How Appealing

Wednesday, October 4, 2006

"Missing the Forest for a Tree: Unpublished Opinions and New Federal Rule of Appellate Procedure 32.1." Scott E. Gant has this article in the current issue of Boston College Law Review.

The article echoes a point that I too have advanced (see the second to last paragraph of my "Upon Further Review" essay published in The Legal Intelligencer in January 2002) : namely, that determining whether a given opinion creates precedent is a decision best made in hindsight, rather than when an appellate opinion is issued.
Posted at 08:45 PM by Howard Bashman



"Bonds' Trainer May Get Out of Prison": David Kravets of The Associated Press provides a report that begins, "A federal appeals court has ordered Barry Bonds' personal trainer to be released from prison Thursday unless a lower court again holds him in contempt for refusing to testify before a grand jury investigating the Giants slugger for perjury."

You can access at this link today's order of the U.S. Court of Appeals for the Ninth Circuit.
Posted at 06:05 PM by Howard Bashman



Eleventh Circuit upholds federal criminal conviction based on spoken obscenities: The other day, at "The Volokh Conspiracy," Eugene Volokh had a post titled "Text as Obscenity" in which he wrote, "Obscenity prosecutions based on text are very rare, but they are in theory permissible under the 'describes' aspect of the famous Miller v. California obscenity test."

Proving Eugene's point, today a unanimous three-judge Eleventh Circuit panel issued an opinion upholding a federal criminal conviction for obscene comments communicated over the telephone, finding that "[t]he average person today would view [defendant's] phone calls, taken as a whole, as appealing to the prurient interest and conclude that he described sexual activities in a patently offensive way." The opinion reproduces the offending language in exacting detail, so those who aren't interested in viewing textual obscenities shouldn't click here.
Posted at 05:30 PM by Howard Bashman



"Topping 2006 ballots: eminent domain; In November, 12 states have initiatives on the ballot that seek to protect private property against seizure and regulation." Thursday's edition of The Christian Science Monitor will contain an article that begins, "A backlash among voters this November against an unpopular Supreme Court decision on eminent domain could dramatically curtail the ability of officials to manage growth and development in parts of the western United States."
Posted at 05:04 PM by Howard Bashman


"Privacy Group Files Suit Against FBI": The AP provides a report that begins, "A privacy-advocacy group is suing the U.S. government for records concerning electronic-surveillance tools such as one that appears to be a successor to the FBI's abandoned Carnivore program."

You can access at this link the complaint for injunctive relief that Electronic Frontier Foundation filed yesterday in the U.S. District Court for the District of Columbia. EFF yesterday also issued a news release entitled "EFF Sues for Information on Electronic Surveillance Systems."
Posted at 05:02 PM by Howard Bashman



"Surveillance Program to Continue for Now": The Associated Press provides a report that begins, "The Bush administration is allowed to continue its warrantless surveillance program while it appeals a judge's ruling that the program is unconstitutional, a federal appeals court ruled Wednesday."

You can access today's order of the U.S. Court of Appeals for the Sixth Circuit at this link.
Posted at 04:02 PM by Howard Bashman



Access online today's U.S. Supreme Court oral argument transcript in MedImmune, Inc. v. Genentech, Inc., No. 05-608: It is available at this link.

Update: And now today's oral argument transcript in BP America Production Co. v. Burton, No. 05-669, can be accessed here.
Posted at 02:34 PM by Howard Bashman



"'Neither Force Nor Will, But Merely Judgment'": Today in The Wall Street Journal, Eleventh Circuit Judge William H. Pryor, Jr. has an op-ed (free access) that begins, "Recently some leaders of the bench and bar -- including, on this page last week, retired Justice Sandra Day O'Connor -- have decried what they describe as unprecedented threats to the independence of the judiciary. I respectfully disagree."

Justice O'Connor's Wall Street Journal op-ed from last week is now freely available at this link.
Posted at 02:08 PM by Howard Bashman



"'I don't believe I will ever see him executed'; 25 years after man sentenced to death for murdering Lodian, Supreme Court hears his case": The Lodi News-Sentinel today contains an article that begins, "The nation's highest court on Tuesday took up the murder case in which Lodi High School graduate Steacy McConnell was beaten to death in her Victor home during a botched burglary."

The transcript of yesterday's oral argument before the U.S. Supreme Court can be accessed here.
Posted at 11:05 AM by Howard Bashman



Today's ruling in the case I argued last month before a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit: You can access the ruling at this link.

The blog "Decision of the Day" provides this summary of the ruling.
Posted at 10:40 AM by Howard Bashman



"Judge permits lawsuit on Patriot Act to go on": This article appears today in The Detroit Free Press.

And The Associated Press provides a report headlined "Judge: Patriot Act Challenge Can Proceed."

I have posted online at this link last Friday's ruling of the U.S. District Court for the Eastern District of Michigan.
Posted at 09:55 AM by Howard Bashman



On today's broadcast of NPR's "Morning Edition": The broadcast contained audio segments entitled "Yoo Defends Detainee Measures as 'Rules of War'"; "Detainees Ready for Release Have no Place to Go"; "Prisons Failing in Oversight of Dangerous Inmates"; "Labor Board Decision May Slash Union Roles"; and "Legality of Foley Actions Not Clear Cut." RealPlayer is required to launch these audio segments.
Posted at 09:44 AM by Howard Bashman


Today's U.S. Supreme Court oral arguments: Two cases are scheduled to be argued today before the Court. Here's my summary of those cases from my law.com essay headlined "A Look Ahead to First Oral Arguments of New Supreme Court Term":
On Oct. 4, the Supreme Court will begin its day by hearing oral argument in the patent law case of MedImmune, Inc. v. Genentech, Inc. The case presents the interesting question of whether a patent licensee must refuse to pay royalties and commit a breach of the license agreement before suing to declare the patent invalid, unenforceable or not infringed. The Federal Circuit ruled that no "case of actual controversy" existed under the Declaratory Judgment Act for MedImmune to sue Genentech to challenge the patent or its infringement in the absence of a license so long as MedImmune complies with the terms of its license agreement with Genentech.

The second case scheduled for oral argument on Oct. 4 is BP America Production Co. v. Watson. The case involves a dispute between BP America and the federal government over whether the federal government's administrative order demanding payment under the federal Mineral Leasing Act was timely. The D.C. Circuit, in an opinion by then-Circuit Judge John G. Roberts Jr., ruled that the federal government's demand for payment was timely. Both Chief Justice Roberts and Justice Stephen G. Breyer recused themselves from the order granting certiorari, so it appears that only seven justices will participate in the consideration and decision of this case.

Demand for same-day transcripts of these oral arguments will surely be be at an all-time high.
Posted at 08:27 AM by Howard Bashman


"Screening of Mail at Federal Prisons Lags; Terrorists Were Able to Send Letters to Sympathizers Overseas, Report Says": This article appears today in The Washington Post.

The Washington Times reports today that "Terror inmates' mail unread."

And USA Today reports that "Justice review of prisons calls for closer look at inmate communications."

You can access the report of the Office of the Inspector General of the U.S. Department of Justice by clicking here.
Posted at 08:20 AM by Howard Bashman



"Law sought on explosive fertilizer; No federal limits on compound's sale": USA Today contains this article today.
Posted at 08:17 AM by Howard Bashman


"Some Workers Change Collars; NLRB Rules Some Nurses Are Supervisors, a Potential Blow to Unions": This article appears today in The Washington Post.

And The Los Angeles Times reports today that "U.S. Ruling Could Eliminate Union Eligibility for Millions."
Posted at 08:15 AM by Howard Bashman



"LAPD Arrests Skid Row Campers": The Los Angeles Times today contains an article which reports that "Catherine Lhamon, racial justice director of the ACLU of Southern California, questioned whether the arrests made Tuesday are allowed under an April federal appeals court ruling that struck down the city's ban on people sleeping on streets and sidewalks. The court, siding with the ACLU, ruled it was cruel and usual punishment to arrest homeless people for sleeping when the city could not provide enough shelter beds for them."

My earlier law.com essay on this subject was headlined "Arresting the Homeless Is Unconstitutional? Where the 9th Circuit Went Wrong."
Posted at 08:10 AM by Howard Bashman



"Immigration views play role in jury selection; Almost half in the pool say status of truck driver would cause bias in federal retrial": Harvey Rice has this article today in The Houston Chronicle.
Posted at 08:02 AM by Howard Bashman


"Man Sues Secret Service Agent Over Arrest After Approaching Cheney and Denouncing War": This article appears today in The New York Times.

The Rocky Mountain News reports today that "Man files suit over Cheney encounter; Golden resident was cuffed, jailed after comment to VP in Beaver Creek encounter."

And The Denver Post reports that "Cheney critic sues agent over arrest."
Posted at 08:00 AM by Howard Bashman



"Justices close Megan's Law loophole; State's top court rules an offender not sexually motivated must be included anyway": The Newark (N.J.) Star-Ledger today contains an article that begins, "A Warren County teenager who, at age 12, was caught 'playing doctor' with his 6-year-old half-brother must register as a sex offender under Megan's Law, the state Supreme Court ruled yesterday."

And The New York Times reports today that "Court Upholds Juvenile Registration as Sex Offender."

You can access yesterday's ruling of the Supreme Court of New Jersey at this link.
Posted at 07:50 AM by Howard Bashman



"Justices Ponder Conditions for Automatic Deportation": Linda Greenhouse has this article today in The New York Times.

Today in The Los Angeles Times, David G. Savage reports that "Supreme Court Considers Drug-Crime Deportations; Justices hear examples of legal immigrants ousted for state felonies deemed minor under federal law."

Charles Lane of The Washington Post reports that "Justices Hear Case on Immigrant Drug Offenders; Clarity Sought on Deportation Provision."

In USA Today, Joan Biskupic reports that "Justices open term, hear case about drugs, deportation."

The San Francisco Chronicle reports that "High court gets immigrant drug cases; At issue: mandatory deportation of legal residents of U.S."

Bill Mears of CNN.com reports that "Scalia's tequila remark launches new term."

And law.com's Tony Mauro reports that "Scalia's 'Tequila' Remark Raises Eyebrows During Immigrants' Rights Argument."
Posted at 07:40 AM by Howard Bashman



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