How Appealing

Friday, January 31, 2003
Now available online at law.com: As another month at "How Appealing" prepares to head into the history books, you can access here Jonathan Groner's article entitled "Tumultuous Confirmation Hearing for Bush Bench Nominees." And from The Recorder, this article entitled "Juror Dismissal Raises Issue of Jeopardy" previews a case in which the California Supreme Court is scheduled to hear oral argument next week.
Posted at 23:43 by Howard Bashman



The Volokh Conspiracy's contributors become "bloggers of color": No, they aren't trying to gain admission to a state university in the upper midwest. I mean sheesh, those bloggers are quite well-credentialed already notwithstanding their nearly uniform whiteness and maleness. Instead, they are simply trying to find a way to further distinguish themselves from one another. And no, Eugene points out here, "this is not a Reservoir Dogs sort of thing." Good, because my guess was that it's a Power Rangers sort of thing. In the near future, we'll see what will happen when the site has more participating bloggers than there are colors in the rainbow.
Posted at 23:37 by Howard Bashman



Some good news for you and me: Earlier this week I took a tiny bit of that huge chunk of change that Microsoft paid me last year for my Slate essay and purchased "extra storage" for this blog's Hotmail email account. Thus, those readers who insist on emailing PDF files to me will no longer be having their emails rejected because such attachments would bring my email account over its size limit. But please don't sent email attachments to me unless absolutely necessary. This, by the way, is the good news for you.

The good news for me is that Netflix has just opened a service center that is right near where I live, meaning that now I can put a movie in the mail to return on one day and have it arrive at Netflix the very next day, causing them to send me the next movie on my list. When I first signed up for this wonderful service, I had to return movies across country to San Jose, California. Lately my return center has been in the Bronx, New York, but it often takes a film as long to get there as it took to go cross-country.

Tonight the wife and I watched the first half of "Lagaan," and I recommend the film most highly. The film is Bollywood at its finest, and (if I may say so) the female lead, Gracy Singh, is quite a looker. You can see her in a photo accompanying this New York Times review of the film, and other glowing reviews of the movie can be found here (Entertainment Weekly), here (Ebert), and here (BBC). My Republican friends will especially enjoy the movie, because the story is about an Indian village in the late 1800s that unites to win a sporting match against the British occupying force in order to escape a new tax that will levy the village's residents to the point of slavery. The first line of the Entertainment Weekly review is a winner, "If, like me, your experience of India's Bollywood musicals has been pretty much limited to the opening credits of 'Ghost World,' you should make a point of catching Lagaan, the unlikeliest enthralling movie to be released so far this year." And after we watch the remaining two hours and fifteen minutes of "Lagaan," next up is the Cannes International Film Festival award winning film "The Piano Teacher," which is reviewed here (NYTimes) and here (Salon).
Posted at 23:22 by Howard Bashman



"This is nonsense on stilts." That's how Chief Judge Douglas H. Ginsburg of the U.S. Court of Appeals for the D.C. Circuit characterized a central argument advanced by a so-called pirate broadcaster in Chief Judge Ginsburg's majority opinion for the en banc court issued today. I first mentioned this ruling earlier today in a post you can access here.
Posted at 22:55 by Howard Bashman



Dahlia Lithwick's latest jurisprudence essay is now available online: It's entitled "Bimbo Contest: Barbie issues first public statement in wake of high court defeat," and you can access it here, via Slate. Dahlia's essay establishes that the U.S. Supreme Court's decision whether to grant certiorari in a case doesn't usually depend on the case's humor value. But see Campbell v. Acuff-Rose Music, Inc., No. 92-1292 (U.S. March 7, 1994); Hustler Magazine, Inc. v. Falwell, No. 86-1278 (U.S. Feb. 24, 1988).
Posted at 19:22 by Howard Bashman



What is "picquerism"? Good question! Today the U.S. Court of Appeals for the Second Circuit issued an opinion that begins:
Robie J. Drake appeals from a judgment of the United States District Court for the Western District of New York (Elfvin, J.) denying a writ of habeas corpus pursuant to 28 U.S.C. sec. 2254. In 1982, Drake was convicted by a jury in New York State Supreme Court, Niagara County, on two counts of second degree murder for the shooting of a young couple in a parked car in an isolated area near a junkyard. The defense theory was that Drake often used abandoned cars for target practice, that he shot up the victims' car without realizing it was occupied, and afterward in panic stabbed the young man (who was dying), and drove the car to a nearby dump. To aid the prosecution of a crime that was seemingly without motive, the prosecutor at the last minute called to the witness stand a putative expert who testified about a syndrome of sexual dysfunction that appeared to account for the particular, gruesome circumstances of the crime. Far-fetched as the defense theory was, the prosecution concedes that the expert was recruited late in the trial to plug a perceived hole in its case concerning intent. It is now clear that the expert's qualifications were largely perjured, and that the syndrome, dubbed "picquerism," is referenced nowhere but in a true-crime paperback. The prosecution successfully opposed a continuance sought by Drake’s counsel, who protested that he had been unable to find a psychologist who had even heard of "picquerism."

Drake claims on habeas that (i) his right to due process under the Fourteenth Amendment and his Sixth Amendment right to compulsory process were violated because the surprise testimony, coupled with the denial of a continuance, deprived him of the opportunity to present a meaningful defense; and (ii) his due process rights under the Fourteenth Amendment were violated because the prosecution knew or should have known of the perjury.
Does the prosecution's outrageous conduct allow for reversal of the federal district court's order denying the petitioner's request for habeas corpus relief? The Second Circuit's opinion, accessible here, provides the answer.
Posted at 16:57 by Howard Bashman



"The statute has expired but its legislative history is good law." That's how D.C. Circuit Judge A. Raymond Randolph begins his very interesting dissent today in a case entitled Wisconsin Project on Nuclear Arms Control v. United States Department of Commerce. Judge Randolph's dissent is so interesting, I shall now quote its first three and final two paragraphs (with some citations omitted):
Randolph, Circuit Judge, dissenting: The statute has expired but its legislative history is good law. So say my colleagues, in a most curious opinion.

Exemption 3 of the Freedom of Information Act permits federal agencies to withhold documents "specifically exempted from disclosure by statute." We can all agree that if section 12(c) of the Export Administration Act were a law, it would qualify as an Exemption 3 "statute." But the Export Act has expired. It has no more force than the Independent Counsel statute or the Sedition Act of 1798. It simply "no longer exists. Its life is at an end." Greenwood v. Freight Co., 105 U.S. (15 Otto) 13, 18 (1881).

Mere "formalism," a quibble, replies the majority. The Wisconsin Project's reading of Exemption 3 to require a "statute," the majority explains, "strangles Congress's intent." Maj. op. at 12. In other words, the Export Act may be gone, but congressional intent lives on: Congress at one time wanted the Commerce Department to keep the information secret, and so it shall remain. No matter that the Freedom of Information Act--a real law--expresses Congress's intent to require a statute exempting the documents from disclosure when they are sought or about to be released. (The only documents sought were applications filed during a time when the Export Act was not in effect.)

* * *

The majority must realize the problem, so it asserts that an Executive Order "continued precisely" the Export Act's confidentiality provision. Maj. op. at 13. It never occurred to me, or to the Framers of the Constitution, that the Executive could by the stroke of a pen convert expired legislation into an existing statute. Besides, no Executive Order of any sort can satisfy Exemption 3, even if it tracks the language of expired legislation. An Executive Order is not a statute. See INS v. Chadha, 462 U.S. 919, 945-46 (1983).

Congress amended Exemption 3 in the wake of FAA v. Robertson, 422 U.S. 255 (1975), to restrict the Executive's discretion to withhold information; it required, as a condition for nondisclosure, an explicit nondisclosure statute. There is no such statute here. In the end all the majority can come up with is some free-floating congressional intent about the meaning of a statute that no longer exists. Alice once encountered a comparable phenomenon: "'Well! I've often seen a cat without a grin,' thought Alice; 'but a grin without a cat! It's the most curious thing I ever saw in all my life!'" Lewis Carroll, Alice in Wonderland 69 (1946). I therefore respectfully dissent.
You can access both the majority and dissenting opinions at this link.
Posted at 16:30 by Howard Bashman



Circuit Judge Richard A. Posner debates the question "Does Judge Posner Have the Right Conception of Judging?" In the category of unbelievable but true, today's edition of The Chicago Sun-Times offers this report. Thanks to the blog "Half Baked" for the pointer.
Posted at 15:39 by Howard Bashman



Hooters and Ecstasy don't mix: Today Seventh Circuit Judge Terence T. Evans provides an other example of why he's one of my favorite writers on the federal appellate bench:
EVANS, Circuit Judge. Berend Schaafsma, Jr. won a battle but, more importantly, lost a war when a jury found him guilty of involvement in an MDMA (thankfully shortened from its full name: methylenedioxymethamphetamine) sale which was interrupted by police outside a Hooters restaurant in Orland Park, south of Chicago. The battle he won--an order from the district judge granting his motion to suppress evidence obtained after his arrest--forms the basis of his appeal: he says some of the suppressed evidence slipped into the trial and that entitles him to a do-over.

MDMA is a synthetic, psychoactive drug with both stimulant (amphetamine-like) and hallucinogenic (LSD-like) properties. It goes by various street names--Adam, XTC, hug, beans, the love drug, and most commonly, Ecstasy. It's a dangerous drug--ingesting high doses can cause sharp increases in body temperature leading to muscle breakdown and kidney and cardiovascular system failure. Despite its dangerous propensities, it's a drug in demand. And so, enter Schaafsma and one Richard Marrella on their ill-fated trip to Hooters.
You can access the entire opinion here.
Posted at 15:21 by Howard Bashman



Ahoy, matey: The U.S. Court of Appeals for the D.C. Circuit, sitting en banc, has by a vote of 7-1 today upheld against First Amendment and Equal Protection challenge a federal statute and the Federal Communications Commission's implementing regulations that permanently bar pirate broadcasters from ever obtaining broadcasting licenses. You can access the complete opinion at this link.
Posted at 15:03 by Howard Bashman



RFRA and birds of a feather: The demand for dead eagle parts and feathers exceeds the available supply. That fact of nature, and of Native North American religion, gave rise to a very interesting appeal that the U.S. Court of Appeals for the Ninth Circuit decided today.

A member of a Canadian Indian tribe was convicted in the U.S. District Court for the Western District of Washington of violating the Bald and Golden Eagle Protection Act. The defendant brought dead eagles, eagle parts, and feathers from Canada to the United States, where he traded them for money and goods. The defendant was then charged, and ultimately convicted, of violating the aforementioned federal criminal law.

The defendant, on appeal, raised a quite interesting challenge, based on the Religious Freedom Restoration Act, to his conviction. As Circuit Judge Alex Kozinski's opinion for the unanimous three-judge panel explains (with citations omitted):
[M]embers of federally recognized Indian tribes can apply for permits to possess and transport eagles or eagle parts for religious purposes. Federal wildlife agents who find eagle carcasses send them to a repository in Colorado, which fills applications on a first-come, first-served basis. Because demand significantly exceeds supply, the waiting list is several years long. Antoine is not eligible for a religious use permit at all, however, because his band is not recognized by the United States.
As the opinion goes on to explain, the defendant "argues that his exclusion from the permit scheme violates RFRA and so he cannot be prosecuted for obtaining eagles by other means." In response to that argument, Judge Kozinski's opinion states (with citations again omitted):
RFRA requires least restrictive means to avoid substantial burdens on religion. But, in this case, the burden on religion is inescapable; the only question is whom to burden and how much. Both member and nonmember Indians seek to use eagles for religious purposes. The government must decide whether to distribute eagles narrowly and thus burden nonmembers, or distribute them broadly and exacerbate the extreme delays already faced by members. Religion weighs on both sides of the scale. The precise burdens depend on how many nonmember applicants there would be, but not in any illuminating way: Fewer nonmember applicants means shorter additional delays for each member if the restrictions are removed, but also fewer people burdened if they are left in place.

Our cases enforcing RFRA's least-restrictive-means requirement have involved the pursuit of some secular interest in a manner that burdens religion. Antoine isn't asking the government to pursue its eagle-protection goal without burdening religion at all; he wants it to burden other people's religion more and his religion less. This is not a viable RFRA claim; an alternative can't fairly be called "less restrictive" if it places additional burdens on other believers. A contrary holding would entangle the judiciary in standardless efforts to measure the relative burdens a policy inflicts on other religious adherents. This is not what the statute prescribes. If the freeway must be built, RFRA doesn't say which house of worship should be razed.
You can access the opinion in its entirety at this link.
Posted at 14:46 by Howard Bashman



"Insofar as" versus "inasmuch as": Last night, in a post you can access here, I noted Third Circuit Judge Marjorie O. Rendell's recusal yesterday from a ruling in a case in which the Commonwealth of Pennsylvania was a party. Of course, Judge Rendell's husband, Ed, recently became the Governor of Pennsylvania.

My post from last night also mentioned that it struck me as funny that the recusal notice informed the reader how Judge Rendell would have ruled had she not been recused. The recusal notice stated, in full:
The Honorable Marjorie O. Rendell participated in the oral argument and conference and joined in the decision in this case on June 13, 2002, but became recused from this matter prior to filing of the opinion. This opinion and judgment are being entered insofar as the remaining judges are unanimous in this decision.
This morning I received an email from one of this Web log's many readers which said "What's really funny about the footnote mentioning Judge Rendell's recusal is its misuse of the phrase 'insofar as' as though it means 'inasmuch as.'" Nothing gets past you people, does it?
Posted at 14:26 by Howard Bashman



"Bush nomination of Duncan could end feud over 4th Circuit": Interesting news pertaining to the U.S. Court of Appeals for the Fourth Circuit. Thanks to an anonymity-requesting reader for sending along a link to the report.
Posted at 13:30 by Howard Bashman



"Federal Judges Get Cost-Of-Living Raise": The Associated Press provides this good news.
Posted at 12:49 by Howard Bashman



Confirmation vote on Miguel A. Estrada's nomination to serve on the D.C. Circuit scheduled for Tuesday, February 4, 2003: The U.S. Senate's Web site is now reporting that on Tuesday, February 4, 2003, "At 10:00 am the Senate will consider the nomination of Miguel Estrada to be a U.S. Circuit Judge for the D.C. Circuit."
Posted at 12:18 by Howard Bashman



"An expensive misunderstanding": The Seattle Times today reports here that "Judge in tree case trimmed $500,000." And The Seattle Post-Intelligencer reports here that "Judge to pay $500,000 for cutting park trees; Under settlement, no criminal charges filed against Farris." Thanks to a Seattle-based fan of the blog for bringing these new developments to my attention in this controversy involving a Seattle-based Senior Ninth Circuit Judge.
Posted at 12:11 by Howard Bashman



"Estrada Wins: What a difference an election makes": Byron York offers this report at National Review Online.
Posted at 10:11 by Howard Bashman



In other news: "One of Silicon Valley's elite law firms to close down," The Mercury News reports here. And The Financial Times has an article entitled "Companies gave to charity linked to al-Qaeda."
Posted at 09:39 by Howard Bashman



Speaking hypothetically: The very next participant in this Web log's newest feature -- "20 questions for the appellate judge" -- may, hypothetically speaking, be a judge who serves on the U.S. Court of Appeals for the Ninth Circuit. In preparing the 20 questions that I submitted to Fifth Circuit Judge Jerry E. Smith, whose interview you can access here, I sought reader input and even used one reader-suggested question. Any readers who would like to suggest one or two questions for a Ninth Circuit interviewee can do so via email. And if your questions are not among those selected for my next interview, do not despair, because if one Ninth Circuit Judge has hypothetically volunteered to participate, you can be sure that more than one Ninth Circuit judge has hypothetically volunteered to participate.
Posted at 08:59 by Howard Bashman



Bring in 'da Noise, Bring in 'da FERC: I was planning to use the title of this post, patterned after the title of a popular Broadway show, to commemorate the confirmation of the first George W. Bush nominee to the U.S. Court of Appeals for the D.C. Circuit, but some ideas just refuse to be put on hold. It's not that I have anything against the Federal Energy Regulatory Commission, whose cases provide a big part of the D.C. Circuit's workload, other than that FERC cases tend to be exceptionally complicated and exceedingly boring.
Posted at 08:57 by Howard Bashman



A very brief look at reader mail: I received an email yesterday from a reporter who works for what is probably this Nation's largest newsgathering organization. She wrote, "I got back from maternity leave this month and have found all my colleagues got addicted to your site while I was gone!" In other news, it's possible that "How Appealing" will receive nationwide mention in the press someday soon. If that happens, you may find mention of it here. Could an appearance on a C-SPAN panel to discuss legal developments be far off?
Posted at 08:44 by Howard Bashman



Elsewhere in Friday's newspapers: In today's edition of The Los Angeles Times, David G. Savage reports here that "Bush Judicial Nominee Gets Panel's Nod; In voting in favor of a conservative lawyer, Republicans on the Senate Judiciary Committee harnessed new majority power." You can access here an article entitled "'Shoe Bomber' Reid Given 3 Life Terms; He hails Bin Laden and shouts at the judge, who replies, 'You're no warrior.... You are a terrorist'" and here the text of the shoe bomber's statement and the trial judge's statement at yesterday's sentencing hearing. In news from California, this article reports "Selna Nominated to Federal Bench in L.A."; here's an article captioned "Retired Judges Must Choose Between Public, Private Jobs"; and you can access here an article entitled "Acquitted, but Not Declared Innocent; The state Supreme Court denies attempt by the wife of a Sylmar man slain in 1996 to have records of her arrest and murder trial destroyed."

The Washington Times reports here that "Judiciary panel OKs Estrada." This article reports that "Ashcroft touts rise in federal gun-crimes prosecutions." You can access here an article entitled "Flexibility sought on Title IX quotas" and here a commentary by Linda Chavez entitled "On the Title IX playing field." In news from Maryland, this article reports that "Attorney General J. Joseph Curran Jr. yesterday said his personal opposition to the death penalty does not affect the ability of his office to represent Maryland in appeals of capital-punishment sentences." Relatedly, here's a commentary entitled "It's time for us to speak up on capital punishment."

In USA Today, Joan Biskupic reports here that "Panel narrowly approves court nominee." And you can access here a front page article that bears the headline "Judge to bomber: 'You're no big deal'; Shoe attacker given life -- with a scolding."

The Boston Globe reports here that "Sentenced to life, Reid denounces US; 'You will be judged by Allah,' he shouts." Finally for now, you can access here an article that begins, "In a blistering attack on the credibility and temperament of Superior Court Judge Maria I. Lopez, the attorney for the Commission on Judicial Conduct is calling for her removal from the bench for allegedly testifying falsely under oath, verbally abusing a female prosecutor, and showing 'contempt for the rule of law.'"
Posted at 08:25 by Howard Bashman



In Friday's newspapers: In The New York Times, Neil A. Lewis reports here that "A Once-Doomed Nomination Wins Senate Panel Approval." You can access here an article entitled "Unrepentant Shoe Bomber Sentenced to Life." Adam Liptak reports here that "Top Lawyer in Maryland Calls for End to Executions." This article reports that "Advisory Panel Backs Easing Rules for Title IX." And, in news from California, "West Coast Law Firm Closing After Dot-Com Collapse."

The Washington Post reports here that "Senate Panel Approves Estrada's Nomination." Here's an article entitled "Foiled Shoe Bomber Gets Life Sentence; Al Qaeda Member Shouts at Judge." You can access here an article entitled "Md. Attorney General Asks For End to Death Penalty." This article reports that "Court Reverses Mining Ruling; Decision Allows Dumping of Rocks and Dirt in Rivers, Streams." In news from Virginia, this article reports that "Va. Senate Panel Passes 'Infanticide' Measure; Bill Targets Late-Term Abortion Procedure." Finally for now, you can access here an editorial entitled "Don't Blame Jesus" about legislative prayer in the Maryland State Senate.
Posted at 00:20 by Howard Bashman



"Verizon appeals RIAA subpoena win": Declan McCullagh reports here that "Verizon Communications is asking an appeals court to block a court order that would reveal the identity of an alleged peer-to-peer pirate to the music industry."
Posted at 00:15 by Howard Bashman



Thursday, January 30, 2003
Available online at law.com: You can access here an article entitled "Former AGs Face Off in Bias Appeal Before 11th Circuit." In news from the Second Circuit, this article reports that "Work-Product Shield Denied in Bribe Case." Finally, two high-ranking officials of Community Rights Counsel have an op-ed urging the U.S. Supreme Court to uphold the legality of IOLTA programs to fund legal services for the indigent.
Posted at 23:26 by Howard Bashman



"Md. Attorney General: End Executions": The Associated Press offers this report.
Posted at 23:18 by Howard Bashman



Don't mention it: Earlier today, I mentioned here two very interesting Seventh Circuit rulings that issued today, both written by Circuit Judge John L. Coffey.

Reader Kurt Hemr has since emailed to ask about Judge Coffey's admonition against citing unpublished opinions in the Rastafarian supervised release revocation case. In footnote one of that opinion (located on page 6 of the PDF file), Judge Coffey writes: "This Court wishes to remind Israel’s counsel that pursuant to Circuit Rule 53, unpublished cases shall not be cited or used as precedent."

That footnote, it seems to me, takes a more sweeping view of Seventh Circuit Local Rule 53 than the rule's text allows. Specifically, Local Rule 53(e) states (omitting an immaterial exception): "no unpublished opinion or order of any court may be cited in the Seventh Circuit if citation is prohibited in the rendering court." The Seventh Circuit's local rule therefore only prohibits the use of unpublished opinions if the issuing court itself prohibits citation. Local Rule 53(e) does not contain a blanket prohibition on the use of unpublished opinions, footnote one of Judge Coffey's opinion notwithstanding.
Posted at 22:55 by Howard Bashman



May a shrinkwrap license override the fair use defense without being preempted by the Copyright Act? Yesterday the U.S. Court of Appeals for the Federal Circuit answered that question in the affirmative, giving rise to a circuit split with the U.S. Court of Appeals for the Fifth Circuit. Federal Circuit Judge Timothy B. Dyk dissented on this issue. You can access the Federal Circuit's ruling at this link. (Thanks to a soon-to-be law clerk to a Tenth Circuit judge for making sure I didn't overlook this case.)
Posted at 22:49 by Howard Bashman



Judge Rendell's recusal policy becomes clearer: Last night a post of mine that you can access here began:
Time will eventually tell what recusal policy Third Circuit Judge Marjorie O. Rendell plans to follow in cases involving the Commonwealth of Pennsylvania now that her husband, Ed Rendell, is serving as the Governor of Pennsylvania.

[Yesterday] the Third Circuit issued this decision involving a prisoner's claims against the Commonwealth of Pennsylvania's prison system, and Judge Rendell was one of the three judges on the panel who unanimously voted to reinstate the prisoner's lawsuit, which a Philadelphia-based federal district judge had dismissed. The appeal was argued back in August 2002, while Judge Rendell's husband was still out on the election trail.

I'd be interested to hear from readers who know if any guidance exists concerning the recusal policy that a federal judge should adopt when his or her spouse is the chief executive officer of a State. I would imagine that this question probably has not arisen too often, if at all, in the past. Perhaps the answer depends on how one construes 28 U.S.C. sec. 455(b)(5).
Thanks to a reader who emailed to draw to my attention the fact that Judge Rendell, in this decision issued today, did in fact recuse in a case in which the Commonwealth of Pennsylvania was a party.

Some may find the language of the footnote mentioning Judge Rendell's recusal to be of interest. It states:
The Honorable Marjorie O. Rendell participated in the oral argument and conference and joined in the decision in this case on June 13, 2002, but became recused from this matter prior to filing of the opinion. This opinion and judgment are being entered insofar as the remaining judges are unanimous in this decision.
What's funny, at least to me, is that while the footnote states that Judge Rendell is now recused from joining in today's decision, the footnote nevertheless goes on to mention that Judge Rendell had agreed to join in the decision before her need to recuse arose. Should a recused judge announce how he or she would have ruled had he or she not been recused?
Posted at 22:33 by Howard Bashman



"S.F. law giant Brobeck to dissolve": The San Francisco Business Times reports here that "Brobeck Phleger & Harrison LLP, suffering from a steep drop in profits, said Thursday it will dissolve its law practice after merger negotiations with a Philadelphia-based firm broke off." The Recorder offers this additional coverage. Thanks to the author of the "for the sake of clarity" blog for forwarding along this news. And Denise Howell offers some additional links here.
Posted at 22:08 by Howard Bashman



"GOP Pushes Past Dem Judicial Blocks": This article from The Associated Press states in its final paragraph that "Hatch said he hoped to hold committee votes next week on three other appellate court nominees -- Jeff Sutton, Deborah Cook and John Roberts -- although Democrats are likely to ask for a one-week delay." And now that one nominee has been favorably reported out of committee, it will be interesting to see how quickly a confirmation vote will be brought to the floor of the U.S. Senate.
Posted at 20:43 by Howard Bashman



Today's online commentary relating to the University of Michigan racial preferences in student admissions cases: Slate has just posted online an essay by Elise Boddie entitled "Colorblind in One Eye: The selective colorblindness of the Bush approach to affirmative action." Meanwhile, National Review Online offers an essay by Roger Clegg asserting that "Alumni preferences are not an argument in favor of race quotas" and an essay by Peter W. Wood addressing "How much will things change after Michigan?"
Posted at 17:16 by Howard Bashman



"Senate Panel Backs Appeals Court Nominee": Neil A. Lewis of The New York Times offers this report. And Helen Dewar of The Washington Post has an article entitled "Bush Nominee Pushed Through Committee."
Posted at 17:12 by Howard Bashman



View all nine hours, eleven minutes, and nine seconds of it: Thanks to the wonders of the Internet, online access continues to be available to the video of yesterday's Senate Judiciary Committee hearing. You can access it via this link at the Jurist Web site or here via the Senate Judiciary Committee's Web site (where, unlike at Jurist, you should skip ahead through the first thirty-five minutes of video nothingness). Yesterday's hearing, of course, considered the nominations of Deborah L. Cook, John G. Roberts, Jr., and Jeffrey S. Sutton to fill federal appellate court vacancies.

While I'm on the subject of judicial nominees, you can access here the prepared text of Senator Orrin G. Hatch's remarks at this morning's Senate Judiciary Committee business meeting, and here the prepared text of Senator Patrick J. Leahy's remarks at that same meeting.
Posted at 16:49 by Howard Bashman



Published? Unpublished? You make the call: This decision that the U.S. Court of Appeals for the Fourth Circuit issued today gives rise to the following conundrum. At the top of the opinion, in big, bold letters, is the notation PUBLISHED. The line-up of how the judges voted begins, "Affirmed by published opinion." But, making things much more interesting, page two begins with the disclaimer, "Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c)." That disclaimer, of course, is reserved for the Fourth Circuit's unpublished opinions. All this provides just one more reason in favor of my view that federal appellate courts should cease designating opinions as "non-precedential" at the time of issuance.
Posted at 16:06 by Howard Bashman



"Shoe Bomber Sentencing Hearing Begins": The Associated Press offers this report.

Update: The shoe bomber has just received a sentence of life imprisonment without parole. No surprise there. Here's the latest from The AP.
Posted at 15:37 by Howard Bashman



A double dose of Coffey: Circuit Judge John L. Coffey is the author of two quite interesting decisions that the U.S. Court of Appeals for the Seventh Circuit issued today.

You can access here an opinion that begins:
Defendant-Appellant Jarvis Jefferson, now known as Rohi Israel ("Israel"), is a felon who admits smoking marijuana "every day all day." He appeals the revocation of his supervised release, arguing that his frequent marijuana use should be permitted as it is based upon his religious belief in Rastafarianism. We affirm.
I'll leave it to others to decide whether this sentence from later in the opinion intentionally contains a pun: "We note in passing--not that we need to hash out another justification in full--that we could have affirmed the district court's decision on other grounds." Among other reasons why this opinion is interesting, it assumes that the Religious Freedom Restoration Act applies to the federal government and examines whether the federal government's revocation of supervised release violates RFRA.

Judge Coffey's other opinion of note today states at its conclusion:
The record makes abundantly clear that the University of Illinois terminated Professor Leonard J. Trejo because his lack of professionalism, poor judgment, and insufferable behavior around his colleagues and fellow graduate students disrupted the educational process and tarnished the University's good name. Several administrators met personally with Trejo before his discharge, thereby allowing him greater procedural benefits than any to which he was entitled as a non-tenured probationary employee. We are convinced from our review that Trejo failed to raise a genuine issue of material fact on his free speech or due process claims under the Federal Constitution or the Illinois Constitution. Accordingly, the administrators at the University of Illinois were entitled to summary judgment on each count of the complaint in this case.
What did Professor Trejo allegedly do that led to his discharge? Consistent with this Web log's PG-13 rating, I'm afraid you'll have to consult the opinion yourself to find out.

Update: A reader emails to say: "You may have missed an even better pun in today's 7th Circuit decision denying a parolee's RFRA claim after the parolee was returned to prison for smoking marijuana. Page 7 of the opinion has the following statement: 'Furthermore, demanding that a convicted felon on parole abstain from marijuana use is a legitimately restrictive means for safeguarding this interest. Any judicial attempt to carve out a religious exemption in situation would lead to significant administrative problems for the probation office and open the door to a weed-like proliferation of claims for religious exemptions.'"
Posted at 15:21 by Howard Bashman



"Heads I win, tails you'll never find me": A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has today issued a truly fascinating and exceptionally well-written opinion addressing "whether the fugitive disentitlement doctrine applies to an alien who goes missing while his petition for review of a deportation order is pending."

In his opinion for the panel, Circuit Judge Alex Kozinski provides the following background:
Petitioner Pasqual Antonio-Martinez was a rope-maker in Guatemala in the 1970s. Unsatisfied with his paycheck, he took up more lucrative work as an enforcer for a group called the "Guerrilla Army of the Poor." His new job was to go door-to-door shaking down local villagers for food and money to support the guerrillas, like an out-of-control UNICEF collector. The guerrillas threatened to kill anyone who didn't donate, and Antonio-Martinez kept a list of those who did and those who didn't. The Guatemalan authorities, not amused by his guerrilla credentials and aggressive brand of solicitation, sent soldiers to rough him up. Antonio-Martinez fled to Mexico and, in 1982, went on to the United States.

In 1985, the INS sought to deport him. At a hearing before an Immigration Judge, Antonio-Martinez conceded deportability but argued that he was entitled to asylum because he had been "persecuted" by the Guatemalan authorities. The Immigration Judge, taking a dim view of his extortion of civilians, refused to grant asylum and found him deportable as charged. Antonio-Martinez appealed to the Board of Immigration Appeals, where the case remained until 1990, when the Board finally affirmed the Immigration Judge's decision.

Antonio-Martinez petitioned for review to our court. While his petition was pending and before it was calendared, the INS settled a class action that alleged bias in its adjudication of Guatemalan asylum claims. See Am. Baptist Churches (ABC) v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991). The ABC settlement offered benefits to class members including the possibility of de novo asylum hearings. With the parties' consent, we dismissed Antonio-Martinez's petition without prejudice to reinstatement to allow him to pursue relief under ABC. We withheld our mandate so that he would not be deported in the meantime. See 8 U.S.C. sec. 1105a(a)(3) (repealed 1996).

The case thereafter entered a protracted phase of litigative limbo where the government and Antonio-Martinez repeatedly asked us to extend our stay of the mandate. Obliging, we granted further stays in 1994, 1995, 1998 and 1999. Apparently, no progress has been made on Antonio-Martinez's efforts to obtain an ABC asylum hearing. In October 2000, Antonio-Martinez's then-counsel informed us that he had lost contact with his client. The lawyer had sent several letters to his last known address and contacted numerous other people, but had been unable to locate him and "ha[d] no direct knowledge of [his] status." Further efforts to track down Antonio-Martinez by both counsel and the INS have been unavailing. He has now been out of touch for well over two years.

In light of Antonio-Martinez's absence, a motions panel refused to further extend the de facto stay of proceedings and sua sponte reinstated his petition for review of the BIA's 1990 decision. The government now asks us to dismiss the petition under the fugitive disentitlement doctrine. It argues that Antonio-Martinez, by perambulating to parts unknown, has forfeited his right to review.
You can access the complete opinion, and learn the answer to the question presented in the case, at this link.
Posted at 13:33 by Howard Bashman



"Estrada Nomination Goes to Senate Vote": The Associated Press is now offering this report.
Posted at 12:24 by Howard Bashman



"Federal court ruling in Somerset nude dance case could serve as precedent": Yesterday's edition of The New Richmond (Wisconsin) News contained this report. Because the ruling in question issued from the U.S. Court of Appeals for the Seventh Circuit, I'd say the odds are quite good that it will serve as precedent, at least within the States of Illinois, Indiana, and Wisconsin.
Posted at 12:07 by Howard Bashman



"Que Pasa, Chuck?": Former Congressman Herman Badillo (D-NY) has an op-ed bearing this title in today's edition of The Wall Street Journal. The "Chuck" in question is Senator Charles E. Schumer (D-NY). Badillo writes in his op-ed:
When confirmed by the Senate, Miguel Estrada, a brilliant lawyer with extraordinary credentials, will be the first Hispanic on the second most prestigious court in the land. He will be a role model not just for Hispanics, but for all immigrants and their children. His is the great American success story.
You can access the complete op-ed at this link.
Posted at 11:51 by Howard Bashman



The Senate Judiciary Committee has voted to report favorably the nomination of Miguel A. Estrada: Congratulations to D.C. Circuit nominee -- and reader of "How Appealing" -- Miguel A. Estrada, whose nomination the Senate Judiciary Committee has just voted along political party lines, 10-9, to report favorably to the floor of the U.S. Senate.

In other news, the Judiciary Committee has scheduled its next hearing for Wednesday, February 5, 2003. On the agenda that day are Ninth Circuit nominee Jay S. Bybee and three federal district court nominees.
Posted at 11:20 by Howard Bashman



"GOP Looks to Pressure on Estrada Pick": The Associated Press offers this report.
Posted at 11:12 by Howard Bashman



"Obstruction of Judges": For some reason I'm reminded of this very interesting article that ran in The New York Times Magazine back on August 11, 2002.
Posted at 11:00 by Howard Bashman



En banc Sixth Circuit resolves how to decide whether cost-splitting in arbitration agreement undermines purposes of federal anti-discrimination law: The Sixth Circuit has divided 6-2 in favor of what the dissenting opinion describes as a "complicated pre-arbitration quasi-class action litigation scheme." You can access today's opinion at this link.
Posted at 10:41 by Howard Bashman



Listen live to today's Senate Judiciary Committee business hearing: You can listen live to the Senate Judiciary Committee's business hearing, which is now underway, via this Web page. Simply select the link for Room Dirksen-226 (SD-226) or click here (Real Player required). The committee today will vote on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit.
Posted at 09:41 by Howard Bashman



"Controversial judicial nominee divides Hispanic groups": The Knight Ridder News Service yesterday offered this report.
Posted at 09:32 by Howard Bashman



Today's federal judicial nomination and confirmation news from here and there: The Beacon Journal of Akron, Ohio reports here that "Senators grill judicial nominees; Committee members fire tough questions at trio, including Akron's Cook." The Cincinnati Enquirer this morning contains an article entitled "Ohio judicial nominee grilled; Columbus lawyer: Dems are confused." The Dayton Daily News reports here that "Judicial nominee Jeffrey Sutton faces Senate grilling."

Some Ohio-based coverage of yesterday's Senate Judiciary Committee hearing bears headlines that celebrate prematurely. The Repository of Canton, Ohio contains an article whose headline reads, "Judiciary Committee approves two Ohio nominees for U.S. Appeals Court." And The Columbus Dispatch reports here that "Senate Committee Approves Cook Nomination." In fact, the committee yesterday voted on none of the nominations.

Conservative commentator Paul M. Weyrich, in an op-ed, contends that the "New York Times Omits Key Facts On Miguel Estrada."

And now I will take a moment to offer some commentary of my own about yesterday's Senate Judiciary Committee hearing. Having listened to most of yesterday's hearing, it was obvious that Democratic members of the committee were unable to question all three federal appellate court nominees as thoroughly as the Senators had hoped due to the fact that the three nominees were being considered on the same day. Nevertheless, the Democrats controlled the Senate Judiciary Committee for most of the past two years, and each of these three federal appellate court nominees could have been individually called to a hearing last year while the Democrats were in control. So, while the Republicans deserve some of the blame for the lack of time for questioning at yesterday's hearing, the Democrats are themselves far from blameless.
Posted at 07:00 by Howard Bashman



Elsewhere in Thursday's newspapers: David G. Savage of The Los Angeles Times has an article this morning entitled "GOP Picks Up the Pace on Judicial Nominees." An article that you can access here reports that "Law Supporting Women's Sports Is Now on the Defense." A columnist contends that "Bush Is Still Badly Out of Step With California." And Norah Vincent has an op-ed entitled "Affirmation Action for Bluebloods."

The Washington Times reports here that "Judge pick hit on stances on disability." And you can access here an article entitled "Panel tempers Title IX support."

Finally for now, The Boston Globe reports here that "Battle reheating over court nominees; GOP-led Senate panel set to press case for 31 rejected once before." The assertion that thirty-one of the nominees have previously been "rejected" is quite an overstatement.
Posted at 06:32 by Howard Bashman



"GOP, Democrats Ready to Spar Over Judges": The Associated Press offers this early morning report.
Posted at 06:28 by Howard Bashman



In Thursday's newspapers: The New York Times reports here that "G.O.P. Groups Judicial Nominees to Thwart Opponents." And Virginia Postrel offers "A Tool to Explain Affirmative Action."

In The Washington Post, you can access here an article entitled "Republicans Push Speedy Action on Court Picks; Partisan Acrimony Marks Senate Panel's Hearing on Judiciary Nominations." Finally for now, here's an article entitled "2 Faith-Based Proposals May Face Legal Challenge."
Posted at 00:27 by Howard Bashman



Senator Patrick J. Leahy's opening statement from Wednesday's Senate Judiciary Committee hearing is available online: You can access it here.
Posted at 00:12 by Howard Bashman



Wednesday, January 29, 2003
The Uncola: I was visiting Lane's Alaska blog, which made me curious to learn precisely where in Alaska the town of Fairbanks is located. Thanks to Expedia Maps, I quickly found the answer. But once I zoomed out far enough to see the entire State of Alaska, I happened to notice the quite interestingly named town of Unalaska, Alaska. You can learn more about Unalaska here and here.

Meanwhile, in some appellate news relating to Alaska, The Fairbanks Daily News-Miner reports here that "Native corporations lose wireless fight."
Posted at 22:30 by Howard Bashman



"No Free Speech Violation Found in Law Clerk's Firing": law.com provides this report of a recent Second Circuit ruling that I first mentioned here yesterday.
Posted at 22:26 by Howard Bashman



First Lady and Third Circuit: Time will eventually tell what recusal policy Third Circuit Judge Marjorie O. Rendell plans to follow in cases involving the Commonwealth of Pennsylvania now that her husband, Ed Rendell, is serving as the Governor of Pennsylvania.

Today the Third Circuit issued this decision involving a prisoner's claims against the Commonwealth of Pennsylvania's prison system, and Judge Rendell was one of the three judges on the panel who unanimously voted to reinstate the prisoner's lawsuit, which a Philadelphia-based federal district judge had dismissed. The appeal was argued back in August 2002, while Judge Rendell's husband was still out on the election trail.

I'd be interested to hear from readers who know if any guidance exists concerning the recusal policy that a federal judge should adopt when his or her spouse is the chief executive officer of a State. I would imagine that this question probably has not arisen too often, if at all, in the past. Perhaps the answer depends on how one construes 28 U.S.C. sec. 455(b)(5).

Update: An amazingly well-informed reader (who recently wrapped-up a clerkship for a quite excellent Ninth Circuit Judge) sends along this email:
Re the recusal question you posed on the blog this evening: The newly elected Governor of Kansas, Kathleen Sebelius, is married to a recently selected federal magistrate judge (who was also an unsuccessful US District Court nominee during the Clinton years). Kansas's new "First Dude" (his term) says he'll recuse from any case to which Kansas is a party. See this news report for more details.

Coincidentally, Minnesota's new governor is married to a judge on the state district court.
Readers can learn more about Minnesota's new Governor, Tim Pawlenty, at this link.
Posted at 21:15 by Howard Bashman



"Reid's Lawyers Seek Delay in Sentencing": The Associated Press offers this report on the latest developments in the confessed shoe bomber federal court sentencing proceeding.
Posted at 21:04 by Howard Bashman



"Court Overturns Ruling on Mine Waste": Proving once again that a mine is a terrible thing to waste, The Associated Press provides this report on a ruling issued today by the U.S. Court Court of Appeals for the Fourth Circuit. How does a case that seems to be all about Kentucky end up in the Fourth Circuit? Good question, and the opinion provides the answer.

Circuit Judge J. Michael Luttig issued an opinion concurring in the judgment in part and dissenting in part. His opinion states, at its conclusion:
In this case, the sole issue on appeal is whether the district court's judgment and opinions, which confront issues not raised and grants relief no party requested, all the while failing to reach the one issue actually raised, were proper. Clearly, neither is. As a result, I would vacate the district court's entire injunction and its opinions and remand for consideration of the only issue that has ever been presented by these parties -- the lawfulness of the Martin Coal permit under the Corps' 1977 regulations. If a new judge is not to be designated, the integrity of the judicial process requires at least that we wipe the slate clean, returning these parties to where they started, and require the district court in the first instance to decide the issue presented by the complaint -- and only that issue -- after which a decision on the merits of the dispute would be in order. As currently postured, the case is, to cast legalese aside in favor of clarity, upside-down. And no amount of disquisition undertaken from the same essential procedural perspective of the district court can turn it upright -- not even one, as the majority's, that arrives at conclusions diametrically opposite those reached by the district court.
You can access the Fourth Circuit's complete opinion, released today forthwith in typescript format, at this link.
Posted at 20:26 by Howard Bashman



The agenda for tomorrow morning's Senate Judiciary Committee business meeting is now available online: You can access the agenda here. The committee is scheduled to vote on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit.
Posted at 20:13 by Howard Bashman



"Google-Opoly: The Game No One but Google Can Play; The strange Google lawsuit over its page-ranking monopoly." Dahlia Lithwick's latest jurisprudence column is available online here at Slate.
Posted at 19:06 by Howard Bashman



And at 7 p.m. eastern time, the federal district judge nominees get to be the focus of today's Senate Judiciary Committee hearing: For a wrap-up of the earlier portions of today's hearing, you can access here an article from The Associated Press entitled "Democrats Grill Appeals Court Nominee."
Posted at 18:57 by Howard Bashman



"Judge Blocks Discount Pharmacy Card": This article from The Associated Press begins, "A federal judge on Wednesday barred the Bush administration from putting in place a plan to offer discount pharmacy cards to Medicare recipients. In a surprise ruling from the bench, U.S. District Judge Paul L. Friedman said it was 'mind-boggling' that the government would try to implement the program without having statutory authority." You can access Judge Friedman's order at this link.
Posted at 17:13 by Howard Bashman



"We're going to finish this today": That's what Senate Judiciary Committee chairman Senator Orrin G. Hatch just told Senator Charles E. Schumer when Senator Schumer asked that the committee bring D.C. Circuit nominee John G. Roberts, Jr. and Sixth Circuit nominee Deborah L. Cook back for another hearing day. The two senators are continuing to argue the point, and today's hearing is likely to go into the night. What is clear is that Chairman Hatch will not agree to bring these nominees back for another day of hearings.
Posted at 16:58 by Howard Bashman



"Professor Sutton": Why are so many of the Democratic Senators at today's Senate Judiciary Committee confirmation hearing calling attorney Jeffrey S. Sutton "Professor Sutton"? The answer can be found here on the Web site of the Michael E. Moritz College of Law of The Ohio State University. You see, Sutton serves as an Adjunct Professor of Law there on the subjects of "Supreme Court Litigation and State Constitutional Law."

And while we're visiting the Moritz College of Law's Web site, don't miss this announcement of U.S. Supreme Court Justice Sandra Day O'Connor's visit to that law school scheduled for Friday, March 14, 2003.
Posted at 15:28 by Howard Bashman



Jacob T. Levy writes about the Bureau of Indian Affairs land management case at The New Republic online: You can access the first of Professor Levy's monthly online TNR columns here, and his blog is accessible here. It appears that each side of the case has a Web site, and you can access those sites here and here.
Posted at 15:04 by Howard Bashman



Ninth Circuit votes to grant initial hearing en banc in death penalty case: You can access today's order at this link. Given that this is an initial grant of hearing en banc, it is not immediately obvious what issues this death penalty case presents. If any of my Ninth Circuit-based readers would be so kind as to supply me with the questions presented, I'd be most appreciative.

Update: A reader familiar with the case responds:
The original en banc order in Bittaker involves a nagging and important issue in federal capital habeas cases. When petitioners challenge the competence of their trial counsel, they waive any attorney-client privilege under both state and--most--federal law. A number of district courts have been issuing protective orders greatly restricting the use of the formerly privileged material, especially in state retrials years later.

The court granted the California AG's request that a rare collateral order appeal in this case be heard en banc, in the first instance. The issue, as framed in the petition, concerns "the legal validity of a protective order which limits the disclosure and use of materials received by Respondent through discovery following Petitioner's claims of incompetent trial counsel, and the accompanying voluntary and undeniable waiver of the evidentiary privileges that once protected the confidentiality of the materials produced."
According to my correspondent, "The 9th Cir. cases on this point are in complete disarray."
Posted at 13:35 by Howard Bashman



"Sutton Pleads With Senators at Hearing": Jesse J. Holland of The Associated Press has this report.
Posted at 13:01 by Howard Bashman



Today's Senate Judiciary Committee Hearing: The hearing has just adjourned for a forty-five minute lunch break. During the morning session, I'd estimate that about ninety percent of the questioning has been directed to Jeffrey S. Sutton, ten percent to Deborah L. Cook, and the remaining zero percent to John G. Roberts, Jr.

Sutton seems to be doing quite a good job answering the tough questions that the Democratic Senators are sending his way. The biggest complaint that the Democrats on the committee have voiced is their great dissatisfaction that all three of these "controversial" nominees have been scheduled for a hearing on the same day. And let's not overlook that a few federal district court nominees are also on today's agenda. Chances are that the district court nominees won't reach the hot seat until very late in the day.
Posted at 12:50 by Howard Bashman



"An Unacceptable Editorial": Robert Alt of "The No Left Turns" blog offers this response to today's editorial in The New York Times about D.C. Circuit nominee Miguel A. Estrada.
Posted at 12:18 by Howard Bashman



Today's federal judicial nomination and confirmation news from here and there: The Detroit News reports here that "Grilling starts for appeals court posts; Senators will confront nominees -- 20 months after Bush tapped them." The Columbus Dispatch reports here that "Two Ohio Judges Have Confirmation Hearings For Federal Bench."

In The Hill, Byron York has an essay entitled "The unspeakable questions of Senator Schumer." And here's an article entitled "Senate GOP drafts new plan on minorities."

You can access here an essay entitled "Bush's Judicial Nominees Alarm Conservationists," and here a piece entitled "Liberal Groups Unite against Bush Judicial Nominees."

Finally for now, on Sunday The Cincinnati Enquirer ran an article entitled "U.S. judge nominees face Senate this week; Democrats plan tough questions."
Posted at 11:42 by Howard Bashman



Listen live to today's Senate Judiciary Committee hearing: You can listen live to this morning's Senate Judiciary Committee hearing, which is now underway, via this Web page. Simply select the link for Room Dirksen-226 (SD-226). There's a possibility that the festivities may be moved to another room mid-hearing to accommodate the overflow crowd that has turned out to attend the hearing, which involves three federal appellate court nominees: Sixth Circuit nominees Deborah L. Cook and Jeffrey S. Sutton; and D.C. Circuit nominee John G. Roberts, Jr.

Update: The committee hearing has indeed moved to a new room. As a result, the audio feed from Room Dirksen-226 no longer works, but this live video feed, provided by the committee, works fine if you have a broadband connection.
Posted at 10:17 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Washington Times reports here that "Malvo's trial set for November." Here you can access an article that begins, "Fairfax Commonwealth's Attorney Robert F. Horan Jr. yesterday expressed relief that the Supreme Court decided not to test the constitutionality of the death penalty for juvenile killers with Lee Boyd Malvo scheduled to stand trial for capital murder in the Washington-area sniper case." And Walter Williams has an op-ed entitled "Defining affirmative action."

The Los Angeles Times contains an article entitled "Reid Acted to Save Islam, Lawyers Say; The legal team of the 'shoe bomber' traces his troubled background in a pre-sentencing memo. He's likely to get life for trying to blow up a jet." You can access here an article that begins, "A California appellate court has effectively shut the door on efforts to obtain punitive damages in breach-of-contract disputes that are filed as fraud lawsuits." And here the newspaper reports that "Murder trial for Malvo set to start in November; Sniper suspect, 17, accused in killing of FBI analyst."

The Boston Globe reports here that "Reid's lawyers cite crisis, turn to Islam." And here USA Today reports here that "Shoe bomber steadfast in his holy war beliefs; Defiant Reid is 'expendable' foot soldier, one of many in al-Qaeda, terrorism experts say."

Finally for now, Bob Egelko of the San Francisco Chronicle reports here that "Beach Boy wipes out in attempt to use name." The article reports on this ruling issued yesterday by the U.S. Court of Appeals for the Ninth Circuit.
Posted at 08:16 by Howard Bashman



"Senate GOP Flex Muscles, Push Judges": The Associated Press offers this early morning report.
Posted at 06:14 by Howard Bashman



In Wednesday's newspapers: In an editorial, The New York Times calls Miguel A. Estrada, whom President Bush has selected to serve on the U.S. Court of Appeals for the D.C. Circuit, "An Unacceptable Nominee." If it's any consolation, the vast majority of the federal appellate court nominees whom The NYTimes has opposed during the past two years have gained confirmation by comfortable margins. And The NYTimes reports here that "Some Companies Back Michigan's Affirmative Action Policy."

The Washington Post reports here that "Malvo Trial Is Set for Nov.; Defense Calls Date Too Early." And OpinionJournal has an essay by Collin Levey entitled "Bang Bang, Your Suit's Dead; Two courtrooms wins for the Second Amendment." The title proves to be a bit of an overstatement.
Posted at 00:20 by Howard Bashman



Tuesday, January 28, 2003
The National Law Journal picks up my recent post about "eschewing cliches": Just last week, I had a post entitled "Judge Stephen Reinhardt agrees that it's best to 'eschew cliches.'"

This week's edition of The National Law Journal takes note:
Eschewing cliches

Maybe Bashman was only kidding.

At issue is a concurring opinion by 9th Circuit Judge Stephen Reinhardt, whose reputation as a wordsmith goes way back. Reinhardt uses the opinion, Eminence Capital v. Asperon, No. 01-56728, to urge the eschewal of cliches--specifically he's had it with the one about multiple bites of the apple.

But the opinion doesn't once credit Howard Bashman. Bashman, chairman of the appellate group at Pittsburgh's Buchanan Ingersoll, who maintains the Web "blog" How Appealing, points it out to those of us who might have missed it that he scooped Reinhardt by more than two months, having posted praise for those who eschew cliches--under that very title--at his site on Nov. 6.

Bashman graciously let it slide when, just two weeks after his seminal posting, the film critic of the Memphis, Tenn., Commercial Appeal, John Beifuss, similarly mined him when reviewing Solaris. Beifuss didn't like the film, but he did give it its due for eschewing cliches like spaceships and planet designs--and Bashman didn't complain.

Of course, this eschewing cliches thing can cut both ways. We found at least 70 writings that predate Bashman, praise the eschewal of cliches and didn't even get a nod from him on Nov. 6. And if we're talking originality here, the award goes to Judith Newmark, who, 22 years earlier, wrote about the drawbacks of eschewing cliches in the St. Louis Post-Dispatch.
I congratulate Gail Diane Cox on her very funny write-up, which you can access here (second item).
Posted at 23:41 by Howard Bashman



Tomorrow morning's Senate Judiciary Committee hearing to consider judicial nominees gets underway at 9:30 a.m. eastern time: The announcement doesn't yet say which federal appellate court nominees are scheduled to appear at the hearing, but I have previously provided that information in a post you can access here.
Posted at 23:27 by Howard Bashman



Elsewhere on law.com: Jonathan Ringel reports here that "Georgia's Governor and AG Nearing Showdown: Who speaks for Georgia? Perdue bid to end redistricting case prompts constitutional question." And here you can access a National Law Journal report entitled "Exxon Wins Reversal of $3.4B Verdict" about some old news from Alabama.
Posted at 23:21 by Howard Bashman



Passionate dissent from denial of rehearing en banc in Ninth Circuit murder case granting writ of habeas corpus attracts only a total of four votes: Readers shouldn't miss Ninth Circuit Judge Andrew J. Kleinfeld's dissent from the denial of rehearing en banc issued today in a murder case in which the three-judge panel granted habeas relief on the theory that the defendant's lawyer provided ineffective assistance of counsel in his closing argument to the jury.

A reader of this blog sent me an email entitled "Kleinfeld and Officer Krupke" about the dissent, and the email goes on to say:
I'm a big fan, checking your site several times a day. How have you missed Judge Kleinfeld's all-time dissent from the 9th Cir.'s outrageous denial of rehearing in Gentry v. Roe. It fully explains the outright mutiny the 9th Cir. is engaged in in habeas cases. After Packer and Visciotti (SCOTUS summary reversals in California habeas cases), you'd think they would have gotten the message. Instead, they're increasing their insubordination. 9th Cir. to SCOTUS: Drop dead!
Of course, I didn't miss the dissent. I was simply saving it up for tonight. The reference to Officer Krupke, by the way, can be found in footnotes thirteen and fourteen of Judge Kleinfeld's dissent, where he quotes passages from Stephen Sondheim's "West Side Story."

Judge Kleinfeld's dissent also did not escape the attention of reporter Jason Hoppin, who has this article about the opinion in tomorrow's edition of The Recorder.
Posted at 23:11 by Howard Bashman



First Circuit holds that "public website providers ought to say just what non-password protected access they purport to forbid": Today the U.S. Court of Appeals for the First Circuit affirmed a preliminary injunction that prohibited the defendant from using a "scraper tool" to collect pricing information from the Web site of the plaintiff, a competitor in the student travel business.

The opinion explains:
A scraper, also called a "robot" or "bot," is nothing more than a computer program that accesses information contained in a succession of webpages stored on the accessed computer. Strictly speaking, the accessed information is not the graphical interface seen by the user but rather the HTML source code--available to anyone who views the site--that generates the graphical interface. This information is then downloaded to the user's computer. The scraper program used in this case was not designed to copy all of the information on the accessed pages (e.g., the descriptions of the tours), but rather only the price for each tour through each possible gateway city.

Zefer built a scraper tool that scraped two years of pricing data from EF's website. After receiving the pricing data from Zefer, Explorica set its own prices for the public, undercutting EF's prices an average of five percent. EF discovered Explorica's use of the scraper tool during discovery in an unrelated state-court action brought by Explorica's President against EF for back wages.
You can access the complete opinion at this link.
Posted at 22:50 by Howard Bashman



Seventh Circuit instructs lawyers not to interview federal court jurors post-verdict without the trial court's permission: You can access Circuit Judge Terence T. Evans's opinion issued today for a unanimous three-judge Seventh Circuit panel at this link.
Posted at 22:39 by Howard Bashman



First Circuit allows federal government to avoid consequences of having appealed to the wrong court in appeal challenging military funding of abortion: Today a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit, in an opinion by the always-interesting Circuit Judge Bruce M. Selya, ruled that the First Circuit would exercise its discretion to transfer to the proper appellate court the federal government's appeal of an order that required the U.S. military to pay for an abortion for an Air National Guard officer's wife. This dispute arose because the mother's life was not in danger, and a federal statute exists that limits the military's responsibility to pay for abortions to cases in which the pregnancy threatens the life of the mother.

As Judge Selya's opinion explained:
It is nose-on-the-face plain that the decision below has ramifications far beyond its impact on this particular dispute. The decision undermines an Act of Congress and, in the bargain, invalidates part of a major program administered by the Executive Branch of the federal government. What is more, its correctness seems, at first blush, to be a matter over which reasonable jurists could disagree. It follows that appellate review of the district court's decision may well prove important from the standpoint of public policy.
Instead of appealing to the First Circuit, the government should have appealed to the U.S. Court of Appeals for the Federal Circuit, because the federal district court's subject matter jurisdiction in the case arose under the so-called Little Tucker Act, 28 U.S.C. sec. 1346. See 28 U.S.C. sec. 1295(a)(2).

The First Circuit's ruling will allow the briefs and appendix in the case to be put to good use by the Federal Circuit, avoiding the senseless waste of trees used to make the paper on which those documents were printed. And avoiding the senseless waste of trees was certainly a relief to Senior Ninth Circuit Judge Jerome Farris, who sat by designation on the First Circuit panel that decided this appeal, as he has recently been accused of exhibiting insensitivity to trees in his home town (see here and here for more details).

The merits of the appeal that the First Circuit has today transferred to the Federal Circuit are very interesting and of great import, so I'll be watching this appeal closely in the days, weeks, and months ahead.
Posted at 22:28 by Howard Bashman



A look at the briefs submitted in the University of Michigan racial preferences in student admissions cases: Over at the blog "Discriminations," John Rosenberg today has begun "an occasional, irregular series" in which he will quote "excerpts from the various briefs submitted to the Supreme Court in the Michigan affirmative action cases." Today he takes a look at an amicus brief on behalf of sixteen law school professors (only four of whom I've ever heard of before today) submitted by appellate attorney Erik S. Jaffe.
Posted at 22:03 by Howard Bashman



"Ashcroft, Mineta Miss State of the Union": The Associated Press reports here that "President Bush designated Attorney General John Ashcroft to stay away from his State of the Union speech Tuesday night, making Ashcroft the successor to head the government should catastrophe strike at the Capitol." The article goes on to note that "three Supreme Court justices gathered for the State of the Union address." I only spotted Justice Stephen G. Breyer in the crowd. Did anyone else see two other U.S. Supreme Court Justices in attendance?
Posted at 21:52 by Howard Bashman



Still to come tonight: Except for playing the annual game of "Let's see which U.S. Supreme Court Justices show up for the State of the Union address" -- perhaps Justices on the verge of retirement will want to make one last appearance while still in active service -- I hope to summarize here tonight a bunch of other interesting federal appellate decisions that issued today. I invite you to stay tuned for that.
Posted at 20:12 by Howard Bashman



"Lawyers: Reid Sought to Protect Islam": The Associated Press offers this startling report on the latest developments in the shoe bomber sentencing proceeding.
Posted at 20:06 by Howard Bashman



On rare occasion I amaze even myself: This post wraps-up some issues that I raised earlier today. In a post you can access here, I reprinted an email from a reader who wished that The Federalist Society's online store featured women's shirts. This afternoon I received an email from the very same reader reporting:
I don't know exactly when it appeared, but there is now a women's t-shirt in the 20th anniversary section!! Now do I get to say I told you so, or something of that nature??
I wrote back to say that the reason why the women's shirts appeared was that I had spent all last night knitting. But of course I was kidding, as this email that I received this evening from C. David Smith, Membership Director of The Federalist Society for Law and Public Policy Studies, makes clear:
Thank you for bringing to my attention (via your blog) our lack of Federalist Society women's T-shirts. I would just like to let you and your readers know that as of today we now have four different versions of women's T-shirts for sale at www.cafeshops.com/fedsoc. Each version is a 100% cotton and has a variation of our James Madison logo emblazoned on either the front or the back. Thank you again for posting your reader's email. I'd be happy to consider any further additions to our store, but I'm not so sure we'll be putting up a thong anytime soon.

On a different note, I would just like to say how much I enjoy your site when I get the chance to visit it. Keep up the great work.
And if that wasn't enough fun for one day, I am pleased to report, in response to the question raised at the tail end of this post from this morning, that I am reliably informed that I was among the "legal experts" in question. And while it's always nice to be mentioned by name in an article, a non-specific mention in a short blurb can be quite pleasing in its own right.

Finally, thanks to those fans of The Onion's "What Do You Think?" feature for emailing to note that "The Onion doesn't interview the same people every week; it interviews the same pictures. The names are different." Or, as a law clerk for a Sixth Circuit Judge emailed to note, "The Onion uses the same pictures, but not the same occupations. Shouldn't we try to get beyond appearance here?"
Posted at 19:46 by Howard Bashman



For all you fans of personal jurisdiction based on operation of a Web site: Yes, I mean you, Denise. The opinion that the Third Circuit issued yesterday on the subject is now available online here.
Posted at 16:52 by Howard Bashman



The brand new edition of The Onion asks the person on the street about affirmative action: The question: "President Bush recently urged the Supreme Court to strike down the University of Michigan's affirmative-action program as unconstitutional. What do you think?" The answers are available here. (Yeah, I know it's the same six people every week, but there's something to be said for consistency, right?)
Posted at 16:43 by Howard Bashman



A follow-up to my earlier post entitled "RLUIPA unconstitutional, Virginia-based federal district judge rules": Last night, in a post you can access here, I remarked, "Here's hoping that an electronic version of the opinion becomes available online very soon." Today it has become available online, here, courtesy of Law Professor Eugene Volokh (who received an electronic copy of the opinion from Marty Lederman). Thanks Eugene and Marty!
Posted at 16:35 by Howard Bashman



Fourth Circuit asks Supreme Court of Virginia to determine meaning of Virginia statute criminalizing online porn that "is harmful to juveniles": You can access today's order of the U.S. Court of Appeals for the Fourth Circuit certifying questions to the Supreme Court of Virginia at this link.
Posted at 15:23 by Howard Bashman



Second Circuit affirms dismissal of judicial law clerk's wrongful termination federal civil rights suit against New York State trial court judge: You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link. The law clerk's suit alleged that the trial judge had violated the law clerk's First and Fourteenth Amendment rights in firing the law clerk. As today's opinion correctly explains, "at the very minimum, a respectful, if not congenial, relationship between clerk and judge is a prerequisite to a productive work environment within a judge's chambers."
Posted at 14:43 by Howard Bashman



"Sentence Upheld in Death of Unborn Baby": The Associated Press has this report from South Carolina, and this morning's edition of The State contains an article that begins, "A sharply divided S.C. Supreme Court on Monday upheld the conviction of an Horry County woman charged with killing her fetus by using cocaine." You can access here the ruling of the Supreme Court of South Carolina. Finally, the blog TalkLeft offers a sympathetic view of the defendant's plight in a post you can access here.
Posted at 13:01 by Howard Bashman



"Teen Sniper Suspect's Trial Set for Nov.": The Associated Press offers this report.
Posted at 12:48 by Howard Bashman



Two questions: My monthly appellate column to be published in The Legal Intelligencer on February 10, 2003 will address what distinguishes the most useful appellate court Web sites from the least useful. My thinking about the column, which I will be writing at some point this weekend, has caused me to have two questions for my readers.

Question one: Do you know of any exceptionally good state appellate court Web sites? While I modestly claim more than a passing familiarity with the Web sites of this Nation's federal appellate courts, I can't say that I've visited every (or even nearly every) state appellate court Web site. Accordingly, if you know of a state appellate court Web site that you view as exceptionally good, please send me a link to the Web site via email.

Question two: Am I omitting any important items from my list of the basic features that an appellate court Web site should offer? Here's my current list: access to opinions, nicely printed in PDF format; access to the appellate court's rules of practice and procedure; access to oral argument calendars; access to a list of judges serving on the court, providing some information about them; access to the docket entries of cases on appeal; access to appellate briefs; and access to transcripts or audio of oral arguments. Of course, that's just a list of basic features. I also have in mind a list of special features (isn't that special?) that are also nice to have available. If you have thoughts to share along these lines, you too are invited to email them to me.

And speaking of email, there's a free and easy sign-up available here to receive via email from me my monthly appellate column in PDF format on the day of its publication on the second Monday of each month in The Legal Intelligencer.
Posted at 11:52 by Howard Bashman



"Attorney general hires abortion protest leader": This news from Kansas (via The Kansas City Star) is bound to raise some eyebrows.
Posted at 11:16 by Howard Bashman



"Your home is your castle -- right down to the heat that leaks out of it": The Globe and Mail of Toronto today reports here that "Court rejects infrared drug search." You can access the ruling of the Court of Appeal for Ontario at this link. The Canadian court notes that its decision is in accord with the U.S. Supreme Court's ruling in June 2000 in Kyllo v. United States, a ruling that Law Professor Eugene Volokh discussed not too long ago in an essay published at Slate. Thanks much to the reader who emailed a link to the Globe and Mail article.
Posted at 11:05 by Howard Bashman



Maybe I am card-carrying after all: Also in yesterday's mail was confirmation of my year-end membership renewal in The Federalist Society. And enclosed was my membership card, which may require a slight amendment to this post from earlier this month.

Relatedly, I received the following email from a reader who greatly overestimates my powers:
Hey - I have been trying to get the Federalist Society to add a women's shirt for my best law buddy since they came out with their little store [you know, i don't really know how i attract the conservative crowd]. No luck from just a little peon like me (but they did add kiddie shirts). Do you think you could use your influence to get them to do it? I don't know if they are morally opposed to women's shirts or what, but on small women, big shirts look stupid (or perhaps they think only unfashionable women are interested ... hmm). I'm not sure if that is their goal or not, but I would **so** like to get her one! It's not like I'm requesting they emblazon Madison on a thong!
Relatedly, don't overlook Denise Howell's recent post observing that "Kevin ha[s] emblazoned the constitution on The Classic Thong!" In case anyone is concerned, this concludes my thong-related reportage for calendar year 2003.
Posted at 10:42 by Howard Bashman



And let's not forget page two: Unless, that is, you don't want to know about yesterday's rather sneaky grant of certiorari by the U.S. Supreme Court. "Sneaky?" you ask. Well, the grant was left off of the Court's main order list issued yesterday, which is where one would normally expect it to be, and instead was tacked on as page two behind the order adopting the Court's revised rules of procedure. SCOTUSblog details here the questions presented in this action brought by a federal prisoner.
Posted at 08:55 by Howard Bashman



"I suspect it's going to be a miserable, wretched job": Did Senator Orrin G. Hatch (R-UT) really say that about serving once again as chairman of the Senate Judiciary Committee? The answer is available here in an article found online at crosswalk.com.
Posted at 08:44 by Howard Bashman



Bob Egelko has a little Barbie fun of his own: "Forget about Barrister Barbie, or Barbie Takes the Bar Exam. The supreme symbol of American girlhood won't be appearing, even by proxy, before the U.S. Supreme Court." You can access Egelko's complete article here in today's edition of The San Francisco Chronicle. At least Egelko only has to wait until July 2, 2003 for the official opening of "Legally Blonde 2."
Posted at 07:34 by Howard Bashman



In federal judicial nomination and confirmation news from here and there: You can access here an article from today's edition of The Dallas Morning News entitled "For Owen, is second time a charm? Her odds may be better as Democrats target other judicial nominee." HispanicBusiness.com reprints an article by Joan Biskupic entitled "Conservatives Want Bush Aide Kept Off Court." Cybercast News Service reports here that "Liberal Groups Unite against Bush Judicial Nominees." And in news from Ohio, this article reports that "Activists Protest Ohio Judicial Nominees," while you can access here an article entitled "Ohio's 6th Circuit nominees expected to draw fire."
Posted at 07:10 by Howard Bashman



Elsewhere in Tuesday's newspapers: In The Boston Globe, Lyle Denniston reports here that "High court sides with NextWave" and here that "Justices deny Mattel appeal on Barbie song." This article reports that "Jurors must reveal race, ethnicity, SJC rules." In news concerning the convicted shoe bomber, you can access here an article entitled "Lawyers for Reid cry foul over tape; Say FAA video on explosion is misleading." And here's an editorial about the death penalty entitled "Dramatic injustice."

In The Los Angeles Times, David G. Savage reports here that "NextWave Wins in Supreme Court; Telecom firm regains licenses to wireless airwaves. Decision is another rebuke for FCC." and here that "Justices Refuse to Hear Mattel's 'Barbie Girl' Lament; Supreme Court rejects the El Segundo firm's claim that the pop song tarnishes its famous toy." The second of those two articles begins, "Will the next addition to the Mattel Inc. doll family be 'Thick-Skinned Barbie?'" In news from California, here's an article entitled "Court Rules Against Freeway Protesters; Police can legally remove demonstrators from overpasses, appellate panel says, if they represent a threat to public safety."

Today's edition of The Washington Times contains an article that begins, "D.C. Delegate Eleanor Holmes Norton said yesterday she opposes the nomination of Miguel Estrada to the D.C. Circuit Court of Appeals, and the Congressional Black Caucus said it is poised to do likewise." An op-ed bears the headline "Death wish: Is Malvo a terrorist?"

Finally for now, USA Today contains an article entitled "Video angers shoe bomber's lawyers; Defense calls tape of explosion 'misleading' and 'inflammatory.'"
Posted at 06:54 by Howard Bashman



In Tuesday's newspapers: In The Washington Post, Charles Lane reports here that "Justices Spurn Case On Juvenile Executions; Action Suggests Five Back Current Law" and here that "FCC Loses Auction Appeal; Supreme Court Rules In Favor of NextWave." An editorial is entitled "Justice Scalia's Lament." The State of Maryland moves closer to an end to its death penalty moratorium, this article reports. And you can access here an article entitled "Antiabortion Proposals Advance in Va.; House Committee Backs Parental Consent Bill, Ban on Late-Term Procedure."

In The New York Times, Linda Greenhouse reports here that "Justices Deny Inmate Appeal in Execution of Juveniles" and here that "Supreme Court Rules F.C.C. Took Licenses Away in Error." In other news relating to the NextWave case, this article reports that "NextWave Victory May Not Prove Too Lucrative." And Adam Clymer has an article entitled "Service Academies Defend Use of Race in Their Admissions Policies."

Finally for now, The Christian Science Monitor contains an op-ed entitled "Diversity: Isn't it everybody's business?" And you can access here an article entitled "Like father, like son? A tale of two Bushes."
Posted at 00:17 by Howard Bashman



Monday, January 27, 2003
The Reporters Committee for Freedom of the Press has a blog: It's entitled "Behind the Homefront," and it provides "A daily chronicle of news in homeland security and military operations affecting newsgathering, access to information and the public's right to know." (Thanks to Tony Mauro for the pointer via email.) In a post you can access here, the blog notes that "THE STAGE HAS BEEN SET FOR SUPREME COURT ACTION on the question of whether the public has a right of access to the terrorism-related immigration proceedings."
Posted at 23:58 by Howard Bashman



U.S. Supreme Court round-up for Monday, January 27, 2003: The Supreme Court of the United States decided only one case today, but that case involved billions and billions of dollars. In FCC v. NextWave Personal Communications Inc., No. 01-653 (U.S. Jan. 27, 2003), the question presented was whether Section 525 of the Bankruptcy Code prevented the FCC from revoking a license held by the debtor in bankruptcy due to the debtor's failure to make timely installment payments owed to the FCC for purchase of the license.

The bankruptcy debtor was the successful bidder for several wireless spectrum licenses, but thereafter encountered financial difficulties that caused the company to go into bankruptcy. Before filing for bankruptcy, the debtor-to-be negotiated a payment plan with the FCC. The FCC took the position that the debtor's licenses had been cancelled automatically when the debtor missed a payment deadline that expired several months after the debtor had filed for bankruptcy. The question that the Court decided today was whether Section 525(a) of the Bankruptcy Code prohibited the FCC from prevailing on its claim that the licenses were automatically cancelled due to a missed payment.

Justice Antonin Scalia wrote the opinion of the Court, in which six other Justices joined in full and in which Justice John Paul Stevens joined in substantial part. Justice Scalia's opinion noted that Section 525(a) provides:
[A] governmental unit may not . . . revoke . . . a license . . . to . .. a person that is .. . a debtor under this title . . . solely because such . . . debtor . . . has not paid a debt that is dischargeable in the case under this title . . . .
Because the FCC's actions literally ran afoul of Section 525(a)'s prohibition, this was quite an easy case in the majority's view.

Justice Stephen G. Breyer was the lone dissenter. His dissenting opinion makes some interesting points:
It is dangerous, however, in any actual case of interpretive difficulty to rely exclusively upon the literal meaning of a statute's words divorced from consideration of the statute's purpose. That is so for a linguistic reason. General terms as used on particular occasions often carry with them implied restrictions as to scope. "Tell all customers that . . ." does not refer to every customer of every business in the world. That is also so for a legal reason. Law as expressed in statutes seeks to regulate human activities in particular ways. Law is tied to life. And a failure to understand how a statutory rule is so tied can undermine the very human activity that the law seeks to benefit. "No vehicles in the park" does not refer to baby strollers or even to tanks used as part of a war memorial.
Later in his dissent, Justice Breyer notes:
This statutory approach is far from novel. Well over a century ago, the Court interpreted a statute that forbade knowing and willful obstruction of the mail as containing an implicit exception permitting a local sheriff to arrest a mail carrier. United States v. Kirby, 7 Wall., at 485–487. Justice Field, writing for the Court, pointed out that centuries earlier the British courts had interpreted a statute making it a felony to break out of prison not to extend to a breakout when the prison is on fire. Id., at 487. And, similarly, the courts of Bologna had interpreted a statute punishing severely "'whoever drew blood in the streets'" not to extend to a surgeon faced with an emergency. Ibid. "[C]ommon sense," wrote Justice Field, "accepts" these rulings. Ibid. So too does common sense suggest that we should interpret the present statute not to extend to revocation efforts that are no more closely related to the statute's objectives than are baby strollers to the "vehicles" forbidden entry into the park.
Despite Justice Breyer's persuasive entreaties to his colleagues to look beyond the plain language of the Bankruptcy Code section at issue in today's ruling to consider its supposedly larger purpose, today the plain language approach to statutory construction -- an approach that I too find most preferable -- convincingly won the day.

Two minor points in closing. The procedural history of today's case, which arose in the Second Circuit but then ended up in the D.C. Circuit (whose judgment the U.S. Supreme Court affirmed today), is quite unusual. And Justice Scalia's majority opinion was only slightly rambunctious in its dismantling of Justice Breyer's dissent, while Justice Breyer was very restrained in his response to the majority's attacks on his positions.

Update: Tony Mauro's article on today's ruling in the NextWave case, plus a summary of some today's other developments at the Court, is available here.
Posted at 23:16 by Howard Bashman



Sharply divided en banc Tenth Circuit, by vote of 6-4, rules that a Kansas appellate court could hold defendants guilty of crime for which they were not charged, tried, or convicted: For many readers of this Web log, today's en banc ruling of the U.S. Court of Appeals for the Tenth Circuit will have to be seen to be believed.

In these consolidated appeals, one habeas corpus petitioner had been convicted of indecent liberties with a child, while the other habeas petitioner had been convicted of rape. Under Kansas law, because the victims of both crimes were close relations of the offenders, the proper criminal charge that should have been brought against both offenders was the charge of aggravated incest. On appeal in the Kansas state court system, appellate courts corrected the error themselves, changing the defendants' convictions in both instances to convictions for aggravated incest. The change actually benefited each offender, because in both instances the sentences for aggravated incest were shorter than the sentences for the crimes for which a jury had convicted them.

The majority opinion began by noting that "Petitioners-appellants Steven D. Beem and Donald H. Henson, Jr. sought habeas corpus relief in federal district court, 28 U.S.C. sec. 2254, arguing that the Kansas state courts violated their federal constitutional rights by sentencing them for aggravated incest -- a crime for which they had never been charged, tried, or convicted." By a vote of 6-4, the en banc court affirmed the federal district court's denials of these petitioners' habeas petitions.

The lead dissenting opinion, in which all four dissenting judges joined, observed:
In the present case, the majority has ignored the Supreme Court's mandate in Cole. Mr. Henson was charged, tried, and convicted of rape, and Mr. Beem was charged, tried, and convicted of indecent liberties with a minor. As the Kansas Court of Appeals in these cases held (based on Carmichael), under Kansas law, both should have been charged, tried, and convicted of aggravated incest. Vacating Mr. Henson's and Mr. Beem's sentences and then sentencing them instead for aggravated incest (because their conduct also violates that statute) clearly violates Petitioners' due process rights because they were never charged, tried, nor convicted of aggravated incest. As this court previously stated, "[w]hat . . . is before us now is the fundamental due process question of whether one can be sentenced for a crime not charged and to which no plea of guilty has been entered. The answer is an unequivocal no." Von Atkinson v. Smith, 575 F.2d 819, 821 (10th Cir. 1978) (applying Cole) (emphasis added).
A separate dissent in which three of the four dissenting judges joined proceeded to note:
Seldom has Justice Holmes' warning that "hard cases make bad law" been more true. We are faced with two defendants who certainly appear to be guilty of something, in all likelihood aggravated incest. They stand, according to the majority, still convicted of another crime, in one case indecent liberties, and in the other rape. (The majority does admit that it is unclear whether the convictions were actually vacated. Opinion at 9.) Both the majority and the concurrence, rightly concerned with the defendants' apparent guilt, struggle to save the convictions. Neither of these efforts, however, can withstand constitutional scrutiny.
This second dissent concludes:
No matter how unsettling the results, we do not have one Constitution for good people and another for bad people. The decision that we write today has to cover not only the obviously unsympathetic defendants we have before us. What we say to these bad people will also apply to other less bad people, and even a few good people. The majority's approach reaches a result that is bound to come back to haunt us until we surely repudiate it in the future.
Finally, a separate concurring opinion in which three of the judges in the majority joined is also worth quoting from:
I fully concur with the result reached by the majority and have no quarrel with its reasoning or the grounds upon which it rests the decision. I write separately only because addressing these appeals on the merits cloaks the arguments with undeserved dignity. This case is not about guilt or innocence; without question, these defendants molested children. It is not about process; both men have enjoyed a full measure. It is about Justice, writ large. It tests systemic resistance to abuse. It exceeds elastic limits.
Given the dissenting opinions' passionate arguments that today's en banc ruling is directly contrary to governing U.S. Supreme Court precedent, and given the very interesting issues this decision raises, I'd wager that this case has a better than average chance of obtaining U.S. Supreme Court review.
Posted at 23:13 by Howard Bashman



Unanimous Tenth Circuit panel sets aside conviction and death sentence imposed by Oklahoma state court but allows defendant's retrial: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit issued an opinion in which the court summarized its holding as follows:
We conclude that petitioner received ineffective assistance of counsel at the guilt and penalty phases of trial, that the prosecution engaged in prejudicial misconduct at both phases of trial, and that the State relied on improper victim impact evidence to support the death penalty. We hold that petitioner is entitled to relief from his capital convictions based, individually, on ineffective assistance of counsel and, cumulatively, on the combined impact of this error and prosecutorial misconduct. We also hold that petitioner is entitled to relief from his death sentences based, individually, on ineffective assistance of counsel and, cumulatively, on the combined impact of all three errors cited immediately above. However, we reject in Part III petitioner's claims that there was insufficient evidence to support his convictions and death sentences. Hence, we recognize that the State may retry and resentence petitioner within a reasonable time without constraint by double jeopardy concerns.
You can access the court's complete ruling at this link.
Posted at 22:46 by Howard Bashman



Recent University of Michigan Law School graduate disagrees with Stuart Taylor Jr.'s column entitled "Racial Preferences: The Real Choice We Face": The law blogger at the new site "Rule 11" offers these thoughts.
Posted at 21:43 by Howard Bashman



News of the newest Justice to join the Supreme Court of Virginia: Today's edition of The Roanoke Times contains an article entitled "Agee will take legislative view to post on state Supreme Court; Two decades have passed since someone with prior legislative experience sat on the state Supreme Court."
Posted at 21:36 by Howard Bashman



And speaking of religion and prison: Today the U.S. Court of Appeals for the Ninth Circuit issued an opinion that begins: "We must decide whether prison officials unconstitutionally infringed an inmate's First Amendment right to the free exercise of religion by requiring him to fill out a standard prison form in order to receive kosher food."

Between the opinion itself -- which seems to imply that the inmate believed that the prison would not have respected his religious dictates even if he had filled out the proper paperwork -- and the fact that the prisoner was represented on appeal by Law Professor Erwin Chemerinsky, I can't help but wonder whether the prisoner's view of this case differs substantially from the view that the Ninth Circuit's opinion adopts. But, since the Ninth Circuit's Web site doesn't provide electronic access to the parties' briefs or to an audiotape of the oral argument the way that some other federal appellate courts' Web sites do, there's no way for me to determine right now how the prisoner's briefs and oral argument tried to frame the facts and issues in this rather odd little case.
Posted at 21:22 by Howard Bashman



RLUIPA unconstitutional, Virginia-based federal district judge rules: Last Thursday, Senior U.S. District Judge James C. Turk of the U.S. District Court for the Western District of Virginia issued a decision that declared unconstitutional the Religious Land Use and Institutionalized Persons Act of 2000. According to an article published last Friday in The Roanoke Times (article not available online):
A federal judge in Roanoke declared unconstitutional a portion of a federal law that he said placed the freedom of religion above other civil rights, an unprecedented challenge that could reach the U.S. Supreme Court.

Senior U.S. District Judge James Turk ruled that the Religious Land Use and Institutionalized Persons Act of 2000 "has the principal or primary effect of advancing religious belief." The law prohibits the government from restricting inmates' freedom of religion unless the government has a compelling reason to do so. Turk wrote that it thus violates the establishment clause of the First Amendment, which has been interpreted to mean that the government cannot promote a certain religion.

"Prison inmates exist in a society of universally limited rights, one that is required by the nature of the institution," Turk wrote. "When Congress acts to lift the limitations on one right while ignoring all others, it abandons a position of neutrality towards these rights, placing its power behind one system of belief."
Unfortunately, Judge Turk's opinion is not yet available online at the district court's Web site. A slight bit more information about the case is available here at the RLUIPA.org Web site, which explains:
On January 23, 2003 Judge Turk issued a 30 page decision in which he declared RLUIPA unconstitutional, and certified the issue of constitutionality for interlocutory appeal to the Fourth U.S. Circuit Court of Appeals. An electronic version of the decision is not yet available. (Madison v. Riter, U.S. District Court for the Western District of Virginia, Case No. 01-CV-596)
Here's hoping that an electronic version of the opinion becomes available online very soon.
Posted at 21:03 by Howard Bashman



Birth announcement: Congratulations to Tom Goldstein and Amy Howe on the birth of their daughter. You can access links to some photos via this post at SCOTUSblog. I thought it was odd that someone was scheduled to join the firm on a Saturday, as this earlier post had presaged.
Posted at 20:58 by Howard Bashman



"Court Won't Reconsider Death Penalty for Teenage Killer": Linda Greenhouse of The New York Times has an article this evening that begins, "The Supreme Court effectively shut the door today on reconsidering, at least in the foreseeable future, its precedents permitting the death penalty to be imposed on those who were 16 or 17 when they committed their capital crimes."
Posted at 19:56 by Howard Bashman



A quick update regarding D.C. Circuit nominee Miguel A. Estrada: In a post that appeared here this past Friday morning, I wrote:
Yesterday saw another exchange of letters between Senator Charles E. Schumer and the Department of Justice concerning the Estrada nomination: Once again, Senator Schumer called on the Department of Justice to release all "documents written by Mr. Miguel Estrada * * * when he was Assistant to the Solicitor General." Once again, the Department of Justice answered "no," pointing out for the umpteenth time, among other things, that "All seven living former Solicitors General" (see this letter), for non-partisan, good government reasons, are opposed to Senator Schumer's request.
You can now access online here the Department of Justice's answer dated January 23, 2003 to the letter that Senator Schumer sent that very same day.
Posted at 17:21 by Howard Bashman



Second Circuit rejects convicted terrorist's plea for sympathy: The U.S. Court of Appeals for the Second Circuit today released a decision that examined "an issue of first impression in the federal courts: whether the terrorism guideline, sec. 3A1.4 of the United States Sentencing Guidelines (the 'Guidelines' or 'U.S.S.G.'), impermissibly double counts by increasing both the offense level and the criminal history category for a felony involving or intending to promote an act of terrorism." The court ruled, "We hold that this double counting is permissible because Congress has the power to prescribe a sentencing formula that accounts for the same factor more than once."

As the Second Circuit's opinion explains, the defendant argued "that because sec. 3A1.4(b) automatically boosts the criminal history to Category VI for a single act of terrorism, a first-time offender with no prior criminal behavior would unfairly receive a sentence roughly equivalent to that of a life-long terrorist." Heartbreaking, isn't it?
Posted at 17:15 by Howard Bashman



When in doubt, figure it out: In the aftermath of posting the first installment of "20 questions for the appellate judge" this past Friday, several readers have written to ask for more details about one answer in particular. Here's a representative question that I received from one of the readers of this blog:
One point in your fascinating question-and-answer session with Judge Smith leaped out at me. Judge Smith says (response to Q 11) that "a new federal statute will require courts of appeals to post unpublished opinions on their web sites by April 2005." I follow this issue rather closely, as you know, but this is the first I have heard of any such requirement, whether imposed by statute or otherwise. Do you know what Judge Smith was referring to?
Fortunately for me, another of this blog's readers was resourceful enough to ferret out the answer, which can be found in Section 205 of The E-Government Act of 2002. You can access the Act here in HTML and here in PDF (in the PDF version Section 205 begins on page 15 of the document).

For those who don't wish to click through to another document, Section 205 provides, in pertinent part:
(a) INDIVIDUAL COURT WEBSITES- The Chief Justice of the United States, the chief judge of each circuit and district and of the Court of Federal Claims, and the chief bankruptcy judge of each district shall cause to be established and maintained, for the court of which the judge is chief justice or judge, a website that contains the following information or links to websites with the following information:

(1) Location and contact information for the courthouse, including the telephone numbers and contact names for the clerk's office and justices' or judges' chambers.

(2) Local rules and standing or general orders of the court.

(3) Individual rules, if in existence, of each justice or judge in that court.

(4) Access to docket information for each case.

(5) Access to the substance of all written opinions issued by the court, regardless of whether such opinions are to be published in the official court reporter, in a text searchable format.

(6) Access to documents filed with the courthouse in electronic form, to the extent provided under subsection (c).

(7) Any other information (including forms in a format that can be downloaded) that the court determines useful to the public.
This aspect of The E-Government Act of 2002 apparently has not yet come to the attention of many people who follow this issue closely, so I'm pleased that I could play a small part in helping word spread among those who wish to be in-the-know.
Posted at 16:28 by Howard Bashman



"Racial Preferences: The Real Choice We Face": Stuart Taylor Jr.'s essay from this week's edition of National Journal is available online here. Meanwhile, a hard copy of that magazine arrived in today's mail. Could it be that all this blogging has finally paid-off in a complimentary subscription to National Journal?

But that wasn't the only goodie in today's mail. A friend with whom I clerked on the Third Circuit has mailed to me a copy of Senior Ninth Circuit Judge John T. Noonan, Jr.'s book, "Narrowing the Nation's Power: The Supreme Court Sides with the States." It is the cutest little volume and is just 156 pages long (excluding endnotes).

Earlier this month, The ABA Journal posted online a roundtable discussion (accessible here) in which Judge Noonan took part entitled "Power to the State: The U.S. Supreme Court continues to focus on state sovereignty at the expense of national power. A federal appeals judge and three law professors examine the trend in this roundtable discussion."
Posted at 15:46 by Howard Bashman



Today's juvenile death penalty-related news: Four votes may be enough to grant certiorari at the U.S. Supreme Court, but it takes five votes to win on the merits. Gina Holland of The Associated Press reminds us of that lesson in her article today entitled "Court Refuses Juvenile Execution Case." And speaking of juveniles facing the death penalty, you can access here an article entitled "Judge Bars Cameras From Malvo Hearings."
Posted at 15:38 by Howard Bashman



"Justices Say F.C.C. Wrongly Seized Wireless Licenses": David Stout of The New York Times has this report.
Posted at 15:30 by Howard Bashman



Are grapes more like nectarines, plums, and peaches, or are they more like mushrooms? Insofar as the First Amendment is concerned, today the U.S. Court of Appeals for the Ninth Circuit ruled that grapes are more like mushrooms. That wouldn't have been my guess if the First Amendment hadn't been involved.

As Circuit Judge Andrew J. Kleinfeld explains in his opinion for the court:
Constitutional law classes will doubtless enjoy the superficially droll question, "why does the Constitution prohibit the government from compelling mushroom growers, but allow government to compel nectarine, peach and plum growers, to pay for generic advertising?"
You can access the complete opinion at this link.
Posted at 13:45 by Howard Bashman



Wow! Circuit Judge Stephen Reinhardt removes cites to Michael A. Bellesiles' works from the Ninth Circuit's Second Amendment ruling: See this order and amended opinion that the Ninth Circuit filed today. Unfortunately for believers in the "individual rights" view of the Second Amendment, the rest of Judge Reinhardt's opinion remains unchanged.
Posted at 13:42 by Howard Bashman



FoxTrot on Eldred: In the words of the reader who emailed this link to me, "It appears that even the cartoonists for the 'funny pages' keep track of the latest decisions."
Posted at 13:29 by Howard Bashman



Revised U.S. Supreme Court rules adopted today and will take effect May 1, 2003: You can access the Court's order adopting the revised rules at this link, and you can access the amendments plus a helpful (but non-binding) explanation of the changes at this link.
Posted at 13:04 by Howard Bashman



Wire service coverage of today's U.S. Supreme Court opinion and orders: Reuters reports here that "Supreme Court Rules for NextWave on Licenses," while The Associated Press reports here that "Justices Rule Government Wrongly Seized Wireless Licenses."

In other news, maybe now the parties will in fact "chill." Reuters reports here that "Supreme Court Rejects Mattel Appeal on Barbie Song," and The AP reports here that "High Court Rejects Barbie 'Bimbo' Case."
Posted at 11:34 by Howard Bashman



En banc Sixth Circuit votes 6-3 to reverse trial court's dismissal of age discrimination claim: You can access today's ruling at this link. Back in April 2001, a three-judge panel of the court had voted 2-1 to affirm the trial court's dismissal of the suit.
Posted at 11:20 by Howard Bashman



The U.S. Supreme Court's NextWave decision is now available online: You can access it via this link. The vote in favor of affirmance was 8-1. As I mentioned below, Justice Antonin Scalia wrote the opinion of the Court. Additionally, Justice John Paul Stevens filed an opinion concurring in part and concurring in the judgment, and Justice Stephen G. Breyer filed a dissenting opinion.

Update: If you would prefer to view or print the decision (the syllabus, majority opinion, concurring opinion, and dissenting opinion) as a single PDF document, you can access it here via the U.S. Supreme Court's Web site.
Posted at 10:28 by Howard Bashman



Today's U.S. Supreme Court order list is now available online: You can access it here. There were no grants of review today. Update: The Court's official order list, in PDF format, is now accessible here.
Posted at 10:24 by Howard Bashman



U.S. Supreme Court today decides FCC v. NextWave Personal Communications Inc.: Justice Antonin Scalia wrote the opinion of the Court, and the judgment has been affirmed. You can access the oral argument transcript here and the merits briefs that the Solicitor General of the United States filed in the case here (opening brief), here (reply brief), and here (supplemental brief).
Posted at 10:17 by Howard Bashman



Elsewhere in Monday's newspapers: The Washington Times reports here that "Panel to take up judicial nominees again this week." And here's an article entitled "Race case set off by liberal professor." The Boston Globe contains an editorial entitled "Questionable judges" and an op-ed about Roe v. Wade entitled "A matter of extremes." Finally, The Los Angeles Times contains a news analysis entitled "Expect Bush to Stay Ambitious."
Posted at 08:47 by Howard Bashman



"Speech that isn't protected": Attorney-commentator Mitchell Sommers has an essay in The Philadelphia Inquirer this morning in which he argues that "A Web site that promises freedom from taxes doesn't have a leg to stand on."
Posted at 08:38 by Howard Bashman



"20 questions for the appellate judge": Anyone who missed the first installment of this Web log's newest feature, posted online this past Friday afternoon, can access the questions and answers here. As of this moment, six monthly interview slots remain open for calendar year 2003. Details on how to become an interviewee are available here.
Posted at 08:31 by Howard Bashman



Which Super Bowl advertisement emerged victorious? USA Today provides the answer, and much more, here and here.
Posted at 08:27 by Howard Bashman



From the February 3, 2003 edition of The New Yorker magazine: Jeffrey Toobin has "Lunch at Martha's," while Michael Specter reports that "An Ex-Con Logs On."
Posted at 06:21 by Howard Bashman



In Monday's newspapers: The Washington Post contains an editorial that calls on the Bush Administration to try Zacarias Moussaoui before a military tribunal, rather than in the Nation's civilian court system. Metro columnist Courtland Milloy has an essay entitled "On Race Issues, Justices Looking The Other Way." Columnist William Raspberry has an op-ed entitled "Affirmative Action: Goal vs. Issue." Turning now to actual news, you can access here an article entitled "For Environmentalists, Victories in the Courts; Groups Turn to Judicial System to Fight Efforts By Bush Administration to Relax Protections." This article reports that "Malvo Case Puts Focus On Judge's Record; Lawyers Praise Roush For Rulings, Attitude." And The Lawyer's Column this week is entitled "Legal Kibitzers See Little Merit in Lawsuit Over Fatty Food at McDonald's."

Monday's edition of The New York Times contains an article entitled "7 Families Sue Administrator of 9/11 Fund." And an editorial bears the headline "Fighting School Resegregation."
Posted at 00:15 by Howard Bashman



Sunday, January 26, 2003
Available online from The Village Voice: Nat Hentoff has an essay entitled "Liberty's Court of Last Resort: Nobody Knows Hamdi's Own Story." And Ward Sutton has a cartoon entitled "Bush Job Approval Rating High Among Dumb Americans."
Posted at 22:30 by Howard Bashman



Tomorrow at the U.S. Supreme Court: The Supreme Court of the United States will issue orders and opinions tomorrow before beginning a recess that will conclude on Monday, February 24, 2003. February 24th also happens to be the next time that the Court will hear oral arguments.

When the Court granted cert. in two cases this past Friday, it filled the remaining two vacancies in its oral argument calendar for this spring. Accordingly, cases in which review is granted from this point on will be held over until the October 2003 Term, with one possible exception. Veteran Court-watchers expect that the Supreme Court will add a day of oral argument this spring to consider the challenge to the McCain-Feingold campaign finance law that is now pending before a three-judge federal district court panel in Washington, DC.
Posted at 15:10 by Howard Bashman



Justice Kennedy and Roe: Received the following email this afternoon from Frank J. Colucci, Assistant Professor of Political Science, Northern Illinois University:
I am finishing my dissertation on Justice Kennedy's jurisprudence--including a chapter on abortion--and am happy to see someone correct the common misnomer about his stance on Roe. (Even Laurence Tribe, after Hill and Stenberg, called Kennedy's vote in Casey an 'optical illusion'.)

Although he supports abortion rights, he rejects the "right to privacy" reading at the basis of Roe in favor of the "reasoned, careful" balance in Hill that you describe. I think this follows from the larger view of liberty that forms the basis of his jurisprudence in other areas (religion, free speech, etc.), an ideal that was signaled in his public statements before coming to the Court. Whether this balance holds together coherently is something I consider in the dissertation.

Thanks again for setting the record straight.
You're welcome. Professor Colucci's email responds to my post last night entitled "Time to answer this question once again," which addressed whether the "central holding" of Roe v. Wade is truly one vote away from being overruled.
Posted at 15:01 by Howard Bashman



Elsewhere in Sunday's newspapers: The Kansas City Star reports here that "Cross-burning case haunts judge's nomination."

The Boston Globe this morning reports that one fewer candidate is in the running to serve as the next Dean of the Harvard Law School.

The Los Angeles Times contains an op-ed entitled "Demographic Changes Upset Affirmative Action." And The Washington Times runs an op-ed by Paul Greenberg that is also on the subject of affirmative action.
Posted at 09:31 by Howard Bashman



In Sunday's newspapers: Sunday's edition of The New York Times contains a Week in Review piece entitled "Your Honor, We Call Our Next Witness: McFrankenstein."

The Washington Post contains an op-ed by George F. Will entitled "Wolverine Diversity." And the Post's ombudsperson takes a look at "Rice, Race and Reporters."
Posted at 00:52 by Howard Bashman



"Democrats don't have the constitution for racial equality": Ann Coulter has some characteristically provocative views about the University of Michigan racial preferences in student admissions cases.
Posted at 00:42 by Howard Bashman



Saturday, January 25, 2003
Time to answer this question once again: The following email arrived today (from Noah Snyder of the "Deadly Mantis" blog):
Several recent articles, including the Newsweek web exclusive which you linked to, have made the claim that: "Reversing Roe requires only one more anti-choice justice on the Supreme Court." The other day I was looking at the Casey opinion and the majority opinion for that was signed by O'Connor, Kennedy, Souter with Stevens mostly concurring. With the two Clinton appointments since then it seems that the current court is split 6-3 on Roe, not 5-4 as this and many articles seem to claim. Is there some reason Kennedy or O'Connor is thought to have changed views on this issue? Or are all these articles making a simple counting mistake (which I admit seems unlikely)?
Noah, I'm with you 100 percent on this one. The U.S. Supreme Court's current membership has voted 6-3 to uphold Roe v. Wade's "central holding."

In Planned Parenthood of Southeastern Pennsylvania v. Casey (U.S. 1992), Justices Harry A. Blackmun, John Paul Stevens, Sandra Day O'Connor, Anthony M. Kennedy, and David H. Souter voted to uphold Roe v. Wade's "central holding," while Chief Justice William H. Rehnquist and Justices Byron R. White, Antonin Scalia, and Clarence Thomas dissented. When Justice White retired in 1993, he was replaced by Justice Ruth Bader Ginsburg, who has since consistently voted to uphold Roe v. Wade. After Justice Blackmun retired in 1994, he was replaced by Justice Stephen G. Breyer, who has also since voted in favor of protecting a woman's right to abortion. Thus, the 5-4 vote that existed in 1992 in favor of retaining Roe v. Wade's central holding has since become a 6-3 vote. Justices Stevens, O'Connor, Kennedy, Souter, Ginsburg, and Breyer are the six, and Chief Justice Rehnquist and Justices Scalia and Thomas are the three.

There are at least two possible reasons why the press commonly reports that the margin in favor of abortion rights on the Court is only 5-4. First, pro-abortion rights advocacy groups regularly overstate the danger that Roe v. Wade will be overruled, and such groups probably find that it is in their interest to do so. Second, two U.S. Supreme Court rulings from 2000 have caused some to question the reliability of Justice Kennedy's vote. Those two decisions are Stenberg v. Carhart (U.S. 2000) (striking down Nebraska's ban on "partial birth" abortions by a 5-4 vote, with Justice Kennedy among the dissenters and with Justices Ginsburg and Breyer in the majority), and Hill v. Colorado (U.S. 2000) (upholding by a 6-3 vote a Colorado statute that prohibited anti-abortion protesters from approaching clients of abortion services providers, with Justice Kennedy among the dissenters). The conclusion to Justice Kennedy's dissent in Hill v. Colorado contained the following paragraph:
The Court now strikes at the heart of the reasoned, careful balance I had believed was the basis for the joint opinion in Casey. The vital principle of the opinion was that in defined instances the woman's decision whether to abort her child was in its essence a moral one, a choice the State could not dictate. Foreclosed from using the machinery of government to ban abortions in early term, those who oppose it are remitted to debate the issue in its moral dimensions. In a cruel way, the Court today turns its back on that balance. It in effect tells us the moral debate is not so important after all and can be conducted just as well through a bullhorn from an 8-foot distance as it can through a peaceful, face-to-face exchange of a leaflet. The lack of care with which the Court sustains the Colorado statute reflects a most troubling abdication of our responsibility to enforce the First Amendment.
While Justice Kennedy's dissents in these two recent cases suggest that he is not the Court's most enthusiastic supporter of a woman's right to choose an abortion, there is no clear indication that if given the chance today he would renounce his vote in Casey, which affirmed Roe's "central holding." For these reasons, I simply cannot agree with those in the press who contend that "reversing Roe requires only one more anti-choice justice on the Supreme Court."
Posted at 19:55 by Howard Bashman



"Privacy of Rape Victims Clashes With Trial Rights": Adam Liptak has this report in tomorrow's edition of The New York Times.
Posted at 18:55 by Howard Bashman



Some federal judicial nomination and confirmation news from here and there: Today's edition of The Clarion-Ledger contains an article entitled "Pickering: Give my dad fair hearing." The Dayton Daily News contains this article from The Associated Press entitled "Disabled, civil rights groups organize campaign against Ohio nominee." Today's edition of The Honolulu Advertiser contains an article that begins, "The American Bar Association has determined that Frederick 'Fritz' Rohlfing III is not qualified to serve as a judge for U.S. District Court in Hawai'i — a finding that could complicate his confirmation by the U.S. Senate." Finally, Newsday yesterday contained an article entitled "Hatch Hopes To Fast-Track Judge Picks; Sets brisk agenda for committee."
Posted at 15:30 by Howard Bashman



In a Newsweek "Web exclusive": Eleanor Clift has an essay dated yesterday entitled "The Future of Roe v. Wade: Thirty years later the court ruling is safe--for now. How the president wants it both ways." Thanks much to the reader who emailed to draw this to my attention.
Posted at 15:14 by Howard Bashman



Another federal appellate judge has volunteered to take part in this Web log's newest feature, "20 questions for the appellate judge": As a result, only six more interview slots remain open for calendar year 2003. The next federal or state appellate judge to volunteer will receive his or her 20 questions from me in mid-June 2003, with the inteview to appear here in early July 2003. More details are available at this link.
Posted at 13:17 by Howard Bashman



This evening on C-SPAN's "America and the Courts": C-SPAN's consistently fine program "America and the Courts" looks to be of particular interest tonight. According to the synopsis of tonight's program available on the public affairs network's Web site:
Chief Justice Roy Moore of Alabama gave a speech on religion and government at Georgetown University on Tuesday, January 21, 2003. Justice Moore is known as the "Ten Commandments Judge" for his stand on placing the Ten Commandments in his courtroom and in the Alabama Judicial Building in Montgomery. Ordered by a federal judge to remove the 5,000-pound monument in the rotunda of the Alabama Judicial Building, Mr. Moore appealed to the U.S. Court of Appeals for the 11th Circuit, based in Atlanta. His case is pending. Chief Justice Moore received an honorary doctorate from the National Clergy Council and the Methodist Episcopal Church USA this week in Washington.

On Wednesday, January 15, 2003 comments were made at the Supreme Court after the Court heard arguments in Nevada Department of Human Resources v. Hibbs. William Hibbs took time off to care for his wife Diane after a 1996 car accident. After losing his job with the state of Nevada, he sued under the 1993 Family and Medical Leave Act. The State of Nevada is seeking immunity from suits brought under the Family and Medical Leave Act. The Court will decide the case by June.
If you miss the program on television, you will be able to watch it over the Internet for the next several weeks, beginning sometime next week, via this link.
Posted at 13:12 by Howard Bashman



Site stats from this past week: On Monday, January 20, 2003 (a federal and state holiday, mind you), this blog received 4,104 visits; on Tuesday, January 21, 2003 -- 6,316 visits; Wednesday, January 22, 2003 -- 7,058 visits; Thursday, January 23, 2003 -- 6,112 visits; and Friday, January 24, 2003 -- 6,608 visits. Thanks, everyone, for visiting.
Posted at 10:20 by Howard Bashman



"The Grudge Match revisited": The LitiGator, a law blogger based in Michigan, weighs in on the logjam affecting nominees to the Sixth Circuit from that State.
Posted at 10:14 by Howard Bashman



In Saturday's newspapers: In The New York Times, Linda Greenhouse reports here that "Justices Take Public Housing Trespass Case." Yale Law School Professor Jack M. Balkin (access his blog here) has an op-ed this morning entitled "A Ruling the G.O.P. Loves to Hate." And the cover story of tomorrow's New York Times Magazine is a lengthy profile written by Bill Keller of George W. Bush; the profile is entitled "Reagan's Son."

The Washington Post this morning reports that "Showdown Over Judicial Picks Looms; Senate Committee Schedules Vote." And Charles Lane has an article entitled "High Court to Review Anti-Drug Policy; Rules Intended to Strictly Control Visitors to Richmond Public Housing Project."

The Los Angeles Times reports here that "Liberal Groups Urge Rejection of Bush Court Choice; Coalition asks Boxer, Feinstein to do all they can to prevent Senate confirmation of the conservative nominee for 9th Circuit bench." David G. Savage has an article entitled "High Court to Consider No-Trespass Policies in Public Housing; Richmond, Va., seeks to keep drug dealers and gangs off nearby streets and sidewalks." This article reports that "Rice Considered a Centrist on Affirmative Action at Stanford; Records show that as provost, the national security advisor supported considering race in hiring but not in the granting of tenure." This report from Illinois is entitled "Sentenced to a Life of Mourning; The family of a woman murdered for her fetus can't understand how the governor of Illinois could have emptied death row." In news concerning former baseball players, this article reports that "FTC Will Appeal Ruling That Exonerated Garvey," while this article is entitled "Baseball Looks Into Rose Situation."

This morning's edition of The Boston Globe contains an article entitled "Abortion foes gather for forum on Roe vs. Wade; Some at BC voice concern over the event." And this op-ed bears the headline "The failures of the death penalty."

Finally for now, The Washington Times reports here that "Court rejects ACLU lawsuit over Ten Commandments." And Clarence Williams has an op-ed entitled "Diversity by other names."
Posted at 09:30 by Howard Bashman



Friday, January 24, 2003
The text of Senator Patrick J. Leahy's statement from today's Senate Judiciary Committee business meeting: It is available online here.
Posted at 23:57 by Howard Bashman



From the February 3, 2003 edition of The New Republic: Peter Beinart has an essay that begins, "The debate over affirmative action, resuscitated last week by the Bush administration's intervention in the University of Michigan case, is a little like the debate over divestment from Israel."
Posted at 23:47 by Howard Bashman



Readers are overjoyed with today's first installment of this Web log's newest feature, "20 questions for the appellate judge": This afternoon, the very first monthly installment of this Web log's newest feature -- "20 questions for the appellate judge" -- debuted here. Since then, I have received a tremendous amount of email singing the praises of my interview of Fifth Circuit Judge Jerry E. Smith. I'd like to think that the thoughtfulness of my questions was at least partially responsible for the very positive reader reactions, but I recognize that the interviewee's responses deserve the vast bulk of the credit.

Shortly after I announced plans for this new monthly feature on January 3, 2003, four appellate judges -- three who serve as U.S. Circuit Judges and one who serves as a Justice on a state court of last resort -- volunteered to take part. Thus, the next interviewee -- a federal appellate judge -- will receive 20 questions from me in mid-February along with my request that answers be forthcoming in time for me to post them on or before the first Monday in March 2003. While you won't learn the next interviewee's identity until then, I already know who it will be, and as with today's interview you won't want to miss it.

Seven interview slots remain open for 2003. The next appellate judge who volunteers will have his or her interview appear in June 2003, and the seventh appellate judge to volunteer will have his or her interview appear in December 2003. After seven more appellate judges volunteer to take part, no additional volunteers will be sought or accepted. So, to state this as plainly as possible, the eighth appellate judge to volunteer will be out of luck, whether he or she happens to work at the U.S. Supreme Court or the Supreme Court of Guam. To volunteer, simply send me an email from your official court email address expressing a willingness to take part, and I will promptly send an email back to you identifying the month you have selected and the date on which you will receive your 20 questions from me. Once I know that I have seven additional volunteers, I will of course add a post to this Web log stating that no additional volunteers are being sought.

Why would an appellate judge volunteer to answer 20 questions here on this Web log? Read today's quite wonderful debut installment of the feature and discover the answer for yourself.
Posted at 23:30 by Howard Bashman



Available online at law.com: Tony Mauro's always wonderful Courtside column is available here. Mauro reports that the U.S. Supreme Court won't be hearing oral arguments on the first Monday in October, 2003 because the Jewish observance of Yom Kippur falls on that date. Mauro also reports that Michael A. Newdow, who single-handedly obtained a Ninth Circuit ruling that prevents public school students from reciting the Pledge of Allegiance because it includes the words "under God," expects that Justice Antonin Scalia will recuse from Newdow's case when it reaches the Supreme Court.

And, speaking of the Ninth Circuit, Jason Hoppin has an article here entitled "Tug-of-War Over 9th Circuit Nominee; Opposition to Kuhl's nomination is mounting -- as is support."
Posted at 22:57 by Howard Bashman



Today's FindLaw columnist: Vikram David Amar, in part one of a two part series, takes a look at the Solicitor General's amicus briefs (available here and here) in the University of Michigan racial preferences in student admissions cases. Meanwhile, Vikram's brother, Akhil Reed Amar, is reported to be on vacation this week. Given the frigid temperatures this week here in the northeast, I hope Akhil has managed to spend his vacation somewhere warm.
Posted at 20:52 by Howard Bashman



"Pickering, Owen to Get Senate Hearings": Once again. The Associated Press has this report.
Posted at 19:40 by Howard Bashman



"S.C. sexual harassment suit might set standard": This article published in The State last Sunday reports on a case now awaiting en banc oral argument before the U.S. Court of Appeals for the Fourth Circuit.
Posted at 17:02 by Howard Bashman



The U.S. Supreme Court's official order list issued today is now available online: You can access it here.
Posted at 16:20 by Howard Bashman



"Supreme Court to Hear Loitering Case": Gina Holland of The Associated Press, apparently no longer on byline strike, has this report. And a reader who is in the know tells me that the other case in which the U.S. Supreme Court granted cert. today involves "a conflict between the 11th and 8th Circuits on the issue of whether sections 85 and 86 of the National Bank Act completely preempt state law usury claims against national banks, thus allowing removal. The Supreme Court has not opined on the important subject of complete preemption since 1987 (Metropolitan Life Ins. Co. v Taylor, 481 U.S. 58 (1987)), so this affords the Court a chance to clarify a very murky but significant area of law."
Posted at 15:45 by Howard Bashman



Fourth Circuit upholds dismissal of claims by Judicial Watch for damages and an injunction based on alleged IRS retaliatory tax audit: You can access today's ruling by a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit at this link. According to today's opinion, Judicial Watch alleged that the tax audit was "intended to punish the organization for its political speech."
Posted at 15:22 by Howard Bashman



SCOTUSblog notes two cases in which the U.S. Supreme Court granted review today: More details available here.
Posted at 15:11 by Howard Bashman



20 Questions for Circuit Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit: "How Appealing" is exceptionally pleased that Circuit Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit has agreed to be the first participant in this Web log's newest feature, "20 Questions for the Appellate Judge."

Judge Smith joined the Fifth Circuit in January 1988 at the age of 41. He attended college and law school at Yale. His chambers are based in Houston, Texas, and the Fifth Circuit has its headquarters in New Orleans.

Questions appear below in italics, and Judge Smith's responses follow in plain text.

1. What are your most favorite and least favorite aspects of being a federal appellate judge?

The most favorite aspect is having the privilege of working closely with the exceptionally high quality of judges we have on our court and with the extremely talented law clerks I have had working for me, and having a great deal of control over my own time, to work at my own pace, in depth, on cases and issues. The least favorite aspect of the job is the huge drag on family income, for a lawyer who was used to working in a prominent, prosperous law firm.

2. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

I don't know whom I would name of all the judges I have ever heard of. But, one who is high on my list is The Honorable Halbert O. Woodward, deceased, the federal district judge (Northern District of Texas) for whom I clerked. He combined incredible horse sense with an impressive work ethic and fairness. Many lawyers have told me he was the best trial judge they ever saw. (And yes, he was a Democrat appointed by his good friend, Lyndon Johnson.)

3. How did you come to the attention of President Ronald Reagan in 1987 to fill a brand new judgeship that then existed on the Fifth Circuit, and do you have positive, negative, or mixed memories of your confirmation process?

I was active in Republican politics and had worked hard for Ronald Reagan's election. A number of my college friends from Yale were well placed in the Reagan Administration. When a vacancy occurred, and the Administration hadn't found the sort of prospect it wanted, these friends asked me whether I would be interested.

There is a funny story connected with that, as reported to me by the Reagan Administration people who knew me, and it shows how the selection of circuit judges differs from selections for the district bench. The Reagan people were meeting with a Texas Senator to discuss how to fill some district court vacancies. They mentioned my name. The Senator said that I was o.k., but the Senator had some other Texas lawyers whom the Senator preferred. Ever observant of Senators' prerogative to pick their own district court nominees, my friends asked, "Well, how about Smith for the Fifth Circuit?" To which, the Senator reportedly replied, "That's fine, the circuit is up to you guys to decide, and Smith is fine." The rest is history, and I got the consolation prize.

I have mixed memories of the confirmation process. I was the longest-pending circuit nominee in the U.S. for calendar 1987. That is because this was a new seat (created in 1984 but never filled), and a Louisiana Senator claimed it for his state. Although stating that he had nothing against me personally, he put a hold on the nomination for several months, promising to block it forever unless the President would nominate someone from Louisiana. That was frustrating. Also, Robert Bork was nominated to the Supreme Court about a month after I was nominated to the Fifth Circuit; Professor Bork's pending confirmation battle interjected a lot of uncertainty into the process. As it turned out, one of the Fifth Circuit judges from Texas tragically died from an asthma attack, and the Administration agreed to shift that vacancy to Louisiana, whereupon the Louisiana Senator promptly released the hold on me, and I was confirmed on a Saturday afternoon, right before adjournment, in mid-December. (It's interesting to compare the time lags then and now. I was pending about six months, and was the longest-waiting nominee in the whole country that calendar year, even with different parties holding the Senate and White House.)

4. If you had to abandon your seat on the Fifth Circuit but in exchange could serve as a judge on any other U.S. Court of Appeals, which one would you choose and why?

The Ninth, I guess (despite my answer to Question 10 below). It would be cool to go to conferences and court sessions in Alaska and Hawaii, not to mention Seattle, San Francisco, and San Diego. Plus, the Ninth Circuit is so different in many important ways from the Fifth. It is much larger, with a different mix of judges and different way of handling cases. The sheer geography of great distance, not to mention the challenge of dealing with the large number of states in the circuit, would be interesting. (My answer here may be influenced by the fact that as I write this on my laptop, I am at a meeting in Phoenix, looking at the beautiful scenery of the Desert Southwest.) But I wouldn't voluntarily trade a Fifth Circuit position for anything. I think it's the most interesting circuit of all, and the best job in the world, with the best judges and staff the federal system has to offer.

5. Some news reports from 2000 listed you as a possible U.S. Supreme Court nominee and mentioned that then-Governor George W. Bush was a friend of yours. How is it that you came to be friends with President Bush?

It is true that President Bush and I were only a year apart at Yale. But, aside from meeting him at some point, I am sorry to say I didn't get to know him personally. I will say that he was well known, as the son of a popular Congressman at a fairly small college, and from what I can remember, he was well liked.

It's interesting how reporters and news writers pick up ideas like this (my supposed friendship with the President) and report them as fact; I'm sure it was an honest mistake, but it would be interesting to know how it occurred. I enjoyed working with the Bush family in the 1980 General Election campaign, in which I was one of the Houston area co-chairmen for Reagan/Bush, but even then I didn't have a real chance to get to know anyone really well. (I will add that, in addition to being on the same campus with now-President Bush, I was fortunate enough also to be an undergraduate or law student with (in no particular order) Bill Clinton, Hillary Rodham, Clarence Thomas, George Pataki, J. Harvie Wilkinson, and many other talented persons who, to say the least, have made their mark. Several of my law school classmates are Article III judges.)

6. I've never spent any significant time in either Houston, Texas or New Orleans, Louisiana. Please recommend two restaurants that one shouldn't miss in Houston and two things to do or places to see there, and, while you're at it, please also recommend two restaurants worth a visit in New Orleans.

This is the toughest question on the list. I don't often go to the famous restaurants in Houston, so I'll punt on that category. I also think it might be improper for a judge publicly to endorse a particular commercial establishment, so I should refrain from mentioning any specific places in Houston or New Orleans. Visitors to Houston should spend a day in Galveston, and should visit the Johnson Space Center. In February of each year, don't miss the Houston Livestock Show & Rodeo for an unforgettable cultural experience.

7. After attending college and law school at Yale, you returned to Texas to accept a judicial clerkship with Judge Halbert O. Woodward of the U.S. District Court for the Northern District of Texas. What strategy did you employ in seeking a judicial clerkship, and how did you come to accept this one?

As is true with so many law students today, I was dumb enough just to haul off and write to a bunch of circuit judges in places where I thought I would like to spend a year. I didn't do any research into the particular judges. They all turned me down. I had already sent an application to Judge Woodward, because he was the federal judge in my hometown of Lubbock. He knew my family, and asked me to interview over the Christmas break, and offered me a clerkship, which was a thrill for me, and I readily accepted. It was a fabulous experience, and I have never regretted it. (District and appellate clerkships, although very different, are equally valuable for those who want to litigate.)

8. Several of your law clerks have gone on to clerk at the U.S. Supreme Court. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates whom you wish were applying but haven't been?

I get splendid applicants, a good sampling of the best talent in the country, mostly from the top schools, so I can't imagine that could get any better. The main credential is just plain "smarts," because it's very hard work. People without the intelligence level to do the work would be very frustrated. Because I have a very close working relationship with my clerks, personality and compatibility are also important. A good work ethic helps, because the work load is pretty steep, though far from impossible. Although I don't have any litmus tests, being against the Designated Hitter Rule is a plus.

9. Why have you decided not to adhere to the "Law Clerk Hiring Plan" that supposedly has the overwhelming support of federal appellate judges, and has your decision made it easier or more difficult to attract the sort of law clerks that you are seeking?

The current hiring plan, proposed by a group of resourceful, well-intentioned judges, will fail, sooner or later, because a "one size fits all" scheme isn't suited to the diverse body of federal judges in the various circuits. When the system collapses, the judges will find themselves scurrying around to hire two sets of clerks in one year; that will be chaotic, and some very well qualified law students will find themselves out in the cold.

There was never a formal vote of the judges to adopt any plan, but only a survey to find out whether there was enough inertia that a critical mass of judges would agree "not to oppose" the plan if it were tried. Already, a number of judges are receiving applications, and professors from many schools, including a few from some of the top schools, are sending letters. (I don't know how much hiring there will be this school year, however, because of the uncertainties generated by the plan. I have not interviewed or hired anyone yet for 2004-05.)

Any plan with tightly defined deadlines benefits mostly the judges in the I-95 corridor between Boston and Richmond, where students can schedule a large number of interviews in a compacted period of time. A system without deadlines is the best market, because it recognizes the geographical and personal differences among judges, law schools, and students, and affords the greatest opportunity for judges and applicants to evaluate each other.

The drafters of the proposed plan candidly recognize their failure to eliminate the very worst element of the present law clerk hiring system, which is the "exploding offer," whereby an applicant is given no time, or only a day or so, to accept a judge's offer. I don't give exploding offers, because they are unfair to the applicants. I want anyone applying to me to take whatever time he or she needs to explore other options before deciding to accept my offer. Exploding offers are largely (but not exclusively) a product of judicial ego; there are too many judges who can't stand the thought that an applicant would hesitate before accepting his or her offer. That offensive element of the present system needs to be abolished.

The existence of the proposed plan has substantially affected the pool of applicants so far this year, especially because most of the leading law schools have succeeded in intimidating their students from applying in the second year, mainly by denying faculty recommendations; many students feel they will be blackballed if they dare to apply, even to the judges who are accepting applications. I nonetheless have in the neighborhood of one hundred applications already this year, some from students with stellar credentials, and some from the top ten law schools. Some have been able to obtain recommendation letters, and others have not. (I should add that the proponents of the suggested plan are conscientious judges with whom I have an honest difference of opinion on this subject. I commend them for the extra effort they have made to put together a plan they sincerely believe is an improvement.)

10. Should the U.S. Court of Appeals for the Ninth Circuit be divided into two circuits, and why or why not?

Yes, the Ninth Circuit should be divided. I find that even the Fifth Circuit, with 17 authorized judgeships, is too large for efficient functioning as a collegial body. Probably, about 12 or 13 judges is the ideal number for that. It is too hard to maintain uniformity and predictability in decisionmaking if a court becomes larger than that. It is also next to impossible to be familiar with the district, magistrate, and bankruptcy judges in one's own circuit when the circuit is too large. Geographical distances also need to be considered. Finally, the Ninth Circuit’s practice of having "limited en bancs" of only 11 of the 28 judges is contrary to the very idea of an en banc, which is to obtain a decision by the entire court on the most significant cases. Because judges for the limited en bancs are chosen more or less at random, the results are less predictable, which is not good for the administration of justice.

11. The Fifth Circuit makes it next to impossible to access its non-precedential opinions. They are not available on the court's Web site, they are not available on Westlaw or Lexis, and they are not published in West's Federal Appendix. Why are the Fifth Circuit's non-precedential opinions so difficult to access, and do you support making them more accessible?

This is a pet peeve of mine. The Fifth Circuit's non-precedential opinions are hard to access because those of us who feel otherwise have been unsuccessful in getting a majority of the Fifth Circuit judges to change the policy. In my view, the court should (1) make all opinions precedential, (2) make all opinions available on the court's web site, (3) furnish all opinions to LEXIS, Westlaw, U.S. Law Week, and anyone else who wants them, and (4) place into the Federal Appendix all "unpublished" opinions that don't appear in the Federal Reporter.

There are good-faith differences of opinion on these questions, and I respect the opposing point of view. I conclude, however, that evolving technology makes it easy to furnish all opinions, easily and inexpensively, to the public and the legal community. This is beneficial especially to the small practitioners and the pro se litigants who cannot afford expensive subscriptions or special services. All issued opinions are technically "public" anyway, so our court should not maintain a system that limits their ready availability to only a limited segment of those who may have an interest in what we do.

Eventually, the court's policy will change; it is just a matter of time. I predict it won't take that long, but we'll see. Already, a new federal statute will require courts of appeals to post unpublished opinions on their web sites by April 2005.

12. Is the salary paid to federal appellate judges too low, and if your answer is "yes," what should the salary be or, perhaps less controversially, how would one determine what the proper salary should be?

When I finished clerking for a federal district judge and went to work as an associate at a large firm (Fulbright & Jaworski) paying top dollar in the Houston market, I made, in my first year as a lawyer, one-third of what the district judge was making. Today, law clerks who go to leading firms regularly make, including bonuses, almost as much as (and sometimes even more than) the judge for whom they clerked is making. Something is wrong with this picture.

Judges should not make anywhere near as much as they could make in major law firms. Given, however, that almost all judges are appointed after at least 12, and often 20 or more years of practice, and likely would be well into a firm partnership or would be senior law school faculty, they should make considerably more than the current level of about $160,000 for circuit judges.

The point about higher judicial salaries is not that there aren't plenty of good lawyers willing to take a lifetime job paying $160,000, which is a lot of money. Instead, the salary needs to be high enough to make the pool of willing lawyers large enough that the judiciary attracts and keeps the necessary number of applicants of sufficiently high quality. The public should ask itself, "Would you trust yourself or a loved one to a $160,000-a-year brain surgeon?" I believe most people would say no.

What if, indeed, all brain surgeons were arbitrarily limited to $160,000 per year? Surely, there would be some extremely capable doctors who would answer the call for love of the work, despite the limitation. But, the pool of top-notch aspirants likely would not be large enough, and less-qualified physicians would fill the void. There would still be plenty of brain surgeons, but would they all be good enough that you would trust them with your life? Would enough good new doctors choose brain surgery as a specialty if they saw their colleagues making three or four times as much in other specialties? (I recently heard of a former federal circuit judge who makes $13,000 per day as a mediator.)

13. A lawyer with five years' experience is going to deliver his or her first appellate oral argument in any court before a three-judge panel that includes you. What advice do you have for this lawyer?

Know the record cold. Remember that you're talking to judges, not jurors. Remember the proper standards of review, and don't attempt to re-try the whole case at the appellate panel. Know when to yield ground on less important issues, and be ever candid with the court. Strike a conversational, not hortatory, tone. Go into the argument with the goal not only of winning for your client, but also of helping the court do its job of rendering a respectable decision that will apply reasonably to the world beyond the immediate parties. Don't even think of trying to avoid a judge's question; the judges will always have the last word. Avoid sarcasm, hyperbole, and lofty rhetoric. And finally, don't assume every question is unfriendly; judges can throw home run balls as well as curves.

14. What percentage of appeals with counsel on both sides are argued in the Fifth Circuit, and is that number too high, too low, or just right, and why? How do you decide whether to request oral argument in a case? And how often does oral argument change your views as to the outcome of an appeal?

I don't know the percentage, but it is way less than half, but that is appropriate. The main criterion for argument should be whether argument will assist the court in deciding the case properly. There is no reason to require counsel and the court to spend time and money engaging in argument that won't accomplish that. It is better that the court spend its argument time on the cases in which argument is not just an automatic ritual, but is a means of accomplishing the work of the court.

Most of the judges I have heard discussing argument agree with my estimate that oral argument affects the outcome in about ten percent of the cases. It undoubtedly affects the court's reasoning and the details of the opinion in a significantly greater percentage than that, however.

15. In a span of just over two months in 1996, you issued two blockbuster opinions: Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) (holding that the University of Texas Law School could not use racial preferences in deciding which students to admit); and Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996) (decertifying the largest class action ever attempted in federal court). What single opinion of yours -- majority, concurring, dissenting, or other -- do you find to be the most memorable?

Hopwood.

16. How do you define the term "judicial activism," and is it ever proper for a federal appellate judge to consider his or her personal preference as to the outcome of a case (other than the preference to decide the case correctly in accordance with the law) in deciding how to rule?

Judicial activism could mean many things, but primarily it is the substitution of the court's view for the policymaker's view, in cases where the decision properly should rest with the policymaker, or substituting the court's view for what the Constitution says, where a constitutional provision is at stake. A judge should not consider his or her personal preference as to outcome, any more than an umpire should call balls and strikes based on which team is his or her favorite.

17. If you were placed in charge of selecting nominees for U.S. Court of Appeals vacancies, what qualifications and attributes would you view as important, and why?

I would look for nominees who have both high intellect and good common sense. Complex and close cases require a keen analytical mind, but good judges also need common sense to appreciate how the decisions they make will operate outside the realm of legal theory. They need to have a high work ethic, self-motivated, with a limited ego. I always would be wary of anyone who shows the tendency to abuse power or position. They must be able to work well with others.

18. In 2002, Congress confirmed two additional U.S. Court of Appeals judges who have the last name "Smith." Lavenski R. Smith joined the Eighth Circuit in July 2002, and D. Brooks Smith joined the Third Circuit in August 2002. Aside from suggesting to these new Circuit Judge Smiths that they sign their opinions using their full names, what other advice would you offer to a new federal appellate judge, especially one who has not worked previously as a state or federal court judge.

Always sit with your back to the wall.

19. During your fifteen years on the bench, in what ways, if any, has technology changed how you perform your duties as a federal appellate judge, and what changes do you anticipate technology will bring over the next fifteen years?

When I joined the court, we already had e-mail and computerized legal research. So, the biggest change has been the expanded use of the internet. I predict the biggest change in the next fifteen years will be a migration to paperless litigation based on electronic case filing at every level. There also will be a greater use of remote court proceedings similar to teleconferencing, with judges and participants in widely separate geographical locations. That's not necessarily a good development, but it will happen nonetheless.

20. Other than reading "How Appealing," what do you do for enjoyment and/or relaxation in your spare time?

I don't have the usual specific hobbies, such as golf or gardening, although I do mow my fairly large yard myself. I greatly enjoy my family (wife Mary Jane and children Ruth Ann, Clark, and J.J.), and taking some trips, usually by car, each year. Mary Jane says I never read anything but baseball books, and although that's not quite true, I do enjoy pretty much anything related to that sport. (And in answer to the question I wish you had asked, Pete Rose should not be admitted into the Hall of Fame, ever or under any circumstances. But if the All-Star Game can end in a tie because the players are "tired," I guess anything can happen.)
Posted at 13:50 by Howard Bashman



Summary of what occurred at today's Senate Judiciary Committee business meeting: Available online here, via the page that provided notice of the hearing. The summary indicates that while all but one of the Committee's Republican members were present for the meeting, only three of the Committee's nine Democratic members were in attendance today.
Posted at 13:42 by Howard Bashman



Ninth Circuit on habeas corpus review sets aside death sentence imposed by California state court in 1984: You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 13:34 by Howard Bashman



Two "How Appealing" programming notes: Knowledgeable watchers of the U.S. Supreme Court anticipate that the Court will issue one or more additional grants of review this afternoon. Stay tuned for updates.

In other news, answers arrived today from the first appellate judge who agreed to participate in this Web log's newest feature, "20 questions for the appellate judge." Thus, if my schedule permits, I hope to post the questions and answers on the Web log sometime this afternoon. You won't want to miss it.
Posted at 12:08 by Howard Bashman



D.C. Circuit reverses forum non conveniens dismissal of claims by former resident of Ethiopia, against Ethiopia, for damages inflicted upon leaving Ethiopia: You can access today's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 12:03 by Howard Bashman



Quite a week for nude dancing: The U.S. Court of Appeals for the Eighth Circuit today becomes the third federal appellate court since last Friday to issue a decision involving the regulation of nude dancing. Today's ruling is accessible here; the others can be found below.
Posted at 11:55 by Howard Bashman



News from this morning's Senate Judiciary Committee business meeting: While my efforts to listen to this morning's Senate Judiciary Committee business meeting have been thwarted by a dead audio feed from CapitolHearings.org, apparently Jonathan H. Adler has figured out how to listen in. He has a report on some of this morning's developments here.
Posted at 10:39 by Howard Bashman



Elsewhere in Friday's newspapers: The Los Angeles Times contains an op-ed by Douglas W. Kmiec entitled "Yes to Diversity -- and Fairness; Bush shows the way on college admissions issue." This article reports that "Court Refuses to Reconsider Coastal Commission Ruling." You can access here an article that begins, "Outraged that a prisoner received a taxpayer-funded heart transplant and later died, a state senator wants to give Californians the option of designating that their donated organs not go to patients behind bars." Rod Paige, the U.S. Secretary of Education, mentions the University of Michigan cases in this short op-ed. And you can access here letters to the editor published under the heading "Feminists Have Diverse Views on Abortion."

Today's edition of The Detroit News reports here that "Answer to affirmative action falters in Texas; Despite '10% plan,' college minority enrollment still small." You can access here an article entitled "U-M: Texas plan won't work; State's racial pattern, outstate enrollment would scuttle it." And here's an account of "Four students' stories."

The Boston Globe contains an article entitled "Past 'quota' views shadow 2 Democrats." And lawyers for the defendant in a death penalty prosecution pending in a federal court in Boston are asserting new reasons why the federal death penalty is unconstitutional, this article reports.

Finally, Mona Charen has an op-ed entitled "Affirmative action fog index" in today's edition of The Washington Times, and USA Today rounds-up here editorials and op-eds from other newspapers on the thirtieth anniversary of Roe v. Wade.
Posted at 09:52 by Howard Bashman



Yesterday saw another exchange of letters between Senator Charles E. Schumer and the Department of Justice concerning the Estrada nomination: Once again, Senator Schumer called on the Department of Justice to release all "documents written by Mr. Miguel Estrada * * * when he was Assistant to the Solicitor General." Once again, the Department of Justice answered "no," pointing out for the umpteenth time, among other things, that "All seven living former Solicitors General" (see this letter), for non-partisan, good government reasons, are opposed to Senator Schumer's request.
Posted at 09:38 by Howard Bashman



"Judge Lets 10 Commandments Display Stay": The Associated Press has this report on a Kentucky-based federal district judge's ruling issued Wednesday.
Posted at 09:01 by Howard Bashman



"Hatch Plans to Change Judgeship Policy": This news, from The Associated Press, does not appear to solve the logjam blocking four nominees to the U.S. Court of Appeals for the Sixth Circuit who reside in the State of Michigan. As I understand it, the two U.S. Senators from Michigan, Democratic Senators Carl Levin and Debbie Stabenow, are not blocking these nominees on the merits but rather as payback for some slight, real or perceived, that occurred back when Bill Clinton occupied the White House. How, if at all, can this logjam be resolved?
Posted at 08:51 by Howard Bashman



In news from South Carolina: The State reports here that "Bill creates 'Choose Death' slogan for license tag" and here that "Thurmond home after 48 years in Washington."
Posted at 08:33 by Howard Bashman



Listen to this morning's Senate Judiciary Committee business meeting via CapitolHearings.org: The Web site CapitolHearings.org, a C-SPAN affiliate, is scheduled to broadcast live the audio feed of this morning's Senate Judiciary Committee business meeting. The site provides the following description of today's agenda:
Business meeting to consider the nomination of Miguel A. Estrada, of Virginia, to be United States Circuit Judge for the District of Columbia Circuit, and S.151, to amend title 18, United States Code, with respect to the sexual exploitation of children.
Last night, in a blog post you can access here, I set forth my hopes about this morning's business meeting.
Posted at 08:25 by Howard Bashman



In Friday's newspapers: The New York Times reports here that "Bush's Backing, Though Still Strong, Shows Steady Decline." An editorial about the case of alleged enemy combatant and dirty-bomber Jose Padilla is entitled "The Right to Counsel." On the op-ed page, William F. Buckley Jr. has an essay entitled "Civil Rights for Old Boys," and Nicholas D. Kristof has an essay entitled "A Boy and His Benefits."

The Washington Post contains a front page article entitled "Changes To Title IX Considered; Proposal Would Allow Scholarship Limits." And Lloyd Grove here quotes Solicitor General Theodore B. Olson as stating, during a recent reception in honor of someone's book publication, that "There are five justices of the Supreme Court in the room. Maybe I'll ask them to grant a few cert petitions."

Finally for now, OpinionJournal contains an essay entitled "Failure Starts Young; A school is for: a) diversity; b) learning to read?"
Posted at 00:08 by Howard Bashman



Thursday, January 23, 2003
"More Law Clerk Praise": An email bearing that title arrived this evening. It goes on to state:
I clerk on the 11th Cir. and I just wanted to echo the sentiments of the clerks from the 6th Cir. I was turned on to your blog (by a fellow clerk) a couple of weeks ago and I'm hopelessly hooked. Your blog is a great way for us to keep current on what's going on out there in the world of appellate law. My method for keeping the bench memos rolling is to regulate my blog checking -- once in the morning, once after lunch, and once before I leave (ok, so sometimes I cheat). Anyway, keep up the good work.
Thanks for those kind words. It's like the motto of Philadelphia's news radio station, KYW 1060 -- "Be sure to check in two, three, four times a day."
Posted at 23:38 by Howard Bashman



ABA Journal in-depth article on law bloggers to be published in March 2003 issue: You heard it here first, so it's never to soon to reserve your copy. In fact, though, all you need to do is join (or, in my case, re-join) the American Bar Association. The ABA Journal will feature several of your favorite law bloggers (including me; um, at least I hope I'm one of your favorites). Plus, it will also include photos -- and one of the featured bloggers is in fact quite a looker (and no, this time I'm not necessarily talking about me). While you're at it, you could also sign-up for the ABA's The Council of Appellate Lawyers. (The sentiment expressed in the immediately preceding sentence was brought to you at the request of George T. Patton, Jr., Esquire, Immediate Past Chair of the Council.)
Posted at 23:30 by Howard Bashman



Available online at law.com: You can access here an article entitled "'Nike' Ruling: Just How Chilling Is It? An answer may have to come from Washington." And Jonathan Ringel has an article entitled "Georgia Governor Faces Redistrict Quandary; Will he pull plug on state appeal to U.S. Supreme Court?"
Posted at 22:23 by Howard Bashman



Big news -- "Sen. Hatch Eyes Changing Judiciary Policy": The Associated Press tonight offers this report.
Posted at 22:06 by Howard Bashman



It may not be The Federalist Society, but it does attract some interesting speakers: A FindLaw guest columnist whose essay there I recently unfairly characterized emailed today to ask that I point out that the D.C. Lawyers Chapter of the American Constitution Society is sponsoring an event on Tuesday, February 4, 2003 at which D.C. Circuit Judge David S. Tatel will be speaking on “Lawyering in the Era of Judicial Activism.” According to the email I received, "Judge Tatel will be discussing his views on judicial activism, judicial restraint, and how lawyers can contribute to the current debate over the proper scope of judicial powers." More details on this event are available here.

While I'm a proud (but not card-carrying) member of The Federalist Society, I must admit that the ACS is attracting some very interesting speakers. Earlier this month Slate Senior Editor and U.S. Supreme Court correspondent Dahlia Lithwick spoke at a luncheon gathering. Dahlia's number one fan has a full report here.

And on April 22, 2003 at Yale, Ninth Circuit Judges Stephen Reinhardt and Alex Kozinski will engage in an ACS sponsored debate. I can see it now -- "You tried to steal my Lamborghini!"; "Did not!"; "Did too!" (More details on the basis for this exchange are available here.)
Posted at 21:36 by Howard Bashman



Some very nice feedback from two Sixth Circuit law clerks: Today I received the following email from someone who is currently clerking for a judge on the U.S. Court of Appeals for the Sixth Circuit:
As a current Sixth Circuit clerk and a devoted How Appealing reader (who isn't?), I wanted to let you know the following:

I have been unable to churn out bench memos and opinions at the necessary speed recently due to my addiction to How Appealing, among other blogs. Accordingly, I instituted my first "Bashman-deprivation day" the past two days. It had remarkable results; the wheels of justice resumed their spinning, and I am now caught up with my work. Of course, I have spent all of today reading the last three days of How Appealing...

Thanks for maintaining your blog. Even our judge reads it on occasion...
This reminds me of a passage from an email I received early this month from a law clerk to a different Sixth Circuit judge: "And please continue to contribute to the superficial -- I mean, elegant -- brevity of our bench memos by writing your blog!" With all the paperwork that federal appellate judges are forced to wade through these days, a little elegant brevity never hurts.
Posted at 21:18 by Howard Bashman



Notice of tomorrow's Senate Judiciary Committee business meeting: Tomorrow morning at 9:30 a.m., the Senate Judiciary Committee will hold its first official meeting of 2003. The main item on tomorrow's agenda is the Committee's vote on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit.

Now that Republicans hold a majority in both the U.S. Senate and, therefore, on the Judiciary Committee, it is inconceivable that the Senate would vote to do anything other than confirm Estrada. Indeed, the full Senate last year would have confirmed Estrada, if only the Judiciary Committee -- then in Democratic hands -- had allowed his nomination to reach a floor vote.

There has been talk that the Democrats on the Judiciary Committee tomorrow will invoke their prerogative to postpone the Committee's vote on Estrada's nomination for one week. I, for one, certainly hope that the Democrats reconsider and choose not to engage in such a pointless procedural tactic. The voters last November elected a Republican majority to the U.S. Senate. Part of the reason why was a dissatisfaction with the obstructionist tactics Democrats were using to block President Bush's judicial nominees.

I count myself as one of Estrada's earliest supporters (see the very end of my June 2001 appellate column), and the only thing that makes me feel even worse than I feel about the way his nomination has been obstructed is that four other highly qualified nominees who were first nominated with Estrada to fill U.S. Court of Appeals vacancies on May 9, 2001 are still waiting to receive a hearing from the Judiciary Committee. Their wait too will soon be over.

But what good could conceivably come to the Democrats or the Nation in making Estrada endure one more week before he clears the Committee? I certainly can't think of any. On the other hand, if the Democrats allow the vote to go forward tomorrow, that would at least allow the year to get off to a non-acrimonious start and would indicate that the Democrats will only resort to invoking all available procedural maneuvers in opposition to those nominations against which they have a legitimate grievance.
Posted at 20:41 by Howard Bashman



Blame Justice Scalia? That's what cartoonist Ruben Bolling does in today's installment of Tom the Dancing Bug, which criticizes the Eldred v. Ashcroft ruling. Of course, regardless of one's views of the merits of that ruling, since the decision was 7-2, perhaps Justice Scalia shouldn't shoulder all the blame.
Posted at 17:30 by Howard Bashman



The problem with "law made simple for the masses": At GlennReynolds.com today, Glenn writes:
A few writers suggested that I had to be wrong, because if I were right the federal government couldn't outlaw murder. But, in fact, the federal government doesn't outlaw murder as such. When people are prosecuted for "murder" in the federal system, it's not the general crime of murder, because there is no general federal murder statute. Those prosecutions are for killing someone while in the course of violating some other federal law that is within federal jurisdiction (piracy, for example, or various interstate crimes that fall under the commerce power).
But Glenn's assertion entirely overlooks 18 U.S.C. sec. 1111, which does make murder a federal crime when committed "Within the special maritime and territorial jurisdiction of the United States" even though the murder is not committed "while in the course of violating some other federal law that is within federal jurisdiction."

As explained here in a U.S. Department of Justice document, "The term 'special maritime and territorial jurisdiction of the United States' is defined in eight subsections of 18 U.S.C. sec. 7. These subsections relate to maritime jurisdiction; lands and buildings; Guano Islands; aircraft; spacecraft; places outside the jurisdiction of any nation; and foreign vessels en route to and from the United States."

So, for example, if you commit murder on federal parkland, you can be assured that the federal government will be entitled to prosecute you under federal law for committing the "general crime of murder." (And for fans of the always very popular Guano Islands, who can forget my post last month on that very subject.)

Update: A reader who works at the U.S. Department of Justice emails:
Glenn ignored several other federal murder statutes, including:

18 U.S.C. 2332 (killing a US national outside the US)

18 U.S.C. 2332b (killing within the US where the conduct transcends national boundaries).

In neither provision is the murder charge tied to some other federal offense.

Note, re 2332b, that although the name of the section is "acts of terrorism transcending national boundaries," in fact the statute is not limited to terrorism.
A journalist who reports on the law from California has emailed to say:
You are absolutely correct that certain jurisdictions have ("strict"?) murder laws. In the main, those are where there is no state jurisdiction. Now ... wouldn't one of those places be Washington, D.C., as well? I'm reminded of Robert Mueller III, the current FBI Director and former US attorney in San Francisco. A few years ago he was looking for something else to do, having worked in Main Justice and a US attorney in Massachusetts. (Law firm life didn't sit well with him.) He took a job in the D.C. US attorney's office, where he headed up the homicide detail -- probably the only homicide office in any US attorney's office anywhere. He supposedly took great delight in answering the phone: "Mueller, homicide."
Finally, Glenn Reynolds himself emailed to say:
Well, I actually thought about the special jurisdiction issues (I do space, after all, and our legal clinic defends some stuff in the Smoky Mountains natl park.) But I would regard the examples you give as not falling within my statement, though I admit it could have been clearer at the cost of being longer and more confusing.
And that, of course, is the very point I intended to make when assigning a title to this post.
Posted at 17:09 by Howard Bashman



"Judge To Fat Plaintiffs: Where's The Beef?": For those who haven't yet had their fill of puns concerning yesterday's ruling of the U.S. District Court for the Southern District of New York, Forbes.com offers this report.
Posted at 16:42 by Howard Bashman



What political party are you from? A long-time reader who is currently clerking at the U.S. Supreme Court emailed early this morning, apropos of my recent mentions of the U.S. Court of International Trade, to remind me of the federal statute governing the appointment and number of judges on that court. The statute provides, in subsection (a):
The President shall appoint, by and with the advice and consent of the Senate, nine judges who shall constitute a court of record to be known as the United States Court of International Trade. Not more than five of such judges shall be from the same political party. The court is a court established under article III of the Constitution of the United States. [emphasis added]
The reader's email asked, "Could a Democratic member of the CIT change his party affiliation and stop the current President from being able to appoint a Republican judge?" I'm even more curious to know what, if anything, would prevent someone whom the President intended to nominate from changing her party affiliation as necessary to qualify for appointment to the court?

Update: Reader email is beginning to arrive. One reader who clerked at the U.S. Supreme Court over ten years ago and is currently in private practice writes:
Interesting academic questions, considering that there is no judicial way to enforce the statutory limitation. Not unlike 28 U.S.C. s 458, which still somehow managed to accommodate a mother and son team in the 9th Circuit and two brothers in the 8th.
Another reader emails to observe:
Perhaps I'm nit picking, but the statute doesn't actually say that no more than five may belong to a certain party. It says no more than five may be FROM the same party. Could that possibly mean that the party that holds the White House may appoint no more than five of the seats, irrespective of the actual political preferences of the judges themselves?
Hmm, even I hadn't thought of that possible, although quite improbable, understanding of the CIT statute.

Second Update: A contributor to the Greedy Clerks Board has sent along the following email:
With respect to the CIT, your correspondent writes, "there is no judicial way to enforce the statutory limitation. Not unlike 28 U.S.C. s 458, which still somehow managed to accommodate a mother and son team in the 9th Circuit and two brothers in the 8th."

Of course, the appointment of Judges Fletcher and Arnold didn't violate the anti-nepotism statute, because at the time of their nominations, the current s. 458(b)(2) didn't exist. It was added in 1998, following the Fletcher nomination, to specifically address this situation. The prior version of s. 458 contained no explicit limitation on appointing Article III judges to the same court; it simply stated the following: "No person shall be appointed to or employed in any office or duty in any court who is related by affinity or consanguinity within the degree of first cousin."

During the controversy over the Fletcher nomination, the Office of Legal Counsel looked at the anti-nepotism statute and concluded it did not apply to the Presidential power to appoint Article III judges. That conclusion was based in substantial part on a canon of construction dictating that a statute not expressly including the President's powers should be interpreted as not applying to the President. See http://www.usdoj.gov/olc/willy.fin.32.htm

The current anti-nepotism statute refers specifically to the act of appointing an Art. III judge, so by its terms it does not retroactively apply to Judges Arnold and Fletcher.
Worth noting, the OLC memo was signed by Walter Dellinger.
Posted at 14:22 by Howard Bashman



Imagine that: Today a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit addressed in the context of a habeas corpus petition filed by a state prisoner whether the petitioner's statement to police during the course of custodial questioning that "I think I would like to talk to a lawyer" represented an unambiguous request for counsel.

In the course of his decision, Circuit Judge Diarmuid F. O'Scannlain notes that the Ninth Circuit stands alone in the method it employs when analyzing habeas petitions filed by state court prisoners:
[I]n this circuit, review of a habeas petition under AEDPA requires a two-step inquiry. We must first ask "whether the state court erred at all." Anthony v. Cambra, 236 F.3d 568, 578 (9th Cir. 2000) (citing Van Tran, 212 F.3d at 1155). If the answer is yes, then we apply the AEDPA standard of review, which inquires whether the state court's "error" was contrary to, or involved an unreasonable application of, clearly established federal law, as defined by the Supreme Court.[fn. 3]

3. Our circuit stands alone in mandating a two-step methodological approach to sec. 2254 review. This approach, which requires de novo consideration as an initial, prior step in a 2254 determination, first adopted in Van Tran, 212 F.3d at 1155, has been specifically rejected by two circuits, see Valdez v. Cockrell, 274 F.3d 941, 954 n.19 (5th Cir. 2001); Bell v. Jarvis, 236 F.3d 149, 160 (4th Cir. 2000) (en banc), and conflicts with two others, which permit, but do not require, a two-step methodology. See Kruelski v. Connecticut Superior Court, ___ F.3d ___ (2d Cir. 2003); Hurtado v. Tucker, 245 F.3d 7, 16 (1st Cir. 2001) (allowing but not requiring de novo review of underlying constitutional issue "[i]n a particular habeas case."). Given that there are now three separate judicial interpretations of our jurisdictional mandate, Supreme Court resolution of this issue may ultimately be in order.
You can access the complete ruling at this link.
Posted at 13:34 by Howard Bashman



Seventh Circuit asks Indiana Supreme Court to determine applicability of Indiana law prohibiting anonymous ads supporting or opposing candidates: You can access today's very interesting ruling of the U.S. Court of Appeals for the Seventh Circuit, written by Circuit Judge Richard A. Posner, at this link.
Posted at 12:57 by Howard Bashman



Some judicial nomination/confirmation news from here and there: The Clarion-Ledger today reports that "Black leaders spar over Pickering; Some say Bush judicial nominee should withdraw." The Sun News reports here that "Graham always backed Pickering." Robert D. Novak today has an essay entitled "Bush's First Justice?" Finally for now, The Times-Picayune yesterday ran an article entitled "3 Decades of Debate: Abortion battle now focuses on federal judges with the power to restrict, or reverse, Roe v. Wade."
Posted at 11:57 by Howard Bashman



That was then, this is then too: If you are looking for the precise date of a U.S. Supreme Court ruling issued between 1791 and 1883 (and, honestly, who isn't?), the U.S. Supreme Court's Web site offers this tremendous resource.
Posted at 11:49 by Howard Bashman



FindLaw columnist Edward Lazarus on Roe v. Wade: Lazarus, a former law clerk to Justice Harry A. Blackmun, speaks out here.
Posted at 11:43 by Howard Bashman



Sixth Circuit yesterday denied federal government's petition for rehearing en banc in public access to "special interest" deportation case: Today's edition of The Detroit Free Press offers this report. The Third Circuit, back in early December 2002, likewise denied rehearing en banc (and by a sharply divided margin, to boot) in a case that reached the opposite result. You can access my post on the Third Circuit's denial of rehearing en banc here, and that post provides links to both courts' earlier rulings on the subject. Next stop for these conflicting yet exceptionally important cases will undoubtedly be the Supreme Court of the United States.
Posted at 11:30 by Howard Bashman



"Impossible Task: Explaining abortion to kids." Author Susan Konig today has this essay at National Review Online.
Posted at 09:53 by Howard Bashman



"President Bush dodges on racial preferences": The February 10, 2003 issue of National Review magazine contains this essay by the publication's editors.
Posted at 09:49 by Howard Bashman



Elsewhere in Thursday's newspapers: The Los Angeles Times reports here that "More Guns in Citizens' Hands Can Worsen Crime, Study Says." David G. Savage has an article entitled "Liability in Home Sale Bias Limited; The U.S. Supreme Court says the owner of a real estate firm needn't pay for an agent's racism," and here he reports that "High Court Reviews Drug Discounts for Uninsured." You can access here an article entitled "Fight Over Roe, Turning 30, Is More Politically Sober; The White House asks that friends and foes of the abortion-rights ruling 'coalesce around shared concerns.'" And in news from California, here's an article entitled "Echoes of Illinois on Death Row: California system shares traits with one so flawed that the state's governor commuted all sentences."

Today's edition of The Washington Times reports here that "Polls show public sides with Bush in race case." Frank J. Murray reports here that "Court asked to strike down 'MaineRx.'" This article reports that "Bush urges ban on partial-birth abortion." And you can access here an article entitled "Judge doesn't swallow suit about fat children."

Lyle Denniston of The Boston Globe has an article entitled "Supreme court wants US to weigh in on Maine Rx; Justices hear sides on drug discounts." And The Portland Press Herald reports here that "Supreme Court hears Maine Rx challenge."
Posted at 08:28 by Howard Bashman



"Judiciary Panel Expects Estrada Vote": The Associated Press provides this coverage.
Posted at 08:24 by Howard Bashman



"Microsoft Appeals Java Must-Carry Ruling": Reuters offers this report.
Posted at 08:23 by Howard Bashman



In Thursday's newspapers: The Christian Science Monitor contains an article entitled "The case of judges v. ideology: A Texas judge fuels debate over whether Bush appointees will interpret the law, or make it." The article repeats a common inaccuracy advanced by opponents of Fifth Circuit nominee Priscilla R. Owen that Alberto Gonzales was referring to her when he accused one of his colleagues of "an unconscionable act of judicial activism."

The New York Times reports here that "Bush Judicial Choices Set to Clear Senate Quickly." The article reports that next Wednesday's hearing will consider not only Sixth Circuit nominees Deborah L. Cook and Jeffrey S. Sutton, but also D.C. Circuit nominee John G. Roberts, Jr. You can access here an article entitled "Justices Voice Skepticism on Taking Drug-Cost Case." Linda Greenhouse reports here that "Real Estate Firms Win Immunity to Bias Suits." That headline, regrettably, misstates the substance of yesterday's U.S. Supreme Court ruling, which I have already discussed in detail in a post accessible below. Here's an article entitled "Big Macs Can Make You Fat? No Kidding, a Judge Rules." Adam Liptak reports here that "Circumcision Opponents Use the Legal System and Legislatures." And this article is entitled "At a Distance, Bush Joins Abortion Protest."

Charles Lane of The Washington Post has an article entitled "High Court Considers Cost of Prescriptions; Justices Appear Hesitant to Make Political, Economic Tradeoffs in Maine Case." Here's an article entitled "Political Climate Energizes Abortion Foes." And in news from Virginia, you can access here an article entitled "Malvo Indicted as An Adult; Teen Sniper Suspect Eligible for Execution"; here, "Teens Ponder Malvo's Possible Fate; Students Give Varied Views on Suspect Young Enough to Be Classmate"; and here, "Judge's Rejection Sparks Racial Rift in Richmond."
Posted at 00:15 by Howard Bashman



Wednesday, January 22, 2003
While the Court of International Trade may remind one of the District of the Northern Mariana Islands, the CIT is an Article III court: A reader has emailed, in light of my post from this afternoon noting that a Judge of the U.S. Court of International Trade was sitting by designation with a Second Circuit panel, to ask whether that raised the same issues that the U.S. Supreme Court granted cert. to resolve in November of 2002 (in a very interesting case that I examined in detail here). I'm pleased to report that unlike the District of the Northern Mariana Islands, which is not an Article III court and the judges of which do not have life tenure (see here and here), the Court of International Trade is an Article III court, and its judges do have life tenure. You can access more information about the Article III status of the Court of International Trade at this link.
Posted at 23:37 by Howard Bashman



Available online at law.com: Tony Mauro reports here on today's U.S. Supreme Court oral argument in the case that challenges Maine's prescription drug program. My favorite quote from Tony's article: "'Why are you bothering us?' Scalia asked rhetorically at one point."

In other news, you can access here an article entitled "Obesity Suit Against McDonald's Dismissed."
Posted at 23:31 by Howard Bashman



Even after yesterday's U.S. Supreme Court ruling, limits still exist to commission of conspiracy, Judge Richard A. Posner today reminds us: Yesterday's ruling of the U.S. Supreme Court held that one can still be found guilty of participating in a conspiracy even if she joins the conspiracy after the government has thwarted the conspiracy's objective. Today, a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, in an opinion by Circuit Judge Richard A. Posner, explained that not every crime that requires two people to commit constitutes a conspiracy.

Judge Posner's opinion is so worth reading that I will now quote a key passage from it at length, with all citations omitted:
Conspiracies are punished separately from single-offender criminal acts, and often as severely even if the conspiracy fails to achieve its aim, because a group having some illegal purpose is more dangerous than an individual who has the same purpose. They are more dangerous not only because there is more power for harm in a group and hence a greater likelihood that the group will achieve its criminal aim, but also because a group can take advantage of the division of labor, parceling out tasks in accordance with the skills, preferences, and experience of the individual members, thus enabling it to operate on a larger scale, and conceal its criminal activities more effectively, tha[n] would be possible for a lone wolf. A seller and a buyer do not compose a "group" in the sense relevant to conspiracy law, because they do not have a common aim; they act at arm's length rather than cooperatively, each trying to get the better of the deal. Shi's aim was to obtain $100 for furnishing Yu with a forged document; Yu's to use the document to obtain an Indiana ID. They did not seek joint possession, or have any other common object, without which there is no conspiracy.

And anything that would make a sale more ominous than another kind of crime (perhaps the fact that voluntary transactions are more difficult to detect than crimes with readily identifiable, indignant victims) would be reflected in the punishment for the sale. To punish it more severely as conspiracy would be an egregious example of redundant punishment. Put differently, since the agreement is inherent in the sale, calling it a conspiracy merely relabels the sale rather than identifying an added source of menace warranting punishment.

The government more or less acknowledges what we have said so far but argues that Shi and Yu were conspiring not merely to furnish Yu with a phony I-94 but by doing so to enable him to commit a further crime, namely to extract from the Indiana motor vehicle bureau a state identification card without furnishing the bureau with proper documentation. And since Yu did not live in Indiana, he was not entitled to an Indiana identification card in any event. In other words, Shi and Yu were agreeing to obtain an identification card from the bureau of motor vehicles illegally. This is a plausible characterization of their conduct, and had they been charged with conspiring to defraud the motor vehicle bureau they might well have been found guilty. But they were not charged with conspiring to commit any offense, state or federal, against the bureau. They were charged with conspiring, that is, agreeing, to violate section 1028 of the federal criminal code, specifically the provisions of that section that forbid the transfer and possession of (so far as bears on this case) a forged I-94. If A agrees to sell a gun to B for use against C, A and B are guilty of conspiring against C. They are not guilty of conspiring to transfer the gun from A to B.
You can access the complete opinion at this link.
Posted at 23:11 by Howard Bashman



U.S. Supreme Court round-up for January 22, 2003: Today marked the second day in a row that the Supreme Court of the United States, in an opinion written by Justice Stephen G. Breyer, unanimously disagreed with a ruling of the U.S. Court of Appeals for the Ninth Circuit. In my coverage last night of yesterday's Supreme Court ruling, I tried to focus on how yesterday's decision wasn't as bad for the Ninth Circuit as it may have seemed on first glance. Today's Supreme Court ruling, unfortunately, just doesn't provide the basis for me to take the same approach that I employed yesterday. In fact, the best news for the Ninth Circuit that emanated from the U.S. Supreme Court today is that the Supreme Court won't be issuing opinions again until Monday, guaranteeing no more Ninth Circuit reversals until then.

Today's decision came in the case of Meyer v. Holley, No. 01-1120 (U.S. Jan. 22, 2003). Mr. and Mrs. Holley, an interracial couple, were in the market for a home. They allege in a lawsuit that they filed under the Federal Fair Housing Act that a real estate agent prevented them, for racially discriminatory reasons, from purchasing the home that they desired. The Holleys accordingly filed suit under the Fair Housing Act against the real estate agent and the corporation for which he worked. Additionally, however, the Holleys sued the real estate corporation's sole shareholder, even though the facts of record failed to show that the shareholder, David Meyer, knew of or endorsed the agent's discriminatory conduct.

A three-judge panel of the Ninth Circuit ruled, in an opinion you can access here, "that a corporation and its officers may be held liable for their failure to ensure the corporation's compliance with the FHA, whether or not the officers directed or authorized the particular discriminatory acts that occurred." As the rationale for its ruling, the Ninth Circuit panel explained:
The overriding societal priority of the FHA indicates that the owner has the power to control the acts of the agent and so must act to compensate the injured party and to ensure that similar harm will not occur again. When one of two innocent people must suffer, the one whose acts permitted the wrong to occur is the one to bear the burden.
The Supreme Court today would have none of that. While the Court agreed with the Ninth Circuit that the Fair Housing Act imposes vicarious liability without fault on the corporation that employs an agent who violates the Act, the Court recognized that "in the absence of special circumstances it is the corporation, not its owner or officer, who is the principal or employer, and thus subject to vicarious liability for torts committed by its employees or agents."

Answering my call last night for an opinion that employs the always popular introductory phrases "for one thing" and "for another thing," Justice Breyer puts those phrases to good use on pages five and six of his opinion:
For one thing, Congress said nothing in the statute or in the legislative history about extending vicarious liability in this manner. And Congress' silence, while permitting an inference that Congress intended to apply ordinary background tort principles, cannot show that it intended to apply an unusual modification of those rules.

* * *

For another thing, the Department of Housing and Urban Development (HUD), the federal agency primarily charged with the implementation and administration of the statute, 42 U. S. C. sec. 3608, has specified that ordinary vicarious liability rules apply in this area. And we ordinarily defer to an administering agency's reasonable interpretation of a statute.
If you're keeping score at home, today's opinion contained two uses of "For one thing," but only one use of "For another thing."

Returning to the merits, it also certainly didn't help the Ninth Circuit's likelihood of affirmance that even the prevailing party in the Ninth Circuit refused to defend that court's holding before the Supreme Court. As Justice Breyer's opinion observes, "Finally, we have found no convincing argument in support of the Ninth Circuit's decision to apply nontraditional vicarious liability principles--a decision that respondents do not defend and in fact concede is incorrect."

As he did yesterday, Justice Breyer again took the time to explain where the Ninth Circuit went wrong, but today's explanation was much more ugly than yesterday's:
The Ninth Circuit rested that decision primarily upon the HUD regulation to which we have referred. * * * Taken as a whole, the regulation, in our view, says that ordinary, not unusual, rules of vicarious liability should apply.

The Ninth Circuit also referred to several cases decided in other Circuits. The actual holdings in those cases, however, do not support the kind of nontraditional vicarious liability that the Ninth Circuit applied.
The only other bright side is that the Supreme Court sent the case back to the Ninth Circuit with a fairly open-ended remand that would still allow the Ninth Circuit to hold the corporation's sole shareholder liable for the agent's allegedly wrongful acts under various other theories. So, the Ninth Circuit conceivably could still reach the same general result as it did when the case was first before it.

Two quick notes in closing. As someone emailed to me earlier in the day, Justice Breyer's opinion for the Court speaks of certain language in a quotation as "underscored" when in fact it is italicized. Finally, the big lesson from today's opinion is summed up in the following quotation: "which 'of two innocent people must suffer,' ibid., and just when, is a complex matter." And that concludes tonight's U.S. Supreme Court round-up.
Posted at 22:06 by Howard Bashman



"Just" in the nick of time: At 3:09 p.m. pacific time today, Eugene Volokh added the following post to his site:
GOVERNMENT OFFICIALS BUYING UP ALL COPIES OF A NEWSPAPER THAT CRITICIZED THEM: The U.S. Court of Appeals for the Fourth Circuit has just held that this violates the First Amendment, even though the officials paid the stated price. The question is not, in my view, open-and-shut, and the opinion doesn't consider the counterarguments as much as it might have; but the result is interesting, and should help prevent such behavior in future cases (like the one in California, where a mayor did something similar to a free newspaper).
For those readers of "How Appealing" who also read Volokh's site, no need to panic -- that's indeed the same ruling that I reported on here back on January 16, 2003 on the day of its issuance by the Fourth Circuit.
Posted at 21:06 by Howard Bashman



Law Professor Eric Muller supports the possible nomination of Michael Chertoff to the Third Circuit: At least that's how I read Eric's post on the topic at his brand new blog, "IsThatLegal?"
Posted at 20:57 by Howard Bashman



Divided Tenth Circuit panel invalidates zoning regulations that precluded nude dancing establishments in certain areas of Ogden, Utah: Another week, another federal appellate court nude dancing decision. Last week, as I originally explained here, it was the Seventh Circuit's turn, and that court produced a very thorough opinion.

Today a divided three-judge panel of the U.S. Court of Appeals for the Tenth Circuit announced its ruling in a case involving the town of Ogden, Utah. Senior Circuit Judge Ruggero J. Aldisert, sitting by designation from the U.S. Court of Appeals for the Third Circuit, wrote the majority opinion, which begins:
Tool Box, Inc., operator of a nude dancing establishment, appeals from a grant of summary judgment in favor of Ogden City Corporation, whose review board used an industrial park's protective covenants to prevent the establishment from operating in an area zoned for sexually oriented businesses.

Nude dancing qualifies as expressive conduct that "falls within the outer ambit of the First Amendment’s protection." City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2001) (plurality opinion); Barnes v. Glen Theatres, Inc., 501 U.S. 560, 566 (1991) ("[N]ude dancing . . . is expressive conduct within the outer perimeters of the First Amendment, though only . . . marginally so.").

This appeal requires us to decide whether a First Amendment prior restraint analysis applies here, and if so, whether procedures that permit government officials to prevent an establishment from operating in a permissible zoned area constituted prior restraint. We hold that the doctrine of prior restraint applies in favor of the Appellant, and accordingly, reverse the judgment of the district court.
Circuit Judge Harris L. Hartz dissented. You can access both the majority and dissenting opinions at this link.
Posted at 20:31 by Howard Bashman



"Justices Limit Housing Bias Lawsuits": Linda Greenhouse of The New York Times offers this report.
Posted at 19:05 by Howard Bashman



"Judge Rejects Obese Teenagers' Suit Against McDonald's": New York Times reporter David Stout provides this coverage.
Posted at 17:31 by Howard Bashman



"Some AP Employees Withhold Bylines": AP reporters are on byline strike again today and tomorrow, according to this article without a byline. Which brings to mind these words of wisdom from Pulitzer Prize-winning author Louis Menand.
Posted at 17:24 by Howard Bashman



"Del. Inmate May Sue Over Secondhand Smoke": The Associated Press has finally deemed newsworthy this ruling issued yesterday by the U.S. Court of Appeals for the Third Circuit. I first mentioned this decision last night in a post you can access here.
Posted at 17:16 by Howard Bashman



Cert. denied yesterday in the Akron, Ohio campaign finance challenge: The SardonicViews blog has the details here.
Posted at 17:08 by Howard Bashman



Oh deer! Apparently "driving deer" is such a problem where Mainers come from that the State chose to make the conduct a crime. This decision that the Supreme Judicial Court of Maine issued yesterday, and revised today, examines whether the statute prohibiting the offense is unconstitutionally vague. Where I live, by contrast, the main problem is driving into deer.
Posted at 16:59 by Howard Bashman



The problem with footers in documents: In case you somehow happen to miss all thirty mentions of this fact (once at the bottom of each page of this opinion that the U.S. Court of Appeals for the Second Circuit issued today), "The Honorable Richard W. Goldberg, of the United States Court of International Trade, [is] sitting by designation." (Update: The footer error has since been remedied by the court.)
Posted at 16:45 by Howard Bashman



"Senate Starts Moving on Bush Judges": The Associated Press offers this report.
Posted at 16:39 by Howard Bashman



"A conversation with a candid senator": Nat Hentoff writes about his recent discussion with Senator Orrin G. Hatch (R-UT).
Posted at 16:19 by Howard Bashman



Byron York is indeed correct, I am reliably advised: See the post immediately below for details.
Posted at 15:07 by Howard Bashman



According to Byron York of National Review Online: "New Senate Judiciary Committee chairman Orrin Hatch has scheduled a session for Friday morning in which the committee is expected to vote on the appeals court nomination of Miguel Estrada." You can access York's complete post here. No such meeting is currently reflected on the Judiciary Committee's Web site, which is still being updated (notice, for instance, that the press contacts page still shows the Republicans in the minority). If I'm able to confirm the substance of York's report, you'll be the second to know.
Posted at 14:39 by Howard Bashman



"Supreme Court Looks at Drug Pricing Plan": Anne Gearan of The Associated Press reports here on one of the cases argued this morning before the Supreme Court of the United States.
Posted at 14:03 by Howard Bashman



Law Professor Jack Balkin asks "Is Clarence Thomas Constitutional?" The permalink for Jack's post isn't working, but you can find it here (scroll down as necessary). If I understand the point Jack is trying to make (a big if, mind you), then I find it most absurd.
Posted at 14:00 by Howard Bashman



"Bush to stay ambiguous on admissions stance": Today's edition of The Michigan Daily offers this interesting report.
Posted at 13:46 by Howard Bashman



The Prison Mailbox Rule rules: So the Eighth Circuit has ruled in this decision issued today.
Posted at 11:55 by Howard Bashman



Fat chance: Senior District Judge Robert W. Sweet of the U.S. District Court for the Southern District of New York today issued an opinion and order dismissing (mostly without prejudice) obesity-related claims filed against McDonald's.

The opinion states, beginning on page 6:
This opinion is guided by the principle that legal consequences should not attach to the consumption of hamburgers and other fast food fare unless consumers are unaware of the dangers of eating such food. As discussed, infra, this guiding principle comports with the law of products liability under New York law. As Sir Francis Bacon noted, "Nam et ipsa scientia potestas est," or knowledge is power. Following from this aphorism, one important principle in assigning legal responsibility is the common knowledge of consumers. If consumers know (or reasonably should know) the potential ill health effects of eating at McDonalds, they cannot blame McDonalds if they, nonetheless, choose to satiate their appetite with a surfeit of supersized McDonalds products. On the other hand, consumers cannot be expected to protect against a danger that was solely within McDonalds' knowledge. Thus, one necessary element of any potentially viable claim must be that McDonalds' products involve a danger that is not within the common knowledge of consumers. As discussed later, plaintiffs have failed to allege with any specificity that such a danger exists.
You can access the complete opinion here, and you can access here a news report from CNNmoney.
Posted at 11:37 by Howard Bashman



Stuart Taylor Jr. asks "Who's Worse? Race-Baiting Dems Or Class-Warring GOP?" You can access his latest essay here.
Posted at 11:21 by Howard Bashman



Dorf on Roe: Here, via FindLaw. What were you expecting, "Dorf on Golf"?
Posted at 11:19 by Howard Bashman



"Justices Limit Housing Bias Lawsuits": The Associated Press offers this report.
Posted at 11:13 by Howard Bashman



Today's lone U.S. Supreme Court opinion: Fresh from the release of his opinion reversing the Ninth Circuit yesterday, Justice Stephen G. Breyer today has the pleasure of unanimously vacating the Ninth Circuit in a case that presents the question whether "the Fair Housing Act permits owners and officers of corporations to be absolutely liable for an employee's or agent's violation of the act, whether or not they personally directed, authorized, or were even aware of the particular discriminatory acts that occurred?" You can access the Ninth Circuit's ruling here, you can access the Solicitor General's amicus brief here, and you can access the oral argument transcript here.

Update: You can access today's opinion at this link. I will of course have a more complete description of this ruling here sometime tonight.
Posted at 10:12 by Howard Bashman



Sixth Circuit opts for "treating physician" rule in ERISA cases: And thus today the existing circuit split on this issue intensifies.
Posted at 10:07 by Howard Bashman



"Mainers take drug fight to D.C.": In case anyone was wondering what to call people from the State of Maine, The Portland Press Herald provides an answer here.
Posted at 10:02 by Howard Bashman



The Oyez Project Web site goes live at a new address: Thanks to the author of the Southern Appeal blog for drawing this news to my attention, and for recommending this photo, which shows Justices Antonin Scalia and Ruth Bader Ginsburg riding an elephant in India. You can take virtual tours of the chambers of three Justices (QuickTime plug-in required): John Paul Stevens, here; Ruth Bader Ginsburg, here; and Stephen G. Breyer, here.
Posted at 09:54 by Howard Bashman



"High Court Considers Drug Pricing Plan": Anne Gearan of The Associated Press offers this report.
Posted at 09:49 by Howard Bashman



On the thirtieth anniversary of Roe, The Atlanta Journal-Constitution remembers Ms. Doe: See this article, published today.
Posted at 09:46 by Howard Bashman



Elsewhere in Wednesday's newspapers: In The Los Angeles Times, David G. Savage reports here that "High Court OKs Conspiracy Law's Broad Reach; Justices reverse a 9th Circuit ruling and unanimously agree that even minor players can be charged with a major crime." In other news involving the Ninth Circuit, this article reports that "Slavery Lawsuits Overruled; Federal jurists say a state law allowing WWII victims of forced labor to sue is illegal." The LATimes today contains two op-eds on the subject of abortion -- Law Professor Jonathan Turley contends here that "Roe, now in serious danger, must be made stronger," while columnist Norah Vincent writes that "To be against abortion is not to be against feminism."

In The San Francisco Chronicle, reporter Bob Egelko has an article entitled "WWII slave-labor lawsuits ruled illegal; Appellate court says state law infringes on federal prerogative."

The Washington Times reports here that "Pro-choicers celebrate Roe, concede gains by opponents." Relatedly, an op-ed is entitled "Jefferson and Roe vs. Wade." This article reports that "Texas suit targets 100 companies tied to slave trade." And in news pertaining to an oral argument yesterday before the U.S. Court of Appeals for the Fourth Circuit, this article reports that "VMI argues for restoration of prayer." According to the article, Senior Third Circuit Judge Morton I. Greenberg was sitting by designation on the Fourth Circuit panel that heard the oral argument.

And speaking of the Third Circuit, yesterday Third Circuit Judge Marjorie O. Rendell administered the oath of office to her husband, Ed, allowing him to become the Governor of the Commonwealth of Pennsylvania. You can access news coverage of the event here, plus pictures on the front pages of The Philadelphia Inquirer and The Philadelphia Daily News (caution, this photo involves kissing).

The Boston Globe reports here that "SJC to rule on deals between developers, towns." The convicted shoe-bomber is again in the news, as this article reports that "Reid denied access to classified documents." The Globe contains an editorial entitled "Remembering Roe v. Wade." And in op-eds, you can access here Robert Kuttner's essay entitled "The voice of privilege" and here Derrick Z. Jackson's essay entitled "The King they still won't talk about."
Posted at 06:51 by Howard Bashman



In Wednesday's newspapers: In The Washington Post, Charles Lane reports here that "Justices End Legal Cloud Over Conspiracy Cases." You can access here a front page article entitled "Both Sides on Abortion Try a Youthful Drumbeat." In news from Virginia, "Grand Jury Hears Malvo Case" here, and "Bill Seeks Stiffer Rules For Abortion Clinics in Va." here. Ellen Goodman has an op-ed entitled "30 Years, 30 Million Women," while Kermit Roosevelt's op-ed is entitled "Shaky Basis for a Constitutional 'Right.'"

In The New York Times, Adam Liptak reports here that "Court Dismisses Claims of Slave Laborers." You can access here an article entitled "Bush Offers a Ringing Endorsement to Roe Foes, From 700 Miles Away." Meanwhile, among the Democrats, "In Turn, 6 Presidential Hopefuls Back Abortion Rights," this article reports. Here's an article entitled "Virginia Indicts Young Sniper Suspect on Murder Charges." In an editorial, The NYTimes writes of "A Forgotten Hero." And you can access here a very interesting op-ed jointly written by two advocates on opposite sides of the abortion issue entitled "The Right to Agree."

The Christian Science Monitor is full of noteworthy offerings. Warren Richey reports here that "Police powers broadened in drug-trafficking sting" and here that "Maine's pill plan faces court test; Supreme Court considers whether novel state program using 'coercion' to reduce prescription drug costs is legal." You can access here an article entitled "The abortion wars: 30 years after Roe v. Wade." In news from California, this article reports that "For coastal commission, a stormy future; Appeals court rules that its structure defies the constitution, giving Calif. legislature too much sway." Finally for now, The Monitor contains an editorial entitled "Making Abortion Rare: After 30 years, Roe is still worth defending."
Posted at 00:07 by Howard Bashman



Tuesday, January 21, 2003
The Michigan Daily reports on the University of Michigan racial preferences in student admission cases: You can access here an article entitled "Powell, Rice take stand on 'U' policies." This article reports that "Fight for affirmative action spurs new civil rights movement." An editorial is entitled "White washed: Bush's 10 percent plan fails to address key issues." And you can access here an op-ed entitled "Admissions woes lie in execution, not ideals."

Meanwhile, if you were hoping to be the first to send me an email predicated on a misunderstanding of the first of my two April Fools posts from earlier tonight, sorry, that distinction has already been claimed.
Posted at 23:44 by Howard Bashman



Brrr! According to the Weather Channel online, the low temperature in my town tonight will be 9 degrees Fahrenheit, tomorrow night 5 degrees, Thursday night 7 degrees, and Friday night 9 degrees. After that it's back into the double digits!
Posted at 23:21 by Howard Bashman



Online tonight at law.com: Marcia Coyle has an article entitled "High Court Eyes Arbitration Class Actions."
Posted at 23:18 by Howard Bashman



U.S. Supreme Court round-up for January 21, 2003: In the hope that I can put aside for the time being my concern about when will I ever find three hours and forty-five minutes to watch the DVD of Lagaan that arrived in today's mail, it's time now for tonight's U.S. Supreme Court round-up.

The Court announced a single decision today, in United States v. Jimenez Recio, No. 01-1184 (U.S. Jan. 21, 2003). True, the case represented another 9-0 reversal of the U.S. Court of Appeals for the Ninth Circuit, and true, the Ninth Circuit's position on the question presented -- whether a conspiracy automatically terminates once the government has defeated its objective -- was in conflict with ever other federal appellate court to have ruled on the issue. But these factors combine to make it far too easy to say bad things about the Ninth Circuit, so instead the focus of my coverage of this case will be to try to look at the bright side and to remain positive and upbeat.

As Justice Stephen G. Breyer explains in his opinion for the Court, the facts of today's case are straightforward:
On November 18, 1997, police stopped a truck in Nevada. They found, and seized, a large stash of illegal drugs. With the help of the truck's two drivers, they set up a sting. The Government took the truck to the drivers' destination, a mall in Idaho. The drivers paged a contact and described the truck's location. The contact said that he would call someone to get the truck. And three hours later, the two defendants, Francisco Jimenez Recio and Adrian Lopez-Meza, appeared in a car. Jimenez Recio drove away in the truck; Lopez-Meza drove the car away in a similar direction. Police stopped both vehicles and arrested both men.
The question thus presented was whether Jimenez Recio and Lopez-Meza could be found guilty of conspiracy to possess and distribute unlawful drugs even though they joined the conspiracy after the government had seized the drugs. The Court unanimously ruled that these defendants could still be found guilty of conspiracy to possess and distribute unlawful drugs, because "A conspiracy does not automatically terminate simply because the Government, unbeknownst to some of the conspirators, has 'defeat[ed]' the conspiracy's 'object.'" The Supreme Court explained that its holding in the case was not only consistent with its earlier conspiracy pronouncements, but also with the rulings of all other federal appellate courts and the writings of leading criminal law commentators. Justice Stevens issued an opinion concurring in part and dissenting in part. The "concurring in part" agreed with the rest of the Court on the merits; the "dissenting in part" contended that the federal government had failed in the trial court to preserve the point in question for review.

Justice Breyer's opinion -- while lacking any use of the always popular phrases "for one thing" and "for another thing" -- made up for their absence by reviewing in detail how the Ninth Circuit ended up taking a wrong turn in its conspiracy jurisprudence. And the answer seems to point out the risk inherent in using the passive voice. Justice Breyer's opinion explains:
In tracing the origins of the statement of conspiracy law upon which the Cruz panel relied, we have found a 1982 Ninth Circuit case, United States v. Bloch, 696 F. 2d 1213, in which the court, referring to an earlier case, United States v. Krasn, 614 F. 2d 1229 (CA9 1980), changed the language of the traditional conspiracy termination rule. Krasn said that a conspiracy is "'presumed to continue unless there is affirmative evidence that the defendant abandoned, withdrew from, or disavowed the conspiracy or defeated its purpose.'" Id., at 1236 (emphasis added). The Bloch panel changed the grammatical structure. It said that "a conspiracy is presumed to continue until there is . . . defeat of the purposes of the conspiracy." 696 F. 2d, at 1215 (emphasis added). Later Ninth Circuit cases apparently read the change to mean that a conspiracy terminates, not only when the defendant defeats its objective, but also when someone else defeats that objective, perhaps the police. In Castro, the panel followed Bloch. 972 F. 2d, at 1112. In Cruz, the panel quoted Castro. This history may help to explain the origin of the Cruz rule. But, since the Circuit's earlier cases nowhere give any reason for the critical change of language, they cannot help to justify it.
So you see, the origin of the error that the U.S. Supreme Court eradicated today was not some conscious effort to make the Ninth Circuit's conspiracy law all screwed up; rather, it was simply a bad rephrasing of a principle of law that was originally phrased correctly.

Another reason why the Ninth Circuit deserves praise this day is that that court came quite close to fixing the error at issue today on its own. The Ninth Circuit's original decision in the case issued on September 27, 2000, and Circuit Judge Ronald M. Gould dissented. Then, on July 31, 2001, the panel issued an amended opinion that was twice as long as the original opinion. In a footnote that appeared for the first time in the amended opinion, Judge Gould wrote:
This panel is bound by Cruz as authoritative precedent. However, for the reasons stated by Judge Hall in dissent in Cruz, I believe Cruz totally inconsistent with long established and appropriate principles of the law of conspiracy. Though we are now bound by Cruz, and the district court was correct to apply it, I believe that it is an ill-advised precedent that our court should overrule en banc at the earliest opportunity.
That footnote led Justice Breyer, in his opinion for the Court, to mention Judge Gould by name in today's opinion, which adopts the result Judge Gould viewed as correct.

The best opportunity that the Ninth Circuit had to avoid today's result came when that court was considering whether to grant the federal government's petition for rehearing en banc. On October 30, 2001, the Ninth Circuit entered an order denying rehearing en banc. Attached thereto, however, was a dissenting opinion written by Circuit Judge Diarmuid F. O'Scannlain, in which eight other of his colleagues had joined. All told, nine of the court's then twenty-four active judges had voted in favor of rehearing en banc, four shy of the needed majority. Judge O'Scannlain's dissent from the denial of rehearing en banc essentially laid the groundwork for today's unanimous Supreme Court ruling.

Thus, while the Ninth Circuit's harshest critics might view today's unanimous U.S. Supreme Court reversal as just one more example of the ills plaguing the court that presides over our Nation's western coastline, a closer look reveals that those critics would not be correct in this instance.

And that concludes tonight's U.S. Supreme Court round-up. The U.S. Supreme Court expects to issue opinions again tomorrow, so be sure to check in then for a full report.
Posted at 22:01 by Howard Bashman



April Fools, part two: Back in college, I was the first person in my freshman class at Columbia to have a front page article in The Columbia Daily Spectator. And from there, my career as a college journalist really took off, with many, many more articles, culminating in my assignment to cover the University administration beat, where I reported on the controversy over whether Columbia should divest from South Africa, the push for coeducation, and the University's fundraising efforts. Back then, for whatever reason, not many student journalists used a middle initial, but since I had read The New York Times since the day that I sprung from the womb, I knew that a good journalist needed a middle initial (see here for a cite to one of my articles). In a fond tribute, in the April 1 edition of the Columbia Spectator one year, every other student author's byline also contained the middle initial "J." On April 2d, however, once again the middle initial was mine alone.
Posted at 20:58 by Howard Bashman



April Fools, part one: Given that the Supreme Court of the United States has scheduled oral argument in the University of Michigan cases challenging racial preferences in university student admissions for April 1, 2003, I hereby predict that the University's challenged practices will be upheld by the Court in both cases.
Posted at 20:36 by Howard Bashman



The Associated Press is reporting: You can access here an article that begins, "Supreme Court Justice John Paul Stevens blocked Indiana from putting to death its oldest death row inmate Tuesday to give the 71-year-old prisoner, who is partially deaf and blind, extra time to file federal appeals." In other death penalty news, this article reports that "A convicted killer set to die this week won a reprieve Tuesday from a Texas appeals court because state prison records show he may be mentally retarded." Finally, an article entitled "Activists Await Roe v. Wade Anniversary" incorrectly states that "The high court now is split 5-4 in favor of abortion rights." The actual split is 6-3.
Posted at 19:52 by Howard Bashman



Even my local federal appellate court has some noteworthy decisions today: The U.S. Court of Appeals for the Third Circuit issued three so-called "precedential" opinions today, and each merits brief mention. This opinion by Chief Judge Edward R. Becker explains why successful advocates need to have knowledge of even the most obscure hearsay exceptions. The quite wonderful woman who serves with me as co-chair of the Appellate Courts Committee of the Philadelphia Bar Association retained her victory on panel rehearing in this case involving some very unfortunate facts. Finally, in this ruling, two Reagan appointees deny qualified immunity to prison officials in an Eighth Amendment case brought by a prisoner who was exposed to second-hand cigarette smoke, while a Clinton appointee dissents in favor of dismissing the prisoner's claim. Further proof, no doubt, that Republican judicial nominees represent a serious threat to our Nation's basic civil rights and liberties.
Posted at 19:35 by Howard Bashman



"Court Hears Housing Discrimination Case": Gina Holland has this report on one of the two cases argued today at the U.S. Supreme Court.
Posted at 17:24 by Howard Bashman



What are the odds? Three readers of "How Appealing" have essays today at National Review Online. Douglas W. Kmiec has an essay entitled "The Solicitor General's Brief: For diversity and against racism." Allison R. Hayward asserts that campaign reformers of today should study Buckley v. Valeo more closely. That opinion is so very lengthy, I say that everyone should study it more closely (at least while it still remains good law). And Jonathan H. Adler has an essay entitled "Easterbrook Off the Rails: An SUV critic loses his grip on reality." Which Easterbrook brother does Adler have in mind? Gregg, not Frank.
Posted at 16:59 by Howard Bashman



Denise Howell updates her already impressive law blog list: Her mention of the latest arrivals can be found here.
Posted at 16:43 by Howard Bashman



"Court Bars WWII-Era Enslavement Suits": The Associated Press offers this report. Let's see how long it takes for the story to be updated to note the point I've mentioned here, two posts below this one.
Posted at 16:41 by Howard Bashman



Order vacating for reconsideration due to the Solicitor General's partial confession of error draws dissent of four Justices: It will be interesting to see what the Fifth Circuit will do in light of this and this. Thanks to one of my many very loyal Washington, DC-based readers for making sure this didn't evade my attention.
Posted at 16:22 by Howard Bashman



Today's Ninth Circuit World War II slave labor ruling conflicts with decision issued last week by California Court of Appeal for the Second District: The California state appellate court's opinion begins:
Code of Civil Procedure section 354.61 allows certain individuals who were "slave labor" or "forced labor" victims during World War II (WWII) to recover compensation for unpaid labor and personal injuries suffered during that time period. In this case, we decide whether an international treaty preempts section 354.6 and whether the statute is unconstitutional because it impermissibly infringes upon the federal government's exclusive power over foreign affairs. We also decide whether section 354.6 is unconstitutional because it violates due process by allowing claims that arose long ago outside California. We hold the statute is neither preempted nor unconstitutional. Rather, it validly extends the applicable statute of limitations that would otherwise bar claims for unpaid labor and personal injuries suffered by slave or forced labor victims.
You can access the complete ruling of the California Court of Appeal, Second District, at this link.

The Ninth Circuit's ruling issued today makes no mention of the California appellate court's contrary ruling from last week, but that may simply reflect the lead time necessary to get an opinion published.
Posted at 16:14 by Howard Bashman



Second Circuit splits the circuits concerning whether equal benefit clause of 42 U.S.C. sec. 1981 requires existence of state action: Of course, the Second Circuit (whose decision issued today you can access here) is probably right in its view, and, notably, the Sixth Circuit has granted rehearing en banc to reconsider this earlier ruling to the contrary.
Posted at 15:55 by Howard Bashman



The U.S. Supreme Court's argument calendar for the session beginning March 24, 2003: Available here. The use of racial preferences in university student admissions, laws banning homosexual sodomy, and other interesting cases are to be heard then.
Posted at 15:43 by Howard Bashman



An important victory for defendants opposing the certification of class actions alleging fraud: Today the U.S. Court of Appeals for the Fifth Circuit issued this ruling.
Posted at 15:31 by Howard Bashman



Attention First Amendment free speech-free press fans: Today a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit ruled that "the Puerto Rico criminal libel statute incorporates constitutionally invalid standards in the context of statements about public officials or public figures" and therefore is "unconstitutional under the First Amendment as applied to statements regarding public officials or figures." You can access the opinion here.
Posted at 15:04 by Howard Bashman



"Estrada, Owen At Top of List": Roll Call offers this report.
Posted at 14:57 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "High Court Ruling May Aid Terror Fight"; here, "Court Refuses Ky. School Shooting Case" (my earlier report on the Sixth Circuit's ruling in that case is available here); and here, "Bush Stays Silent on Racial Preference" (the transcript of the President's remarks is available here).

Tuesday, April 1, 2003 will be the day on which the U.S. Supreme Court hears oral arguments in the two University of Michigan cases, the final AP article linked above advises. Update: See also this article posted this afternoon at the Web site of The New York Times.
Posted at 14:44 by Howard Bashman



Rehearing en banc in a U.S. Court of Appeals on a question of state law? Today the en banc U.S. Court of Appeals for the Eighth Circuit issued a decision that answered the question whether a given contract was ambiguous under North Dakota law. Three of the en banc court's twelve judges dissented on the ground that "Requiring a routine diversity case such as this to be reheard en banc violates the Federal Rules of Appellate Procedure and the longstanding policy of this court." I wholeheartedly agree, and am somewhat shocked that only three of the court's twelve judges joined the dissent. Perhaps the other nine agreed with the court's ruling on the merits (which I say with tongue planted firmly in cheek, because the other nine did join in the majority opinion). You can access Senior Circuit Judge Donald P. Lay's dissenting opinion, and the other opinions issued in the case, at this link.
Posted at 14:39 by Howard Bashman



Judge Stephen Reinhardt agrees that it's best to "eschew cliches": Back on November 6, 2002, I had a post on this very Web log entitled "Eschew cliches."

Today Ninth Circuit Judge Stephen Reinhardt issued a very interesting opinion concurring in the judgment that states, in full:
The per curiam opinion concludes that none of the relevant factors compels dismissal without leave to amend. With this result I concur. I write separately, however, to express my concern regarding the use of cliches in judicial opinions, a technique that aids neither litigants nor judges, and fails to advance our understanding of the law. In particular, I regret the opinion's use of the undeservedly common "three bites at the apple" cliche, slip op. at 891, (even more commonly, "two bites at the apple") also employed by the district court, which in turn lifted it from the written submission of the prevailing party. Such cliches too often provide a substitute for reasoned analysis.

Not only did the district court here fail to identify any of the Foman factors that would have supported a dismissal with prejudice, but it also in effect adopted a "three strikes" rule for securities fraud pleading that has no support in precedent. In the district court's view, appellant had had "three bites" and deserved no more opportunities to comply with the stringent requirements of the PSLRA. Simply counting the number of times a plaintiff has filed a complaint cannot, however, substitute for an analysis of whether the rigorous standards of the PSLRA have been met.

The per curiam opinion regrettably (but deliberately) reiterates the same cliche used by the district court. Metaphors enrich writing only to the extent that they add something to more pedestrian descriptions. Cliches do the opposite; they deaden our senses to the nuances of language so often critical to our common law tradition. The interpretation and application of statutes, rules, and case law frequently depends on whether we can discriminate among subtle differences of meaning. The biting of apples does not help us.

It is one of the "great merits and advantages" of our common law tradition that, "instead of a series of detailed practical rules, established by positive provisions, and adapted to the precise circumstances of particular cases," we have "broad and comprehensive principles," which are then applied and interpreted by judges in the "precise circumstances of particular cases." Norway Plains Co. v. Boston & Me. R.R., 67 Mass. 263, 267 (1854) (Shaw, C.J.). This process of adaptation and progress, embedded in our legal tradition, necessitates the careful exposition of prose in our opinion writing. A cliche like "three bites at the apple" provides a formalistic rule that does not account for the particularities of an individual case.

The problem of cliches as a substitute for rational analysis is particularly acute in the legal profession, where our style of writing is often deservedly the subject of ridicule. The problem is not ours alone, however. Cliches have an adverse effect on various modes of thinking, some of which are even more important to our future welfare than the legal analyses in which we engage. As George Orwell wrote, over a half century ago:
Modern English, especially written English, is full of bad habits which spread by imitation and which can be avoided if one is willing to take the necessary trouble. If one gets rid of these habits one can think more clearly, and to think clearly is a necessary step toward political regeneration: so that the fight against bad English is not frivolous and is not the exclusive concern of professional writers. [George Orwell, "Politics and the English Language," 13 Horizon 76 (1946).]
It is long past time we learned the lesson Orwell sought to teach us.
You can access both the majority's opinion and Judge Reinhardt's concurrence at this link.
Posted at 14:22 by Howard Bashman



Another federal appellate court recognizes the Internet's value as a tool for communication: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, in an opinion by Circuit Judge Frank H. Easterbrook, ruled that a federal trial court should not have imposed as a term of supervised release in a criminal defendant's sentence that "[t]he defendant shall be prohibited from access to any Internet Services without prior approval of the probation officer."

In the opinion, Judge Easterbrook observes:
The Internet is a vast repository, offering books, newspapers, magazines, and research tools along with smut. A judge who would not forbid Scott to enter a video rental store (which may have an adult-video section) also should not forbid Scott to enter the Internet, even though Disney's web site coexists with others offering filthy pictures or audio files circulated in violation of the copyright laws.
You can access the Seventh Circuit's complete ruling at this link.
Posted at 14:05 by Howard Bashman



BREAKING NEWS -- Ninth Circuit holds unconstitutional California law allowing claims to be brought arising from Second World War slave labor: A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today issued an opinion by Circuit Judge Stephen Reinhardt that begins:
Plaintiffs-Appellants in these consolidated cases allege that they were forced to work as slave laborers for German and Japanese corporations during the Second World War. They seek damages and other remedies for lost wages and for other atrocious injuries they suffered in the course of their forced labor. Defendants-Appellees are corporations (or successors or affiliates of those corporations) that allegedly committed these atrocities.

A California statute passed in 1999 creates a cause of action against such defendants for claims involving Second World War slave labor. Cal. Code Civ. Proc. sec. 354.6. Under the statute, these claims are not time-barred if commenced on or before December 31, 2010. Id. Although Appellants assert a variety of statutory and common law claims for relief, all raise section 354.6 as the primary basis for bringing their suits so many years after the alleged wrongs were committed. Reluctantly, we hold that section 354.6 is invalid under the United States Constitution and that in its absence Appellants' remaining claims are time-barred.
The opinion explains that the ground for invalidating the statute was that it represented "an unconstitutional intrusion on the foreign affairs power of the United States."

You can access the complete opinion (which also happens to include quite a long caption and listing of counsel) at this link.
Posted at 13:36 by Howard Bashman



Good news for fans of The Volokh Conspiracy: The U.S. Supreme Court's decision released today holds that a conspiracy does not automatically terminate simply because its objective can no longer be achieved. I will of course provide a complete synopsis of today's opinion in a post that will appear on this blog sometime this evening.
Posted at 13:19 by Howard Bashman



The definitive guide to when the Fifth Circuit's Clerk's Office is open or closed: Someone who unquestionably does know the answer to when the U.S. Court of Appeals for the Fifth Circuit's Clerk's Office will be open or closed emails to say:
We are open every day (Monday thru Friday) except: New Year's Day, Mardi Gras, Memorial Day, Independence Day, Labor Day, Thanksgiving, and Christmas.
Now I know that there has been some discussion elsewhere and in emails that some of this blog's readers have sent to me about whether a decision to stay open on a certain holiday is a slight to what the holiday represents.

Given that the Fifth Circuit's Clerk's Office is open for business on the federal holidays of Martin Luther King, Jr.'s Birthday, Presidents' Day, Columbus Day, and Veterans' Day, I find it hard to view the decision not to close down as a slight against any of these particular occasions. Rather, I think it probably reflects that the Fifth Circuit is the second busiest federal appellate court (in terms of number of appeals pending) in the Nation.
Posted at 11:48 by Howard Bashman



Today's U.S. Supreme Court order list and opinion: You can access today's U.S. Supreme Court order list at this link (no grants or CVSGs today) and today's opinion (described in the post immediately below) at this link.
Posted at 10:25 by Howard Bashman



Today's lone U.S. Supreme Court opinion: Today the Supreme Court of the United States announced a single opinion, which reversed the judgment of the U.S. Court of Appeals for the Ninth Circuit in United States v. Recio. The case presented the question "Whether a conspiracy ends as a matter of law when the government frustrates its objective," and you can access the Solicitor General's opening brief on appeal at this link and the oral argument transcript here. Once the Supreme Court's opinion becomes available online, I will of course post a link to it.
Posted at 10:11 by Howard Bashman



Available now at a newsstand near you: The January 27, 2003 edition of Newsweek asks on its cover "Do We Still Need Affirmative Action?" Inside you can access articles entitled "Spinning Race" here; "What's at Stake" here; and "Affirmative Access: Making the Grade" here. Lee C. Bollinger writes here that "Diversity Is Essential," while here Armstrong Williams writes "But Not at This Cost." You can access here an article entitled "In Roe's Shadow," and a related essay by Anna Quindlen is entitled "Out of the Time Warp." And here's an article entitled "Father, Where Art Thou? Lee Malvo will be tried as an adult on charges that he helped murder 14 people. If only he'd had one around growing up."

Time magazine contains an article entitled "Under The Radar: Thirty years after Roe v. Wade, the White House is pressing its case against abortion delicately. An inside look at the strategy." A related article bears the headline "Choice and the Post-Roe Generation." And Joe Klein has an essay about racial issues entitled "Too Personal for Comfort."

In U.S. News and World Report, you can access here an article entitled "Affirmative action: Bush weighs in on preferences." Commentator John Leo writes of "Sins of admission." And finally for now, this article is entitled "A face-off over Title IX; Bush panel is likely to change test for athletic equality on campus."
Posted at 09:47 by Howard Bashman



HJB appellate column update: My January 2003 appellate column updating the status of "non-precedential" opinions in federal appellate courts, originally published in The Legal Intelligencer, is now available via my law firm's Web site at this link, and you can access here an archive of all prior months' columns, dating back to December 2000.
Posted at 09:38 by Howard Bashman



The U.S. Supreme Court is due to issue orders and opinions today: Announcements are expected at 10 a.m. eastern time.
Posted at 07:26 by Howard Bashman



In Tuesday's newspapers: The New York Times today reports that "Conservative Positions by Bush Could Cost Votes From Center." You can access here an article entitled "Courts Split on Internet Bans." In news from New York, "Spitzer Says He Will Support Michigan's Admissions Policy." Here's an article entitled "Bush Invokes Faith's Power to Cure Society's Ills." From Oakland, California comes word that "Clash on Medical Marijuana Puts a Grower in U.S. Court." This article reports that "Schools Resegregate, Study Finds." Two sets of letters to the editor may be of interest: "Choices for Women: No Room to Yield" here; and "Bush Takes On Malpractice Suits" here.

In The Washington Post, this article reports that "Prosecution of Moussaoui Nears a Crossroad." Here's an article entitled "Ongoing Prejudice Holds Nation Back, Bush Says." You can access here a front page article entitled "Md. Gears Up for Executions; Death Penalty Could Resume Soon Under Ehrlich." From Virginia comes this report that "Appeals Judge Gets Va. Panel's Approval; Reappointment Clears Key Hurdle in House." An editorial is entitled "Free Mickey Mouse." And Richard Cohen has a column entitled "Failed College Math."

The Washington Times today reports that "Bush hails King's vision." An editorial is entitled "Bush misses the mark." The op-ed page is chock-full of good stuff -- Bruce Fein writes of a "Lethal Blow"; John B. Roberts II writes "It's academic"; Ward Connerly writes of "'No place in life or law'"; Teresa R. Wagner considers "30 years after Roe vs. Wade"; and Hans Allhoff writes "Sentenced to exist: Capital endurance."

In today's edition of The Los Angeles Times, David G. Savage has an article entitled "As Roe vs. Wade Turns 30, Ruling’s Future Is Unsure; With aging justices and a presidential foe, the 1973 decision legalizing abortion could fall." Savage reports that "Catholic University Law Dean Douglas W. Kmiec also foresees more state restrictions on abortion, but not an overruling of the basic abortion right." This article reports that "Bush Praises King's Courage, Vision." You can access here an article entitled "LAX Solicitation Law on Hold for Hare Krishnas." In an editorial, The LATimes writes of a "Resurgence in War on Roe." Columnist Patt Morrison has an op-ed entitled "Lest We Forget the Era Preceding Roe vs. Wade." And columnist Robert Scheer has an essay entitled "Cries of 'Reverse Racism' Ring Hollow; Bush, a 'legacy admission' at Yale, won't lift a finger to help minorities."

The Boston Globe today contains two op-eds that may be of interest: here Dianne Luby writes of "The promise of equality in Roe v. Wade decision"; and here Brian McGrory has an essay entitled "All things being equal."

Today's edition of The Christian Science Monitor contains an article entitled "Cameras in the jury room fuel capital debate."

Finally for now, USA Today reports here that "Nation honors King, 'champion of peace'; Md. church eschews politics, cheers Bush." And here you can access letters to the editor published under the heading "Cries of equality, fairness are hypocritical."
Posted at 06:30 by Howard Bashman



Monday, January 20, 2003
Reader email about affirmative action and Justice John Paul Stevens: My post on this subject from yesterday has spawned another very interesting email from a reader:
Your reader quoted yesterday is certainly correct that there is been a fundamental shift in Justice Stevens' view of affirmative action over the past 25 years. Not only did he author the "conservative-side" dissenting opinion in Bakke, but in his dissent three years later in Fullilove v. Klutznick, 448 U.S. 448, 532, 534 n.5 (1981), he went so far as to compare the racial classifications involved in the minority set-aside ordinances in that case to the Nuremberg laws in Nazi Germany. (Although Justice Stevens is generally regarded as the "nicest" and one of the most humane of justices, I must say I have found that piece of rhetoric to be remarkably intemperate ever since I first encountered it in law school.)

Interestingly, Justice Stevens is not the first occupant of that particular seat to have taken, at least at some point, a surprisingly anti-affirmative action position. Worth rereading today is Justice Douglas's dissenting opinion in the first affirmative action case, DeFunis v. Odegaard, 416 U.S. 316, 320 (1974), which remarkably prefigures the debates that have ensued over the succeeding 29 years and concluded that the University of Washington’s affirmative action program was unconstitutional. (The majority avoided the issue by concluding that as Mr. DeFunis was about to graduate by the time the case reached the Court, the case was moot.)
Thanks for sending along these interesting remarks.
Posted at 21:10 by Howard Bashman



The Senate Judiciary Committee schedules its first hearing and business meeting of 2003: See here and here for more details. A correspondent from Ohio predicts that two Sixth Circuit nominees, Ohio Supreme Court Justice Deborah L. Cook and appellate wunderkind Jeffrey S. Sutton, will be the subject of the hearing, while the likely subject of the business meeting will be D.C. Circuit nominee Miguel A. Estrada (although Cook and Sutton could perhaps be voted on too).
Posted at 18:43 by Howard Bashman



What I really meant to say was . . . : This will teach me never, ever to go out on a limb and say that simply because it is a federal holiday, no federal appellate courts will be issuing opinions. By the way, my law firm is open for business today, and I spent the day working (and got a whole lot of stuff done, I'm quite happy to report). If this Web log's hit counter is any indication, many people are at work today at federal and state appellate courts throughout the Nation. So, I don't think that it's a bad thing that opinions issue on federal holidays (although it would start driving me crazy if they began issuing regularly on Saturdays and Sundays), but it never fails to take me by surprise.

Update: My ability to access this blog's email was on the blink today at work, so it wasn't until moments ago that I learned that Fifth Circuit Judge Jerry E. Smith had sent an email this afternoon reporting: "In answer to your query, the Fifth Circuit clerk's office is open today, and the court has already issued an opinion. The circuit judges have a court meeting today, as well." And then tomorrow, it's on to the en banc oral arguments.
Posted at 17:26 by Howard Bashman



Elsewhere in Monday's newspapers: In The Boston Globe, Lyle Denniston reports here that "Speculation on Rehnquist grows; Retirement seen for chief justice" and here that "Possible nominee Gonzales closely tied to president." You can access here an article that begins, "Kathleen Eccleston recalled being remarkably calm when she argued before the Supreme Judicial Court. It's not every day that a former waitress with no legal training handles questions from the state's top justices." And an op-ed by Cathy Young is entitled "Troubling questions about rape and consent."

In The Los Angeles Times, David G. Savage has an article entitled "Race Should Be a Factor in University Entry, Powell Says; Secretary of State breaks with Bush on Michigan's affirmative action policy." An op-ed by Earl Ofari Hutchinson begins, "On Martin Luther King Jr.'s actual birthday, Jan. 15, the issue of affirmative action was back in the news. The Bush administration decided to support lawsuits by two white students against the University of Michigan's race-based affirmative action programs." In Orange County, California, 2002 resulted in the return of no death penalty verdicts, this article reports. And a recent op-ed that suggested studying killers in prison instead of executing them did not persuade everyone who sent in letters to the editor.

The Washington Times today reports that "Powell, Rice address affirmative action." And USA Today contains an op-ed by Roland S. Martin entitled "What would King have thought of Bush's stand?"
Posted at 17:03 by Howard Bashman



Today's FindLaw columnists don't mince words expressing their disagreement with certain recent rulings: Joanne Mariner writes here about the Fourth Circuit's most recent decision in the Yaser Esam Hamdi case. And guest columnist Chris Sprigman calls the decision in Eldred v. Ashcroft "A Mickey Mouse Ruling" and then uses the occasion to lash out at several other seemingly unrelated decisions with which he disagrees.
Posted at 16:45 by Howard Bashman



Pat Buchanan on President Bush's renomination of Charles W. Pickering, Sr.: You can access Buchanan's essay here, via WorldNetDaily.com.
Posted at 16:03 by Howard Bashman



"Roe v. Wade Ruling Is 30 Years Old": Anne Gearan of The Associated Press has this report.
Posted at 15:42 by Howard Bashman



In news from South Carolina: An article published in yesterday's edition of The State reports: "Doctors, insurers, family lawyers and corporate attorneys oppose a proposed ban on secret S.C. court settlements. That opposition will be aired Tuesday, when the S.C. Supreme Court holds a public hearing on its proposal to ban secret settlements in all state courts."
Posted at 15:41 by Howard Bashman



Sometimes it's best that I'm not the first place on the Web to announce news: Now that Slate today notes here (at the very bottom of the page) that "Dahlia Lithwick is * * * extremely pregnant," I can publicly congratulate her and her husband on the excellent news!
Posted at 14:27 by Howard Bashman



"The Soul of the Law": Robert H. Bork has an op-ed by this title in today's edition of The Wall Street Journal.
Posted at 08:42 by Howard Bashman



In Monday's newspapers: The New York Times contains an article entitled "30 Years After Roe v. Wade, New Trends but the Old Debate." A related article is captioned "Courts Put Girls on the Stand in Alabama." In other news, here you can access an article entitled "From 2 Bush Aides, 2 Positions on Affirmative Action Case."

Finally for now, at OpinionJournal Peggy Noonan has an essay entitled "A Tough Roe: Will the Democratic Party be abortion's final victim?" Of course, Peggy Noonan should not be confused with the quite similarly named Peggy Loonan, whose differing views on the subject of abortion rights can be found in an op-ed published in The New York Times last Wednesday. James Taranto, in the final item contained in last Wednesday's edition of Best of the Web Today, couldn't resist asking "Who Is Peggy Loonan?"
Posted at 06:15 by Howard Bashman



Sunday, January 19, 2003
So-called "Republican mistake" instead translates into this morning's Washington Post mistake: Law blogger Kaimi Wenger has the details here.
Posted at 22:10 by Howard Bashman



Available online at law.com: Tony Mauro reports here that "Bush's Affirmative Action Briefs Walk Fine Line" and here that "'Roe' Reaches 30." This article from The National Law Journal reports that "Prosecutors Attack Death Row Clemencies; They call some inmates ineligible." This article reports that "Texas Court Considers Whether to Allow Filming of Deliberations."

And further proving that every legal pundit worth reading deserves a gig with a law.com regional affiliate, you can access here the latest installment of Justice William W. Bedsworth's column. This month his column bears the title "Take the Ashes and Gub; The Dumbest Criminal of the Year Award."
Posted at 22:07 by Howard Bashman



Wednesday, January 22, 2003 will be the thirtieth anniversary of the U.S. Supreme Court's decision in Roe v. Wade: In anticipation of the anniversary, press coverage is beginning to build to a crescendo.

Today's edition of The San Francisco Chronicle contains an article entitled "Beleaguered Roe vs. Wade turns 30; High court changes could overturn ruling." Newsday contains an article entitled "Chipping Away at Roe: Conservatives taking aim at 30-year-old abortion decision." The Daytona Beach News-Journal reports here that "Political power shift worries abortion rights activists." The Scripps Howard News Service reports here on "The Abortion fight through the years." The News and Observer of Raleigh, North Carolina contains an interview with the the North Carolina regional organizer for NARAL Pro-Choice America entitled "The right to choose is beset by threats." Finally, in news from Virginia, "A two-seat change in the Virginia Senate has given Republican lawmakers the muscle they need to pass legislation banning partial-birth abortions and to override a possible veto by Gov. Mark Warner. "
Posted at 21:21 by Howard Bashman



"Judge in midst of D.C. debate": Today's edition of The Clarion-Ledger contains this article about Fifth Circuit nominee Charles W. Pickering, Sr.

Elsewhere, The New York Post today contains an editorial entitled "Dickering Over Pickering." And The Commercial Appeal of Memphis, Tennessee today contains an op-ed entitled "Pickering nomination won't be decided on its merits."
Posted at 21:11 by Howard Bashman



"Content owners, open-access camp on to next round": I nearly overlooked this analysis, from today's Boston Globe, about the consequences of the Eldred ruling.
Posted at 21:02 by Howard Bashman



Go get 'em, Philadelphia Eagles!

Update: Congratulations to the Tampa Bay Buccaneers, who administered an unambiguous thrashing to the Eagles this afternoon in the final professional football game ever to be played at Philadelphia's Veterans Stadium. While I would have much preferred to see my hometown team win, I have very fond appellate-related memories of Tampa Bay involving, among other things, my work on the merits briefs for the prevailing party in this case. Not to mention that Tampa Bay is also home to one of the Nation's finest steakhouses.
Posted at 14:01 by Howard Bashman



Then versus now -- a look at Justice John Paul Stevens and the issue of taking students' race into account in university admissions: Yesterday a reader sent to me the following email:
I just want to ask your opinion on something that I think has been greatly overlooked in the Michigan cases. Namely that Justice Stevens wrote the opinion in the Bakke case saying that race couldn't be used at all in college admissions because of Title VI of the Civil Rights Act. I read his opinion and just don't see anything that would have changed in the meantime, plus he explicitly rejected the diversity argument. One small quote from him:
We are dealing with a distinct statutory prohibition, enacted at a particular time with particular concerns in mind; neither its language nor any prior interpretation suggests that its place in the Civil Rights Act, won after long debate, is simply that of a constitutional appendage. In unmistakable terms the Act prohibits the exclusion of individuals from federally funded programs because of their race. As succinctly phrased during the Senate debate, under Title VI it is not "permissible to say 'yes' to one person; but to say 'no' to another person, only because of the color of his skin."
I have a couple questions about this. First of all, since Title VI hasn't changed since Bakke, is it likely that Stevens would have changed his mind in the meantime? Second, do you think that it's possible that there are 5 votes other than Stevens that will allow AA to continue? Third, does the fact that the federal government doesn't make the Title VI case in its brief have any effect on whether the judges will use it as a rational to ban AA?

Anyway--I love the site. I am not a lawyer and your site has enabled appellate law to become a rather massive hobby of mine. I can't tell you how many lawyers I know that have been astounded that I am not in law school based on how much detail I know about the variety of cases you talk about. Keep up the great work.
Thank you for the very kind and interesting email. You are of course quite right that Justice Stevens, in Regents of the Univ. of Cal. v. Bakke (1978), voted to hold the use of race in medical school admissions unlawful under Title VI. It is possible that Justice Stevens' views of the issue may have changed in the nearly quarter of a century since then, and it is also possible that the Court's recent decision in Alexander v. Sandoval (2001) may have some impact on the Title VI analysis. (By the way, I don't think that the ruling in Alexander is relevant, but I note its existence in case others disagree.) As always, readers who have given thought to these issues are invited to share their views via email.
Posted at 13:35 by Howard Bashman



A quick look at the week ahead: Monday is a federal and state holiday in honor of Martin Luther King's birthday, so most every federal and state appellate court will be closed tomorrow. (The Clerk's Office of the U.S. Court of Appeals for the Fifth Circuit does not close for every single federal holiday. I invite readers who work for the Fifth Circuit to let me know via email whether that court's Clerk's Office will be open on Monday, as the court's Web page does not provide a readily ascertainable answer.) The U.S. Supreme Court is officially closed on Monday and will hear oral arguments only on Tuesday and Wednesday of this week. On Tuesday, the Court is scheduled to issue orders and opinion(s), and on Wednesday one or more additional opinions are scheduled to issue.

Update: In a very prompt response, a reader affiliated with the Fifth Circuit emails to say: "In response to your question, the clerk's office is closed tomorrow. But, there are two oral arguments, so not everybody has the day off."
Posted at 10:17 by Howard Bashman



In news pertaining to federal judicial nominees: In an article dated yesterday, The Lansing State Journal reports here that "Appeals court vacancies may remain unfilled; Michigan senators block 6th Circuit nominations." (Via The LitiGator.) And thanks to Stuart Buck for sending along a link to this report entitled "Dem tactic sparks row on judges," which appeared in The Hill last Wednesday.
Posted at 10:01 by Howard Bashman



In Sunday's newspapers: In The New York Times, Adam Liptak reports that "Percentage Approach to Admissions Is Unlikely to End Affirmative Action Debate." This article, entitled "I.R.S. Defrauded Tax Court, a Judge Rules," reports on a ruling that the U.S. Court of Appeals for the Ninth Circuit issued on Friday. Democrats are "Absolutely, Positively for Capital Punishment," this article reports. An appeal pending before the Tenth Circuit is the subject of an article entitled "Albuquerque Case Pits Thirst Against Fish." An article about the alleged seventeen-year-old DC sniper suspect, John Lee Malvo, is entitled "In Absence of Parents, a Voice for the Accused." This article reports "No Hard Time for Prison Budgets." And the U.S. Supreme Court's recent ruling in the Eldred v. Ashcroft case has spawned some letters to the editor, which appear under the heading "Great Works, Owned Forever?"

The cover story in today's edition of The Boston Globe's Magazine section is "The Complete Anita Hill: The woman who nearly derailed Clarence Thomas's Supreme Court nomination 11 years ago is now happily teaching at Brandeis - and still disclaiming credit for awakening Americans to workplace sexual harrassment [sic]." This article reports that "Race reemerges as issue that can divide Americans." Here's an article entitled "After 19 years on death row, hope beckons; Murder conviction of Mass. man voided." In op-eds, Thomas Oliphant contends that "Bush's brief on diversity earns an F"; Ellen Goodman sounds "A warning bell on Roe v. Wade"; and Eileen McNamara writes of "Legal right, less choice."

The Los Angeles Times reports here that "Michigan Campus Erupts in Debate Over Affirmative Action: Students square off and the faculty scrambles after Bush joins the case against the admissions policy. The outcome has broad implications." According to this article, "Abortion Foes Attack Roe on New Research; As science advances, some find arenas in which to seek a special status denied the embryo and fetus in the high court's 1973 ruling." This article reports that "Conservative Social Agenda a GOP Challenge; Activists hope to make headway on key issues with Republicans in control of Congress." Ward Connerly's op-ed is entitled "Bush Shows Leadership in Race Issue; Stand on college admissions raises memories of JFK." And John Allen Paulos has an op-ed entitled "Do the Math: Rooting Out Terrorists Is Tricky Business."

The Washington Post contains an article this morning entitled "Bush's Conservative Policies Put Moderates on Edge; As President's Approval Ratings Drop, Some Republicans Worry About Divisive Politics." This article reports on "Abrupt End To Malvo's Stable Life In Florida." In op-eds, Fred Hiatt writes of "Diversity Pretense"; commentator George F. Will has an essay entitled "Unhealable Wounds"; Frances Stead Sellers writes that "A Citizen On Paper Has No Weight"; and Patrick Reddy has an essay entitled "For Black Candidates, a Ceiling of Their Own."

Finally for now, The Washington Times this morning contains an article entitled "Race, diversity key admissions factors" and an op-ed entitled "Throwing away those old boxes."
Posted at 08:33 by Howard Bashman



Saturday, January 18, 2003
Site statistics for last week, and other minor site-related news: "How Appealing" last week received 6,364 page visits on Monday, January 13, 2003; 6,410 on Tuesday, January 14, 2003; 8,554 on Wednesday, January 15, 2003; 6,438 on Thursday, January 16, 2003; and 5,952 on Friday, January 17, 2003.

As promised, tonight I begin my effort to overhaul the "Especially Appealing Blogs" section of links found on the left-hand column of this page. The blogs listed in that section will henceforth be in alphabetical order, and only blogs that are frequently updated will appear there.
Posted at 23:13 by Howard Bashman



"Bush Set for High Court Battle; Strategy Is to Nominate Ideological Conservative": Sunday's edition of The Washington Post contains this front page article.
Posted at 19:00 by Howard Bashman



"Mickey Mouse Clubbed: Disney's cartoon rodent speaks out on the Eldred decision." Available here, at Reason Online. (Via Lawrence Lessig's blog.)

And for those seeking a double-dose of Reason, you can access here an article entitled "Embarrassing Admissions: Bush's Affirmative Action stance may make fairness obsolete."
Posted at 18:49 by Howard Bashman



"The Honorable Midge": Tomorrow's edition of The Philadelphia Inquirer, in its Sunday Magazine, contains a lengthy profile of Third Circuit Judge Marjorie O. Rendell that leave very few questions unasked or unanswered. On Tuesday of next week, Judge Rendell's husband, Ed, will be sworn in as the Governor of the Commonwealth of Pennsylvania.
Posted at 18:32 by Howard Bashman



"High Court to Hear Ohio Housing Case": The Associated Press offers this report.
Posted at 16:18 by Howard Bashman



That's one stylish case you've got there: In a post that appeared here yesterday afternoon I wrote:
In Re: Case With Exceptionally Long Caption: You simply must check out the length of the caption -- or, for my southern friends, the "style of the case" -- on this opinion that the U.S. Court of Appeals for the Fourth Circuit issued today.
Since the time that I attended law school in Atlanta, Georgia, I have wondered about the derivation of the phrase "style of the case." I am familiar with fashion styles, hair styles, styles of peanut butter, etc., but I simply don't understand how "style of the case" came to refer to a case's caption or title. I invite any readers who know the explanation to please educate me via email. Thanks!
Posted at 15:53 by Howard Bashman



What's missing from the Senate Judiciary Committee's Web site now that it's under Republican control? A reader who recently completed a clerkship for a quite excellent judge on the U.S. Court of Appeals for the Ninth Circuit emailed yesterday to observe:
One amusing sidenote to your post about the Senate Judiciary website's being in Republican hands: A subtle but telling manifestation of that is that the column indicating receipt of an ABA peer review has been completely deleted from the charts on the judicial nominations pages.
Of course, the reader is correct, as you can see by clicking on this link. Next, I would expect to see the final category on the page, entitled "Nominations Withdrawn," entirely deleted, because that was undoubtedly put there to remind Republican Senators of all the Clinton nominees whose nominations were not acted on in the waning moments of the Clinton Administration.

With respect to the American Bar Association's involvement in reviewing judicial nominees, however, I should observe that the ABA during the current Bush Administration has been quite evenhanded in its review of Republican judicial nominees. Many very conservative nominees have received "Well Qualified" ratings, which is a vast improvement over past years, when the ratings process seemed to take into account (unfairly, in my view) a nominee's personal and political views about the law in a way that seriously disadvantaged conservative nominees. Between this newfound fairness in the ABA's ratings of judicial nominees and the ABA Journal's upcoming article about law bloggers, which will be featuring me and several other law bloggers, I'm almost tempted to renew my ABA membership to add to my Federalist Society membership. Now if only I could overlook the ABA's very liberal positions in nearly ever matter other than judicial nominations.
Posted at 15:37 by Howard Bashman



"Banana Workers Get Day in Court": The New York Times contains this lengthy article about a case to be argued this upcoming Wednesday in the U.S. Supreme Court. Additional details can be found here in a post on the blog known as How Green Is My Country.
Posted at 15:28 by Howard Bashman



In Saturday's newspapers: Today's edition of The New York Times reports here that "Bush Adviser Backs Use of Race in College Admissions." An editorial is entitled "An Anti-Quota Smoke Screen." Linda Greenhouse reports that "Supreme Court Takes Case on Black Voting Districts." Lawrence Lessig has an op-ed entitled "Protecting Mickey Mouse at Art's Expense." Relatedly, you can access here an article entitled "The Owners of Culture vs. the Free Agents." The title of columnist Frank Rich's op-ed today is "Joe Millionaire for President." And you can access here an op-ed entitled "The Law and the River."

The Washington Post today contains an article by Charles Lane entitled "Briefs Appear Tailored to the Justice in the Middle." By that, of course, he means Justice Sandra Day O'Connor. Here's an article entitled "Agreement on 'Diversity,' Split on Means; Bush Stance Shows Dichotomy on Race." Relatedly, this article bears the headline "Rice: Race Can Be Factor In College Admissions." An editorial in today's Post is entitled "Dishonest on Diversity." "Bush to Name Chertoff to Court: Justice Official a Key Player in Administration's Terrorism Fight" is this article's headline. Here The Post reports that "GOP Grilling of Judge in Va. Has Aura of a Trial." An editorial is entitled "Saving Wetlands." And here you can access letters to the editor on the subject of "Getting Into College."

Today's edition of The Los Angeles Times reports here that "Rice Says Race Can Be Factor on Campus; Bush aide apparently differs with president on one aspect of university affirmative action case." Here you can access an article entitled "Judgeship Possible for a Top Justice Official; A former mob buster may be nominated to a federal appeals court. And the chief of the Enron task force might succeed him." This article reports that "Vitamin Makers Lose in Court Over Potential Liability Overseas: Appeals panel rules that foreign customers can sue under U.S. antitrust law. It is the third of three recent decisions that are in conflict." Tomorrow's edition of the Book Review contains a piece entitled "How George W. Bush went from prodigal to president; Ronald Brownstein on Bush and the men behind his surprising rise to power." And you can access here letters to the editor that run under the heading "Justices Cannot Escape the Tug of Their Politics."

In The Boston Globe, Lyle Denniston reports that "US wants colleges to stress race-neutral alternatives." You can access here an article entitled "Public campuses wary of court ruling; Affirmative action case could jolt admissions." And here's an article entitled "US attorney urges life in prison term in shoe bomb case; Reid called self Al Qaeda member."

The Washington Times reports here that "Brief tells court it can skip race issue" and here that "Race, civil rights seen as Achilles' heel of Republicans." "Course on Clinton won't shun scandals," this article reports. And here's a UPI story entitled "'Blog' trend provides virtual soapbox."

The Star-Ledger of Newark, New Jersey reports here that "Bush taps Chertoff for a high-profile appeals court post." The Third Circuit judge whose seat Chertoff will been nominated to fill was, along with the Third Circuit judge for whom I clerked, one of the most politically conservative judges on the court.

Finally for now, The Philadelphia Inquirer reports here that a former law partner of mine has been named to serve as chief of staff for incoming Pennsylvania Governor Ed Rendell.
Posted at 09:22 by Howard Bashman



The opening briefs on the merits of the plaintiffs-petitioners are now available online in the University of Michigan cases: With all the justifiable hullabaloo over what the Bush Administration's amicus briefs (available here and here) would say in the two U.S. Supreme Court cases challenging the University of Michigan's use of racial preferences in student admissions, it was easy to overlook that the briefs for the plaintiffs-petitioners in those case were also filed on Thursday. Those briefs are now available online via the Web site of the Center for Individual Rights.

You can access the Brief for Petitioner in the Grutter case, involving law school admissions, at this link. You can access the Brief for Petitioners in the Gratz case, involving undergraduate admissions, at this link.
Posted at 08:35 by Howard Bashman



Fourth Circuit rules in defendant's favor on federal criminal sentencing challenge, assuming defendant lives to the age of 136 years: Thanks to Tom Goldstein of SCOTUSblog for making sure I didn't overlook this passage from an opinion that the U.S. Court of Appeals for the Fourth Circuit issued on Friday:
In other words, the convictions exposed Mackins to a total of ninety years. But the district court had determined a total offense level under the Guidelines sufficient to mandate life imprisonment. Thus, "[e]ven if the district court had not strayed beyond the statutory maximum term of twenty years' imprisonment" on the drug conspiracy count, "the court would still have been mandated, under U.S.S.G. sec. 5G1.2(d) to impose consecutive sentences in order to attain prison terms within the prescribed Guidelines range." Stokes, 261 F.3d at 501. It seems likely that an imposition of consecutive sentences totaling ninety years on the forty-six-year-old Mackins would equal or exceed the life sentence improperly imposed on him under the drug conspiracy count. But, of course, we do not know that. Accordingly, we vacate Willie Mackins' life sentence and remand for imposition of a sentence of ninety years (1080 months).
I know of few people who would wish to live to the age of 136-years-old even if they were not locked away in a federal correctional institution. The BBC reports on some really old people here.
Posted at 01:55 by Howard Bashman



Friday, January 17, 2003
Senior Eighth Circuit Judge Donald P. Lay pens passionate dissent in USA v. Frenklyn Piggie: Judge Lay's dissent concludes:
We deal here with a question of a man's liberty. If a person's liberty is unlawfully denied for one day, one month, or one year, the court commits a crime of unlawful punishment. This is not a game we play. It is true that our criminal justice system best survives under an adversarial process, but in doing so, the court should not allow this system to hide the truth and allow our trials to turn into a sporting event. On this basis we should remand the case to the district court to ascertain the truth.
You can access the complete ruling, which the court issued today, at this link.

N.B. For those who keep track of such things, this is the second post in the history of "How Appealing" to report on the ruling in a criminal appeal that involves a defendant whose last name is Piggie. Back on September 17, 2002, I reported here -- in a post entitled "Things that make you go hmm" -- on the Eighth Circuit's ruling in USA v. Myron C. Piggie.
Posted at 20:37 by Howard Bashman



Some appellate baseball: Thanks to a loyal Ohio-based reader for calling to my attention a ruling that the Ohio First District Court of Appeals issued last month. The opinion begins:
In keeping with the less than stellar history of stadium construction in Cincinnati is this lawsuit involving the Cincinnati Reds, Cincinnati, and Hamilton County. It has twisted and turned, parties have been thrown out and substituted, and none of the parties can agree on the rules of the game. The Reds, Cincinnati, Hamilton County, the taxpayer-plaintiff, and the trial court have become enmeshed in a series of procedural and legal double plays and errors. It is difficult to determine who, if anyone, is on first.

We resolve the case by calling the plaintiff out.
You can access the complete opinion (Microsoft Word document) at this link.
Posted at 20:09 by Howard Bashman



Readers from California answer my earlier question about that State's Supreme Court: One attorney for a government entity in California emails:
In answer to your question about the California Supreme Court grants of review, it is the practice of the Court in granting review to list the justices who voted for review. Hence, it is fairly easy to determine who was not interested in hearing the case. PS Keep up the good work. I have recommended How Appealing to the attorneys I supervise at [name of government entity omitted] as well as to others in private practice. Many are now confirmed addicts of your Blog.
Another California-based reader sent along some additional information:
Re your questions: "Am I the only one who considers it odd that the court announces the vote by which a case is granted review? Does the court also identify which justices weren't interested in hearing the case?"

The answer to the second question is yes. Orders of the California Supreme Court granting review identify who voted to grant review. Even orders denying review identify the justices who are "of the opinion the petition should be granted."

By the way, here's a link to the online docket for the violent poetry case, showing the names of the five justice voting to grant review. The two voting against, although not named, were Baxter and Chin--probably the two most conservative on the Court.

If a justice did not participate in deciding a petition for review, the order usually reflects such non-participation.
Thanks to these readers for so promptly responding to my recent inquiry.
Posted at 19:44 by Howard Bashman



And in this corner, representing the position of the torture-sponsoring regime of Iran: It is almost becoming an honor, rather than an obligation, to be the author of this Web log, because its readers are the most amazingly talented and knowledgeable people. Today, for example, after I posted news about the D.C. Circuit's ruling in the "Does Iran have liability to the torture victim's nieces and nephews case," I received three separate emails reminding me that I shouldn't overlook the appellate court's recognition of the law school clinic that accepted the pro bono opportunity to brief the case in support of Iran's position and whose arguments today prevailed.

The opinion states, in pertinent part:
Because Iran did not enter an appearance, the court appointed the Georgetown University Law Center's Appellate Litigation Program as Amicus Curiae to present arguments in support of the District Court's judgment.*
[fn*] * * * The Law Center's efforts to assist the court in its statutory responsibility to evaluate the appellants' claims - both the brief submitted to the court and the oral argument presented by Ms. Abigail V. Carter - have been truly outstanding, for which the court is grateful.
The first reader email that I received states:
In your blurb about the DC Circuit's opinion in the Iran case, you might have mentioned that the case was briefed and argued by a fellow (Abigail Carter) at the Georgetown University Law Center's Appellate Litigation Clinic. The opinion describes the efforts of Ms. Carter and the Clinic as "truly outstanding."

Perhaps this would be a good opportunity for you to note the invaluable work that these types of clinical programs -- and Georgetown's in particular -- do.

(Full disclosure: I am a former student of the Georgetown Appellate Litigation Clinic's, and think that its director -- Steve Goldblatt -- and its fellows deserve recognition for their work. I believe that Roy Englert, about whom you have posted in the past, is now affiliated somehow with the Clinic. Perhaps this is a sufficient hook?)

By the way, I'm a very big fan of the blog (as is almost everyone that I know).
A law clerk for a federal district judge in California emailed to say:
Hi, I thought it might be interesting to note that the brief for affirmance in the case upholding the District Court's judgment that nieces and nephews couldn't recover was written by 3Ls under the supervision of Abigail Carter (who argued the case) and Prof. Steve Goldblatt at Georgetown's Appellate Litigation Clinic ). It's not every day that law students and a clinic fellow get a fn in a DC Circuit opinion commending them on a "truly outstanding" job!

I have also have to tell you how much I enjoy your site. I know that all the former Appellate Clinic members I keep in touch with are hooked on it, especially now that we are in the real world and don't get our appellate litigation fix at school every day.
Most recently, I received the following email from someone who works at the clinic:
As an addicted reader of your blog, I almost immediately noticed your description of today's Jenco decision by the D.C. Circuit. As a lawyer working at the Appellate Litigation Program at Georgetown University Law Center, I couldn't help but compare--you didn't mention that the opinion was a 3-0 win for us, even though you plugged the U. Va. clinic (our friendly rivals) for their recent impressive win in the Fourth Circuit. As a proud colleague of the lawyer who argued the case, I wish you would point out at least that it was a win for Georgetown, or perhaps even mention the court's decision to call her brief and argument "truly outstanding" and the student-generated survey of the relevant state law "extraordinary."

Congratulations on your blog, which I very much enjoy.
So, let me now add my sincere congratulations to the Georgetown University Law Center's Appellate Litigation Clinic (about which you can learn more here) for its big win today. And I don't mean to suggest that the Clinic bears any responsibility for the bad acts of the party whose position it was requested to defend on appeal. Any time that a federal appellate court asks an advocate to file an amicus brief in support of an absent party's position, the appellate court bestows a great honor on the advocate.
Posted at 19:21 by Howard Bashman



Two-thirds of the "Buffalo Six" sought bail, but ruling issued yesterday granted bail to none of them: You can access yesterday's ruling of the U.S. District Court for the Western District of New York at this link. (Thanks, anonymity-requesting reader, for sending this along.) The Associated Press offers this report on the ruling.
Posted at 19:17 by Howard Bashman



"Ill. Court Asked to Void Some Clemencies": The Associated Press has this report.
Posted at 19:14 by Howard Bashman



In Re: Case With Exceptionally Long Caption: You simply must check out the length of the caption -- or, for my southern friends, the "style of the case" -- on this opinion that the U.S. Court of Appeals for the Fourth Circuit issued today.
Posted at 17:22 by Howard Bashman



"Rice's View on Affirmative Action Differs": The Associated Press is now reporting that "National Security Adviser Condoleezza Rice said Friday race could be a factor in selecting colleges' students, embracing a cornerstone of affirmative action that President Bush has avoided."
Posted at 16:59 by Howard Bashman



"After the copyright smackdown: What next?": Salon.com today publishes this essay by Siva Vaidhyanathan.
Posted at 16:53 by Howard Bashman



It may sound like violent poetry to their ears: The Associated Press is reporting this afternoon that "Calif. Court to Hear Violent Poetry Case." The article explains that the Supreme Court of California will hear the case after five of that court's seven justices voted to grant review.

Am I the only one who considers it odd that the court announces the vote by which a case is granted review? Does the court also identify which justices weren't interested in hearing the case?
Posted at 16:34 by Howard Bashman



Elsewhere in Friday's newspapers: "White House burns midnight oil for brief in race case," The Washington Times reports here.

Today's edition of The Los Angeles Times contains an op-ed by Charles Fried entitled "Time-Traveling to Thwart a Judge." The op-ed is harshly critical of those who oppose the confirmation of Ninth Circuit nominee Carolyn B. Kuhl. David G. Savage reports here that "High Court Urged to End Race-Based Admissions; Bush brief calls for backing of a neutral path to diversity that rewards top students." Here you can access a related article entitled "'Race-Neutral' University Admissions in Spotlight: UC, Florida and Texas systems still have diversity after dumping affirmative action." An article reporting on a Ninth Circuit decision issued yesterday is entitled "U.S. Court Bars Mexican Trucks; Ruling says a thorough review of possible environmental effects is required before Bush can invoke NAFTA and lift restrictions." For those who prefer entertainment, here's an article entitled "Verdict Is Largely Favorable for Courtroom TV; Disputes are wackier, litigants gabbier, judges sassier on the tube. And what's with the gavels?" And you can access here letters to the editor published under the heading "Bush Steps Into Admissions Debate."

The Boston Globe reports here on this Wednesday's U.S. Supreme Court oral argument in an immigration case. This article reports that the Chief Justice of the Supreme Judicial Court of Massachusetts may be under consideration to become the next Dean of the Harvard Law School. I'm sure there are plenty of law school deans who would be more than pleased to swap jobs with her. The Globe contains an editorial entitled "Bush's negative action." And columnist Derrick Z. Jackson today has an op-ed that calls President Bush "The Great Demancipator."
Posted at 15:47 by Howard Bashman



"Court Accepts Ga. Redistricting Appeal": Gina Holland of The Associated Press has this report on one of the cases that the U.S. Supreme Court has agreed to review today.
Posted at 15:46 by Howard Bashman



The Senate Judiciary Committee's Web site is now in Republican hands: You can click here to see the Committee's current membership. Let the judicial confirmations begin.
Posted at 15:02 by Howard Bashman



D.C. Circuit today decides exceptionally important appeal about the territorial reach of this Nation's antitrust laws: A divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued an opinion today in an appeal arising from the federal vitamin antitrust litigation that required the court to determine the jurisdictional reach of the federal antitrust laws under the Foreign Trade Antitrust Improvements Act. According to the opinion, this is a question over which other federal appellate courts have already divided. Circuit Judge Harry T. Edwards issued the majority opinion, in which Circuit Judge Judith Rogers joined. Circuit Judge Karen LeCraft Henderson dissented and would have endorsed the Fifth Circuit's understanding of the FTAIA.
Posted at 14:47 by Howard Bashman



Today's U.S. Supreme Court grants of review: The U.S. Supreme Court this afternoon has issued an order list that grants certiorari in two cases and notes probable jurisdiction in a third.
Posted at 14:33 by Howard Bashman



Nieces and nephews of victim cannot recover against Iran for victim's torture, D.C. Circuit rules: Today a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued a unanimous opinion that begins:
Edwards, Circuit Judge: In 1985, Father Lawrence M. Jenco, an ordained Catholic priest who was working as the Director of Catholic Relief Services in Beirut, Lebanon, was abducted by Hizbollah, the Islamic terrorist organization. Hizbollah held Fr. Jenco captive for 564 days, and subjected him to near-constant blindfolding, beatings, and psychological torture. Even after Fr. Jenco's release, he remained underweight and weak for a long period, had a changed disposition, and would suffer "flashbacks" to his kidnapping and torture. After Fr. Jenco's death, his estate and family members sued the Islamic Republic of Iran, which had "provided support, guidance, and resources to Hizbollah" in connection with Fr. Jenco's abduction. Jenco v. Islamic Republic of Iran, 154 F. Supp. 2d 27, 31 (D.D.C. 2001). The District Court upheld the claims of Fr. Jenco's estate and his six siblings, awarding over $314 million in compensatory and punitive damages for battery, assault, false imprisonment, and intentional infliction of emotional distress suffered by Fr. Jenco and for intentional infliction of emotional distress suffered by the siblings. The District Court rejected the claims of Fr. Jenco's 22 nieces and nephews, however. The nieces and nephews now appeal. We affirm the judgment of the District Court, because the nieces and nephews are not members of Fr. Jenco's immediate family. See Restatement (Second) of Torts sec. 46(2)(a).
The second to last paragraph of today's opinion states:
We are mindful that state-sponsored terrorist groups such as Hizbollah transgress all bounds of human decency through the physical and psychological torture of their hostages. However, this fact is not a license for judges to legislate from the bench. Assuming, arguendo, that appropriate parties may pursue a cause of action against a foreign state like Iran under the Flatow Amendment, and assuming further that the prevailing common law continues to mirror the requirements of sec. 46(2)(a), relief in cases of this sort will be limited to "immediate family" members. As the law now stands, the nieces and nephews of a victim have no viable basis for a third-party claim of intentional infliction of emotional distress under the statute.
You can access the complete opinion at this link.
Posted at 14:31 by Howard Bashman



Just in time for the weekend: The U.S. Court of Appeals for the Seventh Circuit today issued a forty-nine page opinion about nude dancing. The question presented is whether an ordinance that disallows the sale of alcoholic beverages on the premises of an establishment offering nude dancing violates the First Amendment rights of dancers and the establishment.

As Circuit Judge Daniel A. Manion's opinion for the unanimous three-judge panel explains:
While the question presented is rather straightforward, the issue is significantly complicated by a long series of Supreme Court decisions involving the application of the First Amendment in the adult entertainment context. Because these decisions establish the analytical framework under which we must operate, our analysis necessarily begins with a comprehensive summary of the Supreme Court's jurisprudence in this area.
You can access the court's ruling at this link.
Posted at 13:45 by Howard Bashman



"Pryor's reputation eyed; Inquiries standard for judicial nominees": And let's not overlook this report from The Birmingham News regarding a potential nominee to the U.S. Court of Appeals for the Eleventh Circuit.
Posted at 13:29 by Howard Bashman



"Bush to Pick Chertoff for Appeals Court": Coming soon to the U.S. Court of Appeals for the Third Circuit. The Associated Press has this report, which contains what I would describe as excellent news for the Third Circuit.
Posted at 13:25 by Howard Bashman



In Friday's newspapers: The Washington Post reports here that "National security adviser Condoleezza Rice took a rare central role in a domestic debate within the White House and helped persuade President Bush to publicly condemn race-conscious admissions policies at the University of Michigan, administration officials said yesterday." Another article reports that "Race-Neutral Plans Have Limits In Aiding Diversity, Experts Say." You can access here an article entitled "House Makes a Plea To Keep BlackBerrys." For the record, I too would be adrift without my BlackBerry.

In The New York Times, Neil A. Lewis reports that "U.S. Says Michigan System Amounts to 'Racial Quota.'" Linda Greenhouse was burning the midnight oil in drafting this news analysis entitled "White House Brief Takes Cautious Stand in Race Case." Relatedly, here's an article entitled "Different Means to Campus Diversity." Scott Turow has an op-ed entitled "Clemency Without Clarity." And Steven Greenhouse reports here that "U.S. Court Bars Mexican Trucks Pending an Environmental Study."

Finally for now, The Christian Science Monitor sat down for breakfast with Kate Michelman, so now you won't have to.
Posted at 00:22 by Howard Bashman



BREAKING NEWS -- The U.S. Government's amicus briefs in the University of Michigan racial preferences in student admissions cases are now available online: Access the Grutter law school admissions brief here, and the Gratz undergraduate admissions brief here.

Here's a key passage from the U.S. Government's amicus brief in the Grutter case: "In the final analysis, this case does not require this Court to break any new ground to hold that respondents' race-based admissions policy is unconstitutional." And The Associated Press now offers this early report on the federal government's amicus briefs.
Posted at 00:15 by Howard Bashman



Thursday, January 16, 2003
Wow! PBS's Media Matters program is a very impressive show -- all of it, not just the final segment, which happened to be about Web logs and bloggers. But even the segment on bloggers qualified as most wonderful. It was great to see Glenn Harlan Reynolds on TV, even if he appeared to be the most tense of the bloggers interviewed. (Of course, we already knew that he was the most intense.) Also amusing (albeit annoying and distracting) was the fact that the backdrop for most of the interview segments for all four featured bloggers was a scrolling computer screen featuring a black background blog with white text. The alphabetical beginning of InstaPundit's "Pure Bloggers" links must have scrolled by during the segment between five to ten times, so people who tape record or TIVO the program will probably get to see my name, Stuart Buck's name and Jeff Cooper's name (along with the names of most everyone in between) scrolling by in the background numerous times. And that plus sixty cents will buy me a small box of Junior Mints in the lobby of my office building.

By the way, it's hard to watch the Media Matters segment about bloggers without developing much admiration for Oliver Willis.
Posted at 23:55 by Howard Bashman



"Diversity not limited to race, 2 women say": Today's edition of The Chicago Tribune contains this very interesting report on the two women who are the plaintiffs-petitioners in the University of Michigan racial preferences in student admissions cases. And here, Howie Kurtz describes those cases as presenting "The Issue Bush Couldn't Finesse."

Now, if you'll excuse me, I must go and watch some bloggers on TV.
Posted at 22:57 by Howard Bashman



"Roe v. Wade, Then v. Now": The Village Voice takes a look, here.
Posted at 22:46 by Howard Bashman



Available online at law.com: Shannon Duffy reports here that "3rd Circuit Reaffirms Overturned Death Sentence." This article reports that "School Voucher Suits Hitting States." This article will make you wonder whether President Bush will care for Senator Charles E. Schumer's proposed federal court nominees more than Schumer has cared for Bush's. Here you can access an article entitled "Florida's Sexual Predators Law Tossed Out." Read about a recent Second Circuit ruling in this article captioned "Employers Can Deny Coverage for Infertility Treatments." Finally, a linguist from Stanford University advises here that "If you think a dictionary is the final authority on the meaning of words, you're wrong."
Posted at 22:31 by Howard Bashman



One can't predict what the sex industry will be like in forty years, but at least the Fifth Circuit knows what the Second Amendment means: Fifth Circuit Judge Jerry E. Smith, who simply doesn't know how to write an uninteresting opinion, yesterday issued an opinion on behalf of a unanimous three-judge panel in a case that offered a little bit of everything: kidnapping, carjacking, sex offenses, circuit splits, the rule of lenity, the Second Amendment, and an inability to predict what the sex industry will be like in forty years. On that last point, given what the sex industry is like today, even I would hate to guess at what another forty years will bring.

And in case anyone has forgotten that the Fifth Circuit previously ruled that the Second Amendment guarantees an individual right to bear arms, the opinion notes: "Many citizens exercise their Second Amendment rights, United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 122 S. Ct. 2362 (2002), by routinely using, carrying, or possessing a firearm, and sec. 924(c)(1) obviously does not prohibit that law-abiding conduct."
Posted at 22:05 by Howard Bashman



"NARAL Head Predicts Delay for Nominees": The Associated Press offers an article this evening that begins, "The head of a prominent abortion rights organization on Thursday predicted a Senate filibuster if President Bush seeks to fill a future Supreme Court vacancy with a nominee who does not clearly support the court's 1973 ruling on the issue."
Posted at 21:58 by Howard Bashman



Ten co-conspirators: The Volokh Conspiracy today named its tenth contributor (assuming, as I don't, that the other nine are actually nine different people). It remains to be seen whether David will post more frequently than Michelle, Todd, Erik (under his own name), or Stuart.
Posted at 21:53 by Howard Bashman



If it's briefs you want: In addition to everything that makes SCOTUSblog so wonderful on the merits, they've also got bandwith galore over there. (No, Bandwith Galore was not some lovely James Bond character from way back when.) Thanks to a good friend whom Tom Goldstein and I have in common, both petitioners' opening brief on the merits and an amicus brief joined in by a quite distinguished group of history professors in Lawrence v. Texas, the case challenging that State's ban on homosexual sodomy, are now available online.

In the University of Michigan racial preferences in student admissions cases, readers have been inundating me with amicus briefs. Unfortunately I don't have bandwith galore, but I've been making sure that SCOTUSblog also has all the briefs that I've been receiving. The National Association of Scholars filed two very interesting amicus briefs authored by Covington and Burling, and you can access them via this post at SCOTUSblog.
Posted at 21:02 by Howard Bashman



Fourth Circuit reinstates fascinating free press federal civil rights claim: A unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit today reinstated a fascinating federal civil rights claim alleging that a candidate for local office and his friend, the sheriff, engineered the purchase on election day of every copy of a local newspaper that had been harshly critical of them in the past and was especially critical of them in its election day issue.

Anyone who questions whether Fourth Circuit Chief Judge J. Harvie Wilkinson III -- a former newspaperman himself -- is one of the best writers and thinkers in the federal judiciary need only consult his opinion today in this case for confirmation. Chief Judge Wilkinson's opinion concludes:
The incident in this case may have taken place in America, but it belongs to a society much different and more oppressive than our own. If we were to sanction this conduct, we would point the way for other state officials to stifle public criticism of their policies and their performance. And we would leave particularly vulnerable this kind of paper in this kind of community. Alternative weeklies such as St. Mary's Today may stir deep ire in the objects of their irreverence, but we can hardly say on that account that they play no useful part in the political dialogue. No doubt the public has formed over time its opinion of the paper's responsibility and reputation. If defendants believed its attacks to be scurrilous, their remedy was either to undertake their own response or to initiate a defamation action. It was not for law enforcement to summon the organized force of the sheriff's office to the cause of censorship and dispatch deputies on the errands of suppression in the dead of night.
You can access today's ruling at this link.
Posted at 19:04 by Howard Bashman



It simply ain't gonna happen: The organization Americans United for Separation of Church and State has issued a press release that begins:
Supreme Court Justice Antonin Scalia should recuse himself from future church-state cases that reach the high court in light of remarks he made in Virginia on Jan. 12, says Americans United for Separation of Church and State.
You can access the press release at this link.
Posted at 17:25 by Howard Bashman



On issue of racial preferences, President of University of Michigan disagrees with President of the United States of America: You can access yesterday's written statement by University of Michigan President Mary Sue Coleman at this link.

And while I'm on the topic, be sure to see Roger Clegg's essay today at National Review Online, and David Frum's Diary too.
Posted at 17:05 by Howard Bashman



"By recycling Pickering, Bush resurrects Lott": So argues syndicated columnist Ruben Navarrette Jr. in today's edition of The Seattle Times.
Posted at 16:56 by Howard Bashman



Mark Fiore draws cartoon opposing the death penalty: You can access the latest installment of his animated cartoon at this link.
Posted at 16:44 by Howard Bashman



Second Circuit panel declines to rehear appeal in which the court reversed decision declaring federal death penalty unconstitutional: The rehearing petition that two criminal defendants facing the federal death penalty filed appears to have asserted that the Second Circuit panel misunderstood both the trial court's ruling and the defendants' arguments on appeal in support of that ruling. The Second Circuit today rejected both assertions in support of reconsideration.
Posted at 15:15 by Howard Bashman



Ninth Circuit holds that compliance with NAFTA's requirements does not justify violating federal environmental law: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion that begins:
Petitioners challenge the Department of Transportation's failure to conduct the requisite environmental analyses prior to promulgating three regulations, the combined effect of which will permit Mexico-domiciled motor carriers to operate within the United States beyond the current limited border zones, thus fulfilling the United States' obligations under the North American Free Trade Agreement. Upon completion of a preliminary Environmental Assessment for two of the three regulations, the Department of Transportation decided that there was no need for further environmental analysis. Petitioners claim that the Department of Transportation's failure to prepare an in-depth Environmental Impact Statement for all three regulations violates the National Environmental Policy Act of 1969, and that its further failure to conduct a "conformity determination" to ensure that the regulations do not disrupt applicable State Implementation Plans violates the Clean Air Act. Although we agree with the importance of the United States' compliance with its treaty obligations with its southern neighbor, Mexico, such compliance cannot come at the cost of violating United States law. Because we conclude that the Department of Transportation acted without regard to well-established United States environmental laws, we grant the petitions.
You can access the complete opinion at this link.
Posted at 13:56 by Howard Bashman



Today's the day: In the University of Michigan racial preferences in student admissions cases, today's the deadline by which the opening merits briefs of the petitioners and amicus curiae briefs supporting the petitioners must be filed.

In news from Michigan, The Michigan Daily reports here that "Bush voices opposition to 'U' policies, declares support for diversity" and here that "CIR to file brief with Supreme Court today." The Detroit News contains an article entitled "Bush opposes U-M affirmative action: President will tell the Supreme Court that he favors other ways to achieve racial diversity." The Detroit Free Press reports here that "U-M racial policy unfair, Bush says; Admissions system faces new opponent before high court." And in an article that bears a rather odd headline, The Ann Arbor News reports that "Bush attacks U-M policy; Opposition to U-M's affirmative action policy sparks national conversation but will probably have little effect on justices."

Lastly for now, today's edition of The New York Post contains an editorial entitled "The Content of W's Character" that praises the White House's position on the Michigan cases.
Posted at 13:10 by Howard Bashman



"University of Texas Minorities Drop": The Associated Press today offers an article that begins, "Minority enrollment at the University of Texas flagship Austin campus is still lower than it was years ago, before a court barred the consideration of race in admissions."
Posted at 12:48 by Howard Bashman



Senators serving on the Senate Judiciary Committee in 2003: You can access here a post on the Greedy Clerks Board showing the Republican U.S. Senators who will be serving on the Senate Judiciary Committee in 2003. Senator Maria Cantwell (D-WA) is the one Democratic Senator who is departing from the committee, according to this article from The News Tribune of Tacoma, Washington.
Posted at 12:21 by Howard Bashman



Sixth Circuit panel splits over whether a "marijuana blunt" spotted across the room in an ashtray gives rise to probable cause to search motel room: You can access yesterday's ruling of the U.S. Court of Appeals for the Sixth Circuit at this link.
Posted at 12:04 by Howard Bashman



Just because courtroom security is imperceptible doesn't mean it's not there: After jurors in a federal drug distribution trial taking place in Hawaii expressed concern about their safety due to "the intimidating appearance of some of the spectators in the courtroom," the trial judge instructed the jury that just because it didn't seem like adequate security was present didn't mean that in fact adequate security was not present. Yesterday the U.S. Court of Appeals for the Ninth Circuit, in an opinion you can access here, affirmed the defendant's conviction and the trial court's handling of the jury's concerns.
Posted at 11:58 by Howard Bashman



"Bush Plays Middle on Affirmative Action": The Associated Press offers this report.

Meanwhile, a reader from Michigan with a ".mil" email address writes to ask how quickly the Bush Administration's brief in the Michigan cases will be available online. I expect to see the brief available online sometime tomorrow at the latest.
Posted at 10:09 by Howard Bashman



In news from Florida, "State's sex-predator law overturned": The Miami Herald provides this report. Update: You can access the court's ruling at this link.
Posted at 10:05 by Howard Bashman



Ernie the Attorney discusses my analysis of the Eldred ruling: You can access Ernie's very interesting blog post at this link.
Posted at 07:13 by Howard Bashman



Elsewhere in Thursday's newspapers: In The Los Angeles Times, David G. Savage reports here that "Justices OK Copyright Extension." Here you can access an article entitled "Entertainment Industry Breathes Sigh of Relief Over Court Action." This article reports that "Disney Wins Big in Battle to Keep Company Icons." In other news, "Bush Opposes Diversity Policy at University: President directs his staff to join the fight against the Michigan program, which the Supreme Court will review this spring." Today, by the way, is the deadline for the federal government to file its amicus brief in the Michigan cases. An article you can access here reports "A state appeals court on Wednesday upheld the constitutionality of a California law that allows World War II victims of forced labor in foreign countries to sue for compensation in state court. The ruling by a three-judge panel conflicts with a decision by a federal judge who found that the law infringes on the U.S. government's exclusive power over foreign affairs." A report from Fairfax, Virginia is entitled "Teen Accused in Sniper Killings to Be Tried as Adult, May Face Death." In news from Washington, DC, "Bush Back in Malpractice Debate: President will renew the argument that limits on lawsuit payouts will curb medical costs." And The LATimes runs several letters to the editor under the caption "Pickering's Nomination Gets a Second Chance."

The Washington Times reports here that "President hits race policy." You can access here an article entitled "High court upholds law extending copyrights." And "Malvo faces trial as adult," this article reports.

USA Today contains a front page article entitled "Bush says university uses race 'unfairly'; But president favors diversity on campus." Joan Biskupic has two articles in today's paper. Here she reports that "Justices defer to Congress' power to extend copyright," and here, "White House says target is quotas, not diversity; Court brief shies from '78 decision." In an editorial, the newspaper considers "Affirmative Action." This week's edition of The Onion includes a blurb entitled "30th Anniversary Of 1973 Commemorated." Apropos of that observation, USA Today contains an article captioned "Abortion battle hits pivotal point; Defenders, foes prepare for renewed clash."

In The Boston Globe, Lyle Denniston reports that "Justices uphold copyright extension." This article notes that "Bush calls admissions policy divisive; Opposes Michigan's affirmative action." And in other news from Washington, "Bush wants cap on malpractice awards."
Posted at 06:47 by Howard Bashman



And speaking of "limited times": Due to time constraints, I haven't yet had a chance to mention some interesting U.S. Court of Appeals rulings that issued on Wednesday. So stay tuned for that.
Posted at 00:52 by Howard Bashman



In Thursday's newspapers: The New York Times reports here that "President Faults Race Preferences as Admission Tool." Relatedly, this article reports that "With His Eye on Two Prizes, the President Picks His Words Carefully." Linda Greenhouse reports here that "20-Year Extension of Existing Copyrights Is Upheld." You can access here a news analysis entitled "A Corporate Victory, but One That Raises Public Consciousness." The Times also contains an editorial which states that "The court's decision may make constitutional sense, but it does not serve the public well." Linda Greenhouse's other article today is entitled "Medical Leave Act Is Debated in Major Federalism Case." That case has also spawned an editorial. This article reports that "Judge Is Angered by U.S. Stance in Case of 'Dirty Bomb' Suspect." The death penalty remains a possibility, according to this article entitled "Teenager in Sniper Case Will Be Tried as Adult." Finally, the Senate Judiciary Committee can begin operations under Republican control now that "Parties Reach a Deal on Senate Committees."

In The Washington Post, you can access here an article entitled "Bush Joins Admissions Case Fight." Charles Lane reports here that "Court Upholds Copyright Extension" and here that "Bush Backs Family Leave Provisions; High Court Urged to Allow Damages for State Workers in Test of Sovereignty." This front page article reports that "Malvo Can Be Tried as Adult: Ruling Makes Sniper Suspect Eligible for Death Sentence." Finally, in news from Virginia, you can access here an article entitled "Va. Confirmation Delay Sparks Concern Over Judicial Independence."
Posted at 00:27 by Howard Bashman



"With Incessant Postings, a Pundit Stirs the Pot": You can access here today's New York Times article about Glenn Harlan Reynolds.
Posted at 00:18 by Howard Bashman



Not too bad: "How Appealing" yesterday had 8,554 page visits, the second highest number of daily visits in this Web log's history. As a result, this blog will be receiving its 500,000th visit any moment now.
Posted at 00:09 by Howard Bashman



Wednesday, January 15, 2003
Available online at law.com: Tony Mauro reports here that "Supreme Court Upholds Copyright Extension" and here that "FMLA Case at High Court Sparks Federalism Debate." Meanwhile, this article, entitled "Judge Blasts Feds Over Enemy Combatant Case," suggests that Deputy Solicitor General Paul Clement would have much preferred to have spent the day at the U.S. Supreme Court's podium than at the podium where he actually was.
Posted at 23:53 by Howard Bashman



U.S. Supreme Court round-up for January 15, 2003: Before we kick-off tonight's round-up, a quick question for the audience. Who among you -- excluding readers who work at the U.S. Supreme Court -- expected additional opinions to issue today? Me neither. But just when we least expect it, the Court goes ahead and issues one of the Term's most anticipated business cases and a Coal Act case that few readers of "How Appealing" are likely to remember two days from now. Moving ahead to tonight's quiz: Which U.S. Supreme Court Justice has yet to issue any opinion this Term, whether majority, concurring, dissenting, or other? Give up? The answer is Associate Justice Anthony M. Kennedy. He must be working on something quite special, so stay tuned.

Ashcroft trounces Eldred as "limited Times" is construed to mean the opposite of "a period of time with no specified limit whatsoever": On some level I envy those people who view Eldred v. Ashcroft as one of the most significant and/or fascinating legal disputes of all time. Due to an unspecified character flaw, to me it's just another case involving questions presented and "the law." But if indeed I don't view Eldred as an extraordinary case, today I find myself in good company, because seven Justices serving on the Supreme Court of the United States seem to share my view. In Eldred v. Ashcroft, No. 01-618 (U.S. Jan. 15, 2003), the Supreme Court ruled 7-2 that Congress violated neither the U.S. Constitution's copyright clause nor the First Amendment when Congress in 1998 enlarged the duration of copyrights by twenty years.

The majority opinion, written by Justice Ruth Bader Ginsburg, did not view this as a close case at all. The Constitution's copyright clause requires only that copyright's last for a limited time. Under the 1998 law, copyrights remain in existence for a "limited" time, even if that time is longer than ever before. In determining that "limited" indeed meant the opposite of "perpetual," Justice Ginsburg consulted dictionaries from both 1796 and 1976. For readers who suffer from dyslexia, those two dates are 180 years apart. Of course, if Congress had passed a statute expressly providing that copyrights lasted forever -- a period that contained no limit -- then the copyright clause would be violated, but that is not exactly what happened here. And Justice Ginsburg wrote that Congress clearly has the power to extend the term of copyright applicable to existing works, as our Nation's history reflects.

The Court easily disposed of Eldred's First Amendment challenge, explaining that "copyright's limited monopolies are compatible with free speech principles." While Professor Jack Balkin is full of gloom and doom about the First Amendment aspect of today's ruling, the passage of time should prove his concerns to be greatly overblown.

Those who had hoped or even expected that Eldred would win this case have got to be disappointed with the content of the dissenting opinions that the case produced. Justice Ginsburg's majority opinion contained a footnote (perhaps drafted by Justice Antonin Scalia's clerks) that described Justice Stephen G. Breyer's dissenting opinion as containing "abundant policy arguments but precious little support from precedent." With respect to Justice John Paul Stevens' dissenting opinion (which I frankly had a difficult time following the logic of), Justice Ginsburg's majority opinion contains a footnote (also perhaps drafted by Justice Scalia's clerks) that asserts, "Nothing but wishful thinking underpins that assertion." In another footnote, Justice Ginsburg may have become the first U.S. Supreme Court Justice to cite to an article published in Green Bag 2d.

Justice Breyer's dissenting opinion is a true policy tour de force, as the majority opinion notes. Justice Breyer proves in the dissent that he would be deserving of a seat on the U.S. Copyright Term Commission (a Sentencing Commission equivalent, but for copyrights) if one is ever created. Law students and those studying for the bar will be pleased to know that Justice Breyer's dissent makes mention of the rule against perpetuities. And it also contains this strange sentence: "At the very least, (if I put aside my rationality characterization) to ask B to support A here is like asking Tom Thumb to support Paul Bunyan's ox." Anyone who reads either of today's two dissenting opinions should understand why no other Justices joined in either one.

In closing, I wish that I were among the legions of pro-Eldred crusaders who seem to occupy the Web in such great numbers, because then I could better understand the disappointment and passion that today's ruling has occasioned. But, as an appellate egg-head, I see a 7-2 trouncing in which the Court quite obviously appears to have reached the correct result under "the law," passion be damned.

Coincidentally, the Coal Act's limited time provision doesn't seem to mean very much either: Today's Coal Act case, Barnhart v. Peabody Coal Co., No. 01-705 (U.S. Jan. 15, 2003), tests the limits of the proposition that whenever the Court produces a decision with a majority opinion by Justice David H. Souter and a dissenting opinion by Justice Antonin Scalia, the decision is worth a read.

The Coal Act specified a deadline by which the Commissioner of Social Security had to assign each coal industry retiree eligible for benefits under the Act to an existing signatory operator, which would then be responsible for funding the retirees' benefits. Due to lack of appropriations and the sheer difficulty of the endeavor, the Commissioner of Social Security fell approximately 10,000 beneficiaries shy of meeting the deadline. Today the Supreme Court had to determine whether the existence of a deadline meant that the Secretary couldn't finish making assignments after the deadline had passed. If so, that would have caused unassigned beneficiaries to have had their benefits paid for by sources less directly responsible for creating those liabilities.

Making the best of a bad situation, the Court ruled 6-3 in an opinion by Justice Souter that the specification of a deadline did not imply that the Secretary was powerless to continue making assignments after the deadline expired, if necessary. The majority opinion concludes:
The way to reach the congressional objective, however, is to read the statutory date as a spur to prompt action, not as a bar to tardy completion of the business of ensuring that benefits are funded, as much as possible, by those identified by Congress as principally responsible.
Justice Souter's majority opinion is noteworthy for the extraordinary length of certain of its footnotes. Page nine of the majority opinion consists of nothing but a footnote that begins on page eight and ends on page ten. A footnote that concludes on page 12 ends with the following paragraph:
There is a basic lesson to be learned from Justice Scalia's contortions to avoid the untoward results flowing from his formalistic theory that time limits on mandatory official action are always jurisdictional when they occur in an authorizing provision. The lesson is that something is very wrong with the theory.
You can almost feel the love, can't you?

Justices Sandra Day O'Connor and Clarence Thomas joined in Justice Scalia's dissent, and Justice Thomas wrote a short additional dissent of his own. The main point of Justice Scalia's dissent was that if a statute provides that the Commissioner of Social Security "shall" do something by a specified deadline, the statute does not allow the Commissioner additional time beyond the deadline to finish the task. Had Congress so intended, it would have used some other word than "shall." The majority's response, of course, was that this controversy presents the "case unprovided for" exception to the maxim of expressio unius, exclusio everything else-ius. (Oddly, though, while the majority applies such an exception, it simultaneously disclaims the exception's existence in footnote 12, which begins on page 19.)

[Update: I had meant to mention here that Justice Scalia's dissent uses the example of a landowner who authorizes someone to cut down trees before a specified deadline. I'm quite sure that Justice Scalia wasn't intending to bring to mind a tree-cutting controversy (more details available here and here) that recently enveloped a certain senior judge serving on the Ninth Circuit.]

The Court's ruling reversed two non-precedential opinions of the U.S. Court of Appeals for the Sixth Circuit. The Sixth Circuit's rulings were contrary to rulings from the Third and Fourth Circuits, which had both correctly anticipated how the Court ended up ruling today.

There may be yet other "limited times" cases pending on the Court's docket this Term, but two such cases (including perhaps the most important of the genre) today moved from the "pending" to the "decided" column. Meanwhile, I can't help but think that I'm not the only Supreme Court-watcher for whom the March 2003 oral argument session can't get here soon enough.
Posted at 22:24 by Howard Bashman



Glenn Harlan Reynolds gets paid money to blog less: Have liberals finally found a feasible strategy to silence him?
Posted at 21:15 by Howard Bashman



The White House has announced three U.S. District Court nominations today: Details are available here.
Posted at 20:43 by Howard Bashman



"High Court Upholds Law Extending Copyrights by 20 Years": Linda Greenhouse has this report.
Posted at 20:41 by Howard Bashman



Chris Suellentrop of Slate assesses the Illinois death penalty commutations: His essay is entitled "George Ryan: How corruption, fraud, and cronyism taught him to hate the death penalty."
Posted at 20:37 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Bush Leaves Room for Affirmative Action"; here, "Court Case Tests Limits of Family Leave"; here, "Teen Sniper Suspect Can Be Tried As Adult"; here, "Former Ill. Gov. Ryan Appears on Oprah"; and here, "Surgery Tools Left in 1,500 People a Year."
Posted at 20:35 by Howard Bashman



Dahlia Lithwick reports on today's U.S. Supreme Court oral argument about whether the Family Medical Leave Act applies to States as employers: You can access her account -- entitled "Scalia Hogs the Ball; Supreme Court oral argument as a solo sport" -- at this link.
Posted at 20:30 by Howard Bashman



"Supreme Court Upholds Longer Copyrights": Charles Lane of The Washington Post has this report. Hmm, I wonder if Larry Lessig's Web log received mention in Chuck's article?
Posted at 17:16 by Howard Bashman



"Court Debates Law on Jailing Immigrants": Gina Holland has this report on one of the cases argued at the U.S. Supreme Court today.
Posted at 17:05 by Howard Bashman



"Remarks by the President on the Michigan Affirmative Action Case": A transcript of President Bush's remarks delivered just half an hour ago is now available online here.
Posted at 17:01 by Howard Bashman



"Bush Administration Denounces 'Quotas'": The Associated Press offers this report. Additionally, you can access today's White House press briefing at this link.

At the risk of belaboring the obvious, the announcement that the Bush Administration will be opposing the University of Michigan's use of racial preferences in student admissions does little to reveal precisely what position the administration will be urging the U.S. Supreme Court to adopt. And all reports indicate that the White House may still be in the process of figuring out exactly what position it will take. Appellate advocates hold in special regard those clients who are still trying to make up their minds about what position to take in an appeal on the day before the appellate brief is due to be filed.

Update: It looks as though this story is continuing to unfold even as I was typing up my original post. The AP is now reporting that "Bush Says Mich. Plan Unconstitutional." And here The AP reports "GOP Sending Mixed Signals to Blacks."
Posted at 16:46 by Howard Bashman



"Texas Debates Taped Jury Deliberations": The Associated Press provides this report, which includes word that "One judge questioned whether it would turn the process into 'reality TV, like "Survivor."'" Would a show about whether someone deserves the death penalty make for riveting reality TV? My guess is that we aren't about to know soon, because the Texas Court of Criminal Appeals is likely to reverse the trial court's ruling that would allow jury deliberations in a teenager's death penalty case to be recorded by PBS's Frontline program.
Posted at 16:22 by Howard Bashman



Online from The New York Times: In a recently-updated article, reporter Neil A. Lewis writes that "President Bush has asked administration lawyers to present him with a brief arguing that the University of Michigan's programs for using race in admission decisions go too far, officials say." And David Stout has an article entitled "High Court Upholds Law Extending Copyrights by 20 Years." (Hmm, does Stout's article suggest that Linda Greenhouse has the day off?)

Update: A reader who probably spends more time observing The New York Times' Web page than I do emails to say that "David Stout" serves the role of intervenor between an Associated Press report and a full-blown article by a more well-known reporter, say Linda Greenhouse, for example. We shall see.
Posted at 15:30 by Howard Bashman



Georgetown Law Professor Richard H. Chused chats live about today's Eldred ruling: Just minutes away here, via The Washington Post. Update: The chat has now concluded, but the transcript remains at the link provided above.
Posted at 14:29 by Howard Bashman



"Court Preserves Coal Miners' Benefits": The AP gives a shout-out to today's other, less newsworthy U.S. Supreme Court ruling.
Posted at 14:23 by Howard Bashman



An unenviable task: Donna Wentworth of the Copyfight blog has taken on the unenviable task of compiling Web-based commentary concerning today's ruling in the Eldred case. Good luck, Donna!
Posted at 14:19 by Howard Bashman



A report on yesterday's False Claims Act - local government U.S. Supreme Court oral argument: Available here, via The Associated Press.
Posted at 14:16 by Howard Bashman



Classic first lines of a dissenting opinion: Courtesy of Senior Circuit Judge Myron H. Bright of the U.S. Court of Appeals for the Eighth Circuit, whose dissent today begins:
It is said that a judge writes a dissent when the sense of outrage exceeds his feelings of inertia. Here I dissent with strong feelings as I harbor little doubt that the majority is clearly wrong on both the law and the facts.
You can access both the majority opinion and Judge Bright's dissent at this link.
Posted at 12:40 by Howard Bashman



New and improved: SCOTUSblog, now featuring discussion boards. My only words of advice: behave yourselves, people!
Posted at 12:19 by Howard Bashman



It's official: The U.S. Supreme Court's Web site now has available for download the official version of today's ruling in the eagerly-awaited matter of Eldred v. Ashcroft. And for Coal Act enthusiasts, don't overlook today's 6-3 ruling in Barnhart v. Peabody Coal Co.

I will provide a complete wrap-up of both rulings tonight.
Posted at 12:07 by Howard Bashman



What if Yale Law School Professor Jack M. Balkin had his own blog? Chances are it would look something like this.
Posted at 12:03 by Howard Bashman



Big tobacco suffers potentially big loss in Europe: Thanks to a readership that literally spans the globe, I am pleased to report news of a significant ruling today by the Court of First Instance of the European Communities. The Court issued the following press release about today's decision:
As part of the European Community's efforts to combat the smuggling of cigarettes into the Community, in November 2000 the Commission brought, on behalf of the Community, a civil action before a federal United States court (United States District Court, Eastern District of New York) against several companies belonging to the Philip Morris and Reynolds groups, and against the company Japan Tobacco.

The Community alleged involvement on the part of those companies in a system of smuggling aimed at bringing cigarettes into the territory of the Community and distributing them there, and asked for compensation for the loss resulting from the smuggling, consisting mainly in lost customs duties and value added tax (VAT) which would have been paid on legal imports.

Following dismissal of those claims, the Commission and 10 Member States brought a fresh action in August 2001, founded on other bases of claim. This was also dismissed, on the grounds that United States courts refrain from enforcing the tax legislation of other States, following which the Commission filed an appeal before the United States Court of Appeals for the Second Circuit.

The cigarette manufacturers asked the Court of First Instance of the European Communities to annul the Commission's decisions to bring the actions before the District Court. Eight Member States and the European Parliament intervened in support of the Commission.

In its judgment, the Court of First Instance states, first, that only measures the effects of which are binding on, and capable of affecting the interests of, a party by bringing about a distinct change in his legal position may be the subject of an action for annulment.

Do the decisions to bring proceedings before the District Court produce such effects for the cigarette manufacturers?

The Court of First Instance states that the decision to bring legal proceedings does not by itself alter the legal position in question. The obligations of the parties can be definitively established only by judgment of the United States courts in the civil actions brought by the Commission. Accordingly, the decisions to bring proceedings before those courts cannot be held to be decisions which are open to challenge.

It concludes, however, that the need for effective judicial protection is not undermined by the dismissal of the actions for annulment because the cigarette manufacturers are not thereby denied access to Community courts. This is because conduct which cannot be the subject of an action for annulment may none the less, subject to certain conditions, entail non-contractual liability for the European Community and the possibility of bringing an action before the Community courts to obtain compensation for loss caused by the conduct remains open, as provided for by the Treaty.

By today's judgment, the Court of First Instance dismisses as inadmissible the actions brought by Philip Morris, Reynolds and Japan Tobacco.

Thus, these cigarette manufacturers cannot prevent the Community from continuing the legal proceedings brought by it before courts in the United States. It will be for the United States courts to determine the outcome of the proceedings.
You can access the Court's ruling in English at this link.
Posted at 11:42 by Howard Bashman



Larry Lessig may not have won the case, but he did win the race to be the first to post the opinions online: You can access Justice Ruth Bader Ginsburg's majority opinion here, Justice John Paul Stevens' dissenting opinion here, and Justice Stephen G. Breyer's dissenting opinion here.
Posted at 10:48 by Howard Bashman



BREAKING NEWS -- U.S. Supreme Court upholds Copyright Extension Act: Gina Holland of The Associated Press has this report on the Court's 7-2 ruling.
Posted at 10:39 by Howard Bashman



What's new at "How Appealing"? If today's January 15, 2003, then I've just dispatched via email my first installment of "20 questions for the appellate judge" to the federal appellate judge who was the first to volunteer to take part in that new feature. At the risk of unrealistically heightening your expectations, the questions have turned out great (they even include one suggested by a reader of this blog, with other suggestions to be saved for later months), and I'm sure the answers will be even better. The first installment of the feature will appear here on February 3, 2003, when the identity of the first participant will be revealed. So far, three federal appellate judges and one justice serving on a state court of last resort have volunteered to take part, leaving just seven more interview slots open through the end of 2003.

In other news, before the end of this week, "How Appealing" will experience its 500,000th page view according to the Bravenet hit counter on display at the bottom of the links that appear in the left-hand column of this blog. That's half a million page hits since May 6, 2002. On Monday of this week, this blog experienced 6,364 page views, and yesterday's number was 6,410. And those numbers are consistent with the traffic this blog typically receives on a weekday. Thanks for visiting everyone!
Posted at 10:34 by Howard Bashman



Did you know? Law Professor Eugene Volokh is an "anti-egghead"? So claims Hugh Hewitt in this essay posted today at The Weekly Standard's Web site.
Posted at 10:28 by Howard Bashman



Today's edition of The Philadelphia Inquirer forgets the court on which federal judge Marjorie O. Rendell is now serving: The Philadelphia Inquirer today contains an article that begins:
It appears that U.S. District Court Judge Marjorie O. Rendell has one once-in-a-lifetime gown too many.

Refusing to take part in the no-leftovers approach to dressing up, Pennsylvania's incoming first lady is taking a stand for fashionistas everywhere. Midge Rendell - gasp! - will wear a recycled dress Tuesday night to her husband Ed's inaugural ball.
Contrary to The Philadelphia Inquirer's report, Marjorie O. Rendell currently serves (and has served since 1997) as a Circuit Judge on the U.S. Court of Appeals for the Third Circuit.
Posted at 07:39 by Howard Bashman



News and commentary about federal judicial nominations: "Convicted cross-burner says he, Pickering are victims of politics," The Clarion-Ledger reports here. The Clarion-Ledger also offers an op-ed entitled "Bush nod to judge critical for state vote." An editorial in Newsday is entitled "Bush Plays Political Hardball in Renaming Pickering." "Bush sees win-win situation in choice for bench," according to this article from The Philadelphia Inquirer. And The Weekly Standard contains an essay entitled "Judge Pickering, Arlen Specter, and more."

The Tampa Tribune contains an editorial entitled "Bush Is Right To Renominate His Choices For Federal Bench." The Detroit News contains an editorial captioned "Give Judges a Fair Hearing." And The St. Paul Pioneer Press contains an op-ed entitled "Politics will inevitably be a part of judicial selection."
Posted at 07:17 by Howard Bashman



Elsewhere in Wednesday's newspapers: USA Today contains a front page article entitled "White House to oppose Michigan policy of race-based admissions." Joan Biskupic reports that "Justices consider law opening HMOs to all qualified doctors." Looking ahead to an oral argument that the U.S. Supreme Court has scheduled for today, Ms. Biskupic also reports that "Court to rule on immigrant detention; Some jailed as officials decide on deportation." And you can access here an article entitled "Declining U.S. abortion rate at its lowest level since 1974."

The Washington Times reports here that "Foes of racial quotas want only Bush's full-court press." Here's an article entitled "Democrats hang on to gavels." An editorial describes "The right brief on affirmative action." And an op-ed by Cal Thomas describes the Illinois death penalty commutations as a "Miscarriage of justice."

The Los Angeles Times is full of good stuff today. David G. Savage reports here that "High Court Rejects Killer's Claim of Double Jeopardy" and here that "Justices Consider Case on State HMO Reforms." An article reports that "Defense Attacks Government Evidence in Terrorism Case; Lawyer for U.S.-born captive Padilla says the facts show he has no information to provide. She argues officials are blocking legal counsel." You can access here an article entitled "Republicans Are Still Waiting to Take Full Control of Senate." A California-based intermediate state appellate court has issued a decision that upholds a contractual provision preventing credit card customers from filing class-action arbitrations, this article reports. A report from Sacramento begins, "The Legislature opened an investigation Tuesday into complaints that a California consumer protection law is being abused by attorneys who sue small businesses on flimsy charges, then quickly exact settlement payments when the business owners can't afford to defend themselves in court." In news from Fairfax, Virginia, "Prosecutors Link Teen to Sniper Gun." And The LATimes also reports that "Abortion Rate Lowest Since '74."

The Boston Globe reports here that "Study details drop in abortion rate." And columnist Derrick Z. Jackson has an essay entitled "GOP puts a new twist on 'lynching.'"
Posted at 06:50 by Howard Bashman



In Wednesday's newspapers: In The Washington Post, Mike Allen and Charles Lane have an article entitled "President To Oppose Race-Based Admissions." Charles Lane on his own has an article captioned "Court Hears Arguments on Ky. HMO Law." And I wonder who wrote a short article that runs under the headline "Defendant Loses 'Double Jeopardy' Death Case." In other news, "Husband Recounts Sniper Slaying; Testimony Given at Hearing on Whether to Try Malvo as Adult."

In The New York Times, Neil A. Lewis reports that "Bush May Intervene in Affirmative Action Case." Linda Greenhouse reports here that "Justices Reject a Double-Jeopardy Claim." Here's an article entitled "State Argues for Broadening of Managed Care." The Times contains an editorial entitled "A Crucial Decision on Race." This article reports that "Presidential Hopefuls to Attend Abortion Rights Event." The Times contains an op-ed entitled "Don't Compromise on Abortion." And here's an article entitled "Sniper Suspect in Court."

The Christian Science Monitor contains an article by Warren Richey entitled "Family-leave act caught in Supreme Court fray." Warren separately reports here that "Court upholds 'double jeopardy' death sentence."

Finally, the folks at OpinionJournal have a theory about why Eugene Scalia abruptly resigned from his position as acting Solicitor of Labor last week.
Posted at 00:25 by Howard Bashman



"Bush Opposes University of Michigan Plan": The Associated Press has this late-breaking report.
Posted at 00:18 by Howard Bashman



Tuesday, January 14, 2003
Available online at law.com: Jason Hoppin reports here on a pending U.S. Supreme Court case from Guam that will decide whether non-Article III federal judges may sit by designation on U.S. Court of Appeals panels. "3rd Circuit Applies 'Shocks the Conscience' Test to Zoning Case," Shannon Duffy reports here. You can access here an op-ed that begins:
On Dec. 2, 2002, the U.S. Supreme Court announced its decision to hear two cases involving the University of Michigan's admissions policies. These cases will decide the fate of affirmative action in higher education. Supreme Court rulings over the past decade suggest that a decision to invalidate affirmative action is likely. If this happens, it would be a grave mistake.
Finally, here's an article entitled "No Bankruptcy Protection for Disillusioned Lawyer."
Posted at 23:47 by Howard Bashman



U.S. Supreme Court round-up for Tuesday, January 14, 2003: With Chief Justice William H. Rehnquist having returned to the bench on Monday following his brief injury time-out, things at the U.S. Supreme Court seemed to be returning to normal. And that remained the case today, with the issuance of a 5-4 death penalty ruling and Justice Clarence Thomas's second unanimous opinion of the Term.

Kill me once, shame on you; kill me twice, shame on me: David Allen Sattazahn won an appeal entitling him to a new murder trial after he was sentenced to life imprisonment following his first death penalty trial, at which the jury split 9-3, with nine voting for life imprisonment and three voting for a death sentence. Following the retrial at which he was again convicted of capital murder, he was rewarded by a jury that this time voted unanimously in favor of the death penalty, resulting in his receipt of a death sentence.

The question the U.S. Supreme Court resolved today was whether the U.S. Constitution's prohibition on double jeopardy prevented the Commonwealth of Pennsylvania from imposing a death sentence at the second trial after the jury's deadlock at the first trial resulted in a sentence for capital murder of life imprisonment. By a margin of 5-4, the Court ruled in Sattazahn v. Pennsylvania, No. 01-7574 (U.S. Jan. 14, 2003), that double jeopardy did not apply to prevent Pennsylvania from imposing a death sentence at the second trial. Justice Antonin Scalia wrote the majority opinion. Justice Ruth Bader Ginsburg wrote the dissent.

All nine Justices appear to agree that if the jury at the original trial had returned a unanimous verdict in favor of life imprisonment, it would have violated the prohibition against double jeopardy to subject the defendant to the possibility of a death sentence at the second trial. Presumably all nine Justices would also have agreed that if the first jury had voted unanimously in favor of imposing a death sentence, the defendant could again be subjected to that possibility at the second trial, occasioned by his successful effort at obtaining a new trial. The question today, of course, was what happens when the original jury fails to reach a unanimous verdict as to the appropriate sentence.

Justice Scalia's majority opinion treats this as a relatively simple case, and indeed it may well have been. Because the original jury did not acquit the defendant of the death penalty, jeopardy never attached, and Pennsylvania remained free as a matter of federal constitutional law to retry him as to penalty. Thus, in the majority's view, Pennsylvania was free to seek a retrial as to penalty only in the event that the defendant prevailed in seeking a retrial as to guilt. Sure it may seem unfair to require someone convicted of murder and sentenced to life imprisonment to risk the death penalty at a retrial if his appeal seeking a new trial succeeds, but this defendant was twice found guilty of murdering another person, so how sorry can anyone be expected to feel for him?

Part III of Justice Scalia's opinion took a journey to Apprendi-land (see my earlier post here for an explanation of when Justice Scalia first used that term), and on that journey Justices Sandra Day O'Connor and Anthony M. Kennedy were unwilling to go. Surprisingly, the Chief Justice joined in Part III, even though he had never previously been mistaken as a fan of the Apprendi ruling.

In her unusually tentative dissenting opinion, Justice Ginsburg argued that because Pennsylvania law mandated that a jury deadlock over the death penalty result in the imposition of a life sentence, the outcome of the defendant's first trial should be viewed as though the jury had unanimously voted in favor of a life sentence. Orin Kerr, in a post at The Volokh Conspiracy, contends that Justice Ginsburg's dissent appears to rest on little more than an aversion to the death penalty. Although I would tend to agree with Justice Scalia's ruling, I do not believe that Justice Ginsburg's dissent can be condemned as outcome oriented. The main consideration that separated the majority from the dissenters was the weight to be accorded Pennsylvania's statute mandating that the trial judge impose a life sentence if the jury has deadlocked over whether to impose a death sentence. The statute could be viewed as the equivalent of a legislative acquittal of the death penalty (essentially the dissenters' view) or the statute could be viewed as in no way overriding the fact that the original jury actually deadlocked as to imposition of a death sentence (essentially the majority's view).

Crash test dummies discovery: In the perfect world, the U.S. Congress would encourage States and local governments to remedy the most dangerous roadways so as to make them less dangerous. And Congress would do this by offering States and local governments money to make the repairs. All that States and local governments would have to do would be to undertake a thorough evaluation of their roads to determine which portions were really, really unsafe.

But what if States and local governments were concerned that documents memorializing how very dangerous existing roadways were could be used in litigation to hold those governmental bodies liable for harm caused by the dangerous roads? Well, Congress could simply pass a law providing that such documents would not be subject to discovery in litigation nor admissible in court. Or would that exceed Congress's Commerce Clause authority? "No it wouldn't," a unanimous Supreme Court answered today in an opinion by Justice Clarence Thomas. See Pierce County, Washington v. Guillen, No. 01-1229 (U.S. Jan. 14. 2003). In his first unanimous opinion of the Term, Justice Thomas rejected a convicted felon's effort to have his right to possess firearms restored. Today Justice Thomas rejects a Commerce Clause challenge to a law governing the use of state and local government records in state court. Has someone replaced Justice Thomas with Bizarro Justice Thomas? Hey, I'm just asking.
Posted at 22:40 by Howard Bashman



How much money should BMI receive as a fair royalty for a third-party's distribution of BMI's music over cable and satellite television, and through the third-party's Internet website? Today a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled that the trial court, sitting as a "rate court" under the BMI consent decree, set BMI's royalty rate too low. The Second Circuit's opinion contains a very interesting discussion about what music should cost. Circuit Judge Robert A. Katzmann issued a short concurring opinion.
Posted at 22:25 by Howard Bashman



Two Third Circuit judges debate the level of omniscience attributable to federal appellate judges: First, some necessary background. The U.S. Supreme Court announces a ruling on an issue. Then, a U.S. Court of Appeals resolves a case presenting the same issue, but the court does not mention the U.S. Supreme Court's ruling nor does the court of appeals appear to be applying the substance of the Supreme Court's holding. Several years later, the question arises: is a subsequent panel of the U.S. Court of Appeals to follow the Supreme Court's decision or the arguably contrary later decision of an panel of the same court of appeals that seems to have ignored the Supreme Court's ruling and therefore applied arguably incorrect law?

In today's 2-1 ruling, Third Circuit Judge Samuel A. Alito, Jr. writes in the court's majority opinion:
The dissent, however, asserts: "Unlike the Majority, I am fully comfortable assuming that this Court in Woodwind . . . (as in any other case it decides) was completely aware of the content of all published Supreme Court case law that may bear on the case at hand, especially in such a fundamental area as Due Process." Dissent at 22. This image of the omniscient circuit judge -- who has every potentially pertinent precedent in mind at all times and never fails to grasp their possible implications-- is flattering but perhaps not entirely accurate.
You can access both the majority and dissenting opinions at this link.
Posted at 21:58 by Howard Bashman



Federal Circuit affirms trial court's unpublished reprimand of government attorney for selective quotation of precedent: Yesterday a unanimous three-judge panel of the U.S. Court of Appeals for the Federal Circuit affirmed the unpublished reprimand of an attorney with the U.S. Department of Justice for "misquoting and failing to quote fully from two judicial opinions in a motion for reconsideration she signed and filed." Making matters worse from the attorney's perspective, the Federal Circuit's disposition comes in the form of a published opinion (Microsoft Word document) for all to see.
Posted at 21:49 by Howard Bashman



En banc Ninth Circuit panel reaches pragmatic result in upholding federal convict's increased prison sentence (I kid you not!): An en banc eleven-judge panel of the U.S. Court of Appeals for the Ninth Circuit today ruled 7-4 that a federal trial court properly sentenced the defendant to a mandatory minimum sentence reserved for prior drug offenders even though the federal prosecutor did not scrupulously adhere to every jot and tittle of the applicable mandatory minimum sentencing statute. Circuit Judge Alex Kozinski wrote the majority opinion, and his good friend Circuit Judge Stephen Reinhardt joined the dissenting opinion, which was written by Circuit Judge Sidney R. Thomas.
Posted at 21:33 by Howard Bashman



In news from Georgia: The Atlanta Journal-Constitution reports here on yesterday's ruling by the Supreme Court of Georgia that struck down that State's law criminalizing fornication. Yet for those who view the ruling as declaring open season to have sex with sixteen-year-old girls, this article -- entitled "Man gets 8 years for live sex show" -- suggests that it is time to think again.
Posted at 21:27 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Bush Declares a Sanctity of Life Day"; here, "Committee Money Stalls Republican Senate"; here, "Prosecutors Link Teen to Sniper Attacks"; here, "Ill. Official Seeks to Void Commutations"; here, "Private Dog Breeders Free From Licensing"; and here, "Two Confederate Flags Pulled Down in Mo."
Posted at 21:23 by Howard Bashman



Stuart Buck didn't like Dahlia Lithwick's essay about Justice Clarence Thomas's book deal: You can access Stuart's comments here. (Hey, that's "Mr. Buck" to you, at least until he again changes the tag line to his blog posts.) Update: Juan Non-Volokh also didn't like Dahlia's essay (although I think he means uninterested rather than disinterested).
Posted at 17:17 by Howard Bashman



There vs. here: The author of the exceptionally fine boutique law blog "Statutory Construction Zone" emails to advise that his site now features some original artwork below its title. Meanwhile, here at "How Appealing," I'm still hoping someday to express an original thought.
Posted at 16:34 by Howard Bashman



Third Circuit reinstates grant of habeas corpus in death penalty case reversed by U.S. Supreme Court: A three-judge panel of the U.S. Court of Appeals for the Third Circuit -- in a death penalty case in which the U.S. Supreme Court on June 17, 2002 reversed the Third Circuit's grant of habeas corpus relief -- today reinstated its grant of habeas relief in an opinion you can access here.

The panel ruled 2-1 that the Supreme Court's 1988 ruling in Mills v. Maryland did not announce a new rule of law, and therefore the holding of Mills could be applied on collateral review. The third judge on the panel agreed that habeas relief should be granted, even while disagreeing about whether Mills announced a new rule of law. The question whether Mills announced a new rule of law is one that even before today's ruling has split the federal appellate courts, making further U.S. Supreme Court intervention in this matter a good possibility.
Posted at 16:04 by Howard Bashman



If only it were always this easy: Today the U.S. Court of Appeals for the First Circuit corrected a previously-issued opinion in the following respect: "On page 7 line 4 change 'injustice' to 'justice'."
Posted at 15:26 by Howard Bashman



Two noteworthy D.C. Circuit rulings issued today: Dog breeders throughout the United States who raise and sell puppies from their homes may be pleased to learn that the U.S. Court of Appeals for the D.C. Circuit today upheld a Department of Agriculture regulation exempting those dog breeders from licensing and inspection requirements.

Separately, the court ruled that the Washington Metropolitan Area Transit Authority had sovereign immunity in a suit that resulted from the very unfortunate death of a six-year-old boy who ended up alone on a Metro train after the doors closed before his mother could board. As the opinion proceeds to explain:
As the train left the station and proceeded into a tunnel, Tyri moved to the rear of the car and exited through the bulkhead doors, attempting to pass into the next car. The train passed over a switching device causing a large gap between the two cars. Tyri fell through this gap and onto the tracks.

When [Tyri's mother] and the station manager heard cries coming from the tunnel, they notified Transit Authority officials, who hurried to Tyri. They found him severely injured, but still conscious, seventy feet into the tunnel. Four days later, despite efforts to save him at Children's Hospital, Tyri died from his injuries.
You can access the opinion here.
Posted at 15:20 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Ex-N.H. Supreme Court Justice Found Dead." Gina Holland reports here on today's U.S. Supreme Court oral argument in Kentucky Association of Health Plans v. Miller. And in other news from the Supreme Court, "Court Upholds Double Jeopardy Death Rap." (Behind the scenes here at "How Appealing," a team of experts is working to determine exactly what that last headline means.)
Posted at 13:06 by Howard Bashman



Elsewhere in Tuesday's newspapers: In what qualifies as important news, The Washington Times reports here this morning that "President Bush is planning to side with white students against the University of Michigan in a landmark affirmative-action case before the Supreme Court this week, said a source close to White House deliberations." You can access here an article entitled "Frist to appoint GOP chairmen, flap settled or not." Here's an article entitled "Cornyn, Bush have ties of long standing in Texas." This article reports that "'Partial-birth' abortions shown increasing." Today's paper includes an editorial entitled "The disgraceful George Ryan." And Bruce Fein has an op-ed entitled "Judicial squinting during war."

The federal death penalty is due to be next imposed on a prisoner on March 18, 2003, The Los Angeles Times reports here. The LATimes today contains a death-penalty-related editorial entitled "Exorcise 'Demon of Error.'" The newspaper also contains an op-ed captioned "A Road Into Minds of Murderers: Instead of executing killers, study them and their motives in a research prison."

Lyle Denniston of The Boston Globe reports here that "Appeal barred in Microsoft case; Judge rules rival cannot try to overturn the settlement." The Globe today contains an editorial that begins, "Someday Americans will recognize the current period of national debate on the death penalty as an abolition movement much like the one that ended slavery." And if you think that editorial is aggressive in its opposition to the death penalty, then you haven't yet seen Thomas Oliphant's op-ed.

In case anyone has forgotten, USA Today contains an article today entitled "PBS tries to film jury process in murder case."

The Free Lance-Star of Fredericksburg, Virginia today contains an editorial discussing Justice Antonin Scalia's remarks on Sunday about the separation of Church and State.

Finally, a columnist for The Seattle Post-Intelligencer yesterday had an essay entitled "Law doesn't fit the public rage over dead trees."
Posted at 12:03 by Howard Bashman



Supreme Court of South Carolina decides Church vs. State tax case: In an opinion issued yesterday, the Supreme Court of South Carolina answered in the affirmative the question "May the City of Charleston impose an assessment on [a] Church's tax-exempt properties pursuant to the Municipal Improvement Act?" The State offers this report on yesterday's ruling.
Posted at 11:42 by Howard Bashman



In some sad news from New Hampshire: The Union Leader reports here that "Ex-justice Bois, 85, missing in Bedford."
Posted at 11:26 by Howard Bashman



The U.S. Supreme Court has issued two opinions today: And at least one of them qualifies as interesting. You can access Justice Antonin Scalia's opinion for a sharply divided Court in the death penalty-double jeopardy case of Sattazahn v. Pennsylvania via this link (the ruling of the Supreme Court of Pennsylvania has been affirmed), and you can access Justice Clarence Thomas's opinion for a unanimous Court in Pierce County, Washington v. Guillen via this link. "How Appealing" will of course provide a much more thorough explanation of both rulings sometime this evening.

Update: The Supreme Court's Web site now provides access to the rulings: Sattazahn here, and Pierce County here.
Posted at 10:52 by Howard Bashman



The U.S. Supreme Court may issue one or more opinions today: If that happens, the opinions should be available for review and download at this link by 11 a.m. eastern time today. And, if any Supreme Court opinions issue today, I will provide a complete recap of them tonight.
Posted at 08:11 by Howard Bashman



The Associated Press is reporting: Gina Holland has an article entitled "High Court Considers HMO Regulation." And David Kravets reports here that "Calif. Ends Fight Over Execution Access."
Posted at 06:20 by Howard Bashman



In Tuesday's newspapers: In The New York Times, Linda Greenhouse reports here that "Justices, in Surprise, Forgo a Sentencing Issue." Neil A. Lewis has an article entitled "White House Weighs Role in Court Cases on Race Issue." An op-ed about the Michigan cases is entitled "The Merit Myth." This article reports that "Lawyers Renew Plea to Meet Terror Suspect in Navy Brig." And here you can access an article entitled "State Can't Afford to Let Court System Remain Inefficient, New York's Chief Judge Says."

In The Washington Post, you can access here a front page story captioned "Malvo Case Prosecutors Begin Bid for Death Penalty." In related news, here's an article entitled "What Prosecutors Must Prove to Subject Malvo to Death Penalty." And columnist Marc Fisher has an essay entitled "Executing Children Is the Case Now Before Virginia."

In The Christian Science Monitor, Warren Richey has an article entitled "Court to clarify the rights of noncitizens; High court hears a case about mandatory detentions for 'criminal aliens.'" And at OpinionJournal, Brendan Miniter has an essay entitled "Long Live Capital Punishment; Reports of its death have been greatly exaggerated."
Posted at 06:09 by Howard Bashman



Monday, January 13, 2003
"This American Life" looks at secret government: The public radio program "This American Life" recently broadcast a program described as:
Secret Government. It's been said often that the Bush Administration is one of the most secretive Presidencies ever. But really, just what does that mean? Three case studies of some of the newly-minted secrets.
You can listen to a recording of the program at this link (Real Audio required). Thanks to the reader who drew this to my attention.
Posted at 23:26 by Howard Bashman



On remand from Supreme Court, federal district court holds Tennessee Secondary School Athletic Association's recruiting rule unconstitutional: Today the U.S. District Court for the Middle District of Tennessee ruled in the case of Brentwood Academy v. Tennessee Secondary School Athletic Association that the Association's recruiting rule was unconstitutional as applied to Brentwood under both the First and Fourteenth Amendments to the U.S. Constitution. You can access today's ruling here. You can access the U.S. Supreme Court's February 2001 ruling in the case at this link. The Tennessean has this report on today's ruling. (Thanks to reader Patrick Bryant for alerting me to this ruling.)
Posted at 23:19 by Howard Bashman



Available online at law.com: Jonathan Groner reports here that "New Congress Eyes Judicial Nominees." Jonathan Ringel has an article entitled "11th Circuit Could Ignite Capital Controversy; Possible nominee Pryor is outspoken on federalism, abortion."

This article reports that "Sex Between Unwed No Longer Crime in Georgia." Should convicted felons permanently lose the right to vote? The Eleventh Circuit soon will decide, according to this article. Here's an article entitled "High Court to Examine Whistleblower Suit Under False Claims Act." In news from New York State, this article reports that "Kaye Vows to Pursue Reform Agenda." In other news from New York, "Lawyers for Padilla Claim Feds Are Stalling." Finally, Evan P. Schultz of The Legal Times has an essay (free registration required) arguing that "however wrong the legal reasoning of Roe [v. Wade], it provided a right that America was crying for."
Posted at 22:59 by Howard Bashman



"Lawyers: Govt. Blocks Dirty-Bomb Suspect": The Associated Press provides this report.
Posted at 22:46 by Howard Bashman



"laborblog" on "How Appealing": Thanks to the author of the new blog "laborblog" -- a news filter published by an Atlanta-based management lawyer -- who writes that "Howard Bashman's site, How Appealing, is probably the finest law blog on the internet."
Posted at 22:44 by Howard Bashman



"Sub Judice" notes the filing for cert. in a very important Hobbs Act case from the Fifth Circuit: See this post on that blog. I previously covered the Fifth Circuit's evenly divided (8-8) en banc ruling in the case in a post you can access here.

Oh, and the folks at "Sub Judice" have also launched into their discussion about the "commodification of the law." Because "How Appealing" appears to be a central focus of that discussion, it probably wouldn't be fair for me to start responding at the very outset of the conversation, which is where things now stand. So, I'll hold my tongue for the time being.
Posted at 20:38 by Howard Bashman



"White House May Oppose Michigan Policy": With just three days to go, the federal government isn't yet ready to commit to a position. The Associated Press offers this report. And here's the relevant portion of today's White House press briefing:
Q Can you tell us what the latest thinking of the President is on the University of Michigan case, the affirmative action case, which way he's leaning, if he's leaning any way so far?

MR. FLEISCHER: No, I'm not prepared to say if he's leaning one way or another because it remains under review. The deadline for any decision by the federal government to enter into an amicus brief in this matter is Thursday. This is Monday, and so the matter remains under review.

Q Can you shine some light, though, on kind of part of his thinking, part of the White House thinking of how or why they would come down one way or another on --

MR. FLEISCHER: Well, let me at least inform you about the process, and I don't think, again, there's anything I can say about any ultimate outcome for a mater that is not yet decided. But the President views matters of race as some of the most important, sensitive matters in our country. He is very sensitive to issues involving race and giving opportunities to people from a variety of backgrounds, while also giving opportunities in a manner for one and for all in our country. And so the President, having been governor of a state that was so ethnically diverse as Texas, I think is well-versed in many of the sensitivities, the ups and the downs and the ins and the outs to these issues. They are all inherently very complicated parts of our social formula and our social fabric in the United States.

So, with that said, the President and his staff have been meeting with officials of the Department of Justice talking about the case, listening to both sides of the case. And as I said, the President is sensitive to all issues involving matters pertaining to opportunity and race, and I think there's nothing I can offer beyond that about what ultimate decision will be made. And it can be one of any number of decisions, or no decision.

Q Is that off the table? Is it a possibility that you wouldn't file a brief at all at this point?

MR. FLEISCHER: We'll know by Thursday, or around Thursday.
You can access the complete transcript of today's press briefing at this link.
Posted at 20:29 by Howard Bashman



"Clarence Millionaire: The quiet justice breaks his silence for a bundle." You can access here this evening's jurisprudence column by Slate's Dahlia Lithwick.
Posted at 18:56 by Howard Bashman



U.S. Supreme Court feeder judges: The University of Michigan Law School (of all places) has this list of judges whose law clerks have gone on to clerk at the U.S. Supreme Court. The list states that it covers the period from 1989 to 2002. When I last mentioned this chart back on May 23, 2002 (in a post that was both humorous and prescient), the chart hadn't been updated since 1999.
Posted at 17:22 by Howard Bashman



Supreme Court of Georgia voids that State's law prohibiting fornication: You can access today's unanimous ruling of the Supreme Court of Georgia at this link. The court ruled that "the Georgia Constitution protects from criminal sanction private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent." Thanks much to the reader who drew this decision to my attention, as this is a case that this Web log has been following for quite some time.
Posted at 16:54 by Howard Bashman



"Court Snuffs Smokeless Tobacco Appeal": The AP agrees that the denial of certiorari in a $1.05 billion antitrust case is newsworthy.
Posted at 15:36 by Howard Bashman



"Race appeal will test Bush record with court ": Today's edition of The Washington Times contains this report.
Posted at 15:20 by Howard Bashman



Celebrating the start of the new legal year in Hong Kong: A reader who is currently clerking for a federal appellate judge sends along a link to this image from Hong Kong.
Posted at 14:34 by Howard Bashman



My column published today on recent developments in the battle over non-precedential federal appellate opinions is now online: You can access it here, via The Legal Intelligencer's Web site.

An unstated assumption in today's column is that once federal appellate courts begin to allow citation to opinions designated at the time of issuance as "non-precedential," any such opinions that in fact do decide matters of first impression will cease to be regarded as truly non-precedential. I am bolstered in my view by a comment found in the minutes of the April 2002 meeting of the Advisory Committee on Appellate Rules (found at page 25 of this PDF document), wherein those opposed to a national rule allowing citation to "non-precedential" opinions pointed out:
Many circuit judges will view this as the first step on a path that will eventually lead to the abolition of non-precedential opinions, which are unpopular among practitioners but essential for the survival of the federal appellate courts.
I'd be curious to hear whether readers agree that a nationwide rule allowing citation to supposedly non-precedential federal appellate opinions where no adequate precedential authority exists will sound the death knell for opinions designated as "non-precedential" at the time of their issuance.
Posted at 14:30 by Howard Bashman



This case isn't quite Bush v. Gore: Today Seventh Circuit Judge Terence T. Evans issued an opinion on behalf of a unanimous three-judge panel that begins:
EVANS, Circuit Judge. This case arises out of a lesser-known November 2000 election dispute, one that requires no mention of butterfly ballots or hanging chads.
You can access the opinion here.
Posted at 14:17 by Howard Bashman



Divided Ninth Circuit panel upholds lawfulness of sockeye salmon enhancement project in Alaska: The court's majority opinion begins:
Plaintiffs, The Wilderness Society and the Alaska Center for the Environment, challenge a decision by Defendant United States Fish and Wildlife Service (the Service) to permit a sockeye salmon enhancement project (the Project) at Tustumena Lake. Tustumena Lake is located in Alaska, within a designated wilderness area in the Kenai National Wildlife Refuge. Plaintiffs argue that the Project violates the Wilderness Act, 16 U.S.C. secs. 1131-1136, because it contravenes that Act's requirement to preserve the "natural condition" and "wilderness character" of the area, and because it constitutes an impermissible "commercial enterprise" within a wilderness area. Plaintiffs also allege that the Project violates the National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. secs. 668dd-668ee (the Refuge Act), because it is not "compatible" with the purposes of the Refuge Act.

The district court denied Plaintiffs' motion for summary judgment and entered judgment in favor of Defendant. We have jurisdiction pursuant to 28 U.S.C. sec. 1331. We affirm.
Senior Circuit Judge Betty B. Fletcher dissented in an opinion that begins:
The majority holds that, because the relevant provisions of the Wilderness Act and the Refuge Act are "materially ambiguous," we are required to accord Chevron deference to USFS's decision to allow the Tustumena Lake salmon enhancement project to go forward in the Kenai National Wildlife Refuge. Because the majority's ambiguity analysis is deeply flawed, and seeks to hold the English language to an unattainable standard of clarity -- particularly in the statutory context -- I respectfully dissent.
You can access both the majority and dissenting opinions at this link.
Posted at 14:03 by Howard Bashman



Now available at National Review Online: Byron York has a follow-up essay about Fifth Circuit nominee Charles W. Pickering, Sr. entitled "The Cross-Burning Case: What Really Happened, Part II." And, on the issue of the Illinois death penalty commutations, Rod Dreher has an essay entitled "Gov. Ryan Did the Right Thing," while a pseudonymous police officer has an essay entitled "Cowardice Masquerading as Courage."
Posted at 13:58 by Howard Bashman



"Critics' attacks on Pickering don't reflect reality": Today's edition of The Atlanta Journal-Constitution contains an op-ed by this title, and you can access the op-ed here.
Posted at 13:52 by Howard Bashman



Federal District Judge refuses to allow former "friends of the court" to appeal from antitrust consent decree in USA v. Microsoft: You can access the ruling of the U.S. District Court for the District of Columbia, dated Saturday, January 11, 2003, at this link.
Posted at 12:25 by Howard Bashman



Reuters reports on today's most newsworthy U.S. Supreme Court orders: Reuters reports here that "The U.S. Supreme Court on Monday let stand a $1.05 billion antitrust award against smokeless tobacco giant UST Inc., the largest damages award in the history of the nation's antitrust laws." Additionally, you can access here an article entitled "Supreme Court Rejects Columbine-Related Case"; here, "Supreme Court Won't Review Ford/Firestone Ruling"; and here, "Automakers Lose Asbestos Appeal at Supreme Court."
Posted at 12:18 by Howard Bashman



The Associated Press reports on today's most newsworthy U.S. Supreme Court orders: You can access here an article entitled "Appeal Rejected in RFK Assassination"; here, "Court Rejects Carmakers' Asbestos Appeal" (plus, be sure to see the end of this article for additional summaries); and here, "Court Rejects Would-Be Moussaoui Adviser."
Posted at 12:01 by Howard Bashman



Today's U.S. Supreme Court order list is now available online: Because the U.S. Supreme Court issued grants of review this past Friday, it is no surprise that today's order list contains no new grants of certiorari. Today's order list does contain four summary affirmances, although three of those four cases appear to involve the same underlying matter. The Court has called for the views of the Solicitor General in three cases, including Intel Corp. v. Advanced Micro Devices, Inc. And, the Court has denied Zacarias Moussaoui's motion for leave to proceed in forma pauperis without an affidavit of indigency executed by petitioner.

Update: The Court's official order list is now available here.
Posted at 10:22 by Howard Bashman



"City Bans Smelly People From Buses": The Associated Press has this report. The action may have the effect of sending smelly people to court to vindicate their rights.
Posted at 10:22 by Howard Bashman



Some kind words from a reader: The following email arrived this morning:
I've been reading your weblog for about 3 months now, and it's been the finest supplement to my first year of legal education I can imagine. I'm consistently surprised at how regularly the very issues we're discussing in class crop up. And I very much appreciate your disinterested approach (which is not always an accurate characterization of the analyses of some of my professors...). I've been passing your website address around to my fellow students here at Georgetown, to near universal acclaim.
Thanks so much for those very kind words.
Posted at 09:46 by Howard Bashman



Perhaps the most thorough report so far on yesterday's speech by Associate Justice Antonin Scalia on Church-State issues: The Free Lance-Star of Fredericksburg, Virginia contains a very detailed report on Justice Scalia's speech in Fredericksburg yesterday. Plus, the article contains photographs!
Posted at 09:43 by Howard Bashman



Elsewhere in Monday's newspapers: Today's edition of The Los Angeles Times contains an editorial entitled "Bush's Full-Court Press." Steven G. Calabresi and Ilya Somin have an op-ed entitled "The Timing Game That Justices Play: Retiring to help pack the bench with like-minded jurists has a 200-year history in the United States." Jonathan Turley has an op-ed entitled "Public Payroll: a Family Affair; Nepotism in Washington poses a threat to institutional integrity." Reporter David G. Savage has an article entitled "Health-Care Reforms Face High-Court Test: Will states be allowed to force drug discounts and let patients see doctors outside their HMOs?" You can access here a news article that runs under the headline "Bush, Democrats Come Out Slugging at Opening Bell: The president's bold moves last week and the strong response by the minority in Congress do not bode well for bipartisanship this year." This article reports that "Virginia Aggressively Uses DNA to Solve Other Cases: A law allows police to compel suspects in violent offenses to give samples for study in unsolved crimes. Issues of privacy are raised." And The LATimes has a report from Illinois entitled "After Blanket Clemency, Illinois Struggles to Assess Its Effects; Prison officials seek new cells for more than 150 inmates as families of victims voice anger. Death penalty reform may be hindered."

USA Today's U.S. Supreme Court correspondent, Joan Biskupic, appears to have had a busy weekend. Today she has three articles: here entitled "High court case tests limits of family leave act"; here "Nike case: Are press releases free speech?"; and here "High court unlikely to be swayed by 1 state" concerning the death penalty. You can access here an article entitled "Ill. clemency energizes both sides; Death penalty move cheered and assailed." And speaking of the death penalty, USA Today contains an editorial entitled "Ill. governor elevates justice by clearing death row." A contributor's contrary view is entitled "Gov. Ryan errs badly." And you can access letters to the editor about the death penalty debate here. Finally, here's an op-ed entitled "Don't draft anyone now, but do register women."

Last but not least, today's edition of The Boston Globe contains an op-ed entitled "Gideon's legacy."
Posted at 09:00 by Howard Bashman



My monthly appellate column for January 2003 appears in today's edition of The Legal Intelligencer: Those of you who have previously signed-up for email delivery of the column, in PDF format, on the morning of its publication should be receiving your copy of the column via email any moment now. The column published today updates recent developments in the continuing battle over federal appellate opinions that are designated as "non-precedential" at the time of their issuance. My next column, to be published on February 10, 2003, examines what distinguishes the most useful appellate court Web sites from the least useful. Thanks to all of the readers who have already emailed in response to my request for input on that topic.
Posted at 08:43 by Howard Bashman



A glimmer of hope for Fourth Circuit nominee Terrence W. Boyle: Today's edition of The Charlotte Observer contains this report. According to the article, "no North Carolinian has taken a seat on the [Fourth Circuit] since the late Sam Ervin III in 1980."
Posted at 07:51 by Howard Bashman



In Monday's newspapers: The Washington Post contains an article entitled "Scalia Defends Public Expression of Faith: Recent Rulings Have Gone Too Far, Justice Says During Tribute to Va. Gathering." The U.S. Senate may be under Republican control, but its committees aren't quite yet, this article reports. And in local criminal news, The Post reports here that "Execution Possibility Intensifies Spy Trial; Jury Selection Opens In Landmark Case."

OpinionJournal features an editorial captioned "Daschle's Election Lesson: Do Democrats know why they lost the Senate majority?"

From The Christian Science Monitor, you can access here an article entitled "Big setback, and new ire, on death penalty." Finally for now, The Monitor also contains a related editorial entitled "Gov. Ryan's Bold Half Leap."
Posted at 00:06 by Howard Bashman



Sunday, January 12, 2003
"ScrappleFace" reports "All Prisoners Released from Jails in U.S.": Details available here.
Posted at 23:58 by Howard Bashman



"Death Penalty Opponents Eye More Change": The Associated Press offers this report.
Posted at 22:05 by Howard Bashman



News from here and there: If it's articles and commentary concerning judicial nominations that you want, you can access here an op-ed by Cynthia Tucker of The Atlanta Journal-Constitution entitled "Bush snubs black voters with Pickering." A columnist in The St. Petersburg Times asserts here that "Republicans should reassure blacks with civil rights agenda." Today's edition of Newsday contains a news article entitled "Critics: GOP Missteps as It Woos Blacks." Those looking for a more supportive view of the Bush Administration's judicial nominees will be pleased with an editorial from The Oklahoman entitled "Bush Not Wasting Political Capital." David Horowitz, writing on his Web log, condemns Judge Pickering's critics as unfair. And, in news from Illinois, here's an article entitled "Fitzgerald gives Bush judge picks."

The Washington Post's U.S. Supreme Court correspondent, Charles Lane, engaged last Tuesday in an online question and answer session about the possibility of one or more Supreme Court vacancies in the very near future.

On the subject of the pending U.S. Supreme Court cases that challenge the University of Michigan's racial preferences in student admissions policies, you can access here an article entitled "Alliance files in favor of 'U' race policies." And, The Star Tribune of Minneapolis contains an article captioned "Minneapolis lawyers at center of Supreme Court's biggest case."

Nike is based in Oregon, and therefore it should come as no surprise that The Oregonian had an especially thorough article reporting on the grant of cert. in the Nike commercial speech First Amendment case.

Finally, on the subject of cross-burning, you can access here an article from FrontPage Magazine entitled "Justice Thomas Has a Cross to Bear." Finally, in case you missed it, commentator Clarence Page has an op-ed last month entitled "To rob a burning cross of its power."
Posted at 19:31 by Howard Bashman



The Associated Press is reporting: "Supreme Court Justice Antonin Scalia complained Sunday that courts have gone overboard in keeping God out of government" begins an article today by Gina Holland. Hmm, I wonder if Justice Scalia had anything to say about the Ninth Circuit's Pledge of Allegiance ruling. (Hint: All signs point to "yes.") And you can access here an earlier article previewing the speech that Justice Scalia delivered today.

This article reports that "Supreme Court Justice Ruth Bader Ginsburg will be honored next month by the University of Louisville's Louis D. Brandeis School of Law for her past work promoting civil liberties and gender equality." You can access here an article entitled "Supreme Court Takes on Family Leave Case." Finally, The AP reports here that "Frist Supports Miss. Judge Renomination."
Posted at 17:20 by Howard Bashman



Coming soon to a newsstand near you: U.S. News and World Report's edition of January 20, 2003 contains an article entitled "The year of living dangerously: George Bush's 2003 agenda is chock full of both risks and opportunities." Roger Simon looks at the upcoming thirtieth anniversary of Roe v. Wade in an essay entitled "The argument that never ends." You can access a blurb entitled "Pickering a fight" at this link (scroll down approximately halfway). Here's an article entitled "Sniper case begins." And John Leo writes of the "Lament of the liberals."

The January 20, 2003 edition of Newsweek contains an article by Howard Fineman entitled "Meet the 'Missing Linc'; Bush's fortunes in the closely divided Congress may turn on the whims of the Senate's least Republican Republican." And finally, here's an article entitled "A Leap of Fate: A governor's controversial last hurrah clears out Illinois's crowded death row."
Posted at 14:16 by Howard Bashman



Some notable commentary published recently in The Washington Times: On January 7, 2003, The Washington Times printed an op-ed by Bruce Fein entitled "Grand larceny--with benchmarks." The op-ed begins:
Grand larceny without judicial robes is felonious. But with judicial trappings, at least in the Ohio Supreme Court, grand larceny is de rigueur. What its 4-to-3 ruling in Dardinger vs. Anthem Blue Cross & Blue Shield (Dec. 20, 2002) lacked in legality was more than compensated by its outrance audacity. The decision filched $20 million of a $30 million punitive damage award from a grieving widower to make a votive offering to a cancer research fund at Ohio State University (OSU) adored by the four justice majority. At least Robin Hood stole from the rich to give to the poor.

The Ohio Constitution empowers the State House of Representatives and Senate by concurrent resolution supported by two-thirds majorities to remove a judge upon complaint. A persuasive case can be made that the four Ohio Supreme Court Justices who perpetrated the Dardinger grand larceny so brazenly usurped nonjudicial powers as to justify their ousters from judicial office.
And conservative commentator Thomas Sowell had a two-part series entitled "Quotas on trial." You can access part one here and part two here.
Posted at 09:38 by Howard Bashman



Elsewhere in Sunday's newspapers: The Washington Post contains an article entitled "Illinois Death Row Emptied; Citing 'Demon of Error,' Ryan Commutes Sentences." The Post also contains a related editorial entitled "A Tale of Two Governors." And you can access here an op-ed entitled "A Penalty With Prejudice." This article reports that "Bush Plans No Apology Over Lott Remarks." Reporter Dan Eggen has an article entitled "Justice Dept. Hiring Changes Draw Fire; Law Grads Chosen Based on Politics, Say Critics." An article on politics runs under the headline "Symptom: Fire in the Belly. Cure: Hat in the Ring." And an editorial about a Virginia state criminal rule of procedure that prevents courts from considering newly discovered evidence more than twenty-one days after a conviction is entitled "Just Repeal It."

Today's edition of The Washington Times contains an op-ed entitled "Interpreting the Second Amendment." Its conclusions are unlikely to meet with the approval of UCLA Law Professor Eugene Volokh.

The Los Angeles Times offers quite comprehensive coverage of yesterday's Illinois death penalty clemency. You can access here an article entitled "Illinois Governor Commutes All Death Row Cases: Ryan reduces terms of 167 inmates to life or 40 years, calling the state's capital punishment system 'deeply flawed.'" This article reports that "Move Will Intensify Debate on Executions." Here's an article entitled "Unlikely Candidate for Death Penalty Reformer: Capital punishment wasn't on Ryan's radar when he became governor. Watching a murderer die helped change his outlook." Finally, this article reports that "Hope for the Innocent in Prison, Anger for the Innocent Buried: Some who think loved ones were convicted in error say Ryan fell short. Most victims' families say he went too far." Elsewhere, The LATimes reports here that "That Retro Feel to Bush's Style: It's Reaganesque; In many ways, he has more in common with the 40th president than with the 41st, his father."

The Boston Globe reports here that "Illinois governor empties death row; Labels state's system a 'catastrophic failure.'" The Globe also contains an op-ed entitled "The fig leaf of 'diversity.'"

I've already mentioned in earlier posts, below, various items that can be found in Sunday's edition of The New York Times. Here are several others. From central Pennsylvania comes word that "Judge Orders Group to Stop Promoting Income Tax Evasion." You can access here the review of a book entitled "MADE IN TEXAS: George W. Bush and the Southern Takeover of American Politics." Today's special Education Life section contains a lengthy article that answers the question "How to Win a Rhodes." You can access here a list of "Notable Scholars." And, for those curious about "Other Scholarship Roads," here's an article for you.

Finally, in news from Chicago, The Chicago Sun-Times contains a very lengthy article entitled "Gov. Ryan empties Death Row of all 167." The Chicago Tribune contains a series of articles on yesterday's big news. The lead story is entitled "Clemency for all: Ryan commutes 164 death sentences to life in prison without parole. 'There is no honorable way to kill,' he says." This article reports that "After years of soul searching, Ryan decides not to 'play God.'" "Relatives of victims feel 'cheated,'" this article reports. You can access here an article entitled "Prisons gird for shift of inmates off Death Row." Finally, a columnist today has an op-ed entitled "Truth of matter is lies are at heart of Ryan's reign."
Posted at 08:27 by Howard Bashman



National Commission on the Public Service recommends solution to federal judicial pay crisis: On Tuesday, January 7, 2003, the National Commission on the Public Service -- also known as the "Volcker Commission" because it was header by former Federal Reserve Chairman Paul A. Volcker -- issued its final report, which included detailed recommendations on how to eliminate the current federal judicial pay crisis. You can access the commission's final report at this link.

Recommendation Nine, which begins on page 22 of the report, states:
Congress should grant an immediate and significant increase in judicial, executive, and legislative salaries to ensure a reasonable relationship to other professional opportunities.
Recommendation Ten, which begins on page 25 of the report, states:
Congress should break the statutory link between the salaries of members of Congress and those of judges and senior political appointees.
Chief Justice William H. Rehnquist, together with Associate Justice Stephen G. Breyer, testified before the commission on July 15, 2002, and you can access a transcript of their testimony here.

The issuance of the National Commission on the Public Service's final report is a very big deal, and I'm frankly quite surprised that I haven't seen more coverage in the press of the commission's recommendations on how to fix the judicial pay crisis. One exception is The Pittsburgh Post-Gazette, which yesterday contained an editorial endorsing the Volcker Commission's recommendations. I'd even like to think that I would have mentioned the issuance of the Volcker Commission's report earlier myself if I had not been on the road in Kansas City on the day of its release.
Posted at 08:05 by Howard Bashman



Saturday, January 11, 2003
"In Family Leave Case, Supreme Court Steps Back Into Federalism Debate": Linda Greenhouse has this report in Sunday's edition of The New York Times.
Posted at 22:49 by Howard Bashman



"11th Circuit won't fast-track Ten Commandments appeal": The Associated Press provides this report.

And, while I'm on the subject of the U.S. Court of Appeals for the Eleventh Circuit, you can access here an article entitled "Court Revives 'Perfect Storm' Suit."
Posted at 22:42 by Howard Bashman



Fruit of the poisonous, um, sperm smuggling: A three-judge panel of the U.S. Court of Appeals for the Third Circuit, in an opinion issued January 9, 2003 and designated as "non-precedential," ruled that a federal trial court properly refused to turn over to the wife of a federal prisoner sperm from the prisoner illegally smuggled out of the prison in order to impregnate the wife. The Third Circuit's opinion provides the following explanation of the trial court's ruling:
[T]he District Court found that the criminal conduct to which Mrs. Parlavecchio pleaded guilty was conspiracy to bribe a public official, that is, "the illegal payment of money in exchange for receiving seminal fluids from Mrs. Parlavecchio's husband." Id. In essence, Mrs. Parlavecchio was seeking a return of the very fruits of her criminal activity. The District Court held, therefore, that a return of the seminal fluid would violate the basic principle that a claimant in a civil equitable proceeding must come into court with "clean hands." Id. The District Court declined to exercise its equitable powers to aid Mrs. Parlavecchio.
Demonstrating that "non-precedential" is not always the equivalent of "not newsworthy," The New York Daily News today contains this report on the ruling.
Posted at 22:28 by Howard Bashman



An early look at some of the contents of Sunday's New York Times: Sunday's edition of The New York Times contains an editorial entitled "The War Against Women" that asserts, "As the 30th anniversary of the Roe decision approaches, women's right to safe, legal abortions is in dire peril. President Bush's assault on reproductive rights is part of a larger ongoing cultural battle." This article reports that "Governor Assails System's Errors as He Empties Illinois Death Row." You can access here an article entitled "Class-Action Suits Mean Delays and, Maybe, Cash." The Ethicist, when asked whether it should be against the law for a place of business to discriminate against babies, begins his response:
I can't comment on the legality of this situation; I'm not a lawyer, certainly not a baby lawyer. (Wouldn't that be cute? A li'l baby lawyer . . . maybe not.)
Finally, you can access here a review of the book "FAT LAND: How Americans Became the Fattest People in the World."
Posted at 19:44 by Howard Bashman



Is this SportsCenter, or just a recap of yesterday's decisions from the Supreme Court of Virginia? Yesterday the Supreme Court of Virginia issued opinions (all in Microsoft Word format) involving a fan struck by a foul ball at a minor league baseball game, resolving whether professional football players are exempt from the coverage of the Workers' Compensation Act when they suffer injuries in the game they are employed to perform, and resolving whether the owner of a snow tubing facility owed a duty to protect a voluntary participant against the "inherent risks" of that recreational activity. Thanks to several readers who emailed to suggest that some or all of these rulings were worthy of mention.
Posted at 17:10 by Howard Bashman



"Court to Look at Whistle-Blower Lawsuit": The Associated Press offers this report on a case to be argued at the U.S. Supreme Court on Tuesday.
Posted at 16:56 by Howard Bashman



Tonight on C-SPAN's fine program "America and the Courts": Tonight's edition of C-SPAN's "America and the Courts" appears to be especially worth watching. Here's the online description of tonight's program:
This past week, President Bush re-nominated U.S. District Court Judge Charles Pickering of Mississippi to a seat on the U.S. Court of Appeals for the 5th Circuit. Judge Pickering was rejected for the same seat last year by the Senate, then controlled by the Democrats.

This week on America and the Courts, reaction to Judge Pickering's renomination.

First, a Wednesday news conference with Senators Charles Schumer (D-NY) and Dick Durbin (D-IL). Then, a portion of Wednesday's Senate Republican Conference briefing led by Senate Majority Leader Bill Frist. Following that, segments of the White House press briefing with presidential press secretary Ari Fleischer from Wednesday. And finally, a statement on all judicial nominations by the Congressional Black Caucus, held Thursday.

America and the Courts will conclude with an excerpt from the debate in the House on January 8, 2003 on pay for federal judges.
If you miss tonight's broadcast on television, you can watch the program online beginning sometime next week via this link.
Posted at 16:50 by Howard Bashman



Illinois Governor commutes sentences of all of that State's death row inmates: Just returned home with the family from watching the Philadelphia Flyers defeat the Detroit Red Wings (game recap here), and the big news is:
Gov. George Ryan commuted the sentences of every inmate on Illinois' death row Saturday in an unprecedented action, saying the "demon of error" makes the state's death penalty process immoral.

Ryan's action less than two days before leaving office capped his three-year campaign to reform the death penalty process that began when he declared a moratorium on executions. On Friday, he pardoned four death row inmates who he said were wrongfully convicted.
Meanwhile, this article from today's edition of The Chicago Sun-Times reports that prosecutors "insist pardoned were guilty."
Posted at 16:47 by Howard Bashman



Elsewhere in Saturday's newspapers: The Washington Times contains an article entitled "Bush urged to oppose preferences in high court." And you can access here an article entitled "Gephardt asks Bush for black judge pick."

In The Los Angeles Times, David G. Savage reports that "Justices to Hear Nike Free-Speech Claim." In other news from the U.S. Supreme Court, here's an article entitled "U.S. High Court to Review Holocaust Victims' Victory." The LATimes reports here that "Microsoft Bids to Settle State Antitrust Cases." An no lengthy LATimes Magazine profile of California's unregulated porn film industry, which will run in tomorrow's newspaper, would be complete without a discussion of several appellate court rulings.

In The Boston Globe, Lyle Denniston reports here on the grant of cert. in the Nike case.

In news about Fifth Circuit nominee Charles W. Pickering, Sr., The Clarion-Ledger reports here that "Frist says he'll back Pickering for court." The Clarion-Ledger also reports that NPR Radio personality Tavis Smiley said in a speech last night that "what Mr. Bush did [in renominating Judge Pickering] was the political equivalent of giving black America his middle finger." "Black Caucus retargets Pickering," The Washington Times reported yesterday. The Palm Beach post contains an editorial about judicial nominations entitled "The ghost of Trent Lott." The Scripps Howard News Service offers an editorial entitled "President picks fight over judges." And The Bowling Green, Kentucky Daily News contains an editorial captioned "Senate should move quickly to confirm judges."

Finally, Missouri's leading daily newspapers report on calls for President Bush to nominate Missouri Supreme Court Judge Ronnie L. White to fill an anticipated Eighth Circuit vacancy. The St. Louis Post-Dispatch reports here that "Gephardt, Clay urge Bush to renominate White to federal bench." And The Kansas City Star reports here that "Missourians ask Bush to nominate judge to federal bench."
Posted at 08:35 by Howard Bashman



Bravenet hit counter stats for this past week: On Monday, January 6, 2003, "How Appealing" received 6,058 page visits; on Tuesday, January 7 this blog received 5,674 visits; on Wednesday, January 8, this blog received 6,116 visits; on Thursday, January 9, this blog received 5,344 visits; and on Friday, January 10, this blog received 5,702 visits. Thanks for visiting, everyone!
Posted at 08:33 by Howard Bashman



Wishing happy birthday to Seventh Circuit Judge Richard A. Posner: Today he turns 64. (Via The Kitchen Cabinet.)
Posted at 00:57 by Howard Bashman



"Democratic Party insults Mississippi": The opinion editor of the Hattiesburg American has an essay that runs under that headline.
Posted at 00:45 by Howard Bashman



In Saturday's newspapers: In The Washington Post, Charles Lane reports here that "Nike Speech Case Goes to High Court." In The New York Times, Linda Greenhouse reports here that "Supreme Court to Review Nike Case."

Elsewhere in The NYTimes, Adam Liptak reports that "Death Row Numbers Decline as Challenges to System Rise." Responding to a recent U.S. Supreme Court ruling, "U.S. Plan Could Ease Limits on Wetlands Development," this article reports. The newspaper also contains an editorial entitled "Danger to the Wetlands." The D.C. Circuit "Rejects Tax Strategy Merrill Sold to Companies," this article reports. And you can access here an article that begins, "Lawyers for Lynne F. Stewart, a New York lawyer charged with supporting terrorism, asked a federal judge yesterday to dismiss the indictment against her, saying the acts she is accused of are 'pure speech' protected by the First Amendment."

Elsewhere in The Washington Post, you can access here an article entitled "Administration Establishes New Wetlands Guidelines." This article reports that "Malvo Case Hearing to Stay Open; Judge Says Coverage Won't Hurt Jury Selection." And a letter to the editor from two former U.S. Department of Justice attorneys is entitled "It's Not Torture, and They Aren't Lawful Combatants."
Posted at 00:21 by Howard Bashman



A fourth appellate judge has volunteered to take part in "20 questions for the appellate judge": Excellent news! This evening an email arrived from a federal appellate judge who volunteered to take part in this Web log's newest monthly feature, "20 questions for the appellate judge." A total of four appellate judges have so far volunteered, three from federal appellate courts and one from a state court of last resort. The first installment of the feature will appear here in early February. Thus, the next appellate judge to volunteer will have his or her interview appear here in early June. Only seven more vacancies exist for 2003, and once seven additional appellate judges volunteer, no additional volunteers will be sought or accepted. To volunteer, an appellate judge need merely send me an email expressing the willingness to take part. More details are available here.
Posted at 00:09 by Howard Bashman



Friday, January 10, 2003
Now available online at law.com: Tony Mauro reports here that the losing party on appeal in the dispute between the manufacturer of Barbie dolls and a rock and roll band has not followed Ninth Circuit Judge Alex Kozinski's advice "to chill." Instead, Mattel has filed a cert. petition in the U.S. Supreme Court.

This article reports that "Wesley Said to Be Choice for 2nd Circuit." In news from Pennsylvania, a distinguished Republican lawyer from Chester County has been nominated to fill a one year vacancy on the Commonwealth's highest court. The deal, as always, is that the nominee has agreed not to run for election to fill the vacancy.

"Indicted Lawyer Seeks Dismissal of Terror Charges" is the subject of this article from New York. From California comes word of a "Billion-Dollar Settlement in Microsoft Class Action."

And speaking of California, here are this week's up and down arrows from The Recorder. And Scott Graham tries to be funny and often succeeds, but I disagree with his observation here:
News: Judge Alex Kozinski, ridiculing a defense argument in an Internet theft case, writes: "It's a bit as if Judge Reinhardt sent a letter to the DMV saying, 'Judge Kozinski wants to transfer title to his Lamborghini to me -- he'd write to you himself, but he's out of stamps.'"

Comment: It's doubtful that Stephen Reinhardt actually drives a Lamborghini. But if he does, it certainly doesn't help Chief Justice William Rehnquist's latest push for a judicial pay raise.
Isn't Judge Kozinski in fact saying that he himself currently drives a Lamborghini? And that doesn't seem too farfetched, does it?
Posted at 23:58 by Howard Bashman



Other judicial nomination news and commentary: Contributor "Eddie Felson" had a very interesting post entitled "Pickering as decoy" over at the Greedy Clerks Board this morning, and later today James Taranto had some very similar observations in OpinionJournal's Best of the Web Today.

Howard Kurtz of The Washington Post this morning had an essay entitled "Picking a Fight Over Pickering." Mickey Kaus -- who actually gets paid by Slate to blog -- offers some thoughts about the Pickering renomination too.

The Tampa Tribune contains an editorial entitled "Bush Is Right To Renominate His Choices For Federal Bench." And Newsday reports here that "White House eyes Pataki picks for federal court."
Posted at 23:31 by Howard Bashman



The authors of the "Sub Judice" Web log respond: I received this evening a very kind email from the authors of the new and worthwhile "Sub Judice" Web log:
Thanks for your recent mentions of our new law blog, Sub Judice,[FN*] and our conversation about the possible ramifications of Grutter v. Bollinger. We are regular readers of your site. Thanks also for the link on the left side of your blog's page. That is some august company.

Our blog is just getting off the ground. Indeed you may have been its first visitor. We plan to discuss a new legal topic each week, while reserving the right to embroider around our main themes with more opportunistic posts. This week's theme has been Grutter. In the next few weeks (we haven't sorted them out yet) we'll be addressing: the role of law blogs in what one of us calls 'the commodification of law'; five-to-four Supreme Court decisions where "the ends meet," i.e., where Justices conventionally described as belonging to the Court's liberal and conservative wings come together to outvote the center; and the use of law and economics in legal decisions.

Hopefully it'll be worth a look.

Best wishes,

Plainsman and D. (pseudonymous lawyers, not rappers)
Sub Judice

[FN*]: We are grateful we launched our blog when we did. There are only so many goofy Latin legal tags left.
Those upcoming topics should be well worth a look.
Posted at 23:19 by Howard Bashman



"Bush May Enter Affirmative Action Case": The Associated Press has this report. And what do you call a "trial balloon" that pertains to a case pending on appeal? An "appellate balloon," of course. That expression, by the way, currently returns zero Google hits when set forth inside of quotation marks, so I shall now claim credit for it pending further review offline.
Posted at 23:14 by Howard Bashman



Today's cert. grants: SCOTUSblog has a thorough description of the cases in which the U.S. Supreme Court granted review today. And I am reliably advised that Professor Laurence H. Tribe has signed on to argue on Nike's behalf in the headline-grabbing commercial speech case that the Court agreed to review today. Tribe's statement during the NextWave oral argument that "you are an agency that is wearing really two sets of shoes, the ordinary regulator's running shoes but also the wing tips of the creditor agency" is finally beginning to make sense.
Posted at 23:06 by Howard Bashman



To do list: The author of the blog "TalkLeft" has asked me to report that Websense filtering software is no longer blocking her site. For whatever reason, apparently Websense had classified that site as one that involved "sex." I, however, only visited for the articles.

I must reorganize the blogs on the left-hand sidebar of this page that I have classified as "Especially Appealing Blogs." There are a whole bunch of new, quite interesting law blogs that deserve to be included there instead of buried in the long list of "Even More Blogs." Stay tuned for that reorganization, which may require me to list the "Especially Appealing Blogs" in alphabetical order (or as best as I can approximate with both eyes closed).

One reader has asked "What happened to that promised year in review segment?" Excellent question. It takes close to forever to read through this blog's archives, although they don't officially qualify as a "paper trail" unless you print them out, and they certainly don't qualify as a dangerous paper trail because this blog contains nothing that could ever cause anyone offense. One of my main reasons for proposing to do a year in review segment was so that I could misattribute to Eugene Volokh the following clever comment the first time during 2002 that the Ninth Circuit issued a controversial ruling: "In response to which Eugene Volokh was heard to say, 'Well, at least the court hasn't taken away my personal right to possess firearms, or turned this fine Nation into a God-less, totalitarian, communist regime like the country that my family fled so many years ago.'" And then, of course, by the end of the year his quote would simply be, "At least the court hasn't turned this fine Nation into a totalitarian, communist regime." Oh well, it might have been funny, but a thorough year in review segment ended-up being way too much effort.

Finally, in what certainly must reflect an error in balloting, "How Appealing" at least as of this moment is listed as the world's "most influential" law blog at Memeufacture. I demand a recount!
Posted at 19:57 by Howard Bashman



Does this count as part three of the Amar brothers on stare decisis and Roe, Bakke, and Bowers? I ask the question because Akhil, everyone favorite Amar brother (unless, of course, you prefer Vikram), has taken the week off. As an additional bonus, you can still access part one and part two.
Posted at 19:43 by Howard Bashman



"Court Disallows $226M Tax Refund to Wyeth": The Associated Press has this report. And you can access today's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 19:39 by Howard Bashman



"Supreme Court to Review Case on Nike's Right to Speech": Linda Greenhouse of The New York Times offers this report.
Posted at 19:27 by Howard Bashman



Second Circuit refuses to recognize constitutional right to wear a skirt: Today the U.S. Court of Appeals for the Second Circuit issued an opinion that begins:
On this appeal we are asked to consider whether a municipal transit authority's dress code which mandates that all employees wear pants as part of a driver's uniform is an unconstitutional infringement when applied to a female employee who seeks to wear a skirt. The female employee alleges that her Fourteenth Amendment rights to due process and equal protection of the law, and her First Amendment right to free expression were all violated by the governmental directive. The Scots' poet Robert Burns wrote that rank and clothes are "but the guinea's stamp," and that "[a] man's a man for a' that!" Robert Burns, For A' That And A' That, in III The Poetical Works of Robert Burns 152 (Boston, Little, Brown & Co. 1863). But the aggrieved female driver insists that a woman forced by her employer to wear pants on the job is not "a woman for a' that." We have no doubt she strongly feels this as she makes plain in her papers, but our inquiry must be focused on whether the Constitution grants her the right to ignore her employer's dress code. We conclude that it does not.
To my Scottish friends, although the opinion's introduction quotes Robert Burns, the opinion does not appear at first glance to address the existence of a right to wear a kilt, nor have I yet had time to reflect on the opinion's impact on any such alleged right.
Posted at 17:36 by Howard Bashman



Judge Kozinski begins his dissent in a criminal appeal by scripting the conversation in which the defendant's lawyer tells his client of the ruling: You can access Ninth Circuit Judge Alex Kozinski's very interesting dissent -- which starts with nearly six pages of scripted conversation between defense counsel and his convicted client about the Ninth Circuit's ruling -- and the majority opinion that spawned the dissent, at this link.
Posted at 17:24 by Howard Bashman



In a win for the press, "Va. Judge Refuses to Close Malvo Hearing": The Associated Press has this report. The preliminary hearing for the teenage sniper suspect is scheduled for next Tuesday in a Virginia state trial court.
Posted at 17:17 by Howard Bashman



Don't overlook the potential impact of the U.S. Supreme Court's ruling in the Univ. of Michigan racial preference cases on private universities: The folks at the Sub Judice blog correct an embarrassing blunder contained in their earlier post on this matter, while professing to have attended "elite" colleges and law schools. Don't worry, I will find out who these so-far-anonymous bloggers are, just as I have in the past uncovered the identity of every other anonymous law blogger. But, of course, I would never give away such secrets to others.
Posted at 17:15 by Howard Bashman



Eighth Circuit rejects Second Amendment challenge to federal felon in possession of handgun law: You can access today's ruling of the U.S. Court of Appeals for the Eighth Circuit at this link.
Posted at 16:23 by Howard Bashman



Today's official U.S. Supreme Court order list now available online: You can access it here. The Court today granted review in nine separate matters.
Posted at 16:20 by Howard Bashman



Still to come -- an endowed chair: While the author of "InstaPundit" is celebrating his recent accomplishment, today I received an email from Patrick Schmidt, Assistant Professor, Department of Political Science, Southern Methodist University, that begins:
Dear Professor Bashman,

I noted on your blog today your forthcoming article on what attorneys and judges find useful in appellate court websites. This is a topic that I, along with my co-author Paul Martin of Wadham College, Oxford, have had great interest. A central question of ours has been to ask who judges and court administrators see as the audience of their websites.

* * *

We are looking forward to your piece next month for a view on federal appellate courts, since our published work to date has concerned mainly state courts.
Now if only I knew at which educational institution I am serving as a professor. (Oddly, this isn't even the first email I have received from professors who think that I'm a professor too, although it is the best of the genre thus far. To all my non-professor readers, my apologies if I ever seem too professorial here.)
Posted at 15:57 by Howard Bashman



"Holocaust-Era Insurance Case in Court": Gina Holland, who is no longer on byline strike today, has an article that begins, "The Supreme Court said Friday it will consider striking down a California law intended to help people recover money from unpaid Holocaust-era insurance claims."
Posted at 15:17 by Howard Bashman



BREAKING NEWS -- U.S. Supreme Court agrees to review Nike's commercial speech appeal: The Associated Press offers this report.
Posted at 15:03 by Howard Bashman



Assistant Attorney General Viet D. Dinh of the Office of Legal Policy to argue U.S. Supreme Court case next week: And not just any case, but the very important case of Nevada v. Hibbs, which raises the question whether the Family and Medical Leave Act, which abrogates the States' Eleventh Amendment immunity from suit, represents a proper exercise of congressional power under Section 5 of the Fourteenth Amendment. You can learn more about the Hibbs case here and here.

Among its other important tasks, the Office of Legal Policy assists the President in filling Article III judicial vacancies. Dinh served as a law clerk to D.C. Circuit Judge Laurence H. Silberman and to U.S. Supreme Court Justice Sandra Day O’Connor. Not surprisingly, Justice O'Connor's vote is viewed as critical to the outcome of this case.
Posted at 15:01 by Howard Bashman



"Inmate Pleads Innocent to Plot Charges": The Associated Press is reporting:
AMARILLO, Texas -- A Texas inmate with racist tattoos across his neck and knuckles pleaded innocent Friday to charges he tried to have the judge in the Oklahoma City bombing case killed.

Christopher Lee Bennett, 28, was indicted by a federal grand jury Tuesday. He was accused of soliciting two fellow inmates in January 2001 to kill U.S. District Judge Richard Matsch.
You can access the complete article at this link.
Posted at 14:34 by Howard Bashman



Elsewhere in Friday's newspapers: The Washington Times reports here that "Race case under Bush's 'review.'"

In The Boston Globe, Lyle Denniston has an article entitled "Conflict builds over ruling on citizen's wartime detention; Critics say president got too much leeway." An editorial about the ruling warns, "Citizens, beware." You can access here an article entitled "Military challenge: Mass. lawsuit questions Selective Service System." Columnist Derrick Z. Jackson has an op-ed entitled "Warning sign for racial profiling bill." And speaking of race, here's an article entitled "Lewiston braces for white supremacist rally."

The Los Angeles Times also contains an editorial that criticizes the Fourth Circuit's ruling in the Yaser Esam Hamdi case. And The Virginian-Pilot didn't like the ruling very much either, this editorial demonstrates.

While I'm on the subject of alleged enemy combatants, The New York Times early this morning posted an article entitled "U.S. Asks Judge to Deny Terror Suspect Access to Lawyer, Saying It Could Harm Interrogation."

Finally, USA Today contains both an article entitled "Thomas reportedly sells memoir for $1 million; Justice to detail rough childhood, Senate hearings" and an op-ed entitled "Affirmative action changes lives." Although the op-ed states that it was written "By Generic," my guess is that the op-ed was written by Mary-Frances Winters.
Posted at 14:21 by Howard Bashman



Available at National Review Online: Possible D.C. Circuit nominee Douglas W. Kmiec has an op-ed arguing that the Fourth Circuit properly dismissed Yaser Esam Hamdi's habeas petition. And Roger Clegg says he has written the "speech the president should give on the Michigan cases."
Posted at 14:15 by Howard Bashman



"Mo. Democrats Seek White Renomination": The Associated Press is reporting:
WASHINGTON -- In an apparent attempt to press the issue of race, two Missouri Democrats are asking President Bush to renominate the black judge who was the key witness for the opposition during Attorney General John Ashcroft's confirmation hearings.

Reps. Dick Gephardt and William Lacy Clay asked the president to appoint Missouri Supreme Court Judge Ronnie White to the Eighth Circuit Court of Appeals, which will have a vacancy in April.
You can access the complete article at this link.
Posted at 13:44 by Howard Bashman



Today's judicial confirmation news and developments: The Committee for Justice has posted online a ten-page report entitled "Jeffrey S. Sutton: A Lawyer's Lawyer." The report begins:
On May 9, 2001, President Bush nominated Jeffrey S. Sutton, of Columbus, Ohio, to a vacant seat on the United States Court of Appeals for the Sixth Circuit. Today, January 9, 2003--610 days later--he is still waiting to be confirmed. We enthusiastically add our voice to the chorus of those calling on the United States Senate expeditiously to confirm him to the chronically-understaffed Sixth Circuit bench.
E. J. Dionne Jr., writing in today's edition of The Washington Post, has a column entitled "Payback in Judges." It begins, "You have to hand it to President Bush and his judge-pickers." And that concludes the portion of Dionne's column with which I agree.

ABC's The Note has a post entitled "Pickering Redux." Click here and then scroll down or search for the word "Pickering." Joe Conason's Journal yesterday had a post about the Pickering renomination entitled "Still Burning." USA Today contains an article entitled "Bush doesn't hold back on agenda."

The News & Observer of Raleigh, North Carolina reports here that "Boyle again up for 4th." Finally, conservative commentator Tom Jipping has an essay today entitled "Armageddon in the courts!"
Posted at 13:20 by Howard Bashman



Coming in February 2003: The installment of my monthly appellate column to be published in The Legal Intelligencer in February 2003 will address what distinguishes the most useful appellate court Web sites from the least useful. Readers who wish to share their own views on the subject with me are, as always, welcome to contact me via email.

Also up for discussion -- does any appellate court Web site provide more useful information free of charge than the Web site of the U.S. Court of Appeals for the Seventh Circuit, and should that court's recent redesign of its Web site, which had the unfortunate effect of making access to information more difficult to obtain, cause me to reconsider my view that it is the best appellate court Web site there is.
Posted at 08:09 by Howard Bashman



In Friday's newspapers: At OpinionJournal, you can access an editorial entitled "Playing the Lott Card: 'Strom' Schumer gets ready to smear Judge Pickering."

The New York Times reports here that "Memoir Deal Reported for Justice Thomas," one day after The Washington Post offered this same news. The NYTimes didn't like yesterday's Fourth Circuit ruling on enemy combatants, this editorial makes clear. The NYTimes notes a correction (first item) that I previously drew to its attention here. And here's an article that begins, "Five Massachusetts students filed a lawsuit in federal court today challenging the constitutionality of military registration because it requires that only men register, and not women."

The Washington Post was similarly dissatisfied by yesterday's Fourth Circuit enemy combatant ruling, this editorial reveals. You can access coverage here of yesterday's oral argument before the Supreme Court of Virginia in the case of Daryl Renard Atkins, a death row inmate who asserts he should be spared the death penalty due to his alleged mental retardation. Speaking of capital punishment, you can access here an article entitled "U.S. Challenged By Mexico on Death Penalty." And, in news from Maryland, this article reports that "Prosecutorial Limits Urged in Capital Cases."

Finally for now, Friday's edition of The Christian Science Monitor contains an article entitled "Setbacks for white-supremacist groups."
Posted at 00:26 by Howard Bashman



Thursday, January 09, 2003
Available online at law.com: In news from California, The Recorder reports here that "9th Circuit Judge Hits Buzz Saw Over Downed Trees." And you can access here an article that begins, "Pre-dispute arbitration contracts that bar class action claims are 'unconscionable' under both California law and Nevada law, a California appellate court ruled Wednesday."

Last but not least, Texas law firms were asked to rank Texas law schools. You can access an article reporting on the results here.
Posted at 22:20 by Howard Bashman



Some new commentary at FindLaw: Edward Lazarus argues that the region of the USA where U.S. Supreme Court Justices are from influences how they vote on difficult cases. I wonder if he actually gets paid for writing this stuff? And law student Brandy A. Karl discusses the role a judge's personal preferences may play in deciding cases. Hmm, I thought there was nothing left to say about that topic in the aftermath of my monthly appellate column from December 2002 entitled "Activist U.S. Court of Appeals Judges: Myth or Reality?"
Posted at 22:18 by Howard Bashman



"White House Faces Choice on Court Case": The Associated Press reports here that "The Bush administration faces a touchy political choice over whether to join a Supreme Court showdown on affirmative action, a case that is a lightning rod both for conservatives and for minority voters the Republicans are courting." And dare I opine that The AP's U.S. Supreme Court reporter, Gina Holland, is on byline strike today? Louis Menand had an excellent essay about byline strikes in The New Yorker this past June, and you can access it here.
Posted at 19:46 by Howard Bashman



Fifth Circuit denies writ of mandamus but nevertheless tells the trial court to correct the mistake committed below: The U.S. Court of Appeals for the Fifth Circuit today posted online a per curiam order issued last month denying without prejudice a petition for writ of mandamus, but a majority of the three-judge panel nevertheless instructed the trial court that it had made a mistake in deciding whether diversity of citizenship jurisdiction existed. The order concluded, "Because we are confident that the able district court did not intend to overlook a feature critical to jurisdictional analysis, there is no reason to grant mandamus relief at this time." Sounds like a case of mandamus denied but relief granted.
Posted at 19:28 by Howard Bashman



"Bristling Dixie": In a jurisprudence essay just posted online at Slate, Dahlia Lithwick considers "the ill-conceived school bans on cheesy Confederate T-shirts."
Posted at 19:06 by Howard Bashman



Two Second Circuit judges demonstrate different methods of concurring in their own majority opinions: Today the U.S. Court of Appeals for the Second Circuit issued two separate opinions in which the judge who wrote the opinion for the court also issued a separate concurring opinion.

Circuit Judge Dennis Jacobs, in a qualified immunity appeal, demonstrates the traditional approach, wherein the concurring opinion is set forth separately from the opinion of the court.

Circuit Judge Pierre N. Leval, by contrast, placed his concurring opinion at the rear, but nevertheless inside, of the opinion constituting the opinion of the court. The opinion resolves the very interesting question whether a non-dependent daughter of parents killed in the crash of Swissair flight 111 off of Nova Scotia in September 1998 was entitled to the proceeds of two $1 million accidental death insurance policies issued because the plane tickets were purchased with the American Express card, or whether the parents' siblings and the daughter's grandparents were instead entitled to the proceeds of those insurance policies. Under the very odd terms of the AMEX insurance agreement, the Second Circuit ruled that the non-dependent daughter could not recover, and instead affirmed the award of $1 million each to the parents' siblings and the daughter's grandparents.
Posted at 17:40 by Howard Bashman



A post for which no pithy summary comes to mind: As promised, today the local photographer under contract with the ABA Journal came to my office (with an assistant and a large cart-full of photographic equipment) and proceeded to take some simply amazing photos, if the Polaroid test shots are any indication. Counting the time the photographer spent setting-up and disassembling his equipment, he was probably here for a good five and a half hours, and I believe he took nearly 150 photographs of me. I must have spent nearly an hour in front of the camera. On those days when I need to think of reasons why I became an appellate lawyer instead of a male model, I can add to my list the sheer boredom of being photographed. Apparently three other lawyer-bloggers are also being photographed for the article in their respective hometowns.

The readers of this blog who have emailed to offer one or two proposed questions for the blog's newest feature, "20 questions for the appellate judge," have sent along some wonderful suggestions. One reader who forwarded a question also wrote that the reader will soon be beginning a judicial clerkship for one of the federal appellate judges who was confirmed by the U.S. Senate late last year, and that it was the judge who suggested, in response to the clerk-to-be's question about how best to prepare for the clerkship, that the clerk-to-be should be reading this Web log. Stories like that almost have a way of making an afternoon spent before the camera seem worthwhile.
Posted at 17:26 by Howard Bashman



In federal appellate courts, should an "absolute majority" be needed for rehearing en banc, and should non-precedential opinions continue to exist? While doing some research recently into developments in the battle over whether opinions designated in advance as "non-precedential" should continue to issue from federal appellate courts, I came across the Minutes of Spring 2002 Meeting of Advisory Committee on [Federal] Appellate Rules.

Those Minutes, at pages twenty through twenty-seven, contain what to me at least was a fascinating discussion of whether an "absolute majority" should be needed to obtain rehearing en banc (a subject my monthly appellate column addressed in April 2001), and whether federal appellate courts should be allowed to designate opinions as non-precedential (a subject my monthly appellate column last addressed in January 2002 and will again address this month, in a column to be published next Monday (which you can receive via email on Monday if you sign-up here now)).
Posted at 17:01 by Howard Bashman



In the Senate, Republicans may control the floor, but Democrats still control the committees: Thanks to a reader who sent along a link to this article from yesterday's edition of Roll Call.
Posted at 15:58 by Howard Bashman



Ninth Circuit today withdraws opinion upholding legality of Montana's campaign finance reform law: Back on September 24, 2002, a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit rejected a First Amendment challenge to two provisions of Montana's campaign finance law passed in 1994, known as Initiative 118. You can access my original coverage of that ruling at this link. Today the same three-judge panel issued an order withdrawing its prior ruling. The order does not specify what will happen next in the appeal, so stay tuned.
Posted at 14:51 by Howard Bashman



Virginia Supreme Court is puzzled by what to do on remand of case in which U.S. Supreme Court declared execution of mentally retarded unconstitutional: The case in which the U.S. Supreme Court declared unconstitutional the execution of the mentally retarded -- Atkins v. Virginia -- was back before the Supreme Court of Virginia for oral argument today. This report from the Associated Press on today's oral argument states that the justices serving on Virginia's highest court "seemed confused Thursday about how to proceed. The defense 'is asking the court to decide as a matter of fact that Atkins is mentally retarded' even though the jury that convicted him and recommended the death penalty issued no such decision, said Justice Elizabeth B. Lacy."
Posted at 14:45 by Howard Bashman



"White House set to stay out of affirmative-action case": Today's edition of The Washington Times contains a very interesting article that begins:
President Bush is unlikely to join a Supreme Court battle over whether public universities may favor racial or ethnic groups for admissions.

Two sources close to the administration deliberations told The Washington Times that the White House has received a legal brief from the Justice Department backing white students who say they were denied admission to the University of Michigan because of "race-conscious measures."

"A brief that opponents of racial preferences would be happy with was drafted and submitted to the White House," said one person who spoke on the condition of anonymity. "I hope the White House will not let its political considerations override the reasoned analysis of the Justice Department."

However, the consensus among administration officials working on the issue is that the White House will not file any brief with the Supreme Court. But several sources said things could change before the Jan. 16 filing deadline.
You can access the entire article at this link. (Thanks to a distinguished Washington, DC-based reader for forwarding along a link to this article.)
Posted at 12:04 by Howard Bashman



A good day for interesting cases from the Eighth Circuit: The U.S. Court of Appeals for the Eighth Circuit today has issued at least three interesting decisions.

Readers who would prefer not to learn what it would be like to survive the crash of a commercial airliner should stay away from this decision. American Airlines today has lost its appeal challenging the verdict in favor of three survivors of the crash of American’s Flight 1420 in Little Rock, Arkansas, on June 1, 1999.

An individual by the name of Terry Sanders lost her effort on appeal to recover under the Family and Medical Leave Act against May Department Stores Company. The Eighth Circuit's opinion explains:
May hired Sanders as a financial analyst in October 1984. Sanders, then a male, worked productively at the company for nearly thirteen years until the spring of 1998. In March of that year, Sanders informed May that she suffered from gender dysphoria. To address this condition, Sanders told May that she intended to undergo gender reassignment surgery on June 4, 1998. Moreover, following the surgery, Sanders would no longer consider herself a male, but a female.

Sanders also informed May that in order to prepare for this surgery, she was required to live as a woman for four to six weeks preceding the procedure. She expressed particular concern that some level of confidentiality be maintained during this pre-surgical lifestyle adjustment. In particular, she wanted to avoid workplace disclosure of her impending life change. Sanders especially emphasized that she did not desire this disclosure because of the adverse effect such disclosure might have on her spouse of twenty-five years. Consistent with her desire for privacy, Sanders tendered her resignation.
Finally, the Eighth Circuit affirmed the entry of summary judgment against DaimlerChrysler and Mercedes-Benz USA in a Lanham Act trademark action involving a former Mercedes dealership's ownership rights in a telephone number that spelled "1-800-MERCEDES." As the Eighth Circuit's opinion explains, "We thus conclude that the licensing of a toll-free telephone number, without more, is not a 'use' within the meaning of the Lanham Act, even where one possible alphanumeric translation of such number might spell-out a protected mark." Thanks to the never-ending wonders of the Internet, you can determine what if anything your telephone number spells via this link.
Posted at 11:32 by Howard Bashman



"Thomas, HarperCollins Reach Book Deal": The Associated Press has this report. Of course, Charles Lane of The Washington Post appears to have been the first to go to press with this news.
Posted at 11:15 by Howard Bashman



Working double duty: Today at National Review Online, Byron York has two items. One article begins:
In their renewed attacks on Bush appeals-court nominee Charles Pickering, Democrats have focused on Pickering's rulings in a 1994 cross-burning case. Accusing Pickering of "glaring racial insensitivity," they charge that he abused his powers as a U.S. District Court judge in Mississippi to give a light sentence to a man convicted of the crime.
York's other piece begins, "In a statement Wednesday, New York Democratic Senator Charles Schumer charged the renomination of Judge Charles Pickering to the Fifth Circuit Court of Appeals is part of a Bush administration plan to destroy 'basic civil rights' in America."
Posted at 10:31 by Howard Bashman



The Associated Press is reporting: You can access here an article from Chattanooga, Tennessee that begins, "County commissioners who lost a court fight over displaying the Ten Commandments on courthouse walls voted to pay their attorneys by selling the plaques to the highest bidder." And in news from Michigan, "A judge is cracking down on people who write vulgarities on checks they use to pay traffic fines. Judge John Pikkarainen sentenced one man to two days of community service for writing a vulgar insult on the memo line of a check. He charged someone else with contempt for similar prose. A hearing is set in that case for Jan. 14."
Posted at 10:26 by Howard Bashman



Some potentially good news for federal judges on the salary front: Yesterday the U.S. House of Representatives passed a bill authorizing "salary adjustments for Justices and judges of the United States for fiscal year 2003." The bill "authorizes Federal judges to receive the same cost of living pay adjustment that all Federal employees, including Members of Congress, have received for calendar year 2003." You can access the transcript of yesterday's House proceedings by clicking here, selecting item 34 from the resulting list, and then, once you reach the transcript page, clicking on the link for "printer friendly version."
Posted at 10:22 by Howard Bashman



Your opportunity to suggest one or two questions to be asked of a sitting appellate judge: Next Wednesday, I will dispatch via email a list of 20 questions to the U.S. Court of Appeals judge who has volunteered to be the first participant in this Web log's brand new feature, "20 questions for the appellate judge." As I mentioned yesterday in a post you can access here, I have already prepared a list containing more than 20 questions.

Some readers have already emailed to suggest topics, such as a law student who wrote and asked that I question the judges about what they look for in hiring law clerks. But for those readers who are awaiting a formal invitation, here it is. You can email to me one or two proposed questions that you would like to see a sitting federal appellate judge answer (you can even propose more than two, but I am going to read no more than your first two suggestions), and those reader-suggested questions that are better than the the questions that I have already come up with on my own will be included on my list. Reader-suggested questions that are included on the list of 20 questions submitted to the first interviewee will appear on this blog when the first question and answer session is posted online in early February 2003. Those reader-suggested questions that do not make the grade this month either will be held over for use in future months or will be consigned to the vast electronic email trash can in the sky.
Posted at 07:32 by Howard Bashman



Elsewhere in Thursday's newspapers: Joan Biskupic of USA Today reports here that "A week before a Supreme Court filing deadline, the Bush administration is torn over what position to take in an important dispute over affirmative action in higher education." A sidebar to Joan's article is entitled "Where administration officials stand on the issue." You can access here an article that begins, "President Bush's ambitious efforts to cut taxes and appoint conservative judges ran into trouble within his own party Wednesday, two days into the new session of Congress." This article is headlined "Court rules against American Taliban fighter." In an editorial, USA Today supports a recent Ohio Supreme Court ruling (Microsoft Word document) that gave a large portion of a punitive damages award to charity. In an op-ed, Victor Schwartz disagrees with that editorial.

The Los Angeles Times reports here that "U.S.-Born Talib Can Be Denied Trial, Court Says." This article reports that "Latino Groups Petition Bush" to support the continued existence of affirmative action in university student admissions. You can access here an article entitled "Frist Talks Up Health Care, Helping Minorities." Here's an article that runs under the headline "Racist Accused of Plot on Judge; White supremacist Matt Hale is charged with soliciting the murder over a trademark ruling." Commentator Norah Vincent has an essay entitled "Wrong Focus in Abortion Issue: No answers are likely to be found in absolutist positions." And The LATimes prints several letters to the editor under the caption "Politics on the Bench: Inevitable, Regrettable."

The Boston Globe reports here that "Democrats call judicial picks disappointing; Choices dash hope for an alliance on civil rights agenda." Lyle Denniston reports that "A federal appeals court yesterday upheld nearly unlimited power for President Bush to order the capture of US citizens, and any others found among enemy forces overseas, and to detain them indefinitely while the war on terrorism continues." And you can access here an article that begins, "The leader of a white separatist group scheduled to lead a rally here Saturday against this city's Somali refugees was arrested yesterday by federal agents in Chicago on charges of soliciting the murder of a US judge."

Elsewhere, the first Hispanic woman to head the highest court of any state has just been selected to serve as the Chief Justice of the Supreme Court of New Mexico, according to this article. Finally, an editorial in today's edition of The Seattle Post-Intelligencer is entitled "There's not enough $$ to make up for felled trees," and you can access here a news article from the same publication entitled "Judge said to cut trees, worker says."
Posted at 06:32 by Howard Bashman



In Thursday's newspapers: Charles Lane of The Washington Post reports in a very interesting article which you can access here that Associate Justice Clarence Thomas has agreed to sell his memoirs to HarperCollins -- owned by conservative media baron Rupert Murdoch -- for a seven figure advance, which "appears to be the most lucrative ever for a sitting member of the modern Supreme Court." The book is expected to go on sale in the fall of 2005. You can access here an article entitled "Democrats Set to Fight Pickering Nomination: Filibuster Hinted Against Miss. Judge." The Post reports here that "Judges Uphold U.S. Detention of Hamdi; Courts Must Yield to Military on 'Enemy Combatants,' 4th Circuit Rules." And this article reports that "The Virginia State Crime Commission has asked the state Supreme Court to delay implementing a proposal that would give felons more time to bring forward new evidence of innocence, saying the controversial issue belongs in the hands of lawmakers."

The New York Times contains an editorial entitled "The Revenge of Trent Lott" that denounces the renomination to the Fifth Circuit of District Judge Charles W. Pickering, Sr. Relatedly, reporter Neil A. Lewis has an article entitled "Federal Judge Again Fuels Partisan Fight." In other news, "U.S. Is Allowed to Hold Citizen as Combatant," this article reports. The article attributes the Fourth Circuit's opinion to a single judge on the panel, overlooking that the decision was issued collectively by all three judges on the panel, which courts do on very rare occasion when an especially significant unanimous ruling is being delivered. The Washington Post's article, by contrast, did not overlook this detail. You can access here an article from The NYTimes entitled "White Supremacist Is Held in Ordering Judge's Death."

Finally for now, The Wall Street Journal contains an editorial that applauds yesterday's Fourth Circuit decision allowing the continued detention of alleged enemy combatant Yaser Esam Hamdi.
Posted at 00:06 by Howard Bashman



Wednesday, January 08, 2003
Jason Hoppin of The Recorder identifies two new potential Ninth Circuit nominees: Jason's article begins:
The Bush administration intends to nominate San Francisco Superior Court Judge Carlos Bea and Third District Court of Appeal Justice Consuelo Callahan to the 9th U.S. Circuit Court of Appeals, according to several sources.
According to the article, which you can access here, Judge Bea is currently 68 years old. Associate Justice Callahan's official biography is available at this link.
Posted at 23:01 by Howard Bashman



Issue four -- what is a blog? On this past weekend's episode of The McLaughlin Group, host John McLaughlin learned the answer to that question. You can access the transcript here (either search for the word "blog" or scroll slightly more than halfway down the page). Thanks to the author of Statutory Construction Zone for sending along this item.
Posted at 20:55 by Howard Bashman



And now for something completely different: Earlier today I linked to an analysis of the possible outcomes that the U.S. Supreme Court could reach in the cases challenging the University of Michigan's policies of racial preferences in student admissions.

This evening, a California-based reader sent along the following email:
In an article in the UC Berkeley paper, a member of the beautifully named "Coalition to Defend Affirmative Action By Any Means Necessary" says that if the court sides with the University of Michigan in Grutter, that will overturn Prop 209: "The U.S. Supreme Court is the high court of the United States. California will be just as subject to the federal law now as Alabama was when Brown v. Board of Education was decided in 1954. If the U.S. Supreme Court upholds affirmative action in these two key cases, Proposition 209 and the other measures of the same spirit across the country would be so many dead letters."

Clearly the author is unaware of the distinction between the 14th amendment forbidding discrimination (or permitting it) on one hand, and requiring it on the other--only the latter of which, obviously, would overturn Prop. 209.

But the UC Davis paper does no better. That school's California Aggie contains an item which is written as a news, not an opinion, article, and it says that "In a 1997 case prompted by the American Civil Liberties Union against Proposition 209, the Ninth Circuit Court of Appeals ruled for the proposition on the basis of it being 'barely constitutional.'" Now, of course, the actual language in Coalition for Economic Equity v. Wilson, 122 F.3d 692, 709 (9th Cir. 1997), was that "The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits." In other words, discrimination is not mandated by the Fourteenth Amendment since the Fourteenth Amendment "barely permits" it. The quote marks around "barely constitutional" in the UC Davis article are a complete fabrication. (Not a mistake--the phrase "barely constitutional" appears in no case in the entire Lexis database).

Anyhow, thought you'd find that interesting.
Indeed I have. Thanks for sending this along.
Posted at 20:44 by Howard Bashman



Some early newspaper coverage of today's Fourth Circuit ruling in the Hamdi case: You can access coverage here from The New York Times and here from The Washington Post. Meanwhile, thanks to a reader who clerked a number of years ago for a Fourth Circuit judge, "How Appealing" posted news of the Fourth Circuit's ruling today in the Hamdi case at 1:23 p.m. eastern time, more than an hour before The Associated Press first issued a News Alert about the ruling.
Posted at 19:05 by Howard Bashman



Senator Patrick J. Leahy issues press release criticizing President Bush's renomination of Charles W. Pickering, Sr. to serve on the Fifth Circuit: You can access the press release here. (Via Jurist.)
Posted at 18:51 by Howard Bashman



A bit more tree cutting news coverage and commentary: Today's edition of The Seattle Times reports here that "Landscaper contradicts judge in tree-cutting case." A columnist writing in today's edition of The Seattle Post-Intelligencer has an essay entitled "It's a clear cut case of injustice to let judge off for Colman Park massacre." Yesterday, a columnist for The Seattle Times wrote a piece entitled "Justice, trees both take a fall." And yesterday's edition of The Seattle Times also contained a news article captioned "Judge won't face charges: Tree-cutting decision creates furor."
Posted at 17:44 by Howard Bashman



Ninth Circuit Judge won't face felony charges for chopping down trees: Yesterday's edition of The Seattle Post-Intelligencer contained an article that begins:
It was wrong for a federal judge who wanted a better view of Lake Washington to allow his gardener to cut down 120 trees in a public park. But the judge committed an error, not a felony, King County prosecutors decided yesterday.

Jerome Farris, a senior judge with the 9th U.S. Circuit Court of Appeals, mistakenly believed he had permission from the city to cut down the trees in Colman Park next to his gated home, King County Prosecutor Norm Maleng said at a news conference. Farris has cooperated fully with the investigation, Maleng said.

Maleng's decision, which came months after the park damage was discovered, angered Seattle park authorities and environmentalists.

"This tree massacre was a criminal violation; it is against the law to cut trees on public property to enhance private views," said Lauren Braden, the Audubon Society's Seattle-based advocate for wildlife habitat. "This person deserves just punishment."

Maleng referred the case to the City Attorney's Office, which is weighing both a civil suit and misdemeanor criminal charges against the judge. The damage to the park may cost $200,000 or more to make right.

County prosecutors decided against pursuing malicious mischief charges against Farris, accusations usually reserved for such vandals as graffiti artists, Maleng said.

"Based on investigation, I have concluded that the trees were cut down as a result of a series of misunderstandings," Maleng said.

"Park property was injured and must be restored. That principle is not in dispute by any party to this matter, including Judge Farris, who has pledged his intention to repay the city for the costs related to cleanup and restoration of Colman Park."
You can access the complete article at this link.
Posted at 17:32 by Howard Bashman



A devilish dispute: The U.S. Court of Appeals for the Tenth Circuit on Monday of this week "upheld the decision of a federal judge who dismissed a lawsuit accusing Amway Corp. of spreading rumors linking Proctor & Gamble to devil worship." The Associated Press has this report. And you can access the Tenth Circuit's ruling at this link.
Posted at 17:07 by Howard Bashman



A post about nothing much: It turns out that tomorrow will be ABA Journal photo day for me (more details here), and I'm to wear a colorful shirt (leaving me a choice between blue and blue and white stripes), and one of the two photos will supposedly require a lot of set-up by the photographer. Hmm, perhaps I should contact my lawyer. Of course, this all means that I arrived safely back in Philadelphia late this morning. The trip to Kansas City was wonderful, and it was especially nice to meet two lawyers based there who are especially big fans of the blog.

Meanwhile, today this email arrived from someone who is currently clerking for an appellate judge:
When are the first interviews for 20 Questions slated to show up? I would like to convince my camera-shy judge to participate, but I think it would be better to have concrete examples of your sensitivity to judicial discretion in hand before I give her the hard sell. I hope to convince her because (as many clerks will tell you about their own judges!) she's the greatest, smartest and generally bestest appellate judge around.

Thank you so much for your hard work. You must know that "How Appealing" has started a kind of good-natured competition. Among the clerks, we bet on who is going to get a shout out for what opinion when! "The Bashman mention" is a kind of badge of honor.
The answer to your question is that the first interview will show up in early February. In fact, I spent part of my flight out to Kansas City drafting questions for the first participant, and now I have to delete some from the list because I miraculously came up with more than 20.

On my flight back this morning, I wrote most of my monthly appellate column that will be published on Monday, January 13, 2003. It is tentatively entitled "In 2002, Small But Important Gains Were Achieved In The Battle To Abolish Non-Precedential Federal Appellate Opinions." The column not only looks back at last year but also looks toward the future. If you'd like to receive a copy of the column in PDF format on the day of its publication next Monday in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, you can complete a free and easy sign-up form available at this link.
Posted at 16:35 by Howard Bashman



"White Supremacist Charged With Soliciting Judge's Murder": The Associated Press is reporting that "The leader of a white supremacist group was arrested Wednesday on charges he tried to have a federal judge murdered." (Via Southern Appeal.)
Posted at 16:24 by Howard Bashman



"Bush Defends Renomination of Pickering": The Associated Press offers this report. And you can access the portions of the transcript of today's White House press briefing that deal with U.S. District Judge Charles W. Pickering, Sr.'s renomination here, here, and here.
Posted at 15:45 by Howard Bashman



"Democrats Mobilizing to Fight Bush Judicial Nomination": An article posted this afternoon to the Web site of The New York Times reports:
WASHINGTON, Jan. 8 -- Two Democratic senators said today that they would oppose President Bush's renomination of Judge Charles W. Pickering Sr. of Mississippi to a federal appeals court.

Senators Charles E. Schumer of New York and Richard Durbin of Illinois, both members of the Judiciary Committee, condemned the renomination of Judge Pickering and said they would do all in their power to thwart it, including a filibuster, if necessary.
You can access the complete article at this link.
Posted at 15:24 by Howard Bashman



"Give me Internet access or give me death!" Those aren't exactly the words that Patrick Henry delivered on March 23, 1775, but on Monday of this week (in an opinion just posted online today), the U.S. Court of Appeals for the Third Circuit ruled that a federal district court improperly infringed on the liberty rights of a defendant who had pleaded guilty to receipt and possession of child pornography when the district court imposed as a condition of supervised release a prohibition against the possession of any computer in the defendant's home and against the use of any on-line computer service without the written approval of the probation officer.

The opinion explains:
We also agree with Freeman that a special condition forbidding him from possessing any computer in his home or using any on-line computer service without the written approval of the probation officer is overly broad; it involves a greater deprivation of liberty than is reasonably necessary to deter future criminal conduct and to protect the public. 18 U.S.C. sec. 2553(a)(2). United States v. Sofsky, 287 F.3d 122, 124 (2d Cir. 2002) (vacating condition that would require probation officer to approve all computer and internet access by a defendant who pled guilty to receiving child pornography over the internet).

As in Sofsky, a total ban on internet access prevents use of email, an increasingly widely used form of communication, and other common-place computer uses such as getting a weather forecast or reading a newspaper online. Id. at 126. There is no need to cut off Freeman's access to email or benign internet usage when a more focused restriction, limited to pornography sites and images, can be enforced by unannounced inspections of material stored on Freeman's hard drive or removable disks. Id. Although we have previously allowed a condition restricting all internet access, see United States v. Crandon, 173 F.3d 122, 125 (3d Cir. 1999), the defendant in Crandon used the internet to contact young children and solicit inappropriate sexual contact with them. Such use of the internet is harmful to the victims contacted and more difficult to trace than simply using the internet to view pornographic web sites. There is nothing in this record to suggest that Freeman has used the internet to contact young children. We are not in any way limiting our ability to so restrict the use of computers when a defendant has a past history of using the internet to contact children. See United States v. Lee, ___ F.3d ___, ___ fn 1 (3d Cir. 2002) (Condition 5 of supervised release prohibits defendant from owning or using a personal computer with Internet access in his home, except for work). Moreover, if Freeman does not abide by more limited conditions of release permitting benign internet use, it might be appropriate to ban all use. Under the record before us, however, it is not reasonably necessary to restrict all of Freeman's access to the internet when a more limited restriction will do.
So remember readers, you are not just reading an appellate Web log right now; you are exercising your constitutionally protected right to liberty. The Third Circuit's ruling is available at this link.
Posted at 15:01 by Howard Bashman



Consider the possibilities: On the brand new law blog Sub Judice, which consists of a discussion between two anonymous "recently minted lawyers," you can access an interesting post about the possible ways that the U.S. Supreme Court could rule in the University of Michigan racial preferences in student admissions cases.
Posted at 14:46 by Howard Bashman



"Pickering looks forward to judgeship": Today's edition of The Hattiesburg American contains an article that begins, "Hattiesburg-based U.S. District Judge Charles Pickering said Tuesday he looks forward to being confirmed to a post on the 5th U.S. Circuit Court of Appeals."
Posted at 14:09 by Howard Bashman



BREAKING NEWS -- Fourth Circuit rejects appeal by alleged enemy combatant Yaser Esam Hamdi and orders dismissal of his habeas corpus petition: Today the U.S. Court of Appeals for the Fourth Circuit issued an opinion, signed by all three judges on the panel, that begins:
Yaser Esam Hamdi filed a petition under 28 U.S.C. sec. 2241 challenging the lawfulness of his confinement in the Norfolk Naval Brig. On this third and latest appeal, the United States challenges the district court's order requiring the production of various materials regarding Hamdi's status as an alleged enemy combatant. The district court certified for appeal the question of whether a declaration by a Special Advisor to the Under Secretary of Defense for Policy setting forth what the government contends were the circumstances of Hamdi's capture was sufficient by itself to justify his detention. Because it is undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict, we hold that the submitted declaration is a sufficient basis upon which to conclude that the Commander in Chief has constitutionally detained Hamdi pursuant to the war powers entrusted to him by the United States Constitution. No further factual inquiry is necessary or proper, and we remand the case with directions to dismiss the petition.
And the opinion concludes:
It is important to emphasize that we are not placing our imprimatur upon a new day of executive detentions. We earlier rejected the summary embrace of "a sweeping proposition -- namely that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so." Hamdi II, 296 F.3d at 283. But, Hamdi is not "any American citizen alleged to be an enemy combatant" by the government; he is an American citizen captured and detained by American allied forces in a foreign theater of war during active hostilities and determined by the United States military to have been indeed allied with enemy forces.

Cases such as Hamdi's raise serious questions which the courts will continue to treat as such. The nation has fought since its founding for liberty without which security rings hollow and for security without which liberty cannot thrive. The judiciary was meant to respect the delicacy of the balance, and we have endeavored to do so.

The events of September 11 have left their indelible mark. It is not wrong even in the dry annals of judicial opinion to mourn those who lost their lives that terrible day. Yet we speak in the end not from sorrow or anger, but from the conviction that separation of powers takes on special significance when the nation itself comes under attack. Hamdi's status as a citizen, as important as that is, cannot displace our constitutional order or the place of the courts within the Framer's scheme. Judicial review does not disappear during wartime, but the review of battlefield captures in overseas conflicts is a highly deferential one. That is why, for reasons stated, the judgment must be reversed and the petition dismissed. It is so ordered.
You can access the complete ruling at this link.
Posted at 13:23 by Howard Bashman



Elsewhere in Wednesday's newspapers: Reporter David G. Savage of The Los Angeles Times has an article entitled "With GOP Running Senate, Bush Renames Rejected Judges."

Joan Biskupic of USA Today reports here that "President repeats choice for judge job."

And finally, The Boston Globe contains an article reporting that "the Supreme Judicial Court ruled yesterday that lawmakers did not abuse their constitutional authority when they decided to take away some administrative powers of judges 14 months ago."
Posted at 06:28 by Howard Bashman



In Wednesday's newspapers: In The Washington Post, Mike Allen and Charles Lane have a front page article reporting that "President Renominates Miss. Judge, 29 Others." Another front page article reports that "Large Racial Disparity Found in Study of Md. Death Penalty."

The New York Times reports here that "President Renominating Federal Judge Lott Backed." And reporter Adam Liptak has an article entitled "Death Penalty Found More Likely When Victim Is White."

At OpinionJournal, Linda Chavez has an essay entitled "Don't Go Wobbly, Mr. Bush! Take a stand against racial preferences."
Posted at 00:10 by Howard Bashman



Access The White House's press release on yesterday's judicial (re)nominations: It is available here. One item that the press so far has not mentioned is that William H. Steele, whom President Bush last year had nominated to fill an Eleventh Circuit vacancy, was nominated yesterday to fill a federal district court vacancy in Alabama instead. As a result, someone else will now be nominated to fill the Eleventh Circuit vacancy.
Posted at 00:04 by Howard Bashman



Tuesday, January 07, 2003
"The reader's familiarity with the fundamentals of molecular biology, genetics, and recombinant DNA technology * * * is presumed": I knew there had to be a good reason why the U.S. Court of Appeals for the Federal Circuit is not among the federal appellate courts whose rulings I review on a daily basis.

An opinion that the Federal Circuit issued yesterday explains:
As the district court set out in painstaking detail the basics of the underlying technology, we will provide only a brief summary here. The reader's familiarity with the fundamentals of molecular biology, genetics, and recombinant DNA technology necessary to this appeal is presumed.[fn.1]
1. For further reading on these subjects, see generally Robert A. Meyers, ed., Molecular Biology and Biotechnology: A Comprehensive Desk Reference, VCH Publishers (1995); Benjamin Lewin, Genes VII, Oxford Univ. Press (2000); James D. Watson et al., Recombinant DNA (2d ed. 1992).
Thanks to the reader who drew this decision to my attention in an email that began, "How to discourage the reading of an appellate decision."
Posted at 23:17 by Howard Bashman



Available online at law.com: Tony Mauro reports here on the "Alpha Rehnquist." The Supreme Court of Pennsylvania's view that nude dancing is constitutionally protected has its alcohol-related limits, this article reports. You can access the Pa. Supreme Court's ruling here. Finally, this article from the New York Law Journal reports that "Campaign Leads Commission to Vote for Judge's Removal."
Posted at 23:09 by Howard Bashman



Divided Fourth Circuit panel rules that justice demands one-day tolling of statute of limitations applicable to habeas petition in death penalty case: Today the U.S. Court of Appeals for the Fourth Circuit issued a ruling that reversed a federal district court's dismissal of a death row inmate's federal habeas corpus petition filed one day after the expiration of the applicable statute of limitations.

According to the majority opinion:
Rouse faces his death with reason to believe that one of the twelve citizens entrusted with doing impartial justice in his case sought so eagerly to condemn him that the juror deliberately misled the court by hiding basic facts as to his particular bias against Rouse and his contempt for all African-Americans. In Rouse's interest and in the interest of justice, we will not allow one day's delay to rob a man on death row of all federal habeas review of such a serious and troubling claim. Although tolling will remain extremely infrequent even in capital cases, we must recognize the rare circumstance in which equity demands tolling.

For these reasons, we believe that the district court was incorrect in refusing to toll the statute of limitations by one day. Accordingly, we must grant a certificate of appealability. Whether Rouse can prove his allegations of juror bias, or any of his other underlying claims, remains to be seen.
Circuit Judge Karen J. Williams dissented in an opinion that begins:
I agree with the majority's conclusion that Rouse's petition was untimely because it was filed more than one year after the state court denied Rouse's petition for certiorari. I disagree, however, with the majority's conclusion that ordinary attorney error coupled with sensational allegations justifies equitable tolling in capital cases. I would affirm the district court's decision that equitable tolling is not appropriate in this case. Equitable tolling "is appropriate when, but only when, 'extraordinary circumstances beyond [the petitioner's] control prevented him from complying with the statutory time limit.'" Spencer v. Sutton, 239 F.3d 626, 630 (4th Cir. 2001) (quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)). Rouse has not shown extraordinary circumstances beyond his control. By allowing ordinary attorney error to equitably toll the limitations period, the majority upsets the careful balance that Congress crafted in the Antiterrorism and Effective Death Penalty Act (AEDPA) statute of limitations, even where, as here, it is plain that the petitioner is guilty and properly convicted of an extraordinarily heinous crime. Thus, I respectfully dissent.
You can access the majority and dissenting opinions at this link.
Posted at 22:50 by Howard Bashman



Indigent prisoner doesn't become liable to pay full civil action federal court filing fee immediately upon release from prison: The U.S. Court of Appeals for the Fourth Circuit today ruled:
A released prisoner should not have to shoulder a more difficult financial burden than the average indigent plaintiff in order to continue his lawsuit. While preventing frivolous lawsuits is a legitimate reason for requiring prisoners to overcome additional financial hurdles when filing suits, the same rationale does not dictate that recently-released prisoners become instantly liable for the remaining filing fee balance simply because they have been released.
You can access the Fourth Circuit's opinion at this link. Today's decision represents a win for the Appellate Litigation Clinic of the University of Virginia School of Law.
Posted at 22:26 by Howard Bashman



To err is human: I can understand issuing an errata, as the U.S. Court of Appeals for the First Circuit did today, to add quotation marks around a shortened reference to a case name, but is it necessary to issue an errata to change the "th" in 7th from superscript to regular text?
Posted at 21:58 by Howard Bashman



"Bush Renominates Pickering, Other Judges": The Associated Press has this report.
Posted at 20:02 by Howard Bashman



USA Today declares death penalty unconstitutional for offenses committed before the age of eighteen: Thanks to the reader who drew to my attention that the cover story about the death penalty in today's issue of USA Today asserts: "The U.S. Supreme Court ruled last year that states cannot execute killers who are under 18 when they commit their crimes."

USA Today is absolutely wrong on that point, for reasons that I explain here, here, and here.
Posted at 19:17 by Howard Bashman



More news articles about federal appellate nominees than you might imagine possible: With the U.S. Senate back in session, "How Appealing" is pleased to offer an abundance of recent news articles about federal appellate court nominees.

For starters, newly elected Senator John Cornyn (R-TX) will be serving on the Senate Judiciary Committee, and that's excellent news for Fifth Circuit nominee Priscilla R. Owen, according to this article from The Houston Chronicle. The Fort Worth Star-Telegram reports here that "Cornyn tapped for Judiciary." And you can access here an Associated Press report entitled "Cornyn Gets Assignments on Three High Level Senate Committees."

In news pertaining to the U.S. Court of Appeals for the Sixth Circuit, The Cincinnati Enquirer reports here that "Big changes likely for 6th Circuit Court: GOP majorities in the House and Senate will permit Bush to reorder the courts." The Enquirer also provides a sidebar describing the newly confirmed Sixth Circuit judges and the pending nominees to that court. The Beacon Journal of Ohio contains an editorial entitled "A Cook tour: At last, Deborah Cook will get a hearing on her nomination to the federal bench. Her critics should get to know her." The editorial concludes, "In Deborah Cook, [the Republicans] have a judge most deserving of confirmation, one dedicated to judicial restraint."

In news pertaining to the Eleventh Circuit and Alabama in particular, The Sun Herald reports here that "Pryor being considered for federal appeals court." The Decatur Daily offers a similar (but not identical) report here. And the Mobile Register reports here that "Lawyers call for black federal judge; Demand prompted by speculation U.S. Magistrate William Steele will be nominated."

In other news, The Tennessean contains an editorial endorsing well-deserved pay raises for federal judges. You can access here an article entitled "Jewish groups reverse course; to weigh in on judicial selection."

And finally, for those who can't believe that Ralph G. Neas of the People for the American Way issued a memorandum to journalists entitled "The Approaching Armageddon on Judicial Nominations," the full text of that memorandum is available here.
Posted at 18:32 by Howard Bashman



"Judicial 'Armageddon'": You can access today's Wall Street Journal editorial bearing that title at this link.
Posted at 14:12 by Howard Bashman



Divided D.C. Circuit panel allows collateral order review of denial of attorney client-privilege in case of U.S. government vs. big tobacco: Today a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled 2-1 that the court could exercise collateral order review of the trial court's denial of a claim of attorney-client privilege asserted by British American Tobacco (Investments) Ltd., one of six defendants in the federal government's lawsuit against tobacco companies alleging that defendants violated the civil provisions of RICO by engaging in "a pattern of racketeering activity" to "conceal the health risks of cigarette smoking and the addictiveness of nicotine." Circuit Judge A. Raymond Randolph dissented from the ruling and would have held that appellate jurisdiction was lacking.

Prior to today's D.C. Circuit ruling, the U.S. Court of Appeals for the Third Circuit was the only federal appellate court to allow collateral order review of rulings that rejected a party's assertion of attorney-client privilege, as I explained toward the end of the installment of my monthly appellate column published in March 2002.

You can access today's D.C. Circuit ruling at this link.
Posted at 14:05 by Howard Bashman



The new U.S. Congress convenes today: The U.S. Senate's Web site contains a page listing new Senators. I assume that the Senate Judiciary Committee's Web site will soon be updated to note that Republicans are now in control and to reflect the committee's new membership.
Posted at 07:43 by Howard Bashman



Elsewhere in Tuesday's newspapers: Today's edition of USA Today contains a front page article entitled "Death penalty gains unusual defenders."

The Los Angeles Times reports here that "Ruling Expands Scope of Rape: State Supreme Court says a man can be convicted if a woman changes her mind and withdraws her earlier consent." You can access the ruling in question here. In an editorial, The LATimes calls the accelerated administrative appeal procedures in deportation cases a "Travesty for Immigrants." You can access here an article entitled "City Dodges Contempt Ruling, Permits Synagogue Expansion." Finally, the newspaper prints a letter to the editor from UCLA Law Professor Paul Bergman about the consideration of race in law school student admissions.
Posted at 07:23 by Howard Bashman



In Tuesday's newspapers: In The New York Times, reporter Adam Liptak has an article entitled "Growing Rowdier, TV Reality Shows Are Attracting Suits." And you can access here an article entitled "American Indians Say Government Has Cheated Them Out of Billions."

The Christian Science Monitor reports here that "After 50-year fight, women get the gavel" in Egypt. And you can access here an article entitled "Not a rubber-stamp Congress: House and Senate convene today with Bush ascendant. But key players also have own agendas."

Finally for now, The Washington Post reports here that "Conservative political leaders and activists in Virginia said today they hope the General Assembly session that begins Wednesday will pass several new restrictions on abortion."
Posted at 00:21 by Howard Bashman



Monday, January 06, 2003
Available online at law.com: The Recorder reports here on the California Supreme Court's ruling today that "Rape Can Occur Even After Consent." Jonathan Ringel reports here that the U.S. Court of Appeals for the Eleventh Circuit on Friday will hear oral argument in an appeal in which the "U.S. Seeks Share of Breast Implant Payout."

Two items from The Legal Times (free registration required) are worth a look. You can access here Jonathan Groner's article entitled "Circuit's New Citation Rule: Few Takers: In 2002, D.C. lawyers made little use of unpublished cases." And you can access here a commentary by Ronald K.L. Collins entitled "Let Nike Talk."
Posted at 21:50 by Howard Bashman



Cruel and unusual: Last Term, the Supreme Court of the United States ruled 6-3, in Atkins v. Virginia, that executing the mentally retarded violates the Eighth Amendment's prohibition on cruel and unusual punishment.

This past Friday, a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit concluded in a decision you can access here that the Supreme Court required the Fifth Circuit to engage in a pointless exercise when the Supreme Court vacated and remanded the Fifth Circuit's prior ruling in this case for reconsideration in light of Atkins. Did Justice John Paul Stevens, the author of the majority opinion in Atkins, make a mistake in remanding this case for reconsideration in light of Atkins, or did Texas fail to explain adequately in opposing the prisoner's petition for writ of certiorari that the question presented in Atkins was irrelevant?

Update: Law Professor Philip A. Pucillo (click here and scroll down for bio) of the Ave Maria School of Law emails to say:
I don't think it's fair to pin the remand decision in Tennard on Justice Stevens alone. He simply authored the majority opinion in Atkins. My understanding is that, because the matter would come before the Supreme Court on a petition for a writ of certiorari, a decision to summarily vacate and remand a court-of-appeals decision for further consideration in light of a recently decided Supreme Court precedent must have the agreement of at least four Justices (in other words, the regular rule of four applies).
On the contrary, my understanding is that the Justice who writes an opinion makes the decision about which other cert. petitions should be vacated and remanded for reconsideration in light of the new ruling. While it is of course correct that a majority of the Court could overrule the authoring Justice's determination, I understand that the authoring Justice's recommendation is given very substantial deference by the other Justices. If my understanding is wrong, I'm sure I will soon hear from many of this blog's readers who will be more than willing to correct me.
Posted at 21:22 by Howard Bashman



Bank robber who states "I have a gun" communicates "threat of death," Fifth Circuit rules: You can access today's ruling of the U.S. Court of Appeals for the Fifth Circuit at this link.
Posted at 20:56 by Howard Bashman



"Calif. Supreme Court Ruling Defines Rape": Today the Supreme Court of California issued a decision that begins:
We granted this case to settle a conflict in Court of Appeal decisions as to whether the crime of forcible rape (Pen. Code, sec. 261, subd. (a)(2)) is committed if the female victim consents to an initial penetration by her male companion, and then withdraws her consent during an act of intercourse, but the male continues against her will. (Compare People v. Vela (1985) 172 Cal.App.3d 237 (Vela) [no rape committed] with People v. Roundtree (2000) 77 Cal.App.4th 846 (Roundtree) [rape committed].) We agree with Roundtree and the Court of Appeal in the present case that a withdrawal of consent effectively nullifies any earlier consent and subjects the male to forcible rape charges if he persists in what has become nonconsensual intercourse.
The Associated Press has this report on the ruling.
Posted at 20:45 by Howard Bashman



Eugene Scalia steps down as Labor Department lawyer: The Associated Press offers this report.
Posted at 20:35 by Howard Bashman



Ten days and counting: The opening briefs for petitioners are due to be filed in the Supreme Court of the United States on January 16, 2003 in the University of Michigan racial preference in student admissions cases. There has been speculation in the press recently about whether the federal government will file an amicus brief in those cases and, if so, which side the federal government will support.

The answers to these questions may also be known on January 16th, because the Supreme Court's rules specify that "[t]he [amicus] brief shall be submitted within the time allowed for filing the brief for the party supported, or if in support of neither party, within the time allowed for filing the petitioner's or appellant's brief." Thus, if the federal government decides to support the students who are challenging the racial preferences, or if the federal government files a brief that supports the position of neither party, its amicus brief will be filed on or before January 16th. It will also be very interesting to see whether the federal government will keep us guessing until then regarding its intentions in these cases. Stay tuned!
Posted at 17:03 by Howard Bashman



The many perils of home improvement: This past Friday, the U.S. Court of Appeals for the Second Circuit affirmed the denial of a state court convict's habeas corpus petition which alleged that the State of Connecticut violated the constitutional prohibition against double jeopardy when it retried him for the offense of "offering to make home improvements without being registered" after an earlier trial on those same charges was terminated, at its conclusion, due to the trial court's erroneous belief that the prosecution violated the applicable statute of limitations.

What makes this ruling worthy of note is the following discussion:
Comity, as recognized in the AEDPA, mandates that lower federal courts yield to many state court interpretations of federal law even when such interpretations are wrong, so long as they are reasonable. But just as state courts enjoy a special expertise in matters of state law, by which federal courts often wish to be guided, so federal district and circuit courts have a particular knowledge of federal law, which state courts faced with federal questions may want to consult. Given the absence of "reverse" certification from state courts to federal courts of appeals and the minimal likelihood of certiorari to the Supreme Court of the United States, the only way state courts can do this, should they want to, is if federal courts state their views of federal law, even when a different view is not unreasonable. For this reason, it is often appropriate in considering a habeas petition under the AEDPA for the federal court to go through two steps: first, the court determines what the correct interpretation of Supreme Court precedent is; second, if the state court's understanding or application of that precedent is determined to be erroneous, the federal court must still ask whether that error was a reasonable one.
Circuit Judge Robert D. Sack issued a concurring opinion in which he observes that the majority opinion's discussion of "these devilishly difficult double jeopardy questions" constitutes pure dicta in which Judge Sack does not join.
Posted at 15:32 by Howard Bashman



Seventh Circuit to hear free press college newspaper oral argument tomorrow: Today's edition of The Chicago Tribune is reporting:
In late October 2000, an administrator at south suburban Governors State University called the company that printed the school newspaper and ordered it to stop publication.

The reason given by Dean of Student Affairs Patricia Carter: No one from the university had reviewed the paper for journalistic quality and that it may have contained "grammatical errors."

That action prompted a legal battle between the student editors and the university over freedom of speech and alleged censorship by the administration that will be played out Tuesday in a federal appeals court in Chicago.

College administrators, constitutional law experts, journalism groups and students at other colleges across the country are closely watching the case.

College journalists at public schools and free-press advocates worry that a ruling on behalf of the university will choke off their 1st Amendment right to free expression in the often-lively campus press.
You can access the Brief for Appellant Patricia Carter, the University Dean responsible for student activities, at this link, you can access an amicus brief filed in support of the student journalists-appellees at this link, and you can access Dean Carter's reply brief at this link.
Posted at 15:18 by Howard Bashman



"Kan. Judge OKs Gov't Panels' Secrecy": The Associated Press reports here that "Teams appointed by Kansas' governor-elect to review state government efficiency can meet in secret, a judge ruled Monday, rejecting a legal challenge by news organizations." For the record, this court proceeding has nothing to do with why I'm in Kansas at this moment.
Posted at 14:42 by Howard Bashman



New York will soon join list of States where women rule: Newsday is reporting:
Gov. George Pataki nominated Susan Phillips Read, the governor's former deputy counsel, to the state's highest court today.

If she is confirmed, as expected, by the Republican-controlled state Senate, Read will become the fourth woman on the seven-member Court of Appeals.
The article goes on to note:
She will also represent the fourth selection by Pataki to the Court of Appeals in his four-year, six-day tenure as Republican governor of New York. Until the retirement on Dec. 31, 2002, of Judge Howard Levine, a majority of the judges on the court had been nominees of former Democratic Gov. Mario Cuomo.
You can access the complete article at this link.

For those keeping track, this blog entry constitutes the fifth in installment of the "Women rule!" series that "How Appealing" has published. You can access the earlier installments here, here, here, and here.

Update: Two readers (including one who is a law clerk on the U.S. Court of Appeals for the Sixth Circuit) have emailed to note that Governor Pataki has served for over a little more than eight years in that post, not "four years and six days" as mentioned in the Newsday article.
Posted at 14:33 by Howard Bashman



Yes and no: Jonathan Adler says "yes" to the possibility that Alabama Attorney General Bill Pryor will be nominated to fill a vacancy on the U.S. Court of Appeals for the Eleventh Circuit, while Sam Heldman says "no." I first reported on this possibility last night in a post that you can access here.
Posted at 09:32 by Howard Bashman



"President Bush is preparing to re-fight one, and perhaps two, of the most-contentious judicial-confirmation battles of the last year": That's what Byron York is reporting this morning at National Review Online.
Posted at 09:28 by Howard Bashman



Today's FindLaw commentary: Not content to await part three of the Amar brothers' three-part series discussing the role that stare decisis should play in the U.S. Supreme Court's constitutional adjudications, today FindLaw commentator Joanne Mariner expresses her objections to the theories expressed in the first two parts of the Amar brothers' analysis.
Posted at 07:25 by Howard Bashman



Elsewhere in Monday's newspapers: USA Today contains an article entitled "Congress has new faces, old problems." The article concludes with the observation, "The Lott controversy will also put pressure on Republicans to reconsider some of their judicial nominees and soften their stands on affirmative action and other civil rights issues."

Today's edition of The Los Angeles Times contains letters to the editor responding to Law Professor Jonathan Turley's recent op-ed that criticized the federal government's war on terror. And you can access here an article entitled "Home Cyber Schools, and Critics, Growing; Popular as a public school hybrid, they're also labeled an unfair drain on public funds."
Posted at 07:16 by Howard Bashman



In Monday's newspapers: Monday's edition of The Washington Post contains three items that mention Chief Justice William H. Rehnquist. U.S. Supreme Court correspondent Charles Lane has an article entitled "Will Chief Justice Retire . . . or Won't He?" The Post also contains an editorial entitled "Mr. Rehnquist's Pleas." Finally, you can access here a letter to the editor that runs under the headline "From Teachers, a Lesson for Judges."

The New York Times features an Editorial Observer by Brent Staples entitled "What the United States Army Teaches Us About Affirmative Action." And you can access here an article entitled "A Big-Name Defendant, and a Jury of Peers Without Names."
Posted at 00:07 by Howard Bashman



Sunday, January 05, 2003
Every bit as good as I had hoped, and better: With the informed guidance of barbecue aficionado / attorney T.J. Lynn, I had a most impressive introduction this evening to the wonders of Kansas City barbecue -- dinner at Fiorella's Jack Stack Barbecue in Overland Park. The beef burnt ends were delicious; the barbecue sauce top notch. And the Boulevard beer was the perfect accompaniment. Good thing I spent time on the treadmill this morning. Thanks also to a reader who emailed to make sure that I didn't miss this travel section feature about Kansas City from today's edition of The Atlanta Journal-Constitution.
Posted at 22:00 by Howard Bashman



Alabama Attorney General Bill Pryor may receive nomination to fill Eleventh Circuit vacancy: Today's edition of The Birmingham News contains this report.
Posted at 21:38 by Howard Bashman



In next week's news magazines: In Newsweek, columnist Anna Quindlen says laws prohibiting sodomy have got to go. And U.S. News and World Report contains a blurb about the death penalty in Illinois.
Posted at 19:13 by Howard Bashman



"I don't think we're in Kansas anymore": Actually, I am in Kansas right now -- Overland Park to be precise -- and the flight over to Kansas City, Missouri from Philadelphia was uneventful after take-off, but it was snowing to beat the band beforehand, which required a trip to the de-icing pad, and an approximately thirty minute delay from the start. In about half an hour from now, I'm off to dinner with a locally based attorney with one of Missouri's largest law firms who happens to be a big fan of the blog. Looks like barbecue will be on the menu. The hotel where I'm staying has a fabulous high-speed Internet connection, so more blogging may be on the agenda for later this evening.
Posted at 18:56 by Howard Bashman



En route to Kansas City: I will be departing for Kansas City soon, and of course I will be bringing with me all of the wonderful barbeque restaurant suggestions (see here and here) that this blog's readers have kindly provided. I will also be bringing the laptop computer with me, so it is possible that blogging may continue on a more limited basis over the next few days. I expect to be returning home midday Wednesday, so if any important developments occur while I am away that I cannot address from the road, I will be sure to reflect back on them upon my return home.
Posted at 08:57 by Howard Bashman



Elsewhere in Sunday's newspapers: From today's edition of The Los Angeles Times, you can access here an article entitled "Congress Is Ready to Return the Favor; The GOP is in control again, and many credit Bush. Republicans are set to push his agenda." Liberal FindLaw commentator Edward Lazarus reviews "First Among Equals," Kenneth W. Starr's recently-issued book about the U.S. Supreme Court. Lazarus calls the book "a real letdown." In an editorial, The LATimes contends that "The American people are losing rights and freedoms each time a federal judge sides with the Bush administration's blanket orders to close courtroom doors, silence detainees or withhold evidence from defense lawyers." Chief Justice William H. Rehnquist's recent, repeated call for overdue increases in the wages paid to federal judges has triggered a few letters to the editor opposing the request. And an op-ed you can access here looks at recent calls for increased sexual harassment training on campus.

Finally for now, The Boston Globe's magazine section contains a lengthy and detailed profile entitled "Kennedy Unbound: After 40 years in the US Senate, Edward M. Kennedy has transcended the family mythology and become his own man."
Posted at 07:30 by Howard Bashman



In Sunday's newspapers: The Week in Review section of The New York Times contains an article about affirmative action at the university level entitled "Affirmative Action Faces a New Wave of Anger." From New Orleans comes this amazing report that "Prosecutors' Morbid Neckties Add to Criticism." And Jennifer 8. Lee has an article entitled "Abortion Rights Group Plans a New Focus and a New Name." For those readers wondering whether Ms. Lee's middle initial is in fact the number 8, indeed it is, and an explanation awaits you here.

The Washington Post contains an article entitled "Prosecutors Map a Path of Terror; Evidence Ties Malvo, Muhammad to Shootings in D.C. Area, Investigators Say." "The Jury Room Is No Place for TV," columnist George Will argues here. Finally, you can access here an opinion piece regarding the battle over abortion rights in Maryland entitled "Flirting With Political Oblivion Over Abortion."
Posted at 00:15 by Howard Bashman



Saturday, January 04, 2003
"Old Business on New Congressional Agenda": Jesse J. Holland of The Associated Press has this report.
Posted at 22:31 by Howard Bashman



Denise Howell -- quite thoughtful, and too kind: Appellate lawyer Denise Howell, of the "Bag and Baggage" blog, has two characteristically thoughtful posts about my Web log's brand new monthly feature -- entitled "20 questions for the appellate judge" -- that will debut here in February 2003. You can access Denise's posts here and here. Although I did not announce this new feature until yesterday (Friday) afternoon, already two federal appellate judges and one justice on a state court of last resort have volunteered to take part, leaving only eight more interview slots open for the remainder of this calendar year. It's amazing the enthusiasm that this new feature has already begun to generate!
Posted at 20:48 by Howard Bashman



Available online from The Village Voice: Columnist Nat Hentoff has another essay about Yaser Esam Hamdi, and this one is entitled "'Does It Take a Lifetime to Question a Man?"
Posted at 20:24 by Howard Bashman



In Sunday's New York Times: Some of the content of tomorrow's edition of The New York Times is already available online. Here you can access a very interesting article entitled "A Jury Torn and Fearful in 2001 Terrorism Trial," and here you can access an article entitled "As Florida Boy Serves Life Term, Even Prosecutor Wonders Why."
Posted at 19:55 by Howard Bashman



This evening on C-SPAN's "America and the Courts": C-SPAN's fine program "America and the Courts" will rebroadcast this evening a speech that Professor Michal Belknap of the California Western School of Law delivered at the U.S. Supreme Court on December 11, 2002 on the subject of military courts and military tribunals. Professor Belknap's speech, sponsored by the Supreme Court Historical Society, follows an introduction from Justice Sandra Day O'Connor. If you miss the broadcast on cable, you can watch the program over the Web starting next week via this link.
Posted at 16:41 by Howard Bashman



"Fade to White: The only African American Republican in Congress is headed home. Can the party of Lincoln -- and Trent Lott -- afford the loss of J.C. Watts?": Jake Tapper addresses that question in the cover story of tomorrow's Washington Post Magazine.
Posted at 15:07 by Howard Bashman



A special U.S. Supreme Court argument in May 2003 for campaign finance reform? That's what United Press International legal affairs correspondent Michael Kirkland is predicting.
Posted at 15:05 by Howard Bashman



"Bumpy ride ahead in the Senate": Commentator Tom Jipping looks at the federal judicial nominees to be considered in 2003.
Posted at 15:03 by Howard Bashman



"Break Up 9th Circuit Appeals Court": The brand new edition of Human Events, a conservative weekly, contains a report suggesting that efforts to divide the U.S. Court of Appeals for the Ninth Circuit may have a better chance of succeeding now that Republicans will control both chambers of Congress.
Posted at 14:59 by Howard Bashman



Michael W. McConnell publicly sworn in to join Tenth Circuit: The Salt Lake Tribune has this report on yesterday's ceremony. The article states:
Still, after donning his black robe Friday, the unapologetic McConnell said the most difficult aspect of the nomination process was keeping his sometimes contentious views in check.

"My handlers in Washington told me not to do anything that might be deemed controversial," McConnell told some 200 well-wishers. "That was the hardest part."
The article also quotes Senator Orrin G. Hatch (R-UT) as saying: "With Michael McConnell, the Beltway mudslingers met their match." "He stood up to their attempts to defame his views."
Posted at 14:53 by Howard Bashman



In Saturday's newspapers: The Los Angeles Times has posted online an article due to be published tomorrow entitled "Fast Immigration Rulings Assailed as Sloppy, Unfair; Ashcroft's goal to clear backlog of appeals has judges deciding cases within minutes, usually against foreigners, a Times review finds." The newspaper reports here that Kevin Mitnick "will gain unsupervised access to computers and the Internet for the first time in eight years after serving a five-year prison sentence and three years of strict probation" for the offense of computer hacking.

In an editorial, The New York Times asks "Can the Courts Save Wilderness?" And you can access here an article entitled "Police Dragnets for DNA Tests Draw Criticism."

Today's edition of The Washington Post is reporting that "Legislators Driven to Win More Specialty License Plates." Often more specialty license plates leads to more litigation over the messages expressed in specialty license places. You can access here a front page article entitled "Florida Arrest Renews Debate Over Muslim Charities; Entrepreneur's Donations Linked to Supporting Terrorism."

The Boston Globe contains an article entitled "Asylum seekers turn to Canada; Arabs, Pakistanis cite US crackdown." A federal district judge in Boston has refused to declare the federal death penalty unconstitutional, The Globe reports here. And the U.S. Court of Appeals for the First Circuit "has upheld a US judge's decision to dismiss a lawsuit filed by a Brookline police officer who said the town and its police department retaliated against him after he accused his co-workers of wrongdoing," according to an article that you can access here.

The Indiana Supreme Court, by a vote of 3-2, yesterday temporarily blocked a state law that would have caused the posting online of the photographs and home addresses of convicted sex offenders. You can access coverage of this development here from The Indianapolis Star and here from the Chronicle-Tribune of Marion, Indiana.
Posted at 09:30 by Howard Bashman



Friday, January 03, 2003
Big day for new trials in the Seventh Circuit: The widow of a man killed when an Amtrak train he was hoping to board sped by him at a particularly high velocity allegedly causing a vortex that sucked him under the train, where he died, won a new trial today in the Seventh Circuit. As someone who takes the train to and from work most every day, being sucked into a speeding train's vortex initially seemed quite a frightening proposition to me, until I quickly recalled that the commuter train that I take doesn't speed much of anywhere. Rather, most of the time it sits still waiting for a signal change. I used to think this was a sign of bad service, but now I realize I'm actually being spared the risk of a deadly train-created vortex. You can access the Seventh Circuit's ruling here.

In a separate decision involving an asylum application, the Seventh Circuit ruled that an Immigration Judge could not refuse to allow the applicants to present their strongest evidence in favor of asylum simply because the IJ decided that the applicants' testimony lacked credibility. In a remarkable remand order, the Seventh Circuit all but required the agency to return the case for a new hearing to a different Immigration Judge because the Seventh Circuit would have returned the case to a different federal district judge had the case arisen on appeal from a federal trial court.
Posted at 23:35 by Howard Bashman



One can no longer safely wait till Judgment Day before appealing: The U.S. Court of Appeals for the Second Circuit today decided an appeal in which a bankruptcy court had failed ever to enter a final judgment, giving the aggrieved party an endless amount of time in which to appeal. Although the Second Circuit's opinion discusses Federal Rule of Civil Procedure 58 at length, today's opinion fails to note that effective December 1, 2002, Rule 58 was amended to eliminate the formerly endless period for appeal that used to apply in these circumstances. I don't mean to suggest that these amendments affected the result of today's case, but the court's failure even to mention the amendments may cause some readers of the opinion to think that the principles discussed in the opinion continue to apply to this day. I describe the effect of the 2002 amendments to Rule 58 about halfway into an appellate column of mine originally published in The Legal Intelligencer.
Posted at 23:34 by Howard Bashman



Now available online at law.com: law.com covers sex.com -- Jason Hoppin of The Recorder reports here on today's Ninth Circuit developments. Law Professor Arthur D. Hellman is quoted, whereas I remained entirely off the record for once in my comments to Jason. In other words, if you want my views scroll down or click here. And plenty of reader commentary is available as well.

Some very interesting cases will be considered for plenary review at the U.S. Supreme Court's conference one week from today. Tony Mauro summarizes them here. And Tony is also reporting on next Tuesday's issuance of a commemorative postage stamp honoring Thurgood Marshall, the first African-American to serve on the U.S. Supreme Court.

Finally, you can access here an article entitled "Ohio Court Creates Charity Funded by Punitives" and here an article entitled "Texas Supreme Court OKs Abortion Funding Restrictions."
Posted at 23:09 by Howard Bashman



A justice serving on a state court of last resort volunteers, dubitante, to participate in this Web log's newest feature: Received an email entitled "20 Questions for the appellate judge" from a justice serving on a state court of last resort. The email states, "My clerk from time to time forwards to me items of interest from your web log, and he called this to my attention today. I volunteer, dubitante." Well, volunteering dubitante is better than not volunteering at all. The current tally of interviewees -- one justice from a state court of last resort, and two U.S. Court of Appeals judges; one female jurist, and two male jurists. And only eight more interview slots open for calendar year 2003, so act now. More details available here.
Posted at 20:55 by Howard Bashman



U.S. Supreme Court gossip from The Washingtonian: This morning, I mentioned an article from today's edition of The Salt Lake Tribune reporting that "Sen. Orrin Hatch is denying a piece in the Washington, D.C., publication The Washingtonian, that says he is planning to use his powerful position as Senate Judiciary Committee chairman to manipulate a seat on the U.S. Supreme Court for himself."

The Washingtonian gossip item is itself available online, and it states:
Will Hatch Seek Opening for Himself on Supreme Court?

When President George W. Bush sends his first Supreme Court nomination to the Senate, Judiciary Committee chair Orrin Hatch is expected to shepherd it through.

But, as they say, not so fast.

Hatch has been spreading the word, through his old friend Attorney General John Ashcroft and others, that perhaps it's time his name should be sent to the Senate.

Hatch has surfaced in the past as a potential Supreme Court nominee. If anything works against him now, it will be his age--68. That reality seems to have sent the hale and hearty Hatch into a now-or-never mentality.

His renewed interest in the court has confounded judge pickers at the White House. They worry that if they choose someone else, the powerful chairman might not be helpful.

The most likely nominees include Virginia federal appeals-court judges J. Harvie Wilkinson and Michael Luttig; Solicitor General Theodore Olson; former Whitewater prosecutor Kenneth Starr; and White House counsel Alberto Gonzalez.

If Chief Justice William Rehnquist is the first to retire, who will move up to his spot? It now looks like Clarence Thomas, and not Antonin Scalia, would replace Rehnquist. The juxtaposition of Thomas's breaking his usual silence to deliver an impassioned lecture against cross-burning and Senator Trent Lott's remarks on the virtues of the 1948 segregationist Dixiecrats was not lost on President Bush. He now believes that elevating Thomas would be the most dramatic way to return his party to being the party of Lincoln and not the party of Lott.
You can access the above item at this link; where it appears in the left-hand column about halfway down the page.
Posted at 20:18 by Howard Bashman



Feisty and yet excellent: I finally had a chance to read at a more leisurely pace during my train ride home this evening Ninth Circuit Judge Alex Kozinski's dissent today from the order certifying a question in the sex.com domain name dispute to the Supreme Court of California, and I must add the adjectives excellent and compelling to my earlier characterizations of his dissent as feisty and vociferous. Judge Kozinski is a fine writer, and I found his dissent to be most persuasive.

As for Judge Kozinski's reference to Al Gore, in footnote 18 of the dissent, I didn't find that nearly as out of place as Judge Kozinski's unnecessary veiled reference to Monica Lewinsky in the opinion he wrote reinstating claims brought by Gennifer Flowers against Hillary Rodham Clinton (about which more details are available here). Plus, the reference to Gore followed a reference to "the ghost of Jonathan Postel"; Postel, of course, actually invented the Internet, whereas Gore, um, did not.

As reader moments ago emailed to note:
As a yellow-dog Democrat/state appellate law clerk, I think the readers who were taken aback by Judge Kozinski's "Nor Al Gore, for that matter" footnote are confusing judicial impartiality with priestly sanctity. Once "the inventor of the Internet" was mentioned, an allusion to the factoid about Gore was too good to miss. I mean, sheesh, the guy's a private citizen now---if he's not fair game, who is? And who says the spirit of gravity has to leech every bit of potentially controversial levity from appellate opinions? "To think" and to take a matter "seriously" are not synonyms, as Nietzsche pointed out.
Well said.
Posted at 19:46 by Howard Bashman



Dahlia Lithwich looks at the bizarre world of "second-parent" adoption laws: You can access her essay, just posted online at Slate seconds ago, at this link.
Posted at 17:32 by Howard Bashman



A second interviewee has volunteered: A second federal appellate judge has now volunteered to take part in this blog's brand new 20 questions feature -- more details available here -- not a bad response rate for a Friday afternoon in early January. This second participant writes:
Please add me to you list of volunteer judges for 20 questions. I was delighted to learn of your efforts a few months ago and I find your blog "must reading" for the informed appellate judge and judicial staff. Congratulations and keep up the good work (but, at the same time, please look after your health!).
Thanks so much for those very kind words.
Posted at 17:20 by Howard Bashman



U.S. Supreme Court tosses out stay in Pavlovich DVD decryption case: Justice Sandra Day O'Connor has vacated the stay she issued last week. The Associated Press provides this report.
Posted at 16:55 by Howard Bashman



Thurgood Marshall postage stamp issues on Tuesday, January 7, 2003: In case you forgot, here's a reminder from the U.S. Postal Service. Those in Washington, DC on the morning of January 7, 2003 can attend the first day of issue ceremony for the stamp at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle NE. The stamp will go on sale nationwide on Wednesday, January 8th.
Posted at 16:52 by Howard Bashman



All it takes is one feisty Judge Kozinski dissent to start the email flowing: A feisty dissent written by Ninth Circuit Judge Alex Kozinski in a case involving the ownership rights to sex.com -- what more could anyone ask for? My earlier post about this ruling has already generated a slew of emails from readers, many of them former or current federal appellate law clerks. A recent former Ninth Circuit law clerk for a judge other than Kozinski writes:
First: Your intuition is correct: the California rules of court require the presiding judge to sign the order.

Second: Judge Kozinski's dissent says basically that the court shouldn't waste the California court's time for mundane issues like this, and that they should save it for novel issues of compelling importance, etc., and refers to the Arizonans for Official English case, which dealt with the interpretation of a state statute passed by referendum and never authoritatively construed by the state courts.

Sometimes even that isn't enough. You posted back in August about a 9th Circuit certification order posing two complicated questions regarding Proposition 209, whose subject matter certainly meets the basic test for certification. (Although Eugene Volokh promptly answered the questions without difficulty.) Interestingly, the California Supreme Court declined certification quite promptly, in November.

Maybe they should certify this one to Professor Volokh, too.
A reader who is currently clerking for a judge on the U.S. Court of Appeals for the Fifth Circuit writes:
Footnote 18's swipe at Al Gore is as funny as the "(no relation)" swipe at Clinton, but both are extraordinarily inappropriate.
While I'm on that topic, another reader emailed to say:
Incidentally, if Judge Kozinski has agreed to participate (or agrees to do so in the future) [in this blog's brand new 20 question feature], you should ask him why he thinks it's appropriate for a federal appellate judge to take a cheap shot at a political figure (particularly a prominent member of the party with which the judge is not identified) in a judicial opinion (as he did in footnote 18 of his dissent in Kremen v. Cohen).
A reader who currently is clerking for a judge on the U.S. Court of Appeals for the First Circuit writes:
You're right, Kozinski's dissent is rather feisty. You should have also pointed out the (gratuitous?) hypothetical in footnote 2 involving Judge Reinhardt -- a judge who wasn't even on the panel!
An appellate lawyer based in California claims to have a better mastery of the California state appellate rules than does Judge Kozinski:
Because of a rule change effective Jan. 1, 2003, it was unnecessary for Kozinski to sign the certification in the domain name case.

The opinion states that the certification was pursuant to Rule 29.5(a) of the California Rules of Court. That rule is now defunct. Substantial revisions to the Rules of Court were effective January 1, 2003. Certification is now governed by new rule 29.8. Former Rule 29.5(d) required that "The judge or justice presiding at the certification hearing (if any) --- or the presiding judge or justice of the court or panel certifying the question --- shall sign the request for an answer to the certified question." As explained in the Advisory Committee Comment to the new rules, "Revised rule 29.8(d) deletes these provisions because they are intrusive and unnecessary ...." Here's a link to the amendments to the California Rules of Court.
A student at Harvard Law School emails to note:
I learn at least as much about the law from your blog and the opinions you point readers to as I do from my second-year classes. Since you're generally such a master of appellate-law minutiae, I just wanted to point out footnote 16 in Kozinski's dissent in Kremen v. Cohen, which explains why Judge Kozinski's signature is on the order:
California's rule, moreover, requires that the certification order be signed by the presiding judge, making no allowance for a situation, like ours, where the presiding judge is in dissent. Cal. Rules of Court 29.5(d). This has led to the odd situation where I find myself dissenting from an order that bears my signature. Cf. Crocker Nat'l Bank v. Clark Equip. Credit Corp., 724 F.2d 696, 700 n.3 (8th Cir. 1984) (Lay, C.J.) ("As author of this opinion, I dissent . . . ."). The drafters of California's certification rule obviously did not anticipate that the presiding judge would dissent, which means they contemplated cases would only be certified when all panel members agree.
So "How Appealing" is more entertaining than second-year classes at Harvard Law, not to mention that this Web log is tuition-free!

Thanks as always to everyone who sent in emails -- quite unsolicited, I might add -- about today's very interesting Ninth Circuit certification order.
Posted at 16:40 by Howard Bashman



At FindLaw, columnist John Dean tries to read between the lines of the Chief Justice's annual report on the federal judiciary: You can access Dean's essay here and the annual report here.
Posted at 16:19 by Howard Bashman



Federal prosecutors obtain rehearing en banc from Eighth Circuit in case against former Navy seaman charged with killing shipmate during Vietnam War: The Associated Press offers this report. You can access the Eighth Circuit's original, divided three-judge panel ruling that affirmed the suppression of the defendant's confession at this link.
Posted at 16:09 by Howard Bashman



Good news! Fewer than two hours after I mentioned here that "How Appealing" was contemplating the launch of a new feature, a federal appellate judge has emailed to express interest in participating in "20 questions for the appellate judge." So, this is really going to happen, and I anticipate that the first installment of this new feature will appear at this site in early February. Other federal and state appellate judges who are interested in participating can still communicate their interest to me via email, because I am looking to make this a regular monthly feature of the Web log.

Meanwhile, many non-judge readers have been emailing to express their excitement about this new feature, and given whom the first interviewee is going to be, the excitement is well-deserved. This email, from a student at Yale Law School, stands out:
Your proposal to interview appellate judges and post a "transcript" on How Appealing may just be the greatest idea for a blog feature ever -- at least in the eyes of this pathetically tunnel-visioned 3L and soon-to-be Ninth Circuit clerk ([judge's name deleted]). So please: Bring it on!

More importantly, I'd just like to take a moment to thank you for your dedication to the blogosphere. I sometimes wonder if I'll be able to handle the pressures of big firm practice (I'll be at [law firm's name deleted] working with [private practice appellate superstar's name deleted] after my clerkship) -- but whenever I need some reassurance, I simply remind myself: Bashman manages to do everything he does for How Appealing and still finds the time to run his practice successfully and raise a child. It can be done, even if it's not easy.

And as for the substance of your blog, allow me to say this. For years now, I have had my morning cup of coffee and followed the same basic browsing routine. My links are lined up left to right in Internet Explorer: New York Times (National then Editorial pages), Washington Post (National then Editorial Pages), Wall Street Journal, ESPN, Harvard Crimson (harkening back to my college days), Yale Daily News, Slate. Six months ago (or so), I added a folder called "Blogs," and in it created links to How Appealing, InstaPundit, Volokh, and then SCOTUSBlog. Within a month and a half I was screwed: I couldn't even scroll down the NYT National page before I would realize that I had somehow uncontrollably clicked myself over to How Appealing. And now I open your page before I do anything else in the morning.

Bashman: More addictive than coffee!

Thanks so much for your great work. And best wishes for the happiest and healthiest New Year!
Thank you for those very kind words!
Posted at 14:48 by Howard Bashman



Possession of real -- not virtual -- child pornography remains a crime, Seventh Circuit rules: In April 2002, the U.S. Supreme Court struck down Congress's effort to make it a crime to possess "virtual child pornography," defined as images "that appear to depict minors but were produced without using any real children." You can access the Supreme Court's ruling in Ashcroft v. Free Speech Coalition at this link.

Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit rejected a criminal defendant's argument that the Supreme Court's decision in Free Speech Coalition declared unconstitutional the entire federal law criminalizing the possession of child pornography. Accordingly, the Seventh Circuit ruled, because the defendant had pleaded guilty to possessing actual -- not virtual -- child pornography, his conviction stands. You can access the Seventh Circuit's opinion at this link.
Posted at 14:13 by Howard Bashman



Ninth Circuit panel certifies sex.com domain name ownership dispute to Supreme Court of California, over Judge Kozinski's vociferous dissent: In a very fascinating decision, a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today has certified to the Supreme Court of California the question whether an Internet domain name is within the scope of property subject to the tort of conversion. Circuit Judge Alex Kozinski issued a feisty dissent, which deserves attention in its own right. Perhaps due to Ninth Circuit protocol, the order of certification has been drafted for Judge Kozinski's signature, probably because he is the senior active judge on the panel. Thus, he in effect is dissenting from his own order of certification. You can access the entire decision at this link.
Posted at 13:35 by Howard Bashman



"How Appealing" contemplates the launch of a new feature: I am considering whether to launch a new feature here entitled "20 questions for the appellate judge." The results of the endeavor would be published on this Web log once a month, beginning in February 2003.

Each month one federal or state appellate court judge would be interviewed, chosen from among those who have volunteered to take part. I would send twenty written questions -- specially prepared with the particular interviewee in mind -- to the upcoming month's interviewee, and would provide two weeks for the judge to return his or her answers. Then, the questions and answers would appear here, verbatim, with the questions in italics and the answers in regular text.

My goal will be to ask questions that I believe would be of interest to this blog's readers about the judge, the task of appellate judging, the court on which the judge serves, and the cities in which the judge performs his or her work. Given that I often host question and answer sessions with federal and state appellate judges, I have a good sense for the subjects that are off limits and the subjects likely to be of interest to the judges and to this blog's readers.

This blog has an amazing readership consisting of members of the federal and state executive, legislative, and judicial branches, legal and general interest journalists, law professors and law students, other academics, appellate lawyers, other lawyers, and members of the general public. Through this new feature, the public's understanding of appellate courts could be greatly enlarged. Simultaneously, the appellate judges who participate will become better known to a wider, yet very sophisticated, audience.

Let me know what you think about this idea, and if you are an appellate judge who would like to be interviewed for this feature, please email me from your court email address, and I will add you to the list of interested appellate judges. If you are a law clerk to an appellate judge who might be interested in taking part, please let your judge know of this new feature. The first judge to respond favorably will have his or her interview appear at this Web log in February 2003.
Posted at 12:35 by Howard Bashman



Divided Sixth Circuit panel affirms dismissal of sex discrimination claim filed by substitute teacher denied rehiring because he was "too macho": Today a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal of a sex discrimination claim filed by a substitute teacher who alleged that he was denied further teaching opportunities because, in the school principal's view, he was "too macho."

According to the majority opinion's recitation of the facts:
In 1996, Lautermilch began working as a substitute teacher for the Schools. Like other substitute teachers, Lautermilch did not sign a contract for employment with the Schools.

In 1998, Principal Kathleen Crates and Assistant Principal Michael Kuri decided that Lautermilch would not be called again as a substitute teacher. They had several concerns regarding Lautermilch's behavior as a substitute teacher, including acting inappropriately with young people, tutoring a female student at his home, telling inappropriate jokes in the classroom, and commenting on the size of a female teacher's breasts. In addition, a student had reported Lautermilch as saying to her "Lips who [sic] touch alcohol may not touch mine, but it does not rule out any other part of my body."

Lautermilch states that he did tutor a female student in his home, and that he had made the "lips who touch alcohol" comment without "that vulgar addition to the end of it." Lautermilch states that at a November 1998 meeting, Principal Crates told him that he was "too macho" and that Principal Crates "spit the word macho out as if it was distasteful." Since then, the Schools have not called Lautermilch to be a substitute teacher.

In 2000, Lautermilch sued the Schools in the Northern District of Ohio, alleging sex discrimination, due process violation, First Amendment violation, and various state law claims. The district court granted the Schools' motion for summary judgment on all claims.
The majority affirmed the trial court's dismissal of all claims, from which Circuit Judge Karen Nelson Moore dissented in part, explaining:
I dissent with respect to the majority's disposition of Lautermilch's equal protection claim because Principal Kathleen Crates's comment that Lautermilch was "too macho," made at the time she informed him of the decision to deny him future opportunities as a substitute teacher, constitutes direct evidence of sex discrimination sufficient to defeat the Schools' motion for summary judgment. The majority improperly upholds the district court's grant of summary judgment, concluding that any reasonable person would determine that Principal Crates's remark was merely "critical of Lautermilch's behavior, not his sex or gender." In rejecting Lautermilch's equal protection claim under § 1983, the majority holds that one "offhand comment" does not "require[] the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." The majority ignores the key facts that the "too macho" comment was made by the decision-maker at the termination hearing.
You can access both the majority and dissenting opinions at this link.
Posted at 10:34 by Howard Bashman



Elsewhere in Friday's newspapers: Today's edition of The Los Angeles Times contains an op-ed by former Stanford Law School Dean Paul Brest entitled "Diversity Gives Depth to the Law." You can access here an article entitled "Death Penalty Upheld Despite Witnesses' Lies; The state high court rules that three who falsified their testimony didn't affect the verdict," which reports on a ruling issued yesterday by the California Supreme Court. Federal district judges in Los Angeles may place a four-day limit on trials in civil cases in an effort to deal with a large backlog of pending matters, this article reports. You can access here an article entitled "Many Refugee Kids Face Tough Times in INS Detention." You can access here an article entitled "Freed Prisoner Can Be Retried; Appeals court backs prosecutors in a Santa Barbara slaying. A judge had earlier ruled that the former Oxnard man was wrongly convicted." Finally, here's an article entitled "Davis Urged to Act on Coastal Panel; Sen. John Burton asks governor to call a special session so revisions can become law in 90 days."

The Boston Globe reports here on a federal judge's order yesterday denying shoe bomber Richard Reid's request for a radio.

The Salt Lake Tribune notes some speculation contained in the new issue of The Washingtonian magazine:
Sen. Orrin Hatch is denying a piece in the Washington, D.C., publication The Washingtonian, that says he is planning to use his powerful position as Senate Judiciary Committee chairman to manipulate a seat on the U.S. Supreme Court for himself.

The Washingtonian reported this week that Hatch has spread the word through his friend, Attorney General John Ashcroft, that he wants to be considered for the next opening on the bench.

The publication also speculated that because of Trent Lott's miscarriage of the mouth at Strom Thurmond's birthday party recently, Clarence Thomas, the conservative black jurist who recently broke his traditional silence on the bench to rail against cross burning, will be named by the Bush administration as chief justice when William Rehnquist hangs up his gavel.
You can access the Tribune article here.
Posted at 07:09 by Howard Bashman



In Friday's newspapers: Reporter Adam Clymer of The New York Times has an article entitled "Government Openness at Issue as Bush Holds Onto Records."

The Washington Post contains an article reporting on a recent Seventh Circuit decision granting a stay of removal against the Immigration and Naturalization Service so that a three-year-old U.S. citizen is not placed at risk of having to undergo female genital mutilation in Nigeria. I first reported on this ruling one week ago today, on the day it issued, in a post you can access here. The Post also contains one front page article entitled "Maryland State Police Reach Deal On Profiling; Agreement Targets Race-Based Searches" and another front page article entitled "N.J. Secrecy Rule Keeps Arab American In Jail and in the Dark."
Posted at 00:15 by Howard Bashman



Thursday, January 02, 2003
"Dubious Awards: The 2002 O.J.s": law.com reprints here JD Jungle's "first annual honors for outrageousness and stupidity in the law."
Posted at 23:47 by Howard Bashman



Congratulating some other law bloggers: Congratulations to the author of "TalkLeft" -- which I can see perfectly now that I am finally home after a very long day at work -- for being named best single issue blog in a contest to reward liberal blogging excellence. Congratulations also to Sam Heldman, whose blog was a runner-up in that category.

What does one do for an encore after being featured at the age of thirty-two on law.com's list of forty-five lawyers under the age of forty-five? Tom Goldstein of SCOTUSblog will have thirteen years to contemplate the answer to that difficult question now that he has made this year's list. Congratulations, Tom!
Posted at 23:24 by Howard Bashman



Picture this: The photo editor of the ABA Journal, which is a wonderful looking, glossy magazine published by the American Bar Association, contacted me today to arrange for a photographer to visit to take some pictures of me. You see, the ABA Journal is on the verge of publishing an in-depth article about law blogs, and I had the pleasure of taking part in a lengthy telephone interview for the article a while back. The Legal Intelligencer publishes my photo in its print edition each month accompanying the text of my monthly appellate column, and I once even linked on this blog to a photo of me taken with Third Circuit Judge Samuel A. Alito, Jr. when he was the guest at one of the luncheon meetings of the Philadelphia Bar Association's Appellate Courts Committee, which I co-chair. But, nevertheless, most of you have no idea what I look like, or whether I resemble the archetypal thirty-eight-year-old appellate lawyer who happens to lead a big law firm's appellate practice group. Well, if you're a member of the ABA, you may get a chance to see me soon in an upcoming edition of the ABA Journal. In the meantime, you can read this ABA Journal article about a proposed federal appellate court rule change currently under consideration that would allow the citation of non-precedential federal appellate decisions. This article neither quotes me nor contains a photo of me, so it can't be all bad.
Posted at 23:08 by Howard Bashman



Another sign that the holidays are over: "How Appealing" has once again experienced over 5,000 page hits in one day, for the first time since the week that preceded Christmas.
Posted at 22:56 by Howard Bashman



Tenth Circuit panel divides three ways in deciding whether to apply "three strikes" provision of Prison Litigation Reform Act of 1995: Today a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit ruled 2-1, in a decision you can access here, that a prisoner could not pursue his appeal of the dismissal of his federal civil rights action without paying in full the applicable filing fee because the prisoner had three earlier civil actions dismissed as frivolous, malicious, or for failure to state a claim. Remarkably, however, none of the three judges agreed on how the Tenth Circuit's existing "three strikes" case law applied to the circumstances at issue in the matter resolved today. This case would thus seem to present a compelling candidate for rehearing en banc.
Posted at 21:33 by Howard Bashman



"Battling against big food": A reader sends along a link to this article from the December 19, 2002 edition of The Economist. The reader's email states:
Huge fan, obviously, & I wanted to make sure you saw this (probably have) in The Economist, sort of in line with this week's lead Onion piece.

Also, I appreciate your posting on the Projo article regarding the death of Justice Victoria Lederberg. I was one of her current clerks, and she was truly a great appellate jurist. She took her position very seriously and prided herself on mentoring her clerks and working with them to turn out thoughtful & (hopefully) just opinions.
You can access my recent post about Justice Lederberg's untimely passing at this link.
Posted at 21:12 by Howard Bashman



"The Cancer of Race": Ward Connerly has this guest commentary today at National Review Online.
Posted at 16:00 by Howard Bashman



"Condits walk a libel tightrope": The Modesto Bee offers this report.
Posted at 15:59 by Howard Bashman



Access online the 2002 Year-End Report on the Federal Judiciary: Available here via the U.S. Supreme Court's Web site.
Posted at 14:30 by Howard Bashman



"European Copyrights Expiring on Recordings From 1950's": The New York Times has within the hour posted online an article bearing this title. The article contains quotations from Law Professor Lawrence Lessig, whose blog you can access here.
Posted at 14:26 by Howard Bashman



Ninth Circuit reinstates Rastafarian inmate's challenge to California Department of Corrections' hair length regulations: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reinstated a Rastafarian prison inmate's challenge to the California Department of Corrections' policy that a male inmate's hair may not be longer than three inches. The appellate court's opinion dealt mainly with procedural issues.

First, the Ninth Circuit ruled that the trial court did not give the prisoner an adequate opportunity to challenge findings formulated when dismissing an earlier, similar lawsuit brought by a different inmate. Second, the appellate court ruled that the trial court should have given the prisoner a chance to substitute a claim under the newly enacted Religious Land Use and Institutionalized Persons Act for his claim under the Religious Freedom Restoration Act, which the U.S. Supreme Court had declared unconstitutional as applied to the States. Finally, the Ninth Circuit joined with the vast majority of other federal appellate courts in holding that the exhaustion of available administrative remedies required under the Prison Litigation Reform Act constitutes an affirmative defense to liability that the defendant (here, the California prison system) must raise and prove. Because it was unclear whether the trial court understood that the prisoner's failure to exhaust was subject to waiver by the prison system, the Ninth Circuit reversed that ground for dismissal as well.

In what I hope is just a temporary oversight, the Ninth Circuit today has made its published decisions available only in Word Perfect format, rather than in the Adobe Acrobat PDF format that the Ninth Circuit has previously used. You can access today's ruling in Wyatt v. Terhune via this link. (Update: Happily, the Ninth Circuit has replaced the Word Perfect version of the opinion with the PDF version, which you can access directly here.)
Posted at 14:06 by Howard Bashman



Third Circuit year in review now available online: You can now access the Third Circuit year in review article written by Shannon P. Duffy, who covers the federal courts for The Legal Intelligencer, at this link.
Posted at 13:55 by Howard Bashman



Start the new year with some commentary from FindLaw: Law Professor Marci Hamilton has an excellent essay explaining that federalism isn't of necessity anti-civil-rights. And Law Professor Sherry F. Colb discusses here whether police officers violate the Fifth Amendment when they coerce a confession from a suspect.
Posted at 12:37 by Howard Bashman



One law blog recommends another: Denise Howell of "Bag and Baggage" fame updates the latest developments in the Pavlovich case, which she has been keeping a close eye on for some time now.

A contributor to the Harvard Law School Federalist Society blog "Ex Parte" writes:
Happy New Year everybody! As you emerge from the darkest depths of debauchery, I bring you good tidings: Bush and Bashman are on the same page. Both the President and the appellate blog guru have come out for an increase in federal judicial salaries. Given the draconian restrictions on outside income with which federal judges must deal, it is only fair to reward judges with compensation that approaches the lower boundaries of adequacy.
Orin Kerr finally joins me in the realization that when it comes to accessing newly issued opinions, the Eleventh Circuit's Web site is completely useless. But do not despair, because the Eleventh Circuit thanks you for your patience while it investigates how to join the information age, as every other federal appellate court has somehow already done without the need for an extended period of deep thought.

And, just when I've finally come to accept that my law firm uses Internet filtering software that makes it impossible for me to receive any emails that contain foul language, my firm's version of Websense decides to block my access to the blog TalkLeft. Hmm, what's up with that!
Posted at 12:06 by Howard Bashman



"Judge Denies Shoe Bomber's Radio Request": The Associated Press reports here that "Richard C. Reid, the man who pleaded guilty to trying to blow up an airplane with a shoe bomb, cannot have a radio in his prison cell, a federal judge ruled Thursday." At this rate, I'm sure that soon Reid will be forced to go without the television in his prison cell, too.
Posted at 11:59 by Howard Bashman



Sixth Circuit affirms criminal sentence of former chief administrative officer of the American Cancer Society of Ohio: In an opinion issued today, a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit affirmed the criminal sentence of the former chief administrative officer of the American Cancer Society of Ohio, who had pleaded guilty to seeking to divert nearly $7 million in charitable donations to his personal use. You can access prior press coverage of this matter here and here.
Posted at 11:19 by Howard Bashman



Other news from here and there: The St. Petersburg Times reports here that yesterday "U.S. District Judge Elizabeth Kovachevich ended her seven-year term as chief judge for the Middle District of Florida." The article contains an interesting question and answer session with "Judge K."

The Orange County Register contains an editorial that reports on some of the big cases pending on the U.S. Supreme Court's docket. Unfortunately, the editorial is plagued by several careless factual errors.

"2002 was full of waiting and contemplating," according to this article from The Kansas City Star.

And columnist Debby Morse of The San Francisco Examiner has an op-ed entitled "The year in preview" that I think was an attempt at humor.
Posted at 07:24 by Howard Bashman



Sixth Circuit nominees Cook and Sutton due to receive Senate Judiciary Committee hearings on January 14, 2003: According to this article from The Blade of Toledo, Ohio, Ohio Supreme Court Justice Deborah L. Cook and Columbus, Ohio attorney Jeffrey S. Sutton could both join the U.S. Court of Appeals for the Sixth Circuit by February 2003.
Posted at 07:13 by Howard Bashman



In Thursday's newspapers: Today's edition of The New York Times reports here that "Foes of Abortion Push for Major Bills in Congress." And you can access here an article entitled "Execution Opponent Joins Sniper Case."

The death penalty also makes news in The Los Angeles Times, where David G. Savage reports that "Executions Becoming Province of the South, Report Finds." A recent op-ed that compared Justice Clarence Thomas to Justice Thurgood Marshall has produced some angry letters to the editor. Law Professor Jonathan Turley has an op-ed today entitled "Liberty Ebbs by Degrees: Bush is twisting the Constitution into an obstacle to defense, and no one is speaking up." And, in Huntington Beach, California, 2002 was the year of the lawyers.

The Washington Post reports here that 2003 brings new federal pay tables, unless, that is, you are a federal judge.

Finally for now, USA Today contains an op-ed arguing that quotas should not be used to enforce the mandates of Title IX.
Posted at 06:51 by Howard Bashman



Happy 01/02/03! The Boston Globe takes note here.
Posted at 06:49 by Howard Bashman



Wednesday, January 01, 2003
Some news from the Ninth Circuit: A press release dated December 30, 2002 available online at the Ninth Circuit's Web site advises:
Acting upon the recommendation of its Advisory Rules Committee, the United States Court of Appeals for the Ninth Circuit has agreed to extend Circuit Rule 36-3(b)(iii) for an additional 30-months, until July 1, 2005. The circuit rule, which was first adopted on July 1, 2000, for an initial 30-month period, permits citation of unpublished dispositions in requests for publication and in petitions for panel rehearing or rehearing en banc in order to demonstrate the existence of a conflict among opinions, disposition or orders.
Don't let this press release lull you into a false sense of security when it comes to citing unpublished Ninth Circuit rulings back to the court that issued them. If you cite an unpublished opinion outside of the extraordinarily limited circumstances described in the rule referenced in the press release, the Ninth Circuit will sanction you, as Circuit Judge Alex Kozinski explains here and here.
Posted at 23:08 by Howard Bashman



Available online at law.com: Tony Mauro remains quite worth reading in 2003, reporting here ("Rehnquist: More Money for Judges") on Chief Justice William H. Rehnquist's recent trip to the White House, "with a cane in one hand (literally), and a hat in the other (figuratively)."

Here you can access an article about the Supreme Court of California that begins, "In a year sprinkled with high-profile rulings on commercial speech, medical marijuana and tobacco, the big story of 2002 for the California Supreme Court just might be the seven justices' ideological love fest." A related chart that Tom Goldstein does not appear to have been responsible for is accessible here. Potential U.S. Supreme Court nominee Janice Rogers Brown wins the award for most prolific justice. (A note to easily confused readers -- "prolific" has nothing to do with being "pro-life.")

In other news from California, The Recorder gives Senior Ninth Circuit Judge Alfred T. Goodwin a year-end up-arrow because "[n]early every elected official in the country denounced the combative Nixon appointee for his Pledge of Allegiance ruling, so he's doing something right."
Posted at 22:58 by Howard Bashman



Even more readers write to share views about non-precedential federal appellate decisions: The January 2003 installment of my monthly appellate column will address new developments in the continuing controversy over non-precedential federal appellate rulings. The column will be published in The Legal Intelligencer on Monday, January 13, 2003, and you can complete a free and easy sign-up at this link to receive the column in PDF format via email that very morning.

And now, onto the mailbag. Gary O'Connor of the Statutory Construction Zone blog writes:
What this question ultimately comes down to, as the judge I clerked for used to say, is a case where "In the battle between theory and the real world, the real world wins." Banishing unpublished opinions from the realm (would it be a writ of exeat regno?) may be theoretically appealing, but it is impractical.

(P.S. The writ of ne exeat regno was one of the high prerogative writs at common law--barring a subject from leaving the realm--on the theory that there would be one less soldier for the king's army).
Another reader opines:
You are correct on "non-precedential" decisions. I was a law clerk in 1966-67 for a judge on the Fifth Circuit. That was before screening, when every case got oral argument up to 30 minutes per side at the option of counsel. About half of the caseload was decided by short per curiam opinions. These were legally indistinguishable from signed opinions, but they were written to be of no interest to anyone outside the case. There were no rules about whether they could be cited or not, but there just was not much that was citable about them. If such an opinion decided a point that turned out to be useful in a later case, it was there to be cited. I bet that happened very rarely, though -- someone wanting to be published on this issue could make a study of how often such opinions were cited in later decisions that might be quite valuable. Experienced judges could produce them quickly and with comparatively little effort (such opinions tended to appear within a few weeks after argument), and they let counsel and the parties know the case-specific reasons why the appeal was decided the way it was. The basis for the decision to issue such a per curiam opinion was the panel's conclusion that the case could be decided without making the kind of pronunciamentos that were likely to be applied in later cases. I don't see why such a practice is not the complete answer to the problem that is said to exist today.
This next email points out a troublesome aspect of the D.C. Circuit's year-old rule changes that banished non-precedential rulings from that court's arsenal (a change that I very much endorse), but then relegated "unpublished" U.S. District Court decisions to an especially odd fate:
Having not been aware until recently of the change in the D.C. Circuit's rule regarding citation of unpublished opinions, I looked up that circuit's rule today. Interestingly, in addition to providing guidance on when "unpublished" D.C. Circuit opinions may be cited, D.C. Cir. Rule 28(c)(2) provides that except in related cases (e.g., res judicata or law-of-the-case situations), "unpublished dispositions of district courts may not be cited."

I'm not aware of any other court whose rules prohibit citation of unpublished district court opinions -- not as "precedential" authority, which of course they would not be in an appeals court or even in the same or another district court, but for their persuasive effect, if any. Nor have I seen any comment on this feature of the D.C. Circuit rule in any of the vast commentary on the "unpublished opinions" controversy. Have you?

What do you suppose would constitute an "unpublished" district court decision? Anything not reported in F. Supp. 2d? Does a CCH or BNA service count? Lexis/Westlaw? District Court publication policies vary from district to district and judge to judge and can be completely haphazard.
If anyone is aware of any legitimate reason why a federal appellate court would adopt a rule that bans the citation of "unpublished" federal district court decisions, I too would love to hear it. (By the way, the reader who raised this question happened to overlook every procedure geek's favorite collection of published federal district court decisions, the Federal Rules Decisions or F.R.D. Here's a book review of the F.R.D. publication that you may enjoy.)
Posted at 22:25 by Howard Bashman



"One thing" may be happiness, or the movies, or the law: Received this email from a reader today:
You seem to be somewhat of a film buff, so I'd like to recommend the film "13 Conversations About One Thing" for a Netflix rental. It remains the best film I've seen from 2002 (I was majorly disappointed with Gangs of NY and About Schmidt, but haven't seen Adaptation yet), but it's not widely known, and doesn't seem to be making any year-end best-of lists. I also recommend Mike D'Angelo's film reviews, which are among the best available (http://www.panix.com/~dangelo/).

Btw, one of the most interesting things to me in "Minority Report," and I think you will appreciate this, was the unstated constitutional-gutting that had apparently occurred. "Minority Report" had people being arrested for crimes they did not commit, so due process had been, shall we say, reinterpreted, and the film also included suspicionless searches by spiders, which means that the Fourth Amendment had to undergo some changes, too (perhaps we're down to the more "manageable" six amendments in 2054). However, when Tom Cruise's character was shown making an arrest, incredibly, even paradoxically, he still read the suspect his Miranda warnings. Imagine that. Dickerson really did settle things, apparently for all time. (Of course, I'm left trying to understand the value of Miranda without all the other rights that the film assumes no longer exist...)

Happy new year.
I already was among the first to receive "13 Conversations About One Thing" from Netflix, and I agree with you (as do Ebert and A.O. Scott) that it was well worth seeing. If you haven't heard, Ebert has ranked it fifth on his ten best list for 2002. Meanwhile, another reader (over on his own blog) hopes that I haven't seen "Freddy Got Fingered." A.O. Scott actually gave the movie something of a positive review -- perhaps the only one that the film received -- and thanks to HBO (where the film currently seems to be in late night rotation) I'm sure to see it one day soon.
Posted at 21:20 by Howard Bashman



Celebrating the arrival of 2003 with some fans of "How Appealing": Steph, over at her blog, describes a conversation from her New Year's Eve celebration last night when she was introduced to another guest who is also a big fan both of this blog and of the inimitable Dahlia Lithwick. See, I may have been gone from the party circuit last night, but at least I wasn't forgotten.
Posted at 16:25 by Howard Bashman



Uh-oh: Call it an "intellectual taste-treat," but The Washington Post's version of "The List" of what's in and out for 2003 declares as "in" both blogs and The Loaf. As "How Appealing" demonstrates on a daily basis, anyone can have a blog, but to enjoy a taste of The Loaf, one is well-advised to follow this recipe endorsed by Slate's own Dahlia Lithwick.
Posted at 12:15 by Howard Bashman



In Wednesday's newspapers: Linda Greenhouse, who covers the U.S. Supreme Court for The New York Times, reports here on Chief Justice William H. Rehnquist's brand new yearly report on the federal judiciary.

An op-ed in today's edition of The Washington Post discusses the 140th anniversary of the Emancipation Proclamation.

The Los Angeles Times contains an article entitled "Court Upholds Terrorism Law Secrecy." The article discusses a ruling that the U.S. Court of Appeals for the Seventh Circuit issued yesterday, and you can access my prior coverage of that ruling here. Today's edition of The LATimes also contains an editorial entitled "Shore Up the Coastal Panel."

Tomorrow's edition of The Christian Science Monitor is already available online. It contains an op-ed entitled "Why we still need affirmative action." Readers who possess toy-like copies of the U.S. Constitution may be saddened to read an article entitled "New York's latest crime-buster: muzzling toy guns." Finally, do natives of Pittsburgh, Pennsylvania have a strange local dialect? Read this article and decide for yourself.
Posted at 11:57 by Howard Bashman



The Chief Justice's 2002 Year-End Report on the Federal Judiciary: New Year's Day brings the issuance of the Chief Justice's Year-End Report on the Federal Judiciary. Today Chief Justice William H. Rehnquist issued his seventeenth, and perhaps last, such annual report. Charles Lane of The Washington Post has this article on the subject. And sometime soon you will be able to access the Chief Justice's report itself via this link at the U.S. Supreme Court's Web site. Lest anyone forget, "How Appealing" has consistently supported meaningful increases in the salaries paid to federal judges, and 2003 brings no change in that regard. President Bush also joined in the call for increases in the salaries of federal judges in a statement issued yesterday.
Posted at 00:32 by Howard Bashman



Happy New Year! I hope 2003 exceeds by far the best and the brightest expectations of every single one of this blog's readers. And I am truly and deeply touched by all of the kindness, warmth, and enthusiasm for this endeavor that you have shown me in the year that has just concluded.
Posted at 00:04 by Howard Bashman




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CONTENT / v.3

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