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Monday, November 06, 2006 Available online from law.com: Marcia Coyle reports that "Abortion Cases Pit Justices vs. Congress; Legislative fact-finding is at issue; Justice Kennedy will be pivotal figure." And in news from New Jersey, "MADD Seeks to Revive $105M Dram Shop Verdict Against Stadium Vendors." Also available today from National Review Online: Law Professor Douglas W. Kmiec has an essay entitled "Same-Sex Marriage Is Not for Judges: People's decision." And Curt Levey has an essay entitled "Not Too Keen on Activist Judges? A vote for Bob Menendez is a vote for judicial activism." "Death penalty gets tighter scrutiny in China; A review of cases by China's Supreme Court may reduce the potential for wrongful convictions": This article will appear Tuesday in The Christian Science Monitor. Posted at 06:05 PM by Howard Bashman "Contingent Judicial Vacancies and the Appointments Clause": Matthew Madden has posted this interesting law review note (abstract with links for download) online at SSRN (via "Legal Theory Blog"). The note's abstract begins, "Justice O'Connor, like a handful of justices before her, retired from the bench contingent upon Senate confirmation of her successor. The President nominated three individuals to her seat and the Senate proceeded to provide its advice and consent to the appointment of then-Judge Samuel Alito. All the while, O'Connor continued to serve on the Court, vote in pending cases, and write opinions. This Note argues that such nominations and confirmations are constitutionally inappropriate while a predecessor has not actually departed the federal bench." "All eyes on Roberts court as it takes on abortion": Bill Mears of CNN.com provides this report. A related CNN video segment can be accessed by clicking here. Posted at 05:05 PM by Howard Bashman "Election Litigation Threat Level: Orange." Law Professor Rick Hasen has this post at his "Election Law" blog. Posted at 04:30 PM by Howard Bashman "S.D. Doctors Are Split Over Abortion Ban": The Associated Press provides this report. Posted at 03:45 PM by Howard Bashman Access online today's same-day U.S. Supreme Court oral argument transcripts: The oral argument transcripts in Marrama v. Citizens Bank of Mass. and Wallace v. Kato are now available. The outset of the oral argument transcript in Marrama suggests that the Court may end up dismissing that case as improvidently granted. The Associated Press is reporting: Now available online are articles headlined "Iraq Court to Rule on Saddam Verdict" and "Abortion Clinics Request O'Reilly Probe." Posted at 03:12 PM by Howard Bashman "The Five-Fifths Clause: How we count, and use, our prisoners." Andrew Marantz has this jurisprudence essay online at Slate. Posted at 03:02 PM by Howard Bashman "N.J. poll: Don't call gay unions 'marriage'; Half OK equal rights, but name is sore spot." The Newark Star-Ledger today contains an article that begins, "Half of New Jersey's registered voters agree gay couples are entitled to the same rights as heterosexuals, but they balk at calling it marriage, according to a Star-Ledger poll. Fifty percent of those polled agreed with the recent state Supreme Court decision that same-sex couples are entitled to all the protections state law gives married couples. But overall, only one in four agreed that it should be called marriage, the poll found." Posted at 02:35 PM by Howard Bashman The Associated Press is reporting: Now available online are articles headlined "Supreme Court Weighs Man's Delayed Suit"; "Supreme Court Won't Return Death Penalty"; and "Court Hears of American's Iraq Sentence." Posted at 02:30 PM by Howard Bashman "On Monday, December 18, 2006, the Eighth Circuit will begin implementing the appellate version of CM/ECF, the federal courts' electronic filing and noticing system." Electronic case filing, which already pervades the U.S. District Court system, is about to begin at the federal appellate level. The U.S. Court of Appeals for the Eighth Circuit may be at the forefront, but before long electronic case filing on appeal will be the standard across the nation. For a glimpse of how life is about to change for those of us who litigate appeals in federal court, please see this notice that the Eighth Circuit has just posted online. The Eighth Circuit's notice delivers at least one sad bit of news: "Effective December 18, 2006, links to the full text of [appellate] briefs will only be available through the PACER system." The notice proceeds to state: Briefs are subject to the $.08 per page charge imposed by PACER, but the total charge for any document may not exceed $2.40. As a result, no brief, regardless of its length, will ever cost more than $2.40 to download or print. Casual users of PACER should note that PACER does not bill if a user's charges are less than $10.00 in a calendar year. This effectively gives a casual PACER user access to four free briefs a year.The quoted passage implies that unbilled PACER charges are reset to $0 each year. I question whether that is correct. If it is not correct, casual users would merely have access to four free appellate briefs per PACER account, not per year, and this assumes that the PACER account wasn't used for any purpose other than to view appellate briefs. Update: On the question of free access if PACER charges fail to equal or exceed $10 per year, the PACER service center's own Fee Information Policy is ambiguous. The policy states that "Usage is billed on a quarterly basis. Pursuant to Judicial Conference policy, no account is billed for usage of less than $10 in a calendar year. As a result, the quarterly billing of accounts that have a balance of less than $10 is deferred until the balance owed surpasses this threshold." And a bit later, the policy reiterates that "Each quarter accounts with a balance due less than $10 will be deferred to the following quarter." Available today from National Review Online: Byron York has an essay entitled "Senate 2006: Why Hasn't the GOP Made Judges an Issue?" Clarke D. Forsythe has an essay entitled "The Supreme Court's Back Alley: Scientific evidence does not show that D&X is a safe and necessary procedure." And Michael J. New has an essay entitled "Seizing the Initiative: Pro-life measures on state ballots." "Abortion foes' dirty tactics: Advocates of a California 'parental notification' bill accuse Planned Parenthood of protecting sexual predators instead of teen girls; But who is really breaking the law?" Katharine Mieszkowski has this essay online at Salon.com. Posted at 11:28 AM by Howard Bashman "Porn on Trial: The ACLU battles the Justice Department over the Child Online Protection Act; But web porn isn't going anywhere." Kerry Howley has this essay online at Reason. The essay notes that Nerve.com has a blog titled "Live from the COPA trial" covering the proceedings. Posted at 11:20 AM by Howard Bashman "Full Court Press: Can Karl Rove have his media critics jailed?" Law Professor Jeffrey Rosen has this essay in the November 13, 2006 issue of The New Republic. Posted at 11:14 AM by Howard Bashman "Writer defends stories on judge; Columnist denies bias and threat accusation": The Chicago Tribune last Friday published an article that begins, "A newspaper writer disputed Thursday allegations of carelessness and bias in an Illinois Supreme Court chief justice's defamation suit but found himself fighting a new accusation that he threatened to 'ruin' an official with a state agency involved in an attorney discipline case." The Courier News of suburban Chicago reported on Friday that "Writer says he trusted sources." And The Daily Herald of Arlington Heights, Illinois reported on Friday that "Writer backs sources." "Federal Judicial Supremacy on the Ballot": Yesterday, The Pocket Part of The Yale Law Journal posted online this essay by Jaynie Randall. Posted at 10:48 AM by Howard Bashman "Court asks for advice on medical devices cases": At "SCOTUSblog," Lyle Denniston has this early post reporting on today's U.S. Supreme Court Order List. You can access today's Order List at this link. No new grants of review issued today. "High-Five!" It's more than just Borat's signature exclamation. Apparently it's also what Justices on the U.S. Supreme Court recently exchanged with the Phillie Phanatic at a gathering to honor the Court's newest Justice, Samuel A. Alito, Jr. (see second item in Dan Gross's column published today in The Philadelphia Daily News). Posted at 09:58 AM by Howard Bashman "Blawg Review #82": Available here, at "Votelaw." Next week's installment, meanwhile, will be hosted at Rick Hasen's "Election Law" blog, Am I sensing a theme here? "State ballot measures challenge judges' power": Bill Mears of CNN.com provides this report. Posted at 08:25 AM by Howard Bashman "Examining the 'Predictive' Model of Judging": That's the headline of today's installment of my "On Appeal" column for law.com. Therein, I address "To what extent does the job of U.S. Court of Appeals judge, when properly performed, require those judges to implement their views of the law, as opposed to merely predicting how the applicable court of last resort would decide the issues presented in the case?" Posted at 08:20 AM by Howard Bashman "'Partial-birth abortion' ban goes to high court; Justices to hear 2 challenges to '03 law": The Chicago Tribune contains this article today. Posted at 08:20 AM by Howard Bashman "Affirmative action in Michigan": This editorial appears today in The Chicago Tribune. Posted at 08:17 AM by Howard Bashman "Don't abort precedence: The Supreme Court has already ruled that abortion restrictions without exceptions for women's health are unconstitutional; It should do so again." The Los Angeles Times today contains this editorial. Perhaps the editorial's headline would be more accurate had it used "precedent" rather than "precedence." Posted at 08:10 AM by Howard Bashman "A narrow ruling cuts a broad legal swath; Agencies are barring the public from hearings after the state high court's decision in a deputy misconduct case": This article appears today in The Los Angeles Times. Posted at 08:07 AM by Howard Bashman "In Kentucky Supreme Court Race, Judges Get Out Their Soapboxes; Rick Johnson will say whatever he needs to in order to be elected to the state's highest court; The problem is, he's a judge": T.R. Goldman has this article (free access) in today's issue of Legal Times. Posted at 08:04 AM by Howard Bashman "A Half-Step Toward Equality: New Jersey's Supreme Court decision remedied the inaction of the state legislature." This editorial appears today in The Harvard Crimson. Posted at 08:00 AM by Howard Bashman "A Powerful Voice in Patent Disputes": Charles Lane has this "Full Court Press" column today in The Washington Post. Posted at 07:54 AM by Howard Bashman "Supreme Court to Hear False Arrest Case": The Associated Press provides this report. Posted at 07:40 AM by Howard Bashman "Do the Rights of the Disabled Extend to the Blind on the Web?" The New York Times today contains this e-commerce report. My earlier coverage appears at this link. "Hussein Is Sentenced to Death by Hanging": This article appears today in The New York Times, along with an article headlined "Hussein Trial Was Flawed but Reasonably Fair, and Verdict Was Justified, Legal Experts Say." And an editorial is entitled "The Saddam Hussein Verdict." The Washington Post today contains a front page article headlined "Hussein Sentenced To Death By Hanging; Iraqi Reactions Highlight Ethnic, Religious Divides, Portending More Violence." The newspaper also contains an editorial entitled "Verdict for Saddam Hussein: Like the new political order around it, the trial was messy, costly and divisive -- but the judgment is just." And The Chicago Tribune reports that "Hussein sentenced to hang; Leaders praise verdict as Iraqis brace for strife." In addition, the newspaper contains an editorial entitled "Saddam Hussein: Guilty." "In a Brief, Unsigned New Opinion, The Supreme Court Sends the Wrong Signal on Voter ID and Voter Fraud": Michael C. Dorf has this essay online at FindLaw. Posted at 06:35 AM by Howard Bashman  
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