: Anne Gearan of The Associated Press now has this more detailed report.

Posted at 11:32 by Howard Bashman

“Supreme Court Takes Local Telecom Case”: The AP has this report.

Posted at 11:16 by Howard Bashman

Decisions yet to be announced: No homosexual sodomy ruling today, and no “commercial speech” ruling either. Stay tuned until Thursday for those.

Posted at 10:54 by Howard Bashman

The Associated Press is reporting from the U.S. Supreme Court: An article reports that “Court Limits Race As Factor in Admissions”; Gina Holland reports that “Court OKs Anti-Porn Filters in Libraries”; and Anne Gearan reports that “Court Rejects Law on Holocaust Insurance.”

Posted at 10:44 by Howard Bashman

Today’s U.S. Supreme Court opinions and orders: The Supreme Court of the United States issued opinions in the following five argued cases today: American Ins. Assn. v. Garamendi (entire decision available here; oral argument transcript here); Green Tree Financial Corp. v. Bazzle (entire decision available here; oral argument transcript here); Grutter v. Bollinger (entire decision available here; oral argument transcript here); Gratz v. Bollinger (entire decision available here; oral argument transcript here); and United States v. American Library Assn., Inc. (entire decision available here; oral argument transcript here). [Note: If you’re having trouble downloading these opinions from the U.S. Supreme Court’s Web site, you may have better luck at this site, provided by The Associated Press.]

You can access today’s Order List at this link. The Court today granted review in three new cases.

The Court has announced that it will next issue opinions on Thursday, June 26, 2003.

Posted at 10:00 by Howard Bashman

“Some campuses find new keys to diversity”: This article appears in today’s edition of The Sacramento Bee.

Posted at 09:45 by Howard Bashman

“U-M cases debated at presidential forum”: The Associated Press has this report.

Posted at 09:40 by Howard Bashman

“U-M ready to respond to justices’ ruling; Decision on admissions cases may come today”: Today’s issue of The Detroit Free Press contains this report.

Posted at 09:37 by Howard Bashman

“Bad Strategy: Why Pryor handcuffs the Dems.” Quin Hillyer today has this essay at National Review Online.

Posted at 09:32 by Howard Bashman

On the agenda: At 10 a.m. eastern daylight time today, the Supreme Court of the United States is scheduled to announce decisions in some or all of the remaining ten argued cases pending before it. You can access my summary of those ten cases here. Stay tuned to learn which decisions the Court issues today.

Posted at 06:55 by Howard Bashman

Elsewhere in Monday’s newspapers: In The Washington Times, Frank J. Murray reports that “Top court reverses all Virginia rulings.” In other news, “Democrats threaten to filibuster nominee.” An article reports that “Fast food next on the menu for lawyers.” From Virginia comes an Associated Press report that “Tech changes programs for minorities before ruling.” Roger Clegg has an op-ed entitled “Michigan verdict forethought,” while Bruce Fein has an op-ed entitled “Shortchanged campaign ruling.”

The Los Angeles Times reports here that “Napster Court Case Pits Label vs. Label; Bertelsmann, sued for allegedly aiding music piracy, says its accusers are partly to blame.” And letters to the editor appear under the headings “Teens’ Scary Artwork: Courts Ignore Rights” and “Proposed Rules on Love Affairs With Students.”

Finally for now, The Boston Globe contains an editorial entitled “Protecting the innocent.” And Cathy Young has an op-ed entitled “Legal arguments weak against gay marriage.”

Posted at 06:45 by Howard Bashman

“High court’s term to end with a flurry”: The Cox News Service offers this report.

Posted at 06:31 by Howard Bashman

In Monday’s newspapers: The Washington Post contains an article headlined “Brown + 50: The Fight Goes On; Elaine Jones’s Latter-Day Battle.” Editorials run under the headings “The Logic of Money” and “Shackling Children.” Courtland Milloy has an essay entitled “Weighing Words On the Scales Of Injustice.” And columnist William Raspberry has an op-ed entitled “Pardoned but Still Disbarred.”

Posted at 00:05 by Howard Bashman

“Beyond the Pale”: That’s how an editorial in tomorrow’s issue of The New York Times describes Eleventh Circuit nominee William H. Pryor, Jr. For a more favorable view, Terence P. Jeffrey has an op-ed entitled “Clear vision of civil rights” in today’s issue of The Washington Times.

Posted at 23:42 by Howard Bashman

“The Senators’ Sons — In Nevada, Reid Is the Name to Know; Members of one lawmaker’s family represent nearly every major industry in their home state. And their clients rely on his goodwill.” Tomorrow’s edition of The Los Angeles Times will also contain this article, the second in a two-part series. A related chart, in PDF format, is available at this link. And you can access part one of the series here.

Posted at 23:42 by Howard Bashman

“Right Wing Objects to Bush Aide as a Justice”: Monday’s issue of The Los Angeles Times will contain this report.

Posted at 23:39 by Howard Bashman

“State officials look to release sex offenders”: And in other news from Minnesota, today’s edition of The Star Tribune contains an article that begins, “For the first time in a decade, Minnesota mental health officials are looking for ways to release into the community some of the 190 sexual psychopaths now locked in state treatment centers.”

Posted at 22:27 by Howard Bashman

“Colleges poised to re-think race policies as ruling looms”: Tomorrow’s edition of The Minneapolis Star Tribune will contain this report.

Posted at 22:25 by Howard Bashman

Available online at The National Law Journal: Marcia Coyle has an article headlined “A cloudy future for forced medication; After the ruling, more litigation?” And here’s an article entitled “Tossing out the clock: States are repealing some statutes of limitations.”

Posted at 22:21 by Howard Bashman

“Rulings expected on gay, diversity, remapping issues”: Monday’s edition of The Atlanta Journal-Constitution will contain this report.

Posted at 21:32 by Howard Bashman

Happy birthday to Justice Clarence Thomas: Tomorrow he turns 55 years old.

Posted at 21:31 by Howard Bashman

“Supreme Court to rule on affirmative action”: The Knight Ridder News Service offers this report.

Posted at 21:30 by Howard Bashman

Right to privacy may confer right to abortion, but right to abortion doesn’t confer right to privacy: This morning’s installment of NPR‘s Weekend Edition-Sunday contained the following segment:

Kansas Law Requires Reporting of Underage Abortion: Doctors who perform abortions on girls under 16 must report the patients to authorities for investigation of possible rape or sexual abuse, a new state attorney general’s opinion says. As Kansas law prohibits sex with a child under 16, pregnancy is evidence of child abuse, state Attorney General Phill Kline says. Hear Kansas Public Radio’s Peter Hancock.

You can listen to the segment online at this link (Real Player required).

Posted at 21:22 by Howard Bashman

“Pryor’s path”: Today’s edition of The Montgomery Advertiser offers this detailed profile of Eleventh Circuit nominee William H. Pryor, Jr. (Via “Southern Appeal.”)

Posted at 20:56 by Howard Bashman

“The Conservative Case for Gay Marriage: Want to foster responsibility and commitment? There is no better way”: Andrew Sullivan has this essay in the June 30, 2003 issue of Time magazine.

Posted at 19:30 by Howard Bashman

Chief Justice Rehnquist, pro and con: Also in the June 30, 2003 issue of Time magazine, two law professors face off concerning whether the impact of Chief Justice William H. Rehnquist’s service on the Supreme Court of the United States should be remembered positively or negatively. John O. McGinnis has an essay entitled “Pro: Rehnquist’s court renewed civic virtues.” And Erwin Chemerinsky has an essay entitled “Con: His tenure curtailed essential freedoms.”

Posted at 19:23 by Howard Bashman

“High court expected to rule on affirmative action; At issue: Whether race may be factor in admissions”: CNN.com has this report.

Posted at 19:22 by Howard Bashman

Error Time: A bunch of readers have emailed to note errors in the Time magazine article I linked to immediately below, entitled “How Rehnquist Changed America.” The following email nicely sums up the errors spotted so far:

The Time Magazine article on the Rehnquist Court contains at least two errors. The writers erroneously state that the 1994 Supreme Court vacancy filled by Justice Breyer was the first confirmation process since the contentious hearings surrounding the nomination of Justice Thomas in 1991. Of course, Justice Ginsburg was confirmed in 1993. Also, Chief Justice Rehnquist was not the “sole dissenter” in Atkins v. Virginia. He was joined by Justices Scalia and Thomas.

You can access a list of U.S. Supreme Court Justices in the order they began serving on the Court at this link, and you can access the decision in Atkins v. Virginia here.

Posted at 19:10 by Howard Bashman

“How Rehnquist Changed America: As speculation builds about new faces on the Supreme Court, a close look at the Chief Justice’s legacy shows the many ways the court has diluted Washington’s power” The June 30, 2003 issue of Time magazine will contain this report.

Posted at 17:17 by Howard Bashman

“They Have a Little List”: The New York Post today contains an editorial that begins, “Three top Senate Democrats have volunteered to serve as a clearing house of sorts for President Bush before he selects someone to fill possible vacancies on the U.S. Supreme Court.”

Posted at 14:12 by Howard Bashman

“Nation’s eyes on affirmative action cases; Top court is about to revisit its ’78 stance on racial quotas”: Today’s edition of The Newark Star-Ledger contains this report. And a related article bears the headline “Jersey colleges say they strive for diversity; Many acknowledge factoring race into their admissions decisions.”

Posted at 14:10 by Howard Bashman

In Sunday’s newspapers: In The Boston Globe, Lyle Denniston reports that “Military may sway court on diversity.”

The Los Angeles Times reports here that “Case Sparks Recruitment Debate Over Race; Some fear that a ruling against affirmative action may cut diversity at military academies.” Relatedly, an article reports that “For Diversity, UC Uses Outreach; Alternatives Tried as Court Considers Affirmative Action.” You can access here an article headlined “In Mexico, Luster Hid in Plain Sight; The fugitive rapist made many friends who would join him for days of surfing and nights of partying in coastal towns.” An op-ed by Anthony Lewis is entitled “An Injudicious Trend; Increasingly, political ideology is tainting court appointments,” and Peter Irons has an op-ed on a related topic entitled “Politics Count, Not Excellence.”

The Washington Times reports here that “Advocates meet to plan Big Mac attack on fat.” In other news, “Cameras put focus on civil liberties.” An op-ed by Lawrence Hunter is entitled “Bring in the cots,” and John Hasnas has an op-ed entitled “Diversity thumbs on the scales.”

Today’s edition of The Washington Post contains an article headlined “In Ohio, a Test for Eminent Domain; Rights vs. Renewal at Stake in Case.” In other news, “Hundreds of Gay Couples Make Their Way to Ontario to Say ‘I Do.'” An op-ed by Charles H. Whitebread is entitled “Jurors Must Be Impartial. They Shouldn’t Be Clueless.” And a letter to the editor appears under the heading “A Better Way to Discipline Lawyers.”

Finally for now, The New York Times contains an article headlined “The Unraveling of an Un-Law Firm.” From Mexico comes an essay about “Bounty Hunting for Fame.” Columnist Frank Rich writes, “Gay Kiss: Business as Usual.” An op-ed by Orlando Patterson is entitled “Affirmative Action: The Sequel.” And letters to the editor of the Magazine section (third item) respond to the recent essay by Jeffrey Rosen entitled “How I Learned to Love Quotas.”

Posted at 11:30 by Howard Bashman

“Verdicts, lawyers under FBI scrutiny; Former leader of trial lawyers says White House strategy to blame”: The Clarion-Ledger today offers this report from Mississippi.

Posted at 11:22 by Howard Bashman

“Courts giving grandparents a big say on visitation, custody issues”: Today’s edition of The Pittsburgh Post-Gazette contains this report.

Posted at 11:20 by Howard Bashman

“Colleges await future of affirmative action”: This article appears in today’s issue of The Cleveland Plain Dealer. And a related item is entitled “Colleges’ admissions criteria often as diverse as candidates themselves.”

Posted at 11:18 by Howard Bashman

“‘Compelling interest’ key in U-M court cases; Expression may apply both in court decision and public focus on it”: Today’s edition of The Ann Arbor News contains this report.

Posted at 11:13 by Howard Bashman

“State court clouds issue on Scouts, gays”: Today’s issue of The San Jose Mercury News contains this essay by columnist Scott Herhold.

Posted at 11:09 by Howard Bashman

“Not Just Black and White: As the Supreme Court prepares to redefine affirmative action for the first time in a quarter century, the class of 1982 looks back at the challenges it has overcome and the obstacles that still remain”: This article appears in the June 30, 2003 issue of Newsweek, where the cover story is entitled “No Sex, Please, We’re Married.”

Posted at 11:07 by Howard Bashman

“Political divide sparks disorder in the courts; 6th Circuit Court’s spats lift veil, and picture isn’t pretty”: Today’s issue of The Cincinnati Enquirer contains this report.

Posted at 08:53 by Howard Bashman

“Is ‘Al Gonzales’ Spanish For ‘Stealth Liberal’?” This article from the June 2003 issue of Texas Monthly is finally available for viewing online, free of charge.

Posted at 00:45 by Howard Bashman

“For Rehnquist Watchers, No Signs of a Retirement”: Charles Lane has this report in Sunday’s edition of The Washington Post. And from a source quite a bit farther away comes an article with the headline “Estrada Pushing Supporters To Pressure Supreme Court.”

Posted at 23:50 by Howard Bashman

Supreme ignorance: The Dayton Business Journal reports here that “Nearly two-thirds of American adults cannot recall the names of any of the nine justices currently serving on the high court, according to a survey from Findlaw.” You can access FindLaw‘s press release here and a chart displaying the results here. Ironically, the Court’s second-longest serving Justice, John Paul Stevens, is also its least well known, identified by only one percent of the respondents in the poll. (No statistics were given for petitioners or amici, sorry.)

Posted at 17:17 by Howard Bashman

“Death-penalty cases can strain state, county budgets”: This article appears in today’s issue of The Kansas City Star.

Posted at 17:08 by Howard Bashman

“Capture of Max Factor heir highlights Mexican extradition policy”: More news from The AP.

Posted at 17:01 by Howard Bashman

“Court Battles Over Gay Marriage Expected”: The Associated Press has this report. And here’s a related item entitled “Summary of Same-Sex Marriage Debates.”

Posted at 17:00 by Howard Bashman

“9/11 Injury Claims Go Federal”: This article appears in today’s edition of Newsday.

Posted at 16:57 by Howard Bashman

“A supreme showdown”: Today’s issue of The Guardian (UK) contains this lengthy article about Gratz v. Bollinger, the case that challenges the University of Michigan‘s use of racial preferences in undergraduate admissions.

Posted at 16:54 by Howard Bashman

“Shops fearful of DEA’s wrath; Pipes and clips are legal, shopowners say; police in no rush to make arrests.” This article appears in today’s issue of The Sacramento Bee.

Posted at 16:52 by Howard Bashman

Random justice: Today’s edition of The Detroit Free Press reports here that “Judge disciplined for coin flip.”

Posted at 16:50 by Howard Bashman

1.5 million served: A some point this weekend, the Bravenet hit counter that records visits to “How Appealing” will pass the one-and-a-half million mark. (You can see it for yourself toward the bottom of the right hand column of this page.) One million five hundred thousand page views since May 6, 2002. Who ever would have expected this level of interest in a blog devoted to appellate litigation? Not me.

Posted at 11:40 by Howard Bashman

In Saturday’s newspapers: In The Los Angeles Times, Henry Weinstein reports that “Hatch to Seek Vote on Judge; The Senate Judiciary chairman rebuffs a move against an L.A. jurist’s nomination.” An article reports that “Appeals Court Upholds Freezing of Islamic Charity’s Assets; The panel finds ‘ample evidence’ linking the Holy Land Foundation to terror group Hamas.” In other news, “Luster Is Seeking Right to Appeal.” An article reports that “3 Filmmakers Are Fined $500 for ‘Bumfights.'” From Kentucky comes a report that “Trial Urged for Suspect in Deadly Army Tent Attack” and a related report that “2 Kuwaitis Initially Suspected in Army Tent Attack; Military officials testify that the interpreters, brought to the camp a day before the grenade assault, were sleeping in command quarters.” And in local news, “Students Assail School’s Move to Kill Article; Newspaper staff at Venice High cries censorship after principal spikes investigative piece on health teacher’s past.”

The Boston Globe reports here that “Kerry vows filibuster to uphold Roe v. Wade.” In other news, “Lodge wins round in smoking battle.” And an article reports that “SJC rules ex-officer not entitled to pay.”

Today’s issue of The New York Times contains an article that addresses the question “If Sanity Is Forced on a Defendant, Who Is on Trial?” An article reports that “Senator Ready to Filibuster Over Views of Court Pick.” Neil A. Lewis reports that “Court Upholds Freeze on Assets of Muslim Group Based in U.S.” In other news, “Court Upholds Tougher Rule on Arsenic Limits in Water.” In sports news, “Court Backs Artist Who Created Print Depicting Woods.” An article reports that “Massachusetts Legislature Repeals Clean Elections Law.” From Kentucky comes news that “Court-Martial Is Backed in Fatal Grenade Attack.” An article reports that “Man in Brooklyn Bridge Plot Spurred Early F.B.I. Interest.” In local news, “Some Say Inquiry Could Lead to Overhaul in Picking Judges.” And an editorial is entitled “A Chilling Reminder.”

The Washington Post reports here that “Judge Approves More Funds for Malvo Defense.” And from Texas comes a very interesting front page article bearing the headline “Pride (and $50) at Steak; Woman Takes a Stab at a 72-Ounce Slab of Sirloin.”

Finally for now, The Washington Times reports here that “Sniper judge grants funding.”

Posted at 11:12 by Howard Bashman

“The Senators’ Sons — A Washington Bouquet: Hire a Lawmaker’s Kid; Stiffer rules are making it harder to direct cash to a congressman. But you can still put his family on the payroll.” Sunday’s edition of The Los Angeles Times will contain this article, the first in a two-part series.

Posted at 11:00 by Howard Bashman

“It’s Unanimous: Will the Court Move Right? It Already Has”: Linda Greenhouse will have this report in the Week in Review section of Sunday’s issue of The New York Times. (Thanks to Rick Hasen for the pointer via email.)

Posted at 10:52 by Howard Bashman

“All Sides Ready for Possible High-Court Fight”: Reuters offers this report. And Anne Gearan of The Associated Press reports here that “Bush May Be Relieved if No Justice Quits.”

Posted at 23:05 by Howard Bashman

Available online at law.com: Tony Mauro’s Courtside column bears the headline “‘Under God’ Underdog?” From Texas comes news that “Defendant at Center of ‘Sleeping Lawyer’ Case Gets Life Sentences.” And Evan P. Schultz has an essay entitled “A Hidden Hope for Fair Use: Does the pro-copyright decision in ‘Eldred’ quietly invite a challenge to the DMCA?”

Posted at 22:37 by Howard Bashman

“Teen Sues Over ‘Lesbian Barbie’ Shirt Ban”: Reuters has this report. Today’s edition of The New York Daily News contains an article entitled “Barbie T-shirt suit; Gay theme got student sent home.” Newsday reports here that “Lesbian Pupil’s Mom Sues City.” And The New York Post reports here that “Teenage Lesbian Suing Ed Dept.”

Given that this legal dispute involves Barbie, it’s regrettable that the lawsuit is pending in a federal trial court in New York, which greatly decreases the chances that Ninth Circuit Judge Alex Kozinski will receive the opportunity to write another Barbie-related judicial opinion arising out of this matter. Undoubtedly, he’d advise the parties “to chill.”

Posted at 22:15 by Howard Bashman

“Gov. Davis urges U.S. Supreme Court to hear Pledge of Allegiance case”: The Associated Press has this news from California.

Posted at 20:55 by Howard Bashman

“Justice Denied at the Source: Considered Guilty Until Proved Innocent”: Columnist Nat Hentoff today has this essay online at the Web site of The Village Voice.

Posted at 19:30 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “Court Upholds Medicare Probe Ruling”; here “High-Profile Sex Offender Arrested Again”; here “Sen. Hatch Removes Link to Porn Web Site”; and here “Bush to Name Acosta to Justice Dept. Post.”

Posted at 19:26 by Howard Bashman

“Kerry to Block Anti-Abortion Court Picks”: The Associated Press reports here that “Democratic presidential candidate John Kerry said Friday that he is prepared to block any Supreme Court nominee who would not uphold the Roe v. Wade decision that legalized abortion.”

Posted at 17:41 by Howard Bashman

Ronnie L. White to become Supreme Court of Missouri‘s Chief Justice: Today’s edition of The Daily Dunklin Democrat provides this report.

Posted at 17:38 by Howard Bashman

“Guilford Man Becomes Federal Judge; Mark R. Kravitz Confirmed By Senate”: Today’s issue of The Guilford Courier contains this report.

Posted at 17:32 by Howard Bashman

“Right on, Sen. Leahy: Seeks bipartisanship on high court nominees”: Wednesday’s edition of The Register-Guard of Eugene, Oregon contained this editorial.

Posted at 16:39 by Howard Bashman

“Rapper Snoop Dogg Gets MTV Comedy Show”: The Associated Press has this report about a television program that’s certain to confound the judiciary of Great Britain.

Posted at 16:27 by Howard Bashman

You too can own a book by Dahlia Lithwick: And let’s not overlook co-author Brandt Goldstein, who attended Yale Law School — “Oooooh, Yale,” as the back cover of the book exclaims.

Thanks to the most wonderful Dahlia, my copy of the book “Me v. Everybody: Absurd Contracts for an Absurd World” arrived via UPS today from the publisher. The book looks great. You can’t look at the book without being put into the mood to laugh, which is a good thing since it’s a humor book. For just $12.95 you too can own this good looking, no doubt very funny, book, which not only contains Dahlia’s signature but also a color photo of her too.

And while it’s true that the book is printed in China, I’m assured that it’s printed in a good part of that country where all workers are paid quite fairly. And even though it’s printed in China, you don’t need to know Chinese to read it. Plus, the book’s Web site also isn’t in Chinese, unless you first run it through Babel Fish.

So, if you’ve missed Dahlia Lithwick’s work as much as I have while she’s been away on pregnancy leave, you’ll have no one to blame but yourself if you don’t pick up a copy of this book. And if you do pick up a copy of this book while inside a store that sells books, be sure to pay for it before taking it home with you.

Posted at 16:05 by Howard Bashman

Seventh Circuit rules that its refusal to allow a nationwide federal court class action involving Ford SUV’s and Firestone tires prohibits state courts from certifying such a nationwide class action: Although it’s only ten pages long, this opinion that Circuit Judge Frank H. Easterbrook issued today on behalf of a unanimous three-judge Seventh Circuit panel will likely have class action experts talking for quite some time.

Posted at 15:32 by Howard Bashman

Binky ban’s back; ravers enraged: Thanks to a journalist from the great State of Texas for emailing to draw my attention to this very interesting ruling that the U.S. Court of Appeals for the Fifth Circuit delivered today. At issue was whether third-parties (here, third-parties who loved to attend rave parties) could challenge the lawfulness of the following special condition contained in a plea agreement that a rave-hosting company had entered into as part of its sentence of conviction on federal drug-related charges:

[The defendant will] take all reasonable steps to prohibit the introduction of infant pacifiers or any objects in the shape of a pacifier, objects that glow, including but not limited to glow sticks and flashing rings, vapor rub products and vapor inhalers, dust masks or masks of any description by any person entering a concert or an event where an admission is charged or at the State Palace Theater.

Hey, had I known that being a raver allowed one to suck on pacifiers and play with glow sticks — oh, nevermind.

Posted at 15:18 by Howard Bashman

Today’s catchy new slogan — “Justice rushed is justice crushed”: Senior Circuit Judge Joseph F. Weis, Jr. today issued an opinion on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit in which he writes:

The only virtue in dismissing the case here was clearing the court’s docket. Although promptness in judicial administration is highly desirable, delay may sometimes be necessary to the mission of doing justice. We are all too often reminded that “justice delayed is justice denied.” But, it is equally true that in some situations “justice rushed is justice crushed.”

A quick search of Westlaw indicates no previous use of the latter slogan. So, delay-favoring lawyers of America, you now have a new rallying cry.

Posted at 15:01 by Howard Bashman

Kentucky’s governor pledges to commute death sentence of convict who murdered at age of 17: Yesterday’s edition of The Lexington Herald-Leader contained an article reporting that “Patton commutes killer’s sentence; Death Row inmate was 17 when he murdered woman.” The Associated Press yesterday reported that “Patton Says He Plans to Commute Sentence of Juvenile Killer.” An article online at The Louisville Channel reports that “Killer’s Spared Life Draws Fire From Victim’s Family; Stanford Family Gets ‘Gift From God.'” Yesterday’s edition of The Courier-Journal reported here that “Stanford’s family celebrates; victim’s sister is repulsed.” And today’s issue of The Cincinnati Enquirer reports here that “Patton’s pardons galvanize Republicans.”

Kevin Stanford was one of two juvenile murderers sentenced to death whose case came before the U.S. Supreme Court back in 1989, when the Court ruled 5-4 that a State does not violate the Eighth Amendment‘s cruel and unusual punishment clause when it executes someone who committed murder at the age of 16 or 17. Stanford’s case made a return visit to the Court recently, and in October 2002 the Court denied, over the dissent of four Justices, Stanford’s application for an original writ of habeas corpus asking the Court to hold that his execution would be unconstitutional because he was under the age of 18 when he committed his offense.

I have previously covered recent developments regarding the imposition of the death penalty on those who commit murder at the age of 16 or 17 in posts you can access here, here, and here.

Posted at 13:52 by Howard Bashman

Don’t mess with success: Tony Mauro’s Courtside column in next week’s edition of The Legal Times will report that Michael A. Newdow plans to continue serve as his own lawyer even if the U.S. Supreme Court agrees to review the Ninth Circuit‘s ruling in the Pledge of Allegiance case. Careful readers of “How Appealing” may recall that the Ninth Circuit had offered to appoint counsel for Newdow, but he turned the court down and ended up winning anyway. While it is out of the ordinary for pro se litigants to argue in the U.S. Supreme Court, it’s not unprecedented. If my recollection is correct, the last time it happened was in the 2001 Term in the case of Christopher v. Harbury (access the oral argument transcript here).

Posted at 13:36 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “Fed Court Declines to Reopen Roe v. Wade”; here “Appeals Court Blocks FEC Records Release”; here “Feds Get OK to Hold Muslim Charity Assets”; here “Ruling: Reno Can’t Be Sued for Elian Raid”; here “Court Upholds EPA Arsenic Rule for Water”; here “Cosmetics Heir Begins 124-Year Sentence”; here “Bill to Reverse FCC Ruling Uncertain”; here “Mass. May Repeal ‘Clean Elections Law'”; here “Texas Lawmakers Question Redistricting”; here “Sniper Suspect Lawyers Request More Funds”; here “Feds: Ohio Terror Suspect Is Cooperating”; here “Fingerprint Database Merge Off Schedule”; and here “Falwell Gets Rights to Web Addresses.”

Posted at 13:11 by Howard Bashman

Dead Kennedys v. Jello Biafra: On Wednesday, the California Court of Appeal, First District, Division Four, issued this not-for-publication opinion. The band’s official Web site is accessible here.

Posted at 11:48 by Howard Bashman

Law Professor Eugene Volokh shares some “lost maxims of equity” that he has uncovered: Available here.

Posted at 11:24 by Howard Bashman

Holy Land Foundation for Relief and Development loses its effort to challenge the U.S. Government’s labeling of it as a “Specially Designated Global Terrorist”: You can access today’s ruling of the U.S. Court of Appeals for the D.C. Circuit at this link. You can access some additional background about the federal government’s action against the organization here (via the White House’s Web site) and here (via the U.S. Department of State’s Web site).

Posted at 10:57 by Howard Bashman

D.C. Circuit strikes down Federal Election Commission regulation under First Amendment: Today the U.S. Court of Appeals for the D.C. Circuit struck down under the First Amendment a Federal Election Commission regulation that requires the FEC to make a “public release of all investigatory file materials not exempted by the Freedom of Information Act” once an FEC investigation concludes. According to the majority opinion, “We hold that the regulation, though not contrary to the plain language of the statute, is nevertheless impermissible because it fails to account for the substantial First Amendment interests implicated in releasing political groups’ strategic documents and other internal materials.”

Circuit Judge Karen LeCraft Henderson issued an opinion concurring in the judgment that contained a least a few bits of levity. For example, her opinion begins, “We are asked in this case, as in so many others, to dance the Chevron two-step * * *.” And later she writes:

Taken to its logical conclusion, the FEC’s argument would render every prohibition in the United States Code susceptible of ambiguity. “Thou shall not kill” is a mandate neither silent nor ambiguous about whether murder is permissible if committed after 5.00 p.m.–or, for that matter, if committed in the billiard room with the candlestick–but the FEC’s reasoning would lead one to conclude otherwise.

There just aren’t enough opinions that refer to the game Clue, in my humble judgment. You can access today’s D.C. Circuit ruling at this link.

Posted at 10:26 by Howard Bashman

Is Tiger Woods “a walking, talking trademark”? No, concludes a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in a very interesting decision issued today that you can access here.

Posted at 10:20 by Howard Bashman

“Gay wedding decision puts heat on U.S.; American homosexuals head north, since no state will marry them”: Today’s edition of The Ottawa Citizen contains this article.

Posted at 10:03 by Howard Bashman

U.S. Senator John Edwards (D-NC) succeeds in effort to slow Boyle: The Senate Judiciary Committee has scheduled a confirmation hearing for Fourth Circuit nominee Allyson K. Duncan to occur on the afternoon of Wednesday, June 25, 2003. Yesterday’s edition of The Charlotte Observer reported the news in an article headlined “Appeals nominee hearing planned; Former N.C. appeals judge would be first black woman in post.”

While this is excellent news for both Duncan and the Fourth Circuit, it also demonstrates the degree to which U.S. Senator John Edwards (D-NC) has succeeded in his effort to derail confirmation of Fourth Circuit nominee Terrence W. Boyle, who currently serves as Chief Judge of the U.S. District Court for the Eastern District of North Carolina. President George W. Bush originally nominated Boyle to the Fourth Circuit on May 7, 2001, and yet more than two years later Boyle hasn’t even received a hearing before the Judiciary Committee.

Why? Because Senator Edwards hasn’t yet returned a so-called “blue slip” indicating whether he approves or disapproves the nomination. Duncan, by contrast, was nominated on April 28, 2003, nearly two full years after Boyle. And her confirmation hearing will occur next week, and she will probably be sitting on the Fourth Circuit before the Judiciary Committee holds a hearing on Boyle’s nomination. Why is one nomination on a fast track and the other on a boat adrift at sea? Because Senator Edwards supports Duncan but for whatever reason doesn’t want to go on record with his position on Boyle.

Posted at 09:51 by Howard Bashman

Top ten reasons to keep an eye on the U.S. Supreme Court next week: The U.S. Supreme Court has ten argued cases in which it has yet to announce rulings and just one week to go in which those decisions are to be announced. You can access my list of the case names and questions presented at this link. The Court will next announce opinions at 10 a.m. on Monday, June 23, 2003; stay tuned to “How Appealing” for full coverage. If anyone needs an eleventh reason to pay attention, here’s one — if any of the Justices decides to retire from the Court this year, that announcement too would be expected to occur next week.

Posted at 09:38 by Howard Bashman

“My Case”: Former University of Michigan president Lee C. Bollinger gets personal about the racial preferences in student admissions cases soon to be decided by the U.S. Supreme Court, in this op-ed found in today’s edition of The Wall Street Journal.

Posted at 09:33 by Howard Bashman

“The Democratic Delay: Democrats attack the Pryor nomination with questions, questions, and more questions.” Byron York has this essay today at National Review Online.

Posted at 09:31 by Howard Bashman

In Friday’s newspapers: The New York Times contains an article headlined “Vacancy or Not, Bracing for Supreme Court Fight.” An article reports that “Ashcroft Calls on News Media to Help Explain Antiterrorism Laws.” In other news, “Trial Date Set for Martha Stewart.” An article reports that “Suit Disputes Integrity of Poland Spring Water.” In entertainment news, “Court Keeps Spike TV Off the Air for Now.” Clyde Haberman’s NYC column today is entitled “Executed at Sundown, 50 Years Ago.” And an editorial is entitled “A Retailer Is Dressed Down.”

Posted at 06:43 by Howard Bashman

In defense of Fifth Circuit nominee Priscilla R. Owen: “The Curmudgeonly Clerk” offers this very interesting post.

Posted at 06:27 by Howard Bashman

Today’s FindLaw columnist: John W. Dean has an essay entitled “White House Counsel Alberto Gonzales’s Texas Execution Memos: How They Reflect on the President, And May Affect Gonzales’s Supreme Court Chances.”

Posted at 06:23 by Howard Bashman

“Court hints at rejection of Ohio gay-rights suit”: Thursday’s edition of The Cleveland Plain Dealer contained this report about a case recently argued before the U.S. Court of Appeals for the Sixth Circuit.

Posted at 00:10 by Howard Bashman

“Judge rigged Michigan case, needs to be indicted”: Thursday’s edition of the Nashville City Paper contained this essay by Joseph Perkins, a columnist for The San Diego Union-Tribune.

Posted at 00:07 by Howard Bashman

Available online at law.com: In news from New York, “Wesley Discusses His Transition; The veteran Court of Appeals judge now sits on 2nd Circuit federal bench.” And Shannon P. Duffy reports that “3rd Circuit Resolves ‘Apprendi’ Issues; Non-jury juvenile adjudication question has split federal courts.” You can access the Third Circuit ruling in question, issued today, at this link.

Posted at 23:29 by Howard Bashman

Available at National Review Online: Edward Blum has an essay entitled “Civil-Rights Showdown: Get ready for the onslaught to come.” Peter N. Kirsanow, a commissioner serving on the U.S. Commission on Civil Rights, has an essay entitled “The Non-Preferred Minority: Michigan, Asians, and Arbitrariness.” And Robert Pambianco has an essay entitled “Suspicious Behavior: The Ninth Circuit lets ex-spies sue the CIA.”

Posted at 23:26 by Howard Bashman

A report on today’s Senate Judiciary Committee business meeting: As predicted, the Senate Judiciary Committee did not vote on the nomination of William H. Pryor, Jr. to serve on the U.S. Court of Appeals for the Eleventh Circuit at today’s business meeting. Indeed, according to this report at the “Southern Appeal” blog, Pryor’s nomination probably won’t receive a committee vote until the second business meeting from now. When precisely will that occur? Too soon to tell, but I’ll post the information here just as soon as it becomes official.

Posted at 23:06 by Howard Bashman

“Free Speech, Inc.”: Lisa J. Danetz of the National Voting Rights Institute has this essay, which TomPaine.com posted online today, about the pending U.S. Supreme Court case of Nike, Inc. v. Kasky.

Posted at 22:49 by Howard Bashman

“Senate Panel OKs Bill on Media Ownership”: The AP offers this news.

Posted at 22:30 by Howard Bashman

“Bush to Tap Kavanaugh for D.C. Court”: The Associated Press provides this report.

Posted at 20:10 by Howard Bashman

“Affirmative action at risk”: Michael Kirkland, UPI Legal Affairs correspondent, today had this news analysis.

Posted at 20:09 by Howard Bashman

Supreme Court shuffle, or not: Friday’s edition of The Christian Science Monitor will contain an article entitled “The great court shuffle that may not come: Despite speculation about high court retirements, continuity may prevail” and an editorial entitled “Supreme Court Checkmate: Justices can’t be foot soldiers in ideological wars.” And tomorrow’s issue of The Financial Times will contain an article entitled “Judges’ names roll out for a job that isn’t there – yet.”

Posted at 20:07 by Howard Bashman

“How Appealing” is featured in tomorrow edition of “Al’s Morning Meeting”: Al Tompkins of The Poynter Institute is the author an email newsletter that goes out each weekday morning to many, many journalists throughout the Nation. In tomorrow morning’s edition of the newsletter, he writes:

Interesting Court Rulings Resource

Al’s Morning Meeting reader Howard J. Bashman, who is both a lawyer and a columnist on legal matters, passed along his interesting and useful site “How Appealing.” The site covers appellate litigation throughout the United States. In just a few minutes trolling around his site, I found a half-dozen story ideas that I will be passing along to you in the days to come.

I’m gratified that so many distinguished professional journalists already visit my site regularly and rely on it as a resource. And I extend a hearty welcome to all journalists visiting for the first time via Friday’s installment of “Al’s Morning Meeting.”

Posted at 19:26 by Howard Bashman

“White House May Consult on Judge Seats”: What a difference a day makes. Jesse J. Holland of The Associated Press has this report.

Posted at 19:19 by Howard Bashman

“Bullied lesbian teacher loses appeal; A lesbian teacher who says she was forced out of her job by homophobic bullying by pupils has lost her House of Lords appeal.” BBC News provides this report. And you can access today’s ruling beginning at this link.

Posted at 19:01 by Howard Bashman

More good news for Janet Reno: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit issued an opinion that begins:

Like our decision in Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003), this case arises from the events surrounding the seizure by federal agents of Elian Gonzalez (“Elian”) from the home of Lazaro, Angela, and Marisleysis Gonzalez (“the Gonzalezes”) on April 22, 2000. In Gonzalez v. Reno, we held that former Attorney General Janet Reno, former Commissioner of the Immigration and Naturalization Service (“INS”) Doris Meissner, and former Deputy Attorney General Eric Holder were entitled to qualified immunity from damages claims by the Gonzalezes because the Gonzalezes failed to establish a causal connection between the supervisory actions of Reno, Meissner, and Holder and the alleged excessive force by the federal agents who forcibly removed Elian Gonzalez from the Gonzalezes’ home on April 22, 2000. Now, we must decide whether former Attorney General Reno is entitled to qualified immunity from damages claims by Donato Dalrymple, who was in the Gonzalezes’ house when Elian was taken, and fifty-one protestors, neighbors, and passers-by who claim they were sprayed with gas, shoved, kicked, and threatened at gunpoint by federal agents during the raid to seize Elian from the Gonzalezes’ home. We conclude that, like the Gonzalezes, these plaintiffs have failed to establish a causal connection between Reno’s supervisory actions and the allegedly unconstitutional acts of the federal agents on the scene.

You can access the complete opinion at this link.

Posted at 18:42 by Howard Bashman

“Slow and Fatal Justice: The case against a Bush court nominee”: Lou Dubose had this essay about Fifth Circuit nominee Priscilla R. Owen in last week’s edition of LA Weekly.

Posted at 18:37 by Howard Bashman

Isn’t that bizarre: Today Circuit Judge J. Michael Luttig issued an opinion on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit that begins:

This case presents the question of first impression before our court of whether a plaintiff can sustain his attack on the constitutionality of congressional district apportionment by alleging that the challenged districts are bizarrely drawn.

Appellant, Robert P. Duckworth, sued various Maryland agencies and officials, appellees, alleging that their enforcement of the state’s 2002 congressional reapportionment statute, Laws of Maryland Chapter 340, violated the one man-one vote principle embodied within Article I, section 2 of the United States Constitution, the First Amendment and the Fourteenth Amendment, by apportioning Anne Arundel County voters into four different bizarrely-drawn congressional districts. The district court dismissed the case for failure to comply with Federal Rule of Civil Procedure 12(b)(6). On appeal, Duckworth does not challenge the dismissal of his Article I, section 2 and his First Amendment claims. He appeals only the district court’s dismissal of his Fourteenth Amendment political gerrymandering claim. Having reviewed Duckworth’s pleadings, we too conclude that he failed to state a valid claim, and so, for the reasons given below, we affirm the judgment of the district court.

You can access the entire opinion here.

Posted at 17:58 by Howard Bashman

Welcome to the age of zero tolerance: A unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit today issued a decision that begins:

In this civil rights action brought pursuant to 42 U.S.C. sec. 1983, S.G., father of A.G., a kindergarten student in the Sayreville, New Jersey Public School System, claims that the Sayreville Board of Education, the Superintendent of Schools and the principal of the school that A.G. attended (jointly referred to as “School Defendants”) violated A.G.’s constitutional rights to freedom of speech, procedural due process and equal protection by suspending him from school for uttering the statement “I’m going to shoot you” to his friends while they were playing at recess in the school yard. The District Court granted summary judgment in favor of the School Defendants. This appeal followed.

The Third Circuit affirmed the grant of summary judgment in favor of the defendants in an opinion you can access here.

Posted at 17:53 by Howard Bashman

In Louisiana, the times they are a-changin’: Today’s edition of The Times-Picayune reports here that “House passes public sex ban 100-0; Gov. Foster now has the final say on bill.” (Via “Obscure Store“; this post’s title courtesy of Bob Dylan.)

Posted at 17:38 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “Killer With Sleeping Lawyer Pleads Guilty”; here “Max Factor Heir Luster Returns to Calif.”; here “U.S. Gays Get Marriage Licenses in Canada”; here “Ohio Trucker Pleads Guilty in Terror Case”; here “Cities Want Slavery Ties Exposed”; here “Union Sues to Block Contracting Rules”; and here “Ex-College President Sentenced for Pot.”

Posted at 17:29 by Howard Bashman

“Court Restricts Input on Campaign Finance”: The Associated Press has this news from the U.S. Supreme Court. And you can see today’s order setting page limits at this link.

Posted at 17:20 by Howard Bashman

More to come a bit later: Today the Atlanta Braves are in town for an early afternoon baseball game against the Philadelphia Phillies. And my son recently wrapped-up his second grade studies and is still a few days away from starting summer camp. So you can probably guess where we’ll be this afternoon (go Braves!). I’ll be back later to wrap-up any interesting events that happen while I’m away. Update: Mike Hampton and the Braves held the Phillies hitless through seven full innings, but neither a no-hitter nor a win was in the cards for the Braves, as this recap, entitled “Phillies foil Hampton’s bid, Braves’ lead,” explains. At least it didn’t rain very much during the game, and the sun even came out for a little while.

Posted at 11:21 by Howard Bashman

Does a special prosecutor in a criminal case who simultaneously serves as contingent-fee counsel for the victim in a lawsuit for damages against the same defendant have absolute prosecutorial immunity in a later civil rights action brought by the defendant? A divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit appears to split three ways on the question in this opinion issued today.

Posted at 10:02 by Howard Bashman

“The recall – a minefield in California election law”: Law Professor Rick Hasen of the “Election Law” blog has this editorial in today’s edition of The San Diego Union-Tribune.

Posted at 09:49 by Howard Bashman

“Appeals court upholds BellSouth lawyer disqualification”: Today’s edition of The Atlanta Journal-Constitution contains this report. You can access my coverage of the ruling at this link.

Posted at 09:39 by Howard Bashman

“Bush should take middle road for Supreme Court”: Susan Estrich offers this advice.

Posted at 09:36 by Howard Bashman

“Most Americans Want to Know Supreme Court Nominees’ Views On Abortion”: ABC News has the poll results here.

Posted at 09:30 by Howard Bashman

Elsewhere in Thursday’s newspapers: In The Los Angeles Times, David G. Savage reports that “Bush Spurns Proposal on Court Picks; White House rejects Democrats’ offer to consult on Supreme Court nominations.” From California comes news that “Judges in Boy Scouts Could Face Conflict; Court warns about cases involving gays, who are barred by the group.” An article reports that “Fugitive Rapist Is Captured in Mexico; Bounty hunters chase down Andrew Luster, who fled during a break in his trial in Ventura County.” In related news, “‘Dog’ Known for Fetching Fugitives.” An article reports that “U.S. Violates Laws in Handling of Refugee Kids, Group Says; Youngsters, a majority of them teens, are held in jailhouse conditions, Amnesty International charges. Government pledges reform.” In seemingly related news, “Plight of Juveniles at Men’s Jail Spurs Criticism; Those Considered the Most Dangerous of Underage Offenders Are More Confined Than Death Row Inmates.” An article reports that “Texas Republicans Take New Shot at Redistricting.” In other news, “Strip Club Law Stalls; Council sends proposed ban on lap dancing back to committee for further study after colorful testimony from strippers and owners.” You can access here an article headlined “Erotica goes mainstream: When Erotica LA holds its annual convention this weekend, it will offer special programs to couples and women.” In other local news, “Making a Federal Case of an O.C. Pipe Bomb: Legal experts say the Patriot Act charges against two brothers after a blast inside a car reflect a kind of legal vigilance since Sept. 11.” An op-ed by Ronald Radosh is entitled “They Clearly Were Traitors: The Rosenbergs stole major U.S. secrets. The left should stop trying to make them martyrs.” And a letter to the editor runs under the heading “Unocal in Myanmar.”

Today’s edition of The Boston Globe contains a Bloomberg News report headlined “Microsoft targets Mass. bids for curbs; Asks court to reject call for restrictions.” And in other news, “‘Lucky’ fish no help for defendant.”

Finally for now, USA Today contains an editorial entitled “Racism: Past and present.”

Posted at 09:23 by Howard Bashman

“Schumer and Bush administration stand by judicial nominee”: The Associated Press has this report. Today’s edition of The New York Post, meanwhile, reports that “Irizarry OK With Chuck, But Not Bar.”

Posted at 09:09 by Howard Bashman

D.C. Circuit calculus: Today’s edition of The Washington Post reports here that “President Bush plans to nominate White House lawyer Brett M. Kavanaugh, an author of independent counsel Kenneth W. Starr’s report on President Bill Clinton, for a seat on the U.S. Court of Appeals for the District of Columbia Circuit, Republican sources said yesterday.” As the article goes on to explain, “The D.C. Circuit court has openings on its 11th and 12th seats. Republicans blocked Clinton from filling at least one of them by arguing that additional judges were not needed.” In fact, the D.C. Circuit currently has three vacancies and one pending nominee, Miguel A. Estrada.

The challenge facing the White House is that if it nominates someone to the D.C. Circuit whom the Democratic leadership views as more acceptable than Estrada, that nominee will be confirmed, and Estrada — whose nomination occurred more than two years ago and is now the subject of a filibuster — will be left behind, holding a nomination to a seat that in the recent past Republicans have said did not need to be filled. So, if the White House indeed does nominate individuals to the eleventh and twelfth seats on the D.C. Circuit, we are likely to receive answers to the trivia question “Which D.C. Circuit nominees does the White House believe the Democratic leadership will find even more unpalatable than Miguel A. Estrada?” Anything else would represent a clear sign from the White House that the Estrada filibuster battle cannot be won and is no longer worth fighting.

Posted at 07:21 by Howard Bashman

“Microsoft Defends Gov’t Antitrust Deal”: The AP offers this report.

Posted at 07:09 by Howard Bashman

“Prosecutor says Flynts violated deal, could be tried”: The Associated Press provides this report from Cincinnati.

Posted at 06:51 by Howard Bashman

In Thursday’s newspapers: The Washington Times reports here that “Hispanics tune out Estrada filibuster.” Frank J. Murray reports here that “Gay activists caution against ‘marriage’ trips to Canada.” From Maryland comes news that “Reaction mixed to ban on toy guns.” And an article reports that “Chief Moose gives up job for book on sniper killings.”

The Washington Post reports here that “Hispanics Declared Largest Minority; Blacks Overtaken In Census Update.” From Los Angeles comes news that “Fugitive Rapist Is Captured; Max Factor Heir Had Fled to Mexico.” An article reports that “Moose Quits As Chief in Ethics Flap; Head of Montgomery Police Won’t Drop Sniper Book Deal.” You can access here “Praise and Criticism For Moose’s Tenure.” And an article reports that “Bush Taps Md. Lawyer For Judgeship.”

The New York Times reports here that “U.S. Gays Who Marry in Canada Face Hurdles.” A news analysis is headlined “Gay Marriage Plan: Sign of Sweeping Change in Canada.” And a related editorial is entitled “Canada’s Celebration of Marriage.” In other news, “False Terrorism Tips to F.B.I. Uproot the Lives of Suspects.” An article reports that “Study Says Government Improperly Detained Foreign Children.” From Mexico City comes news that “Fugitive and Heir to Cosmetics Fortune Is Captured in Mexico.” In local news, “Waterbury Ex-Mayor Now Fights State Sex Case.” An editorial is entitled “Remembering the Rosenbergs.” And columnist Bob Herbert has an op-ed from Tulia, Texas entitled “A Good Day.”

Today’s edition of The Christian Science Monitor contains an article headlined “Who’ll defend the detainees?”

Finally for now, John Fund’s Political Diary at OpinionJournal is entitled “Secrets of the Senate: A bipartisan proposal would make the body more open.”

Posted at 06:11 by Howard Bashman

U.S. Supreme Court round-up for Monday, June 16, 2003: The Supreme Court of the United States issued four opinions in argued cases on Monday, leaving ten argued cases in which decisions have yet to be announced with one week officially left on the calendar. Then, the Justices will be free to ride off into the sunset, tour the country from the comfort of Justice Clarence Thomas’s bus, or hit the road for Europe and the lucrative teaching contracts offered there each summer. Because decisions in nearly all of the Term’s blockbuster cases remain to be announced, I can’t help but think that I’m not the only one focusing on the work of the Nation’s highest Court at this late hour. And now, on to the summaries.

1. One of the unfortunate consequences of a sentence of incarceration for having committed a criminal offense is that the convict cannot visit with his or her friends and family whenever he or she would like. Indeed, someone in prison won’t be receiving any visitors unless the prison decides to let the visitors inside the facility and then brings the prisoner to see them. The State of Michigan was having problems both with prison inmates who were using illegal drugs behind bars and with young children who weren’t behaving properly during prison visits. As a result, Michigan’s Department of Corrections adopted regulations that allowed only attorneys and clergy members to visit those inmates who had two drug abuse violations. Two years after that penalty was imposed, however, the inmate could apply for reinstatement of normal visitation privileges. Also under these regulations, children could not visit unless they were the child, stepchild, grandchild, or sibling of the inmate, and child visitors had to be accompanied by a family member or legal guardian.

Inmates confined in the Michigan state prison system filed suit in a federal trial court to challenge the constitutionality of these restrictions. The prisoners asserted both that the restrictions impermissibly infringed on their constitutional right of free association and that the restrictions constituted cruel and unusual punishment. Both the trial court and the U.S. Court of Appeals for the Sixth Circuit agreed (access the Sixth Circuit’s opinion here), and those courts accordingly invalidated the regulations as unlawful.

On Monday, the U.S. Supreme Court, in Overton v. Bazzetta, No. 02-94 (U.S. June 16, 2003), unanimously disagreed with both lower courts. Justice Anthony M. Kennedy wrote the opinion of the Court on behalf of himself and six other Justices. Justice Kennedy’s opinion explains the obvious point that confinement in prison, by its very nature, prohibits the inmate from associating freely with others. The majority concluded that the challenged regulations bore a reasonable relationship with the legitimate penological interests that they were intended to further. That conclusion prevented the inmates from succeeding on their freedom of association claim. On the cruel and unusual punishment point, the Court found that the challenged deprivation was neither of a severity nor of a duration sufficient to implicate the Eighth Amendment. Justice John Paul Stevens wrote a concurring opinion, in which Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer joined. These four Justices had joined in Justice Kennedy’s majority opinion, so the point of Justice Stevens’ concurrence was simply to remind the reader that these four Justices in an appropriate case would give prisoners more rights than the other three Justices in today’s majority.

Justice Clarence Thomas wrote an opinion concurring in the judgment, in which Justice Antonin Scalia joined, that proved quite interesting right up to its surprisingly abrupt conclusion. Most of Justice Thomas’s opinion consists of a review of the history of criminal punishment in the United States. For example, did you know that when the United States was a new nation, the public whipping of convicts — rather than incarceration in a prison — was the primary form of punishment? As society became more mobile, however, the value of public shaming lessened, and modern-day penitentiaries began to arise. But, historically, being in prison carried with it no right to visitation. Accordingly, Justice Thomas concluded, the free association claim fails. And because depriving a prisoner of visitation privileges is not “punishment” as that term is understood for purposes of the Eighth Amendment, the prisoners’ claims under that constitutional provision likewise failed.

2. A former dentist by the name of Charles Thomas Sell seems to prefer incarceration in a prison hospital ward to receiving antipsychotic medication that would enable the federal government to bring to trial against him several serious criminal charges. Apparently where he is located the visitation policy isn’t all that bad, and certainly what he is experiencing is far preferable to receiving a public whipping. Indeed, loss of visitation privileges for using drugs isn’t a punishment that Sell is likely to face, because he is not someone who enjoys taking drugs. Sell refuses to allow the prison’s doctors to administer to him the medication that would enable his mental illness to be controlled and the federal criminal charges against him to be resolved on the merits.

In Sell v. United States, No. 02-5664 (U.S. June 16, 2003), the Court examined the circumstances under which it is proper to order a mentally ill criminal defendant forcibly medicated so that criminal charges against him could go to trial. First, however, it was necessary to resolve whether the trial court’s decision ordering that medication be administered against the inmate’s will was a final, appealable order. Justice Breyer wrote the majority opinion, in which Chief Justice William H. Rehnquist and Justices Stevens, Kennedy, Souter, and Ginsburg joined. Justice Breyer first concluded that the order was an appealable collateral order, because once the drugs were administered, the inmate had lost the right to bodily integrity that he was seeking to vindicate. Then, on the question of when it’s proper to order an inmate forcibly medicated in order to allow the trial of criminal charges against him or her, Justice Breyer set forth an intricately detailed balancing test that it would be worthwhile explaining only if a large number of people existed who were not only mentally ill and drug averse but also who preferred incarceration to trial. But, while there may be more than just one person like Sell — the fellow who shot up the U.S. Capitol comes to mind — there aren’t enough to merit a detailed exegesis of the characteristically complex multi-part Justice Breyer test.

Justice Scalia wrote a dissenting opinion, in which Justices Sandra Day O’Connor and Thomas joined. Justice Scalia was of the view that the order in question did not qualify for immediate appeal as a collateral order, and therefore he would have required Sell to go forward with the trial before challenging the order to medicate on appeal from any resulting conviction. Justice Scalia doesn’t appear to hold the collateral order doctrine in high regard generally, and he trots out a proverbial parade of horribles about why allowing a collateral order appeal here will cause the Nation’s entire federal criminal justice system to grind to an unceremonious halt.

3. To combat drug dealing and other crime in a low-income housing development, the City of Richmond, Virginia’s Housing Authority adopted an anti-loitering policy. Under the policy, someone who is found to be loitering there, after receiving a notice of loitering, will be subject to arrest if he or she visits again. Kevin Lamont Hicks had received a notice not to return, and was arrested and convicted under Virginia’s trespassing law. He then challenged the law as violative of his First Amendment speech rights, and the Supreme Court of Virginia ultimately agreed. The holding was a bit odd because Hicks wasn’t seeking to exercise his free speech rights in visiting the development in question.

On Monday, in Virginia v. Hicks, No. 02-371 (U.S. June 16, 2003), the U.S. Supreme Court unanimously ruled that the Supreme Court of Virginia erred in sustaining a First Amendment overbreadth challenge to the development’s policy. The key consideration was that the regulation in question was not targeted at speech, and it applied regardless of whether a trespasser was seeking to return to engage in protected speech or not. The plainly legitimate sweep of the law in question, Justice Scalia’s majority opinion explained, was so broad that the Virginia court erred in striking down the law. Justice Souter filed a concurring opinion, in which Justice Breyer joined, to observe that the two values being compared in this case were properly evaluated, but a different case might justify a different method of comparison.

4. The Court’s fourth and final decision Monday came in Federal Election Comm’n v. Beaumont, No. 02-403 (U.S. June 16, 2003). The Court held, by a vote of 7-2, that Congress lawfully could prohibit nonprofit advocacy corporations from making direct political contributions in federal elections. For more about what this means, I leave you in the good hands of the “Election Law” blog, which examines the ruling in detail here.

This case arose from the U.S. Court of Appeals for the Fourth Circuit, and you can see its ruling here. Justice Souter’s majority opinion mentions several times that the only Fourth Circuit judge to recognize the correct outcome below was Circuit Judge Roger L. Gregory. Judge Gregory is an interesting story in his own right, because he joined the Fourth Circuit as a Clinton recess appointee. Then, President George W. Bush renominated Judge Gregory, and the U.S. Senate confirmed him to a life-tenured position on the Fourth Circuit, where he remains the first and only African-American judge ever to serve on that court. Unlike another Bush-43 nominee from the south who supposedly has shouted “No more Souters,” Judge Gregory was heard to exclaim after the Court’s ruling in the Beaumont case on Monday, “Yes more Souters.”

Posted at 23:30 by Howard Bashman

“Bush to Choose Ex-Starr Aide; Kavanaugh to Be Nominee For Appeals Court Post”: Tomorrow’s edition of The Washington Post will contain this report concerning another D.C. Circuit nominee in the works, and this news is sure to get people talking. (Thanks to the author of “Southern Appeal” for the heads-up via email.)

Posted at 23:22 by Howard Bashman

“A Blogger’s Big-Fish Fantasy”: Thursday’s edition of The New York Times will contain this article.

Posted at 23:16 by Howard Bashman

“Shirt’s message protected by First Amendment”: The Detroit Free Press has this report.

Posted at 23:08 by Howard Bashman

Supreme Court of Alaska hears challenge to that State’s English-only law: The Anchorage Daily News today provides this report. And The Associated Press offers this report on yesterday’s appellate oral argument.

Posted at 23:06 by Howard Bashman

“Supreme Court won’t hear drug-test appeal”: Gina Holland of The Associated Press yesterday had this report, which begins “The U.S. Supreme Court refused Monday to hear a second appeal from a South Carolina hospital in a lawsuit over now-illegal hospital drug tests on pregnant women.”

Posted at 23:02 by Howard Bashman

“State judge ride high court track: Opposition Gearing Up For Fight If She’s Nominated For Possible Vacancies”: Monday’s edition of The Mercury News contained this report about California Supreme Court Justice Janice Rogers Brown.

Posted at 22:58 by Howard Bashman

Monday’s edition of The Detroit News contained special coverage of the U.S. Supreme Court‘s upcoming racial preferences rulings: You can access here an article entitled “Society may change course if affirmative action dies; Possible impact: Fewer minority professionals, weaker services”; here “Courts could lose trust, confidence of minorities; Fewer African-American and Hispanic lawyers from top schools feared”; here “Corporate innovation in peril; Fortune 500 companies fear shallow talent pool for top managers”; here “Minority recruiting plans may be scrapped”; here “Poor in danger of losing doctors; Many minorities choose to serve needy in order to give back to their communities”; here “Cohesiveness of ranks at risk; Before affirmative action, lack of minority officers caused polarization”; here “Native Americans fear less legal help from their peers; Reservations need professionals most at time of change”; and here “Road to Supreme Court.”

This past Sunday’s newspaper, meanwhile, contained an article entitled “Diversity efforts in peril; Critics would use Supreme Court decision to try to unravel affirmative action initiatives.”

Posted at 22:50 by Howard Bashman

“W. House Rebuffs Democrats on Supreme Court Nominees”: This article is available online from Reuters.

Posted at 22:45 by Howard Bashman

“California’s top court limits judges’ membership in Boy Scouts”: David Kravets of The Associated Press has this report.

Posted at 22:44 by Howard Bashman

From this evening’s edition of NPR‘s All Things Considered: This evening’s program contained the following segment:

Court Orders Sacramento to Revamp Sidewalks for Disabled: NPR’s Richard Gonzales reports that the city of Sacramento is embroiled in a bitter dispute over sidewalks and whether they have to be overhauled to accommodate the disabled. Disability rights activists say the city has violated federal law because its sidewalks are full of benches and poles and other obstacles. The Ninth Circuit Court of Appeals has agreed. Sacramento says federal law does not require the city to fix existing walkways. It has appealed for a hearing before the U.S. Supreme Court. Cities around the country are paying close attention.

You can hear the segment online via this link (Real Player required).

Posted at 22:43 by Howard Bashman

Available online at law.com: An article reports that “California Bench Isn’t Banned From Scouts; California Supreme Court says judges should disclose membership.” A report from Florida is headlined “The $710 Million Question: Decertification of class in tobacco case last month leaves unresolved what will happen to giant settlement.” Thanks to Bill Kisliuk for his mention of “How Appealing” in tomorrow’s newsbrief. Finally, Law Professor Peter H. Schuck has an op-ed entitled “Defensible Discrimination: Race or gender preferences may be easier to justify in making high court appointments, but that doesn’t make them right.”

Posted at 22:20 by Howard Bashman

Elsewhere in Wednesday’s newspapers: The Los Angeles Times reports here that “Court Upholds Detainee Secrecy; U.S. was justified in withholding names of foreigners held after Sept. 11, appellate judges rule. Rights groups vow to appeal the decision.” An article reports that “Court Bolsters FCC Area Code Effort; In another setback for wireless carriers, judges’ decision opens the door to cell-phone-specific area codes.” In other news, “New U.S. Guidelines Curb Racial Profiling; The rules are lauded by federal officials, but an ACLU officer calls them ‘toothless.'” An article reports that “Fund-Raiser for Hillary Clinton Gala Probed; Aaron Tonken, who is facing a charge of mail fraud in connection with his charity work, organized a campaign event for her in 2000.” An article from Bloomberg News reports that “Microsoft Settlement With Customers Stalls.” In other news, “Claims Against Abercrombie Detailed; Nine students say they were fired or not hired because they didn’t fit the ‘A&F look.'” Bloomberg News also reports that “Tobacco Companies Not Liable, Jury Says; Verdict in a $9-million suit filed by a Missouri cancer patient is the latest victory for the industry in a series of damages claims.” You can access here an article headlined “The last lap? Dancers say a ban wouldn’t stop sleaze, just freedom of expression.” In local news, “Evidence Barred in Ex-O.C. Judge’s Child-Porn Case; Writings and photos were illegally obtained from Ronald Kline’s computer, court rules.” A front page article is entitled “Poetry as Art and Threat: In an era of school shootings, courts must sometimes decide when students’ creative expression becomes criminal intimidation.” And in op-eds, Paul R. Abramson writes of “No More Amour With UC Faculty? Litigation fears over love affairs with students are at heart of proposed ban,” and Tommy J. Payne has an essay entitled “Addicted to Tobacco: Ban smokes? The thought gives jitters to governments hooked on the revenue.”

In The Boston Globe, Lyle Denniston reports that “Appeals court backs secrecy of terror probe.” In other news, “Canada to draft a law recognizing gay marriages.” An article reports that “Microsoft sues 15 firms over spam.” And an editorial is entitled “Justice detained.”

In The Washington Times, Frank J. Murray reports that “Ruling OKs secrecy in terror detentions.” In other news, “Ashcroft defends Patriot Act in visit.” Attention toy Second Amendment theorists: an article reports that “Annapolis lawmaker puts toy guns in cross hairs.” And an op-ed by Helle Dale is entitled “Still a country of laws.”

Finally for now, USA Today reports here that “Justice Dept. prohibits racial profiling; But agents can use it to identify terrorists.” And a letter to the editor appears under the heading “Shared values don’t justify equal treatment.”

Posted at 20:44 by Howard Bashman

Fact-checking The New York Sun: A reader who works at the U.S. District Court for the Southern District of New York emails:

Not to be nit-picky, but the New York Sun article that you link to (“Schumer, Clinton Block N.Y. Judges; Southern District’s Mukasey Writes the Senior Senator”) contains a not-insignificant error: it refers to Judge Richard Wesley as having been confirmed to the EDNY when in fact he was confirmed to (and today began serving on) the Second Circuit Court of Appeals.

“Mr. Schumer and the White House have found increasing common ground on several nominees. Mr. Schumer has made announcements in recent months that the two parties have reached agreements on the nominations of Dora Irizarry and Richard Wesley to the Eastern District, and Stephen Robinson and Kevin Castel to the Southern District. Of those nominees, only Mr. Wesley has received a hearing in the Judiciary Committee and been confirmed.”

Not that anyone reading your blog was apt to be confused.

I would hope not.

Posted at 17:29 by Howard Bashman

Today’s FindLaw commentators: Sherry F. Colb has an essay entitled “Sending Out Partial Birth Announcements: Symbolism and Deception by Pro-Life Legislators.” And Barton Aronson has an essay entitled “The Supreme Court Rightly Rejects a Free Speech Challenge In Virginia v. Hicks, Which Is, At Heart, a Simple Trespassing Case.”

Posted at 16:31 by Howard Bashman

Federal judicial nomination and confirmation commentary from here and there: Columnist Al Knight has an op-ed entitled “The high cost of congeniality” in today’s edition of The Denver Post. Columnist Ruben Navarrette has an op-ed entitled “Edwards’ gaffe reveals liberals’ condescension” in today’s issue of The Dallas Morning News. And yesterday, The San Francisco Chronicle contained an editorial entitled “Bringing politics to the bench” that opposed the confirmation of Eleventh Circuit nominee William H. Pryor, Jr.

Posted at 15:35 by Howard Bashman

“More innocents die when we don’t have capital punishment”: Columnist Dennis Prager makes the argument here.

Posted at 15:29 by Howard Bashman

Denial of motion to strike notice seeking death penalty in federal criminal prosecution gives rise to an appealable collateral order, divided Fourth Circuit panel rules: Circuit Judge J. Michael Luttig‘s opinion on behalf of himself and Circuit Judge M. Blane Michael begins:

Appellant Ferebe challenges the district court’s denial of his motion to strike and to bar the United States’ Notice of Intention to Seek the Death Penalty (the “Death Notice”) in his trial for the murders of Yolanda Evans and Benjamin Harvey Page, on the grounds that notice was not provided to him a reasonable time before the trial as required by Title 18, section 3593(a) of the United States Code. Ferebe concedes that the district court’s order denying his motion to strike the Death Notice is not a final judgment, and thus is susceptible to our review only if it is a collateral order, subject to review under the standards articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). See Under Seal v. Under Seal, 326 F.3d 479 (4th Cir. 2003) (discussing the collateral order doctrine and its application in the Supreme Court and in the Fourth Circuit). The government contends that the district court’s order was not a collateral order, but that if it was, the Death Notice was provided to Ferebe a reasonable time before trial, because he was not prejudiced by any tardiness in the filing of the Notice.

This case, having been fully briefed in December 2001, has now been presented to, and considered by, two separate panels of our court. Decision of the matter has been made difficult, both for the first panel that heard this case and for our panel, because the issues presented by the appeal — one jurisdictional, one relating to the governing analytical framework, and one involving application of that framework to the facts of the case — are tightly, if not inextricably, interwoven. This interweave, coupled with the diverging opinions of members of our court as to each issue, made attainment of dispositive agreement especially tricky. Today, however, we reach dispositive agreement on the required statutory analysis, and on its implications for the jurisdictional question.

We conclude that the proper analysis that is to be applied in deciding challenges to the timeliness of a filing under the Death Notice statute, 18 U.S.C. sec. 3593(a), is that of a pre-trial inquiry into the objective reasonableness of that timing. Because of the characteristics of orders decided under this analytical framework, we conclude that district court orders denying motions to strike Death Notices are collateral orders susceptible to our review. We are unable conclusively to determine the merits of this case, however, because the district court, operating under a different, and incorrect, analytical framework, did not make certain findings critical to the merits determination with sufficient clarity that we may rely on them in this case of life and death. Consequently, we vacate the appealed order and remand the case for further proceedings in the trial court.

At first glance, no further mention appears to be made in the opinion concerning why the first panel of the Fourth Circuit to consider this case stepped aside, making way for the second panel that issued today’s ruling.

Circuit Judge Paul V. Niemeyer dissented because he did not agree that the order being challenged qualified for immediate appellate review under the collateral order doctrine. You can access the complete decision at this link.

Posted at 15:09 by Howard Bashman

“Hearing slated on U.S. appeals court bid; Approval likely for Raleigh lawyer”: Today’s edition of The News and Observer contains an article that begins, “Raleigh lawyer Allyson Duncan is scheduled to appear next week before the Senate Judiciary Committee for a hearing on her nomination to the U.S. 4th Circuit Court of Appeals.”

Posted at 14:56 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “Underage Kan. Abortions Must Be Reported” and here an article entitled “Court Strikes Down ‘Stealing Love’ Law.” For those interested in the ruling of the Supreme Court of Missouri that yesterday abolished the tort of alienation of affection, it’s available online here.

Posted at 14:13 by Howard Bashman

Force a federal district judge to recuse by hiring his nephew as counsel for the defendant? “Not this time,” says divided Eleventh Circuit panel. Yesterday a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit issued an opinion (posted online today) that begins:

In these consolidated cases, we are called upon to consider the appropriate course of action where a party is accused of contriving to engineer the recusal of a district judge by hiring a close relative of the judge as counsel. Petitioners seek a writ of mandamus compelling the district court to vacate its order disqualifying attorney Terry Price (“Price”) and his law firm, Lehr Middlebrooks Price & Proctor (“LMPP”), from representing BellSouth in a putative class-action race discrimination suit, Jenkins v. BellSouth Corp.

The majority, consisting of Circuit Judge R. Lanier Anderson III (the author of the majority opinion) and Senior Seventh Circuit Judge Richard D. Cudahy, sitting by designation, denied the petition for writ of mandamus seeking to reinstate Price as counsel and recuse Price’s uncle, Chief U.S. District Judge U.W. Clemon of the Northern District of Alabama, concluding that BellSouth failed to show “a clear and indisputable right to relief or demonstrable injustice.”

Judge Cudahy issued a concurring opinion that begins:

I join Judge Anderson’s persuasive opinion, but I write separately in part to emphasize several matters which may be unique to my perspective on the case as a visitor to the Eleventh Circuit.

I find myself in the sensitive position of casting the deciding vote (at least pending possible reconsideration by the full court) in a dispute which, if not unique to the Eleventh Circuit, at least has an unusually substantial and controversial history in a judicial district of this circuit. The very problem presented by the case before us is certainly not new. Terry Price and his relationship to Judge Clemon have been a continuing issue in the Northern District of Alabama. See Robinson v. Boeing, 79 F.3d 1053 (11th Cir. 1996); N.D. Ala. Standing Order (July 12, 1996). With the locally focused nature of the present case in mind, I have some concern about being thought an interloper in a family affair, but, if this is to be my lot, I will do my best to cast my vote under principles of the broadest application.

Circuit Judge Gerald Bard Tjoflat dissented, and his dissenting opinion states at its conclusion:

In this case, petitioners have met their burden of showing a clear and indisputable right to relief. They have shown that Judge Clemon had a duty to recuse under Section 455(b) as soon as Price filed his notice of appearance. Judge Clemon’s duty to recuse under Section 455(b) is not debatable; Congress clearly intended that recusal under this section be mandatory and automatic, without exception. Judge Clemon’s failure to recuse and his decision to reassign the motion to disqualify Price to another judge amounted to a judicial usurpation of power which led to the deprivation of BellSouth’s counsel of choice. Judge Smith’s order disqualifying Price and his law firm was a further usurpation of power because Judge Smith had no authority to consider the motion to disqualify, much less grant it. By granting the motion, Judge Smith deprived BellSouth of its counsel of choice. We should issue the writ of mandamus to correct these violations of Section 455 and the deprivation of BellSouth’s counsel of choice.

You can access this very interesting decision in its entirety (88 pages in PDF format) at this link.

Posted at 13:10 by Howard Bashman

A vote on the nomination of William H. Pryor, Jr. to serve on the Eleventh Circuit is indeed on the agenda for tomorrow morning’s Senate Judiciary Committee business meeting: Under the rules, Senators from either political party have the right to have consideration of the nomination postponed for one week. Typically, controversial federal appellate court nominations such as this one have not gone to a vote in committee the very first time they have appeared on the agenda.

Posted at 12:29 by Howard Bashman

White House Counsel Alberto R. Gonzales and “The Texas Clemency Memos”: This article from the July/August 2003 issue of The Atlantic is now available online here. (Via “Eschaton.”)

Posted at 12:01 by Howard Bashman

“Schumer, Clinton Block N.Y. Judges; Southern District’s Mukasey Writes the Senior Senator”: Today’s edition of The New York Sun contains this front page article. And to see a list of current federal judicial nominees and their “blue slip” status, click here.

Posted at 11:44 by Howard Bashman

“Bush Won’t Consult Dems on High Court”: The Associated Press has this report.

In other news, The AP reports here that “Fugitive Max Factor Heir Caught in Mexico” and here that “N.Y. Judge Quits Over ‘Terrorist’ Remark.”

Posted at 11:28 by Howard Bashman

“The Good, The Bad, and the Blogly”: Thanks to Glenn Harlan Reynolds, of “InstaPundit” fame, for his mention of “How Appealing” in his Tech Central Station column posted today.

Posted at 09:30 by Howard Bashman

The Onion asks “What do you think about FCC media deregulation?” Answers are available here.

Posted at 09:27 by Howard Bashman

“The Senator and the Chief Justice: Mrs. Clinton vs. the majesty of American democracy.” John O. McGinnis had this essay yesterday at National Review Online.

Posted at 09:24 by Howard Bashman

“Wesley formally leaves top court”: The Associated Press offers this news about the individual who will be sworn in later today as the newest member of the U.S. Court of Appeals for the Second Circuit.

Posted at 09:22 by Howard Bashman

“Hatch charges bias over Ala. nominee”: Today’s edition of The Hill contains this report. Also, The Crimson White reports here that “Vote on Pryor could come Thursday.” (Via “Southern Appeal.”)

Posted at 09:14 by Howard Bashman

And this Term’s award for most boring U.S. Supreme Court opinion in an argued case goes to…. “GreenGourd’s Garden” looks at the top three nominations and awards the prize in a post you can access here. My summaries of the cases in question can be found here (first place (fourth item)), here (first runner-up (third item)), and here (second runner-up (fourth item)).

Posted at 07:46 by Howard Bashman

This doesn’t qualify as official publication (although it probably should): As I recently reported in a post you can access here, the federal Judicial Conference’s Standing Committee on rules of court practice and procedure has approved the publication of two significant changes to the Federal Rules of Appellate Procedure. The first is the addition of a brand new rule, and the second involves an important amendment (shown in italics below) to an existing rule:

Rule 32.1. Citation of Judicial Dispositions

(a) Citation Permitted. No prohibition or restriction may be imposed upon the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like, unless that prohibition or restriction is generally imposed upon the citation of all judicial opinions, orders, judgments, or other written dispositions.

(b) Copies Required. A party who cites a judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database must file and serve a copy of that opinion, order, judgment, or other written disposition with the brief or other paper in which it is cited.

Rule 35. En Banc Determination

(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:

(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or

(2) the proceeding involves a question of exceptional importance.

I enthusiastically support the approval of both of these proposed changes (see here, here, and here for detailed explanations of my views).

Posted at 07:15 by Howard Bashman

“Guardian for fetus draws critics”: Today’s edition of The Orlando Sentinel contains this report.

Posted at 07:06 by Howard Bashman

“Landmark DUI ruling challenged”: This report appears in today’s issue of The Atlanta Journal Constitution.

Posted at 07:00 by Howard Bashman

“Gazette’s fate lands on court’s doorstep: Is the publication for renters an ad or a newspaper? Judges hear arguments.” Today’s edition of The Indianapolis Star contains this article.

Posted at 06:58 by Howard Bashman

“Judge: Forgive the case backlog; I’m a perfectionist.” The Associated Press provides this report from Indiana.

Posted at 06:56 by Howard Bashman

Additional coverage of yesterday’s Ninth Circuit oral argument on rehearing en banc in the Unocal case: David Kravets of The Associated Press reports here that “Appeals court reconsiders if Unocal can be sued for atrocities.” In today’s edition of The San Francisco Chronicle, Bob Egelko reports that “Unocal seeks dismissal of Burma suit. Villagers allege murder, rape by soldiers; Bush seeks rollback on litigation rights.” And The Los Angeles Times reports here that “Unocal Hearing Focuses on Liability Standards.”

Posted at 06:55 by Howard Bashman

“Viacom Loses $16.8 Million in ‘Spike TV’ Dispute”: Reuters provides this report.

Posted at 06:46 by Howard Bashman

In Wednesday’s newspapers: In The New York Times, Linda Greenhouse reports that “10 Decisions Remain for Supreme Court.” I recently listed the questions presented in those ten cases in a post you can access here. Neil A. Lewis reports that “Secrecy Is Backed on 9/11 Detainees.” In other news, “Bush Issues Federal Ban on Racial Profiling.” A related item is entitled “How the New Rules Will Work.” From Toronto comes news that “Canadian Leaders Agree to Propose Gay Marriage Law.” An article reports that “Microsoft Sues 15 Organizations in Broad Attack on Spam E-Mail.” In other news, “In Dali Theft at Rikers Island, the 4 Suspects Aren’t Inmates.” From Florida comes news that “At Nude Youth Camp, Skin Is Bare but Lust Is Verboten.” In business news, “Coke Confirms Product Test Was Rigged.” An op-ed by Law Professor Laurence R. Helfer is entitled “Not Leading the World but Following It,” and it begins: “Disparities in the legal treatment of lesbians and gay men in the United States and their treatment in the rest of the world are becoming more pronounced.” And a letter to the editor appears under the heading “Judges and Partisanship.”

In The Washington Post, Charles Lane reports that “High Court Breaks Ground on Overhaul.” An article reports that “Daschle Urges Bush to Consult on High Court Picks.” In other news, “Court Says Detainees’ IDs Can Be Kept Secret; Panel: 9/11 Realities Outweigh Disclosure.” A related editorial is entitled “Indefensible Secrecy.” And columnist Robert J. Samuelson has an op-ed entitled “Affirmative Ambiguity.”

The Christian Science Monitor contains an article entitled “Divorce online: faster, cheaper, and lawyer-free.” And in editorials, “Drugging Defendants: Supreme Court sets limits, but is that enough?” and “Courting Campaign Reform.”

Posted at 06:38 by Howard Bashman

“Courts may crack down on mobiles”: A new generation of mobile phones with cameras brings new threats to courthouse security, The Age of Australia reports here.

Posted at 06:17 by Howard Bashman

Fortune magazine asserts that the Unocal case is pending before the Second Circuit: See this article from that publication’s June 23, 2003 issue.

Posted at 06:10 by Howard Bashman

Available online at law.com: In news from New York, you can access here an article entitled “Wesley to Be Sworn in as Circuit Judge Today” and here an article entitled “Irizarry Found ‘Unqualified’; Few on City Bar’s Judiciary Committee cast votes for Bush nominee from Puerto Rico.” From Hawaii comes news that “Local Zoning Fights Get DOJ Attention; A 3-year-old federal law helps religious groups in zoning clashes.” Finally, you can access here an article headlined “Wanted: New Dean for Catholic Law School.”

Posted at 06:08 by Howard Bashman

“Pryor Restraint: A judge shows he can set aside his strong views.” Terry Eastland had this op-ed in Tuesday’s issue of The Dallas Morning News. I made the same argument more generally, in the context of a nominee who seemed hypothetical at the time, in my monthly appellate column published December 9, 2002.

Posted at 01:06 by Howard Bashman

“Senators Mull Getting Rid of Secret Holds”: Jesse J. Holland of The Associated Press provides this coverage of a hearing that occurred on Tuesday in the U.S. Senate‘s Rules Committee. I provided a preview of that hearing in a post you can access here.

Posted at 01:02 by Howard Bashman

“Presidents, not politicians, nominate Justices”: U.S. Senator John Cornyn (R-TX) on Tuesday issued the following press release:

U. S. Sen. John Cornyn, chairman of the Constitution subcommittee of the Senate Judiciary Committee, sent the following letter to the White House Tuesday in response to recent suggestions by members of the Senate that despite constitutional mandate, and 200 years of Senate precedent, the Congress should select nominees to the Supreme Court:

June 17, 2003

The Honorable George W. Bush

The White House

1600 Pennsylvania Avenue, N.W.

Washington, D.C. 20500

Dear Mr. President:

On May 6, 2003, I convened a hearing of the Senate Subcommittee on the Constitution, Civil Rights and Property Rights, because I believe that the judicial confirmation process in the Senate is broken and needs to be fixed. Unfortunately, recent developments threaten to further politicize, rather than to solve, the current judicial confirmation crisis. Speculating that one or more justices of the U.S. Supreme Court may soon announce their intention to retire, Senators Patrick Leahy and Charles Schumer are now demanding a role not only in the confirmation process, but also in the selection process for appointing Supreme Court justices. As President of the United States, you of course are free to consider suggestions made by any member of the Senate, or indeed by any American. To the extent, however, that Senators Leahy and Schumer intimate that either the Constitution or Senate tradition establish a special role for individual Senators in the process of selecting Supreme Court justices, they are mistaken.

In his June 11 letter, Senator Leahy suggests that Presidents traditionally engage in “consultation with the Senate in advance of nomination” of a Supreme Court justice. He adds that such consultation might even be necessary to “reassure the Senate and the American people that the process of selecting a Supreme Court justice has not become politicized.” Senator Schumer goes even further, claiming in his June 10 letter that the Constitution “mandate[s] that the Senate advise the President on judicial nominations” (emphasis added). Moreover, to carry out his “constitutional obligation” to “advise the President on whom to nominate,” Senator Schumer boldly recommends five individuals for you to nominate to the Supreme Court.

These letters greatly concern me. I have long been a champion of an independent judiciary as a vital institution and as the very foundation of our system of government. Few things concern me more than the threat of politics interfering with our courts and our system of justice, including our system for selecting judges to serve on the federal bench. Few things would politicize our judiciary more than to hand over control of the process for selecting Supreme Court justices to individual members of the United States Senate. Although you are certainly free to entertain suggestions made by Senators Leahy, Schumer, or any other member of the Senate, neither the Constitution nor Senate tradition establishes the wisdom of such a course. Neither the Constitution nor tradition confers any responsibility or authority upon individual Senators to recommend nominees to the Supreme Court, or imposes any obligation upon the President to seek advice from Senators prior to announcing such a nomination.

The Constitution nowhere “dictates that federal judges be nominated by the President with the advice and consent of the Senate,” as Senator Schumer contends. Instead, the Constitution says that only the President shall nominate. It has long been recognized and understood that the Senate’s “Advice and Consent” role is limited to the appointment, and not the nomination, of judges: the Constitution explicitly states that “[t]he President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges.” Much is made of the word “Advice,” but the Advice and Consent Clause establishes only that the Senate’s approval is necessary, but not sufficient, for the President to appoint an individual — just as the Senate’s approval is necessary, but not sufficient, for the President to ratify a treaty. The Senate must give advice on a nomination or a treaty submitted by the President, but it is the President who must, both initially and ultimately, decide.

The text of the Constitution therefore contemplates no formal role for the Senate as an institution — let alone individual Senators — to advise on selecting justices of the Supreme Court. As renowned constitutional scholar and historian David Currie has pointed out, President George Washington consulted with the Senate on the negotiation of future treaties, yet “no comparable practice emerged with regard to appointments; from the outset the President simply submitted the names and the Senate voted yes or no. . . . Madison, Jefferson, and Jay all advised Washington not to consult the Senate before making nominations.” Alexander Hamilton wrote in Federalist No. 76 that “one man of discernment is better fitted to analyze and estimate the peculiar qualities adopted to particular offices than a body of men . . . . In the act of nomination, [the President’s] judgment alone would be exercised.” Law professors frequently consulted by Senate Democrats have expressed similar views. Professor Cass Sunstein, for example, has agreed that “the Constitution contemplates no formal prenomination advisory role for the Senate but reserves the act of nomination exclusively to the President.” Professor Michael Gerhardt has similarly explained that “the Constitution does not mandate any formal prenomination role for the Senate to consult with the president; nor does it impose any obligation on the president to consult with the Senate prior to nominating people to confirmable posts.”

Of course, individual Senators, like all Americans, have the right to suggest possible nominees to the Supreme Court. But no one should be confused into believing that the President is in any way bound, as a constitutional, political, or traditional matter, to follow any of those recommendations. Indeed, it is impossible to comprehend how the President would obey the wishes of 100 individual Senators, each of whom might submit their own slate of nominees. Good faith cooperation between the branches, and between both political parties, is of course frequently desirable and helpful to the effective operation of government. But such cooperation must be a two-way street. You have done your part in the judicial selection process by establishing an exceptionally successful system for selecting the finest legal minds in the country to serve on the federal bench. You have insisted upon individuals who understand that the role of a judge is to interpret, and not to make, law. Yet a minority of Senators has poisoned the atmosphere, by conducting unprecedented and dangerous filibusters of judicial nominees, and by falsely accusing certain judicial nominees of falling outside the mainstream of American jurisprudence. It is difficult to imagine how, given the current environment, there could be good faith consultation with certain Senators on a matter as important as a Supreme Court vacancy.

As President, you of course have the discretion to consider suggestions made by any American, including any individual member of the Senate, in the course of selecting a Supreme Court nominee. But the only role expressly contemplated by the Constitution, and recommended by tradition, in the nomination of Supreme Court justices is the President’s and the President’s alone. The preferences of any individual Senator should not distract any President from his constitutional responsibility to select individuals who are committed to faithfully interpreting the law on behalf of the American people.

Sincerely,

JOHN CORNYN

United States Senator

Senator Cornyn, serving in just his first term in the U.S. Senate, has already risen to the forefront of the Republican Party’s efforts to restore sanity to the judicial confirmation process, and the Republican Party is fortunate to have him there.

Posted at 00:59 by Howard Bashman

“Appeals court reverses part of ruling against overweight woman”: The Associated Press has this report. You can access today’s 2-1 ruling of the U.S. Court of Appeals for the Ninth Circuit at this link, and be sure not to miss the dissent from Circuit Judge Johnnie B. Rawlinson. By the way, is anyone interested in tracking down when the last time Senior Circuit Judge Betty B. Fletcher voted against a Social Security or ERISA disability claimant in a published opinion? I don’t know for sure, but it may have been a long, long time ago.

Posted at 00:51 by Howard Bashman

Some reports on Tuesday’s Ninth Circuit en banc argument in the Unocal case: Jason Hoppin of The Recorder reports here that “9th Circuit Wrestles With ATCA Standards.” Reuters reports here that “Citing Nazis, Lawyers Say Unocal Should Be Tried.” And The Financial Times reports here that “US appeals court hears Unocal human rights case.”

Posted at 00:44 by Howard Bashman

“Sheriff’s deputies seize Hustler videos”: The Cincinnati Enquirer provides this report.

Posted at 00:39 by Howard Bashman

An email from Australia: A reader from Melbourne, Australia emails:

I wonder whether you could answer a query from a slightly confused Australian law student. If the 11 US circuit courts of appeals hear cases based on their geographic region, and the Federal Circuit hears cases on certain subject-matters, what is the basis of the DC Circuit’s jurisdiction? If it’s just geographic, then how come so much work originates in DC?

In Australia, federal appellate jurisdiction is undertaken by 3-judge panels allocated from the Federal Court of Australia (equivalent to the US District Court). There is no separate appellate court, although there has been some suggestion that a single Federal Court of Appeal should be created (perhaps something along the lines of the Federal Court of Canada).

In any case, I am a frequent and appreciative visitor to your site: it’s wonderful to have such an informative and comprehensive discussion of US appellate law available on the web. Surprisingly little US law is taught in Australian law schools (English, Canadian and New Zealand decisions are the most frequently cited), so it’s great that through the wonder of the web, one can nevertheless keep oneself informed of the recent developments in US law.

I would normally take the time to answer this myself, but “new Blogger” was down for the past two hours (hence no U.S. Supreme Court round-up tonight as I had hoped), and thus I throw this question out to my readership. I’ll be pleased to post those answers I view as correct (and, if many are received, the best of them) that arrive via email.

Posted at 00:36 by Howard Bashman

“Justices Break Ground on Court Expansion”: Anne Gearan of The Associated Press has this report.

Posted at 17:43 by Howard Bashman

“Yale bomb probe brings 2nd raid; FBI, state police search Hamden apartment”: Today’s edition of The New Haven Register contains this report. (Via “Jurist’s Paper Chase.”)

Posted at 17:07 by Howard Bashman

Roe seeks to reopen case of Roe v. Wade: You can access some of the relevant documents filed in court today at this Web page. (Thanks to the reader who forwarded the link.) Of course, this simply raises the question — what’s up with Wade these days? The answer is that he died in March 2001 at the age of 86.

Posted at 16:56 by Howard Bashman

“Daschle Doesn’t Want Battle Over Nominee”: Jesse J. Holland of The Associated Press has this report, which begins: “Senate Democratic Leader Tom Daschle asked President Bush on Tuesday to call a meeting with leaders in both parties to talk about ways to avoid a bruising battle over a possible Supreme Court nomination.” I say that the answer is more cartoons, and less face-to-face negotiation.

Posted at 16:31 by Howard Bashman

The Associated Press is reporting: You can access here an article entitled “‘Jane Roe’ Wants Landmark Case Overturned” and here an article entitled “All-Women’s College Rewords Constitution.”

Posted at 15:35 by Howard Bashman

“A Refreshing Exchange: William Pryor goes to Washington.” William F. Buckley Jr. has this essay at National Review Online. (Via “Southern Appeal.”)

Posted at 15:33 by Howard Bashman

“Justice on trial: Judge-lawyer coziness, money cause crisis of confidence”: Sunday’s edition of The Biloxi Sun Herald contained this report.

Posted at 14:41 by Howard Bashman

“Court Backs Secrecy for 9/11 Detainees”: Here is an updated and expanded report from The Associated Press. And James Vicini of Reuters reports here that “Court Says Sept. 11 Arrest Names Can Be Secret.”

Posted at 13:39 by Howard Bashman

“Journalism in the Balance: Supreme Court to rule on affirmative action”: Poynter Online provides this report, which begins: “As the U.S. Supreme Court prepares to rule in the University of Michigan affirmative action case, journalists are considering the impact the decision will have on the future of the profession.”

Posted at 12:33 by Howard Bashman

Sharply divided en banc Sixth Circuit holds unconstitutional a Michigan statute denying court-appointed counsel on appeal to defendants in guilty plea cases: You can access today’s 7-5 ruling of the en banc U.S. Court of Appeals for the Sixth Circuit at this link.

Posted at 12:23 by Howard Bashman

“Justices back RRHA policy; Unanimously refuse to invalidate trespassing rule in city housing”: Today’s edition of The Richmond Times-Dispatch contains this article.

Posted at 11:54 by Howard Bashman

“U.S. Doesn’t Have to Name 9/11 Detainees”: The Associated Press has this report.

Posted at 11:38 by Howard Bashman

Divided D.C. Circuit panel holds that federal government could lawfully refuse to disclose names of September 11th detainees: You can access today’s 2-1 ruling of the U.S. Court of Appeals for the D.C. Circuit in this Freedom of Information Act case at this link.

Posted at 11:28 by Howard Bashman

We’re running out of phone numbers: And switching to an eleven-digit system, according to preliminary estimates, will cost between $50 billion to $150 billion. For additional details, please see this decision that the U.S. Court of Appeals for the D.C. Circuit issued today.

Posted at 11:24 by Howard Bashman

Today’s Ninth Circuit en banc oral argument in Doe v. Unocal, coming soon to TV and the Internet: I am reliably advised that the U.S. Court of Appeals for the Ninth Circuit has agreed to allow C-SPAN to record on video this morning’s en banc oral argument (scheduled to get underway within the half-hour) in Doe v. Unocal, a very interesting case involving the Alien Tort Claims Act. You can access my previous coverage of the case, including a list of the eleven judges selected to decide the case en banc, at this link.

Posted at 11:04 by Howard Bashman

Available at National Review Online: Kathryn Jean Lopez has an essay entitled “The Disney Smear: A goofy tactic used against a Bush judicial nominee.” And Eugene Volokh has an essay entitled “Domestic Disputes: Bad social science and bad legal policy.”

Posted at 10:59 by Howard Bashman

“Judicial Imperialism”: Robert H. Bork has this op-ed in today’s issue of The Wall Street Journal.

Posted at 10:59 by Howard Bashman

The NewsHour with Jim Lehrer looks at yesterday’s U.S. Supreme Court rulings: You can access here the transcript of an interview with Jan Crawford Greenburg, who covers the Court for The Chicago Tribune.

Posted at 07:50 by Howard Bashman

“Limits OK’d on visits to inmates; Michigan rules prevail in U.S. Supreme Court”: Today’s edition of The Detroit Free Press contains this report.

Posted at 07:46 by Howard Bashman

“Court limits the forcible drugging of defendants”: The St. Louis Post-Dispatch reports here that “In a case involving a St. Louisan, the U.S. Supreme Court on Monday set a tougher standard for prosecutors who want to forcibly medicate mentally ill prisoners awaiting trial.”

Posted at 07:44 by Howard Bashman

On the agenda: Today an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit will hear reargument en banc in the case of Doe v. Unocal. You can access my recent coverage of that matter — including the names of the judges who are assigned to the en banc panel — at this link. And Stuart Buck, over at his nicely redesigned blog, offers thoughts here and here about the case.

Posted at 07:09 by Howard Bashman

Elsewhere in Tuesday’s newspapers: In The Boston Globe, Lyle Denniston reports here that “Forced medication of defendants restricted; justices uphold public-housing trespass law” and here that “Supreme Court backs campaign-gift limits; Rulings also affects nonprofits’ donations.” In business news, “Bay State continues Microsoft case alone; W. Va. abandons further appeals.” And an article reports that “Tobacco lawyers rebuffed on fees.”

In The Washington Times, Frank J. Murray reports here that “High court OKs forcible medication for defendants” and here that “Campaign-fund caps imposed on nonprofits.” In other news, “Asbestos bill eyes court-run trust fund.” And in op-eds, Michael I. Krauss asks “Loading the dice for the ruling?”; Bruce Fein writes of “Laudable use of the law”; and Adrienne Washington asserts “Lawyers right to challenge tickets-by-camera policy.”

In USA Today, Joan Biskupic reports here that “Court limits involuntary drugging of defendants” and here covers the “Other decisions Monday.” An editorial is entitled “Supreme Court boosts fight against selling political clout.” And Todd Gaziano has an op-ed entitled “Respect First Amendment.”

In The Los Angeles Times, the full contents of which don’t yet appear to be online, David G. Savage reports that “Court Rules Against Forced Medication of Some Defendants.” In news from Tulia, Texas, “Prisoners’ Release Is Met With Joy; Four years after their arrest in a drug sting, based on the testimony of a now-discredited undercover officer, 12 inmates taste freedom.” From Boston comes a report headlined “Haunted by a Mobster Brother: William Bulger is a leading educator in Massachusetts. But his continued silence about his sibling leads to calls for his ouster.” An article reports that “Santa Ana Battles to Retain Court; The state 4th District Court of Appeal could be moved to the UC Irvine campus.” And from Sacramento comes news that “Online Sex Offender Registry Debated; Assembly Republicans want to post addresses, but Democrats are wary of possible vigilantism. Future of Megan’s Law in California is at stake.”

Update: These additional articles appear in The LATimes. David Savage reports here that “Corporate Funding Ban Survives; Ruling on contributions in federal elections is seen as a good sign for campaign finance law” and here that “Justices Uphold Trespassing Ban at Public Housing; Supreme Court rejects a free-speech challenge to the Virginia policy. Case centers on barring nontenants in crime-ridden project.” Henry Weinstein reports that “Strict Prison-Visit Rules Upheld; In a 9-0 decision, justices say state of Michigan’s interest in maintaining security outweighs inmates’ rights in case of visitation restrictions.” Finally, letters to the editor appear under the heading “Demagoguery Behind Late-Abortion Bill.”

Posted at 06:40 by Howard Bashman

“Head of ACLU fearful rights may be violated”: Yesterday’s edition of The Miami Herald contained this report.

Posted at 06:30 by Howard Bashman

Today’s FindLaw columnists: Joanna Grossman has an essay entitled “A Recent Supreme Court Decision Makes it Easier for Plaintiffs to Proceed When Discrimination Is One Motive, But Not the Only One.” And Brian Lehman has an essay entitled “Can You Sue Someone In Fifty Words Or Less? Why Plaintiffs’ Lawyers Ignore The Supreme Court’s Instructions To Keep Complaints Brief.”