How Appealing

Wednesday, March 30, 2005

“Divisive File-Sharing Issue Tackled by Supreme Court”: David G. Savage has this article today in The Los Angeles Times.

The Washington Post reports today that “Court Weighs File Sharing; Technology Advances vs. Copyrights in Grokster Case.”

In USA Today, Joan Biskupic reports that “File sharing goes to high court; No consensus apparent among justices.”

Jan Crawford Greenburg of The Chicago Tribune reports that “Court mulls downloading liability; Movie, music firms vs. software companies.” She also discussed the case on yesterday evening’s broadcast of the PBS program “The NewsHour with Jim Lehrer.”

Michael McGough of The Pittsburgh Post-Gazette reports that “Supreme Court hears high-tech disputes; Justices reluctant to limit communication services.”

Luiza Ch. Savage of The New York Sun reports that “Justices Appear Wary of File-sharing Copyright Lawsuit.”

The Boston Globe reports that “Justices wrestle with file-swap issues; Court also considers whether cable firms must share Net access.”

The Washington Times reports that “Justices weigh innovation vs. copyright.”

The Houston Chronicle reports that “Justices ask about innovation; Court reviews peer-to-peer file-sharing case.”

And Wired News offers articles headlined “File Sharing Has Supreme Moment” and “Camping Out for the Grokster Case.”

Posted at 11:15 PM by Howard Bashman

“Hale puts faith in being own lawyer”: Yesterday’s issue of The Chicago Tribune contained an article that begins, “Jailed white supremacist Matthew Hale, scheduled to be sentenced next week for plotting to murder U.S. District Judge Joan Lefkow, said he was traumatized by his conviction ‘to the point of self-destructive behavior.'”

Posted at 10:55 PM by Howard Bashman

Available online from An article reports that “Bush’s Nominees Likely to Put Stamp on Circuits; GOP judges may go from 60 percent to 85 percent.”

Tony Mauro has articles headlined “Supreme Court Widens Age Discrimination Protections” and “Cochran’s Death Raises Questions for High Court Case.”

An article reports that “2nd Circuit Finds IDEA Allows Recovery of Expert Fees; Such expenses seen as ‘reasonable costs.’

And in other news, “Court Powerless to Annul Same-Sex Marriage; Connecticut couple wed in Massachusetts never legally bound together.”

Posted at 10:14 PM by Howard Bashman

“‘Mr. Smith’ joins filibuster fray; People for the American Way ad campaign targets uncommitted GOP senators in battle over Bush judicial nominees”: Tom Curry, national affairs writer for MSNBC, has this report today, along with an article headlined “A Democratic dark horse poised to emerge; Feingold’s Judiciary spot provides an ’08 advantage.”

CBS News provides a report that asks “Is GOP Prepared To Go Nuclear?

The ad campaign that People For the American Way launched today can be viewed online in Windows Media format here (60-second spot) and here (30-second spot). The ads direct viewers to visit the web site

In response to the ad campaign, Committee for Justice issued a press release entitled “PFAW’s Phony Filibuster Ad.” In related news, The Washington Post reports here today (second item) that CFJ’s chairman, C. Boyden Gray, “is said to be in line to be named ambassador to the European Union,” a job that’s based in Brussels.

And in commentary, The Bangor Daily News today contains an editorial entitled “Nukes in the Senate.”

Posted at 8:40 PM by Howard Bashman

“11th Circuit Denies Latest Schiavo Appeal; Judge Calls Congressional, Executive Intervention Unconstitutional”: The Washington Post provides this news update.

The New York Times offers a news update headlined “U.S. Appeals Court Refuses to Review Schiavo Case.”

The Miami Herald offers a news update headlined “Appeals court rebukes Congress, denies request by Schiavo’s parents.”

And Reuters reports that “Court Rejects Schiavo Parents’ Last-Ditch Appeal.”

Those looking for my “20 questions for the appellate judge” interview with Eleventh Circuit Judge Stanley F. Birch, Jr. — the author of today’s noteworthy opinion concurring in the denial of rehearing en banc — will find the interview at this link.

Posted at 6:00 PM by Howard Bashman

“Older workers get a new tool to fight age discrimination; A Supreme Court ruling Wednesday opens the door to lawsuits regarding age bias that may be unintentional”: Warren Richey will have this article in Thursday’s edition of The Christian Science Monitor.

Posted at 5:55 PM by Howard Bashman

BREAKING NEWS — U.S. Court of Appeals for the Eleventh Circuit again denies rehearing in Terri Schiavo case: The order denying panel rehearing is here and the order denying rehearing en banc is here.

The order denying rehearing en banc appears to contain several very interesting opinions concurring in and dissenting from the denial of en banc rehearing. In particular, Circuit Judge Stanley F. Birch, Jr. argues in an opinion concurring in the denial of rehearing en banc that the legislation Congress passed and President Bush signed into law applicable to Terri Schiavo’s situation is unconstitutional. Again, however, only two judges note any dissent from the order denying rehearing en banc. Earlier, I linked here to the rehearing petition Ms. Schiavo’s parents filed last night.

The order denying rehearing en banc also notes that “Judge William H. Pryor Jr. did not participate in the consideration of the Petition because he is recovering from surgery performed on Monday, 28 March 2005.” Best wishes to Judge Pryor for a prompt and complete recovery.

Posted at 3:24 PM by Howard Bashman

Perhaps the answer to “what they are like” is “nasty, brutish, and short“: On Monday, Will Baude had a post at “Crescat Sententia” titled “The Axis of…” Will writes:

In the course of procrastinating around on LEXIS I came across a D.C. Circuit opinion decided by the panel of Judge Robert Bork, Judge Ken Starr, and Judge Antonin Scalia. Now that I think about it, I had been dimly aware that all three were D.C. Circuit judges at about the same time, but I had never realized that they must have decided cases together. I now wonder how many there are, and what they are like.

If Will needs help replacing the ellipsis in his blog post’s title, Eugene Volokh provides some suggestions here.

Posted at 2:55 PM by Howard Bashman

“Path Eased for Age Discrimination Lawsuits; Justices say employers can be held liable even if they intended no harm”: David G. Savage of The Los Angeles Times provides this news update.

Posted at 2:40 PM by Howard Bashman

I have just posted online the latest Eleventh Circuit filings made by Terri Schiavo’s parents: With much thanks to a reader who forwarded these along, you can now access online both the motion for leave to file out-of-time a petition for rehearing en banc and the petition for rehearing en banc itself that Terri Schiavo’s parents filed late yesterday in the U.S. Court of Appeals for the Eleventh Circuit. According to The Associated Press, the Eleventh Circuit has granted the motion for leave to file out-of-time, and thus the rehearing petition is now pending for a decision.

Posted at 11:30 AM by Howard Bashman

“When Ibid. Meets iPod”: The Los Angeles Times today contains an editorial that begins:

Even on a day when justices heard historic arguments on global online sharing of music files, let’s agree it’s hard to picture a U.S. Supreme Court member bouncing along to Gwen Stefani or Kanye West on an iPod. Lawrence Welk maybe, on an eight-track in a blimp-sized Buick. But to them, Ludacris is an obvious misspelling.

With an average age, according to recent photographs, exceeding 110 years, the nine justices are seen by many as culturally preparing to enter the 1950s, well before millions felt that one necessity of life is the ability to pocket hundreds of songs for instant reverie.

You can access the complete editorial at this link.

Posted at 10:52 AM by Howard Bashman

Today’s U.S. Supreme Court opinions in argued cases: Justice Ruth Bader Ginsburg delivered the opinion for a unanimous Court in Exxon Mobil Corp. v. Saudi Basic Industries Corp., No. 03-1696. You can access the syllabus here, Justice Ginsburg’s opinion here; and the oral argument transcript here.

Justice Sandra Day O’Connor delivered the opinion of hte Court in Rhines v. Weber, No. 03-9046. You can access the syllabus here; Justice O’Connor’s majority opinion here; Justice John Paul Stevens’ concurring opinion here; Justice David H. Souter’s opinion concurring in part and concurring in the judgment here; and the oral argument transcript here.

Finally, Justice Stevens announced the judgment of the Court
and delivered the opinion of the Court in part in Smith v. City of Jackson, No. 03-1160. You can access the syllabus here; Justice Stevens’ opinion here; Justice Antonin Scalia’s opinion concurring in part and concurring in the judgment here; Justice O’Connor’s opinion concurring in the judgment here; and the oral argument transcript here. Chief Justice William H. Rehnquist did not take participate in the decision of this case.

In early coverage, Hope Yen of The Associated Press reports that “Court Issues Age Discrimination Ruling.” And Lyle Denniston of “SCOTUSblog” reports that “Older workers need not prove intentional bias.”

Posted at 10:00 AM by Howard Bashman

“Supreme Court to review procedures for ‘supermax’ prison assignments”: The Associated Press provides this report on the lone case being argued today at the U.S. Supreme Court.

In related supermax news, last week The AP reported that “Ohio will move death row; Shift to Youngstown meant to save money.”

And confinement in the federal government’s most notorious supermax may have once been unexpectedly harmful to one’s health — due to second-hand cigarette smoke. The Rocky Mountain News reported on Saturday that “One inmate remains in SuperMax smoking suit.” And The Denver Post reported last Friday that “Inmate litigation burns feds.”

Posted at 9:55 AM by Howard Bashman

The Terri Schiavo case and the perils of raising new arguments on rehearing in a U.S. Court of Appeals: Earlier this morning, I collected at this link news reports on a new development in Terri Schiavo’s parents’ appeal to the U.S. Court of Appeals for the Eleventh Circuit.

As best I can glean from those news reports, the Eleventh Circuit has granted the request of Ms. Schiavo’s parents to file a petition for rehearing after the deadline that had been established in the Eleventh Circuit’s decision on the merits of the parents’ second appeal. That deadline was “8:00 a.m. ET, March 26, 2005,” as noted in footnote 4 on page 14 of that opinion.

The Associated Press is reporting this morning that “In requesting a new hearing, the Schindlers argued that a federal judge in Tampa should have considered the entire state court record and not whether previous Florida court rulings met legal standards under state law.”

If that is in fact a “new argument,” as the press reports to which I linked earlier this morning are suggesting, the parents’ request for rehearing may face an insurmountable procedural obstacle — that new arguments cannot be raised on rehearing except in the rare event that they were unavailable before the ruling as to which rehearing is sought.

Some may justifiably retort that surely a federal court would not strictly apply doctrines of waiver in a case of life and death. All that I can observe in response is that in the area of life and death that federal courts grapple with most commonly — death penalty jurisprudence — the waiver doctrine and other related procedural niceties are regularly applied to deny relief even on the eve of an inmate’s execution.

Posted at 9:30 AM by Howard Bashman

“Politician on court isn’t a bad thing: When the Supreme Court has a vacancy, President Bush should appoint a justice with a political pedigree; Though the thought sounds heretical today, it makes more sense than ever.” Paul A. Sracic has this op-ed today in USA Today.

Posted at 7:32 AM by Howard Bashman

“U.S. court seeks state tobacco law clarification; Result could affect verdicts in lawsuits by addicted smokers”: Bob Egelko has this article today in The San Francisco Chronicle.

Posted at 7:30 AM by Howard Bashman