How Appealing

Tuesday, February 24, 2015

Ninth Circuit opts for more Model Mayhem: Today, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit granted panel rehearing in the case captioned Jane Doe No. 14 v. Internet Brands, Inc. dba You can access today’s order at this link.

In coverage of today’s order, Scott Graham of The Recorder reports that “Ninth Circuit Agrees to Revisit Ruling in Model Rape Case.” You can freely access the full text of the article via Google.

The very same three-judge Ninth Circuit panel issued its original, unanimous ruling in the case on September 17, 2014. My earlier coverage of that ruling appears here and here.

Writing at the “Technology & Marketing Law Blog,” Venkat Balasubramani discussed the Ninth Circuit’s original ruling in a post titled “9th Circuit Creates Problematic ‘Failure To Warn’ Exception to Section 230 Immunity — Doe 14 v. Internet Brands.”

Posted at 11:28 PM by Howard Bashman

“Practice Points: Dr. Schindler’s ‘Absolut Schrecklich’ Supreme Court Petition Snares Howard Shipley, Or, Learned German Does Not Make Legal English.” James Ching has this interesting essay online at

Discussing the attorney’s response to the U.S. Supreme Court’s order to show cause, Ching writes:

Unaddressed are two major issues. First, was it a violation of professional principles to allow Schindler to write briefs so bad that they would prejudice his case? Schindler obviously had no idea that his briefs were utterly terrible, and as Schindler’s lawyer, Shipley had the duty to counsel him they were, mildly-put, inadvisable. Shipley had two previews of this bad writing in the Circuit and his explanation that the Circuit did not take offense simply does the answer the direct question of Shipley’s own professional responsibility to his client.

Secondly, it is clear that Shipley materially aided Schindler in the unauthorized practice of law, issuing the petition under his, not Schindler’s signature. In this light, it was a grievous lack of candor to simply acknowledge in a footnote that Schindler “should be recognized for his significant contributions to this Petition.” Moreover, argumentation, whether live or in briefs, is uniformly restricted to licensed attorneys, and the Petition is a prime example of what happens when the inmates rule the asylum.

And at the blog “Legal Ethics Forum,” John Steele recently had a post titled “Foley partner files response to SCOTUS regarding unorthodox amicus brief.” Although Steele can be faulted for thinking that this matter involved the filing of an amicus brief, his post has attracted some interesting comments. In particular, Neal Goldfarb (author of the “LAWnLinguistics” blog) has a very interesting comment.

Posted at 11:00 PM by Howard Bashman

“New Orleans tour guides’ licensing fight turned away by U.S. Supreme Court”: The Times-Picayune of New Orleans has this report.

Posted at 10:30 PM by Howard Bashman

“Administration: No quick fix if court kills health subsidies.” The Associated Press has this report.

Reuters reports that “U.S. health official says no fix if Obamacare subsidies thrown out.”

In Wednesday’s edition of The New York Times, Robert Pear will have an article headlined “Congress Is Told Ruling Against Health Law Would Impact Poor.”

And at “SCOTUSblog,” Lyle Denniston has a post titled “U.S.: It has no fix if Court nullifies health care subsidies.”

Posted at 9:02 PM by Howard Bashman

“Court nixes Occupy marchers’ suit over mass arrest on bridge”: The Associated Press has this report on the substance of the ruling that I discuss in the post immediately below.

And Reuters reports that “New York court dismisses lawsuit over Occupy Wall Street arrests.”

And the final paragraph of my post immediately below has also precipitated the following email from a reader who seems to know a thing or two about the subject:

[W]hile I agree with you entirely that “en banc” is the preferred term, have you considered the fact that 28 U.S.C. sec. 46 still says “in banc”? The Second Circuit’s use of “in banc” may not be just stubbornness, but deference to the principle that a statute generally overrides a rule. I suppose you could say that under the Rules Enabling Act, the change in the rules from “in” to “en,” postdating the statute, makes the “in” in the statute “of no further force or effect.” Still, the U.S. Code is still the U.S. Code, and Congress still makes the laws. Perhaps the court views the use of “in” as a “substantive right” that cannot be abridged by rulemaking….

Posted at 3:02 PM by Howard Bashman

Exemplifying how much the Second Circuit loathes rehearing en (or in) banc: Ordinarily, when a federal appellate court grants rehearing en banc to decide an appeal, the original three-judge panel’s decision is not only vacated, but the original three-judge panel loses control over the case, which is then instead pending before the full court for decision. Yesterday, however, the Second Circuit issued an order and a decision that justify my use of the wiggle-word “ordinarily” in the opening sentence of this post.

After the Second Circuit took what for it is the extraordinary step of granting rehearing en banc to decide a case, the original three-judge panel decided to flip the result in the case from a 2-to-1 ruling in favor of the plaintiffs to a unanimous ruling in favor of the defendants. Today’s unanimous three-judge panel ruling can be accessed here. The original three-judge panel’s ruling, reaching the opposite result by a vote of 2-to-1, can be accessed here.

Separately today, the full court issued an order explaining that in light of the three-judge panel’s new decision, “this case no longer warrants consideration by the in [sic] banc Court.”

For those keeping score at home, Circuit Judge Gerard E. Lynch‘s amended opinion for the three-judge panel correctly refers to rehearing “en banc,” while the Second Circuit Clerk’s Office still clings stubbornly to the now disfavored “in banc” label.

Posted at 1:45 PM by Howard Bashman

“Lawyer: HIV assault ruling could end all such military cases.” The Associated Press has a report that begins, “The attorney for a Kansas airman says a ruling by the nation’s highest military court that reversed his client’s conviction for exposing multiple sex partners to HIV will effectively end such prosecutions in the armed forces.”

You can access yesterday’s unanimous ruling of the U.S. Court of Appeals for the Armed Forces at this link.

Posted at 12:06 PM by Howard Bashman

The Appellate Rules and Forms Public Hearing in Washington, DC has been rescheduled for March 6, 2015: As reflected here (scroll down).

According to information that I have received, representatives of the ABA’s Council of Appellate Lawyers, the American Academy of Appellate Lawyers, the Appellate Section of the State Bar of Texas, and EarthJustice are scheduled to testify at the hearing.

You can access the public comments that those groups submitted, and all other public comments (including mine), via this link.

Posted at 11:54 AM by Howard Bashman

“Foley Atty In High Court Row May Have Broken Ethics Rules”: Andrew Strickler of has a report (subscription required for full access) that begins, “The Foley & Lardner LLP partner who drew a rare sanction threat from the U.S. Supreme Court for filing an impenetrable, jargon-packed petition he says was penned largely by his client may have breached professional conduct rules when he didn’t withdraw from the patent case, legal ethics experts said.”

Earlier this morning, I had this post collecting additional coverage.

Posted at 11:06 AM by Howard Bashman

“Constitution Check: Will the government’s global wiretap program ever be subject to challenge?” Lyle Denniston has this post today at the “Constitution Daily” blog of the National Constitution Center.

Posted at 10:55 AM by Howard Bashman

Access online today’s ruling of the U.S. Supreme Court in an argued case: Justice Elena Kagan delivered the opinion of the Court in Kansas v. Nebraska, No. 126-Orig. Chief Justice John G. Roberts, Jr. issued an opinion concurring in part and dissenting in part. Justice Antonin Scalia issued an opinion concurring in part and dissenting in part. And Justice Clarence Thomas issued an opinion concurring in part and dissenting in part, in which Justices Scalia and Samuel A. Alito, Jr. joined in full and in which Chief Justice Roberts joined in part. You can access the oral argument via this link.

Posted at 10:06 AM by Howard Bashman

“Chief justice could again swing Obamacare case in government’s favor”: Lawrence Hurley of Reuters has this report today.

Posted at 8:26 AM by Howard Bashman

“Justices Weigh Denial of Visa to Husband of U.S. Citizen”: Adam Liptak has this article in today’s edition of The New York Times.

Robert Barnes of The Washington Post reports that “High court divided on refusal of a visa to a U.S. citizen’s Afghan spouse.”

In today’s edition of The Los Angeles Times, David G. Savage has an article headlined “Supreme Court hears woman’s case on visa denial for Afghan husband.”

Lawrence Hurley of Reuters reports that “Supreme Court weighs case involving Afghan man barred from U.S.

And on yesterday evening’s broadcast of NPR’s “All Things Considered,” Nina Totenberg had an audio segment titled “Supreme Court Considers Visa Case For Foreign Spouses.”

You can access at this link the transcript of yesterday’s U.S. Supreme Court oral argument in Kerry v. Din, No. 13-1402.

Posted at 8:15 AM by Howard Bashman

“Supreme Court To Hear Abercrombie’s Religious Headscarf Case”: Nina Totenberg had this audio segment on today’s broadcast of NPR’s “Morning Edition.”

Posted at 8:12 AM by Howard Bashman

“Details on SCOTUS’ Sanction of Patent Attorney Howard Shipley”: Mark Wilson has this post at FindLaw’s “U.S. Supreme Court News & Information Blog.”

At “The Volokh Conspiracy,” Will Baude has a post titled “An instance of increased transparency at the Supreme Court.”

Tony Mauro of The National Law Journal has a Supreme Court Brief headlined “Five Questions Concerning the Curious Case of Howard Shipley” (subscription required for full access) in which Mauro not only links to my earlier coverage but also interviews New York University School of Law professor Stephen Gillers, a legal ethics expert.

And as of this very monent a total of 18 reader comments appear appended to a “Patently-O” post from Saturday titled “Foley Partner Responds to SCOTUS Show Cause Order: I had no choice and you’re overreacting.”

My four recent lengthy posts discussing various aspects of this matter in detail can be accessed here, here, here, and here.

Posted at 8:09 AM by Howard Bashman