How Appealing

Tuesday, March 29, 2005

On this date in “How Appealing” history: One year ago today, legal challenges to the federal partial birth abortion ban went to trial in three separate federal district courts across the country. My summaries of relevant news reports published that day can be viewed here and here.

Also one year ago today, as I noted here, we learned that Madison County, Illinois resents its “judicial hellhole” label.

And exactly two years ago today, National Public Radio‘s “All Things Considered” program aired a segment featuring Nina Totenberg entitled “McCain-Feingold Bill Languishes” (RealPlayer required). Somehow, this segment managed to elude my attention for a couple of days, but when I finally heard it I described it as “An astonishing breach of courthouse confidentiality.” A transcript of the segment can be viewed here.

Posted at 11:30 PM by Howard Bashman

Available online from An article is headlined “N.Y. Appeals Court: Telecommuter Must Pay Empire State Tax; Challenge to ‘convenience of the employer’ test fails.”

And in other news, “Calif. Court Balks at 25 Years for Sex Registration Failure.” Last Friday’s ruling of the California Court of Appeal for the Third Appellate District begins, “This case raises the question whether there is an offense so minor that it cannot trigger the imposition of a recidivist penalty without violating the cruel and/or unusual punishment prohibitions of the United States and California Constitutions.”

Posted at 10:30 PM by Howard Bashman

In Wednesday’s edition of The New York Times: Linda Greenhouse will have articles headlined “Lively Debate as Justices Address File Sharing” and “Justices Say Gender Bias Law Guards Against Retaliation Too.”

The newspaper will contain an obituary headlined “Johnnie L. Cochran Jr., Trial Lawyer Defined by O.J. Simpson Case, Is Dead at 67” written by Adam Liptak.

An obituary will bear the headline “Howell Heflin, Former Alabama Senator, Dies at 83.”

And in news pertaining to the war on terror, “Judge Limits the Transfer of 13 From Guantanamo“; “Yemeni Held in Guantanamo Was Seized in Cairo, Group Says“; and “Detainee’s Suit Gains Support From Jet’s Log.”

Posted at 10:05 PM by Howard Bashman

“Justices skeptical in song-swapping case; Justices ask if restricting file sharing could stifle innovation, yet question online downloading”: provides this report.

Posted at 5:02 PM by Howard Bashman

“Top U.S. Court Weighs Internet File-Sharing Case”: Reuters reports here that “Supreme Court justices questioned on Tuesday whether the recording industry’s attempts to shut down online file-sharing networks would deter inventors from developing new products like Apple’s iPod music player.”

Posted at 2:35 PM by Howard Bashman

Today’s rulings of note from the U.S. Court of Appeals for the Ninth Circuit: Today’s most newsworthy ruling may be an order certifying to the Supreme Court of California two important questions in a tobacco product liability lawsuit. The questions are:

(1) Under California law, can a plaintiff overcome the presumed awareness that he or she knows that smoking causes addiction and other health problems, and so show justifiable reliance? (2) Under California law, if a plaintiff seeks damages resulting from an addiction to tobacco, does an action for personal injury accrue when the plaintiff recognizes that he or she is addicted to tobacco, if the plaintiff has not yet been diagnosed with an injury stemming from tobacco use?

Whether today’s order turns out to be good news for injured smokers or the tobacco companies will depend on whether and how California’s highest court answers these questions. For now, it is worth noting that the federal trial court whose decision is before the Ninth Circuit for review dismissed as untimely the claims of the injured smokers-plaintiffs.

A second decision issued today also involves California, and the Ninth Circuit’s opinion begins, “Persons whose stock was escheated to the state sued to get it back. The district court held that the Eleventh Amendment barred their claims. We disagree.”

At what point do nominal damages cease to be nominal? That question may be relevant in light of a third decision, in which the Ninth Circuit holds that “when nominal damages are awarded in a civil rights class action, every member of the class whose constitutional rights were violated is entitled to nominal damages.”

Finally, today’s fourth noteworthy case begins with a tale of liver in the kitchen. The author of today’s majority opinion in this habeas case, on remand from the U.S. Supreme Court, shouldn’t be too hard to guess based on the following excerpt: “There may not be an intellectual or logical disconnect in that form of reasoning, but the Supreme Court has told us that, while the legal mind might be that daedalian (or would it say ‘banausic’), no jury would be.” If the past is any guide, the likelihood that the U.S. Supreme Court would use either of those terms is quite remote. A Westlaw search indicates that “banausic” has appeared once in a majority opinion, while “Daedalian” spelled with a capital D has appeared once in a dissent.

Posted at 1:15 PM by Howard Bashman

“Schiavo Case Unexpectedly Unites Americans”: Reuters reports here that “The Terri Schiavo case has had the unexpected effect of uniting most Americans, whether Republicans or Democrats, around a consensus that the government should stay out of families’ life and death decisions.”

Posted at 12:50 PM by Howard Bashman

“Tribe vs. Ponnuru”: National Review Online has today posted here an exchange of letters being published in that magazine’s April 11, 2005 issue.

Posted at 12:00 PM by Howard Bashman

The Los Angeles Angels of Anaheim, a city that is quite near Los Angeles in case you haven’t noticed: The battle over the the new, quite odd name of the team formerly known as the Anaheim Angels was the subject of an oral argument in a state appellate court in California yesterday.

The Orange County Register reports today that “Anaheim, Angels might try for settlement again; Judge urges a compromise on dispute over team name before ruling on appeal.”

And The Los Angeles Times reports that “Court Urges Anaheim, Angels to Negotiate; Hearing refers to a previous, off-the-record meeting between Moreno and the city’s mayor that got nowhere.”

Posted at 11:00 AM by Howard Bashman

“‘Non-Traditional’ Parent Earns Visitation Victory; Lesbian Status Doesn’t Alter Result”: Today in The Legal Intelligencer, Melissa Nann Burke has an article (subscription required) that begins, “A lesbian cannot be denied the legal right to visit the daughter she helped raise with her former partner on the basis of speculation that ongoing animosity between the separated women would ‘damage’ the 11-year-old, a state appeals court ruled yesterday.” You can access yesterday’s ruling of the Superior Court of Pennsylvania at this link.

Posted at 10:50 AM by Howard Bashman

“High court may duck hot issue; Bush’s actions could push the Mexican nationals’ case back to state judges”: Michael Doyle has this article today in The Sacramento Bee.

Posted at 10:35 AM by Howard Bashman

Today’s U.S. Supreme Court opinions in argued cases: Justice Sandra Day O’Connor delivered the Court’s opinion in Jackson v. Birmingham Bd. of Ed., No. 02-1672, which the Court decided by a 5-4 margin. You can access the syllabus here; Justice O’Connor’s majority opinion here; Justice Clarence Thomas’s dissenting opinion here; and the oral argument transcript here.

Justice Ruth Bader Ginsburg delivered the Court’s opinion in City of Sherrill v. Oneida Indian Nation of N.Y., No. 03-855. You can access the syllabus here; Justice Ginsburg’s majority opinion here; Justice David H. Souter’s concurring opinion here; Justice John Paul Stevens’ dissenting opinion here; and the oral argument transcript here.

In early press coverage, Hope Yen of The Associated Press has a report headlined “Court: Title IX Protects Whistleblowers.”

Posted at 10:00 AM by Howard Bashman