How Appealing

Friday, April 27, 2007

“AG releases lacrosse report”: The News & Observer of Raleigh, North Carolina provides a news update that begins, “State Attorney General Roy Cooper released a report today outlining how he and special prosecutors in his office concluded that three former Duke lacrosse players were innocent of the charges they battled for a year. The report highlights missteps in the early investigation and provides details that led Cooper to sharply criticize Durham District Attorney Mike Nifong as a rogue prosecutor.”

And The Los Angeles Times provides a news update headlined “Duke rape accuser was ‘impaired,’ report finds.”

You can access the North Carolina Attorney General’s Summary of Conclusions report at this link.

Posted at 11:23 PM by Howard Bashman

“C.I.A. Held Qaeda Leader in Secret Prison for Months”: The New York Times on Saturday will contain an article that begins, “The Central Intelligence Agency held a captured Qaeda leader in a secret prison since last fall and transferred him last week to the American military prison at Guantanamo Bay, Cuba, officials said Friday.”

The Washington Post on Saturday will report that “CIA Recently Held Terror Suspect.”

And The Los Angeles Times provides a news update headlined “Pentagon says it has custody of senior Al Qaeda figure; The Defense Department says he was captured and handed over to the CIA in late 2006 and has been providing critical information about Al Qaeda.”

Posted at 11:15 PM by Howard Bashman

Second Circuit isn’t quite yet ready to reject the challenge to the constitutionality of the federal Partial–Birth Abortion Ban Act of 2003 pending before that court: A divided three-judge panel of the Second Circuit today issued this unpublished order calling for letter briefs addressing the impact of the recent U.S. Supreme Court ruling rejecting essentially identical constitutional challenges to that same federal law.

Although the dissent from today’s order is undoubtedly correct in opining that there’s nothing that the parties can say in reaction to last week’s SCOTUS ruling that would alter the outcome of the Second Circuit case at this point, it does appear that the Second Circuit is merely following its usual standard procedure in giving the parties a chance to comment before taking action. It is also worth noting that the author of today’s order was the more reluctant of the two votes in favor of striking down the federal law when the Second Circuit issued its original decision in the case.

Posted at 3:22 PM by Howard Bashman

“This case concerns the practice of catching yellowfin tuna by encircling dolphins with purse-seine nets.” So begins a ruling that a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued today. The issue is whether tuna caught using that type of nets can be labeled “dolphin safe.” The federal government would like to answer that question in the affirmative, but today’s ruling disagrees.

Posted at 1:20 PM by Howard Bashman

Eleventh Circuit Judge Stanley Marcus has lots to say about federal question jurisdiction to decide a petition to compel arbitration under the Federal Arbitration Act: Almost 80 pages, to be exact, consisting of both a majority opinion and a specially concurring opinion criticizing the binding Eleventh Circuit law on which the majority opinion had no choice but to rely.

The specific issue in the case is whether a federal district court has federal question jurisdiction over a petition to compel arbitration if the underlying dispute to be arbitrated itself states a federal question. Apparently four other federal appellate court’s have answered “no,” but the Fourth and Eleventh Circuits say “yes.”

The specially concurring opinion concludes, “This important issue which has split the circuits merits more consideration than either this Court or the Supreme Court has given it.”

Posted at 12:18 PM by Howard Bashman

“Rough Justice: Behind the scenes with the American advisers to the Iraq v. Saddam Hussein court.” This article will appear in the May 2007 issue of the ABA Journal.

Posted at 11:48 AM by Howard Bashman

Eighth Circuit examines a university’s liability for a professor’s alleged violation of a student’s right to be free from sexual harassment: You can access today’s ruling, by a unanimous three-judge panel, at this link.

Posted at 11:44 AM by Howard Bashman

Ninth Circuit Judge Alex Kozinski‘s take-down of blogs is itself taken down: Far be it from me to try to explain how or why things happen on the internet, but thanks to a post this morning at “Above the Law” titled “Kozinski on Blogs: ‘Hateful Things,’” I note that both the audio and transcript of Judge Kozinski’s remarks that I’ve linked to here and here are now gone from the web. “Above the Law” states that “The audio link is down,” but the web site that hosted the audio and transcript remains on-line; all that’s unavailable are the audio and text of Judge Kozinski’s talk. Perhaps Judge Kozinski’s dislike of blogs extends to a dislike of podcasts of his remarks expressing a dislike of blogs.

Fortunately, at least as of this moment, you can still download via this link the mp3 audio file in which Judge Kozinski spoke about “How Appealing.” [Update: As of shortly after 3 p.m. eastern time, that direct mp3 download likewise no longer functions. Perhaps someone no longer wants this audio file to be readily available.] I’ve saved a copy of that audio file on my hard drive, allowing me to post it myself if the “Tech LawForum” web site hosted by the High Tech Law Institute at Santa Clara Law School now decides to remove direct access to the mp3 file as well.

The “Above the Law” post states, “Why is Kozinski picking on Bashman? How Appealing is the opposite of grandiloquent; it’s essentially a just-the-facts clearinghouse for the day’s news.” At “Patterico’s Pontifications,” Patterico writes, “Let’s hope Kozinski was just kidding. After all, Howard Bashman is the last guy you’d want to pick on for being flowery and self-indulgent — and his site is tremendously useful. Either Judge Kozinski was kidding, or he just doesn’t know what he’s talking about here.”

A judicial law clerk emails, “I’ll echo what the California district court clerk said, but this time coming from the Eighth Circuit. There is only one website that has a shortcut on my desktop, and it’s How Appealing. You’re my morning newspaper for all things legal. Judge wonders how we get PDFs of Supreme Court opinions before they’re posted on the Supreme Court website, and it’s because of your speed. You certainly are ‘the authority’ for appellate happenings for this chambers.”

And from a U.S. Courts email address in the Northern District of Georgia comes an email stating, “Am I the only one who read Judge Kozinski’s comments about your blog as having been made very tongue-in-cheek. I interpreted his remarks as a back-hand compliment (since I know that you and he have traded quips over the years), but I see other people who seem to be up in arms over the judge’s statement. I am curious to know how YOU interpreted his remarks.”

Judge Kozinski and I supported opposite sides in the battle over whether to adopt Federal Rule of Appellate Procedure 32.1, which allows parties to cite to unpublished and non-precedential federal appellate court rulings. He was quite personally invested in efforts to defeat that rule, but ultimately the rule change was approved. He and I also disagree over whether the Ninth Circuit should be divided. But, the person who can best explain whether and, if so, why Judge Kozinski doesn’t like this blog (or me or my opinions on issues) isn’t me.

Of course, to the extent that I do publicly express opinions on controversial issues (which isn’t often, and typically those issues are controversial only among fellow law geeks), and some people think less of me as a result, that’s a risk that I’ve knowingly and willingly taken. So, there are certainly no regrets here.

Update: And this just in from a Chief Judge who’s emailing over the BlackBerry: “Just a note to tell you that Kozinski is SO off base, but you already knew that. Better than that, however, his comments were just gigged by Dahlia Lithwick, of Slate — who is speaking on Blogging at the Annual Conference of Chief Judges. You have a lot of fans in here.”

Posted at 11:34 AM by Howard Bashman

“Penalty for refusing drunk test applies even if driver in parked car, court rules”: Today in The San Francisco Chronicle, Bob Egelko has an article that begins, “A suspected drunken driver can have her license suspended for refusing to be tested for alcohol, even though police only found her passed out in the car and never actually saw her driving, the state Supreme Court ruled Thursday.”

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

Posted at 9:14 AM by Howard Bashman

“Dirty words as bad as pictures, court rules”: The Journal News of Westchester, New York today contains an article that begins, “Sexually explicit words are just as bad as nude pictures when they’re sent to children over the Internet, the state’s highest court has decided.”

Gannett News Service reports that “State’s highest court reverses ruling on Internet porn.”

And The Associated Press provides a report headlined “Court: No need for images to convict on anti-pedophile law.”

You can access yesterday’s ruling of the New York State Court of Appeals — that State’s highest court — at this link.

For those interested in this subject, the October 9, 2006 installment of my weekly “On Appeal” column for was headlined “Text This: Words Alone Can Violate Federal Obscenity Laws.”

Posted at 9:07 AM by Howard Bashman

“Lam’s work honored by county bar association; Dignity after dismissal cited by board member”: This article appears today in The San Diego Union-Tribune.

Posted at 8:47 AM by Howard Bashman

“Jurists uphold bar critic’s gagging; A Balboa Island woman can be stopped from making defamatory comments about a local bar, the California Supreme Court ruled Thursday”: The Orange County Register today contains an article that begins, “A Balboa Island woman who is accused of saying that workers at a neighborhood bar of peddled child porn, had Mafia ties and worked for Satan can be barred from making such comments without having her free-speech rights violated, the California Supreme Court ruled Thursday. The ruling caps a six-year legal saga that stemmed from statements made by Anne Lemen about the Balboa Island Village Inn, a tavern and restaurant open since the 1920s. As a result, slander and libel cases typically resolved with fines could instead be handled through outright bans on defamatory speech, a possibility that worried some observers.”

Today in The Los Angeles Times, Maura Dolan reports that “State supreme court moves to limit speech; State justices for the first time rule that defendants can be barred from making defamatory statements in the future.”

And in The San Francisco Chronicle, Bob Egelko reports that “State’s top court says statements ruled slanderous can’t be repeated.”

My earlier coverage of yesterday’s ruling of the Supreme Court of California can be accessed here.

Posted at 8:37 AM by Howard Bashman

“Probe of White House political operations moves ahead; Special counsel sets up procedures to investigate the firing of a U.S. attorney and missing White House e-mails”: The Los Angeles Times contains this article today.

And in today’s issue of USA Today, Raul Reyes has an op-ed entitled “Why are Gonzales’ amigos so silent?

Posted at 8:15 AM by Howard Bashman

“U.S. Wants to Limit Guantanamo Detainees’ Access to Lawyers”: This article appears today in The Washington Post.

And The New York Times today contains an editorial entitled “After the Lawyers” that begins, “It can be hard to tell whom the Bush administration considers more of an enemy at the Guantanamo Bay detention camp: the prisoners or the lawyers.”

Posted at 7:55 AM by Howard Bashman

“Immigration-Related Cases Clog Courts”: The Associated Press provides a report that begins, “Immigration-related felony cases are swamping federal courts along the Southwest border, forcing judges to handle hundreds more cases than their peers elsewhere.”

Posted at 7:50 AM by Howard Bashman