How Appealing

Thursday, July 3, 2008

"Telling Doctors What To Think: South Dakota's unbelievable new abortion law." Emily Bazelon has this jurisprudence essay online at Slate.
Posted at 08:57 PM by Howard Bashman


"Judicial Screener, Now a Nominee, Faces Scrutiny": Adam Liptak will have this article Friday in The New York Times.
Posted at 06:15 PM by Howard Bashman


"Court: Homelessness no excuse to remove child; A Miami appeals court ruled that the state's child-welfare agency cannot take a child away from a parent simply because the parent is homeless." This article appears today in The Miami Herald.

You can access yesterday's ruling of Florida's Third District Court of Appeal at this link.
Posted at 03:24 PM by Howard Bashman



"Detainee asks judge to delay 1st Guantanamo trial": The Associated Press provides a report that begins, "Lawyers for Osama bin Laden's former driver Salim Hamdan asked a civilian judge Thursday to delay his military trial."

And at "SCOTUSblog," Lyle Denniston has a post titled "New challenge to war crimes trials."
Posted at 03:20 PM by Howard Bashman



Ninth Circuit grants rehearing en banc to reexamine whether the U.S. Congress in 1991 validly abrogated States' sovereign immunity when Congress made States subject to private damage claims under the Government Employee Rights Act: You can access today's order granting rehearing en banc at this link.

Back in November 2007, a divided three-judge panel held by a 2-1 vote that Congress did not validly abrogate state sovereign immunity. My earlier coverage of that ruling can be accessed here.
Posted at 03:10 PM by Howard Bashman



When is it reasonable to enhance an attorneys' fee for exceptional results in a federal civil rights class action? Eleventh Circuit Judge Ed Carnes has today issued what many in the class-action bar, and elsewhere, will find to be a must-read decision calling into question the validity of attorneys' fee enhancements for so-called "exceptional" litigation results.

To quote just one passage from the decision (some additional paragraph breaks added):

A result that obtains more or better relief than plaintiffs are entitled to receive under the law is, to the extent it exceeds their entitlement on the merits, analogous to relief on a meritless claim. Just as Dague instructs us that fee awards should not underwrite efforts to obtain relief where none is due under the law, neither should they underwrite efforts to receive more or better relief than that due under the law. Just as the societal costs for fee awards for non-meritorious claims are too high, so also are they too high for results that exceed what the law allows. Just as encouraging non-meritorious claims cannot have been an objective of the fee-shifting provisions, neither can encouraging results that go beyond what the law allows have been an objective.

To put it in an either-or manner, superb results are either what a fair application of the law produces, which means that they are not truly "superb," or they are results that exceed what the law allows and for that reason are beyond the purpose of the fee-shifting statutes. Those statutes are designed to provide a reasonable fee for a reasonable result, not an extraordinary fee for a result that goes beyond what the law would provide if the claims were litigated to their correct conclusion on the merits.

Look at it this way. A merits-exceeding result for plaintiffs must be the product of one, or some combination, of the following factors: superior lawyering by plaintiffs' counsel, bad lawyering by defendants' counsel, poor decision making by the court, or dumb luck.

The Supreme Court held in Delaware Valley I that superior lawyering by the plaintiffs' counsel is not a proper basis for an enhancement. Delaware Valley I, 478 U.S. at 565-68, 106 S. Ct. at 3098-100. So, the first possible cause of results that go beyond the merits cannot be used to justify an enhancement.

Nor can it plausibly be argued that plaintiffs' attorneys ought to reap a windfall, and defendants ought to have to pay more in fees than they otherwise should, because of bad lawyering on the defense side. Surely a defendant suffers enough from the additional relief granted against it because of inferior representation without making the defendant pay a surcharge to the other side for the privilege of having been the victim of bad lawyering.

Nor can it be argued, with tongue out of cheek, that fees should be increased to reward plaintiffs' attorneys for being on the side that happens to benefit from bad judging or good luck. That exhausts the possible explanations for excessively favorable results, and none supports awarding an enhancement.

Judge Carnes's opinion also contains some insightful criticism of the sort of expert witness affidavits and expert testimony that plaintiffs' attorneys seeking lodestar enhancements tend to present in support of their requests.

Unfortunately for the appellants, due to the so-called "prior panel precedent rule," Judge Carnes's insights are, at least for the time being, little more than dicta, as the three-judge panel unanimously views itself as bound by earlier Eleventh Circuit precedent to affirm the fee enhancement at issue in the case. It will be interesting to see whether those earlier Eleventh Circuit cases will survive possible en banc and/or U.S. Supreme Court review.
Posted at 12:50 PM by Howard Bashman



Be careful out there, people! Just in time for the July 4th weekend, the U.S. Court of Appeals for the Eighth Circuit today issued a decision in a case that arose after an item of fireworks struck someone in the eye following ignition. The opinion explains that it was a grandson who set off the fireworks, resulting in the injury in question to his grandmother. And, according to the opinion's statement of facts, the accident occurred exactly six years ago today.
Posted at 12:20 PM by Howard Bashman


"Ruling backs Minot train derailment victims; An appeals court frees residents near Minot, N.D., to pursue their damage claims; The railroad's attorney vows to fight": This article appears today in The Minneapolis Star Tribune.

And The Associated Press reports that "Minot derailment victims win 8th Circuit case."

My earlier coverage of yesterday's interesting ruling by a divided three-judge Eighth Circuit panel can be accessed here.
Posted at 10:30 AM by Howard Bashman



"W.Va. Gov. seeks review of $400M DuPont case": The Associated Press provides a report that begins, "Gov. Joe Manchin wants the West Virginia Supreme Court to clarify whether DuPont has the right to be heard as it appeals $196.2 million in punitive damages, about half the amount a jury awarded in a case involving health threats from a former zinc smelting plant. The lead attorney for the plaintiffs on Wednesday called the governor's action unprecedented."
Posted at 09:30 AM by Howard Bashman


"Judge Rejects Bush's View on Wiretaps": Today in The New York Times, Eric Lichtblau has an article that begins, "A federal judge in California said Wednesday that the wiretapping law established by Congress was the 'exclusive' means for the president to eavesdrop on Americans, and he rejected the government's claim that the president's constitutional authority as commander in chief trumped that law."

Today in The San Francisco Chronicle, Bob Egelko reports that "Suit accusing Bush of acting illegally tossed."

The Associated Press reports that "Judge tosses wiretapping lawsuit by Islamic group."

At Wired.com's "Threat Level" blog, David Kravets has a post titled "Pending a Telecom Immunity Vote, Spy Ruling Lacks Muscle."

And at the Electronic Frontier Foundation's web site, Kurt Opsahl has a post titled "Court Holds That FISA Preempts State Secret Privilege; New NSA Spying Decision Undermines Arguments for Telecom Immunity."

You can access yesterday's ruling of the U.S. District Court for the Northern District of California at this link.
Posted at 09:25 AM by Howard Bashman



"Federal court upholds abortion foes' 1st Amendment rights; Activists' right to display a photo of an aborted fetus at a middle school is affirmed": The Los Angeles Times contains this article today.

Today in The San Francisco Chronicle, Bob Egelko reports that "Anti-abortion group wins free-speech ruling."

The Associated Press reports that "Court rules for anti-abortion activists in LA case."

City News Service reports that "Court OKs aborted fetus photos at RPV school."

And at "The School Law Blog" of Education Week, Mark Walsh has a post titled "Why an Anti-Abortion Truck May Be Coming to Your School."

My earlier coverage of yesterday's Ninth Circuit ruling appears at this link.
Posted at 09:15 AM by Howard Bashman



"Warren J. Ferguson, 87; judge on U.S. 9th Circuit Court of Appeals": This obituary appears today in The Los Angeles Times.
Posted at 09:05 AM by Howard Bashman


"Lots of Questions, Little Agreement at D.C. Hearing on Gun Laws": The Washington Post contains this article today.

And today in The New York Sun, Joseph Goldstein reports that "New York Moves To Defend Gun Law."
Posted at 08:54 AM by Howard Bashman



"Assisted Suicide of Healthy 79-Year-Old Renews German Debate on Right to Die": This article appears today in The New York Times.
Posted at 08:42 AM by Howard Bashman


Available online from law.com: Tony Mauro has an article headlined "Next Term: A Fatter, Faster Calendar for Supreme Court; Chief justice is hastening the argument calendar to front-load the 2008-09 term."

And Gina Passarella has an article headlined "Citing District Judge's Actions During Trial, 3rd Circuit Vacates Med-Mal Verdict; Remanding the case to a new judge, the 3rd Circuit calls district court judge 'impatient and dismissive'" in which I am quoted. The article reports on a non-precedential ruling that the U.S. Court of Appeals for the Third Circuit issued last week.
Posted at 08:40 AM by Howard Bashman



"New drive to ban race preferences; Initiatives in three states would prohibit affirmative action in public realms": This article appears today in The Christian Science Monitor.
Posted at 08:32 AM by Howard Bashman


"Justice Dept. Admits Error in Not Briefing Court": Today in The New York Times, Linda Greenhouse has an article that begins, "In a highly unusual admission of error, the Justice Department acknowledged on Wednesday that government lawyers should have known that Congress had recently made the rape of a child a capital offense in the military and should have informed the Supreme Court of that fact while the justices were considering whether death was a constitutional punishment for the crime."
Posted at 08:30 AM by Howard Bashman


"A Supreme Court on the Brink": The New York Times today contains an editorial that begins, "In some ways, the Supreme Court term that just ended seems muddled: disturbing, highly conservative rulings on subjects like voting rights and gun control, along with important defenses of basic liberties in other areas, including the rights of detainees at Guantanamo Bay, Cuba."
Posted at 08:27 AM by Howard Bashman


"High court reins in judges on questioning of witnesses": This article appeared yesterday in The Newark (N.J.) Star-Ledger.

And law.com has a report headlined "N.J. High Court: Judge's Grilling of Defendant on Stand May Have Prejudiced Jury."

You can access Tuesday's ruling of the Supreme Court of New Jersey at this link.
Posted at 08:25 AM by Howard Bashman



"Guantanamo Detainees: shorter wait? Last month's Supreme Court ruling sets new rules for judges examining habeas corpus challenges from detainees." Warren Richey has this article today in The Christian Science Monitor.

And The Wall Street Journal today contains an editorial entitled "The Enemy Detainee Mess."
Posted at 08:20 AM by Howard Bashman



"Defense Lawyers for Accused Courthouse Shooter Want DA's Office Out; Judge turns down request to delay trial": law.com provides this report.

And today's edition of The Atlanta Journal-Constitution contains an article headlined "Brian Nichols: Don't broadcast my sinister beard."
Posted at 08:00 AM by Howard Bashman



"A judge's porn collection: John Stagliano says the uproar of Judge Kozinski's picture collection exposes the public's reluctance to accept human sexuality; Barry McDonald replies that Kozinski did the right thing by recusing himself from an obscenity case." The Los Angeles Times posted this online debate to the newspaper's web site on Tuesday.
Posted at 07:52 AM by Howard Bashman


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