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Friday, April 14, 2006 "Once Again, Scalia's the Talk of the Town; Justice Renders Frank Out-of-Court Opinions on 2000 Presidential Election, 'Sicilian' Gesture": Charles Lane will have this article Saturday in The Washington Post. Posted at 10:44 PM by Howard Bashman Available online from law.com: Tony Mauro reports that "Supreme Court to Consider the Fungibility of Lawyers." In other news, "11th Circuit: Court-Ordered Restitution Doesn't Violate 'Booker.'" And the brand new installment of my weekly "On Appeal" column is headlined "Should Congress Mandate Supreme Court TV? Will original understanding go high-definition?" "Suit against Notre Dame to proceed; Panel says it was dismissed too soon": This article appears today in The Chicago Tribune. My earlier coverage is here. Posted at 09:24 PM by Howard Bashman "Ten Reasons Why the Ninth Circuit Should be Split": Ninth Circuit Judge Diarmuid F. O'Scannlain last month delivered these remarks to Harvard Law School's Federalist Society Chapter. Posted at 08:57 PM by Howard Bashman "Judge rescinds order; 'shoebomber' won't testify in Moussaoui trial": CNN.com provides this report. And The Associated Press reports that "Reid Won't Testify at Moussaoui Trial." Today's order of the U.S. District Court for the Eastern District of Virginia can be viewed at this link. The order comes after Richard C. Reid's filing today of a motion, currently under seal, that presumably opposed the order to testify in the case. "Judicial Expansion": At The Wall Street Journal Online's "Washington Wire" blog, Jess Bravin has a post that begins, "If you think the Supreme Court is controlling more and more of the country, you’re right -- and the other branches of government are letting them get away with it." Posted at 08:45 PM by Howard Bashman "Appeals Court Slaps L.A. Over Arrests of Homeless": The Los Angeles Times provides a news update that begins, "Los Angeles' policy of arresting homeless people for sitting, lying or sleeping on public sidewalks as 'an unavoidable consequence of being human and homeless without shelter' violates the constitutional prohibition against cruel and punishment, a federal appeals court ruled today." My earlier coverage is here. Posted at 03:40 PM by Howard Bashman "The Legal Intelligencer Blog": Now available online here, and featuring a recent post that begins, "It's hard not to feel at least a little sympathy for former state Supreme Court Justice Russell Nigro, who was the first sitting justice to be booted from the court in a retention election." The Legal Intelligencer, of course, is a Philadelphia-based daily newspaper for lawyers that has published my monthly "Upon Further Review" appellate column since December 2000. Divided three-judge Ninth Circuit panel holds that "the Eighth Amendment prohibits the City from punishing involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles": Today's majority opinion begins, "Six homeless individuals, unable to obtain shelter on the night each was cited or arrested, filed this Eighth Amendment challenge to the enforcement of a City of Los Angeles ordinance that criminalizes sitting, lying, or sleeping on public streets and sidewalks at all times and in all places within Los Angeles's city limits." Circuit Judge Kim McLane Wardlaw wrote the majority opinion, and she was joined by a Nevada-based Senior U.S. District Judge sitting by designation. Circuit Judge Pamela Ann Rymer issued a dissenting opinion that begins: There is no question that homelessness is a serious problem and the plight of the homeless, a cause for serious concern. Yet this does not give us license to expand the narrow limits that, in a "rare type of case," the Cruel and Unusual Punishment Clause of the Eighth Amendment places on substantive criminal law. The majority sees it differently, concluding that the Eighth Amendment forbids the City of Los Angeles from enforcing an ordinance which makes it unlawful to sit, sleep, or lie on sidewalks. It gets there by cobbling together the views of dissenting and concurring justices, creating a circuit conflict on standing, and overlooking both Supreme Court precedent, and our own, that restrict the substantive component of the Eighth Amendment to crimes not involving an act. I disagree, and therefore dissent, for a number of reasons.Both the majority and dissenting opinions issued today in typescript format. Posted at 02:25 PM by Howard Bashman "Imagine, for example, a rule that all judges wear face powder, blush, mascara and lipstick while on the bench." So writes Circuit Judge Alex Kozinski, dissenting from today's en banc ruling of the U.S. Court of Appeals for the Ninth Circuit in Jespersen v. Harrah's Operating Co. By a vote of 7-4, today the en banc Ninth Circuit reaches the same result as the majority on the earlier three-judge panel in rejecting a Title VII sex stereotyping claim brought by a casino bartender who was fired because she refused to comply with the casino's grooming policy requiring female bartenders to wear make-up. The concluding paragraph of the majority opinion begins: We emphasize that we do not preclude, as a matter of law, a claim of sex-stereotyping on the basis of dress or appearance codes. Others may well be filed, and any bases for such claims refined as law in this area evolves. This record, however, is devoid of any basis for permitting this particular claim to go forward, as it is limited to the subjective reaction of a single employee, and there is no evidence of a stereotypical motivation on the part of the employer.My earlier coverage of the three-judge panel's ruling in this case can be accessed here. Posted at 02:15 PM by Howard Bashman Street preacher prevails on appeal in First Amendment challenge to the University of Arkansas at Fayetteville's regulation permitting an outside speaker to appear on campus only five times per semester: You can access today's ruling of the U.S. Court of Appeals for the Eighth Circuit at this link. Posted at 11:45 AM by Howard Bashman Too much law-blogging talent assembled in one room? Now that a possible conflict that could have prevented me from attending and participating in the conference "Bloggership: How Blogs Are Transforming Legal Scholarship" at the Berkman Center for Internet & Society of Harvard Law School has fallen by the wayside, I am really looking forward to being in Cambridge, Massachusetts two weeks from today. Just as a member of the President's cabinets skips the State of the Union address each year, Glenn Reynolds of "InstaPundit" fame will be participating via videoconference. "Hearing Delayed On Court Nominee": Today in The Hartford Courant, Lynne Tuohy has an article that begins, "The public hearing on the nomination of Associate Justice Peter T. Zarella to become chief justice, originally scheduled for Tuesday, has been canceled with no new date set." Posted at 10:44 AM by Howard Bashman "Moussaoui Unpredictable on the Stand at Sentencing Trial": This segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition." Posted at 10:35 AM by Howard Bashman "Judge says boy can read controversial poem": The Reno Gazette-Journal today contains an article that begins, "A 14-year-old Reno student can recite a poem containing the words 'hell' and 'damn' at the state high school poetry finals, a federal judge in Reno ruled Thursday." I have uploaded at this link a copy of yesterday's order of the U.S. District Court for the District of Nevada. Is the ruling under review factual or legal in nature? There are many appellate cases in which the standard of review dictates whether the decision on appeal will be affirmed or reversed. Generally speaking, where a trial judge has rendered a decision that is based on a dispute of fact, the standard of review is the more deferential "clearly erroneous" standard, while if the judge has resolved an issue of law, the standard of review is the non-deferential "plenary review" or "de novo" standard. Today, Sixth Circuit Judge John M. Rogers issued a concurring opinion in an appeal from a tax court ruling in which he observed: Whether an issue to be determined by the courts is one of fact or law is sometimes pretty simple. But often, especially when the issue can be stated in the form of "Does the item before us fit within the legal definition of x?", the factual-versus-legal nature of the issue can be perplexing. This is because the seemingly single question really has two different components: "What is the nature of this item?" and "What is the legal meaning of x?" In a case where there is total agreement between the parties as to the nature of the item, the question whether the item is an x is a legal one. In a case where there is total agreement between the parties as to the meaning of x, but a dispute as to the nature of the item, the issue of whether the item is an x is totally factual. Where there is some dispute on each of the two issues, the issue of whether the item is an x is a mixed question of law and fact.You can access the complete ruling at this link. Posted at 10:28 AM by Howard Bashman Electrocution humor: A divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit today issued a decision in which the majority writes, "On the first day of Filiaggi's trial, the stun belt used to restrain him as he was being transported to court misfired, resulting in what Filiaggi refers to as his 'electrocution.' Inasmuch as Filiaggi remains among the living, we will refer to the incident as an electrical shock." Posted at 10:15 AM by Howard Bashman "On the Stand, Former Enron Chief Has Angry Words for Prosecutors": The Washington Post contains this article today. The New York Times reports today that "Jury Hears Indignation of Skilling." The Los Angeles Times reports that "Skilling Is Defiant on Stand; Enron's ex-chief, ending his testimony, blames the '01 fall on the media and stock speculators; Cross-examination begins Monday." USA Today reports that "Skilling cross-examination up next." And in The Houston Chronicle, Mary Flood reports that "Skilling's demeanor takes a sober turn; Ex-CEO, once animated, blasts prosecutors' attempts to 'rewrite history.'" "Judicial Watch ex-head sues over 'power grab'": This article appears today in The Washington Times. Posted at 07:05 AM by Howard Bashman "Moussaoui, Testifying Again, Voices Glee Over Witnesses' Accounts of Sept. 11 Grief": Neil A. Lewis has this article today in The New York Times. The Washington Post reports today that "Moussaoui Tells Court 9/11's Toll Was Too Low." The Los Angeles Times reports that "Defiant Moussaoui Testifies; Denying that he is crazy, the convicted terrorist tells the jury at his sentencing trial: `I want to kill Americans.'" USA Today reports that "Moussaoui testifies he's 'glad' to have caused pain; Says he believes he'll be spared execution." And The Richmond Times-Dispatch reports that "Moussaoui: Sept. 11 was 'pleasure'; His life at stake, terror convict tells jury he still wants to kill Americans." "Should Graphic Testimony About 9/11 Have Been Heard By the Moussaoui Sentencing Jurors? The Continuing Controversy over the Use of Victim Impact Evidence." FindLaw commentator Edward Lazarus has this essay today. Posted at 06:40 AM by Howard Bashman  
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