How Appealing

Tuesday, April 12, 2005

On this date in “How Appealing” history: On this date in 2004, it became publicly known that Justice Antonin Scalia had apologized to reporters for the seizure of their audiotape recordings following a speech that he had delivered the week before in Mississippi. I offered posts linking to the apology itself and to press coverage of the apology.

Posted at 11:44 PM by Howard Bashman

Available online from Tony Mauro reports that “Justices Kennedy, Thomas Respond to Criticism From Congress.”

Marcia Coyle reports that “Supreme Court to Review Patent Safe Harbor; Ruling could have big impact on drugs, biotech.”

In other news, “Admonition and Apology Over Federal Judge’s ‘Bush v. Gore’ Remarks Found Sufficient.”

And an article reports that “Bid to Upset Sentence Under ‘Booker’ Rejected; 2nd Circuit says no retroactivity for case on collateral review.”

Posted at 10:50 PM by Howard Bashman

“Specter endorses Owen; Texan’s abortion-related rulings neutral, senator says as vote nears”: This article will appear Wednesday in The Dallas Morning News.

Posted at 9:04 PM by Howard Bashman

Available online from The Los Angeles Times: A news update headlined “Lawmakers Consider Widening School Mascot Prohibition” begins, “Almost a decade after American Indian mascots were banned from Los Angeles public schools, California lawmakers this week are again considering a statewide prohibition on ‘Redskins.'” Yesterday, I had a related post here.

Today’s newspaper contains an article headlined “Testing Copyright Limits: Grouper’s creators say it’s not like other file-sharing programs; The entertainment industry isn’t so sure.”

Also in today’s newspaper, David Kaczynski has an op-ed entitled “Death Penalty Turnaround.” David Kaczynski is the brother of the Unabomber and was instrumental in enabling the authorities to determine who was responsible for those crimes.

Posted at 8:45 PM by Howard Bashman

The Knight Ridder Newspapers are reporting: Stephen Henderson has an article headlined “Teen killers, now spared death sentences, remain in need of rehabilitation.”

And James Kuhnhenn has an article headlined “Congressional Democrats move to exploit schisms in GOP ranks” that begins, “Sensing divisions within the GOP ranks, congressional Democrats are turning up the heat on Republicans, accusing them of trying to use their power to intimidate judges, change Senate rules and avoid ethics scrutiny.”

Posted at 8:30 PM by Howard Bashman

“High Court Justices Seek Security Boost”: Hope Yen of The Associated Press reports here that “Two Supreme Court justices urged Congress on Tuesday to provide more money to boost security at their building, saying recent attacks on federal judges underscore the need.”

And’s Tony Mauro provides a news update headlined “Justices Defend Judiciary Against Hill Jabs.”

Posted at 5:58 PM by Howard Bashman

“2 Groups at Odds With GOP on Filibusters”: Jesse J. Holland of The Associated Press reports here that “Two groups normally allied with Republicans have bolted from the party’s effort to ban judicial filibusters – the first major defections from a conservative push to prevent Senate Democrats from blocking President Bush’s judicial nominees.”

Posted at 5:24 PM by Howard Bashman

“Uppity judges on both sides”: Today in The Rocky Mountain News, Law Professor Paul Campos has an op-ed that begins, “Suppose the American Civil Liberties Union were to organize a conference in Washington, D.C., attended by Democratic members of Congress and prominent liberal activists, at which one of these activists gave a speech implying that Justice Antonin Scalia ought to be assassinated.”

Meanwhile, today at Human Events Online, Patrick J. Buchanan has an essay entitled “Fighting and Winning the ‘Judges War.’” And Phyllis Schlafly has an essay entitled “Next We Should Starve the Courts.”

Finally for now, online at, Thomas Sowell today has an essay entitled “Above criticism?

Posted at 5:04 PM by Howard Bashman

En banc Eleventh Circuit rejects challenge under the equal protection clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act to Florida’s felon disenfranchisement statute: You can access today’s ruling at this link. Previously, a divided three-judge panel had reached the opposite result in the very same case.

Update: At his “Election Law” blog, Law Professor Rick Hasen offers this analysis.

Posted at 4:45 PM by Howard Bashman

“The jury is in: Letterman is out.” The Journal News of Westchester, New York today contains an article that begins, “David Letterman didn’t have to resort to any of his Top 10 ways of staying off a Westchester County jury yesterday.”

Posted at 4:28 PM by Howard Bashman

“Republicans Clash Over Filibuster”: This post today at “Taegan Goddard’s Political Wire” notes a Wall Street Journal article reporting that the Republican leadership in the U.S. Senate still lacks the votes necessary to invoke the so-called “nuclear option.”

Posted at 4:20 PM by Howard Bashman

Reader mail: In response to this post from yesterday, Law Professor R. Polk Wagner emails:

Your recent post concerning the Federal Circuit’s ‘experiment’ with pre-announcing panels was interesting, and prompted me to respond. In general, I think pre-announcing panels is probably good for the lawyers, but probably bad for the law, for the following reasons:

1. An appellate court might want to preserve the aura that the court makes decisions independent of the specific panel involved in a given case. This improves confidence in the court system, de-personalizes the appeals, etc.

2. Far more importantly, one might expect that pre-announcing panels will have a detrimental effect on the development of legal doctrine, by distorting the distribution of decision-making among panels. For example, in the Claim Construction research project that I run, we are able to demonstrate that several panels of the Federal Circuit are (with respect to patent claim construction) are highly predictable (~90+ percent confidence), while others are far more unpredictable. You can see this in action at the Federal Circuit Predictor Tool which offers a way of predicting — given panel membership — case outcomes.

So here’s the problem with pre-announcing panels: Given the information provided by the Federal Circuit Predictor tool (which is, after all, essentially a highly systematic and formalized way of assessing the judges in the same way good lawyers do by hunch and experience), we should expect that, over time, the distribution of last-minute settlements will be uneven — with less settlements occurring where an unpredictable panel is assigned. Thus, over time, the unpredictable panels will be generating more than their random share of decisions, and (more importantly), opinions. Thus, the caselaw might well suffer.

I explore these and other facets of panel dependency in the context of the Federal Circuit in my article, “Is the Federal Circuit Succeeding? An Empirical Assessment of Judicial Performance.”

I thank Professor Wagner, whose blog you can access here, for sending this along.

Posted at 3:33 PM by Howard Bashman

“Top Court Seeks More Money for Police Security”: Reuters provides this report. According to Reuters, the request was contained in prepared remarks that Justice Anthony M. Kennedy was scheduled to deliver this afternoon in an appearance before the House Appropriations Subcommittee on Transportation, Treasury, Housing and Urban Development, the Judiciary, District of Columbia and Independent Agencies.

Some may recall that this past Saturday in The Washington Post, Dana Milbank had an article headlined “And the Verdict on Justice Kennedy Is: Guilty.” The article begins, “Supreme Court Justice Anthony M. Kennedy is a fairly accomplished jurist, but he might want to get himself a good lawyer — and perhaps a few more bodyguards.”

Posted at 1:44 PM by Howard Bashman

“When having no information is too much information: Why must bloggers keep us apprised on days when they have nothing to say?” Alan Greenblatt had this essay in Sunday’s edition of The San Francisco Chronicle.

Posted at 11:18 AM by Howard Bashman

“Appeals court restores part of Young’s civil-rights suit; The decision says U.S. District Judge Mary Lisi should have let a jury decide whether the city was responsible for poorly training an officer involved in the shooting death of Sgt. Cornel Young Jr. in 2000”: This article appears today in The Providence Journal.

Posted at 10:05 AM by Howard Bashman

“Apple vs. the press”: This post at “Scott Rosenberg’s Links & Comment” links to an amicus brief filed on behalf of some well-known bloggers in the currently pending Apple Computer vs. bloggers appeal. A list of the bloggers who have joined in the amicus brief can be accessed at a post titled “Bloggers Speak Up in Apple Case” at Electronic Frontier Foundation’s “Deep Links” blog.

Posted at 9:55 AM by Howard Bashman

“The Supreme Court Case Involving Johnnie Cochran: Does The Controversy Survive His Death? And If So, Who Should Win?” FindLaw columnist Julie Hilden has this essay today. Hilden is also one of the participants in this week’s “Debate Club” feature here at, on the subject “Does Fame Help in Court?” To my dismay, the debate centers on the client’s fame, not the lawyer’s.

Posted at 9:50 AM by Howard Bashman

“In Contempt of Courts”: Online at The Nation, Max Blumenthal has an essay that begins, “Michael Schwartz must have thought I was just another attendee of the ‘Confronting the Judicial War on Faith’ conference.” C-SPAN has posted online here (RealPlayer required) nearly three hours of coverage from the first day of that conference.

Posted at 9:44 AM by Howard Bashman

“Failure Buster: The filibuster helps conservatives more than liberals; It’s time to get rid of it.” Matthew Yglesias has this essay online today at The American Prospect.

Posted at 9:40 AM by Howard Bashman

“Fears cancel justice’s speech to club; Concerns about security raised during the Schiavo saga prompt Tiger Bay Club to cancel its luncheon”: The St. Petersburg Times today contains an article that begins, “Threats of violence during the Terri Schiavo case have prompted the cancellation of a Florida Supreme Court justice’s speech to the Suncoast Tiger Bay Club.”

Posted at 7:10 AM by Howard Bashman

“Let Ten Commandments debate begin: The framers of our Constitution did not draw upon the Bible to shore up our legal system.” Sol Wachtler and David Gould have this op-ed today in Newsday.

Posted at 7:02 AM by Howard Bashman

“No pauper’s burial for Chicago killer; Funeral director will put to rest man who slayed husband, wife of judge”: This article appears today in The Milwaukee Journal Sentinel.

And The Peoria Journal Star today contains an article headlined “Panel: Judges deserve more protection” that begins, “The Senate Appropriations Committee has approved $11.9 million to provide more protection for federal judges in their homes and courthouses in a move prompted by the recent murders of a federal judge’s relatives in Chicago.”

Posted at 7:00 AM by Howard Bashman