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Friday, November 30, 2007 Available online from law.com: The brand new installment of my "On Appeal" column is headlined "2nd Circuit Offers Glimpse of Federal Courts' Recusal Process." And Brian Wommack has an essay entitled "Let the People See Justice: For the good of the nation, the Supreme Court's oral arguments belong on television." "Stolt-Nielsen S.A. Wins Amnesty Agreement Case Against the DOJ Antitrust Division": Reuters provides this report. And Dow Jones Newswires report that "Stolt-Nielsen Case Is Dismissed." My earlier coverage appears at this link. "[W]e hold that ... the prosecutor must inform the grand jury whenever the accused clearly and unconditionally indicates to the state that he or she desires to testify before the grand jury." So holds the Supreme Court of Alaska in a decision issued today. Thanks to a reader in Juneau for the pointer. Posted at 05:25 PM by Howard Bashman "Sixth Circuit going en banc on acquitted conduct enhancements!" Doug Berman has this post at his "Sentencing Law and Policy" blog. Posted at 05:00 PM by Howard Bashman U.S. District Court for the Eastern District of Pennsylvania enforces amnesty agreement in favor of Stolt-Nielsen S.A. and against the Antitrust Division of the U.S. Department of Justice by dismissing the criminal indictment against that company and two of its executives: In response to the ruling, the company issued this press release. I have posted online both the trial court's memorandum opinion and the trial court's findings of fact and conclusions of law. "My colleagues should shut up!" The "Washington Whispers" blog of U.S. News & World Report attributes that quote to Justice Clarence Thomas, speaking Wednesday night at Hillsdale College in Michigan. "The Lede" blog of The New York Times notes the quote today in a post titled "Clarence Thomas's Case for Shutting Up." On November 8, 2007, the blog "DailyWrit" had this post purporting to chart how often each Justice starts speaking (although not the volume of what they are saying or its relative value). A PDF version of the chart can be accessed here. Update and correction: Although Hillsdale College hosted the event at which Justice Thomas made these remarks, his talk took place at a hotel in Washington, DC. C-SPAN aired Justice Thomas's remarks on the December 22, 2007 broadcast of "America and the Courts," and you can view that broadcast by clicking here (RealPlayer required). U.S. Court of Appeals chief judge trivia contest -- an answer to question two: Question two -- the most difficult of my four questions -- asked: "The U.S. Courts of Appeals came into existence in 1891 pursuant to the Evarts Act. When was the most recent earlier time, if ever, that the chief judges of the U.S. Courts of Appeals had all been appointed by Presidents from the same political party? For extra credit, identify each of the times this has happened between 1891 and today (assuming that this has ever happened before)." Reader Jason McNamara emailed to correctly note that in 1981 -- between April 6th when Fourth Circuit Chief Judge Clement F. Haynsworth, Jr. took senior status, making Harrison L. Winter the chief judge of that court, and October 1st, when the creation of the Eleventh Circuit caused Charles Clark to become chief judge of the Fifth Circuit -- all of the chief judges of the U.S. Courts of Appeals had been appointed to those courts by Democratic presidents. May a plaintiff obtain a jury trial of a lawsuit removed to federal court pursuant to the Foreign Sovereign Immunities Act if the foreign-government instrumentality becomes privatized before the case reaches trial? In an interesting ruling issued today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, Judge Richard A. Posner concludes that a lawsuit removed to federal court solely based on the FSIA should not be tried to a jury even if the foreign sovereign defendant ceases to be a foreign sovereign before the time of trial. The case was argued earlier this month, and you can download the oral argument audio via this link (7.14MB mp3 audio file). Just visiting: The U.S. Court of Appeals for the Federal Circuit today posted the following announcement to its web site: "Since September 2006, eighteen judges from circuit and district courts around the country have sat with the Federal Circuit. A list of the visiting judges who have sat with the court can be seen here." No word yet on whether this experiment has caused U.S. District Judges in general to feel better about the Federal Circuit. Posted at 12:44 PM by Howard Bashman Thanks to everyone who emailed answers in response to this morning's "U.S. Court of Appeals chief judge trivia contest": The correct answers to questions one and three, and what I believe to be the correct answer to question four, appear in the two posts immediately below. Thus far, however, I've received only one attempt at guessing the correct answer to the most difficult of the four questions -- question two. Noting that later today all thirteen chief judges of the U.S. Courts of Appeals will have been appointed to those courts by Republican presidents, question two asked: "The U.S. Courts of Appeals came into existence in 1891 pursuant to the Evarts Act. When was the most recent earlier time, if ever, that the chief judges of the U.S. Courts of Appeals had all been appointed by Presidents from the same political party? For extra credit, identify each of the times this has happened between 1891 and today (assuming that this has ever happened before)." The only person thus far to hazard a guess at the answer to this question was the aforementioned reader based in New York City who asked not to be identified further. That reader emailed, "I think the answer to 2 might be never, given FDR's lack of appointments to the 4th and Eisenhower's lack of appointments to the 3rd." U.S. Court of Appeals chief judge trivia contest -- the answer to question four: Question four asked: "Using the same assumption provided for question 3, which of the U.S. Courts of Appeals would be the first to have a chief judge who was appointed to that court by President George W. Bush?" Reader John Bledsoe was the first to correctly respond that George W. Bush appointee William J. Riley stands to become Chief Judge of the U.S. Court of Appeals for the Eighth Circuit in 2010. U.S. Court of Appeals chief judge trivia contest -- answers to questions one and three: Question one asked: "Assuming that Alex Kozinski serves a full seven-year term as chief judge of the Ninth Circuit, which Ninth Circuit judge would become the Ninth Circuit's chief judge seven years from today?" In response, reader David K. Neidert writes, "I believe the answer to Question 1 is Sidney Thomas (and if the circuit was split with California, Hawaii, and Territorial Islands in the 9th and everyone else in the new 12th) then Kim McClain Wardlaw would be Chief Judge of the Ninth and Thomas Chief Judge of the 12th (assuming all judges went to the Circuit containing their respective states)." Question three asked: "Assume that, after Alex Kozinski becomes the Ninth Circuit's chief judge later today, each chief judge of the U.S. Courts of Appeals remains in his or her post until statutorily required to vacate the chief judgeship. Which of the U.S. Courts of Appeals would then be the first to have a chief judge who was appointed to that court by President William J. Clinton?" My "20 questions for the appellate judge" interview with Tenth Circuit Chief Judge Deanell Reece Tacha states that she became chief judge of that court on January 26, 2001. Assuming that First Circuit Chief Judge Michael Boudin's seven-year tenure does not expire earlier than that in 2008, then the first Clinton appointee to become a chief judge of a U.S. Court of Appeals will be Tenth Circuit Judge Robert H. Henry. In the unlikely event that Chief Judge Boudin's term ends before Chief Judge Tacha's, then First Circuit Judge Sandra L. Lynch would be the first Clinton appointee to become a chief judge of a U.S. Court of Appeals. A reader based in New York City who asked not to be identified further was the first to email Judge Henry as the correct answer to this question. Update: The July 2001 issue of The Third Branch newsletter states that Boudin became the First Circuit's chief judge in June 2001. Accordingly, the correct answer to this question is Judge Henry of the Tenth Circuit. U.S. Court of Appeals chief judge trivia contest: Later today, after Alex Kozinski becomes chief judge of the U.S. Court of Appeals for the Ninth Circuit, each of the thirteen U.S. Courts of Appeals will have a chief judge who was appointed to his or her current court by a Republican President. President Ronald Reagan is responsible for nine of those appointments, while President George H.W. Bush appointed the people who currently serve as chief judges of the First, Second, Fourth, and Eighth Circuits. The qualifications for becoming the chief judge of a U.S. Court of Appeals, and for determining how long someone can continue to serve as chief judge, are set forth in 28 U.S.C. sec. 45. As noted in this recent Ninth Circuit press release, "The chief judge is the judge in regular active service who is senior in commission of those judges who are (1) 64 years of age or under; (2) have served for one year or more as a circuit judge; and (3) have not served previously as chief judge." And, if another judge then meets the qualifications to assume the post of chief judge, the person serving as chief judge must step down from that post after having served as chief judge for seven years or on reaching the age of 70, whichever comes first. Here are some chief judge trivia questions: 1. Assuming that Alex Kozinski serves a full seven-year term as chief judge of the Ninth Circuit, which Ninth Circuit judge would become the Ninth Circuit's chief judge seven years from today? 2. The U.S. Courts of Appeals came into existence in 1891 pursuant to the Evarts Act. When was the most recent earlier time, if ever, that the chief judges of the U.S. Courts of Appeals had all been appointed by Presidents from the same political party? For extra credit, identify each of the times this has happened between 1891 and today (assuming that this has ever happened before). 3. Assume that, after Alex Kozinski becomes the Ninth Circuit's chief judge later today, each chief judge of the U.S. Courts of Appeals remains in his or her post until statutorily required to vacate the chief judgeship. Which of the U.S. Courts of Appeals would then be the first to have a chief judge who was appointed to that court by President William J. Clinton? 4. Using the same assumption provided for question 3, which of the U.S. Courts of Appeals would be the first to have a chief judge who was appointed to that court by President George W. Bush? Answers to these trivia questions can be sent to me via email. Each person who is the first to respond correctly to any question will be identified by name here at "How Appealing" unless the person asks not to be so identified, in which case some other more generalized description will be used. Update: Since this post was published, I have received answers to each of these questions from various readers. Scroll up to access the posts in which I've published those answers. "The 9th Circuit's new No. 1: Judge Alex Kozinski may have to temper some of his eccentricities to lead the such a complex court." Law Professor Carl Tobias has this op-ed today in The Los Angeles Times. "How Appealing" takes this pre-breakfast (at least on the west coast) opportunity to wish soon-to-be Chief Judge Alex Kozinski a fulfilling and successful tenure in that post. As someone once said, "Don't hate the player." "Whose right to bear arms?" Columnist Paul Greenberg has this op-ed today in The Washington Times. Posted at 09:28 AM by Howard Bashman "Splenda maker getting legal vitriol from sugar firms; A court in L.A. will hear a false-advertising suit; Defendant says buyers know the sweetener is not truly natural": This article appears today in The Los Angeles Times. Posted at 09:25 AM by Howard Bashman "Panel Rebuffs White House Privilege Claim": The New York Times today contains an article that begins, "The Senate Judiciary Committee inched forward Thursday in its struggle with the White House over subpoenas demanding information from current and former Bush administration officials about the firing of several United States attorneys last year." And The Washington Times reports today that "Leahy rejects claim of privilege." "A Case of Trial Lawyers v. Trial Lawyers; Largest Association Sues Upstart, Asserting Ownership of Discarded Acronym": The Washington Post contains this article today. Posted at 09:10 AM by Howard Bashman "A Mixed Blessing for Aspiring Lawyers; High Tuition and Debt Lure Graduates Toward High Pay, Away from Public Service Jobs": This front page article appears today in The Washington Post. Posted at 09:04 AM by Howard Bashman "A Landscaper Is Mauled, and an Outpouring of Sympathy Goes to the Dog": The New York Times today contains an article that begins, "It's man versus beast in Princeton, and the town is in an uproar over a dog on death row. The curious case of Congo, an 85-pound German shepherd sentenced to die for attacking a Honduran landscaper, is making its way through New Jersey's courts." The Trenton Times has provided extensive coverage of this matter in articles headlined "Dog's fate devastates family; Judge orders shepherd destroyed after vicious attack"; "A different view of dog attack; Animal control officer says shepherd was unprovoked"; "Canine's plight stirs up emotions; Rally planned for today as lawsuits, threats ensue"; "No reprieve for Congo; Local judge upholds his decision to have 'vicious' dog destroyed"; "Police: Congo not provoked; Report does not mention owner pulled to ground"; "Congo goes home; Dog released to his family pending appeal of death sentence"; "Congo to get his day in State House"; and "Canine violence bill introduced." "Appeals Court Voids Agreement to Pay Freelancers for Work Published on the Web": This article appears today in The New York Times. Reuters reports that "Court throws out freelance writers' settlement." And Dow Jones Newswires report that "US Appeals Court Vacates Freelancers-Database Operators Pact." My earlier coverage of yesterday's Second Circuit ruling and the accompanying recusal-related decision from two of the three judges on the panel appears at this link. Available online from law.com: Tony Mauro reports that "Chief Justice Declines to Provide Health Update." And Marcia Coyle has an article headlined "High Stakes for Regulated Industry in Supreme Court Pre-emption Cases." "A New Push to Roll Back 'Don't Ask, Don't Tell'": The New York Times today contains an article that begins, "Marking the 14th anniversary of legislation that allowed gay men and lesbians to serve in the military but only if they kept their orientation secret, 28 retired generals and admirals plan to release a letter on Friday urging Congress to repeal the law." Posted at 08:35 AM by Howard Bashman "Court tells cops: Return medical marijuana if drug charges dropped." Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "Police who confiscate medical marijuana must give it back when drug charges against the user are dismissed, a state appeals court has ruled in a case that could settle a hotly disputed issue of conflicting state and federal drug laws." The New York Times reports today that "Court Orders Police to Return Marijuana." Thursday's edition of The Orange County Register reported that "Court orders Garden Grove police to return pot; Ruling by state appeal judges is a win for medical marijuana patients, advocates say." And The Recorder contains an article headlined "Court to City: Return Pot User's Stash." Associate Justice William W. Bedsworth of California's Fourth District Court of Appeal wrote the decision on behalf of a unanimous three-judge panel. Justice Bedsworth was the June 2004 interviewee in this blog's "20 questions for the appellate judge" feature. He also writes a column called "A Criminal Waste of Space" for the Orange County Lawyer magazine. "How Scruggs Case Came Together: Judge Helped Probe After He Says Bribe Was Offered to Him." Ashby Jones and Peter Lattman have this article today in The Wall Street Journal. That newspaper also contains an editorial entitled "The Trial Bar on Trial." And in other coverage, The Los Angeles Times today contains an article headlined "Katrina lawyer at the eye of a storm; Richard Scruggs' clients wonder what his indictment may mean for the scores of pending cases against their insurance carriers." "Van Hollen has ties to case; Business lobby spent millions on attorney general, Ziegler in elections": The Milwaukee Journal Sentinel today contains an article that begins, "Attorney General J.B. Van Hollen did not withdraw from a state Supreme Court case that was partially bankrolled by a group that spent $2.5 million to get him elected last year. The tax case has generated scrutiny because the same group, business lobbyist Wisconsin Manufacturers & Commerce, spent more than $2 million to elect Annette Ziegler to the Supreme Court in April. Ziegler has remained on the case." Posted at 08:03 AM by Howard Bashman  
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