How Appealing

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.

1. We have received close to 170 comments, and we are receiving more every day. This is already an extraordinarily high number of comments for proposed rules of appellate procedure, and the comment period does not end until February 16.

2. Almost all of the comments have been about proposed Rule 32.1 (on unpublished opinions), and almost all of those comments have opposed the rule. We have received fewer than a dozen comments on proposed Rule 28.1 and on the proposed amendments to Rules 4, 26, 27, 28, 32, 34, 35, and 45.

3. Interestingly, the vast majority of the comments on proposed Rule 32.1 (I estimate 80 to 90 percent) have come from judges, attorneys, and others in the Ninth Circuit (or former clerks to judges in the Ninth Circuit).

4. Many of the comments about Rule 32.1 seem to assume that the proposed rule would require circuits to treat unpublished opinions as binding precedent. The proposed rule does not do so. It permits attorneys to cite unpublished opinions, but it leaves judges free to do whatever they wish with those citations. To quote the Committee Note: "Rule 32.1 is extremely limited.... It says nothing about what effect a court must give to one of its 'unpublished' opinions or to the 'unpublished' opinions of another court."

Please let me know if you have any questions. We appreciate your publicizing the proposed rules and inviting your readers to comment.
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.

But under no circumstances should the Advisory Committee advance the rule it has proposed. It is a terrible idea and should not be adopted as part of the Federal Rules of Appellate Procedure over the strenuous objection of the bench and bar in those courts where noncitation rules are widely accepted.

I apologize for the length of these comments. They reflect, I hope, my depth of feeling on this subject. I trust the Committee will give them serious consideration.
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 this news from Guam.
Posted at 15:42 by Howard Bashman



"Failing the smell test": Lionel Van Deerlin has an op-ed in today's edition of The San Diego Union-Tribune that begins, "Should Justice Antonin Scalia have shared a duck blind with Vice President Dick Cheney?"
Posted at 15:40 by Howard Bashman



"Moore seeks to remove justices": This article appears today in The Birmingham News.
Posted at 15:38 by Howard Bashman



"Man in landmark DUI case gets 90 days": The Chicago Sun-Times reports here today that "A west suburban man who fought a 1997 drunken-driving arrest all the way to the U.S. Supreme Court before losing a precedent-setting decision this month is going to jail after being convicted of another DUI."
Posted at 15:33 by Howard Bashman



"Lawyer Plays Name Game With Justice Ginsburg": This rather funny article appears online today at the New York Lawyer.
Posted at 15:30 by Howard Bashman



"Circuit Judge Carlos T. Bea Takes Oath of Office": The U.S. Court of Appeals for the Ninth Circuit has issued a news release (complete with photographs) that begins, "Carlos T. Bea confirmed last September as the newest member of the United States Court of Appeals for the Ninth Circuit, was formally invested into office Friday (Jan. 23) in a lively ceremony at the Court of Appeals in San Francisco."
Posted at 14:11 by Howard Bashman



Coming soon to "How Appealing": At midnight on Monday, February 2, 2004, I am scheduled to publish here a brand new installment of this Web log's popular monthly feature "20 questions for the appellate judge." February's interviewee will be Ninth Circuit Judge Stephen Reinhardt, and I have a hunch that this is going to be a most interesting question and answer session.
Posted at 14:00 by Howard Bashman



"Pennsylvania Man Is Freed After 40 Years": The Associated Press reports here that "A man who spent four decades in prison for the rape and murder of a 12-year-old girl was freed Wednesday following a long court battle to force the state to honor a governor's clemency order."
Posted at 13:58 by Howard Bashman



"President is framing a federal marriage amendment correctly": Terry Eastland, publisher of The Weekly Standard, has this op-ed today in The Dallas Morning News.
Posted at 13:54 by Howard Bashman



"No death penalty for minors": This editorial appears today in The Denver Post.
Posted at 13:45 by Howard Bashman



From soup to nuts: The Associated Press is reporting that "Jury Rejects Claim Soup Drove Man Nuts." And The Palm Beach Post reports that "Customer suing over Shoney's soup gets just $407."
Posted at 10:30 by Howard Bashman



"Judge's term hastily ends in resignation; Charles W. Cope, notorious for events outside the courtroom, suddenly leaves the bench." This article appears today in The St. Petersburg Times. And The Tampa Tribune reports that "Judge Cope Suddenly Resigns."
Posted at 07:33 by Howard Bashman



In news from Mississippi: The Clarion-Ledger today contains articles headlined "Federal court OKs Ayers settlement; Ruling may free up $503 million for black colleges, or be appealed"; "Maker of Propulsid seeks reversal of jury award"; and "Diaz attorneys: Drop charges; Motion to judge says justice acted properly by recusing himself in cases."
Posted at 07:30 by Howard Bashman



Not the way most alumni would like to be depicted in their university's student newspaper: The Daily Iowan reports today that "Supreme Court hears UI alum's OWI case."
Posted at 07:27 by Howard Bashman



"Abbott pushing court to uphold state HMO law": The Houston Chronicle today contains an article that begins, "Attorney General Greg Abbott pressed the U.S. Supreme Court on Tuesday to uphold a Texas law allowing patients to sue health maintenance organizations if injuries result from denied coverage. The high court will hear oral arguments March 23 on behalf of the state law. It will consider the lawsuits of two Texans who say their insurers proved harmful to their health."
Posted at 07:15 by Howard Bashman



"Convict to go free in '64 death; The release of Louis C. Mickens-Thomas will stir up old pains, the victim's family says." The Philadelphia Inquirer today contains this report. And The Philadelphia Daily News reports that "Release has victim's kin anxious; Convicted of '64 murder, 75-year-old man still professes his innocence."
Posted at 07:10 by Howard Bashman



"GOP map to court; Lawmakers want U.S. justices to freeze districts": This article appears today in The Rocky Mountain News, which also contains a related article headlined "Republican move no shock." The Associated Press, meanwhile, reports that "GOP asks Supreme Court to act on Colo. redistricting."
Posted at 06:56 by Howard Bashman



"Inmate's IQ could prevent execution; Summit prosecutors believe convicted killer fakes mental retardation": The Akron Beacon Journal today contains this article.
Posted at 06:55 by Howard Bashman



"GOP split on memos: Factions battle on strategy for Bush’s judicial nominees." This article appears in today's edition of The Hill. Also in today's issue, Byron York has an essay entitled "In the memos case, the Democrats are looking for a scalp."
Posted at 06:40 by Howard Bashman



"High Court Duck Blind": This editorial appears today in The Washington Post. The Detroit Free Press today contains an editorial entitled "Cheney-Scalia: Supreme Court justice should sit out energy case." The San Antonio Express-News today contains an editorial entitled "Duck hunt raises questions." And The Dallas Morning News today contains an op-ed by Law Professor Steven Lubet entitled "Hunting Buddies: This Supreme Court justice showed poor judgment."
Posted at 06:30 by Howard Bashman



Would-be criminals please avert your eyes: Law Professor Eugene Volokh announced here yesterday that he has posted online a draft of his law review article-to-be, "Crime-Facilitating Speech." The very first footnote, after identifying the author and setting forth the obligatory thank-yous, states:
This article includes the URLs of many crime-facilitating Web pages that I give as examples. All these URLs can be found using a quick google search, so I do not believe that my including the URLs will materially help any would-be criminal readers.
Thank goodness no would-be criminals are among the many readers of "How Appealing."

By the way, here's my first proposed edit -- Google spells its name with a capital letter.
Posted at 01:01 by Howard Bashman



Tuesday, January 27, 2004
The Associated Press is reporting: Now available online are articles headlined "Western Federal Judges Rip New Law"; "Court: Accused Nazi Can't Be U.S. Citizen" (access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link); "Judge Issues $116M Verdict Against Hamas"; and "Closing Arguments Held in $3M Embryo Suit."
Posted at 23:25 by Howard Bashman



In Tuesday's newspapers: In The New York Times, Linda Greenhouse reports that "Supreme Court to Review Using Execution in Juvenile Cases." An article reports that "Citing Free Speech, Judge Voids Part of Antiterror Act." In other terror-related news, "Panel Says a Deported Saudi Was Likely '20th' Hijacker." An article reports that "Florida Youth Who Got Life Term for a Killing Is Freed at 16." In other news, "Britain Poised to Approve Medicine Derived From Marijuana." An article reports that "As President, Not Candidate, Bush Renews Criticism of Suit." In local news, "Working Women Dominate the Jury For Stewart's Trial"; "Connecticut Lawmakers Set Up Panel on Governor's Impeachment"; "Another Impeachment, More Daunting": and "A Lawyer-Poet Unmoved by Tributes." And an editorial is entitled "The Politics of Security."

In The Washington Post, Charles Lane has articles headlined "A Death Penalty Revisited: High Court to Review Sentence of Man Who Killed at 17" and "Advice on Right to Counsel Upheld; 'No Precedent' Noted in Issue of Recusal Over Hunting Trip." In other news, "Part of Patriot Act Is Struck Down; Ban on 'Expert Advice' to Terrorist Groups Vague, Judge Says." Front page articles are headlined "9/11 Panel Faults U.S. For Letting Hijackers In" and "Granted Asylum, Nun Held in Va. Jail; Tibetan Entangled in Post-9/11 Caution." In other news, "Judge Limits Martha Stewart Defense Tactics." An article reports that "Judge Rules U.S. Erred In Arresting Russian; Emigre May Be Freed During Deportation Appeal." And in business news, "Europeans Lean Toward Tough Microsoft Ruling."

In The Los Angeles Times, David G. Savage reports that "Supreme Court to Review Death Penalty for Teens" and "High Court Won't Review Scalia's Recusal Decision." In related news, "High Court Rejects Bid by Luster to Appeal." An article reports that "Judge Rules Against Patriot Act; The L.A. federal jurist declares unconstitutional the ban on giving 'expert advice or assistance' to terrorist organizations and calls wording vague." In other news, "Florida Teen Jailed in Slaying Is Freed; Lionel Tate is expected to plead guilty to second-degree murder in exchange for a reduced sentence in playmate's death." In news from Sacramento, "Gov.'s Loan for Recall Ruled Illegal; Borrowing $4.5 million broke campaign law, a judge says. Aides blame error on ethics panel and say Schwarzenegger won't appeal"; "Assembly OKs Online Sex Offender Listing"; and "Assembly OKs Prison Tobacco Ban; Some lawmakers hope the bill will be amended to include provisions for helping inmates kick the habit. The Senate OKs 17 Davis appointments." In Marine-related news, "Marine Pleads Guilty to Attempted Murder" and "Hearing Opens for 3 Marines Accused of Brutality; Prosecutor says anger at ambush of U.S. convoy led to beating of Iraqi POWs, and one's death. Defense says any force used was appropriate." In news from New York, "Stewart's Lawyer Targets Witness; The defense raises the issue of whether Douglas Faneuil was advised to lie." An article reports that "Clues Missed on 9/11 Plotters; Investigators, saying eight men had doctored passports, challenge FBI and CIA claims. Alleged mastermind was given a visa despite charges." In other news, "Copyright Suit Spotlights College-Area Copy Centers." And an editorial is entitled "Stop the Legal Shenanigans."

In The Boston Globe, Lyle Denniston reports that "Court to rule on death penalty; Case concerns those who kill as youths." In news from Chicago, "Slavery reparations lawsuit dismissed; Families had argued that firms benefited." An article reports that "Unions lend voice, might to back gay marriage." In other news, "Judge views Sampson as mentally ill." And an editorial is entitled "Police fingerprints."

The Washington Times reports that "Supreme Court to rule on execution of minors." In other news, "Patriot Act rule rejected by judge." And an article reports that "Bush seeks to contain 'junk' medical lawsuits."

In The Christian Science Monitor, Warren Richey reports that "Court announces review of death penalty for minors; The Supreme Court agrees to take a Missouri case that examines whether a 'national consensus' has emerged."

And finally, USA Today reports that "Supreme Court to revisit executions of juvenile killers; Mo. justices cite lack of 'moral judgment.'"
Posted at 23:05 by Howard Bashman



Available online at law.com: Jonathan Ringel reports that "Judges Cast Skeptical Eyes on Southern Co. Race Suit; 11th Circuit weighs district court's authority to certify class action." An article is headlined "Litigate or Mitigate? U.S. Supreme Court opinion puts a wrinkle in death penalty appeals." An article reports that "Martha Stewart's Lawyer Blasts Government as Overzealous; Prosecutor claims she and broker lied about sale of ImClone stock." Jonathan Groner has an article headlined "Tort Reform Battleground: Business lobby and trial lawyers gear up for judicial elections." And in other news, "Suit Challenges Expanded DNA Law; ACLU in New Jersey claims mandatory collection violates right to 'bodily integrity.'"
Posted at 22:45 by Howard Bashman



"Senate Judiciary Computer Probe Centers on GU Alumnus": This article appears today in The Hoya of Georgetown University.
Posted at 20:37 by Howard Bashman



"Court Rejects Ayers Appeal": The Associated Press has this report on a ruling that the U.S. Court of Appeals for the Fifth Circuit issued today.
Posted at 19:09 by Howard Bashman



"Lawyer: McDonald's coffee case different." This article appears today in The Belleville News-Democrat. (Via "Obscure Store.")
Posted at 19:01 by Howard Bashman



How quickly they forget: Several readers have emailed to note that Jesse J. Holland's AP report, which I first linked to in the post immediately below this one, incorrectly suggests that Miguel A. Estrada had been nominated to serve on the U.S. Court of Appeals for the Sixth Circuit.
Posted at 18:41 by Howard Bashman



"Frist's aide says files not hacked; He believes probe looking at records prior to work with senator": This article appears today in The Knoxville News-Sentinel. And Jesse J. Holland of The Associated Press offers an article headlined "Memo-Leak Probe Expands to Frist's Office" that begins, "An aide to Senate Majority Leader Bill Frist has been put on leave during an investigation into how Republicans gained access to Democratic memos concerning opposition to President Bush's judicial nominees."
Posted at 16:56 by Howard Bashman



In news from Utah: The Salt Lake Tribune today contains articles headlined "Judge grills sides in Plaza dispute" and "House OKs bill against firing squad." And The Deseret Morning News today reports that "Judge to rule on plaza suit; ACLU says site still functions as if it were public park" and "Costs of abortion ban debated."
Posted at 16:36 by Howard Bashman



"Retired Judge Chosen for Peterson Trial": Judge number two has been selected for the Scott Peterson murder trial, The Associated Press reports here.
Posted at 16:30 by Howard Bashman



"Part of Patriot Act ruled unconstitutional; Ban on giving 'expert advice or assistance' to foreign terror groups called too vague": Bob Egelko has this article today in The San Francisco Chronicle.

In other coverage, The New York Times reports that "Citing Free Speech, Judge Voids Part of Antiterror Act." The Washington Post reports that "Part of Patriot Act Is Struck Down; Ban on 'Expert Advice' to Terrorist Groups Vague, Judge Says." David Rosenzweig of The Los Angeles Times reports that "Judge Rules Against Patriot Act; The L.A. federal jurist declares unconstitutional the ban on giving 'expert advice or assistance' to terrorist organizations and calls wording vague." The Sacramento Bee reports that "Key part of Patriot Act struck down by judge." And The Washington Times reports that "Patriot Act rule rejected by judge."

Yesterday's ruling of the U.S. District Court for the Central District of California can be accessed at this link.
Posted at 16:16 by Howard Bashman



Does "and" mean "and," or does it mean "or"? Sunday's edition of The Wichita Eagle contained an article headlined "Sentences for repeat DUIs rest on a single word; The Kansas Supreme Court hasn't issued an opinion on a case that could mean shorter sentences for those convicted of multiple DUIs." Relatedly, The Associated Press reports that "Sentence in drunken-driving death turns on single word: 'and.'"
Posted at 16:11 by Howard Bashman



"Group sues to restore Confederate plaques": The Associated Press provides this report from Austin, Texas. And The San Antonio Express-News, on Sunday, reported that "'Ghosts' haunt capital."
Posted at 16:03 by Howard Bashman



"High court's productivity inspected": Robert Landauer, a columnist for The Oregonian, today has this op-ed about the Oregon Supreme Court.
Posted at 15:38 by Howard Bashman



"Judge dismisses suit on school drug testing": The Fairbanks Daily News-Miner today contains this article.
Posted at 15:36 by Howard Bashman



"Judge drops suit seeking reparations; Slave descendants vow to appeal": This article appears today in The Chicago Tribune. And The Chicago Sun-Times reports that "Judge rejects slavery reparations lawsuit." I provided instructions yesterday, in a post you can access here, on how to access this decision online.
Posted at 15:26 by Howard Bashman



Ten Commandments news: The Birmingham News reports that "Retired jurists take oaths as court for Moore appeal," while an editorial is entitled "Pryor appointment: Moore's supporters take aim at Pryor judgeship." The Montgomery Advertiser reports that "Appeal justices sworn in to positions" and "Man found guilty of criminal trespassing," while an editorial is entitled "Attacking Pryor just more proof."

Elsewhere, The Idaho Statesman reports that "Monument supporters talk about a recall; Boise leaders 'misled' public, group says" and "Round-the-clock vigil promised to keep monument in Boise park." Finally, from Pennsylvania, The York Dispatch reports that "10 Commandments to move; Hanover decision draws fire, vows of a fight."
Posted at 14:31 by Howard Bashman



"Ruling in Las Vegas patent suit could have wide implications": The Associated Press provides this report. The Boston Globe today reports that "Cognex wins long-running patent suit; Technology users will no longer pay fees for licensing." And Bloomberg News reports that "US federal judge invalidates billion dollar scan patents." You can access last Friday's decision of the U.S. District Court for the District of Nevada at this link.
Posted at 14:01 by Howard Bashman



Taxpayer victory: A unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit today overturned a criminal conviction under Wisconsin law for possessing with intent to deliver cocaine because the defendant had already been subjected to a tax assessment and monetary seizure based upon his possession of the same drugs. The criminal conviction, the court held, violated the defendant's rights under the Double Jeopardy Clause of the U.S. Constitution. You can access today's ruling at this link.
Posted at 13:31 by Howard Bashman



Big tobacco isn't allowed to use equitable defenses to defeat the federal government's huge RICO damages action: In the federal government's lawsuit, according to the opinion, "The Government seeks injunctive relief and $289 billion for what it alleges to be an unlawful conspiracy to deceive the American public." You can access Friday's ruling of District Judge Gladys Kessler of the U.S. District Court for the District of Columbia at this link.
Posted at 12:38 by Howard Bashman



Contributing to legal scholarship, one question at a time: Law Professor Arthur D. Hellman will have the lead essay published in Volume 5, Issue 2 of The Journal of Appellate Practice and Process. Professor Hellman's article bears the title "Assessing Judgeship Needs in the Federal Courts of Appeals: Policy Choices and Process Concerns." You can access it online through SSRN via this link. I'm pleased to report that the article contains multiple references to answers provided in response to questions posed in this blog's monthly "20 questions for the appellate judge" feature.
Posted at 12:07 by Howard Bashman



"Appeal bonds are focus of hearing": The St. Louis Post-Dispatch reports here today that "Madison County was Exhibit A in a hearing Monday to determine whether Illinois should overhaul a key part of its civil suit system." In related news, The Edwardsville Intelligencer last week reported that "State court will eye appeal bonds."
Posted at 11:42 by Howard Bashman



"Suit aims to block race ballot drive; Attorneys who prevailed before high court argue referendum circumvents ruling": This article appears today in The Detroit News. And The Associated Press is reporting that "Group files lawsuit to block race ballot drive." The Web site of the Michigan Civil Rights Initiative can be accessed here.
Posted at 11:31 by Howard Bashman



"Is There a Constitutional Right To Promote the Use of Sex Toys? A Texas Arrest Raises the Question." Law Professor Joanna Grossman has this essay today at FindLaw.
Posted at 11:28 by Howard Bashman



"New death penalty appeal focuses on warrant technicality; Supreme Court's rulings on death penalty spawn confusion": David Pasztor of The Austin American-Statesman today has an article that begins, "Like a broken traffic light abruptly switching between red and green, the U.S. Supreme Court has fomented confusion during the past two months with a series of decisions in death penalty cases that have left legal experts wondering if the nation's highest court has a short in its fuse box."
Posted at 10:02 by Howard Bashman



What would Alanis Morissette say? The Lexington Herald-Leader reports today that "Senator's wife sues for damages he wants to curb; Malpractice claims are at issue."
Posted at 09:48 by Howard Bashman



"Malvo lawyers eye juveniles case; The U.S. Supreme Court's ruling could shield the teenager from execution": This article appears today in The Richmond Times-Dispatch.

In other coverage of yesterday's announcement that the U.S. Supreme Court will rule on the constitutionality of imposing the death penalty for crimes committed at the age of sixteen or seventeen, Linda Greenhouse of The New York Times reports that "Supreme Court to Review Using Execution in Juvenile Cases." Charles Lane of The Washington Post has an article headlined "A Death Penalty Revisited: High Court to Review Sentence of Man Who Killed at 17." David G. Savage of The Los Angeles Times reports that "Supreme Court to Review Death Penalty for Teens." Lyle Denniston of The Boston Globe reports that "Court to rule on death penalty; Case concerns those who kill as youths." Jan Crawford Greenburg of The Chicago Tribune reports that "Court to decide young killers' fate; Justices to rule on executing juveniles." Stephen Henderson of Knight Ridder Newspapers reports that "Supreme Court to consider ending execution of juveniles." Warren Richey of The Christian Science Monitor reports that "Court announces review of death penalty for minors; The Supreme Court agrees to take a Missouri case that examines whether a 'national consensus' has emerged." USA Today reports that "Supreme Court to revisit executions of juvenile killers; Mo. justices cite lack of 'moral judgment.'" And The Washington Times reports that "Supreme Court to rule on execution of minors."

The St. Louis Post-Dispatch reports that "Court revisits death penalty for juveniles." Bob Egelko of The San Francisco Chronicle reports that "Justices to look at executions of juveniles; Ruling in Missouri case evoked 'evolving standards of decency.'" The Houston Chronicle reports that "High court will rule on under-18 killers; Capital cases from Harris County to be affected." The Fort Worth Star-Telegram reports that "Fate of juvenile killers back in court." The Pittsburgh Post-Gazette reports that "U.S. Supreme Court to decide on juvenile executions." The Baltimore Sun reports that "High court agrees to consider legality of juvenile executions; Four on Supreme Court called practice 'shameful'; Possible implications for Malvo; Executing young killers might be declared 'cruel.'" And The Kansas City Star reports that "Teen death penalties reviewed; Supreme Court will hear Missouri case."

My initial coverage from early September 2003 of the ruling from the Supreme Court of Missouri that the U.S. Supreme Court agreed to review yesterday can be accessed here. The U.S. Supreme Court's decision from 1989 allowing the death penalty for sixteen-year-old offenders can be accessed here. And my post from early this morning noting that the State of Florida in November 2002 lowered the minimum age to receive the death penalty to sixteen can be accessed here.
Posted at 06:35 by Howard Bashman



"High Court Won't Review Scalia's Recusal Decision": David G. Savage of The Los Angeles Times today provides this report.
Posted at 06:30 by Howard Bashman



What trend against imposing the death penalty on sixteen- and seventeen-year-olds? With all the talk about the U.S. Supreme Court's announcement Monday that it was granting review to consider the constitutionality of imposing the death penalty on account of crimes committed by individuals who are sixteen or seventeen years old, and the supposed nationwide trend against imposing the death penalty for crimes committed before the age of eighteen, one should not overlook (as the media seems to have) that the citizens of the State of Florida in November 2002 voted overwhelmingly in favor of an amendment to that State's constitution that authorized the death penalty for sixteen-year-olds.

Back on November 8, 2002, in a post you can access here, I wrote:
Florida voters overwhelmingly approve constitutional amendment allowing execution of sixteen- and seventeen-year-old offenders: At the ballot box on Tuesday, Florida voters approved by a margin of seventy percent for and thirty percent against an amendment to that State's Constitution that will allow the death penalty to be imposed for capital offenses committed by sixteen- and seventeen-year-olds. This development would seem to counter a trend that was recently relied on by four U.S. Supreme Court Justices in arguing that the Court should abolish the death penalty for anyone who commits a crime while under the age of eighteen.
I'm sure the State of Missouri won't overlook this development in its merits briefs to be filed in the U.S. Supreme Court.
Posted at 00:12 by Howard Bashman



Monday, January 26, 2004
In Monday's newspapers: The New York Times reports that "Sex-Offender Release Policy Faces Change in New Jersey." In other news, "Plans for Wireless Directory Raise Concerns About Privacy." And an article reports that "Rule Change May Alter Strip-Mine Fight."

The Washington Post contains an article headlined "California's New Standard of Law and Order: Willing to Support Parole, Schwarzenegger Is on Track to Review His First Death-Penalty Case." And editorials are entitled "State of Gay Unions" and "What a Life Is Worth."

The Los Angeles Times contains an article headlined "A Second Chance for a Young Killer; Lionel Tate, who had been sentenced to life in prison for beating a playmate to death, could go free as soon as today under a plea agreement." In other news, "Putting Sex to a Vote: A Berkeley group begins a drive to qualify a city ballot measure easing prostitution laws." An article reports that "U.S. Billed for Lost Water; Judge rules that irrigators whose supplies were decreased to save endangered fish are owed $14 million." In other local news, "Trial May Clarify Laws on City-Issued Credit Cards; Decisions in Compton cases of alleged misuse of public funds could provide precedents for politicians across the state" and "Skid Row Hotel's Fine Is Distributed; The Midnight Mission, LAPD, Legal Aid Foundation and city's general fund each receive part of $250,000 paid to settle a lawsuit." Patrick Moore has an op-ed entitled "Gays: Assimilated and Asexual?" And letters to the editor appear under the heading "The Justice and the Veep: a Worrisome Friendship."

The Boston Globe reports that "Gay-marriage opponents rally across state." And in news from California, "Porn ignites firehouse fray; Firefighters walk off job over cadet's dismissal as sparks fly over website."

The Washington Times reports that "Indians want jurisdiction to combat terrorism threat."

USA Today reports that "Lawyers mount a legal offensive in Bryant's defense; No angle in rape case goes unexplored by the pro basketball star's attorneys." An editorial is entitled "Celebrity justice." Another editorial is entitled "Preserve universities' right to shape student community," to which U.S. Senator John Edwards (D-NC) has an op-ed in response entitled "End special privilege." And Gail Mathabane has an op-ed entitled "Gays face same battle interracial couples fought."
Posted at 22:40 by Howard Bashman



Justice John Paul Stevens does lunch: "Wonkette" has the Gawker-like details (which is what you'd expect from Gawker's Washington-based relative).
Posted at 22:30 by Howard Bashman



Available online from law.com: Tony Mauro reports that "Supreme Court to Revisit Juvenile Execution Issue; Justices also decide an important 'Miranda' case in favor of criminal defendants." In other news, "Former U.S. Judges Enter Fray Over Guantanamo Detentions; Gibbons, Orlofsky and Sarokin argue for right of habeas review." And an article reports that "2nd Circuit Upholds Injunction on Web Hosting Firm; Circuit says company can be barred from gaining access to data for mass marketing."
Posted at 22:25 by Howard Bashman



U.S. Court of Appeals for the Fifth Circuit issues first decision recognizing recess appointee Charles W. Pickering, Sr.'s presence on that court: See footnote one of this en banc opinion issued today. In the decision, the Fifth Circuit holds that a federal trial court's failure to give a criminal defendant the opportunity to address the court at sentencing required by Federal Rule of Criminal Procedure 32 is, in the absence of an objection by the defendant, subject only to plain error review on appeal.
Posted at 20:57 by Howard Bashman



"Van de Velde settles suit; Quinnipiac to pay Jovin murder suspect $80K": This article appears today in The Yale Daily News.
Posted at 20:53 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Attorney Challenges Utah Polygamy Ban"; "Tribe Appeals Ruling on Smoke Shop Raid"; "Attorneys Oppose Cameras at Nichols Trial"; "Kerry Says No 'Games' on Abortion"; "Boy in 'Wrestling Death' Freed From Jail"; and "Jury Clears Cow in Car Accident."
Posted at 20:50 by Howard Bashman



"Court announces review of death penalty for minors; The Supreme Court agrees to take a Missouri case that examines whether a 'national consensus' has emerged": Warren Richey will have this article in Tuesday's issue of The Christian Science Monitor.
Posted at 20:01 by Howard Bashman



"Supreme Court to Consider Legality of Executing Teenagers": Linda Greenhouse of The New York Times provides this report.
Posted at 19:57 by Howard Bashman



"Supreme Court to Review Executions of Juvenile Killers": Nina Totenberg had this report (Real Player required) on tonight's broadcast of NPR's "All Things Considered."
Posted at 19:52 by Howard Bashman



"Best justice has common sense": This editorial appears today in The Seattle Post-Intelligencer.
Posted at 18:03 by Howard Bashman



Reuters is reporting: The following articles are available online: "Top Court to Decide Juvenile Death Penalty Case"; "U.S. Supreme Court lets verdict against RJR stand"; "Federal Judge Strikes Down Part of Patriot Act"; "Court strikes down NYC predatory lending law"; "Court Frees Teen Jailed for Killing Playmate"; and "Conn. Governor Impeachment Panel Gets Unanimous OK."
Posted at 17:42 by Howard Bashman



"Chief Justice Balks at Ethical Questions": Gina Holland of The Associated Press provides this report.
Posted at 17:29 by Howard Bashman



"Repeal sodomy laws once and for all": This editorial appears today in The Virginian-Pilot. The Philadelphia Inquirer today reports that "Same-sex couples find N.J. laws appealing; Partners say they are relocating to the state because of adoption, hospital visitation, inheritance-tax exemptions and other rights." The Atlanta Journal-Constitution today contains an article headlined "Parties in a quandary about gay marriage." And The Associated Press reports that "Domestic Partner Registry Opens in Ohio."
Posted at 17:25 by Howard Bashman



"Justices May Curb Death Penalty for Juveniles": David G. Savage of The Los Angeles Times provides this report.
Posted at 16:15 by Howard Bashman



"Stars are rising... as defendants; 'Four trials of the century' & some with potential": This article appears today in The Philadelphia Daily News.
Posted at 15:52 by Howard Bashman



"Part of Patriot Act Ruled Unconstitutional": The Associated Press provides this report.

Update: Courtesy of a good friend and most enjoyable dinner companion, you can access the ruling issued late last week by the U.S. District Court for the Central District of California at this link.
Posted at 15:05 by Howard Bashman



"Supreme Court will revisit execution of teenage killers": CNN.com offers this report. And The St. Louis Post-Dispatch has republished this interview with the Missouri defendant sentenced to death for a murder he committed at the age of seventeen whose case the U.S. Supreme Court agreed to review today.
Posted at 14:20 by Howard Bashman



"Judge Dismisses Slave Reparation Case": The Associated Press provides this report. You can access today's ruling of the U.S. District Court for the Northern District of Illinois via this opinion search page by searching for opinions written by District Judge Charles R. Norgle.
Posted at 14:09 by Howard Bashman



"The Monday Profile: Diarmuid O'Scannlain; Conservative helps balance liberal court." This article appears today in The Oregonian. Circuit Judge Diarmuid F. O'Scannlain serves on the U.S. Court of Appeals for the Ninth Circuit, and he was the second appellate judge to participate in this Web log's "20 questions for the appellate judge" interview feature. His "20 questions" interview can be accessed here.
Posted at 13:20 by Howard Bashman



Mike Rowe, in settlement, agrees to change his name to Ned Scape: BBC News reports that "Boy swaps MikeRoweSoft for Xbox." The Seattle Post-Intelligencer reports that "Microsoft, teen reach a tech of a deal." The Seattle Times reports that "Microsoft lightens up, ends fight against MikeRoweSoft." The Associated Press reports that "Microsoft, Mike Rowe, make up." And Reuters reports that "Microsoft Settles with Teen Over Web Site."
Posted at 12:40 by Howard Bashman



Even more news from the U.S. Supreme Court: From The Associated Press, Gina Holland reports that "Supreme Court Reaffirms Miranda Ruling." Anne Gearan reports that "Justices Will Revisit Teen Executions" and that "Court Won't Hear Ex-Mafia Hitman's Case." And in other coverage, "Reynolds Tobacco Loses Supreme Court Plea" and "Justices Reject Appeal by Cosmetics Heir."

Finally, Reuters reports that "Supreme Court to Decide Juvenile Death Penalty Case."
Posted at 12:20 by Howard Bashman



No surprise here (at least not yet): The U.S. Supreme Court's decision today to grant review of a ruling in which the Supreme Court of Missouri held that imposing the death penalty for crimes committed before the age of eighteen is unconstitutional cruel and unusual punishment comes as no surprise. I predicted the grant of review in this case back in early September 2003 in a post entitled "Supreme Court of Missouri applies for U.S. Supreme Court smackdown." (The opinion itself issued in late August 2003, when I was on my annual late August vacation.) In my post from early September 2003, I wrote extensively about the Supreme Court of Missouri's ruling, calling it both "audacious" and "unnecessary."

How will the U.S. Supreme Court rule? Only Justices Sandra Day O'Connor and Anthony M. Kennedy know for sure. In order to uphold current U.S. Supreme Court precedent allowing the death penalty for crimes committed on or after a defendant's sixteenth birthday, both of these Justices will have to vote to adhere to the outcome they agreed with in 1989, when the Court last considered this question on the merits.
Posted at 10:30 by Howard Bashman



Today's U.S. Supreme Court opinions and orders: Today's big news from the Supreme Court of the United States will be the Court's grant of review in a case challenging the constitutionality of imposing the death penalty for crimes committed before the age of eighteen. Anne Gearan of The Associated Press reports that "Justices Will Revisit Teen Executions."

The Court issued two opinions in argued cases today. 1. Justice Anthony M. Kennedy issued the opinion of the Court in Lamie v. United States Trustee, No. 02-693, and the judgment under review was affirmed. You can access the syllabus here; Justice Kennedy's majority opinion here; Justice John Paul Stevens' opinion concurring in the judgment here; and the oral argument transcript here. In a nutshell, the Court agreed with the Fourth Circuit that in a Chapter 7 bankruptcy proceeding, Section 330(a)(1) of the Bankruptcy Code does not authorize payment of attorney's fees unless the attorney has been appointed under Section 327 of the Code.

2. Justice Sandra Day O'Connor issued the opinion for a unanimous Court in Fellers v. United States, No. 02-6320, and the judgment under review was reversed and remanded. You can access the syllabus here; Justice O'Connor's opinion here; and the oral argument transcript here. This case presented the Court with the opportunity to decide whether statements obtained from a criminal defendant who was read his rights under Miranda v. Arizona could be introduced as substantive evidence against the defendant if the police originally obtained the substance of the statement from the defendant in violation of Miranda. The Court, however, ducked that question, instead sending the case back to the Eighth Circuit for a determination whether the defendant's statement should be suppressed because of a Sixth Amendment violation.

The Court's Order List can be accessed here. The Court granted review only in the one case already mentioned, above. Additionally, the Court called for the views of the Solicitor General in one case, and denied Michael Newdow's motion to add parties in his challenge to the Pledge of Allegiance.
Posted at 10:01 by Howard Bashman



But did he float like a butterfly? The Associated Press reports that "Man Comes to Court in Bumblebee Costume."
Posted at 09:10 by Howard Bashman



On the agenda: The Supreme Court of the United States is scheduled to issue an Order List, and perhaps one or more opinions in argued cases, at 10 a.m. today.
Posted at 09:00 by Howard Bashman



"Clinton and Bush court appointments: a study in contrasts." John E. Clay, a retired senior partner of Mayer, Brown, Rowe & Maw, has this op-ed today in The Sarasota Herald-Tribune.
Posted at 08:48 by Howard Bashman



Duck, duck, recuse, part two: The Denver Post today contains an editorial entitled "Scalia's conflict of interest." The Morning Call of Allentown, Pa. contains an editorial today entitled "A Supreme Court justice should have better radar for appearances of conflict." And letters to the editor appear today in The Los Angeles Times under the heading "The Justice and the Veep: a Worrisome Friendship."
Posted at 08:44 by Howard Bashman



Know your filibusterees: The online publication The Sierra Times today offers an essay entitled "Bush/Rove Political Strategy: Triangulation or Capitulation?" that states, in its fifth paragraph:
In a recent gesture of apparent atonement, President Bush has finally taken the offensive in the matter of the courts. By installing Alabama Attorney General Charles Pickering on the Fifth Circuit Court of Appeals, the President effectively bypassed the unconstitutional filibuster of judges being waged by Senate Democrats. However, this recess appointment has its own set of drawbacks. Pickering recently spearheaded the efforts to oust Alabama Chief Justice Roy Moore for his refusal to remove a monument depicting the Ten Commandments from the Alabama Supreme Court building.
Human Events Online, meanwhile, asserts that the White House may have been willing to make more than just one recess appointment.

The Associated Press reports today that "Mississippi GOP gets political mileage out of Pickering judicial battle." And The Pantagraph of Bloomington-Normal, Illinois today contains an editorial entitled "Pickering appointment can serve two purposes."
Posted at 08:32 by Howard Bashman



"Ashcroft And Congress Are Pandering To Punitive Instincts": Stuart Taylor Jr. has this essay in today's issue of National Journal.
Posted at 08:25 by Howard Bashman



"Appellate Advocacy in the Pennsylvania Courts": I am pleased to announce that I will be one of the faculty members for this upcoming continuing legal education course for lawyers sponsored by the Pennsylvania Bar Institute, Pennsylvania's leading CLE provider. The particular panel on which I will be participating is the one entitled "Incorporating Technology into Appellate Practice." Also on this panel are two judges serving on the Superior Court of Pennsylvania. This course will be presented live in Mechanicsburg, Pa. (just outside of Harrisburg) on February 26-27, 2004.
Posted at 08:14 by Howard Bashman



Sunday, January 25, 2004
Elsewhere in Sunday's newspapers: The Los Angeles Times reports that "Convicted Killer Seeks Clemency Hearing." In other news, "Texas Church Cards People Who Patronize Adult Stores; A pastor photographs vehicle license plates and mails the pictures to customers' homes. He's bent on driving the businesses out of town." An article reports that "Justice Department Cuts Role of Advocate for Juveniles; The nonprofit, in part federally funded, cries politics; the agency sees a conflict of interest." In local news, "L.A. to Review Pacheco Firm's Proposed Deal; A city councilman less than a year ago, his ties to a law office lead to questions of a possible conflict of interest." And an editorial is entitled "Give 9/11 Panel More Time."

The Boston Globe reports that "Panel decries wrongful convictions." An article reports that "State's toughened crime policy has downside." In other news, "Guidelines sought on laws for sex offenders." In news from Nevada, "To identify 'John Doe' victims, investigators turn to the Web." An article is headlined "In Lieberman camp, a lawyer takes on the fine print." The Magazine section contains an article headlined "My Late-Term Abortion: President Bush's attempt to ban partial-birth abortions threatens all late-term procedures. But in my case, everyone said it was the right thing to do -- even my Catholic father and Republican father-in-law." An editorial is entitled "Cool ruling." U.S. District Judge Nancy Gertner has an op-ed entitled "Too little second chances for prisoners." And columnist Jeff Jacoby has an op-ed entitled "A little less freedom of speech."

The Washington Times reports that "Goat ban disrupts sacrifices." In other news, "Judge OKs survey of Head Start pay." And in local news, "State gets first openly gay delegate."
Posted at 23:25 by Howard Bashman



"Local Buddhists join suit over the Pledge; The U.S. Supreme Court will hear the Pledge of Allegiance case on March 24": This article appeared recently in The Walla Walla Union-Bulletin.
Posted at 22:46 by Howard Bashman



The San Francisco Chronicle is reporting: Today's newspaper contains articles headlined "Redwood City gets ready for Peterson trial" and "'I will be free someday'; Woman convicted in murder of warlock who 'owned' her is out of prison; now she's being held by the INS."
Posted at 22:33 by Howard Bashman



"Making her own case: Female lawyers earning respect." This article appears today in The Pantagraph of Bloomington-Normal, Illinois.
Posted at 21:04 by Howard Bashman



"Legislators seek to shield golf club": The Atlanta Journal-Constitution reported here yesterday that "State House Republicans will introduce a bill Monday that would stop Atlanta from punishing the Druid Hills Golf Club because the eastside club won't grant spousal benefits to partners of gay members."
Posted at 19:00 by Howard Bashman



"Scouts must pack their tents; The Supreme Court ruled in their favor, but membership issues still roil the Scouts." This article will appear in Monday's edition of The Christian Science Monitor.
Posted at 18:58 by Howard Bashman



"Is death row convict guilty of killing Johnstown woman? 'Innocence' reporters: Simmons case had holes." The Pittsburgh Post-Gazette contains this article today.
Posted at 13:31 by Howard Bashman



"Lawyers: Drug trust is target of fraud; They contend that thousands of bogus claims have been filed. The $3.75 billion fund benefits hurt diet-drug users." This article appears today in The Philadelphia Inquirer.
Posted at 13:30 by Howard Bashman



In Sunday's newspapers: The New York Times reports that "A Concerned Bloc of Republicans Wonders Whether Bush Is Conservative Enough." In other news, "'98 Killing Suspect Wins Some Redemption." An article is headlined "The Stewart Trial's Other Star." In music news, "Among the Jackson Faithful." In local news, "House Has History, Just Not the Right Kind." The Sunday Magazine contains an article headlined "The Tyranny of Copyright?" An editorial is entitled "Justice Scalia's Misjudgment." And the newspaper contains three marriage-related op-eds: Law Professor Dorothy A. Brown has an op-ed entitled "In Sickness, in Health and in the Tax Code"; attorney Shari Motro has an op-ed entitled "Single and Paying for It"; and Professor Laura Kipnis has an op-ed entitled "Should This Marriage Be Saved?"

The Washington Post reports that "N.Va. Looks To Be Next Stop for Sniper Case." In other news, "Guantanamo Spy Cases Evaporate; Chaplain and Arabic Translator Are Now Facing Only Lesser Charges." In local news, "Officer On Leave Worked In Pa.; Sick Pay Cost City $19,000 Last Year." An article is headlined "If These Walls Could Testify; A Famed Courtroom For Martha Stewart." And columnist Courtland Milloy has an essay entitled "Marcus Dixon Doesn't Belong In Ga. Prison."
Posted at 13:00 by Howard Bashman



"Abbey Gans, Victor Mather III": This marriage announcement appears today in The New York Times. Congratulations, Vic! He and I were "lifers" through thirteen years at Penn Charter and worked together there on The Mirror, the successor to the oldest student newspaper in the United States.
Posted at 12:51 by Howard Bashman



The Ten Commandments, in the news: The Associated Press reports here from Georgia that "The legal defense fund for former Alabama Chief Justice Roy Moore has pledged financial and legal support to Barrow County in its fight to display the Ten Commandments in the county courthouse." In related news, The Athens Banner-Herald reports that "Barrow County hearing set for next Friday."

Elsewhere, The Idaho Statesman reports that "Stone tablets will stay in park a little longer; Judge keeps Commandments monument in place until hearing."
Posted at 11:25 by Howard Bashman



"Courts seen chipping away at anti-terror powers": Reuters provides this report.
Posted at 11:24 by Howard Bashman



"Official declines to elaborate on Luna investigation": This article appeared Friday in The Baltimore Sun.
Posted at 11:22 by Howard Bashman



"Airline not liable in suit over rhyme; Jury rules quickly in discrimination case": This article appeared Thursday in The Kansas City Star. And in coverage from The Associated Press, "Jury sides with Southwest Airlines on 'eenie, meenie, minie, moe' quip."
Posted at 00:00 by Howard Bashman



Saturday, January 24, 2004
Successful female college triple jump athlete is not a federal appellate judicial recess appointee: The Canadian Press is reporting that "Charles of Pickering, Ont., wins second straight NCAA triple jump event." Charles of Pickering is not to be confused with Fifth Circuit Judge Charles W. Pickering, Sr.

Perhaps more on point for readers of this Web log, The Commercial Appeal of Memphis today contains an editorial entitled "Pickering choice flaunts a loophole."

By the way, is it appropriate to reminisce fondly about the time when the triple jump was known as the hop, skip, and jump?
Posted at 23:55 by Howard Bashman



In Saturday's newspapers: The Washington Times reports that "Top court to expedite hearing." In other news, "Court allows death-row move." And in local news, "Virginia House accepts marriage proposal"; "Union goes to court over airport workers"; and "Bills take tougher stance on illegals."

In The Boston Globe, Lyle Denniston reports that "Court rejects bid to redistrict Colo. map." An article reports that "Romney seeks a bill to ban gay marriage." And in local news, "Man freed in 1997 shooting of officer; Judge gives ruling after fingerprint revelation"; "Delahunt criticizes move to halt lawsuits; Feb. ruling expected in cases against FBI"; "Police unaware of access to database; Sex offender once was Woburn resident"; and "Secret life steals a promising future."

The Washington Post reports that "Cross-Burning Penalty Appealed; Justice Dept.'s Civil Rights Chief Argues for Stiffer Sentence." In business news, "Microsoft's Antitrust Sanctions Working So Far, Judge Says." An article reports that "Federal Judge Scolds Justice Dept. Lawyers." A front page article is headlined "Small Gets 2 Years' Probation; Smithsonian Secretary Bought Protected Artifacts." In local news, "Senior Official To Watch Over D.C. Retarded; Judge Orders Mayor To Make Assignment." And Alan Elsner has an op-ed entitled "America's Prison Habit."

The New York Times reports that "Top Illinois Court Upholds Total Amnesty of Death Row." In other news, "Judge Satisfied With Microsoft's Antitrust Case Compliance." An article reports that "Final Round in Jury Selection for the Martha Stewart Case Is Set for Monday." In news from the Nation's capital, "Smithsonian's Chief Admits Endangered-Bird Violations" and "Jury Said to Hear Evidence in C.I.A. Leak." And in local news, "Rowland Is Said to Set Up Defense Fund"; "City Cabdriver Admits He Lied to Federal Agents"; and "Life Sentence Sought for Rapist After Spree."

The Los Angeles Times reports that "Commutation of Illinois Death Sentences Upheld; State Supreme Court says former Gov. Ryan, who blocked executions, was within his rights." In other news, "One Legal Attack on Unocal Denied; Judge says subsidiaries, not the parent firm, are responsible for project tied to Myanmar abuse." In news relating to high-profile criminal prosecutions, "Race Enters the Picture; Attorney for Bryant, who is accused of rape, says during hearing that there is history of 'black men being falsely accused of this crime by white women'"; "Uncertainty Remains Over Judge for Peterson Case"; "TV Access to Blake Trial Limited; Judge says only opening statements, closing arguments and the verdict may be shown; Media outlets are contesting the ruling"; "Parts of Jackson Files Public; Judge agrees to unseal portions of a list showing items seized in a search at the singer's ranch; But an affidavit will remain secret"; and "Vendors look for Martha to perk up everyday living; Outside the courthouse, Stewart's name has yet to really move goods the way that Rosie did." And in local news, "Church to Pay $3 Million in Rape"; "Dismissal of Hundreds of Cases Sought; Chief public defender challenges Delgadillo's authority; Judges side with the city attorney"; "Police Drop Request for Picket-Sign Law; Huntington Beach chief had sought regulations so strikers' placards couldn't be used as weapons"; "Charge Filed in Posting of Oscar Candidates on Web"; "Parents Confront Sex Offender; Laguna Hills elementary tightens security and deputies pass out fliers to warn about the ex- convict, who lives eight yards beyond his limit"; and "Ex-High School Coach Gets a Year in Jail for Having Sex With Minor."
Posted at 22:44 by Howard Bashman



"Justice Scalia's Misjudgment": This editorial will appear in Sunday's edition of The New York Times.
Posted at 22:25 by Howard Bashman



Editorials appearing yesterday and today in The Dallas Morning News: Yesterday's issue contained an editorial entitled "Terror Trials: Military tribunals need civilian review." And today's newspaper contains a bunch of mini editorials under the heading "Hits and Misses." One in particular is of interest:
Blind spot justice

Last year, Justice Antonin Scalia was forced to take his vote off the table from this year's pledge of allegiance "under God" case because of a speech he gave to the Knights of Columbus. Now his impartiality can be questioned again after he took a multi-day duck-hunting trip with Dick Cheney – just weeks after the Supreme Court had agreed to hear the controversial case brought against the vice president for his secret energy task force. Appearances count. Justice Scalia was true to his friend, but he let the nation down.
You can access all of today's "Hits and Misses" at this link.
Posted at 20:02 by Howard Bashman



"School Honor Rolls Under Privacy Scrutiny": The Associated Press provides this report.
Posted at 19:50 by Howard Bashman



And in other news from Utah: The Deseret Morning News today reports that "High court removes Utah judge." In other coverage, The Salt Lake Tribune reports that "Judge fired from bench." You can access yesterday's ruling of the Supreme Court of Utah at this link.

Also, The Tribune reports that "Senate passes ban on partial-birth abortions," while the Morning News reports that "Ban on partial-birth abortions advances; Lawmakers hoping feds cover any legal challenge."
Posted at 18:03 by Howard Bashman



"Death of fetus ruled a murder": This article appears today in The Salt Lake Tribune. And The Deseret Morning News reports that "Utah fetal homicide statute is upheld." You can access yesterday's ruling of the Supreme Court of Utah at this link.
Posted at 17:55 by Howard Bashman



Today's news relating to the Scott Peterson murder trial: The San Mateo County Times today contains articles headlined "The Case Against Scott Peterson: Little hard evidence has been presented against Laci Peterson's husband, but the trial likely will produce some revelations"; "Peterson moves quietly into County jail"; "Trial's economic impact downsized"; "Peterson trial costs raising concerns; San Mateo County officials worrying about reimbursement from the state"; and "Early Peterson trial verdict: LeClair guilty." The Contra Costa Times today reports that "Judge issue takes a turn in Peterson trial." The Modesto Bee contains articles headlined "Peterson surprise: Judge is off case"; "Peterson fights for right to book, movie deals"; and "Peterson now in Redwood City." Finally for now, The San Francisco Chronicle reports that "Peterson now held in Redwood City jail."
Posted at 17:00 by Howard Bashman



"Leno to counter Bush on gay marriage; Bill would recognize licenses, boost benefits": The San Francisco Chronicle today contains this report.
Posted at 16:54 by Howard Bashman



"Bill of Rights belongs to N.C.; Feds will hold onto copy in case other courts wish to hear arguments": This article appears today in The Charlotte Observer. And The News & Observer of Raleigh today contains an article headlined "Judge: Send the Bill to N.C.; Man loses appeal to get stolen draft."
Posted at 16:45 by Howard Bashman



"Cleveland questions ethics of Dickey on high court": The Arkansas News Bureau reports here today that "The House speaker on Friday questioned Chief Justice Betty Dickey's participation in the Arkansas Supreme Court's decision to reopen its school funding case against the state and appoint a special master."
Posted at 16:44 by Howard Bashman



"Flanders leaving Supreme Court; The most frequent dissenter on Rhode Island's highest court, Justice Robert G. Flanders Jr., 54, says he wants to pursue 'new challenges.'" The Providence Journal today contains this report.
Posted at 16:28 by Howard Bashman



"Cross-Burning Penalty Appealed; Justice Dept.'s Civil Rights Chief Argues for Stiffer Sentence": This article appears today in The Washington Post. And The Charlotte Observer today reports that "Appeals court to ask: Can cross-burning be provoked? Victim's behavior was taken into consideration in June sentencing."
Posted at 09:15 by Howard Bashman



One more reason to think twice before hitting "send": The Rocky Mountain News reports today that "Baker e-mails to girlfriend released; Court orders 101 notes revealed before recall vote." And The Denver Post reports that "Arapahoe releases 101 Baker e-mails; Messages exchanged by clerk, his girlfriend." You can access the ruling of the Colorado Court of Appeals at this link (Microsoft Word document).
Posted at 09:00 by Howard Bashman



"Ryan clemencies upheld; State Supreme Court settles dispute over Death Row commutations": The Chicago Tribune today contains this report. And The Chicago Sun-Times reports that "Ryan's clearing of Death Row legal."
Posted at 08:58 by Howard Bashman



"Appeals court upholds coin maker's conviction; Fight over use of state seal will go on, man says." This article appears today in The Anchorage Daily News. Thanks to a reader from Alaska, I first mentioned this matter here last night.
Posted at 08:56 by Howard Bashman



"Spanking decision may hit home; Supreme Court to rule Friday on whether to abolish controversial section of Criminal Code": The Toronto Star today contains this report.
Posted at 08:54 by Howard Bashman



"Judges' ruling defers remap case to high court; GOP vows quick appeal": This article appears today in The Denver Post. And The Rocky Mountain News reports that "GOP's map dealt setback; Federal judicial panel bows out of redistricting fight."

By the way, on the three-judge panel issue that I raised here last night, thanks much to those readers who responded by citing to the federal statute providing that "Upon the filing of a request for three judges, the judge to whom the request is presented shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges, at least one of whom shall be a circuit judge."
Posted at 08:48 by Howard Bashman



"Moore supporters ask Bush to rescind Pryor nomination": The Associated Press provides this report.
Posted at 08:47 by Howard Bashman



Friday, January 23, 2004
In Friday's newspapers: In The Washington Post, Charles Lane reports that "High Court Questioned On Allowing Scalia Trip." In other news, "Abortion Protest Draws Thousands; Marchers Brave Cold to Speak Out Against 1973 Roe v. Wade Decision." In somewhat related news, "Va. House Acts to Restrict Clinics Offering Abortions." An article reports that "Nearly 100 Families Are Suing Over 9/11; Federal Compensation Is Forsaken." In other news, "Janklow Sentenced to 100 Days in Jail; Ex-S.D. Politician Sought Leniency In Traffic Fatality." And in news from Colorado, "Judge Closes Part Of Bryant Hearing; Accuser's Medical History at Issue."

In The Los Angeles Times, David G. Savage reports that "Senators Inquire of Justices' Recusal Rules; A letter questions Scalia's impartiality on a case involving Cheney after the two took a trip." An article is headlined "Fuel for Senate Committee's Fire; The judiciary panel's rift widens amid a probe into GOP staff tapping the Democrats' files." In news pertaining to high-profile criminal prosecutions, "Newly Appointed Judge Is Removed in Peterson Case"; "'Remorseful' Janklow Gets 100 Days in Jail; The ex-lawmaker is fined $5,400 and must pay the county for the time he is incarcerated. The family of his victim seeks damages in a suit"; "Key Figure in Jackson Case Reports Threats; Police investigate calls to man who introduced singer to alleged victim"; and "No Major Security Changes for Bryant." An article reports that "Top court to hear police case; California Supreme Court will consider city's appeal of appellate court's ruling that overturned police profiling study." In other news, "Court OKs Health-Care Referendum; Ruling clears the way for a fall ballot measure that would undo a new law requiring employers to provide coverage to uninsured workers." Columnist Dana Parsons has a essay today entitled "Is Retrial the Right Verdict in This Case?" And letters to the editor appear under the heading "Marriage Needs No Protection From Gays."

The Boston Globe reports that "GOP downplays reading of memos; 'Fact sheet' asserts no rules, laws broken." And in other news, "Sex offender registered, but file lost."

The New York Times contains an article headlined "Words of Support From Bush at Anti-Abortion Rally." In other news, "Selecting Stewart Jury: How Much Publicity Is Too Much?" In news from Toronto, "Canadian Leader Questions Police Raid on Reporter's Home." And letters to the editor appear under the heading "Appointing a Judge."

In The Christian Science Monitor, Warren Richey reports that "Detainee cases hit court; The high court takes up cases contesting the government's treatment of 'enemy combatants.'" And an editorial is entitled "States and Disabilities."

The Washington Times contains an article headlined "Roe marches on." In other news, "Gitmo suspect denied bail." Finally for now, Deborah Simmons has an op-ed entitled "Distractions and debates."
Posted at 23:00 by Howard Bashman



Available online at law.com: Tony Mauro has an article headlined "Paper Chase" that begins, "Scholars and journalists are eagerly anticipating the scheduled March 4 release of the papers of the late Justice Harry Blackmun, likely to be an unprecedented treasure trove of inside information about the Supreme Court." An article is headlined "Taking the 5th: Pickering gets a circuit court seat, but for how long?" In other news, "California Supremes Let Judges Pick Venue." In news pertaining to the U.S. Court of Appeals for the Third Circuit, Shannon P. Duffy reports that "'Batson' Violation Leads to an Order for New Trial." And in news from New York, "Paralegal Continues to Fight Restrictions on Nonprofit Names."
Posted at 20:58 by Howard Bashman



Bad things can happen when it takes more than two years after oral argument to decide an appeal: A two-judge panel of the U.S. Court of Appeals for the Second Circuit -- consisting of one Second Circuit judge and a Southern District of New York judge sitting by designation -- issued an opinion today in a case that had been argued on January 21, 2001.

Footnote one of the opinion states:
Judge [Fred I.] Parker was not in agreement with this disposition. Deliberations have followed an unusual course. Judge Parker initially was assigned to prepare a draft opinion affirming the district court. In the course of preparing the draft, Judge Parker changed his mind and proposed to rule in favor of the defendant, overturning the injunction in most respects. Judge Parker's draft opinion, however, failed to convince the other members of the panel, who adhered to the view that the injunction should be affirmed. Judge Parker died shortly thereafter, prior to the circulation of a draft opinion affirming the injunction, from which Judge Parker presumably would have dissented.

We attach Judge Parker's draft opinion as an Appendix. We do so for two reasons: One is to expose Judge Parker's views, which would have been set forth in a dissenting opinion, but for his death; the second is because his opinion contains an exceptionally thorough, detailed and useful statement of facts, including a comprehensive description of the functioning of the domain name system. We have stated the facts more briefly, mentioning only those points necessary to the arguments discussed, inviting the reader to consult Judge Parker's very thorough fact statement for a more detailed account.
The opinion involves issues relating to domain name registration. The opinion and Judge Fred I. Parker's draft dissent are available at this link. PLEASE NOTE: By left-clicking on the link to open the PDF file in a Web browser window, you likely will generate an error message. Instead, to view the opinion, right-click, then save to your hard drive, and open the opinion from there.
Posted at 19:53 by Howard Bashman



The Alaska State Seal is not an animal, nor is it in the public domain: Thanks to a reader from Alaska who emailed to draw to my attention this ruling that the Court of Appeals of Alaska issued today. The court rejects the contention of a criminal defendant found guilty of the offense of using the Alaska State Seal without the permission of that State's Lieutenant Governor that federal copyright law preempts the offense because the seal should be regarded as in the public domain.
Posted at 19:41 by Howard Bashman



"Colo. Redistricting Map Challenge Rejected": The Associated Press provides this report. Today's ruling of the U.S. District Court for the District of Colorado can be accessed here (thanks to Law Professor Rick Hasen for the pointer).

Interestingly, this three-judge U.S. District Court panel includes two Tenth Circuit judges. In my experience, three-judge district court panels more commonly have only a single appellate judge and two district court judges. I wonder if the Tenth Circuit follows a different practice or if something particular to this case required a different panel composition.
Posted at 19:29 by Howard Bashman



Welcome "Dean Scream" seekers: Through some strange twist of fate, this Web log is currently a highly-ranked response in a Google search for the term "Dean Scream." My "Dean Scream" coverage can be accessed here, here, and here.
Posted at 19:17 by Howard Bashman



"Anticipation Building for Release of Blackmun Papers; Prospect of inside look at Court sparks interest, jockeying by news media": Tony Mauro has this report online at law.com.
Posted at 19:07 by Howard Bashman



Unanimous three-judge Second Circuit panel holds that the Prison Litigation Reform Act's fee-cap provision does not apply in a case settled via a "so-ordered" stipulation of dismissal: You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link.

Some readers may recall that in August 2003, a sharply divided en banc Seventh Circuit ruled 6-5, in an opinion you can access here, that Congress acted lawfully in limiting, by means of the Prison Litigation Reform Act, the attorneys' fees that can be recovered by prisoners. My coverage of that ruling is here.
Posted at 16:39 by Howard Bashman



"US fast-tracks 'dirty bomb' case; The US Supreme Court has promised a prompt hearing for the government's appeal against the release of 'dirty bomb' suspect Jose Padilla." BBC News provides this report. You can access today's order of the Supreme Court of the United States at this link.
Posted at 16:17 by Howard Bashman



"The Tyranny of Copyright?" This article will appear in Sunday's issue of The New York Times Magazine.
Posted at 16:00 by Howard Bashman



"Bush's Court Appointment Unwise and Insensitive; Bush's temporary appointment of Mississippi judge to appellate bench causes needless political and racial resentment": I somehow nearly missed this editorial published Tuesday in The Detroit News. The editorial mentions "appellate attorney and commentator Howard Bashman."
Posted at 14:24 by Howard Bashman



"On Law: Scalia and those ducks." Michael Kirkland, UPI Legal Affairs Correspondent, offers this report, which inaccurately states that the duck hunting occurred in Texas. In actuality, it occurred in Louisiana. Also, for what it's worth, the mention of the recusal issue first occurred here at "How Appealing" on January 9, 2004, more than a week before an article on the subject appeared in The Los Angeles Times.
Posted at 14:07 by Howard Bashman



"Confirmed Judges, Confirmed Fears: A Preliminary Look At How Appellate Judges Nominated By President Bush Are Already Threatening The Rights Of Ordinary Americans." The organization People For the American Way today issued this report. PFAW's summary of the report can be accessed here.
Posted at 13:51 by Howard Bashman



Senate Judiciary Committee to hold hearing on Wednesday, January 28, 2004 to consider nomination of Franklin S. Van Antwerpen to the U.S. Court of Appeals for the Third Circuit: See this announcement.
Posted at 12:50 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Order That Could Free Padilla Suspended"; "Microsoft Judge Says Clause Not Working"; "Ark. Court Takes Back School Funding Case"; "Janklow Sentenced to Jail for Accident"; "Drug Defendants' Jewelry Seized by Judge"; and "Piccolo Not Too Loud, Wis. Court Rules."
Posted at 12:22 by Howard Bashman



"Death-row inmate's conviction overturned; An appeals court ruled that the prosecutor systematically kept blacks off the jury." The Philadelphia Inquirer today contains this report. You can access yesterday's ruling of the U.S. Court of Appeals for the Third Circuit at this link.
Posted at 12:01 by Howard Bashman



"Court strikes down state curfew law; U.S. appeals panel: Statute violates First Amendment": This article appears today in The Indianapolis Star. I first mentioned this ruling yesterday in a post you can access here.
Posted at 12:00 by Howard Bashman



"Crosstown move means big tax break for rich lawyers; In Phila., an opportunity zone gives partners a 15-year shield from some income taxes. Critics are outraged." The Philadelphia Inquirer today contains this front page article.
Posted at 11:49 by Howard Bashman



"GOP downplays reading of memos; 'Fact sheet' asserts no rules, laws broken": This article appears today in The Boston Globe. The article follows-up on yesterday's Boston Globe article headlined "Infiltration of files seen as extensive; Senate panel's GOP staff pried on Democrats."

Update: The Committee for Justice's "fact sheet," dated yesterday, can be accessed here.
Posted at 11:25 by Howard Bashman



"Peremptory Challenges Against Judges!": Law Professor Eric Muller, at his "IsThatLegal?" blog, takes a look at this seemingly unusual California state trial court practice.
Posted at 11:19 by Howard Bashman



"Court: Gov. Could Commute Death Sentences." The Associated Press has this report on today's ruling of the Supreme Court of Illinois.
Posted at 11:13 by Howard Bashman



D.C. Circuit denies attorneys' fee request of Richard Mellon Scaife relating to Whitewater matter: You can access today's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 11:05 by Howard Bashman



"Rolling Over on Judges: The Hatch problem." Timothy P. Carney has this essay today at National Review Online.
Posted at 11:03 by Howard Bashman



Appellate practice pointer: My oral argument this morning before the U.S. Court of Appeals for the Third Circuit was most enjoyable and seemed to go quite well. The Third Circuit appointed me to serve as amicus curiae in support of affirmance of a federal district court's order that denied attorneys' fees to a pro se attorney who single-handedly defeated a separate attorneys' fee request of more than $500,000 in a shareholder derivative suit. For those readers to whom the preceding sentence seems like so much gobbledygook, my appellate brief explaining in plain English what the case is about can be accessed here.

One of the obstacles the party whom I was recruited by the court to oppose on appeal must overcome is a U.S. Supreme Court ruling from 1991 holding that pro se attorneys who prevail as plaintiff in cases brought under the federal civil rights act are not entitled to attorneys' fees even though Congress enacted a statute that entitles prevailing plaintiffs to attorneys' fees in such cases.

Arguing against me today was the attorney-father of the pro se attorney objector whose fee claim the federal district court had denied. The father seemed rather elderly, perhaps in his 80s. When one of the judges asked the father why the U.S. Supreme Court's holding that attorneys' fees are not available to pro se attorneys who prevail as parties in civil rights actions should not apply equally to pro se attorneys who create a common fund in a securities law case, the father responded that in civil rights actions, the plaintiffs tend to be very emotional people, such as women and minorities. While it was clear that the statement was not made maliciously, it drew quite a thunderous laughter from everyone in the courtroom because today's Third Circuit panel included one woman and one African-American male. Circuit Judge Michael Chertoff, the lone white male on today's panel, soon thereafter remarked that even participants in securities lawsuits can be quite emotional.
Posted at 10:38 by Howard Bashman



On the agenda: At 9:30 a.m. today, I will be presenting appellate oral argument to a three-judge panel of the U.S. Court of Appeals for the Third Circuit in a case in which that court appointed me to serve as amicus in support of a federal trial court's ruling. You can access my amicus brief here, and the notice setting forth the location of the oral argument, and the names of the three judges assigned to decide the appeal, can be viewed here. Some of this information is also set forth in this earlier post about the case. Stay tuned for more appellate-related news a bit later on this morning.
Posted at 06:30 by Howard Bashman



"Search begins for Pickering's replacement": This article appears today in The Clarion-Ledger of Mississippi. The Los Angeles Times today contains an article headlined "Fuel for Senate Committee's Fire: The judiciary panel's rift widens amid a probe into GOP staff tapping the Democrats' files." The New York Post contains an editorial entitled "The Pickering Pickle." And online at FindLaw, Law Professor Vikram David Amar has an essay entitled "The Controversy Over President's Bush Use of a 'Judicial Recess Appointment': Are Such Appointments Constitutional? Do They Hurt the Nomination Process?"
Posted at 06:25 by Howard Bashman



"Senators Inquire of Justices' Recusal Rules; A letter questions Scalia's impartiality on a case involving Cheney after the two took a trip." David G. Savage of The Los Angeles Times has this report today. And Charles Lane of The Washington Post reports that "High Court Questioned On Allowing Scalia Trip." You can access here yesterday's letter from two Democratic U.S. Senators to Chief Justice William H. Rehnquist.
Posted at 06:24 by Howard Bashman



Thursday, January 22, 2004
Elsewhere in Thursday's newspapers: The Boston Globe reports that "Infiltration of files seen as extensive; Senate panel's GOP staff pried on Democrats." And Lyle Denniston reports that "EPA's authority on power plants upheld; High court ruling aimed at reducing pollutants in air."

In The Los Angeles Times, David G. Savage reports that "Justices Give EPA Clout to Enforce Clean Air Rules; The decision, cheered by environmentalists, upholds a Clinton order that halted construction of a diesel generator at a mine in Alaska." An article reports that "L.A. Takes Stand Against Patriot Act; City Council opposes Bush's State of the Union request to extend the measure." In other local news, "Pepperdine Defends Its Minority Scholarships; Successful elsewhere, anti-affirmative action activists seek to force college to revise awards." In celebrity justice-related news, "Lawyers Quiz Candidates for Stewart Jury"; "Court Closed for Parts of Next Bryant Hearing"; "Retired Judge Is Chosen to Preside Over Peterson Trial"; and "Woman in Luster Case Sues CBS Over Video." In business news, "Court Rejects Disney's Appeal in Pooh Case" and "Record Firms Take On Invisible Enemies." An editorial is entitled "One Case Scalia Should Skip." And Marian Wright Edelman has an op-ed entitled "Old South Lingers in a Legal Lynching."

USA Today reports that "High court backs EPA in clean air case; Alaska can be forced to follow federal rules." An article reports that "Ohio set to forbid same-sex marriage; Sweeping measure also refuses benefits." A front page article is headlined "How to try a dictator? There's no instruction manual on how to prosecute Saddam Hussein. The only certainty is that anything can happen once his case lands in court." In other news, "Hearing to hinge on Bryant accuser's medical records; Lakers star seeking access to her mental health files." An article reports that "Dean scream gaining cult-like status on Web." An editorial is entitled "Respect states' role in deciding marriage law." An op-ed in response from Matt Daniels is entitled "Bush speaks for majority." And Samuel G. Freedman has an op-ed entitled "'Legacy' admissions ban highlights flaws in system."

The Washington Times reports that "Bush's commitment to marriage lauded." In news from Virginia, "Birth control battle ensues." Finally, an article is headlined "'Cultural shift' favors pro-lifers."
Posted at 23:15 by Howard Bashman



Available online at law.com: Jonathan Groner has an article headlined "Request Denied: Panel that oversees expired independent counsel law has grown stingy on fee requests." In other news, "2nd Circuit Clarifies Use of Proffer Statements at Trial; Defendants cannot argue unfair bargaining power voids waiver agreements." An article reports that "Court Secrecy at Issue in Florida Drug Case; Drug kingpin wants access to sealed habeas ruling in federal appeal of man detained after Sept. 11." And in news from Connecticut, "Minor on the Hook for Medical Debt; Parent's bankruptcy not a shield."
Posted at 23:05 by Howard Bashman



Back by popular demand -- more Dean Scream remixes: MTV.com reports that "Remixers Make Howard Dean's Scream Funky And Danceable" (via "InstaPundit"). And a faithful reader emails a link to a page entitled "Dean Goes Nuts" that contains a most impressive bunch of links.
Posted at 21:32 by Howard Bashman



"Detainee cases hit court; The high court takes up cases contesting the government's treatment of 'enemy combatants.'" Warren Richey will have this article in Friday's issue of The Christian Science Monitor.
Posted at 21:28 by Howard Bashman



Senator Patrick J. Leahy issued the following statements today: "Leahy And Lieberman Query High Court On Ethics Of Scalia Vacation With Cheney; What are the Supreme Court’s Rules on Recusal?" and "Statement Of Senator Patrick Leahy, Ranking Member, Senate Judiciary Committee, Hearing On Judicial Nominations, January 22, 2004." The second of those two statements addresses President Bush's recess appointment last Friday of Charles W. Pickering, Sr. to the U.S. Court of Appeals for the Fifth Circuit.
Posted at 20:49 by Howard Bashman



"Court reverses ruling on seminude dance club": The Salt Lake Tribune today contains this report on yesterday's en banc ruling of the U.S. Court of Appeals for the Tenth Circuit, which I noted here last night.
Posted at 20:44 by Howard Bashman



The Associated Press is reporting: Gina Holland has an article headlined "High Court Clashes Over Death Row Appeals." And in other news, "Senators Raise Questions About Scalia" and "Dean Delivers Top 10 List on Letterman."
Posted at 20:24 by Howard Bashman



"Judge is right, appeals court says: Lauderdale detective's too attractive." This article appears today in The South Florida Sun-Sentinel. You can access yesterday's ruling of Florida's Fourth District Court of Appeal (which I earlier linked to here) at this link.
Posted at 20:19 by Howard Bashman



Thou shalt not charge removal fee? The Winston-Salem Journal reports today that "Official isn't asked to pay; City says it will take care of cost to remove Robinson's monument." According to the article, it cost the City of Winston-Salem only $530 to cart away the one-ton Ten Commandments monument, or $53 per commandment.
Posted at 17:06 by Howard Bashman



Curfew, part two: Over the recorded dissent of five judges, today the U.S. Court of Appeals for the Second Circuit denied a petition for rehearing en banc of its earlier decision, by a divided three-judge panel (majority opinion here; dissenting opinion here), invalidating a curfew on minors in the Town of Vernon, Connecticut. You can access today's order denying rehearing en banc, and the dissent therefrom, at this link.
Posted at 17:00 by Howard Bashman



Duck, duck, recuse: The Scripps Howard News Service today reports that "Number of hunters down, but more rich people bag animals." Funny, but who would expect the article to mention the Vice President and a certain U.S. Supreme Court Justice?
Posted at 16:45 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Rallies Mark Anniversary of Roe Vs. Wade"; "Prosecutors Remove Judge in Peterson Case"; "Ark. Court Hears School Funding Arguments"; "Court Rules Entrapment in 'Party' Bust" (plus access here yesterday's ruling of Florida's Fourth District Court of Appeal); "States' Database a Trove of Personal Info"; "Janklow to Be Sentenced in S.D. Accident"; "King Posters Rile Some at Neb. School"; "Second Trial Begins in Police Video Case"; and "Minnesotan Charged With al-Qaida Support."
Posted at 16:01 by Howard Bashman



Not a good day for the administrative state in the Seventh Circuit: Today the U.S. Court of appeals for the Seventh Circuit issued three opinions by Circuit Judge Richard A. Posner. In the first case, Judge Posner reverses the disability benefits determination of the Social Security Administration. In the second case, Judge Posner vacates the denial of asylum to a Russian refugee who claims to be Jewish. And in the third case, Judge Posner vacates the denial of asylum to a refugee from Ethiopia.
Posted at 16:00 by Howard Bashman



"Change Horses In Midstream: In today's specialized legal market, hiring an appellate lawyer to handle your appeal often makes the best sense." Attorney David Walk has this essay in Corporate Counsel.
Posted at 15:37 by Howard Bashman



Three-judge Seventh Circuit panel enjoins enforcement of Indiana's juvenile curfew law: You can access today's ruling of the U.S. Court of Appeals for the Seventh Circuit, holding that "the new curfew leaves minors on their way to or from protected First Amendment activity vulnerable to arrest and thus creates a chill that unconstitutionally imposes on their First Amendment rights," at this link.
Posted at 15:30 by Howard Bashman



The St. Louis Post-Dispatch is reporting: Today's newspaper contains articles headlined "High court will weigh legality of new gun law"; "412-pound trucker gets job back, apology"; and "Honk for ... anything, and you break the law."

In the gun law case, you can access the text of the law via this link and the appellate briefs via this link.
Posted at 14:42 by Howard Bashman



"Reexamining the Market for Judicial Clerks and other Assortative Matching Markets": This newly released paper by Law Professor George L. Priest can be accessed online here (direct link to 100-page PDF file). (Via "Legal Theory Blog.")
Posted at 14:40 by Howard Bashman



Fool for a client: The saying goes that someone who represents himself in court, without a lawyer, has a fool for a client. Today's edition of The Dayton Daily News contains an article headlined "Drug boss implicates himself in slaying" that begins, "Acting as his own attorney, Dayton drug kingpin Keith W. DeWitt Sr. presented evidence that convinced U.S. District Judge Walter H. Rice that he murdered Ike Washington in 1991 -- a murder of which DeWitt was acquitted earlier by a Montgomery County jury."
Posted at 14:04 by Howard Bashman



"Lawsuit seeks to restore higher fees on vehicles; UC students, civil rights advocates want Schwarzenegger to undo education cuts": Bob Egelko and Lynda Gledhill have this article today in The San Francisco Chronicle. I first mentioned this lawsuit yesterday evening, in a post that contains links to the court filings.
Posted at 11:45 by Howard Bashman



"State Supreme Court hears athlete's appeal": The Atlanta Journal-Constitution today contains this report.
Posted at 11:40 by Howard Bashman



In other news pertaining to the U.S. Supreme Court: Stephen Henderson of Knight Ridder Newspapers reports that "Indian sovereignty at issue in case before Supreme Court." And The Financial Times offers an article headlined "Ruling strengthens EPA over clean air."
Posted at 11:20 by Howard Bashman



"One Case Scalia Should Skip": This editorial appears today in The Los Angeles Times.
Posted at 11:19 by Howard Bashman



In hindsight: Today's Senate Judiciary Committee hearing just concluded, and although I didn't hear every last work spoken at the hearing, I didn't see any discussion of President Bush's recess appointment of Charles W. Pickering, Sr. to the Fifth Circuit.
Posted at 11:14 by Howard Bashman



Gay marriage and related issues in the news: The Plain Dealer of Cleveland reports today that "Ban on gay marriages clears Ohio Senate." The Cincinnati Enquirer reports that "Ohio Senate passes gay-marriage ban." The Dayton Daily News reports that "Ohio Senate OKs bill that bars gay marriage; House must concur on changes before it goes to Taft." And The Toledo Blade reports that "Senate votes to ban gay marriage; Bill expected to go to Taft next week."

The Atlanta Journal-Constitution reports that "Ga.'s gay marriage ban may tighten." And The Pittsburgh Post-Gazette reports that "ACLU to appeal domestic partner benefits."

Finally, at National Review Online, Law Professor Gerard V. Bradley has an essay entitled "Getting to the Altar on Time: The president and a marriage amendment."
Posted at 11:00 by Howard Bashman



Today is the thirty-first anniversary of the U.S. Supreme Court's ruling recognizing a federal constitutional right to abortion: The Court's still very controversial ruling in Roe v. Wade can be accessed here.
Posted at 10:01 by Howard Bashman



On the agenda: In approximately fifteen minutes from now, the Senate Judiciary Committee is scheduled to hold its first confirmation hearing for judicial nominees of 2004 and the first hearing since President Bush used a recess appointment to place Charles W. Pickering, Sr. on the U.S. Court of Appeals for the Fifth Circuit. The only appellate court nominee on today's agenda is Eighth Circuit nominee Raymond W. Gruender. While his nomination is not expected to be controversial, it will be interesting to see what the Senators on the committee have to say about the Pickering recess appointment. The hearing is to be broadcast live online at this link beginning at 10 a.m.

In news coverage of the Pickering recess appointment and other matters relating to the Judiciary Committee, FOXNews.com reports that "Senate Judiciary Dems to Make Stink on Pickering." The Las Vegas Review-Journal today contains an editorial entitled "Recess pick." WTOK-TV reports that "Successor to Pickering Eyed." The Associated Press reports that "Specter draws fire on Pickering appointment." And The Boston Globe today contains an article headlined "Infiltration of files seen as extensive; Senate panel's GOP staff pried on Democrats."
Posted at 09:45 by Howard Bashman



In news from Alaska: The Fairbanks Daily News-Miner reports that "Ruling favors EPA over states." And The Anchorage Daily News reports that "Justices rule against state, mine; Decision means feds can demand tighter clear-air standards than state can."
Posted at 09:29 by Howard Bashman



In Thursday's newspapers: In The New York Times, Linda Greenhouse reports that "Court Upholds E.P.A. Role in Alaska Case." Neil A. Lewis reports that "Lawyer Says Cuba Detainees Face Unfair System." In other news, "Student Sex Case in Georgia Stirs Claims of Old South Justice." An article reports that "Lawmakers Not Rushing to Take Up Terrorism Act." In somewhat related news, "Easing of Internet Regulations Challenges Surveillance Efforts." In other news, "Music Industry Returns to Court, Altering Tactics on File Sharing." In local news, "In Stewart Jury Pool, a Sense of Familiarity" and "U.S. Questions the Hiring of Lawyer in Ferry Inquiry." An article reports that "Ex-C.I.A. Aides Ask Inquiry by Congress Over Leak of Name." In news relating to the State of the Union address, "Conservative Groups Differ on Bush Words on Marriage" and "Bush's Talk on Values, and the Eye He Keeps on November." An article reports that "Report Finds Risks in Internet Voting by Americans Overseas." And in international news, "Canadian Mounties Seize Reporter's Files in Terrorist Case" and "Tycoon Finds Russian Jail Falls Beneath His Standards."

In The Washington Post, Charles Lane reports that "Justices Decide EPA Can Overrule States; Bar to Zinc Mine Expansion Is Upheld." An article reports that "Lawyer Criticizes Rules for Tribunals; Trials Won't Be Fair, Military Attorney Says." In election-related news, "Democrats Won't Get Justice Memo; Texans Say Document Could Embarrass GOP" and "Pentagon's Online Voting Program Deemed Too Risky." In business news, "A Reprise Of Lawsuits Over Piracy; Music Industry Lacks Defendants' Names" and "Northwest Airlines Faces Privacy Suits." In news involving Martha Stewart, "Judge Sorts Through Jurors in Stewart Trial; 2 Days of Closed Sessions Aimed at Finding 50 to Choose From Next Week" and "Martha's Moneyed Bag Carries Too Much Baggage." In 9/11-related news, "Verdict Postponed in German 9/11 Case; Prosecution Claims Eleventh Hour Evidence Against Moroccan Defendant"; "9/11 Money Funds a Dream; Man Plans Tribute to Wife Lost in Pentagon"; "Canadian Held for Alleged Al Qaeda Ties; U.S. Accuses Man of Plotting To Provide Aid to Terrorists"; and "Probe of Intercepted Messages Focuses on Shelby; Justice Department Investigating Leak of Classified NSA Material Regarding Sept. 11 Attacks." In other news, "The Feathers That Caused a Flap; Case Against Smithsonian Secretary Was Three Years in the Making." An article reports that "Libel Judgment Shakes Indonesian Press; Rise in Lawsuits Seen as Threat to Freedoms Gained Since End of Dictatorship." And Robert B. Reich has an op-ed entitled "Marriage Aid That Misses the Point."

The Christian Science Monitor contains an article headlined "New doubts over the old school name; Across the South, schools named for Confederate heroes are under challenge." And Amitai Etzioni has an op-ed entitled "Law and order and the wild, wild Web."

Finally, The Wall Street Journal contains an editorial entitled "Patriot Acting Out: The phony case against an antiterror law."
Posted at 06:33 by Howard Bashman



Wednesday, January 21, 2004
Elsewhere in Wednesday's newspapers: The Boston Globe reports that "President targets same-sex marriage." In other news, "Profiling study cites dozens of locales." An article reports that "Town uses website list to shame scofflaws." And in other news, "Yell in Iowa may haunt Dean camp."

The Los Angeles Times reports that "Bush Hints at Amendment to Block Same-Sex Marriages." An article reports that "Peterson Trial Is Moved to San Mateo County; Judge reaffirms his opinion that media coverage of the murder case has tainted the jury pool in Modesto." In other celebrity trial news, "Stewart Maintains Innocence at Trial; The defendants repeat pleas as the case begins" and "Prosecutors Seek to Bar Blame Shift by Blake." In local news, "FBI Appoints New L.A. Chief; Richard T. Garcia, 50, becomes the first Latino to head the bureau's Southland division and one of two to hold the title assistant director." In other news from California, "Guards Tell of Retaliation for Informing; Whistle-blowers testify before Senate panel on how their reports of misconduct at state prisons are received" and "Judge to Rule on Request From Pellicano on Friday; The celebrity private investigator is seeking to withdraw his guilty plea to one weapons charge." A front page article is headlined "A Family Deposed by Force: The Sherburnes were living as survivalists and selling military surplus when the feds moved in. They were lawbreakers, victims -- or both." And Merrill Markoe has an op-ed entitled "And They Lived Gaily Ever After."

The Washington Times reports that "Sniper trials in county hands."

And in USA Today, Tony Mauro has an op-ed entitled "Judges wrongly close court to protect jurors."
Posted at 23:47 by Howard Bashman



Available online from law.com: Jonathan Ringel reports that "Georgia Justices Ponder 10-Year Sentence in Teen Sex Case; High court frets over harsh punishments, but fears opening floodgate to challenges." In other news, "11th Circuit Takes Swing at Real-Time Golf Score Dispute." An article reports that "2nd Circuit Clarifies Standard of Pleading for Securities Fraud." The National Law Journal offers an article headlined "A Tussle Over Ohio Court Records; A judge who heads a privacy panel has her divorce file sealed." And in news from California, "Roger Rabbit Rumble Revived; Claim against Disney no Mickey Mouse suit."
Posted at 23:41 by Howard Bashman



The Atlanta Journal-Constitution is reporting: Tomorrow's newspaper will contain articles headlined "Fulton asks court to uphold Al-Amin conviction; Prosecutors also want Carr murder charges reinstated" and "Golf club says city ordinance is unenforceable." Also, The Associated Press reports that "Court told that athlete's sentence 'cruel and unusual.'"
Posted at 23:24 by Howard Bashman



Overflowing with whimsy: I noted here yesterday that I might be mentioned in the current issue of The National Law Journal. As it turns out, I'm not just mentioned, but my photo is prominently featured right at the top of page three of the publication. I was flattered to be among those asked to offer law-related predictions for 2004. The request advised that whimsical responses would be especially well received. And that explains why my prediction is overflowing with whimsy, in case anyone is wondering.
Posted at 22:24 by Howard Bashman



The U.S. Court of Appeals for the Tenth Circuit issues an en banc nude dancing opinion: Sometimes nude dancing cases are so much fun on appeal that the whole court feels the need to get involved. Today the en banc Tenth Circuit issued a decision upholding, by a 12-1 vote, Ogden, Utah's zoning regulations that prohibited a nude dancing establishment from opening for business. In so ruling, the en banc court came to an opposite conclusion from the one a divided three-judge panel reached in a decision issued one year ago tomorrow. My earlier coverage of the three-judge panel's ruling (with a nude dancing opinion from the Seventh Circuit thrown in for good measure) can be accessed here.
Posted at 20:50 by Howard Bashman



"Web Samples Dean Scream": Tonight's broadcast of NPR's "All Things Considered" contained this report (Real Player required) on the so-called "I have a scream" speech. Earlier today, a reader emailed links to some dance mixes of the scream, which you can listen to here (mp3 file, via Lileks); here (mp3 file, via "Barlow Farms"); and here (mp3 file, via "a preponderance of the evidence").
Posted at 19:40 by Howard Bashman



"Court Backs EPA on Anti-Pollution Rules": Anne Gearan of The AP offers this coverage.
Posted at 19:27 by Howard Bashman



"Ohio Senate Approves Gay-Marriage Ban": The Associated Press provides this report. Reuters, meanwhile, reports that "Ohio Passes Ban on Benefits for Unmarried." Chris Geidner attended yesterday's committee hearing on the legislation and posted on his blog about the hearing here and here.
Posted at 19:23 by Howard Bashman



"Wise Council: The Supreme Court ponders the usefulness of lawyers." Slate has recently posted online this Supreme Court Dispatch from Dahlia Lithwick. Here's a snippet from Dahlia's essay: "Rehnquist asks whether other courts have found this to be a matter of federal constitutional law, and when Wilson [the lawyer representing a criminal defendant against the State of Iowa] says the 9th Circuit did, the chief shoots back, 'Any other circuit?' so fast, you'd think Wilson had cited to some Wisconsin traffic court."
Posted at 19:06 by Howard Bashman



"Claiborne leaves legacy of independence": This article appears today in The Las Vegas Sun. And The Las Vegas Review-Journal contains an editorial entitled "Harry Claiborne, at 86."
Posted at 17:39 by Howard Bashman



"Diaz: 3 cases cited fail to prove anything." The Biloxi Sun Herald reports here today that "Defense lawyers say federal bribery and fraud charges against Mississippi Supreme Court Justice Oliver Diaz Jr. and his former wife, Jennifer Diaz, should be dismissed because prosecutors failed to show that the judge did anything in exchange for financial favors."
Posted at 17:36 by Howard Bashman



"Students, Civil Rights Groups Ask California Supreme Court to Halt Governor Schwarzenegger's 2003-04 Budget Cuts; Cuts Violate State Constitution, Jeopardize Education, Suit Charges": The Equal Justice Society issued this press release today. You can access here the petition for writ of mandate and supporting brief, while the appendix in support thereof is available at this link.
Posted at 17:31 by Howard Bashman



"Military Lawyer Slams U.S. Terrorism Tribunals": Reuters reports here that "The U.S. Marine Corps lawyer assigned to defend an Australian terror suspect being held at the Guantanamo naval base in Cuba Wednesday criticized the military tribunal process and said it will not allow a fair trial." The Associated Press has an article headlined "Lawyer: Aussie at Gitmo Doing Poorly." And in coverage from Australia, "Hicks trial won't be fair: US lawyer"; "Govt rejects sending Hicks home"; and "Hicks dad surprised by lawyer."
Posted at 17:00 by Howard Bashman



"Duck-blind justice": This editorial appears today in The St. Petersburg Times. The Arizona Daily Star today contains an editorial entitled "Scalia's conflict." The Daily Astorian of Oregon contains an editorial entitled "This one fails the sniff test (easily); Scalia’s overt links with Cheney cloud any thoughts of fairness." And The Los Angeles Times contains letters to the editor that appear under the heading "Cheney's War and Scalia's Conflict."
Posted at 16:08 by Howard Bashman



"Internet privacy limit is upheld; In Whitehall case, state high court says Web chat is not like phones." This article appears today in The Morning Call of Allentown, Pa. You can access last month's affirmance from the Supreme Court of Pennsylvania at this link, and a concurring statement can be accessed here.
Posted at 16:05 by Howard Bashman



Death penalty news: The Chicago Tribune today contains an article headlined "Pain of execution debated; Drug used on humans deemed unfit for dogs."

BBC News, meanwhile, reports that "Ban urged for child executions; Amnesty International has launched a two-year campaign to ban the execution of child offenders worldwide." You can access here the Amnesty International news release, which provides links to additional material.
Posted at 15:54 by Howard Bashman



"Supreme Court hears arguments over tribal prosecutions": The Associated Press provides this report on today's oral argument in United States v. Lara.
Posted at 14:59 by Howard Bashman



"Pot case heads to state Supreme Court": This article appears today in The Fairbanks Daily News-Miner.
Posted at 14:43 by Howard Bashman



"Nugent, Osbourne File Class Action After Dean Scream": "ScrappleFace" provides this report. Elsewhere, The San Francisco Chronicle reports that "'Iowa yell' stirring doubts about Dean; Battle cry to troops strikes some critics as over the top."
Posted at 14:35 by Howard Bashman



"Veteran East Bay judge tapped for Peterson case": Howard Mintz of The San Jose Mercury News reports here that "A veteran Contra Costa County judge with experience in death penalty cases was selected today to handle the upcoming Scott Peterson murder trial, a day after it was shifted from Modesto to San Mateo County because of an unrelenting crush of pretrial publicity."
Posted at 14:24 by Howard Bashman



"Web log the first devoted to Franchise Law": The publication Franchise Times contains this article (which even happens to mention "How Appealing") in its January 2004 issue. The "Franchise Law" blog, operated by lawyers at Wiggin & Dana LLP, can be accessed here.
Posted at 13:52 by Howard Bashman



"Prez Calls Dems Patriot Games Bluff; Taking on demagoguery." Barbara Comstock, former U.S. Department of Justice spokeswoman, today has this essay at National Review Online.
Posted at 13:19 by Howard Bashman



"Supreme Court Rules EPA Can Overrule States in Clean Air Case": The Associated Press provides this report. And James Vicini of Reuters reports that "Top Court Rules EPA May Overrule States."
Posted at 13:02 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Ohio Close to Passing Gay Marriage Ban"; "Gov. Bush Seeks Evidence in Schiavo Case"; "Survey: Mass. Cops Ticket Minorities More"; "Ex-Rep. Janklow Faces Wrongful-Death Suit"; "'Mr. Bill' Tapped to Help Save La. Swamps"; and "Payment Was in the Mail, for Five Years."
Posted at 12:15 by Howard Bashman



Additional background on the Ninth Circuit rulings that the U.S. Supreme Court affirmed today: To follow up on this earlier post announcing today's lone U.S. Supreme Court opinion, you can access the Ninth Circuit's order regarding appellate jurisdiction at this link, and the Ninth Circuit's later ruling on the merits at this link. Both the order and the opinion on the merits were issued by the same unanimous three-judge panel consisting of Circuit Judges Stephen Reinhardt, Kim McLane Wardlaw, and Ronald M. Gould. Judge Wardlaw was the author of the opinion on the merits.
Posted at 11:20 by Howard Bashman



This morning's Ten Commandments news: The Winston-Salem Journal reports that "Controversial marker removed; Whether Robinson will get bill for work is unclear." In other coverage, The Associated Press reports that "Commandments plaque gone; The granite marker is carted away for safety reasons, Winston-Salem officials say." And The Chronicle reports that "Commandments statue center of controversy."

Elsewhere, The Idaho Statesman reports that "Council votes to move monument; Commandments will be returned to civic group." The Washington Times reports from Annapolis that "Moore urges fight for God." And The Athens Banner-Herald contains an article headlined "Barrow reveals costs of case; Ten Commandments battle."
Posted at 11:10 by Howard Bashman



"Lingle makes court selection": The Honolulu Advertiser reports here today that "The man who has coordinated appeals cases for federal attorneys in Hawai'i during the past decade has been tapped to be the newest member of the state Intermediate Court of Appeals."
Posted at 11:04 by Howard Bashman



Today's lone U.S. Supreme Court opinion: Today's big news (such as it is) is that the Supreme Court of the United States has issued a decision affirming the U.S. Court of Appeals for the Ninth Circuit, albeit by a vote of 5-4.

Justice Ruth Bader Ginsburg delivered the opinion in Alaska Dept. of Environmental Conservation v. EPA, No. 02-658. You can access the syllabus here, Justice Ginsburg's majority opinion here (in which Justices John Paul Stevens, Sandra Day O'Connor, David H. Souter, and Stephen G. Breyer joined), and Justice Anthony M. Kennedy's dissenting opinion here (in which the Chief Justice, and Justices Antonin Scalia and Clarence Thomas joined). Finally, you can access the transcript of oral argument in the case at this link.
Posted at 10:00 by Howard Bashman



In action: This Friday at 9:30 a.m., I will be presenting oral argument in Philadelphia to a three-judge panel of the U.S. Court of Appeals for the Third Circuit in a case in which the court appointed me to serve as amicus in support of affirmance of the order of then-Chief Judge D. Brooks Smith of the U.S. District Court for the Western District of Pennsylvania denying a request for attorneys' fees made by a pro se lawyer in a shareholder derivative suit.

The precise question presented is "Did the district court err in concluding that a pro se lawyer is not entitled to recover attorneys' fees under the common fund doctrine in a shareholder derivative suit?"

You can access my amicus brief online at this link, and the Third Circuit's oral argument notice can be accessed here. The appeal will be argued before Circuit Judges Dolores K. Sloviter, Theodore A. McKee, and Michael Chertoff.
Posted at 09:50 by Howard Bashman



The incredible, edible cod: The Associated Press is reporting that "Town, Pork Board Clash Over Meat Slogan." The article begins, "The National Pork Board says there's something fishy about this city's use of the slogan 'The Other White Meat.' Gloucester, the nation's oldest fishing port, displayed the catch phrase on its Web site under a picture of a cod fish." And Boston's NewsCenter 5 offers a report headlined "Cod Slogan Too Fishy For Pork Board; Pork Board Threatens Lawsuit Over 'Other White Meat' Slogan."
Posted at 09:40 by Howard Bashman



"Yarris' attorneys: Death row ordeal shows pitfalls of capital punishment; Freedom after new DNA findings brings a 'sensory overload.'" This article appears today in The Philadelphia Inquirer. The Delaware County Times today contains an article headlined "Lawyer: Yarris deserves compensation for 22 years in jail." And David B. Caruso of The Associated Press reports that "Free at last, former death row inmate mulls future."
Posted at 09:33 by Howard Bashman



On the agenda: At 10 a.m. today, the Supreme Court of the United States is expected to announce one or more opinions in argued cases.
Posted at 09:30 by Howard Bashman



"Pickering appointed to U.S. Appeals seat": This article appears today in The Daily Mississippian. And The Washington Times today contains an editorial entitled "Smearing Judge Pickering."
Posted at 07:10 by Howard Bashman



"Bush nominates Allen again for 4th Circuit appeals court; President's action is sure to re-ignite clash with Md. senators over vacancy": The Baltimore Sun contains this article today. And The Richmond Times-Dispatch reports that "President nominates Allen again."
Posted at 07:07 by Howard Bashman



"Ex-federal judge Claiborne kills self; Colleagues remember masterful litigator undeterred by indictment and impeachment": This article appears today in The Las Vegas Review-Journal.
Posted at 07:05 by Howard Bashman



In Wednesday's newspapers: The New York Times reports that "Ban on Gay Marriages Leads List of Proposals." In somewhat related news, "In Gay-Marriage Ruling, Boom for Provincetown." An article reports that "Appeals Court Backs Ban on Masks at Public Rallies." In other news, "With Smiles and Kisses, Stewart Trial Commences." An article reports that "Judge Chooses San Mateo County as Site of Murder Trial." In international news, "Brazil Adopts Strict Gun Controls to Try to Curb Murders" and "Here's News for Cowboys: Bandanna Can Be Religious." In local news, "Lawyer Accused of Fixing Home Auction Prices" and "Democrats Criticize Plan to Use Gambling Revenue to Meet Court Mandate for Better Schools." And in news from Arizona, "Former Bishop of Phoenix Goes on Trial in Fatal Hit and Run."

The Washington Post reports that "Stewart Trial Opens With a Closed Session; Lawyers, Judge Screen Jury Panel in Private." A front page article reports that "U.S. Charges Smithsonian Secretary; Small's Art Collection Contains Illegal Feathers." In local news, "Va. Bill Aims to Limit Liability Suits; Republicans Want to Exempt Gun Manufacturers, Tobacco Companies" and "Lawmakers Seek to Oust Fairfax Judge." An article reports that "N.Y. Crime Family Members Indicted; U.S. Sweep Arrests Leaders of Bonannos." In business news, "Top Airline Executives To Discuss Privacy Policy" and "Two Audit Firms Charged With Aiding Clients' Fraud; SEC Official Says Similar Actions in Works." D. Mark Jackson has an op-ed entitled "Detaining the 'Enemy,' Diluting the Law." And a letter to the editor appears under the heading "Tired of Filibusters."

Lastly, The Christian Science Monitor contains an article headlined "Chicago's alternative to locking up youth."
Posted at 06:30 by Howard Bashman



"Judge Ginsberg isn't mentally well, should retire, board says": This article will appear in Wednesday's issue of The Minneapolis Star Tribune.
Posted at 00:05 by Howard Bashman



Tuesday, January 20, 2004
"Impeached Nevada judge kills himself": The Associated Press reports here that "Harry Claiborne, the flamboyant federal judge convicted of filing false tax returns and impeached by the US Senate, committed suicide last night. He was 86." In other coverage, KLAS-TV reports that "Giant in Legal Community Takes His Life." And The Las Vegas Sun reports that "Former U.S. Judge Claiborne dies at 86."
Posted at 23:55 by Howard Bashman



Reuters is reporting: Available online are articles headlined "US Court to Review Right to Lawyer in Plea Appeals" and "Bush stops short on Constitution gay marriage ban."
Posted at 23:49 by Howard Bashman



Elsewhere in Tuesday's newspapers: The Boston Globe reports that "Resistance to Patriot Act gaining ground; Foes organizing in communities." And an article is headlined "'Hope for the future'; With the right to marry in the balance, gay teens dream of a wedding day."

The Los Angeles Times reports that "Western State Law School Sues Bar Assn." An article reports that "Stewart Case Poses Challenges for All Parties as Trial Begins Today." In other news, "Guard Challenges Code of Silence; He says his efforts to combat brutality against prisoners hit a 'Green Wall.' He is set to testify before a panel today." From the world of fashion, "In courtroom, Jackson rides fashion's crest; Singer brings his own badge and adds a Serbian piece to his military-motif mix." And an editorial is entitled "Unshackle the Inspectors."

Lastly, USA Today contains an article headlined "FBI probes possibility of other 9/11 operatives; One focus is Saudi denied entry in Orlando."
Posted at 23:20 by Howard Bashman



"Pickering's recess appointment": This essay by Cal Thomas posted online at Town Hall contains a whopper of an error. See my earlier post here for accurate information.
Posted at 23:00 by Howard Bashman



Available online at law.com: An article reports that "Military Lawyers Urge Role for High Court; Amicus brief by defenders of accused terrorists argues justices should assert jurisdiction over tribunals." In other news, "2nd Circuit Upholds N.Y. Statute Barring Masks." And from California comes word that "State Pot Prosecution Now a Federal Case."
Posted at 22:56 by Howard Bashman



"Arrest Startles Saleswomen of Sex Toys": This article appears in today's issue of The New York Times.
Posted at 20:58 by Howard Bashman



"Diazes ask judge to dismiss fraud, bribery charges": The Associated Press reports here that "Attorneys for state Supreme Court Justice Oliver Diaz Jr. and his ex-wife Jennifer have asked a federal judge to dismiss fraud and bribery charges against them."
Posted at 20:00 by Howard Bashman



"Costello pushes hearings on Cheney": The Belleville News-Democrat contains this report today.
Posted at 19:58 by Howard Bashman



"Governor greets judges in S.F.; Schwarzenegger expresses admiration for state's current chief justice, Ronald George": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 19:57 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "High Court Tackles Church-State Tax Fight." An item headlined "Scotus in Brief" provides additional coverage of today at the U.S. Supreme Court. And in other news, "Ill. Gov. OKs Last Death-Penalty Reforms"; "Ga. Teen's Jailing for Sex Draws Protests"; "Judge Orders Peterson Murder Trial Moved"; "Woman to Stand Trial in Body-Freezer Case"; "Calif. Inmates Restricted in Blade Theft"; and "Head of Smithsonian Admits Breaking Law."
Posted at 18:57 by Howard Bashman



"The judge wars: Interim appointment of Pickering is symptomatic." This editorial appears today in The Pittsburgh Post-Gazette.
Posted at 17:40 by Howard Bashman



"Teen fights to keep MikeRoweSoft.com; Microsoft concedes taking case 'a little too seriously'": CNN.com provides this report. And The Associated Press reports that "Mikerowesoft.com goes offline -- but not because of legal threats."
Posted at 17:32 by Howard Bashman



"Supreme Court Considering Loan Deal Case": Anne Gearan of The AP provides this coverage of the cases in which the U.S. Supreme Court granted review today.
Posted at 16:33 by Howard Bashman



"N.C. City Removes Commandments Monument": The Associated Press provides this report.
Posted at 16:30 by Howard Bashman



"Many in state join Federalists": The Federalist Society is growing in Alabama, The Montgomery Advertiser reports here today. (Thanks to "Southern Appeal" for the pointer.)
Posted at 16:15 by Howard Bashman



Asylum only for "religious zealots"? Today Seventh Circuit Judge Richard A. Posner, on behalf of a unanimous three-judge panel, once again reversed an immigration judge's ruling in an asylum case. Borrowing a page from First Circuit Judge Bruce M. Selya's unabridged dictionary, Judge Posner's opinion also uses the word "acephalous."
Posted at 16:06 by Howard Bashman



Access online today's federal judicial nominations: Today's nominations can be accessed here. Remember that Democrats in the U.S. Senate refused unanimous consent to carry over the nomination of Claude A. Allen to serve on the U.S. Court of Appeals for the Fourth Circuit, necessitating today's renomination.
Posted at 15:44 by Howard Bashman



In appeal involving the Ku Klux Klan, Second Circuit reverses federal trial court's ruling invalidating New York’s anti-mask statute: You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 14:47 by Howard Bashman



Where would we be without sticklers for detail? It comes as no surprise that many readers of this Web log are sticklers for detail. Perhaps this blog's author, on occasion, might also be deserving of that description.

A couple of readers have emailed, in response to my continuing coverage of the judicial recess appointment issue, to note that I haven't mentioned that President Clinton used a recess appointment to make Sarah Wilson a judge on the U.S. Court of Federal Claims, and that the U.S. Senate never confirmed Judge Wilson's nomination.

At the risk of being perceived as an "Article III snob," the reason I have not mentioned the Court of Federal Claims is that it is an Article I court. Its judges, when confirmed by the U.S. Senate, are entitled to serve a fifteen year term.

So I've just mentioned it, and now you know why I'm not mentioning it.
Posted at 14:03 by Howard Bashman



Today's decisions of note from the U.S. Court of Appeals for the Ninth Circuit: For starters, the court today denied the petition for rehearing en banc filed in Martinez v. Chavez, a case decided in late July 2003 on remand from the U.S. Supreme Court. You can access my earlier coverage of this matter here and here.

Second, today's award for shortest dissenting opinion goes to Circuit Judge Pamela Ann Rymer, who writes, in full, "I would affirm."

Finally, even if Judge Rymer hadn't written today's shortest Ninth Circuit dissenting opinion, she'd still have a difficult time winning recognition for the day's most interesting dissent. That award is hereby bestowed upon Circuit Judge Alex Kozinski for this dissenting opinion in an asylum case.
Posted at 13:30 by Howard Bashman



"Pickering gets his first cases": This article appears today in The Hattiesburg American. The end of the article suggests that Judge Pickering plans to spend his year on the Fifth Circuit working from home when he is not hearing appellate oral arguments.

In commentary, The San Diego Union-Tribune contains an editorial entitled "Court battle; Bush resorts to recess appointment." And The Capital Times of Madison, Wisconsin contains an editorial entitled "Bush's ugly cynicism."
Posted at 13:00 by Howard Bashman



Federal district judge in Los Angeles declares part of Feeney Amendment unconstitutional? According to the Brennan Center for Justice at NYU School of Law, The Wall Street Journal last week reported that "U.S. District Judge Dickran Tevrizian has declared unconstitutional parts of the Feeney Amendment, which 'mandates government scrutiny of judges and their sentencing practices.'"

I have seen no other press coverage of this potentially significant ruling, and the text of the ruling does not appear to be available online via the Web site of the U.S. District Court for the Central District of California. If anyone has a copy of this ruling that I could post online, please don't hesitate to email it to me.

Update: Thanks much to the reader who emailed to advise that a copy of the opinion is available online here (14-page scanned PDF document).
Posted at 12:21 by Howard Bashman



Man with shrimp in pants: The Associated Press reports from Bethlehem, Pa. that "Man Admits Stuffing Shrimp Into Pants." And The Morning Call of Allentown reports that "Bethlehem Twp. man pleads guilty to theft; He placed frozen bags of shrimp in his pants and fled grocery store."
Posted at 12:05 by Howard Bashman



"High Court Rejects Kenyans' Appeal in Embassy Attack": Reuters provides this report. And The Associated Press reports that "Court Won't Reinstate Kenya Bombing Suit."
Posted at 12:00 by Howard Bashman



"Attorneys make case for judge's removal; Dispute Wolin's use of asbestos advisers": Saturday's edition of The Star-Ledger of Newark, N.J. contained an article that begins, "Nearly four dozen lawyers crowded into federal District Court Judge Alfred Wolin's courtroom in Newark yesterday to argue whether he should remove himself from a multibillion-dollar bankruptcy case. Wolin did not announce his decision; however, a ruling is expected soon because the U.S. 3rd Circuit Court of Appeals has ordered that he decide the matter by Jan. 31."
Posted at 11:40 by Howard Bashman



Recess appointment trivia, part two: Because many expect Fifth Circuit recess appointee Charles W. Pickering, Sr. to become the next recess appointee to a federal appellate court to fail to receive Senate confirmation before the recess appointment expires, yesterday I had a post identifying the last recess appointee to a federal appellate court who failed to receive Senate confirmation.

This morning, Law Professor Larry T. Garvin of the Moritz College of Law, The Ohio State University, emails with even more information about Wallace McCamant, who served on the U.S. Court of Appeals for the Ninth Circuit from May 25, 1925 through May 2, 1926 following a recess appointment by President Calvin Coolidge:
Just a little color commentary on the last failed recess appointment to the federal appellate court. Judge McCamant's appointment by President Coolidge could be called a sort of payback. Originally Coolidge was not slated to get the vice-presidential nomination in 1920. Republican power brokers thought it would be prudent to balance Warren Harding, a fairly staunch conservative, with a progressive vice-presidential candidate. They therefore offered the VP slot to California's Senator Hiram Johnson, who contemptuously turned it down, much to his later regret. The next choice was Wisconsin Senator Irvine Lenroot. He was nominated, but the delegates were not horribly enthusiastic. Coolidge was popular thanks to his handling of the Boston police strike of 1920, and a judge from Oregon, Wallace McCamant, led a chant of "Coolidge! Coolidge!" from the floor. McCamant then nominated Coolidge, who ran away with the vote. Ah, those impetuous Republicans.

Well, we know what happened to Coolidge. McCamant's nomination might have been out of gratitude. I don't know why he failed of confirmation -- on paper, his credentials are perfectly satisfactory. Perhaps a slap at Coolidge from Senators who thought this too political? One more sidelight. What happened to poor Senator Lenroot, deprived of what would surely have been the presidency? He became a federal appellate judge after his Senate days -- on what became the Federal Circuit, where he served from 1929 to 1944.
Thanks much to Professor Garvin for taking the time to write. Judge Lenroot's biography can be accessed here.
Posted at 11:00 by Howard Bashman



Available online at law.com: In news from California, "Show Me the Money; Lawyers, professors back Townsend's Microsoft fee bid." An article is headlined "Unwanted Mail: Neo-Nazi group sends letters to criminal defense lawyers using address list bought from Florida Bar." And Shannon P. Duffy reports that "Indian Tribe Sues Over Pennsylvania Land; The Delaware Nation wants to open casino."
Posted at 10:51 by Howard Bashman



"A run at the streak: Consumers Union faces a product suit; it hasn't lost one yet." This article appears in the current issue of The National Law Journal, which may also (in a separate feature) contain my prediction for 2004.
Posted at 10:45 by Howard Bashman



Today's U.S. Supreme Court Order List: Today's Order List can be accessed here. The Court granted review in two cases. According to "SCOTUSblog," the Court won't be issuing opinions until tomorrow.
Posted at 10:00 by Howard Bashman



"Bush insults King's legacy again": Jesse Jackson mentions the recess appointment of Charles W. Pickering, Sr. to the U.S. Court of Appeals for the Fifth Circuit in this op-ed published today in The Chicago Sun-Times. And New York Times columnist Paul Krugman also mentions Judge Pickering today in an op-ed entitled "Going for Broke."
Posted at 09:50 by Howard Bashman



"Jurists' turnout honors prosecutor retiring over health": This article appears today in The Philadelphia Inquirer.
Posted at 09:45 by Howard Bashman



On the agenda: The Supreme Court of the United States will issue an Order List, and perhaps one or more opinions, at 10 a.m. today. Stay tuned for details.
Posted at 09:33 by Howard Bashman



"Locked up indefinitely on a technicality; Immigrants who can't be deported should be released": The Miami Herald contains this editorial today.
Posted at 06:59 by Howard Bashman



"Couple in sex cases are moving away": This article appears today in The St. Louis Post-Dispatch. And in other news from St. Louis, "412-pound trucker contests firing."
Posted at 06:56 by Howard Bashman



"Study: Top 10 law not curbing college choices." The Houston Chronicle reports here today that "Texas universities' top 10 percent policy is not squeezing out significant numbers of high-achieving students from the state's most competitive high schools, contrary to a common perception, according to a new study."
Posted at 06:55 by Howard Bashman



"Lots of daylight essential to U.S. way of justice": This editorial appears today in The San Antonio Express-News.
Posted at 06:54 by Howard Bashman



This morning's Ten Commandments news: The Winston-Salem Journal reports that "Marker is dropped off at City Hall; Robinson says he didn't know procedure to get a permit to put it there." The Charlotte Observer contains an article headlined "A heavy granite surprise for a city; Councilman installs monument bearing Ten Commandments." And The Associated Press reports from North Carolina that "Official told thou shalt not; Commandments stun City Hall."

Meanwhile, in news from Maryland, The AP reports that "GOP lawmakers seek resolution backing ousted Alabama judge; Moore is invited to speak about biblical monument."
Posted at 06:53 by Howard Bashman



"Pickering appointment is by the book, but will inflame nomination battles": This editorial appears today in The Morning Call of Allentown, Pa. The Miami Herald today contains an editorial entitled "Poor judicial choice; Recess appointment of Pickering sends wrong message." The Berkshire Eagle contains an editorial entitled "Pickering goes in the back door." And The Winchester Star contains an editorial entitled "Recess Appointment: Pickering Called to Appellate Bench."
Posted at 06:44 by Howard Bashman



In Tuesday's newspapers: The Washington Post reports that "Bush to Address Same-Sex Marriage; An Effort to Please Backers on Right." In other news, "At Grand Canyon Park, a Rift Over Creationist Book." An article reports that "Poll Indicates Perception of Guilt; Jury Selection Begins Today in Martha Stewart's Stock-Sale Case." In other news, "New Kinds of Drug Tests Weighed for Federal Workers; Bush Administration Considers Sampling Hair, Saliva, Sweat." And columnist Richard Cohen has an op-ed entitled "Lawless in Guantanamo."

The New York Times reports that "Conflict Issue Won't Force Judge Off Pricing Case." And in other news, "Martha Stewart, Near Trial, Arranges Her Image."

The Christian Science Monitor reports that "Affirmative action battle brews anew in Michigan." An article addresses "Should government be trying to promote good marriages?" In other news, "On a Pacific isle, Australia keeps asylum seekers on ice." And Amatzia Baram and Gabriel Weimann have an op-ed entitled "Hussein's trial: Make it an unabashed media event."
Posted at 06:10 by Howard Bashman



Monday, January 19, 2004
"Teen's appeal to attack sentencing guidelines": Tuesday's issue of The Atlanta Journal-Constitution will contain this report.
Posted at 23:59 by Howard Bashman



"Claims of misdeeds rip race for judge; Opponent alleges judge tampered with Web page": This article will appear in Tuesday's edition of The Milwaukee Journal Sentinel.
Posted at 23:57 by Howard Bashman



"Senator files bill to block gay unions; Constitutional amendment sought to define marriage": The Clarion-Ledger today contains this report from Mississippi.
Posted at 23:55 by Howard Bashman



"Abortion foes take battle to court; State accused of not complying with 1983 law": This article appears today in The Idaho Statesman.
Posted at 23:53 by Howard Bashman



"Anti-prayer fight treats adults like kids": Greg Abbott, the Attorney General of Texas, has this op-ed today in The San Antonio Express-News.
Posted at 23:52 by Howard Bashman



"Plaintiff's character no matter in ADA case": This editorial appears today in The Commercial Appeal of Memphis.
Posted at 23:50 by Howard Bashman



In Monday's newspapers: USA Today reports that "Compensation battles inflict new wounds on 9/11 families; Federal payments lead to lawsuits, bitterness." And in other news, "Jackson hearing expected to be delayed for months; Lawyer busy with other cases; court to pick date in February."

The Los Angeles Times reports that "Town Wants Gown to Cover More Expenses; The Chicago-area home to Northwestern seeks a bigger share of revenue from the campus, which has sued. Elsewhere, universities pony up." An article reports that "Synagogue Feted as Feud Goes On; An Orthodox Jewish community celebrates, but some Hancock Park neighbors fume." In other news, "Emotions High as '85 Abuse Case Reviewed; Prosecutor grills men who recant childhood testimony. The hearing will decide whether inmate gets retrial." Heather Mac Donald has an op-ed entitled "'Sanctuary' Laws Stand in Justice's Way; Why shouldn't the police arrest dangerous illegal aliens on sight?" And columnist Al Martinez has an essay entitled "Turning back time after law strikes 3."

The Washington Post reports that "9/11 Panel Unlikely to Get Later Deadline; Hearings Being Scaled Back to Finish Work by May; Top Officials Expected to Testify." In other news, "Imam Accused of Lies on Terrorist Links; Charge Results From Citizenship Application in 1990s, U.S. Attorney Says." An editorial is entitled "Foreign Policy in Court." Today's "Federal Diary" column by Stephen Bar is entitled "Judges Agree With Union on Honorifics During Negotiations." And Nan Aron, President of Alliance for Justice, has a letter to the editor that appears under the heading "527 'Bogeyman' Poses No Threat."

The Washington Times reports that "Study used census information for terror profile." And Nat Hentoff has an op-ed entitled "Handcuffing judges and justice."

Finally, The Boston Globe contains an editorial entitled "A Grand Canyon schism."
Posted at 22:05 by Howard Bashman



"Reciting the pledge part of bill; Senator also wants schools to have a moment of silence": This article appears today in The Indianapolis Star.
Posted at 21:00 by Howard Bashman



"Checkmate in the Judges Game? For democracy's sake, President Bush should threaten a recess appointment, or two." Legal Times published this essay by Randolph J. May back in September 2003. May is a senior fellow with The Progress & Freedom Foundation, whose blog can be accessed here.
Posted at 20:50 by Howard Bashman



"Feds to appeal same-sex ruling": Canadian Press offers this article.
Posted at 19:55 by Howard Bashman



"Watchdog groups question Cheney, Scalia hunting trip; Supreme Court justice denies doing anything improper": CNN.com provides this report.
Posted at 19:54 by Howard Bashman



"Case could boost funding for private schools; The US Supreme Court considers whether federal judges can rule on a parochial-school tax credit." Warren Richey will have this article in Tuesday's edition of The Christian Science Monitor.
Posted at 19:43 by Howard Bashman



"On business: Outsourcing hits legal services." This article appeared Friday in The Minneapolis Star Tribune.
Posted at 19:40 by Howard Bashman



Federal appellate court recess appointment trivia: Congress created the current U.S. Courts of Appeals in 1891. Since that time, there has been only one individual who, after receiving a recess appointment to a U.S. Court of Appeals, failed to gain confirmation from the U.S. Senate to a life-tenured position before the recess appointment expired. Chances are you've never heard of Wallace McCamant, who served on the U.S. Court of Appeals for the Ninth Circuit from May 25, 1925 through May 2, 1926 following a recess appointment by President Calvin Coolidge.
Posted at 18:08 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "U.S. Presses for Leeway in Terror Probes"; "Commandments Honored at City Hall in N.C."; and "New York Nixes Brooklyn's 'Oy Vey' Sign."
Posted at 17:43 by Howard Bashman



Much ado about next to nothing: President Bush's recess appointment Friday of Charles W. Pickering, Sr. to the U.S. Court of Appeals for the Fifth Circuit was big news, and it deserved the press coverage that it received. For one thing, Judge Pickering is only the third recess appointee to the federal bench since Lyndon B. Johnson was President. (A complete list of recess appointees to the federal judiciary exists at the end of this PDF document.)

Nevertheless, it is quite easy for partisans who enthusiastically support or oppose the current filibustering of several of President Bush's federal appellate court nominees to magnify the impact of Friday's news far out of proportion to reality.

Those who oppose Judge Pickering need to remember that he is joining a federal appellate court that already contains a vast majority of Republican nominees. Of the fifteen active judges serving on the Fifth Circuit before the recess appointment, eleven were nominated by Presidents Reagan, George H.W. Bush, and George W. Bush. When Judge Pickering joined the Fifth Circuit, the Republican majority grew from 11-4 to 12-4. Moreover, as a result of the recess appointment, Judge Pickering if not confirmed to a lifetime post by the U.S. Senate will be leaving the federal judiciary in January 2005. Had the recess appointment not occurred, Judge Pickering would have been entitled to remain as a U.S. District Court Judge for the rest of his life. On the other hand, Democrats in the U.S. Senate can use the Pickering recess appointment as the basis for refusing to confirm other federal court nominees who are not as controversial as those individuals who are currently the subject of filibusters. After all, why not ratchet-up the partisanship another notch? This is not a risk that President Clinton faced, because he made his one recess appointment to the federal judiciary with just days to go before leaving office.

Those who support Judge Pickering's ascension to the Fifth Circuit need to keep in mind that, for the reasons explained in the preceding paragraph, the appointment really won't significantly alter the make-up of that court. Had President Bush made recess appointments to the Sixth Circuit or the D.C. Circuit, you'd have the potential for significant impact, because those courts are now evenly or almost evenly divided between Republican and Democratic nominees. There are several reasons why I don't anticipate any additional recess appointments before the November elections. First, most of the other nominees who are the subject of filibusters (or the Sixth Circuit blockade of Michigan nominees) currently hold jobs of importance that are not worth abandoning in exchange for serving as a federal appellate judge for a year or so. Second, the absurd idea that the President should recess appoint particularly controversial individuals who haven't even been nominated to fill existing federal court vacancies is made even more absurd when you realize that these appointees would not only have to leave their current jobs, but would also have to work in exchange for no pay (see pages 11 and 12 of this PDF file for the details). Indeed, it appears that Judge Pickering was especially well situated to take advantage of a recess appointment because, after his one year of additional judicial service, he will be entitled to retire from the federal judiciary with a full lifetime pension. And finally, history would likely take a dim view of a President who made wholesale use of the recess appointment power to the federal judiciary instead of compromising with the Senate to find mutually acceptable candidates. Of course, the Senate already has confirmed some quite conservative nominees put forth by President George W. Bush.

For all of these reasons, I hope both sides in the current battle over judicial nominations realize that the Judge Pickering recess appointment is not a reason to make the judicial nomination and confirmation process even more partisan and insurmountable than it already is. But if the Democrats see the need to retaliate, I fear that it will be other Republican nominees for federal appellate court vacancies who may regret the most what happened last Friday.
Posted at 16:30 by Howard Bashman



Pickering a fight: President Bush's recess appointment Friday of Charles W. Pickering, Sr. to the U.S. Court of Appeals for the Fifth Circuit is the lead item in the current installment of OpinionJournal's "Best of the Web Today."
Posted at 15:25 by Howard Bashman



Admiration shown toward Justice Sandra Day O'Connor on recent "NewsHour with Jim Lehrer" segment causes at least one law professor to lose his lunch: See this post from Thomas Smith of "The Right Coast" blog. (Thanks to Brian Leiter for the pointer.) Back on January 13th, I provided links to both the audio and written transcript of this broadcast.
Posted at 14:40 by Howard Bashman



"First anniversary of Southwest Virginia law blog": It's today, and you can commemorate one year of blogging about legal developments in Virginia by clicking here to visit the site and seeing what it has to offer.
Posted at 14:30 by Howard Bashman



A plethora of Padilla filings: Via FindLaw, you can access online here the petition for writ of certiorari that the federal government filed late Friday in the case of Rumsfeld v. Padilla. Accessible here is the federal government's motion for expedited consideration and an expedited briefing schedule if certiorari is granted. Finally, at this link you can access a document that the federal government filed Friday in the U.S. Court of Appeals for the Second Circuit in connection with seeking a stay of that court's mandate pending action on the federal government's cert. petition.
Posted at 13:30 by Howard Bashman



Today the federal and state holiday in honor of the birth of Rev. Martin Luther King, Jr. is observed: He would have turned 75 years old this past January 15th. In observance of the holiday, most every appellate court in the United States is officially closed today. In the past, however, today's holiday was not among the holidays officially observed by the U.S. Court of Appeals for the Fifth Circuit. I will keep an eye on that court's Web site to see if any opinions issue today. Update: Several not-for-publication opinions have indeed been handed down today.
Posted at 13:26 by Howard Bashman



"Orthodox Jews fight condo rules in Supreme Court; Want to put religious huts on Montreal property. Ruling could determine whether private contracts can override the charter and human-rights legislation." The Montreal Gazette today contains this report. More information about the Jewish holiday of Sukkot can be accessed here.
Posted at 13:13 by Howard Bashman



The Yale Daily News is reporting: Friday's issue contained articles headlined "Harvard Law joins fight vs. Solomon; Harvard Law students, faculty file amicus briefs" and "A&M decision sparks debate on admissions debate."
Posted at 13:11 by Howard Bashman



Choose litigation: The Associated Press reports from Oklahoma that "Abortion rights group sues Oklahoma over 'Choose Life' plates." And The Knoxville News Sentinel recently reported that "Petition turned in for 'Choose Life' tag." It almost makes one wonder how George Maynard is doing these days. He challenged the text of a license plate in the historic case of Wooley v. Maynard (U.S. 1977). [This is beginning to remind me of the "I'm Chadha!" story that I heard during my recent blog-related visit to the Harvard Law School, but that's a tale for another time.]
Posted at 13:01 by Howard Bashman



"State lawmaker proposes gay unions; Assembly member pushes bill to grant marriage licenses": This article appears online at The Fresno Bee.
Posted at 12:43 by Howard Bashman



The Associated Press is reporting: Now in the news, "Senecas Sue Over Internet Tobacco Ban" and "Fla. Terror Case Tests U.S. Patriot Act." Also, The Seattle Times features an AP report headlined "Mike may be Rowe, but 'soft' is trouble."
Posted at 12:25 by Howard Bashman



"Blogs as a Disruptive Technology: In the future, the advantage will shift to sites built on easy-to-use templates and rocket-powered blog technology. Designer Web sites will make as much sense as $500 neckties." Jerry Lawson has this article in the January-February 2004 issue of Law Practice Magazine, published by the American Bar Association.
Posted at 10:05 by Howard Bashman



And speaking of Guantanamo Bay: The New York Times today contains an article headlined "Australian Parents Have New Hope for U.S.-Detained Son." One month ago yesterday, I posted online here an item containing numerous links to the press coverage this matter has been receiving in Australia.
Posted at 09:25 by Howard Bashman



Get your Gitmo briefs: The law firm Jenner & Block is offering via a page on its Web site easy access to the briefs filed in the U.S. Supreme Court in the two related Guantanamo detainee cases, Rasul v. Bush and Al Odah v. United States.
Posted at 09:19 by Howard Bashman



On this date in 1970: President Nixon nominated G. Harrold Carswell to the U.S. Supreme Court to fill the vacancy that arose when Justice Abe Fortas resigned. The U.S. Senate had already rejected President Nixon's first nominee to fill that vacancy, Clement F. Haynsworth, Jr. After the Senate rejected Carswell, President Nixon's third nominee, Harry A. Blackmun, was easily confirmed. There wouldn't be another instance of three announced nominees to fill one U.S. Supreme Court vacancy until President Reagan nominated Anthony M. Kennedy to join the Court in late 1987.
Posted at 08:05 by Howard Bashman



"Case galvanizes opponents of U.S. secrecy; The Supreme Court will consider a South Florida immigrant's challenge to government secrecy about his detention in the war on terrorism." This article appears today in The Miami Herald.
Posted at 07:52 by Howard Bashman



"Intellectual Capital: Unjamming judicial selection; After Bush's latest provocation, is there a way out of partisan paralysis on judges?" Michael McGough of The Pittsburgh Post-Gazette today has this essay in that newspaper.
Posted at 07:47 by Howard Bashman



Sunday, January 18, 2004
Elsewhere in Sunday's newspapers: The Los Angeles Times reports that "Judge May Face Sanctions; Federal jurist improperly took over bankruptcy case, judicial panel says." In other news, "Guilty Plea in 9/11 Fraud; A man could get 10 years for cheating charities of $135,500 by falsely claiming his wife died in the 2001 attacks." An article reports that "Damage in Appalachia Trickles From Top; Residents argue in court that leveling peaks for mining is destructive, as the Bush administration revises the law in favor of the coal industry." In news from Oregon, "Police Ordered to Tone Down Their @%*&!; People complained about swearing. Now officers must report themselves." The Associated Press reports that "Billy the Kid's Life and Death May Be Put to the DNA Test; Officials want to exhume the body of the outlaw's mother to test a Texas man's claim that he was Bonney. If so, Pat Garrett didn't kill the Kid." An article in the Magazine section is headlined "The Demonized Seed: As a Recreational Drug, Industrial Hemp Packs the Same Wallop as Zucchini. So Why Does the U.S. Drug Enforcement Agency Continue to Deny America This Potent Resource? Call It Reefer Madness." In local news, "Talking About Jackson Over Coffee; Round-table discussion in Leimert Park brings a range of opinions about pop singer and his trial." Law Professor Jonathan Turley has an op-ed entitled "WMD in Our Own Backyard; Trains loaded with toxic chemicals put millions at risk." Gregory Rodriguez has an op-ed entitled "Bush Reaches Out, Falls Short; President's Mexican American backers get rhetoric and half-baked proposals in return." And a letter to the editor appears under the heading "Fastow's Deal Not Appropriate to Actions."

The Boston Globe reports that "Weaker church tested on marriage." In other news, "Offender registry fault seen in Woburn." An item in the Magazine section is headlined "Republican, Pragmatic, and Gay: The leader of the Log Cabin Republicans says it's better to fight for civil rights as an insider than as a noisy protester." And Eileen McNamara has an essay entitled "For bishops, wrong fight."

Finally for now, The Washington Times contains an editorial entitled "Rogue judges and their enablers." Alan Reynolds has an op-ed entitled "A fair trial for Martha?" And Larry Elder has an op-ed entitled "Chaneled blame."
Posted at 23:10 by Howard Bashman



"Counties Compete to Welcome a Murder Trial": This article will appear in Monday's issue of The New York Times.
Posted at 23:00 by Howard Bashman



"Commissioner to bring back God resolution": This article appears today in The Knoxville News-Sentinel.
Posted at 22:50 by Howard Bashman



Perhaps the Senate Judiciary Committee hearing scheduled for Thursday, January 22, 2004 won't be so boring after all: As I noted here this past Thursday, the Senate Judiciary Committee is scheduled to hold its first confirmation hearing of 2004 for judicial nominees this upcoming Thursday. My previous post explained that Eighth Circuit nominee Raymond W. Gruender (who now serves as U.S. Attorney for the Eastern District of Missouri) is the lone federal appellate court nominee scheduled, along with several federal district court nominees, to appear at the hearing.

This hearing was destined to be rather uneventful, but then this past Friday President Bush used a recess appointment to place Charles W. Pickering, Sr. on the U.S. Court of Appeals for the Fifth Circuit. Because this upcoming Thursday's meeting will be the first Senate Judiciary Committee hearing to occur after the Pickering recess appointment, you can be certain that both Democrats and Republicans alike will speak at length at Thursday's meeting about that recess appointment.
Posted at 22:45 by Howard Bashman



In the January 26, 2004 newsweeklies: U.S. News & World Report has for its cover story "The real John Ashcroft." The lengthy lead article is headlined "Ashcroft's Way: America's top cop has been demonized and lionized. He's a complex guy all right, just not the guy everyone thinks he is." An online interview with Attorney General Ashcroft appears under the heading "Respecting the Client, With Clarity." An unrelated article is headlined "Time to Butter up the Jury: The case against Martha Stewart hinges on the domestic doyenne's believability."

Newsweek contains an item headlined "How the '20th Hijacker' Got Turned Away."

And Time contains an article headlined "A Trust Betrayed? Native Americans claim the U.S. mismanaged their oil and gas legacies it promised to protect."
Posted at 19:44 by Howard Bashman



In Sunday's newspapers: The New York Times reports that "Critics Say the Park Service Is Letting Religion and Politics Affect Its Policies." An article reports that "Plagued by Drugs, Tribes Revive Ancient Penalty." In other news, "Workers Assail Night Lock-Ins by Wal-Mart." Adam Liptak has an article headlined "Is Internet Voting A 'High-Tech Poll Tax'?" and a book review headlined "The Making and Taking of AOL Time Warner." In news from Madrid, "Court Backs Spanish Prostitutes' Fight for Status as Workers." An article is headlined "New Concern That Politeness Is a Lost Art in the Office." In real estate, "New Law Building Opens at N.Y.U." An editorial is entitled "Fixing Democracy." Today's Education Life section contains numerous articles about Brown v. Board of Education. Adam Cohen has an article headlined "The Supreme Struggle." Juan Williams has an article headlined "Poetic Justice" about Thurgood Marshall's role in the desegregation battle. And in related coverage, "The Reluctant Icons"; "When Busing Ends"; "When Schools Were Shacks"; "Law's New Course: Gay Rights"; and "Selected Commemorations."

The Washington Post reports that "U.S. School Segregation Now at '69 Level; Study Shows 15-Year Decline; Hispanics Less Integrated Than African Americans." A front page article reports that "Hopes for Civility in Washington Are Dashed; In Bush's Term, Tone Worsened, Partisans Say." In other news, "Northwest Gave U.S. Data on Passengers; Airline Had Denied Sharing Information For Security Effort." In international news, "Chinese Move to Relax Severe Judicial Penalties." In local news, "Va. High Court Upholds Death Term for Powell; Letter Amounted to Confession." An editorial is entitled "The Defense Speaks." Gary J. Bass has an op-ed entitled "At Saddam's Trial, the Law Is Just Part of the Picture." And Henri E. Cauvin has an essay headlined "The Judge's Gavel, Quietly Demoted to Movie Prop."
Posted at 18:32 by Howard Bashman



"Judge May Face Sanctions; Federal jurist improperly took over bankruptcy case, judicial panel says": The Los Angeles Times today contains an article by Henry Weinstein that begins:
A veteran federal judge faces disciplinary proceedings after he improperly seized control of a bankruptcy case in an effort to protect a woman whose probation he had decided to oversee personally, according to a federal judicial disciplinary council.

Penalties for District Judge Manuel L. Real, 79, who has been a controversial member of the federal judiciary in Los Angeles since 1966, could range from a private reprimand to loss of the authority to hear cases.
You can access the complete article at this link.
Posted at 15:20 by Howard Bashman



"Court issue prompts pro-life gathering": Even on the island of Guam the U.S. Supreme Court's ruling in Roe v. Wade draws protest. Monday's issue of The Pacific Daily News contains this report. Closer to home, The Indianapolis Star today contains an op-ed by Russ Pulliam entitled "Roe v. Wade ruling only fueled debate over abortion."
Posted at 11:52 by Howard Bashman



"Privacy issues plague picture phones": This article appears today in The Honolulu Advertiser.
Posted at 11:50 by Howard Bashman



"Bush Thwarts Opposition to Judge Pickering": This morning's broadcast of NPR's "Weekend Edition - Sunday" contained this report (Real Player required) featuring Helen Dewar of The Washington Post.
Posted at 11:45 by Howard Bashman



"Making Federal Cases Out of Common Crimes; Robbers, pimps, wife-beaters, deadbeat dads and carjackers all have been targeted by Congress. These offenses could be prosecuted locally." The Associated Press offers this article.
Posted at 08:28 by Howard Bashman



"UC law grad oversees war trials; Chief of Guantanamo tribunals wants 'to ensure we get this right'": This article appears today in The Cincinnati Enquirer.
Posted at 08:27 by Howard Bashman



"N.D. lawyer preps to argue case before U.S. Supreme Court": The Associated Press provides this report.
Posted at 08:23 by Howard Bashman



"Pickering ponders political ordeal; Judge says fight to get on bench has been an ordeal": This very interesting article appears today in The Atlanta Journal-Constitution.
Posted at 08:18 by Howard Bashman



Saturday, January 17, 2004
Thanks to everyone who emailed to suggest questions for Ninth Circuit Judge Stephen Reinhardt, February 2004's participant in the "20 questions for the appellate judge" feature: If you proposed a question and happen to be a journalist covering the law whose name appears online here frequently, chances are I asked about the topics you suggested. For those of you who used the opportunity to vent your spleen with regard to next month's interviewee, I hope the experience proved cathartic, because your questions were a bit too combative, as many of you recognized they would be. In the final analysis, however, I am very pleased with the questions that I forwarded yesterday to Judge Reinhardt, and I believe they provide him with the opportunity to have one of the most interesting interviews yet in the entire "20 questions for the appellate judge" series.
Posted at 23:55 by Howard Bashman



"American Bud battles Czech Bud over beer trademark": The Associated Press provides this report.
Posted at 23:53 by Howard Bashman



"Terror case prosecutor is probed on conduct; Outcome of investigation could give the defendants a new trial": This article appears today in The Detroit Free Press.
Posted at 23:50 by Howard Bashman



In Saturday's newspapers: In The New York Times, Linda Greenhouse reports that "Justices to Rule on Holding Illegal Immigrants." In other news, "Plaintiffs Say Microsoft Still Behaves Badly." An article reports that "Street Party Reigns Outside as Jackson Pleads Not Guilty." In college football-related news, "Lawyer Says Clarett Will Forgo the Draft." And an editorial is entitled "Now, Air-Conditioners."

In The Washington Post, Charles Lane reports that "High Court to Consider Detention Case; Justices to Decide if U.S. Can Indefinitely Imprison Criminal Illegal Immigrants." In other news, "Supreme Court Hands Texas GOP a Redistricting Victory." In news from the D.C. Circuit, "Lawsuits of Terrorism Victims Limited; Court Says Congress Did Not Authorize Claims Against Foreign Governments." An article reports that "Prosecutors Still Unhappy With Microsoft." In news from California, "With a Chorus of Fans in Court, Jackson Pleads Not Guilty." An article reports that "Fairfax Jail To Charge Its Inmates $1 a Day; Room-Board Payment Is Only One in Area." And in other local news, "Leading Va. Jihad Member Pleads Guilty."

The Washington Times reports that "Court to decide fate of Mariel Cubans." And an editorial is entitled "Defenseless in D.C."

In The Boston Globe, Lyle Denniston reports that "High court to rule on immigrant detention; Justice Dept. appeal on security gap to be mulled." And an article reports that "Bishops try to mobilize on marriage; Massive mailing to urge Catholics to back measure."

In The Los Angeles Times, David G. Savage reports that "Trip With Cheney Puts Ethics Spotlight on Scalia; Friends hunt ducks together, even as the justice is set to hear the vice president's case." In other news, "Microsoft Practices Fall Short, U.S. Says; Changes to its practices are not meeting goals of the antitrust settlement, regulators say." In celebrity-related news, "After Late Arrival, Jackson Pleads Not Guilty to Charges; Judge warns singer not to be tardy. He keeps search and arrest warrants sealed, but may ease gag order"; "Hoopla Eclipses Jackson Hearing; Global media, hordes of fans, hucksters and police turn out for the singer's day in court"; and "Unsettling Reality Show of a Celebrity Defendant Begins." In election-related news, "Candidate Alleges Unjust Desserts; A ruling is expected in a suit over the '03 Carson election. Councilwoman gave out cookies at polls but denies her foe's claim that it was wrong." An article reports that "Red Flag Raised Over CIA, Special Forces; Collaboration is growing, but an Army officer says it's 'fraught with danger.'" In local news, "County Weighs Award in Alleged Harassment Case." And in news from San Francisco, "Judge Rebuffs Cost-of-Living Hike in Welfare."

OpinionJournal contains an editorial entitled "President Kessler, Etc. The latest judicial power grabs."

Finally, my round-up of today's newspaper reports on President Bush's recess appointment of Charles W. Pickering, Sr. to the U.S. Court of Appeals for the Fifth Circuit can be accessed here.
Posted at 23:00 by Howard Bashman



"Supreme Court Unscrambles DVD Decision": Reuters offers this article. Update: Why Reuters issued this report today will forever remain a mystery, because the news the article contains actually occurred one year ago this month. See this post of mine from January 3, 2003. And thanks to the reader who drew to my attention Reuters's amazing oversight.
Posted at 21:02 by Howard Bashman



"Group Sees Conflict With Cheney, Scalia": The Associated Press has this report.
Posted at 21:00 by Howard Bashman



"Scalia-Cheney Trip Raises Eyebrows": CBS News provides this coverage. My earlier posts about this matter can be accessed here and here.
Posted at 16:20 by Howard Bashman



"Judge says daughter married to father must live separately": The Associated Press has this report from Mobile, Alabama. And The Mobile Register today reports that "Father, daughter who married to get release; Theodore family members ordered in plea agreements not to live together after gaining freedom Thursday."
Posted at 16:05 by Howard Bashman



"'Under God' verse divides Alabamians; The U.S. Supreme Court will hear arguments in March on a pledge case": This report appears today in The Montgomery Advertiser.
Posted at 16:00 by Howard Bashman



"Bush Seeks Quick Ruling on U.S. Detainees": Anne Gearan of The Associated Press provides this account of the latest developments in the Jose Padilla case.
Posted at 13:40 by Howard Bashman



"Recess Appointments of Federal Judges": The Congressional Research Service issued this report in September 2001. Thanks to the "quasi in rem" blog for the pointer to the CRS report. By the way, CRS shouldn't be confused with KRS-One (the rapper featured on R.E.M.'s "Radio Song" (Quick Time player required)).
Posted at 13:30 by Howard Bashman



"From Pa. death row to freedom; Nicholas Yarris was cleared by DNA in a 1981 slaying. He returned home to Philadelphia last night." This article appears today in The Philadelphia Inquirer. The Associated Press reports that "State frees death row inmate exonerated by DNA." The Delaware County (Pa.) Daily Times today contains an article headlined "Freedom for Yarris." As earlier DelCo Times coverage notes (see articles here and here), this result followed much hard work by a team of lawyers headed by Peter Goldberger, perhaps the leading federal appellate criminal defense attorney in the Philadelphia region. By coincidence, I happened to have had lunch with Goldberger yesterday, and he received the very happy news of Yarris's release while we were at lunch. Coverage of the news extends to overseas, as The Sunday Telegraph of Australia reports that "DNA clears death row inmate." The blog "TalkLeft" notes yesterday's developments here.
Posted at 12:45 by Howard Bashman



"Questioning the Constitutionality of Recess Appointments to the Federal Judiciary": That's the title of my monthly appellate column that appeared in The Legal Intelligencer on March 12, 2001. Strong arguments can be made in support of the contrary position, that recess appointments of federal judges are constitutional, as this paper written by several very impressively credentialed members of The Federalist Society asserts. What is desirable, in any event, would be to have this question definitively resolved by the U.S. Supreme Court. The Supreme Court's decision from June 9, 2003 in Nguyen v. United States (whose outcome I previously summarized here) suggests to me that the Court may be willing to resolve the question sometime soon.
Posted at 09:10 by Howard Bashman



Perhaps "How Appealing" isn't really the best overall Australian blog: The blog "A Yank in Oz" contends that to win the competition for best overall Australian blog, a blog's author should probably reside at least some of the time in Australia. It's just one more reason why I really should apply for a passport in the very near future.
Posted at 09:04 by Howard Bashman



Round-up of this morning's newspaper coverage of President Bush's recess appointment yesterday of Charles W. Pickering, Sr. to the U.S. Court of Appeals for the Fifth Circuit: In news coverage from Mississippi, The Clarion-Ledger today reports that "Bush sidesteps Dems." The article is accompanied by a photograph of Judge Pickering's swearing-in to the Fifth Circuit last night. The Biloxi Sun Herald reports that "Pickering given appointment; Bush's move sparks praise, criticism." And The Hattiesburg American contains an article headlined "Pickering on appeals court."

The New York Times contains a report from Neil A. Lewis headlined "Bush Seats Judge, Bypassing Senate Democrats" and an editorial entitled "A Judicial End Run." The Washington Post contains a front page article headlined "Bush Bypasses Senate On Judge; Pickering Named To Appeals Court During Recess" and an editorial entitled "End Run for Mr. Pickering." The Los Angeles Times reports that "In Rare Move, Bush Installs Judge Pickering; Democrats who had blocked the 5th Circuit nominee are bypassed during the Senate recess." Stephen Henderson of Knight Ridder Newspapers reports that "Bush bypasses Congress, installs Pickering on court." The Washington Times reports that "Bush names judge despite filibuster." The Baltimore Sun contains an article headlined "Bypassing Congress, Bush taps Pickering; Appeals court nominee appointed during recess; Civil rights record criticized." Newsday reports that "Bush Bypasses Senate on Judge." And The Charlotte Observer today contains an article headlined "Judge's hearing catapulted Edwards into the spotlight; Then-junior senator from N.C. questioned Pickering's work on case."
Posted at 08:35 by Howard Bashman



"Neas Calls Pickering Recess Appointment 'Absolutely Outrageous'": People For the American Way issued this press release late Friday.
Posted at 00:01 by Howard Bashman



Friday, January 16, 2004
Elsewhere in Friday's newspapers: The Los Angeles Times contains an article headlined "600 Felony Trials and Counting for Prosecutor; Ken Lamb's total in the county D.A.'s office makes him 'the Babe Ruth of trial lawyers.'" In other news, "Foster Son Loses Ruling; Court says man who was raised like a member of the family but never adopted cannot receive inheritance. It will go to distant blood relatives." In celebrity related news, "Timetable Worries Bryant's Lawyers" and "Security to Be Tight for Jackson's Arraignment." In local news, "Suit Says Firm Denied Claims After Holocaust." And an editorial is entitled "Pinstripes to Prison Stripes."

In The San Francisco Chronicle, Bob Egelko has articles headlined "State's top court strikes down foster child's claim to estate; Inheritance belongs to niece, nephew despite distant relationship, justices decide" and "Insurance law is contested; Challenge to state's SB2 awaits ruling by appeals court."

And finally for now, The Boston Globe contains an article headlined "Jewish group OK's same-sex marriage."
Posted at 23:30 by Howard Bashman



"Bush Bypasses Senate On Judge; Pickering Named To Appeals Court During Recess": Saturday's issue of The Washington Post will contain this front page article and an editorial entitled "End Run for Mr. Pickering." In Saturday's edition of The New York Times, meanwhile, Neil A. Lewis reports that "Bush Seats Judge, Bypassing Senate Democrats."
Posted at 23:19 by Howard Bashman



"Pickering sworn in to 5th Circuit": The Associated Press reports here that "Federal judge Charles Pickering joined the 5th U.S. Circuit Court of Appeals tonight (Friday) hours after President Bush bypassed Congress to put him on the bench. Pickering, 66, took the oath of office from fellow Appeals Judge Rhesa Barksdale at the federal courthouse in Jackson."

And in other coverage, "How Appealing" reader Stephen Henderson of Knight Ridder Newspapers reports that "Bush bypasses Congress, installs Pickering on court." CNN.com reports that "Bush puts Pickering on appeals court; Recess appointment draws criticism from Democrats." And Saturday's edition of The New York Times will contain an editorial entitled "A Judicial End Run."
Posted at 22:17 by Howard Bashman



The wire services are reporting: Anne Gearan of The Associated Press has a report headlined "White House to Appeal Terror Suspect Case." The AP also reports that "Candidates Slam Bush on Pickering." The article quotes candidate Howard Dean as saying, "Yesterday he went and saluted Dr. King's birthday. Today he appoints a racist to the Supreme Court." Jesse J. Holland reports that "Bush installs Pickering on appeals court." And in other Mississippi-related news, "Gag order arguments heard in Diaz case."

Finally for now, Reuters reports that "Bush Bypasses Congress on Conservative Court Pick."
Posted at 20:52 by Howard Bashman



"Court OKs Disability Pay for Horseplay Injury": Reuters today provides this report. My earlier coverage can be accessed here.
Posted at 20:44 by Howard Bashman



You heard it here first: In Saturday's edition of The Los Angeles Times, David G. Savage will have an article headlined "Cheney Hunting Trip With Scalia Raises Impartiality Questions." One week ago today, I published a post that read:
Gone huntin': A reader emails to ask whether this might give rise to a need to recuse in connection with this. Well, I've never held myself out to be the expert on questions of this nature. If any readers have special insight they'd like to share, my email address is readily at hand.
As one reader wrote in response to my original post, how would people react if Justice David H. Souter had accepted Michael Newdow's invitation to go on a bird-watching expedition?
Posted at 20:06 by Howard Bashman



From this evening's broadcast of NPR's "All Things Considered": This evening's broadcast contained the following audio segments (Real Player required): "Bush Bypasses Senate, Gives Pickering Appellate Post" (featuring Nina Totenberg); "Death-Row Inmates Challenge Lethal Injection"; and "Fans Flock to Court for Jackson's Arraignment."
Posted at 20:00 by Howard Bashman



The Alliance opposes, but the Committee approves: The Alliance for Justice has issued a press release entitled "Alliance for Justice Outraged Over Recess Appointment of Judge Pickering to Fifth Circuit." In contrast, The Committee for Justice has issued a press release entitled "CFJ Applauds White House for Pickering Recess Appointment to Court of Appeals."
Posted at 19:53 by Howard Bashman



Access online President Bush's statement regarding his recess appointment of Charles W. Pickering, Sr. to the U.S. Court of Appeals for the Fifth Circuit: The statement, accessible here, begins: "Today I was proud to exercise my constitutional authority to appoint Judge Charles W. Pickering to serve on the United States Court of Appeals for the Fifth Circuit."
Posted at 19:41 by Howard Bashman



Old news: Back on November 21, 2003, the following post appeared here at "How Appealing":
"Leaders pushing recess option for Pickering; Republicans think this is last means to get judge to serve on 5th Circuit Court": This article appears today in The Clarion-Ledger. Aside from possible constitutional concerns that could be raised, a recess appointment for Fifth Circuit nominee Charles W. Pickering, Sr. would cause him to leave his current life-tenured job as a U.S. District Court Judge for a job as a U.S. Court of Appeals Judge that he could only hold for fewer than two years if he isn't confirmed by the U.S. Senate.
The Clarion-Ledger article went on to observe that "A recess appointment would allow Pickering, 66, to sit on the appellate court until the end of 2004. Then, he would be eligible for full retirement benefits because of his age and length of service on the federal bench."
Posted at 15:55 by Howard Bashman



"Bush Installs Pickering on Appeals Court": The Associated Press provides this report. Before today, the last recess appointee to a federal appeals court was Roger L. Gregory, via a recess appointment from President Clinton. President Bush renominated Judge Gregory to the Fourth Circuit before the recess appointment had expired, and Judge Gregory was confirmed in the U.S. Senate by a wide margin, if I recall correctly. District Judge Walter M. Heen of the U.S. District Court for the District of Hawaii, by contrast, was the most recent recess appointee to an Article III court whom the U.S. Senate failed to confirm.

In which of these two categories Judge Charles W. Pickering, Sr. will end up remains to be seen, but I doubt that Senate Democrats will be in any hurry to confirm Judge Pickering to a lifetime post on the Fifth Circuit. Absent Senate confirmation, Judge Pickering's tenure on the Fifth Circuit will expire in January 2005.

Coincidentally, the Federalist Society recently published a paper defending the use of recess appointments for federal judicial vacancies. On the other hand, I have questioned the constitutionality of the practice.
Posted at 15:29 by Howard Bashman



"Court Won't Block Texas Redistrict Plan": The AP is reporting that "The Supreme Court refused Friday to block a hard-fought Republican redistricting plan in Texas that could cost Democrats as many as six seats in Congress."
Posted at 15:24 by Howard Bashman



BREAKING NEWS -- President Bush uses recess appointment to put Charles W. Pickering, Sr. onto the U.S. Court of Appeals for the Fifth Circuit: The Associated Press has issued this news alert.
Posted at 15:03 by Howard Bashman



"Court to Take Up Immigrant Detention Case": Gina Holland of The Associated Press provides this report. You can access today's order from the U.S. Supreme Court at this link.
Posted at 14:58 by Howard Bashman



The Miami Herald is reporting: Today's newspaper contains articles headlined "Hate mail targets lawyers; Lawyers are angry because the Florida Bar handed over their addresses to a hate group" and "Jury duty excuse No. 347: I'm an international superstar; A high-profile police corruption trial begins in Miami federal court, but almost all of the attention focuses on only one of the 65 prospective jurors -- singer Gloria Estefan."
Posted at 10:53 by Howard Bashman



No legal advice: This blog doesn't provide legal advice. But common sense should dictate that one wouldn't attempt to bring marijuana into a courthouse that conducts a security screen of visitors. Often common sense isn't quite common enough, as an article headlined "Uh, dude, where's my, uh, memory?" from today's issue of The Des Moines Register reminds us.

In other news from Iowa, earlier this week The Register published an article headlined "Judge: Latex covers nudity law." The article begins, "West Des Moines topless dancers who paint their nipples with skin-colored latex are within a city nudity law, a Polk County judge has ruled."
Posted at 10:45 by Howard Bashman



D.C. Circuit rules that Foreign Sovereign Immunities Act, as amended, does not establish a cause of action against foreign state sponsors of terrorism: It's a big win for the Islamic Republic of Iran, which never even appeared in court to defend against the suit. You can access today's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 10:12 by Howard Bashman



See for yourself: After providing lots of coverage of the Sixth Circuit's latest death penalty-related fireworks, I've finally been able to post online a copy of the relevant order and dissent therefrom entered on the docket yesterday. Earlier posts on this subject can be accessed (in reverse chronological order) here, here, and here.
Posted at 10:05 by Howard Bashman



Sixth Circuit strikes down as unconstitutional certain aspects of Kentucky election law: You can access today's ruling of the U.S. Court of Appeals for the Sixth Circuit in HTML here and in PDF here.
Posted at 09:56 by Howard Bashman



"Racketeer conviction of pimps questioned": The Atlanta Journal-Constitution today contains this report on an oral argument yesterday before the U.S. Court of Appeals for the Eleventh Circuit.
Posted at 09:54 by Howard Bashman



Access online the "Chicago Judges Project": Are judges "political"? Apparently so. Thanks to the blog "That's News To Me" for the pointer.
Posted at 07:11 by Howard Bashman



"Death Sentence Ordered For Courchesne": This article appears today in The Hartford Courant. And The Associated Press reports that "Man sentenced to death for killing pregnant woman." This case was the subject of my monthly appellate column from August 2003, headlined "Legislature Battles Court Over How Statutes Should Be Construed."
Posted at 07:10 by Howard Bashman



In Friday's newspapers: The New York Times reports that "Bush's Power to Plan Trial of Detainees Is Challenged." Adam Liptak reports that "Mexico Awaits Hague Ruling on Citizens on U.S. Death Row." In local news, "Judge Closes Doors on Selection of Stewart Jury"; "Death Penalty Sought in Student's Death"; and "Rikers Houses Low-Level Inmates at High Expense." An article reports that "Finance Battle Shifts to Election Panel." In other news, "NAACP Legal Defense Fund Chief Retires." An article reports that "Protesters Chant and Boo as Bush Honors Dr. King." In news from the campaign trail in Iowa, "Knowing Her Mind, Mrs. Edwards Speaks It." An editorial is entitled "The Shadow of Soft Money." And Anthony Lewis has an op-ed entitled "The Justices Take On the President."

The Washington Post reports that "Democrats' Financing Plan Challenged; Watchdog Groups File Complaint With FEC Over Party's 'Soft Money' Network." In other news, "Groups Urge Probe Of Ashcroft's '00 Bid." An article reports that "Media Barred From Stewart Jury Selection; Judge's Move Surprises Legal Experts." In news from Los Angeles, "Jackson Case Is a Circus, Complete With Caravan." In technology news, "Microsoft to Untie Link To Its Own Web Browser; U.S. Opposed 'Shop for Music' Default." An article is headlined "Emancipated Voices: Online Recordings Tell of Slavery." Editorials are entitled "A Mountain of Waste" and "Mr. Ashcroft and the FEC." And a letter to the editor appears under the heading "Plea Deals: Justice for the Children?"

The Christian Science Monitor reports that "PR-savvy stars navigate the courtroom; Martha Stewart, Kobe Bryant, and other celebrities are trying to maximize their resources to mount a defense." And Daniel Schorr has an op-ed entitled "The leak that went awry."
Posted at 06:25 by Howard Bashman



Thursday, January 15, 2004
Elsewhere in Wednesday's and Thursday's newspapers: In The Los Angeles Times, David G. Savage reports that "High Court Urged to Dump Southland Clean-Air Rule"; "Justices Hear Case on Scope of Disabilities Act; Tennessee says states should be immune from ADA suits. Past rulings favor its bold stand"; and "High Court Says Police Checkpoints for Tips OK." In somewhat related news, "U.S. High Court Rules in Favor of Verizon; Justices reject customer's antitrust complaint. Decision could block other lawsuits." In news from Texas, "Fastows Plead Guilty to Enron Charges." In celebrity trial news, "Lawyers Call Cameras 'Vital' in Jackson Case; Attorneys countering the judge's ban say that live media coverage of Friday's arraignment would ensure that fairness is observed"; "D.A. Told to Unseal Jackson's Records"; "Is race card in Jackson deck? For years the pop singer has blurred color lines, but court watchers are now conditioned to think otherwise"; and "Bryant Lawyers Say Accuser Had 'Scheme.'" An article reports that "Bail Is Denied in Genital Mutilation Case." A profile of U.S. Senator John Edwards (D-NC) is headlined "A Legal Star Who Burned for Politics; After his son's death and two lucrative court wins, Edwards says he wanted a larger stage to do good." In news from Texas, "Autopsy Doctor in Immigrant Disaster Let License Lapse." In other news, "10 More Claims Filed in Market Crash; Victims and survivors of the July accident, which left 10 dead, say Santa Monica should have set up barricades to prevent such tragedies." David Shaw's "Matters of Taste" column asks "What would you have for your last meal? Until this month, a Texas government website listed inmates' final dinner requests. Now there's a cookbook for the morbidly curious." An editorial is entitled "Dangerous Veil of Secrecy." And a letter to the editor appears under the heading "Padilla's Detention Violates Constitution."

USA Today reports that "High court asked to let disabled sue states"; "Justices rule to allow police roadblocks that collect information; Stops aren't violation of Constitution"; and "Cuba detainees seek right to appeal; Military lawyers say terror suspects owed a hearing in civilian court." In somewhat related news, "FBI chief expects tribunals for 3 terror suspects." And an article reports that "Appeals court rejects Bush attempt to weaken rule on air conditioners."

In The Boston Globe, Lyle Denniston reports that "Court OKs roadblocks, hears disability suit; Also hears arguments on right to sue states for disability access" and "Telecom antitrust lawsuits reined in; Regional phone firms get boost." In other news, "Bush seeks $1.5b to back marriages." An article reports that "Ex-husband sues clinic over birth of daughter." And Jeff Jacoby has an op-ed entitled "Is lawful polygamy next?"

The Washington Times reports that "Court upholds use of random police roadblocks." And an article reports that "Bush renews marriage funds vow."
Posted at 23:30 by Howard Bashman



"The Volokh Conspiracy" cited in a federal district court opinion: You can access the opinion of the U.S. District Court for the District of Massachusetts at this link. The opinion has a wonderful introduction that has me wanting to read the rest of the ruling. The specific post from "The Volokh Conspiracy" to which the opinion cites is accessible here. Thanks to Robert Ambrogi for the pointer.
Posted at 23:00 by Howard Bashman



From apparently within the Sixth Circuit, the other side of the story: The following email arrived today:
As someone with reliable first-hand information about In re Lewis Williams, the Sixth Circuit en banc death penalty case, I believe that you received a rather incomplete account of what occurred from the Sixth Circuit clerk and from the press accounts of Judge Clay's dissent.

Judge Clay argues that the vote of 12 judges--including the votes of Judge Kennedy (appointed by Carter) and Judge Suhrheinrich (appointed by George H.W. Bush)--was illegal under 28 U.S.C. § 46. In order to understand why this is wrong, it is necessary to have a brief review of the process leading up to the stay vote.

Williams filed a petition in district court styled as an action under § 1983, claiming that the combination of drugs used in lethal injections in Ohio constitutes cruel and unusual punishment. The district court determined Williams's petition was really a second or successive habeas petition, and therefore under 28 U.S.C. § 2244(b)(2), the court lacked jurisdiction to hear the claim. The district court therefore issued a transfer order to the Sixth Circuit. The case was heard by Senior Judges Kennedy and Suhrheinrich, and Judge Moore. Judges Kennedy and Suhrheinrich agreed that this was a second or successive habeas petition, denied petitioner’s motions to remand the case to the district court, for injunctive relief, and for stay of execution.

Pursuant to 28 U.S.C. § 46(c), a majority of non-recused active judges then were asked to consider en banc review. (Judges Sutton and Cook were recused because of their positions as former Solicitor General of Ohio and Supreme Court Justice of Ohio, respectively, during the period when this case was argued before state tribunals.) Petitioner claimed to have been seeking "initial" en banc review of the "transfer order" from the district court, however, (1) a "transfer order" is not a final appealable order, so it could not serve as a basis for an initial en banc, and (2) the transfer order was reviewed, as were the merits of the question of whether a § 1983 claim is a second or successive habeas petition, by the randomly selected three-judge panel of this court, and therefore as a matter of law the question could not be an "initial" en banc review, but must be a rehearing en banc.

This point is only important because under 28 U.S.C. § 46(c), senior judges are permitted to join the en banc panel which is reviewing the decision of a panel of which they were members. Therefore, by construing the review as initial en banc review, certain members of the Sixth Circuit attempted to continue its sorry practice of keeping senior judges from hearing cases. In this case, however, they failed, because even members of the dissent stated at the time that this was in fact a review of the panel’s opinion.

The active judges did opt to grant en banc review. At that point, one of the judges requested that the newly empaneled en banc court--which by virtue of 28 U.S.C. § 46(c) included the senior judges--be polled on the question of a stay. The judge was not able to muster a majority of votes for the stay, and therefore it was denied.

Contrary to Adam Liptak's short blurb for the New York Times, the fact that the two senior judges voted did not change the outcome--at least not the ultimate outcome. The stay was also sought from the United States Supreme Court, which denied the stay. Lest someone think that the Supreme Court would have been willing to let a stay stand had the Sixth Circuit issued one, it is worth noting that the Supreme Court had in fact overturned a stay granted on near identical grounds in the 10th Circuit case of In re Tyrone Darks that very day.

It is unfortunate that the Sixth Circuit has become so embroiled over yet another en banc case. I find it particularly unfortunate the Judge Clay has chosen such heated rhetoric to refer to his fellow judges--referring to the vote as illegal. As best as I can tell, the only vote which may have been illegal is the one granting en banc review of the question of whether a § 1983 claim is a second or successive habeas petition. The en banc court is expressly prohibited from reviewing the three-judge panel's decision on that question by 28 U.S.C. § 2244(b)(3)(E).
I thank the sender of this email for taking the time to write. You can access the text of Section 2244(b)(3)(E) at this link, the U.S. Supreme Court's order in the Tyrone Darks case can be viewed here, and an article from The Associated Press about the issue presented in the Tyrone Darks case is accessible here.
Posted at 22:39 by Howard Bashman



Oh oh Guantanamo: You can access online here the amicus brief of legal historians in support of petitioners in Rasul v. Bush and Odah v. United States, the two Guantanamo detainee cases pending on the merits before the U.S. Supreme Court.

Today NPR's "Morning Edition" contained a segment entitled "Military Lawyers Seek Civilian Appeals for Detainees" (Real Player required). You can access that amicus brief at this link.

And finally, BBC News is reporting that "Red Cross to renew Guantanamo call."

(This post's title inspired by the lyrics to Van Morrison's "Domino.")
Posted at 22:20 by Howard Bashman



New developments in "secret case" pending before the U.S. Supreme Court: Tom Goldstein has the details online here, at "SCOTUSblog."
Posted at 22:10 by Howard Bashman



Available online at law.com: A profile is headlined "Point Man: Paul Clement leads the charge in defending the administration's tactics in the war on terror." Shannon P. Duffy reports that "3rd Circuit Orders Release of Inmate." Jason Hoppin reports that "9th Circuit Refreshes Web Trademark Law." Jonathan Groner reports that "D.C. Circuit Hears Yucca Mountain Dispute." In news from the Second Circuit, "Foreign Tax Claims in U.S. Are Dismissed." An article is headlined "Schools' Free Speech Dilemmas; Free speech 'zones' and 'codes' go from campus to court." Jonathan Ringel reports that "Star Athlete Fights 10-Year Prison Term; Georgia high court considers teen sex sentencing disparity." And an article asks, "Judicial Nominating Questions out of Line? Florida Bar to address whether queries by judicial screeners were sexually discriminatory or political or religious litmus tests."
Posted at 22:00 by Howard Bashman



"First Amendment Treats for the Rich; 'The Powerful Have Only Gotten More Powerful'": The Village Voice today posted online this essay by Nat Hentoff.
Posted at 21:57 by Howard Bashman



News from around the Nation pertaining to the U.S. Supreme Court: The Dallas Morning News today reports that "Texas loses dispute over Medicaid; High court says state must abide by '96 order, serve indigent children."

The Lombardian contains an article headlined "'Supreme' decision" that begins, "Lombard Police received encouraging news Tuesday as the Supreme Court ruled that the roadblock Lombard police set up in an attempt to elicit information from motorists following a hit-and-run fatal accident in August of 1997 was constitutional." In somewhat related news, The Daily News of Bowling Green, Ky. reports that "High court ruling could impact local crime fighting efforts."

And The Associated Press reports that "ACLU asks Supreme Court to reject review of VMI prayer case" and "U.S. Supreme Court lets WorldCom suit stay in Alabama."
Posted at 21:55 by Howard Bashman



"Sen. Mellow wants judge suspended; And a state legislator is asking if newly elected Mark Pazuhanich, accused of groping girl, could be impeached." This article appears today in The Allentown (Pa.) Morning Call.
Posted at 21:50 by Howard Bashman



"High court justice sues columnist": The Daily Herald of suburban Chicago contains this report today.
Posted at 21:45 by Howard Bashman



"Obscenity convictions may be on wane, judge suggests": This article appears today in The Cincinnati Post.
Posted at 21:44 by Howard Bashman



"Carmaker sued by kin of Argentine workers; S.F. suit alleges ties to junta's killings": Bob Egelko has this report today in The San Francisco Chronicle. This suit is just one more example of the Alien Tort Claims Act in action.
Posted at 21:42 by Howard Bashman



In news of appellate developments relating to family law: The Associated Press reports that "Fla. Court Blocks Grandparents Visitation." You can access today's ruling of the Supreme Court of Florida at this link.

And from California, David Kravets of The AP reports that "Foster children generally cannot inherit from foster parents." You can access today's ruling of the Supreme Court of California at this link.
Posted at 21:35 by Howard Bashman



"Judge: Vote on Ohio Execution Illegal." The Associated Press provides this report. And Reuters reports that "Appeals Court Judge in Ohio Says Vote Was Improper." While I was away from the computer this afternoon, the chambers of a judge serving on the U.S. Court of Appeals for the Sixth Circuit faxed to me the court's order and the dissent therefrom. Perhaps later tonight I will reprint the text of those items online here; the entire document is only two pages long.
Posted at 21:30 by Howard Bashman



Fourth Circuit holds that Maryland federal trial court hearing civil antitrust claims against Microsoft relied too heavily on earlier findings against Microsoft from the federal government's separate antitrust case litigated in Washington, DC: This decision that the U.S. Court of Appeals for the Fourth Circuit issued today could turn out to represent a significant win for Microsoft. Reuters reports that "U.S. court ruling helps Microsoft in Sun lawsuit."
Posted at 19:55 by Howard Bashman



Life on Johnston Atoll is so boring that horseplay is bound to ensue: Events arising on this remote tropical island that the United States laid claim to under the Guano Islands Act have once again managed to give rise to a Ninth Circuit ruling. Today's ruling involves facts and issues that are much more interesting than those involved in this decision from December 2002, even though that earlier ruling caused me to write two blog posts (here and here) about Johnston Atoll and bird excrement.
Posted at 19:42 by Howard Bashman



Disagreeing with the Third Circuit, the U.S. Court of Appeals for the Ninth Circuit rules that a suit under the federal civil rights act can be used to enforce the Telecommunications Act of 1996: You can access today's ruling from the Ninth Circuit at this link.
Posted at 19:33 by Howard Bashman



The U.S. Senate is scheduled to reopen for business on Tuesday, January 20, 2004: And on the morning of Thursday, January 22, 2004, the Senate Judiciary Committee is scheduled to hold a confirmation hearing for several federal judicial nominees, including Eighth Circuit nominee Raymond W. Gruender. For those who haven't been keeping track, the list of judicial nominee ratings that the American Bar Association compiles has been recently updated.
Posted at 19:11 by Howard Bashman



The Second Amendment doesn't apply to the Nation's capital, federal district judge rules: As I noted here earlier this morning, today's issue of The Washington Post contains an article headlined "Gun Rights Aren't for District, Judge Rules." You can access yesterday's ruling by District Judge Reggie B. Walton of the U.S. District Court for the District of Columbia at this link.
Posted at 18:10 by Howard Bashman



Regular programming to resume this evening: Due to the illness of a loved one, I've spent a good chunk of last night and the midday hours of today in a hospital's emergency room. The good news is that the person in question is doing much better and is no longer in the hospital.
Posted at 17:50 by Howard Bashman



"Ohio: Judge Calls Vote on Execution Improper." Adam Liptak of The New York Times has this newsbrief today further confirming the reports that I presented here and here yesterday. The opinions issued in the matter, however, still do not appear online at the Sixth Circuit's Web site.
Posted at 10:55 by Howard Bashman



Last chance for readers to suggest questions for Ninth Circuit Judge Stephen Reinhardt: I will be sending to Judge Reinhardt later today the questions that will provide the basis for his "20 questions for the appellate judge" interview to be published here in early February 2004. If you have in mind any questions that you'd like to see asked, the time to let me know is now, via email.
Posted at 09:19 by Howard Bashman



In Thursday's newspapers: In The Washington Post, Charles Lane reports that "Court Urged to Require EPA Role in Everglades Shift of Polluted Water." In local news, "Gun Rights Aren't for District, Judge Rules." An article reports that "Court Hears Arguments Over Nuclear Waste Dump; Nevada, Others Oppose Yucca Mountain Project." A front page article reports that "FBI Chief Says Tribunals May Try 9/11 Suspects." In other front page news, "Enron Wizard Admits Conspiracy." In news from Maryland, an article is headlined "Headed for the Top; Anne Arundel Judge Nominated to State's Highest Court." In other local news, "Pedophile Is Slain in Va. Prison; Notorious Case Led To Change in Law." Columnist Marc Fisher has an essay entitled "D.C. Should Let The Sunshine Into Juvenile Court." And U.S. Senator Russ Feingold (D-WI) has a letter to the editor that appears under the heading "Real Perils in Business Record Subpoenas."

The New York Times reports that "Court Hears Arguments on Waste Site in Nevada." In local news, "In Capital Case, New Judge Signals He Has Open Mind." An article reports that "Bush's Push for Marriage Falls Short for Conservatives." In business news, "Ex-Chief Financial Officer of Enron and Wife Plead Guilty." An article is headlined "Out of Repression, Into Jail." In other news, "A Real-Life Debate on Free Expression in a Cyberspace City." An editorial is entitled "A Family Pleads Guilty." And letters to the editor appear under the heading "Pondering a Marriage Proposal."
Posted at 08:10 by Howard Bashman



"Tattoo artist hoping this year bill will pass legalizing his trade": The Associated Press reports here that "A tattoo artist who took his challenge of South Carolina's tattoo ban to the U.S. Supreme Court says he is encouraged a bill to legalize his trade has passed the state Senate."
Posted at 07:47 by Howard Bashman



"U.S. Military Lawyers Challenge Terror Trial Rules": Reuters offers this article. The brief in question can be accessed here. And in somewhat related news, Australian Associated Press has an article headlined "Hicks' trial 'unconstitutional.'"
Posted at 07:44 by Howard Bashman



"Gag sought in judicial fraud case; U.S. attorney cites statements to media": The Biloxi Sun Herald today provides this report.
Posted at 07:37 by Howard Bashman



"Justice Department backs congregations' lawsuit; The Justice Department plans to intervene with more frequency in cases like the Surfside lawsuit, in which minority religions may be the victims of discriminatory or exclusionary local zoning laws." This article appears today in The Miami Herald.
Posted at 07:36 by Howard Bashman



"Inmate's oft-denied release ordered; An appellate panel accused Pa. of 'willful noncompliance' in the case of a convicted killer who was to be paroled in '96." The Philadelphia Inquirer today contains this report on a ruling that the U.S. Court of Appeals for the Third Circuit issued yesterday.
Posted at 07:35 by Howard Bashman



"State told to improve Medicaid for children; Supreme Court says it must keep '96 pledge": The Houston Chronicle contains this report. And The San Antonio Express-News reports that "Texas kids win ruling on health."
Posted at 07:33 by Howard Bashman



"County takes strip-club case to Supreme Court; At issue is a ruling that says the county hasn't proven that strip clubs harm the community." This article appears today in The Sarasota Herald-Tribune.
Posted at 07:07 by Howard Bashman



"Federal judge dismisses lawsuit against OHA": The Honolulu Advertiser today contains an article that begins, "A federal judge yesterday dismissed a case challenging the constitutionality of government programs for Native Hawaiians, ruling that the court should not interfere with the ongoing congressional debate over Hawaiians' political status."
Posted at 07:03 by Howard Bashman



"Tribe battles water district over West Broward pollution pumped into Everglades": This article appears today in The South Florida Sun-Sentinel. The Naples Daily News reports that "Everglades at heart of case involving water transfer." And Knight Ridder Newspapers report that "High court takes on Everglades water dispute."
Posted at 07:00 by Howard Bashman



"The Supreme Court Needs to Rule on 'Enemy Combatants'; The Bush administration's handling of "enemy-combatant" cases has been so lawless as to smack of tyranny. The Supreme Court needs to step in." Stuart Taylor Jr. has this essay in the current issue of National Journal.
Posted at 06:56 by Howard Bashman



View online the videotape of my remarks Monday at the Harvard Law School to the Harvard Journal of Law & Technology: You can view my speech at this link (Real Player required).
Posted at 06:50 by Howard Bashman



U.S. Supreme Court trivia contest winner and correct answer: The winner of this Web log's current U.S. Supreme Court trivia contest, because he was the first reader to email the correct answer to me, is Chris Vergonis. In all, about a handful of readers responded with the correct answer, while many other readers submitted incorrect responses.

The question, for anyone who may have missed it, was as follows:
Almost two years ago, retired Justice Byron R. White died. Since that time, there has been no living former U.S. Supreme Court Justice. The trivia question is as follows: When did the most recent previous period in which there was no living former U.S. Supreme Court Justice begin, on whose death did that period begin, and with whose departure from the Court did that period end. Extra credit may be earned for stating whether the Court's composition changed from the time that period began to the time that period ended.
The correct answer, as supplied by Vergonis, was:
The last time there was no living retired Supreme Court Justice was between the death of retired Justice Stephen Field on April 9, 1899, and the retirement of Justice George Shiras on February 23, 1903. During that time, Justice Horace Gray died on the bench and was replaced by Justice Oliver Wendell Holmes.
You can access a complete list of the individuals who have served or are serving on the U.S. Supreme Court at this link. Two Justices deserve special recognition for the length of time that they survived as former Members of the Court. Justice James F. Byrnes left the Court in October 1942 and lived until April 1972. And Justice Arthur J. Goldberg left the Court in July 1965 and lived until January 1990.

Thanks much to everyone who took part in this trivia competition. And a very special thanks, of course, to the self-proclaimed source of this brain-teaser.
Posted at 02:25 by Howard Bashman



Wednesday, January 14, 2004
We have a winner: I'm pleased to announce that we have a winner of the U.S. Supreme Court trivia contest. More details will follow later, including the winner's name and the correct answer.
Posted at 21:20 by Howard Bashman



It's an honor just to be nominated: Thanks to the blog "Wampum" for including "How Appealing" among its "2003 Koufax Nominations: Best Expert Blog." Of course, I'm still hoping to win the contest for "Best Overall Australian Blog," another distinction for which "How Appealing" was recently nominated. When the video archive of my recent speech to the Harvard Journal of Law & Technology is made available online, it will become clear just how subtle my Australian accent happens to be.
Posted at 19:57 by Howard Bashman



More details concerning why the Sixth Circuit still isn't one big happy family: In response to my earlier post on this subject, a law clerk serving on the U.S. Court of Appeals for the Sixth Circuit emails:
Some background: The petitioner filed a 1983 suit challenging the lethal injection. He filed a notice of appeal and then moved for an initial en banc review. The active judges voted 6-4 to grant an initial en banc hearing (two judges had recused themselves from the case). My understanding of the rule is that senior judges may only sit on the en banc court if they are on the panel in the case that is being reviewed--but there was no panel in this case, because it was voted to be initially en banced. (The rule is also that regardless of whether a senior judge sat on the panel, only the active judges get to vote on whether a case should be heard en banc.) The purported basis for including the two senior judges was that they had sat on the panel that had considered a prior habeas petition from the petitioner. Whether or not they were properly counted, the two senior judge votes made it 6-6 on the stay.
And a very trustworthy reporter for a major newspaper emails:
In a dissent in the en banc decision, Judge Clay charges that Judges Kennedy and Suhrheinrich participated in an illegal vote under 28 USC 46(c), though they served on the panel in question. His point is that the statute allows senior judges to participate in en banc decisions where the full court is "reviewing a decision of the panel." Judge Clay says that a stay motion is not such review. The additional votes were outcome determinative. "The vote was illegal," Judge Clay writes.
Thanks to both of these individuals for their emails.
Posted at 19:30 by Howard Bashman



Curses! Foiled again: Who could resist the news from last week that "Olympia man's house sitter coats apartment in foil." Or, as The Olympian reported, "Friends foil Olympia man's home; Downtown resident returns from trip to find belongings silver-coated." Today "The Black Table" explains "How to wrap your friend's apartment in tin foil: a love story."
Posted at 19:25 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "Detainees' Lawyers Challenge Supreme Court."

In news from Philadelphia, "Appeals Court Orders Elderly Inmate Freed." You can access today's ruling of the U.S. Court of Appeals for the Third Circuit at this link.

And in other news, "Two Jurors Sentenced for Bribes in 1996"; "Judge Refuses to Dismiss Peterson Charges"; "Mont. Man Convicted for Yelling at Teens"; and "Plant Owners to Pay $18M in Waste Case."
Posted at 19:05 by Howard Bashman



Today's Ten Commandments news: From Georgia, The Atlanta Journal-Constitution reports that "GOP plans resolution supporting display of Ten Commandments." The Gwinnett Daily Post reports that "Commandments bill enters legislature." And The Athens Banner-Herald reports that "Cost concerns aired over Barrow's battle for Commandments."

From Alabama, The Associated Press reports that "Alabama Court Rejects Moore's Challenge."

And in news pertaining to Ohio, The Ledger Independent reports that "Court rules against Adams County schools in Ten Commandments case."
Posted at 17:23 by Howard Bashman



The Justice Stevens bobblehead doll has arrived! It looks great. The actual doll seems to have a bit more of a smile than this image suggests. In any event, to my eye the Justice Stevens bobblehead doll is a more accurate depiction of the person it purports to portray than was the Chief Justice Rehnquist bobblehead doll.
Posted at 17:17 by Howard Bashman



Second Circuit resolves long-pending appeal in suit by the European Community against Big Tobacco: You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 16:58 by Howard Bashman



Jan Crawford Greenburg is reporting: In today's issue of The Chicago Tribune, she has articles headlined "Justices weigh right of disabled in suing states; Supreme Court hears arguments" and "Justices expand roadblock scope; Ruling overturns Illinois high court."
Posted at 16:35 by Howard Bashman



Under new management, but still not one big happy family: The U.S. Court of Appeals for the Sixth Circuit may have acquired a new chief judge recently, but that apparently has not brought an end to controversy. Sources are advising that, as partially confirmed in this report that The Associated Press issued today, the death row inmate whom Ohio executed this morning achieved the grant of rehearing en banc on his argument that the use of a particular lethal injection chemical would be cruel and unusual punishment but then lost by an equally divided en banc court his request for a stay of execution.

Supposedly a dissenting opinion from the denial of a stay questioned whether two senior circuit judges who voted to deny the stay were lawfully authorized to participate in that vote. If anyone wishes to alert me to where that opinion can be accessed online or to forward a copy to me via email, that would be most appreciated.
Posted at 15:50 by Howard Bashman



I summarize the proposed amendments to the Federal Rules of Appellate Procedure so you won't have to: The time within which the public is invited to comment on pending proposed amendments to the Federal Rules of Appellate Procedure will expire on February 16, 2004.

The January 2004 installment of my monthly appellate column, published on Monday of this week in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, summarizes the proposed changes. Indeed, careful readers may even perceive several attempts at humor.

You can access this month's column online at this link. The proposed amendments themselves can be accessed online at this link. And you can submit comments on the new rules over the Internet using a form accessible via this link.
Posted at 15:35 by Howard Bashman



The Warsaw Convention does not allow damages for the loss of a "refreshing, memorable vacation": Presumably damages for a banal and completely forgettable vacation also would be unavailable. See this somewhat humorous ruling that the U.S. Court of Appeals for the Fifth Circuit issued today.
Posted at 15:29 by Howard Bashman



Get your Guantanamo detainees U.S. Supreme Court merits brief here: The Brief for Petitioners in Rasul v. Bush can be accessed online here. The question presented is "Whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba?"
Posted at 15:26 by Howard Bashman



Who says slip and fall cases don't belong in federal court? Someone who slipped on a package that the U.S. Postal Service left outside of her home sustained serious injuries and sued under the Federal Tort Claims Act. Today a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit resolved whether the so-called postal matter exception to the FTCA shields the government from liability in this situation.

The exception preserves sovereign immunity for "any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." As the court explains in today's opinion, "The issue that we must resolve is whether 'negligent transmission' refers only to negligence that results in loss of, or damage to, the postal material itself, or whether 'negligent transmission' also encompasses the negligent placement of postal material that causes injury to someone or something other than the mail."
Posted at 15:07 by Howard Bashman



"Coverup girl; Kuwait's answer to the Barbie doll wears more modest clothes, just a hint of makeup and sports a less curvaceous figure than her American cousin." This article appeared Monday in The St. Petersburg Times. Could this spawn another chapter of Barbie-related appellate litigation in the Ninth Circuit? Only time will tell.
Posted at 14:57 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Supreme Court Hears Pollution Cases." And in other news, "Court Begins Hearing Nev. Nuke Waste Case."
Posted at 14:34 by Howard Bashman



"Butler driver told to carry photo of victim lying in his coffin": This article appears today in The Pittsburgh Post-Gazette.
Posted at 14:04 by Howard Bashman



Playboy Playmates on appeal: And in the Ninth Circuit, no less. Today a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued this decision reinstating trademark infringement and dilution claims asserted by Playboy Enterprises, Inc. against two Internet search engine operators.
Posted at 13:31 by Howard Bashman



Cruel and unusual failure to use seatbelts when transporting prisoners: A unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit issued this very short, per curiam decision today. Presumably, in light of today's ruling, a prisoner who alleged he sustained injuries because he was unable to free himself promptly, due to the seatbelt's being fastened, from a motor vehicle that had been involved in a collision would not be able to state an actionable claim.
Posted at 12:20 by Howard Bashman



"If there ever was a clear case of racial profiling, it is this case." So begins the dissenting opinion of Senior Circuit Judge Donald P. Lay from a decision that a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit issued today in an automobile traffic stop case. Judge Lay ends his dissent by expressing the hope that the case goes en banc.
Posted at 12:02 by Howard Bashman



"Court Won't Let States Out of Mass Suits": The Associated Press provides this report.
Posted at 12:01 by Howard Bashman



Vast majority of law offices rejoice on learning that the term "LawOffices" cannot be trademarked: A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued this decision today.
Posted at 11:55 by Howard Bashman



Access online the amicus brief filed in the Third Circuit by 54 Harvard Law School professors challenging the Pentagon's understanding of the Solomon Amendment: As I noted a bit earlier this morning, The Harvard Crimson today contains an article headlined "Faculty File Brief Against Pentagon." You can now access here the brief itself, which was filed on Monday by Walter Dellinger and two of his colleagues from O'Melveny & Myers LLP. Additionally, a press release on the law school's Web site is headlined "Faculty Submit Brief on Military Recruiting."

Also available online, at this link, is the amicus brief of law school career service professionals.

Much more background information on this case, including the district court's opinion that is at issue on appeal, can be accessed via this link.

Update: The Third Circuit amicus brief of The American Association of University Professors can be accessed at this link.
Posted at 11:30 by Howard Bashman



Access online today's two U.S. Supreme Court opinions: The Supreme Court of the United States today issued two opinions in argued cases.

1. Justice Ruth Bader Ginsburg issued the opinion on behalf of a unanimous Court in Kontrick v. Ryan, No. 02-819. The case resolves whether the deadline for objecting to a debtor's discharge in a Chapter 7 bankruptcy case is "jurisdictional" so that late objections must be ignored by the bankruptcy court whether or not the debtor challenges their timeliness. The Court ruled that the deadline for objections to a debtor's discharge in a Chapter 7 case is not jurisdictional and, thus, late objections can be considered in the discretion of the bankruptcy court. In so ruling, the Court affirmed the decision of the U.S. Court of Appeals for the Seventh Circuit. The oral argument transcript in this case can be accessed here.

2. Justice Anthony M. Kennedy delivered the opinion on behalf of a unanimous Court in Frew v. Hawkins, No. 02-628. The ruling holds that a federal court's enforcement against a State of a consent decree entered into under federal statutory law does not violate the Eleventh Amendment to the U.S. Constitution. The basis for the Court's holding is not waiver (as many had expected it might be) but, rather, the always enjoyable (and dare I say venerable) doctrine of Ex parte Young. In so ruling, the Court reversed the decision below of the U.S. Court of Appeals for the Fifth Circuit. The oral argument transcript in this case can be accessed here.
Posted at 10:56 by Howard Bashman



"Moore move to unseat special court rejected": This article appears today in The Birmingham News. [Update: Link fixed.]
Posted at 06:33 by Howard Bashman



"Proposed legislation would ban sodomy in only public place": The Roanoke Times provides this report today.
Posted at 06:32 by Howard Bashman



"Attorneys prepare oral arguments before U.S. Supreme Court in ongoing legal battle of mass murderer George Banks": This article appears today in The Citizen's Voice.
Posted at 06:31 by Howard Bashman



"High Court Backs Verizon": Newsday provides this report.
Posted at 06:30 by Howard Bashman



The Harvard Crimson is reporting: Today's newspaper contains articles headlined "Faculty File Brief Against Pentagon" and "HLS Profs File Brief in Support of Gay Marriage Ruling."
Posted at 06:29 by Howard Bashman



"U.S. Supreme Court hears arguments in disabilities lawsuit": Stephen Henderson of Knight Ridder Newspapers provides this report.
Posted at 06:27 by Howard Bashman



In Wednesday's newspapers: In The New York Times, Linda Greenhouse reports that "Dispute Heard on States' Duties Under Disabilities Act" and "Justices Uphold Roadblocks as a Way to Find Witnesses." An article reports that "Water Pump Case Tests Federal Law." In other news, "Study Disputes View of Costly Surge in Class-Action Suits." An article reports that "Court Voids a Bush Move on Energy." In business news, "Couple Set to Plead Guilty in Enron Case." An article reports that "Bush Plans $1.5 Billion Drive for Promotion of Marriage." In other news, "Jury Selection Begins in Trial of Ex-Nets Star in Gun Death." An article reports that "Ohio Cleric Arrested; Terror Link Is Cited." In real estate-related news, "Law Firms Led Last Year in Acquiring Office Space." And an editorial is entitled "Keeping Detentions Secret."

In The Washington Post, Charles Lane reports that "Case Pits Disability Act Against States' Rights; Paraplegic Seeks to Sue Over Courthouse Access" and also has an article headlined "Wider Latitude for Roadblocks; Court Says Fourth Amendment Allows 'Informational' Stops." In somewhat related news, "Supreme Court Limits Telephone Suits; Antitrust Actions Based Solely on 1996 Law Not Allowed." In other news, "Administration's Action on Energy Efficiency Rejected." An article reports that "Fastows' Plea Bargains Back on Track; Deals Expected in Enron Case; Husband, Wife Would Both See Prison Time." In other news, "FCC Chairman Seeks Reversal on Profanity." A front page article reports that "Muslim Groups' IRS Files Sought; Hill Panel Probing Alleged Terror Ties." In local news, "Va. Crime Panel Backs Dual Strategy on Sodomy Law; Legislature Would Ease Ban but Leave Old Statute on Books"; "Proposal Would Open Cases In District's Juvenile Court"; and "Man Who Hit Lesbians Gets 90 Days." And columnist Courtland Milloy has an essay entitled "A Harsh Stance On Juvenile Crime Makes Harsh Kids."
Posted at 05:50 by Howard Bashman



Tuesday, January 13, 2004
Attention Green Bag subscribers: I am reliably advised that The Green Bag has just received delivery of the Justice John Paul Stevens bobblehead dolls and will soon be shipping them out to those who were subscribers as of the previously announced record date. I'll be sure to let you know when mine arrives.

law.com's Tony Mauro wrote of the Justice Stevens doll back in October 2003 in an article you can access here (second item). Will the Justice Stevens doll be auctioned at eBay the way the Chief Justice William H. Rehnquist bobblehead doll was? And, if so, which Justice will emerge as worth less?
Posted at 23:50 by Howard Bashman



Elsewhere in Tuesday's newspapers: In The Boston Globe, Lyle Denniston reports that "Supreme Court rejects detainee case; Lets stand decision against releasing names of those held" and "Court refuses Aimster case; Plea was 1st appeal of Net music ruling to reach justices." In same-sex marriage related news, "Delay eyed on marriage amendment; Senate leader awaits SJC view on civil unions"; "Organizations file flood of briefs on the last day"; and "For many, chance to be heard." And in business news, "Novell to aid Linux users if copyright claims arise."

In The Los Angeles Times, David G. Savage reports that "High Court Refuses to Take Up Case on Post-Sept. 11 Arrests; Bush administration kept secret the names of Middle Eastern men detained in a roundup." In somewhat related news, "High Court Gives Fax Firm a Busy Signal; Justices decline to rule on Fax.com's claim that a ban on unsolicited transmissions violates its free-speech rights." From the celebrities on trial file, "Jackson Hearing Shut to Media; The judge bans all cameras in the courtroom during the singer's arraignment on child-molestation charges set for Friday" and "Court Filings Seek Closure." An article reports that "Bill Would Expand Access Rights; Voters will decide whether to amend the state Constitution to reverse the burden of proof for sealing governmental records." In news from Modesto, "College Probes Allegations of Survey Fraud; Officials will focus on whether students faked data in a report used in the Scott Peterson murder case." And in other news from California, "Suit Alleging Condom Was Found in Customer's Chowder Is Settled" and "10-Year Sentence for Threat Suspect."

The Washington Times reports that "Justices refuse challenge on secrecy over detainees." In other news, "3 plead guilty to SUV attacks." Bruce Fein has an op-ed entitled "History justifies war powers." And Marc A. Levin has an op-ed entitled "Ruling justly."
Posted at 23:20 by Howard Bashman



"Killer taunts victim's family on Internet": What's next -- blogging from death row? The Associated Press provides this report.
Posted at 22:48 by Howard Bashman



"Dish out prisoners' 'last meal' details": This essay by columnist Jacquielynn Floyd appears today in The Dallas Morning News.
Posted at 22:46 by Howard Bashman



"Lord of the Rings: Return of the Domain Name." Reuters provides this report.
Posted at 22:40 by Howard Bashman



Access the audio of the Seventh Circuit en banc oral argument in the college newspaper-free press case: This case was reargued en banc last Thursday, and you can download an MPG audio file of the oral argument via this link (right click to save to disk, then play). It's must listening for those who would claim that there's nothing more difficult than arguing an appeal in the U.S. Supreme Court.
Posted at 22:32 by Howard Bashman



"Court says Commandments monuments don't belong at 4 Adams County schools": This article appears today in The Cleveland Plain Dealer.
Posted at 22:20 by Howard Bashman



"Bill would let kids opt out of reciting Pledge": The Associated Press provides this report from Colorado. And in other Pledge-related news, "Newdow Prepares For Arguments Over Pledge Of Allegiance."
Posted at 22:19 by Howard Bashman



"Supreme Court to decide if disabled can sue states; Congress' power at issue in case": Jan Crawford Greenburg had this preview in this morning's issue of The Chicago Tribune.
Posted at 22:17 by Howard Bashman



"OHA position on status of Hawaiians may be swaying judge": This article appears today in The Honolulu Advertiser.
Posted at 22:14 by Howard Bashman



Available online at law.com: Tony Mauro reports that "High Court Weighs State Liability Over Lack of Access for Disabled; Justices also hand down rulings in cases involving police roadblocks and telecommunications antitrust liability." An article reports that "Contingency Payment Considered Part of Taxpayer's Gross Income; 2nd Circuit decision lines up with majority of appeals courts." And in news from New Jersey, "Penal Disenfranchisement Law Called Biased; Minorities make up more than 62 percent of those denied the vote, suit charges" and "Law School Probed on Reverse Discrimination Claims; Minority mentoring program and law-firm job fair are subjects of complaint."
Posted at 22:00 by Howard Bashman



"Questioning pointed in Lambert's new appeal": Convicted murder Lisa Michelle Lambert's controversial case was back before the U.S. Court of Appeals for the Third Circuit for oral argument yesterday. Today's issue of The Lancaster New Era contains this report. And The Associated Press provides this coverage of yesterday's oral argument.
Posted at 21:00 by Howard Bashman



"High Court Hears Arguments in Wheelchair Access Case, Rules on Roadblocks": Hear Jan Crawford Greenburg of The Chicago Tribune report on today's news of note from the U.S. Supreme Court, from tonight's broadcast of NewsHour with Jim Lehrer. To listen, click here (Real Player required).
Posted at 20:30 by Howard Bashman



"Off-Ramp: Crawling up stairs at a courthouse near you." Dahlia Lithwick has this report online at Slate about a case argued today at the U.S. Supreme Court.
Posted at 20:08 by Howard Bashman



Available online from National Public Radio (Real Player required for all audio segments): Tonight's edition of "All Things Considered" included segments entitled "Supreme Court Hears Disabled Access Case" (with Nina Totenberg) and "Texas A&M Ends Legacy Program."

"Morning Edition" today included a segment entitled "Supreme Court Case Tests Rights for Disabled" (with Nina Totenberg).

And yesterday's edition of "All Things Considered" included segments entitled "Day in Court for Americans with Disabilities" (without Nina Totenberg) and "High Court Sides with U.S. on Detainee Secrecy" (with Nina Totenberg).
Posted at 19:11 by Howard Bashman



The Associated Press is reporting: An article reports that "Court Overturns Air Conditioner Standard." You can access here today's ruling of the U.S. Court of Appeals for the Second Circuit. And in other news, "Court Won't Suspend Yellowstone Decision."
Posted at 19:00 by Howard Bashman



Readers reply to the current U.S. Supreme Court trivia contest: Various answers have arrived to the U.S. Supreme Court trivia contest that is currently underway. I won't reveal the correct answer until tomorrow (when I will finally have a chance to determine for myself what the correct answer is).
Posted at 17:39 by Howard Bashman



"Military Lawyers Question Tribunal Rules; In Supreme Court Brief, Detainees' Defenders Say Constitution Requires Civilian Review": As I noted here early yesterday morning, this article appeared in yesterday's issue of The Washington Post. The amicus brief itself, by Law Professor Neal Katyal for the Military Attorneys Assigned to the Defense in the Pentagon's Office of Military Commissions in the Guantanamo case of Odah v. United States, can be accessed via this link (or directly at this link, but this direct link may only work for the very near future).
Posted at 17:01 by Howard Bashman



Got litigation? Yesterday the U.S. Court of Appeals for the Third Circuit heard oral argument in an appeal challenging the constitutionality of the federal government's "got milk?" ad campaign, The Associated Press reports here.
Posted at 16:44 by Howard Bashman



Fired PATCO air traffic controllers later rehired by the FAA waited too long to sue claiming that they should have been rehired at their prior, pre-termination grade-levels and corresponding salary ranges: Today a unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued this decision.
Posted at 16:40 by Howard Bashman



"Who Would Win a Tournament of Judges?" A preliminary draft of an article bearing this title by Law Professors Stephen Choi and Mitu Gulati is available online here. The article's abstract begins, "The impetus for the Article was frustration with the current judicial appointments process. Both sides claim that their candidates are the 'most meritorious' and yet there is seldom any real discussion regarding merit (or even what should constitute merit)." Thanks to the "Greedy Clerks Board" for the pointer. (And Law Professor Larry Solum has also noted the paper at his "Legal Theory Blog.")
Posted at 16:20 by Howard Bashman



Must a taxpayer who receives a recovery for lost wages, and who agreed to pay his attorney on a contingent-fee basis, include the contingent fee in his gross income? Today the Second Circuit issued an opinion siding with the majority of federal appellate courts on this issue, over which a circuit split exists.
Posted at 15:57 by Howard Bashman



High Court Rules Roadblocks Don't Violate Privacy: Charles Lane of The Washington Post provides this news update.
Posted at 15:50 by Howard Bashman



Correction noted: The D.C. Circuit today corrected an error that one of my readers noted in this earlier post.
Posted at 15:11 by Howard Bashman



U.S. Supreme Court trivia, by way of the Harvard Law School: Not only did I have a most enjoyable visit to Cambridge, but at last night's dinner with students from the Harvard Journal of Law and Technology someone proposed a quite good U.S. Supreme Court trivia question.

Almost two years ago, retired Justice Byron R. White died. Since that time, there has been no living retired U.S. Supreme Court Justice. The trivia question is as follows: When did the most recent previous period in which there was no living retired U.S. Supreme Court Justice begin, on whose death did that period begin, and with whose retirement did that period end. Extra credit may be earned for stating whether the Court's composition changed from the time that period began to the time that period ended. As always, trivia question entries are to be submitted via email. The prize is no more and no less than earning a mention as trivia question winner here at "How Appealing."

Update: Should any clarification be needed, for purposes of this trivia question, the term "retired U.S. Supreme Court Justice" shall have the same meaning as the term "former U.S. Supreme Court Justice."
Posted at 15:00 by Howard Bashman



Today's U.S. Supreme Court opinions: The Supreme Court of the United States issued opinions today in three argued cases.

1. Justice Stephen G. Breyer issued the opinion of the Court in Illinois v. Lidster, No. 02-1060, upholding the constitutionality of a police checkpoint stop of motorists. The ruling was unanimous in part and 6-3 in part. Justice John Paul Stevens wrote an opinion concurring in part and dissenting in part, in which Justices David H. Souter and Ruth Bader Ginsburg joined. The oral argument transcript can be accessed here.

2. Justice Antonin Scalia issued the opinion of the Court in Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, No. 02-682. The Court unanimously reversed a decision of the U.S. Court of Appeals for the Second Circuit that would have allowed Trinko to pursue an antitrust claim against the phone company. The Court was unanimous in its result, although the Court divided 6-3 over the reasoning. Justice Stevens issued an opinion concurring in the judgment, in which Justices Souter and Clarence Thomas joined. The oral argument transcript can be accessed here.

3. Last but not least, Justice Sandra Day O'Connor issued the opinion of the Court in SEC v. Edwards, No. 02-1196. The Court held that an investment scheme promising a fixed rate of return can be an "investment contract" and thus a "security" subject to the federal securities law. Accordingly, the Court reversed the contrary ruling of the U.S. Court of Appeals for the Eleventh Circuit. The oral argument transcript can be accessed here.

In news coverage of today's developments at the Court, Gina Holland of The Associated Press reports that "Court OKs Roadblocks to Hunt Criminals" and "Court Puts Restrictions on Phone Suits." And Anne Gearan reports that "Top Court Weighs Protections for Disabled." The blog "quasi in rem" has photos of the protest outside of the Court that accompanied this morning's oral argument in Tennessee v. Lane.

Reuters, meanwhile, reports that "Supreme Court OKs Roadblocks for Police Information" and "Supreme Court Rules for Verizon in Antitrust Case."
Posted at 14:22 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "Top Court Reviews Protections for Disabled." And in other news, "Fla. Everglades Fight Reaches Top Court"; "Court-Martial for Translator to Open"; and "Lawyer Sentenced for Charity Schemes."
Posted at 07:10 by Howard Bashman



"Tennessee tests Disabilities Act before justices": This article appears today in The Tennessean.
Posted at 07:04 by Howard Bashman



On the agenda: The U.S. Supreme Court could issue one or more opinions in argued cases at 10 a.m. this morning. Because I'll be traveling back to Philadelphia around that time, any such decisions likely won't be noted here until mid-afternoon. If one or more opinions do issue today, they will be available via this link once the Court posts them online.
Posted at 07:02 by Howard Bashman



In news from Harvard: Given that I'm still at Harvard, the least I can do is provide some news from here. Monday's issue of The Harvard Crimson reported that "Students File Brief Against Pentagon; Law School gay rights group joins suit challenging military recruiting on campus."
Posted at 06:57 by Howard Bashman



In news from Detroit: The Detroit News today contains articles headlined "Affirmative action backers, foes clash; Group wants vote on preferences"; "DaimlerChrysler wins on withheld notes"; and "New trial sought in terrorism case; Drug dealer is told to answer questions about key witness."

And in today's issue of The Detroit Free Press: "Petitions started for affirmative action ban; If group succeeds, issue will go before voters in November"; "After U-M decision, plaintiff rejoins battle"; "To sign or not to sign"; "DCX notes weren't hidden, court says; Papers mislaid, officer rules; case can resume"; and "Note could aid 3 convicted in terrorism trial; Star witness for U.S. lied, jail mate says."
Posted at 06:55 by Howard Bashman



"Japanese manga ruled obscene": BBC News provides this report.
Posted at 06:49 by Howard Bashman



Hooters litigation: The St. Petersburg Times today contains an article headlined "Co-founder says Hooters owes him; A federal lawsuit says the chain violated an agreement to fork over a percentage of its gross sales. The company says, 'This is news to us.'"
Posted at 06:47 by Howard Bashman



"District loses commandments court battle": This article appears today in The Cincinnati Enquirer. The U.S. Court of Appeals for the Sixth Circuit issued this ruling as an "unpublished" opinion yesterday; regrettably, that court does not currently make its unpublished opinions freely available on the Internet.

Meanwhile, in Ten Commandments news from Alabama, The Associated Press reports that "Judge moves lawsuit by Moore supporters to Montgomery."
Posted at 06:44 by Howard Bashman



In Tuesday's newspapers: In The New York Times, Linda Greenhouse reports that "Justices Allow Policy of Silence on 9/11 Detainees." In local news, "A Judge's Struggle to Avoid Imposing a Penalty He Hated." An article reports that "Texas A&M Ban on 'Legacies' Fuels Debate on Admissions." In business news, "Some Rental Cars are Keeping Tabs on the Drivers" and "Changes at KPMG After Criticism of Its Tax Shelters." And an editorial is entitled "Partnership Rights for Gays."

In The Washington Post, Charles Lane reports that "Secrecy Allowed On 9/11 Detention; High Court Declines To Hear Appeal." An article reports that "Military Lawyers Question Tribunal Rules; In Supreme Court Brief, Detainees' Defenders Say Constitution Requires Civilian Review." In other news, "GOP Urges Wider Ban on 'Soft Money'; FEC Asked to Rule on '527' Organizations That Raise Unlimited Funds." And an editorial is entitled "Mr. Hamdi and the Court."
Posted at 06:05 by Howard Bashman



"The Power of One": Monday's broadcast of the PBS program "NewsHour with Jim Lehrer" contained a segment described as follows: "The current U.S. Supreme Court is increasingly being called the 'O'Connor Court' because of Justice Sandra Day O'Connor's tie-breaking swing votes. Legal experts discuss the first woman justice's pivotal role on the nation's top court." Those who participated in the segment were Douglas Kmiec of Pepperdine University Law School; Nancy Maveety, professor of political science at Tulane University, author of "Sandra Day O'Connor: Strategist on the Supreme Court"; Kathleen Sullivan, dean of Stanford Law School; and John Yoo of Boalt Hall School of Law at the University of California at Berkeley.

You can read a transcript of the segment here; the audio is available here (Real Player required).
Posted at 01:00 by Howard Bashman



"Tobacco Co. Wants $15M Judgment Tossed": The Associated Press provides this report.
Posted at 00:55 by Howard Bashman



"Panel condemns U.S. for 2002 Texas execution; AG's office says Beazley decision 'irrelevant'": The Houston Chronicle contains this article in Tuesday's edition.
Posted at 00:54 by Howard Bashman



"U.S. Supreme Court to hear arguments in water case": This article appears today in The Naples Daily News.
Posted at 00:50 by Howard Bashman



"Court considers reach of US disability law; Justices take up the case of a man in a wheelchair who refused to appear in a second-floor courtroom in Tennessee." Warren Richey has this article in Tuesday's issue of The Christian Science Monitor. And CNN.com reports that "Court hears wheelchair access case."
Posted at 00:40 by Howard Bashman



Monday, January 12, 2004
My visit to Harvard Law School: Let me thank my gracious hosts from the Harvard Journal of Law & Technology for inviting me to give a speech tonight and for taking me out to a very nice dinner thereafter.

Before speaking at JOLT tonight, I had a quite enjoyable meeting this afternoon with a group of students from Harvard Law School's Federalist Society chapter. Patrick Lewis has this post at the "Ex Parte" blog, and they've also posted a rather grainy photo commemorating my visit.

At slightly after 6:30 p.m., my talk at JOLT got underway. A reader based in Wisconsin who viewed the live Webcast emailed to say that "I watched on cable modem using RealPlayer v10 and it was amazing, as clear as TV." After the question and answer session, I enjoyed dinner with a JOLT-sponsored group that included Jeremy Blachman and Sasha Volokh.

Sometime soon an archived video of my speech tonight will be accessible via this link. There's at least one person who can't wait to see it -- me.
Posted at 23:56 by Howard Bashman



Elsewhere in Monday's newspapers: USA Today reports that "Final say awaited on terror-war policy; High court could decide soon on challenge over detainees." And Paul Beaudet and David Wertheimer have an op-ed entitled "Marriage strengthens bond of same-sex couples, too."

The Boston Globe reports that "Catholics urged to fight gay marriage; Bishop, Bork try to mobilize lawyers." An article reports that "Waste site foes go to court; Nevada to challenge nuclear dump plan for Yucca Mountain." And in business news, "Critics worry Stewart trial won't bring major change; Lawmakers scrutinize interaction of FDA, SEC."

In The Los Angeles Times, David G. Savage reports that "Justices to Weigh Presidential Powers; Five cases on issues from detaining terror suspects to White House secrecy will test Bush's reach." An article is headlined "New Case Against Executions; With the Green River killer escaping death, Washington defense lawyers and capital punishment opponents hope for legal leverage." An article reports that "2nd Hearing Sought on Strip Club Logo; Caltrans fears motorists along Interstate 215 may think it's affiliated with a topless club in Colton. An attorney for the owners calls that idea 'silly.'" In local news, "Bible's Lessons Inspired Initiative; The O.C. attorney behind a measure that would put Scripture in literature classes says studying it sharpened his thinking." In other local news, "Needle Exchange Debate Is Rekindled; Although legal, only 25% of counties offer programs. Advocates fear increase in diseases." And an editorial is entitled "Stealing Judges' Power."
Posted at 23:20 by Howard Bashman



"Judge to rule soon on Hawaiian programs": The Honolulu Advertiser today provides a news update that begins, "A federal judge today said she would rule within a week on a motion to dismiss a controversial case challenging the constitutionality of programs benefiting only Hawaiians."
Posted at 23:18 by Howard Bashman



Does Title III of the Americans with Disabilities Act apply to foreign-flagged cruise ships? In an opinion issued today, a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit answered "no" to that question. In so ruling, the Fifth Circuit expressly disagreed with a contrary ruling (as amended) of the U.S. Court of Appeals for the Eleventh Circuit.
Posted at 23:03 by Howard Bashman



What to do about same-sex marriage in Massachusetts? Today was the deadline for interested persons to file amicus briefs in the Supreme Judicial Court advising what the court should do next with regard to its recent gay marriage ruling. Chris Geidner links here to a bunch of the briefs filed today.
Posted at 22:52 by Howard Bashman



Available online from law.com: Tony Mauro has an article headlined "Gunning for Royalties." An article is headlined "Not Taken on Faith; Florida judicial screeners shock hopefuls with questions on religion and whether women can balance work and home." Jonathan Ringel reports that "Georgia Justices Nix Murder Suspect's Statements; Police may need to rethink timing of 'Miranda' warnings, expert says." And an article reports that "N.J. Legislature Passes Civil Union Bill."
Posted at 22:41 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Pledge of Allegiance Case Set for March." The article begins, "The Supreme Court's most-watched case of the year will be argued March 24, when a California father tries to convince the justices that the regular morning public school salute to the American flag is unconstitutional because of the reference to God."

In other news, "Attorney Challenges Utah's Polygamy Ban"; "Publisher Guilty of Being Saddam's Agent"; "Student Pleads Innocent to Terror Charge"; and "Calif. Judge OKs Sonar Whale Testing."
Posted at 22:25 by Howard Bashman



"Mass. Groups Seek Delay on Gay Marriage": The Associated Press reports here that "Conservative groups asked the state's high court Monday to delay the landmark ruling allowing gay marriage, saying residents and legislators should be able to vote on the issue."
Posted at 15:29 by Howard Bashman



"Pa. Supreme Court strikes down law banning elder-care work because of old crimes": The Pittsburgh Post-Gazette today contains this report.
Posted at 15:22 by Howard Bashman



"New Pa. judge still faces legal battle over outcome; Opponents say disabled voters weren't counted." This article appears today in The Philadelphia Inquirer, which describes the vote as "the closest statewide election in the modern history of Pennsylvania politics."
Posted at 15:20 by Howard Bashman



"New Jersey grants benefits to same-sex partners": The Associated Press reports here that "New Jersey became the fifth state to recognize same-sex partnerships Monday, but activists said they will not stop the fight until openly gay couples can legally marry."
Posted at 15:18 by Howard Bashman



The Atlanta Journal-Constitution is reporting: Available online are articles headlined "Lawmaker takes 10 Commandments to the Capitol"; "State Supreme Court erases woman's drug conviction"; and "Club's policy called anti-gay; Domestic partners don't qualify for perks given to spouses at Druid Hills Golf Club."
Posted at 14:55 by Howard Bashman



Today's U.S. Supreme Court order list can be accessed online: The official list is available at this link.

In early press coverage of today's developments at the Court, Anne Gearan of The Associated Press reports that "Court Nixes Appeal Over 9-11 Detentions." And Gina Holland reports that "Supreme Court Avoids Comic Book Fight" and "Court Rejects Case of Ramsey Housekeeper."

Reuters, meanwhile, is reporting that "Supreme Court Allows Secrecy for 9/11 Detainees" and "Views Sought in Movie Theater Wheelchair Case."
Posted at 12:44 by Howard Bashman



On the agenda: The Supreme Court of the United States will take the bench at 10 a.m. today for the very first time in 2004. The Court is scheduled to issue an Order List at that time, and soon thereafter the list should be accessible via this link. Because the Court issued grants of review this past Friday, it is unlikely that this morning's Order List will contain additional grants.
Posted at 06:24 by Howard Bashman



I'll be delivering a speech at the Harvard Law School this evening: The Harvard Journal of Law & Technology has graciously invited me to be its first on-campus speaker of 2004. I'll be speaking about -- what else -- this Web log and also about how technology is influencing the practice of appellate litigation. If you cannot make it to Harvard in person, JOLT has arranged for the talk to be shown live over the Internet. You can access the link at this page, which also contains an email address that allows you to submit questions in advance of and even during my talk.
Posted at 06:20 by Howard Bashman



Commemorating the first year of "20 questions for the appellate judge": I've been invited to speak at the Harvard Law School this evening, and as a result I'll be spending a part of the day in transit. The good news is that a laptop computer will be along for the ride, so I won't be entirely out of touch.

Over the past year, this blog's readership has continued to grow and grow. Many of today's readers may not have been here when I originally published earlier installments of the monthly "20 questions for the appellate judge" feature. To celebrate the feature's one year anniversary, I am going to provide in the very next paragraph links to each of the interviews of appellate judges that I have conducted here over the past year.

The feature launched in February 2003 with my interview of Fifth Circuit Judge Jerry E. Smith. Ninth Circuit Judge Diarmuid F. O'Scannlain was the March 2003 interviewee. In April, I interviewed Justice Kay B. Cobb of the Supreme Court of Mississippi. In May, it was back to the Ninth Circuit for my interview of Alaska-based Circuit Judge Andrew J. Kleinfeld. In June, Ninth Circuit Judge Michael Daly Hawkins was my interviewee. In July, Senior Third Circuit Judge Ruggero J. Aldisert answered my questions. In August, Eleventh Circuit Judge Gerald Bard Tjoflat was the interviewee. Circuit Judge William Curtis Bryson of the U.S. Court of Appeals for the Federal Circuit was September's interviewee. In October, it was back to the Eleventh Circuit for my interview of Circuit Judge Stanley F. Birch, Jr. In November 2003, Senior Eighth Circuit Judge Richard S. Arnold was the interviewee. Seventh Circuit Judge Richard A. Posner graciously agreed to be December 2003's interviewee. And the feature got off to a great start in 2004 when Tenth Circuit Chief Judge Deanell Reece Tacha participated as this month's interviewee.

Looking ahead, Ninth Circuit Judge Stephen Reinhardt will be my February 2004 interviewee. (I'm still accepting proposed questions for Judge Reinhardt. You may submit them to me via email.) First Circuit Judge Bruce M. Selya will be the March 2004 interviewee. Circuit Judge Boyce F. Martin, Jr., whose tenure as Chief Judge of the U.S. Court of Appeals for the Sixth Circuit recently concluded, will be the April 2004 interviewee. Judge Richard B. Teitelman of the Supreme Court of Missouri will be the May 2004 interviewee. And Associate Justice William W. Bedsworth of California's Fourth District Court of Appeal will be the June 2004 interviewee. Thus, there's reason to hope that the "20 questions" feature will be as interesting in the months ahead as it has been in the past.
Posted at 06:15 by Howard Bashman



"Big eye on the little guy": The Financial Times, in its Arts & Weekend section, contained a lengthy article by Patti Waldmeir that begins: "The church of the Constitution is the most pervasive religion in America. And behind it is a secret sovereign: the US Supreme Court. Unique in history - and almost uniquely misunderstood in its own time - the Supreme Court is arguably the most powerful branch of American government. In the past six months alone, the justices have done more to influence the role of race, sex and politics in American life than the rest of the government combined. They even elected the current president."
Posted at 06:10 by Howard Bashman



"Angry middle-aged man: Is Larry David funnier than everyone else, or just more annoying?" This essay appears in the January 19, 2004 issue of The New Yorker.
Posted at 06:05 by Howard Bashman



In Monday's newspapers: The New York Times contains an article headlined "Two Fathers, With One Happy to Stay at Home." A profile of Presidential candidate John Edwards is headlined "A Journey From a Mill Town Ends With a Run for President." And an article reports that "Fund Planned to Defend Users of Linux."

The Christian Science Monitor contains an article headlined "Long road to Enron convictions: Plea bargain by financial officer could break case. Will it happen?"

Finally for now, The Washington Post contains a front page article headlined "Sowing the Seeds of GOP Domination; Conservative Norquist Cultivates Grass Roots Beyond the Beltway."
Posted at 05:44 by Howard Bashman



"Boys' Trials Highlight Competency Issue": Monday's edition of The Tampa Tribune contains this article.
Posted at 00:02 by Howard Bashman



Sunday, January 11, 2004
"State law adapting to new kinds of families; Ruling imminent on man claiming 'equitable adoption'": This article will appear in Monday's issue of The San Francisco Chronicle.
Posted at 23:59 by Howard Bashman



Elsewhere in Sunday's newspapers: The Magazine section of The Boston Globe contains an article headlined "From Ballistic to Holistic: Angry and depressed by win-at-any-cost legal work, a growing number of lawyers are seeking peace of mind -- for their clients and themselves -- by bringing spiritual alternatives to the practice of law."

The Los Angeles Times reports that "No Victims Found in Genital Mutilation Case; Authorities say evidence shows that couple conspired to violate law barring the procedure." In other news, "Race for City Attorney Grabs the Spotlight; With San Diego facing scandals and lawsuits, all eyes are on the formerly low-profile post." An article reports that "Convict Took Up the Pen While Serving in One." An article from The Associated Press is headlined "Victim's Spirit Invoked to Solve Case; Indian activist was shot in 1975; the first arrest came 27 years later. But one officer believes he heard her weeping when her body was found." Robert Bones has an op-ed entitled "He May Be Responsible but He's Not Guilty." And letters to the editor appear under the heading "State's Prison System Is Hard on the Economy."

Finally for now, The Washington Times contains a lengthy article headlined "Strangers in a strange land."
Posted at 22:30 by Howard Bashman



Available online at law.com: Jonathan Groner has an article headlined "Access to Justice" that previews an important case -- involving the Eleventh Amendment and Title II of the Americans with Disabilities Act -- that will be argued this week at the U.S. Supreme Court. In other news, "Filer of Bogus Florida Bar Complaint Can Be Prosecuted." And an article reports that "Georgia Bill Aims to Limit Settlement Secrets; Proposal would allow cases affecting health, safety to be made public."
Posted at 22:20 by Howard Bashman



"Legal theory and the voting patterns of federal judges": Pejman Yousefzadeh reopens an argument that is unlikely ever to be decisively won.
Posted at 22:15 by Howard Bashman



In the January 19, 2004 issue of Time magazine: You will find items headlined "The Detainees' New Friends" and "Martha Jockeys For A Jury."
Posted at 21:01 by Howard Bashman



"Supreme Court to Review Presidential Powers": David G. Savage will have this article in Monday's issue of The Los Angeles Times.
Posted at 20:50 by Howard Bashman



"Shocking case ends in stealth; Man linked to judge's death leaves prison, disappears": The Dallas Morning News today contains this article. Thanks to "The Curmudgeonly Clerk" for the pointer.
Posted at 19:52 by Howard Bashman



"The principal question in this antitrust suit is whether at-shelf coupon dispensers are an economic market." I'm of the view that any antitrust opinion by Seventh Circuit Judge Frank H. Easterbrook is worth a read. Should you agree, be sure to see this decision that he issued on behalf of a unanimous three-judge panel this past Friday. At a minimum, the opinion is useful for furnishing one more case cite for the proposition "Garbage in, garbage out."
Posted at 19:35 by Howard Bashman



A can't-lose proposition: I just learned that "How Appealing" has been nominated as a candidate for "Best Overall Australian Blog." Go vote!
Posted at 17:28 by Howard Bashman



From the January 19, 2004 issue of Newsweek: Michael Isikoff has an article headlined "September 11: Will Terror Panel's Report Be an Election Issue? A new political battle is brewing over the federal panel investigating the 9/11 terror attacks." Isikoff also has an item headlined "Dean: Better Call Your Lawyer." In business-related coverage, "Martha's Makeover: As her day in court approaches, she's working overtime to show she's just like us. But the Feds aim to prove her slips in the ImClone stock scandal were criminal acts." And an article is headlined "At Harvard, Skeptics Rule; For a brief moment on campus, Iraq stirred the students. But sadly, pessimism has regained its lead over passion here."
Posted at 16:32 by Howard Bashman



That's what I was talking about: Back on Monday, December 29, 2003, I mentioned here that I had as of that date begun to link to articles appearing in The New York Times in a manner that would continue to enable you, my readers, to have free access to each article's entire text for the indefinite future. Now that some time has passed, I can demonstrate more clearly what I meant.

Here's just a single example. On December 29th, The Times published an article headlined "I.R.S. Unit Will Focus on Lawyers and Accountants." In the past, I would have provided this link to the article, which would have enabled you to access the full text of the article on its date of publication and several days thereafter. Today, however, the original link will take you directly to this quite different link, which provides you with only the article's first 50 words, together with the opportunity to purchase the article's full text for $2.95 (with various discounts available for purchases in bulk).

Instead, however, on December 29th I provided you with this alternate link to the article, and using the alternate link the article's full text today remains available to you free of charge and will so remain into the indefinite future, through a service that The New York Times has agreed to provide to the blogging community. Although several big-name blogs recently mentioned news of this feature, the vast majority of blogs are not yet taking advantage of it.

To summarize, since December 29, 2003, "How Appealing" is not just the place where you can continue to access on a daily basis a wide variety of timely and interesting law-related links. It's also the place where you will find still-working links to the full text of law-related New York Times articles, saving you lots of aggravation and money.
Posted at 15:30 by Howard Bashman



"Nevada Nuclear Waste Case Set for Court": The Associated Press provides this report.
Posted at 15:17 by Howard Bashman



Will Michigan ban state-sponsored racial preferences? The Detroit News reports today that "Race ballot campaign will start Monday; Affirmative action foes set goal of 400,000 signatures to put issue to a statewide vote." And columnist Pete Waldmeir today has an essay entitled "Battle lines drawn for affirmative action drive." The Web site of the Michigan Civil Rights Initiative can be accessed here.
Posted at 15:10 by Howard Bashman



"Reproductive rights are for men too": Columnist Robyn E. Blumner has this essay today in The St. Petersburg Times.
Posted at 15:03 by Howard Bashman



"Judges spurn Bush on guardian for fetus; A Daytona Beach appeals court decision, together with a strongly worded dissent, could trigger an emotional debate in the Florida Legislature over 'fetal rights.'" The Miami Herald today contains an article that begins, "Declaring a fetus is not a 'person' under Florida law, a Daytona Beach appeals court said Friday it would be improper to appoint a guardian for an unborn child. The decision rejected a bid by Gov. Jeb Bush to extend rights to the unborn."

You can access Friday's ruling of Florida's Fifth District Court of Appeal at this link.
Posted at 15:00 by Howard Bashman



"Local couple push for equal rights": This article appears today in The La Crosse Tribune.
Posted at 14:57 by Howard Bashman



"British MPs intervene over detainees": Monday's edition of The Sydney Morning Herald contains this article.
Posted at 14:50 by Howard Bashman



"Fighting For Access Rights; Tennessee Case Pits Disabilities Act Against 11th Amendment": This article appears today in The Hartford Courant.
Posted at 14:45 by Howard Bashman



"Everglades water case goes before Supreme Court": The Palm Beach Post today contains this preview of a case to be argued Wednesday before the Supreme Court of the United States. And in related coverage, The Miami Herald today reports that "Water ruling is expected to produce ripple effect."
Posted at 14:44 by Howard Bashman



The Philadelphia Inquirer is reporting: Today's newspaper contains articles headlined "Same-sex couples see N.J. as a haven"; "GOP's right has Specter in its sights; Rep. Pat Toomey's challenge invigorates conservatives"; and "'You've got evidence'; E-mails sent as casually as water-cooler chatter never truly die. They can come back to haunt the senders in court cases."
Posted at 14:40 by Howard Bashman



Bob Egelko is reporting: In yesterday's issue of The San Francisco Chronicle, Egelko had articles headlined "Death Row clemency bid is Schwarzenegger's first"; "Cal Poly sued over admissions policies"; and "U.S. can't keep Unabom papers; Return them to Kaczynski or sell."
Posted at 14:35 by Howard Bashman



In news from Hawaii: The Associated Press reports that "Judge consolidates Maui church suits." The Honolulu Advertiser today reports that "Ruling due on motion to reject challenge to Hawaiian benefits." And The Advertiser also contains an article headlined "Hawai'i scandal revealed racial prejudices, passions."
Posted at 14:31 by Howard Bashman



In Sunday's newspapers: The New York Times reports that "Killer's Lawyers Seek to Raise Standard of Proof for Death Penalty." In news from Florida, "No Guardian for a Fetus, Court Rules." Adam Liptak has a Week in Review piece headlined "Hate Speech and the American Way." Also in that section is an article headlined "Imagining Life Without Illegal Immigrants." In local news, "Judges Order City to Release More Records About 9/11"; "After Two Years of Sparring, Trial of Former Nets Star Is Scheduled to Begin"; "For Bruce's Prosecutor, 4-Letter Word Is Duty"; and "His Trade Secret? Or a Company's Property?" In business news, "The H.M.O. Approach to Choosing a Lawyer"; "An Open-and-Shut Case? Well, Not So Fast"; and "Where's the Beef? Not on Beef.com." And Adam Cohen has an "Editorial Observer" essay entitled "Can Disabled People Be Forced to Crawl Up the Courthouse Steps?"

The Washington Post reports that "Corporate Scandals Yield Few Plea Deals; Top Executives Take Best Shot in Court." In other news, "5 Journalists Won't Name Sources; Wen Ho Lee Is Suing U.S. Over Leaks From Spy Probe." And Michael Schrage has an op-ed entitled "We Can Trap More Crooks With a Net Full of Honey."
Posted at 08:50 by Howard Bashman



Saturday, January 10, 2004
Elsewhere in Saturday's newspapers: The Washington Times reports that "Muhammad judge puts off sentencing." And in other news, "Maryland abortion foes try new rules tactic."

The Boston Globe reports that "Lawyers seek to overturn Sampson's death sentence; Say federal statute is unconstitutional."

The Los Angeles Times reports that "Pentagon Labels Hussein a POW, Conferring Him Special Rights." In local news, "Man, Woman Charged in Genital Mutilation Case." In other local news, "Security Tight for Jackson Hearing; Officials are preparing for everything from unruly crowds to a terrorist attack at the singer's molestation arraignment Friday." And Tim Rutten's "Regarding Media" column is entitled "Balancing rights in Peterson trial."
Posted at 23:35 by Howard Bashman



"Judges, legislators and gay marriage -- Tangled Mass. separation of powers": Columnist Barbara Anderson has this op-ed today in The Providence Journal. She begins her essay by asking, "SO WHAT HAPPENS if the Massachusetts Supreme Judicial Court tells the legislature to do something, and the legislature says it doesn't wanna?"
Posted at 23:34 by Howard Bashman



"Bagel maker toasted; Redmond merchant sues over ad-sign restriction": The Seattle Post-Intelligencer today provides this article. And The Seattle Times reports that "Attorney for Redmond bagel shop calls sign ban unconstitutional."
Posted at 23:30 by Howard Bashman



"Democrats challenge redistricting ruling; Supreme Court intervention sought": David Pasztor of The Austin American-Statesman today has this report.
Posted at 23:28 by Howard Bashman



At Texas A&M, legacy admissions become a thing of the past: The Houston Chronicle today reports that "A&M abolishes legacy program." And The San Antonio Express-News reports that "Some Aggies marooned."
Posted at 23:25 by Howard Bashman



"Pryor asks for denial of Moore request": This article appears today in The Birmingham News. And The Montgomery Advertiser today contains an editorial entitled "Moore never made to choose."
Posted at 23:22 by Howard Bashman



News from Mississippi: The Clarion-Ledger reports today that "New high court justice vows 'to do what is right.'" And The Biloxi Sun Herald reports today that "Dickinson investiture seen as a return to dignity; New state high court justice takes office in Jackson ceremony."
Posted at 23:18 by Howard Bashman



"Attorney general, rights groups joust over disabilities act": This article appears today in The Houston Chronicle. And The Austin American-Statesman reports today that "Disability act lawsuit sparks dissent; Some legislators say they'll ask attorney general to change his position on the law."
Posted at 22:35 by Howard Bashman



Available online from BBC News: Articles headlined "UK appeal backs terror suspects; An appeal on behalf of terror suspects held in Guantanamo Bay by the US is to be made by about 135 peers and MPs" and "Guantanamo condemned two years on."
Posted at 22:30 by Howard Bashman



The St. Louis Post-Dispatch is reporting: You can access articles headlined "Comic book publisher and former Blues enforcer may clash again" and "While Congress debated bill, lawyers rushed to file in Madison County."
Posted at 19:10 by Howard Bashman



The Associated Press is reporting: Available online are articles headlined "Florida Appeals Court Rules on Fetuses"; "Cheney Would Support Gay Marriage Ban"; "Firefighters' 9-11 Tapes Ordered Released"; and "Couple Charged in Female Circumcision Plan."
Posted at 16:15 by Howard Bashman



In Saturday's newspapers: The Washington Post reports that "Sniper Sentencings Scheduled for Same Day." In other news, "Officer's Conviction Overturned in Anthrax Prank." An article reports that "Judges' Power in Md. Left Intact; Court to Review Sentence Reduction." In news from the war on terror, "Pentagon Calls Hussein a POW; Declaration Formally Binds U.S. to Geneva Conventions"; "British Detainees' Extradition Possible; U.S. Negotiating Terms With London"; "Libya to Pay $170 Million In Bombing of Airliner in '89"; and "U.S. Indicts Saudi Student; Internet Allegedly Used to Aid Terrorist Groups in Jihad." An article reports that "Plea Offer Expires in Enron Case; Judge Orders Lea Fastow to Trial After Deadline Passes for Accepting Deal." In other news, "Couple, Tied to Putin Foes, Fights Deportation." And Ellen Goodman has an op-ed entitled "Oops! Help for Same-Sex Unions."

The New York Times contains an article headlined "Students' Data on Web, and N.Y.U. on Defensive." In other news, "$8 Million Award to Widow Punishes Tobacco Company." In news from Houston, "Plea Talks in Enron Case Said to Unravel." In international news, "Libya Will Pay $170 Million in Bombing of French Airliner." An article reports that "Nader Says a Run Would Benefit Democrats." In local news, "Man Pleads Not Guilty in Plot to Sell Missiles for Terror Use." An article reports that "Banker Linked to Jailed Russian Fighting to Stay in U.S." And Lee Rosenbaum has an op-ed entitled "Destroying the Museum to Save It."

Finally for now, online at OpinionJournal, William McGurn has an essay entitled "Roe, Roe, Roe Their Boats: When it comes to abortion, Democrats hate democracy."
Posted at 15:30 by Howard Bashman



Lamo pleads guilty to hacking The New York Times: Wired News provides this report.
Posted at 14:48 by Howard Bashman



"Same-sex marriage issue delayed; Justice minister seeks cross-country talks. Ottawa keen to push back court case: Source." The Toronto Star today contains this report.
Posted at 13:18 by Howard Bashman



"Suit challenges Ohio's lethal injection drugs; U.S. court asked to stop two executions until case settled": This article appears today in The Dayton Daily News.
Posted at 13:16 by Howard Bashman



In news from Pennsylvania: The Philadelphia Inquirer reports today that "Teens' execution won't be sought; Prosecutors declined to say why they changed their strategy about the trial of two defendants in last year's Fishtown murder." The Delaware County Times yesterday contained an article headlined "Officials: Library sex books no Delco issue." And The Philadelphia Daily News reported yesterday that "Steak shop's name stirs controversy; Woman wants Chink's changed, saying it's a slur to Asians; owner says no way."
Posted at 12:50 by Howard Bashman



Plan B: The Richmond Times-Dispatch reports this morning that "JMU restores controversial pill's sales; Board reversed a decision to ban 'morning after' pill." And in other coverage of this news, The Washington Post today reports that "JMU Ends Ban on Morning-After Pills; Trustees' Reversal Allows Health Center to Dispense the Contraception."
Posted at 11:15 by Howard Bashman



"Students Say They Faked Peterson Survey": The Associated Press reports here this morning that "A survey a judge cited in his decision to move Scott Peterson's capital murder trial out of Modesto contained made-up information, criminal justice students who conducted the survey told a newspaper." The newspaper in question, The Modesto Bee, contains articles today headlined "Prosecution seeks Peterson pollsters" and "Falsified Peterson survey not a surprise to some." The newspaper also offers this chart displaying poll results and this PDF file listing the questions supposedly used in the poll.
Posted at 11:06 by Howard Bashman



"High court asked to put ruling aside, reject remap": This article appears today in The Houston Chronicle.
Posted at 09:19 by Howard Bashman



Press coverage of U.S. Supreme Court's grant of review yesterday in case involving alleged enemy combatant, and U.S. citizen, Yaser Esam Hamdi: In The New York Times, Linda Greenhouse reports that "Justices to Hear Case of Citizen Held as Enemy." In The Washington Post, Charles Lane reports that "High Court to Weigh Detention of Citizens; 'Enemy Combatant' Case Is Accepted." In The Los Angeles Times, David G. Savage reports that "High Court to Rule on Citizens Held in Terror War; Justices will decide whether the president can detain American suspects without charge." In The Chicago Tribune, Jan Crawford Greenburg reports that "Court takes terror case; Justices face clash with White House over 'combatants.'" In The Boston Globe, Lyle Denniston reports that "High court accepts case on detention of US citizens." And The Washington Times reports that "Court to hear 'enemy' appeal."

In other coverage, Stephen Henderson of Knight Ridder Newspapers reports that "Supreme Court to hear case of U.S.-born detainee." The Cox News Service reports that "Supreme Court to hear appeal of citizen held as combatant; Man captured in Afghanistan is now in naval brig." And The Richmond Times-Dispatch reports that "U.S. Supreme Court to hear Hamdi case; Dispute challenges right to hold terror suspects indefinitely."
Posted at 09:10 by Howard Bashman



"Monterey takes up 'Pledge'; Newdow presents case to drop 'under God' in mock trial": This article appears in today's issue of The Monterey County Herald.
Posted at 09:02 by Howard Bashman



"6th Circuit slowest of appeals courts; Judicial confirmation holdups blamed": The Associated Press provides this report.
Posted at 09:00 by Howard Bashman



Friday, January 09, 2004
Elsewhere in Friday's newspapers: The Boston Globe reports that "Gay marriage debate splits Democrats" and "Opposition leader says he 'misspoke' on poll findings." In terror-related news, "Suspect held in LA bomb plan; Former resident of Quebec remains at Guantanamo" and "Hearing continued for Saudi passenger; Accused of carrying fireworks on plane." An article reports that "Conn. legislators meet on possible Rowland impeachment." And in other news, "US keeps limits on implants."

The Los Angeles Times reports that "Lawsuit Accuses University of Admissions Bias; Three Latinos who were rejected say Cal Poly San Luis Obispo gives undue weight to SAT scores and to applicants from its geographic area." In other news, "San Diego Ends Fight for Scouts; Council won't appeal a judge's ruling that park lease with the group was unconstitutional." An article reports that "State Prison Investigators Sworn Silent; Agents must agree to confidentiality rules or face possible sanctions. Senators opening hearings on Corrections fear intimidation." In other news, "Convicted Rapist Claims He Is Broke; Andrew Luster files for bankruptcy as two victims try to collect $40 million." In news from Texas, "Plea Deals With Fastows in Jeopardy; Wife of Enron's ex-CFO is offered less favorable sentencing terms by a judge. Her husband's deal is linked to hers." And a letter to the editor appears under the heading "Legislating Against Judicial Arrogance."

The Washington Times reports that "Next trials for snipers put on hold." An article warns "Sleepyheads beware; bedbugs rule the night." And Richard W. Rahn has an op-ed entitled "Markets and monopolies."
Posted at 23:47 by Howard Bashman



"Supreme Court to hear case of U.S.-born detainee": Stephen Henderson of Knight Ridder Newspapers provides this report.
Posted at 23:01 by Howard Bashman



Today's Ten Commandments news: From Alabama, The Montgomery Advertiser reports that "Moore claims rights denied." The Birmingham News reports that "Lawyers say court violated Moore's rights." And The Associated Press reports that "Pryor defends naming replacement Supreme Court for Moore appeal."

Meanwhile, in news from Utah, The Salt Lake Tribune reports that "Summum wants parcel for pyramid."
Posted at 22:44 by Howard Bashman



"Supreme Court to Review Enemy Combatant Case": On tonight's edition of NPR's "All Things Considered," Nina Totenberg took part in this discussion of today's big news.
Posted at 22:33 by Howard Bashman



"Justices to Hear Case of Citizen Held as Enemy": Linda Greenhouse will have this article in Saturday's edition of The New York Times.
Posted at 22:26 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Federal judges leaving the bench for greener pastures"; "Reviews Clear Top Interior Lawyer"; "Texas Redistricting Opponents Appeal Map"; "Guantanamo Translator Asks for Release"; and "Gay Marriage Foe Misspoke of Poll Results."
Posted at 21:16 by Howard Bashman



"High Court to Hear U.S.-Born Detainee's Case": The Washington Post offers this report.
Posted at 19:10 by Howard Bashman



"Wal-Mart Settles Insurance Policies Suit": The Associated Press provides this report. The article explains: "Wal-Mart appealed to the 5th U.S. Circuit Court of Appeals in New Orleans, but lawyers for the company and the family members reached a settlement hours before the court issued its ruling on Monday, upholding the victory by relatives and saying that Wal-Mart 'unlawfully took funds that, under Texas law, rightfully belonged' to a dead worker's estate." You can access the ruling that the Fifth Circuit issued on Monday at this link.
Posted at 19:06 by Howard Bashman



Gone huntin': A reader emails to ask whether this might give rise to a need to recuse in connection with this. Well, I've never held myself out to be the expert on questions of this nature. If any readers have special insight they'd like to share, my email address is readily at hand.
Posted at 18:59 by Howard Bashman



Access online briefs and other documents relating to accused enemy combatant Yaser Esam Hamdi's case, which the U.S. Supreme Court agreed to hear on the merits today: FindLaw has an impressive collection of stuff available at this link.

And also available online at FindLaw, Law Professor Vikram David Amar has an essay entitled "Previewing The Rest of the Current Supreme Court Term: The 'Pledge of Allegiance' Case."
Posted at 17:32 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Supreme Court to Settle Tattoo-Ink Case"; "Pentagon Lawyers Say Saddam Is a POW"; "N.Y. Jury Awards $20M to Widow of Smoker"; "Student Charged With Supporting Terrorism"; and "Woman Objects to Carrying Victim's Photo."
Posted at 17:00 by Howard Bashman



Teens who blog: This upcoming Sunday's issue of The New York Times Magazine will contain an article headlined "My So-Called Blog." Fortunately for all concerned, teens who blog tend not to focus extensively on the subject of appellate litigation.
Posted at 15:55 by Howard Bashman



"No-Citation Rules Under Siege: A Battlefield Report and Analysis." Posted online today at SSRN is this very interesting article by Law Professor Stephen R. Barnett of the University of California, Berkeley - School of Law (Boalt Hall). The article is being published in The Journal of Appellate Practice and Process.
Posted at 14:43 by Howard Bashman



"Court to Hear Tenn. Disabled Man's Case": The Associated Press provides this preview of a case to be argued at the U.S. Supreme Court on Tuesday.
Posted at 14:24 by Howard Bashman



"Debate over Kaczynski property: A magistrate judge says prosecutors should sell his writings and photos for restitution or give them to the University of Michigan" The Sacramento Bee reports here today that "The government should be forced to sell the writings and personal photographs of Unabomber Theodore Kaczynski and give the proceeds to the victims of his mayhem, or return the material to him for donation to the University of Michigan, a federal magistrate judge said Thursday in Sacramento."
Posted at 14:21 by Howard Bashman



The U.S. Supreme Court granted review in a total of five cases today: Today's order list can be accessed here.

In other coverage of today's grants, Gina Holland of The AP reports that "Supreme Court to Consider Pollution Case."
Posted at 14:10 by Howard Bashman



Unanimous three-judge Seventh Circuit panel rejects prison inmates' challenge to DNA collection for Wisconsin DNA data bank: Circuit Judge Terence T. Evans is the author of today's ruling.
Posted at 14:09 by Howard Bashman



BREAKING NEWS -- U.S. Supreme Court grants review in case involving alleged enemy combatant, and U.S. citizen, Yaser Esam Hamdi: Anne Gearan of The Associated Press provides this report. And Reuters reports that "Supreme Court to Decide Enemy Combatant's Detention."

You can access the three-judge panel ruling of the U.S. Court of Appeals for the Fourth Circuit in the Hamdi case at this link. Later, the Fourth Circuit issued these opinions concurring in and dissenting from the denial of rehearing en banc.

The U.S. Supreme Court's docket entries in this case can be accessed here. The federal government had asked the Court to deny Hamdi's petition for writ of certiorari. You can access the federal government's brief in opposition here and its supplemental brief in opposition filed earlier this week here.
Posted at 13:40 by Howard Bashman



"Anthrax-Hoax Officers' Case Thrown Out": The Associated Press provides this report. You can access today's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 13:29 by Howard Bashman



"Goodridge Case Has Alternative to Gay Marriage": This op-ed by Harvard Law Professor Mary Ann Glendon and Amherst College Professor Hadley Arkes appeared yesterday in The Boston Herald.
Posted at 13:01 by Howard Bashman



And in news from Michigan: The Detroit News today contains articles headlined "Diocese targets Granholm on abortion; Maida leads drive to overturn veto of partial birth ban" and "Abortion fight is not new to groups; Catholics join Right to Life for third time since 1987."
Posted at 12:32 by Howard Bashman



"Burke directs priests to withhold sacraments to Catholic lawmakers who support abortion, euthanasia": This article appears in today's issue of The La Crosse Tribune.
Posted at 11:42 by Howard Bashman



Greek to me: Well, technically, it's Italian. Would anyone care to make heads or tails out of this? Apparently the final paragraph mentions this blog.
Posted at 11:11 by Howard Bashman



Any false moves and the couch gets it: The Associated Press reports that "Ex-Legislator Holds Furniture Hostage."
Posted at 11:07 by Howard Bashman



The D.C. Circuit's parade of Whitewater fee claimants continues: If memory serves, none of these fee claimants has achieved what could properly be characterized as a stunning success. Today, however, Susan McDougal achieves on her fee application what might properly be termed a stunning failure.
Posted at 10:42 by Howard Bashman



Speaking of beer: While the combination of free speech and alcoholic beverages may sometimes produce regrettable results, that's not always the case. Booth Newspapers report today from Lansing that "Neon beer signs that hang in windows in bars across the country, but have been banned in Michigan for decades, are now legal under a ruling by Attorney General Mike Cox." You can access yesterday's opinion in this matter by the Attorney General of Michigan at this link.
Posted at 09:58 by Howard Bashman



"Court: OK to shield boy from dad’s gay lifestyle." This article appears today in The Tennessean. And Tuesday's decision of the Tennessee Court of Appeals can be accessed at this link. Chris Geidner of the "en banc" blog states that he will have more to say about this ruling.
Posted at 09:41 by Howard Bashman



"Probe in killing of prosecutor Luna stalls; 5 weeks after his death, leads go cold, evidence fails to yield suspect": This article appears in today's issue of The Baltimore Sun. And this past Sunday, on the actual one month anniversary of the prosecutor's death, The Lancaster Sunday News published an article headlined "Very quietly, investigation continues in Luna killing."
Posted at 06:57 by Howard Bashman



In Friday's newspapers: The New York Times reports that "Bias Issue Faces Judge in Monsanto Case." An article reports that "New Jersey to Recognize Gay Couples." In news from Texas, "Judge Moves to Allow Plea by Wife of Ex-Enron Officer." In local news, "Serving Up Humble Pie at Rowland's Kaffeeklatsches" and "City Settles Deputy Warden's Harassment Suit." In business news, "Battle in an Omaha Charitable Group Reflects Issues Raised in Corporate Scandals." An editorial is entitled "Putting the Sex Trade on Notice." Columnist Paul Krugman has an op-ed entitled "Enron and the System." And letters to the editor appear under the heading "God, Country and the Politicians."

The Washington Post reports that "Plea Deals For Enron's Fastows Not Reached Yet; Bargain May Depend On Wife's Sentence." In local news, "Md. Woman Gets Five Years for Enslavement." And letters to the editor appear under the heading "Terrorism and Team Names."

The Christian Science Monitor contains an article headlined "Gay marriage: Clergy gear for amendment battle." And an editorial is entitled "Gerrymuddling in Texas."
Posted at 06:30 by Howard Bashman



Thursday, January 08, 2004
Elsewhere in Thursday's newspapers: The Boston Globe reports that "N.Y. man fights illegal-voting conviction; Political activist seeks vindication as ruling nears." In other news, Lyle Denniston has an article headlined "President may play fund-raiser role, FEC rules." An article reports that "Gay marriage foes push referendum; Coalition formed to fight SJC ruling." In local news, "DA eyes plea deal in bullpen brawl" and "Officer charged with harassing judge in Lynnfield." And an editorial is entitled "Sinned-against synagogue."

The Washington Times reports that "Ban on religious gifts appealed." And Peter Parisi has an op-ed entitled "Taming judicial activism." (Blogger Skip Oliva responds to Parisi's op-ed by saying, in essence, "thanks but no thanks.")

The Los Angeles Times reports that "Federal Charge of $25,280 to Fulfil Records Request Angers Activist; Officials, accused of trying to stonewall Freedom of Information Act inquiries, say work is too great to waive charges." In other news, "Rumors of Early Prisoner Releases Squelched; Schwarzenegger's new corrections chief instead outlines a plan to save millions of dollars a year by reforming the state's parole system." An article reports that "Leak of Jackson Memo Criticized; Welfare officials probe report's release after a complaint by the lawyer for the alleged victim." And an article reports that "Prop. 13 Appeal Arguments Made; Ruling Due Soon; Taxpayers could get refunds totaling $10 billion if an Orange County suit prevails. At issue is value 'recapture' after a market slump."
Posted at 23:43 by Howard Bashman



"Juvenile judge may face neglect charges; DA will decide after probe is over": The Atlanta Journal-Constitution reports here today that "A Fulton County Juvenile Court judge could face child neglect charges in the very courthouse she works in for leaving her 4-year-old daughter home alone at night." Hmm, might another New Testament quote appear relevant to some? So it seems.
Posted at 23:15 by Howard Bashman



Potential good news for drunk drivers in Florida: The Florida Times-Union today contains an article headlined "Ruling imperils statewide DUI cases; Man can withdraw plea because the judge didn't explain the dangers of self-representation."
Posted at 23:14 by Howard Bashman



For those who like their librarians smart and wealthy: Today's issue of The Atlanta Journal-Constitution reports that "Fulton finally settles suit by 8 librarians."
Posted at 23:11 by Howard Bashman



Available online at law.com: In news pertaining to the Supreme Court of California, "Court Likely to Reverse Ruling on Fetal Murder." In news from Georgia, "Magazine Ordered to Reveal Its Sources." An article reports that "N.Y. Conduct Commission Probes New Charges Against Judge; Justice allegedly solicited defense funds from lawyers in his court." And in other news, "Pistol-Packing Judge Trips Metal Detector; Incident at federal building in Hartford, Conn., results in fine."

Meanwhile, a reader emails to advise that "How Appealing" is mentioned on page 17 of the January 2004 issue of The American Lawyer. Does anyone else wish to confirm this news (I haven't yet seen this month's issue).
Posted at 23:05 by Howard Bashman



"Britons being held in Guantanamo Bay could soon be free": The Independent (UK) provides this report. The Telegraph (UK) reports that "Seven Britons in Guantanamo could be freed." The Guardian (UK) contains an article headlined "Deal for Camp Delta Britons; Final hurdle to return of seven of the nine Guantanamo detainees removed as US softens its stance." And you can access online a "List of Britons Held at Guantanamo Bay."

In other news from Guantanamo, The AP reports that "Guantanamo prisoners told of capture of Saddam."
Posted at 22:25 by Howard Bashman



"State: Oystermen did not prove any damages." The Associated Press provides this report from New Orleans.
Posted at 22:23 by Howard Bashman



"Operator Of Satiric Web Site Investigated For Criminal Libel; ACLU Sues For Return Of Mink's Computers": Denver's ABC 7 provides this report. And The AP reports that "Student who spoofed professor online sues city after police confiscate computer, threaten criminal charges."
Posted at 22:10 by Howard Bashman



The Associated Press is reporting: An article headlined "Court Allows N.C. Execution to Proceed" begins, "The Supreme Court cleared the way late Thursday for the execution of a North Carolina inmate, rejecting arguments that the state's form of lethal injection amounts to cruel and unusual punishment." In other news, "Nevada Man's Murder Conviction Overturned"; "Lawyers Submit Plea in Wrestling Death"; "U.S. Changes Tack in Alleged Terror Case"; "N.J. Senate OKs Bill for Same-Sex Couples"; and "Englishman in Internet Sex Case Sentenced."
Posted at 22:05 by Howard Bashman



"Trial Shows Flaws in Pennsylvania Internet Porn Law": Reuters tonight provides this report.
Posted at 20:51 by Howard Bashman



Thinking bad thoughts: The free press-college newspaper case that I mentioned here earlier today was not the only case in which the U.S. Court of Appeals for the Seventh Circuit heard reargument en banc today. Indeed, the other case reargued en banc today is quite interesting in its own right.

John Doe v. City of Lafayette, Indiana presents the question whether a municipality may constitutionally prohibit a convicted child molester from setting foot on public park property based on his statements to his psychologist and self-help group that, during a recent trip to a city park, he observed children playing and had thoughts (not acted on) of having sexual contact with children. A divided three-judge panel of the Seventh Circuit, in an opinion issued June 27, 2003, ruled that the ban violated Doe's First Amendment rights. My write-up of the panel opinion can be accessed here.

Although the audio from the college newspaper case is not yet available online, the audio from the oral argument in the John Doe case is now available for download at this link (for best results, right-click and save the MPG audio file to your hard drive). Old and young alike may enjoy hearing Circuit Judge Richard A. Posner putting Doe's counsel through the proverbial wringer.
Posted at 19:29 by Howard Bashman



My friends at the American Constitution Society for Law and Policy would like me to make some announcements: First up:
The American Constitution Society and the American Constitution Society's Georgetown Student Chapter present "Lane v. Tennessee and the Future of the Americans with Disabilities Act" Tuesday, January 13, 2004 from 6 - 7:30 p.m. (reception to follow) - a panel discussion featuring Thomas Henderson, Chief Counsel and Senior Deputy Director, Lawyers' Committee for Civil Rights Under Law; Ira Burnim, Director, Judge David L. Bazelon Center for Mental Health Law; Thomas Goldstein, Partner, Goldstein & Howe and counsel for Lane and Jones; Arlene Mayerson, Directing Attorney, Disability Rights Education and Defense Fund; Patricia Millett, Assistant to the Solicitor General, Department of Justice; and Paul Wolfson, Of Counsel, Wilmer Cutler & Pickering and counsel for the American Bar Association. Bob Herman, Senior Advocacy Attorney, Paralyzed Veterans of America, will moderate. Location: Gewirz Student Center, 12th floor, Georgetown Law Center, 120 F Street, NW. Please RSVP to events@acslaw.org or call (202) 393-6181. For more information please visit: www.acslaw.org.
And if that's not enough interesting programming for one week, there's more:
ACS's DC Lawyer Chapter will host a luncheon program on: Originalism and Statutory Construction. A panel discussion featuring: Professor William Eskridge, Jr., Yale Law School and Professor John F. Manning, Columbia University School of Law. Moderated by: Professor Jonathan T. Molot, George Washington University School of Law. Date, time, and place: Thursday, January 15, 2004 at 12:30 p.m., RFD Washington (Gallery Place/Chinatown Metro). The most convenient access to the room in which the programs are held is at: 810 Eighth St., NW, across from the New Hope Baptist Church. People with disabilities should use RFD's main entrance at: 810 Seventh St., NW. Cost: $15 per person (payable in cash or by check made out to ACS). To RSVP please e-mail events@acslaw.org. Please indicate which event(s) you will be attending. Additional information is available at this link.
If these announcements generate enough additional foot traffic, the ACS will make me the first honorary member of a brand new subchapter for Federalist Society members.
Posted at 19:10 by Howard Bashman



The Associated Press is reporting: An article reports that "Cheney, Scalia visit south La. for duck hunt." And from Missouri, "Judge Duane Benton expected to be nominated to federal appeals court."
Posted at 17:31 by Howard Bashman



"More Bad Judges": Jack Newfield today has this essay online from the January 26, 2004 issue of The Nation.
Posted at 17:29 by Howard Bashman



Bob Egelko is reporting: Today's edition of The San Francisco Chronicle contains articles headlined "State court revisits murder of a fetus; What if attacker is unaware of pregnancy?" and "Judge allows S.F. to enter abortion case."
Posted at 17:24 by Howard Bashman



"Lawyer: Teen's Prison Sentence Excessive": The Associated Press reports here from Boston that "A lawyer for a teen serving 2 1/2-years in prison for setting a boatyard fire that destroyed an engine owned by former President Bush told a federal appeals court Thursday that the punishment is excessive"
Posted at 17:21 by Howard Bashman



"End 'legacy' program, A&M urged; Minorities say policy favors white applicants": This article appears today in The Houston Chronicle.
Posted at 17:18 by Howard Bashman



"Governor nominates Galway to high court; Judge overturned state property tax in '01": The Concord (N.H.) Monitor today contains this report.
Posted at 17:17 by Howard Bashman



"Gary, partner cleared in ethics case": This article appears today in The Palm Beach Post. And The Ocala Star Banner reports today that "Maris' lawyers cleared; Judge dismisses Bar's ethics complaints."
Posted at 17:07 by Howard Bashman



"Voucher judge biased?" Dan Haley has this op-ed today in The Denver Post.
Posted at 17:05 by Howard Bashman



"Kinkel seeks new trial on mental grounds; An appeal says Kip Kinkel should have had a mental exam before his plea and sentencing for four killings": This article appears today in The Oregonian.
Posted at 17:03 by Howard Bashman



"Moore whining: New objections raised by former chief justice." The Birmingham News today contains this editorial.
Posted at 17:00 by Howard Bashman



"Ruling That Alleged Spies Can Sue CIA for Pay Allowed to Stand; Six Ninth Circuit Judges Dissent From Denial of En Banc Rehearing": This article appears today in The Metropolitan News-Enterprise.
Posted at 16:59 by Howard Bashman



The prevailing party's costs of preparing hyperlinked CD-ROM briefs on appeal are not taxable against the losing party in the absence of agreement: So the U.S. Court of Appeals for the Second Circuit ruled yesterday in a decision you can access here. Creating the CD-ROM briefs cost slightly more than $16,000 in addition to what it had cost just to research, write, and file the paper version of the briefs.
Posted at 16:45 by Howard Bashman



"Judiciary cites need for two more judges": Today, when much of the nation is experiencing especially cold weather, The Honolulu Advertiser reports here that "State judiciary officials yesterday asked lawmakers for two new Circuit Court judge positions for Maui and the Big Island."
Posted at 16:30 by Howard Bashman



"We write separately, however, to affirm the common law rule that a government agent's out-of-court statements are not admissible for their truth in a criminal prosecution as admissions by a party opponent." This quotation comes from the first paragraph of a per curiam opinion that a three-judge panel of the U.S. Court of Appeals for the Second Circuit issued today. The caption of the case, by the way, notes that the defendant is "also known as Frank LNU." LNU, of course, is the abbreviation for "last name unknown."
Posted at 15:01 by Howard Bashman



"Miami federal court has 'secret docket' to keep some cases hidden from public": This article appears today in The South Florida Sun-Sentinel.
Posted at 14:44 by Howard Bashman



In news from overseas: The Age of Melbourne, Australia reports in Friday's edition that "State turns down triple murderer's bid for sex change." And The Mid-Day Mumbai reports today that "Jail authorities forget to hang murderer."
Posted at 14:20 by Howard Bashman



"Bork backs Specter's rival in Senate race; He says the judiciary leadership is a concern. Specter helped keep Bork off the high court." This article appears today in The Philadelphia Inquirer.
Posted at 14:12 by Howard Bashman



From the January 9, 2004 issue of The Forward: Justice Ruth Bader Ginsburg has an essay entitled "Lives -- and Legacies -- in Law: Remembering the First Five Jewish Justices of the Supreme Court." And an article is headlined "AJCongress Stands Alone on Pledge Issue."
Posted at 14:00 by Howard Bashman



"Long-standing case involving dorm-shower sex incident finally over": An article published today in The Athens (Ohio) News begins, "A legal saga that began more than six years ago, with two Ohio University students having sex in a dormitory shower, appears finally to be over. On Dec. 1, the U.S. Supreme Court denied a request by former OU student Benjamin Mallory to review a decision by the federal 6th Circuit Court of Appeals, in a civil rights lawsuit he filed against the university in November 1998."
Posted at 13:30 by Howard Bashman



"Judge Moves Peterson Case Out of Modesto": The AP provides this news.
Posted at 13:27 by Howard Bashman



"Ousted Ala. Justice Seeks Reinstatement": The Associated Press provides this report. The Montgomery Advertiser, meanwhile, offers a news update headlined "Moore appeals ouster from high court."
Posted at 12:50 by Howard Bashman



The writ of audita querela is abolished: That, among other things, is what the final sentence of Federal Rule of Civil Procedure 60(b) says. Today a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit divided over whether that part of Fed. R. Civ. P. 60(b) in fact means what it says, with a majority concluding that it doesn't. You can access today's ruling here (HTML) and here (PDF).
Posted at 12:30 by Howard Bashman



Access online the Solicitor General's supplemental filing yesterday in Hamdi v. Rumsfeld: The supplemental brief for respondent is now accessible here. Thanks to everyone who responded to my earlier post.
Posted at 12:26 by Howard Bashman



Bombing exercises on Saipan being used to oppose nominee to U.S. Court of Appeals for the Fourth Circuit: Today's issue of The Saipan Tribune contains articles headlined "FDM bombing being cited to oppose nomination" and "Torres runs in defense of Haynes." You can learn more about Saipan and the Northern Mariana Islands at this link.
Posted at 10:44 by Howard Bashman



Just moments from now, the en banc U.S. Court of Appeals for the Seventh Circuit will hear reargument en banc in Hosty v. Carter: The Student Press Law Center has called the case "the latest battle for college press freedom." On April 10, 2003, I had this post noting the three-judge panel's ruling. The audio of today's reargument en banc may be available online by later today, and I hope to link to it once it is posted online.
Posted at 10:30 by Howard Bashman



Yesterday's supplemental filing by the Solicitor General of the United States in Hamdi v. Rumsfeld: If anyone with a copy (in PDF format) of yesterday's supplemental brief for respondent would be so kind as to email it to me, I will more than happily provide online access to it. This brief has already been the subject of press coverage from The Washington Post and The Associated Press.
Posted at 10:22 by Howard Bashman



Tossing Frisby? Today a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued a majority opinion by Circuit Judge Karen Nelson Moore, in which Circuit Judge Martha Craig Daughtrey joins, that begins:
This appeal raises an important question concerning the scope of an individual's right to engage in targeted residential picketing in the wake of the Supreme Court's decision in Frisby v. Schultz, 487 U.S. 474 (1988). We conclude that Frisby did not place in question an individual's clearly established right to engage in peaceful targeted residential picketing; rather it carved out an exception to this right, allowing the government to prohibit such picketing through a narrowly tailored and applicable time, place, or manner regulation.
The dissenting opinion of Circuit Judge Jeffrey S. Sutton begins:
I see this case differently. In Frisby v. Schultz, 487 U.S. 474 (1988), the Supreme Court rejected a First and Fourteenth Amendment challenge to a city ordinance that imposed a "complete ban" on "targeted residential picketing" because (among other reasons) it can "scarcely be doubted" that this medium of communication is "offensive and disturbing," because this type of picketing is directed at "captive audience[s]" who "are presumptively unwilling to receive" the message, and because such picketing invariably "invade[s] residential privacy." Id. at 487–88. Consistent with Frisby, the State of Michigan makes it unlawful "to engage in picketing a private residence by any means or methods whatever." Mich. Comp. Laws § 423.9f. On this record and under these circumstances, I fail to see how E. Stephen Dean can tenably claim that Thomas Byerley violated his constitutional rights, much less violated his clearly established constitutional rights, when Byerley objected to Dean's targeted residential picketing of his home on the morning of March 27, 2001. Add to this the undisputed fact that Byerley wrote Dean a letter two days after the picketing (but before the filing of this lawsuit) confirming he had "a right to exercise [his] First Amendment rights" in permissible ways, and it becomes difficult to understand why Mr. Dean ought to be able to make a $2 million federal case out of this incident. In my view, the district court properly rejected Dean's federal claims as a matter of law, and accordingly I respectfully dissent.
You can access the complete opinion here (HTML) and here (PDF).
Posted at 09:41 by Howard Bashman



Available at National Review Online: Peter N. Kirsanow, a commissioner on the U.S. Commission on Civil Rights, has an essay entitled "The Felon Franchise: A partisan prison strategy." An editorial is entitled "The Right Amendment: Democracy and marriage." And James Bowman has an essay entitled "'Hypocrisy Against the Devil': Michael Jackson's feminist defense."
Posted at 09:31 by Howard Bashman



In Wednesday's newspapers: The New York Times reports that "U.S. Reasserts Right to Declare Citizens to Be Enemy Combatants." An article reports that "Judge Decides Pentagon Can Resume Anthrax Vaccinations." In business news, "Ex-Enron Figure Reported Near a Plea of Guilty." A news analysis is headlined "Trials, Trials, Trials, and Then What?" In other business news, "Businessman Found Guilty of U.S. Tax Charges." In local news, "Nurse Seeks Deal in Serial Deaths: Naming Victims in Return for Life"; "Punitive Award Sought for Smoker's Widow"; and "Liza Minnelli and Husband Say Prenuptial Accord Rules." And Susan Jacoby has an op-ed entitled "One Nation, Under Secularism."

In The Washington Post, Charles Lane has an article headlined "Showdown on Terrorism Case; Administration Seeks Fast Track for High Court Appeal." A front page article reports that "Dean Says Faith Swayed Decision on Gay Unions." In other news, "Judge Reverses Anthrax Ruling; Pentagon May Resume Vaccinating Members of Military." In business news, "Enron Figures in Plea-Bargain Talks; Fastow Had Refused to Cooperate; Wife's Deal in Doubt." In local news, "Va. Father Appeals Conviction; Girl's Death in Van Called an Accident." In other local news, "3,300 Denied Va. Licenses Under New Regulations." An editorial is entitled "Immigration, at Last." And letters to the editor appear under the headings "Smearing the Reputations of Muslims"; "The Name-Cursed Redskins"; and "Pain Doctors: Unfairly Targeted by the DEA?"

The Christian Science Monitor contains an article headlined "Why Americans are more forgiving of athletes than other figures; While the public seems lenient toward Pete Rose's gambling, it is less accepting of lapses by elected officials and CEOs." An article is headlined "A bill to protect campus conservatives?" And an editorial is entitled "Back to the Immigration Debate."
Posted at 06:33 by Howard Bashman



Wednesday, January 07, 2004
Elsewhere in Wednesday's newspapers: The Los Angeles Times reports that "Judges Uphold Texas Election Maps; The GOP-drawn plan will likely extend the party's dominance in the state." In other news, "Case Yields Chilling Signs of Domestic Terror Plot; Arms cache in Texas leads to convictions but few answers. Critics fault focus on foreign threats." An article reports that "Religion, Geology Collide at the Grand Canyon; In the park's stores is a book saying the chasm is due to the biblical flood. It's a hot seller but a source of controversy among scientists, staff." In other news, "Ex-Students Settle Harassment Suit; Plaintiffs say they were victims of anti-gay abuse while attending schools in the San Jose area." In local news, "Defense Blames Crash on Illness; The driver, 87, pleads not guilty in farmers market tragedy that killed 10. Prosecution says he was in control." In celebrity-related news, "Bryant Threats to Be Discussed" and "Media Seek Jackson Court Records; The sealing of documents pertaining to the singer's molestation case had been extended without the required public notice." An article reports that "Campaign-Finance Rule Fails; A judge rejects an O.C. law against candidates' transferring funds from one account to another." In technology news, "Controversial Website Lets Students Grade Teachers; Some say the site is hurtful and possibly libelous; others consider it a useful tool." And an op-ed by Christine Steiner is entitled "'Lawsuit Barbie' Fails for Mattel; Court upholds an artist's use of the doll in his series of photographs."

In The Boston Globe, Lyle Denniston reports that "Redistricting of Texas upheld; Ruling could keep GOP at helm in US House; foes vow high court bout."

The Washington Times reports that "Court approves GOP-drawn Texas districts." The Associated Press reports from Virginia that "Aliens' college suit derailed." An article reports that "Bill would forbid illegals to bear arms." And in other news, "Colorado combats universities' bias."

Finally for now, USA Today contains an article headlined "Vermont's gay civil unions mostly affairs of the heart; Law didn't spur legal battles or an 'invasion.'"
Posted at 23:45 by Howard Bashman



"Booksellers Sue to Halt Michigan Porn Law": The Associated Press provides this report.
Posted at 23:44 by Howard Bashman



More publicity: Thanks to the Berkman Center for Internet & Society at the Harvard Law School for this. It looks like some folks might really turn out next Monday evening to hear a talk about how "some guy" managed to create an arguably "influential" Web log about "appellate litigation." (Spoken in the voice of Nicolas Cage playing Charlie Kaufman in "Adaptation" (Windows Media Player required) when he explains that his script won't "cram in sex, or guns, or car chases. Or characters overcoming obstacles to succeed in the end.")

And even if you can't attend in person, you'll supposedly be able to watch a live Webcast and submit questions via email. (Link to Webcast and email address both are accessible here.)
Posted at 23:20 by Howard Bashman



"State Porn Law Spurs Lawsuits": NPR's "All Things Considered" tonight included a report (Real Player required) described as follows: "Some Internet users are in federal court this week, trying to overturn a Pennsylvania law meant to combat Internet child pornography. The statute allows the state attorney general to order Internet service providers to block Web sites that he believes to contain child pornography. Hundreds of thousands of Web sites have been denied to Pennsylvanians as a result. NPR's Larry Abramson reports."
Posted at 22:50 by Howard Bashman



Print is passé: The New Jersey Law Journal reports here this week that "Bowing to the power of the Internet, the 3rd U.S. Circuit Court of Appeals will stop printing slip opinions after Jan. 31 and anyone who wants the latest rulings will find them on the circuit's site, www.ca3.uscourts.gov. The decision will save about $45,000 a year that the circuit has been taking from its operating budget for printing the familiar six-by-nine-inch opinion booklets." Of course, anyone who cares only about the really interesting Third Circuit rulings can continue to keep an eye focused right here.
Posted at 22:45 by Howard Bashman



"Court hears arguments in case of 'Internet twins' adoption": The Associated Press provides this report. (Please note: the "Internet twins" are not the "Coors Light twins.")
Posted at 22:22 by Howard Bashman



Available online at law.com: Tony Mauro has an article entitled "Life During Wartime." In news from New York, "Lawyer Makes Plea for Punitive Award in Tobacco Suit." And in other news, "Florida Judge Dismisses Ethics Case Against Willie Gary." Thanks to "Overlawyered.com" for tracking down the link to a profile of Willie Gary that The New Yorker published on November 1, 1999.
Posted at 22:11 by Howard Bashman



Columnist Deb Peterson of The St. Louis Post-Dispatch is reporting: According to an update to her column posted online today:
President George Bush will nominate Missouri Supreme Court Judge Duane Benton to the 8th U.S. Circuit Court of Appeals, sources said Wednesday. Meanwhile, Benton's colleague on the state high court, Stephen N. Limbaugh Jr., who was believed to be the frontrunner for the federal job, has been notified that he is no longer a contender. Insiders say Limbaugh is extremely disappointed. Benton has been on the state Supreme Court since August 16, 1991. He formerly was a judge advocate with the U.S. Navy and was director of the Missouri Department of Revenue from 1989 to 1991. Benton is also the only CPA serving on a supreme court in the United States. State Supreme Court Judge William Ray Price Jr. and Missouri Appellate Judge Kathianne Knaup Crane also were considered for the federal court post.
You can learn more about Judge Benton at this link.
Posted at 22:00 by Howard Bashman



"Federal judge stays execution of Rowsey, three other N.C. prisoners": The AP reports here that "A federal judge granted a stay of execution Wednesday for a man scheduled to die early Friday, siding with attorneys who argue that lethal injection amounts to cruel and unusual punishment."
Posted at 21:02 by Howard Bashman



"Calif. Court Debates Pregnancy, Murder": David Kravets of The Associated Press provides this report.
Posted at 19:49 by Howard Bashman



"Vile, Vile Pedophile: Is child molesting a sickness or a crime?" Slate has just posted online this essay by Dahlia Lithwick.
Posted at 19:33 by Howard Bashman



From The Associated Press: Anne Gearan reports that "White House Want Faster Detainee Review." The article begins, "The Bush administration said Wednesday it plans to rush an appeal in the case of a U.S.-born terrorism suspect so that the Supreme Court can decide by summer whether the government may hold U.S. citizens indefinitely and without charges."

And in other news, "Judge OKs Military Anthrax Vaccinations."
Posted at 18:53 by Howard Bashman



"Despite delay, Connerly ballot initiative gathers steam, enlists campus groups": This article appears in today's edition of The Michigan Daily.
Posted at 17:27 by Howard Bashman



"Judge deals another blow to voucher plan; Battle looming as jurist upholds his previous injunction": The Rocky Mountain News today contains this report.
Posted at 17:26 by Howard Bashman



"Tennessee in role of ADA spoiler": This op-ed by Jim Ward, president of the National Coalition for Disability Rights, appears today in The Commercial Appeal of Memphis.
Posted at 17:24 by Howard Bashman



Drug-related news from Alaska: The Anchorage Daily News today reports that "Marijuana initiative going to ballot; Small amounts would be OK for personal use; two other proposals expected." And Reuters reports that "Alaskans to Vote on Marijuana Decriminalization."

Yesterday, The Fairbanks Daily News-Miner contained an article headlined "Judge eyes high school drug policy."
Posted at 17:18 by Howard Bashman



"Benson Nominates Galway To Supreme Court; Judge Known For Overturning Property Tax": The Associated Press provides this report from New Hampshire. This morning's edition of The Concord Monitor contained an article headlined "Benson to name high court justice; Nomination sheet: Galway, judge since 1995, was chosen."
Posted at 17:04 by Howard Bashman



Seventh Circuit Judge Richard A. Posner again strongly condemns administrative adjudications in immigration cases: See this opinion issued today on behalf of a unanimous three-judge panel.
Posted at 16:35 by Howard Bashman



"Overrruled": Election Law Professor Rick Hasen reveals the third and final error in footnote 72 of the joint Stevens/O'Connor opinion in the BCRA case. The footnote can be viewed on page 97 of this PDF file. Interestingly, the footnote attributes the error to another currently-serving Justice.

Coincidentally, the blog "Balasubramania's Mania" dissents from any other blog that would point out errors in court opinions and votes to "overrule" [no sic].
Posted at 16:00 by Howard Bashman



"How Appealing" readers know their New Testament: Yesterday afternoon a reader emailed:
Here's a puzzle about Judge Reinhardt's opinion about the HP Bible-quoter. On the third page of the PDF file, he refers to the plaintiff's quotation of "Corinthians 10:12." This isn't as bad as thinking that Job is in the New Testament, but still an indication of some ignorance; there are books called 1 Corinthians and 2 Corinthians (First Corinthians and Second Corinthians), but no plain Corinthians. Neither of the verses talks about homosexuality:

1 Cor 10:12: "So, if you think you are standing firm, be careful that you don't fall!"

2 Cor 10:12: "We do not dare to classify or compare ourselves with some who commend themselves. When they measure themselves by themselves and compare themselves with themselves, they are not wise."
More information on the Corinthians volumes may be accessed here. Those who wish to cite the Corinthians in support of an anti-homosexual viewpoint seem to opt for 1 Corinthians 6:9 - 6:11 (the text of which, in English, can be accessed here, here, and here).

Update: Another reader suggests that I link to this translation from NET Bible, with footnotes.
Posted at 15:48 by Howard Bashman



"Appeal court urges review of sexual predator law": The Miami Herald provides this news update. You can access today's ruling by Florida's Fourth District Court of Appeal at this link.
Posted at 15:15 by Howard Bashman



"Judge dismisses ethics case against Willie Gary": The Associated Press provides this report. Earlier today, The Palm Beach Post reported that "Gary 'real confident' he will be cleared."
Posted at 15:08 by Howard Bashman



"Lawyer: Toss out obscenity charges; Privacy right being violated." This article appears today in The Cincinnati Post.
Posted at 14:43 by Howard Bashman



The Atlanta Journal-Constitution is reporting: Today's newspaper contains articles headlined "Court told redistricting 'matter of getting votes'" and "Judge facing inquiries agrees to recusal in parenting cases."
Posted at 14:42 by Howard Bashman



"Britain's top judges face 'squatting' in Lords": The Guardian (UK) reports here today that "The 12 judges in the UK's highest court are likely to be left squatting in the House of Lords after their transformation into a supreme court because their new home, still unchosen, will not be ready." Of course, the Supreme Court of the United States didn't get a building of its own until 1935, the 146th year of its existence.
Posted at 14:37 by Howard Bashman



Access online the redacted transcript of the sealed portion of the Fourth Circuit oral argument last month of the federal government's appeal in the Zacarias Moussaoui case: Thanks to FindLaw, the transcript can be accessed here (90-page scanned PDF file).
Posted at 13:46 by Howard Bashman



Over the dissent of six judges, Ninth Circuit denies rehearing en banc in case of Spy vs Spy: You can access today's order denying rehearing en banc, and the dissent therefrom, at this link. You can access the original three-judge panel ruling issued May 29, 2003 at this link, and my coverage of that ruling is accessible here. This case would seem to be a strong candidate for U.S. Supreme Court review.
Posted at 13:30 by Howard Bashman



"'Sukkah case' goes to Supreme Court": This article appears in the January 8, 2004 issue of The Canadian Jewish News.
Posted at 12:53 by Howard Bashman



"Lawmakers Gear Up To Grill Ex-Partner Nominee For Court of Appeals": The New York Law Journal today contains this report.
Posted at 12:50 by Howard Bashman



The Philadelphia Inquirer is reporting: Today's newspaper contains articles headlined "Judge told that child-porn block affects other sites; A lawsuit in federal court challenges Pennsylvania's efforts to bar access to illegal Internet images" and "Upper Merion is trying again to save Valley Forge Golf Course; Officials want a new hearing because a judge once worked to develop the land. He had disclosed that."
Posted at 12:48 by Howard Bashman



In today's issue of The Harvard Crimson: Today's newspaper contains articles headlined "Solomon Appeal Brief Filed; Military recruiting challenge reaches third circuit" and "Majority of Students Support Gay Marriage."

A copy of the brief the plaintiffs filed on Monday in the military recruiting challenge pending before the U.S. Court of Appeals for the Third Circuit can be accessed here (70-page scanned PDF document). Other documents pertaining to the case can be accessed via this link.
Posted at 10:45 by Howard Bashman



"Anti-gay worker's firing is upheld; An appeals court OKs the dismissal of a man who put up signs criticizing homosexuality." Claire Cooper, legal affairs writer for The Sacramento Bee, today has this report. And Bob Egelko of The San Francisco Chronicle reports today that "Fired HP employee loses appeal over anti-gay signs; Court rules Idaho man wasn't a victim of religious discrimination."

In other news, The SF Chronicle also contains an article today headlined "Settlement in gay suit; Ex-students claimed harassment."
Posted at 10:40 by Howard Bashman



"Search, seizure rule challenged": The Salt Lake Tribune today contains an article that begins:
The right of the people to be secure in their persons against unreasonable searches and seizures shall not be violated . . . unless the person is an undocumented worker in Utah who keeps sneaking into the United States.

At least according to U.S. District Court Judge Paul Cassell, who ruled that Mexican national Jorge Esparza-Mendoza falls outside the definition of "the people" when it comes to the Fourth Amendment. But Esparza-Mendoza has appealed that decision to the 10th U.S. Circuit Court of Appeals and is hoping those judges will agree that immigrants have the same constitutional protections as citizens.
You can access the complete article at this link.
Posted at 10:34 by Howard Bashman



This morning's Ten Commandments news: From Alabama, The Montgomery Advertiser reports that "Moore challenges selection of panel." And The Birmingham News contains an article headlined "Lawyer: Justices shouldn't appoint special court."

Meanwhile, from Georgia, The Athens Banner-Herald reports that "Commandments stay, but other display to go." And The Gwinnett Daily Post reports that "Elder orders new religious display removed."
Posted at 10:00 by Howard Bashman



"Judges uphold new map; If minority voters are hurt, it's because they are Democrats, judges say": David Pasztor and Chuck Lindell of The Austin American-Statesman provide this report. In other coverage, The Houston Chronicle reports that "Texas Democrats to appeal ruling that backs new political map." The Fort Worth Star-Telegram reports that "Judges approve redrawn districts"; "DeLay hails remap victory"; and "Martin Frost says he won't go without a fight." The San Antonio Express-News reports that "Federal judicial panel says redistricting effort wasn't racially motivated." And The Dallas Morning News reports that "Court OKs Texas redistricting" and offers this PDF image displaying the results of redistricting.
Posted at 07:57 by Howard Bashman



"Singapore Says May Loosen Law on Oral Sex": Reuters reported here yesterday that "Singapore may decriminalize oral sex between men and women, a government minister said on Tuesday, but homosexual oral sex looks set to stay illegal."
Posted at 07:47 by Howard Bashman



In Wednesday's newspapers: The New York Times reports that "Texas G.O.P. Is Victorious in Remapping." An article reports that "A.C.L.U. Suit Will Explore Voting Rights of Ex-Convicts." In other news, "California School District Settles Harassment Suit by Gay Students." An article is headlined "Report Sees Gains in Protocol for 9/11 Detentions." In local news, "Beatle's Estate Sues Doctor Over Breach of Privacy"; "Jury Selection Begins in Martha Stewart Trial"; "$3 Million Deal in Police Killing of Diallo in '99"; "In Passport Case, Story of `John Doe' Doesn't Pass Muster"; and "In S.I., Laying Down the Law Seems Different." And in business news, "Spam Keeps Coming, but Its Senders Are Wary."

The Washington Post reports that "GOP Remap Of Districts In Texas Can Stand; Democrats Vow High Court Appeal." An article reports that "Muhammad Sentencing Hearing Postponed." In other local news, "Ehrlich Taps Democrat for Top Md. Court; Veteran Judge From Anne Arundel Would Be Third Appointed Black in Panel's 300-Year History." In business news, "Prosecutors Say Bills Were Inflated For Anti-Drug Ads." A front page article reports that "'Dirty Bomb' Was Major New Year's Worry." And Jay P. Greene and Greg Forster have an op-ed entitled "College Diversity: Fix the Pipeline First."

The Christian Science Monitor contains an article headlined "When doing the right thing leads to arrest; An illegal immigrant assists police and gets deported." And an editorial is entitled "Music Pirates Going Clean."
Posted at 06:33 by Howard Bashman



Tuesday, January 06, 2004
Elsewhere in Tuesday's newspapers: The Boston Globe reports that "Appeals court rules poison law wrongly applied." In other news, "Synagogue sues Newton after standoff; Orthodox group alleges bias in denial of operating permit." And an editorial is entitled "Rehnquist's good advice."

The Los Angeles Times reports that "Bryant Motions Made." In business news, "FCC Fines Firm for Junk Faxes; Fax.com is ordered to pay $5.4 million for transmitting unsolicited advertisements." An article reports that "Driver Who Killed 10 Is Charged; Prosecutors file vehicular manslaughter counts against the 87-year-old man who plowed into shoppers on a Santa Monica street." In entertainment news, "Legal Clash Over 'Samurai' Credit; The originator of a script that led to the movie alleges that the Writers Guild failed to back his efforts." And an article reports that "New Jury to Decide If Killer Is Sane; Adam Tran, convicted of a fatal stabbing in Garden Grove, returns to court Friday for a trial to determine his sanity."

USA Today reports that "Neither family happy with teen's plea deal; Lionel Tate, 16, insists death was accident; victim's mom says his deal is too lenient."

The Washington Times contains an op-ed by Steve Chapman entitled "Unspecial prosecutor's task." And Ellen S. Podgor and Paul Rosenzweig have an op-ed entitled "Bum lobster rap." (I'll be providing much more coverage of this lobster matter someday soon.)
Posted at 23:30 by Howard Bashman



Available online from law.com: An article reports that "Feds File Sealed Response in Secrecy Case." Via "SCOTUSblog," you can access the federal government's redacted motion to seal at this link.

Jason Hoppin has articles headlined "Cubicle Anti-Gay Postings Merited Firing; 9th Circuit rules against employee who protested Hewlett-Packard's sensitivity campaign" and "Judge May Have Been Vindictive, 9th Circuit Says." In news from the Second Circuit, "Challenge to Tobacco Settlement Is Revived." In news from the Seventh Circuit, "Tampering Issue Topples Trademark Win."

In news from state courts, an article reports that "Pa. Justices Want 'Frye' in This Case About Chips; Ruling rejects 'Daubert' as expert evidence test." In news from Florida, "Tate Ruling Seen as Precedent for Trying Children as Adults; Ruling that teenager deserved competency evaluation opens door to questioning trials of other Florida minors." In news from Texas, "Issue of First Impression Likely to Affect Discovery; Texas high court interprets and applies phrase 'possession, custody or control.'" In news from New York, "Claims Revived Against Tobacco Companies of Failure to Warn." And in news from Georgia, Jonathan Ringel reports that "Judge Who Left Child Alone Won't Hear Certain Cases."
Posted at 22:56 by Howard Bashman



Tomorrow will be the thirty-second anniversary of the date on which William H. Rehnquist began serving on the Supreme Court of the United States: Details are available here and here.
Posted at 22:30 by Howard Bashman



In other news from The AP: From Alabama comes news that "Moore objects to selection process for new justices." And a report from Idaho is headlined "Appeals court upholds firing for posting anti-gay verses."
Posted at 22:26 by Howard Bashman



"GOP fights redistricting in U.S. court": This article appears today in The Atlanta Journal-Constitution.
Posted at 22:15 by Howard Bashman



"Analysis: Supreme Court may take months." United Press International offers this report from Dallas.
Posted at 22:13 by Howard Bashman



The Associated Press is reporting: Available online are articles headlined "Prosecutors Drop Request for Rudolph Tapes" and "Calif. Gay Students' Lawsuit Settled."
Posted at 22:10 by Howard Bashman



"Arkansas executes mentally ill inmate; Other man set to die tonight wins stay": CNN.com provides this report.
Posted at 22:04 by Howard Bashman



"That night became memorable for Mr. Wonschik's neighbors when they heard gunshots coming from inside Mr. Wonschik's house and noticed bullets passing through the walls of their own house." Tenth Circuit Judge Michael W. McConnell issued a very interesting decision today on behalf of a unanimous three-judge panel. In the course of reviewing the facts and procedural history, the opinion explains:
The morning before Mr. Wonschik's trial began, the parties and the district judge gathered in the courtroom before a panel of 47 potential jurors in order to conduct voir dire. The judge introduced himself to the panel, and then began speaking to the panel about the events of September 11 and the obligations of American citizens. He referred to a young family friend in the Marines who was deployed to the Middle East, and then said:
This kid is off to fight a war for us. The least we can do is to uphold what he holds sacred. He pledged an oath to support and defend the United States against all its enemies; and he expect us, you and me, to uphold the Constitution of the United States. And that's what we're going to do in this room today. And you people, citizens of the United States, are going to bring life to the Constitution. The Constitution is nothing but a shriveled piece of paper unless people like you breathe life into it.

I didn't do it before September 11, the Pledge of Allegiance, in the morning we begin a trial. It isn't that I didn't put stock in it. Of course, I did. But I just didn't think it needed to intrude on the business of the Court every time we pick a jury trial. I was wrong. Each of us, me included, on an occasion of this importance, needs to remind ourselves of our obligation to our country.

Would you join me now in the Pledge of Allegiance.
Tr. 16. The judge and jurors then apparently recited the Pledge of Allegiance as it is codified in 4 U.S.C. § 4: "I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all."

On appeal, Mr. Wonschik contends that his conviction must be overturned because (1) the jury instructions effectively amended the indictment; and (2) the trial judge's leading the Pledge of Allegiance during voir dire deprived him of a fair trial.
You can access the complete decision at this link.
Posted at 20:45 by Howard Bashman



"Court ponders Web site-blocking law": Declan McCullagh of c|net News.Com has this report. The Associated Press reports that "Lawsuit asks child porn law be reversed because legal sites also blocked." And earlier today, Reuters reported that "Pennsylvania Porn Law Blocks Too Much, Group Says."
Posted at 19:35 by Howard Bashman



"Court Upholds Texas Voting Districts": NPR's "All Things Considered" tonight included this report (Real Player required).
Posted at 19:25 by Howard Bashman



"If U.S. circuit courts were high school stereotypes...." To access the rest of this post, click here to visit the blog "reenhead.com." (The Federal Circuit ruling mentioned in the reenhead post can be accessed here.)
Posted at 19:20 by Howard Bashman



Unanimous three-judge Fifth Circuit panel rejects constitutional challenge to DNA Analysis Backlog Elimination Act of 2000: You can access today's per curiam opinion at this link. Just yesterday (as I previously noted here), the Ninth Circuit granted rehearing en banc to reconsider an earlier three-judge panel ruling that had declared unconstitutional this very same federal law.
Posted at 18:40 by Howard Bashman



"Tribes in a bind over Lara as Supreme Court struggles": Indian Country Today offers this report. I have collected links to that publication's recent previous coverage of this subject in a post you can access here.
Posted at 17:36 by Howard Bashman



"Willie Gary accuses Anheuser-Busch of attack against him": This article appears today in The Palm Beach Post.
Posted at 17:33 by Howard Bashman



"Judge's suit challenging policy dismissed; The rule, which requires judges to be working 40 hours a week, will stand": The Richmond Times-Dispatch today contains this report.
Posted at 17:32 by Howard Bashman



"Township fights golf course ruling": This article appears today in The Times Herald of Norristown, Pa.
Posted at 17:20 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "FBI Tries to Avoid Indefinite Jailings"; "Judge Quits Over Comment on Women Victims"; and "Innocent Plea in California Market Crash."
Posted at 17:00 by Howard Bashman



"Judges approve Republicans' congressional map for Texas": The Associated Press provides this report. And The Austin American-Statesman reports that "Court upholds new congressional districts; Democrats failed to prove wrongdoing, court says."
Posted at 16:07 by Howard Bashman



"Read appellate opinion about dental floss daily": Should that directive ever replace or accompany the instruction to "floss daily," the U.S. Court of Appeals for the Federal Circuit has today provided the requisite reading material. Where else might you learn that "Dental floss should not require a user to apply substantial force in order to get the floss to pass through the spaces between teeth"?
Posted at 15:48 by Howard Bashman



Second Circuit reinstates antitrust challenge to market arrangement alleged to result from New York's "Contraband Statutes," passed in connection with the Master Settlement Agreement between the country's major tobacco manufacturers and New York State: You can access today's ruling of a three-judge panel of the U.S. Court of Appeals for the Second Circuit at this link. The concurring opinion of Circuit Judge Robert D. Sack can be accessed here.
Posted at 15:28 by Howard Bashman



Divided three-judge federal district court panel rejects challenge to Texas redistricting: The Fort Worth Star-Telegram has this news alert. You can access today's decision of the U.S. District Court for the Eastern District of Texas at this link (127-page PDF file).

Update: Law Professor Rick Hasen, who operates the "Election Law" blog, has posted a copy of the decision here at his Web site, for those who cannot connect to the court's Web site. Undoubtedly Rick will have more of substance to say about the ruling in due course.
Posted at 15:08 by Howard Bashman



Unanimous three-judge Ninth Circuit panel affirms dismissal of religious discrimination claim brought against Hewlett-Packard by employee fired for posting Biblical passages that condemned homosexuality: Circuit Judge Stephen Reinhardt wrote today's opinion.
Posted at 13:30 by Howard Bashman



"The Lights Are on in Bolinas: 'A Small town makes a big statement.'" The January 2004 installment of Justice William W. Bedsworth's column is now available online here. Justice Bedsworth will be the June 2004 interviewee in this blog's "20 questions for the appellate judge" feature.
Posted at 12:40 by Howard Bashman



"EHT student's case might go to U.S. top court": This article appears today in The Atlantic City Press.
Posted at 12:02 by Howard Bashman



The Montgomery Advertiser is reporting: As I predicted just moments after a Virginia jury returned its sentencing recommendation for Lee Boyd Malvo, the State of Alabama remains interested in making sure Malvo receives the death penalty, this article published today further confirms.

And in Ten Commandments-related news, "Two former Moore staffers to lead appeals efforts."
Posted at 11:54 by Howard Bashman



New judges: Today's edition of The Philadelphia Inquirer contains an article headlined "Lawyer takes seat on Superior Court; Susan Gantman of the Main Line faced a battle after the fall election. Democrats have filed a federal suit." The article begins, "Main Line lawyer Susan Gantman was privately sworn in to office over the weekend, but Democrats said yesterday that the declared winner of the closest statewide election in modern history should not get too comfortable in her state Superior Court seat."

And The Allentown (Pa.) Morning Call today contains an article headlined "Pazuhanich is sworn in as judge, but charges will delay duties; He won't get court cases while he stands accused of molestation."
Posted at 11:25 by Howard Bashman



"Cindrich leaving federal bench to work for UPMC": The Pittsburgh Post-Gazette reports here today that District Judge Robert J. Cindrich of the U.S. District Court for the Western District of Pennsylvania "said yesterday that he would resign from the federal bench to become chief legal counsel to the University of Pittsburgh Medical Center starting Feb. 1." President Clinton, toward the end of his second term in office, nominated Judge Cindrich to fill a vacancy on the U.S. Court of Appeals for the Third Circuit, but the U.S. Senate never acted on the nomination. Today's article explains that financial and other concerns led to Judge Cindrich's decision to leave the bench. This blog's last mention of Judge Cindrich occurred this past December 26th in a post you can access here.
Posted at 10:44 by Howard Bashman



"Bork backs Toomey for Senate; Former U.S. Supreme Court nominee says he wants to block Specter from leading the Judiciary Committee." This article appears today in The Morning Call of Allentown, Pa.
Posted at 09:26 by Howard Bashman



The San Francisco Chronicle is reporting: In today's newspaper, Bob Egelko has articles headlined "Parolee-DNA decision reviewed; Court says full Ninth Circuit will have to consider constitutionality" and "Ex-cons have right to refuse medication; State high court rules on patients held in hospitals." Meanwhile, yesterday's newspaper contained an article headlined "Critics say new state prison defies logic; They point to huge state deficit, dwindling number of inmates."
Posted at 09:20 by Howard Bashman



"Martha Stewart Lawyers File for 'Change of Veneer'": "ScrappleFace" provides this report.
Posted at 09:15 by Howard Bashman



In Tuesday's newspapers: The New York Times reports that "U.S. Begins Screening Program for Monitoring Foreign Visitors." In other news, "Questions Seen on Seed Prices Set in the 90's." An article reports that "Rose, in New Book, Admits Betting on His Team." In local news, "Jury Selection to Begin Today in the Trial of Martha Stewart." In business news, "Judge Says Maker of OxyContin Misled Officials to Win Patents." In news from Connecticut, "Judge Resigns and Admits That He Lied About Loan." And an article reports that "After a Death, Revenge Isn't So Sweet."

The Washington Post reports that "U.S. Taking Photos and Fingerprints Of Visitors; Some Foreigners Face New Policy Upon Arrival." In other news, "No Word From Bush On Forms in Leak Probe; FBI Tactic Encourages Reporters to Talk." An article reports that "Rose Says He Gambled On Baseball as Manager; Admission Comes 14 Years Into Lifetime Ban." In local news, "Guilty Plea Entered in Fatal Stabbing of Capitol Hill Intern." In business news, "Fax.com Hit With $5.4 Million FCC Fine; Firm Specializes in Unsolicited Ads." An editorial is entitled "Fingerprints." And letters to the editor appear under the heading "Liberties and Limits in the War on Terrorism."

The Christian Science Monitor contains an article headlined "New tracking system to safeguard borders; US VISIT aims to keep better tabs on foreigners, but critics fear costs and delays." And an article explains "Why more senior citizens are carrying guns; They're protecting themselves from what they see as a rise in violence, even if crime statistics say otherwise."
Posted at 06:30 by Howard Bashman



"Combatant's Case Before High Court; Attorney Argues Lower Ruling Backs Review of Hamdi's Detention": Tuesday's edition of The Washington Post contains this report.
Posted at 00:22 by Howard Bashman



"Lethal injection challenge rejected by appeals court for a second time": This article will appear in Tuesday's issue of The Houston Chronicle.
Posted at 00:20 by Howard Bashman



Monday, January 05, 2004
In Monday's newspapers: The Boston Globe reports that "Weld, 2 ex-AGs urge passage of gay marriage law." And in other news, "Top lawyers jump ship for Littler; California law firm hires local attorneys to open 29th US office in Boston."

The Washington Times reports that "Cities in revolt over Patriot Act." And in news from Maryland, "'Paper trail' of votes omitted."

The Christian Science Monitor reports that "Terror still a no-show on US soil; Experts cite better intelligence and security since 9/11, but warn of complacency." And in other news, "Mad cow weighs down a $175 billion industry; New slaughterhouse procedures, such as barring 'downer' cattle from the food supply, aim to keep beef sales healthy."

The Los Angeles Times contains a front page article headlined "Love Might Not Prevail After All; A foster child who says he was raised like a son seeks an inheritance, but distant relatives stake a claim. A court ruling may be far reaching." In other news, "Market Tragedy Took Driver's Spirit, Kin Say; Once gregarious, George Weller, 87, has become reclusive since the fatal Santa Monica crash." And letters to the editor appear under the headings "Capital Punishment and Deterrence" and "'Extreme Entertainment' of Celebrity Trials."

The New York Times reports that "In Survey, Fewer Are Sharing Files (or Admitting It)." An article reports that "Mad Cow Forces Beef Industry to Change Course." An article is headlined "Jail as Old as Alcatraz, With Own Brand of Infamy, Has Done Its Time." An article reports that "Company Barred From Use of Some Pop-up Ads." And columnist Bob Herbert has an op-ed entitled "Getting Away With . . ."

The Washington Post contains editorials entitled "Silence on the Hill . . ." and ". . . While Abuses Are Confirmed." And Columnist William Raspberry has an op-ed entitled "Affirmative Approach."

Finally for now, USA Today contains an op-ed by Ronald Goldfarb entitled "Pretrial circus threatens justice."
Posted at 22:30 by Howard Bashman



"Tug McGraw, 59, Is Dead; Star With Mets and Phillies": Tomorrow's issue of The New York Times will contain this obituary.
Posted at 22:29 by Howard Bashman



"Just sit right back and you'll hear a tale": While petitions for rehearing en banc remained pending, today a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit declared the silvery minnow injunction appeal moot. You can access today's mootness ruling at this link. (This post's title courtesy of the "Gilligan's Island" theme song.)
Posted at 22:20 by Howard Bashman



"State high court hears lawyer's challenge to anti-bias class requirement": This article will appear in Tuesday's issue of The Minneapolis Star Tribune.
Posted at 22:10 by Howard Bashman



Even more news from The AP: Now available online are articles headlined "N.M. Supreme Court Lets Gun Law Stand"; "Ala. Wants Sniper Suspect Tried There"; and "Media Seeks Open Court for Smart Suspects."
Posted at 22:01 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "White House Seeks Secrecy on Detainee."

An article is headlined "Court: Drugs Can't Be Forced on Inmates." You can access today's ruling of the Supreme Court of California at this link. D.C. Circuit nominee Janice Rogers Brown was the lone dissenter.

And in other news, "Ex-Prosecutor Sworn in Secretly As Judge."
Posted at 21:01 by Howard Bashman



From today's broadcast of the NPR program "Talk of the Nation": A lengthy segment entitled "Gay Marriage and Gay Rights" (Real Player required).
Posted at 19:17 by Howard Bashman



"U.S. Appeals Court to Revisit DNA Ruling": David Kravets of The Associated Press provides this report. You can access my coverage from earlier today at this link.

By the way, Kravets's article errs in stating that the last time that an eleven-judge Ninth Circuit en banc panel overturned the result reached by a three-judge panel was in the California gubernatorial recall election case. As careful readers of this blog are well-aware, the last time this happened was just last week, when an en banc panel held that federal law prohibits the United States Fish and Wildlife Service from authorizing a sockeye salmon enhancement project in an Alaska wilderness reserve. You can access more details on that ruling at this link.
Posted at 19:13 by Howard Bashman



"Arkansas prepares to execute mentally ill inmate": CNN.com provides this report.
Posted at 17:15 by Howard Bashman



"Writes, Punctuation Book and Finds It's a Best Seller": Today's edition of The New York Times contains this interesting article about the book "Eats, Shoots & Leaves: The Zero Tolerance Approach to Punctuation," which became an unexpected best seller in Britain and will be published in the USA this April.
Posted at 16:49 by Howard Bashman



A fifteen-month federal prison sentence for willfully mislabeling doughnuts as low-fat: This article appears today in The Wall Street Journal. Thanks to "Obscure Store" for the pointer.
Posted at 16:32 by Howard Bashman



It's not a good day to be a urine salesman in South Carolina: The Associated Press reports that "SC High Court refuses to overturn conviction for man who sold urine." You can access today's ruling of the Supreme Court of South Carolina at this link.
Posted at 15:28 by Howard Bashman



"Group wants top court to hear case of boy distributing religious gifts": The Associated Press provides this report from Egg Harbor Township, New Jersey.
Posted at 15:24 by Howard Bashman



Ninth Circuit grants rehearing en banc in a case in which a divided three-judge panel had declared unconstitutional the federal DNA Analysis Backlog Elimination Act of 2000: You can access today's order at this link. My coverage of the original (now-vacated) three-judge panel ruling can be accessed here. Circuit Judge Stephen Reinhardt wrote the panel's majority opinion, in which Circuit Judge Richard A. Paez joined, while Circuit Judge Diarmuid F. O'Scannlain dissented.

The Recorder reported on the original ruling in an article headlined "9th Circuit Scoffs at Forced DNA Testing," while National Review Online published a debate under the heading "DNA: Is the 9th Circuit wrong?"
Posted at 13:30 by Howard Bashman



"Due Process for Terrorists? The case for a federal terrorism court." This essay by Thomas F. Powers appears in the January 12, 2004 issue of The Weekly Standard.
Posted at 13:08 by Howard Bashman



Opening the floodgates: Because I will be on the road early next week in connection with my lecture at Harvard Law School to the Harvard Journal of Law and Technology on the evening of Monday, January 12, 2004, I have decided to begin soliciting questions for February 2004's "20 questions for the appellate judge" interviewee, Ninth Circuit Judge Stephen Reinhardt.

Readers who wish to propose questions for Judge Reinhardt may do so by sending me an email, a process you can initiate by clicking here. Those who wish to learn more about February 2004's interviewee may enjoy reading a profile entitled "The Last Liberal: Judge Stephen R. Reinhardt may be out of step with the times. And that's just fine with him" recently published in California Lawyer and an essay published by The Weekly Standard under the heading "The Judge the Supreme Court Loves to Overturn." It is my practice not to identify which questions have been submitted by readers (although I do profusely thank readers who take the time to submit proposed questions).
Posted at 13:00 by Howard Bashman



"Court Looks at More Terror Plan Challenges": Gina Holland of The Associated Press provides this report.
Posted at 12:30 by Howard Bashman



Today is "20 questions for the appellate judge" day at "How Appealing": On the first Monday of each month, this Web log publishes a brand new installment of "20 questions for the appellate judge." Today's interviewee is Tenth Circuit Chief Judge Deanell Reece Tacha. You can access her interview either by scrolling down this page a bit or by clicking here.
Posted at 12:20 by Howard Bashman



In today's issue of The Harvard Crimson: Today's newspaper contains articles headlined "Harvard To Join Recruitment Talks" and "GSE Student Acquitted of Rape Fights for Readmission."
Posted at 12:12 by Howard Bashman



"McRae's fiery tenure ends with no regrets": The Clarion-Ledger today provides this report on former Mississippi Supreme Court Justice Chuck McRae.
Posted at 09:51 by Howard Bashman



"First Myths: Some on the right are getting the First Amendment wrong." Law Professor Eugene Volokh today has this essay at National Review Online.
Posted at 09:35 by Howard Bashman



"More Than They Deserve": CBS News has posted online many more details concerning last night's "60 Minutes" segment on the harsh sentences that the federal Sentencing Guidelines often require federal judges to give to convicted drug offenders.
Posted at 06:50 by Howard Bashman



Available online at law.com: Tony Mauro reports that "Rehnquist Rings in New Year With Stern Words to Congress." Jonathan Ringel reports that "PGA Media Fight Set to Tee Off at 11th Circuit; Morris Communications wants right to publish real-time scores." In news pertaining to the U.S. Court of Appeals for the Second Circuit, "Firm Ordered to Turn Over Non-Privileged Documents." And in news from New Jersey, "Judge Digs in Against His Recusal in Mass Bankruptcy Case."
Posted at 06:45 by Howard Bashman



"Justices to Plunge Into Legal Issues Raised by War on Terror": Charles Lane has this article in Monday's issue of The Washington Post.
Posted at 00:30 by Howard Bashman



20 Questions for Chief Judge Deanell Reece Tacha of the U.S. Court of Appeals for the Tenth Circuit: "How Appealing" is so very pleased that Chief Judge Deanell Reece Tacha of the U.S. Court of Appeals for the Tenth Circuit has agreed to participate in this Web log’s recurring monthly feature, "20 Questions for the Appellate Judge."

Tacha joined the Tenth Circuit in December 1985 at the age of 39. She attended undergraduate school at the University of Kansas and law school at the University of Michigan. Following law school, she served as a White House Fellow. For the next several years, she engaged in the private practice of law, first in Washington, DC and then in Concordia, Kansas. In 1974, she joined the faculty of the University of Kansas School of Law, where she remained until she joined the Tenth Circuit in 1985. From 1974 through 1977, she also served as director of the Douglas County Legal Aid Clinic in Lawrence, Kansas. In addition to teaching law, Tacha also served in several administrative positions at the University of Kansas, culminating in her service from 1981 through 1985 as Vice Chancellor for Academic Affairs.

On January 26, 2001, Judge Tacha became the Tenth Circuit’s Chief Judge, a post that she will remain entitled to hold through January of 2008. Chief Judge Tacha has her chambers in Lawrence, Kansas, and the Tenth Circuit has its headquarters in Denver, Colorado.

Questions appear below in italics, and Chief Judge Tacha’s responses follow in plain text.

1. Although several former chief judges of federal appellate courts have participated in this "20 questions" feature, you are the first currently-serving chief judge to participate. Please explain how the role and responsibilities of the chief judge of a federal appellate court differ from the role and responsibilities of other judges in regular active service. In the course of your answer, perhaps you could touch on whether you have reduced your caseload due to your other responsibilities as chief judge, whether you have taken advantage of the ability to have an extra law clerk, your role in considering judicial misconduct complaints, and your participation as the Tenth Circuit's representative in the Judicial Conference of the United States.

Although I have served in leadership capacities in many organizations, serving in leadership in the federal judiciary is one of the greatest challenges and most interesting assignments I have ever taken on. Sometimes it is said that trying to lead federal judges is like "herding cats." I prefer to think of it as convening and facilitating the work of a group of remarkably bright, committed, and interesting colleagues. Sometimes reaching consensus on a policy or administrative matter among such an appropriately independent and knowledgeable group is a good crucible in which to hone one's administrative skills! With all due respect, I have found no shrinking violets in the federal judiciary. Unlike the corporate world -- or even the law firm world -- there is simply no "bottom line" in the administration of justice other than trying to provide the fairest possible system in which judges are free to exercise their independent judgment as fully as possible in the context of the constraints of budget, staff, space, and all of the other necessary support systems in the institution. I have greatly enjoyed this challenge and have grown from the experience.

The Chief Judge of a federal circuit is charged with significant administrative responsibilities in addition to a regular caseload. As chief judge, I serve as Chair of the Judicial Council of the Tenth Circuit and as a member of the Judicial Conference of the United States. It is an honor to serve on both. I have enjoyed so much working under the leadership of Chief Justice Rehnquist and the many able chairs of the Executive Committee of the Judicial Conference. Judge Carolyn King, the current chair of the Executive Committee, has shown remarkable leadership in this very difficult past year. Among the many other administrative responsibilities that chief judges carry are responsibilities relating to space and facilities, security, libraries, budget and resource allocation, personnel, judicial conferences, judicial misconduct issues, and a host of representative ceremonial duties. For example, in the current budgetary climate, we are each working with our Circuit Executives to make tough budgetary decisions for the various units within our courts. I welcome these many challenges. Before I came to the bench, I was the Vice Chancellor for Academic Affairs at the University of Kansas, so I have had significant administrative experience. More important, I have been fortunate to have had a very able Circuit Executive and great assistance from the Administrative Office of the United States Courts in fulfilling my administrative duties.

I have slightly reduced my caseload, but I consider it very important to keep an almost full caseload so that I continue to assist my court. Although I am entitled to an additional law clerk, I have not taken advantage of that. I felt it more important to use that position to assist the whole circuit. Following the lead of the two chief judges ahead of me in our circuit, Judges Monroe McKay and Stephanie Seymour, we "donate" that law clerk position to the central circuit staff.

Perhaps one of the most important responsibilities of the chief judge is working with judicial misconduct complaints. These matters are very important to the judicial system and to the administration of justice generally. I think I can speak on behalf of all of the chief judges in the nation in saying that we take these complaints very seriously, and that we are cognizant of our special duty to foster the public's trust in the judiciary. Therefore, we devote a great deal of time to these matters and vigilantly investigate every complaint. The rule of law depends, under our system of government, on an independent judiciary that is in fact impartial, free from bias or pressure from outside sources, dedicated to its public service, and is so perceived. Safeguarding the public's trust in our judicial system is one of my most important duties as chief judge.

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

I would list several things as my most favorite aspects of being a federal appellate judge. The first is that I never get bored! Almost every set of briefs raises issues that require me to learn something new or something more about a particular legal issue. Judging is the quintessential job that requires you to keep up with developments in the law. Indeed, we have the great luxury of confronting cases that often are on the cutting edge of societal controversies and must learn as much as we possibly can about the facts and law that underlie those controversies. Second, I like the fact that federal judges are generalists. I often say that judges may be the last generalists left in professional life, and I have resisted mightily any suggestion that the federal courts become specialized in any particular area. Third, I like what I can only best describe as the inferno of the real world. When you are charged with the responsibility of deciding cases that affect the lives and fortunes of the litigants and many others, you inevitably feel the weight of those decisions. You, therefore, impel your intellect and energy toward trying to do the very best you can in interpreting the law and reaching an appropriate result. When you are constantly aware of the responsibility with which you have been entrusted, I think you cannot avoid pushing yourself to do more -- more research, more work, more thought, more analysis.

I also list among my favorite aspects of the job the opportunity to work with my law clerks. I have had a series of extraordinarily bright, very personable, and just terrific people as law clerks. They are like part of my family. I keep in regular touch with all of them. My personality and preferred way to operate is very informally and very openly with my law clerks. Thus, we form a team in my chambers that is very rewarding to me. I learn as much from them as they do from me. In my relationship with my law clerks, I always try to model a well-rounded professional life. I encourage them to do things other than their law clerking responsibilities -- community service, church work, family time. I am the mother of four, the youngest of which was born right before I came on the bench. As far as she is concerned, all mothers are federal judges. As I have observed attorneys and judges, I have become increasingly aware that the legal profession is a hard taskmistress and that, unless we are very deliberate, we can allow our professional responsibilities to obscure or even obliterate those other aspects of our personalities that brought us to our positions in the profession. I feel very strongly that lawyers and judges alike have a responsibility to their communities, the nation, their families, and their profession to devote significant time outside of their work responsibilities to these other endeavors. It is very easy to become so immersed in work as lawyers and judges that we lose touch with personal and community ties. Thus, in my work with my law clerks, I attempt to encourage them early in their careers to develop habits that foster excellent legal work and a broad range of personal interests.

My least favorite aspect of being a federal judge is related to my commitment to public service and other responsibilities outside of the judicial realm. I work with many philanthropic groups. I find it at times taxing to always draw the appropriate lines between my judicial duties and my philanthropic activities -- especially with social service and education agencies that must raise money for their causes. I am like a broken record when I am asked to be on nonprofit boards or commissions. I always have to remind them that I cannot raise money and cannot be involved in any fundraising efforts. Although I think I have been meticulous in trying to draw these lines, it is a difficult and confining aspect of the job always to remain outside of the vital fundraising aspects of the work of these wonderful charitable organizations -- especially for a naturally gregarious person.

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

I have two favorite judges. They are at opposite extremes of the spectrum. One of my favorite federal judges historically was Justice John Harlan. I admire him for several reasons. His position on the United States Supreme Court at that time was a very important one but one that found him in dissent on some very important cases. I have often been reminded of a time when I sat with Judge Leon Higginbotham on a moot court panel at Yale when he said something like, "Think how the course of history would have been changed had John Harlan been in the majority in Plessey v. Ferguson." I also think of his dissents in The Civil Rights Cases, in several Commerce Clause cases, and many others. In my view, although he often found himself in dissent during his tenure on the Court, history has proven that his was a strong intellect and one of the Court's more influential jurists.

The other judge that I admire was a state district court judge in Concordia, Kansas. I had been with Hogan & Hartson in Washington, D.C., working on some fairly significant securities matters. When I returned to Kansas, I went in with one other lawyer and had not been to court really at all. The Honorable Marvin Brummett was the local district judge. There had, of course, not been any women attorneys in that town in the early 1970s, so I was a bit of a novelty. Judge Brummett treated me with the utmost respect and professional care, and, more important, he modeled a judicial demeanor that I have attempted to emulate since that time. He was dignified, kind, entirely professional, and ever so thoughtful. My best example of his demeanor is the first time I went into court on a divorce case. I had over-prepared entirely and thought that I was on top of all of the appropriate questions and issues. After I had fully questioned my client on the stand, Judge Brummett very quietly and thoughtfully said, "Counsel, you may wish to ask her where she resides." Of course, I had failed to ask the most important question in a divorce case -- the domicile question. Instead of embarrassing me in front of the client, Judge Brummett so thoughtfully educated me without a shred of disrespect. I always remember that incident when I think about how to treat lawyers and how to educate them in the norms of the profession.

4. How did you come to President Ronald Reagan's attention as a potential nominee to serve on the U.S. Court of Appeals for the Tenth Circuit?

I am absolutely certain that it was Senator Bob Dole who brought me to the attention of President Reagan. Senator Dole was an influential majority leader at the time and had been a friend of my family since I was a very young child. Indeed, my mother worked on his first campaign for the House of Representatives. I was very happy as Vice Chancellor for Academic Affairs at the University of Kansas, but the Senator called me on a number of occasions urging me to put my name in the hat for the court of appeals position. At the time, there were at least a couple of other people in the State of Kansas who were interested in the position. I was junior to them and they had been important to my career, so I hesitated to throw my name into competition with them. I finally was convinced to do so, and both Senator Dole and Senator Nancy Kassebaum were extraordinarily supportive of my candidacy. In light of some of the confirmations in recent years, I have felt very fortunate indeed to have had that kind of support.

5. The confirmation process that nominees for U.S. Court of Appeals vacancies must undergo is quite a bit more politicized today than it was when you experienced it in 1985. Does the current tenor of the confirmation process cause you any concern as a sitting federal appellate judge, and what if anything realistically can be done to improve the nomination and confirmation process?

I share the concern that many have expressed about the apparently more politicized confirmation process than I experienced in 1985. The tenor of that process concerns me for a very different reason than the effect that it has on the judge. I worry about how it affects the public. There is ample evidence that the public has very little understanding of the court system, the judicial process generally, and even of the way that we decide cases. When candidates for the judiciary are so publicly questioned about their personal views on various controversial issues of our day, I feel that the public is increasingly convinced that judges base their decisions on their personal views rather than case law, statutes, and relevant facts. In my view, the confirmation process is an excellent example of one of the places where the public could be educated appropriately about the role of an independent judiciary, the true meaning of a government of laws and not of people, and some of the basic tenets upon which this nation was founded. Regrettably, when the public is only exposed to such rancorous questioning about personal viewpoints, it reinforces the cynicism about whether the judicial process is fair for all people. I fully recognize and applaud the constitutional role that the Senate has in the confirmation process. I only wish that all three branches of government would spend some time taking the high ground of educating the public about some of the basic first principles upon which this nation was founded. Regrettably, I think the confirmation process as it stands today is counterproductive in that respect.

6. Seventh Circuit Judge Richard A. Posner has described his own judicial philosophy as "pragmatic." How would you describe your judicial philosophy, and what sort of cases do you find the most difficult to decide?

I have always found "judicial philosophy" questions troublesome and difficult to answer. I know that I am described in various publications with some of the labels that people inevitably place on judges. I think this whole question of judicial philosophy is a much overblown concept. In my view, if judges are doing their jobs appropriately, they adhere with careful precision to the law and facts of the case before them. They do not stray into policy or what should be. They stick with the text of the Constitution, statute, or regulation that they are interpreting. Judges quite simply cannot fix problems in our country. Judges can only decide the controversies in front of them. I have found very few cases in which I thought there was ever the legitimate flexibility in the applicable law to bring to bear anything other than that law itself.

I am not, however, naive. I understand that the vantage point from which we see some of these issues may affect our interpretation, but that is why we have a diverse group of judges who bring unique backgrounds and experiences to the questions before them. On any federal appellate court, there will be judges who were appointed by several administrations and who come from a host of different backgrounds and beliefs. In my judgment, this is a somewhat hidden check in the court system that the public, and perhaps even the lawyers, rarely appreciate. It is that mix of analytical vantage points that is one of the great strengths of the federal courts.

With respect to what cases are the most difficult to decide, I find it difficult to identify any one category of cases. I think it should be said, however, that almost any judge in the nation would say that death penalty cases are among their hardest and greatest responsibilities. The law in these cases is typically quite well established, but I think a judge would be remiss indeed if he or she did not single out death penalty litigation as among the most difficult things that we do.

7. 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, one proposal under consideration for dividing the Ninth Circuit would involve moving the State of Arizona into the Tenth Circuit. Does the Tenth Circuit have any official view on whether putting Arizona into the Tenth Circuit is a good idea, and if so what is it? And please share your own individual thoughts about whether, and why or why not, moving Arizona from the Ninth Circuit to the Tenth Circuit ought to occur.

I take no position on the split of the Ninth Circuit. I think that Ninth Circuit judges and policymakers are in the best position to make that judgment. I will say, however, that some of the proposals include adding some of the Ninth Circuit states to the Tenth Circuit. My circuit and I oppose those proposals. This position against adding any states to our circuit is not an objection to any particular judges or states but rather a strong view that the size of the Tenth Circuit is about right. We currently have twelve active judges and seven senior judges. We continue to be able to read each other's proposed opinions and keep up fairly adequately with the development of the law in the circuit. Consistency within the circuit is, to me, one of the highest values, and I believe that increasing the size of our circuit could endanger this highly desirable value.

8. In your role as Chair of the Committee on the Judicial Branch, you have no doubt worked tirelessly to convince Congress to authorize much-needed pay raises for members of the federal judiciary. Once again, however, Congress has failed to take any action. What if anything more can the federal judiciary do to press its case for pay raises, and how much hope to you hold out for improvements in the short term?

As Chair of the Committee on the Judicial Branch, I have been very much involved in the effort to address the inadequacy of judicial compensation. We were gratified indeed that the Volcker Commission last year identified federal judicial salaries as "the most egregious example of federal compensation policies." There is absolutely no doubt that many lawyers in practice choose not to come into the judiciary because the sacrifice for their families is too great. Similarly, an increasing number of Article III judges have left the judiciary because the opportunities in the private sector were so attractive and the sacrifice for their families so great. We all understand that public service requires some sacrifice. The question is, however, whether the sacrifice has become so great that it threatens the quality of the judiciary. In my judgment, it is incumbent upon those of us who see this problem from the inside to communicate the problem to Congress and to the people of the United States. That is what we attempt to do in our work on the Committee on the Judicial Branch. We recognize that members of Congress, too, are making extraordinary sacrifices financially. We have remained committed to the proposition that senior people in all three branches of government should be paid adequately to ensure the continuing quality of public servants. The President this year recognized the problem, and he and the Chief Justice recommended to Congress that judicial salaries be increased by 16.5%. Although we were disappointed that Congress failed to act on this recommendation, we are hopeful that by continuing to talk with members of Congress about this important issue we will make some progress in upcoming years.

9. Judge Richard A. Posner last month in his "20 questions" interview stated, with respect to federal judicial salaries, "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." As someone who does not reside in a large city, what is your reaction to that proposal? And to what extent, if any, is it relevant to the quest for higher federal judicial salaries that several well-known lawyers in private practice have agreed to accept federal appellate court nominations at the cost of forgoing millions of dollars of earnings that they would have received had they remained in private practice?

With all due respect to my colleague, Judge Richard Posner, I oppose vigorously any attempt to provide cost of living adjustments to the judiciary on the basis of some difference in cost of living between large cities and semi-rural areas. I recognize fully that this is somewhat self-serving on my part! I think, however, that there are a very important philosophical and pragmatic problems with such an approach. The philosophical issue is that we should treat all Article III judges equally. We have equal responsibility. We have equal duties. Our votes each count the same. It would be, in my judgment, antithetical to the entire Article III underpinnings to distinguish in salary among judges who have been appointed and confirmed in exactly the same way. The pragmatic problem is that although it is obviously true that there is a difference in cost of living between Lawrence, Kansas, and Chicago, Illinois, that does not change the fact that many of our children go away to college all over the country. The single most troubling aspect of the salary issue has nothing to do with our living arrangements and basic necessities as judges. It has everything to do with what we are able to do for our children and families. The two issues most often cited are paying for college education and the ability to leave some estate for those we love. The judges I know are far less worried about where they live and what they eat personally than whether they have provided as fully for their families as they had the potential to do. I live in Lawrence, Kansas, but I have four children -- two of whom are currently in private education and one of whom has been in private education. I know firsthand about the agonizing questions that a judge must ask about whether the sacrifice is too much. Though I love my job and have no intention of leaving, I have experienced several fairly sleepless nights over how to meet various tuition responsibilities. Therefore, I think that this is much more than a cost of living issue.

I cannot respond to how many well-known lawyers in private practice have accepted federal court nominations, but I know that there is something of an increasing trend toward nominees who have already been in public service or in academic life. Although these people often make excellent judges, it is important to the diversity on the federal bench that some of our judges come from private practice. Some of the very best judges on my court are those who have had active private practices and have a very firm understanding of litigation in the private law firm context. It would be a serious blow to the federal judiciary if those people were less inclined to come into the judiciary.

10. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates you wish were applying but haven’t been? Also, how if at all did the new "Law Clerk Hiring Plan" change for better or worse your experience in hiring law clerks who will be reporting to work in the fall of 2004?

Although their academic credentials are, of course, important, I look to hire law clerks that have exhibited interests that go well beyond the law. Many of my clerks have received other advanced degrees and have done significant community and volunteer service. Also, because I received my entire education at public institutions, I feel a real responsibility to look carefully at applicants who come from public institutions. My experience as a faculty member and as a judge tells me that there are excellent candidates who come from a wide range of schools. As is no doubt evidenced from my list of law clerks, I also tend to be as loyal as I can be to those institutions with which I have been affiliated. So far as I can tell, I am getting exactly the kind of applicants that I would like to hire. Indeed, for me, the hardest part is saying no to some who apply.

I very much like the new Law Clerk Hiring Plan. I received exactly the same kind of applicants I always have, but I had much more information on which to rely. I think it is exceedingly important to wait until well after the second year to hire law clerks. I am not among those who think that there is any particular downside to the new hiring plan. I appreciate the work that Judges Ed Becker and Harry Edwards have done on that plan and support it fully. In the interest of fairness, I should say that there are judges on my court who dislike the system and think that it has some regional disadvantages. My personal experience, however, is that we get excellent law clerk applicants no matter what the plan is.

11. 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. That proposed rule appears to mirror in substance a local rule currently in effect in the Tenth Circuit. Where do you stand on the question of allowing citation to "unpublished" opinions? And 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?

The Tenth Circuit local rule on unpublished opinions is, as I understand it, consistent with the proposal being considered. I like our rule. I think it is important to have the opportunity to cite to unpublished opinions but that they should not be precedential. I, however, make it a personal practice rarely to cite to unpublished cases in my opinions.

I do have a personal "gripe" about unpublished opinions. Unpublished decision should be very short and limited strictly to the facts of that particular case. To the extent that they add any new gloss to the law, I think the opinion should be published.

12. What three suggestions would you offer to attorneys concerning how to improve the quality of their appellate briefs?

Suggestions to improve the quality of briefs: (1) Make them concise; (2) work on clarity; and (3) do not obfuscate.

13. Similarly, with respect to oral argument, what suggestions can you offer that might help a good appellate advocate become even better?

My suggestions are much the same as above. I would only add do not argue as if arguing to a jury. Have a relaxed conversation with the bench and answer all questions directly.

14. Perhaps it is simply my misimpression, but while certain federal appellate courts appear to be in the national headlines regularly, the Tenth Circuit does not seem to be one of them. In researching your court, one of the themes that I found regularly repeated was the court's very high level of collegiality, a trait that would be welcome, but is not currently always found, throughout the entire federal appellate court system. What to your mind distinguishes the Tenth Circuit from the rest of the federal judicial system, do you think your court's relative anonymity in the minds of political operatives at the national level has helped in gaining the confirmation of four judges during George W. Bush's tenure as President, and perhaps you can say a few words about how your circuit reacted to and rebounded from one of the greatest tragedies ever perpetuated against a federal judicial building when the Alfred P. Murrah Federal Building was attacked in April 1995.

The Tenth Circuit has worked very hard to maintain a high level of collegiality among our judges. For the most part, I think we have been very successful. It is important to stress that this collegiality is not about agreeing or even necessarily getting along. It is instead about fostering an atmosphere of mutual respect and understanding, encouraging open dialogue, and facilitating opportunities for the judges to be together to discuss both legal and non-legal issues. Much has been written about the importance of collegiality on an appellate court, so I will not repeat that. I will, however, say that I believe that after almost eighteen years of watching this process, I am increasingly convinced that this elusive but important concept of collegiality makes a difference in the quality of the law. We work very hard at attempting to find consensus. We make suggestions about opinions -- both when we are and are not on the panel. We exchange views openly. By and large, the exchange is refreshingly professional, thoughtful, and careful.

We engage in several practices that help maintain collegiality. We schedule all of our oral argument sessions for the same week when all of the judges in the circuit gather in Denver. We have regular administrative meetings together and many social opportunities that most or all of the judges attend. Although some might label this superficial, we find it a very helpful way to become better acquainted and to understand more fully the perspective of each judge. Kindness and professional behavior is simply easier among friends.

I am somewhat surprised that you have asked about our court's anonymity. When you look back over some of the major cases of the last decade, and indeed of the last century, it is important to be reminded that the Tenth Circuit was the place where Brown v. Board of Education arose, where the Oklahoma City bombing case arose, and the no-call list cases were filed -- to just cite a few! I prefer to think of our reputation not as anonymous but as one that is low on controversy. The collegiality to which I have referred saves us from some of the internal court issues that have plagued other circuits. The fact that we have recently added four new judges speaks more, it seems to me, about good nominees and good political support than about anything internal to the court.

Perhaps the darkest day in Tenth Circuit history was the day of the bombing of the Alfred P. Murrah Federal Building in 1995. The namesake of the building, Alfred P. Murrah, was one of the most revered federal judges in our circuit during his time on the bench. I remember exactly where I was when I learned about it -- just as I do those infamous dates of the Kennedy assassination and September 11. We all lost friends. Our judges were profoundly affected. Indeed, Judges William Holloway and Robert Henry, both from Oklahoma, were personally affected. In some ways, we knew ahead of the rest of the nation of the horrors of terrorism. I think the experience of that day and the resulting litigation had a sobering and thoughtful impact on all of the courts in the circuit. We understand with great clarity the enormous responsibility that courts have to make sure that we accord defendants all of the constitutional and statutory protections while, at the same time, providing the victims a full and fair adjudication of even the most egregious criminal acts. All of the judges involved in the resulting litigation bore their responsibility with great dignity and seriousness.

15. I understand that you are working with federal judges throughout the nation to encourage increased contact between the judiciary and the press. What is the goal of that effort, and in what ways do you currently view the press as doing a good or not so good job of covering the courts? Also, if I may return to the topic of judicial misconduct complaints, some have criticized the process of investigating and resolving such complaints as too cloaked in secrecy. Do you agree?

Working with the Freedom Forum and the First Amendment Center, the Committee on the Judicial Branch has hosted small colloquia around the country between judges and journalists. These have been very successful meetings in which prominent judges and journalists have convened to discuss issues of common interest to the press and the judiciary. As I indicated above, in my view, the public's perception of the role of judges and the judicial process is exceedingly important to continuing respect for and understanding of the law. Thus, we have been working with journalists around the country to understand each other's vantage points on covering court proceedings and court issues.

Coverage of court issues varies considerably around the country. In some media markets, court coverage is a very high priority while in others less so. In general, I think the national coverage of the United States Supreme Court is reasonably good. I do not, however, know what the Justices would say about that. We find that coverage of the courts is particularly difficult for the broadcast media because of the need for "sound bites" in broadcast. These short sound bites are rarely long enough to give the proper context to the complex issues that courts address. On the whole, we have found these judge/journalist seminars to be very effective ways for judges to learn more about the concerns of journalists and vice versa.

On the issue of judicial misconduct complaints, I think it is exceedingly important that these continue to be done internally and without any publication. The vast majority of judicial misconduct complaints are meritless or are more properly the subject for a motion for disqualification rather than a judicial misconduct complaint. In either case, it would be an extreme disservice, both to the judge and to the system, to publicize the fact of a complaint. Any publication would give an entirely misleading sense of the seriousness of the issue. In those misconduct complaints that have merit and are not related to the merits of litigation, chief judges and judicial councils are involved in very important investigation and analysis. It is many times most constructive for the judge and the council to have a full and candid evaluation that occurs principally between the chief judge and the judge involved. Very few of these misconduct complaints would ever reach the level of impeachable offenses. Thus, the interests of the public and the interests of the judiciary are best served by constructive remedial action rather than by any public disclosure. Finally, and perhaps most important, our system of government requires an independent judiciary. Thus, it falls to the judiciary to make certain that it investigates fully every complaint, but that it does so without compromising the independence of a judge or of the judiciary as a whole.

16. Recently there has been press coverage that cutbacks in the federal judiciary's budget have necessitated and will necessitate the elimination of non-judicial positions within the federal court system. Can you explain whether these job losses are expected to impact the ability of the federal courts to deliver justice in a timely and cost-effective manner, and what effort, if any, is underway to try to obtain additional funding from Congress to avoid these or other threatened cuts?

The federal judiciary is exceedingly concerned about its budgetary status for 2004. The Budget Committee, under the able direction of Judge John Heyburn, has worked tirelessly to try to communicate with Congress about the essential nature of some of the tasks of the judiciary. A current supplemental request is pending. If there are job losses, we will make every attempt to assure that the federal courts can deliver justice as fully and effectively as possible, but it is inevitable that budgetary cuts will impact service. For example, it is essential that we continue to be able to provide defense counsel where necessary, to provide adequate security, to have safe and efficient courtrooms, to provide probation and pretrial services, and to keep up with the civil caseload. These are very large orders in the current budgetary climate.

17. You previously served on the U.S. Sentencing Commission, which among other things is involved in issuing and amending the U.S. Sentencing Guidelines. Some current and former federal judges have spoken out in opposition of the so-called "Feeney Amendment," a recently-enacted law that has been perceived as further restricting judicial discretion under the Sentencing Guidelines. As simply a matter of policy, what are your views on that amendment?

My immediate concern with the Feeney Amendment is more process-oriented than substance. I share the concern of the Judicial Conference that the Feeney Amendment was promulgated without sufficient consultation with the judiciary. As I understand it, the appropriate committees of the Judicial Conference and the judiciary in general were not informed prior to the promulgation of the Feeney Amendment. As with almost all matters affecting the courts, I firmly believe that the nation is best served when all three branches of government work together prior to the passage of statutory changes -- particularly those that affect the criminal justice system so profoundly.

I also share the concern expressed by many of my colleagues regarding the collection of downward departure information on individual judges. Although it is important for Congress to have information about how the Sentencing Guidelines operate as they make legislative judgments on possible amendments to the Guidelines, my experience is that the Sentencing Commission fulfills this function ably. I believe that we should view the authority of Congress to legislate and gather information in the important context of the duty of every judge to perform his or her judicial duties without a hint of intimidation or retribution. Judges cannot be removed from office for their judicial acts. Systematic collection of judge-specific data carries the unfortunate implication of some effort to affect the judge's performance of his or her judicial duties. Certainly, Congress would have been better informed about this important concern if a dialogue between Congress and the Judiciary had occurred prior to the passage of the Feeney Amendments.

18. During your tenure on the Sentencing Commission, a proposal was considered to eliminate the disparity in sentencing between drug offenses involving crack cocaine and powder cocaine. As I understand it, a majority on the Commission agreed with the proposal, and you were among a minority that dissented in favor of retaining some degree of longer sentences for offenses involving crack, as opposed to powder, cocaine. These disparities in sentencing have been challenged as racially discriminatory in their impact. Would you please explain the arguments for and against having longer sentences for crack-related offenses, and also whether you continue to believe that crack-related offenses are deserving of longer sentences under the Guidelines.

Rather than respond, I simply provide you a copy of that dissent. [The dissent can be accessed here, at "How Appealing Extra."]

19. What is the proper pronunciation of your name?

I have been asked often about the derivation and pronunciation of my last name. Tacha is my married name. My husband's family is Czech and the surname is of Czech derivation. We are told that the name originally in Bohemia was spelled "Ptacha." At some point during their immigration to America, the family dropped the "p" but kept the "c." The "c" is silent so Tacha is pronounced "Ta-ha." I have wished many times that they had dropped the "c" out of it as well. It would have made pronunciation much easier. My maiden name is Reece – a good Welsh name which is much easier to pronounce! My first name also confounds many people. Rather than being a misinformed corruption of the French "Danielle," it is a very Americanized combination of my two grandmothers' names: "Dean" and "Nell"!

20. What do you do for enjoyment and/or relaxation in your spare time, and please be sure to mention your enthusiasm for Kansas Jayhawks basketball?

Everyone who knows me knows that I am an absolutely fanatical Kansas Jayhawk basketball fan. I attend every game that I possibly can and follow the facts and lore of college basketball with great commitment. In my spare time, I am involved in a number of community activities. I am currently chairing the sesquicentennial celebration of Kansas's entrance into the United States as a territory. With the passage of the Kansas-Nebraska Act in 1854, the Kansas territory became the site of some of the bloodiest early battles that predated the Civil War. Several East Coast newspapers described Kansas as the crucible in which the Civil War boiled. Indeed, in 1863, Quantrill's Raiders came to Lawrence and burned the entire city down and murdered countless people. This is also the year of the fiftieth anniversary of Brown v. Board of Education, which will be commemorated throughout the year 2004. I am enjoying working with Kansas's rich history and with the many people involved in that endeavor. I have been active in many arts and educational organizations and currently serve on the Board of Trustees of the University of Kansas Endowment Association and am actively involved in the work of the United Methodist Church. In my true spare time, I love to cook, get away to the lake, and just be with my husband and children whenever I can.
Posted at 00:00 by Howard Bashman



Sunday, January 04, 2004
Elsewhere in Sunday's newspapers: The Los Angeles Times today contains an article from The Associated Press headlined "U.S. Deportees Cart Crime to Native Lands; More than 500,000 have been banished under 1996 law. The resulting havoc abroad is overwhelming police in their 'home' countries." An article reports that "President's Interpreter in Fight on Cuba Ban." And Kenneth Roth has an op-ed entitled "In Bush's America, Rules of War Trump Civil Law; Applying battlefield justice to the murky struggle against terrorism is dangerous--and possibly illegal." Meanwhile, Saturday's newspaper contained an article headlined "Smokers Face New 20-Foot Buffer Zone." An editorial was entitled "File Sharers: Don't Crow Yet; The recent court ruling isn't the latest word on digital copying. Congress will have to weigh in." And letters to the editor appeared under the heading "Tired of the Apologists for Illegal Immigrants."

The Boston Globe today reports that "Marriage debate thrusts Rehoboth lawmaker into spotlight; House veteran leading bid to ban same-sex weddings." In other news, "Sunday alcohol sales ban ending; Puritan policy is lifted at noon in most areas." Columnist Jeff Jacoby has an op-ed entitled "Congress helps itself to another pay raise." Meanwhile, Saturday's newspaper contained an article headlined "City to hire 6 rejected white firefighters; Hiring follows challenge to affirmative action plan." And Patrick Guerriero had an op-ed entitled "A conservative ruling on gay marriage."
Posted at 22:30 by Howard Bashman



"News Groups Seek to Open Secret Case": Linda Greenhouse will have this article in Monday's issue of The New York Times. More details are available in my post on this subject from Friday night.
Posted at 22:25 by Howard Bashman



"Whoa! Speaker Hastert stiff-arms the Supremes": This item appears in the "Washington Whispers" section of U.S. News and World Report for Monday, January 12, 2004.
Posted at 22:20 by Howard Bashman



"Council prayers spark debate": The Daily Times today provides this report from Salisbury, Maryland.
Posted at 20:57 by Howard Bashman



"Judges honor ex-governor; Deukmejian's award upsets many who recall '86 vote": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 20:55 by Howard Bashman



In just over six hours from now: At midnight I will be posting online here the January 2004 installment of "20 questions for the appellate judge" featuring Tenth Circuit Chief Judge Deanell Reece Tacha. Not only will her answers reveal the correct pronunciation of her name, but they also reveal an extraordinarily thoughtful and interesting person. Upon reading this interview, I'm sure you will agree with me that it qualifies as one of the best yet.

By the way, this month's interview is the twelfth monthly installment of the "20 questions for the appellate judge" feature. To mark the feature's one year anniversary, February's interviewee will be Ninth Circuit Judge Stephen Reinhardt. I will soon begin soliciting interview questions from this blog's readers for Judge Reinhardt.
Posted at 17:55 by Howard Bashman



"Lionel Tate signs papers agreeing to plea to second-degree murder": The Associated Press provides this report from Florida.
Posted at 17:54 by Howard Bashman



"Death Row prisoner ponders life in memoir; Death Row inmate Bill Van Poyck writes of his squandered life. His one-time partner in crime was beaten to death by prison guards and he waits to hear whether his appeal will be heard." This article appears today in The Miami Herald.
Posted at 17:53 by Howard Bashman



"Plenty of leads in prosecutor's slaying; Investigators find no evidence death was job-related, as family suspects": The Associated Press today provides this report.
Posted at 16:15 by Howard Bashman



From this morning's broadcast of NPR's "Weekend Edition - Sunday": This morning's broadcast contained the following reports (Real Player required): "Man Sues to Use 'Queer' in Corporate Name" and "Schorr Analysis: Ashcroft's Recusal."
Posted at 16:10 by Howard Bashman



Tonight on the CBS News program "60 Minutes": A segment described as "More Than They Deserve -- Judges are now protesting the long jail sentences that mandatory-minimum laws mandate they give minor drug criminals, especially since the kingpins that the law really meant to target often get less time. Ed Bradley reports."
Posted at 16:05 by Howard Bashman



"Up the creek: A Supreme Court water case could muddy up Arizona's resources." This editorial appeared in yesterday's issue of The Arizona Republic.
Posted at 16:04 by Howard Bashman



"Case's verdict shows truth no certain shield for media; Journalists are worried after the facts don't save a Pensacola newspaper from losing a 'false light' suit." The St. Petersburg Times today contains this report.

Today that newspaper also contains an article headlined "The collision: One family calls the crash an accident, the other insists it was a crime. With prosecutors about to decide, somebody's going to get hurt. Again." And columnist Robyn E. Blumner has an op-ed entitled "Our right to be left alone."
Posted at 15:58 by Howard Bashman



"Juvenile court judge probed; Fulton jurist's daughter, 4, was found in street": This article appeared yesterday in The Atlanta Journal-Constitution.
Posted at 15:55 by Howard Bashman



"Church vs. State: A Fort Worth pastor says he is entitled to represent his congregants in legal matters. A Texas Supreme Court panel disagrees." This article appears in today's edition of The Fort Worth Star-Telegram.
Posted at 14:02 by Howard Bashman



In news from Australia: The Sydney Morning Herald reports in Monday's issue that "High Court drowning in flood of migration cases." The Telegraph (UK) today reports from Sydney that "Bequest for 'white babies' is not racist, rules judge." The Sydney Morning Herald previously reported on this matter in an article headlined "Racial bequests not quite black and white."
Posted at 14:00 by Howard Bashman



"Hillary Clinton dismissed, again, from Flowers' lawsuit; Judge rules conspiracy claim against former first lady ran out of time": This article appeared in yesterday's issue of The Las Vegas Review-Journal.
Posted at 12:08 by Howard Bashman



"Victims of molesters relive pain after ruling": You can access here one of several items published today in The San Jose Mercury News in connection with the U.S. Supreme Court's ruling late last June in Stogner v. California. Other related items appear under the headlines "Molestation cases affected by ruling" and "28 go free" (in just one California county).
Posted at 12:00 by Howard Bashman



"Alabama wants to execute Malvo": The Birmingham News today contains this report.
Posted at 11:58 by Howard Bashman



"Lawyers' fees come under fire; Opponents of the current system are attempting to rein in attorneys' contingency fees in Florida and at least 13 other states." This article appears today in The Miami Herald. And in other news from Florida, The Palm Beach Post reports today that "