How Appealing

Monday, March 19, 2007

“White House searching for Gonzales’ replacement, source says”: McClatchy Newspapers provide a report that begins, “The White House began floating the names of possible replacements for Attorney General Alberto Gonzales Monday as the Justice Department released more internal documents related to the firings of eight U.S. attorneys last year. One prominent Republican, who earlier had predicted that Gonzales would survive the controversy, said he expected both Gonzales and Deputy Attorney General Paul McNulty to resign soon.”

Posted at 8:27 PM by Howard Bashman

“Detainee Alleges He Was Beaten in U.S. Custody”: The New York Times provides a news update that begins, “David Hicks, the first detainee to be formally charged under the new military tribunal rules at Guantanamo Bay, Cuba, has alleged in a court document filed here that during nearly five years in American custody he was beaten several times during interrogations and witnessed the abuse of other prisoners.”

Posted at 7:30 PM by Howard Bashman

“‘Bong Hits 4 Jesus’ case brought before Supreme Court”: Stephen Henderson of McClatchy Newspapers provides this report.

Greg Stohr of Bloomberg News reports that “Justices Question Student’s Right to Display ‘Bong Hits’ Sign.”

Bill Mears of reports that “High court hears ‘Bong hits 4 Jesus’ case.”

And BBC News reports that “US high court mulls free speech; The US Supreme Court is considering its first major test of students’ free speech rights in two decades.”

Posted at 7:28 PM by Howard Bashman

“Court: No Class-Action in Enron Suit.” The Associated Press provides a report that begins, “A federal appeals court ruled Monday that Enron Corp. shareholders cannot proceed with a class-action lawsuit against investment banks for their alleged role in the accounting fraud that led to Enron’s collapse. The 5th U.S. Circuit Court of Appeals opinion reversed a ruling by U.S. District Judge Melinda Harmon in Houston, who had said shareholders could sue as a class.”

The U.S. Court of Appeals for the Fifth Circuit has not yet posted the decision to its web site. If I receive a copy of the decision via email before it becomes available over the court’s own site, I will post it. Update at 5:40 p.m.: I’ve posted the opinion online at this link.

Posted at 5:30 PM by Howard Bashman

Beware the “see also” cite: Today’s oral argument in Wilkie v. Robbins, No. 06-219 — also known as not the “Bong Hits 4 Jesus” case — contained a humorous exchange between Justice Stephen G. Breyer and Laurence H. Tribe, arguing as counsel for respondents.

The exchange began when Justice Samuel A. Alito, Jr. remarked that Tribe’s merits brief did not appear to cite very much authority for a certain point. Tribe remarked that there were two older New York State cases that provided support for the proposition. Justice Breyer then chimed in to note that one of the two cases appeared in Tribe’s merits brief following a “see also” cite, which — in Justice Breyer’s view — “is a sign to me there’s something wrong with that case.” After Tribe responded that, to the contrary, it was a really, really good case (to paraphrase), Justice Breyer asked, “Why did you say ‘See Also’?” To which Tribe responded, “I don’t remember.” (The exchange appears in the oral argument transcript at pages 45-46).

The lesson of today’s oral argument appears to be that one should be prepared not only to defend the cases cited in the brief but also The Bluebook signals that precede the citations to those cases. In any event, at least the debate did not turn to the value of the “cf.” signal, which, as Seventh Circuit Judge Terence T. Evans noted in an opinion from 2003 (at page 5), “is often only revealed in the eye of the beholder.”

Posted at 5:05 PM by Howard Bashman

“Bong Hits 4 SCOTUS Oral Argument Transcripts”: The U.S. Supreme Court has now posted online today’s oral argument transcripts.

The transcript of today’s oral argument in Morse v. Frederick, No. 06-278 — also known as the “Bong Hits 4 Jesus” case — can be accessed here.

And the transcript of today’s oral argument in Wilkie v. Robbins, No. 06-219 — also known as not the “Bong Hits 4 Jesus” case — can be accessed here.

Posted at 4:42 PM by Howard Bashman

“Time to Rethink the FBI”: Seventh Circuit Judge Richard A. Posner has this op-ed (pass-through link) today in The Wall Street Journal.

(N.B.: For the past week or so, these pass-through links have for me opened in an Internet Explorer web browser page that contains lots of error messages. Using a Netscape browser, however, these error messages remain toward the top of the page, while the entire text of the op-ed remains unobscured toward the bottom of the page.)

Posted at 3:28 PM by Howard Bashman

Today’s ruling of the U.S. Court of Appeals for the Third Circuit in El v. SEPTA: Philadelphia natives may be saddened to learn that this lawsuit, despite its name, does not consist of Market-Frankford El (cute logo here) suing the rest of SEPTA.

Rather, El is the last name of plaintiff Douglas El, who has filed suit under Title VII of the Civil Rights Act of 1964 claiming that SEPTA “unnecessarily disqualifies applicants because of prior criminal convictions–a policy that he argues has a disparate impact on minority applicants because they are more likely than white applicants to have convictions on their records.” Today’s Third Circuit ruling affirms the entry of summary judgment in favor of SEPTA.

Posted at 3:18 PM by Howard Bashman

“Smearing the U.S. attorneys: New details show the Bush administration’s ‘document dump’ gives a misleading rationale for the firing of two U.S. attorneys.” Mark Follman has this essay today at

Posted at 2:35 PM by Howard Bashman

“High court asks Bush admin. view on tamoxifen case”: Reuters provides a report that begins, “The U.S. Supreme Court asked the Bush administration on Monday to give its opinion on whether the court should review a case challenging patent settlements between major drugmakers and their generic rivals.”

Posted at 2:30 PM by Howard Bashman

“We now hold … that a public official may appeal from an order conclusively denying a motion (based on qualified immunity) seeking summary judgment, whether or not the official has appealed from an order denying a motion to dismiss the complaint, and whether or not the motion for summary judgment rests on new legal or factual arguments.” Here’s even one more reason to admire the U.S. Court of Appeals for the Seventh Circuit — if the court doesn’t initially reach the correct result, it remains willing to do so on reconsideration.

Back on December 20, 2006, I had a post titled “Chief Judge Easterbrook versus Circuit Judge Posner” commenting on a decision issued that day in which Easterbrook had written the majority opinion and Posner had written a dissent. At the conclusion of my post, I wrote that “I think I agree with Judge Posner’s dissent.”

Today, the very same three-judge Seventh Circuit panel issued a unanimous decision on panel rehearing in which the court reaches the holding quoted in the above bolded title of this post, which is essentially the position for which Judge Posner argued in his earlier dissent.

Posted at 12:15 PM by Howard Bashman

“Schumer Faulted on Probe; GOP Solons See Conflict on Attorneys”: This article appears today in The New York Sun.

The Associated Press reports that “White House Hopes Gonzales Will Stay On.”

At her “Legalities” blog, ABC News correspondent Jan Crawford Greenburg (who spent this weekend in Philadelphia in connection with this National Constitution Center event) has a post titled “A ‘pink-slip’ slip-up.”

And today in The Examiner of Washington, DC, George W. Liebmann has an op-ed entitled “Authority for authority’s sake.”

Posted at 11:28 AM by Howard Bashman

“Detainee Confesses to USS Cole Bombing”: The AP provides a report that begins, “A Pentagon transcript says Waleed Mohammed Bin Attash, a suspected mastermind of the bombing of the USS Cole, has confessed during a military hearing at Guantanamo Bay, Cuba.”

Update: The Pentagon has posted the transcript online at this link.

Posted at 10:55 AM by Howard Bashman

Unusual entry on today’s U.S. Supreme Court Order List: In the case captioned Credit Suisse Securities (USA) LLC v. Billing, No. 05–1157, the Court entered the following order today:

Having been advised by Justice Kennedy that he now realizes that he should have recused himself from participation in this case, and does now recuse himself, the Court vacates its order of Thursday, December 7, 2006. The Court has reconsidered the petition for certiorari, and the petition is granted. The Chief Justice and Justice Kennedy have not participated in the vote to withdraw the order of December 7, 2006, or in the instant reconsideration of the petition for certiorari.

The order of December 7, 2006, which today’s order vacates, likewise granted certiorari. The December 7, 2006 order stated:

The motion of NYSE Group, Inc. for leave to file a brief as amicus curiae is granted. The motion of National Association of Securities Dealers, Inc. for leave to file a brief as amicus curiae is granted. The motion of Securities Industry Association, et al. for leave to file a brief as amici curiae is granted. The petition for a writ of certiorari is granted. The Chief Justice took no part in the consideration or decision of these motions and this petition.

Presumably, because a total of seven Justices took part in the recent reconsideration, only three votes were necessary to grant review. The case remains scheduled for oral argument on March 27, 2007. Here’s hoping that the parties did not obsess over trying to win Justice Kennedy’s sometimes crucial swing vote in their merits briefing.

Posted at 10:25 AM by Howard Bashman