How Appealing

Tuesday, May 8, 2007

“Death row’s IQ divide: States differ on how mentally retarded an inmate has to be to avoid execution.” Sara Catania has this op-ed today in The Los Angeles Times.

Posted at 11:07 PM by Howard Bashman

“Navy returned openly gay sailor to active duty; Advocates see shifting trend on ‘don’t ask’ policy”: The Boston Globe contains this article today.

Posted at 10:50 PM by Howard Bashman

Some blog posts from participants and attendees at the Seventh Circuit‘s Judicial Conference in Milwaukee: Ann Althouse — whom I enjoy spending time with whenever we are together for one of these law blog-related panels — has a post titled “The ‘new media’ panel at the 7th Circuit conference.”

At the “Conglomerate” blog, Christine Hurt has a post titled “‘New Media’ Panel Yesterday at 7th Circuit Bench-Bar Conference.”

And at “Stubborn Facts,” Simon Dodd has a vlog about the event.

Although yesterday morning’s program could be seen as suggesting that, in the coverage of the law, it’s the “mainstream media” versus the law blogs, from my perspective (and in the view of at least one audience member with whom I chatted) the relationship between these two forms of communication is complementary. I know that many members of the mainstream media desire to see their articles and essays mentioned here, and it is my pleasure to mention that work (and even to provide pass-through links to otherwise subscription required material, often using links supplied by the authors themselves) if I think that it will be of interest to me or my readership.

The only criticism that I heard repeatedly from audience members who observed the law bloggers panel was that there were too many law bloggers on the panel. I think that is a fair criticism, but unquestionably everyone on the panel was more than qualified to be there.

Given that the Judicial Conference program appeared to portray law blogs as rivals of the mainstream media, it is ironic that today The Associated Press published an article which prominently mentioned my blog post from last night stating that “Justice Stevens’ remarks at dinner demonstrated to me that he has no plans to depart from the Court any time soon.” It is further ironic that the quote may actually cause Justice Stevens to read a law blog. (Of course, he’s already cited to one).

Posted at 9:00 PM by Howard Bashman

“NY appeals court dismisses 4 claims against Grasso”: Reuters provides a report that begins, “A New York appeals court handed Richard Grasso a victory on Tuesday, dismissing four of six claims against him in the state’s effort to get the former New York Stock Exchange chairman to return more than $100 million in compensation. An appeals court in Manhattan, in a 3-to-2 decision, concluded that four of the claims against Grasso were ‘not within the scope’ of the New York attorney general’s authority to bring.”

The Associated Press reports that “Grasso Wins Round in NYSE Pay Fight.”

Bloomberg News reports that “Grasso Wins Appeal of Lawsuit Over Stock Exchange Pay.”

Joseph Goldstein of The New York Sun provides a news update headlined “Grasso Gains in Compensation Suit.”

The New York Times provides a news update headlined “Court Rules for Grasso in Pay Case.”

Financial Times reports that “New York court ruling boosts Grasso.”

And MarketWatch reports that “Parts of Grasso case overturned; New York’s highest court sets aside verdict.”

You can access today’s 3-2 ruling of the New York State Supreme Court, Appellate Division, First Department — an intermediate appellate court — at this link.

Posted at 8:20 PM by Howard Bashman

The Statue of Liberty meets the Statue of Tyranny: Yesterday, The Salt Lake Tribune contained an article headlined “Two cities appeal rulings on religious monuments” that begins, “In the 121 years since the French gave the United States the Statue of Liberty, nobody has demanded a competing statue supporting tyranny. So nobody should be able to demand that competing structures be erected next to monuments of the Ten Commandments that were gifted to Pleasant Grove and Duchesne, the cities’ attorneys say. That argument is outlined in appeals of two decisions issued April 17 by the 10th U.S. Circuit Court of Appeals, which ruled that parks are public forums and that followers of the Summum faith have a right to display their Seven Aphorisms next to the Ten Commandments.”

My earlier coverage of these rulings appears at this link.

Posted at 7:54 PM by Howard Bashman

“Cincinnati Court Denies Stay”: The Tennessean provides a news update that begins, “A federal appeals court in Cincinnati has declined to stop the execution of convicted cop killer Philip Workman, who is slated to be put to death early tomorrow morning.”

And The Nashville City Paper reports that “U.S. Supreme Court denies Workman a stay of execution.”

Earlier, the “Sentencing Law and Policy” blog had a post titled “Split Sixth Circuit panel lifts Tennessee execution stay.” You can access that Sixth Circuit ruling at this link.

Posted at 7:18 PM by Howard Bashman

“It’s not just about fired US attorneys anymore; Congress is asking pointed questions about the role of partisanship in prosecutions, hirings at Justice Department”: This article will appear Wednesday in The Christian Science Monitor.

Posted at 6:02 PM by Howard Bashman

“Ban on videos of animal cruelty tested; Seller of dogfighting tapes on trial here in first case brought under 1999 law”: On January 12, 2005, The Pittsburgh Post-Gazette published an article that begins, “In the first trial of its kind in the United States, a Virginia man who sells dogfighting videos worldwide is being prosecuted here under a federal law banning videos showing cruelty to animals. The law was motivated by an effort in California to stop the proliferation of ‘crush videos,’ in which women in spike heels slowly crush small animals to death for the sexual gratification of a bizarre subculture of fetishists.”

The defendant in that case, Robert J. Stevens, was convicted on of three counts of selling depictions of animal cruelty, as The Post-Gazette later reported here.

In October 2006, the defendant’s appeal was argued before a three-judge panel of the U.S. Court of Appeals for the Third Circuit. The Post-Gazette covered the appellate argument in an article headlined “Dog fight videos called free speech.” The three-judge panel consisted of Circuit Judges D. Brooks Smith and D. Michael Fisher and Senior Circuit Judge Robert E. Cowen.

That three-judge panel has not announced any ruling, and today the Third Circuit issued an order granting rehearing en banc in the case.

Posted at 5:45 PM by Howard Bashman

Confrontation Clause forfeiture by wrongdoing: A criminal defendant found to have procured the murder of someone who would have been a witness against him at trial cannot succeed in raising a Confrontation Clause objection to the admission of that dead witness’s hearsay statements, the U.S. Court of Appeals for the Second Circuit ruled in a decision issued today.

Posted at 5:14 PM by Howard Bashman

Does the First Amendment’s “right of the people … to petition the Government for a redress of grievances” guarantee a citizen’s right to receive a government response to or official consideration of such a petition? Today, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit answers that question “no.”

Circuit Judge Brett M. Kavanaugh delivered the opinion on behalf of a unanimous panel. Circuit Judge Judith W. Rogers also issued a concurring opinion in which she concludes that, although U.S. Supreme Court precedent forecloses plaintiffs’ First Amendment claim, the claim appears to have merit if one considers the “historical evidence of how the right to petition was understood at the time the First Amendment was adopted.”

Posted at 4:57 PM by Howard Bashman

By a vote of 6-4, the U.S. Court of Appeals for the D.C. Circuit denies rehearing en banc in Parker v. District of Columbia, in which a divided three-judge panel adopted the “individual rights” view of the Second Amendment to strike down Washington, DC’s handgun ban: I have posted today’s order denying rehearing en banc at this link. (A corrected version of the order denying rehearing en banc — which omits the statement that a response was considered because the court did not request any response to the rehearing petition — can be accessed here.)

At “SCOTUSblog,” Lyle Denniston has a post titled “Circuit denies new review of Second Amendment.” As noted in that post, the active D.C. Circuit judge who dissented from the three-judge panel’s ruling did not vote in favor of rehearing en banc. Had she done so, rehearing en banc would still have been denied, but by an evenly divided 5-5 vote.

At “The Volokh Conspiracy,” Eugene Volokh has a post titled “The Second Amendment in the Supreme Court.”

My initial coverage of the D.C. Circuit’s original divided three-judge panel ruling can be accessed here. And soon thereafter, an installment of my weekly “On Appeal” column for was headlined “State of the Second Amendment: Does It Apply in the District of Columbia?

The Cato Institute today issued a press release titled “D.C. Petition for Rehearing of Gun Ban Case Denied; Supreme Court likely to be District’s next step.” And the Second Amendment Foundation has issued a press release titled “SAF Says D.C. Circuit Denial On Re-Hearing of Parker Case Was Right.”

I agree with Lyle and Eugene that the Parker case has a very high likelihood of attaining U.S. Supreme Court review should the District of Columbia seek it.

Posted at 4:20 PM by Howard Bashman

“Justice Stevens: 31 Years and Counting.” Mark Sherman of The Associated Press provides this report, in which I am quoted. The blog post of mine that the article quotes from can be accessed here.

Posted at 3:57 PM by Howard Bashman

Last night’s Seventh Circuit Judicial Conference dinner: Another attendee at last night’s dinner emails to observe:

You and Ann Althouse have both blogged about the dinner without mentioning what I regard as the most newsworthy comment of the evening. As you no doubt recall, Justice Stevens mentioned near the end of his remarks that one hears a lot these days about Department of Justice officials appointed on bases other than merit, but that Paul Clement was unquestionably appointed on merit and that he is one of the best Solicitors General Justice Stevens has heard argue. Justice Stevens did not mention this fact, but the group to which he was favorably comparing Paul consists of Bob Bork, Wade McCree, Rex Lee, Charles Fried, Ken Starr, Drew Days, Seth Waxman, and Ted Olson. The first 6 of those SGs all were court of appeals judges or tenured law professors (at Yale, Harvard, or BYU) before becoming SG. All were much older and more experienced when they became SG than Paul Clement was when he became SG before reaching the age of 40.

For any Justice to compare Paul favorably to his distinguished predecessors is noteworthy, given Paul’s youth. It is more noteworthy still for the praise to come from the Justice who wrote Hamdan, and who probably votes against the Bush Administration more than any other Justice.

Moreover, it was clear from where I was seated toward the very front of the room that Solicitor General Paul D. Clement was quite touched by the enormous praise he received from Justice John Paul Stevens.

Posted at 3:50 PM by Howard Bashman

“Gay Rites Will Help Families, Spitzer Says; New Memo Discloses Governor’s Case”: This article appears today in The New York Sun.

Posted at 7:23 AM by Howard Bashman

“Philip Morris’s Argument to the Supreme Court in Watson v. Philip Morris, About Where a Case about Cigarettes Sold As ‘Lights’ Should Be Tried: Lots of Chutzpah, But Little Support.” Anthony J. Sebok has this essay online today at FindLaw.

Posted at 7:15 AM by Howard Bashman