How Appealing

Friday, August 22, 2003
Is it that time of year once again? Indeed it is. Just like last year, when I ceased blogging for the last week of August, this year no new updates will appear here until Monday, September 1, 2003. At that time, I'll try to recap any events of significance that occurred while I was away. In the interim, you may happen to find me here, here, here, here, here, here, here, and/or here.

Something to look forward to -- on Tuesday, September 2, 2003, I will be posting online the September 2003 installment of "20 questions for the appellate judge." September's interviewee will be Judge William Curtis Bryson of the U.S. Court of Appeals for the Federal Circuit.
Posted at 23:50 by Howard Bashman



"Judge Suspended for Defying Court on Ten Commandments": Saturday's edition of The New York Times will contain this report.
Posted at 23:46 by Howard Bashman



The Supreme Court of California is ready to rule in DVD trade secret/free speech case: The Supreme Court of California has announced that on Monday, August 25, 2003 it will issue its decision in DVD Copy Control Assoc. v. Bunner. The case presents the question "Does a preliminary injunction under the Uniform Trade Secrets Act (Civ. Code, sec. 3426 et seq.) barring the posting of DVD deencryption software on the Internet violate the First Amendment to the federal Constitution as a prior restraint on protected speech?" The decision will be made available for download here at 1 p.m. eastern, 10 a.m. pacific time on Monday.

This case has already received plenty of media coverage. The Recorder provided an article about the oral argument headlined "California High Court Hears Clash of Speech, Trade Secrets Law." SecurityFocus reported here that "California Supremes Hear DeCSS Case." The Electronic Frontier Foundation issued press releases entitled "California Supreme Court Hears DVD Trade Secret Case; Civil Liberties Groups Seek Internet Publication Protection" and "California Supreme Court to Hear DVD Case."

Finally, you can access here the ruling that the California Supreme Court is reviewing. The decision struck down a preliminary injunction that prohibited the posting of the information. The Court of Appeal reasoned that Bunner's free speech rights took precedence.
Posted at 23:08 by Howard Bashman



"Harvard Radical": Lawrence Summers is the subject of the cover story in this Sunday's edition of The New York Times Magazine.
Posted at 23:04 by Howard Bashman



"Georgia courthouse keeps commandments": Saturday's edition of The Augusta Chronicle will contain this article.
Posted at 23:00 by Howard Bashman



On your way out of town, please be sure to take advantage of the world-renowned bridges: Today's edition of The St. Louis Post-Dispatch reports here that "Lawyers hoping to capitalize on Madison County's reputation as a 'plaintiff's paradise' will be looking closely at a ruling issued Thursday by the Illinois Supreme Court." You can access yesterday's ruling of the Supreme Court of Illinois at this link. Update: A reader emails to note that the Madison County with the famous bridges is in Iowa, not Illinois. One lesson of successful blogging is that you can't let the facts get in the way of a clever remark.
Posted at 22:47 by Howard Bashman



"High court says attorney client privilege not absolute": The Associated Press has this report from North Carolina. And News 14 Carolina reports here that "The State Supreme Court wants a Raleigh lawyer to talk." You can access today's decision of the Supreme Court of North Carolina at this link.
Posted at 22:41 by Howard Bashman



Available online at law.com: Tony Mauro has an article headlined "A Peek Into Justice White's FBI File." Jason Hoppin reports that "Doctors Can't Rat on Patients." Shannon P. Duffy reports that "3rd Circuit Rules District Courts May Consider Torture Claims." In other news, "Secret Energy Settlement Gets California High Court's OK." And an article reports that "Federal Circuit Hands Palm a Setback."
Posted at 22:35 by Howard Bashman



Latest news from Alabama: Saturday's edition of The Washington Post will contain an article headlined "Ala. Judge Relents on Monument; Commission Suspends Chief Justice for Defying Federal Order." The Montgomery Advertiser reports here that "Moore barred from performing duties" and here that "Protesters bring cash to the city."

Finally for now, you can access here the complaint that the Judicial Inquiry Commission of the State of Alabama brought against Chief Justice Roy S. Moore of the Supreme Court of Alabama.
Posted at 22:19 by Howard Bashman



Reuters is reporting: You can access here an article entitled "Ten Commandments Judge Suspended in Alabama" and here an article entitled "Fox Loses Bid to Stop Sale of Franken Book."
Posted at 22:12 by Howard Bashman



"Pipes to Be Named to Think Tank; Controversial Mideast Scholar Will Be Recess Appointment": This article appeared in today's edition of The Washington Post. And today the White House did make that and other recess appointments (see the official announcement here), although no recess appointments were made today to the federal judiciary.
Posted at 22:09 by Howard Bashman



"Lobbying fierce on concealed-weapons veto vote": This article appears in today's issue of The Kansas City Star.
Posted at 19:49 by Howard Bashman



"Judge suspended over Ten Commandments": CNN.com provides this report. And today's edition of The Kansas City Star contains an editorial entitled "Thou shalt not display in court."
Posted at 19:43 by Howard Bashman



You know they're criminals because they have aliases: I must admit that it never ceases to amuse me when the federal government indicts defendants in criminal cases and invariably includes aliases in the caption of the case. So, for example, if an indictment is handed up against one "Joseph Smith," chances are the indictment will also specify "a/k/a 'Joe.'" Today the U.S. Court of Appeals for the Eleventh Circuit issued an opinion in which the judges on the panel may have wished that the defendants had straightforward aliases. Unfortunately, the government had assigned no aliases to these defendants. Today's opinion begins, "Chittakone Chanthasouxat ('Chanthasouxat') and Keopaseuth Xayasane ('Xayasane') (collectively, 'Defendants') appeal their convictions for drug-related offenses." [Of course, a persuasive argument can be made that all three of those parentheticals are unnecessary too, but don't get me started. Update: This post did manage to get acclaimed legal writing expert Eugene Volokh started. You can view his comments here.]
Posted at 19:39 by Howard Bashman



Federal district courts have jurisdiction to consider habeas corpus petitions filed by INS* detainees alleging violation of the Convention Against Torture: So the U.S. Court of Appeals for the Third Circuit has ruled in this very interesting opinion issued today. [*I am aware that on March 1, 2003, the INS became part of the U.S. Department of Homeland Security. However, no suitable acronym has yet arisen to replace INS.]
Posted at 19:27 by Howard Bashman



Department of "no comment": The AP reports here that "Moussaoui Worried on Self-Representation." You can access the two most recent orders of the U.S. District Court for the Eastern District of Virginia in this case here and here.
Posted at 19:06 by Howard Bashman



Alabama Chief Justice Roy S. Moore suspended over ethics complaint: The Associated Press is reporting that "Alabama Chief Justice Roy Moore is suspended pending the outcome of an ethics complaint for defying a federal court order to move a Ten Commandments monument." Update: The AP now offers this more detailed report.
Posted at 18:39 by Howard Bashman



"Alabama Officials Mull Removal of Ten Commandments": Reuters offers this coverage.
Posted at 18:35 by Howard Bashman



"Fox loses over Franken's 'Lies' book": CNN.com provides this report.
Posted at 18:34 by Howard Bashman



"Women's Med Center to stay open; U.S. court judge blocks state rule that required specific backup doctors": The Dayton Daily News published this article on Tuesday. And on Wednesday, that newspaper reported that "Right to Life stages protest at clinic; Judge's ruling allows Kettering center to stay open."
Posted at 17:04 by Howard Bashman



"Roy's Rock: Alabama residents are wreaking a nasty revenge on the woman who took their state's chief justice to court over his religious monument." Newsweek's Eleanor Clift has this "online exclusive" essay today. Reuters reports here that "Christian Conservatives Defend Ten Commandments." And The Associated Press reports here that "Commandments dispute underscores evangelical split on tactics."
Posted at 16:56 by Howard Bashman



"Chefs in stew over foie gras; Some rethink menu after violence over controversial fare": This article appears today in The San Francisco Chronicle. In somewhat related news, The Associated Press reports here that "Fires break out at California car dealership, vehicles vandalized at three other dealerships."
Posted at 16:06 by Howard Bashman



"Any other litigant might be embarrassed, but in litigation the government never blushes." A former law clerk to Eleventh Circuit Judge Ed Carnes had this to say today via email about a concurring opinion from his former boss that I first linked to here yesterday:
Judge Carnes' observation in U.S. v. Brown that "in litigation the government never blushes" is particularly noteworthy coming, as it does, from a jurist who spent his entire career before taking the bench as a prosecutor and appellate counsel for the government. When I clerked for Judge Carnes, he urged me to follow a similar path into public service, and I did. One lesson I learned was that, while the law often allows the government to take uncommon liberties with its position, every time the government chooses that path it burns up a bit more of its credibility with the bench. The long-term result is a frequently skeptical judiciary -- even among judges who once served as counsel for the government.
Very well said.
Posted at 15:52 by Howard Bashman



"Commandments debate spans nation; For now, the ‘shalt not’ side has upper hand": MSNBC's Kari Huus has this report. And from Georgia comes an AP report that "ACLU giving Barrow County 'time' on 10 Commandments."
Posted at 15:24 by Howard Bashman



Will the real Marcus Howard please stand up? This opinion that Seventh Circuit Judge Terence T. Evans issued today illustrates how a defendant's criminal history can affect a sentence of imprisonment imposed in federal court under the Sentencing Guidelines. (This post's heading patterned on lyrics from "The Real Slim Shady" by Eminem.)
Posted at 14:32 by Howard Bashman



"No Charges Seen in Ten Commandments Case": The Associated Press provides this update. Today's edition of The Birmingham Post-Herald reports here that "Chief Justice Moore may face suspension from court; Expected to meet with judicial commission." And The Brainerd (Minn.) Daily Dispatch reports here that "Courthouse has its own monument, but not any controversy" (plus photo here).
Posted at 14:10 by Howard Bashman



No worries: A reader who just began a clerkship for a judge on the U.S. Court of Appeals for the Ninth Circuit emails to suggest that I point out that Ninth Circuit Judge Alex Kozinski is among the federal appellate judges who have not agreed to follow the so-called "Law Clerk Hiring Plan." Accordingly, this post of mine from very early this morning need not cause clerkship applicants excessive aggravation except to the extent that they find themselves without shelter in an electrical storm.
Posted at 13:53 by Howard Bashman



Ninth Circuit en banc panel rules 8-3 that no "dangerous patient" exception exists to federal testimonial privilege for psychotherapist-patient communications: You can access today's ruling by an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit at this link. The majority opinion notes that a circuit split already existed on this issue even before today's ruling.
Posted at 13:30 by Howard Bashman



"State readies removal of Ten Commandments monument": CNN.com provides this update. And WTVM-9 of Columbus, Georgia reports that "Plaintiffs will NOT Seek to Hold Chief Justice Roy Moore in Contempt of Court."
Posted at 13:20 by Howard Bashman



"Guardian Sought for Fetus of a Retarded Floridian": This article appears today in The New York Times. The Miami Herald reports here that "Guardian for fetus a knotty issue for 3 judges; Debate centers on unborn child of retarded woman." And The Orlando Sentinel reports here that "Court hears debate on rights of fetuses."
Posted at 12:09 by Howard Bashman



Choose targeted mail solicitations: Today's edition of The Tallahassee Democrat contains an article that begins: "Democrats and abortion-rights advocates Thursday criticized House Speaker Johnnie Byrd for mailing owners of the state's 'Choose Life' license plates letters promoting a constitutional initiative requiring parental consent for minors' abortions."
Posted at 12:03 by Howard Bashman



"U-M gay studies class leads lawmakers to seek controls; Bill would give state legislators the power to prohibit courses": This article appeared in yesterday's issue of The Ann Arbor News.
Posted at 11:56 by Howard Bashman



"Wrongly convicted Detroiter tiptoes into life of freedom; Lloyd slowly adjusts to new world after 17 years in prison": The Detroit News today provides this report.
Posted at 11:53 by Howard Bashman



"TV case explores the bare facts; Man goes to court over nudity and free speech": This article appears today in The Detroit Free Press.
Posted at 11:51 by Howard Bashman



Sadly, the cert. petition contains no mention of the "oopsy-daisy clown car": On Monday, the Consumers Union of the United States, which publishes Consumer Reports magazine, filed a petition for writ of certiorari in the U.S. Supreme Court seeking review of a recent Ninth Circuit decision that allows Suzuki Motor Corp. to pursue a product disparagement claim based on a very unfavorable series of reviews of the Suzuki Samurai that the magazine had published. You can access the cert. petition at this link. Back in May 2003, a total of eleven Ninth Circuit judges dissented from an order denying rehearing en banc and joined in an opinion dissenting from the denial of rehearing en banc written by Circuit Judge Alex Kozinski. This cert. petition may contain more references to Judge Kozinski than any other cert. petition ever filed, or maybe not. Sadly, however, the cert. petition fails to quote one of my favorite references from the Kozinski dissent to an "oopsy-daisy clown car." You can access my earlier coverage of the Ninth Circuit's order denying rehearing en banc at this link.
Posted at 10:58 by Howard Bashman



Even more Ten Commandments-related coverage: The Associated Press reports here that "Defiant Judge Meets on Ten Commandments." Another AP report is entitled "Finding References to God Easy in America."

The Mobile Register reports here that "Sculptor finds his work at center of controversy" and here that "Supreme Court justice sought son's counsel; Seniority led Gorman Houston Jr. to try to lead justices to consensus." An article in The Birmingham News bears the headline "Locked out, 100 gather on steps of judicial building."

Today's issue of The Boston Globe contains an editorial entitled "Thou shalt not." The Baltimore Sun contains an editorial entitled "Monumental demagoguery." The Wilmington (N.C.) Star-News contains an editorial entitled "Thou shalt obey the law." Columnist Cal Thomas has an essay entitled "Conflicting thoughts on Alabama." And in The Austin American-Statesman, John Kelso has an essay entitled "'Tain't Moses who found these stones."

Finally for now, The AP reports from Oklahoma that "'In God We Trust' Posters Finding Way Into Schools; ACLU: Posters Violate Separation Of Church And State."
Posted at 10:27 by Howard Bashman



"PA Committee Members Resign Over Ten Commandments": WPVI-6, Philadelphia's ABC affiliate, has this report from Altoona, Pennsylvania. It was James Carville who defined Pennsylvania as "Philadelphia and Pittsburgh with Alabama in between."
Posted at 10:16 by Howard Bashman



This morning's Ten Commandments news: The Montgomery Advertiser reports here that "Moore's colleagues vote to move display"; here that "Supporters say freedom's on the line"; and here that "Supporters continue their protests." You can access one photo gallery here and another here. And an editorial is entitled "Justices did what was right."

The Mobile Register reports here that "Monument is shielded, in place" and here that "Commission will review complaint; Filings say Chief Justice Moore violated the Alabama Canons of Judicial Ethics." And an editorial is entitled "Commandments safe, despite Roy Moore."

The Birmingham News reports here that "Justices overrule Moore; monument ordered out." And an editorial is entitled "Taking a stand: Court upholds law in Ten Commandments fight."

The Crimson White reports here that "State justices disagree with Moore's stance; Hundreds rally around monument as chief justice refuses to back down." And an editorial is entitled "Political recognition, a media circus, Ten Commandments and one chief justice."

The Huntsville Times contains an editorial entitled "Back from the brink: Once again, Alabama flirted with disaster."

In news and opinion from elsewhere, The Athens Banner-Herald reports here that "Alabama boils; Barrow quiet." The Globe and Mail contains an item headlined "Behold the armies of the Lord." The Atlanta Journal-Constitution contains an editorial entitled "Constitution rules in Alabama." The St. Petersburg Times contains an editorial entitled "Alabama extremist unfit to judge." The Charlotte Observer contains an editorial entitled "Render unto Caesar: Defiant judge's self-serving monument trivializes religion." The Erie Times-News contains an editorial entitled "Justice Moore's contempt for law." And The Helena Independent Record has an op-ed by Marianne Means entitled "Monument and judge should go."
Posted at 06:25 by Howard Bashman



Volokh to clerk for Kozinski: Who says lightning can't strike twice.
Posted at 00:35 by Howard Bashman



Ten Commandments monument coverage in Friday's newspapers: The New York Times contains an article headlined "Thou Shalt Not, Colleagues Tell Alabama Judge." The Washington Post offers an article headlined "Commandments Statue Removed From View; Ala. Justices Say They Were Following Court Order." The Atlanta Journal-Constitution reports here that "Court nominee draws spotlight in Ala. saga." Finally for now, you can access Wednesday's order of the U.S. Supreme Court at this link.
Posted at 00:16 by Howard Bashman



Thursday, August 21, 2003
In Thursday's newspapers: The Washington Post reports here that "GOP Bill Would Add Anti-Terror Powers." In other news, "Former Militant Is Granted Parole; Upcoming Release Angers Victim's Family, Others." You can access here an article headlined "Busy Thumbs and Crossed Fingers; BlackBerry Users Not Likely to Be Left Empty-Handed." An editorial is entitled "Mr. Ashcroft's Roadshow." And Bob Barr has an op-ed entitled "Leave Marriage To the States."

The Los Angeles Times reports here that "Court Ruling Keeps Recall on Track for Oct. 7 Ballot; A federal judge rejects a request to delay the election over the use of punch-card voting." An article reports that "San Francisco Wins Voting-System Suit; Public-interest groups lose bid to force use of instant-runoff balloting in the Nov. 4 election." In other news, Mrs. Gray Davis now has a blog. An article reports that "Californians May Win Right to Sue Brokerages; Appellate ruling could lead to a precedent allowing investors to bypass arbitration." You can access here an article headlined "N.Y. Parole Board OKs Freedom for 1960s Radical; Kathy Boudin has spent 22 years in prison for her role in a robbery that left three dead." An article reports that "Megan's Law Data Out of Date, State Audit Finds." In local news, "Accused Judge Had a Drinking Problem, Former Lover Testifies; The Lompoc jurist who allegedly pulled a gun on her partner was struggling with work and domestic troubles, her ex-partner says." And an editorial is entitled "Private Justice for a Judge."

The New York Times reports here that "Former Radical Granted Parole in '81 Killings." And in other news, "Penalty in Crown Heights Case Means a Little More Jail Time."

USA Today reports here that "10 Commandments appeal fails Monument ordered out of Ala. building."

The Christian Science Monitor reports here that "Tart humor gets its day in court." And an editorial is entitled "Ashcroft's Whistle-Stops."

The Boston Globe reports here that "Judge rules against foes of wind farm; Says state lacked a right to block the test tower."

The Washington Times reports here that "Cadaver-dog handler charged with rigging evidence searches." An editorial is entitled "Smearing the Patriot Act." And an op-ed by William Murchison is entitled "Prevailing tendencies," and
Posted at 23:35 by Howard Bashman



"High court to decide if Diaz to see documents": The Clarion-Ledger provides this coverage from Mississippi.
Posted at 23:33 by Howard Bashman



The Associated Press is reporting: An article reports that "State Supreme Court expands wrongful death law to cover unborn fetuses," and you can access today's en banc ruling of the Supreme Court of Mississippi at this link.

Elsewhere, an article reports that "High court rules for 3M in breast implant case," and you can access today's ruling of the Supreme Court of Minnesota at this link. David Kravets reports that "California Supreme Court upholds energy rate hikes stemming from power crisis," and you can access the opinion here.

In other news, you can access here an article entitled "Judge rejects media request to see details of Kobe Bryant case"; here "Scott Peterson's attorneys appeals order opening preliminary hearing to public"; here "Boudin Parole Shocks Victims' Families"; and here "Five Gun Dealers Settle Calif. Lawsuit."
Posted at 23:15 by Howard Bashman



The Supreme Court of California delivers bad news for sexually violent predators: See this decision issued today.
Posted at 23:09 by Howard Bashman



Bomb repair update: Here, from the Yale Law School.
Posted at 23:06 by Howard Bashman



"Judge rebuffs ACLU bid to push vote to March; Ruling turns away concerns over punch-card ballots": Bob Egelko has this report in today's issue of The San Francisco Chronicle.

In response to my post yesterday about how the Ninth Circuit's ruling on appeal could very well depend on which three judges are assigned to hear and decide the case, a recent former law clerk to a Ninth Circuit judge today emailed to observe:
Because it's a preliminary injunction appeal, it will in all likelihood be heard by a motions and screening panel. This month's panel consists of Chief Judge Schroeder and Judges Hawkins and Tashima. They can, of course, kick it to the next available merits panel, but by then it might be too late.
Of course, if the appeal is not taken until next month, presumably the composition of the motions and screening panel will change. The current panel is neither the most liberal nor the most conservative panel that could have been drawn from the judges serving on that court, although I think that most would rank the panel left of center. Circuit Judge Michael Daly Hawkins participated in my Web log's "20 questions for the appellate judge" feature in June 2003, and you can access his interview at this link.
Posted at 23:04 by Howard Bashman



Yale Law Professor Jack M. Balkin discusses the recent events in Alabama: Here you can access a post entitled "Chief Justice Moore As Administrator, Not Judge" and here a post entitled "Keep Alabama Baptist." Both are worth a look.
Posted at 22:49 by Howard Bashman



"Scientology wanted millions, gets $4,500; Jurors don't buy the church's argument that a lawyer involved in a wrongful death case owes it more than $2-million." The St. Petersburg Times contains this article today.
Posted at 22:43 by Howard Bashman



"Teens have right to have sex, lawyer argues": This article appears in today's edition of The Milwaukee Journal Sentinel.
Posted at 22:38 by Howard Bashman



"'Moses of Alabama' fights for his Rock": The Telegraph (UK) has this report.
Posted at 21:12 by Howard Bashman



"Moore 'disappointed' with fellow judges' order": The Montgomery Advertiser provides this update.
Posted at 20:00 by Howard Bashman



"Advocates debate the First Amendment, Ten Commandments": CNN.com offers this transcript.
Posted at 18:59 by Howard Bashman



"Thou Shalt Not Pray: Does the Constitution hate God?" Dahlia Lithwick has this essay online at Slate.
Posted at 18:56 by Howard Bashman



"Any other litigant might be embarrassed, but in litigation the government never blushes." A case that the Supreme Court of the United States remanded to the U.S. Court of Appeals for the Eleventh Circuit for reconsideration in light of the position of the Solicitor General of the United States has today produced a very interesting concurring opinion from Eleventh Circuit Judge Ed Carnes. Judge Carnes writes:
In his concurring opinion, my good friend, Judge Hill, suggests that the entire Court ought to consider in this case whether the Renfro decision should be overturned. Of course, each active judge of the Court will consider that when reading the opinions in this case. However, to the extent that Judge Hill thinks we ought to grant rehearing en banc for that purpose, I respectfully disagree. The Supreme Court's action in returning this case to us originated in a suggestion of the Solicitor General that we had erred in concluding that we lacked jurisdiction to review the order of the magistrate judge because the appellant did not raise it before the district court. The Solicitor General's position is that we can review the magistrate judge's order but only for plain error of which he says there is none. So the government's position now is that we reached exactly the right result, but for the wrong reason.

Were we not aware of the fickleness of the government's positions in criminal cases, see Hunter v. United States, 101 F.3d 1565, 1574 (11th Cir. 1996) (en banc) ("past experience has taught us that on occasion the government's position on criminal law issues is fluid"), we might be surprised. After all, it argued to us at oral argument and in a supplemental authority letter that we ought to apply Renfro and conclude that we lacked jurisdiction to review the denial of the motion to withdraw. Having convinced us to do that, the government then told the Supreme Court that we were wrong to do so. Any other litigant might be embarrassed, but in litigation the government never blushes.

In any event, the Solicitor General suggested to the Supreme Court that it might wish to remand this case to us so that we could have the benefit of the government's about-face on the matter. The Supreme Court did remand the case to us, for "further consideration in light of the position taken by the Solicitor General" in his brief to that Court. The remand does not imply that our Renfro decision is wrong. See United States v. Ardley, 273 F.3d 991, 994-95 (11th Cir. 2001) (opinion of Carnes, J., concurring in the denial of rehearing en banc). Nor does it mean that we must grant rehearing en banc. Instead, the remand order requires only that we reconsider our decision in light of the government’s new position, and we have done that. We all agree that the Renfro decision requires us as a panel to reach the same result we did before.

To the extent that the Supreme Court's remand requires that we also consider whether to grant rehearing en banc for the purpose of reconsidering the Renfro decision, I have done that, too. My conclusion is that granting rehearing en banc would not be a prudent use of this Court's scarcest resource, which is the time of its judges. Cf. United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993) ("Given the finite resources of a court of appeals, the heavy artillery of en banc decision making should be resorted to only where smaller gauge weapons are unavailing.").
You can access the complete ruling at this link.
Posted at 17:29 by Howard Bashman



"Chief justice defiant on monument; Alabama jurist says he will again ask U.S. high court to intervene in divisive case": MSNBC offers this report, which includes a link to a video of Chief Justice Roy S. Moore's speech to his supporters this afternoon.
Posted at 17:24 by Howard Bashman



Call him Ishmael: Just how difficult can it sometimes be for a criminal convicted in federal court to win a habeas corpus action? This very short ruling that the U.S. Court of Appeals for the Fifth Circuit issued today provides one interesting example.
Posted at 17:09 by Howard Bashman



"Ten Commandments displays at issue across the nation": The Scripps Howard News Service has this report.
Posted at 17:00 by Howard Bashman



"Flag-burning teen indicted for arson": Today's edition of The Houston Chronicle contains this article.
Posted at 16:58 by Howard Bashman



"Refugee claimed she'd be persecuted for obesity": Canada's National Post today offers this report.
Posted at 16:55 by Howard Bashman



The economics of religion: A dissenting opinion that Seventh Circuit Judge Richard A. Posner issued yesterday in a case challenging Chicago's zoning ordinance for religious uses is quite interesting.
Posted at 16:53 by Howard Bashman



"Chief justice vows to fight monument removal order": CNN.com has just placed online this report. And United Press International reports here that "Conflict continues over religious monument."
Posted at 16:18 by Howard Bashman



"Alabama Judges Order Removal of Ten Commandments": Reuters provides this report.

Meanwhile, from Pennsylvania comes a report headlined "More Controversy Over Altoona's Ten Commandments Plaque."
Posted at 15:53 by Howard Bashman



"Alabama Justices Overrule Chief on Monument; The state Supreme Court orders removal of the embattled Ten Commandments monument, in line with a federal court decision. Chief Justice Roy Moore wanted to continue the fight." The Los Angeles Times offers this update. And Robert A. Martin, Editor and Publisher of The Montgomery Independent, has an essay in today's issue entitled "Moore ordered to appear before Judicial Inquiry body on Friday."
Posted at 14:57 by Howard Bashman



"Justices Order Ten Commandments Monument Removed": The New York Times provides this update.
Posted at 14:28 by Howard Bashman



"Statement By Gov. Bob Riley On The Ten Commandments Monument": You can access here the statement that Alabama's Governor has issued today.
Posted at 14:10 by Howard Bashman



Access online the order entered by the eight Associate Justices of the Alabama Supreme Court ordering the removal of the Ten Commandments monument: It is available here, via FindLaw.
Posted at 14:02 by Howard Bashman



"Statement of Attorney General Bill Pryor Regarding the Order of the Alabama Supreme Court to Require the Judicial Building Manager to Comply with the Federal Injunction": You can access this statement, issued today, at this link.
Posted at 14:00 by Howard Bashman



"Chief Justice Condemns Order To Remove Monument; District Judge Had Set Today As Deadline For Removal From Public View": Birmingham, Alabama's NBC-13 provides this report. And WSFA-12 reports here that "Monument to Go: Attorney General Says No One Above the Law." Finally for now, The Associated Press offers an article headlined "Riley: Court Orders on Monument Wrong, But Must Be Followed."
Posted at 13:53 by Howard Bashman



"Truly, we have no finer friend than the dog." The very lengthy footnote 13 contained in the opinion in this police dog bite case that the U.S. Court of Appeals for the Ninth Circuit decided today may strike some as a bit over the top.
Posted at 13:43 by Howard Bashman



"Ala. justices overrule Moore, order monument removed; U.S. Supreme Court had refused to block federal court order": The Atlanta Journal-Constitution offers this updated report, which states that "Moore and his attorneys are scheduled to appear before the judicial ethics panel in a private meeting Friday."
Posted at 12:45 by Howard Bashman



"Transcript: Justice Moore on His Monumental Battle." FOXNews offers this transcript of an interview broadcasted yesterday.
Posted at 12:35 by Howard Bashman



"Moore Not Likely to Back Down": The Associated Press offers an article from Gallant, Alabama that begins, "Alabama Chief Justice Roy Moore is in the fight of his life over a Ten Commandments monument, and his brother can't help but think how little has changed since they were kids growing up in this foothills town." And this AP article from Nebraska reports that the U.S. Court of Appeals for the Eighth Circuit is currently considering a Ten Commandments case involving "a similar marker in a city park in Plattsmouth."
Posted at 12:32 by Howard Bashman



"Alabama Judge Orders Removal of 'No Parking' Signs": ScrappleFace offers this commentary.
Posted at 12:22 by Howard Bashman



"Justices: Move Ten Commandments Display." The Associated Press provides this report.
Posted at 11:33 by Howard Bashman



BREAKING NEWS: "Monument to Go." WSFA-12, the NBC affiliate in Montgomery, Alabama, reports here that "Senior Associate Justice Gorman Houston has told WSFA that all eight associate justices of the Alabama Supreme Court have issued an order countermanding the order of Judge Roy Moore concerning the Ten Commandments monument. Houston says they have notified the building supervisor to make immediate plans to remove the monument. Attorney General Bill Pryor is scheduled to hold a press conference at 11:00 a.m." That would be 11 a.m. central time, presumably.
Posted at 11:16 by Howard Bashman



"Makeshift wall in front of Ten Commandments monument removed": Talk about your separation of Church and State. The Associated Press provides this update.
Posted at 11:13 by Howard Bashman



The invisible Ten Commandments: Montgomery, Alabama's NBC affiliate, WSFA-12, is reporting here that "Early Thursday morning a curtain/partition went up around the Ten Commandments monument in the Alabama Judicial Building. It is unclear at this time whether or not the plywood-like curtain/partition went up to provide a private viewing area for the monument or as a precursor to the movement of the monument. However, WSFA has confirmed the order to put up the curtain/partition came from Alabama Supreme Court's associate justices."

WTVM-9 in Columbus, Georgia reports here that "The Ten Commandments monument is no longer in plain view at the Alabama Judicial Building where Christian activists are conducting prayer sessions. Its unclear why the plywood-like covering was placed over the two-and-a-half ton stone monument. Yesterday the US Supreme Court declined to get involved in the case. Alabama Chief Justice Roy Moore did not comply with a midnight deadline to remove it. Court officials have closed the public entrance. Onlookers were told they would not be allowed inside unless they have official court business."

And The Associated Press reports here that "Ten Commandments monument walled off from public in building."

In other news, The Birmingham News reports here that "Circuit judge gives chamber a look at Moore case possibilities."
Posted at 10:23 by Howard Bashman



Look who's not paying attention now: Today's issue of The Houston Chronicle contains an article headlined "Burdine case has Harris County, TDCJ bickering; Issue: killer's parole eligibility." And yesterday that newspaper reported that "Mix-up says Burdine is eligible for parole; 'Sleeping lawyer' convict had agreed to life."
Posted at 09:24 by Howard Bashman



"Court to hear fetus, guardian arguments": This article appears today in The Orlando Sentinel.
Posted at 09:20 by Howard Bashman



"Man who crashed abortion clinic wins legal respite": The Houston Chronicle reported here yesterday that "Charges against a man accused of driving his van through the front entrance of a Houston abortion clinic in March were dismissed by a federal judge who ruled a part of the Freedom of Access to Clinic Entrances Act unconstitutional."
Posted at 09:19 by Howard Bashman



"Tortolita still does not exist." So begins an article from The Associated Press about this ruling that the U.S. Court of Appeals for the Ninth Circuit issued yesterday.
Posted at 09:12 by Howard Bashman



"Court vows ruling on same-sex unions": This article appeared in yesterday's issue of The Arizona Republic.
Posted at 09:10 by Howard Bashman



Other Ten Commandments-related news: Today's issue of The Toledo Blade contains an article headlined "Prayer rally at courthouse here to support display of biblical law." The Associated Press reports from Miles City, Montana that "County votes to move Ten Commandments." And The Post and Courier of Charleston, South Carolina reports that "Battle over Ten Commandments was waged in Charleston County."
Posted at 09:06 by Howard Bashman



Additional news and commentary pertaining to the Ten Commandments monument in the Alabama Judicial Building: Montgomery, Alabama's NBC affiliate, WSFA-12, provides a report entitled "What's Next in the Case of the 10 Commandments." The Mobile Register offers an article headlined "Johnstone led failed effort to move the monument" and an editorial entitled "Here's why Moore is losing." David G. Savage of The Los Angeles Times reports here that "Commandments Appeal Fails; The Supreme Court refuses to intervene hours before a judicial deadline for removal of a religious display from a state building." The Montgomery Advertiser contains an editorial entitled "Justices must find mettle to intervene." And at Town Hall, Marvin Olasky has an essay that begins, "Say what you will about Roy Moore of the Alabama Supreme Court, he does know how to restart a vital national debate that had been stalled."
Posted at 08:39 by Howard Bashman



This morning's Ten Commandments monument news from Alabama: The Montgomery Advertiser reports here that "Protesters removed, monument stays." The Birmingham News reports here that "Court won't stop monument move." A related editorial is entitled "Test of courage: Other state officials must act if Moore will not." The Mobile Register contains an article headlined "They came from all over for glimpse of the drama." And The Crimson White reports here that "Monument defenders undeterred."

This morning's edition of The Atlanta Journal-Constitution reports here that "Commandments feud spurs arrests; Supreme Court stays out of dispute in Alabama." And CNN.com reports that "Alabama justice not giving up monument fight; Ten Commandments still in place as deadline passes."

Finally for now, blogger Timothy Sandefur offers his thoughts on this matter.
Posted at 06:19 by Howard Bashman



"Supporters Begin Round the Clock Vigil: Alan Keyes Issues a Call to Montgomery": WSFA-12, Montgomery, Alabama's NBC affiliate, provides this late report.
Posted at 00:13 by Howard Bashman



Wednesday, August 20, 2003
"Jurist Defies Deadline on Monument; $5,000-a-Day Fines May Begin": Thursday's edition of The Washington Post will contain this report from Montgomery, Alabama. And Thursday's edition of The New York Times will report here that "Alabama's Top Judge Defiant on Commandments' Display."
Posted at 23:21 by Howard Bashman



Election law expert Rick Hasen provides his analysis of today's federal court ruling denying a stay of California's recall election: You can access Rick's evaluation here. How the Ninth Circuit rules will very likely depend on which three judges from this very large group are selected to hear and decide the forthcoming appeal.
Posted at 22:41 by Howard Bashman



"Alabama Judge Defiant Hours Before Deadline": Reuters provides this report. Birmingham, Alabama's NBC-13 reports here that "Moore Says He Will Not Remove Monument; Judge Claims Moving Monument Would Violate The Oath Of His Office." The Montgomery Advertiser reports here that "16 protesters arrested at monument." And National Public Radio offers an audio report entitled "Ten Commandments Judge Won't Budge" (Real Player required).

My reader who works in the Alabama Judicial Building emails from home this evening:
Well, I see that reports of the arrests have made all the news. Probably 10-15 deputy sheriffs, court security officers, and other law enforcement officers arrested 20 or so persons who had been gathered around the monument since this morning. Those busted were for the most part orderly -- singing Amazing Grace, clutching their Bibles, etc. No real violence, only a few people going stiff and refusing to stand up as they were taken away. These "hard resisters" were dragged off; fortunately the rotunda's stone floor is quite smooth, so the going was easy (more like a slide). No rough trade. The officers making the arrests were very solicitous of the persons being arrested. All those arrested were handcuffed as they were led away. I think they were loaded into an old school bus and hauled off to jail. Probably 50 or more employees at the Judicial Building watched the action from the second floor, above the main floor. (Before the arrests started, I noticed some of the law officers looking up nervously at the onlookers; maybe they aren't used to having so many folks watch them effect arrests.) Yes, court officials pretty much closed the building to the public at 4:00 and chased away the willing and most of the press. The news cameras had to settle for taping the action through the windows at the building's entrance. At 5:45, the building manager told us gawkers that all the indoor action was finished and that Justice Moore was going to give two "live interviews" in front of the monument later this evening. For some reason, two individuals who had been guarding the Rock were not taken away. One of them was an elderly lady in an electric wheelchair. Anyway, no one seems to know how the Rock will be removed. If it must be taken out the front doors, things will get interesting, because as of 6:00 p.m., 100 or more activists, onlookers, and other assorted oddballs were gathered near the steps just outside the building entrance.
The letter that I linked to earlier from Alabama Attorney General Bill Pryor to Representative Jim Carns, the Minority Leader of the Alabama House of Representatives, is quite interesting. First, Pryor makes the point that he does not have official authority over the inside of the Alabama Judicial Building. And, as earlier news reports made clear, a majority of the Justices serving on the Alabama Supreme Court today failed to vote in favor of a proposal to move the monument to a private area of the building. Second, Pryor's letter strongly suggests that had he been in control of the defense of the litigation against Chief Justice Roy S. Moore, the result may have been different. That's quite a gutsy thing to imply. Finally, the letter proudly trumpets many of Pryor's accomplishments that provide the basis for the filibuster against his nomination that is underway in the U.S. Senate. I'd have to think that he realizes he will not be joining the Eleventh Circuit anytime soon to have made those accomplishments such a central focus of his letter.

Update: Law Professor Tung Yin has an op-ed entitled "A justice's contempt for rule of law" in today's issue of The Iowa City Press-Citizen. (Via Law Professor Jeff Cooper, who shares some pertinent thoughts of his own here.)
Posted at 22:11 by Howard Bashman



"Arrests Begin at Monument Showdown": WSFA-12, Montgomery, Alabama's NBC affiliate, provides this report (with photos). And WTVM-9 in Columbus, Georgia has a report entitled "Busload Arrested and Led Away from Ten Commandments" which states that "Associate Justice Douglas Johnston[e] issued a statement saying he had proposed moving the monument to a private area of the judicial building after six o'clock this evening. He said that would avert any fines while Moore pursues appeals that could take months. But he said fewer than five of the justices concurred, and his proposal was not approved. The associate justices have indicated they may take action later."

Update: Here's another interesting, related item from the WSFA-12 site entitled "Attorney General Responds to House Leader." The description explains that "Attorney General Bill Pryor has released a response to Alabama House Minority Leader Jim Carns answering questions concerning the Ten Commandments rulings and the state's position on the matter. " An official copy of the letter from Alabama Attorney General Bill Pryor can be viewed here (PDF file).
Posted at 19:35 by Howard Bashman



"Conn. Media Seek Secret Court 'X-Files'": The AP offers this coverage.
Posted at 19:27 by Howard Bashman



Recall effort abandoned as "too difficult": That's what this Associated Press report says has happened with the effort to recall "six Nevada Supreme Court justices who set aside a constitutional mandate requiring a two-thirds legislative vote to pass taxes."
Posted at 19:13 by Howard Bashman



"High Court Nixes Ten Commandments Appeal": The Associated Press provides this update from Montgomery, Alabama, and the report states that "After the court acted, Montgomery police handcuffed about 20 Moore supporters who had kneeled and stood at the monument inside the building rotunda and refused to leave. Police then led the participants out of the building." An earlier update from The Montgomery Advertiser was headlined "Monument supporters locked inside Judicial Building."
Posted at 19:05 by Howard Bashman



"Supreme Court Dashes Hopes of Alabama Judge": Reuters provides this report.
Posted at 17:30 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Hawaii Kamehameha Ordered to Admit Student"; here "Dems Start Group to Try to 'Recall' Bush"; and here "60s Radical in Heist Granted Parole."
Posted at 17:27 by Howard Bashman



Access today's ruling that refused to delay the vote on California governor recall: It is available online here.
Posted at 17:20 by Howard Bashman



"Court Rejects Ten Commandments Appeal": Gina Holland of The Associated Press has this report. Next stop -- the International Court of Justice at The Hague?

You can access the U.S. Supreme Court docket entries at this link.

Finally for now, the University of South Alabama's student newspaper, The Vanguard, contains an editorial entitled "Moore Stupidity."
Posted at 16:29 by Howard Bashman



Federal judge refuses to delay vote on California governor recall: Thanks to Rick Hasen for emailing the news. I was on the phone a bit earlier with a reporter for a nationwide television news outlet, and the reporter was very interested in learning all about the Ninth Circuit, the federal appellate court with jurisdiction over California. CNN.com offers this report on the ruling, and you can access an Associated Press report here.
Posted at 16:08 by Howard Bashman



"Counting the Cloture Votes: Analyzing Senators' Support for Judicial Nomination Filibusters." Tom Jipping offers this analysis (17-page PDF document; via "Southern Appeal").
Posted at 16:05 by Howard Bashman



"Moore appeals again as clock ticks": The Montgomery Advertiser offers this updated report.
Posted at 16:00 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Fla. Prosecutor Cleared of Ethics Flap" and here an article entitled "Flaws Eyed in Calif. Sex Offenders Lists."
Posted at 15:58 by Howard Bashman



"Ten Commandments Judge Puts Hopes in Supreme Court": Reuters offers this coverage.
Posted at 15:15 by Howard Bashman



"Sky-high smut: Raunchy ad rises in Times Sq." The New York Daily News provides this report.
Posted at 14:28 by Howard Bashman



"Scientology seeks millions as punishment; A lawyer involved in a wrongful death suit should pay more than $2-million, the church contends." This article appears today in The St. Petersburg Times.
Posted at 14:26 by Howard Bashman



A reader's report from inside the Alabama Judicial Building: The following email arrived just moments ago:
From the Alabama Judicial Building. I know the word has been overused with regard to this story, but it's a circus around here. It's Wednesday, about 11:20 a.m. CDT, and the Rock is still in place. The media have the building surrounded with their trucks. Everyone and his uncle is being interviewed in the rotunda area, near the Rock. Dozens of people milling about out front. And there's an assortment of Christian activists prostrate on the front steps (praying), some guy driving a tricked-up RV pasted with anti-abortion, anti-gay, anti-federal government slogans. He's flying what looks to be some sort of religious flag and an upside-down US flag atop his war wagon. Let's see: Alabama's Head Atheist, Larry Darby, is here and dressed especially swell for the occasion -- he's even wearing some kind of 1940s-style men's hat. The man can sniff out a reporter's microphone from 50 paces. Across the street, sitting in his beach chair and drinking from his thermos, is a Hare Krishna (I think), wearing only a robe and some sandals. As you know, AG Pryor has vowed to act to remove the Rock if the deadline passes without further word from the fed courts. Security guards looking worried, police officers here and there around the building, with several motorcycle cops out front. Yellow traffic cones have been placed near the street. I wonder if they are going to cordon off the area when the time comes to move the Rock. I think it will only get busier as the day goes on. I imagine there's no freight elevator that could handle the thing if they (the people charged with moving it) hoped to take it out some other way than the front entrance. Too bad. I'd like to see Moore and his supporters complain about a sneaky removal, when the Rock's middle-of-the-night arrival in the building was a total deus ex machina. From conversations (had and overheard), I figure most everyone who works here, with the exception of a very few, want to see the thing go. It's been the subject of many jokes by employees here ever since its arrival. It also brought about added security measures in the building that are seen as an annoyance. [snip] The way I'm looking at things now is that it's a logistical problem: How to get that thing out of here without hurting or dragging off anyone and with minimal opportunity for Roy to do any more grandstanding. By the way, talk around the building, among staffs, is that every other Justice wants the thing gone.
Thanks much for that very interesting report.
Posted at 13:11 by Howard Bashman



Alabama Chief Justice Roy S. Moore's interview this morning with CBS News: You can view it online here (Real Player required).
Posted at 13:00 by Howard Bashman



The Lord's Prayer, private speech, and governmental endorsement of religion: A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit, in a decision issued today, ruled 2-1 that a federal trial court properly dismissed a lawsuit challenging a school board member's recitation of the Lord's Prayer at a graduation ceremony from which all official references to religion had been removed at the urging of the ACLU.
Posted at 12:04 by Howard Bashman



"Sperm Con's Sentence Stiffened": Today's edition of The New York Post contains this report (hey, I don't invent these headlines; I merely quote them).
Posted at 11:42 by Howard Bashman



"Ten Commandments Ruling in Ala. Appealed": The Associated Press provides this update, which reports that the request for a stay is now pending before the U.S. Supreme Court.
Posted at 11:04 by Howard Bashman



"Threats swirl as execution date nears; Three state officials are mailed threats connected to the Sept. 3 execution of an antiabortion activist and killer." The St. Petersburg Times today contains this report.
Posted at 10:48 by Howard Bashman



"Harvard grubs for 35M; Did B'klyn lawyer leave a will?" Today's issue of The New York Daily News reports here that "The death of a curmudgeonly Brooklyn lawyer has sparked a legal showdown between his lone surviving heir and Harvard Law School over his $35 million fortune."
Posted at 10:18 by Howard Bashman



"Deadline Passes for Commandments Monument": This Associated Press report incorrectly asserts that the federal court-imposed deadline for removing the Ten Commandments monument from public display in Alabama's Judicial Building was 12:00 a.m. this morning. In fact, the deadline is today, meaning that the deadline does not pass until today is over (see page 5 of this PDF document).

Also, let me extend a warm welcome to my readers who work in the Alabama Judicial Building. If you happen to see the monument on the move today or at any point in the near future, please feel free to keep me posted via email.
Posted at 10:03 by Howard Bashman



"Gulf War veterans sue banks, firms over chemicals; They allege liability for ailments linked to service in 1991": CNN.com offers this coverage.
Posted at 09:28 by Howard Bashman



"Busy Day Scheduled for Monument Supporters": Montgomery, Alabama's NBC affiliate WSFA-12 provides this report. And yesterday it reported here that "Living History Lesson Given as Moore's Wishes Denied Again."
Posted at 09:10 by Howard Bashman



Death and taxes: The Australian today is reporting that "A man acquitted of murder because he was psychotic has won a $300,000 payout after suing a hospital for negligently releasing him into the community."
Posted at 09:05 by Howard Bashman



Additional Ten Commandments monument coverage from Alabama: Today's edition of The Birmingham News reports here that "U.S. court refuses more time for Moore; Supporters plan vigil around monument." And The Crimson White is reporting today that "Coalition vows to block removal of Commandments monument."
Posted at 08:45 by Howard Bashman



In Wednesday's newspapers: The New York Times reports here that "Ashcroft Blasts Efforts to Weaken Terrorism Law." An article reports that "Tobacco Growers Consider Giving Up Price Supports." In local news, "F.B.I. Accused of Corrupting Computer Surveillance." In news from New Jersey, "Valedictorian Settles Dispute With Schools for $60,000." And a television review is entitled "You've Seen the Web Site. Now See the TV Show."

The Washington Post reports here that "U.S. Links Islamic Charities, Terrorist Funding; Affidavit Alleges Role of Northern Va. Groups." In local news, "Judge Delays Slaughter of Md. Mute Swans." You can access here an article headlined "Laying Claim to Arbitration: Law Firm Aims to Dominate Investor Securities Cases." And columnist David S. Broder has an op-ed entitled "Conservative Governors With Tax Appeals."
Posted at 08:35 by Howard Bashman



"Judge Says Enough Black Jurors Found": The Associated Press provides this report from Pittsburgh.
Posted at 08:32 by Howard Bashman



"How Appealing" is today's Smart Computing magazine Web site of the day: Details here.
Posted at 08:17 by Howard Bashman



This morning's Ten Commandments news: Today is the court-imposed deadline for Chief Justice Roy S. Moore of the Supreme Court of Alabama to remove from public display in the Alabama Judicial Building the large granite monument to the Ten Commandments. If the monument is not removed today, fines of $5,000 per day will begin tomorrow.

The Associated Press is reporting from Montgomery, Alabama that "Commandments Monument Backers Hold Vigil." The Montgomery Advertiser reports here that "Moore's down to last chance." A related op-ed by Jim Earnhardt is entitled "'Two-faced' label doesn't stick here."

The Mobile Register contains an article headlined "Monument coming down 'very soon,' Pryor says; Federal court has ordered removal of Ten Commandments memorial from state building." The Times Daily contains an article headlined "Don't expect action today on monument; Supporters promise vigil to block removal of stone." The Atlanta Journal-Constitution offers an article headlined "Alabama justice's last stand: Command for removal comes due." The Washington Post contains an editorial entitled "Demagogue Down South."

Finally for now, today's edition of The Arizona Daily Star reports here that "City religious sites may be vulnerable."
Posted at 06:20 by Howard Bashman



Tuesday, August 19, 2003
"This is after all supposed to be an opinion * * * not a movie review." Today the U.S. Court of Appeals for the Tenth Circuit issued an opinion from which Senior Judge Milton I. Shadur of the U.S. District Court for the Northern District of Illinois, sitting by designation, dissented. Judge Shadur's dissent contains the following passage:
What is all of this doing in a dispute between U.S. Cellular and the City of Broken Arrow? This is after all supposed to be an opinion (albeit a dissenting one), not a movie review.
Be sure to take a look at the complete ruling to place these dissenting remarks in context.
Posted at 23:04 by Howard Bashman



Failure to include key document in appendix on appeal leads federal appellate court to summarily affirm: The final two paragraphs in a published opinion that the U.S. Court of Appeals for the Tenth Circuit issued today are worthy of note:
The failure of both appellant and cross-appellant to include in the appendix the document that controls the resolution of the issues on appeal--the Travelers insurance policy issued to Autobody--deprives them of the right to challenge the judgment of the district court. We summarily AFFIRM.

One final point. Baseless attacks on the integrity of the district court are inappropriate even in offhand conversation. Here, Travelers' brief could easily be read as accusing the district court of misconduct, rather than simple legal error. Travelers' counsel must exercise greater care in the future. The record contains nary a hint of impropriety by the trial judge.
You can access the complete opinion at this link.
Posted at 22:55 by Howard Bashman



"Oral arguments scheduled in Fox-Franken suit; Meanwhile, print run increased for book": The Associated Press provides this report.
Posted at 22:52 by Howard Bashman



Available online from law.com: An article reports that "Big Tobacco Beats Back RICO Claims." In other news, "Microsoft's $521M Patent Loss: Company lawyers say a 'prior art' bench ruling led to a wrong outcome." Shannon P. Duffy reports that "Arbitration Agreement Permeated With Illegal Terms Can't Be Saved," and you can access today's ruling by the U.S. Court of Appeals for the Third Circuit at this link. From New York comes a report headlined "First the Blackout, Now the Computer Virus." Finally, based on this law.com report and some recent USA Today articles, InstaPundit's Glenn Harlan Reynolds is speculating about who might emerge as the new second-in-command at the U.S. Department of Justice.
Posted at 22:49 by Howard Bashman



Elsewhere in Tuesday's newspapers: In The Los Angeles Times, David G. Savage reports that "Consumers Union Seeks Lawsuit Shield; Publisher cites the 1st Amendment in urging the Supreme Court to prevent a trial over Suzuki rollover articles." In recall election-related news, you can access here an article entitled "U.S. Review Is Unlikely to Delay Recall Election; But Monterey County's plan to combine polling places may face Justice Department hurdle" and here an article entitled "Judge Puts Off Decision on Whether to Delay Recall Election." And Law Professor Jonathan Turley has an op-ed entitled "Hollywood Isn't Holding Its Lines Against the Pentagon."

The Boston Globe reports here that "Hawaii lawsuit challenges use of ancestry in school admissions." In local news, "Lawmakers OK back pay after lawyers refuse clients; $15.4m for those who defend poor." And a related article is entitled "'Lives are at stake,' says public defender."

The Washington Times reports here that "Adoption ruling cited as threat to families." In other news, "Judge rejects Muhammad aid request." And an op-ed by Bruce Fein is entitled "Sentencing certitude."
Posted at 22:25 by Howard Bashman



"Sodomy charges set to be pursued": The AP reports from Virginia that "Prosecutors plan to pursue sodomy charges against 26 men despite a U.S. Supreme Court ruling that legal experts say invalidates Virginia's antisodomy law."
Posted at 22:16 by Howard Bashman



"'Ten Commandments' Judge Loses 2 Appeals": The Associated Press offers this updated report.
Posted at 20:38 by Howard Bashman



Ken at the "CrimLaw" blog offers a John Ashcroft sentencing-related cartoon: Here it is, just in time for the big tour. And apparently Helen Thomas isn't much of a fan of the Attorney General, if this op-ed is any indication.
Posted at 19:46 by Howard Bashman



Fourth Circuit holds that individual's answers to FBI agents waived attorney-client privilege allowing government to ask individual's lawyer what advice was given to the client: Today's opinion describes the facts at issue in the following manner:
In March 2002, Appellant was interviewed by two FBI agents for the purposes of (1) determining whether Appellant, who is of Middle Eastern descent, had any information that might be helpful in connection with terrorism investigations; and (2) discussing with Appellant his earlier filing of an INS document known as Form I-485, sometimes referred to as a "green card" application. This noncustodial interview was conducted in the lobby of Appellant's apartment building and lasted approximately 45 minutes.

During the interview, one of the FBI agents asked Appellant about an answer he had provided to the following question on Form I-485 ("Question 1(b)"): "Have you ever, in or outside the United States . . . been arrested, cited, charged, indicted, fined, or imprisoned for breaking or violating any law or ordinance, excluding traffic violations[?]" J.A. 9 (internal quotation marks omitted). Appellant had answered that question "no." Id. (internal quotation marks omitted). Before the interview, the FBI had learned that Appellant had a prior conviction for shoplifting. The FBI agent confronted Appellant with a printout reflecting that conviction and asked why he had answered "no" to Question 1(b). Appellant responded, "I answered 'no' to the question ... under the advice of an attorney." Id. at 15 (internal quotation marks omitted). Appellant subsequently identified Counsel by name, and he also gave the name of a second attorney.

In February 2003, in response to a Government subpoena, Counsel appeared before a federal grand jury that was investigating Appellant for making a false statement on Form I-485. After answering some preliminary questions establishing that she was Appellant's former attorney, Counsel was asked two questions that are relevant to this appeal: (1) "[D]id [Appellant] ... consult with you on questions involving the filling out of the I-485?"; and (2) "[D]id you advise him to answer 'no' to [Question 1(b)]?" Id. at 7-8 (internal quotation marks omitted). Counsel declined to answer these questions, asserting that her answers would reveal privileged information.
Today a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled, on these facts, that the client's answers to the FBI agents waived the client's attorney-client privilege and thus entitled the federal government to compel the attorney to answer the questions asked in front of the grand jury. You can access the complete opinion at this link.
Posted at 19:28 by Howard Bashman



"'Ten Commandments' Justice Loses Again": The Associated Press provides this report. In other coverage, The Times-Journal reports here that "Local judge enters Moore debate." And a related op-ed in that same newspaper by Ben Shurett is entitled "A time for deep searching my soul."
Posted at 19:10 by Howard Bashman



"Rice under fire on racial preference; Group protests university's reinstating affirmative action": The Houston Chronicle posted this article to its Web site this afternoon.
Posted at 16:58 by Howard Bashman



"Texas Court Stops Scheduled Execution": The Associated Press provides this report. Adam Liptak of The New York Times brought national attention to this matter this morning in an article headlined "Unconstitutional Procedure May Not Halt Execution."
Posted at 15:52 by Howard Bashman



U.S. Court of Appeals for the Fifth Circuit reverses dismissal of lawsuits filed on behalf of those injured or killed in Texas A&M University bonfire disaster: You can access today's ruling at this link.
Posted at 15:11 by Howard Bashman



Sharply divided en banc Seventh Circuit rules that Congress acted lawfully in limiting the attorneys' fees that can be recovered by prisoners who prevail in a civil rights action: Eleven judges participated in considering the case en banc, and the judges divided 6-5 on the result, with no opinion gaining more than five votes. The lead opinion is written by Circuit Judge Frank H. Easterbrook. You can access the entire ruling (a 71-page PDF file) at this link.
Posted at 13:40 by Howard Bashman



Divided three-judge Ninth Circuit panel issues its own equitable consent decree in environmental action: You don't see this every day.
Posted at 13:31 by Howard Bashman



Beethoven's clown car: Jan Crawford Greenburg reports in today's edition of The Chicago Tribune that the Suzuki Motor Corp. v. Consumers Union product disparagement case has reached the Supreme Court of the United States. You can access my coverage of the Ninth Circuit's ruling in that case via this link.
Posted at 13:22 by Howard Bashman



"Carnival in the Court": The Los Angeles Times today contains an editorial that begins, "Alabama Chief Justice Roy Moore insists that he will not remove a 2-ton monument listing the Ten Commandments from his courthouse." Not all of the facts in the editorial are entirely accurate, but it is worth a look nonetheless.
Posted at 13:12 by Howard Bashman



The San Francisco Chronicle is reporting: You can access here an article entitled "Oct. 7 recall election date OKd; Timing 'is not a problem,' Justice Dept. reportedly says"; here "Prop. 54 support drops, says poll; It would ban state from collecting data on race, ethnicity"; and here "Animal-rights vandals hit chef's home, shop; Activists call French-style foie gras cruel to birds."
Posted at 12:19 by Howard Bashman



Stuart Buck takes issue with the "Editorial Observer" column by Adam Cohen in yesterday's edition of The New York Times: You can access Stuart's comments here. Stuart's post begins, "The NY Times offers yet another dishonest assessment of Bush's judicial nominees, this one by Adam Cohen."
Posted at 12:13 by Howard Bashman



"Judge Gerald Bruce Lee: Doing What Judges Are Supposed to Do." Elaine Cassel has this essay online at CounterPunch.
Posted at 12:10 by Howard Bashman



Waking the dormant Commerce Clause: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit issued an opinion that begins:
The South Dakota Constitution prohibits corporations and syndicates, subject to certain exemptions, from acquiring or obtaining an interest in land used for farming and from otherwise engaging in farming in South Dakota. This restriction, known as Amendment E, was added to the South Dakota Constitution as the result of a 1998 referendum. The thirteen Plaintiffs in this case allege that Amendment E violates the dormant Commerce Clause of the United States Constitution, and a smaller group of these Plaintiffs also claims that it violates the Americans with Disabilities Act (ADA).

Prior to trial, the District Court dismissed the ADA claim, and the Plaintiffs amended their complaint to delete that claim. After a bench trial, but prior to issuing its opinion, the District Court sent a memorandum to all parties stating that it erred in dismissing the ADA claim before trial. In its opinion, the District Court concluded that Amendment E violates both the ADA and the dormant Commerce Clause, and it enjoined Defendants Joyce Hazeltine, the South Dakota secretary of state, and Mark Barnett, the State's attorney general, from enforcing Amendment E. S.D. Farm Bureau, Inc. v. Hazeltine, 202 F. Supp. 2d 1020 (D.S.D. 2002). Hazeltine and Barnett appeal, as do two parties that intervened on the side of the Defendants, Dakota Rural Action and South Dakota Resources Council.

We conclude that the District Court improperly considered the ADA claim, but we affirm its judgment by concluding that Amendment E contravenes the dormant Commerce Clause.
You can access the complete ruling at this link.
Posted at 11:47 by Howard Bashman



"Ala. Judge Seeks Stay on Monument Removal": The Associated Press offers this report. You can access yesterday's trial court decision denying a stay at this link.
Posted at 11:40 by Howard Bashman



In today's mail: A card announcing "Criminal Records -- New on Westlaw." Inside the card notes "Bad news for bad guys. Good news for you!"
Posted at 10:18 by Howard Bashman



"Justice Ginsburg would put a dress on the Lone Ranger": Phyllis Schlafly has this essay online at Town Hall.
Posted at 10:05 by Howard Bashman



"Attack-ad case appealed: Dispute in 2000 attorney-general election submitted to U.S. Supreme Court." This article appears in today's issue of The Charlotte Observer.
Posted at 09:26 by Howard Bashman



"Death-row inmates seek clemency; Gov. Easley faces decisions on 3 executions": The Charlotte Observer today contains this report. And a related item is entitled "On Death Row."
Posted at 09:25 by Howard Bashman



"Raising the ethics bar": An editorial in today's edition of The St. Petersburg Times begins, "At its recent meeting, the American Bar Association decided lawyers are not bound to be their clients' accomplice in crime."
Posted at 09:23 by Howard Bashman



"No legal notices in the paper? Lawmaker proposes placing them on the Internet. Publishers voice opposition." This article appears today in The St. Petersburg Times.
Posted at 09:20 by Howard Bashman



Feres doctrine in the news: The Detroit Free Press today contains a series of articles relating to the death of a Marine recruit. The lead story is headlined "Military's failures left recruit to die." You can access here "Tragedy's time line"; here "Parris Island: A Marine proving ground"; and here "Letters written home." And an article bears the headline "The Feres Doctrine: Ruling makes battle an uphill one."
Posted at 09:18 by Howard Bashman



"City fights to send strippers packing before club opens": The Miami Herald today provides this report.
Posted at 09:11 by Howard Bashman



"Transgender Hemingway child's will in question": The Associated Press has this report. (A Google search indicates that no musical group yet exists named the "Transgendered Hemingways.")
Posted at 09:09 by Howard Bashman



"Verdict's in: Law school's hot." The Orlando Sentinel today contains this article.
Posted at 09:04 by Howard Bashman



In Tuesday's newspapers: In The New York Times, Adam Liptak reports that "Unconstitutional Procedure May Not Halt Execution." An article reports that "Bush Administration Plans Defense of Terror Law." In other news, "Ruling Expected on Effort to Delay California Recall Election." In business news, "Lawyers Seek Big Fee for Negotiating Credit Card Deal." And Paul Newman has an op-ed entitled "Paul Newman Is Still HUD."

The Washington Post reports here that "Sniper Suspect Praised Terrorists; Prosecutors Buttress Arguments for Death In Muhammad Case." In other news, "Ex-Prisoners Allege Rights Abuses by U.S. Military." An article reports that "Justice Dept. Declines To Intervene in Recall; Civil Rights Concerns 'Not a Problem,' Official Says." In news from Chicago, "Head of Muslim Charity Sentenced; Ill. Man Diverted Funds to Militants; No Proof of Terror Link, Judge Says." And an editorial is entitled "Listening In on the High Court."
Posted at 08:45 by Howard Bashman



"Could execution turn killer into 'martyr' over abortion?" Today's edition of The Miami Herald contains this report.
Posted at 08:44 by Howard Bashman



"Grandparents lose legal fight; Parents have final say about visitation in most cases, S.C. high court rules": This article appears in today's edition of The State. You can access yesterday's ruling of the Supreme Court of South Carolina at this link.
Posted at 08:42 by Howard Bashman



In other news from Alabama: The Tuscaloosa News reports here that "Black student gets bid to white sorority; Invitation is a first for African-American." The Birmingham News reports here that "White sorority at UA accepts 1st black." The Mobile Register reports here that "Historically white sorority at UA admits black woman." And The Crimson White reports here that "Traditionally white sorority system integrates; Gamma Phi Beta offers bid to black freshman."
Posted at 08:30 by Howard Bashman



"Commandments Monument: Moore appeals to 11th Circuit." Today's edition of The Montgomery Advertiser contains an article that begins: "Like a condemned man facing his final hours, Alabama Supreme Court Chief Justice Roy Moore is scrambling to stave off a fateful moment."

The Birmingham News today contains an article headlined "Judge: Monument must go; Says Moore wants `direct confrontation.'" And a related editorial is entitled "Pryor commitment: Attorney general, justices must move quickly."
Posted at 08:25 by Howard Bashman



"Louisianans petition to free 'good crook'": This article appears in today's issue of The Atlanta Journal-Constitution.
Posted at 08:08 by Howard Bashman



This morning's Ten Commandments news and commentary: The San Antonio Express-News reports here that "Rally backs Alabama judge in Ten Commandments flap." Yesterday's edition of The Eufaula Tribune contained an article headlined "Monumental debate: If the Barbour County court of public opinion had authority to rule on the case, the Ten Commandments monument would likely have a permanent home in the State Judicial Building." A related editorial was entitled "Judging our justice." Florida Today offers an editorial entitled "Flouting the law." And The Atlanta Journal-Constitution offers an op-ed by Tom Teepen entitled "Alabama having a hard time being part of the United States."
Posted at 06:20 by Howard Bashman



Monday, August 18, 2003
U.S. Supreme Court Justice Anthony M. Kennedy condemns mandatory-minimum criminal sentences: This past Saturday's episode of C-SPAN's fine program "America and the Courts" included video of Justice Kennedy's recent speech to the American Bar Association's annual meeting. You can view the program at this link (Real Player required). Justice Kennedy's speech begins approximately eight minutes into the program.
Posted at 23:16 by Howard Bashman



Available online at law.com: Jonathan Groner reports that "Judges' Ire Up as Downward Departure Issue Persists." Shannon P. Duffy reports that "Posting Addresses of Convicts OK'd Under Megan's Law." You can access here an article headlined "Searching for a New No. 2; Replacing DOJ deputy Larry Thompson won't be easy." In news from New Jersey, "Loss for Off-Premises Employees Injured While on a Personal Errand; Workers' compensation claim denied despite supervisor's permission for trip to post office." And an obituary bears the headline "William Orrick Was Lion of Federal Bench."

Additionally, Legal Times (free registration required) offers here a transcript entitled "High Court Post-Mortem: Five practitioners review a historic year and talk about the cases they won and lost." Evan P. Schultz has an essay entitled "Who's Hard on Sentencing? John Ashcroft may be targeting judges and prosecutors, but Congress told him to do it." And Bonnie J. Campbell has an essay entitled "Penny-Wise, Pound-Foolish: Hiring contingent-fee lawyers to bring public lawsuits only looks like justice on the cheap."
Posted at 23:02 by Howard Bashman



Elsewhere in Monday's newspapers: The Boston Globe contains an article headlined "Pleas of frustration; Lawyers questioning, abandoning their profession."

The Washington Times reports here that "'How to be Gay' course draws fire at Michigan." In other news, "Idealism motivates law students." Nat Hentoff has an op-ed entitled "Bush's personal rule of law." And Edgar H. Brenner has an op-ed entitled "Risky Patriot Act exemptions."

In The Los Angeles Times, you can access here an article headlined "Wanted: A look. Image makers agree: Davis is not up to snuff. And with one bulging exception, most of those hoping to unseat him aren't, either." An obituary from The Associated Press bears the headline "William Orrick, 87; Judge in Hearst, Desegregation Cases." An editorial is entitled "Let Judges Be Judges." And Jeff Keating has an essay entitled "K2695's Big Jury Adventure, Part II."

Finally for now, Samuel G. Freedman has an op-ed in USA Today entitled "Gay marriages open gate to social stability."
Posted at 22:41 by Howard Bashman



"Justice Department Clears Oct. 7 Recall Election": The Associated Press provides this news from California.
Posted at 22:27 by Howard Bashman



"Thompson Denies Moore's Request To Keep Monument; Moore Sought To Delay Removal Until Case Heard By Supreme Court": NBC-13 from Birmingham, Alabama provides this coverage. You can access today's ruling of the U.S. District Court for the Middle District of Alabama at this link.
Posted at 20:25 by Howard Bashman



"Judge Considers Calif. Recall Delay Push": The Associated Press offers this report.
Posted at 20:00 by Howard Bashman



Some quite wonderful news relating to this Web log's monthly "20 questions for the appellate judge" feature: Senior Eighth Circuit Judge Richard S. Arnold will be the November 2003 interviewee.
Posted at 19:44 by Howard Bashman



Dissenting Fifth Circuit judge identifies another potential candidate for rehearing en banc: Today a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit reversed the drug possession conviction of an individual arrested during a traffic stop. The majority's opinion begins:
Defendant-appellant Reginald Brigham appeals the district court's denial of his motion to suppress codeine seized during a routine traffic stop from the rental car he was driving. He contends that the investigating officer subjected him to a prolonged detention in violation of his Fourth Amendment rights, which tainted the officer's subsequent consensual search. Because we agree that Brigham was unlawfully detained, we reverse the district court and remand for entry of judgment of acquittal.
Circuit Judge Edith H. Jones dissents in an opinion that concludes:
I suggest that the reasoning of the Seventh Circuit in Childs more correctly applies Fourth Amendment reasonableness principles to individual traffic stops. As the court noted:
Questions that hold potential for detecting crime, yet create little or no inconvenience, do not turn reasonable detention into unreasonable detention. They do not signal or facilitate oppressive police tactics that may burden the public--for all suspects (even the guilty ones) may protect themselves fully by declining to answer. Nor do the questions forcibly invade any privacy interest or extract information without the suspects' consent.
Childs, 277 F.3d at 954. In short, I believe this case is wrongly decided under Dortch, Jones, and Santiago. Alternately, that line of cases is incorrect and should be reconsidered by our court en banc.
You can access the complete ruling at this link.
Posted at 19:33 by Howard Bashman



Fifth Circuit grants rehearing en banc to address important question of waiver of state sovereign immunity in exchange for receipt of federal funds: It is well-established that a State may validly waive its sovereign immunity in exchange for participating in a federally-funded program where the availability of funding is conditioned on such a waiver. The U.S. Court of Appeals for the Fifth Circuit, however, in a series of recent cases (see here and here, for example) has ruled that such a waiver in exchange for funding does not occur if the State had reasonably (but mistakenly) believed that Congress had already abrogated state sovereign immunity via legislation under Section 5 of the Fourteenth Amendment. Thus, if a State reasonably believed it had no sovereign immunity remaining to waive, the acceptance of funds by itself would not work a waiver if later it turns out that Congress lacked the power under Section 5 of the Fourteenth Amendment to abrogate the State's sovereign immunity. The Fifth Circuit's approach is at a minimum very clever. Whether it will survive en banc review remains to be seen. You can access last week's order granting rehearing en banc (posted online today) at this link. As noted in my post here from July 22, 2003, today's order is the second case that the Fifth Circuit has taken en banc that presents this question.

It would only be speculation to discuss why the Fifth Circuit would take two cases en banc that presented such similar issues. It is noteworthy, however, that Circuit Judge Edith Brown Clement was recused from the first case to go en banc, leaving fourteen judges to decide that case and giving rise to the possibility of an evenly divided court. In the case that just went en banc last week, Judge Clement is not recused, and fifteen judges are set to decide that case en banc.
Posted at 19:06 by Howard Bashman



U.S. Court of Appeals for the Third Circuit reverses injunction prohibiting public disclosure of sex offenders' home addresses: The decision issued today is a win for New Jersey's Internet registry in connection with that State's Megan's Law.
Posted at 17:24 by Howard Bashman



What happens after a criminal defendant who assents to a joint-defense agreement then decides to plead guilty and testify against his co-defendant? Today the U.S. Court of Appeals for the Eleventh Circuit issued an interesting opinion addressing that question. The opinion concludes:
We hold that when each party to a joint defense agreement is represented by his own attorney, and when communications by one co-defendant are made to the attorneys of other co-defendants, such communications do not get the benefit of the attorney-client privilege in the event that the co-defendant decides to testify on behalf of the government in exchange for a reduced sentence. The district court's error prevented the introduction of crucial evidence that would have significantly undermined the credibility of three of the Government's key witnesses. There is a reasonable possibility that the jury would not have convicted Almeida but for the district court's erroneous exclusionary ruling. The error was not harmless, and Almeida's conviction is therefore VACATED and the case is REMANDED for a new trial.
You can access the complete ruling at this link.
Posted at 17:00 by Howard Bashman



"Verdict on lawyer ads is don't mislead": This editorial appears today in The Indianapolis Star.
Posted at 16:40 by Howard Bashman



"Majority Favors Law Against Gay Marriage": The Associated Press has this report. And The American Enterprise Institute offers additional survey data here on a page entitled "Attitudes about Homosexuality."
Posted at 15:55 by Howard Bashman



Learn all about Law Professor Lawrence Solum of the "Legal Theory Blog": Here, via "Crescat Sententia."
Posted at 15:46 by Howard Bashman



"Protesters at U.S. courthouse back display of Ten Commandments": The San Antonio Express-News reports here that "Some 30 people gathered today in front of San Antonio's federal courthouse in support of an Alabama judge's efforts to recognize the Ten Commandments as the 'moral foundation of law.'"
Posted at 15:27 by Howard Bashman



How to have a better recall election next time: Law Professor Rick Hasen explains in an op-ed you can access via this link.
Posted at 14:31 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Judge to Hear Calif. Recall Delay Request"; here "Defense Request Denied in Sniper Case"; here "Muslim Charity Leader Sentenced to Prison"; and here "Judge Bans Cameras at Peterson Hearing."
Posted at 14:04 by Howard Bashman



Fake drug checkpoint produces real drug arrests: On Friday of last week, The Denver Post reported here that "Colorado law enforcement officers can use fake or 'ruse' checkpoints to ferret out drug dealers and drug users, the Colorado Court of Appeals ruled Thursday, even though real drug checkpoints are unconstitutional." You can access last week's ruling of the Colorado Court of Appeals at this link.

In other coverage, Friday's edition of The Rocky Mountain News contained an article headlined "'Drug check' on signpost up ahead? It's white-lie zone; But police ploy legal, appeals court rules." The Associated Press reported here that "Colorado OKs Fake Checkpoints for Drugs." The Denver Post today contains an editorial entitled "It's legal because it's phony." And today's edition of The Durango Herald contains an editorial entitled "Fake checkpoints: Not best use of scarce law-enforcement resource."

This practice has also recently been in the news in Indiana. Back on August 7th, The Indianapolis Star reported here that "Officials use threat of I-65 checkpoints in drug fight." The very next day, that newspaper published an article headlined "Checkpoints phony, but arrests real; Ruse targets drugs, raises legal questions." And then on August 11th, the newspaper reported that "Marion County Sheriff Frank Anderson has halted any more phony checkpoints on interstate highways until he reviews their effectiveness."

Update: Fritz Schranck of the "Sneaking Suspicions" blog had this post last October about fake drug checkpoints. Coincidentally, the date of Fritz's post was my 38th birthday.
Posted at 12:08 by Howard Bashman



Law Professor Jeff Cooper remembers Second Circuit Judge Fred I. Parker: Details here.
Posted at 09:51 by Howard Bashman



This morning's Ten Commandments news and commentary: The Birmingham News reports here that "Rabbi tells Moore Jews support display." And an editorial is entitled "Truth and consequences: Moore faces ethics complaint for defying court order." Elsewhere, The Ledger of Lakeland, Florida contains an editorial entitled "Continuing an Alabama Tradition."
Posted at 09:34 by Howard Bashman



"20 questions for the appellate judge" update: New installments of this Web log's very popular monthly feature "20 questions for the appellate judge" traditionally appear online here on the first Monday of each month. Because the first Monday in September 2003 is the Labor Day holiday, the September 2003 interview will appear on Tuesday, September 2, 2003. Judge William Curtis Bryson of the U.S. Court of Appeals for the Federal Circuit is September's interviewee. And Eleventh Circuit Judge Stanley F. Birch, Jr. will be the October 2003 interviewee.

As always, I am looking for additional federal and state court appellate judges to participate in the "20 questions" feature in the months ahead. To participate, all that a federal or state court appellate judge needs to do is volunteer via email. The first volunteer will be the November 2003 interviewee, and the months that follow will be assigned on a first come, first served basis.
Posted at 09:01 by Howard Bashman



"Judges often in the eye of storm: Many threats are made, few are carried out. Hearing set for landlord charged in scheme." The Detroit News today contains this report.
Posted at 08:56 by Howard Bashman



"Justice and mercy": Debra Saunders has this essay online at Town Hall.
Posted at 08:50 by Howard Bashman



"'We Will Not Give In': Purdue fights Oxy suits tooth-and-nail -- and wins." This article appears today in The Lexington Herald-Leader. (A bunch of related links can be found at the bottom of this page.)
Posted at 08:48 by Howard Bashman



In Monday's newspapers: In The New York Times, Neil A. Lewis reports that "Medical Establishment Hopes to Thwart Residents' Lawsuit." In other news, "Inmates Are Free to Practice Black Supremacist Religion, Judge Rules." An article reports that "Where Parties Select Judges, Donor List Is a Court Roll Call." And Adam Cohen has an "Editorial Observer" column entitled "Cheering on the March of Constitutional Progress for as Long as It Lasts."

A front page article in The Washington Post bears the headline "Patient Privacy Rules Bring Wide Confusion; New Directives Often Misunderstood."

And The Christian Science Monitor reports here that "US notches world's highest incarceration rate; A report highlights extent to which many citizens have served time in prison."
Posted at 08:27 by Howard Bashman



"Scalia Addresses Colorado Telecom Summit": The Associated Press provides this report.
Posted at 05:47 by Howard Bashman



Sunday, August 17, 2003
"Exclusive: Ashcroft’s Campaign to Shore Up the Patriot Act." The August 25, 2003 issue of Newsweek contains this report.
Posted at 22:59 by Howard Bashman



"Davis to OK rights for same-sex couples; No position yet from top GOP recall rival": Bob Egelko has this article in today's edition of The San Francisco Chronicle. And The Sacramento Bee today contains an article headlined "Davis: I'll sign gay rights bill; The domestic partners measure awaits Senate action this week."
Posted at 22:40 by Howard Bashman



"Other molesters to follow DeVries; 432 'sexually violent predators' have already served prison terms": This article appears today in The San Francisco Chronicle.
Posted at 22:39 by Howard Bashman



"Separating church and statehouse a task of biblical proportions": The Associated Press offers this report from Harrisburg, Pennsylvania.
Posted at 22:37 by Howard Bashman



"With this ring": This lengthy article about gay marriage appears in today's edition of The Philadelphia Inquirer.
Posted at 22:36 by Howard Bashman



Elsewhere in Sunday's newspapers: The Los Angeles Times reports here that "Davis Would Sign Domestic Partners Bill; The legislation would extend most of the legal rights of marriage to gays and lesbians. Critics say the governor is seeking votes." An editorial entitled "A Misdirected Attack" argues against one particular threatened filibuster. And an op-ed by Barry Tarlow is entitled "Rape Suspects' Uphill Road."

The Boston Globe reports here that "Virginia city braces for sniper trial; Chesapeake plays reluctant host to media invasion." An editorial is entitled "Trying to parse death." And an op-ed by Lester Grinspoon is entitled "The shifting medical view on marijuana."

Finally for now, David Davenport has an op-ed in The Washington Times entitled "Stretching an elusive wall."
Posted at 22:20 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Report: 5.6M Have 'Prison Experience'"; here "Marine Punished in Military Credit Case"; and here "Jury to Be Chosen for Post-9/11 Shooting."
Posted at 22:10 by Howard Bashman



"Freed from prison, Amrine now speaks against death penalty": This article appears in today's edition of The St. Louis Post-Dispatch.
Posted at 12:42 by Howard Bashman



"Lawyers air views on 'blogs'; Del. attorneys catch newest tech trend": Today's issue of The News Journal contains this report.

In other blogging-related news, The Register offers a report entitled "Webloggers deal Harvard blog-bores a black eye." Update: John Palfrey responds to The Register's report in a blog post you can access here.
Posted at 10:48 by Howard Bashman



"The Point of Departures: Just sentences require judicial discretion." Jacob Sullum has this essay online at Reason.
Posted at 10:40 by Howard Bashman



In Sunday's newspapers: The Washington Post contains an article headlined "Law Clerk Can File Away This Experience Under Memorable." An article reports that "Alabama Tied in Knots by Tax Vote; Riley Stuns GOP by Stumping for Hike." In other news, "Family Values Groups Gear Up for Battle Over Gay Marriage." An article reports that "The Tax Protesters' Refrain Works for Once." A front page article is headlined "Loudoun Landowners Battle Building Curbs; Flurry of Lawsuits Viewed as Backlash." And an op-ed by Tom McNichol is entitled "Those Dirty Low-Down Downloads."

Finally for now, The New York Times publishes letters to the editor under the heading "Harsh Justice Puts Lives in the Balance."
Posted at 10:30 by Howard Bashman



"The teen, an alderman and Ten Commandments: The young man's letter questioning a stone monument in a city park prompts a tempest of biblical proportions." This article appears in today's issue of The St. Petersburg Times.
Posted at 09:06 by Howard Bashman



In news from Alabama: Today's edition of The Montgomery Advertiser reports here that "Thousands rally for Commandments," here that "Geography no limit to faithful," here that "Peace reigns at Moore rally," and here that "Thousands throng to display." And James Evans has an op-ed entitled "Why Riley's, Moore's actions greatly different."

Montgomery, Alabama's NBC affiliate, WSFA-12, provides links to audio of the major speeches delivered at yesterday's rally. And you can access here a photo gallery.

Today's issue of The Birmingham News contains an article entitled "Capitol rally." Earlier in the week it published an editorial entitled "Moore's mission: Chief justice must take high road on Commandments." Today's edition of The Huntsville Times contains an article headlined "At state's Capitol, a parade of patriotism, prayer, song." And The Tuscaloosa News reports here that "Thousands rally to back Moore; Commandments' fight draws nationwide support."
Posted at 08:58 by Howard Bashman



Saturday, August 16, 2003
Elsewhere in Saturday's newspapers: The Los Angeles Times reports here that "Traffic Court Gets Its Man: Figure in Anthrax Inquiry. The FBI trailed Steven Hatfill, but D.C. police brought him to justice in a $5 pedestrian case." In other news, "U.S. Judge May Put Recall Vote on Hold." A related article reports that "Judge Is No Stranger to Controversy; He has been involved in cases involving medical marijuana and Nazi memorabilia." In other news from California, "$19 Million for Luster Rape Victim; Judge says the large amount reflects the 'perverse' crime and hopes it serves as a deterrent against similar drug-assisted assaults." An article reports that "Public Excluded From Judge's Pretrial Hearing; A jurist decides that airing potential evidence might make it impossible to find a fair jury. Two newspapers protest the ruling." From Los Angeles comes news that "Actor Convicted of Abusing Girlfriend; Tom Sizemore faces up to four years in jail for domestic violence and criminal threats against former 'Hollywood Madam' Heidi Fleiss." And an article reports that "Former First Lady Fails to Appear for Deposition Ordered by Court."

The Washington Times reports here that "Anthrax-probe figure loses ticket fight Hatfill was issued." And in other local news, "Sniper defense charges denied."

Finally, The Boston Globe reports here that "Top court lets town take gift from firm; Lower court had barred $8m offer in rezoning."
Posted at 23:16 by Howard Bashman



In news from Washington State: The Seattle Times reports here that "Judicial panel reprimands Bridge for 'callous' actions." And The Seattle Post-Intelligencer reports here that "Commission reprimands court justice; Bobbe Bridge will stay on bench despite drunken driving arrest."
Posted at 16:33 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Crowd Supports 'Ten Commandments' Judge"; here "Judicial Panel Reprimands State Justice"; and here "Abortion Opponent Opposes Gay Marriages."
Posted at 16:30 by Howard Bashman



"Learning History, the Easy Way in Philadelphia": New York Times reporter Linda Greenhouse and her daughter recently visited the National Constitution Center. Access the details here. My write-up of the visit that I and my family made to the NCC last month can be accessed at this link.
Posted at 15:10 by Howard Bashman



In Saturday's newspapers: The New York Times reports here that "Illinois Judge Again Orders Philip Morris to Pay $12 Billion Bond." An article reports that "Lawsuit Opposes Expansion of School for Gay Students." In other news, "Tax Protester Faces Justice Dept." And an article reports that "Libya Admits Culpability in Crash of Pan Am Plane."

The Washington Post reports here that "Scientist Loses Latest Round; 'Person of Interest' In Anthrax Case Fined in Traffic Tiff." In other local news, "Prosecutors Hope to Quote Dead Witness; Testimony on Gang Would Violate Murder Suspect's Rights, Defense Says." And in international news, "Libya Takes Blame for Lockerbie Bombing; Letter About Flight 103 Is Bid to Lift Sanctions."
Posted at 10:10 by Howard Bashman



Idi Amin: Dead. (And this news just in, "Generallissimo Francisco Franco is still dead.")
Posted at 09:57 by Howard Bashman



In news from Alabama: The Montgomery Advertiser reports here that "Moore asks top court to save display" and here that "Atheists plan counter rally; Ten Commandments debate brings opposing factions to Capital City." A related editorial is entitled "Defying order indefensible." And The Times Daily reports here that "Keyes decries moral decay as root of crisis in America."
Posted at 09:42 by Howard Bashman



"4 school districts can't force Pledge. Ban temporary; hearing set Friday." This article appears in today's edition of The Denver Post.
Posted at 09:34 by Howard Bashman



Paid $435,000 for looking at Internet porn: The Minneapolis Star Tribune today reports that "12 Minneapolis librarians settle Internet porn case."
Posted at 09:29 by Howard Bashman



Friday, August 15, 2003
Elsewhere in Friday's newspapers: The Los Angeles Times today contains an article headlined "Defiance Over the Ten Commandments; Alabama's chief justice has 'no intention' of removing monument, despite judge's order." An article reports that "Racial Data Measure May Be a Wild Card in Election; Few candidates have weighed in on Prop. 54, though Davis has voiced opposition. Analysts are divided on how it will affect the recall vote." And in related news, "Absolutely No Bustamante-Connerly Ties -- Anymore."

The Boston Globe reports here that "Conviction of ex-agent upheld; Connolly played role in mob, court rules."

The Washington Times reports here that "Muhammad defense seek evidence turnover." In other news, "Fox, Franken tiff goes national." And Paul Craig Roberts has an op-ed entitled "Turning lawyers into spies."

Finally, USA Today contains an editorial entitled "Hold lawyers accountable in corporate fraud scandals." Newly-installed American Bar Association President Dennis W. Archer responds in an op-ed entitled "Lawyers don't police firms."
Posted at 22:53 by Howard Bashman



"Judge Could Delay Calif. Recall Election": David Kravets of The Associated Press offers this coverage. And Law Professor Rick Hasen's "Election Law" blog provides even more details.
Posted at 22:30 by Howard Bashman



"Judge Blocks Colo. Pledge of Allegiance": The Associated Press provides this report. And you can access the complaint that the ACLU filed in the case at this link.
Posted at 22:28 by Howard Bashman



"Ten Commandments Fight May Head to D.C.": Gina Holland of The Associated Press has this report.
Posted at 19:05 by Howard Bashman



United States of America v. Kenneth Cole: In an opinion issued today, the U.S. District Court for the District of Columbia rejected the argument that the Second Amendment prohibits the federal government from making it a crime for all convicted felons to possess a firearm. Presumably the defendant was not this Kenneth Cole.
Posted at 15:22 by Howard Bashman



U.S. Court of Appeals for the Third Circuit offers blackout-related extension of filing deadlines: Details are available here. Just one more reason I'm proud to be based in the Third Circuit -- it's quite a decent place to practice law. I'm sure that every other federal appellate court would be equally as accommodating, but the Third Circuit has made it as easy as possible for attorneys to avail themselves of the extension.
Posted at 15:12 by Howard Bashman



"Yes, there is a word for lawyers who blog": The Beaumont Enterprise published this article on August 2, 2003. (Thanks to Gary O'Connor for emailing the link.)

The article's statement that "there are no Beaumont blawgers" may have been true on August 2d but is no longer true today.
Posted at 14:38 by Howard Bashman



"US judge defends 'holy rock'": BBC News provides this report. And The Associated Press reports here that "Ala. AG Won't Help Judge in Federal Fight."
Posted at 14:07 by Howard Bashman



"Powerless": The front page headline of this morning's edition of The Detroit Free Press, as shown here (PDF), surely sums up how many in the east and midwest are feeling this morning. The New York Times is reporting as of 6:15 a.m. that power has yet to be restored to most of Manhattan and that subway service may not be restored until this afternoon at the earliest. Update: Additional newspaper front page images can be accessed here courtesy of the Newseum.
Posted at 06:54 by Howard Bashman



This morning's Ten Commandments news: From Alabama, The Montgomery Advertiser reports here that "Moore won't move display" and here that "Moore's decision isn't a surprise." Jan Crawford Greenburg of The Chicago Tribune reports here that "Alabama justice won't obey order; Commandments monument will stay." The Washington Times reports here that "Judge keeps Ten Commandments." The Tuscaloosa News reports here that "Moore defies court order, won't pull Commandments monument." The Times Daily reports here that "Moore will defy order to remove monument." The Associated Press reports here that "Ethics complaint filed over 10 Commandments monument." And The Crimson White reports here that "Moore says he won't remove Ten Commandments monument; Alabama chief justice appealing to Supreme Court; plaintiff files ethics complaint."

Finally for now, in news from Wisconsin, The La Crosse Tribune reports here that "Council's vote extends battle for Commandments."
Posted at 06:51 by Howard Bashman



In Friday's newspapers: The Washington Post reports here that "Ethics Probe Opened on Interior Dept. Lawyer; Environmental Groups Allege Conflicts of Interest." The attorney who is the subject of this ethics probe also happens to be a nominee to serve on the U.S. Court of Appeals for the Ninth Circuit. In other news, "Alabama's Chief Justice Defies Court Order; Moore Refuses to Remove Ten Commandments Monument from State Building." In local news, "Theories Spur Evidence Fight In Sniper Trials." In other local news, "Lentz Judge Seeks Probe Of Banned Evidence; Inadmissible Items Seen By Va. Kidnapping Jury." In business news, "IRS Case Tests Attorney-Client Privilege." An obituary bears the headline "Edward S. Northrop, Md.; Senator And Chief Federal Judge, Dies at 92." And Frank O. Bowman III has an op-ed entitled "When Sentences Don't Make Sense."

OpinionJournal offers an editorial entitled "Out Foxed: A lawsuit against Al Franken isn't very fair and balanced."

Finally, The New York Times contains a letter to the editor that appears under the heading "God and Justice."
Posted at 06:25 by Howard Bashman



Thursday, August 14, 2003
"Plaintiffs Face Hurdles Proving Liability": Adam Liptak of The New York Times is already thinking about the lawsuits today's blackout is likely to trigger. Read his article here.
Posted at 23:24 by Howard Bashman



Available online at law.com: An article reports "9th Circuit Says McKesson Can't Sue Shareholders." In news from the Eleventh Circuit, "Sanctions Against Lawyers in Air Crash Suits Tossed Out." An article reports that "Texas Supremes Deny Republicans' Mandamus Writ." Shannon P. Duffy has an article headlined "3rd Circuit: Extension of 'Batson' Valid Approach; Circuit finds Pa. high court used precedent correctly." From New York comes a report that "EEOC Asks Boies Schiller to Codify Tracks, Pay." And in news from Texas, "Lawyer Life After 'Lawrence'; Gay and lesbian attorneys pleased with the profession's progress when it comes to acceptance -- but prejudice lingers."
Posted at 23:11 by Howard Bashman



Today's FindLaw columnists: Julie Hilden has an essay entitled "Do Americans Have a First Amendment Right to Become 'Human Shields' and to Criticize Their Government? The Case of Faith Fippinger." And D. Mark Jackson has an essay entitled "Why the First Amendment Protects a New England Dairy's Right to Use a Milk Label Proclaiming Its Product To Be Growth-Hormone-Free."
Posted at 22:57 by Howard Bashman



In today's edition of The Los Angeles Times: An article reports that "Davis Has Appointed Cluster of Judges Since Recall Qualified for the Ballot." In somewhat related news, "Court Dates Approach for Challenges to Recall; Strongest suits may be those that say balloting problems could violate the Voting Rights Act. But experts downplay the chances of success." In other news, "Consumer Fights Subpoena Seeking File Sharers' Names." And in local news, "L.A. Strip Club Permit Revoked Over School; City OKd nude venue even as a new campus was being planned across the street."
Posted at 22:52 by Howard Bashman



"Federal court rejects 'Star Trek' star's claim against Matchmaker.com": The Associated Press provides this report.
Posted at 22:49 by Howard Bashman



Alabama Governor Bob Riley issues a statement on Ten Commandments monument controversy: You can access the statement here.
Posted at 19:10 by Howard Bashman



"Ex-FBI Agent's Appeal Rejected in Mob Case": The Associated Press has this report.
Posted at 19:09 by Howard Bashman



Eleventh Circuit affirms dismissal of RICO action brought by foreign nations against "Big Tobacco" alleging schemes to avoid those sovereigns' tax laws: You can access today's ruling of the U.S. Court of Appeals for the Eleventh Circuit at this link.
Posted at 17:12 by Howard Bashman



"Major Blackout Hits U.S., Canada": CBS News has this report. And here's a report entitled "Outage Blacks Out Cities From New York To Detroit; New York, Detroit, Cleveland, Toronto, Hartford Affected; Cause Unclear." Boston and Rochester, NY also are affected. Here in Philadelphia, so far, so good.
Posted at 16:47 by Howard Bashman



U.S. Court of Appeals for the First Circuit affirms criminal conviction and sentence of former FBI agent John J. Connolly, Jr.: You can access today's ruling at this link. Additional background about the case is available here from The Associated Press.
Posted at 16:21 by Howard Bashman



Hear it for yourself: Montgomery, Alabama's NBC affiliate WSFA-12 provides a link here to an audio file containing Chief Justice Roy S. Moore's announcement this afternoon. (Thanks much to the reader who emailed this link to me.) Update: MSNBC offers a video report via this link, although the moderator is a bit confused on her facts, stating that the case involves "a placard" located behind Chief Justice Moore's desk.
Posted at 15:50 by Howard Bashman



Alabama Attorney General Bill Pryor's statement on Chief Justice Roy S. Moore's announcement that Moore will disobey a federal court's order to remove the Ten Commandments monument: You can access Attorney General Pryor's statement here. (Via "Southern Appeal.")
Posted at 15:34 by Howard Bashman



"Ala. justice won't remove 10 Commandments monument": The Associated Press offers this coverage.
Posted at 15:07 by Howard Bashman



"Moore Refuses To Remove Ten Commandments Monument; Chief Justice To Appeal To U.S. Supreme Court": Alabama's nbc13 news provides this report.
Posted at 15:04 by Howard Bashman



Would prosecutors violate Batson by striking jurors of Italian-American origin? Possibly not, this opinion, which the U.S. Court of Appeals for the Third Circuit issued today, suggests.
Posted at 15:03 by Howard Bashman



Alabama Chief Justice Roy S. Moore announces that he will not remove the Ten Commandments monument from the Alabama Judicial Building: This news comes from the Alabama Radio Network. More coverage when it becomes available.
Posted at 14:50 by Howard Bashman



"Justice Moore to Announce Ten Commandments Decision": A live announcement is expected to occur just minutes from now. Stay tuned for complete coverage.
Posted at 14:28 by Howard Bashman



"Don't Use Those Words: Fox News Owns Them": Law Professor Jack M. Balkin has this op-ed today in The Los Angeles Times.
Posted at 14:00 by Howard Bashman



"Bid to Close Peterson Hearing Is Denied": The Associated Press provides this report from Modesto, California.
Posted at 13:51 by Howard Bashman



"Wheelchair users win court ruling; Theaters must offer equal seating": Bob Egelko has this report today in The San Francisco Chronicle.
Posted at 13:48 by Howard Bashman



In news pertaining to the Ninth Circuit: Today The Metropolitan News-Enterprise reports here that "En Banc Review Granted in Habeas Case Involving Testimony by Judge" and here that "Movie Theaters May Not Relegate Wheelchair Patrons to Front."
Posted at 13:46 by Howard Bashman



Senior Ninth Circuit Judge Ferdinand F. Fernandez, dissenting: This ruling would probably be worthy of mention in any event, but the second to last paragraph of Judge Fernandez's dissent removes any doubt:
Again, this creation of an intracircuit split is obscured with a fuliginous cloud made up of the conceit that the attorney here (allegedly unlike the attorneys in Estate of Bishop and Cabrera) is truly a party. It comes as no surprise to me that the legal mind is perfectly capable of reaching a result by declaring a non-party to be a party, just as it can declare a pony to be a small bird. See Regina v. Ojibway, 8 Crim. L.Q. 137 (Oct. 1965). While I am often taken by, sometimes even filled with admiration for, manifestations of scholastic mental agility, I think that agility is frequently misdirected. It is here.
You can access the complete decision that the U.S. Court of Appeals for the Ninth Circuit issued today at this link.
Posted at 13:27 by Howard Bashman



"Ashcroft tour to hit Detroit": So reports today's edition of The Detroit News. And a related article bears the headline "Is a political motive behind Ashcroft tour? Civil rights groups say lawsuit, '04 race prompts his trip."
Posted at 12:53 by Howard Bashman



"Student, school at odds on mascot": This article appears in today's issue of The Cincinnati Enquirer.
Posted at 12:51 by Howard Bashman



Federal jury in Detroit imposes sentence of life imprisonment instead of death penalty: The Associated Press provides this report.
Posted at 12:49 by Howard Bashman



Give it the scholarly treatment: Anyone who found interesting my August 2003 appellate column entitled "Legislature Battles Court Over How Statutes Should Be Construed" (and apparently such people do exist, if all the emails I've been receiving are any indication) should be sure to take a look at the following law review article: Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085 (2002). You can access an abstract of the article here, via the Harvard Law Review's Web site.
Posted at 12:34 by Howard Bashman



Eighth Circuit rules that exhaustion requirements of federal Prison Litigation Reform Act do not apply to person confined under civil commitment order: You can access today's per curiam precedential decision of the U.S. Court of Appeals for the Eighth Circuit at this link.
Posted at 12:18 by Howard Bashman



In news from Altoona, Pennsylvania: The Altoona Mirror reports here that "City to rehang Commandments." Additional details are available in this report from The Associated Press.
Posted at 11:36 by Howard Bashman



Congress's revocation of a statutory grant of largesse is not a taking of a specie of property: See this very interesting decision that the U.S. Court of Federal Claims issued on Monday of this week rejecting a claim by federal government workers that "the Takings Clause was violated by a congressional amendment to the FLSA's statute of limitations, which was applied to them retroactively and denied them their alleged entitlement to overtime compensation."
Posted at 10:36 by Howard Bashman



"Legislature Battles Court Over How Statutes Should Be Construed": My August 2003 appellate column, published this past Monday in The Legal Intelligencer, is now available online here.
Posted at 09:50 by Howard Bashman



FOX News vs. Al Franken: Thanks to FindLaw, you can access the complaint initiating suit here. Apparently it's time for another "Al Franken Decade."
Posted at 09:48 by Howard Bashman



"Pol sues city over gay HS": This article appears today in The New York Daily News.
Posted at 09:44 by Howard Bashman



Decalogue blog: The Philadelphia Inquirer today reports that "Appeals court rejects Ten Commandments challenge; This opens to the way to a possible case before the Supreme Court over the Chesco courthouse plaque." And The Daily Local News of West Chester, Pennsylvania reports today that "Plaque ruling stands for now."

Today's issue of The La Cross Tribune reports here that "La Crosse mayor vetoes monument appeal" and here that "Religious, community leaders sign letter opposing appeal." Also, you can access here the "Veto letter from Mayor Medinger to Common Council."

The Tuscaloosa News today reports here that "Moore's dispute puts Pryor in hot seat." And The Montgomery Advertiser today contains an article headlined "'Monumental' showdown."

The Richmond Times-Dispatch contains an article headlined "U.S. Focus: Church-State Issue; Commandments battles proliferate."

USA Today contains an editorial entitled "Alabama monument mocks Supreme Court's authority." An opposing op-ed by Rev. Rob Schenck is entitled "U.S. answers to higher law."
Posted at 06:54 by Howard Bashman



"Court split, won't revisit prayer case; Kilgore to request intervention from U.S. Supreme Court in VMI case": Today's edition of The Roanoke Times contains this report. And The Richmond Times-Dispatch reports here that "VMI case won't be reheard; 4th Circuit split in prayer vote."
Posted at 06:39 by Howard Bashman



In Thursday's newspapers: A front page article in The Washington Post reports that "Majority Against Blessing Gay Unions; 60% in Poll Oppose Episcopal Decision." Additional poll data can be accessed here. In other news, "Federal Court Upholds Its Ban on VMI Prayers." And an editorial is entitled "Policing Human Rights."

In The New York Times, an obituary bears the headline "Judge Fred I. Parker, Who Served on the Second Circuit, Dies at 65." An article reports that "Court Upholds Alaska Limits on Soft Money in State Races." And Adam Liptak reports that "U.S. May Fine Some Who Shielded Iraq Sites."
Posted at 06:37 by Howard Bashman



"Parker, federal judge, dies at 65": The Associated Press offers this obituary for Second Circuit Judge Fred I. Parker.
Posted at 00:26 by Howard Bashman



Wednesday, August 13, 2003
"My Big Fattening Greek Salad: Are french fries the new Marlboros?" Dahlia Lithwick's latest essay is available here, via Slate.
Posted at 18:46 by Howard Bashman



Even more Ten Commandments news: The La Crosse Tribune reports here that "Mayor vetoes Ten Commandments appeal."

From Alabama comes news that "Rev. Falwell, Keyes Scheduled to Speak at Ten Commandments Rally." An editorial in today's edition of The Mobile Register is entitled "Justice Moore should obey federal court." And a somewhat related editorial in that same newspaper is entitled "A briar patch for Pryor?" The Montgomery Independent reports here that "Senior justice Gorman Houston would replace Roy Moore if he is suspended by State JIC."

Finally for now, The Daily Herald of Everett, Washington reports today that "Council backs monument."
Posted at 18:45 by Howard Bashman



"Court refuses to review ruling striking down VMI prayers": The Associated Press has this report.
Posted at 18:39 by Howard Bashman



"La Crosse will appeal Ten Commandments ruling": Minnesota Public Radio today provides this report.
Posted at 17:51 by Howard Bashman



Stay of Federal Communications Commission media consolidation order sought from U.S. Court of Appeals for the Third Circuit: You can access today's court filings via this link.
Posted at 16:59 by Howard Bashman



"Appeals court affirms soft money limits on political parties": The Associated Press today has this report from Alaska. One of the losing parties is quoted at the end of the article as stating "'The 9th Circuit is not known for its legal abilities,' Ross said. 'They have the highest overturn rate by the Supreme Court of any district.'" To which the Ninth Circuit likely will respond -- "Hey, we are not a district."
Posted at 16:53 by Howard Bashman



"Deportation hearing kept open": The Detroit News today contains this report.
Posted at 16:42 by Howard Bashman



"High court's new rule is out of bounds": Columnist Brian Dickerson has this essay in today's edition of The Detroit Free Press. I previously reported on this subject in a post you can access here.
Posted at 16:39 by Howard Bashman



"Rights groups try to delay recall over punch-card ballots": Bob Egelko has this article in today's issue of The San Francisco Chronicle.
Posted at 16:31 by Howard Bashman



Being on the receiving end of a cow's kick not worth $800,000, trial judge rules: The Herald-Citizen of Cookeville, Tennessee today provides this report. (Via "Obscure Store.")
Posted at 15:44 by Howard Bashman



"Let our judges judge": This editorial appears in today's issue of The Denver Post. (Via "Talk Left.")
Posted at 15:39 by Howard Bashman



"Confirm me, I'm soft on crime: A desperate conservative's latest gambit." Don't miss the current cover story online at Slate, featuring those words superimposed on a photograph of Fifth Circuit nominee Charles W. Pickering, Sr. -- and act now, it could be changed at any time. (Via "Greedy Clerks Board.")
Posted at 15:37 by Howard Bashman



U.S. Court of Appeals for the Fourth Circuit, by an evenly divided vote, denies rehearing en banc in Virginia Military Institute "supper prayer" case: The order entered today states, in pertinent part:
A poll of the Court having been requested on the appellant's petition for rehearing en banc, Judges Widener, Wilkinson, Niemeyer, Luttig, Williams, and Shedd voted in favor thereof. Chief Judge Wilkins, along with Judges Michael, Motz, Traxler, King, and Gregory, voted against rehearing en banc. A majority of the active judges having failed to vote in favor of rehearing en banc, rehearing en banc is also hereby denied.

Judges Widener, Wilkinson, and Niemeyer wrote separate opinions, which are filed herewith, dissenting from the denial of rehearing en banc.
Back on April 28, 2003, in a post you can access here, I provided the following coverage of the panel opinion issued in this case on that date:
Fourth Circuit holds Virginia Military Institute's "supper prayer" violates First Amendment's Establishment Clause: 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. Hmm, next thing you know, VMI will have to admit women.
The original three-judge panel consisted of only one Fourth Circuit judge in regular active service, which made it especially difficult to gauge whether rehearing en banc was or was not likely in this case.
Posted at 15:02 by Howard Bashman



Stadium seating in movie theaters from the perspective of the handicapped: This ruling that a divided Ninth Circuit panel issued today is certainly worth a look. According to the dissent, the ruling creates a circuit split given this earlier ruling of the U.S. Court of Appeals for the Fifth Circuit.
Posted at 14:12 by Howard Bashman



Ninth Circuit holds that McKesson HBOC cannot sue some of its own shareholders for unjust enrichment arising from a merger between McKesson and HBOC: Essentially, McKesson claimed that former HBOC shareholders were the beneficiaries of a windfall triggered by alleged accounting improprieties by HBOC. Today the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of McKesson's claim, reasoning that "because of the importance of the corporate form and the policy justifications underlying the retention of limited liability for shareholders of a public company, McKesson may not maintain a claim for unjust enrichment against the former HBOC shareholders." You can access the complete opinion at this link.
Posted at 13:35 by Howard Bashman



"Davidson County will fight 'In God We Trust' lawsuit": The Associated Press has this report from North Carolina.
Posted at 12:43 by Howard Bashman



Ten Commandments news from Wisconsin: The La Crosse Tribune reports here today that "Council votes to appeal monument decision." And in related news, "Supporters stand behind decision."
Posted at 11:28 by Howard Bashman



Sad news from Vermont: The Burlington Free Press is reporting that "Judge Fred Parker of the 2nd U.S. Circuit Court of Appeals has died." You can access the official Federal Judicial Center biography for Second Circuit Judge Fred I. Parker at this link.
Posted at 11:20 by Howard Bashman



"Judge would be first Latino to sit on U.S. District Court bench": At least in the State of Washington, according to this article from today's issue of The Seattle Post-Intelligencer.
Posted at 10:49 by Howard Bashman



"Many federal judges, nominees have no prior judicial experience, study shows": This article appears in today's issue of The St. Louis Post-Dispatch.
Posted at 06:58 by Howard Bashman



Today's FindLaw columnists: Mark H. Allenbaugh has an essay entitled "The PROTECT Act's Sentencing Provisions, And the Attorney General's Controversial Memo: An Assault Against the Federal Courts." Sherry F. Colb has an essay entitled "John Doe Indictments in New York: An Opportunity to Examine Statutes of Limitations." And George Kanabe has an essay entitled "Why Judges and Juries Should Have Access to Complete Electronic Recordings of Police Interrogations: Following Illinois's Example."
Posted at 06:52 by Howard Bashman



In Wednesday's newspapers: The New York Times reports here that "Bail Is Denied for Pakistani Accused of Aiding Al Qaeda." In sports coverage, Harvey Araton's column today is entitled "Al Davis in Court? Beware, Oakland Taxpayers." One editorial is entitled "Judge Roy Moore's Lawless Battle," while another bears the title "Windfall Publicity for Al Franken's Book." And a letter to the editor appears under the heading "A Nominee's Beliefs."

The Washington Post reports here that "Ashcroft Planning Trip to Defend Patriot Act." In other news, "Report Details GOP Bids For U.S. Aid in Tex. Fray; Justice Department Cites 1 Case of Federal Action." An article reports that "Bryant May Have Conflicting Courts; Colorado Trial Could Start in March." From my hometown comes a report that "Steak Raises Stakes for Kerry in Philly." And in business news, you can access here an article headlined "Not So Firm With Lawyers."

The Christian Science Monitor reports here that "Attorneys face new rules on secrets; Discomfort with rules on confidentiality for corporate wrongdoers persuades the Bar Association to reform." In other news, "Year of reform puts corporations on notice; From courts to the boardroom, conduct of CEOs faces new scrutiny since Enron." Finally for now, an editorial is entitled "Client Confidentiality."
Posted at 06:40 by Howard Bashman



Tuesday, August 12, 2003
"Porn Pawns: The kings of smut escape while the feds cook up small fry like former Dallas cop Garry Ragsdale." This article appears in the August 7, 2003 issue of The Dallas Observer.
Posted at 23:18 by Howard Bashman



"Death Row inmate strikes rare plea deal": The Associated Press has this report from Texas. Final meal averted.
Posted at 23:13 by Howard Bashman



"Dimension Data wins $10 million order from federal courts": Washington Technology this evening reports that "Dimension Data Holdings plc won a five-year, $10 million contract for wide area network support and network management by the Administrative Office of the U.S. Courts, the company announced today."
Posted at 23:11 by Howard Bashman



Available online from law.com: Jason Hoppin reports that "ABA Delegates Take Stands on Race, Military Trials." And an article from Miami reports that "Denying Ties to Bin Laden, Florida Man Fights Deportation."
Posted at 23:06 by Howard Bashman



In recall election-related news: The Associated Press reports here that "Schwarzenegger films would trigger FCC equal time rule" (and ditto for "Diff'rent Strokes," but Father Guido Sarducci on cable supposedly would not trigger the provision). And you can access here an article headlined "ACLU follows recall lawsuit with request for restraining order."
Posted at 23:02 by Howard Bashman



Elsewhere in Tuesday's newspapers: The Los Angeles Times reports here that "Ruling on Religious Land Use Is on Hold." In other news, "Landlords Win Right to Stop Renting; Justices say a property can be taken off the market if residents are annoying. The decision could bring a drop in the number of units." From Glendale comes news that "City files for new trial in police case; Motions allege jury bias and misdeeds, and that it incorrectly calculated judgments. City also says original claims were inappropriately filed." And an article reports that "When Child Dies in Hot Car, Jail Rare; Safety experts say most fatalities occur when an adult forgets and leaves youngster in a vehicle. Police want UC Irvine professor to be charged."

The Washington Times reports here that "Conservative groups align against tax rise in Alabama." In other news, "Gun backers claim momentum among state governments." The Associated Press has a report from Philadelphia that "Voodoo embeds in U.S." John Mallon has an op-ed entitled "Bias and judicial nominees." And William Niskanen has an op-ed entitled "Comparing U.S., EU Constitutions."

Finally, USA Today reports here that "Election may even see 'hanging chads' encore."
Posted at 22:32 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "House Judiciary to Investigate Judges." Gina Holland reports that "Court Urged to Reinstate Online Porn Law." Anne Gearan reports that "ABA Urges Changes in Military Tribunals." And in other news, you can access here an article entitled "Franken Makes Light of Fox Slogan Lawsuit"; here "Racist Fliers in Colo. Related to Bryant"; here "Texas GOP Senators Fine Absent Democrats"; here "Judge Refuses Bail in N.Y. Terror Case"; here "Sex Predator Out of California Hospital"; and here "Government Contractor Settles in Lawsuit."
Posted at 22:15 by Howard Bashman



Ten Commandments update: The Associated Press reports here that "Supreme Court Chief Justice Roy Moore will announce Thursday whether he plans to obey a federal court order and remove the Ten Commandments monument from the rotunda of the Alabama Judicial Building." And The Hill reports here on "New front in religious battle; Commandments to be protected in spending measure."
Posted at 20:37 by Howard Bashman



Law Professor Jack Bogdanski's blog has a new address: You can now access "Jack Bog's Blog" here. As they say in the biz, please adjust your links accordingly.
Posted at 20:18 by Howard Bashman



"Trial Ordered Over Ga. Voter Requirements": The Associated Press reports here on a ruling that the U.S. Court of Appeals for the Eleventh Circuit issued yesterday.
Posted at 16:47 by Howard Bashman



Fargo Ten Commandments: No, this isn't a blog post that tries to work in as many movie titles as possible. Rather, I'm writing to note that Lileks today offers a photograph of the Ten Commandments monument located on public land across from the Fargo, North Dakota City Hall. (Thanks to my colleague from down the hall for the link.)

Lileks writes that "They'll be gone soon, I'm sure, and that will be a powerful message to all those Fargoans who've been tossing atheists on the bonfire every Sunday morning." Indeed, the monument has been the subject of controversy, as news reports here and here reveal.
Posted at 15:57 by Howard Bashman



"Major power outage hits Center City": Such is the news this afternoon here in Philadelphia, Pennsylvania. Fortunately for me, I'm located uptown from where the problem is. The U.S. Court of Appeals for the Third Circuit remains open for business, although the federal courthouse building has been affected somewhat by the outage.
Posted at 14:52 by Howard Bashman



"It's just not right to play the religion card in politics": Mary C. Curtis yesterday had this op-ed.
Posted at 14:48 by Howard Bashman



Decalogue blog: From Alabama, The AP reports here that "Pryor asked to repeal titles." And today's issue of The Montgomery Advertiser contains an editorial entitled "Did Moore plan confrontation?"

From Wisconsin, The La Crosse Tribune reports here that "Eagles will fight to keep the monument in place"; here that "To appeal or not to appeal, that will be the question"; and here that "Opinions come from throughout nation."

Finally for now, The Northeast Georgian reports here that "Commandment suit drops sheriff, Tench."
Posted at 14:47 by Howard Bashman



"Lawyers Allowed to Blow Whistle on CEOs": Anne Gearan of The Associated Press has this report.
Posted at 14:29 by Howard Bashman



En banc Ninth Circuit to consider lawfulness of sockeye salmon enhancement project in Alaska: Today's a big day for Alaska in the U.S. Court of Appeals for the Ninth Circuit. Not only has that federal appellate court reinstated a significant provision of Alaska's campaign finance law (see below), but today the Ninth Circuit also granted rehearing en banc in a case that presents the question whether the United States Fish and Wildlife Service violated the Wilderness Act when it decided to allow the Tustumena Lake salmon enhancement project to go forward in the Kenai National Wildlife Refuge.

Back on January 13, 2003, a divided three-judge panel upheld the Service's decision over a spirited dissent by Senior Circuit Judge Betty B. Fletcher, in which she wrote that "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." You can access the original three-judge panel's ruling here. And you can access my previous coverage of that ruling here.
Posted at 14:16 by Howard Bashman



"Thus, the only disputed issue in this litigation was the cause of the 3.5 million oyster deaths, and the jury was ultimately presented with a murder mystery worthy of Hercule Poirot himself: who, or what, killed the oysters?" Circuit Judge Diarmuid F. O'Scannlain, on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, issued this interesting decision today in a case arising out of an environmental disaster that occurred off of the Oregon coast in 1999.
Posted at 13:59 by Howard Bashman



In challenge to Alaska's campaign finance law, Ninth Circuit permits $5,000 limit on individual cash contributions to political parties but strikes down $5,000 limit on value of professional services contributed to such parties: You can access today's long-awaited ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 13:37 by Howard Bashman



"Justice Dept. Cleared in Texas Feud": The Associated Press has this report.
Posted at 13:10 by Howard Bashman



Access online yesterday's ruling of the U.S. District Court for the District of Massachusetts refusing to declare the federal death penalty unconstitutional: It is available here (127-page PDF document). Thanks again to the reader who forwarded this along, and to the kind folks at SCOTUSblog for hosting the file. You can access Adam Liptak's report on the ruling, from today's issue of The New York Times, at this link.
Posted at 11:22 by Howard Bashman



"US judge rejects Sampson's challenge; Upholds death penalty law in the murder suspect's case": This article appears today in The Boston Globe. The ruling is not yet available online via the Web site of the U.S. District Court for the District of Massachusetts. If anyone has an electronic copy of the ruling, please email it to me. Immediate update: In the first few minutes after this post appeared, someone with a copy of the ruling has kindly sent it along to me. Thanks much to that reader!
Posted at 10:56 by Howard Bashman



In news from Detroit: The Detroit Free Press reports here that "A federal jury convicted a Detroit man Monday of first-degree murder in a case that could result in the first federal death sentence in eastern Michigan in 61 years." And The Detroit News reports here that "Death penalty case before jury; Detroiter found guilty of federal crime in drug-related murder and sale of cocaine."

In other news from Michigan, The Free Press today reports that "Church in jeopardy of more suits; Bill would provide no time limit for alleged abuse victims to act." The Detroit News, meanwhile, reports that "Domestic abuse laws may toughen; Mich. Supreme Court might let prosecutors introduce evidence of past violence at trial."

Finally, columnist Mike Wendland has an essay entitled "Internet services jumping on blogging bandwagon."
Posted at 10:48 by Howard Bashman



Advocating a Risen-able approach to judicial filibusters: Yesterday The New Republic posted online this essay by Clay Risen in which he argues that it's best for Democrats in the U.S. Senate to allow a vote on Eleventh Circuit nominee William H. Pryor, Jr. While I'm no fan of filibusters that prevent an up or down vote on a judicial nomination, I seriously doubt that any of the Democratic leaders in the Senate will find Risen's logic to be compelling. (Link to essay via "Southern Appeal."
Posted at 10:38 by Howard Bashman



"Archer leads U.S. bar association; Former Detroit mayor is first black to head 126-year-old national lawyers group": The Detroit News yesterday had this report.
Posted at 10:12 by Howard Bashman



"Cop killer will remain behind bars; After the widow of victim sues, judge stops parole of man set to be freed today." This article appears in today's issue of The Indianapolis Star.
Posted at 10:04 by Howard Bashman



"Kids lose appeal in mother's '64 death; Court rules justice in case not denied": The Florida Times-Union today contains this report. You can access yesterday's ruling of the U.S. Court of Appeals for the Eleventh Circuit at this link.
Posted at 10:01 by Howard Bashman



"Gay groups criticize billboard firm for refusing ads": This article appears today in The Atlanta Journal-Constitution.
Posted at 09:58 by Howard Bashman



"Pataki ally: Schumer has anti-Catholic bias." The Associated Press has this report from Albany, New York.
Posted at 09:54 by Howard Bashman



"Ninth Circuit Nominee Narrowly Wins ABA Panel Approval": The Metropolitan News-Enterprise last Friday provided this report regarding Ninth Circuit nominee William Gerry Myers III. You can access all of the American Bar Association's recent ratings of federal judicial nominees at this link.
Posted at 09:51 by Howard Bashman



"ABA opens door for lawyers to tell; Rules favor stopping corporate fraud over client confidentiality": This report appears in today's edition of The San Francisco Chronicle.
Posted at 09:46 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "Lawyers Eye Military Tribunal Rules." In other news, you can access here an article entitled "Microsoft to Appeal $520M Patent Ruling"; here "Jury Selection Begins in Polygamy Case"; and here "Actor Sizemore Doesn't Testify in Trial."
Posted at 09:40 by Howard Bashman



Available online at Town Hall: Thomas Sowell has an essay entitled "Easy justice." And Phyllis Schlafly asks "Can globalism amend our Constitution?"
Posted at 07:03 by Howard Bashman



Today's FindLaw columnist: Joanna Grossman has an essay entitled "Whose Surname Should a Child Have? A New York Court's Ruling Reinforces Sexist Traditions."
Posted at 07:00 by Howard Bashman



In Tuesday's newspapers: In addition to containing the items noted in the blog post immediately below this one, Tuesday's edition of The New York Times reports here that "Jury Acquits Pilot Who Questioned Liability for Income Tax." (The blog "Sophoristically Speaking" has more about this news story here.) An article reports that "Bar Association Eases Code on Client Secrets." In other news, "Sex-Discrimination Case Returns to Haunt a New York Law Firm." From Detroit comes news that "Automakers Drop Suits Over Clean-Air Regulation." In local news, "Bank Sues to Force Insurers to Declare Tower 9/11 Loss." In other local news, "Lawyers in Blackface Case Seek Punitive Damages From Giuliani." In entertainment-related news, "To Fox, 'Fair and Balanced' Doesn't Describe Al Franken." And letters to the editor appear under the heading "DNA Prosecutions."

The Washington Post reports here that "Fairfax Opposes Malvo Bid For Funds; Prosecution Getting Some Federal Aid." An article reports that "Calif. Recall Poses Logistical Challenge; Multiple Ballots May Confuse Voters." In local news, "Kidnap Case Attorneys Say U.S. Possessed Evidence" and "Releasing Restaurant Receipt Not an Intrusion, Judge Rules." And in technology-related news, "Jury Finds Microsoft Infringed Patent" and "Ruling Prompts EBay To Revise Earnings."

In The Christian Science Monitor, you can access here an article headlined "In Brooklyn, fixing a 'corrupt' court system; Series of judicial-bribery scandals may lead to changes in way judges are selected."

Finally for now, OpinionJournal contains an op-ed by Brendan Miniter entitled "Another Plane? Was Moussaoui the 20th hijacker--or the 25th?"
Posted at 06:32 by Howard Bashman



In Tuesday's edition of The New York Times: Adam Liptak reports here that "U.S. Appellate Judges in Cincinnati Spar in Public" and here that "Signs Grow of Innocent People Being Executed, Judge Says." An article reports that "Deputy Attorney General Latest Departure From Justice Dept." In business news, "Jury Rules Against Microsoft in Patent Case." And an editorial is entitled "Justice Kennedy Speaks Out."
Posted at 00:12 by Howard Bashman



Monday, August 11, 2003
Available online at law.com: Jason Hoppin reports that "ABA Delegates OK Changes in Confidentiality." In somewhat related news, "Defense Offensive: ABA proposal challenges policies for military tribunals." An article reports that "Justice Post Leaves Deputy AG 'Drained'; Thompson's resignation takes effect at the end of August." From New York comes news that "EEOC Says Boies' Firm Discriminated Against Women." Shannon P. Duffy reports that "South Carolina High Court Hands Down Major Identity Theft Decision." In other news, "Morgan Lewis Tries to Fend Off Brobeck Fight."

From the Web site of Legal Times (free registration required), Tony Mauro has an article headlined "Stating Their Case: Lawyers with hopes of on appellate career are increasingly taking jobs as state solicitors." You can access here an article headlined "Advice and Dissent: Bush's top lawyers often don't see eye to eye on the most pressing legal issues of the day." Law Professor Jonathan Turley has an essay entitled ". . . 9, 10, 11 . . . 17, 18, 19: One justice wields too much power on today's Supreme Court. It's time to make the top bench much bigger." And Law Professor Stephen Lubet has an essay entitled "Who's the Real Winner? Elections for judges may be here to stay, but crass campaign promises must stop."

Finally, Justice William W. Bedsworth's latest column -- which I'm happy to say is freely available with no need for registration -- is entitled "¡Ay Caramba, Taco Bell!"
Posted at 23:45 by Howard Bashman



Tonight's music selection: The acoustic version of "Counting Blue Cars," by Dishwalla (Real Player required).
Posted at 23:26 by Howard Bashman



Elsewhere in Monday's newspapers: The Washington Times reports here that "Judges' rulings gladden defense" in the DC-area sniper cases. And Nat Hentoff has an op-ed entitled "Boasting about a poor record."

USA Today reports here that "Aging inmates present prison crisis." And an op-ed by Ross K. Baker is entitled "Conservatives wrongly seek 'government by tantrum.'"

The Los Angeles Times reports here that "Santa Cruz Clinic Leads Medical Marijuana Charge; With key local backing, a self-help group aims to make history in a rights lawsuit against the U.S." An article reports that "Officials Warn of Turmoil on Election Night; The list of candidates gets longer and still has not been set. Worries arise about whether balloting equipment will be up to the test." In news from Oregon, "Scorned Ex-Convict Is Forced to Camp Out; Bruce Scott Erbs is a schizophrenic, arsonist and sexual predator. He lives in a tent behind the county jail because no shelter will take him." In local news, "Penalty Phase for Murderer Begins Today; Defense faces a difficult job in convincing a Ventura County jury to spare the killer-rapist." Law Professor Jonathan Turley has an op-ed entitled "Under Ashcroft, Justice Is Blind and Handcuffed; His 'blacklist' aims at judges and prosecutors who exercise discretion on sentences." An essay is entitled "Juror No. K2695 reports for duty." And in letters to the editor, "John Ashcroft Sets His Sights on Sin" and "Government Denial of Marijuana's Benefits."
Posted at 22:39 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports here that "ABA Board OKs Changes in Ethics Rules." In other news, you can access here an article entitled "EEOC Finds Sex Discrimination at Law Firm"; here "Ashcroft Plans Tour to Tout Patriot Act"; here "Judge: Jurors Not to Hear About Cheney"; here "Marine to Fight Possible Court-Martial"; and here "Scott Peterson's Team to Examine Remains."
Posted at 22:33 by Howard Bashman



Supreme Court of Texas issues amended order in Governor's mandamus action against Democratic State Senators: You can access the amended order at this link.
Posted at 22:09 by Howard Bashman



Commentary available online at FindLaw: Today Jonna M. Spilbor has an essay entitled "What If Kobe Bryant Has Been Falsely Accused? Why the Law of Acquaintance and Date Rape Should Seriously Penalize False Reports." And this past Friday, Vikram David Amar had an essay entitled "Governor Davis's Claim to Run as His Own Successor Is Meritless, But the Fear of a 'Fringe' Winner Is Serious: How the Risk Can Be Eliminated in the Future."
Posted at 17:34 by Howard Bashman



"Texas Supreme Court Rules Against Republicans": The Associated Press in this article confirms my earlier report.
Posted at 17:30 by Howard Bashman



"Kaczynski asks court to return his bomb materials": The San Francisco Chronicle today contains this report. And links to several of the court filings can be accessed here.
Posted at 16:45 by Howard Bashman



Fancy vanilla: Today The Christian Science Monitor contains an article headlined "Vanilla sky high: A plain old bean carries a rather gaudy price tag. The result: a downgrade in flavor for Americans not willing to pay." Meanwhile, soft drink aficionados already know that Pepsi Vanilla had its roll-out along the east coast this past weekend. I sampled a bottle with lunch and am pleased to report that Vanilla Coke remains my favorite.
Posted at 15:53 by Howard Bashman



"ABA Plans to Examine Long Prison Terms": The Associated Press has this report.
Posted at 15:47 by Howard Bashman



Supreme Court of Texas has denied request for mandamus in action filed by Gov. Rick Perry and Lt. Gov. David Dewhurst to order eleven state senators to return to Austin from Albuquerque: So I am reliably advised. You can access a copy of the petition at this link. The order denying the petition is not yet available online.
Posted at 15:44 by Howard Bashman



What a difference a day makes: Back on January 7, 2003 a divided panel of the U.S. Court of Appeals for the Fourth Circuit ruled 2-1 that a federal district court erred in dismissing a habeas corpus action filed by a prisoner sentenced to death because equitable tolling excused the prisoner's filing of his habeas petition one day after the applicable deadline. My write-up of the panel's ruling can be accessed here.

On February 13, 2003, the Fourth Circuit granted rehearing en banc. Today, by a vote of 7-4, the en banc Fourth Circuit ruled, in an opinion you can access here, that equitable tolling was unavailable and thus the federal district court properly dismissed the prisoner's habeas petition because it was filed one day late.
Posted at 15:07 by Howard Bashman



"Unabomber Seeks Return of Papers, Bomb": The Associated Press has this report.
Posted at 14:33 by Howard Bashman



Life and times on the Ninth Circuit: The video feed from this past Saturday's episode of C-SPAN's fine program "America and the Courts" is not yet available online, but I've been able to find an audio feed and a transcript of the May 2003 discussion between Ninth Circuit Judges Stephen Reinhardt and Alex Kozinski about life on the Ninth Circuit.
Posted at 14:17 by Howard Bashman



Ninth Circuit affirms dismissal of psychiatrist's claims for defamation, fraud, and intentional infliction of emotional distress against attorney Geoffrey Fieger: You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 13:33 by Howard Bashman



"Seeking to end DNA-case time limits": This article appears today in The Philadelphia Inquirer.
Posted at 13:32 by Howard Bashman



The San Francisco Chronicle is reporting: Today's edition contains an article headlined "Racial initiative ignites medical worries; Researchers fear Prop. 54 will hinder collection of data." And yesterday Bob Egelko reported here that "Federal lawyer likens pot law to civil rights; Segregationists tried to 'cherry-pick' the rules."
Posted at 13:30 by Howard Bashman



"Ruling allows gun dealers to dodge bullets": Columnist Brian Dickerson has this essay in today's edition of The Detroit Free Press.
Posted at 13:26 by Howard Bashman



"Michigan ballot drive faces tough fight; Court ruling, slim support, funds hamper affirmative action foes": This article appears in The Detroit News today.
Posted at 13:24 by Howard Bashman



"Beware the Straight Backlash: Queer Eye takes a step forward, but the conflict over gay marriage could get ugly." Andrew Sullivan had this essay in the August 11, 2003 issue of Time magazine.
Posted at 13:23 by Howard Bashman



"Pickering a Fight: Republicans celebrate a judge who's easy on black drug offenders." Emily Bazelon has this essay just posted online at Slate. (The essay currently misstates the federal appellate court to which Charles W. Pickering, Sr. has been nominated, but I'm sure that will be corrected in short order.)
Posted at 12:24 by Howard Bashman



"Harry Potter and the Magic Campaign: A book proposal." Allison Hayward today has this essay (including the always appropriate gratuitous reference to the "Election Law" blog) at National Review Online.
Posted at 12:13 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Baton Rouge Desegregation Case Nears End" and here an article entitled "U.S. Fines Woman for Being 'Human Shield.'"
Posted at 12:01 by Howard Bashman



"Cuba watchers will keep close eye on trial of 6 in boat theft": This article appears in today's edition of The Orlando Sentinel.
Posted at 10:19 by Howard Bashman



Commentary available from Town Hall: Robert Novak today has an essay entitled "Religious code words." Kathleen Parker writes that "Naming rape victims may liberate the rapist." And William F. Buckley, Jr. has an essay entitled "Other things about marriage."
Posted at 09:13 by Howard Bashman



Available online from The National Law Journal: You can access here an article headlined "Food product ads under fire; A beef promotion loses in 8th Circuit." Marcia Coyle reports that "Experts see hurdles for suits over Patriot Act; First two actions likely aren't the last." In other news, "Puerto Rican prosecutors weigh retrial; Acquittals ended a fight over the death penalty." An article reports that "Big Tobacco is on a winning streak; Lawyers debate whether recent wins are a trend." And you can access here an article headlined "Paying to play; Industry spreads subpoenas and fear over music copying."

In commentary, John D. Hutson has an essay entitled "Don't Ask, Don't Tell: Retire a bad military policy." Tyler M. Paetkau and Ronald J. Cooke have an essay entitled "'Intel' Revisited: Decision is not so dire." And Stephen W. Grafman has an essay entitled "'Perp Walk': End an ignoble spectacle."
Posted at 08:53 by Howard Bashman



In Monday's newspapers: The Christian Science Monitor reports here that "Texas duel highlights separation of powers; State Supreme Court is asking for legal briefs Monday on whether runaway Democrats can be forced back to the state."

The Washington Post reports here that "Texas Democrats Solicit Bush's Help in Redistricting Dispute; White House Says It's Staying Out of Fight." You can access here an article headlined "Jolted Over Electronic Voting; Report's Security Warning Shakes Some States' Trust." And an editorial about the Ten Commandments monument in the Alabama Judicial Building is entitled "No Place for Religion."

Today's edition of The New York Times, in addition to containing the items I noted here last night, reports that "Hispanic Legal Fund Struggles to Survive." In other news, "Acquitted Man Says Virus Put Pornography on Computer." An article reports that "The Bandwagon to Fight Spam Hits a Bump." In other technology-related news, "Internet Providers Question Subpoenas to Stop File Swapping." An op-ed by Sparrow (see for yourself!) is entitled "Spam I Am." And a letter to the editor appears under the heading "Race and Environment."
Posted at 08:28 by Howard Bashman



"Poll: School Affirmative Action Improved." Anne Gearan of The Associated Press reports here that "Most Americans agree that in 25 years, colleges and universities should no longer need to look at an applicant's race to make sure there is racial and ethnic diversity on campus, a new poll finds."
Posted at 06:29 by Howard Bashman



Sunday, August 10, 2003
A quick look ahead to Monday's edition of The New York Times: An article reports that "Lawyers Pressed to Give Up Ground on Client Secrets." A related editorial is entitled "Corporate Scandals and the A.B.A." An article reports that "A Copy of the Bill of Rights Has Resurfaced, but Who Owns It?" Finally for now, U.S. Senator Rick Santorum (R-PA) has a letter to the editor that appears under the heading "Judges and Beliefs."
Posted at 23:52 by Howard Bashman



Elsewhere in Sunday's newspapers: In The Washington Times, Frank J. Murray reports that "Supreme Court justice urges shorter sentences." And an op-ed by Richard Lessner is entitled "Judicial tyranny."

The Los Angeles Times reports here that "Feinstein Stays Off Ballot Without Backing Any Democrat." Today's edition of the Sunday Magazine contains an article headlined "'Kids Don't Lie': Faith in This Assumption Led to Dozens of Unjust Molestation Convictions in Bakersfield. Today One Man Remains in Prison Even After Four of His Original Accusers Said He Never Touched Them." In business news, "Ruling Casts Doubt on Pension Change; Judge's finding of age discrimination could make it tough for firms to switch from traditional to cash-balance plans." An article reports that "Statue Plan Recalls '68 Olympic Tumult; A San Jose State graduate is leading an effort to honor the two black athletes who raised their fists by erecting a memorial at their alma mater." Jim Sleeper's review of two books appears under the heading "Courting diversity: two warnings ignored." And in news from The Associated Press, "A Boy, a Judge and a Bitter Custody Case"; "Idaho's Grass-Roots Resist the Patriot Act"; and "Hamlet's Police Want the Right to Bear Arms."

The Boston Globe is currently off-line and thus won't be featured in this news recap.
Posted at 23:17 by Howard Bashman



Pledge with a push: Back on Tuesday, The Denver Post reported here that "Schools ready policy for Pledge law; Edict goes into effect Wednesday." Also on Tuesday, The Fort Collins Coloradoan reported here that "Daily pledge required: Students must vow allegiance starting Wednesday. Requirement faces divided audience." On Wednesday, The Denver Post contained an article headlined "Pledge with a push; Opinion divided on new law mandating pledge in schools." On Thursday, The Rocky Mountain News reported here that "Pledge of Allegiance law takes effect; Year-round students first to observe new rule on loyalty oath." On Friday, Denver Post columnist Reggie Rivers had an essay entitled "Freedom to do nothing must be preserved." And today's edition of The Denver Post contains an editorial entitled "Can we compel patriotism?"

Readers of "How Appealing" likely will recall that last month the Philadelphia-based U.S. District Court for the Eastern District of Pennsylvania, in a ruling you can access here, struck down as unconstitutional a quite similar Pennsylvania law.
Posted at 23:15 by Howard Bashman



"Judges see sentencing discretion on a decline; Some critics have questioned what they see as encroachment by the legislative and executive branch on the federal judiciary's independence." This report appears in today's issue of The Roanoke Times.
Posted at 23:01 by Howard Bashman



"Gays Force The Issue: Republicans and Democrats are discovering they can't avoid homosexual politics. The question is, where are the votes?" The August 18, 2003 issue of U.S. News and World Report will contain this article.
Posted at 22:56 by Howard Bashman



And in other news from The San Francisco Chronicle: Today's edition contains an article here headlined "How killers in state stay untouchable; Mexican court scraps extradition treaty -- frustrated California D.A.s won't cut deals" and here headlined "Medical pot patients flock to 'Oaksterdam.'"
Posted at 22:49 by Howard Bashman



U.S. Supreme Court Justice Anthony M. Kennedy calls for an end to mandatory-minimum criminal sentences: In today's edition of The San Francisco Chronicle, Bob Egelko reports that "High court justice crusades for mercy; He calls sentences too severe, too long." Pete Williams of NBC News has a report entitled "Kennedy: End minimum sentences; Supreme Court justice says they take discretion from judges, forestall mercy." And Reuters reports here that "Justice Kennedy Attacks U.S. Sentencing Mandates." I hope that the text of Justice Kennedy's speech will be available online here soon.
Posted at 22:47 by Howard Bashman



"Gays' wins met by line in the sand -- Foes vow to thwart ultimate goal: Same-sex marriages." This report appears in today's issue of The Philadelphia Inquirer.
Posted at 22:32 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "Bush Lawyer Blasts State Marijuana Laws." And in other news, you can access here an article entitled "Anti-War Reservist Fights Court-Martial" and here an article entitled "California Officials Face Daunting Ballot."
Posted at 22:26 by Howard Bashman



"Atheist leader urges fight for separation": Today's issue of The Birmingham News contains this report.
Posted at 16:17 by Howard Bashman



"Law firm scolded for ads; Indiana Supreme Court claims Keller and Keller misled public": The Associated Press yesterday had this report. And you can access here coverage of and a link to the ruling from "The Indiana Law Blog."
Posted at 16:09 by Howard Bashman



"Death row inmate banks on new British citizenship; Ohioan convicted of killing girl, 2, in fire": This article appears today in The Toledo Blade.
Posted at 16:03 by Howard Bashman



"One man's lonely fight to bear arms; Weapons maker embraces jail to redefine Second Amendment": The Toledo Blade today contains this report.
Posted at 15:55 by Howard Bashman



"Tablets now on private property; Activists move Commandments": The Associated Press has this report from somewhere other than Alabama.
Posted at 10:56 by Howard Bashman



In Sunday's newspapers: In The New York Times, you can access here an article headlined "A Wild Card, and It Isn't Schwarzenegger." An article in the Week in Review section addresses "Why America Has Gay Marriage Jitters." You can access here an article headlined "Canada's Push to Legalize Gay Marriages Draws Bishops' Ire"; here Frank Rich has an essay entitled "And Now, the Queer Eye for Straight Marriage"; and here is a Style section essay entitled "Queer Guy With a Slob's Eye." In other news, "Army Begins Burning of Chemical Weapons in Alabama Town." In business news, "Wall Street's Legal Woes Aren't Over Just Yet." An article reports that "Colorful Ex-Mayor Is Missing His Own Comeback." From the Magazine section, "Has Stanley Williams Left the Gang?" and "Fight Club." And an editorial is entitled "Blacklisting Judges."

The Washington Post reports here that "Battle Over Damage Awards Takes a More Partisan Turn; Trial Lawyers -- Key Democratic Donors -- Say They're Targets." An article reports that "Deputy Attorney General to Leave Justice Department." In other news, "Public Policy Targeting Obesity." In election-related news, "Campaign Finance Plan Ahead; Bill Would Increase Public Funding, Limits for Primaries." William Saletan has an essay entitled "Who Else Need Not Apply If Religion Comes Into It?" Rich Lowry has an essay entitled "In the Culture War: The President Keeps His Distance." And letters to the editor appear under the headings "Partisan Excess" and "Clearing Judge Murphy's Name."

Finally for now, today OpinionJournal has posted online an editorial entitled "The Color of California: Voters have another chance to strike a blow against discrimination" and an op-ed by Melik Kaylan entitled "The Way We Live Now -- 'Sodomy is an abomination before God': These days, it almost sounds silly."
Posted at 08:45 by Howard Bashman



Saturday, August 09, 2003
To whom does the Lamborghini now belong? Tonight's installment of C-SPAN's fine program "America and the Courts" is described this way on C-SPAN's Web site:
From May, two members of the U.S. Court of Appeals for the Ninth Circuit, Judges Alex Kozinski, a Reagan appointee, and Stephen Reinhardt, a Carter appointee, talk about life on the federal bench in a town hall in Los Angeles.
I'm wondering whether they discussed Judge Kozinski's dissenting opinion from January in which he feared (see footnote two) that Judge Reinhardt might try to wrongfully procure ownership of Judge Kozinski’s Lamborghini. Probably not. If, like me, you missed the telecast of this program earlier this evening, you'll be able to watch it online via this link beginning sometime early next week.
Posted at 23:53 by Howard Bashman



Elsewhere in Saturday's newspapers: The Los Angeles Times reports here that "Judge to Strike Critical Comments About Unocal." In other local news, "Jury Rejects Woman's Sexual-Assault Suit Against Rodman" and "Davis' Convoy Clocked at 94 MPH." A newsbrief reports that "Federal Judge Blocks RIAA Subpoenas." An article reports that "Pakistani Man Aided Al Qaeda, U.S. Charges; Detained since March, the suspect is accused of trying to help an agent enter the U.S., possibly in a plot to launch a chemical attack." In other news, "No End to Murder's Grief; A year has passed since Kevin Blanchard died -- yet another young black man gunned down in Compton. Family and friends struggle to cope." You can access here an article headlined "In Defending Liberty, They Secure Freedom; More than 200 immigrant sailors from 51 countries become American citizens. Their courage expedited ceremony." In other immigration-related news, "Man Is Charged in Vietnam Jail Torture; Garden Grove resident, a former trusty in camp near Hanoi after the war, is held. He can't be prosecuted in the U.S." And David Beck-Brown has an op-ed entitled "Tough on Crime? Our Wallets Take the Beating."

The Washington Times reports here that "Race measure shares California ballot with governor recall." And in other news, "Mom aids in hunting terrorists over Web."

Finally for now, The Boston Globe reports here that "Fla. sees accord on malpractice award limits."
Posted at 23:30 by Howard Bashman



"Justice Kennedy: Shorten Fed Prison Terms." Anne Gearan of The Associated Press tonight has this report.
Posted at 23:25 by Howard Bashman



Tonight's music selection: "Show me how to live," by Audioslave (Windows Media Player required).
Posted at 23:12 by Howard Bashman



"Library denies censor charges": The Augusta Chronicle today reports here on an oral argument that the U.S. Court of Appeals for the Eleventh Circuit heard yesterday. And The Associated Press reports here that "Editor of gay newspaper appeals ruling on censorship."
Posted at 23:11 by Howard Bashman



You've heard of the "twinkie defense"; now meet the "burrito defense": The Associated Press reports here from Nebraska that "Judge buys beer burrito defense."
Posted at 22:58 by Howard Bashman



"2 white librarians say bias continues": This article appears today in The Atlanta Journal-Constitution.
Posted at 22:55 by Howard Bashman



"Suits over gun harm erased in Michigan; Detroit, county cannot pursue compensation": Today's edition of The Detroit Free Press contains this report. And you can access Thursday's ruling of the Michigan Court of Appeals at this link.
Posted at 22:54 by Howard Bashman



"Courts Weighing Rights of States to Curb Aid for Religion Majors": Sunday's edition of The New York Times contains this article by Adam Liptak. Liptak's dispatch is dated August 5th, the day before this somewhat related article (which I noted here on Wednesday, August 6th) appeared in The Traverse City Record-Eagle.
Posted at 21:18 by Howard Bashman



Today's Federalist Society recap from the American Bar Association's annual convention: It is available here.
Posted at 21:05 by Howard Bashman



"Justice Ginsburg Marks 10 Years on Bench": Anne Gearan of The Associated Press has this report. The "ten years" refers to Justice Ginsburg's service on the Supreme Court of the United States. Justice Ginsburg joined the D.C. Circuit in June of 1980.
Posted at 21:01 by Howard Bashman



On today's agenda: Having fun here. Recap: Fun was indeed had.
Posted at 07:13 by Howard Bashman



In Saturday's newspapers: The New York Times reports here that "White House Called Target of Plane Plot." An article reports that "Pakistani in Brooklyn Is Charged With Supporting Terrorism." In news from the State of Washington, "The Whisper That Carried Beyond Pasco." An article reports that "Ruling Gives Army Right to Incinerate Chemical Weapons." And Bruce Kluger has an op-ed entitled "What a Tangled Web We Weave."

The Washington Post reports here that "FBI Intercepts Moussaoui's Mail; Defendant Tried to Message 'Shoe Bomber,' Agents Allege." In other news, "Pakistani Detainee Charged With Supporting Terrorists." An article reports that "Va. Engineer Faces Deportation; Family Fearful After Arrest in Wake of Asylum Denial." In business news, "Ruling Dims Outlook for Coal-Fired Power Firms; Aging Plants Face Big Expense To Comply With Clean Air Act." And an editorial is entitled "Reform in Virginia."
Posted at 07:09 by Howard Bashman



Friday, August 08, 2003
"Measuring High Court's Momentum": Marcia Coyle of The National Law Journal has this report.
Posted at 22:53 by Howard Bashman



Elsewhere in Friday's newspapers: In The Los Angeles Times, David G. Savage reports that "Ashcroft Objects to Lenient Jurists; When judges impose terms shorter than called for under federal guidelines, the attorney general wants to know." In other news, "U.S. Indicts Porn Sellers, Vowing Extensive Attack; Charges against a Valley video company and two executives signal that fighting obscenity has become a high priority for Atty. Gen. Ashcroft." In recall election-related news, you can access here an article headlined "Court Allows Recall to Proceed; Schwarzenegger Gains Support; The field changes as Issa drops out, Garamendi enters and Ueberroth weighs a run. Feinstein leaves the door ajar, and Davis' backers waver"; here "State Justices May Not Have Final Word; Several cases challenging the recall already have been filed in federal court, and lawsuits after the election are a possibility"; and here "Feinstein Stands By Decision to Stay Out of Race." You can access here an article headlined "Not a Terrorist, but Still Doing 9/11 Time; Ansar Mahmood was swept up in a federal dragnet. Now a felon, he faces deportation." A newsbrief reports that "ACLU Sues City Over Lesbian March Rules." An editorial is entitled "Barring the Book Snoops." And letters to the editor appear under the heading "Looking at Jury Duty in a Positive Light."

USA Today reports here that "Gun-control debate gets muzzled; Bill protecting firearms industry advances in Congress as electoral realities, terrorist attacks change climate." An article reports that "Whites, blacks see Bryant case differently; African-Americans much more likely to think charge is false." And Al Neuharth has an op-ed in which he addresses the question "Does name shielding 'protect' rape victim?"

The Washington Times reports here that "Sniper suspect's team fears unfair jury." You can access here an article headlined "Mend, don't end plan to gather terror data, think tank urges." And an op-ed by Deborah Simmons is entitled "No means no."
Posted at 22:22 by Howard Bashman



"Using Catholicism: Republicans are playing the religious card in the same way that they have decried the left for bringing up race and gender." Newsweek today offers this online exclusive essay from Eleanor Clift.
Posted at 22:21 by Howard Bashman



"Get Back! The Gathering Storm Over Gay Rights." Richard Goldstein has this essay in the current issue of The Village Voice.
Posted at 22:07 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Feds: Moussaoui Aimed to Hit White House"; here "Appeal Urged on Energy Panel Ruling"; and here "Calif. Sex Predator's Release Blocked."
Posted at 19:49 by Howard Bashman



"New leads in Yale bombing: Branford trailer searched for evidence." Today's edition of The New Haven Register contains this report.
Posted at 19:46 by Howard Bashman



The Associated Press is reporting: Anne Gearan is at the American Bar Association's annual meeting (as are some Federalist Society representatives) and she reports that "Lawyers' Group Names 1st Black President." In other news, "Court: Faulty Tire Didn't Cause Murder" (plus, access the opinion here).
Posted at 16:59 by Howard Bashman



"S.C. activist to lead women lawyers group": News Columnist John Monk writes in today's issue of The State that "The last time the world heard from Zoe Sanders Nettles was when she told U.S. Supreme Court Chief Justice William Rehnquist that asking black judges and lawyers to sing 'Dixie' hurt their feelings. That encounter - at a 1999 judicial conference - made headlines. Now, Nettles, 36, is about to become president of the National Association of Women Lawyers."
Posted at 16:19 by Howard Bashman



"Judiciary a pawn in the Bush political game; 'Make no mistake. This is a fight the Bush administration wants.'" Tom Teepen, a columnist for Cox Newspapers, had this essay online yesterday at the Web site of The Atlanta Journal-Constitution.
Posted at 15:55 by Howard Bashman



"Civil Rights Leader Quits NAACP Over Judicial Nominee": FOXNews today has this report. And The Washington Times reports here today that "Civil rights lawyer quits NAACP in rift over judge pick."
Posted at 15:48 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Judge: Moussaoui Case Fate Lies in Access"; here "Missouri River's Fate Plays Out in Court"; here "Court Backs Tougher EPA Waste Standards"; and here "Nebraska Must Resume Medicaid Payments."
Posted at 15:46 by Howard Bashman



More newly-discovered law blogs than you can shake a stick at: Denise Howell's skill at tracking down and listing the newest law-related blogs continues to amaze. You can access her latest, incredibly comprehensive round-up here (link fixed).
Posted at 15:15 by Howard Bashman



In news from Oregon: Thanks to Law Professor Jack Bogdanski for drawing to my attention the appointment of a new justice to the Supreme Court of Oregon. As Jack's post notes, the appointment leaves that court without a female justice, although, as this article from Wednesday's edition of The Oregonian mentions, the new justice is "openly gay."
Posted at 14:26 by Howard Bashman



Seventh Circuit explains why it denied a stay requested by reporters ordered to turn over tapes of witness for the prosecution in Irish Republican Army anti-terrorism proceeding: You can access today's opinion by Circuit Judge Richard A. Posner at this link. The opinion contains quite a bit of discussion about whether "a federal common law reporter's privilege rooted in the First Amendment" exists. Coincidentally, The Associated Press reported here yesterday that the defendant in the anti-terror proceeding was convicted.
Posted at 14:02 by Howard Bashman



Ford and Firestone may have been negligent, but that doesn't make them liable for murder: See this interesting ruling that the Supreme Court of Nebraska issued today.
Posted at 13:25 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Mixed Ruling for Breast-Feeding Driver"; here "Feds Charge Suspect With Aiding al-Qaida"; and here "Judge Allows Army Chemical-Weapons Burn."
Posted at 13:18 by Howard Bashman



Live on tape: Selected video highlights from the American Constitution Society's recent national convention can be accessed and viewed via this link. These are more than little snippets; I'll call them big non-snippets. Additional video highlights from the convention are likely to become available at that link, so stay tuned.
Posted at 11:46 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Cops, Moussaoui Had Talks, Papers Say"; here "Lawyers for Sniper Defendant Seek Help"; here "Driver: Husband Ordered Breast-Feeding"; and here "Indian Tribe Can Issue License Plates."
Posted at 11:01 by Howard Bashman



Is bliss? The Associated Press reports here that "Alabama chief justice says he may ignore order to remove monument." Today's edition of The Montgomery Advertiser reports here that "Moore may defy court order." And The Crimson White reports here that "Moore defends his case on Fox News."

In Decalogue-related news from elsewhere, The AP reports here from Arizona that "Napolitano won't recommend monument's removal." And The La Crosse Tribune reports here that "Local lawyers advise against fighting monument ruling; Eagles Club pursues appeal"; here that "Group lobbies for appeal"; and here that "City won't have public hearing on monument appeal."

In other news, The Times-Picayune today reports that "Religious right feels left behind; Some conservatives impatient with Bush." Robert A. Martin, Editor and Publisher of The Montgomery Independent, has an op-ed entitled "Protecting freedom" that mentions in closing the Ten Commandments monument in the Alabama Judicial Building controversy and its potential impact on Eleventh Circuit nominee William H. Pryor, Jr.
Posted at 10:30 by Howard Bashman



"Report Card from the U.S. Supreme Court: How The Third Circuit And Pennsylvania's Other Courts Fared In The October 2002 Term." My July 2003 appellate column originally published in The Legal Intelligencer is now available online at this link.
Posted at 10:23 by Howard Bashman



And in other news from St. Louis: The Post-Dispatch reports here that "Lower river levels may hurt some firms."
Posted at 10:21 by Howard Bashman



"Judge urges considering black for court post": Today's issue of The St. Louis Post-Dispatch reports here that "Judge Theodore McMillian, who grew up amid blatant racism before breaking the color barrier on the 8th U.S. Circuit Court of Appeals here a quarter-century ago, hopes African-Americans will at least be considered to replace him." As the reader who drew this article to my attention has noted, the article misspells the name of another Eighth Circuit judge.
Posted at 10:18 by Howard Bashman



"How Government Appeals Actually Work": Law Professor Eric Muller of the "Is That Legal?" blog writes here that "Today's Associated Press story about John Ashcroft's program to keep tabs on lenient judges has a significant error in it." (The story he links to is actually from The Washington Post, but that's not important.)
Posted at 09:30 by Howard Bashman



New blog: "Mommies at Law."
Posted at 08:02 by Howard Bashman



"Chads Hang Over Recall": Law Professor Rick Hasen has this op-ed in today's edition of The Los Angeles Times.
Posted at 07:02 by Howard Bashman



In Friday's newspapers: The New York Times reports here that "Justice Dept. to Monitor Judges for Sentences Shorter Than Guidelines Suggest." Jennifer 8. Lee reports that "3 Northeast States Win Verdict Against a Utility." In local news, "Judge Criticizes Police Methods of Questioning War Protesters." In sports-related matters, "Coverage of Bryant? Let's Go to the Tape." An editorial pertaining to a case currently pending en banc before the U.S. Court of Appeals for the Ninth Circuit is entitled "An Important Human Rights Tool." And Steve Martin has an op-ed entitled "It All Depends on What You Mean by 'Have.'"

The Washington Post reports here that "Muhammad Team Attacks Death Penalty." An article reports that "Clean-Air Ruling Puts Blame on Ohio Utility." In other news, "Settlement Reached in Color-Bias Suit; Black Worker at Applebee's Said Lighter-Skinned Black Supervisor Harassed Him." In local news, "Va. 'Jihad' Suspects: 11 Men, Two Views. U.S. Sees Conspiracy; They Proclaim Piety." And Al Kamen's "In the Loop" column today is entitled "No Justice for All."
Posted at 06:40 by Howard Bashman



Thursday, August 07, 2003
Available online at law.com: In news from California, "Justices Reject Efforts to Halt Davis Recall"; "Clifford Chance Lawyer Finds High Demand for Intel Ruling"; "Jerry Brown to Run for State AG in '06"; and, previously, "California Justices Set to Decide Fate of Recall."

An article reports that "Georgia Librarians Clash With Gay Paper Over Free Speech; Banned gay newspaper argues case at 11th Circuit." In news from New York, "2nd Circuit: Habeas Writ Is for Custody Challenge Only" and "2nd Circuit Reveals Frustration With Immigration Law." In news from New Jersey, "In the Forefront of Terror Cases." And in other news, "Ex-Students Who Sued Florida University Must Pay School's Legal Fees"
Posted at 23:42 by Howard Bashman



"Lawyers Argue Against Death Penalty in Sniper Trial; Judge Asked to Declare Death Penalty Unconstitutional": The Washington Post contains this report. Apparently John Allen Muhammad subscribes to the theory that it is better to give than to receive.
Posted at 23:41 by Howard Bashman



Attorney General John Ashcroft's letter ordering a tally of light criminal sentences is available online: You can access it here, via The Washington Post.
Posted at 23:25 by Howard Bashman



"Peterson rejected deal in January": This article appears in today's edition of The Modesto Bee.
Posted at 23:24 by Howard Bashman



Elsewhere in Thursday's newspapers: In The Boston Globe, Lyle Denniston reports that "Commandments display ordered removed." In other news, "EU warns Microsoft; Says monopoly abuses persist; probe nears end." An editorial is entitled "A caveman in court." And Jeff Jacoby has an op-ed entitled "Connerly's fight for racial equality."

The Los Angeles Times reports here that "Bill Would Extend Time to Charge Molestation." In other news, "Guilty Plea in 'Portland Six' Terror Case; An Oregon man admits role in plot against U.S., agrees to cooperate in co-defendants' trial." An article reports that "Bryant's Trial May Wait Till Season Ends." In other news, "Former Nurse Charged With Killing 10 Veterans Is Set Free; The tests done on the bodies of patients who died in 1992 are found to be inconclusive." In election-related news, "Feinstein No Longer the Wild Card; U.S. senator stays out of the race, promising to help fellow Democrat Davis in his fight." An article reports that "Domestic Partners Gain Tax Benefit; Board of Equalization votes not to reassess property after a partner dies, same as for married couples. A court challenge is predicted." In other news, "Betty Ford Fights Judge's Order to Give Deposition; Ex-first lady is not named in the suit against the Rancho Mirage rehab clinic she directs." And an editorial is entitled "Gains for Gays, and Society."

The Washington Times reports here that "Obesity suits eye children as props." In sports-related news, "Bryant case prompts media feeding frenzy." And an op-ed by Nina May is entitled "Pawns in a culture war."

USA Today reports here that "Europe moves against Microsoft; Software giant faces sanctions for 'abuses.'" And in sports-related news, "Bryant media circus sets up all 3 rings" and "'Very fast event for so much attention.'"
Posted at 22:49 by Howard Bashman



"Saving DNA for a Rainy Day: New York City's plan to indict genetic profiles." Slate this evening posted online this essay from Dahlia Lithwick.
Posted at 22:47 by Howard Bashman



"Calif. Supreme Court Upholds Recall Vote": David Kravets of The Associated Press reports here that "The state Supreme Court on Thursday declined to intervene in California's recall election, clearing the way for an Oct. 7 vote on whether to remove Gov. Gray Davis from office and replace him with some other candidate on the ballot." Law Professor Rick Hasen provides additional details here.
Posted at 20:13 by Howard Bashman



"Insanity defense hard to prove in Minnesota": The Minneapolis Star Tribune today contains this report.
Posted at 17:28 by Howard Bashman



"Judge penalizes Unocal for late submission of documents": The Associated Press reports here that "The civil trial between Unocal Corp. and plaintiffs alleging the oil giant was complicit in human rights abuses in Myanmar may be delayed, following a judge's decision to penalize Unocal for its late submission of documents." The article refers to a California state court action against Unocal, and not to the federal court proceeding that remains pending before an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit.
Posted at 17:04 by Howard Bashman



In news from Mississippi: The Clarion-Ledger today reports here that "Indicted Diaz pleads 'absolutely not guilty.'" And The Sun Herald today contains an article headlined "'Not Guilty' Pleas: Five maintain innocence in judicial corruption case; politics, not evidence, is the driving force, their lawyers say."
Posted at 16:57 by Howard Bashman



Secretary of state, governor, mayor, and now possibly attorney general? The Oakland Tribune reports here that "Brown eyeing state attorney general seat; Oakland mayor coy, couching his intent to run in later interviews."
Posted at 16:54 by Howard Bashman



"Just call it 'Oaksterdam': Pot clubs grow below city's radar; Marijuana operations located in back rooms of businesses." The Oakland Tribune today provides this report.
Posted at 16:51 by Howard Bashman



"Originalism and its Discontents": Law Professor Jeff Cooper has some interesting thoughts that relate to Law Professor Jack Balkin's comments concerning "Scalia's Originalism" that I introduced to the blogosphere yesterday morning.
Posted at 16:47 by Howard Bashman



The topic of my August 2003 appellate column scheduled to appear in The Legal Intelligencer on Monday, August 11, 2003: This will be the topic of my August 2003 column. The redesign of my law firm's Web site has eliminated the feature that allowed readers to sign-up to receive my column via email on the day of its publication and has also removed my ability to get the column online at the firm's site as promptly as before. Such, apparently, is the price of progress. Those who have previously signed-up to receive the column will continue to receive it via email on the day of its publication.
Posted at 16:38 by Howard Bashman



Autoerotic asphyxiation: Today a three-judge panel of the U.S. Court of Appeals for the Second Circuit divided 2-1 over whether death as the result of autoerotic asphyxiation constitutes death "caused by ... intentionally self-inflicted injuries" thereby negating life insurance coverage. The majority ruled that the death in question was caused by intentionally self-inflicted injuries, while a dissenting judge disagreed. The dissenting judge observes in her opinion that the majority's ruling appears contrary to this decision of the U.S. Court of Appeals for the Ninth Circuit. Perhaps the issue of whether death caused by autoerotic asphyxiation is accidental or purposeful will now be headed for the U.S. Supreme Court?
Posted at 15:01 by Howard Bashman



For insightful, comprehensive, and yet understandable coverage of the California recall election process: Be sure to visit Law Professor Rick Hasen's "Election Law" blog regularly. I'm fortunate that I don't live in California, because I'd have a hard time choosing between Gary Coleman, Larry Flynt, Arianna Huffington, Arnold Schwarzenegger, and now perhaps Peter Ueberroth.
Posted at 14:46 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Housekeeper to Publish Book on JonBenet" and here an article entitled "Davis, ACLU Sue Over Calif. Recall Vote."
Posted at 14:38 by Howard Bashman



"Judge Richard Posner discusses his position on law, pragmatism and democracy": Access here the transcript of a CNBC interview from last week. (Via "JD2B.")
Posted at 14:30 by Howard Bashman



"The Catholic Test, Part 2: Big media has been avoiding the new Democratic religion test, but the blogosphere has answered the bell." Hugh Hewitt has this essay today at The Weekly Standard in which he happens to mention a bunch of blogs.
Posted at 13:57 by Howard Bashman



Available online at Town Hall: Thomas Sowell considers "Cameras in the courtroom." Maggie Gallagher has an essay entitled "The future of gay marriage." And William F. Buckley, Jr. has an essay entitled "The Constitutional Defense."
Posted at 13:54 by Howard Bashman



Just when you thought it was safe to step back into the plaza: The Salt Lake Tribune reports here today that "Barely a week after Salt Lake City vacated the public easement on the Main Street Plaza, the deal is under legal attack. The American Civil Liberties Union is expected to file a lawsuit today against Salt Lake City and Mayor Rocky Anderson in U.S. District Court, alleging the city violated the First Amendment's guarantee of free speech and the Constitution's establishment clause that requires the government and churches to remain separate."
Posted at 13:43 by Howard Bashman



Airline's allegedly discriminatory conduct toward an Iranian-born permanent resident of the USA was compelled by an FAA security directive the contents of which cannot be disclosed: This opinion that the U.S. District Court for the District of Columbia issued today involves a quite interesting set of facts.
Posted at 13:28 by Howard Bashman



FindLaw columnists: Edward Lazarus today has an essay entitled "The Pivotal Role Of Justice Anthony Kennedy: Why The Supreme Court's Romantic May Only Become More Influential Over Time." And Matthew Segal considers "A Federalism Role Reversal? Conservatives and Liberals Switch Sides In the Power Struggle Between States and Feds."

In recent days, Michael C. Dorf had an essay entitled "Balancing Privacy and Fair Trial Rights Against the Public's Right to Information in the Kobe Bryant Case." (Yes, now we may have the plot for a "Dorf on Basketball" screenplay.) Anita Ramasastry had an essay entitled "Why the ACLU Is Right To Challenge The FBI's Access to Library, Bookstore, and Business Records Under the USA PATRIOT Act." And Anthony J. Sebok had an essay entitled "The New Asbestos Bill, Part Two: Why This Crucial Legislation Is Facing Huge Obstacles" (plus, you can access the Senate Judiciary Committee's report on The Fairness in Asbestos Injury Resolution Act of 2003 at this link (227-page PDF document)).
Posted at 11:44 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Supreme Court Audio Set for Downloading"; here "Ashcroft Seeking Uniformity in Sentences"; here "Texas Inmate's Execution Blocked"; here "California Finds Home for Sex Predator"; and here "Dog Survives Euthanization at Mo. Chamber."
Posted at 11:31 by Howard Bashman



"Ginsburg: Intergalactic Law Will Shape Court Rulings." Scott Ott of the "ScrappleFace" blog has this "report."
Posted at 10:25 by Howard Bashman



"Hawash gets deal, pleads guilty": The Oregonian today has this report.
Posted at 10:08 by Howard Bashman



"Moore order goes to justices; Federal judge adds to list of state officials he wanted notified": This article appears in today's edition of The Birmingham News.
Posted at 10:05 by Howard Bashman



"Never convicted of sex crime, but man still must register as offender": The Minneapolis Star Tribune today has this report on a ruling of the U.S. Court of Appeals for the Eighth Circuit that I mentioned here yesterday.
Posted at 09:57 by Howard Bashman



"Ariz. group takes on Allentown's gay-rights law": This article appears in today's issue of The Philadelphia Inquirer.
Posted at 09:52 by Howard Bashman



"Confirmation Debate Morphs Into Bitter Religious Battle": Tomorrow's edition of The Forward will contain this report.
Posted at 07:35 by Howard Bashman



In today's issue of The Montgomery Advertiser: You can access here an article headlined "Moore to discuss monument on show" and here a newsbrief headlined "10 commandments order gets delivered."
Posted at 07:34 by Howard Bashman



In Thursday's newspapers: In The New York Times, Adam Liptak reports that "Man Loses Fight to Avoid Listing on Sex Offenders' Registry." You can access here an article headlined "Oyez! The Supreme Court, Now on MP3." An article reports that "U.S. Court Rejects Tire Safety Rule." In other news, "Europe Goes on Offensive in the Case of Microsoft." You can access here an article headlined "Suit Challenges Climate Change Report by U.S." In local news, "Court Order in Hamptons Murder Case Focuses on Lost Laptop." In news from Colorado, "Lakers' Bryant Shows Up and Says Little" and "Many Foibles of Fame on View in Small Town." And U.S. Senator Arlen Specter (R-PA) has an op-ed entitled "The Court of Last Resort."

The Washington Post reports here that "Ore. Man Pleads Guilty to Helping Taliban." In other news, "Moussaoui Requests More al Qaeda Interviews." An article reports that "Judge Orders River Level Lowered; Endangered Species Act Takes Precedence, Ruling Says." In local news, "Panel Urges Va. to End Felons' Evidence Limit." In business news, "EU Faults Microsoft on Tactics; Company Said to Be Trying to Monopolize Two Key Markets." In other business news, "EBay Told to Pay $29.5 Million in Patent Case." An article reports that "Both Sides Seek Hearing On Leaks in Kidnap Case." In news from Colorado, "A Full Court, Press at Bryant Hearing; Media, Onlookers Engulf Proceeding." And columnist Michael Wilbon has an essay entitled "The 'Unseemly' Reality Of Celebrity Notoriety."

In The Christian Science Monitor, you can access here an article headlined "When the only unknown is victim's name; High-intensity coverage raises questions about age-old stigmas - and holding the media accountable." And in other news, "Internet dating goes behind bars; Web's largest business pairs up with another huge industry: prisons."
Posted at 06:46 by Howard Bashman



"Mike Hawash's plea agreement in full": It is available online here, via The Oregonian.
Posted at 06:40 by Howard Bashman



"Ashcroft Orders Tally Of Light Sentencing; Critics Say He Wants 'Blacklist' of Judges": Thursday's edition of The Washington Post contains this report.
Posted at 00:18 by Howard Bashman



Wednesday, August 06, 2003
"Fantasy Justice": Here's a new blog that describes itself as "a site completely devoted to the U.S. Supreme Court. The game is modeled after fantasy sports games. Points will be awarded based on the participant's correct predictions of the outcome of each case and how each justice will rule on a particular case."
Posted at 23:38 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Los Angeles Times reports here that "Judge in Roadless Ruling Is Accused of Violating Ethics Laws; His decision in the forest land case is seen as possibly affecting his interests in oil, gas firms." A front page article entitled "Courtroom Challenges Stand in Recall Path" provides a link to Law Professor Rick Hasen's "Election Law" blog. In other news, "Bryant's Hearing Will Be Short and Well Covered." A related report bears the headline "Defense: Gag Order Violated." An article reports that "Judge Denies Luster's Captor Share of Bail Funds." In other news from California, "Prison-Based Recycling Effort to End; California plans to stop using federal prisoners to dismantle potentially toxic electronic junk. The state will hire a private firm instead." A newsbrief reports that "Strip Club May Lose Permit Over School." And letters to the editor appear under the heading "Recall: The Court Must Show Responsibility."

The Washington Times reports here that "Muhammad defense scores." And an op-ed by Thomas Sowell asks "Are police racist?"

The Boston Globe reports here that "SJC lets Falmouth legislator keep seat." And an editorial is entitled "Backward in California."

Finally for now, USA Today contains an op-ed by Vicky Rideout entitled "Internet filters block valuable data, too."
Posted at 23:02 by Howard Bashman



"Senate GOP sees little hope to snap judicial filibuster": The Washington Times today contains this report.
Posted at 20:58 by Howard Bashman



"Catholic Baiting: Are Catholic judicial nominees automatically suspect now?" Terry Eastland has an essay today at The Weekly Standard that begins, "William Pryor isn't going to become a federal judge. Not this year, not next."
Posted at 20:57 by Howard Bashman



"Order to remove commandments monument delivered to all justices": The Associated Press has this news from Alabama.
Posted at 20:54 by Howard Bashman



Tenth Circuit rules against housekeeper to John and Patsy Ramsey and holds that Colorado grand jury secrecy statute doesn't violate the First Amendment: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit issued an opinion that begins:
This case concerns the constitutionality of a Colorado statute governing the secrecy of grand jury investigations. Plaintiff Linda Hoffmann-Pugh worked as a housekeeper for John and Patsy Ramsey prior to the highly publicized murder of their daughter, JonBenet Ramsey. Due to her association with the Ramsey household, Ms. Hoffmann-Pugh was involved in the grand jury investigation of the murder. She now wishes to write a book about her experiences. Colorado requires a grand jury witness to take an oath not to disclose her testimony, except to discuss it with her attorney or with the prosecutor, until and unless an indictment or report is issued. The oath thereby precludes the witness from divulging her testimony even after the term of the grand jury has ended if the investigation of the crime continues. Fearing prosecution under Colorado law for contempt if she discloses her grand jury testimony, Ms. Hoffmann-Pugh sought and was granted a judgment declaring she could not be prosecuted for revealing that information. The district court held that the Colorado secrecy rules violate the First and Fourteenth Amendments. The state appeals and we reverse.
You can access the complete opinion at this link.
Posted at 20:30 by Howard Bashman



Those who pay lawyers to file appellate amicus briefs simply aren't getting their money's worth, Seventh Circuit Judge Richard A. Posner (in chambers) explains: Today Judge Posner issued a must-read opinion to explain why he was denying leave to the President of the Illinois Senate and the Speaker of the Illinois House of Representatives, and also to the Communications Workers of America, to file amicus briefs in an appeal that presents the question whether portions of the Illinois Public Utilities Act are preempted by the Federal Telecommunications Act of 1996. In the course of denying permission to file amicus briefs, Judge Posner writes:
This court has held that whether to allow the filing of an amicus curiae brief is a matter of "judicial grace." National Organization for Women, Inc. v. Scheidler, 223 F.3d 615, 616 (7th Cir. 2000). The judges of this court will therefore not grant rote permission to file such a brief, and in particular they will deny permission to file an amicus brief that essentially duplicates a party's brief. Id. at 617. The reasons for the policy are several: judges have heavy caseloads and therefore need to minimize extraneous reading; amicus briefs, often solicited by parties, may be used to make an end run around court-imposed limitations on the length of parties' briefs; the time and other resources required for the preparation and study of, and response to, amicus briefs drive up the cost of litigation; and the filing of an amicus brief is often an attempt to inject interest group politics into the federal appeals process. Id. at 616.

All this said, comity might seem to be a compelling reason to allow the filing of an amicus curiae brief by the leaders of a state legislature in an appeal concerning the validity of a statute of their state; and there is no doubt that a union has an interest in the regulatory regime for an employer of its members. It might be argued therefore that I should not trouble myself to determine whether the proposed amicus curiae briefs fill gaps in or otherwise productively supplement the parties' briefs. No doubt many courts would reason so, or would prefer to ignore amicus curiae briefs than to screen them. But in my view the argument from comity bespeaks a misunderstanding of the difference between the legislative and the judicial processes. The legislative process is democratic, and so legislators have an entirely legitimate interest in determining how interest groups and influential constituents view a proposed statute. Statutes pass because there is more political muscle behind than in front of them, not because they are "wise" or "just," though they may be. The judicial process, in contrast, though "political" in a sense when judges are asked to decide cases that conventional legal materials, such as statutory and constitutional texts and binding precedent, leave undetermined, so that some mixture of judges' values, temperament, ideology, experiences, and even emotions is likely to determine the outcome, is not democratic in the sense of basing decision on the voting or campaign-financing power of constituents and interest groups. An appeal should therefore not resemble a congressional hearing.

The fact that powerful public officials or business or labor organizations support or oppose an appeal is a datum that is irrelevant to judicial decision making, except in a few cases, of which this not one, in which the position of a nonparty has legal significance. And even in those cases the position can usually be conveyed by a letter or affidavit more concisely and authoritatively than by a brief.

No matter who a would-be amicus curiae is, therefore, the criterion for deciding whether to permit the filing of an amicus brief should be the same: whether the brief will assist the judges by presenting ideas, arguments, theories, insights, facts, or data that are not to be found in the parties' briefs. The criterion is more likely to be satisfied in a case in which a party is inadequately represented; or in which the would-be amicus has a direct interest in another case that may be materially affected by a decision in this case; or in which the amicus has a unique perspective or specific information that can assist the court beyond what the parties can provide. National Organization for Women, Inc. v. Scheidler, supra, 223 F.3d at 616-17; Ryan v. CFTC, 125 F.3d 1062, 1063 (7th Cir. 1997) (chambers opinion); Georgia v. Ashcroft, 195 F. Supp. 2d 25, 32 (D.D.C. 2002). In my experience in two decades as an appellate judge, however, it is very rare for an amicus curiae brief to do more than repeat in somewhat different language the arguments in the brief of the party whom the amicus is supporting. Those who pay lawyers to prepare such briefs are not getting their money's worth.
You can and should access the complete opinion at this link.
Posted at 15:15 by Howard Bashman



"No, Sen. Santorum, Catholics aren't a protected class": Josh Marshall today has this essay online at The Hill.
Posted at 14:38 by Howard Bashman



"State of the First Amendment 2003": The First Amendment Center has this report (PDF).
Posted at 13:20 by Howard Bashman



"Lawmakers governing with guns; Some carry weapons on floor": Sunday's edition of The Fort Wayne Journal Gazette reported here that "It may not be the wild, wild West, but one in six Indiana lawmakers has a permit to carry a firearm and several of the lawmakers keep the guns handy while doing the public's business on the floor of the House and Senate."
Posted at 13:09 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Feinstein Rules Out Run for Calif. Gov." and here an article entitled "Mass. Group to Push Clean Elections Law."
Posted at 13:03 by Howard Bashman



By requiring convicted criminals who are not sex offenders to register as sex offenders, Minnesota does not violate the convicts' federal constitutional rights: You can find today's rather surprising ruling of the U.S. Court of Appeals for the Eighth Circuit at this link.
Posted at 12:51 by Howard Bashman



"Utah ACLU hopes to find religion": The "clever headline of the day" award goes to The Salt Lake Tribune for this article.
Posted at 11:58 by Howard Bashman



"Scholarship case looks good; Aid revoked, but state can't enforce provision": This article appears in today's issue of The Traverse City Record-Eagle.
Posted at 11:56 by Howard Bashman



"Moore gets deadline of Aug. 20; Federal judge threatens fines if monument not removed": The Birmingham News today contains this report. And a related editorial is entitled "Upholding the law: Moore must remove Commandments from rotunda."
Posted at 11:54 by Howard Bashman



"Sen. Clinton's judicial remarks uncalled for": This editorial appears in today's edition of The Mobile Register.
Posted at 11:51 by Howard Bashman



Sixth Circuit, Second Amendment: Today the U.S. Court of Appeals for the Sixth Circuit posted online an opinion that states:
Bournes first argues that sec. 5861(d) is "an unconstitutional infringement on [his] Second Amendment right to keep and bear arms." In reviewing such a claim, we have held, however, that "the Second Amendment guarantees a collective rather than an individual right." United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976). Accordingly, "there can be no serious claim to any express constitutional right of an individual to possess a firearm." Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971).

Recognizing this authority and our well-entrenched rule that a panel of this court cannot overrule the published opinion of another panel unless an intervening Supreme Court decision mandates modification of the prior opinion, see United States v. Ables, 167 F.3d 1021, 1027 (6th Cir. 1999), Bournes urges us to reconsider our holding in Warin in light of United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). But whatever the value of dicta in that opinion referring to the Court's understanding of the Second Amendment's "textual exegesis," id. at 265, we have reaffirmed Warin on at least two occasions in the interim. See United States v. Baker, 197 F.3d 211, 216 (1999); United States v. Napier, 233 F.3d 394, 402 (6th Cir. 2000). Without a subsequent en banc ruling to the contrary, we are therefore bound to apply Warin in this case.
You can access the complete opinion at this link.
Posted at 10:51 by Howard Bashman



"Muppet back to work after attack at park": This article appears in today's edition of The Philadelphia Inquirer.
Posted at 10:46 by Howard Bashman



"Army of media awaits Bryant hearing; Judge is 'flabbergasted' by attention given case": CNN.com offers this report. And Gail Diane Cox reviews (second item), in this week's issue of The National Law Journal, the court Web site devoted to the Kobe Bryant case.
Posted at 10:38 by Howard Bashman



Manus manum lavat: With regret for not being able to run this post past Fritz Kempner, my Latin teacher at Penn Charter, here goes. A number of readers have emailed in response to this post from yesterday afternoon that "de novo" doesn't mean "of nothing." Rather, in Latin "novo" means "new," and "nihil" means "nothing." Thus, "de novo" means "anew." And, in totally unrelated news, "You'll soon know mo' about Nemo."
Posted at 10:34 by Howard Bashman



"Clemency Sought for Ex-La. Governor": The Associated Press has this report.
Posted at 09:25 by Howard Bashman



"Scalia's Originalism": You can access here Yale Law Professor Jack M. Balkin's take on the matter.
Posted at 09:12 by Howard Bashman



Online at Town Hall: David Limbaugh has an essay entitled "Anti-Christian litmus test"; Walter Williams has an essay entitled "Race board needed"; Jonah Goldberg writes that "Dems want to bench judges of faith"; and Armstrong Williams asks "Is Harvey Milk High School really a good idea?"
Posted at 09:03 by Howard Bashman



In Wednesday's newspapers: In The New York Times, Jennifer 8. Lee reports that "Judge Who Ruled on Forests Is Faulted for Energy Holdings." An obituary reports that "Robert J. Ward, 77, a Senior Federal Judge, Is Dead." In other news, "Pakistani Detainee to Face Terror Charge, Lawyer Says." An article reports that "More Losers in Funds Seek Equity in Court." In other business-related news, "Report Cites I.R.S.'s Failure to Follow Up on Tax Cases." An editorial is entitled "Karl Rove's Water Policy." And letters to the editor appear under the heading "A Public School for Gay Students."

The Washington Post reports here that "Judge Is Accused Of Stake In Ruling; Ethics Complaint Cites Investments." An article reports that "Patriot Act Faces New Challenge In Court; Group Says Law Limits Free Speech." In somewhat related news, "U.S. Backs Florida's New Counterterrorism Database; 'Matrix' Offers Law Agencies Faster Access to Americans' Personal Records." An article reports that "U.S. to File Terrorism Charges Against Pakistani Detainee." In local news, "Crossing Lines to Fight Terrorism; D.C., Four States to Share Law Enforcement, Other Records." An article reports that "2 Marshals Suspended in Probe of Courthouse Damage." In other local news, "Muhammad Attorneys Beat Alibi Challenge; Judge's Ruling Lets Defense Stay Silent." A report from Colorado bears the headline "A Mountain of Intrigue; Colorado Village Provides Setting For Bryant Case." In business news, "Lawsuit May Curtail Sales Of BlackBerrys." And columnist Robert J. Samuelson has an op-ed entitled "The 'Big Media' Myth."

Finally for now, at OpinionJournal, James Taranto has an essay entitled "Politicians Go Online; They can run, but can they blog?"
Posted at 08:30 by Howard Bashman



"Attorneys will testify at chief master sergeant's trial": Stars and Stripes today has this report.
Posted at 08:29 by Howard Bashman



"Stolen-beer trial altered face of justice": The Associated Press reports here that a historical marker has been dedicated in Panama City, Florida to commemorate the fortieth anniversary of the U.S. Supreme Court's Gideon v. Wainwright ruling.
Posted at 08:26 by Howard Bashman



"Federal judge says state can't prosecute 2 tipsy pilots": Today's edition of The Orlando Sentinel contains this report. And The Miami Herald contains an article headlined "Judge: Only feds, not state, can try pilots on drunk charge."
Posted at 08:18 by Howard Bashman



"Catholic Doctrine and the Obligations of Judges in Abortion Cases: A Comment on the Pryor Nomination." Law Professor Lawrence Solum offers these interesting thoughts at his "Legal Theory Blog."
Posted at 06:30 by Howard Bashman



"Monument's removal ordered": This article appears in today's issue of The Montgomery Advertiser. And The Crimson White reports here that "Ten Commandments monument ordered removed; Thompson's ruling leaves Moore with 15 days to remove monument from judicial building."
Posted at 06:23 by Howard Bashman



"Missouri River Water Levels to Be Lowered": The Associated Press provides this report. And The St. Louis Post-Dispatch reports here that "Corps says it will lower river level."
Posted at 06:21 by Howard Bashman



Tuesday, August 05, 2003
Federal judge tells Chief Justice of Alabama Supreme Court that Ten Commandments monument must be removed from public display in Alabama's Judicial Building: You can access today's Final Judgment and Injunction of the U.S. District Court for the Middle District of Alabama at this link. Here's a key passage from today's order:
Finally, in view of the Chief Justice's recent reassertion that this court does not have the authority or jurisdiction to enter an injunction in this case, an argument already rejected by this court and the Eleventh Circuit, this court believes it appropriate to provide the parties with some preliminary idea of the court's thinking as to how the court will proceed if later there is an allegation that today's injunction has not been complied with within the time allowed. If the plaintiffs file a motion for civil contempt, the court will immediately issue a show-cause order. If, based on the show-cause-order response and the evidence presented at a hearing, there is a finding of civil contempt, the court could levy substantial fines against Chief Justice Moore in his official capacity and, thus, against the State of Alabama itself, until the monument is removed. Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105 (1985) ("an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity"). For example, the court could levy a fine of $5,000 a day for the first week (that is, for each of the first seven days), with the amount of the fine perhaps to double at the beginning of each and every week thereafter to the extent allowed by law and with the fine amount to be paid into the court at the end of each week, until there is full compliance with the order the court enters today.

It is the initial obligation of the State of Alabama, not this court and not any federal official, to remove the monument. Because the Chief Justice accepted the monument, and has maintained it in the Alabama Judicial Building, in his capacity as a state official, it is the obligation of the State of Alabama (acting through the Chief Justice and, should he fail or be incapable of carrying out his duty under the rule of law, some other appropriate state official) to remove it. The court, at this time, does not envision a scenario in which there would be an opportunity for any physical confrontation between federal and state officials or between federal officials and anyone else. If called upon, this court intends, at this time, to achieve compliance by first exhausting the traditional civil-contempt process of levying fines.
The federal court-imposed deadline for removing the monument from public display in Alabama's Judicial Building is Wednesday, August 20, 2003. Stay tuned here for continued complete coverage.
Posted at 23:51 by Howard Bashman



Available online at Reason: Cathy Young has an essay entitled "Kobe Beef: Issues of fairness raised on rape 'shield.'" And Jacob Sullum has an essay entitled "The Case of the Overlooked Cook: A fat guy's discrimination suit highlights ambivalence in the anti-obesity movement."
Posted at 23:38 by Howard Bashman



Available online at law.com: From California comes news that "Justices Give Their Blessing to Gay Adoptions." In other news from California, you can access here an article headlined "Gray Matter." In news pertaining to the U.S. Court of Appeals for the Second Circuit, "Lawyer's Bad Conduct May Toll Time Limit." You can access here an article headlined "Appeals Court: Blue Cross Blue Shield of Texas Not a Charity." In other news, "Superfund Liability Can Apply Retroactively, Pa. Court Rules." From Connecticut comes word that "Accidentally Sent Gun Industry E-Mail Found to Be Privileged." An finally is an article headlined "Texas Appeals Court: Arbitrators Immune From Civil Suits."
Posted at 23:36 by Howard Bashman



"Voting Suit Gains Momentum": Wired News has this report on a case now pending before the U.S. Court of Appeals for the Ninth Circuit.
Posted at 23:27 by Howard Bashman



Elsewhere in Tuesday's newspapers: In The Boston Globe, Lyle Denniston reports that "Davis files lawsuit to delay recall." You can access here an article headlined "Displaying evidence for posterity; Harvard's Nuremberg site counters Holocaust deniers." Columnist Peter S. Canellos has an essay entitled "A call to order sounds for liberals on message." And Joan Vennochi has an op-ed entitled "Bush's gay marriage dodge."

The Los Angeles Times reports here that "Court OKs Adoption by Unwed Pairs; Justices uphold the state's rules and find in favor of a lesbian who had been stopped from becoming a legal parent of her ex-partner's son." In somewhat related news, "Justices to Review Suit Over Day-Care Center Deaths." An article reports that "Unocal to Urge Judge to Strike Criticism." In other news, "Man Gets 1 Year for How-To on Explosives; The Sherman Oaks resident, now 20, posted instructions for making Molotov cocktails and other devices on an anarchist Web site." An article reports that "Both Sides Add Porn to Debate Over File Sharing." In news from Colorado, "For Rookie D.A., a Case Study in Support Group Dynamics." In financial news, "SEC's Get-Tough Attitude Tests the Limits of Its Power; The agency pushes hard against corporate misconduct but also draws fiercer reactions." In other corporate-related news, "Quattrone Lawyer Gives Case for Moving Venue." In local news, "Council Accepts a Costly Tax Ruling; Huntington Beach officials will not appeal decision that will force the city to refund up to $27 million to residents. Bankruptcy is ruled out." Columnist Robert Scheer writes that "Bush Plays Pope on Marriage Issue." And letters to the editor appear under the headings "Gay Marriages and Society"; "Gov. Davis Takes the Recall Effort to Court"; and "A Rebuttal by Inglewood Case Prosecution."

USA Today reports here that "Colo. rape laws among toughest; Bryant case brings focus on penalties, definition of consent." You can access here a report headlined "Lawsuits: Recall wrongs Davis, voters." An editorial is entitled "Gay marriage debate clouds real issue of equal treatment," while a related op-ed by Marilyn Musgrave is entitled "Marriage = Man + Woman." And letters to the editor appear under the heading "On gay-marriage issue, 'Bush sets poor example.'"

The Washington Times today offers nothing worthy of note other than op-eds. William E. May writes of "The decriminalization of sodomy." Tod Lindberg considers "The 'liberalization' of public opinion." Jacob Sullum has an essay entitled "Authority deficit." And Bruce Fein addresses "Educating youth."
Posted at 22:36 by Howard Bashman



Blogs cover constitutional issues better than major news organizations: So argues Susanna Cornett of "cut on the bias" is a post you can access here. The sad truth is that many major news organizations wish that they could provide more coverage of constitutional issues, but they fear that they will have to "dumb it down" to such a degree to make it understandable to the average viewer that it's not worth the effort. That sentiment simultaneously underestimates the intelligence of the general public while guaranteeing that the general public will remain ignorant of important issues.
Posted at 22:27 by Howard Bashman



"Court: Stop police chases." Pete Williams, a devoted "How Appealing" reader who serves as Justice Department correspondent for NBC News, tonight reported here that "A federal appeals court has ruled that police cannot use deadly force to stop someone trying to get away in a car even if the chase presents a danger to public safety." Simply click here to launch the video report from tonight's installment of Nightly News with Tom Brokaw. Additionally, you can access yesterday's Ninth Circuit ruling, which Williams first learned about via this very Web log, at this link.
Posted at 22:17 by Howard Bashman



"Ethics Complaint Filed Against Interior Solicitor; Interior's Top Lawyer May Have Violated Ethics Agreement": The groups Friends of the Earth and Public Employees for Environmental Responsibility today issued this press release regarding an ethics complaint that they have filed against Ninth Circuit nominee William G. Myers III.
Posted at 21:10 by Howard Bashman



"Judge orders Sappington to take medication": The Kansas City Star has this report.
Posted at 21:05 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Groups Seek Probe of Bush Judge Nominee"; here "Activists Accuse Judge Forest Roads Case"; here Gina Holland reports that "Campaign Finance Filings Flood High Court"; here Anne Gearan reports that "Attorney Group May Endorse Gay Adoptions"; here "Government won't release terror financing list"; here "Kan. Murder Defendant May Get Medication"; and here "Calif. Court Finds Priest Fathered Woman."
Posted at 20:36 by Howard Bashman



In today's issue of The Onion: "Former President Carter To Be Tried For Peace Crimes"; an infographic on "The Davis Recall"; and "Kobe Bryant's Fantasy-Team Coach 'Saddened' By Allegations."
Posted at 17:37 by Howard Bashman



Thirty-six page Eleventh Circuit opinion in which twenty-six pages are devoted to determining the proper standard of appellate review: What follows may turn out to be my favorite passage from the opinion:
It is unclear how we can give due deference to a district court's conclusions when applying de novo (literally, "of nothing") review, since de novo review requires us to look at a question as if we are the first court to consider it. Put simply, it is definitionally impossible to give deference of any sort to a decision being reviewed de novo.
You can access the complete ruling of the U.S. Court of Appeals for the Eleventh Circuit, issued today, at this link.
Posted at 17:27 by Howard Bashman



Governor of Illinois tells judiciary to quit whining about the low pay: The Chicago Sun-Times today reports here that "Gov. Blagojevich on Monday called on the state's judges to drop their lawsuit seeking pay raises, saying they should tough it out just like 'ordinary, hardworking people' are doing."
Posted at 17:04 by Howard Bashman



"Deeply held beliefs": Columnist Mona Charen has this essay today at Town Hall.
Posted at 16:56 by Howard Bashman



"A top judge fears juries are on wane": The Boston Herald today contains this article.
Posted at 16:53 by Howard Bashman



"Judge orders Ten Commandments removed from courthouse": The Associated Press reports here that "A federal judge ordered Alabama Chief Justice Roy Moore on Tuesday to remove a Ten Commandments monument from the Alabama Judicial Building within 15 days or face possible daily fines against the state."

In news leading up to today's order, today's edition of The Birmingham News contained an article headlined "Moore: Federal court lacks authority." The Montgomery Advertiser reported here this morning that "Monument's removal on hold." The AP yesterday had an article headlined "Moore says Thompson has no authority to order monument removal." And Saturday's issue of The Advertiser contained an editorial entitled "Expect arrest for obstruction."

In Decalogue-related news from elsewhere, today The AP reports from Salt Lake City that "ACLU encourages hunt for Ten Commandments monuments." Yesterday The La Crosse Tribune reported here that "Council set to consider fight for monument." But today that newspaper reports that "The La Crosse Park Board voted 6-2 Monday not to appeal a court order to remove the Ten Commandments monument from Cameron Park."

On Sunday, The AP reported from Florida that "Monument with Ten Commandments in Polk County could draw a fight." Relatedly, The Tampa Tribune reported here on Saturday that "Polk Proponents Remain Rock Steady." Also on Saturday, The Daily Herald of Everett, Washington reported that "Monument at center of debate."
Posted at 16:26 by Howard Bashman



"Four GOP justices grab power of five": Columnist Brian Dickerson had this essay in yesterday's edition of The Detroit Free Press. You can access the rule changes in question, and the opinions dissenting from the order approving the changes, at this link.
Posted at 15:02 by Howard Bashman



Telly assaulted: The Bucks County (Pa.) Courier Times today reports that "Sesame character poked with umbrella." I long for the good old days, when all one had to worry about was the possibility that a Major League Baseball player would assault an Italian Sausage.
Posted at 14:50 by Howard Bashman



Today's decisions of note from the U.S. Court of Appeals for the Ninth Circuit: Today the U.S. Court of Appeals for the Ninth Circuit issued at least four rulings that are worthy of mention here.

Today's first ruling of note involves a plaintiff who is suing under the federal civil rights act to challenge an alleged policy of Los Angeles County to refuse to settle civil rights cases for anything other than a lump sum, thereby supposedly depriving plaintiffs who settle such claims of the attorneys' fee that 42 U.S.C. sec. 1988(b) would otherwise provide. The Ninth Circuit today ruled, in an opinion you can access here, that the federal district court should have issued a preliminary injunction ordering Los Angeles County not to enforce that supposed policy in plaintiff's case so that she can arrange to retain counsel.

Second, the court today reversed the dismissal of a securities fraud class action against Dura Pharmaceuticals, Inc.

Third, the court held that a defendant who is charged in federal court with having committed a crime for which the death penalty may be imposed is not entitled to have two court-appointed lawyers "once the threat of capital punishment has been irrevocably removed from the slate of available punishments." Rather, in such an instance, the defendant is entitled to only a single court-appointed attorney.

Finally, anyone interested in the disassembly of a beef carcass at a meat processing plant will find much of interest in this decision issued today.
Posted at 13:29 by Howard Bashman



Sharply divided en banc Eighth Circuit decides child custody case involving whether two children must be returned to Israel to live with their father over the objection of their mother, who resides in Minnesota: You can access today's en banc ruling of the U.S. Court of Appeals for the Eighth Circuit at this link. The majority opinion begins:
Robert Silverman (Robert) appeals the district court's rulings on his claim under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), 19 I.L.M. 1501 (1980), as implemented by the United States in the International Child Abduction Remedies Act, 42 U.S.C. sec. 11601-11610 (ICARA). Because we find that the children's habitual residence was Israel at the time of their removal and that there is no grave risk of harm to the children if they are returned to Israel, we reverse the district court.
The majority opinion later observes:
The district court found that even if the children's habitual residence is in Israel, they need not be returned to Israel because they will face a "grave risk of physical harm" there. Silverman, 2002 WL 971808, at *8. The district court reached this conclusion, in part, because the violence in Israel makes it a "zone of war," which is dangerous for the children. Id.
The entire en banc Eighth Circuit appears to disagree with the district court's "zone of war" finding with respect to Israel, although the dissenting judges suggest that the district court should be allowed to consider on remand "the question of whether returning the children to Israel, given its current conditions, may cause them to suffer psychological harm." The majority opinion, however, does not order such a remand.

The Eighth Circuit's original three-judge panel's ruling is available at this link, and my coverage of that decision from December 2002 can be accessed here.
Posted at 12:09 by Howard Bashman



"Woman pleads guilty in shooting of Fulton judge": This report appears in The Atlanta Journal-Constitution today.
Posted at 11:18 by Howard Bashman



"Bush is likely to tap St. Louis lawyer for 8th Circuit": The St. Louis Post-Dispatch today has this report.
Posted at 10:24 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Lawsuit Rejected Against Ky. Cabinet" and here an article entitled "Villanova Prof Accused of Killing Her Baby."
Posted at 10:19 by Howard Bashman



Marty of "SCOTUSblog" explains yesterday's order pertaining to oral argument that the U.S. Supreme Court issued in the campaign finance cases: Click here for details.
Posted at 09:56 by Howard Bashman



"The Catholic Test: Two hudred years after the Framers renounced them, Senate Democrats have reinvented the Test Act." Hugh Hewitt today has this essay online at The Weekly Standard.
Posted at 09:53 by Howard Bashman



"Feinstein stays aloof, publicly, out of state": The San Francisco Chronicle today contains this front page article.
Posted at 09:52 by Howard Bashman



"Adoption procedure used by gays upheld; State high court backs 2nd-parent method": This article appears today in The San Francisco Chronicle. And you can access yesterday's ruling of the Supreme Court of California at this link.
Posted at 09:50 by Howard Bashman



"Owens stirs affirmative action debate; Says Dems out of touch on race-based admissions": Today's issue of The Denver Post reports here that "The debate over affirmative action in Colorado heated up Monday as Gov. Bill Owens again bashed a U.S. Supreme Court decision that allows race to be considered in college admissions."
Posted at 09:43 by Howard Bashman



"Inmate facing increased sentence for escaping to shop; Woman bought items prisoners ordered": This article appears in today's edition of The Lexington Herald-Leader.
Posted at 09:41 by Howard Bashman



"Judge 'Tarzan' benched": The Boston Herald today offers this report.
Posted at 09:37 by Howard Bashman



In Tuesday's newspapers: The Washington Post reports here that "Sniper Trials' Cost May Top $1 Million Each." In other news, "Davis Seeks Delay in Recall Vote; Calif. Democrats Continue to Debate Backing Another Candidate." And an editorial is entitled "Attack on Judges."

The New York Times reports here that "In California, Davis Sues to Delay Recall 'Train Wreck.'" In local news, "New York Pursues Old Cases of Rape Based Just on DNA." In other local news, "New Jersey's Justices Uphold Cap on Aid to Mothers on Welfare" and "Relatives Recall 9/11 Victim; Prosecutors Say It's Fiction." You can access here an article headlined "On Trail of Fake Rolexes, Lawyers Feel Harassed." And Jeff Benedict has an op-ed entitled "Athletes and Accusations."

Finally for now, The Christian Science Monitor reports here that "First school for gay students draws dollars and criticism."
Posted at 06:37 by Howard Bashman



Monday, August 04, 2003
"'Alcatraz of the Rockies'; The feds plan to make the Supermax facility in Florence the nation's premier prison for terrorists": Yesterday's edition of The Denver Post contained this report. (Via "TalkLeft.")
Posted at 22:36 by Howard Bashman



Tonight's music selection: "Bandages" by Hot Hot Heat (Windows Media Player required).
Posted at 22:28 by Howard Bashman



Elsewhere in Monday's newspapers: The Los Angeles Times reports here that "Davis to Ask Court to Postpone Recall; As nervousness builds among party leaders, state Senate Democrats will consider whether to back a replacement if the governor is ousted." An article reports that "Low-Profile Defense Team Knows High-Profile Cases; Bryant's lawyers have had a lot of success with clients in spotlight, but avoid making cases in media." And in local news, "Dress Code Is Wearing on Hells Angels Leader as Fair Turns Him Away Again; George Christie Jr. considers a lawsuit after officials for the Ventura County event enforce a ban on gang attire for a second year."

The Boston Globe reports here that "Software helps blogs flourish." And Cathy Young has an op-ed entitled "Issues of fairness raised on rape 'shield.'"

Finally for now, in today's edition of The Washington Times Nat Hentoff has an op-ed entitled "No 'sneak and peek.'"
Posted at 22:06 by Howard Bashman



An admittedly conservative "How Appealing" reader reports further on this past weekend's American Constitution Society national convention: As promised, here's a follow-up report from a frequent "How Appealing" reader, and admitted conservative, who attended this past weekend's ACS national convention:
Among the more interesting sessions at the ACS convention was "Judging in a Conservative Era," a panel discussion of seven federal judges appointed by Democratic Presidents moderated by former White House Counsel Beth Nolan. Participating on the panel were Judges Rosemary Barkett (11th Circuit), Helen Berrigan (E.D. Louisiana), Guido Calabresi (2nd Circuit), William Fletcher (9th Circuit), Theodore McKee (Third Circuit), Louis Oberdorfer (D.D.C.) and the indefatigable Stephen Reinhardt (9th Circuit). The panel was notable for both its composition, as well as for the candor with which several of the judges discussed their views on current legal trends.

Judges Barkett and Berrigan began with rather mild comments. Judge Barkett expressed her disdain for labels -- "activist" only means "I disagree with your opinion" -- and extolled the benefits of diverse views on the federal bench. Judge Berrigan echoed the traditional judicial complaints against mandatory minimums, excessively rigid sentencing guidelines and other measures that constrain judicial discretion. In her view, "the Great Writ of Habeas corpus has become the puny writ of Habeas Corpus."

Things really got interesting with Judge Calabresi's remarks. In his view, judges shouldn't have trouble judging in a conservative era, as judges are inherently conservative by nature, insofar as the focus on precedent and preserving extant doctrines. "The problem is that we're not living in a conservative era," Judge Calabresi explained. Rather, "we are living in an era that is radically right" and "reactionary." Judge Calabresi declared that compromising domestic civil liberties without a declaration of war was unprecedented. Challenging the New Deal is simply "reactionary." "There is nothing conservative about any of these things," as a conservative judge will seek to preserve the "constitutional settlements" of the past. Even Judge Calabresi's former Yale Law School colleague Robert Bork, "before he went completely off the deep end," would not have challenged the legal legacy of the New Deal, Judge Calabresi explained. Judge Calabresi said he was thankful that "radical eras don’t last" and said that it was important for judges to "lay the groundwork" in their opinions for "future constitutional settlements" that turn away from current jurisprudence.

Judge Fletcher was equally provocative in remarks that effectively accused justices of the Supreme Court of having engaged in dishonesty. Playing off the controversy surrounding the infamous sixteen words in the State of the Union address concerning uranium -- "Mr. Bush, please meet Mr. Clinton" -- Judge Fletcher suggested that the Chief Justice was just as guilty of misrepresenting facts in his majority opinion in Demore v. Kim (an opinion, Judge Fletcher acknowledge, that overturned one of his own opinions). As Judge Fletcher described the case, the Chief Justice systematically altered the facts of the case so as to avoid striking down a federal statute allowing the detention of deportable aliens without bail. "If we cannot tell the truth about the cases we are deciding, we are less than judges," Judge Fletcher explained. Just as we should avail ourselves to "speak truth to power," he closed, "power should speak truth to us."

Judge McKee's remarks were a bit rambling and did less to arouse the crowd, but they remained interesting. He congratulated ACS for not "sitting and doing nothing while Rome burns around us." He was also dismayed at habeas trends and warned "if you call something the US Patriot Act, watch out!" While he regretted that the word liberal "seems to have fallen into disrepute," he noted that progressive "can be worn with pride." He expressed his pleasure that the sentencing guidelines have been revised, but said the changes were made "for all the wrong reasons," insofar as they were made due to economic concerns, rather than to advance social justice.

Judge Oberdorfer began his remarks echoing Senator Clinton's reaffirmation of the existence of the "vast right-wing conspiracy," noting that he has long been aware that the "conservative element of [his] court of appeals and the Supreme Court" were just the "tip of the iceberg." He was dismayed that "right wing nuts" were now part of a larger network that is "giving the Constitution a hard time." This network, he explained, is nourished by "the Manhattan Institute, the Federalist Society," and other groups that put out books by "Stephen [sic] Epstein" that preach "economic determinism," defend those who Roosevelt called "economic royalists," and argue the "entire world" should be run by market forces. Judge Oberdorfer said he finds it more satisfying to write dissents than majority opinions, which is a good thing because the party in power is trying to "pack" the courts.

Judge Reinhardt rounded out the panel, initially noting that Judge Fletcher "was robbed" in Demore, adding "I've had that experience too." Reinhardt argued that conference attendees should reclaim the word liberal. Being liberal "is something that we shouldn't be ashamed of." "Moderate" and "progressive" are good terms, but there is nothing wrong with being "liberal." The words "liberal judge" are not dirty words to Judge Reinhardt "and they shouldn't be to anyone in this room." More significantly, Judge Reinhardt warned that a "moderate" legal era is nothing to hope for. "A simple return to the judicial philosophy of the last administration" and "bringing back the moderate era" of the Clinton years, is not sufficient. Whereas Clinton appointed liberals, moderates and conservatives, Judge Reinhardt explained, Republican Presidents only appointed conservatives. [He probably forgot about Justices Souter and Stevens, not to mention Blackmun or Warren.] Judge Reinhardt expressed his hope that the next president would appoint judges with a clear philosophy. Picking judicial nominees on qualifications and merit are not enough, as "we need judges who have a particular vision," such as Blackmun, Brennan, Marshall and Warren. Judge Reinhardt then returned to his critique of Clinton noting that the "most anti-civil liberties" pieces of legislation in U.S. history -- AEDPA, immigration reform, and the Prison Litigation Reform Act -- were signed into law by President Clinton. He explained that liberals have to understand "what the Federalist Society has done." The aim of ACS, in his view, should not be to "replace the conservative era with a moderate, mushy, middle-of-the-road era." Rather, it was time for a truly liberal era.
Thanks again to my correspondent for these reports.
Posted at 20:49 by Howard Bashman



"Ill. Gov. Wants COLA Lawsuit Dropped": The Associated Press has this report from Chicago. Well, there's always the UNCOLA.
Posted at 19:22 by Howard Bashman



"Misguided Libertarians Are Hindering War On Terrorism": Stuart Taylor Jr. today has this essay online at National Journal.
Posted at 17:25 by Howard Bashman



"Calif. Court May Decide Davis' Future": David Kravets of The Associated Press has this report. You can view the document that today initiated the governor's own court challenge to the recall election at this link (via FindLaw).
Posted at 17:22 by Howard Bashman



"Gay issues draw straight attention; From court to TV, a summer of notice": You can access here the cover story of today's issue of The Philadelphia Daily News.
Posted at 16:48 by Howard Bashman



En banc First Circuit is evenly divided on allowing qualified immunity for unconstitutional prison strip searches: You can access at this link today's order of the U.S. Court of Appeals for the First Circuit affirming by an equally divided court the trial court's grant of qualified immunity. The order is followed by opinions in support of and opposition to that result. The original three-judge panel in the case had unanimously reversed the trial court's grant of qualified immunity. The three-judge panel consisted of two senior First Circuit judges (one of whom wrote the panel's unanimous opinion) and Circuit Judge Bruce M. Selya. Interestingly, today Judge Selya wrote the opinion in support of affirming the trial court's result. I have not yet had a chance to look at Judge Selya's opinion today to see if it contains any explanation for his apparent change of views.
Posted at 14:52 by Howard Bashman



"Is VeriSign Liable for Loss of Sex?" I don't make up these headlines; I just quote them.
Posted at 14:48 by Howard Bashman



Quiet yet active: Today's edition of The New Haven Register reports here that "Yale bomb probe 'active' but 'quiet.'"
Posted at 14:45 by Howard Bashman



"Liberal legal elite plans comeback; Federal judges, Hillary Clinton urge lawyers to fight for cause": MSNBC's Tom Curry today has a very interesting article on this weekend's American Constitution Society national convention. Curry reports:
Probably the most polemical speech of the weekend gathering came from appeals court judge Stephen Reinhardt. The words "liberal judge" are not "dirty words," Reinhardt declared. "They're not to me and they shouldn't be to anybody in this room."
Also, be sure to read today's Washington Post article entitled "Dancing? It's Good for the Constitution. Janet Reno and Friends Try An Unconservative Approach."
Posted at 14:00 by Howard Bashman



Ninth Circuit considers future of "World's Scariest Police Chases": Today a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a very interesting decision involving the question whether a police officer can use deadly force against an otherwise nondangerous felony suspect simply because a chase of that suspect becomes dangerous. The majority answered that question in the negative. As Ninth Circuit Judge Stephen Reinhardt explains in his concurring opinion:
I join fully in Judge Fletcher's opinion for the court, on the understanding that officers may not use deadly force against an otherwise nondangerous felony suspect simply because a chase of that suspect, high-speed or otherwise, would become or does become dangerous. Rather, as I understand the controlling law, if a high-speed chase of a nondangerous felony suspect would be, or becomes, dangerous, the officers must terminate the chase. In other words, the chase itself cannot create the danger that justifies shooting a suspect who, under Garner, may not otherwise be shot. I do not understand the out-of-circuit cases discussed in Judge Fletcher’s excellent opinion and in the dissent to hold otherwise.
Circuit Judge Ronald M. Gould dissented in an opinion that begins:
I cannot accept the majority's conclusion that Haugen, a visibly disturbed felon willing to do almost anything to avoid capture, did not pose "a significant threat of death or serious physical injury" to others when he attempted a high-speed vehicular flight from police through a suburban residential neighborhood on a Sunday afternoon. Nor can I accept the majority's holding that--because police can reduce the danger of a high-speed chase by letting a felon escape--police may never use deadly force to protect the public from the danger posed by a felon's reckless flight from police in a vehicle. The majority's sweeping holding, which promises an easy escape to any felon willing to threaten innocent lives by driving recklessly, is indefensible as a matter of law and policy, and it conflicts with our sister circuits' holdings that police officers do not violate the Fourth Amendment by using deadly force to stop a fleeing felon who appears likely to drive an automobile with willful disregard for the lives of others. The majority opinion creates a new obstacle to effective law enforcement in the western United States. It threatens the innocent to protect the guilty.
You can access the complete ruling at this link.
Posted at 13:28 by Howard Bashman



To access today's installment of "20 questions for the appellate judge": Click here, or scroll down this page a bit. This month's interview is with Eleventh Circuit Judge Gerald Bard Tjoflat.
Posted at 12:28 by Howard Bashman



Wisconsin Federal Nominating Commission issues recommendations on who should fill upcoming Seventh Circuit vacancy: See the press releases available here and here. Although this is not good news for Deputy Solicitor General Paul D. Clement (who appears to be on President Bush's short list), the White House of course has the final say and retains the right to nominate someone other than those whom the commission has recommended.
Posted at 12:12 by Howard Bashman



Federal judicial confirmation news and commentary from here and there: With the U.S. Senate out on its August recess, the amount of news is scant, but there's commentary aplenty.

The Atlanta Journal-Constitution today contains an editorial entitled "Dems' judicial filibusters needed." The newspaper also contains an op-ed from U.S. Senator Saxby Chambliss (R-GA) entitled "Nominee's traits shout 'ideal judge.'"

From Alabama, The Mobile Register reports here that "GOP tactics may have cost Pryor one vote." On Saturday, The Montgomery Advertiser reported here that "Bush wags finger at Senate for blocking Pryor" and here that "Alabamians mixed on Pryor's chances; A filibuster halts Attorney General Bill Pryor's nomination to federal court." And today's issue of The Birmingham News contains an editorial entitled "Pryor restrained: Democrats wrong to hold up judicial confirmations."

Elsewhere, The Pittsburgh Tribune-Review contains an editorial entitled "Obstruction of justice: The piddling continues." The Las Vegas Review-Journal contains an editorial entitled "It's not about religion; Confront Senate obstructionists on the real issue." The Manchester Union Leader contains an editorial entitled "Stymied in the Senate: Democrats are winning the big battles." The Ledger of Lakeland, Florida contains an editorial entitled "Compromise on Judges." And The Binghamton Press and Sun-Bulletin contains an editorial entitled "No clear sailing for any nominee."

In news reports from elsewhere, The Baltimore Sun today reports that "Senate’s Frist deft at dodging stalemate; Strategic compromise gets bills to committee." The final part of the article addresses the subject of judicial confirmations. And The Pittsburgh Post-Gazette yesterday reported that "Santorum advises three federal bench prospects to skip review by county bar group."
Posted at 11:05 by Howard Bashman



This morning's U.S. Supreme Court order list: You can access this morning's U.S. Supreme Court order list at this link. Of interest, the list contains an order providing:
The motion for divided argument of plaintiffs in Nos. 02-1674, 02-1727, 02-1733, 02-1734, 02-1753, 02-1755, and 02-1756 is granted, except that 60 minutes are allotted for argument on Title I and Section 213 of the Bipartisan Campaign Reform Act of 2002, and 50 minutes are allotted on the remainder of the challenged provisions. The motion of Emily Echols, et al., and Barret Austin O'Brock for divided argument is granted limited to 10 minutes for plaintiffs. The motions for divided argument of plaintiffs in Nos. 02-1675, 02-1740, and 02-1747 are denied. The motion of the Solicitor General for divided argument is granted.
Accompanying the order list, Denise McNerney, Merits Clerk at the Supreme Court, sent the following message to counsel in the case:
Please open the attached file for the order regarding oral argument in 02-1674, et al. Feel free to contact me if you have any questions. In regard to the seating of arguing counsels' guests the number allowed has not yet been determined by the Marshal of the Court. We do know that the number of guests allowed per counsel will be greater than the usual. My RECOMMENDATION IS: arguing counsel for the plaintiffs should choose 8 guests and prioritized them. Arguing counsel for the defendants should choose 15 guests and prioritize them. I think these are good nos. to work off of. I will inform you of how many guests will be allowed by August 19th.
Of course, more seats for guests of counsel may translate into fewer seats available to members of the Bar of the Court and the general public. But that's sometimes how life goes in the big city.
Posted at 10:50 by Howard Bashman



Sad and happy news: George Mason University School of Law Professor David E. Bernstein's blog, "Bernsteinblog," has been shut down. He's joining "The Volokh Conspiracy," where -- as he helpfully points out here -- you can access just his posts by using this link. (Tyler Cowen fanatics -- you know who you are -- can experience all Tyler all the time via this link.) Even though "Bernsteinblog" is now defunct, I shall always value the lead position that "How Appealing" has on its blogroll.
Posted at 10:49 by Howard Bashman



Justices Sandra Day O'Connor and Ruth Bader Ginsburg to speak at Philadelphia Bar Association quarterly luncheon meeting on October 23, 2003: You can be sure, in my role as co-chair of the Appellate Courts Committee of the Philadelphia Bar Association, that I'll be present to bring the readers of "How Appealing" a first-hand report on the day's events.
Posted at 10:03 by Howard Bashman



Today is "20 questions" day here at "How Appealing": The brand-new installment of "20 questions for the appellate judge" was posted online here just after midnight this morning. This month's appellate judge interviewee is Eleventh Circuit Judge Gerald Bard Tjoflat. No matter what your areas of interest happen to be, I guarantee you'll find reading this month's interview to be well worth the effort.

This marks the seventh monthly installment of this Web log's "20 questions" feature. Two other appellate judges have volunteered to participate as interviewees in September and October 2003, but additional volunteers are needed to keep the "20 questions" feature going into the future. Volunteering could not be easier -- it simply requires sending me an email. Additional details on the "20 questions" feature are available at this link.
Posted at 09:11 by Howard Bashman



In Monday's newspapers: In The Washington Post, Charles Lane's "Full Court Press" column today is entitled "Thinking Outside the U.S." From the Style section comes a report headlined "Dancing? It's Good for the Constitution. Janet Reno and Friends Try An Unconservative Approach." And an editorial is entitled "The Moussaoui Law."

The New York Times reports here that "California Governor Will Sue to Delay Vote on His Ouster." An article reports that "Obese People Are Taking Their Bias Claims to Court." In local news, "A New Breed of Sex Shops, but the Same Fight." In business news, "Phone Access Charges Scrutinized." An editorial is entitled "Another Bad Initiative in California." And columnist Bob Herbert has an op-ed entitled "Jailing Immigrants."

Finally for now, The Christian Science Monitor contains an editorial entitled "Terror and the Constitution."
Posted at 08:46 by Howard Bashman



"Playing the Religion Card": This editorial appears in today's edition of The New York Times.
Posted at 08:45 by Howard Bashman



In the news: The lead front page story in this morning's edition of The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, is a lengthy article from Shannon P. Duffy reporting on my pro bono victory Friday in the U.S. Court of Appeals for the Third Circuit. The case is an attorney disciplinary matter in which the Third Circuit appointed me to serve as amicus curiae in support of affirmance of an en banc ruling of the U.S. District Court of the Eastern District of Pennsylvania imposing a thirty-month reciprocal suspension from the practice of law on an attorney who in the past has run for election to the Supreme Court of Pennsylvania and who is the brother of a currently-serving federal district judge in Philadelphia.

You can access the Third Circuit's 2-1 ruling from Friday at this link. You can access the district court's en banc opinions here (majority opinion), here (dissenting opinion), and here (additional dissenting opinion).

You can access at this link the appellate brief that I filed in the Third Circuit. One especially gratifying aspect of Friday's decision was the extent to which my brief appears to have proved helpful to the Third Circuit's majority in reaching its decision. Shannon Duffy's article today is not yet freely available online, but I will link to it if it ever is. His report on the Third Circuit oral argument back in December is available here.
Posted at 08:25 by Howard Bashman



Decalogue blogging gets results? "How Appealing" reader Warren Richey of The Christian Science Monitor has an article in Monday's newspaper headlined "Ten Commandment challenges spread; Disputes have arisen in 14 states. Many rulings go against the displays." I was hoping someone in the major media would pick up on this story after all the coverage I've been providing online here.
Posted at 00:20 by Howard Bashman



"Sodomy Ruling Spurs Challenges To Military's Policy on Gays": Charles Lane has this front page article in Monday's edition of The Washington Post.
Posted at 00:17 by Howard Bashman



20 Questions for Circuit Judge Gerald Bard Tjoflat of the U.S. Court of Appeals for the Eleventh Circuit: "How Appealing" is very pleased that Circuit Judge Gerald Bard Tjoflat of the U.S. Court of Appeals for the Eleventh Circuit has agreed to participate in this Web log's recurring monthly feature, "20 Questions for the Appellate Judge."

Judge Tjoflat joined the former U.S. Court of Appeals for the Fifth Circuit in November 1975 at the age of 45. He attended undergraduate school at the University of Virginia and the University of Cincinnati. He began law school at the University of Cincinnati Law School, but his studies were interrupted by military duty when he served for two years in the U.S. Army as a special agent of the Counterintelligence Corps. Thereafter, he completed law school at Duke University School of Law, receiving his degree in 1957. Following law school, he worked as a lawyer in private practice in Jacksonville, Florida for just over ten years.

In 1968, Judge Tjoflat was appointed to the bench of the Circuit Court for Florida's Fourth Judicial Circuit. In October 1970, he was nominated and confirmed to fill a new judgeship on the U.S. District Court for the Middle District of Florida, where he served for a little more than five years before joining the former Fifth Circuit. On October 1, 1981, Judge Tjoflat was reassigned to serve on the newly-created U.S. Court of Appeals for the Eleventh Circuit, where he served a full term as chief judge from 1989 through 1996. Judge Tjoflat has his chambers in Jacksonville, Florida, and the Eleventh Circuit has its headquarters in Atlanta.

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

1. The July 1993 issue of The ABA Journal contained your article entitled "More Judges, Less Justice." For those many readers who may not be familiar with that article, can you briefly describe your thesis and what you rely on in support of your conclusions. Now, some ten years later, with even more cases pending before the U.S. Courts of Appeals, do you still adhere to those views, and why or why not?

The focus of "More Judges, Less Justice" is on the federal courts, although my thesis applies to state courts as well. My thesis is that as we increase a court of appeals' size, we decrease the stability of the rule of law within the judicial circuit. In some areas of the law, the decrease may be exponential. As the law becomes less predictable, more law suits are filed and in time more judges are needed to try them. Since more lawsuits generate more appeals, more appellate judges are required. As judges are added to a court of appeals, the potential for conflicting decisions necessarily increases. To keep this potential to a minimum, the judges devote a portion of each day to reading the court's decisions. As additional judges come aboard, this task consumes more of a judge's time -- meaning that the time devoted to working on the cases assigned to the judge diminishes. In theory, a court of appeals can become so large and the judge's need to monitor the court's decisions can become so burdensome that the creation of one more judgeship to meet the demand (for more judges) actually decreases the number of cases the court is able to decide in, say, one court year. The solution to this problem lies with Congress. Congress must recognize that because there is a size limit beyond which the courts of appeals cannot be expanded, the Article III courts are a scarce dispute resolution resource. Congress must therefore remove from the courts' jurisdictions disputes that could be resolved more efficiently in other forums.

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

The answer to this question will vary from judge to judge. What I like most is writing opinions and teaching. And I get great joy interacting with my elbow law clerks. Each August, when the new law clerks come aboard, is like the fall semester of law school. They have a new professor and I have a bunch of new students.

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

This is a difficult question to answer because in thirty-five years on the bench, I have come to know some great judges. But you ask me to pick one, and I select the late Justice Byron R. White. Our friendship began when the late Judge Edward J. Devitt asked us to serve with him on the committee to select the recipient of the Devitt Distinguished Service to Justice Award. To borrow an expression one doesn't hear much these days, Byron White was a man's man. Rock solid, a giant of a human being. You would want him in your fox hole when the bullets started flying.

4. How did you come to President Richard M. Nixon's attention as a potential nominee to serve on the U.S. District Court for the Middle District of Florida, and how did you come to President Gerald R. Ford's attention as a potential nominee to serve on the former U.S. Court of Appeals for the Fifth Circuit?

I don't know how I came to President Nixon's attention; that I was one of the few Republican lawyers in North Florida was no doubt a factor. I came to President Ford's attention through the good efforts of several of his supporters in this area of the State.

5. Your official Federal Judicial Center biography indicates that President Ford nominated you to fill a vacancy on the former Fifth Circuit on November 3, 1975 and the U.S. Senate confirmed you to serve as a U.S. Circuit Judge just seventeen days later, on November 20, 1975. In what ways did the federal judicial confirmation process differ in 1975 from what it is today? Also, which approach — then or now -- do you find preferable, and why?

I was in the midst of a five-month securities fraud trial in Ocala, Florida when President Ford nominated me to the Fifth Circuit. Two days before my confirmation hearing, John Duffner of the Department of Justice (whose job it was to usher nominees through the confirmation process) called me on a Monday to say that my hearing would be on Wednesday at 10:00 a.m. When I arrived at the Senate Judiciary Committee hearing room at 9:30 on Wednesday, a committee staff member told me that my hearing had been moved to a room in the basement of the Capitol. I was met there by Senator Roman Hruska. The hearing was held in a small storage room; he presided as a subcommittee of one. In a few minutes -- after informing me of the results of the investigations conducted by the FBI and the ABA Standing Committee on the Federal Judiciary -- he took me to the Senate Cloakroom where he told me to wait. In what seemed like five minutes he returned to say that I had been confirmed. I am sure that others who came to the bench prior to the late 1970s had similar experiences. Today's process is intolerable, inexcusable. It deters scores of highly qualified lawyers from even considering an appointment to the Article III bench. A short time ago, only three lawyers applied for a district court judgeship in one of the most desirable locations in the Eleventh Circuit. When a bankruptcy judgeship became available in essentially the same location, the list of applicants was lengthy and contained several of the State's most outstanding lawyers. That the pool of applicants for bankruptcy judgeships has been far superior to the pool of applicants for Article III judgeships in the Eleventh Circuit has been the trend for more than a decade. The reason for this is obvious. Bankruptcy judges are appointed by the court of appeals; they don't have to undergo Senate confirmation.

6. Some court-watchers have said that the judges serving on the Eleventh Circuit today are much more conservative when it comes to civil rights claims than were the judges who served during the last years of the former Fifth Circuit and the early years of the Eleventh Circuit. As someone who has served on the Eleventh Circuit for nearly thirty years, have you perceived any shift in the court's ideological center of gravity, and, if so, to what do you attribute the shift?

In answering this question, one must bear in mind that the composition of the civil rights docket over the past thirty years has changed considerably. When I came to the bench in 1970, the district courts were flooded with school desegregation cases, class actions challenging the conditions of state jails and prisons and state mental institutions, and voting rights cases -- cases that received a great deal of public attention for lots of reasons, one being that they challenged long-standing societal structures. Those cases have all but disappeared from our dockets, the changes they sought having been accomplished. Court observers say that the judges responsible for those changes were "liberal." I would say that the judges were simply good judges, who approached the task at hand with considerable courage and the desire to follow the law. Nowadays our dockets are crowded with Title VII employment discrimination cases and damages actions brought against deputy sheriffs and jailors under 42 U.S.C. sec. 1983. Some contend that the results in those cases indicate that the court has become more conservative. I disagree for this reason: were today's judges called upon to handle the high-profile cases of yesteryear, they would bring to the task the same courage and devotion to the rule of law as their forebears. Regarding the center-of-gravity matter, my experience has been that when a judge seemingly leans far to the left or to the right, someone leans in the opposite direction -- such that the center of gravity tends to move one way or the other perhaps a tad or two.

7. In 1978, Congress increased the number of active judges authorized to serve on the former Fifth Circuit from fifteen to twenty-six. Less than two years later, the former Fifth Circuit was divided and the Eleventh Circuit came into existence. What were the arguments for and against dividing the former Fifth Circuit, and which of those proved accurate and which did not?

It took less than six months for the judges of the Fifth Circuit to conclude that a "jumbo court" of twenty-six would not work. Twenty-six judges -- try as hard as they might -- cannot maintain a stable, predictable rule of law. In addition, a court of twenty-six is far less efficient than a court of fifteen. Appellate judges have to be able to "mind read" one another if they are to operate efficiently. Twenty-six judges coming and going (with that number normal attrition keeps changing the court mix) cannot mind read one another. I think I explained that in "More Judges, Less Justice." Our present court of twelve (although we are one judge short at this moment) can do far more work than the Old Fifth could do with twenty-six. I could write a book on this subject.

8. What is your view on whether the Ninth Circuit -- which now is authorized to have twenty-eight active judges and may soon be expanded to thirty-five active judges -- should be split into two or more smaller circuits, is there a particular manner of dividing the Ninth Circuit that you view as best, and to what extent does having experienced the division of the former Fifth Circuit influence your views?

In 1996, I appeared before the full Senate Judiciary Committee at a hearing on a bill to split the Ninth Circuit. I was there at the behest of the Committee because I had been a member of the Old Fifth, had testified as a designated representative of the Old Fifth (along with Judge John Godbold) before the House Judiciary Committee in favor of a bill to split the Old Fifth Circuit, and had significant experience with a jumbo court. In response to a question from Senator Heflin, "What should we do with the Ninth Circuit," I said, "split the circuit." What should we do with California, he asked. I said that I would divide California in two; I expressed no opinion as to which states would be linked to the two halves. Then Chief Judge Wallace said that this wouldn't work, because California law might be applied differently in the two resulting circuits. That could be avoided I said if legislation were passed enabling the courts of appeals to certify questions of California law to the California Supreme Court -- a device that has been available to the Eleventh Circuit in each of its states, Florida, Georgia and Alabama. I am convinced that the benefits that would accrue from splitting the Ninth Circuit -- not the least being judicial and parajudicial efficiency and stability and predictability of the rule of law -- would far outweigh the temporary inconvenience the split would involve.

9. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates you wish were applying but haven't been? Also, are you adhering to the "Law Clerk Hiring Plan" that supposedly has the overwhelming support of federal appellate judges, and why or why not?

I am adhering to the "Hiring Plan." What qualities do I look for? An unquenchable thirst for the law. A zest for tackling legal problems objectively -- those with hidden agendas need not apply. I expect them to be like leeches -- take everything I might have to offer and leave here with a full belly, raring to go.

10. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is in the process of approving a new rule that would allow citation to unpublished, non–precedential decisions in briefs filed in all federal appellate courts. Where do you stand on the question of allowing citation to "unpublished" opinions; do you believe that federal appellate court panels should be able to designate some of their rulings as "non-precedential" upon issuance, or should the precedential value of an opinion be left to later panels to determine; and why?

"Unpublished" opinions are supposed to be non-precedential because they do not plow new ground; rather, they simply apply settled law to a set of facts. It does not bother me when a litigant cites an unpublished opinion. In nearly every situation, the opinion adds nothing to the dialogue. In short, I have no strong views regarding the matter.

11. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is also in the process of approving a new rule that would end the Eleventh Circuit's practice of counting recused judges, in essence, as having voted against granting a petition for rehearing en banc. Do you support this proposed change, and do you believe the Eleventh Circuit currently grants rehearing en banc too frequently, too infrequently, or about as often as it would occur if whether to grant rehearing en banc were solely up to you?

In my view, we do not rehear too many cases en banc. The law of the circuit is fairly stable -- remarkably so, I would say -- which explains why we grant oral argument in less than 30 percent of our cases. I am in favor of the rule that would not count disqualified judges in tallying the en banc votes. Thus, if three of twelve judges are disqualified, five judges should be able to en banc a case.

12. Is the salary now paid to federal appellate judges too low? Has this been the case during your entire tenure as a federal appellate judge? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

The salary is atrociously low; there can be no dispute about that. It was too low when I came to the Fifth Circuit in 1975. Congress had done nothing to increase it for over five years. I have given no thought as to exactly what the salary should be, but I can say that in light of the sensitive work we do and the magnitude of our responsibilities to the public we serve, the salary should be at least as high as the average salaries paid to the full law professors at our nation's leading law schools, which exceeds $200,000.

13. You entered the judiciary as a state court trial judge. Recently, the method of choosing judges by election has come under much criticism from various groups, and of course the federal model of selecting Article III judges has experienced challenges of its own. If you were put in charge of picking the most sensible method of selecting judges for a State or the Nation, what method would you choose?

The Missouri Plan (created by the American Judicature Society and first adopted in Missouri) provides a far better method for selecting judges than the ballot box. That plan calls for a commission to submit a slate of qualified candidates to the governor, appointment by the governor (from that slate), and an uncontested election near the end of the term in which the electorate votes on the judge's retention in office. In some States, the responsibility for choosing judges is shared by the executive and legislative branches, as in the Federal model. I lack sufficient information to form an opinion as to whether such method of selection is better than using the ballot box.

14. You have been described by someone who has seen many appellate arguments throughout the United States as perhaps the most aggressive questioner at oral argument now serving on the federal appellate bench. What do you seek to accomplish at oral argument, in what ways do you find oral argument helpful and unhelpful, and is there anything an appellate advocate can do, either at oral argument or earlier, to stay on your good side while at the podium?

My purpose is to get to the bottom of the case -- to dismantle the case, to squeeze it down to size. Too many cases -- especially civil cases in which the issues have been framed by notice pleading -- come to us in a state of disarray because the district judge failed to narrow the issues. Lawyers should be mindful that a court of appeals engages in two discrete functions: correcting trial court error and law making. When the thrust of an appeal is that the trial court erred in the manner in which it conducted the pretrial proceedings or the trial, we need to know the record intimately; only then can we determine with confidence whether an error prejudiced the appellant's "substantial rights." Nothing is more frustrating for an appellate judge than being confronted by counsel who do not know the record. Knowing the record is vital; yet, many lawyers are unable to tell us during the course of an argument whether, for example, they objected to the jury instruction they are challenging on appeal. When the appeal involves the trial court's application of the rule of decision and asks the court to fashion a new rule of substantive law, we need all the help we can get. We are looking for a sound rationale, one that could command the respect of the legal profession and in some cases the public at large. I expect appellate counsel to have thought about this before putting pen to paper. Counsel's brief should contain the ingredients of a good opinion and the oral argument should expound on the same theme. In questioning counsel in such cases, I am testing counsel's rationale -- to determine whether it makes sense. You ask what counsel can do to stay on my "good side while at the podium." My response is be prepared and then articulate a basis for decision that makes sense and could withstand critical scrutiny by the lawyers and judges who will have to implement our mandate and the academy that monitors our work. No judge wants to fashion a rule -- whether substantive or procedural -- that won't work in the real world.

15. I see that Jacksonville, Florida has recently received a very attractive brand new federal courthouse. Are you pleased with your new working quarters, why was a new courthouse needed there, and could you share some of the advantages and perhaps even disadvantages that a brand new federal courthouse presents over one that has been in existence for many years?

We have a new courthouse, which was badly needed. The old courthouse was built seventy years ago, as a post office, federal office building, and courthouse. Over the years, the federal agencies left one by one until all that remained were the courts and a slimmed down post office. Had the new courthouse not been built, some of our courts and clerks offices would have been moved to rented quarters at great cost to the government. The new courthouse eliminates the serious security problems that faced us in the old building and permits all court and parajudicial personnel, including the U.S. Attorney's office (which had moved out of the old building some time ago), to be under one roof once again.

16. While reporting on a very interesting opinion that you recently delivered involving Major League Baseball's antitrust exemption, Jonathan Ringel of The Fulton County Daily Report wrote that you "reportedly flirted with playing pro [base]ball in the 1940s." Ringel's article went on to note, "But a 2001 story in his hometown newspaper, the Florida Times-Union in Jacksonville, reported that in 1948, Tjoflat attended the University of Virginia on a partial baseball scholarship. The story quoted Tjoflat, a pitcher, as saying, 'I worked out one summer with the Cincinnati Reds at the old Crosley Field.... The Reds made me an offer, but you had to break up your schooling in those days. I opted not to do that.'" Here's your chance to put all speculation to rest about your "flirtation" with a possible career in baseball, and are there ever days when you wonder if you made the right choice?

Flirting with a baseball career was heady stuff. I was wisely counseled to end the flirtation. For one thing, my curve ball (we didn't throw "sliders" in those days) didn't have much snap. For another, the chance of injuring my throwing arm was too great. The multitude of procedures now available to rehabilitate an arm -- like "Tommy John" surgery -- were not even in their infancy.

17. You have been involved in the Boy Scouts of America organization for quite some time. Recently, the Supreme Court of California adopted a rule that will require state court judges who are members of the Boy Scouts and who are selected to hear cases involving workplace discrimination against homosexuals, cases involving homosexual adoption, or cases in which the sexual orientation of the litigants is in issue either to recuse themselves or to notify litigants of the existence of this basis on which to seek recusal. Do you agree as a matter of policy with the Supreme Court of California's new recusal procedures, and do you think that judges outside of California who belong to the Boy Scouts voluntarily should follow similar guidelines?

Boy Scouts of America is the finest program for young boys I have ever seen. What would our society be like if most boys became Eagle Scouts? I am so biased in favor of Scouting -- for girls as well as boys -- that I would have to recuse in a case challenging the implementation of Scout Oath and the Scout Law.

18. In 1991, you wrote an article entitled "The Untapped Potential for Judicial Discretion Under the Federal Sentencing Guidelines: Advice for Counsel." Recently, the U.S. Congress passed and President George W. Bush signed into law the AMBER Alert bill containing the so-called Feeney Amendment. As I understand it, that amendment greatly curtails the discretion available to trial judges under the U.S. Sentencing Guidelines, and on that basis a number of federal judges have denounced the amendment. Putting aside any question of the amendment's legality, what are your views on the amendment as a matter of policy?

In 1984, as part of the Comprehensive Crime Control Act, Congress enacted the Sentencing Reform Act, which committed to the United States Sentencing Commission the task of drawing guidelines for use in sentencing. I'd rather not express a view as to the merits of the Feeney Amendment, but I will say this: Congress should avoid circumscribing the Commission's jurisdiction with ad hoc legislation.

19. How did you come to be one of two sitting federal appellate judges who testified in December 1998 before the House Judiciary Committee on the topic "The Consequences of Perjury and Related Crimes" in connection with possible impeachment proceedings against President Clinton? And, in retrospect, would providing that sort of testimony to a congressional committee be something that you would do again if asked, and why or why not

I had authored the only appellate opinion (I was told) that addressed the question of whether perjury in a civil case is as reprehensible as perjury in a criminal case, United States v. Holland, 22 F.3d 1040 (11th Cir. 1994). During the months that led up to the impeachment hearings before the House Judiciary Committee, columnists had referred to the opinion in several op-ed pieces. The Committee chair eventually asked me to appear before the committee. I agreed with the understanding that I would neither be asked nor would I suggest what the Committee should decide. My testimony would be limited to commenting on how perjury obstructs justice. In my opening remarks, I said that for justice to be done in a case three things are required: (1) a fair and impartial judge; (2) lawyers who adhere to the highest ethical and professional standards; and (3) witnesses who testify truthfully. I likened these requirements to a three-legged stool. If one leg breaks, the stool collapses. You ask whether I would provide this sort of testimony to a congressional committee again. I assume that you are not referring to a House Judiciary Committee considering a bill to impeach the President. My answer is that for several years, going as far back as the mid-1970s, I appeared before the House and Senate Judiciary Committees, or subcommittees thereof, on numerous occasions to testify about a variety of matters affecting the administration of justice in the courts of the United States. I would welcome the opportunity to appear in such capacity again.

20. What do you do for enjoyment and/or relaxation in your spare time, where are your favorite places to go fishing in the Eleventh Circuit, and who are the best anglers serving on the Eleventh Circuit and the federal district courts under its jurisdiction?

I love the game of golf. I also love to fish. The best fishermen on our court by far are Joel Dubina and Lanier Anderson. The district courts have several great anglers: Bill O'Kelley, Owen Forrester, Jack Camp, Tom Thrash, Charles Pannell, and Chris Hagy. The best places in the circuit in Florida for salt water fishing are Suwannee, Homosassa, Florida Bay, and most anywhere along the east coast. For fresh water fishing, I would go anywhere Lanier Anderson or Bill O'Kelley took me in Georgia; in Alabama, I prefer Joel Dubina's bass pond.
Posted at 00:01 by Howard Bashman



Sunday, August 03, 2003
An admittedly conservative "How Appealing" reader reports on this weekend's American Constitution Society national convention: A frequent "How Appealing" reader, and admitted conservative, who attended the convention sent along the following email this evening:
The American Constitution Society (ACS) was launched as a liberal, or "progressive," counter to the Federalist Society. (The word "liberal" was almost completely absent. Even the convention organizers repeatedly spoke of the need to advance "progressive" and "moderate," rather than "liberal," ideas and causes.) This weekend's first national convention was packed -- over 550 people registered, and walk-ins were turned away. Attendees were a mix of private and public interest attorneys, academics and students from around the country. Although there was minimal Federalist Society representation at the conference, the specter of the "right-wing conspiracy" was everywhere. Speakers regularly mentioned the need to counter the pernicious influence of the right by organizing and articulating a coherent progressive legal agenda. In her greeting to conference goers, acting ACS executive director Lisa Brown explained one goal of the conference was to arm attendees with intellectual ammunition and demonstrate that "rigorous legal thinking can properly take into consideration the fundamental values of respect for human dignity, protection of individual rights and liberties, genuine equality and access to justice." (These four principles were printed on the ACS banners hung in every room.

In many respects, ACS' first convention seemed like the annual FedSoc lawyers conventions. There was an impressive roster of speakers spread across several days of keynotes, plenary sessions, and break-out panels covering a range of legal topics. High-profile veterans of the Clinton Administration joined prominent judges and academics on a wide variety of panels. Yet fairly early on some key differences, aside from ideology, were apparent. From the start it was apparent that the ACS has a more overt emphasis on activism than its conservative cousin. Special sessions were reserved on the last day for organizing chapters. At times, the tone focused as much on how to advance a "progressive" vision of the law as what that vision should entail. At many panels, questioners did not challenge the substance of speaker remarks so much as ask "how do we advance this cause" or "how do we communicate our message."

Most of the sessions were fairly substantive, and some were quite interesting and provocative. Whereas at Federalist Society events it is traditional to represent a wide range of contrasting views on panels, there was far greater uniformity in the views presented at the ACS convention. All told, there were only a handful of speakers -- six at my count -- who could be characterized as right of center -- and there was never more than one such dissenter on a single panel. As one might expect, the sessions with token conservative or libertarian were more engaging and intellectually robust than the others -- and focused more on the substance than on how to advance a given viewpoint.

While some speakers and participants expressed a siege mentality -- the biggest applause line in Senator Hillary Clinton's speech was the charge "there really is a vast right-wing conspiracy" -- the ACS conference had no difficulty attracting prominent support. The conference's corporate sponsors included law firms Baron & Budd, Boies Schiller, Jenner & Block; Lieff Cabraser, Sutherland Asbill & Brennan, Akin Gump, Crowell & Moring, Jones Day, Ropes & Gray, Hogan & Hartson, MoFo, Sidley Austin, Weil Gotshal & Manges and Dickstein Shapiro. Fannie Mae, David Kendall, and the AFL-CIO were also among the events sponsors, and numerous left-of-center non-profits joined law firms at the conference Job/Networking Fair.

By the end it was clear that the organizers considered the convention a great success. They had an impressive turnout and produced a high-quality program, even if it was more self-consciously activist than its conservative forerunner. It will be interesting to see whether future ACS conferences seek the same balance of intellectual rigor and activism, or whether they shift in one direction in the other. Only time will tell.
My correspondent has promised to share additional thoughts about this weekend's ACS national convention in the near future, so stay tuned.
Posted at 23:10 by Howard Bashman



What should a three-judge U.S. Court of Appeals panel do when confronted with conflicting on-point authority previously issued by three-judge panels from its own court? Fourth Circuit Judge Paul V. Niemeyer helped me launch this topic Friday night thanks to a very interesting dissenting opinion that he issued earlier that day.

In response to my call for reader views concerning Judge Niemeyer's approach, many have emailed. Here are some of the most interesting responses that I have received. A reader who follows the Eighth Circuit closely writes:
Judge Niemeyer's approach is the one I'm accustomed to. In the Eighth Circuit, our rule is that when a three-judge panel is faced with two conflicting lines of Eighth Circuit precedent (and there is no subsequent Supreme Court or en banc case to clear things up), the panel is powerless to resolve the conflict because only the en banc court or the Supreme Court can overrule a prior panel opinion. But, the three-judge panel is free to choose which line of cases to follow. See, e.g., Graham v. Contract Transportation, Inc., 220 F.3d 910, 914 (8th Cir. 2000) (citing Kostelec v. State Farm Fire and Casualty Co., 64 F.3d 1220, 1228 n.8 (8th Cir. 1995)).
Law Professor Arthur Hellman emails:
I was pretty sure that Judge Niemeyer's approach is not unique. Thanks to the marvel of on-line legal research, I was able to find a law review article (one of my own) which cited the relevant authority, which is from the Eighth Circuit. In Precedent, Predictability, and Federal Appellate Structure, 60 U. Pitt. L. Rev. 1029, 1038 (1999), footnote 42 reads as follows:
If one panel decides a case in a way that is contrary to a prior ruling of the court, most circuits hold that the later decision will not be given precedential effect. See, e.g., Walker v. Mortham, 158 F.3d 1177, 1188 (11th Cir. 1998); Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996) (citing Finley v. United States, 82 F.3d 966, 974 (10th Cir. 1996)); United States v. Monaco, 23 F.3d 793, 803 (3d Cir. 1994); Paura v. United States Parole Comm'n, 18 F.3d 1188, 1189-90 (5th Cir. 1994). Only the Eighth Circuit allows panels to choose between conflicting lines of circuit precedent. See, e.g., Kilmartin v. Dormire, 161 F.3d 1125, 1127 (8th Cir. 1998). In the Ninth Circuit, a panel faced with an irreconcilable conflict between prior panel decisions "must call for en banc review, which the court will normally grant unless the prior decisions can be distinguished." United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (quoting Antonio v. Wards Cove Packing Co., 810 F.2d 1477, 1479 (9th Cir. 1987) (en banc)).
There is no elaboration of the underlying theory in the cited Eighth Circuit decision, so Judge Niemeyer's opinion may be innovative to that extent. I have not done further research to determine whether this is still the position of the Eighth Circuit.

It's great to have you out there trolling for decisions like this one that raise interesting issues about the operation of precedent.
Well thanks; it's great to be here.

A former law clerk to a judge on the U.S. Court of Appeals for the Fifth Circuit emails:
Thanks for the pointer to an interesting case. I agree with you that Judge Niemeyer's rule would invite chaos. I think it also fails on its own terms.

Judge Niemeyer's rule is that panels have the power to choose among conflicting prior cases. The problems is that *that* rule is itself contrary to precedent. On page 37, he cites a Fourth Circuit case, Booth v. Maryland, 327 F.3d 377, 382-83 (4th Cir. 2003), for the proposition that panels should follow the earlier of inconsistent prior controlling cases.

Although Judge Niemeyer explains he believes that panels have the *power* to overrule one another, he does not explain why that power should be used in contravention of the "prudential considerations" of maintaining the earlier-precedent-trumps rule of Booth. Whereas Judge Niemeyer gives many reasons why the majority's *substantive* rule of decision (the Lane case) should be jettisoned (e.g., 10 circuits disagree), there is no comparable discussion of why the Booth rule should also be discarded. The other circuits agree with Booth, and Judge Niemeyer's replacement rule would be quite novel.

One possible distinction is that the Booth rule is procedural (it's a rule about rules) and the Lane rule is substantive. However, I do not see why the weighty prudential considerations of certainty and consistency should apply any differently to procedural versus substantive rules.

In short, it appears that Judge Niemeyer would overrule Booth just because he would have decided its procedural holding differently. It is precisely this sort of chaos-inviting flip-flopping that makes me think the majority got this one right.
A reader who follows the Ninth Circuit closely emails:
Since you seem to be interested, Judge Kozinski proposed an interesting method for resolving circuit conflicts in Greenhow v. Secretary of Health and Human Services, 863 F.2d 633 (9th Cir. 1988). His approach sounds similar to the approach discussed by the dissenting judge in the 4th circuit case. The en banc court didn't take kindly to Judge Kozinski's suggestion and overruled his decision in United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc).

Thanks again for the great blog. How Appealing is truly indispensable.
Thanks much for writing and for those kind words.

My own view, for what it is worth, is that the Solicitor General's Office should ask the Fourth Circuit to rehear en banc the adverse decision the federal government received Friday in McMellon v. United States. Because the substantive rule that the Fourth Circuit panel's majority employed in deciding against the federal government is quite the minority view, the case is a very strong candidate for rehearing en banc. My further hope is that if rehearing en banc is granted, the en banc court will resolve not only the substantive issue but also the very interesting procedural point that Judge Niemeyer raised in his dissent. I personally favor the rule that the first-in-time precedential three-judge panel opinion to resolve a question definitively controls and that any subsequent contrary three-judge panel rulings must be disregarded. But Judge Niemeyer has raised some interesting arguments in opposition to the commonly-accepted position that I favor, and I hope that the en banc Fourth Circuit will take the time to address the pluses and minuses of Judge Niemeyer's proposed approach in addition to resolving the substantive question that the case presents on the merits.
Posted at 22:05 by Howard Bashman



On deck: In just slightly over three hours from now, the August 2003 installment of "20 questions for the appellate judge" will be posted online here at "How Appealing."
Posted at 20:58 by Howard Bashman



"Diaz granted leave of absence; Suspension sought by judicial commission called unnecessary": The Associated Press has this report from Mississippi.
Posted at 15:46 by Howard Bashman



In Sunday's newspapers: The cover story of the Magazine section in today's issue of The Boston Globe bears the title "The truth about polygraphs: A National Academy of Sciences study validates long-held doubts about the reliability of polygraphs. So why does the government still rely on them to screen applicants for jobs?" And today's installment of the Sunday Ideas report is headlined "Rainbow warriors: The gay-rights movement has seized the nation's attention and agenda. Can it hold them?"

In The New York Times, Adam Liptak reports that "E-Mail Stock Tip Tests Limits of Securities Laws." An obituary is entitled "Charles S. Rhyne, 91, Lawyer in a Landmark Case, Drowns." And an editorial is entitled "The Harvey Milk High School."

The Washington Post contains an article headlined "A Key Matchup: In Bryant Trial, Noted Defender vs. Talented Young Prosecutor." Columnist George F. Will has an op-ed entitled "Careless People In Power." And an op-ed length letter to the editor entitled "The Next Regional Skirmish" begins, "Maryland and Virginia are about to go to war again. But this time the fight won't be over the Potomac River, baseball teams or even the Woodrow Wilson Bridge. Instead, a battle is looming over a pending vacancy on the U.S. Court of Appeals for the 4th Circuit, one rung below the Supreme Court."
Posted at 15:33 by Howard Bashman



Connecticut's Legislature tells that State's courts to follow the plain language of statutes: Readers of "How Appealing" may recall that the Supreme Court of Connecticut raised something of a ruckus back in March 2003 when, in the context of a death penalty appeal, that court issued a ruling which, according to some commentators, severely undermined the commonly-followed "plain meaning" approach to statutory construction.

You can access the Connecticut Supreme Court's ruling in State v. Courchesne here (majority opinion), here (concurrence), here (opinion concurring in part and dissenting in part), and here (dissent). Shortly after the ruling was announced, law.com reported here that "Connecticut Supremes Radically Change Statutory Tack; Death penalty case alters rules for legislative interpretation." You can access a report from Reuters on the ruling at this link. And you can access here a legislative analysis of the ruling.

In late June 2003, Connecticut's Governor signed into law legislation intended to overrule the statutory construction aspect of the holding in Courchesne. The newly-enacted law, which will take effect on October 1, 2003, provides:
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
It will be interesting to see how Connecticut's highest court reacts to this new statutory provision once the law takes effect.
Posted at 11:23 by Howard Bashman



"Ginsburg: Int'l Law Shaped Court Rulings." Gina Holland of The Associated Press has this report about remarks that Justice Ruth Bader Ginsburg delivered yesterday at the American Constitution Society national convention.
Posted at 11:01 by Howard Bashman



"Justice best served by granting clemency": The Indianapolis Star today contains this editorial.
Posted at 11:00 by Howard Bashman



"Lethal injections questioned over amount of pain delivered": This article appears in today's edition of The Toledo Blade.
Posted at 10:54 by Howard Bashman



"After a courtroom victory for gays, political battle may be getting ugly": Yesterday's issue of The Austin American-Statesman contained this report.
Posted at 10:52 by Howard Bashman



Saturday, August 02, 2003
Thanks to C-SPAN, you can view two key sessions from the American Constitution Society national convention online, on demand: At this link, you can view U.S. Senator Hillary Rodham Clinton's (D-NY) lunchtime address to the convention yesterday. Regardless of whether you support her political views, the speech is well worth a look, especially for her comments about the U.S. Supreme Court and her explanation of why Senate Democrats are filibustering judicial nominees.

At this link, you can view a panel discussion on "conservative judicial activism." One of the participants on this panel was Fourth Circuit Judge J. Michael Luttig, who apparently does not speak very often in public about topics such as this. I thought that Judge Luttig did a truly fine job explaining his views, and I was also very impressed by the comments of another panelist, D.C. Circuit Judge David S. Tatel.

Real Player is required to view these online video segments, and they may only be available online for the next two weeks, so do not delay.
Posted at 23:04 by Howard Bashman



In Saturday's newspapers: The New York Times reports here that "President Steps Into Toxic Campaign Debate on Gay Marriage." In other news, "Senate Approves Treaty Updating Limits on Airlines' Liability." An article bears the headline "Polling People About God." An op-ed by Law Professor Richard H. Pildes is entitled "Less Power, More Influence." And letters to the editor appear under the heading "A Stern Vatican and Gay Marriage."

The Washington Post reports here that "Court Backs Workers In Xerox Pension Fight." You can access yesterday's opinion issued by Circuit Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit at this link. In other news, "More Serious Charges Possible in 'Va. Jihad Network' Case." An editorial is entitled "The Lentz Verdict." Columnist Richard Cohen has an op-ed entitled "Considering the Kobe Bryant Case." And a letter to the editor from C. Boyden Gray is entitled "Using Religion as a Litmus."

Today's edition of The Washington Times contains an editorial entitled "The 'religious litmus test.'"

The Los Angeles Times reports here that "Acquittals Quash a U.S. Bid for Death Penalties in Puerto Rico." You can access here an article headlined "Licensed to Make a Statement -- and Tax the Willing -- in Florida; Specialty plates benefit groups and causes, but some say that the trend has crossed a line and leaves the state without an easily identifiable tag." A newsbrief notes that "Prosecutors Seek Quick Retrial of Former Officer." In other news, "Ruling against Scouts may not affect sea base; Orange County Boy Scouts official contends anyone can use base in Newport, unlike situation in San Diego." In other local news, "New Attorneys Pick Up Fight for Pooh; The family suing Walt Disney for royalties replaces the lawyers who withdrew from the case." And an op-ed by Cathy Curtis is entitled "Jury Duty Is One of the Prices We Pay for Justice."
Posted at 22:33 by Howard Bashman



"United Way pulls funds from scouts; Pa. groups lose thousands over gay discrimination." This report appeared in yesterday's issue of The Philadelphia Inquirer. Today's edition of that newspaper reports here that "Boy Scout council 'devastated' by United Way cuts; The board chairman of the local group said a program for inner-city children would be lost."
Posted at 20:54 by Howard Bashman



"Frame fall blamed on builder; A report on the July 4 accident at the Constitution Center put the staging firm alone at fault." Yesterday's edition of The Philadelphia Inquirer contained this report regarding the incident in which U.S. Supreme Court Justice Sandra Day O'Connor narrowly escaped being bonked on the head.
Posted at 20:52 by Howard Bashman



"Voters in judicial elections just go through the motions": This interesting article will appear in Sunday's issue of The Minneapolis Star Tribune. Related articles in tomorrow's newspaper bear the headlines "Some appointments raise political questions" and "Selection Commission guards against accidental candidates."
Posted at 20:36 by Howard Bashman



"Questioning is not the same as attacking faith; The right is playing 'The Catholic Card' against moderates": Columnist Ellen Goodman had this op-ed in yesterday's issue of The Charlotte Observer.
Posted at 20:30 by Howard Bashman



Keep those cards and letters flowing: Thanks to all who have emailed so far in response to my request for comments on Fourth Circuit Judge Paul V. Niemeyer's approach (expressed in his dissenting opinion issued Friday) to the rule providing that a three-judge U.S. Court of Appeals panel lacks the ability to overrule another three-judge panel from its own circuit. My post from last night, available at this link, provides all the details. I plan to feature responses online here late in the day tomorrow.
Posted at 17:05 by Howard Bashman



In Sunday's edition of The New York Times: Adam Liptak reports that "U.S. Courts' Role in Foreign Feuds Comes Under Fire." And in other news, "Affirmative Action Foe's Latest Effort Complicates California Recall Vote."
Posted at 16:57 by Howard Bashman



"Massachusetts Court Mulls Gay Marriages": The Associated Press provides this report.
Posted at 11:02 by Howard Bashman



Tonight on C-SPAN's fine program "America and the Courts": On tonight's show:
From June 7, Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer speak at the 2nd Circuit [NY, CT & VT] Judicial Conference in Bolton Landing, New York. First is a speech by Ginsburg, followed by a panel with both.
If you won't be near a television this evening, you can view the program online via this link beginning sometime early next week.
Posted at 10:55 by Howard Bashman



"Class action bill advances principles of federalism": U.S. Representative Bob Goodlatte (R-VA) has this op-ed in today's edition of The Roanoke Times.
Posted at 10:52 by Howard Bashman



"President Calls for Action on Judicial Nominees": The White House yesterday issued this statement.
Posted at 09:56 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Students Divided on Affirmative Action"; here "Kerry Scolds Vatican Over Gay Marriage"; here "Judge Refuses Bail for Terrorism Suspect"; here "Houston Crime Lab Cleared of Wrongdoing"; here "Affidavit: Rudolph Linked to Ala. Bomb"; here "Bus Firm Settles Claim by AIDS Activists"; here "Convicted Killer Quits Job As Professor"; and here "FDA Removes Warning Label From Olestra."
Posted at 09:55 by Howard Bashman



Friday, August 01, 2003
Divided Fourth Circuit panel agrees that riding a jet ski over the gates of the Robert C. Byrd Dam is not recommended but splits over whether later three-judge panel may overrule holding of earlier three-judge panel: As luck would have it, today I stumbled quite by accident onto one of the more interesting decisions involving an issue of appellate procedure that I have read in quite some time. Fourth Circuit case law concerning whether the discretionary function exception to a waiver of sovereign immunity applies under the Suits in Admiralty Act is apparently contrary to the great weight of appellate authority from other U.S. Courts of Appeals. And the Fourth Circuit ruling that diverges the most from the law of the other circuits is the earliest Fourth Circuit published opinion to resolve the question. Indeed, later Fourth Circuit rulings that have addressed the question have been more in line with the law in other circuits, and those more recent Fourth Circuit rulings -- to the extent they disagreed with the earliest Fourth Circuit ruling on point -- have either ignored that earlier ruling or failed to accord it due regard.

A federal statute currently authorizes the various U.S. Courts of Appeals to have between six and twenty-eight judges in regular active service. Except when those courts hear or rehear cases en banc, they commonly sit in panels of three judges in accordance with this statutory authorization. As far as I am aware, every U.S. Court of Appeals has adopted the policy that in the absence of a change in the governing law from a higher authority, no later panel is authorized to overrule the decision of an earlier panel. Rather, if an earlier panel's ruling happens to be wrong, rehearing en banc (or a poll of all active judges to see whether they are willing to sign-off on such a change in the absence of rehearing en banc) is necessary.

I believe it would be useful for me to employ several mathematic-like formulas as examples of what I'm discussing. Say in the year 2000 a three-judge panel of the U.S. Court of Appeals for the Twelfth Circuit decides in a precedential ruling that A plus B equals C. Assume further that a different three-judge panel of the Twelfth Circuit in 2001 is presented with the same question, but for whatever reason (and in violation of the rule that a later panel cannot overrule an earlier panel in the absence of rehearing en banc) the 2001 panel holds that A plus B does not equal C. Finally, assume that in 2003 a third three-judge panel of the Twelfth Circuit is presented with the very same question, does A plus B equal C or not. What is that third panel, in 2003, to do?

This hypothetical is essentially the question that divided the three judges on a Fourth Circuit panel that today decided a case involving two jet skiers who had the unfortunate experience of riding their watercraft over the gates of the Robert C. Byrd Dam in West Virginia. Those two individuals sustained significant injuries as a result of their actions.

In the majority opinion, Circuit Judge William B. Traxler, Jr., joined by Circuit Judge Karen J. Williams, employed the approach that I had always understood to be proper -- the earliest precedential case to decide the issue in question controls, and any intervening cases from the circuit that are contrary to that earliest decision are ignored because the panels that decided those intervening cases lacked the power, in the absence of rehearing en banc, to alter the rule stated in the earliest decision to resolve the issue in question.

In dissent, however, Circuit Judge Paul V. Niemeyer advocated a theory that had never occurred to me. His theory proceeded as follows: the rule that later panels should not disregard the controlling holdings of earlier panels is one of policy, not judicial power; later decisions that violate that policy are as much binding decisions of the federal court of appeals as the earliest decision to resolve an issue; accordingly, a panel that is faced with conflicting earlier rulings from its own court has no choice but to violate the policy that a later panel should not overrule an earlier panel's on point decision no matter how it rules; and therefore the panel faced with the question today should rule in favor of whichever of the earlier decisions it believes is most correct, instead of adhering to the decision that was earliest in time, whether most correct or not.

Thus, to return to my mathematical examples, the majority's view of the case was that it had no option but to hold that A plus B equaled C in the absence of rehearing en banc, while Judge Niemeyer, in dissent, was of the view that the panel was free to decide that A plus B did or did not equal C depending on which result the panel believed was correct as an original matter given that earlier decisions supported either result.

Judge Niemeyer's approach, which I had never seen urged by a federal appellate judge prior to today, is quite inventive, but I'm concerned that it would introduce additional unnecessary uncertainty into the most mundane of appeals. In other words, my fear is that Judge Niemeyer's approach would eventually devolve into allowing each three-judge panel to decide every case anew without regard to existing circuit precedent. And while that is certainly a manner of adjudication that federal appellate courts are free to adopt if they find it to be preferable, they have to date refused to adopt that approach, opting instead for the value of certainty of legal rules at the risk that it will be especially difficult on occasion to fix errors that have arisen.

If any readers of "How Appealing" have a different take on Judge Niemeyer's approach, or if you happen to have a different view of the merits of that approach, I'd be quite interested to hear what you have to say via email. And be sure to let me know if I can identify you by name if I decide to publish your thoughts here.
Posted at 23:13 by Howard Bashman



In Friday's newspapers: The Los Angeles Times reports here that "Democrats in Senate Block Bush Nominee; Partisan standoff halts action on Pryor for the federal bench, sets up a fight on appointee Kuhl." An article reports that "California Law to Govern Unocal Human Rights Case, Judge Rules; The company's bid to have the matter tried according to foreign statutes is rejected." In other news, "Ruling Says Parolees Entitled to a Limited Right to Privacy; State Supreme Court overturns conviction in Bakersfield drug case. Ex-convict's home was searched without a warrant." An article reports that "Foes of Gay Marriage Find New Momentum," and, in related news, "Gay Marriage Is Immoral, Vatican Says; Document signed by the pope urges lawmakers everywhere to fight against same-sex unions." In local news, "Philip Morris Cleared in Cancer Case; A Los Angeles jury rejects five of six claims by a longtime smoker that the cigarette maker was responsible for his lung disease." In news pertaining to Kobe Bryant, you can access here an article headlined "Bryant Case Recalls Race Issue; Profiling claim against Sheriff's Dept. makes some wonder if Lakers star can get a fair trial," while here religious leaders address the question "Should talk show host have revealed name of Kobe Bryant accuser?" An article reports that "Civil trial begins for Rodman; The West Newport resident and former NBA star mixes humor with testimony in sexual assault case." In other news, "U.S. Indictments Target Mexican Drug Cartel." And in recall election-related news, "It Could Be a Long, Quirky Ballot; With nine days left, more than 200 people, mostly folks you've never heard of, take out papers for a potential run for governor."

The New York Times reports here that "Illinois Court Drops Order to Raise Judges' Pay." An article reports that "Top New Jersey Court Affirms Borders of Legislative Districts." In other news, "Man U.S. Says Was a Nazi Is Stripped of His Citizenship." In business news, "Judge Says I.B.M. Pension Shift Illegally Harmed Older Workers." An editorial is entitled "The Growing Inmate Population." And letters to the editor appear under the heading "Bush, 'Sinners' and Gay Rights."

The Washington Post reports here that "Vatican Instructs Legislators On Gays; Backing Marriages Called 'Immoral.'" In local news, "Court Keeps Ex-Husband In Va. Jail ; Judge Had Overturned Jury In Case of Missing Woman." In other local news, "Affidavit Unsealed From Muslim Probe." And in business news, "Judge Finds Age Bias in IBM Pensions; Experts Say Ruling Could End Other Employers' 'Cash Balance' Plans."

The Washington Times reports here that "Bush weighs marriage amendment." In related news, "Conservative base pressed president to defend traditional matrimony" and "Vatican paper condemns same-sex 'marriage.'"

USA Today reports here that "Vatican battles rights for same-sex couples; Paper recruits politicians, voters." In other news, "Some prosecutors, lab experts criticize DNA focus; Say Justice Department overlooks other techniques to solve crimes." An article reports that "Bryant judge resists media pressure." And an op-ed by Yolanda Young is entitled "Religious issues fracture Democrats."

Finally for now, The Boston Globe reports here that "Vatican warns on same-sex marriage; Broad edict has message for Catholic politicians." And The Christian Science Monitor reports here that "Gay-union debate intensifies in churches; Many major religious groups are actively wrestling over unions and ordination of clergy."
Posted at 22:27 by Howard Bashman



Available online at law.com: Jonathan Ringel reports that "Filibuster Leaves Pryor in Legislative Limbo." Jason Hoppin reports that "ABA Weighs Ethics of Confidentiality." Shannon P. Duffy reports that "Punitives OK'd in Discrimination Suit Against Penn." And you can access here an article headlined "N.Y. Panel Rejects Review Of Tobacco Fee Award; Justice Ramos found to lack authority to conduct inquiry."

In commentary, Evan P. Schultz has an essay entitled "Pryor Offenses: What William Pryor and the 11th Circuit have in common." And Anne M. Coughlin has an essay entitled "Justice Powell at Peace: 'Bakke' and 'Bowers' get their due."
Posted at 22:16 by Howard Bashman



"Sen. Clinton Questions Supreme Court": Gina Holland of The Associated Press reports here from the American Constitution Society national convention that "Sen. Hillary Clinton said Friday that Supreme Court victories this year for gay couples, minorities and women do not erase the distrust created by other 'legally dubious' rulings, including the Bush v. Gore presidential election case."
Posted at 19:40 by Howard Bashman



On deck for discussion tonight: This very interesting ruling that the U.S. Court of Appeals for the Fourth Circuit issued today.
Posted at 19:04 by Howard Bashman



"Time cited as enemy of vote on Holmes confirmation": This article appeared in yesterday's edition of The Arkansas Democrat-Gazette.
Posted at 17:30 by Howard Bashman



"Case of Judicial Plagiarism? Plaintiffs Object to Court's Liberal Use of Defense Briefs." Today's edition of the ABA Journal eReport bears this title. As I mentioned a while back when I first noted this controversy, "Judicial plagiarism is funny in that the lawyers whose work was plagiarized don't complain; rather, it's the opposing lawyers whose work wasn't plagiarized who are upset."
Posted at 17:20 by Howard Bashman



"Dislike Court Ruling? Congress May Help." Bloomberg News columnist Ann Woolner today has this essay.
Posted at 17:14 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Support Of First Amendment Increasing, UConn Poll Finds," and here Anne Gearan reports that "Judges to Spend $10M to Pay Jurors."
Posted at 17:11 by Howard Bashman



"The Kennedy Dissent and the Abomination of Grutter: Overlooked but instructive." Carol Iannone has this essay today at National Review Online.
Posted at 16:48 by Howard Bashman



"Winning on Appeal: Better Briefs and Oral Argument," Second Edition, by Ruggero J. Aldisert, is now available for purchase: If I had to select a single written resource that I have found to be the most useful during the nearly twelve years that I have worked as an appellate lawyer in private practice, I would choose Senior Third Circuit Judge Ruggero J. Aldisert's book, "Winning on Appeal" published in 1992.

Earlier this week, I was so very pleased to receive in the mail the brand-new Second Edition of "Winning on Appeal," which promises to be even more useful and informative than the decade-old original volume I have grown to appreciate so much. A blurb from former Third Circuit Chief Judge Edward R. Becker nicely sums up my views: "This is the most practical, insightful and comprehensive volume on brief writing and oral argument that I have ever seen. It is a 'must' for every serious appellate practitioner."

The new edition of "Winning on Appeal" can be purchased online at this link. The book retails for $59.95 and will prove far more valuable to one's success as an appellate advocate than a Chief Justice Rehnquist bobblehead doll, which recently sold at auction for $320. I'm also pleased to report, as I alluded to here back in February 2003, that the new edition of "Winning on Appeal" includes brief-writing and oral advocacy suggestions from a number of experienced appellate advocates, including me.
Posted at 16:22 by Howard Bashman



"Patriot Act Legal Attacks Pile Up": Wired News has this report.
Posted at 16:06 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Harvard to Post Nuremberg Trial Documents" and here an article entitled "Court Rules on Illinois Judge Raises."
Posted at 16:02 by Howard Bashman



A pro bono victory: Some time ago, I had the distinct honor of being asked by the U.S. Court of Appeals for the Third Circuit to file an amicus brief in support of affirmance of a reciprocal disciplinary order that a sharply divided en banc U.S. District Court for the Eastern District of Pennsylvania had imposed on a well-known attorney who just happened to be the brother of a U.S. District Judge who serves on that court.

Today the Third Circuit issued its decision in that appeal, and I am pleased to report that the Third Circuit has affirmed by a vote of 2-1. You can access today's decision at this link. You can access the district court's opinions here (majority opinion), here (dissent), and here (another dissent). Reporter Shannon P. Duffy of The Legal Intelligencer had an article on the oral argument of the appeal headlined "Surrick Asks 3rd Circuit Panel to Overturn Suspension." My appellate brief in this matter used to be available via my law firm's Web site, but thanks to the recent redesign it isn't currently accessible (sigh!).

In any event, I haven't yet had the chance to read the decision closely (it just issued ten minutes ago), and I doubt that I'll have anything more to say about it here given my general reluctance to discuss in detail the matters on which I am working. But because I have mentioned this pro bono representation from time to time since this blog began, I thought it appropriate to deliver news of today's result.
Posted at 14:56 by Howard Bashman



"Hustler's Larry Flynt wants to replace Davis": Today's issue of The San Francisco Chronicle reports here that "Larry C. Flynt, the publisher of Hustler magazine, says he wants to be the Democratic Party's standard bearer -- or maybe 'barer' -- in the coming California recall election, and he's running for governor."
Posted at 13:55 by Howard Bashman



News from the U.S. Court of Appeals for the Ninth Circuit: The Ninth Circuit yesterday issued two press releases: "Court of Appeals Schedules Special Sitting in Anchorage" and "Ninth Circuit Judges, Clerk to Meet with Attorneys in Anchorage." Earlier this week, the Ninth Circuit made available online its Annual Report for 2002, which looks to be a quite snazzy document and thus makes for a very large PDF file.

Finally, in mid-July 2003, a bill known as the "Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003" was introduced in the U.S. House of Representatives.
Posted at 13:54 by Howard Bashman



"Judges OK evidence from hacker vigilante": c|net News.com has this report on a recent Fourth Circuit ruling that I previously noted here.
Posted at 13:28 by Howard Bashman



"The right hand didn't know what the far-right hand was doing": Senator Hillary Rodham Clinton (D-NY) just spoke those words during her address, underway now, at the American Constitution Society annual convention about what happened in the U.S. Senate last night leading to the withdrawal of the planned cloture vote today for Ninth Circuit nominee Carolyn B. Kuhl. Senator Clinton's remarks can be viewed live online here, now.
Posted at 13:20 by Howard Bashman



"Appeal court takes case of guardian for fetus": The Orlando Sentinel today has this report.
Posted at 11:54 by Howard Bashman



By unanimous consent, the Senate Judiciary Committee yesterday favorably reported the nomination of Steven M. Colloton to join the U.S. Court of Appeals for the Eighth Circuit: See page 11 of this PDF document. Looks like I was right.
Posted at 11:51 by Howard Bashman



Yesterday's ruling of the Supreme Court of Michigan striking down that State's grandparent visitation statute is now available online: You can access it at this link. My post from earlier this morning, noting news coverage of this decision, is available here.
Posted at 11:39 by Howard Bashman



"Hustler Publisher Files in Calif. Recall": The Associated Press reports here that "Porn king Larry Flynt wants to rule California."
Posted at 10:54 by Howard Bashman



American Constitution Society Convention live on C-SPAN today: A reader has just emailed the following, which can be confirmed here at C-SPAN's Web site:
C-SPAN will feature live coverage of ACS's First National Convention on Friday, August 1, beginning at 12:45 pm ET with remarks by Senator Hillary Rodham Clinton (D-NY).

C-SPAN also will feature live coverage beginning at 3:30 pm ET of a panel discussion titled "Conservative Judicial Activism," with participants Judges David Tatel (DC Circuit) and J. Michael Luttig (Fourth Circuit); William Marshall, UNC law professor; and attorneys Alan Morrison, Public Citizen Litigation Group, and Teresa Wynn Roseborough, Sutherland Asbill & Brennan.

In addition, C-SPAN is scheduled to tape for later broadcast "The Erosion of Environmental Protection," a panel discussion featuring Carol Browner, former Administrator of the US EPA; Bradley Campbell, Commissioner of the New Jersey Department of Environmental Protection; Jim Hecker, Trail Lawyers for Public Justice; John Podesta, former White House Chief of Staff, and Jonathan Adler, Case Western Reserve law professor. Please check program listings for broadcast times.
What, Jonathan Adler doesn't merit live coverage -- it's a travesty! But seriously, I've been really looking forward to the discussion involving Judges Luttig and Tatel, and I'm quite pleased it will be shown live on C-SPAN this afternoon.
Posted at 10:46 by Howard Bashman



"The Term the Constitution Died": Michael S. Greve of the American Enterprise Institute provides this wrap-up (via "White Noize").
Posted at 10:23 by Howard Bashman



So you wish to be recognized by the federal government as an Indian tribe? A word of advice -- it doesn't hurt to be patient, this opinion that the U.S. Court of Appeals for the D.C. Circuit issued today suggests.
Posted at 10:16 by Howard Bashman



"Yes, They're Anti-Catholic: The Democrats and judges." Ramesh Ponnuru has this essay today at National Review Online.
Posted at 09:45 by Howard Bashman



Cloture vote on Ninth Circuit nominee Carolyn B. Kuhl pulled from U.S. Senate's calendar: The cloture vote, which had been scheduled to occur today, apparently won't take place, if information available on the U.S. Senate's Web site is any indication. According to that information, the Senate's next roll call vote won't occur until September 3, 2003.
Posted at 09:43 by Howard Bashman



"Pryor bid blocked in Senate": The Mobile Register today contains this report.
Posted at 09:39 by Howard Bashman



"Fueling the Fire": This editorial appears in today's edition of The Washington Post. The editorial addresses the Bush Administration's two most recent nominations to the U.S. Court of Appeals for the D.C. Circuit.
Posted at 06:53 by Howard Bashman



"Offensive Prayer Offensive": Today's edition of The New York Times contains this editorial.
Posted at 06:47 by Howard Bashman



More Saad news: Yesterday's edition of The Detroit News reported here that "Hatch riles Democrats at judicial hearing." The Cincinnati Enquirer reported here that "Parties spar over judicial choice; Democrats boycott 6th Circuit nominee." And in other coverage from Michigan, "Levin's, Stabenow's objections ignored."
Posted at 06:40 by Howard Bashman



"Court Dispute in Affirmative Action Case Ruled Moot": The Washington Post's Charles Lane, who has all but owned this story in the popular press, today has this report.
Posted at 06:33 by Howard Bashman



"Court says grandparents have no right to visitation; State's top justices strike down law, put existing orders in doubt": This article appears in today's issue of The Detroit Free Press. The Detroit News reports here that "Court denies right to visit grandkids; Michigan justices, in 6-1 decision, strike down state's grandparent visitation law." And The Associated Press reports here that "Michigan Supreme Court says grandparent visitation law is unconstitutional." Coincidentally, yesterday I filed a Brief for Appellant in a Pennsylvania state appellate court on behalf of a client who is making the very same argument that appears to have prevailed yesterday before the Supreme Court of Michigan.
Posted at 06:20 by Howard Bashman



"Death penalty trial opens today in Detroit court; U.S. accuses suspect of ordering gang killings": Today's issue of The Detroit Free Press contains this report.
Posted at 06:20 by Howard Bashman



"Senate Democrats Block Pryor Nomination": Reuters provides this report. The Washington Times reports here that "Democrats in Senate block another judge." The Montgomery Advertiser reports here that "Pryor's nomination blocked." And The Times Daily reports here that "Pryor blocked from U.S. Appeals Court; GOP fails to get votes needed to stop filibuster by Democrats."
Posted at 06:16 by Howard Bashman




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