How Appealing

Wednesday, February 1, 2006

Senate Panel Rebuffed on Documents on U.S. Spying”: Thursday’s edition of The New York Times will contain an article that begins, “The Bush administration is rebuffing requests from members of the Senate Judiciary Committee for its classified legal opinions on President Bush’s domestic spying program, setting up a confrontation in advance of a hearing scheduled for next week, administration and Congressional officials said Wednesday.”

Posted at 11:22 PM by Howard Bashman

“Alito Opposes Mo. Execution”: Gina Holland of The Associated Press provides a report that begins, “New Supreme Court Justice Samuel Alito split with the court’s conservative Wednesday night, refusing to let Missouri execute a death-row inmate contesting lethal injection. Alito, handling his first case, sided with inmate Michael Taylor, who had won a stay from an appeals court earlier in the evening. Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas supported lifting the stay, but Alito joined the remaining five members in turning down Missouri’s last-minute request to allow a midnight execution.”

And at “SCOTUSblog,” Lyle Denniston has a post titled “Alito’s first vote: splits with conservatives.” Lyle’s description at the end of his post of today’s ceremonial White House oath ceremony for Justice Samuel A. Alito, Jr. is definitely worth reading.

Posted at 10:20 PM by Howard Bashman

“What the hell happened? In 2004, a massive pro-choice rally shook Washington; Just two years later, feminists are reflecting on the failure to stop Alito and what a conservative Supreme Court will mean for women.” Rebecca Traister has this essay at

Posted at 10:10 PM by Howard Bashman

“Presumed Ignorant: Are the Enron jurors morons? Because the lawyers are certainly treating them that way.” Daniel Gross has this moneybox essay online at Slate. Gross writes of the prosecution’s opening statement, “It calls to mind Phil Hartman’s old Unfrozen Caveman Lawyer routine on Saturday Night Live: All your strange numbers confuse and scare me, but I do know one thing–those men are liars.”

Posted at 10:05 PM by Howard Bashman

“SG Files Amicus Brief in Texas Redistricting Case”: Rick Hasen, at his “Election Law” blog, provides this post containing a link to the amicus brief.

Posted at 5:15 PM by Howard Bashman

Whose wife is she? A written report at states, “Alito watched the Senate vote from the Roosevelt Room of the White House with President Bush and his wife, Martha-Ann Bomgardner.” If either Justice Alito or President Bush were female, or if President Bush had been mentioned last in the sentence, could have avoided this ambiguity.

Posted at 4:30 PM by Howard Bashman

“Ruling backs closed court; Israeli agents won’t testify before public”: The Chicago Tribune today contains an article that begins, “A federal judge on Tuesday agreed to close her courtroom when Israeli security agents testify at a hearing in March, rejecting the arguments of the Chicago Tribune and various advocacy groups that wanted the hearing open to the public. U.S. District Judge Amy St. Eve said that although the right to a public trial is important, the case of Muhammad Salah, who is accused of funding Mideast terrorists, presented special, overriding concerns.”

I have posted online at this link a copy of yesterday’s ruling by U.S. District Judge Amy J. St. Eve of the U.S. District Court for the Northern District of Illinois.

Posted at 4:10 PM by Howard Bashman

In the February 5, 2006 issue of The New York Times: Gazing into the crystal ball, a TimesSelect subscription allows me to predict that the upcoming issue of the Sunday Book Review will contain a review headlined “Consent of the Governed,” written by Law Professor Kathleen M. Sullivan, of Justice Stephen G. Breyer’s book, “Active Liberty: Interpreting Our Democratic Constitution.” Also, Malcolm Gladwell fans (and others) will find a profile of the author headlined “The Gladwell Effect.”

And in the newspaper’s Magazine section, Law Professor Noah Feldman will have an essay entitled “Deliberation Nation” that begins, “The public hearings that the Senate Judiciary Committee is scheduled to begin holding tomorrow are supposed to help determine whether the National Security Agency’s domestic spying program broke the law. But this is no ordinary trial.”

Posted at 3:25 PM by Howard Bashman

“Petitioner spent 12 years in prison for conduct that is not a crime.” So begins an opinion that Circuit Judge Alex Kozinski issued today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. And later in the opinion, Judge Kozinski writes, “Over the twelve years she spent in prison, Goldyn asserted her innocence seven times before three courts. Yet no court appears to have taken her argument seriously.” Until today, that is.

Posted at 2:20 PM by Howard Bashman

Give the new guy the Eighth Circuit: An order that the Supreme Court of the United States issued this morning assigns Justice Samuel A. Alito, Jr. as Circuit Justice for the U.S. Court of Appeals for the Eighth Circuit. For those wishing to compare and contrast, the previous line-up is here. Although Justice Alito did not wrest the Third Circuit away from Justice David H. Souter, Justices Anthony M. Kennedy and Clarence Thomas were reunited with their home circuits in a manner of speaking.

Posted at 11:10 AM by Howard Bashman

Punitive damages, appellate waiver, and giving the plaintiff the option of a new trial if she rejects the appellate court’s reduction of punitive damages: In a case that the U.S. Supreme Court had GVR’d for reconsideration in light of State Farm Mutual Automobile Insurance Co. v. Campbell, a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit today ruled by a vote of 2-1 that a $3 million punitive damages award against Chrysler Corporation and in favor of the widow of a man who was fatally injured in an automobile accident while driving a 1992 Dodge Ram club cab pickup truck was unconstitutionally excessive. The court accordingly reduced the punitive award to $471,258.26. You can access today’s ruling at this link.

Today’s ruling is noteworthy for three independent reasons. First, according to the lead opinion’s recitation of the case’s procedural history, Chrysler originally raised no constitutional challenge to the excessiveness of the $3 million punitive damages award in the district court before taking an appeal from the adverse judgment. Nevertheless, because Chrysler did raise such a challenge in its initial Sixth Circuit appeal, because the Sixth Circuit in that earlier appeal addressed the merits of the issue, and because the Supreme Court GVR’d the case for reconsideration of whether the punitive award was unconstitutionally excessive, the panel holds that the issue was not waived.

Second, today’s ruling is of interest because the panel divides 2-1 over whether the $3 million punitive award is unconstitutionally excessive. Each of the three judges on this all-female panel, in separate opinions, analyzed the issue differently. And in dissent, Circuit Judge Karen Nelson Moore concludes that the punitive award was not unconstitutionally excessive. Because the two judges in the majority consist of a visiting judge and a senior Sixth Circuit judge, the case may have a better than average chance of obtaining rehearing en banc should one or both of the parties request it.

Finally, the case is of interest because the majority gives the plaintiff the option of a new trial if she rejects the reduction in punitive damages. Other federal appellate courts have ruled that where a punitive damages award is held unconstitutionally excessive, it must be reduced to the maximum possible award that would not be unconstitutionally excessive, and therefore there is no reason to give the plaintiff the option of a new trial because it would be unlawful for the plaintiff to recover a larger punitive award at the new trial.

Posted at 10:40 AM by Howard Bashman

“Opening Arguments in the Trial of Ex-Enron Chiefs”: The New York Times contains this article today.

The Washington Post today contains a front page article headlined “Jurors Hear Two Tales of Enron’s Fall; Arguments Set Out in Former Executives’ Trial.”

The Los Angeles Times reports that “Defense Says Doubt, Not Greed, Hurt Enron.”

The Houston Chronicle contains articles headlined “Witness is expected to admit conspiracy“; “Stress no stranger to exec Koenig; Likely the first witness, he was supposed to keep Wall Street bullish“; and “For jury’s members, ignorance is bliss; Some have loose ties to Enron but say they aren’t familiar with case.” In addition, columnist Loren Steffy has an essay entitled “Enron’s philosophy of lies is what’s on trial here.”

The Dallas Morning News contains an article headlined “Who are the cheats, liars in Enron case? Accusations fly between prosecutors, defenders in opening statements.”

USA Today reports that “Enron defense opens with both barrels; prosecution’s more sedate.”

The Wall Street Journal contains an article headlined “Split Verdict on Selecting Juries Quickly” (free access).

And today’s broadcast of NPR‘s “Morning Edition” contained a segment entitled “Defense Lawyers Decry Charges in Enron Trial.”

Posted at 9:15 AM by Howard Bashman

“A Stark Division in Vote for Alito; He is confirmed, 58-42, nearly along party lines; Afterward, neither side is ready to back down”: This article appears today in The Los Angeles Times.

The Chicago Tribune today contains articles headlined “Alito now 2nd Bush justice; Roberts swears him in after partisan 58-42 Senate vote” and “Alito’s seating on court is the more telling event.” And Law Professor Steven Lubet has an op-ed entitled “On Alito: Oh, those woebegone Democrats.”

USA Today reports that “Alito joins high court after 58-42 vote; Confirmation is the closest since Thomas.”

The Newark (N.J.) Star-Ledger reports that “Alito joins Supreme Court after partisan Senate vote; Degree of minority opposition is historic.”

In The Houston Chronicle, Patty Reinert reports that “With Alito, high court could set new course; Newest justice is sworn in as pivotal cases on abortion and terrorism await.”

In The Pittsburgh Post-Gazette, Michael McGough reports that “Alito sworn in as 110th justice of Supreme Court.”

The Boston Globe reports that “Alito becomes nation’s 110th justice; Mostly partisan vote sends him to Supreme Court.”

In The Washington Post, Charles Lane reports that “Shift on the Bench Has Already Begun.”

The New York Daily News reports that “Divided Senate gives Alito seat on Supreme Court.”

The Washington Times reports that “Alito sworn in as 110th justice.”

The Denver Post reports that “Alito joins Supreme Court after divided Senate vote; New justice likely to shift rulings in more conservative direction.”

The Reno Gazette-Journal reports that “Alito sworn in as new justice.”

The Courier-Post of Cherry Hill, New Jersey reports that “In battle for abortion rights, Alito is hailed, dreaded.”

The Arizona Republic reports that “President thanks O’Connor for her service on court.”

The Arizona Daily Star contains an article headlined “O’Connor: from high court to UA classroom; Just-retired justice to teach a course at college of law.”

The Des Moines Register reports that “Iowa senators split their votes on new justice.”

The Portland (Me.) Press Herald reports that “Snowe, Collins consent on Alito.”

The Yale Daily News reports that “Partisan vote confirms Alito.”

The Columbia Missourian reports that “MU law scholars disagree on extent of Alito’s effect on court’s balance.”

The Badger Herald reports that “Justice Alito joins high court.”

The Collegian of Penn State University reports that “Reactions differ on Alito approval.”

And The Daily Princetonian provides a news update headlined “Alito ’72 sworn in as Supreme Court justice.”

Posted at 7:15 AM by Howard Bashman

“Bill on religious postings changed; House might display ‘In God We Trust'”: This article appears today in The Louisville Courier-Journal.

Posted at 7:00 AM by Howard Bashman

“High Court’s Recent Changes May Be Just First Act; A More Striking Shift Could Ensue If Any of the Court’s Four Liberal Justices Depart on Bush’s Watch”: Jess Bravin has this article (free access) today in The Wall Street Journal.

Posted at 6:55 AM by Howard Bashman

“Partial Birth Abortion Act Ruled Unconstitutional by U.S. Courts”: This article appears today in The New York Times.

Today in The Los Angeles Times, Henry Weinstein reports that “Two Courts Reject Ban on Abortion Procedure; Appeals panels find the law unconstitutional. New faces on the high court may ultimately help restore the prohibition, experts say.”

In The New York Sun, Josh Gerstein reports that “Abortion Cases Await, as Alito Accedes.”

In The San Francisco Chronicle, Bob Egelko reports that “‘Partial birth’ abortion ban held unconstitutional; Appeals courts in S.F. and N.Y. issue rulings hours apart.”

And in The Oakland Tribune, Josh Richman reports that “Partial-birth abortion ban struck down; Two courts, including 9th Circuit in S.F., rule federal law too broad.”

Posted at 6:54 AM by Howard Bashman