How Appealing

Wednesday, January 28, 2009

“Will Padilla’s case be heard? The Justice Department says a victory by the convicted terrorist would harm national security.” Warren Richey will have this article Thursday in The Christian Science Monitor.

Posted at 11:00 PM by Howard Bashman

“U.S. high court asked to take up Bilski patent case”: Reuters provides a report that begins, “The U.S. Supreme Court is being asked to review a decision in a patent case which put a question mark over the ability to patent such things as software and financial strategies.”

And at “SCOTUSblog,” Lyle Denniston has a post titled “Major new case on patent rights.”

You can access the petition for writ of certiorari at this link.

Posted at 10:55 PM by Howard Bashman

“High Court Justices Protect Workers From Retaliation in Job Bias Investigations”: Marcia Coyle of The National Law Journal has this report.

Posted at 10:54 PM by Howard Bashman

“Eroding the Exclusionary Rule: Why the Supreme Court got it wrong in Herring v. United States.” Radley Balko has this essay online today at Reason.

Posted at 10:52 PM by Howard Bashman

The Brief for Respondent was filed today in the U.S. Supreme Court case of Caperton v. A.T. Massey Coal, No. 08-22: You can access the Brief for Respondent at this link.

In addition, yesterday I linked here to an article forthcoming in the February 2009 issue of ABA Journal magazine headlined “Caperton’s Coal: The battle over an Appalachian mine exposes a nasty vein in bench politics.” Today, attorney Andrew L. Frey, counsel of record in the Supreme Court for the Massey parties, sent this letter to the editor and publisher of the ABA Journal to seek the correction of what Frey described as “certain striking errors in the story.”

Finally, The Associated Press on Monday had a report headlined “Benjamin expected to hear Massey appeal” that begins, “West Virginia Chief Justice Brent Benjamin is participating in another appeal involving Massey Energy even as the U.S. Supreme Court reviews his participation in a case involving the coal company.”

Posted at 8:48 PM by Howard Bashman

“DOJ wants delay on detainee question”: At, Josh Gerstein has an article that begins, “President Obama’s Justice Department is asking a federal judge for at least two more weeks to answer the thorny question of who is and who isn’t an ‘enemy combatant.'”

Posted at 2:33 PM by Howard Bashman

“Ninth Circuit Denies En Banc Review in Text Message Privacy Case”: Steven M. Ellis of Metropolitan News-Enterprise has an article that begins, “The Ninth U.S. Circuit Court of Appeals, over the dissent of seven of its judges, yesterday declined to review en banc a ruling that the Ontario Police Department violated an employee’s right to privacy when supervisors examined the contents of text messages sent on department pagers. A panel of the court ruled in June that the department violated the Fourth Amendment rights of Sgt. Jeff Quon and three others to whom he sent text messages when the department obtained transcripts from the service provider and examined the messages’ contents to determine whether a monthly overage charge resulted from personal use.”

In addition to yesterday’s order of the U.S. Court of Appeals for the Ninth Circuit denying rehearnig en banc, you can also access online Circuit Judge Kim McLane Wardlaw‘s opinion concurring in the denial of rehearing en banc, and Circuit Judge Sandra S. Ikuta‘s opinion dissenting from the denial of rehearing en banc. A total of seven judges noted their dissent from the denial of rehearing en banc.

Judge Wardlaw’s concurring opinion begins, “No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal. The dissent is not bound by the facts, even those found by the jury; nor is it confined to the actual fact-driven Fourth Amendment holding.”

Posted at 2:00 PM by Howard Bashman

New York State’s statutory ban on the possession of nunchucks does not violate the Second and Fourteenth Amendments, the Second Circuit holds: According to today’s ruling of the U.S. Court of Appeals for the Second Circuit, the plaintiff argued that “New York’s statutory ban on the possession of nunchakus violates (1) the Second Amendment because it infringes on his right to keep and bear arms, and (2) the Fourteenth Amendment because it lacks a rational basis.” The Second Circuit finds merit in neither argument.

With regard to the Second Amendment, today’s ruling notes that “It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose” on the right of the people to keep and bear arms.

Posted at 11:15 AM by Howard Bashman

“Holder confirmation won’t end torture questions”: The Associated Press provides this report.

At “The BLT: The Blog of Legal Times,” David Ingram has a post titled “Specter Says He Will Vote for Holder.”

The Los Angeles Times today contains an editorial entitled “Cornyn’s outrageous confirmation demand: The GOP senator defies legal ethics by demanding that the attorney general nominee vow to not pursue any torture prosecutions.”

And The New York Times today contains an editorial entitled “Alberto Gonzales, the Sequel.” You can access my recent related coverage at this link.

Posted at 10:22 AM by Howard Bashman

“Ban on jobs for those who don’t register for draft invalidated; Judge backs 4 who were fired”: Today in The Boston Globe, Jonathan Saltzman has an article that begins, “A federal judge in Boston has declared unconstitutional a 1985 law that bars people from most federal employment if they knowingly fail to register for the draft. US District Court Judge Douglas P. Woodlock, siding with four men fired by the federal government for failing to register years earlier, said the law violates a constitutional provision that bars the legislative branch from punishing people without a trial.”

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

Posted at 9:25 AM by Howard Bashman

“School can expel lesbian students, court rules; An appeals panel finds California Lutheran High School in Riverside County is not a business and therefore doesn’t have to comply with a state law barring discrimination based on sexual orientation”: Maura Dolan has this article today in The Los Angeles Times.

Today in The San Francisco Chronicle, Bob Egelko reports that “Court says private school can expel lesbians.”

And The Press-Enterprise of Riverside, California reports that “Appeal over expulsions from Lutheran school in Wildomar denied.”

You can access Monday’s ruling of the California Court of Appeal for the Fourth Appellate District, Division Two, at this link.

According to the court’s opinion, the school learned of these students’ sexual orientation via their MySpace pages.

Posted at 9:15 AM by Howard Bashman

“Bilski Heads to the Supreme Court”: This morning at “The BLT: The Blog of Legal Times,” Tony Mauro has a post that begins, “The long-anticipated petition appealing the landmark Bilski decision of the U.S. Court of Appeals for the Federal Circuit is being filed at the Supreme Court today, setting the stage for a showdown over whether so-called ‘business methods’ — processes and procedures, not widgets — are patentable.”

Posted at 9:03 AM by Howard Bashman

“Obama lawyers set to defend Yoo”: At, Josh Gerstein has an article that begins, “In Democratic legal circles, no attorney has been more pilloried than former Bush Justice Department official John Yoo, chief author of the so-called torture memos that Barack Obama last week sought to nullify. But now President Obama’s incoming crew of lawyers has a new and somewhat awkward job: defending Yoo in federal court.”

Posted at 8:57 AM by Howard Bashman

“ACLU tests Obama with request for secret Bush-era memos”: Marisa Taylor of McClatchy Newspapers has an article that begins, “Dozens of secret documents justifying the Bush administration’s spying and interrogation programs could see the light of day because of a new presidential directive. The American Civil Liberties Union asked the Obama administration on Wednesday to release Justice Department memos that provided the legal underpinning for harsh interrogations, eavesdropping and secret prisons.”

Today, the ACLU has issued a news release headlined “ACLU Calls On Justice Department To Release Bush Administration Torture And Surveillance Memos; Releasing Secret Legal Opinions Will Help Turn Page On Lawless Era, Group Says.” And you can access at this link today’s letter from the ACLU to the head of the U.S. Department of Justice‘s Office of Legal Counsel.

Posted at 8:54 AM by Howard Bashman

“Biden apologizes to Roberts”: Pete Williams and Antoine Sanfuentes have this report at provides a report headlined “No Oath Flub for Roberts This Week.”

In related news, The Associated Press provides a report headlined “New Smithsonian chief formally takes job” that begins, “Chief Justice John Roberts didn’t have to worry about stumbling over an oath of office for the new Smithsonian chief Monday — all he had to do this time was hand over a key.”

Yesterday, Chief Justice John G. Roberts, Jr. celebrated his 54th birthday. David Letterman, on his monologue during last night’s broadcast of the CBS program “Late Show with David Letterman,” noted the Chief Justice’s birthday by remarking that, at his office’s birthday party yesterday, Roberts “screwed up the words to Happy Birthday.”

Posted at 8:44 AM by Howard Bashman