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Tuesday, January 24, 2006 Available online from law.com: Marcia Coyle reports that "Stakes Rise for Business in High Court Term; Cases ranging from patents to RICO have business litigators predicting a significant term." T.R. Goldman has an article headlined "Now It's the Full Senate's Turn to Look at Alito." Justin Scheck has an article headlined "9th Circuit: Troubled Lawyers Not Ineffective Per Se." The ruling is here. And Scheck also has an article headlined "Lerach Probe Obstacle: Lawyers." "On Party Lines, Panel Approves Alito for Court": This article will appear Wednesday in The New York Times. The Washington Post on Wednesday will report that "Alito Seems Assured Of High Court Seat; Panel Backs Nominee; Debate Starts Today." Wednesday's edition of The Hill will report that "Alito clears on party-line vote." Wednesday in Financial Times, Patti Waldmeir reports that "Senate panel approves Alito as nominee." The Guardian (UK) reports on Wednesday that "Panel votes to back Alito for supreme court." And BBC News reports that "Panel approves Bush court nominee." "High Court Delays Fla. Inmate Execution": The Associated Press provides this report. Posted at 09:58 PM by Howard Bashman "Enron trial will stay in Houston, judge orders": Mary Flood of The Houston Chronicle provides this news update. And that newspaper today contains an article headlined "Skilling: A private man's public ordeal; The former CEO is one of the most enigmatic figures in the Enron saga." "Scalia under fire for Colorado conference": The Rocky Mountain News provides this update. Posted at 08:40 PM by Howard Bashman "Alito would likely change Supreme Court in unexpected ways": Stephen Henderson and James Kuhnhenn of Knight Ridder Newspapers provide this report. The Associated Press provides reports headlined "Casey announces endorsement of Alito" and "Dodd will oppose Alito; Lieberman mum on decision." FOXNews.com reports that "Fixes Considered for 'Broken' Supreme Court Confirmation Process." And Voice of America News reports that "US Senate to Open Debate on Supreme Court Nominee." Debate is scheduled to begin on the floor of the U.S. Senate at 9:30 a.m. Wednesday morning. "High Court Nominee Alito Goes to Full Senate": Nina Totenberg had this report (RealPlayer required) on this evening's broadcast of NPR's "All Things Considered." Earlier, on today's broadcast of "Morning Edition," Totenberg previewed the committee's vote in a segment entitled "Senate Panel Set to Vote on Alito." What's next -- criminal defense counsel via BlackBerry? Merely phoning it in won't cut it when it comes to a defendant's right to counsel at a change of plea hearing, Circuit Judge Terence T. Evans ruled today in an opinion issued on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit. Posted at 05:35 PM by Howard Bashman "Why Democrats are united against Alito: Solidarity against the high court nominee could aid electoral gains, they say, even if he's confirmed." Gail Russell Chaddock will have this article Wednesday in The Christian Science Monitor. Of course, "united" for present purposes excludes the vote of U.S. Senator Ben Nelson (D-NE), thus far the lone Democratic Senator who has announced plans to vote in favor of the nominee. Senator Nelson participated in a lengthy interview on the topic on this morning's broadcast of C-SPAN's "Washington Journal." You can view the segment by clicking here (RealPlayer required). A busy day for Social Security number-related litigation in the federal appellate courts: The U.S. Court of Appeals for the Fourth Circuit today issued a decision resolving "whether a person who cannot show actual damages under the [Privacy] Act [for the wrongful disclosure of his Social Security number] may still recover costs and reasonable attorney fees." By a vote of 2-1, the Fourth Circuit has ruled: "We now affirm the district court's conclusion that Doe is entitled to costs and reasonable attorney fees even though he suffered no actual damages." Meanwhile, the Second Circuit today affirmed the dismissal of federal civil rights claims filed by a woman who refused to give her Social Security number to her employer for fear of identity theft and was therefore fired. The appellate court assumed, for purposes of its ruling, that the defendants were state actors and thus addressed the woman's claims on the merits. Forthcoming speaking events: In what could be viewed as a cruel parody of last night's "Nightline" lead investigative report (see the video here), in mid-March 2006 I'll be speaking at a lunch meeting of the Columbus, Ohio chapter of the Federalist Society. And in mid-July 2006, I'll be in Brainerd, Minnesota to speak to an assemblage of federal judges. "Committee approves Alito nomination": Lyle Denniston has this post at "SCOTUSblog." Posted at 04:28 PM by Howard Bashman Reader mail: This week's installment of my law.com column, titled "In Nazi Memorabilia Fight, Yahoo Can't Win for Losing," has generated some reader mail from California. An attorney based in Los Angeles emailed, "Thank you for interpreting the La Ligue case. I truly had no idea what was going on when I scanned the opinion(s)." And a law professor from one of Northern California's finest schools has emailed: I read your interesting article on law.com about the 9th Circuit's Yahoo opinion. The king of such opinions remains, I believe, Tidewater Transfer (Nat. Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949)), the case that upheld the diversity statute defining citizens of the District of Columbia as citizens of a state for Art III purposes. The vote was 7-2 that DC could not be a "state" for purposes of Art III diversity jurisdiction, and 6-3 that Congress could not place such suits in Art III courts. The 2 who thought DC counted as a "state" combined with the 3 who thought that Congress could put suits between a citizen of a state and a citizen of DC in an Art III court even though such a suit did not come within the diversity jurisdiction to produce a 5 vote majority to uphold the statute -- even though both grounds on which the statute could have been sustained were decisively rejected.As Justice Felix Frankfurter's dissenting opinion concludes, "A substantial majority of the Court agrees that each of the two grounds urged in support of the attempt by Congress to extend diversity jurisdiction to cases involving citizens of the District of Columbia must be rejected-but not the same majority. And so, conflicting minorities in combination bring to pass a result-paradoxical as it may appear-which differing majorities of the Court find insupportable." Posted at 04:10 PM by Howard Bashman "Senate Judiciary Committee Approves Alito Nomination": law.com's T.R. Goldman provides this news update. Posted at 03:54 PM by Howard Bashman "BlackBerry blackout could be costly; A shutdown of the wireless email system would have a profound financial impact on businesses": CNNMoney.com provides this report. Posted at 03:50 PM by Howard Bashman Senior Fourth Circuit Judge John D. Butzner, Jr. has died: As noted in this announcement, on February 2, 2006 the Fourth Circuit will hold a Memorial Ceremony and Portrait Unveiling in his honor. Posted at 02:55 PM by Howard Bashman "A Law Clerk Hiring Update: Nino Rocks Out!" This post appears today at "Underneath Their Robes." Posted at 02:45 PM by Howard Bashman "Alito Gets Partisan Thumbs Up From Senate Judiciary Committee": FOXNews.com provides this report. And Thomas Ferraro of Reuters reports that "Senate panel approves Alito for top court." Earlier today, on the Fox News Channel, Pennsylvania's Democratic governor, Edward G. Rendell, spoke favorably of the Alito nomination. You can view the video and access the transcript here. Governor Rendell's wife, Marjorie O. Rendell, is herself a judge serving on the U.S. Court of Appeals for the Third Circuit. The Senate Judiciary Committee votes 10-8, along party lines, to recommend confirmation of Samuel A. Alito, Jr. to the U.S. Supreme Court: The vote has just occurred, and the committee's business meeting has adjourned. Jesse J. Holland of The Associated Press reports that "Alito Nomination Goes to Full Senate." Posted at 12:20 PM by Howard Bashman The St. Paul Pioneer Press is reporting: Today's newspaper contains an article headlined "Visitation: a right or privilege? Grandfather, mother locked in court fight over grandchildren." And yesterday's newspaper contained an article headlined "Once behind bars, she's ready to take the bar." "FSU wants no part of this fight; Lobbyists try to hire a lawyer from FSU to sue the Legislature, but the school's president says no, 'is there a good Gator' to do it?" The St. Petersburg Times contains this article today. Posted at 11:58 AM by Howard Bashman "Hatch thought CBS paid the taxes; The Survivor winner testifies that he believed taxes on his prize were settled, adding that he did not read a contract that said contestants are responsible for them": This article appears today in The Providence (R.I.) Journal. Posted at 11:42 AM by Howard Bashman "Attacker of Duchamp's Urinal Sentenced": The Associated Press provides this report. According to the article, "The January urinal attack was not the first for Pinoncelli. He urinated on the piece during a 1993 exhibition in Nimes in southern France." You can view the urinal at this link. Posted at 11:40 AM by Howard Bashman Available online from Mother Jones: Today, that magazine's web site has posted an essay by Paul Rogat Loeb entitled "Alito and Roberts: Evasion Confirmed; John G. Roberts decision in Oregon should alert us to the danger of confirming Samuel Alito to the Supreme Court" and an essay by Barbara Coombs Lee entitled "Role Reversal: The Supreme Court on Physician Aid-in-Dying; In Oregon, the liberal justices give a lesson in judicial conservatism." Posted at 10:54 AM by Howard Bashman "Sex, Lies and OxyContin": Columnist John Tierney has this op-ed (TimesSelect subscription required) today in The New York Times. Posted at 10:45 AM by Howard Bashman "Justices Curb States' Immunity From Suit": Today in The New York Times, Linda Greenhouse has an article that begins, "In its latest federalism decision, the Supreme Court ruled on Monday that states are not immune from private lawsuits brought under federal bankruptcy law." Posted at 10:44 AM by Howard Bashman "US military issues new execution regulations": Reuters provides a report that begins, "In a little-noticed move, the U.S. Army has issued new regulations governing the death penalty, raising speculation that the military might be preparing for its first execution since 1961." And BBC News reports that "US army changes execution rules." Lest you forget about this long-waiting, often overlooked Fourth Circuit nominee: The News & Observer of Raleigh, North Carolina today contains an article headlined "Judge spares killer; Death row inmate mentally retarded" that begins, "A federal judge has removed a Bladen County man from the state's death row because he is mentally retarded, ruling that he should not be executed for murdering three people in 1984." The federal judge who issued the ruling is Fourth Circuit nominee Terrence W. Boyle. Posted at 10:15 AM by Howard Bashman "The issue before this Court is one of first impression -- namely, whether Title VII plaintiffs can bring a class action for injunctive or declaratory relief in the same action that seeks compensatory damages under Fed. R. Civ. P. 23(b)(2)." The foregoing quote comes from Senior Circuit Judge Damon J. Keith's dissenting opinion from a three-judge Sixth Circuit panel's ruling issued today. In the conclusion to his dissent, Judge Keith writes, "The majority improperly holds that Title VII plaintiffs will never be able to obtain certification under Fed. R. Civ. P. 23(b)(2) to collectively enforce the rights and remedies under both the 1991 Civil Rights Act, 42 U.S.C. § 1981a, and Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e." Posted at 10:10 AM by Howard Bashman Too many Cooks don't spoil the dormant Commerce Clause argument: Those who enjoy Eleventh Circuit decisions featuring two judges with the last name Carnes (see, e.g., this opinion) may likewise enjoy today's circuit-splitting dormant commerce clause ruling of a unanimous three-judge Sixth Circuit panel containing two judges with the last name Cook. Posted at 09:55 AM by Howard Bashman "Alito Likely to Win Committee Approval": Jesse J. Holland of The Associated Press provides this report. At 9:30 a.m. eastern time -- just moments from now -- the Senate Judiciary Committee will hold its executive business meeting (also known as the mark-up) on the nomination, at which time the committee members will vote. Each Senator is entitled to speak for ten minutes, and there are 18 Senators on the committee, so the meeting could take longer than three hours. You can view the session live, online via C-SPAN by clicking here (RealPlayer required). "Alito Is Expected to Clear Senate Judiciary Committee Today; The full Senate could consider the Supreme Court nominee within days; Votes are likely to follow party lines, with a few exceptions": Maura Reynolds has this article today in The Los Angeles Times. Today in The San Francisco Chronicle, Bob Egelko reports that "1985 application focus of debate as Alito vote nears." In The Pittsburgh Post-Gazette, Michael McGough reports that "Senate committee set to approve Alito for U.S. Supreme Court." The Washington Times reports that "Alito vote factors in Senate races." The Arkansas Democrat-Gazette reports that "Opponents in Arkansas lobby hard against Alito; LR offices of Lincoln, Pryor attract activists." The New York Sun reports that "Republicans Relocate Alito Vote." And The Daily Tar Heel reports that "Gerhardt weighs in on future of Alito." "Ad case wins another look; Supreme Court wants challenge by state's Right to Life group reviewed": The Milwaukee Journal Sentinel contains this article today. Michael McGough of The Pittsburgh Post-Gazette reports today that "Supreme Court avoids ruling on new campaign finance law." In USA Today, Joan Biskupic reports that "Advocacy groups can challenge limit on ‘issue ads.'" And The Washington Times reports that "High court remands ruling in campaign-law challenge." "Supreme Court Refuses Review in BlackBerry Patent Dispute": This article appears today in The New York Times. The Washington Post reports today that "Court Rejects BlackBerry Appeal; Ruling Could End Most U.S. Service." The Los Angeles Times reports that "BlackBerry Appeal Is Rejected." USA Today reports that "High court refuses to hear BlackBerry-maker case." The Toronto Globe and Mail reports that "Top U.S. court rejects RIM review." And The New York Sun contains an article headlined "Blackberry Jam: Thumbing New Yorkers Rue a Ruling of the Court" and an editorial entitled "Blackberry Jam." "Supreme Court Ruling Could Spur Partisan Judicial Campaigns; Justices void restrictions on Minnesota judges' soliciting of money and declaring party ties. Effect of the decision could spread": David G. Savage has this article today in The Los Angeles Times. The Minneapolis Star Tribune reports today that "Court clears way for judicial races to turn political; Candidates can now solicit contributions and accept party backing; Opponents may seek a constitutional amendment." And The St. Paul Pioneer Press reports that "Bench candidates can still seek a party's nod; High court declines to revisit restrictions." "A Waiting Period on Abortion: If you choose not to decide, you still have made a choice." Yesterday in The Wall Street Journal, James Taranto had an op-ed (free access) that begins, "The astonishing thing about Justice Sandra Day O'Connor's opinion in Ayotte v. Planned Parenthood--last week's case involving New Hampshire's Parental Notification Prior to Abortion Act--is that it was for a unanimous court." Posted at 06:45 AM by Howard Bashman "Exclusive: Supreme Ethics Problem? What Was Supreme Court Justice Antonin Scalia Doing on Day of Supreme Court Swearing-In?" As reported on last night's broadcast of the ABC News program "Nightline," "At the historic swearing-in of John Roberts as the 17th chief justice of the United States last September, every member of the Supreme Court, except Antonin Scalia, was in attendance. ABC News has learned that Scalia had instead was on the tennis court at one of the country's top resorts, the Ritz-Carlton hotel in Bachelor Gulch, Colo., during a trip to a legal seminar sponsored by the Federalist Society." ABCNews.com offers this written report. And online video of last night's segment can be accessed via this link.  
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