How Appealing

Friday, March 6, 2009

“Obama lawyers argue to drop Yoo torture suit”: Bob Egelko of The San Francisco Chronicle has a news update that begins, “President Obama’s Justice Department defended former Bush administration lawyer John Yoo in a San Francisco federal court Friday, arguing that a prisoner formerly held as an enemy combatant had no right to sue Yoo for writing legal memos that allegedly led to his detention and torture.”

Posted at 11:30 PM by Howard Bashman

“Ban on medical pot cases quickly lifted; L.A.’s U.S. attorney declines to say why he ordered prosecutors to stop filing charges, then abruptly changed his mind”: Scott Glover will have this article Saturday in The Los Angeles Times.

Posted at 11:23 PM by Howard Bashman

Joseph P. Nacchio previews his forthcoming petition for writ of certiorari in an application for bail filed yesterday in the U.S. Court of Appeals for the Tenth Circuit: The Tenth Circuit has posted the application for release at this link.

In news coverage, Reuters reports that “Nacchio requests bail pending Supreme Court review.”

The Denver Business Journal reports that “Nacchio asks for new trial, plans U.S. Supreme Court appeal.”

And The Pottsville (Pa.) Republican and Herald reports today that “Ex-Qwest executive to serve sentence in Minersville.”

Posted at 11:04 PM by Howard Bashman

“Court nixes lawsuit against Florida judge rules”: The Associated Press has a report that begins, “A federal appeals court has decided against a Florida group seeking to nullify a rule that prevented many judicial candidates from answering survey questions on issues such as abortion, school vouchers and gay marriage.”

Circuit Judge Ed Carnes wrote today’s ruling for a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit.

At pages 16 through 19 of the slip opinion, the court discusses whether a judge or judicial candidate who, as a result of answering the organization’s questionnaire, would likely be forced to disqualify or recuse himself from deciding certain hot button issues has suffered injury for purposes of standing to sue.

Posted at 10:40 PM by Howard Bashman

“Palin pick to be Alaska’s 2nd female on high court”: The Associated Press has a report that begins, “Alaska Gov. Sarah Palin has appointed a state judge who once served on the board of Planned Parenthood to the state Supreme Court, against the urgings of a conservative group who claimed the pick would put ‘another activist’ on the court.”

Posted at 10:18 PM by Howard Bashman

“3L Makes ‘Superb’ First Impression in the D.C. Circuit”: Mike Scarcella has this post at “The BLT: The Blog of Legal Times.”

Posted at 8:55 PM by Howard Bashman

“State high court denies Franken bid for election certificate; The Democrat had sought to be seated in the U.S. Senate provisionally while Republican Norm Coleman’s lawsuit plays out; Meanwhile, Franken also is pressing to have that suit dismissed”: The Minneapolis Star Tribune has this news update.

And The Associated Press reports that “Court rejects Franken’s bid to be seated in Senate.”

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

Posted at 5:33 PM by Howard Bashman

“Thoughts of Storm Troopers Filling Spy Case”: This afternoon at’s “Threat Level” blog, David Kravets has a post that begins, “Legal scholars, the blogopshere and the twitterati have been scratching their heads for a week following the Obama administration’s assertion that it might ‘withdraw’ classified documents at the center of a closely watched spy case.”

Posted at 5:15 PM by Howard Bashman

“Layoffs at the Volokh Conspiracy”: Orin Kerr has this post.

Meanwhile, readers of “How Appealing” may have noted that having too much billable work for appellate clients resulted in no new posts appearing at this blog between 2:50 p.m. on Wednesday, March 4, 2009 and 11:20 a.m. on Thursday, March 5, 2009. For the record, slightly more than three hours of sleep were also enjoyed during that period.

Posted at 5:12 PM by Howard Bashman

“Court upholds most charges against ex-Ala. gov”: The Associated Press has a report that begins, “A federal appeals court on Friday upheld most of the bribery and corruption charges against former Alabama Gov. Don Siegelman and all of the charges against former HealthSouth CEO Richard Scrushy.”

And The Birmingham News has an update headlined “Lawyer: Former Alabama Gov. Don Siegelman disappointed but upbeat after appeals court rules.”

You can access today’s 68-page, per curiam ruling of a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit at this link.

Posted at 2:40 PM by Howard Bashman

“Court Vacates Ruling on Indefinite Detention of Legal Residents; Justices Decline to Take Up Case of Suspected al-Qaeda Agent”: Robert Barnes of The Washington Post has this news update.

Greg Stohr of Bloomberg News reports that “U.S. High Court Drops ‘Enemy Combatant’ Fight, Dismisses Appeal.”

James Vicini of Reuters reports that “US justices dismiss accused al Qaeda agent’s case.”

At “The BLT: The Blog of Legal Times,” Tony Mauro has a post titled “Supreme Court Orders Dismissal of al-Marri Case.”

You can access today’s order of the Supreme Court of the United States at this link.

Posted at 2:34 PM by Howard Bashman

U.S. Court of Appeals for the Federal Circuit demotes Seventh Circuit Judge Richard A. Posner to “District Judge” status: See this non-precedential decision (at page two) that the Federal Circuit issued today. In the Federal Circuit’s defense, surely Judge Posner has been called worse things than “District Judge,” notwithstanding how greatly he is revered here at “How Appealing.”

Thanks much to the reader (no, it wasn’t Judge Posner himself) who kindly drew this to my attention moments ago.

Posted at 11:50 AM by Howard Bashman

“Although the Ohio Constitution provides a general right to bear arms, the state certainly does not have a ‘clear public policy’ of allowing employees to possess firearms on the premises of their private employers.” A unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit today issued this opinion rejecting a former UPS employee’s claim that he was wrongfully discharged “in violation of the public policy embodied in Article I, sec. 4 of the Ohio Constitution, which guarantees Ohio citizens the right to bear arms for their defense and security.”

According to today’s opinion, “In accordance with written company policy, UPS prohibits its employees from possessing firearms while on its property.”

Posted at 10:35 AM by Howard Bashman

What’s going on? Yesterday, I filed this Brief for Appellants in the Superior Court of Pennsylvania in fourteen consolidated appeals that have previously received some press coverage. SeeJudge Asks Pa. Appeals Court to Uphold Dismissal of Consolidated HRT Cases“; “Pa. Judge Denies Another Breast Cancer-HRT Claim“; and “HRT Patient’s Personal Injury Claim Found to Be Time-Barred” (all freely available via

One week from today, on the afternoon of Friday the 13th, I’ll be in New Orleans to participate as a speaker at a Loyola Law Review symposium titled “On the Brink: The Judiciary’s Tug of War with Technology.” The visit will mark this Cajun food fan’s first ever visit to New Orleans. Readers who have suggestions for great places to visit — other than the nearby Bashman Bayou, which of course is already on my list — and great places to eat in New Orleans are invited to forward those suggestions via email.

On Tuesday, March 17, 2009, I’ll be arguing another appeal before a three-judge Pa. Superior Court panel in a criminal case where my client is raising a Confrontation Clause challenge to his conviction. I’ll try to post those briefs here in advance of that oral argument.

And on Thursday, June 11, 2009, I’ll be speaking at the 2009 Kentucky Bar Association Annual Convention in Covington, Kentucky about the U.S. Supreme Court‘s current Term. This will be my first time back in the Cincinnati region since September 2006, when I argued this case before a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit.

Posted at 10:27 AM by Howard Bashman

In commentary available online from FindLaw: Marci A. Hamilton has an essay entitled “Pleasant Grove City v. Summum: The Supreme Court’s Puzzling, Fascinating New Establishment Clause Decision.”

Julie Hilden has an essay entitled “The Defamation Lawsuit Against One of the ‘Freakonomics’ Authors: Analyzing the U.S. Court of Appeals for the Seventh Circuit’s Decision.”

And Joanna Grossman has an essay entitled “Sex-Stereotyping and Dress Codes Under Title VII: Why Courts Can’t Get it Right.”

Posted at 8:20 AM by Howard Bashman

“Ruling could spur tougher drug warnings; Mass. firms’ plans unclear”: This article appears today in The Boston Globe, along with an editorial entitled “The court rules for patients.”

And today’s edition of USA Today contains an editorial entitled “Injured consumers win much-needed day in court; Allow lawsuits, but make plaintiffs prove deception or negligence.” In response, Bert Rein has an op-ed entitled “Tragic injury makes bad law; Let experts, not juries, determine medical products’ risks and benefits.”

Posted at 8:15 AM by Howard Bashman

“Dems move to overturn shield for device makers”: The Associated Press has a report that begins, “A day after the Supreme Court decided that federal rules do not protect drugmakers from state lawsuits, Democrats in Congress moved to overturn a decision that has shielded medical device companies from similar legal action.”

Reuters reports that “Democrats seek to reverse device court ruling.”

And Dow Jones Newswires report that “Democrats Propose Bill To Reverse Key Medical Device Ruling.”

Posted at 8:07 AM by Howard Bashman

“US cites Boston psychiatrist in case vs. drug firm; Complaint alleges kickbacks to MDs”: This article appears today in The Boston Globe.

Posted at 8:02 AM by Howard Bashman