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Monday, November 27, 2006 "Court Clears Way for Prosecutor to Review Records in Times Case": Adam Liptak will have this article Tuesday in The New York Times. And Tuesday's edition of The Washington Post will report that "Court Won't Hear Case on Reporters' Phone Records." "Justice Dept. to Examine Its Use of NSA Wiretaps; Review Won't Address Program's Legality": This article will appear Tuesday in The Washington Post. The New York Times on Tuesday will report that "Justice Official Opens Spying Inquiry." And McClatchy Newspapers report that "Justice Department begins internal review of spying program." "Top US court skeptical of telecom antitrust case": Reuters provides this report. Posted at 10:50 PM by Howard Bashman "Case Heats Up Global Warming Debate; Supreme Court Showdown Over EPA Regulation Of Greenhouse Gases May End Up In Congress": CBS News legal analyst Andrew Cohen has this essay today. Posted at 10:48 PM by Howard Bashman "EEOC Seeks to Block Sidley Discovery Bid in Former Partners' Age Discrimination Case": law.com provides this report. Posted at 10:44 PM by Howard Bashman For fans of Federal Rule of Civil Procedure 8's "short and plain statement" rule of pleading: It's not every day that the U.S. Supreme Court has occasion to hold an oral argument focusing on just how concise is too concise when it comes to pleading a valid cause of action in federal court. But today was such a day. Fans of FRCP 8 (and of Seventh Circuit decisions applying the rule; see this decision, for example) will certainly enjoy reading the transcript of today's oral argument in Bell Atlantic v. Twombly, No. 05-1126. During oral argument, Form 9 of the FRCP's Appendix of Forms is mentioned. You can access Form 9 online at this link. Update: Apropos of my law.com essay from May 2006 headlined "Scalia-Alito Is the New O'Connor-Ginsburg," it is interesting to note that on page 7 of today's oral argument transcript, attorney Michael Kellogg refers to Justice Ginsburg as "Justice O'Connor" before correcting himself. "Justices Rebuff New York Times on Leak Inquiry": Adam Liptak of The New York Times provides this news update. Posted at 08:05 PM by Howard Bashman The Associated Press is reporting: Now available online are articles headlined "Justice Department Eyes Spy Program"; "N.J. Bill: Rights for Gays, Siblings"; and "Maryland Court to Launch Webcasting Plan." Posted at 07:40 PM by Howard Bashman "As globe warms, can states force the EPA to act? The agency argues that climate change requires a global solution, not federal regulations; The Supreme Court weighs in this week." Warren Richey will have this article Tuesday in The Christian Science Monitor. Posted at 05:54 PM by Howard Bashman Second Circuit refuses civil contemnor's request for freedom to end nearly seven years of coercive civil contempt confinement: Martin A. Armstrong will remain behind bars, but today's ruling orders the case reassigned to a randomly-selected replacement U.S. District Judge, so that "a fresh look by a different pair of eyes" can evaluate whether continued confinement is appropriate. Posted at 05:00 PM by Howard Bashman Access online the transcripts of today's oral arguments in the U.S. Supreme Court: Now available online are the transcripts of oral argument in Bell Atlantic v. Twombly, No. 05-1126, and Ledbetter v. Goodyear Tire & Rubber Co., No. 05-1074. Posted at 03:35 PM by Howard Bashman The Associated Press is reporting: Now available online are articles headlined "Court Rejects N.Y. Times on Leak Probe" and "Court to Release Audiotapes of Arguments." Posted at 03:28 PM by Howard Bashman "Marketplace: Philip Morris Dodges a Bullet." This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Day to Day." Posted at 03:10 PM by Howard Bashman The final chapter in DuPont's Benlate litigation? A unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit today issued an opinion affirming the entry of summary judgment against a consortium of Florida farmers, plant nurseries, and corporations who sued DuPont alleging fraudulent inducement to settle, spoilation, and racketeering. Today's ruling also affirms the entry of summary judgment against DuPont on its claim alleging that the plaintiffs' lawsuit giving rise to this appeal constituted a breach of the settlement agreement into which the parties had previously entered. Posted at 02:55 PM by Howard Bashman "Court to release audiotapes of school cases": At "SCOTUSblog," Lyle Denniston has a post that begins, "The Supreme Court will release on a same-day basis the audiotapes of the oral arguments next Monday, Dec. 4, in the two cases on the use of race in assignment of students to public schools." Posted at 02:42 PM by Howard Bashman Seventh Circuit affirms permanent injunction blocking enforcement of the Illinois Sexually Explicit Video Game Law: In a decision issued today, a unanimous three-judge panel concludes that "the SEVGL is overbroad, it is not narrowly tailored, and it cannot survive strict scrutiny." Today's Seventh Circuit ruling states: "Because the SEVGL potentially criminalizes the sale of any game that features exposed breasts, without concern for the game considered in its entirety or for the game's social value for minors, distribution of God of War is potentially illegal, in spite of the fact that the game tracks the Homeric epics in content and theme. As we have suggested in the past, there is serious reason to believe that a statute sweeps too broadly when it prohibits a game that is essentially an interactive, digital version of the Odyssey." The trial court's earlier ruling in the case, granting a permanent injunction against the law's enforcement, can be accessed here. For others who may wish to link directly to today's Seventh Circuit ruling, I recently offered instructions detailing how to avoid the unique difficulties inherent in linking to Seventh Circuit decisions. "Court denies Times plea": At "SCOTUSblog," Lyle Denniston has a post that begins, "The Supreme Court, without noted dissent, refused on Monday to block the forced disclosure to federal investigators of telephone records of two New York Times reporters." Posted at 02:18 PM by Howard Bashman "High Court Hears Pay-Discrimination Case": The Associated Press provides this report. Posted at 02:15 PM by Howard Bashman "Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images." So holds a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in a decision issued today. Posted at 01:33 PM by Howard Bashman "An Immodest Proposal": In the December 11, 2006 issue of The Nation, Law Professor David Cole will have an essay that begins, "Secretary of Homeland Security Michael Chertoff made an impassioned plea to the Federalist Society the other day for 'judicial modesty.' Modesty is of course a virtue, but Chertoff failed to say why he had singled out judges for this particular lesson in manners. What about executive modesty? The Bush Administration has in recent weeks done everything it could to coerce the courts into a 'modest' position, so that they will not interfere with the Administration's own immodest arrogations of power." Posted at 11:45 AM by Howard Bashman "Overexposed: The FCC's illogical standard of indecency." Online at The New Republic, Michelle Cottle has an essay that begins, "Nearly three years after they helped introduce the magical phrase 'wardrobe malfunction' into the American lexicon, Janet Jackson's boobs are back in the news. Specifically, justices on the Third U.S. Circuit Court of Appeals spent their run up to Thanksgiving hearing CBS's plea to weasel out of paying the $550,000 fine with which the Federal Communications Commission slapped the company following Jackson's very special Super Bowl half-time show with Justin Timberlake." Posted at 11:35 AM by Howard Bashman "The Great Property-Rights Revival: Americans are rebelling against eminent-domain abuse." Timothy Sandefur has this essay today at National Review Online. Posted at 11:33 AM by Howard Bashman "US high court won't review Illinois tobacco case": James Vicini of Reuters provides a report that begins, "The U.S. Supreme Court let stand on Monday a ruling that threw out a $10.1 billion verdict against Philip Morris USA in a lawsuit that accused the Altria Group Inc. unit of misleading consumers about the risks from smoking 'light' cigarettes." The Associated Press reports that "Supreme Court Sides With Philip Morris." And MarketWatch reports that "Supreme Court turns down 'lights' case appeal." Today's rulings of note from the U.S. Court of Appeals for the Sixth Circuit: In today's first ruling of note, a unanimous three-judge panel issued a decision affirming the entry of summary judgment in favor of the automaker Audi AG on its claims for infringement, dilution, false designation of origin, and cyberpiracy against a man unaffiliated with Audi who used the domain name www.audisport.com to sell goods and merchandise displaying Audi's name and trademarks. In a second ruling of note, the Sixth Circuit rejects the First Amendment free speech claim of several former employees of the Kentucky Department of Parks who claim that they were fired for failing to adhere to a dress code requiring that shirts be tucked-in. The Sixth Circuit's opinion explains, "The plaintiffs provide little argument to rebut the determination that untucked shirts do not amount to speech on a matter of public concern. There is no suggestion, for example, that they were untucking their shirts to express their opinion on some political question." The opinion later also rejects the employees' First Amendment argument that "that they kept their shirts untucked in protest of the dress code." And in today's third and final ruling of interest, a pro se appellant in a direct appeal from a conviction for the federal crime of bank robbery wins a reversal because "the Government failed to present sufficient evidence that the Michigan National Bank's deposits were insured by the FDIC at the time of the robbery." Unfortunately for the victorious appellant, the Sixth Circuit remands the case a retrial at which the prosecution is unlikely to make this same mistake a second time. "Court orders new review of ERISA case": Lyle Denniston has this post online at "SCOTUSblog." You can access today's U.S. Supreme Court Order List at this link. Aside from the GVR that is the subject of Lyle's post, the Court did not grant review in any new cases. In other coverage, The Associated Press reports that "Court Rejects Maine School Vouchers Case"; "High Court Won't Review Smoke Shop Raid"; "Court Shuns Case of Professor, FBI File"; and "Court Won't Hear Asylum Seeker's Plea." "Sectarian prayers continue despite several court rulings": This article appears today in The Winston-Salem Journal (via "Religion Clause"). Posted at 09:55 AM by Howard Bashman "Plead a Little: The Supreme Court Should Not Raise Pleading Standards for Antitrust; The defense may beg for more; But the Supreme Court should keep the standards where they are." Edward D. Cavanagh has this essay (free access) in today's issue of Legal Times. Posted at 09:48 AM by Howard Bashman "When Public Schools Aren't Color-Blind: Louisville's racial guidelines keep its schools from having too many or too few black students; Most parents like the policy; Will the Supreme Court strike it down?" This lengthy article appears in the December 4, 2006 issue of Time magazine. Posted at 09:45 AM by Howard Bashman "What Do the Federal Appellate Procedure Rule Changes Mean for You?" This week's installment of my "On Appeal" column for law.com can be accessed at this link. Two amendments to the Federal Rules of Appellate Procedure officially take effect on December 1, 2006, and you can read more about them here and here. "Rape Is Rape: No matter when it begins." The Washington Post today contains an editorial that begins, "Is it rape if a woman agrees to have sex, then changes her mind after the act has begun and tells the man to stop? Not in Maryland, no matter how clear it is that the woman has withdrawn her consent. According to a ruling last month by the Maryland Court of Special Appeals, the state's intermediate appellate court, forcing a woman to continue to have sex against her will is not rape under common law and state court precedents. If this is a correct interpretation of the law, the law should be changed." My earlier coverage of the ruling can be accessed at this link. "Top court to hear emissions argument; Justices to decide if greenhouse gases are air pollutants": Bob Egelko has this article today in The San Francisco Chronicle. And The Houston Chronicle reports today that "Case could shape policy on warming; Supreme Court will hear whether the EPA can and should regulate vehicle emissions." "On Deck Again: One of Democrats' Favorite Clinton Foes." Today in The Washington Post, Al Kamen's "In the Loop" column begins, "Outgoing Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) got a rousing ovation recently from the conservative Federalist Society when he said he would push for confirmation next month of a group of stalled Bush judicial nominees. But Specter had to acknowledge that he was 'not optimistic' about securing approval for most of the controversial names President Bush kicked back to the Senate -- a White House move that rankled Democrats." Posted at 08:12 AM by Howard Bashman "Subpoenas and the Press": That's the headline of today's installment of David Carr's "The Media Equation" column in The New York Times. Posted at 08:04 AM by Howard Bashman "What, No Tipping the People's Servants?" Today in The New York Times, Dorothy Samuels has an Editorial Observer essay that begins, "If you think Washington's culture of corruption is bad now and couldn't get appreciably worse, my hunch is you don't know about United States v. Valdes. This pending federal case could end up making it legal for public officials to accept gratuities for granting certain types of favored government treatment." You can access my earlier coverage of the D.C. Circuit's ruling from February 2006, since vacated on the grant of rehearing en banc, at this link. "Supreme Court to examine 'obviousness' of patents": c|net News.com provides this report. Posted at 07:55 AM by Howard Bashman "A Blogger Who's a Court-Approved Journalist": The New York Times today contains an article that begins, "Many bloggers describe themselves as journalists. Last week Charles LeBlanc, a rooming house resident who lives on social assistance in Fredericton, New Brunswick, received a court decision establishing his journalistic credentials." The blog in question can be accessed at this link. "UA profs back warming case at Supreme Court": This article appears today in The Arizona Republic. And The Washington Times today contains an editorial entitled "Court tackles global warming." "New face on top court wanted job since day 1": The Newark Star-Ledger today contains this profile of the Supreme Court of New Jersey's newest Justice, Helen E. Hoens. Posted at 07:45 AM by Howard Bashman "Ignorance and abortion": Today in The Washington Times, Nat Hentoff has an op-ed that begins, "On Nov. 7, a South Dakota law prohibiting nearly all abortions in that state was clearly defeated; but still in the federal courts is another South Dakota statute requiring the 'informed consent' of the woman before the abortion." Posted at 07:44 AM by Howard Bashman "'Honest' statute prompts bar fight": This article appears today in The Palm Beach Post. Posted at 07:42 AM by Howard Bashman "Gun makers appeal Hoosier's ruling; Court finds federal shield against lawsuits unconstitutional": The Indianapolis Star today contains an article that begins, "Gun makers are appealing an Indiana judge's first-of-its-kind ruling that a federal law shielding gun manufacturers from lawsuits is unconstitutional." Posted at 07:40 AM by Howard Bashman "A trial for high court's webcast; First session tentatively set for Thursday as Md. judiciary pushes for visibility and access": The Baltimore Sun today contains an article that begins, "Maryland's highest court is poised to begin live Webcasting of its oral arguments, making the staid proceedings widely and immediately available for the first time to people outside its Annapolis courtroom." Posted at 06:47 AM by Howard Bashman "New eminent domain war: Vincent Rack's family has owned North Bend land since 1932; now Green Township wants to claim 6.5 acres of it." The Cincinnati Enquirer contains this article today. Posted at 06:45 AM by Howard Bashman "Case to test states' bank rules; Supreme Court to hear Wachovia's challenge to local regulations": This article appears today in The Charlotte Observer. The Detroit News reports today that "Mich. takes Wachovia to High Court; State argues Wachovia subsidiary must follow its consumer protection laws, not U.S. agency's." And Bloomberg News reports that "Spitzer Battles Wachovia's Dream Team in State-Power Court Case." The Associated Press is reporting: Now available online are articles headlined "Supreme Court to Mull Pay-Discrimination" and "Texas Jury to Get Smuggling Deaths Trial." Posted at 06:40 AM by Howard Bashman "Ledbetter v. Goodyear: The Supreme Court Considers Procedural Technicalities That Perpetuate the Gender Wage Gap." Joanna Grossman and Deborah Brake have this essay today at FindLaw. Posted at 06:38 AM by Howard Bashman "Killing Habeas Corpus: Arlen Specter’s about-face." Jeffrey Toobin has this article in the December 4, 2006 issue of The New Yorker. Posted at 06:30 AM by Howard Bashman "Blawg Review #85": Available online here, at "Freedom To Differ." Posted at 06:27 AM by Howard Bashman 
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