How Appealing

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:
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.

Skeptical of this explanation, Rozar and DeBarros drove Robles to the deserted Hillandale Shopping Center parking lot in Montgomery County. There they tied Robles to a metal pole using three pairs of flex-cuffs and left a note at his feet explaining that there were outstanding warrants for him in Montgomery County. The officers then drove out of sight of Robles and placed a call to the non-emergency number of the Montgomery Police Department reporting the situation. They did not identify themselves to the operator or disclose the fact that PGC officers had tied Robles to the pole. Officers from Montgomery County arrived approximately 10 to 15 minutes later to untie Robles and take him into custody.
Not surprisingly, the police officers in question were found liable to the suspect for damages based on their conduct in the prisoner transfer.
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:
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.

Of course the Washington Post referred to this second Hobbs Act as the "Hobbes Act" in its lead article today, which means either the Post or the NY Times is wrong on that point.
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.

"The American people have been beautifully served by the quality of advocacy," Mr. Wilkinson said before taking the unusual step of leading his two colleagues down from the bench to shake hands with the battery of lawyers on both sides. He gave no indication of when the court might rule.
And here's what the readers of "How Appealing" have to say about the quoted portion of Seelye's article:
Email one

Of course the NY Times goofed again in saying that Judge Wilkinson took "the unusual step of leading his two colleagues down from the bench to shake hands with the battery of lawyers on both sides." As a former clerk for JHW who has practiced there, I can attest that it is not at all "unusual" for the 4th Circuit judges to descend the bench to shake hands with counsel; indeed, as you probably know, they do that in every case. Every single one. Even the unimportant ones where the quality of the advocacy was atrocious.

Email two (which comes from an assistant professor of law at the Harvard Law School)

Not for attribution, but this is the kind of thing I know you like to point out on your website. The last paragraph of Katharine Seelye's article on yesterday's Fourth Circuit Hamdi argument contains the following sentence: "'The American people have been beautifully served by the quality of advocacy,' Mr. Wilkinson said before taking the unusual step of leading his two colleagues down from the bench to shake hands with the battery of lawyers on both sides." I'm sure Judge Wilkinson was sincere, but there's nothing unusual in the handshaking -- at least for the Fourth Circuit. In that court, the judges traditionally step down from the bench after oral argument to shake hands with counsel.

Email three

The article closes with the statement that after Chief Judge Wilkinson praised the quality of the lawyering in the case, he took "the unusual step of leading his two colleagues down from the bench to shake hands with the battery of lawyers on both sides."

Unusual in most courts, no doubt, but it's S.O.P. in the Fourth Circuit. Happens after every argument. I guess it's just that Virginia courtliness.
Indeed, 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.

The funny thing is this: Although there have been changes in the en banc court's membership since Hickman -- Judge Politz went senior and then passed away; Judge Duhe went senior; Judge Clement was confirmed; Judge Garwood was able to participate as a senior judge in McFarland but not in Hickman -- they were offset by the fact that Judge Emilio Garza apparently changed his position in the interim. He joined Judge Higginbotham's dissent in Hickman, but (apparently) voted to affirm in McFarland.

Although I've given the opinions only a cursory read, they seem to present exactly the same issue, and the supervening Supreme Court case -- US v. Morrison -- would seem to point the dissenters' way if it's relevant at all. So I wonder what's changed? And if the White House Counsel's office is noting this down in the file I'm sure it keeps on Judge Garza?
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 benefits of issuing reasoned opinions -- fostering public understanding of the law, accountability and transparency, and imposing self-discipline on the judges -- are not limited to majority opinions. Judges' occasional writings, such as concurrences, dissents, opinions following denial of en banc rehearing -- and opinions written despite an evenly divided court -- lack the force of law but deploy the force of suasion for exactly the same purposes as majority opinions. In no case can we compel our brethren to provide published reasons for their decisions. By their silence here, however, they have defaulted their duties of public explication, accountability and transparency.
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.

Mr. Ashcroft is a strong proponent of the death penalty, and he is also close to Paul McNulty, the United States attorney for the Eastern District of Virginia. Several people in the Justice Department speculated that Mr. Ashcroft would push to have Mr. McNulty's office take the lead in the case. Appellate judges in that district are considered less likely to overturn a death sentence than those in the region that includes Maryland.
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 Court
ORDERS that Defendant APEX Marine Corp. is granted summary judgment on all claims brought against it by Plaintiff Earl Ludgood in the above-referenced action. The Court further ORDERS that Plaintiff pay all costs of court.
This is a FINAL JUDGMENT
SIGNED at Houston, Texas, this 17th day of October, 2001.
/s Melinda Harmon, United States District Judge
What 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.

I am a national news editor here at the Times, and have lived in New York for the past 15 years. * * * *

Of course, you taught me all I know about journalism at the Mirror.
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 freedom, or both? See the cover story of tomorrow's Washington Post Magazine.
Posted at 12:43 by Howard Bashman



Bravenet hit counter out of control: Yesterday, this blog's Bravenet hit counter recorded 5,810 visits, another all-time record for "How Appealing." Many of these visitors are due to this blog's being featured as a "blog of note" on Blogger's home page. Others arrive here due to an unusual Google caching error (possible related to a Blog*Spot error) while searching for news about Wang Jiaxiong, a stuntman who recently died trying to jump over the Great Wall of China. If you have reached "How Appealing" in the hope of obtaining news about that recently deceased stuntman, the posts you are looking for exist here and here on someone else's blog.
Posted at 12:19 by Howard Bashman



Tonight on C-SPAN's "America and the Courts": Tonight on C-SPAN's fine program "America and the Courts," a panel presentation on Federalism featuring a top-notch group of panelists: Erwin Chemerinsky; Walter Dellinger; Linda Greenhouse; Tony Mauro; and Stephen Wermiel. The program was videotaped at the College of William and Mary School of Law on September 21, 2002 and was a part of that law school's 2002 Supreme Court Preview.
Posted at 11:56 by Howard Bashman



Now online at law.com: Evan P. Schultz asks "Will the U.S. Supreme Court treat sexual offenders better than terrorists?" Jason Hoppin reports on Thursday's Ninth Circuit dissent from the denial of rehearing en banc in a border search case (more details, including a link to the dissent, are available at my earlier post here). Finally, the Texas Lawyer reports here that "Smell of Marijuana Smoke Not Probable Cause for Arrest." The article reports on a ruling that the Texas Court of Criminal Appeals issued this past Wednesday. You can access the majority opinion in that case here, separate concurrences here and here, and dissenting opinions here, here (the first paragraph of this dissent is simply "Amazing."), and here.
Posted at 11:36 by Howard Bashman



Via FindLaw, some documents of interest in the DC-area sniper prosecutions: FindLaw has made available the criminal charges filed by Maryland state prosecutors against John Allen Williams and John Lee Malvo. Also quite interesting is this letter dated October 24, 2002 from Virginia's Attorney General to United States Attorney General John Ashcroft in which Virginia's Attorney General asserts that "Virginia's laws, however, have a provision that would preclude a state-based prosecution if these suspects are prosecuted under federal law, including the return of an indictment or a filing of an information made by a United States Attorney. See Va. Code. Sec. 19.2-294." What that means in plain English is that if the U.S. Department of Justice were to charge the sniper suspects, the sniper suspects could no longer be prosecuted under Virginia law for the crimes they committed in that State. This point has not received adequate attention from the mainstream media -- at least not yet.
Posted at 11:25 by Howard Bashman



In Saturday's New York Times: Saturday's edition of The New York Times contains the following items likely to be of interest to readers of "How Appealing": 1. This article reports on the "rivalry" between prosecutors representing Maryland, Virginia, and the U.S. Department of Justice over which jurisdiction will be the first to bring the sniper suspects to justice. The article states that the USDOJ will get to decide which jurisdiction gets to hold the first trial and explains that the availability of the death penalty will loom large in that decision. 2. Reporter Adam Liptak, in a separate article, discusses the legal principles at work when multiple jurisdictions seek to try suspects on related charges. 3. In his op-ed column today, Frank Rich discusses "What Al Qaeda Learned in D.C." 4. Germany has asked the United States to drop plans to seek the death penalty against alleged twentieth hijacker Zacarias Moussaoui, Philip Shenon reports here. 5. Adam Liptak also has an article on the Minnesota succession laws that have become relevant following the very unfortunate death in a plane crash yesterday of Senator Paul Wellstone (D-MN). 6. Finally, The NYTimes contains a letter to the editor from Ralph Nader, who complains that a previous letter writer misrepresented Nader's views on abortion and Roe v. Wade.
Posted at 11:11 by Howard Bashman



Justice Stevens criticizes Supreme Court's federalism rulings at law school speech yesterday: The Associated Press reports here that Justice John Paul Stevens criticized the U.S. Supreme Court's federalism rulings at a speech he gave yesterday at the University of Illinois College of Law. During his talk, which was the inaugural Piper Rudnick-Vacketta Lecture on Government and the Law, Justice Stevens also commented on the logjam affecting federal court nominees.
Posted at 09:36 by Howard Bashman



Friday, October 25, 2002
On deck: Before turning in for the night, I hope to discuss here this decision that the Fifth Circuit issued today. But first, time to fire up the DVD player and watch "Y Tu Mama Tambien."
Posted at 20:07 by Howard Bashman



Adding insult to injury: The plaintiffs who lost a $133 million antitrust judgment in March 2000 when the Eighth Circuit reversed in Concord Boat Corp. v. Brunswick Corp. today received further bad news from that appellate court. Namely, those plaintiffs will need to pay the defendant more than $1 million for costs Brunswick incurred in defending against the suit. You can access today's Eighth Circuit ruling at this link. You can access the Eighth Circuit's ruling from March 2000 at this link.
Posted at 16:50 by Howard Bashman



Law school goes high-tech: Today's edition of The Los Angeles Times contains an article entitled "Future Lawyers Get a High-Tech Education."
Posted at 16:40 by Howard Bashman



Joseph Lelyveld reports from Guantanamo Bay, Cuba: The brand new edition of The New York Review of Books contains this essay by Joseph Lelyveld entitled "In Guantanamo." The essay reports on the use of the United States Naval Station there as a place for holding Taliban and al-Qaeda detainees.
Posted at 16:27 by Howard Bashman



New York State's highest court resolves welfare endangerment charges in cases involving accidental gun shootings by children: The Court of Appeals of New York yesterday decided two consolidated appeals arising out of particularly unfortunate factual scenarios: "These appeals involve the charge of endangering the welfare of a child as applied in the context of shooting accidents in which a child in the household of a gun owner obtained unauthorized possession of a weapon and inadvertently discharged it, resulting in another child's injury or death." You can access the court's ruling at this link. The Court of Appeals affirmed in both cases -- one in which the defendant's conviction was affirmed by an intermediate appellate court, and the other in which the defendant's conviction was set aside for insufficient evidence by an intermediate appellate court.
Posted at 16:18 by Howard Bashman



My lunch today with Third Circuit Chief Judge Edward R. Becker: In my spare time, I serve as co-chair of the Appellate Courts Committee of The Philadelphia Bar Association. In that capacity, I had the pleasure of hosting Third Circuit Chief Judge Edward R. Becker at the committee's lunch today. Chief Judge Becker is one of the smartest, most thoughtful, and hardest working federal appellate judges in the Nation. He is also a very kind and decent person. His first question to me, before the meeting got started, was to ask how many hits "How Appealing" receives on a daily basis. Yesterday this blog's hit counter showed 4,250 page hits -- an all time record! -- but on a typical weekday the answer is between 2,000 and 3,000 hits. Chief Judge Becker confirmed that the Third Circuit is looking to move its headquarters to a new location in Philadelphia, because the U.S. District Court for the Eastern District of Pennsylvania needs the entire building that the district court now shares with the Third Circuit. Chief Judge Becker also confirmed that the newest Third Circuit Judge, D. Brooks Smith, will be participating in next Wednesday's en banc rehearing in Philadelphia. You can get more details about that en banc case here. Finally, Chief Judge Becker explained that the Third Circuit recently decided to disfavor even more than before the granting of motions that seek an increase in the word limits applicable to appellate briefs.
Posted at 14:58 by Howard Bashman



Senator Paul Wellstone (D-MN) has died in a plane crash: The Washington Post has this report. WTOP-Newsradio, based in Washington, DC, is already theorizing about the effect of Senator Wellstone's death on which party will control the Senate in the upcoming lame-duck session. Update: Blogger Skip Oliva supplies some answers here, and InstaPundit provides additional links here.
Posted at 14:45 by Howard Bashman



California cities can't outlaw those pesky ATM fees for non-depositors, Ninth Circuit rules: The U.S. Court of Appeals for the Ninth Circuit today affirmed a federal district court's order invalidating municipal ordinances in San Francisco and Santa Monica that had prohibited banks and other financial institutions from charging ATM fees to non-depositors. You can access the Ninth Circuit's ruling at this link.
Posted at 14:40 by Howard Bashman



British appellate court upholds indefinite detention of terror suspects without trial: BBC News offers this report. You can access more information about the United Kingdom's post-September 11th anti-terrorism law here.
Posted at 09:42 by Howard Bashman



In Friday's newspapers: Friday's edition of The Christian Science Monitor contains this report on the Alabama Judicial Building Ten Commandments case. The New York Times reports here on yesterday's ruling by the U.S. Court of Appeals for the Third Circuit in the Tenafly eruv case. Finally, under the heading "don't kill us, we'll kill you," The Washington Post contains this report on how availability of the death penalty may influence where to prosecute the suspects in the DC-area sniper shootings.
Posted at 06:11 by Howard Bashman



Thursday, October 24, 2002
Pa. Superior Court tosses out class action judgment against Chrysler valued at nearly $60 million: You can access the court's ruling at this link. And tomorrow's edition of The Legal Intelligencer contains this report.
Posted at 21:57 by Howard Bashman



Dahlia Lithwick on the death penalty and the seventeen-year-old sniper suspect: Happily, I wasn't the only one to link-up the seventeen-year-old sniper suspect with the U.S. Supreme Court's debate over the death penalty for offenses committed before the age of eighteen. You can access here Dahlia Lithwick's jurisprudence essay published this afternoon at Slate. Those who would dismiss Lithwick as a wacky liberal may be surprised by the final paragraph of her essay:
To be sure, when Justice Stevens and the dissenters think about 17-year-old killers, they are imagining a psychosocial stew of hormones, playgrounds, shaming, and a lack of impulse control that usually characterizes teenage violence. This case--with its meticulously planned acts of depravity and craven attempts at pecuniary gain--doesn't fit very well with Stevens' social science. Perhaps that's why O'Connor and Kennedy voted as they did. In the wake of Columbine, and through the eyes of the blood-spattered, 17-year-old serial killers aren't always confused children with underdeveloped brains. Sometimes they're just evil.
Dahlia agrees with the views I expressed way back on September 2, 2002, long before the snipers launched their DC-area killing spree.
Posted at 21:44 by Howard Bashman



Tough sledding at the highest appellate podium in the land: Tom Goldstein, over at SCOTUSblog, has a very interesting report on some tough sledding he recently experienced at the highest appellate podium in the land.
Posted at 21:21 by Howard Bashman



Another mystery solved: On Tuesday, October 15, 2002, in a post entitled "A friendly reminder from the Seventh Circuit -- federal appellate judges are not pigs," I noted that the U.S. Court of Appeals for the Seventh Circuit had its opinion containing that friendly reminder, which issued on October 15th, withdrawn and vacated later that same day. Yesterday it became clear what happened. The opinion issued on October 15th appeared to be a unanimous opinion on behalf of a three-judge Seventh Circuit panel. The replacement opinion that issued yesterday, which you can access here, contained a dissent by Circuit Judge Diane P. Wood. While the dissent did not contend that federal appellate judges are in fact pigs, the dissent did assert that the panel should have taken a closer look at the record, because upon doing so it was clear that adequate facts existed to support the jury's verdict in favor of the plaintiff. As for why Circuit Judge Frank H. Easterbrook's majority opinion erroneously issued last week as though it were for a unanimous panel, all I can say is "oops"!
Posted at 20:55 by Howard Bashman



Access the federal firearm charges against the elder of the two sniper suspects: Here, courtesy of FindLaw.
Posted at 19:04 by Howard Bashman



Sidley Austin Brown & Wood must comply further with EEOC subpoena in case of 32 demoted partners: You can access today's ruling of the U.S. Court of Appeals for the Seventh Circuit, written by Circuit Judge Richard A. Posner, at this link. Circuit Judge Frank H. Easterbrook issued a separate opinion concurring in part and concurring in the judgment.
Posted at 16:09 by Howard Bashman



As the Tenafly eruv turns: The U.S. Court of Appeals for the Third Circuit today decided an important appeal involving religious conduct in the Borough of Tenafly, New Jersey. The Third Circuit's opinion explains:
The plaintiffs in this case are Orthodox Jewish residents of Tenafly whose faith forbids them from pushing or carrying objects outside their homes on the Sabbath or Yom Kippur. In accordance with a religious convention practiced by Orthodox Jews for over two thousand years, however, the plaintiffs believe they may engage in such activities outside their homes on the Sabbath within an eruv, a ceremonial demarcation of an area. An eruv extends the space within which pushing and carrying is permitted on the Sabbath beyond the boundaries of the home, thereby enabling, for example, the plaintiffs to push baby strollers and wheelchairs, and carry canes and walkers, when traveling between home and synagogue. Without an eruv Orthodox Jews who have small children or are disabled typically cannot attend synagogue on the Sabbath.
After the plaintiffs erected an eruv in the town, Tenafly ordered that it be taken down because it had been put up in violation of an ordinance that required advance permission from the local government, which had not been obtained. A federal district court in New Jersey denied the plaintiffs' request for a preliminary injunction prohibiting the removal of the eruv. Today the Third Circuit reversed, explaining:
The primary issues presented in this appeal from the District Court's order denying preliminary injunctive relief are whether the Free Speech and Free Exercise Clauses of the First Amendment allow the Borough of Tenafly, New Jersey, which has permitted various secularly motivated violations of a facially neutral ordinance, to invoke that ordinance against comparable religiously motivated acts by Orthodox Jews. Because there is no evidence that the acts in question are expressive, we hold that the Free Speech Clause does not apply. We further hold, however, that the Borough's selective enforcement of its ordinance likely violated the Free Exercise Clause. Because the other requirements for injunctive relief are satisfied, we reverse and direct the District Court to issue a preliminary injunction.
You can access the Third Circuit's ruling at this link.
Posted at 15:38 by Howard Bashman



Supreme Court of Arkansas allows tax repeal vote to proceed: A sharply divided Supreme Court of Arkansas today ruled 4-3 that the citizens of that State may vote next month on a referendum that, if passed, would repeal state taxes on the sale of food and medicine. You can access the court's ruling at this link.
Posted at 14:38 by Howard Bashman



Ring isn't lord of Florida's death penalty: The Supreme Court of Florida, in two separate decisions issued today (see here and here), rejected on procedural grounds the argument that the U.S. Supreme Court's recent ruling in Ring v. Arizona -- which requires that a jury find beyond a reasonable doubt all facts necessary to impose the death penalty -- required Florida's death penalty sentencing scheme, which is arguable inconsistent with Ring's holding, to be invalidated.
Posted at 14:17 by Howard Bashman



Virginia, yes; USA and Maryland, no: The only way that the seventeen-year-old arrested early this morning in connection with the DC-area sniper shootings could be sentenced to the death penalty is if he is prosecuted for murder in Virginia. The death penalty statutes that the federal government and the State of Maryland have on the books prohibit the death penalty for those who commit crimes before reaching the age of eighteen. You can access my earlier post on this subject at this link.
Posted at 14:11 by Howard Bashman



There they go again: Today the U.S. Court of Appeals for the Ninth Circuit issued an order denying a petition for rehearing en banc that the United States government filed seeking further review of a unanimous three-judge ruling in United States v. Sigmond-Ballesteros. Circuit Judge Andrew J. Kleinfeld dissented from the denial of rehearing en banc and issued a dissenting opinion in which five other judges joined. The dissenting opinion began:
KLEINFELD, Circuit Judge, with whom Circuit Judges KOZINSKI, O'SCANNLAIN, T. NELSON, GOULD and TALLMAN join, dissenting from denial of rehearing en banc:

Here we go again. The decision that we have decided not to rehear en banc defies a Supreme Court decision that reversed a previous decision of ours, making the identical error, arguably creates a mistaken rule on "profiling," and reduces America's ability to patrol its borders.
The dissent concludes with the following two paragraphs:
I have to wonder what a terrorist would have to do to be stopped lawfully, under the new rule of Sigmond-Ballesteros. Driving on a highway near the border during the wee hours when the checkpoints were closed and holding up his hand so that a border patrol agent couldn't see his face wouldn't do. Driving a vehicle with an odd, suspicious alteration wouldn't do. So long as he didn't violate the law, he'd be fine. I suppose he could have bumper stickers on his car proclaiming "Jihad!" with a picture of the destruction of the World Trade Center, and since the bumper sticker would be constitutionally protected and perfectly lawful speech, it couldn't be considered as adding significantly to the totality of the circumstances.

We have very open borders, which is a fine thing. And we have Border Patrol Agents to reconcile our openness with a bare minimum of national security and immigration control. Sigmond-Ballesteros takes away the opportunity to chat with drivers who, though law abiding so far as the agents can see, arouse suspicion through a number of indicia. That's dangerous and contrary to established law.
Given that the federal government sought rehearing en banc from the Ninth Circuit, it is quite possible that the federal government will file a cert. petition in this case with the Supreme Court of the United States.
Posted at 14:01 by Howard Bashman



More bad news for Theodore J. Boutrous, Jr.: Attorney Theodore J. Boutrous, Jr., who yesterday failed to succeed in his efforts to have the Supreme Court of California review a $290 million judgment against Ford Motor Company, today lost an appeal in the U.S. Court of Appeals for the Sixth Circuit when a divided three-judge panel upheld a jury's award of $3 million in punitive damages against Chrysler Corporation.
Posted at 09:42 by Howard Bashman



"And on the seventh day, they rested": That's how today's edition of The Montgomery (Alabama) Advertiser begins its article today on the closing arguments in the Alabama Judicial Building Ten Commandments case.
Posted at 09:30 by Howard Bashman



This morning's sniper arrests, and their impact on the juvenile death penalty debate: Early reports this morning indicate that the two men arrested in Maryland overnight are the prime suspects in the DC-area sniper spree. One of the two men is seventeen years old, and apparently there is also evidence that links this young man to a killing that occurred in Montgomery, Alabama.

Coincidentally, today's edition of The New York Times contains an editorial calling on the U.S. Supreme Court to rule that the death penalty is cruel and unusual punishment for crimes committed before the age of eighteen. Yesterday, The Washington Post contained an editorial that advanced the same argument. You can access my prior posts on the U.S. Supreme Court's recent actions concerning the death penalty for sixteen- and seventeen-year-old offenders here and here.

If the seventeen-year-old individual arrested this morning in fact is eligible for the death penalty for having had a role in the sniper shootings, it will be interesting to see what impact that will have on the debate over whether the death penalty should be available to punish those who commit horrific crimes before reaching the age of eighteen.
Posted at 09:14 by Howard Bashman



Interesting abortion ruling from the Supreme Court of Arizona: The Supreme Court of Arizona ruled by a sharply divided vote on Tuesday of this week that it was unlawful for that State to fund abortions for victims of rape or incest, or for women who needed an abortion to save their lives, while refusing to fund abortions for women who were seriously ill. The majority opinion framed the issue in these terms: "Once the state has chosen to fund abortions for one group of indigent, pregnant women for whom abortions are medically necessary to save their lives, may the state deny the same option to another group of women for whom the procedure is also medically necessary to save their health?" You can access the court's 3-2 ruling at this link.
Posted at 06:48 by Howard Bashman



In Thursday's newspapers: Today's edition of The Washington Post contains an editorial arguing that President Bush should engage in "meaningful consultation" with the Senate before nominating individuals to serve on the U.S. Court of Appeals for the D.C. Circuit. The Post also contains this article reporting on the Alabama Judicial Building Ten Commandments case.

An editorial in today's edition of The New York Times calls for an end to the death penalty for crimes committed before the age of eighteen. The editorial criticizes Justices Sandra Day O'Connor and Anthony M. Kennedy for failing to explain the basis for their position on the issue. This article reports on the Second Circuit's ruling yesterday that reversed a ban on TV as a condition of a federal criminal defendant's sentence of house arrest. The defense will suggest that it be replaced with a ban on bad TV programs (that's an attempt at humor, folks). Finally, this article reports on the latest developments in the habeas corpus case filed by Jose Padilla, the alleged dirty bomber and enemy combatant.
Posted at 06:34 by Howard Bashman



Today's FindLaw columnist has bad news for petitioners in Eldred v. Ashcroft: Law Professor Marci A. Hamilton, in her column today on FindLaw, predicts that the U.S. Supreme Court will uphold the copyright extension law being challenged in Eldred v. Ashcroft.
Posted at 06:18 by Howard Bashman



Now available online at law.com: Jason Hoppin of California's The Recorder updates here the status of the Ninth Circuit's ruling in the Pledge of Allegiance case. Separately, he reports here on a U.S. Supreme Court "fantasy league." The Recorder also offers this coverage of the California Supreme Court's decision yesterday to deny review of the $290 million judgment against the Ford Motor Company in a Bronco rollover case. In other news, this article reports that "Brooklyn District Attorney Charles J. Hynes has decided not to seek an appeal to the U.S. Supreme Court of the New York Court of Appeals decision that overturned the first death verdict imposed under the state's 1995 law." And finally, readers who like to debate the difference between "or" and "and" will enjoy this article about a referendum to amend Florida's state constitution to replace its prohibition on "cruel or unusual punishment" with a ban on "cruel and unusual punishment."
Posted at 06:12 by Howard Bashman



Wednesday, October 23, 2002
Dahlia Lithwick reviews Ken Starr's new book: I'm going to call this a negative review of Kenneth W. Starr's new book about the U.S. Supreme Court, entitled "First Among Equals: The Supreme Court in American Life." You can access two other, somewhat more favorable reviews via links you will find here and here.
Posted at 22:55 by Howard Bashman



$290 million here, $290 million there, and soon you're talking real money: The Associated Press is reporting this evening that the Supreme Court of California has refused Ford Motor Company's request for further review of an intermediate appellate court's ruling that upheld a $290 million verdict in a case involving "a deadly 1993 rollover accident involving a Ford Bronco." You can access the court's order list here. The AP report quotes Ford's lawyer as saying that the company plans to seek review next from the Supreme Court of the United States.
Posted at 19:36 by Howard Bashman



Sen. Orrin G. Hatch discusses impact of November elections on judicial confirmations: Senator Orrin G. Hatch (R-Utah) appeared this morning on CNN to promote his new book, "Square Peg." During the interview, Senator Hatch had this to say about the November elections and President Bush's judicial nominees:
[I]t's an election that really is going to make a difference. You know, whether or not President Bush is going to be able to get the judges that he's picked through. He's picked some of the best in history. I've been there 26 years and I've never seen any better judgeship nominees. But it's like a slow walk all the way through. Every time we turn around, they're slowing down another person or stopping one. Some of the original circuit court of appeals nominees, really the best I've ever seen, they're now still sitting there a year and a half later.
You can access the entire transcript of CNN's interview this morning with Senator Hatch at this link.
Posted at 16:54 by Howard Bashman



No TV for ten months -- now that's cruel and unusual punishment: A three judge panel of the U.S. Court of Appeals for the Second Circuit today set aside a defendant's criminal sentence "insofar as it imposes as a condition of probation a bar on television-viewing during a ten-month period of home detention." The appellate court sent the case back to the trial judge for resentencing, and the new sentence could include prison time -- in place of the original all probation sentence. You can access the court's opinion here.
Posted at 15:49 by Howard Bashman



"Lawyer girls": Catherine Seipp of United Press International reviews here David E. Kelley's newest lawyer drama, "girls club." I didn't see the premiere episode, but I do have it on videotape, and I fear that the show will be much less entertaining than Seipp's review. (Via InstaPundit.)
Posted at 15:34 by Howard Bashman



Divided Michigan Court of Appeals panel reverses large judgment against Jenny Jones Show: In a decision that issued yesterday, a divided three-judge panel of the Michigan Court of Appeals reversed a judgment totaling more than $29 million entered against Warner Bros. and the Jenny Jones Show on a wrongful death claim that arose from the murder of Scott Amedure. You can access the majority opinion here and the dissenting opinion here. The majority opinion concludes:
In sum, we conclude that defendants owed no duty as a matter of law to protect plaintiffs' decedent from the intentional criminal acts of a third party, Jonathan Schmitz, that occurred three days after the taping of the Jenny Jones Show. While defendants' actions in creating and producing this episode of the show may be regarded by many as the epitome of bad taste and sensationalism, such actions are, under the circumstances, insufficient to impute the requisite relationship between the parties that would give rise to a legally cognizable duty. The trial court therefore erred in denying defendants' motions in this regard. Because we find no antecedent duty, we need not address the other issues raised by defendants on appeal. Accordingly, we reverse, vacate the judgment, and remand to the trial court with directions that it enter judgment in favor of defendants.
The majority's opinion was written by Judge Richard Allen Griffin, whom President Bush has nominated to fill a vacancy on the U.S. Court of Appeals for the Sixth Circuit.

Update: The Associated Press offers this coverage of the ruling, and The AP's article notes that while the decision may have been dated yesterday, the court didn't release the ruling until today.
Posted at 14:06 by Howard Bashman



Unanimous Ninth Circuit panel allows nationalized Iranian bank to avoid liability on huge terrorism-related judgment against The Islamic Republic of Iran: You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 13:44 by Howard Bashman



U.S. Department of Defense responds to American Bar Association's report on the detention of enemy combatants: The United States Department of Defense has, through its general counsel, issued a letter responding to the American Bar Association's report that criticized the federal government's policies on the detention of enemy combatants. Thanks to The Federalist Society for its email this afternoon alerting me to the DOD's letter.
Posted at 12:56 by Howard Bashman



From today's Atlanta Journal-Constitution: An article entitled "Court eases judicial campaign rules; Candidates can solicit cash, criticize rivals." You can access my report on the Eleventh Circuit's ruling at issue in today's AJC article at this link.
Posted at 09:56 by Howard Bashman



Am I in a church, or Alabama's Judicial Building? According to this report from today's edition of The Montgomery (Alabama) Advertiser, that's what an expert who visited the Ten Commandments monument contained in Alabama's Judicial Building thinks some people would ask themselves upon viewing the monument. Closing arguments in the case -- a federal court challenge to the monument -- are due to get underway this morning. Since the case is being tried to a trial judge sitting without a jury, a ruling is not expected until mid-November 2002. In what may be the understatement of the year, today's article reports that the trial judge believes the losing party is likely to appeal.
Posted at 09:49 by Howard Bashman



Of note: Thanks to the kind folks at Blogger for listing "How Appealing" among the "blogs of note" featured on Blogger's home page. How does a blog get selected for inclusion there? I've been wondering that myself. I can tell you that inclusion on that list definitely produces more traffic than usual, especially from outside of the United States. (Perhaps the most interesting visit "How Appealing" has received this morning originates from a domain identified as "relay2.parliament.uk," which of course comes from the official site for the United Kingdom Parliament. That visitor, however, appears to have reached here directly, rather than via a link from Blogger's home page.)
Posted at 09:38 by Howard Bashman



In Wednesday's newspapers: The Washington Post contains an editorial calling on the U.S. Supreme Court to declare the imposition of the death penalty for crimes committed by persons under eighteen years of age to be cruel and unusual punishment. You can access here my report on the Court's 5-4 refusal to consider such a case on Monday of this week. Also in The Post, columnist David S. Broder summarizes Congress's accomplishments so far this year, and he mentions that "The Senate, without debate or dissent, approved a House-passed bill reaffirming that the words 'under God' shall remain in the Pledge of Allegiance."

Coincidentally, in The New York Times, reporter Adam Liptak updates the status of the Ninth Circuit's ruling in the Pledge of Allegiance case. The final two paragraphs of Liptak's article contain some thoughts that I communicated to him in an interview yesterday morning (oh yeah, I'm also mentioned by name in those paragraphs). The United States' success in capturing high-ranking al Qaeda operatives ironically may harm the prosecution against Zacarias Moussaoui, Philip Shenon reports here. Finally, The NYTimes contains this article explaining that the U.S. Supreme Court's denial of review in two cases on Monday will lead to increased public beach access in California.
Posted at 00:12 by Howard Bashman



Iowa prosecutors discontinue efforts to obtain pregnancy test records from Planned Parenthood in effort to determine mother of abandoned dead baby: The Supreme Court of Iowa was preparing to hear the case, but that will no longer be necessary, according to this report from The Associated Press.
Posted at 00:07 by Howard Bashman



Tuesday, October 22, 2002
Your humble blog host, mentioned in Wednesday's edition of The New York Times: Tomorrow's edition of The New York Times contains an article by Adam Liptak entitled "Child Custody Wades Into Pledge Case." The final two paragraphs of the article mention me and contain some thoughts that I communicated to Liptak in an interview earlier today in which we discussed recent developments that may affect the Ninth Circuit's ruling in the Pledge of Allegiance case. You can access my blog post detailing those recent developments at this link.
Posted at 23:52 by Howard Bashman



Now available online at law.com: This article from The National Law Journal about South Dakota's proposed jury nullification constitutional amendment, the text of which you can access via my earlier post here; and this article about a recent Fourth Circuit sexual harassment decision, which you can access via my earlier post here.
Posted at 22:17 by Howard Bashman



Reader mail, part two -- Justice Stephen G. Breyer and his passion for foreign law: The following email arrived tonight from someone who clerked at the U.S. Supreme Court last Term:
Hi Howard -- I clerked at the SCOTUS last term and am now spending some time in England seeing their wacky system up close. I've had lots of interesting discussions here with members of the English bar including judges and members of the House of Lords regarding the use of international law by US courts. Needless to say, they're are all for it and point to Breyer as the model American judge because he's so willing to look to foreign judgments. But let it be known that Breyer's use of foreign law is a total sham! He cites it when it supports his view (death penalty) and wholly ignores it otherwise (almost every other case). An example from last term is the virtual child pornography decision, in which the Court struck down the CPPA under the 1A. The briefing informed the Court that most EU countries have legislation identical to the CPPA and warned that striking down the law might seriously impede prosecution of child pornography; the internet being borderless, etc. Yet no foreign law was cited or discussed in the 6-3 majority (which Breyer joined). This is not surprising. One need only spend a few weeks working in England or with EU law generally to see the dishonesty of Breyer's loose association with foreign judgments. For were the Court to look regularly to international law in constitutional cases, the result would be a dramatic rightward shift in constitutional jurisprudence: (1) First Amendment doctrine would be scaled back, since American protections are far greater than here or the EU; (2) Habeas Corpus could be strictly limited, since defendants in England and in most of Europe have either no appeal of right (England) or only one shot with no prospect of collateral judicial review (new EU countries); (3) the Court's hemming and hawing of late about civil commitment of sexual predators would be moot -- in England, sexual offenders are committed indefinitely with no judicial review; (4) Establishment Clause doctrine could be reigned in or at least given some healthy perspective. (The legal year in England opens with all judges attending a ceremony in Westminster Abbey, singing hymns, saying the lords prayer, etc.)

These are just broad examples off the cuff. I could come up with more. But the Breyer/Thomas debate struck a nerve so I thought I'd write a quick note. Keep up the good work! (I have written a couple times in the past and read your site regularly, btw.)
If it's not obvious already, my correspondent clerked last year at the Court for someone other than Justice Stephen G. Breyer.
Posted at 20:55 by Howard Bashman



Reader mail, part one -- Circuit Judge Frank H. Easterbrook predicts teams in the next Super Bowl: Thanks to a regular reader of "How Appealing" who is currently clerking for a judge on the U.S. Court of Appeals for the Seventh Circuit for drawing to my attention this feature on ESPN's Web site where Circuit Judge Frank H. Easterbrook has predicted (click here, then scroll slightly more than halfway down the page) the two NFL teams that he believes will face each other in the upcoming Super Bowl. As one contributor to the Greedy Clerks message board notes in a post you can access here, the surprising thing is that neither of Judge Easterbrook's choices is based in the Seventh Circuit.

Update: For those who have been wondering whether author/scholar Gregg Easterbrook, who wrote the ESPN piece, is in fact the brother of Circuit Judge Frank H. Easterbrook, as the ESPN piece seems to say, the answer is certainly yes. See this earlier Gregg Easterbrook article originally published in The New Republic.
Posted at 20:49 by Howard Bashman



Does a claim for loss of consortium have anything to do with, um, sex? The Supreme Court of Pennsylvania heard oral arguments yesterday in a defamation case presenting that question, The Legal Intelligencer reports here.
Posted at 14:37 by Howard Bashman



The Ninth Circuit wants your views on its approach to "unpublished opinions": The U.S. Court of Appeals for the Ninth Circuit has asked for comments on its interim Circuit Rule 36-3, governing "Citation of Unpublished Dispositions or Orders," and the deadline for submission of such comments is this Friday. I have explained why the Ninth Circuit is on the entirely wrong side of the unpublished opinion dispute in my monthly appellate column published in January 2002 in The Legal Intelligencer. Astonishingly, the Ninth Circuit's request for comments implies that the court is considering whether to adopt an even more restrictive policy against citing to unpublished opinions. As I explained in my January 2002 appellate column, "Critics of the Ninth Circuit might observe that it is not surprising that its judges refuse to be bound by that court's unpublished opinions, because Ninth Circuit judges so often flout the rule that the court's own published opinions serve as binding precedent."
Posted at 14:22 by Howard Bashman



The New Republic covers Eldred v. Ashcroft: The New Republic magazine has just posted online an essay about Eldred v. Ashcroft by legal affairs editor Jeffrey Rosen. In his essay, Rosen writes that "Now the Court has before it a law that is constitutionally offensive on every level." (Via LawMeme.)
Posted at 13:57 by Howard Bashman



President Bush makes the Senate's handling of his judicial nominations an issue while campaigning for congressional candidates: The Associated Press has this report, from the Philadelphia suburb of Downingtown, Pennsylvania.
Posted at 13:22 by Howard Bashman



Dueling experts: Although duels are viewed as anachronistic in the United States these days (but see this humor piece from the current issue of The New Yorker), today's edition of The Montgomery (Alabama) Advertiser reports here that "Dueling experts disagreed Monday on the Founding Fathers' religious views as the federal trial over Alabama Supreme Court Chief Justice Roy Moore's Ten Commandments monument entered its second week." According to today's article, closing arguments in the Alabama Judicial Building Ten Commandments case are expected to occur tomorrow morning.
Posted at 13:13 by Howard Bashman



Meanwhile, in Los Angeles: Beach access and free speech for gang members top the coverage of happenings yesterday at the U.S. Supreme Court as reported in today's edition of The Los Angeles Times.
Posted at 07:35 by Howard Bashman



In Tuesday's newspapers: In The Washington Post, yesterday's death penalty dissents top Charles Lane's coverage of the U.S. Supreme Court. By contrast, Linda Greenhouse of The New York Times leads her report with a non-death penalty, state court sentencing enhancement case in which the Justices have sought the views of the U.S. Solicitor General. Elsewhere in The NYTimes, Adam Liptak sums up two of this past Friday's most interesting federal appellate court rulings -- the NRA sticker automobile search case from Texas and the judicial election free speech case from Georgia. You can access my reports on those two rulings here and here, respectively.
Posted at 00:51 by Howard Bashman



Monday, October 21, 2002
Now online at law.com: According to this report, the U.S. Court of Appeals for the Second Circuit heard oral argument today in an appeal challenging U.S. District Judge Jed S. Rakoff's ruling that declared the federal death penalty unconstitutional because it has an unacceptably high rate of error. You can access my detailed analysis of Judge Rakoff's ruling at this link. Jonathan Ringel of the Fulton County Daily Report has an article explaining that the U.S. Court of Appeals for the Eleventh Circuit has "Kill[ed] Georgia's Judicial Campaign Curbs." As I had anticipated, most lawyers have little favorable to say about the ruling -- except me, that is. This topically related op-ed (free registration required) from today's edition of The Legal Times discusses efforts at reforming judicial elections. In an article you can access here, Tony Mauro sums up today's happenings at the U.S. Supreme Court. Finally, this report describes an idea some lawyers have come up with to try to avoid a U.S. Supreme Court ruling that Interest On Lawyer Trust Account programs constitute takings without just compensation, but the idea on first glance seems to me to be rather unlikely to succeed.
Posted at 23:34 by Howard Bashman



Justice Clarence Thomas starts off 2002 Term by blasting Justice Stephen G. Breyer's dissent from denial of cert. in death penalty delay case: As I previously noted, Justice Stephen G. Breyer also dissented today from the U.S. Supreme Court's denial of certiorari in a case in which a defendant sentenced to death in Florida argued that the twenty-seven year (and counting) delay in carrying out his sentence of death constituted cruel and unusual punishment entitling him to have his death sentence vacated. I found Justice Clarence Thomas's response to Justice Breyer's dissent so powerful that it is worth quoting here in full:
In the three years since we last debated this meritless claim in Knight v. Florida, 528 U. S. 990 (1999) (THOMAS, J., concurring), nothing has changed in our constitutional jurisprudence.* I therefore have little to add to my previous assessment of JUSTICE BREYER's musings. See id., at 992 ("Consistency would seem to demand that those who accept our death penalty jurisprudence as a given also accept the lengthy delay between sentencing and execution as a necessary consequence").
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fn* JUSTICE BREYER notes that the Supreme Court of Canada has expressed concern over delays in the administration of the death penalty in the United States. Post, at 2-3. I daresay that court would be even more alarmed were there, as Blackstone commended, only a 48-hour delay between sentence and execution. Knight, 528 U. S., at 990-991, n. 1 (THOMAS, J., concurring) (citing 4 W. Blackstone, Commentaries *397). In any event, JUSTICE BREYER has only added another foreign court to his list while still failing to ground support for his theory in any decision by an American court. Id., at 990. While Congress, as a legislature, may wish to consider the actions of other nations on any issue it likes, this Court's Eighth Amendment jurisprudence should not impose foreign moods, fads, or fashions on Americans. Cf. Atkins v. Virginia, 536 U. S. --, -- (2002) (REHNQUIST, C.J., dissenting) (slip op., at 1-2).
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This Court's vacatur of a death sentence because of constitutional error does not bar new sentencing proceedings resulting in a reimposition of the death penalty. Petitioner seeks what we would not grant to a death-row inmate who had suffered the most egregious of constitutional errors in his sentencing proceedings--a permanent bar to execution. Murderers such as petitioner who are not apprehended and tried suffer from the fear and anxiety that they will one day be caught and punished for their crimes--perhaps even sentenced to death. Will JUSTICE BREYER next have us consider the constitutionality of capital murder trials that occur long after the commission of the crime simply because the criminal defendants, who have evaded capture, have been so long suffering?

Petitioner could long ago have ended his "anxieties and uncertainties," post, at 3, by submitting to what the people of Florida have deemed him to deserve: execution. Moreover, this judgment would not have been made had petitioner not slit Julian Lanier's throat, dragged him into bushes, and then, when petitioner realized that he could hear Lanier breathing, cut his spine. 369 So. 2d 928, 929 (Fla. 1979).
It would only add insult to injury to observe that none of the other Justices joined in Justice Breyer's dissent.
Posted at 23:02 by Howard Bashman



Trying to understand Justice Souter's position on the death penalty for crimes a defendant commits before the age of eighteen: On August 28, 2002, the Supreme Court of the United States denied a petition for writ of certiorari in a case contending that it was unconstitutional for the death penalty to be imposed for crimes a defendant commits before the age of eighteen. Justice John Paul Stevens dissented, as did Justices Ruth Bader Ginsburg and Stephen G. Breyer (see here and here, respectively). Justice David H. Souter, however, did not join the other three in voting to grant cert., and he couldn't join the other three in dissenting from the denial of cert., because it only takes four votes to grant cert. Justice Souter's silence struck me as a little odd at the time, as I explained here.

Today Justice Souter's silence ended, as he joined with the other three dissenters from late August in dissenting from the Court's denial of an application for an original writ of habeas corpus presenting the very same question. You can access today's dissent here. Unlike a cert. petition, where only four votes are required to grant review, it takes five votes for the Court to grant review of an application for an original writ of habeas corpus. So, today Justice Souter was able to join his three other colleagues in expressing his position that this issue is deserving of review.

Justice Souter's action in joining today's dissent raises more questions than it answers. For example, why did he get to be the one who refrained from joining the dissent in late August? Did he draw the shortest straw, or does he find executing defendants for crimes committed before the age of eighteen to be least objectionable when compared to his other three colleagues? Today's result makes it pellucidly clear that a fifth vote is lacking to declare this application of the death penalty unconstitutional. The next time that this issue arises via a cert. petition, perhaps all four of these Justices could dissent, not from the denial of cert., but from the unavailability of a fifth vote to reverse on the merits.
Posted at 21:30 by Howard Bashman



And today's prize for most dissents from denial of certiorari goes to: Justice Stephen G. Breyer, who today managed to dissent from the denial of certiorari in three separate cases -- the case in which the U.S. Supreme Court refused to review whether the death penalty may constitutionally be applied to punish a defendant for a crime that he committed before the age of eighteen; the case in which the Court refused to review whether a twenty-seven year delay (and counting) before imposition of the death penalty is cruel and unusual punishment; and, finally, the case of Alderman v. Head (see page 12 of this PDF file), which is apparently a state court habeas corpus suit arising from the Supreme Court of Georgia.
Posted at 21:21 by Howard Bashman



Where have all the federal appellate judges gone? Tony Mauro reports in today's edition of The Legal Times that federal appellate judges from throughout the Nation are convening in Washington, DC today to discuss "workload issues and trends in the law ranging from federalism to habeas corpus." According to the report, such meetings occur about every five years. The appellate judges are scheduled to hear from four U.S. Supreme Court Justices (the Chief Justice and Justices Stevens, O'Connor, and Breyer).
Posted at 16:38 by Howard Bashman



Today's U.S. Supreme Court commentary: In today's edition of The Los Angeles Times, Law Professor Jonathan Turley previews here a case from Texas that, if review is granted, would allow the Court to reconsider its 1986 decision in Bowers v. Hardwick. At FindLaw, Law Professor Anthony J. Sebok previews here a case already on the Court's docket involving when workers with significant asbestos exposure can sue for fear of developing cancer (and more details about this case are available here and here).
Posted at 16:15 by Howard Bashman



Former Louisiana Governor Edwin Edwards has reported to federal prison: The Associated Press offers this report, which notes that Gov. Edwards is currently seeking review from the U.S. Supreme Court of the Fifth Circuit's decision affirming his criminal conviction.
Posted at 15:13 by Howard Bashman



So much for those vaunted fact checkers: The New Yorker magazine available on newsstands today contains this Talk of the Town piece about a John Ashcroft snow globe. The article includes a quote which inaccurately asserts that President Clinton had nominated Missouri Supreme Court Judge Ronnie White to a federal appellate court vacancy. In fact, President Clinton had nominated Judge White for a seat on the federal district court (see here and here), which is the trial court level of the federal judicial system.
Posted at 13:56 by Howard Bashman



Some commentary on Tony Mauro's article about this year's crop of U.S. Supreme Court law clerks: Blogger Stuart Buck, who recently completed a judicial clerkship for a judge on the U.S. Court of Appeals for the D.C. Circuit, has some interesting thoughts on Tony Mauro's article about this year's crop of U.S. Supreme Court law clerks.
Posted at 13:20 by Howard Bashman



Even more summaries from The AP of today's U.S. Supreme Court orders: Gina Holland reports here that "Court Backs Off Calif. Beach Fight," and she reports here that "Court Refuses Judicial Campaign Case." Eun-Kyung Kim reports here that "Court Won't Hear Ariz. Gang Case."
Posted at 12:28 by Howard Bashman



Law Prof. Eugene Volokh sums up nicely the other case in which an opinion concerning the denial of cert. issued today: You can access his post here.
Posted at 11:45 by Howard Bashman



A capital punishment defendant complains, "You're not killing me promptly enough": Today was a big day at the U.S. Supreme Court for opinions respecting, concurring in, or dissenting from the denial of certiorari. Five such separate opinions issued, and you can access links to all of them here. Three of the five orders (see here, here, and here) issued in a case in which the Court refused to review the claim of a criminal defendant sentenced to death that the State of Florida's delay in carrying out his sentence -- he's been on death row for twenty-seven years now -- constitutes cruel and unusual punishment.
Posted at 11:35 by Howard Bashman



More info on U.S. Supreme Court's refusal of review today in teen death penalty case: Today's denial of review came in the context of an application for an original writ of habeas corpus in which the petitioner asked the Court to hold that his execution would be unconstitutional because he was under the age of eighteen when he committed his offense. Unlike in late August, today Justice David H. Souter joined with Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer in dissenting from the denial of review. The existence of four dissenters demonstrates that sufficient votes exist for the grant of review in a case presenting this issue. It also demonstrates that sufficient votes do not exist to declare unconstitutional the execution of a defendant who was seventeen at the time of the crime. Update: You can now access the dissent at this link.
Posted at 10:53 by Howard Bashman



The Associated Press covers today's U.S. Supreme Court orders: Gina Holland has two articles that are already online: here she reports that "Court Refuses Teen Execution Case"; here she reports that "Court Refuses Police Search Cases"; and here she reports that "Court Won't Block N.C. Medicaid Suit."
Posted at 10:37 by Howard Bashman



Official U.S. Supreme Court order list now online: You can access it here, via the Court's own Web site.
Posted at 10:36 by Howard Bashman



This morning's U.S. Supreme Court order list: You can access it here. Cert. granted in one case, and the U.S. Solicitor General invited to express views in another.
Posted at 10:22 by Howard Bashman



AP news alert: "WASHINGTON -- Sharply divided Supreme Court refuses to consider ending the execution of killers who were under 18 when they committed their crimes." You can access here my lengthy post of September 2, 2002 addressing the Court's refusal on August 28, 2002 to hear a different case presenting the same issue.
Posted at 10:11 by Howard Bashman



U.S. Supreme Court orders to issue momentarily: The U.S. Supreme Court is due to issue orders momentarily, and then it will take its first recess of the 2002 Term, returning to hear oral arguments and issue more orders on Monday, November 4, 2002.
Posted at 09:58 by Howard Bashman



In Monday's Christian Science Monitor: Today's edition of The Christian Science Monitor contains an article entitled "Can you protest in a public mall? Las Vegas case tests the limits of free speech in enclosed shopping areas backed by public money." The article describes the facts of an appeal pending before the U.S. Court of Appeals for the Ninth Circuit. The article also notes that the Tenth Circuit recently decided an appeal presenting a similar question, and law blogger Fritz Schranck provides a detailed explanation of the Tenth Circuit's ruling at this link.
Posted at 00:12 by Howard Bashman



Sunday, October 20, 2002
Another law student blog, and another first-hand account of the Eldred v. Ashcroft oral argument: The author of "Plastic Shamanism" not only attends law school, but he also offers a quite interesting first-hand account of his efforts to attend the U.S. Supreme Court oral argument in Eldred v. Ashcroft. The lessons for someone who is not a member of the Court's bar: either attend the Court on a day when only the really boring cases are being argued; get in line outside the Court really, really early; or get on the list of someone who has tickets to offer.
Posted at 23:45 by Howard Bashman



Too true: Sad to say, tonight's episode of Harvey Birdman, Attorney at Law is a repeat, although nevertheless a very good episode, featuring the Japanese band Shoyu Weenie. Which leaves me a few moments to point out the following two blogging related observations: here, from Tom Tomorrow; and here, from Andrew Sullivan.
Posted at 23:36 by Howard Bashman



New developments in the Ninth Circuit Pledge of Allegiance case: There are two new developments to report on in the Ninth Circuit case that prohibited school children from reciting the words "under God" in the Pledge of Allegiance. (You can access the Ninth Circuit's opinion at this link.) First, according to this news report published last Friday and this editorial published today in The Sacramento Bee, a Sacramento County, California family court judge has ruled that the plaintiff in the Pledge of Allegiance case, Michael A. Newdow, can no longer claim to be representing his daughter in that suit. Second, the Ninth Circuit panel that issued the original ruling has recently entered an order requiring supplemental briefs on two issues: (a) "Whether under California state law the award of sole legal custody to one parent deprives the other of standing to object on constitutional grounds to the contents of school curricula, observances, and ceremonies affecting the child's education and religious upbringing"; and (b) "If the answer is yes, is the California rule constitutional?" These supplemental briefs are due to be filed with the Ninth Circuit in early November 2002. So, if you were wondering when a ruling on the long-pending petitions for rehearing en banc in the Newdow case might issue, the answer seems to be not very soon.
Posted at 17:30 by Howard Bashman



Let's not forget Sixth Circuit nominee John M. Rogers: With all the attention that's been focused in recent weeks on whether three surprisingly controversial federal appellate court nominees would receive votes on their nominations from the Senate Judiciary Committee before the current session of Congress expires, comparatively little attention has been paid to the nomination of University of Kentucky College of Law Professor John M. Rogers to the U.S. Court of Appeals for the Sixth Circuit -- a federal appellate court that is horrifically understaffed, with seven vacancies among its sixteen authorized active judgeships. Rogers's nomination to the Sixth Circuit seems entirely non-controversial. The Senate Judiciary Committee held a hearing on his nomination on June 13, 2002, and on July 11, 2002 the committee recommended by voice vote that the full Senate confirm the nomination. A voice vote of the Senate Judiciary Committee only occurs for the most non-controversial nominees. But, since July 11, 2002, Rogers's nomination has not come before the full Senate for a vote. When the Senate returns this fall for its lame-duck session, one hopes that it will find time to confirm Professor Rogers to the Sixth Circuit.

Update: A long-time reader and recent Ninth Circuit law clerk who has obviously given Sunday's edition of The Washington Post a close read emailed to point out this article, which states that "The Senate confirmed 80 of Bush's 130 judicial nominees, with another 18 scheduled for action in the post-election session. The Judiciary Committee rejected two, and 32 await committee action." The number eighteen refers to the seventeen federal district court nominees approved by the Senate Judiciary Committee who now await full Senate action and to Professor Rogers. So, if the article is correct in reporting that Professor Rogers's nomination already is "scheduled for action" in the post-election session, that would be very good news indeed.
Posted at 15:14 by Howard Bashman



In Sunday's newspapers: Today's issue of The Washington Post contains a front page article entitled "Republicans Planning for Full Control Of Congress." Of particular relevance, the article reports:
If Republicans regain the majority, they may begin passing Bush-backed bills even before the new Congress convenes in January. That's because a quirk of this year's elections might turn Republicans into the majority party for a lame-duck session. The contest between Sen. Jean Carnahan (D-Mo.) and former representative James M. Talent (R) is considered a special election because she was appointed to office for two years after voters elected her late husband, Mel Carnahan. If Talent wins, he could be seated as soon as the election results are certified.

Republican sources said planning is underway for such an opportunity. Sen. Trent Lott (R-Miss.), who was majority leader before the Democrats took over, would bring stalled bills to the floor, starting with one on a homeland security department. Republicans would also try to confirm many Bush-nominated federal judges, the sources said.
Today's edition of The Los Angeles Times contains three letters to the editor on the subject of Eldred v. Ashcroft. Two of the three letters are critical of the effort to "free the mouse." The first letter begins, "Stanford law professor Larry Lessig is to creators of intellectual property what U.S. Atty. Gen. John Ashcroft has been to the United States Constitution." Perhaps the author of that letter believes the U.S. Supreme Court should rule in favor of neither party.
Posted at 15:04 by Howard Bashman



Congratulations to Glenn Harlan Reynolds of InstaPundit fame for his mention in the cover story of today's New York Times Magazine, written by NYTimes columnist Paul Krugman.

A separate article contained in today's edition of the NYTimes Magazine may also be of interest -- it reports on how "the producers and writers who fashion many of the most popular programs on television" rely heavily on feedback posted to Internet fan sites. As that article explains:
It would be simple to underestimate the intensity with which Web sites fetishize TV programs -- and the impact they have on the show's creators. It is now standard Hollywood practice for executive producers (known in trade argot as ''show runners'') to scurry into Web groups moments after an episode is shown on the East Coast. Sure, a good review in the print media is important, but the boards, by definition, are populated by a program's core audience -- many thousands of viewers who care deeply about what direction their show takes.
I've even experienced something similar here at "How Appealing." Sometimes judicial law clerks and news correspondents who write articles that might be of interest to this blog's readership email to point out their latest article or their judge's latest opinion. And I have to think that these law clerks and reporters derive even more satisfaction when I post links to their work that I've discovered, and found to merit mention, on my own.
Posted at 14:48 by Howard Bashman



Saturday, October 19, 2002
Coverage of yesterday's developments in the Alabama Judicial Building Ten Commandments case: Available here, courtesy of The Montgomery (Alabama) Advertiser.
Posted at 23:11 by Howard Bashman



Inside baseball: Sometimes when reporters for the popular press call me to discuss new court rulings or legal issues of significance and I make what seems to me to be a particularly insightful comment, the reporters will remark that my comment is "too inside baseball" for it ever to make it past their editors into print. Apparently the general public's appetite for sophisticated legal commentary is limited, while its appetite for dumbed-down legal commentary is boundless. Well, this post, even by my own reckoning, involves an issue of "inside baseball" that only individuals interested in the administration of justice in our Nation's federal appellate courts likely will find of interest.

My monthly appellate column that appeared in April 2001 in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, was entitled "Recused Federal Appellate Judges Should Not Be Counted As Voting Against Petitions For Rehearing En Banc." That column discussed how different federal appellate courts throughout the Nation have differing approaches to determining whether a majority of the judges in regular active service has voted in favor of rehearing en banc. On October 7, 2002, The National Law Journal ran a piece by its appellate columnist, Mark R. Kravitz, arguing for the adoption of a uniform national standard for determining whether a majority of the judges in regular active service has voted in favor of rehearing en banc. Now, you might be scratching your head over how federal appellate courts could have more than one way of determining whether a majority vote exists in favor of en banc rehearing. As my column explained, "Federal appellate courts are currently divided over whether [the applicable federal statute, 28 U.S.C. sec. 46(c)] requires, for an appeal to be considered en banc, only that a majority of the non-recused active judges votes in favor, or must an absolute majority of all active judges (including any who are recused) vote in favor."
Posted at 19:54 by Howard Bashman



A round-up of some newly discovered law blogs: Denise Howell, whose fine blog played an important role in my decision to start "How Appealing," details here a whole bunch of newly discovered law blogs.
Posted at 19:40 by Howard Bashman



In Saturday's newspapers: Charles Lane, in today's edition of The Washington Post, writes about yesterday's Sixth Circuit ruling that allowed welfare benefits to be conditioned on passing drug tests. Adam Liptak also has a blurb on the ruling in today's edition of The New York Times. "How Appealing" posted news of this particular Sixth Circuit ruling at 10:02 a.m. eastern time yesterday. Also in today's NYTimes, Georgetown University Law Center Professor David Cole has an op-ed entitled "Fight Terrorism Fairly." The public might become more enthusiastic about that concept if only the terrorists would start fighting us fairly.
Posted at 10:56 by Howard Bashman



"U.S. Wants Guantanamo Ruling Upheld": The Associated Press has a news report that begins, "The Justice Department asked a federal appeals court Friday to uphold a ruling that suspected Taliban and al-Qaida fighters held in Cuba have no right to hearings in American courts." You can access the trial court's ruling in the government's favor at this link. When the USDOJ's appellate brief becomes available online, I will provide a link to it. The AP's article concludes by noting that the U.S. Court of Appeals for the D.C. Circuit is due to hear oral argument in the case on December 2, 2002.
Posted at 10:02 by Howard Bashman



More coverage of the Second Circuit's New York City police race-based precinct assignment ruling: John Rosenberg, over on his fine blog "Discriminations," offers these additional thoughts about the Second Circuit's ruling from earlier this week that affirmed a money judgment in favor of minority New York City police officers who claimed that they were transferred on account of their race into the 70th Police Precinct after the beating and torture of Abner Louima by police officers assigned to that precinct. (Plus, Rosenberg's blog post calls me "ever-vigilant, and increasingly indispensable" -- that's a very nice thing to say!)
Posted at 07:37 by Howard Bashman



Now available online at law.com: U.S. Supreme Court correspondent Tony Mauro has an interesting report on how some High Court law clerks are taking a more circuitous route to the big show. Mauro's article also mentions this post from Larry Lessig's blog, which I too mentioned the other day. Some in Philadelphia have spoken of attorney Alfred W. Putnam, Jr. as a possible Republican nominee to the U.S. Court of Appeals for the Third Circuit, but according to this report from Monday's edition of The Legal Intelligencer, Putnam has just filed an amicus brief in the Third Circuit in which he compares the ACLU to the Taliban. Hmm, that ought to make for a confirmation hearing that's simply too interesting. (Update: Sam Heldman offers his thoughts on this article and the amicus brief's Taliban reference.) Finally, Scott Graham of California's The Recorder offers more humorous commentary that, of course, includes the Ninth Circuit among his targets. And no, Graham doesn't compare the Ninth Circuit to the Taliban.
Posted at 00:42 by Howard Bashman



Friday, October 18, 2002
The Eleventh Circuit rules very strongly in favor of free speech in state judicial election campaigns: Few people believe more strongly than I do in the value of freedom of speech in state judicial elections, so I was very pleased to find this ruling that the U.S. Court of Appeals for the Eleventh Circuit issued today. The court explained, "We agree that the distinction between judicial elections and other types of elections has been greatly exaggerated, and we do not believe that the distinction, if there truly is one, justifies greater restrictions on speech during judicial campaigns than during other types of campaigns. We therefore adopt the actual malice standard * * * for regulations of [allegedly false or misleading] candidate speech during judicial campaigns."

The Eleventh Circuit also invalidated the Canon that prohibits candidates for judicial office from directly raising funds for election. The court's opinion explained:
Canon 7(B)(2) prohibits judicial candidates from personally soliciting campaign contributions and from personally soliciting publicly stated support, but allows the candidate's election committee to engage in these activities. In effect, candidates are completely chilled from speaking to potential contributors and endorsers about their potential contributions and endorsements.

The impartiality concerns, if any, are created by the State's decision to elect judges publicly. Campaigning for elected office necessarily entails raising campaign funds and seeking endorsements from prominent figures and groups in the community. See, e.g., White, 122 S. Ct. at 2542 (O'Connor, J., concurring) ("Unless the pool of judicial candidates is limited to those wealthy enough to independently fund their campaigns . . . the cost of campaigning requires judicial candidates to engage in fundraising.") The fact that judicial candidates require financial support and public endorsements to run successful campaigns does not suggest that they will be partial if they are elected. Furthermore, even if there is a risk that judges will be tempted to rule a particular way because of contributions or endorsements, this risk is not significantly reduced by allowing the candidate's agent to seek these contributions and endorsements on the candidate's behalf rather than the candidate seeking them himself. Successful candidates will feel beholden to the people who helped them get elected regardless of who did the soliciting of support. Canon 7(B)(2) thus fails strict scrutiny because it completely chills a candidate's speech on these topics while hardly advancing the state's interest in judicial impartiality at all.
I can hear the American Bar Association starting to whine about this decision already.
Posted at 23:55 by Howard Bashman



Readers of "How Appealing" answer the call on possible ways to break the federal judicial confirmation logjam: On Wednesday, I posted the following text to this blog:
A reader apparently frustrated with the recent actions and inactions of the Senate Judiciary Committee emails along the following inquiries:
(1) If a sitting federal District Court judge is recess appointed to a higher court (e.g. Dennis Shedd to the 4th Circuit, Charles Pickering to the 5th Circuit), does that judge lose his or her lifetime tenure as a District Court judge? Or would that judge, if not eventually confirmed to the higher court, simply return to his or her duties as a District Court judge? In other words, is there any downside to a District Court judge accepting a recess appointment to a higher court?

(2) Is there any mechanism by which the Senate's current practice of not holding a full floor vote on a judicial nominee who is not reported favorably out of the Senate Judiciary Committee can be challenged in court? I have been assuming that the interpretation and application of Senate rules would constitute a "political question," but I'm not sure that assumption is correct. Given that the U.S. Constitution gives the Senate, and not the Senate Judiciary Committee, the power to advise and consent to nominations, it seems like a plausible argument can be made that all nominees are entitled by the text of the Constitution to a full Senate vote. For example, could Priscilla Owen and/or Charles Pickering sue for a full Senate vote? Could the Bush Administration sue on their behalf?
I received many, many emails from readers in response to these two questions, and -- as promised -- I will now reprint here the best of those emails.

Answers to question (1): Question one asks if a sitting federal district judge were to receive a presidential recess appointment to a federal appellate court, but then the Senate were to fail to confirm the nominee to the appellate court before the end of the congressional session, would that individual be able to return to his or her post as a lifetime-appointed federal district judge. This turned out to be the more difficult of the two questions.

A reader who formerly was law clerk to a U.S. Supreme Court Justice, and who I suspect would know the right answer to this question if anyone would, emailed:
Here is one problem with a recess appointment for Shedd -- the common law doctrine barring the simultaneous holding of incompatible offices. The common law defined "incompatible offices" to preclude a situation where one office is subordinate to another. See Am. Jur. 2d Public Officers and Employees section 62. Under the common law rule, "the acceptance of the second position vacates the office of the first." Gonzalez de Brindle v. Reoyo, 686 F.Supp. 370, 372 (D.P.R. 1988). The question, of course, would be whether the common-law doctrine applies to federal judges in light of, inter alia, (1) a more specific prohibition in Art. I, section 6, clause 2 (albeit one founded on separation of powers, and therefore not applicable here), and (2) 5 U.S.C. 5533, which can be read implicitly to approve dual office-holding. But I would think that, if Shedd received a recess appointment and then returned to the district court, any defendant convicted by Shedd would challenge the conviction based on this.
A former law clerk to Ninth Circuit Judge Diarmuid F. O'Scannlain (sorry, but the House Judiciary Committee's Web site has removed its pronunciation guide to Judge O'Scannlain's name) was the first of two readers to suggest looking at the official biographical records at the Federal Judicial Center of district court judges who received recess appointments to a federal appellate court. He kindly pointed to former Second Circuit Judge Augustus N. Hand as one example. Judge A.N. Hand's official biography shows that his service on the district court "terminated * * * due to appointment to another judicial position" after President Calvin Coolidge gave Judge Hand a recess appointment to the Second Circuit but before President Coolidge nominated Judge Hand for a lifetime post on that appellate court. My own sleuthing through the official biographical records of all judges who served on the Second, Third, or Fourth Circuits who originally joined one of those appellate courts via a recess appointment, and who were federal district judges immediately before receiving the recess appointment, revealed the same type of result as Judge A.N. Hand's bio -- their service as federal district judges terminated upon accepting their recess appointment to a federal appellate court. See, for example, the bios of Second Circuit Judge Carroll Clark Hincks; Third Circuit Judges Joseph Buffington and Thomas Griffith Haight; and Fourth Circuit Judge Morris Ames Soper (none of whom are household names anymore, I know).

So, as best as anyone can tell, a federal district judge who receives a recess appointment to a federal appellate court, but whose nomination to that appellate court the Senate fails to approve, would not be able to return to service as a federal district judge after the recess appointment expired at the close of the congressional session. A separate problem, of course, is the concern that recess appointments to the federal judiciary are unconstitutional, a subject I addressed in depth in my monthly appellate column of March 2001 published in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers.

Answers to question (2): Question two asked whether there was some way to challenge in court the Senate's practice of allowing lower federal court nominations to die in the Senate Judiciary Committee, without allowing a vote of the entire Senate. The first response to this question came from Matthew J. Franck, Professor and Chairman, Department of Political Science, Radford University. He wrote:
it is virtually certain that the failure of the full Senate to hold a judicial confirmation vote would be ruled a political question by the Supreme Court, on the analogy of 1993's Nixon v. U.S., in which the Court held that the clause according the Senate the power to try impeachment cases did not bar the Senate from handing over the substance of the work to a committee, which considered evidence and testimony and presented a recommendation to the floor. True, in the present instance the Judiciary Committee is voting down nominees without even a negative recommendation to the floor, but the Court would surely hold (as in Nixon) that the manner in which the Senate organizes itself to conduct its constitutional business is a political question, not a judicial one.
The Nixon case to which Prof. Franck refers is, of course, the impeachment and conviction of former federal district judge Walter L. Nixon, Jr.

Someone who works on Capitol Hill offered these thoughts:
The first step in analyzing this question is how a full Senate vote on nominees might be achieved through a change in Senate rules. However, note the following: (1) Senate Rule 5 provides that "[t]he rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules," while the House of Representatives, on the other hand, adopts new rules every Congress by majority vote. See Rules of the House of Representatives, H.R. Doc. No. 103-342, at 768 (1995); and (2) a change in Senate rules requires a two-thirds, not a majority, vote. See Senate Committee on Rules & Administration, Standing Rules of the Senate, S. Doc. No. 102-25, at 15-16 (1992) (Rule 22 requires the votes of two-thirds of senators present and voting to change Senate rules). At least one argument against the constitutionality of the supermajority requirement of a change in Senate rules has been advanced by constitutional scholar Erwin Chemerinsky. See Erwin Chemerinsky and Catherine Fisk, "The Filibuster," 49 Stanford Law Review 181, 185 (1997) ("We conclude that ... the provision in Senate Rule XXII that requires a two-thirds vote to change the rule is unconstitutional. It impermissibly entrenches the views of today's Senate by dictating rules for future Congresses. Moreover, we conclude that a lawsuit challenging the rule could be justiciable."). In sum, a case might be justiciable if brought by a Senator who tried and failed to change Senate rules to require that the full Senate vote on presidential nominees because Senate rules require super-majorities to change current Senate rules. If successful, such a challenge could result in a ruling that only a majority vote is necessary to change Senate rules, and a rule requiring a full Senate vote on nominees might therefore be achievable. For similar reasons, the rule requiring 60 votes for cloture to end debate might also be found unconstitutional.

Essentially, as the argument goes, a supermajority requirement for a change in Senate rules may violate a fundamental constitutional principle that one legislature cannot bind subsequent legislatures, see U.S. Const., art. V, a principle that was expressed long ago by Blackstone, who wrote that "Acts of parliament derogatory from the power of subsequent parliaments bind not ... Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind the present parliament." 1 William Blackstone, Commentaries 90. The Supreme Court has often expressed this principle against legislative entrenchment. In Ohio Life Insurance and Trust Co. v. Debolt, 57 U.S. (16 How.) 416, 440 (1853), the Court held that one session of a legislature could not limit the ability of future sessions to impose taxes, stating that "[t]he powers of sovereignty confided by the legislative body of a state are undoubtedly a trust committed to them, to be executed to the best of their judgment for the public good; and no one Legislature can, by its own act, disarm their successors of any of the powers or rights of sovereignty confided by the people to the legislative body." Id. at 431. Similarly, in Newton v. Commissioners, 100 U.S. 548 (1879), the Court ruled that the Ohio legislature could move its state capitol, notwithstanding decisions by a legislature thirty year earlier as to its location. The Court declared that "[e]very succeeding Legislature possesses the same jurisdiction and power ... as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less. All occupy, in this respect, a footing of perfect equality. This must necessarily be so in the nature of things. It is vital to the public welfare that each one should be able at all times to do whatever the varying circumstances and present exigencies touching the subject involved may require. A different result is fraught with evil." Id. at 559.

And in other cases, the Court has stated that it is unconstitutional for a legislature to bind its successors. In Connecticut Mutual Life Ins. Co. v. Spratley, the Court said "each subsequent legislature has equal power to legislate upon the same subject. The legislature has power at any time to repeal or modify [an] act." 172 U.S. 602, 621 (1898). In Reichelderfer v. Quinn, the Court wrote that "the will of a particular Congress which does not impose itself upon those to follow in succeeding years." 287 U.S. 315, 318 (1932). In footnote four of United States v. Carolene Products Co., 304 U.S. 144 (1938), the Court also noted the possibility of applying a "more exacting judicial scrutiny" when evaluating legislation that "restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation." Id. at 152 n.4. Congressional rules which allow simple majorities of one session of Congress to bind majorities of future sessions could be viewed as precisely the sort of restriction the Court was concerned about.

Rule 5 preserves all Senate rules from one session to the next, Rule V, S. Doc. No. 17, 102d Cong. (1992), including Rule 22, which requires the votes of two-thirds of senators present and voting to change Senate rules. The Senate may therefore be violating the Supreme Court's declaration in Newton by depriving "succeeding legislature[s] ... [of] the same jurisdiction and power ... as its predecessors." 100 U.S. 548, 559 (1879). So, to repeat the argument, a case might be justiciable if brought by a Senator who tried and failed to change Senate rules to require that the full Senate vote on presidential nominees because Senate rules require super-majorities to change current Senate rules. If successful, such a challenge could result in a ruling that only a majority vote is necessary to change Senate rules, and a rule requiring a full Senate vote on nominees might therefore be achievable. For similar reasons, the rule requiring 60 votes for cloture to end debate might also be found unconstitutional.
This very well informed reader was essentially the only person who emailed to suggest that a judicial challenge might be possible, although two readers did send along links to the transcript of a recent Federalist Society debate on this subject in which Dean Douglas Kmiec of the Catholic University School of Law argued that a judicial challenge could conceivably succeed. The debate is fascinating, by the way, and you should be sure to read it. On the other side of the debate was a representative of People For the American Way, which is quite pleased with how the Senate Judiciary Committee has been operating in recent months.

A student at Yale Law School emailed:
It seems to me that there is a strong textual argument against your reader's suggestion that judicial nominees are entitled to a vote by the full Senate and could possibly sue to get one. Article I, Section 5 of the Constitution states in part that "[e]ach House may determine the rules of its proceedings". (Also, though probably less relevantly, Article I, Section 3 states in part that "The Senate shall choose their other officers" [other than the Vice President]; one might say that committee members, or at least committee chairman, are "officers" of the Senate.) If the Senate has chosen to determine rules of proceeding that require legislation and nominations to be approved by certain committees before they can be considered by the full Senate, that is within its rights under Article I, and not something the courts have any constitutional authority to interfere with.

Even beyond the fact that the legitimacy of Senate rules would seem to be, as your reader suggested in passing, a "political question", establishment of a committee system hardly strikes me as an objectively unreasonable procedural rule. The Senate might have trouble "keeping up with its work" if the full Senate had to spend time debating and voting on every nomination and every piece of legislation that anyone suggested, without any "screening" system. Even just giving full-Senate votes to any nomination or legislative proposal submitted by the President (who does have the power under Article II, Section 3, to "recommend to [Congress's] consideration such measures as he shall judge necessary and expedient"), a distinction which doesn't seem to have any basis in the text of the Constitution, is not so obviously workable that the Senate should be accused of acting wrongly in adopting a different procedural rule under its Art. I sec. 5 power. What if, for example, a President chose to hinder the operations of a Senate controlled by the opposing party by bombarding it with large quantities of suggested legislation that he knew it would eventually reject but that it would in every case have to subject to full-Senate debates and votes?
Jacob T. Levy, Assistant Professor of Political Science, University of Chicago, responded similarly:
The Constitution gives advise and consent power to the Senate as a whole, but it also makes the internal workings of the Senate unreviewable by other bodies:

Article 1, Section 5. "Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member."

If the Senate as a whole wishes to organize its business according to a committee structure, and not to take up matters that have not been favorably reported out of committees, that is the Senate's Constitutional business. And there's no affirmative requirement to take any votes at all in the Constitution.

The Senate couldn't delegate its power *to consent* to a committee -- that is, the Judiciary committee's *affirmative* vote couldn't suffice to confirm a nominee. But for the committee vote to trigger a procedural rule that prevents a vote from taking place on the floor -- well, that's simply rules of procedure. There are lots of things that may only be done with the consent of the Senate as a whole -- every law that is passed. But the Senate's under no constitutional obligation to consider each of them; its powers are permissive, not obligatory. On the theory suggested by your correspondent, it seems to me, the rules-of-procedure clause would be meaningless because the committee structure as a whole would have to be junked -- any item which required the Senate as a whole for affirmation or action, the Senate would somehow be required to consider as a whole, instead of allowing committees to screen many such out.
To conclude consideration of point two, nearly every single reader who responded expressed the opinion that judicial review of the Senate's failure to hold a floor vote on every single judicial nominee would not be available. The one Capitol Hill staffer who raised an intriguing and intricate possibility for challenging the status quo should be congratulated for his inventiveness, and it would be interesting to see such a challenge pursued.

Thanks again to everyone who took the time, and invested so much effort, in sending along these and many other responses to the two very interesting questions recently posed by a reader.
Posted at 22:18 by Howard Bashman



Is that a National Rifle Association sticker on your pick-up truck, or are you just glad to see me? In March of 1993, a police officer in Texas stopped a pick-up truck in which Jeffrey Estep was driving because the truck was going 47 mph in a 35 mph zone. Based in part on the fact that the pick-up truck displayed a National Rifle Association sticker, the police -- allegedly fearing for their safety -- conducted a search of the vehicle over Estep's objection and discovered that Estep was wrongfully carrying a pistol. A state court judge later ruled the search unconstitutional, and Estep filed a federal court suit under the federal civil rights act seeking damages from the police.

Today a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled that an NRA sticker in a vehicle window does not give police cause to fear for their safety. As the majority explained:
The presence of the NRA sticker in the vehicle should not have raised the inference that Estep was dangerous and that he might gain immediate control of a weapon. Regardless of whether there is some correlation between the display of an NRA sticker and gun possession, placing an NRA sticker in one's vehicle is certainly legal and constitutes expression which is protected by the First Amendment. A police officer's inference that danger is afoot because a citizen displays an NRA sticker in his vehicle presents disturbing First and Fourth Amendment implications. Although we do not definitively decide today whether the presence of an NRA sticker could ever contribute to a "reasonable suspicion" of danger calculus, we do find that [the police officer's] utilization of the NRA sticker in his "reasonable suspicion" of danger calculus was unwarranted when viewing the facts in the light most favorable to Estep.
Dissenting from the ruling, Chief Judge Carolyn Dineen King explained that she would have held that the officers were entitled to qualified immunity from liability. She concluded her dissent by stating that "I am dismayed by the probability that Estep has received a free pass in this case because his pickup truck sports an NRA sticker." You can access the Fifth Circuit's ruling at this link.

Update: The majority opinion also includes another sentence that's worthy of quotation: "Indeed, if the presence of an NRA sticker and camoflauge gear in a vehicle could be used by an officer to conclude he was in danger, half the pickups in the state of Texas would be subject to a vehicle search." Just one more reason why one shouldn't mess with Texas. (P.S. Readers who know the proper spelling of the word "camouflage" may notice that the majority opinion repeatedly misspells the word as "camoflauge." The dissent, however, spells the word correctly. Too funny!)
Posted at 17:21 by Howard Bashman



A report on the Eleventh Circuit's en banc oral arguments from earlier in the week: Jonathan Ringel of the Fulton County Daily Report has a very interesting article on what occurred at this week's Eleventh Circuit en banc oral arguments. In two cases presenting the same issue, two of the court's judges seemed to be debating each other over whether sheriffs in Georgia are agents of the State or of their respective Counties. If the correct answer is "State," the sheriffs are immune from suit under the federal civil rights act, but if the answer is "Counties," no immunity is available. Ringel's article, toward its conclusion, also reports on a very interesting dispute involving newsracks at Atlanta's Hartsfield International Airport. I previously provided much additional detail about the newsracks case in a post you can access here.
Posted at 16:09 by Howard Bashman



Endangered minnow to remain endangered a while longer: The Associated Press is today reporting that the U.S. Court of Appeals for the Tenth Circuit on Wednesday "suspended a judge's order to release water into the low-flowing Rio Grande to save an endangered minnow" and that today "U.S. Supreme Court Stephen Breyer refused to block the appeals court ruling."
Posted at 15:48 by Howard Bashman



Tonight on "How Appealing": I will feature the best reader responses to these questions from a reader about possible ways for ending the impasse on confirming various highly qualified federal appellate court nominees.
Posted at 14:23 by Howard Bashman



Dissenting judge accuses her Ninth Circuit colleagues of joining wrong side of circuit split: Today a partially divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed a district court's decision to grant a criminal defendant an eight-level downward departure from the sentence prescribed by the Sentencing Guidelines on the defendant's guilty plea to two counts of possession of child pornography. You can access the ruling at this link. In dissent from the panel's affirmance of the trial court's finding that a departure was appropriate based on the defendant's high susceptibility to abuse in prison, Circuit Judge Susan P. Graber explained:
By condoning the district court's consideration of the nature of the offense in deciding to depart downward, the majority distorts the nature of the Guidelines and joins the wrong side of a circuit split. The majority's message is that if society so roundly condemns a particular crime that even other criminals are especially appalled by it, the "average Joe" who perpetrates the crime should spend less than the average time in prison for that crime. I am unable to join in an opinion sending such a message. In my view, the district court erred.
The majority's opinion is also noteworthy insofar as it agrees that the characteristics of being "positive and caring" are "not good characteristics to have in prison."
Posted at 14:01 by Howard Bashman



Over Justice Souter's dead body: Vikram David Amar is on vacation this week, but his brother Akhil Reed Amar continues to grace us with his presence via a column today at FindLaw, calling on the U.S. Supreme Court to make itself more accessible to the press and public. As this Wired News article reported nearly two years ago, "Justice David Souter once said famously, 'I can tell you the day you see a camera come into our courtroom, it's going to roll over my dead body.'" There's no reason to believe that Justice Souter has since changed his mind on this point.
Posted at 11:55 by Howard Bashman



Another decidedly mixed review: University of Chicago Law School Professor Cass R. Sunstein reviews for The New Republic the new book about the U.S. Supreme Court by Kenneth W. Starr. You can access the decidedly mixed and very lengthy review at this link.
Posted at 11:38 by Howard Bashman



The latest news in the Alabama Judicial Building Ten Commandments case: You can access it here, via The Montgomery (Alabama) Advertiser.
Posted at 10:35 by Howard Bashman



Georgia fornication, from a British perspective: John Smith, author* of "The Lincoln Plawg," has a detailed look at the appeal pending before the Supreme Court of Georgia that seeks to invalidate that State's law prohibiting fornication. Plus, he provides a link to the Brief for Appellant -- great work!

----------------------------
*Hey, what's the deal with bloggers always being referred to as (or -- even worse -- calling themselves) "editor" of their blogs. Um, isn't "author" a bit closer to the truth?
Posted at 10:13 by Howard Bashman



Take this cup with you to the bathroom down the hall: The U.S. Court of Appeals for the Sixth Circuit has today reversed a trial court's preliminary injunction that prohibited the State of Michigan from requiring persons eligible for or receiving welfare assistance to undergo and pass drug urinalysis testing in order to remain eligible for benefits. As a result of today's ruling, Michigan will be allowed to conduct such testing while the plaintiffs' case that challenges the drug testing requirement heads toward a final decision on the merits in the trial court. You can access the Sixth Circuit's ruling at this link.
Posted at 10:02 by Howard Bashman



Justice Clarence Thomas today celebrates his eleven-year anniversary on the U.S. Supreme Court: And, according to this essay just posted at National Review Online, he still is receiving an unfairly hostile reception. But not here at "How Appealing," or at The Justice Clarence Thomas Appreciation Page.
Posted at 09:37 by Howard Bashman



Forget about the mouse -- free the transcript: GrepLaw points out that Aaron Swartz has posted online the U.S. Supreme Court's transcript of oral argument from Eldred v. Ashcroft. Hmm, is that kosher?
Posted at 01:05 by Howard Bashman



Thursday, October 17, 2002
Supreme Court of Florida upholds that State's sexually violent predator involuntary commitment law: The law allows for the continued detention of sexually violent predators after the expiration of their criminal sentence of imprisonment. You can access the Supreme Court of Florida's ruling at this link.
Posted at 22:33 by Howard Bashman



Now online via law.com: "9th Circuit to Peace Activist: Get a Real Job!" is the title of Jason Hoppin's report on the same Ninth Circuit ruling that I found worthy of mention earlier today. And Marcia Coyle reports that it's not only the Justices of the U.S. Supreme Court who feel underpaid for their work at the Court; appointed counsel for death row inmates say that they are underpaid too.
Posted at 22:11 by Howard Bashman



You're sentenced to the death penalty, you're retarded, case dismissed: The U.S. Court of Appeals for the Fifth Circuit issued an interesting decision today in a death penalty case the U.S. Supreme Court remanded for reconsideration in light of the High Court's ruling in Atkins v. Virginia that it is unconstitutional to execute the profoundly mentally retarded. As the Fifth Circuit explained in today's ruling:
What this divergence of views exhibits is the welter of uncertainty following Atkins, which declared that execution of mentally retarded persons is now an unconstitutional cruel and unusual punishment. The Supreme Court neither conclusively defined mental retardation nor provided guidance on how its ruling should be applied to prisoners already convicted of capital murder. Instead, the Court held,
Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, with regard to insanity, "we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences." 477 U.S. 399, 405, 416-17, 106 S.Ct. 2595, 91 L.Ed.2d 385 (1986).
Atkins, 122 S.Ct. at 2250. In these circumstances, inferior federal courts have no useful role to play until and unless following Atkins, a death sentence is reaffirmed or again imposed on Bell by the state courts. Just how the state courts will implement Atkins, we cannot say. Clearly, however, the state must be given the first opportunity to apply the Supreme Court's holding in order to insure consistency among state institutions and procedures and to adjust its prosecutorial strategy to the hitherto unforeseen new rule.
As a result, the Fifth Circuit ordered the trial court to dismiss the inmate's habeas corpus petition without prejudice so that the inmate could apply for relief in the first instance to the state courts of Texas.
Posted at 21:40 by Howard Bashman



If pigs could fly: If U.S. Supreme Court Justices decided cases based on their personal predilections rather than based on their understanding of the law, you'd probably find quite relevant this essay by Emily Bazelon that appeared on Slate this afternoon previewing the Court's consideration of Nevada Department of Human Resources v. Hibbs.
Posted at 21:35 by Howard Bashman



I wrote the law, and the law won: On the day after the U.S. Supreme Court oral argument in USA v. Bean, as we await Tom Goldstein's supposedly forthcoming first-hand account of how every other observer of the argument has got it all wrong (my unsolicited advice is keep your thoughts to yourself and then claim you were never in doubt in the event of a surprise victory), Slate comes forward with a posting in The Fray from a former congressional staffer who supposedly wrote the appropriation restriction in question. Hey, even he agrees with my view of the case. (This post's title based loosely on lyrics by The Bobby Fuller Four.)
Posted at 21:13 by Howard Bashman



Flipside, baby! Fans of strangely named appellate cases received one for the record books today, courtesy of the U.S. Court of Appeals for the Seventh Circuit. But first . . . a little background.

This Term, of course, the U.S. Supreme Court will hear oral arguments in Washington Legal Foundation v. Legal Foundation of Washington. I can't wait to tell you all about that case at some later date. Before WLF v. LFW arose, my undisputed favorite U.S. Supreme Court case name was Hoffman Estates v. Flipside, Hoffman Estates, a case the Court decided back in 1982. The other day some other blog (for the life of me I can't remember which one!) placed the Supreme Court's 1989 ruling in John Doe Agency v. John Doe Corp. into the running in this wacky name competition, but I find that caption less than compelling because -- get this -- those weren't the parties' real names.

Without further ado, the title of today's Seventh Circuit opinion takes the cake, burns down the house, and lets the dogs out -- Jinwoong, Inc. v. Jinwoong, Inc. The case was decided by an all-star Seventh Circuit panel consisting of Circuit Judges Richard A. Posner, Frank H. Easterbrook, and Terence T. Evans. As Judge Posner's opinion for the unanimous panel explains at its outset, "This appeal from a diversity damages suit between identically named parties (and no, it is not a suit for divorce) started off on a very bad foot * * *." For anyone who is curious, plaintiff-appellee Jinwoong, Inc. won the appeal, and defendant-appellant Jinwoong, Inc. lost. Both sides, however, are reportedly claiming victory.

Update: A reader emails to propose for consideration the Ninth Circuit's recent decision in USA v. SUA.
Posted at 20:51 by Howard Bashman



Cruel and unusual punishment, or an amazing weight loss regimen? In early August 2002, The New York Times ran a somewhat lighthearted article about "the loaf," an all-in-one bread-like food that is the only meal served to New York state prisoners held in solitary confinement. Well, "the loaf" may not be so funny after all. Today the U.S. Court of Appeals for the Second Circuit issued a decision that reinstated a prisoner's claim that being fed only "the loaf" for fourteen days constituted cruel and unusual punishment, causing him to lose thirty pounds, suffer severe abdominal pains, and experience severe emotional distress. Across the country in Hollywood, however, weight conscious citizens continue to clamor for "the loaf" at local supermarkets and health food stores.
Posted at 20:34 by Howard Bashman



Fourth Circuit today decides hospital pregnancy drug testing case on remand from U.S. Supreme Court: The U.S. Court of Appeals for the Fourth Circuit today issued its opinion on remand from the Supreme Court of the United States in Ferguson v. City of Charleston (you can access the Supreme Court's ruling from March 2001 at this link). By a vote of 2-1, today's panel ruled:
For the reasons set forth below, we hold that no rational jury could conclude, from the evidence presented at trial, that Appellants gave their informed consent to the taking and testing of their urine for evidence of criminal activity for law enforcement purposes. Our holding encompasses two determinations: first, that as to most of the Appellants, the record evidence does not support a finding that Appellants knew that their urine was being analyzed for evidence of criminal activity for law enforcement purposes; and second, that the record evidence does not support a finding that Appellants, for Fourth Amendment purposes, voluntarily submitted to the searches. Excluded from our holding is Ellen Knight, who, as explained below, suffered no Fourth Amendment violation. Additionally, we remand for further proceedings as to Darlene Nicholson, who may not have been searched pursuant to the Policy.
This represents a significant change from the Fourth Circuit's original ruling in the case, which the U.S. Supreme Court reversed. In that original ruling, the Fourth Circuit held that all the searches were reasonable as a matter of law.
Posted at 17:26 by Howard Bashman



Second Circuit affirms judgment in favor of New York City police officers in race-based job transfer case: The U.S. Court of Appeals for the Second Circuit today affirmed a money judgment in favor of minority New York City police officers who claimed that they were transferred on account of their race into the 70th Police Precinct after the beating and torture of Abner Louima by police officers assigned to that precinct. You can access the court's ruling at this link. (Ironically, this is another example of a federal appellate opinion written by a U.S. District Judge, sitting by designation, who serves on the same U.S. District Court as the judge whose decision was before the appellate court for review.)
Posted at 17:17 by Howard Bashman



Even more coverage of the Ten Commandments trial underway in Alabama: The Montgomery (Alabama) Advertiser is providing extensive coverage of the trial underway in federal court in Montgomery, Alabama concerning the constitutionality of a monument to the Ten Commandments located in the Alabama Judicial Building. You can access here today's coverage, and you can access here a round-up of prior coverage.
Posted at 15:05 by Howard Bashman



You don't tug on Superman's cape: To the maxim "Don't yell 'fire' in a crowded theater" can now be added "a cry of 'anthrax' in a packed night club might lead to people being trampled or crushed." That last passage comes directly from an opinion written by Circuit Judge Frank H. Easterbrook that the U.S. Court of Appeals for the Seventh Circuit issued today upholding the conviction of an anthrax hoaxer from Indiana. Let's just say the panel seemed to have very little sympathy for this defendant's shenanigans. (This post's title courtesy of the late Jim Croce.)
Posted at 13:45 by Howard Bashman



Peace activist turned ballot access free speech activist: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an interesting decision that begins:
We are asked to decide whether the City of Santa Monica's refusal to permit a candidate for the City Council to designate his occupation as "peace activist" on the city election ballot violates the candidate's rights of free speech and equal protection.Because the ballot regulation prohibiting "status" designations is politically neutral and the City offers alternative channels of communication, we hold that the regulation does not severely burden a candidate's First Amendment rights. The City's interest in preserving the simplicity of its ballot is an important one, and the regulation is not unreasonable.
You can access the entire ruling at this link.
Posted at 13:31 by Howard Bashman



And how! Salon reviews David E. Kelley's latest lawyer drama, "girls club," in an article entitled "We're, like, totally lawyers -- as if! David E. Kelley's ditsy new 'girls club' is a great step backward for the legal profession, women in the workplace, San Francisco and decent TV." You can access the review here.
Posted at 12:27 by Howard Bashman



Today's "Tom the Dancing Bug" cartoon on Salon features Justice Scalia and several other Justices: You can access it here. Yes, but is it funny?
Posted at 12:24 by Howard Bashman



"The GOP Admits Defeat" on Dennis W. Shedd's Fourth Circuit nomination: That's what Byron York's essay today reports at National Review Online. Hey, there's always next year. Or, as one emailer suggests, possibly later this year:
If Talent wins over Carnahan in Missouri, he takes office immediately, not on January 1, and suddenly the GOP is back in control of the Senate. If the remainder of the Senate races result in the Democrats having a majority on January 1, the GOP will have only a six-week window of opportunity. Pundits have suggested that in such a case, every one of Bush's currently pending nominations will sail through, and we'll start with a clean slate in January. Food for thought, eh?
I've seen this theory mentioned elsewhere, too, and the words "Democratic filibuster" always leapt to mind. Time will tell. Update: My colleague from down the hall suggests that I should add the words "and Lincoln Chafee" following "Democratic filibuster" in what had been the second to last sentence of this post. Consider it done.
Posted at 12:22 by Howard Bashman



The Ten Commandments, on trial in Alabama: The Associated Press offers this report, which prominently features testimony from the Chief Justice of the Supreme Court of Alabama. Maybe Alabama could avoid having its Ten Commandments monument removed if it also allowed a monument displaying the Seven Principles of the Summum religion (as the U.S. Court of Appeals for the Tenth Circuit seemed to think proper in a ruling from July 2002 that I first described here).
Posted at 11:39 by Howard Bashman



For those who need one more reason to avoid prison: As the U.S. Court of Appeals for the Sixth Circuit today explains:
In administrative segregation, prisoners are housed alone in cells with steel doors. Prisoners in segregation are locked in their cells for twenty-three hours each day, but are allowed to spend one hour in the prison yard, where the inmates are placed in cages to isolate them. Because prisoners in segregation are not allowed to congregate, the prisoners communicate with each other by yelling through cracks under the cell doors, passing notes through guards, or sliding notes between cells using paper and string.
You can access the ruling in which this description appears at this link.
Posted at 11:11 by Howard Bashman



This morning's must-read appellate opinion: Unlike the judges of the U.S. Court of Appeals for the Seventh Circuit, who are on record as opposed to having to hunt for buried treasures, reporter Adam Liptak of The New York Times has developed quite a knack for bringing to the Nation's attention interesting and important, yet obscure, developments in the law. Just yesterday (as I originally mentioned here), The NYTimes published an article by Liptak reporting on a ruling by The Court of Appeals of the State of Michigan holding that "a pregnant woman may use deadly force to protect her fetus even when she does not fear for her own life." I have now had the opportunity to read the state intermediate appellate court's opinion, which you can access here, and it qualifies as one of the most interesting, well-written, and closely reasoned appellate decisions that I have had the pleasure of reading in some time. It is very easy to understand and -- best of all -- is just six pages long. Be sure to read it.
Posted at 10:47 by Howard Bashman



Oregon's assisted suicide dispute, on NRO: Guest commentator Wesley J. Smith, in an essay posted this morning at National Review Online, argues that "the media's reporting about the lawsuit between the State of Oregon and United States Attorney General John Ashcroft (Oregon v. Ashcroft) * * * has generally been abysmal."
Posted at 10:06 by Howard Bashman



The LATimes covers yesterday's U.S. Supreme Court death penalty oral argument: David G. Savage has this report.
Posted at 07:40 by Howard Bashman



Today's FindLaw columnists: Today on FindLaw, columnist Edward Lazarus contends that this year's winners of the Nobel Prize for Economics may undermine the law and economics movement. And guest columnist Kevin R. Johnson writes about the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit.

Update: For a quite different take on the significance of this year's Nobel Prize for Economics awards, see this essay posted this morning at National Review Online.
Posted at 07:25 by Howard Bashman



In Thursday's newspapers: Both The New York Times and The Washington Post cover yesterday's U.S. Supreme Court death penalty oral argument: Linda Greenhouse here; and Charles Lane here. The NYTimes article also briefly touches on yesterday's other oral argument, in USA v. Bean, and with respect to that case Greenhouse writes, "From their questions and comments, most justices appeared to agree with the government's position."
Posted at 00:40 by Howard Bashman



Wednesday, October 16, 2002
Show me the money (or lack thereof): Seventh Circuit Judge Frank H. Easterbrook returned to regular form today with this quite interesting opinion in a golden parachute case in which a once highly-paid executive was suing his former employer for an additional $10 million on top of the $4.5 million in severance he had already received.

Far on the other side of the damages spectrum, the U.S. Court of Appeals for the Fifth Circuit today affirmed a $2 -- yes, that's right, two dollars -- damages award that a jury had returned in favor of a police officer who claimed that his municipal employer had acted improperly in secretly recording phone calls the officer made from his office at work. The appellate court took away the jury's $10,000 punitive damages award, returning the case for a new trial as to punitive damages. Let's hope for the officer's sake, and the sake of his lawyer, that the Fifth Circuit doesn't decide on the next appeal, if the officer wins punitive damages in the retrial, that the permissible limit of punitive to actual damages is a four-to-one ratio, which would cap the constitutionally allowable punitive damages at $8 -- yes, that's right, eight dollars.
Posted at 23:18 by Howard Bashman



Elsewhere tonight on law.com: Jonathan Ringel of the Fulton County Daily Report has an article covering yesterday's Supreme Court of Georgia oral arguments, which included one case that seeks to strike down Georgia's ban on fornication. The Legal Intelligencer contains an article reporting on today's Third Circuit ruling in an interesting religious land use case (see my earlier post here for more details). The Second Circuit may only seldomly rehear cases en banc, but today was one such day, according to this article. In other news from the Big Apple, this report says that a New York City-based federal district judge allowed a criminal defendant, who had pled guilty to receiving child pornography, to withdraw his plea because the plea colloquy did not eliminate the possibility that the images were lawful computer-generated porn masquerading as child porn, rather than actual child porn. The Texas Lawyer reports here on the sentencing today of Arthur Andersen. And a 34-year-old former law clerk to Third Circuit Judge Samuel A. Alito, Jr. is now a big deal in the U.S. Department of Justice, according to this report (free subscription required for this last item).
Posted at 23:04 by Howard Bashman



Tony Mauro reports on today's U.S. Supreme Court oral arguments: law.com's U.S. Supreme Court correspondent Tony Mauro has this coverage of today's two oral arguments before the Court. The report suggests that the arguments of Thomas Lamar Bean, respondent in USA v. Bean, will not amount to the hill of votes he would need to prevail (note: for purposes of this sentence a "hill of votes" equals five).
Posted at 21:36 by Howard Bashman



Republicans try to force Dennis W. Shedd's Fourth Circuit nomination to Senate floor, but Democrats block the maneuver: The Associated Press tonight offers this very interesting report. As the article explains:
Senate Minority Leader Trent Lott, R-Miss., called on the Senate to pull the nomination out of the committee and bring it directly to a vote on the floor. Shedd likely would pass a floor vote in the Senate, supporters said.

"I feel so strongly about the unfairness of the treatment of this nominee and the way it was reflected on Senator Thurmond that I have to take some action," Lott said.

But Senate Majority Leader Tom Daschle, D-S.D., blocked the maneuver, saying their practice has always been to require a committee vote before a full Senate vote. He also would not guarantee that Shedd would get a committee vote before the Senate session ended.
While on this subject, I have already received a slew of thought-provoking emails in response to these two questions from a reader inquiring about possible ways for the White House to respond to the current judicial confirmation morass. I will be posting on this blog the best responses to those questions this Friday night, so there's still sufficient time to respond.
Posted at 21:17 by Howard Bashman



The inimitable Dahlia Lithwick on today's U.S. Supreme Court oral arguments: Why is she the best at covering U.S. Supreme Court oral arguments, you ask. Here's why.
Posted at 19:18 by Howard Bashman



The UPI reports on today's oral argument in USA v. Bean: You can access the article here.
Posted at 17:39 by Howard Bashman



Set that amplifier to eleven: A divided three-judge panel of the U.S. Court of Appeals for the First Circuit today decided an appeal challenging noise restrictions that the City of Newport, Rhode Island imposed on the performance of live music at a nightclub located near a residential neighborhood. Each of the three judges on the panel wrote a separate opinion. One of the issues raised was the City's decision to ban the use of amplification. As U.S. District Judge Steven J. McAuliffe, sitting by designation from the District of New Hampshire, explained in his concurring opinion:
In the world of modern music, "amplified" is not synonymous with "made louder." Electronic musical instruments can only produce sound through a process of electronic amplification, but those instruments are not inherently louder than acoustic or unamplified instruments. A modern synthesizer, for example, can make sound only by means of electronic amplification, yet that amplified instrument easily and faithfully mimics the sounds produced by a wide range of acoustic instruments such as pianos, harps, flutes, acoustic guitars, violins, drums, etc. Moreover, the synthesizer can reproduce those musical sounds as softly and quietly as desired. Yet, the synthesizer falls within the City's ban. An electronically amplified Aeolian Harp can produce the same "soft floating witchery of sound" as nature's own, but the volume is more easily controlled on the amplified version.
As someone who clerked for a musically-inclined federal judge, I am very glad such judges exist. (This post's title is with apologies to "This is Spinal Tap.")
Posted at 17:25 by Howard Bashman



Oregon Court of Appeals upholds Kip Kinkel's 111-year sentence for crimes committed at the age of 15: The Court of Appeals of the State of Oregon today affirmed a trial court's judgment sentencing Kip Kinkel to serve more than 111 years in prison "arising from the murder of his parents and a subsequent shooting rampage at Thurston High School in Springfield in May 1998." In the rampage, Kinkel, who was 15 years old at the time, killed two students and wounded numerous others. You can access the appellate court's ruling at this link.
Posted at 16:55 by Howard Bashman



Now, Wisconsin-approved: The State of Wisconsin has a statute that provides, "The Supreme Court shall maintain a state law library for the use of the officers and the employes of this state, attorneys and the public." The Wisconsin State Law Library exists in fulfillment of that statutory obligation. I thank Wisconsin's official law library for so prominently featuring "How Appealing" on its Web page dedicated to "Law Reviews, Journals, Magazines."
Posted at 16:25 by Howard Bashman



The AP sums up today's U.S. Supreme Court death penalty oral argument: You can access the report here.
Posted at 15:42 by Howard Bashman



Third Circuit decides important religious land use case: The U.S. Court of Appeals for the Third Circuit today decided an important appeal arising under the Religious Land Use and Institutionalized Persons Act of 2000. Today's Third Circuit ruling vacates an injunction that the trial court had entered against a suburban Philadelphia municipality, in favor of a synagogue, and remands the case so that the trial court can conduct additional proceedings under the standards described in today's decision. You can learn more about the case that gives rise to today's decision at this link.
Posted at 14:59 by Howard Bashman



The AP reports on today's oral argument in USA v. Bean: Associated Press reporter Larry Margasak offers this account of today's U.S. Supreme Court oral argument. Other observers of this morning's oral argument have privately reported to me that the government's presentation seemed to get a much warmer reception from the court than did Bean's. Of course, the reactions of the justices at oral argument does not necessarily prove that my prediction will turn out to be accurate, but it doesn't hurt.
Posted at 14:44 by Howard Bashman



Any thoughts? A reader apparently frustrated with the recent actions and inactions of the Senate Judiciary Committee emails along the following inquiries:
(1) If a sitting federal District Court judge is recess appointed to a higher court (e.g. Dennis Shedd to the 4th Circuit, Charles Pickering to the 5th Circuit), does that judge lose his or her lifetime tenure as a District Court judge? Or would that judge, if not eventually confirmed to the higher court, simply return to his or her duties as a District Court judge? In other words, is there any downside to a District Court judge accepting a recess appointment to a higher court?

(2) Is there any mechanism by which the Senate's current practice of not holding a full floor vote on a judicial nominee who is not reported favorably out of the Senate Judiciary Committee can be challenged in court? I have been assuming that the interpretation and application of Senate rules would constitute a "political question," but I'm not sure that assumption is correct. Given that the U.S. Constitution gives the Senate, and not the Senate Judiciary Committee, the power to advise and consent to nominations, it seems like a plausible argument can be made that all nominees are entitled by the text of the Constitution to a full Senate vote. For example, could Priscilla Owen and/or Charles Pickering sue for a full Senate vote? Could the Bush Administration sue on their behalf?
Interesting questions. If anyone wishes to offer responses for possible publication on this blog, I can be reached here via email.
Posted at 12:46 by Howard Bashman



Update on LATimes/GM pick-up fuel tank fire settlement confidentiality dispute: Yesterday I posted here about an amended opinion that the Ninth Circuit issued yesterday in a dispute over whether The Los Angeles Times was entitled to access otherwise confidential information that General Motors provided in discovery concerning the settlements GM had paid in other pick-up truck fuel tank fire lawsuits. My one and only complaint was that the amended opinion did not contain the helpful explanation that the Ninth Circuit often provides of what changes had been made to the court's original opinion.

Providing further evidence that "How Appealing" has the most outstanding readers that any blog could ever hope for, today I received the following email from someone familiar with the case who is now clerking for a federal district judge based outside of the Ninth Circuit:
The change to the opinion is at the end of Section C where the court addresses whether a document filed under seal pursuant to protective order is subject to the common law presumption in favor of public access. Several courts have held that the presumption in favor of public access attaches only to documents filed in connection with dispositive motions (the theory being that the public needs access to the materials used by judges in reaching decisions on such motions) but not to documents filed in connection with discovery motions.

Originally, the court refused to comment on whether the presumption in favor of public access attaches to materials filed with discovery motions. Instead, the court held that the protective order analysis trumps the public access issue. Now, however, the court seems to suggest that the presumption in favor of public access does not attach to materials filed in connection with nondispositive motions. See Opinion at 14 ("Therefore, when a party attaches a sealed discovery document to a nondispositive motion, the usual presumption of the public's right of access is rebutted, so that the party seeking disclosure must present sufficiently compelling reasons why the sealed discovery document should be released.").

This is all very odd though. After the original opinion issued in May, the LA Times petitioned for rehearing en banc and various media groups filed briefs in support. Now, this amended opinion issues, with only the slight change, likely to the greater consternation of the Times.

Incidentally, love the blog. It's read every day here in chambers.
I thank this reader for sending along this impressive and insightful explanation.
Posted at 12:24 by Howard Bashman



What happened with Estrada and McConnell, The Tampa Tribune asks: Today's edition of The Tampa Tribune contains an editorial complaining about the status of confirmation proceedings involving two highly qualified federal appellate court nominees.
Posted at 12:00 by Howard Bashman



Now pending before Missouri's highest court -- the death penalty, set to music: Thanks to a reader for forwarding a link to this very interesting column published in today's edition of The St. Louis Post-Dispatch.
Posted at 11:56 by Howard Bashman



"Done-for-love-and-not-for-money": The blogosphere's leading light, InstaPundit's Glenn Harlan Reynolds, has a thought-provoking column online at Tech Central Station on the symbiotic relationship between big media and weblogs.

"How Appealing" is fortunate to have among its large readership many reporters and editorial writers who work for "big media," and I am especially pleased that so many of them take the time to alert me to the appearance online of things they have written that likely will be of interest to this blog's readers. Conversely, sometimes I have the pleasure of returning the favor to them, either publicly here or privately via email or the telephone. So, the term symbiotic does seem appropriate to describe what's occurring.
Posted at 10:37 by Howard Bashman



The AP profiles USA v. Bean: The Associated Press early this morning issued this report on today's U.S. Supreme Court oral argument in USA v. Bean, which is underway as I type this post. I recently discussed my thoughts about that case here.
Posted at 10:25 by Howard Bashman



In today's Los Angeles Times: An article entitled "Detainees Launch Legal Step," which begins:
WASHINGTON -- A dozen Kuwaiti captives have mounted the first organized legal and diplomatic effort by prisoners at the U.S. naval base at Guantanamo Bay to challenge U.S. policy that holds terrorism suspects indefinitely without court hearings or charges being filed against them.

The men, who say they are innocent, are largely backed by the government of Kuwait, a U.S. ally, in a case that gives voice for the first time to those captured in the war in Afghanistan and shipped to the makeshift prison in Cuba.
The LATimes also contains two letters to the editor on the subject of upcoming judicial elections in California.
Posted at 10:13 by Howard Bashman



Arthur Andersen to be sentenced today: Today's edition of The Washington Post has an article reporting that "the once-proud accounting giant" Arthur Andersen is to be sentenced today on its conviction on one count of obstructing justice. The entry of a judgment of sentence will allow Andersen to appeal its conviction to the U.S. Court of Appeals for the Fifth Circuit.
Posted at 10:12 by Howard Bashman



Fornication: Today's edition of The Atlanta Journal-Constitution contains a report on yesterday's oral argument before the Supreme Court of Georgia in a case challenging the constitutionality of a Georgia law that makes sex out of wedlock a crime.
Posted at 10:09 by Howard Bashman



The Christian Science Monitor previews today's U.S. Supreme Court death penalty oral argument: You can access the article here.
Posted at 07:05 by Howard Bashman



More judicial nomination-related news: On the issue of the Senate Judiciary Committee's failure to vote on the nomination of Dennis W. Shedd to serve on the U.S. Court of Appeals for the Fourth Circuit, The Greenville (South Carolina) News offers this editorial, and The Observer of Dunkirk, New York contains this editorial. Vice President Dick Cheney, campaigning in Oklahoma yesterday for Republican Congressional candidate Tom Cole, blasted the Senate Judiciary Committee's performance on judicial nominations, The Norman (Oklahoma) Transcript reports here.
Posted at 06:53 by Howard Bashman



Dorf on October 2002 Term, part two: Columbia Law School Professor Michael C. Dorf, in an essay published today at FindLaw, provides the second and final part of his October 2002 Term U.S. Supreme Court preview.
Posted at 06:39 by Howard Bashman



In Wednesday's newspapers: The New York Times contains an article entitled "Bush Places Senate's Delays on His Judicial Appointees at the Core of Campaigning." Reporter Adam Liptak has news of a Michigan intermediate appellate court's ruling which holds that "a pregnant woman may use deadly force to protect her fetus even when she does not fear for her own life." You can access the opinion that is the subject of Liptak's article at this link. U.S. Supreme Court correspondent Linda Greenhouse wraps up yesterday's developments at the Court. And Maureen Dowd has a column that I actually like -- at least until Josh Chafetz explains why I shouldn't -- about the hunt for the DC-area sniper.

The Washington Post contains a thoughtful if equivocal editorial on the Eldred v. Ashcroft case. And Charles Lane, the Post's Supreme Court correspondent, describes what's at issue in California Franchise Tax Board v. Hyatt, one of the two cases in which the Court granted cert. yesterday.
Posted at 00:20 by Howard Bashman



Tuesday, October 15, 2002
Someday I'm bound to get over it: Ever since I was the principal author of the briefs for appellant in this case in which the Third Circuit reached an infuriatingly wrong result, I've been fascinated by seemingly meritorious retroactivity challenges to new laws. Today a divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit decided a very interesting retroactivity challenge involving the deportability of an alien convicted at trial of armed robbery. The Fourth Circuit's ruling, which you can access here, also gave extensive consideration to the U.S. Supreme Court's very complex 5-4 ruling from June 2001 in INS v. St. Cyr.
Posted at 23:18 by Howard Bashman



Cutting legal fees is job two: It is ironic that on the day after a British publication runs an article entitled "[Law] Firms lose out as Ford slashes bills by a third," the U.S. Supreme Court dismissed cert. as improvidently granted in a case in which Ford Motor Company was a petitioner, and in which the petitioners were represented by two former Solicitors General of the United States, which surely costs big bucks. Ford's legal fees would have been slashed by much more than a third had its lawyers not petitioned for cert. in a case in which the granting of cert. would prove improvident, had its lawyers then not initially obtained cert., necessitating the filing of two briefs on the merits, and had its lawyers not prepared for and presented oral argument in the case to the Supreme Court. And to think, it was the pesky first footnote in an amicus brief filed by the current Solicitor General in support of Ford's position on the merits that caused the Court to recognize that cert. had been improvidently granted. With friends like that . . . . (Link to fee slashing article via Ernie the Attorney.)
Posted at 22:39 by Howard Bashman



Now online at law.com: Tony Mauro reports on some of today's developments at the U.S. Supreme Court, including one oral argument in which "The Court's inclination seemed so evident that lawyers for both sides used far less than their allotted times to argue before the justices." In other news, tomorrow's edition of The Legal Intelligencer will contain this article on today's Third Circuit ruling in the SEPTA police-applicant-qualification sex discrimination case, a ruling that I originally mentioned and linked to here.
Posted at 22:38 by Howard Bashman



Further proof that kids today have no patience: The Associated Press is reporting this evening that minority undergraduate students at the University of Michigan have joined in a request by non-minority applicants for admission that asks the U.S. Supreme Court to grant review before the U.S. Court of Appeals for the Sixth Circuit decides this challenge to that university's race-based undergraduate admissions preferences. You can access here my prior coverage of this case and here my prior coverage of a related law school admissions preference case that the Sixth Circuit decided back in May 2002.
Posted at 19:46 by Howard Bashman



A friendly reminder from the Seventh Circuit -- federal appellate judges are not pigs: Circuit Judge Frank H. Easterbrook, in an opinion issued today on behalf of a unanimous three-judge panel, recycled one of my favorite all-time Seventh Circuit statements:
"Judges are not like pigs, hunting for truffles buried in" the record. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).
Today's opinion also can be cited for the proposition that one-sided bests no-sided. According to the opinion, the losing party in the trial court -- defendant, the University of Wisconsin -- submitted an appellate brief whose statement of facts was egregiously one-sided, in violation of applicable rules requiring a recitation of the facts that is fair to both parties. The party that won at trial -- plaintiff, a phys-ed professor -- did the university one better by submitting an appellate brief that contained no factual statement whatsoever. The panel ruled that the plaintiff's failure to supply any factual narrative required the court to take the university's improperly one-sided narrative as true. So, although both parties violated the rules, the panel ruled that the plaintiff's total default was worse than the university's transgression. Or, maybe not. Later today the Seventh Circuit entered an order withdrawing the opinion and vacating the judgment. Which is all quite weird, just like Judge Easterbrook's use of the word "reverses" in the third line of page two of the since vacated and withdrawn opinion. (P.S. By weird, I don't mean that the use of the noun "reverses" was wrong; rather, in my view it probably would have been a bit less jarring to the reader had the author used "reversals" instead.)
Posted at 19:15 by Howard Bashman



The AP previews tomorrow's U.S. Supreme Court death penalty oral argument: Reporter Susan Parrott has this report from Dallas. As the article explains, "The U.S. Supreme Court will hear an appeal Wednesday from a black death row inmate who claims prosecutors deliberately kept blacks off his jury."
Posted at 17:28 by Howard Bashman



Thanks: Thanks to the Ashbrook Center's newly-launched blog "No Left Turns" for including "How Appealing" on its short list of favorite blogs.
Posted at 17:06 by Howard Bashman



Does the attorney-client privilege survive the client's death? The Supreme Court of North Carolina heard oral argument today in a case presenting this question, The AP reports here.
Posted at 15:38 by Howard Bashman



Lithuania to crown "Miss Captivity": The Associated Press provides this report.
Posted at 15:33 by Howard Bashman



Eighth Circuit considers validity of faxed search warrants: Declan McCullagh of c|net news.com has this report on a case that the U.S. Court of Appeals for the Eighth Circuit now has under advisement.
Posted at 15:30 by Howard Bashman



Do standards for becoming a Philadelphia transit police officer discriminate against women? A divided three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled today that SEPTA's standards for transit police candidates do not unlawfully discriminate against women, even though -- according to the dissenting opinion -- those standards disqualify ninety percent of all women. You can access the majority and dissenting opinions at this link. Interestingly, two female appellate judges joined in the opinion rejecting this claim of sex discrimination, while a male appellate judge dissented.
Posted at 14:46 by Howard Bashman



Ninth Circuit deals setback to The Los Angeles Times on access to confidential settlements in GM fuel tank fire lawsuits: A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled today that a Montana-based federal district court did not undertake the proper analysis in deciding to release to The Los Angeles Times otherwise confidential information that General Motors provided in discovery concerning the settlements it had paid in other pick-up truck fuel tank fire lawsuits. You can access the court's ruling at this link. Note: The opinion released today is styled as an "amended opinion," but it doesn't contain an order at its outset listing the changes made to the court's original ruling of May 13, 2002.
Posted at 13:44 by Howard Bashman



The AP summarizes today's cases in which cert. was granted: Gina Holland provides this report. And here's the official version of today's U.S. Supreme Court order list.
Posted at 13:24 by Howard Bashman



Lots of reasons: When Senior U.S. District Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York last month certified a non-opt out, mandatory "limited fund" punitive damages class action against cigarette manufacturers, he promised that an opinion would follow providing the reasons for class certification. Today Judge Weinstein's opinion has issued, and it weighs in at more than 200 pages. You can access it here.
Posted at 12:39 by Howard Bashman



More judicial nomination reportage: The Washington Post shines the spotlight on White House lawyer Brett Kavanaugh. The Kinston (North Carolina) Free Press contains an editorial that is critical of the Senate Judiciary Committee's handling of Dennis W. Shedd's nomination to serve on the Fourth Circuit, and so does the Augusta (Georgia) Chronicle (via The Atlanta Journal-Constitution). Today's edition of The State, a South Carolina-based newspaper, contains an op-ed entitled "Shedd deserves a hearing" that likewise criticizes the Judiciary Committee's failure to vote on the Shedd nomination. Finally, although just slightly off-topic, The State today also offers an article entitled "Gullah study could lead to cultural centers in S.C." How is that relevant to appellate law? This article from The Chicago Tribune provides the answer.
Posted at 12:09 by Howard Bashman



Byron York's latest column on pending federal appellate judicial nominees: Byron York, writing on National Review Online, has an essay today entitled "Is Leahy a Liar? Republicans say yes. Leahy doesn't deny it."
Posted at 11:46 by Howard Bashman



Ford Motor Co. v. McCauley -- cert. dismissed as improvidently granted: The Associated Press offers this report. Update: You can access the U.S. Supreme Court's per curiam order here.
Posted at 11:22 by Howard Bashman



Washington Post editorial blasts White House on newly-confirmed U.S. District Judge Ronald H. Clark: You can access the editorial here.
Posted at 10:47 by Howard Bashman



"Court Refuses Court-Martial Case": The AP has this report.
Posted at 10:39 by Howard Bashman



He said, Hsia said: "Court Refuses Gore Fund-Raiser Case," The AP is reporting, which means that the cert. petition filed by Maria Hsia has been denied.
Posted at 10:36 by Howard Bashman



U.S. Supreme Court order list: You can access this morning's U.S. Supreme Court order list at this link, via Cornell's Legal Information Institute. Cert. granted in only two cases, and the Solicitor General invited to express the views of the United States in another.
Posted at 10:30 by Howard Bashman



"High Court Passes Up Rebel Flag Case": The Associated Press offers this report.
Posted at 10:24 by Howard Bashman



Death penalty not too expensive after all: Remember back in mid-August when an Ohio-based state court trial judge refused to allow prosecutors to seek the death penalty against a criminal defendant because the county in which the prosecution was pending lacked sufficient funds to provide an adequate defense? (If not, you can access my prior coverage of that case here and here.) After the prosecution decided to appeal, the judge changed his mind and allowed the prosecution to seek the death penalty. Thanks to an Ohio-based reader for forwarding along news of the following development -- "On Monday a jury did decide to recommend the death penalty for Gregory McKnight for the murder of a 20 year-old Kenyon College student. This was the case where the trial judge had ruled that the prosecution could not charge the defendant with capital murder because the county (Vinton, Ohio's least populous) couldn't afford such a big trial. The judge later reconsidered that decision." The Ohio News Network offers this report.
Posted at 09:55 by Howard Bashman



Additional U.S. Supreme Court orders to issue this morning: After observing the Columbus Day holiday yesterday, the U.S. Supreme Court is back at work today and will issue orders at 10 a.m. eastern time this morning. Before noon, you should be able to access those orders via this link.
Posted at 09:34 by Howard Bashman



FindLaw columnist Julie Hilden criticizes Third Circuit's ruling that upholds INS's blanket closure of terror-related deportation proceedings: FindLaw columnist Julie Hilden believes that the U.S. Court of Appeals for the Third Circuit reached the wrong result when it recently upheld the INS's blanket closure of terror-related deportation proceedings. You can access here my prior coverage of the Third Circuit's ruling. While reasonable minds can disagree over whether the Third Circuit reached the correct result in this matter, I found Hilden's criticisms to be especially shallow. Take, for example, when she writes:
Indeed, unusually and disappointingly, Becker's decision not only quotes but actually relies upon a Washington Post OpEd on the issue by commentator Michael Kelly!

As Judge Becker comments, he and the other judge in the majority found Kelly's "statements powerful." That's a big compliment to Kelly, but a big faux pas by Judge Becker, in my view. Judges are not supposed to even silently be influenced by OpEds, let alone to note in their opinions how persuasive they are. As far as I know, Michael Kelly has not been nominated and confirmed to the federal bench, nor is he a lawyer for the parties.
Disclaimer: I also liked Michael Kelly's op-ed, as I explained here back on September 2, 2002.

In the category of poetic justice, at least under Hilden's approach the Third Circuit is duty-bound to ignore her views, too. Hilden's essay is the first part in a two-part series on this subject, which means that more grist for the mill should be forthcoming next week.

Update: The proverbial colleague from down the hall emails: "Would you please point out that the Federalist Papers are a collection of op-eds. Are the judicial opinions that quote from them shallow?"
Posted at 07:26 by Howard Bashman



In Tuesday's newspapers: Charles Lane, U.S. Supreme Court correspondent for The Washington Post, previews Wednesday's oral argument in USA v. Bean, a case that I have discussed in detail here. Elsewhere in the Post, you can access here an article entitled "Prosecutors Wield 1996 Law As Wedge Vs. Domestic Terror." The New York Times contains an article entitled "Stung by Courts, F.D.A. Rethinks Its Rules."
Posted at 00:04 by Howard Bashman



Monday, October 14, 2002
From today's edition of The Houston Chronicle: An article entitled "Felon's fight for firearms moves to Supreme Court." (Link to article via TalkLeft.) Today's Chronicle also provides this description of three cases from Texas now pending before the U.S. Supreme Court.
Posted at 23:52 by Howard Bashman



Now online at law.com: 1. Jonathan Ringel of the Fulton County Daily Report provides coverage of tomorrow's Supreme Court of Georgia oral argument in a teen sex case that could lead to the invalidation of that State's law prohibiting fornication (um, that's sex between unmarried people), which dates back to 1833. You can access my earlier coverage of that case here. 2. Jonathan Groner of the Legal Times continues his excellent coverage of the federal judicial confirmation process in an article entitled "Time Running Short for Circuit Judges." 3. Last but not least, Marcia Coyle has an article that begins:
The first terrorism-related suits to reach the U.S. Supreme Court seem likely to be challenges to closed deportation hearings.

If so, the justices will be writing on a nearly clean slate.

A ruling by a panel of the 3rd U.S. Circuit Court of Appeals has created a classic circuit split that invites Supreme Court review, one with the urgency of national security concerns. The court, led by Chief Judge Edward R. Becker, held that there is no First Amendment right of access to deportation hearings.
The proper resolution of this circuit split will be the subject of my monthly appellate column to be published in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, on the second Monday in November 2002. You can access links to these conflicting federal appellate rulings via my earlier coverage, here.
Posted at 21:24 by Howard Bashman



Even more coverage of last week's federal court ruling that struck down Alabama's sex toy ban: InstaPundit, correctly perceiving the public's insatiable appetite for coverage of legal disputes involving sex toys, offers some additional relevant links this evening. You can access here my initial coverage of last week's ruling, which includes a link to the court's decision and updates pointing to related entries on some other blogs.
Posted at 19:10 by Howard Bashman



Minnesota's highest court to review case challenging anonymity of columnist's sources: Yesterday's edition of the St. Paul Pioneer Press contained this report.
Posted at 16:26 by Howard Bashman



Model justice: Appellate courts may be closed throughout most of the United States today, but there's still a whole rest of the world out there, as this quite interesting report from The Associated Press makes clear.
Posted at 14:42 by Howard Bashman



n Innocent Temporary Regulatory Takings: Sasha Volokh's soon to be published Harvard Law Review case note critiquing the U.S. Supreme Court's ruling last Term in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency is now available online, and you can access it here.
Posted at 14:27 by Howard Bashman



Thanks, but no thanks: According to Reuters, Taiwan is less than enthusiastic about endorsing a twenty-year extension of copyright protection that the United States government has proposed in talks between the two nations on intellectual property rights. (Link to Reuters article via GrepLaw.)
Posted at 13:27 by Howard Bashman



The saga of newly-confirmed U.S. District Judge-to be Ron Clark: Here's more, courtesy of OpinionJournal.
Posted at 12:30 by Howard Bashman



Thanks, law.com! The Legal Intelligencer, law.com's Philadelphia affiliate, has this morning posted online the text of my monthly appellate column for October 2002. The column also appears in today's print edition of The Legal. I have previously noted how I've been unable to discern a pattern that would explain which of my monthly appellate columns The Legal chooses to post online. Maybe from this point forward the column will appear on The Legal's Web site every month. (I can always hope, right!)

This month's column summarizes the two cases now pending on rehearing en banc before the U.S. Court of Appeals for the Third Circuit. Both cases raise very interesting issues. Links to some additional resources follow:

Monopoly maintenance: To access the Third Circuit's since vacated panel opinion in the case of LePage's Inc. v. 3M, click here. To access the Third Circuit's order granting rehearing en banc in LePage's, click here. En banc oral argument in LePage's is scheduled to occur on Wednesday, October 30, 2002, and I plan to attend.

Effect of settlement with the named plaintiff, before that plaintiff moves for class certification, in a case filed as a class action: To access the Third Circuit's since vacated panel opinion in Colbert v. Dymacol, Inc., click here. To access the Third Circuit's very recent order granting rehearing en banc in Colbert, click here. You can access an article by The Legal Intelligencer's federal court correspondent, Shannon P. Duffy, on the grant of rehearing en banc in the Colbert case at this link.
Posted at 11:56 by Howard Bashman



Just did it: Nike is trumpeting the fact that today it has filed a petition for writ of certiorari seeking to expand the scope of commercial speech rights recognized under the First Amendment. Given that the U.S. Supreme Court is closed today, it is curious that Nike would feature today's date on its petition and make such a big deal about the filing's having occurred today. Time will tell if the U.S. Supreme Court dockets the case as filed today -- the federal holiday of Columbus Day -- but I doubt it will. The case will probably be treated as filed tomorrow, right Tom Goldstein? Oh, and by the way, friend of "How Appealing" Tony Mauro has an op-ed in today's edition of USAToday explaining why the Nike case is of great importance. (Links to cert. petition and press release via SCOTUSblog.)
Posted at 10:07 by Howard Bashman



In Monday's New York Times: Today's edition of The New York Times contains an article about Eldred v. Ashcroft, this one entitled "An Uphill Battle in Copyright Case." On the editorial page, the newspaper hopes that the Ninth Circuit will stand up against the Bush Administration's alleged retreat on clean air in California.
Posted at 06:50 by Howard Bashman



Sunday, October 13, 2002
Monday, October 14, 2002: Tomorrow is Columbus Day, a federal holiday in the United States. As a result of this somewhat controversial holiday, federal appellate courts (and probably most if not all state appellate courts) won't be issuing any rulings tomorrow. Also, the U.S. Postal Service won't be making regular mail deliveries. And, to add insult to injury, you won't be receiving tomorrow morning via email in PDF format the October 2002 installment of my monthly appellate column, which will appear in print in tomorrow's edition of The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, unless you sign up here for email delivery no later than 7 a.m. eastern time tomorrow morning. Otherwise, you'll have to wait until Wednesday, October 16, 2002, when a link to the text of that column will be posted here. Tomorrow's column summarizes the cases now pending on rehearing en banc before the U.S. Court of Appeals for the Third Circuit. My November 2002 column will address whether the Third Circuit or the Sixth Circuit supplied the right answer concerning whether the INS violated the First Amendment in ordering a blanket closure to the press and public of terrorism-related deportation proceedings. In the interim, you can access those courts' conflicting rulings via this link.
Posted at 22:26 by Howard Bashman



An update on the Kirk Kerkorian child support dispute: The latest installment of the very funny monthly column written by Associate Justice William W. Bedsworth of the California Court of Appeal, Fourth District, Division 3, in Santa Ana, California, is now available online. As usual, you don't want to miss it.
Posted at 18:09 by Howard Bashman



The government's latest filing in the habeas corpus case brought on behalf of alleged enemy combatant and "dirty bomber" Jose Padilla is now available online: And you can access it here, courtesy of FindLaw.
Posted at 13:35 by Howard Bashman



"Greedy Lawyers Cheat Real Asbestos Victims": Stuart Taylor Jr. had a legal affairs dispatch by that title earlier this month in the National Journal.
Posted at 12:43 by Howard Bashman



Meet Michael Mobbs: The issue of U.S. News and World Report due to hit newsstands tomorrow contains a profile of the government employee on whose word two Americans are being held as enemy combatants.
Posted at 11:01 by Howard Bashman



From the front line: Prof. Lawrence Lessig, over on his blog, reflects on his oral argument this past Wednesday in Eldred v. Ashcroft. (Via Ernie the Attorney.)
Posted at 02:26 by Howard Bashman



In Sunday's edition of The New York Times: Adam Liptak reports on a Florida appellate court's ruling last month "that clergy members may be excluded from juries because they tend to be too sympathetic to criminal defendants." Dana Canedy writes that a measure on the ballot in Florida this November seeks to amend that State's constitution to make its prohibition against "cruel or unusual" punishment identical to the stricter federal prohibition against "cruel and unusual" punishment. Jeffrey Rosen asserts in The Week in Review section that "in the wake of Sept. 11, circumstantial evidence is being widely used -- and misused -- across America." A letter to the editor defends the Third Circuit's recent ruling in the deportation secrecy case. Adam Liptak has a short blurb summarizing the Third Circuit's ruling in that very same case in The Week in Review section, and his blurb echoes my prediction that U.S. Supreme Court review is likely.
Posted at 01:09 by Howard Bashman



Is it proper to laugh about a logging protestor who dies in a fall from the redwood tree that he had sought to protect? Decide for yourself.
Posted at 01:03 by Howard Bashman



Cause for reversal - a judge who slept while presiding over a criminal trial: See this report from yesterday's edition of The Dallas Morning News.
Posted at 00:59 by Howard Bashman



Saturday, October 12, 2002
Poor Mr. Bean: I was originally hoping to write an essay for Slate that would address how both the executive and legislative branches of our federal government have engaged in duplicity on the question of gun rights, saying one thing but doing quite another. Unfortunately, first Dahlia Lithwick happened to write a piece in Slate addressing the first part of my argument, although her overall treatment of the issue differed substantially from what I had envisioned. (For example, if Attorney General John Ashcroft publicly endorses an understanding of the Second Amendment that Dahlia contends is contrary to court precedent but then fails to take action in court to obtain the overruling of that precedent, why should we fear the consequences were he similarly to speak out against other rights that she and many others hold dear. Moreover, even if this Republican administration were to launch a headlong assault on Roe v. Wade, prior Republican presidential administrations have repeatedly tried that too, all to no avail. Indeed, the present U.S. Supreme Court would, by my count, vote 6-3 against reversing Roe.) As an aside, let me say that no one with a law-related Web site has greater affection for Dahlia Lithwick than I do, with the possible exception of this gal. Oh, and the second reason why my Slate piece has fallen by the wayside is that I took ill last week (although I'm fully recovered now, thanks for asking), which entirely screwed up my plan to write the Slate piece sufficiently in advance of next week, when it was to appear.

So, the sad news is that I still have only one essay published in Slate so far. The good news, though, is that Slate gets to save the money it would have paid me, and you get to read my views on United States v. Bean (the legislative duplicity aspect of the gun rights issue) right here and right now.

First, some background. It is a federal crime for someone who is a convicted felon to possess a firearm. Congress, however, has provided a statutory method whereby a convicted felon may apply to the Secretary of the Treasury to have his or her firearm possession rights restored. In pertinent part, the gun rights restoration statute provides:
A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Secretary for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Secretary may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. Any person whose application for relief from disabilities is denied by the Secretary may file a petition with the United States district court for the district in which he resides for a judicial review of such denial. The court may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice.
18 U.S.C. 925(c). The Secretary of the Treasury has delegated to the Bureau of Alcohol, Tobacco and Firearms the responsibility to consider such applications from convicted felons.

Every year since 1992, Congress has prohibited ATF from spending any money to consider applications from convicted felons to have their firearm rights restored. In an opinion issued October 18, 1995, the U.S. Court of Appeals for the Third Circuit held that Congress's failure to appropriate funds to allow the ATF to consider firearm rights restoration petitions from convicted felons did not prohibit federal district courts from exercising review of such petitions on the assumption that the ATF's inaction could be treated as a denial. That decision was written by the Third Circuit judge for whom I clerked, although the decision issued both more than four years after my clerkship had ended and, sadly, ten days after the authoring judge had died. In the aftermath of that posthumous ruling, every other federal appellate court to have considered the issue has ruled that federal district courts have no authority to consider firearm rights restoration petitions from convicted felons. This caused the Third Circuit last year to grant rehearing en banc to reconsider its contrary decision from 1995, and earlier this year the en banc Third Circuit unanimously ruled that the 1995 decision had reached an incorrect result. The Third Circuit's en banc ruling explains persuasively why Mr. Bean is destined to lose in the U.S. Supreme Court, and by quite a convincing margin, perhaps 9-0. (Sorry, Tom Goldstein, Sam Heldman, and Mark A.R. Kleiman, but you'll all see soon enough.) Anyone who remains unconvinced is invited to consult the opening merits brief of the Solicitor General of the United States in United States v. Bean.

Speaking of which, the U.S. Court of Appeals for the Fifth Circuit managed to create an intra-circuit split when it held that Mr. Bean's case was so unusually compelling that he was entitled to relief from the firearm disability applicable to convicted felons notwithstanding directly controlling Fifth Circuit authority to the contrary from 1996. Bean's case is especially compelling; indeed, he may not even be a convicted felon at all. However, U.S. Supreme Court precedent is quite clear that Congress is allowed temporarily to rescind rights by refusing to appropriate funds necessary to the accomplishment of those rights. And that is what Congress has done since 1992 with the right of convicted felons to have their petitions, seeking permission to possess firearms, considered by the ATF.

Congress certainly is guilty of duplicity -- saying in a statute that convicted felons have the right to seek restoration of firearm rights, while passing an appropriations bar that temporarily eviscerates that right -- but applicable U.S. Supreme Court precedent doesn't prevent this duplicity. Regrettably, it is the judicial system that is left to enforce Congress's duplicity. Yet section 925(c) (quoted above) only gives federal district courts the right to review the Secretary of the Treasury's decision, and in the absence of a decision on the merits of an application, the most a court can do is hold that the Secretary of the Treasury did not abuse his discretion in refusing to pass on the merits of the convicted felon's application given Congress's appropriations bar. This is what the U.S. Supreme Court will hold. I may not like it, the Justices may not like it, Tom Goldstein and his client may not like it, and many other reasonable people may not like it, but that's the result the law quite clearly compels.

Convicted felons, it's never too early to start lobbying Congress to omit its ban on ATF appropriations to consider firearm rights restoration petitions from the next appropriations bill.

Update: Thanks to Tom Goldstein for pointing out that I had previously mis-cited the statutory provision at issue as Section 1925(c), rather than Section 925(c) (although I did originally link to the correct section). This typo, since fixed, in no way alters my conclusion or analysis. As for the charge that my conclusion resembles ipse dixit, I respectfully disagree. As my original post explains, the Third Circuit's recent en banc ruling in a case presenting the very same question provides a comprehensive explanation of why Mr. Bean shall lose in the U.S. Supreme Court. For me to try to improve on that explanation would be gilding the lily -- a task I will thus leave to the nine Justices to perform.

Second update: The government's reply brief on the merits addresses, in a manner that I find to be completely convincing, the points raised in Tom Goldstein's more recent post. Given that the judge for whom I clerked was the only federal appellate judge who has ever issued a reasoned decision in favor of the convicted felon's side of this dispute (sorry, but the Fifth Circuit's more recent ruling in Bean doesn't qualify as reasoned), I really wish that I could see merit in Tom's arguments. Thus, while I certainly wish Tom the best on Wednesday, my prediction stands.
Posted at 23:23 by Howard Bashman



Department of who the hell really cares: "How Appealing" has had more visits during the past seven days than during any other week in its history, a total of 13,688 page hits and counting. Not bad for a week during which I had the pleasure of experiencing outpatient surgery, which included general anesthesia. But don't worry folks, it was only an especially dreadful kidney stone, and now I'm back at full strength and as good as ever. The last time I had the pleasure of checking into a hospital was as an infant nearly thirty-eight years ago. I hope to go at least another thirty-eight years before requiring another hospitalization. Thanks so much to everyone -- family, friends, and co-workers -- who during the past two weeks has enthusiastically taken on added responsibilities enabling me to return to my former self so quickly. And thanks also to my docs and nurses -- you were great too.
Posted at 19:20 by Howard Bashman



Here and there: LawMuse provides another example of a very well done law student blog. Its author attends Notre Dame Law School, is taking a class from one of my favorite professors there, and, um, seems to be a little on the conservative side, not that there's anything wrong with that. Her description of Chief Justice Rehnquist's visit to one of her classes last month should not be missed. Elsewhere, gummi had the pleasure of reporting for jury duty this past week. One hopes that some of what she reports is, how shall I say, fictionalized.
Posted at 18:55 by Howard Bashman



On C-SPAN, one more U.S. Supreme Court preview: Tonight's installment of C-SPAN's fine program "America and the Courts" consists of another U.S. Supreme Court preview, this one featuring former Solicitors General Kenneth W. Starr and Walter E. Dellinger, III. The program airs tonight at 7 p.m. eastern time and can be viewed over the Web beginning next week via this link.
Posted at 14:08 by Howard Bashman



Decidedly mixed: Tomorrow's edition of The New York Times Book Review contains a decidedly mixed review by Dennis J. Hutchinson of Kenneth W. Starr's new book, "FIRST AMONG EQUALS: The Supreme Court in American Life."
Posted at 14:05 by Howard Bashman



"Men Behaving Badly": That's the title of the cover story of tomorrow's New York Times Magazine. The article contends that sexual harassment law is intellectually incoherent, and that nothing illustrates this better than strange new cases involving men victimizing men. Relatedly, you can access a recent opposite-sex hostile work environment ruling of the U.S. Court of Appeals for the Fourth Circuit via this link.
Posted at 09:55 by Howard Bashman



Friday, October 11, 2002
Now available on law.com: See the cases in which Tom Goldstein thinks cert. might be granted in the coming weeks. Hey, sometimes he's right! And Roger Clegg presses ahead with his fight against disparate impact claims alleged to violate the Fair Housing Act's ban on racial discrimination.
Posted at 23:52 by Howard Bashman



The Fifth Circuit has great news for defendants sued in state court class actions in Louisiana: Today the U.S. Court of Appeals for the Fifth Circuit issued a ruling that will make it easier than ever for defendants in state court class actions filed in Louisiana to remove those cases to federal court. To quote the court's own summary of its ruling:
In conclusion, we hold, on the authority of art. 595(A), that when, in connection with a Louisiana class action suit that asserts a cause or causes of action for which there is no separate attorney's fees provision under Louisiana law, attorney's fees are nevertheless (1) allowable to the class representatives, and (2) attributable to the class representatives for purposes of the court's calculation of the amount in controversy.
In other words, any class action filed in a Louisiana state court in which the lawyers for the plaintiffs are likely to perform more than $75,000 worth of work on the case can be removed to federal court by the defendant. And defendants generally find federal court a much more friendly place to be when confronted with a class action.
Posted at 23:43 by Howard Bashman



For fans of published opinions in which a federal appellate judge concurs only in the judgment without separate opinion: Here's another, issued today by the U.S. Court of Appeals for the Fifth Circuit. This time it's Circuit Judge Harold R. DeMoss, Jr. who is keeping his views to himself.
Posted at 23:31 by Howard Bashman



Department of raised eyebrows: When a three-judge panel of the U.S. Court of Appeals for the Third Circuit, consisting of two of the Third Circuit's more liberal judges and a senior judge, sitting by designation, who was a Democratic appointee to the Ninth Circuit, issues a decision reversing a criminal conviction, and it is the visiting Ninth Circuit judge who dissents.
Posted at 23:24 by Howard Bashman



Supreme Court of Arizona rejects First Amendment challenge to that State's "Clean Elections" fundraising law: The Associated Press is reporting that "The Arizona Supreme Court on Friday approved of collecting surcharges on criminal and traffic fines to help fund political campaigns, rejecting an argument that the system violates free-speech rights." You can access the court's unanimous ruling at this link. The Arizona Supreme Court's ruling reverses the ruling of Arizona's intermediate appellate court, which had found the law's fundraising provision to violate the First Amendment by compelling individuals to fund speech that they find objectionable. This case presents a quite fascinating question, and it will be interesting to see whether U.S. Supreme Court review is sought and obtained.
Posted at 18:55 by Howard Bashman



Vote here, vote there, vote everywhere: The U.S. Court of Appeals for the Second Circuit today rejected a claim alleging that the New York State Election Law violates the equal protection rights of citizens who have homes in multiple communities by denying them the right to vote in multiple local elections. You can access the ruling at this link.
Posted at 17:19 by Howard Bashman



Tom Jipping accepts the Daschle challenge: "'I defy anyone to come up with a better record' on judicial confirmations than the current Democrat-led Senate, said Majority Leader Tom Daschle (D-SD)." Thomas L. Jipping, in an essay published today on the WorldNetDaily Web site, takes the bait.
Posted at 17:03 by Howard Bashman



Alabama federal judge strikes down that State's sex toy ban: You can access the eighty-page ruling of U.S. District Judge C. Lynwood Smith, Jr., issued yesterday, at this link.

Update: Blogger Sam Heldman, whose law firm has its principal office in Alabama, offers some analysis of the ruling.

Second update: Noah Snyder, on the Deadly Mantis blog, writes:
I love living in a country where we write 80-page decisions on the consitutionality of sex toys, discussing for dozens of pages the social and legal history of sex toys. It's wonderful. Here's the decision. I think the best part I've found is: "In effect, doctors inherited the task of producing orgasms in women because it was a job nobody else wanted." -- p. 43
Posted at 15:02 by Howard Bashman



Prof. Volokh predicts the outcome of the Eldred v. Ashcroft case: Law Professor Eugene Volokh, over on his blog, reveals his prediction that the copyright term extension law at issue in the Eldred v. Ashcroft case will be struck down by the U.S. Supreme Court. He then explains why his prediction probably isn't worth the, um, pixels on which it appears.
Posted at 14:28 by Howard Bashman



Senator Leahy defends the actions of the Senate Judiciary Committee: In a press release dated yesterday that addresses a wide range of issues, Senate Judiciary Committee Chairman Patrick J. Leahy (D-VT) defends the committee's record during its time under Democratic control. The press release also addresses the controversy over the committee's failure to vote this week on Dennis W. Shedd's nomination to serve on the U.S. Court of Appeals for the Fourth Circuit. (Link to press release via Jurist.) Relatedly, Law Professor Jeff Cooper, over on his blog, had this to say about the Shedd brouhaha.
Posted at 13:55 by Howard Bashman



Today is day three of this blog's Larry Tribe-watch: Wow, could it really be day three already! Indeed. On Tuesday, this blog posed a question to U.S. Supreme Court advocate Laurence H. Tribe. The question stems from Tony Mauro's fine coverage of the Supreme Court's NextWave oral argument. No answer has yet been forthcoming from Prof. Tribe. (He's a busy guy, plus, when he opens his briefcase, quill pens go flying in every possible direction. That can cause added clean-up time when the moment arrives to pack-up and head home.) For those who have written to suggest that I should email Prof. Tribe directly with my question, I regrettably respond that for me to do so would violate the rules of this competition.
Posted at 10:47 by Howard Bashman



Elsewhere in Friday's newspapers: The Los Angeles Times reports that the Supreme Court of California is reaching out to educate students about the judicial system. According to the article, one student asked an intermediate appellate court justice "How many times have you been bribed?" And, in Friday's New York Times, Adam Liptak reports on a Georgia case that presents the question "Do religious institutions that are ordinarily free to discriminate in hiring on the basis of religion lose that freedom by accepting government money?"
Posted at 09:20 by Howard Bashman



Cow juice: Today's edition of The New York Times contains a blurb reporting that "The [Iowa] State Supreme Court has upheld a $700,000 award to a farm couple who said power lines decreased milk production in their cows." You can access Wednesday's ruling of the Supreme Court of Iowa at this link.
Posted at 09:05 by Howard Bashman



"Forgetting Anyone?" Today's edition of The Washington Post contains an editorial by that title in which the newspaper chides the Senate Judiciary Committee for failing this legislative session to approve the nominations of federal appellate court nominees Miguel A. Estrada and Michael W. McConnell.
Posted at 07:55 by Howard Bashman



Pro-Eldred, anti-Sonny: Friday's edition of The New York Times contains an editorial that sides with the little guy (Eldred, not Sonny) in Eldred v. Ashcroft.
Posted at 01:03 by Howard Bashman



Thursday, October 10, 2002
This sums up nicely the sentiments voiced in several reader emails: Jeffrey Collins, author of the joyfulchristian blog, had a post there yesterday that nicely captures the thoughts contained in several emails I have recently received from readers:
How Appealing was listed as recommended reading by the New York Bar Association. Strangely, as noted by Bashman himself the readers are cautioned to be aware of his biases. I find this strange because in my experience, How Appealing is one of the least biased blogs I've come across. In fact, after reading the blog for months, I'm still not sure where Bashman stands politically. I guess bias is in the eye of the reader.
Thanks to Jeffrey and others who have emailed voicing similar thoughts for having taken the time to comment.
Posted at 22:48 by Howard Bashman



Brand new online from law.com: Teen sex is among the issues the Supreme Court of Georgia will grapple with next Tuesday. Jonathan Ringel has this report, and I previously covered that case in a post you can access here. Tony Mauro -- still searching for the best time to mention "How Appealing" in one of his articles -- has a report on repeat performers at the U.S. Supreme Court's podium. And Douglas McCollam reviews for The American Lawyer Ken Starr's new book about the Supreme Court. Word on the street last week was that Starr was having a devil of a time trying to get copies of his book, which was out for reviews but not yet available in stores. Hey Warner Books, why don't you send your author a few extra copies right away!
Posted at 22:20 by Howard Bashman



Perhaps Joan Biskupic was right? The other day I poked fun at Joan Biskupic, U.S. Supreme Court correspondent for USA Today, for her article in which she confused the U.S. Court of Appeals for the Second Circuit with the U.S. Court of Appeals for the Third Circuit.

I'm just about to wrap-up my monthly appellate column to be published in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, on Monday, October 14, 2002. This month's column is my annual round-up of the cases currently pending on rehearing en banc before the Third Circuit. Last October's column reported on eight cases. This year, the Third Circuit has only two en banc cases pending, and in the more recent case rehearing en banc wasn't granted until one week ago today. As savvy federal appellate lawyers know, the Second Circuit has the reputation for being the federal appellate court that is most reluctant to grant rehearing en banc. Perhaps the Third Circuit's recent similar reluctance was the actual source of Joan's confusion? Well, probably not. By the way, if wish to receive my monthly appellate column via email each month in PDF format on the day of its publication in print (the second Monday of each month), you can sign up quite easily at this link.

Update: My November 2002 appellate column will address whether the Third Circuit or the Sixth Circuit reached the correct result concerning whether the INS violated the First Amendment in ordering a blanket closure to the press and public of terrorism-related deportation proceedings.
Posted at 18:39 by Howard Bashman



The American Bar Association discovers law blogs: Check out this article, dated tomorrow, from the ABA's Web site. And thanks to law blogger Eugene Volokh for his very kind words contained in the article.
Posted at 16:31 by Howard Bashman



A divided Fourth Circuit panel resolved a rather outlandish sexual harassment case today: You can access the court's ruling at this link. (I'd try to summarize the facts and holding, but as you'll see if you look at the case, it's difficult to decide where to begin.)
Posted at 16:20 by Howard Bashman



Additional judicial confirmation-related coverage: Thanks to a reader who emailed links to this report published today in Roll Call and to this column by Robert Novak of The Chicago Sun-Times. Additionally, today the House Judiciary Committee's Subcommittee on the Constitution held an oversight hearing on the judicial vacancy crisis. The witness statements, in particular, are not to be missed, especially the one in which Ralph G. Neas explains the strategy that he and many other Democrats are pursuing. (Link to the House subcommittee hearing via Jurist.)
Posted at 15:19 by Howard Bashman



Reason five why I'm not an avid skier: The Associated Press this afternoon is out with a news report stating that "A Colorado appeals court Thursday upheld the nation's first conviction of a skier for killing another person in a collision on the slopes." You can access today's ruling of the Colorado Court of Appeals at this link.
Posted at 14:34 by Howard Bashman



The judge is holding on line one: The U.S. Court of Appeals for the Sixth Circuit today affirmed federal criminal convictions obtained in a trial at which no federal district judge was present for the final phases of the trial. As the second to last paragraph of the opinion explains, "There was no structural error in this case. * * * An Article III judge was available and presided over the contested stages of trial via speakerphone. This is not the case of a judge who completely abdicated his judicial responsibilities * * *, but rather the case of a judge who presided telephonically at important stages of the trial." Earlier, the opinion explains:
After the jurors retired to deliberate, United States District Judge Paul Gadola, who presided over the trial in Flint, Michigan, departed the courthouse to attend the Sixth Circuit Judicial Conference in Cincinnati, Ohio. Because the trial was not completed before he was required to leave for the conference, Judge Gadola arranged for United States District Judge Bernard Friedman to handle jury questions that might arise during deliberations and to receive the verdict, via speakerphone, from Judge Friedman's Detroit chambers. Neither party objected to this arrangement.
My guess is that this set of facts doesn't arise too often.
Posted at 10:30 by Howard Bashman



"Predilections indeed": The impressive intelligence of this blog's readership never fails to leave me in awe. Overnight I received an email entitled "Predilections indeed" from a reader who was reacting to my post yesterday in which I thanked the General Practice Section of the New York State Bar Association for recommending "How Appealing" in the section's wEbrief dated October 9, 2002. The readers email states:
Top of the morning (night, actually). I am a first-year litigator at a Chicago firm and a former federal appellate clerk, and I start each morning with a look at How Appealing, continuing an enjoyable tradition that my friends and I started toward the end of our clerkships.

Just wanted to let you know that I reacted to the item about the NY State Bar Ass'n's comment about your blog's "bias, p.o.v., ideology" with an audible snort.

They really smoked you out. Since you support the confirmation of hyperbolically qualified federal judicial nominees, your membership in "Them" ("Us," actually) is patent. Of course that means that the Washington Post and Chicago Tribune are also members of Them. It's a roomy, yet shadowy conspiracy.

What is the deal with New York lawyers? As though the NY Times (especially in its coverage of Bush judicial nominees) isn't more permeated with "bias, p.o.v., ideology" than all but the most strident bloggers!

OK, I fear this post is veering into dittohead territory. I'll simply sign off with good wishes.

Your reader till the Sixth Circuit holds hands around the campfire,

M. (anonymous new lawyer)
Thanks, M., for taking the time to write.
Posted at 10:14 by Howard Bashman



Eldred v. Ashcroft, the day after: Reporters covering yesterday's oral argument in Eldred v. Ashcroft offer the following coverage in today's newspapers: Linda Greenhouse (New York Times) here; Charles Lane (Washington Post) here; David G. Savage (Los Angeles Times) here; Lyle Denniston (Boston Globe) here; Joan Biskupic (USA Today) here; Heather Fleming Phillips (San Jose Mercury News) here; and, last but not least, Declan McCullagh (c|net News.Com) here (and don't overlook Declan's photos, here).
Posted at 09:43 by Howard Bashman



Nebraska to review its method of determining who receives the death penalty: The Associated Press has this report. You can access my original coverage of the U.S. Supreme Court's ruling that has precipitated Nebraska's reevaluation at this link.
Posted at 09:35 by Howard Bashman



Today's judicial confirmation-related news: The State, a South Carolina-based newspaper, reports here that "U.S. Sen. Strom Thurmond continued his last fight in office Wednesday, taking the Senate floor to condemn the Judiciary Committee's inaction on Dennis Shedd's appeals court nomination. Then he carried the battle to the White House." Relatedly, The Washington Post contains this report.

Byron York, in an essay just posted at National Review Online, reports here that President Bush is preparing "for another fight over judges."

Today's edition of John Fund's Political Diary, available at OpinionJournal, asserts that "Bush needs a Trumanesque response to Daschle's obstructionism."

The day's most unusual judicial confirmation-related news comes from The New York Times. Today's edition contains an article that begins:
WASHINGTON, Oct. 9--The White House moved quickly tonight to quash a politically embarrassing problem with one of President Bush's nominees to a federal court seat.

Although the nominee, Ron Clark, was confirmed by the Senate earlier this month to be a federal district judge based in Texas, he was out campaigning today for re-election as a state representative from his district north of Dallas. Mr. Clark had said he might want to delay taking his seat on the bench to serve one more term in the State Legislature, where his vote might be crucial to Republicans winning the speakership.

Two Democratic senators, Charles E. Schumer of New York and Edward M. Kennedy of Massachusetts, complained about Mr. Clark's actions today, saying they were a blatant violation of judicial ethics, a view with which some legal scholars agreed. The senators wrote to Carolyn D. King, the chief judge of the United States Court of Appeals for the Fifth Circuit based in New Orleans, asking her to evaluate whether Mr. Clark had violated the judicial canons of ethics even before he had put on his robe.
This NYTimes article is well worth a look.
Posted at 09:08 by Howard Bashman



Today is day two of this blog's Larry Tribe-watch: Yesterday, this blog posed a question to U.S. Supreme Court advocate Laurence H. Tribe. The question stems from Tony Mauro's fine coverage of the Supreme Court's NextWave oral argument. No answer has yet been forthcoming from Prof. Tribe. Look forward to this new, daily feature of "How Appealing" until Prof. Tribe's answer arrives. (He's a busy guy, plus, when he opens his briefcase, quill pens go flying in every possible direction. That can cause added clean-up time when the moment arrives to pack-up and head home.)
Posted at 06:43 by Howard Bashman



Wow! Yesterday, "How Appealing" had the second largest number of page views (a total of 3,574) that this blog has ever received on a single day since its inception on May 6, 2002. (This blog's busiest day remains August 20, 2002, when it received 3,905 hits.) An unusual confluence of events explains yesterday's number. Many visitors came here via a link on NRO's The Corner to my coverage of the Senate Judiciary Committee's failure to vote up or down on Fourth Circuit nominee Dennis W. Shedd. Many other visitors were undoubtedly interested my coverage yesterday of the Eldred v. Ashcroft oral argument in the U.S. Supreme Court. And then, of course, there's the 2,300+ visits that this blog receives on a typical Wednesday, even when nothing special is occurring in the world of appellate litigation. Thanks to everyone who made yesterday the second busiest day in this blog's short history. "How Appealing" appreciates your interest.
Posted at 06:30 by Howard Bashman



Wednesday, October 09, 2002
Promptly means right away, First Circuit rules: Today the U.S. Court of Appeals for the First Circuit granted a writ of mandamus in favor of a defendant in a federal death penalty prosecution. The Court's opinion begins:
BOUDIN, Chief Judge. In this case, we are asked to construe language in 18 U.S.C. sec. 3005 (2000), providing that following the indictment of the defendant on a capital crime, the court "shall promptly, upon the defendant's request" assign two counsel "of whom at least 1 shall be learned in the law applicable to capital cases . . . ." We conclude that "promptly" means promptly after indictment, not (as the government asserts) only after the Attorney General has made a determination to seek the death penalty.
You can access the opinion here.
Posted at 22:45 by Howard Bashman



Read the USDOJ's letter refusing to turn over D.C. Circuit nominee Miguel A. Estrada's confidential memos written as a career lawyer in the Solicitor General's Office: You can access the letter, which I previewed here earlier today, at this link. It is well worth a look.
Posted at 22:38 by Howard Bashman



Tony Mauro's summary of today's Eldred v. Ashcroft oral argument is now available online: You can access it here, via law.com.
Posted at 21:43 by Howard Bashman



A. Beam disses Eldred: The real A. Beam (not this clever impostor) explains here why he'll be pleased if the U.S. Supreme Court upholds the lawfulness of the copyright extension statute at issue in Eldred v. Ashcroft. (Link via Lawrence Lessig blog.)
Posted at 21:23 by Howard Bashman



Warning, the blogger may have predilections: I thank the General Practice Section of the New York State Bar Association for recommending "How Appealing" in its wEbrief dated October 9, 2002. I must admit, though, that the recommendation made me laugh insofar as it states, "but you must be aware of the blogger's bias, p.o.v., ideology." Watch out, Empire State, I might be one of them.
Posted at 17:51 by Howard Bashman



Stranger than truth? If truth, as the saying goes, is stranger than fiction, then the facts of a Seventh Circuit decision issued today may qualify as stranger than truth. The first paragraph of the decision states:
MANION, Circuit Judge. Richard Shick, armed with a sawed-off shotgun, robbed a convenience store in Joliet, Illinois. At the time, he was employed as a case worker at the Illinois Department of Public Aid. After the robbery, he sued the Department, claiming that he was discriminated against because of his disabilities and his sex, and that the discrimination and treatment resulting from it caused him such trauma that he committed the robbery. A jury concluded that the Department did discriminate against him because of his disabilities and sex, and awarded him $5 million in damages and $166,700.00 in back pay. Because the Seventh Circuit ruled that the ADA was not a valid abrogation of the states’ Eleventh Amendment immunity, the district court vacated the disability judgment and then capped the judgment for sex discrimination at $300,000.00. The court then awarded $303,830.00 in front pay. The Department appeals. We reverse and remand.
You can access the opinion at this link. Circuit Judge Ilana Diamond Rovner issued a dissenting opinion, although even she observes, "Without a doubt, this appears to be a bizarre verdict and damage award."
Posted at 17:30 by Howard Bashman



Linda Greenhouse covers today's Eldred v. Ashcroft oral argument: The New York Times Web site offers this report.
Posted at 17:03 by Howard Bashman



Transcript of today's briefing by White House Press Secretary on judicial confirmation imbroglio is now online: You can access it here.
Posted at 16:21 by Howard Bashman



Another first-hand report on today's Eldred oral argument: A Yale alumnus who observed today's U.S. Supreme Court oral argument in Eldred v. Ashcroft sends along the following report:
I was lucky enough to have tickets to today's Eldred argument.

Probably an affirm. Ginsburg, Souter, and Rehnquist seemed to lean strongly in favor of constitutionality. Souter was especially tough on Lessig, and Ginsburg chimed in as well, being especially critical of the First Amendment argument. Rehnquist seemed skeptical not only of Lessig's argument, but also of the general notion that anything could be in the public domain ever. O'Connor, despite a comment that this was not what the framers would have wanted, also seemed likely to vote it was constitutional. Scalia and Stevens were the two strongest voices against constitutionality, though Scalia did not speak as much as Stevens so he is a harder call. Breyer was mildly against constitutionality, but definitely seemed concerned by the "chaos" (his word) that would result from a holding of unconstitutionality. Kennedy said little, Thomas said nothing.

Prof. Lessig did not distinguish himself. He "lead" with criticisms of the respondent's brief, rather than with his best points, and wasted his opening statement on a denial that he had a "general theory" of copyright. He answered one of Justice O'Connor questions, about whether Congress had extended the copyright term several times, by ignoring the question and instead making an argument that the first Copyright act was not an extension but an initial grant. She had to interrupt him to get him back on track. He also spoke a couple of doozies, like, "Speaking like a lawyer, which is to say, speaking accurately..." At one point Justice Stevens threw him a softball; all he had to do was agree, but he insisted that Stevens was wrong. Justice Breyer had to help Lessig out and tell him that he really wanted to argue that Stevens was right. It will probably be 9-0 on the First Amendment argument; that did not fare well at all.

Ted Olsen fared much better. One of the more bizarre moments was when Justice Breyer posed a lengthy question in which he purported to attach a dollar value to the benefits and costs of the 1998 copyright extension. Olsen's answer not-too-subtly suggested that Congress was better than Justice Breyer at coming up with dollar figures. Justice Scalia seemed to buy Lessig's argument that multiple extensions can effectively make a term unlimited.
I thank the source of this email for the report.
Posted at 15:16 by Howard Bashman



White House sharply criticizes Democrats on slow pace of judicial confirmations: The Associated Press offers this report.
Posted at 14:54 by Howard Bashman



Chuck Lane's report on today's Eldred argument: The Washington Post moments ago posted a report on this morning's oral argument in the Eldred v. Ashcroft case written by that newspaper's U.S. Supreme Court correspondent, Charles Lane. His report, which mentions "legal bloggers," could be understood to contain an oblique reference to "How Appealing" and, in particular, this earlier blog post.

Update: Don't know whether this falls under the category of "too funny" or "blatant press self-censorship," but Chuck's report has since been edited to remove mention of "legal bloggers" and replace it with mention of the headline from Variety that I referenced in this post here yesterday.
Posted at 14:39 by Howard Bashman



Divided Ninth Circuit panel upholds constitutionality of judicial bypass procedures contained in Arizona's parental consent abortion statute: You can access the Ninth Circuit's 2-1 ruling issued today at this link.
Posted at 13:31 by Howard Bashman



Would you like some piping hot water with that? As anticipated, The Associated Press is first out of the blocks today with a report on this morning's Eldred v. Ashcroft oral argument. Let the reading of tea leaves begin!

Update: A non-lawyer hoping to see the Eldred oral argument emails to say that although he arrived at the Court at 5:42 a.m. this morning, his place in line was behind sixty other people who had arrived even earlier. By 9:30 a.m., the line appeared to be 200 people long. Sadly for him, only the first fifty people in the general public line made it in to see the argument.
Posted at 11:55 by Howard Bashman



Just when you thought life couldn't get any better: The U.S. Supreme Court hears two days of oral arguments, and Dahlia Lithwick has a Supreme Court dispatch posted on Slate for each day. And I'm banking on three in a row given the significance of today's Eldred v. Ashcroft argument. You can access her take on yesterday's NextWave oral argument, during which the Justices pondered the fascinating question of whether the oyster is an animal, at this link. (Maybe if the Court granted cert. in a case that presented the question whether the oyster is an animal, the Justices could use the oral argument in that case to discuss the effect of bankruptcy on wireless phone spectrum licenses.)
Posted at 11:14 by Howard Bashman



A development in the confirmation battle over D.C. Circuit nominee Miguel A. Estrada: Yesterday the U.S. Department of Justice sent to Senator Patrick J. Leahy, chair of the Senate Judiciary Committee, a six-page letter reiterating the Justice Department's refusal to disclose "certain confidential and privileged appeal, certiorari, and amicus memoranda that Mr. Estrada authored when he was a career lawyer in the Office of the Solicitor General." The letter was signed by Daniel J. Bryant, Assistant Attorney General, in the DOJ's Office of Legislative Affairs. The letter was accompanied by twelve pages of attachments listing former SG employees who have been confirmed as federal appellate judges, former DOJ employees with no prior judicial experience who have been confirmed as federal appellate judges, and all former DOJ employees confirmed as federal appellate judges. Once this quite fascinating letter becomes available online, I will provide a link to it.
Posted at 10:51 by Howard Bashman



Divided Sixth Circuit panel affirms injunction prohibiting large display of Ten Commandments on the grounds of Kentucky's State Capitol: You can access the Sixth Circuit's ruling, issued today, at this link. The dissenting judge would have held that the case was not yet ripe for resolution.
Posted at 10:01 by Howard Bashman



Local coverage of yesterday's Senate Judiciary Committee fireworks involving the failure to vote on Fourth Circuit nominee Dennis W. Shedd: Today's edition of The State, a Knight Ridder newspaper based in Columbia, South Carolina, contains extensive coverage of yesterday's events. You can access the lead article here. You can access a sidebar entitled "Who is Leahy?" here; Dennis W. Shedd's bio here; a description of the Fourth Circuit here; the text of Senator Thurmond's statement here; and the tally on the failed vote to have the committee act on Shedd's nomination here.

Update: Byron York, at National Review Online, has this report on yesterday's events.
Posted at 09:17 by Howard Bashman



Today's FindLaw columns: Today on FindLaw, columnist Sherry F. Colb agrees with me that South Dakota's proposed constitutional amendment that would explicitly authorize jury nullification in criminal trials is a bad idea. And guest contributor Scott Martin, while claiming to be tattooless, maintains here that the Supreme Court of South Carolina erred in ruling that the First Amendment does not protect a right to give tattoos.
Posted at 08:57 by Howard Bashman



In Wednesday's newspapers: Readers of this Web log were the very first to learn of the Third Circuit's ruling yesterday that upheld the INS's blanket closure of terror-related deportation proceedings. Today that ruling is front page news in The New York Times (click here), The Washington Post (click here), and The Los Angeles Times (click here). Today's edition of the Washington Post also contains an editorial that criticizes the ruling.

Linda Greenhouse and Charles Lane both provide coverage today of yesterday's U.S. Supreme Court oral arguments in the NextWave case.

Finally, media darling and Law Professor Jonathan Turley appears to be caught up in a case of credential confusion, Lloyd Grove reports in today's Washington Post.
Posted at 08:36 by Howard Bashman



Tuesday, October 08, 2002
CSMonitor previews Eldred oral argument: Tomorrow's edition of The Christian Science Monitor contains this preview of tomorrow's oral argument in the Eldred v. Ashcroft case.
Posted at 22:58 by Howard Bashman



"Sticking Up for the 'Dirty Bomber'": The latest edition of The Village Voice contains an article by that title profiling the attorney for accused enemy combatant Jose Padilla.
Posted at 22:56 by Howard Bashman



Professor Tribe -- Why do regulators wear running shoes? Would it be an act of apostasy for me to say that I could care less about the NextWave case or any other burdensome dispute concerning the telecommunication industry? Well, let's just say that I'm pointing to Tony Mauro's coverage of today's oral argument in that case simply to get an answer from Professor Laurence H. Tribe to the question posed in the article's final paragraph:
Tribe said that the FCC in the case was trying to wear "two sets of shoes -- the regulator's running shoes and the wingtips of a creditor." The imagery appeared to dazzle -- or maybe confuse -- the justices, but Tribe left unexplained why regulators would wear running shoes.
Professor Tribe, you can email your answer to me at appellateblog -at- hotmail.com for publication on this Web log. Thousands of "How Appealing" readers, including some who check in daily from inside the U.S. Supreme Court building, are patiently awaiting your answer.
Posted at 22:43 by Howard Bashman



Eldred - shmeldred: With all the attention focused on tomorrow's Eldred v. Ashcroft oral argument, let's not forget that "a key arbitration case" is also being argued before the U.S. Supreme Court tomorrow starring Kenneth W. Starr (tattoo alert!). law.com has this report.
Posted at 22:32 by Howard Bashman



Chief Justice Rehnquist begs Congress to give the federal courts priority budget treatment: The Associated Press provides this report on the Chief Justice's unusual request, made public today. The official Web site of the federal court system provides this summary of the Chief Justice's concerns.
Posted at 18:02 by Howard Bashman



"In due course" has arrived for the Supreme Court of New Jersey: When the Supreme Court of New Jersey announced its ruling in the Torricelli ballot substitution case on October 2, 2002, the Court explained that its opinion would follow "in due course." Today that opinion has arrived, and you can access it here. Whether the court, in its opinion, has managed to rebut persuasively any of the plentiful criticisms received in the aftermath of its October 2 ruling remains to be seen.
Posted at 17:50 by Howard Bashman



Tony Mauro summarizes the events at the U.S. Supreme Court on the first Monday in October: You can access his report here, via law.com.
Posted at 16:27 by Howard Bashman



Fireworks at today's Senate Judiciary Committee mark-up regarding Fourth Circuit nominee Dennis W. Shedd's omission from the list of nominees to be considered: I received the following email from a reader this afternoon:
This is a report from John Nowacki from Free Congress on what happened today at the "let's not vote on Dennis Shedd after all" hearing today. What an amazing slap in Thurmond's face. It is absolutely outrageous. Anyone in the 4th Circuit (VA, NC, SC and WV) should be on the phones to the Dems (particularly Hollings and Edwards) and expressing their outrage. This was Thurmond's last markup as a US Senator. 48 years of service and this is the gold watch he gets from Leahy. Nice.

[Forwarded email from John A. Nowacki, Director of Legal Policy, The Free Congress Foundation, follows:]

Senate Judiciary Committee markup, 8 October 2002

Present:
Democrats: Leahy, Feingold, Cantwell, Kennedy, Schumer (left after a few minutes).

Republicans: Hatch, Brownback, Grassley, Sessions, Thurmond, Kyl, DeWine.

Schumer began by saying that only a handful of nominees with their paperwork completed have not been voted on. He then left for an intelligence briefing at the WH.

Leahy said that 17 district court nominees would be brought up by voice vote.

Thurmond then read a statement. He said he was informed around five yesterday evening that Shedd was removed from the agenda. To Leahy, he said:

I am deeply disappointed by your actions. You have repeatedly said that Judge Shedd would be given a vote today. I took you at your word. In my 48 years in the United States Senate, I have never been treated in such a manner . . . [since his hearing] Judge Shedd has answered all questions asked of him. On July 31, you said before this committee that we had worked out a solution regarding Judge Shedd that would be satisfactory to me. I do not find your recent actions to be satisfactory. Mr. Chairman, you assured me on numerous occasions that Judge Shedd would get a vote. That is all I have ever asked of you. I have waited patiently for over 17 months and have extended every courtesy due to you.

He asked that Shedd be reported favorably.

Hatch noted that committee rules mandate that if a matter is held over, it must be considered one week later or at the next committee meeting, whichever comes later. What is happening here is inherently unfair, and there's no doubt of his support and qualifications.

Leahy: I had to make a judgment when I heard there would be extended debate and our time to meet today was limited. We have those other nominees who would never get a vote. This was a decision I had to make, and I did not consult with outside groups. He said Hatch had removed nominees from the agenda as chairman.

Hatch: Not without consulting you. I was not consulted here.

Hatch moved that the committee proceed to an immediate vote.

Leahy asked to have the other votes first.

Hatch said this was a non-debatable motion and that the refusal to vote on Shedd is an abuse of committee rules and an attempt to ignore them.

Kennedy made some remarks about the rules and the effect of this motion on debate.

Leahy then ruled Hatch's motion out of order because "the matter is not before the committee."

Hatch referred to the rule and said that, according to that very rule, it is before the committee. We all know Shedd, he said. What's this committee devolving into?

Feingold submitted a statement and said that the criticisms are unfair. Republicans don't come to this with clean hands, and they seem to believe anything less than a rubber stamp is not good enough. They never accepted the result of the '96 election, especially when it came to the 4th and 5th Circuits.

The committee then voted on the district court nominees, en bloc. All were approved by voice vote. They were: Chesler, Collyer, Fuller, Hovland, Jordan, Kinkeade, Klausner, Kugler, Leighton, Linares, Ludlum, Martini, Phillips, Reade, William Smith, White, and Wolfson.

Kyl appealed the ruling of the chair regarding Hatch's motion. Leahy asked if he wanted a roll call vote, and Kyl said he'd settle for a voice vote, since it was clear Republicans would win. Leahy lightly said he'd rule the other way anyway, so a roll call vote was taken.

It broke down on party lines, though every Democrat except Leahy, Kennedy, Feingold, and Cantwell voted by proxy.

Leahy then tried to move on to various bills, but Kyl noted that there would be some discussion about them and the time Leahy indicated as the cutoff had arrived.
Thanks to the reader who sent along this report.

Update: For those who may question the reliability of my anonymous sources (they do pass a rigorous background test, let me assure you, and I regularly refuse to post those anonymous tips that are false, saving me countless instances of blog-related embarrassment), The Associated Press provides this report on today's events.
Posted at 15:59 by Howard Bashman



BREAKING NEWS -- Divided Third Circuit panel upholds the INS's blanket closure of terror-related deportation proceedings: You can access the Third Circuit's 2-1 ruling at this link.

In essence, the Third Circuit has ruled that there is no First Amendment right of access for the public or the press to attend "the extremely narrow class of deportation cases that are determined by the Attorney General to present significant national security concerns." Chief Judge Edward R. Becker wrote the majority opinion, in which Senior Circuit Judge Morton I. Greenberg joined. Circuit Judge Anthony J. Scirica dissented.

You can access my coverage of the Third Circuit's oral argument in this matter, in which I predicted today's result, at this link. Because the Third Circuit's ruling on this important question of national concern creates a split with an earlier ruling of the U.S. Court of Appeals for the Sixth Circuit, U.S. Supreme Court review of this issue is a near certainty.

Update: Later tonight, law.com posted online this report on today's ruling from Shannon P. Duffy, who covers the local federal courts for Philadelphia's The Legal Intelligencer.
Posted at 09:34 by Howard Bashman



A Supreme correction: Today The Washington Post corrects itself on a bit of U.S. Supreme Court-related history. Click here to access the correction.
Posted at 09:32 by Howard Bashman



Teaching you how to fish: The Jurist Web site seems to have embarked on a useful feature whereby each day that the U.S. Supreme Court is hearing oral argument, Jurist will provide a link to the briefs in cases argued that day through FindLaw and a link to a summary of the case being argued that day provided by Northwestern University's School of Journalism. Of course, if you would rather obtain this information before the day on which oral argument is occurring, you can do just that whenever it is most convenient for you by accessing this resource provided by FindLaw.
Posted at 09:21 by Howard Bashman



Second Circuit withdraws decision upholding most of Vermont's campaign finance reform law: The Associated Press reported late last night that the U.S. Court of Appeals for the Second Circuit has withdrawn its divided panel ruling that upheld most of Vermont's campaign finance law. The AP's short article doesn't mention whether the panel has granted rehearing or the full Second Circuit has granted rehearing en banc (although the latter is probably the more likely scenario, even though the Second Circuit tends to grant fewer en banc rehearings than any other federal appellate court). You can access here my original coverage of the Second Circuit's ruling, which includes links to the majority and dissenting opinions.
Posted at 09:09 by Howard Bashman



The Ninth Circuit was right, FindLaw columnist argues: FindLaw columnist Joanna Grossman today argues that a sharply divided en banc panel of the Ninth Circuit correctly ruled a few weeks back that a homosexual man objecting to unwelcome physical contact from male co-workers states an actionable Title VII claim. You can access both the ruling and my coverage of it, posted here on the day the decision issued, via this link.
Posted at 09:00 by Howard Bashman



"How Appealing" endorses that pun: After running several similarly punny intros to posts about Eldred v. Ashcroft (see here, for example), I'm glad to see Variety (via Reuters) weigh in with an article entitled "Its Sonny or Share for Supreme Court."
Posted at 08:50 by Howard Bashman



Dennis W. Shedd, where are you? The Senate Judiciary Committee had been scheduled this morning to vote on the nomination of Dennis W. Shedd to serve on the U.S. Court of Appeals for the Fourth Circuit. A look at the currently-available schedule for today's business meeting reveals that a vote on Shedd's nomination is now off of the agenda. What's up with that?
Posted at 08:46 by Howard Bashman



High profile cases, you're toast: Courtesy of Reuters, here's a useful summary of some of the high profile cases in which the U.S. Supreme Court denied review yesterday.
Posted at 08:37 by Howard Bashman



The Christian Science Monitor previews the 2002 Term: Reporter Warren Richey yesterday offered this preview of the U.S. Supreme Court's 2002 Term.
Posted at 08:30 by Howard Bashman



Linda Greenhouse covers the U.S. Supreme Court's opening day: You can access her report, from Tuesday's edition of The New York Times, at this link. Inexplicably (and, no doubt, to Linda's own dismay), her headline writers still don't appreciate the difference between the denial of U.S. Supreme Court review and an affirmance on the merits!
Posted at 01:13 by Howard Bashman



Dahlia Lithwick presents her first U.S. Supreme Court dispatch of the 2002 Term: You can access her dispatch here, via Slate. Surprisingly, she fails to mention the day's funniest non-news event, when Chief Justice William H. Rehnquist accidentally -- and mistakenly -- announced his own retirement (see this report from The Associated Press).
Posted at 00:59 by Howard Bashman



U.S. Supreme Court refuses to stay ballot swap in New Jersey's U.S. Senate race: Yesterday afternoon the U.S. Supreme Court issued an order refusing to stay the ruling of the Supreme Court of New Jersey that allows former Senator Frank Lautenberg to replace current Senator Robert G. Torricelli in the Democratic slot for U.S. Senate on New Jersey's general election ballot. Some press outlets and other blogs have incorrectly reported that the U.S. Supreme Court has denied review of the case. That is false. The U.S. Supreme Court has merely refused to issue a stay pending its disposition of the petition for writ of certiorari filed on behalf of the Republican candidate for office. Of course, by refusing to issue a stay, the U.S. Supreme Court has strongly indicated that it is likely to deny review of the case at a later date.
Posted at 00:48 by Howard Bashman



Goodbye SCOTUSblog, we hardly knew ya! One week ago today, U.S. Supreme Court practitioner Tom Goldstein launched SCOTUSblog. His second entry on that blog's first day stated:
Over the past few hours, there has been a reasonable amount of debate over whether there will be additional grants on [October] the 7th as well. The answer is almost certainly yes. (If we turn out to get this point wrong in only our second blog entry, we may call the whole endeavor off.)
More recently, on Friday, October 4, Tom's blog guaranteed more grants of certiorari on Monday, October 7, 2002 and estimated that six to twelve more cases would be accepted then. Of course, yesterday the U.S. Supreme Court failed to grant review in any additional cases. (See the Court's order list issued Monday, October 7, 2002.) Given that Tom is a man of his word, and given his statement that his blog likely would come to an end if his prediction of more grants proved inaccurate, the author of "How Appealing" can only remark, "Say it ain't so, Tom."
Posted at 00:36 by Howard Bashman



Sunday, October 06, 2002
Could a pattern be developing? On the day that the U.S. Supreme Court issued the final opinions of its 2001 Term (see my summary here), outside events (described here) prevented me from being near a computer for most of the day. Coincidentally, outside events will keep me away from blogging for most if not all of tomorrow, the first day of the Supreme Court's 2002 Term. Sometime before noon eastern time tomorrow, you should be able to access the Court's first Monday order list via this link.
Posted at 21:53 by Howard Bashman



Newsweek magazine previews the Eldred case: Yet another preview by reporter Steven Levy, and you can access it here. You can access Levy's earlier preview, which ran in Wired magazine, at this link.
Posted at 12:38 by Howard Bashman



"Oregon Supreme Court Strikes Property Law": So reports The Associated Press, in an article that begins: "The Oregon Supreme Court on Friday struck down a voter-passed law that would have required state and local governments to pay compensation to property owners when government regulations reduced their property values." You can access the Supreme Court of Oregon's ruling, which upheld the invalidation of the law on procedural grounds, at this link.
Posted at 09:26 by Howard Bashman



LATimes previews Eldred case: David G. Savage, U.S. Supreme Court correspondent for The Los Angeles Times, has this preview in today's newspaper of the oral argument scheduled for Wednesday, October 9, 2002 in Eldred v. Ashcroft.
Posted at 09:19 by Howard Bashman



Also in Sunday's newspapers: Law Professor Jeffrey Rosen has an op-ed in The New York Times previewing several cases on the U.S. Supreme Court's docket that may require the Court to draw the line between liberty and security. The NYTimes also contains a letter to the editor from Columbia Law School Professor Michael C. Dorf in support of Michael W. McConnell's nomination to serve on the U.S. Court of Appeals for the Tenth Circuit. And, The Washington Post prints two letters to the editor regarding Miguel A. Estrada's nomination to serve on the U.S. Court of Appeals for the D.C. Circuit.
Posted at 00:37 by Howard Bashman



Saturday, October 05, 2002
Chuck Lane's 2002 Term U.S. Supreme Court preview is now online: At this link, via The Washington Post.
Posted at 23:09 by Howard Bashman



"The Court: Same Time Next Year. And Next Year." Linda Greenhouse, U.S. Supreme Court correspondent for The New York Times, has an article by that title in Sunday's Week in Review section of The Times. The article discusses how the same nine Justices have served together for almost nine years.
Posted at 21:39 by Howard Bashman



The AP's 2002 Term preview: Anne Gearan, U.S. Supreme Court correspondent for The Associated Press, has this preview of the Court's 2002 Term. Her article is accompanied by a sidebar listing significant issues pending on the merits before the Court. And, I am reliably advised that Charles Lane, U.S. Supreme Court correspondent for The Washington Post, will have his 2002 Term preview in Sunday's newspaper, and thus it should be available on the Web just a short while from now.
Posted at 20:52 by Howard Bashman



Us versus them: Thanks to blogger Mark A.R. Kleiman, a professor of policy studies at UCLA, for his kind mentions of "How Appealing" yesterday and today. In yesterday's mention, Kleiman wrote:
[Thanks to Howard J. Bashman's How Appealing for the link. This site is a treasure, providing a running guide to the antics of the federal appeals courts -- the 10th Circuit just ruled that the automobile exception to the warrant requirement of the Fourth Amendment, justified by the fact that the auto might drive away before the warrant can issue, applies to a car that can't be driven -- plus coverage of the occasional confirmation fight. Warning to Democrats: I suspect Bashman of being one of them. He admires Posner and Glenn Reynolds.]
I plead guilty as charged -- I do admire both Posner and Reynolds. Or, as Sam Heldman wrote about me this afternoon, "Howard Bashman (no loony leftist, to be sure)." Guess that proves that I am one of them.
Posted at 20:45 by Howard Bashman



Congratulations to John Rosenberg and his daughter Jessie on their new Sekimori-designed site for their "Discriminations" blog, which can now be reached at www.discriminations.us. Be sure to reset your bookmarks. The new site looks great!
Posted at 17:06 by Howard Bashman



From tomorrow's edition of The New York Times Book Review: New York Times Washington correspondent Adam Clymer reviews "THE FORGOTTEN MEMOIR OF JOHN KNOX: A Year in the Life of a Supreme Court Clerk in FDR's Washington." (Coincidentally, yesterday FindLaw offered this review of the same book.) NYTimes law correspondent Adam Liptak reviews "LAW IN AMERICA: A Short History," by Lawrence M. Friedman. Finally, Mia Bay, who teaches history at Rutgers University, reviews "JIM CROW'S CHILDREN: The Broken Promise of the Brown Decision."
Posted at 13:01 by Howard Bashman



Tonight on C-SPAN's "America and the Courts" -- See Eugene Volokh on TV: Tonight, C-SPAN's fine program "America and the Courts" consists of a U.S. Supreme Court 2002 Term preview held at the William and Mary Law School on September 21, 2002. Participating in the program are Supreme Court practitioner Carter G. Phillips, Boston Globe Supreme Court correspondent Lyle Denniston, Law Professor Pamela Karlan, and -- hold onto your hats! -- Law Professor and blogger extraordinaire Eugene Volokh. Yes, you've read Eugene's words of wit and wisdom, you've heard him on NPR radio, and now you can see him in the flesh. Sorry, ladies, but word on the street is that Eugene is already engaged to be married. Tonight's program airs at 7 p.m. eastern time and can be viewed over the Internet via this link beginning early next week.
Posted at 11:13 by Howard Bashman



In Saturday's newspapers: Saturday's edition of The New York Times contains an article reporting that New Jersey's Republican candidate for U.S. Senate, in becoming a candidate for that office during the primary election campaign, took advantage of the same maneuver that he is now trying to stop the Democrats from employing. How ironic! Law Professors Akhil Reed Amar and Steven G. Calabresi have an op-ed entitled "The Supreme Court's Unfree Speech." Unfortunately, the byline to the op-ed sets forth the authors names as "By AKHIL REED AMARAND and STEVEN G. CALABRESI." That's one "and" too many by my count. Finally, the NYTimes has a report on the Third Circuit's Jeff Foxworthy T-shirt ruling from earlier in the week. You can access my coverage of that ruling here.

The Washington Post has this report on the status of the pending U.S. Supreme Court challenge to the Torricelli-Lautenberg ballot switch in New Jersey. The Post also contains this skeletal report on the federal government's appellate brief filed yesterday in the U.S. Court of Appeals for the Fourth Circuit in the case of alleged "enemy combatant" Yaser Esam Hamdi. You can access my coverage of the Fourth Circuit's ruling on the government's previous appeal at this link.
Posted at 09:58 by Howard Bashman



Friday, October 04, 2002
U.S. Supreme Court coverage now online via law.com: law.com now offers the following U.S. Supreme Court-related coverage. An article that you can access here, written by Tony Mauro, is entitled "Speculation Swirls About Rehnquist Retirement." Separately, Tony (with an assist from Tom Goldstein) provides a summary of the petitions for writ of certiorari that have the greatest chance of obtaining review at the Court's October 11, 2002 conference. Finally, Deidra Davidson of The Legal Times has this report entitled "N.J. Senate Case Tests Reach of 'Bush v. Gore.'"
Posted at 22:29 by Howard Bashman



Does the automobile exception to the Fourth Amendment's search warrant requirement apply to a warrantless search of a temporarily inoperable vehicle? The U.S. Court of Appeals for the Tenth Circuit today upheld the legality of a warrantless search of a temporarily inoperable vehicle in an opinion you can access here.
Posted at 22:18 by Howard Bashman



U.S. government files its opening brief in second appeal arising from "enemy combatant" case against Yaser Esam Hamdi: The Associated Press tonight offers this report on the federal government's second appeal to the U.S. Court of Appeals for the Fourth Circuit in the "enemy combatant" case against Yaser Esam Hamdi. You can access my coverage of the Fourth Circuit's ruling on the government's previous appeal at this link.
Posted at 20:40 by Howard Bashman



"Bush Nomination of Estrada for Judge Appears Dead": So says this report that Reuters issued this evening. The article's first paragraph states:
Senate Minority Leader Trent Lott conceded on Friday that President Bush's judicial nomination of Miguel Estrada, an Hispanic attorney seen by critics as too conservative, appears virtually dead.
The article goes on to note Senator Lott's belief that if Republicans recapture control of the Senate this fall, Miguel A. Estrada would swiftly be confirmed next year to serve on the U.S. Court of Appeals for the District of Columbia Circuit.
Posted at 19:54 by Howard Bashman



Bad news for marijuana users in the District of Columbia: The U.S. Court of Appeals for the District of Columbia Circuit, ending a lengthy hiatus during which no published opinions were forthcoming, today issued a ruling that begins:
Through a rider to the District of Columbia appropriations act, Congress denied the District authority to "enact ... any law" reducing penalties associated with possession, use, or distribution of marijuana. The district court declared the rider unconstitutional, finding that it interfered with D.C. citizens' First Amendment rights to use the city's ballot initiative process to enact medical marijuana legislation. Because Article I of the Constitution gives Congress "exclusive" power to define the District of Columbia's legislative authority, and because the legislative act--in contrast to urging or opposing the enactment of legislation--implicates no First Amendment concerns, we reverse.
You can access this very interesting ruling at this link.
Posted at 15:43 by Howard Bashman



Attention Joan Biskupic: A friend of mine who reads USAToday even when he's not holed up in a hotel room on the road emails to draw my attention to Joan Biskupic's article on the Torricelli/Lautenberg case from today's edition of that newspaper. Now I've enjoyed Joan's coverage of the U.S. Supreme Court for many years, dating back to when she was covering the Court for The Washington Post. The sixth paragraph of her article today begins:
The request to block the New Jersey Supreme Court action was made to Justice David Souter, who handles emergency requests from the 2nd Circuit, which includes New Jersey.
That sentence contains two major errors. First, New Jersey is located within the jurisdiction of the U.S. Court of Appeals for the Third Circuit. Second, Justice Ruth Bader Ginsburg handles emergency requests from the Second Circuit. In Joan's defense, however, Justice Souter does handle emergency requests arising from the Third Circuit.
Posted at 15:36 by Howard Bashman



The Democrats have filed their U.S. Supreme Court papers opposing a stay in the Torricelli/Lautenberg case: Gina Holland of The Associated Press has this report.

Update: Courtesy of FindLaw, you can now access online here the Democrats' filing in opposition.
Posted at 13:24 by Howard Bashman



National Review Online's coverage of the New Jersey Supreme Court's decision in the Torricelli case: National Review Online has two interesting essays this morning (see here and here) on the Supreme Court of New Jersey's recent ruling in the Torricelli ballot substitution case. For discussion of how New Jersey voters are reacting, the Web site PoliticsNJ.com provides some interesting coverage. And the Web site PoliticsPA.com asks here whether the developments in New Jersey might lead Republicans in Pennsylvania to try to switch from one gubernatorial candidate to another.
Posted at 10:16 by Howard Bashman



Former University of Michigan President Lee C. Bollinger expects U.S. Supreme Court to grant review of Grutter case: The New York Times has this report. To access my prior coverage of Grutter v. Bollinger -- a 5-4 en banc ruling of the U.S. Court of Appeals for the Sixth Circuit in which that court upheld the University of Michigan Law School's system of race-based admission preferences -- click here.
Posted at 09:18 by Howard Bashman



A round-up of yesterday's noteworthy federal appellate decisions: 1. Does a Jeff Foxworthy "you might be a redneck if . . ." T-shirt run afoul of a public school's speech code, and if so does the First Amendment allow the speech code to be enforced? A divided three-judge panel of the U.S. Court of Appeals for the Third Circuit issued this decision in that controversy yesterday. Reporter Shannon P. Duffy of The Legal Intelligencer has this report on the ruling.

2. Separately yesterday, the Third Circuit granted rehearing en banc to enable the full court to consider a recent three-judge panel's decision addressing whether a proposed class action suit becomes moot if the defendant offers to give the named plaintiff all relief sought by the named plaintiff before the court considers whether to certify the class. Shannon P. Duffy also has an article about the granting of rehearing in this case.

3. A divided three-judge panel of the U.S. Court of Appeals for the Eighth Circuit split over whether the interrogation by police of a criminal suspect was so overbearing as to violate the defendant's right to counsel under Miranda v. Arizona. The majority upheld the trial court's suppression of the defendant's confession, over the dissent of Chief Judge David R. Hansen. You can access the ruling here.

4. Ninth Circuit Judge Alex Kozinski invokes the doctrine of "too clever by half" in his concurring opinion in this case. Cited as authority for the doctrine are decisions by First Circuit Judge Bruce M. Selya and Seventh Circuit Judge Frank H. Easterbrook, so it must be some doctrine!

5. Finally, a three-judge Ninth Circuit panel ruled yesterday, in an opinion by Circuit Judge Stephen Reinhardt, that a federal trial court erred in dismissing a suit "contend[ing] that an Arizona statute permitting tax credits for contributions that support parochial schools violates the Establishment Clause." In essence, the panel concluded that federal statutes and U.S. Supreme Court rulings that prevent federal trial courts from hearing various challenges to state taxes do not prohibit the exercise of jurisdiction over this suit. Coincidentally, Law Professor Paul Bender (whose name arose during Miguel A. Estrada's Senate Judiciary Committee hearing) served as counsel for the prevailing party in this appeal.
Posted at 08:23 by Howard Bashman



The Blithering Idiot on who's the smartest Justice: William Sulik, author of the Blithering Idiot blog, has this take on Stuart Buck's recent essay published at Tech Central Station.
Posted at 08:21 by Howard Bashman



Scheidler v. National Organization for Women: The case of Scheidler v. National Organization for Women, which is now pending on the merits before the U.S. Supreme Court and presents the question of the penalties that can lawfully be imposed against anti-abortion protestors under certain federal laws, is the cover story of the October 5, 2002 issue of World Magazine, which seems to be a conservative Christian publication. The publication also provides this timeline of the case. (Link to magazine article via ben domenech online, with an email assist from the author of the Blithering Idiot blog.)
Posted at 08:03 by Howard Bashman



Coverage of the U.S. Supreme Court case in the Torricelli/Lautenberg matter: The New York Times, in today's edition, has this report from Linda Greenhouse. The Washington Post has this report from someone on byline strike (Charles Lane, perhaps?). The Los Angeles Times offers this coverage from David G. Savage. Lyle Denniston of The Boston Globe (to whom I sincerely apologize for being too busy to return his call yesterday, but hopefully this mention will make up for it) has this report.
Posted at 07:53 by Howard Bashman



Rules for Borking: Slate's founding editor, Michael Kinsley, has an essay published there yesterday evening entitled "Borking: A Rule Book."
Posted at 02:17 by Howard Bashman



Thursday, October 03, 2002
The New Jersey Republicans' request for a stay is now online: You can access the request for a stay, filed today in the U.S. Supreme Court, at this link courtesy of FindLaw.

Update: Here's an article by Associated Press reporter Gina Holland entitled "Politics at High Court's Door Again." While that title could apply to many a dispute that has come before the U.S. Supreme Court, this article compares the Torricelli case to Bush v. Gore.
Posted at 17:34 by Howard Bashman



We will soon know whether the importance of the document delivery person helps one achieve U.S. Supreme Court intervention: Anne Gearan of The Associated Press reports here that "Sen. William Frist, chairman of the Senate GOP campaign committee, delivered * * * by hand" the Republicans' request for U.S. Supreme Court review of the New Jersey Supreme Court's ruling that allows Sen. Senator Robert G. Torricelli to be replaced on New Jersey's general election ballot by former New Jersey Senator Frank Lautenberg. Gearan's report fails to note whether anyone working in the U.S. Supreme Court Clerk's Office recognized Senator Frist before he engaged the staff there in a game of "Bet you don't know who I am?"

The Web is chock-full of commentary on the New Jersey Supreme Court's ruling from yesterday evening. Columnist William Safire has an interesting op-ed in today's edition of The New York Times. At National Review Online, guest commentator Robert P. George accuses the New Jersey Supreme Court of having legislated from the bench. Finally, Scott Ott, the proprietor of ScrappleFace, suggests via email that readers of "How Appealing" may find his commentary worth a look, and he's probably right about that.
Posted at 16:34 by Howard Bashman



Senate Judiciary Committee postpones until next Tuesday its vote on the nomination of Dennis W. Shedd to serve on the Fourth Circuit: You can access official notice of the postponement at this link.
Posted at 16:16 by Howard Bashman



Lazarus on the McConnell nomination: FindLaw commentator Edward Lazarus has an essay this morning on Michael W. McConnell's nomination to serve on the U.S. Court of Appeals for the Tenth Circuit.
Posted at 09:29 by Howard Bashman



Insert your favorite Yogi Berra aphorism here: CNN.com is reporting that "A dispute over which Democrat should appear on the U.S. Senate ballot in New Jersey is headed for the U.S. Supreme Court -- the second time in two election cycles that the high court has been asked to intervene in a voting dispute." The CNN report says that the U.S. Supreme Court will be asked this morning to hear the case.
Posted at 06:17 by Howard Bashman



Wednesday, October 02, 2002
Even the winner of the Devitt Award must sometimes answer to a higher authority, the federal government suggests: The U.S. Department of Justice filed a notice of appeal in June 2002 to the Supreme Court of the United States from a three-judge federal district court panel's ruling, written by Chief Judge Edward R. Becker of the U.S. Court of Appeals for the Third Circuit, which struck down the Children's Internet Protection Act. The Act requires libraries that wish to receive federal funding to install filtering software on computers connected to the Internet. You can access the government's jurisdictional statement filed last month in support of its appeal at this link. (Link to jurisdictional statement via SCOTUSBlog.)
Posted at 23:24 by Howard Bashman



Now online at law.com: 1. A report on the presentation of the prestigious Devitt Award to Third Circuit Chief Judge Edward R. Becker at the U.S. Supreme Court building on Monday of this week. 2. A preview of an upcoming U.S. Supreme Court oral argument examining whether Mr. Bean can regain his gun possession rights (apologies to Rowan Atkinson). 3. Senior U.S. District Judge Thomas Penfield Jackson, of all people, has a commentary entitled "Don't Gag the Judges." 4. And, lastly, this article takes a look at the Ninth Circuit case that the U.S. Supreme Court yesterday announced it would review to consider which death penalty challenges fall under a 1996 federal law that limits appeals. The article states that this case involves another instance in which a circuit split exists between all other federal appellate courts to have considered the question, on the one hand, and the Ninth Circuit alone, on the other.
Posted at 22:33 by Howard Bashman



BREAKING NEWS -- Supreme Court of New Jersey rules Lautenberg can replace Torricelli on ballot: You can access the court's unanimous ruling at this link. And you can access here coverage of the ruling from The New York Times.

Update: law.com has this report on the ruling. And, both C-SPAN and C-SPAN2, at various times between now and sunrise tomorrow, will be broadcasting a video of today's oral argument. You can access the schedule for both stations at this link.
Posted at 18:48 by Howard Bashman



Wrap-up of today's New Jersey Supreme Court oral argument in the case to replace Sen. Torricelli on the ballot: The Washington Post has this report.

Update: This more recent AP report contains word that "Sen. William Frist, chairman of the Senate GOP campaign committee, said Republicans would consider appealing to the U.S. Supreme Court if the New Jersey court rules in favor of Democrats." Hmmm, remind you of anything?
Posted at 15:13 by Howard Bashman



Judging smartly: Motivated by Stuart Buck's recent Tech Central Station essay about judges and smartness, blogger Kaimi Wenger offers these views. Update: To which Stuart, his sense of humor intact, responds here.
Posted at 15:06 by Howard Bashman



Inclement weather again forces closure of Fifth Circuit's headquarters: The U.S. Court of Appeals for the Fifth Circuit is scheduled to close its headquarters in New Orleans at 4 p.m. local time today and to remain closed until Friday morning due to Hurricane Lili. You can read the court's announcement here on its Web page.
Posted at 15:02 by Howard Bashman



Ninth Circuit grants rehearing en banc in dispute between Navajo Nation and the federal government: The U.S. Court of Appeals for the Ninth Circuit today issued an order granting rehearing en banc in a case presenting a question of great importance to Indian tribes. In a divided three-judge panel opinion that the Ninth Circuit issued in April 2002, the majority ruled in favor of the federal government. Senior Circuit Judge Betty B. Fletcher issued a dissenting opinion that began:
I dissent. Reduced to its simplest terms, the majority opinion defeats the purpose of the Indian Self-Determination Act by allowing Indians to administer federal programs but denying them the funds to do the job. By pursuing a rationale that was advanced by neither party, the majority opinion bends over backwards to accord Chevron deference where none is due. In the process, the majority ignores congressional intent, as well as relevant Supreme Court authority, and creates a circuit split on an important question of administrative and Indian law.
You can access the now-vacated panel opinion at this link.
Posted at 13:50 by Howard Bashman



Today's New Jersey Supreme Court oral argument in the case to replace Sen. Torricelli on the ballot: The Associated Press offers this report, which suggests that the oral argument will continue into the afternoon.
Posted at 12:53 by Howard Bashman



Dorf on October 2002 Term: Columbia Law School Professor Michael C. Dorf, in an essay published today at FindLaw, provides part one of his October 2002 Term U.S. Supreme Court preview.
Posted at 12:44 by Howard Bashman



James Lileks isn't a lawyer: He doesn't even play one on TV. But Lileks does seem to know a thing or two about statutory construction and possesses a great deal of common sense -- two traits that many actual lawyers lack -- which makes his take on the court case to replace Sen. Torricelli on New Jersey's ballot worth a look.

Meanwhile, Law Professor and actual lawyer Jonathan Adler, writing on NRO's The Corner, points out here that the Democrats in New Jersey have some precedent that they can point to in support of their arguments.
Posted at 09:42 by Howard Bashman



Tuesday, October 01, 2002
This promises to be quite good: If my friend Tom Goldstein were to start a blog about the Supreme Court of the United States, it would probably look something like this. Now we can all say we were there from the start.
Posted at 23:35 by Howard Bashman



U.S. Supreme Court asked to decide "who owns the law" in case involving copyright challenge to reproduction of model code's text: You can access the petition for writ of certiorari filed last month in the Supreme Court of the United States at this link. You can access here my original coverage of the U.S. Court of Appeals for the Fifth Circuit's interesting en banc ruling, which rejected the copyright claim by a vote of 9-6. (Link to cert. petition via Roger's View.)
Posted at 23:07 by Howard Bashman



Women, sports, and bananas: Title IX means so much more than that, Lynn Sanders argues in an essay published online this afternoon at Slate.
Posted at 22:21 by Howard Bashman



Supreme Court of New Jersey to consider question of Sen. Torricelli's ballot replacement: You can access here, courtesy of FindLaw, a copy of the Supreme Court of New Jersey's order issued today agreeing to review and decide this question in the first instance, without the benefit of any lower court proceedings. Dave Kopel, in an essay published today at National Review Online, reviews the language of the relevant New Jersey statutes.

While I am firmly of the view that a judge's political orientation should not influence his or her ruling on a case, I recognize that others are far more skeptical. Such skeptics may find the following facts to be of interest. While The Associated Press correctly reports here that six of the seven Justices serving on New Jersey's highest court have been appointed or reappointed by a Republican governor, that court currently consists of four Democratic Justices, two Republican Justices, and one Independent Justice. Before the very recent appointment by New Jersey's Democratic Governor James E. McGreevey of Democrat Barry T. Albin to serve on the court, the Supreme Court of New Jersey had three Republican Justices, three Democratic Justices, and an Independent Justice.

At least in the eyes of many skeptics, if the Supreme Court of New Jersey rules in a way that leads to a victory by a Democratic candidate for the U.S. Senate, the Democratically-caused lack of balance on New Jersey's highest court will be the reason why. That lack of balance on New Jersey's highest court could enable the Democrats to retain control of the U.S. Senate, where they will be able to operate the Senate Judiciary Committee so as to require balanced appointments to the Nation's federal appellate courts. And that would be quite ironic indeed.

Update: And the plot thickens, according to this report from the Web site PoliticsNJ.com:
Two New Jersey state Supreme Court Justices were contributors to Sen. Bob Torricelli's re-election campaign and should recuse themselves from a hearing tomorrow to consider whether Democrats can replace the Senator on the ballot, a GOP Assemblyman said today.

Justices James Zazzali and Barry Albin both contributed $1,000 to Torricelli in 1999, before their appointments to the state's top court, according to Federal Election Commission records.
The report goes on to say that Justice Albin also contributed to the campaign of then-Sen. Frank Lautenberg. Lautenberg, of course, has just been named as Torricelli's proposed replacement in New Jersey's U.S. Senate race.
Posted at 20:57 by Howard Bashman



Now both the reporters and the sources can be anonymous: To protest the pace of negotiations toward a new contract, reporters for The Washington Post are staging another byline strike, but this one is scheduled to last all week.
Posted at 17:51 by Howard Bashman



Breaking news: CNN.com is reporting that "New Jersey Democrats select U.S. Rep. Frank Pallone Jr. to replace Robert Torricelli as U.S. Senate candidate."

Update: CNN appears to have been a bit out in front of the curve on this one, as The Associated Press is reporting tonight that Pallone remains one of two possible replacement candidates.

Second Update: And now it appears that CNN's earlier report was flat-out wrong, because it is now reporting online that "Former Democratic Sen. Frank Lautenberg, 78, was chosen by the party to replace Torricelli on the November 5 ballot after another choice -- U.S. Rep. Frank Pallone -- said he would not enter the race, CNN confirmed Tuesday evening." In CNN's defense, however, the Web site PoliticsNJ.com reports:
Lautenberg, 78, was not the first choice of Gov. James E. McGreevey and other local party leaders. Democrats turned to him after initially offering the nod to Rep. Frank Pallone, and after former Sen. Bill Bradley and Rep. Bob Menendez declined to run. Pallone had reportedly accepted McGreevey's offer to run, only to get cold feet shortly before an scheduled announcement.
But for those cold feet, CNN's initial report would have turned out correct.
Posted at 16:54 by Howard Bashman



Bruce Fein blasts Senator Charles E. Schumer: You can access here Fein's op-ed entitled "Bench independence besieged," which was published in today's edition of The Washington Times.
Posted at 16:46 by Howard Bashman



Federal appellate court upholds in large measure constitutionality of University of Wisconsin's system of student activity fees: You can access the ruling of the U.S. Court of Appeals for the Seventh Circuit, issued today, at this link. The Seventh Circuit's ruling reverses a trial court decision which held that the university's system of student activity fees violated the First Amendment.
Posted at 15:24 by Howard Bashman



Second Circuit allows putative class actions against Netscape challenging SmartDownload to proceed: The U.S. Court of Appeals for the Second Circuit issued a ruling today that is sure to be of interest to anyone who uses the Internet to download software. The opinion begins:
This is an appeal from a judgment of the Southern District of New York denying a motion by defendants-appellants Netscape Communications Corporation and its corporate parent, America Online, Inc. (collectively, "defendants" or "Netscape"), to compel arbitration and to stay court proceedings. In order to resolve the central question of arbitrability presented here, we must address issues of contract formation in cyberspace. Principally, we are asked to determine whether plaintiffs-appellees ("plaintiffs"), by acting upon defendants' invitation to download free software made available on defendants' webpage, agreed to be bound by the software's license terms (which included the arbitration clause at issue), even though plaintiffs could not have learned of the existence of those terms unless, prior to executing the download, they had scrolled down the webpage to a screen located below the download button. We agree with the district court that a reasonably prudent Internet user in circumstances such as these would not have known or learned of the existence of the license terms before responding to defendants' invitation to download the free software, and that defendants therefore did not provide reasonable notice of the license terms. In consequence, plaintiffs' bare act of downloading the software did not unambiguously manifest assent to the arbitration provision contained in the license terms.
You can access the decision at this link.
Posted at 15:11 by Howard Bashman



Effort by New Jersey Democrats to replace Sen. Torricelli on ballot to be heard by New Jersey's highest court: The Associated Press has this report.
Posted at 12:53 by Howard Bashman



Laurence H. Tribe v. Sean Wilentz on Justice Antonin Scalia: You can access this debate, conducted through an exchange of letters, at this link via Jurist. You can access Justice Scalia's remarks at issue in the debate at this link. You can access Wilentz's op-ed published in The New York Times, in which Wilentz originally criticized Justice Scalia'a remarks, at this link.
Posted at 12:29 by Howard Bashman



This morning's orders granting certiorari: You can access the U.S. Supreme Court's orders granting certiorari this morning in four cases at this link.

Update: Courtesy of The Associated Press, you can access here and here summaries of three of these four cases.

Second Update: The fourth case asks the Court to resolve the circumstances in which a federal appellate court may excuse an untimely notice of cross-appeal. You can access a copy of the Federal Circuit's order dismissing the cross-appeal as untimely at this link.
Posted at 12:10 by Howard Bashman



In Tuesday's newspapers: The New York Times reports here that plaintiffs challenging undergraduate race-based admissions preferences at the University of Michigan will ask the U.S. Supreme Court to grant review notwithstanding the Sixth Circuit's failure so far to announce its ruling in that matter. The en banc Sixth Circuit previously did decide a companion case challenging similar preferences at the University of Michigan Law School, and a cert. petition filed by applicants who oppose such preferences is now pending before the Supreme Court (although it is not yet fully briefed). The law school case was argued to the Sixth Circuit on the same day as the yet-to-be decided undergraduate case.

Update: Later this morning, The Associated Press provided this additional coverage.
Posted at 00:19 by Howard Bashman




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