How Appealing

Friday, October 12, 2007

In press releases that almost evaded my attention: On the first Tuesday in October, Akin Gump Strauss Hauer & Feld LLP issued a press release that begins, “Former Assistant to the Solicitor General Patricia A. Millett has joined Akin Gump as a partner in the appellate practice in Washington, the firm announced today.” Patricia is now co-chair of that firm’s Supreme Court practice.

Posted at 5:04 PM by Howard Bashman

“Court Reinstates Some Apartheid Claims”: The Associated Press provides a report that begins, “An appeals court Friday reinstated some of the class-action claims of millions of people who say they suffered under apartheid while living in South Africa because of the actions of American, Canadian and European companies. The U.S. government has said the litigation would interfere with South Africa’s reconciliation and redress efforts and would cause ‘significant tension between the United States and South Africa.’ A lower court had tossed out the case, in part because of the vigorous objections by the U.S. and its allies.”

My earlier coverage of today’s Second Circuit ruling appears at this link.

Posted at 3:04 PM by Howard Bashman

Ninth Circuit grants rehearing en banc in Fair Housing Council v. On May 15, 2007, I had a post titled “Splintered Ninth Circuit panel holds that the Communications Decency Act does not protect the online roommate matching service from liability under the Fair Housing Act” reporting on a decision that a three-judge Ninth Circuit panel had issued that day.

Today, the Ninth Circuit entered an order granting rehearing en banc in the case.

My criticism of the now-vacated majority opinion appeared in the May 21, 2007 installment of my “On Appeal” column for, headlined “When Should a Commercial Web Site Be Held Liable for User-Generated Content?” That column concluded, “Last week’s 9th Circuit ruling reinstating Fair Housing Act claims against based on user-generated content is in direct conflict with that court’s earlier decision involving the fake dating profile. Therefore, I believe that the case should be reviewed en banc, and Judge Ikuta’s more robust view of the Communications Decency Act’s protections should be adopted by the en banc court.”

Law Professor Eric Goldman, at his “Technology & Marketing Law Blog,” has a post providing access to the rehearing petition and related briefing. Eric’s original devastating critique of the three-judge panel’s ruling can be accessed here.

Posted at 1:50 PM by Howard Bashman

Hey Sixth Circuit, you can’t say that! Even before Federal Rule of Appellate Procedure 32.1 became law, the U.S. Court of Appeals for the Sixth Circuit had one of the more permissive approaches toward allowing advocates to cite unpublished decisions.

Thus, it is surprising that the Sixth Circuit’s web site continues to feature the following “Please Note” message on its opinions page: “Citation of unpublished decisions in briefs and oral arguments in this Court and in the district courts within this Circuit is disfavored, except for the purpose of establishing res judicata, estoppel, or the law of the case. If a party believes, nevertheless, that an unpublished disposition has precedential value in relation to a material issue in a case, and that there is no published opinion that would serve as well, such decision may be cited if that party serves a copy thereof on all other parties in the case and on this Court. Such service shall be accomplished by including a copy of the decision in an addendum to the brief.”

Update: Later today, the Sixth Circuit removed that “Please Note” message from the web page linked above.

Posted at 12:03 PM by Howard Bashman

“Jury awards nearly $3M in Maine defamation case”: Back on June 29, 2006, The Associated Press published an article that begins, “A federal jury awarded nearly $3 million to a North Yarmouth woman in what’s believed to be the largest judgment ever in a defamation case in Maine. Deborah Galarneau’s lawsuit claimed she was defamed by Merrill Lynch after she was fired in January 2004. Merrill Lynch denied any wrongdoing, saying it was legally mandated to explain the firing to the National Association of Securities Dealers.”

Today, the U.S. Court of Appeals for the First Circuit issued a decision affirming the jury’s verdict as to liability and compensatory damages but setting aside the jury’s award of $2.1 million in punitive damages. Law Professor Eugene Volokh is listed on the opinion as one of the appellate attorneys for defendant-appellant Merrill Lynch.

Posted at 11:47 AM by Howard Bashman

By means of a lengthy decision in which each member of the three-judge panel writes separately, Second Circuit reinstates, in part, lawsuit alleging that corporate defendants actively and willingly collaborated with South Africa in maintaining apartheid system: You can access today’s 147-page ruling at this link.

The lead per curiam opinion begins, “The plaintiffs in this action bring claims under the Alien Tort Claims Act against approximately fifty corporate defendants and hundreds of ‘corporate Does.’ The plaintiffs argue that these defendants actively and willingly collaborated with the government of South Africa in maintaining a repressive, racially based system known as ‘apartheid,’ which restricted the majority black African population in all areas of life while providing benefits for the minority white population.”

Posted at 11:15 AM by Howard Bashman

“Republican calls for Congress to probe Kent”: The Galveston County Daily News today contains a front page article that begins, “The ranking Republican on the House Judiciary Committee and a leading constitutional scholar added their voices Thursday to those calling on the committee to begin investigating whether U.S. District Judge Samuel B. Kent should be impeached.”

Posted at 9:35 AM by Howard Bashman

“State defies high court over sex offenders; Hundreds will be sent back to prison for violating Jessica’s Law”: The Los Angeles Times today contains an article that begins, “Vowing to fight an order from the state’s highest court, Gov. Arnold Schwarzenegger and corrections officials Thursday defiantly began sending hundreds of freed sex offenders back to prison for violating strict residency requirements imposed by voters last year. The California Supreme Court late Wednesday temporarily blocked the state from arresting four sex offenders who went to court in an effort to avert arrest under what is commonly known as Jessica’s Law, which decrees that they must live more than 2,000 feet from schools, parks and other areas where children gather.”

Today in The San Francisco Chronicle, Bob Egelko reports that “State Supreme Court rules in sex-offender residency case.”

And The Sacramento Bee contains an article headlined “Moving in on sex offenders: Sweep targets those too close to parks, schools; many seek legal help.”

Posted at 8:48 AM by Howard Bashman

“Court holds off new background checks for NASA workers”: Today in The San Francisco Chronicle, Bob Egelko has an article that begins, “Scientists and engineers at NASA’s Jet Propulsion Laboratory in Pasadena won a federal court reprieve Thursday from extensive new background checks ordered by the Bush administration.”

You can access yesterday’s Ninth Circuit order granting an injunction pending appeal at this link.

Posted at 8:44 AM by Howard Bashman

“In Defense of the Office of Legal Counsel”: The Washington Post today contains a letter to the editor that begins, “We write on behalf of all nine deputy assistant attorneys general who currently work or formerly worked for Steven G. Bradbury during his tenure as acting head of the Office of Legal Counsel.”

Posted at 8:27 AM by Howard Bashman

“Watchdog of C.I.A. Is Subject Of C.I.A. Inquiry”: The New York Times today contains an article that begins, “The director of the Central Intelligence Agency, Gen. Michael V. Hayden, has ordered an unusual internal inquiry into the work of the agency’s inspector general, whose aggressive investigations of the C.I.A.’s detention and interrogation programs and other matters have created resentment among agency operatives.”

And The Los Angeles Times reports today that “CIA investigates conduct of its inspector general; The internal inquiry is prompted by senior agency officials who say they were criticized unfairly in the watchdog’s reports on secret overseas prisons.”

Posted at 8:08 AM by Howard Bashman

“Legal Grounds: Plaintiffs Suing U.S. Tribes Can’t Get Their Day in Court; Hit With Lawsuits, Indian-Owned Casinos Can Claim Immunity.” The Wall Street Journal contains this front page article today.

Posted at 8:00 AM by Howard Bashman

“The Court Shirks”: Yesterday’s edition of The New York Sun contained an editorial that begins, “If one adds up all the salaries of the nine justices of the Supreme Court, it comes to something like $2 million a year — plus benefits, security, huge offices, and a private gymnasium. On top of that, each one of these berobed geniuses gets four or five assistants, and not just any assistants but the brightest assistants that can be found in all the law schools of the land.”

Posted at 7:50 AM by Howard Bashman

“The Fight Over State Laws Favoring In-State Alcohol Purveyors: Do Such Laws Violate the Dormant Commerce Clause? A Federal District Court in New York Says No, But May Well Be Wrong.” Vikram David Amar has this essay today at FindLaw.

As I noted yesterday in this post, the First Circuit yesterday issued a related ruling.

Posted at 7:44 AM by Howard Bashman