How Appealing

Thursday, May 5, 2005

“Grand jury indicts Brian Nichols”: The Atlanta Journal-Constitution provides a news update that begins, “Fulton County District Attorney Paul Howard announced Thursday his intention to seek the death penalty against accused courthouse gunman Brian Nichols moments after a grand jury indicted Nichols in four murders.”

Posted at 10:40 PM by Howard Bashman

“Former Prosecutor Accuses Tribune of Libel”: The AP reports here that “A former prosecutor said Thursday that the Chicago Tribune libeled him in a 1999 story on official misconduct, arguing that the newspaper knowingly published a factual error as part of a ‘veritable witch hunt’ against him.”

Posted at 4:10 PM by Howard Bashman

“Court denies Cobb evolution request”: The Atlanta Journal-Constitution today contains an article that begins, “A federal appeals court Wednesday denied a request by Cobb County to delay removing disclaimers about evolution from science textbooks this summer. The school system made the request while appealing a finding that the disclaimers, which call evolution ‘a theory, not a fact,’ are an unconstitutional endorsement of religion. No ruling on the appeal has been made.”

Posted at 2:44 PM by Howard Bashman

“State’s High Court To Hear Arguments About Ross’ Competency”: The Day of New London, Connecticut today contains an article that begins, “The state Supreme Court will hear arguments today on whether a lower trial court erred when it found serial killer Michael Ross competent to forgo his appeals and proceed to his execution.”

Posted at 2:08 PM by Howard Bashman

“Striptease is art like opera or ballet, an Oslo court has ruled in a victory for nightclub owners over Norway’s tax authorities.” Reuters provides this report.

Posted at 12:08 PM by Howard Bashman

A potentially very important habeas corpus development appears to be under consideration in the Ninth Circuit: Yesterday, a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an order which states:

At oral argument, the parties should be prepared to give an indication of their views regarding the question whether the standards that Congress has set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) — under which we may not grant habeas relief unless the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. sec. 2254(d)(1) — are constitutional in light of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and City of Boerne v. Flores, 521 U.S. 507, 536 (1997). Specifically, the parties should be prepared to give an indication of their views as to whether AEDPA unconstitutionally prescribes the sources of law that the Judicial Branch must use in exercising its jurisdiction and whether under the separation of powers doctrine this court should decline to apply the AEDPA standards in this case. See id.

Circuit Judge Stephen Reinhardt and Senior Circuit Judge John T. Noonan, Jr. joined in the order, while Senior Circuit Judge Ferdinand F. Fernandez noted that he “does not join in this order.”

I don’t know whether the U.S. Department of Justice has yet learned of this order until now, but I would imagine that it would want to participate in this debate either as an amicus or through intervention to defend the constitutionality of this important federal law.

Posted at 11:11 AM by Howard Bashman

The Federal Rules of Appellate Procedure are once again on the verge of being amended to allow citation to non-precedential rulings in all U.S. Courts of Appeals: Last month, as I first reported here, the Advisory Committee on Rules of Appellate Procedure once again approved proposed Federal Rule of Appellate Procedure 32.1, which would allow citation to non-precedential rulings in all U.S. Courts of Appeals.

The past ten months or so have been devoted to studying whether the objections raised by opponents of the proposed new rule have any empirical support. On April 14, 2005, the Federal Judicial Center issued a preliminary report titled “Citations to Unpublished Opinions in the Federal Courts of Appeals.” That report was the subject of discussion at last month’s Appellate Rules advisory committee meeting, and the report softened what little opposition to proposed Rule 32.1 exists on the Appellate Rules advisory committee.

I have just posted online the draft minutes of the last month’s Appellate Rules advisory committee meeting, and those draft minutes can be accessed at this link. The committee’s discussion and approval of proposed Rule 32.1 begins on page 8 of the PDF file containing the draft minutes.

Posted at 10:45 AM by Howard Bashman

It feels like Houston, Texas in late July: Despite the possible ban on sexy cheerleading under consideration in the Texas Legislature, I’m pleased to announce that I’ll be making a blog-related speaking appearance as the luncheon guest of the Houston Bar Association‘s Appellate Practice Section on Wednesday, July 27, 2005.

So as not to be spending nearly all of Wednesday on an airplane, I’ll be arriving in Houston on Tuesday afternoon. Conveniently, my hometown Philadelphia Phillies will also be in Houston Tuesday night battling the Astros, and plenty of great seats remain available at beautiful Minute Maid Park, which I look forward to visiting for the first time.

Posted at 10:15 AM by Howard Bashman

“Frist under fire as fight over nominations nears”: This article appears today in The Tennessean. reports that “Fortas Filibuster Doesn’t Resolve Nominee Fight.”

The News & Advance of Lynchburg, Virginia reports today that “Falwell making online effort to sway Senate.”

The Denver Post reports that “Focus stirs up both right, left.”

The Daily Sentinel of Grand Junction, Colorado reports that “Sen. Salazar remains mum on judicial nominees.”

In commentary, The Montgomery Advertiser contains an editorial entitled “Ignorance of system quite easy to exploit.”

In The Detroit News, columnist George Weeks has an essay entitled “State played key role in last judicial filibuster.”

In The Oregonian, columnist David Reinhard has an op-ed entitled “Anatomy of a legal smear: Justice Janice Rogers Brown.”

In The Arkansas Democrat-Gazette, Bradley R. Gitz has an op-ed entitled “Protecting judicial activism.”

And in The Minnesota Daily, Bryan Freeman has an op-ed entitled “Democrats forcing the ‘nuclear option’: There is no question as to why the ‘nuclear option’ has now become the Republicans’ ‘best option’ in the current atmosphere in the Senate.”

Posted at 7:10 AM by Howard Bashman

“Pay to strip ‘Confederate’ from dorm, court tells VU”: The Tennessean today contains an article that begins, “Vanderbilt University cannot remove the word ‘Confederate’ from a campus dorm called Confederate Memorial Hall, an appeals court has ruled.”

Posted at 6:50 AM by Howard Bashman

“Is the Solomon Amendment Constitutional? The Supreme Court Looks at the Law that Prohibits Federal Aid If a School Refuses to Permit Military Recruiters on Campus.” FindLaw commentator Marci Hamilton has this essay today.

Posted at 6:42 AM by Howard Bashman