How Appealing

Thursday, July 31, 2008

"Fifteen public school teachers seek to enjoin their respective school districts from releasing their names in response to a public records request by the Seattle Times Company for the names of teachers alleged to have committed sexual misconduct against students." So begins the majority opinion that the Supreme Court of Washington State issued today.

And the majority opinion concludes:

We reverse the Court of Appeals in part. We hold a teacher's identity should be released under the [Public Disclosure Act] only when alleged sexual misconduct has been substantiated or when that teacher's conduct results in some form of discipline, even if only a reprimand. Letters of direction and related documents must be disclosed under the PDA, but where a letter simply seeks to guide future conduct, does not identify an incident of substantiated misconduct, and does not subject the teacher to any form of restriction or discipline, a teacher's name and other identifying information must be redacted.
Five of the court's nine justices joined in the majority opinion, while a sixth concurred only in the result without separate opinion. Two other justices joined in a dissenting opinion and would have held that "reports of allegations of sexual misconduct against children by their teachers, including the teachers' identities, must be disclosed whether the sexual misconduct is substantiated or not." The remaining justice did not participate in the ruling.
Posted at 12:03 PM by Howard Bashman


"Some complain Law Review biased against gay marriage": The Forum of Fargo, North Dakota today contains an article that begins, "Some North Dakota attorneys are outraged over the latest North Dakota Law Review, saying the scholarly publication was hijacked by national religious rights activists bent on stopping gay marriage." You can view a list of the articles in question, and the names of the authors of those articles, by clicking here.
Posted at 11:54 AM by Howard Bashman


"US judge: White House aides can be subpoenaed." The Associated Press provides a report that begins, "President Bush's top advisers are not immune from congressional subpoenas, a federal judge ruled Thursday in an unprecedented dispute between the two political branches. The House Judiciary Committee wants to question the president's chief of staff, Josh Bolten, and former legal counsel Harriet Miers, about the firing of nine U.S. attorneys. But President Bush says they are immune from such subpoenas. They say Congress can't force them to testify or turn over documents."

You can access today's ruling of the U.S. District Court for the District of Columbia at this link.
Posted at 11:34 AM by Howard Bashman



One more reason to turn off your word processor's "auto-correct" feature: The U.S. Court of Appeals for the Sixth Circuit today issued its ruling in United States v. Teh.

The Teh appeal involves a defendant's challenge to his conviction for having fraudulently imported counterfeit copies of motion picture DVDs.
Posted at 10:20 AM by Howard Bashman



"Second look at bid for new Nacchio trial; Full appeals court to decide whether conviction stands": The Rocky Mountain News today contains an article that begins, "The Department of Justice scored a victory Wednesday in its ongoing case against Joe Nacchio, as the full 10th Circuit Court of Appeals agreed to consider whether the former Qwest CEO's conviction should stand. Prosecutors asked the full panel to hear the case after a three- judge panel ruled earlier this year that the conviction should be thrown out and a new trial held. The court, which grants only a handful of such requests each year, set oral arguments for Sept. 24."

And today's edition of The Denver Post contains articles headlined "A full review for Nacchio verdict; A win for Feds" and "Retirees cheer Nacchio decision."

My earlier coverage of yesterday's order granting rehearing en banc can be accessed here.
Posted at 10:08 AM by Howard Bashman



"Alabama Supreme Court delays execution of Thomas Arthur; state can't find rape kit evidence": This article appears today in The Birmingham News.

And The New York Times reports today that "Court Votes to Postpone an Execution in Alabama."
Posted at 10:05 AM by Howard Bashman



"Witness: Hamdan not part of 'elite'; A defense expert testified that Osama bin Laden's driver had none of the skills to qualify to be an al Qaeda terrorist." Carol Rosenberg has this article today in The Miami Herald.

Today in The Los Angeles Times, Carol J. Williams reports that "At Guantanamo, Hamdan defense tries to block agent's testimony; The team wants allegations that the Yemeni confessed to a Bin Laden loyalty oath excluded, saying he had been coerced."

The New York Times reports that "Lawyers for Detainee Assert Coercion."

And The Washington Post reports that "9/11 Architect Is Unlikely to Aid Defense Of Ex-Driver."
Posted at 09:57 AM by Howard Bashman



"Federal judge says cross can remain on San Diego's Mt. Soledad; ACLU says opponents may appeal the decision; The symbol is part of a federally owned war memorial": This article appears today in The Los Angeles Times.

My earlier coverage of Monday's ruling appears at this link.
Posted at 09:34 AM by Howard Bashman



"Private jury pick sought for Nichols": The Atlanta Journal-Constitution today contains an article that begins, "Brian Nichols' defense team wants to conceal from public view one of the most crucial steps in his trial because he contends it is prejudicing potential jurors against him. In court papers filed Wednesday, Nichols and his lawyers asked Superior Court Judge James Bodiford to bar reporters from the courtroom until a jury is selected for the death penalty trial. The request troubled some experts because, in effect, it meant a shroud of secrecy would cover the process of deciding who would be an acceptable juror -- the process that often decides the fate of a case."
Posted at 09:00 AM by Howard Bashman


"Vote on Journalist Shield Stalled; Senate GOP Won't Debate Until Oil and Gas Bill Is Considered": This article appears today in The Washington Post.
Posted at 08:50 AM by Howard Bashman


"Workers' Religious Freedom vs. Patients' Rights; Proposal Would Deny Federal Money if Employees Must Provide Care to Which They Object": The Washington Post today contains a front page article that begins, "A Bush administration proposal aimed at protecting health-care workers who object to abortion, and to birth-control methods they consider tantamount to abortion, has escalated a bitter debate over the balance between religious freedom and patients' rights."
Posted at 08:48 AM by Howard Bashman


"Showdown over a Texas execution: The state plans to execute a Mexican national on Aug. 5, despite objections of the World Court." Warren Richey has this article today in The Christian Science Monitor.

And today's edition of The Washington Post contains an editorial entitled "Buying Time in Texas: Tuesday's execution of a Mexican national should be delayed while Congress resolves a treaty dispute."
Posted at 08:45 AM by Howard Bashman



"SJC's longest-serving member to retire; Greaney had key role in landmark decisions": The Boston Globe today contains an article that begins, "Justice John M. Greaney, the longest-serving member of the state Supreme Judicial Court and a pivotal vote in some of its most significant decisions, announced yesterday that he will retire by year's end, creating the potential for a new dynamic on the state's highest court."

And The Boston Herald reports today that "Justice retires, gov can fill seat."
Posted at 08:40 AM by Howard Bashman



"The Supreme Court Is Wrong On the Death Penalty": Today in The Wall Street Journal, Law Professor Laurence H. Tribe has an op-ed that begins, "It's not often that the U.S. Supreme Court is asked by a state and the federal government to reconsider a case it has just handed down because it missed key evidence. But that is what is happening now in Kennedy v. Louisiana."

The op-ed concludes, "The Eighth Amendment's cruel and unusual punishment clause should not be construed in a manner that puts it on a collision course with the 14th Amendment's equal protection clause. The Supreme Court would do well to take that overriding consideration into account as it decides whether to revisit its seriously misinformed as well as morally misguided ruling."
Posted at 07:57 AM by Howard Bashman



Wednesday, July 30, 2008

"A Nervous Moment for Kozinski and the 9th Circuit Conference": Pamela A. MacLean of The National Law Journal has an article that begins, "The cocktail party at the 9th U.S. Circuit Court of Appeals Judicial Conference had a nervous moment Monday when a Beverly Hills, Calif., attorney and critic of Chief Judge Alex Kozinski was escorted from the outdoors reception after getting too close to the chief judge. Cyrus Sanai, who gained press credentials on assignment from the LA Weekly, said he was waiting to talk with Judge Richard Clifton, the conference chair, when Kozinski passed within a few feet. That was enough to trigger U.S. marshals to ask Sanai to leave. It was Sanai who leaked word to the media in June that Kozinski had a Web site that contained sexually explicit materials; that news touched off a discipline inquiry of Kozinski, currently pending in the 3d Circuit. Sanai said he also plans to file his own, broader misconduct complaint next month against Kozinski, stemming from the materials on the Web site. The cocktail party was at the opening night reception held outdoors on the grounds of the Sun Valley, Idaho, resort and was described as 'open to all' by Clifton at the end of the first day's program. Sanai has been closely monitored by security at the conference."
Posted at 11:37 PM by Howard Bashman


Federal question jurisdiction does not exist to enable removal from state court to federal court of a lawsuit alleging attorney malpractice during an earlier a federal trademark lawsuit: A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued this ruling today.

Today's Fifth Circuit decision notes that it is arguably in tension with a recent Federal Circuit ruling which held that federal question jurisdiction does exist over a malpractice suit stemming from representation in an earlier federal patent suit. My earlier coverage of that ruling appears at this link.
Posted at 11:22 PM by Howard Bashman



"Court: Christian fraternity must be recognized." The Associated Press provides a report that begins, "A federal appeals court has ordered University of Florida officials to recognize a Christian fraternity. Judges from the 11th U.S. Circuit in Atlanta issued an injunction Wednesday ordering the action while a discrimination lawsuit filed by Beta Upsilon Chi against the school moves forward."
Posted at 11:10 PM by Howard Bashman


"Full appellate court to review Nacchio case": The Denver Post provides this news update.

The Rocky Mountain News has an update headlined "Full court will review Nacchio conviction."

And Reuters reports that "Court to review overturning of Nacchio conviction."

Nine judges took part in issuing today's order of the U.S. Court of Appeals for the Tenth Circuit granting the federal government's petition for rehearing en banc, which means that at least five judges voted to rehear the case.

You can access at this link the original three-judge panel's ruling, which ordered a new trial by a 2-1 vote. The federal government's petition for rehearing en banc can be accessed here. And defense counsel's response in opposition to the petition for rehearing en banc can be accessed here.

Today's order schedules the reargument to occur on September 24, 2008 in Denver. The order directs the parties to file briefs within thirty days from today addressing four specified issues. Here's hoping that the lawyers in the case were already planning to spend the entire month of August at their desks instead of on vacation.
Posted at 10:40 PM by Howard Bashman



"An undoubtedly inequitable hardship results from allowing the plaintiffs to prosecute actions in federal court and, after they lose on motions for summary judgment, granting their motions to vacate the judgments because of a lack of subject matter jurisdiction." Nevertheless, the Fourth Circuit reluctantly affirms the vacation of the judgment against the plaintiffs -- alter egos of the State of South Carolina that were content to sue in federal court until they lost on the merits. You can access today's Fourth Circuit ruling at this link.

The jurisdictional defect was not subject to waiver because subject matter jurisdiction was based on diversity of citizenship, and States are not considered "citizens" for purposes of the diversity jurisdiction statute.
Posted at 09:00 PM by Howard Bashman



"Lawyering and the Craft of Judicial Opinion Writing: The Second Conversation with Justice Samuel A. Alito Jr. on the Law of the Constitution." This evening in Malibu, California, starting at 8:30 p.m. eastern time, the Pepperdine University School of Law is hosting this event (you can also access a PDF file of the program's brochure by clicking here).

Participating will be Justice Samuel A. Alito, Jr.; Tenth Circuit Judge Michael W. McConnell; Walter E. Dellinger III; and Kenneth W. Starr. Law Professor Douglas W. Kmiec will serve as the program's host and moderator.

Based on this description of the program, it looks to be quite interesting. It is possible that the Pepperdine School of Law will offer a live webcast via this link. And C-SPAN will be taping the program for broadcast on a later date.
Posted at 08:05 PM by Howard Bashman



"Latest decision: Cross can stay; Landmark more memorial than religious symbol." Today's edition of The San Diego Union-Tribune contains an article that begins, "The giant cross atop Mount Soledad can stay, a federal judge ruled yesterday. The La Jolla landmark has been the subject of nearly 20 years of litigation, public votes and legislative maneuvers as critics complain it's unconstitutional to have a religious symbol on public land. But yesterday, U.S. District Judge Larry Burns said the cross -- visible for miles -- has become a memorial to veterans, and its secular message outweighs any religious meaning."

You can access yesterday's ruling of the U.S. District Court for the Southern District of California at this link.
Posted at 05:25 PM by Howard Bashman



"One Year Later: No Comment from Chief Justice Roberts on his Health." At "The BLT: The Blog of Legal Times," Tony Mauro has a post that begins, "One year after he suffered a seizure near his summer home in Maine, Chief Justice John Roberts Jr. is not commenting on the current state of his health. In response to a series of written questions from Legal Times about possible medications or changes in lifestyle, or whether he has suffered any more seizures or other health problems, Roberts offered only a 'no comment.'"

This blog's coverage of the events that occurred one year ago can be found in posts that appeared on July 30, 2007 and July 31, 2007.
Posted at 12:28 PM by Howard Bashman



"Media shield measure stalls in the Senate": The Associated Press provides a report that begins, "A bill to protect journalists from having to reveal their sources in some federal courts has stalled in the Senate."
Posted at 12:17 PM by Howard Bashman


"Politics in U.S. hiring: When is it improper? At the Justice Department, clear lines were crossed, report says." This article appears today in The Christian Science Monitor.
Posted at 09:30 AM by Howard Bashman


"Witness fails to ID bin Laden's driver; The Pentagon came close to wrapping up its prosecution of Osama bin Laden's driver, calling a former ABC journalist, who testified he didn't recognize the driver from a 1998 interview": Carol Rosenberg has this article today in The Miami Herald.

The Washington Post today contains an article headlined "Capturing Bin Laden On Camera; At Guantanamo Trial, Former ABC Reporter Recounts 1998 Interview."

Carol J. Williams of The Los Angeles Times reports that "Guantanamo prosecution doesn't rest in Hamdan case; Though finished with their presentation, government lawyers await the military judge's decision on whether they can call a key witness to the stand."

And in The Wall Street Journal, Debra Burlingame has an op-ed entitled "From Gitmo to Miranda, With Love."
Posted at 09:24 AM by Howard Bashman



"Prop. 8 backers sue to change ballot wording": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "Attorney General Jerry Brown is trying to stack the deck against a November ballot measure barring same-sex marriage by declaring in his formal ballot description that it 'eliminates the right of same-sex couples to marry,' sponsors of the initiative charged in a lawsuit Tuesday."

And The San Diego Union-Tribune reports today that "Ban supporters' lawsuit targets ballot phrasing; Brown's wording called 'misleading and prejudicial.'"
Posted at 09:20 AM by Howard Bashman



"Union of Whole Foods and Wild Oats Is Put in Doubt": This article appears today in The New York Times.

The Los Angeles Times reports today that "Court overturns ruling that allowed Whole Foods-Wild Oats merger; The Federal Trade Commission opposed the deal, but prospects for reversing it are unclear."

And The Austin American-Statesman reports that "Whole Foods dealt setback in Wild Oats case."

My earlier coverage of yesterday's D.C. Circuit ruling appears at this link.
Posted at 09:17 AM by Howard Bashman



"D.C. case cited in sentencing challenge; Judge urges Supreme Court to rethink issue": The Washington Times today contains an article that begins, "A senior federal appeals court judge is citing the case of a D.C. man awaiting sentencing on a drug charge in asking the U.S. Supreme Court to revisit whether judges should give defendants tougher sentences based on conduct that jurors rejected as a basis for conviction. 'I wonder what the man on the street might say about this practice of allowing a prosecutor and judge to say that a jury verdict of "not guilty" for practical purposes may not mean a thing,' Judge Myron H. Bright, senior judge for the 8th U.S. Circuit Court of Appeals based in St. Louis, wrote in a recent opinion in an unrelated methamphetamine case."
Posted at 09:07 AM by Howard Bashman


"House Bill Would End D.C. Registration Rules": The Washington Post today contains an article that begins, "D.C. officials are trying to beat back an effort by some lawmakers to send a bill to the House floor that would dramatically weaken the city's gun laws. The gun bill, co-sponsored by Reps. Mike Ross (D-Ark.) and Mark Souder (R-Ind.), was introduced previously and stalled. The measure now stands a good chance of gaining approval by the House of Representatives because of an unusual legislative maneuver, congressional staff members and observers said. Souder said he acted because the D.C. government has made only limited changes to its 32-year-old handgun ban since the U.S. Supreme Court ruled last month that it was unconstitutional."
Posted at 09:02 AM by Howard Bashman


"A curb on gay marriage will fall; Repeal of 1913 law goes next to Patrick; Nonresidents to get right to wed in Mass." This front page article appears today in The Boston Globe.

The New York Times reports today that "Same-Sex Marriage Barrier Nears End in Massachusetts."

And The Republican of Springfield, Massachusetts reports that "House OKs repeal of marriage law."
Posted at 08:55 AM by Howard Bashman



In jurisprudence essays available online at Slate: Cullen Seltzer has an essay entitled "Let Them Be Lawyers: The Supreme Court on the dignity of the mentally ill."

And Law Professor Eugene Volokh has an essay entitled "Talula Does the Hula From Hawaii: And other names so weird that judges forbade them."
Posted at 08:14 AM by Howard Bashman



Available online from law.com: An item headlined "Sizing Up the 2007-08 Supreme Court Term" consists of the transcript of Legal Times' seventh annual U.S. Supreme Court review. You can also download the complete audio of the event via this link (21.9MB mp3 audio file).

And an article headlined "D.C. Circuit: DOJ Can't Bar Access to Amnesty Deal" reports on a ruling that the U.S. Court of Appeals for the D.C. Circuit issued last Friday.
Posted at 08:05 AM by Howard Bashman



Tuesday, July 29, 2008

"Court to review abortion ruling; Ban on partial-birth procedure, voided in May, to get 2nd look": This article appears today in The Washington Times.
Posted at 11:58 PM by Howard Bashman


"Movie on al Qaeda unveiled at tribunal; The Pentagon premiered a controversial, gory movie at a war crimes tribunal showing al Qaeda's mayhem": Carol Rosenberg has this article today in The Miami Herald. She also has a news update headlined "Prosecution nearly done in bin Laden's driver's case."

Today in The Los Angeles Times, Carol J. Williams reports that "Guantanamo jurors shown graphic film on Al Qaeda; A lawyer for Salim Ahmed Hamdan objects to some of the footage, calling it 'extraordinarily prejudicial.'"

The New York Times reports that "In Detainee Trial, System Is Tested."

And The Washington Post reports that "Work for Bin Laden Is Said to Predate War; Former Driver on Trial at Guantanamo."
Posted at 11:55 PM by Howard Bashman



"Who's a journalist? The proposed federal law to protect reporters and their sources draws a tenuous line between bloggers and professionals." Scott Gant had this op-ed yesterday in The Los Angeles Times.
Posted at 11:48 PM by Howard Bashman


"Opponents of gay marriage say they'll sue over changed wording in Proposition 8; After a tweak by the state attorney general's office, the initiative now seeks to 'eliminate the right' of same-sex couples to marry, wording that the measure's proponents say could prejudice voters": This article appears today in The Los Angeles Times.
Posted at 11:45 PM by Howard Bashman


"Bush Approves Execution Of Soldier for Murders": The Washington Post contains this article today.
Posted at 11:38 PM by Howard Bashman


"Internal Justice Dept. Report Cites Illegal Hiring Practices": This front page article appears today in The Washington Post. The newspaper also contains an editorial entitled "Justice Besmirched: How the Bush administration soiled itself." And Jamie Gorelick has an op-ed entitled "Another Blow To Justice."

The New York Times today contains an article headlined "Report Faults Aides in Hiring at Justice Dept." The newspaper also contains an editorial entitled "There Was Smoke -- and Fire."

The Los Angeles Times reports that "Sexuality bias seen at Justice Department; An internal report says alleged homosexuality was used as a litmus test in hiring and firing; Margaret Chiara, a former U.S. attorney, now thinks a false rumor cost her her job."

The Washington Times contains an article headlined "Report finds politics in hiring; Senate panel to investigate."

Joe Palazzolo of Legal Times has an article headlined "Report: Ex-DOJ Officials Improperly Politicized Hiring, Broke Law; Report finds political hiring was most pronounced in the case of immigration judges."

You can access the report, titled "An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General," by clicking here.
Posted at 11:32 PM by Howard Bashman



"A Torture Paper Trail": Columnist Eugene Robinson has this op-ed today in The Washington Post.
Posted at 11:08 PM by Howard Bashman


"Panel Hears of Inequities in Death Penalty; Unabomber's Brother Is Among Witnesses Before Md. Commission": The Washington Post contains this article today.

And The Baltimore Sun reports today that "First death penalty hearing held; Md. panel listens to evidence on disparities."
Posted at 11:02 PM by Howard Bashman



"D.C. Is Sued Again Over Handgun Rules": This article appears today in The Washington Post.

And The Washington Times reports today that "Heller, others challenge semi-automatic ban; Plaintiffs call D.C. definition too vague, unfair to residents."
Posted at 10:54 PM by Howard Bashman



When a lawsuit filed against multiple defendants in state court is capable of being removed to federal court, does the time for removal begin to run when the first defendant receives service of process or when the last defendant receives service of process? Addressing a question of first impression that had already produced a circuit split among other federal appellate courts, today a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit held, in a decision you can access here, that the time for removal does not begin to run until the last defendant receives service of process.
Posted at 10:34 PM by Howard Bashman


Dan Levine covers the Ninth Circuit's Judicial Conference, now underway in Sun Valley, Idaho, at The Recorder's "Legal Pad" blog: Thus far, Dan has posts titled "Where Kozinski Goes, So Goes Security"; "The Elephant In The Room"; "Idaho: Have A Little SCOTUS With Your Meth"; and "Things to Do in Idaho: Ninth Circuit Shindig."

Dan's coverage also includes photos of important people.

In other coverage, Pamela A. MacLean ofThe National Law Journal reports that "Kozinski, Facing Disciplinary Inquiry, to Keep Low Profile at Conference." Pam writes, "Adding to the prickly situation, Beverly Hills attorney Cyrus Sanai, a Kozinski critic and the one who accessed and leaked the Kozinski Web site, obtained press credentials from the LA Weekly to cover the event."
Posted at 10:18 PM by Howard Bashman



A look at Law Professor Barack Obama: The New York Times on Wednesday will contain an article headlined "As a Professor, Obama Enthralled Students and Puzzled Faculty."
Posted at 08:54 PM by Howard Bashman


"Ruling clears way to begin Tiller trial": Today's edition of The Wichita Eagle contains an article that begins, "George Tiller will learn today when he'll be scheduled for trial, after a judge ruled Monday that prosecutors can proceed with 19 misdemeanor charges against the Wichita abortion provider."

And The Associated Press reports that "Judge upholds abortion law."

You can access yesterday's Kansas state trial court ruling at this link.
Posted at 08:47 PM by Howard Bashman



"Colorado puts brakes on license plate abbreviations": The Rocky Mountain News on Monday contained an article reporting that "WTF" "has been added to a lengthy list of 261 three-letter combinations that the state considers verboten on the standard-issue six-character plate."

At least in Pennsylvania, it's still possible for an appellate law blogger to randomly have a license plate that begins with "FJC."
Posted at 08:30 PM by Howard Bashman



"E-access to court files 'inevitable,' lawyer says": Yesterday's edition of The Edmonton Journal contained an article that begins, "The judges on the Supreme Court of Canada will decide this fall whether to post court documents online, the culmination of years of debate on whether throwing open the electronic doors threatens privacy rights in an era of Internet stalkers and identity thieves."
Posted at 08:24 PM by Howard Bashman


"Federal officials try to block Texas execution to allow review of case": Monday's edition of The Dallas Morning News contained an article that begins, "Fourteen years and numerous judicial reviews have passed since Jose Medellin was sentenced to die after confessing to the brutal gang rape and murder of two teenage girls in Houston. That's long enough, state officials say. It's time to carry out the sentence. But defense attorneys, and an unusual coalition of federal officials, including no less than the attorney general and secretary of state, say if his Aug. 5 execution is not stayed, so Mr. Medellin's case can be reviewed one more time at the behest of the International Court of Justice, Texas will be rushing to judgment and endangering Americans abroad."
Posted at 08:17 PM by Howard Bashman


"Local officials fight pact with MILF in Court": This article, about an agreement involving the Moro Islamic Liberation Front, appears in Wednesday's edition of The Manila Times.
Posted at 08:14 PM by Howard Bashman


Third Circuit rejects Pennsylvania state prison inmates' claims arising from the Department of Corrections' confiscation of materials that could be used to file bogus liens against judges, prosecutors, and other government officials: You can access today's ruling of the U.S. Court of Appeals for the Third Circuit at this link. The opinion was issued per curiam, lest anyone consider filing a bogus lien against the author of today's ruling.
Posted at 07:47 PM by Howard Bashman


"Judge: Erie collar-bomb suspect not competent." The Associated Press provides this report.

And The Erie Times-News has an update headlined "Diehl-Armstrong found incompetent in Wells case."
Posted at 06:14 PM by Howard Bashman



"Supremely Screwed Up: A do-over for the High Court?" In the August 4, 2008 issue of The Weekly Standard, Terry Eastland has an essay that begins, "The Supreme Court ended its term this year by making a mistake in one of its most controversial cases--the case in which it held unconstitutional a Louisiana law authorizing capital punishment for the rape of a child under 12 years of age."
Posted at 03:25 PM by Howard Bashman


"Court ruling on Whole Foods-Wild Oats deal reversed": Reuters provides a report that begins, "A U.S. appeals court reversed on Tuesday a lower court decision that allowed Whole Foods Market Inc's purchase of rival Wild Oats Markets Inc to proceed over the objections of antitrust authorities."

You can access today's ruling of a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit at this link. Circuit Judge Janice Rogers Brown wrote the majority opinion, in which Circuit Judge David S. Tatel joined. Judge Tatel also issued a concurring opinion. Circuit Judge Brett M. Kavanaugh issued a dissenting opinion and would have allowed implementation of the merger.
Posted at 11:48 AM by Howard Bashman



"The Fiction Behind Torture Policy: The lawyers designing interrogation techniques cited Jack Bauer more frequently than the Constitution." Dahlia Lithwick has this essay in the August 4, 2008 issue of Newsweek.

And online at Slate, she has an essay titled "Horror Stories: The best new reads about law and the war on terror." Thanks for the prominent mention of "How Appealing," Dahlia!
Posted at 08:34 AM by Howard Bashman



"The Becker-Posner Blog" on "Compelled Disclosure of Food Characteristics": Judge Posner's take is here, while Professor Becker comments at this link.

In his post, Judge Posner writes, "As Becker has emphasized in academic work, the choice of an addictive life style may be freely chosen and the life style itself may be socially productive and personally satisfying; Becker and I, for example, are addicted to work."
Posted at 08:30 AM by Howard Bashman



Available online from law.com: Joe Palazzolo reports that "Disabilities Law Covers Sex Disorders, D.C. Circuit Rules; Federal workers are covered under 1973 Rehabilitation Act." My earlier coverage of the D.C. Circuit's ruling appears at this link.

In other news, "Pro Bono Lawyers Make Case to O'Connor in Religious Speech Suit."

And an article reports that "Gibson Dunn Will Fight Court's $13.4 Million Reversal in Crash Case."
Posted at 08:20 AM by Howard Bashman



"Caperton petitions U.S. Supreme Court; Verdict's overturn has national implications, says former U.S. solicitor general": Early this month. The Charleston (W. Va.) Gazette published an article that begins, "West Virginia coal operator Hugh M. Caperton and Harman Mining, his company that was forced into bankruptcy, petitioned the U.S. Supreme Court on Wednesday afternoon to accept its appeal of a West Virginia Supreme Court ruling. Caperton and Harman are challenging two state Supreme Court actions that overturned a $50 million Boone County jury verdict, now worth $76.3 million, against A.T. Massey Coal Co. for hijacking a coal supply contract Harman had to deliver coal to LTV steel mills in Pittsburgh. The 'appearance of bias' by Justice Brent Benjamin, the petition argues, has national implications that could affect supreme courts in 39 states that elect judges. Don Blankenship, who headed A.T. Massey (later renamed Massey Energy), spent more than $3 million of his own money to buy television advertisements and other commercials promoting Benjamin's 2004 campaign against incumbent Justice Warren McGraw. Caperton's lawyer, Theodore B. Olson, was U.S. solicitor general from 2001 to 2004 and has represented Presidents Ronald Reagan and George W. Bush personally."

And The Associated Press reported early this month that "Massey case appealed to US Supreme Court."

Yesterday afternoon, as The West Virginia Record reports in an article headlined "Benjamin concurs, but does so much more," Justice Brent D. Benjamin of the Supreme Court of Appeals of West Virginia issued this lengthy and remarkable concurring opinion in the case directly addressing the accusations of bias being raised against him.
Posted at 08:14 AM by Howard Bashman



"Special-interest lobbies pour cash into judicial races": Yesterday's edition of The Chicago Tribune contained this article.
Posted at 08:05 AM by Howard Bashman


Monday, July 28, 2008

"The Censors Lose in Court": This editorial appears today in The New York Times.
Posted at 11:20 PM by Howard Bashman


"Bush approves execution of soldier, first in 50 years": McClatchy Newspapers provide this report.

Tuesday's edition of The New York Times will report that "Execution by Military Is Approved by President."

And The Associated Press reports that "Bush OKs execution of Army death row prisoner."
Posted at 11:10 PM by Howard Bashman



"U.S. urges new hearing in death penalty case": Lyle Denniston has this post at "SCOTUSblog."

And today's edition of The Los Angeles Times contains an editorial entitled "Will the Supreme Court reconsider? A controversial case proves that the courts are not the best place to fight capital punishment."
Posted at 11:07 PM by Howard Bashman



"Media's drinking water offers a double Camp Justice chill; A look at the Pentagon media machine at the first U.S. war-crimes tribunal reveals a $32,000 travel morgue that chills reporters' drinking water": Carol Rosenberg has this article today in The Miami Herald.

And she also has a news update headlined "Experts open second week of driver's trial."
Posted at 06:20 PM by Howard Bashman



"Federal appeals court to review Va. abortion ban": The Richmond Times-Dispatch has a news update that begins, "The full 4th U.S. Circuit Court of Appeals will rehear a challenge to Virginia's ban on a late-term abortion procedure. On two occasions a three-judge panel of the same court ruled 2-1 that the challenge was successful -- that the Virginia ban on what opponents call 'partial-birth abortion' was unconstitutional."

The Associated Press reports that "Full court will consider Virginia ban on 'partial-birth abortion.'"

And at "SCOTUSblog," Lyle Denniston has a post titled "A new test of a 'partial-birth' abortion ban."

My earlier coverage of the Fourth Circuit's most recent three-judge panel ruling in the case appears here, here, and here.
Posted at 06:08 PM by Howard Bashman



"Lawsuit filed against new DC gun regulations": The Associated Press provides a report that begins, "The plaintiff in the Supreme Court case that struck down Washington's 32-year-old handgun ban filed a new federal lawsuit Monday, alleging the city's new gun regulations still violate an individual's right to own a gun for self-defense."

Update: At "SCOTUSblog," Lyle Denniston has a post titled "New Second Amendment case in D.C."
Posted at 06:00 PM by Howard Bashman



"Long prison terms for 2 Border Patrol agents upheld": The Houston Chronicle provides a news update that begins, "A federal appeals court today upheld long prison sentences given to a pair of U.S. Border Patrol agents who shot an unarmed drug smuggler near El Paso and lied to superiors about it."

And The Associated Press reports that "5th Circuit upholds prison terms for border agents."

My earlier coverage of today's Fifth Circuit ruling appears in the post immediately below.
Posted at 05:40 PM by Howard Bashman



Fifth Circuit affirms in large measure the convictions of two border patrol agents alleged to have shot a drug smuggler from behind as he fled on foot toward the Mexican border: The U.S. Court of Appeals for the Fifth Circuit issued this ruling today in the controversial case of United States v. Ignacio Ramos and Jose Compean. Today's ruling affirms the agents' convictions on seven counts of the indictment but vacates their convictions on another five counts.
Posted at 02:30 PM by Howard Bashman


"A Prosecutor Is Called 'Relentless'": Today in The New York Sun, Josh Gerstein has an article that begins, "A federal prosecutor who has led a series of investigations into Islamic militants and Muslim groups based in Virginia, Gordon Kromberg, may soon be facing a trial of sorts himself, if defense lawyers get their way."
Posted at 12:10 PM by Howard Bashman


"Why It Was a Great Victory": In the August 14, 2008 issue of The New York Review of Books, Professor Ronald Dworkin will have an essay that begins, "Boumediene v. Bush is one of the most important Supreme Court decisions in recent years."
Posted at 11:50 AM by Howard Bashman


"Iowa case raises question: Is stripping an art?" The Associated Press provides this report.
Posted at 11:40 AM by Howard Bashman


Sunday, July 27, 2008

"California to Begin Integrating Prisons for Men; Some Warn That Racial Tension Will Explode as Others Predict Increased Tolerance": This article appears today in The Washington Post.
Posted at 09:37 AM by Howard Bashman


"Judge: Nichols trial may start in early September." Today's edition of The Atlanta Journal-Constitution contains an article that begins, "After 14 days of jury selection, 101 prospective jurors have been questioned and 40 placed in the pool of 'qualified' jurors that will eventually reach 100. From that group, 18 jurors and alternates will be selected to decide the fate of courthouse murder suspect Brian Nichols."
Posted at 09:35 AM by Howard Bashman


Saturday, July 26, 2008

"Campaigns Halt as Nevada Court Upholds Term Limits": The New York Times today contains an article that begins, "A day before the start of early voting in Nevada, 21 incumbents found that their re-election bids were suddenly over as the State Supreme Court on Friday unanimously upheld term limits passed by voters in 1996."

The Reno Gazette-Journal today contains an article headlined "State's high court: 12-year limits valid."

And The Las Vegas Review-Journal reports that "State high court rules 21 ineligible; Woodbury can't run again; Buckley, Raggio can stay on ballot."

You can access here and here yesterday's rulings of the Supreme Court of Nevada.
Posted at 10:37 PM by Howard Bashman



"Court limits defendant's right to seek mercy": Yesterday in The San Francisco Chronicle, Bob Egelko had an article that begins, "A criminal defendant's right to address the judge before sentencing and plead for mercy without being cross-examined, a right traced back to 17th century England, doesn't exist in California, the state Supreme Court ruled Thursday."

You can access Thursday's ruling of the Supreme Court of California at this link.
Posted at 10:32 PM by Howard Bashman



"Conflicting marijuana laws take stage in trial; San Luis Obispo County businessman is fighting prosecutors' contention that he is a drug trafficker": The Los Angeles Times contains this article today.
Posted at 10:24 PM by Howard Bashman


"Mr. Mukasey's Justice: Attorney General Michael Mukasey's demand for an expansion of the president's power to detain foreigners without charge was couched, as usual, in apocalyptic terms." This editorial will appear Sunday in The New York Times.
Posted at 10:22 PM by Howard Bashman


"Driver: U.S. let bin Laden escape; Former Osama bin Laden driver Salim Hamdan told FBI interrogators that the United States had multiple chances to capture Osama bin Laden before the Sept. 11 attacks." Carol Rosenberg has this article today in The Miami Herald.

Today in The Los Angeles Times, Carol J. Williams has an article headlined "Guantanamo war crimes defendant helped Bin Laden succeed, FBI agent testifies; Bit players like the Al Qaeda leader's driver are key to protecting Bin Laden, says a special agent who interrogated Salim Ahmed Hamdan for 13 days."

And The New York Times reports that "Prosecutors State Case in First Guantanamo Trial."
Posted at 10:21 PM by Howard Bashman



"Pa. hate-crime protections weakened": The Philadelphia Inquirer today contains a front page article that begins, "Victims of hate crimes who are gay, female or disabled no longer have special protections under state law. The state Supreme Court has upheld a lower-court ruling striking down the 2002 expansion of the Ethnic Intimidation Act that covered sexual orientation, gender identity, and physical or mental disability."

Friday's edition of The Lancaster Intelligencer Journal reported that "Pa. court upholds gay-rally ruling."

And Thursday's edition of The Pittsburgh Tribune-Review reported that "Top state court backs Christian group in hate-crimes case."

You can access Wednesday's order of the Supreme Court of Pennsylvania at this link.
Posted at 11:30 AM by Howard Bashman



"Scalia Makes the Case on Stage": Tony Mauro had this post yesterday at "The BLT: The Blog of Legal Times."
Posted at 08:11 AM by Howard Bashman


"Roberts Can Do Better Than Consensus: He needs to start moving the law in the direction he prefers." Law Professor Scott D. Gerber has this op-ed today in The Wall Street Journal.
Posted at 08:00 AM by Howard Bashman


Friday, July 25, 2008

"In the Balance: Depending on who wins the presidency, the Supreme Court could turn sharply to the right or see its first crusading liberal justice in many years." Stuart Taylor Jr. will have this cover story in the forthcoming issue of National Journal magazine.
Posted at 04:30 PM by Howard Bashman


"U.S. Trades Alito To British Supreme Court In Six-Judge Deal": The Onion provides this audio report.

And in actual news, The Daily Item of Sunbury, Pennsylvania reports today that "Justice Alito to speak in Valley on Sept. 15."
Posted at 04:28 PM by Howard Bashman



"Reporter Invokes Fifth Amendment, Then Is Celebrated by the Judge": Josh Gerstein has this article today in The New York Sun.

The Washington Times reports today that "Judge upholds reporter's right to protect sources." The newspaper also contains an editorial entitled "The right to know."

The Los Angeles Times reports that "Judge declines to order reporter to reveal sources; Bill Gertz of the Washington Times wrote about Chi Mak, who was found guilty of plotting to send U.S. Navy information to China."

And The Associated Press reports that "Grand jury to call reporter on indictment sources."
Posted at 07:54 AM by Howard Bashman



"Janet Jackson's Breast Freed, This Time by Court": Bloomberg News columnist Ann Woolner has this essay today.
Posted at 07:47 AM by Howard Bashman


"Top U.S. Court Near Decision on Exxon Valdez Interest Payments": Greg Stohr of Bloomberg News has this report.
Posted at 07:37 AM by Howard Bashman


Available online from law.com: Tony Mauro reports that "High Court Justices Go Digital to Access Founding-Era Documents."

And Shannon P. Duffy reports that "Five Tapped for Federal Bench Openings in Pennsylvania."
Posted at 07:35 AM by Howard Bashman



Thursday, July 24, 2008

"Justice Advised CIA in '02 About Legal Waterboarding": The Washington Post on Friday will contain an article that begins, "Lawyers for the Bush administration told the CIA in 2002 that its officers could legally use waterboarding and other harsh measures while interrogating al-Qaeda suspects, as long as they acted 'in good faith' and did not deliberately seek to inflict severe pain, according to a Justice Department memo made public yesterday."

The Associated Press reports that "2002 Justice memo OKs CIA interrogation tactics."

And CNN.com reports that "Previously secret torture memo released."

CNN.com has posted the heavily redacted memo, signed by then-Assistant Attorney General Jay S. Bybee, who now serves as a judge on the U.S. Court of Appeals for the Ninth Circuit, at this link.
Posted at 11:03 PM by Howard Bashman



"Court: Colorado financial aid ban unconstitutional." The Denver Post today contains an article that begins, "Colorado violated the U.S. Constitution when it blocked taxpayer-funded financial aid to students at religious schools that the state calls 'pervasively sectarian,' a federal appellate court in Denver ruled Wednesday."

And The Associated Press provides a report headlined "Another courtroom victory for religious colleges."

My earlier coverage of yesterday's Tenth Circuit ruling appears at this link.
Posted at 10:54 PM by Howard Bashman



"Council's sectarian prayer ban upheld; Fredericksburg member may appeal to high court in bid to use Christ's name in blessing": This article appears today in The Richmond Times-Dispatch.

And The Free Lance-Star of Fredericksburg, Virginia reports today that "City prayer policy upheld; Circuit court rules for city."

My earlier coverage of yesterday's Fourth Circuit ruling appears at this link.
Posted at 10:48 PM by Howard Bashman



"Court backs Pledge of Allegiance refusal": The Palm Beach Post today contains an article that begins, "A federal appeals court has upheld the right of former Palm Beach County student Cameron Frazier to refuse to stand for the Pledge of Allegiance in school, but it did not settle the broader question of whether all students have the right to refuse to participate in the pledge."

The Miami Herald has a news update headlined "Court: Student can refuse to stand for pledge."

And law.com reports that "11th Circuit Rejects Most of Fla. Pledge Challenge."

My earlier coverage of yesterday's Eleventh Circuit ruling appears at this link.
Posted at 10:42 PM by Howard Bashman



Programming note: Today I will be traveling back and forth to SCI Rockview, located near State College, Pennsylvania, to meet with an incarcerated appellate client. Additional posts will appear here later today.
Posted at 07:30 AM by Howard Bashman


Wednesday, July 23, 2008

"Court affirms Va. council's prayer policy": The Associated Press provides a report that begins, "The Fredericksburg City Council's policy prohibiting a member from opening meetings with a prayer mentioning Jesus does not violate his free-speech rights, a federal appeals court ruled Wednesday. A three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously rejected the Rev. Hashmel Turner's lawsuit challenging a nonsectarian prayer policy adopted by the council in 2005. The court said the policy does not violate Turner's rights because the prayer is 'government speech,' not individual speech."

Retired Justice Sandra Day O'Connor wrote today's ruling of the U.S. Court of Appeals for the Fourth Circuit.
Posted at 10:32 PM by Howard Bashman



"Part of Fla. Pledge of Allegiance law stricken": The Associated Press provides this report.

My earlier coverage of today's Eleventh Circuit ruling appears at this link.
Posted at 10:25 PM by Howard Bashman



"Judge to Moussaoui jury: You got it right." The Associated Press provides this report.
Posted at 06:10 PM by Howard Bashman


Tenth Circuit declares unconstitutional Colorado's refusal to provide scholarships to otherwise eligible students who attend accredited Colorado colleges deemed "pervasively sectarian": Circuit Judge Michael W. McConnell issued today's ruling on behalf of a unanimous three-judge panel.

Today's ruling states, "We find the exclusion unconstitutional for two reasons: the program expressly discriminates among religions without constitutional justification, and its criteria for doing so involve unconstitutionally intrusive scrutiny of religious belief and practice." The Tenth Circuit's ruling reverses a federal district court's decision that rejected the constitutional challenge to this exclusion.
Posted at 03:07 PM by Howard Bashman



May a State require parental permission in order to exempt a student from having to recite the Pledge of Allegiance in school? In an opinion issued today, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit holds that a federal district court erred in ruling that this aspect of Florida's Pledge of Allegiance statute -- requiring parental permission before a student will be excused from reciting the Pledge -- was facially unconstitutional.
Posted at 02:47 PM by Howard Bashman


"Defense Lawyer Files to Dismiss MySpace Case": The Washington Post has a news update that begins, "The case against a Missouri mother accused of creating a fake MySpace page to harass a 13-year-old girl should be tossed out of court because if she is guilty as charged, then so are millions of Internet users every day, her attorney said in court documents filed today."

WSJ.com's "Law Blog" makes the motions to dismiss available via a post titled "Lori Drew Moves to Dismiss Indictment in MySpace Suicide Case."
Posted at 12:22 PM by Howard Bashman



"Candidates Strongly Disagree On Abortion": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition."
Posted at 08:45 AM by Howard Bashman


"Disability protections ordered for sexually incapacitated": Michael Doyle of McClatchy Newspapers has an article that begins, "A South Carolina breast-cancer survivor has beaten the State Department and convinced judges in Washington that the inability to have sex is a disability protected under federal anti-discrimination laws."

My earlier coverage of last Friday's D.C. Circuit ruling appears at this link.
Posted at 08:42 AM by Howard Bashman



"3rd Circuit Strikes Down COPA -- Again": Shannon P. Duffy has this article today in The Legal Intelligencer.

You can access yesterday's Third Circuit ruling at this link.
Posted at 08:40 AM by Howard Bashman



"Conspiracy idea floated at war-crimes trial; An al Qaeda 9/11 conspiracy theory and conflicting portrayals of Osama bin Laden's former driver dominated the opening arguments in the first U.S. war-crimes tribunal since World War II": Carol Rosenberg has this article today in The Miami Herald, along with an article headlined "Sketch artist greeted with new Gitmo obstacle."

Today in The Los Angeles Times, Carol J. Williams reports that "Bin Laden's driver knew 9/11 target, lawyer says."

The New York Times reports that "Two Sides at Guantanamo Trial Paint Starkly Different Pictures of the Defendant."

The Washington Post contains an article headlined "Witness: Hamdan Had 2 Missiles When Arrested."

And USA Today reports that "Prosecutors paint bin Laden aide as top al-Qaeda insider."
Posted at 08:33 AM by Howard Bashman



Happy birthday to Justice Anthony M. Kennedy: According to the "Today in History" feature from The Associated Press, Justice Kennedy turns 72 today.
Posted at 08:15 AM by Howard Bashman


"Court's dilemma over cuts in Medi-Cal fees": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "A federal appeals court that halted and then reinstated a 10 percent cut in Medi-Cal fees for prescription drugs has received a conflicting set of warnings: from pharmacists, who say the reduction means patients will lose access to vital medicines; and from state health officials, who say suspending the cut would deepen California's fiscal crisis."
Posted at 08:03 AM by Howard Bashman


"Pa. high court OKs forced drugging of mentally ill death-row inmates": Today in The Philadelphia Inquirer, Emilie Lounsberry has an article that begins, "The Pennsylvania Supreme Court yesterday dealt setbacks to four death-row inmates, including two mentally ill prisoners from Philadelphia who can now be forcibly medicated in order to make them mentally competent to continue their appeals."

And The Associated Press reports that "Pa. court OKs forced drugging of death row inmates."

Yesterday's ruling of the Supreme Court of Pennsylvania consists of a majority opinion, a concurring opinion, and a dissenting opinion. And that court's ruling yesterday in a second, related case consisted of a majority opinion and a dissenting opinion.
Posted at 07:54 AM by Howard Bashman



Tuesday, July 22, 2008

"Mukasey's Wary Start Dismays Ex-Backers": This article will appear Wednesday in The New York Times.
Posted at 11:08 PM by Howard Bashman


"Abu-Jamal loses latest appeal for new trial": Emilie Lounsberry of The Philadelphia Inquirer has a news update that begins, "A federal appeals court yesterday refused to reconsider the decision denying a new trial for Mumia Abu-Jamal in the 1981 murder of Philadelphia Police Officer Daniel Faulkner."
Posted at 10:48 PM by Howard Bashman


Switched at birth: But barred by the statute of limitations. The U.S. Court of Appeals for the Eighth Circuit issued this ruling today.
Posted at 02:55 PM by Howard Bashman


Third Circuit affirms federal district court decision finding that the Child Online Protection Act facially violates the First and Fifth Amendments of the Constitution and permanently enjoining the Attorney General from enforcing that act: Marc J. Randazza has this post at "The Legal Satyricon" blog. He has posted a copy of today's ruling at this link.

Update: You can now access the opinion via the Third Circuit's web site at this link.

And The Associated Press reports that "Court affirms online content law unconstitutional."
Posted at 12:05 PM by Howard Bashman



"Friends mourn death of Judge Brieant at 87": This article appears today in The Journal News of Westchester, New York.
Posted at 10:50 AM by Howard Bashman


"Use of interrogations limited in war-crimes trial; The Guantanamo Bay war crimes tribunal began with a not-guilty plea from Osama bin Laden's driver and some testimony excluded by the judge": Carol Rosenberg has this article today in The Miami Herald.

Today in The Los Angeles Times, Carol J. Williams reports that "Evidence against terrorism suspect barred at Guantanamo trial; A military judge says some statements by Salim Ahmed Hamdan, a driver for Osama bin Laden, were made in 'highly coercive' settings; It could set a standard for other cases."

The Washington Post contains a front page article headlined "Guantanamo Judge Blocks Use of Some Statements; 'Highly Coercive' Conditions Are Cited."

The New York Times reports that "Military Trial Begins for Guantanamo Detainee."

From National Public Radio, today's broadcast of "Morning Edition" contained an audio segment entitled "First Guantanamo War Crimes Trial Begins" (featuring Carol Rosenberg), while yesterday evening's broadcast of "All Things Considered" contained an audio segment entitled "Expert Weighs In On Guantanamo Trial."

And yesterday evening's broadcast of the PBS program "The NewsHour with Jim Lehrer" contained a segment entitled "Gitmo Trial Begins, but Questions Loom Over Detainee Legal Process" (transcript with links to audio and video) featuring Neal Katyal and Andrew McBride.
Posted at 09:25 AM by Howard Bashman



"Rules for Guantanamo Bay proceedings are still unclear; Atty. Gen. Michael B. Mukasey calls on Congress to pass legislation on the matter; Democrats' response suggests that rules for deciding who can be held and for how long are unlikely to be made soon": David G. Savage has this article today in The Los Angeles Times.

Today in The New York Sun, Josh Gerstein has an article headlined "Mukasey: Bar Guantanamo Detainees From U.S."

From National Public Radio, today's broadcast of "Morning Edition" contained an audio segment entitled "Mukasey Urges Legislation For Guantanamo Trials," while yesterday evening's broadcast of "All Things Considered" contained an audio segment entitled "Mukasey Urges Congress To Create Detainee Rules."

And The Wall Street Journal today contains an editorial entitled "Mr. Mukasey's Modest Proposal."
Posted at 09:15 AM by Howard Bashman



"Hearing will tackle 'Don't ask, don't tell' military policy; Dems seek repeal as troop levels drop": USA Today contains this article today.
Posted at 08:55 AM by Howard Bashman


"Super Bowl Fine Is Voided; Court's Indecency Ruling Trumps FCC": This article appears today in The Washington Post.

The New York Times reports today that "Indecency Penalty Against CBS Is Rejected."

Jim Puzzanghera of The Los Angeles Times reports that "Court tosses FCC 'wardrobe malfunction' fine; The ruling releases CBS from paying a $550,000 penalty levied for Janet Jackson's breast-baring incident during the 2004 Super Bowl halftime show; It's also a blow to the FCC's indecency policy."

The Wall Street Journal reports that "CBS Wins Verdict on FCC Indecency Fine."

USA Today reports that "FCC loses appeal of 'wardrobe malfunction' fine." The newspaper also contains an editorial entitled "A split-second decision."

The Philadelphia Inquirer reports that "CBS fine for faulty wardrobe is voided."

The Philadelphia Daily News reports that "FCC wrong in CBS 'malfunction' fine."

And Shannon P. Duffy of The Legal Intelligencer reports that "3rd Circuit Tosses 'Wardrobe Malfunction' Fine Against CBS."

My earlier coverage of yesterday's Third Circuit ruling appears at this link.
Posted at 08:54 AM by Howard Bashman



"Siblings Support Greater Freedom for Hinckley": The Washington Post today contains an article that begins, "The siblings of presidential assailant John W. Hinckley Jr. told a federal judge in Washington yesterday that they do not view him as a danger to the community and believe he would benefit from obtaining a driver's license and spending more unsupervised time at their mother's home."
Posted at 08:40 AM by Howard Bashman


"A.C.L.U. Sues Alabama on Ballot Access": The New York Times contains this article today.

And The Birmingham News reports today that "ACLU lawsuit challenges Alabama voting practice."

Yesterday, the ACLU issued a news release headlined "ACLU Challenges Alabama Voter Disenfranchisement Laws In Court; Group Says 'Moral Turpitude' Interpretation Violates Constitutional Right To Vote." You can access the complaint initiating suit at this link.
Posted at 08:33 AM by Howard Bashman



"Why Dora the Explorer Can't Come To Your Kid's Birthday Party: The Issue Is Trademark Infringement; Invite SpongeBob, Get SquishyGuy." This front page article appears today in The Wall Street Journal (click here to enable free access via Google News).
Posted at 08:21 AM by Howard Bashman


"Justice Dept. Balks in Case of Reporter": Today in The New York Sun, Josh Gerstein has an article that begins, "The Justice Department agreed earlier this year to join in questioning of a Washington Times reporter about alleged leaks of grand jury information in a Chinese espionage case, but balked and asked for a delay recently as the time for the journalist's grilling drew near, according to court papers unsealed yesterday."
Posted at 08:14 AM by Howard Bashman


Available online from law.com: Shannon P. Duffy reports that "3rd Circuit Strikes Down Law Criminalizing Sale of Animal Cruelty Depictions." My earlier coverage of last Friday's en banc Third Circuit ruling appears at this link.

And David E. Brodsky, Timothy M. Haggerty, and Tamara J. Britt have an essay entitled "At the Border, Your Laptop Is Wide-Open."
Posted at 08:05 AM by Howard Bashman



Monday, July 21, 2008

"Louisiana seeks change on death penalty": At "SCOTUSblog," Lyle Denniston has this post on the rehearing petition that the State of Louisiana filed today in Kennedy v. Louisiana.

And The Times-Picayune of New Orleans provides a news update headlined "Jeff DA will fight to execute child rapists."
Posted at 06:20 PM by Howard Bashman



Refusing to look beyond statutory text to also consider legislative history, the Fifth Circuit creates a circuit split regarding whether a plaintiff must prove an adverse effect on competition to establish a violation of Packers and Stockyards Act sections 202(a)-(b): Today's ruling, by a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, can be accessed here. Today's majority opinion acknowledges that it creates a circuit split and that "the great weight of authority in our sister Circuits is to the contrary." Presumably those advocates desperate for additional U.S. Supreme Court face-time will now begin scurrying to represent the losing parties in the case.
Posted at 05:35 PM by Howard Bashman


"Justice Dept. Agreed to Grill Reporter, Then Balked": Josh Gerstein of The New York Sun has a news update that begins, "Over the government's objections, a federal judge is making public details of the Justice Department's internal deliberations about whether to force a Washington Times reporter to identify his sources for reporting about planned charges in a Chinese espionage case."
Posted at 05:17 PM by Howard Bashman


"U.S. Judge Charles L. Brieant dies, ruled in many notable cases": The News Journal of Westchester, New York provides this update.
Posted at 04:25 PM by Howard Bashman


"JQC recommends public reprimand for appeal judge": Saturday's edition of The St. Petersburg Times contained an article that begins, "No Florida judge ever has been disciplined for something he wrote in a court opinion, but a divided Judicial Qualifications Commission panel Friday recommended a public reprimand for 1st District Court of Appeal Judge Michael E. Allen."

Saturday's edition of The Pensacola News Journal contained an article headlined "Board chides judge; Panel finds that Allen's criticism harmed judiciary."

And The Associated Press reports that "Panel Recommends Florida Judge Be Reprimanded; Appellate judge Michael Allen insinuated a judge was corrupt."

Last Friday, the Hearing Panel of Florida's Judicial Qualifications Commission submitted its Findings, Conclusions and Recommendations to the Supreme Court of Florida. And today, the Supreme Court of Florida issued this scheduling order governing further proceedings in the case.

I wrote about this case in the May 14, 2007 installment of my "On Appeal" column for law.com, headlined "When Should a Judge Face Discipline for What an Opinion Says?"
Posted at 04:00 PM by Howard Bashman



"Habeas Corpus And Bin Laden's Driver": This audio segment (RealPlayer required) featuring Dahlia Lithwick appeared on today's broadcast of NPR's "Day to Day."
Posted at 03:50 PM by Howard Bashman


"Mukasey Asks Congress to Write New Rules on Detainees": The Washington Post provides this news update.

The New York Times has a news update headlined "Administration Calls for Action on Detainees."

And Lara Jakes Jordan of The Associated Press has an article headlined "Mukasey: Congress should set rules for detainees."

C-SPAN has posted video of the Attorney General's remarks at this link (RealPlayer required).
Posted at 03:38 PM by Howard Bashman



"Court tosses FCC 'wardrobe malfunction' fine; The ruling releases CBS from paying a $550,000 penalty levied for Janet Jackson's breast-baring incident during the 2004 Super Bowl halftime show; It's also a blow to the FCC's indecency policy": Jim Puzzanghera of The Los Angeles Times has this news update.

The New York Times has a news update headlined "Court Throws Out Super Bowl Fine."

Reuters reports that "Court overturns CBS fine over Janet Jackson."

And Bloomberg News reports that "CBS Wins Court Ruling Throwing Out $550,000 FCC Fine."

My earlier coverage of today's Third Circuit ruling appears at this link.
Posted at 03:32 PM by Howard Bashman



"Some evidence excluded as war trial opens": Carol Rosenberg of The Miami Herald has a news update that begins, "A military judge without explanation on Monday excluded from the trial of Osama bin Laden's driver any FBI or other interrogations of him at Bagram Air Base in Afghanistan, then began seating a military jury in the first U.S. war crimes tribunal since World War II."

The Washington Post has a news update headlined "Detainee's Trial in Military System Begins."

And The Associated Press reports that "Former bin Laden driver pleads not guilty."
Posted at 03:20 PM by Howard Bashman



"Court tosses FCC 'wardrobe malfunction' fine": The Associated Press provides a report that begins, "A federal appeals court on Monday threw out a $550,000 indecency fine against CBS Corp. for the 2004 Super Bowl halftime show that ended with Janet Jackson's breast-baring 'wardrobe malfunction.'"

You can access today's ruling of the U.S. Court of Appeals for the Third Circuit at this link.

According to the majority opinion, written by Third Circuit Chief Judge Anthony J. Scirica, "The sanctions stem from CBS's live broadcast of the Super Bowl XXXVIII Halftime Show, in which two performers deviated from the show's script resulting in the exposure of a bare female breast on camera, a deceitful and manipulative act that lasted nine-sixteenths of one second. CBS transmitted the image over public airwaves, resulting in punitive action by the FCC."

The opinion holds that the Federal Communication Commission's apparently new policy of treating fleeing images of indecency more harshly than fleeting indecent utterances to be arbitrary and capricious under the Administrative Procedure Act. The opinion's conclusion begins:

In finding CBS liable for a forfeiture penalty, the FCC arbitrarily and capriciously departed from its prior policy excepting fleeting broadcast material from the scope of actionable indecency. Moreover, the FCC cannot impose liability on CBS for the acts of Janet Jackson and Justin Timberlake, independent contractors hired for the limited purposes of the Halftime Show, under a proper application of vicarious liability and in light of the First Amendment requirement that the content of speech or expression not be penalized absent a showing of scienter."
The majority opinion remands the matter to the FCC for further proceedings. Circuit Judge Marjorie O. Rendell dissents from this aspect of the ruling, arguing that the FCC remains free to declare its future policy applicable to fleeting indecent images without exposing CBS to the burden and expense of further administrative proceedings in this case.
Posted at 10:45 AM by Howard Bashman


"Historic first terror trial opens at Guantanamo Bay, Cuba; Hamdan case tests special courts for 'illegal enemy combatants'": Warren Richey has this article today in The Christian Science Monitor.

Yesterday in The Miami Herald, Carol Rosenberg had an article headlined "Much to learn about Hamdan, whose trial begins Monday."

The Washington Post reports today that "Detainee's Trial in Military System Begins Today."

And USA Today reports that "Jury selection today in Gitmo trial; Bin Laden aide may face life in prison."
Posted at 08:37 AM by Howard Bashman



"U.S. Supreme Court Justices John Paul Stevens and Antonin Scalia spoke at the Seventh Circuit Court of Appeals Judicial Conference": You can view this past Saturday's broadcast of C-SPAN's "America & the Courts" by clicking here (RealPlayer required).
Posted at 08:14 AM by Howard Bashman


Available online from law.com: Tony Mauro reports that "Law Professor Challenges Tale About Blackmun and Race; George Mason professor's article addresses popular conceptions about late Supreme Court justice's 'Flood v. Kuhn' decision." Law Professor Ross E. Davies has made his article, titled "A Tall Tale of the Brethren" (abstract with links for download), available for download via SSRN.

And an article reports that "Lawyer Wins Lengthy Fee Fight With Former Client at Texas Supreme Court."
Posted at 08:05 AM by Howard Bashman



Sunday, July 20, 2008

"Lawsuit Threatens Sarbanes-Oxley Act": Today in The Washington Post, personal finance columnist Jane Bryant Quinn has this essay about a case now pending before the U.S. Court of Appeals for the D.C. Circuit.
Posted at 09:24 PM by Howard Bashman


"Right the Ship or Hold the Course? Attorney General Works More Toward Justice Department Stability Than Reform." This article appears today in The Washington Post.

And The Los Angeles Times today contains an article headlined "William Mercer's charmed life at Justice; The Montanan is among the few U.S. attorneys who may survive all eight years under Bush, despite brushes with scandal."
Posted at 09:17 PM by Howard Bashman



"Some Legal Activists Have Hearts Set on 'True Liberal'": Today in The Washington Post, Robert Barnes and Kevin Merida have an article that begins, "It could be seen as the sincerest form of flattery: Ask some activists on the left the kind of Supreme Court justice they would like to see a President Obama appoint, and the name you hear most is the same justice they most often denounce."
Posted at 09:15 PM by Howard Bashman


"Justice Department broadening investigation of Kent; Sale of home and gift reporting being examined": The Houston Chronicle today contains a front page article that begins, "A Justice Department investigation into the sexual conduct of U.S. District Judge Samuel Kent has expanded to include allegations that he accepted but failed to report gifts and also sold his home in a deal arranged by a lawyer with dozens of cases in his court, Kent's own attorney and other lawyers have confirmed."
Posted at 09:50 AM by Howard Bashman


Saturday, July 19, 2008

"Serious YouTube test of copyright law": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "A woman who posted a home video on YouTube of her 13-month-old son dancing to Prince's 'Let's Go Crazy' squared off Friday against entertainment giant Universal Music Corp. in a federal court case that tests copyright law."

Today in The San Jose Mercury News, Howard Mintz reports that "Mom fights music giant; S.J. court considers key copyright case."

And at c|net News.com's "Digital Media" blog, Greg Sandoval has a post titled "Mom continues to chase Prince over 'fair use'" linking to the video clip in question.
Posted at 11:22 PM by Howard Bashman



"How reliable is DNA in identifying suspects? A discovery leads to questions about whether the odds of people sharing genetic profiles are sometimes higher than portrayed; Calling the finding meaningless, the FBI has sought to block such inquiry." Jason Felch and Maura Dolan will have this lengthy article Sunday in The Los Angeles Times.
Posted at 11:00 PM by Howard Bashman


"Whale Advocates Gain Victory; Decision Declining to Order Review of Ship Traffic Is Overturned": This article published today in The Washington Post reports on a ruling that the U.S. Court of Appeals for the D.C. Circuit issued yesterday.
Posted at 10:52 PM by Howard Bashman


"Ruling Gives South Dakota Doctors a Script to Read; Women Seeking Abortion Must Be Told About 'Unique Living Human Being'": Sunday's edition of The Washington Post will contain this article.
Posted at 10:44 PM by Howard Bashman


"Gitmo Go-Ahead: The men who planned the 9/11 attack will finally face justice." This editorial appears today in The Wall Street Journal.
Posted at 10:32 PM by Howard Bashman


"Alan Gura: How a Young Lawyer Saved the Second Amendment." James Taranto has this "Weekend Interview" feature today in The Wall Street Journal.

And The Washington Post today contains an article headlined "Having Toppled D.C. Ban, Man Registers Revolver."
Posted at 10:30 PM by Howard Bashman



"Detaining Mr. Marri: The Supreme Court must reverse a federal appeals court decision last week that grants the president sweeping power to deprive anyone of their freedom." This editorial will appear Sunday in The New York Times.
Posted at 10:15 PM by Howard Bashman


"Guns ruling spawns legal challenges by felons": Mark Sherman of The Associated Press provides this report.
Posted at 06:10 PM by Howard Bashman


"Federal law on animal cruelty videos struck down; Overturning a Virginia man's 2005 conviction, a U.S. appeals court says that depictions of dogfighting and other acts are protected by the 1st Amendment": David G. Savage has this article today in The Los Angeles Times.

My earlier coverage of yesterday's en banc Third Circuit ruling appears at this link.
Posted at 01:08 PM by Howard Bashman



"U.S. Is Alone in Rejecting All Evidence if Police Err": Today in The New York Times, Adam Liptak has this article, the latest installment in his "American Exception" series.
Posted at 01:04 PM by Howard Bashman


"Felons Seeking Bush Pardon Near a Record": Charlie Savage has this article today in The New York Times.
Posted at 01:00 PM by Howard Bashman


Friday, July 18, 2008

Another federal appellate court holds that the crime of aggravated identity theft requires proof that the defendant knew that the means of identification belonged to another person: The U.S. Court of Appeals for the First Circuit, in a ruling that you can access here, becomes the second federal appellate court to so hold in two days.

Yesterday, in a ruling that you can access here, the majority on a divided three-judge Ninth Circuit panel reached the same result. Interestingly, today's First Circuit ruling was written by a senior Ninth Circuit judge sitting by designation.
Posted at 09:15 PM by Howard Bashman



"State Supreme Court narrows probable-cause grounds in pot case; Law-enforcement officers who smell marijuana coming from a vehicle can't arrest all of the occupants, the state Supreme Court ruled Thursday": This article appears today in The Seattle Times.

And The Seattle Post-Intelligencer reported today that "Pot smell isn't cause to arrest everyone in a car; Police need more evidence, state justices say."

You can access yesterday's ruling of the Washington State Supreme Court at this link.
Posted at 08:55 PM by Howard Bashman



By a vote of 10 to 3, the en banc U.S. Court of Appeals for the Third Circuit holds unconstitutional a federal law criminalizing the sale of creation, sale, or possession of depictions of animal cruelty: You can access today's en banc ruling at this link.

According to the majority's opinion, the "case is the first prosecution in the nation under [the federal statute in question] to proceed to trial, and this appeal represents the first substantive constitutional evaluation of the statute by a federal appellate court."

The majority opinion, written by Circuit Judge D. Brooks Smith, begins:

The Supreme Court has not recognized a new category of speech that is unprotected by the First Amendment in over twenty-five years. Nonetheless, in this case the Government invites this Court to take just such a step in order to uphold the constitutionality of 18 U.S.C. sec. 48 and to affirm Robert Stevens' conviction. For the reasons that follow, we decline the Government's invitation. Moreover, because we agree with Stevens that 18 U.S.C. sec. 48 is an unconstitutional infringement on free speech rights guaranteed by the First Amendment, we will vacate his conviction.
Back in October 2006, The Pittsburgh Post-Gazette had an article headlined "Dog fight videos called free speech" reporting on the oral argument of the appeal before the original three-judge Third Circuit panel. It appears that the Third Circuit took the case en banc before that three-judge panel issued any ruling. And in January 2005, The Associated Press reported on the trial of the case in an article headlined "Dogfight video seller on trial for cruelty; Virginia man is first charged under 1999 federal statute."

In related coverage, a little over one year ago, Adam Liptak of The New York Times had an article headlined "First Amendment Claim in Cockfight Suit." Liptak's new beat for The NYTimes is the U.S. Supreme Court, which is where the case that the en banc Third Circuit decided today is likely heading next.
Posted at 03:15 PM by Howard Bashman



"In this appeal we clarify the extent to which the Federal Food Drug and Cosmetic Act of 1938 permits the Food and Drug Administration to regulate a common practice of pharmacies known as 'compounding.'" So begins an opinion that the U.S. Court of Appeals for the Fifth Circuit issued today.

As the opinion goes on to explain, "Drug compounding is the process by which a pharmacist combines or alters drug ingredients according to a doctor's prescription to create a medication to meet the unique needs of an individual human or animal patient."
Posted at 03:00 PM by Howard Bashman



Immigration judge's statement on the record that "[t]he 9th Circuit does not comply with Supreme Court law with regard to asylum" proves not to be a successful strategy for achieving affirmance in the Ninth Circuit: The U.S. Court of Appeals for the Ninth Circuit issued this ruling today.
Posted at 02:40 PM by Howard Bashman


"Judge: 'World's eyes on Guantanamo'; Lawyers: no appeal now." Lyle Denniston has this post at "SCOTUSblog."

You can access at this link the opinion that the U.S. District Court for the District of Columbia issued today in Hamdan v. Gates.
Posted at 02:30 PM by Howard Bashman



"Government says it can hold captured teen fighters": The Associated Press provides a report that begins, "The Bush administration is telling a federal appeals court that it has the authority to detain a Canadian who was captured in Afghanistan when he was 15 and is accused of killing a U.S. soldier."
Posted at 02:20 PM by Howard Bashman


D.C. Circuit holds, for purposes of an employment discrimination claim based on disability asserted under the federal Rehabilitation Act, that engaging in sexual relations qualifies as a major life activity: Two judges on the three-judge panel joined in today's ruling, while another dissented on other grounds.
Posted at 12:03 PM by Howard Bashman


"Bin Laden driver is 1st test of Gitmo trials": The Associated Press provides this report.
Posted at 11:50 AM by Howard Bashman


"Ashcroft Testifies on Interrogation Policy; Letter of Law Was Followed, He Says": This article appears today in The Washington Post. And Dana Milbank's "Washington Sketch" column is headlined "John Ashcroft, Riding Back on a White Horse."
Posted at 10:17 AM by Howard Bashman


"State Supreme Court gives new protection to endangered species; Commercial interests may be liable for unforeseen losses of wildlife, unanimous court rules": Maura Dolan has this article today in The Los Angeles Times.

You can access yesterday's ruling of the Supreme Court of California at this link.
Posted at 10:10 AM by Howard Bashman



"Gun Registrations Off To Slow Start in D.C.; One Application Received on First Day": This article appears today in The Washington Post, along with an article headlined "Why a New Revolver Is Still Out of Reach: City's One Dealer Has Inactive License."

The Washington Times reports today that "District begins licensing pistols; Appeal victor turned away."

And USA Today contains an article headlined "No rush to register handguns in D.C.; Emergency law in effect after justices toss ban."
Posted at 09:35 AM by Howard Bashman



"Riviera Beach now can enforce 'saggy pants' law; Fixing a legal glitch means police can enforce ordinance": The South Florida Sun-Sentinel contains this article today.
Posted at 09:20 AM by Howard Bashman


"Rulings Clear Military Trial of a Detainee": This article appears today in The New York Times.

The Washington Post reports today that "Judge Says Detainee's Trial Will Proceed."

Carol J. Williams of The Los Angeles Times reports that "First Guantanamo war-crimes trial set to begin; A federal judge rejects defense appeals to postpone the proceedings -- slated to start Monday -- against Osama bin Laden's former driver, Salim Ahmed Hamdan."

Warren Richey of The Christian Science Monitor reports that "Judge allows Hamdan military trial to go forward; It's a win for the Bush administration, which insists that Guantánamo proceedings are necessary to fight the war on terror."

And The Washington Times reports that "Judge allows start of military tribunals."
Posted at 09:14 AM by Howard Bashman



"Judge Tells Reporter To Explain Spy Story": The Washington Post today contains an article that begins, "A federal judge in California has ordered Washington Times reporter Bill Gertz to appear in court next week to explain why he needs to protect the identity of confidential sources he used in writing an article about a spy case, and why he considered the subject newsworthy."
Posted at 09:10 AM by Howard Bashman


"Texas Turns Aside Pressure on Execution of 5 Mexicans": This article appears today in The New York Times.
Posted at 08:25 AM by Howard Bashman


Unless you're a law blogger, that is: Marcia Coyle of The National Law Journal has a report headlined "D.C. Circuit: Sleeping Is 'Major Life Activity.'"
Posted at 08:00 AM by Howard Bashman


"What the Past Term Reveals About the Roberts Court: Evidence that the Court Is Disturbingly Elitist and Anti-Democratic." Edward Lazarus has this essay online at FindLaw.
Posted at 07:58 AM by Howard Bashman


Thursday, July 17, 2008

Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained an audio segment entitled "Ruling Allows First Guantanamo Trial To Proceed" featuring Nina Totenberg.

And yesterday evening's broadcast of "All Things Considered" contained an audio segment entitled "Paul Goldstein's A Patently Thrilling Legal Drama" reviewing Law Professor Paul Goldstein's new novel, "A Patent Lie."
Posted at 09:20 PM by Howard Bashman



"Court says jury selection was racially tainted, orders new trial": Bob Egelko of The San Francisco Chronicle has a news update that begins, "An Oakland man who was convicted of stabbing his mother in 1997 and sentenced to life in prison was granted a new trial Thursday by a federal appeals court, which said the prosecutor removed at least one black juror for racial reasons."

You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 09:03 PM by Howard Bashman



"Trial of bin Laden's driver can proceed, judge rules": Michael Doyle of McClatchy Newspapers has this report.

The New York Times provides a news update headlined "Judge Refuses to Postpone Trial of Bin Laden's Driver."

The Washington Post has a news update headlined "Judge Refuses to Halt Guantanamo Detainee's Military Trial."

And The Los Angeles Times has a news update headlined "Trial of Guantanamo detainee can start, judge rules; Salim Ahmed Hamdan, a former driver for Osama bin Laden, would be the first Guantanamo prisoner to come before a military tribunal; His lawyers are challenging the forum's constitutionality."
Posted at 05:00 PM by Howard Bashman



"Turnout Low on First Day of Handgun Registration": The Washington Post provides this news update. First in line was Dick A. Heller, who succeeded in striking down D.C.'s handgun ban but who failed in his first attempt today at registering his handguns.
Posted at 04:45 PM by Howard Bashman


"Today we join the D.C. Circuit in holding that the crime of aggravated identity theft requires proof that, among other things, the defendant knew that the means of identification belonged to another person. It is not enough to prove only that the defendant knew he was using a false document." So begins the majority opinion that a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued today.
Posted at 03:11 PM by Howard Bashman


"US judge OKs first Guantanamo Bay detainee trial": The Associated Press provides this report.

And at "SCOTUSblog," Lyle Denniston has a post titled "Judge refuses to delay war crimes trial."
Posted at 01:20 PM by Howard Bashman



In case of Salim Ahmed Hamdan, Guantanamo military commission judge denies motion to dismiss charges and motion to reconsider ruling on personal jurisdiction: I have posted online these rulings here (motion to dismiss ruling) and here (personal jurisdiction ruling).

In the personal jurisdiction ruling, the military judge holds that the U.S. Supreme Court's recent ruling in Boumediene v. Bush does not mandate application of the equal protection component of the Fifth Amendment's Due Process Clause to Guantanamo proceedings.
Posted at 11:17 AM by Howard Bashman



Second Circuit condemns reopening of the evidence in a federal criminal trial at the prosecution's behest after counsel had delivered their summations, the trial judge had given the jury instructions on the law, and the jury had begun deliberating: The U.S. Court of Appeals for the Second Circuit issued this decision today.
Posted at 11:00 AM by Howard Bashman


"Judges, taxes may not make McCain's case": Bruce Bartlett has this essay today at Politico.com.
Posted at 10:55 AM by Howard Bashman


"Suspect's Work With Bin Laden Alleged; FBI Agent Testifies at Pretrial Hearing": This article appears today in The Washington Post.
Posted at 09:30 AM by Howard Bashman


"Court blocks Medi-Cal pharmacy payment cuts": Today in The San Francisco Chronicle, Bob Egelko has this article reporting on an order that the U.S. Court of Appeals for the Ninth Circuit issued last Friday.
Posted at 09:28 AM by Howard Bashman


"Bid to ban gay marriage will stay on ballot, California Supreme Court rules; Activists sought to remove Proposition 8, which if passed would limit marriage to opposite-sex couples": Maura Dolan has this article today in The Los Angeles Times.

Today in The San Francisco Chronicle, Bob Egelko reports that "Challenge tossed, gay marriage ban on ballot."

Howard Mintz of The San Jose Mercury News reports that "Court lets stand initiative on same-sex marriages; Now looks like voters will settle controversy."

And law.com reports that "Challenge to Calif. Gay Unions Measure Fails."
Posted at 09:24 AM by Howard Bashman



"Rampart revisited: A legal victory for three officers is a reminder that much of the scandal remains a costly mystery." The Los Angeles Times contains this editorial today.

My earlier coverage of Monday's Ninth Circuit ruling appears at this link.
Posted at 09:14 AM by Howard Bashman



"Court Orders U.S. to Halt Execution of 5 Mexicans": This article appears today in The Washington Post.

And The Houston Chronicle reports today that "Texas still plans to execute killer despite U.N. order."
Posted at 09:07 AM by Howard Bashman



"D.C. Tries to Finesse Gun Ruling": Columnist Marc Fisher has this essay today in The Washington Post.

And the newspaper also contains an op-ed by Glenn F. Ivey entitled "A New Chance to Curb Gun Violence."
Posted at 09:00 AM by Howard Bashman



"Administration Wanted Loyalist As Justice Dept. Legal Adviser; Top Officials Sought to Defend Interrogation Practices": This article appears today in The Washington Post.
Posted at 08:54 AM by Howard Bashman


"Citizen McCain: Does the Constitution prohibit John McCain -- who was born to two Americans in the Panama Canal Zone -- from becoming president?" Law Professor Michael I. Meyerson has this op-ed today in The New York Times.
Posted at 08:42 AM by Howard Bashman


"The Right to Know": The New York Times today contains an editorial that begins, "In the face of near hysterical opposition from the Bush administration, the Senate Democratic leadership intends to take up a proposed shield law to provide journalists with limited protection against being compelled to reveal confidential sources in federal court."
Posted at 08:37 AM by Howard Bashman


"Judges Are No Reason to Vote for McCain: The Republican candidate is not a judicial conservative." Libertarian Party presidential candidate Bob Barr has this op-ed today in The Wall Street Journal.
Posted at 08:33 AM by Howard Bashman


"Nichols trial move OK'd; Commission also settles suit with judge's widow": The Atlanta Journal-Constitution today contains an article that begins, "The Fulton County Commission on Wednesday approved moving the Brian Nichols murder trial to the Atlanta Municipal Court to help ensure a fair trial and settled a lawsuit with the widow of the judge he is accused of killing."
Posted at 08:25 AM by Howard Bashman


"Advocates Concerned About a Reporter's Court Appearance": Today in The New York Sun, Josh Gerstein has an article that begins, "A federal judge in California who has ordered a prominent reporter to divulge his confidential sources for an article about a spying investigation is now planning unusual and potentially open-ended questioning of the journalist's reporting techniques, prompting concern from First Amendment advocates."
Posted at 08:10 AM by Howard Bashman


Available online from law.com: An article reports that "Former SG Knocks Pro-Business Label for High Court."

Shannon P. Duffy reports that "3rd Circuit Upholds Removal of Christian Protesters at Gay Pride Event." My earlier coverage of the ruling appears at this link.

And in news from New Jersey, "Lawyer Faces Reprimand for Not Telling Clients He Botched Two Appeals."
Posted at 08:02 AM by Howard Bashman



Wednesday, July 16, 2008

"Bin Laden driver described as snitch": Carol Rosenberg of The Miami Herald has this news update, along with a news update headlined "Navy judge finds driver's charges constitutional." You can access the ruling at this link. Earlier, Rosenberg reported that "Driver testifies about abuse at Guantanamo."

The Associated Press provides reports headlined "FBI: Ex-driver helped try to track bin Laden" and "Canada won't seek return of Gitmo detainee."

The Washington Post reports today that "Detainee Describes Treatment; Lawyers for Another Captive Release Interrogation Tapes."

The New York Times today contains articles headlined "Detainee Challenges Guantanamo by Describing Life There" and "Blurry Peek at Questioning of a Guantanamo Inmate."

The Toronto Globe and Mail contains an article headlined "After day of making admissions, Khadr went silent."

The Toronto Star reports that "Khadr's pleas don't heal split."

And McClatchy Newspapers have articles headlined "Europeans join court pleas for halt to military commission trial" and "Interrogation video: teenage detainee pleaded for help."
Posted at 10:44 PM by Howard Bashman



"State high court refuses to remove same-sex marriage ban from ballot": Bob Egelko of The San Francisco Chronicle has this news update.

Maura Dolan of The Los Angeles Times has a news update headlined "California Supreme Court keeps anti-gay marriage initiative on ballot; Gay rights lawyers were trying to remove Proposition 8, which if passed would limit marriage to opposite-sex couples."

And The Associated Press reports that "Calif. court passes on suit over gay-marriage vote."
Posted at 05:28 PM by Howard Bashman



Available online from law.com: An article headlined "2nd Circuit Certifies Issue of Attorney Deceit" reports on this ruling issued yesterday.

Amaris Elliott-Engel reports that "Pa. High Court to Hear Kia Class Action Appeal."

In other news, "Attorney Argues His 'Witch' Comments About Judge Are Protected Speech; Fla. Supreme Court has called into question attorney's deal with State Bar that required a guilty plea in exchange for a public reprimand."

And an article reports that "Powell Goldstein's $2 Million Punitive Win to Face Challenge; Defense says Exxon ruling from U.S. Supreme Court could guide judge to reduce award."
Posted at 04:18 PM by Howard Bashman



"World Court: US should halt executions of Mexicans." The Associated Press provides this report.

And at "SCOTUSblog," Lyle Denniston has a post titled "World Court seeks to block 5 U.S. executions."
Posted at 04:05 PM by Howard Bashman



"Gitmo jail unwanted but likely to linger; U.S. hamstrung by shortage of options": James Oliphant has this article today in The Chicago Tribune.
Posted at 11:42 AM by Howard Bashman


"D.C. Gun Ban Is Out, But Regulations Stay": This article appears today in The Washington Post.

And The Washington Times reports today that "Council passes emergency bill to allow guns; Stiff rules control ownership."
Posted at 10:50 AM by Howard Bashman



"Court Backs Bush on Military Detentions": Adam Liptak has this article today in The New York Times.

And The Washington Post reports today that "Terrorism Suspect May Petition Civilian Court; Holding Accused Without Trial Is Upheld."
Posted at 10:45 AM by Howard Bashman



"Vision Insurer to Ask Justices to Restore Its Tax Exemption": The New York Times today contains an article that begins, "The country's largest eye-care insurance program plans to ask the Supreme Court to decide whether the Internal Revenue Service properly revoked its tax exemption in 2003, company executives said Tuesday."
Posted at 10:38 AM by Howard Bashman


"Condoms all round as annoying law dashed": The Sydney Morning Herald today contains an article that begins, "Rachel Evans and Amber Pike handed out condoms on the steps of Sydney's Federal Court yesterday - flushed with a ruling that struck out a World Youth Day law that made it a crime to annoy participants in the Catholic event."
Posted at 10:34 AM by Howard Bashman


"Facing Criticism, McCain Clarifies His Statement on Gay Adoption": This article appears today in The New York Times.
Posted at 10:24 AM by Howard Bashman


"Senate votes to repeal 1913 law; Bill to OK wedding of nonresident gays now goes to House": The Boston Globe today contains an article that begins, "The state Senate voted swiftly and unanimously yesterday to strike down a 95-year-old law that blocks gay and lesbian couples from most other states from being married in Massachusetts, drawing condemnation from Catholic Church leaders but delivering a victory for advocates who have fought for the repeal and who say that same-sex marriage has become an accepted part of the state's culture."

The New York Times reports today that "A 1913 Law Dies to Better Serve Gay Marriages."

And The Los Angeles Times reports that "Massachusetts Senate votes to end gay marriage restriction; The state House and governor are expected to support the move against a 1913 law that has been used to prevent some out-of-state couples from marrying."
Posted at 10:02 AM by Howard Bashman



"Exxon maintains it doesn't owe interest; Company files brief opposing plaintiffs' request": The Anchorage Daily News today contains an article that begins, "Exxon Mobil Corp. is fighting to avoid paying interest on the $507.5 million judgment the U.S. Supreme Court ordered it to pay for the Exxon Valdez oil spill."

And yesterday, "SCOTUSblog" had a post titled "Exxon says plaintiffs not entitled to interest."
Posted at 09:55 AM by Howard Bashman



"The Use of Executive Privilege Must Be Reined In: Problematic Claims of Privilege Regarding the U.S. Attorney Firings and Torture Policies." Douglas Kmiec has this essay online at FindLaw.
Posted at 09:45 AM by Howard Bashman


Tuesday, July 15, 2008

"Federal appeals court upholds $15-million civil award for Rampart police officers; The panel supports a jury's verdict that the LAPD and city violated the rights of the three men by arresting and charging them without adequate evidence during their division's corruption scandal": Maura Dolan has this article today in The Los Angeles Times.

My earlier coverage of yesterday's Ninth Circuit ruling appears at this link.
Posted at 11:58 PM by Howard Bashman



"Man loses bid in anthrax libel case; Court: Scientist who sued New York Times didn't prove that columns were malicious." The Richmond Times-Dispatch contains this article today.

And today in The New York Times, Neil A. Lewis reports that "Dismissal of Suit Against Times Is Upheld."

My earlier coverage of yesterday's Fourth Circuit ruling appears at this link.
Posted at 11:44 PM by Howard Bashman



"District Gun Bill Goes to Council; Officials Anticipate More Legal Action On Weapon Types": This article appears today in The Washington Post.
Posted at 11:30 PM by Howard Bashman


Available online from National Public Radio: Today's broadcast of "Day to Day" contained an audio segment entitled "S.D. Abortion Doctors Must Say: You're Ending A Life."

And this evening's broadcast of "All Things Considered" contained audio segments entitled "Court Says Enemy Combatant Can Challenge Status" (featuring Nina Totenberg); "Video Released Of Guantanamo Interrogation"; and "Mass. Senate Votes To Let Out-Of-State Gays Wed."

RealPlayer is required to launch these audio segments.
Posted at 11:14 PM by Howard Bashman



"3d Circuit: Anti-gay activists can demonstrate, not disrupt." Emilie Lounsberry of The Philadelphia Inquirer has a news update that begins, "Anti-homosexual activists arrested when they disobeyed police orders to move during Philadelphia's 2004 OutFest celebration had a right to demonstrate but not disrupt the coming-out festival, a federal appeals court ruled today."

You can access today's ruling of the U.S. Court of Appeals for the Third Circuit at this link.
Posted at 09:04 PM by Howard Bashman



"Ninth Circuit Judge M. Margaret McKeown to Chair National Codes of Conduct Committee": The U.S. Court of Appeals for the Ninth Circuit issued this news release today.
Posted at 08:50 PM by Howard Bashman


Seventh Circuit rejects Commerce Clause challenge to federal child pornography conviction where the defendant demonstrated that the pornography was videotaped at the defendant's home in Wisconsin, for his private viewing and possession: You can access today's ruling of the U.S. Court of Appeals for the Seventh Circuit at this link.
Posted at 08:40 PM by Howard Bashman


"Alleged Al-Qaeda Driver Testifies on Interrogation Tactics": The Washington Post has a news update that begins, "Salim Ahmed Hamdan, the alleged al-Qaeda driver who faces an historic military trial next week, testified Tuesday that a female interrogator elicited information from him using sexually suggestive behavior that was offensive to him."
Posted at 05:25 PM by Howard Bashman


"Senate Republican Conference Forum on the Judicial Confirmation Process": C-SPAN has posted online at this link (RealPlayer required) the video of this forum, which took place in Washington, DC yesterday.
Posted at 03:24 PM by Howard Bashman


"Court Backs Bush on Military Detentions": Adam Liptak of The New York Times has this news update.

James Vicini of Reuters reports that "Terror suspect can challenge U.S. detention."

The Associated Press provides a report headlined "Court: Enemy combatant can challenge designation."

And at "SCOTUSblog," Lyle Denniston has a post titled "Split decision on Al-Marri."
Posted at 03:08 PM by Howard Bashman



"[I]f the Government's allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant," but "assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government's allegations against him are true, al-Marri has not been afforded sufficient process to challenge his designation as an enemy combatant": So holds the en banc U.S. Court of Appeals for the Fourth Circuit today, by means of a per curiam opinion, dividing 5-4 on each of these two holdings.

In addition to the court's short per curiam opinion, seven of the nine judges participating in today's en banc ruling wrote separate opinions:

Judge Motz wrote an opinion concurring in the judgment, in which Judges Michael, King, and Gregory joined. Judge Traxler wrote an opinion concurring in the judgment, in Part II of which Judge Niemeyer joined. Judge Gregory wrote an opinion concurring in the judgment. Chief Judge Williams wrote an opinion concurring in part and dissenting in part, in which Judge Duncan joined. Judge Wilkinson wrote an opinion concurring in part and dissenting in part. Judge Niemeyer wrote an opinion concurring in the judgment in part and dissenting in part. Judge Duncan wrote an opinion concurring in part and dissenting in part. Judge Shedd did not participate in this case.
The entire en banc ruling totals 216 pages.

Back on June 11, 2007, a divided three-judge Fourth Circuit panel ruled 2-1 that al-Marri could not be held as an enemy combatant. This blog's coverage of that ruling appeared in various posts made on that date and in this post from the following day.
Posted at 12:50 PM by Howard Bashman



"[P]laintiff's suggestion that the Judiciary micro-manage advertising selection by military newspapers not only is unsupported by First Amendment doctrine, but also would interfere with the military's pursuit of its critical mission": So writes Circuit Judge Brett M. Kavanaugh, concurring in an opinion that the U.S. Court of Appeals for the D.C. Circuit issued today.
Posted at 12:32 PM by Howard Bashman


"Woman gives judge earful, lands in jail; Obscene outburst nets Sarah Muller contempt charge in jury selection": This article appears today in The Ocala (Fla.) Star-Banner.
Posted at 12:15 PM by Howard Bashman


"Video of Guantanamo Interrogation Released": The New York Times provides a news update that begins, "Video recordings released Tuesday showing interrogations of the only Canadian held at the Guantanamo Bay detention center in Cuba provided an unprecedented glimpse inside the compound."

CBC News provides a report headlined "'You don't care about me,' Khadr sobs in interview tapes; Tapes reveal interrogation by Canadian officials." You can access the video online by clicking here (Windows Media Player required).

The Toronto Globe and Mail provides a news update headlined "Omar Khadr: The interrogation; Video captures righteous indignation." The newspaper has posted the video at this link.

The Toronto Star provides a news update headlined "Khadr video released."

And The Associated Press reports that "Gitmo video offers glimpse of interrogations."
Posted at 11:54 AM by Howard Bashman



"Ballpark safety is about keeping your eye on the ball; Team liability limited big-time at ballpark": This article appears today in The Chicago Tribune.

According to the article, "A century of legal precedent from personal injury cases requires club owners to string netting in the most dangerous areas of the park but puts the onus on fans to protect themselves from bats and balls that aren't stopped by the nets. Lawmakers bolstered the principle further in Illinois, Colorado and Arizona with laws in the 1990s that underscored immunity from lawsuits for ballplayers and the clubs that employ them."
Posted at 11:44 AM by Howard Bashman



"Obama, McCain Would Look to Women, Hispanics for Supreme Court": Greg Stohr of Bloomberg News has this report.

Earlier this month, Law Professors Stuart M. Benjamin and G. Mitu Gulati posted online at SSRN a paper titled "Mr. Presidential Candidate: Whom Would You Nominate?" (abstract with links for download; via "Legal Theory Blog").
Posted at 11:30 AM by Howard Bashman



Programming note: Due to a work-related breakfast meeting in Philadelphia this morning, regular posting will not begin until somewhat later than usual today.
Posted at 07:10 AM by Howard Bashman


Monday, July 14, 2008

"Thomson wins appeal of software patent verdict": The Associated Press provides this report on a ruling that the U.S. Court of Appeals for the Federal Circuit issued today.

The current version of The AP's article erroneously attributes the ruling to the U.S. Court of Appeals for the Third Circuit.
Posted at 10:20 PM by Howard Bashman



"Bin Laden driver wants '9/11 braintrust' as defense witnesses": Carol Rosenberg of The Miami Herald has a news update that begins, "A Pentagon prosecutor warned Monday that testimony from an alleged al Qaeda kingpin, meant to clear Osama bin Laden's driver of war crimes, could help terrorists topple another American building." The newspaper has posted the defense motion at this link.

And The Washington Post has a news update headlined "Lawyers Plan to Call Detainee Witnesses in Terrorism Trial."
Posted at 09:05 PM by Howard Bashman



"District Leaders Announce New Handgun Regulations": The Washington Post provides this news update.

And The Associated Press reports that "DC to vote on gun bill prompted by court ruling."
Posted at 08:55 PM by Howard Bashman



"Appeals court upholds $15M award to former LA cops": The Associated Press provides a report that begins, "A federal appeals court on Monday upheld a jury's $15 million award to three officers who accused the Los Angeles Police Department of wrongly arresting them and making them scapegoats in a massive corruption scandal that resulted in the overturning of dozens of criminal convictions and millions of dollars in settlements."

You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 08:44 PM by Howard Bashman



"New York Times wins ruling in anthrax libel case": James Vicini of Reuters provides this report.

And The Associated Press reports that "Court rules for NY Times in anthrax libel case."
Posted at 08:35 PM by Howard Bashman



"Times Wins in Libel Suit Brought By Former Anthrax Suspect": Josh Gerstein of The New York Sun has this news update.

The U.S. Court of Appeals for the Fourth Circuit has, as of the time of this post, not yet made its rulings issued today freely accessible over that court's web site.

Update: I have posted a copy of today's Fourth Circuit ruling at this link.

Second update: The opinion is now freely available over the Fourth Circuit's web site at this link.
Posted at 02:44 PM by Howard Bashman



Seattle street performer "Magic Mike" to experience the magic that is rehearing en banc before the U.S. Court of Appeals for the Ninth Circuit: In January 2008, a divided three-judge Ninth Circuit panel issued a ruling that examined "the bounds of a city's authority to restrict expression in a public forum." As my post about that ruling explained, "The lawsuit was brought by street performer Michael Berger, a/k/a 'Magic Mike,' against the City of Seattle, which seeks to regulate the manner of his performances at a public forum known as the Seattle Center."

By a 2-1 vote, the majority upheld the regulations. But Circuit Judge Marsha S. Berzon dissented, writing:

The majority does not acknowledge how radically its holdings alter our law, creating a legal structure which will make it far easier to shut down discourse in public parks and other traditional public fora. Democracies survive and grow through public conversations among their citizens. For this reason, we have always viewed any limitations on speech in traditional public fora with extreme skepticism. [The majority's] opinion departs from that long tradition. I respectfully dissent.
Today, the Ninth Circuit issued an order granting rehearing en banc in the case.
Posted at 02:37 PM by Howard Bashman


"No rush to retire black robes on Supreme Court": Mark Sherman of The Associated Press provides this report. A related item is titled "Ages of Supreme Court justices and recent retirees."
Posted at 11:07 AM by Howard Bashman


"Woman sues over ongoing sanctions for sex as a teen; Consensual activity by a student shouldn't force her to move from home, plaintiff says": Bill Rankin has this article today in The Atlanta Journal-Constitution.

Earlier, the July 19, 2006 issue of Creative Loafing Atlanta contained an article headlined "Life in the shadows: Now facing a legal challenge, Georgia's war on sex offenders could punish minor violators while failing to focus on the worst ones."
Posted at 07:35 AM by Howard Bashman



Sunday, July 13, 2008

"Supreme Court Reporter Linda Greenhouse Retires": This audio segment (RealPlayer required) appeared on yesterday's broadcast of NPR's "Weekend Edition Saturday."
Posted at 08:50 PM by Howard Bashman


"Judge bars sexy tomes from Supermax inmate; Mailroom employees had withheld sexually explicit books and magazines from the prisoner under a 1996 law": The Denver Post today contains an article that begins, "Mark Jordan won't be receiving magazines or books that contain nudity or sexually explicit material now that a U.S. district judge has decided keeping Jordan from receiving those images in prison does not violate his constitutional rights. Jordan, a prisoner at the ultra-high security Supermax in Florence, sued the U.S. Bureau of Prisons and challenged the Ensign Amendment, a 1996 law designed to prevent federal prison employees from spending resources on delivering pornographic materials to inmates."

I have posted online at this link last Friday's ruling by Chief Judge Edward W. Nottingham of the U.S. District Court for the District of Colorado.
Posted at 08:37 PM by Howard Bashman



"State Supreme Court weighs parole for killers; Questions before the justices: When can a killer reenter society? How much authority should a governor have? Does a model prison record atone for a horrendous crime?" The Los Angeles Times contains this article today.
Posted at 08:10 PM by Howard Bashman


"Local lawsuit tests high court's ruling that lifts D.C. gun ban": This article appears today in The Pittsburgh Post-Gazette.
Posted at 07:55 PM by Howard Bashman


Available online from law.com: Marcia Coyle of The National Law Journal reports that "After High Court Ruling, Exxon Valdez Families Ask if They Can Collect Millions in Interest."

Pamela A. MacLean of The National Law Journal has an article headlined "Fearing Political Backlash, Judges Decide to Go Public; Nasty campaigns and California's gay marriage ruling lead to first forum of its kind."

And an article reports that "N.Y. Court Defines Test for Obtaining Identities Behind Online Posts; Ruling is a case of first impression in New York."
Posted at 07:38 PM by Howard Bashman



"2,691 Decisions": Today in The New York Times, Linda Greenhouse has an essay in the Week in Review section that begins, "Sometime during the first of my nearly 30 years reporting on the Supreme Court, a distinct visual image of a Supreme Court term took hold in my mind and never let go. The nine-month term was a mountain. My job was to climb it."

She will be participating in this "Talk to the Newsroom" feature during this upcoming week.
Posted at 07:22 PM by Howard Bashman



"Colorado Voters Will Be Asked When 'Personhood' Begins": The Washington Post today contains an article that begins, "A proposal to define a fertilized human egg as a person will land on Colorado's ballot this November, marking the first time that the question of when life begins will go before voters anywhere in the nation."
Posted at 07:04 PM by Howard Bashman


"Supreme Court finds history is a matter of opinions; Justices rely more than ever on the idea of constitutional 'original intent' in ruling on cases this year -- yet their decisions are still split": David G. Savage has this article today in The Los Angeles Times.
Posted at 08:40 AM by Howard Bashman


Saturday, July 12, 2008

"Can authorities spy on your private e-mail? Appeals court retains warrantless search in Berkeley case." This article appears today in The Cincinnati Enquirer.

And The Associated Press reports that "6th Circuit Rules Against Owner of Sexual Enhancement Pill Company in Fight Over E-Mail."

My earlier coverage of yesterday's en banc Sixth Circuit ruling appears at this link.
Posted at 11:24 AM by Howard Bashman



"Appeals court reinstates girl's strip-search case; 9th Circuit judges reinstate two other rulings in the case of Savana Redding, 13, who was searched for ibuprofen at school": Maura Dolan has this article today in The Los Angeles Times.

Today in The Arizona Daily Star, Howard Fischer reports that "Strip search of girl, 13, excessive, U.S. court says."

Reuters reports that "School rebuked for ibuprofen strip search."

And the ACLU has issued a news release titled "Federal Court Rules Strip Search Of 13-Year-Old Student For Ibuprofen Unconstitutional."

My earlier coverage of yesterday's 6-5 en banc Ninth Circuit ruling appears at this link.
Posted at 11:14 AM by Howard Bashman



Friday, July 11, 2008

On this evening's broadcast of NPR's "All Things Considered": The broadcast contained audio segments entitled "Some In D.C. Ready To Pull Trigger On Owning Gun" and "D.C. Drafts New Gun Law" (RealPlayer required).
Posted at 09:30 PM by Howard Bashman


"Judge Sides With Redskins in Suit Over Team Name": The Washington Post provides this news update.

You can access the redacted version of the recent ruling of the U.S. District Court for the District of Columbia at this link.
Posted at 08:30 PM by Howard Bashman



Ninth Circuit decides copyright dispute over the rights to the book "Lassie Come Home": You can access today's ruling at this link.
Posted at 03:00 PM by Howard Bashman


"Judge sides with Redskins in suit over team name": The Associated Press provides a report that begins, "A federal judge has sided with the Washington Redskins in a lawsuit brought by American Indians who consider the team's name racially offensive."

You can access the redacted version of the recent ruling of the U.S. District Court for the District of Columbia at this link.
Posted at 02:47 PM by Howard Bashman



En banc Ninth Circuit reinstates lawsuit challenging the constitutionality of a school's strip-search of a 13-year-old female honor roll student with no prior disciplinary problems based on the allegation she had given a classmate a prescription-strength ibuprofen tablet: The vote on the eleven-judge panel was 6-5 in favor of reinstating the lawsuit. You can access today's ruling at this link.

In September 2007, the majority on a divided three-judge Ninth Circuit panel held, in a ruling you can access here, that the search did not violate the student's constitutional rights. Three dissenters from today's en banc ruling share that view, while the other two dissenters agree that the search was unconstitutional but would find that the defendants are entitled to qualified immunity.

My earlier coverage of the case appears here and here.
Posted at 02:33 PM by Howard Bashman



D.C. Circuit affirms decision refusing to dismiss lawsuit seeking to hold Republic of Sudan and its Interior Ministry responsible for injuries caused in al Qaeda's simultaneous 1998 U.S. embassy bombings in Nairobi, Kenya, and Dar es Salaam, Tanzania: You can access today's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 12:50 PM by Howard Bashman


"Court tosses White House appeal on visitor logs": Pete Yost of The Associated Press has this report on a ruling that the U.S. Court of Appeals for the D.C. Circuit issued today.
Posted at 12:20 PM by Howard Bashman


"Court overturns Bush air pollution rule": The Associated Press provides a report that begins, "A federal appeals court has struck down an environmental rule that the Bush administration championed as crucial in protecting public health. The U.S. Court of Appeals for the District of Columbia Circuit unanimously rejected the Clean Air Interstate Rule, saying it found several flaws."

You can access today's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 12:15 PM by Howard Bashman



"A Hint of New Life to a McCain Birth Issue": Today in The New York Times, Adam Liptak has an article that begins, "In the most detailed examination yet of Senator John McCain's eligibility to be president, a law professor at the University of Arizona has concluded that neither Mr. McCain's birth in 1936 in the Panama Canal Zone nor the fact that his parents were American citizens is enough to satisfy the constitutional requirement that the president must be a 'natural-born citizen.'"

On Wednesday, Law Professor Gabriel J.Chin posted to SSRN his article titled "Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship" (abstract with link for download).
Posted at 10:35 AM by Howard Bashman



En banc Sixth Circuit vacates preliminary injunction limiting the federal government's ability to seize email communication without first providing the email account holder with prior notice and an opportunity to be heard: The majority in today's ruling, which issued by a 9-5 margin, holds that the plaintiff's "constitutional claim is not ripe for judicial resolution."

Circuit Judge Jeffrey S. Sutton wrote the majority opinion. Circuit Judge Boyce F. Martin, Jr. issued the dissenting opinion, which concludes:

While I am saddened, I am not surprised by today's ruling. It is but another step in the ongoing degradation of civil rights in the courts of this country. The majority makes much of the fact that facial challenges are no way to litigate the constitutional validity of certain laws. Yet our Supreme Court has no problem striking down a handgun ban enacted by a democratically elected city government on a facial basis. See Dist. of Columbia v. Heller, -- U.S. --, 2008 WL 2520816 (June 26, 2008). History tells us that it is not the fact that a constitutional right is at issue that portends the outcome of a case, but rather what specific right we are talking about. If it is free speech, freedom of religion, or the right to bear arms, we are quick to strike down laws that curtail those freedoms. But if we are discussing the Fourth Amendment's right to be free from unreasonable searches and seizures, heaven forbid that we should intrude on the government's investigatory province and actually require it to abide by the mandates of the Bill of Rights. I can only imagine what our founding fathers would think of this decision. If I were to tell James Otis and John Adams that a citizen's private correspondence is now potentially subject to ex parte and unannounced searches by the government without a warrant supported by probable cause, what would they say? Probably nothing, they would be left speechless.
Judge Martin was the author of the three-judge panel's decision in this case, which affirmed in large measure the preliminary injunction in question.

My earlier coverage of the three-judge panel's ruling from June 2007 can be accessed here. And at this link, the Electronic Frontier Foundation provides access to the appellate briefs originally filed in the case.
Posted at 10:23 AM by Howard Bashman



"No Right to Mezuzot at Condos": Josh Gerstein has this article today in The New York Sun.

My earlier coverage of yesterday's Seventh Circuit ruling appears at this link.
Posted at 08:35 AM by Howard Bashman



"Detainees, as Lawyers, Test System of Tribunals": This article appears today in The New York Times.

Today in The Miami Herald, Carol Rosenberg reports that "Detainees say they're being denied legal tools; Alleged Sept. 11 mastermind Khalid Sheik Mohammed and others said Pentagon restrictions make it impossible to prepare their legal cases."

The Los Angeles Times reports that "9/11 plotters tell Guantanamo judge of legal woes; Self-described mastermind Khalid Shaikh Mohammed and another suspect, who are acting as their own lawyers, tell the judge they can't file motions or get pretrial documents translated."

And James Rowley of Bloomberg News reports that "Secrecy Rules Hobble Defense in War-Crimes Case, Lawyers Say."
Posted at 08:17 AM by Howard Bashman



"Florida high court OK's some porn for sex offenders; A sex-offender case from Miami prompted a Florida Supreme Court ruling that allows offenders on probation to possess certain pornography": The Miami Herald contains this article today.

You can access yesterday's ruling of the Supreme Court of Florida at this link.
Posted at 08:14 AM by Howard Bashman



"Judge will move Nichols trial; Building needed: Current one was site of some of the killings." This article appears today in The Atlanta Journal-Constitution.

And law.com reports that "As Jury Selection Resumes, Judge Wants Courthouse Shooting Case Moved; Bodiford gives county 10 days to get Nichols trial out of Fulton courthouse."
Posted at 08:07 AM by Howard Bashman



"'Spam King' to be sentenced; Two-day hearing starts Friday for man who sent 90 million e-mails": The Seattle Post-Intelligencer today contains an article that begins, "The lineup of people to testify in the sentencing of the 28-year-old so-called King of Spam is so long that it will require an unusual two-day hearing beginning Friday in federal court."
Posted at 08:02 AM by Howard Bashman


Thursday, July 10, 2008

"Guantanamo: Calling All Lawyers." This audio segment (RealPlayer required) appeared on this evening's broadcast of NPR's "All Things Considered."
Posted at 10:37 PM by Howard Bashman


Fourth Circuit rejects Eighth Amendment challenge to Virginia's method for lethal injection: Today's ruling issued by a 2-1 vote.

The Richmond Times-Dispatch provides a news update headlined "Appeals court backs Va. execution procedures."

And The Associated Press reports that "Virginia's method of lethal injection upheld."
Posted at 09:18 PM by Howard Bashman



"Justices restore sex charges in grave-digging case; Wisconsin Supreme Court overturns lower court, saying the implied intent of statutes forbid sex with a corpse": This article appears today in The Telegraph Herald of Dubuque, Iowa.

At the risk of sounding too much like Justice Oliver Wendell Holmes, Jr.'s opinion for the U.S. Supreme Court in Buck v. Bell, perhaps society would be better off if those who would engage in this type of conduct were only allowed to procreate with corpses.

My earlier coverage of yesterday's Wisconsin Supreme Court ruling appears at this link.
Posted at 03:24 PM by Howard Bashman



"Laughter at the Supreme Court: Yes, the justices tell lawyer jokes." Lee Ross has this article online at The Weekly Standard.
Posted at 03:00 PM by Howard Bashman


"The Fair Housing Act requires accommodation of handicaps but not religious beliefs and practices." The condominium association at a residential building in Chicago adopted a rule prohibiting owners from displaying signs that could be seen from the hallways on their doors. To the dismay of the person who chaired the committee that devised this rule, the rule was later construed to prohibit the affixing of a mezuzah to the outside doorframes of condominium units.

Today, the U.S. Court of Appeals for the Seventh Circuit issued a decision examining whether the condominium's rule, which is no longer in effect, violated the Fair Housing Act. By a 2-1 vote, the court answers "no" in a majority opinion written by Chief Judge Frank H. Easterbrook. Circuit Judge Diane P. Wood dissented.
Posted at 02:20 PM by Howard Bashman



"Detainees advised not to act as own lawyers; A Guantanamo judge warned the 9/11 terror suspects that he may not let them see top-secret evidence against them, even if they serve as their own attorneys": Carol Rosenberg has this article today in The Miami Herald.

And The Los Angeles Times reports today that "Judge urges 9/11 suspects to accept legal help; He says they will lose access to evidence. Both insist they were not bullied into firing their lawyers."
Posted at 12:03 PM by Howard Bashman



"Barney the purple torturer? The arranger of 'I Love You' is skeptical of the song's interrogation value." Bob Singleton has this op-ed today in The Los Angeles Times.
Posted at 12:00 PM by Howard Bashman


"The discipline of committing one's thoughts to paper not only promotes thoughtful consideration but also creates a surer path of communication with the reviewing court." So observes Seventh Circuit Judge Richard A. Posner in an opinion issued yesterday on behalf of a unanimous three-judge panel of that court, in the course of suggesting that "when a judge decides to impose an out-of-guidelines sentence--whether it is above or below the guidelines range--he write out his reasons rather than relying entirely on the transcript of his oral remarks to inform the reviewing court of his grounds."
Posted at 11:54 AM by Howard Bashman


"Judge Posner on Attorney's Fees to Defendants ": William Patry has this post today at "The Patry Copyright Blog."

You can access yesterday's ruling of the U.S. Court of Appeals for the Seventh Circuit at this link.
Posted at 11:34 AM by Howard Bashman



Another Ninth Circuit victory for Americans with Disabilities Act accessibility crusader Jarek Molski: The U.S. Court of Appeals for the Ninth Circuit issued this ruling yesterday.

And on Tuesday of this week, Metropolitan News-Enterprise reported that "Disability Activist Wins One Case, Loses Another in C.A.; Panel Rules in Latest Cases Brought by Prolific Plaintiff Molski."
Posted at 11:21 AM by Howard Bashman



"Court voids deadline for filers for president": Today in The Arizona Daily Star, Howard Fischer has an article that begins, "Arizona's early-June deadline for independent presidential candidates to get on the general-election ballot is illegal, a federal appellate court ruled Wednesday. In a unanimous decision, the 9th U.S. Circuit Court of Appeals accepted the arguments by an attorney for Ralph Nader that the deadline, which applies only to those not affiliated with major parties, is unfair."

You can access yesterday's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 11:14 AM by Howard Bashman



"Senate Approves Bill to Broaden Wiretap Powers": The New York Times contains this article today.

The Washington Post reports today that "Obama Joins Fellow Senators in Passing New Wiretapping Measure."

USA Today reports that "Senate OKs surveillance revamp; FISA bill will protect telecoms."

And from National Public Radio, today's broadcast of "Morning Edition" contained an audio segment entitled "Senate Approves Hotly Contested FISA Bill," while yesterday evening's broadcast of "All Things Considered" contained audio segments entitled "Senate OKs FISA Bill, Immunity For Telecom Firms" and "New FISA Bill Dramatic Departure From Old Law." RealPlayer is required to launch these audio segments.
Posted at 08:45 AM by Howard Bashman



"Mukasey Vows Smooth Transition At Justice for Next Administration": This article appears today in The Washington Post.

And today's broadcast of NPR's "Morning Edition" contained an audio segment entitled "Mukasey Under Fire In Justice Department Hearing" (RealPlayer required).

C-SPAN has posted online the video of yesterday's Senate Judiciary Committee hearing at this link (RealPlayer required).
Posted at 08:33 AM by Howard Bashman



"Jury selection to restart for Nichols case; Judge refuses new delay for defense attorneys' arguments; Murder defendant claims he was insane during shootings": The Atlanta Journal-Constitution contains this article today.

And today's broadcast of NPR's "Morning Edition" contained an audio segment entitled "Delays Costly In Courthouse Slaying Suspect's Trial" (RealPlayer required).
Posted at 08:25 AM by Howard Bashman



"The Government and Your Laptop: Congress should pass a law that allows the government to look at data on laptops only when it has a reasonable suspicion about the specific person being searched." This editorial appears today in The New York Times.
Posted at 08:17 AM by Howard Bashman


"Build a Wiffle Ball Field and Lawyers Will Come": And not in order to play Wiffle ball, according to this article published today in The New York Times.
Posted at 08:03 AM by Howard Bashman


"The Era of Big Punitive Damage Awards Is Not Over: The Exxon Valdez case won't count for much without state tort reforms." Ted Frank has this op-ed today in The Wall Street Journal.
Posted at 07:58 AM by Howard Bashman


In commentary available online from FindLaw: Sherry F. Colb has an essay entitled "The U.S. Court of Appeals for the Eighth Circuit Approves An 'Informed Consent' Requirement for Abortions: The Slippery Quality of Statutory Definitions."

And Steve Sanders has an essay entitled "The Case for a Right of Marriage Recognition: Why Fourteenth Amendment Due Process Should Protect Same-Sex Couples Who Change States."
Posted at 07:42 AM by Howard Bashman



"Constitutional Drift: Obama veers to the right, but does he need to take the Constitution with him?" Doug Kendall and Dahlia Lithwick have this jurisprudence essay online at Slate.
Posted at 12:55 AM by Howard Bashman


The Associated Press is reporting: Now available online are articles headlined "La. attorney general to appeal "'Angola 3' ruling"; "Tenn. man's murder retrial could hinge on DNA"; and "Atlanta courthouse shooting trial set to open."
Posted at 12:45 AM by Howard Bashman


Of corpse necrophilia is illegal, Supreme Court of Wisconsin holds: The Associated Press provides a report headlined "Court: Wisconsin law bans sex with dead bodies."

You can access Wednesday's ruling of the Supreme Court of Wisconsin at this link.
Posted at 12:35 AM by Howard Bashman



Wednesday, July 9, 2008

Altoona Curve 7, Trenton Thunder 2: My son and I were at Waterfront Park in Trenton, New Jersey this evening to watch the Trenton Thunder -- the AA Eastern League affiliate of the New York Yankees -- host the Altoona Curve -- the AA Eastern League affiliate of the Pittsburgh Pirates.

Although the home team lost, almost everyone in attendance gained a Phil Hughes bobblehead doll. Although Phil is not currently pitching for the Yankees, he is blogging.

You can access the box score of tonight's game at this link, while wraps are available here and here.
Posted at 11:50 PM by Howard Bashman



"The Gun Case: Eight Misses." Ross Guberman offers "eight writing errors in the gun-ban opinion and dissents."
Posted at 10:58 AM by Howard Bashman


In cases governed by version of ERISA law that precedes Congress's 2005 amendments, Second Circuit holds that cash balance defined benefit plans do not inherently result in an unlawful age-based reduction in the rate of benefit accrual: You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 10:48 AM by Howard Bashman


"Bush lawyers told to speed Guantanamo detention appeals": Marisa Taylor of McClatchy Newspapers has this report.

The Washington Times reports today that "Gitmo cases will be tried chronologically; Judge outlines hearing order."

Bloomberg News reports that "U.S. Can't Delay on 125 Guantanamo Detainee Cases, Judge Says."

At "SCOTUSblog," Lyle Denniston has a post titled "Sense of urgency on detainees."

And today in The Washington Post, columnist Ruth Marcus has an op-ed entitled "Free This Detainee."
Posted at 08:55 AM by Howard Bashman



"ACLU, Treasury in dispute over paying captives' lawyers; Civil liberties group ACLU is locked in a struggle with the Treasury Department over fees for top lawyers who are offering to help defend accused terrorists at Guantanamo": Carol Rosenberg has this article today in The Miami Herald.
Posted at 08:52 AM by Howard Bashman


"Report Urges Overhaul of the War Powers Law": The New York Times contains this article today.

The Washington Post reports today that "Ex-Secretaries Suggest New War Powers Policy; Commission Criticizes 1973 Resolution."

The Los Angeles Times reports that "New law is urged on war powers; A bipartisan panel wants Congress to play a bigger role when a president decides to send troops into combat."

And USA Today reports that "Panel urges overhaul of War Powers Act."
Posted at 08:40 AM by Howard Bashman



"FISA's Fetters: Concerns about the new foreign surveillance measure are overblown." This editorial appears today in The Washington Post.
Posted at 08:30 AM by Howard Bashman


"La. judge overturns ex-Black Panther's conviction": The Associated Press provides this report.

And late last month, ABCNews.com had a report headlined "After 36 Years in Solitary, Prisoner's Conviction Could Be Overturned; Judge Wants Ex-Black Panther's Murder Conviction Tossed, State Disagrees."
Posted at 08:27 AM by Howard Bashman



"Justice Breyer Is Among Victims in Data Breach Caused by File Sharing": This front page article appears today in The Washington Post.
Posted at 08:20 AM by Howard Bashman


"Warren J. Ferguson, Who Declared That N.B.A. Rule Violated Antitrust Laws, Dies at 87": The New York Times contains this obituary today.
Posted at 08:12 AM by Howard Bashman


"Facing Press Can Be Such a Trial, Stars Find When Leaving Court": This article appears today in The New York Times.
Posted at 08:07 AM by Howard Bashman


"Harmless Error?" Today in The New York Sun, Michael Rips has an op-ed that begins, "The federal court of appeals that affirmed Conrad Black's criminal conviction did so without ever addressing the constitutional argument that was central to his case."
Posted at 07:58 AM by Howard Bashman


"Winning and Losing in the Supreme Court: How the Recently-Concluded Supreme Court Term Bolstered Justice Kennedy's Power, But Undermined John McCain's Constitutional Credibility." Vikram David Amar has this essay online at FindLaw.
Posted at 07:54 AM by Howard Bashman


Tuesday, July 8, 2008

Available online from law.com: Pamela A. MacLean of The National Law Journal reports that "Judicial Advisers Line Up Behind Obama, McCain; Influential attorneys on both sides look to reshape federal bench."

And Shannon P. Duffy reports that "Splenda Awarded Injunction Against Generic Sweetener."
Posted at 11:33 PM by Howard Bashman



"Nichols' lawyers ask for shorter work week; Judge in Fulton Courthouse murder case says no": The Atlanta Journal-Constitution provides this news update.

And law.com reports that "Judge Rejects Final Bids to Delay Trial of Ga. Courthouse Shooter; Questions over defense motion to boot county prosecutors off the case and plan to move case won't stop voir dire."
Posted at 11:30 PM by Howard Bashman



Articles and papers of interest available for download via SSRN: Steven G. Calabresi and Sarah E. Agudo have posted an article titled "Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights are Deeply Rooted in American History and Tradition?" (abstract with link for download; via "Legal Theory Blog").

Thomas Colby has posted an article titled "Clearing the Smoke from Philip Morris v. Williams: The Past, Present, and Future of Punitive Damages" (abstract with links for download; via "Legal Theory Blog").

Paul Hughes has a paper titled "Not a Failed Experiment: Wilson-Saucier Sequencing and the Articulation of Constitutional Rights" (abstract with link for download; via "Legal Theory Blog").

And Larry Alexander and Saikrishna Prakash have an article titled "Tempest in an Empty Teapot: Why the Constitution Does Not Regulate Gerrymandering" (abstract with links for download; via "Legal Theory Blog").
Posted at 08:50 PM by Howard Bashman



"The question whether the equitable doctrine of laches may bar a claim for copyright infringement that was filed within the statute of limitations has generated a circuit split and is a question of first impression in this circuit." In a Scientology-related ruling issued today, the U.S. Court of Appeals for the Eleventh Circuit holds that "[o]nly in the most extraordinary circumstances will laches be recognized as a defense" to a claim for copyright infringement.
Posted at 08:30 PM by Howard Bashman


"Shocking Ruling From The Seventh Circuit: 'Less' Doesn't Mean 'More.'" Sean Costello has this post at the "Drug and Device Law" blog.

My earlier coverage of last month's Seventh Circuit ruling appears at this link.
Posted at 05:45 PM by Howard Bashman



"Court keeps cell tower backup rules on hold": The Associated Press has this report on a ruling that the U.S. Court of Appeals for the D.C. Circuit issued today.
Posted at 05:22 PM by Howard Bashman


"The Election and the Supreme Court--Possible Vacancies Ahead?" Doug Kmiec has this post at Slate's "Convictions" blog.
Posted at 04:22 PM by Howard Bashman


If the Chief Justice can quote Bob Dylan, then surely a D.C. Circuit Judge can quote Jimi Hendrix: And you don't have to look beyond the first line of D.C. Circuit Judge Janice Rogers Brown's opinion issued today for the lyric in question.
Posted at 04:08 PM by Howard Bashman


"US war crimes court to resume at Guantanamo": The Associated Press provides this report.

And Carol Rosenberg of The Miami Herald has a news update headlined "ACLU: Treasury Dept. is stonewalling Gitmo attorneys."
Posted at 03:55 PM by Howard Bashman



"McCain newly assertive on judicial philosophy": This article appears today at Politico.com.
Posted at 02:18 PM by Howard Bashman


"The (Chief) Justice League: Has Roberts really engineered a Supreme detente?" Lester Feder has this "Campaign Desk" item online at the Columbia Journalism Review.
Posted at 02:08 PM by Howard Bashman


"Abu-Jamal seeks new trial in Phila. officer's slaying": Today in The Philadelphia Inquirer, Emilie Lounsberry has an article that begins, "Pennsylvania death-row inmate Mumia Abu-Jamal has asked a federal appeals court to reconsider the decision that denied him a new trial in the 1981 slaying of Philadelphia Police Officer Daniel Faulkner."

My earlier coverage of the Third Circuit's ruling from March 2008 appears here and here.
Posted at 11:37 AM by Howard Bashman



May a criminal defendant who has chosen to represent himself at trial without the assistance of counsel elect, through disruptive conduct that causes him to be removed from the courtroom, to forfeit his ability to cross-examine adverse witnesses? The U.S. Court of Appeals for the Second Circuit, in a ruling issued today, suggests that this question is worthy of U.S. Supreme Court review.
Posted at 10:57 AM by Howard Bashman


"A Historian, a Lawyer, and the Heller Decision": Yesterday, Bloggingheads.tv posted online this diavlog consisting of a discussion between Jack Rakove and Eugene Volokh.

Rakove's recent Chicago Tribune op-ed about the case was entitled "Scalia's selective history."
Posted at 09:48 AM by Howard Bashman



"Judge sends rambling lawsuit back for a rewrite; Lawyers aren't particularly known for brevity, but Vancouver, Wash., lawyer Dean Browning Webb has taken wordiness to new extremes, according to a federal judge who ordered Webb to tighten his 465-page lawsuit": This article appeared last Friday in The Seattle Times.

And The Associated Press reports that "Wash. judge tells verbose lawyer to make it snappy."

I have posted online at this link the recent ruling of the U.S. District Court for the Western District of Washington.
Posted at 09:42 AM by Howard Bashman



"Scholars & Scribes Review the Rulings: The Supreme Court's 2007-2008 Term." The Heritage Foundation will be hosting this event beginning at 10 a.m. eastern time today. According to that organization's web site, video of the event (once it begins) can be viewed live, online using either RealPlayer or Windows Media Player.

Update: Now that the event has ended, you can access the video online, on-demand by clicking here (Windows Media Player required).
Posted at 09:20 AM by Howard Bashman



"Put War Powers Back Where They Belong": James A. Baker III and Warren Christopher have this op-ed today in The New York Times.
Posted at 09:14 AM by Howard Bashman


"Compromising the Constitution": The New York Times today contains an editorial arguing that "[t]he Senate should reject a bill this week that would needlessly expand the government's ability to spy on Americans and ensure that the country never learns the full extent of President Bush's unlawful wiretapping."

The newspaper also contains a related op-ed by Morton H. Halperin entitled "Listening to Compromise."
Posted at 09:12 AM by Howard Bashman



"State high court denies new trial for Iraq vet": Bill Rankin has this article today in The Atlanta Journal-Constitution. According to the article, "The grisly Muscogee County murder loosely inspired the movie, 'In the Valley of Elah.'"

You can access yesterday's ruling of the Supreme Court of Georgia at this link.
Posted at 08:54 AM by Howard Bashman



"Registry law called 'unfair to homeless'; Sex offenders are required to list an address, even if they don't have one": Today in The Atlanta Journal-Constitution, Bill Rankin has an article that begins, "Georgia's sex offender registry law should be struck down because it makes homelessness a crime, a lawyer told the state's highest court on Monday."
Posted at 08:45 AM by Howard Bashman


"Court Nominee Accused of Plagiarism Won't Withdraw": The Washington Post contains this article today.

And, as I previously noted in this post, last Friday in The New York Times, Adam Liptak had an article headlined "Copying Issue Raises Hurdle for Bush Pick."
Posted at 08:30 AM by Howard Bashman



"9/11 Families Lose Bid To Search For Remains": This article appears today in The New York Times.

And today in The New York Sun, Joseph Goldstein reports that "Judge Rules for City on Search for September 11 Victim Remains."

You can access yesterday's ruling of the U.S. District Court for the Southern District of New York at this link.
Posted at 08:10 AM by Howard Bashman



Available online from law.com: Tony Mauro reports that "Souter Causes Stir With Footnote in 'Exxon' Case; What did the justice mean with brief reference to Exxon paying for studies?"

And in other news, "Judge Calls Lawyers Greedy but Panel Approves Fees; 11th Circuit judges issue three separate opinions on reward for foster care case." My earlier coverage of last Thursday's Eleventh Circuit ruling appears at this link.
Posted at 07:52 AM by Howard Bashman



Monday, July 7, 2008

"Don't Trust Me on Guantanamo, Read This": Bloomberg News columnist Ann Woolner has this essay today.

And yesterday iin The Chicago Tribune, columnist Steve Chapman had an op-ed entitled "Truth and the Gitmo detainees."
Posted at 11:08 PM by Howard Bashman



"How will Supreme Court look?" Last Thursday in The Dallas Morning News, Carl Leubsdorf had an essay that begins, "John McCain calls the future shape of the federal judiciary 'one of the defining issues of this presidential election,' a point underscored by the recent spate of 5-4 Supreme Court decisions."
Posted at 11:05 PM by Howard Bashman


"Retiring Chief Justice says state's way to pick judges best": The Nashville City Paper contains an article that begins, "Tennessee's method for selecting Supreme Court and other appellate judges is under attack primarily from Republican lawmakers, but if retiring Chief Justice and Republican William M. Barker has his way, the method is not going anywhere."
Posted at 11:03 PM by Howard Bashman


"Abu-Jamal wants appeals court to reconsider ruling": The Associated Press provides this report.

And The Philadelphia Inquirer has a news update headlined "Abu-Jamal seeks new trial in Phila. officer's slaying."

My earlier coverage of the Third Circuit's ruling from March 2008 appears here and here.
Posted at 10:57 PM by Howard Bashman



"The Supreme Court's Group Hug": Law Professor Jeffrey Rosen has this essay online at the web site of Time magazine.
Posted at 10:50 PM by Howard Bashman


"The Supreme Court and the future of marriage: McCain, Obama oppose gay marriages, but how to ban them is the issue." Tom Curry, national affairs writer for MSNBC, has this report.
Posted at 10:44 PM by Howard Bashman


"Court hears case against sex-offender registry; It's unfair to the homeless, lawyer tells Georgia Supreme Court": Bill Rankin of The Atlanta Journal-Constitution has this news update.

And The Associated Press provides a report headlined "Appeal: Sex offender law criminalizes homelessness."
Posted at 05:35 PM by Howard Bashman



The Associated Press is reporting: Mark Sherman has an article headlined "Employers use federal law to deny benefits."

And in other news, "R.I. lead paint loss gives industry huge win."
Posted at 11:22 AM by Howard Bashman



"Supreme Court Ends Term On Ideological Edge": This audio segment (RealPlayer required) featuring Nina Totenberg appeared on today's broadcast of NPR's "Morning Edition."
Posted at 09:27 AM by Howard Bashman


"The politics behind Senate wiretap bill": Bob Egelko had this article yesterday in The San Francisco Chronicle.
Posted at 09:14 AM by Howard Bashman


"Justice Dept. Sued Over Political Bias; Applicants Begin Coming Forward": This article appears today in The Washington Post.

And yesterday's edition of The Los Angeles Times contained an article headlined "More scrutiny, secrecy at Justice Department; The Office of Professional Responsibility, which monitors lawyers' conduct, has taken on weighty issues since 9/11, yet it has stopped issuing regular public reports."
Posted at 09:04 AM by Howard Bashman



"Guantanamo Crumbles: A federal court strikes another blow against the flimsy process used to justify detentions of 'enemy combatants.'" The Washington Post contains this editorial today.
Posted at 09:00 AM by Howard Bashman


"Prison shuts the book on novelist; Inmate author's sales violate policy": This article appears today in The News & Observer of Raleigh, North Carolina.
Posted at 08:45 AM by Howard Bashman


"Justice Kennedy: the Supreme Court's man in the middle." Michael Doyle of McClatchy Newspapers has this report.
Posted at 08:44 AM by Howard Bashman


"What Did the Framers Have in Mind?" At his "Think Again" blog hosted by The New York Times, Stanley Fish has a post that begins, "Whatever side of the Second Amendment controversy you may be on, the clear winner in District of Columbia v. Heller (striking down a Washington, D.C., ban on hand guns) was intentionalism, the thesis that a text means what its author or authors intend."
Posted at 08:42 AM by Howard Bashman


"Paterson Will Pick a New Chief Judge of New York; Lippman, Ciparick Express Interest": Joseph Goldstein has this article today in The New York Sun.
Posted at 07:50 AM by Howard Bashman


"What Kind of Justices Might a President Obama Appoint? Senator Obama's Reactions to Recent Supreme Court Decisions Show that the Answer May Not Be Easily Predictable." Edward Lazarus has this essay online at FindLaw.
Posted at 07:40 AM by Howard Bashman


Sunday, July 6, 2008

"About Face: A tool of the civil rights movement is increasingly unwelcome in the high court." David G. Savage has this article in the July 2008 issue of ABA Journal magazine.
Posted at 11:50 PM by Howard Bashman


"Free speech, public trust: There's the 1st Amendment, and there's good judgment; Officials need to keep both in mind." Saturday's edition of The Los Angeles Times contained this editorial discussing, among other things, Ninth Circuit Chief Judge Alex Kozinski.
Posted at 11:48 PM by Howard Bashman


"Guns still elusive for D.C. residents; Those looking to buy firearms after the Supreme Court ruling against the District of Columbia's gun ban are out of luck; Purchasing regulations have yet to be written": This article appeared Saturday in The Los Angeles Times.
Posted at 11:43 PM by Howard Bashman


"Affirmative Distraction": Today in The New York Times, Law Professor Stephen L. Carter has an op-ed that begins, "Thirty years ago last week, the Supreme Court handed down its Bakke decision, hoping to end the argument over the constitutionality of affirmative action in college admission."
Posted at 11:35 PM by Howard Bashman


"Decider on the High Court": Columnist David S. Broder has this op-ed today in The Washington Post.
Posted at 11:21 PM by Howard Bashman


"Fundraising Ruling Prompts a Scramble; Opponents of Self-Financers Seek Advice": This article appears today in The Washington Post.
Posted at 11:15 PM by Howard Bashman


"Free Speech on Wheels": Saturday in The New York Times, Stefan Lonce had an op-ed that begins, "The latest license plate controversy erupted last month when the South Carolina Legislature passed America's first-ever religious specialty license plate, with the slogan 'I believe' and the image of a cross over a stained-glass window."
Posted at 11:10 PM by Howard Bashman


"Two Subplots in Guantanamo's Long Legal Story": This article appeared Friday in The New York Times.

Friday's edition of The Washington Post contained a front page article headlined "Debate Over Guantanamo's Fate Intensifies."

And Friday's edition of The Los Angeles Times reported that "White House debates the future of Guantanamo; Legislation could make it easier to move terror suspects to the U.S."
Posted at 11:05 PM by Howard Bashman



"I have repeatedly said that I think it's entirely appropriate for states to restrict or even prohibit late-term abortions as long as there is a strict, well-defined exception for the health of the mother. Now, I don't think that 'mental distress' qualifies as the health of the mother." So says presumptive Democratic presidential nominee Barack Obama, according to this interview posted online by Relevant Magazine.

At her "Legalities" blog, ABC News correspondent Jan Crawford Greenburg has posts titled "Obama: Sounding Like Thomas and Scalia?" and "Obama revisits abortion."
Posted at 08:57 AM by Howard Bashman



"Chicago Gun Ban May Test Ruling; Challenges Follow Decision on D.C. Law": This front page article appears today in The Washington Post.
Posted at 08:52 AM by Howard Bashman


Thursday, July 3, 2008

"Telling Doctors What To Think: South Dakota's unbelievable new abortion law." Emily Bazelon has this jurisprudence essay online at Slate.
Posted at 08:57 PM by Howard Bashman


"Judicial Screener, Now a Nominee, Faces Scrutiny": Adam Liptak will have this article Friday in The New York Times.
Posted at 06:15 PM by Howard Bashman


"Court: Homelessness no excuse to remove child; A Miami appeals court ruled that the state's child-welfare agency cannot take a child away from a parent simply because the parent is homeless." This article appears today in The Miami Herald.

You can access yesterday's ruling of Florida's Third District Court of Appeal at this link.
Posted at 03:24 PM by Howard Bashman



"Detainee asks judge to delay 1st Guantanamo trial": The Associated Press provides a report that begins, "Lawyers for Osama bin Laden's former driver Salim Hamdan asked a civilian judge Thursday to delay his military trial."

And at "SCOTUSblog," Lyle Denniston has a post titled "New challenge to war crimes trials."
Posted at 03:20 PM by Howard Bashman



Ninth Circuit grants rehearing en banc to reexamine whether the U.S. Congress in 1991 validly abrogated States' sovereign immunity when Congress made States subject to private damage claims under the Government Employee Rights Act: You can access today's order granting rehearing en banc at this link.

Back in November 2007, a divided three-judge panel held by a 2-1 vote that Congress did not validly abrogate state sovereign immunity. My earlier coverage of that ruling can be accessed here.
Posted at 03:10 PM by Howard Bashman



When is it reasonable to enhance an attorneys' fee for exceptional results in a federal civil rights class action? Eleventh Circuit Judge Ed Carnes has today issued what many in the class-action bar, and elsewhere, will find to be a must-read decision calling into question the validity of attorneys' fee enhancements for so-called "exceptional" litigation results.

To quote just one passage from the decision (some additional paragraph breaks added):

A result that obtains more or better relief than plaintiffs are entitled to receive under the law is, to the extent it exceeds their entitlement on the merits, analogous to relief on a meritless claim. Just as Dague instructs us that fee awards should not underwrite efforts to obtain relief where none is due under the law, neither should they underwrite efforts to receive more or better relief than that due under the law. Just as the societal costs for fee awards for non-meritorious claims are too high, so also are they too high for results that exceed what the law allows. Just as encouraging non-meritorious claims cannot have been an objective of the fee-shifting provisions, neither can encouraging results that go beyond what the law allows have been an objective.

To put it in an either-or manner, superb results are either what a fair application of the law produces, which means that they are not truly "superb," or they are results that exceed what the law allows and for that reason are beyond the purpose of the fee-shifting statutes. Those statutes are designed to provide a reasonable fee for a reasonable result, not an extraordinary fee for a result that goes beyond what the law would provide if the claims were litigated to their correct conclusion on the merits.

Look at it this way. A merits-exceeding result for plaintiffs must be the product of one, or some combination, of the following factors: superior lawyering by plaintiffs' counsel, bad lawyering by defendants' counsel, poor decision making by the court, or dumb luck.

The Supreme Court held in Delaware Valley I that superior lawyering by the plaintiffs' counsel is not a proper basis for an enhancement. Delaware Valley I, 478 U.S. at 565-68, 106 S. Ct. at 3098-100. So, the first possible cause of results that go beyond the merits cannot be used to justify an enhancement.

Nor can it plausibly be argued that plaintiffs' attorneys ought to reap a windfall, and defendants ought to have to pay more in fees than they otherwise should, because of bad lawyering on the defense side. Surely a defendant suffers enough from the additional relief granted against it because of inferior representation without making the defendant pay a surcharge to the other side for the privilege of having been the victim of bad lawyering.

Nor can it be argued, with tongue out of cheek, that fees should be increased to reward plaintiffs' attorneys for being on the side that happens to benefit from bad judging or good luck. That exhausts the possible explanations for excessively favorable results, and none supports awarding an enhancement.

Judge Carnes's opinion also contains some insightful criticism of the sort of expert witness affidavits and expert testimony that plaintiffs' attorneys seeking lodestar enhancements tend to present in support of their requests.

Unfortunately for the appellants, due to the so-called "prior panel precedent rule," Judge Carnes's insights are, at least for the time being, little more than dicta, as the three-judge panel unanimously views itself as bound by earlier Eleventh Circuit precedent to affirm the fee enhancement at issue in the case. It will be interesting to see whether those earlier Eleventh Circuit cases will survive possible en banc and/or U.S. Supreme Court review.
Posted at 12:50 PM by Howard Bashman



Be careful out there, people! Just in time for the July 4th weekend, the U.S. Court of Appeals for the Eighth Circuit today issued a decision in a case that arose after an item of fireworks struck someone in the eye following ignition. The opinion explains that it was a grandson who set off the fireworks, resulting in the injury in question to his grandmother. And, according to the opinion's statement of facts, the accident occurred exactly six years ago today.
Posted at 12:20 PM by Howard Bashman


"Ruling backs Minot train derailment victims; An appeals court frees residents near Minot, N.D., to pursue their damage claims; The railroad's attorney vows to fight": This article appears today in The Minneapolis Star Tribune.

And The Associated Press reports that "Minot derailment victims win 8th Circuit case."

My earlier coverage of yesterday's interesting ruling by a divided three-judge Eighth Circuit panel can be accessed here.
Posted at 10:30 AM by Howard Bashman



"W.Va. Gov. seeks review of $400M DuPont case": The Associated Press provides a report that begins, "Gov. Joe Manchin wants the West Virginia Supreme Court to clarify whether DuPont has the right to be heard as it appeals $196.2 million in punitive damages, about half the amount a jury awarded in a case involving health threats from a former zinc smelting plant. The lead attorney for the plaintiffs on Wednesday called the governor's action unprecedented."
Posted at 09:30 AM by Howard Bashman


"Judge Rejects Bush's View on Wiretaps": Today in The New York Times, Eric Lichtblau has an article that begins, "A federal judge in California said Wednesday that the wiretapping law established by Congress was the 'exclusive' means for the president to eavesdrop on Americans, and he rejected the government's claim that the president's constitutional authority as commander in chief trumped that law."

Today in The San Francisco Chronicle, Bob Egelko reports that "Suit accusing Bush of acting illegally tossed."

The Associated Press reports that "Judge tosses wiretapping lawsuit by Islamic group."

At Wired.com's "Threat Level" blog, David Kravets has a post titled "Pending a Telecom Immunity Vote, Spy Ruling Lacks Muscle."

And at the Electronic Frontier Foundation's web site, Kurt Opsahl has a post titled "Court Holds That FISA Preempts State Secret Privilege; New NSA Spying Decision Undermines Arguments for Telecom Immunity."

You can access yesterday's ruling of the U.S. District Court for the Northern District of California at this link.
Posted at 09:25 AM by Howard Bashman



"Federal court upholds abortion foes' 1st Amendment rights; Activists' right to display a photo of an aborted fetus at a middle school is affirmed": The Los Angeles Times contains this article today.

Today in The San Francisco Chronicle, Bob Egelko reports that "Anti-abortion group wins free-speech ruling."

The Associated Press reports that "Court rules for anti-abortion activists in LA case."

City News Service reports that "Court OKs aborted fetus photos at RPV school."

And at "The School Law Blog" of Education Week, Mark Walsh has a post titled "Why an Anti-Abortion Truck May Be Coming to Your School."

My earlier coverage of yesterday's Ninth Circuit ruling appears at this link.
Posted at 09:15 AM by Howard Bashman



"Warren J. Ferguson, 87; judge on U.S. 9th Circuit Court of Appeals": This obituary appears today in The Los Angeles Times.
Posted at 09:05 AM by Howard Bashman


"Lots of Questions, Little Agreement at D.C. Hearing on Gun Laws": The Washington Post contains this article today.

And today in The New York Sun, Joseph Goldstein reports that "New York Moves To Defend Gun Law."
Posted at 08:54 AM by Howard Bashman



"Assisted Suicide of Healthy 79-Year-Old Renews German Debate on Right to Die": This article appears today in The New York Times.
Posted at 08:42 AM by Howard Bashman


Available online from law.com: Tony Mauro has an article headlined "Next Term: A Fatter, Faster Calendar for Supreme Court; Chief justice is hastening the argument calendar to front-load the 2008-09 term."

And Gina Passarella has an article headlined "Citing District Judge's Actions During Trial, 3rd Circuit Vacates Med-Mal Verdict; Remanding the case to a new judge, the 3rd Circuit calls district court judge 'impatient and dismissive'" in which I am quoted. The article reports on a non-precedential ruling that the U.S. Court of Appeals for the Third Circuit issued last week.
Posted at 08:40 AM by Howard Bashman



"New drive to ban race preferences; Initiatives in three states would prohibit affirmative action in public realms": This article appears today in The Christian Science Monitor.
Posted at 08:32 AM by Howard Bashman


"Justice Dept. Admits Error in Not Briefing Court": Today in The New York Times, Linda Greenhouse has an article that begins, "In a highly unusual admission of error, the Justice Department acknowledged on Wednesday that government lawyers should have known that Congress had recently made the rape of a child a capital offense in the military and should have informed the Supreme Court of that fact while the justices were considering whether death was a constitutional punishment for the crime."
Posted at 08:30 AM by Howard Bashman


"A Supreme Court on the Brink": The New York Times today contains an editorial that begins, "In some ways, the Supreme Court term that just ended seems muddled: disturbing, highly conservative rulings on subjects like voting rights and gun control, along with important defenses of basic liberties in other areas, including the rights of detainees at Guantanamo Bay, Cuba."
Posted at 08:27 AM by Howard Bashman


"High court reins in judges on questioning of witnesses": This article appeared yesterday in The Newark (N.J.) Star-Ledger.

And law.com has a report headlined "N.J. High Court: Judge's Grilling of Defendant on Stand May Have Prejudiced Jury."

You can access Tuesday's ruling of the Supreme Court of New Jersey at this link.
Posted at 08:25 AM by Howard Bashman



"Guantanamo Detainees: shorter wait? Last month's Supreme Court ruling sets new rules for judges examining habeas corpus challenges from detainees." Warren Richey has this article today in The Christian Science Monitor.

And The Wall Street Journal today contains an editorial entitled "The Enemy Detainee Mess."
Posted at 08:20 AM by Howard Bashman



"Defense Lawyers for Accused Courthouse Shooter Want DA's Office Out; Judge turns down request to delay trial": law.com provides this report.

And today's edition of The Atlanta Journal-Constitution contains an article headlined "Brian Nichols: Don't broadcast my sinister beard."
Posted at 08:00 AM by Howard Bashman



"A judge's porn collection: John Stagliano says the uproar of Judge Kozinski's picture collection exposes the public's reluctance to accept human sexuality; Barry McDonald replies that Kozinski did the right thing by recusing himself from an obscenity case." The Los Angeles Times posted this online debate to the newspaper's web site on Tuesday.
Posted at 07:52 AM by Howard Bashman


Wednesday, July 2, 2008

"11th Circuit Sides With National Geographic in Copyright Case; Judges vote 7-5 that freelancers cannot collect royalties from magazine's CD-ROM of its archives": law.com provides this report.

My earlier coverage of Monday's Eleventh Circuit en banc ruling appears at this link.
Posted at 11:55 PM by Howard Bashman



"Bush to Close Guantanamo?" ABC News correspondent Jan Crawford Greenburg has this post at her "Legalities" blog.
Posted at 11:50 PM by Howard Bashman


How should a federal appellate court predict state law -- in the absence of guidance from the State's highest court -- in a State that utilizes regional intermediate appellate courts? When it comes to predicting Florida law in the absence of any definitive ruling from Florida's highest court, the Eleventh Circuit uses an interesting approach, as this decision issued today illustrates.

I would think that it would be better practice for a federal appellate court, when faced with no on-point ruling from a State's highest court and conflicting rulings on the issue from regional state intermediate appellate courts, to predict how the highest state court would rule instead of merely applying the holding of the regional intermediate appellate court that would have decided the appeal had the case been filed in state court.
Posted at 10:40 PM by Howard Bashman



En banc Eleventh Circuit finds itself evenly divided over disposition of Section 2 vote dilution claim from Glades County, Florida: You can access today's order of the en banc U.S. Court of Appeals for the Eleventh Circuit at this link.

The majoriity on a divided three-judge Eleventh Circuit panel, in July 2007, issued this decision reversing the entry of judgment against the plaintiffs. My earlier coverage of that ruling appears here. At that time, Law Professor Rick Hasen, at his "Election Law" blog, predicted that this case could end up before the U.S. Supreme Court. If today's evenly divided en banc result is any indication, Rick's prediction may indeed prove accurate.
Posted at 09:05 PM by Howard Bashman



Exactly what sort of footwear are Teva Sports Sandals? A three-judge panel of the U.S. Court of Appeals for the Federal Circuit considered that question in a ruling issued today.
Posted at 08:30 PM by Howard Bashman


Available from National Review Online: Jonathan H. Adler has an essay entitled "What Happened to the 'Conservative Court'? Lessons learned from another year of the Roberts Court."

Andrew C. McCarthy has an essay entitled "Some Evolution: The fraudulent 'consensus' behind the Supreme Court's child-rape ruling."

Anthony Dick has an essay entitled "Constitutional Torture: Standard judicial malpractice."

Rich Lowry has an essay entitled "America's Worst Justice: Kennedy fashions himself an instructor to the nation; And he is -- in the arbitrary ways of judicial lawlessness."

And Thomas Sowell has an essay entitled "Courting the Future: High stakes."
Posted at 08:24 PM by Howard Bashman



"Young Lawyer Takes Victory Lap After Supreme Court Gun Case Win": Joe Palazzolo has this article online at law.com.
Posted at 08:10 PM by Howard Bashman


"Book Ponders How To End Detainees' Legal Limbo": This audio segment (RealPlayer required) featuring Benjamin Wittes appeared on yesterday's broadcast of NPR's "Morning Edition."

Sunday in The Los Angeles Times, Pulitzer Prize-winning historian David J. Garrow had this review of the book, "Law and the Long War: The Future of Justice in the Age of Terror," by Benjamin Wittes.

And last Saturday in The Wall Street Journal, Gabriel Schoenfeld had this review of the book.
Posted at 08:05 PM by Howard Bashman



"'Thurgood' Plays To Standing Ovations On Broadway": This audio segment (RealPlayer required) featuring Nina Totenberg appeared on this evening's broadcast of NPR's "All Things Considered."
Posted at 07:50 PM by Howard Bashman


"Not Your Father's Court": Today's installment of CBS News legal analyst Andrew Cohen's "CourtWatch" column begins, "The Supreme Court's decisions this past term speak for themselves."
Posted at 03:12 PM by Howard Bashman


"Greenhouse and Fidell's last laugh": Mark Obbie has this post at his "LawBeat" blog.
Posted at 02:10 PM by Howard Bashman


Available online from The Weekly Standard: In the July 7, 2008 issue of that publication, Matthew Continetti has an essay entitled "An Indecent Decision: Justice Kennedy's atrocious child rape ruling."

Erin Sheley has an essay entitled "Dead Men Walking: Why Kennedy v. Louisiana could spell the beginning of the end of the death penalty."

And Hans A. von Spakovsky has an essay entitled "A Priceless Opinion: The Supreme Court strikes down the Millionaire's Amendment."
Posted at 02:02 PM by Howard Bashman



"Minot derailment victims win 8th Circuit case": The Associated Press provides a report that begins, "The 8th U.S. Circuit Court of Appeals has ruled that a federal law change approved in response to a deadly train derailment and chemical spill on the edge of Minot is constitutional. Legislation signed by President Bush last August says people can bring personal-injury lawsuits against railroads in state court under certain circumstances. A federal judge had ruled earlier that the Federal Railroad Safety Act protected Canadian Pacific Railway from such claims stemming from the January 2002 Minot derailment. Congress later changed the law. Canadian Pacific argued the change was unconstitutional."

In January 2008, The Minneapolis Star Tribune published an article about the case headlined "When justice knows no timetable: Nearly six years to the day after a train derailed in Minot, N.D., injuring hundreds in a cloud of anhydrous ammonia, the latest round of a court battle opens for those seeking compensation."

And in July 2007, The Associated Press published an article headlined "Open door for Minot train derailment victims."

You can access today's ruling, by a divided three-judge panel of the U.S. Court of Appeals for the Eighth Circuit, at this link.

The case presents an interesting separation of powers issue: may the U.S. Congress retroactively "clarify" federal law to specify an absence of preemptive intent after the question of preemption has already been decided on appeal, U.S. Supreme Court review of the preemption question has been denied, and the underlying claims have been dismissed by a federal district judge on remand from the Eighth Circuit's earlier ruling, which found federal preemption under the Federal Railroad Safety Act. The majority in today's ruling answers "yes." The result is to revive the plaintiffs' claims, the merits of which will now be addressed in state court.
Posted at 01:57 PM by Howard Bashman



"Plaintiffs drove a truck that displayed enlarged, graphic photographs of early-term aborted fetuses around the perimeter of a public middle school in Rancho Palos Verdes, California." So begins an opinion that the U.S. Court of Appeals for the Ninth Circuit issued today.
Posted at 01:37 PM by Howard Bashman


Available online from law.com: Pamela A. MacLean of The National Law Journal has an article headlined "A Tricky Bid for More Federal Judges; Long-shot bill, with caveat, adds 50 to U.S. bench."

Shannon P. Duffy of The Legal Intelligencer has an article headlined "Sources: Senators Agree on New Federal Judges Package." According to this article, the White House plans to withdraw the nomination of U.S. District Judge Gene E.K. Pratter to the U.S. Court of Appeals for the Third Circuit and instead nominate U.S. District Judge Paul S. Diamond to that federal appellate court.
Posted at 10:15 AM by Howard Bashman



In commentary available online from FindLaw: Anthony J. Sebok has an essay entitled "The Lessons of the Supreme Court's Recent Decision Granting a Huge Victory to Exxon in the Exxon Valdez Oil Spill Case."

And Joanne Mariner has an essay entitled "Uighurs at Guantanamo."
Posted at 09:45 AM by Howard Bashman



"In Court Ruling on Executions, a Factual Flaw": Linda Greenhouse has this article today in The New York Times. The article is based on this blog post at "CAAFlog."
Posted at 09:35 AM by Howard Bashman


"The Annotated Bobblehead: Justice Louis D. Brandeis." With thanks to The Green Bag, you can view the Justice Brandeis bobblehead in living color by clicking here.
Posted at 07:45 AM by Howard Bashman


Tuesday, July 1, 2008

"California's death penalty process is 'dysfunctional,' panel finds; The time from sentencing to execution is twice the national average; A state commission says delays undermine the system and recommends more sentences of life without parole instead": Maura Dolan has this article today in The Los Angeles Times.

Today in The San Francisco Chronicle, Bob Egelko reports that "Panel condemns state's death penalty system."

In The San Jose Mercury News, Howard Mintz has an article headlined "Commission: Abolish or limit death penalty; Commission finds problems galore with 'broken system.'"

The Sacramento Bee reports that "Panel finds California death penalty flawed, urges overhaul."

And USA Today reports that "Calif. death penalty system 'dysfunctional.'"

You can access the report, issued yesterday, at this link.
Posted at 10:50 PM by Howard Bashman



"Judge orders individual 9/11 trial hearings": Carol Rosenberg of The Miami Herald has this news update.
Posted at 10:08 PM by Howard Bashman


"The Court vs. Voters": Today in The Washington Post, columnist E.J. Dionne Jr. has an op-ed that begins, "If the long conservative era that began with Ronald Reagan's election is over, will the judges appointed during the right's ascendancy be able to block, frustrate and undermine the efforts of a new progressive majority?"
Posted at 10:04 PM by Howard Bashman


"Gun Bill Provides for Self-Defense; Mendelson Responds to High Court Objection to D.C. Law": The Washington Post contains this article today.
Posted at 09:10 PM by Howard Bashman


"Judges Cite Need for Reliable Evidence To Hold Detainees": This article appears today in The Washington Post.

And The New York Times reports today that "Evidence Faulted in Detainee Case."
Posted at 09:08 PM by Howard Bashman



"Court Dismisses Rendition Suit": The New York Times today conains an article that begins, "A federal appeals court on Monday dismissed a lawsuit filed by a Syrian-born Canadian man who had accused the United States of violating the law and his civil rights after he was detained at Kennedy Airport and sent to Syria under what he claims was an act of 'extraordinary rendition.'"

And today in The New York Sun, Joseph Goldstein reports that "Appeals Court Upholds Dismissal of Torture Case."
Posted at 09:00 PM by Howard Bashman



"Pennsylvania Senate confirms 4 appeals judges": The Associated Press provides this report.
Posted at 03:35 PM by Howard Bashman


"Court tosses $785,000 award over cancer death": The Associated Press provides a report that begins, "A federal appeals court has thrown out a $785,000 jury award to a woman who blamed her mother's cancer death on contamination from a wood treatment plant in Mississippi, one of hundreds of such cases against the facility's owner."

You can access yesterday's ruling of the U.S. Court of Appeals for the Fifth Circuit at this link.
Posted at 01:58 PM by Howard Bashman



Get your Justice Louis D. Brandeis bobblehead dolls: Subscribers to The Green Bag, on receiving the Spring 2008 issue of that publication, will notice that the journal contains a Justice Louis D. Brandeis bobblehead certificate that can be redeemed for the aforementioned bobblehead doll.

What's more, I just received a mailing from The Green Bag inviting me to attend a reception on the evening of Tuesday, July 22, 2008 at a certain law firm's Washington, DC office for tea, cookies, and the chance to turn a Brandeis bobblehead certificate into a Brandeis bobblehead doll.

Some careful readers of this blog have emailed in recent days asking me to post photos of the Brandeis bobblehead, because due to some amazing bit of luck I happened to receive that very bobblehead doll from The Green Bag on February 5, 2008. A detailed photograph of the Brandeis bobblehead appears on page 282 of the Spring 2008 issue of The Green Bag, so perhaps that publication's editor will be so kind as to email me a PDF of that page so I can post it here.
Posted at 12:14 PM by Howard Bashman



Two rulings of note that the U.S. Court of Appeals for the First Circuit issued yesterday: Don't drive horribly drunk, kill yourself, and then expect your survivors to recover "accidental death" benefits. So holds the majority on a divided three-judge panel in this ERISA ruling issued yesterday.

And in a separate ruling issued yesterday, the First Circuit affirmed the dismissal of a lawsuit alleging fraud and a violation of a consumer protection statute brought by a graduate of the Southern New England School of Law who was not permitted to take the New Jersey bar examination because that law school had failed to achieve American Bar Association accreditation the plaintiff's graduation.
Posted at 11:54 AM by Howard Bashman



Second Circuit affirms a federal district court's order formally reprimanding Cleary Gottleib Steen & Hamilton LLP and ordering that law firm to pay the opposing party $165,000 for the costs of seeking sanctions: Today's Second Circuit ruling issued as a non-precedential decision.
Posted at 10:54 AM by Howard Bashman


"R.I. high court overturns lead paint verdict": The Associated Press provides a report that begins, "The Rhode Island Supreme Court overturned a landmark verdict against three former lead paint companies Tuesday, a major setback for communities that want the companies to decontaminate hundreds of thousands of homes and other buildings."

And The Providence Journal's breaking news blog offers a post titled "Supreme court overturns judgment in lead paint suit."

You can access today's ruling of the Supreme Court of Rhode Island at this link.
Posted at 10:20 AM by Howard Bashman



American Constitution Society now, Federalist Society later: C-SPAN is today offering live coverage as "[t]wo D.C. think tanks review the recent Supreme Court term and its impact on public policy. First, the American Constitution Society looks at both progressive and conservative perspectives of the Court's decisions. Then, the Federalist Society discusses the emerging trends and the future of the Roberts' Court."

You can view the ACS session right now, using either RealPlayer or Windows Media Player. The Federalist Society session (hosted by ABC News correspondent Jan Crawford Greenburg, on her way to hitting the campaign trail) is scheduled to get underway at 12:40 p.m.

Update: The ACS session has ended, but C-SPAN has promptly posted archived video of the session, so you can watch it online, on-demand by clicking here (RealPlayer required).

Second update: The Federalist Society session has ended, but C-SPAN has promptly posted archived video of the session, so you can watch it online, on-demand by clicking here (RealPlayer required).
Posted at 10:14 AM by Howard Bashman



"Supreme Court Gun Ruling and its Impact": You can view this past Saturday's broadcast of C-SPAN's "America and the Courts" program by clicking here (RealPlayer required).

And in the Week in Review section of Sunday's edition of The New York Times, Adam Liptak had an article headlined "Gun Laws and Crime: A Complex Relationship."
Posted at 08:07 AM by Howard Bashman



"Earl Warren's Legacy": This audio segment (RealPlayer required) featuring Nina Totenberg appeared on yesterday evening's broadcast of NPR's "All Things Considered."
Posted at 08:00 AM by Howard Bashman


Available online from law.com: Marcia Coyle has an article headlined "Punitives Take Hit in 'Exxon' Ruling, but How Hard? Supreme Court's decision could have reach beyond sea."

And an article reports that "Foster Care, Court Funding Top the Docket for Fla. High Court's New Chief."
Posted at 07:55 AM by Howard Bashman



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