How Appealing

Wednesday, December 31, 2003
Best wishes for a happy, healthy, and rewarding 2004! Thanks so much to the thousands upon thousands of readers who visited "How Appealing" in 2003, and very special thanks to those readers who took the time to email ideas, links, or attachments that led to additional posts. In 2003, this blog's "20 questions for the appellate judge" feature went from facing the threat of extinction to having an incredibly impressive abundance of federal and state appellate judges who came forth and agreed to be interviewed. Many of those interviews remain to be conducted in the months ahead.

As I sit here on the eve of 2004, it is impossible to predict what changes the new year will bring for me and this Web log. On October 28, 2004 I will turn 40 years old. You have my word that "How Appealing" will at least continue to exist through that date and that I have made no final decision concerning what will happen thereafter.

I'm not someone who's much into New Year's resolutions, but for now let me throw out two rather insignificant hopes for the year ahead. I hope that Chuck Lane of The Washington Post in 2004 finds a way to quote me in his coverage of the U.S. Supreme Court. And I hope to make more blog-related speaking appearances on the heels of my talk at the Harvard Law School on the evening of Monday, January 12, 2004 (details here). Already there's the prospect of an invitation from a highly regarded law school in the Midwest, so stay tuned.

But more seriously, while philosophers may never solve whether the chicken predated the egg or whether a tree falling in a forest makes a sound if no ears are nearby, I can assure you that this Web log would not exist were it not for you, the reader. The incredibly kind emails, telephone calls, unsolicited gifts (yes, even a Chief Justice Rehnquist bobblehead doll arrived in 2003), and enthusiasm when meeting me in person that I have experienced from readers of this blog since beginning this endeavor back in early May 2002 have meant more to me than you will ever know.
Posted at 23:02 by Howard Bashman



"Child molester can't be banished; Appeals court says he can't be kept from home village." Today's issue of The Anchorage Daily News contains this article. You can access the non-precedential ruling that the Alaska Court of Appeals issued on December 17, 2003 at this link.
Posted at 23:00 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Los Angeles Times reports that "Ashcroft Steps Aside in CIA Leak Inquiry; A special prosecutor is appointed to take over the investigation, which is moving 'very quickly.'" In related news, "Attorney Known as Aggressive, Affable, Fearless; Patrick J. Fitzgerald's colleagues say politics won't hinder the 'dogged prosecutor' as he gets to the bottom of the CIA leak." An article reports that "Overseer of Military Tribunals Is Named; A retired Army general will facilitate hearings for Guantanamo Bay terrorism suspects." In other news, "Lockyer Voices Identity Theft Worries; Provisions of a federal law designed to protect consumers may actually put Californians at greater risk, the attorney general warns." And letters to the editor appear under the headings "A Solution for Prison: Execute the Condemned" and "Pledging and Hedging."

The Boston Globe reports that "Ashcroft steps aside in probe into CIA leak." In other news, "R.I. judge named to review detainee cases." An article reports that "Juror says Sampson inspired little sympathy during trial." And in other local news, "Cape man sells film rights to murder saga."

The Washington Times reports that "Ashcroft gives CIA leak case to U.S. attorney." In other news, "Bill limits gun-buyer database." And John M. Templeton, Jr. and Michael Novak have an op-ed entitled "God bless the ACLU."

USA Today reports that "Attorney general recuses himself from CIA probe; Special prosecutor is named to look into leak." And letters to the editor appear under the heading "Ban on gay marriage would lessen USA."
Posted at 22:30 by Howard Bashman



"A 'bad guy' in a bad time demonstrates a timeless principle": Columnist David Sarasohn has this op-ed today in The Oregonian.
Posted at 20:01 by Howard Bashman



"Supreme Court upholds convictions for child pornography": The Associated Press provides this report from South Dakota. And you can access yesterday's ruling of the Supreme Court of South Dakota at this link.
Posted at 19:58 by Howard Bashman



"C.A. Upholds Extension of Child Sex Crime Limitations Period; No Ex Post Facto Violation Where Period Had Not Expired When New Law Took Effect, Court Says": The Metropolitan News-Enterprise today contains this report. You can access yesterday's ruling by California's First District Court of Appeal at this link.
Posted at 19:57 by Howard Bashman



"R.I. chief justice to hear appeals by terror suspects; The Defense Department has selected Frank J. Williams to play a role in the military trials of Guantanamo Bay detainees." This article (free registration required) appears today in The Providence Journal.
Posted at 19:50 by Howard Bashman



"Asbestos Litigation: Evidence Of Massive Corruption? An upcoming law-review article suggests that most of the thousands of asbestos-related injury claims being filed each year are bogus." Stuart Taylor Jr. has this essay in National Journal this week.
Posted at 19:49 by Howard Bashman



"Feingold: Don't ban gay unions in Constitution; Says he would lead the fight." This article appears today in The Capital Times of Madison, Wisconsin.
Posted at 19:47 by Howard Bashman



"Slain black woman's family takes lawsuit to U.S. Supreme Court": The Associated Press has this report from Jacksonville, Florida.
Posted at 19:44 by Howard Bashman



"State's high court recused from case; Retired judges will hear governor's position on chief justice appointments": This article appears today in The Concord (N.H.) Monitor. The State of New Hampshire is in something of a tizzy over the method through which the next Chief Justice of that State's highest court is to be selected. WMUR television offers a print report headlined "After 25 Years On Supreme Court, Chief Justice Brock Retires; Demand On Courts Has Grown." A video report from WMUR, containing an interview with Chief Justice Brock, can be viewed here (Real Player required).
Posted at 19:42 by Howard Bashman



Law Professor Rick Hasen finds two more errors in the U.S. Supreme Court's recent campaign finance ruling: See this post for some (but not all) of the details. The complete opinion can be accessed here.
Posted at 19:35 by Howard Bashman



"'Visiting judge' system under fire": This article appears today in The Cincinnati Post.
Posted at 19:29 by Howard Bashman



If only it were high school: The Associated Press, in an article headlined "Diazes' attorneys say case against them built on speculation," reports from Jackson, Mississippi that "The attorneys for indicted state Supreme Court Justice Oliver Diaz Jr. and his ex-wife, Jennifer, say the federal government's fraud and bribery case against their clients is 'based on unfounded speculation and innuendo.'"
Posted at 19:29 by Howard Bashman



"High court" is not "high school": The Associated Press erroneously reports that "Mississippi high school declines to hear Jackson man's appeal."
Posted at 19:22 by Howard Bashman



"Asbestos victims face new obstacle; Pending bill would limit who could sue companies": This article appears today in The Dayton Daily News.
Posted at 19:20 by Howard Bashman



"Strip clubs may be forced to stop selling alcohol": Today The Athens Banner-Herald reports here that "Tonight could be the end of the road for two strip clubs that have remained open in spite of an Athens-Clarke County law against nudity and alcohol."
Posted at 19:15 by Howard Bashman



"Can A Parent Sue When his Adult Child is Killed by the Police? A Recent Case Says 'No' and Highlights a Division Among Appellate Courts": Law Professor Sherry F. Colb has this essay today at FindLaw.
Posted at 19:13 by Howard Bashman



"Sharply Split In Banc Panel Upholds Mail Fraud Convictions Of Two NY Lawyers": New York Law Journal offers this report.
Posted at 19:11 by Howard Bashman



"Stenehjem asks high court to hear river case": The Bismarck Tribune reports here today that "The dispute between recreational interests and navigation interests along the Missouri River could be heading to the U.S. Supreme Court."
Posted at 19:07 by Howard Bashman



Department of "no comment": The Toledo Blade reports today that "Bergsmark asks appellate court for his 4th extension."
Posted at 19:04 by Howard Bashman



"Puerto Rico's 1st Female Chief Justice": The Associated Press reported here last night that "Miriam Naveira was sworn in Tuesday as the new chief justice of Puerto Rico's Supreme Court, making her the first woman to hold the post."
Posted at 19:03 by Howard Bashman



Petitioner Elk Grove Unified School District's brief on the merits in the Pledge of Allegiance case pending before the U.S. Supreme Court can now be viewed online: The brief is available here.
Posted at 18:50 by Howard Bashman



"Appeals Court Decertifies Tobacco Suit": The Associated Press provides this report from Florida. And you can access today's ruling of Florida's Fourth District Court of Appeal at this link.
Posted at 17:20 by Howard Bashman



In Wednesday's newspapers: The Washington Post reports that "Panel Rules U.S. Won't Reimburse Lewinsky." In other news, "Ashcroft Recuses Self From Leak Case; U.S. Attorney To Oversee Probe." An article reports that "Tribunals' Review Panel Picked; Former Attorney General Bell Among 4 Named." In news from Detroit, "Terrorism Case Thrown Into Turmoil; Factors Judge Is Considering Include Evidence Withheld From Defense." An article reports that "Release From Jail Sought for Cleared Terrorism Suspect." In news from Virginia, "Lawyer Wants Report Unsealed in Lindh Case." A front page article reports that "Meat From Infirm Animals Is Banned; U.S. Strengthens Rules To Protect Food Supply." In related news, "Banning Sale of 'Downer' Meat Represents a Change in Policy; Identical Measure Was Blocked in Congress Just Weeks Ago." An article in the food section is headlined "The American Burger: How Safe Is It?" And an editorial is entitled "Misfires on the Hill."

The New York Times reports that "Special Counsel Is Named to Head Inquiry on C.I.A. Leak." A related profile is headlined "'An Independent Prosecutor.'" In other news, "Hispanic Day Laborers Sue Freehold, Claiming Right to Gather to Seek Work." An article reports that "U.S. Imposes Stricter Safety Rules for Preventing Mad Cow Disease." In other health-related news, "F.D.A. Rules Shots Effective for Anthrax That Is Inhaled." In business news, "Judge Rules Against US Airways on Calculating Pilots' Pensions." An article is headlined "So Much Clutter, So Little Room: Examining the Roots of Hoarding." An editorial is entitled "The Right Thing, at Last." And columnist William Safire today has his annual prediction op-ed for the forthcoming year.
Posted at 16:45 by Howard Bashman



"Wall Nuts: The wall between intelligence and law enforcement is killing us." Slate has recently posted online this Jurisprudence essay by Stewart Baker.
Posted at 16:30 by Howard Bashman



"Roy Moore commanded state news": The Associated Press provides this report from Alabama.
Posted at 15:45 by Howard Bashman



From this morning's broadcast of NPR's "Morning Edition": This morning's broadcast contained the following reports (Real Player required): "U.S. Moves Closer to Guantanamo Trials" and "Court to Review Amusement Ride Safety Rules."

NPR's written description of the amusement ride segment explains, "The California Supreme Court agrees to hear a case on whether rides at amusement parks should be held to the same regulatory safety standards as planes and trains. The case draws on a wrongful death lawsuit that claims high-speed roller coasters can cause blood vessel abnormalities to rupture. Scientists say rides are relatively safe."
Posted at 15:40 by Howard Bashman



A fake Gucci handbag that even fooled Gucci: Today a divided three-judge panel of the U.S. Court of Appeals for the Third Circuit affirmed a trial court's ruling that denied to Gucci both an award of profits and an injunction prohibiting future infringement by the defendant, Daffy's. You can access today's ruling at this link.
Posted at 15:30 by Howard Bashman



"Chick-fil-A's cows on hold": This article from today's issue of The Atlanta Journal-Constitution reports on one effort to make cows a little less angry.
Posted at 15:23 by Howard Bashman



"'Dumb' cross-burning botched from the get-go": The Atlanta Journal-Constitution reports here today on a group of cross burners who telephoned the police to respond to the scene of their crime. This provides even more support for the Dartmouth study that was the subject of my post last month entitled "Racists go to Jupiter, to get more stupider."
Posted at 15:21 by Howard Bashman



Vindictive? A dissenting opinion that Senior Circuit Judge John T. Noonan, Jr. issued today from a three-judge Ninth Circuit panel's ruling contains the following paragraph:
A British appellate judge was once reputed to discourage appeals by exercising his court's prerogative of increasing, even doubling, the sentences of appellants who lost their appeal. It was an effective tactic for reducing appeals. It was not a glory of British jurisprudence. In our case, appeal has been discouraged by the action of the district judge given a stamp of approval by this court. "Win your appeal and double your sentence." That cannot be our motto or that of any judicial body interested in doing justice. The motto is not any better if it reads: "Win your appeal and increase your sentence 40 percent."
You can access the complete decision at this link.
Posted at 15:05 by Howard Bashman



"Appellants' argument depends upon the notion that the events of September 11 so exalted first responders that, for many months thereafter, no one who sat across a courtroom from a police officer or a firefighter could get a fair shake": Today a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit, in an opinion by Circuit Judge Bruce M. Selya, rejects the argument that the events of September 11, 2001 deprived the plaintiffs of their right to a fair trial in an unrelated lawsuit against firefighters based in Rhode Island.
Posted at 15:00 by Howard Bashman



"Just as a building designed by Ludwig Mies van der Rohe demands controls made from regular or semi-regular polyhedra, so a building designed by Frank Gehry could not tolerate boxy controls." So writes Seventh Circuit Judge Frank H. Easterbrook in an interesting trademark decision issued today.
Posted at 14:44 by Howard Bashman



Congress should eliminate the law that automatically confers U.S. citizenship on all individuals born in the United States: So argues Seventh Circuit Judge Richard A. Posner in a must-read concurring opinion issued today in an asylum case involving a refugee who fears that her young daughters, U.S. citizens due to the location of their birth, will be subject to clitoridectomy and infibulation if their mother is forced to return to Nigeria.
Posted at 14:39 by Howard Bashman



How bad is the injunction? "Appallingly bad," Judge Posner says: The U.S. Court of Appeals for the Seventh Circuit today issued another quite interesting intellectual property decision written by Circuit Judge Richard A. Posner.
Posted at 14:15 by Howard Bashman



"Linguists Release Banished Words for 2004": The Associated Press provides this report.
Posted at 13:08 by Howard Bashman



"U-M case applied to police; Chicago ruling cites diversity argument": This article appears today in The Detroit Free Press.
Posted at 10:11 by Howard Bashman



"Judge: WTO arrests lacked cause." The Seattle Times reports here today that "Seattle police who arrested World Trade Organization protesters four years ago had no probable cause to do so, a federal judge has ruled, possibly leaving the city vulnerable to damages from a class-action lawsuit."
Posted at 10:08 by Howard Bashman



"Lawyer contends police ploy erodes trust in legal system; High court ruling sought in DNA sample": This article appears today in The Seattle Post-Intelligencer.
Posted at 10:05 by Howard Bashman



Strike three: Yesterday's issue of The Modesto Bee contained an article headlined "DUI conviction brings 25-year sentence."
Posted at 10:00 by Howard Bashman



In news from Texas: The Amarillo Globe-News reports that "Abortion rules not final - yet." And The Star Telegram of Fort Worth contains articles headlined "Texas, nation see drop in executions" and "Justice on Supreme Court faces primary challenge."
Posted at 08:58 by Howard Bashman



"Klassen wins suit over malicious prosecution": The Globe and Mail reports here that "A former foster parent accused of serial sex assault and ritual abuse said Tuesday that he feels vindicated after successfully suing a Crown prosecutor, a senior Saskatoon police officer and a therapist for malicious prosecution." And Canadian Press has a report headlined "12 accused of abuse were victims: Judge; Charged in ritual abuse of children; Prosecution ruled malicious."
Posted at 08:48 by Howard Bashman



"Judge amends ruling in lesbian divorce decree": This article appears in today's edition of The Sioux City Journal.
Posted at 08:45 by Howard Bashman



"Attorney will face hearing on conduct": The Seattle Times reports here today that "A public disciplinary hearing has been ordered for a Seattle attorney who was caught in a jailhouse sexual encounter more than a year ago with her client, a man currently on trial for three killings in Bellevue."
Posted at 08:44 by Howard Bashman



"Lawsuit forces another delay in judicial race": This article appears today in The Philadelphia Inquirer. The Associated Press reports that "GOP claims victory in state Superior Court race; Democratic opponent files lawsuit in federal court to overturn outcome." And The Morning Call of Allentown contains an editorial entitled "Undecided Superior Court race highlights need for recount law."
Posted at 08:38 by Howard Bashman



"Maui County loses motion in church case": The Honolulu Advertiser reports here today that "Hale O Kaula Church has won the first round in a lawsuit that pits government against church and has attracted national attention to a zoning dispute in Maui County." And The Honolulu Star-Bulletin today contains an article headlined "Isle church zoning case could go to high court."
Posted at 08:30 by Howard Bashman



Coming soon to "How Appealing": Monday, January 5, 2004 is the scheduled publication date for the next monthly installment of "20 questions for the appellate judge." January's interviewee will be Tenth Circuit Chief Judge Deanell Reece Tacha. Later next week, I will begin soliciting proposed interview questions for February 2004's "20 questions" interviewee, Ninth Circuit Judge Stephen Reinhardt.

Monday, January 12, 2004 is the scheduled publication date for the next installment of my monthly appellate column that appears in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers. The public has until February 16, 2004 to comment on proposed amendments to the Federal Rules of Appellate Procedure that are scheduled to take effect December 1, 2005. My appellate column next month will summarize and provide my views on the most significant of the proposed FRAP amendments. Will my column unwrap the "Washington's Birthday Package"? Time will tell.
Posted at 08:05 by Howard Bashman



Tuesday, December 30, 2003
"Carrying democracy too far poses a great threat to our freedom": This op-ed -- which appeared in yesterday's edition of The News-Sentinel of Fort Wayne, Indiana -- argues in favor of the availability of the filibuster to block confirmation of federal judicial nominees.
Posted at 23:42 by Howard Bashman



Elsewhere in Tuesday's newspapers: The Boston Globe reports that "Ruling rejects abortion provision; Judge says N.H. law is unconstitutional." And in other news, "Judge backs veterans' group in S. Boston parade dispute."

The Los Angeles Times reports that "Deadline Nears on Holocaust Claims." And Law Professor Jonathan Turley has an op-ed entitled "Celebrity Is Often Its Own Best Defense."

The Washington Times has an article headlined "Where punishment must fit the faith." Bruce Fein has an op-ed entitled "A judicial gift to Saddam." And a review of Law Professor David E. Bernstein's book "You Can't Say That!" is headlined "Big brother antics."

USA Today contains an editorial entitled "How wider use of a pill could quiet abortion fights." An opposing view is expressed in an op-ed by Tony Perkins entitled "Pill poses grave risks." And letters to the editor appear under the heading "Consider fallout from gay marriage ban."
Posted at 23:10 by Howard Bashman



Indian Country Today provides extensive coverage of Indian rights case now pending on the merits before the U.S. Supreme Court: The name of the case is United States v. Lara, and ITC has covered the case in articles headlined "Duro rides again; Supreme Court review will test extent of tribal sovereignty"; "Inherent sovereignty under siege in Lara appeal"; "Clear facts on the ground: Lara breeds fine points for sovereignty"; "U.S. v. Lara: two questions"; and "Defense counselor Reichert discusses U.S. v. Lara." ITC also plans on providing additional coverage of the case in the very near future.

You can learn more about the case here and here, and the Native American Rights Fund provides links to additional resources here.

Also available online are the Eighth Circuit's three-judge panel and en banc opinions. The federal government's opening brief on the merits can be accessed here, and Lara's brief for respondent can be accessed here. The deadline for the federal government's reply brief has yet to pass.
Posted at 22:20 by Howard Bashman



Available online at law.com: In news pertaining to the U.S. Court of Appeals for the Eleventh Circuit, "Journalists Ask Courts to End Secret Dockets." And Shannon P. Duffy reports that "'Opt-Out' Plaintiffs Win Discovery Rights; 3rd Circuit says state court must resolve dispute."
Posted at 22:10 by Howard Bashman



"Lawyers line up to defend Saddam": Tomorrow's issue of The International Herald Tribune will contain this article.
Posted at 19:33 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "North Dakota asks Supreme Court to hear Missouri River dispute"; "Benson to appeal judge's decision on parental notice law"; and "Missoula lawyer accused of seeking sex for legal services."
Posted at 19:32 by Howard Bashman



"Pentagon Takes Key Steps Toward Terrorism Trials": Reuters provides this report. The Associated Press reports that "Ex-General to Oversee Guantanamo Trials." And the Department of Defense today issued press releases entitled "Military Commission Review Panel Members to be Designated and Instruction Issued" and "Military Commission Legal Advisor Announced."
Posted at 19:31 by Howard Bashman



In news from Alabama: It appears to have been a busy news day for the Supreme Court of Alabama, and to everyone's relief no Ten Commandments monument was involved. The Associated Press is reporting that "Supreme Court keeps mental health records private"; "Supreme Court sets limit on obscenity prosecutions"; and "Divided court upholds $500,000 punitive damage verdict."
Posted at 19:22 by Howard Bashman



"Man implicated in assassination of federal judge now free": The "Texas Law Blog" has the details here.
Posted at 17:16 by Howard Bashman



"U.S. Bans Use of Downer Cows": The Associated Press provides this report.
Posted at 17:15 by Howard Bashman



"Lewinsky Denied Reimbursement of Legal Fees; Court Says Taxpayers Should Not Pay $1.1 Million": The Washington Post provides this news update.
Posted at 17:14 by Howard Bashman



"26 to life for taking an exam; Man took cousin's drive test -- strike 3": Bob Egelko of The San Francisco Chronicle reports here today on what appears to be a not-for-publication opinion that a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued yesterday.
Posted at 16:35 by Howard Bashman



For those keeping score at home: The en banc U.S. Court of Appeals for the Third Circuit issued this order today, which more specifically details how several judges voted in this en banc decision issued eight days ago. Consider my original post describing that ruling to be amended accordingly.
Posted at 16:01 by Howard Bashman



"How Appealing" gets results: It appears that the Fourth Circuit has abandoned its practice of "vacating" its decisions in cases that the U.S. Supreme Court has agreed to review on the merits. See the notation at the very bottom of this page, and then read my post from last month questioning the logic of the Fourth Circuit's practice -- a question that arose in the context of the very same case that is the subject of today's "this decision is not being vacated" announcement.
Posted at 15:48 by Howard Bashman



"French Dressing: Lessons for America from the proposed French ban on religious garb." Slate has just posted online this Jurisprudence essay by Avi Schick.
Posted at 15:36 by Howard Bashman



Revisionist history? The opinion that the D.C. Circuit issued today denying the counsel fee application of Monica Lewinsky contains the following paragraph:
As a result of the evidence of perjury, subornation of perjury, and obstruction of justice, the House of Representatives voted to impeach President Clinton on December 19, 1998. On February 12, 1999, following trial on two articles of impeachment, the Senate voted on whether to remove Clinton from office. Although a majority of Senators voted for removal, the vote fell short of the two-thirds' concurrence necessary for conviction of President Clinton.
A reader clerking for a federal judge based in California emails to note that a majority of Senators did not vote to remove President Clinton from office. And indeed the reader is correct. On the perjury charge, the Senate voted 55-45 against removal. And on the obstruction of justice charge, the Senate divided evenly, 50-50. Readers desiring even more information about the impeachment trial can access it here via The Washington Post and here via the PBS program NewsHour.
Posted at 15:20 by Howard Bashman



"Ashcroft Recuses Self From CIA Leak Probe": The Associated Press provides this report.
Posted at 14:15 by Howard Bashman



From this morning's broadcast of NPR's "Morning Edition": This morning's broadcast contained a report entitled "U.S. Cracks Down on American Sex Tourists Abroad" (Real Player required).
Posted at 13:50 by Howard Bashman



Unanimous eleven-judge en banc Ninth Circuit panel holds that federal law prohibits United States Fish and Wildlife Service from authorizing sockeye salmon enhancement project in Alaska wilderness reserve: Today's en banc decision reaches a result that is directly contrary to the result that a divided three-judge Ninth Circuit panel reached back in January 2003. None of the judges on the original three-judge panel was selected to serve on the eleven-judge en banc panel.
Posted at 13:30 by Howard Bashman



In news from Nebraska: The Lincoln Journal Star today contains an article headlined "Appeals court to hear lawsuit against Bush" that begins, "A former eastern Nebraska congressman who waged an anti-war fight with President Bush in federal court will get another chance to argue his case. The Eighth U.S. Circuit Court of Appeals agreed last week to hear an appeal of Clair Callan's third lawsuit against Bush -- this one questioning whether Congress had the authority to grant Bush an open-ended means to wage war."

And in other news, The Journal Star reports that "Getting naked gets woman in trouble." The Associated Press is also covering this story, in an article headlined "Neb. Woman Ticketed for Being Nude on Net."
Posted at 13:00 by Howard Bashman



It's still permissible to call her "Monica": Today the D.C. Circuit's Division for the Purpose of Appointing Independent Counsels Ethics in Government Act of 1978, as Amended, denied Monica Lewinsky's application for reimbursement of more than $1.1 million in attorneys' fees. You can access the opinion here. Notwithstanding this recent ruling by the U.S. Court of Appeals for the Second Circuit (which I previously reported on here), it's still permissible to call today's denied applicant "Monica." Or, to quote Ninth Circuit Judge Alex Kozinski, "relation" (see here and here for details).
Posted at 12:40 by Howard Bashman



"Center president seeks congressional seat": The Philadelphia Inquirer reports here today that "National Constitution Center president Joseph M. Torsella started his campaign for the 13th Congressional District yesterday, touting himself as the candidate of fresh ideas."
Posted at 08:10 by Howard Bashman



"Pagan inmate accuses jail officials of violating rights": This article appears today in The Pittsburgh Post-Gazette.
Posted at 08:07 by Howard Bashman



"Appeals court rejects free-speech case; A Southern Oregon man wanted to put up a billboard that advocated peace in the Persian Gulf." The Associated Press provides this coverage.
Posted at 08:06 by Howard Bashman



"Lawyer to face disciplinary hearing for having sex with client": The Seattle Post-Intelligencer today contains this report.
Posted at 08:05 by Howard Bashman



"Jurists deplore relaxed rules; Superior Court judges weigh in": This article appears today in The Raleigh News & Observer.
Posted at 08:02 by Howard Bashman



"High court will weigh Muslim's flag suit; Lower courts rejected religious argument": The Associated Press provides this report from Mississippi. And an editorial published in The Pascagoula Mississippi Press is entitled "Legal foolishness over the flag."
Posted at 07:55 by Howard Bashman



"For gays and lesbians, a year of remarkable gains": The Pittsburgh Post-Gazette contains this report today.
Posted at 07:54 by Howard Bashman



"Court rules on Naked Barbie: We know art when we see it." This article appears today in New Zealand's National Business Review. You can see more photos from "Food Chain Barbie" at this link. In today's issue of The San Francisco Chronicle, Bob Egelko reports that "Court upholds artist's right to toy with Barbie's image; Mattel loses appeal on photographer's acclaimed parodies." And my coverage of yesterday's ruling by the U.S. Court of Appeals for the Ninth Circuit can be accessed here and here.
Posted at 07:45 by Howard Bashman



"Woman Files $10M Suit Vs. Starbucks; Alleges she suffered 'severe burns' from coffee": This article appears today in Newsday.
Posted at 07:40 by Howard Bashman



In Tuesday's newspapers: The Washington Post reports that "Court Reins In Terror Suspect; Moussaoui Ordered To Use Attorneys." (Yes, this is the same news that I reported one week ago today.) An article reports that "Deal Would Free Youth Who Killed 6-Year-Old." In other news, "Enron Bankruptcy Examiner's Fees Soar." And an article reports that "Anthrax Fears Disrupt Rockville Courthouse; 3 Floors Temporarily Evacuated After Worker Opens Hostile Letter With White Powder."

The New York Times reports that "An Unrepentant Spammer Vows to Carry On, Within the Law." In other news, "Dispute in Michael Jackson Camp Over Role of the Nation of Islam." An article reports that "Tribe Loses Suit on Tax-Free Tobacco." And in news relating to current cinema, "Portraits of a Social Outcast Turned Serial Killer."

Finally, The Christian Science Monitor offers an essay by Susan Dicklitch entitled "Two college students fight for Obi's freedom."
Posted at 07:10 by Howard Bashman



Monday, December 29, 2003
"Court Tosses Suit Vs. Barbie Lampooner": David Kravets of The Associated Press provides this report.
Posted at 23:50 by Howard Bashman



Elsewhere in Monday's newspapers: The Los Angeles Times reports that "Jackson Says He'd 'Slit Wrists' Before Hurting a Child; In a TV interview, the singer denies molesting a boy and claims mistreatment by deputies." In other news, "Future of State's Private Prisons Remains Murky; Critics say the facilities have outlived their usefulness. Companies fight for survival and a bigger piece of the $5-billion-a-year industry." An article reports that "Western State Law School May Lose Its National Accreditation; The American Bar Assn. is concerned about high dropout rate, low scores at Fullerton institution." And letters to the editor appear under the headings "Anthrax Vaccinations for U.S. Soldiers" and "Political Theater in Lenny Bruce Pardon."

The Washington Times reports that "Anger and grief are the lot of sniper victims' families." An op-ed by Nat Hentoff is entitled "The Constitution in wartime." And an op-ed by Terence P. Jeffrey is entitled "ACLU targets Navy."

The Boston Globe reports that "Maine couple view penalty for son's crime as excessive." In other news, "Injured electrician wins $2.1m in suit." An article reports that "Firms scramble in face of spam law; Have little time left to tweak marketing." In politics, "Getting your name on this Deans list gets you attention." And an op-ed by Cathy Young is entitled "Christmas tree freedom."
Posted at 23:20 by Howard Bashman



Commentary recently published online at FindLaw: Today, Anthony J. Sebok has an essay entitled "A Recent California Appellate Decision Underlines the Importance of the Supreme Court's 2003 Pronouncements on Punitive Damages." Last Friday, Vikram David Amar had an essay entitled "The Bush Administration's Biggest Legal Setbacks To Date in the War on Terror, And What They Tell Us." Last Thursday, Edward Lazarus had an essay entitled "The Supreme Court Considers Sophisticated Political Gerrymandering: Are Voting Rights Preserved If Boundaries are Drawn to Ensure Particular Election Outcomes?" Last Tuesday, Julie Hilden had an essay entitled "Bono, Nicole Richie, and The F-Word: The Insanity of Broadcast Indecency Law." One week ago today, Joanne Mariner had an essay entitled "Battlefield Chicago? In the Jose Padilla Case, The U.S. Court of Appeals for the Second Circuit Says No." And also one week ago today, Elaine Cassel had an essay entitled "The Strategy Behind Raising a Weak Insanity Defense in the Malvo Case: Why the Defense May Help Malvo Avoid the Death Penalty."
Posted at 22:55 by Howard Bashman



Access online today's ruling of the U.S. District Court for the District of New Hampshire enjoining enforcement of that State's Parental Notification Prior to Abortion Act: The decision can be accessed here. The law was scheduled to go into effect later this week.
Posted at 22:40 by Howard Bashman



Available online at law.com: Tony Mauro has an article headlined "Supreme Changes: In ways small and large, the high court opened up and recognized a wider world." And in news from the U.S. Court of Appeals for the Second Circuit, "Challenge to U.S. Meat Inspections Moves Forward."

Also, from Legal Times (free registration required), Tony Mauro has an article headlined "Recalling a Battle in an Ongoing War; William Colby went to the Supreme Court in 1989 to argue Nancy Cruzan's right to die. The memory still stings." And Philip Allen Lacovara has an op-ed entitled "Off to Work They Go: The Supreme Court decides far fewer cases than it once did. We could use more justice from the nine justices."
Posted at 22:20 by Howard Bashman



Join together with the ban: Election law blogger Rick Hasen has found a typo in Chief Justice William H. Rehnquist's separate opinion (see the fourth line of the first full paragraph on page five of the PDF file) in the Bipartisan Campaign Reform Act case. (The title of this post is based on The Who's "Join Together.")
Posted at 20:46 by Howard Bashman



What's in a Name? Today a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued an opinion resolving "how the citizenship of a Lloyd's of London underwriter suing on its own behalf is to be determined for diversity purposes." This and related questions had given rise to a circuit split even before today's ruling. U.S. District Judge Jay C. Zainey, sitting by designation from the U.S. District Court for the Eastern District of Louisiana, wrote the Fifth Circuit decision in this matter.
Posted at 19:15 by Howard Bashman



Darryl Hunt is freed from prison in North Carolina after serving 18 years for a murder authorities now believe he did not commit: I previously noted a series of articles that The Winston-Salem Journal had published about this case. The latest news is accessible here.
Posted at 17:36 by Howard Bashman



Ten Commandments update from Georgia: The Gainesville Times reported two Saturdays ago that "Barrow commandments suit to proceed." The Athens Banner-Herald reported that day that "Barrow motion stopped in court." The Gwinnett Daily Post reported that "Judge: ACLU can proceed with lawsuit" and that "Barrow to appeal federal judge’s ruling on ACLU suit." And The Northeast Georgian offers an article headlined "County may be stuck with paying attorney fees" that begins, "The fate of $1 may cost Habersham County $70,000."
Posted at 17:27 by Howard Bashman



Ninth Circuit opinion issued today creates intra-circuit split over correct way to spell "Dr. Seuss": A gimlet-eyed reader notes that the nude Barbie opinion (which I originally noted here) spells the good doctor's name variously as "Dr. Seuss" and as "Dr. Suess." Suffice it to say that only one of those two spellings is correct.
Posted at 17:25 by Howard Bashman



Divided en banc Second Circuit upholds constitutionality of the "honest services" amendment to the federal criminal statute prohibiting wire and mail fraud: You can access at this link the lead opinion that the en banc U.S. Court of Appeals for the Second Circuit issued today. Circuit Judge Robert D. Sack issued the lead opinion, which serves as the opinion for the court in part and a plurality opinion in part. Joining in the lead opinion in full were Circuit Judges Guido Calabresi, Chester J. Straub, Rosemary S. Pooler, and Sonia Sotomayor. Circuit Judge Robert A. Katzmann concurred in part and filed a separate opinion in part. Circuit Judge Reena Raggi issued an opinion concurring in the judgment. Circuit Judge Dennis Jacobs issued a dissenting opinion, in which Chief Judge John M. Walker, Jr. and Circuit Judges Jose A. Cabranes and Barrington D. Parker, Jr. joined. Chief Judge Walker also filed a separate dissent, in which Circuit Judge Cabranes joined.
Posted at 16:47 by Howard Bashman



"Inmate Deemed Retarded Still on Death Row": The Associated Press reports here that "The Virginia inmate whose case persuaded the U.S. Supreme Court to bar the execution of mentally retarded killers remains on death row more than a year later, and prosecutors are determined to see him die."
Posted at 14:40 by Howard Bashman



Divided three-judge Ninth Circuit panel upholds legality of Oregon law that prohibits homeowner from displaying highway billboard favoring peace in the Persian Gulf: You can access today's ruling at this link.
Posted at 13:41 by Howard Bashman



Ninth Circuit rebuffs Mattel's challenge to artist's photographs depicting nude Barbie about to be attacked by vintage household appliances: The U.S. Court of Appeals for the Ninth Circuit has today issued this opinion. Aside from being of interest to fetishists, the opinion will also be of interest to those concerned with the "fair use" copyright doctrine.
Posted at 13:30 by Howard Bashman



"N.H. Judge Nixes Abortion Notification": The Associated Press provides this report.

And from Austin, Texas, The Houston Chronicle today reports that "New year will bring Texans new rules on abortions, higher tuition." Texas-based blogger Jim Dedman provides more details about, and his opinion concerning, the new abortion regulations here.
Posted at 13:19 by Howard Bashman



"He is a self-described twice-baptized lover of gospel music, yet he passionately asserts that the Ten Commandments do not belong on government property." An article headlined "Fighting for our rights" appears today in The Daily Journal of Johnson County, Indiana. The article profiles the executive director of the Indiana Civil Liberties Union.
Posted at 12:42 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Lionel Tate Expected to Accept Plea Deal" and "Judge Upholds R.I. Smoke-Shop Shutdown."
Posted at 12:32 by Howard Bashman



Access online the American Legion's amicus brief filed in the Pledge of Allegiance case pending before the U.S. Supreme Court: The brief, filed by attorneys practicing at Winston & Strawn, can be viewed here. Thanks much to the reader who provided this brief to me via email.
Posted at 12:21 by Howard Bashman



"Split over gay marriage; Coloradans divided on ban, but many back civil unions": This article appears today in The Rocky Mountain News.
Posted at 09:19 by Howard Bashman



"Activists seek vote for ex-felons": The Orlando Sentinel today contains this article (free registration required).
Posted at 09:18 by Howard Bashman



"Abortion bills resurface; Provo senator sees swift approval in the Legislature": This article appears today in The Deseret Morning News.
Posted at 09:17 by Howard Bashman



"UT may include race again in admissions policy": The Associated Press provides this report from Austin, Texas.
Posted at 09:16 by Howard Bashman



"4 conservative groups offer to defend city against ACLU suit": Today's issue of The Providence Journal contains an article (free registration required) that begins, "Four conservative organizations have volunteered to defend the city, at no cost, against a federal lawsuit brought by the Rhode island Affiliate of the American Civil Liberties Union over the city's holiday display."
Posted at 09:14 by Howard Bashman



"End 'secret' selection of top judges; Public 'has right' to know who is shaping law, justice minister says": The Ottawa Citizen today contains this report.
Posted at 09:12 by Howard Bashman



"Verdict in cigarette trial draws national eye": This article appears today in The Telegraph.
Posted at 09:11 by Howard Bashman



Is Justice William J. Brennan, Jr.'s biographer dawdling? Jeffrey Toobin has this essay in the January 5, 2004 issue of The New Yorker.
Posted at 09:00 by Howard Bashman



Available online at law.com: Jonathan Groner reports that "After 20 Years, New Twist in Custody Case." In news from Florida, "Court Finds Felon Disenfranchisement Law Discriminatory." In news from California, "Battle Over Dead Crooner's Attorney-Client Privilege." In other news from California, "Third Trial Likely in Suit Against Beretta." An article reports that "Enron Fallout Creates Chinks in V&E's Armor." And in other news, "Georgia Judge Avoids Grand Jury Indictment; Jurist accused of making terrorist threats, altering public records."
Posted at 08:55 by Howard Bashman



"Short-Circuited Reasoning and Obstructionist Filibustering: The 9th Circuit--where judicial activists run amok--and Senate liberals who want to keep it that way." Jan LaRue, chief counsel of the organization Concerned Women for America, today has this essay posted online at that organization's Web site.
Posted at 08:05 by Howard Bashman



Today at National Review Online: Michael Fumento has an essay entitled "Opt-Out Military: Hysteria leads to judicial overreach -- and national-security danger." And Michael Knox Beran has an essay entitled "'Never Forget: They Kept Lots of Slaves.' The latest maneuver in the culture wars, and how it is distorting our thinking about the Founding Fathers."
Posted at 07:58 by Howard Bashman



Caution -- geek-speak ahead: In an effort to avoid link-rot -- the phenomenon whereby links to a resource that work today are rendered less useful or, more often, entirely useless by the passage of time -- as of this morning I have begun to link to articles published in the print version of The New York Times using the method that Dave Winer describes here. As a result, links to NYTimes articles will henceforth contain more text than they previously did. The good news is that this additional text in the link will only be noticeable if you click on, hover over, or email a link to a NYTimes article. And, of course, if a link seems too lengthy to email, you can always use TinyURL.com or a similar resource.
Posted at 07:44 by Howard Bashman



In Monday's newspapers: The New York Times contains an article headlined "This Car Can Talk. What It Says May Cause Concern." An article reports that "I.R.S. Unit Will Focus on Lawyers and Accountants." In other news, "Women Find a New Arena for Equality: Prison." In business news, "Studios Fight Piracy With Education." A "Critic's Notebook" essay is entitled "Lenny Bruce, Pardoned and Laughing." And a letter to the editor appears under the heading "The Death Penalty."

The Washington Post contains a front page article headlined "Worried Pain Doctors Decry Prosecutions." A related article reports that "High-Dosage Opioids Saved His Life, Patient Says." "The Lawyer's Column" today is headlined "2 Who Challenged the Status Quo and Won." An editorial is entitled "An Endangered Act." An op-ed by Richard Arum is entitled "For Their Own Good: Limit Students' Rights." And an op-ed by Lee A. Casey and David B. Rivkin Jr. is entitled "When International Justice Works."

The Christian Science Monitor contains an article headlined "Three FBI agents on trying to prevent another 9/11." And an article reports that "The Internet hasn't reeled in everyone yet."

Finally for now, The Wall Street Journal contains an editorial entitled "The Politics of Autism: Lawsuits and emotion vs. science and childhood vaccines."
Posted at 07:07 by Howard Bashman



Sunday, December 28, 2003
"Green River killings point up prostitutes' plight; Contrary to popular belief, relatives, customers grieve": This article appears in Sunday's edition of The San Francisco Chronicle.
Posted at 23:57 by Howard Bashman



Elsewhere in Sunday's newspapers: The Washington Times reports that "More states allow felons to regain vote, study finds." A report from The Associated Press is headlined "Museum tempers jurist in Dred Scott case." And Cal Thomas has an op-ed entitled "Can marriage be saved?"

The Boston Globe reports that "Ind., Ill. eyeing registry of murderers." An article is headlined "Cleared by a jury, but not by Harvard; Former student seeks to return." In business news, "Fed up with Fedex over package coverage; Only $88 to replace a broken monitor? Read the fine print." And an op-ed by Jeff Jacoby is entitled "Hate speech of the left."

The Los Angeles Times reports that "Sex, War, Court Decisions Figured in Events of Faith." An article reports that "Despite State Promises, Reform Eludes Prisons; Court and State Senators Are Investigating Coverup Allegations." In news from Sacramento, "Laws Breaking New Ground Are Blunted; Though hundreds of new measures will take effect, one major bill has been repealed and two may have been replaced by federal legislation." The AP reports that "Japanese Couple Fight for Sons' Citizenship." An editorial is entitled "Ground the Space Shuttle." Carlos Rajo Ramos has an op-ed entitled "Intolerance Drives License Law Repeal; California benefits from illegal workers' labor. Why deny them use of a car?" And letters to the editor appear under the heading "Taking the Pledge for a Minority's Rights."
Posted at 23:50 by Howard Bashman



Pennsylvania's highest court reinstates newspaper's lawsuit alleging unequal treatment filed against state legislator: The newspaper involved is The Herald-Standard, and it reports on Friday's ruling (consisting of a majority opinion; an opinion concurring and dissenting; and a dissenting opinion) of the Supreme Court of Pennsylvania in articles headlined "State judges remand newspaper's case against lawmaker to lower court" and "Attorney has mixed feelings about Supreme Court ruling."
Posted at 23:40 by Howard Bashman



"State to appeal court’s ruling on Lionel Tate": The South Florida Sun-Sentinel reports here today that "The State Attorney General's Office will ask the 4th District Court of Appeal on Monday to reconsider a decision throwing out Lionel Tate's first-degree murder conviction and life sentence."
Posted at 23:25 by Howard Bashman



"County judge named to federal bench in 2003": Today's edition of The Daily Local News of West Chester, Pennsylvania contains this report.
Posted at 23:10 by Howard Bashman



"Judge works to keep settlement between NHL, family sealed; Agreement not made public after girl killed by puck": This article appeared in yesterday's issue of The Dayton Daily News.
Posted at 23:04 by Howard Bashman



In Sunday's newspapers: The Washington Post reports that "U.S. Immigration Restrictions Give Gay Couples Few Options." And an editorial is entitled "2003: The Year in Death."

The New York Times contains an article headlined "Eclipsed by Lenny Bruce Pardon, a Clemency That Counts." And a letter to the editor appears under the heading "Workplace Safety: The View at OSHA."

Finally, OpinionJournal contains an editorial entitled "California Jail Break: Private prisons could help free the Golden State."
Posted at 12:15 by Howard Bashman



"Heir pushes for DNA use in his paternity suit; A scion of the Johnson & Johnson fortune wants a new law so he can limit a daughter's inheritance." Today The Philadelphia Inquirer contains this article.
Posted at 09:50 by Howard Bashman



"'Teaching law...it doesn't get any better than that'; New dean of USC School of Law eagerly prepares to tackle challenges": This article appears in today's issue of The State.
Posted at 09:49 by Howard Bashman



"Judges beginning to balk in war on terror": Knight Ridder Newspapers provide this report. And The Miami Herald reports here this morning that "Guantanamo sovereignty issue key to captives' fate."
Posted at 09:48 by Howard Bashman



Saturday, December 27, 2003
"Let Tom Feeney be the judge": The current issue of Orlando Weekly contains an article that begins, "On the morning of March 27, Tom Feeney rose from his seat in the House of Representatives and with six words began a legal insurrection heard across America. The words were harmless enough: 'Mr. Chairman, I offer an amendment.' It was what was inside the amendment that caused federal judges and legal scholars to lash out at Feeney, a 45-year-old Oviedo Republican, and other like-minded members of congress."
Posted at 22:56 by Howard Bashman



Elsewhere in Saturday's newspapers: The Los Angeles Times takes a look back at 2003 in an article headlined "Fame and Fortune, Law and Order Were Themes; Celebrities fended off accusations and the U.S. Supreme Court derailed old cases against priests." In news from Florida, "New Plea Deal Could Free Boy Sentenced to Life for Murder." An obituary is headlined "Anthony Nugent, 83; Missouri Judge Lost Fight on Retirement." A front page article is headlined "A Hybrid Tongue or Slanguage? Spanglish, a mix of Spanish and English, is hip lingo to some -- including marketers -- but a mangling of two languages to others." And an editorial is entitled "More Spine for Ethics Rules."

The Boston Globe contains an editorial entitled "Reliable voting." And an op-ed by Richard A. Hogarty is entitled "Defining marriage is legislators' job."

Finally for now, The Washington Times contains an op-ed by Walter Williams entitled "Parting company option."
Posted at 22:10 by Howard Bashman



"Teacher fired over abortion ad sues; Catholic diocese points to its right to practice, uphold religious beliefs": The Associated Press today provides this report. The Wilmington (Del.) News Journal has covered this story closely since the teacher was fired, and you can access that newspaper's reports here, here, here, and here.
Posted at 20:18 by Howard Bashman



"New bid to stop asylum appeals": This article appears in today's edition of The Australian.
Posted at 20:12 by Howard Bashman



"Lawsuit over uncut grass grows nowhere": The Cleveland Plain Dealer provides this report today.
Posted at 20:09 by Howard Bashman



"Judgment juggling act: Supreme Court must balance trade, domestic issues in ruling on Mexican trucks." This editorial appears today in The Arizona Republic.
Posted at 20:08 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Expanded fed role against common crime called 'out of control'"; "Which Sniper Fired Remains a Question"; "Inmate: Six-day wait to see judge too long"; "Louisiana high court ponders $1.3 billion oyster judgment"; "If asbestos bill becomes law, it is likely to end up in court"; and "Bush Makes a Dozen Recess Appointments."
Posted at 20:06 by Howard Bashman



The Arizona Republic names U.S. Supreme Court Justice Sandra Day O'Connor "Arizonan of the Year" for 2003: This editorial will appear in tomorrow's newspaper.
Posted at 19:57 by Howard Bashman



Yesterday the White House announced various recess appointments: None, however, involved the federal judiciary. You can access the announcement at this link.
Posted at 10:28 by Howard Bashman



In Saturday's newspapers: The New York Times reports that "U.S. Asks Judge to Lift His Ban on Pentagon's Anthrax Vaccination Program." In news from Florida, "Boy Serving Life Sentence Is Reoffered Plea Bargain." An article reports that "Losing Crusade May Still Pay Dividends for a Senator." In other news, "Presidential Campaign Was Cited During Talks to Seal Dean's Papers as Governor." In news from Connecticut, "Playground Injury Harmed Son's Career, Mother Says." And letters to the editor appear under the headings "Jose Padilla and Due Process" and "Obscenity in America."

Finally for now, The Washington Post reports that "Lieberman Defends Abortion Remarks; Roe Stance Misreported, Senator Says."
Posted at 10:22 by Howard Bashman



"Baer ready to slug it out on state Supreme Court": This article appears today in The Pittsburgh Post-Gazette.

And in other statewide judicial election-related news from Pennsylvania, The Philadelphia Inquirer today reports that "A long recount leaves a Pa. court up in the air; Eight weeks after Election Day, the final spot on Superior Court is still undecided."
Posted at 09:02 by Howard Bashman



Friday, December 26, 2003
Elsewhere in Friday's newspapers: USA Today reports that "Mass. about to alter gay-marriage debate; If state makes unions legal, rest of nation may be forced to recognize them as well." And an editorial is entitled "Malvo gets justice, not death."

The Los Angeles Times reports that "Clinton Loyalist Returns as a Go-to Man for Money; Supreme Court ruling that upheld the ban on 'soft' donations made Harold Ickes a player once again for the Democratic Party." In other news, "State Juvenile Court Still Struggles to Find Balance; Participants in the system gather in L.A. for its 100th anniversary and discuss how best to blend punishment and rehabilitation." An article reports that "Disease Heightens Beef Debate; A 'mad cow' find puts new emphasis on a call to ban the use of meat from disabled cattle." In news from Iowa, "Townsfolk Look the Other Way in Abuse and Slaying; They kept quiet when Scott Shanahan beat his wife. Now they're just as quiet about his killing." The final report in the six-part series "Butterfly on a Bullet" is headlined "Swallowing the fire: Columbia's final voyage." And an editorial is entitled "Rights and Raunchy Talk."

The Boston Globe reports from California that "Jackson's trial could strain county's resources."

The Washington Times reports that "Conservatives work to deflect Specter." Steve Chapman has an op-ed entitled "Innocent truth about false confessions." Michael De Alessi has an op-ed entitled "The Endangered Species Act." And Paul Rosenzweig and Trent England have an op-ed entitled "Hedged in by the law."
Posted at 22:10 by Howard Bashman



Perhaps not what Dante had in mind: The blog "SPITBULL" has a quite interesting post entitled "Seventh Circuit of Hell" discussing my "20 questions for the appellate judge" interview with Seventh Circuit Judge Richard A. Posner. Expanding on the theme, a rather new post there is entitled "Ninth Circuit of Hell," and it focuses on the even more recent profile in Legal Affairs of Ninth Circuit Judge Alex Kozinski.

And while I'm doing shout-outs to other blogs, let me take this quite belated opportunity to say thanks to the blog "The Serious Law Student" for this mention of "How Appealing."
Posted at 19:30 by Howard Bashman



"Fla. Prosecutors Offer Deal in Murder Case": The Associated Press reports here that "Prosecutors said Friday they have offered Lionel Tate a plea bargain that could mean almost immediate freedom for the boy whose murder conviction and life sentence in the slaying of a 6-year-old playmate were thrown out earlier this month." And The South Florida Sun-Sentinel is reporting that "Prosecutors to re-offer a 2001 plea deal to Lionel Tate."
Posted at 17:15 by Howard Bashman



Welcome New Zealanders! What would it take to cause a whole bunch of New Zealanders to visit "How Appealing"? First, it would take an article from Reuters about the Michael Jackson child molestation prosecution that happens, in passing, to mention a couple of law-related Web logs, including this one. And then it would require XtraMSN, a popular Web portal in New Zealand, to feature that article on the front page of its site. Quite bizarre indeed.
Posted at 16:10 by Howard Bashman



Access online the printed pamphlet version of the federal government's opening brief on the merits in the Pledge of Allegiance case pending in the U.S. Supreme Court: It is available online here. Thanks to Marty of SCOTUSblog for the pointer. (I previously linked to the typescript version of this brief a few days ago.)
Posted at 16:00 by Howard Bashman



From this morning's broadcast of NPR's "Morning Edition": This morning's broadcast contained the following reports (Real Player required): "NPR Poll: Gay Marriage Sharply Divides Likely Voters" and "Georgia Inmates Represented by Virtual Lawyers." You can access much more information concerning the NPR poll here and here (both PDF files).
Posted at 14:20 by Howard Bashman



"Former Lodi attorney defends display of Ten Commandments in Alabama": This article appears in today's issue of The Lodi News-Sentinel.
Posted at 13:30 by Howard Bashman



"Getting to the Source: The curious evolution of reporters' privilege." Slate has just posted online this Jurisprudence essay by Stephen Bates.
Posted at 11:57 by Howard Bashman



"Child model, actor seeks compensation after playground mishap": The Stamford (Ct.) Advocate reports here today that "A 2-year-old model and actor from Old Greenwich is seeking lost wages and other compensation from the city of Stamford after cutting his head at a public playground."
Posted at 10:57 by Howard Bashman



In Friday's newspapers: The Christian Science Monitor today reports that "Fewer minors being sentenced to death; Malvo's prison term marks a broader trend away from capital punishment for juveniles."

The Washington Post reports that "Leaks Probe Is Gathering Momentum." An article in the Style section is headlined "King of Pop as Court Jester; Message to Michael: This Time, Wear Clothes That Are Easier to Defend." David Moats has an op-ed entitled "Adapting Liberty To the Times." And letters to the editor appear under the heading "Tilting Toward Windfalls -- for the Rich."

The New York Times contains an article headlined "Eating People Is Wrong! But Is It Homicide? Court to Rule." And letters to the editor appear under the headings "Death at Work: Who Is to Blame?" and "Spying Cellphones."
Posted at 10:30 by Howard Bashman



"Lawyer in attorney general's office sues supervisors": The Pittsburgh Post-Gazette today contains an article from The Associated Press that begins, "Former Attorney General Mike Fisher and high-ranking officials under him have been sued by a lawyer in the attorney general's Pittsburgh office who claims she was retaliated against for blowing the whistle on 'arguably criminal' handling of a trust case."

The article goes on to note that D. Michael Fisher recently began serving as a judge on the U.S. Court of Appeals for the Third Circuit, and that the plaintiff in the suit is Rita J. Cindrich, the sister of U.S. District Judge Robert J. Cindrich, who serves on the U.S. District Court for the Western District of Pennsylvania (and who, coincidentally, had been nominated to serve on the Third Circuit by President Clinton).
Posted at 09:05 by Howard Bashman



"Ruling on race in admissions gets wider use": Stephen Henderson has this article today in The Philadelphia Inquirer. And in somewhat related news, the current issue of Newsweek contains this profile of Mary Sue Coleman, president of the University of Michigan.
Posted at 09:00 by Howard Bashman



Thursday, December 25, 2003
Elsewhere in Thursday's newspapers: The Los Angeles Times reports that "White House Change to Clean Air Act Blocked; Federal appeals court panel rules that letting companies put off installation of pollution controls could cause 'irreparable harm.'" Law Professor David Cole has an op-ed entitled "Courts Put a Dent in Bush's 'Say-So' Detentions; When it comes to post-9/11 jailing without charges, the president is not a king." And letters to the editor appear under the heading "'Don't Ask, Don't Tell' Policy Is Self-Defeating."

The Washington Times reports that "Malvo may face another capital trial in Louisiana" and that "Malvo got life term by default."

And finally for now, The Boston Globe reports that "Execution foes spin Sampson verdict; Critics say case doesn't reflect state opinion."
Posted at 23:25 by Howard Bashman



"Top court rejects Filipino women's sex-slave suit": The Japan Times provides this report.
Posted at 22:33 by Howard Bashman



Access online The Rutherford Institute's amicus brief in the Pledge of Allegiance case: The brief can be viewed at this link, and you can access here a related press release that the organization has issued.
Posted at 22:22 by Howard Bashman



In Thursday's newspapers: In The New York Times, Adam Liptak reports that "Penalty for Young Sniper Could Spur Change in Law." In other news, "Court Blocks U.S. Effort to Relax Pollution Rule." An article reports that "Teenage Immigrant Is Freed After 3 Years in Detention." In appellate news from New York State, "Dog Keeps Tail, Owner Keeps Pride and Club Keeps Its Rule." In mad cow news, "U.S. Scours Files to Trace Source of Mad Cow Case" and "Businesses Tied to Beef Expect to Feel a Pinch." An editorial is entitled "Mad Cow in America." And letters to the editor appear under the heading "Lenny Bruce, Vindicated at Last."

The Washington Post reports that "Court Blocks Clean-Air Change; Panel Acknowledges Pollution Concerns." In news from Virginia, "Prosecution Groundwork Laid for More Sniper Trials" and "Mistaken Belief About Mistrial Troubles Jurors." An article reports on "791 Inmates, 26 Religions In 'Faith-Based' Fla. Prison." In mad cow-related news, "Inspection Practices Examined; Using Meat From 'Downers' Decried"; "U.S. Recalls Meat Linked To Wash. Slaughterhouse; Mad Cow Fears Lead Growing List of Nations to Halt Beef Imports"; "'We Were Lucky About One Thing'; Company Owner Says Meat All Went to Same Customer"; and "Mysterious Proteins to Blame; Transmission Was A Puzzle for Years." In news from Maryland, "Judge Reprimanded for Commenting on Pending Case." And an editorial is entitled "Cow Madness."
Posted at 22:03 by Howard Bashman



"Analysts: Supreme Court case most important of 2003; Affirmative action ruling topped a year of celebrity cases." CNN.com offers this report.
Posted at 19:11 by Howard Bashman



Wednesday, December 24, 2003
"Presidential Powers: A Court Pushes Back; How do you solve a problem like Padilla?" I'm still getting used to Newsweek's recently unveiled Web redesign. But now that I have read this article in the hard copy of the magazine, I can assure you that it's well worth a look. Especially if you are curious to learn which high-ranking Bush Administration attorney, according to reporter Michael Isikoff, advised against holding Jose Padilla as an enemy combatant.
Posted at 23:55 by Howard Bashman



Reuters article about law and the Internet mentions "How Appealing": You can access today's article directly from Reuters at this link and this link or via USA Today at this link.
Posted at 23:33 by Howard Bashman



"Format issues hold up 10 Commandments display": An article that will appear tomorrow in The Atlanta Journal-Constitution begins, "It will be sometime in 2004 before the Ten Commandments and other documents pertinent to Georgia history are hung in the Cherokee County Justice Center, officials say."
Posted at 23:28 by Howard Bashman



"Victim wants teen tried here": Today's edition of The Montgomery Advertiser contains an article that begins, "A Virginia jury's decision to spare the life of Lee Boyd Malvo on Tuesday left Kellie Adams hoping the convicted sniper would face a less merciful jury in Alabama."
Posted at 23:25 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Boston Globe provides extensive coverage of a Boston federal jury's decision yesterday to recommend a death sentence for Gary Lee Sampson. Accessible online are articles headlined "Death for Sampson; Verdict makes him state's first since 1947 to face execution"; "Decision expected to fuel capital punishment drive"; "Sullivan pushed for death from start"; "Deliberations called careful, methodical"; "Grisly facts hurt defense's gamble"; "A sense of relief, but little celebration"; "Sentence to be appealed"; and "Reactions to the verdict." A related editorial is entitled "The demands for death." And in other news, "1st US case of mad cow disease is suspected."

The Los Angeles Times reports that "Malvo Is Spared Execution." An article reports that "Jury in Massachusetts Issues Death Sentence; Capital punishment is banned by the state, but a federal panel decided the penalty for Gary Sampson, convicted of two murders in 2001." In other news, "Judge Is Assigned to Jackson Case; Rodney S. Melville's background as an innovator and his courtroom demeanor make him a perfect choice, lawyers say." In news from Florida, "Judge Opens Limbaugh Records to Prosecutors." An article reports that "Pentagon Criticizes Ruling Halting Troops' Anthrax Shots." In other news, "'Obscene' Comic Bruce Gets a Pardon; New York governor cites the 1st Amendment in acting 39 years after the late satirist's conviction." An article reports that "Mass Killer's Bid for Release Denied; The man who shot seven to death at Cal State Fullerton in 1976 loses on appeal to state high court." In other news, "Appeals Court to Rule on Ballot Effort; Judges will hear challenge to state law requiring employers to pay workers' health insurance premiums." An article reports that "Bovine Disease Surfaces in U.S.; Holstein in Washington state may be the nation's first case of 'mad cow' illness. Officials don't know whether its meat was sold as food." Two additional installments in the six-part series on the space shuttle Columbia are available online: "The Fate of a Wing Shaped by Politics: With 83,900 clues at their feet, investigators follow the heat. An outsider ponders the 'forgetting curve'" (part four) and "Firing Point-Blank at NASA’s Illusions: Was that a chunk of the shuttle that fell off in orbit? The Hog Works searches for an answer" (part five). An editorial is entitled "No Place for an Experiment." And David L. Tubbs has an op-ed entitled "Students Can Put Hands Over Their Hearts, or Their Ears; The Supreme Court should uphold the recitation of the Pledge of Allegiance."

USA Today reports that "Teen sniper eludes death, gets life; Sentence angers victims' relatives." An article reports that "Pentagon will obey ruling on anthrax." And in other news, "Mad cow threat hits USA; Official: Consumer risk 'extremely low.'"

The Washington Times reports that "Malvo sentenced to life in prison." And in other news, "U.S. gets first case of mad cow disease."
Posted at 22:45 by Howard Bashman



Available online at law.com: The Recorder reports that "California Sentencing Ruling Rapped as 'Confusing'" and that "California's High Court Changes Rules on Judge Ethics." In other news, "Sept. 11 Victim Fund Claims Surge." An article reports that "Report Claims Detainees Denied Rights in 9/11 Aftermath." And in news from Miami, "Sentencing Guidelines Face Test Case; Controversial law that changed how judges mete out prison time puts some defendants in limbo."
Posted at 22:20 by Howard Bashman



An additional, noteworthy Pledge of Allegiance amicus brief filed in the U.S. Supreme Court is accessible online: The amicus brief of the National Jewish Commission on Law and Public Affairs is available online here. Nathan Lewin is listed as the group's counsel of record. Thanks much to the reader who sent this brief to me via email today.
Posted at 19:50 by Howard Bashman



"Court says two can be tried for one crime; Prosecutions legal, but 'deplorable'": Bob Egelko has this article in today's edition of The San Francisco Chronicle. The subject of the article is this decision that a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued on Monday.
Posted at 16:00 by Howard Bashman



The Associated Press is reporting: An article reports that "Court Backs IRS Political Disclosure Law." You can access today's ruling of the U.S. Court of Appeals for the Eleventh Circuit at this link.

In news from the U.S. Court of Appeals for the D.C. Circuit, "Court Blocks Changes to Clean Air Act." And in other news, "Snipers Face More Death Penalty Trials"; "Jurors Split on Malvo Fate in Sniper Case"; and "JonBenet Parents Sue Fox for Defamation."
Posted at 15:10 by Howard Bashman



Never mind: Today an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit issued an order noting that the federal government had confessed error in a pending en banc case that called on the court to decide when, if ever, issue preclusion can be used against a defendant in a criminal prosecution. The original three-judge panel opinion that the Ninth Circuit issued back in April 2003 can be viewed here.
Posted at 15:00 by Howard Bashman



En banc Seventh Circuit splits 6-5 over applicability of sentencing enhancement for use of fire in the commission of a crime: You can access today's en banc ruling at this link.
Posted at 14:55 by Howard Bashman



Here it is: The pro bono amicus curiae brief that the U.S. Court of Appeals for the Third Circuit last month appointed me to file is now off being copied and will soon be on its way to the federal courthouse for filing. Thanks to the miracle of technology, the brief can be accessed online here. This case is scheduled to be argued in Philadelphia during the week of January 19, 2004 before a panel consisting of Circuit Judges Dolores K. Sloviter, Samuel A. Alito Jr., and Michael Chertoff. This will be my first oral argument before Judge Chertoff, so I'll be especially looking forward to that.
Posted at 14:33 by Howard Bashman



Eighth Circuit gossip: Jerry Berger of The St. Louis Post-Dispatch writes here today that "Bryan Cave barrister Jerry Hunter has declined a presidential appointment to the coveted U.S. 8th Circuit Court of Appeals. The position is one of the most sought-after by aspiring lawyers and judges."
Posted at 10:22 by Howard Bashman



Not only is it Christmas Eve: Additionally, today is the due date for the pro bono amicus brief that the U.S. Court of Appeals for the Third Circuit late last month appointed me to file in an appeal presenting the question whether a pro se lawyer should be entitled to recover attorneys' fees under the common fund doctrine in a shareholder derivative suit. I was appointed to serve as amicus in support of affirmance of the district court's ruling, which refused to award attorneys' fees. Perhaps later today, as the brief is heading out the door, I will post its contents online.
Posted at 09:32 by Howard Bashman



Deck the halls: The Palm Beach Post today reports that "Offer of alternate site for Nativity stirs anger." And The Providence Journal reports that (registration required) "Ghost of cases past will loom over ACLU suit."
Posted at 07:05 by Howard Bashman



"Lawyer published tell-all memoir; The year 2003 was a banner one for former Chester County lawyer Bob Surrick." This article appears today in The Daily Local News of West Chester, Pa. For some reason that guy sounds familiar.
Posted at 07:04 by Howard Bashman



The Houston Chronicle is reporting: Now available online are articles headlined "Injection appeals cite courts' mixed messages" and "U.S. court plans ruling next week on Texas remap; Could be plan's last hurdle."
Posted at 07:01 by Howard Bashman



"Another study confirms disparity of juries based on race": This article appears today in The Pittsburgh Post-Gazette.
Posted at 07:00 by Howard Bashman



"For teen, win contributes to freedom of expression; Political victory in court": The Athens Banner-Herald today contains an article that begins, "Thanks to a recent U.S. Supreme Court ruling, a Jackson County girl gets to put her 2 cents into federal politics - literally."
Posted at 06:58 by Howard Bashman



"Gary's gun lawsuit gets go-ahead; Ruling by state's top court may set stage for trial": This article appears today in The Indianapolis Star. And The Post-Tribune reports that "Gary gun lawsuit upheld." "The Indiana Law Blog" covers the ruling here and here.
Posted at 06:55 by Howard Bashman



In Wednesday's newspapers: The New York Times reports that "Countries Ban American Beef After U.S. Discovers Mad Cow Disease." In related coverage, "Inspections for Mad Cow Lag Those Done Abroad" and "Danger to the Public Is Low, Experts Say." In news from Virginia, Adam Liptak reports that "Younger Sniper Gets a Sentence of Life in Prison." In local news, "Judge Denounces Attorney General's Death-Penalty Push." John Kifner has an article headlined "No Joke! 37 Years After Death Lenny Bruce Receives Pardon." In other news, "Defense Dept. Halts Anthrax Vaccinations." An article is headlined "Mean Streets of New York? Increasingly, They're Found in Rochester." An editorial is entitled "Better Judges for New York." And letters to the editor appear under the heading "A Dividing Line Over Gay Marriage."

The Washington Post reports that "Mad Cow Case Found In U.S. for First Time; Infected Animal Killed In Washington State." In related coverage, "Beef Businesses May Be Hit Hard; Japan, S. Korea Stop Imports." In news from Virginia, "Malvo Is Spared Death Penalty; Jury Gives Teen Life Sentence For His Role in Sniper Slayings"; "Malvo's Age Was the Deciding Factor"; "Jurors in 1st Trial Confounded but Loath to Criticize; Teen Deserves Death, Panelists Say"; and "Tormented Jurors Argued, Cried and Wavered Before Agreeing to Life." In somewhat related coverage, "In Virginia, Convicts Find They're Not Too Young to Die; Jury Spares Malvo, but Another Teen Killer Waits on Death Row." An article reports that "In Canada's Marijuana Debate, Supreme Court Backs Criminal Penalties." In other news, "Anthrax Vaccinations Suspended; Program for Military On Hold While Legalities Are Explored." An article reports that "Lenny Bruce Pardoned For His Language." And in local news, "Guard Posed -- and Was Sent Packing; Fired Md. Prison Employee Sues, Claiming Rights Were Violated."

Finally for now, The Christian Science Monitor today contains an article headlined "Florida's new approach to inmate reform: a 'faith-based' prison."
Posted at 06:15 by Howard Bashman



Tuesday, December 23, 2003
Elsewhere in Tuesday's newspapers: The Los Angeles Times reports that "Key Court Victories Boost Medical Marijuana Movement; After several successes, a seven-year struggle by advocates nears a critical point in 2004." In other news, "Supreme Court Denies Defamation Lawsuit by Simpson Trial Witness; State justices say the woman missed a legal deadline to pursue the case. Media firms had opposed an earlier panel's decision." An article reports that "Most Families Seek 9/11 Aid; In lieu of suits, more than 92% of those eligible have applied for federal assistance." In other news, "Military to Halt Anthrax Shots; U.S. judge orders the Pentagon to stop treating its personnel like 'guinea pigs,' saying the mandatory vaccinations are illegal." In news from Virginia, "Jury Weighing Life or Death Sentence for Sniper Malvo; Prosecutors call for 'the ultimate penalty' as a defense lawyer pleads for compassion." In news from Berlin, "German Court Sends Singer to Prison for Neo-Nazi Lyrics." The third article in a six-part series entitled "Butterfly on a Bullet" is headlined "Exhuming Columbia, One Piece at a Time; Early on, investigators had to rely on informed guesswork. But the clues were pouring in." And Robert Scheer's column is entitled "Secrets, Lies and Media Privilege."

The Washington Times reports that "Military can't force anthrax vaccines, judge rules." In other news, "Texas Democrats taking last stand on redistricting." An article reports that "Jury deliberates Malvo penalty." Bruce Fein has an op-ed entitled "President's powers arrested." And William Goldcamp has an op-ed entitled "Indifference to liberty."

The Boston Globe reports that "9/11 families rush to apply for compensation; Some opt out, decry fund ban on lawsuits." And in other news, "Dean seeks distance from suit; Won't file answer; leaves matter to AG."

USA Today reports that "Judge halts mandatory anthrax shots for troops." An editorial is entitled "Federal anti-spam law guts tough state remedies." And U.S. Senators Conrad Burns (R-MT) and Ron Wyden (D-OR) have a related op-ed entitled "New law packs potent tools."
Posted at 22:02 by Howard Bashman



From tonight's broadcast of National Public Radio's "All Things Considered": Tonight's broadcast contained the following reports (Real Player required): "Jury Spares Malvo from Execution"; "Religious Right Chafes at Judiciary's Restraint"; "Sept. 11 Compensation Filings Exceed Goals"; "Family, State Lawyers Argue Schiavo Case"; "Mad Cow Disease Feared in Washington State"; and "New York's Pataki Pardons Lenny Bruce."
Posted at 21:49 by Howard Bashman



Access online the defense closing argument in the penalty phase of the Lee Boyd Malvo trial: According to Adam Liptak's recap online at The New York Times Web site of today's sentence of life without parole, during the closing argument:
Mr. Cooley [one of Malvo's attorneys] asked jurors to consider their individual responsibility for imposing the death penalty, recalling that "in ancient times execution was a participatory activity." Jurors back then, he said, would stone the defendant to death and then retrieve their bloody weapons.

He walked to the counsel table and picked up a heavy stone, weighing it in his hand.
You can access the complete transcript of the defense closing argument here (page one) and here (page two). The complete text of the passage to which Liptak refers follows:
In ancient times, execution was a participatory act. Each member of the jury would go and arm themselves with a stone, and then they would hurl it into the head or body of the defenseless accused, and after it was over, each would retrieve their stone, and it would be soaked with the blood of the condemned. You are not holding it, but you can feel the weight of the stone. This stone has no humanity. This stone is ungiving. It is unfeeling. This stone has no compassion, and once it has been cast, it has no ability to temper its impact, and after you have cast it, you can feel on your fingertips the grip of the stone, and you know you've thrown it.

The Commonwealth urges you to vote to kill, to stain your stone with the blood of this child. The prosecution urges you to take up the stone. Your humanity challenges you to let this stone lie. A sentence of death requires unanimity. That means in order for an execution to occur, each of you must actively participate or worse, acquiesce in that decision. I beg each of you to consider and hold onto your conscientious beliefs.
In other coverage, The Washington Post reports that "Jurors Spare Malvo Death Sentence."
Posted at 19:25 by Howard Bashman



The major wire services are reporting: The Associated Press is reporting that "First-Ever U.S. Mad Cow Case Suspected"; "Mad Cow Comes After Sick Animal Ruling"; "Fla. Judge Ready to Rule on Schiavo Law"; and "Myers: Troops Need Anthrax Vaccinations."

Reuters, meanwhile, is reporting that "Jury Spares Teen Sniper Malvo's Life"; "U.S. reports first case of mad cow disease"; and "Judge Bars New Evidence in Right-To-Die Case."
Posted at 19:10 by Howard Bashman



"Sniper Malvo Gets Life in Va. Slaying": The Associated Press provides this report.
Posted at 16:40 by Howard Bashman



For those who believe Lee Boyd Malvo deserves the death penalty: A prosecution in Alabama would now appear to be your best hope. More information on the Alabama connection can be accessed here. Update: Also, don't overlook Louisiana, which remains in the running for reasons that are explained here.
Posted at 16:23 by Howard Bashman



Fourth Circuit prohibits Zacarias Moussaoui from making any additional pro se filings: Just in time for the holidays, the U.S. Court of Appeals for the Fourth Circuit today issued an order that requires Zacarias Moussaoui to keep his zany musings to himself. The Fourth Circuit's electronic docket, accessible here, reflects the names that Moussaoui has assigned to his many pro se filings.
Posted at 16:16 by Howard Bashman



BREAKING NEWS: The jury has recommended a sentence of life imprisonment without parole for Lee Boyd Malvo. Accordingly, he will not be receiving the death penalty in Virginia as a result of his participation in the DC-area sniper killings.
Posted at 16:13 by Howard Bashman



False alarm: The jury in the Lee Boyd Malvo trial returned to the courtroom with the verdict slip partially completed to show a sentence on only one of the three counts. The jury was thus returned to the jury room to complete its task. Whether this was an error in failing to complete the verdict slip fully or an error in failing to understand that the sentence on all three counts of conviction had to be arrived at before the sentence could be returned remains to be seen.
Posted at 16:02 by Howard Bashman



BREAKING NEWS -- The jury has reached a verdict in the sentencing phase of the Lee Boyd Malvo trial: An announcement of whether the jury will recommend the death penalty is expected sometime in the next twenty minutes.
Posted at 15:42 by Howard Bashman



"Court: AKC Clipped Dog-Tail Standard OK." The Associated Press provides this report. You can access today's ruling by the New York State Court of Appeals -- that State's highest court -- at this link.
Posted at 14:37 by Howard Bashman



"Pot laws don't violate charter: Canada's top court." CBC News reports here that "Canada's laws making the possession of small amounts of marijuana illegal do not violate the Charter of Rights and Freedoms, Canada's top court has ruled." And you can access today's ruling of the Supreme Court of Canada at this link. (Thanks much to a Canada-based reader for emailing this news and these links.)
Posted at 14:30 by Howard Bashman



Allstate must pay accidental death benefit to widow whose husband died from high altitude edema after reaching the summit of Mt. Kilimanjaro: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued this opinion.
Posted at 14:11 by Howard Bashman



Seventh Circuit creates circuit split over whether a certain federal sentencing enhancement can apply in underage Internet sex sting involving a pretend minor: Today a divided three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued a majority opinion that begins:
ROVNER, Circuit Judge. The Internet has opened the doors for many to transact business and personal affairs with almost complete anonymity. For fifty-year-old John Mitchell, it allowed him to initiate a relationship with fourteen-year-old Dena Hugh. After two weeks of communicating with Dena about a variety of topics, but mostly about sex, he arranged to drive from Indiana to Illinois to meet her at a hotel near her home for the purpose of engaging in sexual activity. But the anonymity of the Internet works in both directions, and unfortunately for Mitchell, "Dena" was actually an undercover Cook County Sheriff's Detective posing as a fourteen-year-old girl. Mitchell was arrested at the Illinois hotel and pled guilty to traveling in interstate commerce with the intent to engage in a sexual act with an undercover agent whom he believed to be a fourteen-year-old girl. During sentencing the district court increased his offense level by two based on the United States Sentencing Commission Guidelines Manual (U.S.S.G.) § 2A3.2(b)(2)(B) (2001) which provides for a two-level enhancement where the defendant unduly influenced a minor under the age of sixteen to engage in prohibited sexual conduct. Mitchell argues that this enhancement cannot apply when the victim is an imaginary teenager and where no sexual conduct has occurred. Because we agree that the plain language of the sentencing guideline cannot apply in the case of an attempt where the victim is an undercover police officer, we reverse and remand for re-sentencing.
Circuit Judge Richard A. Posner joined in the majority opinion. Circuit Judge Frank H. Easterbrook dissented. You can access the entire very interesting decision at this link.
Posted at 13:33 by Howard Bashman



Only federal judge to rule that the Religious Land Use and Institutionalized Persons Act of 2000 is unconstitutional in the land use context has certified his decision for interlocutory appeal: Because the judge serves on the U.S. District Court for the Central District of California, the matter now proceeds to the U.S. Court of Appeals for the Ninth Circuit, which must first decide whether to allow this interlocutory appeal to occur. You can access the trial court's ruling on the merits at this link. The Becket Fund for Religious Liberty yesterday issued this press release. And you can learn more about the case here.
Posted at 13:08 by Howard Bashman



The U.S. Supreme Court amicus brief of the Knights of Columbus in the Pledge of Allegiance case can be viewed online: It is available here.
Posted at 13:00 by Howard Bashman



Don't dis them: An east coast-based federal appellate judge emails, "'Irregardless' must have been a typo. The judges obviously meant 'disirregardless.'" A Google search confirms that disirregardless is trying to enter the lexicon.
Posted at 12:54 by Howard Bashman



The Associated Press is reporting: An article headlined "Man Gets Death in Mass. Carjack Killings" reports that "Gary Sampson, a drifter who confessed to carjacking and killing two Massachusetts men during a weeklong crime spree, was sentenced to death Tuesday by a federal jury." According to the article, the death penalty was last carried out in Massachusetts in 1947.

And in other news, "Court: Companies Can Offer Phone Deals." You can access today's ruling by the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 11:55 by Howard Bashman



In news from the Kerkorian-DaimlerChrysler AG case pending in federal court in Delaware: The Detroit Free Press today contains an article headlined "Former CFO denies he knew fate of his notes; Copy service mixup blamed." And The Detroit News today contains an article headlined "Notes reveal Eaton voiced merger worries; Deal 'almost a takeover,' then-executive said in 1998, according to unsealed DaimlerChrysler papers."
Posted at 10:24 by Howard Bashman



Results so far of my unofficial poll on new proposed amendments to Third Circuit's local rules -- seven opposed to line numbering, zero in favor: Late in the day yesterday, I noted here that the U.S. Court of Appeals for the Third Circuit had earlier in the day posted online proposed revisions to its local rules.

My write-up sought reader input on whether other federal appellate courts required that advocates file briefs that contained line numbering and whether I am alone in my disdain for line numbering. So far, none of the seven readers who responded to my post has cited to another federal appellate court that requires line numbering in appellate briefs. But all seven readers agree with me that line numbering is not a beneficial addition.

Here's a sampling of reader commentary. A reader from West Virginia writes:
Neither the Fourth Circuit nor the WV Supreme Court of Appeals requires line-numbering (and no, you are not alone, I think it's just plain unhelpful). Although it's been a year or so since I've had to file a brief in the Sixth Circuit, the last brief I filed did not include line numbers.
An attorney who practices in Kansas City, Missouri emails:
No such rule in the 8th or 10th Circuits. I agree with you--line numbering is too distracting.
An attorney who works on the staff of the Attorney General of Alaska emails:
Here, here. Nay to line numbering, aye to aesthetics, which then leads to the seemingly interminable debate on footnotes. (I vote no.)
A very experienced appellate attorney practicing in Philadelphia emails:
(1) I agree with you on both points. I favor electronic filing of briefs, but I see no good reason for line numbering. Where do they think we practice, Cahleefohkneeah, the land of "pleading paper"? If I need to refer to an opponent's brief (or my own opening brief, in a reply brief) by particular line number, I have not found it too difficult to count. The number is unlikely to be higher than 26, after all. My counting does become unreliable for numbers higher than 29, but you can't get that many lines onto a page. (2) Do you find it ironic that comments on these proposed rules are not invited for submission electronically or by e-mail, but only by regular mail?
A lawyer who handles appeals in California emails:
FRAP 32(e) states, "Local Variation. Every court of appeals must accept documents that comply with the form requirements of this rule. By local rule or order in a particular case a court of appeals may accept documents that do not meet all of the form requirements of this rule." Under 32(e) and because FRAP 32 doesn't require line-numbering, doesn't the 3d Circuit have to accept a brief without line-numbering, even if the 3d Circuit adopts the proposed local rule?

In practice, 9th Circuit briefs (and opinions) are not line-numbered. But I don't think the 9th Cir. local rules say anything about line-numbering and I doubt the court would reject a brief which has line-numbering.

The California Rules of Court expressly bar line-numbering for appellate briefs filed in the Cal. Ct. of Appeal and the Cal. Supreme Court: "The lines of text must be unnumbered ...." Cal.R.Ct. 14(b)(5).

If you're taking a survey of appellate practitioners, I'm with you on this one. Line-numbering is visually distracting and provides only "marginal" help in referencing text.
An attorney based in Boston emails:
No line numbering in the First Circuit.

But this raises another issue (and I'll definitely remain anonymous on this one): the 1st Circuit requires that the electronic version that is filed must be in WordPerfect. Although I am actually personally fond of WordPerfect, since nobody uses it, lawyers must convert filed from Word to WordPerfect at the last minute, generating many formatting and similar glitches on the eve of filing. Do other courts retain this adherence to the word processing program that lost the battle?
Thanks to all who have emailed. By the way, the Third Circuit's press release contains instructions on how to submit official comments. Emails to me, I'm afraid, don't count as official comments (although they may be read online here by those who end up reviewing the official comments, and also by many other appellate lawyers and judges who work and practice outside of the Third Circuit).
Posted at 09:30 by Howard Bashman



"Court reinstates suit of roofer hit by golf ball; Man says he was disabled when errant shot hit him in the head": Today's edition of The State contains this article. You can access here yesterday's unanimous ruling by a three-judge panel of the South Carolina Court of Appeals.
Posted at 09:23 by Howard Bashman



"The Law of War in the War on Terror": Kenneth Roth has this essay in the January-February 2004 issue of Foreign Affairs.
Posted at 09:05 by Howard Bashman



"Irregardless," part two: A reader emails to observe that Senior Circuit Judge J. Clifford Wallace wasn't the only judge serving on the U.S. Court of Appeals for the Ninth Circuit to use "irregardless" in a published opinion in recent months. (Details on his use of that "word" yesterday can be found here.) In a majority opinion filed on November 4, 2003, Circuit Judge Richard A. Paez uses the "word" on page 18 of this PDF file.
Posted at 09:00 by Howard Bashman



"ALCU sues Cranston for holiday display; The federal lawsuit seeks to keep decorations with a religious theme off the City Hall lawn." This article (free registration required) appears today in The Providence Journal.
Posted at 07:05 by Howard Bashman



"State disputes lawsuit over ouster": The Montgomery Advertiser reports here today that "Several Montgomery area residents, who want to see ousted state Supreme Court Chief Justice Roy Moore back on the bench, will have to wait as a federal judge decides whether to let the case proceed."
Posted at 07:00 by Howard Bashman



In Tuesday's newspapers: The New York Times reports that "Applicants Rush to Meet Deadline for Sept. 11 Fund." A related article reports that "Suit by Firefighters' Families Cites 9/11 Radio Failures." In news from Virginia, Adam Liptak reports that "Sniper's Youth Is Emphasized in Arguments on Death Penalty." An article reports that "California Leads in Making Employer Pay for Job Deaths." In other news, "Judge Halts Military's Required Anthrax Shots." In news from Delaware, "Lawyers Spar Over Note in Chrysler Case." An article reports that "Justice Officials Face Inquiry Over Testimony in Arms Case." In other news, "Yemeni Cleric Opposes Osama bin Laden, Diplomat Says." In local news, "Brooklyn Jury Rejects Death Penalty in 2 Killings." In news from Maine, "A Federal Case for a Teenager: Family Sees Tie to Ex-President." An article reports that "Lawyer Accuses Housekeeper of Blackmailing Limbaugh." Editorials are entitled "Terrorism and Liberty" and "Occupational Hazards." And an op-ed by Ruth Wedgwood is entitled "The Rule of Law and the War on Terror."

The Washington Post reports that "Malvo Jury Hears Pleas For Justice, Compassion; Death Penalty Deliberations Begin in Sniper Shootings." In other news, "Anthrax Shots Require Consent, Military Told." Dana Milbank's column is entitled "Under Bush, Expanding Secrecy." And letters to the editor appear under the heading "The Realities of Redistricting."
Posted at 06:30 by Howard Bashman



Monday, December 22, 2003
Elsewhere in Monday's newspapers: The Los Angeles Times reports that "Participants' Distrust Exposed in Piracy Battle; The record labels and file-sharing networks continue to be at odds over music software." And in other news, "Activist Going to Court for Answers; Man seeks unsealing of affidavits to learn why FBI had reason to arrest him in SUV vandalism."

USA Today reports that "In sexual assault cases, athletes usually cleared; Conviction rate much lower than other defendants'." A related item is headlined "Cases involving athletes and sexual assault." And in news from Colorado, "Judge weighs releasing accuser's records in Kobe Bryant case; Balance sought in rights of suspect, woman, public."

The Washington Times reports that "Majority in U.S. opposes 'marriage' for homosexuals." An article reports that "Campaign reformers eye FEC rules." Columnist Nat Hentoff has an op-ed entitled "The Supreme Court's double standard." And John R. Lott Jr. has an op-ed entitled "The NRA' s announcement."

Finally, The Boston Globe contains an editorial entitled "Police take notice."
Posted at 23:05 by Howard Bashman



Available online from law.com: In news from Texas, "Mock News Story Produces Accusation of Libel; A satirical item aimed at criticizing officials prompts free-speech debate." In a report on the "Monica" case from the Second Circuit, "Harassment Suit Against Professor Can Go Forward; But panel dismisses same claim against university." In news from the Third Circuit, Shannon P. Duffy reports that "Jury Must Be Quizzed on Police Bias During Voir Dire." An article reports that "New Jersey Domestic Partnership Act Advances; Assembly passes bill, supported by governor, creating quasi-marital status." An article is headlined "Continuing a Trend: Death sentences drop again in 2003." And a related report is headlined "California Death Spiral: Variety of reasons cause tumble in death judgments."

In today's issue of Legal Times (free registration required), Tony Mauro has an article headlined "Supreme Changes: In ways small and large, high court opened up and recognized wider world." Jonathan Groner has articles headlined "Bush's Ruling Class: While Washington got bogged down in nomination politics, some new judges started judging" and "Bench Benched: Congress put new restrictions on sentencing. The judges aren't pleased." And an article is headlined "Drawing the Line: Judges have started shutting down some of the administration's tools against terror."
Posted at 22:55 by Howard Bashman



Bull castration device appeal may follow: The Associated Press reports that "Firm Wins Suit Over Bull Castration Device."
Posted at 22:52 by Howard Bashman



Guess which circuit is home to a judge who disagrees with Chief Justice William H. Rehnquist over whether "irregardless" is a word? The story is told that Chief Justice Rehnquist once said to an advocate at oral argument, "I feel bound to inform you there is no word irregardless in the English language. The word is regardless." Today, Senior Ninth Circuit Judge J. Clifford Wallace, in his dissenting opinion on page 23 of this PDF document, seems to disagree. Thanks to a reader for drawing this to my attention.
Posted at 20:07 by Howard Bashman



Elk Grove Unified School District sponsors "Pledge of Allegiance Essay Contest": The Elk Grove Unified School District is the petitioner in the case now pending before the U.S. Supreme Court that seeks to overturn the Ninth Circuit's decision prohibiting inclusion of the words "under God" in the Pledge of Allegiance when recited in public school. I'm still looking forward to seeing a copy of the school district's opening brief on the merits, which was filed on Friday. In the meantime, however, I was amused to stumble across this announcement that the school district has sponsored a "Pledge of Allegiance" essay contest and -- get this -- the two winners will be flown to Washington, DC to watch the oral argument in the Supreme Court. Moreover, one of the two winners will have won by arguing that the school district's position in the case is full of baloney (or, for traditionalists and foodists, bologna).
Posted at 19:35 by Howard Bashman



I'm for electronic filing but against line numbering: Today the U.S. Court of Appeals for the Third Circuit posted to its Web site two proposed amendments to that court's local rules.

The first proposed amendment will require that briefs be filed electronically in addition to in print on paper, and the electronic version will be the official version of the brief. I favor electronic filing, because it will make it easy for the Third Circuit to allow online access to briefs the way that both the Seventh and Eighth Circuit now do. (This isn't to say that the Third Circuit is on the verge of doing so, but at least it will soon have the ability to do so.)

The second proposed amendment will require that both the electronic version and the printed version of an appellate brief include line numbering throughout the body of the brief. Perhaps I'm alone in this view, but line numbering is one of my least favorite practices in the law. (With apologies to the Second Circuit, a court whose published opinions almost always contain line numbering.) The practice of line numbering makes a document less aesthetically pleasing, and the huge distraction it supplies far outweighs the minor benefit of having to count lines oneself. Take this example of a Second Circuit opinion issued today (and be sure to see what happens in the case of multiple footnotes on page 17). Perhaps I'm gullible, but this typography guide from the Seventh Circuit has convinced me that appellate briefs should be pleasing to the eye. Line numbering, I'm afraid, detracts from that goal. And I can't believe that a huge time savings will be achieved if practitioners could more easily cite to a specific line or lines of a brief as opposed to an entire page.

I'd be interested to hear from lawyers who practice in other circuits whether any other federal appellate courts require the line numbering of briefs. Although it's been a while since I've filed a brief in the Second Circuit, my recollection is that not even that court requires line numbering in appellate briefs. (The super-large docket number required on Second Circuit briefs is an issue for another time.)
Posted at 17:01 by Howard Bashman



Access online the federal government's opening brief on the merits in the Pledge of Allegiance case pending before the U.S. Supreme Court: The opening brief that the Solicitor General's Office filed on Friday can now be accessed here. Thanks much to the reader who so kindly forwarded this brief to me.
Posted at 15:02 by Howard Bashman



The Associated Press is reporting: An article reports that "Judge Halts Forced Military Anthrax Shots." You can access here today's decision by District Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia.

And in other news, "Malvo Jury Begins Weighing Death Penalty" and "Suspects Plead Innocent to Terror Funding."
Posted at 14:03 by Howard Bashman



Barbie and Beanie Babies (just in time for the holidays): Today a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion by Circuit Judge Richard R. Clifton that begins, "Barbie, the ubiquitous doll produced by Mattel, has been a regular visitor to our court." Today's decision reverses the dismissal of a lawsuit involving Barbie that Mattel filed, perhaps ensuring additional visits from Barbie to the Ninth Circuit in the near future.

Seventh Circuit Judge Richard A. Posner -- the December 2003 "20 questions for the appellate judge" interviewee -- mentioned in his answer to question 10 his "absurdly frequent beanie-baby opinions." Today the Seventh Circuit issued Judge Posner's most recent Beanie Baby opinion, which addresses (among other things) whether the term "Beanies" has become generic.
Posted at 13:31 by Howard Bashman



"The country appears evenly split on the use of the filibuster to stop the progress of President George W. Bush's judicial nominations." United Press International published this article on Friday.
Posted at 13:28 by Howard Bashman



En banc Third Circuit upholds streamlined appellate review procedures applicable before the Board of Immigration Appeals: The vote on that issue was 9-4. On the other issue before the court, the petitioner prevailed (by a vote of seven for, three against, and three stating no position), on his claim that neither the Immigration Judge nor the BIA provided sufficient reasons to reject his testimony as incredible. Today's very interesting opinion can be accessed here. No three-judge panel opinion had previously issued in this case; rather, the case went en banc less than two months after it had been argued before a three-judge panel. A look at how each of the judges on the original panel voted in today's decision perhaps explains why en banc review was needed.

Update: On December 30, 2003, the Third Circuit issued an order that more specifically details how several judges voted in this en banc decision. As a result of this order, the voting breakdown that I provided in my original post is rendered incorrect.
Posted at 12:25 by Howard Bashman



My pledge to link to the merits briefs filed in the U.S. Supreme Court in the Pledge of Allegiance case: Last Friday was the due date for parties opposed to the Ninth Circuit's ruling in the Pledge of Allegiance case to file their opening briefs on the merits. Although the federal government's brief received some press coverage on Friday night, as of this moment the brief hasn't been made available for download or viewing via the Solicitor General's Web site. If anyone wishes to forward via email links to where the merits briefs have been posted online or the briefs themselves in PDF format, please feel free to do so. (Those wishing to forward one or more briefs should first email to request my alternate email address, as large attachments sent to this blog's email account will likely be bounced-back to the sender.)
Posted at 12:09 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Defense Rests in Sniper Sentencing Phase"; "3 Counts Dropped Vs. Guantanamo Worker"; "Ark. Inmates Get Fruit, $5 for Christmas"; and "Condit Sues Over Chandra Levy Articles."
Posted at 11:40 by Howard Bashman



"Your Cellphone is a Homing Device: Don't want the government to know where you are? Throw away your cell, stop taking the subway, and pay the toll in cash." Apropos of an article from Sunday's issue of The New York Times headlined "Lost? Hiding? Your Cellphone Is Keeping Tabs," a reader emails to draw my attention to this very interesting article by Brendan I. Koerner that appeared in the July-August 2003 issue of Legal Affairs.
Posted at 10:41 by Howard Bashman



"Pot Luck: A victory for federalism." On Friday, Reason posted online this essay from Jacob Sullum.
Posted at 10:24 by Howard Bashman



"New views on death penalty: Some murder victims' kin reject capital punishment; others endorse the sanction." This article appears today in The Richmond Times-Dispatch.
Posted at 10:20 by Howard Bashman



"Judges reconsider teasing case; Partial victory for Federal Way child": The Seattle Post-Intelligencer today provides this news from the U.S. Court of Appeals for the Ninth Circuit.
Posted at 10:12 by Howard Bashman



"Should The Supreme Court Clean Up Its Own Mess?" Stuart Taylor Jr. has this essay today at National Journal.
Posted at 10:10 by Howard Bashman



"New era beckons UR law school; T.C. Williams seeks to gain recognition as one of the best": This article appears today in The Richmond Times-Dispatch.
Posted at 07:02 by Howard Bashman



"Dad fights polygamy gag order in court": The Salt Lake Tribune provides this report today.
Posted at 07:01 by Howard Bashman



"Maleng under fire over death penalty": Today's issue of The Seattle Times contains this report.
Posted at 07:00 by Howard Bashman



"Man will ask court to let him procreate; Ohio Supreme Court agrees to hear case of ban on siring children": This article appears today in The Akron Beacon Journal.
Posted at 06:59 by Howard Bashman



In Monday's newspapers: The New York Times reports that "Both Sides Like Chances in I.B.M. Worker Safety Practices Trial." An article reports that "U.S. Rarely Seeks Charges for Deaths in Workplace." In other news, "New Snowmobile Rules Roil Yellowstone." An article reports that "For More People in 20's and 30's, Home Is Where the Parents Are." And in local news, "Off on Yom Kippur? It's Probably Time to Work a Holiday."

The Washington Post reports that "Eleventh Hour Approaches To Apply for 9/11 Fund." In other news, "Calif. Immigrant Initiative Revived; Ballot Proposal Would Bar State Services to Undocumented." An article reports that "Out-of-State Sales Of Va. Wines Awash In Legal Confusion." In local news, "Indignation but Few Indictments; Md.'s U.S. Attorney Challenged by Limited Resources, Competing Agendas." And an editorial is entitled "Trust in Voting Machines."

The Christian Science Monitor reports that "Kobe Bryant judge is soft-spoken but stern; Colleagues say Terry Ruckriegle won't let a media frenzy get in the way of a basketball star's trial." And an article is headlined "It's 2 a.m. Do you know where your workers are?"
Posted at 06:30 by Howard Bashman



Sunday, December 21, 2003
Elsewhere in Sunday's newspapers: The Los Angeles Times contains an article headlined "Side Job Was Unusual for Her Small Town -- Too Unusual; She's a suburban mom in Texas who decided to sell adult toys for extra income. She wound up charged with promoting 'obscene devices.'" Henry Weinstein reports that "Death Sentences Dip Again." An article is headlined "A Flawed Terrorist Yardstick: The Justice Dept. tally of more than 280 suspects detained for prosecution after Sept. 11 is inflated with dismissed and unrelated cases." Articles from The Associated Press are headlined "Card Counters Say Casinos Stack the Deck to Exclude Them; Gambling houses lump them with cheats, even though counting is legal. It betters a player's odds -- and worsens those of the management" and "Military Declares War on Payday Lenders; The high-interest loans hurt troop morale and combat readiness, officials say. Some see a need for financial counseling." In local news, "New Trial Ordered for Man Convicted in Killing." An article reports that "A Pacifist by Any Other Name Wouldn't Stand Out on Ballot." The second article in the six-part series "Butterfly on a Bullet" is headlined "Curious Outsiders Get the Jump on NASA; The shuttle may have been America's pride. But it was also part of the aging infrastructure." An article is headlined "Where Political Influence Is Only a Keyboard Away: More than ever, the Internet gives people a connection -- and a voice -- in campaigns." And an editorial is entitled "The Price of Not Telling."

The Washington Times contains a report from Guantanamo Bay, Cuba headlined "Muslim among Muslims." And in other news, "Texas 'Dr. Death' retires after 167 capital case trials."
Posted at 23:23 by Howard Bashman



"December 10: A Worrisome Day for the Freedom of Speech; McCain-Feingold's champions have long described it as only a modest first step." Stuart Taylor Jr. had this essay last week in National Journal.
Posted at 23:08 by Howard Bashman



"3-way rights fight tangles Bryant case: Demands of defendant, accuser, media clash." The Denver Post today contains this report.
Posted at 23:07 by Howard Bashman



"Push for same-sex marriage heats up; Recent rulings on gay rights spur effort to amend Constitution to limit marriage to 'the union of a man and a woman'": This article appears today in The Austin American-Statesman.
Posted at 23:05 by Howard Bashman



"Liberty in the balance: Patriot Act's broad brush; Aimed at terrorists, the landmark legislation affects average citizens." Today's issue of The Sacramento Bee contains this report.
Posted at 23:04 by Howard Bashman



"A twisted children's crusade? The snipers' trail of death begins with two troubled lives a generation apart." This article appears today in The Richmond Times-Dispatch.
Posted at 23:03 by Howard Bashman



"Witnesses in Oly case lambaste prosecutors": The Salt Lake Tribune today contains an article that begins, "Witnesses say prosecutors and FBI agents bullied them, twisted their words and threatened to indict them when they disagreed with the government's take in the Olympic bribery case."
Posted at 22:55 by Howard Bashman



"A Nation Divided: Seminole rift more than a black-and-white issue." Today's edition of Newsday contains this report.
Posted at 22:44 by Howard Bashman



"Court to weigh parental rights; Estranged lesbian partners in S.F. case both biologically related to daughters": This article appears today in The San Jose Mercury News.
Posted at 22:33 by Howard Bashman



"Students have every right to recite the Pledge": Greg Abbott, the Attorney General of Texas, has this op-ed in today's issue of The Dallas Morning News.
Posted at 22:18 by Howard Bashman



"Supreme Court shows danger of idle hands": Columnist Steve Chapman has this op-ed today in The Chicago Tribune.
Posted at 13:40 by Howard Bashman



In Sunday's newspapers: The Washington Post reports that "Luna's Three-State Car Trip A Mystery to Investigators; Amateurs Spin Theories About Killing of Md. Prosecutor." In news from Virginia, "Emotions Take Over In Wake Of Verdict; Grief on Display In Push for Death." The "Cash Flow" column reports "No Gay Marriage Benefits at the Federal Level." In other news, "What a Family Secret Begat: Essie, Strom and Me; For One Reporter, 1981 Tip Finally Yields the Big Story." The "Career Track" column is headlined "Prepare to Do Your Duty." An editorial is entitled "Fairness for Detainees." And Cass R. Sunstein has an op-ed entitled "In Court v. Congress, Justices Concede One."

In The New York Times, Adam Liptak reports that "Court Leaves the Door Open For Safety System Wiretaps." In other news, "You Say 'Takeover.' I Say 'Merger of Equals.'" An article reports that "A Deficit of $100 Million Is Confronting the N.R.A." In local news, "Absent Ashcroft Is a Presence at Murder Trial." In business news, "Next for the Big Board: To Sue or Not to Sue?" The first in a three-part series on workplace deaths is headlined "A Trench Caves In; a Young Worker Is Dead. Is It a Crime?" In business news, "Making Malpractice Harder to Prove." Jeffrey Rosen has a Week in Review essay entitled "Pursuing Justice: Perils of the Past." And Mark Essig has an op-ed entitled "How Poisoners Succeed in a 'C.S.I.' Nation."
Posted at 11:45 by Howard Bashman



"Jefferson Found Guilty in Mock Trial": The Associated Press provides this report. U.S. Supreme Court Justice Antonin Scalia was one of judges who participated in the mock trial.
Posted at 11:15 by Howard Bashman



Saturday, December 20, 2003
Elsewhere in Saturday's newspapers: The Los Angeles Times reports that "Record Labels Lose Court Case on Privacy" and that "Refund Unlikely for Sued File Sharers." In news from Colorado, "Judge Says He'll 'Make the Law' on Key Motions; Ruckriegle continues decision on medical records of accuser. D.A. lied about T-shirts." Relatedly, columnist J.A. Adande has an essay entitled "For Bryant, Reality Now Is a Surreal Proposition." An article reports that "Court Bows Out of Fight Over Health Insurance Law." In other news, "Backers of Prop. 187 Push for New Initiative; Proposed measure to deny services to illegal immigrants raises fears of divisive racial politics." An article reports that "Federal Judge OKs a Pay Day for Panhandlers in Chicago; Resolving a class-action suit over ticketing and arresting beggars will cost the city $474,000." In other news, "Hearing Concludes for Chief of POW Camp; Iraqi prisoners didn't have to endure worse treatment than Marine recruits, say lawyers for an officer accused of brutality." In local news, "Removal of Hanukkah Banners Protested; A Newbury Park homeowners' board says the consequences are 'unintended.'" The first article in a six-part series entitled "Butterfly on a Bullet" is headlined "Decoding Columbia: A detective story. In an inquest fraught with questions of guilt and shame, scientists unravel the mystery of a shuttle's demise." And today's editorial cartoon by Michael Ramirez is captioned "If the 9th Circuit court had its way..."

The Washington Times reports that "High court urged to put God back in Pledge." In other news, "Court protects Internet servers." An article reports that "Relatives confront Malvo in court." And an article is headlined "Calif. judge allows gay 'marriage' law."

The Boston Globe reports that "Record industry loses round." An article reports that "Campaign finance changes spur new kind of attack ads." In local news, "Jury caps fees owed tobacco law firms; Attorney general cites a victory." In other local news, "Sampson jury hears appeal to its reason." And an editorial is entitled "Principles over power."
Posted at 14:02 by Howard Bashman



From Sunday's edition of The New York Times: Tomorrow's newspaper will include articles headlined "Strong Support Is Found for Ban on Gay Marriage" and "Lost? Hiding? Your Cellphone Is Keeping Tabs."
Posted at 13:55 by Howard Bashman



From this morning's broadcast of NPR's "Weekend Edition - Saturday": "The Man Behind the Law in the Padilla Case" -- "NPR's Scott Simon talks with retired federal judge and former congressman Abner Mikva. Mr. Mikva was behind the 1971 law stipulating that 'no citizen shall be imprisoned... by the United States except pursuant to an act of Congress.' That law was cited this week in a federal court ruling on the case of accused terrorist Jose Padilla." Also, you can hear a segment entitled "New Emphasis on Redistricting Makes for Safe House," featuring an interview with Jeffrey Toobin. (Both segments require Real Player.)
Posted at 13:50 by Howard Bashman



"Ex-felons seeking voting rights get trial; A federal appellate court grants more than 600,000 former felons in Florida a federal trial to challenge the state's ban on the restoration of their voting rights." This article appears today in The Miami Herald. And The South Florida Sun-Sentinel reports that "Court OKs voting rights challenge." My earlier coverage of this ruling can be accessed here.
Posted at 13:44 by Howard Bashman



Law Professors Eugene Volokh and David Cole debate this week's federal appellate court rulings limiting Presidential powers in the war on terror: And David G. Savage, who covers the U.S. Supreme Court for The Los Angeles Times, also makes an appearance. The debate occurred on the program "To the Point," on Public Radio International. To listen, click here (Real Player required) -- this segment begins at 7 minutes and 40 seconds into the program and lasts almost half an hour. (Thanks much to the reader who drew this to my attention.)
Posted at 10:50 by Howard Bashman



In Saturday's newspapers: The New York Times reports that "Court Limits Efforts to Unmask Music Swappers." From Virginia, Adam Liptak reports that "Day for Tears as Survivors Talk of Pain Sniper Caused." An article reports that "Special Interests Unfazed by New Campaign Limits." In business news, "Hartford to Pay $1.5 Billion to Settle Asbestos Claims"; "Final Pact Approved in Long-Running Debit Card Litigation"; and "Deadline Set in Asbestos-Related Case." An article reports that "Army Reprimands a Romeo, but Not Everyone Is Happy." In local news, "More Than Mere Partners." And a letter to the editor appears under the heading "A U.S. Citizen, Denied His Rights."

The Washington Post reports that "Recording Industry Curbed on Music Suits." In news from Virginia, "Emotions Run High In Malvo Courtroom; Suffering Described In Penalty Phase." In related coverage, "Malvo's Mother Seeks Mercy; James Blames 'Bloodthirsty' Muhammad for Influencing Son." In local news, "Rules Set Hinckley Itineraries; Judge Strictly Limits Unsupervised Trips." An article reports that "Audio of Attorney-Detainee Interviews Called Illegal." In other news, "Justice Dept. Clears Texas Redistricting; Democrats' Lawsuit Is Still Pending." In news from Colorado, "Bryant Court Looks at Privacy; Attempt to Balance All Parties' Rights Could Set Precedent." And an article reports that "Ashcroft Not Queried On Campaign Funds; Critics See Weakness in Election Panel."
Posted at 10:22 by Howard Bashman



An update on the legal battle over Texas redistricting: The Houston Chronicle today reports that "Ashcroft OKs remapping plan; Partisan politics, foes say." You can view the U.S. Department of Justice's letter, dated yesterday, at this link.

In other coverage, David Pasztor of The Austin American-Statesman reports that "Justice Department OKs new Texas congressional districts; Redrawn maps don't violate minority voting rights, the agency says." A related editorial is entitled "Texans now must look to courts to end sorry redistricting mess." The Dallas Morning News reports that "Agency backs remap; Court could still reject GOP plan approved by Justice Department" and "Panel: Mid-decade redistricting OK under state law." The Star-Telegram of Fort Worth reports that "Redistricting map gets OK" and that "Frost, Stenholm still expect court to overturn GOP redistricting plan." And The San Antonio Express-News reports that "Redistricting is close to final OK."
Posted at 09:55 by Howard Bashman



"Pledge is more about politics than religion": U.S. Senator John Cornyn (R-TX) has this op-ed today in The Austin American-Statesman.
Posted at 09:44 by Howard Bashman



Friday, December 19, 2003
Elsewhere in Friday's newspapers: The Los Angeles Times reports that "Malvo Found Guilty of Murder in Sniper Spree; Jury rejects the defense's insanity claim and convicts the 18-year-old on two capital counts." In news from Seattle, "Green River Killer Given Life Sentence; Gary Leon Ridgway tearfully apologizes for murdering 48 women. The judge and families of the victims lash out at the 'emissary of death.'" An article reports that "Jackson Formally Accused of Molestation." In business news, "RealNetworks Sues Microsoft; The software giant is accused of illegally bundling its Media Player with Windows in the $1-billion digital media antitrust suit." In news from Colorado, "Hearing to Center on Medical Records; Attorneys for Bryant trying to establish that accuser continually seeks attention"; "The Burden Is on Him; Ruckriegle took on the challenging, high-profile case because, friends say, he believes the local courts' reputation depends on it"; and "Uncertainty Surrounds Bryant." An article reports that "Charge That Chief of POW Camp Brutalized Iraqis May Be Dropped." In local news, "Prosecutor Portrayed Slaying 2 Ways, Judge Says" and "D.A. Wins Appellate Fight to Try 4 Convicted Men; The ruling will allow the murder prosecution of those who were found guilty of lesser federal counts in double slaying." And an editorial is entitled "Look to Law, Not Leaders."

The Washington Times reports that "Jury convicts Malvo of capital murder." In other news, "West would make 'sacrifice' again." An article reports that "Nativity scenes cause uproar." And an editorial is entitled "Hinckley on the loose."

USA Today reports that "Malvo guilty of murder in sniper spree; Penalty phase starts today." In other news, "Jackson charged with molestation; Faces 7 counts of lewd acts on boy" and "Jackson case like O.J.'s on global scale; Trial would rivet the world." An article reports that "9/11 families filing claims as deadline nears." An editorial is entitled "U.S. strikes delicate balance in compensating 9/11 victims," while Beverly Eckert has a related op-ed entitled "'Silence cannot be bought.'"

The Boston Globe reports here that "2 Yanks, 1 Red Sox employee charged; Clerk-magistrate says case vs. players 'weak.'" And in other news, "Sampson jury hears pleas for life, death."
Posted at 23:40 by Howard Bashman



"Chick to Push for Reform of City's Ethics Laws": The headline writers love it when this woman does stuff, as this article from today's edition of The Los Angeles Times demonstrates.
Posted at 23:30 by Howard Bashman



"For the Love of Legos: Why would a successful corporate lawyer abandon his career to earn $13 an hour playing with plastic blocks? Nathan Sawaya will be only too happy to tell you." This article appeared in yesterday's issue of Newsday. And you can see more of this lawyer's LEGO artwork here.
Posted at 23:10 by Howard Bashman



In case you missed it: While catching-up from my recent business trip to the tropics, I neglected to link to the following two articles. The Seattle Post-Intelligencer one week ago contained an article headlined "Judge talks publicly for first time about her DUI arrest."

And The San Francisco Chronicle on December 8th contained an article headlined "Battle royal over wine shipped interstate; Winemakers want direct Internet sales; distributors say no." A related graphic appears here.
Posted at 23:06 by Howard Bashman



Access online the amicus brief that Jay Alan Sekulow and The American Center for Law and Justice filed in the U.S. Supreme Court's Pledge of Allegiance case: The brief, filed today, can be viewed here. And you can also access a related press release.
Posted at 23:00 by Howard Bashman



"Trial ordered in Florida felon voting lawsuit": The Associated Press provides this report.
Posted at 21:14 by Howard Bashman



The Associated Press is reporting: You can now access online articles headlined "Bush Asks High Court to OK Pledge Recital" and "Livestock Suit Vs. Government Resurrected."
Posted at 19:35 by Howard Bashman



From tonight's broadcast of National Public Radio's "All Things Considered": Tonight's broadcast contained the following reports (Real Player required): "Court Rules Against RIAA in File-Trading Dispute"; "Malvo Jurors Hear from Sniper Victims' Families"; "Testimony in Malvo Sentencing Phase Questioned"; and "Deadline Nears for Sept. 11 Families' Fund."
Posted at 19:22 by Howard Bashman



Divided three-judge Eleventh Circuit panel reinstates lawsuit by ex-felons in Florida challenging the constitutionality of their voting disenfranchisement: Thanks to this ruling issued today, at some point in the future there could be even more votes that might or might not get counted in Florida.
Posted at 16:46 by Howard Bashman



"RealNetworks sues Microsoft; Legal action alleges attempt to dominate digital media market": The Seattle Post-Intelligencer today offers this report. The Seattle Times reports that "RealNetworks files $1 billion antitrust suit against Microsoft." The San Jose Mercury News reports that "Microsoft rival files antitrust lawsuit; RealNetworks aims to avoid Netscape's fate." And The San Francisco Chronicle reports that "RealNetworks sues Microsoft on antitrust; Music player firm says software giant hasn't made good on pact." The complaint filed yesterday in the San Jose division of the U.S. District Court for the Northern District of California can be viewed at this link.
Posted at 15:45 by Howard Bashman



In this upcoming Sunday's issue of The New York Times Magazine: You will find articles headlined "The Loophole Artist" and "Dumpster-Diving for Your Identity." And the "Lives" feature is entitled "The Trial After the Trial."
Posted at 15:30 by Howard Bashman



Overseas news coverage of Texas sex toy prosecution: The Age of Melbourne, Australia reports in its Saturday issue that "Sex aid case sends Texas into a legal lather." The Scotsman reports that "Sex aid saleswoman charged with obscenity." And The Times of London recently had an article headlined "Undercover sting leaves town with bad vibrations," but it is available only to paid subscribers. My previous round-up of domestic press coverage of this case can be viewed here.
Posted at 14:17 by Howard Bashman



"Bush Declares 2nd Circuit Judges 'Enemy Combatants'": The "ScrappleFace" blog offers this post.
Posted at 13:51 by Howard Bashman



"Court schedules hearing on remap; Judges prepare to reply to Justice ruling": This article appears today in The Houston Chronicle.
Posted at 13:45 by Howard Bashman



Additional coverage of yesterday's federal appellate court rulings involving the war on terror: In The Los Angeles Times, David G. Savage reports that "Rulings Dent Detentions of Terror Suspects; One appeals court finds the Bush team can't hold in a military brig a U.S. man seized in Chicago. A second says inmates in Cuba may seek release" and Henry Weinstein reports that "Court Backs Rights for Detainees; The foreigners held at the U.S. naval base in Cuba can legally challenge their confinement, appellate judges rule." The Boston Globe reports that "US court rejects detention policy; Says citizen can't be held indefinitely." The Chicago Tribune contains an article headlined "Courts: Terror cases flawed; Bush can't order citizen held as enemy combatant." The San Francisco Chronicle reports that "Courts affirm rights of terror suspects; Judges reject Bush policies on prisoners in Cuba and U.S." The Knight Ridder Newspapers report that "Bush handed setbacks in 2 terror rulings." The Washington Times reports that "Courts rebuke White House." USA Today offers articles headlined "Court: U.S. can't hold citizen as 'combatant'; Terror strategy challenged" and "Government could see further setbacks after Padilla ruling; Bush administration faces challenges on its policy of open-ended detentions." And The Post and Courier of Charleston, South Carolina -- the town where Jose Padilla is being detained -- reports that "Feds ordered to release or charge bomb suspect."

Finally, last night's edition of NewsHour with Jim Lehrer contained a segment entitled "Terror Suspects." You can read the transcript or hear the audio (Real Player required for audio).
Posted at 13:02 by Howard Bashman



"Emotional 911 Tape Played in Sniper Case": The Associated Press provides this report. The death penalty phase of the Lee Boyd Malvo prosecution began this morning in Chesapeake, Virginia.
Posted at 12:32 by Howard Bashman



Retired California Supreme Court Justice, represented by two highly respected law professors, asks U.S. Supreme Court to vacate Ninth Circuit's Pledge of Allegiance ruling: You can access here the amicus curiae brief that Law Professors Richard A. Epstein and Neal Katyal have filed on behalf of retired California Supreme Court Justice Joseph R. Grodin. The brief argues that the Supreme Court should vacate the Ninth Circuit's ruling and direct the Ninth Circuit to certify to the Supreme Court of California the questions of state law on which Michael A. Newdow's standing depends.

By the way, today is the due date for the opening briefs of the parties that are challenging the Ninth Circuit's ruling in this case (see the U.S. Supreme Court's docket entries here), so stay tuned for further developments.
Posted at 12:10 by Howard Bashman



"Court Rejects Music Industry Subpoenas": The Associated Press provides this coverage. And Reuters has an article headlined "Court: Net Music Subpoenas Not Authorized."
Posted at 11:15 by Howard Bashman



D.C. Circuit orders the quashing of Recording Industry's subpoenas issued to Verizon to discover the name of two large traders of .mp3 files: You can access today's unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 10:33 by Howard Bashman



"Judge ordered to consider dropping case; Billions at stake in suits involving asbestos victims, bankrupt firms and their lenders": The Newark Star-Ledger today contains this report on yesterday's ruling by the U.S. Court of Appeals for the Third Circuit.
Posted at 09:30 by Howard Bashman



In Friday's newspapers: The New York Times reports that "U.S. Courts Reject Detention Policy in 2 Terror Cases." A news analysis is headlined "In Debate on Antiterrorism, the Courts Assert Themselves." An article reports that "Detainees' Abuse Is Detailed." In news from Virginia, Adam Liptak reports that "2nd Sniper Found Guilty in Virginia." In other news, "Doctors' Reports Swayed Hinckley Judge." An article reports that "Jackson Is Formally Charged With Child Molesting." In news from Seattle, "Families Speak as Green River Killer Gets 48 Life Terms." In business news, "RealNetworks Accuses Microsoft of Restricting Competition"; "Vitamin Maker Agrees to Deal on Price Lawsuit"; and "New York and Microsoft File Suits on E-Mail Spam." In news from Boston, "2 Yankees and Worker Are Charged in Fight." In local news, "Group Says at Least $6 Billion More Is Needed to Fix New York Schools." An article is headlined "Mining the Gold in Gay Nuptials." And an editorial is entitled "The Padilla Decision."

The Washington Post reports that "Seized Citizen Is Ordered Released; Bush Overreached Powers, Court Says." In related news, "Detainee to Get Hearing; 9th Circuit Ruling Could Lead to Court Dates for Others at Guantanamo Bay." Charles Lane has a news analysis headlined "War on Terrorism's Legal Tack Is Rejected; Court Challenges Declaration and Detention of U.S. Citizen as Enemy Combatant." An article reports that "Tapes Show Abuse of 9/11 Detainees; Justice Department Examines Videos Prison Officials Said Were Destroyed." In news from Virginia, "Malvo Guilty of Capital Murder; Sniper Trial Jury to Choose Life or Death as Sentence"; "For Relatives, Satisfaction And Relief; Malvo Friends Hope for Life Sentence"; "At the Core of the Case: Should a Life Be Spared?"; and "The Fatherless Son: For Lee Boyd Malvo, a Twisted Version of a Classic Literary Quest." In business news, "RealNetworks Files Antitrust Lawsuit Against Microsoft; Windows-Media Player Bundling Targeted." An article reports that "Prosecution Challenged In Islamic Charity Case; Judge Questions Numerous Allegations." A front page article reports that "Jackson Charged With Molestation; 9 Counts in Abuse Case Center on Young Teenage Boy." In news from Colorado, "Bryant Defense to Target His Accuser; Motions at Hearing to Assert Sexual History, Psychiatric Records Are Admissible." And an editorial is entitled "Mr. Malvo's Fate."

In The Christian Science Monitor, Warren Richey has an article headlined "Court import: Be careful whom you get in a car with; The Supreme Court finds that all occupants of a car can be arrested if officers find unclaimed contraband."

The Wall Street Journal contains an editorial entitled "September 10 Mindset: Two judges decide the U.S. isn't a 'zone of combat.'" And a second editorial is entitled "Don't Call It Christmas: Secularist fanatics try to take 'holy' out of the holidays."
Posted at 06:30 by Howard Bashman



Thursday, December 18, 2003
Elsewhere in Thursday's newspapers: The Los Angeles Times reports that "Judge Grants Hinckley Outings With Parents; Ruling follows experts' advice. Advocates for the would-be assassin's victims are upset." In other news, "Last of the 'Lackawanna Six' Terror Defendants Sentenced." An article reports that "Judge Finds Fisheries Service Failed to Give Orcas Protection; Officials didn't use best available science about Puget Sound killer whales, he rules." And in other news, "Ban on Vehicles at Parks Fought; Snowmobile advocates challenge reinstated restrictions at Grand Teton and Yellowstone."

The Washington Times reports that "Hinckley freed for day trips." An article reports that "Appeals court OKs medicinal pot." In news from Virginia, "Malvo jurors clarify 'malice.'" An article reports that "Ashcroft apologizes for remark." And in other news, "Bush marriage stance not 'clear.'"

USA Today reports that "Hinckley allowed unsupervised trips; Judge says Reagan shooter no danger." And in other news, "Bush's gay-marriage tack risks clash with his base."
Posted at 23:22 by Howard Bashman



FindLaw commentary defames Law Professor Laurence H. Tribe? So he appears to be claiming in an email reprinted here, written in response to this commentary that FindLaw published today. The author of the commentary has issued this response to Professor Tribe's email.
Posted at 22:41 by Howard Bashman



Also available in the January-February 2004 issue of Legal Affairs magazine: In addition to the must-read profile of Ninth Circuit Judge Alex Kozinski, which I first noted here earlier today, the new issue of the magazine also contains several other items of note.

Lincoln Caplan, the magazine's editor and president, has an essay in which he argues against dividing the Ninth Circuit. Richard A. Posner has an essay entitled "Smooth sailing: Democracy doesn't need Deliberation Day. If spending a day talking about the issues were a worthwhile activity, you wouldn't have to pay voters to do it." Judge Posner's essay is a response to an essay by Bruce Ackerman and James Fishkin entitled "Righting the ship of democracy: Presenting Deliberation Day: A radical proposal to help voters make better decisions." And last but not least, Richard W. Garnett has an essay entitled "Let off with a warning: In Miranda cases, maybe the Supreme Court should exercise its own right to remain silent."
Posted at 22:15 by Howard Bashman



Available online at law.com: An article reports that "Circuits Challenge Bush's Anti-Terror Authority; 2nd and 9th Circuits rule against government in handling of U.S., foreign detainees." In news from Georgia, "Day Trader Firms Ruled Not Liable for Rampage." And in news pertaining to the U.S. Court of Appeals for the Second Circuit, "Inflicting Emotional Distress Increases Federal Sentence; Enhancements for bodily injury may include psychological injury."
Posted at 22:13 by Howard Bashman



"Ten Commandments ruled out; Three counties in Kentucky posted biblical message": The Associated Press has this report on this morning's ruling by the U.S. Court of Appeals for the Sixth Circuit. You can access my earlier report on that decision at this link.
Posted at 22:03 by Howard Bashman



"Friends, family pay tribute to slain prosecutor": This article appears today in The Columbia (Md.) Flier.
Posted at 21:55 by Howard Bashman



"Insanity Defense Still Could Help Malvo": The Associated Press provides this report.
Posted at 20:15 by Howard Bashman



Noting a minor inaccuracy in today's Ninth Circuit decision regarding Guantanamo detainees: Today's ruling by a divided three-judge Ninth Circuit panel in Gherebi v. Bush states, on page 4 of the PDF file: "Nor has a single Guantanamo detainee been given the opportunity to consult an attorney, had formal charges filed against him, or been permitted to contest the basis of his detention in any way."

Over the past several days Australian attorney Stephen Kenny was permitted to visit with Guantanamo detainee (and Australian citizen) David Hicks. An article headlined "Hicks not mistreated, says lawyer" reports that "Mr Kenny has returned to New York after being the first defence lawyer given access to any of the 600 detainees at Guantanamo Bay, Cuba." Friday's edition of The Australian contains an article headlined "Hicks advised to plea bargain." Friday's edition of The Herald Sun contains an article headlined "Saddam 'better off' than Hicks." Friday's edition of The Age reports that "Hicks did not kill or injure, says lawyer." Friday's edition of The Sidney Morning Herald contains an article headlined "Hicks dilemma: plead guilty or stay at Guantanamo Bay indefinitely." Today's edition of The Australian contains an article headlined "Hicks charge 'to save Bush face.'" Reuters very early this morning issued an article headlined "Guantanamo a 'Black Hole,' Says 1st Civilian Lawyer to Visit." And BBC News today has a report headlined "'Unequal treatment' at Guantanamo: A lawyer who has visited his client being held at a US base in Guantanamo Bay, Cuba, has told the BBC prisoners there are not being treated equally."

You can access here the transcript of an interview the Australian Broadcasting Corporation conducted with attorney Kenney. And the Australian Broadcasting Corporation offers this very interesting audio report (Real Player required).

By pointing out this minor inaccuracy in today's ruling, I do not intend to be critical of any of the judges on the panel. Obviously the opinion is not written or revised substantially on the day before its issuance. Nevertheless, it will be interesting to see whether this minor point is deemed worthy of correction.
Posted at 19:50 by Howard Bashman



"Courts Set Back Terror War Legal Strategy": David Kravets of The Associated Press has an article that begins, "In twin setbacks for the Bush administration's war on terror, federal appeals courts on opposite coasts ruled Thursday that the U.S. military cannot indefinitely hold prisoners without access to lawyers or the American courts."
Posted at 19:27 by Howard Bashman



From tonight's broadcast of National Public Radio's "All Things Considered": Tonight's broadcast contained the following reports (Real Player required): "Padilla Can't Be Held as Combatant, Court Says" (featuring Nina Totenberg); "The Padilla Ruling and Presidential Powers"; "Malvo Guilty in Sniper Killing"; and "'Green River Killer' Sentenced."
Posted at 19:20 by Howard Bashman



For the U.S. Department of Justice, it was a day to issue press releases addressing unfavorable federal appellate court rulings: You can access a press release on the Second Circuit's ruling in the Padilla case here and a press release on the Ninth Circuit's ruling in the Guantanamo habeas case here.
Posted at 19:02 by Howard Bashman



"Special tribunal suspends justice; Allegations against Diaz called prejudicial": In news from Mississippi, The Clarion-Ledger yesterday contained this article.
Posted at 17:34 by Howard Bashman



"Malvo Guilty of Murder in Sniper Spree": The Associated Press provides this report. From The New York Times, Adam Liptak and Kirk Semple report that "Malvo Convicted of Capital Murder in Sniper Shootings." The Washington Post reports that "Malvo Found Guilty of Capital Murder." And Reuters reports that "Malvo Guilty in DC Sniper Case, May Face Death."
Posted at 17:31 by Howard Bashman



Don't call her "Monica": Today a unanimous two-judge panel of the U.S. Court of Appeals for the Second Circuit reinstated sexual harassment claims against a state university professor who continually referred to a student as "Monica." You can access the opinion at this link.
Posted at 17:00 by Howard Bashman



BREAKING NEWS -- Jury finds Lee Boyd Malvo guilty on all three counts: Presumably now the trial will move on to the death penalty phase, which could start as early as tomorrow. Malvo was convicted on charges of capital murder and terrorism, both of which would allow imposition of the death penalty.
Posted at 16:35 by Howard Bashman



Third Circuit refuses, for now, to order the recusal of U.S. District Judge Alfred M. Wolin in mandamus actions relating to five large asbestos-related bankruptcies pending in Delaware: You can access today's ruling of the U.S. Court of Appeals for the Third Circuit at this link. Instead, the Third Circuit has ordered Judge Wolin to allow the creation of a record and to rule, himself, on the recusal motions before the end of January 2004. The Third Circuit panel has retained jurisdiction to consider any further Third Circuit proceedings that will follow Judge Wolin's ruling on the recusal motions. Today's result accords with the impressions that I took away from the oral argument the Third Circuit held in these matters last Friday.
Posted at 16:24 by Howard Bashman



BREAKING NEWS -- Lee Boyd Malvo jury reaches a verdict: CNN has just reported that the verdict will be announced in open court at 4:45 p.m. eastern time.
Posted at 16:20 by Howard Bashman



"The Big Kozinski": The cover story, by Emily Bazelon, contained in the January-February 2004 issue of Legal Affairs magazine bears the title "The Big Kozinski: If the Ninth Circuit were a circus--and some say it is--Alex Kozinski would be its ringmaster. Presenting the most controversial judge on our most controversial court." You can see the cover image here.
Posted at 16:10 by Howard Bashman



"The Theology of the Blaine Amendments": Law Professor Richard W. Garnett will have an article, which is currently accessible via this link, in a forthcoming issue of the First Amendment Law Review. Thanks to Stuart Buck for the pointer.
Posted at 16:08 by Howard Bashman



Can you hear me now? Apparently the answer was "no" in a portion of Mequon, Wisconsin, causing Verizon Wireless to seek permission to construct an additional cell phone antenna there. Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, in an opinion by Circuit Judge Richard A. Posner, affirmed a federal trial court's order requiring Mequon to issue the permit Verizon is seeking. As usual, the opinion is well worth reading. To give just one example, the opinion states that Mequon's "'slippery slope' argument can't get off the ground."
Posted at 15:35 by Howard Bashman



"Court: Terror Suspects Must Get Lawyers": David Kravets of The Associated Press has this report on today's quite newsworthy Ninth Circuit ruling, which I first noted here.
Posted at 15:07 by Howard Bashman



OPEC cannot be sued in the United States for alleged antitrust violations unless OPEC consents to receive service of process: That would seem to be a possible consequence of this decision that a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit issued today.
Posted at 15:05 by Howard Bashman



Not standing by: Today a divided three-judge Eighth Circuit panel decided an interesting appeal presenting the question whether a defendant in a criminal case who had invoked his right to self-representation was unlawfully deprived of that right when stand-by counsel's response to a question from a potentially key defense witness caused the witness to secure her own lawyer and invoke her Fifth Amendment right to refuse to testify in the defendant's defense. The majority concluded that the defendant's rights were not infringed, but Circuit Judge Morris Sheppard Arnold has a persuasive dissent explaining why he has reached the contrary conclusion. You can access the complete ruling at this link.
Posted at 14:33 by Howard Bashman



EVEN MORE ENEMY COMBATANT BREAKING NEWS -- Divided three-judge Ninth Circuit panel holds that federal district courts have jurisdiction to consider habeas petitions of uncharged foreign detainees held at Guantanamo Naval Base: You can access the ruling, issued just moments ago, at this link. Circuit Judge Stephen Reinhardt wrote the majority opinion, in which Senior District Judge Milton I. Shadur, sitting by designation from the U.S. District Court for the Northern District of Illinois, joined. Circuit Judge Susan P. Graber dissented. In an unpublished order issued today, the panel has stayed the issuance of its mandate pending the U.S. Supreme Court's resolution of a case presenting this very same issue.
Posted at 13:30 by Howard Bashman



"In this case we are called on to determine whether a cow is an uninsured motor vehicle under appellants' insurance policy." So beings an opinion that Ohio's Eleventh District Court of Appeals issued earlier this month. Yesterday's issue of The Plain Dealer reports that "Court concurs: Cow-llision not covered." Talk about your "downed livestock." [Thanks much to the Ohio-based law professor who forwarded a link to this ruling.]
Posted at 12:34 by Howard Bashman



All fifty States have joined in a U.S. Supreme Court amicus brief asking that the Ninth Circuit's Pledge of Allegiance ruling be overturned: People who support the Ninth Circuit's ruling remain entitled to reside in the District of Columbia and the U.S. Territories. The amicus brief can be accessed here.
Posted at 12:22 by Howard Bashman



Some initial news coverage of today's Second Circuit ruling in the enemy combatant case: The Associated Press reports that "Bush Overruled on 'Dirty Bomb' Suspect." Reuters reports that "Appeals Court Says Bush Can't Hold U.S. Citizen." And CNN.com offers a report headlined "Court: President cannot detain U.S. citizen as enemy combatant" (which, frankly, is too sweeping of a characterization of today's ruling). I provide links to today's ruling in the post immediately below.
Posted at 12:01 by Howard Bashman



BREAKING NEWS -- The U.S. Court of Appeals for the Second Circuit holds that "the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat": The ruling comes in the case of accused enemy combatant Jose Padilla. The majority opinion was written jointly by Circuit Judges Rosemary S. Pooler and Barrington D. Parker, Jr. Circuit Judge Richard C. Wesley has dissented in part and would uphold the President's authority to detain Padilla. [Thanks so very much to the readers of "How Appealing" who ensured that I was among the first to report on this very significant ruling.]

Update at 11:25 a.m.: The Second Circuit has now posted online the majority and dissenting opinions.
Posted at 10:50 by Howard Bashman



"Bush Judicial Nominee: Bombing Birds Benefits Birdwatchers." The Web site "Bush Greenwatch" apparently isn't entirely in favor of Fourth Circuit nominee William James Haynes II. The item in question can be accessed here.
Posted at 10:49 by Howard Bashman



More coverage of American Lawyer Media's owner, who just purchased New York magazine: The New York Times today offers an article headlined "Why Did He Buy New York? Hey, Wasserstein Loves Deals." And The New York Post today offers an article headlined "Put the Champagne on ice: Bruce runs a tightwad ship."
Posted at 10:43 by Howard Bashman



Commentary available online from FindLaw: Today Law Professor Marci Hamilton has an essay entitled "The Supreme Court's Recent Landmark Campaign Finance Decision: Acknowledging the Factual Record Of Corruption in Congress." And Chris Geidner, a law student who blogs here and here, has an essay entitled "Why Civil Unions Are Not Enough: The Massachusetts Supreme Court's Ruling Gives Gays and Lesbians the Right to Marry." Yesterday, Law Professor Sherry F. Colb had a essay entitled "Are Strip Searches Special? A New York Appellate Court Says Yes, But the U.S. Supreme Court's Views Remain Unknown."
Posted at 10:22 by Howard Bashman



A lawyer blogs about lawyer blogs: This is a follow-up to my post from last night entitled "Prepare the shark for jumping."
Posted at 10:15 by Howard Bashman



"Damages against bank slashed; Md. appeals court cuts award by $239 million; Software firm alleged fraud": This article appears today in The Baltimore Sun. You can access yesterday's ruling by the Court of Special Appeals of Maryland -- that State's intermediate appellate court -- at this link (119-page PDF document).
Posted at 10:12 by Howard Bashman



"What duty of care, if any, is owed by a 911 emergency dispatcher to the public?" Today at 1 p.m. eastern time, 10 a.m. pacific time, the Supreme Court of California is scheduled to issue a decision resolving this issue.

Update: The court's ruling can be accessed here.
Posted at 10:08 by Howard Bashman



BREAKING NEWS -- Divided three-judge Sixth Circuit panel affirms injunction that prohibits Ten Commandments displays by two counties and a school district in Kentucky: You can access today's ruling at this link. The appeal was argued one year and two weeks ago.

Circuit Judge Eric L. Clay delivered the opinion of the court. Circuit Judge Julia Smith Gibbons wrote a separate opinion concurring in part and concurring in the judgment. Senior Circuit Judge James L. Ryan, who coincidentally was the author of the majority opinion the Sixth Circuit issued yesterday upholding the constitutionality of Ohio's ban on partial birth abortion, dissented.

Back in November 1999, the American Civil Liberties Union issued a press release announcing its initiation of the lawsuits that led to today's ruling. The Courier-Journal of Louisville, Kentucky reported on December 5, 2002 that "Court hears appeal on display of Bible rules; E. Kentucky counties contend judge erred in ordering removals." That newspaper also provided the following earlier coverage of the case: "Judge: Ten Commandments displays must come down" and "ACLU wants counties held in contempt; Fines, removal of Commandments displays sought." And in November 1999, The Associated Press covered the filing of the lawsuits in an article headlined "Ten Commandments draw ACLU lawsuits."
Posted at 09:32 by Howard Bashman



"Appeals Court backs ban on abortion procedure; Suggests exception for health is needed": Lyle Denniston provides this report today in The Boston Globe. The Cincinnati Enquirer reports that "Ban on abortion method upheld; Challenge to Ohio law continues." And The Dayton Daily News reports that "Court allows Ohio late-term abortion ban; Appeals court rejects Judge Rice's ruling."
Posted at 07:00 by Howard Bashman



In Thursday's newspapers: The New York Times reports that "Hussein Enters Post-9/11 Web of U.S. Prisons." Relatedly, an article reports that "Victims of Gas Say Swift Death for Hussein Would Be Too Merciful." In other news, "Man Who Shot Reagan Allowed to Visit Parents Unsupervised." Neil A. Lewis reports that "Lawyer for Taliban Detainee Says His Client Is Depressed." In news from Paris, "Chirac Backs Law to Keep Signs of Faith Out of School." An article reports that "2 Times Reporters to Testify in Scientist's Case Against U.S." In local news, "Competing Images in a Death-Penalty Case." And Joan Jacobs Brumberg has an op-ed entitled "Separating the Killers From the Boys."

The Washington Post reports that "Brief Urges Review of Hamdi Case; Attorney Wants Supreme Court Ruling on Detention Policy." A front page article reports that "Judge Grants Hinckley Unsupervised Outings; Stays at Parents' Home Not Allowed." In other news, "Malvo Jury Begins Deliberating; Panel Asks Judge Several Questions in Va. Sniper Trial." An article reports that "Australian at Guantanamo in 'Legal and Moral Black Hole,' Lawyer Says." In news from Virginia, "10 Years For Man Who Aided Jihad Probe." In other news from Virginia, "Injection Argument Gets Va. Execution Delayed." In news from Maryland, "Mikulski Decries Detention Center Plan; Senator Criticizes Justice Department for Not Consulting Pr. George's Residents." An editorial is entitled "An Injustice Undone." And columnist Robert J. Samuelson has an op-ed entitled "Muzzling Speech," while columnist Richard Cohen has an op-ed entitled "Let Saddam Live."
Posted at 06:30 by Howard Bashman



Wednesday, December 17, 2003
Elsewhere in Wednesday's newspapers: The Boston Globe reports that "SJC solicits briefs on civil unions; Mulls request by Senate for advisory opinion" and that "SJC ruling went too far, Bush says in interview; Remarks on gay unions draw fire from all sides." In other news, "Bush signs anti-spam e-mail bill; Housing law lauded for low-income plan." An article reports that "Tribunal for a Hussein trial criticized." In business news, "Activist assails Walgreens' bid for settlement of pricing suit." In local news, "Group calls for end to judge rotation; Bar association report assails 'circuit riding.'" An article reports that "Foundation lawyers enjoy privileged position," while in related coverage, "Trustees' fees are talk of San Antonio's elite." And in other news, "Suit to target city police race policies; Says hiring quotas violate Constitution."

The Washington Times reports, in news from Virginia, that "Jury deliberating Malvo case" and "Insanity finding would have ripple effect." In other news, "Suspect provides valuable data on al Qaeda's plans." In other news, "Bush signs 1st antispam effort into law." And an op-ed by Walter Williams is entitled "Constitutional sleuthing."

USA Today reports that "Feds explain reason why Padilla can't see lawyer." And in news from Virginia, "Jury debates teen sniper suspect's fate; Defense paints Malvo as 'puppet.'"

The Los Angeles Times reports that "Ashcroft Is Rebuked by U.S. Judge; The attorney general apologizes for twice violating a gag order issued in a high-profile Detroit terrorism trial." In news from Virginia, "Malvo Case Goes to the Jury; A panel weighs the fate of the self-confessed shooter in last year's Washington-area sniper attacks. Teen mounted an insanity defense." An article reports that "Jackson Can Get Fair Trial, Experts Say; Race and celebrity are at issue in mostly white Santa Barbara County." In news relating to natural resources, "Administration Backs Off Clean Water Act" and "Expanded Snowmobile Use in Yellowstone Halted; Judge scraps a Bush administration policy to block a Clinton-era ban on the machines." In local news, "City, Counties Vote to Sue State; Local governments seek to recover $4 billion in revenues lost in the reduction of the car tax." And finally, an article is headlined "Long Sentences for Sex Party in China; Two get life in prison and 12 get up to 15 years for organizing revel for Japanese tourists. Incident may affect ties between the nations."
Posted at 23:22 by Howard Bashman



Prepare the shark for jumping: A well-respected law firm marketing outfit declares that blogs are the hot new thing for legal professionals to use.
Posted at 23:21 by Howard Bashman



Correction: I have corrected my post from earlier today concerning this day's noteworthy Third Circuit decision because I erred in stating that the three-judge panel's ruling was unanimous. Although I checked to see whether any separate opinion accompanied the court's decision and found none, I have since become aware that in the final footnote of the opinion, one of the judges on the panel disclaims the panel's approach and instead states that he would affirm based on the quite different approach that the trial court utilized. This method of refusing to join in an appellate court's rationale is not as easy to detect as other equally convenient, but much more obvious, methods.
Posted at 23:11 by Howard Bashman



Available online at law.com: Shannon P. Duffy reports that "Interest in Adult Child Not Protected by Due Process Clause" and notes that the Third Circuit's opinion in fact wasn't unanimous. In other news, an article is headlined "5th Circuit: Malicious Prosecution Not a Constitutional Violation." And in news from New York, "Unwilling Capital Defendant Poses Problems for Sentencing."
Posted at 22:59 by Howard Bashman



"Law firm sues man for 'squatting' on Web site name": The Star Tribune of Minneapolis contained this report yesterday. According to the newspaper article, the lawsuit alleges that the defendant "has copied Faegre's Internet home page and created a counterfeit Web page using the firm's name which included fictitious articles; photographs purportedly of aborted fetuses; links to abortion-opposition Web pages and defamatory material about the law firm and its employees." A Google search reveals that the site that is the subject of the suit remains accessible; viewer discretion is most strongly advised.
Posted at 22:44 by Howard Bashman



Connecticut jury recommends death penalty for man who killed pregnant woman and caused the death of her fetus: The Associated Press provides this report. This news is worthy of note because it comes in the case that was the subject of my August 2003 appellate column, entitled "Legislature Battles Court Over How Statutes Should Be Construed." You can learn much more about the Supreme Court of Connecticut's rather unusual decision allowing the death penalty in this matter via my earlier blog post accessible here. An article on law.com reported that "Connecticut Supremes Radically Change Statutory Tack; Death penalty case alters rules for legislative interpretation." And The Republican-American of Waterbury, Connecticut had an article at the time headlined "Court clears way to seek suspect's death in slaying." The Hartford Courant has provided in-depth coverage of the trial, and you can access its reports via this link and this link.
Posted at 22:12 by Howard Bashman



Not your typical mother: Today Fifth Circuit Judge Jerry E. Smith issued an opinion on behalf of a unanimous three-judge panel in which he begins the recitation of facts as follows:
The underlying facts have their origin in a scene familiar to many households: A mother asks her son to perform a simple chore, he refuses, and she ends up having to hire one of the kids from the neighborhood to do the job instead. Although ordinarily this would not land anyone in federal prison, it is also not the typical mother who would ask her son to set fire to a motel. Smith did just that. Motivated by a desire to collect on a $325,000 insurance policy, she asked her son, Johnathon Williams, to set fire to a motel she owned. When he refused, Smith turned to Josh Booty, a family friend, and offered to buy him a truck if he would burn down the motel.
You can access the complete opinion at this link.
Posted at 19:57 by Howard Bashman



In Ten Commandments news and commentary from Alabama: The Montgomery Advertiser today reports that "Ex-jurists to hear Moore appeal." The Birmingham News reports today that "Patterson heads Moore appeal panel" and offers an editorial entitled "Moore's court: Will appointed judges satisfy former chief justice?" The Mobile Register today contains an editorial entitled "State courts harmed by Roy Moore's ego." And The Huntsville Times today contains an editorial entitled "Still more Roy Moore."
Posted at 19:42 by Howard Bashman



What may happen next in the case challenging Ohio's ban on partial birth abortion: This morning, as I previously reported here, a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued an opinion (available in HTML and PDF format) that overturned a federal trial court's injunction which had invalidated Ohio's ban on partial birth abortion. The majority concluded that Ohio's ban on partial birth abortion does not offend the U.S. Constitution.

The Sixth Circuit's decision, however, does not become effective immediately. Rather, the earliest it would take effect would be twenty-one days from today, when the Sixth Circuit would issue its mandate if the plaintiffs fail to file a timely petition for panel and / or en banc rehearing. If the plaintiffs do file a timely petition for rehearing, the earliest the Sixth Circuit's mandate would issue would be seven days after the request for rehearing has been denied.

If the plaintiffs decide not to ask for rehearing, or if they ask for rehearing but the request is denied or the result remains the same, the plaintiffs can file a petition for writ of certiorari in the U.S. Supreme Court asking the Court to accept the case for review on the merits. If the plaintiffs decide to file a cert. petition, they likely will ask the Sixth Circuit to stay the issuance of the mandate pending the Supreme Court's action on the case. If the Sixth Circuit agrees to stay its mandate, the trial court's injunction prohibiting enforcement of Ohio's partial birth abortion ban would remain in effect until the U.S. Supreme Court either denies review or rules on the merits. If the Sixth Circuit refuses to stay the mandate pending a cert. petition, the plaintiffs could ask Justice John Paul Stevens, in his role as Circuit Justice for the Sixth Circuit, to stay or recall the mandate. While it is impossible to predict how he would rule, Justice Stevens in the past has been a staunch defender of a woman's right to choose abortion.
Posted at 19:20 by Howard Bashman



"Public Notice Regarding Initials of Judge Segal": The U.S. District Court for the Central District of California has issued this public notice.
Posted at 17:39 by Howard Bashman



In fact they are not truly "wild": The Federal Trade Commission today has issued a press release entitled "Sellers of 'Girls Gone Wild' Videos Charged with Deceptive Practices; Company Allegedly Charged Consumers' Credit and Debit Cards Without Consent." The complaint that the federal government filed yesterday in the U.S. District Court for the Central District of California can be viewed here. And The Associated Press is reporting that "Government files complaint about 'Girls Gone Wild' marketing."
Posted at 17:30 by Howard Bashman



"Fla. Judge Rules Against Accused Killer": The Associated Press reports here that "A judge has refused to order a Florida newspaper to remove information about an accused serial killer from its Web site." I first reported on this matter, and linked to the information in question, in a post you can access here.
Posted at 16:42 by Howard Bashman



On a question as to which other federal appellate courts have divided, unanimous three-judge Third Circuit panel holds that Due Process Clause does not protect a parent's right to the companionship of his or her adult child: You can access today's ruling of the U.S. Court of Appeals for the Third Circuit at this link. As a result, the father of a man shot to death by the Philadelphia Police has lost his bid to reinstate his federal civil rights suit against the City of Philadelphia and various of its police officers. According to today's opinion, in so ruling the Third Circuit has sided with the D.C. and First Circuits and has sided against the Seventh and Tenth Circuits.

Correction: Contrary to the this post's original title, the Third Circuit's ruling was not unanimous. A footnote that appears at the very close of the opinion states, in full: "Judge Alito concurs in the judgment for essentially the reasons given by the District Court." The reasons given by the district court differ significantly from the reasons on which the other two Third Circuit judges relied in reaching today's result.
Posted at 16:36 by Howard Bashman



"Court Grants Hinckley Unsupervised Visits; Reagan's Assailant Must Still Be Accompanied by Parents": The Washington Post provides this news update. And The Associated Press reports that "Hinckley gets unsupervised visits to family."

The opinion and order that the U.S. District Court for the District of Columbia issued today are both available online at the preceding links.
Posted at 16:25 by Howard Bashman



Additional press coverage of yesterday's medical marijuana ruling of the U.S. Court of Appeals for the Ninth Circuit: Henry Weinstein of The Los Angeles Times reports that "Medical Pot Users Win Key Ruling; The U.S. can't prosecute patients who use it on the advice of a physician and obtain the drug at no charge, an appeals court panel rules." Bob Egelko of The San Francisco Chronicle reports that "Medical pot wins a legal victory; U.S. appeals court ruling is likely to face a challenge." And Claire Cooper of The Sacramento Bee reports that "Major ruling favors medical marijuana."

In other coverage, The San Francisco Examiner reports that "9th U.S. Court protects pot patients." The Oakland Tribune reports that "Appeals court orders feds to halt pot raids; 'We feel we've been vindicated after a long, hard effort,' attorney says." The San Jose Mercury News reports that "Court exempts medicinal pot from federal ban." The Seattle Times reports that "Appeals court upholds medical marijuana use." And The Seattle Post-Intelligencer reports that "Ruling bolsters medical marijuana law; Court says those who use for medicinal reasons are exempt."
Posted at 14:33 by Howard Bashman



"Court OKs Law Banning Late-Term Abortion": The Associated Press provides this coverage.
Posted at 14:19 by Howard Bashman



"Car chiefs failed to read deal documents": The Financial Times today reports that "The chairmen, chief executives and biggest shareholders of Chrysler and Daimler-Benz did not bother to read the deal documents before they agreed on the world's biggest industrial merger, court testimony over the past two weeks has revealed."
Posted at 14:12 by Howard Bashman



Turnabout: The Associated Press is reporting that "The Grinch stole Christmas, and now someone has stolen the Grinch."
Posted at 14:10 by Howard Bashman



Sorry lawyers! Your right to recover the balance of your fee for legal services was discharged in your clients' Chapter 7 bankruptcy cases: The lawyers who represented the debtors in the Chapter 7 cases in which the Seventh Circuit today issued this opinion by Circuit Judge Frank H. Easterbrook appear to have done too good of a job protecting their clients and not good enough of a job protecting themselves. Senior Circuit Judge Richard D. Cudahy dissented from the opinion to the extent that today's decision creates a conflict with this ruling from the Ninth Circuit.
Posted at 13:48 by Howard Bashman



A lawyer traveling in his own car on a journey to pick up a witness seriously injures a pedestrian, who happens to be a doctor: In this opinion issued today, a three-judge Eighth Circuit panel determines whether the law firm's insurance policy provides coverage.
Posted at 11:55 by Howard Bashman



On the agenda: Philadelphia-area appellate lawyers may be interested to learn that Senior Third Circuit Judge Edward R. Becker will be the luncheon guest today (see the second item here) at a meeting of the Federal Courts Committee of the Philadelphia Bar Association. I had hoped to post this announcement earlier this morning, but Blogger was off-line for a while. In any event, I am planning to attend.
Posted at 11:42 by Howard Bashman



BREAKING NEWS -- Divided three-judge Sixth Circuit panel upholds lawfulness of Ohio's partial birth abortion ban: This will be seen as good news by supporters of the new federal ban on partial birth abortion. You can access today's ruling here (HTML) and here (PDF). Senior Circuit Judge James L. Ryan wrote the majority opinion, in which Circuit Judge Alice M. Batchelder joined. U.S. District Judge Arthur J. Tarnow, sitting by designation from the U.S. District Court for the Eastern District of Michigan, dissented and would have affirmed the trial court's decision that had permanently enjoined enforcement of Ohio's ban.

It is also quite worthy of note that the federal government participated in the Sixth Circuit appeal as a friend of the court in support of the constitutionality of Ohio's partial birth abortion ban. You can access what appears to be a complete copy of the federal government's Sixth Circuit brief at this link.

The text of the federal law banning partial birth abortion can be accessed here. So far, three federal district court's have entered injunctions prohibiting the enforcement of the federal law, CNN has previously reported. President Bush signed the ban into law on November 5, 2003. BBC News provides this "Q&A: Partial-birth abortion law."
Posted at 11:24 by Howard Bashman



In Wednesday's newspapers: The Washington Post reports that "U.S. Might Compromise In Moussaoui Dispute; Middle Ground Possible on Witness Access." In news from Virginia, "Malvo's Case in Hands of Va. Jury; Insanity Argued In Sniper Trial" and "Panel Is Asked to Interpret Same Evidence Two Ways." In local news, "Appeals Court Rules Against Morgan Law; For Father, Belated Win In Bitter Custody Case." An article reports that "Judge Rebukes Ashcroft for Gag Violation; Attorney General Says His Remarks About Terrorism Trial Were 'Inadvertent.'" A front page article reports that "FEC Fines Ashcroft's Senate Bid For Breach." In other news, "Bush May Support Gay Marriage Ban." An article reports that "U.S. Considers Expanding FBI Database; Names of Noncrimimal Deportees and Student Visa Violators Would Be Added." In news pertaining to Saddam Hussein, "President Says Hussein Deserves Death Penalty" and "Albright Wonders About Trying Hussein in Iraq." In other news, "Airline Hijacker Pleads Guilty; Pan Am Flight 73 Terrorist Will Receive Life Sentence." An article reports that "EPA Scraps Changes To Clean Water Act; Plans Would Have Reduced Protection." An editorial is entitled "Last Chance." Columnist David S. Broder has an op-ed entitled "Campaign Finance Casualties." And letters to the editor appear under the headings "Fundraising Dysfunction" and "Is This Really Uniform Justice?"

In The New York Times, Adam Liptak reports on "Final Arguments at Trial of Sniper Suspect." An article reports that "Marriage Amendment Backed by Bush." Jennifer 8. Lee reports that "Bush Signs Law Placing Curbs on Bulk Commercial E-Mail." In business news, "Notes Prompt Judge to Halt Chrysler Trial." An article reports that "Crime Database Misused for Civil Issues, Suit Says." In local news, "Prosecutors Not Penalized, Lawyer Says." In news from Iraq, "Prosecution of Hussein: Decade's Digging Is Already Done." An article reports that "Judge Voids New Rule Allowing Snowmobiles in Yellowstone." In business news, an article reports that New York magazine was purchased by the person who owns American Lawyer Media. An editorial is entitled "Trying Saddam Hussein." And columnist William Safire has an op-ed entitled "Behind Closed Doors."
Posted at 06:36 by Howard Bashman



"Blood found on slain prosecutor's Pa. toll ticket; Evidence suggests Luna may not have been driving": The Baltimore Sun today contains this report. And online at FindLaw today, Barton Aronson has an essay entitled "The Murder of an Assistant U.S. Attorney: Highlights the Unfairness of Intense Public Scrutiny of Crime Victims and their Families."
Posted at 06:30 by Howard Bashman



"Legislators challenge lesbian divorce": This article appeared in Tuesday's issue of The Sioux City Journal.
Posted at 00:35 by Howard Bashman



"Governor says he plans to end dispute with AG": Wednesday's edition of The Pacific Daily News contains this report from Guam.
Posted at 00:34 by Howard Bashman



"ACLU advice sought in Torres case": Wednesday's issue of The Saipan Tribune contains this article.
Posted at 00:32 by Howard Bashman



"Jailed student headed to New York": The Star Tribune is reporting that "The man arrested last week and detained in Minneapolis as a material witness in the federal government's investigation of Al-Qaida will be transferred to New York City for further federal court proceedings."
Posted at 00:30 by Howard Bashman



Tuesday, December 16, 2003
"Racial tiebreak case argued in appeals court": The Associated Press provides this report on an appeal argued Monday before the U.S. Court of Appeals for the Ninth Circuit.
Posted at 23:54 by Howard Bashman



"Appeals seek polygamy right": Yesterday's edition of The Salt Lake Tribune contained this article.
Posted at 23:53 by Howard Bashman



"Bush should forgo recess appointments": This editorial appeared in Sunday's issue of The San Antonio Express-News.
Posted at 23:52 by Howard Bashman



"Trying Saddam: Which Court, or Courts, Will Hear His Case, and Which Charges Will Be Brought Against Him?" Law student and military analyst-blogger Phil Carter has this essay today at FindLaw.
Posted at 23:49 by Howard Bashman



"County money for menorah causes dispute": The Tallahassee Democrat provides this report. In somewhat related news, The Palm Beach Post reports that "Palm Beachers sue, seeking official Nativity scene."
Posted at 23:42 by Howard Bashman



In Tuesday's newspapers: In The New York Times, Adam Liptak reports that "Sniper Suspect Is Described as Eager, Not Brainwashed." Neil A. Lewis reports that "Bush Leaves Unclear Role of Iraqis in Any Trial." In local news, "With Man's Life in Balance, Judge Struggles With Law." An article reports that "Crusaders Against Junk Faxes Brandish Lawsuits." And in local news, "Chief of British Courts Takes a Cue From New York" and "Judges Say Democratic Official Issued List of Favored Lawyers."

The Washington Post contains front page articles headlined "Bush Says Iraqis Will Try Hussein; President Opposes International Tribunal For Captured Dictator" and "Iraqi Planners Hope To Start Trial by Spring." In news from Virginia, "Prosecution Psychologists Say Malvo Was Not Insane; Both Sides Rest Cases; Closing Arguments Set for Today." An article reports that "Texas's Death Row in a Momentary Lull; 3 Men Granted Stays Hours Before Execution After Suit Asserts Cruelty of Injections." A front page article reports that "Thurmond Paternity Claim Valid, Family Says; L.A. Schoolteacher Is Acknowledged as Late Senator's Child." And an editorial is entitled "Justice for a Tyrant."

The Washington Times reports that "Malvo is sane, experts testify." In news from Iowa, "Group fights gays' 'divorce.'" An editorial is entitled "Winning on abortion." Bruce Fein has an op-ed entitled "Muzzling democracy." And in yesterday's edition, Gary J. Andres and Michael McKenna had an op-ed entitled "Judging the bench."

USA Today reports that "Insights vary about Malvo's sanity; Experts disagree on sniper suspect's mental health." And in other news, "Bryant lawyers ask to present evidence about prescription."

The Boston Globe reports that "Trial could cast war in new light." And in other news, "Witness says killer had loving family."

The Los Angeles Times reports that "Psychologist Discounts Malvo Insanity Claim; Prosecution witness says the sniper suspect knew 'exactly what he was doing' in the attacks." In other news, "Bryant Defense Takes Offensive; Court filings portray alleged victim's credibility as pivotal issue. Laker guard could miss Friday's game." In local news, "Group Files Appeal in Oak Removal; The activists contend that developers have broken their promise to save the giant tree." And editorial cartoonist Michael Ramirez has a characteristically provocative offering.
Posted at 22:55 by Howard Bashman



Reuters is reporting: Now available online are articles headlined "Bush Appears to Open Door to Same-Sex Unions"; "Kobe Bryant's Lawyers Go on Attack Against Accuser"; "U.S. Appeals Court Sets Aside Federal Marijuana Law"; "Michael Jackson Awaits Calif. Molestation Charges"; "Jury Mulls Verdict on Malvo in Sniper Trial"; "Ashcroft Admonished for Meddling in Terror Case"; and "Lawyers Seek to Move Trial for Enron's Former CFO."
Posted at 22:30 by Howard Bashman



"High court clears way for Texas executions; Inmate had challenged constitutionality of lethal injections": The Houston Chronicle provides this article.
Posted at 22:27 by Howard Bashman



"Judge Calls DaimlerChrysler Trial Recess": The Associated Press is reporting that "Billionaire investor Kirk Kerkorian's lawsuit against DaimlerChrysler was put on hold Tuesday after his lawyers claimed the company suddenly gave them 61 pages of handwritten documents that could bolster their case." In other coverage, The Financial Times reports that "DaimlerChrysler trial skids to a halt." The Detroit Free Press has an article headlined "Courtroom surprise: DCX finds notes supporting Kerkorian; judge orders recess in trial." And Reuters reports that "DaimlerChrysler Trial Delayed."
Posted at 22:20 by Howard Bashman



"Roth's final role: grandfather; Roth often joked of not having a namesake - then came William." This article appears today in The News Journal of Wilmington, Delaware.
Posted at 22:19 by Howard Bashman



"Ashcroft sanctioned for violating gag order in Detroit terror trial": The Detroit News provides this report on an opinion (apparently not yet available online) that a Detroit-based federal district judge issued today.
Posted at 22:13 by Howard Bashman



The Associated Press is reporting: David Kravets reports that "U.S. Appeals Court Backs Some Medical Pot." And in other news, "Bush Says He Could Back Gay Marriage Ban"; "Fifth Lackawanna Defendant Sentenced"; "Judge Admonishes Ashcroft for Statements"; "Offices of Interpreter's Lawyers Searched"; and "Bush Signs Anti-Spam Legislation."
Posted at 22:00 by Howard Bashman



Section 1331 or 1257? Perhaps this opinion issued today by Circuit Judge Michael W. McConnell on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit means to refer to 28 U.S.C. §1257 instead of 28 U.S.C. §1331 in the only full paragraph found on page 9 of the slip opinion?
Posted at 21:06 by Howard Bashman



Divided three-judge Ninth Circuit panel holds that federal government cannot preclude cancer patients from using home-grown marijuana to treat their illness: The case was decided on Commerce Clause grounds. You can access the opinion at this link. Circuit Judge Harry Pregerson wrote the majority opinion, in which Circuit Judge Richard A. Paez joined. Senior Eighth Circuit Judge C. Arlen Beam dissented.

I'm certain the federal government will seek further review, perhaps first from the en banc Ninth Circuit and thereafter, if necessary, from the U.S. Supreme Court. The Ninth Circuit's Commerce Clause jurisprudence as of late has gone a bit off the reservation in ways that the U.S. Supreme Court is unlikely to support. Only time will tell whether this case, or one of the other attractive candidates for reversal, will be the one to capture the Justices' attention. In the meantime, join me in congratulating Law Professor Randy Barnett on the important victory he achieved for his clients. How do I know it's important? For one thing, the Ninth Circuit issued the decision late today as an "immediate filing." For another, the case has its own snazzy Web site.
Posted at 19:09 by Howard Bashman



Does not compute: If you're against same-sex marriage, shouldn't you be for same-sex divorce? After all, the result is one fewer same-sex marriage. But perhaps there's a flaw in my logic, as The Des Moines Register today reports that "A group of conservative lawmakers, contending a state judge had no authority to grant a divorce to a Sioux City lesbian couple last month, on Monday asked the Iowa Supreme Court to throw out the divorce."
Posted at 19:02 by Howard Bashman



Perhaps not the most advisable way to combat pornography: The San Francisco Chronicle reports that "17 hurt as S.F. Muni bus slams into shop; Cause of crash on Mission not clear." The bus wasn't on a mission; the accident was on Mission [Street]. Here's a photo.
Posted at 17:40 by Howard Bashman



A guest post from Law Professor Eugene Volokh: Plus, it's been conveniently ghost-written for me to use:
Calling all law review editors: UCLA law professor Eugene Volokh wants to write a chapter on Law Review Write-On Competitions to the next edition of his Academic Legal Writing book, and he's looking for good tips to give to the competitors. If you're a current or former law review editor who has thought about this, and have some suggestions, he'd love to hear from you -- please e-mail him at volokh at law.ucla.edu.
Whether I'll ever get to write for "The Volokh Conspiracy" remains in doubt -- as Sasha correctly observed at lunch yesterday, a good pseudonym is so very difficult to unearth. But the chief conspirator can guest post here anytime.
Posted at 17:30 by Howard Bashman



Eugene Volokh has more on the Texas sex toy prosecution: Plus, he channels Beavis and Butt-Head. My post on this topic from earlier today can be accessed here.
Posted at 17:16 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Jury Deliberations Begin in Sniper Case"; "Feds Opine on Enemy Combatants' Rights"; and "Judges Excused in Ten Commandments Appeal."
Posted at 17:09 by Howard Bashman



One fewer reason for cows to be angry: A divided three-judge panel of the U.S. Court of Appeals for the Second Circuit today reversed the dismissal, for lack of standing, of an individual's suit that seeks to have the Department of Agriculture ban the use of "downed livestock" as food for human consumption. The majority opinion explains that "downed" is "an industry term used to describe animals that collapse for unknown reasons and are too ill to walk or stand prior to slaughter." The majority opinion goes on to explain that "Under current USDA regulations, downed livestock may be used for human consumption after passing a mandatory post-mortem inspection by a veterinary officer." The majority opinion, which reinstates this lawsuit, can be accessed here. The dissenting opinion, whose author would have affirmed the trial court's dismissal for lack of standing, can be accessed here.

Reuters reports that "Court Reinstates Mad Cow Suit Against USDA." You can learn more about mad cow disease here, here, here, and here. And The Atlantic magazine, in September 1998, contained an article headlined "Could Mad-Cow Disease Happen Here?"
Posted at 15:54 by Howard Bashman



"Sniper Jury Can't Mull 'Impulse' Defense": The Associated Press provides this report.
Posted at 13:35 by Howard Bashman



Unanimous three-judge Eighth Circuit panel affirms denial of request for punitive damages arising from deadly American Airlines crash upon landing in Little Rock in June 1999: You can access today's opinion at this link. The opinion begins, "An American Airlines jet aircraft, being operated as Flight 1420 from Dallas/Fort Worth to Little Rock, crashed into a non-frangible approach light stanchion after touching down, broke apart, and caught fire. Eleven people died and more than eighty were injured as a result of the accident." More information about the crash can be found here, here, and here.
Posted at 12:34 by Howard Bashman



Three-judge D.C. Circuit panel holds that the Elizabeth Morgan Act is an unconstitutional bill of attainder: Today's opinion, representing the latest chapter in the long-running dispute between Dr. Eric A. Foretich and his former wife, Dr. Jean Elizabeth Morgan, can be accessed here.
Posted at 10:38 by Howard Bashman



In coverage of yesterday's developments at the U.S. Supreme Court: Linda Greenhouse of The New York Times reports that "Justices Will Hear Appeal on Cheney's Energy Panel" and that "Justices Agree to Tackle Antitrust Case." In The Washington Post, Charles Lane reports that "High Court Will Review Ruling On Cheney Task Force Records; Decision a Blow to Groups Seeking Information on Energy Policy" and that "Justices' Ruling Sets Broad 'Probable Cause' Standard in Drug Arrests." In The Los Angeles Times, David G. Savage reports that "Supreme Court to Hear Cheney Secrecy Case; Justices will determine whether the vice president must reveal documents that show who attended energy task force meetings"; "Court to Decide Reach Of U.S. Antitrust Laws; The case asks whether foreign price-fixers may be sued in America by foreign buyers for purchases made abroad"; and "Justices to Hear Mexican Truck Case; The court will decide whether the vehicles can deliver goods in the U.S. despite pollution risks."

In The Boston Globe, Lyle Denniston reports that "High court to review executive powers; Disputes stem from energy policy, trade" and that "High court looks at antitrust limits; Justices to review Sherman Act's reach in world markets." In The Chicago Tribune, Jan Crawford Greenburg reports that "Court to rule on secrecy of Cheney energy panel." In The San Francisco Chronicle, Bob Egelko reports that "Justices to weigh truck entry; White House seeks to bypass smog review of Mexican vehicles." USA Today reports that "Court will hear energy panel case; To decide whether vice president has to reveal advisers."

The Washington Times reports that "Supreme Court to rule on Mexican trucks in U.S." The Houston Chronicle reports that "Supreme Court will decide what Cheney discloses." And The San Antonio Express-News reports that "Supreme Court to hear NAFTA trucking case."
Posted at 10:01 by Howard Bashman



Texas is unwilling to allow Alabama to corner the market on sex toy prosecutions: This morning's edition of The San Francisco Chronicle reports that "Texas housewife busted for hawking erotic toys; Sales rep for Brisbane firm sold vibrator to undercover agents."

The Star-Telegram of Fort Worth, Texas, meanwhile, has been all over this story for days. Today's newspaper contains an article headlined "Judge grants hearing in sex-toy case," which is accompanied by a photograph of the defendant and her husband. (Not to be outdone, The San Francisco Chronicle offers a large photo of the defendant and her lawyer.) Yesterday The Star-Telegram reported that "Sex-toy suspect to seek ruling." And on Sunday the newspaper reported that "Motion readied for dismissal of sex toys case."

As I have previously reported here and here, the U.S. Court of Appeals for the Eleventh Circuit currently is in the process of reaching a decision on a constitutional challenge to an Alabama law that criminalizes the distribution of sex toys.
Posted at 09:19 by Howard Bashman



"Mourners Recall Luna's Warmth; More Than 1,000 Honor Slain Federal Prosecutor": This article appears today in The Washington Post. And The Baltimore Sun today reports that "1,000 gather in Columbia to mourn U.S. prosecutor found slain in Pa.; Authorities still searching for clues in Luna's death."
Posted at 08:08 by Howard Bashman



Available online at Town Hall: Thomas Sowell has an essay entitled "Courts without law." Mark Tapscott has an essay entitled "Wake Up Conservatives! Supreme Court just did what could never happen here." Paul Greenberg has an essay entitled "Bad day for the First Amendment." And Paul Jacob has an essay entitled "The Right to Shut Up and Pay Your Taxes."
Posted at 08:05 by Howard Bashman



"Fisher sworn in as federal judge": The Pittsburgh Post-Gazette contains this report on the swearing-in of the judge most recently confirmed to serve on the U.S. Court of Appeals for the Third Circuit.
Posted at 07:57 by Howard Bashman



"Justices bow out in Moore appeal; Riley, high court will appoint special seven-member panel": The Birmingham News today provides this report. And The Montgomery Advertiser contains an article headlined "7 retired justices may hear appeal."
Posted at 07:55 by Howard Bashman



Available online at law.com: Tony Mauro reports that "Supreme Court Sets Stage for Executive-Branch Review." Jonathan Ringel reports that "Congress is Kenyan's Last Hope to Stop Deportation." And in other news, "Florida Bar Hits David Boies With Ethics Complaint."
Posted at 07:50 by Howard Bashman



Monday, December 15, 2003
"Morbid fascination" indeed: When news emerged earlier today that the U.S. Supreme Court had vacated, by a vote of 5-4, the last minute stay of execution issued in the case of Texas death penalty inmate Kevin Lee Zimmerman, at least one certain law blogger couldn't help but wonder whether Zimmerman would now get to experience a second "last meal."

As it turns out, however, the Texas Department of Criminal Justice's online listing of "Final Meal Requests" no longer exists, unless, of course, you wish to see the Google cache. Indeed, The Houston Chronicle reports today that "Texas drops Web list of prisoners' last meals." And previously, The Dallas Morning News reported that "State prison agency pulls plug on last-meal Web site; Public appetite for data superseded by concerns about taste, officials say."

The Department of Criminal Justice's Web site still provides lots of other "Death Row Information." And, of course, there's always the "dead man eating" Web site and the associated "Dead Man Eating Weblog."
Posted at 21:55 by Howard Bashman



"Appeals Court: Confederate flag-burner must stay off Statehouse grounds." The Associated Press offers this report on a decision that the South Carolina Court of Appeals issued today.
Posted at 21:44 by Howard Bashman



"Lesbian Divorce Is Challenged in Iowa": The Associated Press provides this report. You can access my earlier coverage of this matter here.
Posted at 20:30 by Howard Bashman



"Supreme Court to Hear Case on Cheney Energy Records": Charles Lane of The Washington Post has this report. And tonight on NPR's "All Things Considered," Nina Totenberg has a report (Real Player required) entitled "High Court to Delve into Cheney's Energy Panel."
Posted at 20:29 by Howard Bashman



In Tuesday's issue of The Christian Science Monitor: Warren Richey reports that "Court to enter fray over energy-policy task force; Supreme Court will hear case alleging that industry leaders played a key role that must be disclosed." An article is headlined "The trial that could shape Iraq: Concerns mount that the nation's decimated justice system can't give Hussein a fair trial." And in other news, an article asks "A civics lesson on the back of a dollar bill?"
Posted at 20:25 by Howard Bashman



"Police can make mass arrests when drugs found in cars, court rules": Stephen Henderson of Knight Ridder Newspapers has this report.
Posted at 20:22 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Woman Faces Charge for Selling Sex Toys"; "Judge OKs Internet Company's Pop-Up Ads"; "Tobacco Case Lawyer Opposes Higher Fees"; "Scott Peterson's Lawyer Wants Trial Moved"; "Judges Chosen for Ten Commandments Case"; "Top Court to Decide Vitamin Prices Case"; and "Hundreds Attend Slain Prosecutor's Funeral."
Posted at 20:04 by Howard Bashman



"Too Much Of A Good Thing -- Oral Argument In The Superior Court of Pennsylvania": The December 2003 installment of my monthly appellate column, published in The Legal Intelligencer on December 8, 2003, can now be accessed online.

My essay begins: "At the risk of losing my invitation to attend the next gathering of Pennsylvania-based appellate litigation enthusiasts, I have come to the controversial conclusion that the Superior Court of Pennsylvania should stop leaving it up to lawyers to decide which appeals are deserving of oral argument." You can access the whole thing at this link.

Already I have heard from judges serving on the U.S. Court of Appeals for the Third Circuit and the Superior Court of Pennsylvania regarding the print version of this column, so at least it's being read somewhere.
Posted at 17:15 by Howard Bashman



"Memorial service held for Luna; More than 1,000 gather to honor slain federal prosecutor": The Baltimore Sun provides this report. And The Associated Press reports that "Friends, Family Remember Slain Prosecutor."
Posted at 17:01 by Howard Bashman



"[A]s did the University of Michigan, the Chicago Police Department had a compelling interest in diversity." Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, in an opinion by Circuit Judge Terence T. Evans, has upheld the lawfulness of the Chicago Police Department's affirmative action plan intended to achieve a diverse population in the rank of sergeant. In reaching its decision, the panel relied heavily on the U.S. Supreme Court's recent ruling in Grutter v. Bollinger.
Posted at 16:10 by Howard Bashman



U.S. Supreme Court allows Texas to use on its death row inmates execution drug deemed too cruel to kill a dog: You can access today's order lifting a stay of execution in Zimmerman v. Johnson, over the dissent of four Justices, at this link.
Posted at 15:52 by Howard Bashman



"20 questions for the appellate judge" update: Either late today or early tomorrow, I will be dispatching via email the questions that I have prepared for January 2004's interviewee, Tenth Circuit Chief Judge Deanell Reece Tacha. Thanks to all of the readers who responded to my request for suggested questions for Chief Judge Tacha. Among those who responded was another federal appellate judge, which was the first time that has happened.

Soon I will issue a request for questions for February 2004's interviewee, Ninth Circuit Judge Stephen Reinhardt.
Posted at 15:30 by Howard Bashman



Prison's failure to serve Muslim inmate's post-Ramadan feast until one week later was not a de minimis violation of the inmate's rights justifying dismissal of the inmate's federal civil rights suit: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit issued this decision.
Posted at 15:20 by Howard Bashman



The Birmingham News is reporting: Over the past several days, the following articles have appeared in that newspaper: "Judge bars flu bug from courtroom"; "Judge sets Aug. 2 trial date for Rudolph case"; and "Rudolph to face death penalty; U.S. move expected, defense lawyer says."
Posted at 14:25 by Howard Bashman



Washington Post editorial cartoonist Tom Toles on gerrymandering: In today's paper he has this cartoon.
Posted at 14:02 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Court Allows Arrests of All in Drug Stops"; "Justices Recuse From Commandments Appeal"; and "Psychologist Says Malvo Is Not Ill."
Posted at 13:35 by Howard Bashman



Today's U.S. Supreme Court opinions and orders: You can access today's opinion in Maryland v. Pringle, No. 02-809, at this link. The Chief Justice issued the unanimous opinion for the Court. You can access today's opinion in Castro v. United States, No. 02-6683, at this link. Justice Stephen G. Breyer wrote the majority opinion, in which all Justices joined in full except for Antonin Scalia and Clarence Thomas. Justice Scalia filed an opinion concurring in part and concurring in the judgment in which Justice Thomas joined.

The Order List issued today can be accessed here. The Court granted review in three cases, all of which are summarized in the press coverage I have previously linked to here.
Posted at 13:26 by Howard Bashman



"Court Lifts Stay of Execution on Inmate": The Associated Press reports here that "A divided Supreme Court on Monday lifted a last-minute stay that had spared a condemned Texas inmate from the death chamber."
Posted at 11:22 by Howard Bashman



"Roth remembered for 'pure heart'; Famous for his IRA, he served 34 years in Congress": This obituary appears today in The News Journal of Wilmington, Delaware. And in related coverage from that newspaper, "From his IRA to tax cuts, Roth was a force in politics; Sen. Biden: '... nobody gave him the credit. He was a big deal'"; "He 'had a rare breed of elegance'"; and "The life of Bill Roth: An early interest in politics leads to a distinguished career." Also, an editorial is entitled "Bill Roth devoted his long life to hard work, service and dedication."
Posted at 11:15 by Howard Bashman



"Funeral for Slain Prosecutor": The Associated Press today provides this report.
Posted at 10:47 by Howard Bashman



Today's U.S. Supreme Court opinions and orders: Anne Gearan of The Associated Press reports that "High Court to Hear Cheney-Energy Dispute" and that "Court Will Take Mexican Trucking Case." And Gina Holland reports that "Top Court to Decide Vitamin Prices Case."

Reuters, meanwhile, is reporting that "Top Court Hears Cheney's Task Force Case"; "High Court to Hear Mexican Truck Environmental Case"; and "U.S. Court to Hear Vitamin Makers' Antitrust Case."
Posted at 10:00 by Howard Bashman



Spam: The Atlanta Journal-Constitution is in the midst of running a series of articles about junk emails. Today's main article is headlined "Spam slayers: Guardians of your in box fight on two fronts: In cyberspace, and in the courts."
Posted at 09:55 by Howard Bashman



On the agenda: The Supreme Court of the United States at 10 a.m. today is scheduled to issue an Order List and one or more opinions in argued cases.

And in completely unrelated news, I'm scheduled to have lunch today in Philadelphia with Sasha Volokh of "The Volokh Conspiracy." In an amazing coincidence, the lunch will occur at the same dim sum eatery where I had lunch so many months ago with Juan Non-Volokh. I hope to learn the status of my application to become a potentially pseudonymous Volokh co-conspirator once the "How Appealing" blog ceases to exist.
Posted at 09:33 by Howard Bashman



"The Judiciary Memos: Who Investigates Whom? And why aren't the big newspapers interested?" Byron York today has this essay at National Review Online.
Posted at 09:31 by Howard Bashman



"Judge denies having a conflict; Samuel A. Alito Jr. is accused of a conflict of interest in dismissing a woman's lawsuit against Vanguard, with which he holds investments." This article appears today in The Philadelphia Inquirer.
Posted at 07:42 by Howard Bashman



"The Bench: Silly Old Bear v. Mouse." Jeffrey Toobin has this essay in the December 22, 2003 issue of The New Yorker.
Posted at 06:55 by Howard Bashman



In Monday's newspapers: The Washington Post reports that "U.S. Forces Uncover Iraqi Ex-Leader Near Home Town; Detention Could Lead To Trial on Charges of War Crimes, Genocide." In related coverage, "Iraqi Governing Council Says It Wants to Try Hussein." An obituary is headlined "Sen. William Roth Dies; Force Behind IRAs." In other news, "Civil Rights Charges Dog Citizen Patrols on Border; Armed Groups Seek to Curb Illegal Immigrants, Smugglers." An editorial is entitled "Rescuing U.S. Democracy." Columnist William Raspberry has an op-ed entitled "A Supreme Conundrum," while columnist George F. Will has an op-ed entitled "Lessons From Nuremberg."

In The New York Times, Neil A. Lewis reports that "Iraqis Just Recently Set Rules to Govern Tribunal." And an obituary is headlined "William V. Roth Jr., Veteran of U.S. Senate, Dies at 82."

The Christian Science Monitor contains an article headlined "Is everybody picking on Rosa Parks?" An article is headlined "Hussein: from pedestal to tribunal; Iraqi leaders say an Iraqi court will try Hussein for his brutal regime, but the process could prove complicated." And in other news, "Venezuelans divided over who owns the land; Venezuela's supreme court ruled last month that one major government-sponsored land invasion was illegal."
Posted at 06:30 by Howard Bashman



Sunday, December 14, 2003
One large verdict fails to survive appellate review in Alabama, while another awaits review on appeal: The Associated Press reported on Friday evening that "Court Overturns $82M Verdict Against GM." And in coverage of a different case, The Mobile Register on Friday reported that "Mobile lawyers broke record; State stuck with Cunningham, Bounds firm at retrial, and saw original award tripled."
Posted at 23:30 by Howard Bashman



Elsewhere in Sunday's newspapers: The Los Angeles Times reports that "Snipers' Motives Start to Emerge; As Lee Boyd Malvo's trial winds down, a clearer picture takes shape of the killing pair." In news from Texas, "Antiabortion Effort Targets Unbuilt Clinic; A construction boycott is employed against a Planned Parenthood facility. The tactic is criticized by some as economic blackmail." A report from The Associated Press is headlined "Ex-Con Berates His Lack of Citizenship; Constantly in trouble, Bernaldo Groves was sent to Jamaica 24 years after he left at age 15." An article originally published in The Orlando Sentinel is headlined "Panel May Foretell Change of Status for Puerto Rico." In other news, "New Doors Causing Cockpit Problems." And an op-ed by Alex Ricciardulli is entitled "A Job for a Tough Guy: Schwarzenegger's persona may open the way for compassionate reforms."

The Boston Globe reports that "Post-9/11 limits on dissent claimed; Law enforcement cites terror threat." In other news, "US officer to resign for assaulting Iraqi." An article reports that "New storybook reopens old wounds." Columnist Thomas Oliphant has an op-ed entitled "A clean win for campaign finance law," while columnist Ellen Goodman has an op-ed entitled "Ironies of the equal rights battle." And in the Magazine section, Christopher Muther has an essay entitled "Gay Times: The issue isn't really gay marriage and morality. It's who is going to throw the most fabulous wedding reception."

Finally, in The Washington Times, Cal Thomas has an op-ed entitled "Supreme Court political gag order." And Richard Lessner has an op-ed entitled "Marriage amendment gate."
Posted at 23:05 by Howard Bashman



Available online from the Knight Ridder News Service: An obituary headlined "Former Sen. William Roth dies at 82" and a profile published last Wednesday headlined "New No. 2 at Justice a 'class act' known for apolitical, aggressive style."
Posted at 23:00 by Howard Bashman



"The brainwashing defense": The December 22, 2003 issue of U.S. News and World Report contains this article about the Lee Boyd Malvo trial.

And in the December 22d issue of Newsweek, Linda McDougal has an essay entitled "I Trust Juries--and Americans Like You: Taking away our legal rights isn't reform. In cases like mine, the civil-justice system is our only hope."
Posted at 22:45 by Howard Bashman



In Sunday's newspapers: The Washington Post reports that "Al Qaeda's Finances Ample, Say Probers; Worldwide Failure to Enforce Sanctions Cited." In other news, "U.S. Family Presses Complex Holocaust Claim." An editorial is entitled "A Miranda Loophole." And a letter to the editor appears under the heading "Why Plagiarism Is So Tough to Curb."

The New York Times contains an article headlined "Rethinking the Death Penalty." An article reports that "In Utah, a Notorious Killer's Death on Death Row Leaves Mixed Emotions." In other news, "Spanish Judge Harbors Bias, Says Reporter in Terror Case." An article reports that "Woman, 78, Says She Is a Daughter of Thurmond." The Week in Review section contains articles headlined "Campaign Finance: A Law Survives. Now, Let's Subvert It"; "Race, Sex and Forbidden Unions"; and "Presidents' Power to Polarize Gives Them a Winning Edge." The Magazine section contains items entitled "Civil Disobedience Against Affirmative Action" and "Give Felons the Vote." In business news, an article asks "Who's Afraid of Eliot Spitzer?" An editorial is entitled "Captain Yee's Ordeal." And letters to the editor appear under the heading "The Plight of Gays in the Military."
Posted at 18:35 by Howard Bashman



"Public Access: Courts weigh convenience against concerns over privacy; Unlike other states, Kentucky keeps online court records private." This article appears today in The Courier-Journal.
Posted at 17:55 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Slain Prosecutor's Route Adds to Mystery"; "Study Shows Fewer Cases Going to Trial"; "Terror Panel Seeks Civil Liberties Board"; "Iowa Sex Offenders Fight Housing Rules"; and "Compensation to Family Lowers DUI Sentence."
Posted at 14:50 by Howard Bashman



"Former Del. Senator Bill Roth dies": The News Journal of Wilmington, Delaware provides this report. In related coverage, "Biden saddened to lose 'close friend' Roth." And The Associated Press reports that "Former U.S. Sen. William Roth Dies." Please join me in extending condolences to Senator Roth's widow, Third Circuit Judge Jane R. Roth. Presumably the Third Circuit's Clerk's Office will be contacting counsel if this very sad development will have an impact on the oral arguments that have been scheduled to occur in Philadelphia during the week that begins tomorrow.
Posted at 14:36 by Howard Bashman



In news from Guam: The dispute between the island's governor and its first elected attorney general over the scope of the attorney general's powers is becoming personal, this article from Monday's edition of The Pacific Daily News reports. A related article is headlined "Infighting raises concerns; AG, governor need to focus on issues, residents say." And a timeline of the dispute can be accessed here.

As this history of the U.S. Court of Appeals for the Ninth Circuit explains, "Guam joined the Ninth Circuit in 1951." More information about Guam is available here, from the Central Intelligence Agency.
Posted at 12:10 by Howard Bashman



"Mailer sees Kamehameha's potential": This article, which mentions an appeal that will soon be considered by the U.S. Court of Appeals for the Ninth Circuit, appears in today's issue of The Honolulu Advertiser.
Posted at 12:05 by Howard Bashman



"Obesity fight heads from fork to court; Opponents try to ban suits against food industry": The Detroit News today contains this report.
Posted at 11:30 by Howard Bashman



"Defending sniper suspects costs Md.; Virginia pays larger part of $1.3 million in legal fees; 'A constitutional responsibility'": This article appears today in The Baltimore Sun.
Posted at 11:29 by Howard Bashman



"Tension the rule for Michigan judiciary": George Weeks, politics columnist for The Detroit News, today has this essay in that newspaper.
Posted at 09:12 by Howard Bashman



"Texas at center of debate over race, admissions": The Houston Chronicle today contains this report.
Posted at 09:10 by Howard Bashman



"'Double life' eyed in fed's murder": This article appears today in The New York Post. Today's edition of The Philadelphia Inquirer reports that "After his slaying, a rising star draws personal scrutiny." The Washington Times today reports that "Prosecutor's kin calls him 'loving, caring' husband." And The Pittsburgh Post-Gazette today contains an article headlined "Threats part of landscape for prosecutors; A few slain; judges, agents targeted, too."
Posted at 08:58 by Howard Bashman



BREAKING NEWS -- SADDAM HUSSEIN CAPTURED ALIVE IN IRAQ BY US TROOPS: CNN.com offers this report. The New York Times reports that "Iraqis Fill Streets of Capital, Firing Guns in Celebration." The Associated Press reports that "Bush Got Early Word of Saddam's Capture" and that "New Tribunal Might Be Option for Saddam." Reuters reports that "Saddam captured near home town, bearded and tired" and that "Saddam's capture seen a major coup." BBC News reports that "Saddam Hussein arrested in Iraq" and that "Iraqis celebrate Saddam capture." Also, a BBC News analysis is entitled "Capture of Saddam." The Washington Post presents this video coverage (Real Player required) of the press conference in Iraq at which the capture was announced.
Posted at 08:37 by Howard Bashman



Saturday, December 13, 2003
Ten Commandments news from here and there: The Idaho Statesman reports that "Legislator wants 'God’s law' in Capitol" and that "Anti-gay group will visit Boise on Sunday; Human rights groups plan counter rallies."

In news from Georgia, The Athens Banner-Herald reported on Friday that "Barrow makes its case; County wants dismissal of Commandments suit." Also on Friday, The Gainesville Times reported that "Barrow wants plaintiff revealed or suit tossed." And The Gwinnett Daily Post reports that "Man donates book proceeds to fight ACLU."

Finally, from Utah The Salt Lake Tribune reported on Friday that "Summum church asks judge for OK to erect monument in Duchesne park." The article explains that the religion's "beliefs involve sexual ecstasy, mummification and sacramental wine."
Posted at 23:58 by Howard Bashman



Elsewhere in Saturday's newspapers: The Boston Globe reports that "Iowa judge causes stir in granting gay divorce." An article from The Associated Press is headlined "Key witness for state in tobacco case testifies." And in other local news: "Ex-wife urges jury to spare Sampson; Testimony angers victims' families"; "Closing arguments made in redistricting case"; and "Groundskeeper spat on him, ex-Yankee testifies; Lawyer says Sox worker may lose sense of smell."

The Washington Times reports that "Ex-Navy pilot loses libel suit, again." An article reports that "Officer avoids court-martial." In other news, "Al Qaeda suspect identified as Canadian college student." An editorial is entitled "Col. West's ordeal." Bob Barr has an op-ed entitled "First Amendment lockout," while Michelle Malkin has an op-ed entitled "Portrait of a hatemonger."

The Los Angeles Times reports that "Schwarzenegger May Pump Life Into 'Non-Native' Amendment." In news from Detroit, "Judge Criticizes Prosecutors for Holding Evidence; A letter accusing a terrorism trial witness of lying was not turned over to the defense." An article reports that "Church Case Secrecy May Ease; Appeals court decision gives the public a chance to seek access to grand jury-related proceedings." In other news, "Canadian Panel Says Song Downloads Are Legal; Copyright Board backs private copying but says uploading music to networks is piracy." And an article reports that "Judge Rejects 'No Surprises' Habitat Conservation Plan."
Posted at 23:45 by Howard Bashman



Detroit's newspapers are reporting: The Detroit News today reports that "Judge chastises prosecutors in Detroit terror case; He says they should have turned over documents to defense attorneys, but doesn't guarantee a new trial" and that "Daimler didn't have takeover plan, ex-Chrysler president testifies." The Detroit Free Press today reports that "Terror prosecutors scolded; Judge considers effect of withheld evidence on trial" and offers an article headlined "Stallkamp: It was merger; He backs DCX's Schrempp; Kerkorian lawyers confident."
Posted at 23:20 by Howard Bashman



Pennsylvania Attorney General D. Michael Fisher to be sworn into service on U.S. Court of Appeals for the Third Circuit on Monday: The Philadelphia Inquirer provides this report. Fisher was the one and only federal appellate court nominee whom the U.S. Senate confirmed when it returned to conduct a single day of business this past week. The entire list of civilian confirmations that occurred on that day can be viewed here.
Posted at 23:10 by Howard Bashman



"Federal Trials Drop as Court Cases Rise in a Longtime Trend": Adam Liptak will have this article in Sunday's edition of The New York Times.
Posted at 16:54 by Howard Bashman



"Where There's Smoking Gun, There's Fire": This article will appear tomorrow in the Fashion and Style section of The New York Times.
Posted at 11:39 by Howard Bashman



In Saturday's newspapers: The Washington Post reports that "Military Urged To Try or Free 660 Detainees; Senators Visit Cuba Center." In other news, "FBI Applies New Rules to Surveillance; Many Searches Not Subject To Regular Courts' Oversight." An article reports that "Court Rejects Suit By Woman Who Was Navy Pilot." In news from Miami, "Florida Greenpeace Case Hinges on 1872 Law." In other news, "Woman Claims Thurmond As Father; Proof Forthcoming, Black Retiree Says." An article reports that "Army Fines Officer for Firing Pistol Near Iraqi Detainee." In news from Virginia, "2 Pentagon Officials Get 24 Years in Fraud; Millions Demanded in Cash, Favors From Minority Firms Seeking Contracts." An article reports that "Canadian Probed for Al Qaeda Ties." In other news, "Nasty Language on Live TV Renews Old Debate; FCC Takes Heat for Ruling on Adjectival Usage." And an editorial is entitled "Test It, Mr. Warner."

The New York Times reports that "3 Inmates' Lives Spared in Texas by Court Inaction." In other news, "Campaign Finance Groups to Push for More Changes." An article reports that "Bill to Fortify Protection of Witnesses Gets Backing." In local news, "Lawsuit Shows Beach Umbrella Can Be a Safety Hazard" and "Boy, 11, Gets 18 Years in the Juvenile System for Murder of 3-Year-Old." An essay in the Arts section is headlined "Discriminating? Yes. Discriminatory? No." An article headlined "A Houston Holiday: Barbecue, Al Green and 5,000 Guests" begins, "Over-the-top business parties may just now be making a comeback in New York, but in Houston, the trial lawyer W. Mark Lanier's holiday gala has never missed a beat." Daniel Levitas has an op-ed entitled "Our Enemies at Home." And letters to the editor appear under the heading "Campaign Law: The Justices Decide."

Finally, online at OpinionJournal is an editorial entitled "The March of Folly: The Supreme Court abandons the Constitution in favor of the latest fad."
Posted at 11:20 by Howard Bashman



"Anderson wins lawsuit against News Journal; Jury awards Florida road paver $18.28 million": The Pensacola News Journal reports here today that "A jury awarded Joe Anderson Jr. $18.28 million Friday night, deciding that a Pensacola News Journal news story maliciously portrayed the road paver in a false light." And in other coverage, The Associated Press reports that "Fla. Jury Awards Road Paver $18.28M."
Posted at 11:14 by Howard Bashman



"The Bushes are poor judges of judges": Diane Roberts has this essay today in The St. Petersburg Times.
Posted at 08:38 by Howard Bashman



"Slayings suspect's lawyers want T-U to pull Internet material; Motion also seeks order to halt reports on the deaths that are based on public records." The Florida Times-Union yesterday had this report. You can access that newspaper's in-depth coverage of accused serial killer Paul Durousseau at this link.
Posted at 08:28 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Ex-Female Combat Pilot Can't Sue Critics"; "Judge Rips Lawyers in Detroit Terror Case"; "Trial Date Set in Abortion Clinic Bombing"; "ACLU Sues H.S. Over Club Including Gays"; and "Accused Killer's Lawyers Target Newspaper."
Posted at 08:24 by Howard Bashman



"Arguments begin in Maui church lawsuit": The Honolulu Advertiser reports here today that "A federal judge yesterday heard several groups' arguments in a closely watched, complex case concerning whether the Maui Planning Commission has a right to stop Hale O Kaula Church from building a chapel. No ruling is expected until after Christmas." In earlier coverage, The Advertiser reported that "Maui suit turns into wide test of U.S. law." You can learn much, much more about this case here, via the RLUIPA.org Web site. According to today's newspaper article, the federal district judge presiding over the case said yesterday that "he expects the case to eventually end up at the U.S. Supreme Court."
Posted at 08:08 by Howard Bashman



"Pleas Made to Take Judge Off Bankruptcy Case": The New York Times today contains this report on an oral argument that occurred yesterday before the U.S. Court of Appeals for the Third Circuit. And The Newark Star-Ledger reports that "Appeals panel hears arguments on judge." I also attended yesterday's oral argument, and my account can be accessed here.
Posted at 08:04 by Howard Bashman



"Prosecutor's Body Released to Family; Agents Seeking Clues Interview Acquaintances, Track Final Movements": This article appears today in The Washington Post. And The Washington Times today reports that "Second person's blood found in prosecutor's car."
Posted at 08:00 by Howard Bashman



Friday, December 12, 2003
In Friday's newspapers: In The New York Times, Linda Greenhouse has a news analysis headlined "A Supreme Court Infused With Pragmatism." In related coverage, an article reports on "A New Battleground in Political Fund-Raising." In news from Virginia, "Shootings Upset Sniper Suspect, Jury Is Told." In news relating to the fight against terror, "Efforts to Fight Terror Financing Reported to Lag"; "Turmoil Poses Danger to Government Case on Detroit Terror Cell"; and "German Judge Frees Qaeda Suspect; Cites U.S. Secrecy." And in news from Florida, "6 Cubans Are Found Guilty in Hijacking Case."

The Los Angeles Times reports that "Impulse Debated in Sniper Case; A psychiatrist says Malvo was 'unable to resist' it. A prosecutor sees nothing impulsive in scouting out an assassination site." In news pertaining to the Ninth Circuit, "Court Blocks Sierra Logging Project; Appellate panel agrees with activists that U.S. overestimated number of dead trees after fire." An article reports that "Parents Who Feared Deportation Granted Temporary Reprieve; Lawmakers introduce legislation to try to keep family of gifted Bell Gardens girl together." In local news, "Trial of Man in INS Shredding Case Goes to Jury Today." In other news, "UC Berkeley Names Law School Dean." An article asks "Is It a Good Sign for Bryant? Some legal experts say voting indicates support in court of public opinion." In news from Florida, "6 Cubans Guilty of Air Piracy in Hijacking Case; U.S. jurors reject the defendants' claim that the action was a 'freedom flight.'" In news from Germany, "Hamburg Court Frees 9/11 Suspect; Judge rules the Al Qaeda-trained man was not a member of cell that plotted the attack. But Moroccan faces other charges." Religious officials and others respond to the question "Should states fund religious scholarships?" And an editorial is entitled "A 12-Year-Old Lifer?"

The Washington Post reports that "When DNA Meets Death Row, It's the System That's Tested." An article reports that "Mass. Senate to Ask Court If Civil Unions Pass Muster." In other news, "Redistricting Battle Moves To U.S. Court; GOP Plan for Texas Could Shift As Many as 7 Seats to Republicans." An article reports that "U.S. Cracks University Gun-Trafficking Ring; Ohio College Students Allegedly Sent Weapons to a Gang Based in New Jersey." In news from Europe, "Judge Frees 9/11 Suspect In Germany; Ruling Could Undo Only Conviction." Columnist E.J. Dionne Jr. has an essay entitled "Money Talks, and the Court Listens." And a letter to the editor appears under the heading "Abdurahman Alamoudi on the Charges He Faces."

In The Christian Science Monitor, Warren Richey reports that "Finance decision could put chill on the First Amendment." A related article is headlined "Politics without soft money: Supreme Court ruling on campaign finance leaves GOP with the edge in raising funds." And an editorial is entitled "Supreme Dream."

The Washington Times reports that "Greenpeace fights charges of conspiracy in Miami case." In other news, "Yee case on hold as military falters." An article reports that "Watchdog group ponders college suits." Jonah Goldberg has an op-ed entitled "Court endorses wrong kind of censorship," while Deborah Simmons has an op-ed entitled "The great and unholy divide."

The Boston Globe reports that "Patriot Act hearings sought by Democrats." An article reports that "An enraged Sampson confronted US marshals, court is told." In other local news, "Judge, lawyers criticized in reversal of conviction." And Spencer Overton has an op-ed entitled "Campaign reform's next step."
Posted at 23:05 by Howard Bashman



Scott Peterson gets to invoke his other Fifth Amendment rights: CNN.com reports late today that "Prosecutors in the murder case against Scott Peterson said Friday they want to buy his truck, which they contend he used to ferry the bodies of his wife and unborn son to San Francisco Bay, where they washed ashore in April."
Posted at 23:00 by Howard Bashman



"'Stakes are high' in lethal injection appeals; Court may see civil rights issue": The Houston Chronicle today contains this article. And a related graphic can be accessed here.
Posted at 22:58 by Howard Bashman



C-SPAN interviews Linda Greenhouse, who covers the U.S. Supreme Court for The New York Times: According to the description of this segment from this morning's "Washington Journal," "Linda Greenhouse, New York Times Supreme Court Correspondent, discusses the newspaper and his role at it." You can watch the program by clicking here (Real Player required).
Posted at 22:55 by Howard Bashman



"Judge's tactics leave him snared in tangled web of asbestos cases": This article concerning a pair of mandamus cases argued before the U.S. Court of Appeals for the Third Circuit this morning appeared in yesterday's edition of The Newark Star-Ledger. I was among the observers in a packed Third Circuit courtroom in Philadelphia this morning, and based on the oral argument it is impossible to predict how the three-judge panel will rule. This lack of a feeling of certainty that a ruling in favor of the parties seeking mandamus will ensue may augur good news for the parties opposing mandamus, given the especially rigorous showing necessary to prevail on a mandamus petition. The three judges assigned to decide the matter -- Circuit Judges Julio M. Fuentes and D. Brooks Smith and Senior Circuit Judge Leonard I. Garth -- were all most impressive in their questioning and grasp of the complicated issues that the cases appear to present. More information about the mandamus cases, including access to the parties' filings, is available on the Third Circuit's home page.
Posted at 22:25 by Howard Bashman



Available online at law.com: Marcia Coyle has an article headlined "Shifting Ground: A campaign ruling gives Congress great deference." And in other news, "N.Y. Court Bars Federal Suit by Admonished Justice; As in circuit's 'Spargo' ruling, judge says jurisdiction is lacking in state-only matter."
Posted at 22:23 by Howard Bashman



Woman fired for refusing to wear make-up has day in court before the Ninth Circuit: The Reno Gazette-Journal today contains an article headlined "Lawsuit about more than being fired."
Posted at 22:20 by Howard Bashman



In the December 22, 2003 issue of The New Republic: Jeffrey Rosen has an essay entitled "Immodest Proposal: Massachusetts Gets It Wrong On Gay Marriage." Cass R. Sunstein has an essay entitled "Federal Appeal: Massachusetts Gets It Right." And Richard A. Posner has a book review of "Same-Sex Marriage and the Constitution" by Evan Gerstmann.
Posted at 19:22 by Howard Bashman



"Senators Want Action on Gitmo Detainees": The Associated Press provides this report.
Posted at 17:40 by Howard Bashman



"In Defense (sort of) of Trial Lawyers; Their excuses are well known, their virtues less so." This article appears in the current issue of The Weekly Standard.
Posted at 17:36 by Howard Bashman



And speaking of the Harvard Law School: The Harvard Journal of Law and Technology has issued this announcement of my visit scheduled to occur one month from today.
Posted at 17:31 by Howard Bashman



Why pass muster when you can cut mustard? The Boston Herald today reports that "Prof says civil-union bid may cut mustard with SJC." The Prof in question is Laurence H. Tribe.
Posted at 17:31 by Howard Bashman



"Reviewing the Judges: What conservatives should learn from the campaign-finance decision." Ramesh Ponnuru has this essay today at National Review Online.
Posted at 17:26 by Howard Bashman



En banc Fifth Circuit rules that an allegation of malicious prosecution, standing alone, does not state a valid claim under the federal Civil Rights Act: The U.S. Court of Appeals for the Fifth Circuit posted online on Monday this en banc decision issued one week ago today.
Posted at 17:20 by Howard Bashman



"It is an obscure religion, but he didn't make it up." So writes Circuit Judge Richard A. Posner about the religion known as "Wotanism," which is the faith claimed by the pro se inmate in a suit filed against Wisconsin prison officials under the Religious Land Use and Institutionalized Persons Act. You can access here today's ruling from a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit overturning the dismissal of that suit.
Posted at 16:18 by Howard Bashman



And sometimes the directions fail to get you where you are hoping to go: Yesterday, a unanimous three-judge panel of the Superior Court of Pennsylvania ruled that a trial court erred when relying on MapQuest to determine whether the location where a defendant was arrested in possession of a controlled substance was within 1000 feet of a school zone. Notably, the court uses the trademark symbol everytime it mentions the MapQuest name. Apparently, after calling MapQuest unreliable, the court did not want to risk a trademark infringement suit. You can access the opinion at this link.
Posted at 14:50 by Howard Bashman



Too close to call: In the past I have observed that one advantage of selecting appellate judges via elections is that it avoids the delay and uncertainty associated with filibusters. But, on rare occasion, the elective system itself can involve delay and uncertainty.

Earlier this week, The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, reported that the race to fill the third and final vacancy on the Superior Court of Pennsylvania, an intermediate appellate court of general jurisdiction, remained too close to call. According to the article, Republican candidate Susan Gantman currently holds slightly more than a 300-vote lead over Democratic candidate John Driscoll. You can access another, perhaps not as up to date, vote tally here, from the Secretary of State of Pennsylvania.

Meanwhile, in other judicial election-related news from Pennsylvania, today The Pittsburgh Post-Gazette contains an article headlined "Baer writes off fellow judge; Don't come to my Supreme Court installation, he tells Allen in letter." The article begins, "It wasn't just that Max Baer didn't invite fellow judge Cheryl Allen to his swearing-in as a state Supreme Court justice. Baer took that extra step of informing her she wasn't welcome."
Posted at 14:44 by Howard Bashman



"Struggle by Slain Prosecutor Suggested": The Associated Press offers this report.
Posted at 13:01 by Howard Bashman



"Iowa judge OKs lesbian divorce; But state doesn't recognize gay marriage": The Des Moines Register today contains this report, which explains that the judge did not appreciate that he was dissolving a relationship between two women when he signed the order. The Sioux City Journal reported last weekend that "Divorce granted to lesbian couple doesn't mean Iowa accepts union." And today The Associated Press reports that "Iowa Judge Grants Lesbian Divorce."

Meanwhile, in news from overseas, The Herald (UK) reported on Wednesday that "Transsexuals want right to stay married."
Posted at 12:32 by Howard Bashman



"Montana Firm Wins Castration Device Suit": The Associated Press provides this report.
Posted at 12:01 by Howard Bashman



Eighth Circuit rules that ex-Beatle George Harrison was willfully disobedient in failing to appear for two depositions based on assertions of poor health: As a result, the appellate court upheld a bankruptcy court's dismissal of a multi-million dollar claim being pursued by Harrison's estate in the bankruptcy of Harrison's former business manager. You can access today's ruling at this link.
Posted at 11:53 by Howard Bashman



The Lancaster Intelligencer Journal is reporting: Today's newspaper contains articles headlined "Family asks for privacy: Investigators into Luna's killing continue to pore over evidence" and "Prosecutor's slaying haunts Brecknock Twp. police chief: Has little input in investigation of municipality's first homicide since 1950s."
Posted at 11:39 by Howard Bashman



D.C. Circuit holds that woman who agrees to fly F-14 aircraft in combat for the Navy becomes a limited-purpose public figure under the law of defamation: You can access today's interesting ruling by a unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 11:33 by Howard Bashman



"Federal judge offered Clemons help in phone calls": The Columbia (Mo.) Daily Tribune contained an article yesterday that begins:
During his incarceration at Boone County Jail, Ricky Clemons spoke frequently with the wife of University of Missouri President Elson Floyd, but she wasn't the only powerful woman he consulted.

Clemons made several of his jailhouse phone calls to Johnnie Rawlinson, a federal judge with the U.S. Ninth Circuit Court of Appeals and a woman that Clemons refers to as his aunt.
An article published yesterday in the Daily Tribune under the headline "Clemons changes tune as case unfolds" and an article published Wednesday under the headline "Tapes portray Hearnes as dysfunctional home; Wives of MU officials criticize coaches during jail conversations with Clemons" also mention Circuit Judge Rawlinson.

Other more general coverage of the Clemons matter is available today via The St. Louis Post-Dispatch (see here, here, and here, for example) and ESPN.com (see here and here, for example).
Posted at 10:58 by Howard Bashman



On the agenda: The U.S. Court of Appeals for the Third Circuit is expected to begin hearing oral argument this morning at 8:45 a.m. in Philadelphia in these mandamus cases. You can learn much more about the cases via links provided on the Third Circuit's home page. I hope to be able to attend the argument and, thereafter, provide a report here.
Posted at 06:44 by Howard Bashman



"Blood of 2nd person in car; Probe of Luna's death also finds that he bought gas for two vehicles in Pa.; 'He was just very calm'; Officials are retracing prosecutor's steps": This article appears today in The Baltimore Sun. And The Associated Press reports that "Prosecutor's Death 'Shocking' to Family."
Posted at 06:33 by Howard Bashman



Thursday, December 11, 2003
In Thursday's newspapers: In The Christian Science Monitor, Warren Richey reports that "Court upholds 'soft money' ban; Divided justices Wednesday affirmed key parts of campaign-finance law, the most important such decision in nearly 30 years."

The Boston Globe reports that "Senate eyes civil union bill for SJC; Would ask justices for 'clarification.'" In other news, "Harvard professor to head Calif. law school; Boalt's new dean was Clinton advisor." And an article reports that "Doctor says killer couldn't stop himself; Sampson defense calls psychiatrist."

The Washington Times reports that "Psychiatrists tell jury Malvo legally insane." In other news from Virginia, "Bill would oppose same-sex unions." An article reports that "West not to face court-martial." And an op-ed by Jacob Sullum is entitled "Hearing impairment."

The Washington Post reports that "Insanity Defense Asks Jurors to Judge Person Rather Than Facts." In other news, "Judge in Terror Trial Orders Hearing on Prosecutors." And in news from Virginia, "County Eases Rules for Adult Shops in Light of Lawsuit; Provisions Changed to Pass Legal Muster."

The Los Angeles Times contains an article headlined "Democratic Volley in Texas Mapping War; Court papers claim GOP aides in Washington led vote to redraw districts. Trial of case starts today." An article reports that "Luster Taking Case to U.S. Supreme Court; The convicted rapist's lawyer wants his client's appeal rights, forfeited by a state court after he fled to Mexico during trial, reinstated." An article is headlined "Emerging From a Life in Shadow: Settlement of two suits will allow 100,000 illegal immigrants to apply for permanent residence." And in other news, "'Lackawanna Six' Figure Sentenced; The U.S.-born man accused of leading the others to an Al Qaeda camp gets 10 years."

The New York Times reports that "Daimler Leader Explains Why He Called Deal Merger of Equals." In other news, "Judge in Clarett Case Will Get N.F.L. Education." In news from the war on terror, "Jailed Man Accused of Having Ties to Al Qaeda" and "Judge Questions Sentence in Al Qaeda Case." In local news, "No Jail Time for 9/11 Photographer in Securities Fraud Case." An article reports that "Six Cubans Convicted in Plane Hijacking." In local news, "New York Regents to Propose Overhaul in School Financing" and "Facing Execution, Convict Refuses Help." And an article is headlined "Hold It Right There, and Drop That Camera."

Finally, USA Today reports that "Terror suspect's attorney lands in the spotlight; Donna Newman says constitutional rights at stake in 'dirty bomb' case." And an article is headlined "Man jailed in Minnesota is suspected of ties to al-Qaeda; Material witness may know terror suspect."
Posted at 23:00 by Howard Bashman



And in other news of note from NPR: National Public Radio today offered the following audio reports (Real Player required): "Australian Guantanamo Detainee Granted Access to Lawyer" and "Massachusetts Seeks Compromise on Gay Marriage."
Posted at 22:50 by Howard Bashman



BCRA, the day after: Marty of "SCOTUSblog," who has been providing insightful coverage of the challenge to the constitutionality of the McCain-Feingold campaign finance law for many months now, offers detailed coverage of yesterday's ruling. You can access his earliest post here and then scroll up the page for the rest. Gregg Easterbrook writes today that "Campaign finance reform has just been used by the Supreme Court for a significant erosion of free speech."

And National Public Radio today provided the following reports (for which Real Player is required): "High Court's Campaign Finance Ruling Explained" (featuring Nina Totenberg); "Ruling Opens New Era in Campaign Finance Tactics"; "Expert: McCain-Feingold Shows Court's Pragmatism" (featuring Law Professor Jeffrey Rosen); and "Political Operatives Adjust to Campaign Finance Rules."
Posted at 22:40 by Howard Bashman



In the December 15, 2003 issues of Newsweek and Time: The cover of Newsweek bears the title "Lawsuit Hell." The lead article is headlined "Civil Wars: Doctors. Teachers. Coaches. Ministers. They all share a common fear: being sued on the job. Our litigation nation--and a plan to fix it." And in related coverage: "City of Deep Pockets: In Chicago, Mayor Daley reels from a raft of suits, but won't hesitate to use the law when he needs it"; "Hard Pill to Swallow: Now that insurance for delivering babies costs so much, the doctor can't practice what he loves most"; and "Learn the Hard Way: Didn't make the cheerleading squad? Might as well take your elementary-school principal to court." Providing a different perspective, U.S. Senator John Edwards (D-NC) has an essay entitled "Juries: 'Democracy in Action'; The civil jury system, John Edwards argues, is good for America. He ought to know. A veteran trial lawyer on a case that confirmed his belief in the true meaning of justice." And in other news, "King of the Tabloid Case: Mark Geragos is juggling two of the most high-profile clients in the country. To hear him tell it: No sweat."

Meanwhile, Time contains an article headlined "The Case He Left Behind: The brutal murder of prosecutor Jonathan Luna is as puzzling as any he pursued in his too-brief career."
Posted at 22:30 by Howard Bashman



"Court won't block new congressional map now": The Houston Chronicle provided this news update this afternoon.
Posted at 22:22 by Howard Bashman



"Urine trouble," federal government tells mischievous lawyer: The San Antonio Express-News reported on Monday that "Lawyer's act of revenge draws government's ire." And The Associated Press reported that "Lawyer in trouble for taking revenge with urine."
Posted at 22:10 by Howard Bashman



Tonight's Ten Commandments news: Friday's edition of The Atlanta Journal-Constitution will contain an article headlined "Judge warns those who make threats over Commandments." The article begins, "A federal judge sent a message Thursday to anyone who tries to intimidate those challenging public Ten Commandments displays: Do it and you can be sent to prison." In other news from Georgia, The Associated Press reports that "Barrow County fights Ten Commandments lawsuit."

And in news from Alabama, The AP reports that "Moore has until Jan. 8 to file full appeal."
Posted at 21:55 by Howard Bashman



Fourth Circuit rules that Religious Land Use and Institutionalized Persons Act of 2000 is kosher: On Monday, a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit overturned a federal trial court's ruling that had declared a portion of RLUIPA unconstitutional. You can access the ruling at this link.

The Roanoke Times reported on Tuesday that "Appeals court backs inmate's religion rights; A Richmond inmate challenged the Virginia Department of Corrections for denying him a kosher diet." And The Associated Press offered an article headlined "Court upholds law protecting inmates' religious freedom."

You can access my earlier coverage of the trial court's ruling (accessible here in a very slow loading PDF file) here and here. And the blog "Begging The Question" reports on the Fourth Circuit's decision in a post entitled "Fourth Circuit Says Ray-Loopa Is Soopa-Doopa."
Posted at 17:14 by Howard Bashman



"Court of Appeals Honors Judge Joseph T. Sneed": The U.S. Court of Appeals for the Ninth Circuit issued this press release on Tuesday.
Posted at 17:14 by Howard Bashman



"2nd Circuit Nominee Is Vermont U.S. Attorney": The Associated Press reported here yesterday that "Vermont's top federal prosecutor, Peter W. Hall, has been nominated by President Bush to become a federal judge on the U.S. 2nd Circuit Court of Appeals." You can access Tuesday's official White House announcement release here. Vermont's Governor issued this press release. Back in September 2001, U.S. Senator Patrick J. Leahy (D-VT) issued a press release entitled "Senate Confirms Peter Hall as Vermont's U.S. Attorney."
Posted at 16:52 by Howard Bashman



"Black to lead UC law school; Harvard professor advised Clinton on affirmative action": The San Francisco Chronicle today reports here that "Christopher Edley, a Harvard Law School professor who crafted former President Bill Clinton's 'mend it, don't end it' policy on affirmative action, has been named as the new dean of the prestigious Boalt Hall School of Law at UC Berkeley, university officials said Wednesday night." The law school has issued a press release stating that "Edley ... will be the first African American dean to lead a top-ranked U.S. law school...." You can access Edley's biography here.
Posted at 16:15 by Howard Bashman



"Ruling Voids Political Leeway Given to Judges": Yesterday, The New York Times reported here that "A federal appeals court in Manhattan overturned a decision yesterday that had allowed judges in New York State to attend campaign events and to endorse candidates." And The Associated Press reported that "Fed Court Rejects Political Ban Case." You can access Tuesday's ruling of the U.S. Court of Appeals for the Second Circuit in Spargo v. New York State Commission on Judicial Conduct at this link.
Posted at 16:02 by Howard Bashman



"Mass. Senate Seeks Civil Union Opinion": The Associated Press is reports here that "The Massachusetts Senate voted Thursday to ask the state's highest court if Vermont-style civil unions would satisfy the court's recent decision legalizing gay marriage."
Posted at 14:57 by Howard Bashman



"Bureaucratization of the law such that the lawyers can turn over to nonlawyers the lawyer's knowledge of the law is not acceptable for our profession." A lawyer shouldn't rely on a non-lawyer-assistant's incorrect understanding of the deadline for a timely appeal and later have the failure to appeal in time deemed "excusable neglect," this opinion that a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued yesterday holds.
Posted at 14:39 by Howard Bashman



When "life" really, really, really means "life": Yesterday Florida's Fourth District Court of Appeal issued a decision that overturned a life sentence imposed on a boy who, at the age of twelve, killed a six-year-old girl. You can access the ruling at this link.

In press coverage of yesterday's ruling, The New York Times reports that "Youngster Given Life Term for Killing Gets New Trial." The Washington Post reports that "Killer of 6-Year-Old To Get a New Trial; Court Cites Lack Of Fitness Hearing." The Los Angeles Times reports "New Trial for Boy Convicted of Murder."

The Miami Herald reports that "Tate wins new trial in murder; An appeals court grants a new trial to Lionel Tate, 16, who was sentenced in 2001 to life in prison for killing a 6-year-old girl." The South Florida Sun-Sentinel reports that "Appeals court orders new trial for teen convicted in wrestling death case." And The St. Petersburg Times reports that "After life sentence, a new trial; Two years into Lionel Tate's prison term, a court says he may not have grasped what was happening."

CNN.com is reporting that "Teen serving life jubilant over retrial; Lionel Tate's conviction for killing girl when he was 12 overturned." And today NPR's "Morning Edition" contained an audio report (Real Player required) entitled "Court Overturns Boy's Murder Conviction."
Posted at 13:00 by Howard Bashman



"Do as I say...." The Fort Worth Star-Telegram today reports, in an article headlined "Jurors convict pageant winner," that "A former Miss Teen Texas whose platform was against underage drinking was convicted Wednesday of public intoxication in Arlington municipal court." In fairness, the article reports that the defendant still proclaims her innocence.
Posted at 12:52 by Howard Bashman



"Moussaoui May Deserve To Die, But Not Without Fair Trial": Stuart Taylor Jr. has this essay in National Journal this week.
Posted at 11:16 by Howard Bashman



"Some say the world will end in fire, Some say in ice." So begins the dissenting opinion -- perhaps his first -- that Circuit Judge Jeffrey S. Sutton issued in a very interesting criminal appeal implicating the Commerce Clause that a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit decided yesterday. The majority opinion, written by Circuit Judge Karen Nelson Moore and in which Circuit Judge Martha Craig Daughtrey joined, begins:
Local and state government institutions provide a wide variety of services ranging from transportation to economic development, which can produce ripples in the broader stream of interstate commerce to varying degrees. The general question presented by the relatively bizarre factual background of this case is whether or not a core function of municipal government -- the provision of firefighting services -- impacts interstate commerce such that an individual can be indicted under a federal anti-arson statute for destroying a fire station. The more precise question, upon which we dwell, is whether the Henning, Tennessee Fire Station was used in an activity affecting interstate commerce such that the person charged with setting it ablaze can be indicted under 18 U.S.C. § 844(i). We hold that this particular fire station was used in an activity affecting interstate commerce and accordingly REVERSE the judgment of the district court dismissing the indictment and REMAND for further proceedings consistent with this opinion.
Judge Sutton's dissenting opinion begins:
"Some say the world will end in fire, Some say in ice." Robert Frost, Fire and Ice, in The Poetry of Robert Frost 220 (Edward Connery Lathem ed., 2002). From what the 970 residents of Henning, Tennessee have seen of John Laton, their fire chief, one could certainly understand why they would "hold with those who favor fire." Id.

Yet the incompatibility of this crime with this alleged criminal merely serves as a prelude to other oddities of this case. Consider what happened after the fire chief set fire to the Henning Fire Station. While arson is a state-law felony in Tennessee, as in all States, neither the local prosecutors nor the Attorney General of Tennessee indicted this defendant. While the federal crime of arson applies just to property "used in" interstate commerce, 18 U.S.C. § 844(i), the National Government indicted this defendant for destroying a building that has a uniquely public, non-commercial and sovereign purpose. And while the United States acknowledged at oral argument that it was not aware of a single other prosecution under § 844(i) for the arson of a local public building, the United States Attorney for the Western District of Tennessee invoked this statute in response to the destruction of a rural fire department by a local fire chief.

This case, however, is not just unusual as a matter of fact, law, or history; it is also unusual as a matter of precedent. Three Terms ago, in a 9-0 decision, the United States Supreme Court held that § 844(i) does not apply to the burning of residential homes. Jones v. United States, 529 U.S. 848 (2000). In doing so, the Court made clear that the provision applies only to the destruction of buildings with an "active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce." Id. at 855. Fire stations are no more "active[ly]" used for "commercial purposes" than residential homes are. In point of fact, this would seem to be the easier case--as firefighting represents the epitome of an unbargaining public service and the arsonist in this instance represents the epitome of a local public official. To conclude otherwise is to embrace the view that even the most attenuated connections to commerce will suffice in prosecuting individuals under this statute, a perspective that by my reading of Jones is no longer an option for the lower courts. For these reasons and those elaborated below, I would affirm the judgment of the district court dismissing this case.
You can access the entire decision here (HTML) and here (PDF).
Posted at 11:00 by Howard Bashman



While I was away: The Philadelphia Inquirer has begun to cover the investigation into the death of the federal prosecutor from Baltimore whose body was discovered in Lancaster, Pennsylvania. In addition to the article from today's newspaper that I earlier linked to here, yesterday The Inquirer reported that "Probe in death of prosecutor returns to Montco area." On Tuesday, that newspaper reported that "Prosecutor's route into Pa. is probed." On Sunday, "Motive unclear in prosecutor's slaying; Investigators won't comment on reports that a Baltimore lawyer found dead in Pa, may have been killed over a personal matter." And on Saturday, "'Brutalized' prosecutor drowned; He was stabbed 36 times. The wounds suggest torture, the coroner said."
Posted at 10:55 by Howard Bashman



Referring to the judge by a fowl name: Back on September 26, 2002, I had a post reporting on a passage found in an opinion issued that day by Seventh Circuit Judge Richard A. Posner. For some reason, the headline to this article published today in The Chicago Sun-Times brings to mind that passage from Judge Posner's opinion.
Posted at 10:40 by Howard Bashman



"A Most Unusual Lawyer: A homeless man with psychological scars is challenging Texas over a Ten Commandments statue. The Supreme Court may take his case." On Tuesday, The Los Angeles Times included this lengthy and interesting front page article. Regrettably (repeat after me, everyone) the article contains no mention of the pagan panther.
Posted at 10:38 by Howard Bashman



"Reformers, Cheer While You Can; The high court issues a key ruling on campaign finance, but warning signs are in sight." Election Law Professor Rick Hasen, whose blog you can and should access here, has this op-ed today in The Los Angeles Times. I admire anyone who has read the entire decision at this point. Once I get into work today, I'm planning to print-out the ruling, carry it around with me for a while, and see what if anything happens.
Posted at 10:35 by Howard Bashman



In redistricting news relating to Texas and Pennsylvania: The Austin American-Statesman reports that "Redistricting case opens today; Democrats' lawyers release documents to try to prove the process was illegally partisan." The Dallas Morning News reports that "Texas redistricting challenge goes to court today; Texans in poll split on special sessions, opposed to remap fight." The Austin Chronicle has an article headlined "Here Come the Judges." The Houston Chronicle reports that "High court's remap case crucial to Texas; Justices weigh Pennsylvania gerrymandering" and that "Justices uphold ban on 'soft money' donations; Court cites corrupting influence."

In other coverage of yesterday's U.S. Supreme Court oral argument in Vieth v. Jubelirer, Shannon P. Duffy of The Legal Intelligencer reports that "Pennsylvania Redistricting Case Argued at U.S. Supreme Court." The Associated Press reports that "Justices to rule on remap politics; Redrawn plan favors GOP, plaintiffs say." Stephen Henderson of Knight Ridder Newspapers reports that "Justices contemplate limits of gerrymandering." The Pittsburgh Post-Gazette reports that "Justices treading warily in Pennsylvania case; Democrats argue redistricting unfair." The Morning Call of Allentown, Pennsylvania reports that "Supreme Court debates state's redistricting; Justices appear skeptical about interfering with it." The Dallas Morning News reports that "Justices take up remap issue; Redistricting by party lines in Pennsylvania has Texas implications." And The Independent (UK) has an article headlined "The court case that could reshape US democracy."
Posted at 10:12 by Howard Bashman



"Lethal injection case halts state execution": The Houston Chronicle today contains this report. And David Pasztor of The Austin American-Statesman reports that "Texas death penalty in limbo; U.S. Supreme Court justice stays an execution Wednesday but doesn't say why."
Posted at 10:01 by Howard Bashman



Why I really enjoyed my visit to St. Croix, USVI: Before Sunday, I had the pleasure of vacationing on St. Thomas (where friends of my wife's parents owned a home that they would allow friends to occupy while they, the owners, were off-island) and on St. John (where a former law partner of mine had built a lovely vacation home using, in part, the proceeds of a contingent fee representation on which I worked at the appellate stages). But I had never set foot on St. Croix. (More general information about the U.S. Virgin Islands can be accessed here, from the good folks at the Central Intelligence Agency, and here, from the USVI Department of Tourism.)

St. Croix is the largest of the three major islands, although it feels much less built-up and busy than St. Thomas. When I arrived early on Sunday afternoon, the weather was quite cloudy and overcast and, of course, hot. Apparently the weather wasn't much better on Saturday, which was when I was originally scheduled to have arrived. I had arranged to rent a car, because the hotel where I was staying was quite a distance away from town and the federal courthouse where my oral argument before the U.S. Court of Appeals for the Third Circuit was scheduled to take place on Tuesday. I had driven previously on St. Thomas and St. John and thus was used to driving on the left-hand-side of the road a car whose steering wheel is also on the left. (It brought a smile to my face when I saw a sign on St. Croix's major, two-lane highway stating "Keep left, Pass right.") As on St. Thomas, most of the roads on St. Croix are one lane in each direction and bring to mind a slalom videogame given the abundance of twists, turns, and cutbacks. At night, unfamiliar roads can be most challenging, because streetlights are rare away from town.

I navigated my way to the Carambola Beach Resort without incident only to learn, as I previously noted here, that Internet access was next to impossible. My cell phone, serviced by AT&T, also wasn't able to get reception there. My SkyTel Blackberry, however, worked if I held it up toward the roof of my hotel room. The hotel was just fine and right on the beach. Later I learned that the out-of-town attorneys for the opposing party in my Third Circuit appeal, the United States, were also staying at Carambola.

On Sunday night I decided to venture out for dinner to St. Croix's largest town, Christiansted. I had a very nice dinner at RumRunners, which sits right on the water. The frozen key lime pie dessert is to die for. Having my first drive to and from town occur at night probably wasn't the best thing to do, but I ended up finding my way there and home without major incident.

Monday was another cloudy and overcast day, which was fine because I was engaged in final preparations for my oral argument the next morning. For lunch, I decided to take a large volume of the Appendix on appeal to Cheeseburgers in Paradise, which (as this map confirms) is located quite a distance from where I was staying. I was the only patron of the restaurant who appeared to have an appellate appendix in tow. For dinner, I decided to stay close to where my hotel was located, but the choice of The Waves at Cane Bay proved inspired, as I enjoyed a delicious pasta dish made with local lobster.

On Tuesday morning, I awoke early to the sun shining through the slats of the door to the porch. The USVI is in the Atlantic time zone, meaning that during this time of year it is one hour ahead of the east coast of the USA. I figured it was just my luck that the morning I had to be in court turned out to be sunny, and I feared that as soon as I left the courthouse the sun would return behind the clouds for the remainder of my stay. The federal court building on St. Croix is located, from where I was staying, on the road into Christiansted. When I called the courthouse on Monday morning to confirm directions, I was first told that it was far too complicated to explain, but the courthouse was located across from McDonald's and Subway near a shopping center. Fortunately I had driven right past the McDonald's and Subway on my way to dinner on Sunday night and was able to confirm the precise location of the courthouse on my way to lunch on Monday. The courthouse itself is a very nice structure (see a photo here), and the oral argument was on the second floor in courtroom two. The courthouse also offers free parking for visitors.

The Third Circuit panel hearing cases in St. Croix this week consisted of Circuit Judge Richard L. Nygaard and Senior Circuit Judges Edward R. Becker and Walter K. Stapleton. I had learned on Monday that Judge Becker, perhaps the court's most active questioner, had remained in Philadelphia due to a slight illness and was participating via telephone. My case was second on the list, and the courtroom was as nice inside as the courthouse looked from the outside. Before the oral argument began, I had the pleasure of meeting District Judge Thomas K. Moore, whose order my client was appealing, and his law clerk, both of whom turned out to be readers of this very blog. The oral argument went well, and I am pleased to report that Judge Becker by telephone is no more deterred by the red light indicating that an advocate's time at the lectern has expired than is Judge Becker in person.

I was also quite pleased that the sun remained out for the rest of the day Tuesday, allowing me to visit the beach later in the afternoon. On Tuesday night, I had the pleasure of dining at Kendrick's in Christiansted, which also was wonderful. Because my cell phone works from in town, I was able to check my voice mail and learn that a lawyer from out of state wishes to retain me to work on a new Third Circuit appeal at the recommendation of a well-known Pennsylvania-based appellate lawyer whose law firm had a conflict that prevented its handling of the matter.

My choice of a good restaurant was confirmed later in my visit when the two Third Circuit judges showed up for dinner while I was in the middle of my meal. On my way out of the restaurant -- which is small enough that all guests can see one another -- I stopped at their table to wish them a good dinner and a safe trip home, and to thank them for allowing me finally to visit St. Croix, because I never had the opportunity when I was clerking for a Third Circuit judge. They explained that they themselves had been reminiscing earlier in their visit about a trip that they made some thirteen years ago to St. Croix with the judge for whom I had clerked and that the sitting probably had occurred during my clerkship. Indeed it did.

Yesterday afternoon after 4 p.m. was the scheduled departure time for my flight back to the mainland USA. And it was another sunny day in the USVI, allowing me to spend a bit of time on the beach before heading to the airport. I took to the beach the opposing party's opening brief in the appeal I am due to argue in Philadelphia before a three-judge Third Circuit panel in January 2004. I may have temporarily lost the usual pallid appearance of an appellate lawyer, but I promise it will be returning soon. At the airport, I cleared the immigration checkpoint in under one minute. Yes, the officer would have preferred a passport or a birth certificate, but neither is absolutely necessary. One of the Third Circuit judges was on the plane back to Miami, and one of the lawyers for the U.S. government and his spouse were also on board, sitting just across the aisle from me. I told that lawyer that I had been denied travel on Saturday due to my not having either a passport or birth certificate as proof of citizenship, and the lawyer told me that he has traveled repeatedly to the USVI (including on this very trip) without either a passport or birth certificate and was never denied transportation down and never had an incident passing through the immigration checkpoint on the return trip home.

Last night was warm and rainy in Philadelphia, and flooding and ground fog were feared due to melt-off from this past weekend's snowstorm. My departure from Miami was delayed for an hour, but we managed to arrive in Philadelphia almost on time due to a fortunately-timed break in the weather. Two final things about St. Croix. Gasoline prices were surprisingly low -- $1.32 for regular and $1.42 for premium, perhaps due to the presence of one of North America's largest oil refineries on the island. And the FM radio station at 104.3, known as "The Buzz," is quite good. In short, I'd return in an instant.
Posted at 08:50 by Howard Bashman



"Senate Democrats pledge to fight nomination of Allen; Bush to decide whether to resubmit Virginian for 4th Circuit judgeship": The Baltimore Sun today contains this article. And The Richmond Times-Dispatch today reports that "Allen nomination not carried over; It is returned to White House as Democrats resist putting Virginian on federal court."
Posted at 06:53 by Howard Bashman



"Supreme Court Halts Texas Execution": The Associated Press provides this report this morning.
Posted at 06:47 by Howard Bashman



"Moore appeals removal, asks Houston not to hear his case": The Birmingham News today contains this report. The Montgomery Advertiser reports that "Moore fights ouster decision." The Associated Press provides this coverage. And Reuters reports that "Ten Commandments judge files appeal to win back job."
Posted at 06:40 by Howard Bashman



"Luna parents wait, hope for word on son's killer; Slain prosecutor described as devoted to his family": This article appears in today's edition of The Baltimore Sun. The Philadelphia Inquirer today reports that "In Luna case, 2d car may have role; Tapes, receipts suggest the Md. prosecutor was traveling with someone just before he was killed." The New York Post reports that "Luna gassed up two cars before death." And The Associated Press reports that "Electronic Toll Records Help Solve Crime."
Posted at 06:35 by Howard Bashman



In other coverage of yesterday's campaign finance ruling from the U.S. Supreme Court: In The Boston Globe, Lyle Denniston reports that "Campaign finance law is upheld; Supreme Court says strict rules are justified." In related news coverage, "For advocates, a long journey"; "A money culture adapts and carries on"; and "Outcome stuns NRA, ACLU." And an editorial is entitled "A victory for all voters."

In The Los Angeles Times, David G. Savage reports that "High Court Upholds Most of Campaign Finance Law; The majority rebuffs the free-speech argument challenging the ban on 'soft money' and bogus issue ads mandated by McCain-Feingold." A news analysis is headlined "Big Money's Spigot Will Stay Open." And an editorial is entitled "Big Money Loses One."

Jan Crawford Greenburg of The Chicago Tribune reports that "Campaign reform law upheld; Court narrowly backs funding limits." And in related coverage, "Ruling favors GOP, independent groups; Democrats' access to big cash affected."

USA Today reports that "Political finance limits survive High court allows ban on 'soft money.'" In related news, "Campaign ruling alters political landscape; Opponents: 'Soft money' will remain." An item addresses "Who wins and loses." An editorial is entitled "Court ruling strikes blow against political corruption." Antonio Gonzalez and Stephanie Moore have an op-ed entitled "Wealthy campaign donors stifle minority voices," while John Samples has an op-ed entitled "Ruling hurts citizens."

The Washington Times reports that "Court upholds campaign-finance law." The San Francisco Chronicle reports that "High court upholds limit on campaign financing; 2002 measure bars use of 'soft money.'" The Baltimore Sun reports that "'Soft money' ban is upheld; Supreme Court rules, 5-4, that Congress can limit political donations; Restrictions on ads affirmed." The Pittsburgh Post-Gazette reports that "Supreme Court OKs soft money ban; In a 5-4 vote, justices uphold reform law prohibiting political parties from raising unlimited funds from donors." And John Fund, writing at OpinionJournal, has an essay entitled "The Limits of 'Growth'; Justice O'Connor becomes a full-fledged judicial activist."
Posted at 06:03 by Howard Bashman



"Senate confirms Fisher for judgeship; The Pa. attorney general will join the U.S. Court of Appeals for the Third Circuit, based in Phila." Yesterday The Associated Press issued this report. Once he assumes office, Judge Fisher will be entitled to serve for life on a federal appellate court on which one of the other judges in active service is the spouse of the person who defeated him in his quest to become Governor of Pennsylvania.
Posted at 01:11 by Howard Bashman



Investigation into the death of federal prosecutor from Baltimore continues: The Lancaster New Era on Wednesday contained an article headlined "Did Luna rendezvous with his attackers?" The Lancaster Intelligencer Journal reported that "Prosecutor's personal life examined." The Baltimore Sun contained an article headlined "Missing money noted in probe; Cash evidence in '02 case Luna handled vanished; Prosecutor's death investigated; FBI agents examining work files of lawyer, 38." The Associated Press reported that "FBI Agent Love Leads Slain Prosecutor Case." CNN.com reported that "Slain prosecutor alone at ATM before his death." And WBAL had a report entitled "Source: Luna Discusses Marital Problems Online; Luna Concerned Over Repaying Student Loans, Sources Say."

On Tuesday, The Baltimore Sun reported that "Slain prosecutor's relationships with women examined; Investigation focusing on personal life of Luna; Possible financial, work troubles." The Washington Post reported that "Sightings Boost Theory Luna Drove Alone to Pa.; Authorities Track Movements of Slain Prosecutor." And The Lancaster Intelligencer Journal reported that "Father of slain prosecutor critical of probe."

On Monday, The Baltimore Sun reported that "Decision in slaying probe delayed; Investigators in Luna case want to gather more facts before declaring prosecution venue."

And on Sunday, The Baltimore Sun reported that "Police widen slaying probe; Information on friends of prosecutor Luna sought; 'Pursuing many different leads'; Near crime scene, agents searching for witnesses."
Posted at 01:00 by Howard Bashman



Did someone say BCRA? While I was applying my suntan lotion yesterday morning in advance of my pre-flight home visit to the beach -- which was no more than thirty paces from my hotel villa -- CNN reported that the U.S. Supreme Court had announced its much-anticipated campaign finance decision on the legality of the McCain Feingold law.

The ruling -- all opinions plus the Court-issued syllabus -- checks in at nearly 300 pages. There is already discussion about whether the decision is the longest that the Court has ever issued. So long as it isn't the most boring, I won't complain.

Election law blogger Rick Hasen provides extensive coverage. His earliest post on the ruling can be found here. Begin there and then browse through the more recent postings.

In major news coverage of today's ruling, Anne Gearan of The Associated Press reports that "Key Parts of Campaign Finance Law Upheld." law.com's Tony Mauro reports that "High Court Hands Victory to Campaign Finance Reform Advocates." The Knight Ridder News Service reports that "Supreme Court upholds campaign finance law." NPR's Nina Totenberg had this report (Real Player required) last evening on "All Things Considered." And in other coverage from "All Things Considered," "Sponsor Applauds Court Campaign Ruling"; "Campaign Finance Plaintiffs' Attorney Sees Partial Victory"; and "Court Decision Reshapes Campaign Law." On the PBS program "NewsHour with Jim Lehrer," Jan Crawford Greenburg of The Chicago Tribune discussed the ruling. You can access the transcript here and the audio here (Real Audio required).

In Thursday's issue of The New York Times, Linda Greenhouse reports that "Justices, in a 5-to-4 Decision, Back Campaign Finance Law." A news analysis is headlined "Court Ruling Affirms New Landscape of Campaign Finance." You can access here a related chronology. And an editorial is entitled "A Campaign Finance Triumph."

In Thursday's issue of The Washington Post, Charles Lane reports that "Justices Uphold Campaign Finance Law; Court Endorses 'Soft Money' Ban, Rejecting Free-Speech Concerns." A news analysis is headlined "McCain-Feingold Ruling Angers Activists on Both Left and Right." In other coverage, "McCain, Feingold & Co. Laugh Last; Effort to Avoid Legal Pitfalls Pays Off for Campaign Finance Crusaders." An article reports that "Fundraising Specialists, Independent Groups Gain." And an editorial is entitled "Upheld."
Posted at 00:21 by Howard Bashman



Greetings from the suburbs of Philadelphia, Pennsylvania: Just arrived home moments ago and am pleased to report that my trip to St. Croix was fantastic. Thanks to the good folks at American Airlines for transporting me safely both ways -- albeit a day late heading out. I'll have more to say about my trip later, but for now simply allow me to confirm that neither a passport nor a birth certificate is required for a U.S. citizen to regain admission to the mainland USA. If you doubt that, allow me to offer myself as Exhibit A.
Posted at 00:15 by Howard Bashman



Sunday, December 07, 2003
Greetings from St. Croix, USVI: The very good news is that I arrived in St. Croix earlier today, and the weather is quite warm here (it was 82 degrees outside when my plane landed). The sad news is that Internet access is next to impossible from my hotel. As a result, this blog in all likelihood won't be updated next until the morning of Thursday, December 11, 2003. See you then.
Posted at 19:41 by Howard Bashman



Saturday, December 06, 2003
"Prosecutor's killing was 'personal'? Sources: It had nothing to do with federal attorney's Maryland drug case." This article will appear in tomorrow's issue of The Lancaster Sunday News.
Posted at 23:58 by Howard Bashman



"Brandeis's Views on States' Rights, and Ice-Making, Have New Relevance": Adam Cohen has this "Editorial Observer" column in Sunday's issue of The New York Times.
Posted at 22:58 by Howard Bashman



"Prosecutor's Personal Life Probed; Slaying Investigation Turns to Previous Trips to Pennsylvania": This article will appear in Sunday's edition of The Washington Post.
Posted at 22:55 by Howard Bashman



Today's Ten Commandments news: The Associated Press reports here from Cincinnati on an oral argument involving the Ten Commandments that the U.S. Court of Appeals for the Sixth Circuit heard yesterday. In other coverage, The Ledger Independent reports that "Arguments heard in Ten Commandments case" and that "Ten Commandments supporters hold press conference before historic appeal hearing."

From Alabama, yesterday afternoon's edition of The Huntsville Times reported that "Moore's appeal may be decided by luck of draw; If former colleagues recuse, temporary Supreme Court may be chosen at random." Today The Montgomery Advertiser contains an editorial entitled "Hard to see basis for appeal" and an article headlined "Invitation joke angers Moore."
Posted at 17:11 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "FBI: Nothing Ruled Out in Prosecutor Death" and "Federal Prosecutors Face Threats, Violence."
Posted at 16:37 by Howard Bashman



"Olympic Bribe Case Evidence Offended Judge": The Associated Press provides this report.
Posted at 13:39 by Howard Bashman



"Prosecutor suffered a grisly death": This article appears today in The Lancaster Intelligencer Journal.

In other coverage, The Associated Press reports that "Many Avenues Probed in Prosecutor Slaying"; The Los Angeles Times reports that "Slain Prosecutor Remembered for Dedication"; and The Washington Times reports that "Prosecutor drowned after stabbing." The most interesting of today's reports, however, remains this one from The Baltimore Sun.
Posted at 13:28 by Howard Bashman



"Supreme Court to Address Miranda Questions": Gina Holland of The Associated Press provides this report. And a related item is headlined "Miranda Cases Supreme Court Is Reviewing."
Posted at 13:21 by Howard Bashman



The long and the short of it: The U.S. Virgin Islands, while part of the United States, are deemed to exist outside of the Nation's customs and immigration borders. Thus, when someone visits the U.S. Virgin Islands from the mainland United States, he or she must clear customs and immigration on return to the mainland.

This morning, I arrived at the airport in Philadelphia at an ungodly early hour, in the midst of today's winter storm, carrying the forms of identification I had been told would suffice to ensure my readmission on return home. The ticketing computer of the major air carrier on which my flights had been booked -- an airline without a hub in Pennsylvania on which I have seldom if ever flown in the past -- stated that only two forms of identification would guarantee readmission, and I had neither with me this morning nor do I have either readily available now. Because I possessed neither form of identification, the airline refused to transport me to my destination.

On my return home, I was outraged to learn, based on my review of the Web site of the U.S. Customs and Border Protection agency and my discussions by telephone with both Customs and Immigration officials on the ground in St. Croix -- the destination to which I am traveling -- that the forms of identification that I had with me this morning would indeed have sufficed to ensure my readmission. Why was I outraged? Here are a few of the reasons: I woke up at 4:15 a.m. this morning to catch my flight and now will have to do so again tomorrow; I traveled treacherous roads to get to and from the airport; either my hotel and car rental agency or I will have to bear the cost of my arrival one day late; the last-minute airfare on the airline I use most often, an airline that I trust would have known that my ID was sufficient, is approximately $1000 more than the cost of my previously purchased tickets on the airline that has no clue; and I'm spending a day I had hoped to spend in the tropics instead in a winter wonderland, seething.

Fortunately, a mere five and one half hours after departing for the airport this morning, I was able to convince the ticketing agent supervisor of the air carrier on which I was to have traveled that I should have been allowed to travel out this morning based on the forms of identification I then possessed. How did I make my case? I had her speak with the immigration officer in St. Croix who had told me that he had never heard of an airline's refusing transportation to someone who had my documentation and that I would have no trouble gaining readmission based on it. Still, though, what an annoying, anxiety-ridden morning I had the pleasure to experience today, all because one of America's major air carriers has no clue about what the rules governing travel between the mainland USA and the U.S. Virgin Islands provide. I can't wait until I return home from my trip to the Islands to write an angry letter to the airline's CEO. And I will no longer fail to heed my wife's reminders that I really ought to do what's necessary to apply for a passport, even though one clearly isn't necessary under the current rules governing transportation between where I am and where I'm going.
Posted at 13:01 by Howard Bashman



"Personal motive suspected in killing of U.S. prosecutor; Investigators pursue theory of relationship that turned violent; Case could be handed off to Pa." This article appears today in The Baltimore Sun.
Posted at 10:05 by Howard Bashman



Friday, December 05, 2003
Can't complain: It would be extraordinarily bad form -- in the midst of a snowstorm that is expected to dump between six inches and a foot of snow in the suburbs of Philadelphia where I reside -- to express anything other than absolute delight at having to travel to an exotic, warm, and sunny tropical location to deliver an appellate oral argument to a panel of three judges of the U.S. Court of Appeals for the Third Circuit. Never mind that my typical journey to appear before these judges consists of a ten minute walk instead of five hours on an airplane. I'm due to be en route most of the day tomorrow, and I won't know for sure until I arrive at my destination whether a super-fast Internet connection awaits me, and the laptop computer I'm lugging along, in my hotel room. To the extent that blogging is curtailed or non-existent over the next several days, rest assured that I will have found something even more worthwhile to occupy my time and that I will do my best to catch-up on any backlog of appellate-related developments once I return to my usual haunts sometime later next week.

Update: Sadly, my arrival in the Caribbean has been postponed until Sunday.
Posted at 23:33 by Howard Bashman



Available online from law.com: An article reports that "No Easy Answers for Getting Moussaoui Case Back on Track." In other news, "Courts Cut Back; Federal court system begins unprecedented budget-induced layoffs." In news from Georgia, "Jury Lets Ford Off Hook in Explorer Rollover Suit." And an article reports that "Judge's Threat to Paper Leads to His Recusal."
Posted at 23:30 by Howard Bashman



"Drowning Is Cited in Prosecutor's Death": This article will appear in Saturday's issue of The New York Times. Saturday's edition of The Baltimore Sun will contain an article headlined "U.S. prosecutor's slaying shocks Pa. community; Violent crime uncommon in isolated townships of Lancaster County." Saturday's issue of The Washington Post will report that "Prosecutor May Have Been Tortured; Pa. Coroner Says Death Was Caused by Stab Wounds, Drowning." And Newsday late today posted online an article headlined "Murdered Prosecutor Kept NYC Ties."
Posted at 23:23 by Howard Bashman



The Associated Press is reporting: Now available are articles headlined "Brain-Damaged Woman's Parents Seek Appeal" and "Pa. Prosecutor Charged With Fondling Girl."
Posted at 23:20 by Howard Bashman



"HLS 1L's case arrives at Supreme Court; Justices consider Davey's challenge to Washington state law denying public scholarships to theology majors." Clinton Dick has this report in the current issue of The Harvard Law Record.
Posted at 23:15 by Howard Bashman



Available for viewing online from C-SPAN: Yesterday, Justice Stephen G. Breyer spoke to the American Enterprise Institute. I previously noted Anne Gearan's report on the speech. You can view his speech online by clicking here (Real Player required) or here (Windows Media Player required, via AEI).

Last Saturday's "America and the Courts" program featured speeches delivered by two other U.S. Supreme Court Justices. You can watch last week's program by clicking here (Real Player required).
Posted at 23:00 by Howard Bashman



"Olympic Bribery Charges Dismissed": This audio report (Real Player required) aired this evening on NPR's "All Things Considered."
Posted at 22:50 by Howard Bashman



"High court rejects Moore's plea; Disgraced former governor won't get law license back": The Charleston Gazette today contains this article, which reports (among other things) that someone apparently leaked an early draft of the Supreme Court of Appeals of West Virginia's opinion to the press, that yesterday the court had posted online only a concurring opinion, which was quickly withdrawn from the Web, and that the majority opinion never was posted online. A reader yesterday had emailed a similar report about the curious appearance and disappearance of the concurrence from the Web, and now official confirmation appears to have occurred. The clerk of that court has his own Web log, but only time will tell whether yesterday's events will receive mention there.
Posted at 20:18 by Howard Bashman



"Appeals court to rehear redistricting suit": The Providence Journal today contains this report (registration required) on Wednesday's grant of rehearing en banc by the U.S. Court of Appeals for the First Circuit. My post yesterday on this matter can be accessed here.
Posted at 17:25 by Howard Bashman



"Police search here all night for clues after federal prosecutor's body found": This article appears today in The Lancaster New Era.
Posted at 16:28 by Howard Bashman



Cue the tape: This decision that a divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued today involves an interesting question about when a government witness may be allowed into the jury room while deliberations in a federal criminal prosecution are underway and neither the defendant nor his counsel are present.
Posted at 16:14 by Howard Bashman



"The Memos and Ms. Jones": Juan Non-Volokh has a post at "The Volokh Conspiracy" that begins, "The New York Times editorial board has finally discovered the Senate Judiciary Committee 'collusion memos' detailing Democratic and liberal interest group opposition to Bush’s judicial nominees."
Posted at 16:10 by Howard Bashman



In Illinois, flag burner receives prison sentence: On Wednesday, The Southern Illinoisan reported here that "Burning an American flag landed a Jonesboro man in jail for several days, said Union County Assistant State's Attorney Patrick Duffy." And today The Chicago Tribune contains an AP report headlined "Downstate flag burner gets 14-day sentence" (registration required). Amanda Butler at the "Crescat Sententia" blog reacts to the news in a post accessible here.
Posted at 16:07 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "Supreme Court Sits for Group Portrait." If you act fast, you can see photos from today's portrait session here and here.

In other news, "Source: Prosecutor Was Stabbed 36 Times"; "Possible Brainwashing Eyed in Sniper Case"; "Expert Says Janklow Had Diabetic Reaction"; "Judge: No Mistrial for Accused Hijackers"; "Court Overturns DuPont Blood Test Ruling"; "Trampled Woman Made Prior Injury Claims"; "Jury Awards $5M to Injured Violinist"; and "McDonald's Burger Spat Lands Woman in Jail."
Posted at 15:10 by Howard Bashman



"Kamehameha settlement OK'd": The Honolulu Advertiser today reports here that "A federal judge's decision yesterday to approve a settlement allowing a non-Hawaiian to continue his education at Kamehameha Schools stoked the fires of the controversial case, with the debate this time centering on the issue of the Hawaiian adoption tradition known as hanai."
Posted at 14:47 by Howard Bashman



"County employee dupes bosses with 'jury-duty' leave, police say; A man is arrested, accused of collecting $17,388.47 in pay for six months while falsely claiming to be on jury duty." This article appears in today's edition of The Miami Herald. (Via "Obscure Store.")
Posted at 14:34 by Howard Bashman



"ACLJ Asks Federal Appeals Court to Declare Ten Commandments Displays Outside Ohio Schools Constitutional": The American Center for Law and Justice has issued this press release concerning today's oral argument before the U.S. Court of Appeals for the Sixth Circuit.
Posted at 14:10 by Howard Bashman



"Coroner: Slain prosecutor 'brutalized.'" The Associated Press, via The Baltimore Sun, provides this news update.
Posted at 14:04 by Howard Bashman



Over the dissent of six judges, U.S. Court of Appeals for the Ninth Circuit denies rehearing en banc in controversial police chase qualified immunity case: You can access today's order denying rehearing en banc, the dissent therefrom, and the amended three-judge panel opinion and amended dissent therefrom at this link. You can access here the three-judge panel's original opinion, issued on August 4, 2003, and my post from that day, entitled "Ninth Circuit considers future of 'World's Scariest Police Chases,'" is available here.
Posted at 13:31 by Howard Bashman



Appellate heresy? The December 2003 installment of my monthly appellate column (archived here) will be published on Monday in The Legal Intelligencer. In this month's column, I argue that with respect to those appellate courts that allow oral argument in fewer than all appeals to be decided on the merits, the decision concerning which appeals should be argued ought to be made by the appellate judges rather than by the lawyers for the parties.

The specific focus of my argument is the Superior Court of Pennsylvania -- an intermediate appellate court of general jurisdiction -- where it is not unusual for a three-judge panel to have oral argument in twenty to thirty cases per day in a three-day sitting. But, of course, my argument probably applies to all very busy appellate courts in which the lawyers, rather than the judges, are determining which appeals are argued.

On the other hand, as this post yesterday from new mom Denise Howell explains, in appeals pending in the California state court system, parties have a right based on that state's Constitution to oral argument in every appeal. Yikes.

I'd be interested to hear from the readers of this blog -- especially appellate practitioners and appellate judges -- whether they agree that a system in which appellate judges determine which appeals are orally argued is superior to a system in which the lawyers decide. To initiate an email to me, simply click here.
Posted at 13:10 by Howard Bashman



Judges who are not named Dave and the Rainbow People: See this opinion that a unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit issued today. The opinion contains the obligatory cite to the Green Bag 2d. (For even more information about the book "Judge Dave and the Rainbow People," see this article by Tony Mauro.)
Posted at 12:34 by Howard Bashman



"U.S. prosecutor found slain": The Intelligencer Journal of Lancaster, Pennsylvania provides this report.
Posted at 11:14 by Howard Bashman



This morning's other Ten Commandments news: The Ledger Independent of Maysville, Kentucky reports this morning that "The 6th Circuit U.S. Court of Appeals in Cincinnati will hear open arguments today on the appeal of U.S. District Court's decision calling for the removal of Ten Commandments monuments from four school campuses in Adams County." The Northeast Georgian reports here today that "The Habersham County Commission will appeal a judge’s ruling which ordered the county to remove its copies of the Ten Commandments from public display." And in other news from Georgia, The Tifton Gazette reports that "Ten Commandments signs pop up around Tifton."

Finally, in response to my round-up of Ten Commandments-related news posted here Wednesday evening, the author of "Thus Blogged Anderson" concludes that Themis is "kinda hot." At least Andy doesn't express any untoward affection toward the "pagan panther."
Posted at 10:40 by Howard Bashman



Welcome "Punishment Theory" to the blogoshpere: Described as "An occasional, communal blog on criminal law and philosophy," and among its participants is Law Professor Rick Garnett.
Posted at 10:37 by Howard Bashman



Today on NPR's "Morning Edition": By clicking on the following links, you can listen online (Real Player required) to reports entitled "N.D. Kidnapping Prompts Calls for Death Penalty" and "Prosecutor in Rap Artist's Drug Trial Found Dead."
Posted at 09:00 by Howard Bashman



"Moore to appeal his ouster": The Montgomery Advertiser today contains an article that begins, "Refusing to accept his removal from office, ousted Alabama Supreme Court Chief Justice Roy Moore announced Thursday that he will file an appeal on or before Dec. 10, continuing his legal fight to get his job back."
Posted at 07:47 by Howard Bashman



"Prosecutor of drug case found killed; Assistant U.S. attorney for Md. discovered shot, beaten and stabbed in Pa.; 'We will find out who did this'; Authorities retrace Luna's steps, ask for public's help": This article appears today in The Baltimore Sun.
Posted at 07:45 by Howard Bashman



In Friday's newspapers: The New York Times reports that "Federal Prosecutor Found Dead With Stab Wounds." In other news, "Guantanamo Chaplain and His Wife Speak Out." Adam Liptak reports that "Younger Sniper Suspect's Lawyers Press Insanity Defense." In news from Salt Lake City, "Defense Asks for Acquittal." In business news, "I.R.S. Told to Explain Tax-Exempt Refusals." An article reports that "One Top Political Figure Testifies for Another in South Dakota." From Buffalo comes news that "Qaeda Trainee Is Sentenced to 8-Year Term." An article reports that "Lawyers Are Warned on Mutual Fund Roles." In local news, "Brooklyn Murder Trial Is Shadowed by Fear and a Witness's Death." In other local news, "A Hindu Temple of Discord." An editorial is entitled "Partisan Hacking in Congress." Columnist Bob Herbert has an op-ed entitled "Returned to Life." And letters to the editor appear under the headings "Reducing Abortions" and "Gays in the Military."

The Washington Post reports that "Maryland Prosecutor Is Found Slain in Pa.; Federal Official Worked Drug Cases" and "Luna's Potential, Dedication Recalled; Friends, Colleagues Mourn Prosecutor." In news from Virginia, "Sniper Jury Hears of Utopia Vision; Defense Says Muhammad Planted Idea for Compound in Malvo's Mind"; "Malvo's Drawings Attack U.S., Racial Bias; Other Jailhouse Illustrations Depict Personal Failure, Alienation"; "Malvo Lawyers Shift the Focus To Muhammad; Defense Case Becomes Trial in Absentia"; and "Malvo's Unambiguous World; Prison Drawings Emphasize Power and Vengeance." An article reports that "Final Arguments Are Made on Hinckley Visits; Man Who Shot Reagan in '81 Seeks Unsupervised Outings." In other news, "Daschle Takes Witness Stand For Janklow; Democratic Leader Testifies About Colleague's Character." An article reports that "9/11 Kin Grieve at Trial in Germany." In news from California, "Bonds Gives Testimony; He Appears Before Grand Jury Investigating BALCO Case." And an editorial is entitled "Not Good Enough."

The Christian Science Monitor reports that "In battle for Sunday, the 'blue laws' are falling." And in other news, "New mascot war is over an ancient Aztec; San Diego students vote this week, with the limits of political correctness at issue."

Finally, The Wall Street Journal contains an editorial entitled "The Gerrymander Moment: Democrats discover this incumbent-protection racket."
Posted at 06:30 by Howard Bashman



Access online the federal government's brief in opposition filed in the U.S. Supreme Court in response to the petition for writ of certiorari filed by accused enemy combatant, and U.S. citizen, Yaser Esam Hamdi: You can access the brief in opposition, filed with the Court on Wednesday, at this link.
Posted at 00:12 by Howard Bashman



Thursday, December 04, 2003
Elsewhere in Thursday's newspapers: In The Boston Globe, Lyle Denniston reports that "Bush administration defends detainee policy; 'Enemy combatant' review unnecessary, Supreme Court told." In other news, "DNC wary of gay marriage issue; Stance sought to limit impact on convention." And an article reports that "Sampson pleaded for help, court told; Prison counselor testifies at trial on death penalty."

USA Today reports that "Court skeptical about need for Foster photos; Investigators overlooked evidence, plaintiff says." In other news, "Judges weigh trial fairness against homeland security; Moussaoui key to White House legal strategy in war on terror." An article reports that "Taliban fighter can't challenge detention, says Justice Dept." And an article is headlined "Sex shops infiltrate small towns; Stores make use of lax zoning laws; opponents can do little."

The Washington Times reports that "NAACP lobbyist slammed for Kennedy judge memo." In DC-area sniper related news, "Judge says Malvo's letter not admissible evidence" and "States vie for sniper suspects." An article reports that "Bush supports centrist Specter in Pennsylvania." And Jonathan M. Stein has an op-ed entitled "Legal memo to the Democrats."

The Los Angeles Times reports that "White House Defends Hamdi's Limited Rights; In a high court brief, the Bush administration says war customs allow denying suspect counsel." In other news, "U.S. Court Rules Against Parts of Anti-Terror Law; Federal prosecutors' interpretation of 1996 act, a major tool of the Justice Department, is unconstitutional, 9th Circuit panel finds." An article reports that "Army Chaplain's Lawyer Gets Secret Data; The attorney for a Guantanamo Muslim accused of mishandling classified material will raise 'double-standard' issue at a hearing." In news from Virginia, "In Letter to Teen Girl, Malvo Wrote He Was 'Walking Time Bomb.'" In news from South Dakota, "Prosecution Wraps Up in Janklow Trial; Witnesses cast doubt on the lawmaker's medical condition at the time of an accident and describe his involvement in two close calls in traffic." An article reports that "Judge Rejects Streisand Privacy Suit; Photo on Web site did not intrude on actress' seclusion, ruling says." In other news, "1st 'Lackawanna Six' Sentencing; The New York man had been to an Al Qaeda training camp and met with Osama bin Laden." And an editorial is entitled "The Law of Say-So."
Posted at 23:31 by Howard Bashman



"Texas A&M defies trend, won't use race as admissions factor": This article appears in today's issue of The Houston Chronicle.
Posted at 22:44 by Howard Bashman



Available online from law.com: Jonathan Ringel reports that "Visiting Judges Balk at 11th Circuit's Protecting Police; Dissenters in three cases are from other courts." In other news, "California Appeals Court Bucks Trend on Punitives." And an article is headlined "On Death Row, on Their Own: In Alabama, some inmates don't have lawyers as they near the last bid for life."
Posted at 22:33 by Howard Bashman



"U.S. Attorney Found Murdered in Pennsylvania": This evening's edition of NPR's "All Things Considered" included this audio report (Real Player required).
Posted at 22:30 by Howard Bashman



The Associated Press is reporting: Now available are articles headlined "Missing Prosecutor Found Stabbed to Death"; "Federal Prosecutor 'Dedicated to Justice'"; "Government Won't Seek Union, Dem Case Review"; "Sniper Lawyers Challenge Insanity Defense"; "Man Charged With Secretly Taping Ex"; "Breast-Feeding Driver Gets House Arrest"; and "Daschle Testifies at Janklow's Trial."
Posted at 22:20 by Howard Bashman



"Court of Appeals to Honor Senior Circuit Judge Herbert Choy with Portrait Unveiling": The U.S. Court of Appeals for the Ninth Circuit issued this news release today.
Posted at 22:10 by Howard Bashman



"State Justices Decline Fed. Court's Questions in Death Penalty Case": The Associated Press provides this report from Tennessee.
Posted at 22:00 by Howard Bashman



"Ninth Circuit Denies En Banc Review of Ruling on Liability of Website Operator for Defamation": The Metropolitan News-Enterprise today offers this report on a development that I previously touched on here and here.
Posted at 20:33 by Howard Bashman



"Kamehameha deal approved by judge": The Honolulu Advertiser offers a news update that begins, "Citing ancient Hawaiian laws and 'honest mistakes,' a federal judge approved an out-of-court settlement today that allows a non-Hawaiian boy to continue his education at Kamehameha Schools."
Posted at 20:30 by Howard Bashman



"Breyer: Judges Struggle With Tech Cases." Anne Gearan of The Associated Press provides this report.
Posted at 19:55 by Howard Bashman



"Prosecutor is found dead in Pa." The Baltimore Sun provides this coverage. And The Associated Press reports that "Luna remembered as fair, hard-working."
Posted at 19:53 by Howard Bashman



"Missing Prosecutor Found Shot, Stabbed": The AP now confirms the details of the earlier report from CNN that I mentioned here.
Posted at 17:25 by Howard Bashman



"Missing federal prosecutor found dead": The Associated Press, via The Baltimore Sun, provides this report.
Posted at 15:53 by Howard Bashman



"Federal judge John Hannah dies at age 64": The Associated Press reports here that "Federal Judge John H. Hannah Jr., chief judge for the U.S. Eastern District of Texas, died Thursday of an apparent heart attack while attending a judicial conference in Florida. He was 64."

Update: The U.S. District Court for the Eastern District of Texas has issued this press release.
Posted at 15:44 by Howard Bashman



Are United States citizens who wish to sue the government of Cuba in the courts of Cuba treated differently from citizens of Cuba? Today the U.S. Court of Appeals for the Federal Circuit issued an opinion involving a federal law known as the Reciprocity Act. The opinion begins:
This suit was brought in the United States Court of Federal Claims by Cuban nationals seeking payment of pension benefits from the United States government. The complaint alleges that the plaintiffs are former military personnel, or the surviving spouses of former military personnel, who served in various branches of the United States armed forces during World War II, and therefore, are entitled to participate in the Civil Service Retirement System. The Court of Federal Claims dismissed the plaintiffs' action for want of jurisdiction, holding that it did not have subject matter jurisdiction over their complaint pursuant to 28 U.S.C. § 2502(a) (the "Reciprocity Act") even if they were entitled to payment. Ferreiro v. United States, 54 Fed. Cl. 274, 281 (2002). The Reciprocity Act limits the jurisdiction of the Court of Federal Claims over suits brought by aliens against the United States to those suits in which the alien's home country "accords to citizens of the United States the right to prosecute claims against their government in its courts." 28 U.S.C. § 2502(a) (2000). For the reasons set forth below, we vacate the judgment of the Court of Federal Claims dismissing the complaint and remand the case for a more complete assessment of whether the plaintiffs have satisfied the requirements of the Reciprocity Act.
You can access the complete opinion at this link.
Posted at 15:33 by Howard Bashman



"Authorities Search for Missing Prosecutor": The Associated Press reports here from Baltimore that "Authorities searched for a federal prosecutor who failed to show up at court Thursday for the drug trial of a rap artist and one of his former associates, an FBI spokesman said."

Update: CNN just reported at 3:29 p.m. that this prosecutor's body has been found dead, shot and stabbed, in Lancaster, Pennsylvania
Posted at 15:11 by Howard Bashman



Rene Magritte would be proud: A unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued an interesting decision today in which the final paragraph begins, "Because we conclude that the district court's judgment of acquittal was not in fact an acquittal, we vacate that judgment and remand this case to the district court for a new trial." Or, as Magritte once declared, "Ceci n'est pas une pipe."
Posted at 15:02 by Howard Bashman



First Circuit granted rehearing en banc yesterday in an important Voting Rights Act case: Law Professor Rick Hasen, of the "Election Law" blog, has the details here. My post reporting on the three-judge panel's now-vacated opinion can be accessed here.
Posted at 14:45 by Howard Bashman



More Moore: In news from Alabama, The Huntsville Times reports here this afternoon that "Moore to appeal removal from bench; 8 state Supreme Court justices could recuse themselves." The Montgomery Advertiser today contains an editorial that begins, "The sheer stubbornness of some supporters of ousted Chief Justice Roy Moore is something to behold." And yesterday's edition of The Advertiser contained an article headlined "Pryor given summons over lawsuit."
Posted at 14:10 by Howard Bashman



"'Terrorist to abortionists' guilty; The Army of God extremist was convicted by a federal jury of mailing hundreds of bogus anthrax threat letters to disrupt clinics in 24 states." This article appears today in The Philadelphia Inquirer.
Posted at 14:03 by Howard Bashman



"DoD Assigns Legal Counsel for Guantanamo Detainee": Yesterday the Department of Defense issued this press release. In press coverage of this development, The Associated Press reports that "Guantanamo Detainee Is Assigned a Lawyer"; The Miami Herald reports that "Camp detainee will get attorney; A Marine Corps lawyer will represent Australian David Hicks, held as an 'enemy combatant' at Guantanamo Bay. It's the first time legal representation has been approved for a prisoner there"; The Sydney Morning Herald reports that "Hicks gets military lawyer"; The Financial Times reports that "First foreign Guantanamo detainee gets lawyer"; and The Age reports that "Hicks' lawyer prepares plea bargain."
Posted at 13:20 by Howard Bashman



The Associated Press is reporting: Now available online are reports headlined "Ten Commandments Judge to Fight for Job"; "Malvo Judge Bans Attorneys' Media Talk"; "Hinckley's Lawyer Argues for Visits"; and "Ex-W.Va. Governor Loses Law License Bid."
Posted at 13:01 by Howard Bashman



76-year-old Philadelphia woman charged with attempting to hire hit man to kill her 82-year-old husband: See this report from The Philadelphia Inquirer and this report from The Philadelphia Daily News.
Posted at 10:49 by Howard Bashman



Additional coverage of yesterday's appellate oral argument in the Zacarias Moussaoui case: The International Herald Tribune reports that "Arguments open in Moussaoui case." The Richmond Times-Dispatch reports that "Lawyers argue accused's rights; Moussaoui attorney says defendant must be allowed access." The Sacramento Bee offers an article headlined "U.S.: Execution should be option in terror case; A judge's sanction in the Moussaoui trial is appealed." Newsday reports that "Moussaoui Trial Rights Debated." The Knight Ridder News Service reports that "Judges weigh national security, fair trial in Moussaoui case." The Cox News Service reports that "Attorneys debate witness access." And last night's edition of the PBS program "NewsHour with Jim Lehrer" contained a report entitled "Terrorism Cases" (transcript here; audio here (Real Player required)).
Posted at 10:01 by Howard Bashman



"Justices hear arguments on Vince Foster photos": Jan Crawford Greenburg of The Chicago Tribune today provides this report on yesterday's U.S. Supreme Court oral argument.

And in other coverage, Lyle Denniston of The Boston Globe reports that "High court hears plea to release death photos; Privacy of family is weighed against rights of the public"; The Pittsburgh Post-Gazette reports that "Top court cool to arguments for releasing Foster photos"; and The Atlanta Journal-Constitution reports that "1993 death sparks battle over privacy; Court to say if photos are open to all."
Posted at 09:30 by Howard Bashman



"High Court Hears HLS Student's Lawsuit": This article appears today in The Harvard Crimson.
Posted at 06:58 by Howard Bashman



In Thursday's newspapers: In The New York Times, Linda Greenhouse reports that "Justices Hear Case on Using Death Photos of Official." An article reports that "Judges Hear U.S. Appeal in Terror Case." In news from the Ninth Circuit, "Appeals Court Casts Doubt on Parts of Key Antiterrorism Law." Neil A. Lewis has a news analysis headlined "Sudden Shift on Detainee." In news from Delaware, "Ex-Chrysler President Testifies in Kerkorian Suit." In news from California, "Absence of Formal Charges Against Michael Jackson May Point to a Weakening of the Case." An article reports that "Colorado's New Voucher Law Is Struck Down in State Court." In other news, "Ruling Is Near on Limits Put on Film Copies." In news from Buffalo, "Man Who Trained With Qaeda Gets 10-Year Sentence." And in local news, "After Scandals, State Panel Offers Plan to Revamp Judges' Elections."

In The Washington Post, Charles Lane reports that "Privacy Case Goes Before Justices; Man Battling Family for Access to Vincent Foster Photos" and that "Court Rules On Aiding Terrorist Groups; Knowledge of Activity Must Be Proved For Conviction." An article reports that "Compromise Hinted In Moussaoui Case." In other news, "Guantanamo Bay Detainee Is First to Be Given a Lawyer; Move Is Sign That Australian Alleged Al Qaeda Fighter May Be Tried by Tribunal." A news analysis is headlined "Decision to Allow Lawyer for 'Enemy Combatant' Is New Policy." In news from the DC-area sniper trial that is still underway, "Judge Bars Letter by Malvo; Jurors Won't Hear Testimony on Letter After Judge Rules It's Hearsay"; "'All I Ask Is To Be Loved For Me, Lee'; Inadmissible Letter Is Called Plea for Help"; "Racial Issues Raised At Trial; Malvo Defense Alleges Muhammad Grudge"; and "Muted Court; Lee Boyd Malvo's Trial Has Proved to Be A Low-Key Affair." In news from South Dakota, "Janklow Jury Told of Earlier Near-Accident." In news from Maryland, "Judge Rebuked for Restaurant Behavior." And columnist E.J. Dionne Jr. has an op-ed entitled "Just Case, Bad Trend."
Posted at 06:30 by Howard Bashman



Wednesday, December 03, 2003
Elsewhere in Wednesday's newspapers: USA Today reports that "Justices wrestle with state-paid scholarships for religion studies; 1st Amendment questions raised" and that "Court permits speedy drug raid; 15- to 20-second wait, then police can enter." And Tony Mauro has an op-ed entitled "Do-it-yourself defendants imperil their own cases."

In The Boston Globe, Lyle Denniston reports that "Aid for religious studies eyed; Supreme Court mulls requiring states to offer it"; "High court says every second counts in search for illicit drugs"; and "Access to lawyer OK'd for US-born detainee; Pentagon breaks with previous policy." In other news, "For gays, divorce may soon be a useful right." And an article reports that "Defense portrays killer's troubles; Sampson alcoholic, violently unstable."

In The Los Angeles Times, David G. Savage reports that "Taxes, Church Collision Splits Court; The justices debate whether public funds can pay for a student's clergy education"; "Before a Drug Raid, 20-Second Wait Is Adequate, Justices Rule"; and "High Court Upholds Firm's Rehiring Ban; Justices say it's not bias if a former drug user is fired for violating workplace." In news from Virginia, "Sniper Liked to Control, Son Says; His father exploited people's weaknesses, he testifies during the trial of Lee Boyd Malvo." In news from South Dakota, "Tape Shown Jury Captures Janklow's Words, Horror." In local news, "Suit Against Tree-Sitter Dropped; Company says it wants to focus on relocating the massive Santa Clarita Valley oak." And Law Professor Alan M. Dershowitz has an op-ed entitled "To Fix Gay Dilemma, Government Should Quit the Marriage Business."

The Washington Times reports that "Court weighs religious studies." In news from Virginia, "Malvo asked for help." An article reports that "Military practices a mock tribunal." In other news, "Polygamist cites ruling on sodomy." And in local news, "Md. court to rule on dismissed confessions."
Posted at 23:33 by Howard Bashman



Available online at law.com: Tony Mauro reports that "Supreme Court Hears Case Over Vincent Foster Photos." And an article headlined "Leap of Faith" reports on a very interesting case pending before the Supreme Court of California.
Posted at 22:31 by Howard Bashman



"Part of '96 Anti-Terror Law Overturned": David Kravets of The Associated Press reports here on what I previously described as today's "more important" Ninth Circuit ruling. And as much as it pains me to admit that something could be more important than the Ninth Circuit opinion issued today that mentions "How Appealing," at least blogger Phil Carter, known for the excellence of his military analysis, agrees with me on the importance of this ruling. (In the hope of further ensuring that I retain a modicum of humility, a well-known former U.S. Supreme Court law clerk emailed shortly after I noted here today's opinion mentioning "How Appealing" to point out that footnote 6 of that opinion contains the incorrect name of the respondent in this U.S. Supreme Court case.)
Posted at 22:11 by Howard Bashman



Ten Commandments news (at least in part): The Seattle Times today reports that "Settlement urged over monument," while The Grand Forks Herald reports from North Dakota that "Christian activist asks for removal of Themis." Previously, The Herald reported that "Fargo man asks UND for help in suing county over Themis." And for those who are curious, we've got your Themis right here. Regrettably, I still have nothing new to report concerning the "pagan panther" (see here and here for prior news coverage).
Posted at 20:00 by Howard Bashman



Public library says "no" to Jesus: The Record-Journal of Meriden, Connecticut reports that "Officials say local artist's artwork would cause too much upset, outcry."
Posted at 19:47 by Howard Bashman



Now if only he could find a way to place Tennessee into the Ninth Circuit: The Tennessean reported yesterday that "Homemade machine-gun maker seeks to withdraw guilty plea."
Posted at 19:44 by Howard Bashman



Tonight's edition of NPR's "All Things Considered" offers several interesting segments: By clicking on the links provided, you can listen to the following reports (Real Player required) -- "Pentagon Allows 'Enemy Combatant' Access to Attorney" (featuring Nina Totenberg); "Government Fights Moussaoui Death Penalty Ruling"; and "U.S. Officers Question Guantanamo Detention Policy."
Posted at 19:25 by Howard Bashman



"How Much Is Privacy Worth?" Wired News this morning published this preview of the other U.S. Supreme Court case argued today.
Posted at 19:22 by Howard Bashman



"Jury convicts anthrax terrorist": The Philadelphia Inquirer provides this news update. And The Associated Press reports that "Man Is Convicted in Anthrax Hoax Case."
Posted at 19:20 by Howard Bashman



"The Wing Nut's Revenge: A conspiracy theorist has his day in court." Slate's Dahlia Lithwick has this report on a case argued today in the Supreme Court of the United States. The final two paragraphs of Dahlia's essay are a scream.
Posted at 18:44 by Howard Bashman



"Sanford pleads case directly with Supreme Court justices": In a very interesting article, The Associated Press reports from South Carolina that "Gov. Mark Sanford asked the state Supreme Court on Wednesday to think about the personal side of a constitutional dispute that could undo all of his official actions since taking office in January. It was the first time, as far as court observers could recall, that a sitting governor spoke to the high court."
Posted at 17:39 by Howard Bashman



In Thursday's edition of The Christian Science Monitor: An article is headlined "Legal battles over 'contraceptive equity.'" And an editorial is entitled "War vs. Rights: Bush Bends."
Posted at 17:30 by Howard Bashman



"US Urges Court to Keep Death Penalty for Moussaoui": Reuters provides this report on today's Fourth Circuit oral argument.
Posted at 17:28 by Howard Bashman



"Deliberations begin in anthrax threat case": The Philadelphia Inquirer provides this news update. The Associated Press, meanwhile, reports that "Jury to Decide on Anti-Abortion Extremist." The AP's report begins, "An anti-abortion extremist accused of mailing hundreds of anthrax hoax letters to women's clinics concluded his defense Wednesday by telling a jury he was proud of terrorizing others and should have shot abortion providers." And today's edition of The Inquirer contained an article headlined "Testimony ends in threat trial; Clayton Lee Waagner, accused of mailing bogus anthrax threats, questioned a witness about abortion."
Posted at 17:19 by Howard Bashman



Can fiction be libel? The author of the "Texas Law Blog" was present for today's oral argument in the Supreme Court of Texas (see my preview of that oral argument here), and he offers this report.
Posted at 17:09 by Howard Bashman



In news from Wilmington, Delaware via Detroit, Michigan: The Detroit News today reports that "Billionaire says officials misled him on DaimlerChrysler deal; Kerkorian claims he was duped" and yesterday reported that "Kerkorian comes out swinging; Trial opens; investor accuses DaimlerChrysler of fraud; automaker claims billionaire after money."

The Detroit Free Press today reports that "Kerkorian charges deceit, fraudulence; Billionaire testifies in his suit against DCX"; yesterday reported that "DCX merger defended in trial; But Kerkorian's lawyers say Daimler-Benz lied"; and on Monday reported that "Billionaire takes on DCX merger today; Carmaker ready to defend allegations it made deceptive deal."

And The Associated Press today reports that "Former Chrysler president takes stand in Kerkorian trial" and yesterday reported that "Kerkorian says he was deceived; Billionaire testifies in DaimlerChrysler suit."
Posted at 16:50 by Howard Bashman



Meet Justice William W. Bedsworth, buy his new book, or both: The Recorder provides these details.
Posted at 16:40 by Howard Bashman



The Fourth Circuit issues important decisions: At least that seems to be the point of this item that The Associated Press has published.
Posted at 16:30 by Howard Bashman



"State to appeal judge pay ruling": The Chicago Tribune provides this report.
Posted at 16:21 by Howard Bashman



"Affirmative action battle moves to Lansing": This article appears today in The Detroit Free Press. And The Houston Chronicle reports that "Diversity war of words heats up at Texas A&M."
Posted at 16:11 by Howard Bashman



And now they can afford to hire really, really expensive lawyers: The Atlanta Journal-Constitution reports today that "2 librarians sue Fulton system for bias second time." The article's very first sentence explains, "The Atlanta-Fulton Public Library System is being sued again for race discrimination by two of the eight librarians who won a $17 million judgment against the system."
Posted at 16:10 by Howard Bashman



Marty Lederman of "SCOTUSblog" presents his views on yesterday's U.S. Supreme Court oral argument in the divinity student state-funded scholarship case: You can access his lengthy and informative post here.
Posted at 15:25 by Howard Bashman



The Associated Press is reporting: "Fair Trial for Moussaoui Questioned" and "Judge: School Voucher Law Unconstitutional."
Posted at 14:32 by Howard Bashman



And in more important news from the Ninth Circuit: Today a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued its decision in the latest installment of the case now known as Humanitarian Law Project v. U.S. Department of Justice. The majority opinion, by Circuit Judge Harry Pregerson and in which Circuit Judge Sidney R. Thomas joined, begins:
In 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Two provisions of AEDPA, section 302 and section 303, codified at 8 U.S.C. § 1189 and 18 U.S.C. § 2339B, authorize the Secretary of State ("Secretary") to designate an organization as a "foreign terrorist organization," and make it a crime with a maximum penalty of life in prison for a person to provide "material support or resources" [hereinafter "material support"] to a designated organization, respectively. This case addresses the question whether a criminal prosecution under 18 U.S.C. § 2339B requires the government to prove as an element of the offense that the defendant knew the organization had been designated by the Secretary as a foreign terrorist organization, or at least knew of the organization's unlawful activities leading to its designation.
You can access the complete decision, including the dissenting opinion of Circuit Judge Johnnie B. Rawlinson, at this link.
Posted at 14:05 by Howard Bashman



Oh my! "How Appealing," "SCOTUSblog," "The Volokh Conspiracy," and "Lessig Blog," together with "InstaPundit," are mentioned by way of illustration in this opinion dissenting from the denial of rehearing en banc issued today in which three judges of the U.S. Court of Appeals for the Ninth Circuit have joined. For what it's worth, I would have found the dissent worth mentioning even absent any mention of this blog. You can access my coverage of the three-judge panel's earlier ruling in this case -- a ruling that contained no mention of any blogs -- at this link. Mission accomplished.

Update: Eugene Volokh reacts. Glenn Reynolds observes, "Win/win." Marty of "SCOTUSblog" comments. Sean Corfield, whose software architecture-related blog the dissent also cited, agrees with the dissent in a fitting show of loyalty.

Further update: Chris Geidner of the blog "en banc" opines on the denial of rehearing en banc.
Posted at 13:31 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Supreme Court Hears Foster Photo Case." And in other news, "Judge Bars Malvo Letter in Sniper Trial."
Posted at 12:16 by Howard Bashman



"Punishment Questioned in Teen Sodomy Case": Today, NPR's "Morning Edition" contained a segment described as follows:
The U.S. Supreme Court's June decision striking down a Texas sodomy law prompts the Kansas state Court of Appeals to reconsider a teenager's conviction and 17-year sentence on sodomy charges. At issue is a state law that imposes lesser penalties on teens who engage in consensual sex but specifically excludes homosexuals. Hear NPR's Greg Allen.
You can access the audio report on yesterday's appellate oral argument in Kansas at this link (Real Player required).

In other coverage, The Lawrence Journal-World reports that "Judge ridicules underage sex law; State's harsher sentences for homosexual partners criticized in appellate hearing." The Topeka Capital-Journal reports that "Court takes on gay teen sex case." And The Associated Press reports that "Judge challenges basis of sentence; Same-sex sodomy drew 17-year term" (registration required via The Kansas City Star).
Posted at 11:59 by Howard Bashman



"Funding Studies to Suit Need; In the 1990s, Exxon began paying for research into juries and the damages they award. The findings have served the firm well in court." This front page article appears today in The Los Angeles Times.
Posted at 11:52 by Howard Bashman



In other coverage of yesterday's developments at the U.S. Supreme Court: Jan Crawford Greenburg of The Chicago Tribune reports that "Justices consider state funding for religious studies" and "Court allows speedy break-ins; Police waited only seconds before launching drug search."

The Olympian reports that "Justices hear state religious dispute," The Atlanta Journal-Constitution reports that "Case tests state ban on aid to study religion," and The Pittsburgh Post-Gazette reports that "State bar on stipends for theology draws justices' attention."

In coverage from Nevada, The Las Vegas Review-Journal reports that "High court sides with NLV officers on drug warrant; 'Reasonable' wait before entering home depends on circumstances." And The Las Vegas Sun reports that "High court validates NLV police search; Banks was taking shower when officers entered home in 1998."
Posted at 11:40 by Howard Bashman



"Arguments Under Way in Moussaoui Case": The Associated Press has this early report on today's oral argument before the U.S. Court of Appeals for the Fourth Circuit. Reuters, meanwhile, offers a preview of the oral argument headlined "U.S. urges court to keep death penalty for Moussaoui."
Posted at 11:20 by Howard Bashman



Bob Egelko is reporting: In today's edition of The San Francisco Chronicle, you can access articles headlined "Court hears Catholic Charities case" and "Court orders jailed Sikh activist freed; He funded foreign terrorists, but wasn't deemed dangerous." Monday's Ninth Circuit ruling that is the subject of the second article can be accessed here.
Posted at 10:40 by Howard Bashman



"Supreme Court Weighs Family Privacy Issue": Gina Holland of The Associated Press provides this report.
Posted at 07:02 by Howard Bashman



In Wednesday's newspapers: In The New York Times, Linda Greenhouse reports that "Justices Resist Religious Study Using Subsidies" and that "Knock, Wait 15 Seconds, Then Break In, Justices Rule." From Virginia, Adam Liptak reports that "Muhammad Looms Over Sniper Trial of Teenager." In other news, "Boy's Talk of His Gay Mothers Sets Off Furor in Louisiana." An article reports that "Kerkorian Testifies in His Suit on Chrysler." An editorial is entitled "A Ruling for Democratic Principles." Columnist Nicholas D. Kristof has an op-ed entitled "Lovers Under the Skin." And letters to the editor appear under the heading "Rights, Religion and Gay Marriage."

In The Washington Post, Charles Lane reports that "Justices Back Forced Entry By Police in Drug Case." A front page article is headlined "How 'Don't Tell' Translates; The Military Needs Linguists, But It Doesn't Want This One." In other front page news, "U.S. Allows Lawyer For Citizen Held as 'Enemy Combatant'; Reversal Comes on Eve of Court Filing." In news from Virginia, "Muhammad a 'Manipulator'; At Malvo Trial, Sniper's Son Describes Being Influenced." In local news, "Marijuana Ad On Metro Infuriates Lawmaker." An article reports that "FBI Urges Keeping Anthrax Probe Secret; Information Could Be Disclosed in Lawsuit." In news from South Dakota, "Janklow's Defense Attacked; Congressman Blames Fatal Crash on Diabetes." In business news, "Trend Is To Mediate, Not Litigate, Bias Cases." An editorial is entitled "Once Is Enough." And columnist Anne Applebaum has an op-ed entitled ". . . And Manners."
Posted at 06:30 by Howard Bashman



"Sjodin case spurs Pawlenty to push for death penalty": This morning's edition of The Minneapolis Star-Tribune reports here that "In a surprising move that would reverse a nearly century-old ban on capital punishment in Minnesota, Gov. Tim Pawlenty vowed Tuesday to push for restoring the death penalty after learning that the suspect in the Dru Sjodin abduction is a repeat sex offender."
Posted at 06:28 by Howard Bashman



"20 questions for the appellate blogger": Will Baude of the "Crescat Sententia" blog has the details here.
Posted at 06:25 by Howard Bashman



Tuesday, December 02, 2003
Elsewhere in Tuesday's newspapers: USA Today reports that "Supreme Court takes on religious education; Case could affect the debate over school vouchers." A related item is headlined "Other actions deal with gun rights, death penalty and autopsy photos." And an article reports that "Colorado court's rejection of redistricting may help Dems."

The Washington Times reports that "Justices refuse challenge to gun ownership." In other news, "Colorado court rejects new redistricting map." In news from Virginia, "Sniper invokes Fifth at trial." And an article reports that "West's attorney cites woes in queries."

In The Boston Globe, Lyle Denniston reports that "High court to rule on right of US to make arrests abroad; Case stems from 1985 kidnapping." In other news, "N.H. chief justice announces retirement." The third article in a three-part series is headlined "Behind walls, trouble built to a brutal end." In local news, "Sampson defense to make case; Judge says jury has heard enough on killer's cruelty." An article reports that "Chaplain's hearing delayed; Yee's diary pages improperly released." And columnist Brian McGrory has an essay entitled "Deporting decency."

The Los Angeles Times reports that "Plague Expert Cleared of Serious Charges in Bioterror Case; The Texas Tech scientist is found guilty of embezzlement and fraud but acquitted of lying to the FBI about the theft of samples." In other news, "Colorado Redistricting Plan Illegal, Court Rules; State justices' decision against the GOP-crafted map will have 'major implications,' Democrat says. It could narrow or shift power in the House." An article reports that "Court Eases Rules on Public-Employee Suits; Justices decide workers can file bias claims without first following civil-service procedures." In other news, "Court to Rule on Health-Care Cuts; L.A. County and attorneys for poor patients take their arguments on slashing services to a federal appeals panel." In news from South Dakota, "Congressman's Trial Gets Off to a Tense Start; Residents fill the court for opening remarks in William J. Janklow's manslaughter case." An article reports that "FBI Seeks Wiretap Capabilities for Phone Calls Made Over the Internet; The agency and the Justice Department ask the FCC to ensure that law enforcement can eavesdrop on online communication." In news from Texas, "In Migrant Case, Death Ruled Out." In local news, "D.A. Investigator's Lawsuit Can't Target Assistant in Secret Taping; A judge dismisses Mike Clesceri as a defendant in a state-related dispute." And a letter to the editor appears under the heading "Justice Rains Down?"
Posted at 23:15 by Howard Bashman



"Scholarship case could affect school vouchers": Jan Crawford Greenburg had this article in today's edition of The Chicago Tribune. This evening, she appeared on the PBS program "NewsHour with Jim Lehrer" to discuss today's U.S. Supreme Court oral argument. You can access the transcript of that television segment here and an audio feed here (Real Player required).
Posted at 22:51 by Howard Bashman



"Judge questions punishment in sodomy case": The Topeka Capital-Journal today reports that "An appellate judge today aggressively questioned a deputy attorney general who argued that the Legislature has the right to set policies regarding teen sex -- even if lawmakers treat gays differently than heterosexuals." In other coverage of today's appellate oral argument in this case on remand from the U.S. Supreme Court for reconsideration in light of Lawrence v. Texas, an article reports that "Judge Questions Harsher Punishment In Teen Sodomy Case; State Reasons Different Punishment 'Encourages Procreation.'"
Posted at 22:40 by Howard Bashman



Stephen Henderson of the Knight Ridder News Service is reporting: Available online are articles headlined "Supreme Court rules unanimously in two drug-related cases" and "Justices hear case involving religion, education."
Posted at 22:35 by Howard Bashman



"US terror suspect to get lawyer": BBC News provides this report on today's developments in the Yaser Esam Hamdi matter. And in somewhat related coverage, "Fresh legal row over Guantanamo; Military lawyers appointed to defend alleged terrorists being held by the US at Guantanamo Bay have expressed growing unease, according to reports."
Posted at 22:33 by Howard Bashman



"Catholic Church Seeks Exemption From Law": David Kravets of The Associated Press has this report on an oral argument that occurred today before the Supreme Court of California. And Howard Mintz of The San Jose Mercury News has an article headlined "Supreme Court road show stops in San Jose; Students witness arguments as Catholic group challenges law requiring employers to cover contraceptives."
Posted at 22:21 by Howard Bashman



"What would Aristotle make of Scalia?" Michael Frost has this essay in the current issue of Legal Affairs.
Posted at 22:15 by Howard Bashman



Available online at law.com: Tony Mauro reports that "Supreme Court Struggles Over Key Church-State Case." And in other news, "4th Circuit Tackles Pivotal Terror Issue; Outcome of Moussaoui's appeal could alter fate of future cases."
Posted at 21:59 by Howard Bashman



"Texas court to rule: Can fiction be libel?" Yesterday's edition of The Christian Science Monitor contained this report about a case to be argued tomorrow before the Supreme Court of Texas. That court provides access to the parties' briefs via this link, and the docket entries can be accessed here. Also available online is a press release entitled "Publishers defend right to satirize public officials."
Posted at 20:42 by Howard Bashman



"Rock of Ages and a Hard Space: The Supreme Court searches for breathing room in its religion cases." Dahlia Lithwick has this report just posted online at Slate concerning today's U.S. Supreme Court oral argument.
Posted at 19:41 by Howard Bashman



"Court Hears Divinity Scholarship Case": NPR's Nina Totenberg offers this very informative report (Real Player required) from this evening's "All Things Considered" about today's U.S. Supreme Court oral argument.
Posted at 19:11 by Howard Bashman



"DoD Announces Detainee Allowed Access to Lawyer": The Department of Defense today issued a press release that begins, "The Department of Defense announced today that Yaser Esam Hamdi, an enemy combatant detained at the Charleston Consolidated Naval Brig in Charleston, S.C., will be allowed access to a lawyer subject to appropriate security restrictions. Arrangements for that access will be developed over the next few days." And The Associated Press has an article headlined "Pentagon: Terror Suspect Can Have Lawyer."
Posted at 19:01 by Howard Bashman



"A family's privacy vs. public's right to know; High Court weighs whether photos of Vincent Foster must be released under the Freedom of Information Act." Warren Richey will have this article in Wednesday's issue of The Christian Science Monitor.
Posted at 19:00 by Howard Bashman



"Supreme Court Weighs Religious Discrimination Case": Charles Lane of The Washington Post has this report on one of the cases argued today at the U.S. Supreme Court.
Posted at 18:57 by Howard Bashman



And speaking of the Fourth Circuit: The Bristol Herald Courier reports that "Feds Say Abingdon Man Threatens To Kill Judge," while The Associated Press reports that "Man arrested for threatening to kill a federal judge."
Posted at 17:33 by Howard Bashman



Tomorrow the U.S. Court of Appeals for the Fourth Circuit will hear oral argument on the federal government's appeal in the Zacarias Moussaoui case: You can access the redacted Brief for Appellant here and the redacted Brief for Appellee here. Half of tomorrow's oral argument will be open to the public, and the other half will be held in private. Relatedly, The Associated Press is reporting that "Oral Arguments to Start in Moussaoui Case."
Posted at 17:21 by Howard Bashman



The Metropolitan News-Enterprise is reporting: In today's issue you can access articles headlined "High Court to Decide Whether Abducted Mexican May Sue; Justices to Determine if Litigation by Man Acquitted in Los Angeles After Seizure at Behest of DEA May Go Forward" and "Supreme Court Declines to Review Ninth Circuit Ruling That Upheld California’s Ban on Assault Weapons."
Posted at 17:14 by Howard Bashman



"Court: No Need to Rehire Recovering Addicts." David G. Savage of The Los Angeles Times provides this report on a decision that the U.S. Supreme Court issued today.
Posted at 17:10 by Howard Bashman



"Supreme Court Weighs Case on State Spending and Religion": Linda Greenhouse of The New York Times has this update on today's U.S. Supreme Court oral argument.
Posted at 17:06 by Howard Bashman



In news from Utah: The Salt Lake Tribune reports that "Green seeks to overturn verdict," while The Deseret Morning News reports that "Green appeal focuses on 'cohabitation.'"
Posted at 16:46 by Howard Bashman



You mean it's already time to start thinking about the January 2004 installment of "20 questions for the appellate judge"? True, it was only yesterday that I posted online what has turned out to be the widely-acclaimed "20 questions" interview with Seventh Circuit Judge Richard A. Posner. But, in under two weeks from now, it will be time for me to forward "20 questions" to the January 2004 interviewee, Tenth Circuit Chief Judge Deanell Reece Tacha.

Chief Judge Tacha will be the first currently-serving chief judge of a federal appellate court to participate in the "20 questions" feature, and thus some of my questions will focus on the duties unique to the position of chief judge. Also, Chief Judge Tacha will be the first judge from the Tenth Circuit to answer "20 questions," so I look forward to asking her why her court isn't enthusiastic about becoming home to Arizona in a Ninth Circuit split, and why political partisans haven't viewed the Tenth Circuit as worthy of having its nominees filibustered. Maybe I will even ask why the Tenth Circuit doesn't post online its decisions each day until 6:20 p.m. mountain time, which is 8:20 p.m. where I live.

As of this moment, of all the federal courts of appeals, I probably know the least about the Tenth Circuit. Thus, I would welcome any and all suggested questions that readers of "How Appealing" wish to offer. You can initiate an email to me by clicking here.
Posted at 16:05 by Howard Bashman



The Associated Press is reporting: You can access online articles headlined "Supreme Court to Decide on Foster Photos"; "Witness: Malvo Wrote Letter Seeking Help"; "U.S. Won't Seek Death Penalty for Accused"; "Witness Cries on Stand at Janklow Trial"; "Changes Sought in Handling Detained Kids"; "Judge Orders School Finance Formula Fixed"; and "Fire Marshal Orders Freeze on Ice Hotel."
Posted at 14:44 by Howard Bashman



Dahlia Lithwick discusses today's religious scholarship oral argument at the U.S. Supreme Court: On NPR's "Day to Day" program. You can listen here (Real Player required).
Posted at 14:14 by Howard Bashman



"Court Looks at Religious Schooling Case": Anne Gearan of The Associated Press provides this report on a case argued today at the U.S. Supreme Court.
Posted at 13:11 by Howard Bashman



"Prosecution concludes in bogus anthrax-threat case": The Philadelphia Inquirer today contains this article.
Posted at 12:02 by Howard Bashman



Dem bones: Today's edition of The Atlanta Journal-Constitution reports that "Daughter loses round in suit over mom's body." And The Associated Press is reporting that "Skeleton Can Stay at Ga. Medical School." Yesterday's ruling of the Court of Appeals of Georgia does not yet appear to be available online.
Posted at 11:40 by Howard Bashman



"Court Rules on Workplace Rights Issue": Gina Holland of The Associated Press has this report on the U.S. Supreme Court's other opinion issued today.
Posted at 11:22 by Howard Bashman



"Court Gives Police Victory in Waiting Time": Gina Holland of The Associated Press has this news from the U.S. Supreme Court.
Posted at 10:59 by Howard Bashman



"Court to Weigh Religious Scholarships": Anne Gearan of The Associated Press provides this report.
Posted at 10:36 by Howard Bashman



Today's U.S. Supreme Court opinions: The Supreme Court of the United States issued two opinions today. Justice Clarence Thomas issued the unanimous opinion (with two recusals) of the Court in Raytheon Co. v. Hernandez, No. 02-749 (syllabus here; opinion here; oral argument transcript here), in which the judgment under review was vacated and remanded. And Justice David H. Souter issued the unanimous opinion of the Court in United States v. Banks, No. 02-473 (syllabus here; opinion here; oral argument transcript here), in which the judgment under review was reversed.
Posted at 10:00 by Howard Bashman



On the agenda: The U.S. Supreme Court will be issuing one or more opinions at 10 a.m. today.
Posted at 09:50 by Howard Bashman



"Court to Weigh Scholarships for Religious Education": Nina Totenberg provided this preview (Real Player required) today on NPR's "Morning Edition."
Posted at 09:45 by Howard Bashman



"Justices to hear case on seizing suspects overseas": The Knight Ridder News Service provides this report on yesterday's developments at the U.S. Supreme Court.
Posted at 09:40 by Howard Bashman



In news from California: In The San Francisco Chronicle, Bob Egelko has articles headlined "State's ban on assault weapons survives; U.S. high court avoids debate on constitutional right to bear arms" and "Atheist dad is allowed to argue pledge case; Justices reviewing 'under God' clause." In The Sacramento Bee, Claire Cooper reports that "Pledge foe to be own lawyer; The Supreme Court allows Newdow to represent himself in the 'under God' case." And Howard Mintz of The San Jose Mercury News reports that "Pledge-ban backer to represent himself; Sacramento dad to face U.S. Supreme Court." And David Kravets of The Associated Press has an article addressing "Does it matter if right to bear arms is individual or collective right?"
Posted at 09:29 by Howard Bashman



In Tuesday's newspapers: In The New York Times, Linda Greenhouse has articles headlined "Reviewing Foreigners' Use of Federal Courts" and "Court to Decide Whether Death Penalty Ruling Is Retroactive." An article reports that "Colorado Court Rejects Redistricting Plan." In business news, "Chrysler Shareholder Says He Was Misled on Merger." In news relating to business travel, "Lawsuits Cast Attention on Passenger Blood Clots." An article reports on "Split Verdicts in Texas Trial of Professor and the Plague." In news from South Dakota, "Neighbors Fill Jury for Congressman Charged in Fatal Crash." In news from Florida, "Cubans on Trial in Case That Led to Crackdown by Castro." In local news, "'Jeopardy' Defense Doesn't Take a Murder Suspect Out of It." An editorial is entitled "Church, State and Education." And letters to the editor appear under the heading "Who Gets to Speak in Abortion Debate?"

The Washington Post reports that "Supreme Court Will Hear Pension-Cutoff Dispute." In other news, "Colorado High Court Stops GOP Redistricting Effort; Democrats Hope Ruling Will Affect Texas Case." In news from Virginia, "Malvo Defense Focuses on Muhammad; Testimony Portrays Loss of Children as Turning Point for Sniper." In business news, "Trial Opens In Lawsuit On the Sale Of Chrysler." In news from South Dakota, "Janklow Advances Medical Defense; Diabetic Reaction Marred Judgment in Fatal Crash, Defense Tells Jury." And an article reports that "Baltimore Sustaining Segregation, Suit Says; Blacks in Public Housing Seek Options."

Finally for now, The Wall Street Journal contains an op-ed by Melanie Kirkpatrick entitled "The Sound of Silence: Why is the press ignoring what the Democratic Judiciary memos say?"
Posted at 06:30 by Howard Bashman



Monday, December 01, 2003
"Lawyer for Christian Causes Brings Outsider's Perspective": In Tuesday's edition of The Los Angeles Times, David G. Savage will have this profile of Jay Alan Sekulow. The article begins, "The nation's leading lawyer for evangelical Christians was born and raised a Jew in Brooklyn, but decided in college that Christ was the Messiah."
Posted at 23:50 by Howard Bashman



In Monday's newspapers: In The New York Times, Neil A. Lewis reports that "U.S. in Talks to Return Scores Held at Base." In other news, "New State Laws May Strengthen Jackson Prosecution." And an obituary is headlined "Raymond J. Pettine, 91, Judge in Rhode Island Prison Case, Dies."

The Washington Post reports that "Jailed Muslim Had Made a Name in Washington; Alamoudi Won Respect as a Moderate Advocate." In other news, "Army Colonel At Prison Charged; Classified Material Allegedly Taken." An article reports that "Lawmaker's Trial Starts Today In Crash That Killed Cyclist; S.D. Constituents' Support for Rep. Janklow Is Waning." In local news, "Va. Adultery Case Roils Divorce Industry; Conviction Draws Attention to Little-Used Law." An editorial is entitled "A Twist in the Brady Law." And columnist William Raspberry has an op-ed entitled "Tale of a 'Stigmaphobe.'"

The Boston Globe reports that "On Hill, relations take turn for worse." The second article in a three-part series is headlined "A priest by turns demanding and timid trod prison's path." In news relating to gay marriage, "In lawmaker poll, few back limiting marriage; Political debate shifts to accommodate SJC" and "Bishops assail SJC same-sex marriage ruling." And an editorial is entitled "A deal for asbestos victims."

The Washington Times reports that "Terror detainees will be released." An article reports that "Legislators discuss gay 'marriage.'" In other news, "Malvo's lawyers seek Muhammad testimony." And Nat Hentoff has an op-ed entitled "The invisible Supreme Court."

The Los Angeles Times reports that "Hometown Jury to Decide Congressman's Fate; William J. Janklow, a larger-than-life political figure in South Dakota whose speeding habit was well-known, faces a manslaughter charge."

And finally, The Christian Science Monitor contains an article headlined "Texas court to rule: Can fiction be libel?"
Posted at 23:05 by Howard Bashman



"Federal panel quashes subpoenas of DeLay, Barton in Texas redistricting case": The Associated Press provides this report.
Posted at 23:04 by Howard Bashman



Available online at law.com: Jason Hoppin reports that "High Court Gorges on 9th Circuit Rulings." In news from Florida, "Scrutinizing 'Supersealed' Cases; Judges, lawyers question secrecy surrounding case linked to terrorism probe." And Philip Allen Lacovara has an essay entitled "The Incredible Shrinking Court."
Posted at 23:00 by Howard Bashman



In Tuesday's edition of The Washington Post: Charles Lane has a front page article headlined "An Allegiance to Dissent: Man's Challenge to 'Under God' Is One of Many -- Including a Pivotal Custody Battle Over Daughter." And inside the paper, Lane has two other articles: "High Court to Clarify Ruling on Capital Punishment; Justices Take Up Cases on Judge-Only Sentencing and a Death Row Inmate's Civil Rights" and "High Court to Consider Arrests Abroad; Alien Tort Act Used in War on Terrorism, Suits for Damages in Human Rights Cases."
Posted at 22:44 by Howard Bashman



"Supreme Court grants Sacramento atheist right to argue pledge case; One year after passing bar exam, dad heads to legal limelight": Howard Mintz has this report in The San Jose Mercury News.
Posted at 21:34 by Howard Bashman



The Associated Press is reporting: Available online are articles headlined "Plague Scientist Cleared of Main Charges"; "Utah Polygamist Invokes Ruling on Gay Sex"; "Colo. Court Nixes GOP Redistricting Plan"; "Muhammad Ex-Wife Testifies at Malvo Trial"; and "Man Guilty of Amputate Puppy Tail Attempt."
Posted at 21:30 by Howard Bashman



"A case of faith and college aid: The high court Tuesday considers whether a religion student can be denied state funds." Warren Richey will have this article in tomorrow's issue of The Christian Science Monitor.
Posted at 18:03 by Howard Bashman



Reader mail: Thanks to all who emailed to express how much they enjoyed today's "20 questions for the appellate judge" interview (accessible here) with Seventh Circuit Judge Richard A. Posner. To give just one example, a reader who attends the University of Pennsylvania Law School writes:
I'm writing to say thank you for publishing the Posner interview and to call your attention to the newest description of your blog on another blog (Volokh Conspiracy @ 5:10 pm today).

The Posner interview lived up to the hype and was probably the best one yet. I particularly like how you were able to ask, in true exam format, 40 questions of Judge Posner. As a 2L student looking forward to clerking after law school, I often wonder what federal judges are like, personally and professionally, and I think that your 20 questions feature is the best source of information on this front, so thank you and keep up the good work.
Well, thank you for those kind words. And thanks to Eugene Volokh for his kind thoughts, expressed here.
Posted at 17:55 by Howard Bashman



Fourth Circuit holds that student who wishes to wear NRA t-shirt in Virginia middle school was entitled to preliminary injunction against prohibition in school's dress code policy: 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. Law Professor Eugene Volokh had a post about this case back in September 2002, and he also provides photos of the t-shirt in question. Other coverage of this case is available here, here, and here.
Posted at 14:45 by Howard Bashman



What the Heck? The other case argued in the U.S. Supreme Court today presented a question that the U.S. Court of Appeals for the Third Circuit appointed me to argue on behalf of an incarcerated pro se litigant back in July 2001. The order granting certiorari in the case argued today (see page 2 of this PDF document) phrased the questions presented as follows:
1. Whether a plaintiff who wishes to bring a Sec. 1983 suit challenging only the conditions, rather than the fact or duration, of his confinement, must satisfy the favorable termination requirement of Heck v. Humphrey. 2. Whether a prison inmate who has been, but is no longer, in administrative segregation may bring a Sec. 1983 suit challenging the conditions of his confinement (i.e. his prior placement in administrative segregation) without first satisfying the favorable termination requirement of Heck v. Humphrey.
In September 2001, I filed my Brief for Appellant in the Third Circuit appeal presenting essentially the same questions. I had hoped that perhaps the appeal I was appointed to handle would bring the circuit split before the U.S. Supreme Court for resolution. But, the Commonwealth of Pennsylvania's brief on appeal conceded that Heck did not provide a basis for dismissing my client's suit, and thereafter the Third Circuit agreed, reversing the order that had dismissed my client's civil rights claims. Although my Brief for Appellant is now more than two years old, I think that it provides a useful overview of the arguments in favor of reversal in the case in which the Supreme Court heard argument today. Also available online are the Brief for Petitioner and the Brief for Respondent in the case argued today.
Posted at 14:15 by Howard Bashman



Is the U.S. Postal Service a floor wax or a dessert topping? Skip Oliva attended this morning's oral argument at the U.S. Supreme Court and provides this report.
Posted at 14:00 by Howard Bashman



"Once again litigants' insouciance toward the requirements of federal jurisdiction has caused a waste of time and money." So begins an opinion on behalf of a unanimous three-judge panel that Seventh Circuit Judge Frank H. Easterbrook issued today. The appeal in question followed a jury trial in federal district court. The second to last paragraph of the opinion states:
One more subject before we conclude. The costs of a doomed foray into federal court should fall on the lawyers who failed to do their homework, not on the hapless clients. Although we lack jurisdiction to resolve the merits, we have ample authority to govern the practice of counsel in the litigation. See, e.g., Willy v. Coastal Corp., 503 U.S. 131 (1992); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393-98 (1990); Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073 (7th Cir. 1987). The best way for counsel to make the litigants whole is to perform, without additional fees, any further services that are necessary to bring this suit to a conclusion in state court, or via settlement. That way the clients will pay just once for the litigation. This is intended not as a sanction, but simply to ensure that clients need not pay for lawyers' time that has been wasted for reasons beyond the clients' control.
The complete opinion -- which recommends that lawyers "use the Internet." -- can be accessed at this link.
Posted at 13:30 by Howard Bashman



Today is "20 questions for the appellate judge" day at "How Appealing": I posted online at midnight this morning the December 2003 installment of "20 questions for the appellate judge" featuring Seventh Circuit Judge Richard A. Posner. You can access the interview either by scrolling down this page a bit or by clicking here.
Posted at 12:30 by Howard Bashman



Bedbugs bite: Jan Crawford Greenburg, who covers the U.S. Supreme Court for The Chicago Tribune, is featured in an audio report (Real Player required) entitled "Bedbug Ruling" from Saturday's "Weekend Edition" program on NPR. (Via "The Indiana Law Blog.") You can access my original report on the ruling of the U.S. Court of Appeals for the Seventh Circuit at this link.
Posted at 12:20 by Howard Bashman



The Philadelphia Inquirer is reporting: In today's newspaper, you can access articles headlined "Judge's departure would be 'a big loss'; Juan R. Sanchez has been nominated for the federal bench. The county GOP is mulling over his successor" and "An immigrant who mastered both language and the law; The incoming leader of the Phila. Bar Association struggled with English at age 7. By high school, he was a top orator."
Posted at 12:15 by Howard Bashman



Romeo Void's lead singer doesn't much like the U.S. Supreme Court: You can view, and bid on, a piece of artwork she has created to benefit People For the American Way via this link at eBay.
Posted at 12:11 by Howard Bashman



"Oil-gas giant faces landmark trial over slavery in Myanmar": The Seattle Post-Intelligencer today contains this article.
Posted at 12:08 by Howard Bashman



"Conservatives, Federalism, & Consistency: Supporters of federal action on marriage and abortion are not hypocrites." Law Professor Richard W. Garnett has this essay today at National Review Online.
Posted at 12:06 by Howard Bashman



Attorney for the federal government who admits at Eighth Circuit oral argument that he doesn't read "How Appealing" loses that case on appeal: Today the U.S. Court of Appeals for the Eighth Circuit issued its opinion in Advanta USA v. Chao. You can access my report from September 2003 on the oral argument in that case -- in which one of the Eighth Circuit's judges asked the lawyer for the federal government whether that lawyer reads "How Appealing" -- at this link.
Posted at 11:55 by Howard Bashman



"Court: Pledge Critic Can Represent Self." The Associated Press provides this report from the U.S. Supreme Court.
Posted at 11:34 by Howard Bashman



"Muhammad Won't Testify at Malvo Trial": The Associated Press provides this report.
Posted at 11:05 by Howard Bashman



Today's U.S. Supreme Court Order List: Today's Order List can be accessed at this link. The Court granted review in six new cases and entered an order that will allow Michael Newdow to argue pro se his case challenging the Pledge of Allegiance. The Court also declined to review the Ninth Circuit's decision in Silveira v. Lockyer, a case presenting the question whether the Second Amendment confers an individual right to bear arms.

From The Associated Press, Anne Gearan reports that "Court to Clarify on Juries Imposing Death"; "Supreme Court to Consider Pension Rights"; and "Court Rejects Appeal Over Patent Rights." Gina Holland reports that "Court Intervenes in Kidnapping Case"; "Supreme Court Sidesteps Gun Rights Case"; and "Court to Look at Workplace Harasssment."

Reuters reports that "High Court Won't Review Ban on Assault Weapons"; "Court to Decide How Death Penalty Ruling Applies"; "Court to Decide Kidnapped Mexican Doctor's Suit"; and "Appeal Denied on Earnhardt Autopsy Photos."
Posted at 10:00 by Howard Bashman



"Court Says Redistricting Unconstitutional": The Associated Press provides this early report on today's ruling by the Supreme Court of Colorado. You can access the ruling at this link.
Posted at 09:59 by Howard Bashman



"Ten Commandments out of place at police station, agnostic says": The Seattle Post-Intelligencer today contains this report.
Posted at 09:57 by Howard Bashman



"20 questions" with Seventh Circuit Judge Richard A. Posner: I posted online at midnight this morning the December 2003 installment of "20 questions for the appellate judge." You can access the interview either by scrolling down this page a bit or by clicking here.
Posted at 08:50 by Howard Bashman



On the agenda: Today at 10 a.m. the Supreme Court of the United States will issue an Order List.
Posted at 08:50 by Howard Bashman



In The San Francisco Chronicle: Today Bob Egelko reports that "Prescription law challenge hits court; Catholic agency objects to having to cover contraception." And yesterday's newspaper contained an article headlined "So far, Jackson case all smoke, no fire; Past allegations unlikely to be used as evidence."
Posted at 08:45 by Howard Bashman



"High court may hear Cheney appeal; Energy case focuses on confidentiality, presidential powers": Lyle Denniston has this article in today's issue of The Boston Globe.
Posted at 08:44 by Howard Bashman



"The Power of Unpredictability: Justice Sandra Day O'Connor's numerous 'swing-vote' decisions have kept U.S. Supreme Court watchers guessing." Dahlia Lithwick today has this op-ed in The Los Angeles Times.
Posted at 07:47 by Howard Bashman



"Harvard 1L's Church-State Case Goes to High Court": Tony Mauro today has this report online at law.com. And The Harvard Crimson today reports that "Top Court To Hear Student's Argument."
Posted at 06:54 by Howard Bashman



"A Guantanamo-Size Hole in the Constitution": Joanne Mariner has this essay online at FindLaw today.
Posted at 06:52 by Howard Bashman



Yes, The New Yorker: Jeffrey Toobin has an article headlined "The Great Election Grab: When does gerrymandering become a threat to democracy?" in the December 8, 2003 issue of that magazine.
Posted at 06:44 by Howard Bashman



20 Questions for Circuit Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit: "How Appealing" is so very pleased that Circuit Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit has agreed to participate in this Web log’s monthly feature, "20 Questions for the Appellate Judge."

According to a biography accessible online here, Judge Posner was born in New York City in January 11, 1939. He attended undergraduate school at Yale, where he was elected to Phi Beta Kappa his junior year and graduated summa cum laude. He then attended law school at Harvard, where he served as president of the Harvard Law Review and graduated first in his class. After law school, he clerked for Associate Justice William J. Brennan, Jr. of the Supreme Court of the United States. Thereafter, Posner served from 1963-1965 as assistant to Commissioner Philip Elman of the Federal Trade Commission, from 1965-1967 as assistant to Solicitor General Thurgood Marshall, and from 1967-1968 as general counsel to President Lyndon B. Johnson's Task Force on Communications Policy.

From 1968-1969, Posner taught as an associate professor at Stanford Law School. In 1969, he became a professor of law at the University of Chicago, a job he held until 1981 when he was confirmed to the bench. Since 1981, Judge Posner has continued to teach at the University of Chicago Law School part-time as a senior lecturer, and this Web page provides many more details about his academic and professional accomplishments.

On October 27, 1981, President Ronald W. Reagan nominated Posner to fill a vacancy on the U.S. Court of Appeals for the Seventh Circuit. In less than one month's time, the U.S. Senate confirmed him for the post. From 1993 through 2000, he served as the Seventh Circuit's Chief Judge.

Judge Posner has his chambers in Chicago, which is where the Seventh Circuit has its headquarters.

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

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

Most favorite aspects: the variety of cases, which has greatly broadened my knowledge of law, government, and human nature, and given me the opportunity to write judicial opinions, a rhetorical exercise that I greatly enjoy along with the give and take of oral argument. Least favorite aspects of the job: some of the cases are dull, and the average quality of briefs is pretty low.

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

Oliver Wendell Holmes (who was both), probably the only genius in the history of American law, whom I greatly admire for his candor, eloquence, wit, toughmindedness, and judicial creativity. Think only of his labor opinions for the Massachusetts Supreme Judicial Court, his Supreme Court dissents in Abrams and Lochner, and in other free speech and substantive due process cases, and a number of great tort cases.

3. How did you come to President Reagan’s attention as a potential Seventh Circuit nominee, when did you first realize that you might be interested in becoming a federal appellate judge, and what concerns if any did you have in 1981 about giving up some or all of your other work to become a judge?

I believe that William F. Baxter, the head of the antitrust division and a former colleague of mine at Stanford, suggested my name. I hadn't previously had any thought of becoming a judge. My principal concern in accepting the judgeship was the financial sacrifice, because I had a large income from consulting.

4. The confirmation process that nominees for U.S. Court of Appeals vacancies must undergo is quite a bit more politicized today than when you experienced it in 1981. Does the current tenor of the confirmation process cause you any concern? Had your nomination come before today's U.S. Senate, do you fear that it would have been filibustered? What if anything realistically can be done to improve the nomination and confirmation process, or do you believe the process is working as it should given the significant role that you say an appellate judge's ideology plays in reaching decisions?

I would have some trouble being confirmed today, though I might squeeze through the way Mike McConnell did, with support from liberal law professors like Cass Sunstein. (My notorious "baby selling" article had been published before I became a judge, yet didn't block me. And, by the way, let me take this opportunity to correct the record: neither in the article, nor in my subsequent writing on family law and economics, have I ever advocated "baby selling." I have merely pointed out the consequences of the present legal regime, in which monetary transfers incident to adoption are (nominally) capped, and have suggested, by way of experiment only, that some adoption agencies be permitted to pay women contemplating abortion to carry the fetus to term and put the newborn child up for adoption. I continue to think it would be a worthwhile experiment.) I don't object to the fact that Senators are concerned about the ideology of judicial candidates; the President is concerned, so why shouldn't the Senators be? Anyone who is realistic about the American judicial process knows that ideology affects decisions, especially the "hot button" decisions that engage the attention of politicians; and Senators are politicians. What is objectionable about the current process is the length of time it takes. I don't see why it couldn't be compressed. Between the time that I agreed to accept appointment as a judge, which was near the end of June 1981, to the time I was confirmed by the Senate, which I think was sometime in November, about five months elapsed, and I don't see why the process should take any longer than that.

5. You have for many years described your judicial philosophy as one of "judicial pragmatism." For those readers of this interview who have not previously encountered your description of what that means, would you please explain the term and how your approach to judging works in practice.

There isn't space enough for me to answer this question fully, and instead let me refer readers to my book Law, Pragmatism, and Democracy (Harvard University Press, 2003), and to an earlier book, Overcoming Law (Harvard University Press, 1995). The essence of judicial pragmatism, or at least my version of it, is recognition that difficult cases--and they are legion in our system--cannot be resolved at the appellate level by a distinctive process of reasoning called "legal reasoning," emphasizing careful parsing of text and scrupulous adherence to precedent and an analytical method that resembles deductive logic. Those methods do not resolve difficult legal cases, but merely conceal the true springs of decision in such a case, which involve a careful examination of the practical consequences of a decision for or against the appellant. The pragmatist emphasizes the continuity of facts and law, and the importance of common sense, experience, values, and yes, ideology in resolving cases when the conventional materials of judicial decision making--authoritative texts, precedent, deduction, and so forth--run out, as they so frequently do. This is not to deny the virtues, which are thoroughly pragmatic, of logic, fidelity to text, and adherence to precedent, techniques that can resolve most cases--only not the most challenging ones. The pretense that they can is particularly threadbare in the Supreme Court, which decides a very high percentage of cases that are in fact indeterminate from the standpoint of orthodox legal analytics. In any split decision by the Supreme Court, to say that one side is "right" and the other "wrong" is usually a naïve reaction.

6. A 1998 study of federal appellate judicial opinions issued between 1982 and 1995 found that your opinions were, by an "unusual" statistical margin, cited by judges in other circuits more often than opinions written by any other judge. The study argued that citation by judges in other circuits is the best indicator of judicial influence, making you the most influential federal appellate judge in the country. Given that you are yourself a student of citation studies -- having prepared them to analyze the influence of opinions by Cardozo and Hand, and having critiqued citation studies elsewhere -- to what do you attribute your top ranking? To your practice of writing opinions yourself, to your issuing more opinions than other judges, to your wide-ranging extracurricular writings and speeches, or to something else entirely?

I don't see how I can answer this question without seeming to brag. You really ought to ask the judges who cite me why they do so. Obviously one factor in my being cited a lot is that I write more opinions than other federal appellate judges, and it may help as well that I do write my own opinions and that I try to be clear and frank and practical, and if I am right that pragmatism is the secret story of our courts these are qualities in a judicial opinion that should appeal to other judges.

7. Would Justice Posner of the U.S. Supreme Court have been as distinguished a jurist as Judge Posner of the U.S. Court of Appeals for the Seventh Circuit, keeping in mind, to pick one example, how Justice Cardozo's output on the U.S. Supreme Court differed from Judge Cardozo's output on the New York Court of Appeals?

Cardozo didn't have a chance to show his stuff on the Supreme Court. He served for only six years, and actually did quite well--his opinions are heavily cited, as I pointed out in my book Cardozo: A Study in Reputation (University of Chicago Press, 1990). Because he served three times as long on the New York Court of Appeals, it is inevitable that his work on that court should have overshadowed his work on the Supreme Court. I have no idea how I'd do as a Supreme Court Justice. I think the Court is short in political experience, and I would add nothing from that angle. I also note that judges who do well on lower courts sometimes disappoint as Supreme Court Justices.

8. How have you benefited in your work as an appellate judge from serving on occasion by designation as a trial court judge? Might not trial court judges likewise gain worthwhile insights by serving by designation as appellate court judges? Why has the Seventh Circuit not recently allowed its trial court judges to have that experience?

I think I've learned a lot from my ventures into the trial court, particularly about the limitations of the adversarial model of factfinding, about the psychological pressures of trials on district judges, and about the differences between the facts as they are developed in a trial and the facts as they appear in the briefs and record of a case when it reaches the court of appeals. The academic work that I've done on the law of evidence, and, more recently, academic work that I've done with the economist William Landes on patent law, and still more recent academic work that I am doing on the law's response to the complexities of modern science, stem directly from my experiences presiding at trials.

I have no objection in principle to designating district judges to sit on the court of appeals. The practical objection to any visiting judges, trial or appellate, is that by increasing the de facto size of the court the use of visiting judges makes it more difficult to maintain a reasonable uniformity of approach and decisions--to anticipate the next question.

9. What is your view on whether the Ninth Circuit -- which now is authorized to have twenty-eight active judges and might soon be expanded to thirty-five active judges -- should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best? Also, in your June 2000 article titled "Is the Ninth Circuit too Large: A Statistical Study of Judicial Quality" published in the Journal of Legal Studies, you concluded that the Ninth Circuit's size was not the direct cause of that circuit's uniquely high rate of summary reversals by the U.S. Supreme Court. What else may explain the Ninth Circuit's summary reversal rate on which your article focused?

I think it should be split, not so much because the size per se of an appellate court is inimical to quality, although I think it is, though I cannot prove it, as you note; the larger the court, the more difficult to maintain coherence and collegiality. The particular virtue of splitting would be that it would remedy the worst feature of the Ninth Circuit, namely its bobtailed en banc procedure, whereby the chief judge plus 10 judges chosen at random constitute the en banc panel, leaving 17 judges out, who may include all the judges of the original panel! It is an absurd system, which encourages fission because the three-judge panel that decides the case initially knows that, with luck, the en banc panel will not overturn the three-judge panel's decision even if the decision is contrary to the views of the court's majority as a whole. In the opposite case, in which an unrepresentative en banc panel overturns a representative three-judge panel, the judges of the court as a whole are unlikely to take the en banc decision entirely seriously in later cases. So you have a formula for infighting and doctrinal incoherence; and remember that the pragmatist does not deny the value of adherence to precedent in most cases. The article of mine that you mentioned made I think a compelling case that the Ninth Circuit is performing badly, a case reinforced by the impressions that almost everyone has who appears before the Ninth Circuit or reads its opinions.

10. Your opinions tend to be a pleasure to read, which is something that I cannot honestly say of the opinions written by the vast majority of your colleagues on the U.S. Courts of Appeals. Why, in your view, do not more of your colleagues endeavor to write opinions that are interesting and accessible? And now that you have written somewhere in the ballpark of 2,000 opinions, please list between one and five of them that are your all-time favorites.

I'm glad you like my opinions, but of course other judges also write opinions that are interesting and accessible. (Not that you said I did; but I wish to be clear on the point.) In general I think you'd find that the most interesting and accessible opinions are those that are judge-written rather than clerk-written, or if the clerk wrote a first draft the judge rewrote it thoroughly. The reason is not that the judges are smarter than the law clerks, though obviously they are more experienced, but that law clerks write as it were defensively, conscious of their inexperience and reluctant to produce something that looks like an individual product. Clerk-written opinions tend to a dreary uniformity and often fail to disclose the considerations that actually moved the court to its decision.

I can't pick out my five favorite opinions; that would require me to have all 2000-odd in my head, or to reread them all, which would be impossible. It's almost as if you were asking me to choose among my children. But I'll name a few that I think of fondly, most of which involve art (in however debased a sense) and intellectual property: Mucha, Piarowski, Gracen, Douglass, Nelson, and my absurdly frequent beanie-baby opinions. I would also count among my favorites several of my tort and contract opinions, my dissent in the partial birth abortion case (Hope Clinic), some of my class-action opinions, like Rhone-Poulenc, my recent IP opinions in Apotex (a district court opinion) and Aimster, my privacy opinion in Haynes, and my recent antitrust opinion in the High Fructose case--but I could extend the list quite a bit, to include a number of tax, ERISA, religion, and Indian cases, without going back and reading all 2000+.

11. You were criticized in some quarters for writing and speaking publicly about the Clinton-Lewinsky matter before it was known whether criminal charges against President Clinton would be pursued. Were your critics correct that your comments were in violation of the constraints that apply to federal judges? Are the existing rules clear enough concerning what matters of public interest sitting federal judges may comment on? And finally, if you could scrap the current system and replace it with a set of rules that made the most sense to you, what rules would you choose?

I think the current rules are fine. A judge is not permitted to comment publicly (except in a classroom) on a pending or impending case. I interpret "impending" narrowly, to mean a case that is about to be filed. Interpreted broadly, to mean a case that may someday be filed, it would gag judges, because almost no public issue is not a candidate for an eventual lawsuit. By the time my book on the Clinton-Lewinsky scandal and its aftermath was published, the impeachment trial had ended, in Clinton's acquittal. And while it was theoretically possible that he would be indicted, the probability was remote, and of course he was not, in the event, indicted. I took pains in the book to make clear that in the unlikely event of further proceedings of some sort, the decision would be based on the record compiled in those proceedings rather than on the record available to me when I wrote my book.

12. What advice do you have for lawyers who practice before your court about how they could improve the quality of their written briefs and their oral arguments? Also, a Westlaw search indicates that you may have argued several U.S. Supreme Court cases long before you became a judge. Which argument of yours would you rank as your best performance at the lectern, and how good of an appellate oral advocate were you?

My advice for lawyers practicing before me and my colleagues is threefold: always explain the purpose of a rule that you want us to apply in your favor, because the purpose of a rule delimits its scope and guides its application; always give us practical reasons for the result you are seeking; and don't overestimate the knowledge that an appellate judge brings to your case, because we have very little time to prepare for argument in depth, and the breadth of jurisdiction of the federal courts is such that we cannot possibly be experts in all or most of the fields out of which appeals arise.

I argued six cases when I was in the Solicitor General's office (1965–1967) (and one later). Two of the antitrust cases, Von's and Schwinn, that I argued when I was in the Solicitor General's office were the highlights of my brief career as an appellate advocate. I won't try to assess my performance in that role. My batting average was .600.

13. In the February 2003 installment of my monthly appellate column, I evaluated the quality and usefulness of federal appellate court Web sites. I ranked the Seventh Circuit's Web site as one of the two best, because of the easy access the site provides not only to published opinions but also to briefs, oral argument audiotapes, and free docket entry information. What role, if any, did you play in making the Seventh Circuit's Web site such a useful resource? Who else was involved in the effort? And please explain how and why the Seventh Circuit continued to offer online docket entry access free of charge, even after every other federal appellate court decided to follow the Judicial Conference's edict to charge a per-page access fee.

I can't take any credit for the Web site. The credit belongs to Gino Agnello, formerly the head of the Seventh Circuit's IT staff and now the court's Clerk, but still very active in technical matter, and the members of the IT staff, now headed by Mark Knoll. I don't remember why we decided not to charge an access fee, although I supported the decision when I was chief judge.

14. I must have read too many Judge Posner opinions before starting my judicial clerkship for a judge serving on the U.S. Court of Appeals for the Third Circuit, because early on I added into a draft opinion a passage that would have ordered an attorney to show cause for violating an important rule. I recall my judge's response was that we don't treat attorneys that way in the Third Circuit. Yet even as a practitioner I remain envious of the Seventh Circuit, where the rules are enforced almost mercilessly and amicus briefs are disdained greatly. Please say a few words to your colleagues on other circuits about why attorneys should be publicly called to task for violating court rules and why it makes sense to strictly referee motions for leave to file amicus briefs instead of letting all such briefs be filed and simply ignoring the unhelpful ones?

I think it's enormously important to maintain discipline in a court's bar. The rules have a purpose, most of them anyway, and if the judges allow the lawyers to flout them, the lawyers will flout them, gumming up the works. And lawyers who know they can get away with violating the court's rules develop a contemptuous attitude toward the court, reflected in their briefs and oral arguments, and contributing to docket congestion. Federal judges who do not enforce rules treat lawyers as if they were the judges' constituents, which they are not, because we are not elected officials.

Amicus curiae briefs are for the most part a complete waste of time and a complete waste of the amici's money. If an amicus curiae has some distinctive information or perspective to contribute to the consideration of the appeal, fine, but 99 out of 100 times the amicus curiae briefs filed with our court rehash the arguments in the brief of the party whom the amicus is supporting. My views on amicus curiae briefs are set forth at greater length in a recent opinion, Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542 (7th Cir. 2003) (in chambers).

15. Time for a law and economics question. Is the salary now paid to federal appellate judges too low? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

I think the salary is too low, not because I consider myself underpaid, but because the current salary makes it difficult to hire successful lawyers from elite law firms, especially in cities in which the cost of living is very high, such as New York; and as a result the diversity of the federal judiciary is reduced along with the judiciary's sophistication in commercial cases. Not that there aren't plenty of qualified candidates even at the present salary level, which is about that of a second-year associate at a New York firm; I am concerned specifically about the judiciary's lacking the particular kinds of knowledge, experience, and perspective that the elite practitioners at such firms could bring to the court. But in any event there ought certainly be a cost of living differential to reflect the very large difference in the cost of living between large cities and semi-rural areas. That would alleviate the problem to a certain extent.

16. 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?

I don't like the idea of allowing unpublished opinions to be cited, which is another way of saying that I think courts should be permitted to designate some of their decisions as nonprecedential and therefore not worth citing. (Apparently under the new rule, we won't be allowed to forbid citation of unpublished opinions, but will be allowed to deny precedential force to them, a combination that seems to me to make no sense.) Caseload pressures are such that judges cannot give adequate scrutiny to every decision. I predict that if courts were forbidden to designate certain decisions as nonprecedential, they would cease issuing reasoned opinions in such cases but instead would just say "Affirmed," which is already the practice in the busier circuits. Our court has always given reasons for its decisions, but if those reasons can come back to haunt us, even though they were actually reasons furnished by staff rather than by judges, we might stop doing so.

17. The Economist magazine recently reviewed your latest book, "Law, Pragmatism, and Democracy." The review, accessible here, describes you as "loony," states that your effort to explain your views suffers from their "incoherence," and then concludes with the following: "More troubling still is Mr Posner's view that judges should impose their own policy choices on a case whenever ambiguity in the law gives them the discretion to do so. Many judges do this, though nearly all deny it, justifying their decisions instead by reference to laws and court precedents. Mr Posner thinks this is usually legal flim-flammery, and that frank judicial activism would be better. Few people, on the right or the left, would swallow this. Mr Posner is a spirited analyst of contemporary politics, and he can be an entertaining and provocative thinker. His account of the controversial Supreme Court decision awarding George Bush the presidency is well worth reading. But as his book also makes clear, he is not much of a legal theorist, and he might have made a better legislator, academic or even political campaigner than a judge." Your response?

The (anonymous) author of the review doesn't know anything about the American judiciary (the Economist is an English magazine), and I would be surprised if he or she had ever read my opinions, or for that matter Law, Pragmatism, and Democracy. It is an academic book that the reviewer was incompetent to evaluate, and the use of the word "loony" reveals the reviewer's level of taste and sophistication. If you want to read a fair-minded review of the book, read the review in the New York Times Book Review (I think in September) by the distinguished English (!) philosopher Alan Ryan. [Editor's note: Alan Ryan's review can be found at this link.]

18. In December 2001, The New Yorker magazine published a profile of you. Were you pleased with how that turned out, and did the profile contain anything about you that you found to be incorrect or misleading? Also, my audience would be disappointed if I did not ask you to mention your celebrity cat.

I never miss an opportunity to mention Dinah, who is not only a celebrity, but is pedigreed, a beauty, and a serial mouser (52 mice to her credit), and in all these respects very much the superior of her nominal master. The New Yorker profile, which is by a fine journalist, Larissa MacFarquhar, was witty, perceptive, and on the whole accurate, though there are a few points that I would take issue with (including the reference--inevitable, I suppose, in any article about me in the popular media--to baby selling.) It is critical, and makes me out to be rather an eccentric, but criticism is bracing and praise dangerously relaxing, and since the Economist thinks I'm loony, I am happy to be thought merely eccentric. MacFarquhar also exaggerated my role in the law and economics movement, but that's fine!

19. In January 2004, you will turn 65 years old, thereby qualifying to elect senior status if you wish. What are your thoughts about when you would consider cutting back on your workload at the court, providing you with more time to pursue other interests? Also, in March 2003, The Harvard Crimson mentioned you as among the candidates under consideration to become the next Dean of Harvard Law School. As you know, that job has since gone to someone whom the U.S. Senate did not get around to confirming as a federal appellate judge. Had you been offered the job of Dean of Harvard Law, would you have accepted?

I have no interest in taking senior status. At some point I will run out of steam, but not I think on my sixty-fifth birthday.

I would not enjoy being an academic administrator.

20. If you could add a few more hours to each day, how would you spend them?

I'd like to have more time to read.
Posted at 00:00 by Howard Bashman




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Heh. Indeed.

Hit & Run

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Hoplites

Hose Monster Blog

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Ichiblog

The Importance Of

inappropriate response

Inchoate

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Insolvent Republic Of Blogistan

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little green footballs

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moxie.nu | blog

ms. morality

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The Neutral Zone Trap

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Notes from the (1L) Underground

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PIKER

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RiShawn Biddle's The Usual Suspect

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Running With Lawyers

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A Sassy Lawyer in Philippine Suburbia

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Second Circuit News

Second p0st

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Seeking for Righteousness

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skippy the bush kangaroo

The Slithery D

Snark Attack

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South Dakota Politics

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SteveSachs

Stop the Bleating!

sugarmama

Sugar, Mr. Poon?

Sugarpoet.com

superficial intelligence

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SW Virginia law blog

Taegan Goddard's
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trr

The Truth Laid Bear

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uggabugga

unbillable hours

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Unlearned Hand

Unqualified Offerings

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UXblog

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Waddling Thunder

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The Week in Review

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Will Work for Favorable Dicta

The Wired GC

WOIFM

Woman of the law

Xrlq's Blog

A Yank in Oz

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Yourish.com

zonitics.com

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