How Appealing

Wednesday, May 2, 2007

“Ex-Aide to Gonzales Accused Of Bias; Justice Scrutinizing Politics in Hiring”: This front page article will appear Thursday in The Washington Post. Tomorrow’s newspaper will also contain an article headlined “Tester Calls on Montana U.S. Attorney to Resign.”

The New York Times on Thursday will report that “Justice Dept. Announces Inquiry Into Its Hiring.”

And McClatchy Newspapers report that “Senate panel subpoenas Rove’s e-mails about U.S. attorneys.”

Posted at 11:22 PM by Howard Bashman

Here’s a newsflash, doctor — fried chicken and french fries aren’t good for the arteries: The Associated Press provides an article headlined “Trans Fat Lawsuit Against KFC Tossed Out” that begins, “A federal judge on Wednesday dismissed a lawsuit brought by a doctor who accused KFC of not telling customers that it used trans fats to fry its chicken. In an occasionally sarcastic opinion, U.S. District Judge James Robertson said Dr. Arthur Hoyte could not show that he was harmed by KFC’s use of the artery-clogging fats.”

You can access today’s ruling of the U.S. District Court for the District of Columbia at this link.

Posted at 11:14 PM by Howard Bashman

“Court stays Moore execution”: The Lincoln Journal Star provides a news update that begins, “Condemned murderer Carey Dean Moore’s execution was stayed Wednesday by a divided Nebraska Supreme Court, whose majority said the court had acted prematurely when it issued a death warrant in the case. Supreme Court Judge John Gerrard, writing for the 4-3 majority, said the court should have withheld the death warrant until it resolved another death row inmate’s constitutional challenge of the electric chair.”

And The Associated Press reports that “Neb. High Court Stays Electrocution.”

You can access today’s ruling of the Supreme Court of Nebraska at this link.

Posted at 11:10 PM by Howard Bashman

Don’t bother us by arguing over what some federal district judge may have said in another case, Seventh Circuit tells lawyers: On behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, Chief Judge Frank H. Easterbrook today issued a decision that concludes:

[D]ecisions of district judges have no authoritative effect. District judges’ opinions often contain persuasive observations, but these can be incorporated into the parties’ briefs. It is never helpful to have an [sic] lengthy exchange on what a particular district court’s opinion “really means” and whether that case was correctly decided. The parties should learn what the opinion has to teach and weave its wisdom into their own presentations.

I guess the same could be said of non-precedential federal appellate court opinions, which Federal Rule of Appellate Procedure 32.1 now allows parties to cite to federal appellate courts. The reality is that advocates will always regard a legal proposition that a judge has accepted — even if only a “lowly” federal district judge — as potentially more worthy of another court’s credence than a proposition of law for which no authority is cited.

Posted at 5:32 PM by Howard Bashman

“Christian Postings’ Removal Upheld”: The Associated Press provides a report that begins, “School officials did not violate a teacher’s First Amendment rights when they removed Christian-themed postings from his classroom, a federal appeals court ruled Wednesday.”

You can access today’s ruling of a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit at this link.

Posted at 5:18 PM by Howard Bashman

When bots attack: The online host of this blog tells me that two bots have been attacking this afternoon, and, as a result of this DOS attack, online access to this web site has been sluggish to non-existent. As those attacks diminish, access to “How Appealing” should be improving.

Posted at 5:15 PM by Howard Bashman

On Sunday, May 6, 2007, this blog will turn five years old: In a pleasant coincidence, on Sunday I’m planning to attend a Milwaukee Brewers baseball game at Miller Park with someone mentioned in the second post that I published on this blog’s very first day.

Since coming into existence nearly five years ago, this blog resulted in the creation of at least one new word; reported on musings about Seventh Circuit Judge Richard A. Posner‘s undergarments during one of that court’s oral arguments; and was foisted on a federal government attorney at an Eighth Circuit oral argument as required reading (perhaps adding insult to injury, that attorney’s client later lost the appeal).

To mark this blog’s rapidly forthcoming fifth anniversary, I am hereby soliciting from readers via email any interesting stories they may wish to share about “How Appealing,” whether good, bad, or indifferent. Starting on May 6, 2007, I will reprint here the emails that I find likely to be of greatest interest to this blog’s readership. If you email me in response to this request, please let me know whether I can include your name if I select your email for publication.

Posted at 12:45 PM by Howard Bashman

“Prosecutors’ Lose Power Over DNA Testing”: The Associated Press provides a report that begins, “A law giving prosecutors the final say on whether an inmate can apply for DNA testing is unconstitutional because that authority is meant for judges, a unanimous Ohio Supreme Court ruled Wednesday. The ruling overturned a portion of a state law that allows inmates who pleaded guilty to crimes to request DNA testing after their conviction.”

You can access today’s ruling of the Supreme Court of Ohio at this link. And the court’s Office of Public Information provides this summary of the ruling.

Posted at 12:14 PM by Howard Bashman

“Black Hole: Inside Bagram, the other Guantanamo.” Eliza Griswold has this essay in the May 7, 2007 issue of The New Republic.

Posted at 12:11 PM by Howard Bashman

“They Know Best: Melody Rose’s book charts the rise of paternalism in Supreme Court doctrine on abortion.” Scott Lemieux has this essay online at The American Prospect. More information about the book in question is available at this link.

Posted at 12:03 PM by Howard Bashman

“Will Schwarzenegger’s new death chamber actually help inmates? If building a new lethal-injection facility will improve quality of life for prisoners on California’s death row, I’m for it.” Sara Catania has this essay today at

Posted at 12:00 PM by Howard Bashman

“A New Judicial Crisis: Judges Falling Asleep.” Does a 26-page study about judges falling asleep on the bench make for riveting reading? Click here to find out. Thanks to Peter Lattman at’s “Law Blog” for the pointer.

Posted at 11:50 AM by Howard Bashman

“Law firm sued over forgery by attorney”: The Rocky Mountain News last Friday published an article that begins, “A prominent Denver law firm is being sued after one of its attorneys forged a federal judge’s signature on a legal document.”

The complaint initiating suit, filed last Tuesday in the U.S. District Court for the District of Colorado, can be accessed here. I have also posted online Exhibit B to the complaint.

Thanks to “Above the Law” for the pointer.

Posted at 11:45 AM by Howard Bashman

Interview with Judge Alex Kozinski” back online: Last Friday, I had a post titled “Ninth Circuit Judge Alex Kozinski’s take-down of blogs is itself taken down” noting that the “Tech LawForum” web site hosted by the High Tech Law Institute at Santa Clara Law School had removed all traces — audio segments and transcripts — of an interview, which Law Professor Eric Goldman first drew attention to on his blog, after certain of Judge Kozinski’s remarks had drawn criticism from within and outside of the blogosphere.

In a positive development, the “Tech LawForum” web site has once again begun to provide online access to all four audio segments of Judge Kozinski’s cyberlaw talk. You can access the audio via this link. Judge Kozinski discusses blogging, David Lat, Judge Kozinski’s quest to be crowned “Male Superhotty of the Federal Judiciary,” me, and this blog in the first of the four audio segments available via that link. Just as the audio and transcripts disappeared without explanation late last week, they have now reappeared without explanation.

You can access my extensive earlier coverage via posts here and here.

Posted at 9:42 AM by Howard Bashman

“Ruling chastises state on unclaimed property”: Today in The San Francisco Chronicle, Bob Egelko has an article that begins, “The state of California, which is holding $5 billion worth of bank accounts, stocks and other property it classifies as abandoned, appears to be violating the owners’ rights by seizing and selling their property without notifying them, a federal appeals court says.”

You can access Monday’s non-precedential ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.

Posted at 9:25 AM by Howard Bashman

“Wis. case may help political workers here”: The Chicago Sun-Times today contains an article that begins, “The federal appellate court’s decision to free from prison an aide to Wisconsin’s governor could help plenty of political operatives in Illinois. In addition to convicted Chicago patronage chief Robert Sorich, indicted ex-Streets and Sanitation Commissioner Al Sanchez and perhaps even convicted former Gov. George Ryan could be among those benefitting.” And a related article is headlined “Mayor’s office linked in Sorich appeal; Judge questions where power came from, may be nod to ruling that cleared aide.”

Meanwhile, The Chicago Tribune reports today that “Decision in a 2nd case lifts Sorich; Ex-patronage chief will base appeal on U.S. judge’s ruling.”

Posted at 9:22 AM by Howard Bashman

“Supreme Court Justice Breyer to Take on Shakespeare’s Measure for Measure and the Art of Judging”: This press release, issued yesterday, discusses an event scheduled to occur in Boston on June 12, 2007. According to the press release, ABC News correspondent Jan Crawford Greenburg will also be there.

Posted at 9:20 AM by Howard Bashman

“Ruling could aid challenge to UW stem cell patents; Supreme Court affirms basis of patent objection”: The Milwaukee Journal Sentinel today contains an article that begins, “A Supreme Court ruling this week could make it more difficult for a Wisconsin foundation to defend key embryonic stem cell patents against challenges by two groups, some patent experts and representatives of those groups said Tuesday.”

Posted at 9:15 AM by Howard Bashman

“Trademark battlefield: Some companies filing lawsuits against search engines argue ad sales generated from registered names are infringing on trademark rights.” This article appears today in The Chicago Tribune.

Posted at 9:08 AM by Howard Bashman

“The year for a shield law”: The Boston Globe today contains an editorial that begins, “Steadily, prosecutors and plaintiffs are showing an increasing desire to make their cases on the backs of reporters, poking into their confidential notes and information, often obtained with the promise of anonymity. And judges are increasingly turning the screws by threatening journalists with jail time unless they break that promise. Too often, judges are carrying out the threat.”

Posted at 9:05 AM by Howard Bashman

“TB patient jailed after not following doctor’s orders; A Phoenix man is under lockdown after going out in public without a mask and not taking prescribed medication”: This article appears today in The Los Angeles Times.

Posted at 9:00 AM by Howard Bashman

“Rogers Won’t Hear Gay Marriage Case; New Chief Justice Cites Involvement Of Husband’s Firm”: The Hartford Courant today contains an article that begins, “The state Supreme Court’s new chief justice, Chase T. Rogers, will not preside over the most significant case to be heard by the court this year, in which eight couples are challenging the ban on same-sex marriage. The landmark constitutional case, Kerrigan et al v. the state Department of Public Health, will be argued before a full panel of the court May 14.”

Posted at 8:37 AM by Howard Bashman

“Lawsuit challenges limits on what judicial candidates may say”: The Associated Press provides this report from Pennsylvania.

Posted at 8:30 AM by Howard Bashman

“Both sides find victory in Mo. abortion decision”: The St. Louis Post-Dispatch today contains an article that begins, “The Missouri Supreme Court upheld a law Tuesday that makes it more difficult for teens to obtain an abortion without parental consent, but it did so in a way that at least partly pleased abortion rights advocates. The author of the anti-abortion measure applauded the ruling, even as Planned Parenthood heralded the decision as a victory to those who provide advice to pregnant teens.”

And The Kansas City Star reports today that “Missouri abortion law ruled legal.”

My earlier coverage of yesterday’s ruling of the Supreme Court of Missouri appears at this link.

Posted at 8:27 AM by Howard Bashman

“Residency Clause Adds Fuel To Dispute Over U.S. Attorneys; One Prosecutor Gets an Exemption, Another Gets Fired”: This article appears today in The Washington Post.

Bloomberg News reports that “McNulty Asserts He Knew Little of Firings, Aides Say.”

And in USA Today, Ronald Goldfarb has an op-ed entitled “Crossing a line at Justice — How an attorney general handles outside political forces is critical to the mission of true justice; Alberto Gonzales could have learned a thing or two from one of his predecessors: RFK.”

Posted at 8:20 AM by Howard Bashman

“Administration Pulls Back on Surveillance Agreement”: The New York Times today contains an article that begins, “Senior Bush administration officials told Congress on Tuesday that they could not pledge that the administration would continue to seek warrants from a secret court for a domestic wiretapping program, as it agreed to do in January.” In addition, the newspaper contains an editorial entitled “Spying on Americans.”

And The Washington Post reports today that “Intelligence Chief Decries Constraints; Update of Surveillance Law Urged.”

Posted at 8:12 AM by Howard Bashman

“Penalty Stands in Congressmen’s Battle Over Leaked Phone Call”: The Washington Post contains this article today.

Today in The New York Times, Adam Liptak reports that “Court Says Congressman Must Pay Damages.”

The Seattle Post-Intelligencer reports that “Appeals court rules against McDermott in phone call case.”

The Hill reports that “Court sides with Boehner in ethics case.”

And yesterday evening’s broadcast of NPR’s “All Things Considered” contained an audio segment entitled “Court Settles Fight Between Boehner, McDermott” (RealPlayer required).

My earlier coverage of yesterday’s en banc D.C. Circuit ruling can be accessed here.

Posted at 8:07 AM by Howard Bashman

“Donald P. Lay, 80, Federal Judge Notable in Rights Cases, Dies”: The New York Times today contains an obituary that begins, “Donald P. Lay, a former chief judge of the United States Court of Appeals for the Eighth Circuit who rigorously defended the rights of women, Native Americans and convicts during his 40 years on the bench, died Sunday at his home in North Oaks, Minn. He was 80.”

Yesterday evening, a reader emailed to say:

I’m a recent Penn Law grad and regular reader of your blog. Judge Donald Lay spoke at a conference in the spring 2005 at Penn on drug policy, so I was very sad to read about his passing on your blog. Judge Lay’s passion on the subject of drug policy reform was impressive, to say the least, and he had truly made it his crusade to convince the federal courts, Congress, DoJ and anyone else who would listen that the federal drug crime judicial process we have in this country was broken and in dire need of fixing. I don’t know how much you’re interested in commenting on Judge Lay’s passing beyond mentioning it today, but in case you wanted to give a moment of attention to one of his most recent passions, here’s one of the many pieces he wrote on the subject.

I thank that reader for her email.

And at “Power Line,” Scott Johnson offers these reflections.

Posted at 7:45 AM by Howard Bashman