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Wednesday, December 20, 2006 Available online from law.com: Marcia Coyle has an article headlined "For a High Court Battle, Two Words: Get Carter." And in other news, "Ga. Lawyer Upbeat on Evolution Deal." "Inviting A Federal Judge to A Seminar? You May Have to Report It." The Administrative Office of the U.S. Courts issued this news release yesterday. Also available online are FAQs and the text of the applicable Judicial Conference Policy. Posted at 10:23 PM by Howard Bashman "Best Law Blog (2006)": Congratulations to "The Volokh Conspiracy," which is the well-deserved winner of this honor in The 2006 Weblog Awards. And thanks to everyone who voted for "How Appealing" in that contest, enabling this blog to achieve second place. "Manchin not entitled to immunity, U.S. court rules": The West Virginia Record provides a news update that begins, "The United States Fourth Circuit Court of Appeals said Wednesday that Gov. Joe Manchin is not entitled to immunity in a suit brought against him by Massey Energy CEO Don Blankenship, affirming an earlier District Court ruling." And The Associated Press reports that "Massey CEO wins procedural round in lawsuit against Manchin." You can access today's ruling of the U.S. Court of Appeals for the Fourth Circuit at this link. Chief Judge Easterbrook versus Circuit Judge Posner: Are you, like me, of the belief that any decision in which Frank H. Easterbrook or Richard A. Posner dissents from the other's opinion of the U.S. Court of Appeals for the Seventh Circuit is likely to be worth a look? If so, you won't want to miss this decision that the Seventh Circuit issued today. The context of today's case is as follows. The U.S. Supreme Court has ruled that a governmental official who is being sued has the right to appeal from a federal district court's denial of the qualified immunity defense at both the pleadings stage and at the summary judgment stage. In an earlier case, the Seventh Circuit ruled that where a federal district court denied two summary judgment motions filed by the same defendant asserting qualified immunity, the defendant cannot appeal from the second ruling because he should have appealed from the first. In today's case, the defendant asserted a qualified immunity defense at both the pleadings stage and the summary judgment stage, but at the summary judgment stage the defendant's argument in support of qualified immunity did not differ either factually or legally from the argument made at the judgment on the pleadings stage. Because the defendant did not appeal from the district court's denial of qualified immunity at the pleadings stage, the majority today holds that he cannot appeal from the denial of qualified immunity at the summary judgment stage, which is what the defendant was seeking to do in the case decided today. Although the majority, in an opinion by Chief Judge Easterbrook, questions the soundness of the earlier decision, it views itself as bound by the outcome of that case here. Judge Posner, in dissent, concludes that the earlier decision does not dictate the outcome here, and therefore he would consider today's appeal on the merits. I think I agree with Judge Posner's dissent. "Nudity law is struck down; The adult industry scores a victory; The law would have affected several clubs in KC": This article appears today in The Kansas City Star. And The Associated Press provides a report that begins, "The Missouri Supreme Court struck down a state law Tuesday barring nude dancing and touching between strippers and customers." You can access yesterday's ruling of the Supreme Court of Missouri at this link. "The Lessons and Lasting Importance of Defeating the Nuclear Option": Ralph G. Neas, president, People For the American Way Foundation, issued this statement today. Posted at 07:20 PM by Howard Bashman "Judges Quiz Lawyer on FCC Indecency Rule": The Associated Press provides a report that begins, "Federal appeals judges Wednesday challenged a government lawyer over the Federal Communications Commission's tough new policy against accidental use of profanities in broadcasts." WSJ.com's "Washington Wire" blog provides a post titled "C-SPAN’s Potty-Mouth Broadcast" that asks, "How often does noted Supreme Court specialist Carter Phillips get to drop the f-bomb (and worse) in open court?" At CNN.com, Jeffrey Toobin reports that "Attorney argues FCC rules on profanity unfair." Bloomberg News reports that "Fox TV Asks Court to Throw Out FCC's Indecency Policy." MarketWatch reports that "Federal court grills FCC in Fox TV indecency case." And Broadcasting & Cable provides a report headlined "Views Vary on Oral Argument." According to this report, "the judges may have been reluctant to swear in court, but Fox attorney Carter Phillips said 'fuck' and 'fucking' and 'shit' almost immediately in outlining the case, as if to get the words out, on the table and unabashedly part of the conversation." You can access audio and video of attorney Carter G. Phillips's profanity-laden oral argument presented today before a three-judge panel of the U.S. Court of Appeals for the Second Circuit by clicking here (RealPlayer required) via C-SPAN. "State's top court agrees to review same-sex marriage ruling": Bob Egelko of The San Francisco Chronicle provides this news update. And David Kravets of The Associated Press reports that "Calif. High Court Reviewing Gay Marriage." Programming note: During the day today, I will be away from the office meeting with co-counsel to finalize a Brief for Appellants due to be filed tomorrow in an appeal pending in the Superior Court of Pennsylvania. Earlier media coverage of that case can be accessed here. Also today, thanks to the hard work of of the students and faculty members of the University of Virginia Law School's Supreme Court Litigation Clinic, a petition for writ of certiorari is being filed in the grandparent visitation case in which my client was on the losing side before the Supreme Court of Pennsylvania. You can access the rulings in that case via this link, while related press coverage from Joan Biskupic of USA Today can be accessed here. I'll post a copy of the cert. petition online sometime soon. Additional posts will appear here later today. "Md. executions halted; State court finds procedures established improperly": This article appears today in The Baltimore Sun. Today in The New York Times, Adam Liptak reports that "Highest Court in Maryland Suspends Executions." And The Washington Post reports that "Maryland High Court Calls Halt to Executions; Lethal Injection Blocked Over Procedural Issue." "Cobb gives up on evolution book stickers; School board settles lawsuit that brought national limelight over disclaimers": The Atlanta Journal-Constitution contains this article today. And The Los Angeles Times reports today that "Evolution warnings don't stick." "Court orders FERC to review electricity pacts; The federal ruling on contracts signed by the state in 2001 could reap $1.4 billion in refunds or credits for ratepayers": This article appears today in The Los Angeles Times. And The New York Times reports today that "Court Says U.S. Oversight of Power Industry Was Lax." You can access yesterday's rulings of the U.S. Court of Appeals for the Ninth Circuit both here and here. "Bush appointees signal court's new direction; Chief Justice Roberts and Justice Alito appear ready to steer bench to the right; affirmative action, abortion issues could see big impact": Joan Biskupic has this article today in USA Today. Posted at 06:20 AM by Howard Bashman "TV Profanity Will Go Before Appeals Judges": Joseph Goldstein has this article today in The New York Sun. Posted at 06:15 AM by Howard Bashman "The Supreme Court Rules that California's Upholding a Conviction, Despite Family Members' Wearing Buttons Bearing the Victim's Picture in the Courtroom, Did Not Violate Its Clearly Established Precedent": Vikram David Amar has this essay online today at FindLaw. Posted at 06:14 AM by Howard Bashman  
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