|
|
|
Thursday, October 31, 2002
Now available online at law.com: Law Professor Jonathan Turley has an essay in which he "celebrates" the sixtieth anniversary of the U.S. Supreme Court's opinion in Ex parte Quirin. And Evan P. Schultz considers several recent federal appellate court rulings that have begun to treat administrative hearings more like judicial proceedings.
Posted at 22:06 by Howard Bashman
Federal law that prohibits airlines from discriminating against disabled individuals doesn't allow the disabled to sue, Eleventh Circuit rules: The U.S. Court of Appeals for the Eleventh Circuit today ruled that the The Air Carrier Access Act of 1986 -- which prohibits air carriers from discriminating against disabled individuals -- does not create by implication a private right of action in a federal district court for a disabled individual alleging violation of that law's provisions. Rather, the court ruled, a disabled person must first complain to the Department of Transportation, which has the power to order an airline to comply with the law. Moreover, an individual "with a substantial interest" in the DOT's action may seek review of that action in a federal court of appeals. The Eleventh Circuit acknowledged that its ruling reaches a different result than the Fifth, Eighth, and Ninth Circuits have reached, but those conflicting rulings issued before the U.S. Supreme Court's most recent decision examining when it is appropriate to imply a private right of action. Posted at 21:23 by Howard Bashman Tenth Circuit affirms dismissal of suit brought by detective who claims she was unfairly criticized for her role in the JonBenet Ramsey investigation: You can access the Tenth Circuit's decision affirming the dismissal of the detective's suit against the City of Boulder, Colorado and two other defendants at this link. Posted at 21:12 by Howard Bashman Have the U.S. Supreme Court's Commerce Clause and federalism cases left you puzzled? For law students and others who are struggling to obtain a cohesive understanding of the U.S. Supreme Court's recent Commerce Clause and federalism rulings, today the Fifth Circuit has come to the rescue. Circuit Judge Jerry E. Smith provides a particularly cogent explanation of the current state of the law in this opinion, issued today, beginning at the bottom of page six. Posted at 21:01 by Howard Bashman Ruling on proposed antitrust settlement between Microsoft and U.S. government to issue late tomorrow: Declan McCullagh of c|net news.com has this report, and The Associated Press offers this coverage. According to the district court's notice issued today, the ruling is due to be released tomorrow at 4:30 p.m. eastern time and will be made available at this link. Posted at 20:36 by Howard Bashman An unethical attack on intermediate appellate judges, or no worse than what one sometimes finds in a Justice Scalia dissent? Law Professor Jeff Cooper reports, over on his blog, on a recent 3-2 ruling of the Supreme Court of Indiana that imposed a thirty-day suspension on a lawyer for a rather intemperate attack on the intermediate appellate court judges who delivered a ruling adverse to the lawyer's client. In dissent, a justice serving on Indiana's highest court wrote that the lawyer's assertion "seems to me no different from the attacks many lawyers and nonprofessionals have launched on many court decisions," and in support of that proposition the dissenting justice cited two opinions by U.S. Supreme Court Justice Antonin Scalia (including this one) in which Justice Scalia chided his colleagues on the Court who had disagreed with him. Posted at 20:13 by Howard Bashman The American Prospect offers two essays about Michael W. McConnell's Tenth Circuit nomination, pro and con: The essay in favor of the nomination is by Douglas Laycock and is labeled a "Web exclusive." The essay opposing the nomination is by Chris Mooney and appears in the November 4, 2002 print edition of the publication. Thanks to Law Professor Jonathan H. Adler for drawing these two items to my attention. Posted at 18:52 by Howard Bashman Supreme Court of Minnesota rules in Wellstone absentee ballot replacement matter: You can access the ruling at this link. Under today's ruling, which has issued without an opinion (although one is promised in the future), anyone who has voted by absentee ballot has the right to vote again if he or she chooses, and only the later vote is to be counted. Paragraph 4 of the ruling states: "If a voter casts a regular absentee ballot but does not cast an official supplemental ballot, the ballot shall be counted in the same manner as if the vacancy had not occurred." I'm not certain whether the quoted language means that if a voter has voted for Wellstone but does not re-vote, the vote for Wellstone will be counted as a vote for Mondale, the Democratic replacement. Time surely will tell. Update: According to this report from The Associated Press, "The ruling fell well short of what the Democrats wanted: throwing out all absentee votes already cast and mailing new ballots to everyone, whether they asked for a new one or not." Second update: The Ashbrook Center's blog, "No Left Turns," analyzes the Minnesota Supreme Court's ruling (and concludes that absentee votes for Wellstone won't count for Mondale), and Byron York, on National Review Online, says here that the ruling "might well become a recipe for confusion" that "could create new grounds for legal challenges after the voting." Posted at 18:27 by Howard Bashman Grutter v. Bollinger brief in opposition to petition for writ of certiorari now available online: The University of Michigan Law School's brief in opposition to certiorari in the case which challenges that school's use of racial preferences in student admissions is now available online here. Faithful readers of this blog know that I have previously expressed skepticism concerning whether any persuasive grounds exist on which the law school could oppose U.S. Supreme Court review of the Sixth Circuit's ruling in this matter. As soon as I have had the chance to read through the brief in opposition, I will post my views on it. You can access my original comments on the Sixth Circuit's ruling, posted on the day the ruling issued, at this link. Posted at 15:20 by Howard Bashman Dog eat dog: Well, actually it's more like mountain lion eats domestic livestock in the Santa Teresa Wilderness area in Arizona. Today the Ninth Circuit upheld a decision by the federal Animal and Plant Health Inspection Service to "perform lethal predator control of mountain lions" (hmm, sound so much more official and legalistic than "killing" them) to protect private livestock. You can access the Ninth Circuit's unanimous per curiam decision at this link. Posted at 14:20 by Howard Bashman Ninth Circuit upholds federal law that bars Exxon Valdez from Prince William Sound: A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today issued a decision that upholds a federal law barring the Exxon Valdez from operating in Prince William Sound, Alaska. Of course, as reported here, on March 24, 1989 the Valdez ran aground on Bligh Reef and "spilled nearly 11 million gallons of oil into the biologically rich waters of Prince William Sound." The Ninth Circuit's ruling today rejected arguments made by the owner of the Valdez that the law in question was an unconstitutional bill of attainder, that the law violated the Fifth Amendment's due process clause, and that the law was inconsistent with the Fifth Amendment's guarantee of equal protection. Posted at 13:47 by Howard Bashman An astonishing development, or just a small yet positive benefit of the amazing digital age in which we live? rc3.org daily, a Web log that focuses on matters of interest to software developers, takes note of a post that appeared on "How Appealing" last night. Update: Boing Boing also views my post from last night as worthy of mention. Second update: Appellate lawyer-blogger Denise Howell offers some interesting and very kind thoughts here, and a reporter from Wired News is hot on the trail of this story too, so stay tuned. And here's another very kind comment, this one from the blog "Southern Appeal." Posted at 10:36 by Howard Bashman Alabama fights for its right to ban sex toys: The Associated Press reports here that the State of Alabama has appealed to the U.S. Court of Appeals for the Eleventh Circuit from an Alabama federal district judge's recent ruling that declared unconstitutional the State's ban on the distribution of sex toys. (Link to AP article via Sam Heldman.) Update: Meanwhile, at Cornell University. (Link via InstaPundit.) Posted at 10:07 by Howard Bashman In today's Los Angeles Times: Today's edition of The Los Angeles Times contains this report entitled "Bush Urges Judicial Process Changes." And David G. Savage has an article that bears the headline "Sniper Case Touched by Death Penalty Politics, Lawyers Say." Posted at 10:00 by Howard Bashman In Thursday's newspapers: Both The New York Times (here) and The Washington Post (here) provide coverage of President Bush's proposal to make the judicial nomination and confirmation process more efficient. Charles Lane, friend of "How Appealing" and U.S. Supreme Court correspondent for The Washington Post, explains the Hobbs Act and its relevance to the federal government's prosecution in the DC-area sniper case. The NYTimes reports here on the lawyers for the two sniper suspects. The Christian Science Monitor contains an article which notes that a proposed constitutional amendment on Florida's ballot could lower that State's death penalty eligibility age from seventeen to sixteen. The NYTimes contains an editorial that praises yesterday's Ninth Circuit medical marijuana-doctor free speech ruling. Finally, in an online exclusive, NYTimes U.S. Supreme Correspondent Linda Greenhouse answers more questions from readers about the Nation's highest Court. Posted at 00:35 by Howard Bashman Wednesday, October 30, 2002
Today's Third Circuit en banc oral argument in the antitrust case of LePage's v. 3M: I had the pleasure of attending this morning's en banc oral argument before the U.S. Court of Appeals for the Third Circuit in the case of LePage's v. 3M, one of the most significant antitrust cases to come before the Third Circuit in quite some time. The attorneys for both parties did an excellent job, and fortunately for me The Legal Intelligencer's federal courts correspondent, Shannon P. Duffy, has a characteristically fine report already online about the details of today's argument. Thus, I am free to focus on the even more interesting marginalia.
Today's en banc argument marked the first appearance of D. Brooks Smith as a Third Circuit judge. It's nice to no longer have to precede mention of Judge Smith with the words "embattled nominee." Judge Smith's nameplate was ready, and he took his seat at the far left-hand side of the bench (or far right-hand side as viewed from the audience). After the judges took their seats, but before the argument began, Chief Judge Edward R. Becker welcomed Judge Smith to the Third Circuit, noted that Judge Smith had managed to start off with a big case (nearly $69 million in damages are at issue), and observed that Judge Smith knew how to attract a crowd. While that last comment could be understood as a reference to the crowds Judge Smith managed to attract before the Senate Judiciary Committee, I think that all that Chief Judge Becker meant was that the courtroom was packed for today's en banc argument. First, some background on today's case. LePage's sued 3M claiming that 3M exploited its monopoly in Scotch brand tape to harm LePage's ability to compete in the sale of private label tape. The jury found in LePage's favor on a Section 2 Sherman Act claim and awarded more than $22 million in damages, which after trebling approached $69 million. 3M then appealed to the Third Circuit, and a three-judge panel reversed and directed the entry of judgment in 3M's favor. Senior Circuit Judge Morton I. Greenberg wrote the panel majority opinion, in which Circuit Judge Samuel A. Alito, Jr. joined. Circuit Judge Dolores K. Sloviter dissented and would have affirmed the judgment against 3M. LePage's then sought rehearing en banc, which the Third Circuit granted. A total of ten judges sat on the en banc court today, because three active Third Circuit judges were recused. Attorney M. Laurence Popofsky of Heller Ehrman White & McAuliffe argued on behalf of appellant 3M. Popofsky is viewed as one of the Nation's leading antitrust litigators and is an experienced appellate advocate in antitrust matters. He did a fine job at the oral argument, yet it seemed as though Chief Judge Becker, Judge Sloviter, Judge Theodore A. McKee, and Judge Thomas L. Ambro were all leaning in favor of LePage's. 3M needs six votes to win en banc -- a five-five tie will result in the affirmance of the trial court's judgment in favor of LePage's -- and without a vote from Chief Judge Becker or Judge Ambro, it will be difficult for 3M to prevail. The funniest quote from Popofsky's presentation was when he referred to a since-overruled decision from the Ninth Circuit and said, "the Ninth Circuit, may it rest in peace." Attorney Roy T. Englert, Jr. of Robbins, Russell, Englert, Orseck & Untereiner delivered a truly first-rate oral argument on behalf of LePage's. A certain Third Circuit judge has said that Englert is the best oral argument advocate that judge has ever seen in many years on the bench, and today's oral argument showed why. Even though I personally don't find LePage's arguments as compelling as 3M's, I have no difficulty agreeing that Englert's presentation today was masterful. Both Englert and Popofsky relied heavily on the Areeda Antitrust Law treatise, and when Englert seemed to be using the treatise to greater advantage, Judge Greenberg snapped that "the Professor doesn't have a commission from the President." True enough -- Professor Areeda isn't a federal appellate judge nor is he likely to become one, because he died of leukemia on December 24, 1995 at the age of 65. Judge Greenberg engaged in several rounds of questioning with Englert from which Judge Greenberg obviously emerged thinking that Englert had conceded points fatal to LePage's case. Unfortunately for the panel majority, it did not seem as though four other judges are likely to sign-on to Judge Greenberg's view. During Englert's presentation, an observer sitting behind me and to my left said to someone sitting nearby, "this guy has an encyclopedic memory." When Roy argues a case, he does have an amazing grasp of the record and the key authorities. Two of the ten judges -- Richard L. Nygaard and Julio M. Fuentes -- said not a word during oral argument, so their views remain impossible to predict. But, based on everything that occurred at today's en banc oral argument, I am of the view that LePage's is likely to receive five or more votes in its favor, causing the district court's nearly $69 million judgment in its favor to be affirmed. If the U.S. Supreme Court were then to grant review, however, it will be a whole new ballgame. Posted at 22:15 by Howard Bashman Webcast of Justice Stevens' speech last Friday is now available: As I reported here this past Saturday, U.S. Supreme Court Justice John Paul Stevens delivered the inaugural Piper Rudnick-Vacketta Lecture on Government and the Law at the University of Illinois College of Law last Friday. A webcast of Justice Stevens' speech is now available online via this link. (Link to webcast courtesy of Jurist.) Posted at 21:35 by Howard Bashman "How Appealing" gets results: Last night, the following post appeared here on this blog: Fifth Circuit strikes down San Antonio ordinance prohibiting adult video store from locating within 1000 feet of residential area: You can access today's ruling of the U.S. Court of Appeals for the Fifth Circuit at this link. (Note: The references to the Third Circuit contained in footnote seventeen of the opinion may be in error, because the opinion, in context, appears to be referring back to decisions from the Eighth and Tenth Circuits, and not the Third.)I noticed the trivial error mentioned above in the parenthetical simply because, as a former law clerk to a Third Circuit judge, opinions from other circuits that criticize Third Circuit rulings tend to capture my attention. And, when I noticed that the ruling actually being criticized didn't seem to be from the Third Circuit, I thought that was worth pointing out. Well, this afternoon the Fifth Circuit issued an amended opinion, and footnote seventeen of the amended opinion no longer contains any reference to the Third Circuit. Because Fifth Circuit Judge Jerry E. Smith -- the author of yesterday's Fifth Circuit decision -- seems to be a regular reader of this blog, and since the trivial error noted here yesterday was corrected so promptly, I will chalk this up as an example of this blog's having achieved tangible results in the form of an even more perfect Fifth Circuit opinion. Update: As I was completing this post, I checked my blog's email account and found a message from Judge Smith stating, "You were the first to spot the error in footnote 17. Thanks. I have fixed it." My pleasure, and thank you for your very kind acknowledgement! Posted at 21:07 by Howard Bashman Senate Judiciary Committee Chairman Patrick J. Leahy issues press release critical of President Bush's judicial confirmation proposal: Senator Patrick J. Leahy (D-VT), chair of the Senate Judiciary Committee, issued a press release this afternoon that was critical of President Bush's proposal announced today to achieve the confirmation of more judicial nominees. Posted at 20:03 by Howard Bashman "Bush Proposes Plan to Get Court Nominees Confirmed": Reuters has this report. Additionally, you can now access the text of President Bush's remarks (plus a photo, audio, and video links) here. It appears that the plan would eliminate the prerogative a Senator now possesses to use a "blue slip" to block the consideration of nominees from a Senator's home state (see here for more details) and that the plan would end the Senate Judiciary Committee's ability to prevent a nomination from reaching the floor of the Senate for a full up or down vote. Update: This more recent article from The Associated Press contains reaction from three Democratic Senators currently serving on the Judiciary Committee, and they are not pleased with the President's proposal. And United Press International has this report on today's proposal. Posted at 16:20 by Howard Bashman "Supreme Court to Hear 3-Strikes Case": The Associated Press offers this report. Posted at 15:54 by Howard Bashman Declan McCullagh reports on yesterday's Third Circuit oral argument in Child Online Protection Act case: Declan McCullagh of c|net news.com has this report on yesterday's Third Circuit oral argument in the Child Online Protection Act case, which is on remand from the U.S. Supreme Court's ruling last Term that returned the case to the Third Circuit for further consideration. You can access my original coverage of that ruling -- written when this blog was just one week old -- at this link. Posted at 15:49 by Howard Bashman Former heavyweight boxing champion Riddick Bowe must go to prison: The U.S. Court of Appeals for the Fourth Circuit has so ruled today, in an opinion you can access here. Bowe faces a sentence of 18 to 24 months of imprisonment for having pled guilty to one count of interstate domestic violence under 18 U.S.C. sec. 2261(a)(2). Posted at 15:25 by Howard Bashman President Bush announces plan for timely consideration of judicial nominees: I'm just back from this morning's Third Circuit en banc oral argument (about which more later), and there's some breaking news to report on the judicial confirmation front. President Bush this morning has announced a plan to ensure timely consideration by the Senate of his judicial nominees. You can access the White House's press release at this link. You can access a report from The Associated Press at this link. Posted at 14:05 by Howard Bashman In Wednesday's Los Angeles Times: Today's edition of The Los Angeles Times (caution, annoying pop-up ads ahead!) contains this report on yesterday's medical marijuana ruling from the Ninth Circuit. The LATimes also runs an interesting article about South Dakota's proposed constitutional amendment that would enshrine in that State's constitution a criminal defendant's ability to argue for jury nullification. You can access my prior coverage of this proposed South Dakota amendment, and the amendment's text, here. Finally, The LATimes today contains this report on yesterday's developments in the DC-area sniper case. Posted at 09:46 by Howard Bashman "girls club" we hardly knew ya: Today's edition of The New York Times reports here that David E. Kelley's latest lawyer drama -- "girls club" -- has been canceled by the Fox television network after just two episodes due to low ratings. The article states that "The show will not be broadcast again" even though a total of six episodes have been completed. Posted at 09:35 by Howard Bashman In Wednesday's newspapers: In the DC-area sniper case, The Christian Science Monitor reports here that "Prosecutors race to try sniper suspects first." The New York Times today offers a similar article entitled "Tensions Rise Over Who Will Prosecute, and How." Today's Times also reports that the federal government's arraignment of John Muhammad on the day of his arrest may have interrupted an interrogation that was about to lead to Muhammad's confession to the crimes. The Washington Post today contains a front page article whose headline could win an award for understatement: "Defense Case Seen As Tough" in the sniper matter. Elsewhere in today's NYTimes, reporter Adam Liptak covers yesterday's ruling by the Ninth Circuit concerning whether the federal government may prohibit physicians from recommending the use of medical marijauna to patients. Among those quoted in Liptak's article is law blogger Eugene Volokh. Liptak also has a separate article today reporting on the study of the law and literature. Reporter Benjamin Weiser covers the latest developments in the case of alleged dirty bomber and enemy combatant Jose Padilla. Finally, the Democratic party has already taken the contest over the Minnesota U.S. Senate seat vacancy to court, The Associated Press reports here, and the Supreme Court of Minnesota is due to hear the matter tomorrow. Posted at 07:13 by Howard Bashman California Chief Justice Ronald M. George receives the William H. Rehnquist Award for Judicial Excellence: The award was conferred one week ago today at the U.S. Supreme Court building. You can access a press release reporting on the award here, and you can access the speech that Chief Justice George delivered upon accepting the award here. Posted at 07:12 by Howard Bashman Now online at law.com: Jason Hoppin reports here on yesterday's ruling by the Ninth Circuit concerning whether doctors may have their ability to prescribe controlled substances revoked if they recommend medical marijuana to a patient. Jonathan Ringel, in a report you can access here, summarizes the most newsworthy decisions that the Supreme Court of Georgia issued this past Monday. This article reports on the latest court filings in the case of alleged dirty bomber and enemy combatant Jose Padilla. Marcia Coyle previews the upcoming U.S. Supreme Court case of Norfolk & Western Railway Co. v. Ayers, which involves recovery for fear of cancer stemming from asbestos exposure. Finally, this article reports on an interesting ruling of the California Court of Appeal, Second District, concerning whether "the California Fair Employment and Housing Act (FEHA) creates employer liability for sexual harassment of an employee committed by a non-employee client or customer." You can access the California court's ruling at this link. Posted at 06:54 by Howard Bashman Tuesday, October 29, 2002
Slate's Dahlia Lithwick on the plea of Clifford Chance associates for free shoeshines: It figures that Dahlia would zero in on my favorite part of the memo in question.
Posted at 21:53 by Howard Bashman
Fourth Circuit judge invokes DC-area sniper case in dissenting from denial of rehearing en banc: On September 2, 2002, I posted an entry here about a Fourth Circuit decision that had issued the week before while I was on vacation: How not to conduct a prisoner transfer: The facts of this decision issued last week by the U.S. Court of Appeals for the Fourth Circuit were rather astounding:Because Robles was dissatisfied with the relatively small amount of damages that he obtained in the case, he filed for rehearing en banc. Today the Fourth Circuit entered an order denying Robles's petition for rehearing en banc. Every active judge on the Fourth Circuit voted to deny the petition except for Circuit Judge J. Michael Luttig, who wrote a lengthy dissent that stated, in pertinent part:After taking Robles into custody, the officers attempted to arrange a prisoner exchange with Montgomery County's police department. Formal custody transfers generally require that the arrested individual be taken to a commissioner in the county where arrested and then transferred by the sheriff's department to the county that issued the warrant. Because this procedure is time consuming, officers sometimes arrange informal transfers of arrestees at the county line. Rozar and DeBarros requested several times that the Montgomery County dispatcher send someone to meet them for such an exchange, but these requests were denied. The officers were told that the Montgomery County Police Department was too busy that evening to spare officers for a transfer.Not surprisingly, the police officers in question were found liable to the suspect for damages based on their conduct in the prisoner transfer. And I would like to have thought that at this point in our history no court would hold, as did this panel, that law enforcement officers need an opinion from this court in order for them to be on notice that handcuffing a pretrial detainee to a metal pole in a deserted shopping center at 3:00 a.m. in the morning, and abandoning him there, for no law enforcement purpose at all, is unconstitutional. The sheer danger, not even to mention the constitutional irresponsibility, of such conduct is manifest as a simple matter of common sense, and is made all the more evident by events such as the recent spree of unpredictable sniper killings in the Washington, D.C., metropolitan area, which have even reached to the identical shopping center in which appellant was handcuffed. Such a holding as that of the panel analytically completes the transformation of qualified immunity into absolute immunity and goes a long way toward the dilution of section 1983 itself. It is rich irony, therefore, that the panel rhetorically asserts precisely the opposite in support of its conclusion.The Fourth Circuit, of course, is the federal appellate court that hears appeals from both Maryland and Virginia, and so it likely will be seeing more of the sniper matter in the months and years ahead. Posted at 21:41 by Howard Bashman Judge Frank H. Easterbrook weighs in with more football-related insights: Seventh Circuit Judge Frank H. Easterbrook today makes his second appearance in two weeks at ESPN.com's Page 2 feature written by his brother, Gregg Easterbrook. This week Judge Easterbrook appears to engage in a little New York Times bashing of his own. (Click here, then scroll down about three-quarters of the page.) Update: Two current federal appellate law clerks -- neither of whom is clerking for a Seventh Circuit judge -- have separately emailed to direct my attention to this post on the Greedy Clerk's board which contends that Judge Easterbrook's latest analysis is "just plain bad math." Take a look and decide for yourself. Posted at 21:24 by Howard Bashman Fifth Circuit strikes down San Antonio ordinance prohibiting adult video store from locating within 1000 feet of residential area: You can access today's ruling of the U.S. Court of Appeals for the Fifth Circuit at this link. (Note: The references to the Third Circuit contained in footnote seventeen of the opinion may be in error, because the opinion, in context, appears to be referring back to decisions from the Eighth and Tenth Circuits, and not the Third.) Posted at 21:17 by Howard Bashman The AP provides this helpful Hobbs Act primer: The Associated Press tonight offers this helpful Hobbs Act primer. The AP article, however, misstates both the number of dissents in yesterday's evenly divided en banc Fifth Circuit Hobbs Act decision and the total length of all those dissenting opinions. Relatedly, a reader emailed earlier today: The Hobbs Act is named after the Alabama congressman who introduced it. His son, Truman Hobbs, became a U.S. District Judge in Montgomery (now a Senior Judge). Some years back, Judge Hobbs was hearing a Hobbs Act case and mused whether he had a conflict of interest.Thanks for sending along that interesting information. Posted at 21:05 by Howard Bashman Another reason not to mess with Texas: The defendant in a Texas state court criminal proceeding was forced to wear a stun belt because he had, before trial, threatened to disarm a courtroom security officer and shoot his way out of the courthouse building. According to a unanimous decision that the U.S. Court of Appeals for the Fifth Circuit issued today, during the trial "the stun belt had activated through no fault of [the defendant] or either of the two certified stun belt operators present in the courtroom." When activated, a stun belt "delivers a 50,000 volt electrical shock to the wearer." Following the trial during which the stun belt inadvertently activated in open court, with the jury present, the jury found the defendant guilty of murder committed during the course of a robbery and sentenced him to death. Today the Fifth Circuit ruled that the defendant had failed to establish that the stun belt's inadvertent activation during the trial deprived him of a fair trial. Posted at 20:42 by Howard Bashman The federal government's latest filing in the case of alleged "dirty-bomber" Jose Padilla: You can access it here, thanks to FindLaw. Posted at 17:31 by Howard Bashman The federal criminal charges against DC-area sniper suspect John Allen Muhammad: You can access the federal criminal charges filed today here, courtesy of FindLaw. And Slate provides this handy "explainer" entitled "Who Gets To Prosecute the Sniper Suspects First?" Posted at 17:27 by Howard Bashman That was then; this is now: A former colleague emails to point out a surprising passage from an opinion that the U.S. Court of Appeals for the Seventh Circuit issued today. On page eight of the opinion issued today, Circuit Judge Diane P. Wood writes on behalf of a unanimous three-judge panel: The Ninth Circuit apparently rejected our approach in its Ford Motor Co. opinion. The Supreme Court now has the case under advisement, and we recognize that its decision may affect the rule we have followed. Nonetheless, we see no reason to hold this case for the decision in Ford Motor Co.; instead, we respectfully choose to adhere to the Brand Name Drugs approach. We are confident that the parties will be able to preserve their rights to have any contrary Supreme Court ruling applied, should the Court find the Ninth Circuit's approach persuasive.In response to that passage, my former colleague's email states: But on October 15 the Supreme Court dismissed the writ in the Ford case as improvidently granted, as you reported that very day. Did the Seventh Circuit miss that when it wrote that "[t]he Supreme Court now has the [Ford] case under advisement . . . ."? Don't they read "How Appealing" like everyone else?Well, I know for a fact that "How Appealing" is read by at least one or two individuals who work at the Seventh Circuit, and I'm also aware that a federal appellate court's opinion doesn't issue instantaneously once it rolls off of the drafting judge's printer. Rather, it is necessary to circulate the opinion to the other judges on the panel, and then the opinion is sent off to the printer. Obviously, whoever had the task of keeping up on the status of the referenced "pending" U.S. Supreme Court case must have been distracted by the press of other work, because the Supreme Court dismissed the writ of certiorari as improvidently granted in Ford Motor Co. v. McCauley exactly two weeks ago today, as I first reported here on the morning of October 15, 2002. My guess is that the panel will issue an order amending this aspect of its opinion to reflect more accurately the true status of the Ford Motor case as of today. Posted at 16:55 by Howard Bashman The Ninth Circuit and medical marijuana: A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has today affirmed an injunction that prohibits the federal government from enforcing a federal drug control policy under which a physician's recommendation that a patient use medical marijuana would result in the physician's loss of his or her license to prescribe controlled substances. You can access the Ninth Circuit's decision at this link. Posted at 13:42 by Howard Bashman Univ. of Michigan has filed its briefs in opposition in U.S. Supreme Court affirmative action challenges: The Associated Press provides this report. Update: The University of Michigan has issued this press release. Posted at 12:57 by Howard Bashman Sorry, WaPo, but this Hobbs isn't Calvin's buddy or the author of Leviathan: Today's edition of The Washington Post contains a front page article entitled "Capital Murder Charges Filed in Va. Shootings; New Terror Law Could Be Tested in Sniper Case." A particularly gimlet-eyed reader emails to note the following paragraph from that article: Perhaps complicating the decision are the pending federal charges. Two Justice Department officials said prosecutors would use provisions of the Hobbes Act -- which prohibits the use of extortion or threats of violence to disrupt interstate commerce -- to charge Muhammad and Malvo. A killing in connection with a federal crime can bring the death penalty.The reader's email states: Do you happen to know whether the Hobbs Act the validity of which the Fifth Circuit is fighting over (as described in your recent McFarland posts) is the same Hobbs Act that the NY Times asserts today will be used to prosecute the snipers in a federal prosecution? Since I'm an environmental lawyer not a criminal one, I sure don't know.It just so happens that I do know whether the Hobbs Act at issue in the Fifth Circuit is the same Hobbs Act (or Hobbes Act, thanks WaPo) referenced in today's news. The answer is yes, they are the same. And no, the law's name isn't spelled Hobbes, after the author of Leviathan or Calvin's buddy, but Hobbs. Readers can access more information about the Hobbs Act here, via the U.S. Department of Justice's Web site, or here, in a law review article that is particularly relevant to yesterday's Fifth Circuit en banc decision. Posted at 11:31 by Howard Bashman "Stop the Clock? Critics Call the Billable Hour a Legal Fiction": Reporter Adam Liptak has an article by that title in today's edition of The New York Times. Liptak's article explains that "Earlier this month, associates at the New York office of Clifford Chance, the British law firm that is the world's largest, sent the partners an anguished memorandum." Courtesy of The Financial Times, you can access the text of that memo at this link. Posted at 10:38 by Howard Bashman Reader mail part two -- Teaching The New York Times all it ever could have hoped to know about the Fourth Circuit: Yesterday, a reader emailed to note that an article on the front page of yesterday's New York Times implied that two different regional federal appellate courts heard appeals arising from Maryland and Virginia, when in fact the U.S. Court of Appeals for the Fourth Circuit has both of those states within its geographic jurisdiction. (See my earlier post at this link for all the details.) This morning, three readers of "How Appealing" have already emailed to point out a blatant inaccuracy contained in this morning's NYTimes article reporting on yesterday's Fourth Circuit oral argument in the case of alleged enemy combatant-American Taliban Yaser Esam Hamdi. At the very end of the article, reporter Katherine Q. Seelye writes: At the conclusion of the arguments, the chief judge praised both lawyers for the "able advocacy" of their positions.And here's what the readers of "How Appealing" have to say about the quoted portion of Seelye's article: Email oneIndeed, the Fourth Circuit's practice of shaking hands with counsel after each oral argument is well known, except, until now, to the country's newspaper of record. Posted at 10:11 by Howard Bashman Reader mail part one -- Why the Fifth Circuit's evenly divided en banc ruling issued this week: Yesterday, the U.S. Court of Appeals for the Fifth Circuit split evenly (8-8) over whether a defendant may constitutionally be prosecuted under the Hobbs Act for routine convenience store robberies without running afoul of the U.S. Supreme Court's current Commerce Clause jurisprudence. A reader emails this morning to explain the likely reason why this decision issued this week. Fifth Circuit Judge Robert M. Parker, one of the Clinton appointees who voted to affirm the defendant's convictions, is scheduled to retire completely from judicial service this Friday. Hmm, maybe that provides another reason why the eight judges who voted to affirm didn't take the time to explain their views -- perhaps they didn't have the time! You can access my complete coverage of this interesting ruling (or, as some have called it, non-ruling) at this link. Posted at 10:04 by Howard Bashman The Supreme Court of Georgia issues an important ruling concerning representation of Hispanics on jury pools: Today's edition of The Atlanta Journal-Constitution contains an article which explains that "Georgia's soaring Hispanic population has become a distinct class of residents and must be represented on county jury pools, the Georgia Supreme Court ruled Monday." Posted at 09:54 by Howard Bashman law.com covers the Third Circuit's ruling in the Tenafly eruv case: You can access the report here. You can access my prior coverage of that ruling at this link. Posted at 07:35 by Howard Bashman Today's FindLaw columnists: Today FindLaw provides the second half of Julie Hilden's effort to compare and contrast the recent conflicting Third and Sixth Circuit rulings (here and here, respectively) concerning whether the INS violated the First Amendment when that agency closed deportation hearings in special interest cases to the public and the press. And guest commentator Alec Walen previews the upcoming U.S. Supreme Court oral argument in Sattazahn v. Pennsylvania. Posted at 07:22 by Howard Bashman In Tuesday's New York Times: Tuesday's edition of The New York Times contains this report on yesterday's Fourth Circuit oral argument in the case of accused enemy combatant Yaser Esam Hamdi. In an editorial about the Hamdi case, the newspaper calls on the government to ensure that Hamdi's supposed rights "to due process and to assistance of counsel are not sacrificed." Adam Liptak resumes his fine coverage of the battle over where the DC-area sniper suspects will be tried first for their crimes. Finally, reporter Charlie LeDuff reports from Washington State on a bar that over the years has hosted some very unsavory characters. Posted at 00:10 by Howard Bashman Monday, October 28, 2002
Additional commentary on today's evenly divided en banc Fifth Circuit case involving Hobbs Act convictions for routine convenience store robberies: As originally noted in a post that appears immediately below, the U.S. Court of Appeals for the Fifth Circuit today split evenly (8-8) over whether a defendant may constitutionally be prosecuted under the Hobbs Act for routine convenience store robberies without running afoul of the U.S. Supreme Court's recent Commerce Clause jurisprudence. You can access today's ruling, which includes more than ninety pages of dissenting opinions, at this link.
What made today's case so unusual? Well, for starters, as the original three-judge panel decision in the case explains, the defendant received a federal criminal sentence of 97.5 years in jail without parole, while the defendant's sentence had the crimes been prosecuted in a Texas state court probably would have been as little as five years and, in the worst case scenario, parole eligibility after serving 30 years. All three judges on the original panel -- which consisted of two Reagan appointees (one a senior Fifth Circuit judge) and one Bush I appointee -- dissented from the en banc court's ruling today. The eight judges on the en banc court who voted to affirm consisted of one Carter appointee, one Reagan appointee, two Bush I appointees, and four Clinton appointees. The eight judges on the en banc court who voted to reverse consisted of five Reagan appointees (including one senior judge who qualified to sit en banc because he was on the original three-judge panel), two Bush I appointees, and one Bush II appointee. One of the two Bush I appointees who today voted to affirm was Circuit Judge Emilio M. Garza, whom many view as a possible Bush II appointee to the U.S. Supreme Court. Judge Garza's vote today is noteworthy for the reasons cogently explained in the following email that I received from a recent former Ninth Circuit law clerk following my first post on this case tonight: One curious point about the Fifth Circuit's en banc split-decision (or maybe the baseball term "no decision" would be more appropriate) today in US v. McFarland: The dissenting judges refer back to a 1999 en banc, United States v. Hickman, 179 F.3d 230, in which exactly the same thing happened -- a Commerce Clause challenge to a Hobbs Act conviction was rejected by an evenly divided en banc court, with Judge Higginbotham and seven brethren dissenting.It is interesting to theorize why Judge Garza dissented in the Hickman en banc case in 1999 but then seemingly reversed his position by voting to affirm in a nearly identical case today. The eight dissenters from today's en banc affirmance by an equally divided court do not attack Judge Garza by name. But, in a dissent by Circuit Judge Edith H. Jones in which Circuit Judges E. Grady Jolly, Jerry E. Smith, Harold R. DeMoss, Jr., and Edith Brown Clement joined, Circuit Judge Jones harshly chided her eight colleagues who voted to affirm for failing to issue any opinions in which they explained their view of the merits. She wrote: One may ask why our silent colleagues should be called on to write anything. Is it somehow inappropriate for courts to issue opinions when they are evenly divided? The short answer to this question is, no. Both the general role of the appellate courts and the exact circumstances of this case virtually demand expression of our competing views.The express reliance by today's dissenters on the rulings of the five-Justice U.S. Supreme Court majority that has taken a limited view of Congress's power to federalize traditionally state law crimes, and the fact that the en banc Fifth Circuit has divided evenly on this issue twice in just the past three years, could make this case an attractive candidate for U.S. Supreme Court review should the defendant seek such review, as he most surely will. Posted at 23:22 by Howard Bashman Wow! Today the en banc U.S. Court of Appeals for the Fifth Circuit split evenly (8-8) over whether a defendant may constitutionally be prosecuted under the Hobbs Act for routine convenience store robberies without running afoul of the U.S. Supreme Court's recent Commerce Clause jurisprudence. As a result of the tie, the defendant's conviction was affirmed. That didn't stop the dissenters from issuing dissenting opinions that totaled more than ninety pages in length, and the final dissent may strike some as less than collegial. I hope to have a more extensive discussion of this matter later tonight. Posted at 20:09 by Howard Bashman California Court of Appeal Justice Mildred L. Lillie has died: California Governor Gray Davis issued this press release today about the death of California Court of Appeal Justice Mildred L. Lillie, whom President Nixon reportedly considered for the U.S. Supreme Court vacancy that William H. Rehnquist filled. (Thanks to blogger Ann Salisbury for drawing this to my attention.) Posted at 20:02 by Howard Bashman Report on today's Hamdi oral argument: The Associated Press has this report on today's Fourth Circuit oral argument in the case of alleged enemy combatant and American Taliban Yaser Esam Hamdi. Posted at 18:40 by Howard Bashman "Sniper Case Adds to Execution Debate": Gina Holland, who covers the U.S. Supreme Court for The Associated Press, has this report on the latest twist in the debate over whether those who kill while under eighteen years of age should qualify to receive the death penalty. Posted at 17:15 by Howard Bashman Fourth Circuit asked to reinstate Virginia law allowing Web site operators to be prosecuted if they allow minors access to pornography: The Associated Press has this report on today's oral argument before the U.S. Court of Appeals for the Fourth Circuit. Posted at 17:12 by Howard Bashman Will Oklahoma spend the money required to seek the death penalty against Terry Nichols? Reuters reports here that the Supreme Court of Oklahoma today answered that question in the affirmative, allowing the State of Oklahoma to proceed with its efforts to obtain a sentence of death against Oklahoma City bombing conspirator Terry Nichols. Posted at 17:08 by Howard Bashman Happy birthday Bill Gates! Today is not only my birthday, but it is also the birthday of Microsoft Chairman William H. Gates. A divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit did its part to ensure a happy birthday for Microsoft's Chairman, as that court today affirmed the dismissal of a federal antitrust consumer class action alleging illegal restraint of trade and a conspiracy to maintain alleged monopolies in the sale of operating systems, word processing, and spreadsheet software. You can access the Fourth Circuit's opinion at this link. Posted at 14:56 by Howard Bashman Hamdi oral argument update: In case you were wondering, the Fourth Circuit's oral argument in the case of alleged enemy combatant, so-called American-Taliban Yaser Esam Hamdi is not scheduled to get underway until 2:30 p.m. eastern time today in Richmond, Virginia. According to the Fourth Circuit's oral argument list, the question to be argued is "Whether the Mobbs Declaration, standing alone, is sufficient as a matter of law to allow a meaningful judicial review of Yaser Esam Hamdi's classification as an enemy combatant?" Posted at 11:42 by Howard Bashman Our machinery of death is so much more effective than yours: The Associated Press is now reporting that at least one of the DC-area sniper suspects was indicted on capital murder charges this morning in the Spotsylvania County Circuit Court in Virginia. In all probability Virginia has indicted both suspects, but, because one is under the age of eighteen, officials aren't saying what charges, if any, have been filed against the younger suspect. Update: Courtesy of FindLaw, you can access a copy of the Spotsylvania County indictment at this link. Posted at 10:57 by Howard Bashman Tom Tomorrow has the five Justice Bush v. Gore majority looking good: Well, at least their images are drawn flatteringly, in this cartoon that appears today at Salon. Posted at 10:44 by Howard Bashman NRO on the Ten Commandments case: National Review Online contributing editor Michael Novak writes this morning, with respect to the Alabama Judicial Building Ten Commandments case, that "[t]he current tactics of the ACLU defy reason." Posted at 09:20 by Howard Bashman Actually, what we mean to say is: Thanks to a longtime reader for emailing to point out a misstatement in a front page article published in today's edition of The New York Times. The passage in question reads: Justice Department officials said that Attorney General John Ashcroft, who was in Asia last week as the sniper investigation came to a head, returned to Washington today and would be briefed on Monday on options for prosecution. "The situation is still very much in flux," a Justice Department official said.The error is contained in the very final sentence of the quotation. You see, the U.S. Court of Appeals for the Fourth Circuit has within its geographic jurisdiction all federal trial courts located in Maryland, North Carolina, South Carolina, Virginia, and West Virginia. So, the federal appellate judges who would hear an appeal from a conviction obtained in a federal district court in Virginia are the same federal appellate judges who would hear an appeal from a conviction obtained in a federal district court in Maryland. And if the final sentence of the above quotation seeks to draw a distinction between federal appellate judges and Maryland state court appellate judges (but how would one explain "the region that includes Maryland"?), then it is written in a manner that lacks sufficient clarity. Oops! Posted at 08:39 by Howard Bashman Here and there: You can access here the terror preparedness report issued this past Friday by an Independent Task Force sponsored by the Council on Foreign Relations. The task force is known as the Hart-Rudman Task Force, so named after the two former U.S. Senators who serve as its co-chairs. And if the Nation's level of anti-terror preparedness has got you down, perhaps you'd be pleased to learn that the current economic downturn is mostly just a huge overreaction, as the cover story of yesterday's New York Times Magazine seems to imply. Posted at 08:28 by Howard Bashman Today's FindLaw columnists: Anthony J. Sebok writes about the case of State Farm Mutual Insurance Co. v. Campbell, in which the U.S. Supreme Court could decide whether a State court may take into account unlawful conduct that has occurred in other States when deciding what amount of punitive damages to award. And guest columnist Mark H. Allenbaugh discusses here the "options for * * * prosecution and possible execution" of the DC-area sniper suspects. Posted at 08:22 by Howard Bashman In Monday's newspapers: The U.S. Court of Appeals for the Fourth Circuit will hear oral arguments today in the latest appeal to arise out of the continued military detention of alleged enemy combatant and so-called American Taliban Yaser Esam Hamdi. The New York Times has this report, and The Christian Science Monitor offers this preview. The Times also contains an editorial in which it calls for fair trials for both Hamdi and alleged twentieth hijacker Zacarias Moussaoui. In this article, NYTimes reporter Adam Liptak reports on how punitive damages awards may be masquerading as awards for pain and suffering. Finally, The Times contains an article reporting that Virginia authorities believe seventeen-year-old John Lee Malvo fired the shot that killed an FBI analyst in Virginia on October 14, 2002. Virginia's enthusiasm for ensuring that Malvo receives the death penalty is certainly giving Alabama a run for its money. Monday's edition of The Washington Post contains a profile of Peter N. Kirsanow, President George W. Bush's appointee to the U.S. Commission on Civil Rights. Posted at 00:15 by Howard Bashman Blogger birthday: I was born on October 28, 1964, and thus today I turn 38! Of course, to borrow a line from Sasha Volokh, by using an exclamation point I don't mean that my age is now the factorial of 38. Because if my age were the factorial of 38, then my age would equal (as page four of this PDF file confirms) 235 x 317 x 58 x 75 x 113 x 132 x 172 x 192 x 23 x 29 x 31 x 37. Or, one could approximate the value of 38! as 5.2302261746660111176000722410007e+44 (see here for confirmation). And I'm not sure exactly what if anything was going on way back then, but that was certainly quite a long time before even the Kennewick Man was born. Rather, the age I am turning today is halfway to 76 or one-third of the way to 114. Thanks, Sasha, for inspiring me on this mathematical frolic. Posted at 00:01 by Howard Bashman Sunday, October 27, 2002
Got your Kennewick Man right here: Whenever I start feeling old (a topic about which more will appear here in half an hour), it helps me to think about the 9,200+ year old Kennewick Man. He may be more than 9,200 years old, but he's still able to spawn an appeal to the U.S. Court of Appeals for the Ninth Circuit, as Moira Breen reports here and here.
Posted at 23:34 by Howard Bashman
Another reason why I love L.A.: Sure, the nearby Anaheim Angels have just won the World Series, but the real purpose of this post is to say that NBC's "Boomtown" is one helluva TV show. (This post's title inspired by Randy Newman.) Posted at 23:29 by Howard Bashman Don't try this at home: As an appellate lawyer, few things disappoint me more than when a party loses the right to appellate review because the party's notice of appeal wasn't filed on time. I don't mean to imply that it's always absolutely clear if or when a notice of appeal must be filed. But the rule to be guided by is "When in doubt, file a notice of appeal." No party has ever lost the right to appellate review by filing too many notice of appeal; the same can't be said about those parties that have filed too few, or too late. This past Friday, the U.S. Court of Appeals for the Fifth Circuit decided a case in which it held that the appealing party had filed its appeal too late. As a result, the appellate court lacked the ability to address the merits of the appeal and dismissed the appeal for lack of appellate jurisdiction. You can access the Fifth Circuit's per curiam decision at this link. While I won't go so far as to suggest that the Fifth Circuit reached the wrong result in this matter, the facts of this case were rather unusual, and it is conceivable that the appellate court could have found that the notice of appeal was timely under the particular facts presented. In this civil case that had been pending in a federal district court in Texas, the applicable law provided the losing party with thirty days in which to appeal following the entry of a final judgment. A final, appealable judgment exists once a federal district court disposes of all claims as to all parties and enters judgment on a separate document. (As I explained in this installment of my monthly appellate column, rule changes will take effect on December 1, 2002 altering when a final, appealable judgment exists in a civil case. The sentence preceding this parenthetical is correct under the law as it exists on the date this post was made.) The pertinent facts before the Fifth Circuit were as follows. On Wednesday, October 17, 2001, the Texas federal district court entered on its docket a "final summary judgment" stating that judgment was being entered in favor of the defendant and against the plaintiff on all claims. According to the Fifth Circuit's opinion (PDF file at page 8), the district court's final judgment stated, in full: In accordance with the Court's Memorandum and Order of this date the CourtWhat made matters more confusing, however, was that the trial court's memorandum and order "of this date" weren't entered on the trial court's docket or sent to the parties until Tuesday, October 23, 2001. Furthermore, most federal appellate courts have ruled that a federal trial court is prohibited from granting final summary judgment in favor of a party -- which tosses out the case before trial -- without issuing an opinion in which the trial court provides its reasons for doing so. Now, another common definition of a "final, appealable judgment" is that a final, appealable judgment exists when there is nothing left for the federal trial court to do other than enforce the judgment. If the Fifth Circuit follows the majority rule that a grant of summary judgment must, to be sustainable on appeal, be accompanied by the trial court's explanation, then an argument could be made that a final, appealable judgment didn't exist in this case until the trial court issued its explanation by means of the opinion docketed on October 23, 2001. If the plaintiff's thirty days in which to file a timely notice of appeal began to run on October 17, 2001, then plaintiff's time for filing a timely notice of appeal expired on Friday, November 16, 2001. If the time to file the notice of appeal did not start until October 23, 2001, then the plaintiff had until Thursday, November 22, 2001 in which to file a timely notice of appeal. As the Fifth Circuit's opinion explains, the plaintiff's notice of appeal was not filed until Tuesday, November 20, 2001, making the start date on which the thirty-day appeal period began to run a matter of decretory importance. The procedural history of the case gave the plaintiff two possible arguments to make. First, the trial court's "final summary judgment" order of October 17, 2001 stated that the trial court's opinion was intended to issue on the same date. Because the opinion didn't issue until October 23, 2001, the trial court's final judgment should be deemed to have issued on that same, later date. The Fifth Circuit's opinion does not suggest that the plaintiff raised this argument on appeal. Second, as I have already explained, if the Fifth Circuit requires that the trial court issue a contemporaneous explanation of the reasons why summary judgment is being granted in order for a valid summary judgment to issue, the plaintiff could have argued that no true final judgment existed until October 23, 2001. If the Fifth Circuit agreed that no final, appealable judgment existed until October 23, 2001, the plaintiff's notice of appeal filed November 20, 2001 would have been timely. But, because the Fifth Circuit concluded that the final summary judgment order purported to dispose of all claims as to all parties and satisfied the separate paper requirement (even though it was separate from something that didn't exist until six days later), the Fifth Circuit ruled that the thirty days in which to appeal began to run on October 17, 2001, making plaintiff's notice of appeal filed November 20, 2001 untimely. Again, I don't mean to imply that the Fifth Circuit reached the wrong result, but only that this was perhaps a more complicated case than the Fifth Circuit's opinion suggests. I also don't mean to imply that the plaintiff's appeal had any chance of success on the merits; I have absolutely no idea about that. Finally, I have no way of knowing why the plaintiff failed to appeal on or before November 16, 2001. That remains perhaps the biggest mystery of this case. If the plaintiff had expressed an interest in appealing from the trial court's ruling on or before November 16, 2001, it would have been most prudent to ensure that the notice of appeal was on file in the federal district court by that date. And thus the lesson remains -- it is better to appeal early and often, if necessary at every possible opportunity, than too infrequently and too late, as this Fifth Circuit decision vividly serves to remind us. Posted at 20:44 by Howard Bashman Justice Stevens Still a 'Wild Card': Gina Holland of The Associated Press has this report. Posted at 14:58 by Howard Bashman In today's Los Angeles Times: Today's edition of The Los Angeles Times contains several letters to the editor spawned by an article that ran in the newspaper on October 15, 2002 entitled "Stained Judicial Race Has Ugly New Turn: First the incumbent, charged with molestation and child porn, quit the Orange County contest. Now two rivals fight over one's personal history." Posted at 08:23 by Howard Bashman In next week's news magazines: The edition of Newsweek due to hit newsstands on Monday contains an article by Stuart Taylor Jr. entitled "The Death-Penalty Maze: The cops have cracked the case. Now the legal wrangling begins. Who should take the suspected snipers to court?" The sniper story is front page news in both Newsweek (see here) and U.S. News and World Report (see here). Newsweek also runs an interesting story by Jonathan Alter entitled, "Actually, the Database Is God." Turning to a different subject, U.S. News and World Report contains an article that discusses how "Tobacco firms are losing product liability lawsuits--and losing big." Posted at 08:16 by Howard Bashman In Sunday's newspapers: Sunday's edition of The New York Times contains an article that asks "Public or Mormon Plaza?" The article focuses on the Tenth Circuit's recent ruling in this case. The New York Times Magazine contains a lengthy report on "Hady Hassan Omar's Detention" as a terror suspect. The article's summary explains, "On Sept. 12, 2001, without being charged, he was put behind bars for 73 days. Now he is suing the government, and his case, the first of its kind, raises difficult questions about the costs of homeland security." Finally, and not surprisingly, this article reports that "Cigarette Makers Take Anti-Smoking Ads Personally." Sunday's edition of The Washington Post has an editorial about the pending U.S. Supreme Court case of Texas death row inmate Thomas Joe Miller-El. And George F. Will has a column entitled "Life, and Death, in an Abortion Culture" that discusses a Michigan intermediate appellate court ruling that I previously discussed, and linked to, here. Posted at 00:18 by Howard Bashman Saturday, October 26, 2002
Where are they now? Received a message overnight at my blog's email account from a friend from long ago with whom I attended The William Penn Charter School from kindergarten through twelfth grade. He wrote:What a surprise and pleasure to be editing a story and to discover an old classmate quoted therein. [10/23/02 NY Times] Congratulations.The Mirror is the successor publication to the oldest school newspaper in the Nation. The fact that Penn Charter was founded in 1689 probably did much to help it spawn the Nation's first student newspaper. I had the pleasure of being The Mirror's editor in chief my senior year in high school, back in 1981-82. For the record, my appearance this past Wednesday in The New York Times was my second; the first occurred in 1990 or thereabout, during my Third Circuit judicial clerkship, when The Sunday NYTimes published an engagement announcement featuring me and my wife-to-be. Here's hoping I won't have to wait another twelve years before making another pleasant appearance in The NYTimes. Posted at 18:46 by Howard Bashman Patriot Act: Will it defeat terror, diminish fr |