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 appears today in The Washington Post, along with an article headlined "Muhammad's Ex-Wife Speaks Of Abuse, Fears; Sniper Sought Children, She Says." And columnist Marc Fisher has an essay entitled "The Chilling Alchemy Of a Sniper's Spell."

The Baltimore Sun, meanwhile, contains articles headlined "Malvo, sniper tangle again; Muhammad cross-examines ex-protege for 2nd day, erupts at prosecution objections"; "Muhammad, Malvo vie for upper hand; Defendant seems to seek dominance; his ex-protege resists"; and "Malvo story of Baltimore plot called 'alarming,' 'sobering.'"
Posted at 07:24 AM by Howard Bashman



"When jurors have a say: Some courts are letting them actively participate in trials." Columnist Steve Chapman has this op-ed today in The Chicago Tribune.
Posted at 07:18 AM by Howard Bashman


"Supreme Court: 9-0 is better than 5-4; Can the chief justice conquer the court's divide by aiming for unanimous rulings instead of swing-voting for the fences?" Law Professor Cass R. Sunstein has this op-ed today in The Los Angeles Times.
Posted at 07:14 AM by Howard Bashman


"A Law Firm Under Pressure: Case Reopens Debate on Whether to Indict a Company." This article appears today in The Washington Post.
Posted at 07:08 AM by Howard Bashman


"Firms Donated to Groups That Gave Judges Free Trips": The Washington Post today contains an article that begins, "Two organizations that have provided free trips to hundreds of federal judges received large contributions from tobacco, oil and other corporate interests, according to documents released yesterday."

Yesterday, Community Rights Counsel issued a press release titled "Tobacco and Oil Company Documents Undercut Groups' Claims to Media, Judges and Public About Corporate Funding for Judges' Junkets."
Posted at 07:05 AM by Howard Bashman



"Breach Was More of the Spirit, Not the Letter, of the Constitution": Today in The Washington Post, Charles Lane has a news analysis that begins, "The FBI raid on Rep. William Jefferson's congressional office was an aggressive tactic that broke a long-standing political custom. But while it might violate the spirit of the Constitution, it might not violate the letter of the document or subsequent rulings by the Supreme Court, legal analysts say."
Posted at 07:00 AM by Howard Bashman


"Interns? No Bloggers Need Apply." This article appears today in The New York Times.
Posted at 06:55 AM by Howard Bashman


"Is Chief Justice Roberts Correct that Unanimous Supreme Court Opinions Are Inherently Desirable? Why Split Decisions and Passionate Dissents Are Sometimes Better." Edward Lazarus today has this essay online at FindLaw.
Posted at 06:44 AM by Howard Bashman


Wednesday, May 24, 2006

On this evening's broadcast of NPR's "All Things Considered": The broadcast contained audio segments entitled "Malvo Faces Muhammad on Witness Stand" and "California High Court Reinstates School Exit Exam" (RealPlayer required).
Posted at 11:33 PM by Howard Bashman


"The Return of Martha Stewart, the Civil Case": This article will appear Thursday in The New York Times.
Posted at 11:28 PM by Howard Bashman


Reader mail on the subject of dead judges voting: Lots of interesting reader mail arrived on this topic after my post earlier today asked readers to send along their views.

Marty Lederman, writing to a ConLawProfs email list, explained the issue in the following manner:

The decision raises a host of interesting and important questions.

1. For a start, can a dead judge's vote count? (See Howard Bashman's query here.) If this were the Supreme Court, the answer would be "no," I think, because the Court's traditional practice has been that a Justice's vote is not counted unless the Justice is on the Court both at the time of oral argument (when "the case is submitted") and when the judgment is issued. That's why, for example, there are a handful of cases being re-argued this Term in which Justice O'Connor (presumably) was the fifth vote in the majority.

What I don't know is whether this is simply a matter of Supreme Court practice, or whether it is compelled by Article III or by statute. In today's Petruska decision, it seems fairly plain that the opinion was complete and merely going through the administrative process in the clerk's office when Judge Becker died last week -- and that therefore it's virtually inconceivable that he (the author of the opinion) would have changed his mind between Friday and today. But not impossible.

Does anyone have any thoughts on whether there is an Article III or a statutory obstacle to what the CTA3 did today? Possible minor wrinkles in that question: Does it matter that the court itself could grant en banc review -- or deny such review -- before the mandate is issued? Indeed, what if Judge Becker had died after the opinion was released but before the mandate issued? Would that change the answer to the question? If the issuance of the opinion is barred by the Constitution or by statute, could Judge Smith "cure" the problem by formally shifting his vote to "reverse," out of respect for Judge Becker and the panel on which they both sat -- even while continuing to publish his "dissent"?

In response to Marty's email, Law Professor Brian K. Landsberg drew the email list's attention to the en banc Fourth Circuit's ruling in Mayor and City Council of Baltimore v. Mathews, 571 F.2d 1273 (4th Cir. 1978). Earlier, in August of 1977, a seven-judge en banc Fourth Circuit had issued a decision in the case by a divided 4-3 vote. That earlier decision is reported at 562 F.2d 914 (4th Cir. 1977). A footnote to the decision explains that "Judge Craven died before the filing of the opinions which follow. Before his death, however, he concurred in the judgment and approved the language of Parts I and II of the majority opinion." Indeed, Fourth Circuit Judge James B. Craven, Jr. died in May 1977, more than three months before the en banc court's initial decision issued. He provided the crucial fourth vote in support of the majority.

In 1978, the en banc Fourth Circuit, considering the losing parties' petition for rehearing, wrote in a per curiam opinion:

Upon consideration of the appellees' petitions for rehearing and the response filed by the appellants, we conclude that Judge Craven's vote cannot be counted in the disposition of these appeals. Judge Craven died after approving Parts I and II of the opinion that Judge Winter wrote expressing the views of a majority of the court. His death occurred, however, before the dissenting and concurring opinions were written and before the court's decision was announced. Therefore, Judge Craven's approval of Judge Winter's draft cannot be tallied for the purpose of deciding the appeals. Cf. United States v. American-Foreign Steamship Corp., 363 U.S. 685 (1960).

Accordingly, we withdraw the opinions that were previously filed, affirm by an equally divided court the district court's orders granting preliminary injunctions, and remand the case to the district court for trial.

Regrettably, these cases have been delayed by our initial misapprehension of the effect of Judge Craven's death on their outcome. Consequently, we request the district court to try them and enter a final order as expeditiously as possible.

571 F.2d at 1276. The en banc Fourth Circuit's second ruling in this case provides strong support for my contention that a deceased judge cannot cast the deciding vote in support of a judgment entered on the docket after he or she has died.

Other readers disagreed with my position. A federal appellate law clerk whom I recently had the pleasure of meeting emailed:

I enjoyed your musings about the dilemma posed when a judge on a panel dies before the judgment is entered. But I think your "central reason" for advocating a rule that a judge must be alive when the clerk's office officially issues the opinion for his or her vote to count proves too much.

You contend that "judges in the majority, up until the date on which the judgment is filed, retain the right to change their minds." But really, judges retain that right even after the point you identify. When a losing party requests the panel to reconsider its decision, the judges have the option of withdrawing their previous opinion and issuing a new one---one that may or may not involve the same result and votes. And of course, the entire circuit might vote to vacate the decision and rehear it en banc. A judge on the original panel is free to change his or her vote at that time too. And suppose the Supreme Court takes the case, and remands it---the members of the panel have yet another opportunity to change their minds. I'm sure you can see that my point is that your reasoning would have to extend to these situations too, and I don't think that would lead to a desirable result.

I think the better rule is that things need to stand as they are at the time the judge passes. We can't know what a judge might have done had he or she lived longer, but we do know what he or she did do before dying. And, with the current rule in place, judges know the risks of the system, and can choose to delay voting if they retain some doubt about their vote.

On the other hand, I thought I'd share this messier hypothetical: what if the writing judge circulates an opinion, a judge concurs, then dies, and the third judge then circulates a dissent? That dissent might have persuaded the deceased judge to change his or her vote. I think that's a better example to support your position.

And reader Stephen Aslett has emailed:
I have to respectfully disagree with you when you write that a judge's death makes it "impossible to know with the necessary absolute certainty that the judgment in fact reflects the views of a majority on the panel as of the date of the judgment's issuance." In fact, just the opposite is true--we can be absolutely sure that the judgment reflects the opinion of a majority of the judges on the date of issuance because (a) the living judges did not change their minds before issuance and (b) the dispositive dead judge could not possibly have changed his mind before issuance because, well, he's dead. What I think you mean to say is that we can't know for sure whether the dead judge would have changed his mind had he lived. But I don't see why not having an answer to that question makes for an unacceptable result; it may not be fair that the dead judge did not have the extra time the others had to change his mind, but, after all, death is frequently unfair and inconvenient.

I also do not see why a voluntary resignation or suicide should change this result. The only difference in those situations is that the judge took it upon himself to get rid of the extra time he could have had to change his mind. Why should judges who want to reduce the time they have to reconsider a case be forbidden from doing so? Their only obligation as judges is to decide the case fairly and impartially--not to hold themselves out (or hold themselves alive) to possibly change their minds at the last minute.

Adopting a rule discounting the dispositive votes of judges who die (voluntarily or involuntarily) or who resign before a decision's issuance seems to me only to waste scarce judicial resources. The alternative rule-—always counting the dispositive votes of dead judges--would both (a) increase judicial efficiency and (b) force judges to be all the more deliberate in casting their initial vote. All of us live each day assuming the risk that death could prevent us from changing important decisions we've already made in our lives (especially if one dies in a car accident on the way to change one's will), and yet we and those whom our decisions affect are bound by them; I can't think of why judges should be any different.

Although the readers who have disagreed with my position on this issue have not caused me to change my mind, I do appreciate the thoughtfulness of their comments.
Posted at 11:15 PM by Howard Bashman


Available online from law.com: Tony Mauro has an article headlined "High Court Clerks: Still White, Still Male."

And in other news, "'Scarlet Letter' Mail Thief Gets Less Creative Sentence Second Time Around."
Posted at 10:38 PM by Howard Bashman



"Yes, Virginia, there is a closed primary": This post at "The Jaded JD" blog discusses a case that was argued yesterday before the same three-judge Fourth Circuit panel that I appeared in front of yesterday. Because my case was first on the calendar, allowing me to catch an early flight home, I did not stay to see the oral argument reported on in that blog post.
Posted at 10:33 PM by Howard Bashman


The Associated Press is reporting: Gina Holland has an article headlined "Judge Panel Considering Ban on Free Trips." This is a remedy that I have previously supported.

In other news, "Cheney May Be Called in CIA Leak Case."

And an article reports that "Affiliates Win in Dispute With EchoStar." My earlier coverage is here.
Posted at 10:25 PM by Howard Bashman



"Judge Drops Milberg Case, Citing Conflict": At CalLaw.com's "Legal Pad" blog, Justin Scheck has a post that begins, "The sizeable club of lawyers who want nothing to do with last week’s indictment of Milberg Weiss gained a new member Wednesday: L.A. federal Judge Dean Pregerson."
Posted at 08:45 PM by Howard Bashman


"Calif. Supreme Court Reinstates Exit Exam": David Kravets of The Associated Press provides a report that begins, "The California Supreme Court on Wednesday reinstated the state's high school exit exam as a graduation requirement, but it was not immediately clear whether the decision means tens of thousands of high school seniors who failed the test won't graduate this year."
Posted at 04:42 PM by Howard Bashman


"Hecht rapped for publicly backing Miers; Texas justice to appeal ruling, says his comments were protected by First Amendment": This article appears today in The Houston Chronicle.

The Austin American-Statesman reports today that "Texas Supreme Court justice admonished; Hecht overstepped with support of Harriet Miers last year, panel finds."

The Dallas Morning News reports that "Panel rebukes justice; Texas Supreme Court member says promoting Miers within his rights."

Texas Lawyer reports that "Texas Commission on Judicial Conduct Admonishes Justice Hecht."

You can access the text of the admonition at this link.
Posted at 04:00 PM by Howard Bashman



"Becker Revives Sex Discrimination Suit Filed by Minister Against School": Shannon P. Duffy of The Legal Intelligencer provides this news update (free access).
Posted at 03:45 PM by Howard Bashman


Judge Duncan authors Fourth Circuit's ruling in Duncan v. Duncan (In re Duncan): The U.S. Court of Appeals for the Fourth Circuit issued this decision today. Relatedly, I had the pleasure of meeting Circuit Judge Allyson K. Duncan yesterday in Richmond, Virginia.
Posted at 03:40 PM by Howard Bashman


En banc U.S. Court of Appeals for the First Circuit decides Narragansett Indian Tribe v. State of Rhode Island: By a vote of 4-2, the en banc court today has ruled that officers of the State, acting pursuant to an otherwise valid search warrant, can enter upon tribal lands and seize contraband (in this case, unstamped, untaxed cigarettes) owned by the Tribe and held by it for sale to the general public. You can access the decision at this link.
Posted at 03:05 PM by Howard Bashman


Further thoughts on the subject of "Dead Judges Voting": Following-up on my post from earlier today and my law.com essay on this subject from February 2006, assume that on Monday, June 4, 2007, the U.S. Supreme Court is scheduled to issue a 5-4 ruling holding that the federal government may, consistent with the U.S. Constitution, prohibit the medical procedure sometimes known as "partial-birth" abortion. This decision thereby results in the overruling of one of the Court's earlier cases reaching the opposite result by a similar 5-4 margin.

Assume further that on Sunday, June 3, 2007, one of the Justices in the five-Justice majority dies. May the Court on Monday, June 4th issue its 5-4 ruling, even though only eight Justices remain alive on the date of the decision's issuance, and of those eight the Court is evenly divided 4-4 on the outcome of the case? Would it make any difference if, instead of dying, one of the Justices in the five-Justice majority resigned from judicial service on Sunday, June 3d, so that the remaining eight Justices on the Court were divided 4-4 on the outcome of the case as of the date on which the decision was due to issue? If you would view it as permissible for the decision to issue if a Justice in the majority had died but not if the same Justice had resigned, is the distinction you draw based on the voluntary nature of a resignation? Would it matter if the Justice's death had occurred as the result of a voluntary act, such as suicide?

The central reason why I believe it is necessary for the majority on a divided appellate court's panel to remain among the living as of the date judgment is issued in the case is that the judges in the majority, up until the date on which the judgment is filed, retain the right to change their minds. While such a last-minute change of mind may occur infrequently, if ever, it remains a possibility. And thus, if an appellate court's judgment is filed on a date after the death of a judge whose vote in favor of the majority was dispositive of the outcome, it is impossible to know with the necessary absolute certainty that the judgment in fact reflects the views of a majority on the panel as of the date of the judgment's issuance.

It is for this reason, among others, that I wrote in my law.com column titled "Dead Judges Voting: When Does Life Tenure End?" that "[f]ederal appellate courts either should adopt a uniform practice that prevents dead judges from casting the dispositive vote in support of a court's judgment, or Congress should enact legislation providing that it is only the votes of federal judges who are alive when an appellate court's judgment is entered that are to be counted."

If you agree or disagree with my thoughts on this subject, please send me an email expressing your views. Also let me know if I may include your name if I select your email to be published here at "How Appealing."
Posted at 03:00 PM by Howard Bashman



"This case provides fresh meaning to James M. Cain's 'The Postman Always Rings Twice.' Anton Vacek was first struck by a Post Office truck, and then had his damage claim stamped out because the Post Office lost it in the mail." So begins a concurring opinion that Ninth Circuit Judge Sidney R. Thomas issued today.
Posted at 02:05 PM by Howard Bashman


A divided three-judge panel of the U.S. Court of Appeals for the Third Circuit examines the so-called "ministerial exception" to Title VII: The majority opinion issued today was written by Senior Circuit Judge Edward R. Becker, who died last Friday.

Circuit Judge D. Brooks Smith dissented in an opinion that concludes:

A church's choice regarding who will perform its spiritual functions is, by its very nature, a religious decision. By rejecting this basic premise, the majority effectively declines to adopt a ministerial exception, placing this Court at odds with every other federal court of appeals to consider the issue. Because, in my view, the majority's holding permits governmental interference with a religious institution's constitutionally-protected choices in violation of the First Amendment, I respectfully dissent.
This is the second time in recent months that the Third Circuit has issued an opinion in which a deceased judge has cast the deciding vote in support of that court's judgment. Unlike on the earlier occasion, today's opinion does not state that it was received for filing in the clerk's office before the authoring judge had passed away. My commentary on that earlier ruling -- titled "Dead Judges Voting: When Does Life Tenure End?" -- can be accessed here.
Posted at 12:54 PM by Howard Bashman


Hungary won't be thirsty: The Associated Press reports that "Court Allows Budweiser Sales in Hungary."

Bloomberg News reports that "Anheuser-Busch wins round in 'Bud' battle."

And Anheuser-Busch has issued a press release entitled "Three of a Kind: Court Deals Anheuser-Busch Three Wins in Hungary; Decisions Cancel Budejovicky Budvar's Appellation of Origin for Bud."
Posted at 12:20 PM by Howard Bashman



"At Muhammad Trial, Malvo Describes Sniper Life": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition."
Posted at 11:40 AM by Howard Bashman


"If [defendant's] missing his train invalidated the seizure of his luggage, drug couriers have discovered an infallible means of defeating law enforcement--buy your ticket at the last minute." Circuit Judge Richard A. Posner issued this interesting opinion today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit.
Posted at 11:35 AM by Howard Bashman


"When Speech Is Outlawed, Only Outlaws Speak: Should reporters who use classified information be treated like spies?" Jacob Sullum has this essay online today at Reason.
Posted at 11:24 AM by Howard Bashman


"Salon vs. Judge Boyle": Ed Whelan had this post yesterday at National Review Online's "Bench Memos" blog.
Posted at 11:22 AM by Howard Bashman


"Federal court upholds city ban on aerial ads": This article appears today in The Honolulu Advertiser. Additional coverage can be accessed via this earlier post.
Posted at 10:48 AM by Howard Bashman


The San Francisco Chronicle is reporting: Today's newspaper contains an article headlined "Vote goes against Wal-Mart; Council OKs using eminent domain to block retailer."

And in yesterday's newspaper, Bob Egelko had an article headlined "Champion of cyberspace faces its biggest case yet; Listening in? Electronic Frontier Foundation accuses AT&T of violating users' digital privacy."
Posted at 10:45 AM by Howard Bashman



"Judge Thyself -- and Soon": Andrew Cohen has this essay online today at washingtonpost.com. My recent commentary on this same subject appeared at law.com under the headline "Exaggerations Plague Debate Over Need for Judicial Inspector General."
Posted at 10:40 AM by Howard Bashman


"U.S. court upholds city ban on sky ads; An anti-abortion group intends to appeal the decision": This article appears today in The Honolulu Star-Bulletin. My earlier coverage appears here and here.
Posted at 09:05 AM by Howard Bashman


"State secrets privilege slams door on civil suits": The Chicago Tribune today contains an article that begins, "A suit filed this week in Chicago by author Studs Terkel and others accusing AT&T of invading its customers' privacy by sharing phone records with the National Security Agency could provide the next test of whether the Bush administration employs a once-rare tactic that essentially gives the government a blank check to kill civil suits."
Posted at 07:24 AM by Howard Bashman


"Malvo Describes Two-Step Plan; Phase Two Involved Blowing Up Schools, Children's Hospitals": The Washington Post today contains this front page article.

And The Baltimore Sun today contains articles headlined "City targeted, Malvo says; Police, youths were to be attacked in Baltimore" and "On stand, Malvo calmly recounts mayhem plot."
Posted at 07:20 AM by Howard Bashman



"Lay's Second Trial Ends; Verdict Now Up to Judge": This article appears today in The New York Times.

The Washington Post reports today that "Prosecution Wraps Up Lay Case; Enron Founder's Bank-Fraud Trial to Be Decided by Judge."

The Los Angeles Times contains an article headlined "Lay: Violations Lacked Intent; In his bank-fraud trial, Enron's founder says he wasn't familiar with a law; The jury is still out in the larger case."

The Houston Chronicle contains articles headlined "Lay 'calmly' waiting to learn fate; Fraud verdict in judge's hands; jury still out in criminal case" and "Jurors, judge in Enron trial set boundaries; Panel plans to take a break for the holiday weekend; foreman's identity kept under wraps."

And USA Today contains an article headlined "Defense: Lay didn't know about rule; Prosecution: He thought he could get away with it."
Posted at 07:15 AM by Howard Bashman



"Gonzales Defends Phone-Data Collection": The Washington Post today contains an article that begins, "Attorney General Alberto R. Gonzales said yesterday that the government can obtain domestic telephone records without court approval under a 1979 Supreme Court ruling that authorized the collection of business records."
Posted at 07:12 AM by Howard Bashman


"A Sudden Taste for the Law": This editorial appears today in The New York Times.
Posted at 07:10 AM by Howard Bashman


"S.D. plans to battle cross ruling": The San Diego Union Tribune today contains an article that begins, "The San Diego City Council truly was at a crossroads yesterday. And it chose to continue down a path that has already brought 17 years of litigation and heated public debate. The council voted 5-3 to appeal a federal judge's order to remove the Mount Soledad cross and continue a protracted fight that could cost the city $5,000 a day in fines."
Posted at 07:05 AM by Howard Bashman


"Running Against Gays: As an election approaches, can a vote to ban same-sex marriage be far behind?" This editorial appears today in The Washington Post.
Posted at 06:55 AM by Howard Bashman


Tuesday, May 23, 2006

Available online from law.com: An article reports that "For 9th Circuit, Less Means More."

And in other news, "11th Circuit Upholds Hijackers' Convictions but Remands Two for Resentencing; Federal appeals court vacates two men's sentences based on violations of the U.S. Supreme Court's 2005 'Booker' ruling."
Posted at 10:30 PM by Howard Bashman



Clements headlined last Saturday's broadcast of C-SPAN's "America & the Courts": The program's description states:
On this program we look at the life and career of Solicitor General Paul Clement. He took the oath of office on June 13, 2005. This is followed by Fifth Circuit Judge Edith Brown Clement. She gives the commencement address at Ave Maria Law School in Ann Arbor, Michigan.
You can view the program online, on demand, by clicking here (RealPlayer required).
Posted at 10:25 PM by Howard Bashman


"Term limits for judges? State measure moves closer to Nov. ballot; The plan affects appellate and Supreme Court jurists in Colorado; Backers need nearly 68,000 signatures." This article appears today in The Denver Post (via "Bench Conference").
Posted at 09:05 PM by Howard Bashman


"Moore men defiant, too": Sunday's edition of The Birmingham News contained an article that begins, "Roy Moore's mantra of defying federal courts is being touted by a slate of Alabama Supreme Court candidates led by former Moore aide and current Justice Tom Parker. The challengers are running on a platform that state jurists should not obey rulings by U.S. Supreme Court justices who don't interpret the Constitution the way they do."
Posted at 09:00 PM by Howard Bashman


Attention Ninth Circuit -- there's no "u" in Qantas: A long-time reader who is also a journalist reporting on legal issues emails: "As an Australian citizen, I note that the 9th Circuit Hawaii banners opinion misspells Qantas at page 14."

And in related coverage, The Honolulu Advertiser provides a news update headlined "Appeals court upholds aerial advertising ban."
Posted at 08:45 PM by Howard Bashman



"Nominee is held up by Graham": The Hill on Wednesday will contain an article that begins, "Sen. Lindsey Graham (R-S.C.), who sits on the Judiciary Committee and is close to Sen. John McCain (R-Ariz.), is blocking a nominee to the federal bench whom Graham’s friend opposes, Senate sources say. Conservatives and the American Bar Association consider the nominee, William 'Jim' Haynes, one of President Bush’s more qualified. But his nomination has languished in committee since the president tapped him for the 4th U.S. Circuit Court of Appeals in September 2003."
Posted at 08:23 PM by Howard Bashman


U.S. Court of Appeals for the Eleventh Circuit orders entry of nationwide permanent injunction against EchoStar's DISH Network, and in favor of broadcast television networks, prohibiting that satellite provider from transmitting network programming into homes that can adequately receive such programming through conventional rooftop antennas: You can access today's ruling at this link.
Posted at 05:54 PM by Howard Bashman


Second Circuit decides federal government's appeals from two federal district court rulings declaring unconstitutional the National Security Letters provision of the Patriot Act: You can access today's ruling at this link.
Posted at 05:45 PM by Howard Bashman


"Commission on Judicial Conduct Admonishes Justice Hecht": Texas Lawyer provides a news update (free access) that begins, "The State Commission on Judicial Conduct has issued a public admonition to Texas Supreme Court Justice Nathan Hecht regarding comments he made to the press last year in support of the nomination of White House Counsel Harriet Miers to the U.S. Supreme Court." You can access the text of the public admonition at this link.

And in other coverage, The Dallas Morning News provides an update headlined "Justice admonished for support of Miers."
Posted at 05:33 PM by Howard Bashman



"Slate's Jurisprudence: Prosecuting Journalists." This audio segment (RealPlayer required) featuring Dahlia Lithwick appeared on today's broadcast of NPR's "Day to Day."
Posted at 03:20 PM by Howard Bashman


"Secret Guarding: The new secrecy doctrine so secret you don't even know about it." Henry Lanman has this jurisprudence essay online at Slate.
Posted at 03:12 PM by Howard Bashman


Ninth Circuit upholds constitutionality of Honolulu's ban on aerial advertising: You can access today's ruling at this link.
Posted at 02:55 PM by Howard Bashman


"Michael G. New, formerly a medical specialist in the United States Army, was convicted by a court-martial of violating a lawful order to add United Nations insignia--a shoulder patch and a field cap--to his basic uniform." So begins an opinion that the U.S. Court of Appeals for the D.C. Circuit issued today. In today's opinion, the unanimous three-judge panel rejects the collateral attack on the military courts' analysis of the lawfulness of the uniform order.
Posted at 02:48 PM by Howard Bashman


Sixth Circuit holds that ERISA's anti-alienation provision prevents the State of Michigan from requiring that a company making pension plan payments to an incarcerated inmate send the payments to the inmates' institutional address, thereby allowing the warden to garnish up to 90% of each deposit to reimburse for the costs of caring for the inmate: You can access today's ruling of the U.S. Court of Appeals for the Sixth Circuit at this link.
Posted at 02:35 PM by Howard Bashman


"Malvo Says Muhammad Planned Bombings": The Associated Press provides this report.

The Washington Post provides a news update headlined "Malvo Describes Two-Step Plan; Phase Two Involved Blowing Up Schools, Children's Hospitals."

And The Baltimore Sun provides a news update headlined "Malvo takes stand against Muhammad; Younger sniper in '02 spree describes relationship with former role model, pair's plans 'to terrorize this nation'; Baltimore was to be next targeted area, he says."
Posted at 02:20 PM by Howard Bashman



"Yale President Richard Levin awards an honorary degree to former Supreme Court Justice Sandra Day O'Connor at Commencement Monday." The Yale Daily News provides this photograph.
Posted at 07:38 AM by Howard Bashman


Programming note: I am in Richmond, Virginia to present oral argument this morning before the U.S. Court of Appeals for the Fourth Circuit. Additional updates will appear later today.
Posted at 07:35 AM by Howard Bashman


"ABA rating of Wallace riles right": The Hill today contains an article that begins, "As they work to try to salvage his nomination, defenders of 5th U.S. Circuit Court of Appeals nominee Michael Wallace say a poor professional rating from the American Bar Association may have been driven by politics."
Posted at 07:33 AM by Howard Bashman


"Muhammad Questions Fairness of Maryland Trial; Malvo Is Expected to Testify for Prosecution Today About 2002 Shootings in Montgomery": This article appears today in The Washington Post.

And The Baltimore Sun reports today that "Case against Muhammad builds; Malvo expected to testify today."
Posted at 07:30 AM by Howard Bashman



"Deal With Wen Ho Lee May Make Press-Freedom Case Moot": Charles Lane has this article today in The Washington Post.
Posted at 07:24 AM by Howard Bashman


"Justices Back Police Intervention Without a Warrant": Linda Greenhouse has this article today in The New York Times.

Today in The Los Angeles Times, David G. Savage reports that "Justices Hold Door Open for Police Who See Fight Indoors; Officers may enter a home without a warrant or an invitation if they observe a brawl through a window, the high court rules unanimously."

The Salt Lake Tribune contains an article headlined "Justices say cops can enter, stop fight; Brigham City case: The role of police includes preventing violence."

And The Deseret Morning News reports that "Top court sides with Brigham City police; Justices rule officers were justified in entering home."
Posted at 07:20 AM by Howard Bashman



"New Orleans plans first criminal trials since Katrina; Defendants' rights violated, lawyers say": This front page article appears today in USA Today, along with an article headlined "City's public defender system troubled before Katrina; Activists, lawyers, feds see a chance to fix New Orleans' judicial problems."

And The New York Times reports today that "Judge Steps In for Poor Inmates Without Justice Since Hurricane."
Posted at 07:15 AM by Howard Bashman



"Judge's funeral draws dignitaries": The Philadelphia Inquirer today contains an article that begins, "Federal appeals court Judge Edward R. Becker was remembered yesterday as a giant in the legal community, a mentor to judges and justices, lawyers and law clerks, yet someone who maintained the common touch of an old-school Philadelphian who took the El to work."
Posted at 07:10 AM by Howard Bashman


Monday, May 22, 2006

"GOP to Push for Vote on Appeals Judge": The Associated Press provides a report that begins, "Despite Democratic opposition, Senate Republicans signaled Monday they will attempt to win confirmation by week's end for President Bush's nomination of White House aide Brett Kavanaugh as a federal appeals court judge."
Posted at 10:50 PM by Howard Bashman


"Bench warfare: Judge Terrence Boyle's former law clerks have launched a dubious defense of the embattled Bush nominee; Will their tactics backfire on Bill Frist and the White House?" Will Evans has this report, bearing tomorrow's date, online at Salon.com.
Posted at 10:40 PM by Howard Bashman


"Criticism Mounts that Judiciary Lacks Self Discipline; Congressman Wants An Inspector General To Ensure Unethical Judges Are Punished": Lawrence Hurley of The Daily Journal of California has this report today.
Posted at 10:35 PM by Howard Bashman


"At high court, no rush to resolve conflicts over lethal injection": Warren Richey will have this article Tuesday in The Christian Science Monitor.
Posted at 10:14 PM by Howard Bashman


The Associated Press is reporting: Now available online are articles headlined "Justices Deny Lethal Injection Challenge" and "Settlement May Be Near in Wen Ho Lee Case."
Posted at 09:58 PM by Howard Bashman


Greetings from Richmond, Virginia: Additional updates will appear momentarily.
Posted at 09:55 PM by Howard Bashman


Programming note: I will be arguing a case tomorrow before a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia. I will be traveling there this afternoon. Additional posts will appear here tonight, if the hotel internet connection functions properly.
Posted at 02:25 PM by Howard Bashman


"Is less more? To lawyers, unlike philosophers, the question may appear facetious, but the answer has real-life implications." The appellate review timing provision contained in the Class Action Fairness Act of 2005 is the subject of a dissent from the denial of rehearing en banc written by Circuit Judge Jay S. Bybee, in which a total of six judges joined. In the order denying rehearing en banc, which the U.S. Court of Appeals for the Ninth Circuit issued today, the original three-judge panel responds to Judge Bybee's dissent.

I examined this issue in the February 13, 2006 installment of my "On Appeal" column for law. com, headlined "Less Is More: When Courts Decide a Law Means the Opposite of What It Says." For the reasons explained in that column, in this argument I side with the dissenters from the denial of rehearing en banc.
Posted at 12:55 PM by Howard Bashman



"Teen Fights S.C. School's Confederate Ban": The Associated Press provides this report.
Posted at 12:38 PM by Howard Bashman


Available online from National Public Radio: Today's broadcast of "Morning Edition" contained an audio segment entitled "Roberts' Court Produces more Unanimous Decisions" featuring Nina Totenberg.

And yesterday's broadcast of "Weekend Edition Sunday" contained audio segments entitled "Attorney-Client Privilege Under Attack?" and "Netflix Manuever Draws Legal Fight."

RealPlayer is required to launch these audio segments.
Posted at 11:45 AM by Howard Bashman



"Courts & The Law: The Bush Bench." Columnist Kenneth Jost has this essay in today's issue of CQ Weekly.
Posted at 11:33 AM by Howard Bashman


"Judge Edward R. Becker, R.I.P." This post appears today at the blog "Underneath Their Robes."
Posted at 10:20 AM by Howard Bashman


Today's U.S. Supreme Court Order List and opinion in an argued case: At "SCOTUSblog," Lyle Denniston has a posts titled "Decisions: Police may enter home" and "Orders: No new cases granted."

Today's only decision in an argued case came in Brigham City, Utah v. Stuart, No. 05-502. Chief Justice John G. Roberts, Jr. delivered the opinion for a unanimous Court. You can access the syllabus here; the Chief Justice's opinion here; the concurring opinion of Justice John Paul Stevens here; and the oral argument transcript here. Additional background on the case is available at this link.

You can access today's Order List at this link. The Court today did not grant review in any new cases but did call for the views of the Solicitor General in one case.

In early news coverage, Gina Holland of The Associated Press reports that "Supreme Court Backs Police in Emergencies." The AP also reports that "Court Won't Hear Murderer-Lawyer Case"; "Justices Avoid Gay Couple's Custody Fight"; and "Supreme Court Rejects N.Y. Murder Appeal."
Posted at 10:04 AM by Howard Bashman



"Scalia-Alito Is the New O'Connor-Ginsburg": Today's brand new installment of my "On Appeal" column for law.com can be accessed at this link.
Posted at 09:28 AM by Howard Bashman


In this week's issue of The National Law Journal: The newspaper contains an article headlined "Lethal injection stays not consistent in U.S.; Awaiting high court review, courts are divided and attorneys unnerved."

Mark I. Levy has an essay entitled "Appellate Overload."

And Law Professor Bennett L. Gershman has an essay entitled "Unpublished Opinions: At last, a citability rule."
Posted at 09:25 AM by Howard Bashman



"Gay-marriage ban a no-win deal for Bush": Today in The Philadelphia Inquirer, political analyst Dick Polman has this article.
Posted at 09:20 AM by Howard Bashman


"A test that means everything while measuring nothing; What does passing the state bar have to do with being a good lawyer?" Yesterday in The San Francisco Chronicle, Hans Allhoff had an op-ed that begins, "It's like the story about Michael Jordan not making his high school basketball team, only in reverse. Kathleen Sullivan, the former Stanford Law School dean and constitutional lawyer extraordinaire, recently failed the California Bar Exam."

The op-ed was likely finalized before information became available this weekend, as I noted in this post yesterday, that "Kathleen M. Sullivan has passed the February 2006 California bar exam."
Posted at 07:20 AM by Howard Bashman



"Act before midnight Nov. 7! Desperate senators peddle the Constitution to the lowest common denominator." This editorial appeared yesterday in The Los Angeles Times.

And yesterday in The Chicago Tribune, columnist Steve Chapman had an op-ed entitled "Unconservative constitutional amendments."
Posted at 07:14 AM by Howard Bashman



USA Today is reporting: Today's newspaper contains articles headlined "Government keeps info from defense lawyers in terror cases; Lawyers ask whether clients monitored without warrants" and "Charges could drive Milberg Weiss clients away; Bribery, fraud accusations may have big impact."
Posted at 07:10 AM by Howard Bashman


"Abuse Trial Revives Old Questions; Involvement of Superior Officers at Abu Ghraib to Be Raised": This article appears today in The Washington Post.
Posted at 07:08 AM by Howard Bashman


"Jury deliberations often yield surprises; It's not easy reading the minds of jurors, whose actions run from crafty to cryptic": The Houston Chronicle today contains this front page article reporting on the Enron trial.
Posted at 07:04 AM by Howard Bashman


"In Malvo's Testimony, Hope for Full Story; Witness May Prove Hard to Control": The Washington Post contains this article today.

And The Baltimore Sun reports today that "Malvo to face former mentor; Legal experts expect him to make critical links for sniper jury."
Posted at 07:02 AM by Howard Bashman



"Gitmo, get gone: Running out of excuses for not removing a national blight." This editorial appears today in The Los Angeles Times.
Posted at 07:00 AM by Howard Bashman


"A Blind Eye on Judges": The New York Times today contains this letter to the editor from Law Professor Monroe H. Freedman.
Posted at 06:50 AM by Howard Bashman


"Gonzales Says Prosecutions of Journalists Are Possible": Adam Liptak has this article today in The New York Times.

And The Washington Post reports today that "Prosecution of Journalists Is Possible in NSA Leaks."
Posted at 06:45 AM by Howard Bashman



"Settlement could leave issue of reporter ‘privilege' unsettled": Joan Biskupic has this article today in USA Today.
Posted at 06:40 AM by Howard Bashman


"The Indictment of the Milberg Weiss Law Firm and America's Love/Hate Relationship with Class Action Litigation": Michael C. Dorf has this essay today at FindLaw.
Posted at 06:35 AM by Howard Bashman


Blawg Review #58: Available here, at "Tech Law Advisor."
Posted at 06:30 AM by Howard Bashman


Sunday, May 21, 2006

The death notice for Senior Third Circuit Judge Edward R. Becker can be viewed online at this link: The notice states that:
Relatives and friends are invited to Funeral Services Monday, 1 P.M. precisely, at Reform Congregation Keneseth Israel, Old York Road and Township Line, Elkins Park PA. Family will receive relatives and friends at the Synagogue from 11 A.M. to 1 P.M. prior to Service. Interment Shalom Memorial Park. Following Interment, family and friends will return to Reform Congregation Keneseth Israel. Shiva will be observed at his late residence Tuesday and Wednesday commencing at 6 P.M. Contributions in his memory may be made to Fox Chase Cancer Center, 333 Cottman Ave., Phila. PA 19111.
The online death notice also provides access to a Legacy.com Guest Book. Directions to the funeral service can be accessed here.
Posted at 10:11 PM by Howard Bashman


Kathleen M. Sullivan has passed the February 2006 California bar exam: Her name appears on this alphabetized list. We shall see whether this good news receives the same level of coverage as the result of her previous effort to pass the California bar exam. Results of the February 2006 California bar exam were mailed to test takers on Friday.
Posted at 08:35 PM by Howard Bashman


The Associated Press is reporting: Hope Yen has an article headlined "Roberts Seeks Greater Consensus on Court." If you have QuickTime player installed, you can view online the remarks that Chief Justice John G. Roberts, Jr. delivered today at Georgetown University Law Center by clicking here. The Chief Justice's remarks begin just ahead of the 19 minute mark of the online video.

And in other news, "Attorney Gen.: Reporters Can Be Prosecuted."
Posted at 06:30 PM by Howard Bashman



Philadelphia Phillies 10, Boston Red Sox 5: Not even the Boston Red Sox could get in the way of the regularly scheduled Sunday home game win streak that the Phillies are compiling. Throughout this afternoon's sun, rain, and then sun again, my son and I saw Bobby Abreu end up a double shy of the cycle with a single, triple, home run, and two walks. You can access the box score at this link, while wraps are available here and here.
Posted at 06:18 PM by Howard Bashman


"The Three Faces of Ken Lay": Mimi Swartz has this op-ed today in The New York Times.
Posted at 09:10 AM by Howard Bashman


"1982 ruling a catalyst in immigration debate; Court opened doors for students but put a strain on school districts": This article appears today in The Houston Chronicle.
Posted at 09:04 AM by Howard Bashman


"Broadway Beckons a Booming Voice": The New York Times today contains an article that begins, "If things go according to plan, 'Thurgood,' the one-man play about Thurgood Marshall, the United States Supreme Court justice, will have its last performance at the Westport Country Playhouse this afternoon."
Posted at 08:55 AM by Howard Bashman


In yesterday's edition of The Roanoke Times: The newspaper contained articles headlined "Virginians in the mix to fill judgeship; Four names have been floated as possible candidates to replace Judge Michael Luttig on the 4th Circuit Court of Appeals" and "Fiery brief irks high court; The Virginia Supreme Court has called in Roanoke lawyer Stan Barnhill to discuss a filing that sharply criticized the court for a ruling against one of his clients."
Posted at 08:45 AM by Howard Bashman


Saturday, May 20, 2006

Available online from law.com: An article reports that "Calif. Supreme Court Slams Former Prosecutor's Credibility."

In other news, "Fired From Case, Milberg Weiss Feels First Aftershock From Indictment."

An article reports that "Sidley Could Face $100M Liability in Opt-Outs; With many tax case plaintiffs refusing to settle, firm's share of liability costs could hit nine-figure mark, says attorney."

Eric Wesenberg and Peter O'Rourke have an essay entitled "The Toll on the Troll: The Implications of 'eBay v. MercExchange.'"

And the brand new installment of my "On Appeal" column is headlined "Scalia-Alito Is the New O'Connor-Ginsburg."
Posted at 03:20 PM by Howard Bashman



"Employers wiping out Net surfing on the job": The Chicago Tribune contains this article today.
Posted at 03:08 PM by Howard Bashman


"Sniper Slayings Tied to Rifle Found in Muhammad's Car": This article appears today in The Washington Post.

And The Baltimore Sun reports today that "Rifle linked to sniper suspect; Ballistics expert tell jury recovered Bushmaster was involved in 8 killings."
Posted at 02:55 PM by Howard Bashman



"Same-sex adoption law struck; Oklahoma told to honor other states' decisions": The Oklahoman today contains an article that begins, "A federal judge Friday swept away a Norman mother's fears that the state of Oklahoma could deny her parental rights because she is gay. U.S. District Judge Robin Cauthron ruled unconstitutional a state law banning recognition of out-of-state adoptions by same-sex parents."

And The Associated Press reports that "Judge Strikes Down Okla. Gay Adoption Law."

Lambda Legal Defense and Education Fund yesterday issued a press release entitled "Federal Court Strikes Down Oklahoma's Extreme Antigay Adoption Law in Lawsuit Brought by Lambda Legal."

I have uploaded a copy of yesterday's ruling of the U.S. District Court for the Western District of Oklahoma at this link.
Posted at 02:40 PM by Howard Bashman



"Prison-Based Gerrymandering": This editorial appears today in The New York Times.
Posted at 02:32 PM by Howard Bashman


"Big Fish: It's time to put the al-Qaida ringleaders on trial." Dahlia Lithwick has this jurisprudence essay online at Slate.
Posted at 02:25 PM by Howard Bashman


"Edward R. Becker, 73, Judge on Federal Court of Appeals, Dies": This obituary appears today in The New York Times.

The Philadelphia Inquirer today contains an obituary headlined "U.S. Judge Edward R. Becker dies; The Phila.-based jurist was one of the most influential appellate judges, renowned for his learning and modesty."

And The Philadelphia Daily News contains an obituary headlined "City loses one of its 'greatest'; Judge Edward Becker, named to federal bench at age 37, dies."
Posted at 08:25 AM by Howard Bashman



Friday, May 19, 2006

"Federal appeals judge Edward R. Becker dies at 73": The Associated Press provides this obituary.
Posted at 08:08 PM by Howard Bashman


"Judge Edward R. Becker, 3rd Circuit Giant, Dead at 73": Shannon P. Duffy and Asher Hawkins of The Legal Intelligencer provide this news update (free access).
Posted at 05:45 PM by Howard Bashman


Second Circuit reverses entry of summary judgment dismissing federal civil rights lawsuit which asserted that a high school student's Fourth Amendment rights were violated when she was strip searched by school officials on suspicion that she possessed marijuana: You can access today's ruling at this link.
Posted at 04:55 PM by Howard Bashman


Senior Third Circuit Judge Edward R. Becker has died: He was a giant of the law and a wonderful man. He will be missed greatly by me and countless others.

In May 2003, after Judge Becker took senior status, I wrote toward the end of a column that you can access here: "Just over one week ago, Edward R. Becker's tenure as Chief Judge of the U.S. Court of Appeals for the Third Circuit came to an end. It is questionable whether enough superlatives exist to capture the extraordinary service that he provided to advance the goal of justice during his tenure as Chief Judge." My condolences go out to his family, his current and former law clerks, and all of his many friends.

Update: Orin Kerr offers his thoughts here, linking to a tribute that The Philadelphia Daily News published in May 2003.
Posted at 03:54 PM by Howard Bashman



"Judge Becker had a vision - now we have a view": Ronnie Polaneczky had this op-ed Tuesday in The Philadelphia Daily News.

And The Philadelphia Inquirer yesterday contained an editorial entitled "Judge fights the fortress mentality."
Posted at 03:45 PM by Howard Bashman



First Circuit holds that Federal Aviation Administration Authorization Act of 1994 preempts portions of a Maine law intended to restrict and regulate the sale and delivery of tobacco products purchased via the internet or other electronic means: You can access today's ruling at this link.
Posted at 03:10 PM by Howard Bashman


"Law Firm Allegedly Paid Kickbacks to Plaintiffs": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition."
Posted at 02:25 PM by Howard Bashman


"State high court now says drug dogs OK": The Chicago Sun-Times today contains an article that begins, "Three years ago, the Illinois Supreme Court ruled 4-3 that using drug-sniffing dogs to sniff the outside of a car without reasonable suspicion that drugs might be inside violated people's rights. On Thursday, the court reversed itself and ruled 4-3 that it's all right to use drug-sniffing dogs in such instances."

The State Journal-Register of Springfield, Illinois reports today that "Court OKs drug dogs at traffic stops; State justices vote 4-3 in favor of constitutionality."

And The Galesburg (Ill.) Register-Mail reports that "Court allows use of drug dogs in traffic stops; Previous ruling said privacy rights violated by unreasonable search."

You can access yesterday's ruling of the Supreme Court of Illinois at this link.
Posted at 02:08 PM by Howard Bashman



"Judge Blocks Ky. Schools Graduation Prayer": The Associated Press provides this report.
Posted at 02:04 PM by Howard Bashman


"Why Did Luttig Quit? How Bush alienated one of his most compliant judges." Harvey A. Silverglate has this essay online at Reason.
Posted at 01:50 PM by Howard Bashman


Divided three-judge Sixth Circuit panel rejects attorney's commercial speech challenge to Village of Glendale, Ohio's ordinance prohibiting the display of "for-sale" signs on a vehicle parked on a public street: You can access today's ruling in this First Amendment commercial speech challenge at this link.
Posted at 10:30 AM by Howard Bashman


A review of "Anonymous Lawyer: A Novel." Available here.
Posted at 10:24 AM by Howard Bashman


In the May 2006 issue of the Virgnia Law Review: Chief Justice John G. Roberts, Jr. has an essay entitled "What Makes the D.C. Circuit Different? A Historical View."

And Law Professor Joseph T. Thai has an essay entitled "The Law Clerk Who Wrote Rasul v. Bush."
Posted at 10:18 AM by Howard Bashman



"Out Sick for the Enron Trial, and Rethinking It": This article appears today in The New York Times, along with an article headlined "A 2nd Criminal Trial Begins for Former Enron Chief." And columnist Floyd Norris has an essay entitled "What Fraud? All Was Fine at Enron" (TimesSelect subscription required).

Today in The Houston Chronicle, Mary Flood has articles headlined "Jurors cut short deliberations, go home for weekend; With 90 pages of instructions and indictments, early decision is unlikely" and "Lay's team challenges validity of signatures; Lawyers in his new loans case argue 'Autopen' isn't as legit as really signing off."

The Washington Post reports today that "Lay's Second Trial Starts As First Jury Deliberates."

And The Los Angeles Times contains an editorial entitled "Enron arrogance on trial: A jury is set to rule on the energy raider's dubious duo."
Posted at 08:33 AM by Howard Bashman



"Officers want more Supermax staffing; Union official says that prison riot is a matter of time": Yesterday's edition of The Rocky Mountain News contained an article that begins, "The federal 'Supermax' prison in Florence is dangerously understaffed, the correctional officers' union said Wednesday, leading to increasing violence that officers fear could get much worse."

And The Pueblo Chieftain reported yesterday that "McFadyen to testify on prison understaffing."
Posted at 08:30 AM by Howard Bashman



"SJC says tobacco firms can't blame smokers as defense": The Boston Globe contains this article today. My earlier coverage is here.
Posted at 07:30 AM by Howard Bashman


"Panel approves gay 'marriage' ban": This article appears today in The Washington Times.

The Milwaukee Journal Sentinel today contains an article headlined "Marital spat: Feingold, Specter clash on same-sex measure; Democrat walks out of Senate panel hearing."

And The Denver Post reports that "Gay-marriage ban revived; Senate panel OKs Allard's proposed constitutional amendment on party-line vote."
Posted at 07:28 AM by Howard Bashman



"Sniper evidence detailed; Forensic expert links Muhammad DNA to that found on rifle": The Baltimore Sun contains this article today.

And The Washington Post reports today that "Malvo May Implicate Muhammad in 5 of 6 Slayings, Source Says."
Posted at 07:24 AM by Howard Bashman



"Roberts gives light law lecture; Chief justice's speech draws laughs at state Judicial Conference": This article appears today in The Baltimore Sun.
Posted at 07:22 AM by Howard Bashman


The Washington Post is reporting: Today's newspaper reports that "Lawsuit Against CIA Is Dismissed; Mistaken Identity Led to Detention."

And in other news, "Prostitution Clause in AIDS Policy Ruled Illegal." My earlier coverage is here.
Posted at 07:20 AM by Howard Bashman



"Criminal Charges Levied Against Big Tort Law Firm": Josh Gerstein has this article today in The New York Sun. The newspaper also contains an editorial entitled "The Milberg Weiss Indictment."

The Los Angeles Times reports today that "Class-Action Law Firm Indicted in Fraud Case; Powerful Milberg Weiss is accused of paying plaintiffs to sue; Charges may hurt investor suits."

And USA Today reports that "Big-time law firm facing charges; $11 million in kickbacks alleged."
Posted at 07:18 AM by Howard Bashman



"Who Wins This Case? Lawyers; Firms that had once shunned criminal work now see white-collar defense as a potential growth business." This article appears today in The Los Angeles Times.
Posted at 07:15 AM by Howard Bashman


"Scalia Tells Congress to Mind Its Own Business": Today in The Washington Post, Charles Lane has an article that begins, "Justice Antonin Scalia rebuked fellow conservatives on Capitol Hill yesterday, saying they have gone too far in trying to prevent the Supreme Court from using foreign law in its constitutional rulings."

And today in The Los Angeles Times, David G. Savage has an article headlined "Scalia to Congress: Butt Out of Court's Use of Foreign Law."
Posted at 07:10 AM by Howard Bashman



"Second Hearing on Detroit Drug-Search Case Shows Deep Divisions on Supreme Court": Linda Greenhouse has this article today in The New York Times.

And today in The Washington Post, Charles Lane reports that "Privacy Case May Rest on Alito Vote; Forced Entry by Police at Issue."
Posted at 07:00 AM by Howard Bashman



"How Does President Bush Compare with Other Wartime Presidents With Respect to Free Speech Issues?" John W. Dean today has this essay online at FindLaw.
Posted at 06:44 AM by Howard Bashman


Thursday, May 18, 2006

In Friday's edition of The New York Times: Tomorrow's newspaper will contain an article headlined "U.S. Indictment for Big Law Firm in Class Actions."

And Neil A. Lewis will report that "Federal Judge Dismisses Lawsuit by Man Held in Terror Program."
Posted at 11:20 PM by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Justice Roberts Shows Lighter Side"; "Government Condition Barred on AIDS Funds" (my earlier coverage is here); and "Senate Takes Up New Media Shield Law."
Posted at 11:10 PM by Howard Bashman


"Milberg Firm, Two Name Partners Indicted": Justin Scheck of The Recorder provides this news update. Both the indictment and a press release that the U.S. Attorney for the Central District of California issued are available online.

Also online is a web site called Milberg Weiss Justice, which the law firm plans to use to "communicating the truth about the [federal government's] accusations and about how this unjust investigation only helps corrupt corporations escape accountability."
Posted at 08:25 PM by Howard Bashman



White House announces two federal appellate court nominees: As anticipated, Law Professor Kimberly A. Moore has been nominated to serve on the U.S. Court of Appeals for the Federal Circuit.

And U.S. Magistrate Judge Bobby E. Shepherd of the Western District of Arkansas has been nominated for the U.S. Court of Appeals for the Eighth Circuit.

The official nomination announcement can be accessed here.
Posted at 08:04 PM by Howard Bashman



"Scalia: Keep Foreign Law Out of Decisions." The Associated Press provides this report.
Posted at 06:05 PM by Howard Bashman


"Milberg Weiss, Two Partners Are Indicted Over Client Payments": Bloomberg News provides this report.
Posted at 05:35 PM by Howard Bashman


Divided three-judge Second Circuit panel rejects homeless man's vagueness and overbreadth challenge to New York City regulation that prohibits leaving boxes and erecting obstructions in public spaces: You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 05:00 PM by Howard Bashman


"Kentucky Governor's Pardon Deemed Valid": The Associated Press provides a report that begins, "The Kentucky Supreme Court on Thursday invalidated a string of indictments charging members of Gov. Ernie Fletcher's administration with rewarding political supporters with state jobs, leaving only the misdemeanor counts against the governor himself."

In other coverage, The Louisville Courier-Journal provides a news update headlined "Supreme Court rules out new indictments of those pardoned." And The Lexington Herald-Leader provides a news update headlined "Supreme Court backs pardon power."

You can access today's ruling of the Supreme Court of Kentucky at this link.
Posted at 04:54 PM by Howard Bashman



"Scalia Tells Congress to Stay Out of High Court Business; Justice speaks out against proposed legislation on invoking foreign law in Supreme Court constitutional decisions": law.com's Tony Mauro provides this news update.
Posted at 04:40 PM by Howard Bashman


"Bush OKs Commission for Rehnquist Bust": The Associated Press provides a report that begins, "President Bush on Thursday authorized the commission of a marble bust of the late-Chief Justice William H. Rehnquist that will be placed in the Supreme Court building."

And the White House today issued this related news release. The text of the Joint Resolution passed by Congress is available at this link.
Posted at 04:24 PM by Howard Bashman



"Prosecutors Seek Charges vs. N.Y. Law Firm": The Associated Press provides this report.

Update: Justin Scheck provides an update at The Recorder's "Legal Pad" blog.
Posted at 03:55 PM by Howard Bashman



"Massachusetts court strikes a blow to tobacco defense": The AP provides a report that begins, "The state's highest court on Thursday rejected one of the tobacco industry's most successful defenses in wrongful death lawsuits, ruling the companies cannot shield themselves from liability simply by claiming that smokers should know cigarettes are dangerous." You can access today's ruling of the Supreme Judicial Court of Massachusetts at this link.
Posted at 03:30 PM by Howard Bashman


"Supreme Court: OK to give drug suspect laxative." The Associated Press provides a report from Wisconsin that begins, "Police were within their rights when they forced a drug suspect to drink a laxative in hopes of recovering a bag of heroin he had swallowed, the state Supreme Court ruled Thursday." You can access today's ruling of the Supreme Court of Wisconsin at this link.
Posted at 03:28 PM by Howard Bashman


"Court reverses punitive damages award in tobacco case; The Oregon Court of Appeals affirms one award but splits and voids a $100 million judgment": This article appears today in The Oregonian. My earlier coverage is here.
Posted at 03:15 PM by Howard Bashman


"Police Search May Divide Supreme Court": Gina Holland of The Associated Press provides a report that begins, "Supreme Court justices sparred Thursday over police searches in a case that could signal a change in direction for the court after the arrival of two new conservative members."

Today the U.S. Supreme Court heard reargument in Hudson v. Michigan, No. 04-1360. The case was originally argued before the Court on January 9, 2006, and you can access here the transcript of that oral argument.
Posted at 03:00 PM by Howard Bashman



What privacy interest, if any, does an unauthorized driver have in a rental car? Today a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion addressing this issue, as to which other federal appellate courts have divided.
Posted at 01:00 PM by Howard Bashman


"Milberg Weiss indictment expected Thursday-WSJ": Reuters provides this report. And WSJ.com's "Law Blog" has a post stating that the indictment could be announced at 12:15 p.m. pacific time today.
Posted at 12:25 PM by Howard Bashman


"Feingold, Specter Clash Over Gay Marriage": The Associated Press provides a report that begins, "A Senate committee approved a constitutional amendment banning same-sex marriage Thursday, after a shouting match that ended when one Democrat strode out and the Republican chairman bid him 'good riddance.'"
Posted at 11:54 AM by Howard Bashman


"DKT argues that requiring it to adopt and to certify that it has a policy explicitly opposing prostitution and sex trafficking as a condition of entering into an agreement (or sub-agreement) with USAID to receive funding for its HIV/AIDS prevention work constitutes viewpoint-based restriction on speech." Today, the U.S. District Court for the District of Columbia agreed with DKT's argument and issued an opinion holding that "defendant USAID is permanently ENJOINED from (1) requiring DKT to have a policy explicitly opposing prostitution and sex trafficking under 42 U.S.C. § 7631(f); and (2) requiring DKT to certify that it has a policy explicitly opposing prostitution under AAPD 05-04."
Posted at 11:50 AM by Howard Bashman


"Panel says judge's ethics case not handled properly; 9th Circuit chief failed to appoint a committee": This article appears in the current issue of The National Law Journal.

I also discuss the matter in the current installment of my "On Appeal" column for law.com.
Posted at 11:08 AM by Howard Bashman



In today's edition of The Salt Lake Tribune: An article reports that "Wildlife ballot rules upheld; Appeals court says two-thirds majority vote passes muster." My earlier coverage appears here.

And in other news, "Couple sue to resume their use of peyote."
Posted at 10:25 AM by Howard Bashman



Available today from National Review Online: John J. Miller has an interesting essay entitled "I Want My SCTV: Hey justices, it's time for your close-up."

And Hadley Arkes has an essay entitled "Playing Well With Others? The chief justice makes you do a double-take."
Posted at 10:18 AM by Howard Bashman



"Sex offender must tell date's parents; Appeals court upholds unusual order to Sussex teenager who endangered his half-sister": This article appeared yesterday in The Newark Star-Ledger. You can access Tuesday's ruling of the Superior Court of New Jersey, Appellate Division, at this link.
Posted at 09:05 AM by Howard Bashman


The deadline for entries in the contest to award an advance reading copy of "Anonymous Lawyer: A Novel" is 5 p.m. eastern time today: Thanks to those who have already submitted entries. For those who have not yet submitted entries, the deadline is 5 p.m. eastern time today. Last weekend, my wife read the book from cover to cover in almost no time and said it was very entertaining and a real page-turner. Details on the contest, and how to enter, can be found at this link.

The winner of the contest will receive a copy of the book now, far in advance of the book's official release date of July 25, 2006.
Posted at 08:55 AM by Howard Bashman



Ninth Circuit nominee Sandra Segal Ikuta is on the agenda for a vote at today's executive business meeting of the Senate Judiciary Committee: You can view the full agenda at this link. The nominee's resume can be accessed here. The Alliance for Justice has issued a report on the nominee that includes an interesting evaluation of the cert. pool memos she wrote while clerking for Justice Sandra Day O'Connor.
Posted at 08:50 AM by Howard Bashman


"Allen and Warner want Virginian to replace Luttig; Separately, ex-head of Va. police group says N.C. judge bad choice": The Richmond Times-Dispatch contains this article today.
Posted at 08:40 AM by Howard Bashman


"Jurors in Enron Trial Begin Deliberations": This article appears today in The New York Times.

The Washington Post reports today that "Enron Trial Is In Jury's Hands; After Four Months, Deliberations Begin."

The Los Angeles Times reports that "Jurors Begin Deliberating Enron Case."

USA Today reports that "Prosecutor boils Enron case down to truth vs. lies."

In The Houston Chronicle, Mary Flood has a front page article headlined "Now it's up to the jury; Observers praise final arguments, say outcome rests on the believability of Lay and Skilling." And an article reports that "Attorneys put on a good show in closing act; But only the jury knows whose argument was the most persuasive."

Finally, from National Public Radio, yesterday's broadcast of "Day to Day" contained an audio segment entitled "Enron Trial Jurors Hold Fate of Lay, Skilling." And yesterday's broadcast of "Talk of the Nation" contained an audio segment entitled "Enron Trial in Jury's Hands" featuring Mary Flood. RealPlayer is required to launch these audio segments.
Posted at 07:50 AM by Howard Bashman



"ACLU to sue after community rejects unmarried pair; Black Jack, Mo., declines to change zoning law": USA Today contains this article today.

And The St. Louis Post-Dispatch reports today that "No evictions are planned in Black Jack," while yesterday's newspaper reported that "Unwed couple with kids lose vote."
Posted at 07:45 AM by Howard Bashman



"Billionaire's Divorce Deemed No State Secret; The California Supreme Court lets stand a lower court ruling that a politically connected investor can't have his records sealed": This article appears today in The Los Angeles Times.

And today in The San Francisco Chronicle, Bob Egelko reports that "Court backs open record in divorce."
Posted at 07:38 AM by Howard Bashman



"Pack Rats: It's not a good idea to start stacking the federal bench." Dahlia Lithwick has this jurisprudence essay online at Slate.
Posted at 07:30 AM by Howard Bashman


"Muhammad's Metamorphosis Impresses Some Trial Observers": The Washington Post today contains this front page article, along with an article headlined "Jury Sees Car Allegedly Used by Muhammad; Focus Turns to Physical Evidence Said to Link Defendant to 2002 Shootings."

And The Baltimore Sun today reports that "Sniper jurors view Caprice."
Posted at 07:28 AM by Howard Bashman



"Islamic Head Scarves at Issue in Killing of Judge in Turkey": This article appears today in The New York Times.

And The Washington Post reports today that "Judge Killed in Attack On Turkish High Court."
Posted at 07:12 AM by Howard Bashman



"Judges Should Police Themselves": The New York Times today contains an editorial that begins, "Congress is considering a bill to establish an inspector general who would have the power to investigate federal judges."

This week's installment of my "On Appeal" column for law.com is on the same topic, and you can access it at this link.
Posted at 07:10 AM by Howard Bashman



Wednesday, May 17, 2006

"Court Vacates Verdict vs. Philip Morris": The Associated Press provides a report that begins, "A landmark $150 million jury verdict against Philip Morris was vacated Wednesday by an appeals court, which ordered a new trial to reconsider damages against the tobacco manufacturer after a trial judge ruled the amount was excessive." You can access today's ruling of the Oregon Court of Appeals at this link.
Posted at 11:05 PM by Howard Bashman


"Plaintiffs Can Keep AT&T Papers in Domestic Spying Case": law.com's Justin Scheck provides this report.
Posted at 10:55 PM by Howard Bashman


Supreme Court of California rejects dubious certification request from the U.S. Court of Appeals for the Ninth Circuit: Perhaps you remember my post from March 14, 2006 titled "Federal appellate court certifies questions of federal law to a state supreme court." And, in a post earlier that day, I called the Ninth Circuit's certification order largely a "meaningless exercise."

It appears that California's highest court has agreed, as today it entered an order denying the Ninth Circuit's certification request. Thanks to Kimberly A. Kralowec of "The UCL Practitioner" blog for drawing today's development to my attention. Her earlier coverage of the matter is here.
Posted at 10:45 PM by Howard Bashman



"We are evenly divided, however, for substantially the same reasons as are set forth in the panel's majority and dissenting opinions, on the question whether a Bivens action is available against employees of a privately-operated prison." Sometimes taking a difficult issue en banc does not result in the issue's resolution, as this en banc per curiam opinion that the U.S. Court of Appeals for the Tenth Circuit announced today demonstrates. The original three-judge panel's decision in the case can be accessed here.
Posted at 10:33 PM by Howard Bashman


"Respectfully disagreeing with the First Circuit, we hold that a constitutional provision imposing a supermajority requirement for enactment of initiatives on specific topics does not implicate the freedom of speech." Circuit Judge Michael W. McConnell issued this interesting opinion today on behalf of the en banc U.S. Court of Appeals for the Tenth Circuit.
Posted at 10:24 PM by Howard Bashman


Three-judge Ninth Circuit panel that decided controversial elementary school sex survey case still believes in the soundness of its original decision: Why merely lobby against rehearing en banc behind-the-scenes when you can do so publicly, as the original panel did in this per curiam opinion issued today.

The three-judge panel's original ruling in this controversial case can be accessed here, while my coverage of that ruling appears at this link.
Posted at 10:14 PM by Howard Bashman



"Senate goes easy on moderate, to annoyance of conservatives": Today in The Daily Journal of California, Lawrence Hurley has an article that begins, "Conservative activists vented their frustration Tuesday when the Republican-led Senate rubberstamped the nomination of Los Angeles attorney Milan D. Smith Jr. to the 9th U.S. Court of Appeals while leading lights of right-wing jurisprudence wait in limbo for other vacant circuit court positions."
Posted at 08:58 PM by Howard Bashman


"Partisan Ethics: Some perspective on the charges against Judge Boyle." Edward Whelan has this essay today at National Review Online.
Posted at 08:50 PM by Howard Bashman


The Associated Press is reporting: David Kravets reports that "Calif. Tosses Law Sealing Divorce Records."

And in other news, "Jury Begins Deliberations in Enron Case"; "Kan. Justice Investigated Over Lunch Talk"; "Ga. to Appeal Gay Marriage Ban Ruling"; and "Judge Agrees to Extend Microsoft Oversight."
Posted at 08:40 PM by Howard Bashman



Programming note: A new appellate case that I am working on in connection with my day job will have me out of the office for the balance of the afternoon. Additional posts will appear here later today.
Posted at 12:45 PM by Howard Bashman


"Senate approves Smith's brother for federal appeals court": The Associated Press provides a report that begins, "The Senate Tuesday unanimously confirmed the brother of Oregon Sen. Gordon Smith as a federal appeals court judge. Milan Smith is a Los Angeles business lawyer and a former member of California's Fair Employment and Housing Commission. He will serve on the San Francisco-based 9th U.S. Circuit Court of Appeals."

And the Public Information Office of the U.S. Court of Appeals for the Ninth Circuit has issued a news release entitled "Senate Confirms Milan D. Smith, Jr. for Ninth Circuit Court of Appeals."
Posted at 12:44 PM by Howard Bashman



"Virtues and Verdicts: Legal scholar Ronald Dworkin takes aim at Roberts, Alito, Scalia, and more." In the May 22, 2006 issue of The New Republic, Law Professor Cass R. Sunstein has this review (pass-through link) of Ronald Dworkin's new book, "Justice in Robes."
Posted at 12:05 PM by Howard Bashman


Controlled Substances Act's classification of hemp as marijuana is not irrational, Eighth Circuit holds: Indian Tribe members seeking to engage in sustainable farming on federal trust lands by growing hemp without a Certificate of Registration from the Drug Enforcement Agency permitting the manufacture of marijuana are out of luck, a unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit ruled today in an opinion that you can access here.
Posted at 11:33 AM by Howard Bashman


"Blogs Raise New Questions About the Line Between Public and Private": Ken Strutin, director of legal information services for the New York State Defenders Association, has this essay online at law.com.
Posted at 11:28 AM by Howard Bashman


"Cigarette fee upheld; door open for tax relief; Court says '98 settlement doesn't ban new charges on smokers": The St. Paul Pioneer Press contains this article today.

And The Minneapolis Star Tribune today contains articles headlined "State court upholds tobacco fee; The Minnesota Supreme Court ruled that the 75-cents-per-pack cigarette fee is legal; Legislative leaders say the funds will preserve the chances for property tax relief" and "Though expected, ruling draws strong reactions; Smokers and their suppliers denounced the decision; Health advocates praised it as a saver of money and lives," along with an editorial entitled "A good and timely tobacco-fee ruling: Court decision is good for taxpayers and public health."

You can access yesterday's ruling of the Supreme Court of Minnesota at this link.
Posted at 11:10 AM by Howard Bashman



"Boyle waits for 4th Circuit spot": This article appears today in The Herald-Sun of Durham, North Carolina.
Posted at 09:33 AM by Howard Bashman


"Kline will appeal in teen-sex case": The Wichita Eagle today contains an article that begins, "Kansas Attorney General Phill Kline on Tuesday formally filed notice that he'll appeal a federal judge's ruling on the sexual privacy of teenagers."
Posted at 09:30 AM by Howard Bashman


"Ethics panel: Justice didn't violate code; Senator released plan to fund schools a day after meeting with McFarland." The Topeka Capital-Journal today contains an article that begins, "A judicial ethics panel found nothing inappropriate about a lunch meeting Kansas Supreme Court Chief Justice Kay McFarland had last month with an influential state lawmaker, according to a Topeka man who made the complaint against the judge."
Posted at 09:28 AM by Howard Bashman


"51 months in prison for Hatch; Citing his perjury, a federal judge adds to the penalty the Survivor star faced for tax evasion": The Providence Journal contains this article today.
Posted at 09:25 AM by Howard Bashman


"Vacancy may offer platform for Romney Appeals Court chief to retire": The Boston Globe today contains an article that begins, "With the head of the Massachusetts Appeals Court poised to retire in July, many in the state's legal community predict that Governor Mitt Romney will fill the most prominent judgeship likely to become vacant in his tenure with someone whose background will showcase Romney's conservative bona fides for a possible presidential bid in 2008."
Posted at 09:22 AM by Howard Bashman


The Hartford Courant is reporting: In today's newspaper, Lynne Tuohy has an article headlined "Changes In Court Task Force; Two Judges Replaced On Panel Examining Access To Records."

And in other news, "Judge's Defenders Counterattack; Protest Lawyers' Anonymous 'Smear' Of Federal Court Nominee."
Posted at 07:30 AM by Howard Bashman



"Witness Indicates Malvo's Cooperation With Police; Sniper Implicated Muhammad, Md. Court Is Told": The Washington Post contains this article today.

And The Baltimore Sun today contains articles headlined "Malvo helping prosecution; He has implicated Muhammad, police sergeant says at sniper trial" and "Jurors to see 'deadly Caprice.'"
Posted at 07:28 AM by Howard Bashman



"Enron Defense Sums Up Its Case; Closing Statements Rife With Emotion": This article appears today in The Washington Post.

The New York Times today contains an article headlined "Fiery Plea by Defense in Houston."

The Los Angeles Times contains an article headlined "Passionate Pitch by Enron Defense."

In The Houston Chronicle, Mary Flood reports that "This time, prosecution's in hot seat; Defense says the government went after its prize, building a case on 'radioactive' witnesses." And an article reports that "Jury resisting manipulation, consultant says; Group is most engaged by facts, not the broader themes, she says."

USA Today reports that "Enron defense goes out in style; Dramatic closing caps long case."

The Christian Science Monitor reports that "Enron judge eases way to guilty ruling; Judge Sim Lake said that the act of ignoring red flags can be criminal, stunning the legal community."

Yesterday evening's broadcast of NPR's "All Things Considered" contained an audio segment entitled "Skilling-Lay Attorneys Make Final Arguments."

And today's broadcast of NPR's "Morning Edition" contained an audio segment entitled "Defense Delivers Passionate Rebuttal of Enron Prosecution." RealPlayer is required to launch these audio segments.
Posted at 07:25 AM by Howard Bashman



"The EBay effect: Supreme Court ruling on auction pioneer could usher in long-overdue patent reform." The Los Angeles Times contains this editorial today.
Posted at 07:20 AM by Howard Bashman


"Same-Sex Marriage Amendment Is Struck Down by Georgia Judge": This article appears today in The New York Times.

And The Atlanta Journal-Constitution reports today that "Georgia's gay marriage ban voided; Unconstitutional in state, county judge rules."
Posted at 07:05 AM by Howard Bashman



"A Prominent Law Firm Prepares for Indictment": The New York Times today contains an article that begins, "For years, the securities class-action law firm of Milberg Weiss Bershad & Schulman sparked fear and uncertainty in executive suites and corporate boardrooms across the country."

And The Los Angeles Times today contains an article headlined "A Bid by Milberg to Avert Charges? Two partners' departure may be an effort to save the law firm from a kickback indictment; But even a milder legal action could cripple it."
Posted at 07:00 AM by Howard Bashman



"Retribution Without Cruelty: The Supreme Court Considers an Eighth Amendment Challenge to Lethal Injections." Sherry F. Colb today has this essay online at FindLaw.
Posted at 06:45 AM by Howard Bashman


Tuesday, May 16, 2006

Available online from law.com: Tony Mauro has an item headlined "Luttig: Padilla Case Played No Role in Resignation."

In other news, "Slaying of N.Y. Appellate Clerk Raises Myriad Legal Questions."

An article reports that "In Closing Arguments, Enron Defense Zeroes In on Juror Hesitation."

Marcia Coyle reports that "Battle Expands Over Attorney-Client Privilege."

And in other news, "Bershad, Schulman Take Leaves of Absence From Milberg Weiss."
Posted at 10:20 PM by Howard Bashman



"Pressure groups take aim at Frist over judges": This article will appear Wednesday in The Hill.
Posted at 10:08 PM by Howard Bashman


"Judge Strikes Down Ga. Ban on Gay Marriage": The AP provides this report.
Posted at 07:24 PM by Howard Bashman


"Defense: Gov't Manufactured Enron Case." The Associated Press provides this report.
Posted at 05:30 PM by Howard Bashman


"Witness: Malvo linked defendant to shootings; Va. death row inmate questions investigator on white box truck reports." The Baltimore Sun provides this news update. In addition, today's newspaper contains an article headlined "Final sniper slaying detailed; Sixth day of trial leads to expected testimony of arrest."

And The Washington Post today reports that "Witnesses Recall Contacts They Had With Muhammad."
Posted at 05:20 PM by Howard Bashman



"High Court Won't Hear Commuter Tax Bid": This article appears today in The Washington Post.
Posted at 05:14 PM by Howard Bashman


"Hatch: Court Briefed on Bush Surveillance." The Associated Press provides this report.
Posted at 04:30 PM by Howard Bashman


"New lethal injection challenge": At "SCOTUSblog," Lyle Denniston has a post that begins, "A Tennessee death row inmate, Sedley Alley, on Tuesday asked the Supreme Court to block his scheduled execution for 1 a.m. Wednesday, as he raised a challenge to the chemical protocol used in Tennessee for executions."

And The Tennessean provides a news update headlined "Convicted killer Alley declines last meal."
Posted at 04:08 PM by Howard Bashman



The U.S. Court of Appeals for the Tenth Circuit unveils its redesigned web site: You can view the newly redesigned site by clicking here.
Posted at 03:38 PM by Howard Bashman


"Slate's Jurisprudence: Conservative Court Nominees." This audio segment (RealPlayer required) featuring Dahlia Lithwick appeared on today's broadcast of NPR's "Day to Day."
Posted at 03:00 PM by Howard Bashman


"The Happy Warrior -- In Memoriam: Judge Howard T. Markey (1920-2006)." Chief Judge Paul R. Michel of the U.S. Court of Appeals for the Federal Circuit has this essay in this week's edition of Legal Times.
Posted at 02:55 PM by Howard Bashman


"Utah Supreme Court upholds the state's historic ban on polygamy": The Salt Lake Tribune provides this news update reporting on a decision that the Supreme Court of Utah issued today.

And The Associated Press reports that "Utah Supreme Court Backs Polygamy Ban."
Posted at 02:45 PM by Howard Bashman



"Seattle's big role in fight on global warming": The Seattle Times today contains an article that begins, "The city of Seattle, a group of Alaska Natives and some of the nation's top climate scientists -- including two from the University of Washington -- thrust themselves into a high-profile legal battle Monday, hoping to resolve a stalemate over global warming. The group is fronting an orchestrated, national campaign to convince the Supreme Court that the federal government's failure to regulate automobile emissions is already causing harm, from shrinking mountain snowpack to ecological changes in Arctic Alaska."

The cert. stage briefing in the case can be accessed via this link.
Posted at 02:42 PM by Howard Bashman



"Justices to Hear Environmental Appeal on EPA Emissions Rule": Charles Lane has this article today in The Washington Post. And the newspaper today also contains a related editorial entitled "The Court and Clean Air: When is an increase in pollution not an increase in pollution? Ask the EPA."
Posted at 02:40 PM by Howard Bashman


"Barnes campaign hits goal for Phila. move; $150 million to build on Parkway, aid endowment": The Philadelphia Inquirer today contains an article that begins, "The campaign to raise $150 million to move the legendary - and financially shaky - Barnes Foundation from its Merion home to the Benjamin Franklin Parkway has reached its goal, officials of three large foundations backing the move announced yesterday."
Posted at 02:30 PM by Howard Bashman


From today's edition of The Wall Street Journal: Jess Bravin, Mylene Mangalindan, and Don Clark have an article headlined "EBay Ruling Changes Dynamic In Patent-Infringement Cases" (pass-through link). Earlier today, I collected additional press coverage at this link.

And Jess Bravin, John J. Fialka, and Michael Schroeder have an article headlined "Supreme Court Rebuffs Ohio Tax-Break Challenge" (pass-through link). Earlier today, I collected additional press coverage at this link.
Posted at 12:55 PM by Howard Bashman



Attention Aras: The Providence Journal's news blog provides a post titled "Harsh sentence for Hatch" that begins, "Survivor star Richard Hatch was sentenced today to serve 51 months in prison for tax evasion and perjury, plus three years of supervised release after his sentence."

And today's issue of The Boston Globe contains an article headlined "For Hatch, fame has been the real test of survival."

Thanks to "Rhode Island Law Blog" for the pointer.
Posted at 12:35 PM by Howard Bashman



"Tennessee lethal injection litigation splits Sixth Circuit": The blog "Sentencing Law and Policy" provides this post about an order denying both rehearing en banc and panel rehearing that the U.S. Court of Appeals for the Sixth Circuit issued today.
Posted at 12:05 PM by Howard Bashman


Just how cheap is the State of Wisconsin? Today, a unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit upholds Wisconsin's invocation of Eleventh Amendment immunity to avoid being sued in federal court by Charles County, Missouri, which was seeking to recover the sum of $5,421.86 in expenses that the county allegedly incurred in jailing a fugitive on the run from Wisconsin authorities pending the fugitive's extradition back to Wisconsin. You can access today's ruling at this link.
Posted at 11:33 AM by Howard Bashman


"U.S. opens assault on wiretap suit; AT&T is accused of aiding surveillance": Bob Egelko has this front page article today in The San Francisco Chronicle. My earlier coverage appears here.
Posted at 11:25 AM by Howard Bashman


"Justices Order Rethinking of eBay Case": Linda Greenhouse has this article today in The New York Times.

Today in The Washington Post, Charles Lane and Yuki Noguchi report that "High Court Rejects Patent Rulings Against EBay."

In The Los Angeles Times, David G. Savage and Jim Puzzanghera report that "Justices Back EBay in Patent Ruling; Supreme Court decision limits the ability of judges to halt the sale of products in dispute."

In USA Today, Joan Biskupic reports that "Supreme Court lets eBay keep using 'Buy It Now'; But patent case fight over feature continues."

The San Jose Mercury News reports that "EBay wins patent ruling; Supreme Court rejects automatic injunctions when violations are found."

And The San Francisco Chronicle reports that "Court eases patent 'doomsday'; Ramifications of ruling on eBay infringement will depend on further decisions."
Posted at 11:15 AM by Howard Bashman



"Prosecutor: Lay, Skilling 'cheated'; Shareholders were 'profoundly harmed' by their acts, she says in closing argument." Mary Flood has this article today in The Houston Chronicle. The newspaper also contains an article headlined "Jury's reading assignment: 55 pages from judge; Inclusion of the 'willful blindness' clause in Lake's instructions may play critical role."

The New York Times reports today that "U.S. Levels a Final Blast at Enron Chiefs."

The Washington Post reports that "Enron Trial Jurors Hear Closing Arguments; Prosecution Sums Up Fraud Case as Accounting Tricks, Hocus Pocus and Lies."

The Los Angeles Times contains an article headlined "Prosecution: Enron Execs Self-Serving; As closing arguments begin, an attorney tells the jury that Kenneth Lay and Jeffrey Skilling acted as if they alone owned the company."

USA Today contains an article headlined "Prosecutor: 'Do not let them get away with it'; Enron jury to hear from defense today."

Yesterday evening's broadcast of NPR's "All Things Considered" contained an audio segment entitled "Enron Case Goes to Jury This Week."

And today's broadcast of "Morning Edition" contained an audio segment entitled "Prosecution Lambastes Enron Defendants in Closing Arguments." Real Player is required to play these audio segments.
Posted at 11:00 AM by Howard Bashman



"Associate's IP Blog Is Patently Good Publicity": IP Law & Business offers this recent profile of Dennis Crouch of "Patently-O: Patent Law Blog."
Posted at 10:05 AM by Howard Bashman


"Roberts, at Ease in New Role, Puts Stamp on U.S. Supreme Court": Yesterday, Greg Stohr of Bloomberg News provided this report.
Posted at 09:54 AM by Howard Bashman


"'Nuke' could backfire, say some on right": The Hill today contains an article that begins, "Some conservatives are worried that a filibuster-crushing Senate rules change could backfire on their movement, ultimately robbing them of a powerful weapon they have used effectively to battle liberals and centrists in the past." I made a similar argument here back in April 2005.

law.com's T.R. Goldman reports that "Kavanaugh goes forward as judge wars heat up."

And The Washington Post today contains a news brief titled "For GOP, a Double Setback on Judges" (third item).
Posted at 09:50 AM by Howard Bashman



The first order of business on the U.S. Senate's agenda after convening at 9:45 a.m. today -- confirming Milan D. Smith, Jr. to serve on the U.S. Court of Appeals for the Ninth Circuit: More background on the person soon to be the Ninth Circuit's newest judge is available via his law firm biography.

Update: This morning's vote in favor of confirmation was 93-0.
Posted at 08:44 AM by Howard Bashman



"Big Corporate Tax Breaks Upheld; Taxpayers had no right to fight state incentives in U.S. court, justices say; But the case isn't dead": David G. Savage has this article today in The Los Angeles Times.

The Boston Globe reports today that "Suit vs. corporate tax breaks unresolved; Ruling sends case back to lower courts, foiling NU professor."

The Toledo Blade reports that "Justices reject suit against Jeep; Taxpayers challenged investment credit for new factory."

The Cleveland Plain Dealer reports that "Court sides with Ohio on tax breaks; Taxpayers lack standing to sue state, justices say."

The Columbus Dispatch reports that "Tax breaks can be used to attract companies."

The Detroit News reports that "Supreme Court backs DCX tax breaks; Ruling in Ohio case is big victory for businesses that seek incentives from local, state governments."

And USA Today reports that "DaimlerChrysler wins tax dispute lawsuit."
Posted at 08:30 AM by Howard Bashman



"Getting Bent Over Gender: A San Diego attorney has filed suits targeting ballpark promotions aimed at specific groups; Some say he's misusing a state civil rights act." This article appears today in The Los Angeles Times.
Posted at 08:22 AM by Howard Bashman


"Bush stomps on Fourth Amendment": Law Professor Laurence H. Tribe has this op-ed today in The Boston Globe.
Posted at 08:20 AM by Howard Bashman


"Skakel Taps Bush Lawyer For Appeal": Today in The Hartford Courant, Lynne Tuohy has an article that begins, "If attorney Theodore B. Olson can help George W. Bush and Dick Cheney win a presidential election through his persuasive arguments to the nation's highest court, what can he do for convicted killer Michael Skakel?"
Posted at 08:15 AM by Howard Bashman


About that dam case: The Portland (Me.) Press Herald reports today that "High court backs state in dam case."

And today in The New York Times, Linda Greenhouse reports that "Justices Uphold State Rules in Decision on Dam Licenses."
Posted at 08:04 AM by Howard Bashman



"Anna Nicole Smith Wins at the Supreme Court: She's Closer to Collecting From Her Late Husband's Estate, But Many Hurdles Still Remain." Joanna Grossman today has this essay online at FindLaw.
Posted at 07:55 AM by Howard Bashman


Monday, May 15, 2006

Available online from law.com: Tony Mauro reports that "Supreme Court Ruling for eBay a Major Victory for Big Patent Holders; In concurring opinion, four justices take note of growth of 'industry' of small patent holders known as patent trolls."

Shannon P. Duffy reports that "Wyeth Wins Fen-Phen Appeal as Settlement Talks Continue."

In other news, "1st Circuit Rejects a Class Action Ban; Court joins 9th Circuit in rejecting class action waivers, but for different reasons."

And Justin Scheck reports that "Milberg Weiss Weighs Nonprosecution Deal."
Posted at 11:00 PM by Howard Bashman



"Gay rights group to appeal court decision": United Press International provides a report that begins, "A gay rights advocacy group will appeal a U.S. district court ruling that dismissed a lawsuit brought by 14 gay former service members. The U.S. District Court for the District of Massachusetts dismissed on April 14 the lawsuit, Cook v. Rumsfeld, which challenged the military's ban on homosexuals."

And the Servicemembers Legal Defense Network today issued a press release entitled "Gay Veterans Announce Appeal of District Court Ruling on 'Don't Ask, Don't Tell' Challenge."
Posted at 10:10 PM by Howard Bashman



"State's highest court in no rush on gay marriage; Some worry politics is holding up a ruling on hot-button issue": The Associated Press provides this report from Washington State.
Posted at 10:01 PM by Howard Bashman


"Court: False accusations against police are protected speech." David Kravets of The Associated Press provides a report that begins, "The U.S. Supreme Court refused on Monday to consider reinstating a California law adopted after the Rodney King beating that made it a crime to knowingly lodge false accusations against police officers."
Posted at 08:55 PM by Howard Bashman


"Burden of Proof: Jim McCloskey desperately wanted to save Roger Coleman from the electric chair; Maybe a little too desperately." This article appeared yesterday in The Washington Post Magazine.
Posted at 08:54 PM by Howard Bashman


News from Georgetown University Law Center: "Chief Justice Roberts is Georgetown Law Commencement Speaker" and Sasha Volokh will be spending the next two academic years there as a Visiting Assistant Professor.
Posted at 08:50 PM by Howard Bashman


"eBay earns minor victory at Supreme Court": Stephen Henderson of Knight Ridder Newspapers provides this report.

The San Jose Mercury News provides an update headlined "Supreme Court sides with eBay; Ruling gives courts more flexibility in handling patent disputes."

The San Francisco Chronicle provides a news update headlined "High court sides with eBay over patent-case injunctions."

And The Los Angeles Times provides a news update headlined "Supreme Court Sides With Ebay on Patent Issue."
Posted at 08:33 PM by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Court Won't Rush Appeal on Same-Sex Ad"; "Group Cheers Top Court Ruling in eBay Case"; "High Court Weighs Forced Pollution Control"; and "Ex-Solicitor General to Help Skakel Appeal."
Posted at 07:00 PM by Howard Bashman


Don't look now: A three-judge panel of the U.S. Court of Appeals for the Second Circuit today issued a decision in which the majority opinion explains that the habeas petitioner is arguing that "the state trial court's exclusion of his brother and sister during the testimony of two undercover officers, unless they consented to sitting behind a screen, violated his Sixth Amendment right to a public trial." The Second Circuit today "vacate[s] the district court's decision because we find that the state court failed to make the requisite particularized findings necessary to justify the exclusion" and remands for a supplemental evidentiary hearing on the issue.
Posted at 05:05 PM by Howard Bashman


"Prosecutors: Enron defense 'ridiculous'; In its closing arguments, the government tells jurors that Skilling and Lay stole, cheated and lied to prop up Enron's stock price." CNNMoney.com provides this report.
Posted at 04:33 PM by Howard Bashman


"Boeing Reaches Tentative Settlement": The Associated Press provides a report that begins, "Boeing Co. has reached a tentative settlement with the government that calls for it to pay $615 million to end a three-year Justice Department investigation into reported defense contracting scandals, a federal official familiar with the details of the agreement said Monday."

Somewhat relatedly, at WSJ.com's "Law Blog," Ashby Jones has a post today titled "Luttig -- from Bench to Boss."
Posted at 03:45 PM by Howard Bashman



"The Marketplace Report: Enron Trial Set for Jury." This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Day to Day."
Posted at 03:40 PM by Howard Bashman


"Crawford Greenburg to Join ABC News Team; Veteran Print Journalist to Cover Political, Legal and Cultural Issues": TV Week provides a report that begins, "ABC News has hired print veteran Jan Crawford Greenburg to cover political, legal and cultural issues as a Washington-based correspondent."
Posted at 03:15 PM by Howard Bashman


The Sacramento Bee is reporting: Today's newspaper contains articles headlined "Sides dig in for a battle over privacy" and "Death penalty dilemma: For some legislators, medicine and politics create a quandary."
Posted at 02:48 PM by Howard Bashman


"Listen to Nino: Let's amend the Constitution to include a reasonable right to privacy." Peter C.D. Mulcahy has this op-ed today in The Harvard Crimson.
Posted at 02:44 PM by Howard Bashman


The Associated Press is reporting: Now available online are articles headlined "High Court Stays Out of Neb. School Case" and "Closing Arguments Under Way in Enron Trial."
Posted at 02:35 PM by Howard Bashman


"Right wing goes after 9th Circuit Court": Columnist Joel Connelly has this op-ed today in The Seattle Post-Intelligencer.
Posted at 02:23 PM by Howard Bashman


Time to begin part two of the contest to award an advance reading copy of "Anonymous Lawyer: A Novel." By the way, my wife tremendously enjoyed the book and especially loved its sarcastic humor. She borrowed my copy on Friday night and had finished it by yesterday afternoon. Plus, she usually doesn't like to read stuff about lawyers, nor had she ever read the "Anonymous Lawyer" blog.

And now on to part two of the contest. The winner of part one was Rory Miller, who submitted the following contest idea:

Keeping with the theme of the blog (and, I'm assuming, the novel), you should hold a contest where readers sumbit their own stories, true or false, of the most egregious and misanthropic behavior of a lawyer they've had to work under.

The contest will be judged on the sheer display of soulless hatred for the attorney's fellow man.

For submitting this winning entry, an advance reading copy of the book is now on its way to Rory. And the final advance reading copy of the book available for me to bestow will be awarded to the "How Appealing" reader who, in my judgment, submits the best entry in response to Rory's contest idea. Entries will be accepted via email to appellateblog@hotmail.com through 5 p.m. eastern time on Thursday, May 18, 2006, and the winner will be announced sometime soon after the time for submission of entries has expired.
Posted at 12:40 PM by Howard Bashman


U.S. Court of Appeals for the Eighth Circuit rejects First Amendment challenge to policies governing placement of newspaper vending machines at Iowa highway rest areas: You can access today's unanimous per curiam ruling at this link.
Posted at 12:27 PM by Howard Bashman


Today's U.S. Supreme Court Order List and opinions in argued cases: You can access today's Order List at this link. In addition to granting review in four cases, the Court also called for the views of the Solicitor General in two cases.

The Court today issued opinions in the following four cases (click on the case name to access the opinion):

1. eBay Inc. v. MercExchange, L.L.C., No. 05-130 (oral argument transcript here);

2. DaimlerChrysler Corp. v. Cuno, No. 04-1704 (oral argument transcript here);

3. S.D. Warren Co. v. Maine Bd. of Environmental Protection, No. 04-1527 (oral argument transcript here); and

4. Sereboff v. Mid Atlantic Medical Services, Inc., No. 05-260 (oral argument transcript here).

At "SCOTUSblog," Lyle Denniston has a post titled "Court limits patent injunctions, grants 4 cases."

In early press coverage, The Associated Press reports that "Justices Block Ohio Taxpayers' Lawsuit"; "Supreme Court Orders New Hearing for EBay"; "Supreme Court to Revisit Old Cases"; "States' Power to Regulate Rivers Upheld"; and "Supreme Court Rejects Indian Tribe's Case." In addition, The AP's Gina Holland reports that "Supreme Court Will Hear Pollution Case" and "Justices Shy Away From Gay Parent's Case."

Meanwhile, Bloomberg News reports that "EBay Wins at U.S. Supreme Court on Patent Orders" and "U.S. Supreme Court in DaimlerChrysler Case Revives Tax Credit."
Posted at 10:02 AM by Howard Bashman



"Federal judge Roth to give up full-time work; Opening on bench has legal watchers guessing who'll be tapped": This article appeared Saturday in The News Journal of Wilmington, Delaware.
Posted at 10:00 AM by Howard Bashman


"Frothing up the GOP base with some judicial zanies": Columnist Cragg Hines had this op-ed Saturday in The Houston Chronicle.
Posted at 09:22 AM by Howard Bashman


"Enron Fraud Trial Moves to Closing Arguments": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition."
Posted at 09:20 AM by Howard Bashman


"Bosma appeals prayer ruling; He wants ban on religious content to be overturned": This article appeared Saturday in The Indianapolis Star.
Posted at 07:18 AM by Howard Bashman


"Cross case brings mountain of hate mail; Mount Soledad attorney no stranger to controversy": Yesterday's edition of The San Diego Union-Tribune contained this article.
Posted at 07:15 AM by Howard Bashman


"Teens' online postings are new tool for police": This article appears today in The Boston Globe.
Posted at 07:12 AM by Howard Bashman


"Exaggerations Plague Debate Over Need for Judicial Inspector General": The brand new installment of my "On Appeal" column for law.com can be accessed here.
Posted at 07:05 AM by Howard Bashman


"Privacy? What privacy? Cameras, cards and all sorts of data-gathering techniques can follow almost your every move." This article appeared yesterday in The Chicago Tribune.
Posted at 07:04 AM by Howard Bashman


"Should we close Guantanamo?" Yesterday's edition of The Chicago Tribune contained this editorial.
Posted at 07:02 AM by Howard Bashman


"A Last Chance to Make a Case; Closing arguments in the Enron trial may use outside issues to undermine credibility": This article appears today in The Los Angeles Times.
Posted at 07:00 AM by Howard Bashman


"Republicans Seek to Revive Their Activists; Amid Bush's Low Ratings, Party's Midterm Plan Focuses On Court Nominees, Social Issues": Jeanne Cummings has this article (free access) today in The Wall Street Journal.
Posted at 06:54 AM by Howard Bashman


"Former Clerks' Signing Bonuses Rival Salaries on the High Court": Charles Lane has this article today in The Washington Post.
Posted at 06:50 AM by Howard Bashman


"Blair Weighs Move to Limit Courts' Power in Rights Laws": The New York Times today contains an article that begins, "Prime Minister Tony Blair says he is contemplating changes in Britain's human rights laws, limiting the power of courts to challenge the government, after a paroled rapist killed a woman and a judge refused to send several hijackers back to their country."
Posted at 06:44 AM by Howard Bashman


"Uighurs in Albania": Joanne Mariner has this essay online at FindLaw.
Posted at 06:40 AM by Howard Bashman


"Blawg Review #57": Available here, at "Lawyerlike."
Posted at 06:35 AM by Howard Bashman


Sunday, May 14, 2006

"Divided Justices Resume Hearings; Split In Supreme Court Mirrors California Case": Today in The Hartford Courant, Lynne Tuohy has an article that begins, "The state Supreme Court Monday resumes hearing cases for the first time since the revelation last month that former Chief Justice William J. Sullivan secretly held up release of a controversial ruling to help his protege, Justice Peter T. Zarella, succeed him as chief justice."
Posted at 05:12 PM by Howard Bashman


"The Enron trial: Time to wrap it up and boil it down; Both sides have just a few hours to refresh jurors' minds and sum up a 15-week trial." This article appears today in The Houston Chronicle.
Posted at 05:10 PM by Howard Bashman


"Washington Sniper's Defense Plan Emerges": The Associated Press provides this report.
Posted at 05:08 PM by Howard Bashman


"It's the Jury's Turn: Enron chiefs Lay and Skilling placed a big bet on themselves by taking the stand; Will it pay off?" This article will appear in the May 22, 2006 issue of U.S. News & World Report.
Posted at 05:00 PM by Howard Bashman


"Justice Department Asks U.S. Judge to Dismiss AT&T Suit; Possible damage to national security is cited in the case related to domestic eavesdropping; Negroponte's office and the NSA join in request": The Los Angeles Times contains this article today.

And yesterday in The San Francisco Chronicle, Bob Egelko had an article headlined "U.S. moves in secret to quash suit against AT&T; Privacy group says firm gave records to surveillance program."

The federal government's motion to dismiss can be accessed here, while additional information about the lawsuit is available via this link.
Posted at 01:55 PM by Howard Bashman



"Sniper defense dwells on minutiae; Muhammad's strategy called 'meaningless'": This article appears today in The Baltimore Sun.
Posted at 01:45 PM by Howard Bashman


"Israel's High Court Upholds Marriage Law": The Washington Post provides a news update that begins, "Israel's high court upheld a law Sunday that sharply restricts the rights of Palestinians married to Israeli spouses to live inside Israel."

The Jerusalem Post provides a news update headlined "Court rules to uphold Citizenship Law."

And Haaretz provides a news update headlined "Court narrowly upholds 'family reunification' ban."
Posted at 01:35 PM by Howard Bashman



"4th Circuit nomination may face problems; N.C. judge Boyle faces questions of conflict; Luttig muddies plans": This article appeared yesterday in The Richmond Times-Dispatch.
Posted at 11:14 AM by Howard Bashman


"Fill the court vacancies": The Washington Times today contains an editorial that begins, "The recent decision by 4th Circuit U.S. Court of Appeals Judge J. Michael Luttig to resign will create yet another vacancy on the appellate bench. Even before Judge Luttig announced his decision last week, the White House and the Senate had been moving at a snail's pace filling these empty slots, which now account for more than 10 percent of all circuit court judgeships. Considering the high stakes, this laggard pace is incomprehensible."
Posted at 11:05 AM by Howard Bashman


Saturday, May 13, 2006

"Justice charged with violations; Judicial panel serves notice on Nuss in flap over lunch talk": This article appears today in The Topeka Capital-Journal, along with an article headlined "Judges have been taken to woodshed, removed in past."

The Wichita Eagle today contains an article headlined "Investigator: Justice violated ethics rules."

And The Lawrence Journal-World contains articles headlined "Justice faces ethics probe; Meeting with senators could result in court disciplining judge" and "Lawrence lawyer brought complaint against judge."
Posted at 11:10 PM by Howard Bashman



On last Saturday's broadcast of C-SPAN's "America & the Courts": "The Second Circuit Court of Appeals hears oral arguments in Brendan MacWade v. Raymond Kelly in New York City. The court decides if New York City police can randomly search subway riders' bags or if the searches violate a constitutional right against unreasonable search and seizure." You can view the program by clicking here (RealPlayer required).
Posted at 08:50 PM by Howard Bashman


"High Court Faces Deadlines on Big Cases": Gina Holland of The Associated Press provides this report.
Posted at 08:40 PM by Howard Bashman


"Court Asks if Residency Follows Inmates Up the River": This article appears today in The New York Times.
Posted at 02:18 PM by Howard Bashman


"Death case appeals hit by forgery allegations; Defense investigator may have faked many sworn statements": Claire Cooper, legal affairs writer for The Sacramento Bee, today has this article in that newspaper.
Posted at 02:15 PM by Howard Bashman


"Senate targets local FBI agents; Judiciary panel opens probe into possible perjury related to Luna case": The Baltimore Sun today contains an article that begins, "The U.S. Senate Judiciary Committee has opened a probe into whether FBI agents in Baltimore committed perjury during the investigation into the mysterious death of federal prosecutor Jonathan P. Luna in 2003."
Posted at 12:50 PM by Howard Bashman


"Lewinsky Case's Prosecutor Accused Of Stalking Woman": This article appears today in The Washington Post.

And yesterday, The New York Times reported that "Ex-Prosecutor Is Accused of Stalking."
Posted at 12:48 PM by Howard Bashman



"U.S., Citing State Secrets, Challenges Detainee Suit": Neil A. Lewis has this article today in The New York Times.

And The Washington Post reports today that "Secrecy Privilege Invoked in Fighting Ex-Detainee's Lawsuit."
Posted at 12:45 PM by Howard Bashman



"Legal Saga Ends for Man Who Hired Wife's Killer": The New York Times today contains an article that begins, "Bringing an end to a legal odyssey that spanned two decades, a New Jersey prosecutor on Friday said that he would no longer pursue the death penalty for Robert O. Marshall, whose conviction for arranging the murder of his wife inspired a best-selling book and a television miniseries."

And The Newark Star-Ledger reports today that "Prosecutor won't retry penalty phase of Marshall case; Plotter of wife's killing could be paroled in 8 years."
Posted at 12:23 PM by Howard Bashman



"Moussaoui Begins Serving Life Sentence": The Associated Press provides a report that begins, "Convicted Sept. 11 conspirator Zacarias Moussaoui on Saturday began serving his life sentence at the nation's most secure prison after U.S. marshals flew him overnight from Virginia to Colorado."
Posted at 12:15 PM by Howard Bashman


Friday, May 12, 2006

Available online from law.com: An article reports that "State Officials Appeal to Fla. Supreme Court on Attorney Fee Caps."

And the brand new installment of my "On Appeal" column is headlined "Exaggerations Plague Debate Over Need for Judicial Inspector General."
Posted at 10:55 PM by Howard Bashman



"126 MPH Jaunt Leads to Jail; Man Gets 12 Days for Sprint on GW Parkway": The Washington Post today contains an article that begins, "A Georgetown University law student who was trying to impress his girlfriend admitted yesterday that he cranked up his new Infiniti to 126 mph on the George Washington Memorial Parkway -- among the highest speeds ever clocked on the stretch of federal road." The article's final paragraph states that "The conviction should not affect [the law student's] eligibility to be a lawyer."
Posted at 10:50 PM by Howard Bashman


"Justice Sandy: Five simple rules for discussing judicial independence." Dahlia Lithwick has this jurisprudence essay online at Slate.
Posted at 10:40 PM by Howard Bashman


A racially derogatory comment made by a co-worker in the immediate aftermath of the arrest of the DC-area snipers does not equate to a racially-hostile work environment: A divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued this decision today.
Posted at 05:12 PM by Howard Bashman


"Moussaoui Appeals Judgment and Sentence": The Associated Press provides this report. You can view the notice of appeal at this link.
Posted at 04:55 PM by Howard Bashman


"Federal judge freezes Saudi's war-crimes trial": The Miami Herald provides a news update that begins, "A federal judge this morning ordered the Pentagon to freeze a Saudi captive's war-crimes trial at Guantanamo Bay Navy Base, Cuba -- until the U.S. Supreme Court decides whether President Bush's Military Commissions are constitutional." You can access today's ruling of the U.S. District Court for the District of Columbia at this link.
Posted at 04:54 PM by Howard Bashman


"Court Considers Wealth As Asylum Claim": The AP provides a report that begins, "A federal appeals court has ordered an immigration board to consider whether some Guatemalans could qualify for asylum over fear of persecution for being rich." You can access Tuesday's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 01:54 PM by Howard Bashman


The Associated Press is reporting: Now available online are articles headlined "Kan. Justice Accused of Improper Talks" and "U.S. Argues to Block Suit Against CIA."
Posted at 01:50 PM by Howard Bashman


"Are Federal Judges' Salaries too Low?" Ilya Somin has this post at "The Volokh Conspiracy."

Update: Also available now is a follow-up post titled "Judicial Pay Part II - The Non-Salary Benefits of Being a Federal Judge."
Posted at 01:40 PM by Howard Bashman



In today's mail: My advance reader's edition of "Anonymous Lawyer: A Novel."

Thanks to everyone who submitted contest ideas for awarding another copy of the book to a "How Appealing" contest entrant. We have a winner in contest for the best contest idea, and that person has just received an email from me. Next Monday morning, I will launch the contest itself using the contest proposal that was my favorite from among those proposals that various readers of this blog submitted in response to this earlier post.
Posted at 11:45 AM by Howard Bashman



"Government Seeks Court's Dismissal of Abduction Case": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition."

NPR's summary of the audio report states: "A federal court hears a government motion to dismiss a suit brought by a German citizen who alleges he was abducted in Europe. The man says he was handed over to U.S. agents, beaten and then transferred to a secret prison in Afghanistan. He was released without explanation five months later. The CIA says evidence in the case is protected by the state secrets privilege and can't be brought to trial."
Posted at 10:04 AM by Howard Bashman



"President's aid sought in battle to save cross; Hunter wants the site declared national park": The San Diego Union-Tribune today contains an article that begins, "In a last-gasp attempt to prevent the removal of the giant cross atop Mount Soledad, Rep. Duncan Hunter is appealing to President Bush to use his eminent-domain powers to declare the land beneath the cross a national park." The newspaper has also posted online two related letters to President Bush, here and here.

And The Associated Press reports that "Bush Asked to Help Save San Diego Cross."
Posted at 09:58 AM by Howard Bashman



"Survivor calls being shot 'worst fear come true'; Victim of sniper outside Va. restaurant testifies in Muhammad trial": This article appears today in The Baltimore Sun.

And The Washington Post today contains an article headlined "'Oh My God, I've Been Shot'; Victim Tells Muhammad Jury About Attack Near Va. Steakhouse."
Posted at 07:30 AM by Howard Bashman



"Diaz gets clearance to regain court seat; Tribunal orders termination of justice's suspension": The Clarion-Ledger of Jackson, Mississippi today contains an article that begins, "State Supreme Court Justice Oliver Diaz Jr., who has weathered two criminal trials and more than two years of suspension, was cleared Thursday to take the bench again."
Posted at 07:28 AM by Howard Bashman


"Senate Democrats want new hearing for Boyle": This news brief appears today in The News & Observer of Raleigh, North Carolina.
Posted at 07:20 AM by Howard Bashman


"Condemned inmate asked staff to end his life": From Ohio, The Associated Press provides a report that begins, "Apparently weary of painful attempts to insert an intravenous line, a condemned killer asked prison staff to finish the job. 'Can you just give me something by mouth to end this?' Joseph Clark asked members of the execution team May 2 as they struggled to deliver a lethal injection."
Posted at 07:15 AM by Howard Bashman


"Democrats signal filibuster on Bush judicial nominee": The Washington Times today contains an article that begins, "Democrats on the Senate Judiciary Committee yesterday unanimously opposed President Bush's most recent judicial nominee, signaling they intend to try filibustering his nomination."
Posted at 07:12 AM by Howard Bashman


"House Injects Prayer Into Defense Bill": The Washington Post contains this article today.
Posted at 07:04 AM by Howard Bashman


"One Juror Between Terrorist And Death; Moussaoui Foreman Recalls Frustration": This front page article appears today in The Washington Post.

And the newspaper also contains an op-ed by columnist Charles Krauthammer entitled "Sparing Moussaoui for the Wrong Reasons."
Posted at 07:00 AM by Howard Bashman



"Court to Rule on Delaware Public Records Law": The New York Times today contains an article that begins, "A panel of federal appeals court judges will rule on the constitutionality of Delaware's Freedom of Information Act, which denies nonresidents access to public records in the state, the legal home of many major corporations."

And The News Journal of Wilmington, Delaware reports today that "FOIA filing only puzzles U.S. judges; State law refuses queries from non-Delawareans."
Posted at 06:54 AM by Howard Bashman



"Five justices to watch as the Roberts court evolves; New chief shows he'll be forceful presence on bench": Joan Biskupic has this article today in USA Today.
Posted at 06:50 AM by Howard Bashman


Thursday, May 11, 2006

"Will Defense Lawyers Accept Help on High Court Criminal Cases?" Tony Mauro has this quite interesting article online at law.com.
Posted at 11:22 PM by Howard Bashman


U.S. Senate schedules confirmation vote for Ninth Circuit nominee Milan D. Smith, Jr. for Tuesday, May 16, 2006: Details here.
Posted at 10:14 PM by Howard Bashman


"John Roberts: The Missing Years; Did the White House steal a document from the Reagan library?" Timothy Noah has this item online at Slate this evening.
Posted at 10:10 PM by Howard Bashman


Fifth Circuit holds that Uniformed Services Employment and Reemployment Rights Act, which protects the employment rights of members of the armed forces, does not preclude the enforcement of an individual contract to arbitrate such disputes: You can access today's ruling of a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, written by Chief Judge Edith H. Jones, at this link.
Posted at 08:48 PM by Howard Bashman


"Ex-Justice Sidesteps Phone Data Questions": Gina Holland of The Associated Press provides a report that begins, "Former Supreme Court Justice Sandra Day O'Connor declined to step into the uproar over secret collection of Americans' phone records, saying a close look at the facts by courts could determine whether the government acted properly."
Posted at 05:50 PM by Howard Bashman


"Boyle nomination/Salon.com allegations": A group of former law clerks to Fourth Circuit nominee Terrence W. Boyle is circulating this document.
Posted at 05:04 PM by Howard Bashman


U.S. District Court for the District of Columbia orders that two Chinese Uighur detainees held by the United States government at the Guantanamo Bay Naval Station be allowed to meet with their lawyers as soon as possible: Apparently not all ethnic Uighur Chinese nationals detained at Guantanamo were recently sent to Albania, this ruling issued today by a U.S. Magistrate Judge would seem to suggest.
Posted at 04:45 PM by Howard Bashman


"New Trial Ordered in Human-Smuggling Case": The Associated Press provides this report. Additional coverage appears here and here.
Posted at 04:40 PM by Howard Bashman


"DNA Fingerprinting Criminals' Kin Could Solve Crimes; Report Raises Complex Civil Liberties Issues": The Washington Post provides this news update.
Posted at 04:30 PM by Howard Bashman


"The Battle Over the Soul of Law Professor Blogs": The text of my "Upon Further Review" column published this Monday in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, can be accessed here. Therein, I propose what is destined to become the most popular entrant in the Law Professor Blogs Network -- a law professor blog devoted to the law of sex and pornography.
Posted at 03:33 PM by Howard Bashman


Divided three-judge Fifth Circuit panel rejects First Amendment challenge to provisions of Louisiana's Campaign Finance Disclosure Act: You can access today's ruling of the U.S. Court of Appeals for the Fifth Circuit at this link.
Posted at 02:54 PM by Howard Bashman


"Senate panel clears way for White House court pick": Reuters provides this report.
Posted at 02:18 PM by Howard Bashman


"Ex-Newspaper Owners Seek to Revive Suit": The Associated Press provides a report that begins, "A lawyer for the former owners of the Salt Lake Tribune asked a federal appeals court Thursday to revive their lawsuit challenging the $355.5 million price set for them to buy the paper back."
Posted at 02:14 PM by Howard Bashman


"'Gang of 14' seeks more scrutiny of court nominee Boyle": This article appears today in The Denver Post.
Posted at 01:04 PM by Howard Bashman


"Kavanaugh Nomination Headed to Senate Vote": The Associated Press provides this updated report.
Posted at 12:54 PM by Howard Bashman


"GOP using court nominee to revitalize conservatives": Yesterday's issue of Newsday contained this article.
Posted at 12:30 PM by Howard Bashman


Senate Judiciary Committee recommends Brett M. Kavanaugh for confirmation to the U.S. Court of Appeals for the D.C. Circuit by 10-8 party-line vote: According to sources that you can access here and here.
Posted at 12:04 PM by Howard Bashman


Who was the last federal appellate court nominee to receive a unanimous "Not Qualified" rating from the American Bar Association? Today in The Washington Post, Charles Lane reports that "The last nominee to be rejected unanimously by the ABA was Sherman Unger, who was nominated by President Ronald Reagan to the U.S. Court of Appeals for the Federal Circuit in 1982. His nomination was later withdrawn."

Some quick research on the internet suggests that Unger died of cancer not long after being nominated to the bench (see here and here [final paragraph]), and thus it is unclear whether his nomination was withdrawn due to the unfavorable ABA rating or due to the requirement that judicial nominees must be among the living in order to be confirmed.
Posted at 12:00 PM by Howard Bashman



"Top Court Off Hook; FOI Commission Won't Seek Review Of Controversial Ruling": Today in The Hartford Courant, Lynne Tuohy has an article that begins, "The Freedom of Information Commission Wednesday voted 3-2 against asking the state Supreme Court to reconsider the controversial ruling that former Chief Justice William J. Sullivan secretly withheld from release to benefit his presumed successor."
Posted at 10:38 AM by Howard Bashman


"Short Circuit -- Breakdown of Trust Led Judge Luttig To Clash With Bush; After Fight in Terrorism Case, Conservative Star Gives Up Court Seat for Boeing Job; New Task: Appease McCain." Jess Bravin and J. Lynn Lunsford have this must-read front page article (pass-through link) today in The Wall Street Journal.

That newspaper today also contains an editorial entitled "Luttig's Legacy" (pass-through link).
Posted at 10:05 AM by Howard Bashman



"Federal Judge Abandons Bench for Boeing": On yesterday evening's broadcast of NPR's "All Things Considered," Nina Totenberg had this audio report (RealPlayer required).
Posted at 09:50 AM by Howard Bashman


"Reid prepares for next battle on judicial nominees; Two of president's selections draw criticism": This article appears today in The Las Vegas Review-Journal.

And The Tennessean today contains an editorial entitled "Congress must avoid another judicial battle; Rhetoric about federal judicial confirmations does not bode well for the process."
Posted at 09:45 AM by Howard Bashman



"Kavanaugh Nomination Headed to Senate Vote": The Associated Press provides this report.

You can access the agenda of today's executive business meeting of the Senate Judiciary Committee at this link.
Posted at 07:28 AM by Howard Bashman



"Luttig quits 4th Circuit bench; Considered a possible Supreme Court choice, he'll take key Boeing job": This article appears today in The Times-Dispatch of Richmond, Virginia.

And today in The Chicago Tribune, Ameet Sachdev and Jan Crawford Greenburg report that "Appellate judge joins Boeing as top lawyer."
Posted at 07:25 AM by Howard Bashman



"Va. officer is questioned by Muhammad at trial": The Baltimore Sun contains this article today.

And The Washington Post today reports that "Rush to Assist Youngest Shooting Victim Recalled."
Posted at 07:22 AM by Howard Bashman



"Judge in Enron Case Delivers a Serious Blow to the 2 Defendants": This article appears today in The New York Times.

The Washington Post reports today that "Judge Lets Enron Jurors Consider If Defendants Turned a Blind Eye."

In The Houston Chronicle, Mary Flood reports that "Judge ready for the final act; Jury will be told to weigh whether Skilling and Lay were 'deliberately ignorant.'"

And USA Today reports that "For Lay and Skilling, day of judgment near; After 55 witnesses, closing arguments begin Monday."
Posted at 07:20 AM by Howard Bashman



"Truck driver faces new trial in 2003 smuggling deaths; Appeals court removes Houston judge from case": Harvey Rice has this article today in The Houston Chronicle. My earlier coverage is here.
Posted at 07:18 AM by Howard Bashman


"British Attorney General Says Guantanamo 'Should Close'": The Washington Post contains this article today.
Posted at 07:15 AM by Howard Bashman


"L.A. Psychologist Who Didn't Get Tote Bag at Mother's Day Angel Game Files Lawsuit": This article appears today in The Los Angeles Times.
Posted at 07:12 AM by Howard Bashman


"The Case of Roberts's Missing Papers; Investigators Are Still Unable to Locate File On Affirmative Action": The Washington Post contains this article today.
Posted at 07:00 AM by Howard Bashman


"ABA: Wallace unqualified for seat on federal bench; White House continues to support Jackson lawyer for Court of Appeals post." This article appears today in The Clarion-Ledger of Jackson, Mississippi.

Charles Lane of The Washington Post reports today that "Nominee Rated 'Unqualified' By ABA Panel."

And The New York Times reports that "Judicial Nominee Rated Unqualified."
Posted at 06:44 AM by Howard Bashman



"What Kind of Justice Will Samuel Alito Be? A Recent Death Penalty Decision Provides Some Insights." Edward Lazarus has this essay today online at FindLaw.
Posted at 06:40 AM by Howard Bashman


Wednesday, May 10, 2006

Further evidence that Scalia-Alito is the new O'Connor-Ginsburg: A reader emails to point out the following passage from tomorrow's article headlined "Appeals Court Judge Leaves Life Appointment for Boeing" in The Washington Post:
But the friends added that Luttig's disappointment over the nominations of Roberts and Scalia, combined with uncertainty over when another Supreme Court vacancy would occur, also played a role.
My earlier post in the "Scalia-Alito is the new O'Connor-Ginsburg" series can be accessed here.
Posted at 11:55 PM by Howard Bashman


"Gang balks on Judge Boyle": The Hill on Thursday will contain an article that begins, "The outlook for Judge Terrence Boyle, nominated to the 4th U.S. Circuit Court of Appeals, became cloudier yesterday as Democrats reiterated opposition to him and some Republican members of the influential Gang of 14 declined to offer support."
Posted at 10:38 PM by Howard Bashman


Sale of future lottery payments for a lump sum did not represent a capital gain, U.S. Court of Appeals for the Tenth Circuit rules: Although the lottery winner lost today's ruling in a tax dispute involving the IRS, the story at least had a happy beginning:, "On May 1, 1993, Mr. Watkins won $12,358,688 from the Colorado State Lottery with a ticket he purchased for one dollar."
Posted at 10:35 PM by Howard Bashman


"Judge Leaves Appeals Court for Boeing": Neil A. Lewis will have this article Thursday in The New York Times.

And The Washington Post on Thursday will report that "Appeals Court Judge Leaves Life Appointment for Boeing."
Posted at 10:28 PM by Howard Bashman



Available online from law.com: Tony Mauro has an article headlined "Taken or Lost? Roberts File Still Missing in Action." The 64-page report of investigation by the inspector general for the National Archives and Records Administration can be accessed here.

Mauro also reports that "4th Circuit's Luttig Takes Off for Boeing GC Position."

In other news, an article is headlined "Going From General Counsel to Federal Inmate."

And an article reports that "Firms See Wave of Problems From Employee Web Surfing; Shopping, gambling, even looking for a new job ... your staff may be using the Internet for anything but work."
Posted at 10:20 PM by Howard Bashman



"Bush Nominee Rated 'Unqualified' by ABA": Gina Holland of The Associated Press provides this report.

And Bloomberg News reports that "Bush Judicial Nominee Rated 'Unqualified' By Lawyers."
Posted at 08:20 PM by Howard Bashman



"Enron Judge's Jury Instructions May Raise Odds of Convictions": This article (free access) appears today in The Wall Street Journal.
Posted at 08:14 PM by Howard Bashman


"Officials call UA's Rehnquist Center a fitting honor to late Chief Justice": The Arizona Daily Star provides this news update.
Posted at 08:00 PM by Howard Bashman


"Same-Sex Marriage Showdown": Gotham Gazette provides a report that begins, "It won't be in time for June weddings, but the New York State Court of Appeals, the state's highest court, will hear a group of cases on May 31 arguing that the state's refusal to let same-sex couples obtain marriage licenses violates the state constitution."
Posted at 07:54 PM by Howard Bashman


"Returning to this Court for the third time, this case arises out of an illegal alien smuggling conspiracy that caused the deaths of nineteen undocumented aliens secreted in the trailer of a tractor-trailer driven by defendant Tyrone Mapletoft Williams from Harlingen, Texas, to Victoria, Texas." In this decision issued today, a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit clears the way for a retrial of Tyrone Williams before a different U.S. District Judge of the Southern District of Texas.

Earlier this month, Harvey Rice of The Houston Chronicle had an article headlined "Smuggling leader gets 17-year term; She cries, seeks forgiveness for her role in the deaths of 19 in trailer." According to that article, "A trial date for [Tyrone Williams] will be set once a federal appeals court decides on how many of 58 smuggling charges he can be retried." Today's opinion represents that decision.
Posted at 07:35 PM by Howard Bashman



"200 years not 'cruel and unusual punishment' in child porn case": The Arizona Daily Star provides this news update reporting on a ruling that the Supreme Court of Arizona issued today.
Posted at 07:24 PM by Howard Bashman


"Lawyer calls BALCO leaks a moot issue; National security not involved and case is over, she says": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "Unlike a New York Times reporter who was jailed for refusing to disclose a confidential source, two Chronicle reporters who have been ordered to identify the source of leaked grand jury testimony aren't involved in a national security case. In fact, their lawyer says they're not involved in an ongoing case at all."
Posted at 06:05 PM by Howard Bashman


"Nomination Sent to the Senate: Neil M. Gorsuch, of Colorado, to be United States Circuit Judge for the Tenth Circuit, vice David M. Ebel, retired." The White House officially announced this judicial nomination today. My earlier coverage is here.

Update: The Associated Press reports that "Bush Nominates New Judge for 10th Circuit."
Posted at 05:02 PM by Howard Bashman



"Supreme Court 5-4 on Immigration Case": The Associated Press provides a report that begins, "The Supreme Court split 5-4 Wednesday to let the Bush administration deport a British man for breaking the law in Mississippi."

And Greg Stohr of Bloomberg News reports that "Alito, U.S. Supreme Court Permit Deportation of British Man."

Today's order of the U.S. Supreme Court can be accessed here.
Posted at 04:25 PM by Howard Bashman



"Negro Leagues players' payments upheld": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "Major League Baseball is entitled to pay former Negro Leagues players $10,000 a year and provide medical coverage as compensation for their exclusion from the big leagues, a federal appeals court ruled Tuesday, rejecting a reverse-discrimination suit from a group of white ex-players."

And Metropolitan News-Enterprise reports today that "Ninth Circuit Rejects Former Ballplayers' Suit Over Pensions."

My earlier coverage is here.
Posted at 04:05 PM by Howard Bashman



"Republicans eager for judicial fight; The Senate debate over federal appeals court nominee Brett Kavanaugh may fire up the GOP": Gail Russell Chaddock will have this article Thursday in The Christian Science Monitor.
Posted at 04:00 PM by Howard Bashman


"Witness question raised again; Prosecutors ask judge not to allow comments about issue of immunity": Mary Flood has this article today in The Houston Chronicle.
Posted at 03:32 PM by Howard Bashman


"Wallace is the first appeals court nominee in 25 years to receive a unanimous 'not qualified' rating from the ABA." So says a press release that People For the American Way issued this afternoon urging President Bush to withdraw the nomination. My earlier coverage is here.
Posted at 03:24 PM by Howard Bashman


Available today from National Review Online: U.S. Senator Lamar Alexander (R-TN) has an essay entitled "Hawaiian Upside-Down Cake: An island far from 'e pluribus unum.'"

And Adam J. White has an essay entitled "Unwarranted Criticism: General Hayden's reading of the Fourth Amendment is correct, and his critics are mistaken."
Posted at 03:05 PM by Howard Bashman



"[W]e join several sister courts of appeals in holding that the involvement of an actual minor, as distinguished from a government decoy, is not a prerequisite to conviction under 18 U.S.C. § 2422(b) (actual or attempted persuasion of a minor to engage in illicit sexual activity) or 18 U.S.C. § 2423(b) (traveling for the purpose of engaging in illicit sexual activity)." So begins a lengthy opinion that a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit issued today.
Posted at 03:02 PM by Howard Bashman


"The Gitmo 'decider': Bush need not defer to the Supreme Court to close down Guantanamo." The Los Angeles Times contains this editorial today.
Posted at 03:00 PM by Howard Bashman


"Judge: Del. can't execute killer yet; Case hinges on Supreme Court." This article appears today in The News Journal of Wilmington, Delaware.
Posted at 02:42 PM by Howard Bashman


"J. Michael Luttig Resigns From Appeals Court": The Washington Post provides this news update.

And The Associated Press reports that "Conservative Judge to Work for Boeing."
Posted at 02:38 PM by Howard Bashman



Today marks the debut of Andrew Cohen's blog "Bench Conference" for The Washington Post: You can access the blog at this link. Cohen currently serves as legal analyst for CBS News.
Posted at 02:25 PM by Howard Bashman


Fifth Circuit nominee Michael B. Wallace receives unanimous "Not Qualified" rating from American Bar Association judicial evaluation committee: The ranking, released today, can be viewed at this link. A unanimous "Not Qualified" rating for a federal appellate court nominee is, if memory serves, quite rare in recent years.

Wallace's law firm bio can be accessed here.
Posted at 02:10 PM by Howard Bashman



"Roberts File Still Missing": law.com's Tony Mauro provides a report that begins, "A potentially controversial file at the Reagan Presidential Library that went missing in the weeks before the confirmation hearings for John Roberts Jr. as chief justice last year has still not been found, according to an internal investigation made public Tuesday."
Posted at 02:08 PM by Howard Bashman


"Bush to nominate Gorsuch to Denver appeals court": This article appears today in The Rocky Mountain News.

And The Denver Post reports today that "Gorsuch is pick for U.S. appeals court; The Denver-born lawyer, who's long worked in D.C., holds strong views on the proper role of judges."
Posted at 12:10 PM by Howard Bashman



"Luttig Steps Down From 4th Circuit": law.com's Tony Mauro provides this news update.
Posted at 11:55 AM by Howard Bashman


"Supreme Court Is Better Heard Than Seen": Jerry Goldman, the director of the Oyez project, has this letter to the editor (free access) today in The Wall Street Journal. Although I have no connection to the Oyez site, I agree with Goldman that prompt release by the U.S. Supreme Court of oral argument audiotapes would suffice in lieu of televised coverage of oral arguments.
Posted at 11:54 AM by Howard Bashman


"Federal Appeals Court Judge Luttig Tapped for Boeing General Counsel": Jess Bravin of The Wall Street Journal provides this news update (free access). My earlier coverage appears at this link.
Posted at 11:45 AM by Howard Bashman


"Sex Toys Tax-Deductible Down Under": You may not be able to lawfully purchase them in Alabama, but -- according to this post at "TaxProf Blog" -- you might be able to claim a tax deduction for them in Australia if you happen to be employed in the right line of work.
Posted at 11:44 AM by Howard Bashman


"What the Moussaoui Sentence Teaches About 'Mitigating' Evidence": FindLaw commentator Michael C. Dorf has this essay today.
Posted at 11:40 AM by Howard Bashman


Thirteen former law clerks to Fourth Circuit nominee Terrence W. Boyle issue a letter denouncing "shamefully personal" attacks against him: I have uploaded a copy of the letter at this link.
Posted at 11:35 AM by Howard Bashman


"Continuing Rehnquist's Legacy; Former Aide to Direct Think Tank Named After Chief Justice": This article appears today in The Washington Post.
Posted at 11:25 AM by Howard Bashman


"Bench Nominee Denies Role in Controversies; White House lawyer tells senators he learned about Abramoff, other issues from newspapers": David G. Savage has this article today in The Los Angeles Times.

The Washington Times reports today that "Judicial nominee takes heat."

And in The Washington Post, Dana Milbank's Washington Sketch column today is headlined "Fealty to President and Precedent."
Posted at 11:20 AM by Howard Bashman



BREAKING NEWS -- Fourth Circuit Judge J. Michael Luttig resigns to become senior vice president and general counsel of The Boeing Company: Details are available in this press release, while a copy of Judge Luttig's letter announcing his resignation, effective immediately, from the Fourth Circuit can be viewed both here and here. Thanks to "South Carolina Appellate Law Blog" for giving me the initial heads-up on this news.

And Jan Crawford Greenburg of The Chicago Tribune provides a news update headlined "Passed over Supreme Court hopeful resigns from bench."
Posted at 11:10 AM by Howard Bashman



Tuesday, May 09, 2006

"Senators Renew Jousting Over Court Pick": Neil A. Lewis will have this article Wednesday in The New York Times.
Posted at 10:45 PM by Howard Bashman


"New 'Anti-Abortion Pill' Kills Mother, Leaves Fetus Alive": This article will appear in tomorrow's issue of The Onion.
Posted at 10:44 PM by Howard Bashman


"Ax murderer's execution postponed; Case is part of a national movement to stop lethal injections by raising civil rights claims about the way states carry them out": The News Journal of Wilmington, Delaware provides this news update.
Posted at 10:25 PM by Howard Bashman


"Court Pick Deflects Questions On White House Controversies": This article will appear Wednesday in The Washington Post.
Posted at 10:24 PM by Howard Bashman


Three recent law clerks to Fourth Circuit nominee Terrence W. Boyle condemn recent attacks on his nomination as "baseless": A letter that those former law clerks sent today to various U.S. Senators can be accessed at this link.
Posted at 10:20 PM by Howard Bashman


"California Town Uses Eminent Domain To Block Wal-Mart": Josh Gerstein has this article (pass-through link) today in The New York Sun.
Posted at 10:15 PM by Howard Bashman


"Filibuster more likely for Boyle": Wednesday's edition of The Hill will contain an article that begins, "Republican senators are welcoming the impending return of judicial nominations to the Senate floor as D.C. Circuit Court of Appeals nominee Brett Kavanaugh moves toward consideration and the White House readies a new list of judges to send to Capitol Hill."

And Reuters reports that "Court nominee says didn't know of torture, spying."
Posted at 08:55 PM by Howard Bashman



"I do not Think it Means what you Think it Means: How Kripke and Wittgenstein's Analysis on Rule Following Undermines Justice Scalia's Textualism and Originalism." Daniel Goldberg has this article (abstract with links for download) online at SSRN (via "Legal Theory Blog").
Posted at 08:54 PM by Howard Bashman


Don't mess with "Texas" [on your car's license plate]: According to an opinion that the U.S. Court of Appeals for the Fifth Circuit issued today, "During the suppression hearing, the officers testified that they stopped the defendant because the word 'TEXAS' was partially covered by the license plate frame." According to today's ruling, that gave Texas police officers probable cause to stop the criminal defendant's vehicle.
Posted at 08:18 PM by Howard Bashman


"'Gang of 14' to meet again as Senate weighs 2 judicial nominees": James Kuhnhenn of Knight Ridder Newspapers provides this report.
Posted at 08:00 PM by Howard Bashman


"Senators spar over judicial nominee; Kavanaugh denies involvement in wiretapping, detainee policies": CNN.com provides this report.

The Washington Post provides a news update headlined "Judicial Nominee Appears at Contentious Second Hearing."

And T.R. Goldman of Legal Times reports that "Kavanaugh Comes Before Senate Judiciary Again; Democrats get their wish for another hearing on nominee to the U.S. Court of Appeals for the D.C. Circuit" (free access).

Via C-SPAN, you can view this afternoon's judicial confirmation hearing online, on-demand by clicking here (RealPlayer required).
Posted at 07:28 PM by Howard Bashman



"Slate's Jurisprudence: 'War on Terror' Surprises." This audio segment (RealPlayer required) featuring Dahlia Lithwick appeared on today's broadcast of NPR's "Day to Day."
Posted at 05:50 PM by Howard Bashman


This afternoon's Senate Judiciary Committee confirmation hearing for D.C. Circuit nominee Brett M. Kavanaugh has recently concluded: Toward the end of the hearing, C-SPAN3 ended its coverage because the main C-SPAN network had begun televising the hearing after the House of Representatives recessed for the day. Once C-SPAN posts online archived video of today's hearing, I will link to it.

The committee remains scheduled to vote on the nomination at the committee's executive business meeting this Thursday.
Posted at 05:44 PM by Howard Bashman



"This appeal concerns the scope of copyright protection afforded artistic concert posters reproduced in reduced size in a biography of the musical group the Grateful Dead." Today, a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit holds, in an opinion that you can access here, that the reproductions constituted fair use.

William Patry, whose blog on copyright law you can access at this link, was counsel for the party asserting copyright infringement on appeal.
Posted at 05:00 PM by Howard Bashman



"Kavanaugh Denies Role in Detainee Policies": The Associated Press provides this report.
Posted at 04:55 PM by Howard Bashman


Access online yesterday's written statement of the Standing Committee on Federal Judiciary of the American Bar Association concerning the Nomination of Brett M. Kavanaugh to the D.C. Circuit: The statement (a 10-page PDF document) can be accessed here (via "Think Progress").
Posted at 03:15 PM by Howard Bashman


"How can an insane man defend himself?" On February 15, 2004, Jessica McBride had this op-ed in The Milwaukee Journal Sentinel about Texas death row inmate Scott Louis Panetti.

Today, a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued a decision affirming a federal district court's denial of Panetti's habeas petition in which the condemned prisoner asserts that he is mentally incompetent to be executed.
Posted at 03:04 PM by Howard Bashman



On remand from the U.S. Supreme Court, the U.S. Court of Appeals for the Third Circuit affirms the district court's order denying a preliminary injunction in FAIR v. Rumsfeld: Today's non-precedential affirmance can be accessed at this link. The U.S. Supreme Court's ruling in the case is here. Senior Circuit Judge Ruggero J. Aldisert, the lone dissenter from the three-judge Third Circuit panel's ruling that the U.S. Supreme Court reversed, entered today's order for a unanimous panel.
Posted at 02:55 PM by Howard Bashman


"Cannibal Convicted of Murder in Retrial": The Associated Press provides a report that begins, "A man who admitted killing and eating an acquaintance he met on the Internet was convicted of murder and sentenced to life in prison Tuesday following his retrial in a case that engrossed and appalled Germany."

And BBC News reports that "German cannibal guilty of murder."
Posted at 02:30 PM by Howard Bashman



View live, online this afternoon's Senate Judiciary Committee hearing for D.C. Circuit nominee Brett M. Kavanaugh: The first panel to testify consists of Senior Third Circuit Judge Walter K. Stapleton and Ninth Circuit Judge Alex Kozinski. Kavanaugh clerked for both before going on to clerk for Justice Anthony M. Kennedy. Kavanaugh will then testify before the committee. The agenda is here.

C-SPAN3 is carrying the hearing live, and you can view the hearing live, online in both RealPlayer and Windows Media Player formats.

Update: Senator Charles E. Schumer (D-NY), in his opening statement, is comparing Kavanaugh's experience to the experience of others who have been confirmed to the D.C. Circuit. The Alliance for Justice has issued a document titled "The Kavanaugh Nomination: Nominee's Experience Far Below Court Average" that begins, "Of the fifty-four judges who have served on the U.S. Court of Appeals for D.C. Circuit since its creation almost 111 years ago in 1893, only three have had less experience than Brett Kavanaugh: Kenneth Starr, Theodore Roosevelt appointee Charles Henry Robb and Reagan appointee Douglas Ginsburg."
Posted at 02:00 PM by Howard Bashman



"We hold that appellants have failed to establish a prima facie case of discrimination, given that the enactment of the Negro League Plans did not constitute an adverse employment action and given that the two groups of players are not similarly situated." Major League Baseball today achieved a victory in the U.S. Court of Appeals for the Ninth Circuit in a class action brought by mostly Caucasian former MLB players who were asserting not only a claim under Title VII, but also claims for battery "by subjecting them to a dangerous regimen of cortisone shots and other drugs without their informed consent."
Posted at 12:48 PM by Howard Bashman


Know your Supreme Court: The error in a recent Ninth Circuit decision that Eugene Volokh pointed out yesterday in this post at "The Volokh Conspiracy" (and later linked here by me) has today been eradicated from the annals of the law thanks to an order amending opinion that the U.S. Court of Appeals for the Ninth Circuit has issued.
Posted at 12:40 PM by Howard Bashman


District court erred in holding that federal prosecutors engaged in unlawful vindictive prosecution when obtaining convictions for money laundering and illegally structuring financial transactions against an aggressive and successful criminal defense attorney from northern Indiana: You can access today's ruling of the U.S. Court of Appeals for the Seventh Circuit, written by Circuit Judge Terence T. Evans on behalf of a unanimous three-judge panel, at this link.
Posted at 12:30 PM by Howard Bashman


Two quick updates: (1) Thanks to all the readers who have emailed contest ideas for determining which reader of "How Appealing" will obtain an advance reading copy of the book "Anonymous Lawyer: A Novel." I'm setting a deadline for contest ideas of 5 p.m. eastern time today, and ideas can be emailed to me at this blog's email address, which is appellateblog@hotmail.com. Complete details appear in this post from yesterday. The "How Appealing" reader who proposes the contest that I end up using will himself or herself also receive an advance reading copy of the book. All determinations of the contests' judge (namely, me) are final.

(2) In connection with this blog's popular "20 questions for the appellate judge" feature, scheduled to resume in June 2006, I am continuing to seek an interviewee. As during the feature's initial 20-month run, interviewees are being sought on a purely volunteer basis, and the first federal or state court appellate judge to volunteer as the June 2006 interviewee will become the participant in next month's interview. To volunteer, an appellate judge (or his or her authorized designee) merely needs to send me an email at this blog's email address, appellateblog@hotmail.com. Once someone has volunteered as next month's interviewee, I will announce that the June 2006 "20 questions for the appellate judge" interview slot has been filled.
Posted at 12:10 PM by Howard Bashman



Law professor achieves at least the 35th best paper in UCLA Law Review write-on competition: Law Professor Eugene Volokh explains all in a post at "The Volokh Conspiracy" titled "What I Did This Spring Vacation." Next year, perhaps he will retake the LSAT exam.
Posted at 11:50 AM by Howard Bashman


"Research Center to Be Named for Rehnquist": The Associated Press provides this report.
Posted at 10:48 AM by Howard Bashman


"Area judge ranked 4th in free trips; Group lists Jones among the circuit jurists going on the most junkets paid by conservatives": Today in The Houston Chronicle, Harvey Rice has an article that begins, "Chief Judge Edith Jones of the 5th U.S. Circuit Court of Appeals ranks fourth on a list of judges who accept free trips sponsored by conservative interest groups and corporations, according to a report by an environmental law group."
Posted at 10:05 AM by Howard Bashman


In news from Connecticut: Today in The Hartford Courant, Lynne Tuohy reports that "Rell To Form Panel On Court Access."

And The Associated Press reports that "Rell defends federal judge recommendation, predicts confirmation."
Posted at 09:24 AM by Howard Bashman



Available online from National Public Radio: Today's broadcast of "Morning Edition" contained a segment entitled "Moussaoui Asks for New Trial."

And yesterday evening's broadcast of "All Things Considered" contained a segment entitled "Indian Tribe May Open Abortion Clinic on Its Land."

RealPlayer is required to launch these audio segments.
Posted at 09:15 AM by Howard Bashman



"The Kavanaugh hearing": This editorial appears today in The Washington Times.
Posted at 09:10 AM by Howard Bashman


"Enron verdict hinges on Lay, Skilling testimony, experts say": Mary Flood has this article today in The Houston Chronicle. And the newspaper also contains an article headlined "Lay, Skilling say they 'feel good'; Final testimonies give 2 contrasting views of company's former chairman."

The Wall Street Journal reports today that "Enron Trial to Start Its Final Chapter; Defense and Prosecution Rest Without Calling New Experts; Closing to Start Next Week" (free access).

The New York Times contains an article headlined "What Remains Unanswered at Enron Trial."

And The Washington Post reports that "After Six Weeks, Defense Rests In Enron Trial; Verdict Could Turn on Defendants' Words."
Posted at 07:25 AM by Howard Bashman



"Court hears killer's appeal; Lawyers seek access to Balto. County files to explore racial bias": The Baltimore Sun contains this article today.

And The Washington Post reports today that "Injection Illegal, Attorneys Argue; Lawyers Also Say Bias Taints Decision to Seek Death Penalty."
Posted at 07:20 AM by Howard Bashman



"Sniper prosecution continues; Muhammad cross-examines witnesses to fatal shooting at Mobil station": This article appears today in The Baltimore Sun.

And in The Washington Post, columnist Marc Fisher has an op-ed entitled "Too Much Pain, Not Much Point in Sniper Trial."
Posted at 07:18 AM by Howard Bashman



"Moussaoui's Move to Recant Guilty Plea Is Denied": Neil A. Lewis has this article today in The New York Times.

The Washington Post reports today that "Moussaoui Fails in Bid to Withdraw 9/11 Guilty Plea."

The Los Angeles Times reports that "Judge Denies Bid by Moussaoui to Withdraw Guilty Plea; The convicted Al Qaeda operative says he was surprised to have gotten a fair trial and now contends he was not involved in the 9/11 plot."

And The Washington Times reports that "Moussaoui asks judge to withdraw guilty plea."
Posted at 07:15 AM by Howard Bashman



"Senate Rejects Award Limits in Malpractice": This article appears today in The New York Times.

And The Los Angeles Times reports today that "Senate Defeats Effort to Limit Medical Malpractice Awards; The measures, which had been a priority for Bush, would have limited damages for pain and suffering to $250,000 in most cases."
Posted at 07:10 AM by Howard Bashman



"U.S. Subpoenas Newspaper for Sources in Steroid Case": Adam Liptak has this article today in The New York Times.
Posted at 07:02 AM by Howard Bashman


"Bar Panel Downgrades Bush Nominee for Judiciary": Neil A. Lewis has this article today in The New York Times.

The Washington Post reports today that "Senators to Renew Debate on Court Nominee; Democrats Prepare Familiar Argument." And a related editorial is entitled "A Tale of Two Judges: New skirmishes in the judicial nomination wars are brewing. But their merits aren't the same." The editorial asserts that "The Senate should confirm Mr. Kavanaugh but not Judge Boyle."

In The Los Angeles Times, David G. Savage reports that "Starr Aide's Nomination Divisive."

And The Washington Times reports that "GOP rips lowering of nominee's ABA rating."
Posted at 06:54 AM by Howard Bashman



Monday, May 08, 2006

"Senators further scrutinize court nominee": In Tuesday's edition of USA Today, Joan Biskupic will have an article that begins, "The Senate Judiciary Committee will hold a rare second hearing for judicial nominee Brett Kavanaugh today, spurred by Democrats who have focused on the power of the court he would join and his background."
Posted at 11:34 PM by Howard Bashman


"Rove prepares 20 judges": Tuesday's edition of The Hill will contain an article that begins, "Presidential adviser Karl Rove and White House counsel Harriet Miers yesterday told conservative activists and Senate staff that the administration would soon send the names of more than 20 judicial nominees to Capitol Hill for confirmation."
Posted at 10:20 PM by Howard Bashman


"The Best Little Courthouse in Texas; Upset by patent rulings, tech companies push Congress for venue reform": law.com provides this report.
Posted at 10:15 PM by Howard Bashman


"ABA Downgrades White House Aide's Rating": The Associated Press provides a report that begins, "The American Bar Association downgraded its rating of President Bush's appellate court nominee Brett Kavanaugh after new interviews raised concerns about his courtroom experience and open-mindedness, the chairman of the peer-review panel said Monday."

Relatedly, the White House today issued news releases entitled "Setting the Record Straight: The ABA Finds Brett Kavanaugh Is 'Indeed Qualified to Serve on the Federal Bench'" and "Fact Sheet: Brett M. Kavanaugh: Nominee to the U.S. Court of Appeals for the D.C. Circuit."
Posted at 10:14 PM by Howard Bashman



"Heading into Second Hearing, Burden Is on Kavanaugh": People For the American Way President Ralph G. Neas issued this statement today.

Tomorrow's hearing of the Senate Judiciary Committee is scheduled to begin at 2 p.m.
Posted at 10:00 PM by Howard Bashman



"Moussaoui seeks new trial": Lyle Denniston has this post today at "SCOTUSblog."

And The Associated Press reports that "Moussaoui Asks to Withdraw Guilty Plea."

Zacarias Moussaoui's motion to withdraw his guilty plea can be accessed here.

One risk in Moussaoui's strategy is that, for reasons I have previously explained here, he could potentially be subjected to the death penalty at any new proceeding.

Update: The federal district court's order issued today denying Moussaoui's motion to withdraw the guilty plea can be accessed here.
Posted at 04:32 PM by Howard Bashman



Available online from SSRN: Patrick J. Borchers has an article entitled "The Essential Irrelevance of the Full Faith and Credit Clause to the Same-Sex Marriage Debate" (via "Legal Theory Blog").

And Davida H. Isaacs has an article entitled "The Highest Form of Flattery? Application of the Fair Use Defense against Copyright Claims for Unauthorized Appropriation of Litigation Documents."
Posted at 04:23 PM by Howard Bashman



"Anonymous Lawyer": If you loved the blog, now you can love the book -- "Anonymous Lawyer: A Novel" -- too, thanks to Amazon.com's pre-order feature.

I'm reliably advised that I have the ability to designate two "How Appealing" readers to receive advance reading copies of the book "Anonymous Lawyer: A Novel" hot off the presses. If any readers have any clever thoughts concerning what sort of contest I should hold, please feel free to email me. Chances are quite good that I will designate one book for the person who proposes the most clever contest, and the other book for the contest's winner. All decisions of the contest's judge (me in both instances) are final. Although the book itself won't appear on shelves until late July, the advance reading copies are ready to ship now, so contest ideas are officially being solicited at this time.
Posted at 04:05 PM by Howard Bashman



"Complaint Against Judge Has Broader Ramifications; Judicial panel says it lacks power to sanction L.A. jurist; Bill would create inspector general": As I first noted yesterday in a post you can access here, Henry Weinstein had this very interesting article yesterday in The Los Angeles Times.

Late last month, the U.S. Courts' Judicial Conference Committee to Review Circuit Council Conduct and Disability Orders issued the ruling that was the central focus yesterday's Los Angeles Times article. I have obtained a copy of that ruling by a divided committee -- "Judges Dolores K. Sloviter, Barefoot Sanders, and Pasco M. Bowman, II, have concurred in the opinion of the Committee. Judge Ralph K. Winter, Jr., issued a dissenting statement, also attached, in which Judge Carolyn R. Dimmick joins" -- and have posted the complete ruling online at this link.
Posted at 02:44 PM by Howard Bashman



I hope that soon I will be able to announce which appellate judge will be the 21st interviewee in this blog's "20 questions for the appellate judge" feature: On Saturday, in my post commemorating this blog's four-year anniversary, I wrote that to mark the occasion I would be resuming this blog's quite popular "20 questions for the appellate judge" interview series.

As was the case during the feature's initial appearance, my intention is to have one "20 questions" interview appear each month. During the feature's original incarnation, 20 different appellate judges were interviewed over 20 consecutive months. My hope is that the first installment of this interview feature's new incarnation will appear in June 2006.

As before, participants in the feature will be obtained on a volunteer basis. At this time, I am only seeking a volunteer to participate in the "20 questions for the appellate judge" feature in June 2006. Next month, I will seek a volunteer to participate in July 2006, and so on. The very first federal or state appellate judge to volunteer to be the "20 questions for the appellate judge" interviewee for June 2006 will be the subject of my June 2006 interview. To volunteer, simply send me an email at appellateblog@hotmail.com. Once a volunteer comes forward, I will put up a post announcing who the interviewee for June 2006 will be and explaining that no other interview volunteers are being sought at this time.

The interview is conducted entirely in writing via email. I envision transmitting the 20 questions to the interviewee on June 1, 2006, and I would request that the answers be returned to me on or before Monday, June 19, 2006. The twenty previous installments of the "20 questions for the appellate judge" feature are archived at this link, and all future installments will be archived there too after they debut as a post here at "How Appealing." Thanks again to all of the readers and judges who have persuaded me to resume this feature.
Posted at 02:33 PM by Howard Bashman



"Little-Known Weird Legal Fact Leads to Glitch in Court of Appeals Opinion": At "The Volokh Conspiracy," Eugene Volokh today has this interesting post about a recent opinion from the U.S. Court of Appeals for the Ninth Circuit that for quite understandable reasons misattributed to the U.S. Supreme Court a quotation from an early ruling of the Supreme Court of Pennsylvania.
Posted at 02:10 PM by Howard Bashman


"If Roe v. Wade is overturned, is Del. ready?" Harry F. Themal has this op-ed today in The News Journal of Wilmington, Delaware.
Posted at 12:44 PM by Howard Bashman


"Ellen Maria Reasonover was convicted in 1983 of killing James Buckley. Reasonover served over 16 years in prison, and was released in 1999 after her petition for writ of habeas corpus was granted." So begins an opinion that a unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit issued today affirming a federal district court's grant of summary judgment in favor of the defendants on Reasonover's federal civil rights and state law claims arising from her wrongful conviction and imprisonment.

Earlier coverage of this matter is available online from The American Lawyer, The St. Louis Post-Dispatch, and Salon.com.
Posted at 11:44 AM by Howard Bashman



"Facelift Scheduled for Federal Courthouse": This article appears today in The New York Sun.
Posted at 11:25 AM by Howard Bashman


"My lawyer got me $1M, but I can't talk about it; Ad, legal world fight over testimonials": Yesterday's issue of The Newark (N.J.) Star-Ledger contained this article.
Posted at 11:05 AM by Howard Bashman


"Kavanaugh to reappear before Senate Judiciary Committee": This article appears today in The D.C. Examiner, along with an article headlined "Federal court nominee is Washington native."
Posted at 11:02 AM by Howard Bashman


"Update on Uighurs": Lyle Denniston has this post online at "SCOTUSblog."
Posted at 10:45 AM by Howard Bashman


"How can you choose who dies? The application of the ultimate punishment is inexact at best; Some say that is reason to abolish it." This article appears today in The St. Petersburg Times.

And today's edition of The Hartford Courant contains an article headlined "Capital Clumsiness: Ohio Case Is Latest In Line Of Bungled Executions."
Posted at 10:44 AM by Howard Bashman



"Blawg Review #56: Sex, Virtual Weddings, and Baseball." Available here, at "PointofLaw.com."
Posted at 08:50 AM by Howard Bashman


In today's edition of The National Law Journal: Marcia Coyle reports that "Tobacco pact may light up high court; AGs seek to save massive settlement."

And the Voir Dire column contains an item reporting that, at the recent judicial conference of the U.S. Court of Appeals for the Third Circuit, Justice David H. Souter "cheerfully broke the news that Alito had issued his first Supreme Court opinion--and that the staunch conservative had reversed a criminal conviction in North Carolina. 'A year from now will I read headlines, "No more Alitos?"' Souter wondered aloud."
Posted at 08:45 AM by Howard Bashman



"Is the Stock Ownership Recusal Requirement Too Unforgiving?" The brand new installment of my weekly "On Appeal" column for law.com can be accessed at this link.
Posted at 07:28 AM by Howard Bashman


"Even if he wins, Lay is not off hook; Bank fraud, false statement charges looming": Mary Flood has this article today in The Houston Chronicle.
Posted at 07:25 AM by Howard Bashman


"Bush Says He'd Like to Close Guantanamo": The Associated Press provides a report that begins, "President Bush says he would like to close the detention center in Guantanamo in Cuba, but is waiting for a U.S. Supreme Court ruling on whether inmates can face military tribunals." The complete transcript of President Bush's interview with a correspondent from ARD German Television can be accessed here.
Posted at 07:20 AM by Howard Bashman


"Do-it-yourself defendants: Self-representation may help some gain favorable verdicts." The Baltimore Sun today contains an article that begins, "Socrates and Joan of Arc did it. So did serial murderer Ted Bundy, Black Panther Bobby Seale, Long Island Rail Road murderer Colin Ferguson and, briefly, Zacarias Moussaoui, who was sentenced to life in prison last week for conspiring in the Sept. 11 attacks. They all defended themselves in court, a right that - with certain constitutional safeguards - is guaranteed in this country."
Posted at 07:15 AM by Howard Bashman


"Scared of Scoops": Law Professor Geoffrey R. Stone has this op-ed today in The New York Times.
Posted at 07:04 AM by Howard Bashman


"Reporters' Subpoenas Amount To 'War Against the Press'": Today in The New York Sun, Josh Gerstein has an article that begins, "The Bush administration has opened a new front in its war on leaks with an aggressive and unusual move to force two San Francisco Chronicle reporters to identify their sources for stories about secret grand jury testimony from a federal investigation of steroid use in professional baseball."
Posted at 06:58 AM by Howard Bashman


In the May 15, 2006 issue of The New Yorker: Hendrik Hertzberg has a Talk of the Town comment entitled "Sentenced" about the Zacarias Moussaoui case.

And Mitchell Zuckoff has an Annals of Crime essay entitled "The Perfect Mark: How a Massachusetts psychotherapist fell for a Nigerian e-mail scam."
Posted at 06:50 AM by Howard Bashman



In commentary available online today from FindLaw: Law Professor Douglas W. Kmiec has an essay entitled "The Moussaoui Trial, and Its Verdict: Life Imprisonment Was the Right Call by the Jury, But the Process Shows the President Is Right About Military Commissions."

And Elaine Cassel has an essay entitled "Defending The Zacarias Moussaoui Sentence: Why the Phase One and Phase Two Verdicts Were Consistent, And Why the Sentence Was the Right One."
Posted at 06:45 AM by Howard Bashman



"Republicans Stoke an Old Fire: Judicial Nominations." This article appears today in The New York Times.

And Financial Times reports today that "Bush faces a potential showdown over judges."
Posted at 12:34 AM by Howard Bashman



Philadelphia Phillies 9, San Francisco Giants 5: Thanks to a late arrival scheduled tomorrow for my son's elementary school, he was able to accompany me to tonight's Phillies game, where we saw both a victory for our home team and the 713th home run for Barry Bonds, putting him one shy of Babe Ruth's record. There was no doubt about the home run; it glanced off an advertisement at the base of the upper deck in right field in Citizens Bank Park. Bonds had one more at bat to try for number 714, but he struck out.

Although Major League Baseball may not be planning to officially commemorate the tying or passing of Babe Ruth's home run total, it was apparent that specially marked baseballs were used for Bonds's final at bat of the evening. The ball boy gave a supply of specially marked baseballs to the home plate umpire at the start of Bonds's final at bat, and then the ball boy took away the remaining specially marked baseballs, and replaced them with regular baseballs, following the strikeout.

Wraps of Sunday night's game can be accessed here and here, while the box score is available at this link. Special coverage of home run 713 can be found here, here, here, here, here, and here.
Posted at 12:28 AM by Howard Bashman



Sunday, May 07, 2006

"Governor's counsel will clerk for U.S. Justice Alito": This article appeared Friday in The Salt Lake Tribune.
Posted at 03:48 PM by Howard Bashman


Bob Egelko is reporting: Today in The San Francisco Chronicle, he has an article headlined "The Balco Case: More pressure on reporters to name sources" and a news analysis headlined "How Bush sidesteps intent of Congress: Instead of vetoing bills, he officially disregards portions with which he doesn't agree."
Posted at 11:44 AM by Howard Bashman


"Complaint Against Judge Has Broader Ramifications; Judicial panel says it lacks power to sanction L.A. jurist; Bill would create inspector general": Today in The Los Angeles Times, Henry Weinstein has an article that begins, "A long-running controversy involving a misconduct complaint against veteran Los Angeles federal Judge Manuel L. Real has reached the nation's capital, where it could influence legislation proposed by conservatives seeking to exert greater oversight of the federal judiciary. Real seized control from another judge of a bankruptcy involving a woman whose probation he was overseeing, permitting Deborah M. Canter to live rent-free for three years in a Highland Avenue house and costing her creditors $35,000 in rent and thousands more in legal costs, according to court documents. A sharply divided national federal judicial discipline committee ruled 3 to 2 in late April that it had no power to sanction Real, 81, because the chief judge of the U.S. 9th Circuit Court of Appeals failed to properly investigate the complaint."

If anyone can point to me where last month's ruling of the "sharply divided national federal judicial discipline committee" is available online so that I can link to it, or if anyone can send an electronic copy of that ruling to me so that I can post it online, I will be most appreciative.

The ruling of the Judicial Council of the U.S. Court of Appeals for the Ninth Circuit in this matter from September 2005 is available online at this link. And my earlier coverage of that ruling appears here, here, and here.
Posted at 09:05 AM by Howard Bashman



"Sniper Trial: A Glimpse of the Jury That Will Decide Case in Montgomery." This article appears today in The Washington Post.
Posted at 08:54 AM by Howard Bashman


In today's edition of The New York Times: In the Week in Review section, Adam Liptak has an article headlined "Sedition: It Still Rolls Off the Tongue."

And the cover story of The New York Times Magazine is headlined "Contra-Contraception: A growing number of conservatives see birth control as part of an ailing culture that overemphasizes sex and devalues human life; Is this the beginning of the next culture war?"
Posted at 08:44 AM by Howard Bashman



Saturday, May 06, 2006

"Where Are They: Thomas Penfield Jackson; Outspoken Judge in Microsoft Case Has Retired From the Bench but He Is Still Speaking His Mind." This article (free access) appears today at The Wall Street Journal Online.
Posted at 11:34 PM by Howard Bashman


This afternoon's blogging break on the fourth anniversary of this blog's existence was courtesy of the Philadelphia Soul arena football team: My son got to sit on the bench with the players during the game in his capacity as Philadelphia Soul's Ball Boy of the day. The Soul today defeated the Dallas Desperados 51-48 (details here). This was my family's first arena football experience, made extra special as the result of free tickets and all access passes.

Tomorrow night my son and I will be back in south Philly to cheer on the Philadelphia Phillies against Barry Bonds and the San Francisco Giants. The Phillies have held Bonds homerless through the first two games of the series, so he would have to hit three tomorrow night in order to pass Babe Ruth in the record books while in Philly.
Posted at 11:28 PM by Howard Bashman



"Nuss panel begins inquiry; Judicial committee examining judge": The Topeka Capital-Journal today contains an article that begins, "A state commission met privately Friday to consider a formal ethics investigation of Kansas Supreme Court Justice Lawton Nuss for talking with lawmakers about a pending lawsuit."

Meanwhile, on Friday, The Lawrence Journal-World reported that "Sebelius denies inside information from court."

And Friday in The Kansas City Star, Barbara Shelly had an op-ed entitled "Meal in Topeka gave court, Capitol indigestion."
Posted at 11:18 PM by Howard Bashman



"Ryan judge calls 2 jurors, rejects mistrial; Guilty verdict was not tainted by legal research, she says": The Chicago Tribune contains this article today.

And The Chicago Sun-Times today contains an article headlined "Ryan judge: Verdict stands."
Posted at 11:10 PM by Howard Bashman



"Hosts not liable for partygoer driving drunk; Top court rules in case brought by woman who was left paraplegic after accident": This article appears today in The Toronto Globe and Mail.

And The Toronto Star reports today that "Host not liable for drunk guests."

My earlier coverage is at this link.
Posted at 09:02 PM by Howard Bashman



"U.S. Court Passes on Marriage Lawsuit; Federal judges say the two Orange County men should wait for state courts to sort out issues": The Los Angeles Times contains this article today.

And today in The San Francisco Chronicle, Bob Egelko reports that "Gay couple can't challenge marriage act; Groups supporting same-sex unions back federal ruling."

My earlier coverage is here.
Posted at 08:55 PM by Howard Bashman



"Sniper testimony begins; State starts case against Muhammad with vivid details of the first two killings": This article appears today in The Baltimore Sun.

And The Washington Post reports today that "Muhammad Questions Shootings' Witnesses; Sniper Suspect's Calm Side Emerges As Testimony Starts."
Posted at 08:23 PM by Howard Bashman



Jurisprudence essays available online at Slate: Dahlia Lithwick has an essay entitled "Barely Lethal: How both sides have staked out the worst position in the lethal-injection fight."

And Hanny Hindi has an essay entitled "Take My Life, Please: Merciful (but messy) alternatives to lethal injection."
Posted at 08:15 PM by Howard Bashman



"School worker axed for Net use": The New York Daily News today contains a news brief that begins, "City Schools Chancellor Joel Klein canned an Internet-surfing employee yesterday, despite a judge's ruling that city workers can check out the Web at work."
Posted at 01:04 PM by Howard Bashman


In today's edition of The New York Times: Adam Liptak reports that "Nonlawyer Father Wins His Suit Over Education, and the Bar Is Upset."

And in news from the New York region, "Another Prologue Begins in Epic 9/11 Court Case" and "After a Trial, the Tables Are Turned on a Defense Lawyer."
Posted at 01:00 PM by Howard Bashman



"Bar Association Rates Nominee to Federal Court 'Not Qualified'": The New York Times contains this article today.

And The Hartford Courant reports today that "Panel Deals Judge A Setback; Bar Committee Opposes Nomination."
Posted at 12:55 PM by Howard Bashman



"Illinois high court denies rehearing in tobacco suit": This article appears today in The St. Louis Post-Dispatch.

And The Wall Street Journal reports today that "Philip Morris Gets Court Victory" (free access).
Posted at 12:40 PM by Howard Bashman



"Student's liaison leads to lawsuit; Off-campus fling earned suspension": The Raleigh (N.C.) News & Observer today contains an article that begins, "A 16-year-old student and his mother have sued the Wake County Board of Education after he was suspended for having sex during school hours at his girlfriend's house. The suit, filed last week in Wake Superior Court by Ryan Biggar and his mother, Patricia, says school officials have no authority over students' off-campus behavior."
Posted at 09:44 AM by Howard Bashman


"Edwards: Withdraw Boyle's nomination." The Raleigh (N.C.) News & Observer today contains a news brief that begins, "Former U.S. Sen. John Edwards called on President Bush on Friday to withdraw the nomination of U.S. District Judge Terrence Boyle to a federal appeals court."
Posted at 09:40 AM by Howard Bashman


On May 6, 2002 -- four years ago today -- the blog "How Appealing" came into existence: That's right, today is this blog's fourth birthday. You can access this blog's complete archives, consisting of every post that has appeared during the history of "How Appealing," via this link.

To celebrate this blog's fourth anniversary, and after much clamoring from my readers, I have decided to resume one of this blog's most popular monthly features, "20 questions for the appellate judge." The first 20 months of that interview feature can be accessed via the link provided in the preceding sentence.

Of course, the "20 questions for the appellate judge" feature can only exist if appellate judges are willing to volunteer to be interviewed. On Monday, May 8, 2006 at 9 a.m. eastern time, I will post online here details of how appellate judges can volunteer to take part in this popular monthly online interview feature and when, if all goes as planned, the feature will resume.

Thanks to each and every reader who has made "How Appealing" so much fun to operate during the first four years of its existence!
Posted at 09:30 AM by Howard Bashman



Friday, May 05, 2006

"Bush pushes Sooner for appeals court": The Tulsa World today contains an article that begins, "President Bush on Thursday nominated Oklahoma City attorney Jerome Holmes for a vacancy on the 10th U.S. Circuit Court of Appeals."

And last month, the newspaper published an article headlined "OKC attorney likely to fill 10th Circuit slot; Tulsa judge emerging for federal bench."
Posted at 11:48 PM by Howard Bashman



Available online from law.com: An article reports that "11th Circuit Tosses Drastically Reduced Sentence for HealthSouth Executive." You can access today's ruling of the U.S. Court of Appeals for the Eleventh Circuit at this link.

And the brand new installment of my "On Appeal" column is headlined "Is the Stock Ownership Recusal Requirement Too Unforgiving?"
Posted at 11:44 PM by Howard Bashman



U.S. government advises the U.S. Court of Appeals for the D.C. Circuit that ethnic Uighur Chinese nationals formerly detained at Guantanamo Bay have today been released to Albania for resettlement there as refugees: You can access the federal government's filing, made late today, at this link. The case had been scheduled for oral argument Monday in the D.C. Circuit, and the federal government has now filed an emergency motion to dismiss the case as moot.

In early press coverage, The Associated Press reports that "Albania Takes 5 Ethnic Chinese From Gitmo."
Posted at 08:10 PM by Howard Bashman



"Judge in Ryan Trial Finds No Jury Bias": The Associated Press provides this report from Chicago.
Posted at 05:58 PM by Howard Bashman


"Improving scotusblog": You can join Linda Greenhouse in offering suggestions at this link. Meanwhile, readers of "How Appealing" are constantly offering me suggestions on how to improve my blog, which is why you don't see me asking for even more suggestions of that nature.
Posted at 03:55 PM by Howard Bashman


"Gay couple can't contest marriage definition": Bob Egelko of The San Francisco Chronicle provides a news update that begins, "A federal appeals court today dismissed a challenge by two Orange County men to a law denying federal marriage benefits to same-sex couples, saying a couple that isn't legally married under state law has no right to contest the federal definition of marriage." My earlier coverage appears here.
Posted at 03:50 PM by Howard Bashman


"Now in foreground: jurors' backgrounds; Attorneys split on need for checks." This article (free access) will appear in next week's issue of The National Law Journal.
Posted at 03:28 PM by Howard Bashman


"Marcos' victims to split $35 million from U.S. account; Philippine government loses in appeals court": Today in The San Francisco Chronicle, Bob Egelko has this article reporting on a ruling that the U.S. Court of Appeals for the Ninth Circuit issued yesterday.

And in other coverage, David Kravets of The Associated Press reports that "Court OKs $35M for Marcos Victims."
Posted at 03:18 PM by Howard Bashman



"A federal appeals panel's recent decision barring anti-gay T-shirts in public schools cited a famous case upholding student-speech rights -- but focused on a phrase about 'the rights of others' to come down against a form of student expression." So begins an essay by David L. Hudson Jr. posted online today at the First Amendment Center.
Posted at 03:15 PM by Howard Bashman


"Lay and Skilling miss their marks; As the Enron trial enters its final stretch, legal experts say the odds are stacked against Enron founder Ken Lay and former CEO Jeffrey Skilling": CNNMoney.com provides this report.
Posted at 03:14 PM by Howard Bashman


"U.S. Appeals Court Sidesteps Gay Marriage": David Kravets of The Associated Press provides this report. My earlier coverage is here.
Posted at 03:08 PM by Howard Bashman


"[U]nder the majority's decision, no one from Colombia will be entitled to asylum." Eleventh Circuit Judge Ed Carnes has today issued a stirring dissent from the denial of a petition for review in an asylum case. Circuit Judge William H. Pryor, Jr. wrote the majority opinion.

In dissent, Judge Carnes writes:

In determining whether the facts and circumstances in any case compel a conclusion, we ought to face up to the full force of them in their entirety. The majority's approach, instead, is a virtuoso exercise in deconstructionism. It proceeds by disassembling the whole of the evidence and then explaining why each part by itself is insufficiently compelling. This is like a man who attempts to demonstrate that a bucket of water is not really that by emptying it cup by cup, asserting as he goes along that each cupful is not a full bucket's worth until, having emptied the whole, he proclaims that there just wasn't a bucket of water there.
The majority opinion responds as follows:
The dissent accuses the majority of deconstructing the evidence to reach its decision, but the dissent uses a vivid imagination to draw inferences in favor of Silva and ignore competing inferences that favor the findings of the Immigration Judge, contrary to our deferential standard of review. Because imaginative inferences are all that support its opinion, the dissent is left in the position of one who, trying to fill a leaky bucket with water, must first plug all the holes. Silva's testimony is full of holes, and the dissent impermissibly draws inferences in Silva's favor to plug those holes.
You can access the complete ruling at this link.
Posted at 03:00 PM by Howard Bashman


"Congress advised to reject Akaka bill": The Honolulu Advertiser today contains an article that begins, "The U.S. Commission on Civil Rights recommended yesterday that Congress reject a bill granting federal recognition and self-government rights to Hawaiians."
Posted at 02:48 PM by Howard Bashman


Three-judge Ninth Circuit panel in no hurry to legalize same-sex marriage in California: You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link. Fans of obscure language will rate the opinion a triple-F based on passages such as "While a scry of the complaint might lead one to think that the issue here is not general, a true perscrutation leads to the opposite conclusion." Senior Circuit Judge Jerome Farris, perhaps unwilling to imperil the trees necessary to produce an unabridged dictionary, merely concurs in the result without separate opinion.
Posted at 02:35 PM by Howard Bashman


The Associated Press is reporting: An article is headlined "ABA Rates Conn. Judge 'Not Qualified.'" The rating in question can be viewed at this link.

And in other news, "Ill. Court Won't Rehear Philip Morris Case." My earlier coverage of this case can be accessed here.
Posted at 02:14 PM by Howard Bashman



"Supreme Court: Private party hosts not liable." The Toronto Globe and Mail provides a news update that begins, "The Supreme Court of Canada ruled Friday that two hosts of a New Year's Eve party were not responsible for the havoc caused by a guest who drunkenly drove away from their house and caused crippling injuries to an 18-year-old woman." My earlier coverage is here.
Posted at 12:54 PM by Howard Bashman


"The Moussaoui Sentence: How the would-be terrorist avoided death." Meghan O'Rourke has this essay online at Slate today.
Posted at 12:50 PM by Howard Bashman


"'Gang of 14' to Meet Tuesday": Roll Call provides a news update (subscription required) that begins, "The bipartisan 'Gang of 14' will meet Tuesday evening in the office of Sen. Ben Nelson (D-Neb.) to discuss its part in the upcoming Senate fight over controversial judicial nominees, sources say."

And today at National Review Online, Byron York has an essay entitled "What's Behind the New Fight Over Judges: Republicans look to pick their battles--very carefully."
Posted at 12:10 PM by Howard Bashman



"Court Challenges Internet Wiretap Rules": The Associated Press provides a report that begins, "A U.S. appeals panel challenged the Bush administration Friday over new rules making it easier for police and the FBI to wiretap Internet phone calls."
Posted at 11:58 AM by Howard Bashman


"If the district court then finds in favor of the plaintiffs, it shall develop a plan under which Native-Americans will have a reasonable opportunity to elect an Indian-preferred candidate." This decision issued today by a divided three-judge panel of the U.S. Court of Appeals for the Eighth Circuit represents at least a temporary victory for a Native American voting rights claim under Section 2 of the Voting Rights Act of 1965 against the City of Martin, South Dakota.
Posted at 11:55 AM by Howard Bashman


"8th Circuit Sides with Easterbrook Over Posner: Post-Assessment Returns Are Valid Returns for Bankruptcy Tax Purposes." This post appears today at "TaxProf Blog."
Posted at 10:58 AM by Howard Bashman


The Associated Press is reporting: Now available online are articles headlined "U.S. Defends New Internet Wiretap Rules"; "Court Denies Felons Voting Rights Argument"; and "Anna Nicole Smith Pregnancy Rumors Swirl."
Posted at 10:30 AM by Howard Bashman


On today's broadcast of NPR's "Morning Edition": The broadcast contained segments entitled "Senate Bids to Avert Filibuster on Judicial Pick" and "Prosecution Stalls for Senior Terrorism Suspects" (RealPlayer required).
Posted at 10:25 AM by Howard Bashman


In news from Canada: Canadian Press reports that "Social hosts not liable for drunken guests who leave parties." You can access today's ruling of the Supreme Court of Canada at this link.
Posted at 10:22 AM by Howard Bashman


"Juror released from time-out chair; Judge cites inconsistencies between man's letter to avoid jury, questions under oath; coverage criticized": This article appears today in The Detroit News.

I have posted online at this link yesterday's opinion and order issued by Chief U.S. District Judge Bernard A. Friedman of the Eastern District of Michigan. My earlier coverage of this matter appears here.
Posted at 10:20 AM by Howard Bashman



"Top court to rule on party hosts' responsibility": CBC News provides a report that begins, "A decision expected this morning from the Supreme Court of Canada could affect anyone planning to have a house party."
Posted at 09:55 AM by Howard Bashman


"Conflict puts vote on Boyle in doubt; Allegations spur opponents to fight judicial nomination": The News & Observer of Raleigh, North Carolina today contains an article that begins, "Allegations that U.S. District Judge Terrence Boyle broke a conflict-of-interest law have strengthened Democrats' resolve to fight his promotion and raise doubts about whether the North Carolina judge's nomination will ever get a full vote in the U.S. Senate."

Somewhat relatedly, the working title of next Monday's installment of my "On Appeal" column for law.com (scheduled to debut online at around 10:30 p.m. eastern time tonight) is "Is the Statute Requiring a Federal Judge to Recuse Due to Stock Ownership in a Litigant Too Unforgiving?"
Posted at 09:54 AM by Howard Bashman



No resemblance to Michael Chertoff: The Harvard Crimson today contains an article headlined "Mr. Burns' Voice Speaks at HLS; Pennsylvania Ave. meets Hollywood Blvd. in Law School discussion."
Posted at 08:54 AM by Howard Bashman


"One Last Appearance, and Outburst, From Moussaoui": Neil A. Lewis has this article today in The New York Times.

The Washington Post today contains articles headlined "Some Saw Moussaoui As Bit Player, Juror Says; 'You Will Die With a Whimper,' Judge Tells Conspirator"; "New Home Is 'Alcatraz of the Rockies'; Moussaoui to Join Many High-Profile Inmates at Federal Prison in Colorado"; and "Moussaoui's Mother Blames Outcome on French Passivity; Officials Aided in Conviction To Appease U.S., She Says." In addition, Law Professor David Cole has an op-ed entitled "How Not to Fight Terrorism."

The Los Angeles Times contains articles headlined "With Judgment, Moussaoui Is Silenced at Last; His voice fades from the courtroom that served as a stage for his hateful rants; A jurist sends him 'to die with a whimper' in federal prison" and "The Slow Rot at Supermax; At Moussaoui's future home in Florence, Colo., inmates are reportedly not merely punished, but incapacitated and broken down."

The Richmond Times-Dispatch contains an article headlined "Life for Moussaoui."

And USA Today reports that "Moussaoui to join worst of worst at Colo. prison; 9/11 conspirator will spend most of his time in solitary confinement."
Posted at 07:28 AM by Howard Bashman



"Muhammad Denies Guilt In Slayings By Snipers; Statement Mixes Love Of Children, Philosophy": This article appears today in The Washington Post.

And The Baltimore Sun today contains articles headlined "Muhammad cites the Gospel, Plato; Sniper professes innocence, says he came to Md. seeking his kids" and "Defendant impresses as 'smooth.'"
Posted at 07:20 AM by Howard Bashman



"Professor Testifies on Lay Stocks; Prosecution Won't Call Causey": The Wall Street Journal contains this article (free access) today.

The Houston Chronicle reports today that "Defense shifts to avoid issue of shredding; Ruling causes attorneys to drop the testimony of ex-accountant at Arthur Andersen."

And in The New York Times, Floyd Norris has an essay entitled "Ken Lay Still Thinks Enron Was Healthy" (TimesSelect subscription required).
Posted at 07:18 AM by Howard Bashman



"SJC weighs petition to block gay marriage": This article appears today in The Republican of Springfield, Massachusetts.

The Boston Globe reports today that "Ballot to ban gay marriage debated."

And The Boston Herald reports that "Pols' gay-wed debate put off until SJC rules."
Posted at 07:15 AM by Howard Bashman



"Weighing all the evidence": The Los Angeles Times today contains an editorial that begins, "In the first opinion from its newest justice, the U.S. Supreme Court has given criminal defendants something most Americans assumed they already possessed: the right to offer evidence that somebody else committed the crime."
Posted at 07:08 AM by Howard Bashman


"Specter Grants Judicial Nominee Second Hearing; Kavanaugh to Answer Questions on Role in Torture and Spying": This article appears today in The Washington Post.

And The Washington Times reports today that "Specter grants judicial hearing."
Posted at 06:55 AM by Howard Bashman



"Use of Contraception Drops, Slowing Decline of Abortion Rate": The New York Times contains this article today.
Posted at 06:50 AM by Howard Bashman


"Second Front -- Why Microsoft Battles Europe Years After Settling With U.S.; Suspicions and Missteps Keep Its Antitrust Case Alive; Guarding Rival Engineers; Spat Over Encrypting a Disk": This front page article (free access) appears today in The Wall Street Journal.
Posted at 06:45 AM by Howard Bashman


Thursday, May 04, 2006

"Moussaoui Verdict Highlights Where Juries Fear to Tread": Adam Liptak will have this news analysis Friday in The New York Times.
Posted at 11:02 PM by Howard Bashman


Access online the judgment in a criminal case entered today in United States v. Zacarias Moussaoui: The judgment can be viewed by clicking here.
Posted at 10:58 PM by Howard Bashman


"Moussaoui trial: more heat than light in the end; Judge tells Al Qaeda terrorist he won't go out in a 'bang of glory' as she sentences him to life in prison": Warren Richey will have this article Friday in The Christian Science Monitor.
Posted at 10:54 PM by Howard Bashman


Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained segments entitled "Defiant Moussaoui Sent to 'Super-Max' Prison" and "America's Super-Max Prison to Host Moussaoui."

Today's broadcast of "Day to Day" contained segments entitled "Moussaoui Formally Sentenced to Life Imprisonment"; "Was Justice Done in the Moussaoui Sentence?" (featuring Law Professor Douglas W. Kmiec); "Moussaoui's New Home: A Cell in Super-Max Prison"; and "Enron Update: Final Defense Witnesses Testify" (featuring Mary Flood of The Houston Chronicle).

And today's broadcast of "Morning Edition" contained segments entitled "Jury Rejects Execution for Moussaoui"; "The Meaning of the Moussaoui Sentencing Verdict"; "Sept. 11 Families React to Moussaoui Sentence"; "Legal Analysis of the Moussaoui Sentencing Verdict"; and "Judge Sends Moussaoui to Prison for Life."

RealPlayer is required to launch these audio segments.
Posted at 10:38 PM by Howard Bashman



Available online from law.com: In news from the Second Circuit, "Lawyer-Dad's Request for Fees Is Rejected in Daughter's Case." My earlier coverage is here.

In other news, "Expert Witness Requirements at Issue in Illinois Case."

And an article reports that "N.Y. High Court Considers Removing Judge for Helping Robbery Suspect Evade Police; Lawyer argues that the justice apologized and didn't profit from her mistake."
Posted at 10:25 PM by Howard Bashman



The White House nominates Jerome A. Holmes of Oklahoma to serve on the U.S. Court of Appeals for the Tenth Circuit: And, simultaneously, the White House has withdrawn this same individual's nomination to serve on the U.S. District Court for the Northern District of Oklahoma. The nomination and withdrawal can be accessed here. You can access the nominee's law firm bio at this link, and a press release issued to announce his arrival at his current law firm is here.

As noted in this post at "Red State," the nominee's ABA rating for the district court judgeship was Q(sm)/NQ(min).
Posted at 10:09 PM by Howard Bashman



"Scalia: Constitution means what it says." This article appears today in The Southeast Missourian.

And you can also access online the transcript of "Rush's Dinner with Scalia" from today's broadcast of The Rush Limbaugh Show.
Posted at 09:14 PM by Howard Bashman



The May 2006 issue of The Yale Law Journal features three separate reviews of Justice Stephen G. Breyer's book, "Active Liberty: Interpreting Our Democratic Constitution." The review by Law Professor Paul Gewirtz is titled "The Pragmatic Passion of Stephen Breyer."

The must-read review by Seventh Circuit Judge Richard A. Posner is titled "Justice Breyer Throws Down the Gauntlet."

And the review by Law Professor Cass R. Sunstein is titled "Justice Breyer's Democratic Pragmatism."

Thanks to OrinKerr.com for the pointer.
Posted at 09:00 PM by Howard Bashman



"This case represents the next chapter in an ongoing saga regarding the labeling of catfish." So begins an opinion that the U.S. Court of Appeals for the Fifth Circuit issued today. Today's decision affirms a federal district court's ruling that enjoined the Commissioner of the Louisiana Department of Agriculture from enforcing against the plaintiff Louisiana laws regulating the labeling of catfish and regulating the use of the word "Cajun" on food products.
Posted at 08:40 PM by Howard Bashman


The Associated Press is reporting: Now available online are articles headlined "Moussaoui Sentenced to Life at Supermax"; "Mass. Court Weighs Gay-Marriage Vote"; and "Md. Murder Trial Opens for Convicted Sniper."
Posted at 08:35 PM by Howard Bashman


"Flag Desecration Ban Advances in Senate": The Associated Press provides this report.
Posted at 04:58 PM by Howard Bashman


The U.S. Court of Appeals for the Federal Circuit has announced that former Chief Judge Howard T. Markey died May 3, 2006: The court has posted online this obituary.
Posted at 04:55 PM by Howard Bashman


"Court Rejects Medical Marijuana Defense": The Associated Press provides this report on a ruling that the Supreme Court of Oregon issued today.
Posted at 03:15 PM by Howard Bashman


"This case arises from the claim of an American Indian nation to a portion of its aboriginal land. For the reasons that follow, we find that any aboriginal rights held by the Delaware Nation to the land known as 'Tatamy's Place' were extinguished by Thomas Penn via the Walking Purchase of 1737." So begins an opinion that the U.S. Court of Appeals for the Third Circuit issued today. At issue in the case are "315 acres of land located in Northampton County, Pennsylvania."
Posted at 02:50 PM by Howard Bashman


On Saturday, "How Appealing" turns four years old: This blog's first day of existence was May 6, 2002.
Posted at 02:25 PM by Howard Bashman


The Harvard Crimson is reporting: Today's newspaper contains articles headlined "Breyer Banters With Law Students" and "Blog Server Launched by HLS and Berkman Center Upgraded."
Posted at 02:24 PM by Howard Bashman


"Ryan juror has had enough: Motion filed to block interviews." This article appears today in The Chicago Sun-Times.

And The Associated Press provides an updated report headlined "Ryan judge may OK juror interview."
Posted at 02:20 PM by Howard Bashman



"Mom: Moussaoui Sentence Worse Than Death." The Associated Press provides a report that begins, "Zacarias Moussaoui's mother said Thursday a life sentence for her son was more cruel than putting him to death because now he will 'live like a rat in a hole.'"
Posted at 02:14 PM by Howard Bashman


C-SPAN has posted online archived video of this morning's executive business meeting of the Senate Judiciary Committee: You can access the video by clicking here (RealPlayer required). I earlier chronicled in this post the actions taken at the meeting on the three federal appellate court nominees.
Posted at 01:05 PM by Howard Bashman


"Anonymous Blogging: David Lat and Jonathan Adler." Daniel J. Solove has this post today at "Concurring Opinions."

Update: And at "The Volokh Conspiracy," Jonathan Adler has a post titled "Live Blogging the CFP Panel."
Posted at 12:55 PM by Howard Bashman



Seventh Circuit holds that defendant has standing to appeal from mortgage foreclosure judgment in favor of plaintiff even though judgment awarded plaintiff no tangible relief: You can access today's ruling at this link. The three-judge panel consists of three of the Seventh Circuit's best writers, and Circuit Judge Richard A. Posner is identified as the author of the opinion. Sadly, the case was not orally argued on appeal, so I cannot link to the oral argument audio.
Posted at 12:40 PM by Howard Bashman


En banc U.S. Court of Appeals for the Second Circuit holds that the federal Voting Rights Act does not apply to New York's prisoner disenfranchisement law: Thirteen judges participated in today's ruling, which consists of ten separate opinions.

The majority opinion explains, "Our holding is based on our conclusion that Congress did not intend or understand the Voting Rights Act to encompass such felon disenfranchisement statutes, that application of the Voting Rights Act to felon disenfranchisement statutes such as these would alter the constitutional balance between the States and the Federal Government, and that Congress at the very least did not clearly indicate that it intended the Voting Rights Act to alter the federal balance in this way."

In a second, related case, the en banc Second Circuit today unanimously dismissed the case because the plaintiff lacked standing.

Update: At his "Election Law" blog, Law Professor Rick Hasen offers some initial thoughts on the ruling here.
Posted at 12:14 PM by Howard Bashman



"Which Idahoan Has Better Shot At 9th Circuit? Feinstein May Make Do With Smith to End Myers' Chance." Lawrence Hurley has this article today in The Daily Journal of California.
Posted at 12:00 PM by Howard Bashman


"Anti-Abortion Counseling Law Constitutional, ACLU Says": Today in The New York Sun, Josh Gerstein has an article (pass-through link) that begins, "The American Civil Liberties Union has concluded after a legal review that a New York congresswoman's proposal to regulate advertising by anti-abortion counseling centers is likely constitutional, officials with the civil liberties organization said yesterday."
Posted at 11:35 AM by Howard Bashman


"Specter Gives Judicial Nominee New Hearing": The Associated Press provides a report that begins, "Judiciary Committee Chairman Arlen Specter on Thursday granted Democrats a hearing to question White House aide and judicial nominee Brett Kavanaugh on his role in the administration's secret wiretapping program, its torture policy and any relationship with convicted lobbyist Jack Abramoff."
Posted at 11:32 AM by Howard Bashman


The Senate Judiciary Committee will hold another confirmation hearing for D.C. Circuit nominee Brett M. Kavanaugh: The hearing will occur next Tuesday, with a possible committee vote next Thursday.

In other news from today's business meeting, Ninth Circuit nominee Milan D. Smith, Jr. was favorably reported to the full U.S. Senate by consent.

Up next for discussion, the more controversial (because he's based in Idaho) Ninth Circuit nominee, N. Randy Smith.

Update: For what it's worth, Ninth Circuit Judge M. Margaret McKeown, when she was nominated by President Clinton, was a resident of Washington State. Since then, Judge McKeown has moved her chambers to San Diego, California. So, sometimes California loses a Ninth Circuit judge, while other times it gains one.

Second update: The vote on Ninth Circuit nominee N. Randy Smith appears to have been 10-8, along party lines, so that nomination is being favorably reported to the full Senate.
Posted at 10:45 AM by Howard Bashman



"Moussaoui: U.S. Will Never Catch Bin Laden." The Associated Press provides a report that begins, "U.S. District Judge Leonie Brinkema told Zacarias Moussaoui 'you will die with a whimper,' never allowed to speak publicly again, as she sentenced him to life in prison."
Posted at 10:40 AM by Howard Bashman


"Ruling against ban on laborers' soliciting; Ordinance violates freedom of speech, federal judge says": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "A Southern California city's ban on day laborers' soliciting work from passing drivers violates freedom of speech, a federal judge has ruled in a case that could affect similar ordinances in Bay Area cities."

In earlier coverage, The Los Angeles Times reported yesterday that "Judge Blocks Arrests of Day Laborers; The ruling states that a Redondo Beach law that bars people from gathering on sidewalks while seeking work is unconstitutional."

And The Daily Breeze of Torrance, California reported yesterday that "Federal judge rejects RB law barring day laborers; Ordinance is ruled in violation of the First Amendment; The city attorney calls the decision 'frustrating' but not a surprise."

I have posted online a copy of last week's ruling of the U.S. District Court for the Central District of California at this link.
Posted at 10:14 AM by Howard Bashman



"Scalia warns of judicial aristocracy": The St. Louis Post-Dispatch today contains an article that begins, "U.S. Supreme Court Justice Antonin Scalia complained to a St. Louis audience Wednesday that judges are deciding moral issues that ought to be left up to the public through the political process."
Posted at 09:24 AM by Howard Bashman


Access online the agenda for this morning's executive business meeting of the Senate Judiciary Committee: The agenda, which indicates that three nominees to the U.S. Courts of Appeals could receive votes in committee today, can be accessed here.

C-SPAN3 (available in both RealPlayer and Windows Media formats) plans to broadcast the meeting live, starting at 9:30 a.m.
Posted at 08:55 AM by Howard Bashman



"Salazar critical of Bush nominee": This article appears today in The Rocky Mountain News, along with an editorial entitled "Salazar and the filibuster temptation."
Posted at 08:50 AM by Howard Bashman


"Jury spares 9/11 plotter Moussaoui; Life in a tiny prison cell awaits conspirator": CNN.com provides this report.
Posted at 08:45 AM by Howard Bashman


"Moussaoui Given Life Term by Jury Over Link to 9/11": Neil A. Lewis has this article today in The New York Times. The newspaper also contains an article headlined "Some 9/11 Families Side With Jury on Moussaoui, but Most Express Regrets" and an editorial entitled "Due Process."

The Washington Post today contains articles headlined "Jurors Reject Death Penalty For Moussaoui" and "For Victims' Families, Verdict Elicits Mix of Shock, Relief." The newspaper also contains an editorial entitled "The Right Punishment: A terrorist will spend life behind bars."

The Los Angeles Times reports that "Jurors Give Moussaoui Life Term; They spare the 9/11 conspirator execution, apparently finding him not directly to blame; Afterward, he exults, 'America, you lost!'" David G. Savage has a news analysis headlined "No Trials for Key Players; Government prefers to interrogate bigger fish in terrorism cases rather than charge them." And an editorial is entitled "America's day in court."

The Richmond Times-Dispatch contains articles headlined "Moussaoui gets life in prison; 3 jurors did not think he played a major role in the Sept. 11 attacks" and "Families doubt Moussaoui; Victims' relatives differed on desired sentence, but say he exaggerated role."

The Sacramento Bee reports that "Jurors decide to spare Moussaoui's life."

Newsday contains articles headlined "No death penalty for Moussaoui in 9/11 role; Jury sentences Al-Qaida conspirator Zacarias Moussaoui to life in prison for WTC attacks"; "Moussaoui verdict reactions mixed"; and "Serving time the worst way."

In The Boston Globe, Charlie Savage reports that "Jury decides against execution for Moussaoui; Al Qaeda terrorist charged in 9/11 attacks receives life sentence."

The Washington Times reports that "9/11 terrorist spared death."

And USA Today reports that "Terrorist Moussaoui gloats, 'I won'; Jurors decide he was marginal to Sept. 11 attacks" and "Government falls just short in its gamble on link to 9/11." In addition, the newspaper contains an editorial entitled "Jurors' verdict a triumph of reason over emotion; Decision shows America can fight terror without losing its ideals," while Viet Dinh has an op-ed entitled "Justice not served; Life sentence for Moussaoui fails memory of 3,000 fallen Americans."
Posted at 07:20 AM by Howard Bashman



"Visto Readies for Fight With RIM, Says That Isn't Its Main Business": This article (free access) appears today in The Wall Street Journal.
Posted at 07:18 AM by Howard Bashman


"Company officials acted in good faith, not greed, accounting expert testifies; 'You're not going to get everything right,' consultant who was hired by Skilling says": The Houston Chronicle contains this article today.

And The Wall Street Journal reports today that "Defense Consultants Testify Enron Books Were Sound" (free access).
Posted at 07:15 AM by Howard Bashman



"Under U.S. Pressure, Mexico President Seeks Review of Drug Law": This article appears today in The New York Times.

And The Chicago Tribune reports today that "Mexico's Fox retreats on measure to ease drug penalties."
Posted at 07:14 AM by Howard Bashman



"City has 90 days to remove Mt. Soledad cross; Judge threatens fine to enforce '91 ruling": The San Diego Union-Tribune contains this article today.
Posted at 07:10 AM by Howard Bashman


"Publicity plays role on Muhammad jury; Most in pool know of sniper shootings": This article appears today in The Baltimore Sun.

And The Washington Post today contains an article headlined "Hedging Bets With a Montgomery Jury."
Posted at 07:04 AM by Howard Bashman



"Court Upholds Village's Ban on the Cows Down the Street": The New York Times contains this article today.
Posted at 06:55 AM by Howard Bashman


"The Next Filibuster? Republicans should welcome a judicial brawl." This editorial (free access) appears today in The Wall Street Journal.
Posted at 06:45 AM by Howard Bashman


"Support for Roe v. Wade Hits New Low, Poll Shows": The Wall Street Journal Online provides this report (free access) today.
Posted at 06:40 AM by Howard Bashman


Wednesday, May 03, 2006

"The Day After Roe: If the Supreme Court overturns Roe v. Wade, it will set off tectonic shifts in the American political landscape not seen since the civil-rights movement--or perhaps even the Civil War." Law Professor Jeffrey Rosen will have this lengthy article (subscription required for full access) in the June 2006 issue of The Atlantic Monthly. The magazine provides free online access to this interview with Professor Rosen about the article.
Posted at 10:44 PM by Howard Bashman


"Justice Scalia attends Mass in St. Louis": The St. Louis Post-Dispatch provides this news update.

And The Associated Press reports that "Justice Scalia says Supreme Court should take back seat to voters."
Posted at 10:35 PM by Howard Bashman



"Murder suspect may appeal case to Supreme Court, judge rules": The Burlington (Vt.) Free Press today contains an article that begins, "The man accused of killing a Winooski resident in the 1970s may appeal to the Supreme Court whether someone can be charged with murder if the victim dies more than a year after being injured, a judge has ruled."
Posted at 10:33 PM by Howard Bashman


Available online from law.com: An article reports that "Recusal Fight Highlights Judicial Election Concerns; The appeal of a $50M verdict involving key donor draws fire."

And in news from New York State, "Raging Bull No Liability for Owner."
Posted at 10:25 PM by Howard Bashman



"Salazar: Bush judicial nominee unqualified." The Rocky Mountain News provides an update that begins, "Sen. Ken Salazar on Wednesday called one of President Bush's pending judicial nominees unqualified and 'out of the mainstream,' but he said it's too early to say whether a filibuster will be needed to block the nomination. Senate Minority Leader Harry Reid, D-Nev., has said Democrats would attempt a filibuster -- an indefinite procedural delay -- to block the nomination of Terrence W. Boyle to the 4th Circuit Court of Appeals unless the president withdraws the pick."

And National Journal's "Hotline On Call" blog contains a post titled "Gang Of 14 Split On Kavanaugh?"
Posted at 10:20 PM by Howard Bashman



"Complex Martyr: The Zacarias Moussaoui jurors split the difference." Dahlia Lithwick has this jurisprudence essay online at Slate.
Posted at 09:04 PM by Howard Bashman


On this evening's broadcast of NPR's "All Things Considered": The broadcast contained segments entitled "Federal Jury Votes to Spare Moussaoui's Life"; "The Trial of Moussaoui, the Fight Against Terrorism"; and "No Model Client: Moussaoui's Lawyer Speaks" (RealPlayer required).
Posted at 08:50 PM by Howard Bashman


Today's rulings of note from the U.S. Court of Appeals for the Tenth Circuit: In the first of today's two rulings of note, the court rejects a First Amendment challenge to a federal regulation that prevented a Social Security Administration Administrative Law Judge from collecting royalties from the publisher of a textbook that the ALJ wrote on the subject of Social Security disability law. You can access today's ruling at this link.

And in today's other ruling of note, the court rules that "Title VII does not create a statutory right to the effective assistance of counsel."
Posted at 08:44 PM by Howard Bashman



After pleading guilty to offenses that carried the minimum sentence of life imprisonment without parole, and in light of today's jury verdict failing to recommend the death penalty, will Zacarias Moussaoui qualify as aggrieved from the sentence of life imprisonment such that he will have standing to appeal? For example, Moussaoui may wish to argue on appeal that he should have been able to serve as his own attorney during the sentencing phase of the trial. But since he will receive the minimum sentence for the crimes to which he has pleaded guilty, can Moussaoui appeal on that basis? Assume, for purposes of my question, that Moussaoui's guilty pleas waive all grounds for appeal challenging the guilt-or-innocence phase of the proceeding.

Anyone with particular insight into this question is invited to respond via email.
Posted at 08:24 PM by Howard Bashman



"Jurors Call for Life in Prison in Moussaoui Case": The Los Angeles Times provides this news update.
Posted at 07:58 PM by Howard Bashman


Access online the redacted jury verdict form that reflects the recommendation that Zacarias Moussaoui be sentenced to life imprisonment: The redacted jury verdict form delivered this afternoon in the U.S. District Court for the Eastern District of Virginia can be accessed here.
Posted at 07:55 PM by Howard Bashman


"How Moussaoui's sentencing trial ended with 'life'; The federal judge in the case is expected to formally sentence him Thursday morning": Warren Richey of The Christian Science Monitor provides this report.
Posted at 07:54 PM by Howard Bashman


"Contra-Contraception: A growing number of conservatives see birth control as part of an ailing culture that overemphasizes sex and devalues human life; Is this the beginning of the next culture war?" This upcoming Sunday's issue of The New York Times Magazine will contain this article (TimesSelect subscription required) by Russell Shorto.
Posted at 05:55 PM by Howard Bashman


"Jury Decides Against Execution for Moussaoui": The New York Times provides this news update.
Posted at 05:40 PM by Howard Bashman


View the announcement to the media of the Moussaoui verdict by the court's public information officer: The Associated Press provides this video (RealPlayer required).
Posted at 05:04 PM by Howard Bashman


"Jury Rejects Death Sentence for Moussaoui": The Washington Post provides this news update.
Posted at 04:54 PM by Howard Bashman


BREAKING NEWS -- Moussaoui to be sentenced to life imprisonment on all counts: The Associated Press reports that "Moussaoui Gets Life for Role in Sept. 11."
Posted at 04:35 PM by Howard Bashman


BREAKING NEWS -- "Verdict Reached in Moussaoui Sentencing": The Associated Press provides this report. The verdict is scheduled to be announced today at 4:30 p.m. Stay tuned for additional coverage.

The 42-page special verdict form that the jury was given for this phase of the proceeding can be accessed here.

In other coverage, CNN.com reports that "Jury reaches verdict in 9/11 trial; 9/11 trial ends after wrenching images, heartbreaking testimony."

The current installment of my "On Appeal" column for law.com is headlined "Considering a Likely Appeal in the Moussaoui Case."
Posted at 03:50 PM by Howard Bashman



Kenneth W. Starr and "Bong Hits 4 Jesus": The Juneau Empire today contains an article headlined, "'Bong Hits' to Supreme Court? School Board secures former Clinton investigator Kenneth Starr as pro bono attorney in attempt to reverse ruling in First Amendment banner case."

And The Associated Press reports that "Kenneth Starr to Take on Alaska Appeal."

My coverage of the Ninth Circuit's ruling in this case can be accessed here.
Posted at 03:48 PM by Howard Bashman



"Breyer Calls High Court 'Boundary Patrol'": The Associated Press provides a report that begins, "The job of a justice on the nation's highest court is to patrol the boundaries of American society, not to decide what kind of society it should have, Supreme Court Justice Stephen Breyer said Tuesday."

Yesterday, Justice Stephen G. Breyer delivered the Sidney Shainwald Public Interest Lecture at New York Law School. Additional details are available here and here, and you can view archived video of Justice Breyer's remarks by clicking here (Windows Media Player required).
Posted at 03:20 PM by Howard Bashman



"A Public Disservice: Senate Democrats unjustly and hypocritically attack Kavanaugh." Edward Whelan has this essay today at National Review Online.
Posted at 03:14 PM by Howard Bashman


"Landscape in Ala. Governor's Race Shifts": The AP provides a report that begins, "Roy Moore's unsuccessful fight to display the Ten Commandments and keep his job as Alabama's chief justice made him a national hero to religious conservatives three years ago. But Moore isn't getting treated like a hero in the state's topsy-turvy race for governor."
Posted at 02:54 PM by Howard Bashman


"Ginsburg: Congress' Watchdog Plan 'Scary.'" Gina Holland of The Associated Press provides a report that begins, "Supreme Court Justice Ruth Bader Ginsburg said Tuesday that a Republican proposal in Congress to set up a watchdog over the federal courts is a 'really scary idea.'"
Posted at 02:44 PM by Howard Bashman


In news and commentary from Oklahoma: The Tulsa World today contains an article headlined "Ten Commandments: Judge will rule on monument this month; Outside the courtroom, both sides expressed confidence in their arguments." And yesterday's edition of that newspaper contained an article headlined "U.S. court scene of biblical debate; Haskell County's Ten Commandments monument is criticized, defended."

The Oklahoman today contains an article headlined "Reason disputed for monument." Yesterday, the newspaper contained articles headlined "2 sides disagree on display's role" and "Atoka gets Ten Commandments display."

Meanwhile, in commentary, The Oklahoman today contains an editorial entitled "Displays vexing even to liberals." The editorial begins, "Look, there on the public square: It's a religious display! No, it's a mere historical marker! No, it's a legal conundrum. Are those courthouse Ten Commandments displays religious or historical? Take two tablets and call Moses in the morning. He started this thing. Better yet, call Solomon. His wisdom will be needed as judges part the arguments on whether the public square is a proper place for a display of text taken from the Bible."

And The Muskogee Daily Phoenix today contains an editorial entitled "Ten Commandments bill shows state religious bias."
Posted at 02:40 PM by Howard Bashman



"Log Cabin Republicans Re-File Federal Challenge to Don't Ask, Don't Tell Policy": That organization issued this press release yesterday.
Posted at 02:24 PM by Howard Bashman


"Bush and Frist Playing Right-Wing Politics with Judicial Nominations": The organization People For the American Way issued this statement today.

Meanwhile, for those in search of a different perspective, the U.S. Senate's Republican Policy Committee yesterday issued a document entitled "Summary of Judicial Nominations in the 109th Congress; Much Work to be Do Before Adjournment."
Posted at 02:11 PM by Howard Bashman



"Hearing vowed on Bush's powers; Senator questions bypassing of laws": Charlie Savage has this article today in The Boston Globe.
Posted at 02:10 PM by Howard Bashman


"'Gang' Set to Meet on Judges; Parties Circle Warily on Pair": Roll Call today contains an article (subscription required) that begins, "With the stage set for a confrontation over two controversial judicial nominations, Senators in the 'Gang of 14' are expected to meet in the coming days to chart a strategy regarding what role the bipartisan group will play in trying to avoid another ugly battle over filibusters."

Additional excerpts of the article are available at this post from "Confirm Them."
Posted at 11:55 AM by Howard Bashman



"Aptronym Watch: Sue Yoo Too! Meet a born lawyer." Timothy Noah has this chatterbox essay online at Slate.
Posted at 11:52 AM by Howard Bashman


Seventh Circuit denies rehearing en banc in case upholding taxpayer standing to challenge the use of money appropriated by Congress under Article I, section 8, to fund conferences that various executive-branch agencies hold to promote President Bush's "Faith-Based and Community Initiatives": You can access today's order at this link. Four judges dissented from the denial of rehearing en banc, while two others (who had they joined with the four dissenters would have sufficed to cause rehearing en banc to be granted on this eleven-judge court) concurred in the denial of rehearing en banc in opinions which explained that only the U.S. Supreme Court can clarify the morass that is taxpayer standing.

Circuit Judge Frank H. Easterbrook, in his concurring opinion, notes both that "The principal difficulty with arguments pro and con about taxpayer standing is that the doctrine is arbitrary" and "Perhaps Michael Newdow should have invoked his tax return, rather than his status as a father, to challenge the inclusion of 'under God' in the Pledge of Allegiance."

My earlier coverage of the divided three-judge panel's ruling in the case can be accessed here.
Posted at 11:45 AM by Howard Bashman



A federal criminal defendant's state court attorney malpractice lawsuit against his former federal court defense counsel is not subject to removal to federal court simply because the lawsuit entails a substantial evaluation of applicable federal law: Although a federal district judge in Illinois had upheld the removal, today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, in an opinion by Circuit Judge Richard A. Posner, vacates the judgment and orders the case remanded to state court.
Posted at 11:33 AM by Howard Bashman


"Judge Doubts Moussaoui's Claims About 9/11": The Associated Press provides this report.
Posted at 11:28 AM by Howard Bashman


Slot machine player on riverboat casino that had been moored for two years to a pier on a navigable portion of the Des Plaines River in Illinois may possess a claim arising under the federal district court's admiralty jurisdiction arising from injuries sustained when the stool she was leaning against collapsed: Circuit Judge Richard A. Posner issued this opinion today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit.
Posted at 11:25 AM by Howard Bashman


"Court Upholds Polygraph for Sex Offenders": The Associated Press provides a report that begins, "A federal appeals court ruled that lie detector tests can be used to ensure convicted sex offenders are obeying the rules of their probation and that a ban on Internet use is appropriate for some offenders."

You can access Monday's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 11:15 AM by Howard Bashman



"Juveniles in U.S. prisons win time-served right": Today in The San Francisco Chronicle, Bob Egelko has this article reporting on a ruling that the U.S. Court of Appeals for the Ninth Circuit issued yesterday.
Posted at 10:10 AM by Howard Bashman


"Faulty Testimony Sent 2 to Death Row, Panel Finds": The New York Times today contains an article that begins, "Faulty evidence masquerading as science sent two men to death row for arson in Texas and led to the execution of one of them, a panel of private fire investigators concluded in a report released Tuesday in Austin."

The Chicago Tribune today contains an article headlined "Report: Inmate wrongly executed; Arson experts say evidence in Texas case scientifically invalid."

In The Los Angeles Times, Henry Weinstein reports that "Panel Says Faulty Arson Evidence Led to Execution; A man was convicted of murdering his three children based on 'bad science,' its report says."

The Austin American-Statesman reports that "Texan executed on invalid evidence, experts say; Arson ruled out in fatal fire, report by Innocence Project concludes."

The Houston Chronicle reports that "Arson experts cite bad evidence in '04 execution; Report sought by the Innocence Project says fires were accidental."

The Dallas Morning News contains an article headlined "Was an innocent man put to death? Obsolete science led to arson conviction, center says; case reviews urged."

And The Fort Worth Star-Telegram reports that "Executed man's case challenged."
Posted at 09:10 AM by Howard Bashman



"Trouble Finding Inmate's Vein Slows Lethal Injection in Ohio": Adam Liptak has this article today in The New York Times.

The Cleveland Plain Dealer reports today that "Condemned killer complains lethal injection 'isn't working'; Ohio's executioners struggle 40 minutes to find a working vein."

And The Columbus Dispatch contains an article headlined "'It don't work,' inmate says during botched execution."
Posted at 09:00 AM by Howard Bashman



"RIM faces tough challenger in Visto": The Toronto Globe and Mail today contains an article that begins, "Visto Corp. may be a tougher legal opponent for Research In Motion Ltd. than the last firm that tried to shut down BlackBerry wireless operations in the United States."
Posted at 08:54 AM by Howard Bashman


"Lay Wraps Up His Testimony; Enron Founder Calls Bankruptcy 'Most Painful Thing' in Life": This article appears today in The Washington Post.

The Los Angeles Times reports today that "Enron's Former Chief Concludes Testimony; Kenneth Lay tries to undo damage done last week when a prosecutor revealed that Lay tried to contact witnesses."

The New York Times contains a news analysis headlined "Did Ken Lay Demonstrate Credibility?"

The Wall Street Journal reports that "Lay Defends His Business Practices At Enron Trial" (free access).

USA Today reports that "Lay says he loved Enron, workers; Prosecution raises $70 million in stock sales again."

And The Houston Chronicle contains articles headlined "Lay ends testimony saying he loved his company, workers; His 90 minutes on the stand cap six days in which exchanges often got contentious"; "Lawyers who saw Lay testify say abrasive way is ill-advised; One observer compares former Enron chairman to Richard Nixon"; and "Lay's attorney back in the hospital."
Posted at 07:32 AM by Howard Bashman



"Deliberations on Moussaoui's Fate Enter 7th Day": Neil A. Lewis has this article today in The New York Times.

The Washington Post reports today that "35 Hours of Discussion By Moussaoui Jurors Considered Lengthy."

And The Los Angeles Times reports that "Moussaoui Jury Enters Day 7; Speculation grows that the panel is unable to agree on whether the admitted Sept. 11 conspirator should get the death penalty."
Posted at 07:25 AM by Howard Bashman



"Malvo Reportedly Seeking Plea Deal in Sniper Trial": This article appears today in The Washington Post.

And The Baltimore Sun reports today that "Sniper could face Malvo; Prosecutors seek deal that would put Muhammad's companion on stand."
Posted at 07:22 AM by Howard Bashman



"Let the people see the court": The Chicago Tribune today contains an editorial that begins, "In February, the Supreme Court missed a great chance to expand popular interest in law."
Posted at 07:20 AM by Howard Bashman


"Mexico to Allow Use of Drugs; Fox will sign the bill, one of the world's most permissive policies, in a bid to curb trafficking; U.S. officials say it will lead to more addiction": The Los Angeles Times today contains an article that begins, "Mexican President Vicente Fox will sign a bill that would legalize the use of nearly every drug and narcotic sold by the same Mexican cartels he's vowed to fight during his five years in office, a spokesman said Tuesday."

The Chicago Tribune reports today that "U.S. critics try to smoke out clarity on Mexican drug bill."

And The San Antonio Express-News reports that "Mexico vows it won't become 'a paradise for drug users.'"
Posted at 07:14 AM by Howard Bashman



"Court Backs Experimental Drugs for Dying Patients": This article appears today in The Washington Post, along with an editorial entitled "A Court Makes Up a Right; The Founding Fathers and the FDA." My earlier coverage appears here.
Posted at 07:05 AM by Howard Bashman


"An Unqualified Judicial Nominee": The New York Times today contains an editorial that begins, "Senate Republicans have announced plans to push for a quick vote on Brett Kavanaugh, whose nomination for a powerful appeals court judgeship has languished since 2003."

And online at The American Spectator, Quin Hillyer has an essay entitled "Here Come Da Judge."
Posted at 06:55 AM by Howard Bashman



"Judge Boyle ruled fairly in GE case": This letter to the editor appears today in The News & Observer of Raleigh, North Carolina.
Posted at 06:52 AM by Howard Bashman


"How to influence judges": Today's edition of USA Today contains an editorial that begins, "Members of Congress aren't the only public officials who take lavish trips paid for by special interests with stakes in their decisions. Federal judges accept junkets, too. They're just better at keeping it quiet."
Posted at 06:50 AM by Howard Bashman


"No Way Out -- Trapped by Rules, The Mentally Ill Languish in Prison; For Such Felons, Parole Is Rare, Recidivism Is Probable; Lack of State Hospitals; 'It Scares the Hell Out of Me'": This front page article (free access) appears today in The Wall Street Journal.
Posted at 06:45 AM by Howard Bashman


"Sins of Omission: Why the Ninth Circuit Was Wrong to Excuse a Lack of Police Diligence." FindLaw commentator Sherry F. Colb has this essay today.
Posted at 06:40 AM by Howard Bashman


Tuesday, May 02, 2006

"Key Bush judge under ethics cloud; Following a Salon report, top Democrats say Bush nominee Terrence Boyle's record is 'outrageous' and has 'no place on the federal bench'": At Salon.com, Will Evans has this follow-up report, bearing tomorrow's date.
Posted at 10:50 PM by Howard Bashman


Today's award for affirmatively seeking to be subject to the jurisdiction of the U.S. Court of Appeals for the Ninth Circuit goes to Frances Marie Tydingco Gatewood: Details here and here.

Relatedly, the Ninth Circuit recently issued a news release entitled "Guam Supreme Court Justice Nominated for Federal Judgeship."
Posted at 10:45 PM by Howard Bashman



"In the Roberts Court, More Room for Argument": Linda Greenhouse will have this Supreme Court memo in Wednesday's edition of The New York Times.
Posted at 10:33 PM by Howard Bashman


"Acrimony Over Bush Judicial Nominations Resurfaces; Senate Democrats Threaten To Filibuster Conservative Duo": This article will appear Wednesday in The Washington Post.
Posted at 10:30 PM by Howard Bashman


The May 2006 issue of the University of Pennsylvania Law Review contains a memorial to Third Circuit Judge Max Rosenn: The memorial, consisting of essays from four of Judge Rosenn's former colleagues and one of Judge Rosenn's former law clerks, can be accessed here.
Posted at 10:25 PM by Howard Bashman


"N.J. High Court: Companies Have Duty to Warn Workers' Spouses of Asbestos Dust." law.com provides this report. My earlier coverage is here.
Posted at 10:22 PM by Howard Bashman


One-third of the Savage triumvirate speaks: Today's broadcast of the public radio program "Here & Now" contained a segment entitled "Bush and the Law" (RealPlayer required) featuring Charlie Savage of The Boston Globe. Of course, the other two members of the Savage triumvirate are Charlie's wife, Luiza Ch. Savage, formerly of The New York Sun and currently of Maclean's, and David G. Savage of The Los Angeles Times.
Posted at 09:10 PM by Howard Bashman


The Associated Press is reporting: Now available online are articles headlined "Reid Mulls Filibuster of Judicial Nominees"; "Malvo May Testify for Sniper Prosecution"; and "Secrecy Fight Delays Detainee Rules."
Posted at 08:12 PM by Howard Bashman


"In an important case on the rights of federal employees, the Supreme Court on Tuesday broadened its review to test the federal courts' power to impose added obligations to run through administrative machinery before taking a legal complaint to court." So begins Lyle Denniston's post this afternoon at "SCOTUSblog," reporting on an order that the U.S. Supreme Court issued today requesting supplemental briefing in a case argued earlier this Term.
Posted at 06:10 PM by Howard Bashman


"Bush in 'ceaseless push for power'": Today's edition of Financial Times contains an article that begins, "President George W. Bush had shown disdain and indifference for the US constitution by adopting an 'astonishingly broad' view of presidential powers, a leading libertarian think-tank said yesterday." An earlier, related post appears here.
Posted at 05:40 PM by Howard Bashman


"Moussaoui Jury Ends 6 Day With No Verdict": The Associated Press provides this report.
Posted at 05:20 PM by Howard Bashman


"Appeals Court Nominee May Face New Hearing": The Associated Press provides a report that begins, "White House aide Brett Kavanaugh told a Senate Judiciary Committee Democrat on Tuesday he did not play an active role in President Bush's secret domestic wiretapping program or in any dealings with convicted lobbyist Jack Abramoff."
Posted at 04:25 PM by Howard Bashman


"Slate's Jurisprudence: Mistrial Options in Lodi Case." This segment (RealPlayer required) featuring Dahlia Lithwick appeared on today's broadcast of NPR's "Day to Day."
Posted at 03:50 PM by Howard Bashman


"Man executed on disproven evidence, experts say": The Chicago Tribune provides a news update that begins, "Four of the nation's top arson experts have concluded that the state of Texas executed a man in 2004 based on scientifically invalid evidence, and they called for an official re-investigation of the case."

And The Associated Press reports that "Innocence project asks Texas to review arson convictions."

Back in December 2004, The Chicago Tribune published a lengthy article headlined "Texas man executed on disproved forensics; Fire that killed his 3 children could have been accidental."

The Innocence Project today issued a press release entitled "Innocence Project Submits Two Arson Cases to Texas Commission and Requests System-Wide Review; Filing Marks First Time an Empowered State Entity Has Been Given Scientific Evidence that an Innocent Person Was Executed." The report issued today can be accessed at this link.
Posted at 02:34 PM by Howard Bashman



"Court Dismisses US Airways Pilots' Suit": The Associated Press provides this report on a ruling that the U.S. Court of Appeals for the D.C. Circuit issued today.

And in other news from the D.C. Circuit, The AP reports that "Experimental Drug Case Gets Reprieve." My earlier coverage appears here.
Posted at 02:04 PM by Howard Bashman



This afternoon's Senate Judiciary Committee confirmation hearing will feature Ninth Circuit nominee Sandra Segal Ikuta: Details here. In addition, the hearing's start time has been moved up to 3 p.m. Articles providing background on the nominee can be accessed here and here.
Posted at 01:55 PM by Howard Bashman


"Calling All Plaintiffs": The Wall Street Journal today contains an editorial (free access) that begins, "Hey, did you hear? The Twombly case may go all the way to the Supreme Court."
Posted at 12:40 PM by Howard Bashman


"Clark succumbs to lethal injection after more than one hour delay": The Toledo Blade provides this news update.

And The Columbus Dispatch provides a news update headlined "Clark executed after delay."

Additional information can be accessed via the "Ohio Death Penalty Information" blog.
Posted at 12:05 PM by Howard Bashman



"Statement Of Sen. Patrick Leahy, Ranking Member, Judiciary Committee On Judicial Nominations": U.S. Senator Patrick J. Leahy (D-VT) issued this statement yesterday.
Posted at 11:40 AM by Howard Bashman


"The Judicial Filibuster, the Median Senator, and the Countermajoritarian Difficulty": Law Professors Michael B. Rappaport and John O. McGinnis have this essay (abstract offering link for download) online at SSRN (via "Legal Theory Blog").
Posted at 11:20 AM by Howard Bashman


"State of the Commonwealth's Courts": The Supreme Court of Pennsylvania issued this report yesterday, along with this press release announcing the report's issuance.
Posted at 11:10 AM by Howard Bashman


He said "no" to the Federal Circuit but may say "yes" to the Third: Today in The Legal Intelligencer, Shannon P. Duffy and Elizabeth Bennett have an article headlined "3rd Circuit Judge Roth To Take Senior Status At End of the Month" (subscription required) that reports, "Sources in the Delaware legal community said the leading contender to replace Roth is U.S. District Judge Kent A. Jordan, the most recent appointee to the U.S. District Court for the District of Delaware. Jordan recently turned down an appointment to the U.S. Court of Appeals for the Federal Circuit, and sources said a 3rd Circuit spot could be more to his liking."
Posted at 11:05 AM by Howard Bashman


"Sebelius swept into judicial controversy": The Lawrence Journal-World today contains an article that begins, "Gov. Kathleen Sebelius on Monday was drawn into the expanding controversy about communications between Kansas Supreme Court Justice Lawton Nuss and Senate President Steve Morris, R-Hugoton, on the school finance lawsuit."

The Kansas City Star reports today that "Sebelius revelation deepens court issue."

The Topeka Capital-Journal contains articles headlined "Sebelius knew of talks; Governor: Senator's comment was 'offhand and not specific'" and "Committee chairman picked; group to begin after session."

And The Wichita Eagle reports that "House starts court-talk inquiry; The head of the investigation is named as Gov. Sebelius says she was told in passing of the talks."
Posted at 11:00 AM by Howard Bashman



"Justices hear twist in eminent-domain dueling; In this case, Mount Laurel wants to save the land as open space; The township was an affordable-housing battleground": This article appears today in The Philadelphia Inquirer.
Posted at 10:44 AM by Howard Bashman


"Fire captains' discrimination suit reinstated": The Omaha World-Herald today contains an article that begins, "Two Omaha fire captains on Monday won a federal appeal of a lawsuit that claims they were discriminated against under the City of Omaha's affirmative action plan."

And The Associated Press reports that "Court revives suit against Omaha's affirmative action plan."

My earlier coverage is here.
Posted at 10:35 AM by Howard Bashman



Divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit recognizes substantive due process right for a mentally competent, terminally ill adult patient to access potentially life-saving post-Phase I investigational new drugs, upon a doctor's advice, even where that medication carries risks for the patient: Take that, Food and Drug Administration! You can access today's ruling at this link.
Posted at 10:05 AM by Howard Bashman


"Vogel Plea Documents in Milberg Weiss Clients Case": Via this post at "White Collar Crime Prof Blog," you can access the plea agreement and supporting documents filed recently in the U.S. District Court for the Central District of California.

In related coverage, law.com's Justin Scheck has an article headlined "Plea Deal Points to Milberg Partners."
Posted at 10:00 AM by Howard Bashman



"Justice Breyer Finds Anna Nicole Hot: If Supreme Court opinions were written for the cable news shows." Dahlia Lithwick has this low concept essay online at Slate.
Posted at 08:55 AM by Howard Bashman


"Report doesn't dim backing for Boyle; Judge accused of conflict of interest": The News & Observer of Raleigh, North Carolina today contains an article that begins, "North Carolina's two U.S. senators, both Republicans, expressed support Monday for the nomination of U.S. District Court Judge Terrence Boyle to a federal appeals court judgeship despite a recent report that Boyle ruled on cases involving companies in which he held investments." My earlier coverage is here.
Posted at 08:50 AM by Howard Bashman


"Former Playmate Wins Procedural Round in Fight Over Estate": Linda Greenhouse has this article today in The New York Times.

Today in The Los Angeles Times, David G. Savage reports that "Justices Side With Ex-Model, Keeping Alive Her Estate Claim; But the ruling concerns federal judges' power, not the merits of Anna Nicole Smith's petition for $474 million from her late husband."

In USA Today, Joan Biskupic reports that "Anna Nicole Smith wins latest round in dispute over estate."

In The Houston Chronicle, Patty Reinert reports that "High court rules in favor of former Playmate Smith; She can now tell a California panel why she should get millions from dead husband's estate."

And The Fort Worth Star-Telegram reports that "Supreme Court sides with celebrity."
Posted at 07:30 AM by Howard Bashman



"Public employee loses religious freedom case; Tehama County's limits on evangelical Christian upheld": Bob Egelko has this article today in The San Francisco Chronicle. My earlier coverage is here.
Posted at 07:23 AM by Howard Bashman


"Prosecutor Zeroes In on Ex-Enron Chief's Finances": This article appears today in The New York Times.

The Wall Street Journal reports today that "Lay Defends Family's Role In Selling Shares; Enron Ex-Chairman Says He Tried to Minimize Sales To Meet Margin Calls" (free access).

In The Houston Chronicle, Mary Flood reports that "Lay defends lavish habits and big cash withdrawals; Sparks again fly between the ex-Enron chief and prosecutor."

The Washington Post reports that "Attitude, Finances May Have Hurt Lay."

The Los Angeles Times reports that "Lay's Claim of Forced Stock Sales Is Attacked; The Enron ex-chairman didn't need the proceeds to pay down bank loans, prosecutors contend."

And USA Today reports that "Lay contends banks 'forced' majority of his stock sales."
Posted at 07:20 AM by Howard Bashman



"In Death Row Case, Justices Order Retrial Over Evidence": Linda Greenhouse has this article today in The New York Times.

Today in The Los Angeles Times, David G. Savage has an article headlined "High Court Win for Defendants; The justices overturn a murder conviction, saying South Carolina should not bar defense lawyers from fingering another suspect."

The Charlotte Observer reports that "Supreme Court rules in favor of S.C. inmate; State's high court didn't give proper weight to York County man's defense, justices say."

And The Rock Hill (S.C.) Herald reports that "New Trial for Holmes likely."
Posted at 07:14 AM by Howard Bashman



"Another Patent Case Is Filed Against Maker of BlackBerry": This article appears today in The New York Times.

The Wall Street Journal reports today that "New Patent Fight Looms for RIM Over BlackBerry" (free access).

The Toronto Globe and Mail reports that "RIM faces new U.S. fight over patents."

And The Los Angeles Times reports that "BlackBerry Maker May Start Feeling Picked On."
Posted at 07:05 AM by Howard Bashman



"Voided Death Sentence to Be Reconsidered": Today in The Los Angeles Times, David G. Savage has an article that begins, "The Supreme Court agreed Monday to hear another appeal by California prosecutors who are challenging a decision by the U.S. 9th Circuit Court of Appeals that voided a death sentence in a 25-year-old murder case."

And in The San Francisco Chronicle, Bob Egelko reports that "Top court to take up death sentence case; Justices to review validity of standard jury instructions."
Posted at 07:00 AM by Howard Bashman



"Views of jury pool trouble sniper; As his trial begins, Muhammad finds many say he killed six people in Md.": This article appears today in The Baltimore Sun.

And The Washington Post reports today that "Suspect's Notoriety Shrinks Jury Pool; Prospects Screened In Md. Sniper Trial."
Posted at 06:55 AM by Howard Bashman



"Appeals Judges Hear Subway Search Debate": The New York Times today contains an article that begins, "A federal appeals court panel challenged a civil liberties lawyer yesterday to explain how searching people's bags at random in city subways was different from searching passengers at airports, which has become standard practice to combat terrorism."
Posted at 06:48 AM by Howard Bashman


"The California Supreme Court Lets TV Comedy Writers Off the Hook for Sexual Harassment This Time, but Their Protection is Not Absolute": Joanna Grossman has this essay online today at FindLaw.
Posted at 06:40 AM by Howard Bashman


Monday, May 01, 2006

"Justices reject S.C. limit on defendant's case": Joan Biskupic will have this article Tuesday in USA Today.
Posted at 11:20 PM by Howard Bashman


"Justices Reinstate Smith's Claim": In Tuesday's edition of The Washington Post, Charles Lane will have an article that begins, "The Supreme Court handed a victory to former Playboy model Anna Nicole Smith in the battle over her late husband's fortune yesterday, ruling that the California federal courts that awarded her tens of millions of dollars had not exceeded their authority."

Tuesday's edition of The Guardian (UK) contains an article headlined "Anna Nicole Smith's victory in legacy fight."

And Reuters, via The Sydney Morning Herald, reports that "Anna may not go bust."
Posted at 10:40 PM by Howard Bashman



"9th Circuit says players protected by Constitution": The Associated Press provides a report that begins, "Eight members of the 2000-2001 Clatskanie High School basketball team were constitutionally entitled to criticize a coach whom they believed was being verbally abusive, a 9th Circuit Court of Appeals panel ruled in a decision issued Monday." My earlier coverage is here.
Posted at 10:35 PM by Howard Bashman


"Anna Nicole Smith scores Supreme Court win": The Fort Worth Star-Telegram provides this news update.

And Patty Reinert of The Houston Chronicle provides a news update headlined "Anna Nicole Smith wins Supreme Court ruling."
Posted at 09:14 PM by Howard Bashman



"Complaint against justice dismissed": The Associated Press provides a report that begins, "A state judicial panel has dismissed a complaint that accused state Supreme Court Justice Tom Parker of violating the standards of conduct for Alabama judges by writing a newspaper commentary critical of his fellow justices."
Posted at 09:08 PM by Howard Bashman


On this evening's broadcast of NPR's "All Things Considered": The broadcast contained segments entitled "Supreme Court Sides with Anna Nicole Smith" (featuring Nina Totenberg) and "Lay Ends Testimony; Character Witnesses Next." RealPlayer is required to launch these audio segments.
Posted at 09:00 PM by Howard Bashman


"U.S. Supreme Court asked to rule on Tennessee's 'Choose Life' license plates": The Tennessean provides a news update that begins, "The American Civil Liberties Union of Tennessee today asked the U.S. Supreme Court to take up Tennessee's 'Choose Life' license plate." For reasons that I have previously explained here, this case has a very good likelihood of obtaining U.S. Supreme Court review.
Posted at 08:55 PM by Howard Bashman


Justice John Paul Stevens sneaks bosom reference into his separate opinion in the Anna Nicole Smith case: But since the reference was in Latin, it fell to Steve Vladeck of "PrawfsBlawg" to explain the matter.
Posted at 08:38 PM by Howard Bashman


"John Roberts, Samuel Alito, and Second-Principles Conservatism": Orin Kerr has this post at his solo blog.
Posted at 08:33 PM by Howard Bashman


The Associated Press is reporting: Gina Holland reports that "Supreme Court Rejects Abortion Poster Case."

In other news, "Long Deliberations Seen to Favor Moussaoui."

And an article reports that "Jury Selection Begins in Sniper's 2nd Trial."
Posted at 08:30 PM by Howard Bashman



"Power Surge: The Constitutional Record of George W. Bush." The Cato Institute has today issued this white paper by Gene Healy and Timothy Lynch.
Posted at 04:50 PM by Howard Bashman


Stephen Colbert roasts President Bush (and has a few words for Justice Antonin Scalia, too): The comedian's interaction with Justice Scalia (who can be seen laughing in response to Colbert's remarks) appears approximately two-thirds of the way through this video clip.
Posted at 04:40 PM by Howard Bashman


"Alito Pens First Opinion as a Supreme Court Justice; Court Also Rules in Favor of Anna Nicole Smith": law.com's Tony Mauro provides this news update.
Posted at 04:10 PM by Howard Bashman


"Anna Nicole Smith wins over justices; Former Playmate can pursue share of late husband's millions": CNN.com provides this report.
Posted at 03:48 PM by Howard Bashman


"Plea Deal Points to Milberg Partners": Justin Scheck today has this report at law.com.
Posted at 03:40 PM by Howard Bashman


The principal is your pal, at least half the time: A reader emails:
Not only does the Ninth Circuit's Pinard case break new ground--high school basketball players have a right to free speech!! Who knew?--but the opinion contains a priceless misspelling: principle for principal, on p. 4911. I would have thought that the Court would have taken special care to spell it right in this one. Guess not.
To the court's credit, principal is spelled correctly on page 4913. My earlier coverage of this ruling appears here.
Posted at 03:30 PM by Howard Bashman


"Anna Nicole Smith Scores Supreme Court Win": The Los Angeles Times provides this news update.
Posted at 02:28 PM by Howard Bashman


"Of pain and punishment: Concerns have been raised about Florida's lethal injection regime that should be addressed by lawmakers rather than wait for a high court ruling." This editorial appears today in The St. Petersburg Times.

And online at Reason, Ronald Bailey has an essay entitled "Killing Me Softly: Is 'putting down' a murderer 'cruel and unusual'?"
Posted at 02:25 PM by Howard Bashman



"We hold that the district court erred in adopting from the government employment context the public concern standard for determining whether the First Amendment protects student speech." The U.S. Court of Appeals for the Ninth Circuit issued this opinion today. The opinion begins, "This student speech case arises from a school district's suspension of student athletes from its high school varsity basketball team. The students allege that the school district and various school officials violated their First Amendment free speech rights by suspending them in retaliation for speaking out against their coach."
Posted at 01:35 PM by Howard Bashman


"[W]e conclude that the Department has successfully navigated between the Scylla of not respecting its employee's right to the free exercise of his religion and the Charybdis of violating the Establishment Clause of the First Amendment by appearing to endorse religion." Circuit Judge Consuelo M. Callahan today issued this opinion on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit.
Posted at 01:30 PM by Howard Bashman


"Kin of alleged victim ejected from sniper trial; Man asked to leave courtroom after shouting obscenities at Muhammad": The Baltimore Sun provides this news update.
Posted at 12:25 PM by Howard Bashman


"I Was Juan Non-Volokh": Jonathan H. Adler has this post today at "The Volokh Conspiracy."
Posted at 12:08 PM by Howard Bashman


Three-judge Eighth Circuit panel finds merit in reverse discrimination claim challenging the 2002 Affirmative Action Plan of Omaha, Nebraska's fire department: Today's ruling holds that "[t]he promotional decisions at issue thus were the result of racial classifications that were not narrowly tailored to remedy identified past discrimination."
Posted at 11:33 AM by Howard Bashman


"A sex toy story: Fabled San Francisco co-op Good Vibrations brought 'adult novelties' out of the closet in the 1970s; Now it's ditching its socialist roots to try to grab its share of the billion-dollar industry it spawned." This article appears in the current issue of Business 2.0 Magazine. I recently explored the appellate aspect of sex toy litigation in a column that you can access here.
Posted at 11:05 AM by Howard Bashman


"Chief justice has revolutionized California's judiciary; George marks 10th year as leader of court system": The San Diego Union-Tribune contains this article today.
Posted at 10:40 AM by Howard Bashman


"Death Sentence Could Challenge Both Sides; If Moussaoui seeks to be executed, will lawyers -- and feds -- oblige?" This article appears in today's issue of Legal Times.

This week's installment of my "On Appeal" column for law.com takes a look at a likely appeal in the Moussaoui case.
Posted at 10:25 AM by Howard Bashman



Today's U.S. Supreme Court decisions in argued cases and Order List: The Court today issued three decisions in argued cases.

1. Justice Samuel A. Alito, Jr. delivered the opinion for a unanimous Court in Holmes v. South Carolina, No. 04-1327. This is Justice Alito's first opinion as a U.S. Supreme Court Justice. You can access the syllabus here; Justice Alito's opinion here; and the oral argument transcript here.

2. Justice Ruth Bader Ginsburg delivered the opinion of the Court in Marshall v. Marshall, No. 04-1544, more famously known as the Anna Nicole Smith case. You can access the syllabus here; Justice Ginsburg's opinion of the Court here; Justice John Paul Stevens' opinion concurring in part and concurring in the judgment here; and the oral argument transcript here.

3. Finally, Justice Stevens delivered the opinion for a unanimous Court in Arkansas Dept. of Health and Human Servs. v. Ahlborn, No. 04-1506. You can access the syllabus here; Justice Stevens' opinion here; and the oral argument transcript here.

In early news coverage of today's developments, Gina Holland of The Associated Press reports that "Supreme Court Backs Ex-Playmate's Effort." And The AP also reports that "Court Says Defendants Can Blame Others" and "Court Limits States Seeking Medical Costs."

You can access today's Order List at this link. The Court granted review in one case.

And at "SCOTUSblog," Lyle Denniston has a post titled "Alito's first opinion; Court rules on probate case."
Posted at 10:04 AM by Howard Bashman



"Ready to Rumble: The justices, sometimes with vulgar hand gestures, are lashing back at their critics; Is that such a bad thing?" Tony Mauro has this article in the May 2006 issue of The American Lawyer.
Posted at 09:59 AM by Howard Bashman


The Associated Press is reporting: Now available online are articles headlined "2nd Week of Moussaoui Deliberations Begin" and "Jury Selection to Begin in 2nd Sniper Case."
Posted at 09:58 AM by Howard Bashman


"Controversial Bush judge broke ethics law; A Salon/CIR investigation reveals that Terrence Boyle, a key circuit court nominee touted by the White House and Senate Majority Leader Bill Frist, ruled in multiple cases involving corporations in which he held investments": Will Evans has this article today at Salon.com.

And The News & Observer of Raleigh, North Carolina today contains a related article headlined "Claims put Boyle's new bench seat at risk."
Posted at 09:55 AM by Howard Bashman



"High court to decide if woman can sue pastor": The Fort Worth Star-Telegram today contains an article that begins, "In a local case that could have broad implications for First Amendment rights, the Texas Supreme Court will review a lower court ruling allowing a woman to sue her minister after he divulged details from her marriage counseling sessions to his congregation."
Posted at 09:02 AM by Howard Bashman


"Blawg Review #55": SoloBlawg.com hosts this week's installment, which appears to be a day-long work in progress.
Posted at 08:50 AM by Howard Bashman


"Mr. Moussaoui's Punishment: When prosecutors and a defendant are eager for a death sentence, think twice." The Washington Post contains this editorial today.

And the brand new installment of my "On Appeal" column for law.com is headlined "Considering a Likely Appeal in the Moussaoui Case."
Posted at 07:28 AM by Howard Bashman



"Lethal injection challenges mount; Penalty isn't issue - just the drugs used": This article appears today in The Dallas Morning News.
Posted at 07:25 AM by Howard Bashman


"Abortion law puzzles even judges; Starts today: Clinics rush to train people to help pregnant teens navigate new guidelines." The Salt Lake Tribune today contains an article that begins, "A few months ago, Utah lawmakers were baffled about legislation requiring a parent's consent before a teen can get an abortion. Abortion-rights advocates and foes struggled to figure out the bill as it wound through Capitol Hill. And now the confusion is carrying over to judges who have to translate it during real-life cases."
Posted at 07:20 AM by Howard Bashman


"ACLU making bid for monument removal; Recent court decisions may be on the side of Haskell County's display of the Ten Commandments": The Tulsa World contains this article today.
Posted at 07:15 AM by Howard Bashman


"Shaky Performance -- At the Enron Trial, Strange Stumbles Mar Lay's Defense; Team Seems Caught Off Guard At Times and Ex-Chairman Gets Testy, Even to Counsel; 'You Guys Are Pretty Thorough'": This front page article (free access) appears today in The Wall Street Journal.

And The Houston Chronicle reports today that "Trial getting personal for Lay; Defense to call pastors, friends; Skilling's team lines up experts."
Posted at 07:12 AM by Howard Bashman



"Breyer calls for 'active' democracy": The Daily Princetonian contains this article today.

And The Trenton Times today contains an article headlined "Justice summons active citizenship; Breyer: 'We do need activist citizens.'"
Posted at 06:58 AM by Howard Bashman



"Pulling Back From The Brink: Why are death sentences and executions dropping?" This article appears in the May 8, 2006 issue of U.S. News & World Report.
Posted at 06:48 AM by Howard Bashman


"Can Schools Punish Students for Posting Offensive Content on MySpace and Similar Sites? Often, the Answer Is No, Unless The Posting Materially Disrupts School Activities." Anita Ramasastry has this essay online today at FindLaw.
Posted at 06:44 AM by Howard Bashman


"Alito May Tilt Vote in Reargued Cases": You can access today's installment of Charles Lane's "Full Court Press" column, as published in The Washington Post, at this link.
Posted at 06:40 AM by Howard Bashman



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