How Appealing

Friday, December 29, 2006

"Dictator Who Ruled Iraq With Violence Is Hanged for Crimes Against Humanity": This article will appear Saturday in The New York Times.
Posted at 11:14 PM by Howard Bashman


"Appeals court reconsidering execution for Comer": David Kravets of The Associated Press provides this report. My earlier coverage can be accessed here.
Posted at 09:14 PM by Howard Bashman


"What's Wrong With Retired Federal Judges Filing a Friend-of-the-Court Brief?" Eugene Volokh has this post at "The Volokh Conspiracy."

My earlier coverage is at this link.
Posted at 08:55 PM by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "U.S. Judge Weighs Saddam Request" and "U.S. Court Refuses to Spare Iraqi."
Posted at 08:40 PM by Howard Bashman


In case you need one more reason to look forward to 2007: On January 23, 2007, Jan Crawford Greenburg's new book -- "Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court and America's Future" -- will be available for purchase. The book's publisher, Penguin Press, offers a description of the book that begins, "Drawing on unprecedented access to the Supreme Court justices and their inner circles, acclaimed ABC News legal correspondent Jan Crawford Greenburg offers an explosive, newsbreaking account of one of the most momentous political watersheds in recent American history."

Because the book apparently really is newsbreaking in various respects, advance copies aren't being distributed. But you can preorder (and also view the book's cover) at Amazon.
Posted at 05:48 PM by Howard Bashman



"Official: Saddam to Be Executed Tonight." The Associated Press provides this report.

And a related AP report headlined "Saddam Asks U.S. to Block Execution" begins, "Lawyers for Saddam Hussein on Friday made a last-minute appeal to an American court to avert execution in Iraq, asking a judge to block his transfer from U.S. custody to the hands of Iraqi officials."
Posted at 05:38 PM by Howard Bashman



A busy day for Ray Luipa in the Fourth Circuit: In the second of two published opinions that the U.S. Court of Appeals for the Fourth Circuit issued today involving the Religious Land Use and Institutionalized Persons Act, a three-judge panel divides over whether to reinstate certain claims asserted by a Virginia state prison inmate who sued to challenge his removal from the prison's Ramadan observance program.

Circuit Judge J. Harvie Wilkinson III issued a partial dissent that concludes, "It is unfortunate that a policy designed to respect the Ramadan fast for the profound observance that it is should become the means for potentially tying prisons up in knots. No one argues that a court should blindly accept any justification for a prison policy that interferes with religious exercise. But to substitute its own judgment for the accommodative judgment of prison administrators is just as bad." You can access the complete 65-page ruling at this link.
Posted at 05:32 PM by Howard Bashman



"We hold that RLUIPA is a valid exercise of Congress' spending power and that, because Virginia voluntarily accepted federal correctional funds, it cannot avoid the substantive requirements of RLUIPA." So holds a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit in an opinion that Circuit Judge J. Harvie Wilkinson III issued today.

Today's decision also holds: "With respect to sovereign immunity, we find that Congress unambiguously conditioned federal funds on a State's consent to suit. Because that condition does not clearly and unequivocally indicate that the waiver extends to money damages, however, the Eleventh Amendment bars [the plaintiff's] claim for monetary relief against the State."
Posted at 05:25 PM by Howard Bashman



For those who must be in federal court on Tuesday, January 2, 2007: In a post from earlier today, I noted that various federal appellate courts have announced that they will be closed for business on Tuesday, January 2, 2007 in recognition of the National Day of Mourning for President Ford.

The U.S. District Court for the District of Kansas today issued the following statement:

The Court decided this morning to remain open for business on Tuesday, January 2. The decision of the Court was made in part by the knowledge that the 10th Circuit Court of Appeals will remain open and the press of Court business in the District of Kansas. The Court believes that we can best honor the memory of President Ford by continuing to do the people's business.
The Tenth Circuit, meanwhile, which is closed again today due to the latest blizzard to strike Denver, has issued the following statement:
The nation has lost a great leader in President Gerald R. Ford this past week. We remember and honor him in memorial services and personal reminiscences. In the spirit of public service modelled by the late President Ford, the Tenth Circuit Courthouse in Denver, which has been particularly hard hit by the weather recently, will be open on Tuesday. We ask you all to honor the life and memory of President Ford as we express our gratitude for his life of service to this nation.
Those readers who simply must begin the new year by appearing in federal court on the first business day of January 2007 thus have the option of traveling to Denver, Colorado or the State of Kansas.
Posted at 03:38 PM by Howard Bashman


U.S. Court of Appeals for the Ninth Circuit ends 2006 by granting rehearing en banc in four separate cases: You can access all four en banc orders via this link.

The grant of rehearing en banc that's initially of most interest to me is today's order in Comer v. Schriro. The three-judge panel's divided ruling in that case was the subject of my law.com column from September 2006 headlined "When Can an Inmate 'Volunteer' for Death? 9th Circuit rejects a competent inmate's decision to abandon legal challenge to his capital sentence."

In that essay, I wrote:

I am confident that if the state of Arizona seeks further review in Comer's case, either from an en banc 9th Circuit or the U.S. Supreme Court, last week's divided decision holding that it violates the 8th Amendment to abide by the wishes of a so-called death penalty volunteer will be overturned. The three-judge panel majority's unwillingness to allow an unconstitutional execution to occur may be admirable from a policy perspective, but it exceeds their power as Article III judges to issue a ruling in the absence of any actual case or controversy. For better or worse, Article III's limits on judicial power contain no exceptions applicable to the death penalty or 8th Amendment challenges.
My earlier blog-based coverage of the Comer case can be accessed here and here.
Posted at 03:05 PM by Howard Bashman


"Court Won't Consider Judges' Arguments": The Associated Press provides a report that begins, "An appeals court considering whether Guantanamo Bay detainees have constitutional rights said Friday that it will not accept arguments by seven retired federal judges who oppose a new U.S. anti-terrorism law."
Posted at 02:33 PM by Howard Bashman


Seventh Circuit addresses the value of a saccharine claim that fountain Diet Coke isn't only sweetened with NutraSweet brand aspartame: A putative class action initiated in Illinois state court but then removed by the defendant to federal court alleged that the Coca-Cola Company deceived Diet Coke consumers in Illinois by failing to disclose that fountain Diet Coke and bottled Diet Coke are not the same product because the fountain variety of the beverage contains a blend of the sweeteners aspartame and saccharin.

After the federal district court sustained subject-matter jurisdiction over the case but refused to certify a class action, the proposed class representative accepted a settlement of $650 but retained the right to appeal from the denial of class certification and the sustaining of federal court jurisdiction. Today, in an opinion by Circuit Judge Diane S. Sykes, a unanimous three-judge Seventh Circuit panel holds that the federal district court did not err in concluding that the named plaintiff's claim exceeded $75,000 in value on the date of removal and affirms the denial of class certification.
Posted at 01:23 PM by Howard Bashman



Four-day weekend: Various federal appellate courts have announced that they will be closed for business on Tuesday, January 2, 2007 in recognition of the National Day of Mourning for President Ford. Those courts that have thus far posted on the internet news of their closure on Tuesday are the D.C. Circuit, the Second Circuit, the Sixth Circuit, the Eighth Circuit, and the Federal Circuit.

Meanwhile, the Tenth Circuit is closed today due to the latest Denver blizzard.

Update: The Fifth Circuit's web site has been updated to note that the court is officially closed on Tuesday but that oral arguments will proceed as scheduled in Houston. And according to this post from Lyle Denniston at "SCOTUSblog," the U.S. Supreme Court will also be officially closed for business on Tuesday.

Second update: The First Circuit's web site has been updated to note that the court will be closed Tuesday. And so has the Fourth Circuit's web site and the Ninth Circuit's web site.
Posted at 11:50 AM by Howard Bashman



Current judges remind former judges that former judges aren't "judges" any longer: The majority on a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit today issued an order that likely will strike many as rather petty. Today's order states, in full:
Upon consideration of the unopposed motion of retired federal jurists for leave to file brief amici curiae in support of petitioners regarding the Military Commissions Act of 2006, and the lodged brief, it is

ORDERED that the motion for leave to file be denied. See Advisory Opinion No. 72, Committee on Codes of Conduct, Judicial Conference of the United States ("Judges should insure that the title 'judge' is not used in the courtroom or in papers involved in litigation before them to designate a former judge, unless the designation is necessary to describe accurately a person's status at a time pertinent to the lawsuit.").

The Clerk is directed to return to movant-amici curiae the lodged brief.

Circuit Judge Judith W. Rogers issued a short statement noting her disagreement with the order rejecting the amicus brief. It is an interesting question whether the referenced Advisory Opinion, which says that former judges shouldn't be referred to as "judge" in the courtroom or in papers filed in litigation, was intended to prevent former judges from being referred to as "former judges."

At least the policy shouldn't prevent a former judge from operating a web log titled "X-Judge."

Update: Via "SCOTUSblog," you can access the rejected amicus brief at this link.
Posted at 10:20 AM by Howard Bashman



Former U.S. Air Force enlistee who viewed Osama bin Laden as a "hero" loses Sixth Circuit appeal challenging federal criminal conviction for having made false statements on application to become a baggage screener for the Transportation Security Administration: You can access today's ruling of the U.S. Court of Appeals for the Sixth Circuit at this link.
Posted at 10:08 AM by Howard Bashman


The Pittsburgh Post-Gazette is reporting: Today's newspaper contains articles headlined "Teen expelled for rap lyrics reaches $60,000 settlement" and "North Side adult theater exhausting its legal appeals; Garden Theater advocates could ask U.S. Supreme Court to review First Amendment case."
Posted at 09:58 AM by Howard Bashman


"Justices rebuff alumni; Association cannot challenge Milton Hershey School in court": The Harrisburg Patriot-News contains this article today.

My earlier coverage appears at this link.
Posted at 09:55 AM by Howard Bashman



"N.J. court rejects Neulander appeal; The ex-Cherry Hill rabbi said barred testimony led to his trial being unfair": This article appears today in The Philadelphia Inquirer.

The Newark Star-Ledger reports today that "Murderous rabbi loses his bid for a third trial."

And The Courier-Post of Cherry Hill, New Jersey reports that "Neulander loses bid for retrial."

My earlier coverage appears at this link.
Posted at 09:52 AM by Howard Bashman



"Justices asked to hear failure-to-appear case": The Stamford Advocate contains this article today.
Posted at 09:45 AM by Howard Bashman


"With a Game at Dartmouth, Fighting Sioux Stir Debate": This article appears today in The New York Times.

And The Boston Globe reports today that "Criticism of team's name heats up Dartmouth game; Sioux imagery is 'offensive,' says AD."
Posted at 09:35 AM by Howard Bashman



"'Chronicle' Reporters Face Jail Over Steroids Leak": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition."
Posted at 09:32 AM by Howard Bashman


"Baseball players to fight court ruling": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "A federal appeals court ruling allowing prosecutors to seize and use confidential drug-testing records of baseball players threatens the right to privacy and will be challenged, the head of the Major League Baseball Players Association said Thursday."
Posted at 09:30 AM by Howard Bashman


Gross disobedience of employer's safety instructions leads Supreme Court of Ohio to uphold denial of workers' compensation benefits to KFC employee injured in workplace mishap: The New York Times reports today that "Ohio Ruling Denying Pay in Job Injury Draws Debate."

The Columbus Dispatch reported yesterday that "Negligent may lose, judges rule."

The Toledo Blade reported yesterday that "Court rules against injured worker; Employee fired for causing own injury can be denied benefits, justices say."

And The Cleveland Plain Dealer reported yesterday that "Denial of on-job injury pay upheld; Stubborn teen gave up rights, top court rules."

You can access Wednesday's ruling of Ohio's highest court at this link.
Posted at 07:54 AM by Howard Bashman



All of the above: Question one in columnist William Safire's "The Office Pool, 2007" asks:
1. The "O'Connorless Supreme Court" will decide

(a) without reversing Roe v. Wade to uphold laws restricting late-term abortion because they do not impose an "undue burden" on women

(b) that public schools in Seattle and Louisville, in their zeal to prevent re-segregation, have gone too far in using race in selection of students

(c) to reject Massachusetts' case to force the Environmental Protection Agency to raise auto emissions standards, holding that "global warming" gives the state no standing to sue without new law

And Safire's own quite plausible prediction in response to this question is "All."
Posted at 07:40 AM by Howard Bashman


"McCain-Feingold in the Dock: Where do Alito and Roberts stand on free political speech?" This editorial (free access) appears today in The Wall Street Journal.
Posted at 07:35 AM by Howard Bashman


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