How Appealing

Thursday, February 6, 2020

“How quickly should courts change the law? Florida tests the limit.” Patrik Jonsson of The Christian Science Monitor has this report.

Posted at 8:50 PM by Howard Bashman

“The Trump Lawyer Who Survived: The most theatrical lawyer in the impeachment trial is a radio host who’s managed to win the president’s trust; So . . . how about the Supreme Court?” Darren Samuelsohn has this article online at Politico Magazine.

Posted at 8:44 PM by Howard Bashman

“Defendants want en banc review of ‘radical’ 2nd Circuit insider trading decision”: Alison Frankel’s “On the Case” from Thomson Reuters News & Insight has this post.

Posted at 8:27 PM by Howard Bashman

“Harvey Weinstein Attorneys Paving Way for Possible Appeal; Defense is highlighting prosecutors’ failure to turn over key evidence and judicial rulings”: Deanna Paul of The Wall Street Journal has this report.

Posted at 8:14 PM by Howard Bashman

“Judge permanently blocks another Trump immigration policy; Obama appointee also defends nationwide injunctions”: Josh Gerstein of Politico has this report.

Posted at 7:24 PM by Howard Bashman

“Small dollars, big changes: Web-based donations aimed to democratize our campaigns; They also radicalized both parties.” Law professor Richard Pildes has this essay online at The Washington Post.

Posted at 4:54 PM by Howard Bashman

“Trump and the chief justice: Impeachment is over, but they’re not done with each other.” Robert Barnes of The Washington Post has this report.

Posted at 4:51 PM by Howard Bashman

“Downloading public court documents costs a dime a page — is that legal? Federal courts use hefty PACER fees to pay for non-PACER projects.” Timothy B. Lee of Ars Technica has this report.

Posted at 4:18 PM by Howard Bashman

“Why Democrats Aren’t Naming Names”: At the “Law & Liberty” blog, John O. McGinnis has a post that begins, “Candidate Donald Trump’s decision to provide a list of jurists from which he would appoint his first Supreme Court justice was both a brilliant political stroke and an act in the public interest — two qualities that are rarely combined.”

Posted at 4:14 PM by Howard Bashman

Recent Second Circuit decision provides minimal explanation of that court’s “mini‐en banc process”: In exactly three months from today, this blog will celebrate its 18th birthday, after which its posts will be expected to behave as mature adults. But until then . . .

Whether you have been reading this blog for all or a significant part of its nearly 18-year history, you know that one recurring theme over the many years has been the Second Circuit‘s great reluctance to grant en banc rehearing. Heck, until recently that court could not even agree on consistently referring to the process as “in banc” or “en banc” review.

A ruling that a unanimous three-judge Second Circuit panel issued on Monday has confirmed that the court’s reluctance to grant full-court review has essentially been a sham all along, as a so-called “mini-en banc process” exists that allows for the overruling of existing precedent so long as sufficient votes do not exist to necessitate en banc review to determine whether or not the overruling should in fact occur.

Let me explain further. Ordinarily, en banc review is required for a federal appellate court to overturn existing precedent from a three-judge panel. By contrast, the Second Circuit’s “mini-en banc process” works as follows. If a subsequent three-judge panel wants to overturn existing Second Circuit precedent, it merely needs to circulate its opinion to the rest of the Court. Then, unless sufficient votes exist to take the case en banc to preserve existing precedent, the denial of en banc review will result in the overruling of existing precedent in the absence of en banc review.

As a result, the Second Circuit’s extreme reluctance to grant en banc review simultaneously makes it impossible and easier than ever to overrule precedent. I wonder whether any legal academics have written to discuss whether this mini-en banc procedure, which the Seventh Circuit and perhaps some other circuits also use on occasion, in fact complies with the spirit and intent of the ordinary operation of the en banc process.

A moment’s worth of online research has revealed that in January 2016, the New York Law Journal published an article headlined “Mini-En Banc Review In the Second Circuit” by Steven M. Witzel and Samuel P. Groner.

Posted at 4:02 PM by Howard Bashman

“Courts are the next front in Trump’s battle over presidential powers”: Lawrence Hurley and Jan Wolfe of Reuters have this report.

Posted at 10:50 AM by Howard Bashman