How Appealing

Friday, March 18, 2005

A Washington, DC-based reader emails: After reading Rod Smolla‘s jurisprudence essay online at Slate, an appellate lawyer based in the District of Columbia writes:

It always irks me when people who mean to refer to the United States Court of Appeals for the District of Columbia Circuit refer to it as the “District of Columbia Court of Appeals.” There is a court by that name, and it is not the federal appellate court on Third and Constitution. There are lots of shorthands for the D.C. Circuit, including “D.C. Circuit,” “U.S. Court of Appeals for the D.C. Circuit,” “Court of Appeals for the District of Columbia Circuit,” etc. Only by truncating both “United States” and “Circuit” can anyone get in trouble.

Never before today, however, have I seen the D.C. Circuit misidentified as the “District of Colombia Court of Appeals.” If the decisionmaker with respect to Judith Miller and Matthew Cooper’s privilege claim was somehow beholden to a shaky South American government, no wonder they lost.

Shades of “de minibus.”

The error this reader is emailing about can be found in the first sentence of the tenth paragraph of Smolla’s essay:

Turning to the reporter’s privilege—now under especially intense scrutiny in courts and Congress, in light of a recent decision by the District of Colombia Court of Appeals arising from the Plame affair—the court held that no First Amendment reporter’s privilege exists at all—and that journalists Judith Miller and Matthew Cooper should report directly to jail without passing go.

De minibus” indeed.

Posted at 6:50 PM by Howard Bashman

“Jury begins deliberating in truck death case”: The Houston Chronicle provides a news update that begins, “The jury in the Tyrone Williams trial begin deliberations at 4:45 p.m. today, after prosecutors and Williams’ attorney completed their closing arguments.” If the jury convicts, it would next take up the question of whether to impose the death penalty should the trial judge agree that the law would allow a sentence of death to be imposed.

Posted at 6:08 PM by Howard Bashman

House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property puts itself in the eye of the Vornado: In its 2002 ruling in in Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., the U.S. Supreme Court held that the U.S. Court of Appeals for the Federal Circuit only has jurisdiction over appeals in which the plaintiff’s well–pleaded complaint alleges a patent law claim. Thus, where a plaintiff’s complaint contains no patent law claim but the defendant’s answer asserts a patent law counterclaim, an appeal of a trial court’s patent law ruling would properly be heard by a regional U.S. Court of Appeals instead of the Federal Circuit. Because one major purpose for having the Federal Circuit was to advance uniformity in patent law, many in Congress are interested in overturning the result in Vornado.

Indeed, this week, the House Judiciary Committee‘s Subcommittee on Courts, the Internet, and Intellectual Property held hearings with an eye toward accomplishing that very result. The blog “Patently-O: Patent Law Blog” offers two posts about the hearings: “Congress Discusses Which Court Should Hear Patent Cases” and “Patent Attorneys Testify to Consistency of Federal Circuit Court of Appeals.”

In September 2003, Judge William Curtis Bryson of the Federal Circuit participated in this blog’s “20 questions for the appellate judge” feature. I asked him: “as a matter of policy, would you favor an amendment by Congress to the relevant jurisdictional statutes to give the Federal Circuit exclusive appellate jurisdiction over all patent claims, whether asserted by the plaintiff or defendant?”

And Judge Bryson answered:

It is too soon to tell whether the Vornado case will introduce a significant amount of non-uniformity into patent law because of the fact that regional circuits will now be deciding some patent issues. My guess is that the effect will be marginal and that the regional circuits, which have been out of the patent business for the past 20 years, will not be leaping to seize the opportunity to create circuit splits with us. A congressional fix would have the useful effect of returning us to where we were before Vornado, and it is difficult for me to see any strong policy reasons against making that change.

You can access Judge Bryson’s complete interview at this link.

Posted at 5:05 PM by Howard Bashman

“State Supreme Court rules on damages in crane collapse; Decision that tossed $94 million award overturned, sent back to appeals court”: The Milwaukee Journal Sentinel provides this news update.

Posted at 3:22 PM by Howard Bashman

And in other news from Canada: The Toronto Globe and Mail today also contains an article headlined “Don’t dither on selection process, judge warns PM.”

The article begins, “Mr. Justice Jack Major intends to retire from the Supreme Court of Canada this fall and has warned that Prime Minister Paul Martin must either redesign a judicial selection process quickly or risk being accused of ‘dithering.'”

Lastly, in other big news from Canada’s highest court, “Quebec Margarine Can’t Masquerade as Butter, Canada Court Rules,” Bloomberg News reports. And CBC News offers a report headlined “Keep the lid on yellow margarine: Supreme Court.”

Posted at 3:12 PM by Howard Bashman

“Death-penalty debate grips China after wrongful execution”: This article appears today on the front page of The Toronto Globe and Mail.

Posted at 3:10 PM by Howard Bashman

Easy Rider“: The U.S. Court of Appeals for the Fourth Circuit today issued an opinion that begins:

This case involves a dormant Commerce Clause challenge to a unique provision in Virginia’s motorcycle dealer franchise law. The provision allows any existing franchised dealer in Virginia to protest the establishment of a new dealership for the same brand anywhere in the Commonwealth. The district court rejected the challenge, concluding that the statute neither discriminates against, nor imposes a cognizable burden upon, interstate commerce. We conclude, however, that the statute’s provision for statewide protest rights unduly burdens interstate commerce in violation of the dormant Commerce Clause. The judgment is therefore reversed.

You can access the opinion at this link.

Posted at 2:55 PM by Howard Bashman

Gun free high school yearbook zone: The Associated Press offers an article headlined “N.H. Federal Judge Rules Against Gun Photo” that begins, “A high school senior’s bid to hold a shotgun in his yearbook portrait was rejected Thursday by a federal judge.” You can view the photo at issue by clicking here. And yesterday’s ruling of the U.S. District Court for the District of New Hampshire can be accessed at this link.

In earlier coverage, last week The Union Leader of Manchester, New Hampshire reported that “Judge tells student he’s unlikely to win yearbook case.”

Posted at 1:20 PM by Howard Bashman

BREAKING NEWS — “Judge: Keep Schiavo feeding tube in place.” The Associated Press has just issued a report that begins, “A state judge on Friday temporarily blocked the removal of the feeding tube for severely brain-damaged Terri Schiavo as legal wrangling continued over efforts by congressional Republicans to keep her alive.”

Posted at 1:07 PM by Howard Bashman

The New York Times neglects to offer its own coverage of yesterday’s Second Circuit oral argument in the appeal from Martha Stewart’s conviction: Instead, the newspaper appears to have opted for wire service coverage.

But, other newspapers found covering the oral argument worthwhile. The Washington Post reports today that “Stewart Wants to Be Resentenced; Lawyers Argue Impact Of High Court Ruling.”

Newsday today contains an article headlined “Questions about witness perjury; Appeals panel asks why judge in Martha’s trial never set hearing on veracity of expert witness Larry Stewart.”

The Journal News of Westchester, New York reports that “Stewart’s lawyer seeking new trial, sentence.”

The New York Daily News reports that “Martha could lose bracelet.”

And The New York Post offers an article headlined “Martha’s Munchies.”

Posted at 1:02 PM by Howard Bashman

“Judge Orders Suspended Attorney To Withdraw From Age Bias Case”: Today in The Legal Intelligencer, Shannon P. Duffy has an article (paid subscription required) that begins:

Despite having his license suspended by the Pennsylvania Supreme Court, attorney Frank J. Marcone has for years enjoyed the right to continue practicing in the Eastern District of Pennsylvania federal court.

But now one judge on that court has ruled that Marcone cannot handle any cases before him because he is not currently licensed in any state and therefore is not subject to continuing legal education requirements or attorney discipline, and does not make payments to the Pennsylvania Lawyers Fund for Client Security.

I have uploaded a copy of Wednesday’s ruling of the U.S. District Court for the Eastern District of Pennsylvania at this link.

Back in August 2004, I had this lengthy post about a ruling from the Supreme Court of Pennsylvania in an appeal involving this very same attorney and his efforts to continue practicing in Philadelphia’s federal district court.

Update: has now made the article mentioned at the outset of this post freely available at this link.

Posted at 12:04 PM by Howard Bashman

Blogads: In cooperation with, which hosts “How Appealing,” I’m so very pleased to announce that my blog has been approved to begin hosting advertisements placed through the Blogads service.

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More information about Blogads can be found in “A Mini-Interview With Henry Copeland From Blogads” and at the service’s web site.

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Posted at 11:15 AM by Howard Bashman