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Saturday, January 31, 2004
The Detroit Free Press is reporting: Today's newspaper contains articles headlined "Questions cloud terror case; High-profile prosecution receives new scrutiny" and "Judge gives dates trial may resume; Kerkorian, DCX could be back in court within weeks."
Posted at 21:10 by Howard Bashman
"Asylum backed on China's birth-control policy; U.S. appeals court rules for woman who fled after threats": Bob Egelko of The San Francisco Chronicle today has this article on a ruling that an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit issued on Thursday. The vote on the outcome was 10-1. Circuit Judge Andrew J. Kleinfeld begins his dissenting opinion by asking "If the Supreme Court speaks, and lower courts do not hear it, does it make law?" Another article by Egelko in today's Chronicle bears the headline "U.S. must pay immigrant for illegal removal." Posted at 20:57 by Howard Bashman In Saturday's newspapers: In The New York Times, Adam Liptak and Michael Moss have an article headlined "In Trial Work, Edwards Left a Trademark." In news from Delaware, "Judge Says DaimlerChrysler Trial Will Resume." An article reports that "German Court Convicts Internet Cannibal of Manslaughter." In business news, "G.M. Nears Settlement in Lawsuit Over Lending." And in local news, "Judge Defends His Record at Hearing on Charges." The Washington Post reports that "Military To Watch Prisoner Interview; Hamdi's Lawyer Resents Monitoring." In local news, "Lentz Prosecutor Volunteers For Probe on Banned Evidence." An article reports that "White House Holding Notes Taken by 9/11 Commission; Panel May Subpoena Its Summaries of Bush Briefings." In other news, "FBI Investigates Head of Detroit Office; Agent Reassigned as Agency Looks Into Handling of Confidential Informants." In business news, "GMAC Agrees to Settle Racial-Bias Lawsuit; Lender Accused of Charging Blacks More." And editorials are entitled "Time for Tribunals" and "The Marriage Experiment." Posted at 20:05 by Howard Bashman "Drop 'Christian' from Constitution?" The Associated Press provides this report from Vermont, where the state Constitution provides that "every sect or denomination of Christians ought to observe Sabbath or Lord's Day, and keep up some sort of religious worship, which, to them, will seem most agreeable to the revealed will of God." Posted at 19:50 by Howard Bashman Now available online: The House Judiciary Committee has posted online the "serial print" of the hearing held in October 2003 on a bill that would divide the U.S. Court of Appeals for the Ninth Circuit. According to the individual who emailed news of the document's appearance online: The "serial print" includes a great deal of material that was not available at the time of the hearing, including a vigorous response by Chief Judge Schroeder to some of the arguments made at the hearing, a very interesting letter in support of the bill from Judge Tallman, and a strong statement in opposition from the American Bar Association. And of course it includes the full Q&A between Committee members and witnesses, the last part of which didn't make it to the C-Span broadcast.You can access the document at this link (173-page PDF file). Posted at 19:39 by Howard Bashman The Associated Press is reporting: Anne Gearan reports that "Supreme Court Has Juicy Cases This Spring." In news from Alabama, an article headlined "Justice Ginsburg will lecture at UA Law" reports that "University of Alabama law students will hear a lecture Monday by U.S. Supreme Court Justice Ruth Bader Ginsburg titled 'Women's Progress at the Bar and on the Bench: Pathmarks in Alabama and Elsewhere.'" And in other news, "Court: Release Man Wrongly Convicted"; "Judge sets timetable for suit over Moore ouster"; and "Judge Orders DNA Test of Neil Bush." Posted at 18:58 by Howard Bashman U.S. Court of Appeals for the Third Circuit affirms trial court's grant of summary judgment rejecting copyright infringement claim against Britney Spears: You can access yesterday's non-precedential ruling of the U.S. Court of Appeals for the Third Circuit at this link. At issue was whether the pop star's song "What U See" infringed on the copyright held by the authors of a song entitled "What You See." Posted at 13:02 by Howard Bashman In news from Rhode Island: The Providence Journal today contains an article headlined "Judge: Role on terrorism tribunal is constitutional; A law professor and the head of the Rhode Island bar agree that Chief Justice Frank Williams may hold the dual offices." The article begins, "Before agreeing to serve on a military panel that will hear appeals from suspected terrorists, Rhode Island Supreme Court Chief Justice Frank J. Williams looked into whether he would violate a section of the state Constitution that limits dual office holding." Posted at 12:44 by Howard Bashman Does "and" mean "and" or "or"? The Supreme Court of Kansas ruled yesterday in the case that I recently previewed here. You can access yesterday's ruling at this link. In news coverage of the decision, The Witchita Eagle today contains an article headlined "Supreme Court has no ifs on law's ands." And The Associated Press reports that "Ruling backs driver in fatal DUI; Sentence hinges on 'and/or' discrepancy, high court rules." Posted at 12:43 by Howard Bashman Virginia v. Black is back in Virginia: The Virginian-Pilot today contains an article headlined "Cross-burning case back to state court for review." The U.S. Supreme Court's ruling in the case, from April 2003, can be accessed here. Posted at 12:35 by Howard Bashman "Thurgood Marshall's triumphs examined; Civil Rights actions left America changed from land he grew up in": This article appears today in The Charlotte Observer. Posted at 12:32 by Howard Bashman "KKK-adopted road may soon be named after noted black": Today's issue of The Wisconsin State Journal contains this report. Posted at 12:30 by Howard Bashman "Court upholds sentence of gay teen; Kan. judges defend stricter punishment for homosexual acts": Lyle Denniston provides this report today in The Boston Globe. And The Kansas City Star reports that "Kansas court upholds sentence in gay sex case." You can access yesterday's ruling by the Court of Appeals of Kansas at this link. Posted at 07:40 by Howard Bashman "Military To Watch Prisoner Interview; Hamdi's Lawyer Resents Monitoring": This article appears today in The Washington Post. In other coverage, The Virginian-Pilot reports that "Hamdi will be allowed to meet with attorney." And The Charleston Post and Courier reports that "Hamdi, lawyer to meet for first time next week." Posted at 07:27 by Howard Bashman "2 Democrats Criticize Scalia's Refusal to Quit Cheney Case; Reps. Waxman and Conyers cite the 1995 recusal of a judge with ties to President Clinton." David G. Savage of The Los Angeles Times has this report today. You can access here the letter that these two U.S. Congressmen sent to Chief Justice William H. Rehnquist yesterday. And The Palm Beach Post today contains an editorial entitled "Scalia's quack defense." Posted at 07:14 by Howard Bashman Not bitter: The Clarion-Ledger of Mississippi today contains an article headlined "Pickering says he's not bitter." Posted at 07:05 by Howard Bashman Friday, January 30, 2004
In Friday's newspapers: The New York Times reports that "Veto Threatened on Bill to Restrict Powers Under Terrorism Law." In other news, "Setback for Prosecutors in Martha Stewart Trial." An article reports that "Judge Delays a Decision on Artworks." In other news, "Gay Couples Seek Unions in God's Eyes." And an editorial is entitled "Time for Exxon to Pay."
The Washington Post reports that "Judge Accuses Lentz Prosecutor of Misconduct." In other news, "Report Might Help Stewart's Co-Defendant." And an article reports that "Deportation Threat Lifted; Decisions Allow Russian to Stay in U.S. Indefinitely." The Christian Science Monitor contains an article headlined "Should corporations be held accountable for slavery?" And an article is headlined "On polygamy, a crackdown and a bid for legitimacy; The practice of plural marriage comes under scrutiny as an internal struggle flares up in sect on Utah-Arizona border." Posted at 23:45 by Howard Bashman "Row hits Cheney case judge": Saturday's edition of The Guardian (UK) contains an article that begins, "A judge seen as the defender of arch-conservative views on the US supreme court faced renewed pressure yesterday to withdraw from a case involving the vice-president, Richard Cheney, after the two went duck hunting together." Meanwhile, an editorial in Saturday's issue of The Star Tribune of Minneapolis is entitled "Scalia/Cheney: The justice must step aside." You can access online at this link the letter U.S. Congressmen Henry A. Waxman (D-CA) and John Conyers, Jr. (D-MI) sent to Chief Justice Rehnquist on this subject today. Posted at 23:30 by Howard Bashman Available online at law.com: Tony Mauro has an article headlined "Unable to Duck the Issue." In news from the U.S. Court of Appeals for the Second Circuit, "U.S. Citizenship Revoked for Former Nazi." In news from California, "Internet Cafe Ordinance Sparks War of Words." In news from New York, "Claims in WTC Bombing Go Forward 11 Years Later." And in news from Connecticut, "Allstate Victorious in Anti-Lawyer Campaign." Posted at 23:26 by Howard Bashman In news involving the federal judiciary: The Administrative Office of the U.S. Courts has issued a press release entitled "Congressional Caucus on the Judicial Branch is Created." And the U.S. Sentencing Commission has issued a press release entitled "United States Sentencing Commission Chair Diana E. Murphy Resigns; Transfer of Duties Expected to Go Smoothly." Posted at 23:15 by Howard Bashman "Execution to proceed for teenage killer": The Houston Chronicle reports here today that "A Houston judge on Thursday ordered that an inmate who was 17 when he murdered two people should be executed as scheduled this spring, despite the U.S. Supreme Court's decision to hear a case questioning the constitutionality of capital punishment for juvenile crimes." Posted at 23:14 by Howard Bashman "Howard Bashman knows the Art of the Tease." So writes Patterico in response to my post previewing Ninth Circuit Judge Stephen Reinhardt's "20 questions for the appellate judge," which will be posted online here at midnight on Monday, February 2, 2004. Posted at 23:07 by Howard Bashman The blogosphere reacts with grace and kindness: Thanks to all the bloggers who took a moment today to post words of encouragement in reaction to the news that on Monday I will be opening my own law firm focusing on appellate litigation. More details about my new law firm will be provided here on Monday. Among those who were so kind as to wish me well online today are: "Pejmanesque"; "Notes from the (Legal) Underground"; "Talk Left"; "CrimLaw"; "Thus Blogged Anderson"; "Rory Perry's Weblog"; "Sugar, Mr. Poon?"; "a mad tea-party"; and Walter Olson of "Overlawyered." Apparently my good news is also going to be the subject of an article in Monday's issue of The Legal Intelligencer. The reporter who covers moves within the Philadelphia legal community for that publication apparently was inundated with emails both from his colleagues at that newspaper and also from higher-ups in the American Lawyer Media corporate hierarchy after my post mentioning this news appeared this morning. It's nice to have readers who care so very much. Posted at 23:00 by Howard Bashman "The Company They Kept": This profile of the downfall of Adelphia Communications is the cover story in this Sunday's New York Times Magazine. Posted at 22:00 by Howard Bashman "Spare Us the 'Spare the Rod'; Canada tries to sort out the good spankings from the bad." Slate has just posted online this essay by Dahlia Lithwick about the spanking ruling that the Supreme Court of Canada issued earlier today. Posted at 19:37 by Howard Bashman "Democrats Increase Pressure on Scalia": Gina Holland of The Associated Press provides this report. Relatedly, The Hartford Courant today contains an editorial entitled "Justice Scalia Goes Duck Hunting." And today in The Los Angeles Times, letters to the editor appear under the heading "Arrogance Reigns Supreme on Court." Posted at 17:25 by Howard Bashman "Minneapolis federal judge leaves post heading U.S. sentencing commission": The Star Tribune reports here today that "U.S. Appeals Court Judge Diana Murphy of Minneapolis is giving up her role as head of the U.S. Sentencing Commission, saying she wants to dedicate more time to her appeals court work." Posted at 15:12 by Howard Bashman "Kan. Court Backs Harsher Sodomy Sentence": The Associated Press reports here that "Kansas can punish illegal sex with children more harshly when it involves homosexual acts, the state Court of Appeals ruled Friday in a case being watched by national advocacy groups." You can access today's ruling by a divided three-judge panel of the Court of Appeals of Kansas in Kansas v. Limon at this link. This case was on remand from the U.S. Supreme Court for reconsideration in light of Lawrence v. Texas. Posted at 14:52 by Howard Bashman Today's Ten Commandments news: From Tennessee, The Knoxville News-Sentinel reports that "Monroe to fight suit over commandments; Mayor denies posting of tracts violates constitutional rights." In other coverage, The Monroe County Advocate reports that "ACLU files suit against county." From Georgia, The Athens Banner-Herald reports that "Barrow finds ally to help fight suit; Battle with ACLU." And from Alabama, The Birmingham News reports that "Pryor opposes Moore's appeal." Posted at 14:33 by Howard Bashman Today's Ninth Circuit opinions: Today the U.S. Court of Appeals for the Ninth Circuit issued two precedential opinions. One case involves a whole bunch of money, arising from the federal government's challenge to the tax treatment of a lump sum that the winner of a $9 million prize in the Oregon lottery received in exchange for assigning to a third-party the right to be paid that award in 20 annual installments. You can access the tax ruling at this link. The even more interesting decision, at least to me, involves no money at all in the view of the three-judge panel's majority. And that's the problem, because in the absence of any amount in controversy this diversity of citizenship case does not belong in federal court. Circuit Judge Alex Kozinski has written a vociferous and most persuasive dissent, with which I agree. Indeed, I would not be surprised to see this case overturned on rehearing en banc or by the U.S. Supreme Court if the appellant is willing to pursue the matter. The majority holds that where a plaintiff in an arbitration case is awarded no recovery, his action to overturn the arbitration award involves an amount in controversy of $0. Judge Kozinski persuasively (and with his usual flair) explains why the amount in controversy must be viewed as the amount that the plaintiff sought to recover in the arbitration. This opinion can be accessed here. Posted at 13:30 by Howard Bashman Thanks so very much! Thanks to everyone who has taken the time to send along congratulatory words and good wishes in response to my mention here this morning that I will on Monday, February 2, 2004 be opening my own law firm focusing on appellate litigation. Your kind words and thoughts are most appreciated. Posted at 13:00 by Howard Bashman You're not free to go: The Associated Press is reporting that "Cell Doors Spring Open on Ark. Death Row," while Reuters reports that "Cell Doors Left Unlocked Twice at Prison." Posted at 12:55 by Howard Bashman "Fired cop in sex video wins appeal; S.D. officer sold tapes on Internet": The San Diego Union-Tribune today contains this article reporting on yesterday's ruling of the U.S. Court of Appeals for the Ninth Circuit, which I first mentioned here. Posted at 12:52 by Howard Bashman Don't mention it: The Atlanta Journal-Constitution today contains an article headlined "Cox: 'Evolution' a negative buzzword; State schools superintendent defends purge of word from proposed biology curriculum." Posted at 12:44 by Howard Bashman "U.S. Judge in NYC Videotapes Sentencing": The Associated Press reports here that "A federal judge took the unusual step of videotaping a criminal sentencing amid a backlash over a new law aimed at limiting lighter sentences." Posted at 12:43 by Howard Bashman Today's nude dancing appellate ruling originates from the U.S. Court of Appeals for the Eighth Circuit: Be sure to read the decision to learn what type of entertainment the establishment in question began to offer once the performers began wearing some clothes. Posted at 11:56 by Howard Bashman "Jury Duty Tapes Edited To Fix Errors": The Hartford Courant reports here today that "Judicial officials have recalled and re-edited about 65 videotapes used statewide to introduce potential jurors to the court system after a Superior Court judge ruled they contained inaccurate statements about the law." Posted at 11:52 by Howard Bashman Divided Supreme Court of Canada rejects constitutional challenges to law allowing the spanking of children by parents and teachers constitutes cruel and unusual punishment: You can access today's ruling at this link. Thanks so very much to a Canada-based reader for sending along news of this ruling. Update: The Toronto Globe and Mail offers a news update headlined "Spanking upheld by Supreme Court." Posted at 10:35 by Howard Bashman D.C. Circuit rejects environmental challenge to expansion of runways at Boston's Logan Airport: You can access today's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link. Posted at 10:11 by Howard Bashman "Judge Accuses Lentz Prosecutor of Misconduct": The Washington Post today contains a front page article that begins, "A federal prosecutor deliberately placed before a jury evidence that was banned from the case of Jay E. Lentz and then lied about it, a judge ruled yesterday in granting Lentz a new trial on charges of kidnapping and killing his former wife." You can access yesterday's ruling by District Judge Gerald Bruce Lee of the U.S. District Court for the Eastern District of Virginia at this link. Posted at 10:03 by Howard Bashman The Associated Press is reporting: Now available online are articles headlined "Mass. Democrats Back Gay Marriage Edict" and "Judge Grants New Trial for Former Officer." Posted at 09:35 by Howard Bashman A new beginning: Effective at the close of business today, I have resigned from the law firm of Buchanan Ingersoll, where for the past three years I have served as chair of the Appellate Group, to open my own law firm focusing on appellate litigation. My new law firm will open for business on the morning of Monday, February 2, 2004. Early Monday morning, I will provide here at "How Appealing" my new office address, phone and fax numbers, and other contact information, and I will also link to a press release that explains the reasons for my move. For now, you have my word that this is a move that makes perfect sense from every conceivable perspective. Regular programming is scheduled to continue here today and into the foreseeable future. Posted at 06:00 by Howard Bashman "Broward students ousted from drama competition for flag-cutting scene": The South Florida Sun-Sentinel today contains this article. Posted at 05:57 by Howard Bashman "Justice Scalia's vision problem has spread to Chief Justice Rehnquist": This editorial appears today in The Allentown (Pa.) Morning Call. Posted at 05:55 by Howard Bashman "Activists decry Bush’s appeals court appointees; Pickering, 4 others cited by rights groups as anti-gay": The Washington Blade today contains this report. Posted at 05:54 by Howard Bashman "Court Says Cop Wrongly Fired for Masturbation Video": Reuters provides this report on a ruling yesterday from the U.S. Court of Appeals for the Ninth Circuit that I first noted here. Posted at 05:45 by Howard Bashman "Sony fake-critic suit proceeds": Bloomberg News provides this report. You can access Tuesday's not-for-publication ruling by a divided three-judge panel of the California Court of Appeal for the Second Appellate District at this link. Posted at 00:05 by Howard Bashman Thursday, January 29, 2004
In Thursday's newspapers: In The New York Times, Adam Liptak reports that "$4.5 Billion Award Set for Spill of Exxon Valdez." And in other news, "Inquiries Begun Into Handling of Detroit Terror Cases."
The Washington Post reports that "Judge Says Exxon Owes $6.75 Billion For Valdez; Appeal Promised as Suit Over '89 Spill Drags On." An article reports that "Panel Is Critical of FCC Rule; Major Phone Firms Say States Given Too Much Power." In other news, "Court Honors Judge Who Laid Down Law; Norma Holloway Johnson Retires From U.S. Bench." An article reports that "Figures in Historic Lawsuit Recount Rights, Wrongs; Forum Reunites Those Who Beat 'Separate but Equal.'" In news from Virginia, "The Defense Rarely Has Time to Rest; Federal Public Defender's Office Has Its Hands Full, but Not Tied." An article reports that "Justice Dept. Sues Ky. Utility For Breach of Clean Air Act." In other news, "U.S. Revokes Visas of 16 at Islamic Institute; Order Is Part of Ongoing Crackdown." And in local news, "Va. Senate Panel Approves Changing 21-Day Evidence Rule"; "Does Family Court Judge Have Inside Track for Judicial Post?"; and "In Alexandria, an Unusually Selective Process; Judicial Nominees Face New Hurdles." The Wall Street Journal today contains an editorial entitled "Senate Inquisition: The real scandal is what's in the Democratic memos on judges, not who leaked them." USA Today reports that "Battle over violent video games heating up; Washington state case may help define limits on sales to children." The Washington Times reports from Virginia that "House OKs stricter abortion-clinic standards." The Boston Globe reports that "$116m awarded in terrorism suit." The Los Angeles Times reports that "Killer of 4 Won't Get Clemency Hearing; In his first death-penalty case, governor will not investigate petition for man convicted of 1983 crimes in Chino Hills." Henry Weinstein reports that "Judges Want a Convicted Killer Freed; D.A. Unmoved" and "Insurer Settles Armenian Genocide Suit; New York Life will pay $20 million to victims' heirs and to nine civic organizations." An article reports that "Judge Sees Payback in Property Valuation; O.C. Superior Court Judge John Watson ruled against the county's assessment method. Then his assessment increased." An obituary bears the headline "Harry L. Hupp, 74; Judge Changed Treatment of Homeless Drunks in L.A." In other news, "Wheeler Case Is Moved." And an op-ed by Alan Elsner is entitled "Inmates' 'Do Not Pass Go' Card; Ex-convicts -- many of them barred from government benefits and good jobs -- are denied a second chance in the U.S. They frequently return to jail." Posted at 23:10 by Howard Bashman Available online at law.com: An article is headlined "Shades of 'Lawrence': Scalia's dissent in Texas sodomy case is echoed in a Utah action." In other news, "Calif. Appeals Court Reverses Lab Firing Verdict; Expert testimony at issue in case." In news from New York, "Postponement for Key Witness in Stewart Trial; Prosecution is accused of not sharing evidence." Finally, Tony Mauro's article that includes the quite funny "Lawyer Plays Name Game With Justice Ginsburg" item (also known as "Justice Ginsburg's revenge") can now be accessed here, no registration required. Posted at 22:44 by Howard Bashman The Associated Press is reporting: Now available online are articles headlined "Calif. Man Still Jailed Despite Rulings"; "Judge Says 1993 WTC Suits Can Proceed"; and "Md. Court Tells City to Open Madam's List." Posted at 22:40 by Howard Bashman "Lawyer guilty of mailing deadly snake": Reuters tonight has an article that begins, "An Arkansas lawyer and his son will soon be heading to prison after pleading guilty to mailing a threatening communication -- a venomous snake." The second to last paragraph of the article states, "Both men tried to enter a guilty plea on Monday but the proceedings were delayed when both tested positive for illegal drugs." There are undoubtedly several lessons to be learned here. Posted at 22:33 by Howard Bashman READER ALERT: A bit earlier tonight I received back from Ninth Circuit Judge Stephen Reinhardt his answers to February 2004's installment of "20 questions for the appellate judge." This interview probably will be, thanks to my often provocative questions and Judge Reinhardt's thoughtful and complete answers, the most interesting installment of "20 questions" yet to be published here. In the research that I conducted to prepare my questions, I did not come across any profile of Judge Reinhardt that offered anywhere close to as much insight into the person and the judge as his answers to my questions provide. I won't be surprised if this installment of "20 questions" receives the most attention yet -- not only from the blogosphere, but from the major media as well. My interview of Judge Reinhardt will be posted online here at midnight on Monday, February 2, 2004. Be sure not to miss it. Posted at 22:15 by Howard Bashman "High Court: No Colo. Redistricting Stay." The Associated Press provides this report. Posted at 21:11 by Howard Bashman Look out Ninth Circuit -- now the Tenth Circuit is hearing Johnston Atoll-related cases: Unlike the Ninth Circuit's Johnston Atoll tax-related ruling from December 2002, the ruling the Tenth Circuit released today for publication does not mention the always popular Guano Islands Act. Federal appellate judges please note: it's so much more fun for all involved to mention the Guano Islands Act when resolving a case concerning Johnston Atoll, as my earlier coverage of the Ninth Circuit's December 2002 ruling demonstrates (see here and here). Posted at 21:00 by Howard Bashman "Justice Warns Against Civil Rights Apathy": Gina Holland of The Associated Press has this report on a speech delivered today by U.S. Supreme Court Justice Ruth Bader Ginsburg. Posted at 20:32 by Howard Bashman National Public Radio is reporting: This evening's broadcast of "All Things Considered" contained a segment entitled "Florida Court Rules Against Gay Adoption" (Real Player required). And today's broadcast of "Morning Edition" contained a segment entitled "Teen's Conviction Fuels Mandatory Sentencing Debate." Posted at 19:52 by Howard Bashman Access online the brief filed by Alabama Attorney General Bill Pryor in the Supreme Court of Alabama seeking to uphold the removal of former Chief Justice Roy S. Moore: The brief, filed today, is available online here courtesy of FindLaw. Posted at 19:33 by Howard Bashman "Ban on adoptions by gays upheld by U.S. appeals court; Even though Florida is the only state to prohibit gay adoptions, appellate judges say they have no right to overrule the state Legislature." This article appears today in The Miami Herald. In other coverage, The South Florida Sun-Sentinel reports that "Federal appeals court supports Florida's ban on gay adoptions." The Orlando Sentinel reports that "State's gay-adoption ban upheld; A federal appeals court said Florida's blanket prohibition is constitutional." And The Atlanta Journal-Constitution reports that "Gay adoption ban upheld; Take debate to Florida's Legislature, court says." My first mention of yesterday's unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit can be accessed here. Posted at 18:35 by Howard Bashman To be clear, I don't disagree with everything contained in Judge Kozinski's letter opposing approval of the new Federal Rule of Appellate Procedure that would allow citation to unpublished and non-precedential opinions: In his letter, Ninth Circuit Judge Alex Kozinski writes: Nor is every case suitable for preparation of a precedential opinion. Many cases are badly briefed; many others have poorly developed records. Quite often, there is a severe disparity in the quality of lawyering between the parties. A party may lose simply because its lawyer has not done an adequate job of making a record or developing the best arguments for its position. It is often quite apparent that, with better lawyering, the rationale and perhaps even the result of our disposition might be different--yet we must decide the case on the record and arguments before us. At the same time, however, it's important not to foreclose prematurely a particular line of legal analysis. Issuing a precedent that rejects outright a party's argument may signal the death of a promising legal theory, simply because it was poorly presented in the first case that happens to come along.I entirely agree that the quality of lawyering can affect the outcome of an appeal. You can access all of Judge Kozinski's letter at this link. The explanation for why I disagree with Judge Kozinski's opinion toward this new proposed rule of appellate procedure can be found here. Posted at 18:06 by Howard Bashman In news from Massachusetts: The Associated Press reports that "Sampson receives state's first federal death sentence." The Massachusetts-based federal district judge, for whatever reason, ordered that the death sentence be carried out in New Hampshire. In coverage of that aspect of today's news, The AP reports that "N.H. officials caught off guard by execution order." According to the article, the last death sentence executed in New Hampshire occurred in 1939 by hanging. The room used for the hanging, the article reports, is now used as an office. Posted at 17:54 by Howard Bashman When it comes to the proposed new Federal Rule of Appellate Procedure that will allow citation to unpublished and non-precedential opinions, it's time to hear from the heretofore silent majority: Law Professor Patrick Schiltz, who serves as Reporter for the Advisory Committee on the Federal Rules of Appellate Procedure, emails this afternoon: Here is a status report on the proposed amendments to the Federal Rules of Appellate Procedure. You are free to share this information with your readers if you think it would interest them.The proposed changes to the Federal Rules of Appellate Procedure that are subject to public comment until February 16, 2004 can be accessed here. Comments can be submitted over the Internet via this page. My January 2004 monthly appellate column, published earlier this month in The Legal Intelligencer, summarized the most significant proposed appellate rule amendments and strongly endorsed the new rule that is so controversial in the Ninth Circuit. Earlier today I linked to this letter from Ninth Circuit Judge Alex Kozinski opposing the amendment that would allow citation to unpublished and non-precedential opinions. The reasons why I believe that Judge Kozinski's views on this point are absolutely incorrect are explained in two of my earlier appellate columns accessible here and here. But don't just take my word for it. The Advisory Committee on the Federal Rules of Appellate Procedure is made up of a brilliant group of judges, academics, and attorneys (see pages 4 and 5 of this PDF document for a list of the committee's current members). The Advisory Committee previously endorsed the proposed new rule by an overwhelming margin. And the Advisory Committee's note in support of proposed new Rule 32.1 persuasively explains why the new rule should be adopted. Readers of this Web log who support proposed Rule 32.1 should take the time to submit comments in favor of the new rule, so that the Advisory Committee won't be left with the incorrect impression that those who care strongly about the rule are nearly uniformly opposed to it. Comments in favor of the rule (and even comments opposed to it) can be copied to me, if you'd like me to consider them for publication here. Posted at 17:00 by Howard Bashman "Tobacco giveaways ban challenged; California Supreme Court will rule on appeal by R.J. Reynolds": Bob Egelko has this article in today's issue of The San Francisco Chronicle. Posted at 15:11 by Howard Bashman "Possibilities abound for future of Hanover monument; Other communities facing similar church-vs.-state issues have fought, or found ways around the challenge." This article appears today in The York (Pa.) Daily Record. Posted at 15:10 by Howard Bashman "German cannibal may avoid life": Reuters provides this report. Posted at 15:08 by Howard Bashman "House panel inks tattoo bill": The Sun News provides this report from South Carolina. Posted at 15:07 by Howard Bashman In news from Guam: Friday's issue of The Pacific Daily News contains articles headlined "Justice assigned to case" and "Local firm questions AG's hiring of Washington-based lawyer." Posted at 15:06 by Howard Bashman "Supreme Court chief justice to teach at UA again": The Associated Press provides this report from Arizona. Posted at 15:04 by Howard Bashman "Scalia's poor judgment could damage the court": This editorial appears today in The Journal Times of Racine, Wisconsin. Posted at 15:03 by Howard Bashman "Plan for supreme court attacked; Scotland's top law officer has been accused of talking 'a load of rubbish' over his support for radical changes to the courts system." BBC News provides this report. Posted at 15:01 by Howard Bashman "Battleground California: A federal court uses international law to gut a crucial antiterror statute." Andrew C. McCarthy has this essay today at National Review Online. Posted at 15:00 by Howard Bashman The Associated Press is reporting: Now available online are articles headlined "Ashcroft Thinks Patriot Act Will Stand"; "Court clears way for what could be two Calif. executions this year"; "Pork groups eye supreme court for ruling"; and "Judge Won't Give More Time to Rudolph." Posted at 14:17 by Howard Bashman The most unusual opening paragraph of a Ninth Circuit opinion issued today: Today a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision in which the majority opinion begins: Plaintiff-Appellant John Roe, while a San Diego police officer, videotaped himself stripping off a generic police officer's uniform and engaging in acts of masturbation. He offered these home-made videos for sale on the adults-only section of the popular online auction site eBay, using a fictitious name and a Northern California address. Although the videos did not reveal his connection with the San Diego Police Department (the "Department"), Roe was unmasked when one of his supervisors discovered the videos online and recognized Roe's picture. The Department confronted Roe, who readily admitted making and selling the videos, and eventually fired him. Roe sued the Department, the City of San Diego and his supervisors in federal district court under 42 U.S.C. § 1983, alleging that his off-duty, non-work-related activities were protected by the First Amendment and could not be grounds for terminating his employment. The district court dismissed Roe's claim, concluding that the videos did not address a matter of "public concern," and thus the Department did not violate Roe's constitutional rights by firing him. We conclude that the district court erred, and reverse and remand for further proceedings.No doubt police officers throughout the Ninth Circuit who wish to sell videotapes of themselves stripping and masturbating are overjoyed with today's ruling, which you can access at this link. Circuit Judge Raymond C. Fisher wrote the majority opinion, in which Senior Circuit Judge Dorothy W. Nelson joined. Circuit Judge Kim M. Wardlaw wrote a dissenting opinion. Posted at 13:37 by Howard Bashman "Military Frees 3 Teens From Guantanamo Bay": The Associated Press provides this report. You can access here the press release that the U.S. Department of Defense issued today. Posted at 12:45 by Howard Bashman Ninth Circuit Judge Alex Kozinski submits twenty-two-page letter condemning proposed new Federal Rule of Appellate Procedure that would allow citation to unpublished and non-precedential opinions: The closing paragraphs of Judge Kozinski's letter state: The Advisory Committee should simply withdraw the proposed rule and move on to other issues. If, however, the Committee believes a uniform federal rule is needed, I can suggest three. First, it may adopt a rule like Ninth Circuit Rule 36-3 as the national rule. That will certainly ensure consistency among the federal circuits, and also with state practice, where the substantial majority of states have some sort of citation ban. Second, the Committee might consider alleviating confusion among lawyers who practice in different circuits--if it really believes there is such a problem--by adopting a rule clarifying that the prohibitions on citation apply only to the courts of the circuit issuing the unpublished disposition, and nowhere else. Third, the Committee might require all circuits to place the precise limits on citability of unpublished dispositions on the front page of such dispositions, as is already the case in the Ninth and Tenth Circuits.You can access the complete letter at this link. Posted at 12:35 by Howard Bashman "Would it be too cynical to speculate that what may be going on here is that class counsel wanted a settlement that would give them a generous fee and Fleet wanted a settlement that would extinguish 1.4 million claims against it at no cost to itself?" Circuit Judge Richard A. Posner asks this question in the course of setting aside, on behalf of a unanimous three-judge Seventh Circuit panel, a class action settlement involving Fleet Mortgage Corporation. You can access today's opinion at this link. Posted at 11:58 by Howard Bashman Access online yesterday's ruling in the Exxon Valdez case: It is available online here. And The Anchorage Daily News reports today that "Judge raises Exxon damages; Punitive award from 1989 oil spill put at nearly $7 billion with interest." Posted at 10:00 by Howard Bashman The rock-and-roll band the Eagles has a dispute with the American Eagle Foundation, a non-profit organization dedicated to protecting American bald eagles: Another out-of-the-ordinary trademark dispute is the subject of an appellate court's ruling. See this opinion that a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued today. Posted at 09:30 by Howard Bashman These married lawyers, while at home, don't desire to have nude people traipsing around in plain view: The Associated Press reports that "Restrictions on nude beach are upheld; Oregon Fish and Wildlife must shield property owners from naked sunbathers." You can access yesterday's ruling of the Oregon Court of Appeals at this link. Posted at 09:02 by Howard Bashman "Easton judge close to seat on U.S. appeals court; Van Antwerpen seems 'all but guaranteed' confirmation, Santorum says at hearing." This article appears today in The Morning Call of Allentown, Pa. Posted at 08:52 by Howard Bashman "Statement Of Senator Patrick Leahy On The Confirmation Of Additional Judicial Nominees": U.S. Senator Patrick J. Leahy (D-VT), the ranking Democratic member of the Senate Judiciary Committee, yesterday issued this statement about the judicial confirmation process on the occasion of the first confirmation of an Article III judge in 2004. Posted at 08:50 by Howard Bashman "Scalia, use good judgment; bow out of Cheney case": The Atlanta Journal-Constitution today contains this editorial. And The Denver Post offers letters to the editor under the heading "Should Scalia recuse himself?" You can access Chief Justice William H. Rehnquist's letter responding to the recusal-related inquiry of U.S. Senators Patrick J. Leahy (D-VT) and Joe Lieberman (D-CT) at this link. Posted at 08:30 by Howard Bashman "Procedure kept Pickering out, procedure sneaks him in": Michael Siciliano, a columnist for The Daily Trojan of the University of Southern California, today has this essay. And in today's issue of The New York Post, letters to the editor appear under the heading "The President picks Pickering." Posted at 06:00 by Howard Bashman "Judge's insult shocks rape victim; A Seminole judge made a rude remark about the woman's appearance while discussing a sentence." The Orlando Sentinel today contains an article that begins, "Circuit Judge Gene Stephenson shocked a rape victim and prosecutor this week when he looked over the victim's photo in court and said, 'Why would he want to rape her? She doesn't look like a day at the beach.'" Posted at 05:57 by Howard Bashman Wednesday, January 28, 2004
In Wednesday's newspapers: In The Boston Globe, Lyle Denniston reports that "US detainees take case to UN agency." And in other news, "Students' legal bid vs. MCAS rebuffed."
The Los Angeles Times reports that "Broadsides Open Trial of Stewart; Prosecutors describe her as a liar, while defense attorney claims she's a victim of smear tactics by the government." In news from California, "Unruffled Governor Vows to Repay Loan; A judge ruled he had broken the law by using borrowed money to finance his campaign"; "Trial Opens in Disney Ride Injury Suit by Surgeon"; "Lawyers File Suit on Behalf of Shelter; Santa Ana's efforts to restrict Catholic Worker house violate religious rights, consortium says"; "Report Criticizes Mental Health Care of State's Young Inmates"; "Inglewood Police Abuse Case Goes to Jurors; Prosecution says Jeremy Morse was out of control when he slammed youth on patrol car; Defense counters that officer was following training"; and "3 Charged With Hate Crimes in 1997 Killing of Black Man." The title of Steve Lopez's "Points West" column is "When Freedom Rings Hollow." Law Professor Jonathan Turley has an op-ed entitled "Case of the Missing Evidence; Facts are often withheld from juries, which can lead to ill-informed verdicts." And a letter to the editor appears under the heading "Patriot Act Ruling." The Washington Times reports that "Justice pursues few claims of abuse under Patriot Act." And Cal Thomas has an op-ed entitled "Informed choice and abortion." The New York Times reports that "Prosecutor Says Martha Stewart Spun Web of Lies About Shares." A related article is headlined "The Fervor of the Faithful, the Silence in the Annex." An obituary reports that "Jacob Mishler, Federal Judge Who Never Retired, Dies at 92." An article reports that "Justice Dept. Ends Testing of Criminals for Drug Use." In news from California, "Judge Says Schwarzenegger Broke Campaign Law." An article reports that "9/11 Commission Says It Needs More Time." And in other news, "In Online Auctions, Misspelling in Ads Often Spells Cash." The Washington Post reports that "Va. Considers Death Penalty Changes; Bills Would Prohibit Execution of Minors, Allow New Evidence at Any Time." An article reports that "4 Va. Jihad Suspects Won't Go Before Jury." An editorial is entitled "High Court Duck Blind." Susan Murray has an op-ed entitled "'Queer Eye' for Big Brother." And a letter to the editor appears under the heading "History's Guide to Tribunals." Posted at 23:20 by Howard Bashman "$4.5 Billion Award Set for Spill of Exxon Valdez": Adam Liptak will have this article in Thursday's edition of The New York Times. Posted at 23:16 by Howard Bashman Available online at law.com: An article reports that "Taxes Seen as Property Under Mail Fraud Law; 2nd Circuit clarifies scope of prosecutions of schemes to defraud governments." And in other news from New York, "Dewey Partner's E-Mail Causes Upset Over Racial Insensitivity" and "An Act Gone Too Far?" Posted at 23:05 by Howard Bashman The Associated Press is reporting: Gina Holland reports that "Court Keeps Guantanamo Suspects Isolated." And in other news, "Canada Might Delay Same-Sex Marriage Law" and "Inmate Confesses Just Before Execution." Posted at 23:00 by Howard Bashman "Questioned only by allies, Pa. judge breezes through Senate hearing": The Associated Press reports here that "Less was more for a Pennsylvania judge who sought Senate approval Wednesday for a federal appeals court post -- and faced only his two home state lawmakers and a bit of gentle questioning during his confirmation hearing. In less than 30 minutes, U.S. District Judge Franklin S. Van Antwerpen breezed through the hearing as Sens. Arlen Specter and Rick Santorum, both Pennsylvania Republicans, congratulated his all-but-certain ascension to the 3rd U.S. Circuit Court of Appeals in Philadelphia." Posted at 22:53 by Howard Bashman "C.A. Upholds Compulsory Taking of DNA Samples From Prisoners": This article appears today in The Metropolitan News-Enterprise. You can access yesterday's ruling of California's Court of Appeal for the Sixth Appellate District at this link. Posted at 20:54 by Howard Bashman Tony Mauro's "Courtside" column this week: You can access it here (free registration required) via Legal Times. That publication's Web site summarizes this week's column as follows: "In a show of political theater, disability rights activists make their point on the Supreme Court steps; a former police officer says he was wrongly fired; and a justice misspeaks." Posted at 19:44 by Howard Bashman "Exxon Mobil told to pay $4.5 bln for Valdez spill": Reuters reports here that "A federal judge has ordered Exxon Mobil Corp. to pay $4.5 billion in punitive damages -- a higher figure than previously awarded -- plus $2.25 billion in interest because of the 1989 Exxon Valdez oil tanker spill." Posted at 19:35 by Howard Bashman Is the State of Florida too easy on criminals? The answer probably depends on whom you ask, but a series entitled "Justice Withheld" currently underway in The Miami Herald certainly suggests the answer often is "yes." Today's featured article in the series is headlined "Sexual abusers of children often get deals, no convictions." Posted at 19:33 by Howard Bashman The Associated Press is reporting: Now available online are articles headlined "Gay men lose challenge to Florida gay adoption ban"; "Exxon Mobil to Pay $6.75B in Damages"; "Court Hears About FCC Competition Rules"; and "'TV Defense' Killer Leaving Prison Early." Posted at 19:21 by Howard Bashman "Level Paying Field: The law may allow ads attacking the Democratic presidential nominee to go unanswered." Law Professor Rick Hasen, author of the "Election Law" blog, today has this essay online at Slate. I look forward to meeting Rick on Friday, February 6th in Philadelphia, where he will be attending an election law-related conference at the University of Pennsylvania Law School. Posted at 19:11 by Howard Bashman Ninth Circuit nominee William Gerry Myers III scheduled for Senate Judiciary Committee hearing on Wednesday, February 4, 2004: This announcement appears on the committee's Web site. I was too busy enjoying a snow day occasioned by the closing of my son's elementary school to watch the online broadcast of this morning's confirmation hearing for Third Circuit nominee Franklin S. Van Antwerpen, but I wasn't expecting any controversy. The hearing for Myers, by contrast, may be a bit more interesting to watch given the opposition some groups have already voiced toward his nomination. Posted at 17:55 by Howard Bashman "'CtrlAltDelete' Inventor Restarts Career": The Associated Press today offers this report. Here's hoping his next invention makes use of the always popular "NumLock" key. Posted at 17:30 by Howard Bashman "Bush Admin. Pushes Court on Guantanamo Bay": Gina Holland of The Associated Press reports here that "The Bush administration asked the Supreme Court on Wednesday to stop an appeals court from breaking the government's isolation of terrorism suspects at the Navy base in Cuba. The 9th U.S. Circuit Court of Appeals is poised to notify a Guantanamo Bay detainee of its December ruling that found that the prisoners should be allowed to see lawyers and have access to courts, the administration said." You can access last month's Ninth Circuit ruling, in which the majority opinion was written by Circuit Judge Stephen Reinhardt, at this link. My first mention of that ruling can be accessed here. Posted at 17:16 by Howard Bashman Unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit upholds constitutionality of Florida statute prohibiting adoption of a child by persons "who are known to engage in current, voluntary homosexual activity": You can access today's ruling, which is sure to prove controversial, at this link. The Atlanta Journal-Constitution has the first news of this ruling in an article headlined "Federal court upholds Fla. gay adoption ban." Circuit Judge Stanley F. Birch, Jr. was the author of today's ruling. Joining in the decision were Circuit Judge Ed Carnes and Senior Circuit Judge Procter Hug, Jr., who was sitting by designation from the U.S. Court of Appeals for the Ninth Circuit. Judge Birch was the October 2003 participant in this Web log's "20 questions for the appellate judge" feature, and you can access his interview at this link. Posted at 16:59 by Howard Bashman "Ottawa amends terms of Supreme Court reference": The Globe and Mail of Toronto reports here that "The federal government has decided to change a request to the Supreme Court for a ruling on the contentious issue of gay marriage -- a move that will likely delay a hearing until after an expected spring election." Posted at 15:43 by Howard Bashman "Judges disqualified from Gutierrez case": Thursday's issue of The Pacific Daily News provides |