How Appealing

Wednesday, March 28, 2007

“Gonzales Draws Strong Criticism of Prosecutors”: Thursday’s issue of The New York Times will contain this article, along with articles headlined “E-Mail Shows Rove’s Role in Fate of Prosecutors” and “Former Key Aide Testifies Today on Gonzales’s Statements.”

The Washington Post on Thursday will report that “Ex-Aide to Say Others at Justice Knew of Firings; Department Apologizes to Hill For Any ‘Inaccurate’ Information.”

McClatchy Newspapers report that “Justice Dept. apologizes for inaccuracies in early letter to Democrats.”

And this evening’s broadcast of NPR’s “All Things Considered” contained an audio segment entitled “Gonzales’ Ex-Deputy to Testify on Attorney Firings” (RealPlayer required).

Posted at 11:40 PM by Howard Bashman

“State Senate Confirms Fitzgerald As Temporary High Court Justice”: Asher Hawkins of The Legal Intelligencer provides a news update (free access) that begins, “Philadelphia Common Pleas Trial Division Administrative James J. Fitzgerald III has been confirmed by the state Senate to temporarily fill the Pennsylvania Supreme Court seat left vacant late last year when former justice Sandra Schultz Newman left the bench to join Cozen O’Connor.”

For those who support so-called “merit selection” rather than popular election of judges, this news means that a whopping 28.57 percent of the Justices now serving on the Supreme Court of Pennsylvania were appointed rather than elected to serve on that court.

Posted at 3:15 PM by Howard Bashman

“This seemingly straightforward appeal of a denial of disability benefits presents difficult issues involving our standard of review in cases arising under the Employee Retirement Income Security Act. In fact, the issues are so difficult that this case has generated three opinions.” So begins a decision that the U.S. Court of Appeals for the First Circuit issued today.

The two active First Circuit judges in the panel, although disagreeing over how the appeal should be resolved on the merits, find common ground in calling for the First Circuit to consider the question en banc. The third judge on the panel, Senior Circuit Judge Bruce M. Selya, does not agree that en banc review is merited. He explains:

[E]n banc proceedings tend to be notoriously wasteful of scarce judicial resources. There seems to me to be little point in trading a workable and battle-tested standard of review for yet another plunge into the vortex of en banc consideration — a plunge that threatens to splinter the court and to make the standard of review less transparent. Even if one assumes, for argument’s sake, that our standard of review could profit from an attempted clarification with respect to “structural conflict” cases, the unevenness in the decisions of the various courts of appeals strongly suggests that any such undertaking should be left to the Supreme Court (when and if the Justices deem the time propitious).

As a Senior Circuit Judge, Selya does not get a vote on whether to rehear this case en banc, but he could elect to participate in an en banc rehearing if one is granted in this case.

Posted at 2:57 PM by Howard Bashman

“The American workplace would be a seething cauldron if workers could with impunity pepper their employer and eventually the EEOC and the courts with complaints of being offended by remarks and behaviors unrelated to the complainant except for his having overheard, or heard of, them.” So writes Circuit Judge Richard A. Posner on behalf of a unanimous three- judge panel of the U.S. Court of Appeals for the Seventh Circuit today.

Today’s opinion, replete with discussions of “cat rape,” Avon products, and a manager’s having referred to a female employee other than the plaintiff as a “fat ass,” concludes:

The American workplace would be a seething cauldron if workers could with impunity pepper their employer and eventually the EEOC and the courts with complaints of being offended by remarks and behaviors unrelated to the complainant except for his having overheard, or heard of, them. The pluralism of our society is mirrored in the workplace, creating endless occasions for offense. Civilized people refrain from words and conduct that offend the people around them, but not all workers are civilized all the time. Title VII is not a code of civility.

You can access the complete ruling at this link.

Posted at 1:22 PM by Howard Bashman

“The YouTube Defense: Human rights go viral.” Online at Slate, Andrew K. Woods has a jurisprudence essay in which he writes, “During John Roberts’ and Samuel Alito’s recent confirmation hearings, senators and pundits debated whether the justices ought to try to gauge public sentiment. After all, critics say, the point of an unelected judiciary is to ensure fidelity to the Constitution, regardless of mass sentiment. In practice, however, judges (especially Supreme Court justices) have enormous discretion in how to resolve legal questions. And in our culture of red alerts and public panic, judges naturally tend to privilege security over individual rights.”

Posted at 11:50 AM by Howard Bashman

“Judge Dismisses Lawsuit Against Rumsfeld”: The Associated Press provides a report that begins, “Former Defense Secretary Donald H. Rumsfeld cannot be tried on allegations of torture in overseas military prisons, a federal judge said Tuesday in a case he described as ‘lamentable.’ U.S. District Judge Thomas F. Hogan threw out a lawsuit brought on behalf of nine former prisoners in Iraq and Afghanistan. He said Rumsfeld cannot be held personally responsible for actions taken in connection with his government job.”

And Reuters reports that “Judge dismisses Rumsfeld torture lawsuit.”

You can access yesterday’s ruling of the U.S. District Court for the District of Columbia by clicking here (4.5 MB PDF file).

Posted at 11:40 AM by Howard Bashman

“Taxpayer Files Reply Brief in Murphy“: This post, providing online access to the reply brief, appears today at the “TaxProf Blog.” This case is pending on panel rehearing before the U.S. Court of Appeals for the D.C. Circuit. In its now-vacated original ruling, the three-judge panel held 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.”

My coverage of the panel’s original ruling, which issued on August 22, 2006, can be accessed here.

Posted at 9:23 AM by Howard Bashman

“Tax Cheat Escapes $100 Million Repayment”: The Associated Press provides a report that begins, “Poorly written Justice Department documents cost the federal government more than $100 million in what was supposed to have been the crowning moment of the biggest tax prosecution ever.”

And The Washington Post reports that “Mogul Sentenced to 9 Years For Tax Evasion and Fraud.”

Posted at 9:10 AM by Howard Bashman

“Sex change prompts alimony fight”: The St. Petersburg Times today contains an article that begins, “In a case that could set precedent for transgendered individuals, a Seminole man asked a Pinellas circuit judge Tuesday to set aside his alimony requirements because his ex-wife is now a man.”

And The Associated Press reports that “Man Says Sex Change Should End Alimony.”

Posted at 8:47 AM by Howard Bashman

“Gonzales TV Appearance Sheds No Light on Firings”: This article appears today in The Washington Post, along with an article headlined “On the Firing Line: D. Kyle Sampson was a team player; Tomorrow, Alberto Gonzales’s former chief of staff will tell a Senate panel who called the shots.”

The Chicago Tribune reports today that “Gonzales bolts Chicago briefing.” The newspaper also contains an editorial entitled “Gonzales is on a thin branch.”

And The Washington Times reports that “Law firm to help in Justice inquiry.”

Posted at 8:18 AM by Howard Bashman

“New Drive Afoot to Pass Equal Rights Amendment”: The Washington Post today contains a front page article that begins, “Federal and state lawmakers have launched a new drive to pass the Equal Rights Amendment, reviving a feminist goal that faltered a quarter-century ago when the measure did not gain the approval of three-quarters of the state legislatures. The amendment, which came three states short of enactment in 1982, has been introduced in five state legislatures since January. Yesterday, House and Senate Democrats reintroduced the measure under a new name — the Women’s Equality Amendment — and vowed to bring it to a vote in both chambers by the end of the session.”

And The Washington Times reports today that “Democrats revive efforts for ERA.”

Posted at 8:12 AM by Howard Bashman

“The Libby Precedent: Why government officials prefer to take the Fifth.” The Wall Street Journal contains this editorial (free access) today.

Posted at 8:10 AM by Howard Bashman

“Failures at FBI Acknowledged; Mueller Accepts Criticism, Proposes Alternative to Controversial ‘Letters'”: This article appears today in The Washington Post.

The New York Times reports today that “Senators Cite F.B.I. Failures as Chief Promises Change.”

The Los Angeles Times reports that “FBI has some explaining to do; Senators question the bureau’s director about abuses of power; He urges them not to gut a Patriot Act provision.”

USA Today contains articles headlined “FBI chief lobbies for national security letters; In wake of misuse, panel greets plea with skepticism” and “Mueller says U.S. attorneys’ firings didn’t affect cases.”

The Washington Times reports that “Senate Judiciary panel questions FBI competence.” In addition, Gary Aldrich has an op-ed entitled “Patriot Act debacle.”

McClatchy Newspapers report that “FBI didn’t mean to break the law, Mueller says.”

The Atlanta Journal-Constitution contains an editorial entitled “Snoops out of control: Lawmakers who let FBI chip away at privacy rights shouldn’t be shocked by its use of a sledgehammer.”

And The St. Petersburg Times contains an editorial entitled “It’s time to rein in the FBI’s snooping.”

Posted at 8:07 AM by Howard Bashman

“The Man Who Would Move the Barnes”: The New York Times today contains this article about the Barnes Foundation. The article reports that “The gallery’s relocation to a new building on the Benjamin Franklin Parkway, allowed by a December 2004 court decision that overruled the collector’s express mandate on the ground of financial exigency, remains controversial. The move, which is scheduled for late 2009 or 2010, is opposed by a coalition that includes Merion residents, Barnes students and alumni and suburban legislators. Many art critics have also condemned it.”

Posted at 7:50 AM by Howard Bashman

“Result of Military Trial Is Familiar to Civilians”: This article appears today in The New York Times, along with an article headlined “Australian Detainee’s Life of Wandering Ends With Plea Deal.”

The Los Angeles Times today contains an article headlined “Mixed reaction to Hicks’ plea bargain; Some call the first such trial at Guantanamo a success; others cite politics and pressure in the Australian terrorism suspect’s deal.”

And The Associated Press reports that “Guantanamo Plea Leaves Questions.”

Posted at 7:45 AM by Howard Bashman