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Tuesday, December 31, 2002
Third Circuit rules against federal government in criminal appeal involving bank fraud statute, perpetuating several circuit splits: A particularly distinguished three-judge panel of the U.S. Court of Appeals for the Third Circuit today issued an opinion that begins:The major issue in this appeal is a troublesome question concerning the correct construction of the federal bank fraud statute. We are called upon to construe the breadth of a statute on which the Courts of Appeals are divided, and on which our own court has not spoken definitively.In a unanimous opinion written by Senior Circuit Judge Max Rosenn, in which Chief Judge Edward R. Becker and Circuit Judge Jane R. Roth joined, the court confronted the precise question whether "the federal bank fraud statute require[s] that the defendant intend to cause the bank a loss and that the defendant make a material misrepresentation to the bank." Under the unusual but apparently recurring facts of this case, the bank was not exposed to any risk of loss because, even though the perpetrator took the victim's funds via checks that the victim had made payable to the perpetrator or to "cash," the victim had no ability to argue successfully that the bank should not have honored those checks, and the bank therefore was exposed to no risk of loss due to the perpetrator's actions. In an opinion that relies heavily both on legislative history and on principles of federalism, the Third Circuit ruled that Congress did not intend 18 U.S.C. sec. 1344(2) to reach the conduct that the government charged as bank fraud. Rather, the Third Circuit concluded, the crime was one perpetrated against the depositor, and that crime was subject to prosecution under state law. The Third Circuit's decision observes that it resolves against the government at least two questions arising under the bank fraud statute that were already the subject of circuit splits. The Solicitor General's Office will undoubtedly be taking a close look at today's Third Circuit ruling to decide whether to request rehearing en banc in the Third Circuit (which I view as unlikely to be obtained) or review on certiorari in the Supreme Court of the United States (which should be quite willing to hear an important criminal case decided against the government presenting two longstanding circuit splits). Posted at 23:50 by Howard Bashman Judge Posner issues opinion noting "several million users of 'recreational' drugs in this country": Today the U.S. Court of Appeals for the Seventh Circuit decided an appeal in which the criminal defendant was challenging the legality of a search warrant. Although the court affirmed the defendant's conviction, it too expressed concern about the legality of the warrant, which was issued to authorize a search of a residence for evidence of drug dealing. As Circuit Judge Richard A. Posner's opinion for the unanimous three-judge panel explains: [W]e are left with a very thin case for a warrant to search for evidence of drug dealing as opposed to drug use. The ratio of drug users to drug dealers is very high, so that if this warrant is lawful, the implication is that any hostile neighbor can report a person as a drug dealer and if the police look in his garbage and find that he is among the several million users of "recreational" drugs in this country the police can search his house for evidence that he is a dealer even though they have no reason to think that he is one.You can access here the complete opinion. Posted at 23:27 by Howard Bashman Was the First Circuit too kind or the trial court too harsh? A ruling that the U.S. Court of Appeals for the First Circuit issued today raises this very question. The appellate court's opinion begins: Plaintiff-appellant Heidi Crossman appeals from the district court's dismissal of her complaint for failure to prosecute. The district court dismissed Crossman's claim because of William P. Boland's, her counsel's, failure to appear for the initial scheduling conference. Because we conclude that the district court abused its discretion in meting out this harsh sanction, we reverse and remand the case to the district court for further proceedings.You can access the complete opinion at this link. Posted at 23:16 by Howard Bashman A win for Coke equals a loss for Pepsi: Today the U.S. Court of Appeals for the Second Circuit finally got around to posting at its Web site a decision issued one week today that, by a vote of 2-0, affirmed the dismissal on summary judgment of PepsiCo's antitrust action against Coca-Cola. You can access the per curiam ruling at this link. Why did only two judges participate in the panel's ruling? Chief Judge John M. Walker, Jr., originally a member of the three-judge panel, recused after hearing oral argument. The remaining two judges on the panel -- who prefer to drink RC Cola and Jolt Cola, respectively -- were able to issue the ruling as a quorum of the panel since they agreed on the result. Posted at 23:12 by Howard Bashman Before we ring in 2003: Tonight at the fabulous "How Appealing" homestead, another mellow New Year's Eve. You see, when you have a child of a certain age -- say on the verge of turning eight -- spending a glitzy holiday night out on the town just isn't as easy as it once was. Plus, shouldn't there be a law against having these holidays on a Wednesday? But do not despair. The adults have had the pleasure of watching the film "Tape" on, um, tape, since the DVD copy wasn't available. It was an interesting film that garnered some understandably good reviews, available here (NYTimes-Stephen Holden) and here (Ebert). Now that enthusiasm and sobriety coexist in the waning moments of 2002, you can look forward momentarily to a few more blog entries summarizing several additional interesting federal appellate decisions that issued today. Posted at 22:58 by Howard Bashman "Hershey's Ordered To Pay Obese Americans $135 Billion": The Onion has this report. Posted at 18:09 by Howard Bashman "Texas Court Upholds Abortion Fund Limits": The Associated Press offers this report about a ruling issued today by the Supreme Court of Texas. As the AP article explains at its outset, "The state is not constitutionally obligated to pay for abortions for poor women who may have health complications from their pregnancy, the Texas Supreme Court ruled Tuesday." The court's ruling was 8-0 with Justice Deborah G. Hankinson not participating. Posted at 16:39 by Howard Bashman "Anti-Abortion Plates 'Unconstitutional'": The Associated Press has this report from South Carolina. Posted at 16:35 by Howard Bashman Fifth Circuit decides interesting and important Internet defamation case: A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit today issued an important decision concerning where a plaintiff may bring suit alleging defamation over the Internet. The opening paragraphs of today's decision, which was written by Circuit Judge Patrick E. Higginbotham, do a very nice job of explaining the pertinent facts: Hart G.W. Lidov, an Assistant Professor of Pathology and Neurology at the Harvard Medical School and Children's Hospital, wrote a lengthy article on the subject of the terrorist bombing of Pan Am Flight 103, which exploded over Lockerbie, Scotland in 1988. The article alleges that a broad politically motivated conspiracy among senior members of the Reagan Administration lay behind their wilful failure to stop the bombing despite clear advance warnings. Further, Lidov charged that the government proceeded to cover up its receipt of advance warning and repeatedly misled the public about the facts. Specifically, the article singles out Oliver "Buck" Revell, then Associate Deputy Director of the FBI, for severe criticism, accusing him of complicity in the conspiracy and cover-up. The article further charges that Revell, knowing about the imminent terrorist attack, made certain his son, previously booked on Pan Am 103, took a different flight. At the time he wrote the article, Lidov had never been to Texas, except possibly to change planes, or conducted business there, and was apparently unaware that Revell then resided in Texas.In today's decision, which you can access here, the Fifth Circuit affirmed the trial court's dismissal, holding that neither Lidov nor Columbia University was subject to personal jurisdiction in Texas. Posted at 15:37 by Howard Bashman "Bush Names State Supreme Court Justice": The Associated Press engaged in a bit of year-end hijinks when it issued an article bearing this headline across its news wire today. Of course, the article reports on a development from the State of Florida, and the Bush in question is Florida Governor Jeb Bush. Both The AP article and this article from The Miami Herald note that the Florida Supreme Court justice selected for appointment yesterday "had a Web site promoting his candidacy for the high court." Hmm, why didn't I think of that? It would sure be a whole lot easier explaining what a fan of judicial restraint I am than it is trying to present the most interesting appellate rulings from throughout the nation. Posted at 15:08 by Howard Bashman Ninth Circuit grants rehearing en banc to decide if a federal magistrate judge may accept a guilty plea in a felony case with the defendant's consent: In an opinion issued June 28, 2002, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit answered that question in the affirmative, so long as a federal district judge conducts de novo review of the record to ensure that a proper waiver of the defendant's rights have occurred. You can access today's order granting rehearing en banc at this link. Posted at 15:03 by Howard Bashman Ninth Circuit affirms decision invalidating requirement that trustees of Office of Hawaiian Affairs be "Hawaiian": Today a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that the State of Hawaii's constitutional and statutory requirements that the trustees of the Office of Hawaiian Affairs be "Hawaiian" violate the Fifteenth Amendment to the U.S. Constitution and Section Two of the federal Voting Rights Act. According to today's opinion, the Office of Hawaiian Affairs exists to address the needs of the aboriginal class of people of Hawaii, which involves managing and administering the property and funds, including those from the public trust, that have been allocated for the betterment of the conditions of "native Hawaiians" and "Hawaiians," and formulating policies, programs, and activities relating to the affairs of native Hawaiians and Hawaiians. A state statute defines the term "Hawaiian" to mean "any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have continued to reside in Hawaii." You can learn more about the Office of Hawaiian Affairs at this link. Posted at 14:22 by Howard Bashman Seventh Circuit today affirms decision refusing to stay Secretary of Treasury's order blocking assets of Illinois charity alleged to be supporting terrorism: Circuit Judge Frank H. Easterbrook wrote the majority opinion, in which Senior Circuit Judge Richard D. Cudahy and Circuit Judge John L. Coffey joined. Judge Cudahy also wrote a separate concurring opinion. Judge Easterbrook's opinion for the court concludes: The central question now becomes whether the evidence supports the agency's belief that GRF uses its assets to support terrorism. That question should be addressed and resolved expeditiously in the district court. The judgment denying GRF's request for an injunction that would compel the release of its assets while that issue remains open is affirmed.You can access the Seventh Circuit's decision in its entirety at this link. Posted at 12:17 by Howard Bashman Now available online: Yesterday's decision of the U.S. District Court for the District of Columbia holding that thirty-two members of the U.S. House of Representatives lack standing to challenge in federal court President Bush's unilateral withdrawal, without the approval of Congress, from the 1972 Anti-Ballistic Missile Treaty is now available online at this link. You can access here my coverage of that ruling from yesterday evening. Posted at 09:30 by Howard Bashman In Tuesday's newspapers: The New York Times reports here that "Defense in Sniper Case Wins Access to Police Interviews." The Washington Post contains a similar report that you can access here. Today's edition of The Post also contains an editorial entitled "The Stakes for Liberty." From the State of Washington comes the sad news that the State's first female Chief Justice, who had since retired from the Supreme Court of Washington State, has died at the age of sixty. You can access coverage here from The Seattle Times and here from The Seattle Post-Intelligencer. Both newspapers mention that President Clinton had considered appointing Barbara Durham to the U.S. Court of Appeals for the Ninth Circuit. In news of importance to many California residents, The Los Angeles Times is reporting that "A state appeals court in Sacramento on Monday ruled that the California Coastal Commission violates the state Constitution by allowing the Legislature broad authority to appoint and remove a majority of the commissioners, who wield executive powers." Today's edition of The Boston Globe contains two articles about a misconduct hearing against Superior Court Judge Maria I. Lopez. Here you can access an article entitled "Lopez warns inquiry will have 'chilling effect,'" and here's an article entitled "Media pressure on judges often starts with prosecutor." In international appellate news, you can access here (free registration required) a report from The Jerusalem Post that begins, "The High Court of Justice on Monday rejected a petition by eight reservists who have refused to serve in the West Bank and Gaza Strip on moral grounds, declaring that the defense minister had the right to order them to serve and to punish them if they refused." Posted at 07:57 by Howard Bashman Monday, December 30, 2002
"Rehnquist Lobbies for Judicial Pay Raise": Gina Holland of The Associated Press has this report, which describes a recent personal appeal to President Bush. Of course, it wasn't too long ago that then-Governor Bush prevailed in an appeal of his own to the Supreme Court of the United States.
Posted at 22:51 by Howard Bashman
Harken back to a time when sand and gravel qualified as "valuable minerals" in Nevada: Today the U.S. Court of Appeals for the Ninth Circuit issued a ruling that explains: In 1910, only 81,875 people lived in Nevada. The federal government owned most of the land in Nevada. The lack of a tax base held back development of the state's infrastructure. The Homestead Acts, a successful tool for development in other western states, had failed to populate Nevada because of the lack of water available for agricultural cultivation.Those wishing to learn more about Nevada history can access the Ninth Circuit's ruling at this link. Posted at 22:31 by Howard Bashman The First Circuit keeps the expletives deleted: This evening's final First Circuit offering involves a decision issued today regarding a high-level employee who had signed an employment agreement that prohibited him from using "vulgar or unprofessional language on company premises or at any time while engaged in the performance of company duties." Thereafter, according to the opinion, the employee was quoted as saying not only "[name deleted] is going to f--- you" but also: "[G]et off your f---ing ass"; [name deleted] "should be in that f---ing estimating department" drumming up business, instead of planning his office decor; [name deleted] is "full of bull----," and [name deleted] is a "f---ing ---hole."In its decision, the First Circuit affirmed the trial court's dismissal of the employee's claims for wrongful termination of employment. Readers who desire arguably intemperate yet undeleted language will have to content themselves with this earlier post mentioning an item from the brand new issue of The New Yorker magazine. Posted at 22:15 by Howard Bashman First Circuit finds U.S. Supreme Court too confusing to follow: Back on June 10, 2002, the U.S. Supreme Court issued its ruling in McKune v. Lile. As I explained that night in a post you can access here: STILL IN KANSAS: Today's most interesting decision further proves that Kansas remains on the cutting edge of dealing with criminals who may be suffering from mental illnesses or defects. Today the Court finally decided what as of yesterday had been its oldest undecided case, McKune v. Lile, No. 00-1187 (U.S. June 10, 2002).In an opinion dated December 24, 2002 that the U.S. Court of Appeals for the First Circuit posted to its Web site today, the First Circuit had the pleasure of revisiting a decision that the U.S. Supreme Court had remanded for reconsideration in light of the result in McKune. Not surprisingly, the First Circuit panel ruled that the Supreme Court's "decision" in McKune "provided no clear guideposts" as to how the case now on remand should be resolved. The First Circuit therefore simply adhered to its earlier ruling on the basis of its earlier reasoning. Posted at 22:00 by Howard Bashman Armed robbery straight from Maine, followed by purely improper jury argument by the federal government: In an opinion that bears today's date, the U.S. Court of Appeals for the First Circuit upheld a defendant's federal armed robbery conviction, but the appellate court directed some harsh criticism toward the prosecutor's opening statement. The following passages from the prosecutor's opening statement caused the First Circuit considerable consternation: We are fortunate in the state of Maine, particularly in the part of Maine that most of us come from, to live lives that are relatively free from random acts of violence. We don't have bars on our windows. We don't fear walking at night. And as a rule, our homes and our workplaces are safe havens from random crime.After counsel for the defendant objected to these aspects of the prosecution's opening statement, the federal trial court advised the jury: Let me just elaborate on that for a little bit. Number one, everybody who's arrested has a right to remain silent, and you are not permitted to use the fact that someone did or did not remain silent as any element of guilt. You are not to use that . . . to find any issue of guilt in this case, and I instruct you in that regard. Any finding of guilt must be based solely upon the evidence in this case and not that factor.The First Circuit ruled that the government's appeals to the jury's passions and prejudices were improper and that the government acted improperly in commenting on the defendant's post-arrest silence. Nevertheless, despite chiding the government -- "We must acknowledge our dismay that any prosecutor in this circuit could apprise a jury in an opening statement that a defendant had chosen not to talk to the police. It is difficult to imagine a more fundamental error. We hope that we will not see this error again by any prosecutors in our circuit" -- the First Circuit ruled that none of these errors, separately or cumulatively, constituted grounds for reversal. Posted at 21:42 by Howard Bashman Pure insubordination straight from Maine: The U.S. Court of Appeals for the First Circuit posted a slew of decisions to its Web site today, some brand new and some nearly a week old. Several are worthy of note. For starters, in this decision, which spawned an opinion from each of the three appellate judges on the panel, the court ruled 2-1 that a federal district judge properly upheld Poland Spring's discharge for insubordination of a former employee, thereby setting aside the conclusion of a collective bargaining arbitrator that the employee should only be suspended, not fired. Circuit Judge Sandra L. Lynch dissented, arguing that the First Circuit's law appeared contrary to binding U.S. Supreme Court case law. Chief Judge Michael Boudin, in a concurring opinion, seemed sympathetic to the dissenting opinion's views, but explained that rehearing en banc was necessary to achieve the result the dissent favored. Stay tuned to see whether rehearing en banc in fact occurs. Posted at 21:28 by Howard Bashman "Supreme speculation: Bush should avoid a nominee with an agenda." Today's edition of The Pittsburgh Post-Gazette contains an editorial bearing this headline. Posted at 21:10 by Howard Bashman "Court Rejects Lawmakers' ABM Challenge": The Associated Press is reporting that District Judge John D. Bates of the U.S. District Court for the District of Columbia ruled today that thirty-two members of Congress who wanted to stop President Bush's withdrawal from the 1972 Anti-Ballistic Missile Treaty "lacked standing to bring the case, and the withdrawal from the treaty was a political matter, not judicial." Judge Bates is the same jurist who recently ruled that the Comptroller General of the United States could not bring suit against Vice President Dick Cheney to require the disclosure of information relating to the President's decision-making on national energy policy. One presumes that a docket full of much more mundane matters exists to keep Judge Bates busy on those days when he is not dismissing these headline-grabbing cases at their outset. Posted at 19:08 by Howard Bashman "Supreme Court Intervenes in DVD Dispute": Gina Holland of The Associated Press offers this report. Meanwhile, here at the spacious "How Appealing" estate, the only DVD dispute involves general perplexity over why it sometimes takes Netflix so long to receive the DVDs I've mailed back to it. Posted at 19:04 by Howard Bashman On deck for tonight at "How Appealing": Although today may be New Year's Eve eve, nevertheless a bunch of interesting federal appellate decisions have issued. Regrettably, I had the pleasure once again today of spending most of the day in a conference room with other attorneys. But tonight I will be sure to bring you news of today's most noteworthy and interesting rulings. So stay tuned. Posted at 17:28 by Howard Bashman "The Appellative Court -- The Real Jack Ass": Apologies in advance to this blog's more sensitive readers, but this post's title is taken verbatim from a Talk of the Town item that appears in the January 6, 2003 edition of The New Yorker magazine. In a development that could lead the Overlawyered Web site to conclude that its work is achieving results, The New Yorker reports that "an electrical lineman in Montana named Jack Ass" has been unable to find a lawyer to represent him in his lawsuit against Viacom, which is responsible for "the MTV show 'Jackass.'" So no lawyer in America will represent the plaintiff in the lawsuit Jack Ass v. Jackass? I don't know whether to feel proud, or disgusted that the news is worthy of such mention. Update: Courtesy of The Smoking Gun Web site, you can access a copy of the plaintiff's pro se affidavit in support of his complaint at this link. Posted at 17:07 by Howard Bashman "Sniper Suspect to Get Copy of Statements": The Associated Press offers this report concerning a development today in the case of teenage sniper suspect John Lee Malvo. Posted at 16:20 by Howard Bashman "TO KILL OR NOT TO KILL: Coming to terms with capital punishment." Attorney and author Scott Turow has a lengthy essay bearing this title in the January 6, 2003 edition of The New Yorker magazine. Posted at 10:15 by Howard Bashman "What if Satan were a retiring Senator?" You can access the latest installment of the cartoon "Tom the Dancing Bug" at this link. (Thanks to the author of the "Statutory Construction Zone" blog for the pointer via email.) Posted at 08:55 by Howard Bashman Elsewhere in Monday's newspapers: The Los Angeles Times contains an article by its U.S. Supreme Court correspondent, David G. Savage, entitled "Bush Ally Is Top Contender for Nomination to Supreme Court; If a vacancy occurs as anticipated, Alberto Gonzales could become the first Latino justice." You can access here an article entitled "A Spirited Debate Over DUI Laws: The government's effort to compel states to lower blood-alcohol limits encounters resistance. A senator in Iowa calls the policy 'blackmail.'" The LATimes offers a front page article entitled "The Old South, Up North; Milwaukee is the most segregated metro area, data show. Its black residents face glaring inequities in income, schools and home loans." And you can access here an article that bears the headline "A Grieving Dad Takes His Own Vengeance: After his son was beaten to death by white supremacists, a Phoenix man is hunting down the alleged killers. He has police support." The Chicago Tribune today contains an article entitled "Sodomy laws face high court scrutiny." Chicago's other major daily newspaper, The Chicago Sun-Times, reports here that "428 law professors from across the country" have signed a letter to the Governor of Illinois "informing him he would be on solid legal footing if he were to issue a blanket commutation to all the prisoners" currently on death row in that State. Which, of course, simply raises the question -- How many law professors are there in the United States? A whole lot more than 428, I'd hazard to guess. This morning's final item brings very sad news. The Providence Journal reports in an article you can access here: Rhode Island Supreme Court Justice Victoria Santopietro Lederberg died unexpectedly of a massive heart attack yesterday morning at home in Providence. She was 65.You can access the Supreme Court of Rhode Island's official Web page at this link. Posted at 08:30 by Howard Bashman In Monday's newspapers: Today's edition of The New York Times contains William Safire's annual office pool for the year ahead. One entry pertains to the U.S. Supreme Court. Charles Fried has an op-ed on the McCain-Feingold court challenge entitled "A Campaign Law That Curbs More Than Contributions." Therein, Fried incorrectly refers to the three-judge district court panel that currently has the challenge under advisement as "a special appeals court." And here you can access an article entitled "Glass Panes and Software: Windows Name Is Challenged." The Washington Post runs a front page article entitled "A Ban on Hate, or Heritage? Ga. School Divided Over Confederate-Themed Shirts." Meanwhile, on page A2 you can access an article entitled "Civil Rights Groups Renew Drive for Agenda in Congress." In an editorial entitled "Microsoft Back in Court," The Post writes about the ongoing dispute between Microsoft and Sun Microsystems. Finally for now, a new year must be just around the corner, because Monday's edition of The Christian Science Monitor contains an article entitled "New laws extend from drivers to dentists; Security and pocketbook issues underlie many of the state laws going into effect in the new year." Posted at 00:19 by Howard Bashman Sunday, December 29, 2002
2002 -- The year in retrospect: On January 1, 2003, this blog will take a look back at the year 2002, or at least that large portion of 2002 during which "How Appealing" was in existence. After all, why should the established media get to keep the meaningless fun of a year-end retrospective to themselves?
Posted at 23:34 by Howard Bashman
A reader expresses another point of view about a recent Seventh Circuit stay of deportation decision: On Friday, in a post you can access here, I wrote: Seventh Circuit grants stay of removal to ensure that a three-year-old U.S. citizen is not placed at risk of female genital mutilation in Nigeria: If anyone questions why federal appellate judges are often exasperated by the manner in which the Immigration and Naturalization Service conducts its removal proceedings, today's sixteen page per curiam stay ruling of the U.S. Court of Appeals for the Seventh Circuit is a must-read.Later that night, I received the following email from an employee on the staff of a large daily newspaper located on the West Coast: I love your blog.This reader and I do agree on at least one thing, which is that upcoming developments in this case will certainly be worthy of attention. Posted at 23:24 by Howard Bashman Then there are readers who simply write in to say nice things: First of all, those readers who have recently emailed about non-precedential federal appellate decisions, do not despair. I plan to feature here a whole bunch of emails relating to that subject matter quite soon, but not tonight. But now, my chance to say thanks to those who have written in recently to say nice things about "How Appealing." Here's a sampling: Like everyone else, I love your blog and can't get through a work day without it! (are you getting tired of hearing unending praise!?) You really do deserve every bit of it.A law clerk to a federal appellate judge writes: Some combination of Judge [name deleted] and one of my coclerks turned me on to the blog. I'm pretty sure all five ([judge] plus clerks) of us read it regularly, and we've converted most of the [other federal appellate judge's name deleted's] clerks around the corner. I especially like it because I'm not quite the scholar that some of my coclerks are so a Reader's Digest version of the landscape is exactly what I need. Your site, NYTimes, and OpinionJournal's Best of the Web are my daily required reading. I do worry, though, that you are too selfless in your dedication to the blog, given that you are also a successful attorney and have a family. Do you sleep?A law professor recently emailed: Happy New Year, and keep up the good work! I don't know how you do it - I barely find time to go to all of the interesting links you flag - but you have become the single most valuable Web resource for anyone who tries to keep up with what's going on in the nation's appellate courts.And these are just the emails that have arrived since Friday, December 27th. One of the ways I become aware of interesting developments is from this blog's readers, who email to make sure that news likely to be of interest to the readership of "How Appealing" doesn't escape my attention. And for those emails I remain most thankful. Posted at 22:29 by Howard Bashman Readers answer the call for recommendations concerning the best barbeque Kansas City has to offer: Just two days ago, I wrote in a post you can access here that I would soon be heading to Kansas City, and, "[b]ecause I've never been to K.C. before, I'd certainly welcome recommendations concerning the town's best barbeque restaurant." Once again, the amazing readers of "How Appealing" did not disappoint. Moreover, my mention of barbeque on Friday started a blogosphere trend, causing Glenn Harlan Reynolds to mention it on Saturday morning, and then the blog known as "Armed Liberal" tried to get in on the act shortly thereafter. Without any further ado, here's a sampling of the many emails readers kindly sent in response to my inquiry: Just finished a clerkship (last Sept 02) with Judge [name deleted] of the 8th Circuit and was a transplant to KC from St. Louis. So, I do have some tips.Another reader writes: Calvin Trillin is right -- Arthur Bryant's is the best. Gates is also tremendous and, if you want a more upscale BBQ experience, go to Fiorella's Jack Stack just north of Union Station. I'd opt for Bryant's at lunch, with Jack Stack for dinner. Rosedale is horribly overrated. Oklahoma Joe's is a good lunch spot, but inconvenient.More advice: Calvin Trillin is right. Without a doubt, the best place to go for BBQ in Kansas City is Arthur Bryant's. The sauce is fantastic, and the atmosphere of the restaurant is what a BBQ joint should be. I give you this advice as someone who grew up in Kansas City. I recommend the short-end ribs, although anything you get there is heavenly.An email bearing the subject line "Arthur Bryant's BBQ" states: We were taken there by friends during a brief visit to KC last summer. It was lunchtime on a weekday. The place is an undistinguished storefront in a run-down neighborhood. The decor is strictly linoleum, plus photographs of various celebrities dining there over the years. The line for food stretched out the front door and down the block. When we finally got our barbecue, it was ambrosially good.Someone who no longer lives in Kansas City writes: I love your web site. Saw your comments about Kansas City BBQ. I lived in Kansas City for most of my life and as I have traveled around the country since leaving there in 1996 I have yet to find BBQ, which I define as brisket, that compares to Kansas City's best. Whenever I get back to KC I always stop by Bryant's to get an order to take back with me on the plane.An attorney who practices in Salem, Oregon emails: Arthur Bryant's is okay -- touristy, like visiting Times Square and saying you've experienced New York. For my money Gates BBQ is the best in town. Absolutely the best I've ever had, and that includes some very good BBQ all over the country and my back yard. Gates also has a remarkable and entertaining atmosphere that must be seen to be believed. Be sure to grab some sauce in bottles to take home.Those looking for excellent barbeque in New York City (of all places!) will find this email to be of interest: As a Mississippi boy who's found the best barbecue of his life in---gasp---Times Square, I pass along Virgil's BBQ's K.C. picks:A longtime reader of "How Appealing" who works in Kansas City emails: As a resident of Kansas City, I'd like to prospectively welcome you to our fair town. (You may have a different idea about how fair it is after you finish your business.)Finally, a law professor who clerked at the U.S. Supreme Court and who now teaches at a law school located within the friendly confines of the U.S. Court of Appeals for the Seventh Circuit sends along this advice: My wife is a Kansas City native (well, Overland Park). She worked for several years at Hayward's Pit BBQ out there. It's on Antioch and College (around there), deep in the 'burbs. The sauce is fabulous.Thanks to everyone who responded to my request for advice, and even though I've just returned home from a dinner celebrating the birthday of my wife's ninety-three-year-old grandfather, I'm almost hungry again just from reading these recommendations. Posted at 21:39 by Howard Bashman "2003 Will Be Big Year for Supreme Court": Gina Holland, who covers the U.S. Supreme Court for The Associated Press, has this report. (Unlike what you might expect, "Associated Press" is pronounced -- oh, never mind!) Posted at 17:07 by Howard Bashman In Sunday's newspapers: Sunday's edition of The New York Times contains a Week in Review article entitled "The Republicans Try to Redefine Civil Rights." An editorial on the same general subject matter is entitled "Up From the Southern Strategy." You can access here a Week in Review article entitled "Limiting Lawsuits, the Texas Way." And here's an article captioned "Freed From Prison, but Still Paying a Penalty." The Washington Post reports here that "GOP Plans New Caps on Court Awards; Piecemeal, Republicans Have Limited Lawsuits Against Some Businesses." In the Post's Sunday Outlook section, you can access op-eds: concerning lawsuits against McDonald's for allegedly making people fat; addressing whether the G.O.P. has a problem with how it views women; and in which George F. Will looks at the U.S. Supreme Court's upcoming consideration of a case involving campaign finance reform. The Los Angeles Times contains an editorial entitled "Do Justice at Guantanamo." The newspaper also offers an op-ed by Law Professor Scott D. Gerber about Justice Clarence Thomas entitled "The Strong, Silent Supreme Type." Gerber is the author of a book that analyzes Justice Thomas's jurisprudence. You can access here an article entitled "Bid to Reform Consumer Act Gains Steam; Assemblyman, trial lawyers call for change in law that businesses charge has made them victims of extortion." And here's an article entitled "Cities Leery of 'Megan's Law' Web Site; County's version gives only a general idea of where sex offenders live. For details, people must then visit the Sheriff's Department." Last but not least, The Boston Globe today contains a very interesting article about the federal death penalty, why so many federal district judges seem to oppose it, and whether a criminal defendant facing charges that subject him to the federal death penalty can escape death by pleading guilty even in the absence of a plea agreement in which the federal government agrees not to seek the punishment of death. Posted at 09:12 by Howard Bashman Saturday, December 28, 2002
Available online from The Village Voice: Columnist Nat Hentoff has an essay about Yaser Esam Hamdi entitled "A Citizen Shorn of All Rights."
Posted at 23:18 by Howard Bashman
Let the predictions for 2003 begin: National Review Online yesterday posted a multi-contributor symposium of predictions for the new year. Hugh Hewitt's predictions included the following: There will be two retirements from the U.S. Supreme Court in 2003: Chief Justice Rehnquist and Justice O'Connor. The president will nominate Justice Scalia to replace the retiring chief, and will nominate California Supreme Court Justice Janice Brown and recently confirmed judge of the United States Court of Appeals for the D.C. Circuit Miguel Estrada to the two vacancies. Both will be confirmed by comfortable margins.You can access the entire symposium at this link. Posted at 18:47 by Howard Bashman Thanks to all who have written with kind words about the blog redesign: The prior blog template for "How Appealing," featuring the colors green, light blue and orange, is one of the default templates that Blogger offers, and it was becoming, how shall I say, much more popular than it had once been among brand new law bloggers. The new template for "How Appealing" simply employs different colors for the title and left-hand column of the blog and for links in the blog's text. Thanks to all who have written to praise the redesign, including Dahlia Lithwick -- who emailed to say "LOVE the blue b/t/w. Looks so groovy." -- and the author of TalkLeft, who had this to say. Posted at 17:20 by Howard Bashman Justice Sandra Day O'Connor could become the first female member of the Augusta National Golf Club: Denise Howell has all the details in a post you can access here. Posted at 17:06 by Howard Bashman Tonight on C-SPAN's "America and the Courts": Tonight's episode of C-SPAN's fine program "America and the Courts" features an address by Associate Justice Stephen G. Breyer of the Supreme Court of the United States delivered on September 8, 2002, as part of Boston Charter Day, the anniversary of Boston's founding. Justice Breyer talks about the eight Massachusetts judges who have previously served on the U.S. Supreme Court. Breyer is the ninth Massachusetts justice to have served on the Court. You can access a list of all 108 people to have served on the U.S. Supreme Court at this link. If you miss tonight's broadcast on television, you can access here a Web feed of the program beginning sometime next week. Posted at 16:48 by Howard Bashman In Saturday's newspapers: In today's edition of The New York Times, reporter Adam Liptak has an article entitled "Court Dictates How to Spend an Award." Liptak's article reports on a recent decision (Microsoft Word document ) of the Supreme Court of Ohio, which I first mentioned here. The Washington Post contains a wire service article reporting that the man whose case led the U.S. Court of Appeals for the Sixth Circuit to strike down the INS's order closing to the press and public deportation proceedings in so-called "special interest cases" has appealed his order of removal. The Post also contains an article entitled "Dissent in Sheinbein Case Has Md. Lawyers Talking; Sending Son to Israel Backed as 'Forum Shopping.'" The article reports on a recent ruling by the Court of Appeals of Maryland -- that State's highest court -- in which the opinion's headnote states, "Disbarment is warranted for an attorney who violated MRPC 8.4(b) and (d), given the attorney’s egregious conduct which was both criminal in nature and prejudicial to the administration of justice, which included assisting a known murder suspect in absconding from the United States." Finally for now, The Los Angeles Times contains an article entitled "Court Backs Muslim Inmates; Appellate panel says they can't be disciplined for attending prayer service and that beards grown for religious reasons can't be banned." I first reported on yesterday's ruling by the U.S. Court of Appeals for the Ninth Circuit in a post you can access here. Posted at 10:19 by Howard Bashman Friday, December 27, 2002
Tenth Circuit announces standards that apply when someone who has pleaded not guilty by reason of insanity to threatening the President seeks release from civil confinement: You can access today's ruling of the U.S. Court of Appeals for the Tenth Circuit at this link.
Posted at 21:00 by Howard Bashman
Seventh Circuit grants stay of removal to ensure that a three-year-old U.S. citizen is not placed at risk of female genital mutilation in Nigeria: If anyone questions why federal appellate judges are often exasperated by the manner in which the Immigration and Naturalization Service conducts its removal proceedings, today's sixteen page per curiam stay ruling of the U.S. Court of Appeals for the Seventh Circuit is a must-read. Posted at 16:04 by Howard Bashman Now you see it, now you don't: On November 13, 2002, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a for publication per curiam decision in an appeal that challenged the parade permit scheme of Santa Barbara, California. The panel affirmed the district court's determination of mootness regarding a parade scheduled to occur in 2001 but vacated the dismissal to allow the plaintiffs to amend their complaint to seek relief concerning parades scheduled to occur in the future. Today, the very same three-judge Ninth Circuit panel issued an order stating, in full, that "The previous opinion, filed November 13, 2002, is withdrawn, and a memorandum disposition is filed in its stead." The Ninth Circuit's online docket entries fail to show a request by either party to turn the published ruling into a non-precedential decision, and because the Ninth Circuit's Web site doesn't offer access to memorandum dispositions, it is impossible to determine at this time whether the Ninth Circuit's ruling has changed. Today's development, in my view, provides just one more reason for why the Ninth Circuit should begin making its non-precedential rulings available at its Web site. Posted at 15:17 by Howard Bashman We have a winner: Jonathan Soglin, Staff Attorney, First District Appellate Project in San Francisco, CA emails: Sorry, no clever insight based on Lithwick's writing, but .... Dahlia Lithwick's Slate bio says, "Before joining Slate as a free-lancer in 1999, she worked for a family law firm in Reno, Nev." I'm thinking a Stanford grad gets to Reno by way of a clerkship. Since were talking late 90's, that narrows it down to Hug, Brunetti and Wiggins. I can only guess at this point. I'll go with Hug. As Chief at that time, he probably had more clerks than the others. (Wiggins was already senior at that time; Brunetti I'm not sure.)You are correct! Dahlia clerked for then-Chief Judge Procter Hug, Jr. of the U.S. Court of Appeals for the Ninth Circuit. Another entry merits reprinting for its thoughtfulness, although the guesses contained therein were wide of the mark: I don't know the answer for sure, but as a recent 9th cir. clerk my guess is Judge Dorothy Nelson -- (1) they seem to be politically simpatico, from what I can glean from the Slate columns, (2) Judge Nelson hires very smart clerks (e.g., Lithwick), (3) Judge Nelson is a very good writer (as is Lithwick), (4) Judge Nelson's clerkship was sought-after around the time I'd guess Lithwick graduated from law school (not to imply that it is not still desirable, as it is). Judge Betty Fletcher also fits the bill, but Lithwick doesn't seem to have the liberal ideology of most Fletcher clerks I've met. BBF is a close second for that reason.Thanks to all who took part in this competition. Posted at 15:03 by Howard Bashman Part two of the Amar brothers on stare decisis and Roe, Bakke, and Bowers: Available here today at FindLaw (just ignore the rather odd headline for the essay; FindLaw's usual headline writers probably have this week off for the holidays). And you can still access part one here. The third and final part will be on its way someday soon. Posted at 14:47 by Howard Bashman Don't Control or Delete this Alt: Robert Alt of the Ashbrook Center's "No Left Turns" blog has a bunch of interesting recent posts at that site. He addresses here the assertion that Sixth Circuit nominee Jeffrey S. Sutton has a record of "deep hostility to core civil rights principles"; he addresses here yesterday's exchange between Circuit Judges Richard A. Posner and Frank H. Easterbrook over whether Chevron deference is anti-democratic; and he addresses here whether a law banning cloning would exceed the U.S. Congress's power under the Commerce Clause. Posted at 14:36 by Howard Bashman Larry Lessig uncovers a mole in his effort to free the mouse: Details here, via the Lawrence Lessig blog. Posted at 14:27 by Howard Bashman Ninth Circuit panel rejects facial challenge to constitutionality of RLUIPA: Or, Ray Lupa, which is how one apparently pronounces the acronym for the federal law known as the Religious Land Use and Institutionalized Persons Act of 2000, a statute that you can learn lots more about here. Today's Ninth Circuit ruling begins: California State prison officials ("California") bring a facial challenge to the constitutionality of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. sec. 2000cc et seq. (2000) ("RLUIPA"), on various grounds. Their appeal arises from a series of preliminary injunctions, issued pursuant to RLUIPA, which allow Muslim prisoners to attend Friday afternoon religious services.And the opinion ends: We hold that Congress did not exceed its Spending Clause power in enacting RLUIPA.You can access the entire very interesting ruling at this link. Posted at 13:44 by Howard Bashman Today's edition of The Legal Intelligencer reports on my Third Circuit oral argument from last week: Reporter Shannon P. Duffy has a wonderful article in today's edition of The Legal Intelligencer about my Third Circuit oral argument from last week. Those who, after reading Shannon's article, are interested in learning even more about the case can access my appellate brief (PDF format) at this link. Posted at 12:45 by Howard Bashman For whom did Dahlia Lithwick clerk, anyhow? It turns out that my earlier post definitely overstated the likelihood that the federal appellate judge for whom Dahlia Lithwick clerked might be nominated to serve on the U.S. Supreme Court. Let's just say that I had received some inaccurate information from a seemingly reliable source that Dahlia had clerked for a certain Fourth Circuit judge. Dahlia says she didn't clerk on the Fourth Circuit, and certainly she should know better than anyone. In fact, she clerked for a judge on a federal appellate court that's so large, many think it should be split into two smaller circuits. That's the only hint I'm going to provide right now, and elsewhere the Internet doesn't appear to offer a definitive answer for whom she clerked. But readers who wish to take a shot at the answer (but not those who definitely know) are invited to offer their guesses with an explanation for why they are choosing a particular judge. Posted at 12:37 by Howard Bashman Goin' to Kansas City: Sometime within the next two weeks I will have the pleasure of setting foot inside the geographical boundaries of both the U.S. Court of Appeals for the Eighth Circuit and the U.S. Court of Appeals for the Tenth Circuit. Because I've never been to K.C. before, I'd certainly welcome recommendations concerning the town's best barbeque restaurant. I hear that barbeque aficionado Calvin Trillin likes this one, but some others also seem worthy of note. Posted at 08:55 by Howard Bashman Add a judicial wing to the Baseball Hall of Fame? That's what New York Times sports columnist George Vecsey suggests in this essay published today. Vecsey overlooks the fact that Judge Kevin M. McCarthy of the San Francisco Superior Court somehow managed to forget home run king Roger Maris in the first published version of his recent decision announcing the fate of a certain historic home run ball hit by Barry Bonds, as I reported in a post you can access here. Posted at 08:47 by Howard Bashman Elsewhere in Friday's newspapers: Today's edition of The Los Angeles Times contains an article entitled "Disorder in the Court Comes Out on the Record: Dueling opinions by state chief justice and an acerbic dissenter offer a rare glimpse of frictions customarily confined to the inner sanctum." The "acerbic dissenter" in question is no one other than Associate Justice Janice Rogers Brown, who has received many mentions recently as a potential U.S. Supreme Court nominee. I previously reported on one aspect of today's LATimes article in a post you can access here entitled "Not satisfied simply to debate stun belts, Supreme Court of California additionally debates usefulness of student law review comments." The LATimes today also contains an article entitled "Reflections on 2002: Courts -- 'Under God' Ruling Spurred Angry Debate." You can access here an article that begins, "In a key West Coast defeat for Big Tobacco, the Oregon Supreme Court refused to hear Philip Morris Cos.' appeal of an $80.3-million award to the family of a lung cancer victim, marking the first time a state high court has upheld a punitive damage verdict in a smoking-and-health case." Additional coverage is available here via The Portland Oregonian. And the LATimes reports here that "A federal appeals court has denied a request by California farmers who wanted to be exempted from a federal air quality permitting program until legal wrangling was resolved." USA Today contains an article entitled "Civil rights groups to press Frist." The article notes that the Leadership Conference on Civil Rights wants Senator Frist to: Oppose five of President Bush's 15 federal judicial nominees who were left in limbo when Congress adjourned in November: Charles Pickering of Mississippi; Priscilla Owen of Texas; Carolyn Kuhl of California; Terrence Boyle of North Carolina and Jeffrey Sutton of Ohio. They have "records of deep hostility to core civil rights principles," the Leadership Conference contended. Supporters of the five say they are being opposed because they are conservative.Last but not least, The Boston Globe today contains an editorial entitled "Defeat for a drug benefit" that addresses a recent ruling of the U.S. Court of Appeals for the D.C. Circuit. Posted at 08:23 by Howard Bashman The potential U.S. Supreme Court nominee who actually did clerk for Antonin Scalia: In the rush to proclaim, albeit incorrectly, that Third Circuit Judge Samuel A. Alito, Jr. once clerked for Antonin Scalia, both today's article from The New York Times and last month's Stuart Taylor Jr. column from the National Journal have overlooked that Fourth Circuit Judge J. Michael Luttig really did clerk for Scalia on the D.C. Circuit before Luttig went on to clerk for Chief Justice Warren Burger. Another overlooked aspect of the continuing speculation over who may be nominated to fill any upcoming U.S. Supreme Court vacancy or vacancies is the possibility that the appellate judge for whom Slate Senior Editor Dahlia Lithwick clerked could be nominated to the Court. Would it affect her often irreverent, but always top notch, coverage of the Supreme Court if the judge for whom Lithwick clerked were to join that Court? One certainly hopes not. Posted at 07:04 by Howard Bashman "Do African-Americans Really Want Racial Preferences?" That's the title of Stuart Taylor Jr.'s column published this week in the National Journal. The article makes for a very interesting read, if you can overlook that italics run wild throughout the final seven and one-half paragraphs of the piece. Posted at 00:53 by Howard Bashman In Friday's newspapers: The New York Times contains an article entitled "Expecting a Vacancy, Bush Aides Weigh Supreme Court Contenders." In the article, reporter Neil A. Lewis perpetuates an error committed earlier by National Journal columnist Stuart Taylor Jr. (which Taylor then corrected at the bottom of this column the very next week) when Lewis incorrectly writes that Third Circuit Judge Samuel A. Alito, Jr. clerked for Justice Antonin Scalia. Alito did not clerk for Scalia. Scalia did not join the D.C. Circuit until 1982 and did not join the U.S. Supreme Court until 1986. Alito in fact clerked for Third Circuit Judge Leonard I. Garth from 1976 to 1977, after which Alito worked in the U.S. Department of Justice in various capacities through 1990, when Alito joined the Third Circuit. Alito would make an excellent choice for the Supreme Court, but if that doesn't happen he is destined to serve as Chief Judge of the Third Circuit at some point down the road. The Washington Post publishes an article on the increasing use of federal criminal complaints to obtain arrest warrants. The Post also contains an editorial entitled "Torture Is Not an Option." Friday's edition of The Christian Science Monitor offers an article entitled "Has equality in sports gone too far? A federal panel mulls changes to Title IX, which has remade women's sports over 30 years." The Monitor also includes an article about a federal court challenge to an Arizona law that makes it a crime for non-governmental entities to publish online information on behalf of prison inmates. Posted at 00:14 by Howard Bashman Thursday, December 26, 2002
"The Biggest IP Cases of 2002": law.com offers this report, featuring several appellate court rulings previously summarized here at "How Appealing."
Posted at 22:33 by Howard Bashman
"His name is Mudd": The Weekly Standard, in its issue of December 30, 2002, contains an article entitled "The Last Battle of the Civil War: In 1865, a military tribunal convicted Dr. Samuel A. Mudd in the conspiracy to assassinate Abraham Lincoln. Was he guilty?" The article contains mention of an appeal the U.S. Court of Appeals for the D.C. Circuit recently decided that represented an effort by Dr. Mudd's descendants to clear his name. Posted at 20:09 by Howard Bashman The U.S. Supreme Court has posted the remaining transcripts from its December 2002 argument session: As a result, you can access here the oral argument transcript in the Virginia cross-burning case, and you can access here the transcript in the whopping big punitive damages case, both of which were argued on December 11, 2002. A reader helpfully emails to note that "Justice Thomas's now-famous soliloquy begins on page 22 of the [cross-burning case's] transcript." Posted at 18:03 by Howard Bashman Reader feedback concerning non-precedential federal appellate rulings: Received two interesting emails so far today on the subject of non-precedential federal appellate rulings. The first states: I clerked a long time ago (Lumbard and Burger) so my views may be somewhat paleolithic, but IMHO, written opinions should either be well thought out and citable as precedent or not issued. If the court doesn't want to take the time to issue an opinion, it should just say AFFIRMED or REVERSED, cite the controlling precedent, and let it go at that (if there is no controlling precedent, then the court should issue a full opinion). Alternatively, the court could (as the Second Circuit did occasionally when Lumbard was CJ) issue oral opinions from the bench, telling the appellant why his appeal is being rejected (obviously, an oral opinion is a poor vehicle for reversing a lower court). In any event, I have a huge problem with your former 9th Cir. clerk's notion that it's OK to have a relatively large body of law that is unknown to the public and which the issuing court is not willing to stand behind.Another reader who formerly clerked for a judge on the U.S. Court of Appeals for the Tenth Circuit emailed to say: No one has yet spoken to the realpolitik dimension of the "unpublished and nonprecedential" issue. During my year clerking on the Tenth Circuit I witnessed a number of instances in which a panel majority---sometimes unanimous, sometimes not---was formed on condition that the proposed opinion remain unpublished and thus not binding on subsequent panels. Generally speaking this situation arose in two contexts: either (a) the proposed opinion sought to "equitably" dispose of a matter that by law should have been resolved otherwise, or (b) the proposed opinion was breaking new legal ground in a manner that one or more of the panel members was uncomfortable with. (Sometimes the line between the two is difficult to distinguish. See, e.g., United States v. Williams, 44 Fed. Appx. 362, 364 (10th Cir. 2002) (per curiam) (unpublished).) To my mind, these are precisely the types of cases that should be published. In each of these contexts the development of the law is being stymied by the court's reliance on non-publication---though I concede that these accommodations may allow justice to be served in individual cases.This second email reminds me of something that a state court intermediate appellate judge recently told me: it is the role of trial judges to see that justice is done, whereas it is the role of intermediate appellate court judges to see that the rules are applied properly. I think that view captures well how the system is supposed to work, and I agree that unpublished opinions present the risk of allowing a three-judge panel's view of "justice" to triumph over the result that a dispassionate and evenhanded application of the rules would otherwise require. Posted at 17:25 by Howard Bashman Circuit Judges Posner and Easterbrook clash over whether Chevron deference is undemocratic: In a very interesting opinion issued today, two of the best and brightest federal appellate judges in the Nation disagreed over whether so-called "Chevron deference" is an undemocratic practice. The Seventh Circuit's majority opinion, written by Circuit Judge Richard A. Posner, explains: When a statute administered by a federal agency is unclear and the agency is authorized to interpret it, the agency's interpretation, unless unreasonable, may bind a reviewing court in accordance with Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984). Ordinarily issues of statutory interpretation are treated as pure issues of law, and no deference is given the interpretation adopted by executive or other officials. But Chevron, in effect equating statutory interpretation to policymaking (cf. Hans Kelsen, Pure Theory of Law 351-353 (Max Knight trans. 1967)), hands over (with certain qualifications) interpretive responsibility to the officials responsible for making policy judgments, when the ordinary interpretive tools used by courts, such as textual interpretation, do not work well.Circuit Judge Frank H. Easterbrook issued an opinion concurring in part and concurring in the judgment that begins, "I join my colleagues' opinion except for those portions that discuss Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)." At the close of his opinion, Judge Easterbrook explains: All of this makes Chevron by the by, so it is surprising that my colleagues go out of their way to suggest that its approach is undemocratic and that statutory interpretation is just policymaking by another name. In what sense could it be "undemocratic" to have statutory ambiguities resolved, and gaps filled, by elected officials (and those who serve at their pleasure) rather than by judges whose tenure insulates them from the popular will? What is more, textualists are among Chevron's supporters, an odd position if the decision adopts the view that legal texts are empty vessels to be filled by judges (or administrators). All Chevron does is acknowledge that decisionmaking authority is shared among branches of government; it does not imply that the only sensible interpretive stance is pragmatic rather than textualist. Nor does Chevron surreptitiously transfer authority from the legislative to the executive branch of government. Agencies' interpretive role stems from delegation of authority, not raw ambiguity. That's one reason why Chevron does not require courts to implement "interpretations" that agencies announce without following the APA's requirements for rulemaking: following forms is a condition attached to the delegation.You can access Judge Posner's majority opinion and Judge Easterbrook's opinion concurring in part and concurring in the judgment |