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Friday, May 31, 2002
HERE AND THERE: FindLaw has posted the emergency motion that the U.S. government filed to stay an order of a Virginia federal district court that granted "the federal Public Defender * * * private, unmonitored access to an enemy combatant * * * who was captured in Afghanistan and is being held by the United States military" at the Naval Station Brig in Norfolk, Virginia. You can access a copy of the motion here.
It's once again the time of year when the financial disclosures of the U.S. Supreme Court's Justices are reported as news. You can access this evening's Associated Press report here. Finally for now, FindLaw also has posted a book review in which Roger Clegg, general counsel of the Center for Equal Opportunity, reviews a book entitled "The Rehnquist Court: A Retrospective." The book, edited by Martin H. Belsky, is an anthology. Each of its fifteen chapters is written by one or more different authors. You can access Mr. Clegg's book review here. Posted at 19:51 by Howard Bashman MAY 31, 2002 OFFICIALLY DECLARED FIRST AMENDMENT DAY: At least here on the east coast of the USA, where today the D.C. Circuit has ruled unconstitutional a regulation banning leafleting and other demonstration activities on the sidewalk at the foot of the House and Senate steps on the East Front of the United States Capitol. You can access the D.C. Circuit's decision here. Posted at 14:10 by Howard Bashman BREAKING NEWS: A three judge federal district court panel in Philadelphia has just declared unconstitutional the federal law known as the Children's Internet Protection Act. You can read early news coverage of this development here. You can access the opinion, written by Third Circuit Chief Judge Edward R. Becker, here (in HTML format) or here (in PDF format). The federal government now has the right to appeal from this ruling directly to the Supreme Court of the United States. You can access the text of the Act here. The ACLU has a Web page devoted to the case, which you can access here. Posted at 09:37 by Howard Bashman A MUST READ: Journalist Susan Konig has written an extraordinarily moving essay about turning 40 yesterday, on the final day of the World Trade Center cleanup and recovery effort. A childhood friend of hers was among the many people murdered in the September 11th terrorist attack on New York City. Posted at 08:12 by Howard Bashman A QUICK LOOK AT FRIDAY'S NEWSPAPERS: The Washington Post reports that the federal government is defending Washington, D.C.'s handgun ban, even though that ban appears to conflict with the Justice Department's current understanding of what the Second Amendment means. And, University of Chicago Law School Professor Cass R. Sunstein has an op-ed piece in The New York Times criticizing the U.S. Supreme Court's ruling earlier this week in Federal Maritime Commission v. South Carolina State Ports Authority. You can read my summary of that decision here. Posted at 00:16 by Howard Bashman Thursday, May 30, 2002
FOR THE LOVE OF BEANIE BABIES: Today, for the second time in twenty days, the U.S. Court of Appeals for the Seventh Circuit issued an opinion involving Beanie Babies. On May 10, 2002, it was Circuit Judge Terence T. Evans who had the pleasure of addressing the sentencing challenge of a criminal defendant who had been convicted of bilking individuals intending to purchase Beanie Babies and Pokemon cards of their hard earned cash. You can access that opinion here, and you can access my related posting of May 10th here.
The only collectibles involved in today's opinion were Beanie Babies, and the author of today's opinion was Circuit Judge Richard A. Posner. The case decided today arose when the manufacturer of Beanie Babies sued a publisher of collectible guidebooks for copyright and trademark infringement. You see, the publisher sold a variety of Beanie Baby guidebooks that contained color photographs of the entire Beanie Baby product line. The publisher conceded that its photographs of Beanie Babies were derivative works, which, being copies of copyrighted works, can be produced only under license from the manufacturer. And the publisher, of course, had no license. But, while lacking a license, the publisher did possess a defense, namely the doctrine of fair use. And this is where Judge Posner's opinion began to get quite interesting. He explained: The defense of fair use, originally judge-made, now codified, plays an essential role in copyright law. Without it, any copying of copyrighted material would be a copyright infringement. A book reviewer could not quote from the book he was reviewing without a license from the publisher. Quite apart from the impairment of freedom of expression that would result from giving a copyright holder control over public criticism of his work, to deem such quotation an infringement would greatly reduce the credibility of book reviews, to the detriment of copyright owners as a group, though not to the owners of copyright on the worst books. Book reviews would no longer serve the reading public as a useful guide to which books to buy. Book reviews that quote from ("copy") the books being reviewed increase the demand for copyrighted works; to deem such copying infringement would therefore be perverse, and so the fair-use doctrine permits such copying. On the other hand, were a book reviewer to quote the entire book in his review, or so much of the book as to make the review a substitute for the book itself, he would be cutting into the publisher's market, and the defense of fair use would fail.And, before the opinion concludes, Judge Posner spends some time discussing the television programs "Twin Peaks" and "Seinfeld." By reading today's ruling, you thus will learn not only about copyright law and the fair use doctrine, but you may also learn a thing or two about American culture today and over the past decade or so. Oh, by the way, the Seventh Circuit vacated the district court's injunction in favor of the manufacturer of Beanie Babies -- the injunction had prevented the publisher from selling the books -- and sent the case back to the trial court for further proceedings. Trust me, I don't go out looking for the opinions that deal with Beanie Babies, Pokemon cards (see my post of May 10th), and toy trolls (see my post of May 17th). But, for better or worse, there seems to be no escaping them. Finally for now, thanks to William Quick of DailyPundit.com for his kind words of recommendation earlier today. Posted at 21:20 by Howard Bashman HECKLING IS NOT NICE: And, in Texas, it may also be a crime. The Court of Criminal Appeals of Texas, that state's highest court in criminal cases, yesterday voted 6-3 to require a defendant to stand trial on the Class B misdemeanor offense of disrupting a meeting or procession. The heckler in question, a college student then enrolled at the University of Texas at Austin, was charged with interrupting a speech by former President Bush (you know, the one who served between Presidents Reagan and Clinton). You can access the majority opinion here. You can access the dissenting opinion here. Posted at 17:11 by Howard Bashman THIRD CIRCUIT IN THE NEWS: The Associated Press offers this report on a case that the U.S. Supreme Court re-conferenced today involving the lawfulness of death penalty instructions that had been widely used in Pennsylvania state courts. You can access the Third Circuit's ruling here. The AP's report states that the Third Circuit's ruling, if allowed to stand, may require at least 30 additional death sentences to be set aside in Pennsylvania. You can access the U.S. Supreme Court's docket in the case here. A decision on whether the Supreme Court will grant review may issue on Monday, June 3, 2002. Posted at 14:29 by Howard Bashman GET ME RE-WRITE!: The Associated Press has just posted a news article entitled: "Arkansas to Offer Clinton Class." Hmm, what does that mean? Posted at 12:20 by Howard Bashman GET READY THIRD CIRCUIT: The Immigration and Naturalization Service has expressed its intent to appeal from the ruling yesterday of the U.S. District Court for the District of New Jersey requiring that deportation hearings for individuals caught-up in the Justice Department's terrorism probe be open to the public unless specific compelling evidence exists in a given case demonstrating a need for secrecy. The Los Angeles Times has this report. According to the news article, the federal government has already appealed to the Sixth Circuit from a similar ruling by a Detroit-based federal district judge. The article further reports that the Sixth Circuit denied the government's request for an emergency stay of that earlier ruling. Update: Courtesy of FindLaw.com, you can access the text of the New Jersey district court's ruling here. Careful readers may note that at the top of page 4 of the PDF file containing the opinion, the trial court writes of "the terrorist attacks of September 11, 2002." The year that the court actually had in mind, of course, is 2001. Further update: CNN is now reporting that the Justice Department definitely will be appealing this decision to the Third Circuit. You can access CNN's report here. Posted at 06:53 by Howard Bashman GUNS AND TELEPHONES: Thursday's edition of The Washington Post contains a front page article on how the Solicitor General's Second Amendment footnote is being used to challenge the District of Columbia's sweeping handgun ban. You can read that article here. Also in that paper, an article suggesting that unlisted telephone numbers would not have been sufficient to save the Court of Appeals of Maryland -- that state's highest court -- from the redistricting-related controversy in which it now finds itself embroiled. Posted at 01:03 by Howard Bashman Wednesday, May 29, 2002
FIRST UP TONIGHT, a new blogger template. The old template -- with its three columns -- caused my posts to seem quite lengthy, especially on 15-inch computer monitors. The new template has just two columns, allowing more room for the text of my posts and requiring less scrolling from you, the reader. Let me know whether you like the new template; I do.--- AND NOW, back to our regularly scheduled programming. MORE PROOF THAT TIME IS MONEY: Economics Professor Ian Walker of the University of Warwick, in Great Britain, has mathematically proven that time is money. Various major news outlets, which apparently harbored great doubts about the truthfulness of that common saying, have treated Professor Walker's proof as an astonishing accomplishment. Click here for coverage from the BBC. Click here for coverage from CNN. Click here for a "time is money" calculator from the corporate sponsor of Professor Walker's study, which -- get this -- is a bank. Be forewarned, the "time is money" calculator will require you to identify the region of Great Britain in which you work. This may require most of my readers to answer creatively (but not my friends at OxBlog, of course). LEARNING THE HARD WAY THAT TIME IS MONEY: Today a ruling from the Superior Court of Pennsylvania helped further prove the accuracy of Professor Walker's study. Unfortunately, it does not appear that the newspaper reporters whose contempt citations that court affirmed by a 2-1 vote are sponsored by a major bank, although they probably wish they were right about now. (That use of Fatboy Slim lyrics was entirely unintentional, although I'm reliably advised he's also of British origin.) A Pennsylvania state trial court judge fined two newspaper reporters -- one from The Philadelphia Inquirer, the other from The Philadelphia Tribune -- $100 per minute starting at 12:00 noon on December 13, 2000 until the Commonwealth finally rested its case on rebuttal for failing to disclose to the government unpublished statements that the defendant in a murder case had previously made to these reporters. Neither reporter complied, and each was fined $40,000. In today's decision, the Superior Court affirmed these contempt citations but remanded for imposition of a smaller fine. Senior Judge Olszewski wrote the majority opinion. Judge Stevens dissented and would have held that the First Amendment barred the contempt citations in their entirety. READING IS FUNDAMENTAL?: Instead of mentioning yesterday's excellent opinion by Judge Posner at the close of my lengthy (but riveting) summary posted last night of yesterday's U.S. Supreme Court developments, I saved the decision for today. A plaintiff with an eye condition that prevents him from holding a job in which he has to spend more than fifty percent of his time reading sued his former employer, AT&T, for allegedly failing to place him in a job that would require less reading than his former job necessitated. AT&T won the appeal, however, because in the United States of America reading isn't a major life activity. You can access the court's opinion here. Judge Posner explained: We can imagine, though with some difficulty, a society of bookworms in which a person unable to read more than 50 percent of the time would be deemed unable to engage in a major activity of life. That is not our society. To be unable to read all day long is a misfortune for someone who loves to read or who wants to hold a job (a judgeship for example!) that requires continuous reading, but the ability to read all day long is not a major life activity. * * * True, he cannot read at all without some discomfort, because his difficulty in focusing is continuous; but discomfort and disability are not synonyms. Otherwise a very large fraction of the work force would be disabled.Under the Americans with Disabilities Act, not all medical or physical conditions that might be described as "major" or "disabling" in common parlance qualify as actionable. Last year I briefed an appeal on behalf of a corporate defendant that was sued by a former employee whose medical condition caused a seven-month absence from work. The Third Circuit ruled in favor of my client, holding that the plaintiff was not disabled. You can access my brief in that case here. At the close of his opinion, Judge Posner rejected the plaintiff's argument that the defendant had committed a procedural error that should result in taking away the victory that the defendant won in the trial court. In explaining why the Seventh Circuit panel was refusing the plaintiff's procedural argument, Judge Posner wrote that to accept the argument "would ordain redundancy and create a trap for the unwary, of which the law contains a sufficient number as is to keep us entertained." It's not every day that a federal appellate judge gets to be both eloquent and facetious in the very same sentence. And that's just one more reason why this jurist is among my favorite writers and thinkers in the federal appellate system. Finally for tonight, those of you who may have thought that I made mention earlier today of the Ninth Circuit's reversal of the Supreme Court of Guam's ruling concerning the right of Rastafarians to bring marijuana onto that island simply because it involved Rastafarians, marijuana, Guam and/or the Ninth Circuit would be very wrong. The legal issues that the Ninth Circuit's ruling addresses are indeed most fascinating. Posted at 21:33 by Howard Bashman RASTAFARIANS DEALT SETBACK IN GUAM: Yesterday a Ninth Circuit panel ruled 3-0 that Rastafarians don't have a right to bring marijuana onto that island even though marijuana use is sacramental in the practice of the religion. In so ruling, the Ninth Circuit reversed the decision of Guam's Supreme Court, which had held that banning the importation of marijuana violated the defendant's right to free exercise of religion. You can access the Ninth Circuit's ruling here. Posted at 09:55 by Howard Bashman YAY! WE WIN: Yesterday, the U.S. Court of Appeals for the Third Circuit, in the pro bono prisoner's civil rights appeal that that Court appointed me to handle last summer, ruled in favor of my client, the prisoner. You can access my prior posting on this case here. You can access the appellate brief that I filed in the case here. Because the Third Circuit decided the appeal by means of a "not for publication, not precedential, unreported, per curiam opinion," the decision's text is not available on the Third Circuit's Web site. In three weeks, the case will return to the U.S. District Court for the Western District of Pennsylvania, where Chief District Judge D. Brooks Smith had dismissed the prisoner's suit in April 2000. Posted at 08:07 by Howard Bashman Tuesday, May 28, 2002
THE U.S. SUPREME COURT TODAY issued four opinions, granted review in four new cases, and allowed Texas to administer the death penalty to a man who, at the age of 17, killed the father of a federal appellate judge.
The four opinions issued today don't qualify as end of the Term "blockbusters," but then again it's still May. Two of the four decisions were at least moderately important, unless you are a patent lawyer or a states' rights booster, in which event they were really important rulings. A third decision might qualify as really important to lawyers who handle social security cases on a contingent fee basis. You know who you are. And the fourth case -- well, I'll save that one for last. The Court is scheduled to take the bench again, and issue more opinions and orders, on Monday, June 3, 2002. Score another 5-4 victory for states' rights: Perhaps the most divisive issue to roil the Supreme Court over the past five to ten years came to the fore again today when the Court issued its opinion in Federal Maritime Commission v. South Carolina State Ports Authority, No. 01-46 (U.S. May 28, 2002). Today it was Justice Thomas's turn to lead the charge on behalf of himself and his four other states' rights colleagues, the Chief Justice and Justices O'Connor, Scalia and Kennedy. Justice Breyer wrote the principal dissent, in which Justices Stevens, Souter and Ginsburg joined. Justice Stevens chimed in with a short additional dissent too. According to news reports, Justice Breyer read a portion of his dissent from the bench, which is often understood as signifying how firmly the dissenters disagree. (Its practical effect, however, is simply to hold up distribution of the Court's decision and the dissents to those many of us who aren't then seated in the U.S. Supreme Court's courtroom.) The crux of today's disagreement is this. The Federal Maritime Commission, a federal government agency, allows individuals and companies to file claims against state agencies alleging that the state agencies have violated federal maritime law. In this case, the state agency in question maintained that its sovereign immunity, as reflected in the Eleventh Amendment to the U.S. Constitution, relieved the agency from having to respond to the claim. The five Justice majority reasoned that the Eleventh Amendment is simply one example of the far broader protection that non-consenting states possess against having to respond to claims made against them by individuals and companies in a federal forum. The four dissenters would have ruled that the Eleventh Amendment means what it says, that states don't have protection from suit beyond that amendment's text, the amendment only speaks of suits filed in a federal court, and a federal administrative agency is not a federal court. Thus, according to the dissenters, the state's Eleventh Amendment immunity would only kick-in if the individual or company won some relief from the administrative agency and then sued in federal court to enforce that administrative decision. The catch, though, is that the Federal Maritime Commission could itself sue the state agency to enforce the award, and in that event the state could not assert Eleventh Amendment immunity in response to the federal government's suit. A few quick observations: The Court's Eleventh Amendment jurisprudence is unusual in that the four more liberal Justices find themselves in the role of strict constructionists while the five-member majority expounds upon a theme that the majority freely admits transcends the Constitution's text. The four dissenters have gone on record in earlier dissents as ready to overrule the foundation of the Court's jurisprudence in this area should a fifth vote to do so ever become available. These cases thus involve a subject matter where a change in the Court's personnel could make a big difference. Finally, although Sixth Circuit nominee Jeffrey S. Sutton has been involved on the winning side of a bunch of these 5-4 states' rights rulings, he seems (from the docket of this case) to have had no involvement here. It therefore does not appear that pro-federal-maritime-law interest groups will be joining any protests against his nomination. Hard to pronounce, but easy to decide: In Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., No. 00-1543 (U.S. May 28, 2002), the Court unanimously vacated the Federal Circuit's ruling -- a ruling that critics asserted improperly made it more difficult for inventors to prove patent infringement. Former D.C. Circuit Judge, and U.S. Supreme Court nominee, Robert H. Bork argued this case for the petitioner. As the transcript of oral argument in this case indicates, while the friends and colleagues of a former judge may still call him or her "Judge," in the U.S. Supreme Court a former judge arguing a case is simply called "Mr.," "Mrs.," "Ms.," or "Miss" as appropriate under the circumstances. Lawyers for social security claimants may be paid on a contingent fee basis: What more is there to say? Click here for today's 8-1 ruling. Justice Ginsburg wrote the majority opinion; Justice Scalia, her former D.C. Circuit colleague, was the lone dissenter. (The Court's description of the circuit conflict that led the Court to grant review suggests that the Third Circuit was on the losing side of today's ruling. I'm not sure I agree, but I promise to make up my mind by July 2002 when The Legal Intelligencer will publish my annual U.S. Supreme Court/Third Circuit round-up. Click here to see last year's installment of that column.) When the Chief Justice begins the Court's opinion in your criminal case by describing in lurid detail the murders you have been convicted of committing, a favorable ruling is most unlikely to follow: Further confirming this observation is today's decision in Bell v. Cone, No. 01-400 (U.S. May 28, 2002). The Sixth Circuit had granted habeas relief based on its conclusion that the defendant had failed to receive any assistance of counsel when his defense attorney called no witnesses and made no closing argument in the sentencing phase of this capital murder trial at which the defendant was sentenced to death. The U.S. Supreme Court, by a vote of 8-1, reversed. Justice Stevens was the lone dissenter. The Chief Justice's opinion does a fine job of explaining how the defense attorney's conduct under the circumstances was quite reasonable. Cert. granted in four cases: And here they are: 1. The cross-burning case from the Virginia Supreme Court which I summarized in this post from early this morning (congrats to David Savage for picking this one correctly). As Mr. Savage's Los Angeles Times article of this morning (which has since been updated to note the granting of review) observed, the U.S. Supreme Court may use this Virginia case to address the issues more recently raised by the Ninth Circuit's ruling in the so-called Nuremberg Files case. Indeed, if review is sought in the U.S. Supreme Court from the Ninth Circuit's ruling in that case, the petition likely will be held pending the Court's ruling on the cross-burning case granted review today. Then the Ninth Circuit's decision could be bounced back for reconsideration if the Court affirms the Virginia Supreme Court's ruling. 2. United States v. Recio, a case that the Solicitor General's Office suggested in its cert. petition could be relevant to the war against terror. 3. A case involving federal benefits for orphaned children. (See this AP report.) This case has been a likely candidate for review for some four months now, since Justice O'Connor granted a motion to recall and stay the mandate of the Supreme Court of Washington on January 29, 2002. 4. Finally, the Court will review a case in which Boeing Corp. seeks a tax refund of $419 million. As someone famous once said, $419 million here, $419 million there, and soon you're talking real money. The AP has this report. What a country: On the same night that the state of Texas executed the man who, at the age of 17, killed the father of a federal appellate judge, the Supreme Court of Missouri granted a stay of execution to another man who killed at the age of 17. The Missouri court's stay appears to be based on that court's belief that a pending U.S. Supreme Court case involving the constitutionality of executing the mentally retarded may shed light on the constitutionality of executing someone who killed before reaching the age of 18. See this report on the Missouri court's stay. The contrast between these developments did not escape the attention of The New York Times, which offers this article in its Wednesday edition. Finally, as promised earlier today: Here's the link to Jonathan Groner's in-depth story behind the story on the D. Brooks Smith confirmation battle (courtesy of Legal Times). And don't miss Eugene Volokh's post from earlier today suggesting that Benjamin N. Cardozo may already have secured for himself the distinction of being the first Hispanic U.S. Supreme Court Justice. Posted at 21:19 by Howard Bashman COURT SAYS "YES" TO COOL MOTTO, "NO" TO VIDEO POKER: The Supreme Court of Georgia, whose Web site sports the cool motto "fiat justitia, ruat caelum" (which translates into "let justice be done, though the heavens may fall"), today reinstated Georgia's law criminalizing the use of video poker machines. You can access the ruling here. A state trial court had struck down that law, finding it to be unconstitutionally vague and overinclusive. Posted at 15:49 by Howard Bashman COMING SOON TO A BLOG NEAR YOU: This week's edition of Washington, DC's Legal Times contains an article that promises to provide "[a]n inside look at the successful Senate Judiciary Committee journey for [Third Circuit nominee] D. Brooks Smith." As soon as the full text of that article is available online (which could occur tonight), "How Appealing" will provide a link to the article. Posted at 14:18 by Howard Bashman THREATS, INTIMIDATION, AND THE FIRST AMENDMENT: In today's edition of The Los Angeles Times, U.S. Supreme Court correspondent David G. Savage reports that the Court today could grant review of a Virginia Supreme Court ruling that, by a vote of 4 to 3, struck down that state's law criminalizing cross-burning as violative of the First Amendment. [Update: Indeed, the U.S. Supreme Court did grant review in this, and several other, cases today.] Be sure to check back here tonight for a summary and analysis of today's U.S. Supreme Court opinions and orders. Thanks to PejmanPundit for his very kind words about my site yesterday. He wrote: "Howard Bashman has a terrific blog that is devoted to the issue of appellate litigation. If you want a good explanation of how appellate law is being shaped, you can do no better than to go to his site and learn." You are simply too kind. Posted at 08:23 by Howard Bashman WILL THIS POND BE CLOSED TO FISHING?: Tuesday's edition of The Washington Post contains an editorial that criticizes Senate Judiciary Committee Chairman Patrick J. Leahy for asking U.S. Court of Appeals for the D.C. Circuit nominee Miguel A. Estrada to produce copies of all of Mr. Estrada's written recommendations made while serving in the Solicitor General's Office concerning whether cases should be appealed and what position the government should take as friend of the court. These two articles provide possible reasons why Senator Leahy has sought access to the documents. Posted at 00:14 by Howard Bashman Monday, May 27, 2002
E-JURISDICTION: According to The New York Times, the U.S. Court of Appeals for the Fourth Circuit is scheduled to hear oral argument on Monday, June 3, 2002 in an important Internet libel case that poses the question whether a plaintiff can bring suit wherever allegedly defamatory online material is read. You can access the NYTimes article here.
Posted at 23:47 by Howard Bashman
JUST IN TIME FOR SUMMER: CNN.com reports there's water ice on Mars. No mention is made of what flavors are being offered. Plus, still no appellate courts on that planet, as best as anyone can tell. Posted at 20:46 by Howard Bashman JOHN WALKER LINDH AND THE SECOND AMENDMENT: Over at The National Review's Web site, columnist Dave Kopel has written a very interesting piece addressing the Second Amendment defense recently asserted by counsel for defendant John Walker Lindh. Posted at 17:43 by Howard Bashman ON THIS MEMORIAL DAY: You must read this editorial from today's New York Times. Please be sure not to miss its last paragraph. DEATH PENALTY NEWS: 1. The U.S. Court of Appeals for the Third Circuit has scheduled oral argument in a very important death penalty appeal for Monday, July 8, 2002 at 3:30 p.m. The Commonwealth of Pennsylvania has appealed from a federal district court's decision that set aside the death sentence in this case. Several other federal district judges in Pennsylvania have since set aside death sentences relying on the same rationale. 2. Today's New York Times contains a lengthy article reporting that the man who, at age 17, killed the father of a federal court of appeals judge is scheduled to be put to death by the state of Texas on Tuesday night. Posted at 11:16 by Howard Bashman Sunday, May 26, 2002
ONLY ON THE INTERNET: U.S. News & World Report Senior Writer Michael Barone has penned an opinion piece entitled "Making the case: The lawlessness of today's racial quota and gun control liberals may be coming under serious challenge." You can access this "Web exclusive" here.
LET THE RIVER FLOW: Thanks to a reader in Omaha, Nebraska for emailing information about an appeal pending in the U.S. Court of Appeals for the Eighth Circuit challenging court orders that blocked the U.S. Army Corps of Engineers from changing the Missouri River's flow. As the reader's email explains, "a tremendous fight is going on over whether the Corps of Engineers should change the river's flows to encourage animal propagation. Farmers and boosters of the barge industry and recreational interests strongly oppose any change, saying they would be harmed. Environmentalists support the change, saying the river has been converted into a drainage ditch sapped of ecological vitality." The reader advises that the appeal is "of great interest to" those living in "states along the Missouri River." The reader also provided this link to recent coverage of the appeal in The Omaha World-Herald newspaper. And, here's an editorial about the case published in today's edition of that newspaper. U.S. SUPREME COURT GETS NEW IN-HOUSE COUNSEL: law.com's U.S. Supreme Court correspondent Tony Mauro has an interesting article on attorney Scott Harris, who on June 10, 2002 assumes the post of Counsel to the Supreme Court of the United States. What does that job entail? Read all about it here. NEW NINTH CIRCUIT NOMINEE: President Bush has nominated Jay S. Bybee, who currently holds the very important job of assistant attorney general heading the Department of Justice's Office of Legal Counsel, to serve on the U.S. Court of Appeals for the 9th Circuit. The Recorder, via law.com, offers this report on the nomination. Posted at 22:00 by Howard Bashman IN TODAY'S EDITION OF THE LOS ANGELES TIMES: U.S. Supreme Court correspondent David Savage summarizes the important cases still awaiting decision this Term on the Court's docket. Those rulings are expected by late June 2002. An op-ed contributor criticizes California's U.S. Senators for blocking conservative judicial nominees. And, the author of a letter to the editor recounts her experience attending jury duty on the day of the courthouse shooting that led to last week's California Supreme Court decision limiting government liability for that occurrence. You can access my posting on that decision here. Posted at 12:13 by Howard Bashman SCIENTIFICALLY RELIABLE EVIDENCE, part 2: In a posting last week, I mentioned the difficulty a highly regarded Philadelphia-based federal trial judge experienced in determining whether expert fingerprint comparison testimony was of sufficient scientific reliability to be admitted in a criminal trial. Today's edition of The New York Times contains an article which reports, not surprisingly, that federal trial courts have reached differing conclusions on the scientific reliability of handwriting analysis evidence. I am advised that these developments have caused believers in the scientific reliability of phrenology to become quite concerned. Posted at 10:10 by Howard Bashman Saturday, May 25, 2002
ALBERTO R. GONZALES -- White House Counsel, former Texas Supreme Court Justice, and leading candidate to be the first Hispanic nominated to serve on the U.S. Supreme Court -- is the subject of an interesting profile in the May 27, 2002 issue of The New Republic. You can access the article here.
WHAT REALLY HAPPENED AT SHOREWOOD HIGH SCHOOL: For one thing (as Justice Breyer might write), protestors did not prevent Chief Justice Rehnquist from receiving an award from his high school alma mater. For another (as Justice Breyer might also write), the Milwaukee Journal Sentinel was there to report on events. You can read its news coverage of the Chief Justice's appearance here. OXBLOG has an excellent post about the very touching article that runs in tomorrow's New York Times chronicling the final communications received from those who had the horrible bad fortune to be on the floors above where the airplanes struck towers one and two of the World Trade Center last September 11th. Words simply cannot describe the sorrow and anger that the article justifiably will provoke. Posted at 22:12 by Howard Bashman GETTING TOO MUCH SLEEP?: Holiday weekends are a fine time to catch up on one's sleep. If you find yourself getting too much sleep, however, be sure to check out the cover story of this Sunday's New York Times Magazine. It is entitled "Nuclear Nightmares--Not if but when," and it addresses various nuclear terrorism scenarios that could occur in the USA. Correspondent/columnist Bill Keller is the author. After reading this article, you may never sleep worry-free again. What to do with that extra awake time? An essay/book review in today's New York Times suggests that we should take a moment to embrace our own stupidity. Why should everyone admit to being stupid? Denying it, the essay states, would be sheer stupidity. Posted at 14:04 by Howard Bashman HEY NINTH CIRCUIT: Here's how the editorial board of The New York Times thinks you should rule in the medical marijuana/free speech case currently pending before you. Surprisingly, the editorial entirely overlooks the U.S. Supreme Court's ruling last term in United States v. Oakland Cannabis Buyers' Cooperative, where the High Court (pardon the pun) held that patients currently have no right to obtain marijuana for medical uses. Thus, while there certainly is a First Amendment component to the pending Ninth Circuit appeal that is the subject of today's NYT editorial, doctors who advise patients to acquire marijuana for medicinal use are, in effect, advocating the commission of a crime by their patients. And that, ironically, takes us full circle back to the Ninth Circuit's 6-5 en banc ruling in the so-called Nuremberg Files case. (Click here and here for my postings of last week discussing that decision.) Posted at 13:46 by Howard Bashman Friday, May 24, 2002
HOLIDAY WEEKEND ROUND-UP: Free speech; free silence (so long as you don't count the attorneys' fees); the judicial candidate whom The Wall Street Journal is promoting now; a different view on courthouse security from a reader; and another record-breaking day.
Free speech: The student protestors who caused the cancellation of Chief Justice William H. Rehnquist's speech at his high school alma mater today (see my posting from earlier today) likely missed out on a very interesting talk. The Chief Justice can be both charming and quite funny in his public appearances. The C-SPAN program "America & the Courts" provides a Web feed (using Real Player) of a profile of the Chief Justice, and the profile includes clips from various of his speaking appearances. As of this moment, though, the link is not working. You can try again later by clicking here and then clicking again on the link for the profile of the Chief Justice toward the bottom right of the "America & the Courts" Web page. One of the obviously very intelligent contributors to OxBlog takes issue with my characterization of today's events as involving the freedom of speech. I don't entirely disagree with Josh Chafetz's post. (How could I? He calls my site "excellent.") Obviously, the Chief Justice's public remarks were cancelled to avoid what probably would have been an embarrassing protest during what was supposed to be an event in his honor to present him with the school's first Tradition of Excellence Award. He could have spoken and endured the protestors, but either the school or the guest speaker (or both) elected not to go that route. My point, though, is that there is no reason why the protestors, to be effective, had to promise the disruption of the Chief Justice's remarks. They could have protested nearby, but outside of the auditorium, and anyone who sided with the protestors' views could have attended the protest rather than the Chief Justice's speech. In this ever diminishing world of ours, there remains more than adequate space (as the Blogosphere exemplifies) for all speakers to be heard without encroaching upon (or drowning out) one another. In this sense, then--by unnecessarily threatening to use their free speech rights in a way that caused someone else not to speak--the protestors engaged in action that diminished the listener's right to hear from his or her preferred speaker. Free silence (so long as you don't count the attorneys' fees): Today Pennsylvania's Commonwealth Court issued a five-page opinion that should not be overlooked. An individual whom authorities had charged with interfering with the hunting of wildlife (he was acquitted of that charge) was convicted of the summary offense of refusing to produce identification to a Pennsylvania Wildlife and Game Commission Officer. The court held that because the defendant was not engaged in any unlawful activity at the time of the refusal--in fact he was at his house, where the officer had sought him for questioning--the defendant had no legal obligation to speak with or identify himself to the officer. Unfortunately for the defendant, both a district justice and a common pleas court judge had found him guilty of violating the law, which states: "When an officer is in the performance of any duty required by this title, it is unlawful for any person to resist or interfere in any manner or to any degree or to refuse to produce identification upon request of the officer. A violation of this section is a summary offense of the first degree." The Commonwealth Court's ruling not only overturned the defendant's conviction but also held that the statute was facially unconstitutional under the Fourth Amendment to the United States Constitution. So, in Pennsylvania, the right to freedom of silence remains, although that freedom, to be vindicated, may require the expenditure of a sizeable amount of attorneys' fees. The judicial candidate whom The Wall Street Journal is promoting now: In Friday's edition, The Wall Street Journal's editorial page called on the U.S. Senate to move forward on President Bush's nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. You can access the editorial here. I, too, have previously praised Mr. Estrada's qualifications for a seat on that court (see the bottom of this linked article). The D.C. Circuit now has a total of four active judge vacancies, and President Bush has so far nominated two very highly qualified appellate advocates to serve on that court. A different view on courthouse security from a reader: I received the following email from a reader in response to my post of last night advocating increased courthouse security for Pennsylvania's appellate courts: "I would like to encourage you to rethink your advocacy of airport-style security screening for courthouses. These systems are expensive, waste everyone's time, place an artificial barrier between the public and their judicial system, and provide only an illusory sense of security. * * * "When people call for costly new programs, they seem to forget that financial resources are limited. At the time the Los Angeles County Courthouse screening system was implemented, subscriptions to legal research materials for the judges' chambers were cancelled and budgets for judicial travel and continuing education were severely curtailed. I'm all for blind justice, but not ignorant justice. Perhaps it would have been better to fund the security system by cutting back on indigent medical care, forgoing the planned update of the County's 911 system, or raising sales taxes during the local recession? "Your clients may be happy to let you bill them for the time you are queued up waiting in line to show the contents of your briefcase and wallet, especially in the morning and after the lunch recess. Or perhaps your bench officers don't mind if you stroll in late. If so, consider yourself unusually lucky. To those who argue that it is fine to trade off some time for increased safety, I would like to observe that limiting freeway speeds to 25 miles per hour would surely save more judges lives than implementing courthouse screening systems. "As we lawyers work to make the courthouses our exclusive domain, we wonder why the public is slowly defunding the courts. Increasing judicial salaries, creating additional judgeships, or even upgrading courtrooms to handle new technologies, are political nonstarters in the state legislatures. Courthouses no longer provide the civic education and public entertainment functions that they once did. Rather than tell the public: 'Welcome. This is your justice system. and Thank you,' mass screening systems say: 'We assume you are a criminal. and You probably shouldn't be here anyway.' * * * "I do not recall any instances in California of a judicial officer killed in a courthouse * * * . There were, however, several judges who appeared to have been assassinated at home. If the goal is to protect judges, lawyers, and the public in our courthouses, there are other policies far more effective than courthouse entrance screening. These include: subtle architectural modification of the bench, enhanced bailiff training, firearm training for bench officers, allowing criminals to understand that concealed carry permit holders will not be disarmed or identified in the courtroom, resources for off-premises judicial protection, better awareness and tracking of violent offenders, and, yes, wanding or other weapons screening for certain criminal and family law courtrooms." This reader's thoughtful and insightful email hasn't caused me to change the views that I expressed last night, but these ideas and opinions certainly do merit consideration. And that's why I've quoted the most pertinent parts of that email here. Finally, today was another record-breaking day: Thanks so much to Glenn Reynolds of InstaPundit.Com (sometimes also now known by the catchy title http://64.247.33.250) for his two links to my site today. Thanks, once again, to Eugene Volokh of The Volokh Conspiracy for his mention today. Thanks also to OxBlog, PejmanPundit, EveTushnet.com and everyone else who has found "How Appealing" worthy of mention. Until next time, I wish you, my readers, all the best. Posted at 23:16 by Howard Bashman GET READY NINTH CIRCUIT: The U.S. Department of Justice has appealed from an Oregon federal district court's ruling that rejected the federal government's challenge to Oregon's voter-approved assisted suicide law. (You can access the trial court's rulings here and here. The trial court's opinion was none too kind to the feds.) You can read a news story reporting on the federal government's appeal here. Can we infer anything from the fact that this hit the news on Friday evening before a holiday weekend? And, could another 6-5 en banc Ninth Circuit ruling be lurking not too far around the corner here? Just after the trial court's ruling issued approximately one month ago, The Portland Oregonian ran this story on the possibility of an appeal by the federal government to the Ninth Circuit. Posted at 20:50 by Howard Bashman FREEDOM OF SPEECH?: Protestors today caused the high school alma mater of Chief Justice William H. Rehnquist to cancel an assembly at which the Chief Justice was to receive the school's very first Tradition of Excellence Award. The group protesting the award called itself "Ad Hoc Coalition Protesting the Rehnquist Award." The Associated Press has this report. Posted at 16:17 by Howard Bashman THE DAY AFTER: Yesterday, the Senate Judiciary Committee voted 12-7 to approve the nomination of D. Brooks Smith to serve on the U.S. Court of Appeals for the Third Circuit. You can access press coverage on yesterday's vote here, here, here, here and here. Also yesterday, in advance of the vote, The Los Angeles Times ran this editorial entitled "Payback Game Over Judges." I can't provide a link to coverage from the nominee's hometown newspaper, The Altoona (Pa.) Mirror, because it doesn't post its articles to the Web. A reader emailed yesterday to ask whether I thought that Chief Judge Smith, during his nearly fourteen years as a federal district judge, has been reversed in an unusually large number of cases. The number of times that a judge has been reversed is not as important as the reasons why a judge has been reversed. I have not undertaken to review the cases in which Judge Smith has been reversed to evaluate those reasons, but everyone should be very encouraged by the report in today's edition of The Legal Intelligencer that Third Circuit Chief Judge Edward R. Becker has taken a look at those reversals and found no reason for concern. One cannot find anyone smarter, more thorough or more hardworking in the entire federal appellate judiciary than Judge Becker, and his evaluation makes it unnecessary for me to conduct my own. As I have previously explained, the Judiciary Committee's action yesterday is good news for both the Third Circuit and litigants who have cases on appeal there. I have no doubt that Judge Smith is qualified to serve on that federal appellate court, and the Third Circuit badly needs the assistance of an additional active judge at this time. Posted at 14:00 by Howard Bashman IT'S OK FOR PRISONS TO PROHIBIT SPERM SHIPMENTS TO PRISONERS' WIVES, SHARPLY DIVIDED EN BANC 9TH CIRCUIT RULES: To access the opinions of the eleven-judge en banc panel, which split 6-5 in this case, click here. The 9th Circuit decided this matter yesterday. Posted at 06:17 by Howard Bashman Thursday, May 23, 2002
TONIGHT, SOMETHING FOR EVERYONE: A look at today's reader mail; securing our nation's courthouses; electing state court appellate judges; in today's court rulings, one that's not quite all there; see who qualifies as "feeder judges" for U.S. Supreme Court clerkships; and, finally, wow what a day today was!
Today's reader mail: The following quotations are taken directly from today's reader mail. 1. "You really do run an excellent blog." 2. "I followed Eugene Volokh's link to your site, and enjoyed reading it very much. Your writing is accessible for non-lawyers, and certainly balanced and useful for lawyers." 3. "Just found your site today via Volokh- I imagine I will be coming here quite a bit. Even as a non-lawyer your site really intrigues me." 4. "I suspect you'll find that you've got an increasingly popular blog on your hands (I've already sent the link to a number of people), and I congratulate you on it." 5. "Hello. I recently discovered your excellent blog and thought I'd introduce myself." 6. "Hello from Omaha. Congratulations on your blog. Great stuff." Thanks to all who have written and to the many, many hundreds of others who visited today. My email address is appellateblog -at- hotmail.com. You keep reading and I'll keep writing. Securing our nation's courthouses: Earlier today, I posted an item about a woman who was shot dead by her husband inside a California county courthouse. That tragic occurrence has caused my thoughts to return, once again, to the important subject of courthouse security. In the federal court system, courthouse security is a top priority. This afternoon I had to attend a meeting with a judge in Philadelphia's federal courthouse, and before I could gain admission to the building I had to pass through a metal detector and have my possessions scanned through an x-ray machine much like you would see at an airport. In Pennsylvania's state court system, however, courthouse security is far from uniform. In fact, what is most distressing to me as an appellate lawyer is the current absence of any security screening at oral argument sessions for the Pennsylvania Supreme Court, the Pennsylvania Superior Court and the Pennsylvania Commonwealth Court, the three state appellate courts in Pennsylvania. For an attorney or member of the public to gain admission to the Court of Common Pleas of Montgomery County, Pennsylvania -- a trial court -- he or she must pass through a metal detector and have his or her possessions x-rayed. For an attorney or member of the public to gain admission to a state appellate courtroom in Pennsylvania, just walk right in -- no security screen exists. Given the great admiration that I possess for the fine men and women serving as Pennsylvania state appellate judges, this absence of security strikes me as intolerable. These judges are already overworked and far underpaid; the least we can do is provide them with adequate security to guarantee their safety. Please, Pennsylvania, provide adequate security for your state's appellate judiciary and courtrooms immediately. Electing state appellate court judges: And, speaking of Pennsylvania's state appellate judiciary, now that the citizens of Pennsylvania have chosen the two major party candidates who will vie for the governorship in the fall, I would like to know the candidates' position(s) on whether Pennsylvania should continue its practice of electing state court appellate judges. I have expressed my views on this practice previously, in the September 2001 installment of my monthly appellate developments column, and I won't extend tonight's post by repeating those views here. Former Pennsylvania Governor Tom Ridge, who left Pennsylvania to secure our homeland, was a major proponent of abolishing elections for Pennsylvania's state appellate court judges. He failed in that effort. If you know the position(s) of Mike Fisher and/or Ed Rendell on this issue, please send me an email and tell me what you know. In today's court opinions, one that's not quite all there: I have never had any problem using Adobe Acrobat to transform my Microsoft Word document into PDF files. Others, however, do not seem to have been as fortunate. Consult, for example, this non-precedential decision that the U.S. Court of Appeals for the Third Circuit posted today to its Web site. The opinion isn't all there. Something is amiss. How long will it take to fix this? Stay tuned and we'll see. Who qualifies as "feeder judges" for U.S. Supreme Court clerkships?: Let's say, hypothetically speaking, you're a certain midwestern public law school from a state that happens to have an upper peninsula. Your thoughts right now might be turning to the Supreme Court of the United States, where your attorneys likely will be seated at respondent's table in several months. And, perhaps you'd be wondering where those exceptionally bright law clerks to the Justices worked before they reached the High Court. Fortunately, you can find some very relevant information right on your very own Web site. Click here to see a list of the federal court trial and appellate judges whose law clerks have gone on to clerk for U.S. Supreme Court Justices from 1989 through 1999. Wow, what a day today was!: Thanks to Professor Eugene Volokh and his excellent blog, The Volokh Conspiracy, this very site that you are now reading has experienced approximately 1,000 page views in the past 24 hours. I join him in saying "wow" to that. Another blog site with quite a bit of interesting law-related posts is entitled "The Sound and Fury," written by Max Power. He posted this on his site earlier today: "IF I CAN'T BE Eugene Volokh or Glenn Reynolds when I grow up, Howard Bashman would be a pretty nifty alternative career path. And he's got an equally nifty blog, plus shares my fandom of Judges Easterbrook and Posner." That's very kind of you to say, Max. Also today, the Senate Judiciary Committee approved the nomination of D. Brooks Smith to the Third Circuit. Here's a link to the story that runs in Friday's edition of The Legal Intelligencer. The article also explains that the nomination has the enthusiastic support of Third Circuit Chief Judge Edward R. Becker. The Associated Press's account of the vote explains that North Carolina Democratic Senator -- and likely presidential candidate -- John Edwards explained that he voted in favor of Smith because he believed Judge Smith would not let his personal views affect his judgment. Coincidentally, this blog made precisely this same argument with respect to judicial nominees one week ago today. Posted at 20:48 by Howard Bashman ONE LARGE STEP CLOSER: The Senate Judiciary Committee has just voted 12-7 to approve the nomination of D. Brooks Smith to serve on the U.S. Court of Appeals for the Third Circuit. According to this article just posted to The National Review's Web site, three Democratic Senators -- Delaware's Joseph Biden, Wisconsin's Herb Kohl, and North Carolina's John Edwards -- joined with the committee's nine Republicans in voting in favor of the nomination. The nomination will now have to be brought before the full U.S. Senate for a vote. Once that vote is scheduled -- it won't be happening today-- I will let you when it will take place. Posted at 11:55 by Howard Bashman UM, AREN'T YOU BASED IN THE D.C. CIRCUIT? Today The Washington Post's editorial board joins the editorial board of The New York Times (which weighed in on the subject yesterday) in urging the Senate Judiciary Committee to reject President Bush's nomination of D. Brooks Smith to the U.S. Court of Appeals for the Third Circuit. You can read the Post's editorial here. Anyone interested in my views on this subject can consult my posting of last night, which you can reach by clicking here. Posted at 10:38 by Howard Bashman FEEL SAFE NOW?: Individuals killed by a private person inside of a state courthouse have no stronger claim against the county and the local sheriff's department than individuals killed on the sidewalk in front of the courthouse, the Supreme Court of California ruled this week. You can access the opinion here. The Associated Press is offering a report on today's Senate Judiciary Committee vote on Third Circuit nominee D. Brooks Smith. You can access that report courtesy of The New York Times at this link. Posted at 10:25 by Howard Bashman Wednesday, May 22, 2002
A VERY SPECIAL THANK YOU to UCLA Law Professor Eugene Volokh, currently the most active contributor to one of my favorite blogs, The Volokh Conspiracy, for his extraordinarily kind words this evening. Every nice thing he said about my site goes double for his. Plus, now that I've been endorsed by a leading proponent of the individual rights view of the Second Amendment, I'm starting to feel much more secure.
Posted at 23:21 by Howard Bashman
HERE AND THERE: It was a rather quiet day today in the appellate courts that I regularly monitor. The U.S. Court of Appeals for the Third Circuit posted no precedential or non-precedential opinions to its Web site today. With apologies to anyone who thought that the Pennsylvania state appellate courts issued one or more interesting decisions today, the Pennsylvania state appellate courts issued no interesting decisions today. Over in the Seventh Circuit, Judge Posner issued an opinion in a rather mundane construction contract case that was argued over six months ago. That opinion, before concluding, does a nice job of explaining when a contract between party A and party B would permit non-party C to sue as a third-party beneficiary. The opinion also clarifies the distinction between an express contract, an implied contract, and an action for restitution, the last of which he notes is sometimes "confusingly called in this context 'quasi-contract' or 'contract implied in law.'" The ability of Seventh Circuit Judges Posner, Easterbrook and Evans to explain clearly even the most difficult legal principles is what causes that jurisdiction to be high on my list as a source for legal authority regardless of where an appeal on which I am working is pending. Ironically, the most newsworthy appellate decision that came to my attention today was a ruling issued yesterday in the media capital of the world. The U.S. Court of Appeals for the Second Circuit yesterday issued a decision that affirmed the ruling of the U.S. District Court for the Eastern District of New York that New York state's kosher fraud statutes violate the First Amendment's establishment clause because the statutes excessively entangle the state with religion and impermissibly advance orthodox Judaism. You can access the Second Circuit's decision here. I was thinking about making this decision my lead item tonight and perhaps including a humorous reference to the Hebrew National slogan which states that the company answers to a higher authority than the government, but the Second Circuit beat me to it on the very first page of its opinion. Instead, I'm simply left to express my amazement that this decision issued yesterday in New York City but didn't receive any significant press coverage until today. UCLA Law Professor Eugene Volokh today added an interesting posting about the decision to his law blog, and you can access that posting by clicking here. The U.S. Senate's Judiciary Committee is scheduled tomorrow morning to vote on President Bush's nomination of Chief District Judge D. Brooks Smith of the U.S. District Court for the Western District of Pennsylvania to join the U.S. Court of Appeals for the Third Circuit. Given the attention that nomination has been receiving, it is possible that C-SPAN may provide coverage of the session. You can access C-SPAN's video and audio feeds over the Internet through its Web site, www.cspan.org. I'll try to provide updates tomorrow as developments merit. The Third Circuit over the past several years has admirably managed to cope with its heavy workload despite two active judge vacancies, but now that three active judge vacancies exist, the struggle to keep current and yet give each case the thorough attention that justice requires becomes all the more difficult. I have no doubt that Chief Judge Smith would serve with distinction on the Third Circuit, and it would be a shame for all of the active and senior judges who are now working so hard to keep current with their caseloads if the nomination were defeated simply because of perceived political disagreements between the nominee and the Democrats who make up a majority of the senators on the committee. The Judiciary Committee's Web site contains an interesting score-card on the status of pending nominees to the nation's federal appellate courts, and you can access that listing here. Later in the day tomorrow, the Judiciary Committee will hold initial hearings for various other federal judicial nominees, including Eighth Circuit nominee Lavenski R. Smith and Eastern District of Pennsylvania District Judge nominee Timothy J. Savage. In case you were wondering when more opinions will likely issue from the Supreme Court of the United States, that Court retakes the bench next on Tuesday, May 28, 2002 (Monday, May 27, 2002 is the federal holiday Memorial Day), and more opinions are expected then. Posted at 20:49 by Howard Bashman UM, AREN'T YOU BASED IN THE SECOND CIRCUIT?: Today's lead editorial in The New York Times calls on the U.S. Senate's Judiciary Committee to reject President Bush's nomination of D. Brooks Smith to fill a Third Circuit vacancy that has existed for nearly three years. No mention is made of the fact that the Third Circuit today has only eleven of its authorized fourteen active judges. No mention is made of the fact that no nominations have yet been made to fill the other two Third Circuit vacancies (one of which just arose). No mention is made of the fact that the odds are quite small that President Bush will nominate for these federal appellate court vacancies candidates who share The Times's political agenda. Posted at 16:06 by Howard Bashman INFORMATION CHER - ING: Having granted review in the blockbuster case of Eldred v. Ashcroft, the Supreme Court of the United States next Term will decide the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998. A very helpful Web site (www.eldred.cc) provides an excellent set of resources about the case. Included there is a page that provides access to many of the briefs that are being filed in the case. It even contains a link to the amicus brief filed two days ago in the Eldred case by good friend, and highly successful U.S. Supreme Court advocate, Roy T. Englert, Jr. Posted at 08:09 by Howard Bashman Tuesday, May 21, 2002
FINGERPRINTS vs. NO FINGERPRINTS: Fingerprints. Early this year, Senior District Judge Louis H. Pollak of the U.S. District Court for the Eastern District of Pennsylvania caused quite a stir when he issued an opinion in a criminal case holding that "no expert witness for any party will be permitted to testify that, in the opinion of the witness, a particular latent print is--or is not--the print of a particular person." You can access Judge Pollak's original opinion here. The federal government was stunned by this ruling and sought reconsideration. Two months later, in March 2002, after agreeing to reconsider his ruling and after holding a live evidentiary hearing to consider the testimony of fingerprint comparison experts, Judge Pollak vacated his earlier ruling and entered an order that allowed "the presentation of expert fingerprint testimony by the government, and the presentation of countering expert fingerprint testimony by any of the defendants." You can access Judge Pollak's opinion on reconsideration here.
How did this become newsworthy once again today, some two months later? The New Yorker magazine, in its issue of May 27, 2002, has an article that takes a close look both at the reliability of fingerprint evidence and at Judge Pollak's two rulings. The article's author, Michael Specter, even includes an interview that he conducted with Judge Pollak about how so many federal judges have backgrounds that make them poor candidates to screen scientific evidence for adequate reliability. You can access The New Yorker's article, entitled "Do Fingerprints Lie?," at this link. No fingerprints. That's what non-precedential (also known as "unpublished") appellate opinions leave behind. As you already know if you're a regular reader of my monthly column on appellate developments published in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, I'm not a fan of non-precedential appellate opinions. (See here, here, and here to learn more.) In my view, the U.S. Court of Appeals for the District of Columbia Circuit, in its 2002 revisions to its local rules (see, in particular, page 102 of this PDF file), arrived at the right answer. All decisions issued there on or after January 1, 2002, whether published or unpublished, will be binding precedent on the court, but the court will continue to try to use unpublished opinions only in cases that, in the views of the participating judges, lack precedential value. So, in the D.C. Circuit today, there should be no reason to cite unpublished opinions, but if the court is wrong in its prediction of precedential value, the court will be bound even by an unpublished ruling. As an appellate lawyer who represents actual appellate clients, I do not allow myself to confuse "how it is" with "how it should be." Thus, when it is my client that wins an appeal by means of an unpublished opinion, I could not be more happy for the client, because the designation of that victory as "unpublished" causes the victory to have virtually no chance of being overturned on rehearing or being reviewed by a higher court. Why would an appellate court rehear en banc a ruling that the original three-judge appellate panel has designated as non-precedential and entirely uncontroversial? My thoughts exactly. Yet, today through Friday, I will be (among other things) preparing an answer in opposition to my adversary's petition for reargument, pending in the Superior Court of Pennsylvania, that seeks to challenge an unpublished, non-precedential, unanimous decision of that court in favor of my client. So it sometimes goes in the glamorous world of appellate litigation. Finally tonight, thanks to fellow law blogger Eric C. Hallstrom for stating in his weblog that "How Appealing" is a place to turn for a "quality, informative breakdown" of newly issued U.S. Supreme Court rulings. As Yoda might say, "try I do." Posted at 20:44 by Howard Bashman FRIEND OF THE COURT: The Third Circuit's Web site this afternoon has posted a non-precedential, single-judge decision written by Circuit Judge Samuel A. Alito, Jr. that resolves a contested motion for leave to file a brief amicus curiae. You can access the decision here. To summarize, Judge Alito believes that the federal appellate courts should take a more permissive view in favor of allowing amicus briefs than certain other federal appellate courts--most notably the Seventh Circuit--have taken. In these two opinions written by Seventh Circuit Judge Richard A. Posner, that court has taken a dim view of the usefulness of amicus briefs and has, at least in these cases, refused to permit them. As long-time readers of this blog know well, I am a huge fan of Judge Posner. But, on the amicus brief issue, I think that Judge Alito has reached the correct result. Better to err on the side of allowing amicus briefs in those few federal appellate court cases in which such briefs are sought to be filed than to spend the time reviewing a proposed amicus brief with a jaundiced eye favoring rejection. If the brief turns out to be useless--and take it from me, if only appellate courts could reject at the filing stage parties' briefs when they are useless(!)--then the court is free to ignore the brief. That, after all, is what happens when a party's brief proves useless. Posted at 16:32 by Howard Bashman Monday, May 20, 2002
YOUR LIBRARY BOOK SWIMS WITH THE FISHES ON SUNDAY: Tonight, How Appealing looks at this morning's crop of three new U.S. Supreme Court opinions, a case from the Second Circuit in which the High Court granted review this morning, and opinion-writing for new judges (a/k/a "the Dog").
Opinions in two criminal cases and in the Court's other Verizon case issued today. Thankfully, today's Verizon decision wasn't 104 pages long and didn't directly address the substance of telephone regulation, decreasing the chances that this post will revisit the meaning of Bollywood (but see here). Because today's Verizon decision will be of interest only to those attorneys who enjoyed taking "Federal Courts" in law school (don't fret, that group includes me too), I'll save that summary for last. Fans of opinion-writing for new judges (a/k/a "the Dog") should persevere through that segment, to reach tonight's grand finale. Criminal defense attorneys hoping to wring as much benefit as conceivably possible out of the Court's unexpected ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), were dealt a severe blow by the Court today. In a unanimous decision, the Court ruled in United States v. Cotton, No. 01-687 (U.S. May 20, 2002), that defendants who did not object to Apprendi-type errors before Apprendi issued (and few did) had to make the extraordinarily difficult showing of plain error to obtain reversal. Thus, even though the indictment in defendant Cotton's case did not charge that he possessed more than 50 grams of crack cocaine, and even though the jury made no such finding, the trial judge was permitted to sentence the defendant to serve up to life in prison based on the trial judge's own finding of that drug quantity because the undisputed evidence showed that the defendant was involved with way, way more than 50 grams of crack. Because "the error did not affect the fairness, integrity, or public reputation of judicial proceedings," the defendant's failure to raise any Apprendi-type objection until his case was pending on appeal proved fatal, even though the Supreme Court didn't announce its ruling in Apprendi until this defendant's case was pending on appeal. In so holding, the Supreme Court reversed the Fourth Circuit's ruling, below. What was bad news for the Fourth Circuit, though, was excellent news for the Third Circuit. The High Court's ruling in Cotton reached the exact same result that the Third Circuit reached en banc, by the slimmest of margins (7 to 6), in United States v. Vazquez, No. 99-3845 (3d Cir. Oct. 9, 2001). In my 2001 Third Circuit en banc round-up column, I had predicted that the government likely would win Vazquez by a decisive margin. Today's unanimous U.S. Supreme Court ruling on this issue demonstrates that maybe my projected outcome wasn't too far off the mark after all. The Court today issued another opinion that also involved the criminal law, but this case was not quite as unanimous. By a 5-4 vote (with Justice O'Connor siding with the four Justices who are viewed as more liberal), the Court held in Alabama v. Shelton, No. 00-1214 (U.S. May 20, 2002), that a defendant who is charged with a criminal offense that may result in a suspended sentence must receive the assistance of court-appointed counsel at trial if the defendant cannot afford to hire a lawyer. According to the High Court, Pennsylvania is one of a minority of states that does not already provide state-sponsored defense attorneys in these sort of misdemeanor cases. Justice Ginsburg wrote the majority opinion, and her former D.C. Circuit colleague, Justice Scalia, wrote the dissent. Justice Ginsburg's opinion for the Court notes in footnote 10 on page 14 of the official slip opinion that in Pennsylvania, only a few summary offenses expose defendants to suspended sentences of 90 days' imprisonment without the assistance of court-appointed counsel. And what are those offenses, you wonder? Failing to return a library book within 30 days, and fishing on a Sunday, of course. Justice Scalia's dissent observes, in response, that under Pennsylvania law when a library book is not returned within 30 days because it was accidentally dropped into a lake during a Sunday fishing expedition, the defendant is afforded counsel because Pennsylvania law mandates a five-year sentence. (O.K, that last sentence is entirely made up.) But what is true is that Pennsylvania will now need to provide more court-appointed defense lawyers than it currently does, and somebody (i.e., the taxpayers of this Commonwealth) will be required to foot that bill. For you fans of "Federal Courts" class in law school, the High Court's ruling today in Verizon Maryland Inc. v. Public Service Commission of Maryland, No. 00-1531 (U.S. May 20, 2002), addresses federal question jurisdiction under 28 U.S.C. sec. 1331 and the Ex parte Young "exception" to the Eleventh Amendment. Not quite as dry as last Monday's Verizon opinion involving telephone regulation, but close. At this rate, in about ten more years the Court is bound to have a quite interesting Verizon decision. Please wake me when it arrives. The Court granted cert. today in the aptly named Connecticut Department of Public Safety v. John Doe, No. 01-1231 (U.S.). Under Connecticut's version of Megan's Law, that state hosts on its Web site a registry of convicted sex offenders containing those individuals' names, addresses, photographs and physical descriptions. Not surprisingly, some of these persons didn't like that extra notoriety, so they brought suit in federal district court in Connecticut. The trial court enjoined the public release of that information, and the Second Circuit affirmed. In essence, the Second Circuit held that "the plaintiff and the members of the due process class are entitled to the opportunity to have a hearing consistent with due process principles to determine whether or not they are particularly likely to be currently dangerous before being labeled as such by their inclusion in a publicly disseminated registry." I'm going to go out on a limb and predict that the U.S. Supreme Court will reverse the Second Circuit's ruling, either by a 5-4 or 6-3 margin. The Solicitor General of the United States filed an amicus brief in support of Connecticut's petition for writ of certiorari, and you can access that amicus brief here. Speaking of cases heading to the U.S. Supreme Court, Slate.com legal correspondent and all-around excellent writer Dahlia Lithwick had this to say about the Sixth Circuit's ruling in the University of Michigan Law School race-based admissions preferences case. Finally, did you know that many new judges attend "judge school" where, as part of the curriculum, there are courses that teach how to produce well-written judicial opinions? Because so many lawyers don't write very well, and because judges are drawn from the population of lawyers, it's no surprise that not every judge is an excellent writer. One of the stylistic idiosyncrasies that lawyers seem to adore is defining parties' names in parentheses with quotation marks, even though this tends to get in the way of comprehension and thus prevents good writing. You could be reading a brief in a lawsuit involving only one plaintiff, and only the plaintiff is named Richardson, yet the lawyer's brief would read: 'Plaintiff Timothy Richardson (hereafter "Richardson" or "the Plaintiff") was driving down the Interstate 95 (hereinafter "the Road" or "I-95") . . . .' You get the idea, I'm sure. Well, thanks to this opinion that issued today from Pennsylvania's Commonwealth Court, you have the pleasure of meeting "the Dog." Perhaps if everyone had previously shown the canine this high level of respect, he would have attacked and bitten fewer people? Posted at 20:50 by Howard Bashman SLOGANEERING: With Pennsylvania's primary election just one day away, thoughts here have turned to sloganeering. I've noticed that some law blogs have slogans or catchy quotes, but mine doesn't. Some possibilities: "Scrupulously observing the distinction between its and it's since 1980" (or similar slogans for their, there and they're (yes, I've corrected that there/their typo from a few days back) or affect and effect). Or, because this is a law related blog, perhaps something in Latin, such as the aspirational "omnia vincit amor," the functional "manus manum lavat," or the legalistic "cessante ratione legis, cessat et ipsa lex." Or, I could try to be clever, adopting a slogan such as "if you believe in telekinesis, raise my hand." Perhaps now you can appreciate why, on further reflection, I'm sticking with no slogan. How about a photo then? The instructions that would allow me to upload a photo of myself and link to it are quite complex, so that is all but out of the question. The Philadelphia Bar Association's monthly publication The Bar Reporter is everyone's favorite source for attorney photos in Philadelphia. The April 2002 issue of that publication ran a very oddly cropped photo of me taken at the Philadelphia Bar Association's Appellate Courts Committee meeting several months ago, and you can see it toward the bottom of page six of this PDF file. Posted at 08:15 by Howard Bashman Sunday, May 19, 2002
POINT, COUNTERPOINT, and what's the point: Monday's edition of The Legal Intelligencer contains three essays on the recent federal court challenge to Pennsylvania's Congressional redistricting effort. You can access them |