How Appealing

Thursday, June 26, 2008

"Justices Rule for Individual Gun Rights": Linda Greenhouse of The New York Times has this news update.
Posted at 09:27 PM by Howard Bashman

"Court denies Gatlin's appeal on Olympic trials": The Associated Press provides a report that begins, "A federal court has denied sprinter Justin Gatlin's appeal to run in the U.S. Olympic track trials this weekend. The 11th U.S. Circuit Court of Appeals said Thursday that Gatlin has not shown he meets the 'applicable standard for such an injunction.'"
Posted at 06:14 PM by Howard Bashman

And speaking of singular versus plural: Late last night, in response to the update to this post of mine from yesterday, I received the following email from Seventh Circuit Judge Richard A. Posner:
Dear Prof. Bashman, to say "ostriches hide their heads in the sand" would imply that each ostrich had more than one head.

Richard Posner

P.S. And yes, canards fly--glad you caught the pun.

Of course, it could be said that Judge Posner's sentence, which states that "The reference of course is to the legend that ostriches when frightened bury their head in the sand," implies that multiple ostriches share a single head, just as some conjoined twins sometimes share a single bodily organ. One solution is to rewrite the sentence in the singular, although that might require assigning a gender to the ostrich in question or using the "his or her" construct.
Posted at 04:55 PM by Howard Bashman

There are two side to every story: Now that the U.S. Supreme Court has completely corrected the typos contained in the original version of District of Columbia v. Heller, No. 07-290, that were noted in this earlier post, a different reader emails:
Here's another one for you to bring to the Court's attention: On page 49 of the majority writing, line 9, it quotes the Stevens dissent as "on both side of the issue"; page 4 of the dissent (line 2 of first full paragraph) actually says "sides".

Thanks for your great blog that keeps all of us so well informed!

The passage in question from Justice John Paul Stevens' dissent that is slightly misquoted in Justice Antonin Scalia's majority opinion actually states, "Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself, see Mitchell v. W. T. Grant Co., 416 U. S. 600, 636 (1974) (Stewart, J., dissenting), would prevent most jurists from endorsing such a dramatic upheaval in the law."
Posted at 04:45 PM by Howard Bashman

Seventh Circuit reverses a federal district court's class certification in lawsuit challenging traveler watch lists maintained by the Department of Homeland Security: In today's unanimous opinion on behalf of a three-judge panel, Chief Judge Frank H. Easterbrook observes that "[t]he classes certified in this case are equivalent to a class of 'all persons in the United States who have been, or ever will be, stopped without probable cause' certified in an effort to take control of how the police investigate crime and make arrests."
Posted at 04:35 PM by Howard Bashman

Once again, it all depends on what the meaning of "is" is: The majority on a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today issued a decision that begins, "This appeal presents the single, seemingly straightforward question whether the word 'is' really means 'is,' at least as that word is employed in 25 U.S.C. sec. 81." An arguably related YouTube clip can be accessed here.
Posted at 04:15 PM by Howard Bashman

"Court of Appeals Mourns Passing of Senior Circuit Judge Warren J. Ferguson": The U.S. Court of Appeals for the Ninth Circuit issued this news release today. As noted in his Federal Judicial Center biography, he joined the Ninth Circuit in 1979.
Posted at 04:05 PM by Howard Bashman

"This case requires us to consider whether Comcast may be taxed as a telephone business when providing Internet service." In a ruling issued today, a unanimous Washington State Supreme Court answers "no."
Posted at 03:10 PM by Howard Bashman

"Supreme Court asserts broad gun rights; The historic 5 to 4 ruling says the right to bear arms applies to individuals": Warren Richey will have this article Friday in The Christian Science Monitor.
Posted at 03:05 PM by Howard Bashman

"Supreme Court strikes down 'millionaires amendment'": Michael Doyle of McClatchy Newspapers has this report.

And at his "Election Law Blog," Law Professor Rick Hasen has a post titled "Initial Thoughts on FEC v. Davis: The Court Primes the Pump for Striking Down Corporate and Union Campaign Spending Limits and Blows a Hole in Effective Public Financing Plans."
Posted at 01:24 PM by Howard Bashman

"Supreme Court: Scalia and Stevens Duke It Out." At "The BLT: The Blog of Legal Times," Tony Mauro has a post that begins, "It was an extraordinary 23-minute-long scene at the Supreme Court this morning as Justice Antonin Scalia read from his majority opinion in D.C. v. Heller and then Justice John Paul Stevens read from his unusually pointed dissent."
Posted at 01:22 PM by Howard Bashman

"Supreme Court rules in favor of individuals' 2nd Amendment gun rights; Striking down part of a handgun ban in Washington, D.C., the 5-4 decision is the first in the court's history to void a gun law based on the 2nd Amendment; Dissenters predict an influx of lawsuits": David G. Savage of The Los Angeles Times has this news update.

Michael Doyle of McClatchy Newspapers reports that "Supreme Court shoots down D.C. gun ban."

And Bill Mears of reports that "High court strikes down gun ban."
Posted at 01:18 PM by Howard Bashman

"Supreme Court Strikes Down D.C. Ban on Handguns": Robert Barnes of The Washington Post has this news update.

Greg Stohr of Bloomberg News reports that "Individual Gun Rights Protected, Top U.S. Court Says."

And James Vicini of Reuters reports that "US top court finds individual right to own guns."
Posted at 12:05 PM by Howard Bashman

Don't "dissemble" on guns: Today's Second Amendment ruling of the U.S. Supreme Court in District of Columbia v. Heller, No. 07-290, was eagerly awaited and certainly will be closely scrutinized over the days, weeks, months, and years to come.

And the close scrutiny has already begun, as a reader emails to note a typo found on the very first page of Justice Antonin Scalia's majority opinion:

Not for attribution, but because you get results...

In the first paragraph of his opinion (after the intro), Justice Scalia quotes one of the relevant DC statutes as saying that long guns must be kept "unloaded and dissembled...." The correct word is "disassembled" (I checked the statute); "dissemble" means to mislead or put on a false appearance.

Thanks to this reader for drawing this to my attention. If there's a lesson here, it's that just because text appears in an opinion or brief between quotation marks doesn't mean that the text shouldn't be double-checked for accuracy. And kudos to the author of the opinion's syllabus for preserving the same typo there, in the very first sentence.

By contrast, on page 12 of his dissenting opinion, Justice Stephen G. Breyer correctly quotes the "unloaded and disassembled" language actually found in the statute. Finally, and in his defense, Justice Scalia correctly quotes that language from the D.C. statute on page 58 of the majority opinion.

Update: The Court has corrected the typo on page 1 of Justice Scalia's majority opinion, although the typo remains for the time being in the syllabus. The original version of Justice Scalia's majority opinion, containing the typo, can be accessed here.
Posted at 11:50 AM by Howard Bashman

Today's rulings of the U.S. Supreme Court in the final three undecided argued cases from this Term: "SCOTUSblog" is live-blogging this morning's developments in a post you can access here.

1. Today's first ruling issued in Davis v. Federal Election Comm'n, No. 07-320. Justice Samuel A. Alito, Jr. delivered the opinion of the Court. You can access the opinion at this link and the oral argument transcript at this link.

2. Today's second ruling issued in Morgan Stanley Capital Group Inc. v. Public Utility Distr. No. 1 of Snohomish Cty., No. 06-1457. You can access the opinion at this link and the oral argument transcript at this link. Justice Antonin Scalia delivered the opinion of the Court. This means that either he, Justice John Paul Stevens, or the Chief Justice is the author of the Court's only remaining decision, involving the Second Amendment.

3. Today's third and final ruling issued in District of Columbia v. Heller, No. 07-290. The Court has affirmed the D.C. Circuit's ruling, which invalidated the District of Columbia's gun ban under an individual rights view of the Second Amendment. Justice Scalia delivered the opinion of the Court, which decided the case by a 5-4 margin. Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer joined in lengthy dissents that both Justice Stevens and Justice Breyer wrote. You can access the opinion at this link and the oral argument transcript at this link. Justice Scalia's majority opinion contains citations to three articles about the Second Amendment written by Law Professor Eugene Volokh, whose blog you can access here.

In early news coverage, The Associated Press reports that "Court rules in favor of Second Amendment gun right" and "Supreme Court strikes down 'millionaire's amendment'."

And at "SCOTUSblog," Lyle Denniston has a post titled "Court: A constitutional right to a gun."
Posted at 10:01 AM by Howard Bashman

"Judge rejects court order to improve VA's treatment for post-traumatic stress disorder; Despite 'significant' delays, inadequate care or benefits for veterans was not done systematically, he rules; An appeal is planned": The Los Angeles Times today contains an article that begins, "A federal judge in San Francisco ruled Wednesday that although the Department of Veterans Affairs might have provided inadequate care or benefits to some veterans with post-traumatic stress disorder, the department had not done so systematically."

And today in The San Francisco Chronicle, Bob Egelko reports that "Judge rules court won't step in to aid vets."

Yesterday, the U.S. District Court for the Northern District of California issued this decision and this judgment in the case.
Posted at 09:57 AM by Howard Bashman

"Supreme Court overturns L.A. murder conviction; Justices' 6-3 ruling in a domestic violence case makes it more difficult for prosecutors to use victims' previous statements to police": David G. Savage has this article today in The Los Angeles Times.

The Washington Post reports today that "Right to Face Accusers Is Affirmed in Unusual Case; Witness Was Murder Victim."

And The Mobile Press-Register reports that "Decision could affect local case; Defendant's right to confront accuser in court may have some bearing in sex abuse trial."
Posted at 09:42 AM by Howard Bashman

"High Court To Announce Ruling on D.C. Gun Ban": The Washington Post today contains an article that begins, "With its term coming to an end, the U.S. Supreme Court this morning is expected to issue its ruling on the District's handgun-ownership ban in a case that could result in a landmark interpretation of the Second Amendment."

And The Associated Press reports that "Supreme Court to issue decision on D.C. gun case."

Stay tuned for complete coverage of today's U.S. Supreme Court rulings in the final three undecided argued cases from this Term. The Court will begin announcing its rulings on these cases at 10 a.m. eastern time today.
Posted at 09:20 AM by Howard Bashman

"Damages Cut Against Exxon in Valdez Case": Adam Liptak has this front page article today in The New York Times. The newspaper also contains an article headlined "In Alaska, Rage and Sorrow Over Decision."

Today in The Washington Post, Robert Barnes has a front page article headlined "Justices Slash Damages for Exxon Oil Spill."

In The Los Angeles Times, David G. Savage reports that "Supreme Court greatly reduces damages in Exxon Valdez spill; The oil giant must pay $507 million -- about one-tenth of the original jury award -- to punish it for recklessly putting a known alcoholic in charge of the supertanker in Alaska." The newspaper also contains an article headlined "Valdez ruling pains many in Cordova, Alaska; The reduction in punitive damages means fewer people in the fishing village will be able to retire or stave off bankruptcy."

In USA Today, Joan Biskupic reports that "5-3 ruling slashes $2.5B penalty in Exxon Valdez case; Majority: Punitive fine shouldn't top actual damages."

In The Wall Street Journal, Russell Gold and Jess Bravin have a front page article headlined "Exxon Oil-Spill Damages Slashed by Supreme Court; Decision Could Shape How Punitive Awards Are Calculated."

The Anchorage Daily News contains articles headlined "Exxon Valdez: 'This is it; it's done'"; "Plaintiffs react to Exxon decision"; "Decision torments Cordova fishermen"; "Alaskans less than happy; At least, some say, the stress of waiting is over": and "Even Exxon gets chunk of money; A side deal lets the oil company benefit along with fishermen, communities, lawyers." The newspaper also contains an editorial entitled "Exxon verdict: Supreme Court makes life easier for corporate wrong-doers."

The Seattle Times reports that "Supreme Court drastically cuts payouts for plaintiffs in Exxon Valdez oil spill."

The Seattle Post-Intelligencer reports that "Exxon damages slashed; West Coast fishermen devastated by high court's oil spill ruling."

The Oregonian reports that "Exxon Valdez ruling cuts payment to Oregon fishermen; Supreme Court slashes punitive damages tenfold, to $500 million."

In The San Francisco Chronicle, Bob Egelko reports that "Ruling cuts Exxon spill victims' payout again."

And's Tony Mauro reports that "Supreme Court Reduces Damages Awarded in Exxon Case."
Posted at 09:03 AM by Howard Bashman

"Justices Bar Death Penalty for the Rape of a Child": Linda Greenhouse has this article today in The New York Times. The newspaper also contains an editorial entitled "Anger and Restraint."

Today in The Washington Post, Robert Barnes has a front page article headlined "High Court Rejects Death For Child Rape; Penalty Reserved for Murder And Crimes Against State."

In USA Today, Joan Biskupic reports that "Justices reject death penalty for child rapists; Court limits use of capital punishment." The newspaper also contains an editorial entitled "Child rapist escapes death but not tough justice."

In The Chicago Tribune, James Oliphant reports that "Court curbs death penalty; Justices rule 5-4 that child rape is not capital crime."

The Washington Times reports that "Louisiana vows to nullify child-rape ruling; Justices deem death penalty too harsh for crime."'s Tony Mauro reports that "Justices Reject Death Penalty for Child Rapists."

The Times-Picayune of New Orleans contains an article headlined "No death for child rapists, court says; Sentence overturned for Harvey man."

The Advocate of Baton Rouge, Louisiana reports that "High court rules out death for child rape."

The Austin American-Statesman reports that "Court ruling weakens child-rape law in Texas; Death penalty provision in so-called Jessica's Law is erased."

The Dallas Morning News reports that "Supreme Court tosses out death penalty for child rapists."

The Fort Worth Star-Telegram reports that "States can't give death penaly for child rape."

The San Antonio Express-News reports that "High court rules child rapists can't be executed."

The Houston Chronicle reports that "Most aspects of Jessica's Law are untouched."

The Oklahoman reports that "Rape ruling may nullify state's law."

The Los Angeles Times contains an editorial entitled "No death penalty for child rape: The Supreme Court made the right decision by rejecting execution for nonlethal crimes."

And The New York Sun contains an editorial entitled "Kennedy v. Louisiana."
Posted at 08:32 AM by Howard Bashman

"Bush Misread War-Powers Cases": Today in The Wall Street Journal, Jess Bravin has an article that begins, "At the Supreme Court, it has become a biennial ritual: The Bush administration loses a major war-powers case. In 2004, 2006 and again this month, the justices rejected the president's claim that he can effectively do as he wishes with prisoners he designates as 'enemy combatants.' With the third and most-recent rebuke, it has become clear that the president's counterterrorism strategy rested on a critical legal miscalculation."

You can freely access this article, without a subscription to, by searching Google News for "Jess Bravin."
Posted at 08:22 AM by Howard Bashman

"Exxon, Medtronic Win in Business-Friendly Supreme Court Term": Greg Stohr of Bloomberg News has this report.
Posted at 08:15 AM by Howard Bashman

"Cleary Seeks Vindication in Appeal on Sanctions": Online at, you can access an article that begins, "It was a matter of honor that brought Cleary Gottlieb Steen & Hamilton to the 2nd U.S. Circuit Court of Appeals Wednesday morning. Lawyers from the firm, led by managing partner Mark Walker, filled many of the gallery seats in the ceremonial courtroom of the Daniel Patrick Moynihan U.S. Courthouse."
Posted at 08:14 AM by Howard Bashman

"Customs Agents Copy Travelers' Laptop, Phone Data; 'It Is Clear Most People Regard This as a Serious Privacy Invasion'": Today in The New York Sun, Josh Gerstein has an article that begins, "Americans coming home from business trips or vacations abroad are unwittingly offering the federal government a valuable souvenir: a copy of all the data on their laptops, digital cameras, and cell phones."

Today in The Los Angeles Times, Jim Puzzanghera reports that "Laptop seizures at customs raise outcry; Complaints from travelers and privacy advocates have spurred lawmakers to challenge the policy of random inspections."

And McClatchy Newspapers report that "U.S. border agents copying contents of travelers' laptops."
Posted at 08:11 AM by Howard Bashman

"The Virginia Supreme Court Enforces Vermont's Custody and Visitation Order Regarding a Same-Sex Couple's Child: Why an Anti-Same-Sex-Marriage State Recognized a Same-Sex Union For This Purpose." Joanna Grossman has this essay online at FindLaw.
Posted at 07:52 AM by Howard Bashman

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