How Appealing

Wednesday, May 31, 2006

"Head-scratching follows Garcetti ruling": Tony Mauro has this news analysis online at the First Amendment Center.
Posted at 09:10 PM by Howard Bashman


"Gay marriage looms as 'battle of our times'; As Senate prepares to argue marriage amendment, room for compromise between religious freedom and equal rights seems thin": This article will appear Thursday in The Christian Science Monitor.
Posted at 05:54 PM by Howard Bashman


"Globalizing the Legal Blogosphere": Duncan Hollis has this post at "Opinio Juris." Even more information about from where readers are accessing "How Appealing" can be obtained via this link.
Posted at 04:28 PM by Howard Bashman


"Little impact here, expert says": The Sacramento Bee today contains an article that begins, "The U.S. Supreme Court decision that places boundaries on freedom of speech rights for whistle-blowing government workers figures to have little or no impact on California state employees, a leading legal expert said Tuesday."
Posted at 03:04 PM by Howard Bashman


"Prosecutor says case put her in a 'different world'; For the past 2 years, she's been consumed -- by Lay, Skilling and everything Enron": This article appears today in The Houston Chronicle.
Posted at 03:02 PM by Howard Bashman


"The principal question presented by this appeal is whether a special condition of parole that prohibited the possession of 'pornographic material' would have given notice to a reasonable parolee who had been convicted of sexual crimes involving minors, or his parole officer, that the condition prohibited possession of the book Scum: True Homosexual Experiences, which contains sexually explicit pictures and lurid descriptions of sex between men and boys." So begins a 45-page opinion that the U.S. Court of Appeals for the Second Circuit issued today.
Posted at 02:50 PM by Howard Bashman


"U.S. judge is pressed for ruling on T-shirt; Poway student and district at odds over anti-gay slogan": Last Saturday, as I earlier noted here, The San Diego Union-Tribune published this article.

Today, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an order announcing some small amendments to the panel's original ruling in that case. My earlier coverage of that ruling appears here and here. Today's order notes that "Appellants' petition for rehearing en banc is still pending before this court."
Posted at 02:35 PM by Howard Bashman



"Gay Marriage Amendment: Case Closed; Senate Republicans trade federalism for demogoguery." Jonathan Rauch has this essay online today at Reason.

And today at National Review Online, Ruben Diaz has an essay entitled "Let Legislators Be Legislators: Marriage matters."
Posted at 02:30 PM by Howard Bashman



"Ala. Candidates Revive Judicial Debate": The Associated Press provides a report that begins, "In a debate with powerful echoes of the turbulent civil rights era, four Republicans running for Alabama's Supreme Court are making an argument legal scholars thought was settled in the 1800s: that state courts are not bound by U.S. Supreme Court precedents."

The Montgomery Advertiser reports today that "Supreme Court candidates disagree on philosophy."

And The Mobile Press-Register reported yesterday that "Challenger makes issue of abortion."
Posted at 02:14 PM by Howard Bashman



Appellate audio-visual selections: The Court of Appeals of New York, that State's highest court, has just begun hearing oral arguments in the consolidated same-sex marriage cases. You can view the oral arguments, scheduled to last for two hours, live online by clicking here (Windows Media format).

For those who are more interested in the inner workings of the U.S. Court of Appeals for the Federal Circuit, C-SPAN2 is currently broadcasting a discussion with the en banc court from the recent Federal Circuit Judicial Conference, moderated by attorney Carter G. Phillips, about the court's docket, work loads, rules and decision-making processes, etc. [Update: C-SPAN2's broadcast of this program has concluded.]
Posted at 02:05 PM by Howard Bashman



Over the dissent of three judges, the U.S. Court of Appeals for the Federal Circuit denies rehearing en banc of case in which three-judge panel had affirmed the dismissal of a patent infringement suit against maker of "The Club" vehicle anti-theft device: Today's order denying rehearing en banc, accompanied by a dissenting opinion, can be accessed here. The original three-judge panel today also issued an order denying panel rehearing but clarifying its earlier decision on the merits.
Posted at 11:50 AM by Howard Bashman


"Ireland plans swift new rape law after man freed": Reuters provides a report that begins, "Ireland plans to rush new laws on rape through parliament next week after a Supreme Court ruling left open a loophole that allowed a man convicted of raping a 12-year-old girl to be freed. The Supreme Court ruled last week that a 1935 law on statutory rape, under which any man who has sex with a girl under the age of 15 is automatically guilty of a crime, was unconstitutional."

The Associated Press reports that "Judge Overturns Underage Sex Conviction."

BBC News reports that "High Court frees 'child rapist'; The High Court in Dublin has ruled that a 41-year-old man, convicted of the statutory rape of a 12-year-old girl, should be released."

The Irish Times reports today that "Statutory rape law to be rushed through the Dail." And yesterday, the newspaper reported that "State opposes release of man jailed for raping 12-year-old."

The Irish Examiner reported last Saturday that "Underage sex ruling nightmare unfolds."

And The Sunday Times of London reported that "Same age sex to be legal at 14."

You can access last week's ruling of the Supreme Court of Ireland at this link.
Posted at 11:28 AM by Howard Bashman



The Times of London is reporting: Today's newspaper contains articles headlined "Privacy row puts flights to US at risk" and "Criticism of judges is 'an own goal for government.'"
Posted at 11:10 AM by Howard Bashman


"Signatures Handed In to Repeal Abortion Ban; South Dakota activists gather twice the number required to force a vote on a measure that outlawed the procedure even after incest or rape": This article appears today in The Los Angeles Times.

The Argus Leader of Sioux Falls, South Dakota today contains articles headlined "Abortion petitions in; two issues rejected; 38,000 signatures turned in to put ban before voters; Foes, advocates see opportunity"; "Petition challenge will be considered"; and "Tribal council outlaws abortion; President suspended for alleged donations."

And The Rapid City Journal reports that "Abortion-law challenge filed."
Posted at 11:00 AM by Howard Bashman



"Court says no to Hale's bid to leave jail early": The Chicago Sun-Times today contains an article that begins, "A federal appeals court Tuesday rejected white supremacist Matt Hale's bid for a break in his 40-year prison sentence, ruling there was ample evidence he ordered a hit on a Chicago federal judge."

And The Peoria Journal Star reports today that "Court upholds Hale decision; Former East Peorian's conviction for murder solicitation will stand."

My earlier coverage appears at this link.
Posted at 10:45 AM by Howard Bashman



"Librarians Shushed No More; Silenced Employees Finally Speak Out About Secretive FBI Letter On Internet Records": Lynne Tuohy has this article today in The Hartford Courant.

And The New York Times reports today that "Four Librarians Finally Break Silence in Records Case."
Posted at 07:30 AM by Howard Bashman



"Court Curbs the Speech of Public Employees; Justices rule that the 1st Amendment doesn't shield public-sector whistle-blowers": David G. Savage has this article today in The Los Angeles Times.

Today in USA Today, Joan Biskupic reports that "Whistle-blowers in public jobs dealt a blow by Supreme Court; First Amendment doesn't shield workers 'in their official duties.'"

The Washington Times reports that "Justices ease whistleblower protections."

And The New York Times contains an editorial entitled "Blow the Whistle, Loudly."
Posted at 07:28 AM by Howard Bashman



"Landing in an O.C. Court, This IOU Was Red All Over": This article appears today in The Los Angeles Times.
Posted at 07:22 AM by Howard Bashman


"Hurdle for U.S. in Getting Data on Passengers": The New York Times contains this article today.

And The Washington Post reports today that "U.S.-Europe Passenger Agreement Is Voided."

My earlier coverage appears at this link.
Posted at 07:20 AM by Howard Bashman



"Guilty verdict in sniper rampage; Malvo's testimony key for jurors who convict Muhammad of killing six in Md." This article appears today in The Baltimore Sun, along with articles headlined "Victims' relatives share pain of trial, joy of verdict" and "More trials hinge on Va. permission; No other states have begun process to get custody of Muhammad, Malvo."

The Washington Post reports today that "Muhammad Found Guilty on All Counts."

The New York Times reports that "Washington-Area Sniper Convicted of 6 More Killings."

And The Washington Times reports that "Muhammad found guilty of six Maryland murders."
Posted at 07:10 AM by Howard Bashman



"New Vehicle for Dissent Is a Fast Track to Prison; Bloggers Held Under Egypt's Emergency Laws": The Washington Post contains this article today.
Posted at 07:04 AM by Howard Bashman


"Specter, Leahy make final attempt at asbestos measure": This article appears today in The Hill.
Posted at 07:00 AM by Howard Bashman


"Supreme Court to Weigh Award in a Smoker's Death": Linda Greenhouse has this article today in The New York Times.

Today in The San Francisco Chronicle, Bob Egelko reports that "High court to clarify limits on punitive damages; Ruling in smoker's case to decide if awards are excessive."

In USA Today, Joan Biskupic reports that "Justices to review $79.5M award to smoker's widow."

The Oregonian reports that "High court will review tobacco case from Oregon; Justices will examine a Portland jury's $79.5 million punitive award in a janitor's cancer death."

And law.com's Tony Mauro reports that "Supreme Court Will Hear Case on High Punitive Damages; In opinion, justices narrow First Amendment protections for government whistleblowers."
Posted at 06:55 AM by Howard Bashman



"The Nine Lives of a Topless Bar: Complaints Hit a Wall of Law." This article appears today in The New York Times.
Posted at 06:50 AM by Howard Bashman


Tuesday, May 30, 2006

"Philip Morris Punitive Damages Get High Court Hearing": Greg Stohr of Bloomberg News provides this report.
Posted at 10:44 PM by Howard Bashman


"A Supreme Court Setback for Whistle-Blowers": Linda Greenhouse will have this article Wednesday in The New York Times.

And Wednesday in The Washington Post, Charles Lane will have articles headlined "High Court's Free-Speech Ruling Favors Government; Public Workers on Duty Not Protected" and "Justices To Rule on Punitive Damages."
Posted at 10:40 PM by Howard Bashman



"Court to speed decision on gay marriage ban": The Atlanta Journal-Constitution provides a news update that begins, "Georgia's highest court agreed Tuesday to speed up its review of a motion to reinstate the state's constitutional ban of gay marriage – a small win for supporters of the prohibition."
Posted at 09:10 PM by Howard Bashman


"Judging the Schiavo Case": Law Professor Samuel R. Bagenstos has this paper (abstract with link to article) online at SSRN. Thanks to Eugene Volokh for the pointer.
Posted at 08:55 PM by Howard Bashman


On this evening's broadcast of NPR's "All Things Considered": The broadcast contained audio segments entitled "High Court Tightens Rule on Workplace Speech" (featuring Nina Totenberg) and "Librarians Denounce Gag Order in Patriot Act Case." RealPlayer is required to launch these audio segments.
Posted at 08:50 PM by Howard Bashman


"Supreme Court limits protections for government whistleblowers": Stephen Henderson of Knight Ridder Newspapers provides this report.

And Wednesday in The Christian Science Monitor, Warren Richey will have an article headlined "From high court, warning to whistle-blowers; The justices find that public workers' criticisms aren't 'protected' speech."
Posted at 08:45 PM by Howard Bashman



"Supreme Court Rules Against Internal Whistleblowers": This audio segment (RealPlayer required) featuring Lyle Denniston of "SCOTUSblog" appeared on today's broadcast of the public radio program "Here & Now."
Posted at 04:45 PM by Howard Bashman


You and your bloody contract: The Associated Press provides a report headlined "Calif. Lawsuit Focuses on Blood Contract" that begins, "The lawsuit that Jinsoo Kim filed against Stephen Son is ordinary in every respect - except that it centers on a contract written in human blood."
Posted at 04:33 PM by Howard Bashman


"E-mail from Israeli Law School lecturer fuels debate": The Yale Daily News provides a report that begins, "When Israeli Supreme Court President Aharon Barak, a lecturer at Yale Law School, allegedly sent an e-mail to a 'dear friend' at the University with his explanation of one of the Israeli high court's most bitterly contested constitutional decisions to date, he did not expect the letter and the Law School to land on the front pages of Israeli newspapers."
Posted at 04:20 PM by Howard Bashman


"Supreme Court Will Hear Case on High Punitive Damages; Justices also narrowed First Amendment protections for government-employee whistle-blowers": law.com's Tony Mauro provides this news update.
Posted at 03:54 PM by Howard Bashman


On today's broadcast of NPR's "Day to Day": An audio segment entitled "Slate's Jurisprudence: Rights of Whistle-Blowers" features Dahlia Lithwick.

And an audio segment entitled "Hunger Strike Grows at Guantanamo Bay" features Carol Rosenberg, a reporter for The Miami Herald. Today she has an article in that newspaper headlined "Hunger strikes break out once again at Guantanamo; Guantanamo captives staged coordinated hunger strikes over Memorial Day weekend; commanders said they are seeking publicity ahead of the resumption of war-crimes trials in mid-June."

RealPlayer is required to launch these audio segments.
Posted at 03:50 PM by Howard Bashman



"Ga. Court to Expedite Gay Marriage Appeal": The Associated Press provides a report that begins, "Georgia's highest court said Tuesday it would expedite its review of a ruling that struck down the state's voter-approved ban on gay marriage."
Posted at 03:40 PM by Howard Bashman


"Interesting split Fifth Circuit ruling on 'execution impact' testimony": The "Sentencing Law and Policy" blog provides this post about a ruling that a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued today.
Posted at 03:20 PM by Howard Bashman


"Law school pals meet in Iraq; Graduates of Albany Law serve in war zone, one as a colonel, one as a trial lawyer": This article appears today in The Times Union of Albany, New York.
Posted at 02:40 PM by Howard Bashman


"Muhammad found guilty on six counts of murder; Sniper convicted on 6 counts of first-degree murder stemming from 2002 shooting spree": The Baltimore Sun provides this news update.

And The Associated Press reports that "Jury Finds Muhammad Guilty in Sniper Trial."
Posted at 02:33 PM by Howard Bashman



"Appeals court upholds white supremacist's conviction, sentence": The Associated Press provides a report that begins, "White supremacist Matthew Hale's conviction on charges of soliciting the murder of a federal judge and his 40-year sentence were upheld Tuesday by an appeals court that brushed aside his claim that he had repeatedly said he wanted nothing to do with the crime."
Posted at 01:35 PM by Howard Bashman


Seventh Circuit affirms judgment of conviction and sentence against Matthew Hale on charges of obstructing justice and soliciting a crime of violence in connection with his resistance to a judgment entered against his white supremacist organization by U.S. District Judge Joan Humphrey Lefkow and his involvement in a plot to have the judge murdered: You can access today's 29-page per curiam opinion at this link.
Posted at 12:15 PM by Howard Bashman


"Wiley Rutledge, Executive Detention, and Judicial Conscience at War": Law Professor R. Craig Green has today posted this article (abstract with link for download) online at SSRN.
Posted at 11:50 AM by Howard Bashman


Sharp thinks res judicata should have prevented Trademark Trial and Appeal Board from dismissing Sharp's objection to ThinkSharp, Inc.'s registration of the mark "ThinkSharp," but Federal Circuit disagrees: You can access today's ruling of the U.S. Court of Appeals for the Federal Circuit at this link.
Posted at 11:44 AM by Howard Bashman


"The Courthouse Mice": In the June 12, 2006 issue of The New Republic, Seventh Circuit Judge Richard A. Posner has a review (pass-through link) of, in his words, "two remarkably similar books about Supreme Court law clerks."

The books that are the subject of Judge Posner's review are: "Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk," by Todd C. Peppers; and "Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court," by Artemus Ward and David L. Weiden.

Update: At "SCOTUSblog," Marty Lederman has a post titled "Posner on SCOTUS Clerks and Transparency."
Posted at 10:25 AM by Howard Bashman



Today's U.S. Supreme Court Order List and opinion in an argued case: You can access today's Order List at this link.

At "SCOTUSblog," Lyle Denniston has posts titled "Public employee speech curbed" and "Court to hear tobacco appeal." The case in which review was granted today calls on the Justices to revisit the question of whether a particular award of punitive damages is unconstitutionally excessive.

The Court's only opinion in an argued case issued today came in Garcetti v. Ceballos, No. 04-473, a case originally argued on October 12, 2005 and then reargued on March 21, 2006. You can access the original oral argument transcript here; and the transcript of reargument here.

In early news coverage, Gina Holland of The Associated Press reports that "High Court Limits Whistleblower Lawsuits." And The AP also reports that "Supreme Court to Review Philip Morris Case" and "Supreme Court Passes on Yahoo Case."
Posted at 10:00 AM by Howard Bashman



"Jury to Begin Deliberations in Sniper Case": The Associated Press provides this report.
Posted at 09:42 AM by Howard Bashman


"EU court blocks data deal with US; The European Court of Justice has blocked an EU-US agreement that requires airlines to transfer passenger data to the US authorities": BBC News provides this report.

And The Associated Press reports that "EU Court Nixes Giving Air Data to U.S."

You can access today's ruling of the European Court of Justice at this link.
Posted at 09:40 AM by Howard Bashman



"4th Circuit: Who'll Replace Judge Luttig?" Law Professor Carl W. Tobias has this op-ed today in The Richmond Times-Dispatch.
Posted at 09:33 AM by Howard Bashman


"Recognizing Greatness in 3rd Circuit's Judge Becker": That is the title of the brand new installment of my "On Appeal" essay for law.com

The Philadelphia Inquirer's article from last Tuesday reporting on last Monday's funeral service for Third Circuit Judge Edward R. Becker stated that "the stretch of Chestnut Street between Fifth and Sixth Streets will now be named Edward R. Becker Way." One of Judge Becker's former law clerks last Friday emailed to me this photograph of the new street sign on display at 5th and Chestnut Streets in Philadelphia.

This blog's earlier coverage of the late, great Judge Becker can be accessed via this link.
Posted at 07:22 AM by Howard Bashman



In today's issue of USA Today: The newspaper contains articles headlined "Enron verdicts good for investors; Key message: Crooks will pay" and "Scrushy's lawyer says Lay strategy was wrong; 'You never, ever put the CEO on the witness stand.'"

And Law Professor Jonathan Turley has an op-ed entitled "Insanity's legal fall from grace: U.S. law used to have fairly standard protections for suspects who were deemed insane — until the shooting of President Reagan; Is there a constitutional basis for such a defense? The Supreme Court, it is hoped, will answer 'yes.'"
Posted at 07:15 AM by Howard Bashman



"Hawaiian bill pursues native rights; Long-stalled legislation stirs fears of secession, gambling, reparations": This article appeared yesterday in The Chicago Tribune.
Posted at 07:14 AM by Howard Bashman


Available online from The St. Petersburg Times: Yesterday's newspaper contained an article headlined "Courts overwhelmed by immigration cases; Fewer judges, hasty decisions and drawn-out appeals are creating an unmanageable backlog."

And in today's newspaper, columnist Howard Troxler has an op-ed entitled "Court review of campaign rhetoric: a slippery slope" discussing a ruling that the Supreme Court of Florida issued last week.
Posted at 07:10 AM by Howard Bashman



"Justices' Heaviest Lifting Is Ahead; As the Supreme Court term ends, weighty issues will test Roberts' consensus-finding skills": David G. Savage has this article today in The Los Angeles Times.
Posted at 07:02 AM by Howard Bashman


"Chief Justice Swears in Sullivan": CalLaw.com's "Legal Pad" blog provides a post that begins, "It may have taken Kathleen Sullivan two times to pass the California bar exam, but she sure got royal treatment for her successful repeat performance."
Posted at 06:54 AM by Howard Bashman


"Final Hearing Set Over Gay Rites in New York State": The New York Sun today contains an article that begins, "Gay couples who have been waging a legal battle for the right to marry in New York State for more than two years will get a final hearing at the state's highest court tomorrow."
Posted at 06:50 AM by Howard Bashman


"What Congress Should Consider Before Renewing the Voting Rights Act: A Chance to Preempt Supreme Court Invalidation, and Better Protect Minority Voting Rights." Richard L. Hasen has this essay online today at FindLaw.
Posted at 06:45 AM by Howard Bashman


Monday, May 29, 2006

Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained an audio segment entitled "Kansas School Board Defends Evolution Stance."

And today's broadcast of "Morning Edition" contained a segment entitled "When an Ex Moves, Do the Kids Go, Too?" reporting on the case captioned Mason v. Coleman, now pending before the Supreme Judicial Court of Massachusetts.

RealPlayer is required to launch these audio segments.
Posted at 10:00 PM by Howard Bashman



"Bible club lawsuit roils school": The Philadelphia Inquirer contains this article today.
Posted at 09:10 PM by Howard Bashman


"Roberts, Scalia and Alito expect great success from Schiltz as a federal judge": This article appeared yesterday in The Duluth News Tribune.
Posted at 09:05 PM by Howard Bashman


In today's issue of The National Law Journal: An article headlined "Judges warned about seminars; Departing judge notes expense-paid functions will sour Congress more" begins, "The chief judge of the 7th U.S. Circuit Court of Appeals, Joel Flaum, warned a conference of judges and lawyers last week that attending private expense-paid seminars, lax judicial discipline and flawed financial reporting by judges will only aggravate already testy relations with Congress." The article goes on to note that "Flaum issued the sober warning during his farewell address to the annual judicial conference. He steps down after six years as chief judge on Nov. 26 when he turns 70 years old. Flaum will be succeeded by Judge Frank Easterbrook, appointed to the court in 1985 by President Ronald Reagan."

In other news, an article reports that "Errant Web posting of data may revive suits; U.S. Air Force manual gives glimpse into mysteries of 'Area 51.'"

Law Professor Deborah W. Denno has an essay entitled "Lethal injection: Time to find alternatives."

And Law Professor Edward J. Imwinkelried has an essay entitled "'Daubert' Arguments."
Posted at 09:00 PM by Howard Bashman



"Enron Case A Grueling Trial for Its Lawyers; With No Key Evidence, Skill Was at a Premium": The Washington Post today contains this front page article.

And The Los Angeles Times reports today that "Enron Verdicts to Help Civil Claimants; But with so many investors and creditors seeking redress, payouts are likely to be meager."
Posted at 09:07 AM by Howard Bashman



"Ex-Homeless Man, Loser in Court, Feels Victorious": This article appears today in The New York Times. My earlier coverage appears here.
Posted at 09:05 AM by Howard Bashman


"Blawg Review #59": Available online here, at "Blawg Review."
Posted at 08:50 AM by Howard Bashman


Sunday, May 28, 2006

"Death penalty's drug cocktail rooted in Texas; Other states adopted method chosen with little scientific basis": This article appears today in The Austin American-Statesman (via "Sentencing Law and Policy").
Posted at 10:44 PM by Howard Bashman


In Enron-related coverage from today's edition of The Houston Chronicle: The newspaper contains articles headlined "Winners or losers, lawyers to benefit; Defense team, prosecutors could get career boosts" and "A local giant fell, but city stands tall; Most moved on, making corporate saga little more than a footnote."
Posted at 10:28 PM by Howard Bashman


In today's edition of The Chicago Tribune: The newspaper contains an Enron-related article headlined "'Ashamed' wrongdoer gets break; Deal limiting sentence of former finance chief key to prosecution, but some say it goes too far."

And Jack Fuller has an op-ed entitled "Commander in chief should give heed to chief justice."
Posted at 06:50 PM by Howard Bashman



Philadelphia Phillies 6, Milwaukee Brewers 2: On what was the first really hot day of the year, my son and I had the pleasure of attending this afternoon's Phillies victory. The team kept its winning streak for regularly scheduled Sunday home games alive against a team that it had heretofore failed to defeat in five attempts this season. You can access the box score at this link, and wraps here and here.
Posted at 06:15 PM by Howard Bashman


"Weed control: Research on the medicinal benefits of marijuana may depend on good gardening--and some say Uncle Sam, the country's only legal grower of the cannabis plant, isn't much of a green thumb." The Ideas section of today's issue of The Boston Globe contains this article.
Posted at 09:20 AM by Howard Bashman


"Tension Over FBI Raid Triggers Hints of Quitting; Top Justice Department officials intimate they'd resign rather than return files to the House": This article appears today in The Los Angeles Times.
Posted at 09:15 AM by Howard Bashman


"Cheney aide is screening legislation; Adviser seeks to protect Bush power": Charlie Savage has this article today in The Boston Globe.
Posted at 08:50 AM by Howard Bashman


Saturday, May 27, 2006

"Judge Admits Viewing Porn In Chambers": The Tampa Tribune contains this article today.

And The St. Petersburg Times reports today that "Deal means no return for judge; The JQC stops investigating allegations against Pinellas-Pasco Judge Downey; He must retire in January, permanently."
Posted at 04:58 PM by Howard Bashman



"Court asked to rush ruling on gay unions": This article appears today in The Atlanta Journal-Constitution.
Posted at 04:52 PM by Howard Bashman


"Falsely Accused Suspect Pursues Libel Case": The New York Times today contains an article that begins, "It has been 10 years since Richard Jewell was identified as a suspect in the Olympic Park bombing here and then quickly cleared. On Friday, his lawyer argued that he should be allowed to proceed with his libel case against The Atlanta Journal-Constitution, the first news organization to have described him as the focus of the investigation."
Posted at 04:50 PM by Howard Bashman


"'So Help Me God': The 'Ten Commandments Judge' battles to become Alabama's governor." Kyle Wingfield has this interview (free access) today in The Wall Street Journal.
Posted at 04:45 PM by Howard Bashman


"Tough Justice for Executives in Enron Era": This article appears today in The New York Times, along with articles headlined "Jurors Bonded as a Family From the Start of the Trial" and "Executives' Downfall: The 'Managing' of Numbers Turned Into Manipulating Them."

The Washington Post reports today that "Enron's Lay, Skilling Face Uphill Battle on Appeal."

The Los Angeles Times reports that "Enron Jury Saw Story Defense Missed."

And in The Houston Chronicle, Mary Flood has an article headlined "The more pennies lost, the more days in jail." The newspaper also contains articles headlined "A daily invocation gave the diverse group confidence and unity; Intense debates always led them back to overpowering evidence" and "Expert: Headlines need to be catchy -- and fair; Journalist thinks court verdict isn't a time for humor to trump substance."
Posted at 04:40 PM by Howard Bashman



"KOCE Sale Ruled Invalid; A court again questions the deal with a local foundation, instead of a Christian broadcaster; The future is unclear": The Los Angeles Times today contains this article reporting on an unpublished opinion that the California Court of Appeal for the Fourth Appellate District, Division Three, issued yesterday.
Posted at 01:23 PM by Howard Bashman


"Judge pays off debt for cutting park trees; Money funds full-time gardener, native plantings": The Seattle Post-Intelligencer today contains an article that begins, "Nearly four years after more than 120 cherry and maple trees were cut down in Colman Park to create a better lake view, a federal judge has fully paid off his debt to the city. Senior Judge Jerome Farris of the 9th U.S. Circuit Court of Appeals has paid a total of $618,000, city officials said Friday."

And The Seattle Times reports today that "Judge pays city $618,000 for cutting 120 trees."
Posted at 11:08 AM by Howard Bashman



"Bloggers can shield sources, court rules; In setback for Apple, Internet journalists are protected by law": This article appears today in The San Francisco Chronicle.

Today in The San Jose Mercury News, Howard Mintz reports that "Apple loses case against bloggers."

And The New York Times reports that "First Amendment Applies to Internet, Appeals Court Rules."

My earlier coverage appears here.
Posted at 10:55 AM by Howard Bashman



"Sex Assault Victim Can't Sue Defense Team, Judge Rules; Teen videotaped as she was assaulted in Corona del Mar alleged that the probe of her past went too far; Other portions of the lawsuit remain": The Los Angeles Times contains this article today.

And The Orange County Register reports today that "Haidl victim can't sue attacker's parents."
Posted at 10:54 AM by Howard Bashman



"Bizarre end to sniper defense; In 3 1/2 -hour closing, Muhammad argues that he was framed": This article appears today in The Baltimore Sun.

And The Washington Post today contains an article headlined "Conspiracy All Around, Sniper Insists; 3-Hour Closing Speech Mentions Lies, Bible."
Posted at 10:48 AM by Howard Bashman



"Time Ordered to Give Internal Documents to Libby": Charles Lane has this article today in The Washington Post.

And today in The New York Times, Neil A. Lewis reports that "Judge Orders Private Drafts Turned Over in Leak Case."

My earlier coverage appears at this link.
Posted at 10:44 AM by Howard Bashman



"Stern Gets Rights to Tapes In Settlement With CBS; Sirius Agrees To Pay $2 Million": Today's edition of The Washington Post contains this article.
Posted at 10:40 AM by Howard Bashman


"A Defiant Stance In Jefferson Probe; Justice Dept. Talked of Big Resignations If White House Agreed to Return Papers": This front page article appears today in The Washington Post.
Posted at 10:38 AM by Howard Bashman


"Drive for Vote on Abortion Accelerates": The New York Times today contains an article that begins, "Advocates of abortion rights were planning a final push this weekend for signatures to a petition that could send South Dakota's ban on abortion, which was intended as a direct legal challenge to the 1973 Supreme Court decision that established a constitutional right to abortion, to a statewide vote in November."

And The Argus Leader of Sioux Falls, South Dakota reports today that "Abortion clinic overture upsets tribal council; Reservation ban possible."
Posted at 10:35 AM by Howard Bashman



The San Diego Union-Tribune is reporting: Today's newspaper contains an article headlined "U.S. judge is pressed for ruling on T-shirt; Poway student and district at odds over anti-gay slogan" that begins, "A San Diego federal judge was asked yesterday to decide whether Poway High School administrators acted properly when they pulled a student from class for wearing an anti-gay slogan on his T-shirt two years ago."

And in other news, "Forum turns to talk of cross; 4 candidates support keeping it."
Posted at 10:25 AM by Howard Bashman



"Appeals Court Upholds Richardson Firing; University officials vindicated by ruling": This article appears today in The Morning News of Springdale, Arkansas.

The Arkansas Democrat-Gazette reports today that "Dismissing Richardson suit correct, judges rule."

And Rainer Sabin of The Northwest Arkansas Times has an essay entitled "Appeal decision closes ugly UA-Richardson episode."

My earlier coverage appears here.
Posted at 10:20 AM by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Afghan Lawmakers Nix Supreme Court Nominee"; "Armless Man Stopped for Speeding"; and "Scholars Ponder Same-Sex Marriage Issues."
Posted at 10:15 AM by Howard Bashman


"Names offered for 4th Circuit; Lawyers' groups list possible candidates for appeals court here": This article appears today in The Richmond Times-Dispatch.

And The Roanoke Times reports today that "S.W. Va. judges in running for seat; The state's two U.S. senators had requested recommendations to replace Michael Luttig."
Posted at 09:05 AM by Howard Bashman



Friday, May 26, 2006

Available online from law.com: Justin Scheck reports that "NSA Cases May Hinge on Issue of Standing."

And the brand new installment of my "On Appeal" column is headlined "Recognizing Greatness in 3rd Circuit's Judge Becker."

By the way, The Philadelphia Inquirer's article from Tuesday reporting on Monday's funeral service for Third Circuit Judge Edward R. Becker stated that "the stretch of Chestnut Street between Fifth and Sixth Streets will now be named Edward R. Becker Way." One of Judge Becker's former law clerks today emailed to me this photograph of the new street sign on display at 5th and Chestnut Streets in Philadelphia.
Posted at 11:50 PM by Howard Bashman



"Top Bush Aide at Justice Dept. Was Set to Quit": The New York Times on Saturday will contain an article that begins, "Attorney General Alberto R. Gonzales and senior officials and career prosecutors at the Justice Department told associates this week that they were prepared to quit if the White House directed them to relinquish evidence seized in a bitterly disputed search of a House member's office, government officials said Friday."
Posted at 11:35 PM by Howard Bashman


"Why Do We Care? -- Reflections on Dead Judges Voting." Steve Vladeck has this interesting post today at "PrawfsBlawg."
Posted at 08:10 PM by Howard Bashman


Access online the federal government's Brief for Petitioner filed on Monday in Gonzales v. Carhart, the case seeking to uphold the constitutionality of the federal Partial-Birth Abortion Ban Act of 2003: I have posted online a copy of the brief at this link.
Posted at 07:50 PM by Howard Bashman


"A Man Scorned: His private life was made shockingly public; So why does he want to go through it all again?" law.com's T.R. Goldman provides this report.
Posted at 07:44 PM by Howard Bashman


"Apple Loses Court Bid to Identify Sources": The Associated Press provides this report.

And Howard Mintz of The San Jose Mercury News provides an update headlined "Court protects bloggers, rebuffs Apple in leak case."

My earlier coverage appears here.
Posted at 07:33 PM by Howard Bashman



"Three Top Partners Flee Milberg": law.com's Justin Scheck provides this news update.
Posted at 07:32 PM by Howard Bashman


"President's Statement on Senate Confirmation of Brett Kavanaugh to the U.S. Court of Appeals": The White House issued this statement today.
Posted at 04:32 PM by Howard Bashman


"Judge: Reporters Must Give Libby Documents." The Associated Press provides this report on a ruling that the U.S. District Court for the District of Columbia issued today.
Posted at 03:30 PM by Howard Bashman


"Apple v. Does Decision Issued": At her "Bag and Baggage" blog, Denise Howell has this post focusing on today's ruling of the California Court of Appeal for the Sixth Appellate District.

The court's opinion begins, "Apple Computer, Inc., a manufacturer of computer hardware and software, brought this action alleging that persons unknown caused the wrongful publication on the World Wide Web of Apple's secret plans to release a device that would facilitate the creation of digital live sound recordings on Apple computers." The opinion continues:

In an effort to identify the source of the disclosures, Apple sought and obtained authority to issue civil subpoenas to the publishers of the Web sites where the information appeared and to the email service provider for one of the publishers. The publishers moved for a protective order to prevent any such discovery. The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret.
Today's opinion concludes that the trial court erred and should have granted the protective order precluding the discovery that Apple was seeking.
Posted at 03:20 PM by Howard Bashman


"This consolidated appeal presents the issue of whether photographs and videotapes of deputy sheriffs engaging in sexually explicit, off-duty conduct available for pay-per-view on the Internet is entitled to First Amendment protection." So begins an opinion that the U.S. Court of Appeals for the Eleventh Circuit issued today.
Posted at 03:10 PM by Howard Bashman


"Muhammad Rests His Defense in Sniper Trial": The Associated Press provides this report.
Posted at 02:58 PM by Howard Bashman


"Strong Booker work from the Sixth Circuit": At the "Sentencing Law and Policy" blog, Law Professor Doug Berman has this post about an interesting decision and concurrence that the Sixth Circuit issued today.
Posted at 11:54 AM by Howard Bashman


"Nolan Richardson, Jr., appeals the district court's dismissal, following a bench trial, of his race-discrimination and free-speech claims arising out of his termination as the men's head basketball coach for the University of Arkansas-Fayetteville Razorbacks." So begins a lengthy opinion that the U.S. Court of Appeals for the Eighth Circuit issued today. Today's ruling affirms the dismissal of those claims.

In early press coverage, The Associated Press reports that "Federal court denies Richardson's appeal."
Posted at 11:50 AM by Howard Bashman



"Senate Confirms Kavanaugh to Appeals Court": The Associated Press provides this report.
Posted at 11:12 AM by Howard Bashman


"Bar recommends 7 for appeals court": The Virginian-Pilot today contains a news brief that begins, "The Virginia Bar Association on Thursday recommended seven people, including two judges from South Hampton Roads, to fill the vacancy on the U.S. Fourth Circuit Court of Appeals." After identifying those seven people, the news brief notes that "The vacancy was created by the resignation of Judge J. Michael Luttig."
Posted at 11:08 AM by Howard Bashman


In today's edition of The Hartford Courant: An article headlined "Pro-Life License Plates Under Fire; DMV To Reconsider Sponsor's Eligibility" begins, "A swirling national First Amendment debate hit Connecticut Thursday as the Department of Motor Vehicles said it will stop issuing special 'Choose Life' license plates for The Children First Foundation - a New York-based pro-adoption group opposed to abortion - while it investigates, along with the attorney general, whether the foundation qualifies for the plates."

And Lynne Tuohy reports that "Judicial Access Panel Gets To Work."
Posted at 10:08 AM by Howard Bashman



"Judge Junkets Come Under Scrutiny": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition."
Posted at 10:05 AM by Howard Bashman


The U.S. Senate has just voted to confirm Brett M. Kavanaugh to the U.S. Court of Appeals for the D.C. Circuit: The vote in favor of confirmation was 57-36.

Update: Once posted online, the official roll call tally should appear at this link.
Posted at 09:24 AM by Howard Bashman



The U.S. Senate has just begun its up-or-down vote on the nomination of Brett M. Kavanaugh to serve on the U.S. Court of Appeals for the D.C. Circuit: Typically, these votes take about thirty minutes to complete. You can view the proceedings live, online via C-SPAN2 (RealPlayer required).
Posted at 08:58 AM by Howard Bashman


Available online from law.com: An article reports that "Awaiting High Court Review of Lethal Injection, Circuits Are Divided."

And in other news, "Legal Observers Divided on Odds of Successful Appeal in Enron Case; Jury finds Lay and Skilling guilty in fraud trial."
Posted at 08:50 AM by Howard Bashman



At 8:45 a.m. this morning, the U.S. Senate will begin post-cloture consideration of the nomination of Brett M. Kavanaugh to serve on the U.S. Court of Appeals for the D.C. Circuit: An up-or-down vote to confirm is expected today, although as Ed Whelan notes in this post at National Review Online's "Bench Memos" blog, "Senate rules would allow 30 hours of post-cloture debate." C-SPAN2 (RealPlayer required) will, as usual, provide live coverage of today's Senate proceedings.
Posted at 08:40 AM by Howard Bashman


"Two Enron Chiefs Are Convicted in Fraud and Conspiracy Trial": This article appears today in The New York Times, along with articles headlined "Verdict on an Era: Arrogance and Recklessness at Enron"; "Ignorance Claim Did Not Sway Enron Jury"; and "A Lingering Resentment and a Desire to Move Beyond Rueful Memories." The newspaper also contains an editorial entitled "And Justice for All." James P. Othmer has an op-ed entitled "Masters of the Universe, Unite!" And columnist Joe Nocera has an essay entitled "The Jurors Who Saw Through the Sideshow" (TimesSelect subscription required).

The Washington Post today contains front page articles headlined "Enron Leaders Found Guilty; Massive Fraud Pinned to Lay, Skilling" and "Defendants Sunk by Their Testimony." The newspaper also contains articles headlined "From the Ex-Employees: Revenge, Shock, Sadness"; "White-Collar Crime's New Milestone"; and "Once a Friend and Ally, Now a Distant Memory." An editorial is entitled "Not Just Bad Apples: The welcome convictions in the Enron trial do not make post-Enron accounting reform any less necessary." And columnist Steven Pearlstein has an essay entitled "Convictions Drive Home the Point Again."

The Los Angeles Times contains articles headlined "Enron's Top Executives Are Convicted of Fraud; Kenneth Lay and Jeffrey Skilling are also found guilty of conspiracy in a scandal that brought down the company and cost investors billions"; "Skilling's Lawyer Girds for an Appeal"; "Chances of Overturning Verdict Seen as Slim; The defense cites the case's venue and other court rulings as grounds for an appeal; But experts see no mistakes to warrant a new trial"; "Californians See 'Poetic Justice'; Still smarting from the 2000-01 energy crisis, residents and officials exult over the verdicts"; "Firm's Fall Led to Change in Conduct; Enron's collapse spurred a crackdown that increased pressure on corporate leadership to enhance and enforce ethics guidelines"; "'How Could They Not See It?'; Jurors say they became convinced that Lay and Skilling had to have known about the fraud that was occurring at the company they ran"; "'He Doesn't Just Win. He Destroys'; Co-lead prosecutor John Hueston is known by friends and foes as a tough opponent"; and "No Hometown Heroes; Enron once had great prestige in Houston; Residents, many of whom know victims of the malfeasance, now feel justice was served."

USA Today contains articles headlined "Lay, Skilling found guilty; Both men could spend the rest of their lives in prison"; "Jurors: Ex-Enron execs not credible; Prosecution's witnesses backed each other up"; "How jurors reached the decision"; "Wives, ex-wives faced trials of their own; Spouses were under a lot of pressure, analysts say"; and "Many who lost savings, jobs pleased; 'It restores our faith in the system,' says ex-employee."

In The Houston Chronicle, Mary Flood has articles headlined "Ex-Enron bosses closer to prison; Top execs convicted in scheme to hide firm's financial health; experts say they could get up to 25 years at Sept. 11 sentencing" and "Defense will focus on judge's decisions; Not moving case outside Houston, fast jury selection likely to be at issue." In addition, the newspaper contains articles headlined "Evidence buried the testimony of Lay, Skilling; Jurors said they started their task with open minds"; "Tension before the verdict, then sobs"; "White-collar status no ticket to 'Club Fed'; Once in prison, Lay and Skilling could be living with drug dealers and gang members"; "Convictions bring bittersweet relief; Some view the outcome as justice, while others saw a different side of Lay on the stand"; "Verdict met with range of reactions; Some in area are surprised; others say 'justice has been served'"; "Focus was on Lay's personality; Hueston came well-prepared with 'ice in his veins'"; "A federal strike at scandal in world of CEOs; Other cases were bigger, but Enron became a symbol, official says"; "Skilling's ex upset at being 'dragged into' case; She doesn't like how prosecutors presented her or her business"; "For the media, a chapter closes; Filmmakers, TV, print and online reporters reflect on the coverage"; and "You can't interpret rules, McNair says; Texans owner followed case against former business partners."
Posted at 07:04 AM by Howard Bashman



"Avoiding Clash, Senate Sends Judicial Nomination to Floor": The New York Times today contains an article that begins, "The Senate cleared the way on Thursday for a top aide to President Bush, Brett M. Kavanaugh, to be confirmed for the federal appeals court, avoiding a partisan showdown over a nomination that had been stalled for three years."
Posted at 06:55 AM by Howard Bashman


"Evolution stickers ruling tossed; Appeals panel orders trial judge to reopen Cobb case": The Atlanta Journal-Constitution today contains an article that begins, "The federal appeals court in Atlanta on Thursday declined to rule on the constitutionality of controversial Cobb County evolution disclaimers because the court said it did not have enough information to make the decision."
Posted at 06:50 AM by Howard Bashman


"Secrets Claims In NSA Case May Stop Suits": This article (free access) appears today in The Wall Street Journal.
Posted at 06:45 AM by Howard Bashman


"How the Federal Courts Can Clean Up America's Extraterritorial Prisons -- Including Its Secret Prisons: Learning from the Courts' Experience With Jim Crow Criminal Courts." Aziz Huq has this essay today online at FindLaw.
Posted at 06:40 AM by Howard Bashman


Thursday, May 25, 2006

"Senate Clears the Way for Kavanaugh Vote": The Associated Press provides this report.
Posted at 07:54 PM by Howard Bashman


The U.S. Senate has just begun to vote on whether to invoke cloture on the nomination of Brett M. Kavanaugh to serve on the U.S. Court of Appeals for the D.C. Circuit: The cloture request is expected to succeed this evening, allowing an up-or-down vote on the nomination to occur, perhaps as early as tomorrow.

Update: By a vote of 67-30, the Senate has invoked cloture.
Posted at 06:03 PM by Howard Bashman



Ludacris calls copyright infringement claim ludicrous: The Associated Press provides this report.

In somewhat related coverage, readers may recall my post from May 2005 titled "The rapper formerly known as 'C-Murder' faced a similar problem."
Posted at 05:28 PM by Howard Bashman



"Experts Says Cheney Can't Avoid Testifying": The Associated Press provides this report.
Posted at 05:20 PM by Howard Bashman


"Appeals court throws out Cobb 'evolution' ruling; More hearings to be held on controversial textbook stickers": Bill Rankin of The Atlanta Journal-Constitution provides this news update.
Posted at 05:18 PM by Howard Bashman


"Judge Becker's Last Criminal Law Opinions -- An Appreciation": Attorney Peter Goldberger has this interesting guest post at the "Third Circuit Blog."

Peter's post concludes, "When Judge Becker presided at oral argument, the red light meant nothing. Argument continued until all questions had been explored thoroughly. It always seemed like he had all the time in the world to try and 'get it right.' Alas, he did not have as much time as we would have wanted him to have, for our own sakes -- many more years of dispensing justice with an even hand, a keen intellect, and a kind heart."
Posted at 04:44 PM by Howard Bashman



"3 in Paintball Case Complain About Trials": The Associated Press provides this report on an appeal argued today before the U.S. Court of Appeals for the Fourth Circuit.
Posted at 04:30 PM by Howard Bashman


"Less Leeway for Religious Colleges": Inside Higher Ed provides a report that begins, "Ministers or other religious officials may sue a religious college for employment discrimination if the institution's reasons for taking the contested employment action are not grounded in 'faith, doctrine, or internal regulation' of the church, a divided federal appeals court ruled Wednesday."
Posted at 04:02 PM by Howard Bashman


"First-cut Enron sentencing questions (and links)": Law Professor Douglas A. Berman has this post at his "Sentencing Law and Policy" blog.
Posted at 03:58 PM by Howard Bashman


In Cobb County, Georgia evolution sticker case, the U.S. Court of Appeals for the Eleventh Circuit remands the case for new evidentiary proceedings and new findings based on the evidence then introduced into the record: Circuit Judge Ed Carnes wrote today's opinion on behalf of a unanimous three-judge panel.

As the introduction to today's opinion explains, "Whether we should reverse or affirm the judgment depends on the evidence that was before the district court, and we cannot tell from the record what that evidence was. Everyone agrees that some evidence presented to the district court has been omitted from the record on appeal, but the attorneys have not been able to identify what was omitted. The problems presented by a record containing significant evidentiary gaps are compounded because at least some key findings of the district court are not supported by the evidence that is contained in the record. We have concluded that the unfilled gaps in the record, coupled with the problematic nature of some of the district court's factfindings, prevent proper appellate review of the merits of the important constitutional issues raised in this case."

The stickers in question, affixed by the defendant school district and board of education inside the front cover of some science textbooks used in the public schools of the county, stated: "This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered."
Posted at 03:20 PM by Howard Bashman



"Enron Chiefs Guilty of Fraud and Conspiracy": The New York Times provides this news update.

The Washington Post provides a news update headlined "Jury Convicts Enron's Skilling and Lay."

The Los Angeles Times provides a news update headlined "Enron Executives Guilty on Most Counts."

The Houston Chronicle provides news updates headlined "Enron jurors find Lay, Skilling guilty"; "Enron jury finally speaks out"; and "Enron verdict scorecard, count by count."

Finally, Texas Lawyer provides a news update headlined "Enron's Lay and Skilling Found Guilty."
Posted at 02:25 PM by Howard Bashman



"Opponents of S.D. Abortion Ban Seek Vote": The Associated Press provides this report.
Posted at 02:20 PM by Howard Bashman


Additional thoughts on dead judges voting: On the ConLawProfs email list, both Marty Lederman and Law Professor Edward A. Hartnett have exchanged lengthy emails on this subject this morning. I have reproduced those emails here and here, respectively, at "How Appealing Extra." My earlier posts on this subject can be accessed here and here.

At the risk of overly simplifying matters, Marty notes in his email of this morning that 28 U.S.C. sec. 46 authorizes the "hearing and determination of cases and controversies by separate panels, each consisting of three judges." Marty further notes that the U.S. Supreme Court, in United States v. American-Foreign Steamship Corp., 363 U.S. 685 (1960), held that "A case or controversy is 'determined' when it is decided."

Marty goes on to reason, however, that an appeal is necessarily determined/decided in advance of the date on which an opinion is filed by the Clerk of a federal appellate court, especially in the Third Circuit, where the internal operating procedures require that any precedential opinion be circulated to all active judges before filing. Thus, Marty does not believe that a judge whose vote is dispositive in the outcome of an appeal must remain alive until the date on which the opinion and judgment of the appellate court are filed in order for the judge's vote to count.

I continue to disagree with Marty, and I note that in American-Foreign Steamship the U.S. Supreme Court held that "A case or controversy is 'determined' when it is decided." A large number of federal appellate courts state on the face of their precedential opinions that the date on which the opinion issued is the date on which the case was decided. (See, for example, recent opinions from the D.C. Circuit, the Second Circuit, the Fourth Circuit, the Seventh Circuit, and the Federal Circuit.) This persuasively indicates that the date on which a federal appellate court's decision is filed, and judgment is entered on the federal appellate court's docket, is synonymous with the date on which the case is decided. Moreover, as a matter of common sense, an appeal is not in fact "decided" until the court before which the appeal is pending has issued its decision.

For these reasons, I remain of the view that in order for a federal judge to provide the dispositive vote in support of a federal appellate court's judgment, he or she must be among the living on the date that the judgment is entered on the docket.

Also agreeing with me is Law Professor Stephen I. Vladeck, who emails:

Thanks for taking the blog mantle on such an interesting issue. Marty and I have been exchanging e-mails, and the only thing I'd add to what's already more than deftly covered in your posts so far is the role, if any, of 28 U.S.C. [sec.] 46, including 46(b), which requires that Courts of Appeals (save for the Federal Circuit) sit as three-judge panels, and 46(d), which allows two judges to serve as a quorum (back to the "Circuit Justice Roberts" flap...). Usually, when the two remaining judges agree, 46(d) becomes the basis on which they decide a case involving a deceased (or elevated) jurist, e.g., when Judge Fred Parker passed away last year. See United States v. Allied Stevedoring Co., 241 F.2d 925, 927 (2d Cir. 1957) (L. Hand, J.). There's no suggestion that the missing judge's vote "counts"; rather, all of the cases (except this one) are of the mind that the quorum provision is what saves the day.

If we assume that there comes a point after which missing judges can no longer vote, I still don't think there is a serious argument that the vote of a missing judge invalidates the decision, thanks to 46(d) (but see Nguyen v. United States, 539 U.S. 69 (2003), holding that the presence of a non-Article III judge voids the decisions of a Ninth Circuit panel notwithstanding the presence of a quorum). But it does seem to me that, since case law seems to be clear that it is the date of filing the opinion on which the opinion becomes "law," there's a serious question as to the precedential value of an opinion such as Petruska, which, in my view, should really be seen as an affirmance by an equally divided court

Thanks to all who have emailed to share their views on this interesting topic.
Posted at 01:00 PM by Howard Bashman


"Lay, Skilling Convicted in Enron Collapse": The Associated Press provides this report.

The Houston Chronicle provides a news update headlined "Enron jurors find Lay, Skilling guilty."

And CNNMoney.com reports that "Skilling and Lay guilty; Ex-CEO and founder convicted on fraud and conspiracy charges in Enron case."

Finally, CBS Radio News is reporting that the judge in Ken Lay's bench trial for bank fraud has also returned a guilty verdict.
Posted at 12:03 PM by Howard Bashman



"Verdict Is Reached in Enron Trial": The Associated Press reports here that "The jury in the fraud and conspiracy trial of Enron founder Kenneth Lay and Jeffrey Skilling has reached a verdict. It will be announced at noon EDT."
Posted at 11:23 AM by Howard Bashman


"Justices Restore Exit Exam; Diplomas for thousands of high school seniors are at risk after the state high court reinstates the test and asks an appeals court to decide the case": This article appears today in The Los Angeles Times.

The San Francisco Chronicle today contains articles headlined "School exit test reinstated by state high court; Foes to appeal ruling that could keep thousands from graduating" and "Some students feel left in the lurch."

The Sacramento Bee reports that "Exit exam back on for class of '06."

And The New York Times reports that "California Court Reinstates Statewide Exit Exam for High Schools."
Posted at 10:45 AM by Howard Bashman



"Ken Starr Has Something to Say": CalLaw.com's "Legal Pad" blog provides a post that begins, "The constitutional fight over marriage in California, though civil, has already exhibited a certain potential for absurdly crowded courtroom scenes."
Posted at 10:35 AM by Howard Bashman


"Senate May Bypass a Battle Over Bush's Federal Court Nominees": Bloomberg News provides a report that begins, "The U.S. Senate, on the brink of gridlock over judicial nominations a year ago, is finessing a showdown over President George W. Bush's most divisive choices for the federal bench."
Posted at 09:35 AM by Howard Bashman


"Counsel Says He May Use Cheney in Libby Trial": This article appears today in The New York Times.

The Washington Post today contains a front page article headlined "Libby Told Grand Jury Cheney Spoke of Plame; Vice President May Be Called as Witness."

And The Los Angeles Times reports that "Cheney Might Testify in Libby Case."
Posted at 07:28 AM by Howard Bashman



"Jury seeks 3 exhibit lists, full transcript; Latest in series of requests may signal thoughtful, slow deliberation": Today in The Houston Chronicle, Mary Flood has an article that begins, "The jury in the fraud and conspiracy trial of former Enron top executives Ken Lay and Jeff Skilling spent a fifth day in the deliberation room Wednesday and is due back today."

And USA Today reports today that "3 Enron cases await verdicts; Judge OKs $6.6B civil settlement."
Posted at 07:25 AM by Howard Bashman



"In Rapt Courtroom, A Struggle of Wills; Muhammad, Malvo Spar on the Stand": This front page article