How Appealing

Tuesday, March 28, 2006

"Court hears challenge to tribunals; Scalia stays on case despite public remarks": CNN.com provides this report.
Posted at 09:55 PM by Howard Bashman

"Supreme Court to hear patent injunction case": c|net News.com provides this report.
Posted at 09:08 PM by Howard Bashman

"Supreme Court Justices Question Law on Detainee Trials": Linda Greenhouse of The New York Times provides this news update.

And in Wednesday's edition of The Washington Post, Charles Lane will have an article headlined "Case Tests Power of Judiciary, President; Military Tribunals' Legality Is Debated."
Posted at 08:32 PM by Howard Bashman

"Supreme Court hears challenge to military tribunals": Carol Rosenberg of The Miami Herald provides this news update.
Posted at 08:25 PM by Howard Bashman

"Because I Say So: The Supreme Court takes the military tribunals out for a spin." Dahlia Lithwick has this Supreme Court dispatch online at Slate.
Posted at 08:24 PM by Howard Bashman

"Ryan trial deliberations to resume": The Chicago Tribune provides a news update that begins, "A federal judge announced this afternoon that she had rejected a defense request for a mistrial, added two alternates to the jury and planned to restart the deliberations in former Gov. George Ryan's trial."

The Chicago Sun-Times provides a news update headlined "Ryan judge replaces dismissed jurors."

And The Associated Press reports that "Two Jurors Replaced at Ex-Ill. Gov. Trial."
Posted at 05:20 PM by Howard Bashman

"High Court Hears Challenge to Military Tribunals": This lengthy segment (RealPlayer required) appeared on today's broadcast of NPR's "Talk of the Nation."

And today's broadcast of the public radio program "Here & Now" contained a segment entitled "Michael Isikoff on Scalia, GITMO" (RealPlayer required).
Posted at 05:15 PM by Howard Bashman

"Justice O'Connor and the 'Right to Die': Constitutional Promises Unfulfilled." Law Professor Michael Patrick Allen has this essay (abstract with link to download) online at SSRN (via "Legal Theory Blog").
Posted at 05:10 PM by Howard Bashman

"Military Tribunal Case Comes Before Skeptic Supreme Court": law.com's Tony Mauro provides this news update.
Posted at 04:54 PM by Howard Bashman

"Supreme Court Oral Argument: Hamdan v. Rumsfeld." You can now access online, on demand by clicking here (RealPlayer required) C-SPAN's broadcast of today's U.S. Supreme Court oral argument in Hamdan v. Rumsfeld.
Posted at 04:50 PM by Howard Bashman

"DeLay Says Justices 'Don't Get' Criticism": The Associated Press provides a report that begins, "Republican Rep. Tom DeLay said Tuesday that former and current Supreme Court Justices Sandra Day O'Connor and Ruth Bader Ginsburg 'don't get it' when they complain about conservative criticism of judges."
Posted at 04:40 PM by Howard Bashman

"Analysis: Hard day for government in Hamdan case." Lyle Denniston has this post at "SCOTUSblog."
Posted at 04:12 PM by Howard Bashman

"Justices Look Askance at War Tribunal Order": David G. Savage of The Los Angeles Times provides a news update that begins, "A Bush administration lawyer ran into sharp and skeptical questions from the Supreme Court today in defending the president's order to use specially arranged military tribunals for suspected war criminals."
Posted at 03:25 PM by Howard Bashman

On today's broadcast of NPR's "Day to Day": The broadcast contained segments entitled "Osama's Driver Takes Case to U.S. High Court" (featuring Dahlia Lithwick) and "Slate's Jurisprudence: Senate's Link to Hamdan" (featuring Emily Bazelon). RealPlayer is required to launch these audio segments.
Posted at 03:22 PM by Howard Bashman

"Law Blog = Blawg": In the current issue of Pennsylvania Law Weekly (produced by the folks who publish The Legal Intelligencer), Chelsea Gilbert has this front page article quoting not only several lawyers from Pennsylvania, but also some well-known law bloggers from across the Nation.
Posted at 03:15 PM by Howard Bashman

Mississippi sex toy litigation and Younger abstention: A reader has kindly sent along for posting a copy of the ruling of the U.S. District Court for the Southern District of Mississippi dismissing without prejudice a challenge to Mississippi's ban on sex toy sales. As I noted in a post from this morning, earlier this month the Fifth Circuit affirmed the district court's ruling.
Posted at 02:40 PM by Howard Bashman

"Why a Marriage Amendment is Necessary; Courts Continue to Redefine Marriage Despite Public Opposition": The Republican Policy Committee of the U.S. Senate issued this report today.
Posted at 02:22 PM by Howard Bashman

The Associated Press is reporting: Now available online are articles headlined "Congressman Loses Appeal in Phone Taping"; "Judge Weighs Jury Alternates in Ryan Trial"; and "Al-Qaida Plotters Dismiss Moussaoui's Role."
Posted at 02:14 PM by Howard Bashman

"Supreme Court Questions Military Trials": Gina Holland of The Associated Press provides this report.
Posted at 01:35 PM by Howard Bashman

Reader mail: A "How Appealing" reader who attended today's U.S. Supreme Court oral arguments emails:

I arrived at 7:10 a.m., 14 persons were ahead of me in the Maryland Avenue line for the members of the SCT bar. There were at least 100 people on the front plaza and sidewalk, many of whom had evidently camped out overnight, but as there is no grass left due to the construction projects, it must have been uncomfortable sitting on the sidewalk for so long.
By 9 a.m., there were well over 100 attorneys in the bar line, and it was obvious that the majority would have to listen to the oral arguments in the "overflow" room, where the sound is piped in through loudspeakers. In fact, only a little more than 20 members of the bar got in at 10 a.m., partly because 23 people were being sworn into the bar this morning, the majority were from the US Coast Guard. Not until 11:10 a.m. were another 10 or so members of the bar allowed to take the remaining seats that had been held vacant. The public area was jam-packed, except for the "VIP bench" which only had two men whom I did not recognize, probably Congressmen. That was a contrast with Hamdi/Padilla oral arguments, in which several Senators were on the VIP bench, along with then-Judge Chertoff, and (so I was later told), Chief Judge Mukasey of the SDNY, who first had the Padilla case.
Katyal's team, oddly, arrived with a hand cart containing three bankers' boxes, presumably full of documents and pleadings. We never found out, as they did not open the boxes, after all.
I won't say anything about the substance of the first oral argument, except it is obvious why ERISA is not part of the required law school curriculum! I did note that the justices asked very few questions of the petitioner's attorney, who was allowed to soliloquize at length, but had far more questions for the respondent's attorney, and the Assistant SG, who divided the argument time.
Some commotion right at 10:55 as the Attorney General arrives on the right, and a dozen senior members of the SCT press arrive on the left.
At 11, the Chief Justice leaves. There's a false alarm as Scalia stands up, and we wonder if he is also leaving, but in fact he is merely moving around the piles of briefs, and then sits back down. No other justice stands up during this break. We never did find out if he did any written response to the requests for recusal.
Scalia asks the first question of Katyal (who has an exceptionally clear voice & projects very well, he hardly needed a microphone), but otherwise the justices ask relative few questions of Katyal, who gets opportunity for long discourses. I found most interesting when Katyal put the military commissions and habeas in their historical context, for example noting that from General George Washington onwards, the military commissions were precisely circumscribed.
11:43, SG Clement starts, as before, he uses no notes or anything else on the podium, having so well memorized/rehearsed his pitch, but about a third of the way through, he did uncharacteristically have to retrieve one of the briefs from the counsel's table, for a few minutes. Overall, there were definitely far more questions of the SG, with several justices interrupting his responses in order to restate their questions. Kennedy's frustration with the SG was palpable and it didn't seem to me that the SG was able to satisfy Kennedy. Breyer, Souter, and even Stevens, also had to interrupt the SG to get him to answer their questions.
Scalia's key comment of the SG was that this was merely a "suspension" of the writ of habeas corpus, which he seemed to view as okay, so that everything else that followed was also okay. But that didn't seem to garner support from the rest of the bench.
Breyer's key questions to the SG were that the Authorization for Use of Military Force (Nov. 2001) did not authorize the Guantanamo commissions or the related detentions, removal from civil courts, etc. A number of the detainees were not actually captured on the battlefield, but were turned in by informants much later, and not necessarily charged with war crimes as such. Breyer emphasizes that these are "terribly difficult and important constitutional questions."
By 12:10 p.m., several of the justices on the north side of the bench were obviously glancing at the clock in the back of the room, but they had to wait another 25 minutes. In contrast to the ERISA case, where the justices kept the pages busy running back to get volumes of the US Reports or to pass notes, the pages had much less to do during the second argument, as the justices were more clearly focused on the oral argument in front of them.
12:28-12:31, Katyal did his rebuttal, with only 2 short questions from Stevens.
Hard to predict the outcome, but I doubt that there will be a 4-4 affirmance of the DC Circuit, as the SCT will assuredly want to have the last word. I predict that Kennedy will join Stevens-Breyer-Ginsburg-Souter for a 5-3 decision. Alito asked very few questions, Thomas none at all, and Scalia's questions were somewhat calmer than I've seen in the past.

I thank the reader very much for this thorough report.
Posted at 01:33 PM by Howard Bashman

"Some charges dropped as Enron prosecution rests; Government lawyers finish after eight weeks of testimony; defense lawyers for former executives to start their case Monday": CNNMoney.com provides this report.
Posted at 01:23 PM by Howard Bashman

"Padilla Judge Restricts Classified Info": The Associated Press provides a report that begins, "The federal judge overseeing the terrorism case against Jose Padilla imposed tight restrictions Tuesday on the handling of classified material to prevent disclosure of national security secrets when classified evidence is turned over to the defense."
Posted at 01:00 PM by Howard Bashman

"From the Court's Docket: Hamdan v. Rumsfeld." The Pocket Part, the online companion of The Yale Law Journal, has today posted online this article by Law Professor Neal Katyal.

Also available online today, a response from Ariel N. Lavinbuk entitled "Breaking with Custom" and a response from Stephen Townley entitled "Our Darwinian Law of War."
Posted at 12:28 PM by Howard Bashman

C-SPAN3 to broadcast audio of today's oral argument in Hamdan v. Rumsfeld: The oral argument is scheduled to conclude at 12:30 p.m. eastern time today, and the broadcast on C-SPAN3 should begin soon thereafter. You can view C-SPAN3 live, online using RealPlayer and Windows Media Player.
Posted at 11:35 AM by Howard Bashman

"Enron defense faces uphill battle; As the government wraps up their side of the case, Lay and Skilling's defense teams will have to work hard to bounce back": CNNMoney.com provides this report.

And Fortune magazine reports that "At Enron trial, defense can't rest; Lawyers for Ken Lay and Jeff Skilling have to take hard swings at government witnesses."
Posted at 11:30 AM by Howard Bashman

Eighth Circuit rejects Commerce Clause challenge to federal conviction for homemade child pornography: You can access today's ruling of the U.S. Court of Appeals for the Eighth Circuit at this link.
Posted at 11:28 AM by Howard Bashman

"Fans and foes weigh in on justice gesture": The Boston Herald today contains an article that begins, "While legal watchdogs wagged a disapproving finger at U.S. Supreme Court Justice Antonin Scalia for his off-color 'Sicilian' salute in Boston's cathedral, the Archdiocese of Boston said yesterday it won't publish a photo of the gesture in its newspaper The Pilot."
Posted at 11:20 AM by Howard Bashman

"Aaron Burr and Antonin Scalia, Acting Chief Justice": Orin Kerr has this post at "OrinKerr.com."
Posted at 11:14 AM by Howard Bashman

"Kennedy & O'Connor at Stanford Law School": "SCOTUSblog" offers this post.
Posted at 11:10 AM by Howard Bashman

In news from Chicago: The New York Times reports today that "Illinois Trial in Graft Case Is Thrown Into Ferment."

The Chicago Tribune today contains articles headlined "Judge ousts two jurors; Alternates eyed to avert Ryan mistrial"; "Spotlight can be uncomfortable for jurors"; and "Cautious approach guided editors." Transcript excerpts appear in an item headlined "Pallmeyer's statements about jurors." And columnist Eric Zorn has an op-ed entitled "Here's story behind story about 2 jurors."

And The Chicago Sun-Times contains an article headlined "2 jurors gone -- will trial go on?"
Posted at 10:54 AM by Howard Bashman

"eBay gets the BlackBerry treatment; Patent trolls are on stage again; But this time they're at the Supreme Court -- and the court's decision could change the law": Fortune magazine provides this report.
Posted at 10:40 AM by Howard Bashman

Who knew that this was a sex toy ruling? The Associated Press, in this report, reveals the subject matter of an otherwise apparently quite bland recent non-precedential ruling that the U.S. Court of Appeals for the Fifth Circuit issued earlier this month.
Posted at 10:30 AM by Howard Bashman

D.C. Circuit holds that in the Religious Freedom Restoration Act of 1993, Congress did not waive the federal government's sovereign immunity on claims for damages: You can access today's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 10:20 AM by Howard Bashman

Divided three-judge U.S. Court of Appeals for the D.C. Circuit panel affirms damages award in favor of plaintiff in Boehner v. McDermott: You can access today's ruling, in this dispute between two members of the U.S. House of Representatives, at this link. The majority opinion explains, "The issue on appeal is whether undisputed facts prove that Representative James A. McDermott 'unlawfully' obtained the tape recording of an illegally-intercepted conversation in which Representative Boehner participated." By affirming the award of damages in favor of Representative John A. Boehner (R-OH), the majority answers that question in the affirmative.
Posted at 10:12 AM by Howard Bashman

"Patient's pot plea meets skepticism; Judges' questions hint they won't protect medicinal use": Today in The Sacramento Bee, legal affairs writer Claire Cooper has an article that begins, "A frail medicinal pot user from Oakland took the federal government to court again Monday but left with little encouragement."
Posted at 10:01 AM by Howard Bashman

"Court to Commission": National Review Online has today posted an editorial that begins, "The Supreme Court hears arguments today in one of the most important cases since the beginning of the War on Terror."
Posted at 09:58 AM by Howard Bashman

"Panel sees walkout, protest": Yesterday's edition of The Yale Daily News contained an article that begins, "The invitation of two controversial speakers led to a walkout and a separate picket line protest at this year's Yale Law Journal symposium on executive power."
Posted at 09:55 AM by Howard Bashman

On today's broadcast of NPR's "Morning Edition": This morning's broadcast contained segments entitled "High Court Hears Challenge to Administration's Military Tribunals" (featuring Nina Totenberg) and "Moussaoui Testifies About Plan to Attack White House." RealPlayer is required to launch these audio segments.
Posted at 09:50 AM by Howard Bashman

"Curb on Access to News in Prison Gets Hearing": Linda Greenhouse has this article today in The New York Times.

And the newspaper also reports that "Court Rebuffs Times on Libel Suit Appeal."
Posted at 07:22 AM by Howard Bashman

"Prosecutors of 2 Ex-Enron Officials Could Rest Case Today": The New York Times contains this article today.

The Washington Post reports today that "Lay Faces a Second Trial, Alone; Judge Will Weigh Separate Federal Charges of Bank Fraud."

And The Houston Chronicle reports that "Skilling's broker tells of attempt to sell stock."
Posted at 07:20 AM by Howard Bashman

"Moussaoui says he was to attack White House; But Sept. 11 planner, in custody overseas, contradicts account": This article appears today in The Richmond Times-Dispatch.

In The New York Times, Neil A. Lewis reports that "Moussaoui Now Ties Himself to 9/11 Plot."

The Washington Post reports that "Moussaoui Says He Was to Fly 5th Plane; White House Attack Planned for 9/11, Terrorist Testifies." And Dana Milbank's "Washington Sketch" column is headlined "A Terrorist's Grand Delusion."

The Los Angeles Times reports that "Moussaoui Says He Was to Fly 5th Plane; But Al Qaeda plotter's testimony is at odds with a statement of 9/11 architect read in court."

In The Boston Globe, Charlie Savage reports that "Moussaoui now says White House was his attack target on Sept. 11."

And USA Today reports that "Claim of 9/11 role shakes up trial; Sudden reversal by Moussaoui."
Posted at 07:15 AM by Howard Bashman

"Scalia's Recusal Sought in Key Detainee Case; Retired Officers Say Justice's Impartiality Is in Question After Remarks on Combatants": Charles Lane has this article today in The Washington Post.

Today in The Los Angeles Times, David G. Savage reports that "High Court to Review Guantanamo Case; Challengers say military tribunals permit Bush to act as lawmaker, prosecutor, judge and jury; Congress has complicated the debate."

And in The Wall Street Journal, Jess Bravin has a front page article headlined "Court on Trial; As Justices Weigh Military Tribunals, A Guantanamo Tale; Torture in Morocco Is Alleged By Accused Accomplice In Old 'Dirty Bomb' Plot; A Constitutional Conundrum" (pass-through link).
Posted at 07:10 AM by Howard Bashman

In today's edition of The Los Angeles Times: An article reports that "Georgia Passes Bill to Fund Bible Courses in Public High Schools."

A front page article is headlined "80 Eyes on 2,400 People; If terrorists come to tiny Dillingham, Alaska, security cameras will be ready; But privacy concerns have residents up in arms."

In other news, "Blake's Lawyers Protest Verdict; They ask a judge to overturn the $30-million judgment against actor, citing juror misconduct."

The newspaper contains editorials entitled "Execute Moussaoui?" and "Fat and happy justice."

And Law Professor Jonathan Turley has an op-ed entitled "Our loquacious justices; U.S. Supreme Court judges should be seen and not heard, at least until the case is over."
Posted at 07:05 AM by Howard Bashman

The Washington Post is reporting: In today's newspaper, an article headlined "Heating Up With Hot-Button Issues" begins, "As if the debates over immigration and the Iraq war weren't contentious enough, Congress is about to embark on some really hot-button issues: flag burning, same-sex marriage and censuring the president."

An article is headlined "Muhammad Asks to Defend Himself."

And in other news, "Pr. George's Nudity Ban At Clubs Is Blocked."
Posted at 06:54 AM by Howard Bashman

"EBay at the Bar": This editorial appears today in The New York Times.
Posted at 06:44 AM by Howard Bashman

"Is Don'tDateHimGirl.Com Legal? The Site Where Women Post Photos and Information About Men They Claim Cheated on Them." FindLaw commentator Julie Hilden has this essay today.
Posted at 06:40 AM by Howard Bashman