How Appealing

Friday, August 1, 2008

"State loses attempt to argue anew for sex toy ban": The Associated Press provides a report from Texas that begins, "A federal appeals court turned down Attorney General Greg Abbott's attempt to reinstate a ban on the sale and marketing of sex toys Friday, upholding its previous ruling that the prohibition violated Texans' right to privacy."

A total of seven judges noted their dissent from the Fifth Circuit's order denying rehearing en banc. An eighth active judge, Circuit Judge Rhesa Hawkins Barksdale, had dissented in relevant part from the original three-judge panel's ruling, but he did not note his dissent from today's denial of rehearing en banc. In any event, because the Fifth Circuit has seventeen active judges, nine votes were necessary to grant rehearing en banc, assuming no recusals.

My earlier coverage of the three-judge panel's ruling in this case appears here and here.

Update: At "The Volokh Conspiracy," Eugene Volokh has a post titled "Dildoes Going to the Supreme Court?" One can only hope!
Posted at 10:44 PM by Howard Bashman

Divided three-judge Third Circuit panel issues opinion explaining the basis for its earlier order enabling the news media to obtain the names of prospective jurors in the criminal trial of celebrity coronor Cyril H. Wecht: You can access the Third Circuit's opinion, issued today, at this link.

Circuit Judge D. Brooks Smith wrote the majority opinion, in which Circuit Judge D. Michael Fisher joined. Senior Circuit Judge Franklin S. Van Antwerpen issued a dissenting opinion that concludes, "Because I cannot join in an opinion that will cause so many problems in our district courts, that establishes a new class of interlocutory orders, that effectively creates a new constitutional right, and that sets a precedent of permitting our Court to micro-manage trial procedures established by the district courts, I respectfully dissent."
Posted at 09:15 PM by Howard Bashman

"Lawyering and the Craft of Judicial Opinion Writing: The Second Conversation with Justice Samuel A. Alito Jr. on the Law of the Constitution." The Pepperdine University School of Law has now made the video of this event, held on Wednesday evening of this week, available online for on-demand viewing. Simply click here to access the video.

Participating in the program were Justice Samuel A. Alito, Jr.; Tenth Circuit Judge Michael W. McConnell; Walter E. Dellinger III; and Kenneth W. Starr. Law Professor Douglas W. Kmiec served as the program's host and moderator.
Posted at 05:50 PM by Howard Bashman

"Members of the public with respect for the law, even if they have less learning than appellate judges on our standards for abuse of discretion review and on the principle of deference to trial court sentencing, will doubtless consider it almost inconceivable that a man who steals more than a half-million dollars in a calculated and prolonged course of deception and embezzlement over several years will suffer only a single day in prison." So writes Circuit Judge Ronald M. Gould, dissenting today from the ruling of a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit.

In his dissenting opinion, Judge Gould writes:

To provide for a mere slap on the wrist of those convicted of serious economic crimes, with no or virtually no time imprisoned as punishment, strikes a blow to the integrity of our criminal justice system. In the end, if not corrected, the majority's approach will be dangerous to respect for our legal system. Can it be seriously maintained that wilful offenders who commit white collar crime, who steal intentionally hundreds of thousands or even millions of dollars, should receive no forced incarceration, while those poor and powerless criminal defendants who commit common larceny or theft often serve extensive hard time? I respectfully dissent because I do not believe it prudent for us as an appellate court to hold as reasonable sentences that in their laxity to white collar crime are patently unreasonable, and that indeed will likely be considered offensively unreasonable to the vast majority of law abiding citizens who may become aware of these proceedings.
The ruling from which Judge Gould dissented was written by Circuit Judge Raymond C. Fisher and joined in by Circuit Judge Sandra S. Ikuta.
Posted at 03:14 PM by Howard Bashman

Just Manny being Manny: The Manny expected to patrol left field tonight for the Los Angeles Dodgers (as reported here and here, among many other places) is not the only controversial Manny in the City of Angels.

Today, in a ruling that you can access here, the U.S. Court of Appeals for the Federal Circuit decided to reassign a patent infringement case away from another controversial Los Angeles-based Manny (read's lengthy bio at this link), who was serving as trial judge in the case even though it was being litigated in the U.S. District Court for the District of Arizona.

And wasn't it just last week that's "Law Blog" had a post titled "Another Case Pulled from Judge Manuel Real's Docket" about a different case from the one in which the Federal Circuit issued its ruling today?

Update: Brent Kendall, now of Dow Jones Newswires, reports on the merits of the Federal Circuit's ruling today in an article headlined "Appeals Court Revives Patent Suit Against Microsoft."
Posted at 12:30 PM by Howard Bashman

"Mexican citizen asks high court to block execution": The Associated Press provides this report.

At "SCOTUSblog," Lyle Denniston has a post titled "Move to head off Medellin execution."

And at "Writ Large," James Oliphant has a post titled "Medellin asks Court to stay execution."
Posted at 12:08 PM by Howard Bashman

"A group of Protestant Navy chaplains sued the Navy, alleging that the Navy's operation of its retirement system discriminates in favor of Catholic chaplains in violation of the Establishment Clause." So begins the majority opinion that a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued today. The majority holds that the plaintiffs lack standing to sue because plaintiffs do not claim that the Navy actually discriminated against any of them.

Circuit Judge Brett M. Kavanaugh issued the majority opinion, in which Senior Circuit Judge Laurence H. Silberman joined. Circuit Judge Judith W. Rogers dissented, concluding that the plaintiffs do indeed have Article III standing to sue.
Posted at 10:54 AM by Howard Bashman

Available online from Pamela A. MacLean of The National Law Journal reports that "Obscure 9th Circuit Rule May Get More Young Lawyers Into Court."

An article asks (and attempts to answer) the question "Are Reply Briefs Really Necessary?"

And Lorianne Updike has an essay entitled "Battle of the Founders in 'Heller.'"
Posted at 10:38 AM by Howard Bashman

"Federal appeals court to seek five more judges in overwhelmed California district": The Saramento Bee today contains an article that begins, "Recognizing that the federal judicial district based in Sacramento is overwhelmed with prisoner cases, the 9th U.S. Circuit Court of Appeals has vowed to push Congress for five new judges for the district."
Posted at 10:35 AM by Howard Bashman

"County loses pot ruling again; Court backs ID-card law on medical marijuana": This article appears today in The San Diego Union-Tribune.

Today in The San Francisco Chronicle, Bob Egelko reports that "California's pot law upheld in appeals court."

The Press-Enterprise of Riverside, California reports that "Court of Appeal ruling backs medical marijuana."

And The North County Times reports that "Court upholds medical marijuana law; Advocates say county should start issuing ID cards to users."

You can access at this link yesterday's ruling of the California Court of Appeal for the Fourth Appellate District, Division One.
Posted at 10:33 AM by Howard Bashman

"Whistle-blowers lose case against UC": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "University of California employees who claim they were fired for reporting wrongdoing or unsafe conditions can't sue for damages if the university rejects their claims, the state Supreme Court ruled Thursday."

And reports that "Calif. Justices Reject Whistleblowers' Damages Claims Against University System."

You can access yesterday's ruling of the Supreme Court of California at this link.
Posted at 10:21 AM by Howard Bashman

"Witness alleges bin Laden driver made loyalty pledge; A Navy investigator testified that Osama bin Laden's driver swore a loyalty oath to the al Qaeda founder in a day that featured the war court's first secret testimony": Carol Rosenberg has this article today in The Miami Herald.

Today in The Los Angeles Times, Carol J. Williams reports that "At Guantanamo, Army officers testify for Hamdan in secret; Court is cleared because their encounter with the terrorism suspect has been classified; The prosecution's last witness is allowed to testify about statements that the defense says were coerced."

The New York Times reports that "Prosecution Rests, Then Terror Trial Enters Secret Session to Hear Defense Testimony."

The Washington Post reports that "Hamdan Trial Closed for Testimony of Two Defense Witnesses."

And in The Wall Street Journal, David B. Rivkin Jr. and Lee A. Casey have an op-ed entitled "Justice at Gitmo: Don't believe the hype; The Hamdan trial is going fine."
Posted at 10:14 AM by Howard Bashman

"Apparent suicide in anthrax case; Bruce E. Ivins, a scientist who helped the FBI investigate the 2001 mail attacks, was about to face charges": This article appears today in The Los Angeles Times, along with an article headlined "Anthrax scare: Fear by mail in a season of terror; Soon after the terrorist attacks of Sept. 11, 2001, a new wave of fear quickly spread across the nation as mail-borne anthrax killed five people; And almost as quickly, it had passed."

And The Washington Post provides a news update headlined "Report: Md. Anthrax Scientist Dies in Apparent Suicide."
Posted at 10:05 AM by Howard Bashman

"Judge Orders Miers to Testify; Claim of Executive Privilege Rejected": Today's edition of The Washington Post contains an article that begins, "A federal judge yesterday ordered a former White House counsel to testify before a House committee, rejecting the Bush administration's broad claims of executive privilege in its fight with Congress over the role politics played in the firing of nine federal prosecutors." The newspaper also contains an editorial entitled "Defeated in Court -- Again: The Bush administration never seems to learn from its excessive assertions of presidential authority."

The New York Times reports today that "Judge Rules Bush Advisers Can't Ignore Subpoenas."

The Los Angeles Times reports that "Miers and Bolten ordered to answer congressional subpoenas; A federal judge makes the unusual move of siding with Congress in a lawsuit over the investigation of the Bush administration's U.S. attorney firings."

And The Washington Times reports that "Judge says Bush aides must answer subpoenas; Rejects claim of immunity in probe of U.S. attorney firings."

My earlier coverage of yesterday's ruling of the U.S. District Court for the District of Columbia appears at this link.
Posted at 09:58 AM by Howard Bashman

"Travelers' Laptops May Be Detained At Border; No Suspicion Required Under DHS Policies": This front page article appears today in The Washington Post.
Posted at 09:52 AM by Howard Bashman

"Malwebolence: 'Trolls' use the Internet to harass strangers." Mattathias Schwartz will have this article in Sunday's issue of The New York Times Magazine.
Posted at 09:37 AM by Howard Bashman

"Federal Judge Says Cross Can Stay on San Diego Hill": The New York Times today contains an article that begins, "A Latin cross that looms over San Diego from a hilltop city park can stay put, a federal judge has ruled, turning aside complaints that its presence violates the United States Constitution."

My earlier coverage of Monday's ruling appears here and here.
Posted at 09:34 AM by Howard Bashman

"Same-sex couples applaud repeal; Mass. opens door for out-of-state gays to marry": The Boston Globe contains this article today.

The Boston Herald reports today that "Out-of-state gays on the way; Weddings expected to bring $111M to state."

And The Republican of Springfield, Massachusetts contains an editorial entitled "State sets table for gay nuptials."
Posted at 09:28 AM by Howard Bashman

"Conrad Black's Appeal": This editorial appears today in The New York Sun.

It concludes, "Conrad Black deserves a more reasoned and thorough review -- either by the full 7th Circuit or by a United States Supreme Court that can establish a consistent standard across the country."
Posted at 09:05 AM by Howard Bashman

"Gun Rights of New Yorkers May Rest on Case of Hot Dog Vendor; New Supreme Court Ruling Is Cited Repeatedly in City Gun Cases": Joseph Goldstein has this article today in The New York Sun.
Posted at 09:04 AM by Howard Bashman

"What Will Happen To Justice Department Hires?" This audio segment appeared on yesterday evening's broadcast of NPR's "All Things Considered."
Posted at 09:00 AM by Howard Bashman

"U.S. Appeals Court Gets New Judge; Approval Unanimous For Ex-Va. Justice": This article appeared yesterday in the local Virginia section of The Washington Post.
Posted at 08:54 AM by Howard Bashman

"Yale Students' Lawsuit Unmasks Anonymous Trolls, Opens Pandora's Box": Ryan Singel has this article at

And The Yale Daily News reported yesterday that "Lawyers to name defendants in AutoAdmit case."
Posted at 08:50 AM by Howard Bashman

"The History Boys: In the term's biggest cases, the justices offer lessons on English kings and courts." David G. Savage has this article in the August 2008 issue of ABA Journal magazine.
Posted at 08:47 AM by Howard Bashman

James Oliphant, U.S. Supreme Court correspondent for The Chicago Tribune, is blogging: At "Writ Large."
Posted at 08:40 AM by Howard Bashman

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