Tuesday, August 26, 2014
"Supreme Court social media rap-lyrics case brings Eminem into the fold; When does online speech become a 'true threat' unprotected by the US Constitution?" David Kravets of Ars Technica had this report yesterday.
"Indefensible: Why Khalid Sheikh Mohammed's lawyer is leaving the defense team -- and the Army." Gabriel Urza has this jurisprudence essay online today at Slate.
Posted at 08:46 PM by Howard Bashman
"Nice Try, Obama -- The president's latest accommodation to the contraception mandate has one problem: Religious employers won't go for it." Emily Bazelon has this jurisprudence essay online today at Slate.
Posted at 08:44 PM by Howard Bashman
"How the Supreme Court Protects Bad Cops": Erwin Chemerinsky will have this op-ed in Wednesday's edition of The New York Times.
Posted at 08:33 PM by Howard Bashman
"Federal appeals court says groups can sue over Blair Mountain": Paul J. Nyden of The Charleston (W. Va.) Gazette has this news update.
Reuters reports that "U.S. court rules for groups defending historic site from coal mining."
And The Hill has a report headlined "Court: Greens can sue to protect coal labor battle site."
"Appellate court to hear arguments on island for first time in 12 years": The Pacific Daily News of Guam has this report.
You can click here to learn the identities of the three judges who are making the very lengthy flight to Guam to hear a total of 90 minutes worth of oral arguments.
In the September 2014 issue of ABA Journal magazine: Mark Walsh has an article headlined "Home-care aides don't owe union fees, but court stops short of overruling a key precedent."
"Gripes About Federal Bench: Banal to Bizarre; Peek into 11th Circuit misconduct file shows many complaints, no discipline." Alyson M. Palmer will have this article in Wednesday's edition of The Fulton County Daily Report.
"Thousands of Electronic Case Files Lost in Transition": Today at WSJ.com's "Law Blog," Joe Palazzolo has a post that begins, "The federal judiciary has ditched years of electronic court documents, as part of a migration to a new system, a courts spokeswoman said."
The official announcement of the news -- which will affect electronic access to certain case files of four federal appellate courts -- can be accessed here.
Update: In other coverage, Joe Mullin of Ars Technica reports that "US courts trash a decade's worth of online documents, shrug it off; For pre-2010 documents in three appeals courts, you'll have to go in person."
"U.S. Supreme Court expert joins legal team fighting Oklahoma's same-sex marriage ban; Stanford University's Jeffrey L. Fisher will be lead counsel for the Tulsa County couple at the center of Oklahoma's same-sex marriage case": Chris Casteel of The Oklahoman has this report.
Posted at 05:10 PM by Howard Bashman
"Birmingham attorney Donald Watkins tells U.S. Supreme Court Chief Justice that federal judge Mark Fuller should be removed from bench": The Birmingham News has this update.
And last Thursday, the AL.com Editorial Board posted online an editorial titled "Personal failings should lead federal judge to resign."
Access online the audio from today's Seventh Circuit oral argument in the Indiana same-sex marriage case: Via this link (17.7 MB mp3 audio file). Update: The oral argument in the Wisconsin same-sex marriage case can now be accessed via this link (22.8 MB mp3 audio file).
In early coverage, Jill Disis and Tim Evans of The Indianapolis Star have a news update headlined "Judges quiz state about gay marriage ban's impact on kids."
Patrick Marley of The Milwaukee Journal Sentinel has a news update headlined "Court calls Wisconsin, Indiana gay marriage bans into question."
And Michael Tarm of The Associated Press reports that "Judges blast Indiana, Wisconsin gay marriage bans."
Update: In other coverage, Reuters reports that "U.S. appeals court challenges states on gay marriage bans."
Bloomberg News has this updated report.
And Chris Geidner of BuzzFeed reports that "Indiana, Wisconsin Lawyers Get Tough Questions Over States' Marriage Bans; The three 7th Circuit Court of Appeals judges appeared ready to strike down Indiana's law and Wisconsin's constitutional amendment banning same-sex couples from marrying."
"Philip Morris Loses Bid to Toss Military Contract Litigation": Bloomberg News has this report on a ruling that the U.S. Court of Appeals for the D.C. Circuit issued today.
And in other coverage, Lawrence Hurley of Reuters reports that "Philip Morris ordered to defend fraud suit over U.S. military vendors."
"Same-sex marriage case: A look at the dueling attorneys." Tim Evans of The Indianapolis Star has this report.
Patrick Marley and Dana Ferguson of The Milwaukee Journal Sentinel previewed today's oral argument in an article headlined "Federal court to take up gay marriage bans in Wisconsin, Indiana."
And Bloomberg News reports that "Wisconsin, Indiana Join Rush for Same-Sex Marriage Review."
"New plea to limit gun rights in D.C." Lyle Denniston has this post today at "SCOTUSblog."
Posted at 11:14 AM by Howard Bashman
"Crowds line up to hear federal gay marriage appeal": The Associated Press has this report from Chicago.
"We decline to rule that Strickland requires an appellate attorney to read advance sheets and consider newly-decided cases in the weeks or months after a direct appeal is fully briefed, argued, and submitted for decision." So rules the U.S. Court of Appeals for the Eighth Circuit in a decision issued today rejecting a claim of ineffective assistance of appellate counsel in a criminal case.
Posted at 11:09 AM by Howard Bashman
Received in yesterday's mail: An advance review copy of the forthcoming book "Judging Statutes," by Robert A. Katzmann. The book's author currently serves as Chief Judge of the U.S. Court of Appeals for the Second Circuit.
The book's announced on-sale date is September 11, 2014. According to the publisher's web page, the book "[o]ffers a powerful challenge to Antonin Scalia's textualist approach" and presents "[a] spirited and compelling defense of why judges must look at the legislative record behind a law -- and not merely the statute itself."
"Indiana, Wisconsin couples in gay marriage case": The Associated Press has this report.
The three-judge Seventh Circuit panel assigned to hear and decide these cases, being orally argued today, consists of Circuit Judges Richard A. Posner, Ann Claire Williams. and David F. Hamilton.
"Republican Lawyers' Latest Sneak Attack on Obamacare Is Their Most Brazen Yet": Simon Lazarus has this essay online at The New Republic.
Last week at the "Balkinization" blog, Rob Weiner had a post titled "Taking Liberties with the Last Word."
And in response, at "The Volokh Conspiracy," Jonathan H. Adler had a post titled "Taking liberties with law and word -- a surreply to Rob Weiner."
"The Witness: For more than a decade, it was Michelle Lyons's job to observe the final moments of death row inmates -- but watching 278 executions did not come without a cost." Pamela Colloff will have this article in the September 2014 issue of Texas Monthly.
Posted at 08:40 AM by Howard Bashman
"Journalists, ACLU file federal lawsuit over botched Oklahoma execution; A group of international and local journalists are suing the Oklahoma Corrections Department, alleging the closing of the blinds during the botched execution of Clayton Lockett violated the public's First Amendment rights": Graham Lee Brewer has this article in today's edition of The Oklahoman.
The Guardian (UK) reports that "ACLU challenges Oklahoma over first amendment violation in execution; The Guardian and the Oklahoma Observer join ACLU in arguing the state acted unconstitutionally by drawing a screen during Clayton Lockett execution."
The Oklahoma Observer reports that "Lawsuit Seeks Uncensored Access To Executions."
And The Associated Press reports that "News media sue over Oklahoma execution procedures."
Monday, August 25, 2014
"Federal appeals court questions Kansas' proof-of-citizenship rules": The Wichita Eagle has this news update.
And The Associated Press reports that "Appeals court questions proof-of-citizenship rules."
"First Day of Classes Without Dan Markel": WCTV in Tallahassee has this report today.
Posted at 10:32 PM by Howard Bashman
"The lawyer who challenged the Harper government and won": Sean Fine had this article in Saturday's edition of The Toronto Globe and Mail.
Posted at 10:28 PM by Howard Bashman
"Health-care fears loom large in gay marriage cases": The Associated Press has this report.
Posted at 10:25 PM by Howard Bashman
Saturday, August 23, 2014
Programming note: New posts will appear here either on Monday night or Tuesday morning. In the interim, appellate-related retweets may appear at the "How Appealing" Twitter feed.
Posted at 07:32 AM by Howard Bashman
Friday, August 22, 2014
"Administration Proposes New Health Rules Addressing Religious Objections": In Saturday's edition of The New York Times, Michael D. Shear will have an article that begins, "The Obama administration on Friday proposed new regulations intended to address the religious objections that some nonprofit organizations and private companies have to providing contraceptive coverage for their employees."
And The Los Angeles Times reports that "White House revises birth control rule to accommodate religious groups."
How to comment on the proposed amendments to the Federal Rules of Appellate Procedure: If you wish to offer an on-the-record comment in response to the pending proposed amendments to the Federal Rules of Appellate Procedure -- which include a proposal to reduce the maximum word count of a principal appellate brief from 14,000 words to 12,500 words -- you can submit your comment to the advisory committee via this link.
Thus far, in response to my original post on this subject, I have received only off-the record responses. Those responses can be summarized as follows: (1) this change should be welcomed by the most experienced and talented appellate practitioners, because a shorter maximum word count will benefit them the most; and (2) judges are of the view that in far too many cases the appellate briefs being submitted are far too long, and this rule is meant to remedy that problem somewhat.
"BlackBerry Ltd did not infringe on Mformation Technologies patents, appeals court rules": Financial Post has this report on a ruling that the U.S. Court of Appeals for the Federal Circuit issued today.
Posted at 10:03 PM by Howard Bashman
"U.S. court revives suit over Sturm coffee pod 'knockoffs'": Reuters has this report on a ruling that the U.S. Court of Appeals for the Seventh Circuit issued today.
Posted at 10:00 PM by Howard Bashman
"As semester begins, Markel's colleagues seek closure": Doug Blackburn has this article today in The Tallahassee Democrat.
Posted at 09:42 AM by Howard Bashman
"Reading the Court's signals on same-sex marriage": Lyle Denniston has this post at "SCOTUSblog."
Posted at 07:55 AM by Howard Bashman
"Justice Ginsburg Laments 'Real Racial Problem' in U.S.; Discusses major rulings, law schools in sweeping Q&A": Marcia Coyle has this article online today at The National Law Journal.
Posted at 07:54 AM by Howard Bashman
Thursday, August 21, 2014
"Lessons from Tennessee Supreme Court retention election": Law professor Brian T. Fitzpatrick has this op-ed today in The Tennessean.
Posted at 11:00 PM by Howard Bashman
"GOP's Supreme Court candidate defies ban on campaigning at State Fair booth": The Associated Press has this report from Minnesota.
Posted at 10:52 PM by Howard Bashman
"Obamacare challengers to D.C. Circuit: Let Supreme Court decide where subsidies should flow." Tom Howell Jr. of The Washington Times has this report.
Posted at 10:50 PM by Howard Bashman
"Bashman Post on Word Limit Reduction Proposal": David R. Cleveland has this post today at the "Appellate Advocacy Blog."
"As Gensler sees it, the auteur approach to filmmaking is legally impermissible in the architectural business." Circuit Judge Frank H. Easterbrook issued this very interested opinion today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit.
Posted at 10:36 PM by Howard Bashman
"The Twilight of Antonin Scalia: The conservative hero's fiery 2012 dissent on same-sex marriage could be his most influential opinion -- but not in the way he intended." Law professor Garrett Epps has this essay online at The Atlantic.
Posted at 08:23 PM by Howard Bashman
"Court unsealing 2 dozen documents in Doe probe of campaign": Patrick Marley and Dana Ferguson of The Milwaukee Journal Sentinel have this news update.
And The Associated Press reports that "Court to unseal some files in probe of Gov. Walker."
"California AG Kamala Harris to appeal ruling against death penalty": Maura Dolan of The Los Angeles Times has this news update.
The Sacramento Bee has a news update headlined "Kamala Harris will appeal death penalty ruling."
"Superior Court upholds Joan Orie Melvin conviction": Paula Reed Ward of The Pittsburgh Post-Gazette has this news update.
Adam Brandolph of The Pittsburgh Tribune-Review has a news update headlined "State Superior Court upholds conviction, sentence of former Justice Melvin."
And The Associated Press reports that "Ex-judge must say she's sorry, just not in cuffs."
"Supreme Court case to shape Ferguson investigation": The Associated Press has this report.
Posted at 04:05 PM by Howard Bashman
Not 'it': Ninth Circuit holds that 'tag' jurisdiction doesn't apply to a corporate defendant. Fans of civil procedure and personal jurisdiction issues are likely to enjoy reading a decision that the U.S. Court of Appeals for the Ninth Circuit issued today.
Posted at 01:37 PM by Howard Bashman
"Chief Judge Kozinski's 'Serious Doubts' About Judge Bates's FISA Reform Letters": Steve Vladeck has this post today at the "Just Security" blog. You can view the letter from the Ninth Circuit's chief judge at this link.
Posted at 09:33 AM by Howard Bashman
Wednesday, August 20, 2014
"U.S. effort to protect bald eagle suffers legal setback": Jonathan Stempel of Reuters has this report on a ruling that the U.S. Court of Appeals for the Fifth Circuit issued today.
Posted at 11:28 PM by Howard Bashman
Microsoft Word doesn't like "caselaw," but Bryan Garner does: Spell-check can be a wonderful thing, but should attorneys give-in to that program's belief that "caselaw" isn't a word? In some recent appellate briefs, I have been using the two-word version to avoid the red underlining that Microsoft Word confers on my preferred single-word approach.
Tonight I decided to consult the views of legal writing guru Bryan A. Garner on this question via Google search. The answer from Garner seems to be that "caselaw" is just fine.
Proposal to shorten the maximum length of principal briefs filed in the U.S. Courts of Appeals from 14,000 words to 12,500 words: You can read the proposed amendment and accompanying commentary at this link. Apparently the current 14,000-word limit was based on a mistake concerning how many words fit onto a page. This proposed amendment likely will provoke an outcry from those who believe the current 14,000-word limit is too small -- which undoubtedly it is in some cases.
Readers who favor or disfavor this amendment are invited to send comments for publication here at "How Appealing." Please identify whether I may publish your name with your comment. I am in the process of formulating my views on the matter.
Update: Mathematically, the proposed new 12,500-word limit on principal briefs represents 89.3 percent of the current 14,000-word limit. Thus, if you currently reach the word count maximum at around 66 pages (which I typically do when using either 14-point Century Schoolbook or Book Antiqua font), then under the new rule you would reach the maximum word count at around 60 pages. That could be the difference between being able to include an additional argument or being able to adequately develop all existing arguments in a brief consisting of more than just a few arguments.
On the other hand, there certainly are those lawyers, and even some law firms, who can't stop writing until the word count is reached, whether or not the case justifies such extended treatment. In at least those instances, the new word count will certainly be appreciated by those of us on the other side of the case.
It would be interesting to hear from appellate judges whether the current word count is too long and whether shortening the word count by approximately 11 percent would make an appreciable difference to their workloads and ability to give important cases the attention they deserve. My guess is that judges have their own mechanism for coping with verbose briefs that typically consists of paying less attention and that this small reduction in maximum brief size won't make any difference in that regard.
"When Do Doctors Have the Right to Speak?" The New York Times today has posted online these Room for Debate essays.
Posted at 09:32 PM by Howard Bashman
"SeaWorld drops appeal in safety ruling over dead orca trainer": Reuters has this report.
Posted at 09:15 PM by Howard Bashman
"By Any Means Necessary": Linda Greenhouse has this essay online at The New York Times.
Posted at 09:12 PM by Howard Bashman
Pa. Supreme Court grants review to decide two important but unresolved questions pertaining to medical malpractice litigation: Question one involves the scope of a hospital's liability under the ostensible agency doctrine, while question two involves whether a nurse may deliver expert testimony on behalf of the plaintiff against a defendant nurse in a case in which physicians remain as co-defendants.
You can access at this link the Petition for Allowance of Appeal that I filed in early March 2014 on behalf of the plaintiff in this case requesting Pa. Supreme Court review. And today's order of Pennsylvania's highest court granting review on both questions presented can be accessed here.
"Supreme Court puts hold on same-sex marriages in Virginia": The Richmond Times-Dispatch has this news update.
Robert Barnes of The Washington Post has a news update headlined "Virginia same-sex marriage ruling is placed on hold."
And Timothy M. Phelps of The Los Angeles Times has a news update headlined "Supreme Court blocks gay marriages from starting in Virginia."
"A New Type of Amicus Brief: No Clients, No Side Taken": Tom Goldstein is the focus of Tony Mauro's new Supreme Court Brief. You can freely access the full text of the article via Google News.
"Arrested US judge embarrassed, entering treatment": The Associated Press has this report.
Posted at 03:00 PM by Howard Bashman
After nearly 20 years of litigation, Ninth Circuit rejects Hare Krishna's First Amendment challenge to the Los Angeles International Airport's regulation banning the continuous or repetitive solicitation of funds: You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 01:42 PM by Howard Bashman
"The Crooked and the Dead: Does the Constitution protect corruption?" Jill Lepore has this article in the August 25, 2014 issue of The New Yorker.
Posted at 01:20 PM by Howard Bashman
"Ginsburg and Alito to Speak at New-York Historical Society": This post appeared yesterday at the "ArtsBeat" blog of The New York Times.
Posted at 11:23 AM by Howard Bashman
"The much-discussed Ryan v. Hurles returns, expanded": Lyle Denniston has this post today at "SCOTUSblog."
Posted at 08:50 AM by Howard Bashman
Tuesday, August 19, 2014
"State Supreme Court declares fine against casino employee unconstitutional": Adam Brandolph of The Pittsburgh Tribune-Review has a news update that begins, "The Pennsylvania Supreme Court on Tuesday called a $75,000 fine that an Allegheny County judge dealt to a former Rivers Casino poker dealer 'unconstitutionally excessive,' considering he stole $200 in poker chips, and sent the case back for an 'appropriate fine.'"
"Louisiana Supreme Court settles Justice Department inquiry into attorney admissions": The Times-Picayune of New Orleans has this report.
Posted at 11:11 PM by Howard Bashman
"McCrory appoints Mark Martin chief justice of NC Supreme Court": The News & Observer of Raleigh, North Carolina has this report.
Posted at 11:08 PM by Howard Bashman
"Utah poll: Most oppose gay marriage, think Supreme Court will legalize it; Most Utahns oppose it but believe Supreme Court will reject the state's arguments." Matt Canham of The Salt Lake Tribune has this report.
Posted at 11:07 PM by Howard Bashman
"Federal appeals court adds Wisconsin voter ID hearing": Patrick Marley of The Milwaukee Journal Sentinel has this news update.
Posted at 10:52 PM by Howard Bashman
"U.S. court sides with Philly cops fighting ban on political contributions": NewsWorks has this report on a ruling that the U.S. Court of Appeals for the Third Circuit issued yesterday.
Posted at 01:55 PM by Howard Bashman
"Utah asks for more time to file in same-sex marriage benefits case": Jessica Miller has this article today in The Salt Lake Tribune.
And in today's edition of The Deseret News, Emiley Morgan has an article headlined "State asks for more time to file appeal in gay marriage recognition case."
"The Politics of Judging and the Judging of Politics": Certain content available online from law.com now appears to be freely accessible via Google News. Last Tuesday, The Legal Intelligencer published this new installment of my monthly "Upon Further Review" column. You can freely access the essay via Google News.
Posted at 01:42 PM by Howard Bashman
"Breyer's Two Decades as the 'Cold-Fish' Justice": Kenneth Jost has this post at his blog, "Jost On Justice."
Posted at 11:11 AM by Howard Bashman
"To Kill or Not to Kill All the Lawyers? That Is the Question; Attorneys Object to Interpretation of Shakespeare's Line; 'Not a Slur.'" Jacob Gershman of The Wall Street Journal has this report.
Posted at 11:09 AM by Howard Bashman
"A plea to leave fate of health care subsidies to the Court": Lyle Denniston had this post yesterday at "SCOTUSblog."
"Josh Blackman's Blog" has a post titled "Opposition to En Banc Review in Halbig."
On Sunday at the "Balkinization" blog, Rob Weiner had a guest post titled "Politics By Other Means."
And yesterday at "The Volokh Conspiracy," Jonathan H. Adler had a post titled "Law by other means -- a response to Rob Weiner on Halbig."
Become the 3,000th follower of "How Appealing" on Twitter: Or don't. In the whole grand scheme of things, it probably doesn't make much difference either way.
Posted at 08:16 AM by Howard Bashman
Ninth Circuit rules that Barnes & Noble's "browsewrap" arbitration agreement isn't worth the pixels it's written on: The Recorder reports that "Ninth Circuit Spurns Web 'Browsewrap' Agreement." You can freely access the full text of this article via Google News.
Courthouse News Service reports that "Barnes & Noble Loses Bid for Arbitration on Appeal."
"Arizona Loose With Its Rules in Executions, Records Show": Fernanda Santos and John Schwartz had this article in yesterday's edition of The New York Times.
Posted at 08:04 AM by Howard Bashman
"One month later, Markel investigation continues": Sean Rossman has this article in today's edition of The Tallahassee Democrat.
Posted at 08:02 AM by Howard Bashman
Monday, August 18, 2014
"Supreme Court: Was gay marriage settled in 1972 case?" Robert Barnes has this article in today's edition of The Washington Post.
Posted at 10:25 AM by Howard Bashman
Sunday, August 17, 2014
"Black groups tell Supreme Court Ala. districts biased": Mary Troyan has this article in The Montgomery Advertiser.
Posted at 01:20 PM by Howard Bashman
"Where's the Justice at Justice?" Columnist Maureen Down has this op-ed in the Sunday Review section of today's edition of The New York Times.
Posted at 01:16 PM by Howard Bashman
"GOP moves to restrict court challenges of N.C. laws": The Charlotte Observer has an article that begins, "After passing laws imposing new conditions on abortions and elections, taking away teacher tenure and providing vouchers for private school tuition, Republican state legislators have seen those policies stymied in state and federal courtrooms."
Posted at 01:14 PM by Howard Bashman
"SCOTUS ruling might handcuff school safety": Today's edition of The Cincinnati Enquirer contains a front page article that begins, "It's been a longtime, informal practice in many schools: Principals -- on occasion and when warranted -- confiscate and search cellphones if students are suspected of wrongdoing."
Posted at 01:12 PM by Howard Bashman