How Appealing

Sunday, August 27, 2006

"Alito: The life and times of a justice in the making." Because The Newark (N.J.) Star-Ledger is a newspaper whose articles do not remain online for long, I'm going to break with my usual vacation-week practice to note that today's edition of that newspaper contains an article headlined "Alito: The life and times of a justice in the making."

The article explains, "With the court in summer recess, Sam Alito and his wife, Martha-Ann, agreed earlier this month to their first interviews since he was confirmed. They talked about the Senate hearings, about her tearful breakdown during a now famous session. He also spoke about the inner workings of one of the most closely watched courts in the nation's history."

Meanwhile, rainy weather today in the vicinity of where I'm vacationing has resulted in an actual doubleheader (not one of those separate-ticket, day-night doubleheaders) tomorrow for the Atlantic City Surf baseball team.
Posted at 09:00 PM by Howard Bashman



Friday, August 25, 2006

Programming note: As has happened each of the past four years since I began this blog in May 2002, I am again embarking on a week-long blogging break during the final week in August. If you find yourself in the vicinity of Margate, New Jersey and happen to see someone who resembles the author of this blog, I hope you'll say hello. New posts will appear here on September 2, 2006. Until then, readers are invited to let me know via email of news, court rulings, and developments that might be worthy of mention upon my return.
Posted at 10:40 PM by Howard Bashman


Available online from law.com: Shannon P. Duffy reports that "Bar Prep Co. Ordered to Pay $11.9M for Copying Multistate Exam Questions; Federal judge finds evidence of illegal copying 'practically leaps from the page.'" My earlier coverage appears at this link.

And a news report from Florida is headlined "Did a Federal Judge Cross a Legal Line for His Clerk?"
Posted at 10:35 PM by Howard Bashman



"Making Rain on the Net: Today's Web Offers a Wide World of Marketing Tactics, if You're Savvy." Jason Krause has this article in the August 2006 issue of the ABA Journal. The article contains a lengthy discussion of law blogs and even mentions me at one point.
Posted at 10:28 PM by Howard Bashman


"Jewish veterans, local ACLU latest to sue over cross": The San Diego Union-Tribune today contains an article that begins, "The local chapter of The American Civil Liberties Union filed suit yesterday to force the Mount Soledad cross to be moved in the latest challenge over the La Jolla landmark's constitutionality. The suit, filed in San Diego federal court on behalf of a national Jewish war veterans organization and three San Diego residents, is the newest development in an increasingly high-profile, 17-year legal battle over the cross."

And The Associated Press reports that "ACLU sues federal government in battle over San Diego cross."

You can access the complaint initiating suit at this link.
Posted at 08:54 PM by Howard Bashman



"La. Supreme Court upholds extension to file Katrina/Rita insurance claims": Raymond Ward has this post linking to the ruling at his "Minor Wisdom" blog.

And in other coverage, The Associated Press reports that "La. High Court Upholds Insurance Laws."
Posted at 08:42 PM by Howard Bashman



Three-judge Tenth Circuit panel rejects facial challenge to the adequacy of the judicial bypass exception to Oklahoma's newly-enacted statute requiring parental notification before a minor may receive an abortion: You can access today's ruling at this link.
Posted at 08:33 PM by Howard Bashman


"Should the U.S. Court of Appeals for the Ninth Circuit afford a presumption of reasonableness to within-Guidelines criminal sentences?" That was the title of my post from Wednesday of this week reporting on an order granting rehearing en banc in two Sentencing Guidelines cases that day.

Today, the Ninth Circuit issued a new order in those cases specifying the precise issues on which rehearing en banc has been granted and welcoming amicus briefs addressing those issues.
Posted at 08:20 PM by Howard Bashman



"La. Limit on Violent Video Games Blocked": The Associated Press provides this report.

Update: You can access the opinion at this link.
Posted at 03:50 PM by Howard Bashman



From the October 2006 issue of The Third Branch: An item headlined "Report Details Action On Judicial Accountability" begins, "In August 2006, the Executive Committee of the Judicial Conference sent to Chief Justice John G. Roberts Jr. a status report detailing the Conference's action on judicial ethics and accountability."

An item headlined "Advantages of Videoconferencing Grow with Use" notes that "The FJC surveyed 14 appellate court judges on their use and opinions of videoconferencing technology." You can also access online the complete "Report of a Survey of Videoconferencing in the Courts of Appeals."

And an item headlined "Access As Easy As Tuning In" begins, "The next time you see someone pop on the headphones and get that faraway look in his or her eyes, don't be so sure it's a tune that's beguiling them. It just may be the latest oral arguments from the Seventh Circuit."
Posted at 03:25 PM by Howard Bashman



"Why I need to see child porn: It's outrageous that academics and reporters like me can be thrown in prison for doing front-line research into pornography." Debbie Nathan has this essay online today at Salon.com.

Update: For whatever reason, it appears that Salon.com (at least for the time being) has taken this article off-line. It further appears that at least one blog has reprinted much if not all of the essay.

Second update: Salon.com has now posted a "Correction" explaining why the opinion piece has been removed from that web site.
Posted at 03:14 PM by Howard Bashman



"Bar Prep Company Ordered to Pay $11 Mil. for Copying Questions": Shannon P. Duffy of The Legal Intelligencer provides this news update (free access). My earlier coverage appears here.
Posted at 03:12 PM by Howard Bashman


"What's a Wetland, Anyhow?" This editorial about the U.S. Supreme Court's recent ruling in Rapanos v. United States appears in today's issue of Science magazine.
Posted at 01:05 PM by Howard Bashman


"Judge J. Clifford Wallace to Receive Prestigious Devitt Award for Judicial Service": The Public Information Office of the U.S. Court of Appeals for the Ninth Circuit issued this news release yesterday.
Posted at 12:27 PM by Howard Bashman


"May we see your photos please?" Fans of the Late Show with David Letterman are likely familiar with that recurring feature. Today, in an opinion you can access here, the U.S. Court of Appeals for the Eighth Circuit addresses whether the U.S. Supreme Court's ruling earlier this year in Georgia v. Randolph applies to a search of a home computer's files for child pornography.

In the case decided today, the majority holds that where a husband is arrested at work and denies consent to search his home computer, the wife who's at home with the computer lacks the ability to override the husband's refusal by consenting to the search. The dissenting opinion argues that the Randolph case ought not be applied under the circumstances and that the effect of today's ruling will discourage law enforcement officers "in seeking consent, to bypass the suspect lest the suspect refuse consent, and instead seek only the consent of an authorized co-occupant."
Posted at 12:20 PM by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "DeLay Says Courts Erred in Ballot Ruling"; "Court Upholds President's Authority"; and "American Indians Advance Trust Case."
Posted at 11:04 AM by Howard Bashman


Who needs law school? Virginia woman becomes member of the bar through that State's law-reader program: The Free Lance-Star of Fredericksburg, Virginia today contains an article headlined "Raising the bar: New lawyer didn't go to law school; Spotsylvania County woman becomes lawyer through special Virginia program."
Posted at 10:58 AM by Howard Bashman


Sixth Circuit acknowledges that a motion requesting an extension of time in which to file a notice of appeal can itself serve as a notice of appeal, but the would-be-appellants in the case decided today are unable to benefit from that rule: Circuit Judge Jeffrey S. Sutton issued this decision today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit.
Posted at 10:55 AM by Howard Bashman


"Waco ordinance against congregating near schools struck down, anti-abortion protesters celebrate": This article appears today in The Waco Tribune. Chief Judge Edith H. Jones wrote yesterday's ruling on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit.
Posted at 10:45 AM by Howard Bashman


"Bush Administration Opposes Integration Plans; The solicitor general urges the Supreme Court to scrap schools' voluntary programs that exclude some students because of their race": David G. Savage has this article today in The Los Angeles Times.
Posted at 08:23 AM by Howard Bashman


"U.S. Frees Longtime Detainee; Court Had Ruled In Favor of Turk": The Washington Post today contains an article that begins, "A German native who was imprisoned by the U.S. military at Guantanamo Bay, Cuba, was released Thursday, more than 18 months after a federal judge in Washington ruled there was insufficient evidence to detain him."
Posted at 08:20 AM by Howard Bashman


Available online from law.com: An article reports that "Baseball a Risky Business -- for Spectators."

And Judith A. Moldover has an essay entitled "Maddened by Makeup: Gender-based appearance policies, such as makeup requirements, have some employees donning war paint."
Posted at 08:05 AM by Howard Bashman



"Judge Denies Former CIA Officer's Request To Keep Her Home Address a Secret": Josh Gerstein has this article today in The New York Sun. My earlier coverage is at this link.
Posted at 08:00 AM by Howard Bashman


"A Clash Between Two Cases Involving Equality and Religious Speech: How the U.S. Court of Appeals for the Fourth Circuit's Decisions Are Inconsistent." Marci A. Hamilton has this essay online at FindLaw.
Posted at 07:58 AM by Howard Bashman


Minnesota Twins 11, Baltimore Orioles 2: My son and I just returned home from Baltimore, where we attended Thursday night's baseball game at Oriole Park at Camden Yards. When my wife and I were recently at the Minneapolis-St. Paul International Airport, we bought my son a Minnesota Twins t-shirt featuring Joe Mauer's name and number, and my son picked the perfect time to wear the shirt last night, as the player who possesses Major League Baseball's best batting average had a great night, going 3-for-4 at the plate with four RBIs. You can access the box score at this link, while wraps are available here and here.
Posted at 12:15 AM by Howard Bashman


Thursday, August 24, 2006

Programming note: My son and I will be attending an event this evening in Baltimore that will have me away from the computer for a bit. Additional posts will appear online here on Friday.
Posted at 03:05 PM by Howard Bashman


U.S. District Court for the District of Columbia denies request by Valerie Plame and Joe Wilson to file their civil action complaint without including their home address: You can access today's ruling by U.S. District Judge John D. Bates at this link.
Posted at 03:04 PM by Howard Bashman


"[M]ay New Jersey open prisoners' legal mail outside of the prisoners' presence pursuant to a state policy intended to protect the safety and security of its prisons by reducing the risk of anthrax contamination?" Today a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit answers "no" in an opinion that you can access here.
Posted at 02:55 PM by Howard Bashman


"The judge and the ACLU": This editorial appears today in The Chicago Tribune.

That newspaper today also contains an op-ed by Law Professor Geoffrey R. Stone entitled "An independent and fearless judiciary."
Posted at 02:28 PM by Howard Bashman



Penis pump used in court (as evidence): The Chicago Sun-Times reports today that "Evidence ruled sufficient in penis pump case."

And The Associated Press provides a report headlined "Officials: Man Says Penis Pump Is a Bomb."
Posted at 02:25 PM by Howard Bashman



National Conference of Bar Examiners wins $11.9 million copyright infringement judgment against owners of PMBR bar review course: Tuesday's ruling of the U.S. District Court for the Eastern District of Pennsylvania can be accessed at this link.

The court's ruling also includes the following provision: "Defendants, their employees, and agents are enjoined from taking any Multistate Bar Examination for any purpose other than to obtain bar admission in the jurisdiction in which the examination is being given."
Posted at 12:55 PM by Howard Bashman



Seventh Circuit affirms $4 million Lanham Act verdict in favor of R.J. Reynolds against Cigarettes Cheaper!, operator of a chain of retail outlets that had reimported "gray market" Reynolds products for domestic sale: You can access today's opinion, written by Circuit Judge Frank H. Easterbrook, at this link. Today's ruling also affirms judgments in favor of Reynolds on Cigarettes Cheaper!'s antitrust counterclaims arising under the Sherman and Robinson-Patman Acts.
Posted at 12:25 PM by Howard Bashman


Today's rulings of note from the U.S. Court of Appeals for the Second Circuit: In a decision issued today, the court rejected a federal criminal defendant's constitutional challenge to the International Emergency Economic Powers Act. The challenge argued that the law did not constitute an appropriate delegation of congressional authority to the executive branch. The defendant had pleaded guilty to transferring money into Iraq on three specific occasions in 1999 and 2000, in violation of Executive Orders and regulations issued pursuant to the IEEPA, but the defendant's plea agreement permitted him to pursue a constitutional challenge to the law.

And in a separate ruling issued today, the court reversed a federal district court's order refusing to certify for class action status certain issues presented in a lawsuit challenging Nassau County (N.Y.) Correctional Center's blanket strip search policy for newly admitted misdemeanor detainees.
Posted at 12:03 PM by Howard Bashman



"GMU's law seminars are fruitful and nonpartisan": Today in The Roanoke Times, Charles J. Goetz has an op-ed that begins, "If one believed certain sources, the nation's judges are being brainwashed at propaganda seminars that are staffed by shills and bent to the behest of dirty-money bankrollers."
Posted at 11:30 AM by Howard Bashman


"Hecht faulted for double standard; Justice is challenging a rebuke for ethics rules he helped write, lawyer charges": The Austin American-Statesman today contains an article that begins, "Texas Supreme Court Justice Nathan Hecht was faulted Wednesday for raising a legal challenge to ethics rules that he helped write only after he was rebuked for violating the standards. Hecht did nothing while five other state judges were rebuked under the same standards in the past six years, said Mark Alexander, lawyer for the state regulatory agency that issued the ethics reprimand."

The Fort Worth Star-Telegram reports today that "Attorney says justice had double standard."

And The Associated Press reports that "Panel Considers Reprimand of Texas Justice."
Posted at 11:24 AM by Howard Bashman



Dwarfs vs. Justices, part three: Following up on my report from the other day, which itself followed-up on this interesting report from Reuters, on Sunday columnist David Grimes had an op-ed entitled "Not stupid no more" in The Sarasota Herald-Tribune.

The Kansas City Star on Sunday reported on the results of its own local polling into whether the seven dwarfs are better-known than the nine constitutional expositors.

And not to be outdone, Justice Samuel A. Alito, Jr. apparently commented on the matter in recent remarks that he delivered to the graduating class of the Police Academy at Essex County College, according to an article headlined "Police Academy graduates 46 at ECC ceremony" published yesterday in The News-Record of Union, New Jersey.
Posted at 09:55 AM by Howard Bashman



"Slain Lawyer's Wife Testifies in District": The Washington Post today contains an article that begins, "The wife of a lawyer killed this month in a townhouse near Dupont Circle testified yesterday before a grand jury investigating the death, according to a source familiar with the inquiry."
Posted at 07:40 AM by Howard Bashman


"A Matter of Appearances: Before ruling on the Bush administration's wiretapping program, Judge Anna Diggs Taylor should have disclosed any potential conflicts of interest." This editorial appears today in The New York Times.
Posted at 07:25 AM by Howard Bashman


"Tax Law Ruling by Court May Encourage New Challenges": Bloomberg News provides this report.
Posted at 07:20 AM by Howard Bashman


Josh Gerstein is reporting: Today in The New York Sun, he has articles headlined "Doctor in Va. Drug-Trafficking Case Granted New Trial" and "Texas Judge Renews Criticism In Case of Missing Silicosis X-Rays."
Posted at 07:15 AM by Howard Bashman


Available online from law.com: T.R. Goldman reports that "ABA Rating for 5th Circuit Nominee Angers Specter."

In other news, "9th Circuit Rejects Claim That Judge Had Conflict in Trademark Cases."

An article reports that "D.C. Police Maintain Focus on House Where Lawyer Was Murdered."

And Henry C. Su has an essay entitled "The Future of Obviousness: Supreme Court to examine validity of 'motivation-suggestion-teaching' test in highly anticipated case."
Posted at 07:05 AM by Howard Bashman



Wednesday, August 23, 2006

"Tax Prof Commentary on Murphy": "TaxProf Blog" has compiled lots of interesting comments from tax law professors on yesterday's "bombshell" ruling of the D.C. Circuit, which I initially noted here.
Posted at 09:30 PM by Howard Bashman


"Unmarried couple want benefits, too; Straight woman files complaint over gay rights": The Associated Press provides a report that begins, "One of the first tests for Washington state's new gay civil rights law has an intriguing twist: The complaint was filed by a heterosexual woman. The state's discrimination watchdogs are investigating the case, which claims unmarried straight people should get the same domestic partner benefits as their gay and lesbian co-workers."
Posted at 09:25 PM by Howard Bashman


"Indian voters now in two districts; ACLU says judge's redrawing before election 'represents democracy'": This article appears today in The Argus Leader of Sioux Falls, South Dakota.

The Associated Press reports that "Panel OKs redrawing districts for reservations."

And Law Professor Rick Hasen provides these thoughts at his "Election Law" blog.

My earlier coverage appears at this link.
Posted at 09:10 PM by Howard Bashman



"Judge Denies He Had Financial Interest in Two Cases' Litigants": Today in The Daily Journal of California, Amelia Hansen has an article that begins, "Ninth U.S. Circuit Court of Appeals Judge Harry Pregerson defended himself Tuesday against allegations that he had a financial conflict in two trademark cases he ruled in last year."

My earlier coverage appears at this link.
Posted at 08:55 PM by Howard Bashman



"Court upholds signature rules for Pa. candidates": The Associated Press provides a report that begins, "A federal appeals court on Wednesday upheld Pennsylvania's signature requirements for minor-party and independent candidates seeking to get on the statewide ballot."

You can access today's ruling of the U.S. Court of Appeals for the Third Circuit at this link.
Posted at 06:03 PM by Howard Bashman



"Appeal on Lilly trusts is heard; 'Common sense' needed in charities' suit, judge says": This article appears today in The Indianapolis Star.

And The Associated Press reports that "Judge Scolds Charities for Lilly Lawsuit."
Posted at 05:30 PM by Howard Bashman



"Justices Uphold Grandparents’ Visitation Act": Asher Hawkins of The Legal Intelligencer provides this news update (free access).

And The Associated Press provides a report headlined "Pa. court clarifies grandparent visitation rules" in which I am quoted.
Posted at 05:10 PM by Howard Bashman



Should the U.S. Court of Appeals for the Ninth Circuit afford a presumption of reasonableness to within-Guidelines criminal sentences? Today, the Ninth Circuit has entered an order granting rehearing en banc in two cases presenting that question. The earlier three-judge panel opinions in those two cases can be accessed here and here.

Update: The "Sentencing Law and Policy" has this post about today's en banc order.
Posted at 05:00 PM by Howard Bashman



"Rocks and Powder: Will Congress listen to the courts and fix drug sentencing?" Larry Schwartztol has this jurisprudence essay online at Slate.
Posted at 04:52 PM by Howard Bashman


It's the cat's meow: The Pittsburgh Tribune-Review reports today that "Neighbors' catfight ends up in Jeannette court."

And The Associated Press reports that "Judge to Rule if 'Meowing' Is Harassment."
Posted at 04:33 PM by Howard Bashman



The problem with a poorly-phrased Question Presented when the U.S. Supreme Court grants certiorari: In Meredith v. Jefferson County Board of Education, the first question presented on which the U.S. Supreme Court has granted review states:
Should Grutter v. Bollinger, 539 U.S. 306 (2003) and Regents of University of California v. Bakke, 438 U.S. 268 (1978) and Gratz v. Bollinger, 539 U.S. 244 (2003) be overturned and/or misapplied by the Respondent, the Jefferson County Board of Education to use race as the sole factor to assign students to the regular (nontraditional) schools in the Jefferson County Public Schools?
The puzzling way that the question is phrased has led to some disagreement over whether the Court itself has agreed to consider if Grutter should be overturned or whether the question is merely suggesting that it is the Jefferson County Board of Education that has improperly "overturned" Grutter (and does it necessarily make a difference?).

In any event, not only the amicus brief that I linked earlier here, but also the amicus brief filed by the Governor of Florida and Florida's State Board of Education, understand that the Court has granted review to consider whether to overturn Grutter.

Update: I have posted at this link the amicus brief filed on behalf of school children from the City of Lynn, Massachusetts who were the plaintiffs/petitioners in Comfort v. Lynn School Committee.
Posted at 04:25 PM by Howard Bashman



"Court uncertain of inmate's plea to be executed; Hubert Michael wants an end to a string of appeals; A court wants another competency hearing": This article appears today in The Philadelphia Inquirer. My earlier coverage appears here.
Posted at 03:25 PM by Howard Bashman


Yesterday's rulings of note from the Supreme Court of Pennsylvania: The Associated Press provides a report headlined "Court: Nader Must Pay for Election Suit." The ruling that Pennsylvania's highest court issued yesterday consists of a majority opinion; an opinion concurring in part and dissenting in part; and a dissenting opinion.

Pennsylvania's highest court yesterday also issued decisions in two cases on which I worked. In one ruling, the court by a vote of 5-1 rejected a constitutional challenge to Pennsylvania's grandparent visitation statute. The ruling consists of a majority opinion; a concurring opinion arguing that the "best interests of the child" should be recognized as a fundamental right; and a dissenting opinion by the Chief Justice agreeing with my client's position in the case.

Finally, yesterday Pennsylvania's highest court entered an order dismissing, over the dissent of two Justices, review as improvidently granted in the insurance bad faith case of Hollock v. Erie Insurance Exchange. I assisted counsel for the plaintiff in drafting their Brief for Appellee on the merits and in preparing for oral argument in that case. You can access the decision in plaintiff's favor of the Superior Court of Pennsylvania, which now survives undisturbed, at this link.
Posted at 03:22 PM by Howard Bashman



Ninth Circuit holds that attorney-parents are not entitled to attorneys' fees for representing their own children in Individuals with Disabilities Education Act proceedings: You can access today's ruling at this link.
Posted at 01:37 PM by Howard Bashman


"Racial Engineering in Seattle: Grutter politics." Peter Kirsanow has this essay today at National Review Online.

On Monday, a reader emailed to say that he has been "surprised by the lack of attention being paid to the fact that the Court expressly granted certiorari on the question of whether Grutter should be overruled." I have received via email an amicus brief filed in the U.S. Supreme Court last week, on behalf of the Project on Fair Representation at the American Enterprise Institute, the National Association of Scholars, and various law professors, arguing that Grutter v. Bollinger should be overturned, and I have posted the brief online at this link.

Update: At "SCOTUSblog," Marty Lederman has a post titled "SG Briefs in K-12 Race-Conscious Admissions Cases" linking to those briefs.
Posted at 11:22 AM by Howard Bashman



"Judge Hardiman considered for federal appeals post": The Pittsburgh Post-Gazette today contains an article that begins, "A judge who has been on the bench in federal court in Pittsburgh for less than three years is now under consideration for a spot on the 3rd U.S. Circuit Court of Appeals."

And The Pittsburgh Tribune-Review reports today that "U.S. judge here eyed for court of appeals."
Posted at 11:14 AM by Howard Bashman



"Texas Supreme Court justice defends support of Miers; Hecht said ethics rules being misapplied": This article appears today in The Austin American-Statesman.

And The Dallas Morning News reports today that "Justice fights censure over backing of Miers; Hecht accused of going too far in endorsing high court nominee."

Earlier today, I collected additional related press coverage at this link.
Posted at 11:03 AM by Howard Bashman



One formerly anonymous lawyer reviews another: In the August 28, 2006 issue of The New York Observer, David Lat (the formerly anonymous author of the blog "Underneath Their Robes") reviews Jeremy Blachman's book "Anonymous Lawyer." As posted online, the review is headlined "Way Better Than Briefs: Legal Minds Turn to Blogs."
Posted at 11:00 AM by Howard Bashman


"The Success of My Secrets: For a president inclined to ignore Congress and the courts, the best defense is no defense." Jacob Sullum has this essay online today at Reason.

And today at National Review Online, Jonah Goldberg has an essay entitled "The Living Constitution's Double Standard: Oh, the irony …."
Posted at 10:52 AM by Howard Bashman



"Sting case prosecutors ask to shield witnesses; Anonymity for translators will prejudice jury, argue attorneys for mosque leader, pizza shop owner": The Times Union of Albany, New York today contains this article, in which I am quoted.
Posted at 07:40 AM by Howard Bashman


"Texas Justice Defends Support of Miers": The Associated Press provides this report.

In local coverage, The Fort Worth Star-Telegram today contains an article headlined "'I would do exactly what I did.'" Yesterday, the newspaper reported that "Texas Supreme Court Justice Nathan Hecht will defend his support for Harriet Miers." And one week ago today, the newspaper reported that "Hecht to defend support for Miers."
Posted at 07:35 AM by Howard Bashman



"Tax Code on Emotional Damages Tossed": The Associated Press provides this report. My earlier coverage appears here.
Posted at 07:28 AM by Howard Bashman


"Conviction Of McLean Pain Doctor Overturned; Appeals Court Says Judge Erred in Jury Instructions": The Washington Post contains this article today.

And The Richmond Times-Dispatch reports today that "Federal appeals court orders new trial for pain specialist."

My earlier coverage appears at this link.
Posted at 07:25 AM by Howard Bashman



"Leak Investigation Ordered; How Media Learned About Probe of Pro-Israel Lobbyists Sought": This article appears today in The Washington Post.

And today in The New York Sun, Josh Gerstein reports that "Judge Okays Wiretaps and Searches in Aipac Lobbyist Case."
Posted at 07:20 AM by Howard Bashman



"A Law Unto Herself: Judge Anna Diggs Taylor's opinion on the president's warrantless surveillance program helps those who have been arguing against results-oriented, activist judges." Law Professor Ann Althouse (whose blog you can access here) has this op-ed today in The New York Times.

And today in The New York Sun, Paul Greenberg has an op-ed entitled "Judge Taylor confuses the constitution," while Thomas Bray has an op-ed entitled "Judge's Strange Ruling."
Posted at 07:05 AM by Howard Bashman



"Judge may have had conflict of interest, group says; She ruled for ACLU in warrantless wiretapping case": Joan Biskupic has this article today in USA Today.

The New York Times reports today that "Conflict of Interest Is Raised in N.S.A. Ruling."

The Detroit Free Press reports that "Judge in wiretap case under fire; Watchdog claims conflict of interest."

And The Associated Press reports that "Domestic Spying Judge's Ties Questioned."
Posted at 06:58 AM by Howard Bashman



"Examining Two Recent Rulings Allowing Suits Against the NSA's Warrantless Wiretapping To Proceed, Despite the State Secrets Privilege": Julie Hilden has this essay today online at FindLaw.
Posted at 06:55 AM by Howard Bashman


Available online from law.com: Tony Mauro reports that "Chief Justices Sound Alarm on Judicial Elections; Conference of state justices fears issue-based political campaigns sap public confidence in the judiciary."

And in other news, "'Super Lawyers' Edict Stayed by N.J. Supreme Court; Advertising and Web posting can go on; so can selection process."
Posted at 06:45 AM by Howard Bashman



Tuesday, August 22, 2006

"U.S. District Judge Who Presided Over Government Wiretapping Case May Have Had Conflict of Interest": The organization Judicial Watch issued this press release yesterday.
Posted at 09:08 PM by Howard Bashman


"Court orders New Trial for Doctor": The Associated Press provides a report that begins, "A doctor convicted of drug trafficking for prescribing massive doses of OxyContin and other painkillers to his patients will get a new trial."

You can access today's ruling of the U.S. Court of Appeals for the Fourth Circuit at this link.
Posted at 06:07 PM by Howard Bashman



"Limits of Executive Power": Today's broadcast of the public radio program "On Point" contained this lengthy segment (listen in either RealPlayer or Windows Media format) featuring Law Professors Laurence H. Tribe and Douglas W. Kmiec.
Posted at 05:10 PM by Howard Bashman


"Stock Conflict Cited in 9th Circuit Judge's Trademark Rulings": Last month, law.com posted online an article that begins, "After losing two trademark cases, an attorney for a software company is trying to get the rulings thrown out because one of the 9th Circuit judges hearing the case apparently had a financial conflict. Judge Harry Pregerson wrote opinions favoring Time Warner in two cases in which M2 Software fought the multimedia giant over the trademark to the name 'M2.' Mark Pettinari, representing M2 of Los Angeles, says Pregerson owned stock in Time Warner at the time he heard the cases and issued the rulings."

Today, the U.S. Court of Appeals for the Ninth Circuit posted online two separate opinions (available here and here) from Circuit Judge Harry Pregerson in which he explains why he was not required to recuse in either case.
Posted at 05:05 PM by Howard Bashman



"Why Should We be 'Boxed In' by the Constitution and Laws of the United States?" At the "Balkinization" blog, Marty Lederman has a post that begins, "In today's Wall Street Journal, Judge Richard Posner laments the fact that the federal courts are available to adjudicate whether the President's chosen methods of fighting the war on terror are consistent with the Constitution and laws of the United States."
Posted at 04:45 PM by Howard Bashman


First Circuit holds that federal Visual Artists Rights Act of 1990 does not protect site-specific art: You can access today's ruling of the U.S. Court of Appeals for the First Circuit at this link.
Posted at 04:00 PM by Howard Bashman


"Graham showed courage": This past Sunday's issue of The Herald of Rock Hill, South Carolina contained an editorial that begins, "Sen. Lindsey Graham, R-S.C., is taking heat from some critics for his role in the rejection of William J. 'Jim' Haynes as a candidate for a seat on the 4th Circuit Court of Appeals."
Posted at 04:00 PM by Howard Bashman


"The Constitution vs. Counterterrorism": Today in The Wall Street Journal, Seventh Circuit Judge Richard A. Posner has an op-ed (pass-through link) that begins, "Last week a federal district judge in Detroit ruled that the National Security Agency's conduct of electronic surveillance outside the boundaries of the Foreign Intelligence Surveillance Act is illegal. As a judge I cannot comment on the correctness of her decision. But I can remark on the strangeness of confiding so momentous an issue of national security to a randomly selected member of the federal judiciary's corps of almost 700 district judges, subject to review by appellate and Supreme Court judges also not chosen for their knowledge of national security."
Posted at 01:44 PM by Howard Bashman


"Appeals court refuses to reinstate 'top-two' primary in Washington": The Associated Press provides a report that begins, "A three-judge panel of the 9th Circuit U.S. Court of Appeals on Tuesday refused to reinstate Washington's 'top-two' primary system, saying it infringes on the rights of political parties to choose their own nominees."

You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.

Update: Law Professor Rick Hasen offers his initial thoughts on the ruling at his "Election Law" blog.
Posted at 01:34 PM by Howard Bashman



"Is a Federal Tax on Damages for Emotional Distress Unconstitutional?" Marty Lederman has this post at the "Balkinization" blog questioning the soundness of today's D.C. Circuit ruling.

And "TaxProf Blog" offers these thoughts on the ruling.
Posted at 01:30 PM by Howard Bashman



"Government suffers setback as Padilla terror count tossed; The U.S. government's terrorism case against former 'enemy combatant' Jose Padilla and two other Muslim codefendants suffered a major setback in federal court in Miami": This article appears today in The Miami Herald.
Posted at 12:15 PM by Howard Bashman


"Constitutional Limits on the Power to Tax": At "The Volokh Conspiracy," Orin Kerr has this post about today's D.C. Circuit ruling, which I blogged about earlier here.

And additional coverage of the ruling can be accessed here from Paul Mollica's "Daily Developments in EEO Law."
Posted at 12:08 PM by Howard Bashman



"If one imagines the federal judiciary as running a vast, multi-topic blog - which is not a bad way to view Anglo-American common-law adjudication - the Nigerian-barge ruling would be the latest posting in a lively thread that's been going on for more than a generation." That sentence comes from an article headlined "Redefining fraud: Judicial opining; Reversals in the 'Nigerian barge case' won't help Jeff Skilling; But they revive a debate about what's fraud and what isn't" published in the September 4, 2006 issue of Fortune magazine.
Posted at 11:55 AM by Howard Bashman


"The record is clear that South Dakota's history of discrimination against Native-Americans has limited their ability to succeed in the state political process. The vestiges of this discrimination remain, dampening Native-American interest in South Dakota politics and affecting the ability of Native-Americans to register, to vote, and to participate in the electoral process." A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit today issued a decision affirming a federal district court's ruling that South Dakota's 2001 legislative redistricting violated Section 2 of the Voting Rights Act by packing District 27 with Native-Americans at the expense of District 26.
Posted at 11:30 AM by Howard Bashman


"Court reinstates former athletic director's discrimination suit": The Associated Press provides this report. My earlier coverage appears here.
Posted at 11:15 AM by Howard Bashman


I'm too sexy for my billboard: The Kansas City Star reports today that "Sex-ad billboards will stay; A court knocks down a Missouri law banning adult-oriented signs near state highways."

The St. Louis Post-Dispatch reports today that "Court rejects billboard law."

And The Associated Press reports that "Court KOs Billboard Law."

My earlier coverage appears at this link.
Posted at 11:12 AM by Howard Bashman



"Two Pep Boys Heirs Booted From Trust": Yesterday evening, The Legal Intelligencer posted online this news update (free access) written by Asher Hawkins. As noted in the final version of the article (subscription required) published in today's issue of that newspaper, I'm serving as appellate co-counsel for those two individuals.
Posted at 11:02 AM by Howard Bashman


"Blogging for Dollars: It's not just a hobby -- some small sites are making big money; Here's how to turn your passion into an online empire." This article appears in the September 2006 issue of Business 2.0 magazine.
Posted at 10:58 AM by Howard Bashman


The D.C. Circuit orders the Federal Bureau of Investigation to use Google to determine whether the speakers on an audiotape whose production an author seeks under the Freedom of Information Act are dead or alive: You can access today's ruling at this link.

On page 17 of today's opinion, Circuit Judge Merrick B. Garland writes for a unanimous three-judge panel:

But if that is so, one has to ask why -- in the age of the Internet -- the FBI restricts itself to a dead-tree source with a considerable time lag between death and publication, with limited utility for the FBI's purpose, and with entries restricted to a small fraction of even the "prominent and noteworthy"? Why, in short, doesn't the FBI just Google the two names? Surely, in the Internet age, a "reasonable alternative" for finding out whether a prominent person is dead is to use Google (or any other search engine) to find a report of that person’s death. Moreover, while finding a death notice for the second speaker -- the informant -- may be harder (assuming that he was not prominent), Googling also provides ready access to hundreds of websites collecting obituaries from all over the country, any one of which might resolve that speaker's status as well. See, e.g., http://www.legacy.com (hosting the obituary sites of more than 275 newspapers, including three Louisiana papers); http://www.obituarycentral.com (containing a directory of links to online obituaries and death notices in every state).
Notably, however, today's opinion does not require the FBI to use Wikipedia to determine whether the speakers on the tape are dead or alive.
Posted at 10:23 AM by Howard Bashman


D.C. Circuit declares a provision of the federal tax code unconstitutional as applied: Today's ruling, by a unanimous three-judge panel, holds that "insofar as §104(a)(2) permits the taxation of compensation for a personal injury, which compensation is unrelated to lost wages or earnings, that provision is unconstitutional." You can access the complete ruling at this link.

According to today's opinion, written by Chief Judge Douglas H. Ginsburg, "The Sixteenth Amendment simply does not authorize the Congress to tax as 'incomes' every sort of revenue a taxpayer may receive." The opinion goes on to explain:

As we have seen, it is clear from the record that the damages were awarded to make Murphy emotionally and reputationally "whole" and not to compensate her for lost wages or taxable earnings of any kind. The emotional well-being and good reputation she enjoyed before they were diminished by her former employer were not taxable as income. Under this analysis, therefore, the compensation she received in lieu of what she lost cannot be considered income and, hence, it would appear the Sixteenth Amendment does not empower the Congress to tax her award.
And the opinion concludes
In sum, every indication is that damages received solely in compensation for a personal injury are not income within the meaning of that term in the Sixteenth Amendment. First, as compensation for the loss of a personal attribute, such as well-being or a good reputation, the damages are not received in lieu of income. Second, the framers of the Sixteenth Amendment would not have understood compensation for a personal injury -- including a nonphysical injury -- to be income. Therefore, we hold §104(a)(2) unconstitutional insofar as it permits the taxation of an award of damages for mental distress and loss of reputation.
This appears to be a significant loss for the federal government, and it will be interesting to see the extent to which other circuits will follow today's ruling.

Finally, while today's ruling contains a substantial discussion of the history of what constitutes income for purposes of federal tax law, the opinion will also be of interest to those who study the history of the footnote, as all footnotes contained in the opinion are designated using a single asterisk (*).
Posted at 10:05 AM by Howard Bashman



"State Supreme Court Rejects Appeal of Caregivers Seeking $450,000 Inheritance; Justices rule that helpers may not benefit from changes in wills made by dependent elderly in their final days": This article appears today in The Los Angeles Times.

You can access yesterday's ruling of the Supreme Court of California at this link.
Posted at 07:35 AM by Howard Bashman



"DEA's Khat Sting Stirs Up Somali 'Cultural Clash'; The stimulant is widely used in some countries; But in America, it has resulted in 44 arrests": Sam Howe Verhovek has this article today in The Los Angeles Times.
Posted at 07:28 AM by Howard Bashman


"No Skid Row Accord for City, ACLU; More talks are slated in an effort to resolve a suit over arrests of homeless who camp on sidewalks": This article appears today in The Los Angeles Times.
Posted at 07:25 AM by Howard Bashman


"A Law Unto Herself: The criminal defense attorney is star-struck, young and unorthodox; But don't be fooled; She's also Ivy League, savvy and successful." Today in The Los Angeles Times, Maura Dolan has this profile of attorney Allison Margolin. Allison's blog can be accessed here. [Update: Because that blog includes an image of a partially naked female, a reader emails to suggest that I note that the blog's link is potentially not safe for work.]
Posted at 07:24 AM by Howard Bashman


"Teams woo female fans with freebies, but a lawyer cries foul; Dispute's outcome could have ramifications for Major League Baseball": The Boston Globe contains this article today.
Posted at 07:20 AM by Howard Bashman


"Concern Mounts as Bacteria Resistant to Antibiotics Disperse Widely": This article appears today in The New York Times.
Posted at 07:10 AM by Howard Bashman


"Prosecutor Wins Right To Damages": The New York Sun today contains an article that begins, "A federal appeals court has ruled in favor of a former Brooklyn prosecutor who was demoted after he said his borough was the best place for a prosecutor to work because 'we've got more dead bodies per square inch than anybody else.'"

My earlier coverage appears at this link.
Posted at 07:02 AM by Howard Bashman



"A Victory for Cleaner Air": This editorial appears today in The New York Times.
Posted at 06:58 AM by Howard Bashman


"Judge Orders Justice Department Investigation of Leak to CBS Report": Josh Gerstein has this article today in The New York Sun.
Posted at 06:48 AM by Howard Bashman


"Misconceiving Reproductive Rights: The Crucial Difference Between 'Pro-Choice' and 'Pro-Abortion.'" Sherry F. Colb has this essay online today at FindLaw.
Posted at 06:45 AM by Howard Bashman


Monday, August 21, 2006

"Judge Throws Out Charges in Padilla Case": This article will appear Tuesday in The New York Times.

And law.com reports that "Miami Federal Judge Tosses Lead Charge in Padilla Terror Conspiracy Case."
Posted at 11:00 PM by Howard Bashman



The Tenth Circuit demonstrates one method for dealing with the prospective-only flaw found in proposed Federal Rule of Appellate Procedure 32.1 -- pretend the flaw doesn't exist: Proposed Federal Rule of Appellate Procedure 32.1, as approved by both the Judicial Conference of the United States and the U.S. Supreme Court, only requires federal appellate courts to allow citation to unpublished and non-precedential federal judicial opinions issued on or after January 1, 2007.

In March 2006, I wrote an "On Appeal" column for law.com criticizing the proposed rule's prospective-only nature. The U.S. Court of Appeals for the Tenth Circuit today posted online its proposed rules effective January 1, 2007. Both those proposed rules and the explanatory memorandum accompanying them ignore that proposed FRAP 32.1 contains the prospective-only limitation by omitting the rule's prospective-only language.

The Tenth Circuit is currently a jurisdiction that permits, but discourages, citations to its own non-precedential rulings. It would be useful if the new Tenth Circuit local rule addressed whether that discouragement will continue to apply to that court's non-precedential opinions issued before January 1, 2007. In any event, I anticipate that the court will correct its omission of a portion of proposed FRAP 32.1 in the very near future.
Posted at 10:30 PM by Howard Bashman



Sailing takes him away, but paying federal employment taxes does nothing for him: The U.S. Court of Appeals for the Fifth Circuit today issued its ruling in Christopher Cross, Inc. v. United States.

[Apologies in advance should it turn out that this case involves a trucking company rather than the singer, whose web site's home page is here]
Posted at 07:58 PM by Howard Bashman



Some good news for "Best" and "Super" lawyers in New Jersey: The Newark (N.J.) Star-Ledger on Saturday published an article headlined "Court gets into battle on lawyers' advertising" that begins, "The state Supreme Court yesterday weighed in on the ongoing battle in the New Jersey's legal community over attorney advertising. The court put the brakes on a ruling last month by the Committee on Attorney Advertising that prohibits lawyers from touting their inclusion on two lists -- 'Super Lawyers' and 'Best Lawyers in America.'"

And The Associated Press reports that "N.J. high court gives 'Super Lawyers' temporary reprieve."

My earlier coverage can be accessed here and here. In the interest of full disclosure, I have been designated a Pennsylvania "Super Lawyer" in the appellate category in 2005 and 2006, and in 2005 the Pennsylvania Super Lawyers magazine contained an article about me written by that publication's staff.
Posted at 05:48 PM by Howard Bashman



"The Novelist and His Old Boss Meet Again, in the Courtroom": On July 13, 2004, The New York Times published an article that begins, "According to Robert C. Reuland's lawyer, his rights were violated when the Brooklyn district attorney, Charles J. Hynes, fired him as an assistant district attorney after he made a few incendiary comments to a magazine writer. But according to a lawyer representing Mr. Hynes, Mr. Reuland is a liar with a 'condescending, arrogant attitude' who 'acts like a spoiled child' and had no business being a prosecutor."

Ultimately, as reported in a NYTimes article from September 2004 headlined "Ex-Prosecutor Can Collect Jury Award, Judge Rules," a federal court jury awarded $30,000 in favor of the former prosecutor turned novelist. The Associated Press's report on the jury's verdict was headlined "Mixed verdict in former N.Y. prosecutor's free-speech suit."

Today, a divided three-judge panel of the U.S. Court of Appeals for the Second Circuit issued an opinion affirming the jury verdict.

The NYTimes in July 2004 published a profile of the novelist headlined "Caught Between the Law and the Written Word." And the novelist's web site can be accessed here.
Posted at 05:32 PM by Howard Bashman



"Judge throws out terror charge in Padilla case": The Miami Herald provides a news update that begins, "The U.S. government's high-profile terror case against Jose Padilla and two other Muslims has suffered another serious setback as their Miami trial looms in January."

And CNN.com reports that "Judge drops Padilla terror charge; Prosecutors told to choose between two remaining counts."

You can access last Friday's ruling of the U.S. District Court for the Southern District of Florida at this link. The "Southern District of Florida Blog" provides this coverage of the ruling.
Posted at 04:17 PM by Howard Bashman



"Supreme Court Suspends Jailed Texas AG": The Associated Press provides this report.

You can access at this link the Order List that the Supreme Court of the United States issued today.
Posted at 03:50 PM by Howard Bashman



"The Ninth Circuit Court of Appeals hears oral argument in Keshishian v. Gonzales": That oral argument, which occurred last Wednesday before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, was featured on this past Saturday's broadcast of C-SPAN's "America & the Courts." You can view the program online, on-demand by clicking here (RealPlayer required). The three-judge panel consisted of Circuit Judges Alex Kozinski, Diarmuid F. O'Scannlain, and Jay S. Bybee.
Posted at 03:44 PM by Howard Bashman


Seventh Circuit adopts a presumptive sanction of $4,000 for a frivolous tax appeal: On July 5, 2006, I had a post titled "Circuit Judge Frank H. Easterbrook has harsh words both for tax protesters filing frivolous appeals and for the U.S. Department of Justice's Tax Division, which may have overstated the cost of responding to such appeals" about a ruling issued that day.

In that earlier ruling, the Seventh Circuit asked the parties to file additional memoranda concerning the legal services for which the United States must pay to defend frivolous appeals in tax-protest cases. In a follow-up ruling issued today, Circuit Judge Easterbrook has more harsh words for the Tax Division. Today's bottom-line, as before, is that the Seventh Circuit has rejected the Tax Division's request to set the presumptive sanction in tax-protest cases at $8,000.
Posted at 03:15 PM by Howard Bashman



"Ex-Athletic Director Loses Sex Bias Case; Judge rules Lafayette College didn't improperly fire plaintiff": In July 2003, Shannon P. Duffy had this article (free access) in The Legal Intelligencer. Today, a unanimous two-judge panel of the U.S. Court of Appeals for the Third Circuit affirmed in most respects but reinstated the plaintiff's claim under Title IX in accordance with the U.S. Supreme Court's recent ruling in Jackson v. Birmingham Board of Education. You can access today's Third Circuit ruling at this link.
Posted at 02:54 PM by Howard Bashman


Seven dwarfs may be more well-known than U.S. Supreme Court Justices, but judge from the Philippines who claimed to have consulted imaginary mystic dwarfs proves unable to retain his post: Recently, I linked here to a Reuters report headlined "Snow White's dwarfs more famous than US judges: poll."

At about the same time, from the Philippines, The Manila Standard was reporting that "Dwarfs can’t help 'paranormal judge.'" And The Manila Times provided a report headlined "SC on 'dwende' judge."

The ruling that the Supreme Court of the Philippines issued earlier this month refused to reconsider that court's ruling from March 2006. Following the earlier ruling, the court issued a press release entitled "Judge Separated from Service Due to Psychosis."

In other press coverage, BBC News reported on Friday that "Filipino 'dwarf' judge loses case; A Philippines judge who said he consulted imaginary mystic dwarves has failed to convince the Supreme Court to allow him to keep his job" (via RNLA's "Judicial Confirmation Blog"). Agence France Presse reports that "Mystic dwarf judge sacked." And The Washington Post Online's "OFF/beat" blog offers these thoughts.

Finally, in coverage of the earlier ruling, The Manila Times reported that "Judge with spirit 'pals' dismissed."
Posted at 12:33 PM by Howard Bashman



In today's mail: An advance reading copy of "Confirmation Wars: Preserving Independent Courts in Angry Times," by Benjamin Wittes.

And from The Green Bag, a certificate entitling me to one Justice Anthony M. Kennedy bobblehead doll.
Posted at 12:00 PM by Howard Bashman



"Not Qualified: The American Bar Association and its role in our confirmation process." Ed Whelan has this essay in the August 28, 2006 issue of National Review.
Posted at 11:32 AM by Howard Bashman


Unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit holds unconstitutional a Missouri criminal statute that regulates advertising by businesses offering sexually explicit entertainment or materials: You can access today's ruling at this link.
Posted at 11:22 AM by Howard Bashman


"Finding a Friendly Court Is Not So Easy": In the Week in Review section of yesterday's issue of The New York Times, Jonathan D. Glater had an article that begins, "Planning a legal battle on a big constitutional case would seem to have little in common with making a real estate decision, but any lawyer will tell you that often the same thing matters in both arenas: location. When lawyers at the American Civil Liberties Union were deciding where to file their case against the Bush administration's policy of wiretapping the international communications of some Americans without a court warrant, they chose Detroit, more specifically the United States District Court there."
Posted at 10:35 AM by Howard Bashman


"Alito touts ECC police academy grads; There is a moment of silence for slain detective Shields": Last Thursday, The Newark (N.J.) Star-Ledger contained an article that begins, "Supreme Court Justice Samuel A. Alito Jr. yesterday called law enforcement one of the highest forms of public service and said the field has experienced marked improvement over recent years."
Posted at 10:32 AM by Howard Bashman


"The Garter Belt," nude dancing, and res judicata: Thanks to a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, the new week begins with a nude dancing decision. Unlike most nude dancing decisions, however, this morning's ruling principally concerns whether a state court's rejection of a constitutional challenge to a Michigan town's ordinance that prohibits nudity at "any establishment licensed or subject to licensing by the Michigan Liquor Control Commission" should preclude a topless dancer at the establishment (Leggs Lounge, owned by The Garter Belt, Inc.) from challenging the ordinance as unconstitutional in federal court. The majority holds that preclusion applies.

Circuit Judge Ronald Lee Gilman's dissenting opinion begins, "The majority's decision in this case leads to an unnecessarily broad and perverse result--that once the Michigan courts have determined that a state statute complies with the federal Constitution, the federal courts are precluded from ever passing on the issue."
Posted at 10:10 AM by Howard Bashman



"Justice will grind to a halt with 9th Circuit vacancies": This editorial appeared last Friday in The Times-News of Twin Falls, Idaho.
Posted at 08:25 AM by Howard Bashman


In today's issue of Legal Times: The publication contains articles headlined "Has Time Softened D.C. Circuit Nominee Peter Keisler's Partisan Edges? A Foot Soldier Of the Revolution: Keisler a Key Player in Terrorism and Tobacco" and "Judge Slams Lawyers For Role in Hiding Tobacco Risks" (both free access).
Posted at 08:22 AM by Howard Bashman


"Affirmance, Reversal and the NSA Wiretap Case: Ruling on domestic surveillance refocuses attention on trial court opinions' impact on appellate proceedings." The brand new installment of my weekly "On Appeal" column for law.com can be accessed here.
Posted at 07:30 AM by Howard Bashman


"Who Owns the Back of a Baseball Card? A legal ruling hits it out of the park." Law Professor Jack Williams has this op-ed today in The Los Angeles Times.
Posted at 07:28 AM by Howard Bashman


"Columbia-Educated Doctor Will Argue He Had To Help Al Qaeda": This article appears today in The New York Sun.
Posted at 07:25 AM by Howard Bashman


"A judicial hit piece": The Washington Times contains this editorial today.

And yesterday, The Chicago Tribune contained an editorial entitled "Eavesdropping within the law." Also in yesterday's newspaper, Law Professor Jonathan Turley had an op-ed entitled "NSA ruling much like a pig in parlor."
Posted at 07:24 AM by Howard Bashman



"Lethal Injection -- Still Lethal: Fighting the death penalty by calling lethal injection 'cruel' misses the crucial objection." This editorial appears today in The Los Angeles Times.
Posted at 07:14 AM by Howard Bashman


"Contesting the Bar to Asylum; The Justice Department asks for review of a Congolese woman's case; Activists say the denial implies rape is OK in investigations": Henry Weinstein has this article today in The Los Angeles Times.
Posted at 07:11 AM by Howard Bashman


"At Guantanamo, Caught in a Legal Trap; 6 Algerians Languish Despite Foreign Rulings, Dropped Charges": This front page article appears today in The Washington Post.
Posted at 07:05 AM by Howard Bashman


"British Law Against Glorifying Terrorism Has Not Silenced Calls to Kill for Islam": The New York Times contains this article today.
Posted at 07:00 AM by Howard Bashman


"1 in 8 murderers halted their appeals to speed execution": This article appears today in USA Today.
Posted at 06:58 AM by Howard Bashman


"Blawg Review #71": Available online here, at "QuizLaw."
Posted at 06:45 AM by Howard Bashman


Sunday, August 20, 2006

Available online from National Public Radio: Today's broadcast of "Weekend Edition Sunday" contained an audio segment entitled "Legal Precedent and the Bush-Gore Ruling."

Yesterday's broadcast of "All Things Considered" contained audio segments entitled "Negotiator of '98 Deal Weighs New Tobacco Ruling" and "Ruling Sounds Death Knell for 'Light' Cigarette."

And Friday's broadcast of "All Things Considered" contained an audio segment entitled "Debating the Fate of Domestic Wiretapping" featuring Law Professors Jeffrey Rosen and Douglas W. Kmiec.

RealPlayer is required to launch these audio segments.
Posted at 10:04 PM by Howard Bashman



"Dismissal of Lawsuit Against CU Appealed": The Associated Press provides a report that begins, "Lawyers for a woman who alleges she was raped by University of Colorado football players or recruits in 2001 have filed an appeal of a federal judge's dismissal of her lawsuit against the school."
Posted at 09:08 PM by Howard Bashman


"Court: Members of Congress not immune from discrimination suits." McClatchy Newspapers provide this report. My earlier coverage appears here.
Posted at 08:23 PM by Howard Bashman


"Blogging lawprofs, go back to your law review articles": Ann Althouse today has a post at her blog that begins, "Over at Balkinization, lawprof Larry Tribe writes a long-winded post defending Judge Anna Diggs Taylor's opinion in ACLU v. NSA. He thinks we bloggers have gone too far criticizing her, when there's so much reason to criticize the administration."
Posted at 08:10 PM by Howard Bashman


Philadephia Phillies 12, Washington Nationals 10: My son and I had the pleasure of attending this afternoon's baseball game at Citizens Bank Park. By the end of the fourth inning, the Phillies enjoyed a 10-1 lead. But that comfortable margin was not to last long, as the Nationals only trailed 10-8 after batting around in the sixth inning. And by the middle of the eighth inning, the Phillies' lead was only one run.

The Phillies had themselves batted around in the third inning, perhaps explaining how a game that lasted only eight and a half innings took three hours and thirty-seven minutes to complete. You can access the box score at this link, while wraps are available online here and here.

Next on the baseball agenda for my son and I -- attending this Thursday's game at Camden Yards in Baltimore, where the Orioles will be hosting the Minnesota Twins. That game will feature a Melvin Mora bobblehead give-away.
Posted at 08:05 PM by Howard Bashman



"Sept. 11 plaintiffs wait for answers, resolution; Nearly 5 years later, lawsuits are stalled": This article appears today in The Boston Globe.
Posted at 09:28 AM by Howard Bashman


"U.S. Measures Anti-Terror Laws vs. Britain's; Some in the GOP want a more flexible system, such as that used to uncover an alleged plot; Critics say such changes would trample rights": The Los Angeles Times contains this article today.
Posted at 09:25 AM by Howard Bashman


Saturday, August 19, 2006

"The Bloggerati response to Judge Taylor's ruling in the NSA Case": Law Professor Laurence H. Tribe has this guest post today at the "Balkinization" blog.
Posted at 11:58 PM by Howard Bashman


"GOP Sees Strategic Advantage in Court Loss on Wiretapping; Keeping terrorism the topic of the day is thought to exploit a vulnerability of Democrats -- who'd rather talk about Iraq": Maura Reynolds has this article today in The Los Angeles Times.

The Washington Post reports today that "Ruling Against Wiretaps Further Sharpens Partisan Divide."

The Baltimore Sun reports that "Bush drive for tougher terror laws picks up; Critics worry measures will weaken civil liberties."

And The Washington Times reports that "Bush slams NSA surveillance critics."
Posted at 11:55 PM by Howard Bashman



"Marshall gets life in jail; Federal court nixed a death sentence, but wife-murderer Robert O. Marshall gets max after emotional hearing; One son wanted mercy; another son said he should die in prison": The Newark (N.J.) Star-Ledger contains this article today.
Posted at 11:52 PM by Howard Bashman


"Anti-Castro Disclosures Could Help 'Cuban Five'; Convicted in Miami on espionage charges five years ago, the exiles may still win a new trial": This article appears today in The Los Angeles Times.
Posted at 11:44 PM by Howard Bashman


"Judge vows quick decision on ballot issue; Anti-affirmative action measure's disputed vote roils opponents, who filled federal courtroom": The Detroit News today contains an article that begins, "A federal judge on Friday promised a speedy decision on whether to remove from Michigan's November ballot an initiative to ban affirmative action. Lawyers in a lawsuit over the ballot measure, called the Michigan Civil Rights Initiative, made their final arguments Friday and await a ruling from U.S. District Judge Arthur J. Tarnow."
Posted at 11:40 PM by Howard Bashman


"Smoke but No Fire: A tobacco decision makes an important symbolic statement, but it won't prevent smoking deaths." This editorial appears today in The Washington Post. The newspaper today also contains an article headlined "Tobacco Ruling Seen as a Win for Shareholders."

And The New York Times on Sunday will contain an editorial entitled "Tobacco Racketeers Get Off Easy."
Posted at 11:32 PM by Howard Bashman



"Every Executive Needs a Limit: Judge Taylor got it right on wiretapping." Law Professor Erwin Chemerinsky has this jurisprudence essay online at Slate.
Posted at 11:27 PM by Howard Bashman


"Save the Endangered Whistle-Blower": This editorial appears today in The New York Times.
Posted at 11:20 PM by Howard Bashman


"Ongoing misconceptions about Judge Taylor's opinion": Glenn Greenwald has this post today at his "Unclaimed Territory" blog.
Posted at 11:12 PM by Howard Bashman


"Using Nearly Nude Pictures, Child Sex Sites Test Laws": This article will appear Sunday in The New York Times.
Posted at 11:08 PM by Howard Bashman


"Judge: Marker can stay on lawn." The Tulsa World today contains an article that begins, "A granite monument to the Ten Commandments planted in the soil of the Haskell County Courthouse lawn in Stigler nearly two years ago will stay there because it does not violate the constitutional divide between religion and government, a Muskogee federal judge ruled Friday."

And The Oklahoman reports today that "Court says commandments monument can stay."

My earlier coverage appears at this link.
Posted at 11:05 PM by Howard Bashman



"The shocking decision in ACLU v. NSA": Ann Althouse has now read the decision and has this post at her blog today.
Posted at 10:05 PM by Howard Bashman


"Ex-judge sentenced to 4 years": The Tulsa World today contains an article that begins, "Former Creek County Judge Donald Thompson was led from a courtroom in handcuffs Friday to immediately begin serving a four-year prison term for indecent exposure."

The Oklahoman reports today that "Ex-judge Thompson sentenced to four years in prison."

And The Sapulpa (Okla.) Daily Herald reports that "Thompson sentenced to four years."
Posted at 09:50 PM by Howard Bashman



Interesting articles recently posted online at SSRN: Law Professor John Bronsteen posted online yesterday an article titled "Against Summary Judgment" (abstract with link for download). I'm told that this blog is cited in one of the article's footnotes.

And Law Professor Adam Mossoff on Wednesday posted online an article titled "Patents as Constitutional Private Property: The Historical Protection of Patents under the Takings Clause" (abstract with link for download). The abstract begins, "Conventional wisdom maintains that early courts never secured patents as constitutional private property under the Takings Clause. In examining long-forgotten judicial opinions and legislative records, this Essay reveals that this is a profoundly mistaken historical claim."
Posted at 11:30 AM by Howard Bashman



"Hard to Predict 6th Circuit's NSA Ruling": The Associated Press provides this report.

Relatedly, the brand new installment of my weekly "On Appeal" column for law.com is headlined "Affirmance, Reversal and the NSA Wiretap Case; Ruling on domestic surveillance refocuses attention on trial court opinions' impact on appellate proceedings." Three paragraphs from the end of that essay, I write:

Given the intense attention that the trial court's opinion has already received, I expect that soon attention will turn to the judges of the 6th Circuit, who have shown themselves not always to be one happy family in high-profile cases of national importance. The 6th Circuit is home to some of the nation's most thoughtful liberal and conservative jurists, and when they serve together on a particularly divisive case it is not unusual for clashes to occur.
The link contained in that sentence in the law.com version of the essay isn't working properly as of this moment, but in the above quotation I've included the proper link.
Posted at 11:15 AM by Howard Bashman


"Ethics panel admonishes Nuss": The Wichita Eagle today contains an article that begins, " A judicial ethics panel admonished Kansas Supreme Court Justice Lawton Nuss on Friday for discussing a long-running school finance lawsuit with two state senators." In addition, the newspaper contains an editorial entitled "Nuss' bad judgment."

The Kansas City Star reports today that "Board admonishes judge; Judicial panelists say canons of behavior were violated by state high court member."

The Topeka Capital-Journal reports that "Ethics panel scolds justice; Commission rules Nuss broke code of conduct by speaking to senators."

And The Associated Press reports that "Kansas Justice Admonished Over Conduct."
Posted at 11:10 AM by Howard Bashman



"Is Newman Stepping Down?" The Legal Intelligencer yesterday posted online a news update (free access) that begins, "For Pennsylvania Supreme Court Justice Sandra Schultz Newman, the past year-and-a-half has brought a dramatic series of ups and downs. This past October, her husband, Julius, a renowned cosmetic surgeon, died following a lengthy illness. About a month later, Newman was elected to a second 10-year term as a justice, but it was, in many respects, something of a Pyrrhic victory."

In somewhat related news, on Thursday The Herald-Standard of Uniontown, Pennsylvania published an interesting article headlined "Leading law expert asks state's highest court for reforms."
Posted at 11:00 AM by Howard Bashman



"Pataki Appoints Fifth Republican to Highest Court": The New York Times today contains an article that begins, "Gov. George E. Pataki nominated an upstate Republican on Friday to be his fifth appointee on the seven-member Court of Appeals, moving to assure that his imprint on the state’s highest court will last long into the next governor’s term."

And The Buffalo News reports today that "Pigott respected on both sides of aisle; Top court appointee reflects Pataki's politics but is widely praised as bright, fair-minded." And Thursday's newspaper contained an article headlined "Pigott seen as prospect for Court of Appeals; Considered strong on Pataki's list of 7."

The Albany Times Union reports today that "Pataki opts for a new judge; Court of Appeals nominee Eugene F. Pigott Jr. would replace lone African-American member." And earlier this week, the newspaper reported that "Pataki urged to factor diversity in court pick."

The Journal News of Westchester, New York reports that "Pataki denies reappointment to lone black judge."

And The New York Law Journal reports that "Pataki Nominates Pigott for High Court; Would Be First Buffalo-Area Judge Since 1980s" (free access).
Posted at 10:45 AM by Howard Bashman



Law bloggers mentioned on the front page of today's issue of The New York Times: Both Law Professor Jack M. Balkin of the "Balkinization" blog and I are mentioned as law bloggers on the front page of today's newspaper of record in the opening paragraphs of Adam Liptak's article headlined "Experts Fault Reasoning in Surveillance Decision."

I'm mentioned in the third and fourth paragraphs of the article, which state:

Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments.

"It does appear," Mr. Bashman said, "that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority."

The best copy of today's front page available online is a PDF copy from The Newseum. The newspaper's own web site provides images of both the New York City edition and the national edition. And The Newseum also provides a JPEG of today's front page.

Law bloggers mentioned on the front pages of major newspapers isn't yet a category that Ian Best catalogues at his "3L Epiphany" blog. But Ian does have an interesting new post titled "Law Review Articles Citing Legal Blogs."
Posted at 10:40 AM by Howard Bashman



Friday, August 18, 2006

Oklahoma federal district judge rejects argument that Ten Commandments Monument on the lawn of the Haskell County courthouse violates the Establishment Clause and must be removed: You can access today's ruling of the U.S. District Court for the Eastern District of Oklahoma at this link. The courthouse is located in the town of Stigler, Oklahoma.

In news coverage, The Associated Press reports that "Judge Allows Ten Commandments Monument." And back in May 2006, The AP reported that "Okla. display of Ten Commandments goes to trial." Today's ruling comes on a day when The AP also reported that "Commandments monuments erected in 2 Okla. counties."

Following today's ruling, the Alliance Defense Fund issued a press release entitled "Still standing: Court declares Oklahoma Ten Commandments display constitutional; Monument defended by ADF attorneys withstands legal challenge by ACLU."
Posted at 11:58 PM by Howard Bashman



"Experts Fault Reasoning in Surveillance Decision": Adam Liptak will have this article, in which I and various other law bloggers are quoted, Saturday in The New York Times.

And the newspaper tomorrow will also contain an article by Eric Lichtblau headlined "Bush Predicts Appeals Court Will Lift Ban on Wiretaps."
Posted at 11:50 PM by Howard Bashman



"Affirmance, Reversal and the NSA Wiretap Case; Ruling on domestic surveillance refocuses attention on trial court opinions' impact on appellate proceedings": The brand new installment of my "On Appeal" column for law.com can be accessed at this link.
Posted at 11:48 PM by Howard Bashman


Lakewood BlueClaws 4, Hagerstown Suns 0: This evening, my son and I had the pleasure of watching the Philadelphia Phillies single-A affiliate beat the New York Mets single-A affiliate. You can access the box score at this link, while wraps are here and here.

Despite this evening's "Snakes In A Ballpark" promotion, I'm pleased to report that no snakes appeared in the area of the ballpark where we were seated. And although pictured here, the green eyeball did not participate in this evening's race; the public address announcer reported that it was on the disabled list. As for the outcome, the red eyeball beat the blue by a lash.
Posted at 11:33 PM by Howard Bashman



"Bush Defends Surveillance Program": The Associated Press provides this report.
Posted at 03:54 PM by Howard Bashman


"The Supreme Court was unanimously wrong in Rumsfeld v. FAIR." So begins the abstract to an article (with link for download) that Law Professor Dale Carpenter posted online today at SSRN.
Posted at 03:40 PM by Howard Bashman


Is Pennsylvania death row inmate Hubert Michael a death penalty volunteer, or isn't he, and does he remain competent to decide the answer to that question? The U.S. Court of Appeals for the Third Circuit issued this decision today.
Posted at 03:24 PM by Howard Bashman


“To err is human, but to really foul things up requires a computer.” A unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit today invokes that quote from the Farmers' Almanac in dismissing an appeal in a criminal case.

The reason for the dismissal is that the defendant's counsel mistakenly filed, using the federal district court's electronic filing system, a notice of appeal prepared for filing in a different case. Thus, the notice of appeal failed correctly to specify either the order appealed from or the party taking the appeal. Then, according to today's opinion, once the district court brought these errors to the attention of defendant's counsel, the lawyer failed to confirm whether the proper notice of appeal had been electronically filed and later argued that the incorrect notice of appeal sufficed to appeal from an order not specified in the notice on behalf of a client not specified in the notice.

You can access today's ruling at this link.
Posted at 03:00 PM by Howard Bashman



"Feds Appeal Ruling on Surveillance": The Associated Press provides this report. The parties' stay stipulation only applies until the district court considers the federal government's request for a stay pending appeal.
Posted at 02:48 PM by Howard Bashman


"Judge Gets 4 Years for Exposing Himself": From Oklahoma, The Associated Press provides a report that begins, "A former judge convicted of exposing himself while presiding over jury trials by using a sexual device under his robe was sentenced Friday to four years in prison."

And The Oklahoman provides a news update headlined "Ex-judge gets 4-year jail term."

In an article previewing the sentencing, The Sapulpa (Okla.) Daily Herald today contains an article headlined "Thompson sentencing today."
Posted at 02:45 PM by Howard Bashman



"NSA Wiretap Appeal: Does a Poorly-Reasoned Trial Court Opinion Diminish the Odds of Affirmance?" That's the preliminary title for next Monday's installment of my weekly "On Appeal" column, which law.com will post online here around 10:30 p.m. eastern time tonight. As I mention in the forthcoming column, it will be interesting to see whether the U.S. Department of Justice, seeking to avoid the possibility of having the case randomly assigned to a liberal-dominated three-judge panel, will request an initial hearing en banc from the U.S. Court of Appeals for the Sixth Circuit.
Posted at 12:15 PM by Howard Bashman


"We conclude that summary judgment was appropriate and that the district court correctly held that Brick Oven, as used to identify pizza, is a generic term." Just in time for lunch, the U.S. Court of Appeals for the Eighth Circuit today issued this opinion affirming the rejection of a trademark infringement claim regarding the use of the term "Brick Oven" in describing frozen pizzas.
Posted at 12:10 PM by Howard Bashman


En banc D.C. Circuit addresses whether, and in what circumstances, the defendant in an action brought pursuant to the Congressional Accountability Act of 1995 may assert the Speech or Debate Clause as a jurisdictional bar, thereby requiring summary dismissal of the action: Eight judges participated in the decision, which consists of four separate opinions. It appears, however, that all judges concur in today's outcome. As the lead opinion explains, the Act in question "confers on 'covered employees' rights and remedies drawn from various labor and employment statutes not previously applicable to the legislative branch."
Posted at 10:34 AM by Howard Bashman


On today's broadcast of NPR's "Morning Edition": The broadcast contained audio segments entitled "Judge Rules Against Government Wiretapping Program" and "Judge Rules Against Tobacco Industry for Conspiracy."
Posted at 09:03 AM by Howard Bashman


"The Bush doctrine under surveillance: The first court ruling on NSA's warrantless spying delivers another stinging rebuke to the president's wartime power grab." Glenn Greenwald has this essay today at Salon.com.

At National Review Online, Bryan Cunningham has an essay entitled "Amateur Hour? A judge's first-year failing-grade opinion."

And at the "Balkinization" blog, Marty Lederman offers these thoughts.
Posted at 08:55 AM by Howard Bashman



"The Kelo Backlash: What the Supreme Court touched off with its eminent domain decision." Jonathan V. Last has this essay in the August 21, 2006 issue of The Weekly Standard.
Posted at 08:50 AM by Howard Bashman


"Wiretap Project Ruled Illegal; Warrantless domestic eavesdropping violates the Constitution, a judge rules, sharply rebuffing claims that Bush has unwritten powers": Henry Weinstein has this article today in The Los Angeles Times. The newspaper also contains an editorial entitled "Bush: Unconstitutional, Again; The president and Congress should spend more time following the law and less trying to find creative ways to break it."

Today in The Boston Globe, Charlie Savage reports that "Judge's ruling bars warrantless wiretaps; Contends program intrudes on rights."

In The San Francisco Chronicle, Bob Egelko reports that "Judge's rejection of Bush wiretaps just first round."

The Baltimore Sun reports that "NSA spying ruled illegal; Federal judge strikes down warrantless domestic eavesdropping."

The Washington Times reports that "NSA surveillance struck down."

USA Today reports that "Wiretap program illegal; Bush administration to appeal judge's ruling." The newspaper also contains an editorial entitled "Wiretap ruling affirms that presidents aren't monarchs; If eavesdropping law needs to be strengthened, fix it, don't break it" and an op-ed by James S. Robbins entitled "NSA program is vital tool; Judge's abstract ruling in wiretap case deserves to be overturned."

The Detroit News contains articles headlined "Bush wiretaps illegal; Feds will appeal Detroit judge's ruling" and "Judge was immersed in civil rights movement." The newspaper also contains an editorial entitled "Operate within law on electronic snooping; Judge rules that warrantless intercepts violate Constitution."

The Detroit Free Press contains an article headlined "Challenge promised over ruling in spy case; Detroit judge: Program illegal." The newspaper also contains an editorial entitled "A Detroit Judge with Backbone."

The New York Times contains an editorial entitled "Ruling for the Law."

The Washington Post contains an editorial entitled "A Judicial Misfire: The first federal court opinion on warrantless NSA surveillance is full of sound and fury."

The Wall Street Journal contains an editorial entitled "President Taylor: A federal judge rewrites the Constitution on war powers" (free access).

And The New York Sun contains an editorial entitled "Ruling for the Terrorists."
Posted at 07:25 AM by Howard Bashman



"Big Tobacco Is Guilty of Conspiracy; Major cigarette makers lied for decades about the risks of smoking, a judge rules; Her words are harsh, but her sanctions are light": The Los Angeles Times contains this article today.

The Chicago Tribune reports today that "Tobacco loses big, but not in dollars; Judge: Industry broke racketeering laws."

And USA Today reports that "Judge's ruling slams Big Tobacco; But companies don't have to pay $14B."
Posted at 07:15 AM by Howard Bashman



"Mannequin in Suit -- Lawsuit, That Is; Westminster woman sues J.C. Penney after she and the dummy clash over a blouse": This article appears today in The Los Angeles Times.
Posted at 07:10 AM by Howard Bashman


"Political chasm on judges": U.S. Senator John Cornyn (R-TX) has this op-ed today in The Washington Times.
Posted at 07:05 AM by Howard Bashman


"Discrimination suit vs Angels to stand": The Associated Press provides a report that begins, "A judge refused Thursday to dismiss a lawsuit that claimed the Angels discriminated against men by giving tote bags to only women during a Mother's Day baseball game."
Posted at 06:58 AM by Howard Bashman


A Cross We Want to Bear: San Diegans stand up for religion in the public square. This editorial (free access) appears today in The Wall Street Journal.
Posted at 06:48 AM by Howard Bashman


"Silicosis Judge Erupts in Fury In Case of the Missing X-Rays": Josh Gerstein has this article today in The New York Sun.
Posted at 06:45 AM by Howard Bashman


"Government Lawyers' Role in the War on Terror: Do They Have a Duty to Argue What's Right, Not Just What They Deem Legally Defensible? And Should the 'Constitutional Avoidance' Doctrine Play a Role?" Edward Lazarus has this essay online today at FindLaw.
Posted at 06:42 AM by Howard Bashman


Thursday, August 17, 2006

"Petition For Cert Filed In Establishment Clause Standing Case": As noted in this post at the "Religion Clause" blog, the federal government has filed a petition for writ of certiorari in Grace v. Freedom from Religion Foundation, Inc. seeking review of the Seventh Circuit's ruling in that case. My coverage of that ruling and the order denying rehearing en banc can be accessed here and here, respectively.
Posted at 11:08 PM by Howard Bashman


"Big Tobacco Lied to Public, Judge Finds' Industry Escapes Huge Penalties, but Ordered to Correct False Advertising": This front page article will appear Friday in The Washington Post.

And The New York Times on Friday will report that "New Limits Set Over Marketing for Cigarettes."
Posted at 10:55 PM by Howard Bashman



"The 'Bloggership' audio": Ann Althouse writes here today that "I'm only noticing just now * * * that the audio of my panel at the Harvard 'Bloggership' conference is available on line. " Since I was on the same panel as Ann, that's my panel too. You can download the 40MB mp3 file via this link.
Posted at 10:50 PM by Howard Bashman


"Election Law at the High Court: Big Cases Leave Little Footprints." Law Professor Edward B. Foley has this essay at law.com.
Posted at 10:44 PM by Howard Bashman


"NSA Surveillance and the First Amendment": Daniel J. Solove has this post at "Concurring Opinions."
Posted at 10:40 PM by Howard Bashman


"Arrest in Ramsey Case Presents More Questions": According to an article that will appear Friday in The New York Times, "But by day’s end, it remained unclear whether Mr. Karr’s confession was genuine or the product of a troubled, attention-seeking man who had already exhibited a fervent fascination in the sexual abuse of children in general, and in the death of JonBenet Ramsey in particular."
Posted at 10:38 PM by Howard Bashman


"U.S. Judge Finds Wiretap Actions Violate the Law": Adam Liptak and Eric Lichtblau will have this article Friday in The New York Times.

The Washington Post on Friday will have a front page article headlined "Judge Rules Against Wiretaps; NSA Program Called Unconstitutional."

And McClatchy Newspapers report that "Judge strikes down the warrantless eavesdropping program."
Posted at 10:30 PM by Howard Bashman



Available online from National Public Radio: Today's broadcast of "All Things Considered" contained audio segments entitled "Bush's Wiretaps Ruled Unconstitutional" and "Cigarette Makers: They Deceived the Public for Years."

And today's broadcast of "Day to Day" contained an audio segment entitled "Warrantless Eavesdropping Ruled Unconstitutional" featuring Nina Totenberg.

RealPlayer is required to launch these audio segments.
Posted at 10:22 PM by Howard Bashman



Tenth Circuit rejects legal challenge to the Food and Drug Administration's regulation banning Ephedra sales in the United States: You can access today's ruling at this link. More background on Ephedra can be accessed here via the National Institutes of Health.

In early press coverage, The Salt Lake Tribune provides a news update headlined "Federal appeals court upholds ban on ephedra; ruling reverses Utah judge."
Posted at 09:07 PM by Howard Bashman



"A jury returned a nearly $9 million judgment against Ford Motor Company for injuries sustained by Barry William Muth Sr. while traveling in a 1996, four-door Ford Crown Victoria." So begins an opinion that a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued today. Today's ruling affirms that judgment, arising from an automobile accident that occurred in Riyadh, Saudi Arabia. Because the appeal was not heard in the Sixth Circuit, no Saudi-born appellate judges were on the panel.
Posted at 09:00 PM by Howard Bashman


"Snakes In A Ballpark (Friday, Lakewood BlueClaws, South Atlantic League)": In response to this post from earlier today noting that tomorrow night my son and I will be attending the home game of the Phillies single-A affiliate, the Lakewood BlueClaws, a reader emails to note that tomorrow night's Blue Claws promotion is titled "Snakes In A Ballpark."

As described further here, "On Friday, the much-anticipated suspense-comedy Snakes on a Plane will finally be released to an eager movie-going public. The film stars Samuel L. Jackson and will focus on his heroic attempt to rid an airplane of its unfortunate snake infestation. The BlueClaws have decided to capitalize on this historic pop culture moment and are offering fans the opportunity to interact with real live snakes on the day the movie comes out. Anacondas, pythons and more will be on display at FirstEnergy Ballpark, and fans are invited to touch and take pictures of the slithery reptiles." The official home page of the movie is at this link. (Via "Deadspin").
Posted at 08:40 PM by Howard Bashman



"Businesses Sit Out Fight Over Splitting the 9th Circuit": Lawrence Hurley has this article today in The Daily Journal of California.
Posted at 08:28 PM by Howard Bashman


"Detroit judge rules Bush spying program unconstitutional": The Detroit News provides this update.

The Detroit Free Press provides a news update headlined "Bush surveillance program violates Constitution, judge rules."

Henry Weinstein of The Los Angeles Times provides a news update headlined "Judge Orders Halt to Domestic Spying."

The Associated Press reports that "Judge Nixes Warrantless Surveillance."

Reuters reports that "Court rules secret wiretaps violate rights."

Bloomberg News reports that "Judge Bars Warrantless Anti-Terrorism Surveillance."

And at "SCOTUSblog," Lyle Denniston has a post titled "NSA program struck down by judge."

At "The Volokh Conspiracy," Eugene Volokh has a series of posts about the ruling that you can access via this link, and Orin Kerr is threatening to post there about the ruling in the very near future. Also, at "Balkinization," Jack Balkin offers these thoughts.

Both the opinion and injunctive order that U.S. District Judge Anna Diggs Taylor of the Eastern District of Michigan issued today are available online. Earlier this month, as I previously noted here, The Detroit Free Press published a profile of Judge Taylor headlined "Judge could alter war on terror; Taylor is to rule soon in spying case."
Posted at 06:08 PM by Howard Bashman



"Judge: Tobacco Firms Deceived Smokers." The Associated Press provides a report that begins, "A federal judge ruled Thursday that the nation's top cigarette makers violated racketeering laws, deceiving the public for years about the health hazards of smoking."

Reuters reports that "Tobacco firms avoid stiff damages in U.S. case."

And Bloomberg News reports that "Cigarette Makers Lose in U.S. Racketeering Lawsuit."

Fortunately, today's ruling by U.S. District Judge Gladys Kessler of the U.S. District Court for the District of Columbia is a mere 1653 pages in length (along with 89 other pages of exhibits and such), so there's no reason why you shouldn't hurry to read the whole thing for yourself. Even if you only read one page per day, you can still finish the opinion in just over four and a half years from now. The final judgment and remedial order, by contrast, clock in at a mere eighteen pages.
Posted at 05:52 PM by Howard Bashman



New York Mets 7, Philadelphia Phillies 2: A series sweep for the Phillies was not meant to be, and so the Phillies will have to settle for having taken three out of four games in the most recent series against the division-leading Mets. One bit of good news for the Phillies -- the Cincinnati Reds also lost today, so the Phillies remain only two and a half games behind in the race for the wild card. You can access the box score of today's game at this link, while wraps are available here and here.

On deck tomorrow night for me and my son -- a trip to see the Lakewood BlueClaws, a single A affiliate of the Phillies.
Posted at 05:44 PM by Howard Bashman



Programming note: I have an out-of-the-office event to attend this afternoon. Thankfully I'm not a trial court judge (see here and here). Additional posts will appear later today.
Posted at 10:35 AM by Howard Bashman


"Woman reluctantly returned to jail; Judge says lawyers in her murder trial failed in their defense but says other rulings tied his hands": This article appears today in The Detroit News.

And The Detroit Free Press reports today that "Reluctant judge orders woman convicted of murder back to prison."
Posted at 10:00 AM by Howard Bashman



"County deciding where to appeal Bible display case; Plaintiff's lawyer says the verdict to stand, whatever court is selected": The Houston Chronicle contains this article today. My earlier coverage appears here and here.
Posted at 09:55 AM by Howard Bashman


"Boyle can't be Bush recess appointment": This news brief appears today in The Raleigh News & Observer.

I believe the headline is incorrect in stating that U.S. District Judge Terrence W. Boyle cannot be recess appointed to the Fourth Circuit merely because the U.S. Senate has returned his nomination to the White House, although the nomination's return may deny to Judge Boyle any financial compensation for serving as a recess appointee. Also, there is no indication that Judge Boyle is willing to give up his current life-tenured post as a U.S. District Judge for a recess appointment to the Fourth Circuit that is guaranteed to expire in the absence of Senate confirmation.
Posted at 09:50 AM by Howard Bashman



On today's broadcast of NPR's "Morning Edition": The broadcast contained audio segments entitled "Judge Orders Medical Supervision for Executions" and "On the Trail of Former Death Row Inmates" (RealPlayer required).
Posted at 09:45 AM by Howard Bashman


"Court rules against MHSAA; Another appeal possible in fight over girls sports scheduling": This article appears today in The Detroit Free Press.

The Detroit News today contains an article headlined "Court: Seasons penalize girls; MHSAA officials say they'll continue to appeal decision and there will be no changes in schedules for 2006-07."

And The Grand Rapids Press reports today that "Another appeal likely over girls sports."

My earlier coverage appears at this link.
Posted at 09:40 AM by Howard Bashman



"Disorder in Courthouses Poses a Trial; Aging, cramped buildings with balky elevators and bad plumbing often slow the wheels of justice in Los Angeles": The Los Angeles Times today contains an article that begins, "As wind whipped through her hair and sirens blared in the background, Judge Carolyn B. Kuhl put on her black robe Wednesday, squinted in the afternoon sun and called her court to order right at Commonwealth and 6th streets."

Had Judge Kuhl been confirmed to the Ninth Circuit, she likely would have missed out on the enjoyment of conducting court on the street corner.
Posted at 07:28 AM by Howard Bashman



"Court Ruling Prompts Ban on Groups Sending Fliers Home With Students": The Washington Post contains this article today.

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



"Lawyers Try to Expunge Lay Verdict; Recovery of Assets Thrown in Doubt": This article appears today in The Washington Post.

And The Houston Chronicle reports today that "Motion for Lay to be opposed; Government still wants assets based on verdict."
Posted at 07:15 AM by Howard Bashman



"Mo. Plans Appeal in Inmate Abortion Case": The Associated Press provides this report. My earlier coverage appears here.
Posted at 07:10 AM by Howard Bashman


"Black Jack rescinds housing regulation": The St. Louis Post-Dispatch yesterday contained an article that begins, "Fondray Loving, Olivia Shelltrack and their three children are now considered a family by Black Jack officials. The City Council unanimously agreed Tuesday night to change the ordinance that had prevented the unmarried couple from obtaining an occupancy permit for their five-bedroom home, bringing national attention to the north St. Louis County suburb."
Posted at 07:05 AM by Howard Bashman


"Del. limits on FOIA not legal, court rules; Out-of-staters allowed access to public records": The News Journal of Wilmington, Delaware contains this article today.

And The New York Times reports today that "Court Backs Nonresidents’ Right to Obtain Delaware Documents."

My earlier coverage appears at this link.
Posted at 07:00 AM by Howard Bashman



"Espionage Acting: The Justice Department is prosecuting lobbyists for what reporters do every day." This editorial (free access) appears today in The Wall Street Journal.
Posted at 06:50 AM by Howard Bashman


Wednesday, August 16, 2006

Available online from law.com: Tony Mauro has an article headlined "Could Supreme Court Settle Presidential Signing Scrap? Presidential prerogative has interested Scalia, Alito; But they may not get a chance to weigh in."

And Shannon P. Duffy has an article headlined "At 3rd Circuit, Topless Bar Topples Lewdness Law."
Posted at 10:34 PM by Howard Bashman



"Prosecutors Oppose Clearing Lay's Record": The Associated Press provides this report.
Posted at 10:32 PM by Howard Bashman


Apparently federal appellate court judges can be confirmed in September of a Senatorial election year: The U.S. Senate's executive calendar for September 5, 2006 states that "at 4:30 p.m. on Tuesday, September 5, 2006, the Senate proceed to executive session and immediate consideration of the nomination of Kimberly Ann Moore, of Virginia, to be United States Circuit Judge for the Federal Circuit, with one hour of debate equally divided to be followed by a vote on confirmation at 5:30 p.m., with no intervening action or debate." Moore's faculty bio at the George Mason University School of Law can be accessed here.
Posted at 10:30 PM by Howard Bashman


"End of a Supreme Court Blunder? The exclusionary rule hangs on by one vote." William Tucker has this essay in the August 21, 2006 issue of The Weekly Standard.
Posted at 06:04 PM by Howard Bashman


"Police Say Crime Scene Was Altered": The Washington Post today contains an article that begins, "Two weeks after a prominent lawyer was killed in a Washington townhouse, D.C. police are still searching the home for clues, and they believe crime scene evidence was cleaned, according to court documents."
Posted at 05:55 PM by Howard Bashman


"Don't Ask, Don't Tell Follies: Military recruiters are cutting corners to meet goals; So why do the services keep kicking out gay men and lesbians?" This editorial appears today in The Washington Post.
Posted at 05:49 PM by Howard Bashman


"A Gotti Approaches the Bench": The New York Times today contains an article that begins, "It is safe to assume that, after 39 years on the federal bench, Judge Jack B. Weinstein has had his share of fan mail. Jurists may not receive as many letters as, say, movie stars or rock ’n’ rollers, but it would be unlikely for a legal giant who has issued rulings on everything from Agent Orange to asbestos not to have received at least a couple of mash notes."
Posted at 05:25 PM by Howard Bashman


"Bad idea: Flipping off the judge; Offender jailed, required to apologize for obscenities." This article appears today in The Times of Munster, Indiana.
Posted at 05:18 PM by Howard Bashman


"This appeal calls upon us to decide whether a district court's sentence can be upheld as reasonable when it is based solely on the district court's policy disagreement with how the United States Sentencing Guidelines treat crack cocaine offenses as compared to powder cocaine offenses, notwithstanding Congress's repeated rejection of proposals to alter that treatment." In a lengthy opinion issued today, a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit answers "no."
Posted at 04:55 PM by Howard Bashman


"Husband Takes Schiavo Fight Back to Politicians": This article appears today in The New York Times.
Posted at 04:50 PM by Howard Bashman


Hey Chad, how's it hangin'? The Associated Press provides a report headlined "Justices order more evidence gathering in city council stalemate" that begins, "A court erred when declaring a winner in a city council election that was so close that a coin toss and two recounts did not resolve who won, the Ohio Supreme Court ruled Wednesday. Rick Bain, a council candidate in the Cleveland suburb of Pepper Pike, should have been allowed to present evidence he says shows that a punch-card ballot with a hanging chad would break a tie in his favor, the Supreme Court said."

You can access today's ruling of the Supreme Court of Ohio at this link.
Posted at 04:45 PM by Howard Bashman



"Non-US citizens cannot claim bias outside US-court": Reuters provides this report. My earlier coverage is here.
Posted at 04:40 PM by Howard Bashman


"Young Lawyers Flock To Chertoff & Rumsfeld": Anna Schneider-Mayerson has this article in the August 21, 2006 issue of The New York Observer.
Posted at 04:18 PM by Howard Bashman


Savages who blog: Luiza Ch. Savage has a blog, which you can access at this link via Macleans.ca. Now if only her husband Charlie of The Boston Globe also had a blog, or even David G. (possibly "no relation") of the LA Times.
Posted at 03:40 PM by Howard Bashman


"The question presented in this appeal is whether Delaware's Freedom of Information Act violates the Privileges and Immunities Clause of the United States Constitution by restricting noncitizens' rights to access, inspect, and copy public documents." Today, a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit issued a decision agreeing with a Delaware-based federal district court in answering that question in the affirmative. Today's ruling thus affirms the district court's injunction prohibiting Delaware from limiting FOIA benefits to Delaware citizens.

In early press coverage, The Delaware News Journal provides an update headlined "Federal court orders Delaware to open public records to nonresidents."
Posted at 03:05 PM by Howard Bashman



Eleventh Circuit affirms the dismissal of lawsuit seeking damages for injuries caused by INS agents' use of force during the execution of the warrants authorizing the removal of Elian Gonzalez from his great-uncle's home in Miami on April 22, 2000: You can access today's ruling at this link.
Posted at 03:02 PM by Howard Bashman


"The question before us, as framed by the parties, is whether a reasonable jury reviewing the three photographs could have concluded that they met the statutory requirement of 'lascivious exhibition of the genitals or pubic area.'" A three-judge panel of the U.S. Court of Appeals for the First Circuit, in a majority opinion and an opinion concurring in the judgment issued today, spends 39 pages discussing that issue in an appeal by the federal government from "a pre-trial order by a district court excluding from jury consideration three photographs, which the government has charged are child pornography."
Posted at 02:55 PM by Howard Bashman


"Court Nixes Mich. School Sports Schedule": The Associated Press provides this report.

And The Detroit News provides an update headlined "State high school body vows to appeal circuit court ruling."

My earlier coverage appears at this link.
Posted at 02:40 PM by Howard Bashman



"The Outsourcing of American Law: Who needs federal judges when you have Canadians?" Ariel N. Lavinbuk has this jurisprudence essay online at Slate.
Posted at 10:20 AM by Howard Bashman


Three-judge Sixth Circuit panel rejects Thomas M. Cooley Law School's claim that the American Bar Association denied Cooley due process in failing to accredit Cooley's two proposed satellite campuses and in imposing sanctions on Cooley for operating the satellites without prior ABA acquiescence: You can access today's ruling at this link.
Posted at 10:00 AM by Howard Bashman


"This case presents the question of whether a change in a rule governing the adjudication of social security disability benefits claims that is applied as of its effective date to all pending cases has an impermissibly retroactive effect." So begins the opinion issued today announcing the judgment of an en banc U.S. Court of Appeals for the Sixth Circuit. By a vote of 7-1-1-5, the court today has ruled that "The change in the rule is * * * not impermissibly retroactive."

Circuit Judge Ronald Lee Gilman's opinion concurring in the judgment begins, "'Any test of retroactivity,' the Supreme Court has acknowledged, 'will leave room for disagreement in hard cases.' Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994). As the four opinions produced today demonstrate, this is such a case."
Posted at 09:55 AM by Howard Bashman



On remand from the U.S. Supreme Court, the U.S. Court of Appeals for the Sixth Circuit again holds that the Michigan High School Athletic Association's scheduling of sports seasons discriminates against female athletes on the basis of gender: You can access today's three-judge panel ruling at this link. Maureen E. Mahoney argued the case in the Sixth Circuit on behalf of the MHSAA.
Posted at 09:48 AM by Howard Bashman


"Commandments set for Idaho vote": The Washington Times today contains an article that begins, "The Idaho Supreme Court has authorized the nation's first ballot initiative to let voters decide whether a Boise public park should be allowed to have a Ten Commandments monument, like the one removed two years ago."

My earlier coverage appears at this link.
Posted at 08:50 AM by Howard Bashman



In re Led Zeppelin song lyrics litigation: There are at least two Led Zeppelin songs whose lyrics discuss falling out of bed in response to citrus fruit squeezing, "Travelling Riverside Blues" and "The Lemon Song."

Today, The Newark (N.J.) Star-Ledger contains an article headlined "Suit over loft bed falls short; Appeals court says no damages for lack of warning label" that begins, "Coffee is served in cups that warn: 'Caution: This beverage is extremely hot.' Ladders carry warnings about falls. Lawn tractors are emblazoned with stick figures depicting the risk of amputation. Is there any hazard so obvious it does not require a warning label? Yes, a state appeals court said yesterday. It ruled the risk of falling from a loft bed is obvious, at least when that bed is used by a college student. It overturned a $179,001 award to a college senior who blamed his fall from a loft bed on the lack of a warning label."

You can access yesterday's ruling of the Superior Court of New Jersey, Appellate Division, at this link.
Posted at 08:38 AM by Howard Bashman



"Judge in ‘Mafia Cops' Trial Received Angry Letters After Decision": This article appears today in The New York Sun.
Posted at 07:30 AM by Howard Bashman


"Judge rules Chronicle reporters must name their BALCO sources": Bob Egelko has this article today in The San Francisco Chronicle.

And The Los Angeles Times reports today that "Chronicle Reporters Ordered to Reveal Sources in Bonds Case; A federal judge rules the writers must identify those who leaked secret grand jury testimony in the BALCO steroid probe."

My earlier coverage is at this link.
Posted at 06:55 AM by Howard Bashman



"Court: Bible display must go; Ruling finds Harris County monument's initial purpose was changed." The Houston Chronicle today contains an article that begins, "A Bible must be removed from a 50-year-old monument in front of the Harris County civil courthouse because a district judge changed it from a secular to a religious use in violation of the Constitution, a federal appeals court ruled Tuesday."

And The Associated Press reports that "Appeals court upholds order to remove Bible from courthouse."

My earlier coverage appears at this link. In addition, my "20 questions for the appellate judge" interview with the dissenting judge can be accessed here, while a glimpse of the judge who wrote the majority opinion can be viewed via the blogs of several of his recent law clerks (see here, here, and here).
Posted at 06:50 AM by Howard Bashman



Tuesday, August 15, 2006

"Boise to put Ten Commandments to vote; City staff is working to get initiative on Nov. 7 ballot so voters can decide whether to have monument in park": Today's edition of The Idaho Statesman contains an article that begins, "The city of Boise is working to let voters decide Nov. 7 on whether Julia Davis Park should again be the site of a monument to the Ten Commandments. The Idaho Supreme Court ruled Monday that the city of Boise was wrong to deny a 2004 petition to ask voters whether they want a Ten Commandments monument at the park. The court overturned a district court decision that had sided with the city in not allowing the petition."

You can access yesterday's ruling of the Supreme Court of Idaho at this link, while a summary of the ruling that the court prepared for the convenience of the media is here.
Posted at 10:44 PM by Howard Bashman



"Unusual Cert Petition Deals With Certified Queries, Theories and 'Erie'": law.com's Shannon P. Duffy provides this report.

Update: Lyle Denniston of "SCOTUSblog" emails to note that the case has been docketed in the U.S. Supreme Court at No. 06-186.
Posted at 10:30 PM by Howard Bashman



"Ruling lets lawyers move on effort to clear Lay": The Houston Chronicle provides this news update.
Posted at 10:23 PM by Howard Bashman


"Reporters Must Testify Over Bonds Leak": David Kravets of The Associated Press provides this report.
Posted at 10:18 PM by Howard Bashman


"Judge: Chronicle reporters must testify." Bob Egelko of The San Francisco Chronicle provides a news update that begins, "A federal judge ruled today that two Chronicle reporters must disclose their sources of grand jury testimony by Barry Bonds and other prominent athletes about steroid use."

You can access today's ruling of the U.S. District Court for the Northern District of California at this link.
Posted at 09:15 PM by Howard Bashman



"This appeal raises questions about the constitutionality of a monument, dedicated to a local citizen, located on the grounds of the Harris County Civil Courthouse. The rub is that the monument contains an open Bible." So begins an opinion that a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued today. At issue in the case is a monument to William S. Mosher, "a prominent Houston businessman and philanthropist who had been a long-time, active supporter of Star of Hope before his death in 1948."

The majority opinion contains the following description of the monument: "The top part of the monument is a glass-topped display case that is sloped towards the Courthouse entrance. Star of Hope placed an open Bible in the glass display case to memorialize Mosher's Christian faith, although the monument contains no written explanation for the presence of the Bible. The sloping top of the monument has the appearance of a lectern. The display case does not contain any other items." You can view an image of the monument by clicking here.

Today's majority opinion affirms a federal district court's ruling that ordered removal of the Bible from the monument. The majority opinion's final paragraph begins: "Because the objective observer would conclude that the current purpose of the monument has evolved into, and presently constitutes, a religious symbol, the Mosher monument containing a Bible violates the Establishment Clause." Circuit Judge E. Grady Jolly wrote the majority opinion, in which Circuit Judge Patrick E. Higginbotham joined.

Circuit Judge Jerry E. Smith dissented in an opinion that begins, "The panel majority exhibits an appalling hostility to any hint of religion in public spaces. Moreover, it does so by means of a misguided attempt to apply the Supreme Court's recent opinions in McCreary and Van Orden."

This case has already received extensive press coverage. The San Antonio Express-News has published articles headlined "Battle of the Bible gets ugly" and "Judges weighing Houston display."

The Associated Press has provided reports headlined "Texas woman wants Bible out of courthouse monument" and "Remove Bible from courthouse display, judge says."

And Click2Houston.com has provided reports headlined "3-Judge Panel: Bible Stays Put Despite Ruling; Stay Remains In Effect Until All Appeals Are Exhausted"; "Clergy Support County's Plan To Appeal Bible Ruling; Judge Rules Monument On County Property Unconstitutional"; "Bible Display Supporters To Appeal Judge's Ruling; Monument Honors Mosher For Contributions To Homeless Programs": "Judge: Courthouse Bible Display Unconstitutional"; "Bible Supporters Gather For Lunch-Hour Protest; People Assemble Outside Civil Courthouse Near Monument"; and "Lawsuit Wants Bible Removed From Monument; Judge Says Bible In Monument Is Tribute To Devoutly Religious Industrialist."
Posted at 08:35 PM by Howard Bashman



"Topless Bar Topples Lewdness Law": Shannon P. Duffy of The Legal Intelligencer provides this news update (free access). My earlier coverage is here.
Posted at 05:04 PM by Howard Bashman


"None of our sister circuits has addressed in a published decision whether 42 U.S.C. §1981 applies extraterritorially, but those district courts that have considered the question have unanimously agreed that the statute does not apply outside the United States." And today a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit joins with those other courts in holding that Section 1981, which prohibits racial discrimination in the making and enforcement of private contracts, does not apply extraterritorially. You can access today's ruling at this link.
Posted at 04:58 PM by Howard Bashman


"Jurisprudence: Teen Terror Charges." This audio segment (RealPlayer required) featuring Dahlia Lithwick appeared on today's broadcast of NPR's "Day to Day."
Posted at 03:18 PM by Howard Bashman


When it comes to adult entertainment, semi-nude doesn't necessarily equal lewd: A unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit today issued an opinion declaring facially invalid a Pennsylvania Liquor Code statute and regulation that prohibit "lewd" entertainment at any licensed establishment. Today's decision explains, "We conclude that the statute and regulation are facially invalid because they are substantially overbroad, punishing a significant amount of protected speech in relation to their legitimate scope."

Today's ruling is the second nude dancing / lewd dancing opinion that Circuit Judge Julio M. Fuentes has issued in the past month. Last month's opinion rejected a constitutional challenge to a New Jersey regulation prohibiting "any lewdness or immoral activity" on liquor-licensed premises. My coverage of that ruling appeared here.
Posted at 03:00 PM by Howard Bashman



"4 years and 3500 entries ago": Kevin Heller's "Tech Law Advisor" blog came into existence four years ago today.
Posted at 11:33 AM by Howard Bashman


"Blumenthal Says Judicial Review Council Documents Are Public": The Associated Press provides a report that begins, "Investigative records such as those used to charge former state Chief Justice William Sullivan with violating state law and the judicial code of conduct should be made public, Connecticut's attorney general said Tuesday."
Posted at 11:28 AM by Howard Bashman


"The majority opinion in this case represents the latest step in an ongoing push within this Circuit to subvert United States v. Booker, 543 U.S. 220 (2005), and to make the sentencing Guidelines de facto mandatory." So begins Circuit Judge Eric L. Clay's opinion dissenting from today's ruling of the majority on a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit.
Posted at 09:50 AM by Howard Bashman


The New York Times is reporting: In today's newspaper, Neil A. Lewis has an article headlined "5 Men Leave Guantanamo for a Bleak, Uncertain Future."

And the newspaper also contains articles headlined "In Wake of Plot, Justice Dept. Will Study Britain’s Terror Laws"; "Military’s Discharges for Being Gay Rose in ’05"; and "U.S. Wants Ex-Enron Chief to Pay Lay’s Share, Too."
Posted at 07:28 AM by Howard Bashman



"Texas senators' roles defy junior, senior ranks; Hutchison takes the lead on state projects, while Cornyn's focus is on national policy": The Houston Chronicle contains this article today.
Posted at 07:25 AM by Howard Bashman


"Superman tops Supremes": This article appears today in The Washington Times.
Posted at 07:23 AM by Howard Bashman


"Espionage Lite: Talking about secrets becomes a crime." The Washington Post contains this editorial today.
Posted at 07:10 AM by Howard Bashman


"Bush Signs Law to Save War Memorial Cross": This article appears today in The New York Times.

The San Diego Union-Tribune reports today that "Feds now control Mount Soledad cross site; Bush signs bill; biggest foe expects court ruling soon."

The Los Angeles Times reports that "President Signs Bill to Save San Diego Cross; The legislation labels the icon on public land a federal war memorial, an effort to make it harder for foes to force its removal."

And The Washington Times reports that "Bush saves cross by eminent domain."
Posted at 07:04 AM by Howard Bashman



"Has Bush v. Gore Become the Case That Must Not Be Named?" Adam Cohen has this Editorial Observer essay today in The New York Times.
Posted at 07:02 AM by Howard Bashman


"Help Wanted: Qualified Judges; The Bush administration should withdraw the latest judicial nominee and four others that are in limbo." This editorial appears today in The New York Times.
Posted at 07:00 AM by Howard Bashman


"The Suit Challenging the NSA's Warrantless Wiretapping Can Proceed, Despite the State Secrets Privilege: Why The Judge Made the Right Call." Julie Hilden has this essay today online at FindLaw.
Posted at 06:50 AM by Howard Bashman


Monday, August 14, 2006

"We Need Our Own MI5": Seventh Circuit Judge Richard A. Posner will have this op-ed Tuesday in The Washington Post.
Posted at 11:04 PM by Howard Bashman


"Colorado Redistricting Lawsuit Dismissed": The Associated Press provides a report that begins, "A panel of federal judges has delivered a blow to Colorado Republicans and dismissed the last lawsuit filed over congressional boundaries imposed by a state court."

You can access the ruling of a three-judge court of the U.S. District Court for the District of Colorado by clicking here.
Posted at 10:58 PM by Howard Bashman



"Kennedy & the Rule of Law: U.S. Supreme Court Justice Anthony Kennedy addresses the American Bar Association's Annual Meeting in Honolulu." You can access this past Saturday's broadcast of C-SPAN's "America & the Courts" program by clicking here.
Posted at 10:50 PM by Howard Bashman


"Man Admits Threatening to Murder Federal Judge": law.com provides this report.
Posted at 10:45 PM by Howard Bashman


"Snow White's dwarfs more famous than US judges: poll." Reuters provides this report.
Posted at 10:40 PM by Howard Bashman


"Wone Murder Remains a Mystery": This post appears today at "DCist."
Posted at 08:15 PM by Howard Bashman


"Judicial Activism and the Rehnquist Court": Law Professor Lori A. Ringhand has posted this article (abstract with link for download) at SSRN (via "Legal Theory Blog").
Posted at 08:05 PM by Howard Bashman


Available online from the Supreme Court of the United States: The Court today issued a press release titled "Jeffrey P. Minear named new Administrative Assistant to the Chief Justice."

And the Court today also posted online its November 2006 oral argument calendar. My summary of the cases on the October calendar can be accessed here, while my summary of the cases on the November calendar will be forthcoming in due course.
Posted at 08:00 PM by Howard Bashman



"Bush signs bill transferring Mount Soledad cross to federal control": The San Diego Union-Tribune provides this news update.

And The Associated Press reports that "U.S. Govt Gets Giant Cross in San Diego."

You can view the text of the legislation by clicking here.
Posted at 07:48 PM by Howard Bashman



"Former Colleague in Solicitor General's Office Becomes Chief Justice's Administrative Assistant": law.com's Tony Mauro provides this news update.
Posted at 05:20 PM by Howard Bashman


"Roberts Taps Justice Vet to Be Top Aide": The Associated Press provides this report.

And at "SCOTUSblog," Lyle Denniston has a post titled "New aide to the Chief."
Posted at 04:02 PM by Howard Bashman



"Newsmaker: A blogger's battle from behind bars." Last Friday, c|net News.com published an interview with jailed video blogger Josh Wolf.
Posted at 03:57 PM by Howard Bashman


"Criminal, Immunize Thyself: The Bush administration's get out of jail card for torturers." John Sifton has this jurisprudence essay online at Slate.
Posted at 03:20 PM by Howard Bashman


Ruling on an issue that has produced a circuit split, the U.S. Court of Appeals for the Seventh Circuit holds that the probate exception to federal subject matter jurisdiction applies not just in diversity cases but in federal question cases too: Circuit Judge Richard A. Posner issued this opinion today on behalf of a unanimous three-judge panel.
Posted at 03:18 PM by Howard Bashman


On rehearing, the majority on a divided three-judge Fourth Circuit panel again holds that 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: Today's decision can be accessed at this link. Footnote one of today's dissenting opinion describes the grant of rehearing and the changes to the majority opinion that resulted. My coverage of the panel's original ruling, which issued on May 12, 2006, can be accessed here.
Posted at 03:05 PM by Howard Bashman


"Courts & The Law: Restraint vs. Rationality." Columnist Kenneth Jost has this essay in today's issue of CQ Weekly. Therein, he looks at the two recent same-sex marriage rulings from the States of New York and Washington.
Posted at 02:28 PM by Howard Bashman


"Cross backers cross signals": Dana Wilkie has this essay today in The San Diego Union-Tribune.

And The Voice of San Diego has posted online an article headlined "Judge: Bush Can Sign Cross Bill, But Will Revisit Issue."
Posted at 10:50 AM by Howard Bashman



"[E]ven the most animated application of the parsimony requirement--that the district court impose 'a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in' § 3553(a)(2)--cannot justify a one-day sentence in this case." The majority on a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit today issued an opinion that begins, "After a jury convicted William Davis of two counts of bank fraud, the district court calculated a guidelines sentencing range of 30 to 37 months. After considering the § 3553(a) factors, the court imposed a sentence of one day in prison because Davis was 70 years old at the time of sentencing and because he had committed the underlying crimes 14 years earlier. Unable to conclude that this variance is reasonable, we reverse." Circuit Judge Jeffrey S. Sutton wrote the majority opinion, in which Chief Judge Danny J. Boggs joined.

Senior Circuit Judge Damon J. Keith issued a dissenting opinion that begins, "I am saddened and distressed by the majority’s opinion, which totally disregards the district court’s authority to impose a fair and reasonable sentence that is 'sufficient but not greater than necessary' to effectuate the purposes of sentencing. Reversing the district court’s sentence is a complete miscarriage of justice."
Posted at 10:11 AM by Howard Bashman



"A Look Ahead to First Oral Arguments of New Supreme Court Term": That's the headline of the brand new installment of my "On Appeal" column for law.com.
Posted at 07:25 AM by Howard Bashman


"Activists Protest Military Ban on Gays": The Associated Press provides this report.
Posted at 07:20 AM by Howard Bashman


On the editorial page of today's issue of The New York Times: The newspaper contains editorials entitled "Rewriting the Geneva Conventions" and "Shoot First -- No Questions Asked."
Posted at 07:05 AM by Howard Bashman


"Republicans Weigh Push For Tougher Terror Laws; Expansion of Surveillance A Key Part of New Strategy; Chertoff Is Leading Charge": This article (free access) appears today in The Wall Street Journal.

And The Boston Globe reports today that "Chertoff wants US to review antiterror laws; More arrest powers eyed."
Posted at 07:00 AM by Howard Bashman



The New York Sun is reporting: In today's newspaper, Josh Gerstein reports that "Judge Rules For Pro-Israel Lobbyists."

And in other news, "Government Lawyers Warn of Constitutional Showdown Over Plan B."
Posted at 06:55 AM by Howard Bashman



"Blawg Review #70": Available online here at the blog "Preaching to Perverted."
Posted at 06:54 AM by Howard Bashman


Sunday, August 13, 2006

"Defeat of Bush’s judicial nominee traced to S.C.’s Graham": The State newspaper of Columbia, South Carolina today contains an article that begins, "If the defeat of a high-profile judicial nominee were probed like a homicide investigation, U.S. Sen. Lindsey Graham’s fingerprints would be on the gun. After Congress adjourned for its summer recess last week, the Senate quietly returned to the White House the nomination of William J. 'Jim' Haynes to the 4th U.S. Circuit Court of Appeals."
Posted at 10:33 PM by Howard Bashman


"Murals in federal building spark debate over censorship": The McClatchy Newspapers provide this report. The controversial murals are located in the building that houses the headquarters for the Environmental Protection Agency, and they can be viewed via this link.
Posted at 10:25 PM by Howard Bashman


"Is conspiracy a war crime? The White House urges Congress to say yes, because it makes terror convictions easier; The high court is split." Warren Richey will have this article Monday in The Christian Science Monitor.
Posted at 10:22 PM by Howard Bashman


"NYC Subway Searches": At the "Concurring Opinions" blog, Daniel J. Solove has a post that begins, "The U.S. Court of Appeals for the 2nd Circuit recently upheld New York City's program of random searches at subways."
Posted at 07:52 PM by Howard Bashman


"In search of judicial diversity; California's growing minority population has yet to be reflected on the court bench": The Sacramento Bee contains this article today.
Posted at 07:50 PM by Howard Bashman


"Childproof: Why is a segregated community O.K. when kids are the ones excluded?" This article appears today in The New York Times Magazine.
Posted at 07:35 PM by Howard Bashman


Cincinnati Reds 7, Philadelphia Phillies 5 (11 innings): My son and I today attended an exciting game at which the Phillies rallied to score two runs in the bottom of the ninth inning to send the game into extra frames, but the Reds proved victorious in the eleventh inning. Ryan Howard hit both his league-leading 41st home run of the season and a single with two outs to tie the game in the bottom of the ninth.

I'll be in Cincinnati in a little under one month from now to present an oral argument before the U.S. Court of Appeals for the Sixth Circuit, and it will be interesting to see whether either the Phillies or the Reds will then still be in contention for the Wild Card playoff berth. You can access the box score from today's game at this link, while wraps are here and here.
Posted at 07:28 PM by Howard Bashman



"Search Me? Google Wants to Digitize Every Book; Publishers Say Read the Fine Print First." The Washington Post contains this article today.
Posted at 08:27 AM by Howard Bashman


"Filing targets Skilling gains; Prosecutors say ex-CEO of Enron liable for Lay's proceeds as well": This article appeared yesterday in The Houston Chronicle.

And The Associated Press reports that "Feds Want Skilling to Pay Nearly $183M."
Posted at 08:15 AM by Howard Bashman



Saturday, August 12, 2006

"Let Them Play: Three cheers for fantasy baseball beating the big leaguers at their own game." The Los Angeles Times contains this editorial today.
Posted at 10:48 PM by Howard Bashman


"A Spa Day That Was Anything but Relaxing; Reinstated Suit Alleges Racial Bias in Va.": This article appears today in The Washington Post.

My earlier coverage appears at this link.
Posted at 10:40 PM by Howard Bashman



"Seminar Program Keeps Judges in Dark on Donors; Some See Ethical Issue With Jurists Unaware Of Corporate Litigants' Hand in Free Courses": Lawrence Hurley will have this article Monday in The Daily Journal of California.
Posted at 03:02 PM by Howard Bashman


"Teen Terror: Are teenagers like fundamentalist terrorists?" Dahlia Lithwick has this jurisprudence essay online at Slate.
Posted at 01:00 PM by Howard Bashman


"Who will be most sorry about Demaree?" At the "Sentencing Law and Policy" blog, Doug Berman has a post that begins, "Though seemingly involving a technical ex post facto issue, the Seventh Circuit's ruling in Demaree could (and will?) have a profound impact on post-Booker sentencing."
Posted at 10:45 AM by Howard Bashman


"Personal Items of Unabomber Will Be Sold": This article appears today in The New York Times.

The Sacramento Bee reported yesterday that "Unabomber possessions ordered sold; Auction proceeds will go to victims, judge says."

And The Associated Press reports that "Judge: Unabomber Items to Be Sold Online."

You can access Thursday's order of the U.S. District Court for the Eastern District of California at this link via "The Smoking Gun" web site. Additionally, that order and a related opinion also issued Thursday are available online here and here, respectively, from the court's web site.
Posted at 10:38 AM by Howard Bashman



"Illinois Ordered to Pay in Game Ban Case": The Associated Press provides a report that begins, "The federal judge who ruled that Illinois unconstitutionally banned the sale of violent or sexual video games to minors has another message for the state: Pay up. U.S. District Judge Matthew Kennelly this week ordered the state to pay more than $510,000 in legal fees to three business groups that sued over the Safe Games Illinois Act."
Posted at 08:37 AM by Howard Bashman


"'None of the Above' won't appear on ballot; Man who changed middle name to moniker to fight": The Tennessean today contains an article that begins, "A Franklin man who legally changed his middle name to 'None of the Above' will have his new moniker omitted when his name appears on the ballot for Tennessee governor and U.S. Senate in November, a judge ruled Friday."

And The Associated Press reports that "Court Nixes Man's Middle Name for Ballot."

You can view the candidate's web site by clicking here.
Posted at 08:35 AM by Howard Bashman



"Appeals Court Upholds Random Police Searches of Passengers’ Bags on Subways": This article appears today in The New York Times.

The New York Daily News reports today that "Judges OK subway searches."

Newsday reports that "Random bag searches upheld."

And Bloomberg News reports that "U.S. Appeals Court Upholds New York Subway Searches."

You can access my earlier coverage at this link.
Posted at 08:25 AM by Howard Bashman



Friday, August 11, 2006

Available online from law.com: An article is headlined "'Super Lawyers' Still Soar in Georgia; While New Jersey restricts 'Super' lawyer ads, Georgia rule is not so strict."

And the brand new installment of my "On Appeal" column is headlined "A Look Ahead to First Oral Arguments of New Supreme Court Term."
Posted at 11:33 PM by Howard Bashman



Bob Egelko is reporting: Today in The San Francisco Chronicle, he has articles headlined "Surveillance lawsuits transferred to judge skeptical of Bush plan" and "Wastewater in pond ruled illegal."
Posted at 11:25 PM by Howard Bashman


"Indians Once Again Challenge Redskins Name; Ruling Sought on Whether Term Is Disparaging Enough for Team to Lose Trademark": This article will appear Saturday in The Washington Post.
Posted at 11:18 PM by Howard Bashman


"Court Tosses Suit Against James Brown": The Associated Press provides this report. My earlier coverage appears here.
Posted at 09:25 PM by Howard Bashman


"Original Intent and the Copyright Clause: Eldred v. Ashcroft Gets it Right." Law Professor Craig W. Dallon has this article (abstract with links for download) online at SSRN (via "Legal Theory Blog").
Posted at 04:45 PM by Howard Bashman


"Evidence Tampered With in Wone Murder Case, Police Say; Police Comb Law Firm for Clues in Murder": Legal Times provides this news update (free access).

In earlier coverage, The Washington Post has published articles headlined "Lawyer Killed In Stabbing At Rowhouse In Northwest" and "Killer Targeted Lawyer, Police Say; Assailant Used Butcher Knife in Rowhouse Near Dupont Circle."
Posted at 04:32 PM by Howard Bashman



"Constitutional limits on federal power found in the Commerce Clause lead the Eleventh Circuit to overturn another child pornography conviction": That was the title of this "How Appealing" post from March 18, 2005 reporting on a decision the U.S. Court of Appeals for the Eleventh Circuit issued that day.

Between then and now, the Supreme Court of the United States vacated the Eleventh Circuit's judgment in that case and remanded the case for reconsideration in light of the Supreme Court's ruling in Gonzalez v. Raich.

Based on Raich, today the same three-judge Eleventh Circuit reverses course and rejects the defendant's challenges to his convictions for producing and possessing child pornography. You can access today's ruling at this link.
Posted at 03:10 PM by Howard Bashman



U.S. District Court for the District of Columbia rejects lawsuit alleging that the Deficit Reduction Act of 2005 failed to become law because it was not, in fact, passed by the House and Senate in the same form, as mandated by the bicameral requirement of Article I, Sections 1 and 7 of the United States Constitution: You can access today's ruling at this link, while the district court's order dismissing the case is here. The basis for today's ruling was the "enrolled bill" rule of Marshall Field & Co. v. Clark, 143 U.S. 649, 672 (1892).
Posted at 02:55 PM by Howard Bashman


"You [and each of you] do swear by Almighty God, the Searcher of all hearts, that the evidence you shall give this court [and Jury] in this issue now being tried shall be the truth, the whole truth, and nothing but the truth and as you shall answer to God on the last great day." That is the traditional oath some Pennsylvania state trial courts require witnesses to take before offering testimony. More information about that oath can be found in an article headlined "Truthfully, our court oath is elaborate" published yesterday in The Pittsburgh Post-Gazette (via "Religion Clause").
Posted at 02:45 PM by Howard Bashman


Three-judge Ninth Circuit panel affirms Circuit Judge Alex Kozinski's ruling, while he was sitting by designation on the U.S. District Court for the Central District of California, that rejected a criminal defendant's challenge to the validity of a warrant to search a computer and storage media for evidence that the defendant possessed pornographic images of children: You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 02:35 PM by Howard Bashman


"Au-Tomotive Gold, Inc. argues that, as used on its key chains and license plate covers, the logos and marks of Volkswagen and Audi are aesthetic functional elements of the product--that is, they are 'the actual benefit that the consumer wishes to purchase'--and are thus unprotected by the trademark laws." Incredibly, an Arizona-based federal district judge agreed with this argument, but today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reverses in an opinion that you can access here.

Today's opinion explains: "Accepting Auto Gold's position would be the death knell for trademark protection. It would mean that simply because a consumer likes a trademark, or finds it aesthetically pleasing, a competitor could adopt and use the mark on its own products."
Posted at 02:25 PM by Howard Bashman



"Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker": The "Sentencing Law and Policy" blog provides this post about an interesting opinion that Circuit Judge Richard A. Posner issued today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit.
Posted at 02:22 PM by Howard Bashman


"Court Upholds NYC Subway Searches": The Associated Press provides a report that begins, "A federal appeals court Friday upheld the constitutionality of the city's random police inspections of subway riders' bags."

You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 02:15 PM by Howard Bashman



"Judge: Fletcher can't be prosecuted while in office." The Louisville Courier-Journal provides a news update that begins, "Gov. Ernie Fletcher cannot be prosecuted on political patronage charges until he is either impeached or out of office, a judge ruled Friday."

The Lexington Herald-Leader provides a news update headlined "Judge blocks prosecution of Fletcher."

And The Associated Press reports that "Judge Rules Ky. Gov. Can't Be Prosecuted."
Posted at 11:54 AM by Howard Bashman



"Unmarried couple sue Black Jack over occupancy permit denial": The St. Louis Post-Dispatch today contains an article that begins, "An unmarried couple and their three children, who were denied an occupancy permit in Black Jack because they failed to meet the city's definition of family, are taking their fight to court."

And The Associated Press reports that "Unmarried Couple Sues for Housing Permit."

A copy of the petition initiating suit in a Missouri state court can be accessed here.
Posted at 11:50 AM by Howard Bashman



"Same-sex marriage ban stays on ballot; Judge rules proposed amendment doesn't violate 'single-subject rule'": The Arizona Republic contains this article today.
Posted at 10:05 AM by Howard Bashman


"IBM Wins Case Involving Pension Change": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition." My earlier coverage appears here and here.
Posted at 09:02 AM by Howard Bashman


"5 judges turn down case of Dormont man": This front page article, in which I am quoted, appears today in The Pittsburgh Tribune-Review.
Posted at 08:48 AM by Howard Bashman


Available online from law.com: An article reports that "2nd Circuit Revives Claims Over Bank Funds Stolen in Lawyer's Ponzi Scheme."

And in other news, "Teen Sues Mother for ID of Father; Child wants history of family illness; fear of 'opening the floodgates.'"
Posted at 08:45 AM by Howard Bashman



"Lobbyists to Stand Trial in Spy Case; A judge rejects the arguments of pro-Israel activists charged under a 1917 espionage law with conspiring to obtain U.S. secrets": This article appears today in The Los Angeles Times.

Today in The New York Times, Neil A. Lewis reports that "Lobbyists Lose Bid to Dismiss Secrets Case."

And in The New York Sun, Josh Gerstein reports that "Aipac Judge Throws Out First Amendment Claim."

You can access Wednesday's ruling of the U.S. District Court for the Eastern District of Virginia at this link.
Posted at 07:25 AM by Howard Bashman



"Advocates vow fight as Cuban Five lose ruling; Advocates for the Cuban Five criticized a court's ruling that the defendants received a fair trial in Miami and vowed to fight, while federal prosecutors praised the judge in the case": The Miami Herald contains this article today.

And The Chicago Tribune reports today that "Cuba angry over ruling by U.S. court in spy case."

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



"A Trial Lawyer by Any Other Name: The Assn. of Trial Lawyers Consults Orwell on Re-branding." This editorial appears today in The Los Angeles Times.
Posted at 07:15 AM by Howard Bashman


"Flier Distribution Policy Is Ruled Unconstitutional": The Washington Post today contains an article that begins, "A federal appeals court ruled yesterday that the Montgomery County public schools' policy for distributing fliers by community groups is unconstitutional because it gives school officials unlimited power to approve or reject materials."

My earlier coverage appears at this link.
Posted at 07:10 AM by Howard Bashman



"Labor Agreement Is a First for Immigration Judges": The Washington Post today contains an article that begins, "After seven years of negotiations, the Justice Department and a union representing 218 immigration judges signed their first collective-bargaining agreement yesterday."
Posted at 07:08 AM by Howard Bashman


"A Wall Street Rush to Patent Profit-Making Methods": This article appears today in The New York Times.
Posted at 07:03 AM by Howard Bashman


Thursday, August 10, 2006

"ABAndoning the Constitution: Judging the president and justices on executive power." Craig S. Lerner and Nelson Lund have this essay today at National Review Online.
Posted at 10:08 PM by Howard Bashman


"Neither Peppers nor Ward and Weiden consider this phenomenon and its implications as fully as they might, but both books cite a significant scholarly study published in 2001 whose important findings have been overlooked almost entirely by legal academics." That quote -- from David J. Garrow's review of the books "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 -- refers to the phenomenon of "the increasingly predominant ideological loyalties that clerks bring with them to the high court from their previous clerkships."

The "significant scholarly study published in 2001" to which Garrow refers is available online; it is a paper titled "Selection of Law Clerks and Polarization in the U.S. Supreme Court" by Corey Ditslear and Lawrence Baum.
Posted at 09:05 PM by Howard Bashman



"Judges consolidates telecom spy lawsuits": The Associated Press reports here that "The Judicial Panel on Multidistrict Litigation transferred the cases to U.S. District Judge Vaughn Walker, who last month declined to dismiss one of the lawsuits brought against the federal government and AT&T Inc., according to an order released Thursday."

And Reuters reports that "NSA telecom lawsuits sent to California court."

Yesterday's transfer order of the Judicial Panel on Multidistrict Litigation can be accessed here.
Posted at 06:10 PM by Howard Bashman



Unanimous three-judge First Circuit panel affirms federal district court order freeing Vincent "The Animal" Ferrara from federal prison on writ of habeas corpus: You can access today's ruling at this link.

In earlier coverage, Boston's WCVB-TV reported that "'The Animal' Released From Prison; Ferrara Served 16 Years For Murder." The New York Times had a news brief headlined "Judge Voids Mafia Sentence." And in The Boston Phoenix, Harvey A. Silverglate had an article headlined "'Animal' crackers: US Attorney Michael Sullivan should have fortified his own glass house before casting stones at Tom Finneran."

The federal district court's ruling in the case is available online at this link.
Posted at 05:34 PM by Howard Bashman



"Cuban Officials Criticize U.S. Ruling": The Associated Press provides a report that begins, "Communist officials said Thursday a U.S. appellate court decision denying a new trial for five Cuban agents was proof of Washington's 'hate and vengeance' toward Cuba, and they implied it was tied to Fidel Castro's illness and absence from power." My earlier coverage appears here.
Posted at 05:15 PM by Howard Bashman


"Worst Statute in the World for August 10th": The "Statutory Construction Blog," apparently a brand-new entrant into the ever-expanding Law Professor Blogs Network, offers this interesting post focusing on a federal statute about which I too have previously written.

Meanwhile, we still await the launch of a Law Professor Blogs Network site devoted to the law of sex and pornography.
Posted at 05:05 PM by Howard Bashman



"Acolytes in Arms": In the Summer 2006 issue of The Green Bag, Pulitzer Prize-winning historian David J. Garrow will have this review of the books "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.

Some may recall that in late May 2006, I linked here to Seventh Circuit Judge Richard A. Posner's review of these same two books.
Posted at 04:45 PM by Howard Bashman



"N.J. top court bars testimony from hypnosis in criminal trials": The Associated Press provides a report that begins, "The New Jersey Supreme Court on Thursday barred witness testimony stemming from hypnosis in all criminal trials, except when the so-called refreshed testimony comes from a defendant."

You can access today's ruling of the Supreme Court of New Jersey at this link.
Posted at 04:35 PM by Howard Bashman



"Cuban men's spying verdict upheld": The Miami Herald today contains an article that begins, "A federal appeals court in Atlanta on Wednesday affirmed the convictions of five Cuban men accused of spying for the Castro government. In a 10-2 decision, the 11th U.S. Circuit Court of Appeals concluded that the heavy pretrial publicity and anti-Castro climate in Miami did not prevent the defendants from receiving a fair trial."

Reuters reports that "US court upholds Miami conviction of Cuban spies."

The Associated Press reports that "'Cuban 5' lawyers vow to continue appeals after court defeat."

And from Cuba, Prensa Latina provides a report headlined "Cuba: Atlanta Court Verdict Amazing."

You can access yesterday's en banc ruling of the U.S. Court of Appeals for the Eleventh Circuit at this link.

The original three-judge panel's decision in the case issued one year ago yesterday. My earlier coverage of that ruling can be accessed here and here.
Posted at 03:58 PM by Howard Bashman



Fourth Circuit delivers more good news to Good News Club seeking to send home flyers about the club to parents of children attending Montgomery County, Maryland public elementary schools: You can access today's ruling at this link.
Posted at 03:20 PM by Howard Bashman


Ninth Circuit applies Justice Anthony M. Kennedy's opinion concurring in the judgment as the "law of the land" in Rapanos v. United States to determine whether a pond is subject to the Clean Water Act if the pond contains wetlands adjacent to a navigable river of the United States: You can access today's ruling at this link.
Posted at 03:05 PM by Howard Bashman


Death penalty volunteer complains about the Ninth Circuit's delay in announcing its apparent refusal of the inmate's request to dismiss his appeal, as does a dissenting judge on the three-judge panel: A perfunctory procedural order that a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued today provides the backdrop for sniping between the majority and a dissenting judge with regard to a decision that on the merits of the pending appeal that the panel hasn't even issued yet.
Posted at 03:00 PM by Howard Bashman


"Appellant, Douglas Barry Kent, is a senior foreign service officer seeking to avoid exposure to personal liability for an automobile accident that occurred in Russia while he was driving home from work in his personal vehicle." So begins a unanimous opinion that a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued today.

Today's decision holds that Kent was acting within the scope of employment when he was involved in the automobile accident. In 2002, Vladivostok News provided coverage of this matter in articles headlined "Sleuths find U.S. diplomat in Russian crash case" and "Kashin vs. Kent case starts in America."
Posted at 02:50 PM by Howard Bashman



"An Interview With Jeremy Blachman, Author of 'Anonymous Lawyer'": The New York Inquirer today has posted online this interview.
Posted at 02:40 PM by Howard Bashman


May someone be convicted of the federal offense of being a a felon in possession of a firearm if, at the time of the alleged offense, the sole predicate felony conviction had been the subject of a conditional writ of habeas corpus, to issue if the State failed to retry him, and the State thereafter chooses not to retry him, thereby nullifying the earlier felony conviction? Today a unanimous Sixth Circuit panel answers "yes" in an opinion that you can access here.
Posted at 10:00 AM by Howard Bashman


"Consumer groups cheer 'partial' win; State's top court allows class-action arbitration in loan contract disputes": This article appears today in The Newark (N.J.) Star-Ledger. My earlier coverage is here.
Posted at 09:42 AM by Howard Bashman


"Court reinstates discrimination suit against salon": The Associated Press provides this report. My earlier coverage appears here.
Posted at 09:40 AM by Howard Bashman


1,000,000,000 opposed to abortion ban: The Sioux Falls (S.D.) Argus Leader today contains an article headlined "Billion against abortion ban; Candidate's brother issues rebuttal after conference" that begins, "Democratic gubernatorial candidate Jack Billion on Wednesday called the state's abortion ban a 'rigid, unforgiving law' and denounced Gov. Mike Rounds' signing of the ban."

The candidate's campaign site has posted online a press release entitled "Jack Billion's Statement Opposing the SD Abortion Ban."
Posted at 07:28 AM by Howard Bashman



"Verdict overturned in juvenile search case; Stripping of detained youth didn't violate law, court says": This article appears today in The Sioux Falls (S.D.) Argus Leader. My earlier coverage is here.
Posted at 07:23 AM by Howard Bashman


Lyle Denniston is reporting: Online at "SCOTUSblog," he has posts titled "Detainees: captivity issue should be decided now" and "Response to Skakel appeal sought."
Posted at 07:20 AM by Howard Bashman


"Immigration Judges Facing Performance Reviews": This article appears today in The New York Times.

And The Los Angeles Times reports today that "Immigration Judges Get New Regulations; Atty. Gen. Gonzales plans to hire more jurists and improve their performance after a review of alleged abuses and incompetence."

Yesterday, the U.S. Department of Justice issued a press release entitled "Attorney General Alberto R. Gonzales Outlines Reforms for Immigration Courts and Board of Immigration Appeals."
Posted at 07:20 AM by Howard Bashman



"Hamas-case jury to be named; But public may not get jurors' identities": The Chicago Tribune today contains an article that begins, "A federal judge in Chicago on Wednesday denied prosecutors' request to seat an anonymous jury in the trial of a Bridgeview man charged with funneling money to the Palestinian group Hamas, which the U.S. has labeled a terrorist organization."
Posted at 07:15 AM by Howard Bashman


"Lawyers take step to clear Lay's record": The Houston Chronicle today contains an article that begins, "Attorneys for the late Ken Lay have taken their first step in an effort to wipe out his criminal record."
Posted at 07:05 AM by Howard Bashman


"'Ten Years and Out' : The case for term limits for judges." John Andrews has this op-ed (free access) today in The Wall Street Journal.
Posted at 06:55 AM by Howard Bashman


Wednesday, August 09, 2006

"Employer's right to monitor online activity reaffirmed": Bob Egelko has this article today in The San Francisco Chronicle.

And Reuters reports that "Court rules against man in porn-at-work case."

My earlier coverage appears at this link.
Posted at 11:05 PM by Howard Bashman



"Blogging and the Workplace; Regulating employees' wanderings through the 'blogosphere'": law.com provides this article from The Corporate Counselor.
Posted at 09:38 PM by Howard Bashman


"Software Glitch May Have Erased E-Mail Text in Enron Suits": The American Lawyer provides this report.
Posted at 09:32 PM by Howard Bashman


"Baseball Appealing Fantasy Legal Victory": The Associated Press provides a report that begins, "Major League Baseball says it will appeal a federal court ruling allowing an online fantasy baseball business to use names and statistics without paying for a licensing agreement." My earlier coverage appears here.
Posted at 06:02 PM by Howard Bashman


"Ninth Circuit Mostly Eliminates Private-Sector Workplace Privacy Rights in Computers": At "OrinKerr.com," you can access a post that begins, "This is a very long blog post in response to a troubling new Fourth Amendment decision handed down by the Ninth Circuit yesterday, United States v. Ziegler." And a strikingly similar post appears here at "The Volokh Conspiracy."

My earlier coverage appears at this link.
Posted at 05:55 PM by Howard Bashman



"In this appeal we must determine whether a provision in an arbitration agreement that is part of a consumer contract of adhesion is unconscionable and therefore unenforceable because it forbids class-wide arbitration." The Supreme Court of New Jersey answered that question "yes" today in an opinion you can access here.

In response to the ruling, the organization Trial Lawyers for Public Justice has issued a press release entitled "New Jersey Supreme Court Strikes Down Consumer Class Action Ban as 'Unconscionable and Unenforceable'; TLPJ Wins Nationally-Significant Ruling Against Payday Lender Preserving Consumer Class Actions."
Posted at 05:40 PM by Howard Bashman



"State penalizes judges; 1 ordered courtroom Seahawks cheer": This article appears today in The Seattle Times.
Posted at 05:34 PM by Howard Bashman


"Search for high court candidates hits snag; Panel wants request clarified by governor": The Associated Press provides this report from Tennessee.
Posted at 05:27 PM by Howard Bashman


Fourth Circuit rules that beauty salon alleged to have told an African-American customer that it did not "do black people’s hair" does not face liability under Title II of the Civil Rights Act of 1964, prohibiting racial discrimination in a "place of public accommodation," but could be held liable under 42 U.S.C. § 1981, which disallows such discrimination in the making and enforcing of contracts: You can access today's ruling, by a partially divided three-judge panel, at this link. The judge who dissented in part would have also reinstated the Title II claim.

The main point of disagreement between the majority and the dissenting judge concerns whether a "spa" constitutes a "place of entertainment."
Posted at 04:54 PM by Howard Bashman



What constitutes "a question of exceptional importance" justifying a grant of rehearing en banc? Eleventh Circuit Judge Ed Carnes addresses that issue in his opinion concurring in that court's order issued today denying rehearing en banc in an unusual prisoner civil rights case.

Back in January 2006, a three-judge panel of the Eleventh Circuit reversed in part the dismissal of a Georgia state prisoner's lawsuit alleging a federal civil rights violation arising from the conduct of a prison guard who, according to the panel's opinion, "made [the prisoner] strip and masturbate for her enjoyment." The panel reinstated the prisoner's claims under the First and Fourth Amendments, writing that the prisoner "has stated a claim under our privacy jurisprudence and for retaliation under the First Amendment." The panel, however, affirmed the trial court's dismissal of the prisoner's Eighth Amendment claim. My earlier coverage of that ruling appears here.

Today, Circuit Judge Rosemary Barkett dissents from the denial of rehearing en banc with respect to that portion of the panel's decision affirming the dismissal of the prisoner's Eighth Amendment claim. In explaining why the Eighth Amendment issue is not deserving of rehearing en banc even if Judge Barkett is correct that the panel erred in upholding the dismissal of that claim, Judge Carnes writes, "If [the prisoner] is entitled to X dollars because certain conduct violates his Fourth Amendment rights, he is not entitled to any more than X dollars if that same conduct also violates his Eighth Amendment rights."

Judge Carnes's opinion concludes: "Judges, acting like law professors, sometimes get caught up in the twists and whirls of a legal issue and debate beyond the point of conceivable consequence the doctrinal tags and tickets to be attached. Especially when deciding whether to take the extraordinary step of going en banc, we should keep in mind that the role of our court system in civil cases is not to decide how many analytical angels can dance on the head of a particular injury. Our role is to determine whether the plaintiff before the court is entitled to relief. We ought to leave the academic points to the academy, and by denying rehearing en banc today we do that."
Posted at 04:33 PM by Howard Bashman



"Fantasy League Wins Ruling; Judge's decision that baseball statistics are in public domain could have far-reaching effects": This article appears today in The Los Angeles Times.

The New York Times today contains an article headlined "No License Is Required to Run a Fantasy League."

The St. Louis Post-Dispatch contains an article headlined "Player statistics are ruled fair game in St. Louis case."

USA Today reports that "Stats ruled free for use in fantasy games."

And The Associated Press provides a report headlined "Strike 1: Major League Baseball can't control player names, stats."

Meanwhile, in commentary, Gene Policinski has an essay entitled "Good news in judge's fantasy-league ruling" online at the First Amendment Center.

I have posted online at this link yesterday's ruling of the U.S. District Court for the Eastern District of Missouri.
Posted at 02:52 PM by Howard Bashman



"Jeffrey Rosen, author of 'The Most Democratic Branch: How the Courts Serve America,' discusses the Bush administration's proposal on military commissions": You can view Law Professor Jeffrey Rosen's appearance on yesterday's broadcast of C-SPAN's "Washington Journal" by clicking here (RealPlayer required).

Meanwhile, Professor Rosen's next book -- "The Supreme Court: The Personalities and Rivalries That Defined America" -- looks to be quite interesting.
Posted at 01:50 PM by Howard Bashman



"Jacque Hollander appeals the dismissal, on statute of limitations grounds, of a personal injury action that she brought against James Brown and Brown Enterprises for an alleged 1988 incident of sexual assault." So begins an opinion that the U.S. Court of Appeals for the Seventh Circuit issued today. Today's decision affirms the dismissal of the case against the Godfather of Soul.

Earlier press coverage of the case can be accessed here and here.
Posted at 01:42 PM by Howard Bashman



"Da Vinci Lawyers agree: Set appeal Time." The Associated Press provides this report.
Posted at 12:33 PM by Howard Bashman


"Tinkering with Tinker standards?" Online today at the First Amendment Center, David L. Hudson Jr. has this essay.
Posted at 12:10 PM by Howard Bashman


Eighth Circuit rules that defendants were entitled to qualified immunity in lawsuit brought by minor teenage girl who objected to being strip-searched after being detained for violating a local curfew law: A unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit today reversed a federal district court's decision holding that two directors of the juvenile detention center were not entitled to qualified immunity. You can access today's ruling at this link.

Additional background on the case is available in an Associated Press report headlined "Strip-search case leads to class-action filing" and a Sioux Falls Argus Leader article headlined "Strip search case on appeal; Federal court to decide legality."
Posted at 12:00 PM by Howard Bashman



"Final Exit: The Sequel; Sam Brownback at your deathbed." Jacob Sullum has this essay online today at Reason.
Posted at 10:55 AM by Howard Bashman


"Congress Considers Warning Labels for Web Sites": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition."
Posted at 09:40 AM by Howard Bashman


"ABA urges halt to 'signing statements'; Presses protection of checks and balances": Today in The Boston Globe, Charlie Savage has an article that begins, "The American Bar Association's House of Delegates voted yesterday to call on President Bush and future presidents not to issue 'signing statements' that claim the power to bypass laws, and it urged Congress to pass legislation to help courts put a stop to the growing practice."

Also today, that newspaper contains an op-ed by Law Professor Laurence H. Tribe entitled "'Signing statements' are a phantom target."
Posted at 08:50 AM by Howard Bashman



"UC Loses Bid to Stop Christian School Suit; A federal judge rules that the case alleging that admissions rules violate student freedoms can proceed to trial": This article appears today in The Los Angeles Times.
Posted at 08:05 AM by Howard Bashman


The Associated Press is reporting: Now available online are articles headlined "Lengthy Mandatory Sentence Appealed"; "Ex-Ohio State RB Maurice Clarett Arrested"; "Homeless in Mass. Sue Over Library Policy"; and "Judge admonished for 'Go Seahawks' Cheer."
Posted at 07:30 AM by Howard Bashman


"Abortion Foe Allen Faulted for Stock in Morning-After Pill Maker": The Washington Post contains this article today.
Posted at 07:25 AM by Howard Bashman


"Virginia vs. Vermont: Virginia should step aside -- and let Janet Miller-Jenkins see her daughter." This editorial appears today in The Washington Post. My most recent earlier coverage is here.
Posted at 07:23 AM by Howard Bashman


"War Crimes Act Changes Would Reduce Threat Of Prosecution": The Washington Post today contains a front page article that begins, "The Bush administration has drafted amendments to a war crimes law that would eliminate the risk of prosecution for political appointees, CIA officers and former military personnel for humiliating or degrading war prisoners, according to U.S. officials and a copy of the amendments."
Posted at 07:22 AM by Howard Bashman


"Lawyers in Murder Appeal Use Cigarette-Break Defense": This article appears today in The New York Times.

My earlier coverage appears at this link.
Posted at 07:18 AM by Howard Bashman



"Bloggers Drive Inquiry on How Altered Images Saw Print": The New York Times contains this article today.

The Washington Post reports today that "Blogger Takes Aim At News Media and Makes a Direct Hit."

And The Christian Science Monitor reports that "A blogger shines when news media get it wrong."
Posted at 07:10 AM by Howard Bashman



"A Face Is Exposed for AOL Searcher No. 4417749": This article and a related graphic appear today in The New York Times.
Posted at 07:08 AM by Howard Bashman


Josh Gerstein is reporting: Today in The New York Sun, he has articles headlined "Plan for Israeli Agents To Use Disguises Challenged" and "Google Founders Silence Designer Of 'Party Plane.'"

The first of those two articles begins, "A proposal to allow Israeli security agents to use 'light disguise' while testifying in an American court is under fire from a left-leaning civil liberties organization, the Center for Constitutional Rights."
Posted at 07:00 AM by Howard Bashman



"Justices aid child-molestation victims": The Newark (N.J.) Star-Ledger today contains an article that begins, "In a sweeping ruling that expands the ability of victims of childhood molestation to sue institutions that allowed it, the New Jersey Supreme Court yesterday cleared the way for a trial against Princeton's prestigious American Boychoir School."

And The New York Times reports today that "High Court in New Jersey Upholds Right to Sue School."

My earlier coverage appears at this link.
Posted at 06:55 AM by Howard Bashman



"Criminalizing Interstate Abortion Travel: Congress Targets People Who Assist Minors in Trouble." Sherry F. Colb has this essay online today at FindLaw.
Posted at 06:48 AM by Howard Bashman


Tuesday, August 08, 2006

"With DeLay Out, GOP Searches for Write-In Candidate": This article will appear Wednesday in The Washington Post.

And The New York Times on Wednesday will report that "DeLay Repeats His Refusal to Run for His Old Seat."
Posted at 10:40 PM by Howard Bashman



"Justice Kennedy and the Meaning of 'Freedom'": This audio segment (RealPlayer required) featuring Dahlia Lithwick appeared on today's broadcast of NPR's "Day to Day."
Posted at 09:40 PM by Howard Bashman


Interesting articles posted online yesterday at SSRN (all via "Legal Theory Blog"): Law Professor Ross E. Davies has an essay entitled "The Other Supreme Court." And no, he's not talking about the one consisting of bobblehead dolls.

Law Professor Cass R. Sunstein has an essay entitled "Clear Statement Principles and National Security: Hamdan and Beyond."

Law Professors Curtis A. Bradley and Eric A. Posner have an essay entitled "Presidential Signing Statements and Executive Power."

And Giacomo A.M. Ponzetto and Patricio A. Fernandez have an essay entitled "Case Law vs. Statute Law: An Evolutionary Comparison."
Posted at 09:35 PM by Howard Bashman



"It could be the most costly piece of punctuation in Canada. A grammatical blunder may force Rogers Communications Inc. to pay an extra $2.13-million to use utility poles in the Maritimes after the placement of a comma in a contract permitted the deal's cancellation." So begins an article headlined "Comma quirk irks Rogers" published yesterday in The Toronto Globe and Mail (via WSJ.com's "Law Blog").
Posted at 09:20 PM by Howard Bashman


The Associated Press is reporting: Now available online are articles headlined "Court Rejects Nev. Yucca Mountain Appeal"; "DeLay Vows to Take Name Off Texas Ballot"; "Lawyers' Group Attacks Bush Revisions"; and "Judge Declares Lawyer Drunk in Court."
Posted at 09:08 PM by Howard Bashman


The U.S. Secretary of Labor should file its amicus briefs in a more timely manner: So said the U.S. Court of Appeals for the Fourth Circuit in this order issued today.
Posted at 08:35 PM by Howard Bashman


"NJ Court Lets Sex Abuse Suit Go Forward": The Associated Press provides a report that begins, "A state law protecting nonprofit organizations from negligence lawsuits does not apply to all sex abuse cases, the New Jersey Supreme Court ruled Tuesday."

You can access today's ruling of the Supreme Court of New Jersey at this link.

Law Professor Lawrence Lessig argued the case on appeal for the prevailing party, and earlier today he had this blog post about the ruling.
Posted at 08:20 PM by Howard Bashman



Programming note: I have a meeting out of the office this afternoon in connection with a new appellate representation. Additional posts will appear later today.
Posted at 12:52 PM by Howard Bashman


"We must determine whether an employee has an expectation of privacy in his workplace computer sufficient to suppress images of child pornography sought to be admitted into evidence in a criminal prosecution." A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit answers that question "no" in an opinion issued today.
Posted at 12:50 PM by Howard Bashman


Three-judge D.C. Circuit panel rejects the State of Nevada's objections to the construction of an underground nuclear repository at Yucca Mountain, Nevada: You can access today's ruling at this link. Additional background on the Yucca Mountain Repository can be accessed here.
Posted at 11:15 AM by Howard Bashman


"Court reinstates Rio Tinto lawsuit in U.S." The Associated Press provides this report.

Reuters reports that "Islanders win appeal in claim against Rio Tinto."

Radio New Zealand International reports that "US court reopens Panguna case against Rio Tinto."

The Hagens Berman law firm yesterday issued a press release entitled "Oceanic Islanders Win Appeal in Massive Claim against Mining Giant Rio Tinto for Alleged Ecocide and Human Rights Crimes." That law firm provides additional background about the case at this link.

Finally, my earlier coverage appears here.
Posted at 11:10 AM by Howard Bashman



Three-judge Sixth Circuit panel divides over whether a lawsuit asserting that 3M Company had unlawfully monopolized and attempted to monopolize the market for do-it-yourself retail automotive coated abrasives alleged a sufficient antitrust injury: The products that are the subject of the lawsuit are sandpaper, cloth sanding rolls, sanding discs, compounding paper, polishing discs, grinding discs, and finishing paper used in the preparation of automotive surfaces for painting.

Today, in an opinion by Circuit Judge Deborah L. Cook, in which Senior Circuit Judge Eugene E. Siler, Jr. has joined, the Sixth Circuit reverses a district court order that had dismissed the case for lack of antitrust standing at the pleadings stage. Circuit Judge Jeffrey S. Sutton dissents in an opinion you can access here.
Posted at 10:55 AM by Howard Bashman



"DeLay to Remain on November Ballot in Texas": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition."
Posted at 09:38 AM by Howard Bashman


"State High Court Rejects 'Night Stalker's' Appeal; Convicted serial killer argued he should have been given better lawyers and a longer psychiatric evaluation": Maura Dolan has this article today in The Los Angeles Times.

You can access yesterday's ruling of the Supreme Court of California at this link.
Posted at 07:28 AM by Howard Bashman



"Oklahoma's Lethal Injections Called Fatally Flawed": Henry Weinstein has this article today in The Los Angeles Times.
Posted at 07:25 AM by Howard Bashman


"Gay Marriage Gets Even; Keep the confetti handy, because the tide has turned on same-sex unions": David Ehrenstein has this op-ed today in The Los Angeles Times.
Posted at 07:20 AM by Howard Bashman


"Court Rules for I.B.M. on Pension": The New York Times today contains an article that begins, "A three-judge appellate panel ruled yesterday that I.B.M. did not discriminate against its older workers when it switched retirement plans in 1999, a long-awaited decision that could help shelter hundreds of companies from possible age discrimination suits."

And USA Today reports today that "Court rules IBM pension change didn't discriminate; Plaintiff may take age-bias case to U.S. Supreme Court."

My earlier coverage appears at this link.
Posted at 07:00 AM by Howard Bashman



"After Protest, Coast Guard Lets Members Wear Skullcaps": Today in The New York Sun, Josh Gerstein has an article that begins, "In the face of protests on behalf of a chasidic Jew in Rockland County, the Coast Guard has changed its uniform policy to allow service members to wear yarmulkes while on duty."
Posted at 06:53 AM by Howard Bashman


"The State of the Nation on Same-Sex Marriage: Key Court Losses Mean It May Be Restricted to Massachusetts For Now." Joanna Grossman has this essay online at FindLaw today.
Posted at 06:50 AM by Howard Bashman


Monday, August 07, 2006

"Republicans Lose Their Bid to Drop DeLay From Texas Ballot; Scalia Refuses to Block Appellate Court Ruling": This article will appear Tuesday in The Washington Post.

And Tuesday's edition of The New York Times will report that "DeLay Must Stay on Ballot as Court Rejects Appeal."
Posted at 11:15 PM by Howard Bashman



"Man seeks injunction against Luna book; Author disputes defamation claim": One week ago today, The Harrisburg (Pa.) Patriot-News published an article that begins, "The owner of Schaad Detective Agency in York is trying to stop sales of a local writer's book about the death of Baltimore-based federal prosecutor Jonathan Luna."

And last Tuesday, The York Dispatch published an article headlined "Fighting sale of book: Detective agency owner previously sued for libel."

Back in February 2005, the Baltimore City Paper published this review of the book. The book's publisher has a web page titled "Who killed Jonathan Luna?" Portions of the book are available for download via this link.
Posted at 11:04 PM by Howard Bashman



"Scalia rejects plea to get DeLay off ballot": The Houston Chronicle provides this news update.

And The Austin American-Statesman provides a news update headlined "DeLay ballot battle ends; U.S. Supreme Court won't intervene on behalf of Texas Republican Party."
Posted at 08:10 PM by Howard Bashman



"Scalia Rejects Texas GOP Appeal on DeLay ": The Associated Press provides this report.
Posted at 05:38 PM by Howard Bashman


Justice Antonin Scalia denies request for stay in DeLay ballot case: See the update to this post from Lyle Denniston at "SCOTUSblog."

In earlier coverage, The Houston Chronicle provided a news update headlined "Texas GOP asks Scalia to block DeLay ruling."
Posted at 05:12 PM by Howard Bashman



"Texas GOP asks Scalia for help on ballot issue": Lyle Denniston has this post online at "SCOTUSblog." The application for a stay, filed today in the U.S. Supreme Court, can be accessed at this link.
Posted at 04:10 PM by Howard Bashman


The Associated Press is reporting: Now available online are articles headlined "Texas GOP Asks Scalia to Block Ruling"; "Court Sides With IBM in Pension Case" (my earlier coverage is here); and "Prosecutors Try to Block CIA Testimony."
Posted at 03:02 PM by Howard Bashman


"This is the second appeal involving the detention and handcuffing of a nine-year-old student, Laquarius Gray, during her physical education class." So begins an opinion that a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit issued today.

In affirming the federal district court's denial of qualified immunity to the sheriff's deputy who handcuffed the child, today's opinion explains, "Thus, Deputy Bostic's handcuffing Gray was not reasonably related to the scope of the circumstances that justified the initial investigatory stop. Rather, the handcuffing was excessively intrusive given Gray's young age and the fact that it was not done to protect anyone's safety. Therefore, the handcuffing of Gray violated Gray's Fourth Amendment rights."

And later, the opinion explains, "Deputy Bostic's purpose in handcuffing Gray was simply to punish her and teach her a lesson. Every reasonable officer would have known that handcuffing a compliant nine-year-old child for purely punitive purposes is unreasonable. We emphasize that the Court is not saying that the use of handcuffs during an investigatory stop of a nine-year-old child is always unreasonable, but just unreasonable under the particular facts of this case."
Posted at 02:55 PM by Howard Bashman



"We must decide whether aliens stopped at the border have a constitutional right to be free from false imprisonment and the use of excessive force by law enforcement personnel." A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit answers "yes" in an opinion dated last Friday but posted online today.
Posted at 02:45 PM by Howard Bashman


"No Man Is an Island: Anthony Kennedy's surprising charge to the American Bar Association." Dahlia Lithwick has this jurisprudence essay online at Slate.
Posted at 02:35 PM by Howard Bashman


"Judge Boyle acknowledged errors on two of his financial disclosure reports, for which his accountant takes the blame, according to public documents received by CIR." The Center for Investigative Reporting, in today's entry in the "Timeline of Uncertainty for Bush Judicial Nominee," links to this newly-obtained set of letters.
Posted at 02:20 PM by Howard Bashman


Divided three-judge Ninth Circuit panel reinstates most of the claims of Bougainville, Papua New Guinea residents who allege that they or their family members were victims of numerous violations of international law resulting from Rio Tinto, PLC's Bougainville mining operations and the 10-year civil conflict that followed an uprising at the Rio Tinto mine: The lengthy decision issued today begins, "This appeal presents questions of justiciability and exhaustion in the context of the Alien Tort Claims Act."
Posted at 12:50 PM by Howard Bashman


Seventh Circuit reverses decision which held that the IBM Personal Pension Plan violates a subsection of ERISA that prohibits age discrimination: Circuit Judge Frank H. Easterbrook issued today's opinion on behalf of a unanimous three-judge panel.
Posted at 12:45 PM by Howard Bashman


"Conn. Court Lays Off Gay-Marriage Fray": The Associated Press provides this report on a ruling that the Supreme Court of Connecticut released today.

And in other coverage, Lynne Tuohy of The Hartford Courant provides a news update headlined "Court Rejects Bid To Enter Gay Marriage Fight."
Posted at 12:11 PM by Howard Bashman



"Larry Tribe on the ABA Signing Statements Report": Law Professor Laurence H. Tribe has this guest post at "Balkinization."
Posted at 11:45 AM by Howard Bashman


The American Bar Association posts online video of Justice Anthony M. Kennedy's remarks at the group's 2006 Annual Meeting in Honolulu: A clip titled "Justice Kennedy Declares World Jury Still Out on Meaning of Freedom" can be viewed in both RealPlayer and Windows Media Player formats.

And Justice Kennedy's remarks on receiving the ABA International Rule of Law Award (thereby further angering Tom DeLay) can likewise be viewed in RealPlayer and Windows Media Player formats.

Thanks to WSJ.com's "Law Blog" for the pointer to the first of these video segments.
Posted at 11:35 AM by Howard Bashman



Is a juror who smokes cigarettes less likely to sentence another to death? Yesterday's edition of The Columbus (Ohio) Dispatch contained an article headlined "Smoking ban swayed jury’s decisions, appeal argues."

And The Associated Press reports that "Death Row Inmate Appeals Over Smoking."

The case is scheduled to be argued tomorrow in the Supreme Court of Ohio. That court provides additional background about the case and also a link to view the oral argument live online.
Posted at 10:30 AM by Howard Bashman



"Judge could alter war on terror; Taylor is to rule soon in spying case": The Detroit Free Press today contains this article about U.S. District Judge Anna Diggs Taylor of the Eastern District of Michigan. Additional information about Judge Taylor can be accessed here and here.
Posted at 10:20 AM by Howard Bashman


"Marriage battle takes new shape in Colorado; Gay rights groups push to define status of domestic partners": This article appears today in The San Francisco Chronicle.
Posted at 10:15 AM by Howard Bashman


"Does the government have the right to keep secret a law that is applied to millions of Americans every day? That's the question John Gilmore has asked the Supreme Court to decide in his petition to the Court, filed on the 4th of August 2006." That's the latest from the Gilmore v. Gonzales web site. You can access the petition for writ of certiorari filed last week at this link. Thanks to Reason's "Hit and Run" blog for the pointer.
Posted at 08:45 AM by Howard Bashman


"Commentary: What Do Appellate Attorneys Actually Do?" This week's installment of my "On Appeal" column for law.com can be accessed here.

And law.com has also posted online a related article from last month headlined "Appeals for More Appellate Lawyers Being Answered" in which I am quoted.
Posted at 07:20 AM by Howard Bashman



"More Gays Advocating Legislating; The electoral push is less about an agenda than about putting faces at the table, activists say": This article appears today in The Los Angeles Times.

And in somewhat related news, The Washington Post today contains an article headlined "Feeling Unwelcome, Some Gays Vacate Virginia; November Ballot Ban Helps Fuel Migration."
Posted at 07:18 AM by Howard Bashman



"In a Shift, Union Group Backs Abortion Rights; The California Labor Federation votes to oppose Prop. 85, which would direct doctors to notify minors' parents": The Los Angeles Times contains this article today.
Posted at 07:14 AM by Howard Bashman


"When Students Speak: Does the First Amendment protect public school students who want to bait gays?" This editorial appears today in The Washington Post.
Posted at 07:04 AM by Howard Bashman


"Portrait of the Chief Justice as a Family Man": That's the headline of Charles Lane's "Full Court Press" column, which appears today in The Washington Post.
Posted at 07:02 AM by Howard Bashman


"Court's Eminent-Domain Edict Is a Flashpoint on State Ballots": The Wall Street Journal today contains an article (free access) that begins, "Last year's Supreme Court ruling validating a Connecticut city's authority to seize private property for economic development has sparked a backlash. In several states, conservative groups are pushing ballot initiatives to curb local governments' abilities to exercise not only eminent domain, but also land use and environmental controls."
Posted at 06:52 AM by Howard Bashman


"For Gays, New Math: Rethinking tactics after a series of setbacks nationwide." This article appears in the August 14, 2006 issue of U.S. News & World Report.
Posted at 06:50 AM by Howard Bashman


Sunday, August 06, 2006

"Blawg Review #69": Available online here, at "Unlearned Hand."
Posted at 11:52 PM by Howard Bashman


"15 States Expand Right to Shoot in Self-Defense": Adam Liptak will have this article Monday in The New York Times.
Posted at 11:50 PM by Howard Bashman


"This week, C-SPAN presents an exclusive interview with Chief Justice John Roberts. This interview occurs from the Chief Justice's office at the Supreme Court Building." Yesterday evening's broadcast of C-SPAN's "America & the Courts" can now be accessed online, on-demand by clicking here (RealPlayer required).
Posted at 09:38 PM by Howard Bashman


From the "Better late than never" department: A few weeks ago, The Detroit Free Press published an article headlined "Judge throws out challenge to paternity law" that begins, "A federal judge has summarily dismissed a lawsuit filed by a Saginaw man who challenged the constitutionality of Michigan's paternity law after his ex-girlfriend had a baby against his wishes."

You can access the recent ruling of the U.S. District Court for the Eastern District of Michigan at this link.

Thanks to Ethan Leib at "PrawfsBlawg" for the pointer.
Posted at 09:33 PM by Howard Bashman



"Group opposes loss of signing statements; Lawyers say issue is president's use": Charlie Savage had this article yesterday in The Boston Globe.
Posted at 09:30 PM by Howard Bashman


"Justice Kennedy calls for democracy worldwide": This article appears today in The Honolulu Advertiser.
Posted at 09:28 PM by Howard Bashman


"At detainees' trials, will hearsay be heard? Rules of evidence are a sticking point, as Congress weighs how to mete out justice to terror suspects." Warren Richey will have this article Monday in The Christian Science Monitor.
Posted at 07:54 PM by Howard Bashman


"West" magazine "Gone Wild": The lead story in today's edition of the magazine section of The Los Angeles Times is headlined "'Baby, Give Me a Kiss': The man behind the 'Girls Gone Wild' soft-porn empire lets Claire Hoffman into his world, for better or worse."

This blog's recent "Gone Wild" coverage can be accessed via this link.
Posted at 12:09 PM by Howard Bashman



"High Court's 1946 War Crimes Ruling Resounds; Justice Stevens drew from what he saw in the trial of a Japanese general to write for the majority in the recent Guantanamo decision": David G. Savage has this article today in The Los Angeles Times.
Posted at 12:00 PM by Howard Bashman


"Nothing Wrong With Kansas: State voters move science education out of the Victorian era." This editorial appears today in The Washington Post.
Posted at 11:52 AM by Howard Bashman


"Kennedy: Jury's Out on U.S. Democracy." The AP provides a report that begins, "The United States is not making the case for freedom, democracy and Western law to the rest of the world, Supreme Court Justice Anthony Kennedy said Saturday."
Posted at 11:40 AM by Howard Bashman


"Starr: Americans Misunderstand Courts." The Associated Press provides this report.
Posted at 11:35 AM by Howard Bashman


"Criteria differ on judging justices": The Honolulu Advertiser today contains an article that begins, "U.S. Sen. Daniel K. Akaka and his challenger in the Democratic primary, U.S. Rep. Ed Case, would have split over President Bush's nominees to the Supreme Court, indicating important differences in how they approach one of the Senate's most distinctive responsibilities."
Posted at 09:45 AM by Howard Bashman


Saturday, August 05, 2006

"Challenge fails: Adoption by gay couples stands; State supreme court declines to hear case." The Indianapolis Star contains this article today.
Posted at 10:23 PM by Howard Bashman


"Cemetery loses key fight; Federal ruling boosts city's bid to remove graves near O'Hare": This article appears today in The Chicago Tribune.

The Chicago Sun-Times reports today that "Federal court rules in favor of O'Hare project."

Reuters reports that "U.S. court strikes down Chicago airport challenge."

And The Associated Press reports that "Federal court rules in favor of expansion at O'Hare; Project expected to cost $15 billion."

My earlier coverage appears at this link.
Posted at 10:22 PM by Howard Bashman



"Convictions in HIV case upheld by Iowa court": The Iowa City Press-Citizen today contains an article that begins, "The Iowa Supreme Court on Friday upheld the convictions of an Iowa City man sentenced to 50 years in prison for exposing four people to the AIDS virus."

My earlier coverage appears at this link.
Posted at 10:17 PM by Howard Bashman



"Judges release new congressional map; Travis County anchors Doggett district; special elections required": This article appears today in The Austin American-Statesman.

The San Antonio Express-News reports today that "Webb County is back in one piece."

The Dallas Morning News reports that "Remap ruling gives Dems a boost; But panel's changes to 5 districts don't ensure any gains in seats."

And The Fort Worth Star-Telegram reports that "5 South Texas districts redrawn."
Posted at 10:11 PM by Howard Bashman



Bowie Baysox 7, Trenton Thunder 6: On a beautifully clear if hot day in the northeast, my son and I attended today's Trenton Thunder day game. The Thunder lost by one run, but a fun time was nevertheless had by all. You can access the box score at this link, while a wrap (explaining why the closer for the Baysox was so popular to the local fans) is available here.
Posted at 05:22 PM by Howard Bashman


"Ex-Bush Aide Admits Shoplifting and Is Fined": The New York Times contains this article today.

The Washington Post reports today that "Ex-Aide To Bush Pleads Guilty; Allen Avoids Jail For Shoplifting."

The Richmond Times-Dispatch reports that "Allen cites stress in theft conviction; Former White House aide gets probation on the shoplifting charges."

And The Charlotte Observer reports that "Ex-Bush adviser pleads guilty; Claude Allen says stress, work schedule led him to steal from stores."
Posted at 09:00 AM by Howard Bashman



"Reporters' Lawyers Cite Press Freedom in Steroid-Use Leak Investigation": This article appears today in The Los Angeles Times.

And today in The San Francisco Chronicle, Bob Egelko has an article headlined "Judge hears arguments over Chronicle reporters' subpoenas."
Posted at 08:55 AM by Howard Bashman



"Congress Is Stalled on New Terror Laws; As elections approach, lawmakers are divided on what rules to set for tribunals and wiretaps": David G. Savage and Maura Reynolds have this article today in The Los Angeles Times.
Posted at 08:50 AM by Howard Bashman


"Support From the Sidelines; Md. Judicial Code Makes Katie O'Malley a Spectator": The Washington Post contains this article today.
Posted at 08:45 AM by Howard Bashman


"Not So Fast, Mr. DeLay: It looks as if Democrats will get to run against him after all." This editorial appears today in The Washington Post.
Posted at 08:40 AM by Howard Bashman


"Parental Rights Upheld for Lesbian Ex-Partner": Adam Liptak has this article today in The New York Times.

My earlier coverage appears at this link.
Posted at 08:33 AM by Howard Bashman



"Listening to the Lawyers": The New York Times today contains an editorial that begins, "We’ve known for some time now that the administration sidelined the military lawyers when President Bush created the thinly disguised kangaroo courts known as military commissions to try the inmates of Guantanamo Bay."
Posted at 08:30 AM by Howard Bashman


Friday, August 04, 2006

Available online from law.com: An article is headlined "Calif. High Court: No Mystery to Employee's 'At Will' Contract."

In news from New York, "2nd Circuit: Judge's 'Gut' Feeling Proper Basis for Sentence Under Advisory Guidelines."

An article reports that "3rd Circuit Upholds Lawyer's Conviction in Scheme to Launder Drug Money."

And the brand new installment of my "On Appeal" column is headlined "What Do Appellate Attorneys Actually Do?" Coincidentally, law.com has posted online a related article from last month headlined "Appeals for More Appellate Lawyers Being Answered."
Posted at 10:44 PM by Howard Bashman



"Ind. High Court Lets Gay Adoption Stand": The Associated Press provides this report.

And at "The Indiana Law Blog," Marcia Oddi provides this coverage.
Posted at 09:15 PM by Howard Bashman



"A bid to reopen 1973 abortion ruling": Lyle Denniston has this post online at "SCOTUSblog."
Posted at 09:10 PM by Howard Bashman


"Lawyers Cite 1st Amendment in BALCO Leak": David Kravets of The Associated Press provides this report.

And Bob Egelko of The San Francisco Chronicle provides a news update headlined "Chronicle reporters appear before judge; He says they may have uphill fight in refusing to testify about BALCO leaks."
Posted at 05:30 PM by Howard Bashman



Ann Althouse vlogs about the books "Meet My Grandmother, She's a Supreme Court Justice" and "John G. Roberts Jr., Chief Justice": You can view the vlog via this link ("vlog" = "video" + "blog").
Posted at 05:04 PM by Howard Bashman


"Because permanent signs are permitted for commercial speech, the trial judge found that the ordinance unconstitutionally favors commercial speech over at least one type of noncommercial speech -- political messages." And as as result, an Alabama-based federal district court entered a permanent injunction prohibiting the City of Trussville, Alabama from enforcing a portion of the city's sign ordinance. Today, a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit issued an opinion affirming that permanent injunction.
Posted at 04:58 PM by Howard Bashman


"Court Upholds HIV-Spreading Convictions":The Associated Press provides a report that begins, "A man convicted of having unprotected sex with four people while knowing he carried the virus that causes AIDS was denied appeals Friday by the Iowa Supreme Court."

The Supreme Court of Iowa today issued opinions in four separate cases involving the same defendant, and you can access those opinions here, here, here, and here.
Posted at 04:50 PM by Howard Bashman



"Fullam Tosses Out Filmmaker's Defamation Suit Against Kerry": Shannon P. Duffy of The Legal Intelligencer provides this news update (free access).
Posted at 04:35 PM by Howard Bashman


"Judges release congressional map for fall elections; Doggett gets more of Central Texas": The Austin American-Statesman provides a news update that begins, "A three-judge federal panel today released a new congressional map for the November elections that gives U.S. Rep. Lloyd Doggett, D-Austin, more of Travis County and Central Texas."

And The Associated Press reports that "Judges 'restore Latino voting strength' in South Texas."

At the "Election Law" blog, a post titled "Breaking News: Three Judge Court Issues Texas Redistricting Order" contains links to today's opinion and order.
Posted at 04:30 PM by Howard Bashman



"Judge Pryor, Unplugged": Kathryn Jean Lopez has this post at National Review Online's "Bench Memos" blog.
Posted at 04:12 PM by Howard Bashman


"Former Bush Adviser Gets Probation": The AP provides a report that begins, "A former White House adviser pleaded guilty to theft Friday, briefly breaking into tears as he tried to explain to a judge why he made phony returns at discount department stores while working as a top aide to President Bush." You can access earlier coverage via this link.
Posted at 04:10 PM by Howard Bashman


"Judge Dismisses Suit Against Sen. Kerry": The Associated Press provides a report that begins, "A federal judge dismissed a filmmaker's defamation lawsuit against Sen. John Kerry, saying remarks linked to Kerry's campaign during the heat of the 2004 presidential race amount to political opinions."

You can access yesterday's ruling of the U.S. District Court for the Eastern District of Pennsylvania at this link.
Posted at 03:54 PM by Howard Bashman



"Environmentalists Ask Senate to Leave the 9th Circuit Alone": Lawrence Hurley has this article today in The Daily Journal of California.
Posted at 03:22 PM by Howard Bashman


"A proposed class representative is neither typical nor adequate if the representative is subject to a unique defense that is likely to become a major focus of the litigation." So holds the U.S. Court of Appeals for the Third Circuit in an opinion issued today.
Posted at 02:55 PM by Howard Bashman


No doubt that if circuit-riding were to resume, the Seventh Circuit would perform the task ever so efficiently: In an opinion issued today rejecting a saleswoman's sex and age discrimination claims, Circuit Judge Frank H. Easterbrook writes, "How to construct the shortest route that visits all destinations is an old subject: in graph theory and linear programming it is known as the 'traveling salesman problem' and is the subject of a considerable literature."
Posted at 02:24 PM by Howard Bashman


"Vt. Weighs in on Lesbian Custody Fight": The Associated Press provides a report that begins, "The state Supreme Court ruled Friday that Vermont courts, and not those in Virginia, have exclusive jurisdiction over a case involving two women battling for custody of a child they had while they were in a lesbian relationship. The unanimous ruling conflicts with a series of decisions in Virginia, where courts ruled the state's anti-gay marriage laws controlled the case."

You can access today's ruling of the Supreme Court of Vermont at this link.
Posted at 01:14 PM by Howard Bashman



Rex Heinke and Tony Mauro discuss the "Supreme Court Today": Yesterday, I linked here to the audio for the newest installment of Legal Talk Network's "Coast to Coast" program, which happens to be on the subject of "Blawgging at Big Law Firms."

I should also mention that last month, the "Coast to Coast" program had a half-hour segment focusing on the U.S. Supreme Court. You can access that audio via this link.
Posted at 11:45 AM by Howard Bashman



"The Reagan Revolution in the Network of Law": Law Professors Frank B. Cross and Thomas A. Smith have this article (abstract with links for download) online at SSRN. The article's abstract begins, "This paper analyzes the effect of the Rehnquist Court on Supreme Court precedent, using a network of all Court citations to other Supreme Court cases." Thanks to "Legal Theory" for the pointer.
Posted at 11:40 AM by Howard Bashman


"Chronicle reporters may face contempt charges": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "A dispute between the Justice Department and The Chronicle over the use of grand jury testimony in stories about athletes' steroid use will come to a showdown today in a San Francisco federal courtroom."
Posted at 11:33 AM by Howard Bashman


Airport runway expansion at O'Hare, its impact on church cemeteries, and a resulting claim under the Religious Freedom Restoration Act: Today a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit decides whether the Federal Aviation Administration's approval of an airport layout plan incident to a determination of eligibility for federal funding sufficed to subject the FAA to claims arising under RFRA. The majority answers "no," while Circuit Judge Thomas B. Griffith dissents on that point. You can access today's complete ruling at this link.
Posted at 10:54 AM by Howard Bashman


U.S. Senate returns five federal appellate court nominations to President Bush: Technically, at least as of this moment, you can no longer accurately refer to Terrence W. Boyle and William J. Haynes II as current nominees to the Fourth Circuit, you can no longer accurately refer to Michael B. Wallace as a current nominee to the Fifth Circuit, and you can no longer accurately refer to William Gerry Myers III and N. Randy Smith as current nominees to the Ninth Circuit. Details here and here (via "Confirm Them").
Posted at 10:20 AM by Howard Bashman


"Professor Wins Suit Against Blog Site": The Associated Press provides this report from China.
Posted at 10:07 AM by Howard Bashman


"Appeals Panel Keeps DeLay on Ballot; GOP Will Ask Supreme Court to Delist Former Lawmaker": The Washington Post contains this article today.

And USA Today reports today that "Ruling keeps DeLay on ballot; GOP to appeal to high court."
Posted at 07:27 AM by Howard Bashman



"Justice After Guantanamo: The White House still thinks the ends justifies the means in trying suspected terrorists." This editorial appears today in The Los Angeles Times.
Posted at 07:24 AM by Howard Bashman


"A Better Way on Detainees": Today in The Washington Post, Law Professors Jack Goldsmith and Eric A. Posner have an op-ed that begins, "Everyone involved in the contentious negotiations between the White House and Congress over the proper form for military commissions seems to agree on at least one thing: that al-Qaeda and Taliban terrorists ought to be prosecuted. We think this assumption is wrong: Terrorist trials are both unnecessary and unwise."
Posted at 07:20 AM by Howard Bashman


"Specter's NSA Plan Hits Snag; Senate Democrats Also Vow to Block Justice Dept. Confirmation": This article appears today in The Washington Post.
Posted at 07:18 AM by Howard Bashman


"Hale sues attorney for malpractice; White supremacist serving 40-year term": The Chicago Tribune today contains an article that begins, "White supremacist Matthew Hale, serving 40 years in a Colorado prison for plotting to kill a federal judge in Chicago, is suing his former attorney for malpractice."

And The Associated Press reports that "White Supremacist Files Malpractice Suit."
Posted at 07:12 AM by Howard Bashman



"$135M jury verdict against stadium beer vendor overturned": The Newark (N.J.) Star-Ledger today contains an article that begins, "An appeals court has overturned a landmark $135million jury verdict against the beer vendor at Giants Stadium and a fan whose drunken-driving accident left a young girl paralyzed."

And The New York Times reports today that "Court Overturns Jury Award Against Stadium Concessionaire."

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



The Associated Press is reporting: Now available online are articles headlined "GOP to Take DeLay Case to Supreme Court" and "Jailing of Reporters Send Powerful Signal."
Posted at 07:03 AM by Howard Bashman


Thursday, August 03, 2006

"'Indecency' Debate To Play Out In Series Of Appeals Court Battles": National Journal provides this report.
Posted at 10:58 PM by Howard Bashman


In Friday's edition of The New York Times: An article will report that "DeLay Stays on Ballot, Judges Rule."

And Adam Liptak will have an article headlined "Prison Disciplines Inmate Who Paints With M&M’s." Liptak's earlier article on this subject, published July 21, 2006, was headlined "Behind Bars, He Turns M&M’s Into an Art Form."
Posted at 10:40 PM by Howard Bashman



"Against All Odds: Antigua Besting U.S. in Internet Gambling Case at WTO." The Washington Post on Friday will contain an article that begins, "Locked in a federal prison in the Nevada desert, tortured by the distant lights of the Las Vegas strip, Jay Cohen couldn't stop thinking about getting even with the government that had put him away -- and his revenge fantasy had a unique twist."
Posted at 10:32 PM by Howard Bashman


Available online from law.com: Tony Mauro reports that "Secrets Revealed in New Roberts Biography."

In other news, "Pentagon GC's Bid for 4th Circuit Seat Threatened; William Haynes is taking heat for his stance on Guantanamo interrogation policy."

An article reports that "Calif. Supremes Wait for Smoke to Clear Over Punitive Damages."

And Shannon P. Duffy reports that "Holocaust Survivor Loses Bid to Sue German Companies."
Posted at 10:08 PM by Howard Bashman



"Why So Few Minority Women Stay at Law Firms": This audio segment (RealPlayer required) appeared on this evening's broadcast of NPR's "All Things Considered."
Posted at 10:02 PM by Howard Bashman


"Judges indicate they will draw their own congressional map": The San Antonio Express-News provides this update.

And The Austin American-Statesman provides a news update headlined "Court hears redistricting plans; Presiding judge suggests redrawing map doesn't have to hurt incumbents."
Posted at 09:10 PM by Howard Bashman



"Critics Say Library Case 'Overcensored'": The Associated Press provides this report.
Posted at 09:02 PM by Howard Bashman


"DeLay ballot issue heads for Court": At "SCOTUSblog," Lyle Denniston has a post that begins, "The head of the Texas Republican Party, seeking to clear a space on the November election ballot for a new GOP candidate for the House of Representatives, announced plans Thursday to file an appeal to the Supreme Court on an expedited basis, after the Fifth Circuit Court kept former Rep. Tom DeLay on the ballot." The Fifth Circuit's opinion issued today is now available over that court's web site at this link.
Posted at 08:32 PM by Howard Bashman


First Circuit sets aside $950,000 defamation judgment in favor of a former assistant state's attorney in Maryland and against The Boston Phoenix: At issue was whether the federal district court properly determined that the plaintiff was a private figure and not a public official for libel-law purposes. You can access at this link today's ruling, which will necessitate a new trial.
Posted at 05:00 PM by Howard Bashman


"Ninth Circuit Orders Officials to Allow Sikh Group to Build Temple; Panel Says Sutter County 'Substantially Burdened' Religious Freedom by Repeatedly Denying Permit": Yesterday's edition of Metropolitan News-Enterprise contained this article.

Yesterday's edition of The Appeal-Democrat of Marysville-Yuba City, California contained an article headlined "Sikh temple wins in court."

And today in The San Francisco Chronicle, Bob Egelko reports that "Sikhs can build rural temple."

My earlier coverage appears at this link.
Posted at 04:35 PM by Howard Bashman



"Further energy refunds possible; Appeals court says federal limit was issued in error": Bob Egelko has this article today in The San Francisco Chronicle.

The San Diego Union-Tribune reports today that "U.S. court raps FERC, paves way for refunds; $1 billion at issue from 2000-01 energy crisis."

The Sacramento Bee contains an article headlined "Split energy crisis ruling; Court says state may pursue $900 million in refunds but takes $1.8 billion off table."

And The Contra Costa Times reports that "Court urges power refunds; Ninth Circuit attacks the FERC's position it could not demand money from generators, traders over 2001 energy crisis."
Posted at 04:30 PM by Howard Bashman



"Initial Thoughts on Fifth Circuit Ruling Unanimously Upholding District Court Decision Preventing Texas Republican Party from Naming a Replacement for Tom DeLay on the Ballot": Rick Hasen has this post at his "Election Law" blog.
Posted at 04:10 PM by Howard Bashman


"Blawgging at Big Law Firms": That's the title of this week's broadcast (recorded yesterday) of "Coast to Coast" on the Legal Talk Network. Guests on the program were Denise Howell of the "Bag and Baggage" blog, Ernie Svenson of the "Ernie the Attorney" blog, and me. You can listen to the broadcast by clicking here (Windows Media Player format).
Posted at 03:45 PM by Howard Bashman


"Legal Battle over an Anti-War T-Shirt": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Day to Day."
Posted at 03:44 PM by Howard Bashman


Under Illinois law, an insurer's duty to indemnify may arise even in the absence of any duty on the insurer's behalf to defend a lawsuit against the insured: A unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued this decision today.
Posted at 03:30 PM by Howard Bashman


"New Opposition to Efforts to Split the Ninth Circuit; Non-Partisan Opposition to the Right-Wing Ideological Push to Split the Ninth Circuit": The organization Earthjustice today issued a press release that begins, "Today, Earthjustice and more than 100 civil rights, women's rights, disability rights, labor, health, religious, senior, conservation and other national, regional, state and local groups, sent a letter to Senators urging them to oppose S. 1845, 'The Circuit Court of Appeals Restructuring and Modernization Act of 2005,' and other proposals to split the 9th Circuit U.S. Court of Appeals into two or more circuit courts." You can access that letter at this link. And a related document, titled "Ideologically-Based Efforts to Split the 9th Circuit Court of Appeals," is here.
Posted at 03:15 PM by Howard Bashman


"Court rules GOP can't replace DeLay on ballot": The Houston Chronicle provides this news update reporting on today's ruling of the U.S. Court of Appeals for the Fifth Circuit.

In other early coverage, The Austin American-Statesman provides a news update headlined "DeLay must stay on congressional ballot; Appeals court upholds lower court's ruling."

And The Associated Press reports that "Court Rules DeLay's Name Stays on Ballot."
Posted at 02:52 PM by Howard Bashman



"A Courthouse Sprouts Curves and Color; Fanciful Annex to Federal Structure Is Nearly Finished": The Washington Post today contains an article that begins, "The architect Michael Graves has brought a sense of whimsy to the least whimsical of places: a federal courthouse."
Posted at 02:45 PM by Howard Bashman


"Court Nixes Verdict Against Beer Vendor": From New Jersey, The Associated Press provides a report that begins, "An appeals court on Thursday overturned a landmark $105 million verdict against a stadium vendor that sold beer to a drunken fan who later paralyzed a girl in an auto wreck."

You can access at this link today's ruling of the Superior Court of New Jersey, Appellate Division.
Posted at 02:40 PM by Howard Bashman



"Texas Defends New Congressional Map": The Associated Press provides this report.
Posted at 01:38 PM by Howard Bashman


Recognizing "Location Unrecognized": As first noted in this post from yesterday, yesterday's Ninth Circuit ruling in PUC v. FERC provided the location of oral argument as "Panel Location Unrecognized."

Today a reader emails the oral argument calendar for that case, which establishes that "Location Unrecognized" is in fact the Kroc Institute for Peace & Justice at the University of San Diego. And to think, I had my money riding on Area 51.
Posted at 01:33 PM by Howard Bashman



"At issue in this World War II reparations case is whether a suit seeking additional funds for victims of Nazi-era wrongs is justiciable." So begins a lengthy opinion that a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit issued today.

Today's opinion proceeds to explain, "Claimants contend German companies owe 'interest' on their payments to a reparations fund created with the substantial involvement of the United States and German governments to benefit Nazi victims or their descendants. The District Court held the claim presented a nonjusticiable political question. We will reverse and remand."
Posted at 01:05 PM by Howard Bashman



"North Dakota law drastically restricts hunting privileges of nonresidents as compared to North Dakota residents. Some of those restrictions have come under attack in this lawsuit as invalid under the United States Constitution." So begins an opinion that the U.S. Court of Appeals for the Eighth Circuit issued today. Today's opinion later explains that "Minnesota filed this action seeking declaratory judgment and to enjoin these hunting laws to the extent they favor North Dakota residents." The caption of the case is State of Minnesota v. John Hoeven, in his Official Capacity as Governor of the State of North Dakota. Today's opinion affirms the district court's rejection of the claims that Minnesota asserted in the lawsuit.
Posted at 11:45 AM by Howard Bashman


"Working Judge Turns 99": The July 2006 issue of The Third Branch contained an article that begins, "Not every federal judge receives birthday wishes from the President and the Chief Justice of the United States, but Judge Wesley E. Brown is, well, extraordinary. On June 22, he took time from his work in the U.S. District Court for the District of Kansas, to comment about turning 99."

My earlier coverage appears at this link. No word yet on whether the Clerk of the Supreme Court of Alabama has called to congratulate the octogenarian.
Posted at 11:00 AM by Howard Bashman



"A wild pitch on eavesdropping": Law Professor Joseph Thai had this op-ed yesterday in The Boston Globe.
Posted at 10:54 AM by Howard Bashman


"Ex-Bush Aide Makes Plea Deal in Thefts; Claude Allen Might Avoid Jail, Files Show": The Washington Post contains this article today.

The Richmond Times-Dispatch reports today that "Claude Allen expected to plead guilty."

And The Raleigh News & Observer reports that "Allen, Bush's ex-adviser, will plead guilty to theft."

As noted in this earlier Washington Post article, President Bush had nominated Allen to serve on the U.S. Court of Appeals for the Fourth Circuit back in April 2003. The full U.S. Senate, however, never held an up-or-down vote on the nomination.
Posted at 10:44 AM by Howard Bashman



"Senate Committees Hear Guantanamo Testimony": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition."
Posted at 09:20 AM by Howard Bashman


"Top Military Lawyers Oppose Plan for Special Courts": This article appears today in The Washington Post.

The New York Times reports today that "White House Asks Congress to Define War Crimes."

The Los Angeles Times reports that "New Plan Is Proposed for Detainees; The White House offers revised military rules for suspected terrorists' trials; Republican Sens. McCain and Graham remain skeptical."

And USA Today reports that "White House renews push for tribunals."
Posted at 07:25 AM by Howard Bashman



"Evolution Fight Shifts Direction in Kansas Vote": The New York Times contains this article today, along with an editorial entitled "The Evolution of Kansas."
Posted at 07:22 AM by Howard Bashman


"A deal on domestic spying": This editorial appears today in The Chicago Tribune.
Posted at 07:20 AM by Howard Bashman


"Signing statements: It's a president's right." Law Professors Curtis Bradley and Eric Posner have this op-ed today in The Boston Globe.
Posted at 07:18 AM by Howard Bashman


"Padilla case said to lack evidence; A federal judge has expressed doubts about the strength of the government's terror conspiracy case against Jose Padilla and others, ordering prosecutors to provide more evidence of alleged violent activities overseas": This article appears today in The Miami Herald.

The South Florida Sun-Sentinel reports today that "Trial delayed for Padilla, 2 others suspected in al-Qaida case."

And The Associated Press reports that "Judge Delays Padilla Terror Trial."
Posted at 07:05 AM by Howard Bashman



"Fast Ruling Sought in Redistricting Case": The Associated Press provides a report that begins, "With an election just around the corner, a three-judge federal panel was set Thursday to hear arguments about how to redraw southwest Texas congressional districts to restore minority voting power."
Posted at 06:58 AM by Howard Bashman


In today's edition of The Wall Street Journal: An article headlined "Alltel Spoofs Itself in Online Ads, But Not Everyone Gets the Joke" (free access) begins, "In advertisements on hundreds of blogs, visitors are being encouraged to join a lawsuit against Alltel Corp. over a new discount-calling plan from the regional cellphone company." This particular Blogad can now be viewed here at "How Appealing" by simply scrolling to the Blogads box located in the right-hand column of this page.

Today's newspaper also contains an article headlined "Federal Judges May Get Tax Relief on Stock Sales" (free access).
Posted at 06:55 AM by Howard Bashman



"Sack's Sagacity": The New York Sun today contains an editorial that begins, "The New York Times is weighing whether to appeal a decision of the judges who ride the Second United States Circuit that opens the way for a federal prosecutor to get a look at records of the newspaper's phone calls."
Posted at 06:45 AM by Howard Bashman


Wednesday, August 02, 2006

"11th Circuit Remands $400,000 in Sanctions Against Employment Lawyers": law.com provides this report. My earlier coverage appears at this link.
Posted at 11:30 PM by Howard Bashman


"Evolution issue tips board's balance; Election a moderate success": The Lawrence Journal-World contains this article today.

And The Kansas City Star reports today that "Board of Education's balance is shifting; State panel's conservative majority unlikely to retain sway as moderates make gains in the Kansas primary."
Posted at 09:10 PM by Howard Bashman



"Judge's ruling favors school board; Christian band not allowed to play": This article appears today in The Toledo Blade. I have posted online at this link Monday's opinion of the U.S. District Court for the Northern District of Ohio. The "Religion Clause" blog has a post that provides links to the parties' summary judgment briefs.
Posted at 08:55 PM by Howard Bashman


Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained an audio segment entitled "Gay-Marriage Advocates Regroup After Latest Defeat."

And today's broadcast of "Talk of the Nation" contained audio segments entitled "Creationism Proponents Lose Ground in Kansas Primary" and "An Inside Look at Solitary Confinement."

RealPlayer is required to launch these audio segments.
Posted at 08:35 PM by Howard Bashman



"Justice Frees Records in Library Search": The Associated Press provides a report that begins, "Supreme Court Justice Ruth Bader Ginsburg on Wednesday ordered full disclosure of records in a court battle between FBI terrorism investigators and Connecticut librarians."

And at "SCOTUSblog," Lyle Denniston has a post titled "Ginsburg releases library case file."
Posted at 08:29 PM by Howard Bashman



U.S. Court of Appeals for the Fifth Circuit holds that the City of Arlington’s recently enacted Sexually Oriented Business Ordinance is not an unconstitutional restriction on the expressive liberties of businesses that feature topless dancing: You can access today's ruling at this link.
Posted at 08:20 PM by Howard Bashman


No word yet on whether "Location Unrecognized" will be part of the Ninth or Twelfth Circuit following a circuit split: A gimlet-eyed reader emails to note that today's Ninth Circuit ruling in PUC v. FERC states, in the portion of the decision that usually gives the location where the case had been orally argued, "Argued and Submitted April 13, 2005--Panel Location Unrecognized."

Update: Another reader emails to note that in today's Ninth Circuit deep vein thrombosis/Warsaw Convention ruling, written by U.S. District Judge Morrison C. England, Jr. of the Eastern District of California sitting by designation, the authorship of the opinion is attributed to "ENGLAND, Circuit Judge:"
Posted at 07:05 PM by Howard Bashman



"No Way, ABA? American Bar Association's rating of judicial nominee under attack." FoxNews provides this interesting video report featuring Megyn Kendall.

Relatedly, the blog "Confirm Them" offers a post titled "Specter Urges Senate to Reject ABA Report on Wallace."
Posted at 06:58 PM by Howard Bashman



"Holocaust Survivor Loses Bid To Sue Two German Companies": Shannon P. Duffy of The Legal Intelligencer provides a news update (free access) that begins, "A Holocaust survivor who was left sterile after being subjected to medical experiments at the Auschwitz-Birkenau concentration camps has lost his bid to revive a lawsuit against two German companies that he claims cooperated with the Nazi regime."

You can access today's non-precedential ruling of the U.S. Court of Appeals for the Third Circuit at this link. The unanimous two-judge panel (then-Judge Samuel A. Alito, Jr. was the third judge who heard oral argument in the case) holds that the plaintiff's claims against Schering AG and Bayer AG are nonjusticiable under the political question doctrine.
Posted at 05:05 PM by Howard Bashman



"The primary issue in this appeal is whether one who barters drugs for firearms has 'used' the firearms within the meaning of 18 U.S.C. sec. 924(c)(1)(A), which provides for a mandatory five-year sentence for using a firearm 'during and in relation to any . . . drug trafficking crime.'" So begins an opinion that a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit issued today.

The opinion proceeds to explain: "The circuit courts have split rather closely on this question. We hold that bartering drugs for firearms constitutes 'use' of the firearms under sec. 924(c)(1)(A)."
Posted at 04:54 PM by Howard Bashman



"Pfizer could lose billions in Lipitor patent ruling; Patent on world's top-selling drug cut short by 15 months in judge ruling": Reuters provides a report that begins, "A federal appeals court dealt Pfizer Inc. a legal setback Wednesday when it issued a ruling that threatens to cut 15 months from the patent life of its popular cholesterol drug Lipitor, the world's biggest-selling medicine." My earlier coverage appears here.
Posted at 04:30 PM by Howard Bashman


The Associated Press is reporting: David Kravets reports that "Appeals Court Slams Energy Regulators." Today's ruling of the U.S. Court of Appeals for the Ninth Circuit is available at this link, while the court's related press release is here.

In other news, "Gonzales Holds Line on Terror Detainees."

And an article reports that "Settlement Delayed in Indian Trust Case."
Posted at 04:28 PM by Howard Bashman



U.S. Court of Appeals for the Third Circuit rejects two state-created danger claims: One opinion issued today involved a suit against a school district in Pennsylvania and one of the school district's guidance counselors alleging that they could have done more to prevent the death of a sixteen-year-old boy who committed suicide at his home.

A second opinion issued today involved a lawsuit brought by a prison guard and his wife who claimed to have contracted antibiotic-resistant MRSA infections as a result of conditions at the Bucks County, Pennsylvania jail where the guard worked. I represent Bucks County in its pending, yet-to-be argued Third Circuit appeal from a $1.2 million jury award in favor of two pretrial detainees, both of whom contracted antibiotic-resistant staph infections during their confinements at the jail, on their deliberate indifference to serious medical needs-unconstitutional conditions of confinement claims.
Posted at 03:00 PM by Howard Bashman



Supreme Court of Ohio rules that a trial judge committed reversible error when he sought and accepted the assistance of the prosecutor's office in preparing the sentencing opinion that affirmed the jury's recommendation that the defendant receive the death penalty: You can access today's ruling at this link, while a court-issued summary of the decision is here.

In news press coverage, The Associated Press provides a report headlined "Ohio Court Tosses Woman's Death Sentence" that begins, "The Ohio Supreme Court on Wednesday threw out the death sentence of the first woman condemned since the state reinstated capital punishment in 1981."
Posted at 02:44 PM by Howard Bashman



Ninth Circuit holds that an airline's failure to warn a passenger of the possibility of developing Deep Vein Thrombosis during the course of an international flight does not constitute an “accident” under the Warsaw Convention: You can access today's ruling at this link.
Posted at 02:15 PM by Howard Bashman


Federal Circuit issues its ruling in Pfizer, Inc. v. Ranbaxy Laboratories, Ltd.: A patent case concerning the prescription drug Lipitor gives rise to today's ruling.
Posted at 11:45 AM by Howard Bashman


"If W means what he says, he'll pull plug on Wallace": Today in The Houston Chronicle, columnist Cragg Hines has an op-ed that begins, "President Bush has spoken compellingly of late -- in his NAACP speech and as he signed the Voting Rights Act extension -- of his deep belief in equality. For those who greeted this with skepticism, Bush can vividly demonstrate such a commitment by withdrawing the nomination of Michael B. Wallace to the 5th U.S. Circuit Court of Appeals."
Posted at 10:08 AM by Howard Bashman


"This is a contract murder case with irreconcilable jury verdicts leading one defendant to be sentenced to death and another -- the defendant who initiated, contracted for, and paid for the murder -- to be sentenced to life imprisonment." Based on those facts, the majority on a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit today issued an opinion that begins, "We hold that the death sentence in this case violates the Eighth Amendment 'arbitrariness' standard outlined in Furman v. Georgia, 408 U.S. 238 (1972), which prohibits random, disproportionate capital sentences, as well as the proportionality requirement of Enmund v. Florida, 458 U.S. 782 (1982), and the due process, inconsistent verdict prohibition of Morrison v. California, 291 U.S. 82 (1934)."

Senior Circuit Judge Gilbert S. Merritt, whose views toward the death penalty have recently been discussed elsewhere (see here and here), wrote the majority opinion, in which Circuit Judge Karen Nelson Moore joined.

Circuit Judge Ronald Lee Gilman issued a dissenting opinion in which he wrote, "Perhaps some day the Supreme Court will hold that a comparison between the culpability of a murderer and that of his codefendant is constitutionally required, and that inconsistent verdicts arising from separate trials are unconstitutional. But this is not the law of the land today, and was obviously not the 'clearly established law' at the time that the Ohio Supreme Court affirmed Getsy's conviction and sentence in 1999."
Posted at 09:54 AM by Howard Bashman



"Senate approves transfer of cross; Passage unanimous; Bush expected to sign": The San Diego Union-Tribune today contains an article that begins, "The U.S. Senate approved a plan yesterday to transfer land beneath the Mount Soledad cross to the federal government, bolstering supporters who have been fending off efforts to remove the monument for nearly two decades."

And The Los Angeles Times reports today that "U.S. Senate Votes to Acquire Site of Cross."
Posted at 07:28 AM by Howard Bashman



"White House Proposal Would Expand Authority of Military Courts": The Washington Post contains this article today.
Posted at 07:24 AM by Howard Bashman


"Evolution Foes Lose Their Edge on Kansas Board; The state education panel appears to be split 6-4 between supporters of Darwin's theory and advocates of teaching intelligent design": This article appears today in The Los Angeles Times.
Posted at 07:20 AM by Howard Bashman


"N.Y. Times Must Surrender Reporters' Phone Data; Appellate Panel Rejects First Amendment Claim in Federal Grand Jury Probe": Charles Lane has this article today in The Washington Post.

And The New York Sun reports today that "Court Hands New York Times a Setback in Miller Case."
Posted at 07:15 AM by Howard Bashman



"Blogger Jailed After Defying Court Orders": The New York Times contains this article today.

In The Oakland Tribune, Josh Richman reports that "Freelance journalist jailed for refusal to give up video."

In The San Francisco Chronicle, Bob Egelko has articles headlined "Cameraman jailed for not yielding tape; 'Every person ... has to give information to the grand jury if the grand jury wants it,' judge tells S.F. freelancer" and "Freelancer doesn't want mainstream job."

David Kravets of The Associated Press reports that "Journalist jailed in anarchy probe."

And Bloomberg News reports that "Judge Jails San Francisco Man Who Filmed G-8 Street Protest."
Posted at 07:12 AM by Howard Bashman



"Threats to judges -- and their independence -- mount; Court bashing endangers justice, undermines national stability": This editorial appears today in USA Today, which also contains an op-ed by Tom McClusky entitled "Rein in activist judges: An independent judiciary, yes; An unrestrained judiciary, no."
Posted at 07:00 AM by Howard Bashman


"4 ex-Merrill Lynch execs' convictions overturned; 5th Circuit says charges in Enron scheme 'flawed'": The Houston Chronicle today contains this article reporting on a ruling that the U.S. Court of Appeals for the Fifth Circuit issued late yesterday.
Posted at 06:55 AM by Howard Bashman


Tuesday, August 01, 2006

"U.S. Wins Access to Reporter Phone Records": Adam Liptak will have this article Wednesday in The New York Times.
Posted at 10:44 PM by Howard Bashman


Available online from law.com: An article reports that "2nd Circuit Rules New York Times Reporters' Phone Records Not Protected."

In other news, "N.Y. Panel Disbars Attorney for Forging Judge's Name."

The National Law Journal this week contains an article headlined "One Small Typo, Lots of Lawsuits; An error in the Deficit Reduction Act spurs suits on filing fees, Medicare."

In other news, "Law Firms' Trademark Dispute Over 'Foley' Name Is Put on Hold."

And Carla J. Rozycki and David K. Haase have an essay entitled "Supreme Court Eases Standard for Title VII Retaliation Claims."
Posted at 10:42 PM by Howard Bashman



"Government: Detainee cases must start over." Lyle Denniston has this post at "SCOTUSblog" about a supplemental brief that the federal government filed today in the U.S. Court of Appeals for the D.C. Circuit.
Posted at 08:52 PM by Howard Bashman


"The Hidden Function of Honoraria": At "The Volokh Conspiracy," Eugene Volokh has a post that likely will resonate with the spouses of many who receive out-of-town speaking invitations.
Posted at 08:50 PM by Howard Bashman


"Another extraordinary magnum opus from Judge Young": At his "Sentencing Law and Policy" blog, Doug Berman has this post about today's must-read opinion from U.S. District Judge William G. Young of the District of Massachusetts.
Posted at 05:45 PM by Howard Bashman


"'Don't Date Him Girl' Lawsuit Update": Jeralyn Merritt has this post today at "TalkLeft."
Posted at 04:54 PM by Howard Bashman


"If Court Splits, State's 9th Circuit Judges Will Still Face Heavy Load": Lawrence Hurley has this article today in The Daily Journal of California.
Posted at 04:40 PM by Howard Bashman


"Ninth Circuit precedent for judicial reliance on legal weblogs": Kimberly A. Kralowec has this post today at "The UCL Practitioner" blog.

And law.com's "Legal Blog Watch" blog offers a related post titled "Blogs as an Amicus Brief in Action."
Posted at 04:15 PM by Howard Bashman



"Court OK's Look at Times' Phone Records": The Associated Press provides this report.
Posted at 03:45 PM by Howard Bashman


Ninth Circuit rejects challenge to the constitutionality of Religious Land Use and Institutionalized Persons Act of 2000's individual land use assessments provision: The denial of a conditional use permit sought by a non-profit organization dedicated to fostering the teachings and practices of the Sikh religion, in order to construct a temple, on a parcel of land zoned "agricultural" gives rise to today's ruling of the U.S. Court of Appeals for the Ninth Circuit.
Posted at 03:14 PM by Howard Bashman


Divided three-judge Second Circuit panel reverses summary judgment in favor of The New York Times on the newspaper's request for a declaratory judgment holding that phone records of its reporters in the hands of third party telephone providers are shielded from a grand jury subpoena by reporter's privileges protecting the identity of confidential sources arising out of both the common law and the First Amendment: You can access today's majority opinion in The New York Times Co. v. Gonzales at this link, while the dissenting opinion is here.

The majority opinion begins: "After the attacks on the World Trade Center and the Pentagon on September 11, 2001, the federal government launched or intensified investigations into the funding of terrorist activities by organizations raising money in the United States. In the course of those investigations, the government developed a plan to freeze the assets and/or search the premises of two foundations. Two New York Times reporters learned of these plans, and, on the eve of each of the government's actions, called each foundation for comment on the upcoming government freeze and/or searches."
Posted at 03:00 PM by Howard Bashman



"Bench-Clearing Brawl: Judges need to join the fight to save the courts." Bert Brandenburg recently had this essay online at Slate.
Posted at 02:45 PM by Howard Bashman


You can view live, online today's Senate Judiciary Committee hearing for D.C. Circuit nominee Peter D. Keisler: You can access the committee's video feed by clicking here (RealPlayer required). The hearing's agenda is here.
Posted at 02:30 PM by Howard Bashman


"Ninth Circuit Denies Review of Ruling on Anti-Gay Shirt": Metropolitan News-Enterprise provides this report today.
Posted at 12:28 PM by Howard Bashman


At 2 p.m. eastern time today, the Senate Judiciary Committee will hold a confirmation hearing on the nomination of Peter D. Keisler to be United States Circuit Judge for the District of Columbia Circuit: The organization Alliance for Justice yesterday issued a "Preliminary Report on Nomination of Peter D. Keisler to D.C. Circuit."

Last Thursday, all eight Democratic Senators on the Judiciary Committee sent a letter to the committee's chairman asking that today's confirmation hearing be postponed. And the Alliance for Justice, People For the American Way, and various other organizations sent a similar letter yesterday.

Update: By the way, the American Bar Association panel that rates judicial nominees has given this nominee a unanimous "well qualified" rating, the most favorable rating available.
Posted at 11:08 AM by Howard Bashman



"Abortion under siege in Mississippi: Preaching that abortion is as evil as Islam, Nazism and homosexuality, dozens of activists have descended on Jackson, determined to shut down the state's last abortion clinic." Michelle Goldberg has this essay online today at Salon.com.
Posted at 10:58 AM by Howard Bashman


"Panel says lawyer unqualified to be judge; Jackson man nominated for appeals post praised for integrity, criticized for civil rights record": This article appears today in The Clarion-Ledger of Jackson, Mississippi.

And The New York Daily News reports today that "W court pick called a foe of civil rights."

The written testimony of the American Bar Association pertaining to Fifth Circuit nominee Michael B. Wallace can be accessed at this link. Wallace received a unanimous "not-qualified" rating from the ABA panel that evaluates judicial nominees. At National Review Online's "Bench Memos" blog, Ed Whelan offers extensive commentary about the ABA's written testimony (Ed's most recent post on the topic appears here).
Posted at 10:25 AM by Howard Bashman



"Questions give hints in DeLay appeal; 2 judges seem to be leaning to Democrats' stance of not changing ballot": The Houston Chronicle contains this article today.
Posted at 10:18 AM by Howard Bashman


"High court reinstates Fieger reprimand for comments; Lawyer's remarks likening justices to Nazis not protected speech, justices say; appeal likely": This article appears today in The Detroit News.

The Detroit Free Press reports today that "Justices say Fieger spoke wrongly; Vulgarity wasn't allowable, high court rules."

And The Associated Press reports that "Mich. Supreme Court Reprimands Lawyer."

You can access at this link yesterday's 4-3 ruling of the Supreme Court of Michigan.
Posted at 10:14 AM by Howard Bashman



"Keep a Virginian on the bench": Today in The Roanoke Times, Law Professor Carl Tobias has an op-ed which explains that "North Carolina's Sens. Elizabeth Dole and Robert Burr have written Bush urging him to replace Luttig with a jurist from North Carolina."
Posted at 09:57 AM by Howard Bashman


The Associated Press is reporting: Now available online are articles headlined "Administration Appeals Spy Suit Ruling" and "Execution Doctor Defends Record."
Posted at 09:54 AM by Howard Bashman


"Charm Offensive: So far, the new chief justice of the U.S. Supreme Court has gotten raves-from the public, the media, and his own peers." Dahlia Lithwick has this essay in the August 2006 issue of The American Lawyer.
Posted at 09:52 AM by Howard Bashman


"Rehearing on T-shirt is denied": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "Five conservative federal appeals court judges accused their colleagues of promoting censorship Monday after the court refused to reconsider an appeal by a Southern California student barred by his high school from wearing an anti-gay T-shirt to class."

My earlier coverage appears at this link.
Posted at 09:50 AM by Howard Bashman



"'Morning-after' pill reconsidered; FDA says it will take new look at ban on over-counter sales": This article appears today in The Chicago Tribune.

The New York Times reports today that "F.D.A. Shifts View on Morning-After Pill."

The Washington Post reports that "FDA to Reopen Discussions With Plan B Manufacturer."

The Los Angeles Times reports that "Plan B Pill May Be Approaching Wider Release; Over-the-counter sale of the 'morning-after' contraceptive hinges on adult-only access." And an editorial is entitled "New Dawn for Morning After Pill: At long last, the FDA caves to political pressure and signals interest in approving the Plan B pill."

In The New York Sun, Josh Gerstein reports that "Bush May Okay Morning After Pill Without Rx."

And USA Today reports that "'Morning after' pill closer to wider sales; FDA says it's reconsidering over-the-counter Plan B."
Posted at 07:28 AM by Howard Bashman



"Libby Suffered Memory Failure, Lawyers Say": Josh Gerstein has this article today in The New York Sun.
Posted at 07:21 AM by Howard Bashman


"Selective enforcement": The Chicago Tribune today contains an editorial that begins, "When Sen. John McCain (R-Ariz.) proposed a bill banning the 'cruel, inhuman or degrading treatment' of detainees in U.S. custody abroad, President Bush opposed it and Vice President Dick Cheney lobbied unsuccessfully to exempt the CIA."
Posted at 07:20 AM by Howard Bashman


"Federal Court Posts Online Nearly All Evidence From Moussaoui Trial": The Washington Post contains this article today.

And The Richmond Times-Dispatch reports today that "U.S. puts footage from Sept. 11 online."
Posted at 07:05 AM by Howard Bashman



"Evolution's Backers in Kansas Mount a Counterattack": This article appears today in The New York Times.

And The Washington Post reports today that "Election Could Flip Kan. Evolution Stance."
Posted at 06:58 AM by Howard Bashman



"U.S. judge throws out Minnesota video game law; Statute violates free speech, unsupported by research": The St. Paul Pioneer Press today contains an article that begins, "A federal judge on Monday shot down a Minnesota law that would fine youngsters who get their hands on the smuttiest, bloodiest and most violent video games."

And The Minneapolis Star Tribune reports today that "Judge voids new law on video games; The state failed to prove that violent games hurt children, the federal judge's ruling said."

My earlier coverage appears at this link.
Posted at 06:54 AM by Howard Bashman



"Authorship gets lost on Web; Some bloggers don't give credit where it's due": This article appears today in USA Today.
Posted at 06:50 AM by Howard Bashman


"Playing With Fire: The Administration's Draft Bill on Detainees Would Violate the Geneva Conventions and Thereby Put Americans at Risk." Michael C. Dorf has this essay online at FindLaw.
Posted at 06:45 AM by Howard Bashman



From the Law.com Newswire:


Click to open links in new
     windows

Advertise on Legal Blogs

Related Blogs

20 Questions for the
 Appellate Judge


How Appealing Extra

My Appellate Columns
Especially Appealing Blogs

Above the Law

ACSBlog

Adam Smith, Esq.

Althouse

Bag and Baggage

Balkinization

The Becker-Posner Blog

Bench Memos

The BLT: The Blog of Legal Times

Concurring Opinions

Confirm Them

Decision of the Day

de novo

Discriminations

Dorf on Law

Election Law

Eminent Domain

Ernie the Attorney

InstaPundit.Com

INTEL DUMP

Jack Bog's Blog

JD2B.com

Jeremy Blachman's Brand New Weblog

LawBeat

Legalities

Legal Theory

Notes from the (Legal) Underground

PrawfsBlawg

Professor Bainbridge.com

Religion Clause

SCOTUSblog

Sentencing Law and Policy

TalkLeft: The Politics of Crime

TaxProf Blog

Throwing Things

tonypierce.com + busblog

The Volokh Conspiracy

Wonkette

Workplace Prof Blog

WSJ.com's Law Blog

Other Links

abcNEWS.com's The Note

The Associated Press Newswire

Best of the Web Today

The Corner

Daypop Top 40

McSweeney's Internet Tendency

Movie Review Query Engine

Obscure Store & Reading Room

The Onion

Overlawyered.com

PointofLaw.com

Salon

Slate

Tapped

Even More Blogs

The 10b-5 Daily

Abstract Appeal

The Agitator

Alas, a blog

ambivalent imbroglio

American RealPolitik

Amygdala

Andrew Raff

Andrew Sinclair

AndrewSullivan.com

Anonymous Lawyer

The Anti-Idiotarian Rottweiler

Appellate Law & Practice

Asymmetrical Information

AtlanticBlog

Attempted Survival

Balloon Juice

The Baseball Crank

Beautiful Confusion

Begging The Question

Begging to Differ

Behind the Homefront

Benefitsblog

BenMaller.com

beSpacific

Betsy's Page

Big Picnic

bIPlog

The Bitch Girls

the bitter shack of resentment

The Bleat

Blithering Idiot

The Blog from the Core

Blonde Justice

Blue Mass. Group

Body and Soul

Boing Boing

Braves Journal

Brendan O'Neill

Brian Peterson's Legal Weblog

Brothers Judd Blog

The Buck Stops Here

BuffaloWings&Vodka

Cacciaguida

Calblog

California Insider

Captain Indignant's Fortress of Peevishness

Chicago Boyz

Civil Liberties Watch

Class Maledictorian

Clayton Cramer's BLOG

a clever sheep

ColbyCosh.com

The Comedian

Common Sense and Wonder

Conglomerate

CONTENT / v.3

Copyfight: The politics of IP

Corp Law Blog

Corsair the Rational Pirate

crabwalk.com

Criminal Appeal

CrimLaw

Critical Mass

Crooked Timber

Croooow Blog

Current copyright readings

cut on the bias

DailyPundit.com

Daimnation!

Daniel W. Drezner

Dave Copeland

Deadly Mantis

Dean's World

death by committee

Delaware Law Office

Disputation

The Doc Searls Weblog

Doxagora

Dr. Weevil

Dubyanell Feds

easily distracted

effinchamp

eLawyer Blog

Electrolite

EmoryLaw Student.com: Adam

Eric's Weblog

Eve Tushnet.com

excited utterances

explodedlibrary.info

FalconRed goes to Law School

Final Protective Fire

the fog of warre

for the sake of clarity

Fourth Amendment.com

Froggi's update

Frothing at the Mouth

FurdLog

Gawker

GeekPress

Geodog's MT Weblog

George's Employment Blawg

Gideon's Blog

Grant M Henninger

GreenGourd's Garden

GrepLaw

grrrl meets world

Half the Sins of Mankind

Heh. Indeed.

Hit & Run

HobbsOnline

Hoplites

Hose Monster Blog

HowardOwens.com

Howling Point

HughHewitt.com

Ichiblog

The Importance Of

inappropriate response

Inchoate

In Context

The Indiana Law Blog

infoAnarchy

Insolvent Republic Of Blogistan

Inter Alia

Interrobang

Ipse Dixit

IsThatLegal?

Jens 'n' Frens

Jewish Buddha

Jim Dedman

Joanne Jacobs.com

Joe Gratz's blog

John Scalzi's Whatever

joyfulchristian

Jumping To Conclusions

Kausfiles

Ken Layne

Kieran Healy's Weblog

The Kitchen Cabinet

KittySays

Kiwi Pundit

Kyle Still Free Press

l8r

Law Dork

LawMeme

Lawrence Lessig

Law School UNconfidential

LawSites

Legal Fiction

Legal Ramblings

The Legal Reader

The Leiter Reports: Editorials, News, Updates

Letters of Marque

Lex Communis

Life, Law, Libido

The Light of Reason

The Lincoln Plawg

little green footballs

Log -- David Chess

Lonestar Expat

Lonewacko

Lucpher.com

The Manifest Border

Mansfield Fox

Man Without Qualities

Mark A.R. Kleiman

Marstonalia

Matthew Yglesias

MaxSpeak Weblog

MC Estoppel

Media Dragon

Mellow-Drama

Mercurial

Michael J. Totten

Mirthful Ones

moxie.nu | blog

ms. morality

MyFreePress.com

Natalie Solent

NathanNewman.org

Neal Pollack's The Maelstrom

Nerdlaw.org

The Neutral Zone Trap

nikita demosthenes

Ninomania

No Left Turns

Notes from the (1L) Underground

No Watermelons Allowed

Nuts and Boalts

Off the Kuff

Off the Pine

Oliver Willis

One Fine Jay

One Maven

Open Book

OrinKerr.com

Oscar Jr. Was Here

Outside the Beltway

Overpundit

Overtaken by Events

OxBlog

Oy Vey!

Paper Chase

Parkway Rest Stop

Pathetic Earthlings

Patio Pundit

Patterico's Pontifications

Paul's Boutique

The Perpetual Three-Dot Column

Phillip Coons

PhotoDude.com

PIKER

Political Animal

Political Parrhesia

Political State Report

Power Line

Prince Roy's Realm

Public Defender Dude

Q Daily News

Quare

rabbit blog

Rachel Lucas

Rain Man 2

Random Jottings

Rantophilia

The Rattler

rc3.org

RealityChecker.org

Reason & Liberty

Refference

Regions of Mind

The Remedy

Res Ipsa Loquitur

RiShawn Biddle's The Usual Suspect

The Rittenhouse Review

Robert Fortuno's Weblog

Roger's View

Rory Perry's Weblog

Running With Lawyers

Samizdata.net

Sarah Eve Kelly

Sarah Lai Stirland

sasnaK

A Sassy Lawyer in Philippine Suburbia

Scoobie Davis Online

ScrappleFace

Scripting News

sean.harding

Second Opinions

Second p0st

The Securities Law Beacon

Seeking for Righteousness

Semi-Daily Journal

The Shout

Shouting 'Cross the Potomac

Silflay Hraka

Simone Koo

skippy the bush kangaroo

The Slithery D

Snark Attack

SnarkSpot

Sneaking Suspicions

The Sound And Fury

South Dakota Politics

The Spoons Experience

Sporadic Thoughts

SteveSachs

Stop the Bleating!

sugarmama

Sugar, Mr. Poon?

Sugarpoet.com

superficial intelligence

Supreme Court Blog

Susan Crawford blog

SW Virginia law blog

Taegan Goddard's
Political Wire


taiwanon.com

the talking dog

Talking Points Memo

TarheelPundit

TBOGG

Tech Law Advisor

Terebi II

Texas Law Blog

that abby girl's journal

That Broken Girl

That's News To Me

The Third Branch

Tierney's WeblAG

Tim Blair

Tom Tomorrow

The Trademark Blog

Troppo Armadillo

trr

The Truth Laid Bear

Tutissima Cassis

uggabugga

unbillable hours

UnivAtty

Unlearned Hand

Unqualified Offerings

Uppity-Negro.com

urban nomad

U.S. Supreme Court Blog

UXblog

vigilant.tv

The Ville

Votelaw

vpostrel.com

Waddling Thunder

walterindenver

WampumBlog

WarLiberal.com

The Week in Review

William Burton

Will Work for Favorable Dicta

The Wired GC

WOIFM

Woman of the law

Xrlq's Blog

A Yank in Oz

The Yin Blog

Yourish.com

zonitics.com

#!/usr/bin/geek