“Court orders New Trial for Doctor”: The Associated Press provides a report that begins, “A doctor convicted of drug trafficking for prescribing massive doses of OxyContin and other painkillers to his patients will get a new trial.”

You can access today’s ruling of the U.S. Court of Appeals for the Fourth Circuit at this link.

“Limits of Executive Power”: Today’s broadcast of the public radio program “On Point” contained this lengthy segment (listen in either RealPlayer or Windows Media format) featuring Law Professors Laurence H. Tribe and Douglas W. Kmiec.

“Stock Conflict Cited in 9th Circuit Judge’s Trademark Rulings”: Last month, law.com posted online an article that begins, “After losing two trademark cases, an attorney for a software company is trying to get the rulings thrown out because one of the 9th Circuit judges hearing the case apparently had a financial conflict. Judge Harry Pregerson wrote opinions favoring Time Warner in two cases in which M2 Software fought the multimedia giant over the trademark to the name ‘M2.’ Mark Pettinari, representing M2 of Los Angeles, says Pregerson owned stock in Time Warner at the time he heard the cases and issued the rulings.”

Today, the U.S. Court of Appeals for the Ninth Circuit posted online two separate opinions (available here and here) from Circuit Judge Harry Pregerson in which he explains why he was not required to recuse in either case.

“Why Should We be ‘Boxed In’ by the Constitution and Laws of the United States?” At the “Balkinization” blog, Marty Lederman has a post that begins, “In today’s Wall Street Journal, Judge Richard Posner laments the fact that the federal courts are available to adjudicate whether the President’s chosen methods of fighting the war on terror are consistent with the Constitution and laws of the United States.”

First Circuit holds that federal Visual Artists Rights Act of 1990 does not protect site-specific art: You can access today’s ruling of the U.S. Court of Appeals for the First Circuit at this link.

“Graham showed courage”: This past Sunday’s issue of The Herald of Rock Hill, South Carolina contained an editorial that begins, “Sen. Lindsey Graham, R-S.C., is taking heat from some critics for his role in the rejection of William J. ‘Jim’ Haynes as a candidate for a seat on the 4th Circuit Court of Appeals.”

“The Constitution vs. Counterterrorism”: Today in The Wall Street Journal, Seventh Circuit Judge Richard A. Posner has an op-ed (pass-through link) that begins, “Last week a federal district judge in Detroit ruled that the National Security Agency’s conduct of electronic surveillance outside the boundaries of the Foreign Intelligence Surveillance Act is illegal. As a judge I cannot comment on the correctness of her decision. But I can remark on the strangeness of confiding so momentous an issue of national security to a randomly selected member of the federal judiciary’s corps of almost 700 district judges, subject to review by appellate and Supreme Court judges also not chosen for their knowledge of national security.”

“Appeals court refuses to reinstate ‘top-two’ primary in Washington”: The Associated Press provides a report that begins, “A three-judge panel of the 9th Circuit U.S. Court of Appeals on Tuesday refused to reinstate Washington’s ‘top-two’ primary system, saying it infringes on the rights of political parties to choose their own nominees.”

You can access today’s ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.

Update: Law Professor Rick Hasen offers his initial thoughts on the ruling at his “Election Law” blog.

“Is a Federal Tax on Damages for Emotional Distress Unconstitutional?” Marty Lederman has this post at the “Balkinization” blog questioning the soundness of today’s D.C. Circuit ruling.

And “TaxProf Blog” offers these thoughts on the ruling.

“Government suffers setback as Padilla terror count tossed; The U.S. government’s terrorism case against former ‘enemy combatant’ Jose Padilla and two other Muslim codefendants suffered a major setback in federal court in Miami”: This article appears today in The Miami Herald.

“Constitutional Limits on the Power to Tax”: At “The Volokh Conspiracy,” Orin Kerr has this post about today’s D.C. Circuit ruling, which I blogged about earlier here.

And additional coverage of the ruling can be accessed here from Paul Mollica’s “Daily Developments in EEO Law.”

“If one imagines the federal judiciary as running a vast, multi-topic blog – which is not a bad way to view Anglo-American common-law adjudication – the Nigerian-barge ruling would be the latest posting in a lively thread that’s been going on for more than a generation.” That sentence comes from an article headlined “Redefining fraud: Judicial opining; Reversals in the ‘Nigerian barge case’ won’t help Jeff Skilling; But they revive a debate about what’s fraud and what isn’t” published in the September 4, 2006 issue of Fortune magazine.

“The record is clear that South Dakota’s history of discrimination against Native-Americans has limited their ability to succeed in the state political process. The vestiges of this discrimination remain, dampening Native-American interest in South Dakota politics and affecting the ability of Native-Americans to register, to vote, and to participate in the electoral process.” A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit today issued a decision affirming a federal district court’s ruling that South Dakota’s 2001 legislative redistricting violated Section 2 of the Voting Rights Act by packing District 27 with Native-Americans at the expense of District 26.

“Court reinstates former athletic director’s discrimination suit”: The Associated Press provides this report. My earlier coverage appears here.

I’m too sexy for my billboard: The Kansas City Star reports today that “Sex-ad billboards will stay; A court knocks down a Missouri law banning adult-oriented signs near state highways.”

The St. Louis Post-Dispatch reports today that “Court rejects billboard law.”

And The Associated Press reports that “Court KOs Billboard Law.”

My earlier coverage appears at this link.

“Two Pep Boys Heirs Booted From Trust”: Yesterday evening, The Legal Intelligencer posted online this news update (free access) written by Asher Hawkins. As noted in the final version of the article (subscription required) published in today’s issue of that newspaper, I’m serving as appellate co-counsel for those two individuals.

“Blogging for Dollars: It’s not just a hobby — some small sites are making big money; Here’s how to turn your passion into an online empire.” This article appears in the September 2006 issue of Business 2.0 magazine.

The D.C. Circuit orders the Federal Bureau of Investigation to use Google to determine whether the speakers on an audiotape whose production an author seeks under the Freedom of Information Act are dead or alive: You can access today’s ruling at this link.

On page 17 of today’s opinion, Circuit Judge Merrick B. Garland writes for a unanimous three-judge panel:

But if that is so, one has to ask why — in the age of the Internet — the FBI restricts itself to a dead-tree source with a considerable time lag between death and publication, with limited utility for the FBI’s purpose, and with entries restricted to a small fraction of even the “prominent and noteworthy”? Why, in short, doesn’t the FBI just Google the two names? Surely, in the Internet age, a “reasonable alternative” for finding out whether a prominent person is dead is to use Google (or any other search engine) to find a report of that person’s death. Moreover, while finding a death notice for the second speaker — the informant — may be harder (assuming that he was not prominent), Googling also provides ready access to hundreds of websites collecting obituaries from all over the country, any one of which might resolve that speaker’s status as well. See, e.g., http://www.legacy.com (hosting the obituary sites of more than 275 newspapers, including three Louisiana papers); http://www.obituarycentral.com (containing a directory of links to online obituaries and death notices in every state).

Notably, however, today’s opinion does not require the FBI to use Wikipedia to determine whether the speakers on the tape are dead or alive.

D.C. Circuit declares a provision of the federal tax code unconstitutional as applied: Today’s ruling, by a unanimous three-judge panel, holds that “insofar as §104(a)(2) permits the taxation of compensation for a personal injury, which compensation is unrelated to lost wages or earnings, that provision is unconstitutional.” You can access the complete ruling at this link.

According to today’s opinion, written by Chief Judge Douglas H. Ginsburg, “The Sixteenth Amendment simply does not authorize the Congress to tax as ‘incomes’ every sort of revenue a taxpayer may receive.” The opinion goes on to explain:

As we have seen, it is clear from the record that the damages were awarded to make Murphy emotionally and reputationally “whole” and not to compensate her for lost wages or taxable earnings of any kind. The emotional well-being and good reputation she enjoyed before they were diminished by her former employer were not taxable as income. Under this analysis, therefore, the compensation she received in lieu of what she lost cannot be considered income and, hence, it would appear the Sixteenth Amendment does not empower the Congress to tax her award.

And the opinion concludes

In sum, every indication is that damages received solely in compensation for a personal injury are not income within the meaning of that term in the Sixteenth Amendment. First, as compensation for the loss of a personal attribute, such as well-being or a good reputation, the damages are not received in lieu of income. Second, the framers of the Sixteenth Amendment would not have understood compensation for a personal injury — including a nonphysical injury — to be income. Therefore, we hold §104(a)(2) unconstitutional insofar as it permits the taxation of an award of damages for mental distress and loss of reputation.

This appears to be a significant loss for the federal government, and it will be interesting to see the extent to which other circuits will follow today’s ruling.

Finally, while today’s ruling contains a substantial discussion of the history of what constitutes income for purposes of federal tax law, the opinion will also be of interest to those who study the history of the footnote, as all footnotes contained in the opinion are designated using a single asterisk (*).

“State Supreme Court Rejects Appeal of Caregivers Seeking $450,000 Inheritance; Justices rule that helpers may not benefit from changes in wills made by dependent elderly in their final days”: This article appears today in The Los Angeles Times.

You can access yesterday’s ruling of the Supreme Court of California at this link.

“DEA’s Khat Sting Stirs Up Somali ‘Cultural Clash’; The stimulant is widely used in some countries; But in America, it has resulted in 44 arrests”: Sam Howe Verhovek has this article today in The Los Angeles Times.

“No Skid Row Accord for City, ACLU; More talks are slated in an effort to resolve a suit over arrests of homeless who camp on sidewalks”: This article appears today in The Los Angeles Times.

“A Law Unto Herself: The criminal defense attorney is star-struck, young and unorthodox; But don’t be fooled; She’s also Ivy League, savvy and successful.” Today in The Los Angeles Times, Maura Dolan has this profile of attorney Allison Margolin. Allison’s blog can be accessed here. [Update: Because that blog includes an image of a partially naked female, a reader emails to suggest that I note that the blog’s link is potentially not safe for work.]

“Teams woo female fans with freebies, but a lawyer cries foul; Dispute’s outcome could have ramifications for Major League Baseball”: The Boston Globe contains this article today.

“Concern Mounts as Bacteria Resistant to Antibiotics Disperse Widely”: This article appears today in The New York Times.

“Prosecutor Wins Right To Damages”: The New York Sun today contains an article that begins, “A federal appeals court has ruled in favor of a former Brooklyn prosecutor who was demoted after he said his borough was the best place for a prosecutor to work because ‘we’ve got more dead bodies per square inch than anybody else.'”

My earlier coverage appears at this link.

“A Victory for Cleaner Air”: This editorial appears today in The New York Times.

“Judge Orders Justice Department Investigation of Leak to CBS Report”: Josh Gerstein has this article today in The New York Sun.

“Misconceiving Reproductive Rights: The Crucial Difference Between ‘Pro-Choice’ and ‘Pro-Abortion.'” Sherry F. Colb has this essay online today at FindLaw.

“Judge Throws Out Charges in Padilla Case”: This article will appear Tuesday in The New York Times.

And law.com reports that “Miami Federal Judge Tosses Lead Charge in Padilla Terror Conspiracy Case.”

The Tenth Circuit demonstrates one method for dealing with the prospective-only flaw found in proposed Federal Rule of Appellate Procedure 32.1 — pretend the flaw doesn’t exist: Proposed Federal Rule of Appellate Procedure 32.1, as approved by both the Judicial Conference of the United States and the U.S. Supreme Court, only requires federal appellate courts to allow citation to unpublished and non-precedential federal judicial opinions issued on or after January 1, 2007.

In March 2006, I wrote an “On Appeal” column for law.com criticizing the proposed rule’s prospective-only nature. The U.S. Court of Appeals for the Tenth Circuit today posted online its proposed rules effective January 1, 2007. Both those proposed rules and the explanatory memorandum accompanying them ignore that proposed FRAP 32.1 contains the prospective-only limitation by omitting the rule’s prospective-only language.

The Tenth Circuit is currently a jurisdiction that permits, but discourages, citations to its own non-precedential rulings. It would be useful if the new Tenth Circuit local rule addressed whether that discouragement will continue to apply to that court’s non-precedential opinions issued before January 1, 2007. In any event, I anticipate that the court will correct its omission of a portion of proposed FRAP 32.1 in the very near future.

Sailing takes him away, but paying federal employment taxes does nothing for him: The U.S. Court of Appeals for the Fifth Circuit today issued its ruling in Christopher Cross, Inc. v. United States.

[Apologies in advance should it turn out that this case involves a trucking company rather than the singer, whose web site’s home page is here]

Some good news for “Best” and “Super” lawyers in New Jersey: The Newark (N.J.) Star-Ledger on Saturday published an article headlined “Court gets into battle on lawyers’ advertising” that begins, “The state Supreme Court yesterday weighed in on the ongoing battle in the New Jersey’s legal community over attorney advertising. The court put the brakes on a ruling last month by the Committee on Attorney Advertising that prohibits lawyers from touting their inclusion on two lists — ‘Super Lawyers’ and ‘Best Lawyers in America.'”

And The Associated Press reports that “N.J. high court gives ‘Super Lawyers’ temporary reprieve.”

My earlier coverage can be accessed here and here. In the interest of full disclosure, I have been designated a Pennsylvania “Super Lawyer” in the appellate category in 2005 and 2006, and in 2005 the Pennsylvania Super Lawyers magazine contained an article about me written by that publication’s staff.

“The Novelist and His Old Boss Meet Again, in the Courtroom”: On July 13, 2004, The New York Times published an article that begins, “According to Robert C. Reuland’s lawyer, his rights were violated when the Brooklyn district attorney, Charles J. Hynes, fired him as an assistant district attorney after he made a few incendiary comments to a magazine writer. But according to a lawyer representing Mr. Hynes, Mr. Reuland is a liar with a ‘condescending, arrogant attitude’ who ‘acts like a spoiled child’ and had no business being a prosecutor.”

Ultimately, as reported in a NYTimes article from September 2004 headlined “Ex-Prosecutor Can Collect Jury Award, Judge Rules,” a federal court jury awarded $30,000 in favor of the former prosecutor turned novelist. The Associated Press’s report on the jury’s verdict was headlined “Mixed verdict in former N.Y. prosecutor’s free-speech suit.”

Today, a divided three-judge panel of the U.S. Court of Appeals for the Second Circuit issued an opinion affirming the jury verdict.

The NYTimes in July 2004 published a profile of the novelist headlined “Caught Between the Law and the Written Word.” And the novelist’s web site can be accessed here.

“Judge throws out terror charge in Padilla case”: The Miami Herald provides a news update that begins, “The U.S. government’s high-profile terror case against Jose Padilla and two other Muslims has suffered another serious setback as their Miami trial looms in January.”

And CNN.com reports that “Judge drops Padilla terror charge; Prosecutors told to choose between two remaining counts.”

You can access last Friday’s ruling of the U.S. District Court for the Southern District of Florida at this link. The “Southern District of Florida Blog” provides this coverage of the ruling.