Charles Lane reports on the "covert legal system" sought for terror suspects: Sunday's edition of The Washington Post contains a front page article by U.S. Supreme Court correspondent Charles Lane that begins:

The Bush administration is developing a parallel legal system in which terrorism suspects -- U.S. citizens and noncitizens alike -- may be investigated, jailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system, lawyers inside and outside the government say.

Some will undoubtedly wonder how this new system differs from what we've already seen in the cases of alleged enemy combatants, and U.S. citizens, Yaser Esam Hamdi and Jose Padilla. Posted at 23:21 by Howard Bashman

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Now that Thanksgiving is over: It's time to bring in the lawyers. Posted at 21:39 by Howard Bashman

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"New Light on Jogger's Rape Calls Evidence Into Question": Tomorrow's edition of The New York Times contains a lengthy article bearing this headline. Posted at 20:21 by Howard Bashman

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"Supreme Court Could Opt for a Momentous Term": Linda Greenhouse has a report in Sunday's edition of The New York Times that begins:

The Supreme Court faces choices in the next few weeks that could convert the current term from solidly interesting to potentially momentous.

You can access her full report at this link. I made a similar observation here in response to Dahlia Lithwick's recent essay about possible upcoming U.S. Supreme Court retirements. Posted at 20:15 by Howard Bashman

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"Ashcroft transforms the culture of Justice Department": Yesterday's edition of The Kansas City Star contained a very interesting article that began:

Most Americans know John Ashcroft as the public face of domestic security, announcing indictments of putative terrorists, warning of future attacks.

The role of attorney general, however, is much more than being the top cop in the war on terror. And after nearly two years in office, Ashcroft has significantly changed the Justice Department's culture and the way it interprets the law on a variety of domestic policy issues unrelated to the war.

You can access the complete article at this link. Posted at 10:56 by Howard Bashman

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Elsewhere in Saturday's newspapers: Today's edition of The Los Angeles Times reports here that "Geography is looming as a formidable barrier to Democrats' hopes of recovering from their 2002 losses and recapturing either the Senate or House in 2004." In yesterday's LATimes, the newspaper's U.S. Supreme Court correspondent, David G. Savage, had an article entitled "High Court Poised to Hear 2 Equal Protection Cases; In one, race as a 'plus' factor in admission policies is challenged; the other tests whether gays can be prosecuted for having sex at home."

The Boston Globe today reports here that those hoping to see a photo of the Nation's current President and Vice President on display at the J. Joseph Moakley U.S. Courthouse in Boston will be disappointed. The Globe contains this article reporting on Massachusetts' appeal of a federal district court's recent ruling approving the Microsoft antitrust settlement. Here you can access a report that begins, "Federal law enforcement officials are concerned that Al Qaeda is targeting what authorities fear is an increasingly fertile breeding ground for Islamic extremism: US prisons." Finally, here is an article entitled "Some Jews objecting to [public] menorah ceremony." Posted at 10:40 by Howard Bashman

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In Saturday's newspapers: Saturday's edition of The New York Times contains a lengthy article reporting that the "Administration Begins to Rewrite Decades-Old Spying Restrictions." The Times reports here on "an episode more than 80 years ago in which the Harvard administration methodically harassed a number of young men for being gay, on suspicion of being gay or simply for associating with gays." In an op-ed, legal ethics scholar Stephen Gillers explains "Why Judges Should Make Court Documents Public." Relatedly, The Times also contains an editorial calling on a federal district court to lift the veil of secrecy surrounding portions of court documents in the pending suit that challenges the McCain-Feingold campaign finance law. Two letters to the editor of The Times are worth a look: here's one in response to "Adam Cohen's derisive report on the recent Federalist Society conference"; and here's another on the subject of cameras in the jury deliberation room. Finally, The Times reports here on Massachusetts' decision to appeal to the D.C. Circuit from an order approving the Microsoft antitrust settlement; The Washington Post has an article on the same subject matter here. Posted at 00:31 by Howard Bashman

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Here's the text of the order that Justice John Paul Stevens entered yesterday allowing display of a menorah in a Cincinnati public square:

The Court of Appeals for the Sixth Circuit has entered a stay of a District Court order enjoining enforcement of a city of Cincinnati ordinance, and plaintiffs have filed a motion with me as Circuit Justice seeking an order vacating that stay.

As did the District Court, the Court of Appeals states that the ordinance in question "reserves the exclusive use of Fountain Square to the City" for the 7-week period beginning today.

Though the city has filed a narrowing interpretation of this ordinance with me, for the purposes of the present motion I accept the construction of the ordinance by the courts below (who also had the benefit of this narrowing interpretation) even if I might have arrived at a different conclusion without such guidance.

Under the District Court's reading, the ordinance is significantly broader than a reservation of the exclusive right to erect unattended structures on the square during this period of high use, which I assume the city could have reserved to itself.

Given the square's historic character as a public forum, under the reasoning in this Court's decision in Capitol Square Review and Advisory Bd. V. Pinette 515 U.S. 753 (1995), I think the District Court correctly enjoined the city from enforcing "those portions" of the ordinance "which give the City exclusive use of Fountain Square" for the next seven weeks.

It follows, I believe, that the Court of Appeals' stay should be vacated.

You can access additional coverage of this matter here, courtesy of The Cincinnati Enquirer. Posted at 00:27 by Howard Bashman

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In time for the first night of Hanukkah, U.S. Supreme Court lifts Sixth Circuit's stay prohibiting display of menorah in Cincinnati public square: The Associated Press is reporting this evening that the U.S. Court of Appeals for the Sixth Circuit suffered a quick reversal today at the hands of the U.S. Supreme Court:

The Supreme Court upheld a federal judge's ruling that the city of Cincinnati cannot bar a Jewish organization from displaying a menorah on a downtown plaza during the holidays.

In it's ruling Friday, the high court lifted a stay by the 6th U.S. Circuit Court of Appeals, noting the square's historic character as a public forum.

You can access the complete Associated Press report here. Posted at 19:10 by Howard Bashman

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"One state appeals Microsoft deal": CNN is reporting: "Massachusetts said Friday it is appealing a federal judge's antitrust settlement with Microsoft Corp. as seven states dropped out of the lawsuit against the software maker." The appeal will be heard by the U.S. Court of Appeals for the D.C. Circuit. Posted at 16:35 by Howard Bashman

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The Eighth Circuit has issued a bunch of opinions today: The U.S. Court of Appeals for the Eighth Circuit has issued four published and two unpublished opinions today, the Friday after Thanksgiving. One of the published opinions is worthy of mention. In it, the court upheld a judgment entered in favor of an employee of Yellow Freight System, Inc., and against Yellow Freight, on the employee's claims of same-sex sexual harassment under the Minnesota Human Rights Act. The employee who brought the suit was the subject of some particularly graphic and distasteful graffiti that appeared on the walls of Yellow Freight trailers. The opinion recounts the graffiti in detail and includes a discussion of whether graffiti saying simply that someone "sucks" is a sexual epithet or merely a term that connotes non-sexual disapproval or disparagement. You can access the opinion at this link. Posted at 15:41 by Howard Bashman

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The U.S. Supreme Court's 5-4 order from Wednesday vacating the Eleventh Circuit's stay of execution is now available online: You can access it here, and my earlier mention of this matter (providing a bit more background) is available here. Posted at 15:30 by Howard Bashman

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"Supreme Court to Consider Tribal Lands": The Associated Press has this report about a case to be argued before the U.S. Supreme Court on Monday. Posted at 15:27 by Howard Bashman

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Thanks for speaking, Dark Goddess of Replevin: A blog that goes by the name "The Dark Goddess Of Replevin Speaks" had some very nice things to say about "How Appealing" the other day. The post in question begins:

In some random googling this morning (for which I expect to receive a bill from myself for fifty bucks) I stumbled on a superlative blog on appellate matters across the country. Howard Bashman combines humor and heavy-duty substance in a manner that looks effortless, but I know it isn't, because I try.

You can access the entire post at this link. For those unfamiliar with the term "replevin," law.com's legal dictionary provides a definition here. Posted at 09:30 by Howard Bashman

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On the agenda for today: Lunch in the Philadelphia suburbs with John and Jessie Rosenberg of the Discriminations blog. Posted at 09:27 by Howard Bashman

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In Friday's newspapers: Today's edition of The Los Angeles Times explains what's new with Gennifer Flowers, whose lawsuit against Hillary Rodham Clinton and others the U.S. Court of Appeals for the Ninth Circuit recently reinstated in part, as I previously reported here and here. The LATimes today also previews a pending U.S. Supreme Court case involving the battle over how much telemarketing firms can keep of the funds they raise for charity. And here you can access an LATimes article entitled "States Challenge Bush on Embryonic Stem-Cell Research."

Today's edition of The New York Times contains an article entitled "The High Cost of Losing the Senate." Among other things, the article explains:

Some prominent committees can also be a ticket to media exposure, especially crucial for ambitious lawmakers who want to keep their profile high. For instance, the most junior member of the Judiciary Committee, Senator John Edwards, Democrat of North Carolina, would almost certainly not be happy to be booted off the panel -- a strong platform for his budding presidential bid -- particularly given the prospect of a Supreme Court nomination and an ensuing battle over it in the next Congress.

The Boston Globe today contains an article that bears the headline "Some oppose antiterror law's time limit on review; 1-year deadline called unjust in some cases." The law in question is the so-called Antiterrorism and Effective Death Penalty Act of 1996, known to many lawyers a AEDPA. The Globe today also reports that F. Lee Bailey " is fighting to get his law license reinstated" in Massachusetts. He was recently in the news when he lost a battle against the federal government over funds he sought to claim as part of an attorney's fee. Posted at 09:14 by Howard Bashman

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Must be that time of year again: Today's edition of The Cincinnati Enquirer contains an article entitled "Menorah, cross kept off square" that reports:

Cincinnati officials won a rare legal victory Wednesday when an appeals court ruled that the city could continue to ban private holiday displays on Fountain Square, at least for this holiday season.

The decision by the U.S. Sixth Circuit Court of Appeals came a few hours after U.S. District Judge Susan Dlott declared the city's ban unconstitutional.

The appeals court did not reverse Judge Dlott's decision, but it did stop enforcement of her order until the case can be considered on appeal.

The Sixth Circuit's decision means individuals and private groups that had hoped to install displays on the square this year will most likely be barred from doing so.

You can access the complete article at this link. Posted at 23:19 by Howard Bashman

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Puritans were not prudes, The Chicago Sun-Times reports: Maybe the L-tryptophan is beginning to make me sleepy, but this article seems interesting. Posted at 23:15 by Howard Bashman

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Third-year Yale Law School student, and brand new blogger, analyzes two very important appellate decisions recently featured here: Nick Daum shares some interesting thoughts about two important federal appellate court rulings issued this past Tuesday that he first read about below, here and here. For those confused by Nick's blog template, this is my Web log, and this is his. Posted at 22:50 by Howard Bashman

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"Spock out": Just in time for Thanksgiving, there's news from Alabama that will cause fans of the Vulcan to rejoice. As I mentioned in my earlier post on this matter, I thought the federal court trial judge would find this suit "most illogical." (Via Sam Heldman.) Posted at 16:32 by Howard Bashman

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Today's newspaper coverage of yesterday's resignation by the dean of the Boalt Hall School of Law: You can access here coverage from The Daily Californian, UC Berkeley's student newspaper. Here you'll find coverage from the San Francisco Chronicle; here you'll find coverage from the Contra Costa Times; and here's an article from today's edition of The Los Angeles Times. Posted at 16:01 by Howard Bashman

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"Sisters are doin' it for themselves": Today's edition of The New York Times reports here that there aren't enough female bloggers. Who would have guessed after last week's predominantly female law bloggers panel at the Yale Law School? And why focus on numbers when excellence is all that matters? One especially excellent blog -- Denise Howell's "Bag and Baggage" -- turns one year old today. Denise's blog played a major role in causing me to launch "How Appealing." Be sure to pay her a visit and say congratulations! (This post's title is via Aretha Franklin.) Posted at 09:45 by Howard Bashman

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Colleagues criticize rhyming Pa. Supreme Court justice: Hmm, this news makes me want to try my hand at a little poem of my own:

Into a published dissent,
The poetic stanza went;
The majority's usual love for rhyme
Did not extend to this particular time.

Although justice may well sometimes be poetic,
The dissent made the majority frenetic.
A rhyming dissent in Pennsylvania is quite rare;
Why is the majority pulling out its own hair?

The Associated Press has this report on yesterday's ruling of the Supreme Court of Pennsylvania. As soon as yesterday's opinions appear online, I will post links to them here. Posted at 08:38 by Howard Bashman

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Now available online at law.com: In an article that could have been entitled "Bolting from the Hall," The Recorder provides this coverage of the dean's resignation today from the University of California, Berkeley's Boalt Hall School of Law.

Marcia Coyle previews the pending U.S. Supreme Court challenge to IOLTA accounts under the Fifth Amendment's takings clause. I'm generally loathe to predict the outcome of pending cases, but in this instance I'm all but certain that the prevailing party will have in its name the words "Foundation," "Legal," and "Washington."

This article reports on a very important ruling today by the Supreme Court of California that answered in the negative the question "whether an individual may bring an action for money damages on the basis of an alleged violation of a provision of the California Constitution, in the absence of a statutory provision or an established common law tort authorizing such a damage remedy for the constitutional violation."

Finally, the Texas Lawyer reports here on the controversy underway in that State over whether a television program may record jury deliberations in a death penalty case. Posted at 22:27 by Howard Bashman

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Two pearls of wisdom from Judge Posner: It's rare to peruse an appellate opinion written by Seventh Circuit Judge Richard A. Posner without finding at least one or two passages that are worthy of mention. And today's example is no exception, as these two excerpts demonstrate:

We note preliminarily that the district court based its decision entirely on an unreported district court decision from another circuit, that FutureSource places great reliance on that decision, and that Reuters is at pains to distinguish it. The reasoning of district judges is of course entitled to respect, but the decision of a district judge cannot be a controlling precedent. The law's coherence could not be maintained if district courts were deemed to make law for their circuit, let alone for the nation, since district courts do not have circuit-wide or nationwide jurisdiction.

Later in the opinion, Judge Posner writes:

Nonsensical interpretations of contracts, as of statutes, are disfavored. Not because of a judicial aversion to nonsense as such, but because people are unlikely to make contracts, or legislators statutes, that they believe will have absurd consequences. This principle is apt to the present case.

So this Thanksgiving eve, I will spend a moment being thankful for all those federal and state appellate judges who are both really smart and really good writers too. Just as appellate judges prefer to receive briefs that make sense and are well written, appellate lawyers prefer to read opinions that exemplify those same two qualities. Posted at 21:42 by Howard Bashman

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News from here and there: The Associated Press reports here that plans to execute a Florida inmate are back on after a sharply divided U.S. Supreme Court voted 5-4 (order not yet available online) to vacate a stay of execution that the U.S. Court of Appeals for the Eleventh Circuit had recently entered.

We may learn as early as Monday whether the U.S. Supreme Court will review the constitutionality of the University of Michigan Law School's system of racial preferences in student admission decisions, CNN reports here. Because the case satisfies every relevant criteria for U.S. Supreme Court review, I would be quite surprised if review were not granted.

The AP reports here that the U.S. Court of Appeals for the First Circuit has denied the request of former Providence, Rhode Island Mayor Vincent "Buddy" Cianci Jr. to stay out on bail while he appeals from his recent federal corruption conviction. He is due to report to the Federal Correctional Institution at Ft. Dix, New Jersey on December 6, 2002.

The AP reports here that "[a] federal judge on Wednesday blocked the Bush administration's attempt to take a lawsuit against Vice President Dick Cheney's energy task force to a federal appeals court" because "the Justice Department had not shown adequate reason why he should turn the case over the appeals court before a final judgment."

Finally, MSNBC offers a report that attempts to answer this question: "If you are a U.S. citizen, should you care that alleged terrorists Jose Padilla and Yaser Hamdi are being jailed indefinitely, without access to their lawyers, in military brigs?" Posted at 21:08 by Howard Bashman

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Another prestigious law school deanship will soon have a vacancy: The Associated Press is reporting late this afternoon:

The dean of Berkeley's Boalt Hall law school has resigned after being accused of sexually harassing a former student

You can access the law school's Web site at this link. Posted at 17:05 by Howard Bashman

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"Conservative Court Could Be Dems' Best Friend": Glenn Harlan Reynolds and Brannon P. Denning explain why here. Posted at 16:53 by Howard Bashman

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Supreme Court of Missouri indefinitely suspends two lawyers from practice of law for assisting in suit against their former client, Chrysler Corporation: Yesterday the Supreme Court of Missouri, in an opinion you can access here, suspended two lawyers from the practice of law indefinitely -- with leave to apply for reinstatement in one year -- for having "engaged in professional misconduct by representing another person in a substantially related matter adverse to the interest of a former client." The former client in question was Chrysler Corporation. (Thanks to the reader who yesterday sent along news of this ruling.) Posted at 16:42 by Howard Bashman

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This news has no effect on the Victoria's Secret - Victor's Secret case: The Associated Press this morning issued a news report bearing the headline "Ky. Sex Shop Switches to Selling Bibles." Fortunately for those of us awaiting the outcome of the Victoria's Secret - Victor's Secret trademark dilution dispute, the Kentucky sex shop in the news today is not the Kentucky-based store formerly known as Victor's Secret. Anyone interested in learning more about the Victoria's Secret vs. Victor's Secret case can do so here and here. Posted at 14:19 by Howard Bashman

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"Live long and prosper": Former Alabama resident Sam Heldman writes here that someone "has sued claiming that Birmingham's statue of Roman god (or demi-god?) Vulcan is a violation of the First Amendment." (See also the news article that Sam links to, here.) Who will be the first to label this suit "most illogical"? Posted at 09:45 by Howard Bashman

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From this week's edition of The Onion: The Onion has two items of interest this week. First up, an article that begins, "Vowing to 'vigilantly defend the Second Amendment and preserve our most basic civil liberties,' the National Machete Association denounced congressional efforts to enact machete-control legislation Monday." And here the person on the street responds to the question, "Hillary in 2004?"

Update: Second Amendment scholar Clayton Cramer (whose blog you can access here) emails to note that "Oddly enough, some of the early case law associated with the Second Amendment and its analogs in state constitutions does involve Bowie knives, Arkansas toothpicks, and other toys not so terribly different from a machete." He also provides a link to this 1859 ruling (which becomes much easier to read once you find the "rotate view" button on the Adobe Acrobat Reader) of the Supreme Court of Texas. Posted at 08:31 by Howard Bashman

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Speech codes at Harvard Law School: Today's edition of The Boston Globe contains two op-eds on the subject of a proposed speech code at the Harvard Law School. You can access Alan M. Dershowitz's op-ed here, and here you can access the op-ed of Scot Lehigh. Posted at 08:15 by Howard Bashman

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Elsewhere in Wednesday's newspapers: Today's edition of The Boston Globe contains an article reporting that "Two liberal organizations are urging Republican Senators Olympia Snowe of Maine, Lincoln Chafee of Rhode Island, and Arlen Specter of Pennsylvania to switch sides." USA Today offers an article entitled "Republican control gives business hope in limiting liability." And a media columnist for The Los Angeles Times reports here that a proposed Securities and Exchange Commission regulation raises serious First Amendment free speech-free press concerns. Posted at 07:47 by Howard Bashman

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In Wednesday's newspapers: In Wednesday's edition of The Washington Post, Charles Lane reports on the knee surgery that Chief Justice William H. Rehnquist had yesterday. The Thanksgiving turkey that President Bush pardoned yesterday was the first female turkey ever to play the role of pardon recipient (interject your own joke here if need be), the Post reports in this article, which mentions Justice Sandra Day O'Connor among a lengthy list of first females.

In The New York Times, reporter Adam Liptak focuses attention on a very interesting recent ruling by the Supreme Court of Illinois:

Tabitha Pollock was sleeping when her boyfriend killed her 3-year-old daughter. For failing to anticipate that crime, Ms. Pollock was convicted of first-degree murder and has served 7 years of her 36-year sentence.

Last month, the Illinois Supreme Court overturned Ms. Pollock's conviction, saying the prosecution's theory -- that she should have known that her boyfriend, Scott English, who is serving a life sentence, was going to murder her child -- has no basis in the law. Barring something unusual, she will be released from the prison here in the next few weeks.

The case raises the question of whether some judges, prosecutors and communities ask too much of mothers and are prepared to punish them, even at the expense of the surviving family, when things go wrong. Legal experts said mothers had been held accountable for abuse by others, under various theories and often with more evidence, in hundreds of similar cases around the nation. They knew of no such cases involving fathers.

Lastly for now, The NYTimes also contains an editorial that advances a sensible argument against allowing cameras in to film jury deliberations. Posted at 00:10 by Howard Bashman

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Plan B: Today's edition of The Salt Lake Tribune reports here that "To get Salt Lake City to give up its easement through the Main Street Plaza, the LDS Church said Monday it is willing to pay an undetermined amount of money and give up its right to proselytize on the property." Posted at 23:58 by Howard Bashman

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Are Al and Tipper Gore's books selling up to expectations? Not exactly, according to Lloyd Grove, writing in today's edition of The Washington Post. But there's hope, the article explains:

Former Gore campaign press secretary Chris Lehane e-mailed: "As long as Justice Scalia -- Judge Grinch -- does not have the Supreme Court rule that the Gores' book cannot be a stocking stuffer for the holidays, I am sure it will do well. Also, Bush should like the Gore picture book -- with all the photos, it is right up his alley, while the Woodward book seems to be a little long and dense for his type of a read." Gore's current spokesman, Jano Cabrera, declined to try topping Lehane: "Why put my foot through a Picasso?"

Apparently Gore's current and former staffers believe that nothing works like a gratuitous shot at the U.S. Supreme Court to jump-start book sales. Posted at 23:55 by Howard Bashman

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"Judicial confirmation process is broken, and it needs fixing": Yesterday's edition of The Philadelphia Inquirer contained an op-ed bearing this title. Posted at 23:52 by Howard Bashman

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Circuit Judge Easterbrook grapples with the Economic Espionage Act of 1996: Before today, the U.S. Court of Appeals for the Seventh Circuit had not had the pleasure of deciding a case involving the Economic Espionage Act of 1996. Today, fortunately for fans of interesting-to-read appellate decisions, that task fell to Circuit Judge Frank H. Easterbrook. And he did not disappoint.

The opinion, which you can access here, mentions not only Avogadro's number and Einstein's theory of relativity, but it also goes on to observe:

Selling a copy of Zen and the Art of Motorcycle Maintenance is not attempted economic espionage, even if the defendant thinks that the tips in the book are trade secrets; nor is sticking pins in voodoo dolls attempted murder. Booksellers and practitioners of the occult pose no social dangers, certainly none of the magnitude of those who are tricked into shooting bags of sand that have been substituted for targets of assassination.

Circuit Judge Kenneth F. Ripple filed a concurring opinion which began, "I concur in the judgment of the court. I write separately because the panel majority's opinion deals with several matters that are not necessarily raised by this case, and, in my view, it is imprudent to confront these issues prematurely." Posted at 22:28 by Howard Bashman

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What would you call concrete that's similar to gelatin? "Retarded" is the answer that this opinion issued today by the U.S. Court of Appeals for the Tenth Circuit provides. And where was that "retarded" concrete intended to be installed? Oh, nowhere important; it was only going to be used in the construction of Runway 17L-35R at the Denver International Airport. Posted at 22:12 by Howard Bashman

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Tenth Circuit judge in concurring opinion sharply criticizes Oklahoma County District Attorney's Office: In a concurring opinion to a Tenth Circuit decision issued today, Circuit Judge Robert H. Henry of Oklahoma City sharply criticized the conduct of the Oklahoma County District Attorney's Office in this and certain other cases:

I write separately, however, to voice my concern regarding the prosecutorial misconduct that seems to have played a not insignificant role in this case.

Prosecutorial misconduct at trial has routinely been the issue of postconviction litigation. While it is true that any prosecutor will have his share of trial-outcome challenges, over the last fifteen years, the Oklahoma County District Attorney's office has been cited for actions deemed improper, "egregiously improper," deceitful and impermissible in striking foul blows, deplorable, "perhaps inappropriate," worthy of condemnation, and, in this very case, "condemned" and "certainly error." Actions by that office have been the basis for the invalidation of both sentences and capital convictions. It is hard to formulate any kind of justifiable characterization of the conduct in the present case, for the comments push hard against the boundaries of propriety. An experienced prosecutor should know better -- especially considering the frequent criticism of his tactics by both state and federal courts -- and should be willing to follow the law he has sworn to uphold. The prosecution's actions in this case suggest defiance of Oklahoma courts and disregard for Oklahoma law.

[footnotes omitted]

At the close of his concurring opinion, Judge Henry wrote:

Finally, I recognize that the Oklahoma County District Attorney’s Office has done much efficient work over the years. But as the cases chronicled by the Oklahoma Court of Criminal Appeals show, some prosecutors in that office over the last fifteen years, have repeatedly and seriously crossed the line in capital cases. I have voiced my concerns to warn against conduct that threatens otherwise valid convictions and to encourage more ethical behavior in the future.

You can access today's complete Tenth Circuit ruling at this link. Posted at 22:01 by Howard Bashman

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Tenth Circuit affirms the dismissal of libel claims against Bloomberg News Service: You can access today's ruling at this link. Posted at 21:55 by Howard Bashman

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En banc Fifth Circuit waiver-of-grounds-for-acquittal ruling triggers noteworthy dissenting opinion that touches on scope of Second Amendment rights: The en banc U.S. Court of Appeals for the Fifth Circuit today ruled 12-2 in a decision you can access here that "Where, as here, a [criminal] defendant asserts specific grounds for a specific element of a specific count for a [Federal] Rule [of Criminal Procedure] 29 motion [seeking entry of a judgment of acquittal], he waives all others for that specific count."

At issue was whether the defendant had preserved the strongest ground to challenge his conviction for having violated 18 U.S.C. sec. 922(g)(3), a statute that makes it a crime for "any person who is an unlawful user of or addicted to any controlled substance" to possess a gun. In proceedings before the trial court, the defendant only sought acquittal on the ground that he was not a drug addict. The defendant did not seek acquittal from the trial court on the ground that he was not an unlawful user of drugs. The en banc majority concluded that because the defendant only moved for an acquittal before the trial court on the ground that he was not a drug addict, the defendant lost the right to have the Fifth Circuit conduct a searching review of whether sufficient evidence existed to prove that the defendant was "an unlawful user" of illegal drugs.

Far more interesting than the majority's per curiam opinion was the dissenting opinion written by Circuit Judge Harold R. DeMoss, Jr., in which Circuit Judge Jerry E. Smith joined. The dissenting opinion begins by taking issue with the majority's holding that the defendant's specific challenge to the sufficiency of the evidence resulted in a waiver of other grounds for challenging sufficiency on appeal:

I am truly amazed at the ingenuity displayed by the en banc majority in fashioning a new rule of criminal procedure, which permits them to dispose of this case without addressing some tough substantive issues. If our primary purpose as appellate judges is to make appellate review as difficult as possible for criminal defendants, then I congratulate my colleagues for this new hyper technicality that they uncovered in Fed. R. Crim. P. 29.

From there, the dissenting opinion moves on to an even more interesting discussion of why, in the view of the two dissenting judges, the "an unlawful user of * * * any controlled substance" language in Section 922(g)(3) violates the Second Amendment to the U.S. Constitution. Judge DeMoss explains:

Even more fundamentally, I think the en banc majority errs in making any judgment about the sufficiency of the evidence without first coming to grips with the essential definitional problem that this case raises, i.e., what do the words "unlawful user," as they appear in sec. 922(g)(3), require in the way of proof beyond a reasonable doubt? * * *

During the time that Herrera's case was pending in the district court and coming up to our court on appeal, a panel of our court was deciding the case of United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) which held that the Second Amendment "protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded in Miller." Id. at 260.

Defense counsel for Herrera made a cryptic motion at the conclusion of the evidence in Herrera's case that he was entitled to Second Amendment protections and count 16 violated those protections. While Herrera's case was pending on our appellate docket, the Supreme Court of United States denied certiorari in Emerson, 122 S. Ct. 2362 (2002) (mem.), and consequently the panel decision in Emerson remains as the binding law in the Fifth Circuit. Emerson clearly recognizes that the Second Amendment right to keep and bear arms "does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." Id. at 261.

In light of Emerson, I would urge that Second Amendment rights can be abridged only if the restriction survives strict scrutiny. To the best of my research, Herrera's case presents the first occasion on which our court has been asked to evaluate the appropriateness of sec. 922(g)(3) in light of our circuit's interpretation of the Second Amendment in Emerson. I realize that there are some judges on our court who turn-up their noses and snicker at the Second Amendment, but until changed by a subsequent decision of the Supreme Court or by an en banc reconsideration in our court, Emerson stands as the applicable law in our circuit.

If some other statute of Congress purported to take away or restrict (1) "the right of the people peaceably to assemble and to petition the government for redress of grievances" under the First Amendment, or (2) "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures" under the Fourth Amendment, or (3) the right of any person to be free from being "compelled in any criminal case to be a witness against himself" under the Fifth Amendment, or (4) the right of any person "to have the assistance of counsel for his defense" in any criminal case under the Sixth Amendment because, in each event, such person was "an unlawful user of or addicted to a controlled substance," then surely this court would use the test of strict scrutiny to determine the validity of that statutory restriction.

The precise question raised by Herrera's case is whether sec. 922(g)(3) is a reasonable and narrowly tailored restriction, which accurately defines those categories of individuals who should be deprived of their Second Amendment right to keep and bear arms. I can certainly agree that the definition of "addict" set forth in 21 U.S.C. sec. 802(1) passes the test of Emerson as a reasonable restriction on Second Amendment rights. However, in my judgment the words "unlawful user" completely fail to pass Emerson's requirement of strict scrutiny because (1) there is no statutory definition of such words; (2) there is no common and ordinary meaning to such words; (3) there is nothing in the legislative history which would indicate what Congress had in mind by using such words; and, (4) there is nothing from which a court or jury can determine: (i) what quantities of (ii) what controlled substances, in (iii) what time frame on (iv) what occasions, and with (v) what side affects are necessary to constitute "an unlawful user."

[emphasis added]

I am pleased to see that this decision has already come to Eugene Volokh's attention, and I look forward to seeing his comments on the decision once he has a chance to study it, which will cause him to appreciate that even within the Fifth Circuit the continued recognition of the individual rights view of the Second Amendment remains far from certain. Posted at 20:53 by Howard Bashman

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"Chief Justice Rehnquist Has Surgery": The Associated Press is reporting that Chief Justice William H. Rehnquist had surgery today at Walter Reed Army Medical Center to repair a torn tendon he sustained when he fell and hurt his knee last Thursday. The article explains that if Chief Justice Rehnquist is unable to attend in person the U.S. Supreme Court's conference scheduled for tomorrow, he could lead the conference by telephone. Posted at 16:43 by Howard Bashman

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Mmm Mmm Mmm Mmm: The current issue of The Village Voice contains a piece entitled "Crash-Test Dummy: Bush Fronts Scalia for Chief Justice." (This post's title in memory of Crash Test Dummies.) Posted at 15:58 by Howard Bashman

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"Choose Life" license plates are becoming the equivalent of "Choose Litigation": Stateline.org has this report. Posted at 15:23 by Howard Bashman

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In case anyone forgot, the Sixth Circuit could really use some additional judges: I returned from lunch to find this email that had just arrived:

Hello! I'm a clerk for a judge on the 6th Circuit. Your post about the reams of paper showing up for the new Judge McConnell to read absolutely cracked me up. Over here, we're wondering if they can install an express chute from where a new judge is located when he or she is finally confirmed straight to Cincinnati. I was talking to a clerk of a senior judge who said her boss is at 125% case load.

Anyway, thanks for the blog. I adore it.

The Cincinnati-based Sixth Circuit is authorized to have a total of sixteen circuit judges in regular active service, but today it only has nine (and even after the recently-confirmed John M. Rogers takes the bench, the court will still have six vacancies). Posted at 14:17 by Howard Bashman

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In today's edition of The Wall Street Journal: Today's edition of The Wall Street Journal contains a very interesting article entitled "White House Counsel's Methods Outrage Military Legal Experts." According to the article, the "military experts" who are outraged at Alberto Gonzales' methods in "rewriting the laws of war" include "career Pentagon lawyers in the Judge Advocate General's Office" and "National Security Counsel legal advisers." Unfortunately, you need to be a subscriber to the Journal's electronic edition to access the article online. Posted at 14:12 by Howard Bashman

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Ninth Circuit overturns settlement of huge race discrimination in employment class action suit against Boeing: Today a divided panel of the U.S. Court of Appeals for the Ninth Circuit set aside the settlement of a class action suit alleging race discrimination and other claims against Boeing Company brought on behalf of a class of approximately 15,000 African-American Boeing employees. Circuit Judge Marsha S. Berzon wrote the majority opinion, in which visiting Senior Eighth Circuit Judge Donald P. Lay joined. Circuit Judge Stephen S. Trott dissented and would have upheld the settlement in its entirety.

Judge Trott's dissent explains, at its outset:

As they always do, my conscientious colleagues display a thorough and scholarly grasp of the issues that arise in the settlement of class lawsuits. With all respect, however, I see this settlement and the district court's approval of it in a different light. Thus, I respectfully dissent.

Three main worries, each of which in my view is just an illusion, appear to be driving the majority's decision to reverse the district court's approval of this consent decree: (1) the "possibility" that class counsel could have betrayed their clients in favor of their own fees; (2) that the "large differential" in the distribution of monetary awards between class representatives and certain identified class members, on one hand, and unnamed class members on the other, indicates something rotten in Denmark; and (3) that the district court inflated the $3.65 million value attached to the "largely precatory" injunctive relief. As I read this record, and as I shall attempt to demonstrate, these concerns have no foundation in fact or law.

You can access the court's ruling at this link. The opinion states that Philadelphia attorney and leading employment discrimination advocate Alan B. Epstein represented the objectors to the settlement, and today's ruling would appear to be a big victory for him and his clients.

Update: Later tonight, Jason Hoppin of The Recorder offers this report on the ruling. Posted at 13:36 by Howard Bashman

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A naked, highly intoxicated 110-pound female arrestee; male prison guards; a padded cell; and a restrainer board: The U.S. Court of Appeals for the Eighth Circuit today decided an appeal involving these facts. By a vote of 2-1, the panel held that the prison guards were entitled to qualified immunity on the arrestee's federal civil rights claim -- although the panel unanimously affirmed a $2,500 award in the arrestee's favor on a state law invasion of privacy claim. As a result of this ruling, the arrestee lost her right to collect her attorney's fees from the defendants. You can access the court's ruling at this link. Posted at 11:49 by Howard Bashman

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Elsewhere in today's newspapers: Today's edition of The Los Angeles Times reports here that "Calif. Court Limits Piracy Suits; State Supreme Court ruling on jurisdiction may set a precedent that could be followed by other states." And here the LATimes reports that "Court Fight Erupts Over Bid to Put Jury Talks on Camera; A Texas judge wants 'Frontline' to tape deliberations in a death penalty trial. Prosecutors are opposed to the idea."

The Boston Globe reports here that "Harvard Law School dean to step down in spring." And it's recommended that you get your mind out of the gutter before reading the first paragraph of this article:

A cease-fire was called yesterday in the ongoing feud between US Attorney Michael Sullivan and federal Judge Mark L. Wolf when Sullivan backed down and submitted to a public tongue-lashing from the judge.

Under the heading "Eighty percent of success is showing up," USAToday contains an article today entitled "Police lineups encourage wrong picks, experts say; Calls for reliability fuel push to show suspects one by one."

Finally, guest commentator Robert A. Levy addresses "Why civil libertarians are concerned" in an essay posted this morning at National Review Online. Posted at 10:52 by Howard Bashman

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Thou shalt not remove huge granite monument: Jonathan Ringel of the Fulton County Daily Report previews here the Eleventh Circuit's consideration an Alabama federal judge's recent ruling that requires the Chief Justice of Alabama's Supreme Court to remove a large granite monument to the Ten Commandments from Alabama's Judicial Building. The attorney for Chief Justice Roy Moore is already predicting victory in the Eleventh Circuit.

Relatedly, you can access here an interesting article about the legal debate surrounding if and when the Ten Commandments can be posted on government property. This article was published in the September-October 2002 issue of Liberty Online, a self-proclaimed "Magazine of Religious Freedom." Posted at 10:13 by Howard Bashman

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Just in time for the holidays: The Federalist Society emails to advise that it "now has an online store full of shirts, sweatshirts, mugs, and other items!" Although the online store (access here and here) is operated through CafePress, The Federalist Society did not follow law blogger Denise Howell's classic advice. Posted at 09:56 by Howard Bashman

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In the forecast: It appears very likely that "How Appealing" will receive its 300,000th page view at some point today, just six months and twenty days since this blog came into existence. Thanks everyone!

And in weather related news, the National Weather Service forecast for the town in which I live states:

.TONIGHT...SNOW...DEVELOPING BY MIDNIGHT. ACCUMULATION UP TO 4 INCHES POSSIBLE BY MORNING. LOWS IN THE LOWER 30S. NORTHEAST WINDS 5 TO 10 MPH.

.WEDNESDAY...SNOW TAPERING OFF IN THE MORNING. PARTIAL CLEARING IN THE AFTERNOON. TOTAL SNOW ACCUMULATION OF UP TO 6 INCHES POSSIBLE. HIGHS IN THE MID 30S. NORTH WINDS 10 MPH BECOMING NORTHWEST AND INCREASING TO 10 TO 20 MPH.

Must remember to bring home with me tonight some extra work to do in case of a five-day weekend. Posted at 06:41 by Howard Bashman

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In Tuesday's newspapers: Adam Liptak, in today's edition of The New York Times, has an article entitled "Inviting TV Into Jury Room in a Capital Case." In other news, you can access here a report on a conference on free expression and the arts at Columbia University last week that focused on new limits on artistic freedom in a high-tech culture. Benjamin Weiser reports on the perp walk in the age of wealthy corporate executives charged with criminal wrongdoing. Not only did John Rawls die recently (obituary here), but so did Eugene Rostow (obituary here).

In today's edition of The Washington Post, this report asks "Is Judge's Past Prologue in Cheney Case?" Posted at 06:37 by Howard Bashman

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Now available online at law.com: An article entitled "California Justices Find Web Site Is out of Reach"; Jason Hoppin reports on the case the Ninth Circuit took en banc last Friday (and you can access my summary of that case here); Jonathan Ringel reports that "11th Circuit Reverses Church Arson Convictions" (I previously discussed that ruling here); and for those willing to undergo the free registration necessary to access articles on law.com's Washington, DC site, you can access here Bruce Fein's review of John T. Noonan Jr.'s book critiquing the U.S. Supreme Court's federalism jurisprudence, and you can access here Evan P. Schultz's commentary critical of last week's ruling of the United States Foreign Intelligence Surveillance Court of Review. Posted at 23:45 by Howard Bashman

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"The reports of liberty's death are greatly exaggerated": Stuart Taylor Jr. offers a very sensible analysis of last week's ruling by the United States Foreign Intelligence Surveillance Court of Review. Posted at 21:24 by Howard Bashman

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Thanks SCOTUSblog! Today the Christian Broadcasting Network aired an interview that Pat Robertson conducted of Senator Orrin G. Hatch (R-UT). You can access a transcript of the very interesting interview here, under the headline "Will Democrats Filibuster Bush's Judicial Nominees?" Elsewhere, The Washington Post yesterday published Charles Lane's review of Kenneth W. Starr's new book, "First Among Equals." Compared to some of the other reviews that the book has received, Lane has some pretty favorable things to say about it. You can access three earlier reviews of the book via links available here, here, and here. Posted at 21:07 by Howard Bashman

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What do a Bridgestone tire and gangsta rap have in common? Adam Bonin provides the answer. Posted at 21:00 by Howard Bashman

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Texas trial judge says "Let's go to the videotape!" in juvenile death penalty deliberations, but appellate court responds "Not so fast!" A Texas state court trial judge was willing to allow the PBS program "Frontline" to videotape jury deliberations in the death penalty case about to get underway against a seventeen-year-old young man in Texas. Today, however, the Texas Court of Criminal Appeals -- that State's highest court in criminal cases -- said not so fast, The Associated Press reports here. Posted at 20:41 by Howard Bashman

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Sharply divided California Supreme Court decides anxiously awaited Internet jurisdiction case: c|net News.Com is reporting:

The California Supreme Court handed Hollywood's antipiracy efforts a setback Monday, ruling that a Texas resident who posted controversial DVD-cracking code online can't be sued in the Golden State.

The ruling, released by the court Monday, deals with just one part of Hollywood's multifaceted attack on DeCSS, a controversial bit of computer code that can assist in the copying of DVDs. The justices didn't address the legality of posting the software program online, saying only that Texas resident Matthew Pavlovich couldn't be sued in California for doing so.

"There is no evidence in the record suggesting that the site targeted California," the judges wrote in their majority opinion. But that didn't mean he couldn't be sued elsewhere, they noted. "Pavlovich may still face the music--just not in California," the court wrote.

Yoga aficionado Denise Howell, safely ensconced back in California after her recent trip to the Yale Law School bloggers conference, has this early report on the ruling, and she promises more coverage later. (And she's already delivered on that promise, twice.) You can access the California Supreme Court's ruling at this link. Associate Justice Janice Rogers Brown -- a jurist some have identified as a potential U.S. Supreme Court nominee -- wrote the majority opinion. Posted at 19:12 by Howard Bashman

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Political philosopher John Rawls has died: Today's edition of The Harvard Gazette contains this report that the author of "A Theory of Justice" died yesterday at the age of 81. Posted at 17:12 by Howard Bashman

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Supreme Court of Connecticut reverses $800,000 award in SIDS case: In a case that involves horribly tragic facts, today the Supreme Court of Connecticut reversed a $800,000 jury verdict awarded to the mother of a two-and-a-half-month-old infant girl who died from sudden infant death syndrome after a day care provider allowed the infant to nap on her stomach. The court ruled, in an opinion you can access here, that "expert testimony was required to assist the jury 'to understand the applicable standard of care and to evaluate the defendant's actions in light of that standard.'" Because plaintiff failed to introduce such expert testimony, the Connecticut Supreme Court reversed the jury verdict and ordered that judgment be entered in favor of the defendant day care provider. Posted at 16:39 by Howard Bashman

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Dean of Harvard Law School to step down at the end of this academic year: A press release that Harvard Law School issued today advises that "Robert C. Clark will conclude his service as Dean of Harvard Law School at the end of the 2002-03 academic year, he announced today." You can access Dean Clark's letter dated today declaring his intention to step down at this link. Posted at 15:06 by Howard Bashman

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Stuart Buck goes behind the scenes at the U.S. Supreme Court: And then he returns home and writes about what he saw in order to post it on his blog. Posted at 14:36 by Howard Bashman

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Second Circuit upholds preliminary injunction preventing sale of an allegedly copyright infringing Jewish prayerbook: Today the U.S. Court of Appeals for the Second Circuit affirmed the entry of a preliminary injunction that:

enjoins [the defendant] from disseminating a new version of Siddur Tehillat Hashem, a prayerbook widely used within the Lubavitch movement of Hasidic Judaism, pending resolution of [the plaintiff's] claim that [the defendant's] new version of the prayerbook violates [the plaintiff's] copyright in the original Siddur Tehillat Hashem by copying verbatim Rabbi Nissen Mangel's English translation of the Hebrew prayers, which appears in [the plaintiff's] Siddur Tehillat Hashem.

In so ruling, the Second Circuit rejected arguments that "the translation is not copyrightable" and that "the federal courts do not have jurisdiction to decide this dispute because adjudication of the dispute requires determinations of religious law and doctrine." Only five more shopping days till Hanukkah. You can access the Second Circuit's ruling at this link. Posted at 14:13 by Howard Bashman

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Dahlia Lithwick handicaps "the Supreme Court shuffle": In an essay just posted online at Slate, Dahlia Lithwick writes about how everyone else has been writing about whether the U.S. Supreme Court will soon be undergoing personnel changes now that Republicans are just about one month away from having control of both the White House and the U.S. Senate. She concludes by opining that Chief Justice William H. Rehnquist "won't let the curtain go down on him after the Lamest Term in History."

I certainly don't claim to have any special insight into Chief Justice Rehnquist's retirement plans, but I do know that the Supreme Court's merits docket could become a whole lot more interesting on December 2, 2002 if the Court grants review of a case challenging racial preferences in public law school admissions and of a case challenging criminal laws that prohibit homosexual sodomy. Posted at 12:00 by Howard Bashman

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FindLaw columnist says use the filibuster to block judicial nominees who are too conservative: FindLaw columnist Joanne Mariner has an essay today entitled "In Defense of the Filibuster." Posted at 08:43 by Howard Bashman

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In today's Los Angeles Times: Today's edition of The Los Angeles Times contains a profile of alleged dirty-bomber and enemy combatant Jose Padilla. Posted at 08:36 by Howard Bashman

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From the December 2, 2002 issue of The New Yorker: Jeffrey Toobin speaks with Linda Fairstein, the prosecutor who led the sex-crimes unit of the Manhattan district attorney's office, about recent developments in the Central Park jogger case. And Malcolm Gladwell answers the question, "What does 'Saturday Night Live' have in common with German philosophy?" Posted at 08:25 by Howard Bashman

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"Literally minutes of amusement!" Tom Tomorrow's cartoon this week about the war on terror and homeland security promises to provide "literally minutes of amusement!" See for yourself whether you agree. Posted at 08:21 by Howard Bashman

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In Monday's Washington Post: Monday's edition of The Washington Post contains an editorial calling on Congress next year to enact sensible, bipartisan tort reform measures. And a front page article entitled "GOP Looks To Move Its Social Agenda" explains:

Abortion rights will be a major battleground next year, too. Lott has promised a vote next Congress to outlaw a procedure that critics call "partial birth" abortion. The House can easily pass the ban on late-term abortions, and it appears Republicans should have the 60 Senate votes they need to follow suit and send it to the president.

Douglas Johnson, top lobbyist for the National Right to Life Committee, said an early head count shows at least 62 incoming senators will support the ban, which if enacted is destined for a Supreme Court challenge. Bush's plan to appoint many more conservative judges to the federal bench could pay dividends when abortion issues such as this reach the courts.

Republicans want to amend federal law to allow a person who violently harms or kills a pregnant woman to be charged for a separate offense of killing or harming the unborn child. This builds on the administration's efforts this year to classify a fetus as a human being worthy of health care coverage and embryos as "human research projects."

Many antiabortion activists believe there are two key preliminary steps to overturning Roe v. Wade: Solidly establish in law, government policy and the minds of voters that a fetus is a human being and, therefore, warrants equal protection; and get more conservative judges appointed, particularly to the Supreme Court.

Republicans also plan to press for legislation to make it a federal crime to transport minors from states with parental notification laws across a state line to obtain an abortion.

These provisions certainly will prove to be controversial, both among the general public and within the courts. Posted at 00:26 by Howard Bashman

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"Civil liberties watchdogs are yapping over nothing": So says this editorial from The Wall Street Journal. Posted at 19:24 by Howard Bashman

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Ring is lord of Nebraska's death penalty: Last June, the Supreme Court of the United States ruled in Ring v. Arizona that juries, rather than judges, must find beyond a reasonable doubt the facts necessary to sentence a criminal defendant to the death penalty. You can access my contemporaneous coverage of that ruling here. In response to that ruling, a number of States -- not just Arizona -- have had to alter their laws governing the roles of the trial judge and the jury in deciding whether a defendant will receive the death sentence.

Today brings news that Nebraska's Legislature has concluded rewriting that State's death penalty laws (see local newspaper coverage here and here), although as I mentioned the other day Nebraska has decided to remain the only State in the Nation where the lone method of imposing the death penalty is the electric chair. Posted at 17:18 by Howard Bashman

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Did I promise I'd have more to say about judicial activism? Indeed I did. And I will. In fact, I have found the topic so worthy of discussion that I am making it the subject of my December 2002 appellate column to be published in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, on Monday, December 9, 2002. Sometime before then, while I am drafting that column, I will be certain to discuss here some of the very thoughtful emails that I received in response to my post on this topic from earlier this month, entitled "'Judicial activism' -- easy to criticize, but hard to define and identify." If you would like to receive via email a copy of my appellate column in PDF format on the second Monday of each month -- the day the column appears in the newspaper -- there's a free and easy sign-up form that you can complete here. Posted at 15:42 by Howard Bashman

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The time for celebration is over: Today's edition of The Denver Post is reporting: "A box of legal papers arrived at professor Michael McConnell's office at the University of Utah law school last week - reams of filings for cases before the 10th U.S. Circuit Court of Appeals." Posted at 15:35 by Howard Bashman

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Some additional coverage of the Alabama Judicial Building Ten Commandments monument controversy: The issue of U.S. News and World Report that hits newsstands tomorrow contains an interview with Chief Justice Roy Moore, who arranged for installation of the Ten Commandments monument in the Alabama Judicial Building. Last Monday, of course, a federal district judge in Alabama ruled that the monument had to be removed because its presence gave rise to an Establishment Clause violation. For a somewhat different take on the controversy, you can access here an article entitled "Roy Moore is a true Christian statesman." The article comes from the Baptist Press News Web site, operated by the Southern Baptist Convention. Accompanying this article is a high resolution photograph of the monument. Posted at 11:48 by Howard Bashman

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"Admirers, critics feel strongly about Shedd: Some people see an honest, caring judge; others see troubling biases": Today's edition of The State, a South Carolina-based newspaper, contains a lengthy profile of Dennis W. Shedd, whom the U.S. Senate recently confirmed to serve on the U.S. Court of Appeals for the Fourth Circuit. Update: The State today also published a second article about Judge Shedd, entitled "Senate clashed on judge's record," and you can access that article here. Posted at 11:38 by Howard Bashman

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In Sunday's major newspapers: Today's edition of The Washington Post contains an editorial that supports President Bush's proposal to restore order to the process of nominating and confirming federal judges. In a front page article about the war on terror, The Post reports that "Material Witness Law Has Many In Limbo." And here's an article entitled "Ads, Interest Groups New Factors in State High Court Races."

Today's edition of The New York Times contains a front page article on the aftermath of this week's ruling by the United States Foreign Intelligence Surveillance Court of Review. On a related note, Adam Liptak has the lead piece in today's Week in Review section, and his article is entitled "In the Name of Security." Finally, Adam Cohen offers an editorial observer essay about The Federalist Society entitled "Hell Hath No Fury Like a Conservative Who Is Victorious."

In today's edition of The Los Angeles Times, U.S. Supreme Court correspondent David G. Savage reports on a case to be argued December 4, 2002 that, according to legal experts, "has the potential to reshape the law governing everyday encounters between police and the public."

Update: Adam Cohen's harshly critical editorial observer essay about The Federalist Society published in The New York Times today is full of debatable assertions, but one error in particular cries out for correction. He writes toward the end of his essay:

The search for fictive liberal enemies reached a loopy low on the convention's last day, when an archconservative federal appeals court judge, Laurence Silberman, accused William Rehnquist's archconservative Supreme Court of having a secret plan to declare the death penalty unconstitutional. In an opinion just last month, the court reiterated its view that capital punishment is constitutional even for 16-year-olds. [emphasis added]

In truth, there was no U.S. Supreme Court opinion issued "just last month" holding "that capital punishment is constitutional even for 16-year-olds." Rather, last month, over the dissent of four Justices, the Court refused to review on the merits an original writ of habeas corpus in which the petitioner was contending that the death sentence he received was unconstitutional because he was under the age of eighteen when he committed his offense. The Supreme Court's refusal to consider that petitioner's case on the merits is far different from an opinion affirmatively expressing a ruling on the question presented. Moreover, the U.S. Supreme Court ruling that upheld the constitutionality of sentencing sixteen- and seventeen-year-olds to death issued back in 1989. Posted at 10:12 by Howard Bashman

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"Republicans vow to move on judicial nominees": See this article from today's edition of The Washington Times. Posted at 10:04 by Howard Bashman

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Miami-based federal district judge "sues over Nazi theft of family fortune": Sunday's edition of The Miami Herald contains this report on the lawsuit that Miami-based U.S. District Judge Ursula Ungaro-Benages has brought in federal court seeking millions of dollars in damages. Posted at 00:54 by Howard Bashman

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Immigration judge orders deportation for alleged terror detainee whose hearings the Sixth Circuit ruled could not be closed to the press: The Associated Press is reporting that yesterday the immigration judge presiding over the removal hearing of Rabih Haddad, his wife, and three of their children ruled that they should be deported from the United States, rejecting their claim for political asylum. Whether the U.S. Department of Justice could prohibit press access to Haddad's deportation hearing was at issue in the widely-reported Sixth Circuit ruling (access here) released on August 26, 2002 holding that the USDOJ's blanket closure of deportation hearings for alleged terror-related detainees violated the First Amendment. Posted at 23:24 by Howard Bashman

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Don't get caught with too many sex toys in Texas: For those women who believe you can never be too thin, too gorgeous, or have too many sex toys, this news from the State of Texas will be of interest to you. An article published in Thursday's edition of The Longview (Texas) News-Journal reports that in Texas it is "illegal to 'wholesale promote' obscene materials or devices" and that "[t]he law allows investigat