How Appealing

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Conference of the United States and the U.S. Supreme Court, only requires federal appellate courts to allow citation to unpublished and non-precedential federal judicial opinions issued on or after January 1, 2007.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The Tenth Circuit is currently a jurisdiction that permits, but discourages, citations to its own non-precedential rulings.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useful if the new Tenth Circuit local rule addressed whether that discouragement will continue to apply to that court's non-precedential opinions issued before January 1, 2007.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


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