How Appealing

Wednesday, March 31, 2004
In Wednesday's newspapers: In The New York Times, Adam Liptak reports that "Prosecutions for Perjury in Legislative Settings Are Unusual." In related news, Neil A. Lewis has an article headlined "Behind the Privilege That in the End Bowed to Politics." In same-sex marriage-related news, "Amendment Isn't Needed, Marriage Law's Author Says" and "New Pall Falls on Gay Wedding Hopes." An article reports that "Clarett's Suit Against the N.F.L. Is Headed to the Court of Appeals." In business news, "Internet Chatter: What's With Juror No. 4?" And Michael Kazin reviews the book "Freethinkers: A History of American Secularism" in an essay entitled "In America's Long Culture War, Under God or Under Citizens?"

The Washington Post, in same-sex marriage-related news, contains articles headlined "Marriage or Union? Mass. Gay Rights Fight at Early Stage; Both Sides Honing Political Strategies" and "For Some, A Sanitized Movement; Activists: Something Lost In Fight for Gay Marriage." An article reports that "Court to Expedite Clarett Appeal." And in business news, "Calmer Tyco Jury Reviews Evidence; No Signs of Acrimony As Testimony Reheard."

The Christian Science Monitor contains an article headlined "Gay marriage vote: who won and lost; The complexity of the Massachusetts decision symbolizes a nation locked in marriage ambivalence." And in other news, "Guantanamo holds family at bay; Mother, lawyer, try to learn more about Kurnaz, one of an estimated 20 European detainees at Camp X-Ray."

USA Today reports that "Mass. attorney general refuses to seek stay of gay marriages."

The Boston Globe, in same-sex marriage-related news, reports that "AG sees gay marriage limit; Says law bars most out-of-staters"; "Reilly says Romney lacks legal argument for a stay"; and "House is urged not to pursue amendment; 1996 marriage act is enough, its author says." In other news, "Drive-by shooting conviction tossed out." And columnist Scot Lehigh has an op-ed entitled "Reilly wins Romney duel."

The Los Angeles Times, in same-sex marriage-related news, contains articles headlined "Massachusetts Gears Up for Gay 'I Do's'; There's a 'sense of urgency' that the right to wed, which goes into effect May 17, could be brief if a constitutional ban becomes law"; "'I do' waits for 'We can'; Straight couples use their own wedding plans and relationships as catalysts for change in marriage laws"; and "A knot tied in many ways; Anthropologists and historians point out that the history of matrimony is quite fluid. The constant? Economics." Henry Weinstein reports that "Texas Study Challenges 'Violent Behavior' Predictions; Expert witnesses called by the state were wrong 95% of the time in making such forecasts in capital cases, according to the report." In business news, "FCC to Seek Delay in Phone Case, Sources Say." In sports news, "It's Not a Final NFL Draft Yet; Federal appeals court schedules an expedited hearing in the Clarett case, and a ruling in the league's favor would put Mike Williams in limbo" and "Ruling Might Leave Williams in Limbo." In local news, "Jackson Jury Secrecy Is Challenged; As the grand jury meets in secret again, a media attorney asks appeals court to ease Santa Barbara County D.A.'s restrictions on access to the panel"; "Details Are Disclosed in Case of Alleged Agent; Documents reportedly recount conversations of Katrina Leung with a spy agency official; She has not been charged with espionage"; "Life on a New Track Could Be Derailed by Sentencing Dispute; Legal battle centers on whether woman should serve 65 days"; "State Seeks Court Help on Power Refunds"; and "$2-Million Settlement Paid by Anaheim." Law Professor Jonathan Turley has an op-ed entitled "1 Intransigent Woman Doesn't Do Justice to '12 Angry Men.'" And letters to the editor appear under the heading "God, Atheism and Pledge of Allegiance."
Posted at 22:33 by Howard Bashman



Ten Commandments news: From Indiana, The South Bend Tribune reports today that "Ten Commandments appeal ahead; Replica removed from display of historical documents in the Elkhart County administration building."

From Missouri, The Bolivar Herald-Free Press reports that "Attorney hopes to settle Ten Commandments case."

From Tennessee, The Monroe County Advocate & Democrat reports that "County responds to ACLU lawsuit."

Finally, from Alabama, The Associated Press reports that "Senate votes for Ten Commandments display."
Posted at 22:29 by Howard Bashman



"2nd Circuit Mulls Privacy Rights in Computer Monitoring Case": law.com provides this report on a ruling that the U.S. Court of Appeals for the Second Circuit issued yesterday.
Posted at 22:22 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Judge Asks Doctor if Fetus Can Feel Pain"; "Senate OK's Bush Housing Pick Over Dems"; and "Muslim Army Chaplain Says Commander Biased."
Posted at 22:04 by Howard Bashman



"Court Tosses More Jail Time for Card Shark": David Kravets of The Associated Press provides this report on a ruling of the U.S. Court of Appeals for the Ninth Circuit that I earlier noted here.
Posted at 19:05 by Howard Bashman



In today's issue of The San Francisco Chronicle: Bob Egelko reports that "Top court expands authority of customs agents." And in other news, "Same-sex marriage foe assails constitutional ban; Barr says issue should be decided by states."
Posted at 17:55 by Howard Bashman



Published on April Fool's Day: Thursday's issue of The Courier-Mail of Brisbane, Queensland, Australia contains an article headlined "A judicial reprimand for himself." The article begins, "A judge who demanded to know the name of 'the idiot' who granted bail to a serial burglar discovered yesterday he was talking about himself."
Posted at 17:17 by Howard Bashman



"Martha Stewart Lawyers Seek New Trial": The Associated Press provides this report.
Posted at 17:11 by Howard Bashman



"A question of justice in Amish community": This article appeared Sunday in The La Crosse Tribune.
Posted at 17:00 by Howard Bashman



U.S. Court of Appeals for the Eleventh Circuit affirms trial court decision holding that the PGA Tour did not unlawfully monopolize the market for real-time golf scores: You can access today's ruling at this link.
Posted at 16:45 by Howard Bashman



"High court limits lawyer freelancing": Today's issue of The Salt Lake Tribune contains an article that begins, "The Utah Supreme Court on Tuesday prohibited lawyers from secretly doing work outside the firm they belong to." You can access yesterday's ruling of the Supreme Court of Utah at this link.
Posted at 16:30 by Howard Bashman



"Judge: File sharing legal in Canada." c|net News.Com reports here that "Sharing copyrighted works on peer-to-peer networks is legal in Canada, a federal judge ruled on Wednesday, handing the record industry a sharp setback in its international fight against file swappers." And The Toronto Globe and Mail reports that "Court sides with music swappers."
Posted at 16:22 by Howard Bashman



"Due process 'lite' on trial at high court": Columnist Robert Landauer had this essay yesterday in The Oregonian.
Posted at 16:11 by Howard Bashman



"High Court Considers Rules for Car Search": Gina Holland of The Associated Press provides this report.
Posted at 16:04 by Howard Bashman



"Former suspect persists in suit vs. police, Yale": The Yale Daily News today contains an article that begins, "Former political science lecturer James Van de Velde '82 will ask a U.S. District Court judge this week to reconsider the decision to dismiss his lawsuit against the New Haven Police Department and Yale, his attorney said Tuesday."
Posted at 14:28 by Howard Bashman



Criminal defendant's strategy of punching defense counsel in the face during trial fails to produce acquittal: The Philadelphia Inquirer provides this news update. Next up is the death penalty phase of the trial.
Posted at 14:12 by Howard Bashman



"Child prosecuted for child pornography -- of herself": Law Professor Eugene Volokh offers these thoughts on this news from western Pennsylvania.
Posted at 14:02 by Howard Bashman



"The Tale of BedRoc: The Arid Desert of Nevada, Justice Aharon Barak, a Dud Statute that Congress Repealed 40 Years Ago, and Four Trumps Five." Over at "SCOTUSblog," Marty Lederman offers this quite entertaining and informative discourse about today's U.S. Supreme Court ruling in BedRoc Limited, LLC v. United States. Marty's analysis begins, "This was the first -- and almost certainly the last -- occasion for the Court ever to consider, or even to mention in an opinion, the Pittman Underground Water Act of 1919, a miserable failure of a statute that Congress repealed 40 years ago." And later he explains, "This disagreement among the 'majority' paves the way for the plurality of four to prevail." It makes for a very interesting read.
Posted at 13:47 by Howard Bashman



"We must decide whether extraordinary eyesight may be considered a 'special skill' supporting an enhanced sentence in a casino card cheating scheme." So begins this opinion issued today, on behalf of a unanimous three-judge panel, by Ninth Circuit Judge Diarmuid F. O'Scannlain.
Posted at 13:30 by Howard Bashman



"Justices broaden FOIA privacy exemption": Tony Mauro has this news analysis online at the First Amendment Center.
Posted at 13:15 by Howard Bashman



The wire services are reporting: Anne Gearan of The Associated Press reports that "High Court Weighs Sex Harassment Case." In other news, "Ashcroft Returns to Work After Surgery."

Reuters, meanwhile, is reporting that "Court Tells U.S. to Review Mexican Death Row Cases" and "U.S. Attorney General Returns to Work After Surgery."
Posted at 13:08 by Howard Bashman



"Abortion doctors defend procedure": This article appears today in The Omaha World-Herald. The Lincoln Journal Star today reports that "Physician would defy abortion law" and yesterday reported that "Abortion sides meet in court." Bob Egelko has an article today in The San Francisco Chronicle headlined "Abortion law hits poor hardest, S.F. expert says; Head of city's largest clinic tells judge of fears." And in other news, The Houston Chronicle reports that "Challenge to abortion law goes to trial."
Posted at 11:22 by Howard Bashman



Ninth Circuit nominee William Gerry Myers III will soon become the seventh federal appellate court nominee of President George W. Bush to be filibustered in the U.S. Senate: The Casper Star-Tribune reports today that "Myers faces tough Senate approval." And an article in The Desert Sun is headlined "Dems fight 9th circuit court pick."
Posted at 11:11 by Howard Bashman



Today's lone U.S. Supreme Court opinion: The Chief Justice announced the judgment of the Court and delivered an opinion in BedRoc Limited, LLC v. United States, No. 02-1593, and the judgment of the U.S. Court of Appeals for the Ninth Circuit was reversed and remanded. Joining in the Chief Justice's opinion were Justices Sandra Day O'Connor, Antonin Scalia, and Anthony M. Kennedy. Justice Clarence Thomas issued an opinion concurring in the judgment, in which Justice Stephen G. Breyer joined. And Justice John Paul Stevens issued a dissenting opinion, in which Justices David H. Souter and Ruth Bader Ginsburg joined. You can access the oral argument transcript here. Fans of The Flintstones know, of course, that the name of their town ends with a "k."
Posted at 10:00 by Howard Bashman



"20 questions for the appellate judge" update: I am very pleased to announce that Senior Judge Milton I. Shadur of the U.S. District Court for the Northern District of Illinois will be the April 2004 interviewee. Anyone who wonders why a federal district judge will be April 2004's interviewee need merely do a simply Westlaw search to learn that Judge Shadur has sat by designation with panels of the U.S. Courts of Appeals for the D.C., First, Second, Third, Seventh, Ninth, and Tenth Circuits. I had the pleasure of arguing before Judge Shadur in the Third Circuit three years ago on behalf of ADT Security Systems (opinion here). Judge Shadur's "20 questions" interview is scheduled to appear online here on the morning of Monday, April 19, 2004.
Posted at 09:50 by Howard Bashman



On the agenda: At 10 a.m. today, the Supreme Court of the United States is scheduled to issue one or more opinions in argued cases.

The Senate Judiciary Committee hearing that had been scheduled for 10 a.m. today has been postponed. The lone appellate court candidate scheduled to testify was Eighth Circuit nominee William Duane Benton, who currently serves as a judge on the Supreme Court of Missouri. Judge Benton was among the dissenters in yesterday's 4-3 ruling in the Internet adoption case.

An executive business meeting of the Senate Judiciary Committee remains scheduled for tomorrow, which happens to be April Fool's Day. Insert your own joke here.

Finally, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit will hear oral argument today in the "beef checkoff" case. Stay tuned to find out whether beef's beef is found to be all sizzle but no steak. I'll link to the oral argument audio once the Ninth Circuit posts it online.
Posted at 09:30 by Howard Bashman



"A Middle Ground: Leave 'under God' in the pledge--and Howard Stern on the air." Alan Bromley has this essay today at OpinionJournal.
Posted at 09:30 by Howard Bashman



"A Federal Appeals Court Bars Release of 'Partial Birth' Abortion Records, And Offers an Interesting Perspective on Privacy Rights": Law Professor Michael C. Dorf has this essay today at FindLaw.
Posted at 09:29 by Howard Bashman



In today's edition of The St. Louis Post-Dispatch: Today's newspaper contains articles headlined "High court overturns adoption of Internet twins" and "Lawyers profit most in suit, defendant says."
Posted at 09:25 by Howard Bashman



Warren Richey is reporting: In today's issue of The Christian Science Monitor, he has articles headlined "When police can search your glove box; The high court hears the case of a man who left his car before police intercepted him and then entered his vehicle" and "In Vincent Foster case, court upholds privacy; The justices unanimously rule that four death-scene photos shouldn't be released."
Posted at 09:20 by Howard Bashman



"Bizarre Hoaxes On Restaurants Trigger Lawsuits": This article appeared yesterday in The Wall Street Journal. (Via "Obscure Store.")
Posted at 07:57 by Howard Bashman



In news from Michigan: The Detroit Free Press today contains an article headlined "Conservative majority is altering court's methods; Study shows state justices less likely to reinterpret laws." The article begins, "Four justices who joined the Michigan Supreme Court since 1997 form a solid, conservative majority, a Free Press analysis of cases decided in 2002-03 shows." And a related article is headlined "Highway ruling shows court's differences."
Posted at 07:45 by Howard Bashman



"Edwards judge resists lawyers' diagnosis": Columnist James Gill has this essay today in The Times-Picayune.
Posted at 07:43 by Howard Bashman



"Justice steps down in malpractice case": The Houston Chronicle reports here today that "A Texas Supreme Court justice has removed himself from a multimillion-dollar medical malpractice case involving a Houston lawyer who supported the justice's primary opponent."
Posted at 07:40 by Howard Bashman



"High court to mull academy's mullet case": This article appears today in The Pawtucket Times.
Posted at 07:35 by Howard Bashman



U.S. Supreme Court news round-up: In The New York Times, Linda Greenhouse reports that "Justices Hear Case About Foreigners' Use of Federal Courts" and "Justices Unanimously Bar Release of Photos From the Suicide of a Top Clinton Aide."

In The Washington Post, Charles Lane reports that "Court Hears Cases on Agents' Actions Abroad; U.S. Calls Laws Crucial in Terror, Drug Wars" and "Court Bars Release Of Foster Photos; Family's Right To Privacy Prevails."

In The Los Angeles Times, David G. Savage reports that "Abduction Lawsuits Likely to Be Thrown Out; The justices, in hearing the case of a Mexican doctor, indicate that they will avoid a ruling on the role of U.S. courts in international law"; "High Court Upholds Family Privacy in Death Photos; The justices rule 9-0 against forcing the government to release close-up photos of the body of a Clinton aide killed by a gunshot"; and "U.S. Supreme Court Upholds Searches of Vehicles at Borders; In restoring a drug smuggler's conviction, justices rule that inspections at points of entry are constitutional, regardless of their cause."

In The Boston Globe, Lyle Denniston reports that "Court weighs reach of rights law; Government says legal disputes clash with foreign policy."

The Washington Times reports that "Court considers foreigners' right to sue"; "Foster death photos protected"; and "Supreme Court upholds tank searches at border."

USA Today reports that "Government fights kidnapped doctor's suit" and "Justices deny access to photos of Foster's body; Unanimous ruling extends privacy rights."

And Anne Gearan of The Associated Press reports that "High Court to Weigh Quitting Under Duress."
Posted at 07:05 by Howard Bashman



"World Court: U.S. Violated Mexicans' Rights." The Associated Press reports here that "The International Court of Justice on Wednesday ruled that the United States violated the rights of 47 Mexicans on death row and ordered their cases be reviewed." You can access today's ruling via this link, and a press release is available here.
Posted at 06:35 by Howard Bashman



Tuesday, March 30, 2004
Elsewhere in Tuesday's newspapers: The Boston Globe, in same-sex marriage-related news, reports that "Vote ties civil unions to gay-marriage ban; Romney to seek stay of SJC order"; "Reilly gives governor a hurdle"; "A battle just begun for both supporters, foes; The opponents come face to face on Beacon Hill"; and "In crucial shift, governor sways 15 in GOP to support measure." In business news, "Tyco judge rejects motion for mistrial; But amid row over juror some fear tainted verdict." And an editorial is entitled "A step back."

The Los Angeles Times reports that "3 Trials Tackle Curb on Abortion; Cases challenging a new federal ban on late-term procedures are expected to turn almost solely on the dueling testimony of medical experts." An article reports that "Massachusetts Legislature Moves to Bar Gay Marriages; Lawmakers narrowly agree to amend the constitution but still face a long fight." In somewhat related news, "Acceptance of Gays on Rise, Polls Show; While 30 years' worth of surveys consistently show a majority of Americans against same-sex marriage, they also reveal some remarkable shifts in attitudes." In business news, "Disney the Winner in a Hunny of a Lawsuit; A long tussle over Pooh royalties ends with the judge accusing plaintiffs of stealing documents"; "In Advertising, Governor Accepts No Imitations; Schwarzenegger and his attorneys are vigilant in guarding the use of his image"; and "Judge Denies Pleas for Mistrial in Tyco Case; He rules that the naming of a juror by two newspapers won't preclude a fair trial." In international news, "Fox Tries to Balance Scales of Mexican Justice; The president's proposal would overhaul a system that is often slow and biased; But he may lack the necessary support from legislators." And in celebrity justice-related news, "Jury Is Hidden in Jackson Case; Judge eases ban on interviews or photographs of witnesses and jurors" and "Hearing Postponed; Bryant to Play Friday."

The Washington Times reports that "Partial-birth ban debated in court." In other news, "Massachusetts OKs marriage amendment." And Paul Craig Roberts has an op-ed entitled "Legal costs of terror war."

Finally for now, USA Today reports, in same-sex marriage-related news, "Gay marriage ban advances; But Massachusetts amendment would allow civil unions" and "Mass. battle enters its next phase; Gay-marriage votes will be election issue."
Posted at 23:23 by Howard Bashman



"Defense calls jury prospect a perjurer; Woman accused of lying to try to get on murder case panel": Wednesday's issue of The San Francisco Chronicle will contain this article.
Posted at 23:19 by Howard Bashman



"Guv to state cops: Find out if I was speeding; Rendell asks probe of reports of 100-mph jaunts": This article appears today in The Philadelphia Daily News.
Posted at 23:07 by Howard Bashman



Available online from law.com: Tony Mauro reports that "High Court Struggles With Alien Tort Statute" and "High Court Takes On Key Employment Law Issues." Jonathan Groner has an article headlined "Miranda Warning: Hardball on the Hill; Shunned over Judiciary Committee memos and out of a job, Manuel Miranda fires back." And in news from California, "Microsoft Settlement Getting Another Look."
Posted at 23:04 by Howard Bashman



Access online a copy of the letter that the Leadership Conference on Civil Rights sent to CBS News to complain about the "60 Minutes" segment on Fifth Circuit Judge Charles W. Pickering, Sr.: The letter can be viewed at this link. The group also issued a press release entitled "Civil Rights Coalition Outraged by Biased Reporting of '60 Minutes' Reporter."
Posted at 23:00 by Howard Bashman



"Reps question justice’s ethics": Wednesday's issue of The Hill will contain an article that begins, "In an unusual move, a group of Democratic congressmen has challenged the ethics of a U.S. Supreme Court justice."
Posted at 22:57 by Howard Bashman



"Supreme Court says Oklahoma's anti-cockfighting law is valid": The AP provides this report on a ruling that the Supreme Court of Oklahoma issued today.
Posted at 22:55 by Howard Bashman



"Michigan attorney general plans appeal of court ruling on affirmative action petition": The Associated Press offers this coverage.
Posted at 22:53 by Howard Bashman



"NFL granted expedited appeal on Clarett ruling": CNN/SI provides this report.
Posted at 22:50 by Howard Bashman



"Supreme Court hears physician's case on suing U.S., citizens": This article will appear in tomorrow's issue of The Dallas Morning News.
Posted at 22:30 by Howard Bashman



"Supreme Court Denies Release of Foster Photos": NPR's Nina Totenberg had this report (Real Player required) on tonight's broadcast of "All Things Considered."
Posted at 19:30 by Howard Bashman



"Coalition: News segment on Pickering distorted." This article appears today in The Clarion-Ledger. According to the article, the organization in question is complaining that this past Sunday's "60 Minutes" segment on Fifth Circuit recess appointee Judge Charles W. Pickering, Sr. was too favorable to Judge Pickering.
Posted at 19:26 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "Top Court Considers Mexican Doctor Case." And in other news, "Gay Marriage Plaintiffs in the Spotlight."
Posted at 19:20 by Howard Bashman



"Daschle Vows to Block All Bush Judicial Nominees": Reuters provides this report.
Posted at 19:18 by Howard Bashman



"High court sets aside adoption of `Internet twins'": The Associated Press reports here that "A mother who twice offered her twin daughters for adoption over the Internet, then changed her mind, was wrongly denied her parental rights, the Missouri Supreme Court ruled Tuesday while adding that the toddlers' subsequent adoption by foster parents should be set aside." You can access today's 4-3 ruling of the Supreme Court of Missouri at this link. The author of the majority opinion, Judge Richard B. Teitelman, will be the May 2004 participant in this blog's "20 questions for the appellate judge" feature.
Posted at 19:17 by Howard Bashman



"Justices Deny Lawyer's Bid for Foster Photos; A unanimous Supreme Court rules that former Clinton aide's family has privacy rights that trump the Freedom of Information Act, unless there's proof of wrongdoing": The Los Angeles Times offers this news update from David G. Savage.
Posted at 19:10 by Howard Bashman



"20 questions for the appellate judge" update: I am so very pleased to report that more than one volunteer came forward today to offer to serve as the April 2004 interviewee. I expect to be able to announce tomorrow who the April 2004 "20 questions" interviewee will be.
Posted at 18:11 by Howard Bashman



The U.S. Court of Appeals for the Fifth Circuit affirms a ruling of the U.S. District Court for the Northern District of California: You don't see this everyday.
Posted at 16:40 by Howard Bashman



Available online from NPR's "Day to Day": Today's broadcast included segments entitled "High Court to Review Alien Tort Claims Act"; "ATVs Get Supreme Court Hearing" (featuring Dahlia Lithwick); and "'Partial Birth Abortion' Ban Challenged."

And yesterday's broadcast included segments entitled "Massachusetts Lawmakers Ban Same-Sex Marriage"; "Tyco Jury: What Motivates the Holdouts?"; and "How to Pronounce 'Nevada.'"
Posted at 16:25 by Howard Bashman



"William G. Myers: An 'Activist' Lobbying from the Federal Bench?" The organization People For the American Way issued this press release yesterday.
Posted at 16:11 by Howard Bashman



"Protecting the Ban on Partial-Birth Abortion: A Trial Notebook by Jay Sekulow." This resource is available online via the Web site of the American Center for Law & Justice. (Thanks to Harry at "Fritz Feds" for the pointer.)
Posted at 16:06 by Howard Bashman



First Circuit issues en banc decision reinstating Section 2 Voting Rights Act challenge to Rhode Island redistricting: You can access today's ruling at this link.
Posted at 14:45 by Howard Bashman



"Doctors Testify in Three Abortion Trials": The Associated Press provides this report.
Posted at 14:44 by Howard Bashman



"Attorney general to gov: Find another lawyer." This article appears today in The Boston Herald. And in related news, "Romney may reap political gain in gay-wed fallout."
Posted at 14:40 by Howard Bashman



"Trials open on ban of late-term abortions; U.S. defends new law in S.F., 2 other cities": Bob Egelko has this article in today's edition of The San Francisco Chronicle.
Posted at 14:27 by Howard Bashman



Ten Commandments news: The Idaho Statesman reports today that "Tears precede arrests as the monument is moved; Ten Commandments stone finds new home at St. Michael's." And Reuters reports that "Boise Removes Ten Commandments from Public Park."

Meanwhile, from Indiana, The South Bend Tribune reports today that "Religious monument ordered to be removed; Judge rules Ten Commandments marker in Elkhart County building unconstitutional." And The Associated Press reports that "Judge orders removal of Ten Commandments; Elkhart County official is planning an appeal to bring back the display."
Posted at 14:20 by Howard Bashman



From today's broadcast of NPR's "Morning Edition": This morning's broadcast featured segments entitled "High Court Hears Foreign Abduction Case" (reported by Nina Totenberg); "Mass. Moves Toward Gay Marriage Ban"; "Tyco Jury Resumes Deliberations"; and "Winnie the Pooh Suit Thrown Out."
Posted at 12:40 by Howard Bashman



"Because of the Remmers decision, we suspend disbelief and proceed on the assumption, mandated by Remmers, that CONS is a religion." Surely prisoners would not invent a religion in an effort to obtain special privileges. See this ruling that the U.S. Court of Appeals for the Eighth Circuit issued today.
Posted at 11:45 by Howard Bashman



"State's law on sex act challenged; A woman charged under the statute for crimes against nature says sex laws are unconstitutional": The Daily Press of Hampton Roads, Virginia reports here today that "A Newport News woman charged with a felony for receiving oral sex in a car is challenging a state law that prohibits certain types of sex between consenting adults. A police officer says he found the 21-year-old woman in a parked car receiving oral sex from a man about 3 a.m. Jan. 29. Both were charged with a felony under the statute for crimes against nature."
Posted at 11:38 by Howard Bashman



So much for speculation about an evenly divided U.S. Supreme Court in the Pledge of Allegiance case: Because the Supreme Court of the United States did not announce today that the Ninth Circuit's ruling in the Pledge of Allegiance case was being affirmed by an equally divided Court, it would appear that a majority of the participating Justices agree on how the case should be resolved.
Posted at 11:30 by Howard Bashman



International Court of Justice at The Hague will deliver its judgment tomorrow in Mexico v. United States of America, a case challenging whether the USA can impose the death sentence on certain Mexican citizens: This press release announced the news. Much more information about this matter can be accessed via this page devoted to the case and via press releases available here.
Posted at 11:11 by Howard Bashman



"The Brethren (and Sistren)": Law Professor Eric Muller, at his "IsThatLegal?" blog, points to last week's instance of a brother and sister serving together in Wyoming on the same appellate panel. He wants to know whether that has ever happened before, and the fact that two brothers have previously served together on the same appellate panel is simply not responsive.
Posted at 11:09 by Howard Bashman



"Experts: Polozola's move rare, raises issues." The Advocate of Baton Rouge, Louisiana today contains an article that begins, "U.S. District Judge Frank Polozola's intervention in his own state civil case is virtually unheard of -- and raises the issue of whether he can remain impartial, several legal scholars and others said Monday."
Posted at 10:56 by Howard Bashman



"Lawyers: Search ruling merits high court review." The Clarion-Ledger today contains this report on a recent, controversial en banc decision of the U.S. Court of Appeals for the Fifth Circuit.
Posted at 10:52 by Howard Bashman



"Exxon verdict cut to $3.6 billion; Record jury award to Alabama is reduced, but it remains huge; oil company will appeal to state Supreme Court": This article appears today in The Mobile Register. The Dallas Morning News reports that "Exxon Mobil judgment cut 70% to $3.6 billion; Oil giant still plans to appeal award in Alabama fraud case." Reuters reports that "Alabama Court Cuts Exxon Mobil Penalty." And The Associated Press reports that "Judge Cuts Exxon Mobil Verdict to $3.6B."
Posted at 10:40 by Howard Bashman



The Supreme Court of the United States today issued two opinions in argued cases:

1. Justice Anthony M. Kennedy issued the opinion for a unanimous Court in National Archives and Records Administration v. Favish, No. 02-954, and the judgment under review was reversed and remanded. You can access the oral argument transcript here.

2. The Chief Justice issued the opinion for a unanimous Court in United States v. Flores-Montano, No. 02-1794, and the judgment under review was reversed and remanded. In addition to joining in that opinion, Justice Stephen G. Breyer issued a concurring opinion. You can access the oral argument transcript here.

Both of today's reversals came from the U.S. Court of Appeals for the Ninth Circuit.

In news coverage, Gina Holland of The Associated Press reports that "High Court Permits Foster Photos Withheld." The AP also reports that "Supreme Court OKs Gas Tank Border Searches." James Vicini of Reuters reports that "Court Bars Release of Vince Foster Death Photos" and "Supreme Court Allows Border Search of Gas Tanks."
Posted at 10:00 by Howard Bashman



"20 questions for the appellate judge" update: I have some unfortunate news to relay to fans of this blog's monthly "20 questions for the appellate judge" feature. Chief Judge Emeritus Boyce F. Martin, Jr. of the U.S. Court of Appeals for the Sixth Circuit, who volunteered back in November 2003 to be the April 2004 interviewee, reported yesterday that due to the illness of a close family member he currently lacks the time necessary to prepare responses to the written questions that I provided to him earlier this month. Please join me in sending wishes for a prompt and complete recovery to the person in question. Judge Martin remains interested in participating as a "20 questions" interviewee sometime in the future.

Through March 2004, there have been fourteen consecutive monthly installments of the "20 questions for the appellate judge" feature. Perhaps for some potential interviewees it is more difficult to plan to participate months in advance than it is to plan weeks in advance. In the hope of salvaging an April 2004 interview, the first federal or state appellate judge to volunteer before 6 p.m. eastern time today can become the April 2004 interviewee. I will provide the interview question in writing before the end of the day Friday, April 2, 2004, and answers will be due on or before Friday, April 16, 2004 for publication on Monday, April 19, 2004. If no federal or state appellate judge volunteers before 6 p.m. today, then there will be no April 2004 "20 questions for the appellate judge" interview. To volunteer, simply send me an email, a process that you can initiate by clicking here.
Posted at 09:40 by Howard Bashman



"Mothers' health at core of 'partial birth' case": This article appears today in The Omaha World-Herald.
Posted at 09:25 by Howard Bashman



In Tuesday's newspapers: The New York Times reports that "Trials Open Across Nation on Abortion-Procedure Ban." In same-sex marriage-related news, "Setback Is Dealt to Gay Marriage" and "What Marriage Means to Gays: All That Law Allows Others." In business news, "Judge Dismisses Mistrial Motion in the Tyco Case"; "Tyco Justice Is Known for Skills With People"; and "After 13 Years, Judge Dismisses Case on Pooh Bear Royalties." In local news, "Reporter's Widow Is Making Her Case for a 9/11 Payment" and "Expert Says He Can't Be Sure Williams's Shotgun Misfired." An editorial is entitled "Legal Actions Over Foreign Misdeeds." And Dolly Filartiga has an op-ed entitled "American Courts, Global Justice."

The Washington Post reports "In Mass., A Vote to Ban Gay Marriage; Constitutional Amendment Would Allow Civil Unions." In somewhat related news, "Md. House Passes Bill On 'Life Partners'; 103-30 Vote Shows Bipartisan Support." An article reports that "Frenzy Over Juror Won't Stop Tyco Trial; Papers Have Released Name; Judge Rejects Mistrial Motion." In international news, "American Custody Battle Crosses Borders; U.S. Citizens Living Abroad Forced Into German Court by International Agreement" and "Mexican President Submits Plan to Overhaul Justice System." And an article reports that "Judge Delays Lawsuit To Help Anthrax Probe."
Posted at 06:55 by Howard Bashman



"Courts abuse abortion law, justice says": This article appears today in The Montgomery Advertiser.
Posted at 06:40 by Howard Bashman



In news coverage from the U.S. Supreme Court: Linda Greenhouse of The New York Times reports that "Supreme Court to Consider Role of Intent in Age Bias" and "Supreme Court to Review Tax Dispute Over Judgments." Charles Lane of The Washington Post reports that "High Court Will Review Age Bias in the Workplace" and "Justices Weigh Challenge To Ala. Execution Method." David G. Savage of The Los Angeles Times reports that "Foreign Abduction Case Goes to Court; The justices today will consider whether a 1789 law allows victims of human rights abuses overseas to file lawsuits in U.S. courtrooms." The Birmingham News reports that "Execution method at issue; Cruelty case before Supreme Court could set precedent." The Salt Lake Tribune reports that "U.S. Justices debate their role in land-use issue." The Deseret Morning News reports that "SUWA-case implications have top court worried." The Pittsburgh Post-Gazette reports that "Top court agrees to hear Export man's gun case appeal." The Oregonian reports that "High court accepts tax case from state; The Oregon matter, consolidated with one from Michigan, raises questions about who should pay federal charges on settlements." The Clarion-Ledger reports that "High court to hear age bias case; Suit brought by JPD officers in '01." And The San Antonio Express-News reports that "Harrelson appeal rejected again."
Posted at 06:39 by Howard Bashman



Today at 10 a.m. we learn whether the Newdow Pledge of Allegiance case has been affirmed by an equally divided U.S. Supreme Court: If the Court is evenly divided, an order to that effect is likely to issue this morning. If the Court is not evenly divided, no such order will issue today. Stay tuned for complete coverage.
Posted at 06:15 by Howard Bashman



Monday, March 29, 2004
The Detroit News focuses on Detroit's terror trial: Today's newspaper contains articles headlined "Con man key to terror convictions; Feds initially didn't believe admitted liar, scam artist who later became star witness" and "Detroit defendants showed no defiance; Four terror suspects never confessed, were never belligerent and showed no signs of extremist beliefs." And yesterday's newspaper contained articles headlined "Fed missteps jeopardize terror case; Federal review finds government ignored own rules, withheld more than 100 documents from defense"; "Government leaks, remarks plagued case; Ashcroft, Justice Dept. sidestep federal judge's gag order leading to trial"; and "Infighting leaves Justice Dept. red-faced; Two key figures dumped in terrorist case accuse agency of politicking," along with a graphic headlined "Suspicious sketches."
Posted at 23:55 by Howard Bashman



Elsewhere in Monday's newspapers: USA Today contains an article headlined "Inmate: Injection would be cruel; Justices hear appeal today from convict who says procedure for his execution is unconstitutional." An article reports that "Nothing's certain as Mass. resumes marriage debate." In other news, "X-rated DVDs in vehicles spark outcry; 'Dirty driving' laws proposed." And letters to the editor appear under the heading "Pledge case is 'crazy.'"

The Boston Globe reports that "Round 3 on gay marriage today; Complicated moves on ban expected." An article reports that "SJC to weigh suicide's claim vs. Raytheon." And Cathy Young has an op-ed entitled "A tough loss for left in abortion war."

The Washington Times reports that "Kerry a firm foe of death penalty." And in other news, "Marriage, same-sex unions to be defined."

The Los Angeles Times reports that "West Hollywood Mayor Takes Stand for Gay Marriage; Speaking out in favor of same-sex unions, Jeffrey Prang registers as a domestic partner during City Hall ceremony turned political rally." An article reports that "Ex-Boxer Is Making a Comeback -- in Court." And letters to the editor appear under the headings "Pledge of Allegiance in the Land of the Free" and "Criminal Charges for Refusing Surgery."
Posted at 23:35 by Howard Bashman



Available online from law.com: Marcia Coyle reports that "High Court to Hear Alien Tort Claims Act Arguments." In news from the Second Circuit, an article is headlined "Hot Bench for Secret Files Appeal." Jonathan Ringel reports that "Miss Nude Contestant Stripped of Court Victory." And an article reports that "Tyco Jury Appears Back on Track After Mistrial Denial."
Posted at 23:31 by Howard Bashman



"There is admittedly something unsettling about a party bringing a case in a federal court, taking the case to final judgment, losing, and then invoking a jurisdictional defect that it created -- with the result that it escapes from the judgment and returns, albeit in a different venue, to relitigate the merits." That passage is found in "an eschatocol of sorts" at the conclusion of this decision that the U.S. Court of Appeals for the First Circuit issued today in an appeal presenting an issue that "could easily pass for a law school examination question in federal civil procedure."
Posted at 23:17 by Howard Bashman



A reader who supports the confirmation of Charles W. Pickering, Sr. to the U.S. Court of Appeals for the Fifth Circuit emails: In reaction to last night's "60 Minutes" broadcast, the following email arrived this evening:
Probably overkill at this point, but someone needs to point out the following in response to Schumer's "racial insensitivity" argument: Pickering's reputation in Mississippi is as a judge who seeks to mete out individual justice for both black and white defendants. No one would ever accuse him of being a fan of the Sentencing Guidelines (he wrote to Senator Kennedy during the PROTECT Act/Feeney Amendment debate decrying the rigidity of the Guidelines and encouraging Kennedy to continue to wage the fight to repeal Feeney), and in fact he is well-known as a judge who attempts to get around the Guidelines in an effort to help non-violent drug offenders. The following four cases were cited to no avail throughout his confirmation battle:

In the case of Clinton Myers, a 20-year old African-American drug defendant, Judge Pickering departed downward from a five year mandatory minimum to 30 months and recommended that Myers be allowed to participate in an intensive confinement program, further reducing his sentence.

Michael King, a young African-American drug defendant before Judge Pickering with no previous felony convictions faced a 40-month sentence under the Sentencing Guidelines. Pickering continued his case for a year, placed him under strict supervised home release for one year, and then used his good conduct during home release to establish the basis for a downward departure. Pickering ultimately sentenced him to 18 months of home confinement, 5 years probation and no prison time.

Zachary Barnes, a 20-year old African-American male faced 70-87 months under the Guidelines for a drug crime. Pickering downward departed to 48 months (twice the Government's recommendation) and recommended that he participate in intensive confinement, which further reduced his sentence. His lawyer called Judge Pickering's efforts a "life changing experience" for Barnes.

In the case of Tammy Carney, an African-American female facing a minimum sentence of 188 months, the government made a motion for a "substantial assistance" downward departure. Judge Pickering continued the case six times over a period of two and half years to allow the prosecution to develop a basis for a further downward departure. In the end, Judge Pickering departed downward and sentenced Ms. Carney to 63 months.

Pickering's record is replete with these kinds of sentences. The Dems may have a case that Pickering was an activist because he refused to follow the law by making these end runs around the Guidelines (many federal judges could be accused of that, and most Democrats think mandatory minimums for drug defendants are unjust anyway-- a topic for another day), but the notion that the only time he did an end run was to help a white cross burner is inaccurate and unfair.
More information on yesterday's "60 Minutes" segment can be accessed here.
Posted at 23:05 by Howard Bashman



"Three Courts Hear Challenges to Abortion Ban": The Los Angeles Times provides this news update. The New York Times provides an update headlined "U.S. Courts Hearing Challenges to New Abortion Law." The Chicago Tribune reports that "Arguments begin over abortion ban; 3 trials address federal law against disputed method." Reuters reports that "Abortion Ban Battled in Three Courts." Newsday offers an update headlined "Lawyer: abortion ban unconstitutional." law.com reports that "Federal Trial Opens Over Late Abortion Ban; 'Partial birth' statute challenged as failing to define 'criminal' acts." Michael Kirkland of United Press International has a news analysis headlined "'Partial-birth' ban at risk." The PBS program "NewsHour with Jim Lehrer" this evening offered a debate between Gloria Feldt, president of Planned Parenthood Federation of America, and Jay Sekulow, chief counsel for the American Center for Law and Justice. And online at Slate, William Saletan has an essay entitled "Face the Fetus: It's time for abortion rights advocates to stop denying reality."
Posted at 22:42 by Howard Bashman



Sometimes the Federal Sentencing Guidelines make perfect sense: Today the U.S. Court of Appeals for the Eleventh Circuit issued a decision holding that those who make counterfeit currency using plain paper are subject to more time in prison than those who bleach actual paper currency and then photocopy a larger denomination onto it.
Posted at 19:25 by Howard Bashman



"Killing reveals dangers of Web porn, experts say; Natel King traveled alone across North America for modeling jobs; A photographer has been charged with her death": This article appears today in The Philadelphia Inquirer.
Posted at 19:16 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Muslim Army chaplain appeals adultery, pornography reprimands"; "Gay Marriage Ban Passes 1st Step in Mass." and "Slave Descendants File $1B Lawsuit."
Posted at 19:10 by Howard Bashman



From today's issue of The Virgin Islands Daily News: Today's newspaper contains a series of related articles headlined "A year after drug bust, case against high-profile attorney in limbo; V.I. officials' handling of case raises question of preferential treatment for aggressive lawyer"; "Lawsuit accuses Rohn of malpractice, negligence; St. Croix private investigator accuses his ex-attorney of professional misconduct"; "From judges to opponents, Rohn has no shortage of harsh critics"; and "Rohn and colleague threaten Daily News reporter."
Posted at 19:00 by Howard Bashman



"The Pledge at the Court: Is 'under God' religious?" Charles C. Haynes has this essay online at the First Amendment Center.
Posted at 18:53 by Howard Bashman



Available online from National Public Radio: This evening's broadcast of "All Things Considered" included segments entitled "Abortion-Rights Groups Test Law in Courts"; "Mass. Legislators Approve Civil Unions"; "Brown v. Board: Schools, Race in 2004"; and "Change in Student-Aid Drug Law Urged" (Real Player required).

And today's broadcast of "Talk of the Nation" included segments entitled "Jury Dynamics" and "Saddam's Lawyer" (Real Player required).
Posted at 18:44 by Howard Bashman



"Where the Wild Things Are: The Supreme Court considers our wide open spaces." Dahlia Lithwick has this report online at Slate.
Posted at 17:56 by Howard Bashman



"When can foreigners sue in US courts? A case at the high court involving a Mexican doctor could affect multinational companies and the terror war." Warren Richey will have this article in Tuesday's issue of The Christian Science Monitor.
Posted at 17:46 by Howard Bashman



The U.S. Court of Appeals for the Eleventh Circuit decides an especially complex tobacco products liability appeal involving Alabama law: You can access today's ruling at this link.
Posted at 17:26 by Howard Bashman



Christopher Robin could not be reached for comment: The Los Angeles Times reports that "Judge Ends Lawsuit Against Disney; Jurist finds that plaintiffs obtained evidence improperly; The 13-year-old litigation claimed Disney withheld royalties for use of some Winnie the Pooh characters." The order terminating the suit can be accessed here.
Posted at 16:42 by Howard Bashman



Citizens for the Common Defence files amicus brief in support of federal government in the Hamdi v. Rumsfeld case: You can access the amicus brief, filed by attorney Adam H. Charnes, at this link. You can access a partial list of the group's members, including some names you are likely to recognize, by clicking here.
Posted at 16:02 by Howard Bashman



"Court insiders resent 'hellhole' label": This article appears today in The Telegraph of Alton, Illinois. Is this newsworthy because some courts would pride themselves in being known as hellholes?
Posted at 15:54 by Howard Bashman



"Barcinas nominated for judge post; Attorney says he would bring dedication to the bench": Tuesday's edition of The Pacific Daily News of Guam contains this article.
Posted at 15:46 by Howard Bashman



"Lawsuits change approach to Linux; Companies more cautious about use of open source": This article appears today in The San Francisco Chronicle.
Posted at 15:41 by Howard Bashman



"Motorists would be wise to make VROOM for guv": The Philadelphia Daily News today contains this front page story.
Posted at 15:36 by Howard Bashman



"Moreno '70 gives Calif. law insights": The Yale Daily News today contains an article that begins, "Three years after California Supreme Court Justice Carlos Moreno '70 decided to leave his position as a federal district court judge for a seat on his state's Supreme Court, some students at a Pierson College Master's Tea Friday afternoon and a Law School lecture Saturday morning asked him about what they said seemed to be a surprising career move."
Posted at 15:31 by Howard Bashman



An update on Stuart Buck's medical condition: His wife provides this information.
Posted at 15:14 by Howard Bashman



"Who is protected by our Constitution?" Law Professor Kermit Roosevelt has this op-ed today in The South Florida Sun-Sentinel.
Posted at 15:11 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Supreme Court to Weigh Execution Methods." And in other news, "Mass. Lawmakers Agree on Gay Marriage Ban" and "Tyco Jurors to Continue Deliberating Case."
Posted at 15:08 by Howard Bashman



Fourth Circuit joins the ranks of federal appellate courts that have rejected challenges to the Board of Immigration Appeals' new streamlined method of appellate review: You can access today's ruling by a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit at this link.
Posted at 14:51 by Howard Bashman



"Trials Challenging Abortion Law Open": The AP offers this report.
Posted at 12:12 by Howard Bashman



"Court to hear beef-checkoff appeal": The Associated Press provides this preview of a case to be argued Wednesday before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit.
Posted at 11:29 by Howard Bashman



From today's broadcast of NPR's "Morning Edition": This morning's broadcast contained segments entitled "Courts Hear Challenges to Abortion Method Ban"; "Gay Marriage Gains Spark Backlash"; and "Experts Debate Investing in Vice" (Real Player required).
Posted at 10:57 by Howard Bashman



Today's U.S. Supreme Court Order List: You can access the list at this link. The Court granted review in four cases, two of which have been consolidated for argument and disposition. "SCOTUSblog" provides a bit more details here.

In news coverage, Gina Holland of The Associated Press reports that "Court to Examine Age Bias in Workplace." The AP's Anne Gearan reports that "Court Takes Case on Felon Gun Owners." The AP also reports that "Court Rejects Harrelson's Father's Appeal." And Reuters reports that "Supreme Court to Consider Foreign Angle on Gun Law."
Posted at 10:00 by Howard Bashman



"Federal Abortion Ban Trials Begin Today in New York, San Francisco, and Nebraska": Groups opposing the federal law at issue have combined to put forth this press release. You can access the text of the "Partial-Birth Abortion Ban Act of 2003" at this link. And on November 5, 2003, when President Bush signed the legislation, I had a post entitled "Anticipating the court challenges to the 'partial birth' abortion ban."

Howard Mintz of The San Jose Mercury News today has an article headlined "New challenge to abortion; 3 courts review ban on controversial procedure." Newsday reports that "Abortion ban trial to begin today; Plaintiffs claim prohibition isn't constitutional because it doesn't include exceptions to allow procedures to preserve a woman's health." And The Associated Press reports that "Doctors to provide bulk of testimony in challenge to new abortion law."
Posted at 09:45 by Howard Bashman



On the agenda: At 10 a.m. today, the Supreme Court of the United States will issue an order list.
Posted at 09:40 by Howard Bashman



Some other reactions to last night's "60 Minutes" segment on Fifth Circuit recess appointee Judge Charles W. Pickering, Sr.: This round-up of reaction (Jonah Goldberg, "quasi in rem"; "TalkLeft"; and "Rebuttable Presumption") seems to confirm my prediction that last night's broadcast is unlikely to change anyone's opinion in this matter.
Posted at 09:30 by Howard Bashman



Please join me in wishing Stuart Buck a speedy recovery to good health: "InstaPundit" shares this sad news.
Posted at 07:57 by Howard Bashman



"Justices Take Up Ala. Case on Execution": Gina Holland of The Associated Press provides this preview of a case to be argued today at the Supreme Court of the United States.
Posted at 07:48 by Howard Bashman



"Abortion Ban Set for Battle in Three U.S. Courts": Reuters provides this report.
Posted at 06:58 by Howard Bashman



"Who needs the Pledge anyway? The Supreme Court case misses the point: We shouldn't require a daily oath to remind us to love our country." Professor Jonathan Zimmerman has this op-ed today in Newsday. Professor Diane Ravitch has an op-ed today entitled "To remove 'under God' is to rewrite U.S. history; Before the words went into the pledge, Jefferson, Washington & Lincoln used them" in The New York Daily News. And columnist Susan Ager had an op-ed entitled "Pledge of Allegiance deserves attention" yesterday in The Detroit Free Press. And today in The Detroit Free Press, columnist Dawson Bell has an op-ed entitled "'Lord' is restored in state papers; Granholm returns to established protocol."
Posted at 06:50 by Howard Bashman



"Justice can't duck doggerel; Winner targets Scalia": The winning entry in this week's limerick contest in The Charlotte Observer is:
'Twixt justice and ducks are no links,
And them that might think so are finks.
Or so the judge rages
For twenty-one pages.
Doth he protest too much? Methinks!
The Press Journal of Florida contains an editorial entitled "Off the bench: Sierra Club gunning for Scalia in case against Cheney task force." And The Yale Daily News contains an op-ed by Howard Kim entitled "Court recusal review is not a better option."
Posted at 06:45 by Howard Bashman



In Monday's newspapers: The New York Times reports that "In Tyco Trial, an Apparent Gesture Has Many Meanings." In related coverage, "Criminal Intent Seems the Focus of Juror's Doubt." An article reports on a "New Look at Boy's Sentence in Boatyard Fire." In local news, an article is headlined "In the Hands of a Troubled System." Editorials are entitled "A Misleading Fetal Violence Law" and "Pristine Wilderness, in Court." And letters to the editor appear under the heading "God and the Pledge: My Brother's Quest."

The Washington Post reports that "Three Judges To Hear Case On Abortion Procedure Ban." An article is headlined "U.S. Anti-Terrorism Tactic: Immigration." And an editorial is entitled "An Insulting Waste."
Posted at 06:25 by Howard Bashman



"Pickering defends race record in '60 Minutes' interview": The Associated Press provides this report.
Posted at 06:10 by Howard Bashman



Sunday, March 28, 2004
"Winemakers fight to mail their product; Supreme Court may hear case on shipping wine": The Traverse City Record-Eagle today contains this report.
Posted at 23:24 by Howard Bashman



"Abortion technique faces 2nd court test": This article appears today in The Omaha World-Herald.
Posted at 23:22 by Howard Bashman



"Gay couples win full rights to 'marriage'": The Observer (UK) reports here today that "The first laws giving gay people the right to 'marry' are to be unveiled this week in one of the most significant changes to Britain's social make-up since the passing of equal opportunities legislation in the 1960s."
Posted at 23:20 by Howard Bashman



In Sunday's newspapers: The New York Times reports that "Marine Defends Guantanamo Detainee, and Surprises Australians." In other news, "Disenfranchised Florida Felons Struggle to Regain Their Rights." An article reports that "Federal Judge Reopens Sentencing for Juvenile." The Week in Review section contains an article headlined "Turning In Terrorists: Take the Money and Run." In local news, "Children Alone and Scared, Fighting Deportation" and "Politics, Cash and Suspicion Intersect on the Farm." And the Magazine section contains an article headlined "Mayor With a Mission."

In The Washington Post, Law Professor Anne M. Coughlin has an op-ed entitled "ID, Please? Simple Question, Big Implications." And Steven M. Luxenberg has an op-ed entitled "The Impending Death of Honest Expertise."

OpinionJournal offers an editorial entitled "On Regents and Reality: A university's overseers try to stifle a colleague's dissent on racial preferences."

The Boston Globe reports that "GOP divided on marriage amendment; Republicans grapple with same-sex issue." In related news, "Backers of gay marriage hit the street for support." An article reports that "Iraqi detentions fuel anti-US sentiment." In other news, "Cellphones offer way to track the kids." And Joan A. Lukey has an op-ed entitled "Undermining due process."

The Los Angeles Times reports that "Shock-Jock Turns Tables and Takes an Oft-Complaining Listener to Court." An article reports that "Morals Law May Split Up Family of Newcomers; 1805 North Carolina statute means unwed couple must marry, send away kids or move." In other news, "Rumors Swirl Around Pop Star Jackson's Link to Nation of Islam." An article reports that "Grass Stains, Not a Pot Farm, Blamed for Bills; Carlsbad homeowners say their high use of electricity reflects a busy but boring family life; Police suspected other possibilities." Los Angeles Superior Court Judge Katherine Mader has an essay entitled "Conundrum: How Should a Judge Act If She Suspects Two Police Officers Have Testified Falsely?" And letters to the editor appear under the heading "Myers' Nomination for 9th Circuit Court."
Posted at 22:30 by Howard Bashman



"Foes of Federal Ban on Abortion Method Are to Argue Their Cases": This article will appear in Monday's issue of The New York Times.
Posted at 22:22 by Howard Bashman



Congrats to P.O.D.: For having its fine song "Boom" (Real Player or Windows Media) used as the soundtrack for a Pontiac commercial.
Posted at 22:18 by Howard Bashman



"Knock, knock -- but this one is no joke; Ruling erodes constitutional protections": This editorial about a recent en banc ruling of the U.S. Court of Appeals for the Fifth Circuit, which I previously noted here, appears today in The Delta Democrat Times of Greenville, Mississippi.
Posted at 22:10 by Howard Bashman



"No need to alter Supreme Court": The Toronto Star on Friday contained an editorial that begins:
With his surprise announcement that he's quitting the Supreme Court of Canada, Justice Frank Iacobucci has renewed the debate over how top judges are appointed. His early retirement in June coincides with the departure of fellow Justice Louise Arbour, who is taking a job as the United Nations High Commissioner for Human Rights.

That means two vacancies on the nine-member top court that Prime Minister Paul Martin will have to fill in the coming months.

In the last few weeks, Martin has been raising the spectre of having a parliamentary committee question, or review, the appointment of high court justices. He wants to make it part of his effort to address what he considers to be Canada's "democratic deficit."

This is a bad idea when it comes to the Supreme Court.

The court's judicial independence is not in question. Few people would find fault with the calibre of these jurists, who have served Canadians well in judgments on issues of national importance. Currently, justices are appointed at the Prime Minister's discretion. Appointees must be a judge of a provincial superior court or have 10 years at the bar of a province.

Some critics of the current process say it should be more open, or they want provincial lists of nominees. Others want to create non-partisan advisory committees, like those used by lower courts to select judges.

Alarmingly, some MPs are pushing for full public hearings where they can quiz candidates about their views on sensitive matters such as abortion and gay rights. Canada does not need to pursue this dangerous path, which leads to the merciless grilling involved in U.S. judicial confirmation hearings. It would deter worthy candidates, not attract them. Our judiciary already is seen as one of the best and most independent in the world.

As Chief Justice Beverley McLachlin said last year in a speech, the U.S. model of screening judges is fraught with danger because it will lead to partisan politicians demanding political answers from candidates, instead of focusing on their legal background and impartiality.
It speaks volumes that many Canadian judges and politicians see how politicized the judicial selection process has become in the United States and reject any intention of emulating it.
Posted at 20:52 by Howard Bashman



Tonight's broadcast of "60 Minutes" will contain an interview with Fifth Circuit recess appointee Judge Charles W. Pickering, Sr.: Due to college basketball, the show has begun half an hour late on the east coast. Judge Pickering's segment will appear second, and it will include excerpts from an interview with U.S. Senator Charles E. Schumer (D-NY). My earlier post on this subject, including links to news articles, can be accessed here.

Update: I thought that CBS News provided Judge Pickering with a very fair opportunity to tell his side of the story, and that on balance the segment was favorable to him. Nevertheless, I doubt that those who support the filibustering of Judge Pickering's nomination to a lifetime position on the Fifth Circuit will be persuaded by tonight's broadcast, which simply packaged into a fifteen minute segment many of the pro-confirmation arguments that Judge Pickering's supporters have been voicing for quite some time now.
Posted at 19:33 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Mass. Resuming Debate on Gay Marriage Ban" and "Ex-Military Lawyers Oppose Guantanamo Jail."
Posted at 18:58 by Howard Bashman



"Abortion resurfaces as wedge issue; Trials in three cities Monday challenge a ban on 'partial birth abortions,' while moves to criminalize harming a fetus gain." This article will appear in Monday's edition of The Christian Science Monitor. And The Associated Press reports that "Nebraska abortion provider again at center of abortion debate."
Posted at 18:56 by Howard Bashman



"'National interest' cited in sealing of Polozola medical records": The Advocate of Baton Rouge, Louisiana reports here today that "U.S. District Judge Frank Polozola has intervened in his own civil case, blocking a state judge from releasing depositions about his medical condition -- or making any other decisions -- after federal prosecutors argued doing so was in the 'national interest.'"
Posted at 18:53 by Howard Bashman



"Foul Justice: After 10 years, critics of Three Strikes may get another chance with voters." The current issue of LA Weekly contains this article. The publication also contains an excerpt from "Cruel Justice: Three Strikes and the Politics of Crime in America's Golden State," a new book by Joe Domanick. The excerpt is headlined "A Taliban-Type Law: Polly Klaas' grandpa on the evils of three strikes." In today's issue of The San Francisco Chronicle, a review of the book appears under the heading "Three strikes and counting: How the California sentencing law made it through the Legislature and what it's done to the state."
Posted at 18:30 by Howard Bashman



"An Assault On Roe? Opponents take incremental steps against abortion." The April 5, 2004 issue of Time magazine will contain this brief news item.
Posted at 18:28 by Howard Bashman



"Act rewrites the Constitution": This editorial appears today in The San Antonio Express-News.
Posted at 18:24 by Howard Bashman



"Mary Pawlenty balances judge, first lady roles": The Associated Press provides this report from Minnesota.
Posted at 18:23 by Howard Bashman



"1660s justice, American-style": Columnist Robyn E. Blumner has this essay today in The St. Petersburg Times.
Posted at 18:22 by Howard Bashman



"'Under God' started here first": The Chicago Sun-Times contains this article today.

In commentary, The Dallas Morning News today contains an editorial entitled "Leave It Be: 'Under God' should remain in pledge." The Birmingham News contains an editorial entitled "'Under God': Phrase in no way establishes a state religion." The Gainesville Times contains an editorial entitled "Pledge foe's fight shows intolerance of others' beliefs." Columnist Ellen Goodman has an op-ed entitled "Why make such a big deal of two little words?" in The Boston Globe. Philip Gailey has an op-ed entitled "'Under God' or not - it's a free country" in The St. Petersburg Times. And Gary Levvis has an op-ed entitled "'Under God' Under Scrutiny" in The Hartford Courant.
Posted at 18:15 by Howard Bashman



"Ethics 101 For The High Court": This editorial appears today in The Hartford Courant. And Law Professor Ronald D. Rotunda today has an op-ed entitled "The judicial recusal hunting" in The Washington Times.
Posted at 18:10 by Howard Bashman



"Bush has gotten over health-care fever": Clay Robison has this essay today in The Houston Chronicle.
Posted at 18:05 by Howard Bashman



"Canada Takes Up Gay Marriage Debate": Today's broadcast of NPR's "Weekend Edition - Sunday" included this segment (Real Player required).
Posted at 12:00 by Howard Bashman



"A Battle in the Brig: Ashcroft and Rumsfeld are fighting their own war over legal rights for detainees." This article will appear in the April 5, 2004 issue of U.S. News & World Report.
Posted at 11:27 by Howard Bashman



"Is Gay Marriage Ban Constitutional? Analysts, citing various state high court rulings, disagree on how the issue is likely to be resolved." Maura Dolan has this article today in The Los Angeles Times.
Posted at 09:08 by Howard Bashman



"Ford Stonewalls on Evidence, Judges Say; Ford has dragged its feet, misled plaintiffs and lied in a number of lawsuits, jurists in those cases contend; The automaker calls the incidents 'honest mistakes'": The Los Angeles Times today contains this report.
Posted at 09:06 by Howard Bashman



"Bush likely to opt for court nominee with Federalist ties; Right-wing legal society grows in political clout since 1982 inception": This article appears today in The Detroit News.
Posted at 08:55 by Howard Bashman



"Court tests set for 'partial-birth' abortion law; Federal judges in S.F., New York, Nebraska to hear testimony": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 08:53 by Howard Bashman



Saturday, March 27, 2004
In Saturday's newspapers: The New York Times reports that "Harm to Fetuses Becomes Issue in Utah and Elsewhere." In other news, "Michigan Judge Rules Against Foes of Preferences Based on Race." And an article reports that "Increasing Turmoil on Jury Threatens Tyco Trial."

The Washington Post reports that "Web Porn Law Struck Down; Va. Attempt to Shield Minors Hurts Adults, Appeals Court Says." In other news, Charles Lane reports that "Refusal to Testify Has Precedent." An article reports that "Notes Reveal a Tense Tyco Jury; Divided Panel to Return Monday, Try Again After Judge's Lectures." In local news, "Imam Not Allowed To Attend Va. Meeting" and "U-Md. Is Advised on Offensive Speech at Comcast Center." And letters to the editor appear under the heading "Prayer, Patriotism and the Pledge."

Online at OpinionJournal, William McGurn has an essay entitled "Tolerance and Pryor Restraint; Senate Democrats likely new attitude: Be 'open-minded' or else!"

The Boston Globe reports that "Ads indicative of emotions in marriage debate; Supporters, opponents use biting, unfiltered arguments." And in other news, "Clashing Tyco jury is sent home early; Judge is hoping to defuse tension, avoid impasse."

The Los Angeles Times reports that "Conviction Is Upheld Over Threat on Jet." In business news, "Still Split, Tyco Jurors Will Recess for 2 Days; After telling the judge discussions were not 'respectful,' panelists on the 5-month-old case ask for a break" and "Microsoft Runs Into Bundling Dilemma; It acknowledges security flaws in Windows, but its supporters say adding features could draw more antitrust scrutiny." In local news, "Prop. 13 Ruling Means No Tax Refund; Judges reverse a decision that could have made counties return $10 billion collected under their reading of the law"; "Judge to Reconsider Limits on the Media"; and "Professor Pleads Guilty in Porn Case; Andrew Roy Dyck, 56, a UCLA classics teacher, admits sending explicit e-mails to a 13-year-old Simi Valley girl." In international news, "Japanese Court Orders Compensation for 11 Slave Laborers; It is the first ruling that mandates payments for victims of the imperial army's program to force thousands of Asians to work during WW II." And letters to the editor appear under the headings "HMOs: Bush Backtracks on His Own Policies"; "Civil Rites vs. Religious Rites"; and "No Fun and Games for Bryant in Court."

Finally for now, The Washington Times contains an editorial entitled "Europe's Microsoft myopia." And Alvin Williams has an op-ed entitled "A vote for unheard victims."
Posted at 23:20 by Howard Bashman



For those tired of anti-Justice Antonin Scalia editorial cartoons, here's an anti-Justice Ruth Bader Ginsburg editorial cartoon: Thanks much to the reader who forwarded the link to this editorial cartoon published in The Orange County Register.
Posted at 22:59 by Howard Bashman



"Accountant 'Googles' Himself, Sues for Libel; Man Says Search Engine Returned 'Alarming' Information About Him, Firm": The AP provides this report from Los Angeles. The news has generated an interesting discussion at Slashdot.
Posted at 22:52 by Howard Bashman



"5th Circuit gives police new power in searches; Warrant unneeded in some instances": The Associated Press provides this report on an en banc ruling that the U.S. Court of Appeals for the Fifth Circuit issued last Wednesday.
Posted at 22:43 by Howard Bashman



"X-rated probate prosperous": Friday's issue of The Wichita Eagle contained this article.
Posted at 22:33 by Howard Bashman



Access the audio recordings of oral argument in the U.S. Court of Appeals for the Seventh Circuit in the appeal involving whether to enforce the federal government's subpoenas for abortion provider records: The oral argument audiotapes can be accessed via this link. A divided three-judge panel issued its ruling in this matter on Friday, as I first reported here.
Posted at 22:28 by Howard Bashman



"Judge won't halt petitions; Wayne move to block anti-affirmative action effort ruled premature": This article appears today in The Ann Arbor News.
Posted at 22:23 by Howard Bashman



"The road to the police state: Must Americans show their 'papers please'?" The Las Vegas Review-Journal contains this editorial today.
Posted at 22:01 by Howard Bashman



"Some Believers Cringe at 'Under God' Defense": This article appears today in The New York Times. Sunday's edition of The Dallas Morning News will report that "Pledge grading required; Kindergartners' ability to recite state, U.S. flag oaths to be evaluated." And Zoe Heller today has an essay in The Telegraph (UK) entitled "God doesn't have the best tunes."
Posted at 19:26 by Howard Bashman



"Signs pointing away from federal judgeship for Owen": Todd J. Gillman has this essay today in The Dallas Morning News.
Posted at 19:19 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Supreme Court to consider 1789 law used in human rights cases"; "High Court to Hear Sex Harassment Suit"; "Supreme Court to hear appeal from Alabama death row inmate"; "Courts to Hear 3 Abortion-Ban Challenges"; "State considering reprimand of appellate court judge"; "Natural gas litigation means millions to state, lawyers"; and "Culture Clash Awaits Congress."
Posted at 17:05 by Howard Bashman



"Emergence of Juror Leaves Tyco Judge In Legal Quandary": Sunday's edition of The New York Times will contain an article by Adam Liptak and Andrew Ross Sorkin that begins, "In touching her thumb to her forefinger and appearing to flash the 'O.K.' sign to defense lawyers Friday, a juror in the trial of two former Tyco executives may have made the most expensive hand gesture in the history of criminal law."
Posted at 16:55 by Howard Bashman



"Atheist's speech at UT is delayed by bomb threat; Man wants 'God' out of Pledge": The Toledo Blade reports here today that "A bomb threat yesterday at the University of Toledo delayed a speech by a California man who argued Wednesday in front of the U.S. Supreme Court that it is unconstitutional to have school children say 'under God' as part of the Pledge of Allegiance."
Posted at 12:25 by Howard Bashman



"Guinn appoints Douglas to Nevada Supreme Court": The Las Vegas Review-Journal reports here today that "Clark County Chief District Judge Michael Douglas on Friday was elevated to the Nevada Supreme Court, becoming the first black justice in the state's history."
Posted at 12:24 by Howard Bashman



"Judge arrested on drug charges; Lawrence County jurist's bond $1M": This article appears today in The Clarion-Ledger of Mississippi.
Posted at 12:22 by Howard Bashman



"Abortion records protected by court; Appeals panel rules for hospital": The Chicago Tribune today contains this report. The Chicago Sun-Times reports that "U.S. denied late-term abortion records." And The New York Times reports that "Appeals Court Backs Privacy of Hospital Abortion Records."

In related news, The Philadelphia Inquirer today reports that "U.S. denied abortion records; A judge ruled that patients' privacy would be violated; Hahnemann's files were sought in an abortion-ban legal battle."
Posted at 12:20 by Howard Bashman



"Democrats in the Senate Issue Threat to Block Court Nominees": This article appears today on the front page of The New York Times. The Washington Post reports that "Bush Warned on Appointments." The Washington Times reports that "Daschle threatens to block all Bush judicial nominees." And FOXNews.com reports that "Senate Dems to Block All Nominations."

A transcript of the remarks that Senate Minority Leader Tom Daschle (D-SD) delivered on the floor of the U.S. Senate yesterday can be accessed here. And a response from Senator John Cornyn (R-TX) begins here.
Posted at 09:50 by Howard Bashman



Friday, March 26, 2004
Elsewhere in Friday's newspapers: The Los Angeles Times reports that "Senate Passes Bill on Unborn; The measure would make it a separate offense to harm a fetus during a violent crime; Critics say it's a move to reverse abortion rights." In celebrity justice-related news, "Bryant Accuser's Mother Pleads for Quicker Process; Letter to judge details fears for daughter's safety and how the case disrupts her life"; "'Chairman' Banking on Kobe Bryant; Store owner got fixtures from hotel in which alleged assault happened and is planning a sale"; and "Jackson Grand Jury Pool Is Quizzed." In other news, Henry Weinstein reports that "Young Migrants Get Legal Break; A federal appellate court rules that juveniles in the custody of an adult can't be deported unless both have been given notice of the action." An article reports that "Lockyer Says S.F. Exceeded Its Legal Rights." In other local news, "Baca: More Cuts Mean More Will Go Free." And an editorial is entitled "Army Misfires in 'Spy' Case."

The Boston Globe, in same-sex marriage-related news, reports that "Licensing for gay marriages planned; But Romney aide says word is 'premature'" and "Church sets voter drive to fight gay marriage." And in other news, "Northeastern exonerated in student's death."

USA Today reports that "'Unborn victims' bill goes to Bush; Backers deny threat to legalized abortion." And in other news, "Accuser wants Bryant's rape trial ASAP; Cites death threats, says her life on hold."

Finally, The Washington Times reports that "Senate approves fetal-homicide bill."
Posted at 23:32 by Howard Bashman



"Petaphilia: The Great American Man-Dog Marriage Panic." The Village Voice offers this essay by Richard Goldstein.
Posted at 23:16 by Howard Bashman



"First black named to Nevada Supreme Court": The Associated Press reports here that "Chief Clark County District Judge Michael Douglas was chosen Friday to fill a Nevada Supreme Court vacancy and become the first black justice in the 140-year history of the state's highest court."
Posted at 23:05 by Howard Bashman



"Scalia Hunts Ducks; Ginsburg Lectures Feminists": Bloomberg News columnist Ann Woolner today has this essay.
Posted at 23:03 by Howard Bashman



Available online from law.com: Tony Mauro's latest "Courtside" column is headlined "Testy Justices, Blackmun Memories." Jonathan Ringel has an article headlined "Lawyer to Discipline Committee: Vertigo Made Me Miss Court." In other news, "9th Circuit Clears Man Who Faked Poverty to Win a PD." And an article reports that "Court Finds N.Y. Prosecutor Used Wrong Murder Charge."
Posted at 23:01 by Howard Bashman



"Lost in Translation": I'm only about a third of the way into this fine film, but already it's made me think of my previously favorite Scarlett Johansson film, "Ghost World." "Ghost World," in turn, has made me think of another, perhaps even better comic-book inspired film, "American Splendor," which I recently raved about here. And of course I first mentioned "Ghost World" here, on the seventh day of this blog's existence. The "Ghost World" DVD includes as a special feature the performance of the entire song "Jaan Pehechaan Ho," sung by Mohammed Rafi, from the Bollywood film "Gumnaam" (1965). And the dance sequence in the opening credits of "Ghost World" that accompanies the snippet from "Jaan Pehechaan Ho" also, without fail, reminds me of a certain dance sequence from "Pulp Fiction."
Posted at 22:28 by Howard Bashman



"Court Upholds Ruling on Abortion Records": The AP offers this coverage of a ruling that I first noted here. And a reader emails to note, "Judge Manion's concurring/dissenting opinion uses the acronym HIPPA instead of HIPAA. Oops."
Posted at 22:22 by Howard Bashman



"Alabama Supreme Court turns down mail-bomber's appeal": The Associated Press provides this report. The bomb in question killed a judge serving on the U.S. Court of Appeals for the Eleventh Circuit.
Posted at 20:01 by Howard Bashman



"The Pledge of Allegiance: The PowerPoint version." Daniel Radosh offers this online at Slate.
Posted at 19:56 by Howard Bashman



"Starcher Defends Behavior at Forum; Candidate Debate Turns Into Argument at State Bar Association Gathering": The State Journal of Charleston, West Virginia yesterday published an article that begins, "What started out as a calm, organized forum March 18 to meet candidates for the state Supreme Court of Appeals turned into a heated exchange not between two candidates but between a candidate and a member of the audience." (Via "Brian Peterson's Legal Weblog.")
Posted at 19:16 by Howard Bashman



"Supreme Court Eyes Land Management Case": The Associated Press provides this report.
Posted at 19:12 by Howard Bashman



Fifth Circuit recess appointee Judge Charles W. Pickering, Sr. to appear on the CBS News program "60 Minutes" this Sunday: CBS News provides a preview headlined "Pickering Answers Critics." And The Clarion-Ledger reports today that "Pickering gives '60 Minutes' interview."

Next up, Eleventh Circuit recess appointee Judge William H. Pryor, Jr. will be appearing on the "Late Show with David Letterman."
Posted at 17:55 by Howard Bashman



BREAKING NEWS -- Divided Seventh Circuit panel affirms federal district court order refusing enforcement of the federal government's subpoena to Northwestern Memorial Hospital for medical records of late term abortions: You can access today's ruling of the U.S. Court of Appeals for the Seventh Circuit, issued late today, at this link. Circuit Judge Richard A. Posner wrote the majority opinion, in which Circuit Judge Ann Claire Williams joined. Circuit Judge Daniel A. Manion dissented from the court's refusal to enforce the subpoena.

Here is an excerpt from Judge Posner's majority opinion:
The natural sensitivity that people feel about the disclosure of their medical records--the sensitivity that lies behind HIPAA--is amplified when the records are of a procedure that Congress has now declared to be a crime. Even if all the women whose records the government seeks know what "redacted" means, they are bound to be skeptical that redaction will conceal their identity from the world. This is hardly a typical case in which medical records get drawn into a lawsuit. Reflecting the fierce emotions that the long-running controversy over the morality and legality of abortion has made combustible, the Partial-Birth Abortion Ban Act and the litigation challenging its constitutionality--and even more so the rash of suits around the country in which the Department of Justice has been seeking the hospital records of abortion patients--have generated enormous publicity. These women must know that, and doubtless they are also aware that hostility to abortion has at times erupted into violence, including criminal obstruction of entry into abortion clinics, the firebombing of clinics, and the assassination of physicians who perform abortions.

Some of these women will be afraid that when their redacted records are made a part of the trial record in New York, persons of their acquaintance, or skillful "Googlers," sifting the information contained in the medical records concerning each patient's medical and sex history, will put two and two together, "out" the 45 women, and thereby expose them to threats, humiliation, and obloquy.
A bit later, Judge Posner writes:
Even if there were no possibility that a patient's identity might be learned from a redacted medical record, there would be an invasion of privacy. Imagine if nude pictures of a woman, uploaded to the Internet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her. She would still feel that her privacy had been invaded. The revelation of the intimate details contained in the record of a late-term abortion may inflict a similar wound.
Thereafter, Judge Posner questions how the records the federal government is seeking will even be relevant to the central issue to be decided at the upcoming trials over the constitutionality of the new federal law banning "partial birth" abortion. Those trials, by the way, are scheduled to get underway on Monday of next week.
Posted at 17:14 by Howard Bashman



"Charges against airman remain; Judge lets counts stand but says some evidence kept from defense": This article appears today in The Sacramento Bee. And The Times-Herald of Vallejo, California reports that "Case against Travis airman remains, new charges may be filed separately."
Posted at 16:46 by Howard Bashman



"Gay marriage views fervent - and quirky": Claire Cooper, legal affairs writer for The Sacramento Bee, today has an article that begins, "The state Supreme Court may have wanted to view this city's gay marriage case as a dust-dry procedural dispute, but at the deadline for filing briefs on Thursday, assorted Californians had weighed in with a range of provocative views."
Posted at 15:43 by Howard Bashman



Apparently no "Larry" or "Curly" defendants were sued: If Unocal Corp. can be sued in California for alleged abuses committed in Myanmar, then why can't ChevronTexaco Corp. be sued in California for alleged abuses committed in Nigeria? That, perhaps, is the logic of this week's ruling of the U.S. District Court for the Northern District of California.

In news coverage, The Los Angeles Times today reports that "Chevron to Face Trial in Nigeria Suit; A judge says evidence suggests the firm might be indirectly liable for killings of protesters." And Bob Egelko of The San Francisco Chronicle reports that "Nigerian villagers allowed to sue ChevronTexaco; Protesters were slain, possibly with help of firm's subsidiary."

The opinion notes that plaintiffs have also sued "500 'Moe' defendants."
Posted at 15:27 by Howard Bashman



"Senate Democrats Take Stand on Judges": Jesse J. Holland of The Associated Press reports here that "Senate Democrats on Friday threatened to stop all of President Bush's judicial nominees until the White House agrees not to appoint any more judges while Congress is out of town." I, for one, am surprised that the Democrats waited this long to make such an announcement.
Posted at 15:12 by Howard Bashman



Hotel, motel, Holiday Inn: Apparently motel room law is becoming quite a sub-specialty for criminal law practitioners. Just today, the U.S. Court of Appeals for the First Circuit issued an opinion that begins, "This appeal presents interesting questions about the application of the Fourth Amendment when an anonymous tipster informs police that there is a dead body in a motel room." And the U.S. Court of Appeals for the Ninth Circuit today decided a case presenting the question "whether a registered occupant of a motel room retains a legitimate expectation of privacy in the face of an unconfirmed report that a stolen credit card number was used to reserve the room." (This post's title courtesy of "Rapper's Delight.")
Posted at 14:46 by Howard Bashman



He's not just a reporter at The Washington Post: I had the pleasure of watching on DVD last night the final two-thirds of the film "Shattered Glass." While the film is not among the best movies that I have ever seen, it nevertheless is quite good, and time flies by while watching it.

What made the film especially interesting for me is that one of the characters is Charles Lane, who now covers the U.S. Supreme Court for The Washington Post. Thanks to this blog, I have had the pleasure of getting to know Chuck a bit over the past year and a half, and he he truly is the hero of the movie, as Tony Scott notes in this review. What struck me as odd, however, is that the film's closing titles, which bring the viewer up to date on the movie's major characters, simply say that Chuck is a reporter at The Washington Post, without mentioning his job as the newspaper's Supreme Court correspondent.

Included on the DVD is a bonus audio track in which Chuck and the film's director comment on the movie while it plays. I didn't have the time or interest to sit through all of that (and Netflix demands that the movie be returned before sending me the next film on my list), but the early part of that commentary seemed very interesting. On a related note, was Linda Greenhouse ever in a major motion picture, or am I simply delusional? And only time will tell whether any Supreme Court correspondents appear in "Lost in Translation," the film I'll begin watching tonight.

Update: Chris Geidner enjoyed "Shattered Glass" too, he explains at the "De Novo" blog.
Posted at 14:30 by Howard Bashman



Sixteen days after September 11, 2001 was probably not the best time for an Iranian national to smoke in an airplane's restroom and, once discovered, to allegedly threaten to "kill all Americans": Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed, in an opinion you can access here, the defendant's judgment of conviction and thirty-three-month sentence in federal prison.
Posted at 13:30 by Howard Bashman



"Newswoman's photos can go back online": The Cleveland Plain Dealer reports here today that "A federal appeals court Thursday lifted a temporary restraining order that had blocked numerous Internet sites from showing photos of Youngstown TV newswoman Catherine Bosley dancing naked in a Key West bar." And WLWT-5 in Cincinnati reports that "Former Ohio Anchor's Naked Pictures Back On Net; Judge Lifts TRO." Update: More recently, The Associated Press reports that "Appeals Court Allows Nude Dance on Web."
Posted at 12:31 by Howard Bashman



"Conservatives Win Big With Fetus Bill": The Associated Press provides this report.
Posted at 11:58 by Howard Bashman



"SCOTUSblog" provides another first-hand account of the U.S. Supreme Court oral argument in the Pledge of Allegiance case: This report is from Eric Feigin, who happens to be the incoming president of the Stanford Law Review.
Posted at 11:23 by Howard Bashman



From this morning's broadcast of NPR's "Morning Edition": Nina Totenberg has a very interesting report entitled "Recusals Rare in Supreme Court History" (7 minutes and 29 seconds). This morning's broadcast also included segments entitled "Senate Passes Fetal Protection Bill"; "Tyco Jury Deliberations Turn 'Poisonous'"; and "Prison Town." Real Player is required to play these audio segments.
Posted at 10:42 by Howard Bashman



"Newdow reflects on his day in court": This article appears today in The Sacramento Bee. The Daily Princetonian today reports that "Eisgruber files brief to resolve pledge case." And The Denver Post today contains an editorial entitled "Pledge harms no one."
Posted at 08:50 by Howard Bashman



"SJC chief justice stays mum on gay marriage": The Boston Herald provides this report today.
Posted at 08:43 by Howard Bashman



"Affirmative action backers win ruling on petitions": This article appears today in The Detroit Free Press. And The Detroit News reports that "Judge stalls race preference petition; In setback for affirmative action critics, language in ballot proposal is ruled invalid."
Posted at 08:23 by Howard Bashman



"Court Affirms Nipple Piercing Conviction": The Associated Press reports here from New Mexico that "The state Court of Appeals has affirmed the conviction of an Albuquerque shop owner who offered free nipple piercing if customers underwent the procedure in the store's window."
Posted at 08:20 by Howard Bashman



"Bias-elimination class remains law requirement, state high court rules": The Minneapolis Star Tribune today contains this report. And The St. Paul Pioneer Press reports that "Lawyer can't skip classes." You can access yesterday's ruling of the Supreme Court of Minnesota at this link.
Posted at 08:17 by Howard Bashman



"O'Connor to appear at book festival": This article appears today in The Arizona Republic. By the way, Justice Sandra Day O'Connor celebrates her 74th birthday today.
Posted at 08:13 by Howard Bashman



In Friday's newspapers: The New York Times reports that "Senate Outlaws Injury to Fetus During a Crime." An article reports that "U.S. Online Gambling Policy Violates Law, W.T.O. Rules." In celebrity justice-related news, "Besieged, Accuser and Family Urge Quick Bryant Trial"; "Jury in Turmoil in Tyco Case"; and "Gun Could Have Misfired, Says Witness for Williams." In local news, "A Second Rowland Judicial Nomination Is Scuttled"; "Ban Is Overturned for Heavy Trucks on New Jersey Highways"; and "Disappointment for Woody Allen, but Not at Box Office." In news from Texas, "Ex-Executive of Dynegy Is Sentenced to 24 Years." And Kenneth C. Davis has an op-ed entitled "Jefferson, Madison, Newdow?"

The Washington Post reports that "Senate Passes Bill On Harm To Fetuses; Critics Say Measure Defines Start of Life." An article reports that "Bryant's Accuser Seeks Court Date." In local news, "Gay Couples Seek to Wed in Fredericksburg; Court Clerk Rejects Efforts by 4 Pairs." And in business news, "Jury Gives Signs of Tension in Tyco Trial; Judge Denies Defense Motion for Mistrial."

Finally for now, The Christian Science Monitor reports that "US soldiers face charges of prisoner abuse; Though incidents are rare, the legal and ethical lapses highlight moral quandaries inherent in the Iraq war."
Posted at 06:44 by Howard Bashman



Thursday, March 25, 2004
Elsewhere in Thursday's newspapers: The Boston Globe reports that "Citing SJC ruling, judge dissolves gay civil union." In somewhat related news, an article is headlined "Press for clarity on gay marriage." In business news, "EU hits Microsoft with fine, curbs; Fight over bundling new applications could recast market." In local news, "Revere drug raid legal, Appeals Court rules; Cocaine bust trial can now proceed." And Ellen Goodman has an op-ed entitled "Eroding the rights of pregnant women."

The Los Angeles Times reports that "Bryant's Accuser Testifies at Hearing; At closed-door session, woman faces Laker star for the first time since the alleged assault." In other news, "Judge Bans Photos at Courthouse; The order comes as selection of secret grand jury members is to begin in the Michael Jackson case; Media attorneys challenge the directive." An article reports that "Condemned Man Impresses Tutu; The retired South African archbishop says it would be a tragedy if the Texas death row inmate were to be executed." In business news, "Microsoft Fined, Restricted in Europe; The company is ordered to pay $613 million and give rivals access to Windows code" and "Microsoft Is Seen as Unmoved by Ruling." In local news, "Jail Inmates Freed Early to Save Money; L.A. County sheriff says he's trying to avoid cuts to street patrols; Judges, prosecutors frustrated" and "Video Expert Testifies at Rape Hearing; A 17-minute gap in the tape allegedly showing the Corona del Mar crime does not prove tampering, says a prosecution witness." And an editorial is entitled "A Ploy in the Abortion War."

USA Today reports that "Bryant's accuser testifies on her sex life."

Finally for now, The Washington Times contains editorials entitled "Danger from foreign legal precedent" and "Two victims for fetal violence."
Posted at 23:01 by Howard Bashman



Taking "three strikes" too literally: What criminal defense lawyer wouldn't want to represent a client simply because the client punched-out co-defense counsel while the trial was underway? Well, that question has been rendered all but academic, The Philadelphia Inquirer reports here tonight in an article that begins, "The Pennsylvania Supreme Court today ordered that a public defender must continue to represent the man accused of the rape and murder of 6-year-old Destiny Wright, even though the defendant punched her co-counsel during the trial." The Supreme Court of Pennsylvania's order can be accessed here. One concurring statement is here, another here.
Posted at 22:44 by Howard Bashman



Available online at law.com: Tony Mauro reports that "Court Revisits Tax on Contingency Cash." And in other news, "California High Court Agrees to Set Bounds on Punitives."
Posted at 22:32 by Howard Bashman



"Legislation brewing to form Virgin Islands Supreme Court": This article appears today in The Virgin Islands Daily News. The only question in my mind is whether off-Islands volunteers will be considered, at least from among those who recently argued an appeal in the U.S.V.I.? The blog "Welcome to Paradox" has more discussion here.
Posted at 22:26 by Howard Bashman



"Lingle names city attorney for new appellate court seat": This article appears today in The Honolulu Advertiser.
Posted at 22:19 by Howard Bashman



Stay tuned for the lawsuit alleging an equal protection violation: Today's issue of The Atlanta Journal-Constitution contains an article headlined "Bill limits piercing ban to females" that begins, "The X-rated phenomenon of genital piercing came under stealth attack Wednesday when state representatives voted to make the practice illegal for women -- but not men."
Posted at 22:05 by Howard Bashman



From this evening's broadcast of NPR's "All Things Considered": This evening's broadcast included segments entitled "Senate Passes Bill Naming 'Unborn Victims'" and "WTO Rules Against U.S. Web-Gambling Ban" (Real Player required).
Posted at 20:36 by Howard Bashman



"Free Speech Victory In Virginia Internet Case; 4th Circuit Rules Against Curbing Speech on the Web": The organization People For the American Way issued this press release today. My earlier coverage of this matter can be accessed here.
Posted at 20:30 by Howard Bashman



Law Professor Lawrence Solum blogs from the Benjamin N. Cardozo School of Law conference entitled "Reconsidering the Federal Appointments Process": The conference took place on Monday, and you can read Larry's coverage of it by starting here and then scrolling down from there through the preceding posts.
Posted at 19:35 by Howard Bashman



Ten Commandments news: The Associated Press reports on yesterday's news from the U.S. Court of Appeals for the Sixth Circuit in an article headlined "Commandments must go; Circuit Court agrees posting in public buildings is illegal."

In news from Fairbanks, Alaska, The Fairbanks Daily News-Miner reports that "Ten Commandments stay in City Hall." And The AP reports that "Framed Ten Commandments to stay."

In news from Missouri, The News-Leader of Springfield reports that "Commandments lawsuit is the talk of Humansville; Mother of high school student files federal lawsuit over school's plaque." The Bolivar Herald-Free Press reports that "R-4 schools being sued over display of Ten Commandments." And The AP reports that "Lawsuit says school violates separation of church, state."

In news from Minnesota, The Duluth News Tribune reports that "Lawyers discuss monument suit; Some councilors want to give the monument and the fight to St. Louis County" and "ACLU won't accept monument transfer." And The AP reports "No flap over Ten Commandments in Albert Lea."

Finally, in news from Alabama, The AP reports that "Roy Moore's attorney may run for Congress." And The Birmingham News reports that "Moore's lawyer may run for Rep. Bachus' seat."
Posted at 17:40 by Howard Bashman



"Armed Services approves bill strengthening Solomon": The Yale Daily News reports here today that "The U.S. House Armed Services Committee approved a bill last week that strengthens the 1995 Solomon Amendment, which withholds federal funding from universities that restrict military recruiters' access to their students."
Posted at 17:32 by Howard Bashman



"U-M abortion records won't be released for case": This article appears today in The Detroit Free Press. And The Associated Press reports that "U. of Mich. Hands Over No Abortion Files." Yesterday, The Chicago Tribune reported that "Patient IDs feared from abortion files; Hospital records ordered in lawsuit." The Chicago Sun-Times reported that "U.S. pushes for abortion records." And The St. Petersburg Times contained an editorial entitled "Intimidation tactics."

In somewhat related news, The AP is reporting that "Fetus Protection Bill Nears Passage"; "Attempt to Block Abortion Funding Fails"; and "Anti-Abortion Bill Resurrected in Tenn."
Posted at 17:20 by Howard Bashman



Additional coverage from Tony Mauro of yesterday's U.S. Supreme Court oral arguments: The First Amendment Center provides articles headlined "Atheist's stellar performance may not translate into win" and "Supreme Court revisits adult-business licensing."
Posted at 17:18 by Howard Bashman



"US Atheist Newdow Loses Suit on Prayer in Congress": James Vicini of Reuters provides this report. And The Associated Press reports that "Judge dismisses chaplain lawsuit filed by pledge challenger." My earlier post on this matter can be accessed here.
Posted at 16:47 by Howard Bashman



In news from Tennessee: The Web site 365Gay.com reports that "Court Strikes Down Ban On Gay Dad From 'Exposing' Son To Homosexuality." You can access here yesterday's ruling by the Tennessee Court of Appeals. (Link to article via ADF Alliance Alert.)

In other news, The Tennessean reports today that "Subcommittee kills civil union bill for year; Democrats stack deck in voting, says bill sponsor, who vows '05 try."
Posted at 16:01 by Howard Bashman



Divided three-judge Fourth Circuit panel upholds federal district court ruling that struck down as unconstitutional a Virginia law criminalizing the dissemination over the Internet of material harmful to minors: You can access today's ruling of the U.S. Court of Appeals for the Fourth Circuit at this link. The majority ruled that the statute violated both the First Amendment and the Commerce Clause. It is worth noting that the three-judge panel consisted of two U.S. District Judges and one active Fourth Circuit judge. The two district judges joined in today's ruling, and Circuit Judge Paul V. Niemeyer dissented. While this does not guarantee rehearing en banc, it does make it more likely.
Posted at 14:45 by Howard Bashman



Michael A. Newdow loses his case: Well, not that case, involving the Pledge of Allegiance, argued before the Supreme Court of the United States yesterday. Rather, yesterday the U.S. District Court for the District of Columbia dismissed Newdow's lawsuit challenging the use of prayer and legislative chaplains in the U.S. Congress. You can access yesterday's ruling at this link. The "Background Information" section of yesterday's opinion begins, "Newdow is a minister ordained by the Universal Life Church and the founder of the First Amendmist Church of True Science." Surely U.S. District Judge Henry H. Kennedy, Jr. didn't select yesterday as the day on which to issue his ruling against Newdow by accident.
Posted at 13:30 by Howard Bashman



Decide for yourself: A reader based in Alaska emails:
Tuesday was the scheduled en banc argument in the 9th Cir. case of U.S. v. Kincade, the DNA database case. I've seen no reports in any of the news sources. Would it be possible for you to ask if any of your readers were there and could report?
According to the Ninth Circuit's Web site, this case presents the issue "Whether the forced extraction of blood from parolees pursuant to the federal DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. sec. 14135a, without reasonable, individualized suspicion, violates the Fourth Amendment." Back on October 2, 2003, a divided three-judge panel held the law unconstitutional. You can access that ruling here and my coverage of it here. On January 5, 2004, the Ninth Circuit issued an order granting rehearing en banc. You can access the order here and my coverage of it here.

The relatively conservative eleven-judge en banc panel consists of Chief Judge Mary M. Schroeder and Circuit Judges Harry Pregerson, Stephen Reinhardt, Alex Kozinski, Diarmuid F. O'Scannlain, Michael Daly Hawkins, Barry G. Silverman, Kim McLane Wardlaw, Ronald M. Gould, Richard R. Clifton, and Consuelo M. Callahan. Judge Reinhardt was the author of the three-judge panel's majority opinion, and Judge O'Scannlain was the author of the panel dissent. Thanks to the wonders of technology, you can access the audio of the oral argument online via this link (9.18 MB Windows Media file; right click and save to your hard drive recommended) (audio link via "Criminal Appeal" blog).
Posted at 12:12 by Howard Bashman



"Ogletree Vows To Continue Lawsuit": The Harvard Crimson reports here today that "Climenko Professor of Law Charles J. Ogletree vowed yesterday to forge ahead with a suit seeking reparations for survivors of the 1921 Tulsa, Okla., race riots, five days after a federal judge threw the suit out of court."
Posted at 11:31 by Howard Bashman



"Spy suspect treated unfairly, lawyer insists": This article appears today in The Sacramento Bee. The San Francisco Chronicle reports that "Accused spy's lawyer blasts government; He says defense is being denied crucial evidence." The Associated Press reports that "Judge hears arguments over whether to dismiss case against airman." And Reuters reports that "Lawyer Wants Guantanamo Spying Case Dropped."
Posted at 11:20 by Howard Bashman



"Former mining lobbyist is wrong judicial nominee": This editorial opposing Ninth Circuit nominee William Gerry Myers III appears today in The San Jose Mercury News.
Posted at 10:37 by Howard Bashman



Additional press coverage of yesterday's Pledge of Allegiance oral argument at the U.S. Supreme Court: In The Los Angeles Times, David G. Savage reports that "Justices Debate 'God' in Pledge; A California man argues before the U.S. Supreme Court to remove any religious reference from the salute to the flag used in public schools." Lyle Denniston of The Boston Globe reports that "Supreme Court hears atheist on pledge." The Globe also contains an article headlined "Pledging allegiances: Schoolchildren differ on 'under God' phrase." USA Today contains articles headlined "High court grills Pledge plaintiff; Many view 'under God' as motto, not prayer" and "Scalia sits out Pledge case; tie vote possible" and an editorial entitled "Fighting words: 'Under God.'" And The Washington Times contains articles headlined "Atheist spars with skeptical justices over Pledge" and "'Culture wars' shaping election."

In other coverage, The Sacramento Bee today contains an article headlined "Taking it to the top: Sacramento atheist gets a rough ride as he argues his 'under God' pledge case before the Supreme Court." The San Jose Mercury News reports that "Sacramento atheist argues pledge case before Supreme Court" and "Novice attorney impresses observers." The San Francisco Chronicle reports that "Justices hear dad protest pledge; Skepticism on court as Sacramento man battles 'under God'" and "Atheists in S.F. rally for God-free pledge."

Elsewhere, The Chicago Tribune reports that "'Under God' ignites debate; Justices engage in lively exchange with atheist." The Pittsburgh Post-Gazette reports that "Justices told 'God' in pledge a 'slap'; Atheist says constitutional rights have been violated." The Dallas Morning News contains an article headlined "Faith vs. history in court: Justices hear arguments over pledge's inclusion of 'under God.'" The Houston Chronicle reports that "Supreme Court, atheist take on 'under God' debate." The Hartford Courant reports that "Court Hears Atheist In Pledge Case." The Cox News Service reports that "Court weighs pledge phrase; Atheist's case claims words 'under God' violate Constitution." And the McClatchy Newspapers report that "High court questions basis of pledge case."

Front-runners in the battle for most absurd headlines are The Sydney Morning Herald, with "Atheist doesn't have prayer against pledge," and The New York Post, with "Kill 'God,' Pledge foe tells Justices." In other foreign coverage, The Toronto Globe and Mail reports that "U.S. court battle over pledge raucous; Emotions spill over as arguments begin on constitutionality of term 'under God.'" The Australian reports that "God has day in US court." And Voice of America reports that "'Pledge' Arguments Heard by Supreme Court" (with Real Player audio available here).

In coverage with a local angle, The Seattle Post-Intelligencer reports that "For Buddhist WWII vet, a lifetime as individualist led to stance on pledge." The Tri-City Herald of Washington State reports that "Tri-City kids still reciting pledge." The Amarillo Globe-News reports that "Potter workers recite pledge at courthouse." The Lansing State Journal contains an article headlined "Under God? Supreme Court Pledge of Allegiance case sparking phrase debate; Michigan Senate, many area residents back God reference." The Southern Illinoisan reports that "Pledge question stirs debate." The Minneapolis Star Tribune contains an article headlined "Local atheist: Contested phrase is a hate crime." And The Virginian-Pilot reports that "'Under God' gains favor, resolutions in N.C. towns."

And from the editorial and op-ed pages, The Oregonian today contains an editorial entitled "The pledge's day in court: 'The Pledge of Allegiance' doesn't need doctoring, but an atheist's challenge affirms its meaning." The Indianapolis Star contains an editorial entitled "Pledge of Allegiance stands test of time." Law Professor Marci Hamilton has an essay online at FindLaw entitled "The Court Hears Oral Argument in the 'Under God' Pledge of Allegiance Case: Why the Court Should Reject This Pledge, and Why the Department of Justice Is Wrong To Support It." The Fort Worth Star-Telegram contains an op-ed by Don Erler entitled "Constitution and court." In The Detroit Free Press, columnist Desiree Cooper has an essay entitled "U.S. needs less pledging, more justice." And attorney Dennis J. Callahan has an op-ed in The Roanoke Times entitled "On the pledge,the high court should duck."
Posted at 09:20 by Howard Bashman



"Supreme Court hears sex-shop case; Littleton adult store seeks speedy licensing review": This article appears today in The Denver Post. And The Rocky Mountain News reports that "Local bookstore faces high court; Adult business' case on free speech could have national impact."
Posted at 07:10 by Howard Bashman



In Thursday's newspapers: In The New York Times, Linda Greenhouse reports that "Atheist Presents Case for Taking God From Pledge." Relatedly, the newspaper offers extensive "Excerpts From Arguments on the Meaning of 'Under God' in the Pledge of Allegiance." In other news, "Oregonians Look to One Suit to Settle Gay Marriage Issue." An article reports that "Bryant's Accuser in Rape Case Testifies in a Closed Hearing." In business news, "Europeans Rule Against Microsoft; Appeal Is Promised"; "Paring Away at Microsoft"; "A Slayer of Monopolies, One Corporation at a Time"; "Federal Grand Jury Indicts Protester for Tax Evasion"; and "White Hats Take to the Web to Dispel Anti-Tax Schemes." In local news, "Gang Killing Verdict Is Tossed for Lying Witnesses" and "House Votes to Confirm Hartford Judge." An obituary is headlined "Charles Haden, 66, U.S. Judge on Strip-Mining Case, Dies." And letters to the editor appear under the heading "The Pledge and Religious Freedom."

In The Washington Post, Charles Lane has an article headlined "In Pledge Case, Passing the Test; Newdow Withstands Justices' Inquiries." An article reports that "Bryant's Accuser Testifies in Colo.; Athlete and Woman Meet Face to Face." In business news, "Europeans Come Down Hard on Microsoft"; "Regulators, Rivals React; EU's Microsoft Decision Shows Split With U.S."; "Firms Look for Rush of Competition"; and "Jury Asks to Rehear Swartz's Testimony; Former Tyco Finance Chief's Statements About Bonuses Will Be Read." An article is headlined "Terror for College Credit; Students Learn by Doing in Plotting Deadly Attacks." An editorial is entitled "The Pledge in Court." And Art Buchwald has an essay entitled "Justice's Duck Blind."

The Christian Science Monitor contains an article headlined "Is the rape-shield law working? Personal details about Kobe Bryant's accuser are slipping into the press and courtroom - a serious setback, some say, for rape-case reform; But others argue that Kobe Bryant's lawyers are simply giving him the best defense possible." An editorial asks "Is Microsoft a Serial Abuser?" And David Greenberg has an op-ed entitled "One pledge, hold the 'under God.'"
Posted at 06:35 by Howard Bashman



Wednesday, March 24, 2004
In Wednesday's newspapers: The New York Times reports that "Court Case Poses Challenge to Scientology Tax Break." In same-sex marriage-related news, "Gay Official Denounces Amendment" and "Split Gay Couples Face Custody Hurdles." In technology-related news, "Newly Released Documents Shed Light on Microsoft Tactics" and "Europe Considers the Case of Microsoft." In news from Texas, "Stiff Sentence Is Possibility for a Name Not So Known." In local news, "Judge Says Jurors Can See Parts of Williams Defense's Video." And an editorial is entitled "Military Injustice."

The Washington Post reports that "GOP Playing Politics on Gay Marriage, Democrats Say; Seeking Votes at Polls If Not on Hill, Party Pushes Amendment." In other news, "Malvo Moves To New Prison; Teen Sniper's Home Is Highest Security." And an article reports "No Verdict in Tyco Case; Jurors Request Clarification on Criminal Intent."

The Washington Times reports that "Scholars, legislators split over marriage." In news from Virginia, "No budget, but legislators OK gay civil union ban." An article reports that "Bribery sentences toughened." And in other news, "Military judge cites general for 'pond scum' crack."

USA Today reports that "College admissions examined; Affirmative-action critics seek data on school policies." In other news, "Kobe Bryant to face his accuser today; Hearing on her sex life may sway outcome of case." And Carl T. Bogus has an op-ed entitled "Research counters furor over malpractice lawsuits."

The Boston Globe reports that "Marriage measure blasted; Democrats dominate first Senate hearing." And an editorial is entitled "Busybodies vs. Bono."

The Los Angeles Times reports that "Experts, Lawmakers Clash Over Impact of Gay Marriage; A Texas senator sees an attack on tradition, but a congressman questions whether it's damaging." In celebrity justice-related news, "Hearings in Bryant Case Not Taking Usual Turns" and "Grand Jury Selection to Start in Jackson Case; Testimony before the secret body will help members decide whether the entertainer should be tried on child molestation charges." In local news, "Grower Owes Back Pay for Travel; D'Arrigo of Salinas must compensate workers for time in transit, a judge rules." Andrew Cohen has an op-ed entitled "In the Courtroom of the Absurd." And a letter to the editor appears under the heading "Partisan Justice?"
Posted at 23:10 by Howard Bashman



"Nation 'under God' challenged by atheist father": This article will appear in Thursday's issue of The Telegraph (UK). The NewsHour with Jim Lehrer contained this report (Real Player required). And The Associated Press provides these excerpts from today's oral argument.
Posted at 23:00 by Howard Bashman



Available online at law.com: Tony Mauro reports that "Atheist, Rookie Lawyer Argues Before High Court." And Shannon P. Duffy reports that "$52 Million in Punitives Will Stand, Attorney Says."
Posted at 22:40 by Howard Bashman



Does the Second Amendment to the U.S. Constitution confer an "individual right" or merely a "collective right"? A three-judge panel of the U.S. Court of Appeals for the Tenth Circuit, in a ruling issued today that consists of two opinions, takes a look at that very interesting question.
Posted at 22:34 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Court Ruling Puts Interior Back Online"; "Ex-Professor Appeals Bioterror Conviction"; "Lawyers to Argue Activist Can't Testify"; and "Georgia House Bans Genital Piercings."
Posted at 22:02 by Howard Bashman



"Supreme Court Hears Arguments on 'Under God' in Pledge": Linda Greenhouse of The New York Times provides this coverage. And Charles Lane of The Washington Post reports that "Supreme Court Hears Arguments on Pledge Case."
Posted at 19:36 by Howard Bashman



"One Nation, Under Hallmark, Indivisible: Is the God of the Pledge of Allegiance a deity or a greeting card?" Slate has just posted online this report from Dahlia Lithwick.
Posted at 18:55 by Howard Bashman



"Court hears argument over words 'under God' in pledge": Stephen Henderson of Knight Ridder Newspapers provides this report. And Amanda Butler of the "Crescat Sententia" blog was among the overnight campers at the Court, and she provides this quite detailed report of the oral argument.
Posted at 18:46 by Howard Bashman



"Protest and Prayer: The U.S. Supreme Court has finally heard arguments over the constitutionality of the Pledge of Allegiance. But first the justices will have to rule on the legal standing of the California atheist who brought the case." Newsweek magazine provides this online report.
Posted at 17:59 by Howard Bashman



"Supreme Court Takes Up 'Under God'": David G. Savage of The Los Angeles Times provides this news update.
Posted at 17:57 by Howard Bashman



"High Court Hears 'Pledge' Case": NPR's Nina Totenberg has this report (Real Player required) on this evening's broadcast of "All Things Considered."
Posted at 17:51 by Howard Bashman



"Reactions to Oral Arguments of Elk Grove School District v. Newdow": C-SPAN provides this coverage (Real Player required) from the steps outside of the U.S. Supreme Court early this afternoon.
Posted at 17:29 by Howard Bashman



"One Nation under God": NPR's "Talk of the Nation" today included this lengthy segment (Real Player required).
Posted at 17:20 by Howard Bashman



"All rise: Judges are coming to town." This article appears today in The Pittsburgh Post-Gazette.
Posted at 17:13 by Howard Bashman



Available online from The Metropolitan News-Enterprise: Yesterday the publication contained an article headlined "Ninth Circuit Revives Local Prosecutor’s Retaliation Lawsuit; Court Rules Deputy District Attorney Had Free Speech Right to Question Warrant Affidavit" about an interesting ruling that the Ninth Circuit issued on Monday. And on Monday, the publication reported that "Ninth Circuit Judge Tashima to Take Senior Status."
Posted at 17:08 by Howard Bashman



"Novice Lawyer, Atheist Gets Point Across": Gina Holland of The Associated Press provides this report.
Posted at 16:48 by Howard Bashman



Another first-hand report on today's Pledge of Allegiance oral argument: A devoted reader emails:
I left the argument with the instinct that (1) AMK, SDO, WHR, and CT will form a core group in favor of vacating on standing grounds; (2) SGB and RBG, or one of them, may join that group to make a majority and avoid having to reach the merits, and DHS may also join the group; and (3) JPS and (maybe) DHS will dissent, finding standing and arguing that CA9 should be affirmed. It is possible that SGB and RBG will find standing and vote to affirm, though both seemed to be looking for a rationale for upholding "under God." I do not have a definite sense of what AMK and SDO would do on the merits; I'm neither pessimistic nor optimistic.
Those desiring a guide to the Justices' initials should see this PDF document.
Posted at 16:22 by Howard Bashman



"Skeptical Supreme Court weighs Pledge case; Justices debate whether saying 'under God' is reciting a prayer": CNN.com provides this report.
Posted at 16:07 by Howard Bashman



"Sacramento atheist argues pledge case before Supreme Court": The San Jose Mercury News offers this report on today's oral argument.
Posted at 15:57 by Howard Bashman



You mean to say more than one case was argued at the U.S. Supreme Court today? Indeed so. The Associated Press reports that "Adult Shop Restrictions Reach High Court."
Posted at 15:50 by Howard Bashman



"Atheist pleads with justices to stop recitation of pledge; Newdow gets skeptical reception from Supreme Court on 'under God' controversy": MSNBC's Tom Curry provides this report.
Posted at 15:48 by Howard Bashman



Talk about "under God" -- this correspondent spent overnight on the U.S. Supreme Court's steps: A reader emails:
I just returned from oral arguments after sleeping on the front steps of the SCOTUS all night, just thought I would share some hurried and extremely unorganized anecdotes before I have a chance to digest and share my observations more thoroughly.

Newdow DID stand for "God save the United States and this Honorable Court."

Kennedy appears most skeptical on the standing issue, acknowledging he's completely undecided. Notes the fact that Newdow's brief kept making reference to his daughter's injury, and he does not have standing on behalf of daughter. He needs standing as a father. Kennedy keeps searching for how he can find that Newdow himself, as a father, was injured.

Standing dominated all of Elks Grove's argument time, almost three quarters of Olson's, and close to half of Newdow's.

Stevens reminded Olson three times that individual Justices have not definitively taken a stance on the pledge issue. When Olson brought up discussion of the pledge in previous opinions, Stevens asked "is that what we held or what we said." Two more times he told Olson, "that was dicta!" Ginsburg then chimes in, noting that alleged stances that Justices have taken on the pledge were done in only tangentially related cases and "made without the benefit of brief or oral argument."

Stevens asked twice whether the pledge has the same meaning today that it meant when it was enacted. Ginsburg follows up, inquiring of Olson whether he feels his case is stronger because what might have been once intended as religious has now become ceremonial.

Ginsburg later seemed satisfied that students are given choice whether to say 'under God' or skip that phrase when reciting the pledge. Breyer added that the word God is "generic and inclusive" of almost everyone, and removing 'under God' would "accommodate so few." Breyer then pointed out that the right to dissent, while "not perfect" in the way of a solution, serves the purpose of unifying an overwhelming majority at the "small price of affecting a small few."

Kennedy asserts there is a difference between a religious exercise and the pledge because the words 'under God' in the pledge is arguably only "5% prayer" in terms of the number of words in the pledge as a whole, while a religious prayer is "100% prayer."
Thanks so very much for the report, and get some sleep!
Posted at 15:42 by Howard Bashman



"I'd rather be a nude model for the rest of my life than practice law": Today's issue of The Philadelphia Inquirer attributes that quote to centerfold model Victoria Zdrok, who has not only appeared in Playboy and Penthouse but also has graduated law school. The article is headlined "Judge: Adult model's income agreement is valid."
Posted at 15:37 by Howard Bashman



Tom Goldstein of "SCOTUSblog" reports on today's oral argument in the Pledge of Allegiance case: His report begins here, continues here, and concludes here. Bottom line -- Tom predicts a decision holding that Michael A. Newdow has standing but reversing the Ninth Circuit on the merits, by a vote of 6-2 or 7-1.
Posted at 15:31 by Howard Bashman



"Justice Scalia and Ducks!" Daryl Cagle's Professional Cartoonists Index, hosted at Slate, now features this subject as a separate category of editorial cartoons, and you can find among the eight pages of cartoons that begin here some that I haven't yet linked to over the past few days.
Posted at 14:45 by Howard Bashman



"Crowds Shout As High Court Weighs Pledge": The Associated Press provides this report.
Posted at 14:42 by Howard Bashman



"Slate's Jurisprudence: The Pledge Goes on Trial." Today's broadcast of NPR's "Day to Day" included this report (Real Player required) from Slate's Dahlia Lithwick on today's U.S. Supreme Court oral argument.
Posted at 14:14 by Howard Bashman



"Pledge's 'Under God' Gets Support at Top U.S. Court": Bloomberg News provides this report.
Posted at 14:09 by Howard Bashman



A long-time "How Appealing" reader reports on today's Pledge of Allegiance oral argument at the U.S. Supreme Court: A reader emails:
I attended the Supreme Court arguments this morning. The following is my report. I'm sure it won't be the only report you get--while waiting in the coat check line after the argument, I overheard someone talking about your blog.

Surprising things:

1) While waiting in the bar member line, I was approached by someone who apparently is running for President (not John or George). He was promoting a pamphlet/small book, and indicated that he had a case before the Court.

2) After the argument, the atheist turnout/demonstration was larger than I expected. I thought the pro-Pledge crowd would be bigger.

3) Newdow did a surprisingly good job. He was certainly much better than the attorneys on the losing sides of Lawrence and Zelman.

4) Applause in the courtroom. This was the exchange:

Rehnquist (to Newdow): What was the vote in Congress to adopt the "under God" language?

N: It was unanimous.

R: That doesn't sound divisive to me.

N: That's only because atheists cannot be elected to public office [clapping in back of courtroom]

R: The courtroom will be cleared if there's any more clapping.

5) I expected the line to be longer. I arrived at 7:15 am and was about 23rd in line. However, apparently there were only 33 seats available for bar members.

6) While waiting in line, I was reading the most recent copy of the "Green Bag." It turns out that just behind me in line was David Gossett (with another Mayer Brown attorney). He indicated, in response to my question, that he's making no guarantees about whether another bobblehead doll will come out. However, he indicated that I should not let my subscription lapse.

THE ARGUMENT:

Cassidy

The first set of questions (to Cassidy) came from O'Connor. She indicated that on the standing issue, normally the Court defers to courts of appeals on issues of state law and then moves on to the merits. She asked a couple of question re: why the Court should not do that in this case.

The second set of questions came from Kennedy. He asked about whether the party was relying on both Article III and prudential standing, or just Article III standing.

The third set of questions came from Souter. He noted that Newdow was arguing that, simply being the father of this child, he has an interest, and that interest is not to be subjected to unconstitutional religious influences. What is your answer to his claim that it's enough to give him personal standing?

Olson

Started out saying that Respondent has no right to bring this case in his daughter's name.

First question was from Kennedy, who indicated that Respondent was arguing that he had his own rights, the right to try to influence his child. He also asked about prudential standing.

Some more questions and answers and exchanges, in chronological order:
______
Ted Olson: This Court has repeatedly held that the Pledge of Allegiance is ceremonial, patriotic, etc.

Stevens: Has repeatedly held or repeatedly said? [laughter]

Olson: 14 judges have said in opinions, etc.

Ginsburg: Without the benefit of briefs or oral argument.
______
Stevens: Does the Pledge have the same meaning today as when enacted? .... Forget all the dicta...
Olson: Yes and no [laughter]

Ted Olson indicated that "one nation under Jesus" would be completely different.


Newdow

Started off by saying "Every school morning, government agents, funded by tax dollars require [then describes Pledge] . . . I am an atheist. I don't believe in God."

When asked about whether the Pledge is like the cases involving prayer, Newdow responded that President Bush said it does constitute a prayer.

There was some discussion about having children sing "God Bless America" and whether that is like this case.

O'Connor noted that "We have so many references to God in American life... we even opened our session with a reference to God." She also asked if he had a problem with "In God We Trust" on coins.

Breyer noted that "under God" is a broad wording that was meant to include virtually everybody.

Ginsburg asked about ending executive orders with "Year of Our Lord."


Cassidy (rebuttal)


Stevens: I'd like for you to respond to a quote from an amicus brief. That brief indicates that if the reference to God is not serious, then the government is asking kids to take the name of the Lord in vain.
Thanks much to my reader for taking the time to send along this account.
Posted at 14:00 by Howard Bashman



"Atheist Calls Pledge Unconstitutional": The AP's Gina Holland provides this updated report on today's U.S. Supreme Court oral argument. According to the article, at one point "Some in the audience erupted in applause in the courtroom, and were threatened with expulsion by the chief justice."
Posted at 13:05 by Howard Bashman



"Court Takes Up 'Under God' in Pledge": Gina Holland of The Associated Press has this early report on what happened during today's U.S. Supreme Court oral argument.
Posted at 12:15 by Howard Bashman



"I will shed no tears if this nomination goes down in flames." So "Juan Non-Volokh" has concluded, in a blog post entitled "Bush's Worst Appellate Nominee," with respect to Ninth Circuit nominee William Gerry Myers III.
Posted at 12:10 by Howard Bashman



Today's U.S. Supreme Court ruling: The Supreme Court of the United States today issued an opinion in Nixon v. Missouri Municipal League, No. 02-1238. You can access the syllabus at this link. Justice David H. Souter issued the opinion of the Court, which reversed the Eighth Circuit's ruling below. Justice Antonin Scalia issued an opinion concurring in the judgment, in which Justice Clarence Thomas joined. Justice John Paul Stevens issued a dissenting opinion. The oral argument transcript can be accessed here.

Update: The Associated Press reports that "Court Rules on Phone Service Providers." And Reuters offers an article headlined "US top court: states can bar city phone service."
Posted at 10:50 by Howard Bashman



See two U.S. Supreme Court Justices on TV: This past Saturday's broadcast of C-SPAN's fine program "America & the Courts" contained just a portion of the testimony that Justices Anthony M. Kennedy and Clarence Thomas delivered last week to a subcommittee of the U.S. House of Representatives while presenting the U.S. Supreme Court's budget request. C-SPAN has now put video of the entire hearing online, and you can access it at this link (Real Player required).
Posted at 10:40 by Howard Bashman



U.S. Court of Appeals for the Sixth Circuit denies petition for rehearing en banc seeking reconsideration of divided three-judge panel ruling that affirmed trial court decision prohibiting display of Ten Commandments in Kentucky courthouses and schools: Today's order is accompanied by a concurrence in and a dissent from the denial of rehearing en banc. You can access the three-judge panel's ruling at this link, and my coverage of that ruling is accessible here.
Posted at 10:14 by Howard Bashman



What happens if the U.S. Supreme Court is evenly divided on the outcome of the Pledge of Allegiance case? Once Justice Antonin Scalia recused himself from involvement in the Pledge of Allegiance case, which is being argued later this morning at the Supreme Court of the United States, a realistic prospect arose that the remaining eight Justices would emerge evenly divided on the questions presented. In this post, I discuss what the result will be if that happens. My earlier, more extensive preview of the case, published yesterday afternoon, can be accessed here.

To begin with first principles, when the Supreme Court is evenly divided, the result is that the appellate court's judgment under review is affirmed. See this example from December 16, 2002 in a case where Justice Anthony M. Kennedy was recused. When that happens, the Court typically issues an order of affirmance quite promptly. In the case I am using as an example, oral argument took place on December 10, 2002, just six days before the Court issued an order noting that the case was affirmed by an equally divided Court. Thus, if the Court is evenly divided on the Pledge of Allegiance case, we may see an order affirming by an equally divided Court next week.

What makes an evenly divided Court perhaps somewhat less likely is that the Pledge of Allegiance case presents two separate issues. The first issue questions whether Michael A. Newdow, as non-custodial father of his daughter, has standing to object to his daughter's having to recite the Pledge as currently worded when the child's custodial mother does not object to her daughter's recitation of the Pledge in its current form. If the Court rules that Newdow lacks standing, which I view to be an unlikely result, then the Court would set aside the Ninth Circuit's ruling, and the decision prohibiting the use of "under God" in the Pledge when recited in public schools within the Ninth Circuit would no longer be binding. (See also Law Professor Eugene Volokh's discussion of this issue here.) Certainly this outcome would not prevent an atheist with custody of his or her child from initiating an identical lawsuit within the Ninth Circuit, but whether the Ninth Circuit reached the same result in that case would very much depend on which three judges were on the panel. In any later litigation, the Ninth Circuit's earlier ruling, if set aside by the Supreme Court for lack of standing, would not bind the Ninth Circuit's judges. On the other hand, if the Supreme Court is evenly divided on the question of standing, that would cause the Ninth Circuit's ruling that found standing to exist to be affirmed, and the Supreme Court would then be able to consider on the merits whether the words "under God" when used in the Pledge in school violate the Establishment Clause of the U.S. Constitution. And the Court would of course be able to reach the other question presented if a majority of Justices concluded that Newdow has standing.

Assuming that the Supreme Court is able to reach the Establishment Clause question, five of the eight participating Justices will have to conclude that no constitutional violation exists in order to overturn the Ninth Circuit's ruling. That outcome is far from certain. If the Ninth Circuit's ruling is upheld by an evenly divided Court, the ruling will only be binding in the States and Territories within the Ninth Circuit's jurisdiction. But if a majority of the Supreme Court affirms the Ninth Circuit, the ruling will be binding nationwide, and we will surely have on our hands a brand new battle for a constitutional amendment to add "under God" back into the Pledge of Allegiance.

Stay tuned for continuing complete coverage throughout the day.
Posted at 09:30 by Howard Bashman



"High Court Weighs 'Under God' in Schools": NPR's "Morning Edition" today included this report from Nina Totenberg (Real Player required), which includes an excerpt of Michael A. Newdow's rendition, in song, of the "Pledge of Allegiance Blues." The Chicago Tribune reports that "High court joins 'under God' debate; Pledge case opens minefield of legal, religious issues." The Santa Cruz Sentinel reports that "Aptos lawyer takes part in high court pledge case." Ayesha N. Khan, legal director of Americans United for Separation of Church and State, has an op-ed entitled "How to untangle the religious from the patriotic" today in The San Francisco Chronicle. And at National Review Online, Vincent Phillip Munoz has an essay entitled "Judging Newdow: A trial run for the Pledge protester"; Gilbert T. Sewall has an essay entitled "Newdow & Us: Much more than one case and two words"; and Bruce Stockler has an essay entitled "One Nation, Under Godiva: Whom do we trust now?"
Posted at 09:10 by Howard Bashman



"Feinstein Opposes Nominee; Senator plans to vote against President Bush's choice for the 9th Circuit Court of Appeals": Henry Weinstein of The Los Angeles Times reports here today that "Sen. Dianne Feinstein (D-Calif.), a pivotal member of the Senate Judiciary Committee, disclosed Tuesday that she would vote against President Bush's choice of William G. Myers III for a seat on the U.S. 9th Circuit Court of Appeals -- a move likely to trigger a filibuster of the nomination." And The San Francisco Chronicle today contains an editorial entitled "Hostile to the environment."
Posted at 08:20 by Howard Bashman



"Court to consider 'God' in Pledge": Today's issue of The Washington Times contains this report. James Vicini of Reuters reports that "High Court Considers Pledge of Allegiance Case." United Press International reports that "Court hears 'under God' challenge." The Providence Journal contains an article headlined "Will God stay in the Pledge? The U.S. Supreme Court hears arguments today over whether the words 'under God' in the Pledge of Allegiance violate the separation of church and state." The San Jose Mercury News reports that "Pledge stirs little passion in most schools." The Santa Maria Times reports that "Students ponder the 'under God' in pledge." The Daily Local News of West Chester, Pennsylvania reports that "Freethought supports removal of 'under God.'" The Wisconsin State Journal reports that "Pledge controversy subsides in Madison School District." And The Portland (Maine) Press Herald today contains an article headlined "Full allegiance to the pledge?"
Posted at 07:15 by Howard Bashman



"Justice Scalia's Ethical Blindness": This editorial appears today in The Hartford Courant. The San Antonio Express-News contains an editorial entitled "Scalia makes bad call in Cheney energy case." The Nashville City Paper contains an editorial entitled "Scalia's rant much too harsh to be right." Newsday columnist Ed Lowe has an op-ed entitled "If it looks like a duck...." Law Professor Michael C. Dorf has an essay at FindLaw entitled "Justice Scalia's Persuasive But Elitist Response to the Duck Hunting Controversy." And The Washington Post publishes letters to the editor under the heading "Objectivity and Appearances."
Posted at 07:10 by Howard Bashman



"High court ruling in Everglades case pleases both sides": This article appears today in The Palm Beach Post. And The Miami Herald reports that "Glades pumping-station case sent back to court in Miami; The U.S. Supreme Court sends a closely watched Everglades pumping station case back to federal court in Miami."
Posted at 07:02 by Howard Bashman



"Justices Hear Arguments About H.M.O. Malpractice Lawsuits": Linda Greenhouse has this report today in The New York Times. Charles Lane of The Washington Post reports that "Justices Seem Unlikely To Allow Suing Insurers." David G. Savage of The Los Angeles Times reports that "Patients' Right to Sue HMOs Before High Court; The White House wants a Texas healthcare law, signed by then-Gov. Bush, to be voided." Lyle Denniston of The Boston Globe reports that "Justices seem to back HMOs on a patient-rights question." The Houston Chronicle reports that "Texas HMO law comes under fire from high court." The Fort Worth Star-Telegram reports that "Court hears HMO case." The Dallas Morning News reports that "Patients' right-to-sue case heard; Supreme Court to decide whether Texas law should stand." The Hartford Courant reports that "Justices Skeptical Of HMO Lawsuits; Case Tests Texas Statute." And The Baltimore Sun reports that "Right to sue HMOs argued; High court: Justices hear of patients' travails after HMOs rejected doctors' recommendations."
Posted at 06:45 by Howard Bashman



Tuesday, March 23, 2004
On the op-ed page of Wednesday's issue of The New York Times: Yale Professors Ian Ayres and Barry Nalebuff have an op-ed entitled "The Wrong Ticket to Ride." It addresses an issue in the Scalia-Cheney recusal morass that had crossed my mind on reading the Justice's recent memorandum -- the matter of airline ticket misrepresentation. And columnist William Safire has an op-ed entitled "Of God and the Flag."
Posted at 23:58 by Howard Bashman



Elsewhere in Tuesday's newspapers: The Los Angeles Times reports that "Evidence Allowed on Pain to Fetus; Critics of the ban on 'partial-birth' abortions say a doctor's testimony would be 'rank speculation.'" In same-sex marriage-related news, "Sponsors Reword Marriage Amendment Proposal; Seeking broader support in Congress, the revised measure to alter the Constitution might allow states to grant same-sex civil unions" and "Activism Defines S.F. City Attorney's Office; Drive to legalize gay marriage is the latest in a list of causes that includes a $12-billion victory over tobacco industry." An article reports that "Nichols' Oklahoma Bombing Trial Begins; State prosecutors call him a key player in the 1995 attack; The defense says he was a victim of conspirators; He could face the death penalty." In other news, "Army Gives Muslim Chaplain Written Reprimand; Capt. James J. Yee, punished for adultery and for downloading pornography, had initially been the focus of an espionage inquiry." In business news, "Microsoft Is Facing Record EU Fine; Other pending sanctions could limit how the company builds and sells software in Europe" and "Sizzler May Sue Over E. Coli Poisoning; High court rejects an appeal by meat supplier Excel seeking to end a suit, which includes diners who became ill." In local news, "Rising Rate of HIV Infection Renews Bathhouse Debate; L.A. County officials are considering tougher safe-sex rules for gay establishments; But some activists fear patrons' civil rights may be infringed" and "Gov. Can Be Queried in Libel Suit; Judge will allow written questions by attorneys for an alleged groping victim; She is suing over an e-mail sent by a Schwarzenegger aide." And an editorial is entitled "No Pal of the Environment."

In The Boston Globe, Lyle Denniston reports that "Judge dismisses riots reparations suit; While lamenting Tulsa atrocity, he cites late deadline." In same-sex marriage-related news, "Marriage measure revised to allow some state rights" and "'Tough guys' on gay marriage." In other news, "A reprimand, no apology for chaplain." And an editorial is entitled "Opening windows."

Finally for now, The Washington Times reports that "Marriage amendment rewrite allows civil unions."
Posted at 23:45 by Howard Bashman



"It was open season on credibility as much as on ducks": Syl Jones will have this op-ed in Wednesday's issue of The Minneapolis Star Tribune.
Posted at 23:32 by Howard Bashman



"A Big Case Over Two Little Words; Pledge Challenge Centers On 'Under God' Phrase": Charles Lane will have this report in Wednesday's issue of The Washington Post. The Guardian (UK) reports in Wednesday's issue that "Atheist appeals against religion in American oath." Reuters reports that "Dad in Flag Pledge Case Fights for Custody." Claire Cooper, legal affairs writer for The Sacramento Bee, previews tomorrow's oral argument in a short article headlined "U.S. Supreme Court to hear pledge oral arguments Wednesday."
Posted at 23:00 by Howard Bashman



Available online from law.com: Shannon P. Duffy reports that "Jury Finds N.Y. Times Defamed Business but Caused No Harm; Pharmaceutical sales firm awarded zero damages." An article is headlined "A Killer Called 'Youngster.'" In news from New York, "Lesbian Couple's Adoption Petition Clears N.Y. Court" and "Judge Declines to Hold WTC Leaseholder in Contempt." In other news, "Fla. Lawmakers May Vote Today to Curb Lawyer Advertising." And finally, "Time for Change at Philadelphia's 'It' Firm."
Posted at 22:33 by Howard Bashman



A victory for John Cornyn's sense of justice as the U.S. Court of Appeals for the Fifth Circuit reminds the state courts of Texas that the habeas corpus laws give federal courts the last word in death penalty cases: Victor Hugo Saldano is an inmate on death row in Texas. On direct appeal from his judgment of conviction and sentence, Saldano argued in the Court of Criminal Appeals of Texas that the jury was improperly allowed to consider his Hispanic race in deciding whether to impose the death penalty. That appellate court ruled that the objection had been waived. Saldano next appealed to the Supreme Court of the United States, where then-Texas Attorney General John Cornyn confessed error, admitting that the death sentence had been improperly obtained. In an order entered June 5, 2000, the U.S. Supreme Court vacated the judgment and remanded the case to the Texas Court of Criminal Appeals for reconsideration in light of Attorney General Cornyn's confession of error.

That confession of error and the U.S. Supreme Court's action in reliance on it were big news at the time. CNN.com reported that "Supreme Court throws out Texas killer's death sentence." BBC News reported that "Death sentence on Hispanic overturned." And National Public Radio reported that "Death Sentence Overturned in Texas" (Real Player required).

On remand, the Texas Court of Criminal Appeals again ruled against Saldano, concluding that Attorney General Cornyn did not possess authority to confess error in a criminal case. That court therefore reaffirmed its original conclusion that Saldano's trial counsel had waived any error by failing to object in the trial court. You can access the majority opinion here, a concurring opinion here, an opinion concurring in part and dissenting in part here, and a dissenting opinion here.

Following that ruling, Saldano filed a petition for writ of habeas corpus in the U.S. District Court for the Eastern District of Texas. As in the U.S. Supreme Court, the Attorney General of Texas litigates federal habeas petitions filed by Texas-based state prisoners. Attorney General Cornyn again attempted to confess error and waive the procedural bar on which the Texas Court of Criminal Appeals relied in denying relief. But the District Attorney of Collin County, Texas would have none of it. He asked the federal district court for permission to intervene to defend the death sentence against Saldano that his office had won. In June 2002, law.com published an article about the dispute headlined "County DAs Take On Texas AG's Stance in Death Row Case." The federal district court issued a rather odd decision holding that the political question doctrine prohibited it from adjudicating the District Attorney's motion to intervene. On appeal, the U.S. Court of Appeals for the Fifth Circuit reversed and, in a decision you can access here, ordered the federal district court to decide the District Attorney's motion to intervene on the merits. I reported on that decision the day it issued in this blog post.

On remand, the federal district court denied the District Attorney's motion to intervene and granted Saldano's petition for writ of habeas corpus, vacating the death sentence that then-Attorney General Cornyn had concluded was unlawfully obtained. By now, Cornyn had been elected to the U.S. Senate. The Collin County District Attorney refused to accept the trial court's ruling and appealed, once again, to the Fifth Circuit. Today, in an opinion you can access here, a unanimous three-judge panel of the Fifth Circuit affirmed the trial court's refusal to allow the District Attorney of Collin County to intervene, thereby upholding the federal district court's grant of habeas corpus as to sentencing in favor of Saldano. It took quite a long time, but John Cornyn's sense of justice has finally prevailed in this matter.
Posted at 21:15 by Howard Bashman



"Court Considers Patient Suits Against HMOs; At issue is whether patients can sue over the denial of appropriate medical care." David G. Savage of The Los Angeles Times has this update on a case argued today at the U.S. Supreme Court.
Posted at 19:30 by Howard Bashman



"Supreme Court to hear case on wording of Pledge of Allegiance": Stephen Henderson of Knight Ridder Newspapers provides this report.
Posted at 19:28 by Howard Bashman



"Jury to decide if Raytheon denied Tucsonan a job because of past addiction": The Tucson Citizen offers this news update. And The Associated Press reports that "Jury to decide why firm didn't hire recovering drug addict." I first mentioned today's ruling of the U.S. Court of Appeals for the Ninth Circuit in a post you can access here.
Posted at 19:20 by Howard Bashman



From this evening's broadcast of NPR's "All Things Considered": This evening's program contained segments entitled "High Court Hears Insurers' Challenge" (featuring Nina Totenberg); "Senate Panel Mulls Gay Marriage Ban"; "Economics of Same-Sex Marriage"; and "Europe to Fine Microsoft $600 Million" (Real Player required).
Posted at 19:10 by Howard Bashman



In tomorrow's issue of The Christian Science Monitor: Warren Richey will have an article headlined "'One nation' - but under what?" And a related article is headlined "Many kids don't see Pledge as religious; As 'under God' controversy goes to the Supreme Court, kids and parents ponder how big a deal it is to them."
Posted at 18:05 by Howard Bashman



"Frank Slams Possible Ban on Gay Marriage": The Associated Press provides this report.
Posted at 18:00 by Howard Bashman



"S.F. partners law withstands challenge": Bob Egelko of The San Francisco Chronicle reports here today that "San Francisco's groundbreaking domestic partners ordinance, which requires companies doing business with the city to give employees' registered partners the same benefits as spouses, survived its final legal challenge Monday when the U.S. Supreme Court denied a contractor's appeal." And in a separate article, Egelko reports that "The retrial of a civil rights suit by anti-logging protesters whose eyes were swabbed with liquid pepper spray by law enforcement officers trying to break up their sit-in will be held in San Francisco rather than Eureka, the U.S. Supreme Court confirmed Monday."
Posted at 17:53 by Howard Bashman



"The case pits a disbarred lawyer against a disrobed one." So begins this article published today in The Philadelphia Inquirer.
Posted at 17:43 by Howard Bashman



"Court throws out suit filed by Confederate group; Sons of Confederate Veterans want plaques restored to Supreme Court building lobby": David Pasztor today has this article (free registration required) in The Austin American-Statesman.
Posted at 17:42 by Howard Bashman



"Duck Blind Justice": The Ledger of Lakeland, Florida contains this editorial today.
Posted at 17:40 by Howard Bashman



"Civil rights petition is deceptive, suit says; Anti-affirmative action amendment doesn't adhere to state's rules, critics charge in court": This article appears today in The Ann Arbor News.
Posted at 17:30 by Howard Bashman



At 11 a.m. tomorrow, the Pledge of Allegiance case will be argued in the Supreme Court of the United States: It is quite possible that "How Appealing" has devoted more pixels to reporting on the Pledge of Allegiance case than it has to covering any other appellate matter. My first post on the case, addressing the Ninth Circuit's initial ruling, can be accessed here. My coverage of the Ninth Circuit's later ruling upholding Michael A. Newdow's standing can be accessed here.

When the Ninth Circuit denied rehearing en banc over the dissent of nine of that court's judges, I had this to say. I first commented on the Supreme Court's grant of review here. When Newdow, shortly after the grant of certiorari, said in an interview on CNN that "I think that the chances of not having a favorable ruling for my camp are close to nil," I quoted from that transcript here. I first noted a fascinating article headlined "'Pledge' judge pleased high court will hear case; 'Ted' Goodwin, part-time Sisters resident, says he has 'no idea' how Supreme Court will rule" published in The Bend (Oregon) Bugle in a post you can access here. And finally, just last month I explained here that the Ninth Circuit "has finally met a lawsuit brought by Michael A. Newdow that it doesn't like" -- namely, his challenge to the use of prayer at Presidential Inaugurations.

Stay tuned tomorrow for continuing coverage throughout the day, and I'd love to hear first-hand reports from any readers who happen to attend the oral argument.
Posted at 17:00 by Howard Bashman



"Another judge quits top court": The Toronto Globe and Mail reports here today that "Mr. Justice Frank Iacobucci shocked the legal world yesterday by announcing his retirement from the Supreme Court of Canada, creating a second vacancy on the court amid a heated political debate over the way top judges are appointed." In related news, The Calgary Herald contains an article headlined "Take care replacing judges, chief pleads; McLachlin urges Ottawa's prudence in filling vacancies."
Posted at 16:05 by Howard Bashman



"China in need of more good lawyers, says justice minister; China now has a total 102,000 certified lawyers for its population of 1.3 billion, implying that for every 12,745 Chinese people there is one lawyer." The People's Daily today contains this article.
Posted at 15:48 by Howard Bashman



"Judge's health at issue; Edwards' motion called 'slanderous'": The Advocate of Baton Rouge, Louisiana today contains an article that begins, "Former Gov. Edwin Edwards' latest attempt to get out of prison, by questioning a judge's use of prescription narcotics during his trial, is 'slanderous' and 'ugly,' federal prosecutors argue in court documents made public Monday."
Posted at 15:42 by Howard Bashman



"U.S. Justices Consider if Health Insurers Can Be Sued": James Vicini of Reuters provides this coverage. And Bloomberg News reports that "Aetna, Cigna Get High Court Support on Patient Suits."
Posted at 15:27 by Howard Bashman



"Will court purge 'God' in Pledge? Justices set to hear arguments Wednesday." Tom Curry has this report online at MSNBC.
Posted at 15:22 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "Court Backs Insurance Cos. in HMO Case." And in other news, "Supreme Court: Can judges go beyond sentence guidelines?"; "Judge OKs Fetus Pain Testimony at Trial"; and "Jurors Look at Evidence in Nichols Trial."
Posted at 15:20 by Howard Bashman



"Slate's Jurisprudence: SCOTUS Privacy, Pledge Cases." Today's broadcast of NPR's "Day to Day" included this interview (Real Player required) with Slate's Dahlia Lithwick.
Posted at 14:45 by Howard Bashman



"Judge asked to end role in foundation; Group contends his impartiality is in question": This article appears today in The Courier-Journal of Louisville, Kentucky.
Posted at 14:30 by Howard Bashman



Raytheon's victory in the U.S. Supreme Court does not translate into victory on remand before the U.S. Court of Appeals for the Ninth Circuit: Today the Ninth Circuit issued this ruling. The Supreme Court's ruling from December 2003 can be accessed here. Finally, the Ninth Circuit's initial ruling in the case can be accessed here.
Posted at 13:29 by Howard Bashman



"High Court Sidesteps Fla. Pollution Case": Gina Holland of The Associated Press provides this report. And Bloomberg News reports that "Top Court Aids Collection of Partnership Tax Debts."
Posted at 11:33 by Howard Bashman



Blog post just entered into the record of today's Senate Judiciary Committee hearing on "A Proposed Constitutional Amendment to Preserve Traditional Marriage": Congrats to Law Professor Eugene Volokh, whose blog post was just entered into the record at today's Judiciary Committee hearing. Individuals serving on the staff of U.S. Senator John Cornyn (R-TX) -- the Senator who entered the blog post into the record -- are big fans of law-related blogs.
Posted at 10:49 by Howard Bashman



Duck, duck, recuse: Even more editorial cartoons -- here; here; here; here; here; here; here; here; and here.
Posted at 10:26 by Howard Bashman



The Supreme Court of the United States has issued two opinions today:

1. Justice Clarence Thomas delivered the opinion for a unanimous Court in United States v. Galletti, No. 02-1389, and the judgment of the U.S. Court of Appeals for the Ninth Circuit was reversed and the case remanded. You can access here the syllabus, here the opinion, and here the oral argument transcript.

2. Justice Sandra Day O'Connor delivered the opinion of the Court in South Fla. Water Management Dist. v. Miccosukee Tribe, 02-626, and the judgment under review was vacated and the case remanded. You can access here the syllabus, here the majority opinion, here the opinion of Justice Antonin Scalia concurring in part and dissenting in part, and here the oral argument transcript.
Posted at 10:00 by Howard Bashman



On the agenda: At 10 a.m. today, the Supreme Court of the United States will issue one or more opinions in argued cases.
Posted at 09:45 by Howard Bashman



From today's issue of The Hill: An article headlined "Daschle: Move Dem nominees" begins, "Senate Minority Leader Tom Daschle (D-S.D.) is threatening to stall President Bush's judicial nominees if the president does not take action soon to appoint more than a dozen Democrats to government boards and commissions." And in other news, "After 'Memogate,' Democrats seek separate Internet access."
Posted at 09:44 by Howard Bashman



From today's broadcast of NPR's "Morning Edition": Today's broadcast contained segments entitled "Judicial Ethics" and "Nichols on Trial Again for Okla. Bombing" (Real Player required).
Posted at 09:35 by Howard Bashman



"A Proposed Constitutional Amendment to Preserve Traditional Marriage": That's the title of a hearing that will begin at 10 a.m. today before the full Senate Judiciary Committee. You can access the witness list at this link, and a live Webcast of the hearing will be available via this link (Real Player required).
Posted at 08:50 by Howard Bashman



"Incest statute could be changed; SJC says law doesn't apply to stepparents": This article appears today in The Boston Globe. And The Boston Herald today contains an article headlined "Court: No incest rap for stepdad." You can access yesterday's 4-3 ruling of the Supreme Judicial Court of Massachusetts at this link.
Posted at 08:22 by Howard Bashman



In Tuesday's newspapers: The New York Times reports that "Life on Line, Oklahoma Bombing Figure Is Tried Again." In same-sex marriage-related news, "Backers Revise Amendment on Marriage" and "Ministers Who Officiated at Same-Sex Marriages Go to Court." In business news, "Antitrust Fine for Microsoft Said to Be $613 Million"; "Executive Files Suit Over a Tax Shelter"; and "2 Lawyers Barred From U.S. Tax Court." In local news, "Another Judicial Nominee of Rowland Is Under Scrutiny"; "Williams's Defense Seeks to Use Video to Show Gun Could Have Misfired"; and "Judge Fails to Hold Developer in Contempt for Comments." An editorial is entitled "An Injudicious Nominee." And columnist David Brooks has an op-ed entitled "One Nation, Enriched by Biblical Wisdom."

The Washington Post reports that "Okla. Opens Trial by Calling Terry Nichols 'A Partner in Terror'; State Says Defendant Helped in 1995 Plot." In same-sex marriage-related news, "Same-Sex Marriage Ban Being Retooled; Civil Unions Would Be Up to States" and "Barney Frank, Throwing Cold Water Instead of Rice." In business news, "EU May Set Record With Microsoft Fine"; "Jurors Ask to Review Bonuses in Tyco Trial"; and "Panel Weighs Letting OSHA 'Pierce the Corporate Veil.'" Finally, Chris Lehmann reviews Law Professor Lawrence Lessig's new book, "Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity."
Posted at 06:40 by Howard Bashman



"They Pray for Judicial Restraint: Advisors to a volatile atheist hope he is up to the delicate task of arguing his Pledge of Allegiance case before the Supreme Court." The Los Angeles Times today contains this front page article.
Posted at 06:38 by Howard Bashman



"Supreme Court won't get involved in Nevada tax fight": This article appears today in The Reno Gazette-Journal. And The Las Vegas Review-Journal reports that "Court declines Nevada tax case; Ruling allowed taxes to be increased by simple majority."
Posted at 06:35 by Howard Bashman



You have the right to remain elusive? Linda Greenhouse of The New York Times reports today that "Supreme Court Hears Case of Man Who Withheld ID." Charles Lane of The Washington Post reports that "Justices Debate Right to Withhold Name From Police." David G. Savage of The Los Angeles Times reports that "High Court Weighs the Right to Stay Silent." James Vicini of Reuters reports that "Court Considers Right to Keep Name from Police." The Washington Times reports that "Justices hear ID-showing case." USA Today contains an article headlined "What's in a name? Too much, court told; Lawyer argues police ID checks violate privacy." And The Pittsburgh Post-Gazette reports that "Court weighs if you must tell police your name."
Posted at 06:30 by Howard Bashman



Choose litigation: The Atlanta Journal-Constitution reports today that "'Choose life' car tags get Senate OK."
Posted at 06:20 by Howard Bashman



"Judge Roth named in complaint; Group questions ethics of work for foundation": This article appears today in The News Journal of Wilmington, Delaware. I first mentioned and linked to Community Rights Counsel's report issued yesterday in a post you can access here.
Posted at 06:16 by Howard Bashman



Just ducky: The Dallas Morning News today contains an editorial entitled "Step Aside: Scalia needs to disqualify himself from case." In The Washington Post, columnist E.J. Dionne Jr. has an op-ed entitled "Why Scalia Should Duck Out." And The St. Petersburg Times publishes letters to the editor under the heading "Justice Scalia's self-defense is embarrassing."
Posted at 06:12 by Howard Bashman



"Patients' right to sue, sparked by local case, goes to high court": The Houston Chronicle contains this article today. And Anne Gearan of The Associated Press reports that "'HMO Horror Story' Comes to Supreme Court."
Posted at 06:00 by Howard Bashman



"Old Phrase Will Face New Phase: The man who challenged the words 'under God' in the Pledge of Allegiance will argue his case in the Supreme Court." This front page article appears today in The Los Angeles Times.
Posted at 01:10 by Howard Bashman



Elsewhere in Monday's newspapers: The Los Angeles Times reports that "Libel Suit May Put Gov. on the Spot; Alleged groping victim seeks Schwarzenegger deposition about e-mail his camp sent to media." In other news, "Judges Dim the Media Spotlight; Seeking to keep high-profile trials under control, jurists often restrict access to data; But the strategy leaves the public in the dark." And Alexander Cockburn has an op-ed entitled "Marriage Is a Misstep for Gay Rights."

Finally for now, The Boston Globe contains an editorial entitled "A hostile judge" arguing against the confirmation of Ninth Circuit nominee William Gerry Myers III.
Posted at 00:50 by Howard Bashman



"High court: incest law doesn't apply to stepparents." The Associated Press reports here on a ruling that the Supreme Judicial Court of Massachusetts issued on Monday.
Posted at 00:30 by Howard Bashman



"Investigation Shows Startling, High-Stakes Judicial Junketing Conflicts; Group Files Unprecedented Ethics Complaint Against Three High-Ranking Federal Judges": The organization Community Rights Counsel issued this press release on Monday. The press release provides links to the organization's report, as well as to the ethics complaints that the organization has filed.

In news coverage, Anne Gearan of The Associated Press reports that "3 Federal Judges Are Sued Over Ethics." Adam Liptak of The New York Times reports today that "3 Judges Criticized for Being on Advocacy Group's Board." And The Washington Post reports that "Judges Are Urged to Quit Board Positions; Group: Industry-Funded Foundation Has Interest in Cases Over Which Jurists Presided."
Posted at 00:24 by Howard Bashman



Monday, March 22, 2004
The Associated Press is reporting: Gina Holland reports that "Top Court Examines Texas Death Sentencing." And in other news, "Appeals court rules 'Choose Life' plates unconstitutional" and "Statements were inadmissible, Muhammad defense argues."
Posted at 19:59 by Howard Bashman



"Supreme Court to Decide Mandatory Identification Case": Linda Greenhouse of The New York Times provides this news update.
Posted at 19:55 by Howard Bashman



"Court hears case on forcing people to give identification": Stephen Henderson of Knight Ridder Newspapers provides this report.
Posted at 19:05 by Howard Bashman



From this evening's broadcast of NPR's "All Things Considered": This evening's broadcast featured segments entitled "Before 'Brown v. Board of Education'"; "Terry Nichols State Trial Stalls at Opening"; and "Tattoo Ban Could Be Lifted in S.C." (Real Player required).
Posted at 19:00 by Howard Bashman



"Hiibel Thumpers: The Supreme Court is suspicious." Slate's Dahlia Lithwick was back at the U.S. Supreme Court today and has this report.
Posted at 18:50 by Howard Bashman



In news from Georgia: The Associated Press reports that "'Choose Life' tag OK'd by Senate."
Posted at 17:52 by Howard Bashman



"Public breast-feeding exposes rift in views; Woman objects to club policy against suckling uncovered": This article appears today in The San Francisco Chronicle.
Posted at 17:43 by Howard Bashman



"School pledge case debated; Experts predict high court reversal": Marcia Coyle has this article in today's issue of The National Law Journal.
Posted at 17:11 by Howard Bashman



"The Supreme Court Confronts the Alien Tort Claims Act: Should the Court Gut the Law, as the Administration Suggests?" Law Professor Anthony J. Sebok has this essay online today at FindLaw.
Posted at 17:05 by Howard Bashman



"Supreme Court to Decide Mandatory ID Case": Gina Holland of The Associated Press provides this report on an oral argument that occurred earlier today before the Supreme Court of the United States.
Posted at 16:45 by Howard Bashman



Available online from National Public Radio: Today's broadcast of "Day to Day" contained a segment entitled "Supreme Court to Weigh Nevada Man's Right to Privacy." And today's broadcast of "Morning Edition" contained a segment entitled "Fetal Laws." Real Player is required to hear these segments.
Posted at 16:00 by Howard Bashman



You can't "Choose Life" on your license plate in South Carolina, a three-judge Fourth Circuit panel rules via three separate opinions: You can access today's ruling of the U.S. Court of Appeals for the Fourth Circuit at this link. The lead opinion, by Circuit Judge M. Blane Michael, begins:
South Carolina has a statute that authorizes a specialty license plate imprinted with the words "Choose Life." A comparable plate with a pro-choice message is not available. Planned Parenthood of South Carolina, Inc. (PPSC) and Renee Carter have sued three South Carolina officials on First Amendment grounds, claiming that the statute authorizing the Choose Life plate amounts to viewpoint discrimination by the State. The district court agreed and declared the statute unconstitutional. We affirm in three opinions, with Judge Luttig and Judge Gregory each writing separately to concur in the judgment.
You can view a sample of the license plate at this link, and a bunch of other South Carolina specialty plates can be viewed here. A little over one year ago, Slate published an essay by Dahlia Lithwick entitled "Poetic Licenses: Are 'Choose Life' license plates free speech or state-sponsored infomercials?"
Posted at 14:45 by Howard Bashman



The Associated Press is reporting: David Kravets reports that "Court to Decide Pledge of Allegiance Case." And in other news, "A Brief Look at Supreme Court Actions" and "Judge Permits Peterson TV Interviews."
Posted at 14:30 by Howard Bashman



Talk about precocious: The blog "Crescat Sententia" today offers "20 Questions with Eugene Volokh." Question two asks, "Finishing college at age 15 is pretty darn precocious. How did that happen?" By happenstance, an item in today's mail provides me with my own claim to precociousness. In order gain pro hac vice admission into a court before which I do not regularly practice law, I must submit a certificate of good standing from a court in which I do regularly practice law. In today's mail the certificate of good standing arrived, and it states that I was admitted to the practice of law in May 1975. If that were true, I would have been ten years old at the time.
Posted at 14:20 by Howard Bashman



"Court Web sites' data puzzling; Jurisdictions' policies differ on public vs. confidential information": This article appears today in The Akron Beacon Journal.
Posted at 14:00 by Howard Bashman



"Prosecutor: Nichols Hated U.S. Government." The Associated Press provides this report from Oklahoma.
Posted at 13:30 by Howard Bashman



Available online from C-SPAN: This morning Michael A. Newdow appeared on C-SPAN's "Washington Journal" program to discuss the Pledge of Allegiance case, which he will be arguing in the U.S. Supreme Court on Wednesday. You can view the segment at this link (Real Player required).

And this past Saturday's broadcast of "America & the Courts" contained video of the visit Justices Anthony M. Kennedy and Clarence Thomas made last week to a subcommittee of the U.S. House of Representatives to present the U.S. Supreme Court's budget request. You can view the segment at this link (Real Player required).
Posted at 12:05 by Howard Bashman



"Jurors deciding murder case fall victim to crime; Thief took personal items locked up in jury room": This article appeared in Saturday's issue of The Baltimore Sun.
Posted at 12:04 by Howard Bashman



"Tobacco litigants not done": The Belleville News-Democrat today contains an article that begins, "It's been a year since a Madison County judge issued an $11.1 billion verdict against Philip Morris in a 'light' cigarette case, but both sides say the battle isn't over."
Posted at 12:01 by Howard Bashman



The Daily Mail of Charleston, West Virginia is reporting: Today's newspaper contains articles headlined "Court pace stirs political talk; McGraw re-election bid affecting action, activist group says" and "Group to fight gay unions; 9 state lawmakers want to have a say in court case."
Posted at 11:55 by Howard Bashman



"Appeal puts Army's case on trial; A panel of judges struck down a soldier's death sentence; His former attorneys say they were rushed to trial": This article appears today in The Raleigh News & Observer.
Posted at 11:50 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Supreme Court Passes on Judicial Recusals." And in other news, "Supreme Court Ducks Tarzan Case." Headline writers are cautioned against using the terms "Supreme Court" and "ducks" in headlines unrelated to this matter.
Posted at 11:05 by Howard Bashman



Access online this morning's U.S. Supreme Court Order List: The list is available at this link. The Court today granted three petitions for writ of certiorari, two of which arise from the same case and have been consolidated for oral argument.
Posted at 10:00 by Howard Bashman



"One Nation 'Under God'? Atheist Tells Supreme Court That These Words Violate The First Amendment's Separation Of Church And State." This article appears today in The Hartford Courant, along with an article headlined "K. Of C. Brief Backs Pledge's 'Under God' In High Court Case." And The Baltimore Sun today contains an article headlined "'Under God': As Supreme Court weighs editing spirituality from the Pledge of Allegiance, we remember a Baltimore man's fighting words." Michael A. Newdow, the Sacramento-area atheist who will be arguing his own case before the U.S. Supreme Court on Wednesday, appeared this morning on C-SPAN's "Washington Journal." I will provide a link to the segment when it becomes available for online viewing.
Posted at 09:49 by Howard Bashman



"High court to review case of Houston killer with 67 IQ": The Houston Chronicle today contains an article that begins, "Two years after banning executions of mentally retarded killers, the U.S. Supreme Court today considers a Houston murderer's claim that federal judges reviewing Texas death sentences have failed to follow the high court's lead."
Posted at 09:40 by Howard Bashman



On the agenda: At 10 a.m. today, the Supreme Court of the United States will issue an Order List.
Posted at 09:30 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Nichols Trial Set to Get Under Way" and "Tobacco Industry Faces U.S. in Trial."
Posted at 09:10 by Howard Bashman



The Seattle Post-Intelligencer is reporting: Today's newspaper contains articles headlined "Judges' authority to mete out harsher sentence is challenged" and "Cases of wine and hard time; Debate ranges from 'insane control' to 'alcohol anarchy.'"
Posted at 09:00 by Howard Bashman



In Monday's newspapers: The New York Times reports that "Both Sides Polish Badges to Appear the Best Suited to Fight Corporate Crime." In other news, "Verdict for Lesbian Minister Looms Over Religious Meeting." An article reports that "More Troubles Await Microsoft in Europe." In other business news, "Rigas Trial Takes a Local Editor Far From Home." And in local news, "Leader of Schools, Ever in Shadow."

The Washington Post reports that "U.S. Faces Quandary In Freeing Detainees." In other news, "Gay GOP Group Wants Web Site Data Restored." Editorials are entitled "Missing a Fat Target" and "A Small Step Forward." And a letter to the editor appears under the heading "No Exceptions to Rights."

Finally for now, The Christian Science Monitor reports that "Third-largest US church grapples with gay issue; Methodist clergy in Pacific Northwest acquit a lesbian minister, despite church's policy against homosexuality."
Posted at 07:00 by Howard Bashman



"The overreaction to a duck hunt": This editorial appears today in The Rocky Mountain News. The Morning Call of Allentown, Pennsylvania contains an editorial entitled "Supreme Court should revisit rules on when members face conflicts of interest." The Fort Worth Star-Telegram contains an editorial entitled "Objection, Your Honor." The East Valley (Ariz.) Tribune contains an editorial entitled "The Sierra Club's trophy." The Troy Record contains an editorial entitled "Can anyone say the Supreme Court is impartial these days and keep a straight face?" Florida Today contains an editorial entitled "Tone-deaf justice: The law says to avoid conflicts of interest, but Justice Scalia rejects questioning." And on Friday, The Bennington Banner contained an editorial entitled "Scalia did not have improper relations."

In today's issue of The Washington Times, Jay Ambrose has an op-ed entitled "Sniping at Scalia." And letters to the editor appear in The Los Angeles Times under the heading "There's Ample Reason to Doubt Scalia's Objectivity."
Posted at 06:40 by Howard Bashman



"'Under God' key phrase for court this week": Lyle Denniston has this article today in The Boston Globe, along with a related article headlined "Father arguing case says law is on his side." The San Francisco Chronicle reports today that "Atheist dad ready for date at top court; California man to argue against 'under God' in pledge." The Newark Star-Ledger contains an article headlined "One phrase, 'under God,' with implications for all; Justices to decide if Pledge of Allegiance violates atheists' constitutional rights." And The Akron Beacon Journal reports that "Local teacher, pupils weigh pledge wording; Allegiance oath case would change practice in schools across U.S."

The Sacramento Bee on Friday contained an article headlined "Teens add some polish for Supreme Court hearing; Spotlight may be on the winners of a Pledge of Allegiance essay contest." And yesterday that newspaper published an editorial entitled "Affirm religious liberty: Restore 1892-1954 Pledge of Allegiance" and some related letters to the editor.
Posted at 06:20 by Howard Bashman



Sunday, March 21, 2004
"Pledge's 'under God' goes to justices; Father's fight to remove wording has become symbolic for some": This article will appear in Monday's edition of The Dallas Morning News.
Posted at 23:58 by Howard Bashman



Today's Tony Auth Cartoon: It's entitled "The blind leading the blind into the blind."
Posted at 23:55 by Howard Bashman



"Saving Skilling from Skid Row": Columnist Rick Casey has this essay in today's issue of The Houston Chronicle.
Posted at 23:50 by Howard Bashman



Elsewhere in Sunday's newspapers: The Los Angeles Times reports that "Law No Shield in Rape Trials; Two high-profile cases, one in Orange County, show that accusers' history still fair game." An article reports that "6 in Military Police Charged With Abuse; U.S. officers, suspended earlier, are accused of mistreating Iraqi detainees at a prison." In local news, "Over State Bar Objections, L.A. Lawyer Is Reinstated; A. Thomas Hunt, 64, lost his license to practice after a flood of client complaints; He blamed the problems on alcohol but says he's now sober"; "Diversity Lagging at Cal Poly; A largely automated admissions process hinders minority applicants at San Luis Obispo campus"; "Accused Professor Is Placed on Leave; Kerri Dunn, suspected of faking a hate crime, will not return to classes at Claremont McKenna"; "Taped Beating of 2 Young Inmates Prompts Outrage"; and (from Saturday's newspaper) "Actor Paul Reubens Pleads Guilty to Obscenity Charge; The 'Pee-wee Herman' television star is fined and put on three years' informal probation." An article reports that "Nothing but 'I Do' Will Do Now for Many Gays; Many denied wanting marriage when it wasn't a possibility; When that changed, new feelings emerged." In other news, "Another New York Traffic Jam; Appeals court orders return of thousands of vehicles impounded by police in drunk-driving and other cases." M. Gregg Bloche has an op-ed entitled "Bush Turns His Back on Fight for Patients' Rights; As governor, he sought accountability for HMOs; Now he favors industry immunity." Law Professor Jonathan Turley has an op-ed entitled "When Choice Becomes Tyranny; Abortion rights lobby steps over the line in Utah." And letters to the editor appear under the heading "Hate-Crime Drama Opens Up Big Questions."

Finally for now, The Washington Times reports that "Sniper tipsters get reward of $500,000."
Posted at 23:10 by Howard Bashman



"Delaware candidate filing fees upheld; Federal judges turn down Steve Biener's challenge": This article appears today in The News Journal of Wilmington, Delaware. Blogger Fritz Schranck comments here on last week's ruling of the U.S. Court of Appeals for the Third Circuit.
Posted at 22:35 by Howard Bashman



"One Crucial Issue in Pledge Case: What Does 'Under God' Mean?" Linda Greenhouse will have this article in Monday's issue of The New York Times.
Posted at 22:03 by Howard Bashman



"Court may weigh two-thirds issue": Yesterday The Las Vegas Review-Journal published an article that begins, "U.S. Supreme Court justices could announce on Monday whether they will take up a controversial Nevada court ruling that critics contend could make it easier to raise state taxes."
Posted at 22:01 by Howard Bashman



"It's A Blog World After All": This article appears in the April 2004 issue of Fast Company magazine.
Posted at 19:47 by Howard Bashman



Ten Commandments news: The Idaho Statesman today reports that "Monument may be moved at month's end; Boise mayor says relocation won't be a secret." And The Duluth Budgeteer News reported on Friday that "City backs down on 10 Commandments lawsuit; After council intrigue, decision to settle with MnCLU stands."
Posted at 19:30 by Howard Bashman



"If police ask who you are, do you have to say? The Supreme Court weighs a Nevada law that requires suspects identify themselves when requested by police." Warren Richey will have this article in Monday's issue of The Christian Science Monitor.
Posted at 18:50 by Howard Bashman



"Novice takes Pledge case to the top; Oral arguments at the Supreme Court": This article appears today in The Toledo Blade. And The American Prospect offers an article headlined "America's Atheist: Michael Newdow wants to leave God out of the Pledge of Allegiance; Soon, he'll get his day in court" and an online debate (part one here and part two here) between Barry Lynn, executive director of Americans United for Separation of Church and State, and Michael J. Perry, a professor at the Emory University School of Law.
Posted at 16:33 by Howard Bashman



"Like so many before him, Mialon was led to focus on orgasms through the study of constitutional law." Steven E. Landsburg provides the details online here at Slate.
Posted at 16:25 by Howard Bashman



In Sunday's newspapers: The New York Times reports that "Methodist Pastor, a Lesbian, Is Cleared by a Church Jury." In other news, "6 G.I.'s in Iraq Are Charged With Mistreating Prisoners." An article reports that "Seeking Security, Schools Are Turning to the Sniff Test." In same-sex marriage-related news, "At a Gay Synagogue, a Rabbi Isn't Fazed by Legalities" and "Top Hats and Two Grooms on a Cake, but no Licenses." An article in the "Week in Review" section describes when John Kerry and J. Harvie Wilkinson III brokered an election or two. And letters to the editor appear under the heading "A Duck Hunt That's Proving Costly."

The Washington Post reports that "Methodist Jury Acquits Gay Pastor." In other news, "Sniper Trial Took Toll on Attorneys; Muhammad's Lawyers Shoulder Own Stress, Depression and Guilt." And letters to the editor appear under the heading "Justice for Guantanamo Detainees."
Posted at 16:10 by Howard Bashman



"Dick Cheney and the Supremes": Mike Luckovich had this editorial cartoon in Friday's issue of The Atlanta Journal-Constitution. And for those who can't just stop at just one editorial cartoon, help yourself to a second, third, fourth, fifth, and sixth.
Posted at 15:34 by Howard Bashman



"Justice Rehnquist Writes on Hayes vs. Tilden, With His Mind on Bush v. Gore": Adam Cohen has this "Editorial Observer" column today in The New York Times.
Posted at 15:29 by Howard Bashman



"Jets for Justices": Writing at "The Right Coast" blog, Law Professor Tom Smith suggests here that U.S. Supreme Court Justices should have their own official airplanes and an official theme song, too.
Posted at 12:23 by Howard Bashman



"Lawyer overcomes life's trials; Paraplegic attorney in Qwest case respected for tenacity": Today's issue of The Denver Post contains this article.
Posted at 12:13 by Howard Bashman



"Coble backs bill to veto high court": This article appears today in The News & Record of Greensboro, North Carolina. Columnist Tim Chitwood, who writes for The Ledger-Enquirer of Columbus, Georgia, has an op-ed today entitled "Fight the power" explaining in parody why we should favor this legislation.
Posted at 12:04 by Howard Bashman



"You have the right to carry silent." Earlier this week, I noted here a decision from the Supreme Court of Colorado considering the consequences of an especially poor translation into Spanish of Miranda warnings. Today, The Greeley Tribune contains articles headlined "Woman worries translation mistake will lead to acquittal" and "Translation mistake leads Greeley police to review procedures."
Posted at 11:55 by Howard Bashman



"A year later, tobacco opponents carry on fight": This article appears today in The Telegraph of Alton, Illinois.
Posted at 11:51 by Howard Bashman



"Starr in a mellow mode; Former prosecutor working for wineries that want to ship directly to customers": The Associated Press provides this report.
Posted at 11:45 by Howard Bashman



"Patients' Rights To Sue At Stake": The Hartford Courant today provides this preview of a case that Miguel A. Estrada will be arguing in the U.S. Supreme Court on Tuesday.
Posted at 10:04 by Howard Bashman



"Nevada privacy case lands before U.S. Supreme Court": This article appears today in The Reno Gazette-Journal.
Posted at 10:00 by Howard Bashman



"Judge who ruled against mountaintop mining dies": The Associated Press reports here that U.S. District Judge Charles H. Haden II of the Southern District of West Virginia, who earlier served as chief justice of the West Virginia Supreme Court of Appeals, has died. And The Sunday Gazette-Mail reports that "Judge Charles Haden dies."
Posted at 09:54 by Howard Bashman



"What is 'cruel and unusual'? Murderer takes claim to high court." The Birmingham News today contains an article that begins, "An Alabama Death Row inmate whose execution was delayed at the last moment in October takes his case to the U.S. Supreme Court this month."
Posted at 09:48 by Howard Bashman



"Fight over last name helps jam isle courts; A divorced couple's dispute over a hyphen shows the huge cost of frivolous litigation": This article appears today in The Honolulu Star-Bulletin.
Posted at 09:41 by Howard Bashman



"Clashing Opinions on Justices' Recusals; Supreme Court jurists have different views on how they define a conflict of interest": David G. Savage and Richard A. Serrano today have this article in The Los Angeles Times. And in the March 29, 2004 issue of Newsweek, Stuart Taylor Jr. has a short item headlined "Scalia: Is Justice (Duck) Blind?"

The St. Petersburg Times today contains an editorial entitled "Refusing to recuse." The Palm Beach Post contains an editorial entitled "Lax ethics on high court." And The New York Post contains an editorial entitled "Scalia shoots down his critics."

In commentary today, columnist Maureen Dowd has an op-ed entitled "Quid Pro Quack" today in The New York Times. And in The Houston Chronicle, columnist Cragg Hines has an op-ed entitled "Scalia's ducking of recusal injures court."
Posted at 09:30 by Howard Bashman



"Polygamists see potential in recent marital movement": Today's issue of The Salt Lake Tribune contains this report.
Posted at 09:22 by Howard Bashman



"Father set to argue 'under God' case at Supreme Court": This article appears today in The Houston Chronicle. In related coverage, Howard Mintz of The San Jose Mercury News today reports that "Pledge case to be heard." The Evansville Courier & Press reports that "'Under god' under fire; Supreme Court scheduled to decide if words stay in Pledge of Allegiance." The March 29, 2004 issue of Newsweek contains an article headlined "A Family And a Flag: Behind the pledge case lies a house divided." And The Washington Post today contains an essay by Linda R. Monk entitled "A Preamble Instead of a Pledge."
Posted at 09:20 by Howard Bashman



"Supreme Court to take death penalty case of man with low IQ": Stephen Henderson of Knight Ridder Newspapers today provides this report.
Posted at 09:00 by Howard Bashman



Saturday, March 20, 2004
Available online from law.com: Tony Mauro has an article headlined "Showdown: Supreme Court will hear case by atheist hoping to cut the words 'under God' from the Pledge of Allegiance." Jonathan Ringel reports that "11th Circuit Judge Urges High Court Review in Exxon Case." And Shannon P. Duffy reports that "3rd Circuit Limits Arbitrators' Subpoena Power."
Posted at 21:05 by Howard Bashman



"Scalia ducks his judicial duty": Columnist Stebbins Jefferson has this essay today in The Palm Beach Post.
Posted at 21:02 by Howard Bashman



From the current issue of The Harvard Law Record: An article reports that "Tribe explains Goodridge." In other news, Clinton Dick reports that "Glendon to lead Pontifical Academy." Adam White has an op-ed entitled "Activists, judged." And Jonathan Skrmetti has an op-ed entitled "Pro-GOP, pro-gay-marriage, but anti-SJC."
Posted at 19:07 by Howard Bashman



"Sex harassment lawsuit tests rights of workers who quit under duress": The AP offers this preview of Pennsylvania State Police v. Suders, which is scheduled to be argued in the Supreme Court of the United States on March 31, 2004.
Posted at 18:55 by Howard Bashman



"Yale, Knight Foundation end journalism law program": The Associated Press provides this report.
Posted at 18:43 by Howard Bashman



"A Case of Blind Justice Among a Bunch of Friends": Adam Liptak will have an article in tomorrow's "Week in Review" section of The New York Times in which six law professors evaluate Justice Antonin Scalia's memorandum explaining the reasons for not recusing from the case involving Vice President Cheney.
Posted at 18:37 by Howard Bashman



In Sunday's issue of The New York Times: Tomorrow's newspaper will contain, among other things, articles headlined "When Prosecutors Err, Others Pay the Price" and "Guantanamo Detainees Deliver Intelligence Gains."
Posted at 18:33 by Howard Bashman



To the U.S. Court of Appeals for the Eleventh Circuit the sex toy cases just keep coming: Who can forget back from July 2002 the news that "Woman sues Delta, says she was humiliated over sex toy." Or, as The St. Petersburg Times reported, "Woman suing airline over toy; She says Delta Airlines workers held her up for ridicule after finding an adult novelty in her luggage." The case ended up going to trial in the U.S. District Court for the Middle District of Florida where, at the close of all the evidence, the court entered judgment as a matter of law in favor of defendant Delta Air Lines. The woman whose sex toy had the misfortune to activate just as her luggage was being loaded onto the airplane has appealed from that adverse ruling to the Eleventh Circuit. And on Monday of next week, her attorney will be filing this opening brief for appellant.

Only time will tell whether Circuit Judge William H. Pryor, Jr., who as Attorney General of Alabama sought to uphold that State's law criminalizing the distribution of sex toys, will be assigned to hear this appeal and, if so, whether his involvement in the earlier suit will cause him to recuse. An appeal from the trial court's decision striking down as unconstitutional that Alabama law remains pending for decision before the Eleventh Circuit.
Posted at 15:33 by Howard Bashman



The Detroit Free Press is reporting: Today's newspaper contains articles headlined "Preferences foe stumps in state; He calls affirmative action unfair"; "Implant sufferers to finally see cash; Dow Corning ready to pay after appeal in silicone case is dropped"; and "Freed woman is ordered back to prison -- for life."
Posted at 15:24 by Howard Bashman



"Law School Vets Back Military on Recruitment": This article appeared yesterday in The Hoya of Georgetown University. You can access the appellate brief discussed in the article at this link.
Posted at 15:20 by Howard Bashman



In Saturday's newspapers: In The New York Times, Neil A. Lewis reports that "Charges Dropped Against Chaplain." An article reports that "New York Hospital Is Ordered to Release Abortion Records." In other news, "Pollution Dispute in Northwest Straddles the Border." In local news, "As Pressure on Rowland Intensifies, Few Express Support" and "Police Release Ground Rules for Antiwar Demonstration." An editorial is entitled "Europe Takes on Windows." And Law Professor William B. Rubenstein has an op-ed entitled "Hiding Behind the Constitution."

The Washington Post reports that "Army Drops Chaplain's Court-Martial." A front page article reports that "IRS Opting Not to Go After Many Scofflaws; Abandoned Cases Worth $16 Billion." In news from Washington State, "Methodist Jury Ponders Lesbian Minister's Fate." An article reports that "Sniper Rewards Allotted; Two Men Will Share $500,000 for Their Assistance." In other news, "Jury Requests Tyco Financial Documents; Painstaking Review of Evidence May Confront Trial's Main Issue." And an editorial is entitled "What's the Problem?"

Finally for now, OpinionJournal offers an essay by Shelby Steele entitled "Selma to San Francisco? Same-sex marriage is not a civil rights issue."
Posted at 14:30 by Howard Bashman



"Arrid Total Justice": Jeremy Blachman, writing at the brand new "de novo" blog, considers what's next on the agenda for the U.S. Supreme Court's Justices now that one is featured on an antiperspirant maker's trading card. You can view the trading cards at this link (PDF document). I must get one.
Posted at 14:17 by Howard Bashman



Totally bodacious: Yesterday afternoon I linked here to an article by James Gleick headlined "Get Out of My Namespace" that appears in tomorrow's issue of The New York Times Magazine.

The article is quite fascinating. Here is just one example:
Before there was an Internet, Ratan N. Tata of Bombay, chairman of the Tata Group, India's pre-eminent business empire, had no occasion to butt heads with an American pornographer, but he cares about his name and its value. He has controlled Tata Steel, Tata Engineering, Tata Power, Tata Chemicals, Tata Finance, Tata Telecom and Tata Tea, not to mention Tata Sons Ltd. and the Sir Ratan Tata Trust.

Then a New Jerseyan registered the domain name BODACIOUS-TATAS.COM and used it to display what subsequent legal proceedings referred to as ''sexually explicit material.'' The House of Tata went to court, arguing that the Web site was taking ''a cash ride'' on its good name. Tata won an injunction in 1999. This, however, as handed down by the Honorable High Court of Delhi, had no practical effect on the porn site in New Jersey. So the company filed a complaint with the World Intellectual Property Organization, demanding the cancellation of the domain name.

The arbitrator's decision has become notorious.

First, he ruled that TATA is an exemplary trademark: ''It is now generally accepted in most countries that well-known marks, particularly those surrounded by an aura of high repute, excellent quality and respectability, deserve wide protection.''

Then he considered the problem of the extra word, BODACIOUS. The problem was whether TATA and BODACIOUS-TATAS were ''confusingly similar'' -- the canonical test of trademark violation. He decided they were: ''The addition of a word like bodacious ['South Midland and Southern U.S. 1. thorough; blatant; unmistakable; 2. remarkable; outstanding; 3. audacious; bold; brazen' / Webster's Encyclopedic Unabridged Dictionary of the English Language, 1989], and the addition of the letter s, does not render the Domain Name less identical or less confusingly similar to a trade or service mark. Indeed, the opposite is true, particularly when one considers most of the meanings attributed to the word bodacious.'' Because of the Internet's ''tremendous reach,'' he ruled, people might well be fooled into thinking that the Tata Group had gone into the pornography business. Domain name canceled.
The excerpt I've quoted begins here and ends here. Yet the entire article, as I have said, is well worth a look.
Posted at 14:00 by Howard Bashman



"Starr tells lawyers: heed 'grand tradition.'" This article appears today in The Richmond Times-Dispatch.
Posted at 09:43 by Howard Bashman



Ninth Circuit Judge A. Wallace Tashima announces he will take senior status on June 30, 2004: See this list of future vacancies maintained by the Administrative Office of the United States Courts. I had the pleasure of meeting Judge Tashima in Philadelphia last summer. More recently, I was pleased to see that he favors the proposed new Federal Rule of Appellate Procedure that would allow unpublished and non-precedential opinions to be cited in all federal appellate courts.
Posted at 09:42 by Howard Bashman



"Deal sets up marriage ruling; Both sides in the gay marriage debate agree to use an ACLU lawsuit to try to speed the case to the Oregon Supreme Court": The Oregonian today contains this article. And The Salem Statesman Journal reports that "Marriage test case selected; A structured suit will address the constitutional issues."

Meanwhile, in news from Canada, The Montreal Gazette today reports that "Gays can marry in Quebec; Court of Appeal throws out challenge, clearing way for same-sex couples to wed." And The Toronto Globe and Mail reports that "Same-sex couples win right to marry in Quebec."
Posted at 09:25 by Howard Bashman



"Mr. Robertson Withdraws": Yesterday, The Hartford Courant published an editorial that begins, "James K. Robertson made the right decision Thursday in withdrawing his name from nomination as a Superior Court judge."
Posted at 09:20 by Howard Bashman



"[T]he justice comes across as more concerned with defending his right to accept 'social courtesies,' like rides on the vice president's jet, than with protecting the Supreme Court's integrity." The New York Times today contains an editorial entitled "Justice in a Bind." And The Journal News of Westchester, New York today contains an editorial entitled "Scalia's quack opinion."
Posted at 09:15 by Howard Bashman



"Godless Pledge is 'nuts,' but it's legal, experts say": This article appears today in The Seattle Post-Intelligencer. And The Salt Lake Tribune reports that "'Outsiders' weigh in against Pledge's 'under God.'"
Posted at 09:11 by Howard Bashman



Friday, March 19, 2004
Elsewhere in Friday's newspapers: USA Today reports that "In memo, Scalia stands ground on Cheney case." And in other news, "Lawsuit alleges violation of gun ban; Assault weapons are being rebuilt."

The Los Angeles Times reports that "Appeal of Phone Ruling Opposed; Leaders of the House panel overseeing the FCC urge the Justice Department to let stand a lower court's reversal of competition rules." An article reports that "Delay Sought in Ruling on S.F. Mayor; City asks state high court not to consider whether Newsom broke law in allowing gay marriages." In other news, "FCC Rules Bono Remark Is Indecent." In business news, "EU Rejects Microsoft's Bid to Stop Sanctions." In news pertaining to the Kobe Bryant case, "Medical Records Key to Next Hearing." An editorial is entitled "Ashcroft's Fear Tactic." And letters to the editor appear under the heading "Living 'Death Sentence' at Corcoran State Prison."

The Boston Globe reports that "Proposal states civil union limits; Federal benefits aren't included." And in other news, "Microsoft, EC fail to reach accord; Expected ruling could alter way firm operates."
Posted at 23:15 by Howard Bashman



"Prosecutors to argue case before U.S. Supreme Court; Grant County case tests sentencing laws": This article appears today in The Columbia Basin Herald of Washington State.
Posted at 22:50 by Howard Bashman



"Jury awards Nevadans $52 million in suit over Ford truck brakes": The Associated Press provides this report. The lawyer for the plaintiffs quoted in the article is the son of a certain U.S. Senator from Pennsylvania.
Posted at 22:26 by Howard Bashman



See Michael Newdow debate the Pledge of Allegiance case: C-SPAN recorded and televised this hour-long program yesterday, and now you can view it online, on demand by clicking here (Real Player required).
Posted at 22:10 by Howard Bashman



"O'Connor Honored As Arrid 'Total Woman'": In advance of the forthcoming bobblehead doll, Justice Sandra Day O'Connor is appearing on an antiperspirant's trading card, Anne Gearan of The Associated Press reports here. Only time will tell what recusal issues The Los Angeles Times will perceive as arising from this set of facts.
Posted at 22:05 by Howard Bashman



"Controversy over Texas Abortion I.D. Law": Tonight's broadcast of NPR's "All Things Considered" included this report (Real Player required).
Posted at 20:50 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "'Pee-Wee' Pleads Guilty to Obscenity"; "Critics Decry Interior Internet Shutdown"; and "Death Penalty Sought in Taped Abduction."
Posted at 20:48 by Howard Bashman



More bad news for the illiterate: I could write at length about this ruling that the U.S. Court of Appeals for the Fifth Circuit handed down today holding that a contracting party's illiteracy is not a valid basis for denying enforcement of a written arbitration agreement, but how would anything that I say here benefit the illiterate? Lest anyone forget about the affliction under which the losing parties labored, the opinion repeatedly refers to them as the "Illiterate Appellees."
Posted at 19:25 by Howard Bashman



"Charges Dropped Against Muslim Chaplain": The Associated Press provides this report.
Posted at 19:13 by Howard Bashman



The U.S. Supreme Court has posted online the "Hearing List" showing who will be presenting oral argument to the Court during the next two weeks: You can access the list at this link.
Posted at 17:49 by Howard Bashman



As of yesterday, you can't exclaim on TV some words that rhyme with "duck": But Heidi Bond has found a way around that problem -- and has even managed to find rhymes for Cheney and Scalia -- here at her "Letters of Marque" blog. (A dissenting view, also in rhyme, appears in the first comment to her post.)
Posted at 16:50 by Howard Bashman



"Nebraska Court Revives Microsoft Suit": The Supreme Court of Nebraska today issued a 4-3 ruling that reinstates a consumer overcharge for operating system software class action, The Associated Press reports here. This must come as especially unwelcome news for Microsoft, because that same appellate court had previously affirmed by an equally divided court the trial court's dismissal of this case. In other coverage, c|net News.Com reports that "Nebraska court puts Microsoft back in the dock."
Posted at 16:30 by Howard Bashman



"Here, we confront a course of conduct involving an attorney’s abuse of a military office, a violation of the duty of loyalty, fraternization, and repeated commission of the same criminal offense for which the attorney's client was on trial." The U.S. Court of Appeals for the Armed Forces today issued a very interesting decision in a case that, according to the majority opinion, "involves a volatile mixture of sex and crime in the context of the military's treatment of fraternization and sodomy as criminal offenses."

A separate appeal challenging whether the military may continue to prohibit consensual sodomy in the aftermath of the U.S. Supreme Court's ruling in Lawrence v. Texas remains pending for decision before this very same Armed Forces appeals court. I previously published a reader's summary of the oral argument in that case at this link, and National Public Radio back in October 2003 had this report on the oral argument.
Posted at 15:51 by Howard Bashman



"Legal scholars troubled over Democrats' memo": The Washington Times today contains an article that begins, "As the dust settles in the Judiciary Committee fuss over Republican snooping into Democrats' memos, several legal scholars said yesterday they were shocked by a memo showing staffers in Sen. Edward M. Kennedy's office plotting to manipulate one of the most significant court cases in recent years."
Posted at 15:10 by Howard Bashman



"Supreme Court Votes to Allow Execution": The Associated Press provides this report. Update: The Court's order is available here.
Posted at 14:56 by Howard Bashman



Judicial economy: Today the U.S. Court of Appeals for the Second Circuit issued a five-paragraph majority opinion, accompanied by a dissenting opinion that states, in full: "Because my vote, either to affirm or reverse in this troublesome case, will not affect the decision of my colleagues, I simply note that I dissent."
Posted at 14:45 by Howard Bashman



"Get Out of My Namespace": James Gleick will have this article in Sunday's issue of The New York Times Magazine.
Posted at 14:40 by Howard Bashman



"Gitmo' Better Blues: The folly of the new Guantanamo trials." Slate has recently posted online this essay written by Law Professor Neal Katyal.
Posted at 14:26 by Howard Bashman



On further review, FCC decides f-word is bad: Blogger Ernest Miller writes that "FCC Revives Notion of the Profane." Yesterday the Federal Communications Commission issued this ruling and this accompanying press release. Yesterday's action overturned this decision reached in the same matter back in October 2003, as I first noted here. Yesterday's development is of course additional good news for actors who deplore the f-word. No word yet on whether the agency, to avoid any ambiguity, will henceforth be known merely as the CC.
Posted at 14:00 by Howard Bashman



Access online the Third Circuit reply brief filed by the plaintiffs seeking to invalidate the Solomon Amendment: The plaintiffs' reply brief can be viewed at this link. Other documents filed in the appellate and trial courts can be accessed via this link.
Posted at 13:31 by Howard Bashman



"Supreme Court to Hear Suits Against HMOs": The Associated Press provides this report. Next week some very interesting cases will be argued before the U.S. Supreme Court.
Posted at 12:55 by Howard Bashman



Bob Egelko is reporting: Today's issue of The San Francisco Chronicle contains articles headlined "Court urged to let gay weddings go on"; "Court outlines protest rights; Police can't enlarge buffer zones, must be evenhanded"; and "Arbitrator rules set for court; Justices to hear dispute between state, exchanges."
Posted at 11:44 by Howard Bashman



"Wash. Man Pleads in Cambodia Sex Case": The Associated Press reports here that "The first person prosecuted under a law protecting children overseas from sex crimes by U.S. citizens has pleaded guilty to having sexual contact with boys in Cambodia, the U.S. attorney's office said."
Posted at 11:41 by Howard Bashman



Today's news regarding racial preferences in university admissions: The Atlanta Journal-Constitution reports today that "UGA may consider race; Faculty leaders support revising admissions policy to boost diversity." The Pittsburgh Post-Gazette reports that "CMU opens two minority programs to all." And The Detroit Free Press contains a report from San Francisco headlined "A more homogenized campus: Some minorities scarcer on Calif. college campuses."
Posted at 11:35 by Howard Bashman



In news from Michigan: The Detroit Free Press reports today that "Death penalty is voted down, again; Strong opposition sinks proposed amendment."
Posted at 11:30 by Howard Bashman



C-SPAN 4 is ready to launch just as soon as the U.S. Supreme Court allows oral arguments to be televised: The Washington Post today contains an article headlined "C-SPAN Gauged 25 Years After Start; Network Has Given Public Wider Access to Congress." In assessing the likelihood of televised U.S. Supreme Court oral arguments, it's perhaps useful to recall the following: "Souter remains a staunch opponent of televising court proceedings, remarking in 1996, 'I can tell you the day you see a camera come into our courtroom, it's going to roll over my dead body.'"
Posted at 11:25 by Howard Bashman



The Houston Chronicle is reporting: Today's newspaper contains articles headlined "Station owners look for payday; Gasoline vendors expect Exxon Mobil settlement" and "Little-known spring break destination: library."
Posted at 11:15 by Howard Bashman



"Teen's right to wear sweatshirt is restored; Denbigh High responds to letter threatening lawsuit": Today's edition of The Daily Press of Hampton Roads, Virginia contains an article that begins, "A Denbigh High School student prevented from wearing an anti-abortion sweatshirt in school last month by a school administrator now can wear it after a Michigan law center raised the possibility of a lawsuit."
Posted at 10:01 by Howard Bashman



"State to pay in 1986 flood; Its appeal rejected, California is liable for millions in damages": This article appears today in The Sacramento Bee.
Posted at 10:00 by Howard Bashman



"Spy, Adulterer, Whatever: Capt. James Yee's prosecutors make the case for due process." Jacob Sullum has this essay online today at Reason.
Posted at 09:58 by Howard Bashman



"County Rescinds Vote to Ban Gay Residents; In the courtroom of the 1925 'Monkey Trial,' commissioners retreat amid ideological furor": This report from Tennessee appears today in The Los Angeles Times.
Posted at 09:45 by Howard Bashman



The Supreme Court of Mississippi upholds state law banning the sale of sex toys: The Associated Press reports that "Justices uphold sex toys ban; No fundamental right of access to purchase devices, court says." You can access yesterday's ruling at this link. The opinion begins, "Section 97-29-105 of the Mississippi Code provides that knowingly selling, advertising, publishing or exhibiting any three-dimensional device designed or marketed as useful primarily for the stimulation of human genitalia ('sexual devices') is illegal." The full text of the statute in question is accessible at this link.
Posted at 09:20 by Howard Bashman



In Friday's newspapers: The New York Times reports that "Citizens' Group and Others Sue New York State Over System for Selecting Top Trial Judges." In same-sex marriage-related news, "City Hall Steps: Pulpit, and Now an Altar" and "For Children of Gays, Marriage Brings Joy." In business news, "Microsoft's Bid to Settle Case in Europe Fails" and "Jury's Queries Suggest Doubt on Tyco Charges." In local news, "From Flashing Letterman to Being Flashed a Badge"; "U.S. Says Buyer of Governor's Condo Talked of Pressure"; and "Figure in Murder Case Turns Himself In, Only to Be Turned Away." And a letter to the editor appears under the heading "Fast-Food Lawsuits."

The Washington Post reports that "Now Portland Is Gay-Marriage Capital." In news from Washington State, "Minister in Homosexuality Trial; Compliance With United Methodist Church Law at Issue." And in business news, "EU, Microsoft Cannot Agree On Settlement"; "Microsoft Is Facing Long-Term Adjustment; Firm's Basic Strategy Could Be Disrupted"; "After 5 Months, Tyco Jury Mulls Executives' Fate"; and "Enron Examiner: Lay Should Have Known About Problems."
Posted at 07:40 by Howard Bashman



"GOP Lawmakers Ask Ginsburg to Withdraw from Abortion Cases": This article appears today in The Los Angeles Times.
Posted at 07:35 by Howard Bashman



"Scalia Sees No Reason to Sit Out Cheney Case; In a 21-page opinion, the justice says social contacts such as a hunting trip do not pose conflicts and 'ought not to be' abandoned." David G. Savage and Richard A. Serrano have this article in today's edition of The Los Angeles Times. Law Professors Erwin Chemerinsky and Steven Lubet have a related op-ed entitled "In One Key Area, (the Chief) Justice Is Indeed Blind."

In other coverage, Lyle Denniston of The Boston Globe reports that "Scalia won't sit out case against Cheney; Says trip together didn't pose conflict of interest." The Chicago Tribune reports that "Scalia won't recuse self in Cheney case; Says hunting trip with VP is not conflict of interest." Gina Holland of The Associated Press has an article headlined "Supreme Court Dilemma: Socialize or Not?" The Washington Post contains an editorial entitled "Mr. Scalia's Objectivity." And The Toronto Globe and Mail contains an editorial entitled "What, me susceptible?"
Posted at 07:10 by Howard Bashman



Thursday, March 18, 2004
Ten Commandments news: From Minnesota, The Star Tribune today reports that "Ten Commandments fight isn't over in Duluth." The Duluth News Tribune, meanwhile, reports that "Monument vote set in stone; Councilor Reinert doesn't change his vote and the mayor agrees to settle the suit, but a group petitions to put the issue on November's ballot." And you can access yesterday's coverage from Minnesota Public Radio at this link.

From Wyoming, The Casper Star-Tribune reported yesterday that "St. Patrick's installs 10 Commandments."

Finally, in news from Tennessee, The Monroe County Advocate & Democrat yesterday reported that "ACLU requests removal of Ten Commandments."
Posted at 23:31 by Howard Bashman



"Scalia Questions Ginsburg's Absence from Cheney Duck Hunt": "ScrappleFace" reports here that "Supreme Court Justice Antonin Scalia today claimed that his colleague, Justice Ruth Bader Ginsburg, should recuse herself from a case involving Vice President Dick Cheney because she refused to hunt ducks with Mr. Cheney in January."
Posted at 23:10 by Howard Bashman



Elsewhere in Thursday's newspapers: The Boston Globe reports that "Maneuver may help marriage measure."

The Los Angeles Times contains an article headlined "Gay Republicans Spurred to Action; The president's support of a constitutional ban on same-sex marriage is stepping up their fundraising efforts to fight the proposal." In business news, "Class-Action Status in Tire Case Disallowed." And in local news, "Man Indicted in Attacks on SUV Dealers; William Cottrell, a Caltech student accused in firebombings that caused $3.5 million in damage, could face at least 35 years in prison."
Posted at 23:06 by Howard Bashman



"Scalia Won't Sit Out Case On Cheney; Memo Defends Trip With VP": Charles Lane will have this front page article Friday in The Washington Post.
Posted at 23:00 by Howard Bashman



"Scalia Refusing to Take Himself Off Cheney Case": This article will appear in Friday's issue of The New York Times.
Posted at 22:35 by Howard Bashman



Available online from law.com: Tony Mauro reports that "Scalia Stands Firm on Cheney Recusal." In other news, "Supremes Consider Risks of Self-Representation; Case led by Kenneth Starr asks justices to give trial courts the chance to appoint defense counsel when appropriate." An article reports that "California Supreme Court Wants to Know if Lawyers Lied." And in news from New York, "Silverstein's Remarks Keep Him From Most of WTC Trial" and "Lawyers Team Up in Fight for Gay Marriage; Separate suits challenge N.Y. law on same-sex unions."
Posted at 22:19 by Howard Bashman



Now on C-SPAN: Watch Michael Newdow debate the Pledge of Allegiance case, via this link (Real Player required). Update: This program has now concluded but is scheduled to air again at 12:44 a.m. eastern time Friday morning.
Posted at 22:05 by Howard Bashman



Available online from National Public Radio: Today's broadcast of "Talk of the Nation" contained a segment entitled "Martha Stewart's Trial" (Real Player required) consisting of a very lengthy interview with Jeffrey Toobin, who covered the trial for The New Yorker. You can access online both Toobin's current article about the case and the article he wrote about the matter just over one year ago.

And tonight's broadcast of "All Things Considered" included a segment entitled "Campaign Finance, Two Years Later."
Posted at 19:55 by Howard Bashman



"The Battle Over the Pledge": The April 5, 2004 issue of The Nation contains this essay by Elisabeth Sifton, senior vice president of Farrar, Straus & Giroux.
Posted at 19:38 by Howard Bashman



"No decision this week in Roy Moore appeal": The Associated Press reports here from Alabama that "Court officials said Thursday a decision on Roy Moore's appeal of his ouster as chief justice will not come this week, meaning at least a month will have passed since a fill-in Supreme Court held a hearing on his expulsion."
Posted at 19:36 by Howard Bashman



"Scalia refuses to recuse himself from case involving Cheney": Stephen Henderson of Knight Ridder Newspapers offers this report. And on tonight's broadcast of NPR's "All Things Considered," Nina Totenberg had a report entitled "Scalia Defends Cheney Trip, Recusal Decision" (Real Player required).
Posted at 19:30 by Howard Bashman



"A More Perfect Union; How the Founding Fathers would have handled gay marriage": Jonathan Rauch has this essay in the April 2004 issue of The Atlantic. That issue also contains an article by Law Professor Jeffrey Rosen entitled "John Ashcroft's Permanent Campaign." Rosen's article isn't freely available online, but you can access the text of an interview with Rosen that appears under the heading "The Softer Side of Ashcroft."
Posted at 17:33 by Howard Bashman



"Scalia: Little merit in 'living Constitution'; He tells W&M crowd fluid interpretations allow personal beliefs." This article appeared yesterday in The Richmond Times-Dispatch.
Posted at 17:30 by Howard Bashman



"HLS students hear case before high court does; Supreme (moot) Court comes to Law School to argue privacy case": The Harvard Gazette provides this report.
Posted at 16:45 by Howard Bashman



"Unpingco to step down; Judge aims to re-enter private law": The Pacific Daily News reported here yesterday that "U.S. District Court of Guam Judge John Unpingco will step down from the federal position in several months and become a partner in the high-profile law firm of Lujan, Aguigui and Perez." And tomorrow's edition of that newspaper will contain an editorial entitled "Farewell: The community will miss Unpingco being on the federal bench."
Posted at 16:30 by Howard Bashman



"Je Refuse! Justice Scalia's letter to the American people." Slate has just posted online this essay by Dahlia Lithwick.
Posted at 16:08 by Howard Bashman



"Breaking News: Scalia Refuses to Recuse." Tony Mauro has this report (registration required) online at Legal Times.
Posted at 16:07 by Howard Bashman



"JAGs with a purpose": Blogger Phil Carter has this very interesting post about the military lawyers who have been assigned the mission of defending detainees at Guantanamo Bay.
Posted at 15:55 by Howard Bashman



Access the motion to recuse Justice Antonin Scalia that the Sierra Club filed last month: It is available here, via FindLaw. And Justice Scalia's explanation delivered today for refusing to recuse himself can be accessed here.

Today the Sierra Club has issued a "Response to Justice Scalia's Denial of Recusal Motion in Cheney Case" that begins, "Justice Scalia misses the point." When the organization originally filed its recusal request, it issued a press release entitled "Sierra Club Moves for Scalia Recusal in Cheney Case."
Posted at 15:20 by Howard Bashman



"Slate's Jurisprudence: Scalia Won't Recuse Himself." On NPR's "Day to Day" program, Slate's Dahlia Lithwick comments on (Real Player required) today's big news from the U.S. Supreme Court.
Posted at 15:00 by Howard Bashman



Poett didn't know it: That's what the U.S. Court of Appeals for the Federal Circuit ruled today in a decision you can access here.
Posted at 14:58 by Howard Bashman



"Or" does not mean "and": So the U.S. Court of Appeals for the Fourth Circuit has ruled in this bankruptcy-related decision issued today.
Posted at 14:45 by Howard Bashman



Access online the California school district's reply brief filed in the Pledge of Allegiance case pending before the U.S. Supreme Court: The school district, of course, seeks to overturn the Ninth Circuit's decision declaring unconstitutional the use of the words "under God" when the Pledge is recited in school. The reply brief is available online here. I'm still hoping that C-SPAN will persuade the Court to allow same day broadcast of the oral argument audiotape.
Posted at 14:30 by Howard Bashman



"Scalia: No Recusal From Cheney Case." The Los Angeles Times provides this news update. The LA Times came in for especially harsh treatment in Justice Antonin Scalia's memorandum issued this morning. Anticipating this development, back on February 27, 2004 I offered a post titled "Justice Antonin Scalia cancels his subscription to The Los Angeles Times."
Posted at 14:00 by Howard Bashman



Seventh Circuit allows use of separate juries for each defendant in a civil case: Circuit Judge Richard A. Posner issued this opinion today on behalf of a unanimous three-judge panel. According to the opinion, this is the first appellate decision to consider the lawfulness of this practice.
Posted at 13:39 by Howard Bashman



"McGraw defends state's legal system": The Herald-Dispatch of Huntington, West Virginia reports here today that "During a visit to Huntington Wednesday, West Virginia Chief Justice of the Supreme Court of Appeals Warren R. McGraw defended the West Virginia legal system that some have criticized as anti-business and blamed large corporations for giving the state a bad image."
Posted at 12:58 by Howard Bashman



"Minn. Court Hears Microsoft Suit": NPR's "Morning Edition" today included this report (Real Player required).
Posted at 12:47 by Howard Bashman



Judge's ruling results in free beer: The Fort Worth Star-Telegram today offers this report.
Posted at 12:46 by Howard Bashman



"West Palm justice to lead state Supreme Court": This article appears today in The Palm Beach Post. And The Associated Press reports that "Court says Justice Pariente will be chief."
Posted at 12:43 by Howard Bashman



"Should Impeachment Be Considered for Erring Activist Judges?" The Christian Broadcasting Network has today posted online this essay.
Posted at 12:40 by Howard Bashman



"Rockford strip club decision overturned; A Chicago appeals court decides that the exotic-dance ordinance is unconstitutional": This article appears today in The Rockford Register Star. I first noted yesterday's ruling of the U.S. Court of Appeals for the Seventh Circuit in a post you can access here.
Posted at 12:27 by Howard Bashman



"Alum Snags Journalism Award": Today's issue of The Harvard Crimson reports here that "New York Times Supreme Court reporter Linda J. Greenhouse '68 was awarded a plaque and a personalized chair in recognition of 'excellence in journalism' at a ceremony last night at the Kennedy School's John F. Kennedy Jr. Forum."
Posted at 12:23 by Howard Bashman



Justice Antonin Scalia issues memorandum announcing that he will not recuse from case involving Vice President Cheney: You can access Justice Scalia's very interesting 21-page memorandum at this link. Gina Holland of The Associated Press reports that "Scalia Won't Remove Self From Cheney Case." Reuters reports that "Justice Scalia Refuses to Recuse in Cheney Case."
Posted at 10:46 by Howard Bashman



In news from Tennessee: Today's edition of The Tennessean contains articles headlined "Effort to ban gay civil unions in state hits snag; Emotions raised in committee dispute spill over in hallway" and "An arsenal of hate and a tortured mind; Federal judge weighs evidence of mental illness, weapons stashes to determine a defendant's fate."
Posted at 09:58 by Howard Bashman



"Facing Jurors, Microsoft Voices a Rare Mea Culpa": This article appears today in The Los Angeles Times. In local coverage of the trial, The Minneapolis Star Tribune today contains an article headlined "Microsoft lawyer: No harm, no foul." The St. Paul Pioneer Press reports that "Microsoft testimony begins" and "Microsoft presents a storybook defense." And from the wire services, The Associated Press reports that "Microsoft offers an apology for past practices" and "Dispute over damages interrupts statement in Microsoft trial." Reuters reports that "Microsoft Denies Using Monopoly in Trial." Finally, Declan McCullagh of c|net News.Com reports that "E-mails give peek at Microsoft strategies."
Posted at 09:36 by Howard Bashman



"Court rules rival infringes on Abbott patents": This article appeared yesterday in The Chicago Tribune. The decision in question was issued by Seventh Circuit Judge Richard A. Posner, sitting by designation on the U.S. District Court for the Northern District of Illinois.
Posted at 09:25 by Howard Bashman



In Thursday's newspapers: The New York Times reports that "President Requires Broad Powers in Wartime, Brief to Court Says." In other news, "San Francisco Married 4,037 Same-Sex Pairs From 46 States." An article reports that "As He Presses Charges, His Mailbox Overflows." In news from Washington State, "Methodists Put Minister on Trial for Declaring Herself a Lesbian." In celebrity justice-related news, "After 6 Months, Tyco Prosecutors Close Case Against Ex-Officials"; "Prosecution Rests in Williams Trial; Defense Chides Firearms Expert"; and "Buyer of Rowland's Condo Pleads Guilty." In drug-related news, "Drug-Fighters Turn to Rising Tide of Prescription Abuse" and "Morgenthau Backs Debate on Drug Laws." And in business news, "Chances of Microsoft Accord in Europe Dim" and "It's Caveat Emptor When Mining Tax Advice on the Web."

The Washington Post reports that "Business, U.S. Fight Over Sentencing Guidelines." In other news, "Probe Begun Over Halabi Investigator's Documents." An article reports that "Condemned Virginia Man Gives Up on Appeals." In other news, "Calif. Student Is Indicted in Firebombing of SUVs." In business news, "Microsoft Continues Talks in Europe; Settlement Sought In Antitrust Case." And an editorial is entitled "Confronting One's Accusers."

Finally for now, The Christian Science Monitor contains an op-ed by Kim Paton entitled "Weaseling out of jury duty? Shame on you."
Posted at 07:00 by Howard Bashman



"The Real Story Behind the Release of Justice Blackmun's Papers and Tapes: What They Reveal, and Do Not Reveal, About the Man and the Court." Edward Lazarus today has this essay online at FindLaw.
Posted at 06:58 by Howard Bashman



"Duck out, Mr. Justice: If Scalia won't recuse himself from the Cheney energy case, his fellow Supreme Court justices should insist that he back off." This editorial appears today in Newsday. And The DoG Street Journal reports that "Constitutional Interpretation is not for Sissies."
Posted at 06:50 by Howard Bashman



Available online at law.com: Marcia Coyle reports that "High Court Set to Mend a Split on Job Suits; Circuits diverge on 'constructive' firing." In news from New York, "Lawsuit Over Late Abortions Moves Toward Trial" and "Federal Judge Declines to Weigh In on Constitutional Torts." An article reports that "Florida Judge Complains U.S. Prosecutor Is 'Weak-Kneed.'" In news pertaining to the federal government's RICO case against Big Tobacco, "Drowning in Paper: With fall trial date set, case involves 30 firms, millions of documents." And an article is headlined "The New, Bigger Reed Smith."
Posted at 00:25 by Howard Bashman



Wednesday, March 17, 2004
Elsewhere in Wednesday's newspapers: The Los Angeles Times reports that "Evidence Battle Heats Up; Prosecutors in Bryant case say the defense is trying to taint jury pool with its request for 21 items; Issue could delay the accuser's testimony." In other news, "Wheeler's Mother Fires Legal Team; Linda Will says she is putting things on hold in wrongful-death suit against Northwestern." In business news, "'Greed Is Greed,' Tyco Jury Is Told" and "Microsoft's Ballmer Joins Talks With EU Regulators." An article reports that "Athletes Might Testify at Trial; Documents imply some will go on witness stand if case on performance enhancers proceeds that far against BALCO." And in local news, "Jurist's DUI Trial to Be Out of O.C.; Theodore Millard will have his case, which includes serious injury to another, handled by out-of-county officials."

The Washington Times contains an op-ed by Mona Charen entitled "Bogus medical privacy claims."

And Law Professor Jonathan Turley has an op-ed in USA Today entitled "Valued bond between client, lawyer eroding."
Posted at 23:50 by Howard Bashman



The federal government today filed its Brief for Petitioner on the merits in the U.S. Supreme Court case involving alleged dirty bomber Jose Padilla: You can access the brief at this link (and the appendix at this link), via Jenner & Block's Padilla case resource center.
Posted at 23:44 by Howard Bashman



"Martha team finds key point to appeal; Attorney plans to argue the judge unfairly blocked insider trading defense, people familiar say": CNN.com provides this report.
Posted at 23:33 by Howard Bashman



"Defending God: Pledge of Allegiance critic Michael Newdow isn't the only Sacramentan facing the Supreme Court next week." This article will appear in tomorrow's issue of The Sacramento News and Review.
Posted at 23:31 by Howard Bashman



In abortion-related news from New York: Reuters reports here that "A federal judge on Wednesday denied a request by abortion providers to throw out a law banning a type of late-term abortion and ruled a trial is needed to determine whether the measure is unconstitutional." And The AP reports that "Judge Declines to Strike Abortion Law."
Posted at 23:29 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Justice Applauds Bucking Sentencing Law." And Anne Gearan reports that "White House Likens Terror Case to WWII."
Posted at 23:25 by Howard Bashman



"Top Court Asked to Review Calif. Execution Stay": Reuters reports here that "California's attorney general asked the U.S. Supreme Court on Wednesday to review a U.S. appeals court's decision to let convicted murderer Kevin Cooper challenge his death sentence a second time."
Posted at 22:33 by Howard Bashman



"Not-So Supreme: The dumb new proposal to veto the Supreme Court." Slate has recently posted online this jurisprudence essay written by Dahlia Lithwick.
Posted at 18:57 by Howard Bashman



"An ill-advised hunting trip: Supreme Court Justice Scalia should recuse himself in Cheney court case." This editorial appears today in The Orlando Sentinel.
Posted at 18:09 by Howard Bashman



"Justice Antonin Scalia: The case for a 'dead Constitution.'" The William and Mary News provides this report on Justice Scalia's speech there yesterday.
Posted at 18:08 by Howard Bashman



"Allegheny County Bar Association journal may exclude cases hurtful to members": This article appears today in The Pittsburgh Post-Gazette. And in similar news, "Overlawyered" notes here a Rocky Mountain News article headlined "BBB pulls ad after flak from attorney groups."
Posted at 17:58 by Howard Bashman



In news from Guam: Thursday's issue of The Pacific Daily News reports that "Supreme Court to offer electronic filing service." More information is available from the home page of the Supreme Court of Guam.
Posted at 17:50 by Howard Bashman



In news from Tennessee: The Associated Press reports here on a county in Tennessee that does not plan to extend a hospitable welcome to homosexuals who believe in evolution. And in other news, The Tennessean today contains articles headlined "Legislation banning civil unions advances; Senate committee OKs bill despite legal concerns" and "Bill affecting dogs in trucks watered down; Owners would be urged, not required to secure their pets."
Posted at 17:34 by Howard Bashman



Justices Anthony M. Kennedy and Clarence Thomas testified today before the House Committee on Appropriations: Anne Gearan of The Associated Press provides this report. In her article, Gearan writes: "A cordial hearing about the Supreme Court budget grew testy when lawmakers pointed to the vast amount of information they provide about Congress' doings and said the nation's highest court could and should do the same." Reuters, meanwhile, offers photos here, here, and here. And The AP does likewise here, here, here, and here.
Posted at 17:06 by Howard Bashman



Second Circuit allows resident of India to pursue property-damage claim against Union Carbide arising from that company's operation of its plant in Bhopal, India: And the case may yet become a class action. You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 16:27 by Howard Bashman



"Cigarette malfunction" and bomb-making instructions downloaded from the Internet: The facts of this opinion that the U.S. Court of Appeals for the Third Circuit issued today are quite interesting.
Posted at 15:00 by Howard Bashman



U.S. Supreme Court's decision upholding Alaska's sex offender registration law survives remand to the U.S. Court of Appeals for the Ninth Circuit: You can access today's per curiam decision of a unanimous three-judge Ninth Circuit panel at this link. The Ninth Circuit's earlier ruling in the case, which the Supreme Court reversed, can be accessed here.
Posted at 14:45 by Howard Bashman



"O'Connor: Lawyers 'unhappy lot."' This article appears today in The Casper Star-Tribune. (Thanks to Law Professor Eric Muller for the pointer.)
Posted at 14:16 by Howard Bashman



Still pending is Big Tobacco's motion for summary judgment contending that the federal government's RICO complaint infringes the entitlement to "a republican form of government": Today the U.S. District Court for the District of Columbia issued a decision denying Big Tobacco's "Motion for Summary Judgment on the Grounds that the Government's RICO Claims Violate Separation of Powers." Update: The Associated Press offers an article headlined "Judge: Tobacco Lawsuit May Be Pursued." And Reuters reports that "Judge Allows Tobacco Racketeering Suit."
Posted at 14:07 by Howard Bashman



"Top Ten Signs Your Supreme Court Justice Is On The Take": Last night's broadcast of "Late Night with David Letterman" featured this Top Ten list.

Some of my favorites: "9. His written opinions always have several mentions of the thirst-quenching taste of Mountain Dew"; "7. Asks, 'Does either attorney plan on inviting me on any hunting trips?'"; and "3. When you have a meeting with him in chambers, frisks you for a wire."
Posted at 13:55 by Howard Bashman



Today's rulings of note from the U.S. Court of Appeals for the Seventh Circuit: Not-quite-nude dancing won a victory, as a unanimous three-judge panel of the Seventh Circuit today declared invalid under the First Amendment a Rockford, Illinois ordinance regulating "Exotic Dancing Nightclubs."

In a separate ruling, and notwithstanding whatever residual fondness television viewers may hold for "Night Court," a unanimous three-judge panel granted a writ of habeas corpus in favor of a state court convict sentenced to life imprisonment without parole on drug charges because the entire prosecution's case was conducted late at night when the courthouse at which the trial was conducted was closed to the public.
Posted at 13:30 by Howard Bashman



"20 questions for the appellate judge" update: Thanks so very much to everyone who offered suggested questions for April 2004's interviewee, Sixth Circuit Chief Judge Emeritus Boyce F. Martin, Jr. Just a short while ago, I emailed to Judge Martin his "20 questions," and I am quite optimistic that this interview will turn out to be among the most interesting yet.

Looking ahead, I have four wonderful interviewees lined up for May, June, September, and October 2004. What about July and August, 2004, you may be asking yourself? I still need an appellate judge interviewee for each of these months. To volunteer, an interviewee need merely send me an email, a process that can be initiated by clicking here. When I last begged for volunteers, the response was overwhelming.
Posted at 12:00 by Howard Bashman



Appellate news concerning Big Tobacco: The Chicago Tribune reports today that "Philip Morris battles hard to stamp out 'lights' suits; Illinois appeal gains importance as cigarette maker shows results against class actions elsewhere." And The Cleveland Plain Dealer today reports that "Tobacco advertising is central issue in case before Ohio's highest court."
Posted at 11:50 by Howard Bashman



"Official Defends PATRIOT Act; Dinh says PATRIOT Act does not pose real threat to constitutional rights": Today's edition of The Harvard Crimson contains this report, which repeatedly suggests that Viet D. Dinh continues to work as a federal government official, even though he now teaches law full time.
Posted at 09:33 by Howard Bashman



"Judge candidates may speak out on issues, court says": This article appears today in The Minneapolis Star Tribune. And The Associated Press reports that "Ban on fund raising is upheld." You can access my coverage of yesterday's ruling by a divided three-judge panel of the U.S. Court of Appeals for the Eighth Circuit at this link.
Posted at 09:22 by Howard Bashman



"Judge's testimony to Congress assailed": The Minneapolis Star Tribune today contains an article that begins, "Minnesota's chief federal judge, James Rosenbaum, came under attack Tuesday by U.S. Rep. James Sensenbrenner Jr., R-Wis., who accused him of misleading Congress about cases in which drug defendants' sentences were reduced." You can access the prepared text of the Congressman's remarks at this link.
Posted at 09:05 by Howard Bashman



"Walker puts option of firing squad to death": This article appears today in The Salt Lake Tribune.
Posted at 08:58 by Howard Bashman



In Wednesday's newspapers: The New York Times reports that "Justice Dept. Opens Inquiry Into Shell Oil." In other business news, "Talk of Greed and Beyond at Tyco Trial" and "Microsoft Nears End of Settlement Talks." In local news, "Chadless but Clueless, City Council Suffers an Official Tie." Columnist Nicholas D. Kristof has an op-ed entitled "May I See Your ID?" And a letter to the editor appears under the heading "Foes of Gay Marriage."

Finally for now, The Washington Post contains an article headlined "Mother of 9/11 Victim Seeks Son's Memento."
Posted at 07:00 by Howard Bashman



"Ethics and professionalism": The Laramie Boomerang reports here today that "In the first of the Carl M. Williams Speaker Series at the University of Wyoming, United States Supreme Court Justice Sandra Day O'Connor was forthcoming about her concerns with ethics and professionalism in the legal industry."
Posted at 06:55 by Howard Bashman



"Supreme Court a political institution, Scalia says": The Associated Press provides this report.
Posted at 06:50 by Howard Bashman



Now they trot out the celebrities: Day three of the "De Novo" blog's symposium on the value of legal education features, among other things, an essay by Dahlia Lithwick entitled "I Went to Law School for This?" And here's a participant with some unjustifiably kind things to say about the symposium contribution from yours truly.
Posted at 00:30 by Howard Bashman



"Bans on Interracial Unions Offer Perspective on Gay Ones": Adam Liptak has this article in Wednesday's issue of The New York Times. This graphic accompanies the article.

Coincidentally, Tuesday evening's broadcast of NPR's "All Things Considered" contained a segment entitled "History of U.S. Marriage: Miscegenation Laws" (Real Player required).
Posted at 00:20 by Howard Bashman



"O'Connor Urges Integrity Among Lawyers": The Associated Press provides this report.
Posted at 00:09 by Howard Bashman



Tuesday, March 16, 2004
In Tuesday's newspapers: The Los Angeles Times reports that "More Urge Justice Department to Appeal Phone Ruling; Leaders of a Senate committee oppose the circuit court decision to reverse FCC rules on access to local lines." In other news, "Oregon Stands Solo on Same-Sex Licenses; One county continues to issue the marriage documents despite the attorney general's plea; New York files charges against two ministers." An article reports that "Trucker May Face Death Penalty; A New York man has pleaded not guilty in the case of migrants smuggled in an unventilated trailer; Nineteen people died." In celebrity trial-related news, "Bryant Defense Team Seeks Evidence from Prosecution" and "Ex-Tyco Chief's Lavish Lifestyle Is Defended." In business news, "Europe Votes for Microsoft Sanctions" and "IRS Often Fails to Collect Judgments." And letters to the editor appear under the heading "Justice Ginsburg's Connection With NOW."

The New York Times contains an article headlined "Another Oklahoma City Bomb Trial, and Still Questions Remain." In local news, "Judges Dismiss Case Alleging Unfair Redrawing of Districts." In business news, "Judge in Rigas Trial Chastises Prosecutors" and "Tyco Defense Begins Closing Argument." A medical essay is headlined "When Big Brother Invades the Examining Room."

The Washington Post reports that "Internet Cutoff Ordered at Interior; Judge Says Money Owed to Indians Is Still at Risk." In other news, "Charges in Same-Sex Nuptials; N.Y. Clergy Protest, Vow to Wed More." An article reports that "Indigent Defense Panel Is Approved; Caseloads in Va. Could Be Limited." And in business news, "EU Likely to Order Microsoft to Unbundle; Putting Media Player in Operating System Said to Stifle Competition."

The Washington Times reports that "Marshals Service found 'deficient.'" In other news, "Army, captain near deal in espionage case." And Bruce Fein has an op-ed entitled "Contemporary consensus amendment."
Posted at 23:55 by Howard Bashman



Interesting Eighth Circuit death penalty double jeopardy ruling: In a post to this blog on January 14, 2003, I summarized the U.S. Supreme Court's ruling that day in Sattazahn v. Pennsylvania as follows:
Kill me once, shame on you; kill me twice, shame on me: David Allen Sattazahn won an appeal entitling him to a new murder trial after he was sentenced to life imprisonment following his first death penalty trial, at which the jury split 9-3, with nine voting for life imprisonment and three voting for a death sentence. Following the retrial at which he was again convicted of capital murder, he was rewarded by a jury that this time voted unanimously in favor of the death penalty, resulting in his receipt of a death sentence.

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

Today the U.S. Court of Appeals for the Eighth Circuit considered a case in which federal prosecutors sought the death penalty against two co-defendants who were tried together in a single case. After convicting both defendants of murdering a federal witness, the jury deadlocked on whether to impose a death sentence on the defendant whom the prosecution viewed as more culpable. Thereafter, the prosecution revoked its request for a death sentence with respect to the second, less culpable defendant, and the trial court imposed a mandatory sentence of life imprisonment without parole.

In an earlier appeal, the Eighth Circuit vacated both convictions and remanded for retrials. Today the Eighth Circuit considered whether the federal government was prohibited from seeking the death penalty with respect to the second, less culpable defendant at the retrial of the case. In an interesting opinion that you can access here, the Eighth Circuit ruled that the federal prosecutors are able to seek the death penalty at the retrial, notwithstanding the prosecution's decision to abandon the quest for the death penalty against this very same defendant at the first trial.
Posted at 23:41 by Howard Bashman



"You have the right to carry silent." Miranda warnings, when translated into Spanish, took on a whole new meaning, The Rocky Mountain News today reports here. You can access yesterday's ruling of the Supreme Court of Colorado, holding that the translated warnings missed the mark by too much, at this link.
Posted at 23:00 by Howard Bashman



"Incoming chief justice planning to ascend 'without an agenda'": This article appears today in The Clarion-Ledger of Mississippi.
Posted at 22:46 by Howard Bashman



"Judge not, lest ye be an activist judge": Columnist Reg Henry today has this essay in The Pittsburgh Post-Gazette. And columnist Robert Landauer today has an essay entitled "'Judicial activism' is new epithet" in The Oregonian.
Posted at 20:55 by Howard Bashman



"Bush Is Venturing Down Dark Legal Alley With Recess Appointment, Scholars Say": The Newhouse News Service offers this report today.
Posted at 20:50 by Howard Bashman



"The Umpires Strike Back: Incensed by a congressional act that shackles their sentencing discretion, federal judges -- William Rehnquist included -- are pounding the gavel." The American Prospect today posted online this essay by Andrew Cohen.
Posted at 19:56 by Howard Bashman



Beavis could not be reached for comment: The Durango Herald reports today that "Court rejects head-butt petition."
Posted at 19:50 by Howard Bashman



"Justices must avoid conflicts": The Kalamazoo Gazette today contains an editorial that begins, "Obviously, U.S. Supreme Court justices are entitled to enjoy their private lives."
Posted at 19:46 by Howard Bashman



"Lawmaker Defends Sentencing Law Before Judges": James Vicini of Reuters reports here that "House Judiciary Committee Chairman F. James Sensenbrenner defended on Tuesday a law aimed at forcing judges to give tougher sentences in remarks to the federal judiciary's policy-making group that disagrees with him."
Posted at 19:37 by Howard Bashman



"Lawyers: Inmates died in 'agony' from injections." This article appears today in The Greenville News.
Posted at 19:31 by Howard Bashman



"Pickle to take memo report to Justice": Wednesday's issue of The Hill will contain an article that begins, "Senate Sergeant at Arms Bill Pickle said Tuesday that he would give his report on how Republican aides obtained internal Democratic Judiciary Committee memos to the Justice Department for a possible criminal prosecution."
Posted at 19:29 by Howard Bashman



"'Memogate' opens window on judiciary fights": This article will appear in Wednesday's issue of The Christian Science Monitor.
Posted at 19:26 by Howard Bashman



From the Federal Judiciary Newsroom: A press release issued today is entitled "Funding and Electronic Access Top Judicial Conference Agenda." In today's other news, "Judicial Business of the Federal Courts in FY 2003; Substantial Caseloads Continue to Fill Courts." More details regarding the caseloads can be accessed via this link. Finally, you can access online a press release issued last Thursday entitled "As Workload and Resources Head in Opposite Directions, Crisis Looms for Federal Courts." And the written text of the statement of Chief District Judge John G. Heyburn II, chair of the Judicial Conference Budget Committee, to the House Appropriations Subcommittee on Commerce Justice, State the Judiciary and Related Agencies can be accessed here.
Posted at 19:07 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "Judges Say Federal Courts Are Swamped." And in other news, "Gennifer Flowers' Defamation Suit Tossed."
Posted at 19:00 by Howard Bashman



"Not Loving It: 'Full Faith and Credit' is not the only constitutional issue in the gay-marriage debate." Matthew J. Franck has this essay today at National Review Online.
Posted at 15:35 by Howard Bashman



Three years, four months, and fourteen days after oral argument, U.S. Court of Appeals for the Fourth Circuit issues eight-page affirmance: The only question that remains to be asked is whether as of yesterday this was the longest-pending undecided argued case on the docket of a certain Fourth Circuit judge.
Posted at 14:45 by Howard Bashman



"Slate's Jurisprudence: Refusing a C-Section." Today's broadcast of NPR's "Day to Day" included this discussion (Real Player required) with Slate's Dahlia Lithwick.
Posted at 14:40 by Howard Bashman



Why stop at banning same-sex marriage? The Tennessean today reports that "Bill to ban civil unions goes before Senate committee today."
Posted at 13:28 by Howard Bashman



"Federal Appeals Court Revives Brutality Case; Lawsuit To Proceed Against West Hartford": The Hartford Courant reports here today that "A police brutality lawsuit stemming from two of the most dramatic anti-abortion protests in state history 15 years ago has been revived by a federal appeals court and now may proceed against the town of West Hartford." I first mentioned this ruling yesterday in a post you can access here.
Posted at 13:18 by Howard Bashman



"Miss. High Court Rocked by Bribery Scandal": Today's broadcast of NPR's "Morning Edition" contained this report (Real Player required).
Posted at 12:10 by Howard Bashman



On remand from the U.S. Supreme Court, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit again divides over the constitutionality of campaign-related aspects of Minnesota's Code of Judicial Conduct: You can access today's very interesting decision at this link. The Supreme Court's ruling in the case can be accessed here. Finally, the Eighth Circuit's initial ruling in the case can be accessed here.
Posted at 12:00 by Howard Bashman



Blood money: Today Verizon New York Inc. lost its challenge in the U.S. Court of Appeals for the D.C. Circuit to a decision of the National Labor Relations Board concluding that Verizon had violated federal law when it refused to bargain with a union over elimination of the company's long-standing practice of allowing employees to participate in blood drives during working hours with no loss of pay. You can access today's ruling at this link.
Posted at 10:15 by Howard Bashman



"Marshals criticized on judges' security; Justice Dept. report cites outdated database": This article appears today in USA Today.
Posted at 10:08 by Howard Bashman



Ten Commandments news: The Duluth News Tribune reports today that "City will move Commandments; The City Council votes to remove the Ten Commandments monument rather than fight a lawsuit most felt the city would lose." The Mansfield News Journal reports that "AU packed for judge; Embattled former Alabama chief justice shares fight, podium with DeWeese." The Walker County (Ga.) Messenger contains an article headlined "Moral support, but no legal clout." And columnist Ruth Holladay has an essay in The Indianapolis Star entitled "On Commandments monument, he finds a pagan plot."
Posted at 09:55 by Howard Bashman



"Antitrust case against Microsoft begins in Minn. state court": The Associated Press provides this report. Reuters reports that "Microsoft Antitrust Trial Starts in Minn." In local coverage, The Minneapolis Star Tribune contains an article headlined "Plaintiffs: Microsoft undercut its rivals." And The St. Paul Pioneer Press reports that "Lawyer calls Microsoft a bully."
Posted at 09:45 by Howard Bashman



In news from South Dakota: The Argus Leader of Sioux Falls, South Dakota today contains articles headlined "One vote scuttles ban on abortions"; "Politically, not all was lost by bill's supporters"; and "Other states watch S.D. veto, vote closely." And The Aberdeen American News reports that "State abortion ban fails on Senate's final vote."
Posted at 08:15 by Howard Bashman



"A peek at the court's personal side": Columnist Robyn E. Blumner has this essay today in The St. Petersburg Times.
Posted at 08:12 by Howard Bashman



"Ginsburg joins Scalia in compromising court": This editorial appears today in The Missoulian.
Posted at 08:10 by Howard Bashman



"Custody case colors Pledge battle": This article appears in Tuesday's issue of USA Today.
Posted at 00:25 by Howard Bashman



Monday, March 15, 2004
Elsewhere in Monday's newspapers: The Los Angeles Times reports that "Outdoor Church Going to Court in Land Fight; Huntington Beach cites zoning rules as Praise Christian seeks approval for indoor quarters." An article reports that "Man Died of Neglect, Inmates Say; They told a state senator they alerted staff that he was starving in his cell, but no action was taken." In other news, "Restraining Orders Against L.A. Judge, Accuser Are Lifted; Appeals court orders a new hearing in a dispute between a jurist and his daughter's boyfriend." An editorial is entitled "An Attack on 'Do Not Call.'" Columnist Al Martinez has an essay entitled "Beware the mighty moral roar shaking the nation." Law Professor Jamin Raskin has an op-ed entitled "Suffrage Suffers in the Land of Rights." And letters to the editor appear under the headings "Justice for Women" and "Gay Republicans Should Feel Some Dissonance."

The Boston Globe reports that "Civil disobedience adds to battle over same-sex marriage." An article reports that "Hunt for gay Maine legislators backfires." And in other news, "Some scientists trade test tubes for patent law."

The Washington Times reports that "Groups hail halt to gay 'marriages.'" In related news, "Black caucus resists comparison of gay 'marriage' to civil rights." And an op-ed by Nat Hentoff is entitled "Gathering resistance."
Posted at 22:55 by Howard Bashman



Available online from National Public Radio: Tonight's broadcast of "All Things Considered" contained segments entitled "Brown v. Board, 50 Years Later" and "History of U.S. Marriage: Polygamy Conflict." And today's broadcast of "Day to Day" contained a segment entitled "Commentary: Legality of TV Ads by Third-Party Groups" featuring Law Professor Rick Hasen, whose "Election Law" blog you can access here.
Posted at 22:11 by Howard Bashman



"LexisNexis selling its legal database to prisons": The Associated Press offers this report.
Posted at 22:00 by Howard Bashman



"Blackmun papers highlight importance of a single justice": Tony Mauro will have this op-ed in Tuesday's issue of USA Today.
Posted at 21:08 by Howard Bashman



"Abortion Ban Law Voted Down by South Dakota Senate": Reuters provides this report. And The Associated Press reports that "Abortion bill dies in Legislature."
Posted at 19:05 by Howard Bashman



Second Circuit decides case of Carter G. Phillips vs. Walter E. Dellinger: A federal district judge sitting by designation has the pleasure of authoring the opinion.
Posted at 17:11 by Howard Bashman



"In light of the deep and abiding schism that has divided the federal judiciary for a decade and a half since the very enactment of this law, as well as the wide-ranging importance of this issue, the Supreme Court should grant certiorari." Although that may sound like the concluding words of a petition for writ of certiorari filed in the U.S. Supreme Court, in fact these are the concluding words of an eighty-two page dissent that Eleventh Circuit Judge Gerald Bard Tjoflat filed today from the denial of rehearing en banc. What subject has gotten Judge Tjoflat so exercised? Why, it's whether the federal supplemental jurisdiction statute has overruled an earlier U.S. Supreme Court decision requiring that each member of a plaintiffs' class in a class action must possess a claim worth more than the requisite amount in controversy (now $75,000) in order for diversity of citizenship jurisdiction to exist.
Posted at 16:54 by Howard Bashman



"Tough Choices: Chief Justice Rehnquist explains Bush v. Gore." Slate has just posted online this jurisprudence essay by Dahlia Lithwick.
Posted at 16:45 by Howard Bashman



"Army Wrong to Ask for Islam Meeting Info": The Associated Press reports here that "Army counterintelligence agents improperly tried to gather information on civilian participants at a University of Texas conference on Islam, the Army acknowledged on Monday."
Posted at 16:40 by Howard Bashman



"Secrecy in Tax Court proceeding challenged; Two cert. petitions reach the justices" Marcia Coyle has this article in today's issue of The National Law Journal.
Posted at 15:47 by Howard Bashman



"Judge Shuts Down Interior Dept's Internet": The Associated Press provides this report. You can access online both today's opinion of the U.S. District Court for the District of Columbia and that court's preliminary injunction issued today.
Posted at 15:44 by Howard Bashman



U.S. Court of Appeals for the Second Circuit partially reinstates excessive force suit that abortion protestors brought against Connecticut town: You can access today's ruling at this link. At the close of the opinion, the Second Circuit excoriates plaintiffs' counsel for his poor briefing of the case and threatens to revoke his ability to practice before that court.
Posted at 15:28 by Howard Bashman



Seventh Circuit struggles in the aftermath of McConnell v. Federal Election Comm'n: What once might have been a relatively straightforward anonymous campaign speech case isn't so easy to decide anymore, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit concluded today in a decision you can access here. Circuit Judge Richard A. Posner issued the lead opinion, in which Circuit Judge Frank H. Easterbrook concurred dubitante. Perhaps Law Professor Rick Hasen will have more to say about this ruling sometime soon over at his "Election Law" blog.
Posted at 15:00 by Howard Bashman



"Americans' Real Addiction Is To Lawsuits": The Web site of The San Francisco Chronicle today features this essay by Jennifer Nelson. And while I'm on the subject, Reason last week posted online an essay by Jacob Sullum entitled "Fast Food Damnation: Why worry about stupid lawsuits?"
Posted at 14:15 by Howard Bashman



"Ashcroft Terrorizes New York Doctors; Attorney General Demands Patients' Private Abortion Records": This article appears in the current issue of The Village Voice.
Posted at 14:12 by Howard Bashman



"Will Moore run for presidency?" This editorial appears today in The Montgomery Advertiser.
Posted at 13:54 by Howard Bashman



"Woman Pleads Innocent in C-Section Case": The Associated Press provides this report from Utah.
Posted at 13:25 by Howard Bashman



Access online the federal government's reply brief filed in the U.S. Supreme Court in the Pledge of Allegiance case: You can access the federal government's reply brief at this link (via "SCOTUSblog").
Posted at 13:20 by Howard Bashman



"Report: Federal Judges' Protection Weak." The Associated Press provides this coverage of a report entitled "Review of the United States Marshals Service Judicial Security Process" that the U.S. Department of Justice, Office of the Inspector General, Evaluation and Inspections Division issued today.
Posted at 12:10 by Howard Bashman



In re Limousine Antitrust Litigation: A divided three-judge panel of the U.S. Court of Appeals for the Eighth Circuit today issued a decision that will be of interest to those who follow antitrust law. The particular disagreement between the majority, which has remanded the case for a new trial, and the dissent, which would have affirmed a nearly $6 million award in favor of the plaintiffs, is whether the conduct in question should be condemned as per se unlawful or judged under the so-called "rule of reason."
Posted at 12:01 by Howard Bashman



"Hatch isn't changing ways on Constitution": This article appears today in The Salt Lake Tribune.
Posted at 10:35 by Howard Bashman



Just because they call themselves "Public Enemy" doesn't necessarily make it so: The Miami Herald reports today that "Police tracking of rappers raises legal questions; Legal scholars debate whether police surveillance of rap stars visiting Miami and Miami Beach violates the U.S. Constitution."
Posted at 10:33 by Howard Bashman



"If it was ever blind, it isn't now": The Wilmington (N.C.) Morning Star today contains an editorial that begins, "Antonin Scalia shouldn't do it, and neither should Ruth Bader Ginsburg." In unrelated news, Justice Ruth Bader Ginsburg celebrates her 71st birthday today.
Posted at 10:26 by Howard Bashman



"Texas suits could drag HMOs into state court": This article appears today in The Fort Worth Star-Telegram.
Posted at 10:11 by Howard Bashman



"White House Counsel Defends Guantanamo Detentions": Today's broadcast of NPR's "Morning Edition" contained this segment (Real Player required) consisting of an interview with White House Counsel Alberto R. Gonzales.
Posted at 09:31 by Howard Bashman



"Corporate America Sending More Legal Work to Bombay": This article appeared yesterday in The New York Times.
Posted at 09:05 by Howard Bashman



"Bush Has Wrong Remedy To Court-Imposed Gay Marriage": Stuart Taylor Jr. has this essay in today's issue of National Journal.
Posted at 09:00 by Howard Bashman



"Texas grimly efficient in executions; 321 convicts put to death since '76": This article appears today in The Chicago Tribune.
Posted at 08:05 by Howard Bashman



In Monday's newspapers: The Washington Post reports that "Death Penalty Divide Frustrated Blackmun; Papers on Lockett Case Show How He Came to See Split Between Fairness, Consistency." An article reports that "For Snowmobiles, An Uncertain Fate; Future in Parks May Hinge on Election." In other news, "In Las Vegas, Looting Ring Unravels; Native American Artifacts Plundered; Five Convicted After Two-Year Probe." And an article is headlined "Friend of the Brides: After the Weddings, San Francisco's Mayor Is Reveling in the Reception."

The New York Times reports that "Illinois Governor in the Middle of New Death Penalty Debate." Adam Liptak has a very interesting article headlined "Not From a Grisham Novel, but One for the Casebook." In other news, "Privacy Fears Erode Support for a Network to Fight Crime." In business news, "U.S. Threatens Action Against Online Gambling"; "Regulators Meet on Proposal to Brand Microsoft a Monopolist"; and "Duane Reade Loses Libel Suit Against a Billboard Opponent." And an editorial is entitled "Beyond the Duck Blind."

The Christian Science Monitor reports that "Gay marriage debate includes questions of religious liberty; As Massachusetts weighs amending its constitution to allow civil unions, some say churches may face pressure."

And at OpinionJournal, Donald Sensing has an essay entitled "Save Marriage? It's Too Late. The Pill made same-sex nuptials inevitable."
Posted at 06:55 by Howard Bashman



"A Bad Thing: Why did Martha Stewart lose?" Jeffrey Toobin has this lengthy article in the March 22, 2004 issue of The New Yorker. And the March 22, 2004 issue of Newsweek contains an article headlined "Shelter From the Storm? Martha isn't going down without a fight. She's clinging to her company, and working the angles to stay out of the slammer."
Posted at 06:44 by Howard Bashman



Welcome to the new blawg "De Novo," operated by several of your favorite law student bloggers: The blog kicks off with a symposium on the value of legal education, featuring submissions from several guest authors whose names you may recognize. I'm also looking forward to contributing to a future symposium to be hosted there on the topic of whether "de novo" and "plenary" mean precisely the same thing.
Posted at 00:21 by Howard Bashman



Sunday, March 14, 2004
Elsewhere in Sunday's newspapers: The Boston Globe, in same-sex marriage-related news, reports that "Marriage measure a shaky solution" and "Conn. eyes Mass. fight on gay marriage." And columnist Eileen McNamara has an essay entitled "A hurtful calculation."

The Los Angeles Times reports that "Leading Foe of Gay Marriage Shows Mettle; Conservative activists say the first-term House member was the perfect choice to push a ban." In local news, "Garden Owner Says He's Not a Bad Guy; A developer who seeks to evict hundreds of farmers from a large plot in South-Central L.A. defends his efforts to use his own land" and "Camp Enforcer Not a Torturer, Wife Says; O.C. woman stands behind husband who denies brutality at a Vietnam facility." An interview with Law Professor David D. Cole appears under the headline "Anti-Terrorism But Pro-Human Rights: A Law Professor Takes Aim at the Patriot Act." Law Professor Douglas W. Kmiec has an op-ed entitled "Family Matters: Marriage is based on procreation, a fact no claim of gay 'equality' can avoid." Law Professor Vikram Amar has an op-ed entitled "Better to Avoid Mistakes Than Make Amends; Trying to alter the nation's charter can trip up a president, as Lincoln found. A hands-off approach may be best." E.J. Graff has an op-ed entitled "An Outsider Steps In and Changes the Script; We've seen it before: Social movements have an untidy logic that defies control." And Karen Stabiner has an op-ed entitled "Can Separate Ever Be Equal? For Girls, Answer Isn't Simple; Evidence suggests single-sex classes might offer benefits, but we must be cautious."

The Washington Times contains an op-ed by David Marion entitled "Judicial statesmanship and the culture war."
Posted at 23:56 by Howard Bashman



"Intolerable Cruelty": Longtime readers of "How Appealing" know that I'm a big fan of the work of the Coen Brothers, dating back to their excellent first film "Blood Simple." In July 2002, I raved here about "The Man Who Wasn't There," explaining that Tony Shalhoub's portrayal of criminal defense attorney Freddy Riedenschneider "is one of the most interesting cinematic depictions of an attorney to emerge in quite some time."

"Intolerable Cruelty," which I finished watching on DVD earlier tonight, is not the Coen Brothers' best work, but it is still worthwhile viewing, as New York Times film critic Elvis Mitchell explains here. Whatever else one can say about this movie, it is clear that the Coen Brothers sure do enjoy making a good lawyer parody.
Posted at 23:00 by Howard Bashman



Take a hike: The C&O Canal Association reports here that:
The C&O Canal Association is planning a through-hike of the entire 184.5 miles of the C&O Canal National Historical Park this spring. "The Hike that Created a Park" will commemorate the 50th anniversary of Supreme Court Justice William O. Douglas' 1954 trek to save the canal with its scenic vistas and natural resources from being paved over to become a road.
Today's issue of The Hagerstown Herald-Mail provides complete coverage, offering articles headlined "Anniversary hike begins April 18"; "A hike for all time"; "Many accounts of hike didn't agree"; and "Who was William Douglas?" In addition, the National Parks Service offers additional information under the headings "Justice William O. Douglas and the C&O Canal" and "50th Anniversary Douglas Hike."
Posted at 22:05 by Howard Bashman



It's time for another recess of the U.S. Senate: The U.S. Senate will be in recess all this week. Stay tuned for complete coverage of any and all federal judicial recess appointments that happen to occur in the hours and days ahead.
Posted at 22:00 by Howard Bashman



Listen online to Chief Justice William H. Rehnquist's interview last week on "The Charlie Rose Show": Bloomberg Media makes available this audio feed (Real Player required) and this listing of the topics discussed during the interview.
Posted at 18:54 by Howard Bashman



In abortion-related news from South Dakota: The Associated Press reports that "Changes could threaten anti-abortion bill." And The Rapid City Journal today reports that "Vote not split on party lines; In the abortion battle, some 'no' votes on HB1191 came from strong pro-lifers" and yesterday reported that "Three senators unsure of vote; Two 'yes' votes, one 'no' on abortion ban are considering veto."
Posted at 18:42 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Gay Marriage Battle to Test Constitutions"; "Attorney General Discharged From Hospital"; and "Nichols' Jurors Know Little About Bombing."
Posted at 16:11 by Howard Bashman



From this morning's broadcast of NPR's "Weekend Edition - Sunday": Today's broadcast contained segments entitled "Rights Experts Gauge Gay Marriage"; "Gambling on the Brackets"; and "MIT Sends Pitcher to Major Leagues" (Real Player required).
Posted at 12:39 by Howard Bashman



"A GOP Flip-Flop on Political Ads": Law Professor Richard L. Hasen, whose "Election Law" blog you can access here, has this op-ed today in The Los Angeles Times.
Posted at 12:35 by Howard Bashman



In Sunday's newspapers: The New York Times reports that "In New Bombing Trial, Some See Search for Truth." Adam Liptak reports that "For Holocaust Survivors, It's Law Versus Morality." In same-sex marriage-related news, "Uniforms Mix With Wedding Finery at Same-Sex Nuptials" and "Practically Married, With Children." An article is headlined "A Trooper Unwelcome at the Courthouse." In news from Kansas, "A Cold Case of Cold Blood, Revisited." In news from New Jersey, "A Town Where the Neighbors Are in Everybody's Business." A "Following Up" report is headlined "Friend of Court, Enemy of Death." Frank Rich has an essay entitled "Trump Is Firing as Fast as He Can." And an editorial is entitled "Florida as the Next Florida."

The Washington Post contains an article headlined "Martha Stewart's Next Big House? At This All-Inclusive Retreat, Not Just Anyone Can Get In. Or Out." Stephen H. Galebach has an op-ed entitled "The Law Can't Stop at the Church Door." Ted Gup has an op-ed entitled "Tolerance Has Never Come Naturally." Novelist Brad Meltzer has an essay entitled "When it comes to writing thrillers, terror is all in the details." And an editorial is entitled "Lawful But Still Unfair."

Finally for now, OpinionJournal offers an editorial entitled "Secular Absolutism: The irreligious left tries to impose its religious views on everyone else."
Posted at 12:10 by Howard Bashman



"Overworked, Understaffed, Undaunted; Public Defender's Office Makes Its Case": This very interesting article about the Federal Public Defender's Office in Alexandria, Virginia, an office that is handling many high-profile cases, appears today in The Washington Post.
Posted at 09:40 by Howard Bashman



The San Francisco Chronicle is reporting: Today's issue of that newspaper contains articles headlined "Religious groups on common ground; Many faiths oppose same-sex marriages" and "Escalating fight rivets, divides nation; Both sides claim the advantage as watershed issue engulfs politics and personalities." In yesterday's newspaper, Bob Egelko reported that "Gay pairs sue for the right to marry; 6 couples denied licenses in S.F. seek to overturn California law." And in other news from yesterday, "Sexual predator lives near a school; Oakland neighbors protest his moving in across the street."
Posted at 09:33 by Howard Bashman



Book review published today in The Fort Worth Star-Telegram gives Chief Justice William H. Rehnquist's new book a "C-": You can access the review at this link. And an excerpt from the book is available here.
Posted at 09:10 by Howard Bashman



"Courts join those giving lethal injection a new look": Today's issue of The Newark Star-Ledger contains this report.
Posted at 08:55 by Howard Bashman



"High court history favors gay marriage; Oregon justices in recent times have viewed the constitution as expanding on federal rights, a pattern some expect to continue": This article appears today in The Oregonian.
Posted at 08:53 by Howard Bashman



"Bush's 'recess appointments' an unsettled issue": The Mobile Register today contains this report. That newspaper today also contains an article headlined "King: From 'Mayberry' to state's top cop." And The Huntsville Times today reports that "New AG to bring personal touch; Troy King says he'll reconnect people to state government."
Posted at 08:50 by Howard Bashman



"Faith in himself: Sacramento father is preparing to represent himself in one of the most controversial cases of the year." This article appears today in The Sacramento Bee. And Howard Mintz of The San Jose Mercury News today has an article headlined "Showdown over Pledge of Allegiance; In the end, polarizing case may not settle Church-State dispute."
Posted at 08:45 by Howard Bashman



Saturday, March 13, 2004
Elsewhere in Saturday's newspapers: The Boston Globe, in same-sex marriage-related news, reports that "Accord said to lack firm majority; In gay-marriage fight, lawmakers' votes fluid"; "Stay by SJC called unlikely"; "Galvin warns groups on lobby law"; and "San Francisco sues over gay vows; Calif. Supreme Court is asked to settle issue of constitutionality." In other news, "Cost of appeal deters DAs from arguing some cases." And Naomi Schaefer has an op-ed entitled "Young evangelicals and gay issues."

The Los Angeles Times reports that "6 Couples, Gay Rights Groups Sue California; Lawsuit's filing comes in wake of state high court's order stopping same-sex marriages." In related news, "Massachusetts Governor May Challenge Gay Marriage; Mitt Romney considers legal options; He also may try to bar clerks from following the state court's order to issue same-sex licenses." An article reports that "Jackson Case Going to Grand Jury; Prosecutors are said to be forgoing a public preliminary hearing for the pop star, a strategy that legal experts say carries heavy risks." And an editorial is entitled "Impediment to the Courts."

The Washington Times reports that "Gay 'weddings' go on in Oregon." Thomas Sowell has an op-ed entitled "'Marriage' confusion." And Michelle Malkin has an op-ed entitled "Wages of vigilance."
Posted at 23:50 by Howard Bashman



"Dedicated team keeps teen's case alive; PR experts, volunteers fight sentence for sex offense": This article will appear in Sunday's issue of The Atlanta Journal-Constitution.
Posted at 22:21 by Howard Bashman



The March 22, 2004 issue of U.S. News & World Report commemorates the upcoming 50th anniversary of the U.S. Supreme Court's ruling in Brown v. Board of Education: The edition of the magazine that will appear on newsstands on Monday will contain articles headlined "Making History: 'Separate but equal' was the law of the land, until one decision brought it crashing down"; "Unequal Education: Now the focus shifts from integration to achievement for all"; "The Ruling, Between The Lines"; "Chain Reaction: Resegregation, reverse discrimination, busing, and white flight: What happened after Brown?"; "Closing the gap: While the nation still struggles to fulfill the promise of Brown, these schools are proving that high achievement can also be colorblind"; "The power of a moment"; and "A New Law is Put To Test."

In unrelated news, the magazine will also contain an article headlined "A Real Case Of Snakebite: How a trophy terrorism prosecution morphed into a big mud fight."
Posted at 19:40 by Howard Bashman



"New Challenge for Courts: How to Define Retardation." Adam Liptak will have this article in Sunday's issue of The New York Times.
Posted at 19:30 by Howard Bashman



"World exclusive: Inside Guantanamo." Sunday's edition of The Observer (UK) will contain articles headlined "Revealed: the full story of the Guantanamo Britons; The Observer's David Rose hears the Tipton Three give a harrowing account of their captivity in Cuba" and "How we survived jail hell: For two years the Tipton Three have been silent prisoners in Guantanamo Bay; Now, in this remarkable interview with David Rose, they describe for the first time the extraordinary story of their journey from the West Midlands to Camp Delta."
Posted at 19:22 by Howard Bashman



In news from Alabama: The Associated Press reports here today that "A judge said Friday she won't order a new trial over the $11.9 billion verdict the state won against Exxon Mobil and she scolded the oil company for not providing a document she considered vital to the case." And The Montgomery Advertiser reports that "Officer loses suit against newspaper."
Posted at 17:14 by Howard Bashman



In Saturday's newspapers: The New York Times reports that "San Francisco Sees Tide Shift in the Battle Over Marriage." An article reports that "Like Others, Rumsfeld Has 9/11 Memento." In other news, "Book Says U.S. Aides Lied in Nuclear-Arms Plant Case." An article reports that "Brown U. to Examine Debt to Slave Trade." An article is headlined "Putting a Price on Holocaust Survivors' Hopes." In other news, "Making the Case for a Religious Exemption." And an editorial is entitled "Creating the Next Crime Wave."

The Washington Post reports that "Trying Snipers Cost Va. $3 Million; Price Tag a Factor In Other Prosecutions." In related news, "Malvo Is Moved From Jail to Va. Prison; Sniper Will Undergo Evaluation Before Likely Placement in High-Security Facility" A front page article reports that "Easier Internet Wiretaps Sought; Justice Dept., FBI Want Consumers To Pay the Cost." In other news, "Stillbirth Results in Charge Of Murder for the Mother; Woman Reportedly Refused Caesarean Section." An article is headlined "State of the Union: In Boston, Opponents in the Same-Sex Marriage Debate Are Never Joined." In local news, "Prosecutor in Va. Murder Case Once Represented Suspect; Legal Experts Cite Conflict of Interest." And an editorial is entitled "Defining Spying Down."
Posted at 16:30 by Howard Bashman



The Houston Chronicle is reporting: Today's newspaper contains articles headlined "Governor commutes sentence in case of mentally retarded Houston killer"; "High court's order spurs reprieve for Harris men who killed at 17"; "Spring man faces indictment over orchid; Charges may bring 35 years in prison, $2 million in fines"; "Lawyer wants judge off malpractice case; Failed re-election bid emphasized"; and "Durst lawyers want indictment quashed; Prosecutors missed deadline, attorneys say."
Posted at 14:58 by Howard Bashman



"Notable visitor: Roy Moore to speak at local event." The Paragould (Ark.) Daily Press today contains this report.
Posted at 14:54 by Howard Bashman



"Death penalty foes challenge injection; They say method may cause inmates agony": This article appears today in The Charlotte Observer.
Posted at 14:52 by Howard Bashman



"Judicial candidates remain split; Expressing personal opinions still tough": The Associated Press provides this report from Montana.
Posted at 14:45 by Howard Bashman



"Senate rejects Hong": The Honolulu Advertiser reports here today that "The Senate yesterday narrowly turned down Gov. Linda Lingle's nomination of state chief labor negotiator Ted Hong to the Big Island Circuit Court, the first rejection of a judicial nominee in more than a decade." And The Honolulu Star-Bulletin reports that "Hong rejected as Hilo judge; By a 13-12 vote, the Senate turns down Lingle’s nominee largely along party lines."
Posted at 14:00 by Howard Bashman



In abortion-related news from Michigan: The Ann Arbor News reports today that "U-M gains deal on privacy; Judge orders university to release abortion records, with provisions." The Detroit Free Press reports that "Abortion records must be released; Order to U-M allows removing personal info." And The Detroit News reports that "Ruling sets deadline for U-M to turn over abortion records."
Posted at 11:40 by Howard Bashman



"Court's road show comes to Racine": Yesterday's edition of The Journal Times contained an article that begins, "The Wisconsin Supreme Court, when it comes to Racine to hear cases for two days in April, could be one of the toughest tickets in town."
Posted at 11:30 by Howard Bashman



"Ginsburg Stands by Involvement With Group; The Supreme Court justice says she and her colleagues should avoid recusing themselves from cases because they can't be replaced": David G. Savage and Richard A. Serrano today have this report in The Los Angeles Times. In other coverage of Justice Ruth Bader Ginsburg's visit yesterday to the University of Connecticut School of Law, The Hartford Courant today contains an article headlined "Ginsburg On Supreme Lunches." And The Associated Press reports that "Ginsburg, in law school discussion, explains reluctance for recusal."
Posted at 09:10 by Howard Bashman



"$100,000 reward offered in Luna case; Suicide one of 3 theories in death of prosecutor, according to investigators": The Baltimore Sun today contains this report. In other coverage, The New York Times reports that "3 Theories Cited in Death of Federal Prosecutor." And The Washington Post reports that "$100,000 Reward in Md. Prosecutor's Death."
Posted at 09:00 by Howard Bashman



"'Under God' under siege; High court will rule on Pledge." This article appears today in The Indianapolis Star. Yesterday's issue of The Wall Street Journal contained an interesting article (not freely available online) about the case, in which someone is quoted as suggesting that the words "under God" be replaced with "under Canada and above Mexico."
Posted at 08:50 by Howard Bashman



Friday, March 12, 2004
In Friday's newspapers: The New York Times, in same-sex marriage-related news, reports that "Court Orders San Francisco Officials to Halt Gay Marriages"; "The Gay-Marriage Debate Resumes in Massachusetts"; "Bush Assures Evangelicals of His Commitment to Amendment on Marriage"; and "Spitzer and New Paltz Mayor Meet About Gay Marriages." In local news, "Rowland's Lawyers Struggle To Get Their Legal Bearings" and "Police to Use Containment Pens to Handle Protest on March 20." And an editorial is entitled "Political Hot-Dogging in the House."

The Washington Post, in same-sex marriage-related news, reports that "California High Court Halts Gay Marriages; Hearings Ordered; Licenses Will Stand" and "Massachusetts Moves to Ban Gay Marriage but Allow Unions." And in other news, "In Alaska, Rancher Is Offered Park Access."

The Boston Globe reports that "Gay-marriage ban backed, but uncertainty remains; Compromise proposal needs one more vote." In related news, "Romney mulls appeal to SJC"; "Vote switches key to the day"; "The intricacies of convention mystify many"; "Legislators' strategy was a leap of faith"; "Convention may be overture to long debate"; and "TV outlets allot governor air time; Local stations cite issue's significance." In other news, Lyle Denniston reports that "Accord near to seek full snooping probe; Bipartisan letter asks for prosecutor." An article is headlined "One angry man; Fiery lawyer works to set innocent free." An editorial is entitled "Debating equality." And columnist Scot Lehigh has an op-ed entitled "Signs of war at the State House."

The Los Angeles Times, in same-sex marriage-related news, reports that "High Court Halts Gay Marriages; California justices plan to rule on the legality of San Francisco's action in the next few months; The city can pursue its case in lower courts"; "Divided over gay marriage; Opponents of same-sex unions aren't necessarily religious or politically conservative, and many of them fear how the debate is being shaped"; "Court Order Leaves Couples at the Altar; Mayor tells partners arriving after the weddings are halted that he will press on with court fight"; and "Massachusetts Nears Same-Sex Marriage Ban." In business news, "Review of Phone Ruling Sought; A House committee's leaders want the high court to hear the case on access to local lines" and "Consumers Can Sue Insurers Over Rates, Appeals Court Says; The decision in a case filed against a Mercury General unit upholds a key part of the auto reform Proposition 103." An article reports that "Victims in Tainted Sting Win Settlement; Amarillo, Texas, will pay $5 million to the 45 people wrongly jailed in a raid in nearby Tulia." In other news, "Bryant's Accuser Required to Testify; Colorado Supreme Court clears the way for the defense to question the alleged victim about her sexual history." An article reports that "Luster Escape Is Called Coerced; A lawsuit contends that his former lawyer and others deceived the rapist to get his property after urging him to flee the country." And R. Foster Winans has an op-ed entitled "A Felon's Recipe for Martha Stewart's Prison Living."

The Washington Times reports that "Louisiana will seek execution for Malvo." In other news, "Court calls off same-sex 'weddings.'" An article reports that "Groups support bid for asylum." And Adrienne Washington has an essay entitled "He can die only once, so why retry sniper?"

USA Today reports that "Calif. court stops gay marriages; Couples are turned away at San Francisco City Hall." And in other news, "Amendment passes 1st tests in Mass."
Posted at 23:33 by Howard Bashman



"Isle judge was Asian pioneer in the law field nationwide": This obituary for Senior Ninth Circuit Judge Herbert Y.C. Choy appears today in The Honolulu Star-Bulletin.
Posted at 23:20 by Howard Bashman



Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained segments entitled "Atlanta Female Circumcision Case Stirs Concern"; "Guantanamo Detainee Claims Abuse by U.S. Soldiers"; and "Woman Charged with Murder for Refusing C-Section."

Today's broadcast of "Day to Day" included segments entitled "Calif. High Court Orders Halt to S.F. Gay Marriages"; "Did Gay Marriages Provoke National Backlash?"; and "Rabid Reader: 'Fat Land' and U.S. Supersizing."

And "Morning Edition" today contained segments entitled "San Francisco Gay Marriages Halted"; "Mass. Moves Toward Gay Marriage Compromise"; and "Are We Overusing Adjectives?"
Posted at 23:05 by Howard Bashman



Just a formality: After you accept a recess appointment to join the federal judiciary, the President must renominate you for the post. See, for example, the third entry on today's list of Presidential nominations.
Posted at 23:01 by Howard Bashman



Available online from law.com: A very interesting article about the recess appointment controversy is headlined "Ted Kennedy as Appeals Strategist." And Shannon P. Duffy reports that "Jury Selection Starts in Libel Suit Against New York Times."
Posted at 22:58 by Howard Bashman



Developing a secondary market in U.S. Supreme Court Justice bobblehead dolls: "Milbarge" of the "Begging The Question" blog wants to acquire them and is apparently willing to pay the price. As someone with experience in this area, let me observe that you can't simply mention desiring to own a U.S. Supreme Court bobblehead doll and expect them to start crawling out of the woodwork. Nope, it takes extended effort to get them to materialize, as my earlier posts here, here, here, here, here, here, here, here, here, here, here, here, and here demonstrate. Thanks to that hard work and the thoughtfulness and generosity of this blog's readers, I am the proud beneficiary of two Chief Justice William H. Rehnquist bobblehead dolls. And thanks to my subscription to The Green Bag, I am the proud owner of one Justice John Paul Stevens bobblehead doll. I still don't own a Justice Alan C. Page bobblehead doll, however.

As an added bonus, click on this link to hear NPR's Nina Totenberg having fun with her Chief Justice Rehnquist bobblehead doll (Real Player required).
Posted at 22:20 by Howard Bashman



"FBI reward in prosecutor's death": CNN.com offers this report.
Posted at 21:04 by Howard Bashman



In this Sunday's issue of The New York Times Magazine: Ronald L. Motley, whose former law firm I once had the pleasure of representing on appeal, is the subject of this week's cover story, "Intruders in the House of Saud, Part II: A Nation Unto Himself." Also, an article is headlined "The Good Jailer."
Posted at 19:22 by Howard Bashman



"Welcome to Paradox: Law and Life in the U.S. Virgin Islands." I'm very pleased to report that someone who, unlike me, has found a working Internet connection from the U.S. Virgin Islands has decided to put the connection to good use by blogging about the law from there. You can access the brand new blawg "Welcome to Paradox" at this link.

In the blog's inaugural post, its author writes:
The purpose of this blog is twofold. First and foremost, it is intended to serve as a clearinghouse of information related to law and the practice of law in the U.S. Virgin Islands in the tradition of Howard Bashman's, "How Appealing." Second, but of no less importance, it is intended to serve as a forum for commentary on life in the Virgin Islands from the perspective of non-native Continentals (as we transplanted statesiders are called).
I'm quite a big fan of the U.S. Virgin Islands myself, as readers may recall -- that is, when I'm able to get there without excessive, pointless hassle.
Posted at 19:02 by Howard Bashman



"State high court curbs arrests during protests; The Oregon Supreme Court rules that police may not order peaceful assemblies to disperse and arrest those who disobey": This article appears today in The Oregonian. Yesterday's ruling of the Supreme Court of Oregon can be accessed here.
Posted at 17:40 by Howard Bashman



The San Francisco Chronicle is reporting: Bob Egelko reports that "Same-sex couples jilted by court order sue to overturn ruling." And in other same-sex marriage-related news, "S.F. unleashed a 'gay-marriage tsunami'"; "Decision seen as 1st step in long battle; Feinstein and Boxer had expected state's courts to act"; and "Tearful, defiant crowd marches on court; Despite justices' ruling to halt weddings, protesters say they've just begun to fight."
Posted at 17:16 by Howard Bashman



"Nature of Luna's death continues to elude authorities; FBI 'actively pursuing' whether assistant U.S. attorney took his own life or was murdered; $100,000 reward for information offered": The Baltimore Sun this afternoon provides this news update.
Posted at 17:02 by Howard Bashman



"Domestic Silence: The Supreme Court kills evidence-based prosecution." David Feige has this jurisprudence essay recently posted online at Slate.
Posted at 16:47 by Howard Bashman



Abortion, in the news: From Florida, The Tallahassee Democrat today reports that "Houses focus on parental bill; King may bring amendment to floor in two weeks." The Miami Herald reports that "Both parties support abortion notice." The Orlando Sentinel reports that "Abortion-notice measure revised; House panel rejects clause that would let judges be involved in rape, incest cases." And The Associated Press reports that "Panel OKs Abortion Parental Notice."

Meanwhile, from Tennessee, The Tennessean reports that "Abortion measure dead, for this year; Sponsor decries vote for exceptions to ban" and "Both sides of abortion vote may revisit debate; Activists vow to use issue in future Senate elections."
Posted at 15:34 by Howard Bashman



The U.S. Court of Appeals for the Third Circuit tentatively schedules oral argument in the case challenging the constitutionality of the Solomon Amendment: The Third Circuit's Clerk's Office yesterday sent a letter to counsel advising that oral argument is currently scheduled to occur during the week of May 24, 2004. You can access online here and here some of the relevant court filings.
Posted at 14:31 by Howard Bashman



"FBI Posts Reward for Slain Prosecutor": The Associated Press has this report. The Baltimore, Maryland office of the Federal Bureau of Investigation issued this press release today announcing the reward.
Posted at 14:17 by Howard Bashman



What's the optimal dissenting opinion-to-majority opinion ratio? Today Seventh Circuit Judge John L. Coffey issued a 52-page dissent from an eight-page opinion that Circuit Judge Richard A. Posner wrote for the majority of a three-judge panel in a social security case. You can access the opinions at this link.
Posted at 13:45 by Howard Bashman



In news from the Ninth Circuit: The Public Information Office of the U.S. Court of Appeals for the Ninth Circuit today issued a news release entitled "Ninth Circuit Mourns Passing of Senior Circuit Judge Herbert Choy." And yesterday that office issued a news release entitled "Ninth Circuit Judicial Conference to Focus on Human Rights."
Posted at 13:33 by Howard Bashman



Access online the joint statement that U.S. Senators John Cornyn (R-TX) and Jon Kyl (R-AZ) issued yesterday in support of Fourth Circuit nominee William James Haynes II: The joint statement is available at this link.
Posted at 13:20 by Howard Bashman



"Utah Woman Charged With Murdering Fetus": The Associated Press provides this report. In other coverage, The Salt Lake Tribune reports that "Mother is charged in stillborn son's death" and "Charge against W. Jordan mother creates legal challenge." The Deseret Morning News today reports that "Mother is charged in stillbirth of a twin." And BBC News reports that "Mother charged in Caesarean row; A US woman who allegedly ignored medical warnings to have a Caesarean section has been charged with murder after one of her twins was stillborn."
Posted at 12:00 by Howard Bashman



"Behind the curtain": The Fort Worth Star-Telegram today contains this commentary about the recent release of the Justice Harry A. Blackmun papers.
Posted at 11:30 by Howard Bashman



"1994 case closes with payout of $12 million; Couple gets settlement in anti-Semitism dispute": This article appears today in The Denver Post. And The Rocky Mountain News today reports that "ADL pays more than $12 million to former Evergreen couple."
Posted at 11:28 by Howard Bashman



"Pledge splits many groups 'under God'": The Associated Press provides this report.
Posted at 11:21 by Howard Bashman



"Judicial Board To Try Holder For Plagiarism": This article appears today in The Tampa Tribune.
Posted at 11:11 by Howard Bashman



"Supreme Court Justice Antonin Scalia to speak at William and Mary": The school has issued this press release. Will any "How Appealing" readers be on hand to report on next Tuesday's event? Only time will tell.
Posted at 10:45 by Howard Bashman



Workers unite for a unionized military: Well, not quite, but this decision that the U.S. Court of Appeals for the D.C. Circuit issued today is rather interesting nonetheless.
Posted at 10:05 by Howard Bashman



"Dismissal of RICO Suit Against Banks Upheld; 3rd Circuit tosses claim of inflated prime rates": Shannon P. Duffy has this article today in The Legal Intelligencer. You can access yesterday's ruling by a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit at this link.
Posted at 09:45 by Howard Bashman



"Myers is the wrong choice for 9th Circuit; He received a tepid endorsement from the American Bar Association, and his environmental record isn't good." Larry Fahn, a Sacramento native who is the Sierra Club's 50th president, has this op-ed today in The Sacramento Bee.
Posted at 09:44 by Howard Bashman



Senior Ninth Circuit Judge Herbert Y.C. Choy dies at age 88: He was born on Kauai, Hawaii in 1916, joined the Ninth Circuit in 1971 as a Nixon nominee, and took senior status in 1984. Choy was the first Asian American to serve as a judge on an Article III federal court. Ninth Circuit Judge Richard R. Clifton, who now becomes the only Ninth Circuit judge resident in Hawaii, clerked for Judge Choy in the mid-1970s. The Honolulu Advertiser today contains this very interesting obituary.
Posted at 09:30 by Howard Bashman



"D.C. Commuter Tax Case Thrown Out": This article appears today in The Washington Post. The Washington Times reports that "Judge kills commuter-tax lawsuit." And The Richmond Times-Dispatch reports that "District loses suit for commuter tax; Judge rejects effort to impose fee on workers from outside the city." You can access yesterday's ruling of the U.S. District Court for the District of Columbia at this link.
Posted at 07:30 by Howard Bashman



"Judges as Cheerleaders": The Los Angeles Times today contains an editorial that begins, "The problem with federal rules that allow Supreme Court justices to police their own ethics is that nine different justices could set nine different standards." And in The Orlando Sentinel, Peter A. Brown has an essay entitled "Scalia recusing could give Kerry a bruising."
Posted at 07:20 by Howard Bashman



Senate Judiciary Committee in the news: The Washington Post today reports that "Senate Panel Agrees To Seek Federal Probe; GOP Aides' Accessing of Democratic Files at Issue." The Salt Lake Tribune reports that "Demos reach new decision on file probe." The Washington Times reports that "Judiciary panel defers memo action." Reuters reports that "U.S. Senate Panel Accord on Memo Probe Collapses." And Joshua Micah Marshall posts online here a letter that six U.S. Senators sent yesterday to the U.S. Department of Justice requesting the appointment of a prosecutor. Marshall's comments on the letter can be viewed here.

In other coverage, The Milwaukee Journal Sentinel reports today that "Sykes clears hurdle to federal appeals bench; Senate panel approves her nomination, but 5 Democrats vote no." The Capital Times of Madison, Wisconsin contains an editorial entitled "Rejecting Diane Sykes." Neil A. Lewis of The New York Times notes here (second item) that "The Senate Judiciary Committee split along party lines in recommending William J. Haynes II to the full Senate for a seat on the federal appeals court in Richmond, Va." And The Philadelphia Inquirer reports that "Judge's nomination moves to full Senate; Chester County Court Judge Juan R. Sanchez was picked to fill a federal post in Pa.'s Eastern District."
Posted at 07:00 by Howard Bashman



Thursday, March 11, 2004
Elsewhere in Thursday's newspapers: The Boston Globe reports, in same-sex marriage-related news, "A hunt for middle ground; Travaglini voices confidence on a marriage accord today"; "National events expected to flavor debate"; "Republican gay rights group hits Bush, Romney stances"; "Ky. preacher wages anti-gay crusade"; and "For lawmakers, 3 amendment options to consider." Archbishop Sean P. O'Malley has an op-ed entitled "Charity needed in debate on gay marriage." And columnist Joan Vennochi has an op-ed entitled "Outraged, but not over gay marriage."

The Los Angeles Times reports that "2nd Sniper Is Sentenced to Life for Slaying; Lee Boyd Malvo won't be eligible for parole. He was linked to 10 killings but was tried for one." In news from California, "Judicial Battle Erupts Over Suspect's Release; A U.S. judge in L.A. is unable to block a magistrate's release of an accused swindler"; "Attorney Denies Student Started SUV Fires; Lawyer says e-mails cited by the FBI can't be tied to his client; William Cottrell is accused of arsons that caused $3.5 million in damage"; and "Judge Sets Oracle Antitrust Trial." In other news, "House Tightens Belt on Fatty Food Suits." An editorial is entitled "Get Creative in Fighting Fat." And letters to the editor appear under the heading "A Reversal in the Case of Justice Scalia."

The Washington Times reports that "State vows to put Malvo on trial again." In other news, "Massachusetts revisits 'marriages.'" An article reports that "House bans suits against eateries." And Tom Knott has an essay entitled "Muhammad does not deserve mercy, candles."

Finally for now, USA Today reports that "Mass. legislators revisit gay-marriage debate." And in other news, "Justice pursued for Emmett Till; Filmmaker cites new evidence in '55 racial slaying."
Posted at 23:50 by Howard Bashman



"A flap over foreign matter at the Supreme Court; House members protest use of non-U.S. rulings in big cases": Tom Curry has this report online at MSNBC today.
Posted at 23:15 by Howard Bashman



"Ashcroft's antiporn crusade": Declan McCullagh had this essay earlier this week.
Posted at 23:00 by Howard Bashman



"Judge Roy Moore Speaks! A Christian right presidential run creaks a half-inch forward." Timothy Noah has this essay online at Slate tonight.
Posted at 22:31 by Howard Bashman



"State Supreme Court orders same-sex marriages halted; Justices to rule on narrow constitutional issue": Bob Egelko will have this article in Friday's issue of The San Francisco Chronicle.
Posted at 22:20 by Howard Bashman



"King decried gay groups; AG opposed abortion, homosexuality in early 1990s CW editorials": This article about Alabama's new Attorney General appears today in The Crimson White.
Posted at 22:13 by Howard Bashman



Available online from National Public Radio: This evening's broadcast of "All Things Considered" featured segments entitled "California Court Blocks Gay Marriages"; "Massachusetts Debates Gay Marriage"; "Guantanamo Detainees Freed in Britain"; and "Lawmakers Less Sure of Schiavo Law."

Today's broadcast of "Talk of the Nation" contained a lengthy segment entitled "Guantanamo Update."

And today's broadcast of "Day to Day" contained segments entitled "Slate's Chatterbox: 10 Commandments Judge Speaks Out" and "Mass. Legislature Continues Gay Marriage Debate."
Posted at 19:44 by Howard Bashman



The Salt Lake Tribune is reporting: Today's issue contains articles headlined "Flag-burning hearing veers into debate on veteran care"; "Teens may face death penalty"; and "Public skips sexy-business hearing in Salt Lake."
Posted at 19:32 by Howard Bashman



"Senate panel backs Hong for judge post": This report appears today in The Honolulu Advertiser.
Posted at 19:30 by Howard Bashman



In news from Harvard: The Harvard Crimson today reports that "Law Prof To Advise Pope" and "A Yale Running Harvard? Phyllis Yale '78 seeks Overseers post." And The Harvard Law Record contains an article headlined "HLS GOP enters the Beltway; DC trip brings students to meet Scalia, Wolfowitz, Santorum, White House counsel, other members of the vast right-wing conspiracy."
Posted at 19:15 by Howard Bashman



The Associated Press is reporting: David Kravets reports that "Two States Deal Setbacks to Gay Marriage." And in other news, "Okla. Jury Seated in Nichols Murder Trial"; "Attorney General Improving After Surgery"; and "Woman Charged With Murder of Unborn Child."
Posted at 19:05 by Howard Bashman



"GOP Memo Probe May Head to Justice Dept." Jesse J. Holland of The Associated Press offers this coverage. The article notes that the Senate Judiciary Committee today also sent to the floor of the U.S. Senate the nomination of William James Haynes II to serve on the U.S. Court of Appeals for the Fourth Circuit.

Also today, U.S. Senator Edward M. Kennedy (D-MA) issued this statement about the Haynes nomination and this statement about the recess appointment of William H. Pryor, Jr. to the U.S. Court of Appeals for the Eleventh Circuit.

Update: Eugene Volokh links to a brief that the Clinton administration filed in federal court arguing that a recess appointment is valid no matter how brief the recess in which the appointment took place happened to be.
Posted at 17:50 by Howard Bashman



"California Supreme Court blocks San Francisco gay marriages": David Kravets of The Associated Press provides this report. The text of the Supreme Court of California's order (see toward the bottom of this Web page) reads:
Respondent [the County Clerk] is ordered to show cause before this court, when the matter is called at the late May 2004 or June 2004 calendar, why a writ of mandate should not issue, directing respondent to apply and abide by the provisions of Family Code sections 300, 301, 308.5, and 355 in the absence of a judicial determination that these statutory provisions are unconstitutional. Pending this court's determination of this matter or further order of this court, respondent is directed to enforce and apply the provisions of Family Code sections 300, 301, 308.5, and 355 without regard to respondent's personal view of the constitutionality of such provisions, and to refrain from issuing marriage licenses or certificates not authorized by such provisions. In addition, pending this court's determination of this matter or further order of this court, all proceedings in Proposition 22 Legal Defense and Education Fund v. City and County of San Francisco et al. (San Francisco Super. Ct. No. CPF-04-503943) and Thomasson et al. v. Newsom et al. (San Francisco Super. Ct. No. CGC-04-428794) are stayed. This stay does not preclude the filing of a separate action in superior court raising a substantive constitutional challenge to the current marriage statutes.

The return in this matter, limited to the legal question whether respondent is exceeding or acting outside the scope of her authority in refusing to enforce the provisions of Family Code sections 300, 301, 308.5, and 355 in the absence of a judicial determination that such provisions are unconstitutional, is to be filed by respondent in the San Francisco Office of the Supreme Court on or before Thursday, March 18, 2004. In addressing the foregoing issue, the return should discuss not only the applicability and effect of article III, section 3.5 of the California Constitution, but any other constitutional or statutory provision or doctrine that may be relevant to the resolution of the foregoing issue.

A reply may be filed by petitioners in the San Francisco Office of the Supreme Court on or before Thursday, March 25, 2004.

Any application to file an amicus curiae brief, accompanied by the proposed brief, may be filed in the San Francisco Office of the Supreme Court on or before Thursday, March 25, 2004.

Any reply to an amicus curiae brief may be filed in the San Francisco Office of the Supreme Court on or before Monday, March 29, 2004.
The order appears to have been signed by all seven Justices on California's highest court.
Posted at 17:31 by Howard Bashman



"Jose Padilla 'Enemy Combatant' Case Resource Center": The Wiggin & Dana law firm offers this online resource.
Posted at 16:54 by Howard Bashman



In news from Pennsylvania: The Pittsburgh Post-Gazette today contains articles headlined "State Senate OKs limit on medical malpractice; Rendell has 'philosophical differences' with cap" and "Pennsylvania Supreme Court justice honored" (plus, access here the entire list of Common Good award-winning jurists). And The Philadelphia Inquirer today contains articles headlined "Specter vs. Toomey: Tight race, tough ads" and "Asbury Park halts issuing of licenses."
Posted at 16:46 by Howard Bashman



"A Bill to allow Congress to reverse the judgments of the United States Supreme Court": On Tuesday of this week, this proposed legislation was introduced in the U.S. House of Representatives. The proposed short title for the law is the "Congressional Accountability for Judicial Activism Act of 2004."
Posted at 16:15 by Howard Bashman



"Senate panel OKs Sykes nomination": The Associated Press provides this report, which states that the Senate Judiciary Committee's vote in favor of the nomination of Diane S. Sykes to serve on the U.S. Court of Appeals for the Seventh Circuit was 15-5. That vote count is likely in error, as the committee has only 19 members.

At today's executive business meeting, Judiciary Committee Chairman Orrin G. Hatch (R-UT) entered a statement into the record, and Ranking Democratic Member Patrick J. Leahy (D-VT) did likewise.
Posted at 16:00 by Howard Bashman



"20 questions for the appellate judge" update: I am very pleased to report that Circuit Judge Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit has agreed to participate in this blog's "20 questions for the appellate judge" feature as the October 2004 interviewee. As a result, the final U.S. Court of Appeals to produce a "20 questions" interviewee will either be the Second or the Fourth Circuit.
Posted at 15:22 by Howard Bashman



"Special prosecutor urged in file snooping by GOP": Lyle Denniston has this article today in The Boston Globe.
Posted at 14:45 by Howard Bashman



U.S. Supreme Court skullcap trivia: Justice Harry A. Blackmun speaks of, and models, his official skullcap at thirteen and a half minutes into the first video segment (Real Player required) of the Justice Harry A. Blackmun oral history project. To access previous mentions of U.S. Supreme Court skullcaps here at "How Appealing," visit here, here, here, and here.
Posted at 14:11 by Howard Bashman



"Nader Wins Priceless Fair Use Victory v. MasterCard": The "LawGeek" blog provides this report on a ruling that the U.S. District Court for the Southern District of New York issued earlier this week. In news coverage of the ruling, The Houston Chronicle yesterday reported that "Nader cleared in parody ad flap."
Posted at 14:06 by Howard Bashman



In Senate Judiciary Committee file access matter, Manuel A. Miranda's attorneys respond to the report of the Senate Sergeant at Arms: You now access online both the factual response to the Pickle report and the legal response to the Pickle report. The Pickle report itself can be accessed here.
Posted at 13:58 by Howard Bashman



"Scalia swears in ex-clerk to District Court bench": This article appears today in The Chicago Tribune.
Posted at 13:30 by Howard Bashman



Limbo: Footnote one of this opinion that the U.S. Court of Appeals for the Eighth Circuit issued today begins:
Unfortunately, we must begin this decision with an explanation for a delayed decision in this case. Docket records show that Snead properly appealed the district court's decision on April 23, 2001. However, a communication failure between the district court and this court caused this case to sit in limbo for over two years, until it finally received an appellate docket number on June 3, 2003.
As a small consolation for the delay, the Social Security claimant-appellant prevailed in today's decision on appeal.
Posted at 12:10 by Howard Bashman



You may already have won partial reversal of an order of dismissal entered against you: Today, via an unpublished opinion, the U.S. Court of Appeals for the Eighth Circuit reversed in part an order of dismissal entered in a lawsuit brought against the sponsor of the Publishers Clearing House sweepstakes.
Posted at 12:01 by Howard Bashman



"Test Your Knowledge Of Federal Judicial Recess Appointment Trivia": The March 2004 installment of my monthly appellate column, published on Monday of this week in The Legal Intelligencer, can now be accessed online at this link.
Posted at 11:45 by Howard Bashman



"What Wrongdoing? Hate to say it, but: There is no there there." This essay by Manuel Miranda appears this morning at National Review Online.
Posted at 11:44 by Howard Bashman



From this morning's broadcast of NPR's "Morning Edition": This morning's broadcast included segments entitled "After Breakup, Law Often Treats Gays as Married" and "Constitutional Amendments." As a reader has already emailed to note, the law professor who is interviewed in the second of those two segments speaks misidentifies the U.S. Supreme Court decision involving Texas to which he intends to refer.
Posted at 11:31 by Howard Bashman



The Library of Congress makes accessible online the entire Justice Harry A. Blackmun oral history project: Here's one more reason to love the Internet -- the Library of Congress has just made accessible online both the videos and the text of all thirty-eight hours of the Justice Harry A. Blackmun oral history project. You can access the video segments via this link (Real Player required). You can access the transcripts of the interviews via this link. You can access the Library of Congress's main site for the Harry A. Blackmun papers here.
Posted at 10:36 by Howard Bashman



Reader mail: Gary Feinerman, Solicitor General, Office of the Illinois Attorney General, emails:
I enjoyed this morning's post regarding Mark Filip's investiture. Justice Scalia did indeed administer the oath of office, and then proceeded to offer some personal reflections about Judge Filip that were warm, gracious and witty. As for the latter, and directing his words to Chief Judge Flaum and former Chief Judge Bauer of the Seventh Circuit, Justice Scalia said that it was his hope to still be sitting on the Supreme Court the first time the Seventh Circuit reversed Judge Filip. Judge St. Eve, a former colleague of Mark's in the U.S. Attorney's Office, welcomed him to the bench and noted how grateful she was to no longer be the youngest judge in the Northern District. Judge Williams of the D.C. Circuit and Deputy Solicitor General Paul Clement, among other friends and colleagues, also spoke about Mark's many fine qualities and why he will make an outstanding judge. It was a wonderful ceremony.

Your blog is an invaluable resource to the lawyers in my office and throughout Illinois. The bar owes you a debt of gratitude for your efforts.
Thanks much for these additional details and your kind words.
Posted at 10:20 by Howard Bashman



Access online the agenda for this morning's executive business meeting of the Senate Judiciary Committee: The agenda for the meeting, which is due to get underway ten minutes from now, can be accessed here.
Posted at 09:20 by Howard Bashman



How quickly they grow old: I recently mentioned (see here and here) that District Judge Amy J. St. Eve of the U.S. District Court for the Northern District of Illinois is currently the youngest female federal district judge. Effective this week, however, she is no longer the youngest federal district judge serving in that district. Now that distinction belongs to Mark R. Filip, who is even younger. Word is that yesterday Justice Antonin Scalia, for whom Filip clerked on the U.S. Supreme Court, administered the judicial oath of office to Filip in Illinois. The distinction of youngest current U.S. District Judge continues to belong to David L. Bunning, whose date of birth is July 14, 1966.
Posted at 07:11 by Howard Bashman



"Monument backers plan appeal; Boise wants coalition to pay city’s legal fees": This article appears today in The Idaho Statesman. Meanwhile, yesterday's issue of The Birmingham News contained an editorial entitled "Lacking merit: Ten Commandments battle dealt another legal setback."
Posted at 07:07 by Howard Bashman



"Blackmun's Constitution: The former Supreme Court justice's records shed new light on Roe v. Wade." Terry Eastland has this essay online at The Weekly Standard.
Posted at 07:05 by Howard Bashman



In Thursday's newspapers: The Washington Post reports that "Malvo Is Sentenced to Life; Teen Convicted in Fairfax May Plead Guilty in Other Sniper Attacks." In related news, "Plea Deal for Malvo Is Considered; Teen Would Admit Guilt in Va. Attacks, Avoid Death Penalty" and "Victims' Relatives Still Ask, 'Why?'; Snipers' Motives Remain Unresolved." An article reports that "Prosecutor Denies He Subverted Lentz Jury; Lentz Prosecutor Denies Slipping Evidence to Jury Appeals Court to Review Trial Judge's Rulings." In other news, "Gov. Romney in Middle on Issue of Gay Unions; Mass. Republican Walks Fine Line." An article reports that "Fast-Food Chains Get a Break Today; Bill Would Prohibit Lawsuits Over Obesity." In other news, "McCain Says FEC Is Not Enforcing Law." Richard Cohen has an op-ed entitled "Justice by the Numbers." And a letter to the editor appears under the heading "Protecting Patients' Privacy."

The New York Times reports that "Judge Affirms Life Sentence for Teenager in Washington-Area Sniper Killings." In other news, "Ashcroft Weighs Granting of Asylum to Abused Women." Adam Liptak reports that "$5 Million Settlement Ends Case of Tainted Texas Sting." In other news, "Vote in House Offers a Shield for Restaurants in Obesity Suits." An article reports that "Senators Say Political Groups Are Circumventing Finance Law." In other news, "Scientist in Plague Case Is Sentenced to Two Years." And in local news, "Asbury Park Halts Gay-Wedding Applications"; "Refusal to Turn Over Data Further Roils Rowland Case"; "Schools' Top Lawyer Quits in Uproar Over Nepotism"; and "When the Right Jury Does a U-Turn."

Finally for now, The Christian Science Monitor reports that "Politicians hit a hot button; Gay marriage debate has drawn elected officials into roles that may affect their futures - and shape opinion on the issue."
Posted at 06:20 by Howard Bashman



"Ginsburg Linked to Legal Activist Fund; The justice lends her name to a lecture series backed by a women's rights advocacy group": This article will appear in Thursday's edition of The Los Angeles Times.
Posted at 01:00 by Howard Bashman



Wednesday, March 10, 2004
In Wednesday's newspapers: The Washington Post reports that "Defiant Muhammad Sentenced to Death For Sniper Slaying." In related coverage, "Sniper Is Impassive Amid the Faces of Grief." An article reports that "Ashcroft in Guarded Condition After Surgery, Doctor Reports; Surgeon Hopes Procedure Will Prevent Future Pancreatitis." In other news, "Grants to Religious Groups Top $1.1 Billion; Administration Lauds Initiative." An article reports that "Gay GOP Group Challenges Bush on Marriage; Log Cabin Republicans to Air TV Ad in D.C., 7 States." And in other news, "Final 'Va. Jihad' Defendant Acquitted; 11 Were Indicted In Federal Probe."

The New York Times reports that "Mastermind of Sniper Rampage Is Sentenced to Die." In other news, "Ashcroft Undergoes Gallbladder Operation." In news from overseas, "Leader of '85 Achille Lauro Attack Dies at Prison in Iraq" and "Five Britons Released From Guantanamo Arrive Home." In local news, "Issuing Licenses, Quietly, to Couples in Asbury Park"; "State Work Benefited Firms Close to Rowland"; and "Prosecutors Say Cuts Force Plea Bargains." Columnist William Safire has an op-ed entitled "Privacy in Retreat." And letters to the editor appear under the heading "The National Conversation About Gay Marriage."

The Boston Globe reports that "Harvard law professor named to Vatican post." In same-sex marriage-related news, "Gay-marriage lobbying builds; Activists on both sides converge on State House for crucial session" and "Senate leaders push compromise." Editorials are headlined "Why discriminate" and "A woman's case for asylum." Columnist Scot Lehigh has an op-ed entitled "The people's right to decide?" And Stanley Kurtz has an op-ed entitled "Death of marriage in Scandinavia."

The Los Angeles Times reports that "Sniper Sentenced to Die for 'Vile' Killings; Judge rejects leniency and upholds jury's verdict against John Allen Muhammad." In other news, "Ashcroft Recovering From Removal of Gallbladder." In news from Colorado, "Prosecutor Files Appeal." An article reports that "5 Terror Suspects Return to Britain." And in local news, "Caltech Grad Student Held in Arson Fires of 125 SUVs; Suspect in blazes that caused $3.5 million in damage is traced by FBI agents using e-mail to The Times" and "Teen Pleads Guilty to Conspiracy, Bank Fraud; Internet con artist Cole Bartiromo could be sent to prison for plotting to gamble with $400,000 from a Wells Fargo account."

The Washington Times reports that "Muhammad sentenced to death." In other news, "Ashcroft's health 'guarded' after gallbladder removal." Cal Thomas has an op-ed entitled "The law as seen by Blackmun." And Paul Greenberg has an op-ed entitled "One life or two?"

Finally for now, The Christian Science Monitor contains an article headlined "The impact of '3 strikes' laws a decade later; Supporters cite a drop in crime and cost savings, while critics note other expenses and the law's harsh nature."
Posted at 23:55 by Howard Bashman



"Students, KKK take stands; Rally at U of L presses officials over decision to forgo a ban": This article appears today in The Courier-Journal of Louisville, Kentucky.
Posted at 23:49 by Howard Bashman



Get the results of yesterday's election to the Supreme Court of Texas: The "Texas Law Blog" provides links to news coverage here and to the results themselves here.
Posted at 23:44 by Howard Bashman



"Under God? A Discussion of the Constitutionality of the Pledge of Allegiance." The Pew Forum on Religion & Public Life will host this discussion next Friday morning at the National Press Club in Washington, DC. That organization also provides links to a bunch of "Pledge of Allegiance Resources" here.
Posted at 23:40 by Howard Bashman



Reuters is reporting: Now available online are articles headlined "Illinois court won't hear tobacco appeal till Sept" and "Bryant Prosecutor Says Accuser's Sex Life Private."
Posted at 23:39 by Howard Bashman



"Pryor Restraint": Attorney Robert N. Weiner has this essay online today at the Web site of the Center for American Progress.
Posted at 23:34 by Howard Bashman



"The First Amendment on Trial: Free speech advocates say the outcome of the Martha Stewart trial could have implications, not just for Stewart's future and her company, but for the First Amendment as well." Newsweek posted online this article today.
Posted at 23:00 by Howard Bashman



In today's edition of The San Francisco Chronicle: Bob Egelko reports that "Lesbian couple lose suit against San Diego club; Women were denied family membership." And in other news, "Lawyer may try to move trial -- again; He doubts Peterson can get fair jury in Redwood City."
Posted at 22:40 by Howard Bashman



Harvard Journal of Law & Technology hosts moot court for Hiibel v. Nevada: The bloggers at "Per Curiam" were there and offer this account.
Posted at 22:20 by Howard Bashman



"Kentucky lawmaker seeks high court curb; Bill would give Congress override": The Associated Press provides this report.
Posted at 22:15 by Howard Bashman



"HLS Library Unveils Legal Portraits Exhibit": Not quite sure what to make of this news, but thanks to the Harvard Law School's library an online database of legal portraits now exists that can be searched via this link.
Posted at 21:11 by Howard Bashman



Hooked on "20 questions": Harvard Law student Mitch Webber writes at his blog "Red and Blue":
And thanks to Jeremy, I'm hooked on Howard Bashman's 20 Questions site. Reading appellate opinions every day, it's sort of uplifting to find that so many members of our federal judiciary are thoughtful, mischievously funny, and that they genuinely want to do good.

This week's featured judge is Bruce Selya of the First Circuit. The early questions evoke some good responses about case-law as a literary genre and the importance of accessibility in legal writing.
Thanks for the kind words.
Posted at 21:07 by Howard Bashman



"U.S. appeals panel hears Pa. dispute over pledge law": This article appears today in The Philadelphia Inquirer.
Posted at 20:55 by Howard Bashman



In tomorrow's edition of The Hill: Tomorrow's issue will contain articles headlined "Miranda files rebuttal to memo report" and "Court ruling fuels Baby Bell battle; Sides solicit Ted Olson for support."
Posted at 19:59 by Howard Bashman



United Press International is reporting: Now available online are articles headlined "Rehnquist: Age spurs retirement thoughts" and "Scalia doesn't vote on death stay."
Posted at 19:57 by Howard Bashman



"Judge Rules 'Girls Gone Wild' Is Not Porn": The Associated Press provides this report from Florida. Adult Video News reports that "Judge Declares Girls Gone Wild Not Child Porn" (caution -- arguably not work-safe). And a press release from Mantra Entertainment is entitled "Joe Francis and Girls Gone Wild Win Major Ruling in Florida; Judge Rules That Flashing Is Not 'Sexual Conduct.'"
Posted at 19:50 by Howard Bashman



"Unabomber journal stays secret; Judge won't let Kaczynski have it back because he would 'extol celebrity status'": This article appears today in The San Francisco Chronicle.
Posted at 19:11 by Howard Bashman



"Stanford names Justice O'Connor commencement speaker": The San Jose Mercury News provides this news update. And you can access here the press release that Stanford University issued today.
Posted at 19:05 by Howard Bashman



"Guantanamo Case Draws Wide Range of 'Amicus' Briefs to Supreme Court": The Newhouse News Service offers this report.
Posted at 18:58 by Howard Bashman



"U.S. Said Worried About Image, Not Law in Guantanamo": Reuters provides this report.
Posted at 18:45 by Howard Bashman



"Hiibel Revisited: Apocalyptic constitutional moment ahead." Law Professor Barbara Babcock has this jurisprudence essay online at Slate this evening.
Posted at 18:35 by Howard Bashman



"Pickle: New leak probe; GOP suspects that Thursday’s blunder was intentional." The Hill today contains an article that begins, "Senate Sergeant at Arms Bill Pickle is to investigate whether a confidential report on leaked Democratic memorandums was itself improperly leaked, potentially damaging the careers of more than 20 Senate staffers." But what if the results of that investigation are improperly leaked, and so on, etc.
Posted at 18:10 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Rehnquist Backs High Court Memorial Coin" (plus, access the Chief Justice's prepared congressional testimony here); "Teen Sniper Sentenced to Life in Prison"; "Thong Contest Issue in Court"; "Gay Republicans to Run Anti-Amendment Ad"; "House Moves to Ban Obesity Lawsuits": "Nichols' Lawyers: FBI Withheld Documents" (plus, view the documents in question via this link); "Nichols' Judge to Address Jury Lying"; "Peterson's Attorneys May Seek Third Venue"; and "Drivers Spot X-Rated Films in Other Cars."
Posted at 17:55 by Howard Bashman



"Solomon amendment suit heats up; Ruling by summer in pivotal military recruiting case": This article appears in today's edition of Washington Square News. And in news from New Jersey, "Rutgers contemplates suing military."
Posted at 17:40 by Howard Bashman



"After $1.7 million landed in the wrong account, CoreStates insisted it could seize the money. It was a very costly move." In March 2001, The Philadelphia Inquirer's Sunday Magazine contained this cover story. Today, I and several other lawyers filed this merits brief for plaintiff-appellee in the Supreme Court of Pennsylvania in that case. It was a particular pleasure to work on the brief with Law Professor Ronald J. Mann, who may very well be the Nation's leading expert on the banking law provisions of the Uniform Commercial Code.
Posted at 17:20 by Howard Bashman



"Exclusive: Rehnquist mulling retirement; The Chief Justice talks to NBC News correspondent Jamie Gangel about his new book -- and whether he'll step down from his job." An interview with the Chief Justice appeared this morning on NBC's Today show.
Posted at 17:11 by Howard Bashman



On the road again: A merits brief that's due to be filed today in the Supreme Court of Pennsylvania in one of the most interesting and important cases on which I have ever worked will have me out of the office for most of the day today visiting with co-counsel who tried the case to an especially impressive result. Regular programming here at "How Appealing" will resume later today.
Posted at 07:00 by Howard Bashman



Today in the Senate Judiciary Committee: At 10 a.m. today, the committee will hold a hearing entitled "Letting the People Decide: The Constitutional Amendment Authorizing Congress to Prohibit Physical Desecration of the Flag of the United States." Once the hearing is underway, that link should provide access to live video of the proceedings.

And at 2:30 p.m. today, the committee will hold a confirmation hearing for several federal judicial nominees, including Second Circuit nominee Peter W. Hall. Similarly, live video of this hearing should be accessible via this link once the hearing is underway.
Posted at 06:56 by Howard Bashman



"Democrats' stand on nominees hit": Today's edition of The Washington Times contains this article, which begins: "Republicans have accused Democrats of reaching "absurd" new lengths to block President Bush's judicial nominees."
Posted at 06:55 by Howard Bashman



"Courts too powerful, federal justice says; High court's Scalia gives speech in N.O.": This article appears today in The Times-Picayune.
Posted at 06:46 by Howard Bashman



Tuesday, March 09, 2004
In Tuesday's newspapers: The Washington Post reports that "Democrats Cite Politics in Probe Reimbursement." A related graphic is entitled "Footing the Bill." In other news, "Detainees' Kin Appeal for Justice At Court's Door." An article reports that "Seattle Mayor Recognizes Employees' Gay Marriages." In local news, "Va. House Passes Bill Giving Break To Inmates." And an editorial is entitled "Some Progress on Detainees."

The Los Angeles Times reports that "UC Officials Note Racial Disparity in Admissions." In same-sex marriage-related news, "Same-Sex Marriage Battle Moves to Seattle; With the support of the mayor, six couples sue King County after being denied licenses; A bid to block gay weddings in the Portland area fails"; "Goldberg and Partner Marry in San Francisco; State Sen. Sheila Kuehl presides over ceremonies for six same-sex couples who are united at City Hall"; and "Lesbian Couple Win a Round; Appeals court rules that a judge should hear the partners' arguments in trying to obtain spousal privileges at a San Diego country club" (plus, access Monday's ruling of California's Court of Appeal for the Fourth Appellate District, Division One, at this link). A front page article is headlined "Seeing Murder in a Face; A family refuses to believe a battered prisoner hanged himself, as officials say; The U.S. government has reopened the case." An op-ed by Brian Doherty is entitled "Give Them Your Name and Give Up Your Rights." An op-ed by Law Professor Jonathan Turley is entitled "When Silence Isn't Golden; Martha Stewart's failure to testify holds a lesson for other celebrity defendants." Columnist Patt Morrison has an essay entitled "Ashcroft Gunning for Peek at Private Medical Records." And letters to the editor appear under the heading "Stewart Gets Slammed as Lay and Others Stay Free."

The Boston Globe reports that "Fragile compromise seen on banning gay marriage." An article reports that "Powell freed from prison; DNA evidence clears him." And in related news, "Inmate's exoneration renews calls for an 'innocence' panel."

The New York Times reports that "As Stewart Attends Hearing, Company Studies Options." In same-sex marriage-related news, "In Seattle, a Legal Challenge to Marriage Laws"; "Asbury Park Deputy Mayor Officiates at a Gay Marriage"; "Gay and Republican, but Not Necessarily Disloyal to President"; and "Equal Chance of Divorce for All." In local news, "In Weighing an Impeachment, a Hartford Panel Avoids Rules" and "City Police Giving Back Seized Cars." In book-related news from Florida, "A Poet's Spirit Springs to Life on Death Row." An op-ed by Don Browning and Elizabeth Marquardt is entitled "A Marriage Made in History?" And letters to the editor appear under the heading "Lessons From the Stewart Verdict."

USA Today reports that "1913 law could foil plans for gay marriages in Mass." And in other news, "Muslims see new opposition to building mosques since 9/11; Some battles go beyond not-in-my-backyard issues."

Finally for now, The Christian Science Monitor contains an op-ed by R. Foster Winans entitled "Martha's burden: mental weight of a lie."
Posted at 23:15 by Howard Bashman



"Justice Dept. Backs Off Its Demand for Abortion Records": This article will appear in Wednesday's edition of The New York Times.
Posted at 23:10 by Howard Bashman



"Judge to hear arguments Thursday on record verdict": The AP provides this report from Alabama.
Posted at 22:40 by Howard Bashman



In news pertaining to the U.S. Supreme Court: In news from Huntington, New York, The Associated Press reports that "Justice O'Connor calls release of Blackmun papers 'unfortunate.'" Justice Sandra Day O'Connor spoke this evening at the Touro Law Center, where she received the 2003 Bruce K. Gould Book Award for her book "The Majesty of the Law: Reflections of a Supreme Court Justice." No waterfowl were killed for sport in connection with her visit.

And in other news, The AP tonight reports that "Scalia returns to Louisiana, takes up judges' independence."
Posted at 22:10 by Howard Bashman



Virginia is for lovers? The Roanoke Times reports today that "Senate delays ruling on sodomy; Some fear that a court challenge of the private sex acts provision could inadvertently invalidate a ban on public sodomy." The article begins, "A Senate committee voted Monday to leave Virginia's anti-sodomy law intact despite a recent Supreme Court ruling that invalidates states' attempts to restrict the private sex lives of adults." And in other coverage of this news, The Associated Press reports that "Senate committee leaves Virginia sodomy law untouched."
Posted at 20:09 by Howard Bashman



"Sykes words raise impartiality questions": John Nichols, associate editor for The Capital Times, today has this op-ed in that newspaper. More background on this issue is available via my earlier post at this link.
Posted at 19:55 by Howard Bashman



"Pittman to conclude 40 years of service in state government": This article published today in The Clarion-Ledger reports on the soon-to-be former Chief Justice of the Supreme Court of Mississippi.
Posted at 19:53 by Howard Bashman



"Sacramento man argues Pledge of Allegiance case at Santa Clara University; Atheist wants 'under God' removed from Pledge": Howard Mintz offers this news update in The San Jose Mercury News. Mintz reports: "The law professors who posed as Supreme Court justices were pretty impressed with Newdow's legal knowledge and presentation. But he'll have to improve on his attire when he shows up before Chief Justice William Rehnquist & Co. Newdow forgot half his suit and argued before the professors barefoot and clad in shorts, to go with a suit jacket and tie."
Posted at 19:42 by Howard Bashman



"Fighting Words: Leave Scalia alone." Slate has just posted online this jurisprudence essay by Dahlia Lithwick.
Posted at 19:30 by Howard Bashman



"Moore Gets Coy: The religious right's Ralph Nader keeps his options open." Timothy Noah has this essay online at Slate.
Posted at 19:18 by Howard Bashman



Get me rewrite: Reuters is reporting that "South Dakota Governor Urges Abortion Bill Rewrite."
Posted at 18:27 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Chief Justice Rehnquist Mulls Retirement." And in other news, "Surgeons Remove Ashcroft's Gallbladder."
Posted at 18:24 by Howard Bashman



"Has Anyone Seen A Flag Burn?" The Hartford Courant's take, in this editorial published today, on tomorrow's Senate Judiciary Committee hearing parallels my earlier reaction. As far as I can tell, the witness list features no flag burners.
Posted at 16:55 by Howard Bashman



Pledge of Allegiance case argued in the U.S. Court of Appeals for the Third Circuit today: Since the anti-Pledge lawyer is a good buddy of mine, and a lead plaintiff the son of a long-time friend, I won't poke too much fun at this case. The Philadelphia Inquirer provides this news update on today's oral argument.
Posted at 16:23 by Howard Bashman



"Slate's Jurisprudence: Scalia's Conflicts of Interest." Hear Slate's Dahlia Lithwick (click here to listen; Real Player required) from today's broadcast of NPR's "Day to Day."
Posted at 15:22 by Howard Bashman



"Rounds Stalls Abortion Bill": The Argus Leader of Sioux Falls, South Dakota provides a news update that begins, "Gov. Mike Rounds will issue a procedural veto of a bill that would ban most abortions in South Dakota and ask the Legislature to make changes in the proposal next week, a state lawmaker said today."
Posted at 15:12 by Howard Bashman



"UC reveals admissions disparities; Data show Cal accepts minorities at higher rate than whites despite ban on affirmative action": This article appears today in The Oakland Tribune.
Posted at 14:46 by Howard Bashman



"Memo call to Secret Service": The Hill today reports here that "In a highly unusual move, Senate Judiciary Committee Republicans are pushing for the Secret Service to decide whether the controversy over unauthorized access of Democratic memos should be referred to the Justice Department for a criminal investigation."
Posted at 13:47 by Howard Bashman



"Recuse to Lose: The partisan ethics wars reach the Supreme Court." This editorial appears today in The Wall Street Journal.
Posted at 13:46 by Howard Bashman



"Judge must go, Kennedy letter says": This article appears today in The Hill. The letter that U.S. Senator Edward M. Kennedy (D-MA) sent to the judges of the U.S. Court of Appeals for the Eleventh Circuit can be viewed at this link. And you can access online a very interesting table listing "Intrasession Recess Appointments to Article III Courts" compiled by the Congressional Research Service at the request of the Senate Democratic Policy Committee.
Posted at 13:31 by Howard Bashman



BREAKING NEWS -- Virginia-based trial judge sentences convicted DC-area sniper John Allen Muhammad to death: The Associated Press provides this report.
Posted at 11:51 by Howard Bashman



"Exceptions lifted from anti-abortion measure; Change means constitution wouldn't guarantee rights in cases of rape, incest, mother’s health, but lawmakers could": If you think that the headline is confusing, just wait until you read the details contained in this article published today in The Tennessean.
Posted at 11:26 by Howard Bashman



In news from Pennsylvania: Today's issue of The Pittsburgh Post-Gazette reports that "State court denies release of Megan's Law records; Auditor general sought offenders' contact information to review police monitoring" and "Again, lawmakers consider proposal to limit jury awards." And The Associated Press reports that "Gantman won judge's seat with wider lead."
Posted at 11:24 by Howard Bashman



"Group calls Big Island judicial nominee unfit": The Honolulu Advertiser today provides this report.
Posted at 11:21 by Howard Bashman



"High Court Scout action reverberates in Bay Area": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 11:18 by Howard Bashman



"Should Foreign Law Be Used To Interpret Our Constitution?" Stuart Taylor Jr. has this article in the current issue of National Journal.
Posted at 11:05 by Howard Bashman



Access online the answers of Seventh Circuit nominee Diane S. Sykes to the written questions of U.S. Senator Dick Durbin (D-IL): The questions and answers can be accessed here. Justice Sykes' answers to Senator Durbin's questions are the subject of an article headlined "Sykes faces questions from Democratic senator; Durbin cites her remarks in case against two abortion protesters; liberal advocacy group objects" published today in The Milwaukee Journal Sentinel.
Posted at 10:33 by Howard Bashman



C-SPAN broadcasts additional portions of the Justice Harry A. Blackmun oral history project: These additional portions (Real Player required) aired on this past Saturday's telecast of "America and the Courts."
Posted at 09:31 by Howard Bashman



Following oral argument in the Pledge of Allegiance case on Wednesday, March 24, 2004, the U.S. Supreme Court will make the audiotape of oral argument immediately available for broadcast on C-SPAN: This isn't true yet, but I'm working on it.
Posted at 09:20 by Howard Bashman



"Judge asked to spare sniper; Muhammad scheduled to be sentenced today; 'Signifies phase of finality'; He faces death penalty; Malvo in court tomorrow": This article appears today in The Baltimore Sun. The Virginian-Pilot reports that "Sniper pair to be sentenced this week." CNN.com reports that "Sniper Muhammad faces sentencing; Judge expected to follow jury's recommendation of death." And The Associated Press reports that "Judge Considers D.C. Sniper Case Sentence." Today's sentencing hearing is scheduled to begin at 10 a.m.
Posted at 09:10 by Howard Bashman



"Ashcroft to Have Gall Bladder Surgery": The Associated Press provides this report.
Posted at 09:09 by Howard Bashman



"Kennedy questions Pryor appointment": This article appears today in The Birmingham News. The Montgomery Advertiser reports today that "Court may review Pryor appointment." And Lyle Denniston of The Boston Globe reports that "Judicial appointment under fire; Kennedy targets Bush's selection of Pryor in recess."
Posted at 07:30 by Howard Bashman



In news from the U.S. Supreme Court: In The New York Times, Linda Greenhouse reports that "Court Alters Rule on Statements of Unavailable Witnesses." In The Washington Post, Charles Lane reports that "Justices Rule Against Statements Made Out of Court." In The Los Angeles Times, David G. Savage reports that "Justices Curb Use of Out-of-Court Testimony; The Supreme Court says a defendant's right to confront accusers at trial cannot be whittled away because of a witness' unavailability." In The Boston Globe, Lyle Denniston reports that "Court refuses to hear Scouts' appeal; State can exclude group for ban on homosexuals." The Washington Times reports that "High court spurns appeal by Scouts." USA Today reports that "Justices let ruling against Scouts stand; Connecticut can exclude group from charity drive." And Reuters reports that "High Court Bars Certain Out-Of-Court Testimony."

In other coverage, The Des Moines Register reports that "Decision on judicial warning overturned." The Seattle Times reports that "Ruling in state case far-reaching." The Portland Press Herald reports that "U.S. ruling may lead to new trial in killing." The New Haven Register reports that "Area man cheers rebuff of Scouts' funding appeal." The Pittsburgh Post-Gazette reports that "Supreme Court refuses appeal by Scouts over charity funds." The Salt Lake Tribune reports that "Boy Scout decision disappoints LDS Church." And The Toledo Blade reports that "Court rejects Scouts' charity appeal; Refusal to hear case allows states to enforce anti-discrimination laws."
Posted at 07:00 by Howard Bashman



"Sykes faces questions from Democratic senator; Durbin cites her remarks in case against two abortion protesters; liberal advocacy group objects" This article appears today in The Milwaukee Journal Sentinel. President Bush has nominated Wisconsin Supreme Court Justice Diane S. Sykes to serve on the U.S. Court of Appeals for the Seventh Circuit. You can access Justice Sykes' resume at this link.
Posted at 06:46 by Howard Bashman



Monday, March 08, 2004
In Monday's newspapers: In The New York Times, Adam Liptak reports that "A Movie Hoax Finds Life as a Courtroom Reality." Neil A. Lewis reports that "Relatives of Prisoners at Guantanamo Bay Tell of Anger and Sadness at Detentions." In business news, "Looking to Add Bit of Glamour to Adelphia Trial" and "Guilty Verdicts Give Executives a New Focus: Risk of Prison." And letters to the editor appear under the headings "In Re Lawyers v. Syntax, Sense and Spelling" and "Gay Marriage: A Variety of Lenses."

The Washington Post contains a front page article headlined "Same-Sex Marriage Vaulted Into Spotlight."

USA Today contains a front page article headlined "Robin Hood is alive in court, say those seeking lawsuit limits." And in related coverage, "'Judicial hellholes'" and "How business sees states' courts."

The Boston Globe reports that "Church groups rally on gay marriage." And an editorial is entitled "The heart of the matter."

The Los Angeles Times reports that "Governor Leaves Them Guessing; Backers and opponents of gay marriage weigh his 'fine with me' remark on Leno show." And a letter to the editor appears under the heading "Three Strikes' Effect."

Finally for now, The Christian Science Monitor contains an article headlined "String of alleged terror cases in Northwest; Muslim fundraising efforts in the region draw federal indictments, and a national guardsman is in prison."
Posted at 23:11 by Howard Bashman



"Verdict on '3 strikes' law mixed after first 10 years; One study says it cut crime -- another condemns it as costly": Bob Egelko has this article in today's issue of The San Francisco Chronicle. Perhaps the law cuts crime and is costly? In any event, I have nothing to add to these earlier comments about the law.
Posted at 21:42 by Howard Bashman



"Supremes Will Bite Into Commercial Speech Case": The Recorder provides this interesting preview of a case to be argued tomorrow in the Supreme Court of California.
Posted at 21:40 by Howard Bashman



Today's Ten Commandments news: The Minneapolis Star Tribune reports that "Monumental battle develops in Duluth." You can take a close-up look at the Duluth monument at this link.

The Idaho Statesman reports today that "Group plans initiative on monument; Coalition’s goal: return it to park if city moves it."

Finally, The Mansfield News Journal reports that "Ousted judge to speak at AU about Commandments; Judge DeWeese joins Judge Moore in rally for right to display in courtroom."
Posted at 21:15 by Howard Bashman



Second Circuit nominee Peter W. Hall to receive Senate Judiciary Committee confirmation hearing this Wednesday afternoon: You can access the agenda for Wednesday afternoon's hearing at this link.
Posted at 19:55 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Court Asked to Review Wine Shipments"; "Ashcroft Remains in ICU, Cancels Schedule"; "Court Denies Attempt to Audit Megan's Law"; and "Peterson Trial Jury Selection Continues."
Posted at 19:50 by Howard Bashman



From this evening's broadcast of NPR's "All Things Considered": The final segment in Nina Totenberg's series of reports on Justice Harry A. Blackmun's papers is entitled "Blackmun Archives: Prickly Friendship on Court." Also on tonight's broadcast, "Fifty Years After 'Brown v. Board of Education'" and "Satire: Cheney Calls the Court."
Posted at 19:40 by Howard Bashman



Matt Drudge reports that Chief Justice Rehnquist "can't help but think about retirement": Details available here. (Thanks to Rick Hasen for the pointer.)
Posted at 19:27 by Howard Bashman



"Juvenile offenders could avoid execution; Florida may join a national trend and strike the death penalty in such cases": This article appears today in The Orlando Sentinel.
Posted at 17:43 by Howard Bashman



"Court's copyright ruling in spotlight; Implications likely include business related to Internet": The Toronto Globe and Mail contains this article today. You can access last Thursday's ruling of the Supreme Court of Canada at this link.
Posted at 17:40 by Howard Bashman



"Memo report jeopardizes prosecution": This article appears today in The Washington Times. Roll Call today has an article headlined "More Miranda Memos?" and also a related editorial cartoon. And, as I mentioned here earlier, the unredacted report is available online via "Calpundit."
Posted at 17:01 by Howard Bashman



"Chief Justice Pittman retiring from Mississippi Supreme Court": The Associated Press has this report.
Posted at 15:25 by Howard Bashman



U.S. Court of Appeals for the Federal Circuit tells the U.S. Court of Appeals for the Fifth Circuit that the Fifth Circuit's earlier decision in a case between the parties is void for lack of jurisdiction: Decisions like this one that the Federal Circuit issued today don't come along too often.
Posted at 15:23 by Howard Bashman



"Prosecutor May Have Killed Self; Lack of Evidence Fuels Theory in Luna's Death": This article appears today in The Washington Post.
Posted at 15:18 by Howard Bashman



"Kennedy Questions Bush Recess Appointment": Jesse J. Holland of The Associated Press provides this report.
Posted at 15:03 by Howard Bashman



"Calpundit" blog posts online unredacted report on Senate Judiciary Committee file-access matter: You can access the unredacted report via this link or directly here.
Posted at 14:47 by Howard Bashman



On today's broadcast of NPR's "Day to Day": Today's broadcast included segments entitled "Critics Slam Justice Scalia's Supreme Conflicts of Interest" and "10th Anniversary for California's 'Three Strikes' Law" (Real Player required).
Posted at 14:35 by Howard Bashman



Alleged enemy combatant Ali Saleh Kahlah al-Marri may prefer to litigate within the U.S. Court of Appeals for the Seventh Circuit, but the feeling isn't mutual: Today the U.S. Court of Appeals for the Seventh Circuit issued this opinion written by Circuit Judge Frank H. Easterbrook on behalf of a unanimous three-judge panel affirming the dismissal, for lack of venue, of a habeas corpus action that alleged enemy combatant Ali Saleh Kahlah al-Marri had filed in the U.S. District Court for the Central District of Illinois. As a result of today's ruling, al-Marri, who is being detained at the Naval Brig in Charleston, South Carolina, will need to pursue relief within the jurisdiction of the U.S. Court of Appeals for the Fourth Circuit. Judge Easterbrook's opinion expressly disagrees with the Second Circuit's ruling in Jose Padilla's case and also a ruling of the Ninth Circuit.

You can learn more about al-Marri here and here. And the document declaring al-Marri to be an enemy combatant can be viewed here.
Posted at 14:00 by Howard Bashman



"Court Rules on Defendant-Counsel Rights": Gina Holland of The Associated Press provides this report.
Posted at 12:55 by Howard Bashman



A difficult question of remedies: A decision that the U.S. Court of Appeals for the Eighth Circuit issued today presents nicely a difficult question of remedies in constitutional law litigation. The parents of schoolchildren who sought religious-based exemptions to Arkansas' immunization requirement challenged as too narrow a statute that afforded such an exemption only when based on the "religious tenets and practices of a recognized church or religious denomination" (emphasis added). Apparently the plaintiffs' request for exemptions failed because their religions were not sufficiently recognized.

The plaintiffs therefore sued, claiming that the exemption was too narrow. The federal trial court agreed that the exemption, as phrased, was unconstitutional, but instead of broadening the exemption, the trial court struck the exemption in its entirety, eliminating religious objection as a basis for opposing immunization. Without any religion-based exception, the trial court found the statute constitutional. Today, considering plaintiffs' appeal, the Eighth Circuit dismissed the case as both moot and unripe, because Arkansas had amended the statute to broaden the exception to provide that immunization will not be required "if the parents or legal guardian of that child object thereto on the grounds that immunization conflicts with the religious or philosophical beliefs of the parent or guardian." You can access today's ruling at this link.
Posted at 12:30 by Howard Bashman



"For snipers, it may be life and death; Malvo and Muhammad will be sentenced by judges this week for their roles in 2002 rampage": This article appears today in The Richmond Times-Dispatch.
Posted at 12:00 by Howard Bashman



"Interior Attorney Pushed Land Deal; U.S. agency's chief lawyer, now an appeals court nominee, urged turning over publicly owned parcel to firm." Henry Weinstein has this article in today's issue of The Los Angeles Times.
Posted at 11:08 by Howard Bashman



The Supreme Court of the United States issued two opinions in argued cases today:

1. Justice Ruth Bader Ginsburg announced the opinion for a unanimous Court in Iowa v. Tovar, No. 02-1541, and the judgment under review was reversed and remanded. You can access the oral argument transcript here.

2. Justice Antonin Scalia announced the opinion of the Court in Crawford v. Washington, No. 02-9410, and the judgment under review was reversed and remanded. The Chief Justice issued an opinion concurring in the judgment, in which Justice Sandra Day O'Connor joined, disagreeing with the Court's decision to overrule Ohio v. Roberts, 448 U.S. 56 (1980) (a decision, coincidentally, that Justice Harry A. Blackmun wrote; take that for releasing your papers so early!). You can access the oral argument transcript here.

Today's Order List can be accessed here. The Court did not grant review in any cases today, although the Court did call for the views of the Solicitor General in one case. In news relating to the Order List, Anne Gearan of The Associated Press reports that "Court Won't Hear Boy Scouts' Appeal." And James Vicini of Reuters reports that "Supreme Court Won't Revisit Boy Scouts' Ban on Gays."
Posted at 10:00 by Howard Bashman



"Blackmun Papers: Blackmun and Nixon." Nina Totenberg had this report (Real Player required) on today's broadcast of NPR's "Morning Edition."
Posted at 09:45 by Howard Bashman



It's "20 questions for the appellate judge" day at "How Appealing": Early this morning, I posted online here the March 2004 installment of "20 questions for the appellate judge," which features First Circuit Judge Bruce M. Selya.

April 2004's interviewee will be Circuit Judge Boyce F. Martin, Jr., whose term as Chief Judge of the U.S. Court of Appeals for the Sixth Circuit recently concluded. I am scheduled to submit my questions to Judge Martin one week from today. Anyone who wishes to suggest topics that I should raise, or specific questions that I should ask, may do so via email.
Posted at 09:43 by Howard Bashman



"Charges Are Flying In Suit Against Coast Governor; Arnold Accused of a Smear": This article by Josh Gerstein appears on the front page of The New York Sun today.
Posted at 09:36 by Howard Bashman



On the agenda: At 10 a.m. today, the Supreme Court of the United States will issue an Order List and one or more opinions in argued cases.
Posted at 09:30 by Howard Bashman



"9th Circuit Court Overturns New Iraq Constitution": "ScrappleFace" provides the details.
Posted at 09:25 by Howard Bashman



"Scalia Addressed Advocacy Group Before Key Decision": This article appears today in The Los Angeles Times. And Hartford Courant columnist Jim Shea has an essay entitled "Antonin Scalia: Justice is not for the birds."
Posted at 06:50 by Howard Bashman



"Report: Prosecutor May Have Committed Suicide." TheWBALChannel.com today provides this update.
Posted at 06:44 by Howard Bashman



"Kaczynski is denied papers; The Unabomber has no right to donate writings, a judge rules": This article appeared yesterday in The Sacramento Bee. And The Associated Press offers a report headlined "Judge: Unabomber Can't Donate Writings." You can access last Friday's ruling by District Judge Garland E. Burrell Jr. of the U.S. District Court for the Eastern District of California at this link.
Posted at 06:30 by Howard Bashman



20 Questions for Circuit Judge Bruce M. Selya of the U.S. Court of Appeals for the First Circuit: "How Appealing" is so very pleased that Circuit Judge Bruce M. Selya of the U.S. Court of Appeals for the First Circuit has agreed to participate in this Web log's recurring monthly feature, "20 Questions for the Appellate Judge."

Judge Selya was born in Providence, Rhode Island in 1934. He attended undergraduate and law school at Harvard. After law school, he served a two-year clerkship with Chief Judge Edward W. Day of the U.S. District Court for the District of Rhode Island. Following that clerkship, Selya engaged in the private practice of law in Providence from 1960 through 1982 and from 1965 through 1972 also served as a probate judge.

In 1982, President Ronald Reagan nominated Selya to fill a vacancy on the U.S. District Court for the District of Rhode Island. In September 1986, President Reagan nominated Judge Selya to fill one of the two seats on the U.S. Court of Appeals for the First Circuit that Congress added in 1984, when the number of active judges authorized to serve on that court increased from four to six. In less than one month's time, the U.S. Senate confirmed Judge Selya's nomination to serve on the First Circuit.

Judge Selya's chambers are located in Providence, Rhode Island, and the First Circuit has its headquarters in Boston, Massachusetts.

Questions appear below in italics, and Judge Selya’s responses follow in plain text.

1. It would be struthian to contend that your command of obscure words is anything other than Babe Ruthian. How and why did you decide that using obscure words in judicial opinions would be your shtick, and how is it that you developed such a command of words that are unknown to most native speakers of our language? Also, would you share one or more obscure words that even you view as too grandiloquent to use in an opinion of the court?

I don't believe there are obscure words -- just neglected ones. That said, two main things account for my love of language. First, I was subjected early in life to an education that included forced exposure to many years of Latin, which inculcated in me a love of language. Second, I spent twenty-two years being paid extravagant sums for work that included reading judicial opinions and often found myself struggling to stay awake. Upon my appointment to the bench, I made a commitment to myself that I would attempt to prove that sound jurisprudence and interesting prose are not mutually exclusive.

I am unapologetic about my word choices. Words are merely vehicles for conveying messages. There is no point in putting certain words off limits: if a word fits the need -- if it conveys the message -- I will use it. If it does not fit, I won't submit. I may be incurably lexiphanic -- but lexiphanicism for its own sake is not my style.

2. Although I am firmly in the camp that appreciates your efforts to keep judicial opinions interesting, there are others who criticize your use of obscure words because, in their view, judicial opinions should be open and accessible even to those readers who lack access to an unabridged dictionary. How do you respond to such criticism, and what negative reaction (if any) have you received to your use of obscure words from other judges and the lawyers and litigants in the cases in which you have written opinions?

I have received very little criticism on this issue from other judges, which is perhaps due in part to collegiality. I have received almost no criticism from lawyers or litigants, which may be due to the in terrorem effect of my office. There has, of course, been a raised eyebrow or two -- but in the end, I'm pretty much indifferent to whether other people appreciate my writing style. As I said, if a word fits and I use it properly, I'm comfortable. I might add that I tend to use unfamiliar words in contexts that make their meanings fairly clear -- certainly as clear as some of the stilted language that lawyers and judges have used for centuries.

3. If Bruce M. Selya were a lawyer briefing an appeal in the First Circuit instead of one of that court's judges, would you recommend that he curtail his usage of obscure words? Relatedly, is it of concern to you that passages from your opinions that contain unfamiliar words might be less likely to be quoted by appellate advocates and by other judges?

Hmmm . . . I tend to think that I am a lawyer, and that I have briefed and argued several appeals in the First Circuit and a number of other appellate venues. I used words that the uninitiated might term "obscure" throughout my career at the bar, and I believe that I had a pretty good track record before a variety of appellate courts. The proof of the pudding is in the mastication.

I doubt that I am less quoted by appellate advocates and other judges because of my word choices. However, if diminished citation is the price of liberty, so be it.

4. Back in March 1992, The New York Times published a short item that mentioned your penchant for obscure words. That same article also discussed criticism you had received for sometimes including in your opinions puns based on the names of the parties. Since that article appeared, I detect that you have refrained from including such puns based on parties' names in your opinions. Am I correct that this is a practice you have been avoiding, and if so why? Also, what reaction if any did you have to The New York Times article to which I am referring?

I found The New York Times article generally agreeable and more interesting than much of what usually appears in The Times. While I do have a penchant for puns, I also have an instinct for self-restraint. I do agree that basing puns on the names of the parties in a case is an undesirable practice and, having made the mistake once or twice, I will not make it again. Witness my ability to resist -- until now -- the impulse to refer to these questions as "judge-Bashing."

5. Recognizing that any attempt on my behalf to match your command of obscure words would be ultracrepidarian, allow me to move on to other subjects. What are your most favorite and least favorite aspects of being a federal appellate judge?

Without any question, my favorite aspect of my job is the variety of the intellectual challenges that I face. The continual flow of new questions and problems and the widely diverse mix of subject matters are rejuvenating; I often feel as if I am back in law school on a permanent basis. Hand in hand with that aspect of the job, I enjoy the opportunity to approach legal problems front-to-back. Judging is a profession that asks its practitioners to start with the problem and to work forward to reach the answer. That is directly contrary to the typical mode of work in the practice of law, where one starts with the client's desired outcome and works backwards from the result to uncover a feasible solution to the problem.

My least favorite aspect of the position is its essentially isolated nature. I have managed to overcome this, however, by involving myself in community affairs, teaching, and the like.

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

In answering a question of this genre, there is a temptation to reach for the stars -- and I have great admiration for Holmes, Brandeis, Jackson, and a pantheon of others. But the judge whom I most admired and who had the greatest influence on me was the judge for whom I clerked, Edward W. Day. Judge Day, by word and deed, taught me to respect the power of the federal court -- to use great authority humbly, circumspectly, and with utmost care. He also taught me the importance of subrogating personal preferences to the rule of law. He valued hard work, intellectual integrity, and courtesy. He believed that his court was a significant institution and that everything that he did -- from deciding cases to the way in which he comported himself -- reflected on it. It was my experience with Judge Day that first instilled in me an interest in becoming a federal judge one day -- and I am a better judge because of my efforts, sometimes subconscious, to follow in his footprints. Ed Day was a man who combined uncommon wisdom with common decency. Can we ever hope for more in a judge?

7. The First Circuit is authorized only to have six active judges. The next smallest U.S. Courts of Appeals are authorized to have eleven active judges. And the Ninth Circuit, of course, is currently authorized to have 28 active judges and might soon be expanded to a total of 35 authorized active judges. What are the advantages and disadvantages of working on the federal appellate court with the smallest number of authorized active judges? How might your days at work be different if you served on a twenty-eight judge federal appellate court? And how do you respond to those who say that the best way to remedy the problems associated with the Ninth Circuit's large size is to reorder the size and composition of all the federal appellate courts, a remedy that would increase the number of judges serving on, and the geographical boundaries of, the First Circuit?

The advantages of working on a small court are virtually limitless. It is much easier to ensure that the court speaks with a consistent voice, so that lawyers and litigants do not receive mixed signals. I might add that, in a small circuit, judges necessarily get to know each others' thought processes better, and this tends to make it easier to reach consensus.

Never having been a member of a larger court, it is difficult to say how my days would be different. I suspect the best answer is that I really don't know and that I'm happy there is no realistic possibility that I'll ever have to find out.

As to the third subpart of this question -- these 20 questions are more like 40, but who's counting? -- I join in part and dissent in part. I do agree, from my outside coign of vantage, that the Ninth Circuit has grown so large as to be virtually unmanageable. I would certainly approve of a reduction in its size if that could be done sensibly, but I would not support a plan to re-engineer the boundaries of all of the federal circuits to achieve that end. Most circuits constitute quite efficient operating units, and I see no reason to throw the baby out with the bath water.

8. Given that a reorganization of the entire federal appellate court system is unlikely to occur, please provide your view on whether the Ninth Circuit 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?

Do I sense a redundancy? In all events, it makes sense to divide the Ninth Circuit into two smaller circuits, honoring state boundaries -- the same general approach that was used when the Fifth Circuit was split. Each of these new circuits would be about the same size as the Fifth. And although this is probably the outer limit of size, it seems to work reasonably well. The proposals to divide California and put the pieces into separate circuits offends my sense of orderliness. Moreover, it would be a complete departure from accepted practice. It would be difficult to convince me that this is a wise -- or even tenable -- idea.

Exactly how the two new circuits should be configured is a matter beyond my pay grade. Perhaps this question is best addressed to those judges who sit on the Ninth Circuit.

9. How did you come to President Ronald Reagan's attention as a potential nominee to serve on the U.S. District Court for the District of Rhode Island and again as a potential nominee to serve on the First Circuit? Also, how is being an appellate judge better and/or worse than being a trial judge, and what if anything that you learned during your service as a probate judge has influenced your service as a federal trial and appellate judge?

I would like to tell you that my nomination was due solely to my brilliance, but the truth is that it came about on the recommendation of Senator John H. Chafee. I had been a practicing attorney for 22 years at the time I was appointed to the bench and was involved in both the community and the politics of the state of Rhode Island. I had the great good fortune to have known Senator Chafee for many years. I numbered him among my closest friends and benefitted greatly from his good opinion of me.

Being a judge on a district court is quite different from judging on a court of appeals. Appellate judging is more reflective and, in some respects, more intellectually challenging. It is much more conducive to the written exposition of ideas. A trial court is much faster moving and more interactive. Being a trial judge also includes the luxury -- and the concomitant responsibility -- of making decisions on your own, without the need to persuade colleagues to adopt your view.

In my mind, the differences are similar to the differences between ping-pong and pool. In ping-pong, the ball keeps coming back across the table, and one strikes it almost reflexively. In pool, one has the time to plan each shot carefully. I happen to enjoy both games. I do want to add, however, that the two jobs complement one another: my service on a district court has made me a more proficient appellate judge, and service on an appellate court enhances the perspective of any trial judge.

I have never had any sort of job or position from which I have not learned something of value. That includes my position as a probate judge (a part-time post that involved very little heavy lifting). One thing I learned from that experience is that I prefer live legal problems to dead ones.

10. 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 1986. Indeed, the U.S. Senate confirmed you quite rapidly to both the district court and the court of appeals. 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 am terribly troubled by the way in which the confirmation process has deteriorated in recent years. I think that trend -- if unchecked -- will make it more difficult to attract the best and the brightest to the federal bench. People simply do not want to expose themselves to an escalating level of hostile scrutiny and gratuitous political attack. These developments will inevitably devalue the federal judiciary in the public's eyes and detract from the respect in which the federal judiciary historically has been held.

I wish I knew what to do about this sorry situation. Regrettably, however, this is only one manifestation of a larger problem: the polarization that exists in Washington is inimical in many ways to the public interest. We have reached a state that Jimmy Carter might have termed a malaise.

I am an equal opportunity blame-caster. The right and left have contributed in equal parts to this malaise. Both sides of the aisle have become so convinced of the virtue of their own positions and so deeply suspicious of contrary views that they look for the worst each time a nominee is sent to the Hill.

11. What role should an appellate judge’s personal and political ideology play in deciding cases, and when if ever is it appropriate for an appellate judge to decide how to rule based solely on his or her personal preference? Also, if some federal appellate judges are going to decide cases based largely on personal preference, can U.S. Senators be faulted for assuming that every appellate court nominee might adopt that approach if confirmed?

As an abstract matter, personal or political ideology ought not to play a part in judicial decisionmaking. As a practical matter, however, judicial decisionmaking is much more art than science, and every judge is a product of his or her experience. Inevitably, one's belief structure and value structure will affect how one sees the law. That isn't necessarily a bad thing: the alternative is that only those whose sum experiential and philosophical total is zero will be nominated to the federal bench. That would be dreadful.

I don't accept the premise that federal appellate judges decide cases based largely on personal preference. In my experience, the opposite is true. Most people rise to the challenge upon appointment and do not make decisions based solely on ideology. A very good example of this is Justice Hugo Black, who was strongly against civil rights while in the Senate, but then became very much of a liberal upon his nomination to the Court. When one's role changes, one recognizes that his responsibility is no longer to advocate his personal preferences, but, rather, to uphold and honor the rule of law.

12. Seventh Circuit Judge Richard A. Posner has described his own judicial philosophy as "pragmatic." How would you describe your judicial philosophy, and which judicial opinions that you have written stand out as your favorites?

I have become accustomed over the years to my inability to improve upon anything Richard says. I see judges as problem-solvers who must act within a set of rules and work to clarify that set of rules. I think that pragmatic is an apt way to describe that philosophy.

As to the second part of your question, my opinions are akin to my children. I like them all -- and hope that, in my waning years, they will support me (or, at least, support my reputation).

13. 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 brand 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?

I have no particular set of specifications for law clerks. My hiring decisions tend to be instinctive, ad hoc, and (fortunately) have brought me a steady stream of wonderful law clerks. They have contributed significantly to any success that I have had during my years on the bench. One thing is very clear and graphic; they keep me safe from passing traffic.

The new hiring plan is a huge improvement because it gives the judge more relevant information: two full years of law school experience on which to base hiring decisions. It's a step in the right direction.

14. 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. Not too long ago, the First Circuit began to allow lawyers to cite to its unpublished opinions. Where do you stand on the question of allowing citation to unpublished opinions? Has the First Circuit's current practice caused you to spend more time preparing unpublished opinions, and has it compelled your court to treat unpublished opinions as precedent? Finally, 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 First Circuit now permits citation to unpublished opinions, but still regards those opinions as having no precedential value. I have not noticed any significant difference in the amount of time spent preparing unpublished opinions since we changed our local rule. I am happy with the rule as it stands. In my view, reliance on unpublished opinions is highly problematic. Attorneys who cite such opinions know full well that they lack precedential force. Thus, a wise attorney will only cite such an opinion if there is no directly applicable precedent and if the unpublished opinion is extremely valuable to his case. I generally give no weight to unpublished opinions unless I find their reasoning persuasive.

I am a firm believer in the ability of courts to designate rulings as non-precedential. Given the volume of judicial business and the number of cases in which the issues and decision are of no import except to the parties, declining to publish an opinion often will be the best practice. I will not dwell on this subject other then to note that those who thirst for my insights may slake that thirst by reading what I previously have written on the subject. See Bruce M. Selya, Publish and Perish: The Fate of the Federal Appeals Judge in the Information Age, 55 Ohio St. L.J. 405 (1994). It is well-known that I am a bit of a curmudgeon, so it should come as no surprise that my views on the subject have become more entrenched with the passage of time.

15. What three suggestions would you offer to attorneys concerning how to improve the quality of their appellate briefs?

I hate to belabor the obvious, but here goes.

1) A lawyer without credibility is like a ship without a rudder: don't misrepresent the holdings of cases; don't indulge in half-truths about the facts; and don't leave the bad news to be used as a bludgeon in your opponent's brief.

2) Shorter is better (or, if you prefer, less is more). When the rules provide a page limit, it should not be considered a sign of weakness to conclude your effort without equaling that limit. Avoid string citations that do nothing more than take up space.

3) Manner of presentation counts. The brief is the court's first introduction to your case, and first impressions matter. Inscrutable cite forms, grammatical errors, and copious footnotes can be detrimental to your client's case.

16. Similarly, with respect to oral argument, what suggestions can you offer that might help a good appellate advocate become even better?

The question is tricky because it envisions a good appellate attorney -- and a good appellate attorney already knows the things I might mention. Most of them are variations on the points mentioned anent the briefs. Credibility is the advocate's stock and trade. She should neither exaggerate the strengths of her case, nor attempt to glide past its weaknesses. She should not feel compelled to use all the time allotted for oral argument. Most important, she should not fight the judges' questions; they are her window into the court's thought processes. A judge's question is sometimes a life preserver rather than a hand grenade.

17. I understand that your eyesight is particularly poor, and that you have difficulty reading text unless it is significantly magnified. What can you tell us about your ocular condition, is it likely to get better or worse over time, and how if at all does it impact your daily work as a federal appellate judge?

I have a number of eye problems, which have left me with no conventional reading vision and some limitations on my distance vision. By employing a variety of coping mechanisms -- enlarged text and video magnification are two -- I can perform all the duties essential to my work. My disability is something I have come to terms with but it sometimes puts unusual demands on my staff, my clerks, and my colleagues, which I regret but find unavoidable. My ocular condition is progressive, although the rate of degradation is unpredictable. Barring some scientific miracle, my vision is not likely to improve. I hope that as my vision ebbs, my capacity to cope with it will grow.

18. You are currently the only U.S. Court of Appeals judge serving on the Judicial Panel on Multidistrict Litigation. What sort of work, and what demands on your time, does that job assignment entail? And how significant would the additional strain on the federal court system be if Congress were to make it easier for federal courts to possess subject-matter jurisdiction over large class action cases?

The panel sits at various places in the country, on average six to eight times a year. We dispose of forty to fifty dockets in a typical sitting. That assignment places significant demands on my time (witness my being one week late with these answers) but it is important and interesting work. I am grateful to Chief Justice Rehnquist for asking me to undertake it.

The MDL process has been an enormous boon to the federal courts' ability to handle and adjudicate complex litigation. I favor the legislation currently before Congress, which would augment the federal courts' jurisdiction over certain large class action cases. That legislation, plus the passage of the bill that would effectively overrule the Supreme Court's decision in Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998), would enhance the efficiency and effectiveness of the MDL process.

19. Is the salary now paid to federal appellate judges too low? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

Surely, you jest. There is no question that federal judges are grossly underpaid. The proper salary should be to some extent commensurate with the market, but I don't think that private practice provides a relevant comparator. As a public servant, it would be unrealistic to expect to earn as much as a private-practice attorney. Academia, however, has many more similarities to judicial work. Accordingly, I favor the proposal made by many, most notably Justice Breyer, to raise salaries to a level roughly commensurate with, or even slightly below, those of deans or senior law professors at major law schools.

20. To provide an eschatol of sorts, after which we need go no further, please describe what you do for enjoyment and/or relaxation in your spare time.

I don't have much spare time, and my ocular problems have conspired to deprive me of many of my favorite pursuits, such as leisure reading, tennis and the like. I do spend time with my wife, children, and grandchildren, play an occasional round of bad golf, and dabble in poetry. So here goes: I have the feeling that "How Appealing" is through with me -- and I am free.
Posted at 00:00 by Howard Bashman



Sunday, March 07, 2004
Elsewhere in Sunday's newspapers: The Los Angeles Times reports that "Terrorism Trial Triumph Turns Into an Embarrassment." In other news, "Marriage Is Paramount, Gays Agree; Couples who forced the legalization issue in Massachusetts say they want the rights and benefits conferred only through wedlock." An op-ed by Vincent Schiraldi and Geri Silva is entitled "Three Strikes: Law That Fails on All Counts." And letters to the editor appear under the heading "Which Laws Define the Basis for Same-Sex Marriage?"

The Washington Times reports that "Boy Scouts fight back." In other news, "Molester castrated before parole." And an op-ed by Walter Williams is entitled "Discrimination redefined."

The Boston Globe reports that "GOP, Democrats banking on Patriot Act as key issue." In same-sex marriage-related news, "Gay rights issues seen fading by fall"; "Clerks ask ruling on marriage law; 1913 rule may affect nuptials for visitors"; and "Children of same-sex couples tell their story." In other news, "Illinois eyes law to protect breast-feeding." Dave Denison has an essay entitled "Judging the judges: Critics of the SJC's gay marriage ruling are crying 'judicial activism'; But legal scholars say it's not that simple." Jeff Jacoby has an op-ed entitled "Gay marriage isn't civil rights." And columnist Eileen McNamara has an essay entitled "Leadership in default."
Posted at 23:10 by Howard Bashman



"Scalia Ethics Remain in Question": Richard A. Serrano and David G. Savage will have this article in Monday's issue of The Los Angeles Times. The article begins, "As the Supreme Court was weighing a landmark gay rights case last year, Justice Antonin Scalia gave a keynote dinner speech in Philadelphia for an advocacy group waging a legal battle against gay rights."
Posted at 22:50 by Howard Bashman



Australians denounce appellate court ruling that vacated gang rape conviction: Monday's edition of The Sydney Morning Herald contains an essay by columnist Paul Sheehan entitled "The contempt is mutual, your honour; Public faith in the legal system is quickly weakened by decisions like this." In earlier coverage, The Daily Telegraph reported on Friday that "Gang rape victim must bare her soul again." The Morning Herald reported on Friday that "Tears as rape retrial ordered." The Australian Associated Press reported that "Gang rape conviction overturned." The Australian Broadcasting Corporation reported that "NSW Govt silent on retrial decision." And columnist Richard Ackland on Friday had an essay entitled "New rape trial is on a slim premise." You can access last Thursday's ruling of the New South Wales Court of Criminal Appeal at this link.
Posted at 22:40 by Howard Bashman



"Litigation firm carefully limits caseload, staff; Southfield legal team Young & Susser credits success to nongrowth": The Detroit News today contains this article that sings the praises of small litigation boutiques.
Posted at 22:30 by Howard Bashman



"Manatee prayer lawsuit costs rise": This article appears today in The Bradenton Herald. If the lawsuit proves unsuccessful, apparently some other method will need to be found to "Save the Manatee."
Posted at 22:27 by Howard Bashman



Op-eds published today in The Dallas Morning News: U.S. Senator John Cornyn (R-TX) had an op-ed entitled "Judges pose threat to traditional marriage laws." And Philip Jenkins had an op-ed entitled "Now, think about the age of consent."
Posted at 22:25 by Howard Bashman



"Forcible medication for inmates, long an issue, still is divisive; A Richmond lawyer says some capital defense attorneys think it's wrong to force medication on a defendant or otherwise facilitate the death penalty process." The Roanoke Times today contains this report.
Posted at 22:21 by Howard Bashman



"GOP leaders oppose high court incumbent": This article appears today in The Fort Worth Star-Telegram.
Posted at 22:16 by Howard Bashman



Three-strikes law celebrates tenth anniversary in California: The San Diego Union-Tribune today reports that "10 years later, '3 strikes' is still in dispute; Opponents pushing initiative to lessen severity of 1994 law." My summaries of last year's U.S. Supreme Court rulings (here and here) that upheld the constitutionality of California's three-strikes law can be accessed at this link.
Posted at 22:00 by Howard Bashman



"Judge lauds Western-style justice": The Associated Press provides this report from Wyoming.
Posted at 20:56 by Howard Bashman



"An assault on sacred lands, tribes": The Billings Gazette today contains an op-ed by Tex G. Hall, chairman of the Mandan-Hidatsa-Arikara Tribe of Fort Berthold, N.D. and president of the National Congress of American Indians, that begins, "President Bush has nominated William G. Myers for a lifetime appointment to the Ninth Circuit Court of Appeals, which hears public lands cases from the nine Western states that contain the majority of our nation's public land. For Native Americans, Myers is the worst possible choice."
Posted at 20:50 by Howard Bashman



"A portrait of the accused: In a rare interview, the family of Scott Peterson sheds light on the life and times of the 'perfect' son." This article appears today in The San Francisco Chronicle.
Posted at 20:45 by Howard Bashman



"Justice Blackmun Papers: The law school years." "The American Constitution Society Web Log" offers this report.
Posted at 19:55 by Howard Bashman



Ten Commandments news: From Georgia, The Ledger-Enquirer reports that "Advocates push next best thing; Coffee group hangs replica of religious text across from county courthouse." And The Associated Press reports that "West Georgia residents fund display across from courthouse."

From Tennessee, The Tennessean today reports that "Ten Commandments signs go up at Music Row's nude statuary."

From Alabama, The Mobile Register today reports that "Retired Baldwin judge finds himself back in spotlight; Harry Wilters is one of two Baldwin judges hearing Roy Moore appeal."

From Pennsylvania, The York Daily Record reported yesterday that "For both sides, this debate has become a monumental fight." The Evening Sun reported that "Hole dug to determine cost of moving monument; Borough workers checked to see how far into ground base of monument is" and "Monument proponents can now show their support; Proceeds from sale of pins will be used to defray legal costs from expected court battle." And in somewhat related news, The York Dispatch reported Friday that "ACLU sees no problem with graduation; Moving Spring Grove commencement to church likely wouldn't violate Constitution."

From Wyoming, The Caspar Star-Tribune reported yesterday that "Council adds to historic plaza cost."

From Minnesota, The Budgeteer News reported Friday that "Ten Commandments lawsuit could become historic preservation issue."

And finally for now, WorldNetDaily on Friday published an essay by Richard Wilkins entitled "Limiting jurisdiction, limiting nothing."
Posted at 18:31 by Howard Bashman



In local news: Today's edition of The Williamson County (Tenn.) Review Appeal reports that "Franklin man recalls uncle, Justice Blackmun, for kindness, hard work."
Posted at 17:40 by Howard Bashman



And speaking of constitutional amendments, Republicans in the U.S. Congress prepare for the constitutional amendment trifecta: On Wednesday, March 10, 2004, the Senate Judiciary Committee will hold a hearing on a constitutional amendment to ban flag burning. Are people still burning flags? Who knew? In any event, together with constitutional amendments to prohibit same-sex marriages and to allow "under God" to remain in the Pledge of Allegiance, the flag burning constitutional amendment would allow for a conservative constitutional amendment trifecta.
Posted at 17:05 by Howard Bashman



Next on the agenda -- a constitutional amendment to protect the rights of gatherers: The Pittsburgh Post-Gazette today reports that "Bill would protect hunters' rights; Legislator hopes to amend constitution."
Posted at 16:58 by Howard Bashman



"Blackmun Archives: Parsing the Court's Language." Nina Totenberg had this report (Real Player required) on today's broadcast of NPR's "Weekend Edition - Sunday."
Posted at 11:30 by Howard Bashman



In Sunday's newspapers: In The Washington Post, Charles Lane reports that "Papers Underline Issue of Controlling Court; Despite Republicans' Appointments, Justices Did Not Turn Decisively to the Right." An article reports that "Martha Stewart's Appeal Won't Be Easy; Lawyers May Claim Judge Wouldn't Let Them Mount Their Best Defense." In other news, "Sentences Not End Of Sniper Cases; No Consensus On 2nd Trials." An article reports that "Ashcroft Funds Under Scrutiny; Money Raised for Fine, Legal Costs Related to Senate Campaign." In other news, "U.S. Legal Team to Aid In Any Trial of Hussein; Group to Assist Iraqis in Building Case." In news from New York, "Juror Chappell Hartridge, Man of the Martha Moment." And U.S. Senator Hillary Rodham Clinton (D-NY) mentioned the Scalia-Cheney recusal controversy in her remarks delivered at last night's Gridiron Dinner, this article reports.

The New York Times reports that "Stewart's Celebrity Created Magnet for Scrutiny." In related coverage, "Jurors Discuss the Verdict Against Stewart" and "There's a Reason Your Mother Told You Not to Lie." An article reports that "Businesses Near Courthouse Find Their Lifeblood in It." In same-sex marriage-related news, "Same-Sex Marriage Blurs Lines on Both Sides of the Political Aisle" and "Unitarian Ministers Defy Authorities by Conducting Same-Sex Weddings in New Paltz." Relatedly, The New York Times Magazine contains an essay by Jonathan Rauch entitled "Power of Two," and a lengthy editorial is entitled "The Road to Gay Marriage." The Week in Review section contains articles headlined "At a Shrine of American Documents, Pathos, Poetry and Blackmun's 'Rosebud'" and "A Former Justice With the Law, and God, as His Guide." An article reports that "U.S. Team Is Sent to Develop Case in Hussein Trial." In news from New Jersey, "For Jayson Williams, a Harsher Limelight." And a letter to the editor appears under the heading "The Role of Judges."
Posted at 10:15 by Howard Bashman



Saturday, March 06, 2004
In Saturday's newspapers: The New York Times reports that "Administration Sets Forth a Limited View on Privacy." In other news, "Ashcroft in Hospital With Pancreatic Ailment." In news from the Martha Stewart trial, "Stewart Found Guilty on All Counts; She Plans to Appeal"; "Defense Gambled, and Lost, With a Minimal Presentation"; "Company Already Feeling Impact of Stewart Conviction"; "A Fate Widely Seen as Self-Inflicted"; "Another Wall St. Case of Conflict Between Doing Right by a Client and Doing Right"; "Investors Lose by Guessing Incorrectly on Stewart"; and "One if by Land, 2 if by Sea (or Vice Versa?)" An article reports that "Law Firm Settles in a Tax Shelter Case." In local news, "Bloomberg Said to Want State to Legalize Same-Sex Marriages"; "Rowland Panel Advised on Impeachment Standards"; and "To Get a Bit More Off the Top, City Ends Free Jail Haircuts." Editorials are entitled "Courtroom Tales of Martha's Lies . . ."; ". . . and of Epic Frauds"; and "Missing Witnesses." And letters to the editor appear under the heading "Justice Blackmun, Remembered."

The Washington Post reports that "Justice Dept. Bid for Abortion Files Rejected." In other news, "Ashcroft Is Admitted to GWU Hospital." In news from the Martha Stewart trial, "Stewart Guilty on All Charges; Businesswoman Conspired With Broker, Jury Says"; "Verdict's Message: Tell Corporate Probers the Truth"; "Stewart's Phone-Log Change Swayed Jury; Testimony by Friend About Waksal Tip Also Influenced Verdict, Jurors Say"; "Bacanovic Tried to Be More Than a Broker; Co-Defendant Cultivated New York's Elite"; "Humble Pie for a Diva of Domesticity; Crash of High-Flying Martha Stewart Made Perfect Public Theater"; and "Gloating Over the Newest Martha Line: Designer Rap Sheets." In other news, "Leak Investigators to Get Phone Log." In local news, "Judge Implored to Spare Muhammad's Life"; "Fredericksburg City Leaders Win Lawsuit on E-Mail"; "Gay Union Legislation Defeated In Maryland; House Bills Would Have Banned Legal Recognition"; and "House, Senate Part Ways on Court Seat; Alexandria Jurist Testifies Amid Dispute Over How to Fill Judgeships." An editorial is entitled "'Anything Doesn't Go.'" And a letter to the editor appears under the heading "Blind to Ethics Problems."

The Washington Times reports that "Ashcroft hospitalized in intensive care." In other news, "Court records show Limbaugh was singled out." Terence P. Jeffrey has an op-ed entitled "Act of tyranny." And Michelle Malkin has an op-ed entitled "The new face of lawlessness."

The Boston Globe reports that "Redistricting suit to cost $3m in fees." In news from the Martha Stewart trial, "Martha Stewart guilty on 4 counts; Homemaking mogul, ex-broker convicted of covering up stock sale"; "A difficult road ahead; Verdict puts brand name in jeopardy"; "On street, sympathy, hostility"; and "SEC still plans to pursue charges; Pai now will face civil complaints of insider trading." And in local news, "Church suit accuses an insurer of fraud" and "Inmate's release sought; new DNA evidence cited."

The Los Angeles Times reports that "Court Rejects U.S. Bid to Subpoena Records of Planned Parenthood; A federal judge says turning over the information would violate patients' privacy; Two of the six clinics are in L.A. and San Diego." In other news, "Gallstone Ailment Hospitalizes Ashcroft." In news from the Martha Stewart trial, "Martha Stewart Found Guilty; Prison Likely; She is the first major figure convicted at trial in a wave of financial scandals; A juror calls the verdict 'a victory for the little guys'"; "A Coverup Again Proves Worse Than the Initial Act; Some say if the symbol of gracious living had told the truth, she'd have been set free"; "An Icon's Infamy Won't Be Fleeting"; and "Verdict Hits Her Company; Its share price falls 23%; The founder's unusually close connection to the firm spurs questions about her empire's future." An article reports on "Where to Draw Line on Paying Damages in Iraq; U.S. military agrees with critics that the system is confused and arbitrary, but cites the obstacles faced in moving from combat to occupation." In other news, "UC Berkeley, FedEx to Split Fulbright Costs." Justice Ruth Bader Ginsburg is mentioned in an article headlined "New Book Explores the Meaning of Being Jewish; The parents of slain journalist Daniel Pearl have put together a series of reflections by prominent Jews on their religious heritage." And letters to the editor appear under the heading "A Wedge, a Word, a Right?"
Posted at 22:30 by Howard Bashman



"Battle over same-sex marriage: Justices don't act immediately on S.F. case." This article appears today in The San Francisco Chronicle.
Posted at 19:33 by Howard Bashman



Cloak and .... In news from Canada, The Montreal Gazette today reports that "Family to fight kirpan ruling; Dagger barred; Father of Sikh student says he'll take issue to Supreme Court." CBC News reports that "No kirpans in school, Quebec court rules." And Canadian Press reports that "Dagger-in-school case headed to high court."

More information on the Kirpan is available here, here, and here.
Posted at 19:25 by Howard Bashman



"Drawing lines on judicial speech": This article appears today in The Minneapolis Star Tribune.
Posted at 19:22 by Howard Bashman



"August trial set in judicial probe": The Sun Herald today contains this report. And The Clarion-Ledger today reports that "Justice's lawyers, DA face off."
Posted at 19:20 by Howard Bashman



"Court postpones execution of man who killed officer; State will appeal judge's decision": This article appears today in The Sun News of Myrtle Beach, South Carolina.
Posted at 19:17 by Howard Bashman



"Judge denies abortion-record release; Justice Department sought documents in case over ban on a late-term procedure." Claire Cooper, legal affairs writer of The Sacramento Bee, today has this report.
Posted at 19:14 by Howard Bashman



"Banned: pest who can't win a case." This article appears in Sunday's issue of The Sydney Morning Herald.
Posted at 19:11 by Howard Bashman



"Controversial 'parental notification' abortion issue could go to Florida voters this fall": This article appears today in The South Florida Sun-Sentinel.
Posted at 19:10 by Howard Bashman



"Judicial panel to try judge for plagiarism; Circuit Judge Gregory Holder is accused of copying other work in a paper he wrote to get an Air Force promotion." The Associated Press provides this report from Tampa, Florida.
Posted at 19:07 by Howard Bashman



"Judges say monument lawsuit lacks merit": This article appears today in The Birmingham News.
Posted at 19:05 by Howard Bashman



"Yale Vote Raises Gay Issue": The Hartford Courant today reports here that "The judge who took the lead role in striking down the law banning gay marriage in Massachusetts is one of three people being considered for an open seat on Yale University's governing board, the Yale Corporation."
Posted at 19:02 by Howard Bashman



"Experts say slurs have no appeal; A judge's racist online posts likely won't force review of cases he tried": The Richmond Times-Dispatch today contains this report.
Posted at 19:00 by Howard Bashman



"Convictions Stand In Cross Burning; Va. High Court Says Case Relied On Proper Portion of State Statute": This article appears today in The Washington Post. In other coverage, The Richmond Times-Dispatch reports that "Va. court rules on intent of cross-burnings." The Virginian-Pilot reports that "Va. Supreme Court upholds cross burning convictions." And The Roanoke Times reports that "High court clarifies law on burning crosses in Va.; The ruling upholds the convictions of two men who burned a cross in a black neighbor's yard." I first linked to yesterday's ruling of the Supreme Court of Virginia in a post you can access here.
Posted at 18:58 by Howard Bashman



"Canton woman wins Web free speech case; She used a nursery's name for site warning potential customers": The Detroit Free Press contains this article today. I first linked here to yesterday's ruling of the U.S. Court of Appeals for the Sixth Circuit.
Posted at 14:15 by Howard Bashman



"Proposal revives motto debate; Schools would post messages about God": This article appears today in The Cincinnati Enquirer. I recounted the recent court battle over the lawfulness of Ohio's state motto -- "With God, All Things Are Possible" -- in the September 2003 installment of my monthly appellate column, headlined "Take two tablets: Courts struggle over where to draw the line between Church and State."
Posted at 14:05 by Howard Bashman



"Q&A: Rehnquist's Book on a Disputed Election (No, Not That One)." This interview with Chief Justice William H. Rehnquist appears today in The New York Times. Perhaps someday a U.S. Supreme Court Justice will take part in this Web log's monthly "20 questions for the appellate judge" feature.
Posted at 12:20 by Howard Bashman



"Blackmun Papers Show Evolution of Death-Penalty Stance": NPR's Nina Totenberg had this report (Real Player required) on today's broadcast of "Weekend Edition - Saturday."
Posted at 12:15 by Howard Bashman



"Judge rejects U.S. demand for medical records; Ruling applies only to S.F. General and Planned Parenthood": Bob Egelko has this article today in The San Francisco Chronicle. You can access yesterday's ruling by District Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California at this link.
Posted at 10:30 by Howard Bashman



The PBS program "NewsHour with Jim Lehrer" covers The Blackmun Papers: Yesterday evening's NewsHour broadcast featured a segment entitled "Blackmun Tapes and Papers Lead Scholars to Debate His Legacy." You can read the transcript here and listen to the audio (Real Audio required) here. Also broadcast yesterday was this additional backgrounder on the subject (Real Player required). And you can now watch the video of Thursday's NewsHour broadcast via a link found here (the audio only link, by contrast, isn't working for me).

New York Times reporter Linda Greenhouse discussed the Blackmun papers on yesterday's broadcast of the PBS program "Washington Week." You can access online the video of this segment via a link found toward the bottom of this page.
Posted at 10:01 by Howard Bashman



"Supreme Court Designed to Help Americans Make Democracy Work, Breyer Says": Justice Stephen G. Breyer visited the University of Virginia School of Law on Saturday, February 28, 2004. The law school provides this coverage, and you can watch a video of Justice Breyer's address at this link (Windows Media Player required). The speech begins with a very funny account of what it's been like being the junior Justice for ten years, a task that apparently involves delivering coffee to Justice Antonin Scalia during conference.

Justice Breyer's speech was the keynote address at the The Fifth Annual Conference on Public Service and the Law. Also during that conference, Slate Senior Editor Dahlia Lithwick moderated a panel discussing "the politicization of the process for confirming federal judicial nominees." You can read coverage of that panel here.
Posted at 08:34 by Howard Bashman



No ducks were harmed during the filming of this visit: The Hattiesburg (Miss.) American reported yesterday that "Justice Scalia to visit Presbyterian Christian."
Posted at 08:30 by Howard Bashman



C-SPAN makes available online two hours and forty-five minutes of the "Justice Harry Blackmun Oral History": I watched some of this on television last night, and the parts that I saw were quite fascinating. Then again, what would you expect from the law geek who has brought you "20 question for the appellate judge." To view this significant chunk of the oral history project, simply click here (Real Player required).

C-SPAN also aired yesterday a half-hour interview (Real Player required) with Linda Greenhouse, who covers the U.S. Supreme Court for The New York Times and who was one of only two journalists provided advance access to Justice Harry A. Blackmun's papers.

Finally, yesterday Dahlia Lithwick had a jurisprudence column entitled "Justice Burps: Shock and awe over the Blackmun papers" online at Slate.
Posted at 08:11 by Howard Bashman



Friday, March 05, 2004
"Blackmun Papers Detail Road to 'Roe'": Nina Totenberg has this report (Real Player required) on tonight's broadcast of NPR's "All Things Considered."
Posted at 18:25 by Howard Bashman



"20 questions for the appellate judge" reminder: My "20 questions" interview with First Circuit Judge Bruce M. Selya will be posted online here at midnight on the morning of Monday, March 8, 2004. It is recommended that you have an unabridged dictionary handy, just in case.
Posted at 17:15 by Howard Bashman



Martha Stewart says "See you in the Second Circuit": You can access at this link her statement issued today.
Posted at 17:14 by Howard Bashman



"Va. High Court Rules on Cross-Burning Law": The Associated Press reports here that "The Virginia Supreme Court on Friday unanimously struck down a provision in the state's cross-burning ban that says the act alone proves an intent to intimidate." You can access today's ruling by the Supreme Court of Virginia at this link.
Posted at 17:03 by Howard Bashman



Martha Stewart guilty on all counts: Guilty of conspiracy, making false statements, and obstruction of justice, CBS News is reporting. Sentencing has been scheduled for June 17, 2004, and the statutory maximum sentence on each count is five years' imprisonment. Under the Federal Sentencing Guidelines, it is not likely that Stewart would qualify for the maximum sentence.
Posted at 15:03 by Howard Bashman



Verdict reached in Martha Stewart trial: Stay tuned for details.
Posted at 14:33 by Howard Bashman



Senate Judiciary Committee "computer report" posted online in two parts: You can access part one here and part two here. And, according to this statement, the Judiciary Committee accidentally released the unredacted version of that report to the press yesterday.
Posted at 14:30 by Howard Bashman



"Roe's Author Found Himself a Bystander in '92 Abortion Fight; Justice Blackmun knew the right was in danger, but he didn't hear the story of its unexpected rescue until it was all over, his papers reveal" David G. Savage has this article today in The Los Angeles Times.
Posted at 14:25 by Howard Bashman



But you apparently can't say this! Reuters is reporting today that "LA Times Says Opera 'Pro-Life' Not 'Anti-Abortion.'" According to the article, "A Los Angeles Times music critic who wrote that a Richard Strauss opera was 'pro-life' -- meaning a celebration of life -- was stunned to pick up the paper and find his review changed by a literal-minded copy editor to read 'anti-abortion.'" Too funny.
Posted at 14:05 by Howard Bashman



You can say that! The Idaho Statesman today reports that "Idaho Supreme Court limits law against profanity; Justices rule on what you can say around kids." You can access yesterday's 3-to-2 ruling of the Idaho Supreme Court at this link. Thanks to Clayton Cramer for the pointer. (And apologies to David E. Bernstein for the title of this post.)
Posted at 14:00 by Howard Bashman



Talk about a "maverick judge's fierce independence": On Monday of this week, I linked to an article published that day in The Seattle Post-Intelligencer under the headline "Frequent reversals don't dim maverick judge's fierce independence." Today a divided eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit told District Judge Jack E. Tanner of the U.S. District Court for the Western District of Washington that if he wants a stay of the Ninth Circuit's earlier en banc ruling against him on the question whether, under Federal Rule of Criminal Procedure 11(e)(4), a district court may vacate a previously accepted guilty plea over the objections of both the defendant and the United States, he will have to enter the stay himself. You can access today's order, which contains an interesting dissent by Circuit Judge Ronald M. Gould, at this link. My initial mention of the en banc panel's ruling on the merits last month can be found here.
Posted at 13:31 by Howard Bashman



"Easton-based federal judge closer to seat on new court": The Express-Times contains this report today.
Posted at 12:33 by Howard Bashman



"Probe finds ex-clerks on Hatch panel hacked files": This article appears in The Salt Lake Tribune today. In other coverage, Lyle Denniston of The Boston Globe reports that "Senate report details snooping; Violations weighed; panel's Democrats call for prosecution." The Los Angeles Times reports that "Hacking Incident Riles Democrats; Senate panel members demand outside probe of accessing of files by two Republican staffers." The Chicago Tribune reports that "GOP staffers accused of taking senators' files." The Washington Times contains an article headlined "Report says staffer directed memo leak." And Talon News reports that "Miranda Blasts Judicial Memo Report."
Posted at 12:21 by Howard Bashman



Alabama Judicial Building Ten Commandments monument is again the subject of a ruling from the U.S. Court of Appeals for the Eleventh Circuit: You can access today's ruling at this link. An early favorite is this paragraph from the opinion:
In this case the appellants contend that the removal of the Ten Commandments monument created empty space, and that this empty space violates the Establishment Clause because it is an endorsement of religion, or in this instance, nontheism. This argument is without merit. If the appellants were correct in their assertion an Establishment Clause violation could never be cured because every time a violation is found and cured by the removal of the statute or practice that cure itself would violate the Establishment Clause by leaving behind empty space.
The religion of "no religion" is very difficult to establish.
Posted at 11:44 by Howard Bashman



The answer: In response to this morning's trivia question, Scott Amendola gives as his answer Eighth Circuit Judge John David Kelly, who according to the official Federal Judicial Center biography received his commission on August 3, 1998 and died on October 21, 1998. That is the shortest record of service by a former judge on a U.S. Court of Appeals of which I am aware. If anyone is aware of any shorter duration of service by a former judge on a U.S. Court of Appeals, please let me know.
Posted at 11:31 by Howard Bashman



"Ashcroft Hospitalized With Pancreatitis": The Associated Press provides this report. And James Vicini of Reuters reports that "Ashcroft in Intensive Care with Pancreatic Problems."
Posted at 09:52 by Howard Bashman



Dot-sucks: Today the U.S. Court of Appeals for the Sixth Circuit affirmed the entry of summary judgment in favor of a Michigan woman who "register[ed] the domain name 'lucasnursery.com' and creat[ed] a web site on which she detailed her complaints against Lucas for its allegedly bad service in landscaping her front yard." Lucas Nursery and Landscaping, Inc. had brought suit against the woman alleging that her actions violated the Anticybersquatting Consumer Protection Act. You can access today's decision at this link.
Posted at 09:25 by Howard Bashman



"Blackmun Files Reveal Marriage of Nine": Nina Totenberg had this report (Real Player required) today on NPR's "Morning Edition."
Posted at 09:09 by Howard Bashman



Judicial recess appointment trivia: That will be the topic of my March 2004 monthly appellate column to be published in The Legal Intelligencer on Monday, March 8, 2004. (Thanks to reporter Adam Liptak, The Legal Intelligencer was mentioned yesterday in The New York Times.)

Thinking about the subject of this month's column caused me to come up with the following "How Appealing" trivia question: which former U.S. Court of Appeals judge holds the record for the shortest duration of service on a U.S. Court of Appeals? One hint -- the answer is not Justice David H. Souter, who had