How Appealing

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.

Lidov has also never been a student or faculty member of Columbia University, but he posted his article on a website maintained by its School of Journalism. In a bulletin board section of the website, users could post their own works and read the works of others. As a result, the article could be viewed by members of the public over the internet.

Revell, a resident of Texas, sued the Board of Trustees of Columbia University, whose principal offices are in New York City, and Lidov, who is a Massachusetts resident, in the Northern District of Texas. Revell claimed damage to his professional reputation in Texas and emotional distress arising out of the alleged defamation of the defendants, and sought several million dollars in damages. Both defendants moved to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). The district court granted the defendants' motions, and Revell now appeals.
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 Kansas, convicted sex offenders must participate in a sex abuse treatment program that requires them to accept responsibility for the crimes for which they have been convicted and list all other prior sexual activities, even if they would thereby disclose uncharged criminal offenses that the state could then choose to prosecute. In exchange, the convicts in the program get to reside in a medium security institution, have televisions in their cells, and live in two-man cells. Convicts who refuse to participate are sent to high security institutions, must live in four-man cells, and receive fewer visitors from outside the prison, fewer job opportunities, and fewer other privileges. Respondent Robert G. Lile, who had been convicted of rape and related offenses, sued, claiming that the treatment program's enticements violated his Fifth Amendment right against self-incrimination. By a vote of 5-4, the High Court disagreed.

Justice Kennedy wrote the opinion announcing the judgment of the Court, in which the Chief Justice and Justices Scalia and Thomas joined. Justice O'Connor wrote an opinion concurring in the judgment in which she said that she agreed mostly with Justice Stevens' dissent, saw little reasoning in Justice Kennedy's opinion that would attract her vote, but nonetheless was voting with Justice Kennedy anyway. As a result of the breakdown of the voting in this case, the decision establishes little precedent beyond holding that programs like the one in Kansas are legal, but anything worse might lose Justice O'Connor's vote.
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.

This case involves a painful exception to that rule, a random act of violence that has forever changed the way that one person looks at the world, and in some respects has rocked the sense of security of an entire Maine community.

* * *

[A]fter the drawer was empty and the phone cords had all been cut, thank God, the three of them left the hotel lobby.

* * *

Finally, as you assess the codefendants' credibility, consider how their testimony fits with the defendant's own words. You see, after the defendant was arrested on these charges, he chose not to speak to the police, and that was certainly his right. He did give a false name.
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.

Number two, you are not to use as an element in determining guilt or innocence in this case whether or not we're fortunate in Maine to be safe or not . . . and whether you or Maine or any community is safer or less safe depending upon whether you find the defendant guilty or not guilty. That simply is not an appropriate issue. You're only to use the issue of whether or not the government has proved beyond a reasonable doubt sufficient facts to show that the defendant beyond a reasonable doubt has committed those acts necessary to constitute these crimes.
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.

Lederberg, of Providence, a graduate of Brown University, had sat on the state's highest court since May 1993. Before joining the appellate court, she had been a municipal court judge in Providence and for 25 years, had taught psychology at Rhode Island College.

Before becoming a judge, Lederberg was a prominent Democratic state legislator and represented her East Side district for 14 years, first in the state House of Representatives and later in the state Senate. She ran unsuccessfully for secretary of state in 1982.

Justice Lederberg was the wife of Seymour Lederberg, professor emeritus of biology at Brown, to whom she was married for more than 43 years. She was the mother of two children -- Sarah Lederberg Stone, of Westwood, Mass., and Tobias Lederberg, of Providence, a lawyer who became a member of the Rhode Island bar the same year his mother became a Supreme Court justice.

"We're shocked. She was a valued colleague -- hard-working and thorough," said state Supreme Court Chief Justice Frank J. Williams. "She will be sorely missed by the Supreme Court, the judiciary and the community."

Lederberg is the second Supreme Court justice to die within the past five months. Associate Justice John P. Bourcier, who was known for his toughness, hard work and intelligence during his 28 years on the state bench, died Aug. 15 of complications from cancer. His replacement has not been named.

"We've been dealt a bad hand," said Williams. "No judiciary in any state should be put in this position. The strength of the democracy and the judiciary will go on. We are current on all of our cases as she [Lederberg] was on hers. We will rely on ourselves and on retired Justices [Joseph R.] Weisberger and [Donald F.] Shea, as we have been."

Justice Lederberg had seemingly been in fine health, according to her son. She regularly walked the streets of College Hill and Blackstone Boulevard for exercise and had been planning to take her eldest grandchild ice skating yesterday.

Tobias Lederberg said his mother had spent a quiet evening at home with his father Saturday night and had not complained of feeling ill before retiring for the night. She died about 5:30 a.m. upon awakening.

Governor Almond called Lederberg "a fine member of the bench [who] approached her work with such grace and dignity. In every step of her career, Judge Lederberg has been a tremendous role model. Her death is a tragic loss for all Rhode Islanders," Almond said.
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.

That said, you might reconsider whether the 7th Circuit order in Philomena Nwaokolo v. I.N.S. that you linked today really shows how dreadfully the INS handles things.

Yeah, I know they're dreadful, but... When I read the 7th Circuit's order, I think the 7th Circuit should come in for some criticism itself.

The 7th Circuit decided to stay the fully justified and long-overdue deportation of petitioner Nwaokolo because, apparently, they felt that the INS hadn't sufficiently considered the impact of that deportation on a third party, Nwaokolo's (U.S. citizen) daughter. Talk about reaching... there's precious little in the law to support petitioner's claim that her case should be decided on such grounds.

I smell an intervention on sympathy grounds, not legal ones.

The INS isn't trying to deport petitioner's daughter, and the INS properly decided that petitioner herself faced no realistic threat of torture.

Petitioner is an illegal alien who violated the terms of her visa, violated her own "voluntary departure" parole, and who has resisted or violated every order to depart over something like fifteen years. During this time, she managed to produce some offspring. Now she wants to avoid her long-overdue deportation on a claim that her offspring would be harmed... by their purely speculative exposure to torture in her home country... to which they need not accompany her, and in which (I think this is particularly relevant) *the threat of FGM would proceed mainly, if at all, from Nwaokolo herself.*

The very State Department report of which the 7th Circuit takes such alarmed and aghast judicial notice relates that FGM victims are almost always attacked by their own parents or guardians!

So Nwaokolo's claim boils down to "don't deport me lest I feel tempted to torture my own daughter!"

(I observe that the 7th Circuit takes no more interest than Nwaokolo's attorney did in the question of whether the daughter could remain with her *father* in the USA.)

Note that the 7th Circuit asks the parties to brief the question of whether the INS/BIA must let petitioner remain in the country because her deportation might, speculatively, work a hardship on her US-citizen offspring... a question which is no slam-dunk. As much as our "natural sympathies" might favor keeping Nwaokolo in the US to care for her daughters, setting up the rule that illegal aliens may avoid deportation simply by reproducing while on the lam from US immigration law would nearly moot that law. This is not a policy change that the 7th Circuit should be initiating.
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.

a) Very fine barbecue at Arthur Bryant's but definitely a destination for a meal and not much else (a drink, music, etc.). My favorite barbecue is found at Fiorella's Jack Stack Barbecue which is near Union Station.

b) if you are staying downtown, the Majestic Steakhouse is my favorite spot in KC full stop. Good drinks, very good steaks, jazz in the very cool basement 7 days a week, and it was once a brothel. It is on Broadway near 10th - not far from the downtown Marriot.

c) if you have time and want excellent food and wine of a French variety, Le Fou Frog down in the city market. Great food, really great and it is a 3 times per week lunch haunt of [name of different Eighth Circuit judge deleted]. About a 2 minute drive from the court house and has excellent lunch menu - affordable at lunch, a bit pricey at dinner. Great wine list.

Enjoy KC, a real gem of a city.
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.

There are some who prefer Gates BBQ, but I think they are mistaken. Other than these two restaurants, the only other acceptable choice is a place called Haywards in Overland Park. You may hear of some who like KC Masterpiece, but I find its sauce to be too sweet.
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.

Just FWIW. We didn't have any other barbecue in Kansas City, so for all I know there are twelve better places. But I'd jump at the chance to have more Arthur Bryant's right now.
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.

Bryant's has probably the best meat. I often order it without the sauce just to enjoy the true smoked beef taste. Their ribs are excellent too. The sauce uses a corn meal thickener and is not sweet like you find at other BBQ joints.

KC Masterpiece is OK for a chain. There real fame is the sauce, which you can find commercially at most groceries nationwide. The sauce is very sweet.

Gates is the "fast food" type BBQ chain. It is a unique experience. Decent, but not exceptional. The sauce is hot. Good bet when you can’t get to Bryant's

I would suggest that you try Hayward's in Overland Park. Good meet, good sauce and large helpings.
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:

Haven't been there myself, but if it's good enough for Virgil, that's high praise. (And if you haven't been to Virgil's, you've gotta go, and you've gotta get the ribs---with the pecan rice and the biscuits w/ maple butter.)
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.)

Regarding barbecue, Arthur Bryant's is considered the most authentic by many experts. In fact, a TLC program about the history of barbecue named KC as the barbecue capital because of the predecessor to Bryant's. (Apparently the founder somehow managed to get all the soldiers from Fort Riley to eat there on their way to & from Europe for World War I.) They still use the original recipe. Now, I know that Calvin Trillin (who went to high school with my parents, by the way) says Bryant's is the best restaurant in the world. Far be it from me to disagree with Mr. Trillin about anything, especially Bryant's. But that commendation sets up a certain expectation, which Bryant's may not live up to. Bryant's has great food, but the facility is less than 4-star, to say the least. Tile floors, Formica table tops, paper towels for napkins, & cooks who shout for your order through the window separating the public from the ancient brick smoker, create a different atmosphere than many first-timers expect from the world's greatest restaurant. It's always funny to see someone walk in for the first time, & look around as if to say, "Can this be the right place?" But if authenticity is what you want, you'll get it there.

There are a number of other great places, including Jack Stack, KC Masterpiece, Gates (another "old-time" place), Smokehouse, Oklahoma Joe's, Hayward's (best burnt ends in town, in my opinion), Rosedale, and Zarda. For a nice restaurant atmosphere, I would pick Jack Stack, although many people love KC Masterpiece. As you probably know, the main culinary difference is sauce. Masterpiece is at the sweet end of the scale, with Bryant's at the more vinegar-y (is that a word? I guess it is now) end.

The other food we're known for is steak. Hereford House and the Golden Ox (which is in the old stockyards--don't worry--the cattle are long gone) are the best.

If you have time while you're here, I'd like to treat you to the meal of your choice at one of these fine establishments. Take care.
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.

Also, if you like great Mexican food, there's a string of authentic places on Southwest Blvd., near downtown. California Tacqueria is our favorite.

Finally, don't miss the local-brewed beer -- Boulevard. Great stuff.
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": 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.

I think part of the problem is that the federal appeals courts have become accustomed to writing lengthy opinions, with footnotes, and lengthy discussion of the origins of the law, blah, blah. Opinions from the Learned Hand days were much shorter, less academic, but surely just as valuable as guides to the perplexed. If the federal judges could ever wean themselves away from their law clerks, they might find that writing opinions needn't be a painful and drawn-out process.
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.

By taking this position the Court appears to have shifted power from the legislative to the executive branch, and to the so-called "independent" administrative agencies as well, by limiting judicial authority to preserve the deal struck by contending interest groups in the original legislation. For while in principle Congress can step in and curb a straying agency, the practice is often different because of the obstacles to legislating that are built into the federal legislative process, including bicameralism and the Presidential veto. William N. Eskridge, Jr., Dynamic Statutory Interpretation 164-67 (1994); Jonathan T. Molot, "Reexamining Marbury in the Administrative State: A Structural and Institutional Defense of Judicial Power Over Statutory Interpretation," 96 Nw. U.L. Rev. 1239, 1282 (2002); see also William N. Eskridge, Jr. & John Ferejohn, "The Article I, Section 7 Game," 80 Geo. L.J. 523, 538-43 (1992). These obstacles give agencies a degree of running room.

Small-d democrats might question Chevron's shift of legislative power to the bureaucracy. But realists, while acknowledging the point and also that it is a fiction to suppose Chevron itself an interpretation of the statutes to which it applies or that the exercise of power by appointed officials is democratic merely because it is authorized by elected officials, will applaud the Supreme Court's recognition that the interpretation of an ambiguous statute is an exercise in policy formulation rather than in reading.
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.

Interpretation differs fundamentally from regulation. Judges do not apply Chevron to the Attorney General's interpretation of the Sherman Antitrust Act, whether in public or in private litigation, although the antitrust statutes are notoriously open-ended. Nor do courts accept under Chevron the prosecutor's interpretation of ambiguous criminal statutes such as RICO. Chevron itself says that delegation is the key; Adams Fruit and Mead drive the point home. When the holder of a delegated power wields that authority, the legislative plan has been fulfilled, not frustrated. Congress can choose to delegate, or not, statute-by-statute or through framework laws such as the APA; it could undo Chevron across the board if the doctrine functioned as kryptonite to its enactments. All that matters today, however, is that when the executive branch does not employ regulatory power delegated by the legislative branch, resolution of ambiguities in private litigation belongs to the judicial branch.
You can access Judge Posner's majority opinion and Judge Easterbrook's opinion concurring in part and concurring in the judgment at this link.
Posted at 13:58 by Howard Bashman

Today must be the day after Christmas: As many parents throughout the land are wondering what to do with toys in which the children have already lost interest, today the U.S. Court of Appeals for the Seventh Circuit issued an opinion involving whether Hasbro, Inc. should be required to pay a vendor for an ingredient used in the manufacture of a toy that Hasbro ultimately discontinued. The opinion, written by Circuit Judge Richard A. Posner, begins:
POSNER, Circuit Judge. "Wonder World Aquarium" is a toy that Hasbro, Inc., the well-known designer and marketer of toys, sold for a brief period in the mid-1990s. The toy comes as a package that contains (we simplify slightly) the aquarium itself, some plastic fish, and, depending on the size of the aquarium (for this varies), large or small packets of a powder that when dissolved in distilled water forms a transparent gelatinous filling for the aquarium. The gel simulates water, and the plastic fish can be inserted into it with tweezers to create the illusion of a real fish tank with living, though curiously inert, fish. "Pretend blood," included in some of the packages, can be added for even greater verisimilitude. The consumer can choose among versions of Wonder World Aquarium that range from "My Pretty Mermaid" to "Piranha Attack"--the latter a scenario in which the pretend blood is doubtless a mandatory rather than optional ingredient.
You can access the complete opinion at this link.
Posted at 13:52 by Howard Bashman

Access the U.S. Supreme Court oral argument transcript in the IOLTA-Fifth Amendment takings case: The U.S. Supreme Court has just posted online the oral argument transcript in the confusingly named case of Washington Legal Foundation v. Legal Foundation of Washington. The case involves a Fifth Amendment takings challenge to the operation of IOLTA programs. You can access the transcript at this link. And you can access here Tony Mauro's article of December 10, 2002 reporting on this oral argument.
Posted at 11:40 by Howard Bashman

A dissenting view on the desirability of non-precedential federal appellate decisions: Someone who recently served as a law clerk to a judge on the U.S. Court of Appeals for the Ninth Circuit sent along an email yesterday disagreeing with my view that non-precedential federal appellate decisions should not exist:
Merry Christmas Howard. Before I begin ranting, I want to say how much I truly enjoy reading your blog everyday.

That being said, I have just had the opportunity to read your Jan 02 column re: the 3d Cir. and unpublished appellate opinions. With all due respect, I find no value in bestowing "precedential" effect on unpublished opinions at any level. There are a variety of reasons why it is beneficial to the Court, the litigants, and the system generally to have unpublished, non-citable, opinions.

First, it allows the panel to explain its decision and reasoning to the litigants. If they decide to affirm summary judgment, for example, the opinion can set forth why there were no material facts in dispute or, similarly, why the district court did not err in not departing from the USSG. I believe this is beneficial for everyone.

Second, you say (citing the DC Cir. as an example) that allowing citation to unpublished opinions, with the understanding that they have no precedential effect, is a good middle ground -- especially when the unpublished opinion breaks no new legal ground. I find this hard to accept. There is no opinion, published or otherwise, that can possibly not break new legal ground, in any way or fashion. Each time a law is applied, it is applied to a new or different set of facts. While the road you travel might be the same and the destination the same for eternity, the traveler will nevertheless leave footprints. It is those footprints that will create problems. Those footprints, if you will, leave wrinkles in the law -- crevices that wily attorneys will use to distort and create havoc for future panels and litigants And it is not because the unpublished decisions are decided wrong, it is simply that they need not be part of the universe of precedential decision. There are only so many opinions one needs on the standard of review for AEDPA or what constitutes a valid FRCrimP 11 plea. To have too many precedential decisions does not strengthen nor clarify the law; rather, it makes it more lutaceous. Clever and resourceful advocates will troll through the databases and always be able to find that one case that appears to support their position when, in fact, it does not and should not because that particular decision was decided (not erroneously) but based on the particular nuanced and quirks of the facts presented to that panel. This will appear to be new law, but was intended not to break any new legal ground.

Third, and finally, making unpublished opinions citable and precedent, will lead to a chilling effect. Most judges will wise up and simply issue memorandum dispositions -- e.g. citing one case law and then ending it with an "AFFIRMED" or "REVERSED". This is not what we as advocates want. If we get a decision, we want it explained to us -- even if that explanation is not citable and is absolutely otiose for posterity.

Take care and thanks for listening. Happy New Year.
For those readers who are wondering what the word lutaceous means (hmm, for whom on the Ninth Circuit could this reader have clerked?), click here to find out.

With respect to the substance of these comments, my January 2002 appellate column provides the reasons for my view that non-precedential federal appellate decisions should not exist, and I realize that I may be in the minority (but perhaps not for long) in that view.

As is often the case, Fifth Circuit Judge Jerry E. Smith has previously addressed this topic -- in an opinion dissenting from the denial of rehearing en banc -- and I suggest that readers interested in further thoughtful discussion of this controversial issue consult his dissenting opinion, which you can access here.
Posted at 10:05 by Howard Bashman

In Georgia, "State abortion battle brews in Legislature; Buoyed by GOP gains, foes see better chance of limits being passed": The Atlanta Journal-Constitution today offers this report.
Posted at 09:35 by Howard Bashman

Elsewhere in Thursday's newspapers: USA Today reports here that "New year brings new start for Bush agenda." And here you can access an article entitled "Cell phone suits targeting firms."

In The Los Angeles Times, columnist Nora Vincent has an essay entitled "Affirmative Action's Negatives."

Finally for now, The Boston Globe contains an article entitled "'SNL' bit breaks hearts, not laws."
Posted at 07:23 by Howard Bashman

In Thursday's newspapers: The Washington Post offers a front page story entitled "U.S. Decries Abuse But Defends Interrogations: 'Stress and Duress' Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities." And, at OpinionJournal, Pete du Pont offers his thoughts on "2002 in Review."
Posted at 00:42 by Howard Bashman

Wednesday, December 25, 2002
Ears burning? Anyone with his or her own blog may be interested to learn about a new, free service known as "Link Cosmos" offered by Technorati. The service shows which blogs have recently linked to your blog, or to any other blog for that matter. All you need to do is input a blog's address on the search line and then click on the "Get Link Cosmos" button to discover who has been linking to that blog.
Posted at 23:18 by Howard Bashman

BlogSpot RSS feeds: For those who are looking for a list of all RSS/XML newsfeeds available from BlogSpot-hosted Web logs, Rick Klau has found an easy way to see what's available. Plus, as Rick explains, "How Appealing" played a surprising role in his discovery.
Posted at 23:03 by Howard Bashman

In Wednesday's newspapers: In today's edition of The New York Times, reporter Adam Liptak has an article entitled "Federal Appeals Court Decisions May Go Public." The article explains how the prohibition against citing non-precedential federal appellate court rulings is beginning to crumble and includes an interview with Professor Arthur D. Hellman of the University of Pittsburgh School of Law.

I believe that non-precedential federal appellate court rulings should not exist, and therefore I view as very positive the developments reported in this morning's article. I do have one nit to pick with Liptak's article. He writes that "On Jan. 1, the United States Court of Appeals for the District of Columbia Circuit and the Texas Supreme Court will reverse their restrictions on citing these so-called unpublished decisions." The D.C. Circuit in fact dropped its prohibition last January 1st, as I explained in the January 2002 installment of my monthly appellate column, entitled "2002 Brings New Developments In Controversy Over the Precedential Status of Unpublished Appellate Opinions." Two earlier installments of my monthly column also addressed this general subject, and you can access them here (December 2000) and here (January 2001). And, as I recently noted in a post on this blog, my monthly appellate column is returning to this subject in its January 2003 installment.

Today's edition of The NYTimes also contains an article that begins, "WASHINGTON, Dec. 24 -- State efforts to provide prescription drugs to low-income people suffered a setback today as the United States Court of Appeals here struck down a pioneering program established by the State of Maine." You can access yesterday's ruling by the D.C. Circuit at this link. And you can access here an article entitled "The Meter Runs in Enron Case, as the Lawyers Retain Lawyers."

The Washington Post contains an article today entitled "Ethics Probe Ordered of 6 U.S. Lawyers in Indian Trust Suit."

Tomorrow's edition of The Christian Science Monitor is already available online, and it contains an article by Warren Richey entitled "Whistle-blowers tapped to clean up corporate crimes; New law taking effect in January forces lawyers to expose corrupt business practices. Will it do any good?" Tomorrow's edition of The Monitor also contains an op-ed entitled "Diversity's best leaders take their own affirmative actions."

Today's edition of The Los Angeles Times contains an article captioned "Pardons Help 3 Men Get Right With the World; They long ago paid their debts to society for minor offenses, but legal obstacles remained. Then the president answered their pleas."

And, finally for now, The Boston Globe contains an op-ed entitled "A candid conversation about race in America."
Posted at 10:25 by Howard Bashman

Happy Holidays! It began as a White Christmas very, very early this morning here in the Philadelphia suburbs, but now it's just a wet Christmas, with a good chance of more snow replacing the rain later this evening. Congratulations to several law blogging colleagues from Delaware who received mention yesterday in that State's leading newspaper, The News Journal.
Posted at 10:24 by Howard Bashman

Tuesday, December 24, 2002
Now available online at You can access here an article entitled "Citrix Quits First Amendment Challenge to Taxes."
Posted at 22:40 by Howard Bashman

Risk of Legionnaires' disease feared at new Sandra Day O'Connor U.S. Courthouse in Phoenix: The Arizona Republic has this report, which explains that "[t]hough the courthouse has reaped design awards for New York architect Richard Meier, it has been bedeviled by mistakes and cost overruns." You can access prior coverage about the courthouse here and here.
Posted at 20:35 by Howard Bashman

Third Circuit scolds OSHA for failing to issue exposure limit for hexavalent chromium, a known carcinogen: Today a clearly exasperated U.S. Court of Appeals for the Third Circuit issued a decision that concluded:
For the foregoing reasons, we hold that OSHA's delay in promulgating a lower permissible exposure limit for hexavalent chromium has exceeded the bounds of reasonableness. We therefore grant Public Citizen's petition to compel OSHA to proceed expeditiously with its hexavalent chromium rulemaking. Deferring our specific remedial order, we direct that the parties appear before Judge Walter K. Stapleton for mediation for a period not to exceed sixty days, following which, if the parties have not agreed on a mutually satisfactory timetable, we will order one of our own.
With regard to hexavalent chromium, the opinion explains:
Hexavalent chromium is a compound found only rarely in nature but used widely in industry -- for chrome plating, stainless steel welding, alloy production, and wood preservation. The dangers of exposure to it have long been recognized, and include ulceration of the stomach and skin, necrosis, perforation of the nasal septum, asthma, and dermatitis. More significantly, there is strong evidence that inhaled hexavalent chromium is carcinogenic.
Today's ruling is a big victory for the organization Public Citizen, which recently issued a press release entitled "Workers Continue to be Exposed to High Levels of Hexavalent Chromium in U.S. Workplaces, New Study Shows." Lawyers for Public Citizen argued and won the appeal decided today, and you can access that organization's opening Third Circuit brief at this link.
Posted at 19:50 by Howard Bashman

Third Circuit rejects claim that due process requires "true" informed consent before women can choose to have an abortion: Today the U.S. Court of Appeals for the Third Circuit affirmed the dismissal of claims alleging that New Jersey's alleged failure to require women to give "true" informed consent before choosing to have an abortion violates the Fourteenth Amendment's guarantees of equal protection and due process. The panel that decided today's case recognized that an earlier Third Circuit ruling foreclosed plaintiffs' equal protection claim.

With respect to the due process claim, the panel wrote:
Plaintiffs also contend their rights were violated by New Jersey law's "affirmative protection" of doctors performing wrongful abortions. They argue these protections violate their equal protection and due process rights. Because this claim, on its face, is more easily understood as a due process claim, we will analyze it as such.

As far as we can tell, plaintiffs' argument is that doctors in New Jersey regularly perform abortions without the informed consent of their patients. Under plaintiffs' view, state law protects these doctors by endorsing a scheme of inadequate consent. Thus, the state acts (in concert with the doctors) to violate women's right to autonomously control their reproduction. This failure to protect women, by protecting wrongful actions by doctors, allegedly amounts to a violation of women's due process rights.

We do not understand plaintiffs to contend New Jersey affirmatively protects doctors who perform abortions without consent, where consent is understood in its ordinary sense. Instead, they contend consent requirements should include informing the pregnant woman that "her child is already in existence," that her fetus is a "complete, separate . . . unique" human being; and that her child, if eight weeks or older, may feel pain. The woman should also be required to view a sonogram and listen to the child's heartbeat, according to plaintiffs.

What is required for consent under New Jersey law is not fully settled. See Acuna, 808 A.2d at 157 (declining to "address these perplexing issues" prior to development of factual record). In any event, we see no basis for a due process violation. Whatever the particulars of New Jersey law, the Constitution does not require that New Jersey mandate the heightened consent requirements urged by plaintiffs. If plaintiffs believe the informed consent laws in New Jersey are inadequate, they can petition their elected representatives in the New Jersey legislature for redress, or continue to seek relief in the courts under New Jersey law.
You can access today's three-judge panel per curiam ruling at this link.
Posted at 19:36 by Howard Bashman

A primer on the Guano Islands Act of 1856: As promised in the post immediately below, I have done some, um, digging into the background of the Guano Islands Act of 1856. Perhaps the most interesting account of the law appears in this Baltimore City Paper article from February 2001 entitled "Poop Dreams: It's a guano-covered rock in the sea. So why do so many people want a piece of Navassa Island?" This article from The Atlantic calls the Guano Islands Act of 1856 "arguably the best-named piece of legislation in American history." And you can access here a review of a book entitled "The Great Guano Rush: Entrepreneurs and American Overseas Expansion."

Here you can access a quite excellent history of guano and the events surrounding passage of the Guano Islands Act of 1856:
Guano is accumulated bird dung. It can accumulate only in areas with dense bird populations and little rain, but in those special environments it can eventually form deposits many feet thick. As it accumulates and dries, it becomes a dense organic material that is very rich in nitrate and phosphate. Around the world, guano deposits are usually found on dry oceanic islands lying in the middle of oceanic upwelling regions that support very rich fisheries. Living off the fish, and concentrated in great numbers by the small areas of available nesting sites, literally millions of seabirds, each excreting about 20 grams of dung a day, can generate massive amounts of guano.

Around the world, the most productive guano islands have been along the equatorial upwelling zone, especially in the Pacific, and in the great cold currents of the world: the Humboldt current off South America and the Agulhas current off South Africa. * * *

* * *

By the early 1850s, entrepreneurs were prospecting for alternative sources of supply, and lower-quality guano was being shipped to Europe and North America from various Atlantic, Caribbean, and Pacific islands. The State of Maryland even hired a guano inspector to test quality, and levied a charge of 40c/tonne for the "grade stamps" on the sacks.

Guano fever swept American farmers, especially those who had suddenly realized that crop yields were dropping as they exhausted their soil. The US Senate debated guano in 1850, and President Fillmore referred to the urgent question of the nation's guano supply in his State of the Union Address in December that year. The United States tried in vain to negotiate a treaty with Peru for a cheap stable guano supply. Guano made up 22% of the nation's commercial fertilizer in 1850, and 43% in 1860, at a price around $73/ton.

Britain, the USA, France, and Germany were all major guano importers, and it was probably the interest of so many powerful countries in the trade that allowed Peru to keep control: each power would resists occasional attempts by the others to muscle in on the Peruvian end of the trade. In these early years of the guano trade, demand always outstripped supply. In 1852 there was a bizarre attempt by a Brooklyn entrepreneur, Alfred Benson, to persuade the US Navy to protect his ships from Peruvian "interference" while he mined guano from the Lobos islands, 20 to 40 km offshore from Peru in what was commonly accepted at the time as international waters. Benson owned a fleet of ships that routinely made the Cape Horn voyage out to gold-rush California, but generally returned with little cargo. If they could load guano off Peru, reasoned Benson, he could make literally millions of dollars. However, the British and the Peruvians were well aware of the rich guano deposits of the Lobos Islands. The Peruvians had declared them off-limits to mining (they were to be a reserve to be exploited once the Chinca Islands were depleted) and the British were already on record as regarding the Lobos islands as Peruvian possessions. Benson's scheme was thwarted, but William R. Grace entered the guano market in 1854 in a much more legal way, by supplying the miners of Chinca and shipping out guano, in a trade that began the great W.R. Grace & Co.

However, Americans looked toward discovering guano deposits in less contested territory, at a time when the United States was in an expansionist mood. In 1854 and 1855, Americans began to mine guano from several islands in the southern Caribbean, trying to keep ahead of the Venezuelan government's attempts to stop them or make them sign lucrative contracts. Meanwhile, in 1855 the ill-fated Alfred Benson formed the American Guano Company to mine some newly discovered islands in the equatorial Pacific, this time hundreds of kilometers from land, uninhabited, and rich in guano; and he persuaded Senator Seward (eventually of Alaska fame) to sponsor the Guano Islands Act of 1856, which encouraged entrepreneurs to claim such islands as American territory: the first American overseas territories. Within ten years, areas of the central Pacific were sometimes labelled "American Polynesia" in atlases, as 59 islands, most of them in the Pacific, were claimed and registered with the State Department as guano islands. Even the Hawaiian Navy got into the action, as Kamehameha IV tried to annex Johnston Island to his Kingdom in 1858, and succeeded in annexing Palmyra in 1862.
In 1890, the U.S. Supreme Court decided a case that involved the Guano Islands Act of 1856, and I doubt that any other published opinion contains as many instances of the word guano as this one.

Finally, a reader has emailed to say that the senior Third Circuit judge for whom he clerked, Ruggero J. Aldisert, was stationed on Johnston Island while serving in the U.S. Marine Corps.
Posted at 17:35 by Howard Bashman

An island in the middle of nowhere, and taxes: Today the U.S. Court of Appeals for the Ninth Circuit issued a ruling that brings bad news to the residents of Johnston Island, a United States insular possession. As the appellate court's opinion explains, Johnston Island is "a 591-acre island located approximately 700 miles west-southwest of Hawaii. It is the principal island of the Johnston Atoll, a U.S. military installation and bird refuge." The opinion contains a lengthy discussion of the history of Johnston Island, explaining that it was first claimed by the United States under the Guano Islands Act (the background of which I must now investigate). You can learn more about Johnston Island here, here (with music!), and here.
Posted at 15:01 by Howard Bashman

In dissent, Ninth Circuit Judge Susan P. Graber warns that another summary reversal may be on the horizon: It may be Christmas Eve, but many federal appellate courts today are issuing opinions like there's no tomorrow. One worthy of mention is a Ninth Circuit habeas corpus ruling issued today that sparked a dissenting opinion from Circuit Judge Susan P. Graber in which she observes:
The Supreme Court of the United States has just chastised this court, in the strongest possible terms, for substituting our judgment for that of a state court on matters of federal law, including legal issues that involve an interpretation and application of facts. Woodford v. Visciotti, 123 S. Ct. 357 (2002) (per curiam); Early v. Packer, 123 S. Ct. 362 (2002) (per curiam). We have even less justification for substituting our judgment for that of a state court on matters of its own state law. Indeed, we wholly lack authority to second-guess a state court on a question of state law. Yet that is precisely what the majority does here, in clear contravention of both AEDPA and the Supreme Court’s interpretation of it.
You can access the Ninth Circuit's ruling and Judge Graber's dissent at this link.
Posted at 14:41 by Howard Bashman

Another benefit of being the author of "How Appealing": I'll be having lunch today with National Review Online Contributing Editor, and Case Western Reserve University School of Law Assistant Professor, Jonathan H. Adler, and I will try my best to interest him in making the trek to this place. In the meantime, here's a little Ohio history. "Western Reserve" refers to the fact that the school is located in a region once known as the Western Reserve of New Connecticut, which extended south from Lake Erie to the forty-first parallel, and which runs through Akron, and west 120 miles from the Pennsylvania line. You can learn more about the Connecticut Western Reserve here and here.
Posted at 11:35 by Howard Bashman

"Man won't go to jail for racial slur, but county judge upholds city resident's conviction for April incident": Today's edition of The Lancaster Intelligencer Journal contains this report. Thanks to Mitch Sommers for drawing the latest development in this saga to my attention.
Posted at 10:36 by Howard Bashman

Iowa City native to be nominated to fill Eighth Circuit vacancy: The Gazette of Cedar Rapids, Iowa reported this past Saturday:
The White House said Friday President Bush intends to nominate Iowa City native Steve Colloton to serve on the 8th U.S. Circuit Court of Appeals.

Colloton, 39, has served as a U.S. attorney for Iowa in Des Moines since 2001 and was an assistant to Charles Larson Sr. of Cedar Rapids when Larson was U.S. attorney in Cedar Rapids in the early 1990s.

Colloton later worked in the Office of the Independent Counsel, investigating the Whitewater real estate affairs of Arkansas Gov. Jim Guy Tucker and President Clinton.
(Via the fog of warre.)
Posted at 09:56 by Howard Bashman

In Tuesday's newspapers: The New York Times reports here that "Switch by Republicans Steals Democrats' Gathering Thunder." And here you can access an article entitled "Microsoft Loses a Round to Rival Sun."

The Washington Post reports here that "Attorneys Seek Details Of Malvo's Statements." And here you can access an article entitled "Microsoft Loses Round in Java Case; Judge to Grant Injunction to Sun."

In The Los Angeles Times, David G. Savage reports here that "Bush Gives First Pardons to 7 Men in Minor Cases." And here you can access an article entitled "Microsoft Told to Carry Rival's Java Software; The ruling suggests Sun Microsystems has a good chance of winning its $1-billion antitrust lawsuit."

In The Boston Globe, reporter Lyle Denniston has an article entitled "Sun scores Microsoft legal win; Software giant is ordered to carry rival Java platform."

USA Today contains a column from DeWayne Wickham entitled "Bush can escape grip of right wing's bigotry." Finally, at OpinionJournal, Thomas J. Bray has an essay entitled "After Lott: Bush must reject the racialism of the left as well as the right."
Posted at 06:50 by Howard Bashman

Monday, December 23, 2002
Now available online at Danielle N. Rodier reports here that "Pa. Justices Strike Town's Ban on Nude Dancing." I provided a link to that ruling in a post you can access here. James Ellis wins the distinction of being The National Law Journal's lawyer of the year. According to the article, Ellis played a central role in convincing the U.S. Supreme Court to rule that executing the mentally retarded constitutes cruel and unusual punishment. "Clint Bolick: The Man Behind the School Voucher Win" won the distinction of runner-up.
Posted at 22:56 by Howard Bashman

Circuit Judge Richard A. Posner reminds us that it is very difficult to dismiss a suit for failure to state a claim and that people from India are Caucasians: In an opinion issued today, Seventh Circuit Judge Richard A. Posner explains how difficult it should be to obtain the dismissal of a suit for failure to state a claim:
The civil rules, as both the Supreme Court and this court have emphasized repeatedly, establish a system of notice pleading. The plaintiff is not required to plead facts or legal theories or cases or statutes, but merely to describe his claim briefly and simply. In a suit to collect on a promissory note, for example, all the plaintiff has to allege is that he is holding the defendant's note to him and the defendant owes him $X dollars on it. He doesn't have to specify the statute or common law principle that the defendant has violated by failing to pay him. [citations omitted]
The opinion also explains that "As a detail we note that the reference to racial discrimination is inaccurate, since Shah is an Indian (from India--not an American Indian) and Indians are Caucasians." In that regard, Judge Posner's opinion reaches a conclusion similar to this 1923 ruling by the Supreme Court of the United States.
Posted at 22:53 by Howard Bashman

Circuit Judge Bruce M. Selya's difficult word of the day: First Circuit Judge Bruce M. Selya issued an opinion on Friday, December 20, 2002 that used the word adscititious on page 36 of this PDF file. If you don't know what that word means, click here or here to find out.
Posted at 22:26 by Howard Bashman

Bad day for one current, and one potential future, federal appellate court nominee: Sixth Circuit nominee Jeffrey S. Sutton was on the losing end of a Fourth Circuit ruling in a decision that vacated the trial court's grant of a preliminary injunction in a Lanham Act false advertising case involving competing crabgrass-control products. The three-judge panel, however, did congratulate Sutton for "the sheer complexity of [his client's] explanation as to why this case involves a literal falsity * * * ." You can access the Fourth Circuit's opinion at this link.

Meanwhile, Alfred W. Putnam, Jr., who was rumored as a potential Third Circuit nominee before he recently filed an amicus brief comparing the ACLU to the Taliban, lost a Third Circuit appeal today involving a dispute over an insurance policy intended to cover employee dishonesty. You can access the Third Circuit's ruling at this link.
Posted at 22:12 by Howard Bashman

Good eats it ain't: Longtime readers of "How Appealing" know that this blog has for months been chronicling news of "The Loaf" (see posts here and here), long before accused teenage sniper suspect John Lee Malvo decided he didn't like it, and long before it became known as "the meatless loaf." But, thanks to Malvo, much more attention has been paid as of late to the loaf. Saturday's edition of The Washington Post contained an article entitled "Like It Or Lump It: Jail Officials Treat Media to Meatless Loaf Given Sniper Suspect." And today on Slate, Dahlia Lithwick has a food essay entitled "Loaf Without Parole; The sniper complains about the food in the big house."
Posted at 20:35 by Howard Bashman

Coming soon to "How Appealing": I had the never-ending pleasure of sitting in a conference room for most of the afternoon, and momentarily I must attend even one more holiday party. The good news is that no appellate court has so far today issued any earth-shattering ruling about which you must know immediately. The even better news is that at least a few mildly interesting rulings have issued today, and I will be sure to mention them in posts that will appear on this blog later tonight.

In the meantime, President Bush has issued the first pardons of his Presidency (full details here) and Republican Senators have unanimously selected Senator Bill Frist of Tennessee as majority leader (full details here).
Posted at 17:20 by Howard Bashman

New Justice may cause Supreme Court of Ohio to be more friendly to business interests and right to carry concealed weapons: According to this article published in yesterday's edition of The Cincinnati Enquirer, the Supreme Court of Ohio may become more conservative once a new justice is sworn in next month. Ironically, the new justice's name is Justice O'Connor -- or, to be more precise, soon-to-be former Republican Lt. Gov. Maureen O'Connor.
Posted at 11:21 by Howard Bashman

Sixth Circuit rejects challenge asserted under Title II of Americans with Disabilities Act to State handicapped parking placard fee: The U.S. Court of Appeals for the Sixth Circuit today affirmed the dismissal of a class action "challenging the fee charged by the Commonwealth of Kentucky for the use of a parking placard available to disabled persons." According to the opinion, the plaintiff claimed "that these fees are 'illegal surcharges' under Title II of the Americans with Disabilities Act (ADA)." The Sixth Circuit upheld the trial court's dismissal of the suit, although on different grounds. The trial court had ruled that it lacked jurisdiction under the Tax Injunction Act. The Sixth Circuit, however, ruled that Kentucky had Eleventh Amendment sovereign immunity from liability because the suit alleged a violation of equal protection, rather than a deprivation of due process.
Posted at 09:56 by Howard Bashman

Now available at National Review Online: William J. Bennett has an essay entitled "The GOP's Race Problem...and ours."
Posted at 09:31 by Howard Bashman

Elsewhere in Monday's newspapers: Today's edition of The Los Angeles Times contains an article by reporter David G. Savage entitled "GOP Senators Seek to Stay Course on Race Issues." And columnist Ronald Brownstein offers an essay entitled "Bush and Civil Rights: Words Matter, but Actions Talk."

USA Today contains an editorial captioned "Senate post change presents chance to bridge racial divide." And you can access here an article entitled "Lott furor could spark a GOP shift."
Posted at 08:50 by Howard Bashman

Other news and opinion from here and there: Sunday's edition of the Rocky Mountain News contained an editorial calling on the U.S. Supreme Court to strike down Virginia's ban on cross-burning. The Knight Ridder news service yesterday featured an article entitled "Race emerges as prominent theme in Supreme Court cases." Finally, yesterday's edition of the MetroWest Daily News featured an article entitled "Colleges brace for race decision."
Posted at 00:45 by Howard Bashman

Transcript of Larry King's interview with Attorney General John Ashcroft and Solicitor General Theodore B. Olson available online: You can access a transcript of the interview, which occurred last Tuesday night, at this link.
Posted at 00:40 by Howard Bashman

In Monday's newspapers: The New York Times contains an article entitled "G.O.P. Senators See No Need for Altered Stance on Race." Here you can access an article entitled "Among Blacks, Mixed Feelings on Fall of Lott." Monday's newspaper also includes a news analysis entitled "Enron Ruling Leaves Corporate Advisers Open to Lawsuits." You can access the very lengthy Enron ruling in question at this link.

Monday's edition of The Washington Post contains a front page article entitled "Salt Lake Street Fight; Mormons and 'Gentiles' Duel Over Speech Rights." And columnist William Raspberry has an op-ed entitled "Sins of the Stone Throwers."
Posted at 00:25 by Howard Bashman

Sunday, December 22, 2002
Apparently not everyone enjoyed the Ninth Circuit's quotation of Moby Dick: Steph has this report on the reaction of a colleague who argued and lost the appeal. Also, Steph is looking to hear "testimonials about what makes a good (or bad) editing experience from the author's perspective" in dealing with law reviews for a seminar she is teaching next semester at Georgetown University Law Center entitled "Applied Scholarly Editing." She provides more details and her email address in a blog post you can access here.
Posted at 23:13 by Howard Bashman

'Tis the season for giving to charity: The Supreme Court of Ohio issued a remarkable ruling (Microsoft Word document) this past Friday. As described in this report from The Associated Press, "The Ohio Supreme Court has diverted millions of dollars in punitive damages levied against two insurance companies to a cancer research fund, rather than giving the entire amount to the man who filed the lawsuit."

As the opinion concurring in part and dissenting in part of Chief Justice Thomas J. Moyer explains:
I dissent to the majority's partial distribution of the punitive damages award to a charitable organization. In the context of this case, there is no more appropriate recipient of a partial distribution of punitive damages than the James Cancer Hospital. I am therefore sympathetic to the motives of the majority, but I believe that such a practice, established by this court and absent statutory authorization, is fraught with unintended and undesirable consequences.

My research reveals that every American court that engages in the alternative distribution of punitive damages awards has acted pursuant to statutory authorization. This form of judicial restraint is born of good reason. For the majority's holding today, rendered without precise standards or guidelines, sanctions a judge's unbridled discretion to allocate punitive damages to his or her preferred charity, and leaves open the question of how courts should determine the percentage of punitive damages subject to such distribution.
The court split 4-3 over whether it was proper for a court, in the absence of statutory authority, to order a portion of a punitive damages award paid to charity. Among the dissenting justices was Deborah L. Cook, one of President Bush's nominees to serve on the U.S. Court of Appeals for the Sixth Circuit.
Posted at 22:54 by Howard Bashman

From the January 6, 2003 edition of Newsweek: You can access here a short article entitled "Alberto Gonzales: Waiting for a Date With the Supremes; Alberto Gonzales, Bush's friend and counsel, may be next on the court." And Steven Brill argues here in favor of a "credible but voluntary nationally accepted identification card."
Posted at 12:25 by Howard Bashman

In Sunday's newspapers: Sunday's edition of The New York Times contains an editorial entitled "Judicial Selection After Trent Lott." In the Week in Review section, R.W. Apple Jr. has a report entitled "Aftershocks of Lott's Fall."

The Washington Post contains an article by Charles Lane entitled "Critics of Affirmative Action Temper Their Opposition." In the op-ed department, you can access an essay here entitled "A Year and Holding" about the Guantanamo Bay detainees, here's a piece entitled "Justice Filmed Is Justice Distorted" about the plan to record jury deliberations in a Texas death penalty case, and here you can access an essay entitled "Discomfort, Even Before Lott."

Finally for now, today's edition of The Los Angeles Times contains an article entitled "Many Held at Guantanamo Not Likely Terrorists; Dozens of detainees pose no real threat, but U.S. policies make it nearly impossible to get names off lists. There’s also fear of freeing '21st hijacker.'"
Posted at 10:16 by Howard Bashman

Saturday, December 21, 2002
A coda to Justice Bedsworth's recent column about the man who smuggled pygmy monkeys in his underwear: Back on December 9, 2002, I featured a post that stated:
In Justice Bedsworth's most recent column, he declares "I do not carry monkeys in my underwear": You can access the most recent installment of his always very clever column here.
Earlier this week, the monkey smuggler received his criminal sentence in federal court in Los Angeles. The Los Angeles Times provided this coverage, and Reuters offered this report.
Posted at 22:15 by Howard Bashman

Pennsylvania remains staunchly pro nude dancing: The Associated Press offers this report on a ruling that the Supreme Court of Pennsylvania issued Thursday. You can access the majority opinion here and the dissenting opinion here. Neither opinion was written in rhyme.
Posted at 17:03 by Howard Bashman

"Rehnquist Injury Prompts Retirement Talk": Gina Holland of The Associated Press offers this report.
Posted at 16:56 by Howard Bashman

"Lott's 'soft landing?'": Robert Novak's column posted today at states, among other things:

Senior White House officials say that President Bush plans to renominate U.S. District Judge Charles Pickering of Mississippi to the 5th Circuit Court of Appeals in New Orleans despite the fall of Sen. Trent Lott. Nevertheless, many senators doubt they ever will have a chance to reconsider Pickering's rejection last summer.

With the Senate under Democratic control, a straight party line vote in the Judiciary Committee refused to send Pickering's nomination to the Senate floor. When Republicans regained a Senate majority in the Nov. 5 elections, the White House made clear that Pickering's name would be submitted again.

However, Lott's demise may change that. Lott and Pickering, a former Republican state chairman of Mississippi, are close political allies and longtime friends. In his Black Entertainment Television interview, Lott did not retreat from unequivocal support of Pickering.
Hmm, I'm not quite sure what that all really means. You can access Novak's entire column at this link.
Posted at 16:49 by Howard Bashman

Additional coverage relating to Sen. Trent Lott's decision to step down as Senate majority leader and its impact on federal judicial confirmations: Today's edition of The Clarion-Ledger, a Mississippi-based newspaper, contains an article entitled "Jobs, funds for Miss. at risk." The Independent runs an article from the Copley News Service entitled "Lott gives up leadership post; what's ahead for GOP?" Business Week offers an article entitled "How Lott and Gore Have Opened Doors; Their respective parties had good reasons for seeing these powerful pols off the stage. Now that they're gone, new futures are possible." And, finally for now, The New Republic's issue dated December 30, 2002 contains an article entitled "Closed Sessions: The Senator Who's Worse Than Lott."
Posted at 11:16 by Howard Bashman

In Saturday's newspapers: In today's edition of The New York Times, Adam Liptak reports here that "California May Bar Judges from Joining the Boy Scouts." The latest installment of Linda Greenhouse's "Supreme Court Q & A" -- this one is entitled "Cross Burning and Civil Rights" -- has been posted online today, and you can access it here. Here you can access an article entitled "New Alaska Governor Gives Daughter His Seat." And here's an article entitled "Empathy Shapes a Prosecutor" about James B. Comey, the United States attorney in Manhattan.

In The Washington Post, here is a report entitled "Free Speech and Satan's Web Page; School, Student Clash Over Internet Site." A report from Mississippi is entitled "Miss. Republicans Angry About Lott's Treatment." And this news blurb states that the Supreme Court of Alabama has "reversed a $3.5 billion judgment against Exxon Mobil in a natural-gas royalty dispute."

The Los Angeles Times reports here that "Court Weighs Barring Judges From Scouting; California justices will consider whether Boy Scouts' prohibition on gays provides ethical grounds for banning jurists' involvement." Here's a very interesting article entitled "State court denies review of prayer case; City vows to appeal ban of religious references during meetings to U.S. Supreme Court." An editorial today is entitled "After Lott, Bush's Challenge." Former NYTimes reporter Sam Howe Verhovek has an article entitled "It's All in the Family in Alaska Politics; New Gov. Frank H. Murkowski names his daughter Lisa as his successor to the U.S. Senate. She is seen as more moderate." Finally, The LATimes includes a wire service report that begins, "A law that makes it a crime to possess many of the materials used in manufacturing methamphetamine was declared unconstitutional by the Nevada Supreme Court."

The Boston Globe today reports that "Issue of race to stay in front of reconfigured Senate." And here's an article that begins, "In a ruling released yesterday, the state Supreme Judicial Court declined to say whether Acting Governor Jane Swift must recall legislators to a special session to consider a ballot question that would ban gay marriage."
Posted at 09:38 by Howard Bashman

"How Appealing" traffic report for the week of December 16, 2002: On Monday, December 16, 2002, this blog had 6,120 page views; on Tuesday, December 17, it had 5,566; on Wednesday, December 18, it had 5,342; on Thursday, December 19, it had 5,506; and on Friday, December 20, it had 4,471. Thanks, everyone, for visiting.
Posted at 09:34 by Howard Bashman

Friday, December 20, 2002
Little shop of well-written federal appellate opinions: This blog has, on seemingly random occasions, said so many nice things about the work product of Ninth Circuit Judge Marsha S. Berzon that it is now time to observe that she has turned out in just a short time on the bench to be quite a wonderful federal appellate judge.

Today, for example, her opinions have merited two mentions on "How Appealing." The first mention occurred below in a post entitled "Ninth Circuit decides whale of a case." The second mention occurs now in connection with an opinion that states, toward its outset:
In one case ("the Bryson case"), Sandgathe was convicted in a jury trial of assault in the second degree. That case arose from a trip Sandgathe took in October 1992 to the dentist, reminiscent of the dentist scene in "The Little Shop of Horrors" -- but in reverse.

Sandgathe visited his dentist, Dr. Bryson, to have a tooth bridge removed and repaired. Prior to the bridge removal, petitioner was given a mixture of nitrous oxide and oxygen, and a local anesthetic, Xylocaine.

During the procedure, Dr. Bryson decided it was necessary to give petitioner another Xylocaine injection to stop his gums from bleeding. Sandgathe was concerned about the additional injection, but Dr. Bryson assured him that the procedure was standard. Sandgathe nonetheless became agitated, cursed, stood up, and repeatedly hit and kicked Dr. Bryson. Sandgathe then walked to the reception area and yelled at the receptionist. When Dr. Bryson asked Sandgathe to leave, Sandgathe grabbed Dr. Bryson around the neck.

Dr. Bryson thereupon warned that the police were on their way. In response, Sandgathe tried to ram Dr. Bryson's head through the office’s front door, smashed Dr. Bryson's head between the door and wall, and threw Dr. Bryson outside, where he began beating and kicking Dr. Bryson again. Dr. Bryson suffered a broken tooth, numerous cuts, contusions, bruises, a broken rib, and a collapsed lung.
This, of course, simply proves that having been on the bench forever or being a conservative Republican are not prerequisites to favorable mention on "How Appealing," one of the Web's most evenhanded supporters of excellence in federal appellate decision-making.
Posted at 23:41 by Howard Bashman

Ninth Circuit grants rehearing en banc in case presenting question of scope of psychotherapist-patient privilege: Given that the Ninth Circuit contains Hollywood, California, it's not surprising that the court would grant rehearing en banc to consider the scope of the psychotherapist-patient privilege at federal common law. Also, it probably didn't hurt that the question is subject to a preexisting circuit split. You can access today's order granting rehearing en banc at this link. You can access the now vacated three-judge panel opinion at this link.
Posted at 23:27 by Howard Bashman

Not Dr. Seuss, but still worthy of note: Gary O'Connor of the Statutory Construction Zone blog emails to make sure I hadn't overlooked his favorite passage from today's D.C. Circuit en banc ruling, which I previously wrote about here. The passage in question states: "Rending a few phrases from the broader context of this scheme, see maj. op. at 7-8, the majority tortures the Rule until it confesses."

Over on his blog, Gary writes about today's other D.C. Circuit published opinion, which involves the Pole Attachments Act. Regrettably, I'm still far too immature to write seriously about any decision involving that law.
Posted at 22:58 by Howard Bashman

The jurisprudence of Dr. Seuss: The U.S. Court of Appeals for the Second Circuit issued an unusually large number of decisions today, but one opinion is not to be overlooked. The majority decision, written by Circuit Judge Fred I. Parker, states:
The district court reversed and reinstated the automatic stay, thereby preventing the eviction, on the ground that the antidiscrimination provision precludes a public housing authority from evicting a debtor-tenant from public housing based on nonpayment of discharged, prepetition rent. We agree that the bankruptcy court construed section 525(a) too narrowly. We are therefore faced with a conflict between Bankruptcy Code sections 525(a) and 365 reminiscent of Dr. Seuss's intractable North-Going and South-Going Zax.
And it happened that both of them came to a place. Where they bumped. There they stood. Foot to foot. Face to face.
Dr. Seuss, The Sneetches and Other Stories 26 (1961, renewed 1989). For the reasons set forth herein, we conclude that section 525(a) controls over section 365 and precludes the Brattleboro Housing Authority from evicting debtor-appellee Laura Stoltz. We therefore affirm the judgment of the district court.
You can access the majority opinion here. You can access Chief Judge John M. Walker, Jr.'s dissenting opinion, which does not quote Dr. Seuss, at this link.

Coincidentally, one of my favorite writers, Louis Menand, has an essay in this week's edition of The New Yorker entitled "CAT PEOPLE: What Dr. Seuss really taught us."
Posted at 20:52 by Howard Bashman

Ninth Circuit decides whale of a case: Today the U.S. Court of Appeals for the Ninth Circuit issued an opinion that begins:
"[W]hile in life the great whale's body may have been a real terror to his foes, in his death his ghost [became] a powerless panic to [the] world." Herman Melville, Moby Dick 262 (W.W. Norton & Co. 1967) (1851). This modern day struggle over whale hunting began when the United States granted support and approval to the Makah Tribe's ("the Tribe's") plan to resume whaling.

The Tribe, a traditional Northwest Indian whale hunting tribe, had given up the hunt in the 1920s. In recent years, the Tribe leadership came to regret the cultural impact on the Tribe of the lapse of its whale hunting tradition. As part of a general effort at cultural revival, the Tribe developed plans to resume pursuing gray whales off the coast of Washington State and in the Strait of Juan de Fuca. The worldwide hunt for whales in the years the real-life Captain Ahabs roamed the high seas, however, seriously depleted the worldwide stock of the cetaceans. As a result of the near extinction of some species of whales, what had been a free realm for ancient and not-so-ancient mariners became an activity closely regulated under both federal and international law. This case is the second in which we have considered whether the federal government's approval of the Tribe's plans to pursue once again the Leviathan of the deep runs afoul of that regulation. See Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000).
You can access the complete opinion at this link.
Posted at 18:43 by Howard Bashman

"Will Vermont Face Retaliation in Senate?" The Associated Press has this report.
Posted at 15:33 by Howard Bashman

Replacement U.S. Senator named: The Associated Press is reporting that "Former Sen. Frank Murkowski on Friday appointed his daughter, Republican state Rep. Lisa Murkowski, to serve the remaining two years of his term in the U.S. Senate." You can access the complete AP article here.
Posted at 14:50 by Howard Bashman

En banc D.C. Circuit announces rule governing waiver of issues contingently relevant to criminal sentencing: The majority opinion in today's 6-3 ruling of the en banc U.S. Court of Appeals for the D.C. Circuit begins:
We here address the scope of resentencing after a remand from the court of appeals under the following conditions: (1) the defendant seeks to raise a contention that was contingently relevant in the initial sentencing (but the contingency did not then materialize); (2) defendant did not raise the contention in that sentencing; and (3) the district court's action on remand renders the contention determinative (if it is allowable and correct). * * *

We conclude that the defendant's ability to raise her contingent issue here depends upon whether she could establish "good cause," within the meaning of Rule 32(b)(6)(D) of the Federal Rules of Criminal Procedure, for not having raised it sooner. The district court never considered the good cause issue. Rather than remand to the district court, however, we remand to the panel. If it finds that the merits claim is not a winner, there will be no need for the district court to take the matter up yet again.
While the specific issue may appear a bit arid, the question of waiver allowed the en banc court to discuss broadly when advocates should be required to preserve contingently relevant issues on later pain of waiver:
We see no basis for finding waiver from failure to raise before the appeals court an issue on which the district court never ruled and which never became determinative before the district court. Such a rule would require appellants to include a wide range of purely contingent arguments. Since appeals are only rarely successful--in this circuit, only 12.9% of all appeals result in a reversal of the district court, and nationally, this figure falls to 9.5%, see Judicial Business of the U.S. Courts 102 tbl. B-5 (2000)--the resulting clutter of appellate briefs would be considerable. Although not treating an omission as a waiver will occasionally cause the court to hear an otherwise unnecessary successive appeal, the gain in simplification of initial appeals seems to us well worth it.
Later in the opinion, however, the majority notes:
We understand that district judges' individual experience may incline them to different preferences as between a high degree of assurance that even contingent issues are raised early (at the expense of more time spent either resolving them or at least recognizing that the contingency has not materialized) and a low of degree of assurance (with a higher risk of interruptions for late-raised issues and of successive hearings for a single defendant). District judges may adopt standing orders to guide practitioners. See Fed. R. Crim. P. 57(b) (allowing judges to "regulate practice in any manner consistent with federal law, these rules, and the local rules of the district").
Senior Circuit Judge Stephen F. Williams, who was in dissent on the question resolved en banc today when a three-judge panel originally decided the case, wrote today's majority opinion. Circuit Judge Karen LeCraft Henderson, author of the panel majority opinion, wrote a dissent from the en banc decision. Chief Judge Douglas H. Ginsburg (who was the third judge on the original panel) and Circuit Judge David B. Sentelle joined in Judge Henderson's dissenting opinion today.

Judge Henderson's dissent concludes with a paragraph that states:
So begins the era of de novo resentencing in the D.C. Circuit. Although some other circuits may be satisfied with the choice, I thought we had made a better decision.
You can access today's en banc ruling at this link.
Posted at 14:16 by Howard Bashman

Here's a rather odd Associated Press story about a federal judge: The Associated Press this afternoon has sent across its wire a news article bearing the headline "Judge in Okla. City Bombing Case Promoted." What the article actually reports, however, is that U.S. District Judge Richard P. Matsch will be taking senior status effective July 1, 2003.

Whether taking senior status is in fact a "promotion" I can't say, but most people probably would understand a promotion for a federal district judge to mean either becoming chief judge (which Judge Matsch was from 1994 through 2000) or being confirmed to a federal appellate judgeship.

The AP article goes on to say that "The change will let Bush appoint his seventh federal judge, a lifetime assignment." I wish I understood what "appoint his seventh federal judge" means, as President Bush has appointed and had confirmed by the U.S. Senate far more than six federal judges.
Posted at 12:37 by Howard Bashman

BREAKING NEWS -- Trent Lott has stepped down as Senate majority leader: That's what The Associated Press is now reporting. This article available on the Web site states that Lott is expected to retain his seat as Senator from Mississippi.
Posted at 10:56 by Howard Bashman

"Protest set for Clarence Thomas visit to UGA": Today's edition of The Atlanta Journal-Constitution offers this report.
Posted at 10:54 by Howard Bashman

Supreme Court of Kentucky declines to hold newspaper in contempt for publishing summary of sealed records: You can access yesterday's ruling of the Supreme Court of Kentucky at this link. As an added bonus for readers of "How Appealing," I am pleased to report that yesterday's ruling relies on a Third Circuit opinion that I spent a great deal of time working on during my judicial clerkship. The newspaper in question is The Courier-Journal of Louisville, Kentucky, and it provides this coverage of the ruling in today's edition.
Posted at 10:52 by Howard Bashman

"WHAT, ME WORRY? The Supremes have spoken. Yeah, whatever, says Taft." You can access here an article dated yesterday that begins, "Ohio Supreme Court Justice Paul Pfeifer was flabbergasted."
Posted at 09:02 by Howard Bashman

In Friday's newspapers: In an editorial about the U.S. Supreme Court's pending IOLTA Fifth Amendment takings case, The New York Times today asserts that "If the Supreme Court uses a baseless claim that property is being taken to deprive poor people of legal representation, this nation's commitment to equal justice before the law will be the real loser." And an article reports that "Advocates for women's sports [yesterday] assailed a presidential commission that is expected to recommend changes to Title IX, saying the panel is stacked in favor of universities with top-tier football teams, and would roll back the clock on women's sports."

In The Washington Post, columnist E.J. Dionne Jr. has an op-ed entitled "Thurmond's GOP." The op-ed asserts that "Republican court appointees, from the Supreme Court on down, are busily fashioning a new jurisprudence that uses states' rights as grounds for overturning progressive national legislation."

The Los Angeles Times today contains an op-ed entitled "The Grand (Dragon's) Old Party."

Today's edition of The Boston Globe contains an article that runs under the headline "Conservatives say Lott hurts agenda; They're contending he should resign for their programs to advance."

Finally, The Christian Science Monitor today contains an article entitled "Lott fallout: GOP forced to tiptoe on race; From affirmative action to tax cuts, Republicans face an altered landscape."
Posted at 08:33 by Howard Bashman

Here we go again: The Associated Press is reporting that "Supreme Court Justice Clarence Thomas will deliver the graduation speech at the University of Georgia's law school in May - a decision that has stirred debate among professors and students." The article closes with the following two paragraphs:
Georgia law professor Eugene Wilkes said he and others likely will boycott the speech.

"To say that various law faculty members are appalled and horrified, I think would be a correct assessment," Wilkes said.
While professors and students certainly have the right to boycott Justice Thomas's speech, as someone who has seen and heard many of Justice Thomas's speeches, it is my view that those who choose to miss his speech are making a big mistake.
Posted at 06:46 by Howard Bashman

Thursday, December 19, 2002
"Alabama Chief Justice: Not Bound by U.S. Rulings": Jonathan Ringel of the Fulton County Daily Report provides this coverage of today's very interesting events in the Alabama Judicial Building Ten Commandments monument case.
Posted at 22:18 by Howard Bashman

Opening up another linguistic Can-O-Worms: A reader who is currently clerking for a judge on the U.S. Court of Appeals for the First Circuit has been pleading with me to post his email:
Around here in the great white north, we also get into debates over "pleaded" versus "pled."

Call me old-fashioned, but I come down squarely on the "pleaded" side of the debate. "Pleaded" doesn't lend itself to confusion (i.e., is the past tense of "to plead" spelled "plead" (rhymes with the element) or "pled"?). Moreover, the etymology of "to plead" is entirely different from that of "to lead" (from where we have apparently gotten "pled"). The former is Latinate in origin, the latter Germanic.

But, alas, I am in the minority. Nevertheless, I hold the "preferred" view. See:
So, good readers, what do you think? Should one write: (1) "Last week the defendant plead guilty to assault"; (2) "Last week the defendant pleaded guilty to assault"; or (3) "Last week the defendant pled guilty to assault"? I try to avoid choice number one like the plague, and between choices two and three I slightly favor number three. Let the emails begin.
Posted at 21:00 by Howard Bashman

Dennis W. Shedd has joined the Fourth Circuit: See this link from the Fourth Circuit's Web site.
Posted at 20:45 by Howard Bashman

"Lott's damage will linger": Lynn Sweet, Washington Bureau Chief for the Chicago Sun-Times, offers this news analysis in today's paper.
Posted at 20:43 by Howard Bashman

"But Why Isn't Bernard Law in Jail? (Part 2)": Slate Senior Editor Dahlia Lithwick asks, and answers, that question in a jurisprudence essay just posted online.
Posted at 18:41 by Howard Bashman

Alabama's Chief Justice given deadline to remove all Ten Commandments: The Associated Press offers an article that begins, "A federal judge gave Alabama's chief justice a Jan. 3 deadline to remove a Ten Commandments monument from the state judicial building, but suggested the order may be put on hold during an appeal." The article quotes testimony today from Alabama Chief Justice Roy S. Moore suggesting that he has no intention of removing the monument.
Posted at 17:21 by Howard Bashman

Now available at the U.S. Supreme Court's Web site: Oral argument transcripts for the first week of the U.S. Supreme Court's December 2 through December 11, 2002 argument session are now available online via this link. If you missed seeing in person what it was like having Justice John Paul Stevens preside over oral arguments while Chief Justice William H. Rehnquist was recuperating from knee surgery, these transcripts provide a written record of what occurred.

Two particularly noteworthy cases were argued during the week of December 2, 2002: Scheidler v. National Organization for Women, Inc., involving abortion protestors, RICO, and the Hobbs Act (access transcript here); and Chavez v. Martinez, involving Miranda warnings and qualified immunity (access transcript here).
Posted at 16:14 by Howard Bashman

Ninth Circuit rejects argument that damage cap on recovery for violations of Title VII denies due process and equal protection of the laws: You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link. Because the opinion for the unanimous three-judge panel was written by Senior Circuit Judge Ferdinand F. Fernandez, we can look forward to seeing some words we don't see every day in judicial opinions. And Judge Fernandez does not disappoint. His opinion concludes:
Congress made a laudable decision when it expanded the scope of recovery for those who are subjected to discrimination in employment. We cannot say that it also violated the Constitution of the United States when it chose to limit the amount of damages that could be recovered, even if it did not go on to limit damages recoverable under 42 U.S.C. sec. 1981.

It is not at all surprising that Lansdale wants even more than Congress provided; that is just the working out of one of human nature’s quotidian drives. However, she must be content with her six figure judgment, faute de mieux.
Faute de mieux indeed.
Posted at 14:29 by Howard Bashman

Get me re-write! The Associated Press, in an article you can access here, states that Circuit Judge Theodore A. McKee serves on the U.S. Court of Appeals for the Fourth Circuit. In fact, Judge McKee serves on the Philadelphia-based U.S. Court of Appeals for the Third Circuit. (Thanks to a certain judicial law clerk for drawing this to my attention.)
Posted at 11:25 by Howard Bashman

Douglas W. Kmiec answers "Can an avowedly pro-life Catholic actually serve on" the D.C. Circuit? You can access his op-ed published in today's edition of The Wall Street Journal at this link.
Posted at 11:10 by Howard Bashman

Law of God versus law of man: Sam Heldman this morning mentions that additional interesting developments may be just around the corner in the Alabama Judicial Building Ten Commandments monument case (you can access the federal district court's prior ruling here). Sam also cites to this article from today's edition of The Birmingham News. The newspaper article does leave an incorrect impression in at least one respect -- Alabama Chief Justice Roy S. Moore already has filed an appeal to the U.S. Court of Appeals for the Eleventh Circuit. Chief Justice Moore's notice of appeal was filed on December 10, 2002.
Posted at 10:38 by Howard Bashman

Available at National Review Online: Roger Clegg writes that "the Bush administration weighs a move" on whether to file an amicus brief in the University of Michigan racial preferences in student admissions cases pending before the U.S. Supreme Court.
Posted at 10:33 by Howard Bashman

"Lesbian Ex-Partner Must Pay Child Support": The Associated Press offers this report about a recent ruling of the Superior Court of Pennsylvania. The opinion's author, Judge Joan Orie Melvin, has been mentioned as a possible Pittsburgh-based nominee to fill a vacancy on the U.S. Court of Appeals for the Third Circuit. (I had an oral argument before a three-judge appellate panel that Judge Orie Melvin was chairing earlier this year, and I found her to be quite wonderful at oral argument. Moreover, I felt that way even before the panel issued a ruling in favor of my client.)
Posted at 06:50 by Howard Bashman

Elsewhere in Thursday's newspapers: Today's edition of The Los Angeles Times contains an article entitled, "Lott Issue May Derail Agenda Pressed by Conservatives; Challenge to affirmative action case before the Supreme Court may be jettisoned. Judicial nominations are also seen as imperiled."

To this next item some may be tempted to react, "At least it's not randomly shooting him dead with a high powered rifle!" The Baltimore Sun reports here that "Meatless 'loaf' in Va. jail sickening sniper suspect; Guardian says Malvo wants vegetarian meals." Meat Loaf was unavailable for comment.

Today's edition of The Boston Globe contains an article that begins, "A deal to keep Red Sox legend Ted Williams's body frozen at an Arizona warehouse for the indefinite future could become official as early as tomorrow." The Globe also reports that "The state's highest court yesterday upheld the conviction of a New Bedford man for possessing and distributing child pornography on the Internet, ruling it was illegal even though state law at the time didn't specifically mention computer images."
Posted at 06:42 by Howard Bashman

400,000 page hits: Earlier this morning, "How Appealing" had its 400,000th page hit, seven months and thirteen days after this blog came into existence on May 6, 2002.
Posted at 06:14 by Howard Bashman

"Pickering says dad's nomination not linked to Lott's problems": The Meridian Star contains an article that begins, "U.S. Rep. Chip Pickering said his father's nomination to the 5th Circuit Court of Appeals should not be linked to debate over Trent Lott's future as Senate majority leader." You can access the article here.
Posted at 00:42 by Howard Bashman

In Thursday's newspapers: The Washington Post contains an article entitled "Federal Judge, in Rare Move, Condemns Lott." You can access a link to the condemnation in question via my earlier post, here. In an editorial, The Post questions the wisdom of President Bush's plan to nominate indivuals to fill the eleventh and twelfth seats on the U.S. Court of Appeals for the D.C. Circuit.

The New York Times contains an editorial entitled "Stand Up for Affirmative Action." Relatedly, here you can access an article entitled "Lott Case Complicates White House Debate on Race Issues." An article entitled "A Senate Matter, Hatch Tells the White House" is available here. Could it be that President George W. Bush has yet to grant a pardon or commute a prison sentence? Yes, this op-ed reports.

Finally for now, Warren Richey of The Christian Science Monitor has an article entitled "Once it's on the Web, whose law applies? Australia court ruling applies its libel law to an article published online in the US. An American court differs."
Posted at 00:18 by Howard Bashman

Wednesday, December 18, 2002
Now available online at Here you can access an article entitled "Splitting the Baby; Judge decides two men must share Bonds ball proceeds." And here's an article entitled "Tax-Free Speech? Giant Fort Lauderdale software maker Citrix sues state, says First Amendment bans taxing information companies."
Posted at 23:55 by Howard Bashman

Truly flattered: An article now available at is entitled "The Best of the Web in 2002." The article, which you can access here, identifies a handful of law-related blogs that are described as "blogs that are of true intellectual interest and practical use." I'm pleased to say that "How Appealing" is prominently featured on that list. Congratulations to the four other fine blogs that are also mentioned there.
Posted at 23:42 by Howard Bashman

Too outré? When no relevant law seems to exist, feel free to invoke the following statement found in a decision by Circuit Judge Richard A. Posner that the U.S. Court of Appeals for the Seventh Circuit issued today: "We cannot find a case on the point, but perhaps only because the suggestion is too outré to have been litigated."

If Judge Posner's two opinions issued today (here's the other) leave you hungering for more, you can access his most recent book review, published in the December 23, 2002 issue of The New Republic, at this link.
Posted at 23:35 by Howard Bashman

When it comes to home run history, judge who today decided fate of historic home run ball initially struck out: As an astute reader has emailed to note, in the initial version of Judge Kevin M. McCarthy's opinion deciding the fate of the famous Barry Bonds home run ball, the judge forgot all about Roger Maris.

The decision, as posted at the CourtTV site, begins with this paragraph:
In 1927, Babe Ruth hit sixty home runs. That record stood for seventy one years until Mark McGwire broke it in 1998 by hitting seventy. On October 7, 2001, at PacBell Park in San Francisco, Barry Bonds hit number seventy three. That accomplishment set a record which, in all probability, will remain unbroken for years into the future.
As most baseball fans will immediately note, that's wrong. Ruth's record stood for 34 years, until Roger Maris hit 61 home runs, in 1961. Sometime shortly after the ruling was made, Judge McCarthy apparently corrected this error, as the decision that is now available for download here (Microsoft Word document) begins with this paragraph:
In 1927, Babe Ruth hit sixty home runs. That record stood for thirty four years until Roger Maris broke it in 1961 with sixty one home runs. Mark McGwire hit seventy in 1998. On October 7, 2001, at PacBell Park in San Francisco, Barry Bonds hit number seventy three. That accomplishment set a record which, in all probability, will remain unbroken for years into the future.
Overlooking Roger Maris was inexcusable, all baseball fans surely will agree. But then again, overlooking Roger Maris is nothing new.
Posted at 23:15 by Howard Bashman

African-American man obtains reversal of order dismissing civil rights suit that alleged he was beaten by amusement park staff for "cutting in line" at Magic Mountain: The author of "Blogging the Advance Sheets" emails to alert me to a recent ruling of the California Court of Appeal for the State of California, Second Appellate District, Division Four, that reinstated the lawsuit of an African-American man who alleged he was beaten for having cut in line at Magic Mountain. You can access the court's ruling at this link.
Posted at 20:50 by Howard Bashman

Having [half of] a ball: Sarah Rispin, currently a student at the University of Chicago School of Law, writes:
First let me say how marvelous I think your site is. Definitely a frequently visited site at the U of C law school (which has perhaps one of the greatest concentrations of law geeks in the country).

So I was just listening to NPR, and they did a bit piece on the outcome of the litigation over who got to own Barry Bonds' umpteenth home run baseball. In short, the judge decided they needed to split the baby, apparently making references to King Solomon. The case was announced in San Fran, by a Judge McCarthy, but I'm not totally sure if it was NDCA or California state ct. I couldn't find it on the NDCA site (bc I couldn't even find where they post opinions) but thought that you might be more resourceful, and might want to post this for the edification/amusement of your readers.

This opinion has special significance for some of us at U of C, who were asked just this question (who owns the ball) in a very complicated, but very prescient first year property exam question by Richard Epstein.
First, Sarah, thanks so much for those very kind words. Courtesy of Volokh co-conspirator Stuart Banner, I can seem more resourceful. You can access today's ruling by Judge Kevin M. McCarthy of the Superior Court of California for San Francisco County at this link. For extra credit, readers can access here a NASA Web page entitled "Having a Ball on Mars."
Posted at 20:27 by Howard Bashman

"Gun Victims' Silver Bullet? The new secret weapon in gun litigation." Could there be two Slate jurisprudence essays in one day? Yes indeed! You can access the second, which bears the headline that serves as this post's title, here.
Posted at 20:01 by Howard Bashman

"Judge Issues $301.2M Award Against Iran": You can access today's ruling by U.S. District Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia at this link. And, The Associated Press offers this report on the ruling.
Posted at 17:36 by Howard Bashman

"Law Schools Hatch Rebellion Against U.S. News Rankings": The Wall Street Journal today offers this report.
Posted at 17:16 by Howard Bashman

News from the Tenth Circuit: "Court Upholds the Dismissal of Lawsuit Over Bikini at Pool," The Salt Lake Tribune reports in an article published today. You can access the Tenth Circuit's non-precedential ruling issued on Monday, December 16, 2002 at this link. (Thanks to a reader for emailing to share news of this article.)
Posted at 17:08 by Howard Bashman

Some reaction to today's news from The Washington Post that "Bush Aides Split on Bias Case At U-Mich": Robert Alt offers these thoughts at the "No Left Turns" blog. Among other things, Alt writes: "Side note: to the headline writers at the Post, it is a discrimination case, not a bias case." Well, perhaps the headline writers meant that the affirmative action program is biased against those who don't qualify to receive the preferences it affords? Who knows for sure?
Posted at 16:45 by Howard Bashman

You mean the next time I write for Slate I can simply do a photo essay? Laura Hodes today has a jurisprudence piece on Slate that consists of an interesting photo essay about when the Ten Commandments do and do not give rise to constitutional problems on public property. When I last had the pleasure of writing for Slate, I was stuck with text, although I really did appreciate the addition of a fine Mark Alan Stamaty illustration. His "Washingtoon" comic strip starring Congressman Bob Forehead used to be one of my favorites.
Posted at 15:35 by Howard Bashman

Small bus: Fifth Circuit Judge Jerry E. Smith has sent along via email these (quite funny) remarks relating to the preferred spelling of "de minimis":
The very worst variant of all on the correct phrase "de minimis" is "de minibus." Ouch, it even hurts to look at it, unless one is referring to a small bus.

E.g., Adobe Sys., Inc. v. S. Software, Inc., 1998 U.S. Dist. LEXIS 1941 (N.D. Cal. 1998); Huntington v. Winchell, 8 Conn. 45 (1830); Holman v. Athens Empire Laundry Co., 100 S.E. 207 (Ga. 1919); Johnson v. Lovett, 31 Ga. 187 (1860); Banks v. Darden, 18 Ga. 318 (1855); Ellingham v. Dye, 99 N.E. 1 (Ind. 1912); Kansas v. Durein, 78 P. 152 (Kan. 1904); State ex rel. Morton v. Stevenson, 25 N.W. 585 (Neb. 1885); Blackie v. Cooney, 8 Nev. 41 (1872); Hyatt v. Myers, 73 N.C. 232 (1875); Ohio v. Docterman, 1986 Ohio App. LEXIS 6152 (Ohio App. 1986); Blakeman v. Schlicter, 1928 Ohio Misc. LEXIS 783 (Ohio App. 1928); Warder & Barnett v. Springfield (City), 1887 Ohio Misc. LEXIS 167 (Ohio Common Pleas 1887); Amadon v. Myers, 6 Vt. 308 (1834); Johnson v. Lyford, 29 S.W. 57 (Tex. Civ. App.--Houston 1894).

This just goes to show that there were minibuses long before Volkswagen began building them.
Very well said.
Posted at 15:20 by Howard Bashman

I'm back: I have returned from this afternoon's oral argument at the U.S. Court of Appeals for the Third Circuit in a case I recently described here. It was a very interesting oral argument, and I was pleased with my part of it (not to mention the profuse praise that Circuit Judge Jane R. Roth kindly bestowed on me for agreeing to accept the Court's appointment to serve as amicus in support of affirmance of the federal district court's en banc disciplinary order that was at issue in the appeal).

Reporters from both The Legal Intelligencer and The Tribune-Review of Western Pennsylvania were present, so chances are that you will be able to read about the oral argument from some conceivably more objective sources soon.

The oral argument presented two firsts for me -- one of the judges was participating via video hook-up, and the start of the argument was postponed for five to ten minutes while the court staff worked to repair the audio recording equipment, which failed to work when the judges first took the bench. Also, on the way out of the Courthouse, I had the pleasure of saying hello to Third Circuit Chief Judge Edward R. Becker and soon to be Third Circuit Chief Judge Anthony J. Scirica, who were walking back into the building together. Regular blogging will resume momentarily, once I eat a little something for lunch.
Posted at 15:03 by Howard Bashman

Eighth Circuit affirms order that May not be doing that: Today a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit issued a per curiam decision that begins:
May Company has submitted an expedited appeal of a preliminary injunction that, with limited exceptions, bars May from advertising and selling women's clothing under its new label entitled "be." May, which operates eleven department stores nationwide, introduced the "be" clothing line in June 2002 to target women aged 18 to 30. Bebe Stores, an upscale clothier with a customer base of women aged 19 to 30, sued May for trademark infringement, unfair competition, and trademark dilution, and also sought a preliminary injunction. The District Court granted the injunction and required Bebe to post a bond of $3 million. We affirm the injunction and remand for reconsideration of the amount of the bond.
You can access the ruling at this link.
Posted at 11:26 by Howard Bashman

To not split infinitives: Received an email from Fifth Circuit Judge Jerry E. Smith this morning entitled "Units of time or value and the genitive possessive." The email states:
Getting this one wrong is as bad as splitting an infinitive. There should be no legitimate split of authority on this plain rule of grammar (as there is, for example, on whether "none" is singular or plural). "The idiomatic possessive should be used with periods of time and statements of worth." [example given: "six months' confinement"]

-- Bryan A. Garner, A Dictionary of Modern Legal Usage 674 (Oxford 2d ed. 1995)
I always am pleased when my understanding of how the English language works turns out to be correct.

Equally pleasing is when my understanding of Latin turns out to be correct. My study of Latin for years at one of Philadelphia's wonderful Quaker schools hasn't been totally wasted on me, I'm happy to report. Thus, on the question of "de minimis" versus "de minimus," no one thinks that the second is even arguably acceptable. Here's a sampling of reader mail:
There should not be dispute. "De" in latin takes the ablative case. "De minimis" tranlates to "small things" or "smallest things." "-is" is the proper ablative plural ending, and "-us" is nominative case anyway, which makes no sense.
Another reader writes:
Aw come on Howard. Although "de minimis" might have morphed into "de minimus" in some common usage, you must know that it is from the Latin "de minimis non curat lex" which means "The law does not concern itself with trifles." See for other examples.

The Latin preposition "de" means "about" or "concerning." "De" is a preposition that requires the ablative case of its objects. In this example, the object of de is "minimis," an adjectival noun meaning small, little or unimportant. See and The long and the short is that the De demands the Minimis. It is a sine qua non.

So, though "de mimimus" may be defensible by usage, it is indefensible Latin.
An impassioned reader writes:
It's de minimis, for Pete's sake. If 14,000 people said "The letter was addressed to Bill and I," would that make it correct? De minimus is just plain incorrect Latin, no matter how many people might prefer it.
A reader located within the friendly confines of the First Circuit writes:
When I was clerking in the SDNY, I used to come across this quote all the time:

"The burden of proof that must be met to permit an employment-discrimination plaintiff to survive a summary judgment motion 'at the prima facie stage is de minim[i]s.'"

Chambers v.TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994) (original modification) (quoting Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)).

Looks like another intra-circuit split, along with expressions based on the old genitive case (see Chicago Manual of Style s. 6.21) like "ten years' imprisonment."
Finally, Sasha Volokh sends along the following words of wisdom:
On the de minimis question -- there is room for disagreement on the pronunciation of "amicus," since (1) we're not exactly sure how words are pronounced and (2) there are many possible Latin dialects to choose from, and it's not clear which one should be authoritative here. But there is NO room for disagreement on "de minimis." "De minimis" is the only correct way of saying it; "de minimus" is clearly and unquestionably wrong. I think it's because people who don't know Latin know that Latin words end in "us." But "de minimis" is a form called the ablative plural; you don't use "us" after the preposition "de."
Plus, you can access Sasha's additional comments on this point at The Volokh Conspiracy. And now I return to final preparations for my Third Circuit oral argument later today.
Posted at 10:01 by Howard Bashman

Third Circuit Judge writes impassioned letter to the editor regarding Trent Lott controversy: You can access the letter of Third Circuit Judge Theodore A. McKee to the editor of The Philadelphia Inquirer, published in today's edition of that newspaper, at this link.
Posted at 09:40 by Howard Bashman

"Farmers Fear Court Ruling on Plowing": The Associated Press offers an article this morning that begins, "Farmers across the West are afraid they are losing control of their land after the Supreme Court upheld fines against a California grower for plowing wetlands without federal permission." Meanwhile, yesterday's edition of The Sacramento Bee contained an article entitled "Tsakopoulos loses battle in a tie vote; Fine is affirmed in wetlands case." The article explains, "In a telephone interview, Tsakopoulos said the irony of his association with [Justice Anthony M.] Kennedy did not escape him. 'One of my friends called this morning and said it's a pretty expensive friendship I have with Justice Kennedy,' Tsakopoulos said."
Posted at 06:40 by Howard Bashman

In Wednesday's newspapers: Today's edition of The Washington Post contains a front page article entitled "Bush Aides Split on Bias Case At U-Mich.; Administration Weighs Taking Stand on Issue."

In The New York Times, Neil A. Lewis has an article about U.S. District Judge Charles W. Pickering, Sr. entitled "Upheaval on Lott Is Said To Hurt Chances of Judge Seeking an Appeals Seat." And Adam Liptak reports here that "Arkansas Judge Sues a Disciplinary Panel."

Today's edition of The Boston Globe contains an article that begins, "In a decision that defense lawyers say will make it easier to lock up convicted sex offenders - possibly for life - after they have completed their sentences, the state Supreme Judicial Court yesterday said judges may commit sex offenders to state custody indefinitely if it is reasonable to expect they will attack again." Today's Globe also contains an op-ed entitled "Brother Lott's real record."

In The Los Angeles Times, Law Professor Jonathan Turley has a commentary in which he opposes the idea of having cameras record jury deliberations. And you can access here an article entitled "Inmate Whose Transplant Caused Furor Dies; His body apparently rejected new heart, officials say. Operation was publicly funded."

Finally, USA Today reports here that "A commission appointed by the Bush administration is poised to propose profound changes in Title IX, the federal law that forbids sex discrimination at schools and universities receiving federal funds."
Posted at 06:26 by Howard Bashman

Tuesday, December 17, 2002
"Cheney's Win Vs. GAO Threatens Congressional Oversight": Stuart Taylor Jr. writes, in his National Journal column for this week, that everyone has reason to be concerned about the U.S. District Court for the District of Columbia's recent ruling in the GAO vs. Cheney case.
Posted at 22:24 by Howard Bashman

Now available online via Just one item of note tonight. Here's an article entitled "Curious Mom Faces Credit Report Trial." I reported on this Eighth Circuit ruling back on December 5, 2002 in a post entitled "Too much information?" that you can access here.
Posted at 22:00 by Howard Bashman

Ninth Circuit to diplomats -- don't break the law when dealing with your household staff: A unanimous three-judge Ninth Circuit panel today rejected the defenses of consular and sovereign immunity raised by high-ranking South Korean consular officials who had been sued by their "domestic servant" for alleged violations of federal and state law. You can access the court's opinion at this link. Some more information about South Korea is available here via the CIA.
Posted at 21:26 by Howard Bashman

On grammar and pronunciation: Thanks to Sasha Volokh for linking to my recent posts about grammar and pronunciation. You can access my post about grammar here, and his here; my post about pronunciation here (see my final paragraph), and his here. Both of Sasha's posts resulted in comments to him from readers, which he features as updates to his original posts, so be sure to take a look.

On the issue of gerunds taking a possessive noun (e.g., "a prisoner had a prior conviction that resulted in his being incarcerated," where being incarcerated is the gerund), Sasha focuses on the sentence "Imagine a child losing his hearing." I especially like (well, not really) that sentence because it features two gerunds. To be consistent, the sentence should read either "Imagine a child's losing his hearing" or the even more awkward, and obviously incorrect, "Imagine a child losing him hearing." The best fix, of course, is to eliminate the first gerund so that the sentence reads "Imagine a child who is losing his hearing."

The issue of whether the word years should take an apostrophe to denote possessive case in the sentence "The defendant was sentenced to ten years imprisonment" spawned some interesting email. I fall into the pro-apostrophe camp, so I would write that sentence as "The defendant was sentenced to ten years' imprisonment." A reader associated with the U.S. Court of Appeals for the Eighth Circuit emailed to say:
A fun FYI: we have an intra-circuit split in the Eighth Circuit on this grammatical issue. Some judges believe that the apostrophe should be used, some judges believe that the apostrophe should not be used, and each camp is rather possessive about its position. To avoid controversy, when stating a sentence in a criminal case, I usually write "the district court sentenced John Doe to ten years in prison and five years of supervised release."
For two other examples that illustrate the difference of opinion that exists throughout the federal appellate judiciary on this point, Eleventh Circuit Judge Per Curiam agrees with my approach in the first sentence of this decision issued today, while Third Circuit Judge Theodore A. McKee goes without the possessive in a sentencing sentence found toward the bottom of the second page of this PDF file.

On the issue of how to pronounce "amicus," there was no end to the fun emails that I received. As is often the case, the most helpful email came from "How Appealing" reader Tony Mauro:
For what it's worth, I asked a Latin scholar about this pronunciation question for a Courtside item in January, 1997. I subsequently was told that in fact, Breyer's pronunciation is favored in Britain. Since Breyer is an avid anglophile, his adoption of the British pronunciation is no surprise. Here's the item I wrote:

You Say A-my-cus, I Say A-me-cus

Speaking of amicus curiae briefs, the proliferation of Supreme Court pronunciations of the first word of that Latin phrase has grown substantially in recent months.

The usual division is into two camps-those who pronounce it a-ME-cus and those who are partial to AA-ma-cus. But lately, Justice Stephen Breyer has added a bizarre third pronunciation to the mix: a-MY-cus. During arguments Jan. 15 in Lambrix v. Singletary, No. 96-5658, Breyer said "a-MY-cus" so many times that the hapless lawyer before him, solo practitioner Matthew Lawry, adopted the same, clearly incorrect pronunciation just to be accommodating.

So what's the correct pronunciation anyway? William McCarthy, a professor in Catholic University's Greek and Latin department, hedges a bit, allowing that "there's not a degree of unanimity, no 800 number you can call up for the correct pronunciation of Latin." There are shadings in Latin, with classical pronunciations differing slightly from church pronunciations. The fact that the language hasn't been used in everyday speech for a couple of centuries doesn't help, says McCarthy.

And lawyers, McCarthy says, are "notorious for mispronouncing Latin phrases."

Having said all that, though, McCarthy declares that Breyer's pronunciation is patently wrong. But the other two usual pronunciations are also somewhat off the mark, it turns out. McCarthy says that if he had to lay down the law, the official pronunciation would be AH-me-kous.
Tony also drew my attention to William Safire's On Language column from Sunday, March 23, 1997, in which Safire provides the following quotes from Bryan Garner, who was editor of the Dictionary of Modern Legal Usage and was chosen to edit the seventh edition of Black's Law Dictionary:
"Justice Breyer has adopted an Anglo-Latin pronunciation," Garner explains. "It will make any Latin teacher apoplectic. But it has English and American history behind it, and that, in the end, matters more than how Cicero might have mouthed the phrase."
Thanks, as always, Tony for your very helpful email.

Others had this to say:
1. I read your entry regarding the pronunciation of 'amicus' and I wanted to respond. When I was in law school, I took an informal survey of 20 law professors at my school. I think it was a 12-8 split (12 chose the am-MEE-cus pronunciation, 8 for the AM-ick-cus); none chose the am-MY-cus pronunciation.

Like you, I prefer the 'AM-ick-cus' pronunciation; it just rolls off the tongue better.

2. Hi, on your post this morning, Breyer's pronunciation is the correct one, if you want to pronounce the word as the Romans would have. The Latin "I" is always long. aMEEcus at least keeps the stress on the correct syllable. So on this score, your favored pronunciation strikes out.

But not to fear, in law Latin is almost never pronounced correctly since most lawyers these days never took Latin. If only they had known in high school that two years of Latin would be so helpful in their law jobs!

3. If you want to talk pronunciation, get real latinists started on the correct way to pronounce "certiorari." I'd love to see what people say about that... In any event, I too default to "AMickus."

4. Your post re: Latin pronunciation just confirmed for me the truth of a statement in the November 1995 House Legislative Counsel's Manual of Drafting Style, pg. 3: "[When drafting a bill] USE ENGLISH RATHER THAN LATIN.---If you have a choice, use the English word rather than the Latin. Those few people who have had Latin in school can't agree on pronunciation."

5. My property prof. was a graduate of Duke, and he would emphasize the purely conventional nature of Latin pronunciation by telling us about a professor of his, who used to pronounce "res judicata" with a thick Georgian accent as as "REES JOO-di-kay-ta." After hearing this a few times he said to his professor, "Isn't it ray-ss judi-kahta?" The professor turned on him: "Do YOU know any ancient Romans? No? All right then, you don't know HOW it's supposed to be pronounced."
Finally, a law clerk serving on the Seventh Circuit writes:
While you're addressing the pronunciation of amicus (I'm in the first camp, BTW, but not for any defensible reason), perhaps you could address question of whether "de minimis" or "de minimus" is the proper spelling. The former outnumbers the latter by about 83,000 to 14,400 on Google, but both versions populate our case law and both seem to have the sanction of popular usage.

It would be best if courts would pick one spelling and stick to it, lest our Boolean searches be needlessly complicated by the spelling variance
I favor de minimis, but maybe this disagreement is too, um, inconsequential to merit a definitive resolution.

Thanks to everyone who emailed about pronunciation and grammar today.
Posted at 21:21 by Howard Bashman

Mickey Kaus discovers the amazing wonders of email: Could it be, as Mickey observes here, that people of influence email bloggers in an effort to disseminate information to other people of influence? If you only knew the half of it.
Posted at 20:44 by Howard Bashman

"Bill Of Rights Pared Down To A Manageable Six": The brand new issue of The Onion offers this report.
Posted at 19:53 by Howard Bashman

Slate's explainer addresses the question "Why Does the Ku Klux Klan Burn Crosses?": Click here for the answer.
Posted at 16:32 by Howard Bashman

Attention Abner J. Mikva: When former D.C. Circuit Chief Judge Abner J. Mikva was recently testifying before a subcommittee of the Senate Judiciary Committee about the supposed preeminent importance of the D.C. Circuit, he contrasted the D.C. Circuit with the Seventh Circuit and said that the Seventh Circuit decides car accident cases while the D.C. Circuit doesn't. Former Chief Judge Mikva may wish to reconsider his testimony in light of this ruling that the D.C. Circuit issued today.
Posted at 14:59 by Howard Bashman

Ninth Circuit today grants rehearing en banc in case that produced multi-million-dollar international arbitration award: You can access the Court's order granting rehearing en banc at this link. You can access the now-vacated three-judge panel opinion upholding the arbitration award at this link. You'll notice that the appellant has two noteworthy attorneys on its side. The panel's opinion was written by Judge Jane A. Restani of the United States Court of International Trade, sitting by designation. Because she was sitting on the Ninth Circuit panel by designation from another court, Judge Restani does not qualify to participate further in the Ninth Circuit's en banc consideration of this matter.
Posted at 13:39 by Howard Bashman

Tonight on "Larry King Live": is reporting here that Attorney General John Ashcroft and Solicitor General Theodore B. Olson will be tonight's guests on the "Larry King Live" program. Fans of the FOX drama "24" will need to fire up the VCR or the Tivo or something.
Posted at 13:37 by Howard Bashman

Others provide feedback on the Seventh Circuit's recent Web site redesign: Recently, I noted that the U.S. Court of Appeals for the Seventh Circuit had redesigned the front page of its Web site. The old design was mostly text and links. The new design looks more fancy and is more pleasing to the eye. I wrote in my original post:
What makes for a useful appellate court Web site? (That question was directed primarily at Rory Perry, the blogging Clerk of the West Virginia Supreme Court of Appeals -- a court that has its own new opinion blog.)
Happily, Rory Perry has responded to my question, and you can access his comments here. Another even more critical review of the Seventh Circuit's newly redesigned Web site can be found here, on the blog Res Judicata. This guy must really know what he's talking about, because I can't make heads or tails of the technical aspects of his criticism. Perhaps sometime in the near future, I will devote an installment of my monthly appellate column to answering the question "What makes for a useful court Web site?" But not next month, because I've already promised then (at the close of this month's column) to update the continuing controversy over the status of "non-precedential" federal appellate court rulings.
Posted at 13:11 by Howard Bashman

Ninth Circuit "asked to reconsider guns ruling": The Associated Press provides this report, which suggests that a petition for rehearing en banc has been filed with the U.S. Court of Appeals for the Ninth Circuit in the case that produced that court's recent Second Amendment ruling. (The Ninth Circuit's electronic docket confirms that a petition for rehearing en banc was filed by the plaintiffs yesterday.) The AP article incorrectly recounts the three-judge panel's vote on the case, which I would characterize as 2-0 with one abstention instead of 2-1. Meanwhile, today's edition of The Washington Times contains an article entitled "Gun-rights ruling seen as dare to high court."
Posted at 11:25 by Howard Bashman

Now available at National Review Online: Guest commentator Timothy P. Carney writes that the White House has now decided against re-nominating Charles W. Pickering, Sr. to fill a Fifth Circuit vacancy. Carney's essay proceeds to explain why this may be rather bad news for some of the conservative judicial nominees whose names will be resubmitted to the U.S. Senate next month. Meanwhile, Joel Mowbray asks "Will a Lott exit mean a Democratic Senate?"
Posted at 10:39 by Howard Bashman

On deck in the days ahead: Tomorrow at 1 p.m. eastern time, I have the pleasure of presenting oral argument to a three-judge panel of the U.S. Court of Appeals for the Third Circuit in a case known as In re Robert B. Surrick. The appellant seeks review of an order of the en banc U.S. District Court for the Eastern District of Pennsylvania that imposed on him a thirty-month suspension from the practice of law as reciprocal discipline on account of the Supreme Court of Pennsylvania's decision that suspended Mr. Surrick from the practice of law for five years.

The Third Circuit appointed me to serve as amicus in support of affirmance of the district court's disciplinary order. You can access my appellate brief here, and you can access the district court's opinions here (majority opinion), here (dissent), and here (another dissent). The Third Circuit panel hearing the appeal consists of Circuit Judges Jane R. Roth and Julio M. Fuentes and Senior Third Circuit Judge Robert E. Cowen. The oral argument will take place in The Albert Branson Maris Courtroom in Philadelphia.

Then, on Thursday at noon, I will have the pleasure of co-chairing a luncheon meeting of the Appellate Courts Committee of the Philadelphia Bar Association. The committee's guest will be Pennsylvania Superior Court Judge Richard B. Klein. Judge Klein, a graduate of Harvard Law School, served for twenty-eight years as a trial judge in the Court of Common Pleas of Philadelphia County until his election to the Superior Court in 2001 and was the youngest judge in the history of Pennsylvania when he first assumed the bench.

While I have tomorrow's oral argument and mention of Harvard Law School in mind, let me raise an issue of pronunciation. When I take the podium tomorrow after appellant's opening oral argument, I will introduce myself at the outset by stating: "May it please the Court, my name is Howard Bashman, and I am Court-appointed amicus in support of affirmance." The word "amicus" can be pronounced at least three ways: "am-MEE-cus"; "AM-ick-cus"; or "am-MY-cus." The only person I've ever heard pronounce the term "am-MY-cus" is Justice Stephen G. Breyer, so maybe that's a New England or Harvard pronunciation. I probably favor the second of these three pronunciations, but I'm open to persuasion if anyone wishes to convince me otherwise.
Posted at 10:03 by Howard Bashman

In Tuesday's newspapers: In today's edition of The New York Times, Dahlia Lithwick has her second ever NYTimes op-ed. Today's effort is entitled "Personal Truths and Legal Fictions," and it discusses Justice Clarence Thomas's recent comments at the U.S. Supreme Court's cross-burning oral argument. Linda Greenhouse reports here on yesterday's developments at the Supreme Court. Here's an article entitled "Black Republicans Speak of Their Outrage at Lott." And here's an article entitled "Sniper Case Will Be First Test of Virginia Antiterrorism Law."

In The Los Angeles Times, David G. Savage has this report on yesterday's news from the U.S. Supreme Court. And you can access here an article entitled "State High Court Endorses Davis' Denials of Parole; The 5-2 decision bodes ill for convicted killers who hope to be freed during governor's term."

Lyle Denniston of The Boston Globe reports here that "Justices seek advice in abortion case; Query US officials on protection rights for clinic doctors."

In The Washington Post, you can access here a complete transcript of Senator Trent Lott's interview yesterday on the BET network. Toward the end of the transcript Senator Lott is asked about his support for Fifth Circuit nominee Charles W. Pickering, Sr. Senator Lott's support for Judge Pickering is also mentioned here, in a front page article entitled "Bush Won't Resist Leadership Change; President's Agenda Feared in Jeopardy."

Finally for now, OpinionJournal contains an essay entitled "Peering at the Jury; Broadcasting deliberations would be of value." The author of the piece, however, isn't exactly a disinterested outside observer.
Posted at 06:35 by Howard Bashman

Monday, December 16, 2002
Now online at From The Legal Times (free registration required), an article entitled "Lawyers on the Front Lines; Solicitor General plays unusual role in defending terror cases"; a profile by Jonathan Groner entitled "Leitch: A Conservative Choice for Deputy; New No. 2 to Alberto Gonzales has built solid reputation at Office of Legal Counsel, at Hogan, and at FAA"; and an article entitled "Secrecy Fights Loom Large for Bush; Suit over energy task force just one of many disputes."

Meanwhile, you won't need to undergo any registration to access this article entitled "California Justices Back Governor on Parole Policy; State high court sets 'extremely deferential' standard on reviewing governor's decisions."
Posted at 22:29 by Howard Bashman

Nick Daum is back from his field trip to the U.S. Supreme Court, where last Wednesday he saw the cross-burning oral argument: Yale Law School third year student Nick Daum has returned to blogging fresh from his trip last Wednesday to view the cross-burning oral argument at the U.S. Supreme Court. In a very interesting post that you can access here, Nick writes that "This liberal law student is something of a [Clarence] Thomas fan from now on." Nick's post also offers some some insights into Justice Thomas's remarks during the cross-burning oral arguments (press coverage of which you can access via my prior posts here and here, plus don't forget Dahlia Lithwick's most excellent coverage) that differ substantially from what the mainstream press has been reporting. It will be interesting to see whether Nick's take on Justice Thomas's remarks proves to be more accurate than the views of the professional Court-watchers. Stay tuned.
Posted at 21:52 by Howard Bashman

Feeling possessive about an interesting Ninth Circuit decision issued today: One skill that a good appellate lawyer should have is a mastery of written English. It's rare that I devote a blog post to the question of grammar, but this is one such instance.

I was willing to overlook Circuit Judge Pamela Ann Rymer's statement in her dissent today in a death penalty case that a prisoner had decided to "forego" an appeal, when the better word to use was "forgo." But another Ninth Circuit ruling issued today, in a very interesting case involving the U.S. Sentencing Guidelines and the consequences of a convicted criminal's escape from having to serve an earlier sentence of imprisonment, has put me in a grammatical mood.

Senior Circuit Judge John T. Noonan wrote the majority opinion, which began:
The narrow issue before the court is whether the district court correctly increased Stanley Dale Pearson's sentence for bank robbery and escape because he had a previous conviction that resulted in him being "incarcerated." See U.S. Sentencing Guidelines sec. 4A1.2(e)(1) (2001) (U.S.S.G.). Within the fifteen years before he committed the current crimes, Pearson had been sentenced to ten years imprisonment. Under the usual circumstances, this sentence would have been counted under U.S.S.G. sec. 4A1.2(e)(1). Pearson had escaped that confinement and so was not physically incarcerated during the critical period. We hold that the time during which Pearson was on escape status under his 1980 conviction was correctly counted as a period of "incarceration" under sec. 4A1.2(e)(1).
The first issue I have with this passage arises in the first sentence, where Judge Noonan writes "* * * because he had a previous conviction that resulted in him being 'incarcerated.'" The phrase "him being 'incarcerated'" violates the general rule that the noun preceding a gerund (here, the gerund is "being incarcerated") should be in the possessive, rather than the objective, case. Of course, sometimes this general rule doesn't work, but in Judge Noonan's sentence it works just fine.

My second and final concern that leaves me feeling possessive stems from the second sentence of the opinion. There, in relevant part, Judge Noonan writes that "Pearson had been sentenced to ten years imprisonment." I'm fairly certain that the noun "years" should also be possessive, so that the sentence would read "Pearson had been sentenced to ten years' imprisonment." Had Judge Noonan decided to forgo only one opportunity for the possessive case in the first two sentences of his opinion, it wouldn't have been worthy of mention. But, when he decided to forgo two opportunities, well here we are.

As an aside, Circuit Judge Marsha S. Berzon offers a very compelling dissent in support of her view that, "using all rather than some of the clues available in the pertinent Guidelines sections, I conclude that there was a discrete decision made that for purposes of this one provision only, actual incarceration should count and escape status should not." Although she would hold that an escaped convict could get out of jail free from negative consequences under the Guidelines section at issue in today's ruling, her approach seems to make more sense than the understanding the majority puts forth. And I say that based on the substance of each opinion's reasoning, rather than based simply on each opinion's grammar.
Posted at 21:03 by Howard Bashman

Senator Trent Lott and the Fifth Circuit nomination of District Judge Charles W. Pickering, Sr.: During Senator Trent Lott's interview tonight on the BET network, he was questioned about his support for the Fifth Circuit nomination of U.S. District Judge Charles W. Pickering, Sr.
Posted at 21:02 by Howard Bashman

"Bush Opinion Sought in Abortion Case": The Associated Press has agreed with my suggestion earlier today that the U.S. Supreme Court's request for the Solicitor General's views on whether the Court should review the so-called "Nuremberg Files" anti-abortion protestor Web site case was a newsworthy development.
Posted at 20:38 by Howard Bashman

"Neb., Kan., Settle Water Lawsuit": The Associated Press has this report about the resolution of a case now pending before the U.S. Supreme Court.
Posted at 15:05 by Howard Bashman

Arizona inmate who wishes to forgo challenge to his death sentence can't do so, Ninth Circuit rules: A divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today decided to stay an appeal in the habeas corpus death penalty case of an Arizona prisoner instead of dismissing the appeal, in accordance with the wishes of the prisoner, who wants to be executed. An order written by Senior Circuit Judge Warren J. Ferguson explains that an eleven-judge en banc panel of the Ninth Circuit is currently considering whether the U.S. Supreme Court's ruling in Ring v. Arizona should be applied retroactively on collateral review. The order explains:
It would serve no rational purpose for this court to engage in further litigation which may or may not prove to be decisive until such time as the retroactivity of the unconstitutional death penalty statute of Arizona has been conclusively determined. One cannot surmise that if Ring must be applied retroactively that the State of Arizona would wish to execute a person whose death penalty was unconstitutionally imposed even though that person waived his right to life and even if that waiver was competently and intelligently made.
Circuit Judge Harry Pregerson, who is a member of the eleven-judge panel considering the question of Ring's retroactivity (and who presumably would know how that eleven-judge panel intends to rule, as en banc oral argument recently occurred) joined in the order staying the appeal pending the en banc panel's ruling.

Circuit Judge Pamela Ann Rymer dissented. She wrote:
In a nutshell: Through counsel, Comer filed an appeal from the district court's denial of his habeas petition February 13, 1998. On April 6, 2000 the state filed a motion to dismiss Comer's appeal based on letters Comer had written to the Arizona Attorney General and the state trial judge indicating that he did not want to be represented by counsel and that he wanted to have his appeal dismissed. Comer confirmed this in his own motion to this court on April 12, 2000.

On June 6, 2000 we remanded for an evidentiary hearing on whether Comer is competent to waive his appeal, and if so whether his decision is voluntary. Comer v. Stewart, 215 F.3d 910 (9th Cir. 2000). We held the motions to dismiss in abeyance "until the district court determines the validity of Mr. Comer's purported decision to withdraw his appeal to this court." Id. at 918.

The district court went to extraordinary lengths to comply with both the letter and spirit of our mandate. It assured appointment of qualified experts, held an extensive evidentiary hearing at which Comer testified, went on a site visit, and made comprehensive findings and conclusions in a 90-page order issued on October 15, 2002. The court determined that Comer's decision is competent and has been voluntarily made. The state has requested that we set a briefing schedule, which Comer's habeas counsel does not oppose, and special counsel for Comer has also requested that we rule on the pending motions.

Entirely on its own, the majority has decided to wait to see whether Ring v. Arizona, 122 S.Ct. 2428 (2002), is retroactive on collateral review. However, what happens to Ring, and whether it is or isn't retroactive, has nothing to do with Comer's competence to forego further review and the voluntariness of that decision. Even counsel appointed for Comer recognizes that briefing can proceed in spite of uncertainty about the effect of Ring.

We remanded for the district court to hold an evidentiary hearing on Comer's competence and the voluntariness of his decision -- and it did. The "district court determine[d] the validity of Mr. Comer's purported decision to withdraw his appeal to this court." This is what we held the motions by Comer and the state in abeyance for.

Comer, the state, and the public are now entitled to a ruling. I therefore vote to set a briefing schedule and date for oral argument; and dissent from the order refusing to do so.
Just one more example of what makes the Ninth Circuit so special -- a prisoner on death row can't accept the result of his death penalty trial even if he's mentally competent and that's what he wishes to do.
Posted at 13:51 by Howard Bashman

The Associated Press finds not much news to report at the U.S. Supreme Court today: Here you can access an article entitled "Supreme Court Reaffirms Hanukkah Display"; here, "Supreme Court Turns Down Equal Pay Case"; and at the close of this article, Gina Holland summarizes one more cert. denied.

My recommendation to The AP employee who monitors this blog for leads -- do a story on the Court's call for the Solicitor General's views in the anti-abortion Web site Nuremberg Files case. I had this and this to say about the Ninth Circuit's 6-5 en banc ruling in that quite fascinating true threat-First Amendment case back when the ruling first issued.
Posted at 13:34 by Howard Bashman

Odd now, even then: In response to my post from earlier today entitled "Another reason why courts of last resort are designed to have an odd number of judges," a reader responds, "Not so fast." And, of course, the reader is correct. As explained in detail here, "The Judiciary Act of 1789 established a Supreme Court with one chief justice and five associate justices." Over the next eighty years, the number of authorized Supreme Court Justices continued to change:
The size of the Supreme Court grew to accommodate the establishment of new circuits as the nation expanded. In 1807 a seventh justice was added to the court, and in 1837 an eighth and ninth justice joined the Supreme Court. The size of the Court reached its highest point in 1863 with the creation of a Tenth Circuit on the west coast and the appointment of a tenth justice. In 1866, Congress reduced the size of the Court to seven justices and provided that no vacant seats be filled until that number was reached. The number of sitting justices fell to eight before an act of 1869 provided for nine justices, one for each of the judicial circuits established in 1866. The size of the Court has since remained the same.
Obviously, one advantage of having an even number of Justices is that if one is recused, the odds of having an equally divided Court decrease substantially.
Posted at 13:21 by Howard Bashman

Available at National Review Online: Contributing editor Michael Novak continues his criticism of an Alabama federal district court's recent ruling that orders a large granite monument to the Ten Commandments removed from Alabama's Judicial Building. Novak also had an op-ed on this subject on OpinionJournal last Friday.

And Jonah Goldberg, in a very interesting essay that went online late Friday, argues that Paul Krugman got it all wrong in Krugman's column published Friday when Krugman wrote:
Of course, Mr. Lott isn't alone in that role. The Bush administration's judicial nominations have clearly been chosen to give a signal of support to those target Southern voters. A striking example has just emerged: We've learned that Mr. Lott supported the right of Bob Jones University to keep its tax-exempt status even while banning interracial dating; supporting his position was none other than Michael McConnell, a controversial figure recently confirmed as an appeals judge.
Goldberg's essay concludes:
[Krugman] asserts that Lott is a racist and therefore suggests that Lott's support of McConnell makes McConnell a racist too. And, hence, McConnell's arguments in favor of Bob Jones University are merely the predictable consequence of so many racists getting together. Well, that's fine so long as he has the courage of his convictions. Lots of liberals support McConnell more actively than Lott actually supported Strom Thurmond. So I guess that makes Larry Tribe and Walter Dellinger racists too. And since Tribe was Al Gore's lawyer and Dellinger represented Bill Clinton, I guess he'd better call them racists as well. In fact, we can play this game backwards until the whole world is racist. Or, liberals can stop playing this absurd game altogether. Trent Lott was stupid. He may be insensitive. He may even be racist. But if liberals like Krugman expect to use this mess to draw back the curtain on a Republican establishment full of sheet-wearing Klansmen, they'll be sorely disappointed because there's nothing behind the curtain.
Goldberg's essay (which you can access here) is well worth a look.
Posted at 12:01 by Howard Bashman

Another reason why courts of last resort are designed to have an odd number of judges: Today the U.S. Supreme Court issued a per curiam order in Borden Ranch Partnership v. United States Army Corps of Engineers, No. 01-1243 (U.S. Dec. 16, 2002), affirming the judgment of the U.S. Court of Appeals for the Ninth Circuit by an equally divided court. Justice Anthony M. Kennedy was recused from this environmental wetlands contamination case, as I previously explained here. Whether this result counts as a U.S. Supreme Court victory for the Ninth Circuit is something I leave to others to decide.

Update: Gina Holland of The Associated Press now offers this report on the "ruling."
Posted at 10:37 by Howard Bashman

Today's U.S. Supreme Court order list is now available online: You can access the final U.S. Supreme Court order list of 2002 at this link. The Court did not grant review of any new cases; however, the Court did request the Solicitor General's views in one extraordinarily important case (the Nuremberg Files case out of the Ninth Circuit). And, in the aftermath of Hanukkah 2002, the full court denied a motion to dissolve a stay entered by Justice John Paul Stevens that allowed the display of a Hanukkah menorah on a public square in Cincinnati, Ohio. You can access my prior report on Cincinnati's request for reconsideration at this link.
Posted at 10:20 by Howard Bashman

Robert Alt offers his thoughts about yesterday's Maureen Dowd column, which mentioned Justice Clarence Thomas: You can access Alt's comments here.
Posted at 10:19 by Howard Bashman

"GOP Sets Early Push For Judges": Roll Call today has an article bearing this headline, and you can access it here. Readers with more prurient interests may also wish to read this Roll Call article, likewise dated today, entitled "Senate Cable Viewers Get a Shock."
Posted at 10:08 by Howard Bashman

Elsewhere in Monday's newspapers: USA Today contains an op-ed entitled "'Right to bear arms' decision would improve gun control," and Tony Mauro has a commentary entitled "Interstate wine sales start to flow."

Writing in The Los Angeles Times, Law Professor Jonathan Turley has an op-ed entitled "We Wish You a Merry Lawsuit; Santa brings lots of litigation on religious symbols."

Finally, The Boston Globe today contains a front page article that runs under the headline "Cohabitors' pacts tie legal knot unwed."
Posted at 06:28 by Howard Bashman

In Monday's newspapers: The New York Times contains an editorial about last week's U.S. Supreme Court oral argument in a wetlands case. The editorial asks the Court to "affirm that the government can stop wetlands from being polluted to death." The NYTimes also contains letters to the editor addressing last week's cross-burning Supreme Court oral argument, and the letters are grouped under the heading "How Diversity Makes a Difference." Finally for now, The Washington Post offers an editorial entitled "Libel Down Under" that discusses two recent appellate court rulings involving claims of defamation and the Internet.
Posted at 00:25 by Howard Bashman

Sunday, December 15, 2002
Senator Trent Lott and coverage of last week's U.S. Supreme Court cross-burning oral argument: New York Times columnist Maureen Dowd today compares Clarence Thomas's denunciation of cross-burning, during last Wednesday's U.S. Supreme Court oral argument, and Senator Trent Lott's recent public statements relating to race. Her column concludes, "You know you're in trouble when Clarence Thomas is playing Martin Luther King to your David Duke."

Dowd wasn't the only commentator to link these developments from last week. In The Charlotte Observer, Tommy Tomlinson had an op-ed entitled "Racists still taint other Southerners." It humorously notes that "[Justice] Thomas speaks [at oral argument] about as often as the Panthers win the division title." In The Pittsburgh Post-Gazette, columnist Ann McFeatters had an essay entitled "White House Watch: For Republicans, a teachable moment; Trent Lott brought shame, while Clarence Thomas spoke power to truth." An op-ed in the News Journal of Mansfield, Ohio is entitled "Lott's a lot of rot." And an editorial in The Fort Collins Coloradoan entitled "History of race relations must be remembered" also draws a connection between these two developments.

For additional commentary that focuses only on the cross-burning case, The St. Petersburg Times contains a piece by columnist Robyn E. Blumner entitled "Remind Justice Thomas that cross-burning is protected speech." An editorial in The Salt Lake Tribune agrees with Blumner's view. But the view that the First Amendment should protect cross-burning seems to be in the minority among the nation's editorial writers and op-ed commentators. The Times Herald-Record contains an editorial asking the Supreme Court to uphold Virginia's law banning cross-burnings. And The Leaf-Chronicle contains a similar editorial. Writing in today's edition of The Sun News, columnist Bob Bestler has a piece entitled "Don't protect the burning of crosses." And Jonah Goldberg voiced similar views this past Friday in an op-ed in The Washington Times.
Posted at 21:50 by Howard Bashman

Some Second Amendment commentary from here and there: Miami of Ohio, meet Miami of Oklahoma. Today's edition of The Miami News-Record contains an op-ed that is harshly critical of the Ninth Circuit's recent Second Amendment ruling. Meanwhile, a columnist for The Baltimore Sun who had voiced agreement with the merits of the ruling reports that he received plenty of mail from those who hold an opposite view of the ruling.
Posted at 21:38 by Howard Bashman

Freep columnist Brian Dickerson has some amazing news about the logjam of Michigan nominees to the Sixth Circuit: Detroit Free Press columnist Brian Dickerson, in his column published this past Friday, delivered some amazing news:
Michigan could lose as many as four of its five seats on the nation's second-highest court if the Bush administration endorses a proposal being pushed by Republican senators outside the Great Lakes State.

Aides to Michigan's Democratic senators say a threat to fill four U.S. Court of Appeals seats traditionally reserved for Michigan residents with appointees from other states is only a negotiating ploy -- and that the White House will eventually have to address Democratic objections to its current slate of judicial nominees from Michigan.

But the threat -- and a false but persistent rumor that one of President George W. Bush's 6th Circuit nominees, Michigan Court of Appeals Judge Henry Saad, will move to Tennessee in a bid to escape the Democratic senators' blockade -- signify the White House's frustration with the 13-month stalemate over its Michigan nominees.
Here in Pennsylvania, it's gotten so complicated that Third Circuit vacancies are viewed as belonging to geographical segments of the State, meaning that if you're from Philadelphia, you won't be nominated to fill a Third Circuit vacancy until a position previously held by a judge from Philadelphia opens up. That's certainly not how things have worked historically, as this speech that I delivered to the ceremonial en banc Third Circuit on the occasion of my judge's portrait presentation explains in tracing the geographical history of the seat he held. (Link to Dickerson column via The LitiGator.)
Posted at 21:32 by Howard Bashman

"Saturday Night Live" transcripts: The transcript from last night's, Al Gore hosted, edition of "Saturday Night Live" isn't yet available online, but the transcript of the December 7, 2002 show already is. And it includes this pretend advertisement for a certain fast food sandwich with warnings appropriate to the litigious age in which we live.
Posted at 21:20 by Howard Bashman

And in other late breaking news: When I mentioned the other day that the quite wonderful television show "Andy Richter Controls the Universe" airs on FOX at 8:30 p.m. eastern time on Tuesdays, I didn't mean to overlook that the show also airs on FOX at 9:30 p.m. eastern time on Sundays. Yes, it's true, you can tune in tonight to see an all new episode.
Posted at 17:44 by Howard Bashman

No Gore in 2004: offers this report confirming that Al Gore won't be running for President in 2004. And here's more from CBS News.
Posted at 17:31 by Howard Bashman

The controversy surrounding Senator Trent Lott, and its potential impact on Republican hopes to confirm more federal appellate judges: In the past, when one thought about Senator Trent Lott and the battle to confirm federal appellate judges, Fifth Circuit nominee Charles W. Pickering, Sr. would leap to mind first. But not for much longer, perhaps.

Today's edition of The Washington Post reports here that if Senator Lott loses his role as majority leader of the U.S. Senate, he may simply resign his seat altogether. If that were to happen, the Democratic governor of Mississippi would be permitted to name a Democratic replacement. And if that occurred, the Republicans would only have fifty members in the 100-person Senate. Although the vote of Vice President Dick Cheney would allow Republicans to prevail in the event of any tie votes, the lack of a majority would leave Republicans in the Senate vulnerable to defections by the most liberal Republicans to Independent status, as we saw happen the last time the Senate was evenly split.

Judge Pickering's Fifth Circuit nomination was the subject of some press coverage in today's newspapers. The Hattiesburg American contains a very interesting editorial today that begins:
Regardless of the outcome of the political firestorm swirling around U.S. Sen. Trent Lott, Judge Charles Pickering deserves to be confirmed to the 5th U.S. Circuit Court of Appeals in New Orleans.

Lott's foolish remarks at Sen. Strom Thurmond's 100th birthday party last week may have tarnished the Mississippi senator's political career.

However, those remarks in no way reflect upon Pickering; nor should they be used against him by liberal Democrats who derailed Pickering's nomination earlier this year and who seek to do the same when the Senate Judiciary Committee reconvenes in January.
The Pickering nomination is also mentioned in today's edition of The Atlanta Journal-Constitution, in an article entitled "Lott's record paints complex picture," and in today's edition of The Boston Globe, in an article entitled "GOP leader's woes wound his party."
Posted at 14:51 by Howard Bashman

He picked a most opportune time to return from hiatus: The editor of returned from hiatus on Friday. And that turned out to be perfect timing indeed. For on that very day, The Springfield News-Leader contained an article entitled "Fast-food coffee may be in hot water again."
Posted at 14:48 by Howard Bashman

"Bloggers-At-Law": In a post today bearing that title, Denise Howell updates her nearly definitive list of law blogs.
Posted at 14:47 by Howard Bashman

In Sunday's newspapers: Today's edition of The New York Times demonstrates that reporter Adam Liptak has been a busy man. Which, of course, is great news for those of us who enjoy his consistently top notch work. He has three items in today's paper: here you can access a very interesting article entitled "Symbols vs. Free Speech" about last week's U.S. Supreme Court cross-burning oral argument; here you can access an article entitled "Justices Call on Bench's Bard to Limit His Lyricism" about Pennsylvania Supreme Court Justice J. Michael Eakin, whose latest rhyming opinion you can access at this link; and here, from today's Magazine section, is a short description of the "material support" provision of a federal antiterrorism law.

Indeed, the Magazine section of today's NYTimes is not to be missed. It is entitled "The Second Annual Year in Ideas," and it offers short descriptions of a whole bunch of ideas that have crept into the public's consciousness over this past year. For example, sandwiched between blurbs about "endurance condoms" and "enhanced clothing" is a write-up of "enemy combatants." The magazine section also contains items about "State Attorneys General as Corporate Cops" and "Open-Source Begging." I'd recommend buying a hard-copy of today's NYTimes simply to have the Magazine section in hand.

In an editorial, The NYTimes calls on the U.S. Supreme Court to uphold Virginia's statute banning cross-burning. The newspaper offers a very lengthy article entitled "In Lott's Life, Long Shadows of Segregation." This article reports on a seminar entitled "How to Become a Judge." Here you can access an article that runs under the headline "Michigan Law Dean to Lead Cornell." And, finally, here you can access an article entitled "The New After-School Activity: Evangelism."

The Washington Post reports here that President Bush will soon be proposing nominees for the final two vacancies on the U.S. Court of Appeals for the D.C. Circuit. Hopefully the same will soon be true for the two (and soon to be three) vacancies on the U.S. Court of Appeals for the Third Circuit. On its editorial page, the Post has an item entitled "The GAO Takes a Hit." And in the op-ed department, here the president of the University of Michigan has an op-ed entitled "No Time for Colorblindness"; you can access here an essay entitled "At the Corner of Hate and Free Speech"; and here's a piece by two criminal defense attorneys entitled "A Plea to Virginia: Free the Innocent."
Posted at 11:59 by Howard Bashman

Just one more example that "How Appealing" gets results: Today's edition of The New York Times is bursting at the seams with good stuff (as a post forthcoming here shortly will detail), but one item in particular deserves separate mention.

Two weeks ago, on December 1, 2002, the Week in Review section of the newspaper contained an article entitled "Here Come the Judges: First the Senate, Now the Courts of Appeals." Accompanying the article was a chart that purported to show, for each federal appellate court, the total number of active judgeships, the current number of active judges on each circuit appointed by Democratic and Republican Presidents, and the number of vacancies. As I originally noted here on December 1, 2002, in four instances, the chart inaccurately identifies the number of active judgeships in a given circuit, which then rendered the much or all of the rest of the data for that circuit incorrect.

Today, the NYTimes has printed a correction (click here and scroll down to the item labeled "Corrections") that notes the very errors in the chart that I first reported here two weeks ago. The correction published today states:
A chart on Dec. 1 with an article about President Bush's role in reshaping the federal judiciary misstated the makeup of four appeals courts.

According to the chief judges, in the Fifth Circuit (Louisiana, Mississippi, Texas), there are now 17 allotted seats, not 18; 10 of the judges were appointed by Republicans and 4 by Democrats, with 3 vacancies (not 10 by Republicans and 3 by Democrats).

In the Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee) there are 16 seats, not 22; 4 judges were appointed by Republicans and 6 by Democrats, with 6 vacancies (not 10 by Republicans, 6 by Democrats).

In the Seventh Circuit (Illinois, Indiana, Wisconsin) there are 11 seats, not 6; 8 judges were appointed by Republicans and 3 by Democrats (not 3 by Republicans and 3 by Democrats).

In the 11th Circuit (Alabama, Florida, Georgia) there are 12 seats, not 13; 6 were appointed by Republican presidents, 5 by Democrats, with 1 vacancy (not 6 by Republicans, 6 by Democrats).

Since the chart was published, the Fourth Circuit (North Carolina, South Carolina, Virginia, West Virginia, Maryland) has added another Republican-appointed judge, for a total of 8 appointed by Republicans and 4 by Democrats, leaving 3 vacancies.
I'm not sure why the correction includes the attribution "According to the chief judges." Certainly I didn't have to consult with any of these circuits' chief judges to determine the inaccuracies that I reported on the day the chart appeared in the newspaper some two weeks ago.
Posted at 11:14 by Howard Bashman

Saturday, December 14, 2002
More proof that the party never ends at "How Appealing": Thanks to a holiday party that begins shortly and doesn't end until mid-morning tomorrow, no new posts will appear here until then.

In the unlikely event you are wondering "What is one to do in the interim?" -- I have prepared the following list of suggestions:
(1) something else; (2) sign-up here to receive my monthly appellate column by email on the day of its publication on the second Monday of each month; (3) visit some of the fine blogs listed in the left hand column of this page, because "How Appealing" ranks fourteenth among all blogs for the number of other blogs that it links to; (4) visit some of the many, many fine regional newspapers and other news sources listed below the never-ending list of blogs on the left-hand column of this page; (5) read every post that has ever appeared on "How Appealing" since its inception on May 6, 2002 and email me with any typos that you find; or (6) email me with ideas for future appellate columns because -- who knows -- someday I could run out of ideas (or did that already happen months ago?).
Happy holidays everyone!
Posted at 11:24 by Howard Bashman

"Is Googling O.K.?" In tomorrow's Magazine section of The New York Times, the Ethicist provides an answer to that question, and you can access it here.
Posted at 11:13 by Howard Bashman

"Court narrows libel suit's jurisdiction; Lawsuit raised question about Internet libel": The Roanoke Times offers this report on an important ruling issued yesterday by the U.S. Court of Appeals for the Fourth Circuit. I first mentioned the ruling yesterday in a post that you can access here.
Posted at 10:30 by Howard Bashman

Senator Trent Lott and the nomination of Charles W. Pickering, Sr. to serve on the U.S. Court of Appeals for the Fifth Circuit: The Hattiesburg American contains an article entitled "Comments may jeopardize judgeship; Lott's remarks may derail Pickering bid." And a transcript of yesterday's White House press briefing contained the following questions and answers:
Q Senator Cochran said yesterday he believes that President Bush will re-nominate -- that President Bush will re-nominate Judge Charles Pickering of Mississippi to the 5th Circuit Court of Appeals. Does the President intend to renominate Judge Pickering, and how can he hope for success if Senator Lott is is major champion in the Senate?

MR. FLEISCHER: As you know, I do not speculate about potential personnel announcements.

Q He's already nominated. Is he saying you make no decisions on renominating these judges?

MR. FLEISCHER: It's a statement you have heard for two years now, that I do not speculate on personnel. Almost literally two years ago today we started to be in the position where I was able to speculate about personnel and chose not to do so.
You can access the complete transcript at this link.
Posted at 10:03 by Howard Bashman

In Saturday's newspapers: Today's edition of The New York Times contains plenty of Trent Lott-related coverage. The final question and answer contained in these lengthy excerpts from Senator Lott's press conference yesterday refer to the nomination of Charles W. Pickering, Sr. to serve on the U.S. Court of Appeals for the Fifth Circuit. This accompanying news article also mentions the Pickering nomination. And another article, entitled "Lott Often Opposed Measures Identified With Civil Rights," reports that Lott was the lone senator to vote against confirming Roger L. Gregory to serve on the U.S. Court of Appeals for the Fourth Circuit. Judge Gregory is the first African-American judge to serve on the Fourth Circuit.

In other news, today's edition of The Washington Post reports here that "Microsoft Offered States a Fee Deal; Firm Would Pay Legal Expenses if Case Was Dropped." The Los Angeles Times runs a wire service article reporting that the mother of teenage sniper suspect John Lee Malvo has been deported to Jamaica. The LATimes also runs an op-ed entitled "We must support affirmative action admissions policies."
Posted at 08:30 by Howard Bashman

Friday, December 13, 2002
Now available online at Tony Mauro's Courtside column leads off with a wonderful profile of the relatively new Washington, DC law firm of Robbins, Russell, Englert, Orseck & Untereiner. The profile contains many a mention of my friend Roy T. Englert, Jr., who is indeed one of the Nation's finest appellate advocates (and a mighty fine judo official as well, so I'm told). The article also suggests that highly qualified appellate lawyers can do even better financially working in an appellate boutique practice than at a really large firm.

Elsewhere, Jason Hoppin tonight does have a report on yesterday's other newsworthy Ninth Circuit ruling. His article begins, "A Los Angeles woman can sue the Austrian government in California for the return of six paintings taken from her family by the Nazis, the 9th U.S. Circuit Court of Appeals ruled Thursday." And thanks to Jason for directing me to this Los Angeles Times Magazine article that provides plenty of background about the dispute.

The ACLU, represented by some incredibly talented appellate lawyers of its own, responds in a reply brief recently filed with the Third Circuit to an earlier brief filed there that compared the organization to the Taliban. Shannon Duffy of The Legal Intelligencer has this report.

Here's an article reporting that "2nd Circuit Throws Out Hobbs Act Conviction."

In The Recorder, California's affiliate, Greg Mitchell analyzes the Australia High Court's recent Internet defamation ruling involving Dow Jones. And, finally, one of the most intentionally funny members of California's appellate judiciary, Associate Justice William W. Bedsworth, has a column entitled "Village Women Threaten Nudity in Oil Standoff; Still another place it must be tough to be a lawyer." You don't want to miss it.
Posted at 23:12 by Howard Bashman

"Lott Says He Will Still Push Pickering": The Associated Press this evening offers this report.
Posted at 20:42 by Howard Bashman

Fourth Circuit issues important Internet defamation ruling: Today's opinion by a unanimous three-judge panel begins:
The question in this appeal is whether two Connecticut newspapers and certain of their staff (sometimes, the "newspaper defendants") subjected themselves to personal jurisdiction in Virginia by posting on the Internet news articles that, in the context of discussing the State of Connecticut's policy of housing its prisoners in Virginia institutions, allegedly defamed the warden of a Virginia prison. Our recent decision in ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707 (4th Cir. 2002), supplies the standard for determining a court's authority to exercise personal jurisdiction over an out-of-state person who places information on the Internet. Applying that standard, we hold that a court in Virginia cannot constitutionally exercise jurisdiction over the Connecticut-based newspaper defendants because they did not manifest an intent to aim their websites or the posted articles at a Virginia audience. Accordingly, we reverse the district court's order denying the defendants' motion to dismiss for lack of personal jurisdiction.
You can access the complete ruling at this link.
Posted at 17:22 by Howard Bashman

Cruel and unusual second-hand smoke: Today the U.S. Court of Appeals for the Second Circuit provides the third second-hand smoke decision in three days, following on the heels of the Fourth Circuit's second-hand smoke ruling on Wednesday and the Ninth Circuit's second-hand smoke decision yesterday. Unlike the other two decisions, the Second Circuit's decision arises from a prisoner's claim that he was exposed to excessive amounts of second-hand smoke behind bars. The Second Circuit's decision reinstates, in part, the prisoner's claims, allowing further proceedings on them to occur in the trial court.
Posted at 17:18 by Howard Bashman

FOXNews column by Glenn Harlan Reynolds about how to overrule Bowers v. Hardwick "without creating much of a fuss": Law Professor Glenn Harlan Reynolds has written an op-ed that attempts to explain how the U.S. Supreme Court could overrule Bowers v. Hardwick "without creating much of a fuss." At the risk of sounding flippant, the way to overrule Bowers without creating much of a fuss is simply to overrule Bowers. While that action will undoubtedly create some fuss, it won't create a lot of it.

I've read Glenn's column some five times now, and I'm simply at a loss over how to make heads or tails of it. At the core of Glenn's reasoning is an assertion that the Court should anchor its ruling "in terms of longstanding limitations on government power rather than on breathless declarations of new rights." As I see it, however, the government power versus individual rights debate in fact involves a continuum. If the government has the power to regulate homosexual sodomy, then people don't have the right to engage in it. If people have the right to engage in it, then the government doesn't have the power to regulate it. Thus, Glenn's argument seems simply to be that the Court should say it is limiting the power of government rather than creating a right belonging to individuals. But what, beyond wordplay, is the difference? I don't see one.

Even worse, the state supreme court decisions that Glenn holds up as prized models of his approach strike me as examples of judicial lawmaking. When a court holds that a law making homosexual sodomy a crime is invalid because it trenches upon the ideals of government that the framers of the Constitution had in mind, the Court seems to be imposing a value judgment rather than grounding its decision in the positive law. (This is a debate that critics of the U.S. Supreme Court's "Eleventh Amendment" jurisprudence may find familiar.)

If the U.S. Supreme Court wishes to overrule Bowers, it can easily do so without relying on a "breathless declaration of new rights." The Court could simply recognize that the existing (albeit controversial) "right to privacy" protects sexual relations between consenting heterosexual adults. The Court can then rule that it is an equal protection violation to deny the same protection to consenting homosexual adults. Does that sound like a breathless expansion of rights? Maybe in some corners of this great land, but certainly not everywhere.
Posted at 16:35 by Howard Bashman

It's true: As reported by Ernie the Attorney, "How Appealing" has inspired the launching of a blog devoted to, of all things, statutory construction. This new blog is entitled, appropriately, "Statutory Construction Zone" and is written by Gary O'Connor.

At one time, people probably wondered whether a blog devoted to appellate litigation might ever develop an enthusiastic readership base. Given the number of hits this blog has received this week -- 6,594 on Monday; 7,092 on Tuesday; 6,216 on Wednesday; and 6,240 yesterday -- perhaps the answer is yes. Thus, a blog devoted to statutory construction could conceivably attract some readers too. And, while I'm on the topic, a little over one month ago, I set forth one of my favorite rules of statutory construction (because it's kinda funny) in a post you can access here.
Posted at 15:10 by Howard Bashman

The Amar brothers on stare decisis and Roe, Bakke, and Bowers: Law Professors Akhil Reed Amar and Vikram David Amar today co-write in their weekly FindLaw column that the U.S. Supreme Court supplied precisely the wrong answer in Planned Parenthood v. Casey to govern when the Court will abandon its earlier decisions. Now that the Court is on the verge of reconsidering -- and possibly overruling -- both Bakke and Bowers, the Amar brothers offer up a much more lenient standard for the Court to employ in deciding whether to abandon earlier, wrong decisions. The Amar brothers promise in today's column to address these issues in more detail in columns that will be forthcoming in the weeks ahead. But they are already off to a very interesting, and perhaps controversial, start.
Posted at 13:16 by Howard Bashman

Although a certain former New Hampshire Supreme Court Justice is no fan of courtroom television, that court's current Justices don't seem to mind it: U.S. Supreme Court Justice David H. Souter, who previously served as a Justice on the Supreme Court of New Hampshire, once famously said that the day cameras televised proceedings from the U.S. Supreme Court it would be "over my dead body." Interestingly, the Justices currently serving on New Hampshire's highest court don't seem to share that antipathy toward televised court proceedings.

Today the Supreme Court of New Hampshire released an opinion setting strict limitations on when trial courts in that State can keep electronic media out of the courtroom. The default rule that the court announced was: "A trial judge should permit the media to photograph, record and broadcast all courtroom proceedings that are open to the public." Thereafter, the court explained:
In summary, to withstand appellate review, we recommend that future trial court orders restricting cameras or other electronic media from the courtroom be: (1) based upon clearly articulated findings of fact; (2) made after an evidentiary hearing at which all interested parties are given an opportunity to be heard; (3) drawn narrowly to address a particular problem posing a substantial likelihood of prejudicing the proceedings; and (4) imposed only when no other practical alternative is available.
You can access the court's complete opinion at this link.
Posted at 12:32 by Howard Bashman

Even more proof that "Andy Richter Controls the Universe": I first mentioned earlier this month the amazingly good season premier of "Andy Richter Controls the Universe." Yesterday's television critic chimed in with her equally effusive praise about the show, in an essay that provides a wonderful account of some of the funniest aspects of this season's first episode. At the beginning of the show, Andy's corporate behemoth employer "offer[s] a finder's fee of $3,000 to anyone who helps recruit a nonwhite technical writer to the firm." The firm proceeds to hire Andy's proposed candidate, Ted. From there:
The experience turns sour when Andy makes a few cracks about the Irish in front of Ted, who is black but proud of his Gaelic heritage. Ted complains to Jessica, who defends Andy against accusations of racism, then fails to see the problem when she realizes he wasn't talking about African-Americans. A black human resources person has a similar reaction, and soon Andy, Jessica and the human resources manager wind up in sensitivity training, where a man standing at the front of the room greets them with the following: "Jews are cheap. Blacks are lazy. Asians can't drive. Puerto Ricans steal."

"Wow," Andy thinks. "It was a powerful way to get our attention. Pointing out all the horrible, hurtful, stupid stereotypes. This guy was good."

He does seem good, until another man walks in and says, "Good afternoon, everyone. I'm Mr. Stevens, your instructor." He turns to the man at the front of the room. "Who are you?"

"Hey, Duane Farley. My guinea boss told me I have to take this seminar."
The show airs Tuesday nights at 8:30 p.m. eastern time, so be sure to check it out. Even University of Chicago Assistant Professor of Political Science Jacob T. Levy agrees that you should be tuning in to this show.
Posted at 10:22 by Howard Bashman

"Tom the Dancing Bug" depicts how the Nine Commandments became Ten: Here, via
Posted at 10:01 by Howard Bashman

Another example of real life imitates "The Simpsons"? Following up on my recent post about "mooning" in Australia, a reader emails:
As any fan of "The Simpsons" knows, mooning is a serious offense in Australia, and not constitutionally protected. In the sixth season, Bart created an international incident when he mooned the Australian Parliament.
Indeed, a page on the Web site, a link to which this reader most helpfully provided, gives this discription of the episode's conclusion:
Bart decides to accept his punishment the only way he knows how: He pulls down his pants and moons the Australians with the words "Don't Tread on Me" written on his butt. The Simpsons escape the embassy with the Australians in hot pursuit and make it back to America, where freedom to pull pranks is a Constitutional right
Depending on how the Australian court rules, we'll soon know whether this is another example of real life imitating "The Simpsons."
Posted at 09:51 by Howard Bashman

In Friday's Los Angeles Times: In today's edition of The Los Angeles Times, you can access here a report entitled "Klimt Art Suit May Proceed, Court Says; Plaintiff against Austria hopes to recover paintings seized by the Nazis in 1939," and here an article that runs under the headline "Ban on Roads in Pristine National Forests Reinstated; An appeals court lifts an injunction on the Clinton-era rule. But the White House refused to defend it, and several legal challenges remain."
Posted at 07:33 by Howard Bashman

While the Supreme Court of the United States debates whether cross-burning is a protected form of expression . . . A court in Australia is in the midst of deciding whether "mooning" is a protected form of expression. As one news article explains, "Lawyers acting for James Albert Ernest Togo, will claim in court today that as an indigenous Australian Togo has a right to drop his pants and flash his buttocks at police as an expression of free communication." Another article reports that the lawyer for the temporarily bare-bottomed man argued that "the action reflected the irreverent Australian character which enjoyed poking fun at authority. 'The larrikin moon is of a political nature when it is directed at an authority figure,' he said." Additional coverage can be found here via BBC News, here via Sky News (which reports concern that the kangaroo would be replaced as Australia's national symbol); and here via The Courier Mail of Brisbane, Queensland, Australia. (Thanks to a reader for emailing news of this overseas development.)
Posted at 06:34 by Howard Bashman

Dual sovereignty double jeopardy case tangentially involves author sent to jail for refusing to turn over notes and tapes to federal grand jury: A reader based in Richmond, Virginia emails with the following question:
In reference to the 5th circuit case concerning the dual sovereignty doctrine and double jeopardy you mentioned: Is this the case involving the reporter who went to jail to protect her source? Is she the Vanessa Leggett mentioned in the court's footnote 1? If so, I'd be a bit surprised if she isn't mentioned in news coverage of this case.
You are correct. Readers can learn more about that tangentially related aspect of the case here, here, and here.

Meanwhile, I am reliably informed that in the original version of the Fifth Circuit's opinion issued yesterday, that court's name is set forth on the cover page of the opinion in Engravers Old English BT font, rather than in Comic Sans MS font as it now appears in the PDF version of the ruling. Update: The court has issued a revised opinion that corrects the font issue mentioned above.
Posted at 00:59 by Howard Bashman

In Friday's newspapers: The Washington Post reports here that "TV Barred From First Sniper Trial." And here The Post reports that "Court Reinstates Roadless Forests Rule; Restoration of Clinton Measure a Setback to Bush Administration, Timber Industry." The court in question in the forests rule case was the Ninth Circuit, and you can access its opinion in the matter here.

The New York Times reports here that "[t]he New York State Court of Appeals ruled yesterday that roadblocks set up by the police must have a more specific goal than general crime fighting." Here The NYTimes has an article entitled "Court Reinstates Ban on Building Forest Roads." And you can access "Judge Bars Cameras From Trial in Sniper Case" here.

At OpinionJournal, Michael Novak contends that an Alabama-based federal district judge reached the wrong result in ordering a large granite monument to the Ten Commandment's removed from Alabama's Judicial Building.

Finally, The Christian Science Monitor contains an article with the subheadline, "Colleges try new ways to recruit minorities as high court takes up issue of race-sensitive admissions."
Posted at 00:26 by Howard Bashman

"Oklahoma executes gay man; appeals fail": Thanks to SCOTUSblog for the link to this article. I previously mentioned this matter yesterday, in a post you can access here.
Posted at 00:19 by Howard Bashman

Thursday, December 12, 2002
Double jeopardy and the dual sovereignty doctrine: The Fifth Circuit today issued a very interesting and thorough opinion examining the interaction between double jeopardy and the dual sovereignty doctrine. The unanimous opinion by Circuit Judge Jerry E. Smith begins:
Robert Angleton was acquitted, in state court, of the murder of his wife. A federal grand jury then indicted him for the same murder. Angleton appeals, on grounds of double jeopardy, the denial of his motion to dismiss the indictment. Concluding that the dual sovereignty doctrine permits a successive prosecution, we affirm.
When a case presents an interesting or complex question of law, and Judge Jerry E. Smith is the author of the opinion, you are guaranteed a thoughtful, thorough, and well-written treatment of the questions presented. Today, of course, is no exception. You can access the opinion here.

For readers interested in typography, be sure to note the font in which the title of the issuing court appears on page one of the opinion. That's Comic Sans MS font, if I'm not mistaken, a font that I like so much I have it set as the default for email messages I send using the Microsoft Outlook program on my personal computer at work.
Posted at 23:39 by Howard Bashman

"9th Circuit Upholds $1.4M Secondhand Smoke Award": Jason Hoppin has this report online at The Recorder, a affiliate. I figured that Jason was more likely to write up today's ruling by the Ninth Circuit that allows an individual's lawsuit to proceed against the Republic of Austria based on a Nazi-era seizure of artwork (a ruling that I mentioned earlier today here), but what do I know?
Posted at 23:30 by Howard Bashman

Can asking a co-worker for sex three times in just a few minutes, unaccompanied by physical contact, give rise to employer liability for sex harassment? Yes, the Seventh Circuit ruled today in a per curiam published opinion you can access here.
Posted at 23:18 by Howard Bashman

Ideology and the confirmation process for nominees to serve on U.S. Courts of Appeals: In response to a positive comment about my December 2002 appellate column -- entitled "Activist U.S. Court of Appeals Judges: Myth or Reality?" -- Philippe DeCroy writes in pertinent part:
So maybe neither the White House nor the Senate should worry about ideology, but if the White House does worry about it, one can hardly blame the Senate for worrying about it as well. Whether ideology matters is at bottom an empirical question with an unsettled answer. If your enemy is convinced that it does, it would be risky to assume that it doesn't.
The main point of my column this month is that regardless of the criteria the White House uses to select nominees to serve on the U.S. Courts of Appeals, Senators from both parties will put their resources to better use by focusing in the confirmation process on ensuring that the nominee will decide cases based on the law, without regard to his or her personal or political preferences, rather than trying to determine whether the nominee's personal and political preferences are centrist.

Moving beyond what's in my column, I also question whether it is fair to say that the current White House has some overriding concern to put conservative ideologues on the nations U.S. Courts of Appeals. Not every nominee -- indeed, not most of the current White House's nominees to the U.S. Courts of Appeals -- merit that label. And even those who might merit that label certainly haven't established a record as conservative ideologues during their very short tenures on the bench. In time, we will see whether they ever will.

Although my column focused exclusively on nominations to the U.S. Courts of Appeals -- the Nation's intermediate federal appellate courts -- I do agree that inquiry into a nominee's personal and political views may be appropriate when the nominee has been proposed to serve on the U.S. Supreme Court. That's because individuals serving on the Supreme Court have the ability to substitute their personal views for the law in a way that truly could cause havoc, simply because no further avenue for judicial review by an even higher court exists. Yet given the power Supreme Court nominees wield, one would think that a President's judge picking machinery would be at its most careful in deciding whom to nominate. Thus, a Republican President would never put on the Court someone like David H. Souter, or John Paul Stevens, or Harry Blackmun. A particularly conservative Republican President who repeatedly expressed an interest in having Roe v. Wade overruled would never put on the Court Justices like Sandra Day O'Connor or Anthony M. Kennedy. And a Democratic President would never appoint someone as very conservative as Byron R. White. None of that ever would have happened, except that it did.

Finally, let's return the focus to the U.S. Courts of Appeals. If the problem of U.S. Court of Appeals judges imposing their personal and political beliefs in derogation of the law were especially serious, I trust that readers would be able to identify a fairly sizeable list of judges who do precisely that on regular occasion. But beyond one or two or three names that may come to mind, there would not be widespread agreement as to which judges, if any, deserved to be on such a list. This is because most federal appellate judges labor in relative obscurity, and beyond a mention or two that those judges might receive every now and then here at "How Appealing," it's bound to remain that way into the foreseeable future.
Posted at 23:04 by Howard Bashman

These past two days haven't brought such bad news for second-hand smoke: That's what Sasha Volokh argues here, in a post that emphasizes the distinction between the Radon Act and Rae Dawn Chong. My post today on the subject of second-hand smoke, which ran under the heading "Victory for Husain marks second day of bad news for second-hand smoke," illustrates well the risk of deciding to make a post based largely on its heading's potential for double-entendre.
Posted at 22:32 by Howard Bashman

Interior Secretary Gale Norton asks D.C. Circuit to overturn contempt citation issued against her: The Associated Press has this report about one of the latest developments in the so-called Indian Trust litigation.
Posted at 22:23 by Howard Bashman

Continuing legal education: Lawyers have the pleasure of sitting through hour after hour of CLE courses each year in order to remain in good standing with the State Bar Association. Today law blogger Sam Heldman suggested "a waiver of CLE requirements for all lawyers who attest that they read Howard Bashman's site obsessively, as I do." That's such an excellent idea that it's bound never to happen.
Posted at 22:20 by Howard Bashman

Michael W. McConnell, already sworn into service on the Tenth Circuit: Today the U.S. Court of Appeals for the Tenth Circuit issued a unanimous en banc ruling, the first footnote of which stated, "Judge Michael W. McConnell joined the court after oral argument in the instant case and did not participate in this decision." Welcome to the judiciary, Judge McConnell! As best I can tell, he hasn't yet overruled any U.S. Supreme Court decisions with which he expressed disagreement as an academic.
Posted at 20:44 by Howard Bashman

As New York City prepares for a transit strike, so does the Second Circuit: The Associated Press reports here that "N.Y. Prepares for Possible Transit Strike." Indeed, the Manhattan-based U.S. Court of Appeals for the Second Circuit has already posted to its Web site in the horribly pesky pop-up window a notice stating, "In the event of a transit strike, the Clerk's Office and Circuit Library will be open from 10:00am to 3:00pm on the days affected. Oral arguments will commence at 11:00am."
Posted at 20:36 by Howard Bashman

"Lott Comments May Hurt Pickering": The Associated Press offers this report.
Posted at 20:31 by Howard Bashman

Be my guest: Two of the regular, non-guest bloggers at The Volokh Conspiracy have recently engaged in an exchange of views about my December 2002 appellate column entitled "Activist U.S. Court of Appeals Judges: Myth or Reality?" Orin Kerr began the exchange with some very kind words about what I wrote. "Philippe DeCroy" then offers an interesting rejoinder that asks, essentially, if the ideology of judicial candidates doesn't matter, then why does the White House consider it? And since the White House considers it, shouldn't the Senate consider it too? I hope to find the time later this evening to respond to Philippe's questions.
Posted at 18:09 by Howard Bashman

Ed Lazarus proposes "How to Cross-Examine Bush's Conservative Judicial Nominees": FindLaw columnist Edward Lazarus today puts forth a quite unrealistic plan for Democratic Senators to use in opposing President Bush's judicial nominees next year. What's wrong with Ed's ideas? For starters, the questions he proposes in fact ask nominees to explain how they would rule on hypothetical cases or controversies that very well could come before the nominees for a ruling if they are confirmed to serve as judges. Senators generally respect the fact that judicial nominees should not be asked, and usually cannot answer, these sort of questions.

And then there's the question of how carefully Ed researched the facts on which he has based his proposal. For example, he writes: "The conservative justices believe that the Eighth Amendment to the Constitution places strict limits on punitive damages against companies yet virtually no limits on punishing criminals." Hmm, where was Ed when the U.S. Supreme Court decided Browning-Ferris Indus. v. Kelco Disposal, Inc., which held "on the basis of the history and purpose of the Eighth Amendment, that its Excessive Fines Clause does not apply to awards of punitive damages in cases between private parties." Indeed, the very Justice for whom Lazarus clerked wrote the majority opinion in that case right around the time that Lazarus was clerking at the Court. And some of the Court's most conservative members joined in that ruling.
Posted at 17:26 by Howard Bashman

Next time you have to rely on moldy old case law, be thankful you're not working in a moldy old judicial building: The Associated Press has this report from Jefferson City, Missouri, home of that State's ninety-five-year-old, and apparently moldy, Supreme Court Building.
Posted at 15:42 by Howard Bashman

Original recipe crack cocaine not needed to qualify for enhanced sentence distributing that form of the drug entails: The U.S. Court of Appeals for the Third Circuit issued this interesting decision today.
Posted at 15:33 by Howard Bashman

"Why Innocent People Confess: It's not a breakdown of American justice. It's American justice working as designed." Michael Kinsley has an essay by this title today at Slate.
Posted at 15:27 by Howard Bashman

Victory for Husain marks second day of bad news for second-hand smoke: Today the Ninth Circuit in Husain v. Olympic Airways affirmed a jury's award of $1.4 million against the airline based on the death of a passenger that "occurred after he suffered complications when he was exposed to ambient secondhand smoke while seated in the airplane's non-smoking section three rows in front of the smoking section." Yesterday, of course, the Fourth Circuit dismissed for lack of federal subject matter jurisdiction a suit in which a federal district court had struck down the EPA's classification of second-hand tobacco smoke as a known human carcinogen. You can access the Fourth Circuit's ruling from yesterday at this link.
Posted at 14:09 by Howard Bashman

Ninth Circuit allows suit to proceed against Republic of Austria for Nazi-era theft of paintings: Today the U.S. Court of Appeals for the Ninth Circuit issued an opinion that allows a plaintiff to proceed in California federal court with her suit against the Republic of Austria for the Nazi-era theft of six Gustav Klimt paintings from her Jewish uncle. You can access the Ninth Circuit's very interesting ruling at this link. The opinion file may take some time to download because it contains images of artwork as an appendix to the court's ruling.
Posted at 13:57 by Howard Bashman

Washington Times op-ed calls on entire U.S. Senate to vote on all judicial nominees in 2003: You can access this op-ed here.
Posted at 12:01 by Howard Bashman

Wrong tree? Maryland's highest court, the Court of Appeals, ruled yesterday that:
A canine alert on the exterior of a vehicle does not support the proposition that the drugs potentially in the car are concealed on a particular occupant of that vehicle. When the police get all of the occupants out of the vehicle and find no drugs in the vehicle, they cannot use a positive general canine scan of the car as authority to go further and search a non-owner/non-driver passenger.
The ruling appears to have been based on that court's understanding of the Fourth Amendment to the U.S. Constitution, making U.S. Supreme Court review a possibility. You can access yesterday's 5-2 ruling at this link.
Posted at 11:54 by Howard Bashman

The nascent campaign against Kmiec rolls on: Anti-Kmiec advocate Andrew Sullivan prints an anonymous letter that -- get this -- stridently supports Sullivan's view of the matter. Meanwhile, Robert Alt notes here that the Alliance for Justice could at least have gotten Kmiec's first name right in the title of its anti-Kmiec press release. I, on the other hand, keep trying my best to get his last name spelled right.
Posted at 11:32 by Howard Bashman

"Judicial Activism Reconsidered," by Thomas Sowell: Thanks much to reader Ross Nordeen for emailing to note that this essay by Thomas Sowell is available online. It looks quite interesting and is definitely quite lengthy.
Posted at 11:08 by Howard Bashman

Welcome to the spotlight, Dean Kmiec! From Lloyd Grove's column (second item) in today's edition of The Washington Post:
Judge Scofflaw?

After the New York Times claimed Tuesday that Catholic University Law School Dean Douglas W. Kmiec is on President Bush's short list for a coveted seat on the Washington federal appeals court, one of Kmiec's Northwest D.C. neighbors helpfully pointed out to us that he keeps California plates on his cars.

Yesterday Kmiec, who moved in 2001 from Pepperdine University to assume his current post, acknowledged in a brief interview that one of the family cars does indeed display California plates, but said the other one is registered in the District.

"The car I drive to work is registered in D.C.," he told us. "The other one, which is my wife's car and about to be sold, is registered in California, and I didn't see any point in registering it here." Describing this vehicle as a seven-year-old Toyota Camry, Kmiec added: "The children use it go back and forth to California, where they're in school." Kmiec was vague about what portion of the year the Toyota is in California as opposed to Washington. "I would say it's months."

Asked if he's aware it's usually illegal to keep your vehicle registered out of state, Kmiec replied, "I'll take your word for it."

It is doubtful that such a minor infraction would sink a rumored judicial nomination, "but it is a delicious irony," said Tony Bullock, spokesman for Mayor Anthony Williams. "The law is not ambiguous," Bullock added. "In D.C. you've got 30 days, once you've established residency, to get your D.C. plates." There are exceptions, of course -- members of Congress, their families and personal staff, Senate-confirmed presidential appointees, active military personnel, students -- and, Bullock added with a chuckle, members of the federal judiciary.
Meanwhile, a reader emails along an article (not available online) from the Los Angeles Daily Journal that begins, "A liberal judicial advocacy group took the unusual step Tuesday of announcing its opposition to a conservative legal scholar who may one day sit on the U.S. Circuit Court of Appeals for the District of Columbia." The group in question is, drum roll please, the Alliance For Justice, whose press release you can access here.
Posted at 10:47 by Howard Bashman

Respecting the accused adult sniper's right to a fair trial, judge denies request to televise trial: The Associated Press offers this report.
Posted at 10:43 by Howard Bashman

Some news coverage of Boalt Hall's interim dean: The Mercury News reports here that "Law library director to lead Boalt for now; Professor Well-Liked by Students and Well-Respected in his Field." And The Oakland Tribune offers a short article on the appointment of an interim dean here.
Posted at 09:16 by Howard Bashman

Elsewhere in Thursday's newspapers, featuring cross-burning oral argument coverage from nearly everywhere: The U.S. Supreme Court's oral argument yesterday in the cross-burning dispute from Virginia dominates today's news coverage.

Lyle Denniston of The Boston Globe has an article entitled "Thomas breaks silence to denounce Klan." In USA Today, Joan Biskupic has two reports on the case: here you can access an article entitled "Cross-burning case agitates Thomas; Justice injects passion into Supreme Court session on ban"; and here, "Reticent justice finds voice on racial issues." In The Los Angeles Times, David G. Savage reports that "Thomas Assails Cross Burning as Terror Tactic; The Supreme Court justice, normally silent during oral arguments, says such action doesn't deserve free speech protection."

Jan Crawford Greenburg of The Chicago Tribune has an article today entitled "Emotional court weighs cross burning; Thomas speaks against 'terror.'" Harriet Chiang of the San Francisco Chronicle reports here that "Thomas sets tone in cross-burning debate; Argument that symbolic act is threat, not free speech, resonates with Supreme Court." John A. McDonald of The Hartford Courant has an article entitled "Cross Case Provokes Thomas' Ire." Bob Dart of the Palm Beach Post reports here that "Justices hear cross burning case." And Robert B. Bluey of the Cybercast News Service reports here that "Supreme Court Revisits Cross-Burning Ban."

From the wire services, UPI reports here that "Court weighs cross-burning ban"; Reuters reports here that "Justice Thomas Cites Lynchings in Cross-Burning Case"; and the Knight Ridder News Service reports here that "Justices hear arguments on cross-burning law."

From newspapers offering something of a local angle on the case, you can access here coverage from the Richmond Times-Dispatch; here from The Roanoke Times; here from The Virginian-Pilot; and here from The Tribune-Democrat of Johnstown, Pennsylvania. How, you might ask, could a Johnstown, Pennsylvania-based newspaper offer a local angle on the case? Its article begins, "A Johnstown Klansman at the center of a lively Supreme Court debate on whether cross burning is intimidation or constitutionally protected speech will not discuss the divisive case."
Posted at 08:50 by Howard Bashman

Oregon Court of Appeals rejects claim that allowing Boy Scouts to recruit in public elementary school equals establishment of religion: You can access yesterday's unanimous three-judge panel ruling at this link.
Posted at 08:20 by Howard Bashman

In Thursday's newspapers: In The New York Times, Linda Greenhouse reports here on yesterday's U.S. Supreme Court cross-burning oral argument, and here on yesterday's possibly excessive punitive damages award argument.

Charles Lane of The Washington Post reports here on yesterday's cross-burning oral argument.

The Christian Science Monitor has an interesting article entitled "Web site keeps tabs on emerging vocabulary." The Web site in question is "The Word Spy," and there you can learn about various new words including "Iraqnophobia" and "ignoranus."
Posted at 00:15 by Howard Bashman

Second Circuit to hear 9/11 insurance case: The Associated Press offers this report.
Posted at 00:15 by Howard Bashman

Wednesday, December 11, 2002
Reader feedback on my recent column entitled "Activist U.S. Court of Appeals Judges: Myth or Reality?" On Monday of this week, my monthly appellate column appeared in The Legal Intelligencer, and it is available online here. Additionally, I emailed a copy of the column, in PDF format, to the incredibly large number of people who have taken advantage of the free and easy email subscription sign-up available here.

I promised to reprint on this blog some of the most interesting emails that I have received in response to this month's column. So, here goes.

A recent former law clerk to a Ninth Circuit judge wrote:
Good column today, written with your usual inimitable calm decisiveness.

I found interesting your insistence that few judges try to impose their personal preferences on the law. We certainly agree on Judge Berzon's fine dissent in the Nuremberg Files case. But weren't you just talking about Judge Reinhardt? A smart man, but he positively -- and, I now believe, self-consciously -- delights in imposing his personal ideology upon the supine law. Perhaps he is the exception that proves your rule?

You have the best blog of which I am aware, and appear to never sleep. Please keep up the good work.
Another reader emails:
On the one hand, of course you are right.

In my year clerking for an appellate judge (Pennsylvania Commonwealth Court), the fact that the judge was a generally conservative, Republican appointee and the clerks were mainly (though not exclusively) liberal in their political leanings almost never came up, and never led to any disagreements in how any given appeal should be decided. The routine was an examination of precedent followed by a nearly inexorable conclusion that made us wonder why most of the appeals were taken in the first place.

On the other hand, liberal court-watchers are not without basis in their fears. Just looking at the past few years, the conservative Fourth Circuit effectively overruled Miranda for a few months before getting reversed in U.S. v. Dickerson, and the Bakke affirmative action decision was prospectively overruled in the Fifth Circuit in Hopwood.

Meanwhile, on the other side of the aisle, conservative court-watcher Orrin Hatch of the Judiciary Committee crafted an entire quixotic Presidential run around what appeared to be the single issue that if he were elected president, he'd be able to appoint judges who weren't liberal like the Clinton appointees were. Assumedly, he wouldn't have wasted time running if he didn't think that the president's power to appoint judges was among the job's most important duties.

And if Orrin Hatch thinks so, who are we to disagree?

The problem is not so much that "activist judges" are outcome driven, as that they are theory driven (by a theory you, the critic, do not hold). Did Judge Baer in New York decide to exclude evidence because he wants the outcome to be more murderers, rapists, and drug dealers out walking the street? Of course not.

Did the Ninth Circuit rule that "under God" in the Pledge was unconstitutional because they want children to grow up to be godless heathens? I'd have to say "no" there, too.

In all, I'm afraid that your question that the "activist judge" asks, "What result do I prefer here, based entirely on my own personal and political views?" is a straw man. Those who fear judicial activism fear that judges will instead ask, "What result follows logically from my constitutional theory, irrespective of long-standing established law and practice."

Despite the fact that 95% of the time, nearly all judges agree, there's a reason that the first serious challenges to Bakke and Miranda did not come out of the New York or San Francisco, while challenges to police conduct and the Pledge did.
A reader currently clerking for a Fifth Circuit judge writes:
I am an regular reader of your excellent blog, and to the extent that you editorialize, I almost always agree with your views. I write to make a few observations about today's Legal Intelligencer article.

First, I agree that the Senate often fails to consider "intellectual ability" and "love of hard work," and instead focuses on hot-button political issues. A non-lawyer following the confirmation process might get the severe mis-impression that federal judges decide abortion cases often, or worse, that a federal judge has broad powers to "make law" with respect to abortion, or other hot-button issues.

However, even accepting the premise that "federal intermediate appellate judges have exceptionally little opportunity to engraft their personal or political preferences onto the law," it does not follow that "[t]he intricate focus on the personal and political views of nominees to serve on the U.S. courts of appeals is quite misguided." The personal and political views of a judge are extremely useful in assessing her general attitudes about the law, which is strong evidence of how she would use her broad discretion to decide individual cases. It is idealistic to deny that judges with liberal political views are more open to the claims of civil plaintiffs and criminal defendants, and that judges with conservative political views are more skeptical of those claims. I suspect that a defendant employer appealing an adverse jury verdict in favor of a civil rights plaintiff-employee would take into consideration the political views of the members of the appellate court. Compare the settlement value of a Title VII jury verdict in the Fourth or Fifth Circuit with that of Ninth Circuit, for instance. There are countless of these garden variety civil rights cases--cases where no new law is made and no subterfuge involved--where the judge's attitude towards the underlying legislation will undoubtedly color her view of the facts.

Consider the comments of recently retired Fifth Circuit judge Robert Parker: "The court in 1980 was a court that was very liberal as it relates to a tendency to affirm jury verdicts. The federal courts were the forum of choice for lawyers who had a significant case. If they could win at the trial court, they could probably keep the verdict. From that point to now in 20 years the federal district courts in the Fifth Circuit have become the place lawyers try to avoid in civil cases because of our record for reversing jury verdicts. The state courts are the preferred forum in all three states. It's a 180 degree change." (This is from the October Issue of the Fifth Circuit Civil News,, but the site is under construction right now).

Finally, I strongly disagree with your use of constitutional cases in arguing that judges put principle over personal preference (You mention Justice Kennedy's flag burning concurrence and Judge Berzon's dissent in an abortion/free speech case). The First Amendment is so vague that it cries out for political preferences to inform its interpretation. Even though Berzon and Kennedy might have favored the other party, I suspect their votes in those cases were raw political preference with respect to the policy their vote would announce (What else can be expected of a judge when the issue has no controlling precedent on point and where the text is so broad?). A better example to illustrate your point would be where the judge disagrees with the controlling legal precedent or the policy supporting it-- irrespective of which party she favors--but applies the controlling law anyway. See e.g., Roark v. Humana, Inc., 307 F.3d 298, 315 (5th Cir. 2002) (If we were writing on a clean slate, or deciding this case en banc, the [plaintiffs] would have a strong case. . . . But as a panel we are bound by [precedent].) (Smith, J.).

To be sure, I agree with you that Judge Unfriendly should probably be confirmed, so long as he can demonstrate a judicial temperament that would allow him to cast aside his personal views. I just disagree as to how much those personal views should be a factor.
Another reader emailed to say if I wanted his views, I had to visit this post on his blog. That's one way to drum up traffic, I guess. The author clerks for a state court appellate judge in Texas.

This next comment I found to be very thoughtful:
I'm of two minds about your Legal Intelligencer piece regarding judicial beliefs and the nomination process. On the one hand, I agree that if the judge follows the rules, the opportunities for inflicting personal beliefs on the rest of us are limited. Judges are not supposed to make their reasoning fit the outcome. On the other hand, they also are not supposed to decide a case on an issue not raised by the appellant. And they are not supposed to convict the trial court of errors the appellant never gave the trial court a chance to correct. And they are not supposed to create an argument for either party. Yet they do. And I don't buy the argument that, just because they have limited opportunity to decide important or complicated cases, who we appoint doesn't matter. For the vast majority of aggrieved litigants, the regional courts of appeals are the de facto court of last resort. I guess it boils down to this, though: airing the nominee's political and philosophical beliefs does little to assure--or refute--that the judge in question will do what a judge is supposed to do, regardless of the judge's leanings.
One reader found a way to respond and plug an upcoming issue of a law review:
I've had the delight of reading your blog for two weeks now, and it's really fit nicely into my fifty minute break between Evidence and Criminal Procedure. I'm writing because I read your article which I assume was intended, among other things, to calm fears about new appointments. I tend to disagree with your point though, as I think that appellate judges have more of an opportunity to infuse their belief system into their opinions, and believe that Texas v. Johnson is sort of an outlier. But anyway, I'm also writing to let you know that the Symposium issue out some time soon from the Ohio State Law Journal, a volume on which I've bluebooked many footnotes, will be on the topic of Judicial Activism.
Another reader has emailed:
In general, this is a nicely reasoned article. I do, however, have one quibble.

There is one variety of judicial activism that is neither mythical nor so benign as you've indicated: the preconceived use of a specific nonlegal model in cases presenting new issues. As a particular example, the "law and economics" movement, of which Judge Easterbrook is the most prominent but by no means only exponent, has come up with some really, REALLY bad interpretations because cases "looked" undecided. This is most common in "big v. little" cases because the "little guy" seldom has the resources to properly handle an appeal.

Consider, for example, ProCD and its descendent Hill v. Gateway. The result--an arbitration clause buried in the midst of voluminous documentation without clear and explicit notice that it even exists still binds the end-user, even absent an end-user signature--was reached through a strained attempt to apply economic reasoning to an "unconsidered" issue. That all of the other circuits to consider the issue in this kind of context, virtually all legal scholarship that I've found, and even two district courts in the circuit (although they did follow) have criticized this rationale as a misapplication of an economic rationale for the Federal Arbitration Act should be a hint that this was an activist decision.

Of course, the problem isn't limited just to law and economics, which has a tendency (although not foreordained) to reach "conservative" results--whatever that means. The problem is just as severe with other interpretive models applied outside their domains. Were he a lawyer, for example, I shudder to think what Stanley Fish would do as an appellate judge!

None of this is to say that Judge Easterbrook is not a very bright judge, and generally a good one (if at times too convinced of the rightness of his position to fully consider contrary authority or interpretations; but perhaps that just means he's human). This one weakness, however, is a significant one that should at least be explored before a candidate for the judiciary is confirmed, even though I think it goes beyond your well-considered criteria of intelligence, commitment, and integrity. Neither am I saying that economics cannot provide any insights into legal problems. But that is all it can provide--insight. Economics cannot provide an answer, no matter how stunning that insight in a given matter. Ironically, applying economic reasoning shows why: litigation is inherently economically inefficient, as it introduces significant transaction and translation costs into resolution of any dispute, frequently exceed the economic value of the underlying dispute. Or, perhaps, this just underlines that economic reasoning is not sufficient to solve all problems, because the alternatives to litigation are worse on noneconomic grounds.

So, then, I think that some inquiry into a judicial candidate's "default mode of reasoning" is proper, but only in determining whether a candidate's preconceived mode of reasoning--not political or other beliefs--might be a handicap. Thus, I add "an open mind to alternative arguments" to the factors that the Senate should consider. Such an open mind will probably prove to be the most-valuable bulwark against "judicial activism" in the long run.
And last but not least, a longtime friend writes:
An excellent piece. I agree in whole, except that I think intermediate appellate judges can work significant change for personal or political views, but I believe that few do, and then usually in only a few cases.
Thanks to everyone who took the time to write, whether I have quoted your email here or not.

Readers looking for quite a different take on this issue from the one I offered in my column can access here the recently expressed views of Nan Aaron, President of the Alliance for Justice, who guest hosted Eric Alterman's blog yesterday.
Posted at 22:49 by Howard Bashman

Now available online at Tony Mauro reports here on today's U.S. Supreme Court cross-burning oral argument and here on the big punitive damages award argument. The Ninth Circuit may take next to forever to decide whether to grant rehearing en banc, but once granted the court doesn't waste any time bringing the case on for en banc oral argument. Back on November 22, 2002, the court granted rehearing en banc in a fascinating death penalty case out of Arizona in which the trial judge was alleged to have been using and addicted to marijuana during pre-trial, trial, and sentencing proceedings (see my earlier post providing much more information about the case here). The case was argued before an eleven-judge en banc panel yesterday, and Jason Hoppin has this very interesting report on what occurred. Finally, The Recorder reports here that "Robert 'Uncle Zeb' Berring Named Interim Boalt Dean; Popular professor will serve through 2003."
Posted at 22:40 by Howard Bashman

Third Circuit adopts supervisory rule to bind district courts ruling on qualified immunity defense: Today the U.S. Court of Appeals for the Third Circuit issued an opinion that stated, in pertinent part:
We also announce a supervisory rule to be followed in all subsequent cases in which a summary judgment motion based on qualified immunity is denied on the ground that material facts are subject to genuine dispute. So that we can carry out our review function without exceeding the limits of our jurisdiction under Johnson v. Jones, 515 U.S. 304 (1995), we will henceforth require the District Courts to specify those material facts that are and are not subject to genuine dispute and explain their materiality.
You can access the complete opinion at this link.
Posted at 22:32 by Howard Bashman

Fifth Circuit panel expresses disagreement with binding circuit law requiring estate of deceased criminal to continue paying restitution under federal statute: The case law on this issue throughout the Nation has been a mess for quite a while -- as today's Fifth Circuit ruling makes clear -- and I hope the U.S. Supreme Court finds the time to get it sorted out soon. In the interim, rehearing en banc in the Fifth Circuit is a good possibility in this case in which a three-judge panel issued its opinion today.
Posted at 22:10 by Howard Bashman

Obsessive compulsive disorder featured in a Tenth Circuit qualified immunity decision issued today: Senior Third Circuit Judge Ruggero J. Aldisert, sitting by designation as he often does with the Tenth Circuit, today issued a very interesting decision involving an arrestee suffering from OCD. Judge Aldisert's opinion explains, toward its outset:
Once at the Davis County facility, Appellant indicated on a medical screening sheet and told prebooking officers that he had OCD and required medication to stave off panic attacks. Prebooking officers erroneously noted on the sheet that he suffered from "CDC." Davis County jail officers took Appellant's medication from him and insisted -- per search procedure -- that he remove his shoes and socks. Appellant recoiled at the request, refusing because of a fear of contamination from the dirty floor. Ultimately, Appellant acceded to the demand, but incurred another panic attack in the process. The prebooking officers also forced Appellant to be fingerprinted without heeding his concerns about cleanliness. Neither Layton City nor Davis County provides any training for handling individuals diagnosed with OCD. Davis County booking procedures incorporate an intake screening allow "health trained correctional deputies" to use their discretion in dealing with sundry "mental disorders."
Later, the opinion describes the illness in detail:
As to the objective inquiry of whether Appellant's OCD-induced panic attack during the ride to jail was "sufficiently serious," Appellees downplay OCD by comparing it in gravity and prevalence to mere "sexual addiction" -- held by the Court in Riddle v. Mondragon not to rise to the level of "sufficiently serious." 83 F.3d 1197, 1204 (10th Cir. 1996); Appellee Officer King's Brief at 33. Appellant had been diagnosed with and treated for OCD over a period of at least 15 years before the December 1997 incident. Moreover, OCD does not reside in the minds of a handful of unlucky sufferers; Appellant's very real, diagnosed affliction greatly outweighs the "[v]ague allegations of eroded self-esteem, apathy, fear and feelings of differentness" that did not satisfy Estelle's objective prong in Riddle. 83 F.3d at 1204.

According to the National Institute of Mental Health, OCD impacts more than two percent of the population -- outpacing both schizophrenia and bipolar disorder in terms of frequency of affliction. National Institute of Mental Health, Obsessive-Compulsive Disorder, at (last visited Oct. 9, 2002). See also 3 AMERICAN PSYCHIATRIC ASSOCIATION, TREATMENTS OF PSYCHIATRIC DISORDERS 2097 (1989) (reporting that, as early as 1984, "[t]he lifetime prevalence of OCD in the general population [was] more than two percent"). Seeping into mainstream consciousness, the disorder profoundly affected a successful writer in the 1997 Academy Award nominated film As Good As It Gets, and the popular cable television show Monk revolves around a detective who suffers from OCD. AS GOOD AS IT GETS (Gracie Films 1997); MONK (USA Network, Inc. 2002). Although our task is not to determine whether Appellant's OCD is "sufficiently serious," it is hardly inconceivable that a jury could find precisely that. Accordingly, the objective portion teeters on a disputed material fact that makes it wholly improper for the district court to have granted summary judgment.
Based on the record, the court reinstated the plaintiff's claims against the arresting officer and the county that ran the jail in which the plaintiff was confined. You can access the court's opinion at this link.

(P.S. to Judge Aldisert -- The popular television show "Monk" now airs on the broadcast network ABC. It is indeed quite a good show, and it stars Tony Shalhoub, whose amazing depiction of criminal defense attorney Freddy Riedenschneider in a recent Coen Brothers film I previously raved about here.)
Posted at 22:03 by Howard Bashman

Boalt Hall's interim dean announced: Thanks to Denise Howell for emailing to share news that Boalt Hall has named an interim dean. You can access the law school's press release here.
Posted at 20:43 by Howard Bashman

Eugene Volokh calls in the reinforcements: I don't know whether this is serious or self-parody in response to a post that recently appeared here at "How Appealing," but Eugene Volokh announced on his blog this afternoon that he'll be on the road for the next few days, so he's calling in two brand new guest bloggers to pick up the slack. Hey, what about the eight other regular contributors to "The Volokh Conspiracy." What are they, chopped liver?

P.S. Folks who wish to keep track of such marginalia can click here to access my earlier, first ever "chopped liver" post.
Posted at 19:37 by Howard Bashman

Chuck Lane reports on today's cross-burning U.S. Supreme Court oral argument: Here, via The Washington Post's Web site. And Linda Greenhouse, too, via The New York Times.
Posted at 19:28 by Howard Bashman

The politics of new judges, in the news: Thanks to a reader for sending along these two items of interest. I have mercifully stayed away from the whole Trent Lott controversy because it hadn't yet encroached into my jurisdiction, but here's a piece posted at The American Prowler site that observes, "Even more upsetting to Republicans is the realization that Lott's comments may make it virtually impossible for them to bring a number of controversial judicial nominations to the Senate floor successfully."

And in today's Washington Post, Al Kamen writes (fifth item):
Gonzales Vs. Ridge

Homeland security chief Tom Ridge has been working hard to get his top deputies in place as quickly as possible. It seemed pretty certain that David G. Leitch, top lawyer at the Federal Aviation Administration who's been on loan to work for Ridge of late, would be the new Homeland Security Department's general counsel.

But White House counsel Alberto R. Gonzales had other ideas. He wanted the perfectly credentialed Leitch -- a former partner at Hogan & Hartson, a Bush I Justice Department official, a clerk to Chief Justice William H. Rehnquist, first in his class at the University of Virginia law school -- to be his deputy. At least until Gonzales goes to the Supreme Court.

Thus began a tug-of-war with Gonzales on one side and Ridge on the other, and with White House personnel chief Clay S. Johnson III backing Ridge, to see who would get Leitch.

Winner? Gonzales. Leitch, who turns 42 on Monday, was named to the job yesterday.
So there you have it; Al Gonzales is a sure bet to serve on the U.S. Supreme Court, according to Al Kamen
Posted at 19:13 by Howard Bashman

Death to the homosexual: Thanks to a law clerk serving on the U.S. District Court for the Eastern District of New York for emailing along a link to this document on the Amnesty International USA Web site.

Tomorrow the State of Oklahoma is scheduled to execute Jay Wesley Neill. As the document explains, "He was sentenced to death for the murder of four people committed during a bank robbery in Geronimo, in southwest Oklahoma, in 1984." The imposition of the death penalty sounds quite justified so far, doesn't it. However, as Circuit Judge Carlos F. Lucero's dissent from the Tenth Circuit's refusal to overturn Neill's death sentence makes clear, this is a case where the prosecutor relied heavily on the fact that Neill is homosexual in seeking the death penalty. The dissent quotes the following appeal by the prosecutor to the jury at the trial's sentencing phase:
I want you to think briefly about the man you're setting [sic] in judgment on and determining what the appropriate punishment should be . . . . [J]ust put in the back of your mind what if I was sitting in judgment on this person without relating it to Jay Neill, and I'd like to go through some things that to me depict the true person, what kind of person he is. He is a homosexual. The person you're sitting in judgment on--disregard Jay Neill. You're deciding life or death on a person that's a vowed [sic] homosexual.
As Judge Lucero wrote, "Exploiting his position of trust and spinning the reality of anti-gay prejudice to a pivotal position in the capital-sentencing phase, the prosecutor undermined the possibility that petitioner's sentence would be based on reason rather than emotion." Judge Lucero's dissents from both the Tenth Circuit's original decision and the revised opinion the panel issued when the full Tenth Circuit denied rehearing en banc are worth a look. I don't know very much at all about this case, but I am surprised we haven't seen more press coverage of it.
Posted at 19:04 by Howard Bashman

"Virginia Burning: Are cross-burnings speech or violence?": Dahlia Lithwick's take on today's cross-burning oral argument at the U.S. Supreme Court has just been posted online at Slate. Dahlia has given us only one Supreme Court Dispatch this week, but to make up for it today's is extra special good. In it she writes:
Out of nowhere booms the great, surprising "Luke-I-am-your-father" voice of He Who Never Speaks. Justice Clarence Thomas suddenly asks a question and everyone's head pops up and starts looking madly around, like the Muppets on Veterinarian Hospital. "Aren't you understating the effects ... of 100 years of lynching?" he booms. "This was a reign of terror, and the cross was a sign of that. ... It is unlike any symbol in our society. It was intended to cause fear, terrorize."

Dreeben, who fears he has somehow been insensitive, tries to recover. "It was used to intimidate minorities ..." he begins. "More than minorities," booms back The Voice. "Certain groups." It's not clear what, precisely, has set Thomas off about Dreeben's presentation or why he's attacking the deputy SG rather than the guy defending the Klansman. But as quickly as he wound up, he winds down, and resumes his standard posture of staring fixedly at the ceiling.
Meanwhile, a reader who has seen quite a few Supreme Court oral arguments, and who suggests a joust to determine who loves Dahlia's work the most, emailed some comments about today's other oral argument, the Can you believe how large this award of punitive damages is? case:
The punitive damages argument by petitioner's counsel this morning was, quite possibly, the worst effort I have ever seen by an advocate who is not a shoe-less southern state AG arguing a federalism case pro se. (A Skadden partner, even!!) My reaction at the time? "I can't wait to see what Dahlia Lithwick does with this."
I don't think that Dahlia will be writing up a report on that case, so I'm printing your remarks instead.

Finally, Ms. Lithwick herself emailed just a few moments ago to say, "Loving your site more every day Howard. I need How Appealing's Anonymous." Given the number of people who have been emailing over the past weeks to report how addictive they've found my site to be, it probably would be a good idea for addiction groups to begin offering HAA meetings in the very near future.
Posted at 18:24 by Howard Bashman

Some U.S. Supreme Court oral argument coverage from possibly the world's most devoted fan of Dahlia Lithwick: Yes, there was once a time when I thought it was possible that I might be the world's most devoted fan of Dahlia Lithwick, but then a Google search turned up this site run by Steph. More recently Steph has set up her own blog, and there (or, to be more precise, here and here) you can find her first-hand coverage on this week's IOLTA and wetlands U.S. Supreme Court oral arguments.
Posted at 17:12 by Howard Bashman

"Court Considers Punitive Damages Limit": Dennis Conrad of The Associated Press reports here on today's other very interesting case argued at the U.S. Supreme Court. Indeed, the only way today's two argued cases could perhaps have been more interesting was if they were combined into a single case that involved a whopping amount of punitive damages awarded to punish the act of cross-burning.
Posted at 16:56 by Howard Bashman

"Emotions Run High in Cross-Burning Debate": Gina Holland of The Associated Press now has a second article about today's U.S. Supreme Court oral argument in the cross-burning case. In it, she writes:
Normally stoic and silent during arguments, Supreme Court Justice Clarence Thomas found his voice Wednesday, condemning cross burning as a symbol of oppression during "100 years of lynching" in the South by the Ku Klux Klan.

* * *

The arguments produced an unusually candid look at the justices, particularly Thomas, who generally speaks only once or twice a year during arguments and refuses to give interviews.

"This was a reign of terror, and the cross was a symbol of that reign of terror. Isn't that significantly greater than intimidation or a threat?" Thomas, the second black to serve on the court, asked a Bush administration lawyer who supported the law.

* * *

Thomas, who was raised in segregated Georgia, said burning crosses were used to intimidate blacks and other groups.

'We had almost 100 years of lynching and activity in the South by the Knights of Camellia and the Ku Klux Klan," Thomas said. "It was intended to cause fear and to terrorize a population."

The last time Thomas spoke at such length was 1995, his fourth year on the Supreme Court, in another case involving a KKK cross display. The Klan won in a 7-2 ruling, joined by Thomas.
A reader had emailed earlier today to note the same point mentioned in the final paragraph quoted above: "Apropos of [your earlier] blog entry concerning cross-burning, I recall an article that stated that a question about the meaning of a burning cross was the only question that Justice Thomas has asked during a prior Term. For understandable reasons, it seems to get him to make an exception to his usual policy of silence, but it's noteworthy that it comes up twice."
Posted at 16:48 by Howard Bashman

Fourth Circuit vacates federal district court ruling that struck down EPA's classification of second-hand tobacco smoke as a known human carcinogen: A unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled today that the EPA's report did not constitute reviewable agency action under the Administrative Procedures Act, and thus the federal district court lacked subject matter jurisdiction to decide the matter. As the close of its opinion, the court wrote:
Every State in this circuit produces tobacco. The economy of Virginia has been dependent upon the tobacco industry, to a great extent, for almost 400 years and in the other States of the circuit almost that long and as much, or more. In context, that is about the same period of time that the Plantagenets and Tudors ruled England. North Carolina is the nation's largest producer, and North Carolina, Virginia and South Carolina together produce more than half the nation's tobacco crop. So the importance of the decision of the EPA at issue here may not be over-emphasized. Nevertheless, exclusion by the EPA of any meaningful tobacco industry representative from the advisory committee mentioned in the Radon Statute is unexplained. But these facts do not affect our lack of jurisdiction under the APA to review the report at issue in this case. The legal questions in the case are substantial. The practical consequences of the EPA Report are great and affect the livelihood of thousands. On that account, we stay the issuance of the mandate upon our decision for a period of 30 days after it has become final in order that the plaintiffs may file a petition for certiorari in the Supreme Court of the United States and seek a stay from that Court in connection with such filing.
You can access the Fourth Circuit's opinion at this link.

Update: Two readers have already emailed to note that I've overlooked an interesting aspect of this decision, which is that the case was argued before the Fourth Circuit way back on June 7, 1999. One of the two individuals who emailed -- a recent law clerk to a Fourth Circuit judge -- says that Circuit Judge H. Emory Widener, Jr., the author of today's ruling, has become renowned for the delays plaguing the issuance of his opinions. And that's putting the nicest possible spin on the email, which is why I'm not publishing it verbatim.
Posted at 15:05 by Howard Bashman

"Texas to Review Camera in Jury Room": The Associated Press is reporting that the Texas Court of Criminal Appeals has today agreed to review the juvenile death penalty case in which the trial court intends to allow cameras to record the jury's deliberations.
Posted at 13:47 by Howard Bashman

"Gun lovers up in arms over ruling": Columnist Rob Morse has an essay by this title in today's edition of the San Francisco Chronicle.
Posted at 13:44 by Howard Bashman

Unanimous Seventh Circuit panel holds that Congress validly abrogated Eleventh Amendment immunity when it extended Title VII to apply to States: The appeal presented the question whether Congress properly abrogated the States' sovereign immunity under the Eleventh Amendment when it enacted the Equal Employment Act of 1972, which extended Title VII's coverage to the States. These Eleventh Amendment, State sovereign immunity decisions tend to be rather interesting to those of us fascinated by this quite controversial area of the law, and this opinion of the U.S. Court of Appeals for the Seventh Circuit is no exception. Update: As a reader has correctly emailed to note, this opinion originally issued on September 17, 2002. Apparently today Circuit Judge Kenneth F. Ripple issued an opinion in chambers denying a motion for stay of the mandate, which for whatever reason caused the Seventh Circuit to re-post the original ruling to a portion of its Web site normally reserved for the current day's decisions. I didn't discuss this ruling back in September, but it has now caught my interest.
Posted at 13:33 by Howard Bashman

"Supreme Court Takes Up Cross-Burning Case": Gina Holland of The Associated Press covers this morning's U.S. Supreme Court oral argument. Her article notes:
Justice Clarence Thomas, the court's only black member and who rarely speaks in arguments, said crosses were part of "100 years of lynching in the South."

"This was a reign of terror, and the cross was a sign of that," said Thomas, who was raised in segregated Georgia. "It is unlike any symbol in our society. It was intended to cause fear, terrorize."
You can access here the complete article.
Posted at 12:13 by Howard Bashman

Is Israel too dangerous of a place to raise children? The unusual questions that sometimes confront federal appellate courts never cease to amaze me. Today the U.S. Court of Appeals for the Eighth Circuit decided a case arising under the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the United States in the International Child Abduction Remedies Act. Today's Eighth Circuit opinion begins:
Robert Silverman appeals the district court's ruling that his children were not habitual residents of Israel at the time their mother brought them to the United States and that, even if they were, their return to Israel would be denied because doing so would pose a grave risk of harm to them. The issues before us are whether the district court (1) improperly determined that the Silverman children's habitual residence is the United States; and (2) improperly applied the grave risk of harm defense by refusing to return the children to Israel. Because we affirm the district court on the first issue, we do not reach the second issue.
Senior Circuit Judge C. Arlen Beam dissented and would have held that the district court incorrectly resolved both questions. On the issue of Israel's dangerousness, he wrote:
The district court found that even if the children's habitual residence is in Israel, they need not be returned to Israel because they face a "grave risk of physical harm" if returned there. The district court reached this conclusion, in part, because the violence in Israel makes it a "zone of war" which is dangerous for the children.

* * *

The district court found that the current situation in Israel constitutes a "zone of war" warranting application of the "grave risk" exception. In Freier v. Freier, 969 F. Supp. 436, 443 (E.D. Mich. 1996), the district court found that Israel in 1996 was not a "zone of war" under Article 13(b). In so finding, the court determined that the fighting was 15-90 minutes from the children's home, no schools were closed, businesses were open, and the mother was able to travel to and from the country. Id. No subsequent case has found that Israel is a "zone of war" under the Convention. In fact, there does not appear to be a case that finds any country a "zone of war" under the Convention. Nor does the district court cite any evidence that these children are in any more specific danger living in Israel than they were when their mother voluntarily moved them there in 1999. Rather, the evidence centered on general regional violence, such as suicide bombers, that threaten everyone in Israel.

* * *

For these reasons, I would find that because Israel is not a "zone of war" as meant by the Convention, Julie has not met her burden of proving that a grave risk of harm exists. As no other exception applies, I would grant Robert's Hague petition, reverse the decision of the district court, and return the children to Israel for a proper custody determination in the Israeli court system.
You can access the complete ruling at this link.
Posted at 11:44 by Howard Bashman

But that land barely looks soggy: At National Review Online, Jonathan H. Adler has an essay that looks at a land owner's challenge to federal wetlands regulation now pending on the merits before the U.S. Supreme Court.
Posted at 10:39 by Howard Bashman

"Ohio Court Nixes School Funding System": The Associated Press has this report on today's ruling by the Supreme Court of Ohio, and you can access that court's decision at this link (MS Word document). Justice Deborah L. Cook, one of President Bush's nominees to serve on the U.S. Court of Appeals for the Sixth Circuit, was among the dissenters from today's ruling.
Posted at 10:34 by Howard Bashman

Elsewhere in Wednesday's newspapers: In USA Today, Joan Biskupic reports here that "Cross-burning case to test free-speech" and here that "Judges can't give gun rights to felons; High court reinforces block on convicts' firearms privileges."

In The Los Angeles Times, David G. Savage has an article that begins, "The federal death penalty is constitutional despite the 'theoretical possibility' that an innocent person might be put to death, a U.S. appeals court in New York ruled Tuesday." The LATimes also contains an editorial entitled "Cheney Wins, Public Loses."

In The Boston Globe, Lyle Denniston reports here on yesterday's Second Circuit death penalty ruling. And here you can access an article entitled "On campuses, diversity plans at risk."
Posted at 09:56 by Howard Bashman

Other federal appellate court rulings of note from yesterday: The threat of icy roads has caused local schools to open two hours late, even though the temperature here is already above freezing. Some other rulings of note issued yesterday, so let's take a look:

"Your own personal Jesus": Yesterday the U.S. Court of Appeals for the Seventh Circuit issued a decision that began, "This case concerns how far prison officials must go in furnishing religious materials to inmates in their custody." The prisoner in question was transferred into an Indiana jail that refused to allow him access, while he was imprisoned there, to his personal Bible. As the opinion explained:
When plaintiff Wesley Tarpley was moved to the jail in Allen County, Indiana, the jail personnel confiscated his personal Bible and gave him a substitute Bible to use while he was there. The substitute was the same version of the Bible as Tarpley's own, but it did not include the interpretive commentary that Tarpley's copy had. Tarpley claims that the refusal of the jail to make available the version with commentary violated his First Amendment right to free exercise of religion.
The court ruled that the prisoner had no right to a Bible that contained interpretive commentary. However, had the prisoner been Jewish, and had the interpretive commentary in question been The Talmud, the court implied on page five of the opinion that its ruling would have been different. (This case summary's title courtesy of Depeche Mode.)

Ninth Circuit Judges Stephen Reinhardt and Diarmuid F. O'Scannlian actually agree on something! So what if it's simply an order holding that appellant's brief was so very, very defective that the appeal had to be dismissed. You can access the three-judge panel per curiam decision issued yesterday at this link. When a paragraph describing an appellate brief's flaws begins with the quotation "'The violations are legion,'" chances are what's about to follow won't make some of the lawyers involved in the appeal too happy.

Unanimous en banc Eleventh Circuit cracks down on lawyers who fail to ask the trial court for leave to amend dismissed actions: Before yesterday's unanimous en banc ruling by the U.S. Court of Appeals for the Eleventh Circuit, the rule there was that federal district courts were not allowed to dismiss a plaintiff's case without providing the plaintiff one opportunity to amend the complaint. Yesterday's decision held:
A district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before the district court. We, however, conclude that this rule will be applied prospectively.
While the court's decision to apply the law properly in this area only in cases yet to be dismissed as of yesterday seems quite fair, it is bound to provoke outrage among those who believe that courts have an obligation to apply the law properly at all times, not just from now on.

Reforming prison litigation out of existence: A divided three-judge Eleventh Circuit panel decided a case of apparent first impression yesterday. The question presented was whether the Prison Litigation Reform Act of 1995 was intended to, in the words of the dissenting opinion, "stem the tide of lawsuits brought by prisoners arising from the terms and conditions of their current imprisonment, which are likely to be the most frivolous, [or] to prevent lawsuits by prisoners in general." The majority ruled, in an opinion you can access here, that the PLRA applied to a prisoner's suit challenging the terms of his confinement during an earlier brush with the law. The dissent, by contrast, reasoned:
I cannot agree that a statute passed to limit frivolous litigation with regard to prison conditions applies to an action which accrued before the plaintiff was imprisoned and which is not even related to the charges that led to his imprisonment. I am not suggesting that Congress could not have constitutionally applied the term "while in custody" as broadly as the majority holds. I am of the opinion, however, that there is no substantial support for a conclusion that it intended to do so.
All in all, a very interesting decision, and possibly another case that the Eleventh Circuit may wish to take en banc.
Posted at 08:54 by Howard Bashman

"Strom Turns 100": The December 11, 2002 issue of The Onion contains this infographic.
Posted at 01:42 by Howard Bashman

In Wednesday's newspapers: Wednesday's edition of The New York Times contains Linda Greenhouse's article entitled "Supreme Court, 9-0, Rebuffs a Gun-Seeking Felon." And here's an article entitled "Supreme Court Takes Up Redistricting Case From Mississippi." Here you can access an article entitled "Appeals Court Upholds Federal Law on Executions." Here The NYTimes reports that "Lawsuit Attacks Schools' Ban on Nativity Scenes." Felicity Barringer reports that "Internet Makes Dow Jones Open to Suit in Australia." The editorial page leads with one entitled "Keeping Dick Cheney's Secrets," followed by a second entitled "A Blow to Online Freedom."

Hmm, I wonder what The Wall Street Journal has to say about yesterday's ruling from Australia holding its parent corporation subject to suit for alleged online defamation there. Here's the answer, which prominently features our blogging colleague at InstaPundit.

In The Washington Post, Charles Lane reports that "Justices Affirm Gun Control Provision." And, while he's at it, Charles has a second article entitled "Appeals Court Upholds Death Penalty; Guarantee of Due Process Not Violated by Capital Punishment, Judges Say." Jonathan Krim has an article that runs under the headline "Internet Libel Fence Falls; Court in Australia Says U.S. Publisher Can Be Sued There." In one editorial, The Post calls the recent ruling by a New York-based federal district judge in the case of alleged dirty-bomber and enemy combatant Jose Padilla "a welcome and rational effort to impose some limits on President Bush's claimed power to designate any American citizen an enemy combatant and then detain that person without criminal charge and with almost no judicial oversight." Another editorial begins by noting that "The Virginia Supreme Court is contemplating changes to the state's rules on considering new evidence after someone has been convicted."

Finally for now, Warren Richey, who covers the U.S. Supreme Court for The Christian Science Monitor, has an article in Wednesday's newspaper entitled "Is cross burning a form of free speech? High court hears arguments in two cases that test the limits of First Amendment."
Posted at 00:56 by Howard Bashman

A reader responds to my cert. dismissed as improvidently granted question: A reader who clerked at the U.S. Supreme Court and who could very well have the honor of returning there someday in a slightly more exalted capacity has emailed in response to my cert. dismissed as improvidently granted question found at the close of last night's U.S. Supreme Court round-up:
Burning the midnight oil, I see.

It would be hard to justify requiring more votes for a DIG than for issuing a judgment on the merits of the controversy. One supposes that a DIG signifies the considered judgment of five Justices that the case is unsuitable for plenary consideration notwithstanding the fact that the case has already been accepted for briefing and argument. It does not purport to be a restatement of the view, conceivably (but not necessarily) held by as many as five Justices at the cert. stage, that the case might be unworthy of review on the basis of the facts then known.
And now for December's Pokemon-related lame attempt at humor: What does one call cert. dismissed as improvidently granted in a small, inconsequential case? A Diglett, of course.
Posted at 00:33 by Howard Bashman

Now available online at Tony Mauro reports here that "U.S. Supreme Court Shoots Down Gun Rights for Felons." Here you can access an article entitled "2nd Circuit Upholds Federal Death Penalty." If I report on the High Court of Australia's Internet defamation ruling, so can Finally, here's a report on an oral argument the Eleventh Circuit heard yesterday in a case involving three Latin American nations seeking to sue American tobacco companies under RICO in a United States federal district court.
Posted at 00:07 by Howard Bashman

Tuesday, December 10, 2002
U.S. Supreme Court round-up for December 10, 2002: Today the Supreme Court of the United States issued one unanimous opinion, one opinion that was 8-0 as to result and 7-1 as to reasoning, and an order dismissing cert. in a third case as improvidently granted over the dissent of Justice John Paul Stevens. For readers interested in whether convicted felons have any hope of getting the right to possess firearms restored, whether arbitrators or courts should decide if claims slated for arbitration are time-barred, and whether a motion for relief from a final judgment in a death penalty case necessarily constitutes a prohibited "second or successive" habeas petition, today was quite a happening day at the Court.

1. The legislators who serve in the U.S. Congress aren't called "politicians" for nothing. You see, pro-gun rights legislators prevailed in their effort to have Congress pass a statute that enabled convicted felons to regain the right to possess firearms in the informed discretion of the Secretary of the Treasury. The Secretary of the Treasury, quite busy with even more pressing business, delegated the duty to address such applications to the Bureau of Alcohol, Tobacco and Firearms. Thereafter, anti-gun rights legislators prevailed in their effort to insert into appropriations laws a specific provision that prohibits the ATF from spending any funds to examine or decide upon applications from convicted felons seeking firearm rights restoration. Indeed, Congress has prohibited such spending by ATF in every single year since 1992. A separate, non-suspended provision of the same law that would enable the ATF (if only money were available) to consider firearms rights restoration applications from convicted felons also provides for judicial review in a federal district court of the ATF's decision on such an application.

Today in United States v. Bean, No. 01-704 (U.S. Dec. 10, 2002), the Supreme Court considered whether a federal district court could proceed to adjudicate a convicted felon's request for restoration of firearm rights notwithstanding Congress's appropriation provisions that bar the ATF from acting in the first instance on such applications. The Court, in an opinion by Justice Clarence Thomas, ruled 9-0 that the answer was no. In a post I made to this blog on October 12, 2002, I wrote that "Mr. Bean is destined to lose in the U.S. Supreme Court, and by quite a convincing margin, perhaps 9-0." Today I stand by that prediction. And to the news reporter who observed the oral arguments in this case and then said to me that Bean's position would receive at least one vote, I say "guess again." My October 12th post contains a much more complete description of the background of this dispute, for those who may be interested in reading more about it.

Just a few more quick observations in closing. Bean did not directly involve the Second Amendment. U.S. Supreme Court wunderkind Tom Goldstein argued and briefed the case for Bean, and Tom did quite a wonderful job notwithstanding the result. Today's ruling does not leave convicted felons completely without a remedy. They can lobby Congress to restore funding to the ATF to consider firearm rights restoration petitions. Finally, today's ruling reversed the decision of the U.S. Court of Appeals for the Fifth Circuit. When Bean was argued at the Supreme Court, the Fifth Circuit was the lone federal appellate court that allowed convicted felons to bring firearm rights restoration actions in federal district court notwithstanding the ATF appropriations ban. You might say that the Fifth Circuit seems to take gun possession rights a bit more seriously than certain other regional federal appellate courts.

2. Big businesses love to force the consumer to pursue his or her claims in arbitration, right? The second case that the Court resolved on the merits today shows that the love of big businesses for arbitration has its limits, especially in those cases where easy victory awaits if only a federal district court could adjudicate the matter. In Howsam v. Dean Witter Reynolds, Inc., No. 01-800 (U.S. Dec. 10, 2002), the question presented was whether, in a dispute that the parties have agreed to resolve by arbitration, a federal district court or a panel of arbitrators should decide if the dispute is time-barred. Today the Court ruled unanimously (8-0 with Justice Sandra Day O'Connor recused) that the question was for the arbitrators to resolve. Justice Stephen G. Breyer wrote the lead opinion; Justice Clarence Thomas wrote an opinion concurring in the judgment. And Justice Breyer's opinion only had nine sentences that began with the word "And," but it sadly contained no instances of "For one thing" and "For another thing."

Justice Breyer's opinion reasoned that determining whether a claim subject to arbitration is time-barred is more like the questions usually left for arbitrators to decide than it is like the questions usually left for courts to decide. According to Justice Breyer's opinion, both the Seventh and Tenth Circuits had previously ruled that this question was appropriate for courts to decide, while the First and Fifth Circuits had properly been relegating the question to arbitrators.

Justice Thomas, who is no fan of the Court's arbitration-related jurisprudence (see this article of mine for a bit more background), wrote in his opinion concurring in the judgment that he would consult applicable state law to decide whether the question of time-bar was for a court or the arbitrators to decide. State law, in this instance, produced the same result that the remaining seven Justices reached.

As I've already suggested, the circumstances of this case are a bit unusual in that it was Dean Witter that ran into court to avoid having to go to arbitration. Kenneth W. Starr had the distinction of being on the losing end of this case, providing further evidence (as if any were needed) that the quality of the advocate often has very little impact in the U.S. Supreme Court.

3. Finally, today the Court dismissed cert. as improvidently granted in the case of Abdur'Rahman v. Bell, No. 01-9094 (U.S. Dec. 10, 2002). In a nutshell, the Court granted review to decide a rather complex and obscure procedural question that apparently proved to be unexpectedly even more complex (and perhaps even more obscure) than the Court originally appreciated. As a result, the petitioner, who has been sentenced to death by a Tennessee state court, probably now doesn't have much hope of having his allegation that his death penalty resulted from the prosecution's "flagrant violations of due process" considered by a federal court. Tom Goldstein served as counsel of record for petitioner in this case, making this a day not to be remembered too fondly by him. Justice John Paul Stevens dissented and would have remanded the case to the federal district court with instructions to rule on the merits of petitioner's motion for relief from the judgment.

Aside from all the other issues this case raises, it has caused me to ponder the following question. It takes only four votes to grant a petition for writ of certiorari. How many votes does it take to dismiss a petition for writ of certiorari as improvidently granted? If the answer is five, that would theoretically allow Justices actively opposed to the granting of cert. to dismiss as improvidently granted all cases in which only four votes existed for cert. Maybe then the answer is that it takes (or should take) six votes to dismiss cert. as improvidently granted? I don't know the answer; do you?

What I do know, however, is that this concludes tonight's U.S. Supreme Court round-up.
Posted at 22:45 by Howard Bashman

When the conversation is going nowhere, it never hurts to break out the Digital Underground: Contributors to the Greedy Clerks Board were engaged in friendly disagreement this afternoon over Douglas W. Kmiec's possible nomination to the D.C. Circuit and the criticism that possibility had provoked from Andrew Sullivan. Just when it seemed like every viewpoint had been aired, a contributor busted out the "Humpty Dance," and all was right with the world once again.

Skip Oliva offers some further thoughts about the possible Kmiec nomination and Sullivan's criticism thereof at this link.
Posted at 22:32 by Howard Bashman

Slate answers "What Is Sodomy?" You can find the answer here. Perhaps tomorrow Slate will provide the answer to the more difficult question, "What Is Gomorrhay?"
Posted at 22:27 by Howard Bashman

"Supreme Court Hears Redistrict Dispute": Gina Holland of The Associated Press has this report on one of the cases argued today at the U.S. Supreme Court.
Posted at 22:19 by Howard Bashman

Glenn Harlan Reynolds has an op-ed on today's Australia High Court Internet defamation ruling: The brains behind the InstaPundit site has gone insta-op-ed in The Australian. Glenn's essay is entitled "High Court throws a spanner in the global networks." For those who don't speak British or Australian English, spanner means wrench. I have already collected a ton of links to coverage of the ruling, plus a link to the ruling itself, all available here. That'll teach me to check my blog's email account at 1 a.m.

While the Australia High Court's ruling is cause for concern, Julie Hilden's essay today on FindLaw, which bears the subtitle "The Case In Favor of a Federal Statutory Immunity For Linkers," points out a truly troubling issue deserving of immediate correction.
Posted at 17:15 by Howard Bashman

Blogger Andrew Sullivan denounces possible nomination of Douglas W. Kmiec to the D.C. Circuit: Thanks to a reader for emailing that I should check out this post over at Andrew Sullivan's blog. Sullivan writes, "A great week for compassionate conservatism: the Senate majority leader says he regrets desegregation and the administration floats the idea of nominating a far-right social conservative to the federal appeals court." Maybe Sullivan should read my appellate column published yesterday, entitled "Activist U.S. Court of Appeals Judges: Myth or Reality?" Sullivan's post was useful, however, insofar as it reminded me that Douglas W. Kmiec, dean of the Catholic University of America School of Law, had an op-ed in Sunday's edition of the Los Angeles Times entitled "It's a 'Get the Bishops' Law."
Posted at 16:49 by Howard Bashman

Here and there: Today's edition of The Washington Times contains an op-ed that is harshly critical of the Ninth Circuit's recent Second Amendment ruling. In contrast, yesterday a columnist for The Baltimore Sun wrote an essay about the same ruling entitled "An overdue rebuke for Ashcroft's gun crusade." In other news only tangentially related to the Ninth Circuit, The Sacramento Bee reports here on a recent televised debate between Michael A. Newdow and another over whether God exists. Apparently neither side produced definitive evidence in support of its view.
Posted at 16:43 by Howard Bashman

Appealing to a higher authority: The Associated Press is reporting that Chief Justice Roy S. Moore of the Supreme Court of Alabama has today appealed to the U.S. Court of Appeals for the Eleventh Circuit from a federal district court's ruling that requires Chief Justice Moore to remove from Alabama's Judicial Building a large granite monument bearing the text of the Ten Commandments. The appeal comes as no surprise. Jonathan Ringel of the Fulton County Daily Report had an article late last month in which Chief Justice Moore's attorney was already predicting victory in the Eleventh Circuit.
Posted at 13:59 by Howard Bashman

As always: I will have a complete wrap-up of today's two U.S. Supreme Court opinions, plus an order dismissing cert. as improvidently granted over Justice Stevens' dissent, this evening. For those demanding instant gratification, The Associated Press offers some fairly bland reports here and here.
Posted at 12:51 by Howard Bashman

"How Appealing" mentioned today at Slashdot: The post in question says that this blog is "a surprisingly entertaining source of information on the federal courts of appeals, and a gold mine of information about this particular ruling [the Ninth Circuit's Second Amendment decision]. If you're interested at all in the activities of the judicial branch, check it out." Thanks for those very kind words.
Posted at 12:23 by Howard Bashman

Reader mail -- The exception exception in action: A reader has emailed along the following in response to my post from this morning entitled "The exception exception?":
Something akin to your hypothetical regarding an invalid exception to a criminal statute -- and whether to void the exception or the statute -- was involved in a New York Court of Appeals case several years ago. At that time, the New York rape statute covered only a crime perpetrated by a male against a female. The Court of Appeals held in 1984 that this limitation constituted an unconstitutional gender discrimination. Having done so, however, it declared that henceforth, rape could be committed by a person of either sex. The court's discussion of this issue (near the end of the opinion) is very close to the situation you discussed in the blog this morning. The case is People v. Liberta, 64 N.Y.2d 152, 474 N.E.2d 567 (1984), cert. denied, 471 U.S. 1020 (1985).
I have taken a look at that ruling of the New York State Court of Appeals, and it is indeed right on point.

Update: Another reader has emailed to add:
You're correct that the question is, in essence, one of "hypothetical" legislative intent ("What would the legislature have intended?"), quite analogous to standard severability analysis. See generally R.B. Ginsburg, Some Thoughts on Judicial Authority to Repair Unconstitutional Legislation, 28 Clev. St. L. Rev. 301 (1979).

The twist here, of course, is the creation of *criminal* culpability in a situation where the legislature expressly declined to act. The classic case is People v. Liberta, 474 N.E.2d 567 (1984). New York's rape law contained an exemption for spousal rape. In Liberta a defendant convicted of rape challenged the statute on equal protection grounds, claiming that the statute treated him differently from men who raped their wives. The New York Court of Appeals agreed that the spousal exemption violated the federal and state Equal Protection Clauses, but declined to grant Liberta the requested relief because it concluded that the legislature would likely have preferred that the prohibition be extended to rape of spouses, rather than having the rape law invalidated outright. See also, e.g., Plas v. State, 598 P.2d 966, 968 (Alaska 1979) (extending coverage of prostitution statute to males); State v. Books, 225 N.W.2d 322, 325 (Iowa 1975) (extending bribery statute to cover unlawful receipt of gifts to state as well as county employees). This "invalidate the exemption" tactic, of course, might be said to raises very difficult constitutional questions that these courts do not adequately address. A similar issue is raised in the federal context where a court's invalidation of an exemption to a benefits statute results in benefit payments to a class of persons that Congress had expressly excluded from the beneficiary class. It might appear at first glance that this would violate article I, section 9, clause 7 ("No money shall be drawn from the Treasury but in consequence of appropriations made by law."); but see Califano v. Westcott, 443 U.S. 76 (1979).
Thanks for sending this along.
Posted at 12:21 by Howard Bashman

Second Circuit's opinion reversing decision that held federal death penalty unconstitutional is now available online: You can access the ruling here. Circuit Judge Jose A. Cabranes wrote the unanimous opinion for the three-judge panel, in which Senior Circuit Judges Ralph K. Winter and Joseph M. McLaughlin joined.
Posted at 11:56 by Howard Bashman

Second Circuit reverses first of two district court rulings that invalidated federal death penalty: The Associated Press has this report, which explains:
[U.S. District Judge Jed S.] Rakoff ruled that the death penalty was unconstitutional because too many innocent people have been executed before they could be exonerated.

In a 35-page decision, the appeals court said the argument "that execution deprives individuals of the opportunity for exoneration is not new at all – it repeatedly has been made to the Supreme Court and rejected by the Supreme Court."

"There is no fundamental right to a continued opportunity for exoneration throughout the course of one's natural life," the appeals panel in Manhattan said.
The Second Circuit's opinion is not yet available online, but as soon as it is I will provide a link to it.

You can access my prior coverage of the district court decision reversed today at this link.

A second federal district court judge based within the Second Circuit -- this one in Vermont -- in September 2002 struck down the federal death penalty as unconstitutional on different, more plausible grounds. The Vermont district court's ruling was not before the Second Circuit today, but certainly will be in due course. You can access my thoughts about the Vermont federal district court ruling, and how it differed from the ruling reversed today, at this link. (Fans of Al Franken might also enjoy some of the links contained in my post about the Vermont ruling.)
Posted at 11:03 by Howard Bashman

As I had predicted, USA v. Bean is a 9-0 reversal: You can access the U.S. Supreme Court's syllabus here and the unanimous opinion by Justice Clarence Thomas at this link.
Posted at 10:23 by Howard Bashman

The exception exception? Stuart Buck, seconded by Orin Kerr, has recently questioned the aspect of Circuit Judge Stephen Reinhardt's Second Amendment ruling that struck down as irrational an exception to California's assault weapon ban for retired peace officers. They contend it is extraordinary for a court to declare an exception to a penal provision unlawful and then eliminate the exception, thereby broadening criminal liability beyond what the legislature has enacted. Instead, they seem to believe, the court should have struck down the assault weapons ban in its entirety, allowing most anyone to possess such items.

I'm not yet persuaded that this aspect of Judge Reinhardt's decision was impermissible. Consider the following hypothetical. In a jurisdiction that has abolished all common law crimes, a statute takes effect prohibiting the intentional taking of the life of another. But the statute contains an exception for doctor-assisted suicide. If a court thereafter concludes that the doctor-assisted suicide exception is unlawful, must the court invalidate the entire statute outlawing all homicides? One would certainly hope not.

There may be instances in which an exception is of sufficient importance that striking it down should cause the entire invalidation of the criminal law that contains it. Such cases require courts to read "the mind" of the legislature. The California law at issue in the assault weapons ruling contained a severability provision, and thus the question is whether the legislature would, now that it has been put to the choice, have enacted a more sweeping ban or none at all. If the court errs in making either prediction, of course the legislature can correct the error. The question is what will the law provide, if anything, in the interim. Based on my understanding of California's assault weapons ban, the Ninth Circuit very likely accurately predicted how California's legislature would have reacted if put to the choice between no assault weapons ban whatsoever and a ban that now encompasses retired peace officers.
Posted at 09:53 by Howard Bashman

A permalink for the Greedy Clerks Board: The Greedy Clerks Board was kind enough a few weeks back to confer upon "How Appealing" that board's first ever blog permalink. Today "How Appealing" returns the favor, adding the board to this blog's Other Links section. By the way, the Greedy Clerks Board's front page currently features the image of everyone's favorite courtroom advocate, Unfrozen Caveman Lawyer.
Posted at 09:46 by Howard Bashman

Elsewhere in Tuesday's newspapers: Joan Biskupic, who covers the U.S. Supreme Court for USA Today, has an article this morning entitled "Cross-burning case to test free-speech protections: Va. law says it's intimidation; KKK leader cites First Amendment rights." DeWayne Wickham explains here that "Voters seem not to mind gay-bashing insinuations." And here the newspaper reports that "Judge rejects suit on Cheney's energy task force."

David G. Savage of The Los Angeles Times reports here that "$5 Dispute Could Decide Fate of Legal Aid Program; Supreme Court will decide whether escrow interest can be used for low-income people." This article is entitled "Court Hands Cheney a Win on Disclosures; He doesn't have to reveal the names of people he met with privately or what they spoke about while formulating Bush's energy policy." Another day, another article about the Boalt Hall scandal. Today's article is entitled "Universities Struggle to Legislate Student-Faculty Liaisons; A Berkeley case highlights the vagaries of campus policy. But some raise privacy concerns." And John Meroney has an op-ed entitled "Even Lawyers Are Getting Sick of Abuses in Asbestos Litigation; Big money is going to the healthy, and that's unfair."
Posted at 07:02 by Howard Bashman

Web defamation news alert! Reuters has just reported that "Australia's highest court ruled Tuesday that a defamation case sparked by a story on a U.S. Web site could be heard in Australia, opening a legal minefield for Web publishers over which libel laws they must follow." You can access today's ruling by the High Court of Australia at this link.

The Age, a Melbourne, Australia based newspaper, already offers a variety of articles about the ruling: here you can access an article entitled "Legal experts divided over internet case"; here, "Gutnick wins landmark internet libel case"; here, "Judgement will impact on web publishers"; and here, "Gutnick 'delighted' with win." The Australian, based in Sydney, contains an article entitled "Net libel watershed." Australia's ninemsn news offers an article entitled "Landmark ruling changes Net libel cases," and here you can access a preview of the ruling entitled "High Court heads into cyberspace." Wrapping up matters, BBC News offers an article that begins, "The Australian high court has ruled that the financial publishers Dow Jones can be sued in the Australian state of Victoria over an article that appeared on their website."
Posted at 01:09 by Howard Bashman

In Tuesday's newspapers: Tuesday's edition of The New York Times contains an article that begins, "President Bush is considering naming Douglas W. Kmiec, the dean of the law school at Catholic University and a prominent social conservative scholar, to the federal appeals court based in Washington, administration officials said today." There are currently four vacancies on the D.C. Circuit, and President Bush has so far nominated only two candidates to serve on that court. Linda Greenhouse has an article entitled "Method of Funding Legal Services Is Challenged Before Supreme Court." In an editorial, The NYTimes asks the U.S. Supreme Court to grant review of the Nike commercial speech case. And here you can access Adam Clymer's article entitled "Judge Says Cheney Needn't Give Data on Energy Policy to G.A.O."

In The Washington Post, U.S. Supreme Court correspondent Charles Lane reports on yesterday's IOLTA, Fifth Amendment takings oral argument. Here you can access an article entitled "Suit Versus Cheney Is Dismissed; Judge Gives Administration Broad Victory on Oversight." A special master appointed by the Supreme Court in a river dispute is in the news here. And Maryland's governor-elect may favor some abortion restrictions, The Post reports here.

Finally, The Christian Science Monitor contains Warren Richey's preview of a case to be argued at the U.S. Supreme Court Wednesday in which "the justices are being asked to determine when a large punitive damage award becomes so 'grossly excessive' as to violate constitutional safeguards." You can access my summary of the Court's past five significant punitive damages rulings issued during the past eleven years at this link.
Posted at 00:11 by Howard Bashman

Monday, December 09, 2002
Thanks! Thanks to all who already took the time to share views on today's installment of my monthly appellate column, entitled "Activist U.S. Court of Appeals Judges: Myth or Reality?" I was hoping to run a bunch of incredibly kind emails that I received about the column, but it's too late in the day now. Tomorrow looks more promising. For now, you can access here what one contributor to the HLS Federalist Society blog Ex Parte had to say about the column.

And thanks to all the readers of this blog who email each day to make sure I'm aware of seemingly every last interesting court decision to issue throughout the vast territory of this great Nation. Thanks to one particular reader, today "How Appealing" beat The Associated Press newswire to the Web with news of the decision dismissing the Comptroller General's suit against Vice President Cheney. An anxiously awaited federal district court decision issues in the Nation's Capital and "How Appealing" is first with the news? Amazing, and it couldn't have happened without great readers like you.
Posted at 23:53 by Howard Bashman

Spreading joy throughout the blogosphere: The Harvard Law School Federalist Society blog Ex Parte is truly worth a visit. Even I'm amazed at the frenetic pace of posting over there. And it didn't hurt that the contributors were overjoyed (see here and here) to get a long overdue permalink at "How Appealing." Similarly, the good folks at The Kitchen Cabinet have moved up on the list of "How Appealing" permalinks, and it didn't escape their attention. Captain Indignant, meanwhile, wants to get my hyperlink to his blog framed to honor the occasion. And via email he most kindly reports, "You have rabid fans here at Yale, and it's quite an honor to have the link." Enough fawning; you can return now to your prior peevish state. Last but not least, White Noise, too, says "How Appealing" has made his day. When it comes to high quality sites, "How Appealing" is all about spreading joy throughout the blogosphere.
Posted at 23:17 by Howard Bashman

Now available online at Tony Mauro reports here on today's U.S. Supreme Court IOLTA, Fifth Amendment takings oral argument. Tony writes that the "tenor of oral arguments" suggested that IOLTA programs "might survive the Fifth Amendment takings challenge." Jason Hoppin reports here on the one billion dollar reduction in the Exxon Valdez punitive damages award, which now stands at a mere $4 billion. Jonathan Groner reports in The Legal Times (free registration required) that "The Center for Individual Rights is poised to leave a lasting imprint on the debate over race." The Legal Times also runs a debate over the lawfulness of affirmative action in public university student admissions (lawful here; unlawful here). Deirdre Davidson provides scenes from the McCain-Feingold campaign reform oral argument. And an article entitled "Sidley's Hired Help" reports that "On Oct. 24 Judge Richard Posner of the 7th U.S. Circuit Court of Appeals issued a biting opinion in the case that questioned whether Sidley partners have enough authority to be deemed employers." This blog, of course, ran news of that ruling on the very same day the decision issued.
Posted at 22:54 by Howard Bashman

In Justice Bedsworth's most recent column, he declares "I do not carry monkeys in my underwear": You can access the most recent installment of his always very clever column here.
Posted at 22:48 by Howard Bashman

Judge Dennis W. Shedd presided over a memorable final trial as a U.S. District Court Judge: The State has this report on the trial that the Fourth Circuit's newest addition just completed.
Posted at 22:45 by Howard Bashman

It's tricky: Reverse discrimination is big. One week ago today I reported on an Eighth Circuit ruling that allowed a white employee to sue for being subjected to a hostile, anti-white workplace. Today the U.S. Court of Appeals for the Ninth Circuit concluded in an opinion you can access here that the head of Northern Arizona University "denied equal protection of the law to whites by categorically excluding them on account of their race from pay raises given to minorities." In the words of Circuit Judge Andrew J. Kleinfeld, who concurred in part and dissented in part, "Plain as day, it's just paying minority males more than whites and females, and females more than white males, based on their race and sex."

Judge Kleinfeld disagreed with the majority over whether the university's president was entitled to qualified immunity. Judge Kleinfeld would have held "no," while the majority answered "yes." In explaining his disagreement, Judge Kleinfeld wrote, "The majority justifies qualified immunity by saying 'how tricky it is to measure whether sex and ethnicity are a significant determinant of salary.' Sometimes it is. But here, it wasn't tricky." The majority, by contrast, concluded "It's tricky." Which, of course, reminded me of a certain Run D.M.C. song on the "Road Trip" soundtrack and a certain scene (no, not this one) featuring the inimitable DJ Qualls.
Posted at 22:12 by Howard Bashman

Second Circuit panel splits three ways in case involving Indian Nonintercourse Act: You can access the lead opinion here, the opinion concurring in the judgment here, and the dissenting opinion here. The Indian Nonintercourse Act is not to be confused with the Texas no-homosexual-sodomy law that the U.S. Supreme Court agreed to review one week ago today when it granted cert. in Lawrence v. Texas.
Posted at 22:07 by Howard Bashman

"Justices Deal With Legal Aid for Poor": The Associated Press has this summary of today's IOLTA, Fifth Amendment takings oral argument. Reporter Gina Holland notes that Chief Justice William H. Rehnquist was again absent from oral arguments today.
Posted at 17:55 by Howard Bashman

BREAKING NEWS: Vice President Cheney wins suit brought by Comptroller General. You can access the decision issued today at this link. The U.S. District Court for the District of Columbia has dismissed the suit based on the conclusion that the Comptroller General lacks standing to pursue the action. The Comptroller General's suit sought to require Vice President Cheney to produce information about the composition and activities of the National Energy Policy Development Group, which the Vice President had chaired.
Posted at 13:58 by Howard Bashman

No end in sight to commentary about the Ninth Circuit's Second Amendment ruling: Stuart Buck dissents from my post setting forth my tentative views on the Ninth Circuit's recent ruling about the scope and meaning of the Second Amendment.

Meanwhile, a reader of the same post that Stuart has focused on emails to say, "You did a masterful job of stating your prediction without stating your position." That is a perceptive reading of what I have written. I have no personal view of what the Second Amendment means, and it is clear to me that I would need to do quite a bit of reading and reflecting before I would be able to decide the question.
Posted at 13:44 by Howard Bashman

Seventh Circuit redesigns its Web portal: What makes for a useful appellate court Web site? (That question was directed primarily at Rory Perry, the blogging Clerk of the West Virginia Supreme Court of Appeals -- a court that has its own new opinion blog.) Anyhow, the Seventh Circuit has today unveiled a newly redesigned home page. Don't worry, I figured out where new opinions are hiding on my first try.
Posted at 13:21 by Howard Bashman

"Activist Appellate Judges: Myth or Reality?" My monthly appellate column has just gone up online at The Legal Intelligencer's Web site, and you can access it at this link. Readers who agree with the views I have expressed therein, and even those who don't, are invited to send in comments via email.
Posted at 12:24 by Howard Bashman

"Court sees no reason for rhyme": John Baer, writing in today's edition of the Philadelphia Daily News, disagrees with the two Pennsylvania Supreme Court Justices who recently criticized a colleague on that court whose dissenting opinion was presented in rhyming verse. You can access the text of the rhyming dissent at this link. (Thanks to a reader for forwarding along the link to Baer's interesting piece.)
Posted at 12:19 by Howard Bashman

Allison Hayward reports on last week's McCain-Feingold oral argument: Here, via National Review Online. If for no other reason, the column is worth reading to see who wins "the honor of 'most smackable' attorney in the trial."
Posted at 12:12 by Howard Bashman

The AP reports on today's other noteworthy cases in which cert. was denied: Here you can access an article entitled "Supreme Court Rejects N.J. Senate Case"; here, "Court Refuses Death Row Legal Aid Case"; and here, "High Court Rejects Money Laundering Case."
Posted at 12:09 by Howard Bashman

Justice Ginsburg joins Justice Thomas in dissenting from the denial of cert. in a commercial speech case: The Associated Press offers this report. Justice Thomas's dissent begins:
This case presents an excellent opportunity to clarify some oft-recurring issues in the First Amendment treatment of commercial speech and to provide lower courts with guidance on the subject of state-mandated disclaimers. I would vote to grant the writ of certiorari.
You can access the complete dissent at this link.
Posted at 11:26 by Howard Bashman

U.S. Supreme Court grants review in no cases today: Hey, not every Order List can be like last week's. You can access the unofficial version of today's Order List at this link. Update: And now the Court's official Order List is available online here.
Posted at 10:10 by Howard Bashman

Receiving my monthly appellate column via email: For those very many readers of "How Appealing" who have signed-up to receive my monthly appellate column via email on the day of its publication in The Legal Intelligencer on the second Monday of each month, you should be receiving this month's column -- entitled "Activist U.S. Court of Appeals Judges: Myth or Reality?" -- just moments from now. For those who haven't already done so but wish to, there's plenty of time to sign up in advance of next month's column.
Posted at 10:01 by Howard Bashman

Elsewhere in Monday's newspapers: The Boston Globe reports here the sad news that the Boston-based law firm Hill and Barlow, founded in 1895, will be closing its doors for good sometime within the next sixty to ninety days. A few years back I worked with lawyers from that firm, including someone who was then a recent former law clerk to Justice John Paul Stevens, on a very interesting First Amendment-related appeal to the First Circuit in a case arising from Puerto Rico. Thanks to Hill and Barlow, I also had the pleasure of getting to know federal courts expert, and Harvard Law School professor, Richard H. Fallon, Jr.

The Los Angeles Times this morning contains an article entitled "Dean Felled by Scandal Had 2 Faces; Many at Boalt Hall call John Dwyer a top educator. Others say he had a weakness for seducing coeds." And here The LATimes offers a news analysis that runs under the headline "GOP-Led Senate Won't Be a Pushover for Bush; Many of the committee chairmen are mavericks who bring their own ideas to the table." The article describes Utah Senator Orrin G. Hatch, who will again chair the Senate Judiciary Committee, as a Republican "Bush almost assuredly can count on."

Readers interested in the Ninth Circuit should be aware that Guam, which became a part of the Ninth Circuit in 1951, is reeling after being hit by the full force of Supertyphoon Pongsona yesterday. Additional coverage is available here via the Web site of the Guam-based Pacific Daily News.

Finally for now, last Friday's edition of USA Today contained an article that begins, "Thousands of acres of wetlands across the country are being bulldozed or filled with dirt because of a 2001 Supreme Court decision that stripped them of federal protection."
Posted at 09:01 by Howard Bashman

From his Fortress of Peevishness at the Yale Law School: Captain Indignant shares his criticism of Eugene Volokh's essay entitled "Who's Right on Second? Living, breathing decisions," which appeared on the National Review Online Web site literally a few days ago.
Posted at 00:54 by Howard Bashman

The Arizona Republic's recent set of articles about the Ninth Circuit: On Sunday, December 1, 2002, The Arizona Republic ran a set of articles about the U.S. Court of Appeals for the Ninth Circuit. You can access here the lead article, entitled "9th Circuit Court handles the most cases, criticism." A second article began in a humorous fashion: "Forget those mental images of judges as aging hippies tripping through Haight-Ashbury on their way to issuing high-minded rulings. The 9th U.S. Circuit Court of Appeals has its headquarters in San Francisco, but only two of the court's 24 active judges have their offices there - the same number as in decidedly unradical Boise, Idaho." Finally, a Web feature allows you to be a Ninth Circuit Judge. (Thanks to Clayton Cramer for the indirect pointer to these articles.)
Posted at 00:39 by Howard Bashman

In Monday's newspapers: An insubstantial amount of interest has spawned lots of interest. The Christian Science Monitor summarizes here what's at stake in today's U.S. Supreme Court oral argument in Washington Legal Foundation v. Legal Foundation of Washington. This case boggles the mind even when one looks beyond its rather confusing name.

Brendan Miniter has an essay online at OpinionJournal that characterizes the Ninth Circuit's Second Amendment ruling from last week as reasoned but mistaken.

The Washington Post reports here on a dispute over whether a cross may remain on display at the Mojave National Preserve in California. And here you can access an editorial entitled "Foreign Policy by Lawsuit."
Posted at 00:05 by Howard Bashman

Witchcraft: The Web site of the organization Americans United for Separation of Church and State offers a press release dated Friday, December 6, 2002 that begins:
Americans United for Separation of Church and State and the American Civil Liberties Union of Virginia today filed a lawsuit in federal court against the Chesterfield County, Va., Board of Supervisors for maintaining a discriminatory policy on prayer before its meetings.

The plaintiff in the case is Cynthia Simpson, a Wiccan who asserts that the Board's refusal to add her to a list of volunteer clergy who give the invocations constitutes illegal religious discrimination and an unconstitutional government promotion of religion.

The Board routinely opens its meetings with prayers, usually offered by clergy from Christian denominations. (Since 2000, Christian clergy have led the prayers at every Board meeting with one exception when two Christian clergy and one Jewish rabbi officiated.) Earlier this year, Simpson contacted the Board and asked that her name be added to the list of volunteers.

In response, County Attorney Steven L. Micas sent Simpson a letter stating, "Chesterfield's non-sectarian invocations are traditionally made to a divinity that is consistent with the Judeo-Christian tradition. Based upon our review of Wicca, it is neo-pagan and invokes polytheistic, pre-Christian deities. Accordingly, we cannot honor your request to be included on the list of religious leaders that are invited to provide invocations at the meetings of the Board of Supervisors."

Board members also ridiculed and criticized Simpson's religious beliefs. Supervisor Renny B. Humphrey told the Richmond Times-Dispatch, "I hope she's a good witch, like Glinda," a reference to a character from "The Wizard of Oz." Board Chair Kelly E. Miller said, "It is a mockery. It is not any religion I would subscribe to. There are certain places we ought not go, and this is one of them."
You can access the complete press release at this link.
Posted at 00:00 by Howard Bashman

Sunday, December 08, 2002
"The Final Bakke-Lash?" Aaron Marr Page, a first-year student at the University of Michigan Law School, has an essay by this title online at The American Prospect.
Posted at 22:50 by Howard Bashman

Priscilla R. Owen will be confirmed to the Fifth Circuit, Republican Sen. Kay Bailey Hutchison asserts: See this account of Senator Hutchison's speech last week at the LBJ School of Public Affairs of the University of Texas.

On the other hand, speaking in Wisconsin last week, Democratic Senator Russ Feingold is reported to have said not so fast in an article all about the judicial confirmation process entitled "Feingold ponders future filibusters."
Posted at 22:27 by Howard Bashman

Indiana University completes investigation of porno movie taped at Bloomington campus: The Indiana Digital Student reports that officials at Indiana University's Bloomington campus have completed their investigation of a professionally produced adult film recorded on campus. Here you can access an article that begins, "At least two IU students will face disciplinary proceedings through the campus judicial system for their alleged roles in the on-campus taping of scenes for a porn film." And here you can access a second article that begins, "Before taping at Teter Quad, the adult film crew that visited IU in October performed sex acts in a studio at the campus radio station." The Digital Student promises additional coverage of this continuing controversy in its Monday edition.
Posted at 22:11 by Howard Bashman

Either improve or close down CUNY School of Law: That's what The New York Post argues in an editorial today.
Posted at 20:49 by Howard Bashman

"Vice and Virtue; The two worlds of Buddy Cianci": The Providence Journal today begins a seven-part series about the longest serving mayor of that Rhode Island city and the events surrounding the case known as United States of America v. Vincent A. Cianci Jr.
Posted at 19:25 by Howard Bashman

Roll Call reports on last week's McCain-Feingold oral argument: The article, which you can access here, begins: "As he left the ornate courtroom after delivering the lead argument for striking down the new campaign finance law, Kenneth Starr turned to a fellow lawyer in the overflowing crowd and noted with a chuckle, 'I usually don't quote Hamilton, it's usually Madison.'"
Posted at 19:09 by Howard Bashman

Is cross burning constitutionally protected free expression? The Associated Press previews here a case presenting that question that will be argued Wednesday before the U.S. Supreme Court.
Posted at 17:59 by Howard Bashman

From the San Francisco Chronicle: In today's edition, reporter Bob Egelko has an article entitled "'Intellectual feast' for U.S. high court; 9th Circuit ruling a recipe to review gun control case." The article begins:
Take the nation's most provocatively liberal federal judge, Stephen Reinhardt. Add one of the U.S. Constitution's murkiest and most controversial provisions, the Second Amendment. Throw in a simmering legal and political debate, joined by a pro-gun attorney general, John Ashcroft.
The article also includes a quote from Eugene Volokh in which he says of the opinion, "It's long and thoughtful. [Judge Reinhardt] deserves credit for confronting the issues."

Elsewhere, The San Francisco Bay Area Independent Media Center on Friday offered an article entitled "Second Amendment shot down yesterday." The article quotes David Kopel, identified in the article as a Second Amendment scholar and a staunch defender of the individual rights approach, as saying that "When footnote 1 is a book that has been exposed as a hoax, there is no reason to believe anything else in it." Anyone who in fact stops reading the opinion at footnote one will be doing himself or herself quite a disfavor, as Prof. Volokh's earlier quotation makes clear.

You can access my tentative views on the ruling here.
Posted at 12:14 by Howard Bashman

In next week's news magazines: The cover story of the December 16, 2002 edition of U.S. News and World Report focuses on this nation's system of military justice. Related offerings consist of the history of the Uniform Code of Military Justice, a glossary of key terms contained therein, an article that begins "Even with an acquittal, a court-martial can short-circuit a career," and an article about military lawyers who switch sides from prosecution to defense. Elsewhere, the magazine contains an article entitled "Not just about sex; The Supreme Court agrees to hear a case that could be a major turning point for gay rights," and the Washington Whispers feature mentions that the White House is preparing for the scenario of three possible U.S. Supreme Court vacancies.

The December 16th edition of Newsweek contains a blurb entitled "Affirmative Action: Back to the Supremes," and here you can access an article entitled "The World According to Google."
Posted at 10:26 by Howard Bashman

Here and there: Time Magazine offers an article entitled "A Rehnquist Under Scrutiny; Did Janet Rehnquist, daughter of the Chief Justice, mismanage her office?" In news pertaining to Boalt Hall, the San Francisco Chronicle has a report that runs under the headline "Friends say ex-UC dean kept his own counsel; Law school seemed 'his life, his family,'" and The Mercury News contains an article entitled "Boalt scandal shakes up UC-Berkeley." A few days back, The Sacramento Bee contained a report entitled "Tsakopoulos wetlands case goes to the top" about a case to be argued at the U.S. Supreme Court on Tuesday, December 10, 2002. The article notes that Justice Anthony M. Kennedy is recused from the case because "Kennedy is known to be acquainted with Tsakopoulos and his family." The Milwaukee Journal Sentinel contains an article entitled "Campaign reform takes a pounding; Lawyers toss book at McCain-Feingold." And the Journal Sentinel also contains an article that begins, "Poor people accused of crimes in Wisconsin are systematically denied their constitutional right to legal counsel because the state Legislature says that if they are living on as little as $248 a month, they can afford to hire their own lawyers."

On the subject of the U.S. Supreme Court's decision to reconsider the issue of affirmative action in university student admissions, the St. Petersburg Times runs an editorial in favor of that use of affirmative action. Robyn E. Blumner, a columnist for the St. Pete Times, has an essay that is harshly critical of both former Justice F. Powell, Jr. and current Justice Sandra Day O'Connor. On the topics of gay rights and affirmative action in university admissions, Blumner writes "O'Connor blows with the wind, public sentiment and how she feels that day, just as Powell did. Now Powell's saddest showings are in O'Connor's slippery hands." A columnist for the Milwaukee Journal Sentinel has a piece that begins, "Uh-oh. Allan Bakke is back. Or maybe it's his ghost." Finally for now, a columnist for The Tuscaloosa News has an essay entitled "Affirmative action needs to stay put."
Posted at 09:20 by Howard Bashman

From today's Boston Globe: An article entitled "A change in mission for Ashcroft; Terrorism focus eclipses all else."
Posted at 08:51 by Howard Bashman

In Sunday's newspapers: The New York Times contains an editorial in which it calls on the U.S. Supreme Court to overrule Bowers v. Hardwick now that the Court has accepted for review a case that provides an opportunity for it to do just that. Reporter Jacques Steinberg has a very interesting article that begins, "When a federal appeals court in New Orleans ruled in 1996 that the University of Texas Law School could not legally consider race in admitting students, lawyers at Rice University, a highly selective private college here, reluctantly decided that the ruling applied to it, too." Relatedly, Adam Liptak has a Week in Review piece entitled "Diversity's Precarious Moorings." This article reports that next up on the Ninth Circuit's docket is "Review of Mexican Truck Traffic." Katherine Q. Seelye reports here that "In Louisiana, a Democrat Wins a Tough Senate Race." The U.S. Supreme Court merits mention in this week's edition of The Ethicist column in the newspaper's Magazine section. And The NYTimes corrects (see the item under the heading "Week in Review") the most glaring inaccuracy contained in its chart published last Sunday that was intended to show the composition of the various federal courts of appeals. My post pointing out multiple errors in that chart can be accessed here.

Sunday's edition of The Washington Post contains two interesting op-eds. Here John McWhorter has an essay entitled "Diversity's No Longer the Point, Is It?" And here you can access David Broder's essay entitled "Defining The Limits Of Political Advocacy."
Posted at 00:08 by Howard Bashman

Saturday, December 07, 2002
This purports to be a partial transcript of Judge Posner's speech last month that touched on the Eldred case: Thanks to Ernie the Attorney for drawing to my attention recently this link to what purports to be a partial, unofficial transcript of Seventh Circuit Judge Richard A. Posner's recent speech that touched upon the Eldred case. I previously mentioned this speech and Larry Lessig's reaction to a press account of it at this link.
Posted at 23:59 by Howard Bashman

51-48-1: That will be the composition of the U.S. Senate in 2003, expressed as Republicans-Democrats-Independent, now that CNN has called today's Louisiana run-off election in favor of Democratic incumbent Sen. Mary Landrieu.
Posted at 23:41 by Howard Bashman

Other, more critical views about the Ninth Circuit's recent ruling on the meaning of the Second Amendment: A post over at the "Man Without Qualities" blog expresses a number of disagreements with my tentative views about the Ninth Circuit's ruling but ends up concluding that my view that the U.S. Supreme Court would affirm the Ninth Circuit's ruling is "highly credible."

Although I don't have the time to catalogue all of my disagreements with the post to which I have just pointed you, I will quickly note that at least two Fifth Circuit Judges have noted in dissent (see page 14 of this PDF file) that they believe the Second Amendment does confer a fundamental individual right, and that any restrictions on that right are therefore subject to review under the "strict scrutiny" standard reserved for fundamental rights.

Elsewhere, if you aspire to be the harshest critic of the Ninth Circuit's Second Amendment ruling and your name isn't Clayton Cramer, then you certainly have your work cut out for you.
Posted at 19:34 by Howard Bashman

In today's Washington Times: Linda Chavez has an op-ed entitled "Admissions and statistics put to the test" about the U.S. Supreme Court's decision to review two cases involving the University of Michigan's racial preferences in student admissions policies.
Posted at 17:06 by Howard Bashman

Some tentative thoughts on this week's Ninth Circuit ruling about the meaning of the Second Amendment to the U.S. Constitution: As anyone who takes the trouble to read through this Web log's archives will see, I have never expressed here (or anywhere else, for that matter) whether I believe that the Second Amendment to the U.S. Constitution guarantees to individual private citizens a fundamental right to possess and use firearms (an understanding known as the "individual rights" view) or that the Second Amendment does not afford any individual right to own or possess weapons, but only guarantees the right of the people to maintain effective State-regulated fighting forces (known as the "collective rights" view). The Second Amendment provides in full: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

This past Thursday, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision in a case known as Silveira v. Lockyer. The court ruled, in an opinion by Circuit Judge Stephen Reinhardt, that the collective rights view of the Second Amendment is the only proper understanding of that constitutional provision.

Judge Reinhardt's discussion of the point concludes:
After conducting our analysis of the meaning of the words employed in the amendment's two clauses, and the effect of their relationship to each other, we concluded that the language and structure of the amendment strongly support the collective rights view. The preamble establishes that the amendment's purpose was to ensure the maintenance of effective state militias, and the amendment's operative clause establishes that this objective was to be attained by preserving the right of the people to "bear arms" -- to carry weapons in conjunction with their service in the militia. To resolve any remaining uncertainty, we carefully examined the historical circumstances surrounding the adoption of the amendment. Our review of the debates during the Constitutional Convention, the state ratifying conventions, and the First Congress, as well as the other historical materials we have discussed, confirmed what the text strongly suggested: that the amendment was adopted in order to protect the people from the threat of federal tyranny by preserving the right of the states to arm their militias. The proponents of the Second Amendment believed that only if the states retained that power could the existence of effective state militias -- in which the people could exercise their right to "bear arms" -- be ensured. The historical record makes it equally plain that the amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession. Accordingly, we are persuaded that we were correct in Hickman that the collective rights view, rather than the individual rights models, reflects the proper interpretation of the Second Amendment. Thus, we hold that the Second Amendment imposes no limitation on California's ability to enact legislation regulating or prohibiting the possession or use of firearms, including dangerous weapons such as assault weapons. Plaintiffs lack standing to assert a Second Amendment claim, and their challenge to the Assault Weapons Control Act fails.
In the lengthy opinion, Judge Reinhardt puts forth a highly persuasive argument that the individual rights view of the Second Amendment is erroneous and that the collective rights view is the only permissible understanding. I know that elsewhere others have criticized Judge Reinhardt -- who in my view is both one of the most liberal and most brilliant judges currently serving on the federal appellate courts -- for citing as authority on a minor point an academic whose other work has been called into question, for overlooking historical evidence that supposedly supports the opposing view, and for being the the intellectual ringleader of a court that often takes radical positions only to be reversed by the U.S. Supreme Court. But when one steps back to look at the big picture, Judge Reinhardt's opinion stands as a masterful defense of the prevailing view throughout the federal judiciary of what the Second Amendment means.

And let me reiterate that very last point. Judge Reinhardt has written a very strong justification for the prevailing view among the federal judiciary of what the Second Amendment means. Judge Reinhardt's opinion does not put gun ownership rights at risk any more than they were already at risk on the day before his decision issued. Under the collective rights view of the Second Amendment, the federal and state governments may pass laws regulating gun possession and ownership. The people will be able to have whatever rights to own and possess guns that they themselves, through their elected representatives, see fit to retain.

While I mentioned on the day the opinion issued that the Ninth Circuit's decision represents a major defeat for the views previously espoused by leading individual rights Second Amendment scholar Eugene Volokh, I have not until now observed that the decision represents an equally major vindication of the views expressed by collective rights Second Amendment scholar Michael C. Dorf.

Because the Ninth Circuit's decision perpetuates a conflict with a recent ruling of the U.S. Court of Appeals for the Fifth Circuit that stands as the first ever federal appellate court ruling to endorse the individual rights view of the Second Amendment (although the enthusiasm of the entire Fifth Circuit for that ruling has recently been called into question; click here for all the details), it is possible that the U.S. Supreme Court will review the Ninth Circuit's ruling. And, if that happens, I predict that the Ninth Circuit's understanding of the Second Amendment will be affirmed.
Posted at 13:48 by Howard Bashman

The wire services are reporting: The Associated Press is reporting -- here that the U.S. Supreme Court on Tuesday will hear argument in a "challenge [to] $500,000 in fines and orders to restore four acres of wetlands"; here that "[a] woman who practices a religion rooted in witchcraft is suing county officials [in federal court] for refusing to add her name to a list of clergy invited to open board meetings with a prayer"; and here that "[a] British national who pleaded guilty to trying to blow up a trans-Atlantic flight last year has asked a judge to let him have an uncensored subscription to Time magazine."

And Reuters reports here that the U.S. Court of Appeals for the Ninth Circuit "deferred making a judgment late on Friday on a request to block a Bush administration plan to grant Mexican trucks broader access to U.S. roads."
Posted at 13:26 by Howard Bashman

In Saturday's newspapers: Today's edition of The Boston Globe contains an article reporting that "In a case that reinvigorated the debate over state-sanctioned needle-exchange programs, the Supreme Judicial Court [of Massachusetts] ruled yesterday that people who receive clean needles through such a program in one community cannot be arrested for carrying them in another."

The Los Angeles Times runs a wire service article reporting that "A federal judge Friday reduced by $1 billion the damage award against Exxon Mobil Corp. for spilling 11 million gallons of crude oil into Prince William Sound 13 years ago." Thus, the punitive damages award now stands at a mere $4 billion. The case was pending before the trial court after the U.S. Court of Appeals for the Ninth Circuit ruled on appeal that the trial court should reconsider its prior punitive damages award.

In news that should come as a surprise to no one, The New York Times reports here that "Documents Show Parties Often Mixed Fund-Raising and Policy."

The Leesville Daily Leader of Louisiana contains an AP report that begins, "Former Gov. Edwin Edwards says daily life in a federal prison is dominated by boredom, bad food and televisions that mostly show wrestling and soap operas."
Posted at 13:13 by Howard Bashman

Friday, December 06, 2002
Let's get [meta]physical: Seventh Circuit Judges Frank H. Easterbrook and Terence T. Evans each issued one published opinion today.

Judge Easterbrook's case involved, of all things, a black lung benefits dispute in which the surviving wife of a coal miner was seeking to uphold an award of survivor benefits by arguing that her husband's pneumoconiosis hastened his death from the unrelated cause of colon cancer. Judge Easterbrook's opinion contains the following somewhat jarring assertion: "Even the murder of an infant just hastens death, given that death comes eventually to us all." Although the miner's pneumoconiosis caused his life span to be shortened by at most four months, the Seventh Circuit nevertheless upheld the award of benefits in favor of his widow.

In the other decision of note, Judge Evans's characteristically well-written opinion issued today begins:
On this appeal, the government challenges a significant downward departure--it moved the defendant from a sentencing range of 18 to 24 months to a range where the actual sentence imposed was only 4 months, and that was under "community confinement" with work release. The departure was awarded for what the court termed "exceptional acceptance of responsibility." The apparent basis for the departure was the defendant's partial payment of restitution before she was sentenced. The less-than-apparent basis for the departure was the defendant's family situation and, despite the fact that she was 35 years old, her "horrible sexual abuse as a child."
As Judge Evans explains later in the opinion:
Fifteen years ago, judges could exercise considerable sentencing discretion in cases like this. Grasser, of course, did some terrible things, but she is not an altogether unsympathetic defendant. So, in years past, punishments in cases like this could vary greatly, depending upon the perception, and even whim, of the sentencing judge. But that all changed in 1987 when the federal sentencing guidelines took effect. And as we know today, the guidelines significantly cabined the sentencing discretion of trial judges. In this case, we can understand the inclination of the experienced district judge to give Ms. Grasser a break, but the departure he ordered cannot be sanctioned.
You can access Judge Evans's complete opinion at this link.
Posted at 23:07 by Howard Bashman

Fifth Circuit posts online opinion imposing financial sanctions on lawyers in case previously in the news: Today the U.S. Court of Appeals for the Fifth Circuit posted to its Web site a per curiam ruling dated November 25, 2002 that imposed more than $70,000 in sanctions against attorneys who, according to a previous Fifth Circuit memorandum, "filed several briefs with this court that contain a substantial number of outright falsehoods, determinative omissions, out-of-context quotations, and specious arguments, collectively calculated to mislead the court." You can access prior coverage of this matter from the Texas Lawyer, a affiliate, at this link.
Posted at 22:53 by Howard Bashman

Now available online at Tony Mauro reports here that "Lawyer With Republican Ties to Defend Affirmative Action," and here he mentions that the Ninth Circuit's sharply divided en banc ruling in the true threat versus First Amendment case involving the so-called Nuremberg Files Web site will be among the cases pending on cert. that the U.S. Supreme Court will consider at its conference one week from today.

Elsewhere, The Recorder gives Ninth Circuit Judge Andrew J. Kleinfeld a down arrow, asserting here that "Joined by one senior out-of-circuit judge, the 9th Circuit conservative pushes punitive damages law to the far right. An en banc panel will push it back." Finally, reporter Jonathan Ringel explains in an article you can access here that "A woman who had an abortion after a doctor incorrectly said her baby would have Down syndrome may sue the doctor for medical malpractice, the Georgia Court of Appeals held Thursday."
Posted at 22:33 by Howard Bashman

Eugene Volokh has more to say about yesterday's Ninth Circuit Second Amendment ruling at National Review Online: Eugene's essay, which bears today's date, begins by stating:
Someone asked me a few days ago, after the Ninth Circuit's latest decision about the Second Amendment: Shouldn't courts read the Second Amendment as part of an evolving Constitution? Say the Ninth Circuit was wrong, last year's Emerson decision from the Fifth Circuit was right, and the Framers thought of the Amendment as securing an individual right. Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality?
What's odd about Eugene's opening line is that the Ninth Circuit's Second Amendment ruling issued yesterday. I therefore wonder who was asking him about it a few days ago.
Posted at 16:31 by Howard Bashman

Meet Judge Unfriendly, who might soon be nominated to fill a federal appellate court vacancy near you: My monthly appellate column is now in the hands of my editor at The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, and is scheduled to appear in print on Monday, December 9, 2002.

The title that I have provisionally assigned to this month's column is "Activist U.S. Court of Appeals Judges: Myth or Reality?" Here's a brief excerpt from Monday's column:
Instead of thinking about this point in the abstract, consider the hypothetical case of state court Judge Unfriendly. He is aptly named because he is, insofar as his personal and political preferences are concerned, most unfriendly to the liberal political and social agenda.

During the time that Judge Unfriendly served in his State's Legislature, he regularly voted to limit the availability of abortions except where necessary to preserve the life or health of the mother. He also believes that Roe v. Wade reached the wrong result as a matter of federal constitutional law.

Judge Unfriendly is a fervent supporter of the death penalty. He thinks that the U.S. Supreme Court's recent federalism-Eleventh Amendment-States' rights decisions have reached the correct result. He opposes all forms of preferences for women and racial minorities. And, while serving in the Legislature, he regularly proposed inserting the words "under God" into various items of legislation.

Now, let us assume that President George W. Bush has nominated Judge Unfriendly to serve on one of the regional U.S. Courts of Appeals. Should the U.S. Senate confirm him to sit on a federal intermediate appellate court?
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Posted at 15:11 by Howard Bashman

Third Circuit, by particularly curious vote of six to five, denies rehearing en banc in case seeking press access to terror-related INS deportation proceedings: Earlier this week the U.S. Court of Appeals for the Third Circuit, by a vote of six to five with one judge recused, denied rehearing en banc of that court's recent 2-1 panel ruling which held that the press has no First Amendment right of access to attend terror-related INS deportation proceedings. The Third Circuit's order denying rehearing en banc is not available to be viewed free of charge on that court's Web site, but if you have a PACER account you can access the order online for a nominal fee via this link.

The losing parties will now presumably seek U.S. Supreme Court review given the existence of a conflict between the Third Circuit's ruling and a directly contrary Sixth Circuit ruling that you can access here. If Supreme Court review is sought in this case, it has an excellent chance of being granted.

Third Circuit Judges Dolores K. Sloviter, Richard L. Nygaard, Theodore A. McKee, Marjorie O. Rendell, and Thomas L. Ambro voted to grant rehearing en banc. Chief Judge Edward R. Becker and Circuit Judges Anthony J. Scirica, Jane R. Roth, Maryanne Trump Barry, Julio M. Fuentes, and D. Brooks Smith voted against rehearing en banc. Judge Scirica's vote against rehearing en banc is most curious given that he dissented from the panel's original ruling, and had he voted for rehearing en banc, rehearing en banc would have been granted, potentially producing a reversal of the panel's ruling. Finally, Circuit Judge Samuel A. Alito, Jr. was recused from the matter.

Update: Because different federal appellate courts follow different procedures on this issue, allow me to add that in the Third Circuit a 6-5 vote in favor of rehearing en banc with one active judge recused would cause rehearing en banc to be granted. The Third Circuit does not count recused active judges as votes against rehearing en banc. Thus, to obtain rehearing en banc in the Third Circuit, only a majority of the non-recused active judges must favor it, so long as the judges who are not disqualified constitute a majority of all the judges then in regular active service. See Third Circuit Internal Operating Procedure 9.5.3. Thanks to the reader who emailed to seek clarification of this point.
Posted at 12:27 by Howard Bashman

Shoulda, woulda, coulda: The U.S. Court of Federal Claims issued a decision on Wednesday of this week that will be of particular interest to federal appellate judges throughout the nation and of special interest to the U.S. Court of Appeals for the Third Circuit.

In denying a motion to dismiss that the federal government filed in the civilian back pay case of former U.S. Bankruptcy Judge for the Eastern District of Pennsylvania David A. Scholl, the Court of Federal Claims ruled that "the Judicial Conference placed the incumbent [bankruptcy judge] in so preferred a position that only by a demonstration that he or she had 'failed to perform' could the reappointment be denied." As the opinion explains at an earlier point:
The key question is whether the phrase "[Reappointment] should not be denied unless" is a mandatory requirement or simply a suggestion, what in legal nomenclature is described as non-mandatory or "directory."

* * *

We must, therefore, as an initial matter explore the meaning of the word "should." It is an exercise that Humpty Dumpty would glory in.
You can access the complete opinion at this link. The big news, though, is that former Bankruptcy Judge Scholl's claim that the Third Circuit wrongfully failed to reappoint him to another term has survived the federal government's motion to dismiss and will go forward on the merits. (Thanks to a reader for emailing news of this decision. This post's title courtesy of a song title by recording artist Beverley Knight.)
Posted at 11:12 by Howard Bashman

Additional accolades for "Adaptation": See this review published in today's Los Angeles Times. You can now access online Susan Orlean's original New Yorker article, which gave rise to her book, which gave rise to the movie, which gave rise to this blog post. And here's another clip from the film (Windows Media Player required).
Posted at 10:50 by Howard Bashman

Sixth Circuit examines when a church building is "used in" interstate commerce so that burning down the building can support federal arson charges: The U.S. Court of Appeals for the Sixth Circuit today ruled, in an opinion you can access here, that a federal arson charge could properly be brought against a Tennessee pastor who burned down his own church building in light of the building's use in connection with interstate commerce. In so ruling, the appellate court reversed a federal district court's decision that had dismissed the federal charge for lack of subject matter jurisdiction.
Posted at 09:46 by Howard Bashman

An appellate decision that fans of "Six Feet Under" might enjoy: Could this Web log's regard for Sixth Circuit Judge Danny J. Boggs reach even greater heights? Signs point to yes.

Today Judge Boggs, on behalf of a unanimous three-judge Sixth Circuit panel, affirmed a district court's ruling that invalidated under the Fourteenth Amendment to the U.S. Constitution a provision of the Tennessee Funeral Directors and Embalmers Act that forbids anyone from selling caskets without being licensed by the state as a "funeral director."

A few passages from the opinion merit quotation. For example, keep this in mind the next time you find yourself in Tennessee:
The quality of the caskets used potentially threatens public health. If the contents of a casket were to leak, visitors to funeral services and perhaps even ground water could be exposed to bacteria emanating from the corpse. At trial, funeral directors testified that such leakage was of particular concern when the decedent died from a communicable disease, or when the body was not embalmed. Tennessee law, however, does not require that any particular type of casket, or any casket at all, be used at burial. It is perfectly legal in Tennessee for loved-ones to provide a homemade casket, for friends to give (but not to sell) a casket for use in burial, or for a body to be buried in no container at all. This lack of regulation of body disposal is no different for those who have died from contagious diseases.
And is today's ruling a return to the discredited Lochner era? The opinion provides this answer:
Judicial invalidation of economic regulation under the Fourteenth Amendment has been rare in the modern era. See West Coast Hotel v. Parrish, 300 U.S. 379 (1937). Our decision today is not a return to Lochner, by which this court would elevate its economic theory over that of legislative bodies. See Lochner v. New York, 198 U.S. 45 (1905). No sophisticated economic analysis is required to see the pretextual nature of the state's proffered explanations for the 1972 amendment. We are not imposing our view of a well-functioning market on the people of Tennessee. Instead, we invalidate only the General Assembly's naked attempt to raise a fortress protecting the monopoly rents that funeral directors extract from consumers. This measure to privilege certain businessmen over others at the expense of consumers is not animated by a legitimate governmental purpose and cannot survive even rational basis review.
You can access the complete Sixth Circuit ruling at this link.
Posted at 09:19 by Howard Bashman

Elsewhere in Friday's newspapers: The Boston Globe reports here this morning that "Harvard Law School professor Alan Dershowitz said yesterday he has been formally notified by counsel for the state Board of Bar Overseers that it has dismissed a complaint against him by a Muslim group." The Supreme Court of Canada apparently prefers keeping the mouse free. See this article entitled "Canada court blocks Harvard bid to patent research mouse." You can access yesterday's ruling at this link.

Today's edition of The Los Angeles Times has an article entitled "Court Upholds State Assault Weapons Ban; In a rebuff to the White House, U.S. appellate panel rules that the 2nd Amendment does not give individuals the right to keep and bear arms." And here you can access an article entitled "Law Upheld on Police Complaints; Constitution doesn't protect knowingly false statements or those made with reckless disregard for the truth, state high court rules." You can access at this link yesterday's ruling of the Supreme Court of California that is the subject of this article.

USA Today contains an article entitled "Adjusted Census figures add 3.3 million residents; Controversial new release may spark lawsuits." And here USA Today collects commentary about Senator Strom Thurmond on the occasion of his 100th birthday yesterday.
Posted at 08:35 by Howard Bashman

In Friday's newspapers: Putting out of mind for the moment the very sad news for fans of the Atlanta Braves that "Veteran Glavine Chooses Veteran Mets," today's edition of The New York Times contains an article by Adam Liptak that begins:
The federal appeals court in San Francisco yesterday unanimously upheld most aspects of a California law restricting sales and ownership of the semiautomatic firearms sometimes called assault weapons. It rejected a challenge to the law based on recent interpretations of the Second Amendment by a federal appeals court in New Orleans and by the Justice Department
NYTimes columnist Nicholas D. Kristof has an op-ed entitled "Love and Race" that mentions U.S. Supreme Court Justice Clarence Thomas. The Times notes here (third item) a correction that I flagged yesterday regarding the composition of the three-judge panel hearing the McCain-Feingold campaign finance reform challenge. And A.O. Scott has penned an absolutely glowing review of the film "Adaptation" (view trailer here via Windows Media Player), a movie I can't wait to go see and hope to blog a bit more about tomorrow.

The Washington Post reports here on the second and final day of oral argument in the McCain-Feingold challenge. The article says that a ruling is anticipated by late January 2003, which would then be followed by an immediate appeal as of right to the U.S. Supreme Court. Conceivably the case could be argued there in April, allowing a decision before the end of this Term. When complex cases are argued before the Supreme Court in April, it makes for quite a dash to the finish at the Court. The Post offers an article here affectionately entitled "Strom of the Century." The article says that only four U.S. Supreme Court Justices ended up attending Strom Thurmond's 100th birthday celebration.

Finally for now, The Christian Science Monitor contains an editorial on the McCain-Feingold court challenge entitled "Big Money Is Not Free Speech."
Posted at 00:24 by Howard Bashman

Thursday, December 05, 2002
Hmm, was I asking for this? When I mentioned here last night that my blog's Bravenet hit counter has shown that "How Appealing" has been receiving more hits per day than "The Volokh Conspiracy" since Monday (and again today, believe it or not), my true purpose was to observe "This cannot be correct!"

But my readers apparently have more confidence in those numbers than I do. Here are just a couple of the emails that my post from last night provoked:
Subject: Volokh and "Co-conspirators"

Please don't go his route.

I don't read his site anymore because I don't want to read the stuff by the other "Co-Conspirators." It's generally bunk and not why I first became a fan.

And, there's no way to tell the site "ignore the non Eugene junk."

THAT is why you get more readers. Consistency. In addition to all the rest of the good things that got me in the first place.
Another reader emailed:
Why are you getting more hits than is Volokh? Because your blog is not so offensively rightist nor so egotistical. You admit to having political opinions, true; but you state them as your opinions, not as "content-neutral this-is-the-way-it-really-is," which is a serious problem with four of the Conspirators. That my own leanings are very far to the left is irrelevant; I also disdain other news/commentary sources whose politics are closer to mine, such as The Progressive, that are similarly intellectually dishonest.
Another reader writes:
I love your site having just discovered it last week after it was mentioned at some point in the NY Times. I wish I had known about it last year when I clerked for Judge [*****] (3d Cir. Ct. of Appeals).

I read Clayton's comments today and he comes off like an ideologue of the right. The First Amendment forbids elevating religion over nonreligion, and that is what the words "under God" are (reasonably) said to do. Focusing on one aspect of an opinion and then using it to argue that evolution conflicts with Christian beliefs and is thus also a first amendment problem is stupid whether said earnestly or ironically. That being said, of course Newdow is going to be overturned. It was undeniably a well-crafted opinion, though, written by a Nixon appointee.

Volokh (sp?) didn't win a fan today, either. His same argument could be made no matter who the military excluded (hey, they defend us, sure they should let blacks and Jews in, but let's keep perspective). I don't think I'll be returning to their blogs.
Finally, a current law clerk for a federal district judge in sunny Florida sent me an email tonight that concluded, "Thank you for putting together the most addictive site I've ever read."

Well, I still think that the Volokh site is great, and I'm proud to be the individual who sends the second largest number of referrals from a single-person blog over to the Volokh site. So why, then, am I reprinting these emails that seem critical of the Volokh site? Well, to the extent that any of these criticisms deserve to be considered by someone who can address them (a point I leave to others to decide for themselves), they won't do much good simply clogging up my email in-box. From this point on, however, I don't intend to engage in any further statistical comparisons with The Volokh site (which, again, I'm certain gets more hits than my site notwithstanding what the numbers seem to be saying), and anyone who wishes to express criticism of that site is cordially invited to email it directly to Eugene Volokh at this address.
Posted at 23:57 by Howard Bashman

Beautiful like me: If you happen to be a self-confessed appellate law geek who might enjoy reading a quite interesting discussion about a vexing problem of federal appellate jurisdiction, Second Circuit Judge Sonia Sotomayor has a wonderful nineteen page opinion concurring in the judgment that issued today.

The question presented seems rather straightforward: whether the losing party filed its notice of appeal in time. Judge Sotomayor concludes the answer is yes, because no judgment on a separate piece of paper ever was filed in the district court. Her opinion, however, does not note that effective December 1, 2002 (as I explain in more detail toward the end of a short article you can access here) the rules governing the time for appeal in the absence of a judgment on a separate piece of paper have changed.

Another interesting point that Judge Sotomayor addresses is whether the portion of Fed. R. App. P. 4(a)(4)(A)(vi) that tolls the time for appeal if a "motion for relief under Rule 60" [emphasis added] is filed within ten days of the entry of judgment means that every possible Federal Rule of Civil Procedure 60 motion filed within ten days of the entry of judgment will toll the time for appeal. Judge Sotomayor argues persuasively that the answer must be "no," and she reads special significance into the use in Appellate Rule 4(a)(4)(A)(vi) of the words "for relief," advancing an argument that I previously never encountered or had reason to ponder. The majority, by contrast, took only nine pages to reach the result in which Judge Sotomayor concurred.

For these reasons, Judge Sotomayor's opinion concurring in the judgment is a must read for appellate geeks like me. (This post's title courtesy of JoyDrop's fine song, "Beautiful.")
Posted at 23:23 by Howard Bashman

Too much information? A mother whose daughter became engaged to a man whom the mother mistrusted had a private investigation agency do a bit of checking into the man's background. Today the Eighth Circuit ruled, in a decision you can access here, that the man could pursue his claims under the Fair Credit Reporting Act against his prospective mother-in-law and other defendants.
Posted at 23:11 by Howard Bashman

Why I love the Seventh Circuit: Reason eight -- because the court actually imposes sanctions on attorneys who fail to follow the rules, and if you make the same mistake twice you might even get suspended from the practice of law before that court! See today's ruling in this case, which closes with the following passage:
As for [attorneys] Anaclerio and Neumeister: we grant them 14 days to show cause why sanctions (not only fines but also suspension from practice) should not be imposed for their egregious disregard of obligations to the court--obligations that stem in part from Rule 28, in part from the statutes limiting the subject-matter jurisdiction of the federal courts, and in part from the promises [the attorneys] made [to the Court] last July. This time we will not be so credulous.
It will be interesting to see what happens.
Posted at 22:58 by Howard Bashman

Now available online at Jason Hoppin of The Recorder has a truly excellent, must read report on today's ruling by the U.S. Court of Appeals for the Ninth Circuit in a case presenting the question whether the Second Amendment to the U.S. Constitution confers an individual right to bear arms. As best I can tell, "How Appealing" was the very first Internet site to report on the ruling, clocking in with this report at 1:24 p.m. eastern standard time today.

And here you can access an article entitled "Boalt Near Naming of Interim Dean."
Posted at 22:23 by Howard Bashman

Eugene Volokh responds to today's Ninth Circuit ruling about the Second Amendment's right to bear arms: You can access his thoughts here. In sum, he calls the decision "Disappointing."
Posted at 22:09 by Howard Bashman

Bakke -- "to the drawing board" or "to the future"? Michael Kinsley at Slate has an essay entitled "Bakke to the Drawing Board" about the U.S. Supreme Court's orders earlier this week granting review of cases that will allow the Court to reconsider its badly splintered ruling in University of California Regents v. Bakke. Kinsley's essay starts out promisingly but then quickly turns into quite a mind-bender. I think his main point is that even though Barbara Grutter may have been objectively more qualified than the racially preferenced applicants who were instead admitted into the University of Michigan School of Law, taking away those preferences will do little to guarantee that she would be one of many qualified yet passed-over candidates who would be chosen to fill the newly opened vacancies. Of course, assuming that point to be true still produces the reaction "So what?" because inevitably some applicants who were unfairly excluded due to racial preferences would be chosen to fill those vacancies, whether or not Grutter gains admission. John Rosenberg of the blog Discriminations has some additional thoughts and criticism of the Kinsley essay that you can access here.
Posted at 21:57 by Howard Bashman

Could Ninth Circuit Judge Stephen Reinhardt be taking a shot at the Federalist Society and the U.S. Supreme Court's view of federalism? Footnote thirty-nine of his opinion today in the Second Amendment case states:
We use the terms "Federalist" and "Anti-Federalist" as they were originally intended and as they plainly read, as opposed to the current paradoxical distortions of the terms. For some inexplicable reason, the term "Federalist" is currently used to refer to those who favor devolving fundamentally national functions upon the individual states, rather than to those who favor granting to the national government the powers necessary to operate effectively and to promote the social compact that underlies American democracy.
As I have previously explained, Judge Reinhardt "is one of the most liberal and most brilliant judges currently serving on the federal appellate courts."
Posted at 20:17 by Howard Bashman

If my faint criticism of Prof. Volokh's National Review Online essay today wasn't enough for you: Former writer Greg Beato provides an even more thoughtful (and, perish the thought, even more sarcastic?) discussion here.
Posted at 18:41 by Howard Bashman

The AP is reporting: You can access here an article entitled "Court Weighs Campaign Finance Arguments." And here's an article entitled "Thurmond Celebrates 100th Birthday." The article about Strom Thurmond's birthday explains that every U.S. Supreme Court Justice other than Chief Justice Rehnquist, who is recovering from knee surgery, and Justice Clarence Thomas attended the celebration.
Posted at 18:32 by Howard Bashman

Sizing up the bloggers: Not quite sure how these numbers were calculated or what it all means, but it's nice to be included among some quite worthy competitors.
Posted at 18:28 by Howard Bashman

Interior Secretary Gail A. Norton to become a federal appellate judge? That's what Washington Post reporter Al Kamen suggested in this column dated yesterday. He wrote:
There's been chatter that Interior Secretary Gale A. Norton may be eyeing a federal appeals court seat one of these days. Detractors might criticize her for a lack of courtroom experience. She's been getting some experience lately, but not perhaps the kind she's looking for.

First U.S. District Judge Royce C. Lamberth held her in contempt a few months ago for fraud on the court in a case involving the Interior Department's administration of Indian trust funds. Now U.S. District Judge Emmet G. Sullivan is looking at a possible contempt of court citation if he determines there's been a violation of a consent decree to protect manatees in Florida.
You'll need to scroll down a little more than halfway into Kamen's article to locate this passage.
Posted at 18:23 by Howard Bashman

Clayton Cramer addresses the Ninth Circuit's latest word on the Pledge of Allegiance case: You can access his comments here. Given that Clayton is also something of a Second Amendment historian, it will be interesting to see whether he will have any comments to share regarding today's Ninth Circuit Second Amendment ruling, which I discuss several posts below. (Update: And now he does offer some remarks about today's Second Amendment ruling.)
Posted at 15:25 by Howard Bashman

Ninth Circuit grants rehearing en banc to determine if federal district court may reject criminal plea agreement as too lenient: The U.S. Court of Appeals for the Ninth Circuit today has granted rehearing en banc in a case that presents the question whether a federal district court may reject as too lenient a plea agreement entered into between the federal government and a defendant charged with a serious crime. In the case in question, the government charged the defendant with first degree murder but then agreed to enter into a plea agreement on the charge of second degree murder with a specified much shorter sentence. The trial judge viewed the agreement as too lenient and ordered that the first degree murder charge be decided by a jury. You can access the order granting rehearing en banc at this link. You can access the unanimous three-judge panel Ninth Circuit opinion refusing to overturn the district court's rejection of the plea agreement on writ of mandamus at this link.
Posted at 14:29 by Howard Bashman

"Court Weighs Campaign Finance Arguments": The Associated Press offers this report just posted online. The article perpetuates the error that the three-judge federal district court panel consists of two appellate judges. Allison R. Hayward's National Review Online essay dated yesterday made this same mistake. In fact, the three-judge district court panel considering the case consists of D.C. Circuit Judge Karen LeCraft Henderson and D.C. District Court Judges Colleen Kollar-Kotelly and Richard J. Leon.
Posted at 14:15 by Howard Bashman

BREAKING NINTH CIRCUIT NEWS: In a three-judge panel opinion written by Circuit Judge Stephen Reinhardt, the Ninth Circuit today engages in a detailed consideration of the Second Amendment to the U.S. Constitution and concludes that the Second Amendment confers no individual right to bear arms. Let the partisans on both sides begin the festivities!

Circuit Judge Raymond C. Fisher joined in Judge Reinhardt's opinion. The third judge on the panel, Senior Circuit Judge Frank J. Magill sitting by designation from the U.S. Court of Appeals for the Eighth Circuit, did not join in the portions of Judge Reinhardt's opinion that analyzed the Second Amendment to reject the individual rights view of that provision, arguing that the discussion was unnecessary because an earlier Ninth Circuit ruling had already rejected the individual rights view and bound this panel.

The conclusions reached by Eugene Volokh, who is described in the opinion as one of "a prolific cadre of fervent supporters in the legal academy" of the individual rights view of the Second Amendment, are the target of some pointed criticism in Judge Reinhardt's opinion. I will await Prof. Volokh's response with interest. (As an aside, Judge Reinhardt's opinion cites news articles by two faithful readers of "How Appealing," New York Times reporter Adam Liptak and Jason Hoppin of The Recorder.)
Posted at 13:24 by Howard Bashman

I dissent from that headline: I'm somewhat amazed that The Associated Press has decided to report on an unpublished decision that the Tenth Circuit released on Tuesday of this week, but the public's appetite for news of the weird obviously cannot be sated. The article in question carries the headline "Court Says Slippery Shower Is Not Cruel." I think that a slippery shower can be quite cruel, as the plaintiff prisoner's injuries in this case demonstrate. What the Tenth Circuit in fact appears to have held is that a slippery shower is not unusual, and thus fails to qualify as "cruel and unusual" punishment under the Eighth Amendment.
Posted at 11:23 by Howard Bashman

Even more news from Cincinnati: The Cincinnati Enquirer reports here that "City asks full court for new ruling; Justice Stevens didn't consider that menorah case was strictly about physical structures, lawyers say." We are already well into the sixth day of Hanukkah, so we are rapidly approaching a time when this dispute will seem so much more theoretical than it probably does right now. The Enquirer also runs an AP story that reports: "Three Kentucky counties ordered to remove displays of the Ten Commandments at courthouses and a school asked a federal appeals court panel Wednesday to overturn that order and allow the displays."
Posted at 11:14 by Howard Bashman

Pint-sized Padilla: Thanks to a reader who emailed to note that a much smaller-sized PDF file containing yesterday's quite interesting "dirty-bomber" "enemy combatant" opinion is now available here via the Web site of the U.S. District Court for the Southern District of New York. (Oh no, I'm again resorting to scare quotes!)
Posted at 11:01 by Howard Bashman

Trying to make the best of a bad situation: Yesterday I noted the oddity of a Sixth Circuit decision in which the Circuit Judge who wrote the three-judge panel's opinion had the pleasure of noting his dissent from an aspect of the decision in the opinion's closing paragraphs. My observation -- entitled "Sixth Circuit Judge writes majority opinion that includes his own dissent from the result" -- spawned the following email from a professor of law at the University of Dayton Law School in Ohio:
I think we have to take US v. Boyd (the 6th Cir. case you linked to [yesterday] morning) as further evidence of the critical shortage of judges in the 6th Circuit (which you mentioned the other day). When you don't have enough judges, then, of course, each judge's workload increases and the guy writing the majority opinion is sometimes just going to have to do the dirty job of dissenting from himself.

Thanks for the outstandingly informative and readable blog, which my browser gets pointed to at least once (and usually more frequently) each weekday.
Coincidentally, this morning I received an email from a recent former Sixth Circuit law clerk who wrote, "by the way, like pretty much every other intellectually-minded lawyer in the country, I love your blog" and added that the judge for whom this person recently clerked "I think also gets a kick out of it." Thanks for sending along those very kind words.
Posted at 10:45 by Howard Bashman

Now available at National Review Online: Eugene Volokh argues that universities should be more forgiving, not less, when it's the military that discriminates against gays. Indeed, why should we expect or take action to encourage the government to set a praiseworthy example for others to follow? James L. Gattuso writes about the Americans with Disabilities Act as it applies to cyberspace. And James Edwards Jr. wishes Strom Thurmond a happy 100th birthday.
Posted at 09:23 by Howard Bashman

Mention news about tobacco litigation, and is there: This is rather cool.
Posted at 07:55 by Howard Bashman

Elsewhere in Thursday's newspapers: Well, I will be snowbound at home today -- even my son's school has closed, as have most area schools, on the threat of four to eight inches of snow, and it's coming down at a good clip already -- but thanks to the Internet the rest of the world remains close at hand.

In USA Today, Joan Biskupic reports here on yesterday's anti-abortion protester U.S. Supreme Court oral argument. Elsewhere in that publication today, here's an article entitled "Judge says 'dirty bomb' suspect can consult lawyers"; access "Campaign-finance law argued in court" here; and here's a letter to the editor entitled "Base college admission solely on merit."

Today's edition of The Los Angeles Times reports here that "Court Affirms Pledge Ruling; Appeals panel rebuffs attempts to nullify its decision outlawing the phrase 'under God.'" The article explains that yesterday's decisions left California Governor Gray Davis feeling, well, kinda gray. The article goes on to say that a ruling on pending petitions for rehearing en banc is not expected until February 2003, but who really knows for sure. Here The LATimes reports that "U.S.-Born Terror Plot Suspect Allowed Lawyer; But the same district court ruling upholds the administration view that Jose Padilla can be held uncharged as an enemy combatant." The LATimes covers yesterday's three-judge federal district court panel McCain-Feingold campaign finance reform oral argument here. The newspaper runs a very interesting article entitled "Ex-Cons Exiled to Outskirts; Iowa sex offenders, forbidden to live within 2,000 feet of schools and child care centers, must crowd into pockets of desolate housing." The article goes on to explain:
A new Iowa law — one of the toughest in the nation — prohibits any sex offender who has victimized a minor from living within 2,000 feet, or roughly six city blocks, of a school or child-care center.

The law has effectively exiled hundreds of child molesters, pedophiles, porn photographers and rapists to ragged hideaways on the outskirts of town. "They're colonizing us," muttered Kenny Rhodenbaugh, 43, convicted of sexual assault on his sons' teenage baby-sitter.

In downtown Iowa City — the state's third-largest urban center — just one block is open to sex offenders. In Dubuque, virtually all the affordable apartments are off limits; only the stately homes on the golf course are legal. Nearly all of Des Moines is out of bounds, including the homeless shelters. Many rural towns are closed as well because the 2,000-foot rule applies to home day-cares as well as commercial centers.

And in the industrial city of Waterloo (pop. 64,000), offenders like Zahnd — who was convicted of sexual abuse for impregnating a 13-year-old — have little choice other than two residential motels with bare-bones furnishings, both miles from the nearest bus stops.

Banished from the homes of the few relatives who still support them, forced to live far from their jobs and their counselors, the sex offenders fume.
In The Boston Globe, Lyle Denniston has an article entitled "Court OK's jailing illegal combatant, but allows counsel." And The Globe offers two campaign finance related articles: one on yesterday's campaign finance reform court challenge; and another entitled "On campaign finance, a debate about law's reach; Corporate pledges for DNC convention provoke an outcry."
Posted at 07:30 by Howard Bashman

In Thursday's newspapers: In Thursday's edition of The New York Times, Linda Greenhouse reports on yesterday's U.S. Supreme Court oral arguments. Her article is especially noteworthy because it observes in closing that the anti-abortion protestor case happens to raise a very interesting issue under the Hobbs Act. Adam Liptak reports here that "A federal appeals panel in San Francisco ruled yesterday that the atheist father who challenged the Pledge of Allegiance on behalf of his daughter had a right to bring the case. In its ruling, the panel reaffirmed its view that allowing schoolchildren to hear the words 'under God' in the pledge amounts to 'unconstitutional indoctrination.'" We are almost at the point where wagering will be allowed in Las Vegas over the date on which the Ninth Circuit will take the case en banc. You can access here an article entitled "2 Sides Open Fight Over Campaign Law," and here a related article that runs under the headline "Clinton's Nemesis, Starr, Gets Another Day in Court." Benjamin Weiser reports here that "Judge Says Man Can Meet With Lawyer to Challenge Detention as Enemy Plotter." In an op-ed, an associate professor at the Yale Law School asks "Can the Supreme Court Change Its Mind?" In a word, yes. Are his final exams this easy?

Over at The Washington Post, Charles Lane reports on the anti-abortion protestor case and also mentions the Hobbs Act angle. Lane also has an article entitled "Justices Ponder the Reach Of Miranda Rights Ruling; Rehnquist's Absence Felt in Proceedings." Here The Post reports that "Campaign Law Case Brings Debate, Crowds; McCain-Feingold Bill Called Threat to Free Speech -- and Key to Honest Elections." The Post also contains an editorial that strongly supports a decision upholding the campaign finance reform law. In a front page article you can access here, The Post reports that "A U.S. citizen accused of plotting to explode a radiological 'dirty bomb' in the United States must be granted access to an attorney to challenge his detention as an enemy combatant, a federal judge in New York ruled yesterday." And, Strom Thurmond turns 100 years old today, The Post notes here.

Finally for now, Thursday's edition of The Christian Science Monitor contains an editorial about the racial preferences in university student admissions cases that the U.S. Supreme Court agreed to review this past Monday. The editorial, however, does not argue for a preferred outcome, hoping instead simply for a clear answer.
Posted at 00:09 by Howard Bashman

Wednesday, December 04, 2002
This cannot be correct: On Monday of this week, the Bravenet hit counter here at "How Appealing" registered 7,030 hits. Yesterday, that hit counter registered 6,104 hits. Today, with just a few more minutes left in the day, the hit counter stands at 6,134. My good friends at "The Volokh Conspiracy," by contrast, registered 4,630 hits on Monday, 4,372 hits yesterday, and so far 4,284 hits today, according to that blog's Bravenet hit counter. Could it truly be that "How Appealing" so far this week has received more hits than "The Volokh Conspiracy," even before adjusting the statistics for the fact that there are nine Volokh co-conspirators, whereas here it's just little ol' me? Nah, can't be.
Posted at 23:58 by Howard Bashman

The weather outside could be frightful: I hold the view that when it comes to winter in the northeastern states, it's not the cold, it's the absence of humidity. The weather forecast for tomorrow both for where I live and where I work predicts four to seven inches of snow falling throughout the day, beginning early in the morning. Fortunately, at the urging of my wife, I brought home a whole bunch of work, stuff I need to re-read to prepare for my Third Circuit oral argument scheduled for December 18, 2002 at 1 p.m. in Philadelphia in this rather interesting case.
Posted at 23:21 by Howard Bashman

The AP is reporting: You can access here an article entitled "Court Says Father Can Challenge Pledge"; here an article entitled "City Asks Court to Rethink Hanukkah Case"; and here a report entitled "Court Hears Arguments on Mountaintop Mines" reporting on an oral argument that the U.S. Court of Appeals for the Fourth Circuit heard today.
Posted at 23:08 by Howard Bashman

Now available online from Today was Robbins, Russell, Englert, Orseck and Untereiner day at the U.S. Supreme Court, because that eight-lawyer firm had its attorneys arguing for a principal party in both of the argued cases today. (So what if those lawyers were arguing for anti-abortion protestors in one case, and in the other a police officer who admittedly sought to coerce information from a criminal suspect believed to be on death's door -- these litigants are entitled to the best legal representation available, and today they certainly received it). Tony Mauro reports on the abortion protestor case here and on the coerced confession-qualified immunity case here. According to an Associated Press news report that you can access here about the coerced confession case, Justice Stephen G. Breyer expressed his agreement with my recent observation when he said that ""No one is talking about weakening or overturning Miranda."

Elsewhere on, Jason Hoppin reports here on the Ninth Circuit's Pledge of Allegiance related rulings today. You can access my coverage earlier today of these developments here. An article you can access here reports that "'Enemy Combatant' May Challenge His Detention." And here you can access an article entitled "11th Circuit Upholds $4M Award in Death of Air Force Cadet."
Posted at 22:56 by Howard Bashman

Dahlia Lithwick addresses "Racketeering for God; The Supremes consider whether violent abortion protesters are racketeers." You can access her report on today's U.S. Supreme Court oral argument at this link. At the close of her report, she writes:
I will take just one more second to note, however, that the next time I pronounce a term "the lamest ever" or opine on the chief justice's likelihood of living injury-free for the next 20 years or offer wacked-out, sports-book-type odds on either of the above, kindly take me out back and thrash me. This would not constitute racketeering. It would be for my own good.
"The lamest Term ever" characterization has indeed fallen by the wayside thanks to this past Monday's developments. By the way, Dahlia's report also notes that Chief Justice William H. Rehnquist remained absent from the bench today, as he's still recovering from his recent knee surgery.
Posted at 20:38 by Howard Bashman

Reader mail: Just received the following email:

Judge Ferdinand F. Fernandez' order in Newdow denying intervention to the U.S. Senate contains the following sentence and footnote:

"Moreover, if the separate houses of Congress have standing, a challenger of a law would have to contend with fighting the United States itself, and separately defending himself against the Senate and the House of Representatives, each of which would be able to appear as a separate litigating party in the case. fn. 5
"fn. 5: In principle, he might also have to separately contend against the President, whose ability to effectively sign the law in question can be said to have been affected. We see little other than mischief arising from a system of intervention as unregulated as that. Constitutional standing doctrine is the apotropaion for that threatened malady. It must be applied here."
Apotropaion is, of course, - "An object inimical to demons, something used to protect against or drive away demons." From the Greek "apotropaion" = "averting evil."

A quick check discloses that "apotropaion" has been used in only four other decisions included in the Lexis Mega database. Strangely enough, all four were authored by Judge Fernandez.
Now that news of this word's existence is known to a wider audience, perhaps it won't be long until we will be seeing it in the published decisions of First Circuit Judge Bruce M. Selya, a first-rate purveyor of uncommon words.
Posted at 15:21 by Howard Bashman

CNN reports on today's abortion protestor U.S. Supreme Court oral argument: Here.
Posted at 14:44 by Howard Bashman

"Break up the 9th Cir.": That's what Eric Schippers argues in an essay published on Monday in The National Law Journal.
Posted at 14:43 by Howard Bashman

BREAKING PLEDGE OF ALLEGIANCE CASE NEWS: The U.S. Court of Appeals for the Ninth Circuit today ruled that non-custodial parent Michael A. Newdow has standing to continue his challenge on his daughter's behalf to the inclusion of the words "under God" in the language of the Pledge of Allegiance. The ruling also denied the motion by the child's mother to intervene, explaining "We hold that Banning has no power, even as sole legal custodian, to insist that her child be subjected to unconstitutional state action." Today's ruling was issued by the same three-judge panel that decided the case in the first instance. You can access today's unanimous ruling on the issue of Newdow's standing at this link.

The panel also issued an order today denying a motion to intervene filed by the U.S. Senate, undoubtedly providing many Senators with another reason in favor of why the Ninth Circuit should be divided.

You can access the three-judge panel's original ruling, issued on June 26, 2002, at this link. Perhaps today's rulings will clear the way for the full Ninth Circuit to begin considering the petitions for rehearing en banc that have been filed in the case. You can access here my earlier coverage of the Ninth Circuit's original ruling in this dispute.
Posted at 13:26 by Howard Bashman

Yesterday's en banc The First Circuit cigarette ingredient disclosure ruling is now available online: You can access it here. What's immediately striking is that the case was decided by an en banc panel consisting of just three circuit judges! What's secondarily striking is that the opinion consists of a lead opinion announcing the judgment of the court, an opinion concurring in the judgment, and a dissent. Also odd is that while news coverage has stated that the decision issued yesterday, the opinion itself bears the date November 22, 2002 (this has since been fixed, and now the opinion bears the date of December 2, 2002). I may have additional thoughts to share here later once I've had a chance to read through this lengthy decision.
Posted at 12:14 by Howard Bashman

Today's ruling in favor of the alleged dirty bomber is now available online: You can access it here, courtesy of FindLaw. Be forewarned, this opinion is a 105-page scanned PDF document.
Posted at 12:02 by Howard Bashman

The AP reports from today's McCain-Feingold oral argument: Here's an early report on today's festivities. Someone should tell the AP reporter that what she's observing is an oral argument before a three-judge federal district court panel, not a three-judge federal appellate court panel. Update: This more recent AP report avoids the error I identified in this post.
Posted at 11:47 by Howard Bashman

At National Review Online: "How Appealing" reader Allison R. Hayward has an essay entitled "McCain-Feingold Goes to Court." Her essay helpfully points out that the three-judge district court panel considering the case consists of Circuit Judge Karen LeCraft Henderson and District Judges Colleen Kollar-Kotelly and Richard J. Leon. Allison's essay also links to this very helpful collection of court filings in the case.

Additionally, Rod Dreher has an essay today that previews today's U.S. Supreme Court oral argument in Scheidler v. National Organization for Women, which it now appears was argued today by my friend Roy T. Englert, Jr.
Posted at 11:34 by Howard Bashman

Good news for the alleged dirty bomber: The Associated Press is reporting:
A federal court has authority to decide whether Jose Padilla, a former Chicago gang member accused of plotting with terrorists to detonate a radioactive "dirty" bomb, was properly detained as an enemy combatant, a judge ruled Wednesday.

Padilla has been barred from meeting with lawyers since his arrest May 8. U.S. District Judge Michael Mukasey said Wednesday that Padilla may meet with them now.
You can access the complete article at this link. The Second Circuit now awaits the federal government's inevitable appeal.
Posted at 10:40 by Howard Bashman

Sixth Circuit Judge writes majority opinion that includes his own dissent from the result: Be sure to check out the final four paragraphs of this ruling that the U.S. Court of Appeals for the Sixth Circuit issued today.
Posted at 09:34 by Howard Bashman

Chief Justice Rehnquist missed oral arguments again yesterday: The Seattle Times mentions this here.
Posted at 09:20 by Howard Bashman

Now on The AP newswire: The Associated Press reports here that "U.S. Court to Hear Campaign Finance Case," and here you can access an article entitled "Court Reviews Punishing of Abortion Foes."
Posted at 08:54 by Howard Bashman

In Wednesday's newspapers: Today's edition of The Boston Globe reports here on the biggest news you didn't learn about at this blog yesterday: the en banc U.S. Court of Appeals for the First Circuit "struck down a Massachusetts law yesterday that would have been the first in the nation to require tobacco companies to disclose the ingredients in every brand and product they manufacture, setting the stage for a possible appeal to the US Supreme Court." I didn't report on that ruling yesterday because the First Circuit has yet to post the ruling to its Web site.

In The New York Times, Linda Greenhouse has a news analysis that begins, "Justice Lewis F. Powell Jr. left the Supreme Court 15 years ago, but there was no escaping his memory when the court announced this week that it would revisit both affirmative action and gay rights in the coming months." Today's NYTimes contains an editorial entitled "Campaign Reform on Trial." The paper also publishes various letters to the editor received in response to yesterday's pro-racial preferences in student admissions editorial.

Today's edition of The Washington Post contains an editorial that urges the U.S. Supreme Court to uphold the University of Michigan's policies that employ racial preferences in student admissions. The Post also contains a news article entitled "Texas Faulted in Death Row Report; Capital Defendants Often Hurt by Attorneys' Poor Work, Study Says."

Warren Richey of The Christian Science Monitor today has a report that runs under the headline "Can anti-abortion activists be sued for racketeering? The high court considers whether a law used against mafia groups can be brought into the abortion arena." The case in question is being argued today at the U.S. Supreme Court. Today's edition of The Monitor also contains an editorial entitled "This Camera Should Blink; PBS shouldn't be able to televise a jury deliberation."

The Los Angeles Times today contains an article about a very interesting case in which the Supreme Court of California "will be the first state high court to rule on the legal theory of 'trespass to chattels' as applied to the Internet." David G. Savage reports here on yesterday's U.S. Supreme Court oral argument in a real estate bias case. The LATimes today contains an editorial about the Ninth Circuit's ruling earlier this week on the subject of oil drilling off the coast of California. The editorial says that "The administration says it may appeal to the full nine-member court." So now the Ninth Circuit has only nine judges? The LATimes today also contains an article entitled "Mississippi Curbs Big Jury Awards; Caps on liability verdicts are seen as pro-business. Critics say companies will be less accountable."

Lastly, USA Today reports here that "Court reviews campaign-finance law that could aid Bush; Under donor provision, Democrats may face disadvantage in 2004." Today's edition also contains an op-ed entitled "Keep cameras out of jury rooms."
Posted at 08:12 by Howard Bashman

A dissenting view about Nike v. Kasky: A writer for The Village Voice argues, in a piece that hits newsstands today, that the case isn't as important as Nike and its backers in the mass media have claimed it is.
Posted at 06:11 by Howard Bashman

Tuesday, December 03, 2002
Now available online at Jason Hoppin of The Recorder has a report on one of the Ninth Circuit's newsworthy decisions today, and his article begins, "Contradicting a recent high-profile punitive damages ruling by a California court, the 9th U.S. Circuit Court of Appeals on Tuesday ruled that juries may not punish companies for conduct that occurs beyond state borders." You can access my coverage of that ruling here. And The Legal Intelligencer reports here on the controversy over Pennsylvania's rhyming Supreme Court Justice, whose poetry you can access in full at this earlier post of mine.
Posted at 22:42 by Howard Bashman

News from here and there: The Associated Press reports here that "Commandments Case Lawyers Seek Fees." Let's here it for the almighty dollar! And you can now access some coverage, from home and abroad, of today's Ninth Circuit decision involving Georgios Kyriacos Panayiotou, who is better known as the musician George Michael.
Posted at 22:29 by Howard Bashman

Couldn't have said it better myself: Reader Andy Lowry emails to share his views on Stuart Banner's recent post at The Volokh Conspiracy:
In response to Stuart Banner's 12/3 comment on con law:

"One's constitutional thought has a way of closely tracking one's preferences as to outcome. That's why I've never been very interested in teaching or writing about constitutional law, and why I've always had a hard time understanding how so many smart people could take the field so seriously."

What does "preferences as to outcome" mean? Consider a judge who believes that, despite his own Christian faith, the Lemon test accurately reflects the intent behind the Establishment Clause. Said judge then rules that a state chief justice's proselytizing display of the Ten Commandments in his courthouse's lobby fails the Lemon test.

That judge's decision will reflect his "preference as to outcome," i.e., that a certain construction of the Establishment Clause is correct and should be applied. But that's a world away from the simplistic idea that a Christian judge will construe the Constitution as allowing pro-Christian endorsements (while striking down a Buddha statue erected in a California courthouse).

Texas v. Johnson, the flag-burning case, doubtless expressed "preferences as to outcome," i.e., that burning our flag is protected speech ... but not, presumably, because Justice Brennan approved of flag-burning. (See Justice Kennedy's concurrence.)

So I don't follow Banner's point, since it's either trivially true (judges follow their "preferences" as arrived at through their interpretation of the laws ... just like they do in any other area of law) or else demonstrably false (plenty of judges have upheld conduct on constitutional grounds although they deeply disapproved of the conduct itself, and vice-versa---read through any con law textbook for examples).
Very well said.
Posted at 22:05 by Howard Bashman

U.S. Supreme Court transcripts for November 2002 oral arguments are now available online: You can access them here.
Posted at 21:54 by Howard Bashman

A summary of today's lone U.S. Supreme Court ruling: Today's decision in Sprietsma v. Mercury Marine, No. 01-706 (U.S. Dec. 3, 2002), arises at the intersection of two powerful, competing principles: people love to go boating for recreation, but people don't enjoy being injured, maimed, or killed by unguarded boat propellers.

Today the Court ruled 9-0 that the Federal Boat Safety Act of 1971 does not preempt state law tort claims that a boat's motor was unreasonably dangerous and thereby caused the death of petitioner's wife. As the opinion sadly explains, "Apparently when the boat turned, [petitioner's wife] fell overboard and was struck by the propeller, suffering fatal injuries." Before today's ruling, a division of authority existed between the vast majority of courts, which held such claims to be preempted by federal law, and the Supreme Court of Texas, which in 1994 ruled that federal law does not preempt these type of state law claims. The U.S. Supreme Court today agreed with the highest court of Texas and ruled that federal law neither expressly nor impliedly preempted the petitioner's state law tort claims.

Today's ruling was a giant victory for Leslie A. Brueckner, Staff Attorney with the Trial Lawyers for Public Justice, who argued the appeal for the petitioner. The case now probably looks pretty straightforward given that she won 9-0. To do so, however, she had to oppose U.S. Supreme Court powerhouse Mayer, Brown, Rowe & Maw, which had veteran U.S. Supreme Court advocate Stephen M. Shapiro arguing the case. (You can access the oral argument transcript here.) Newly confirmed Tenth Circuit appointee Michael W. McConnell also appeared on the brief for respondent in the losing effort.

Justice John Paul Stevens drew the short straw and received the assignment to write the opinion, demonstrating Chief Justice William H. Rehnquists's familiarity with the phrase "Idle hands are the devil's tools." The opinion is a very workmanlike effort, and it managed to obtain all nine votes because its discussion of legislative history concludes that reliance on such a controversial tool of interpretation, in this instance at least, was unwarranted. Only one passage from the opinion jumped out at me: "[T]he article 'a' * * * implies a discreteness--which is embodied in statutes and regulations--that is not present in the common law." Ah, if only Justice Stevens had spelled the word as "discreetness," then I could have had some fun with that sentence.

You can learn a bit more about the case here, courtesy of National Public Radio. While it is probably now ice fishing season in Illinois, which is where petitioner filed his claim against the manufacturer of his boat's engine, we can all now rest assured that come warmer weather, in the unfortunate event that a loved one is mangled or killed by a boat's engine, state law tort claims will be available against any potentially negligent tortfeasors that have deep pockets.
Posted at 21:27 by Howard Bashman

Meet Circuit Judge Unfriendly: For my upcoming column about whether the process for confirming federal intermediate appellate judges has become too politicized, I figured it would be helpful to invent a caricature of a federal appellate court nominee who was so very, very conservative that he would be sure to be opposed by every possible liberal group. In choosing a name for this hypothetical nominee, I wasn't looking just to invent a pun that played on the name of one of the greatest federal appellate judges of all time. As it turns out, there are fewer Article III federal judges whose last names start with the letter U than that start with any other letter, even Z. (There are no federal judges whose last name starts with the letter X, so I ask the White House and U.S. Senators throughout the land to work to remedy that oversight.) But what the letter U lacks in sheer numbers it makes up for in coolness of names, for among the federal judges whose last name starts with that letter is Senior District Judge G. Wix Unthank of the U.S. District Court for the Eastern District of Kentucky.
Posted at 17:20 by Howard Bashman

"High Court Debates Foster Kids' Benefits": The Associated Press has this report on the second case in which the U.S. Supreme Court heard oral argument today.
Posted at 17:07 by Howard Bashman

The subterfuge of constitutional law: Over at "The Volokh Conspiracy," Stuart Banner (who is an actual, non-pseudonymous person, I believe) writes in a post about affirmative action:
One's constitutional thought has a way of closely tracking one's preferences as to outcome. That's why I've never been very interested in teaching or writing about constitutional law, and why I've always had a hard time understanding how so many smart people could take the field so seriously.
I voiced a similar concern in my essay that Slate published a few months ago. Which simply raises the question whether the law has some objective meaning that judges should abide by, or whether the act of judging is largely subjective, so that judges are free to change the law as necessary to ensure that it reflects their own personal preferences or the personal preferences of the public generally.

My exposure to the task of judging has led me to believe that nearly all cases have one correct answer that can be found with sufficient thought and hard work, and that even in cases where existing law did not dictate or suggest the proper ruling, a judge's own personal preference as to outcome should rarely if ever prove dispositive given the many other guideposts for determining what result is likely the most just.

Stuart's post appeared at a timely moment for me, as I'm working to finish my monthly appellate column for December 2002, to be published in The Legal Intelligencer on Monday, December 9, 2002. This month's column will be entitled "Activist U.S. Court of Appeals Judges: Myth or Reality?" and will focus on whether the process for confirming federal intermediate appellate judges has become too politicized. If you'd like to receive my monthly column via email in PDF format on the date of its publication (the second Monday of each month), there's a free and easy sign-up form available here.
Posted at 16:50 by Howard Bashman

"Daschle Aide Becomes FCC Official": How is this news relevant to an appellate blog? Read The AP article and all will be revealed.
Posted at 15:40 by Howard Bashman

Roger Clegg writes about the grants of review in the Univ. of Michigan affirmative action cases: You can access his thoughts here, via National Review Online.
Posted at 15:31 by Howard Bashman

"Court Hears Housing Discrimination Case": The Associated Press has just posted online an article that begins, "The Supreme Court heard Tuesday from a mixed-race couple stymied in efforts to buy a new home by a real estate agent who they said called them a 'salt-and-pepper team.' The question for the justices: Can the couple sue the agent's boss?"

Beginning tomorrow, the U.S. Supreme Court embarks on several days of very interesting oral arguments. Two very interesting cases will be argued tomorrow (details here and here), one very interesting case on Monday (details here), and two more very interesting cases next Wednesday (details here and here). You can access the Court's hearing list for the current two-week session at this link.
Posted at 15:21 by Howard Bashman

Another big day for the Ninth Circuit: Today the U.S. Court of Appeals for the Ninth Circuit issued three noteworthy decisions.

First up, a divided three-judge panel reinstated a police officer's claim of slander against musician George Michael (whose real name just happens to be Georgios Kyriacos Panayiotou, the opinion explains). The police officer who brought suit was one of two officers who arrested Michael as the musician left a men's restroom in Will Rogers Park in Beverly Hills, California. The restroom had been under surveillance due to complaints that lewd acts had been taking place inside. Circuit Judge A. Wallace Tashima wrote the majority opinion, in which Circuit Judge Stephen S. Trott joined. Circuit Judge Stephen Reinhardt dissented and would have affirmed the dismissal of the police officer's slander claim. You can access the opinions at this link.

Second, a different divided three-judge panel handed Ford Motor Company a huge victory by setting aside a punitive damages award slightly in excess of $69 million in a case involving a three-year-old boy killed due to an alleged defect in a Ford pick-up truck. The majority held that the punitive damages award unconstitutionally allowed a Nevada-based federal court jury to punish Ford for out-of-state conduct in violation of BMW v. Gore. The majority opinion returns the case to the trial court for a new trial limited to punitive damages. Circuit Judge Andrew J. Kleinfeld wrote the majority opinion, in which visiting Senior Seventh Circuit Judge Harlington Wood joined. Circuit Judge Susan P. Graber dissented. She would have simply reduced the punitive damages award to "the constitutional maximum" of $23,054,350 and left it at that. You can access the opinions at this link.

Finally, a unanimous three-judge panel ruled, in a decision you can access here, that Microsoft Corporation should be given another chance to claim over $30 million in disallowed federal tax "export property" deductions for certain commissions it paid to Microsoft Foreign Sales Corporation.
Posted at 13:40 by Howard Bashman

It's poetry in motion: After trying my hand at some doggerel verse the other day and, not surprisingly, failing to receive a horde of emails (or even just one) urging me to compose all blog posts in rhyme, I'm pleased to turn the focus back to the paid professionals. The poetic dissenting opinion that Pennsylvania Supreme Court Justice J. Michael Eakin issued last week is now available online here. It states (with the non-rhyming footnotes omitted):
A groom must expect matrimonial pandemonium
when his spouse finds he's given her a cubic zirconium
instead of a diamond in her engagement band,
the one he said was worth twenty-one grand.

Our deceiver would claim that when his bride relied
on his claim of value, she was not justified
for she should have appraised it; and surely she could have,
but the question is whether a bride-to-be would have.

The realities of the parties control the equation,
and here they're not comparable in sophistication;
the reasonableness of her reliance we just cannot gauge
with a yardstick of equal experience and age.

This must be remembered when applying the test
by which the "reasonable fiancee" is assessed.
She was 19, he was nearly 30 years older;
was it unreasonable for her to believe what he told her?

Given their history and Pygmalion relation,
I find her reliance was with justification.
Given his accomplishment and given her youth,
was it unjustifiable for her to think he told the truth?

Or for every prenuptial, is it now a must
that you treat your betrothed with presumptive mistrust?
Do we mean reliance on your beloved's representation
is not justifiable, absent third party verification?

Love, not suspicion, is the underlying foundation
of parties entering the marital relation;
mistrust is not required, and should not be made a priority.
Accordingly, I must depart from the reasoning of the majority.
In response, Justice Eakin's fine poesy spawned two responses from the majority (neither in verse, I might add). Chief Justice Stephen A. Zappala wrote a concurring opinion that stated in pertinent part:
I write separately to address my grave concern that the filing of an opinion that expresses itself in rhyme reflects poorly on the Supreme Court of Pennsylvania. While one may disagree intellectually with another's judicial philosophy, and the exchange of differing views is at the very core of a jurist's function, it is the substance of our views that should be the focus of discussion. The gravity of differing judicial views is diminished when the focus is taken away from their substance because of the form in which they are presented. I believe the integrity of this institution depends in great part upon the understanding that we engage in careful, deliberate and serious analysis of the legal issues that we undertake to examine. The integrity of the Supreme Court of Pennsylvania should never be placed in jeopardy by actions that would alter the perception of those whose lives and interests are affected by the decisions of the Court.

It is of little importance whether the issue before the Court involves the death penalty on an individual, the economic interests of individuals or businesses, or the effect of divorce actions in Pennsylvania. Each issue addressed by this Court commands our thorough, weighty consideration. No matter addressed by this Court is frivolous.

The dignity of the Supreme Court of Pennsylvania, and the deserved respect that has been hard-earned, should not be diminished. I feel strongly that the expression of opinions by the highest court in the Commonwealth of Pennsylvania should reflect the gravity of our constitutional responsibility to our citizens. Our oath of office demands nothing less.
Justice Ralph Cappy also wrote a separate opinion in which he explained, in pertinent part:
I write in this case not because the legal issues presented by the parties require further elucidation, to the contrary my learned colleagues have presented ample discourse on those topics. I write because I too am genuinely concerned with the point raised by the learned Chief Justice in his concurring opinion.

It is axiomatic and I firmly believe that every jurist has the right to express him or herself in a manner that the jurist deems appropriate. My concern, however, and the point on which I concur completely with the Chief Justice, lies with the perception that litigants and the public at large might form when an opinion of this Court is reduced to rhyme. I, too, feel strongly that no case with which this court deals is any more or less important than any other; I will endeavor to prevent a contrary impression whenever possible.

Accordingly, although respectful of the wishes of my esteemed colleague in dissent, I am constrained to join the concurrence offered by the Chief Justice.
(This post's title courtesy of Thomas Dolby's "She blinded me with science.")
Posted at 12:19 by Howard Bashman

And you thought hacking a University's Web site was bad: The Associated Press reports here that "Five University of Pennsylvania students were charged with beating, kicking and pouring motor oil on a Princeton student visiting for a debate tournament."
Posted at 12:13 by Howard Bashman

Today's lesson from the U.S. Supreme Court -- Don't fall off a speedboat and land in its outboard propeller: But if you do, your surviving spouse can sue in state court asserting common law tort claims, a unanimous U.S. Supreme Court ruled today in an opinion you can access here. The Associated Press offers this report on the ruling. And I'll have more to say about today's lone U.S. Supreme Court decision tonight, so stay tuned.
Posted at 11:37 by Howard Bashman

The view from Michigan: The Michigan Daily, the student newspaper of the University of Michigan, reports here that "High court takes on admissions lawsuits." Here you can access an article entitled "Bollinger, Coleman address importance of Court's decision." Looking to the future, the newspaper presents an article bearing the headline "Justices may be divided on issue; O'Connor, Kennedy seen as swing votes in debate." Here's an article entitled "Court will examine precedent, new issues in coming decision." Another article is entitled "Past cases clarify controversy surrounding admissions suits." This article reports the surprising news that the University's administration is pleased that the Court took the case; this news is surprising because the University filed briefs opposing U.S. Supreme Court review. The newspaper also contains an editorial about the case, but the editorial does not suggest what ruling the newspaper's editorial board prefers.

Moving off campus, The Detroit Free Press contains an article entitled "U-M lawsuits may set national policy; Supreme Court ruling likely to come in '03 on race factor." The Freep offers a short report about "Prior cases involving affirmative action." If you're looking for a timeline of the legal battle, The Freep obliges here. Today's Freep editorial about the case doesn't mind taking sides; it supports the University's affirmative action program.

Today's edition of The Detroit News also offers extensive coverage. Its lead story is entitled "U-M cases to shape affirmative action; U.S. Supreme Court to decide case by June." Here you can access an article that runs under the headline "Experts: O'Connor's vote key; They say centrist justice holds fate of race-based admissions policies." This article reports that "Emotions swirl at U-M over decision; Supporters fear court may set affirmative action back." In a news analysis piece, the paper reports that "Decision could impact workplace, K-12 schools." On its editorial page, The Detroit News runs an editorial that concludes: "Considering the disparity that still exists between the public schools serving minority children and those serving white children, as well as the lingering economic gap between black families and white families, an admissions policy that takes those factors into account is the best way to advance the causes of diversity and equal opportunity. But however the court rules, it should have the courage this time to speak with clarity." Finally the newspaper includes dueling op-eds, one in favor of the University's affirmative action programs, and the other opposed.
Posted at 09:41 by Howard Bashman

Elsewhere in Tuesday's newspapers: David G. Savage, who covers the U.S. Supreme Court for The Los Angeles Times, has an article today entitled "Court Test for College Race Policy; Justices to rule on the constitutionality of affirmative action in the admissions process." Here, Savage has an article entitled "Court to Weigh Texas' Ban on Gay Sodomy; Justices to decide whether states may use laws to punish only same-sex couples." And here he reports that "Justices to Rule on Past Sex Crimes, Tribal Raids." Closer to its home, The LATimes reports here that "A federal appeals court on Monday effectively blocked new oil drilling off the California coast in the near future by upholding a lower court decision that state officials must first scrutinize drilling plans for environmental hazards." And here, the newspaper offers an article entitled "Woman Sought UC Berkeley's Help Before Accusing Dean."

In today's edition of The Boston Globe, Lyle Denniston has an article here entitled "Supreme Court to weigh race in admissions," and here he has an article entitled "Justices take gay-rights case; Supreme Court appeal challenges Texas sodomy law." Today's edition of The Globe contains an article entitled "A Thurmond century: lion to lamb." You can access here an article entitled "F. Lee Bailey asks to keep his license; Disbarment in Fla. last year is at issue." And today's edition of The Globe contains an article that begins, "Reviving a debate squelched by Senate President Thomas F. Birmingham last summer, Acting Governor Jane Swift will today seek an opinion from the Supreme Judicial Court on whether she is obligated to call legislators back for a special session to debate a ballot question banning gay marriage in Massachusetts."

In USA Today, Joan Biskupic reports here that "Justices take up college race rules; Sodomy law also to be reviewed" and here that "Supreme Court to review Texas anti-sodomy law."
Posted at 06:54 by Howard Bashman

Jacob T. Levy comments on Emily Bazelon and Andy Richter: University of Chicago Assistant Professor of Political Science Jacob T. Levy has written up some thoughts about Emily Bazelon's jurisprudence essay that appeared online at Slate yesterday afternoon. If his comments on Bazelon's essay are as insightful as his remarks about this past Sunday night's excellent episode of Andy Richter Controls the Universe, then they are certainly worth a read.
Posted at 01:14 by Howard Bashman

In Tuesday's newspapers: First up, news and commentary pertaining to the U.S. Supreme Court. In The New York Times, Linda Greehouse has an article entitled "Supreme Court to Revisit Colleges' Diversity Efforts." Separately, in an editorial, The NYTimes calls on the Supreme Court to uphold the use of affirmative action in university admissions. In The Washington Post, Charles Lane reports "Colleges' Selection Policies Face Test; Supreme Court Will Decide Whether Race Can Be Considered." The Post also contains a second, related article entitled "Universities Alter Recruiting; Race-Neutral Admission Tactics Found to Boost Diversity." And, online at OpinionJournal is an essay entitled "Bakke to the Future; The Supreme Court may finally strike down racial preferences."

The NYTimes also contains a second article by Linda Greenhouse wrapping-up yesterday's other developments at the Court, and that article is entitled "Justices to Reconsider Ruling Against Sex Between Gays." Charles Lane also reports on the homosexual sodomy case here. In an editorial, The Washington Post calls on the Court to strike down on equal protection grounds the Texas law prohibiting homosexual sodomy.

Warren Richey of The Christian Science Monitor reports here on a case to be argued Wednesday before the U.S. Supreme Court that is testing the limits of police tactics in interrogations.

Both The NYTimes (here) and The Post (here) contain articles on yesterday's D.C. Circuit oral argument over whether war on terror detainees held at the Guantanamo Naval Base in Cuba have the right to challenge their detentions in court.

In other news, The NYTimes reports here that "Some of the nation's most accomplished lawyers will face off this week in a courtroom in Washington in the first showdown over the constitutionality of the new campaign finance law." Here you can access a NYTimes article entitled "Nevada States Case Against Waste Dump in Mountain" about a pending D.C. Circuit appeal. This article from Reuters reports that West Virginia has joined Massachusetts in appealing from a trial judge's approval of the Microsoft antitrust settlement. The NYTimes reports here that "Death row inmates in Texas are often assigned incompetent or unqualified state appellate lawyers who do not raise legitimate constitutional arguments and who fail to unearth facts that could prove the innocence of their clients, according to a new study by an advocacy group for capital defendants." Finally for now, The Washington Post contains an article entitled "Court Blocks Offshore Oil Leases in Calif.; U.S. Appeals Judges Uphold State's Right to Prevent Drilling in Federal Waters."
Posted at 00:24 by Howard Bashman

Monday, December 02, 2002
"Lamest Term in History" is no more! With apologies to my good pal Dahlia Lithwick, what she last week was calling the "Lamest Term in History" is no more, as I had predicted on the day her essay making that assertion appeared. And while I'm taking issue with stuff that has appeared on Slate, the Chevy Chase roast that aired last night on Comedy Central was actually quite funny in a very sick and demented sort of way.
Posted at 23:29 by Howard Bashman

Can the owner of a model code claim copyright violation due to unauthorized private use once the model code has been enacted into law? One of the two cases on which the U.S. Supreme Court today requested the views of the Solicitor General of the United States is a very interesting case out of the Fifth Circuit in which that court, sitting en banc, split 9-6 over the extent to which a private organization may assert copyright protection for its model codes, after the models have been adopted by a legislative body and become "the law." You can access the Fifth Circuit's en banc ruling at this link. You can access my original coverage of that ruling here.
Posted at 22:56 by Howard Bashman

Now available online at Tony Mauro has an article entitled "Justices Dive Into the Fray; U.S. Supreme Court to decide affirmative action and gay rights cases." Jason Hoppin of The Recorder reports here on an oral argument that the U.S. Court of Appeals for the Ninth Circuit heard today, and the article is entitled "French Order Is Greek to 9th Circuit." Jonathan Groner reports here on "The Secret Life of David Sentelle," and this article is well worth the free registration process necessary to access it. You can access here an article entitled "Sentencing of Child Pornographers Clarified" that reports on a recent Second Circuit ruling that I mentioned here more than one week ago. Here, The Recorder offers an article entitled "Boalt Scrambles to Fill Dean's Slot, Answer Allegations; Student accusing former dean also says school has no sexual harassment policy." Lastly, this article is entitled "The Memo Heard Round the World," and you should require only one Chance (and one Clifford) to guess the memo to which the article refers.
Posted at 22:39 by Howard Bashman

Eighth Circuit reverses dismissal of case brought by white female alleging racially hostile work environment: You can access the ruling of the U.S. Court of Appeals for the Eighth Circuit, issued today, at this link.
Posted at 17:33 by Howard Bashman

Pro-choice lawyers discover state courts: Slate has just posted online this jurisprudence essay by Emily Bazelon.
Posted at 16:48 by Howard Bashman

"U.S. Seeks to Curb Indian Lawsuits": The Associated Press offers this summary of today's two U.S. Supreme Court oral arguments. The article also summarizes, at its end, the Native American rights case in which the Supreme Court granted cert. today.
Posted at 16:43 by Howard Bashman

Several significant amendments to the Federal Rules of Appellate Procedure went into effect yesterday: The April 2002 installment of my monthly appellate column published in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, summarizes the most significant of these new amendments. My column saves for last a discussion of the most significant amendment -- one that may wreak havoc for quite some time to come -- so be sure to read through to the end in order not to miss that one.

The next installment of my column will be published one week from today, and it will examine whether the process of selecting and confirming judges to serve on federal appellate courts has become too politicized, and, if so, what can be done to make the process work better. If you'd like to receive my monthly column via email in PDF format on the date of its publication (the second Monday of each month), there's a free and easy sign-up form available here.
Posted at 16:33 by Howard Bashman

Univ. of Michigan issues three press releases in response to today's grant of cert. to review that school's racial preferences in admissions policies: You can access all three press releases at this link.
Posted at 16:17 by Howard Bashman

"Woman Rebuts Dean's Claim; She says she was sexually assaulted by the UC Berkeley law school chief, who called the encounter consensual and resigned": Today's edition of The Los Angeles Times contains this report. A similar article appears in today's edition of The San Francisco Chronicle. These two news reports could answer some of the questions raised in this article, from today's edition of The Daily Californian.
Posted at 15:03 by Howard Bashman

"Terror War Detainees Appeal for Rights": The Associated Press is now running a report on today's oral argument in the U.S. Court of Appeals for the D.C. Circuit over whether detainees in the war on terrorism being held at the U.S. Naval Station at Guantanamo Bay, Cuba have any right to have their claims heard in a United States court.
Posted at 14:25 by Howard Bashman

Charles Lane reports on today's affirmative action cert. grant, and you can chat online about it with Law Professor Eugene Volokh at 2 p.m. eastern time: You can access Washington Post reporter Charles Lane's article here, and you can learn about the Volokh chat at this link. I'm personally looking forward to Eugene's prediction of how Justice Sandra Day O'Connor will vote, given that he served as one of her law clerks not too long ago.

Update: I'll take credit for being the author of the third question posed to Professor Volokh during the online chat (the one from Philadelphia, PA), and even though the question was a bit on the lengthy side, I thank The Washington Post for running it unedited. You can access the question and Prof. Volokh's very insightful answer here.
Posted at 13:31 by Howard Bashman

"Chief Justice Rehnquist Misses Session": The Associated Press is reporting:
Chief Justice William H. Rehnquist, recuperating from leg surgery, missed Monday's Supreme Court hearings in two cases involving Arizona Indians who argued that the government shirked its obligations to the tribes.

Justice John Paul Stevens announced at the beginning of the session that Rehnquist would still rule on the cases by reading the briefs and transcripts.
It thus appears that Justice Stevens, as the most senior Associate Justice, presided over today's oral arguments. You can access The AP's article at this link.
Posted at 13:16 by Howard Bashman

Tony Mauro's "Courtside" column this week focuses on the Washington State IOLTA case and the memorial service honoring Justice White: You can access it here, and don't miss the interesting discussion of what, precisely, the acronym "IOLTA" signifies.
Posted at 12:27 by Howard Bashman

And now, some cases in which the U.S. Supreme Court denied review today: The Associated Press reports here that the U.S. Supreme Court today refused to review "an effort to block specialty car license plates in Louisiana with the slogan 'Choose Life.'" Here The AP reports that "High Court Refuses Teen Death Row Case." And here The AP reports that "Supreme Court Won't Stop Suit Vs. Freeh."
Posted at 12:18 by Howard Bashman

New York Times chart published yesterday erroneously says the Seventh Circuit is only authorized to have six active judges: As I mentioned yesterday in a post you can access here, The New York Times yesterday published a chart -- accompanying an article about forthcoming federal appellate judicial confirmations -- that was riddled with errors. Thanks to "Eddie Felson" of the Greedy Clerks board for bringing to my attention that the chart is indeed available online, and you can access it at this link. If you see additional errors in the chart beyond what I have already noted here, feel free to let me know via email.
Posted at 11:19 by Howard Bashman

The official version of the order that Justice Stevens entered Friday allowing display of a menorah in a Cincinnati public square is now online: You can access it here.
Posted at 10:48 by Howard Bashman

Gina Holland of The AP is all over this morning's newsworthy cert. grants: Here she reports "High Court Takes Affirmative Action Cases"; here, "Supreme Court Agrees to Hear Sodomy Case"; and here, "Court to Mull Limits on Inmate Visits." Plus, in an article without a byline, The AP reports that "Court Takes Child Molestation Case."
Posted at 10:33 by Howard Bashman

The Supreme Court's official order list from this morning is now available online: You can access it here. The U.S. Supreme Court granted cert. in a total of six cases, although two of those six were the University of Michigan affirmative action challenges (yes, even the petition for cert. before judgment was granted in part, so the en banc Sixth Circuit can stop working on the Gratz case). The Court also called for the views of the Solicitor General of the United States in two additional cases.

I have already noted below the subject matter of three of the six cases in which review has been granted today. In a fourth case, the Court has listed the specific questions on which it granted cert:
The petition for a writ of certiorari is granted limited to the following Questions: 1. Whether prisoners have a right to non-contact visitation protected by the First and Fourteenth Amendments. 2. Whether the restrictions on non-contact prison visitation imposed by Michigan Department of Corrections are reasonably related to legitimate penological interests. 3. Whether the restrictions on non-contact prison visitation imposed by the Michigan Department of Corrections constitute cruel and unusual punishment in violation of the Eighth Amendment.
Stay tuned for additional coverage throughout the day.
Posted at 10:20 by Howard Bashman

MORE BREAKING NEWS: The U.S. Supreme Court today has also agreed to decide the constitutionality of state laws that make homosexual sodomy a crime. The Associated Press has this report.
Posted at 10:16 by Howard Bashman

BREAKING NEWS: As I had predicted, the U.S. Supreme Court this morning has granted cert. to decide the legality of racial preferences in university admissions. The Associated Press has this news alert. And here's a slightly longer article that The AP has just posted.
Posted at 10:05 by Howard Bashman

"Guantanamo Prisoners Appeal for Rights": The Associated Press has this report about an appeal in which the U.S. Court of Appeals for the D.C. Circuit will hear oral argument today. Remember that less than one month ago, a British appellate court expressed its belief that some federal court within the United States would rule that it had jurisdiction to consider the challenges to continued detention being brought by foreign detainees in the war on terror who are being held at the U.S. Naval Station at Guantanamo Bay, Cuba. Time certainly will tell whether that British court was correct.
Posted at 09:46 by Howard Bashman

Elsewhere in Monday's newspapers: USA Today's U.S. Supreme Court correspondent, Joan Biskupic, has an article today entitled "Case could reshape college admissions."

David G. Savage of The Los Angeles Times, who likewise covers the U.S. Supreme Court, reports here that "Reach of Fair Housing Act Crux of High Court Case; At issue is whether supervisors can be sued if agent showed bias toward a buyer." Law Professor Jonathan Turley has an op-ed today entitled "Pro-Choice at Expense of Free Speech; NOW case against abortion protester may backfire." Finally, you can access here a piece entitled "The interrogation itself can be suspect; How timely that a worthy new TV movie shines a sweaty hot light on interrogations just as the U.S. Supreme Court is poised to reconsider its historic Miranda ruling."
Posted at 07:14 by Howard Bashman

In Monday's newspapers: In Monday's edition of The Washington Post, U.S. Supreme Court correspondent Charles Lane previews the two Native American rights cases being argued at the Court today. Here you can access a front page article that begins:
The new campaign finance law, which took effect Nov. 6, faces its first major legal test Wednesday in oral arguments before a special panel of three federal judges. The presentations are certain to be lofty, touching on the First Amendment and other parts of the Constitution as the two sides debate the future shape of the American political system.
Monday's edition of The Post also contains an article entitled "At Justice, Freedom Not to Release Information." Finally for now, Monday's edition of The New York Times contains an op-ed by Martha Nussbaum, professor of philosophy at the University of Chicago, in tribute to the recently departed political philosopher John Rawls.
Posted at 00:06 by Howard Bashman

Sunday, December 01, 2002
"Supreme Court Could End Miranda Warnings": That's the headline The Associated Press gave to an article sent across the newswire tonight summarizing a case in which the U.S. Supreme Court will hear oral argument on Wednesday. The headline would be just as accurate if it said "Supreme Court Could Reverse Roe v. Wade" or "Supreme Court Could Make Death Penalty Mandatory For All Murder Convictions." Which is just my way of trying to explain that the case The AP summarizes in fact does not present an opportunity for the Court to "end Miranda warnings." Rather, the case to be argued on Wednesday is simply a qualified immunity case, as the question presented in petitioners' opening brief on the merits makes clear:
Whether petitioner, a police officer, is entitled to qualified immunity in a lawsuit under 42 U.S.C. sec. 1983 alleging that his interrogation of respondent was unduly coercive, in violation of the Fifth and Fourteenth Amendments, where no statement made by respondent has ever been used against him in a criminal case and the officer's undisputed purpose was to obtain evidence from an individual, shot by police, before that individual's anticipated imminent death.
You can learn more about the case at this link. A second case being argued on Wednesday involves anti-abortion protesters and their liability for damages under the Racketeer Influenced and Corrupt Organizations Act (RICO). I can't wait to see the type of headlines assigned to previews of that oral argument.
Posted at 23:53 by Howard Bashman

Chart in today's New York Times accompanying article about forthcoming federal appellate judicial confirmations is riddled with errors: A chart that appears on page 3 of today's Week in Review section of The New York Times, accompanying an article on the upcoming Republican push to confirm more federal appellate judges, is riddled with errors. The chart is available in the print edition of the newspaper but does not appear online.

The chart contains a graphic for each federal appellate court showing the total number of active judgeships, the current number of active judges on each circuit appointed by Democratic and Republican Presidents, and the number of vacancies. In four instances, however, the chart inaccurately identifies the number of active judgeships in a given circuit, which then renders the much or all of the rest of the data for that circuit incorrect. The most glaring error is that the chart shows the U.S. Court of Appeals for the Seventh Circuit as having only six active judgeships (which the chart then shows as evenly split between Democratic and Republican appointees). In fact, the Seventh Circuit has a total of eleven active judgeships, and eight of those eleven were appointed by Republican Presidents. In another glaring error, the chart shows the Sixth Circuit as having twenty-two authorized active judgeships, of which six are vacant. The Sixth Circuit does indeed have six vacancies, but it has only sixteen active judgeships. In two less severe errors, the chart shows the Fifth Circuit as having eighteen authorized active judgeships, when in fact it has only seventeen, and the chart shows the Eleventh Circuit as having thirteen authorized active judgeships, when in fact it has only twelve. The chart may contain other inaccuracies even in those circuits where it correctly lists the total number of authorized active judgeships, but time does not allow me to determine that right now.
Posted at 11:14 by Howard Bashman

Larry Lessig says Judge Posner didn't say that: This is too funny. Larry Lessig contends that a reporter must be wrong because Circuit Judge Richard A. Posner never would have said that.
Posted at 10:10 by Howard Bashman

"Scalia defends 'originalism' at forum": The Associated Press reports on a speech that Justice Antonin Scalia delivered early last week in Tallahassee, Florida. According to the article:
For the last 40 years, the nation's high court has agreed the idea that the Constitution is a living document that evolves with time, Scalia said.

And much of the public now agrees, he said, describing himself and Justice Clarence Thomas as the only two "originalists" on the nine-member court.

For instance, Scalia said, the current legal concept is that the Eighth Amendment ban on cruel or unusual punishment must change to match evolving standards of decency in the community.

"Every day in every way we get better and better," Scalia said, mocking that belief. "Society only matures; it never rots."

But he said that's a naively optimistic belief the Founding Fathers would not have agreed with.

Scalia said people who believe the Constitution is a living document argue such a theory of interpretation increases its flexibility. But, he said, it actually makes the document more rigid and removes issues like the right to abortion off the democratic stage.

He also cautioned that a "living Constitution" has nothing to do with a conservative or liberal political view and can produce results that are sought by each camp.

The "seductive appeal of the living Constitution" is that it lead to rulings that are popular, Scalia said. But, ultimately, "it is simply an illegitimate way for a court to act."

When the public comes to the conclusion that the court is "making it up" it will stop looking for good judges and instead look for policy-makers to sit on the bench, Scalia warned.

"I'm really not too optimistic about the future of the Supreme Court," he said.
You can access the complete article at this link. (Via NINOMANIA.)
Posted at 10:06 by Howard Bashman

In Sunday's Los Angeles Times: Today's edition of The Los Angeles Times reports here that "On Monday, a federal appeals court in Washington, D.C., will take up one of the most vexing legal questions to arise in the aftermath of the Sept. 11 terrorist attacks: Is it possible for the U.S. government to keep 600 suspected terrorists held at Guantanamo Bay, Cuba, in custody forever?" (According to the D.C. Circuit's Web site, the three-judge panel hearing that oral argument consists of Circuit Judges A. Raymond Randolph and Merrick B. Garland and Senior Circuit Judge Stephen F. Williams.) In an op-ed, author David Wise argues that the recent ruling of the Foreign Intelligence Surveillance Court of Review "raised a number of disturbing questions." Finally, The LATimes reports here that "Fish Lends Its Name, Name Gives Offense; The 'jewfish' has been renamed, and now a federal panel has been asked to do the same for a Florida creek that borrowed the epithet."
Posted at 09:24 by Howard Bashman

Sunday's New York Times reports on the upcoming Republican push to confirm more federal appellate judges: Reporter Neil A. Lewis has this very interesting article in The Week in Review section of Sunday's New York Times. The article reports that "blue slips" used by a Senator to block an objectionable nominee from the Senator's home state may soon be a thing of the past, that Peter D. Keisler may be nominated to fill an open slot on the D.C. Circuit, and that Brett Kavanaugh (with whom I once had the pleasure of working on a cert. petition) could be nominated to fill a Fourth Circuit vacancy.
Posted at 01:03 by Howard Bashman

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