How Appealing

Wednesday, March 13, 2013

Enquiring about the status of First Circuit Judge Michael Boudin: People who follow the opinion output of the U.S. Court of Appeals for the First Circuit no doubt have noticed that Judge Boudin has not written any published majority opinions of that court since this opinion issued on December 3, 2012.

What's more, published opinions that have issued since then from three-judge panels that included Judge Boudin have contained footnotes stating that "Judge Boudin heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's opinion." Indeed, two such opinions issued from the First Circuit earlier today (see here and here).

In the past, a judge's long-term unavailability might indicate that the judge in question is too ill or otherwise incapacitated to take part in the decision-making process. Although this might not even ordinarily be worthy of note, Judge Boudin is a very highly regarded jurist whose decisions will come directly or indirectly before the U.S. Supreme Court for review in several high-profile cases in the weeks ahead. If any First Circuit-based practitioners wish to share whatever information they may have concerning this matter with the many other appellate practitioners who read this blog, I can be contacted at appellateblog [at]
Posted at 10:38 PM by Howard Bashman

"Divided appellate panel upholds terrorist conviction of Lodi's Hamid Hayat": Sam Stanton, Denny Walsh, and Stephen Magagnini of The Sacramento Bee have this news update.

Bob Egelko of The San Francisco Chronicle has a news update headlined "Court upholds Lodi terrorist conviction."

And The Associated Press reports that "Appeals court upholds California terror conviction."

You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 10:12 PM by Howard Bashman

"Orie Melvin judge wants removal from Pennsylvania Supreme Court addressed": Paula Reed Ward of The Pittsburgh Post-Gazette has a news update that begins, "The judge who will sentence suspended Pennsylvania Supreme Court Justice Joan Orie Melvin ordered the attorneys in the case Wednesday to address her removal from the court in briefs due next month."

And The Pittsburgh Tribune-Review has a news update headlined "Melvin attorneys get deadline to address removal from high court."
Posted at 09:40 PM by Howard Bashman

"Supreme Court Ruling Against EPA Inspires New Novel": Damon W. Root has this post today at's "Hit & Run" blog about this new book.
Posted at 09:36 PM by Howard Bashman

"Lawyer expects Supreme Court to uphold gay marriage": Greg Toppo of USA Today has an article that begins, "A well-known attorney due to ask the U.S. Supreme Court this month to strike down a California law banning same-sex marriage says the high court may very well present a united front in favor of gay and lesbian rights."
Posted at 09:31 PM by Howard Bashman

"The Threat of 'Innovator Liability': Judges hold a drug maker liable for a drug it didn't produce." This editorial will appear Thursday in The Wall Street Journal.
Posted at 09:23 PM by Howard Bashman

"Aaron Swartz Lawyers Accuse Prosecutor Stephen Heymann Of Misconduct": Ryan Grim and Ryan J. Reilly of The Huffington Post have this report discussing a partially redacted letter dated January 28, 2013.
Posted at 04:44 PM by Howard Bashman

"Ill. gov. wants appeal of concealed carry ruling": The Associated Press has this report.
Posted at 04:32 PM by Howard Bashman

"Diverse high court families mirror country": The Associated Press has a report that begins, "With their Ivy League pedigrees and East Coast addresses, Supreme Court justices often are rightly described as unrepresentative of the nation. But in one area, the justices look a lot like the rest of America. Members of the court have firsthand experience with divorce and adoption, as well as making it alone without ever getting married."
Posted at 02:03 PM by Howard Bashman

"Obama To Senate Dems: We Need Solution To GOP's Confirmation Filibusters." Brian Beutler has this post at TPM DC.
Posted at 01:54 PM by Howard Bashman

"Greenpeace Blocked from Shell Arctic Ships": Today at her "Trial Insider" blog, Pamela A. MacLean has this post reporting on a ruling that the U.S. Court of Appeals for the Ninth Circuit issued late yesterday.
Posted at 01:14 PM by Howard Bashman

"Federal judge: Copyright troll attorneys hiding something; Minnesotan and associates were summoned in copyright case." This article appears today in The Minneapolis Star Tribune.
Posted at 01:03 PM by Howard Bashman

Unanimous three-judge Sixth Circuit panel holds that Mensing does not categorically prohibit all failure to warn personal injury suits brought against manufacturers of generic prescription drugs: You can access today's ruling of the U.S. Court of Appeals for the Sixth Circuit in Fulgenzi v. PLIVA, Inc. at this link.

The opening paragraph of the opinion, written by Circuit Judge Danny J. Boggs, summarizes the decision as follows:

Fulgenzi argues that her case is different [from Mensing]: after the branded-drug manufacturer of metoclopramide strengthened the warnings on its label, PLIVA failed to update its label as required by federal law -- rendering compliance with both federal and state duties no longer impossible. PLIVA argues that Mensing admits of no such exception, and alternatively that Fulgenzi is improperly trying to bring a state tort suit premised on violation of federal law. Fulgenzi has the stronger argument, and we reverse the decision of the district court.
This opinion issued at a crucial time, as the U.S. Supreme Court on Tuesday, March 19, 2013 will hear oral argument on a case further questioning Mensing's limits.
Posted at 11:04 AM by Howard Bashman

"Ups and Downs of Arguing Cases of Apparent First Impression": Yesterday's edition of The Legal Intelligencer -- Philadelphia's daily newspaper for lawyers -- contained this month's installment of my "Upon Further Review" column.
Posted at 10:58 AM by Howard Bashman

"In Bible Belt, rift emerges in pro-gay marriage movement": Reuters has this report.
Posted at 10:52 AM by Howard Bashman

"Will our next Supreme Court Justice usher in a new progressive agenda?" Curt Levey has this essay at
Posted at 09:06 AM by Howard Bashman

"Mom Says Man's Sadomasochistic Sex With Mentally Ill Daughter Was Abuse, Takes Case To Supreme Court": Alaine Griffin has this article today in The Hartford Courant.
Posted at 09:05 AM by Howard Bashman

"The Fourth Circuit's obviously (and profoundly) mistaken habeas grant premised on the alleged facial unconstitutionality of Virginia's 'anti-sodomy provision'": Law professor Kevin C. Walsh has this post today at his blog, "walshslaw."

My earlier coverage of yesterday's Fourth Circuit ruling appears at this link.
Posted at 09:01 AM by Howard Bashman

"Bucks County Judge Alan Rubenstein sues to keep his job past age 70": This article appears today in the Bucks County (Pa.) Courier Times. The newspaper has posted a copy of the complaint initiating suit at this link.
Posted at 08:54 AM by Howard Bashman

"Dad: Aaron Swartz aimed to make world better." Today's edition of The Boston Herald contains an article that begins, "Tech pioneer and internet activist Aaron Swartz was remembered at a memorial service at the Massachusetts Institute of Technology yesterday as a young genius who wanted to make information freely available to the public."

And Declan McCullagh of c|net has an article headlined "From 'WarGames' to Aaron Swartz: How U.S. anti-hacking law went astray; The 1983 movie 'WarGames' led to an anti-hacking law with felony penalties aimed at deterring intrusions into NORAD; Over time, it became broad and vague enough to ensnare the late Aaron Swartz."
Posted at 08:40 AM by Howard Bashman

"Sonia Sotomayor and Rita Moreno discuss men, moms, love, life": Amy Argetsinger has this post at "The Reliable Source" blog of The Washington Post.
Posted at 08:32 AM by Howard Bashman

In the March / April 2013 issue of Columbia Journalism Review: Beth Schwartzapfel has an article headlined "Inside stories: Nearly 1 in 100 Americans is incarcerated; But how well can journalists cover prisons if they can't get past the gates?"

And James Ridgeway has an article headlined "Fortresses of solitude -- Even more rare: journalist access to prison isolation units."
Posted at 08:14 AM by Howard Bashman

"Bayer Joins Merck in Fighting Generic Drugs Case": Greg Stohr of Bloomberg News has this report.
Posted at 08:05 AM by Howard Bashman

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